Rajesh Prasad Vs. the Bihar State Food and Civil Supplies Corporation and ors. - Court Judgment

Excerpt:
- motor vehicles act, 1988[c.a.no.59/1988] section 166; [a.k. patnaik, cj, a.k. gohil & s. samvatsar, jj] application for compensation for personal injury death of injured claimant subsequently for some other reasons held, claim for personal injury will abate on the death of claimant. claim will not survive to his legal representative except as regards claim for pecuniary loss to estate of claimant.1. this appeal has been filed against the order dated 5.7.2005, passed by learned single judge in w.p.s. no. 2652 of 2005 dismissing the writ petition filed by the appellant.2. the appellant was salesman in bihar state food corporation. a departmental proceeding was initiated against him. charges were with regard to defaulcation of amounts while posted at different places, insubordination, dereliction of duty etc. in his show cause, the appellant denied the charges. the enquiry officer on consideration of the materials on record found that the charges were proved against him and suggested major punishment. second show cause notice was issued to which the appellant filed his reply. the disciplinary authority agreeing with the findings of the enquiry officer, passed order of punishment of dismissal; recovery of the defaulcated amount with interest; and payment of only subsistence allowance, during the suspension period. the appellant preferred appeal against such order. the appellate authority considered the whole matter and affirmed the order of punishment. against the said orders, the appellant filed the writ petition in question. learned single judge found that the first and second charges were proved against the appellant and the defaulcated amount was recovered form his salary and therefore even assuming that the third charge was not proved against him, the aforesaid two charges were more than sufficient for dismissing the appellant from service and that the order of dismissal of the appellant at no stretch of imagination can be held to be illegal, arbitrary and unjustified. against this dismissal of the writ petition, this appeal has been filed.3. mr. shivnath, learned senior counsel appearing for the appellant, took us to the entire materials on record and submitted that the enquiry report was perverse; the appellant was not given opportunity to contest the audit report relied by the enquiry officer; the enquiry officer could not suggest punishment in his enquiry report; if advance taken was not returned, it could not be termed as defaulcation specially when the amount of alleged defaulcation was recovered from the salary of the appellant; non protest to the recovery did not amount to admission of guilt by the appellant; and that other persons, who have also defaulcated amounts, arc retained in service.4. the said submissions are wholly untenable. mr. shivnath could not show how the enquiry report is perverse. for the first time it is alleged before us and that too orally that the appellant was not given opportunity to contest the audit report relied by the enquiry officer. there was nothing wrong if the enquiry officer suggested punishment. if advance taken is not returned, certainly it is defaulcation.the impugned order is liable to be upheld only on the ground that the charge no. 1 with regard to defaulcation was not denied by the appellant. his contention was that such amount was already recovered from his salary. he never raised any objection against such recovery. thus charge no. 1 stood proved. even if one charge is proved, punishment can be awarded accordingly.5. it is also a settled position that the writ court cannot sit in appeal over the order passed by the disciplinary authorities unless the same is perverse or suffers from any serious procedural error causing prejudice to the delinquent. re-appreciation of the materials on record and the findings recorded by the enquiry officer; the disciplinary authority and the appellate authority, confirmed by learned single judge is not permissible.in the facts and the circumstances of this case, we find that this appeal has no merit and it is wholly frivolous. accordingly, it is dismissed. however, no costs.