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Rajendra Vipnan Sahakari Samiti Ltd. v. Harcharan Kada And Another

Madhya Pradesh High Court

Mar 4, 1994

Judgment

Subsequent
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Structured Summary of the Provided Legal Opinion

Factual and Procedural Background

The petitioner is a co-operative consumer society registered under the M. P. Co-operative Societies Act, 1960. Respondent No. 1 was employed by the society as a salesman and Amrit Lal Mishra was the Manager. On inspection and audit of stocks, respondent No. 1 was found guilty of shortage and defalcation; the society passed a resolution on 8-4-1972 and the President terminated the respondent's services on 11-4-1972 (surcharge/termination). The respondent challenged the surcharge order and the Joint Registrar, in appeal No. 77/42/81, set aside the surcharge/recovery by order dated 10-2-1982. After that became final, the respondent raised a dispute under Section 55(2) of the Act seeking declaration that his termination was illegal; that dispute was dismissed by the Assistant Registrar as not raised within 30 days and confirmed by the Joint Registrar.

The Board of Revenue, in second appeal, allowed the respondent's appeal by order dated 8-3-1984 and directed reinstatement by fresh appointment, observing that although the dispute was time-barred, it exercised inherent powers because the basis of termination (surcharge/embezzlement) had been wiped out. The petitioner filed M.P. No. 351 of 1984 challenging that Board of Revenue order; the respondent was reinstated (fresh appointment) from 18-7-1984.

After being in employment for about three years, the respondent was served with a charge-sheet dated 20-7-1987 alleging defalcation of Rs. 12,996.28. An ex parte domestic enquiry was held (respondent did not participate) and, on its basis, the society terminated the respondent on 22-2-1988. The respondent raised a dispute under Section 55(2); the Assistant Registrar dismissed the dispute on 26-12-1989 and the Additional Registrar confirmed on 6-10-1990. The respondent preferred a second appeal to the Board of Revenue which, after perusing enquiry records and hearing parties, set aside the termination order by holding that no evidence was produced by the society at the enquiry, that charges could not be said to be proved merely because the employee did not file a reply or participate, and that principles of natural justice and Rule 34(3) under Section 55(1) were not followed. That Board of Revenue order dated 2-12-1993 is the subject-matter of M.P. No. 86 of 1994. Both petitions before the Court challenge the two Board of Revenue orders described above.

Legal Issues Presented

Whether the Board of Revenue could, in exercise of inherent powers, entertain a dispute under Section 55(2) of the Act that was raised beyond the thirty-day period and direct reinstatement by fresh appointment (issue framed by petitioner in respect of the 8-3-1984 order).
Whether the domestic (ex parte) enquiry that led to the respondent's dismissal on 22-2-1988 was held in accordance with principles of natural justice and with Rule 34(3) framed under Section 55(1) of the Act, and whether the Board of Revenue was right to set aside that dismissal (issue framed by parties in respect of the 2-12-1993 order).
Whether the Court ought to entertain an application for certiorari under Article 226 to quash the Board of Revenue orders (question of exercise of writ jurisdiction and whether issuing the writ would produce injustice).
Whether the plea of loss of confidence in the employee (advanced by the employer) could be entertained at this stage despite not having been raised before the co-operative Courts or the Board of Revenue.

Arguments of the Parties

Appellant (Petitioner Society) — Principal Contentions (as represented by Shri R. D. Jain)

Under Section 55(2) of the Act, disputes must be filed within thirty days from the date of the order sought to be impugned; the first termination took place on 11-4-1972 and the dispute was raised on 4-6-1982 (beyond 30 days), so the Assistant Registrar and the Joint Registrar correctly held the dispute barred by time and should not have been entertained by the Board of Revenue.
The Board of Revenue's exercise of inherent powers to entertain a time-barred dispute and to direct reinstatement by fresh appointment was illegal and without jurisdiction.
In relation to the later domestic enquiry (1987–1988), the respondent was afforded opportunities to defend the charges but did not avail them; therefore the enquiry could not be held illegal merely because it was ex parte. If any illegality existed, the remedy should have been to remit the enquiry to continue from the stage it became illegal or to direct a fresh enquiry; the petitioner sought liberty to proceed with the enquiry and for the respondent to be entitled to monetary benefits only after conclusion.
The petitioner also contended loss of confidence in the respondent (a salesman in a post requiring confidence) and that an employee involved in misappropriation should not be thrust back on the employer's business.
In support, Shri Jain placed reliance on a number of authorities (listed in the opinion) to support the legality of enquiry and employer's powers regarding dismissal in confidence-related posts.

