Tripura High Court
Sri Pradip De vs The State Of Tripura on 15 February, 2017
Author: S. Talapatra
Bench: S. Talapatra
1
THE HIGH COURT OF TRIPURA
AGARTALA
W.P.(C) No. 07 of 2013
Sri Pradip De,
son of late Rakhal chandra De,
resident of DNV Road, Dharmanagar,
District- North Tripura, PIN-799250
... Petitioner
- Versus -
1. The State of Tripura,
represented by the Chief Secretary,
Government of Tripura, P.O. Kunjaban,
Capital Complex, Agartala, Pin-799006
2. The Commissioner/Secretary,
Rural Development Department,
Government of Tripura, Capital Complex, Agartala
P.O. Kunjaban, District- West Tripura, Pin-799006
3. The District Magistrate & Collector,
North Tripura Kailashahar,
presently Unakoti District, P.O. Kailashahar, PIN-799277
4. The Sub Divisional Magistrate,
Kanchanpur, North Tripura,
P.O. Kanchanpur, Pin-799270
5. The Block Development Officer,
Dasda R.D. Block, Dasda, Kanchanpur,
P.O. Dasda, PIN-799271
... Respondents
BEFORE
THE HON'BLE MR. JUSTICE S. TALAPATRA
For the petitioner : Mr. KN Bhattacharji, Sr. Advocate
Ms. S.Chakraborty, Advocate
For respondents : Mr. S.Chakraborty, Addl. GA
Date of hearing & delivery
of Judgment and Order : 15.02.2017
Whether fit for reporting : YES
JUDGEMENT AND ORDER (ORAL)
Heard Mr. KN Bhattacharji, learned senior counsel assisted by Ms. S. Chakraborty, learned counsel appearing for the petitioner as well as Mr. S. Chakraborty, learned Additional Government Advocate appearing for the respondents. W.P.(C) No. 07 of 2013 2
2. By means of this writ petition, the petitioner has questioned the legality of the order dated 30.09.2011 (Annexure 16 to the writ petition) passed by the District Magistrate & Collector, North Tripura dismissing the petitioner from the service and also the order dated 26/29.11.2012 (Annexure 17 to the writ petition) whereby the appellate authority has dismissed the appeal filed by the petitioner against the said order dated 30.09.2011 passed by the respondent No. 3, the disciplinary authority.
3. The petitioner while working as Lower Division Clerk in the office of the Block Development Officer, Panisagar, North Tripura he had been slapped with the following charges by the memorandum No. F.12(80)/DP/DNF/2005/4027-28 dated 29.04. 2005 (Annexure 9 to the writ petition):
"ARTICLE-I That Shri Pradip De, LDC (under suspension) while functioning as cashier in BDO's office Dasda has defalcated Govt. fund of Rs.49,72,307/- prima facie detected in connivance with Shri Khagendra Reang, TCS, Gr.II, Ex-BDO,Dasda new absconding concealing the actual facts to his higher authority.
ARTICLE-II That Shri Pradip De, LDC (under suspension) ex-cashier of Dasda Block joined in Panisagar Block on 27.01.05 being stand released from Dasda Block w.e.f. 15.01.05. But said Shri Pradip De, LDC (under suspension) violating the Service Conduct Rules un- authorisedly attended the BDO's office, Dasda and drawn an amount of Rs.30,00,000/- from TGB, Kanchanpur Branch on 19.03.05 in connivance with BDO, Dasda and defalcated the entire amount".
