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2009 DIGILAW 251 (ORI)

DHARANIDHAR JENA v. UNION OF INDIA (UOI)

2009-03-23

B.N.MAHAPATRA, B.S.CHAUHAN

body2009
JUDGMENT : B.S. Chauhan, C.J. - This Writ Petition has been filed against the Judgment and order of the Central Administrative Tribunal, Cuttack Bench, Cuttack (hereinafter called the 'Tribunal') dated 1.1.2002 ((Annexure-5) rejecting the O.A. No. 329 of 1997 filed by the Petitioner for quashing the departmental proceedings. 2. The facts and circumstances giving rise to this case are that the Petitioner was appointed as Extra Departmental Branch Post Master at Gunupur Branch Post Office, Gunupur in the year 1958. In the year 1965 he was put under suspension due to institution of criminal proceedings against him, but he was acquitted of all the charges. Thereafter in 1975 he demanded for his reinstatement in service. But his demand was turned down by the Department as Departmental Proceedings were initiated on the charges of misappropriation. On conclusion of the proceedings Petitioner was dismissed from service. Against that order, the Petitione preferred a Writ Petition bearing No. OJC No. 1082 of 1977 before this Court and vide Judgment and Order Dated 18.3.1982, this Court allowed the Writ Petition and quashed the order of dismissal on the ground that Rule-8 of Extra Departmental Agents (Conduct and Service) Rules, 1964 under which the proceedings had been conducted had been held to be ultra vires of Article 311(2) of the Constitution of India. Thereafter the Petitioner was reinstated in service. Again on 7.3.1987, Petitioner was put under suspension on the charges of mis-appropriation. On 22.4.1997, the Petitioner was served with a letter to attend the enquiry on 28.4.19997, but he did not attend the enquiry. Another letter was sent to the Petitioner on 16.5.1997 to attend the enquiry on 30.5.1997, but he did not attend the enquiry. Against the order of suspension, the Petitioner preferred O.A. No. 329 of 1997 and the Tribunal passed an interim order to the effect that Departmental Proceeding may continue, but no final order would be passed without leave of the Tribunal. The Tribunal vide Judgment and Order Dated 1.1.2002 dismissed the said application rejecting the prayer of the Petitioner to quash the Departmental Proceedings initiated against him and directed the Respondents to complete the enquiry within a period of 90 days from the date of receipt of copy of the order, if not already completed. Hence this petition. 3. Mr. The Tribunal vide Judgment and Order Dated 1.1.2002 dismissed the said application rejecting the prayer of the Petitioner to quash the Departmental Proceedings initiated against him and directed the Respondents to complete the enquiry within a period of 90 days from the date of receipt of copy of the order, if not already completed. Hence this petition. 3. Mr. S. Palit, Learned Counsel appearing for the Petitioner has submitted that there was inordinate delay on the part of the Department in issuing the charge sheet, therefore, in spite of the fact that issue of delay has not been taken by the Petitioner in his Original Application, the Tribunal ought to have entertained the application on this ground and quashed the Departmental Proceedings. Hence, the petition deserves to be allowed and the proceedings initiated against the Petitioner should be quashed. 4. On the other hand, Miss. S. Mohanty, Learned Counsel for the Department has vehemently opposed the petition contending that the Petitioner has a very bad service record. At initial stage of his service he faced criminal proceedings, but he was acquitted of the charges by the criminal Court. In the Departmental Proceedings, he faced the charges of misappropriation and embezzlement and as the same stood proved, punishment of dismissal was awarded. However, Petitioner succeeded on technical ground that the Rule under which the enquiry had been initiated and concluded, stood declared ultra vires and unconstitutional by the court and thus, the order of his dismissal was set aside vide Judgment and Order Dated 18.3.1982 in O.J.C. No. 1082 of 1977 by this Court. 