Central Administrative Tribunal - Cuttack
P Dash vs D/O Post on 19 February, 2025
1 O.A.No. 260/00055 of 2019
CENTRAL ADMINISTRATIVE TRIBUNAL
CUTTACK BENCH, CUTTACK
O.A.No. 260/00055 of 2019
Reserved on 03.02.2025 Pronounced on 19.02.2025
CORAM:
THE HON'BLE SHRI SUDHI RANJAN MISHRA, MEMBER (J)
THE HON'BLE SHRI PRAMOD KUMAR DAS, MEMBER (A)
Patitapaban Dash, aged about 60 years, S/O-Late
Brajabandhu Dash, AT/PO- Rudrapur, Via- Chhatia,
Dist-Cuttack, presently working as GDS MD
Rudrapur (under put off duty)..
......Applicant
VERSUS
1. Union of India, represented through its Director
General of Posts, Govt. of India, Ministry of
Communication, Department of Posts, Dak
Bhawan, Sansad Marg, New Delhi, 110001.
2. Chief Post Master General, Odisha Circle,
Bhubaneswar, Dist- Khurda, 751001.
3. Superintendent of Post Offices, North Division,
At/PO/Dist- Cuttack, 753002.
4. Inspector of Post Offices, Dharmasala Sub-Division,
At/PO/Dist-Jajpur 755008.
......Respondents
For the applicant : Mr. D.P.Dhalsamant, Counsel
For the respondents : Mr. B.N.Swain, Counsel
2 O.A.No. 260/00055 of 2019
O R D E R
SUDHI RANJAN MISHRA, MEMBER (JUDL.):
As it reveals from the records, the applicant, Patitapaban Dash, was appointed as GDS MD of Rudrapur BO in account with Chhatia PO on 26.05.1981. He while working as such was ordered to discharge the duties of GDs BPM of Rudrapur BO in addition to his own duty w.e.f. 01.06.2000 on payment of combined duty allowance.
He suddenly absconded and remained unauthorized absent from his duty w.e.f. 12.07.2007 and, therefore, the Overseer Mail of Cuttack Central Sub-Division took the charge of BPM Rudrapur BO.
1.1 During inspection on 11.09.2007, suspected fraud in RD Passbook was noticed so also verbal complaints were received regarding committing of fraud by the applicant. Preliminary inquiry was conducted on 29.09.2007. During preliminary inquiry, it was also noticed that the applicant had taken the deposits from as many as 16 number of accounts/depositors, authenticated the deposits under his initial and BO Stamp on respective dates in support of acceptance of the deposits but did not credit/take the same in the BO 3 O.A.No. 260/00055 of 2019 account, some of which was also admitted by the applicant. The total amount involved in the fraud case came to Rs. 5,58,788/- in which permanent loss was of Rs. 3,83,437/-.
1.2 In contemplation of disciplinary proceedings, he was placed under off duty with immediate effect vide order dated 06.11.2007.
The CBI took up the matter on 24.09.2008 under Case No. RC0152008A0024 and based on the FIR TR Case Nos. 16, 17, 18, 19, 20, 21, 22, 23, 24 and 25 of 2009 were registered against the applicant before Learned Special Judge, CBI, Bhubaneswar under Section 409 of IPC and Section 13(2) read with 13(1) (c) and 13(1)(d) of Prevention of Corruption Act, 1988.
1.3 The applicant was acquitted by the Learned Special Judge, CBI in TR Case No. 18/2009 on 28.01.2013, TR Case No. 20/2009 on 29.11.2013 and TR Case No. 22/2009 on 30.01.2013. While the rest of the TR cases were under adjudication before the Learned Special Judge, CBI, Bhubaneswar, disciplinary proceedings was initiated against the applicant under Rule 10 of GDS (C&E) Rules 2011 vide Memo dated 01.05.2014, and, vide memo dated 18.06.2014 IO and PO were appointed to conduct inquiry.
