Smt. Jayasree Rajkumar W/O Rajkumar M.K. Cottage Vs. the Director of Postal Services Northern Region, Kerala Circle Kozhilkode and Others - Court Judgment

SooperKanoon Citationsooperkanoon.com/938084
CourtCentral Administrative Tribunal CAT Ernakulam
Decided OnJun-08-2010
Case NumberOriginal Application No. 717 of 2007
JudgeHONOURABLE MR. JUSTICE K. THANKAPPAN, JUDICIAL MEMBER & HONOURABLE MR. K. GEORGE JOSEPH, ADMINISTRATIVE MEMBER
AppellantSmt. Jayasree Rajkumar W/O Rajkumar M.K. Cottage
RespondentThe Director of Postal Services Northern Region, Kerala Circle Kozhilkode and Others
Advocates:For the Applicant: Mr. T.R. Rajan, Advocate. For the Respondents: Mr. Sunil Jacob Jose, SCGSC.
Excerpt:
this o.a. is filed challenging the order rejecting the petition submitted by the applicant for change of enquiry officer and stay on departmental proceedings till the finalisation of a criminal case pending against her before the special court (s.b.e./c.b.i) - ii, ernakulam. 2. the applicant was charge sheeted on 26.03.2003 for short of office cash / stamp balance of rs. 2,73,318.65 during the period from 28.05.2002 to 27.03.2003 while working as sub postmaster, pulpalli sub post office, wynad district. a criminal case was also filed by the cbi against the applicant before the special court (s.b.e./c.b.i) - ii, ernakulam, in the matter. the applicant's petition for staying of the departmental proceedings till the cbi case is decided and for change of enquiry officer was rejected by annexure a-1 order. hence the o.a. 3. the applicant submitted that as per instructions of the government of india and rule 80 of the pandt manual volume-iii the departmental action should not precede criminal prosecution and continuance of departmental proceedings while criminal proceedings are pending would adversely affect the applicant's defence in the criminal proceedings. therefore, the respondents should have stayed the departmental proceedings till the disposal of the criminal case before the special court (s.b.e./c.b.i) - ii, ernakulam. 4. the respondents contested the o.a. it was submitted on their behalf that the departmental proceedings were initiated against the applicant for violation of departmental rules and conduct rules whereas the cbi case is filed for criminal offence. as per the government of india instructions dated 07.06.1955 and 04.09.1964, they have obtained permission from the cbi to go ahead with the departmental proceedings against the applicant. 5. in the rejoinder, the applicant relied on the judgment of hon'ble supreme court in 1999 (3) scc 679 wherein it was held that if the departmental proceedings and the criminal case are based on identical and similar set of facts and the charge in the criminal case against the delinquent employee is of a grave nature which involves complicated questions of law and fact, it would be desirable to stay the departmental proceedings till the conclusion of the criminal case. 6. the respondents in their additional reply statement submitted that the standing orders of government of india do not prohibit launching of departmental proceedings during the pendency of criminal proceedings. the only condition is that it should be decided in consultation with the police authorities. 7. arguments were heard and documents perused. 8. rule 80 of the pandt manual volume-iii is extracted as under : "80. prosecution should be the general rule in all those cases which are found fit to be sent to the court after investigation and in which the offences are of bribery, corruption or other criminal misconduct involving loss of substantial public funds. in such cases, departmental action should not precede prosecution. in other cases involving less serious offences or involving malpractices of a departmental nature, only departmental action should be taken and the question of prosecution should generally not arise." according to rule 80, in all cases which are fit to be sent to the court after investigation, departmental action should not precede prosecution. but there are instructions of the government of india in the matter vide d.g., pandt letter no. 6/67/64-disc. dated 13th june, 1967, read with rule 80 of pandt manual, volume iii, as amended by advance correction slip no.1, dated 16th january, 1989, vide department of posts letter no. 15/70-vig.iii, dated 16th january, 1989, wherein it is stated "if however, it is desired to conduct departmental enquiries simultaneously with police enquiries or to take departmental action wherever feasible before the case is taken up for prosecution by the police, the matter should be decided after consultation with the police authorities." in the instant case, the respondents have obtained permission of the cbi to go ahead with the departmental proceedings against the applicant. 9. in state of rajasthan vs. b.k. meena and others, (1996) 6 scc 417, the hon'ble apex court held as follows : "14................ "it is not also in the interest of administration that persons accused of serious misdemeanor should be continued in office indefinitely, i.e. for long periods awaiting the result of criminal proceedings. it is not in the interest of administration. it only serves the interest of the guilty and dishonest. while it is not possible to enumerate the various factors for and against the stay of disciplinary proceedings we found it necessary to emphasis some of the important considerations in view of the fact at very often the disciplinary proceedings are being stayed for long periods pending criminal proceedings. stay of the disciplinary proceedings cannot be and should not be a matter of course. all the relevant facts for and against should be weighed and decision taken keeping in view the various principles laid down in the decisions referred to above." (emphasis supplied) 10. in depot manager, ap state road transport corporation vs. mohd. yousuf miya etc., air 1997 sc 2232, the apex court held that : ".............there would be no bar to proceed simultaneously with departmental enquiry and trial of a criminal case unless the charge in the criminal trial is of grave nature involving complicated questions of fact and law. ........" "............the departmental proceedings relate to conduct or breach of duty of the delinquent officer to punish him for his misconduct defined under the relevant statutory rules or law. strict stand of proof or applicability of the evidence act stands excluded is a settled legal position. the enquiry in the departmental proceedings relates to the conduct of the delinquent officer and proof in that behalf is not as high as in an offence in criminal charge. the nature of evidence in criminal trial is entirely