| SooperKanoon Citation | sooperkanoon.com/54729 |
| Court | Central Administrative Tribunal CAT Mumbai |
| Decided On | Jan-11-2006 |
| Judge | D A Rama, J Singh |
| Reported in | (2007)(2)SLJ273CAT |
| Appellant | Balkrishna Gonduji Gawai |
| Respondent | Union of India (Uoi) and ors. |
He has, thus, sought quashing of the charge-sheet dated 1.7.1999, the punishment order dated 18.1.2002, the appellate order dated 19.7.2002 and the revision order dated 10.2.2004. he has also prayed for setting aside the whole enquiry and the disciplinary proceedings on the ground that the same are vitiated due to non-observance of the principles of natural justice.
2. The facts in nutshell, as submitted by the applicant, are that he entered the Postal Department as Postal Assistant on 22.2.1983. While working as Postal Assistant at Kranti Chowk Post Office, Aurangabad, the applicant was issued a major penalty charge-sheet dated 1.7.1999 under Rule 14 of CCS (CCA) Rules, 1965. The applicant submitted his reply to the said charge-sheet on 16.7.1999 denying the charge levelled against him. Consequently, one Mr. N.P. Shinde, Assistant Superintendent of Post Office was appointed as Enquiry Officer. The inquiry was conducted on various dates and the applicant duly participated on 21.06.2001, 27.7.2001, 30.8.2001, 10.9.2001, 12.10.2001. However, on 2.11.2001, 7.11.2001 and 12.1.2001 he did not attend the enquiry on one ground or the other. The applicant has no grievance against the proceedings which took place before 2.11.2001.
His first grievance in the O. A. is that the Enquiry Officer did not adjourn the inquiry proceedings on 2nd November, 2001 and that he proceeded ex parte despite the applicant having already submitted medical certificate on 30th October, 2001, for seven days medical leave. The applicant has further submitted that on 7th November, he however, appeared before the Inquiry Officer and made a representation for the change of Inquiry Officer. The Inquiry was, further continued on 12.11.2001 and it was completed on that date. Subsequently, the I.O.submitted the enquiry report on 5.12.2005, holding the applicant guilty of the charge levelled against him in the charge sheet dated 1.7.1999.
3. It is a matter of record that the applicant did not participate in the Inquiry on 7.11.2001 and 12.11.2001 and also did not ask the Inquiry Officer to recall his ex parte order or grant an opportunity to the applicant to cross examine the witnesses etc. despite having attended the same on 7.11.2001. On the contrary he chose, on his own, not to participate in the inquiry and simply insisted on the change of I.O.The applicant was given opportunity to represent against the Inquiry Report on 6th December, 2001 and the applicant made a detailed representation on 31.12.2001. This representation against the inquiry report was rejected by the Disciplinary Authority and order dated 18.1.2002 was passed dismissing the applicant from the service with immediate effect. The applicant filed an appeal dated 5.3.2002 against the punishment in question which was dismissed by the Appellate Authority vide its order dated 19.7.2002. The applicant further filed a revision petition dated 24.12.2002 which was decided on 10.2.2004.
The applicant, firstly, contends that by not adjourning the inquiry on 2nd November and onwards on the ground of medical certificate, the Inquiry Officer has caused great prejudice to the applicant and has, thus, violated the principles of natural justice. According to the applicant this shows that the I.O. was biased against the applicant.
The second contention of the applicant is that the whole inquiry disciplinary proceedings are vitiated inasmuch as the criminal Court on the same charges has acquitted the applicant of the charges. Therefore, there was no use in continuing with the departmental proceedings and the same are vitiated.
4. Mr. V.S. Masurkar, learned Counsel appearing on behalf of the respondents, on the other hand, has strenuously argued that this is a case in which the Inquiry Officer in a Departmental Enquiry has held the charges proved against the applicant beyond doubt but the learned Trial Court in Criminal Proceedings has given him the benefit of doubt.
