Central Administrative Tribunal - Cuttack
S C Sethi vs D/O Post on 25 August, 2022
OA NO. 876/2016
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CENTRAL ADMINISTRATIVE TRIBUNAL
CUTTACK BENCH
No. OA 876 of 2016
Present: Hon'ble Mr. Devendra Chaudhry, Administrative Member
Hon'ble Mr. Swarup Kumar Mishra, Judicial Member
Sri Suresh Chandra Sethi, aged about 55 years, S/o
Late Nakul Sethi, EX-EDDA, Jagannath Prasad, SO Dist
Ganjam, presently residing in Vill Paikasahi, Jagannath
Prasad, PS Baguda, Dist Ganjam 761121
.....Applicant
versus
1. Union of India represented through its Director
General of Posts, Ministry of Communication,
Department of Posts, Dak Bhawan, New Delhi -
110001.
2. The Chief Postmaster General, Orissa Circle,
Bhubaneswar, Dist Khurda.
3. Postmaster General, Berhampur Region, Berhampur
Ganjam.
4. Superintendent of Post Offices, Aska Division, Aska
761100.
5. Asst. Superintendent of Post Office, Bhanjanagar Sub
Division, Bhanjanagar 761126.
6. Sub Divisional Inspector (Postal), Bhanjanagar, Sub
Division, Bhanja Nagar 761126.
.....Respondnets.
For the applicant : Mr. D.K.Mohanty, counsel
For the respondents: Mr. P.K.Ray, counsel
Heard & reserved on : 28.7.2022 Order on : 25.08.2022
O R D E R
Per Mr.Swarup Kumar Mishra, J.M. OA NO. 876/2016 2 The applicant has filed the present OA under Section 19 of the Administrative Tribunals' Act, 1985 seeking the following reliefs :
'(i) To quash the charge sheet under Annexure-A/2, IO report under Annexure A/3, order dt. 28.5.2001 under Annexure A/5, order dated 25.2.2015 under Annexure A/9 and order dt. 5/6.4.2016 under Annexure A/12.
(ii) To direct the respondents to allow the applicant to join his duty w.e.f. 27.11.2014 when the acquittal order was passed with all service and financial retrospectively.
(iii) To pass any other order/orders as deemed fit and proper;
(iv) To allow this OA with costs.
2. The brief facts of the case are that the applicant was appointed as EDDA w.e.f. 5.12.1980 by the respondent No.6. On 13.6.1999 the applicant was placed on put off duty by respondent No.5, who was not the appointing authority, on the allegation of misappropriation of money. On 1.9.1999 charge sheet was issued against the applicant with Article of charges under Rule 8 of the EDA's (Conduct & Service) Rules, 1964 which read as follows :
Article-1 Sri Suresh Chandra Sethi while working as EDDA of Jagannath Prasad post office during the period from 6.12.1998 to 12.6.1999 on 30.12.1998 received four money orders with cash Rs.7,000/- (Rupees Seven thousand only) from SPM, Jagannath Prasad, New Colony money order No. 4253, dt. 15.12.1998 Rs.2000/- only one among them, which was payable to Sri Govinda Gouda of Village Chapra. Sri Sethi shown the money order as paid to payee by forging the signature of payee and did away the amount dishonestly without payment to payee on some day i.e. on 30.12.1998 and acted in contravention of rule-259 and 265 of postal manual Vol-VI.OA NO. 876/2016
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Thereby Sri Suresh Chandra Sethi had failed to maintain absolute integrity and devotion to duty as rendered under Rule-17 of ED Agents (Conduct & Service) Rules-1964 & within a manner which is unbecoming of a good servant.
Article-II One said Sri Suresh Chandra Sethi while working in the aforesaid post during the aforesaid period received Vijaypur money No. 84 dated 18.1.1999 for Rs.2000/- (Rupees two thousand only) payable to Dhobuni Gouda of Village Chapra on 1.2.1999 along with other seven money orders and Rs.7000/- (Rupees seven thousand only) for payment without paying the amount to payee Sri Sethi shown forged the signature of Dhobuni Gouda did away the amount dishonestly Sri Sethi had acted in contravention of rule-259 and 265 of postal manual Vol-VI.
