Central Administrative Tribunal - Bangalore
A R Mang vs Deptt Of Posts on 24 July, 2023
1 OA No.326/2023/CAT/BANGALORE BENCH
CENTRAL ADMINISTRATIVE TRIBUNAL
BANGALORE BENCH, BENGALURU
ORIGINAL APPLICATION NO.170/0
NO.170/00326/2023
AND
MISCELLANEOUS APPLICTION NO.241/2023
2 TH DAY OF JULY, 2023
DATED THIS THE 24
HON'BLE MRS. JUSTICE S SUJATHA ...MEMBER(J)
HON'BLE MR.RAKESH KUMAR GUPTA ...MEMBER(A)
Shri
hri A.R.Mang,
Age: 50 years,
S/o Rajappa,
Ex-PA
PA Sankeshwar MDG,
Gokak Postal Dn,
Gokak -591307,
591307,
Residing at:
Birobhamalyernal Road,
Nippani -591237,
-
Chikkodi Taluk. ...Applicant
(By Advocate, Shri P.Kamalesan )
Vs.
1. The Union of India,
Rep. by its Secretary,
Department of Post,
Dak Bhavan, New Delhi - 110 001.
2 OA No.326/2023/CAT/BANGALORE BENCH
2. The Chief Post Master General,
Karnataka Circle,
Bangalore -560001.
3. The Post Master General,
N.K.Region, Dharwad - 580001.
4. The Director of Postal Services,
N.K.Region, Dharwad-580001.
Dharwad
5. The Superintendent of Post Offices,
Gokak Postal Dn.,
Gokak - 591307. ....Respondents
ORDER
Per: Justice S.Sujatha ...........Member(J)
Th This application is filed under Section 19 of the Administrative Tribunals Act, Act, 1985 along with MA No.241/2023 seeking for condonation of delay of 13 years in filing the application by the applicant.. The applicant has sought for th the following ollowing reliefs:
reliefs "(i
(i) Quash office of the Superintendent of Post Office, Gokak Dn, Gokak-591307 Gokak 591307 Memo No.Disc/Major/03/06 No.Disc/Major/03/06-07 dated 25-3-2009 25 2009 vide Annexure Annexure-A3 issued by respondent No.5.3 OA No.326/2023/CAT/BANGALORE BENCH
(ii
(ii) Quash O/O Post Master General, N.K.Region, Dharwad Dharwad-580001 Memo No.NKR/ No.NKR/STa-4/729/09 dated 18 2009 Annexure A4 issued by Respondent No.4. 18-8-2009 (iii
(iii) Quash O/O Chief Post Master General, Karnataka Circle, Bangalore -560001 560001 letter No.VIG/15 No.VIG/15-1/2010 dated 22/26 22/26-4-2010 vide Annexure-A6 A6 issued by Respondent No.2.
(iv Consequently direct the respondents to reinstate the
(iv) applicant in service, with all consequential benefits. (v Grant
(v) nt any other relief as deemed ffit into the facts and circumstances of the case, in the interest of justice and equity."
2. Briefly stated the facts as narrated by the applicant are that he was working as Postal Assistant at Sankeshwar Post Office and compulsorily retired from service from 25.03.2009, as penalty. The applicant was served with a charge memo initiating enquiry under Rule 14 of o CCS (CCA), Rules 1965 vide memo dated 05.12.2007 issued by the Superintendent of Post Offices, Gokak Division, Gokak-591307.
591307. In the inquiry proceedings, the applicant accepted the charge memo. Hence Inquiry Officer submitted a report to the Disciplinary Authority stating that the charges were proved.