4. For purpose of understanding the charge properly, the statement of imputation of misconduct (Annexure 2 of the said memorandum dated 29.04.2005) may be visited. It has been W.P.(C) No. 07 of 2013 3 stated that the petitioner who was substantively appointed as Lower Division Clerk was in-charge of the cashier of Dasda Block and on transfer he joined Panisagar Block on 27.01.2005, though he was released on 15.01.2005 afternoon. Without having any authority, the petitioner attended the office of the Block Development Officer, Dasda and drew an amount of Rs.30,00,000/- from Tripura Gramin Bank, Kanchanpur Branch on 19.03.2005 in connivance with the BDO, Dasda and defalcated the entire amount. The said amount of Rs.30,00,000/- was drawn by cheques No. 402610 dated 18.03.2005, 402611 dated 18.03.2005 and 402612 dated 18.03.2005 for making payment advance to the implementing officers, namely 1) Sri Punyadhan Reang, 2) Sri Dhananjoy Reang and 3) Sri Chandham Reang at Rs.10,00,000/- each. The implementing officers were forced by the petitioner to put their signature on the Aquittance Roll, but payment was not actually made to them. On this charge in the core of the allegations, the departmental proceeding was initiated by the said memorandum. It would be evident from the said memorandum (Annexure 3 to the writ petition) that during the initial inquiry, the statements of the implementing officers were recorded. All the relevant documents are referred in Annexure-3 to the writ petition. In the list of the witnesses under Annexure-4, the name of the incumbent cashier, namely, Sri Samiran Chakraborty has figured.
5. Mr. Bhattacharji, learned senior counsel appearing for the petitioner has raised two fundamental objections viz (i) that the W.P.(C) No. 07 of 2013 4 incumbent cashier, namely, Samiran Chakraborty in his statement made under Section 313 Cr.P.C in case No. G.R. 137 of 2005 in the court of the Judicial Magistrate, 1 st class, Kamalpur, North Tripura has categorically stated that "according to pay order I prepare cheques wherein the BDO puts his signature. The cheques are then handed over to the implementing officers procuring their signature on the Aquittance Roll, cheque Issue register and the counter foils of the cheques. I as a cashier put my signature on the cheques after preparation thereof. In case of cash payment, the signature of those to whom the same are paid are taken in Acquittance Roll".
According to Mr. Bhattacharji, learned senior counsel, this very statement exonerates the petitioner from the allegation that he prepared the cheques and encashed those from the Tripura Gramin Bank, Kanchanpur Branch. Mr. Bhattacharji, learned senior counsel has further submitted that if the records of evidence as gathered during the enquiry proceeding are properly appreciated, it would be apparent that the charges as framed against the petitioner could not be proved by the presenting officer appearing for the disciplinary authority. Thus, the finding of the inquiry authority in the report dated 24.01.2011 that it has been clearly established that the petitioner attended the office of the BDO, Dasda on 29.01.2005, 10.02.2005 and 19.03.2015 unauthorisedly although the petitioner was released from the said office and joined the office of the BDO, Panisagar on 21.07.2005 cannot be sustained. In support of the tools to be used in the judicial review against an order emanating from a departmental proceeding, Mr. Bhattacharji, learned senior counsel has succinctly submitted that even the W.P.(C) No. 07 of 2013 5 weight of evidence can be examined in the judicial review. In support of his contention Mr. Bhattacharji, learned senior counsel has relied on a decision of the Apex Court in High Court of Andhra Pradesh vs. Nirmala K.R. Deyavathi and another reported in (2015)15 SCC 681. In that case the Hon'ble Supreme Court having found that the inquiring authority even did not properly appreciate the evidence brought on record, reached to a finding which can highly be tenable with the weight of the evidence, as considered. The Apex Court in Nirmala K.R. Dayavathi (supra) has observed as under:
"On a totality of these materials, the High Court in the exercise of writ jurisdiction had thought it proper to interfere with the punishment imposed. While doing so, the High Court was fully aware of highly constricted jurisdiction available to it under Article 226 of the Constitution to interfere with an order of punishment passed after holding of a departmental proceeding. Narrow and limited though, it may be, it has to be acknowledged that the jurisdiction under Article 226 of the Constitution would permit interference by the High Court in respect of findings of the enquiry officer and the conclusions of the disciplinary authority arrived at on that basis in cases where the weight of the evidence is opposed to the conclusions recorded rendering the same ex facie erroneous or perverse. This is precisely what had happened in the present case".
