Madhya Pradesh High Court
Union Of India (Uoi) And Ors. vs V.K. Girdonia And Anr. on 18 July, 2002
Equivalent citations: [2003(96)FLR382], 2002(4)MPHT418
ORDER Bhawani Singh, C.J.
1. Through this writ petition under Articles 226/227 of the Constitution of India, the petitioners have challenged the order of the Central Administrative Tribunal, Jabalpur Bench, (CAT), dated February 15, 2002, passed in O.A. No. 236/1997, whereby the order of dismissal of the respondent No. 1 ('respondent' hereafter) dated June 25, 1996, is quashed and the petitioners have been directed to disburse 50% of wages to respondent from May 31, 1984, till the date of his reinstatement in service, apart from granting him notional seniority in the grade with reference to his immediate senior and other benefits like promotion etc.
2. Shortly stated, the respondent was Extra Departmental Branch Post Master ('EDBPM'). The departmental enquiry was initiated against him, which resulted in his termination by order dated 25-6-1996. The grievance of the respondent has been that he was not paid subsistence allowance during put-off duty period, before his services were terminated and that despite acquittal by the Criminal Court in respect of same set of charges, departmental enquiry could not be initiated, therefore, penalty of removal from service could not be imposed. With this grievance, respondent came before the CAT seeking reliefs, which have been allowed. The respondent states that he was kept under put-off duty from 31-5-1984. The departmental proceedings initiated against him had ended with his removal from service. The criminal case before the Additional Chief Judicial Magistrate, Jabalpur, had gone in favour of the respondent on technical ground. It was not an honourable acquittal, therefore, the departmental proceedings were pursued and the punishment imposed on him. Action taken against the respondent could not be faulted and the impugned order did not call for interference.
3. The CAT examined two questions, namely, the respondent (applicant in O.A. No. 236/97) was not paid subsistence allowance when he was kept under put-off duty and when the Criminal Court had acquitted him on charges, which formed part and parcel of the disciplinary proceeding against him, the departmental proceedings should have been initiated against him. Consequently, the respondent contended that the departmental proceedings were nullity. Submission is that put-off duty period should be treated suspension, therefore, calling upon the respondent to attend the enquiry, without payment of subsistence allowance, would amount to denial of reasonable opportunity. After acquittal by the Criminal Court, initiation of departmental enquiry should stand obviated, in the light of decision of the Apex Court in the case of Sulekh Chand & Salek Chand v. Commissioner of Police and Ors. [(1994) Suppl. 3 SCC 674]. The CAT found that the admitted position is that respondent was kept under put-off duty from 31-5-1984 till he was removed from service by order dated 25-6-1996, but he was not paid subsistence allowance during the continuance of departmental proceedings, therefore, the entire proceedings were vitiated, as per decision of the Apex Court in the case of Capt. M. Paul Anthony v. Bharat Gold Mines Ltd. and Anr. [(1999) 3 SCC 679].
4. With regard to other question CAT holds that the Criminal Court verdict goes in favour of the respondent. He is sought to be charged in departmental proceedings on the same set of charges, therefore, it could not be pleaded that the respondent No. 1 was acquitted on technical ground by the Criminal Court. In para 9 of the order, the CAT has held:--
"9. We further would like to observe that this is a pitiable case where the applicant even after acquittal by the Competent Court which fact was also known to the department, had chosen to dismiss the applicant from service. This action of the respondents is deprecated and as a model employer they ought to have come forward to reinstate the applicant back in sendee soon after the verdict of the Criminal Court when the charges are one and the same both before the departmental proceedings and in the criminal trial. Under such circumstances, we have no hesitation to hold that the entire action of the respondents bristled with illegalities, apart from being arbitrary and therefore cannot be sustained. We further would like to observe that since the impugned order is held to be illegal, we hold that the applicant is entitled for the benefit of 50% of the wages right from the date of put-off duty (i.e., from 31-5-1984) till he is reinstated back in service."