Allegation of misappropriation of money by forging the signature of payee is the charge leveled against the applicant ithout any basis or providing the same, unless the forging. In the signature is proved the question of misappropriation does not arise. This charge sheet was also issued by Respondent No.5 who is not the appointing authority of the applicant.
Thereby Sri Suresh Chandra Sethi had failed to maintain absolute integrity and devotion to duty as rendered under Rule-17 of ED Agents (Conduct & Service) Rules-1964 & Within a manner which is unbecoming of a good servant."
Inquiry officer and Presenting Officer were appointed on 11.9.1999 but respondent No.5 lodged an FIR on the self same misappropriation of money by way of forging signature of four payees on 26.1.2001. While the criminal proceeding was going on the Inquiry Officer concluded his enquiry on 9.4.2001 and submitted his report stating that charge of both the articles against the applicant was proved. On 28.5.2001, respondent No.5 issued the order of punishment of removal from service in favour of the applicant. On 27.11.2014 the applicant was acquitted from the said charges and from 5.1.2015 to 21.2.2015, the applicant OA NO. 876/2016 4 made representations for his reinstatement into service. Respondent No.4 rejected the representation stating that reinstatement into service by the applicant is not tenable after finalization of the departmental proceeding. On 8.3.2015 the applicant made representation before respondent No.3 for his reinstatement. Respondent No.3 only confirmed the order of respondent No.4 by order dated 5/6.4.2016 stating that since in both the proceedings similar charge was taken, the order of the criminal proceeding is binding on the disciplinary proceeding. Hence the applicant in the present OA has challenged the charge sheet dated 1.9.1999 (Annexure A/2), Inquiry Report dated 9.5.2011 (Ann4exure A/3), order dated 28.5.2001 (Annexure A/5), order dated 25.2.2015 (Annexure A/9) and order dated 5/6.4.2016 (Annexure A/12) being illegal, arbitrary, malafide and non-application of mind of the respondent authorities and are not sustainable in the eye of law.
3. The respondents is their counter have stated that the applicant cannot be reinstated in service automatically on the ground that he has been acquitted of the criminal charges by the Hon'ble Court of SDJM as he has been found guilty in the departmental proceedings. It is stated that since on inquiry, cases OA NO. 876/2016 5 of misappropriation of money was found to be done by the applicant, he was put under put of duty. It is also submitted that as misappropriation of government money was involved, respondent No.5 being the appointing and disciplinary authority was bound to lodge FIR on the matter. It is further stated that there is no bar in law for initiation of simultaneous criminal and department proceedings on the same set of allegations. Moreover, the averment made by the applicant that he did not prefer an appeal against the order of removal from service as criminal proceeding was going on, is not acceptable since as per orders of DOPT and judgment of Hon'ble Supreme Court in State of Rajasthan -vs- B.K.Meena & Os. [(1996) 6 CC 417], departmental proceeding and criminal proceeding can be held simultaneously. The applicant who was found guilty in the departmental proceeding was removed from service by the disciplinary authority. The appellate authority did not find any merit in the appeal preferred by the applicant against the order of removal and vide his letter dated 25.2.2015 did not interfere with the order of disciplinary authority. As the applicant filed representation against the order of the appellate authority rejecting his appeal, the respondent No.3 vide order dated 5/6.4.2016 in a detailed OA NO. 876/2016 6 order rejected the appeal of the applicant since he was conclusively proved guilty in the departmental proceedings and his integrity was found to be doubtful. Therefore the respondents have prayed for dismissal of the present OA being devoid of any merit.
