Central Administrative Tribunal - Hyderabad
Shri M. Nagaraju vs State Of Gujarat And Another Reported In ... on 11 February, 2009
IN THE CENTRAL ADMINISTRATIVE TRIBUNAL HYDERABAD BENCH AT HYDERABAD O.A No. 343 OF 2006 DATE OF ORDER: THE 11TH FEBRUARY, 2009 Between:
Shri M. Nagaraju S/o M. Subba Raju Block No. 41, Door No. 42-
41-10/1, Azit Singh Nagar
Vijayawada. ... Applicant
And
1. Additional General Manager
South Central Railway
Rail Nilayam, Secunderabad.
2. FA & CAO Officer/ WST
South Central Railway
Secunderabad.
3. Senior Divisional Finance
Manager, South Central
Railway, Vijayawada. ... Respondents
Counsel for Applicants : Mr. K.S. Murthy, Advocate
Counsel for Respondents : Mr. N.R. Devaraj , SC for Railways
Coram :
The Hon'ble Mr. Justice P. Lakshmana Reddy, Vice Chairman
The Hon'ble Mr. R. Santhanam, Member (Admn.)
(Order per Hon'ble Mr. Justice P. Lakshmana Reddy, VC)
This application is filed challenging the punishment of compulsory retirement from service imposed in a disciplinary proceeding.
2. The relevant facts in brief are as follows:
The applicant is a railway servant. While he was working as cashier in charge of pay unit for disbursement of salaries in the South Central Railway, on 13.4.1999, he received cash from the bank for the purpose of disbursement of salary on the next date. The said cash was deposited in the strong room putting it in the trunk. On the next day morning the applicant opened the trunk and found shortage of Rs.5,99,999/- from the cash of Rs.7,61,995/- though the seal and lock put on the trunk was in tact. The applicant reported the matter to his higher authority. The respondent administration reported the matter to the police and the police registered the case against the applicant for an offence punishable under Section 380 and 409 IPC. The police after investigation filed charge sheet against the applicant before the Criminal Court. While the criminal case was pending, the respondents department simultaneously initiated departmental proceedings and served charge memo dated 3.3.2000 on the applicant with the following article of charge:
Article-1 That the said Sri M. Naga Raju while functioning as Cashier in charge of Pay Unit No.6 for disbursement of salaries under the control of DC (P)/ BZA during the month of April, 99, committed serious misconduct in that while working as Cashier he was entrusted the Government cash of Rs.7,61,995/- on 13.04.99 for disbursement of salaries of Engineering staff commencing from 14.04.99 and whereas on 14.04.99 when a check was conducted by ADAO/1/BZA Sri M. Naga Raju, has produced an amount of Rs.1,61,996/- only as against Rs.7,61,995/- resulting in shortage of Rs.5,99,999/- for which he is solely responsible.
Thus he has misappropriated the Government cash of Rs.5,99,999/- with an intention to gain pecuniary advantage to himself and caused loss to the Railway Administration. He thus exhibited lack of integrity and failed to maintain absolute devotion to duty and thus acted in a manner unbecoming of a Railway Servant contravening Rule 3 (1) (i), (ii) and (iii) of the Railway Service Conduct Rules of 1966 as detailed in the statement of imputations. The inquiry officer found the applicant guilty of the charge framed against him and submitted his report to the disciplinary authority and the disciplinary authority in turn furnished a copy of the letter dated 19.5.2001 inviting his comments vide his letter dated 18.5.2001. The applicant submitted his representation dated 28.5.2001 against the inquiry officer's report. While the departmental inquiry was in progress, the applicant approached this Tribunal by way of OA 1054/ 2000 seeking a direction to stay the departmental proceedings against the applicant on the ground that the criminal case registered against him in respect of the same incident is pending investigation by the police. This Tribunal disposed of the OA on 1.8.2000 permitting the respondents to proceed with the departmental inquiry, but however, directed the disciplinary authority not to pronounce his orders till the criminal case filed against the applicant is finally decided.
3. Thereafter, on 4.3.2002, the police after investigation filed charge sheet before the I Additional Chief Metropolitan Magistrate at Vijayawada alleging that the applicant who was entrusted with the cheque on 13.4.99 for Rs.7,50,000/- for disbursement, as per the orders of the Accounts Officer, encashed the cheque and misappropriated the same and thus committed an offence punishable under Section 409 IPC. The learned Additional Chief Metropolitan Magistrate took the case on file as CC 217/ 2002 against the applicant and conducted trial in which , ten witnesses were examined and 11 documents were filed on behalf of the prosecution and found the applicant not guilty of the charge framed against him and acquitted the applicant by his judgement dated 8.7.2005.
