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2004 DIGILAW 494 (GAU)

Jadev Chetia v. State of Assam

2004-08-30

BIPLAB KUMAR SHARMA

body2004
JUDGMENT B.K. Sharma, J. 1. The writ Petitioner who was dismissed from service pursuant to a departmental proceeding is aggrieved by the order passed on review of the earlier order of dismissal by which he has been reinstated in service with the modified punishment of stoppage of two increments with cumulative effect, further providing that the period of absence from the date of order of suspension till resumption of duties would be treated as absence from duty disentitling him from all service benefits and also providing for recovery of the amount misappropriated by him for which the charge was drawn against him. 2. The Petitioner while was serving as LDA under the Deputy Commissioner, Sibsagar was placed under suspension by an order dated 11.08.88, on ground of misappropriation of Govt. money. A regular departmental proceeding was initiated and completed against him. The Petitioner was charged for misappropriation of Govt. money amounting to Rs. 58,977.11. 3. On conclusion of the departmental enquiry and having held the charge to the established, the Petitioner was imposed with the penalty of dismissal from service by an order dated 12.09.88. It was further provided that for the period of suspension, he would not be entitled to any other benefit except the subsistence allowance which was already paid to him. 4. The Petitioner, being aggrieved by the aforesaid order of penalty preferred an appeal before the Commissioner, Upper Assam Division, Jorhat. It would be pertinent to mention here that a criminal proceeding was also instituted against the Petitioner Under Section 408 of the IPC. The Petitioner was acquitted from the criminal charge by judgment dated 20.07.95 which was much after the order of dismissal passed against the Petitioner on 12.09.88. The Petitioner after his such acquittal once again approached the Respondents for setting aside the order of dismissal. However, the same having not yielded any result, he approached this Court by filing a writ petition which was registered and numbered as Civil rule No. 5479/96. The writ petition was disposed of by an order dated 26.11.98 providing that the Deputy Commissioner, Sibsagar would dispose of the appeal/representation of the Petitioner taking into account the disposal of the criminal charge in favour of the Petitioner. 5. Pursuant to the said order of this Court, the Deputy Commissioner, Sibsagar passed the impugned order dated 10.01.2000 in modification of the earlier order of dismissal from service. 5. Pursuant to the said order of this Court, the Deputy Commissioner, Sibsagar passed the impugned order dated 10.01.2000 in modification of the earlier order of dismissal from service. By the said order dated 10.01.2000, the Petitioner has been reinstated in service with the penalty of stoppage of two increments with cumulative effect. It has further been provided that the amount misappropriated by the Petitioner would be recovered by 60 equal monthly instalments from the salary of the Petitioner from the next month of the joining of service by the Petitioner. It has also been provided that the entire period of absence from the date of placing the Petitioner under suspension to the date of resumption of duty would be treated as absence from duty for all purpose without any service benefits except the subsistence allowance already paid to the Petitioner. 6. Pursuant to the aforesaid impugned order dated 10.01.2000, the Petitioner resumed his duty on 11.01.2000. After his joining, a gradation list pertaining to Grade-III employees under the Deputy Commissioner, Sibsagar, was issued on 27.04.2000. In the gradation list, the Petitioner has been placed at serial No. 134 showing his date of appointment as 11.01.2000, meaning thereby that his entire earlier period of service has been obliterated. Be it stated here that the Petitioner had joined his service on 22.06.84. Thus by the impugned order and the gradation list, the earlier period of service (about 16 years) has been rendered non est. 7. The Petitioner has assailed the legality and validity of the aforesaid order dated 10.01.2000 and the gradation list dated 27.04.2000. According to the Petitioner, in view of his acquittal by the criminal Court, he is entitled to be reinstated in service without any penalty. His further case is that the recovery of the amount allegedly misappropriated by him could not have been ordered in view of his acquittal by the criminal Court. Further grievance made by the writ Petitioner is that in view of reinstatement in service by substituting the earlier penalty of dismissal from service to that of stoppage of two increments with cumulative effect, the entire period of absence from duty from the date of placing him under suspension to the date of resumption of duty could not have been ordered to be treated as the period of absence without any service benefits. It is pursuant to the said order dated 10.01.2000, the Petitioner has been shown to be a new recruit to the service by showing his date of appointment as 11.01.2000 on which date he resumed his duty after the order of reinstatement dated 10.01.2000. As noticed above, the Petitioner was appointed to the service way back in 1984. Thus, by the impugned orders about 16 years of service rendered by the Petitioner prior to his reinstatement in service by the order dated 10.01.2000 has been rendered non est. 8. I have heard Mr. N. Barah, learned Counsel for the Petitioner and Mr. H.K. Mahanta, learned Govt. Advocate, Assam. Mr. Barah submitted that the Petitioner having been acquitted in the criminal