Central Administrative Tribunal - Delhi
Sh. Vivekanand Singh vs Delhi Development Authority on 12 August, 2015
Central Administrative Tribunal
Principal Bench, New Delhi.
OA-3143/2012
Reserved on : 03.08.2015.
Pronounced on : 12.08.2015.
Honble Mr. Shekhar Agarwal, Member (A)
Honble Mr. Raj Vir Sharma, Member (J)
Sh. Vivekanand Singh,
S/o Sh. Bhadur Singh,
R/o RZ-J-28/233, West Sagar Pur,
New Delhi-110005. . Applicant
(through Sh. K.B.B. Singh, Advocate)
Versus
Delhi Development Authority
Through its Vice Chairman,
Vikas Minar, New Delhi. . Respondents
(through Sh. Karunesh Tandaon, Advocate)
O R D E R
Mr. Shekhar Agarwal, Member (A) The applicant joined services of the respondents as LDC on 20.12.1984. On 17.06.1987, an inspection of the seat of the applicant was conducted by the then Chief Accounts Officer. On the basis of the same, a letter was issued on the same date to the applicant asking him to deposit Rs.2,55,000/- found less in the account. On 24.06.1987, the applicant was placed under suspension. On 29.11.1988, FIR No. 683/1988 U/s 409 & 411 of IPC was lodged against the applicant. Separately, a departmental enquiry was also initiated. On 27.07.1990, penalty of dismissal was imposed upon the applicant by the Disciplinary Authority (DA). His appeal against the same was dismissed by the Appellate Authority (AA) on 15.01.1991. The applicant challenged the aforesaid order in the Honble High Court of Delhi by means of C.W.P. No. 990/1992. This was allowed on 09.02.1996 and directions were given to the Appellate Authority to pass a fresh speaking order recording reasons for its decision on the issues raised in the appeal by the petitioner. In compliance thereof, the respondents passed a fresh order on 03.05.1996 by which the appeal of the applicant was again rejected. On 22.10.2009, the applicant was convicted by Lower Court U/s 409 of IPC. He challenged the order of conviction before the Learned Special Judge. Learned Special Judge on 05.07.2010 set aside the conviction and sentence of the applicant. Thereafter, the applicant made several representations to the respondents on 26.08.2010, 03.11.2010, 14.06.2011, 12.07.2011, 09.09.2011 and 27.10.2011 requesting for reinstatement in service. A legal notice was sent by him on 23.11.2011. On 11.01.2012, the respondents replied to the legal notice rejecting his request for reinstatement. Hence, he has now filed this O.A. before us seeking the following relief:-
(i) This Honble Tribunal may kindly be pleased to summon the letter/record pertaining to the internal enquiry conducted by the Respondent and be pleased to quash and set aside the impugned order No. 244/Vig dated 27.07.1990 there by dismissing the aggrieved employee/applicant Shri Vivekanand Singh Ex. LDC and the subsequent order of No. 158/Vig dated 02.05.1996 and issue directions to the respondents to reinstate the applicant with full back wages and all legal benefits.
(ii) Cost of this application may also be awarded in favour of the applicant.
(iii) Any other order which this Honble Tribunal deem fit and proper be also passed in favour of the applicant.
2. The contention of the applicant is that the enquiry conducted by the respondents was biased and conclusions drawn therein were based on presumptions and surmises. He has stated that the mess created on the seat allotted to the applicant was because of his predecessor, who had himself faced charges of misappropriation. The respondents provided no assistance to him to clean up the mess. The Chief Accounts Officer (CAO) was maintaining close supervision of his seat and conducted the checking without any rhyme or reason since there was no complaint against him. The same CAO appeared as a witness in the internal inquiry. He was also a complainant in the FIR lodged against the applicant. The applicant was given no opportunity to recover the amount from the agents who had given affidavits in his support. Even the charges framed against the applicant were contradictory as he had not been receiving any cash directly from the agents. The Enquiry Officer (EO) has come to the conclusion without application of mind. The applicant has clearly demonstrated his innocence. His claim is substantiated by the judgment of Learned Special Judge, who has given a finding in favour of the applicant. The punishment of dismissal awarded to him was disproportionate to the gravity of the charge proved against him. Lastly, the applicant has pleaded that he was hopeful of earning livelihood for himself and his family consisting of wife and four children and needed sympathetic consideration.
