Tripura High Court
Sri Kajal Dey vs The State Of Tripura on 2 November, 2017
Author: S. Talapatra
Bench: S. Talapatra
THE HIGH COURT OF TRIPURA
AGARTALA
WP(C) NO.738 OF 2016
Sri Kajal Dey,
son of Bidhubhusan Dey,
resident of 59/1, Old Melarmath,
P.O. Agartala, District-West Tripura
............ Petitioner
- Vs -
1. The State of Tripura
to be represented by the
Commissioner & Secretary to the
Government of Tripura
PWD(R&B),
New Secretariat Building,
New Capital Complex, Kunjaban,
P.S. New Capital Complex,
Agartala, West Tripura, Pin-799 010
2. The Chief Engineer, PWD(R&B)
Government of Tripura,
New Secretariat Building,
New Capital Complex, Kunjaban
P.S. New Capital Complex,
Agartala, West Tripura, Pin-799 006
3. The Chief Engineer(Electrical)
Department of Power,
Government of Tripura,
Bidyut Bhavan,
Banamalipur, Agartala
4. The Tripura State Electricity Corporation Ltd.
to be represented by the
Chairman cum Managing Director, TSECL,
Bidyut Bhavan,
Banamalipur, Agartala
5. The Chairman cum Managing Director
TSECL Ltd., Bidyut Bhavan,
Banamalipur, Agartala.
............ Respondents
WP(C) NO.738 OF 2016 Page 1 of 13
BEFORE
THE HON'BLE MR. JUSTICE S. TALAPATRA
For the petitioner : Mr. Samarjit Bhattacharjee, Advocate
For the respondents : Mr. N. Majumder, Advocate
Date of hearing and delivery of : 02.11.2017
judgment and order
Whether Fit for Reporting : Yes No
√
JUDGMENT & ORDER (ORAL)
Heard Mr. Samarjit Bhattacharjee, learned counsel appearing for the petitioner as well as Mr. N. Majumder, learned counsel appearing for the respondents.
2. The petitioner while serving as the Upper Division Clerk(UDC) under the respondents No.2 and 3 was charged of defalcating or misappropriating the Government money to the extent of `11,13,355.95 as he did not deposit the said amount as the cashier to the bank and had created false challans to be placed in the records. As a result, for misappropriation of `6,00,229.45, the Sub-Divisional Officer(Electrical), Consumer Services Sub- Division No.1, Agartala lodged an information to the Officer In- charge, East Agartala Police Station. On the basis of the said information, investigation was launched and the petitioner was charge-sheeted in the said police case. The petitioner faced the trial. The trial Court by the judgment and order dated 30.12.2005, delivered in G.R. case No.658 of 1993, convicted the petitioner under Sections 468/471/477A/409 of the IPC and sentenced him to suffer RI for seven years and to pay a fine of `10,000/-, in default WP(C) NO.738 OF 2016 Page 2 of 13 of payment to suffer further SI for six month for the offence committed under Section 409 of the IPC and sentenced to suffer RI for three years and also to pay a fine of `5,000/-, in default to suffer SI for three months for the offence committed under Section 471 of the IPC. The petitioner was further sentenced to suffer RI for two years for the offence committed under Section 477A of the IPC, but no separate sentence was imposed for committing offence punishable under Section 468 of the IPC in order to commit offence under Section 471 of the IPC.
3. Against the said judgment of conviction dated 30.12.2005 the petitioner filed an appeal in this Court being Criminal Appeal No.5 of 2006. By the judgment dated 12.06.2014, the said appeal was allowed and the judgment of conviction was interfered with and set aside.
4. Parallelly, against the petitioner, a departmental proceeding was drawn up under Rule 14 of the Central Civil Services(Classification, Control & Appeal) Rules, 1965 on the following articles of charge:
"ANNEXURE-I STATEMENT OF ARTICLE OF CHARGE FRAMED AGAINST SHRI KAJAL DEY, U.D. CLERK.
ARTICLE-I That the said Sri Kajal Dey, L.D.C.(now U.D.C) while functioning as L.D.C/U.D.C dealing with cash in the office of the S.D.O(Elec) Consumer Service Sub-Divn. No.I, Agt. During the period from 14-11-90(i.e. from the date of taken over the charge) to 21-1-93(upto 1. PM) have defalcated an amount of Rs.11,13,355.95(Rupees WP(C) NO.738 OF 2016 Page 3 of 13 Eleven laks thirteen thousand three hundred fifty five and paise ninty five) only being the Govt. revenue which have been collected from the different cashier of the said office in different dates. Thus he failed to maintain integrity and devotion which is unbecoming for a Govt. servant.