With that proposition of law, this court cannot have any differing opinion at all inasmuch as this is the settled principle for appreciating the challenge from a departmental proceeding against the order of penalty. The main plank of appreciation in the judicial review would "ex facie error or perversity". Mr. Bhattacharji, learned senior counsel has fairly admitted that the statement recorded under Section 313 of the Cr.P.C was never produced before the inquiring authority or to the disciplinary authority. This statement is for the first time being invited for consideration by introducing the same with this writ petition. W.P.(C) No. 07 of 2013 6
6. Mr. Chakraborty, learned Additional Government Advocate appearing for the State has submitted that the report of the inquiry authority is exhaustive in nature and there is no ex facie error or perversity in the said report. Even the petitioner on getting a copy of the said report has submitted the representation in respect of the inquiry report dated 24.01.2012. In the said representation dated 23.08.2011, even though reference of case No. G.R. 137 of 2005 has been made but no reference so far it is related to the statement made under Section 313 of the Cr.P.C has been made.
7. From Annexure 10 to the writ petition (the statement made under Section 313 of the Cr.P.C), this court could not find when the said statement was recorded. In the representation dated 23.08.2011 what the petitioner has urged is that all defence documents were lying with the court of the Sub Divisional Judicial Magistrate, Kanchanpur and hence the petitioner would suffer serious prejudice in absence of those documents if the proceeding is taken to its finality. But after scanning the entire representation dated 23.08.2011, this court could not find out which document the petitioner has referred to. As a result the generality of such statement did not persuade this court to draw any adverse inference for withholding the material document despite requisition made by the delinquent officer.
8. Having considered the said representation which was filed in pursuance to the memorandum dated 16.08.2011 (Annexure 14 to the writ petition), it appears that in the inquiry W.P.(C) No. 07 of 2013 7 proceeding as many as nine documents (Exhibit 1 to 9) were adduced along with eleven witnesses including the incumbent cashier, namely, Samiran Chakraborty (PW-9). The petitioner has examined himself as DW-1 and introduced as many as fourteen documents (Exhibit D/1 to D/14) which include the transfer order dated 11.01.2005 so as to contend that the petitioner at the time of withdrawal of that huge amount in cash, to the extent of Rs.30,00,000/- was relieved and he had no domain over the property. Therefore, the allegation of misappropriation cannot stand the scrutiny of law inasmuch as sine qua non for any misappropriation should preceed by the elements of domain over the property and its actual taking out for a period which may be a longer time and conversion of the same for personal benefit. It may be further noted that conversion of the misappropriated property may not be directly proved but it can be proved by its retention.
9. This court has also scrutinized the file of the departmental proceeding as produced by Mr. Chakraborty, learned Additional Government Advocate and finds from the testimonies of Sri Dhananjoy Reang(PW-3), Sri Chandhahum Reang (PW-4) and Sri Purnadhan Reang (PW-6) who were either working as Panchayat Secretary at the relevant point of time and were designated implementing officers for the work for which the money was taken have categorically stated that no payment was made, but an advance receipt was taken from them and thereafter no money was paid. He has categorically stated that W.P.(C) No. 07 of 2013 8 Sri Khagendra Reang, BDO directed them to put their signature on the acquittance roll and money advance register for an amount for more than Rs.10,00,000/- as if that amount of money were drawn by them but ultimately no money was given to them. In the cross examination, PW-6 has categorically stated that he has put his signature on the back of the cheque in question as demanded by the accused officer and another Samiran Chakraborty and the Block Development Officer, Dasda. Samiran Chakraborty, the incumbent cashier (PW-9) has clearly admitted that he took over the charge of the cash section of the concerned Block. Before the petitioner was released from the Dasda Block, the petitioner was working as the cashier in the said Block but in the cross examination he has stated as under:
"I can not recollect whether cheque No. 402610 dated 18.3.2005 Rs. 10,00,000/-, No. 402611 dated 18.3.2005 for Rs. 10,00,000/- and No. 402612 dated 18.3.2005 for Rs. 10,00,000/- for advancing to the Implementing Officers namely Purnadhan Reang, P/S, Sri Dhananjay Reang, P/S and Sri Chandaham Reang, P/S were issued respectively. It is a fact that there is Joint C.D A/c lying with the Tripura Gramin Bank, Kanchanpur Branch in the name of myself and the then BDO, Khagendra Reang. It is the settled rule that cheque of such C.D. A/c are not placed before the bank without joint signature of those holders for encashment of any such cheque of C.D A/c . I cannot also remember whether aforesaid cheques in question were signed by me being cashier of the concerned block during the relevant period. I cannot also recollect whether those cheque in question were entered into the cheque issuing register and acquitance roll. I cannot also remember whether the Implementing Officers named above against whom cheque were issued put their signatures on the back side of the cheques in question. I cannot recollect whether those cheques in question were signed by the then BDO, Sri Khagendra Reang. I cannot also remember the then BDO Sri Reang being DDO checked the acquitance roll and cheque issuing register by putting his signatures. It is a fact that I handed over the aforesaid cheques to the three implementing officers named above. This is the photocopy of the transferred of the A.O issued by the D.M. & Collector, North Tripura dated 11.1.2005. Let it be marked as Exbt. D/1. This is the photocopy of the memo dated 24.1.2005 issued by the then BDO, Dasda RD Block for haning over the charge of the A.O to me. Let it be marked as Exbt. D/2. This is the photocopy of handing over and taking over the charge between the A.O and myself on 29.1.2005 marked as Exbt. D/3. This is the photocopy of release order dated 25.1.2005 issued by the then BDO, RD Block marked as Exbt. D/4. This is the photocopy of order of D.M & Collector dated W.P.(C) No. 07 of 2013 9 11.1.2005 marked as Exbt. D/5. This is the photocopy of joining order of the A.O dated 3.2.2005 issued by the then BDO, Panisagar marked as Exbt. D/6. After taking over the charge from the A.O I also dealt with the IAY Scheme. The aforesaid three cheques were issued from the account of IAY Scheme. Prior to the taking over the charge from the A.O I issued to assist the Incharge of the establishment section Sri Ranjit Debbarma. I cannot remember before issuing the aforesaid cheques whether those implementing officers submitted requisitions or there was any pay order issued by the BDO against those three cheques in question".
10. Therefore, the said statement of PW-9 in no way would help to prove the charge as brought against the petitioner but from the statement of PW-2 (Sri Bijan Rakshit) it would appear that with connivance of Khagendra Reang, the then BDO, Dasda RD Block and PW-9, the cheques were prepared in presence of the accused officer and as per direction of the said BDO, he had signed the acquitance roll, but the documents have told a different story. To those witnesses, PW-1 has categorically stated in his cross examination as under:
"During my inspection I examined relevant documents like advance register, acquaintance roll and cheque register and I found that 3 nos. of bearer cheques were issued on 18.3.2005 in favour of the Implementing Officer involving total amount of Rs.30.00 lakh by the then BDO, Dasda RD Block namely Sri Khagendra Reang. As per information given by some of the Implementing Officer I came to learn that the Ex-cashier (A.O) had withdrawn the amount from the Tripura Gramin Bank, Kanchanpur Branch against those cheques in question. Presently I cannot recollect the name of any implementing officer from whom I learned. Verbally I discussed with the authority of the concerned Gramin Bank about the transaction of those cheques. I interrogated the A.O partly because during interrogation A.O fled away from the place of interrogation. I enquired the aforesaid matter in three spells but during my inspection the A.O was not posted in the Office of the BDO, Dasda RD Block. W.V. There was secret information against the A.O about his movement and malpractice in the office of the concerned BDO but information was available that he used to come off and on to the office of the BDO, Dasda and took part during transaction along with the then cashier namely Sri Samiran Chakraborty. During my enquiry/inspection on 26.4.2005 an amount of Rs. 4.00 lakh was recovered from Sri Pradip De (A.O) Ex-cashier and officials of the BDO, Dasda was asked to deposit the recovered amount from the concerned bank. Further inquiry could not be done as Sri De (A.O) fled away".
Even PW-1 had requested the BDO, Panisagar for compelling the attendance of the A.O. for further inquiry and for W.P.(C) No. 07 of 2013 10 ensuring his appearance at the chamber of PW-1, but before recording his statement the A.O fled away.
