Central Administrative Tribunal - Chandigarh
Jai Bhagwan Chhachia vs Union Of India Through Comptroller & ... on 8 October, 2014
Central Administrative Tribunal
Chandigarh Bench
OA No.1091/CH/2013
Orders pronounced on:8.10.2014
Coram:
Honble Mr. Sanjeev Kaushik, Member (J)
Honble Mrs. Rajwant Sandhu, Member (A)
Jai Bhagwan Chhachia, Senior Accountant, age 58 years Accountant General (A&E) Haryana, Chandigarh resident of 2762, Sector 40, Chandigarh.
-Applicant
(By Advocate Shri D.R. Sharma)
-Versus-
1. Union of India through Comptroller & Auditor General of India, 10 Bahadurshah Zafar Marg, New Delhi.
2. The Principal Accountant General (A&E), Haryana Lekha Bhawan, Plot Nos.4 & 5, Sector 33-B, Chandigarh-1600203.
3. The Senior Deputy Accountant General (Admn), Office of the Accountant General (A&E) Haryana Lekha Bhawan, Plot Nos.4&5, Sector 33-B, Chandigarh-160020.
-Respondents
(By Advocate Shri Brajesh Mittal)
O R D E R
Per Mr. Sanjeev Kaushik, Member (J):
The present Original Application is directed against an order dated 13.04.2011 passed by the Disciplinary Authority inflicting the punishment of dismissal from service upon the applicant, order of the appellate authority rejecting his appeal and the order dated 28.11.2011 of the Revisional Authority rejecting his review petition. The applicant has also sought quashing of order dated 07.04.2010 passed by respondent no.1 ordering holding of de novo enquiry from the stage of appointment of Inquiry Officer and Presenting officer.
2. Brief facts of the case are that the applicant joined service in the respondent-department as an Auditor on 25.07.1979. He was, thereafter, promoted as Accountant in the year 1989. He was on deputation with Haryana State Lotteries Department as Sales Officer from 01.05.1990 to 30.12.1994 and from 26.11.1996 to 04.06.1997. While on deputation, the applicant was served with a charge-sheet dated 22.04.2003 under Rule 14 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 (hereinafter referred to as The Rules), for allegation of misappropriation and embezzlement of Government money to the tune of Rs.44,14,053.36. Inquiry Officer was also appointed to enquire into the charges in the disciplinary proceedings.
3. Simultaneously an FIR no.744 dated 15.11.2003 for offences under sections 420 and 409 IPC was also lodged against the applicant by the Haryana State Lotteries Department. In the disciplinary proceedings, the Inquiry Officer submitted his report on 08.01.2008, exonerating the applicant from the charges, which report was accepted by the Disciplinary Authority on 15.01.2008. Thereafter the Haryana State Lotteries Department moved a Revision Petition under Rule 29 of the Rules to the Revisional Authority. The Revisional Authority, vide order dated 07.04.2010, remitted back the case to the Disciplinary Authority for de novo enquiry from the stage of appointment of Inquiry Officer and Presenting Officer. In furtherance of the above, the Disciplinary Authority, vide its order dated 21.04.2010, revived the earlier charge-sheet and ordered de novo enquiry. The applicant was given an opportunity on 23.04.2010 to submit his defence statement, which the applicant did on 23.05.2010.
4. On 10.06.2010 the Disciplinary Authority appointed the Inquiry Officer, who submitted his report on 03.02.1011, which was also supplied to the applicant on 10.02.2011 asking him to submit his representation, if any, which he did on 25/28.02.2011. Based upon the Inquiry Report and the representation, the Disciplinary Authority in exercise of power under Rule 11 (ix) of the Rules imposed the penalty of dismissal from service upon applicant vide its order dated 13.04.2011. Aggrieved against the above order the applicant filed a statutory appeal on 16.05.2011, which was rejected on 28.11.2011, which too was challenged by the applicant by filing a Revision Petition under Rule 29 of the Rules, which also was rejected vide order dated 12.03.2013. Hence this O.A challenging the validity of the aforesaid orders.