Respondent (Employee) — Principal Contentions

The respondent appeared in person and stated he had no means to engage a lawyer and that litigation adopted by the society had devoured his prime working years (about 22 years). He asserted that the Manager was actually responsible for embezzlement and that the Manager was attempting to make him a scapegoat.
The respondent noted that earlier surcharge proceedings involved both him and the Manager and that ultimately both were found guilty in those proceedings, but later the surcharge order was set aside and the society wrote off the debt instead of realising it from the Manager (certified resolution produced).
During the second disciplinary enquiry (1987–1988), the respondent raised objections and protested that if the enquiry were not dropped he would approach the courts; he contended that the society produced no evidence in the enquiry and that the enquiry report found him guilty merely because he did not participate.
The respondent's position, as described, was that the domestic enquiry lacked evidence and violated principles of natural justice, justifying the Board of Revenue's setting aside of the dismissal.

Table of Precedents Cited

Precedent	Rule or Principle Cited For (as stated in the opinion)	Application by the Court (how the opinion used or treated the precedent)
A.M. Allison & H.P. Brigg v. B.L. Sen & Others, AIR 1957 SC 227	Relied on by the Court in the context of refusing to exercise Article 226 to produce an outcome that would restore a surcharge order and result in perceived injustice.	The Court relied on this authority to support its view that it should not exercise writ jurisdiction to assist the petitioner to achieve what would be an injustice to the respondent.
Punjab Sikh Regular Motor Service, Bilaspur v. Union of India, 1987 MPLJ 776	One of two Division Bench decisions of this Court relied on by the Court in the context above.	The Court relied on this Division Bench authority alongside others to justify not exercising Article 226 to aid the petitioner.
Banu Singh v. State of M.P., 1989 MPLJ 322	One of two Division Bench decisions of this Court relied on by the Court in the context above.	The Court relied on this Division Bench authority alongside others to justify not exercising Article 226 to aid the petitioner.
State of Punjab v. Gurdev Singh, AIR 1992 SC 111	Cited by Shri Jain (petitioner) in support of his contentions (as per the opinion).	The Court observed that reliance on this Supreme Court decision by Shri Jain was inappropriate and distinguishable on the facts of the present case.
Binod Bihari Singh v. Union of India, (1993) 1 SCC 572	Cited by Shri Jain in support of his contentions (as listed in the opinion).	The Court stated that reliance on this decision was inappropriate and distinguishable on the facts of the present case.
P. Joseph John v. State of Travancore, AIR 1956 SC 160	Cited by Shri Jain in support of his contentions regarding enquiry or employer's rights (as listed in the opinion).	Cited by the petitioner; the opinion records this as part of the petitioner's supporting authorities but does not indicate the Court adopting it for its reasoning.
Ghanshyamdas v. State, 1968 MPLJ 14 / AIR 1968 MP 132	Cited by Shri Jain in support of his contentions (as listed).	Cited by the petitioner; the opinion lists it among the authorities relied upon by Shri Jain without positive adoption by the Court.
Managing Director, ECIL v. B. Karunakar, (1993) 4 SCC 727	Cited by Shri Jain in support of his contentions (as listed).	Cited by the petitioner; no express adoption by the Court is recorded in the opinion.
Union of India v. C. L. Verma, (1993) 2 SCC 195	Cited by Shri Jain in support of his contentions (as listed).	Cited by the petitioner; the Court did not record adopting this authority for its decision in the opinion.
Khem Chand v. Union of India, AIR 1963 SC 687	Cited by Shri Jain in support of his contentions (as listed).	Included among authorities relied upon by the petitioner; the Court's opinion does not indicate it was applied.
S. P. Vishwanathan, (1991) 17 Administrative Tribunal Cases 923	Cited by Shri Jain in support of his contentions (as listed).	Cited by the petitioner; not specifically applied by the Court in the opinion.
Binny Limited v. Workmen, AIR 1973 SC 1403	Cited by Shri Jain in support of his contentions (as listed).	Cited by the petitioner; the opinion does not show the Court adopting this authority for its reasoning.
O. P. Bhandari v. Indian Tourism Development Corporation Ltd., AIR 1987 SC 111	Cited by Shri Jain in support of his contentions (as listed).	Cited by the petitioner; not specifically applied by the Court in the opinion.
Francis Klein v. Workmen, AIR 1971 SC 2414	Cited by Shri Jain in support of his contentions (as listed).	Cited by the petitioner; the Court's opinion does not indicate application of this case to its reasoning.
Kayastha Palhshala v. Rajendra Prasad, AIR 1990 SC 415	Cited by Shri Jain in support of his contentions (as listed).	Cited by the petitioner; the Court did not expressly rely on this authority in its reasoning as recorded in the opinion.
Michael's case, AIR 1975 SC 661	Cited by the Court for the proposition that an employer who genuinely and objectively believes that an employee in a confidence-sensitive post has betrayed trust may terminate services, but such belief must rest on tangible basis and be exercised in good faith with due care and prudence.	The Court invoked this authority to explain the legal principle governing termination on grounds of loss of confidence, while noting that the petitioner did not raise this plea earlier and that any suspicion must have tangible basis.