4 O.A.No. 260/00055 of 20191.4 The IO intimated the applicant vide memo dated 30.05.2015 regarding holding of preliminary inquiry on 13.06.2015. The date of preliminary inquiry was deferred to subsequent dates by the IO on the request of the applicant. On 11.05.2016, the applicant was acquitted in TR Case No. 25/2009. The applicant submitted representation on 12.05.2017 requesting the Disciplinary Authority (DA) to drop the proceedings in view of his acquittal in the criminal case stating that the allegation in the departmental proceedings being same and similar to that of the criminal case. 1.5 Thereafter, the applicant filed this OA on 07.12.2018 praying inter alia to quash the charge sheet dated 01.05.2014 and to treat the entire period of his off duty as duty with grant of all consequential benefits. The above prayer has been made by him on two counts; one is for the delay initiation of disciplinary proceedings and other is on the ground that the allegation, documents and witnesses based on which the department sought to establish the allegation in the departmental proceedings are same and similar to that of the criminal case and the applicant having been acquitted in criminal 5 O.A.No. 260/00055 of 2019 case, the departmental proceeding initiated vide memo dated 01.05.2014 are liable to be quashed.
1.6 In support of delay in initiation of disciplinary proceedings, he has placed reliance on the decision of the Hon'ble Apex Court in the case of State of A.P. vs N.Radhakishan, 1998 SC (L&S) 1044 and for the later ground he has relied on the decision in the case of Ram Lal Vs State of Rajasthan & Ors, CA No. 7925 of 2023 and the decision of the Hon'ble High Court of Orissa in the case of Samir Ranjan Sahoo Vs. State of Odisha & Ors, 2021 (II) ILR CUT-787. It has been stated that as per Rule 82 of P&T Manual Vol-III it is not permissible to hold departmental inquiry in respect of the charge based on same fact or allegations which have already been examined by the Court of competent jurisdiction
2. Respondents filed their counter contesting the case of the applicant. Ld. Counsel appearing for the respondents by placing reliance on the stand taken in the counter has submitted that the delay in issuing the charge sheet was due to non-cooperation of the applicant in the investigation and for some unavoidable difficulties in the administrative procedure related to fraud committed by him. 6 O.A.No. 260/00055 of 2019 2.1 In terms of the DoP&T OM F.No. 11012/6/2007-Estt (A-III) dated 21.07.2016, there is no bar in law for initiation of simultaneous criminal and departmental proceedings on the same set of allegations. It is contended that acquittal of the applicant in the criminal case does not debar the respondents from taking action according to departmental rulings; the very concept of both the proceedings being different and distinct. The departmental proceedings was initiated against the applicant for violation of Rule 131, 134 of Branch Office Rules, 6th Edition thereby failure to maintain absolute integrity and devotion of duty as enjoined in Rule 21 of GDS (C&E) Rules, 2011 whereas criminal case was instituted against him for breach of Section 409 of IPC and Section 13(2) read with 13(1) (c) and 13(1)(d) of Prevention of Corruption Act, 1988. However, it has been stated that on receipt of representation about his acquittal in 10 number of TR cases by the Learned Special Judge, CBI, Bhubaneswar, the matter was taken up with the CBI authorities, who has confirmed that the applicant has been acquitted in all cases but out of ten in four cases appeal has been preferred before the Hon'ble High Court of Orissa, which are subjudice. In the counter, at 7 O.A.No. 260/00055 of 2019 para 3(vii), it has been stated that they have requested the CBI authorities the copies of the judgments and, after collection of the same, the level of acquittal will be ascertained and the disciplinary inquiry will be expedited accordingly. Accordingly, the respondents have prayed for dismissal of this OA. Applicant through rejoinder by placing copies of the orders in the TR cases has prayed for the relief claimed in this OA.
