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2008 DIGILAW 458 (GAU)

Chandmohan Saha v. State of Tripura

2008-06-25

HRISHIKESH ROY

body2008
JUDGMENT Hrishikesh Roy, J. Heard Mr. S. Kar Bhowmik, learned Counsel for the petitioner and also Mr. A. Ghosh, learned Counsel who represents the official respondents. 2. The petitioner who served as a Lower Division Clerk (LDC) under the Directorate of Handloom, Handicrafts and Sericulture and who has since retired from service with effect from 30.4.2006, is before this Court to challenge a decision of the respondents to initiate a departmental enquiry by a charge memo dated 28.4.2006, which was issued just two days before he was to go on superannuation. The petitioner is also claiming granting of all service benefits due to him, which were allegedly denied to him, as he was placed under suspension since 15.1.1997 and was eventually made to retire from service without ever being reinstated to his post. 3. By order dated 15.1.1997, the petitioner who was discharging the responsibilities as a Cashier was placed under suspension in contemplation of a disciplinary proceeding. On the same date, an FIR was lodged in the West Agartala PS which led to registration of the West Agartala PS Case No. 10 of 1997 under Section 409 of IPC (converted later to GR Case No. 42 of 1997). The petitioner was tried in the Court of the learned Addl. CJM, West Tripura, Agartala and it would be appropriate to take note of the relevant portion of the charge on which the petitioner was tried. "That, you on any date after 30th December, 1996 to 13th January, 1997 at any time at office of the Directorate of Handloom, Handicrafts and Sericulture, Agartala being cashier entrusted with the property of cash money amounting to Rs. 3,86,898.23 paise i.e. (rupees three lakh eighty six thousand eight hundred ninety eight and twenty three paise) only in the capacity of being public servant committed criminal breach of trust with respect to such property and thereby committed an offence punishable under Section 409 of the Indian Penal Code and within cognizance of this Court." 4. The trial Court after taking note of the evidence adduced and also the audit report prepared after lodging of the FIR recorded as follows : On scrutiny of the exbt. M.O. 1 regarding, the cash shown physically in the cash book as on 13.1.1997, it revealed that though the amount of cash was shown as Rs. 6,63,590/- but the bill numbers of the bank drafts, cheques amounting to Rs. M.O. 1 regarding, the cash shown physically in the cash book as on 13.1.1997, it revealed that though the amount of cash was shown as Rs. 6,63,590/- but the bill numbers of the bank drafts, cheques amounting to Rs. 3,86,843/- consisting of bill Nos. 1595, 1041, 1567, 249 and 316 which mentioned in the audit reports was also shown as cash balance though from the audit report it is clear that those cheques, drafts has not been encashed within the period of 1.1.1997 to 10.1.1997. If the said amount of cheques and bank drafts could not be encashed, it could not be shown as cash balance as on 10.1.1997. So, the entries in the cash book mentioning those cheques and drafts which is shown as not encashed as per audit report is the indicative of the fact that the entries in the cash book were not correct and in this regard A.G. (Audit) also criticize the DDO by saying that the office could not produce any document and records where from it could be seen or provide that those drafts were encashed between the period from 1.1.1997 to 10.1.1997. So the entries made in the cash book from 1.1.1997 to 10.1.1997 is found incorrect. So, on the basis of incorrect cash analysis of Exbt. M.O. 1, it could not be ascertained that whether accused actually has misappropriated any money or not. The total figure of the said drafts and cheques was Rs. 3,86,843/-. So, if all those amounts are deducted from the actual figure than alleged defalcation would be only for Rs. 55/- (Rs. 3,86,898/- minus Rs.3,86,843/-) which is very meagure in figure. Obviously, a cashier would not defalcate only Rs. 55/-from a cash. So, it will be totally unwise to warrant a conviction basing on an untrue statement of cash analysis which is evident from the audit report, marked as Exbt. 13/1. 5. On the basis of the aforesaid recording and on consideration of all the evidence on record, the learned trial Court ordered acquittal of the petitioner from the charges levelled against him under Section 409 of IPC. Although it is recorded in the acquittal order dated 6.8.2005 that the same has been ordered on benefit of doubt, but in view of the categorical recording that the alleged defalcation could only be Rs. 55/ and not Rs. 3,86,898/- since an amount of Rs. Although it is recorded in the acquittal order dated 6.8.2005 that the same has been ordered on benefit of doubt, but in view of the categorical recording that the alleged defalcation could only be Rs. 55/ and not Rs. 3,86,898/- since an amount of Rs. 3,86,843/- has to be subtracted from the amount alleged to have been misappropriated as the most of the amount barring Rs. 55/- could not be considered as cash balance as they are referable to cheques and drafts. 6. During the entire period of trial starting from the lodging of the FIR on 15.1.1997 to the order of acquittal on 6.8.2005 no departmental enquiry was conducted against the petitioner, although he was placed under suspension on 15.1.1997 in contemplation of a departmental enquiry. 