The learned Counsel for the respondents contended that the charges in the departmental enquiry as well as in the trial Court were different the charge-sheet in question contained the charges of mis conduct for violation of departmental rules and that of CCS (CCA) Rules whereas the Criminal Court, proceeded against the accused, the applicant herein, for charges under the Indian Penal Code. There was no honourable acquittal by the Trial Court hence the judgment in the case of Paul Anthony as well as Tank's case were not applicable in the facts and circumstances of the present case. In this connection, the learned Counsel for the respondents further pointed out that this issue was never raised by the applicant before the Disciplinary Authority.
According to him, this argument of the applicant is an after thought and hence untenable in the eyes of law.
He has further argued that the applicant was present on 2nd November, 2001 in the office. In support of his contention he has produced the Attendance Register and also the same has been perused by us. Not only this, the applicant was also present on 1.11.2001 in the office and he attended a meeting with Chief Post Master General, Mumbai in the office of Post Master General at Aurangabad, despite having submitted a Medical Certificate. Similarly, the applicant appeared on 7.11.2001 before the Enquiry Officer, but he did not ask for the cross examination of the witnesses etc. or for recalling the ex parte order against him and on the contrary, the simply pressed for change of the Enquiry Officer on the ground of bias. This is, according to Shri Masurkar, patently wrong approach on the part of the applicant as he should have objected to the Inquiry Officer's continuance at the very first available stage, in case, according to the applicant, the I.O.was biased against him.
Mr. Masurkar also submitted that the applicant had already undergone at least six punishments viz. (1) Withholding of his one increment for a period of one year awarded by SSPOs Aurangabad vide his memo dated 30.6.1986 for non maintaining the office decorum at Aurangabad Cannot by using unparliamentary words to his supervisor and co-workers (2).
Withholding of one increment for a period of one year without cumulative effect in the scale of pay of Rs. 972-25-1150-EB-30-1660 awarded by SSPOs Aurangabad vide memo dated 30.6.1988 for alleged adverse criticism against Department of post by publishing news item in newspaper and (3) Reduction of his pay to the minimum in the time scale of pay of Rs. 975-25-1150-EB-1180-1660 for a period of five years w.e.f. 1.2.1994 for fraudulent encashment of IPOs of Rs. 226 at Marathwada Vidyapith post office on 6.11.1990 which were actually purchased by Dr. Smt. Asmat Fetema, Mukhtar, Asmat Nursing Home, Fazilpura, Aurangabad.
5. We have heard and considered the arguments adduced by the learned Counsel for the parties and also perused the records produced by the respondents. It is necessary to appreciate the charges as contained in the charge-sheet dated 1.7.1999 issued to the applicant under the Rule 14 of CCS (CCA) Rules, 1965 and the charges/issues before the learned Trial Court. The following charge was levelled against him in the charge-sheet in the D.E.: That the said Shri B .G. Gawai while working as Postal Assistant at Kranti Chowk P.O. Counter Aurangabad during the period from 24.5.1999 knowingly: (1) Sold 27 (twenty seven) fake fictitious postage stamps of Rs. 20 denomination on 04.06.1999 to Shri Madhukar Khade, Peon Cosmos Bank, Aurangabad total amounting to Rs. 540.
(2) That the said Shri B.G. Gawai P.A. Kranti Chowk P.O. Sold 20 (twenty) fake fictitious postage stamps of Rs. 10 denomination on 03.06.1999 to Shri B.M. Wagh Clerk, Parson Machinery (India) Pvt.
Ltd. Jalna Road, Aurangabad total amounting to Rs. 200 and Shri Gawai received cash of Rs. 540 and Rs. 200 being cost thereof on 04.06.1999 and 03.06.99 respectively from them, he did not account for the said amount so received as sale proceeds of the said fake postage stamps to the tune of Rs. 540 + Rs. 200 on 04.06.99 and 3.06.1999 respectively into the accounts on the respective dates and thereby violated the provisions of Rule 4(1)(a) and Rule 58 of the FHB Vol. I the sid Shri B.G. Gawai thereby did not maintain absolute integrity and acted in a manner unbecoming of a Govt. Servant and violated the provisions of Rule 3(1)(i) and (iii) of CCS (Conduct) Rules, 1964.