different from the departmental proceedings. the enquiry in the departmental proceedings relates to the conduct of the delinquent officer and proof in that behalf is not as high as in an offence in criminal charge. it is seen that invariably the departmental enquiry has to be conducted expeditiously so as to effectuate efficiency in public administration and the criminal trial will take its own course. the nature of evidence in criminal trial is entirely different from the departmental proceedings. in the former, prosecution is to prove its case beyond reasonable doubt on the touch stone of human conduct. the standard of proof in the departmental proceedings is not the same as of the criminal trial. the evidence also is different from the standard point of evidence act. the evidence required in the departmental enquiry is not regulated by evidence act. under these circumstances, what is required to be seen is whether the departmental enquiry would seriously prejudice the delinquent in his defence at the trial in a criminal case. it is always a question of fact to be considered in each case depending on its own facts and circumstances..." (emphasis supplied) there is no bar on conducting departmental enquiry simultaneously with criminal proceedings if facts and circumstances warrant it. 11. in suresh kumar vs. travancore devaswom board, 2005 (3) klt 723, the hon'ble high court of kerala held that the disciplinary proceedings can be conducted pending criminal proceedings. the hon'ble high court referring to the decision of the apex court in capt. m. paul anthony vs. bharat gold mines ltd. and another, air 1999 sc 1416, held : "......in that case it was clearly held that departmental proceedings and criminal proceedings can proceed simultaneously, but it was held that in appropriate cases where complicated question of law and facts are involved, departmental proceedings can be stayed pending disposal of the criminal case. it is well settled law that in departmental proceedings the standard of proof is one of preponderance of probabilities, whereas in a criminal case, the charge has to be proved by the prosecution beyond reasonable doubt. the purpose sought to be achieved are also different. the charges levelled in the disciplinary proceedings have to be tested keeping in mind the enforcement of discipline and the level of integrity amongst the staff in the administration of the establishment but these are not relevant factors in the criminal proceedings. if in the domestic enquiry held in accordance with the principles of natural justice an employee is found guilty and the disciplinary authority had imposed punishment, it cannot be set aside because subsequently the criminal court has acquitted him." 12. as submitted by the respondents, the applicant was charge sheeted under rule 14 of ccs (cca) rules, 1965, vide annexure a-2 on the charges of failure to act upon the responsibility enjoined upon her to ensure the correctness of the cash/stamp balance of the office by rule 84-a of the postal manual vol. vi part iii (sixth edition) and by her above act she failed to maintain absolute integrity and conducted herself in a manner unbecoming of a government servant contravening the provisions of rules 3(1)(i) and 3(1)(iii) of the ccs (conduct) rules, 1964. whereas the cbi has filed a case no. cc no. 1/2004 before the special court (s.b.e./c.b.i) - ii, ernakulam, under section 13(2) read with 13(1) (c) and section 13(1)(d) of the p.c. act, 1988 and sections 409 and 477a ipc. it is quite clear that the departmental proceedings are initiated against the applicant in violation of the provisions of ccs (cca) rules and rule 84-a of the postal manual volume vi part iii whereas the prosecution is for criminal misconduct. the instructions of the government of india make it clear that departmental enquiries can be taken up simultaneously with criminal cases after consultation with the police authorities. the respondents are following the instructions of the government of india when they go ahead with the departmental proceedings against the applicant with permission from the cbi. 13. departmental enquiry and the prosecution are quite different and distinct from each other. the criminal prosecution is launched for an offence for violation of a duty the offender owes to the society or for breach of which, law provides that the offender shall make satisfaction to the public. the departmental enquiry is to maintain discipline in the service and efficiency of the public service. therefore, there is no infirmity in conducting departmental proceeding along with a criminal case against the applicant. 14. the applicant was not permitted to engage a legal practitioner for her assistance as the departmental presenting officer was not a legal practitioner. just because the enquiring authority was transferred to the office of the disciplinary authority, the enquiring authority does not become biased against the applicant. therefore, the decision of the applicant that the enquiry authority was biased against her is not based on any facts or evidence. the challenge against the action of the enquiring authority in conducting ex parte proceedings fails as the records revealed that the assisting presenting officer was present in the entire sittings. therefore, we do not see any error in the annexure a-1 order, rejecting the requests made by the applicant, for change of enquiry officer. 15. the applicant was suspended on 27.03.2003 and is being paid subsistence allowance for the last 7 years. it is not desirable to prolong the departmental proceedings which is in no way contrary to the established provisions of law. it is in the interest of the applicant and in the interest of the administration that the departmental proceedings are completed expeditiously. prompt conclusion of the disciplinary proceedings will restore the honour of the applicant if she is not guilty at the earliest; if she is guilty she will be dealt with promptly according to law; prolonged payment of subsistence allowance will come to an end. 16. in the result, the o.a. fails and it is accordingly dismissed. the interim stay dated 14.12.2007 on the departmental proceedings against the applicant is hereby vacated. the respondents are directed to complete the departmental proceedings against the applicant within a period of six months from the date of receipt of a copy of this order. the applicant also is directed to co-operate with the enquiry officer to complete the enquiry within the above period. if the proceedings are not completed within the above period, the applicant shall be reinstated in service. 17, there shall be no order as to costs.
Judgment:

This O.A. is filed challenging the order rejecting the petition submitted by the applicant for change of enquiry officer and stay on departmental proceedings till the finalisation of a criminal case pending against her before the Special Court (S.B.E./C.B.I) - II, Ernakulam.

2. The applicant was charge sheeted on 26.03.2003 for short of office cash / stamp balance of Rs. 2,73,318.65 during the period from 28.05.2002 to 27.03.2003 while working as Sub Postmaster, Pulpalli Sub Post Office, Wynad District. A criminal case was also filed by the CBI against the applicant before the Special Court (S.B.E./C.B.I) - II, Ernakulam, in the matter. The applicant's petition for staying of the departmental proceedings till the CBI case is decided and for change of enquiry officer was rejected by Annexure A-1 order. Hence the O.A.

3. The applicant submitted that as per instructions of the Government of India and Rule 80 of the PandT Manual Volume-III the departmental action should not precede criminal prosecution and continuance of departmental proceedings while criminal proceedings are pending would adversely affect the applicant's defence in the criminal proceedings. Therefore, the respondents should have stayed the departmental proceedings till the disposal of the criminal case before the Special Court (S.B.E./C.B.I) - II, Ernakulam.

4. The respondents contested the O.A. It was submitted on their behalf that the departmental proceedings were initiated against the applicant for violation of departmental rules and conduct rules whereas the CBI case is filed for criminal offence. As per the Government of India instructions dated 07.06.1955 and 04.09.1964, they have obtained permission from the CBI to go ahead with the departmental proceedings against the applicant.

5. In the rejoinder, the applicant relied on the judgment of Hon'ble Supreme Court in 1999 (3) SCC 679 wherein it was held that if the departmental proceedings and the criminal case are based on identical and similar set of facts and the charge in the criminal case against the delinquent employee is of a grave nature which involves complicated questions of law and fact, it would be desirable to stay the departmental proceedings till the conclusion of the criminal case.