7. About 8 months after the order of acquittal by the trial Court, just 2 days be fore the petitioner was to reach the age of superannuation, by the impugned charge memo dated 28.4.2006, the disciplinary authority decided to hold an enquiry under Rule 14 of the CCS (CCA) Rules, 1965 and in the said charge memo, the statement of article of charge framed against the petitioner was indicated as follows : Shri Chandmohan Saha Cashier (LDC) (now under suspension) was entrusted to work as cashier vide office order No. DI/ PERS(M)/17744-52 dated 2.8.1980. On 10th January 1997, the Addl. Director of Handloom, Handicrafts and Sericulture directed Shri Chandmohan Saha Cashier (LDC) (now under suspension) to handover the complete charge of cash along with relevant records and files to Sri Maniklal Datta. While handing over the cash as per the cash balance as on 13.1.1997 there was a cash balance of Rs. 25,89,596/- (Rupees twenty five lakhs eighty nine thousand five hundred ninety six) only. Rs. 19,26,006.00 in the form of bank drafts, cheques and Rs. 6,63,590.00. Sri Chandmohan Saha Cashier (LDC) (now under suspension handed over Rs. 22,06,797.07) (Rs. 19,26,006.00 in the form of bank drafts, cheques and Rs. 2,76,691.77 in cash). Sri Chandmohan Saha Cashier (LDC) (now under suspension) did not handover cashRs. 3,86,898.23 and misappropriated. 8. In the list of witnesses, furnished along with the charge memo, names of several common witnesses who were also presented as prosecution witnesses during the criminal trial have been mentioned. 19,26,006.00 in the form of bank drafts, cheques and Rs. 2,76,691.77 in cash). Sri Chandmohan Saha Cashier (LDC) (now under suspension) did not handover cashRs. 3,86,898.23 and misappropriated. 8. In the list of witnesses, furnished along with the charge memo, names of several common witnesses who were also presented as prosecution witnesses during the criminal trial have been mentioned. It would be sufficient to take note that PW 1 Debendra Debbarma, PW 2 Bijit Chandra Bhattacharjee, PW 4 Asim Debbarma and PW 7 Sailaj Kumar Chaudhury were also cited as witnesses, for the departmental proceeding. 9. Mr. S. Kar Bhowmik, learned counsel for the petitioner submits that in view of the inordinate delay in deciding to initiate the departmental enquiry against the petitioner after 8 years of continuous suspension, it would not at all be justified to allow such departmental enquiry at such a belated stage. 10. Learned counsel further submits that the charge against the petitioner in the criminal trial and the charge proposed to be enquired in the departmental enquiry are based on the same set of facts and are sought to be established by practically the same set of witnesses and it would cause huge prejudice to the charged person who has already retired from service to face a departmental proceeding at such a belated stage. 11. The learned Counsel for the petitioner also contends that the acquittal order dated 6.8.2005 by the learned Addl. CJM in GR Case No. 42 of 1997 had not been challenged by the State and accordingly, the conclusion reached during trial had become final and it would not at all be justified to subject the petitioner to departmental enquiry at a belated stage to enquire into the same set of charge as the trial Court found that there was no misappropriation of Rs. 3,86,898/- as has been charged and instead it is a case of defalcation of only Rs. 55/- from the cash, which amount is unlikely to be misappropriated by a cashier. 12. Mr. S. Kar Bhowmik also contends that the petitioner was kept under suspension right from 15.1.1997 till the date of his retirement on 30.4.2006 and during the entire period the petitioner was not granted any of the service benefits such as promotion etc. 55/- from the cash, which amount is unlikely to be misappropriated by a cashier. 12. Mr. S. Kar Bhowmik also contends that the petitioner was kept under suspension right from 15.1.1997 till the date of his retirement on 30.4.2006 and during the entire period the petitioner was not granted any of the service benefits such as promotion etc. merely because he was kept under suspension and accordingly it is submitted that the department should have resorted to sealed cover procedure so that in the event, the departmental proceeding ends, the employee concerned could be given deserved service benefit of promotion. 13. Mr. A. Ghosh, learned Counsel appearing for the respondents, on the other hand, submits that the departmental proceeding was delayed on account of the fact that the requisite documents necessary to start a departmental enquiry were not available with the disciplinary authority as the very same documents were used and were part of the records of the criminal Court during the trial against the petitioner and only when the criminal ended on 6.8.2005, the departmental enquiry could have been initiated by the authority. Accordingly, it is contended that the delay under the circumstances was justified and should not be a ground for not allowing the enquiry to proceed. 14. Learned State counsel also submits that merely because there is an order of acquittal in favour of the petitioner, that by itself could not lead to a necessary consequence of conclusion of departmental proceeding and accordingly the challenge made by the writ petitioner, cannot be accepted by the Court. 15. Before considering the rival submissions of the learned Counsels, it must be noted that the respondents have not alleged that the petitioner had any hand in delaying of the departmental enquiry which was ordered on 28.4/2006. It must also be noted that by an interim order passed on 26.9.2006 on a miscellaneous application in the present case, this Court directed release of provisional pension to the petitioner along with arrear pay and allowances for the period under which the petitioner remained under suspension. The Court also further directed suspension of the departmental proceeding which on petitioner's retirement stood converted to a proceeding under Rule 9 of the Pension Rules. 16. At this stage, it might be appropriate to refer to some of the decisions relied upon by Mr. The Court also further directed suspension of the departmental proceeding which on petitioner's retirement stood converted to a proceeding under Rule 9 of the Pension Rules. 