case, he was entitled to be reinstated in service without any penalty treating the entire period of absence as the period spent on duty entitling him to all service benefits. He further submitted that the penalty of stoppage of two increments with cumulative effect could not have been ordered. Likewise, the order of recovery of the amount allegedly misappropriated by the Petitioner could not have been passed, in view of acquittal of the Petitioner from the criminal charges, Mr. Barah submitted. In a nutshell, his submission was that in view of acquittal of the Petitioner from the criminal charge akin to the charge in the departmental proceeding, the Petitioner was entitled to be reinstated in service with full benefits and there was no question of imposing any penalty against the Petitioner including the order for recovery of the amount allegedly misappropriated by him. He placed reliance on the following decisions of the Apex Court: a) (1999) 3 SCC 679 (Capt. M. Paul Anthony v. Bharat Gold Mines Ltd.) b) (1999) 4 SCC 759 (State Bank of India and Ors. v. T.J. Paul) c) 2001 (2) GLT 335 (Bidhan Ch. Dey v. State of Tripura and Ors.) 9. As against the aforesaid argument advanced by the learned Counsel for the Petitioner, Mr. H.K. Mahanta, learned State counsel supported the impugned orders. He submitted that merely because the Petitioner was acquitted in the criminal charge, he cannot claim for reinstatement in service with full benefits. He further submitted that the Petitioner having been found to be guilty in a departmental proceeding, he was rightly imposed with the penalty of dismissal from service having regard to the gravity of the misconduct. He submitted that merely because the Petitioner was acquitted in the criminal charge, he cannot claim for reinstatement in service with full benefits. He further submitted that the Petitioner having been found to be guilty in a departmental proceeding, he was rightly imposed with the penalty of dismissal from service having regard to the gravity of the misconduct. Such penalty was imposed in 1988 and the acquittal of the Petitioner from the criminal charge was in 1995. According to Mr. Mahanta such acquittal of the Petitioner from the criminal charge has got no nexus with the departmental proceeding. 10. I have considered the rival submissions made by the learned Counsel for the parties and have perused the materials available on records. For the reasons best known to the Petitioner, the documents pertaining to the departmental proceeding including the order of suspension, charge sheet and order of penalty etc. have not been annexed to the writ petition. What is annexed to the writ petition is the aforesaid order of this Court passed on 26.11.98 by which the representations of the Petitioner were directed to be disposed of taking into account the judgment in the criminal case, and the impugned orders dated 10.01.2000 and 27.04.2000. During the course of hearing the learned Counsel for the Petitioner was requested to produce the relevant documents pertaining to the departmental proceeding and the same were produced. 11. The Petitioner was charged for misappropriation of Govt. money to the tune of Rs. 58,977.11 under different heads. In the departmental enquiry conducted against the Petitioner the charge was held to be established. Pursuant thereto, the Petitioner was imposed with the penalty of dismissal from service which by no stretch of imagination can be said to be disproportionate to the gravity of the charge/misconduct. 12. Long after the dismissal of the Petitioner from service and when the same was accepted by the Petitioner by not taking recourse to any legal action, he made representations to the departmental authorities on the basis of his acquittal in the criminal case in July, 1995. His such representations were directed to be disposed of by this Court by the aforesaid order dated 26.11.98 passed in Civil Rule No. 5479/96. By the time the writ petition was disposed of, long 10 years had elapsed from the date of dismissal of the Petitioner from service. 13. His such representations were directed to be disposed of by this Court by the aforesaid order dated 26.11.98 passed in Civil Rule No. 5479/96. By the time the writ petition was disposed of, long 10 years had elapsed from the date of dismissal of the Petitioner from service. 13. Pursuant to the aforesaid order of this Court, the Deputy Commissioner, Sibsagar passed the impugned order dated 10.01.2000 ordering reinstatement of the Petitioner in service by substituting the earlier penalty of dismissal from service to that of stoppage of two increments with cumulative effect. By the said order dated 10.01.2000, the amount misappropriated by the Petitioner was ordered to be recovered from the monthly salary of the Petitioner in 60 equal instalments. It was further provided that entire period of absence would be treated as absence from duty without any service benefits except the subsistence allowance already paid to the Petitioner. It is on that basis the Petitioner has been treated to be a new entrant showing his date of joining as 11.01.2000 in the impugned gradation list dated 27.04.2000. 