ARTICLE-II
That during the aforesaid period and while
functioning in the aforesaid office the said Sri Kajal Dey, L.D.C(now U.D.C) submitted some fraudulent Challans in various dates for a total amount of Rs.11,13,355.95(Rupees Eleven laks thirteen thousand three hundred fifty five and paise ninety five only) to the S.D.O(E) Consumer Service Sub-Divn. No.I, Agt. with entry made in the cash book. Thus he failed to maintain integrity and devotion which is un-becoming for a Govt. servant.
ARTICLE-III
That during the aforesaid period and while
functioning in the aforesaid office the said sri Kajal Dey, L.D.C(Now U.D.C) entered in cash book some fraudulent Challan with-out dipositing the revenue money to the State Bank of India T.L.A. Branch, Agt., where he mentioned of Bank receipt and submitted to the S.D.O(E) Consumer Service Sub-Divn. No.I, Agt., on various dates, thus he failed to maintain integrity which is unbecoming for a Govt. servant.
ARTICLE-IV
That during the aforesaid period and while
functioning in the said office the said Sri Kajal Dey, L.D.C(now U.D.C) had taken away the Treasury remittence book/records for the period from 1-8-90 to 30- 1-91 where the entry of Challan & amount deposited to the Bank has been registered. Thus he failed to maintain WP(C) NO.738 OF 2016 Page 4 of 13 integrity and devotion which is unbecoming for a Govt. servant.
sd/- illegible CHIEF ENGINEER(ELECTRICAL)"
5. The petitioner denied those charges and stated in his written statement of defence that he has been implicated falsely and those imputations have been fabricated against him. In the written statement of defence the petitioner has raised one objection that he was not supplied with the copies of the "fraudulent challans"
mentioned in the charge, and as such he reserved the right to file an additional written statement if those challans are supplied to him by the disciplinary authority.
6. The petitioner categorically asked some documents to be produced for instruction but the disciplinary authority, the respondent No.3 communicated to the inquiring authority by the letter dated 05.07.1995(Annexure-P7 to the writ petition) that the relevant documents had been seized by the police in the course of the investigation and as such the departmental authority is not in control of those documents and those documents cannot be produced even in the departmental inquiry. In view of that, the disciplinary authority had observed in the letter dated 05.07.1995 as under:
"Under the above circumstances the undersigned decided to keep pending the above mentioned departmental proceeding till finalisation of the Court case."
7. In view of that decision of the disciplinary authority, the disciplinary inquiry as undertaken based on the Memorandum dated WP(C) NO.738 OF 2016 Page 5 of 13 29.10.1994(Annexure-P5 to the writ petition) was suspended till completion of the criminal proceeding against the petitioner. As stated earlier, the entire criminal proceeding came to an end by the judgment dated 12.06.2014 whereby the petitioner was acquitted from the charges noted above on benefit of doubt. For purpose of reference the following passage is extracted from the said judgment:
"41. In the instance case, though the prosecution proved that the accused appellant was the in-charge head cashier at the relevant time, but failed to prove beyond reasonable doubt that it is the accused appellant who altered or falsified the challans, the remittance register, cash book etc. with a willful intention to defraud. Mere writing a challan and preparation of cash book on the basis of said challan would not come within the purview of falsification of accounts. Therefore, offence under Section 477-A is also not made out beyond reasonable doubt."
8. Mr. Bhattacharjee, learned counsel for the petitioner has pointed out that when the trial Court passed the judgment of conviction the disciplinary authority mechanically issued the Memorandum dated 22.03.2006(Annexure-P/9 to the writ petition) whereby the petitioner was asked to show cause as to why the misappropriated amount of `11,33,355.95 shall not be realized from him under Rule 11(iii) of the CCS(CC&A) Rules, 1965 out of the amount due to him, if any or otherwise. Further, it was proposed by the said Memorandum dated 22.03.2006 that the disciplinary authority had come to the conclusion that the petitioner WP(C) NO.738 OF 2016 Page 6 of 13 is not fit person to be retained in the service. The petitioner was, therefore, asked to file the representation.
