P.K. Bahri, J.
(1) The petitioner has filed this writ petition under Article 226 of the Constitution of India seeking a writ for quashing the orders of the disciplinary authority and the Standing Committee of the Municipal Corporation of Delhi by which the service of the petitioner had been terminated and he has prayed for directions for reinstatement with all back wages.
(2) The petitioner was working as Lower Division Clerk and was posted as T.T. Clerk at Shahdara U.P. Border T.T. Post, Delhi. On October 24, 1977, the petitioner collected octroi tax. But according to him, he could not reconcile the total and he took the Ttr Book No. 219 to his house, but he lost the said book and he verbally explained to his superior officer on October 29, 1977, about the loss of the said book and he had collected Rs. 2932/IOP. as the tax pertaining to the said Ttr Book No. 219 and after obtaining the permission of the superior officer he deposited the said amount in the treasury. The petitioner was, however, suspended on November 1, 1977 and he was charge-sheeted for his failure to maintain absolute devotion to duty and maintain absolute integrity and he was charged with gross misconduct and negligence. A departmental inquiry was duly held and the Inquiry Officer after recording the evidence and hearing the arguments, gave a finding that there was no malafide motive of the petitioner in delaying the deposit of the tax collected and it was also not proved that the petitioner had not maintained integrity while in service. He, however, held that the petitioner was guilty of misconduct inasmuch as he had lost t Ttr Book and had retained the amount belonging to the Corporation with him from October 24, 1977 to October 29, 19/7, in violation of the Rules. He also held that there was no evidence that the petitioner had, with any malafide intention, charged any less amount as terminal lax from any person. He also held that there is no evidence brought on record to prove that the petitioner had realised any more amount in respect of the receipts Nos. 349 to 400 pertaining to Ttr Book No, 219 except the amount of Rs. 2932/IOP. which has been deposited by the petitioner. It is mentioned by the petitioner that on the basis of this inquiry report the Commissioner gave him notice to show cause why penalty of removal from service which shall not be disqualification for future employment be not imposed upon him. It was mentioned in that notice of the Commissioner, Municipal Corporation of Delhi, that the petitioner had been found guilty of misappropriating huge amount of the Municipal Corporation of Delhi which was a very serious matter. According to the petitioner, he gave a reply to the said show cause notice and highlighted that no finding has been given against him of his having misappropriated any huge amount belonging to the Corporation, but the Commissioner without giving any reason imposed the proposed penalty vide his order dated September 21, 1981 (Annexure 'D'). The petitioner filed an appeal but the same also came to be dismissed vide order dated December 21,1981. The petitioner has challenged the said orders on the ground that the extreme penalty has been imposed by the disciplinary authority on the basis of a wrong inference from the report of the Inquiry Officer mentioning that the petitioner has misappropriated any huge amount belonging to the Municipal Corporation of Delhi. He also has urged that the charge of misconduct/negligence cannot be stated to have been proved against him as held by the Inquiry Officer in view of the fact that the Inquiry Officer admitted that the petitioner had no malafide intention in keeping the said amount belonging to the Corporation with him for 4-5 days. I need not refer to many other grounds raised in the writ petition as the learned counsel for the petitioner has, in fact, confined his arguments only to the point that the penalty of dismissal imposed on the petitioner is not commensurate with the offence committed by the petitioner and wrong facts had been taken into consideration while imposing the extreme penalty.
(3) Counter has been filed on behalf of the Municipal Corporation of Delhi by Shri J.P. Goel, Municipal Prosecutor. The petitioner was charged with the following facts :
(I)the petitioner recovered terminal tax for 31 quintals of cotton yarn instead of 67 quintals loaded in Truck No. 7560-USN ; (ii) that the petitioner failed to deposit a sum of Rs. 2,932/10P. into the Municipal Treasury which was collected by him vide it Book No. 219 and receipt Nos. 349 to 400, on October 24, 1977 and he came to deposit the said amount on October 31, 1977, under the orders of Deputy Commissioner ; and (iii) the petitioner was responsible for the loss of Ttr Book No. 219.