14. The Petitioner has been reinstated in service by the aforesaid order dated 10.01.2000 by way of substituting the earlier penalty of dismissal from service with that of stoppage of two increments with cumulative effect. If that be so, the period of absence from the date of suspension to the date of resumption of duty on 11.01.2000 pursuant to the said order dated 10.01.2000, could not have been treated as absence from duty for the purpose of treating the entire period as non est treating the Petitioner to be a new recruit. The substitution of penalty itself will nullify such a proposition. The Petitioner having been imposed with the penalty of stoppage of two increments with cumulative effect in lieu of earlier penalty of dismissal from service, the period of absence from duty for which the Petitioner had no hand, he can not be deprived of the said period of service. A strange situation has arisen pursuant to the order dated 10.01.2000 in which the Petitioner finds that his entire earlier period of service from 1984 has been obliterated and he has been treated to be a new recruit to the service from the date of resumption of duty, i.e. from 11.04.2000.1 am of the considered opinion that said part of the impugned order dated 10.01.2000 is not sustainable. 15. 15. In view of the above, the Petitioner would be entitled to count his service from his initial date of appointment in 1984 and the period of absence from duty w.e.f. the date of placing the Petitioner under suspension by order dated 11.01.88 till resumption of duty on 11.01.2000 pursuant to the modified order dated 10.01.2000, would count to the credit of the Petitioner with continuity in service. Consequently, the impugned gradation list dated 27.04.2000 stands corrected, showing his date of appointment as Junior Assistant as the date of his initial appointment in 1.984, i.e. on 22.06.84. However, the Petitioner will not be entitled to any salary for the said period, firstly because he was under order of dismissal from service against which he did not raise any grievance by taking recourse to any legal action and secondly because the Petitioner after remaining idle for long 8 years approached this Court by filing Civil Rule No. 5479/96 only on the basis of acquittal in the criminal case. The writ petition was also disposed of without granting any relief to the Petitioner, but only providing consideration of his representations taking into account his acquittal in the criminal case. It was only on that basis the Petitioner was reinstated in service pursuant to the order dated 10.01.2000. Thus the Petitioner was not in service from the date of dismissal by order dated 12.09.88 to the date of resumption of duty on 11.01.2000. 16. In the impugned order dated 10.01.2000, it has been provided that the amount of Rs. 58,977.11 shall be recovered in 60 equal instalments from the salary of the Petitioner. I do not find any infirmity in the same. The Petitioner was found guilty of the charge of misappropriation of Govt. money and he was dismissed from service on that basis. It will be an absurd proposition of law to hold that an employee who is found to be guilty of misappropriation of Govt. money and imposed with anyone of the prescribed penalties, cannot also be shackled with the responsibility to refund the amount misappropriated. An employee found to be guilty of misappropriation of Govt. money and thereby being guilty of misconduct will have to be imposed with any one of the prescribed penalties and at the same time there will also be an order for recovery of the amount misappropriated. 17. An employee found to be guilty of misappropriation of Govt. money and thereby being guilty of misconduct will have to be imposed with any one of the prescribed penalties and at the same time there will also be an order for recovery of the amount misappropriated. 17. According to the learned Counsel for the Petitioner the imposition of penalty of stoppage of two increments with cumulative effect and the order for recovery of the amount misappropriated amount to double punishment. Such a proposition cannot be accepted for the simple reason that the Petitioner cannot absolve himself from the liability of refunding the amount misappropriated upon holding him guilty of misconduct for such an act which necessarily entails any one of the prescribed penalties as may be imposed by the disciplinary authority. Thus I do not find any infirmity in the impugned action in ordering recovery of the amount misappropriated by the Petitioner along with the order imposing the penalty of stoppage of two increments with cumulative effect. 18. In the case of Capt. M. Paul Anthony v. Bharat Gold Mines Ltd. (supra), relied upon by the learned Counsel for the Petitioner, the Apex Court found that the departmental proceeding and the criminal case launched against the Appellant were based on the same set of facts and the evidence in both the proceedings was common without there being a variance. In that case the Appellant was not provided with the subsistence allowance and it was in that context the Apex Court held that the proceeding stood vitiated. At the same time it has been recognized that the proceedings in a criminal case and the departmental proceedings operate in distinct and different jurisdictional areas. Whereas in the departmental proceedings, whether a charge relating to misconduct is being investigated, the factors operating in the mind of the disciplinary authority may be many such as enforcement of discipline or to investigate the level of integrity of the delinquent or the other staff, the standard of proof required in those proceedings is also different than that required in a criminal case. While in the departmental proceeding the standard of proof is one of preponderance of the probabilities, in a criminal case, the charge is to be proved by the prosecution beyond reasonable doubt. 19. Needless to say that the ratio of any decision must be understood in the background of the facts of that case. While in the departmental proceeding the standard of proof is one of preponderance of the probabilities, in a criminal case, the charge is to be proved by the prosecution beyond reasonable doubt. 