5. Pursuant to the notice, the respondents resisted the claim of the applicant by filing written statement, wherein they have taken a preliminary objection that the applicant has not approached this Tribunal with clean hands as he has concealed the material fact that he had admitted his guilt by voluntarily depositing a sum of Rs.10,22,948/- out of the embezzled amount for which he was charge-sheeted. It is also submitted that while the applicant was on deputation with the Haryana State Lotteries Department, he was served with a charge-sheet and disciplinary proceedings initiated on that basis, in which though he was exonerated by the Disciplinary Authority by dropping the charges but subsequently on a revision petition filed at the instance of the Haryana State Lotteries Department, the Revisional Authority -respondent no.1 in exercise of powers under Rule 29 of the Rules ordered the Disciplinary Authority to start de novo enquiry from the stage of appointment of Inquiry Officer. It is, thereafter, that the Disciplinary Authority provided an opportunity to the applicant and after having a report from the Inquiry Officer held the applicant guilty of the charges and inflicted the punishment of dismissal from service, which was approved by the Disciplinary Authority as well as the Revisional Authority by dismissing the appeal and revision petition preferred by the applicant.
6. It is also submitted that though the applicant has been acquitted in the criminal case No.1197 of 2006 by the Trial Court but it was after giving him the benefit of doubt only. Such an acquittal based on benefit of doubt, would not amount his exoneration in the disciplinary proceedings ipso facto and does not debar the department from initiating departmental proceedings and.
7. No replication has been filed by the applicant to the written statement to rebut the contentions made by the respondents.
8. We have heard Shri D.R. Sharma, learned counsel for the applicant and Shri Barjesh Mittal, learned counsel for the respondents.
9. Shri Sharma, learned counsel for the applicant attacked the impugned orders on four counts, viz., firstly that in exercise of power under Rule 15 (1) of the Rules, the appellate authority or under rule 29 (1)(vi) (c) of the Rules, the Revisional Authority, cannot order de novo enquiry; secondly the Revisional Authority cannot entertain the revision petition after expiry of more than six months from the order of the appellate authority; thirdly the respondents cannot hold the departmental enquiry once the applicant had already been acquitted by the criminal court on the same set of allegations; and fourthly the revision petition at the instance of the Haryana State Lotteries Department cannot be entertained in terms of rule 29 (vi) of the Rules.
10. To elaborate his arguments, learned counsel submitted that once the charges against the applicant had already been dropped by the competent authority by passing an order, the Revisional Authority at the instance of the third party cannot order de novo enquiry. For this, he placed reliance on rule 29 (1)(vi)(c) of the 1965 Rules. To buttress his submission he also placed reliance on the decision of Honble Supreme Court in the case of K.R. Deb v. The Collector of Central Excise, AIR 1971 SC 1447, to argue that only further enquiry is permissible.
11. Learned counsel further submitted that the very basis of initiation of second inquiry is illegal, thus the subsequent actions are also are illegal and as such are liable to be set aside. Then he alleged that even the revision petition at the instance of the Haryana State Lotteries Department is not maintainable in terms of proviso to Rule 29 (1), which provides that the Revisional Authority may at any time, either on his or its own motion or otherwise call for the records of any inquiry and revise any order made under these rules. Since the Haryana State Lotteries Department is nowhere concerned with the disciplinary proceedings, therefore, the orders of the Revisional Authority ordering de no enquiry is also bad in law. He further urged that the order of the Revisional Authority in entertaining the revision petition after six months is also bad in law in terms of the judgment in the case of S.K. Gautam and others v. Union of India & ors. (OA No.239 of 1996) decided by the Lucknow Bench on 16.08.2001 where it has been held that after expiry of six months from the date of the appellate order, no revision petition can be entertained whereas in this case the revision petition has been accepted after the expiry of the prescribed time limit. Lastly, he argued that the action of the respondents in not considering the judgment by the criminal court on the same set of allegation in which the applicant had already been acquitted and going ahead with the departmental proceedings is illegal.