5. Subsequent thereto, after his reinstatement the Petitioner did not improve his behaviour and embezzled money several times. He accepted deposit of Rs. 500, but did not deposit in the Treasury and the same remained with him for a period of more than five years. Again a sum of Rs. 300 was not deposited for more than five years and sum of Rs. 30 which was accepted by him was also not deposited for several years. Therefore, he was in the habit of embezzling the public money. During the course of preliminary enquiry, he did not participate. When the charges were issued in 1997, he immediately approached the Tribunal and obtained interim order. There was delay in issuing the charges because the Department wanted to prosecute the Petitioner in criminal cases, but could not succeed. Therefore, he was in the habit of embezzling the public money. During the course of preliminary enquiry, he did not participate. When the charges were issued in 1997, he immediately approached the Tribunal and obtained interim order. There was delay in issuing the charges because the Department wanted to prosecute the Petitioner in criminal cases, but could not succeed. Undoubtedly, the amounts so embezzled several times was not very high;, but it is his intention to embezzle and not the amount of money so embezzled which is a determining factor as to whether the Petitioner could be permitted to continue in service. The issue of delay was not pleaded before the Tribunal, which is a basic question of fact, and thus, there was no occasion for the Opposite Parties to contradict the same or to explain for delay in issuing the charge-sheet. Hence, no fault can be found with the impugned Judgment and order. The petition is liable to be dismissed. 6. We have considered the rival submissions made by the Learned Counsel for the parties and perused the record. 7. The undisputed facts remain that the Petitioner had been put to trial, however was acquitted of all the charges. Thereafter, Departmental Proceedings were initiated against him and he was found guilty of serious charges of misappropriation and thus, was dismissed from service. His dismissal order was set aside by this Court vide Judgment and Order Dated 18.3.1982 passed in OJC No. 1082 of 1977 on technical grounds relying upon the Judgment in Gokulananda Das v. Union of India 1976(1) CLT 445; that Rule 8 of E.D. Agents (Conduct & Service), Rules, 1964 under which the enquiry had been concluded had been struck down being ultra vires and unconstitutional. 8. After the Judgment and order of this Court, Petitioner was reinstated in service. However, it has been alleged by the Department that he had misappropriated on three occasions and did not deposit the money received by him for a long five years. In such a fact situation, when the charge sheet was issued to him in 1997, he immediately approached the Tribunal for quashing the proceedings. 9. The issue involved herein is no more res integra. In such a fact situation, when the charge sheet was issued to him in 1997, he immediately approached the Tribunal for quashing the proceedings. 9. The issue involved herein is no more res integra. The Supreme Court in Union of India v. Ashok Kacker, 1995 Supp (1) SCC 180 while dealing with a matter where the employee had challenged the charge sheet, clearly held that the Tribunal entertained the application at a premature stage. It was observed as follows: ...In our opinion, this was not the stage at which the Tribunal ought to have entertained such an application for quashing the charge-sheet and the appropriate course for the Respondent to adopt is to file his reply to the charge-sheet and invite the decision of the disciplinary authority thereon. This being the stage at which the Respondent had rushed to the Tribunal, we do not consider it necessary to require the Tribunal at this stage to examine any other point which may be available to the Respondent or which may have been raised by him. 10. In Secretary to Government, Prohibition and Excise Department Vs. L. Srinivasan the Supreme Court set- aside the order of the Tribunal by which the departmental enquiry and the charge-sheet were quashed on the ground of delay in initiation of the disciplinary proceedings and it was observed as follows: Order Dated 12.11.1993 in Nos. 1702 of 1993 and 2206 of 1993 of the Tamil Nadu Administrative Tribunal, Madras is in question before us. The Respondent while working as Assistant Section Officer, Home, Prohibition and Excise Department had been placed under suspension. Departmental inquiry is in process. We are informed that charge-sheet was laid for prosecution for the offences of embezzlement and fabrication of false records etc. and that the offences and the trial of the case is pending. The Tribunal had set aside the departmental enquiry and quashed the charge on the ground