19. Needless to say that the ratio of any decision must be understood in the background of the facts of that case. It has been said long time ago that a case is only an authority for what it actually decides, and not what logically follows from it. In the instant case the legality and validity of the departmental proceeding is not under challenge. Likewise, in the earlier writ proceeding initiated by the Petitioner, this Court did not set aside the order of dismissal passed against the Petitioner. Only direction issued was to consider the representation made by the Petitioner taking into account the judgment in the criminal case. It was on that basis the order dated 10.01.2000 was passed reinstating the Petitioner in service and substituting the earlier order of dismissal from service to that of stoppage of two increments with cumulative effect. It is nowhere pleaded in the writ petition that the charges and the evidence in both the proceedings were on the same set of facts and common to each other without any variance. 20. The case of State Bank of India v. T.J. Paul (supra) has been pressed into service as regards the claim of back wages. In the said case the Apex Court upheld the order of the High Court granting the Respondent back wages without laying down any general proposition of law. In the instant case as has been noticed and held above, under the given facts and circumstances, the Petitioner is not entitled to any back wages. The case of Bidhan Ch. Dey (supra) on which the learned Counsel for the Petitioner placed reliance, this Court found that the Petitioner was dismissed from service upon his conviction in a criminal charge Under Section 302 of the IPC. His conviction was set aside by the appellate Court and it was in that context, the Petitioner was held to be entitled to be reinstated in service with full back wages on the ground that the source of dismissal stood collapsed on acquittal of the Petitioner. Same is not the case here. 21. His conviction was set aside by the appellate Court and it was in that context, the Petitioner was held to be entitled to be reinstated in service with full back wages on the ground that the source of dismissal stood collapsed on acquittal of the Petitioner. Same is not the case here. 21. The Petitioner was not dismissed from service on the basis of any criminal conviction, but he was so dismissed pursuant to a departmental proceeding. Thus, the said case also does not help the case of the Petitioner in any manner. If the Petitioner is provided with back wages on the face of the findings recorded against him holding him to be guilty of misappropriation of Govt. money, same will be a premium to his misconduct. The Petitioner was fortunate to have an order reinstating him in service in modification of earlier order of dismissal from service. The charge against him relating to misappropriation of Govt. money was proved and he was imposed with the penalty of dismissal from service. However, same was modified and he was imposed with the penalty of stoppage of two increments with cumulative effect. The Ape Court in the case of State of Tamil Nadu and Ors. v. K. Guruswamy as reported in : (1996) 7 SCC 114 observed that in case of corruption there can be nothing short of dismissal. 22. I may gainfully refer to the decision of the Apex Court as reported in (1996) 6 SCC 455 (State of Karnataka v. T. Venkata Ramanappa) in which the Apex Court pointed out the difference in standard of proof in departmental enquiry and criminal trial. Similarly in the case of Govind Das v. State of Bihar and Ors. as reported in (1997) 11 SCC 361 , the Apex Court held that acquittal from criminal case does not warrant setting aside the order of termination of service passed in departmental proceeding. The Apex Court observed that the standard of proof required to prove the charge of misconduct in departmental proceeding is not the same as that required to prove a criminal charge. The Apex Court observed that the standard of proof required to prove the charge of misconduct in departmental proceeding is not the same as that required to prove a criminal charge. The Apex Court held that the acquittal of the Appellant in the criminal case could not be made the basis for setting aside the order of termination of the service of the Appellant passed in a disciplinary proceeding on the evidence adduced in the departmental enquiry conducted in the charges levelled against the Appellant. 23. For the forgoing reasons and discussions, I do not find any infirmity in the impugned order dated 10.01.2000 so far as the same relates to imposition of penalty of stoppage of two increments with cumulative effect and the recovery of the amount of Rs. 58,977.11 misappropriated by the Petitioner, from his salary bill in 60 equal instalments. However, as regards the order for treating the period of absence in question to be the period as absence from duty disentitling the Petitioner from all service benefits and treating the reinstatement of the Petitioner in service as a new recruit stands interfered with. The Petitioner will be entitled to count the aforesaid period of absence from service with continuity in service for other benefits including seniority and pensionary benefits with notional fixation of pay taking into account the substituted penalty of stoppage of two increments with cumulative effect, without, however, any back wages. Consequently, the impugned gradation list dated 27.04.2000 stands set aside so far as the date of joining the service of the Petitioner as Junior Assistant as shown as 11.01.2000 is concerned. Same shall be replaced by the date of joining the service by the Petitioner in the year 1984. 24. The writ petition partly succeeds. There shall be no order as to cost.