VIRENDER  Vs UNION OF INDIA & ORS.

W.P. (C) 286/2021 Page 1 of 4
$~S-20
* IN THE HIGH COURT OF DELHI AT NEW DELHI

+ W.P.(C) 286/2021 & CM APPL. 725/2021
VIRENDER ….. Petitioner
Through Mr.Raj Singh, Advocate.

versus

UNION OF INDIA & ORS. ….. Respondent s
Through Mr.Akshay Amri tanshu with
Mr.Anirudh Shukla, Advocates for
UOI.

% Date of Decision: 08th January, 2021

CORAM:
HON’BLE MR. JUSTICE MANMOHAN
HON’BLE M S. JUSTICE ASHA MENON

J U D G M E N T
MANMOHAN , J: (Oral)
1. Present writ petition has been filed challenging the order dated 19th
October 2020 passed by the Respo ndent No. 3, while hearing a revision
petition , against appellate order dated 30th/31st December, 2019 dismissing
the appeal challenging the final order of removal from service passed by the
Disciplinary Authority vide order dated 16th July 2019.
2. Learned C ounsel for the petitioner submits that the material witness ,
Ex-Assistant Commandant/DDO Shri Tapan Kumar Mukharjee (PW-1),
who was a signatory to the cheque No. 356555 dated 25th January 2019 , had
2021:DHC:75-DBW.P. (C) 286/2021 Page 2 of 4
not been examined in the departmental enquiry. According t o him, non –
examination of the material witness was prejudicial to the case of the
petitioner as without the deposition of the PW -1, the Enquiry officer could
not have proceeded to complete the departmental enquiry.
3. Learned Counsel for the petitioner submit s that as recovery of
Rs.23000 (Twenty three thousands only) ha d been made from the salary of
the petitioner , he could not have been removed from the service vide order
dated 19th October 2020 as that would amount to double
jeopardy/ punishment for the same offence .
4. Per contra, learned counsel for the respondents refers to the final order
of removal dated 16th July, 2019 passed by the Disciplinary Authority,
wherein it was held that the statement of PW -1 was not recorded with the
consent of the petitioner. Since learned counsel for the respondents has
placed heavy reliance on the final order of removal from service, the
relevant portion of the same is reproduced hereinbelow: –
“…..Prosecution witness serial number 01 was summoned vide
inquiry notice No.355 , 395, 448 of dated 16.04.2019, 26.04.2019
and 09.05.2019 in series for the day to day proceedings for dated
25.04.2019, 08.05.2019 and 15.05.2019 respectively, but the
prosecution witness No.01 never presented in the departmental
enquiry proceedings. Due to which the statement of prosecution
witness number 01 could not be recorded. The presenting officer
requested the Enquiry officer in this regard to proceed with the
inquiry without recording the statement of PW 01 and after
perusal of the same, the inqu iry was carried out and completed
without recording the statement of PW -01 with the consent of the
accused force member. After recording the statement of the
prosecution, the statement of DW -01 and DW -02 of the defense
was also recorded on 20.05.2019 and 21.05.2019 respectively
2021:DHC:75-DBW.P. (C) 286/2021 Page 3 of 4
and departmental inquiry was completed…… Therefore,
according to his statement, HC/Clerk Virender has admitted his
mistake and error himself. In the above statement, the accused
force member himself admitted that he made a with drawal of Rs
23,000/ – from the SBI, Kandsar branch through cheque number
356555. Since HC/Clerk Virender was posted under Office
Order No.3591 dated 10.10.2017 as in -charge of non –
governmental secti on, it was his responsibility to ensure all the
transacti on matters as in -charge as per rules. Despite being a
clerk, his statement that “he withdrew Rs.23,000 at the behest of
his senior HC/clerk J.K. Gurjar” does not seem to be correct or
reasonable, because at that time he himself was working as in –
charge an d it was his own responsibility to do the transaction of
money as per rules. Transaction of financial matters does not
seem to be true at the behest of any other force member without
the approval of the competent authority and without making any
P.V. (pay ment voucher)…..Even assuming that he did this by
relying on his senior, then after a few days when he did not find
his complete entry and P.V., he should have exposed the matter
himself, but he did not do it, which shows that he never told
anyone about this matter of financial embezzlement, even after
fully knowing it, because he himself was involved in this and
without his involvement such withdrawal, fraud and
embe zzlement was not possible. ”
5. Having heard learned counsel for the parties, this Court fin ds that
PW-1, Sh.Tapan Kumar Mukharjee was not examined in the departmental
enquiry with the consent of the petitioner.
6. Further, in the present case the deposition of PW -1 is not of much
relevance as he was only a signatory to the cheque and withdrawal fr om the
bank was neither denied nor disputed by the petitioner. What was in dispute
was as to how the cash withdrawn was spent and why it was not accounted
for by the petitioner. Consequently, the petitioner cannot raise any
grievance on this ground.
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7. From the impugned order, it is also apparent that the petitioner had
admitted his mistake/error .
8. There is no question of double jeopardy inasmuch as the recovery of
the defalcated amount and disciplinary proceedings are separate and
independent remedies and one cannot operate as a bar against the latter .
9. Consequently, the present writ petition and pending application being
bereft of merit are dismissed.
10. The order be uploaded on the website forthwith. Copy of the order be
also forwarded to the learned couns el through e -mail.

MANMOHAN, J

ASHA MENON , J
JANUARY 08, 2021
KA

2021:DHC:75-DB