Court's Reasoning and Analysis

The Court proceeded by addressing the legal and factual matrix in sequence:

On the challenge to the Board of Revenue order dated 8-3-1984 (reinstatement by fresh appointment): the Court analysed the basis of the original termination, noting it was founded on surcharge/embezzlement proceedings. Because the surcharge order was subsequently set aside by the Joint Registrar, the factual ground that had justified the termination no longer existed. The Court regarded the dispute over termination as not simply a time-barred grievance: the cause of action for reinstatement arose only after the surcharge order was set aside, so the Board of Revenue's exercise of inherent powers to direct reinstatement was justified in the circumstances. The Court likened this situation to an employee who is suspended or terminated because of a prosecution and who gains a cause for reinstatement when the prosecution culminates in his favour. The Board did not award back wages but directed reinstatement by fresh appointment; the Court found nothing left to be decided in M.P. No. 351 of 1984.
On the challenge to the Board of Revenue order dated 2-12-1993 (setting aside dismissal following the 1987–88 domestic enquiry): the Court examined the enquiry record and concluded that the society produced no evidence at the enquiry to prove embezzlement. The enquiry officer proceeded even after the respondent objected, and the respondent was found guilty merely because he did not participate. The Court emphasised that even in ex parte enquiries the management must produce prima facie evidence to justify a finding of guilt; an enquiry cannot be an empty formality. Because there was no material, evidence or documents produced to prove the charges, and because principles of natural justice and Rule 34(3) (under Section 55(1)) were not followed, the Board of Revenue was right to set aside the termination.
On the petitioner's contention that the Board should not have directed reinstatement because it had lost confidence in the employee: the Court observed that this plea was raised for the first time before it and not before the co-operative Courts or the Board of Revenue; hence it could not be entertained at this stage. The Court reiterated the legal standard (citing Michael's case) that loss of confidence must rest on tangible basis, be exercised in good faith and with due care.
On whether the High Court should interfere under Article 226: the Court said writ jurisdiction is discretionary ("not of course") and, even assuming arguendo that the Board's order might be illegal, interference would not be appropriate since issuing the writ would effectively restore a surcharge order that was not in existence and would assist the petitioner to achieve an injustice to the respondent. The Court relied on A.M. Allison and other authorities to support refusal to exercise writ jurisdiction in these circumstances.
Finally, the Court considered equitable and pragmatic factors: the litigation spanned over two decades, had consumed the respondent's prime working years and left him with limited prospects for alternative employment. For these reasons the Court declined to entertain the petitioner's belated plea of loss of confidence and refused to set aside the Board of Revenue's orders on that ground.

Holding and Implications

Holding: Petitions dismissed. The Court dismissed both petitions and directed the petitioner to comply with the Board of Revenue's orders.

Direct consequences on the parties:

The petitioner (co-operative society) is directed to comply with the Board of Revenue's directions, including reinstatement as ordered by that authority.
The petitioner is ordered to pay costs of these two petitions to the respondent, quantified at Rs. 1,500/-.
The respondent is left free to challenge the order of surcharge (the Court noted this as an open option available to the petitioner/respondent as appropriate).