16. At this stage, it might be appropriate to refer to some of the decisions relied upon by Mr. S. Kar Bhowmik, learned Counsel for the petitioner to lend support to the submissions made by him. The two decisions of the Supreme Court in State of Madhya Pradesh v. Bani Singh and Anr., and in State of A.P. v. J. Radhakisan [1998] 2 SCR 693, have been relied upon to contend that in view of the inordinate delay in initiating the departmental enquiry, which has not been occasioned for any fault attributable to the employee, it would be totally unjustified to allow the enquiry to be conducted against the petitioner after about 8 years when the petitioner was placed under suspension in contemplation of such an enquiry. 17. It is seen from the above decisions that when there is no satisfactory explanation for the inordinate delay in starting the enquiry, it would be unfair to permit a departmental enquiry to proceed at a much belated stage as it will not only defeat justice but would also cause serious prejudice to the charged employee. Therefore, the Supreme Court held that unless it can be shown that the employee concerned is to be blamed for the delay or when there is a proper and acceptable explanation for delay in starting the departmental enquiry, delayed departmental enquiries ought not to be permitted. 18. Learned counsel for the petitioner has also relied upon the Supreme Court decision reported in (1999) 3 SCC 67, Capt. M. Paul Anthony v. Bharat Gold Mines Ltd. and also the decision in AIR 2006 SCW 2709 , G.M. Tank v. State of Gujarat and Anr. to contend that since the criminal proceeding and the departmental proceeding arise out of the same set of facts and as they are sought to be proved by the same set of witnesses and since the Criminal Court has already acquitted the petitioner by holding the charge to be not maintainable, it may not be justified to permit the departmental enquiry as no challenge to the acquittal order dated 6.8.2005 has been made by the State. 19. 19. In the instant case as can be seen from the charge in the criminal trial and the charge indicated in the impugned charge memo dated 28.4.2006 that there is hardly anything to distinguish one charge from the other and it can be said that the charges against the petitioner for the criminal trial and the departmental enquiry are substantially the same. It is also noticed that the several witnesses who were to be relied upon to prove the charge during departmental enquiry were also witnesses in the trial and from the evidence adduced by these witnesses, the charge against the petitioner could not be established in the trial. 20. It can be said that the charge, evidence, witnesses and the circumstances in the instant case are one and the same and the Criminal Court on examination of all aspects concluded that the guilt against the petitioner could not be proved. 21. Under such circumstances, having regard to the decisions relied upon by the petitioner, I am of the view that it would not be justified to permit the disciplinary authority to initiate a departmental enquiry on the same set of facts with practically the same set of witnesses as the initiation of such an enquiry at a belated stage after acquittal of the petitioner would cause serious prejudice to the petitioner. 22. It is found from the learned trial Court's decision that the very basis of the charge of misappropriation against the petitioner is not established as the cash amount (Rs. 3,86,898/-) supposed to be entrusted to the petitioner was not correctly reckoned and, in fact, an amount of Rs. 3,86,843/- is to be deducted from the said cash balance as the said amount was referable to cheques and Bank drafts drawn up from the cash balance. Thus, the conclusion reached on the basis of the audit report relied upon by the learned trial Court was that defalcation, if any, is only for a sum of Rs. 55/- and it is unlikely that a Cashier would be misappropriating a sum of Rs. 55/-only. 23. In view of the categorical finding by the trial Court that the charge itself is not established, it can be concluded that acquittal of the petitioner is not a technical acquittal but is a clear acquittal referable to the merit of the charge. 55/- and it is unlikely that a Cashier would be misappropriating a sum of Rs. 55/-only. 23. In view of the categorical finding by the trial Court that the charge itself is not established, it can be concluded that acquittal of the petitioner is not a technical acquittal but is a clear acquittal referable to the merit of the charge. In view of the fact that the petitioner has been given acquittal on the very same set of charge as is sought to be enquired into in the impugned departmental enquiry and since the said charge is sought to be established by the same set of witnesses and since the enquiry is sought to be conducted at a much belated stage after over 8 years of petitioner's suspension on 15.1.1997, I am of the view that it would be unfair and unjust to permit the departmental enquiry to proceed as it would cause serious prejudice to the charged employee who has already retired from service. Accordingly, the impugned decision dated 28.4.2006 is held to be unsustainable and the same is quashed. 24. As regards the other claims made by the petitioner for granting of service benefits which was allegedly denied to him because he was under suspension from 15.1.1997 till his superannuation on 30.4.2006,1 find that no pleading in support of the said prayer has been made in the writ petition. There is no indication that the petitioner was entitled to any promotion or that any promotional exercise was carried out during the period when he was under suspension. The petitioner has already retired from service on 30.4.2006 and it would not be proper, in the absence of necessary pleadings and materials to direct granting of service benefits to the petitioner. 25. The writ petition is allowed to the extent indicated above. 26. No cost. Petition allowed.