12. Per contra, Shri Mittal, learned counsel appearing for the respondents vehemently opposed the prayer of the applicant firstly on the ground that the validity of the order of the Revisional Authority ordering de novo enquiry cannot he challenged in this OA as the applicant has himself participated in the departmental proceedings which was brought to a logical conclusions. He then submitted that there is no bar under Rule 29 of the Rules to entertain the petition on behalf of the Haryana State Lotteries Department as said department has played the role of informant only and the authority has taken its own decision with due application of mind. He submitted that rule is very clear which gives power to the Revisional Authority to order de novo enquiry after recording reasons. The Revisional Authority after considering the fact that earlier the Inquiry Officer, who submitted his report exonerated the applicant only on the ground that the document had not been proved/produced before him and, thus, his finding was not based on any evidence. The report of the Inquiry Officer was also approved by the Disciplinary Authority but on revision, as it transpired that huge financial loss was suffered by the public exchequer as such the de novo enquiry was necessary for which an order was passed and after conducting a detailed enquiry and admission made by the applicant, the order of dismissal was passed, which does not suffer from any legal infirmity.
13. To buttress his submissions, with regard to initiation of de novo enquiry, learned counsel for respondents also placed reliance on the judgment of the Honble Supreme Court in the case of K.R. Deb (supra) as relied upon by the applicant to the effect that the Disciplinary Authority can order de novo enquiry after recording reasons. He also placed reliance upon the judgment of the jurisdictional High Court in the case of Union of India and others v. Shashi Bhushan and another, 2011 (1) RSJ 506 to prove his point.
14. Lastly learned counsel for respondents submitted that there is no bar for initiation of departmental enquiry after acquittal in a criminal case. In this regard he placed reliance upon the judgment of the Honble Supreme Court in the case of Divisional Controller, KSRTC v. M.G. Vittal Rao, (2012) 1 SCC 442, South Bengal State Transport Corporation v. Swapan Kumar Mitra and others, (2006) 2 SCC 584.
15. While concluding the arguments, the learned counsel for respondents submitted that once there is an admission by the applicant in the shape of deposit of an amount of Rs.10,22,948/-, it does not lie in his mouth to say that the charges levelled against him are fake and cannot be ordered to be looked into by the Revisional Authority in exercise of the power under Rule 29 of the Rules.
16. We have given our thoughtful consideration to the entire matter and have perused the pleadings with the able assistance of the learned counsel for the respective parties.
17. From a conjunctive perusal of the pleadings on record, the following questions of law emerge for our consideration:
i) Whether a de novo enquiry can be initiated/ordered in terms of Rule 15 (1) of the Rules by the Disciplinary Authority or under Rule 29 (1) (vi) (c) of the Rules by the Revisional Authority?
ii) Whether a revision petition under Rule 29 (1) (vi) of the Rules can be entertained at the instance of a third party, in the departmental proceedings but otherwise includes it?
iii) Whether a revision petition can be entertained at any point of time in view of language of the rules?
iv) Whether the punishment imposed under Discipline & Appeal Rules, is to be re-visited, after acquittal in a criminal case, on the same set of charges even of both proceedings have been conducted simultaneously?
18. In so far as question no.1, whether a de novo enquiry can be initiated in terms of Rule 15 (1) of the Rules by the disciplinary authority or under Rule 29 (1) (vi) (c) of the Rules by the Revisional Authority is concerned, it would be appropriate to reproduce both the rules as under :
15. Action on inquiry report (1) The disciplinary authority, if it is not itself the inquiring authority may, for reasons to be recorded by it in writing, remit the case to the inquiring authority for further inquiry and report and the inquiring authority shall thereupon proceed to hold the further inquiry according to the provisions of Rule 14, as far as may be.
