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2002 DIGILAW 157 (KER)

G. Suresh Kumar v. Trvancore Devaswom Board

2002-03-04

M.R.HARIHARAN NAIR

body2002
Judgment :- M.R.Hariharan Nair, The petitioner, who was working as Head Clerk in the Assistant Devaswom Accounts Office, Nanthecode, is aggrieved by Ext. P7 order passed by the disciplinary authority, namely, the Devaswom Board, dismissing him from service based on Ext.P2 enquiry report prepared by the Enquiry Commissioner of the Board. 2. It was alleged that in a surprise check made by PW6, (examined by the Enquiry Commissioner) who was the Finance and Accounts Officer on deputation to the Board, it was discovered that a cheque for Rs.15,421/- prepared for presentation in the bank and intended for recoupment in the Devaswom account was missing. It was verified from the bank concerned that the cheque had been encashed by the petitioner and misappropriated. The matter was reported to the Police and in due course, Ext.P8 judgment was passed acquitting the petitioner. In the mean time disciplinary proceedings continued. According to the petitioner, there was no sufficient evidence before the Enquiry Officer to show that the petitioner was the person who took away the cheque or presented and enchashed the same and in such circumstances, the grave punishment of dismissal was absolutely unjustified. 3. Yet another defence made by the learned counsel for the petitioner is that out of the three charges framed against the petitioner, charge No.3 with regard to the unauthorized entry into the office warranting action for misconduct was not proved, and such being the case, the other two charges regarding theft of the cheque and misappropriation using the same also have no footing. It is also pointed out that charge No.1 is defective in so far as the exact date on which the cheque was stolen was not alleged therein and this, in turn, resulted in prejudice to the petitioner as he was not able to adduce clinching evidence to show that on the particular day he was elsewhere and could not have had access to the cheque. 4. With regard to the findings of the Enquiry Officer, it is argued that they cannot have any overriding effect against Ext.P8 and that since the criminal court has found him not guilty, though that was an event subsequent to the passing of Ext.P2 report, there is no justification for the disciplinary action to be continued resulting in the punishment impugned. With regard to the findings of the Enquiry Officer, it is argued that they cannot have any overriding effect against Ext.P8 and that since the criminal court has found him not guilty, though that was an event subsequent to the passing of Ext.P2 report, there is no justification for the disciplinary action to be continued resulting in the punishment impugned. There was no sufficient evidence, let alone that of any expert to conclude that the signature found at the reverse of the cheque concerned was affixed at the time of encashing the cheque by the petitioner. 5. As far as the gravity of the punishment is concerned the argument is that it is grossly improportionate to the alleged charge and that in the circumstances, this court can intervene and reduce the punishment or remand the matter. 6. I find no substance in any of these contentions. Ministry of Finance v. S.B. Ramesh ((1998) 3 SCC 227) relied on by the learned counsel for the petitioner was a decision by two Judges and based on findings in an ex parte enquiry. There is a causal observation in the decision that the degree of proof required in departmental disciplinary proceedings is more or less of the same standard as required for establishing the guilt of an accused in a criminal case and that suspicion, however strong, cannot be substituted for proof in a departmental disciplinary proceedings. The ratification of the findings of the Tribunal directing reinstatement of the delinquent officer made in that case, according to me was based on the special facts of that case and they cannot be generalized. 7. A Bench of three Judges found in Nelson Motis v. Union of India and another ((1992) 4 S.C.C. 711) that the contention that disciplinary proceedings cannot continue along with a criminal prosecution has no substance whatsoever in so far as the nature and scope of criminal case are very different from those of a departmental disciplinary proceedings and an order of acquittal cannot conclude or terminate the departmental proceedings. 8. Another similar Bench of the Apex Court found in Union of India and another v. B.C. Chaturvedi ((1995) 6 S.C.C. 749) that the Court or Tribunal, in its power of judicial review, cannot act as appellate authority to reappreciate the evidence and to arrive at its own independent findings on the evidence. 