4. Thereafter on 27.9.2005, the disciplinary authority (R-3) passed final orders (Annexure-II) in the disciplinary proceedings accepting the findings of the inquiry officer who found the applicant guilty of the charge and imposed punishment of removal against the applicant. Aggrieved by the said orders, the applicant preferred an appeal (Annexure-III) on 21.10.2005 before the appellate authority (R-2) and R-2 disposed of the appeal on 8.12.2005 (Annexure-IV) confirming the findings of the inquiry officer and the disciplinary authority on the charge framed against the applicant, but modified the punishment of removal from service to one of compulsory retirement. Aggrieved by the same, the applicant preferred a revision (Annexure-V) on 18.1.2006 to the Additional General Manager (R-1). The revisional authority confirmed the findings of R-2 and dismissed the revision by his orders (Annexure-VI) dated 7.3.2006.
5. Aggrieved by the orders passed by the respondents 1 to 3, the applicant filed the present OA contending that as the Criminal Court after considering the merits of the case, regarding the allegation of misappropriation made against the applicant, found him not guilty of the charge framed against him observing that the prosecution miserably failed to establish the guilt of the applicant and the applicant is made a scapegoat and victimised for one reason or the other. The applicant pleaded that the respondents grossly erred in finding the applicant guilty of the charge of misappropriation against the applicant in the departmental proceedings and that the respondents are not entitled to disagree with the findings of the competent Criminal Court which has honourably acquitted the applicant in respect of the charge of misappropriation and hence, the impugned orders passed by R-1 to R-3 are not sustainable in law and are liable to be set aside.
6. The respondents contested the application and filed reply statement as follows:
The applicant Sri M. Naga Raju while functioning as Cashier in charge of Pay Unit No.6 for disbursement of salaries under the control of Divisional Cashier (Pay), Vijayawada, had drawn an amount of Rs. 7,50,000/- on 13.04.1999 vide cheque number 580762 dated 13.4.1999 from State Bank of India Main Branch, Vijayawada-1 in connection with disbursement of salaries to Engineering staff and accounted for in the cash book having received the cash. On the same day evening after disbursing the day's payments, he is said to have kept the remaining balance and the previous balance amount which together amounting to Rs.7,61,995/- in the cash box. Thus, the cash balance as per cash book on 13.04.1999 should be Rs.7,61,995/-. Sri Nagaraju supposedly sealed the cash book and deposited the same in the strong room. On 14.04.1999 he opened the pay office strong room at about 07.25 hrs. and took his cash box. After drawing the cash he reported that 60 bundles of cash of Rs.100 x 100 each amounting to Rs.6 lakhs were missing in his cash box. When a check was conducted by ADAO/I/ VIJAYAWADA physical cash of Rs.1,61,996/- was only available in the cash box of Sri M. Nagaraju as against Rs.7,61,995/- resulting in a shortage of Rs.5,99,999/-.
The matter was reported to the Station House Officer, Satyanarayanapuram, Vijayawada for investigation. The local police registered a case against Sri Nagaraju vide crime No.140/ 99 dated 14.04.1999 under Section 409 and 380 IPC and filed a charge sheet before Hon'ble III MM Court, Vijayawada later upgraded as I Addl. Chief Metropolitan Magistrate Court.
Besides the above the cashier Sri Nagaraju was placed under suspension w.e.f. 14.04.1999 and sequel to that SF5 dated 03.03.2000 was served on him and later departmental inquiry was ordered. When the departmental inquiry was in progress Sri Nagaraju filed a petition before Hon'ble CAT/ HYB for stoppage of inquiry and in turn Hon'ble Tribunal gave a direction that the enquiry proceedings may be continued till the stage of report and the disciplinary authority shall not pronounce his order till the criminal case against Sri Nagaraju is finally decided. Accordingly the enquiry report was finalised but the order of the DA was reserved till finalisation of the crime case.