The Inquiry Officer held that the first charge was not proved, while be held that the other two charges stood proved. There was no charge against the petitioner that he misappropriated any huge amount belonging to the Municipal Corporation of Delhi. The only charge was that he had collected the sum of Rs. 2,932/IOP. as octroi tax on October 24, 1977 and he deposited the same on October 31, 1977 with the Municipal Treasury and that too under the orders of the Deputy Commissioner, and that the petitioner is also guilty of having lost the Ttr Book No. 219. So, it was wrong on the part of the Municipal Commissioner to have mentioned in the show cause notice with regard to the proposed penalty that the petitioner had misappropriated huge amount belonging to the Corporation. The order of termination of services of the petitioner also does not show that the Commissioner had realised the mistake and had not kept in view the wrong observations made by him regarding allegation that the petitioner had misappropriated huge amount belonging to the Corporation. Counsel for the petitioner has drawn my attention to Shankar Dassv. Union of India & Another, : (1985)IILLJ184SC . In the cited case the government servant was convicted of a criminal charge under Section 409 of the Indian Penal Code on the facts that he had committed breach of trust in the sum of Rs. 500.00 . The government servant had repaid that amount and had pleaded guilty to the charge. He was given benefit of Section 4 of the Probation of Offenders Act. On the basis of this conviction the government servant was dismissed from service. While releasing the convict on probation, the Magistrate had made certain observations that it was under the force of adverse circumstances that the convict had kept back the money and under some compelling circumstances he could not deposit the money in time. The Hon'ble Supreme Court held that it is to be lamented that despite these observations of the Magistrate the Government chose to dismiss the appellant in a huff without applying its mind to the penalty which could appropriately be imposed upon him in so far as his service career was concerned. It was further observed that the power like every other power has to be exercised fairly, justly and reasonably, and the Constitution does not contemplate that a Government servant who is convicted for parking his scooter in a no-parking area should be dismissed from service. It was further observed that the right to '.impose a penalty carries with it the duty to act justly. The Supreme Court held that the penalty of dismissal from service imposed in that case was whimsical and it set aside the said penalty. Then reference has been made to Bhagat Ram v. State of Himachal Pradesh & Others, : (1983)IILLJ1SC , where again a penalty of dismissal had been imposed. The Supreme Court found that it was proved that there was some negligence in performance of the duly by the appellant and his negligence. and performance in duty was likely to cause some loss to the government but, in fact, no loss had been caused. While setting aside the order imposing the penalty of removal from service on some other grounds also, the Supreme Court held that it would not be conducive to the interest of justice to remanding the case for holding any fresh inquiry and keeping in view a very minor infraction of duty leading to a trivial charge of negligence in performance of duty which has caused no loss of the Government, the Supreme Court held that it would not be fair that the Government servant should lace the hazards of fresh inquiry. The Supreme Court proceeded to set aside the order of dismissal and imposed a minor penalty of stoppage of two increments with future effect with a direction that he be paid only 50% of the arrears of salary from the date of termination till the date of reinstatement. In the present case, it is quite clear that no loss proved to have been caused to the Municipal Corporation inasmuch as the amount of tax collected by the petitioner was deposited in the Municipal Treasury. The disciplinary authority committed a grave error in mentioning in the show cause notice regarding proposed punishment that the petitioner had committed gross misconduct by misappropriating huge amount belonging to the Corporation which is not true and no such finding has been given by the Inquiry Officer and as a matter of fact there was no charge levied against the petitioner that he had misappropriated any huge amount belonging to the Corporation. So in view of the ratio laid down by the Supreme Court in the aforesaid two judgments it has to be held that it was not a fit case for imposing the extreme penalty of removal from service. No useful purpose would be served now remanding the case back to the disciplinary authority for imposing any other penalty. It is better that the agony of the petitioner is brought to an end by imposing a minor penalty as was done by the Hon'ble Supreme Court in the case of Bhagat Ram (supra). Counsel for the petitioner frankly did not urge any other point. Hence, I make the Rule absolute and allow the writ petition and quash the impugned orders and impose the penalty of stoppage of two increments with future effect and direct that the petitioner be paid 50% of the arrears of his salary etc. from the date of termination till the date of reinstatement. The petitioner be reinstated in his post immediately. The petitioner has partially succeeded, so I leave the parties to bear their own costs.