Important Point
When there was clear admission of employee in writing of temporary misappropriation of entrusted amount for over eight months, the change of misconduct stood proved on said admission.

JUDGMENT

S.B. Majmudar. J. - Leave granted.

2. By consent of learned advocates of parties the appeal was finally heard and is being disposed of by this judgment. Respondent No. 1 was was an employee of the appellant. He was alleged to have misappropriated an amount of Rs. 21,094.80. The said misconduct was detected on 8th December 1984. The amount was collected by him partly in March 1984 and partly in August 1984. The said amount was payable to class III and IV employees of the appellant on account of bonus and other allowances after deduction from provident fund. This amount was required to be deposited in the Post Office Account of employees individually by respondent No.1 along with his associate and for that purpose he had taken this amount from the office of appellant. Instead of depositing the said amount it was kept by respondent no.1 and on detection the amount was tendered only on 14th December 1984. Thus there was temporary misappropriation of this amount for a period of eight months and less. Respondent No.1 and his associate have admitted this fact in writting and deposited the amount on 15th December 1984. After a departmental enquiry the respondent no,1 was dismissed from service on 29th November 1985. Respondent No.1 s statutory appeal before the appellant authority failed. He thereafter filed writ petition in the High Court of Judicature at Allahabad. His writ petition came to be allowed by the learned single Judge on the ground that the authorities had not given adequate opportunity to respondent no.1 to defend as he was not permitted to examine witnesses nor was he supplied documents asked for by him. Accordingly the dismissal order was quashed and set aside. Appellant was directed to reinstate respondent no.1 with full back wages. It is this order of the High Court which is brought in challenge by the appellant.

3. The learned counsel for the appellant vehemently submitted that when respondent no.1 had himself admitted in clearest terms that he had failed to deposit the amount entrusted to him and that it was due to his negligence, carelessness and fault, nothing further survived and he was rightly dismissed from service. So far as the non-supply of documents and non-examination of witnessesis concerned it was submitted that respondent himself had stated before the enquiry officer that he had not to give ay documentary or oral evidence. There was no question of the enquiry getting vitiated on account of rejection of the subsequent request of the respondent no.1 to examine four witnesses. Learned counsel for the respondent on the other hand submitted that the decision rendered by the High Court was quite justified on the facts of the case and in addition he submitted that even the copy of the enquiry report should have been given to the respondent no.1 and as that was not done the order of dismissal had got vitiated. Learned counsel also filed his written submissions in support of the aforesaid oral submissions.

4. Having considered the rival contentions and also having gone through the written submissions filed on behalf of respondent no.1 we filed that the order of the High Court cannot be sustained. So faras non-supply of Enquiry Officer s report is concerned it has to be kept in view that no such contention was raised in the writ petition before the High Court. The High Court has noted this aspect. Nothing could be pointed out to us by learned counsel for respondent to controvert this observation of the High Court. Whether the pleadings in the writ petition should be treated as pleadings in a suit or not is not relevant for deciding this question. Reliance placed in the written submission on R.v. Barnsley Metropolitan Borough Counsel1 also is of no avail to respondent no.1. The said decision cannot support the contention canvassed on behalf of the respondent no.1 that even if there is no grievance made in the writ petition the High Court is bound to consider the said grievance. So far as the grievance a