Disciplinary The 4 OA No.326/2023/CAT/BANGALORE BENCH Disciplinary Authority furnished a copy of the inquiry report dated 14.07.200 to the applicant vide letter dated 31.07.2008. 14.07.2008 The Disciplinary Authority vide order dated 25.03.2009 imposed the penalty ty of compulsory retirement.
retirement. Being aggrieved, the applicant preferred an appeal before the Appellate Authority, which was rejected vide order dated 18.08.2009. The revision petition submitted against the said order also came to be rejected vide order dated ed 22/26.04.2010. After completion of departmental proceedings i.e., after four years, years on the identical facts a police complaint was filed by the respondents against the applicant. The police of Kulgodu registered a FIR against the applicant and subsequently quently a charge sheet was filed in CC No.278/2014. The applicant was acquitted in the said proceedings in terms of the order dated ted 27.03.2023 passed by the learned Civil Judge and JMFC, Mudalgi in CC No.278/2014. Placing reliance on the judgment of the Hon'ble Apex Court in Captain M. M.Paul Anthony vs. Bharat Gold Mines Limited - Civil Appeal No.1906/1999 dated 30.03.1999 and G.M.Tank vs. State of Gujarat - Civil Appeal No.2582/2006 dated 20.05.2006, the impugned orders are 5 OA No.326/2023/CAT/BANGALORE BENCH challenged in this OA inter-alia inter ia seeking reinstatement of the applicant in service.
3. Learned Counsel Shri P.Kamalesan representing the applicant submitted that the applicant was persuaded to admit the charges during preliminary inquiry with the assurance that his case will be viewed viewed latently. The police compliant filed by the respondents on the very same charges involved in the departmental inquiry has resulted in acquittal of the applicant vide order dated 27.03.2023. The facts of the case and the witnesses in both the departmental proceedings and criminal proceedings being the same, the findings recorded in departmental proceedings deserves to be set aside. Thus the learned counsel argued that the applicant is entitled for reinstatement reinstatement with all consequential benefits owing to his acquittal in criminal proceedings.
4. Learned Counsel further argued that the delay of 13 years caused in filing this application is satisfactorily explained by the applicant. After the rejection of the revision petition filed by the applicant, the respondents have initiated the criminal pro proceedings 6 OA No.326/2023/CAT/BANGALORE BENCH i.e., after four years from the date of passing of the order by the Revisional Authority. The applicant being acquitted in CC No.278/2014 vide order dated 27.03.2023, the cause of action for the applicant has arisen now, in terms of the order in Captain M. Paul Anthony and G.M.Tank, G.M.Tank supra. Hence seeks for condonation of delay of 13 years in filing the application and to allow the OA as prayed.
5. We have given our thoughtful consideration to the arguments advanced by the learned Counsel for the applicant and perused the material on record.
6. Undisputed facts are that the inquiry proceedings under Rule 14 of Rules, 1965 were initiated against the applicant on 05.12.2007. The applicant accepted the charges during preliminary inquiry. Inquiry Inquiry Officer submitted the inquiry report holding that the charges leveled against the applicant were proved since he has accepted the charges. The Disciplinary Authority imposed the penalty of compulsory retirement vide order dated 25.03.2009 against which which the applicant unsuccessfully preferred appeal and revision, the he Appellate Authority's order is dated 18.08.2009 and 7 OA No.326/2023/CAT/BANGALORE BENCH that of the Revisional Authority is dated 22/26.04.2010. CC No.278/2014 was filed by the State of Karnataka through PSI Kulgodu PS before before the learned Civil Judge and JMFC at Mudalagi, as the applicant was charge sheeted by the Kulgodu PS, Kulgodu for the offences punishable under Section 408 and 420 of IPC. Three points were taken for consideration by the learned Civil Judge and J.M.F.C. J viz., "(1) Whether the prosecution proves beyond all reasonable doubt that accused was working at Post office, Yadwad as Sub Sub-Post-Master, during his tenure he has misused Rs.72,115.25 paise stamp amount on 22.12.2006 and on 27.12.2006 he has misused Rs.24,499/- in total he has misused Rs.96,614.25 paise for his personal use thereby committed criminal breach of trust thereby committed an offence punishable U/Sec.408 of I.P.C.