Rule 29(1)(vi)(c)
29. Revision (1) Notwithstanding anything contained in these rules-
(i) the President; or
(ii) to (v) xxx
(vi) any other authority specified in this behalf by the President by a general or special order, and within such time as may be prescribed in such general or special order; may at any time, either on his or its own motion or otherwise call for the records of any inquiry and revise any order made under these rules or under the rules repealed by rule 34 from which an appeal is allowed, but from which no appeal has been preferred or from which no appeal is allowed, after consultation with the Commission where such consultation is necessary, and may-
(a) xxxx (b) xxxx (c) remit the case to the authority which made the order to or any other authority directing such authority to make such further enquiry as it may consider proper in the circumstances of the case; or
Perusal of the above extraction makes it clear that ample power has been given to the disciplinary authority and to the Revisional Authority as well to order de novo enquiry after recording a finding that the important evidence either to be relied upon by the Inquiry Officer or by the Disciplinary Authority has been left out to be appreciated and for not concluding the departmental proceedings in a manner emphasized under the Rules. Reliance in this regard is placed on the case of K.R. Deb (supra) as followed in the case of Union of India v. P. Thayagarajan81991 (1) SCC 733. In the latter case it was held that When important evidence, either to be relied upon by the department or by the delinquent official, is shut out, this would not result in any advancement of any justice but on the other hand result in a miscarriage thereof. Therefore, we are of the view that Rule 27(c) enables the Disciplinary Authority to record his findings on the report and to pass an appropriate order including ordering a denovo enquiry in a case of present nature. Thus, facts and circumstances of each case has to be considered to reach to a conclusion as to whether denovo enquiry can be ordered or not. In this case considering the facts of the case and finding that the enquiry officer had failed to take into consideration vital evidence while acquitting the applicant, came to the conclusion that denovo enquiry was warranted and such decision cannot be faulted by this Tribunal as such power is provided in the rules itself to the disciplinary authority as well as Revisional authority. This Tribunal has clinched the issue recently in the case of K.C. Singla Vs. Union of India & Others, O.A.No. 1128-PB-2012 decided on __ September, 2014. The relevant portion of which is reproduced as under :-
14. It can be safely recorded, after a perusal of the above rule formation that if disciplinary authority finds any discrepancy in the report, then after recording reason in writing can order further inquiry. Now it is to be seen, whether it can be got conducted by the same inquiry officer or by a newly appointed officer. Perusal of the Rule 15(1) of the 1965 Rules makes it clear that the Disciplinary Authority, may for reasons, to be recorded in writing, remit the case to the inquiring authority for further inquiry and report and inquiring officer shall thereupon proceed to hold the further inquiry according to the provisions of Rule 14. Rule does not debar the disciplinary authority for ordering a de novo inquiry. What it commands is that the Disciplinary Authority has to record the reason in writing. The expression further enquiry cannot be restricted to mean, to start from the stage the defect was noticed or left by the previous inquiry officer. Expression further enquiry is one amplitude and it includes the same or fresh evidence as well as appreciation of the record. Simply, there is no compulsion to the authority to entrust the inquiry to same inquiry officer who held the inquiry earlier. In the cases of K.R.Dev Vs. CCE, 1971(2) SCC 102 and Union of India Vs. P.Thayagaraian, 1999(1) SCC 733 their Lordships of Honble Supreme Court have recorded in para 12, that the Enquiry Officer can be asked to record further evidence without setting aside the inquiry report that has been submitted by him. The aforesaid para 12 is relevant to the issue and reads thus:-
12. It seems to us that Rule 15, on the fact of it, really provides for one enquiry but it may be possible if in a particular case there has been no proper enquiry because some serious defect has crept into the enquiry or some important witnesses were not available at the time of the enquiry or were not examined for some other reason, the disciplinary authority many ask the enquiry officer to record further evidence. But there is no provision in Rule 15 for completely setting aside previous enquiries on the ground that the report of the enquiring officer or officers does not appeal to the disciplinary authority. The disciplinary authority has enough powers to reconsider the evidence itself and come to its conclusion under Rule 9.