of delay in initiation of disciplinary proceedings. In the nature of the charge, it would take a long time to detect embezzlement and fabrication of false records which should be done in secrecy. It is not necessary to go into the merits and record any finding on the charge levelled against the charged officer since any finding recorded by the Court would gravely prejudice the case of the parties at the enquiry and also at the trial. It is not necessary to go into the merits and record any finding on the charge levelled against the charged officer since any finding recorded by the Court would gravely prejudice the case of the parties at the enquiry and also at the trial. Therefore, we desist from expressing any opinion on merit or recording any of the contentions raised by the Counsel on either side. Suffice it to state that the Administrative Tribunal has committed grossest error in its exercise of the judicial review. The member of the Administrative Tribunal appears to have no knowledge of the jurisprudence of the service law and exercised power as if he is an Appellate forum dehors the limitation of judicial review. This is one such instance where a member had exceeded his power of judicial review in quashing the Suspension order and charges even at the threshold. We are coining across such orders frequently putting heavy pressure on the Court to examine each case in detail. It is high time that it is remedied. 11. It was, therefore, emphasised by the Supreme Court that even by way of final order the departmental enquiry or the charge-sheet could not have been quashed. Thus, what could not have been done even at the final stage certainly could not have been done by way of any interim measure by the Tribunal. 12. It is settled legal proposition that even if the inquiry is initiated at a belated stage or there is a delay in the conclusion of the inquiry within a reasonable period the Court/Tribunal should not quash the charges without considering the gravity of the charges. Thus, the facts and circumstances of a particular case have to be examined and only after considering the gravity/magnitude of the charges the order should be passed. (Vide The State of Madhya Pradesh Vs. Bani Singh and another, ; State of Punjab and Others Vs. Chaman Lal Goyal, : Deputy Registrar, Cooperative Societies, Faizabad Vs. Sachindra Nath Pandey and Others, ; and Additional Supdt. of Police v. T. Natarajan 1999 SCC 646 ). 13. In P.D. Agrawal v. State Bank of India and Ors. (Vide The State of Madhya Pradesh Vs. Bani Singh and another, ; State of Punjab and Others Vs. Chaman Lal Goyal, : Deputy Registrar, Cooperative Societies, Faizabad Vs. Sachindra Nath Pandey and Others, ; and Additional Supdt. of Police v. T. Natarajan 1999 SCC 646 ). 13. In P.D. Agrawal v. State Bank of India and Ors. (2006) 8 SCC 776 , the Supreme Court considered the same issue and came to the conclusion as under: The validity of the disciplinary proceeding and/or justifiability thereof on the ground of delay or otherwise had never been raised by the appellant before any forum. It was not his case either before the Appellate Authority or before the High Court that by reason of any delay in initiating the disciplinary proceeding he had been prejudiced in any manner whatsoever. It may be true that delay itself may be a ground for arriving at a finding that enquiry proceeding was vitiated in the event it is shown that by reason thereof the delinquent officer has been prejudiced, but no such case was made out.... In this case, as noticed herein before, the appellant did not raise the question of delay before any forum whatsoever. He did not raise such a question even before the disciplinary authority. He not only took part therein without any demur whatsoever, but, as noticed herein before, cross-examined the witnesses and entered into the defence. 14. Thus, while entertaining the submissions that inquiry should not be proceeded with such charge sheet which had been issued at a belated stage or the inquiry stood vitiated on account of the inaction of the employer, the Court has to consider the seriousness and magnitude of the charges and while doing so the Court must "weigh all the facts, both for and against the delinquent officers and come to the conclusion which is just and proper in the circumstances". 