6. The respondents in their additional reply statement submitted that the standing orders of Government of India do not prohibit launching of departmental proceedings during the pendency of criminal proceedings. The only condition is that it should be decided in consultation with the police authorities.

7. Arguments were heard and documents perused.

8. Rule 80 of the PandT Manual Volume-III is extracted as under :

"80. Prosecution should be the general rule in all those cases which are found fit to be sent to the court after investigation and in which the offences are of bribery, corruption or other criminal misconduct involving loss of substantial public funds. In such cases, departmental action should not precede prosecution. In other cases involving less serious offences or involving malpractices of a departmental nature, only departmental action should be taken and the question of prosecution should generally not arise."

According to Rule 80, in all cases which are fit to be sent to the Court after investigation, departmental action should not precede prosecution. But there are instructions of the Government of India in the matter vide D.G., PandT letter No. 6/67/64-Disc. Dated 13th June, 1967, read with Rule 80 of PandT Manual, Volume III, as amended by Advance Correction Slip No.1, dated 16th January, 1989, vide Department of Posts letter No. 15/70-Vig.III, dated 16th January, 1989, wherein it is stated "If however, it is desired to conduct departmental enquiries simultaneously with police enquiries or to take departmental action wherever feasible before the case is taken up for prosecution by the police, the matter should be decided after consultation with the police authorities." In the instant case, the respondents have obtained permission of the CBI to go ahead with the departmental proceedings against the applicant.

9. In State of Rajasthan vs. B.K. Meena and Others, (1996) 6 SCC 417, the Hon'ble Apex Court held as follows :

"14................ "It is not also in the interest of administration that persons accused of serious misdemeanor should be continued in office indefinitely, i.e. for long periods awaiting the result of criminal proceedings. It is not in the interest of administration. It only serves the interest of the guilty and dishonest. While it is not possible to enumerate the various factors for and against the stay of disciplinary proceedings we found it necessary to emphasis some of the important considerations in view of the fact at very often the disciplinary proceedings are being stayed for long periods pending criminal proceedings. Stay of the disciplinary proceedings cannot be and should not be a matter of course. All the relevant facts for and against should be weighed and decision taken keeping in view the various principles laid down in the decisions referred to above." (emphasis supplied)

10. In Depot Manager, AP State Road Transport Corporation vs. Mohd. Yousuf Miya etc., AIR 1997 SC 2232, the Apex Court held that :

".............There would be no bar to proceed simultaneously with departmental enquiry and trial of a criminal case unless the charge in the criminal trial is of grave nature involving complicated questions of fact and law. ........"

"............The departmental proceedings relate to conduct or breach of duty of the delinquent officer to punish him for his misconduct defined under the relevant statutory rules or law. Strict stand of proof or applicability of the Evidence Act stands excluded is a settled legal position. The enquiry in the departmental proceedings relates to the conduct of the delinquent officer and proof in that behalf is not as high as in an offence in criminal charge. The nature of evidence in criminal trial is entirely different from the departmental proceedings. The enquiry in the departmental proceedings relates to the conduct of the delinquent officer and proof in that behalf is not as high as in an offence in criminal charge. It is seen that invariably the departmental enquiry has to be conducted expeditiously so as to effectuate efficiency in public administration and the criminal trial will take its own course. The nature of evidence in criminal trial is entirely different from the departmental proceedings. In the former, prosecution is to prove its case beyond reasonable doubt on the touch stone of human conduct. The standard of proof in the departmental proceedings is not the same as of the criminal trial. The evidence also is different from the standard point of Evidence Act. The evidence required in the departmental enquiry is not regulated by Evidence Act. Under these circumstances, what is required to be seen is whether the departmental enquiry would seriously prejudice the delinquent in his defence at the trial in a criminal case. It is always a question of fact to be considered in each case depending on its own facts and circumstances..." (emphasis supplied)

There is no bar on conducting departmental enquiry simultaneously with criminal proceedings if facts and circumstances warrant it.