15. Commenting on para 12 of the judgment in K.R.Devs case(supra) their Lordships of Honble Supreme Court in P.Thayagarajans case (supra) has held in para 8 of its judgment as under:-
8. A careful reading of this passage will make it clear that this court notices that if in a particular case where there has been no proper enquiry because of some serious defect having crept into the inquiry or some important witnesses were not available at the time of the inquiry or were not examined, the Disciplinary Authority may ask the Inquiry Officer to record further evidence but that provision would not enable the Disciplinary Authority to set aside the previous enquiries on the ground that the report of the Enquiry Officer does not appeal to the Disciplinary Authority. In the present case the basis upon which the Disciplinary Authority set aside the enquiry is that the procedure adopted by the Enquiry Officer was contrary to the relevant rules and affects the rights of the parties and not that the report does not appeal to him. When important evidence, either to be relied upon by the department or by the delinquent official, is shut out, this would not result in any advancement of any justice but on the other hand result in a miscarriage thereof. Therefore we are of the view that Rule 27(c) enables the Disciplinary Authority to record his findings on the report and to pass an appropriate order including ordering a de novo enquiry in a case of present nature.
16. A perusal of the above passage makes it clear that it is not a rule of the thumb that in no circumstances, come what may, de-novo inquiry cannot be ordered. Facts of each case have to be seen in the light of observation in above quoted law. Our own jurisdictional High Court has considered a similar controversy in the case of Union of India and others Vs. Shashi Bhushan and another , 2011(1) RSJ 506, where Division Bench, after noticing the judgment (relied upon by the applicant herein also) in case of K.R.Dev Vs. CCE, 1971(2) SCC 102 and Union of India Vs. P. Thayagaraian, 1999(1) SCC 733, has come to the conclusion that if the disciplinary authority comes with definite finding that there is procedural lapse in conducting the enquiry, then he can order de novo enquiry under rule 15(1) of the 1965 Rules.
xxxx
20. Perusal of the above extraction makes it clear that a categorical finding has been recorded by the Disciplinary authority, in disagreement note that both the Inquiry Officers have not conducted the enquiry as per the procedure in as much as firstly they dropped the material witness without assigning any reason and secondly by ignoring the report of the hand writing expert finding was recorded. When we consider the charges leveled against the applicant, the same are of serious in nature that is alteration in the bids, after its submission and tampering with entries in the Tender Opening Register was done to give undue advantage to one of the bidder. Considering the seriousness of the charges, we do not find the action on the part of the disciplinary authority in ordering the further enquiry after recording disagreement note by the Disciplinary Authority to be illegal. Therefore, we find no fault with the action of the respondents in ordering further inquiry in the manner it has been done by them.
19. It, thus, becomes clear that there is no bar at all in ordering de-novo enquiry against an employee if there is inherent defect in the enquiry report. In view of this and the above dictum of law, we answer the first poser in the affirmative by holding that under Rule 15 of the Rules, Disciplinary Authority and under rule 29(1)(vi)(c) of the Rules, Revisional Authority can order a de novo enquiry and adoption of that course in the facts and circumstances of this case cannot be faulted with at all.
20. Now dealing with the second poser whether a revision petition under Rule 29 (1) (vi) of the Rules can be entertained at the instance of other party (Haryana State Lotteries Department herein), which is not a party in the departmental proceedings, which is otherwise interested party in this case. .
21. A perusal of Rule 29 (1) (vi) of the Rules, as reproduced in para 18 above, makes it clear that the Revisional Authority is empowered to, either on his own motion or otherwise, call for the records of any enquiry. The word otherwise has to be construed in a wider sense and to our mind, this would cover a interested party to the proceedings too. In this case, Haryana State Lotteries Department, where a fraud has been played by the applicant, while on being deputation to that department, was an interested party. Therefore, this poser is also to be answered in the affirmative.