15. In State of Andhra Pradesh Vs. N. Radhakishan the Supreme Court as observed as under: It is not possible to lay down any predetermined principles applicable to all cases and in all situations where is a delay in concluding the disciplinary proceedings. Whether on that ground the disciplinary proceedings are to be terminated, each case has to be examined on the facts and circumstances in that case. Whether on that ground the disciplinary proceedings are to be terminated, each case has to be examined on the facts and circumstances in that case. The essence of the matter is that the Court has to take into consideration all the relevant factors and to balance and weight then to determine if it is in the interest of clean and honest administration that the disciplinary proceedings should be allowed to terminate after delay.... 16. A similar view has been reiterated in Food Corporation of India Ltd. v. V.P. Bhatia (1998) 8 SCC 131. 17. In Government of A.P. and Ors. v. V. Appala Swamy (2007) 14 SCC 49 , same view has been reiterated by the Hon'ble Supreme Court. While deciding the said case, reliance had been placed on the Judgments in Secretary to Government, Prohibition and Excise Department Vs. L. Srinivasan, ; P.D. Agrawal (supra); Deputy Registrar, Cooperative Societies, Faizabad Vs. Sachindra Nath Pandey and Others, ; and also referred to M.V. Bijlani Vs. Union of India (UOI) and Others, ). 18. In Prafulla Chandra Mohapatra Vs. State of Orissa and others the Apex Court held that initiation of departmental proceedings after acquittal of the employee by the Criminal Court on merit as well s on technical ground should not generally be resorted to after a long period merely being influenced by any observation made by the Criminal Court and it is not required merely on the ground that acquittal had been on a technical ground. While initiating the proceedings, the findings of Criminal Court should be examined properly. 19. In P.V. Mahadevan Vs. M.D., Tamil Nadu Housing Board the Hon'ble Supreme Court considered a similar issue where the charges had been of misappropriation and corruption and held that departmental proceedings should not be initiated at a much belated stage as it would be very prejudicial to the delinquent. More so, during the intervening period, as there had been an allegation of his disputed integrity and having facing the charge of corruption he had to suffer from unbearable mental agony and distress. More so, during the intervening period, as there had been an allegation of his disputed integrity and having facing the charge of corruption he had to suffer from unbearable mental agony and distress. 'The protracted disciplinary enquiry against a government employee should, therefore, be avoided not only in the interests of the government employee but in public interest and also in the interests of inspiring confidence in the minds of the government employees." As a matter of fact, the mental agony and sufferings of the delinquent due to the a protracted disciplinary proceedings would be much more than the punishment. For the mistakes committed by the department in the procedure for initiating the disciplinary proceedings, the employee should not be made to suffer. 20. In view of the above, the law can be summarised that normally in exercising power of judicial review the Court/Tribunal should not quash the disciplinary proceedings even on the ground of delay. There can be no strait-jacket formula for interfering with such proceedings. In exceptional circumstances, where the charges are very grave, the inquiry may be necessary even at a belated stage, but there must be satisfactory explanation for delay on the part of the department as the delinquent suffers from mental agony and distress during said proceedings. There must be sufficient evidence to prove the charges against him and initiation of the proceedings by the Department should be bona fide. 21. The instant case is required to be examined in the light of the aforesaid settled legal propositions. 