9. The petitioner by filing the representation dated 07.04.2006 has stated that the petitioner being aggrieved by the judgment of the trial Court has preferred an appeal being Criminal Appeal No.5 of 2006 as the judgment of conviction is visited by serious legal defects. But the disciplinary authority(respondent No.2) in consideration of the said representation and in exercise of the power conferred by Rule 19(i) of the CCS(CC&A) Rules, 1965 dismissed the petitioner from the service with immediate effect.
10. On a reading of the said order of dismissal dated 22.05.2006(Annexure-P11 to the writ petition) it would be apparent that the said order was passed on the basis of the judgment of conviction and order dated 02.01.2006 delivered in G.R. case No.658 of 1993, not on the basis of the departmental proceeding which was initiated by virtue of the Memorandum dated 29.10.1994(Annexure-P5 to the writ petition).
11. The petitioner has drawn attention of this Court to a notice issued by his lawyer on 18.12.2007 demanding cancellation of the order dated 22.05.2006 issued by the respondent No.2. But nothing has happened.
12. When this Court had passed the judgment and order dated 12.06.2014 acquitting the petitioner from the charge on benefit of doubt, the petitioner placed that judgment and again WP(C) NO.738 OF 2016 Page 7 of 13 asked the appointing authority to revoke the order dated 22.05.2006 and to reinstate him in the service. The petitioner as well asked for release of the financial and pensionary benefits without delay.
13. Mr. Samarjit Bhattacharjee, learned counsel appearing for the petitioner has submitted that though the said representation was filed on 31.05.2016, no action whatsoever has been taken or communicated to the petitioner. He has further pointed out that the respondents to realize the so called loss they suffered from the alleged act of the petitioner instituted the suit being Title Suit No.93 of 2009. The said suit was dismissed by the judgment dated 20.08.2015 returning the finding that the refund of the house building loan was not met up collected with the alleged defalcated money, and as such, the authority was directed to return the title deed of the petitioner which was in the custody of the authority.
14. No appeal was preferred from the said judgment. Mr. Bhattacharjee, learned counsel has submitted that the said suit was instituted solely for harassing the petitioner.
15. The respondents, Tripura State Electricity Corporation Ltd. instituted one money suit against the petitioner for realizing a sum of `11,13,355.95 which was the subject matter of the criminal prosecution. The Civil Judge, Sr. Division, Court No.2, West Tripura, Agartala having noticed the judgment of this Court has observed that the suit was not maintainable as the it was barred by Article 19(i)(a) of the Limitation Act as the suit was instituted after fifteen WP(C) NO.738 OF 2016 Page 8 of 13 years from the date of knowledge of the alleged misappropriation. Mr. Bhattacharjee has confirmed that even against that judgment and decree dated 20.08.2015 dismissing the suit was not challenged by filing an appeal.
16. Mr. Bhattacharjee, learned counsel in the context of the case has submitted that the order of dismissal from service is bound to be revoked in view of Rule 19 read with the clarificatory note issued in the form of the General Instruction, Ministry of Home Affairs under Office Memorandum No.F.43/57/64-AVD(III) dated 29.11.1966, and further elaborated by the General Instruction C.S.(Dept. of Per.), O.M. No.371/3/74-AVD(III) dated 19.09.1975.
17. Rule 19 provides that where any penalty is imposed on a Government servant on the ground of misconduct which has led to his conviction on a criminal charge the disciplinary authority may consider the circumstances of the case and make such orders thereon as it deems fit, provided that the Government servant may be given an opportunity of making representation on the penalty proposed to be imposed before any order is made in a case under Clause(i) of Rule 19 of the CCS(CC&A) Rules, 1965, where the consultation of the Public Service Commission is necessary the Public Service Commission shall be consulted.
18. By the general instruction it has been provided that if an appeal/revision in the higher Court against conviction succeeds and the Government servant is acquitted, the order imposing a penalty on him on the basis of conviction, which no longer stands, WP(C) NO.738 OF 2016 Page 9 of 13 becomes liable to be set aside. The course of action as suggested by the said general instruction is with a view to decide (a) whether the acquittal should be challenged in a still higher Court (b) whether, despite the acquittal, the facts and circumstances of the case are such as to call for a departmental enquiry against the Government servant on the basis of the allegations on which he was previously convicted.