22. In so far as the third question with regard to limitation is concerned, a perusal of Rule 29 (supra) does not suggest that a time limit has been fixed for initiation or taking cognizance of a revision petition by the Revisional Authority because it starts from may at any time. This may also not be interpreted in a sense that it can be ordered at any time to the disadvantage to a delinquent who in some cases has undergone punishment, otherwise the sword will keep on hanging on head of an employee, whose case becomes final after the order of the disciplinary authority but it also cannot be construed to be initiated within a period of six months as in the case of the appellate authority because it is not the intention of the legislature to fix any time frame for revision. In the present case, no doubt fraud has not been played by the applicant in his own department but he has done this in the borrowing department of Haryana State Lotteries where he was on deputation. The loss is for embezzlement of public money which cannot be taken lightly when there is an admission by the applicant in the shape of depositing part of the embezzled money. The procedure adopted by the IO and by the DA in dropping the charges is highly doubtful because despite there being an admission, they dropped the charges against the applicant. It is not the case of the applicant herein that the Haryana State Lotteries Department was informed about dropping of the charges against the applicant. Being an aggrieved party the Haryana State Lotteries Department moved a revision petition immediately when they came to know about this fact before the Revisional Authority under Rule 29 (1)(vi) of the Rules, which was entertained and the Revisional Authority while accepting their petition after recording their subjective satisfaction ordered de novo enquiry. The petition was filed approximately within a period of two years. An identical plea qua limitation on revision plea, was considered by Honble Delhi High Court in WP ) No. 1543 of 1999 (Bansi Ram Vs. Union of India & Others) decided on 5.12.2011 in which it was held as under:
The time limit of six months is prescribed for the appellate authority when an appeal is not filed and the appellate authority exercises the power of revisional authority under the CCS (CCA) Rules whereas no time limit is provided under the CRPF Rules for the revisional authority to enhance the punishment. The revisional authority of the respondents, admittedly, did not exercise the powers as revisional authority on appeal being not filed by the delinquent under the CCS (CCA) Rules. Appeal had been filed by the petitioner under the CRPF Rules and thereafter, revision had also been filed under the CRPF Rules. In the circumstances, both the provisions of Section 29 in the CRPF Rules, 1955 as well as Section 29 of the CCS(CCA)Rule, 1965 does not provide any limitation for exercising the revisionary powers by the Reviewing Authority nor any time limit for enhancement of punishment. The plea of the petitioner that the enhancement of punishment was barred by limitation, therefore, cannot be accepted and is rejected. (emphasis supplied) Different time frames have been taken by the courts. On the one hand the Lucknow Bench of this Tribunal held that time was 6 months, the High Court of J&K held it to be one year while the Delhi High Court held that there is no time limit. The view taken by the Honble Delhi High Court appears to be more appealing to us and as such we would like to go with the same. The various authorities relied upon by the applicant on the point would not help him at all in view of the specific facts and circumstances of this case. Therefore, taking into account facts of the present case it cannot be said that the Revision Petition has been filed at a belated stage more so when the authority is empowered to condone the delay in filing the Revision Petition. The intention of the rules is to adopt a justice oriented approach and not mere technicality. Therefore, this poser is also answered in the affirmative.
23. Now dealing with the last poser whether the charges are to be set aside on being acquitted in a criminal case on the same set of charges even if the departmental proceedings and criminal proceedings have been conducted simultaneously, let it be stated that it is a well settled proposition of law that the departmental as well as criminal proceedings can go on simultaneously. This issue too has been set at rest by the Honble Apex Court of the country in a number of cases including in Deputy Inspector General v. S. Samuthiram [(2013) 1 SCC 598] and Commissioner of Police, New Delhi & Anr. V. Mehar Singh [(2013) 7 SCC 685]. In this case too the fact remains that the applicant has not shown any rule or regulation applicable to him that once he has been acquitted by a Criminal Court, as a matter of right, he should be reinstated in service, despite all the disciplinary proceedings. In otherwise there is no rule of automatic reinstatement on acquittal by a Criminal Court even though the charges levelled against the delinquent before the Enquiry Officer as well as the Criminal Court are the same. On this issue in para 27, in the case of S. Samuthiram (supra), it was held as under:-
27. We have also come across cases where the service rules provide that on registration of a criminal case, an employee can be kept under suspension and on acquittal by the criminal court, he be reinstated.