(2) Whether the prosecution proves beyond all reasonable doubt that on the abov above said date, time and place accused was working at Post Office, 8 OA No.326/2023/CAT/BANGALORE BENCH Yadwad as Sub-Post-Master, Master, during his tenure he has misused Rs.72,115.25 paise stamp amount on 22.12.2006 and on 27.12.2006 he has misused Rs.24,499/- in total he has misused Rs.96.614.25 paise for his personal use thereby cheated and dishonestly induced and thereby committed an offence punishable U/Sec.420 of I.P.C.
(3) What Order?"
On analyzing the material evidence on record, the learned Civil Judge and J.M.F.C. J has given a finding regarding Point No.1 & 2 as under:
"39.
39. Further, it is pertinent to note that P.W.2,3 are the pancha witnesses to spot panchanama drawn by I.O., these two witnesses to the prosecution version though identified their signatures on Ex.P-8 Ex.P 8 panchanama they turned hostile to the prosecution version. Hence, the oral testimony of P.W.17 remained uncorroborated. Furth Further, P.W.4, 5 and 6 who alleged to be colleague officers of C.W.1 and are eyewitness to the alleged incident turned hostile to the prosecution version and they did not supported to the prosecution story. Further, though P.W.7 supported to the version of P.W.1 P.W.1 there is no material contradictions and omissions in the oral evidence of P.W.1 and 7. Further, it is 9 OA No.326/2023/CAT/BANGALORE BENCH pertinent to note that nowhere in the examination examination-in-chief of P.W.1 whispered that he has accompanied with C.W.9 at the time of his visit to the Yadwad Yadwad Post Office. Further P.W.8 who worked as B.P.O Yaragudri Post Post-Office also turned hostile to the prosecution version. Further P.W.9 though identified his signature at Ex.P-2 Ex.P 2 panchanama this witness turned hostile and did not supported to the prosec prosecution version. Further P.W.11, 12 also turned hostile to the prosecution version. Except C.W.1, C.W7, C.W.11 and C.W.14 no other independent witnesses are supported to the prosecution version. Further, it is pertinent to note that C.W.1, 7, 11,13 and 14 14 are the officers working at Postal Department except these persons no other independent witnesses are supported to the prosecution version. Hence, in the present case on hand the prosecution has utterly failed to prove the charges leveled against the aaccused persons beyond all reasonable doubt. Hence, for the aforementioned reasons and discussions, I answer point No.1 and 2 in the Negative.10 OA No.326/2023/CAT/BANGALORE BENCH
Accordingly Point No.3 has h been answered thus:
"40. POINT NO.3:: In view of my findings on Point No.1 and 2, I proceed to pass the following:
::O R D E R ::
Acting U/Sec.248(1) of Cr.P.C., Accused is hereby acquitted of the offences punishable U/Sec.408 and 420 of I.P.C.
The Bail bond and surety bond shall stands cancelled after the appeal period is over."