11. In Suresh Kumar vs. Travancore Devaswom Board, 2005 (3) KLT 723, the Hon'ble High Court of Kerala held that the disciplinary proceedings can be conducted pending criminal proceedings. The Hon'ble High Court referring to the decision of the Apex Court in Capt. M. Paul Anthony vs. Bharat Gold Mines Ltd. and Another, AIR 1999 SC 1416, held :

"......In that case it was clearly held that departmental proceedings and criminal proceedings can proceed simultaneously, but it was held that in appropriate cases where complicated question of law and facts are involved, departmental proceedings can be stayed pending disposal of the criminal case. It is well settled law that in departmental proceedings the standard of proof is one of preponderance of probabilities, whereas in a criminal case, the charge has to be proved by the prosecution beyond reasonable doubt. The purpose sought to be achieved are also different. The charges levelled in the disciplinary proceedings have to be tested keeping in mind the enforcement of discipline and the level of integrity amongst the staff in the administration of the establishment but these are not relevant factors in the criminal proceedings. If in the domestic enquiry held in accordance with the principles of natural justice an employee is found guilty and the disciplinary authority had imposed punishment, it cannot be set aside because subsequently the criminal court has acquitted him."

12. As submitted by the respondents, the applicant was charge sheeted under Rule 14 of CCS (CCA) Rules, 1965, vide Annexure A-2 on the charges of failure to act upon the responsibility enjoined upon her to ensure the correctness of the cash/stamp balance of the office by Rule 84-A of the Postal Manual Vol. VI Part III (Sixth Edition) and by her above act she failed to maintain absolute integrity and conducted herself in a manner unbecoming of a Government servant contravening the provisions of Rules 3(1)(i) and 3(1)(iii) of the CCS (Conduct) Rules, 1964. Whereas the CBI has filed a case No. CC No. 1/2004 before the Special Court (S.B.E./C.B.I) - II, Ernakulam, under Section 13(2) read with 13(1) (c) and Section 13(1)(d) of the P.C. Act, 1988 and Sections 409 and 477A IPC. It is quite clear that the departmental proceedings are initiated against the applicant in violation of the provisions of CCS (CCA) Rules and Rule 84-A of the Postal Manual Volume VI Part III whereas the prosecution is for criminal misconduct. The instructions of the Government of India make it clear that departmental enquiries can be taken up simultaneously with criminal cases after consultation with the police authorities. The respondents are following the instructions of the Government of India when they go ahead with the departmental proceedings against the applicant with permission from the CBI.

13. Departmental enquiry and the prosecution are quite different and distinct from each other. The criminal prosecution is launched for an offence for violation of a duty the offender owes to the society or for breach of which, law provides that the offender shall make satisfaction to the public. The departmental enquiry is to maintain discipline in the service and efficiency of the public service. Therefore, there is no infirmity in conducting departmental proceeding along with a criminal case against the applicant.

14. The applicant was not permitted to engage a legal practitioner for her assistance as the departmental presenting officer was not a legal practitioner. Just because the enquiring authority was transferred to the office of the disciplinary authority, the enquiring authority does not become biased against the applicant. Therefore, the decision of the applicant that the enquiry authority was biased against her is not based on any facts or evidence. The challenge against the action of the enquiring authority in conducting ex parte proceedings fails as the records revealed that the assisting presenting officer was present in the entire sittings. Therefore, we do not see any error in the Annexure A-1 order, rejecting the requests made by the applicant, for change of enquiry officer.

15. The applicant was suspended on 27.03.2003 and is being paid subsistence allowance for the last 7 years. It is not desirable to prolong the departmental proceedings which is in no way contrary to the established provisions of law. It is in the interest of the applicant and in the interest of the administration that the departmental proceedings are completed expeditiously. Prompt conclusion of the disciplinary proceedings will restore the honour of the applicant if she is not guilty at the earliest; if she is guilty she will be dealt with promptly according to law; prolonged payment of subsistence allowance will come to an end.

16. In the result, the O.A. fails and it is accordingly dismissed. The interim stay dated 14.12.2007 on the departmental proceedings against the applicant is hereby vacated. The respondents are directed to complete the departmental proceedings against the applicant within a period of six months from the date of receipt of a copy of this order. The applicant also is directed to co-operate with the enquiry officer to complete the enquiry within the above period. If the proceedings are not completed within the above period, the applicant shall be reinstated in service.

17, There shall be no order as to costs.