24. It has been held that there may be cases where the service rules provide that in spite of domestic enquiry, if the criminal court acquits an employee honourably, he could be reinstated. In other words, the issue whether an employee has to be reinstated in service or not depends upon the question whether the service rules contain any such provision for reinstatement and not as a matter of right. The applicant herein has not been able to show any such rule or regulation which may come to his rescue.
25. Following aforesaid two decisions the Honble Apex Court in the case of State of West Bengal Vs. Sankar Ghosh, in CIVIL APPEAL NO. 10729 OF 2013 decided on 28.11.2013 has further clarified the issue, while examining the decisions of Tribunal as well as High Court, as under :
18. Above rule indicates that even if there is identity of charges levelled against the respondent before the Criminal Court as well as before the Enquiry Officer, an order of discharge or acquittal of a police officer by a Criminal Court shall not be a bar to the award of the departmental punishment. The Tribunal as well as the High Court have not considered the above-mentioned provision and have committed a mistake in holding that since the respondent was acquitted by a Criminal Court of the same charges, reinstatement was automatic. We find it difficult to support the finding recorded by the Tribunal which was confirmed by the High Court. We, therefore, allow the appeal and set aside the order of the Tribunal, which was affirmed by the High Court.
26. As mentioned above, the applicant herein has not been able to lay his hand on any rule or provision which may give any credence to his claim that on acquittal in criminal case, he is automatically entitled to reinstatement in service despite the fact that disciplinary proceedings have attained finality. In this case the applicant was not imposed any penalty on the basis of his conviction in the criminal case. Had he been convicted in a criminal case by lower court and respondents would have proceeded to impose any penalty on the basis of such conviction and if on appeal such conviction is set aside, apparently the very ground for imposing penalty loses its significance and as such it is imperative for authorities to revisit the penalty. In this case the position is otherwise as the competent authority in its wisdom chose to proceed in departmental enquiry, independent of the criminal case, which was permissible as per rules and law and the applicant was ultimately punished. Such penalty was not challenged by applicant thereby he allowed the same to attain finality. Now in criminal case if he has been acquitted subsequently, that will have no effect on the settled departmental case which was totally based on preponderance of evidence whereas in criminal case the element of strict rules of evidence was involved. Coupled with these facts and the law on the subject as discussed above, the fourth poser, has to be answered in negative and is so ordered.
27. The applicant was charge-sheeted under Rule 14 of the Rules for embezzlement of Rs.44,14053.36 and misappropriation of funds by delaying remittance of governmental money, which resulted in huge loss to the Haryana State Lotteries Department where he was on deputation vide charge-sheet dated 22.04.2003. There is an admission of the charges by the applicant in the shape of deposit of Rs.10,22,948/- in the year 2004 before starting of departmental proceedings. A copy of the same has also been annexed with the written statement as Annexure R-7. The charge-sheet was followed by the enquiry report dated 08.01.2008 which was accepted by the then disciplinary authority on 15.01.2008 where the charges levelled against the applicant were dropped with the observation that despite there being an effort by the respondent-department the Haryana State Lotteries Department has not produced the document and thus the delinquent cannot be penalized for the non-production of the document by the Haryana State Lotteries Department for more than 3-1/2 years. On this the enquiry was closed and the charges were dropped. The fact remains to be adjudicated by the IO and by the DA is that there is an admission by the applicant and as per the settled law if there is an admission by the delinquent official then there is no need to conduct any departmental proceedings. Without considering the material evidence and without reflecting the same in the enquiry report and in the order of the DA the proceedings were dropped. The Haryana State Lotteries Department is an aggrieved person in the legal sense because their amount was embezzled/ misappropriated by the applicant while he was on deputation. Thus they cannot be said to be a stranger to the proceedings initiated by the Department and on their instance the proceedings were dropped. Rightly they have moved a revision petition under Rule 29 (1) (vi) of the Rules, which were entertained by the Revisional Authority and reviewed the order of the disciplinary authority dated 15.01.2008 by remanding the matter back to the disciplinary authority to enquire the same afresh.