7. In G.M.Tank supra, the appellant therein joined the service in 1953 as an Overseer. The Anti Anti-Corruption Bureau carried out an investigation against the appellant and submitted a report and on the basis of the said report, a charge sheet ddated 20.02.1979 was issued alleging that the appellant therein had illegally accumulated the excess income by way of gratification. A departmental enquiry was ordered pursuant to the explanation submitted by the appellant therein denying the allegation aas well as the charges made in the charge sheet. As per the inquiry report dated 31.02.1980, the appellant therein was found guilty of the 11 OA No.326/2023/CAT/BANGALORE BENCH charges.. The disciplinary authority vide order dated 21.10.1982 passed an order of dismissal from the service as punishment. Against the dismissal order, the appellant therein filed a writ petition before the Hon'ble High Court of Gujarat. The learned Single Judge dismissed the petition and the same was confirmed by the Division Bench. The said decision was challenged in appeal before the Hon'ble Apex Court by special leave. In that context the Hon'ble Apex Court has observed thus:
" ...................................... In thiss case, the departmental proceedings and the criminal case are based on identical and similar set of facts and the charge in a Departmental case against the appellant and the charge before the Criminal Court are one and the same. It is true that the nature of charge in the departmental proceedings and in the criminal case is grave. The nature of the case launched against the appellant on the basis of evidence and material collected against him during enquiry and investigation and as reflected in the charge sheet, factors mentioned are one and the same. In other words, charges, evidence, witnesses and circumstances are one and the same. In the present case, criminal and departmental proceedings have already noticed or granted on the same set of facts namely, raid conducted at the appellant's residence, recovery of articles therefrom. The Investigating Officer, Mr. V.B. Raval and other 12 OA No.326/2023/CAT/BANGALORE BENCH departmental witnesses were the only witnesses examined by the Enquiry Officer who by relying upon their statement came to the conclusion that the charges were established against the appellant. The same witnesses were examined in the criminal case and the criminal court on the examination came to the conclusion that the prosecution has not proved the guilt alleged against the appellant appellant beyond any reasonable doubt and acquitted the appellant by his judicial pronouncement with the finding that the charge has not been proved. It is also to be noticed the judicial pronouncement was made after a regular trial and on hot contest. Under these circumstances, it would be unjust and unfair and rather oppressive to allow the findings recorded in the departmental proceedings to stand.
In our opinion, such facts and evidence in the department as well as criminal proceedings were the ssame ame without there being any iota of difference, the appellant should succeed. The distinction which is usually proved between the departmental and criminal proceedings on the basis of the approach and burden of proof would not be applicable in the instant case. Though finding recorded in the domestic enquiry was found to be valid by the Courts below, when there was an honourable acquittal of the employee during the pendency of the proceedings challenging the dismissal, the same requires to be taken note of and the decision in Paul Anthony's case (emphasis supplied) 13 OA No.326/2023/CAT/BANGALORE BENCH (supra) will apply. We, therefore, hold that the appeal filed by the appellant deserves to be allowed."
allowed."
8. Two factors relevant for application of law enunciated by G.M.Tank are:
(1) Facts acts and evidence in the departmental proceedings as well as criminal proceedings should be the same without there being any iota of difference.
difference.
(2) An honourable acquittal of the employee by the criminal court during the pendency of the proceedings challenging the dismissal.
9. The question that fell for consideration in Captain M.Paul Anthony supra, is whether departmental proceedings and criminal case launched on the basis of the same set of facts can be continued simultaneously simultaneously. The he Hon'ble Apex Court held that the same witnesses were examined in the criminal case who were examined in the departmental proceedings, proceedings, but the Court, on consideration of entire evidence, came to the conclusion that no search was 14 OA No.326/2023/CAT/BANGALORE BENCH conducted nor was any recovery made from the residence of the appellant therein. The whole case of prosecution was thrown out and the appellant therein was was acquitted. In that situation, it is laid down that where the appellant is acquitted by a judicial pronouncement with the finding that the "raid and recovery" at the residence of the appellant (therein) were not proved, it will be unjust and unfair and rather oppressive to allow the findings recorded at the ex-parte parte departmental proceedings to stand.