Broader implications:

The Court did not state that it was laying down any new legal precedent. It applied established principles: (a) limitation may not bar a claimant's right to seek reinstatement where the original ground for termination (e.g., surcharge/conviction) is subsequently removed; (b) domestic disciplinary enquiries must be supported by evidence even when held ex parte; and (c) loss-of-confidence dismissals must rest on tangible basis and be exercised in good faith. Beyond these applications, the opinion does not assert the creation of novel law.

Note: This summary is compiled strictly from the content and citations contained in the provided opinion. No information external to the opinion has been added.

Show all summary ...

1. Both these petitions are disposed of by this common order.

2. The petitioner, a Co-operative Society, is aggrieved of the order dated 8-3-1984 (Annexure P/7 in M. P. No. 351 of 1984) and order dated 2-12-1993 (Annexure P/l in M. P. No. 86 of 1994) both passed by the Board of Revenue, has filed these two separate petitions under Article 227 of the Constitution of India, has prayed for issuance of a writ of certiorari and/or other suitable direction or order for quashing the aforesaid two orders.

3. Brief facts leading to the petitions are thus. Petitioner is a co-operative society, registered under M. P. Co-operative Societies Act, 1960, for short, the Act', which is a consumer society, wherein the respondent No. 1 was employed as a salesman and of which one Amrit Lal Mishra is the Manager. On inspection and audit of stocks, the respondent No. 1 was found guilty of shortage and defalcation, hence, the society passed a resolution No. 3 on 8-4-1972 to terminate the services of the respondent. In pursuance of the resolution, the President of the Society terminated the services of the respondent No. 1 vide order dated 11-4-1972 (Annexure P/l in M. P. No. 351 of 1984). The respondent No. 1 raised a dispute under Section 64 of the Act, against the order of surcharge, ultimately, the Joint Registrar in appeal No. 77/42/81 vide order dated 10-2-1982 set aside the order of surcharge and recovery holding that the respondent No. 1 was neither guilty of shortage nor of any defalcation. After this order, which became final, the respondent No. 1, raised a dispute under Section 55(2) of the Act, for declaration of his termination as illegal. That dispute was dismissed by the Assistant Registrar vide order dated 19-10-1982 as not raised within the period of 30 days from the dale of the order of termination. This order was confirmed by the Joint Registrar in appeal vide order dated 28-6-1983. The Board of Revenue, in second appeal, vide order dated 8-3-1984 (Annexure P/7 in M. P. No. 351 of 1984), allowed the appeal observing that though the dispute raised was beyond the period of limitation, but under inherent powers, directed reinstatement of the respondent by fresh appointment holding that the cause of termination is embezzlement in the surcharge proceedings, which, having been wiped out, there is no cause for not appointing the respondent. Hence, the petitioner, aggrieved of the order of the Board of Revenue, filed the M. P. No. 351 of 1984. As this Court did not grant any stay of the execution of the order of the Board of Revenue, the respondent was reinstated by giving a fresh appointment from 18-7-1984.

4. The respondent worked for a period of three years, thereafter was served with a charge-sheet dated 20-7-1987 wherein a charge of defalcation to the extent of Rs. 12,996.28 was levelled. Respondent No. 1 objected to issuance of charge-sheet contending that it is the Manager, who is responsible for defalcation, if any. Holding of the enquiry was also objected. An ex parte domestic enquiry was held wherein, the respondent having been found guilty of the charges, his services were terminated vide order dated 22-2-1988, Annexure P/l 2 in M. P. No. 86 of 1994. Respondent raised the dispute under Section 55(2) of the Act, which was contested by the petitioner Society by its written statement (Annexure P/l4) filed on 30-5-1988. Petitioner Society produced the record of enquiry; the Assistant Registrar, Co-operative Societies, vide order dated 26-12-1989 (Annexure P/l 6 of M. P. No. 28 of 1994) dismissed the dispute; that order was confirmed in appeal by the Additional Registrar vide order dated 6-10-1990. Respondent preferred a second appeal before the Board of Revenue. After perusing the records of the enquiry, and after hearing parties, the Board of Revenue, set aside the order of termination holding that during enquiry, no evidence was produced by the Society to prove embezzlement. Only because the employee did not file the reply denying charges, and did not participate in the enquiry, the charges cannot be said to be proved without any evidence. The Board also observed that the principles of natural justice were not observed, nor the enquiry was held in accordance with Rule 34(3) of the Rules framed under Section 55(1) of the Act governing the terms and conditions of the employment. This order of the Board of Revenue (Annexure P/l, dated 2-124993) which is the subject-matter of challenge in M. P. No. 86 of 1994.