28. Even the O.A deserves to be dismissed because the applicant has not taken this ground or challenged the de novo enquiry at the relevant time when it was ordered. Rather he participated in the de-novo proceedings and only after being held guilty he chose to approach this Tribunal at this stage, which cannot be allowed. He cannot approbate and reprobate simultaneously.
29. The most startling fact which cannot be ignored is that the applicant has admitted his guilt by deposing part of the amount and this itself was enough to hold him guilty of charges and no further enquiry was required. It is settled law that No enquiry necessary when guilt is admitted. In the case of Central Bank of India vs. Karunamoy Banerjee, AIR 1968 SC 266 the Supreme Court has observed that "the rules of natural justice, as laid down by this Court, will have to be observed, in the conduct of a domestic enquiry against a workman. If the allegations are denied by the workman, it is needless to state that the burden of proving the truth of those allegations will be on the management; and the witnesses called, by the management, must be allowed to be cross-examined, by the workman, and the latter must also be given an opportunity to examine himself and adduce any other evidence that he might choose, in support of his plea. But, if the workman admits his guilt, to insist upon the management to let in evidence about the allegations, will, in our opinion, only be an empty formality". In nutshell, if an employee against whom disciplinary proceedings are instituted, admits his guilt, there is no necessity for the management to hold any enquiry. The Honble Apex Court in the case of Channabasappa Basappa Happali, vs. The State of Mysore, AIR 1972 SC32, has observed that "it was contended on the basis of the ruling reported in R. v. Durham Quarter Sessions; Ex parte Virgo, (1952 (2) QBD 1) that on the facts admitted in the present case, a plea of guilty ought not to be entered upon the record and a plea of not guilty entered instead. Under the English law, a plea of guilty has to be unequivocal and the Court must ask the person and if the plea of guilty is qualified the Court must not enter a plea of guilty but one of not guilty. The Police constable here was not on his trial for a criminal offence. It was a departmental enquiry, on facts of which due notice was given to him. He admitted the facts. In fact his counsel argued before us that he admitted the facts but not his guilt. We do not see any distinction between admission of facts and admission of guilt. When he admitted the facts, he was guilty. The facts speak for themselves. It was a clear case of indiscipline and nothing less". In case a workman admits the charge against him or makes an unconditional and unqualified confession then there is nothing more to be done away of enquiry and it cannot be argued that the procedure of departmental enquiry should have been applied notwithstanding such admission or confession held in J.L Toppo vs. Tata Locomative & Engg. Co. Ltd., 1964 ICR 586 (IC). In the case of P.K Thankachan vs. Thalandu services Co-op Bank, 1994 II LLJ 423, the Honble High Court of Kerala has held that - Evidence is required to prove disputed facts and no admitted facts. Where an admission is made after knowing the charges, no evidence is required to be held. It would be a different matter if the admission of guilt is by an employee who could not understand what the charges were or if he was induced or coerced into admitting his guilt. In the case of Manager Boisahabi tea Estate vs. P.O. Labour Court, 1981 Lab IC 557, the Honble Guahati High Court has held that - a misconduct owned and admitted by the delinquent is antithesis of the violation of principles of natural justice or victimization as understood in industrial relations, as the question of prejudice does not arise under such circumstances.
30. In the light of the above, we are left we no other option but to reject the present OA being devoid of merit. The OA is accordingly dismissed, leaving the parties to bear their own costs.
(SANJEEV KAUSHIK) MEMBER (J) (RAJWANT SANDHU) MEMBER (A) Place : Chandigarh Dated: 08.10.2014 San. ??
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21 OA No.1091/CH/2013