5. Shri P.C. Paliwal, learned Counsel appearing for the petitioners, contends that CAT committed serious error while deciding the two questions, which fell for consideration before it. The respondent was kept under put-off duty and he participated in the enquiry at Jabalpur, from time to time, without ever complaining that due to non-payment of subsistence allowance he could not defend himself, since he could not meet the expenses from the place of duty to the place of enquiry. Therefore, holding that the departmental enquiry stood vitiated on this count, is not sustainable. We find force in this submission. Assuming, put-off duty means suspension, since the respondent was not discharging duty, non-payment of subsistence allowance was neither claimed by him nor did he ever raise grievance that he could not participate the enquiry for lack of funds. Always, he had been attending departmental enquiry which was being held at Jabalpur. Therefore, it cannot be assumed that due to non-payment of subsistence allowance, he was prejudiced in defending himself in the departmental enquiry. There it, no whisper or any application or protest by the respondent making claim for put off duty/suspension allowance at a stage of enquiry. Therefore, holding that the enquiry was vitiated due to non-payment of subsistence allowance, is clearly unsustainable.
6. The next question is whether the petitioners could initiate the departmental enquiry against the respondent, after order of the Criminal Court dated 22-5-1990 passed in Criminal Case No. 2398/89. At the very outset, it would be appropriate to record that throughout the parties were maintaining that the accused has been acquitted by the Trial Court. As a matter of fact, the order of Trial Court states that he has been discharged.
7. Shri P.C. Paliwal submits that the order of acquittal by the Criminal Court does not bar holding the departmental enquiry. Reliance is placed on the Apex Court decision in the case of Corporation of City of Nagpur and Anr. v. Ramchandra G. Modak and Ors. (AIR 1984 SC 626), in which it is held in para 6 that:--
''6. The other question that remains is if the respondents are acquitted in the criminal case whether or not the departmental inquiry pending against the respondents would have to continue. This is a matter which is to be decided by the department after considering the nature of the findings given by the Criminal Court. Normally, where the accused is acquitted honourably and completely exonerated of the charges, it would not be expedient to continue a departmental inquiry on the very same charges or grounds or evidence, but the fact remains, however, that merely because of the accused is acquitted, the power of the authority concerned to continue the departmental inquiry is not taken away nor is its direction (discretion) in any way fettered. However, as quite some time has elapsed since the departmental inquiry had started the authority concerned will take into consideration this factor in coming to the conclusion if it is really worthwhile to continue the departmental inquiry in the event of the acquittal of the respondents. If, however, the authority feels that there is sufficient evidence and good grounds to proceed with the inquiry, it can certainly do so. In case the respondents are acquitted, we direct that the order of suspension shall be revoked and the respondents will be reinstated and allowed full salary thereafter even though the authority chooses to proceed with the inquiry, Mr. Sanghi states that if it is decided to continue the inquiry, as only arguments have to be heard and orders to be passed, he will see that the inquiry is concluded within two months from the date of the decision of the Criminal Court. If the respondents are convicted, then the legal consequences under the rules will automatically follow."
Shri P.C. Paliwal submits that when enquiry can be initiated in a case of acquittal by Criminal Court, there is no bar for doing so in a case where accused has been discharged by the Criminal Court. Perusal of this decision demonstrates that while deciding to hold/continue the departmental enquiry, the department has to consider the nature of evidence and nature of finding of the Criminal Court. In case, where the accused is acquitted honourably and completely exonerated on the charges, it may not be expedient to continue the departmental enquiry on the very same charges or grounds or evidence. However, merely because, the accused has been acquitted, power of competent authority is not taken away nor is discretion unfettered, however, while deciding to hold/continue enquiry, it has to see time gap, factum of acquittal, existence of sufficient evidence and good grounds otherwise holding/continuing the disciplinary proceedings on the same set of charges and same kind of evidence would be an exercise in futility.