3. We have considered the submissions of the parties and perused the documents placed on record.
4. From the pleadings and averments of the Ld. Counsel for the applicant, it is established that the applicant challenges the disciplinary proceedings initiated against him on two counts on the grounds, viz.(i) after being his acquittal in the criminal case instituted agent him, the initiation of disciplinary proceedings on same set of allegation, documents and witnesses, as per the rules and law, is sustainable; (ii) initiation of disciplinary proceedings vide memorandum dated 01.05.2014 for the alleged incident that took place during 2001 to 2007, as per the law, is illegal and arbitrary. Ld. Counsel for the applicant to justify his stand in support of the ground 8 O.A.No. 260/00055 of 2019 at (i) above, has placed reliance on the decision of the Hon'ble Apex Court in the case Ram Lal (surpa). Upon going through the said decision, we find that the said Ram Lal was appointed as Constable on 15.12.1991 with the Rajasthan Armed Constabulary, 9th Battalion, Jodhpur. First Information Report was registered against him on 02.09.2002 under Sections 420, 467, 468 and 471 of the IPC. Soon thereafter, on 02.04.2003, a chargesheet in a departmental enquiry was also issued. The identical allegation in both the proceedings was that said Ram Lal had altered his date of birth from 21.04.1974 to 21.04.1972 in his 8th standard marks sheet. It was alleged that this was done to project himself as having attained majority at the time of the recruitment. In the criminal case, he was acquitted wherein in departmental proceeding he was removed from service. After being unsuccessful in his attempt to get the punishment imposed in disciplinary proceedings set aside on the face of the acquittal in criminal case on the self same allegation, documents and witnesses before the Hon'ble Division Bench of the High Court of Rajasthan in Special Appeal (Writ) No.484/2011 dated 05.09.2018, he approached the Hon'ble Supreme Court. The Hon'ble 9 O.A.No. 260/00055 of 2019 Supreme Court quashed the order of the Hon'ble High Court of Rajasthan directing that the applicant shall be reinstated with all consequential benefits including seniority, notional promotions, fitment of salary and all other benefits and, that, as far as backwages are concerned, the Hon'ble Apex Court directed payment of 50% of the backwages to Sri Ram Lal the aforesaid direction was issued by the Hon'ble Apex Court by observing as under:
"27. We are additionally satisfied that in the teeth of the finding of the appellate Judge, the disciplinary proceedings and the orders passed thereon cannot be allowed to stand. The charges were not just similar but identical and the evidence, witnesses and circumstances were all the same. This is a case where in exercise of our discretion, we quash the orders of the disciplinary authority and the appellate authority as allowing them to stand will be unjust, unfair and oppressive. This case is very similar to the situation that arose in G.M. Tank (supra)".
5. According to the respondents, the allegation in the criminal case and disciplinary proceedings are not same and similar and operate different field with different objectives and, therefore, judicial interference at this stage is not warranted. Ld. Counsel for the respondents has placed reliance on the decision of the Hon'ble Apex Court in the cast of Ajit Kumar Nag Vs General Manager, IOCL, AIR 2005 SC 4217 (Para 11), which is extracted herein below: 10 O.A.No. 260/00055 of 2019
"As far as acquittal of the appellant by a criminal court is concerned, in our opinion, the said order does not preclude the Corporation from taking an action if it is otherwise permissible. In our judgment, the law is fairly well settled. Acquittal by a criminal court would not debar an employer from exercising power in accordance with Rules and Regulations in force. The two proceedings criminal and departmental are entirely different. They operate in different fields and have different objectives. Whereas the object of criminal trial is to inflict appropriate punishment on offender, the purpose of enquiry proceedings is to deal with the delinquent departmentally and to impose penalty in accordance with service Rules. In a criminal trial, incriminating statement made by the accused in certain circumstances or before certain officers is totally inadmissible in evidence. Such strict rules of evidence and procedure would not apply to departmental proceedings. The degree of proof which is necessary to order a conviction is different from the degree of proof necessary to record the commission of delinquency. The rule relating to appreciation of evidence in the two proceedings is also not similar. In criminal law, burden of proof is on the prosecution and unless the prosecution is able to prove the guilt of the accused 'beyond reasonable doubt', he cannot be convicted by a court of law. In departmental enquiry, on the other hand, penalty can be imposed on the delinquent officer on a finding recorded on the basis of 'preponderance of probability'. Acquittal of the appellant by a Judicial Magistrate, therefore, does not ipso facto absolve him from the liability under the disciplinary jurisdiction of the Corporation. We are, therefore, unable to uphold the contention of the appellant that since he was acquitted by a criminal court, the impugned order dismissing him from service deserves to be quashed and set aside."
6. We have examined the case in hand with reference to the law relied on by the parties concerned. Undisputedly, the applicant stands indicted for the offence committed under Section 409, 428, 11 O.A.No. 260/00055 of 2019 467, 471, 477 (A) of Indian Penal Code and Section 13(2) read with Section 13(1)(c) and 13(1)(d) of Prevention of Corruption Act, 1988 for committing misappropriation by cheating and falsification of forged valuable security as a Branch Postmaster during the period in question. It is noted that though committing offence under Section 409, 428, 467, 471, 477 (A) of Indian Penal Code varied in case to case basis but offence under Section 13(2) read with Section 13(1)(c) and 13(1)(d) of Prevention of Corruption Act, 1988 were same in all the cases. It is not in dispute that in all the 10 (Ten) cases, instituted against the applicant, was acquitted by the Learned CBI Court and, according to the Ld. Counsel for the respondents, in 4 ( Four) cases, appeal has been preferred by the CBI and the same are pending adjudication before Hon'ble High Court of Orissa. The allegation in the departmental proceedings initiated vide charge sheet dated 01.05.2014 is for failure to enter the deposits in BO SB Journal, BO Account book and BO Daily A/c on different dates and did not take the same into BO Account as required under Rule 131 and 134 of Branch Office rules, Sixth Addition, thereby violated Rule 21 of GDS (C&E) Rules. The respondents in their counter have also stated that 12 O.A.No. 260/00055 of 2019 they have requested the CBI to supply copy of the judgment, after receipt of the same, the level of acquittal will be examined with reference to the allegation made in the charge sheet and, accordingly, the disciplinary proceedings will be expedited. Counter was filed on 28.06.2019. But, no light has been thrown about the progress meanwhile, if any, taken place upon receipt of the judgment from CBI.