4. The applicant has filed rejoinder reiterating the same facts as stated in the OA.
5. Learned counsel for the applicant relied on few citations including the following:
a) Hon'ble Apex Court in P V Srinivasa Sastry Vs. Comptroller Auditor General and others (1993) (1) SCC 419.
b) Hon'ble Ape Court in Dipankar Sengputa and another vers United Bank of India and others 1999 (1) LLJ 208.
c) Hon'ble High Court of Orissa in case of Sailendra Nath Mohanty v Union of India 204 (I) ILR CUT 1070
13. Learned counsel for the respondents relied on few citations including the following:
a) Hon'ble Apex Court in Ajit Kumar Nag vrs GM (PJ), Indian Oil Corporation Ltd (2005) 7 SSC 764
b) Hon'ble Apex Court in Civil Appeal No. 10729/2013 arising out of SLP (Civil) No. 29808 of 2010.
c) Hon'ble Apex Court in State of Rajasthan vs B. K Meena & Others (1196) 6 SCC 417
7. The gist of two article of charges against the applicant is that he forged the signature of Sri Gobinda Gouda & Dhobuni Gouda and did away with amount. Even though both Gobinda Gounda & Dhobuni Gouda during the inquiry admitted to have received the amount and put their signature, the IO came to conclusion that OA NO. 876/2016 7 article of charges were proved against the applicant because both of them being illiterate were putting their LTI, therefore the signature could not be theirs. The whole arrival at such conclusion is purely preposterous based on assumption and presumption. A person can be giving his LTI but basic knowledge of writing his name and signature does not confer literacy but is part of adult education. A person can attain such scope within a few months. When the persons who were alleged to be wronged by way of forgery committed by the applicant themselves deny it, we are not convinced how the charges got proved.
8. In the criminal case instituted against the applicant on self same charges, the same witnesses were also examined and Learned Court of Sub Divisional Judicial Magistrate, Bhanjanagar vide its order dated 27.11.2014 held as follows;
On the scrutiny of evidence, it is clearly established that there is no evidence against the accused Suresh Ch. Sethi regarding the misappropriation of money order amount and forgery of money order as all the payee that is PW 1, 2, 3 & 4 did not utter a single word against the accused regarding the misappropriation of money order amount. Besides, in order to prove the CS U/s 409/468/471 IPC the LTI and signature of the accused on payee have not been send for the opinion of hand written expert. Hence, considering the above evidence on record, I find that there is no sufficient material to hold the accused has committed offence U/s 409/468/471 IPC. PW 12, in his cross examination specifically admitted that he was maintaining MO III - Ect II and deposed that the accused received money order on 28.01.99 and made payment to the concerned payee on 1.02.99 and due to the absent of payee he could not deliver. It further reveals that the MO No. 4253 was paid to the payee on 30.12.98 and MO No. 2003 has been paid and ine very working day accused has OA NO. 876/2016 8 taken the money and returned the same to the post master due to the absence of payee. He further deposed that MO No. 1752 and 1753 has been paid to the payee on 24.02.99.
In order to prove a case U/sec 409 of IPC it must be established by the prosecution that the factum of entrustment and the factum of misappropriation of the entrusted money. Though it is admitted fact that the money order was entrusted to the accused, but there is no proof of misappropriation of money order amount as all the payees in their evidence deposed that they had received the amount and did not complain that the accused had misappropriated the money order amount.
Hence on consideration of the above facts & circumstances of this case and the evidence on record, it is cleared that the prosecution has miserably failed to bring home the offences U/s 409/468/471 IPC against the accused persons beyond all reasonable doubt. Hence, the accuses is entitled to an order of acquittal.
In the result, I, therefore , hold the accused person not guilty of the offences U/s 409/468/471 IPC and acquit them U/s 248 (1) Cr. PC. He be discharged from their bail bonds and set at liberty forthwith."
9. Hon'ble Apex Court in G.M. Tank v. State of Gujarat and Ors (2006) 5 SCC 446 had held:
The same witnesses were examined in the criminal case and the criminal Court on the examination came to the conclusion that the prosecution has not proved the guilt alleged against the appellant beyond any reasonable doubt and acquitted the appellant by its judicial pronouncement with the finding that the charge has not been proved. It is also to be noticed that the judicial pronouncement was made and after a regular trial and on hot contest. Under these circumstances, it would be unjust and unfair and rather oppressive to allow the findings recorded in the departmental proceedings to stand.