5. On issue of notice, respondent appeared in person and stated that he has no means to engage a lawyer. He submits that he was employed in the Society in his prime youth and because of the litigative attitude adopted by the Society, his prime period of his life of 22 years has already passed. He submits that in fact, the Manager of the Society who was responsible for all the embezzlement is dragging him in litigation to save himself, making him a scapegoat. The earlier surcharge proceedings of 1972 were not only against the respondent employee, but also against the Manager and both were found guilty, but only his services were terminated, ultimately when the order was set aside and which became final wherein the respondent was not found to be guilty, the Society wrote off the debt instead of realising it from the Manager vide Resolution No. 7 dated 29-6-1982 (certified copy produced before us). After fresh appointment as directed by the Board of Revenue, the Manager and the Society started finding fault with the respondent so that the respondent who is a low-paid employee, getting in all about less than Rs. 800/- per month, could be chucked off again. During enquiry, vide Annexures P/6, P/7 and P/8, the respondent raised objections and submitted that if enquiry is not dropped, he shall take recourse to the Court of law. But, the Manager, who was holding the enquiry, vide Annexure P/9, gave a last opportunity to produce evidence in defence and then gave a report (Annexure P/10) finding the employee guilty of defalcation, embezzlement, thereon the society passed the order of termination dated 22-2-1988 which was rightly set aside by the Board of Revenue.

6. Shri R. D. Jain, learned counsel for the petitioner Society contended that under Section 55(2) of the Act, the Registrar or any Officer appointed by him, not below the rank of Assistant Registrar, is empowered to decide the dispute provided such dispute is filed and entertained within thirty days from the date of order sought to be impugned. Admittedly, the first order of termination was passed on 11-4-1972 and a dispute was raised on 4-6-1982. Therefore, the Assistant Registrar and the Joint Registrar rightly did not entertain the dispute as barred by time, but the Board of Revenue, though held that the dispute was raised beyond 30 days, in exercise of inherent powers, illegally passed the order directing reinstatement.

7. The contention of Shri Jain that the order of the Board of Revenue, under inherent powers of entertaining a time-barred dispute and of reinstatement by fresh appointment is illegal and without jurisdiction, has no force in the facts of the case. We say so because, the termination order was based on the surcharge proceedings against the respondent, which could not have been challenged by the respondent unless the order of surcharge is set aside. When the order of surcharge was set aside, and the ground on which the order of termination was upset the respondent applied for allowing him to join his duty, but was refused, hence the respondent raised the dispute under Section 55(2) of the Act. The Co-operative Courts and the Board of Revenue proceeded in wrong premises holding that the dispute being barred by time, not raised within 30 days from the date of the order. The Society did not terminate the services of the respondent by holding a departmental enquiry, but passed the termination order on surcharge. Therefore, when the order of surcharge was set aside, cause of action arose to the respondent to join his duties, but, he was not allowed to do so. Therefore, respondent rightly raised the 'dispute' which, in the circumstances, cannot be said to be barred by time as the case of the respondent is similar to that of an employee who is kept under suspension or terminated because of a criminal prosecution against him and when the criminal prosecution culminates in favour of such employee, he gets a cause for his entitlement to be reinstated with or without back wages, as the case may be. In the present case, the Board of Revenue did not award any back wages, but directed reinstatement by a fresh appointment, on that the petitioner was reinstated. The petitioner after keeping the respondent in employment for a period of about 3/4 years, again terminated the services of the respondent. In the circumstances, in our opinion, nothing survives to decide this petition (M. P. 351 of 1984).

8. However, even assuming, for argument's sake, the order of the Board of Revenue to be illegal, this Court will not interfere as proceedings by way of certiorari under Article 226 are "not of course" and as we are satisfied that there was no failure of justice and if the writ is issued its effect would be restoring an order of surcharge which is not in existence and that order is the only ground of termination of the services of the respondent. Therefore, in our opinion, it would not be appropriate to exercise our jurisdiction under Article 226 of the Constitution of India to assist the petitioner to achieve injustice which has been caused to respondent by the acts of the petitioner and its Manager and for that, we rely on A.M Allison & H.P Brigg v. B.L Sen & Others, AIR 1957 SC 227, and two Division Bench decisions of this Court in Punjab Sikh Regular Motor Service, Bilaspur v. Union of India, 1987 MPLJ 776 and Banu Singh v. State of M. P., 1989 MPLJ 322. Reliance of Shri Jain on the decisions of the Supreme Court in State of Punjab v. Gurdev Singh, AIR 1992 SC 111; Binod Bihari Singh v. Union Of India., (1993)1 SCC 572, is inappropriate which are distinguishable on facts of this case.