It is stated that the judgement in the criminal case held that Sri Nagaraju, Cashier was not found guilty of the offence under Section 409 IPC and therefore acquitted. However, in the departmental case, basing on the Inquiry Officer's findings and on accepting the same the DA has awarded the punishment of removal and accordingly Sri Nagaraju was REMVOED FROM SERVICE W.E.F. 01.10.2005 treating the period of suspension as suspension only concluding that Sri Nagaraju was responsible for the shortage of Government cash to the tune of Rs.5.99 lakh. Against the DA's order the charged employee preferred an appeal to the Appellate Authority i.e. FA & CAO/ G/SC. The appellate authority though agreed with the DA's conclusion, while disposing of the appeal of Mr. Nagaraju, modified the punishment as compulsory retirement. The revising authority had upheld the appellate authority's decision of compulsory retirement through a speaking order while disposing of the petition of Mr. Nagaraju Cashier. It is further pleaded that the standard of proof required in the departmental proceedings is only preponderance of probability and not proof beyond reasonable doubt as required in criminal case. The dismissal of the criminal case was on technical grounds like delay in inspection of scene of occurrence, failure to prove, how the money was spent, delay in arrest of the applicant, lack of proof in compliance with the Evidence Act, etc. The lapse of the applicant in properly securing Govt. cash has not at all been discussed in the criminal case and that the same was discussed in the departmental proceedings and found that the applicant is responsible for the missing of cash of Rs.5,99,999/- and that the applicant did not follow the rules and regulations regarding the manner in which the Govt. cash is required to be secured.
7. The applicant filed rejoinder stating that the whole case of the administration is that there is a lapse and the lapse is that the cash is not kept in a safe and cash box is unattended in the strong room. When the applicant was not supplied with a safe, the question of keeping cash in the safe does not arise and further, the charge framed against him is not that of any procedural lapses and on the other hand, it is that of misappropriation in respect of which the Criminal Court gave a categorical finding that the applicant is not guilty of misappropriation.
8. The points that arise for consideration in this application are:
(i) Whether the respondents are entitled to hold that the applicant is guilty of misappropriation of Rs.5,99,999/- in spite of Criminal Court finding the applicant not guilty of the charge of misappropriation?
(ii) Whether the impugned orders are sustainable in law?
(iii) Whether the respondents are entitled to proceed against the applicant for the lapses if any on the part of the applicant which resulted in loss of Rs.5,99,999/- to the Railways.
(iv) To what result?
9. Point No. (i):
The law is now well settled that the department is not entitled to initiate disciplinary proceedings on an identical and similar set of facts in respect of which Criminal Court gave a finding of acquittal of the charge on merits in GM Tank Vs. State of Gujarat and another reported in 2006 (4) SCJ 1 wherein the Hon'ble Apex Court held that if the departmental proceedings and criminal proceedings are based on identical and similar set of facts, and the charge in the departmental case and the charge before the Criminal Court are one and the same and where there is an acquittal of the employee, the punishment imposed in departmental proceedings does not stand. In that case, the departmental proceedings had already concluded and punishment was imposed and the said punishment was confirmed by the Single Bench during the pendency of the criminal case in respect of the same charge. The appeal filed before Division Bench was dismissed. The charged employee therein preferred an appeal before the Hon'ble Apex Court challenging the judgement of Division Bench of the High Court. During the pendency of Letter Patent Appeal (LPA) before the Division Bench, the Criminal Court acquitted the applicant and the said acquittal though brought to the notice of the Hon'ble High Court, the same was not taken into consideration.
10. The Hon'ble Apex Court found fault with the High Court and held that the High Court ought to have taken into consideration the acquittal of the charged employee by the High Court and ought to have set aside the punishment of removal as the charged employee was acquitted on merits in respect of the same charge and on the same set of facts. Here in the instant case, as seen from the charge extracted supra, the charge is only the charge of misappropriation. There is no charge regarding the alleged lapses on the part of the applicant in securing the cash. There is also no allegation of violation of any guidelines or rules relating to the manner in which the Govt. cash is to be secured. As seen from the judgement of Criminal Court filed as Annexure-VIII 8.7.2005, the learned I Addl. Chief Metropolitan Magistrate elaborately discussed the evidence of PWs 1 to 10 and gave categorical decision that there is no evidence to show that anybody other than the applicant had access to the strong room where the cash boxes were deposited and that the prosecution miserably failed to establish guilt of the accused and the applicant is made scapegoat and victimized. The learned Magistrate further observed that it is purely a case of theft and not a case of misappropriation by the applicant. Thus, it is clear that the Criminal Court acquitted the applicant of the charge of misappropriation not on technical ground but on merits. When once the charged employee is acquitted by a competent Criminal Court on merits and not for technical reasons like, want of sanction or limitation, etc., the department is not entitled to proceed against the charged employee by way of disciplinary proceedings in respect of the same charge and on the same set of facts. In fact, the Railway Board has also issued circulars to that effect. As the article of charge dated 3.3.2000 contains only the charge of misappropriation and the police also filed charge sheet alleging misappropriation, and as the competent Criminal Court after due trial found the applicant not guilty of the said charge, after going into the merits of the case, it is not open for the respondents to hold that the charge of misappropriation is proved. In our considered view, the respondents are not entitled to punish the applicant on the charge of misappropriation in view of the honourable acquittal by the Criminal Court in respect of the same charge. Thus, this point is found in favour of the applicant and against the respondents.