10. The Hon'ble Apex Court in Maharashtra State Road Transport Corporation vs. Dilip Uttam Jayabhay - Civil Appeal No.7403/2021 dated 03.01.2022 03.01.2022, held that acquittal has no bearing or relevance on the disciplinary proceedings as the standard of proof in both the cases are different and the proceedings operate in different fields and have different objectives. Relevant para is quoted hereunder for ready reference:
"10.4 Even from the judgment and order passed by the criminal court it appears that the criminal court acquitted the respondent based on the hostility of the witnesses; the evidence led by the interested witnesses; lacuna in examination of the investigating 15 OA No.326/2023/CAT/BANGALORE BENCH officer; panch for the spot panchanama of the incident, etc. Therefore, criminal court held that the prosecution has failed to prove the case against the respondent beyond reasonable doubt. On the contrary in the the departmental proceedings the misconduct of driving the vehicle rashly and negligently which caused accident and due to which four persons died has been established and proved. As per the cardinal principle of law an acquittal in a criminal trial has noo bearing or relevance on the disciplinary proceedings as the standard of proof in both the cases are different objectives. Therefore, the Industrial Court has erred in giving much stress on the acquittal of the respondent by the criminal court. Even otherwise otherwise it is required to be noted that the Industrial Court has not interfered with the findings recorded by the disciplinary authority holding charge and misconduct proved in the departmental enquiry, and has interfered with the punishment of dismissal solely on the ground that same is shockingly disproportionate and therefore can be said to be an unfair labour practice as per caluse No.1(g) of Schedule Schedule-IV of the MRTU & PULP Act, 1971."
11. It is well settled that an acquittal in criminal proceedings in which the misconduct of the applicant held to be proved beyond a reasonable doubt does not preclude the disciplinary 16 OA No.326/2023/CAT/BANGALORE BENCH proceedings in which charges of misconduct have to be established on preponderance of probability - (vide Anil Kumar Upadyaya vs. The Director General Ssb - Civil Appeal No.2707/2022 dated 20th April, 2022).
12. Coming to the case on hand, it is crystal clear that P.W.4,5 and 6 who are alleged to be colleagues of C.W.1 and are eyewitnesses of the alleged incident turned hostile. Further, P.W.8, who worked as B.P.O. Yaragudri Post Office also turned hostile. Again P.W.9 though identified his signature at Ex.P Ex.P-2 panchanama turned hostile to the prosecution version. E Except C.W.1, C.W.7, C.W.11 and C.W.14, the officers working at Postal Department, no other independent witnesses have supported to the prosecution version. Hence in such circumstances, the Criminal Court has held that the prosecution has utterly failed to prove the charges leveled against the applicant beyond all reasonable doubt. At any stretch of imagination, this acquittal cannot be considered as honourable acquittal.. As A aforesaid, departmental proceedings having been initiated for misconduct and the applicant having accepted the same in preliminary inquiry, inquiry suffered penalty order of dismissal. The 17 OA No.326/2023/CAT/BANGALORE BENCH same having been upheld by the Appellate Authority and Revisional Authority as far as back in 2009 and 2010 respectively respectively, suddenly uddenly challenging the the said order after about 13 years taking the shelter under the order passed by the Criminal Court in CC No.278/2014 dated 27.03.2023 is wholly untenable and cannot be entertained. The entire gamut of the arguments advanced by the learned Counsel for the applicant revolves around the order of acquittal by the Criminal Court in the year 2023. No sufficient cause/satisfactory explanation is offered for not challenging the orders passed by the authorities in the year 2009/2010 except relying on the acquittal acquitt order.
13. As discussed in the preceding paragraphs, in our considered opinion the said acquittal not being honourable acquittal, the same would not come within the parameters laid down by the Hon'ble Apex Court to set aside the dismissal order at tthis length of time. Inordinate delay in filing the application cannot be condoned based on the order passed by the Criminal Court, where most of the witnesses had turned hostile. No occasion has arisen for adjudging the matter on merits considering the evidence 18 OA No.326/2023/CAT/BANGALORE BENCH adduced by the parties/witnesses before the Criminal Court. The applicant was acquitted since the prosecution has failed to prove the charges beyond reasonable doubt.
doubt. Thus we are not inclined to entertain the application by condoning the inord inordinate delay of 13 years. As discussed above, even on merits we do not find a good ground to entertain the OA.
14. In the result, both MA and the OA are dismissed. No order as to costs.
(RAKESH KUMAR GUPTA) (JUSTICE S.SUJATHA)
MEMBER(A) MEMBER(J)
sd.
19 OA No.326/2023/CAT/BANGALORE BENCH