22. Admittedly, the charges against the delinquent were grave in nature. In case the charges of misappropriation against the delinquent stands proved, no punishment other than that of dismiss ' can be awarded. The amount misappropriated may be small or large; it is the act of misappropriation that is relevant. Any sympathy shown in such cases is totally uncalled for and opposed to public interest. (vide Ruston & Hornsby (1) Ltd. v. T.B. Kadam AIR 1975 SC 2025 ; Municipal Committee, Bahadurgarh Vs. Krishan Behari and others, ; U.P. SRTC v. Basudeo Chaudhary, (1997) 11 SCC 370 ; Janatha Bazar (South Kanara Central Co-operative Whole Sale Stores Limited) Etc. Vs. The Secretary, Sahakari Noukarara Sangha Etc., ; Karnataka State Road Transport Corporation Vs. B.S. Hullikatti, ; Regional Manager, RSRTC v. Ghanshyam v. Sharma, (2002) 1 LLJ 234 SC; Divisional Controller, N.E.K.R.T.C. Vs. Krishan Behari and others, ; U.P. SRTC v. Basudeo Chaudhary, (1997) 11 SCC 370 ; Janatha Bazar (South Kanara Central Co-operative Whole Sale Stores Limited) Etc. Vs. The Secretary, Sahakari Noukarara Sangha Etc., ; Karnataka State Road Transport Corporation Vs. B.S. Hullikatti, ; Regional Manager, RSRTC v. Ghanshyam v. Sharma, (2002) 1 LLJ 234 SC; Divisional Controller, N.E.K.R.T.C. Vs. H. Amaresh, ; and U.P. State Road Transport Corporation Vs. Vinod Kumar, ). 23. In the instant case, the following charges had been framed. Article-I. That the said Sri Dharanidhar Jena while functioning as SDPM, Gunpur P.O. was found absent on 7.3.87 on duty and did not turn up thereafter and thereby failed to maintain devotion to duty. Article-II. That while Shri Dharanidhar Jena was functioning as EDPM, Gunpur P.O. during the period from 15.7.82 to 6.3.87 did not take into Govt. account the deposit of Rs. 500 accepted on 14.2.87 in SB A/c No. 121590 on the date of acceptance on subsequently thereafter resulting lose of Rs. 500 to the department and thereby violated the provisions contained in Rule-131 of Rules for Branch offices, sixth Edition (2nd print). Article-III. That while the said Shri Dharanidhar Jena was functioning as EDPM during the period from 15.7.82 to 6.3.87 did not credit into Govt. Account the deposit of Rs. 350 accepted on 14.2.87 in SB A/c. No. 122151 or subsequently thereafter resulting loss a Rs. 350 to the department and thereby violated the provisions contained in Rule 131 of Rules for Branch Offices, sixth edition (2nd print). Article-IV . That while the said Sri Dharnidhar Jena was functioning as EDPM during 15.7.82 to 6.3.87 accepted the deposit of Rs. 30 on 14.2.87 in RD A/c No. 4686 and did not credited into Govt. account on 14.2.87 or subsequently thereafter resulting loss of Rs. 30 to the Department and thereby violated the provisions contained in Rule-144 of Rules for Branch offices, sixth Edition (2nd print). 24. The conduct of the Petitioner had not been above board from the very beginning. He succeeded on technical ground and got the order of dismissal from service set aside in 1982 and he was reinstated. On the alleged charges of further embezzlement immediately after reinstatement, the Department tried to launch criminal case, but because of some reason could not succeed. Thus, there had been delay in issuing the charge sheet. He succeeded on technical ground and got the order of dismissal from service set aside in 1982 and he was reinstated. On the alleged charges of further embezzlement immediately after reinstatement, the Department tried to launch criminal case, but because of some reason could not succeed. Thus, there had been delay in issuing the charge sheet. Delay in issuing the charge-sheet itself cannot be the only ground to get the proceedings quashed. The gravity of charge is one of the factors which are to be taken into consideration when in exceptional circumstances, the Departmental Proceeding becomes liable to be quashed. 25. In the instant case, the charges are very grave in nature, and it is evident that Petitioner instead of improving his behaviour had allegedly been indulging in embezzlement time and again. 26. The relief sought by the Petitioner before the Tribunal has been as under: The enquiry proceeding be quashed declaring the same as illegal and arbitrary in as much as the same has been instituted under Rule 8 of the said Rules, 1964. 27. The Petitioner had not specifically pleaded the case of delay in his O.A. before the Tribunal. Therefore, there was no occasion for the Opposite Parties to furnish the explanation. It was only at the time of final hearing that an attempt was made on behalf of the Petitioner to agitate the issue. The Tribunal refused to entertain that argument on the ground that it is not permissible for the Court or Tribunal to travel beyond pleadings. 