10. This Tribunal is aware that acquittal simplicitor and/or acquittal ipso facto will not cause any restrain of initiation of a departmental proceeding on the identical facts with identical witnesses. There is no doubt that departmental proceeding and OA NO. 876/2016 9 criminal proceeding both are not identical in nature, when one proceeding, namely, criminal proceeding is for the purpose of identification of the commission of an offence under the penal law, whereas another proceeding, departmental proceeding, is for the identification of the conduct in terms of the misconduct of the Service Regulation. This Tribunal is also aware that in criminal proceeding strict proof is the rule of law following the Evidence Act, whereas, in departmental proceeding only the "preponderance of probability" would be suffice to identify the misconduct.
11. Despite all if in a criminal proceeding where on the identical facts and witnesses there is an acquittal on merit disbelieving the prosecution story, whether it, would be just, proper and reasonable to allow the departmental proceeding on the identical facts and witnesses to have an otherwise conclusion on giving a chance to reach a different finding than the findings reached by the competent Criminal Court. The answer came out in the G.M. Tank (supra) in paragraph 31, which reads such:
In our opinion, such facts and evidence in the departmental as well as criminal proceedings were the same without there being any iota of difference, the appellant should succeed. The distinction which is usually proved between the departmental and criminal proceedings on the basis of the approach and burden of proof would not be applicable in the instant case. Though the finding recorded in the domestic enquiry was found to be valid by the Courts below, when there was an honourable acquittal of the employee during the pendency of the proceedings challenging the dismissal, the same requires to be taken OA NO. 876/2016 10 note of and the decision in Paul Anthony case will apply. We, therefore, hold that the appeal filed by the appellant deserves to be allowed.
12. When in a criminal proceeding with identical facts and witnesses produced and examined, on merit any adjudication is made holding that the prosecution case could not be believed and thereby there is an acquittal, no departmental proceeding on identical facts and with identical witnesses could be initiated as the same would allow the Enquiring Authority and also the Disciplinary Authority a scope to reach a different finding than the findings reached by the competent Criminal Court of law on the basis of the evidence on records, namely, deposition of the witnesses who are identical in both the proceedings and the same would cause a severe jolt in the justice delivery system itself as a Disciplinary Authority is being allowed to sit as an Appellate Authority over the Judgment and findings of a competent Criminal Court by scanning the evidence and materials adduced by the prosecution witnesses who are the witnesses of the disciplinary proceeding. It may cause a serious consequence on the jurisprudential concept of superior position of the judiciary and its power, dignity and majesty thereof.
13. In the instant case also though the applicant was not just acquitted in the criminal case on technical grounds but based on OA NO. 876/2016 11 examination of evidences/witnesses. The self same evidences/witnesses were also part of the inquiry where also the witnesses took the same stand as they did in the criminal proceeding. When the charges are proved by the IO not based on evidences or materials on records, that can be well termed as a case of no evidence. Preponderance of probability too has to stand on solid ground of having some evidence to back it. Without evidence or evidence contrary to it, preponderance of probability wont be the sole ground for proving the charges or imposition of punishment. The citations relied upon by learned counsel for the respondents are not applicable to the facts and circumstances of the case.
14. In view of the discussion above and settled position of law and as also the fact that the IO based his Inquiry Report on no evidence, this Tribunal is of the view that the impugned punishment order dated 25.02.2015 (Annexure A/9) & 5/6.04.2016 (Annexure A/12) is bad in law and accordingly quashed and set aside. Consequently the respondents are directed to allow the applicant to join his duty w.e.f. 27.11.2014 the date when he was acquitted by Learned Court of Sub OA NO. 876/2016 12 Divisional Judicial Magistrate, Bhanjanagar in the criminal case, with all service and financial benefits.
15. The OA is allowed but in the circumstances without any order to cost.
(SWARUP KUMAR MISHRA) (DEVENDRA CHAUDHRY) MEMBER (J) MEMBER (A) (csk)