3. In their reply, the respondent shave stated that the order of dismissal dated 02.05.1996 has attained finality and the outcome of criminal proceedings will not have any effect on the same. According to them, this O.A. suffers from delay and laches and deserves to be dismissed. The order against the applicant was passed after conducting an enquiry under Rule-16 of Delhi Development Authority Regulation, 1961. In the conduct of enquiry, due procedure was observed and penalty of dismissal was awarded after considering all aspects of the matter. The applicant preferred an appeal before the AA, which was rejected way back in the year 1990. Then the applicant approached Honble High Court of Delhi by filing CWP No. 990/1992. All the grounds taken by the applicant and all the facts of the case had earlier been considered by Honble High Court of Delhi and now filing of this O.A. is merely an abuse of the process of law. The respondents have further stated that while it is true that the Learned Special Judge has set aside the conviction of the applicant, yet he has also observed in his order that nothing mentioned herein above shall stand in taking departmental action against the appellant. The applicant, however, has not disclosed the full text of the judgment with mala fide intention.
4. We have heard both sides and have perused the material on record. Learned counsel for the applicant has also submitted his written arguments as well as a list of supporting judgments, which have been placed on file.
4.1 It is not disputed that the disciplinary proceedings against the applicant concluded in the year 1990 when order of dismissal was passed by the DA. His appeal was also rejected on 15.01.1991 by the AA. The applicant had challenged these orders before Honble High Court of Delhi. The Honble High Court of Delhi had set aside the order of AA and directed that a fresh speaking order recording reasons for its decision on the issues raised in his appeal be passed. The respondents thereafter passed fresh order in appeal on 03.05.1996 again rejecting the appeal and maintaining the order of dismissal. The applicant did not challenge the fresh order passed by the AA in any forum. Thus, the order dated 03.05.1996 has attained finality with passage of time. It is now not open to the applicant to challenge the action taken in the disciplinary proceedings on the ground that there was any infirmity in the conduct of the same. We notice from the grounds taken by the applicant that most of them relate to the short comings in the disciplinary proceedings. As mentioned above, it is too late now for the applicant to challenge the disciplinary proceedings. It is also noteworthy that the applicant had approached Honble High Court of Delhi also on the same issue. Honble High Court of Delhi had directed the AA to pass a fresh reasoned and speaking order. The order of DA was not interfered with nor any infirmity was found in the conduct of the disciplinary proceedings. Thus, none of the grounds taken by the applicant to challenge the disciplinary proceedings can now be entertained.
4.2 The only new development in the matter is that Learned Special Judge has set aside the order of conviction passed by the Trial Court against the applicant. We have now to examine whether this acquittal order will have any impact on the disciplinary proceedings, which had culminated as long back as in the year 1996.
4.3 We have first looked at the Articles of Charge framed against the applicant in the disciplinary proceedings and the charges framed against him in the criminal case. In the disciplinary proceedings, the following were Articles of Charge against him:-
Article-I That the said Shri Vivekanand Singh, LDC during the above said period had unauthorisedly sold prepaid lottery tickets of Delhi Lotteries on credit to the local dealers/agents in violation of the Scheme of Delhi Lotteries.
Article-II That the said Shri Vivekanand Singh, LDC as on 17.6.1987, when his Branch was inspected by the CAO, had to deposit a sum of Rs.2,55,000/- lakhs against which till 12.8.1987 he had remitted only Rs.79,500/-. The balance amount of Rs.1,75,000/- was left to be deposited by Shri Vivekanand Singh, LDC which tantamounts to embezzlement of Govt. money.
Article-III That the said Shri Vivekanand Singh, LDC during the aforesaid period in the aforesaid office did not maintain or render detailed account of sales of lottery tickets on credit. The lottery accounts were kept pending despite issue of repeated instructions from the office of Delhi Lotteries with ulterior motive.