8. The criminal case against the respondent before the Additional Chief Judicial Magistrate, Jabalpur, was that while posted as EDBPM, Sahajpuri Branch Office under Bargi Nagar Sub-Post Office between 14-11-1968 to 30-5-1984, he opened 91 fictitious accounts from different depositors to the tune of Rs. 40,34,553/- and showed disbursement of Rs. 40,34,051 A on 2-4-1983 thereby sought commission of Rs. 72,288.84 paise, thus committed offences under Sections 408, 420, 467, 468 and 473/34, IPC. The Criminal Court, on the basis of material placed before it, found that allegations were groundless, therefore, there was no ground to proceed further against the accused and discharged him. The Criminal Court found that the account opening forms and withdrawal forms were produced and it could not be found that they were fake documents or fabricated by the accused. It also found no evidence of conspiracy between the accused and the depositors nor was there any evidence suggesting fabrication by the accused, rather, the accused had sent telegram requisitioning the vehicle for carrying the amount to Jabalpur from Branch Post Office, where the accounts were maintained,
9. Let us examine whether this charge has been proved in the departmental enquiry. Perusal of the enquiry report discloses that the prosecution witness Shri S.S. Tiwari has stated that on 31-3-1983, 2-4-1983 and 4-4-1983, he was on leave, therefore, he had no knowledge about opening of 91 fictitious accounts for Rs. 40,34,553/- and disbursement of Rs. 40,34,051/-from the accounts on 2-4-1983 nor he could not prove the same. Shri D.D. Parihar states that pass-books recording receipt of amounts, had not been sent to the Head Office for recording of interest. These pass-books were not sent because the claimants were not entitled to interest, since deposit period was very short. Further, Shri Kherkar states that he visited Sahajpuri Branch Post Office on 20-4-1983 and contacted 4-5 depositors, but did not remember their particulars. He could not look into the matter further since he was transferred. The defence witness Shri Narayan Sahajpuri, Sahajpur (Bargi), states that when he visited the Branch Post Office on 30-3-1983, 25-30 persons were present for opening new accounts. He introduced the depositors to Shri Kherkar and Shri Kherkar recorded their statements. They stated that they deposited the money and withdrew the same. Though in cross-examination, he states that only five persons were introduced to Kherkar, but their names he did not remember, though they were residents of the said village.
10. The Enquiry Officer holds the first charge proved because the respondent failed to produce the oral or documentary evidence in rebuttal. The same is the finding with respect to other charges.
11. The question for determination is whether there is evidence to continue the enquiry against the respondent despite order of discharge recorded by Trial Court after taking into consideration the documents produced in this case particularly Account No. 1330312 of Smt. Rukmani Namdeo, in which this depositor deposited the amount and also filed an application seeking withdrawal of amount. Another Account No. is 13205595 of Sheikhmal with application for withdrawal.
12. With the above submissions, Shri Sujoy Paul Submits that for construction of Hydro Power Project in 1983-84, the lands of residents of Bargi Village, where the Post Office is located, were acquired. During the period when the account was opened, land owners had been paid huge amounts of compensation for acquisition of their lands, therefore, they were depositing and withdrawing the amounts, submission exemplified by two account holders mentioned by the Additional Chief Judicial Magistrate. There is no dispute that these accounts find mention in the ledger book of the Post Office, which is taken into consideration by the Criminal Court, but not produced before the Enquiry Officer. There is evidence suggesting depositors coming to the Post Office for making deposits. There is no evidence that these are fictitious entries and withdrawals. With this evidence, it could not be said that the charge against the respondent is proved. Rather, from the submission of the prosecution witnesses, charge has not been proved and there is no evidence connecting the accused with the charges levelled against him. The finding of the enquiry officer that the respondent failed to prove the charges, is completely erroneous, Shri Sujoy Paul contends and places reliance on the Apex Court in the case of Anil Kumar v. Presiding Office and Ors. [(1985) 3 SCC 378]. The Apex Court in paras 5 and 6 has said that:--
"5. We have extracted the charges framed against the appellant. We have also pointed out in clear terms the report of the enquiry officer. It is well settled that a disciplinary enquiry has to be a quasi-judicial enquiry held according to the principles of natural justice and enquiry officer has a duty to act judicially. The enquiry officer did not apply his mind to the evidence. Save setting out the names of the witnesses, he did not discuss the evidence. He merely recorded his ipse dixit that the charges are proved. He did not assign a single reason why the evidence produced by the appellant did not appeal to him or was considered not credit-worthy. He did not permit a peep into his mind as to why the evidence produced by the management appealed to him in preference to the evidence produced by the appellant. An enquiry report in a quasi-judicial enquiry must show the reasons for the conclusion. It cannot be an ipse dixit of the enquiry officer. It has to be a speaking order in the sense that the conclusion is supported by reasons. This is too well settled to be supported by a precedent. In Madhya Pradesh Industries Ltd. v. Union of India, this Court observed that a speaking order will at best be a reasonable and at its worst be at least a plausible one. The public should not be deprived of this only safeguard. Similarly in Mahabir Prasad Santosh Kumar v. State of U.P., this Court reiterated that satisfactory decision of a disputed claim may be reached only if it be supported by the most cogent reasons that appealed to the authority. It should all the more be so where the quasi-judicial enquiry may result in deprivation of livelihood or attach a stigma to the character. In this case, the enquiry report is an order-sheet which merely produces the stage through which the enquiry passed. It clearly disclosed a total non-application of mind and it is this report on which the General Manager acted in terminating the service of the appellant. There could not have been a more gross case of non-application of mind and it is such an enquiry which has found favour with the Labour Court and the High Court."