6. On the other hand, the issues before the learned Judicial Magistrate, First Class, Aurangabad in R.C.C. No. 1371/1999 were as under: 1. Has the prosecution proved that on 4.6.1999 and prior to it, at Kushalnagar, Kranti Chowk Post Office, Aurangabad, the accused cheated and thereby dishonestly induced the peon of Cosmos Bank namely M.G. Khade and clerk of Parason Machinery namely Bhaskar Wagh, to deliver money to purchase the forged postal stamps of Rs. 20 and 10 denominations showing them as genuine and thereby committed an offence punishable under Section 420 IP Code? 2. Has the prosecution proved that, at the same time and place, the accused committed forgery by preparing false postal stamps of Rs. 10 and 20 denominations with intent to cheat the public and thereby committed an offence punishable under Section 468 IPC? 3. Has the prosecution proved that, at the same time and place, the accused fraudulently and dishonestly used the forged postal stamps for the sale, for which he was knowing that, they were forged ones and thereby committed an offence under Section 471 punishable under Section 465 IPC? As to issues Nos. 1 and 3, the Ld. Trial Court held in para 13 of this judgment dated 27.7.2000 as under: 13. Hence, the prosecution failed to prove, beyond reasonable doubt that the stamps seized by the postmaster, which were seized thereafter by the police, were sold by the accused and hence the accused cannot be held guilty for the offence punishable under Section 420,465 and 471 IPC and answer the point Nos. 1 and 3 in the negative.
As to issue No. 2, the learned Trial Court held in paragraph 14 as under: 14. As to point No. 2: It is the case of the prosecution that, the accused prepared the false postal stamps of Rs. 10 and 20 denominations and thereby committed forgery, there is no evidence by the prosecution that, the accused was found in possession of the said stamps. There is no evidence by the prosecution that, the accused was found in possession of any such equipments, which can be used for preparation of such stamps. As discussed in the reasons to point Nos. 1 and 3, the prosecution failed to prove that the accused had sold the forged stamps. For these reasons, the prosecution failed to prove the offence punishable Under Section 468 IPC and answer point No. 2 in the negative.
7. Thus, the Trial Court acquitted the applicant under Section 248(1) of the Criminal Procedure Code, of the offences punishable under Sections 420, 465, 468 and 471, IPC as the charges were not proved beyond reasonable doubt.
8. The Inquiry Officer, on the other hand, in the Departmental Enquiry while assessing the evidence of various witnesses, records, documents etc. brought on record, observed as under: For Article of charge 1, the following facts are required to be established- 1. Whether Shri B.G. Gawai, CO was on duty at K.C. P.O. On 3.6.1999 and 4.6.99.
2. Whether Shri B.G. Gawai, CO had sold take postage stamps of Rs. 200 of Deno. Rs. 10 to Shri B.M. Wagh, of Parason Machinery (India) Pvt. Ltd. Jalna Road, Aurangabad on 3.6.1999.
3. Whether Shri B.G. Gawai, CO had sold fake postage stamps of Rs. 540 of Deno. Rs. 20 to Shri Madhukar Khade, Peon of Cosmos Cooperative Bank Ltd. Aurangabad on 4.6.99. Whether the envelopes of Cosmos Bank Aurangabad brought by Shri Madhukar Khade on 4.6.99 for registration booking i.e. Exh. SD 7/1 to SD7/25 and Other stamps Exh. SD. 7/A were the same envelopes and also the same said fake stamps (affixed on the above Exhibits) sold by Shri B.G. Gawai, CO on 4.6.99 to Shri Madhukar Khade.
In view of the above documentary and circumstantial evidences it has been established beyond shade of doubts that Shri B.G. Gawai, CO was on duty on 3.6.99 and 4.6.99 and performed the works of Regn/parcel bookings and stamps sale on the said day at counter Kranti Chowk Post Office, Aurangabad.
From the above discussion and collateral oral and documentary evidences, it is very clear and established that the postage stamps of Rs. 10 deno. For Rs. 200 which were sold by Shri B.G. Gawai, CO to Shri B.M. Wagh of Parason Machinery (India) Ltd. Aurangabad (SW.1) on 3.6.99 were fake postage stamps only.
