Gauhati High Court
Shafiqul Haque Mazumder vs Union Of India (Uoi) And Ors. on 3 November, 2006
Equivalent citations: (2007)1GLR116, 2006 LAB. I. C. 4347, (2007) 49 ALLINDCAS 750 (GAU), (2007) 1 GAU LR 116, (2006) 4 GAU LT 614, (2007) 49 ALLINDCAS 750
Author: U.B. Saha
Bench: D. Biswas, U.B. Saha
JUDGMENT
U.B. Saha, J
1. The petitioner, in the present writ petition, under Article 226 of the Constitution, has assailed the order dated 5.8.2003, passed by the Central Administrative Tribunal, Guwahati Bench (in short, hereinafter referred to as Tribunal) in Original Application No. 326 of 2002, by which, the order dismissing the petitioner from service, dated 30.5.1997, passed by the Disciplinary Authority, the respondent No. 3 herein, was upheld.
2. We have heard Mr. N. Dhar, learned Counsel for the petitioner and Mr. C. Barua, learned Central Govt. counsel for the respondents.
3. The facts of the case, in a nutshell, are that the petitioner was initially appointed in the Postal Department as Postal Clerk in the year 1986. Subsequent thereto, he was promoted to the post of Upper Division Clerk ('UDC') after qualifying in the Departmental examinations and on the basis of his performance, and he was posted in the Saving Bank Control Organisation ('SBCO') of the Postal Department in different Head Post Offices of various Divisions of the Assam Postal Circle. Lastly, he was posted in the Nagaon Head Post Office at Nagaon as UDC in its Saving Bank Control Organisation (for short hereinafter referred to as 'SBCO') with effect from 30.4.1989. While he was working in the said capacity of UDC in the SBCO, Nagaon Head Post Office, he was entrusted the works of general checks of vouchers and verification of the binders/ledger balances and agreements, etc., on receipt of the money by the post office in course of transactions in its savings bank sides. As it was found by the authority that the petitioner failed to discharge his duties and was negligent to the works entrusted to him and after taking into consideration of all the facts, he was suspended on 17.7.1989 under the provisions of Central Civil Services (Classification, Control and Appeal) Rules, 1965 (in short, 'CCS & CCA Rules'). First Information Report was also lodged by the Superintendent of Post Office, Nagaon Division, Nagaon on 25.7.1989, the respondent No. 4 herein to the Nagaon Police Station implicating the petitioner as accused for alleged misappropriation of the Govt. money as well as for other penal offences. A police case No. 428/89 was registered under Sections 467/468/469/471/477(A)/420/409 IPC and the police charge sheeted the petitioner as an accused under Sections 468/477(A)/420 IPC. The Trial Court found that the prosecution failed to prove the ingredients under Section 477(A) IPC and acquitted the accused-petitioner from the other charges levelled against him. The respondent No. 4, the Superintendent of Post Offices, Nagaon Division, vide Memo No. F. 4-2(0/89-90 proposed to hold an enquiry against the petitioner under Rule 14 of the CCS & CCA Rules, 1965 with an allegation that he had misappropriated an amount of Rs. 1,10,000.00 approximately. Four specific charges were framed against him, vide Memorandum dated 1.2.1991 (Annexure 3 to the writ petition). For proper appreciation, they are quoted below:
Annexure 1 Statement Of Article Of Charge Framed Against Shri S.H. Mazumder, UDC, SBCO HO Now Under Suspension.