8. Another similar Bench of the Apex Court found in Union of India and another v. B.C. Chaturvedi ((1995) 6 S.C.C. 749) that the Court or Tribunal, in its power of judicial review, cannot act as appellate authority to reappreciate the evidence and to arrive at its own independent findings on the evidence. It may interfere where the authority held the proceedings against the delinquent officer in a manner inconsistent with the rules of natural justice or in violation of statutory rules prescribing the mode of inquiry or where the conclusion or finding reached by the disciplinary authority is based on no evidence at all. Where the conclusion or finding be such as no reasonable person would have ever reached it, the Court may interfere with the conclusion or the finding and mould the relief so as to make it appropriate to the facts of the case. 9. In the present case the petitioner has failed to point out any procedural irregularity in the enquiry except that the Enquiry Officer himself has put questions to the delinquent officer and also to other witnesses when they were giving evidence in the case. There does not appear to be any rule or statutory provision which insists that there should always be a presenting officer in every domestic enquiry. The requirements therefore will vary from case to case depending on circumstances. The present case is one of very simple facts. The only question is whether the delinquent took away the cheque, after entering another office unauthorisedly and enriched himself by encashing and receiving the amount covered by the cheque. In such a case there was no necessity for having a presenting officer. Merely because some questions were put by the enquiry officer to the witnesses, it cannot be stated that he was either biassed or that he overstepped the power conferred on him. 10. On the question whether the enquiry officer was justified in proceeding with the enquiry when the criminal trial was proceeding, the observation contained in M.Paul Anthony v. Bharat Gold Mines Ltd, and another ((1999) 3 S.C.C. 679 ) are relevant. It was held therein proceedings in a criminal case and departmental proceedings can go on simultaneously in so far as they operate in distinct and different jurisdictional areas. It was held therein proceedings in a criminal case and departmental proceedings can go on simultaneously in so far as they operate in distinct and different jurisdictional areas. The factors operating in the mind of the disciplinary authority may be enforcement of discipline or investigation regarding level of integrity of delinquent. The standard of proof required in such proceedings is different from that required in a criminal case. While in departmental proceedings the standard of proof is one of preponderance of probabilities, in a criminal case, the charge has to be proved by the prosecution beyond reasonable doubt. The only exception to this is where the departmental proceedings and the criminal case are based on idential and similar set of facts and the charge in the criminal case against the delinquent is of a complex nature which involves complicated questions of law and fact, in which case it is desirable to stay the departmental proceedings till conclusion of the criminal case. 11. As far as the present case is concerned it does not involve any complicated questions and the only aspect that had to be investigated was whether the delinquent was responsible for getting hold of the cheque from an office in which he had no need to be present and whether it was he who encashed the cheque and subsequently even repaid the amount when it was clear that disciplinary proceedings were about to be initiated. There does not appear to be any legal bar in the disciplinary proceedings taking place simultaneously with criminal trial for misappropriation and theft in such a case. 12. In the instant case, the disciplinary authority failed to send the signature found on the reverse of the cheque acknowledging receipt of cash from the cashier for expert evidence. On the other hand, he compared the same with Ext.P5 series signatures of the delinquent appearing in the acquittance roll which signatures were affixed at the time when he drew his salary from the employer. There does not appear to be any legal bar to the following of such a course of action to conclude whether there was probability of the cheque being encashed by the delinquent. That apart, even without the evidence based on the signature, there was sufficient material before the Enquiry Officer to conclude that it was none other then the petitioner herein who enchased the cheque and received the money. That apart, even without the evidence based on the signature, there was sufficient material before the Enquiry Officer to conclude that it was none other then the petitioner herein who enchased the cheque and received the money. When it was known to him that the fact of misappropriation was discovered, be came forward to repay the amount in an attempt to save himself. There is unimpeachable evidence of PW7-Ramachandran Potti to show that it was the accused who handed over Rs.15,421/- to him with direction to take it to the bank for recoupment in the place of the money received by encashment of the cheque. Notwithstanding the submission of the learned counsel for the petitioner that PW7 was inclined to give his evidence as above only because his written statement to that effect had been obtained earlier does not appear to be of any significance. 