9. However, it is worth mentioning that before coming to the above said conclusion on issue No. 2, the Inquiry Officer has dealt with the evidence of both the parties in detail, which is to be seen in the preceding paragraphs of the I.O.'s report dated 5.12.2001 in which it has been mentioned that....
as per Hand to hand receipt books dated 25.5.99, 26.5.99, and 27.5.99, CO had every time, returned the Postage stamps of Deno Rs. 10 for Rs. 500 to Treasurer (SW.6) without making sale at counter.
Further, on 3.6.99, CO was having the postage stamps of Rs. 10 deno for Rs. 100 in stamp advance with him. Thus, it is a question when there was only stock of Postage stamps of Rs. 10 deno. For Rs. 100 with CO on 3.6.99 and no further stock of postage stamps Den. Rs. 10 deno taken over on the aforesaid dates from Treasurer, were returned by CO to Treasurer on the very dates, then how he sold the postage stamps of Rs. 200 to SW-1 on 3.6.1999? Moreover, Shri V.M. Bhavsar, SPM (SW-5) and Shri E.X. Chinchpure, PA (SW-3) have clearly deposed that they found difference in colour of postage stamps sold by SW-3 and postage stamps of Rs. 10 deno for Rs. 200 already affixed on the said envelope sold by CO to SW-1 on 3.6.99 and got suspicious. From the depositions of SW. 1, CO sold the postage stamps of Rs. 10 Deno.
For Rs. 200 to SW. 1. Thus, the depositions of SW-1, SW-3 SW-5 and SW-6 and Exhibit SD-14 are sufficient evidences to prove the instance and therefore, I have no hesitation to agree with statement of PO that CO had sold the fake postage stamps of Rs. 10 deno. For Rs. 200 to SW-1 on 3.6.99 from Counter at KC PO Aurangabad.
In the above background of the matter, the I.O. had arrived at the conclusion in his report as under: From the above discussions and oral and documentary evidences produced by the Disciplinary Authority, it has been proved beyond doubt that Shri B.G. Gawai, CO had sold the fake Postage stamps of Rs. 20 denomination for the amount of Rs. 540 on 4.6.99 in the counter Kranti Chowk Post Office at Aurangabad.
Thus, from the depositions of S/Shri V.M. Bhavsar, then SPM KC PO and D.M. Padmukh, then ASPOs South Sub Division, Aurangabad, it is clear that there was no threat or pressure from Shri V.S. Patil, the SSPOs Aurangabad while recording Exh. SD-8 of CO and the statement of CO is vague and holds no water.
Rule 3 (1) (i) and (iii) of CCS (Conduct) Rules 1964 requires that every Government Servant should at all times maintain absolute integrity and do nothing which is unbecoming of a Govt. Servant. It has been established by the prosecution side that Shri B.G. Gawai, CO Sold the fake postage stamps on 3.6.1999 and 4.6.99 as discussed in aforesaid paras which showed that Shri B.G. Gawai, Charge Official has exhibited the lack of integrity and this act on his part was such, which amounts to unbecoming of a Government Servant.
10. It is, thus, abundantly clear that the charges as contained in the charge-sheet dated 1.7.99 stood proved in the departmental enquiry for which there was sufficient evidence on record and the same has been thoroughly considered and analysed by the I.O. before coming to the abovesaid conclusion. This is also amply clear that the charges in the departmental enquiry as well as in the trial Court were quite different. The thrust of charges in the departmental enquiry seems to be selling of the fake stamps in question by the applicant which stood proved in the departmental enquiry. On the other hand, the thrust of criminal charges was on other issues such as forgery and equipments for the purpose making fake stamps etc. The learned Counsel for the applicant, Shri S.P. Kulkarni, while arguing the of the applicant has heavily relied upon the following judgments: (1) G.M. Tank v. State of Gujarat and Ors. 2006(3) SLJ 312 (SC) : 2006 SCC (L&S) 1121.
(2) Narinder Mohan Arya v. United India Insurance Co. Ltd. and Ors.
2006(3) SLJ 211.