11. PW-10, Sri Ranjit kumar Deb has also similarly stated that he had personally verified the counter foils of the cheques against the account no. 24 maintained by the Tripura Gramin Bank, Kanchanpur Branch in the name of BDO, Dasda RD Block containing cheque counterfoils No. 402201 to 402225, No. 402601 to 402625, No. 402626 to 402650, No. 402651 to 502675, No. 402676 to 402700 and No. 403176 to 403200 in which the cheque No. 043182 was cancelled and the cheque No. 0403186 to the cheque no. 0403220 remained unused. He has also checked the bill register and other relevant records. He has categorically stated in the inquiry as under:
"On 10.06.05 I examined Sri Sandip Roy, Branch Manager, Tripura Gramin Bank, Kanchanpur Branch and recorded his statement u/s 161 Cr.P.C to ascertain the procedure as to how the payment was made against the cheque nos. 0402610, 040611 and 0402612 of three Panchayat Secretaries namely Purnadhan Reang, Chandraham Reang and Dhananjoy reang to Sri one Pradip Dey, Ex-Cashier of the concerned Block though three cheques were issued individually against the aforesaid three Panchayat Secretaries. In reply during examination the said Bank Manager stated that if the issuing authority of the cheque in question identified the signature of the person on the back of the cheque at the event the said person can draw the money from the bank and this procedure is invoke for open cheque. The said Bank Manager also stated that there was no accounts in the Bank in favour of the Ex-BDO Khagendra Reang of concerned Block and Ex- Cashier Pradip Dey of concerned Block".
He has further stated that on 23.6.2005 he seized some admitted handwriting of Pradip De (A.O) from the office of the BDO, Panisagar RD Block and on that day he sent a prayer to the Ld. SDJM, Dharmanagar with a request for granting police remand if the then BDO, Dasda RD Block namely Sri Khagendra Reang and the present A.O. Sri Pradip Dey surrendered before W.P.(C) No. 07 of 2013 11 the court of law. PW-10 in his cross examination has further revealed as under:
"In course of my investigation I interrogated the Sri Sandip Roy, Branch Manager, Tripura Gramin Bank, Kanchanpur Branch and seized the cheque No. 402610 dated 18.3.2005 Rs. 10,00,000/-, No. 402611 dated 18.3.2005 for Rs. 10,00,000/- and No. 402612 dated 18.3.2005 for Rs. 10,00,000/- if three Panchayat Secretaries namely Purnadhan Reang, Sri Dhananjay Reang and Sri Chandaham Reang. Those cheques were issued against C.D. A/c 24 dated 18.3.2005. Those cheques in question were jointly signed by then then cashier Sri Samiran Chakraborty and the then concerned BDO Sri Khagendra Reang. The aforesaid three Implementing Officers put their signature on the reverse of those cheques in question. I cannot say exactly at this stage without seeing those seized cheques whether the ward bearer on those cheques was cut down. W.V. Those cheques were lying in the court custody ".
12. From scanning of the records, it has clearly appeared that though PW-9 has created a serious cloud by way of making the statement. Even the statement of PW-10 to some extent has corroborated the prosecution witness, but the statement of PW- 1, SDJM who made the preliminary enquiry has clearly stated that even though the relevant cheques were not signed by the petitioner and he had not been at the relevant point of time authorized to transact with the Dasda RD Block but he has meddled with those things. He was instrumental in the fraudulent transaction. No further material is required to satisfy the standard of preponderance of probability. As such, this court does not find any infirmity in the finding returned by the Inquiry Officer. Accordingly, the finding as returned by the Disciplinary Authority as well as by the appellate Authority cannot be questioned. The standard in a departmental proceeding is not that of a standard of a criminal proceeding. It is the duty of the disciplinary authority to probablise the W.P.(C) No. 07 of 2013 12 misconduct. On that basis, interference can be drawn. The particular conduct and the testimonies of the witnesses including the documents as produced it is clearly established that the petitioner had indulged in the transaction which definitely comes within the meaning of misappropriation of the government fund.
13. Having situated thus, this court does not find any merit in this writ petition even after giving due regard to the decision of the Apex Court in High Court of Andhra Pradesh vs. Nirmala K.R. Deyavathi and another reported in (2015)15 SCC 681.
14. In the result, the writ petition stands dismissed. There shall be no order as to costs.
JUDGE Saikat W.P.(C) No. 07 of 2013