13. On a perusal of Ext.P2 from the perspective of the limitations available to this Court while exercising power of judicial review, I am not satisfied that there is any justification to interfere in the same. 14. What remains is the aspect of punishment. The submission of the learned counsel for the petitioner is that dismissal for misappropriation of Rs.15,421/- is not justified. Additional District Magistrate (City) Agra v. Prabhakar Chaturvedi (1996) 2 S.C.C.12)) dealt with a case where there was misappropriation of a sum of Rs.21,095/- and the dismissal was under challenge. It was found that when there is a finding of guilty for such an amount, though for a period of only two months and in that sense it was only a temporary misappropriation, the punishment of dismissal was not unjustified. 15. A Bench of three learned Judges found in Narayuanan Dattatraya Ramteerthakhar v. State of Maharashtra and others ((1997) 1 S.C.C.2 99) that where the dismissal of the delinquent was for misappropriation of sum of Rs.1,440/- and where there was evidence to show that he had himself redeposited the amount, there was no justification for interference with the finding of guilty or on the consequent order removing him from service. In Government of Andhra Pradesh v. B. Ashok Kumar ((1997) 5 S.C.C. 478)the following observations were made by the Apex Court. In Government of Andhra Pradesh v. B. Ashok Kumar ((1997) 5 S.C.C. 478)the following observations were made by the Apex Court. ‘It is now settled legal position that imposition of the penalty is the right of the disciplinary proceedings authority consistent with the magnitude and the misconduct imputed and the evidence in support thereof. The Tribunal in disciplinary proceedings found as a fact that the respondent demanded and accepted illegal gratification of Rs. 3000/- for not prosecuting the offender. Since the respondent is an Inspector of Police, a high-ranking officer, if he demands and accepts illegal gratification and restrains himself from initiating prosecution against the offender, it would have an effect on the maintenance of law and order in the society. Therefore, the finding of the Tribunal that it shook its conscience is unsustainable. We have seen that the Tribunal has no power to direct the appellant to reconsider the matter.’ Jantha Bazar v. Secretary, Sahakari Noukarara Sangh (AIR 2000 S.C.3129) went into the propriety of an order of the Labour Court reinstating the delinquent within 25% back wages in spite pf specific finding of fact that the charges of breaches of trust and misappropriation of goods had been established. It was held that it would be an unjustified direction to reinstate an employee against whom charge of misappropriation is established and that in such a case there is no question of considering the past records. It is in the discretion of the employer to consider such questions and the court cannot substitute the penalty imposed by the employer in such cases. Once an act of misappropriation is approved, may be for a small or large amount, there is no question of showing uncalled for sympathy and reinstating the employees in service. As far as the present case is concerned, a perusal of Ext.P7 order shows that a contention was raised by the delinquent that he had an unblemished service which aspect was to be taken into account while imposing punishment. In that regard, the disciplinary authority referred to File No. R.O.C.1505/90/N.S./Estt. As far as the present case is concerned, a perusal of Ext.P7 order shows that a contention was raised by the delinquent that he had an unblemished service which aspect was to be taken into account while imposing punishment. In that regard, the disciplinary authority referred to File No. R.O.C.1505/90/N.S./Estt. and found that the delinquent had, on a previous occasion, forged the initials of none other than the President of the Devaswom Board and even fabricated an appointment order of the Board in favour of one Pradeep Kumar and that he had been placed under suspension in that case and later on given the punishment of barring of two increments with cumulative effect and that he was saved from harsher punishment at the time on condition that he would not involve himself in any misconduct thereafter. It was after suffering the said punishment that the delinquent has got himself involved in the present charge. Viewed from any perspective, I find no reason to interfere with the punishment of dismissal entered by the disciplinary authority vide Ext. P7. The Original Petition is without merit and it is dismissed.