11. In G.M. Tank's case (supra), the Hon'ble Supreme Court has held that in case employees is honourably acquitted in criminal trial, contrary findings in the departmental proceedings, in such a case, are unjust and unfair. In that case, a criminal complaint was also lodged against the appellant therein under Section 5(1)(e) r/w 5(2) of the Prevention of Corruption Act, 1947 which was based on same set of facts, charges, evidence and witnesses. The criminal Court honourably acquitted the appellant of the said offence by holding that the prosecution failed to prove the charges levelled against the appellant.
The said order of the trial Court was not further challenged by the State and therefore, it became final and conclusive. Before the Hon'ble Supreme Court, the main contention of the appellant was that there was no evidence against him to hold him guilty. The fact of his honourable acquittal by the trial Court during pendency of challenge to his dismissal order was brought to the notice of the Division Bench of the Hon'ble High Court, but it was not considered by it. On the above facts, it was contended that the dismissal of the appellant was bad in law and, therefore, was liable to be set aside. In this background the Hon'ble Supreme Court held that it was a case of no evidence. The facts and evidence in the departmental as well as criminal proceedings were the same without being any iota of difference. In these circumstances, the Hon'ble Supreme Court applying the earlier ruling in the case of Capt. M. Paul Anthony v. Bharat Gold Mines Ltd. held in favour of the applicant.
12. The Hon'ble Supreme Court has consistently held that the distinction between the Departmental Enquiry and Criminal proceedings is made on the basis of approach and burden of proof.Ajit Kumar Nag v. G.M (P), Indian Oil Corporation Ltd. , the Apex Court held in para 11 as under: 11. As far as acquittal of the appellant by a criminal Court is concerned, in our opinion, the said order does not preclude the Corporation from taking an action if it is otherwise permissible. In our judgement, the law is fairly well settled. Acquittal by a criminal Court would not debar an employer from exercising power in accordance with the Rules and Regulations in force. The two proceedings, criminal and departmental, are entirely different. They operate in different fields and have different objectives. Whereas the object of criminal trial is to inflict appropriate punishment on the offender, the purpose of enquiry proceedings is to deal with the delinquent departmentally and to impose penalty in accordance with the service rules. In a criminal trial, incriminating statement made by the accused in certain circumstances or before certain officers is totally inadmissible in evidence. Such strict rules of evidence and procedure would not apply to the departmental proceedings. The degree of proof which is necessary to order a conviction is different from the degree of proof necessary to record the commission of delinquency. The rule relating to appreciation of evidence in the two proceedings is also not similar. In criminal law, burden of proof is on the prosecution and unless the prosecution is able to prove the guilt of the accused 'beyond reasonable doubt', he cannot be convicted by a Court of law. In a departmental enquiry, on the other hand, penalty can be imposed on the delinquent officer on a finding recorded on the basis of 'preponderance of probability'. Acquittal of the appellant by a Judicial Magistrate, therefore, does not, ipso facto, absolve him from the liability under the disciplinary jurisdiction of the Corporation. We are, therefore, unable to uphold the contention of the appellant that since he was acquitted by a criminal Court, the impugned order dismissing him from service deserves to be quashed and set aside.Depot Manager, A.P. SRTC v.Mohd. Yousuf Miya The purpose of departmental enquiry and of prosecution are two different and distinct aspects. The criminal prosecution is launched for an offence for violation of duty, the offender owes to the society or for breach of which law has provided that the offender shall make satisfaction to the public. So crime is an act of commission in violation of law or of omission of public duty. The departmental enquiry is to maintain discipline in the service and efficiency of public service....
15. Further, in a slightly recent case of Commissioner of Police, New Delhi v. Narender Singh 2006(3) SLJ 54 (SC), the Hon'ble Apex Court has also dealt with somewhat similar situation. In the above case, the respondent Narender Singh therein, who was employed with the Delhi Police as Constable, was involved in theft of two revolvers and one pistol from Vijayghat Armoury, Delhi. While in police custody, he made a confession as to the theft. This confessional statement was used in the Departmental Enquiry in holding him guilty, whereas in criminal case he was acquitted. After the I.O. had found him guilty, he was dismissed. The dismissal was quashed by the Principal Bench of the Tribunal at New Delhi in Original Application vide order dated 24.2.2004 and in the Writ Petition filed there against was also dismissed in limine by the Hon'ble High Court. In this backdrop, the Hon'ble Supreme Court set aside the judgments of Tribunal and the Hon'ble High Court and held as under: 11. It is not in dispute that the standard of proof required in recording a finding of conviction in a criminal case and in a departmental proceeding are distinct and different. Whereas in a criminal case, it is essential to prove a charge beyond all reasonable doubt, in a departmental proceeding preponderance of probability would serve the purpose. Kamaladevi Agarwal v. State of West Bengal and Ors.