Shir V.N. Singh, LDC by his above acts of commission and omission failed to maintain absolute integrity and devotion to duty thereby contravening Rule 3 of CCS (Conduct) Rules 1964 made application to the employees of the Authority. The charge against the applicant in the criminal case is mentioned in Para-2 of the order of Learned Special Judge, which reads as under:-
In brief, the case of the prosecution is that the Delhi Development Authority had been running lotteries under the scheme Kamdhenu, Kalpatru and Rajdhani. It had its sales office at Vijaya Bank, Connaught Place. The appellants being the employees of DDA were entrusted with the sale of lottery tickets at the branch. For purchasing a lottery ticket, the purchaser was required to deposit money in Vijaya Bank by filling a quadruplicate challan form. Vijaya Bank, after receipt of cash, was to give two copies of the challan to the depositor. The depositor was to submit one copy to the sales office on the basis of which, lottery tickets used to be issued to him.
Sh. K.C. Kapoor, Accounts Officer lodged a complaint with the police alleging that the appellant Ram Chander did not submit the accounts in regard to the draw no. 348 of Kamadhenu lottery held on 17/4/1986 and misappropriated a sum of Rs. 1,44,687.20 in respect of the aforesaid lottery scheme. He further alleged that after suspension of Ram Chander, on 24/12/1986, the appellant V.N. Singh UDC was entrusted with the aforesaid work who also misappropriated the funds and made a short remittance to a tune of Rs. 2,63,551.80. Out of the said sum, appellant V.N. Singh deposited a sum of Rs.98,400/-. It was alleged that both the appellants were entrusted with the sale of lottery tickets in their capacity as such public servants but they committed criminal breach of trust by misappropriating the said sum. [Learned Special Judge was hearing appeals filed both by Shri Ram Chander and the applicant herein.] A mere reading of the same would make it abundantly clear that the main charge in both disciplinary proceedings as well as criminal proceedings against the applicant was not depositing the amount collected from sale of lottery tickets in Government account and misappropriating the same. In disciplinary proceedings, an additional charge pertaining to late submission of account was also added. Further, we notice that in disciplinary proceedings, there was only one witness from the prosecution side, namely, Sh. K.C. Kapoor, Accounts Officer. In the criminal case, Sh. K.C. Kapoor was the complainant as well as a witness. In the criminal case, Learned Special Judge has given his findings as follows:-
10. Dishonest intention is sine qua non for an offence of criminal breach of trust, which is missing in the present case. The appellants have given the statement of accounts and the reply in the inquiry conducted by the department explaining their position alleging that PW2 did not consider the fact that the lottery tickets were given on credit. The claims were issued on red challan and that the prize winning amount was not adjusted. In the present case, only PW2 was the material witness. He did not file the details of accounts allegedly misappropriated. Nor he filed the books of accounts to prove that such and such amount was misappropriated by the appellants. There is no-one to corroborate his testimony. Although documents were sent to handwriting expert but it was not at all disputed by the appellants that the accounts maintained by them or the documents do not bear their signatures. The agents themselves have admitted in their letters that they had taken the tickets on credit, so now can the appellant be held criminally liable for the aforesaid offence.
11. It is well settled law that every offence of criminal breach of trust involves a civil wrong in respect of which the complainant may seek his redress for damages in the civil court, but every breach of trust in the absence of mens rea, cannot legally justify a criminal prosecution. In the instant case, there is no evidence that the appellants used to handle the cash. They were required to issue the tickets against the challans and submit the accounts. The record shows that even earlier, the tickets used to be given on credit. Admittedly, there were guidelines in the form of Ex. PW3/A which were not strictly followed by the appellants for which the appellants could be held liable for departmental action but under no circumstances it cannot be said to be a case of criminal breach of trust. There is no evidence that the appellants misappropriated or converted to their own use the sum against the lottery tickets. It at the best can be taken as late submission of accounts. They have given each and every details of the accounts and also submitted the affidavits of the agents to show their bonafides.