11. Point No. (ii):
In view of the findings on point No. (i), the impugned orders relating to the finding on the charge of misappropriation and the resultant punishment are liable to be set aside. Thus, this point is also found in favour of the applicant.
12. Point No. (iii):
The learned counsel for the respondents submitted that though the charge contains only the allegation of misappropriation, it is mentioned in the imputation of misconduct that the applicant is solely responsible for the shortage of cash of Rs.5,99,999/- and failed to make the good shortage and thus violated Rule 3 (1) (i) to (iii) of Railway Servants Conduct Rules 1966. He also invited our attention to the observation made by the disciplinary authority in Annexure-II that the departmental action was aimed at examining the lapses on the part of the charged employee regarding the safety of the cash entrusted to him and the inquiry officer found that there is a lapse on the part of the charged employee to adhere to the rules in force to ensure safety of the cash entrusted to him. He also invited our attention to similar observations made by the appellate authority in Annexure A-IV and the revisional authority in Annexure A-VI. In para 5.4 of the said order (Annexure A-IV), the appellate authority observed that the cashiers are required to deposit their cash in the safe provided to them either by securing cash box in the safe or if the safe is not large enough to accommodate the cash box, the cash should be placed in a canvas bag and deposited in the safe, and in this case the charged employee has kept the cash box outside the safe on the ground that the safe was not large enough to accommodate the cash box, leading to the loss of nearly Rs.6 lakhs and that the said loss could have been prevented if the applicant had secured the cash in a canvas bag and put the same in the safe. Similarly, as seen from Annexure A-VI, the revisional authority observed in para 2.4.1 that though the misappropriation is not proved beyond doubt, the loss of cash is attributable to the charged employee as the same was entrusted to him and further the loss could have been prevented if the cash was properly secured in the cash safe and that the failure to properly secure the cash certainly tantamount to negligence and lack of devotion to duty on the part of the charged employee. But, the respondents failed to note that it is not the charge framed against the applicant. Had there been such a charge, the applicant would have got an opportunity to meet the allegation of such lapses, but as there was no such charge, of either lapses or violation of guidelines relating to the securing of cash, the applicant had no opportunity to explain or adduce evidence in that regard. Therefore, without there being a specific charge, in respect of those lapses for which the applicant is punished, the punishment is not sustainable. But, however, the department is not estopped to frame specific charge in respect of those alleged lapses giving due opportunity to the applicant to meet such allegation and proceed against the applicant afresh as those alleged lapses were not the subject matter before the Criminal Court and as there was no occasion for the Criminal Court to give finding on such alleged lapses. In Ravuru Babu Vs. General Manager, Oriental Insurance Co. Ltd., Madras reported in 1997 (1) ALT 805, the Division Bench of Hon'ble High Court of A.P., while holding that conducting departmental inquiry on the very same issues and evidence in respect of which Criminal Court and Civil Court gave findings is unfair and improper, further observed that if the department is of the opinion that it is not worthwhile to continue the delinquent employee in the department, the department is at liberty to take such decision on any other charge against him but not on the basis of the same charge which was found not proved by the Criminal Court. Thus, the department is given liberty to frame other charge in respect of which no finding was given by the Criminal Court. Here, in the instant case, admittedly, the lapses on the part of the applicant, who is a cashier in securing the Government cash, was not the subject matter before the Criminal Court and there is no finding in that regard. Therefore, in our considered view, the department is at liberty to frame fresh charge in respect of the alleged lapses and proceed in accordance with rules. Thus, this point is found accordingly.
13. Point No. (v):
In the result, the impugned orders of punishment of compulsory retirement imposed by the appellate authority which is confirmed by the revisional authority are set aside and the respondents are directed to reinstate the applicant, giving liberty to the respondents to initiate discipline proceedings afresh in respect of the alleged lapses on the part of the applicant if the respondents so desired and to complete the same within six months from the date of receipt of these orders. Further, the respondents are at liberty to keep the applicant under suspension after reinstatement in the event of initiating fresh disciplinary proceedings, pending inquiry. Accordingly, the OA is disposed of. There shall be no order as to costs.
( R. Santhanam) (P. Lakshmana Reddy)
Member (A) Vice-Chairman
Dated: 11th February, 2009