Article-1 That the said Shri S.H. Mazumder while function as UDC, SBCO Nowgong HO during the period from 30.4.1985 to 17.7.1989 was entrusted to do general check, of vouchers and verification of binder balances/agreement and while doing so appeared to have made fictitious adjustment in ledger agreement of Nowgong HO binder No. 25 for the period from 1.10.1988 to 31.3.1989 and binder No. 27 for the period from 1.4.1987 to 30.9.1987 and 1.10.1988 to 31.3.1989 and involving a loss of Rs. 60,000 (sixty thousand) plus interest there on by way of excess withdrawal, i.e., Rs. 20,000 (twenty thousand) in SB a/c No. 122230 in the joint names of above said Shri S.H. Mazumder UDC SBCO and his wife Mrs. Sazma Begum, Rs. 40,000 (forty thousand) in SB/a/c No. 122647 in the name of B.M. Arshad Hashan Mazumder S/o above said Shri S.H. Mazumder (Minor a/c) and operated by Shri S.H. Mazumdar with the intention to defraud the Deptt. appeared to have inflated Rs. 60,000 (Sixty thousand) in ledger balance in the ledger against actual deposits of Rs. 1,000 dated 9.11.1988 in SB a/c No. 122230 dated 9.11.1988 and Rs. 1,000 (one thousand) dated 29.9.1987 and Rs. 1,000 dated 9.11.83 in SB a/c No. 122647 adding Rs. 20,000 (twenty thousand) in each occasion and thereby violated the Rule 14 of Postal Manual of SB control pairing and internal check organisation (3rd edition) and Rule 3(1) of CCS (Conduct) Rules 1964.
Article II That during the aforesaid period and while functioning in the aforesaid office, the said Shri S.H. Mazumder made the agreement of binder No. 43 of Nowgong HO during the period from 1.4.1985 to 30.9.1985 and 1.10.1985 to 31.3.1986 in which Shri Mazumder appeared to have fictitiously agreed with a difference of Rs. 20,000 (twenty thousand ) which was withdrawn through Nowgong HO SB a/c No. 121485 in the name of Sunny (minor a/c) operated through father Shri S.H. Mazumder UDC, SBCO and, thus, violated the Rule 14 of Postal Manual of SB control pairing and Internal Check organization (3rd edition) and Rule 3(1) of CCS (Conduct) Rules, 1964.
Article III That during the aforesaid period and while functioning in the aforesaid office of the said Shri S.H. Mazumder made fraudulent withdral of Rs. 60,000 (Sixty thousand) plus interest in respect of the following TD accounts by inflating the figures against the actual deposits in ledger:
1. 5 yrs. TD a/c No. 1837 in the name of Moon Mazumder (minor) through father Shri Shafiqul Haque Mazumder Rs. 20,000 (twenty thousand) against actual deposit of Rs. 1,000 (one thousand) on 24.6.1987.
2. 5 yrs. T.D. a/c No. 1761 in the name of Moon (minor) through father Shafiqul Haque Mazumder Rs. 10,000 (ten thousand) against actual deposits of Rs. 1,000 (one thousand) on 30.12.1985.
3. 5 yrs. TD a/c No. 1760 in the name of Sunny (minor) though father Shri Shafiqul Haque Mazumder Rs. 10,000 (ten thousand) against actual deposit of Rs. 1,000 (one thousand) on 30.12.1985.
4. 5 yrs. T.D. a/c No. 1838 in the name of Sunny (minor) through father Shri Shafiqul Haque Mazumder Rs. 20,000 (twenty thousand) against deposit of Rs. 1,000 (one thousand) on 24.6.87. Shri Shafiqul Haque Mazumder as UDC, SBCO Nowgong.
HO appeared to have covered the above fraudulent withdrawals by making fictitious agreement.
Thus, Shri Shafiqul Haque Mazumder has violated Rule 38 of Postal manual of SB Control, pairing and Internal Check Organisation and thereby violated Rule 3(1) of CCS (Conduct) Rules, 1964.