7. Insofar as the stand of the applicant that charge sheet having been issued belatedly by application of law laid down in the case of N.Radhakishan (supra), wherein it is observed as under:
"It is not possible to lay down any pre-determined principles applicable to all cases and in all situations where there is delay in concluding the disciplinary proceedings. Whether on that ground the disciplinary proceedings are to be terminated each case has to be examined on the facts and circumstances in that case. the essence of the matter is that the court has to take into consideration all relevant factors and to balance and weight them to determine if it is in the interest of clean and honest administration that the disciplinary proceedings should be allowed to terminate after delay particularly when delay is abnormal and there is no explanation for the delay. The delinquent employee has a right that disciplinary proceedings against him are concluded expeditiously and he is not made to undergo mental agony and also monetary loss when these are unnecessarily prolonged without any fault on his part in delaying the proceedings. In considering whether delay has vitiated the disciplinary proceedings the Court has to consider the nature of charge, its complexity and on what 13 O.A.No. 260/00055 of 2019 account the delay has occurred. If the delay is unexplained prejudice to the delinquent employee is writ large on the face of it. It could also be seen as to how much disciplinary authority is serious in pursuing the charges against its employee. It is the basic principle of administrative justice that an officer entrusted with a particular job has to perform his duties honestly, efficiently and in accordance with the rules. If he deviates from this path he is to suffer a penalty prescribed. Normally, disciplinary proceedings should be allowed to take its course as per relevant rules but then delay defeats justice. Delay causes prejudice to the charged officer unless it can be shown that he is to or when there is proper explanation for the delay in conducting the disciplinary proceedings. Ultimately, the court is to balance these two diverse consideration.
8. According to the respondents, the suspected fraud committed by the applicant came to notice during inspection on 11.09.2007 and thereafter preliminary inquiry was held on 29.09.2007. Applicant was placed under off duty on 06.11.2007. CBI case was registered against him in 2009 and, thereafter, departmental charge sheet was issued to him on 01.05.2014. According to respondents, the delay was not intentional or deliberate but for administrative reasons and that since the applicant did not specifically plead as to how he was prejudiced interference in the matter is not warranted.
9. It is noticed that consequent upon the receipt of the charge sheet, applicant submitted representation and when the IO intimated 14 O.A.No. 260/00055 of 2019 him to appear in person, he approached this tribunal in this OA seeking to quash the charge sheet and to direct the respondents to treat his put off duty period as duty with grant of all consequential benefits and by virtue of interim order of this Tribunal, the disciplinary proceedings has been stalled. The outcome of the 4 (four) CBI case before Hon'ble High Court of Orissa is not forthcoming. Meanwhile, applicant must have reached the age of superannuation of 65 years since he was 60 years when the OA was filed on 07.12.2018.
10. In view of the discussions made above, going by the allegations made in the departmental charge sheet and the fact that the final outcome of the CBI case in 4 (Four) TR cases filed and pending before the Hon'ble High Court of Orissa is not known, instead of quashing the departmental charge sheet, the matter is left to the competent authority/respondents to examine the level of acquittal in the CBI Case, as submitted in the counter, and decide further proceeding in pursuance of the charge sheet keeping in mind the decision in the case of Ram Lal (supra). The result of such consideration be intimated to the applicant in a reasoned order within a period of 60 15 O.A.No. 260/00055 of 2019 days from the date of receipt of the copy of this order. Accordingly, the stay order granted by this Tribunal, that is continuing till date, stands vacated.
11. With the aforesaid observation and directions, this OA stand disposed of. No costs.
(Pramod Kumar Das) (Sudhi Ranjan Mishra) Member (Admn.) Member (Judl.) KB/PS