"6. Where a disciplinary enquiry affects the livelihood and is likely to cast a stigma and it has to be in accordance with the principles of natural justice, the minimum expectation is that the report must be a reasoned one. The Court then may not enter into the adequacy or sufficiency, of evidence. But, where the evidence is annexed to an order-sheet and no corelation is established between the two showing application of mind, we are constrained to observe that it is not an enquiry report at all. Therefore, there was no enquiry in this case worth the name and the order of termination based on such proceeding disclosing non-application of mind would be unsustainable."
In Capt. M. Paul Anthony's case (supra), the Apex Court in para 35 has said that :--
"35. Since the facts and the evidence in both the proceedings, namely, the departmental proceedings and the criminal case were the same without there being any lots of difference, the distinction, which is usually drawn as between the departmental proceedings and the criminal case on the basis of approach and burden of proof, would not be applicable to the instant case."
13. With regard to charge that despite deposit worth lacs with the Post Office, the respondent sought sanction for Rs. 670/- from the Head Office, there is no evidence to suggest that the accused sought sanction of this amount without any justification. Shri Sujoy Paul, Counsel appearing for respondent, states that this was normal transaction and it can be sought when deposits do not match with the requisitions of withdrawals. From the above narration, it is crystal clear that the departmental enquiry hinges on the same charge and the evidence on which the criminal prosecution was launched and respondent discharged. Therefore, the department should not have initiated/continued the departmental enquiry against the respondent. Even otherwise, findings recorded by the Enquiry Officer are irrelevant. It may be true that nature of evidence for proving the criminal charge is higher as compared to departmental enquiry, but it cannot be forgotten that there must be some evidence to prove the charge. It appears that the department got suspicious against the respondent on account of withdrawal of deposits in two days and realisation of commission. The Apex Court in Union of India v. B.C. Goyal (AIR 1964 SC 364) in para 27, has held that :--
"27. Now, in this state of the evidence, how can be said that the respondent even attempted to offer a bribe to Mr. Rajagopalan. Mr. Rajagopalan makes a definite statement that the respondent did not offer him a bribe. He merely refers to the fact that the respondent took out a paper from his wallet and the said paper appeared to him like a hundred rupee note double folded. Undoubtedly, Mr. Rajagopalan suspected the respondent's conduct, and so, made a report immediately. But the suspicion entertained by Mr. Rajagopalan cannot, in law, be treated as evidence against the respondent even though there is no doubt that Mr. Rajagopalan is a straight forward and an honest officer. Though we fully appreciate the anxiety of the appellant to root out corruption from public service, we cannot ignore the fact that in carrying out the said purpose, were suspicion should not been allowed to take the place of proof even in domestic enquiries. It may be that the technical rules which govern criminal trials in Courts may not necessarily apply to disciplinary proceedings, but nevertheless, the principle that in punishing the guilty scrupulous care must be taken to see that the innocent are not punished, applies as much to regular criminal trials as to disciplinary enquiries held under the statutory rules. We have very carefully considered the evidence led in the present enquiry and borne in mind the plea made by the learned Attorney General, but we are unable to hold that on the record, there is any evidence which can sustain the finding of the appellant that charge No. 3 has been proved against the respondent. It is in this connection and only incidentally that it may be relevant to add that the UPSC considered the matter twice and came to the firm decision that the main charge against the respondent had not been established."
Worthwhile, it is to mention that the department failed even to find out the deposit holders, with a view to know whether they had really opened accounts with the Post Office and withdrew the amounts within two days though they belonged to the village where the Post Office is located. Best evidence is not gathered though available. Whatever evidence is produced during the enquiry shows that the deposit holders opened accounts and they withdrew the money deposited by them. The accounts, which are subject-matter of enquiry, had not been closed and during the enquiry, they continued and were not closed at any stage. With this background, there is no evidence to hold that the respondent is guilty of the charges levelled against him. In absence of evidence, the order of removal from service cannot be sustained.
14. Consequently, we find no merit in this petition and the same is dismissed. Costs on parties.