Article IV That during the aforesaid period and while functioning in the aforesaid office, the said Shri Shafiqul Haque Mazumder, UDC (SBCO) made the agreement of binder No. 43 of Nowgong HO for the period from 1.10.1985 to 31.3.1986 and 1.4.1986 to 30.9.1986 in which Shri Mazumder appeared to have fictitiously agreed with a difference of Rs. 20,000 (twenty thousand) only which was withdrawn by him through Nowgong HO SB a/c No. 121417 standing opened in his name (Shri S.H. Mazumder) and thus he appeared to have violated Rule 14 of Postal Manual of SB control pairing and Internal Check Organization (3rd edition) and Rule 3(1) of CCS (Conduct) Rules 1964.
Annexure II State of imputation of misconduct or misbehaviors in support of the articles of charge framed against Shri S.H. Mazumder, UDC, SBCO (now under suspension).
4. The petitioner submitted his statements of defence on 22.2.1991 denying the charges levelled against him and he stated that since he was not provided with the subsistence allowance, as prescribed by law, he failed to defend his case properly. It was further submission of the petitioner that due to non-payment of the subsistence allowance and his illness, he could not attend enquiry in question. As a result, the Inquiry Officer completed the proceeding ex parte and submitted his report on 23.11.1992 to the Director of Postal Services, Assam Circle, the respondent No. 3 herein, holding the petitioner guilty of the charges. But the respondent No. 3 did not accept the report of the Inquiry Officer on the ground of procedural lapses and vide order dated 24.2.1993 directed for de novo enquiry. Accordingly, the Inquiry Officer as well as presenting officer was again appointed and the petitioner was ordered to be present in the enquiry. The petitioner attended the enquiry. The Inquiry Officer after following all the procedures completed the enquiry entrusted to him and submitted his report dated 26.9.1996 to the Disciplinary Authority on 10.10.1996. The Disciplinary Authority furnished a copy of the enquiry report to the petitioner holding him guilty and he was also asked to submit his representation. Accordingly, the petitioner submitted his-representation in pursuance to the communication dated 11.12.1996 to the Director of Postal Services. The Disciplinary Authority after consideration of the enquiry report as well as representation of the petitioner found that the article of charges I, II and III were proved and the petitioner was guilty of the aforesaid charges except charge No. 4. Thereafter the Disciplinary Authority imposed upon the petitioner the punishment of dismissal from service vide order dated 30.5.1997.
5. Against the said order of dismissal, the petitioner thereafter preferred an appeal before the appellate authority, which was rejected on 12.6.2006. After dismissal of the appeal, the petitioner filed a writ petition being No. WP(C)5792 of 1999 and this Court disposed of the petition vide order dated 12.4.2002 with an observation that the writ petition was not maintainable, but the petitioner was given liberty to approach the Tribunal. Accordingly, the petitioner filed an Application No. 326 of 2002 against the order of dismissal on the ground of discrimination and arbitrariness. The respondents submitted their written statements denying and disputing the allegations of the petitioner before the Tribunal. After considering the rival contentions of the parties, the Tribunal passed the impugned order dismissing the application of the petitioner. Hence, the petitioner has preferred the present writ petition being aggrieved by the order of the Tribunal.
6. The respondents have filed their affidavit in opposition denying all allegations made by the petitioner in the instant writ petition.
7. The question involved for consideration in this case is whether the delinquent employee-petitioner has the right to be set free from the charges levelled against him in a disciplinary proceeding automatically due to acquittal in a criminal case and if so, whether the order of the Tribunal is liable to be set aside, and consequent thereto, the order of dismissal is liable to be quashed?
8. The learned Counsel for the petitioner submits before this Court that the order impugned passed by the Tribunal is bad in law for non-appreciation of facts involved in the case as well as for misinterpretation of the decisions of the Hon'ble Supreme Court in Rupeswar Dutta v. OIL, Duliajan and Ors. reported in 1996 (II) GLT 109 and in Captain M. Paul Authony v. Bharat Gold Mines Ltd. and Anr. . The learned Counsel for the petitioner further submits that the Tribunal has failed to consider the aspect relating to proportionality of the punishment imposed upon the writ petitioner. The learned Counsel also placed reliance on the judgments of this Court as well as the Apex Court in the case of Chhotelal v. Union of India and Ors. reported in (1989) 1 GLR 307, State of Maharasthra v. Chandravan , Sri Bimalendur Bhagavati v. AGCC and Ors. reported in 1995 (11) GLT 378, Fakirbhai Fuibhai Solanki v. Presiding Officer and Ors. , Depot Manager, A.P., State Road Transport Corporation v. Md. Yusuf Mia , Ghanshyam Das Shrivastava v. State of Madhya Pradesh .