9. Shri Jain, in the next petition further contended that the respondent was afforded an opportunity to defend the charges, but that opportunity was not availed of by the respondent, therefore, the enquiry could not have been held to be illegal and even if the enquiry was illegal, there ought to have been a direction to proceed with the enquiry from the stage, the enquiry was held to be illegal or a fresh enquiry ought to have been directed. As such, the petitioner be granted liberty to proceed with the enquiry with a direction that the respondent shall be entitled to his due monetary benefits after conclusion of the enquiry. It was also contended that the respondent was holding the post of Salesman, a post requiring confidence. It is difficult to exercise day-to-day supervision on the respondent; and when the respondent was found involved in the acts of misappropriation, such an employee should not be thrusted on by the Society. Shri Jain, in support of his contentions, placed reliance on P. Joseph John v. Slate of Travancore, AIR 1956 SC 160 and Ghanshyamdas v. State, 1968 MPLJ 14 = AIR 1968 MP 132; Managing Director, ECIL v. B. Karunakar, (1993) 4 SCC 727; Union of India v. C. L. Verma, (1993) 2 SCC 195; Khem Chand v. Union of India, AIR 1963 SC 687; S. P. Vishwanathan, (1991) 17 Administrative Tribunal Cases 923; Binny Limited v. Workmen, AIR 1973 SC 1403; O. P. Bhandari v. Indian Tourism Development Corporation Ltd., AIR 1987 SC 111; Francis Klein v. Workmen, AIR 1971 SC 2414 and Kayastha Palhshala v. Rajendra Prasad, AIR 1990 SC 415.

10. The services of the respondent were terminated on the misconduct of the charges of embezzlement proved against him in the domestic enquiry. The Enquiry Officer, without considering the objections raised by the respondent about the involvement of the Manager who, to save his misdeeds, got issued the charge sheet, proceeded with the enquiry. In the enquiry, Society did not lead any evidence to prove the charges. The respondent was held guilty merely because the respondent did not participate in the enquiry. The enquiry should not be an empty formality, even in an ex parte enquiry, Management, to prove charges, has to make out a prima facie case by evidence to hold the delinquent guilty of the charges. But, for that, there was no material, no evidence, no documents. Therefore, the Board of Revenue, in our opinion, was right in setting aside the order of dismissal.

11. The petitioner's submission that the Board ought not to have directed reinstatement, being not conducive as the petitioner has lost confidence in the respondent, but, this plea cannot be entertained in these proceedings for the first time, as it was not raised before the co-operative Courts and the Board of Revenue in second appeal. Besides, law is well-settled that when an employer who believes or suspects that his employee, particularly, holding a post requiring confidence, has betrayed that confidence, can terminate the services without any stigma attaching to the discharge. But, such belief or suspicion of the employer should not be a mere whim or fancy. It must rest on some tangible basis and the power has to be exercised by the employer objectively in good faith, honestly with due care and prudence. See AIR 1975 SC 661, Michael's case. Besides, when there is a dispute of such a nature, it is the Court, trying the dispute, while exercising the discretion judicially, can direct reinstatement with or without back wages or in lieu of reinstatement, grant compensation.

12. In this case, facts are eloquent. In fact, it is a case of marathon legal battle between a workman and the employer wherein, the workman is a victim of Management's exploitation and is an instance where the respondent workman has been forced by the petitioner Society in endless litigation. It is an unequal fight between the workman and his employer which is being fought more than 22 years wherein the respondent has passed his prime youth and is now nearing advanced age. He will not be able to get any alternative employment. Therefore also, we refuse to entertain the plea of loss of confidence. However, we do not express any opinion whether the petitioner can still proceed with the enquiry into the charges or not. It is open to the petitioner to take proceedings which they may be advised in accordance with law. The respondent shall also be at liberty to challenge the order of surcharge.

13. In the result, the petitions are dismissed with costs. Petitioner is directed to comply the order of the Board of Revenue. They shall pay the costs of these two petitions to respondent, which we quantify as Rs. 1,500/-.