12. It is now well-settled by reason of a catena of decisions of this Court that if an employee has been acquitted of a criminal charge, the same by itself would not be a ground not to initiate a departmental proceeding against him or to drop the same in the event an order of acquittal is passed."In Manager Reserve Bank of India, Bangalore v. Mani and Ors.
this Court held: It is trite that a judgment of acquittal passed in favour of the employees by giving benefit of doubt per se would not be binding upon the employer....Bank of India and Anr. v. Degala Suryanaraya ; Ajit Kumar Nag. General Manager (PJ), Indian Oil Corporation Ltd. Haldia and Ors. .
16. In the present case before us, there is no honourable acquittal of the applicant, and he was discharged in the criminal trial Court as the charges could not be proved beyond reasonable doubt. Therefore, it is not a case of honourable acquittal. Moreover, in view of the analysis of the issues before the criminal trial Court as well as charged before the departmental enquiry, it can be safely concluded that the motivating factors in discharge of the appellant in criminal trial were totally different than the factors which motivated the Enquiry Officer to hold him guilty in the departmental enquiry.
17. Next, one of the arguments of the learned Counsel for the applicant Mr. S.P. Kulkarni to set aside the whole inquiry proceedings is that the Inquiry Officer did not adjourn the inquiry on 2.11.2001 on medical ground and also that the I.O. had himself seen the applicant on 1.11.2001 in his meeting with the Senior Officials of the respondents organisation. The learned Counsel for the applicant has relied upon the finding of Hon'ble Supreme Court in Narinder Mohan Arya v. United India Insurance Co. Ltd. and Ors. (supra) in support of this contention.
18. The respondents Counsel, Mr. V.S. Masurkar, on the other hand contended that not only on 1.11.2001 the applicant was but he was present on duty on 2.11.2001 too in the office in the said meeting. He deliberately avoided the inquiry proceedings and" did not present himself. In these circumstances the I.O. was left with no option but to proceed ex parte against the applicant. It is further argued by the learned Counsel for the respondents that even on 7.11.2001 the applicant appeared before the I.O. to press for his change on the ground of bias, but did not ask for leading evidence or for re-calling the ex parte order. He simply expressed his intention not to participate in the inquiry.
On Perusal of the original records of the proceedings, it is revealed that not only on 7.1.2001, but the applicant was present on 13.11.2001 also in the inquiry and the I.O. repeatedly requested the applicant to co-operate and participate in the inquiry and further asked him to submit his defence statement and examine the defence witnesses who were present on that date. But the applicant did not do so at his own cost and peril.
19. We have gone through the judgment of the Hon'ble Supreme Court in Narinder Mohan Arya's case (supra), which lays down the following guidelines in the matter of departmental proceedings: 2. Court shall not interfere on inference drawn by material on records.
3. When a decision is based on no evidence the Court can interference.
4. An appellate order is in agreement with order of Disciplinary Authority, if may not be speaking one but should show application of mind.
9. Court must see whether sufficient material has been brought on record.
20. The facts of Narinder Mohan Arya's case are entirely different than the facts in the present case in hand. In the present case before us, the conduct of the applicant itself if blame-worthy. He took a conscious decision not to participate in the inquiry after a particular stage. His attitude was indifferent towards the inquiry. We have perused the original records of inquiry, including attendance register of 2.11.2001 and the same has been duly signed by the applicant who was very much on duty on 2.11.2001 despite his medical certificate. The I.O. has not used any outside or extraneous material to come to the conclusion of proving the charge against him on merit. Hence, there is no violation of the principles of natural justice, rule or regulation by the I.O.21. The O.A. is accordingly, dismissed. The parties to bear their own costs.