The main legal point established is that lack of efficiency and negligence do not ipso facto constitute misconduct, and the punishment should be proportionate to the proven charges.

1. H.P.Gupta the appellant herein while employed in the Vivekananda Mahila College, Vivek Vihar Delhi (in short the College) affiliated to the University of Delhi was charge-sheeted with the following Articles of charge:

“ARTICLE – I When the main account of the College was checked by the Principal on 1st September, 1982 and the cash balance was verified physically, a shortage of Rs.41.01 (Rupees Forty one and paise one only) was detected. The amount had apparently been misappropriated for his personal use, Shri H.P. Gupta to us failed to maintain absolute integrity and his action amounted to misappropriation of College funds. ARTICLE – II

When the account books of Alumni Association were checked by the Principal in 1st September, 1982 and the physically verification of the cash belonging to Alumni Association was done, it was detected that a sum of Rs.989.67 (Rupees Nine Hundred Eight Nine and Paise sixty seven only) was missing. The said amount had apparently been misappropriated for his personal affairs. Shri H.P.Gupta thus failed to maintain absolute integrity and his action amounted to misappropriation of College Funds. ARTICLE – III According to the existing orders the fees are to be accepted only from these students who are declared successful and promoted to the next higher class. Nevertheless, Shri H.P.Gupta accepted fees from the following three students:- 1. Poonam Jain – Roll No.21 – III year 2. Arvinder Kaur – Roll No.363 – III year 3. Kamlesh Kumari – Roll No.384 – III year without verifying the results, and in the case of two students even after noting and receiving the College notification dated 27th July, 1982 whereby the names of these students were removed from the College rolls. This resulted in permitting these students to attend the classes to which they had not been promoted. This action on the part of Shri H.P.Gupta not only shows complete and wilful neglect of duty but also placed the College in a highly embarrassing position. ARTICLE – IV It has been noticed that while Kamlesh Kumari actually paid for fees on 16th August, 1982, Shri H.P.Gupta stated in his note dated 13th August, 1982 that Kamlesh Kumari had already paid the dues. Shri H.P.Gupta thus made a false statement deliberately misleading the administration for same ulterior motive. This amounts to misconduct on his part.”

2. The enquiry officer appointed by the Governing Body of the College after conducting an enquiry held the first three charges to be proved and charge No.4 to be partially proved. The disciplinary authority served H.P.

Gupta with a show cause notice proposing penalty of dismissal from service. The disciplinary authority awarded termination of service with immediate effect under Rule 67(vi) read with Rule 74(4)(ii) of the University Non-Teaching Employees (Term and Condition of Service) Rules, 1971 (in short the Rules).

3. Aggrieved by the termination of service H.P.Gupta filed an appeal before the appellate authority which converted the penalty of termination of service to that of compulsory retirement with effect from the date of termination i.e. March 20, 1985 for the reason that the appellate authority found that Article No.1 and Article No.2 of the charge-sheet were not proved, only Article No.3 was proved and Article No.4 was partially proved observing negligence. H.P.Gupta challenged the order of compulsory retirement by way of a writ petition being W.P.(C) No.2551/1991 which was dismissed vide the impugned order dated July 16, 2009, hence the present appeal.

4. Learned counsel for H.P.Gupta contends that the appellate authority and the learned Single Judge failed to notice that the charge-sheet was a counterblast to the earlier actions of H.P.Gupta wherein he had pointed out anomalies in utilization of the College funds including payment made to the Principal in the shape of dearness allowance from March to July 1982 in connivance with her niece who prepared the salary bills and the Section Officer who chec