19. In the present case, as Mr. Bhattacharjee, learned counsel has appeared and submitted that the said order of dismissal from the service was passed under Rule 19 on the basis of the judgment of conviction and order of sentence passed by the trial Court as stated, it was not an outcome of a disciplinary proceeding. Therefore, when the petitioner has been acquitted, invariably the dismissal order, according to Mr. Bhattacharjee, has to be recalled/revoked by passing the appropriate order in respect of release of the pay and the pension of the petitioner. Mr. Bhattacharjee has not failed to mention that the petitioner was placed under suspension under Rule 10(2) of the CCS(CC&A) Rules, 1965 as he was framed in the criminal case. But no order revoking the suspension has yet been passed.
20. As the order of dismissal, as Mr. Bhattacharjee projects, was passed, no such order has been passed.
21. From the other side Mr. N. Majumder, learned counsel appearing for the respondents has fairly acceded to the contention of Mr. Bhattacharjee that since the dismissal order was passed WP(C) NO.738 OF 2016 Page 10 of 13 invoking the provisions of Rule 19 of the CCS(CC&A) Rules, 1965 there is no other alternative but to recall the order of dismissal in view of the judgment and order dated 12.06.2014 delivered in Criminal Appeal No.5 of 2006 by this Court as the said judgment and order has not been assailed in the superior Court. But both Mr. Bhattacharjee and Mr. Majumder, learned counsel appearing for the petitioner and the respondents respectively have agreed that the departmental proceeding was kept on hold subject to disposal of the criminal proceeding and no final order had been passed by the disciplinary authority. Since the departmental proceeding has been launched before the judgment of conviction and it is unrelated to the judgment of acquittal, the disciplinary proceeding shall have to be taken to its logical end. Else, the departmental proceeding survives in view of the provision of Rule 9(2) of the Central Civil Services(Pension) Rules, 1972 as adopted in the State of Tripura.
22. There cannot be any amount of dispute that the disciplinary authority in a case where there is no departmental proceeding is within his competence to pass the appropriate order for releasing the pay and allowances.
Rule 9(2)(a) of the CCS(Pension) Rules, 1972 provides that the departmental proceeding referred in sub-rule(1), if was instituted while the Government servant was still in service, whether before his retirement or during his reemployment, shall, after the final retirement of the Government servant, be deemed to be proceeding under this rule and shall be continued and concluded WP(C) NO.738 OF 2016 Page 11 of 13 by the authority by which they were commenced in the same manner as if the Government servant had continued in service.
23. Mr. Bhattacharjee, learned counsel has strenuously argued before this Court that since the petitioner has retired from the service the departmental proceeding may not be allowed to continue. This Court is constrained to observe that it is not the Court but the disciplinary authority has to take decision whether they will continue with the departmental proceeding or not in the given context of this present case or particularly, in the aftermath of the judgment of acquittal.
24. In view of what has been observed, the order dated 22.05.2006(Annexure-P11 to the writ petition) stands quashed and set aside.
As Mr. Bhattacharjee has stated that, the petitioner has already retired from the service, the petitioner neither can be reinstated nor can be placed under suspension. With his retirement, the order of suspension has become in-operative the disciplinary proceeding survives against the petitioner. Still, it shall be drawn to its logical end within six months from the day when the petitioner shall produce the copy of this order to the disciplinary authority. The petitioner shall be paid provisional pension from 12.06.2014 and continue to pay such provisional pension till the conclusion of the departmental proceeding. The arrears on account of the provisional pension, if any, shall be paid within a period of six WP(C) NO.738 OF 2016 Page 12 of 13 weeks from the date of submission of the copy of this order to the appointing/disciplinary authority.
It is expected that the petitioner shall co-operate in the departmental proceeding. If for the petitioner, the departmental proceeding is delayed, the respondents shall have the liberty to approach this Court for extension of time but for any lapse attributable to the respondents, the time will not be extended considering the very special circumstances of this case.
25. A copy of this order be supplied to Mr. N. Majumder, learned counsel for the respondents for sending the same to the disciplinary authority.
26. Needless to say that regarding the pay and allowances of the petitioner, the disciplinary authority will decide on conclusion of the departmental proceeding.
No costs.
JUDGE Nihar WP(C) NO.738 OF 2016 Page 13 of 13