9. Mr. C. Barua, the learned Central Govt. counsel, on the other hand, submits that there is no wrong in the order of the Tribunal. When the charges levelled against the petitioner were proved, the court cannot look into the nature of punishment unless it shocks the mind of the court. Learned Central Govt. counsel further submits that the petitioner confessed his guilt for dereliction of duty in the work of general checks of vouchers and verification of the binders/ledger balances and agreements etc. on receipt of the money by the post office in course of transactions in its savings bank sides. The learned Central Govt. counsel also denied the allegation of the petitioner that he was threatened of being handed over to the police on his refusal to sign his confession of guilt. In support of his contention, he referred to paragraph-2 of the affidavit in opposition filed by the respondents. The learned Central Govt. counsel for the respondents further submits that if the petitioner is not dismissed from service for his official misconduct, then it will send a wrong message to other employees resulting indiscipline amongst the staffs. He also submits there was nothing before the Tribunal for interference with the order of the Disciplinary Authority as well as the Appellate Authority as there was no procedural defect in the proceedings.
10. We have given our anxious consideration to the points involved in the matter. There is a difference between disciplinary proceedings and the criminal proceedings. In a disciplinary proceeding, the Disciplinary Authority considers whether the delinquent employee was negligent to his official duty or not and in a criminal proceeding, the court decides whether the accused committed the penal offence or not. It is well settled now that both the criminal case and the disciplinary proceedings can run simultaneously. In the instant case, the learned Counsel for the petitioner tried to make out a case that the petitioner being acquitted from the criminal case, he is entitled to be set free of the charges levelled against him in the disciplinary proceedings and, thus, disciplinary proceeding is liable to be quashed, consequent thereto the order of dismissal is also liable to be set aside. We have considered the matter and are unable to accept the submission of the learned Counsel for the petitioner as there is difference between disciplinary proceedings and the criminal cases as stated hereinabove. A criminal case and a disciplinary proceeding cannot be put in a knot when the charges framed against the petitioner in two different proceedings are totally different in nature and two different areas also-one is for the purpose of imposing punishment for committing penal offences under the Penal Code and the other is for dereliction of duty as entrusted to an employee/ officer like the present delinquent, i.e., conduct unwanted. Acquittal in a criminal case cannot be a ground to set at free the petitioner from the charges levelled against him in the disciplinary proceedings. The citations referred to by the learned Counsel of the petitioner are distinguishable. It is settled law that a case has to be considered on the basis of facts of its own. One additional fact in a case can change the entire situation. In the case in hand, there are some facts, which are not similar to the facts of the cases relied on by the learned Counsel of the petitioner.
11. As regards non-payment of subsistence allowance, we find from the record that an order for subsistence allowance was issued, but the subsistence allowance could not be disbursed as the petitioner did not come forward. The petitioner participated in the disciplinary proceedings, which shows that non-payment of subsistence allowance did not prejudice the case of the petitioner in any way. Hence, the submission of the learned Counsel for the petitioner fails. We are in agreement with the submission of the learned Central Govt. counsel. So far the discipline in the public administration is concerned, discipline is the sine qua non for a public officer. The Tribunal rightly did not interfere with the orders of the Disciplinary Authority as well as Appellate Authority as there was no procedural defect in the proceedings. We find nothing to interfere with the order of the Tribunal. Hence, the writ petition stands dismissed. There shall be no order as to costs.