12. Admittedly their approach was casual in issuing lottery tickets to the agents contrary to the instructions and in making claim on red challan as against white challan on the prize money but nothing can be inferred from the record that they had dishonest intention to misappropriate the amount. Although they were discharging their duties but somehow they were negligent. When the complaint was lodged, they submitted the statement of accounts explaining the discrepancy noticed by the complainant and also collected the affidavits from the agents. The trial court had also accepted the affidavits of the agents and held that their failure to make payment does not give rise to any criminal liability. At the most, it is a case of breach of contract for which civil remedy lies. Admittedly, they were entrusted with the work of sale of lottery tickets and had dominions on the record but at the same time they had submitted the accounts regarding the prize tickets with the computer branch, Nehru Place. Further Bank guarantee used to be taken from the agents, so in the case of any deficiency on sale on credit. DDA could recover the amount from the agents as per affidavis.
13. xxxxxx
14. Taking into consideration all these facts and in the light of above discussions I am of the view that it is not a case of criminal breach of trust by the appellants, rather it is a case of late submission of statement of accounts and not following the instructions given by the department for which departmental action lies against the appellants.
15. I, therefore, set aside the order of conviction and sentence passed by the Trial Court and acquit the appellants of the offence punishable u/s 409 IPC. Their bail bonds be cancelled, sureties be discharged. Nothing mentioned herein above shall stand in taking departmental action against the appellants. Original order be placed in the case of the appeal titled Ram Chander Vs. State and its copy be kept in appeal titled Vivekanand Singh Vs. State. Learned Special Judge has come to the conclusion that the charge of criminal breach of trust against the applicant could not be proved as this was a case only of late submission of accounts. Thus, it is clear that Special Judge has given a finding, which is contradictory to the findings arrived at in disciplinary proceedings against the applicant in which Articles-1 & 2 of the charge against the applicant were found to have been proved.
4.4 The question to be examined now is whether the order in the disciplinary proceedings can be over turned because of the findings of the Learned Special Judge. It is not disputed that the orders in disciplinary proceedings were passed on the basis of evidence adduced in the disciplinary proceedings and were not based on conviction of the applicant by the Trial Court as these orders were passed way back during the period 27.07.1990 to 03.05.1996 whereas the conviction order by the Trial Court was passed much later on 22.10.2009. Thus, the orders in the disciplinary proceedings stand on their own strength. In this regard, we have seen the judgment of Honble Supreme Court in the case of The Divisional Controller, KSRTC Vs. M.G. Vittal Rao, (Civil Appeal No. 9933/2011) decided on 18.11.2011. In Para-19 of the aforesaid judgment, the following law is laid down:-
Thus, there can be no doubt regarding the settled legal proposition that as the standard of proof in both the proceedings is quite different, and the termination is not based on mere conviction of an employee in a criminal case, the acquittal of the employee in criminal case cannot be the basis of taking away the effect of departmental proceedings. Nor can such an action of the department be termed as double jeopardy. The judgment of this Court in Capt. M. Paul Anthony (supra) does not lay down the law of universal application. Facts, charges and nature of evidence etc. involved in an individual case would determine as to whether decision of acquittal would have any bearing on the findings recorded in the domestic enquiry. We notice on going through the aforesaid judgment that before laying down the law as mentioned above, Honble Supreme Court have examined several other judgments on this issue, such as:-
(i) Nelsom Motis Vs. UOI & Anr., AIR 1992 SC 1981.
(ii) State of Karnataka and Anr. Vs. T. Venkataramanappa, (1996) 6 SCC 455.
(iii) State of Andhra Pradesh Vs. K. Allabaksh, (2000)10 SCC 177.
(iv) Ajit Kumar Nag Vs. General Manager (PJ) Indian Oil Corporation Ltd., (2005)7 SCC 764.
In all these judgments, the Apex Court has considered the effect of criminal case on disciplinary proceeding and have opined that acquittal in a criminal case cannot be held to be a bar to hold departmental enquiry for the same misconduct for the reason that in a criminal trial standard of proof is stricter as the case has to be proved beyond reasonable doubt but in disciplinary proceedings such a strict proof of misconduct is not required and punishment can be awarded on the basis of preponderance of probability. Acquittal in criminal case cannot be construed as a clear exoneration from departmental proceedings.
We also notice that Learned Special Judge has mentioned in his order itself that nothing mentioned therein shall stand in taking departmental action against the appellant (the applicant herein).
4.5 Learned counsel for the applicant has submitted a list of judgments in support of his case. We deal with each one of them as hereunder to see whether any of these judgments can be of any help to the applicant:-
(i) The applicant has relied on the judgment of Honble Supreme Court in the case of Jerome DSilva Vs. The Regional Transport Authority, South Kanara and another, AIR 1952 Madras 853. This judgment deals with the impact of acquittal in criminal Courts on the proceeding before quasi Judicial Tribunals like the Transport Authorities under the Motor Vehicle Acts. Clearly, this is not relevant in the present case as proceedings before Transport Tribunals are carried out under the provisions of the relevant Motor Vehicles Act and cannot be compared with disciplinary proceedings carried out under the relevant disciplinary rules.
(ii) Next he has relied on the judgment of Honble Supreme Court in the case of Qamarali Wahid Ali Vs. State of Madhya Pradesh, AIR 1959 MADHYA PRADESH 46(V 46 C 21). On going through this judgment, we find that in this case the judgment of Criminal Court had come even before the charges in the departmental enquiry had been framed. Thus, the facts of this case are totally different and this judgment cannot be applied to the instant case.
(iii) Further, the applicant has relied on the judgment of Honble Supreme Court in the case of Gurcharan Dass Chadha Vs. State of Rajasthan, AIR 1966 SC 1418 (V 53 C 276). In this case, the punishment order in disciplinary proceedings was passed even when a petition u/s 527 of Cr.P.C. was pending in the Honble Supreme Court. Under those circumstances, Honble Supreme Court had opined that the State Government should have waited for a decision of Honble Supreme Court before proceeding with the enquiry under All India Services (Conduct) Rules, 1954. Again the facts of this case are different from the case at hand.
(iv) Next the judgment relied upon by the applicant is P. Ekambaram Ponnurangam Vs. General Manager and Competent Authority, Mysore Govt. Road Transport Department, AIR 1962 SC 84. We find that in this case the DA had started an enquiry on that very charge on which the delinquent officer had been acquitted by Criminal Court. Again, the facts of this case are different from the instant case because in this case the DA had passed the punishment order much before the order of acquittal by the Criminal Court.
(v) The applicant has also relied on the judgment in the case of R.P. Kapur Vs. UOI and Anr., AIR 1964 SC 787 (V 51 C 101) in which it has been observed by the Apex Court that the usual practice is that where a public servant is being tried on a criminal charge the government postpones of holding a departmental enquiry and awaits the result of the criminal trial. Again in the instant case, this is not relevant as the disciplinary proceedings had been concluded before the orders of Criminal Court.
(vi) The applicant has also relied on the decision of Honble Supreme Court in the case of Jose Varghese Vs. The Food Corporation of India Madras and Anr., 1984(1) SLR 409. In this case, the delinquent government servant had been acquitted by Criminal Court and thereafter a fresh charge sheet was issued to him by the department on the same grounds. Under those circumstances, it was held that government servant cannot be proceeded against departmentally on the same charge. Again facts of the instant case are different as the departmental enquiry has preceded the criminal trial in this case.
(vii) The applicant has also relied on the judgment of this Tribunal in the case of Dinesh Kumar Patnaik Vs. UOI & Ors., 2008(1)SLJ 134. However, as mentioned above, the disciplinary proceedings have already attained finality and it is too late to now question the punishment awarded in the same.
5. Thus, in our opinion, none of the judgments relied upon by the applicant are of any help to him. Based on the reasons mentioned in paras 4.1 and 4.4 above, we come to the conclusion that this O.A. is devoid of merit. We, therefore, dismiss the same. No costs.
(Raj Vir Sharma) (Shekhar Agarwal)
Member (J) Member (A)
/Vinita/