28. There can be no dispute to the settled legal proposition that the Court or Tribunal is not permitted to decide a case going out of pleadings of the parties nor the evidence led on a non-existing plea is permitted to be taken into consideration. (Vide Sri Mahant Govind Rao v. Sita Ram Kesho and Ors. (1898) 25 IA 195 (PC); Trojan and Co. Ltd. Vs. Rm. N.N. Nagappa Chettiar, ; Kishori Lal Vs. Mst. Chaltibai, ; Samant N. Balkrishna and Another Vs. V. George Fernandez and Others, ; Dalim Kumar Sain and Others Vs. Smt. Nandarani Dassi and Another, ; Dattatraya Vs. Rangnath Gopalrao Kawathekar (Dead) by his legal representatives and Others, ; Bhoona Bi and Anr. v. Gujar Bi AIR 1973 Mad 154 ; Dr. R.K.S. Chauhan and Anr. v. State of U.P. and Ors.; Commissioner of Income Tax, Calcutta Vs. V. George Fernandez and Others, ; Dalim Kumar Sain and Others Vs. Smt. Nandarani Dassi and Another, ; Dattatraya Vs. Rangnath Gopalrao Kawathekar (Dead) by his legal representatives and Others, ; Bhoona Bi and Anr. v. Gujar Bi AIR 1973 Mad 154 ; Dr. R.K.S. Chauhan and Anr. v. State of U.P. and Ors.; Commissioner of Income Tax, Calcutta Vs. Park Hotel (P) Ltd., 15 Park Street, Calcutta-16, ; Syed Dastagir Vs. T.R. Gopalakrishnasetty, ; Sankaran Pillai(dead) by Lrs. Vs. V.P. Venuguduswami and Others, ; J. Jermons Vs. Aliammal and Others, ; Life Insurance Corporation of India and Others Vs. Jyotish Chandra Biswas, ; Om Prakash Gupta Vs. Ranbir B. Goyal, ; and Ashutosh Gupta Vs. State of Rajasthan and Others, ). 29. Thus, the view taken by the Tribunal cannot be held to be unreasonable as it does not suffer from any illegality or infirmity. 30. Be that as it may, the writ is a discretionary relief. It is not issued merely because if it is lawful to do so. Once a factual stand is taken, it cannot be changed on any legal proposition whatsoever nor it is permissible for the Court to examine the correctness of the findings of fact unless it is found to be perverse being based on no evidence or contrary to evidence, as the Writ Court exercises its supervisory jurisdiction and not of Appellate forum. The purpose of the Writ Court is not only to protect a person from being subjected for violation of law but also to advance justice and not to thwart it. The Constitution does not place any fetter on the power of the extraordinary jurisdiction but leaves it to the discretion of the Court. However, being the power discretionary, the Court has to balance competing interest, keening in mind that interest of justice and public interest can coalesce in certain circumstances. (Vide Champalal Binani Vs. The Commissioner of Income Tax, West Bengal and Others, ; Ramniklal N. Bhutta and another Vs. State of Maharashtra and others, ; Chimajirao Kanhojirao Shirke and Another Vs. Oriental Fire and General Insurance Co. Ltd., ; Shama Prashant Raje Vs. Ganpatrao and Others, ; Life Insurance Corporation of India and Others Vs. Smt. Asha Goel and Another, ; Roshan Deen Vs. Preeti Lal, ; S.D.S. Shipping Pvt. Ltd. Vs. Jay Container Services Co. Pvt. Ltd. and Others, ; Chandra Singh Vs. Oriental Fire and General Insurance Co. Ltd., ; Shama Prashant Raje Vs. Ganpatrao and Others, ; Life Insurance Corporation of India and Others Vs. Smt. Asha Goel and Another, ; Roshan Deen Vs. Preeti Lal, ; S.D.S. Shipping Pvt. Ltd. Vs. Jay Container Services Co. Pvt. Ltd. and Others, ; Chandra Singh Vs. State of Rajasthan and Another, ; and K.D. Sharma v. Steel Authority of India and Ors. AIR 2008 SC 6654. 31. More so, it is settled legal proposition that Writ Court should not quash the order if it revives a wrong and illegal order. [Vide Godde Venkateswara Rao Vs. Government of Andhra Pradesh and Others, ; Maharaja Chintamani Saran Nath Shahdeo Vs. State of Bihar and Others, ; Mallikarjuna Mudhagal Nagappa and Others Vs. State of Karnataka and Others, ; and Chandra Singh (supra)]. 32. In A.M. Allison Vs. B.L. Sen the Apex Court held that Writ Court can refuse to exercise its jurisdiction as the writ proceedings cannot 'of course', if it is satisfied that there has been no failure of justice. 33. In Dal Singh v. King Emperor of India AIR 1917 PC 25 , the Privy Council held that in case the authority/Court has done substantial justice, the Appellate Court may not interfere even if the order was passed without jurisdiction or suffers from some kind of illegality. Same view has been reiterated in Mohammad Swalleh and Others Vs. Third Addl. District Judge, Meerut and Another, ; and Sree Jain Swetambar Terapanthi Vid.(S) Vs. Phundan Singh and Others, . 34. In Collector, Land Acquisition, Anantnag and Another Vs. Mst. Katiji and Others the Hon'ble Apex Court held as under: ...When substantial justice and technical considerations are pitted against each other, the cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being one.... 35. Therefore, Court has to examine the case with this angle also bearing in mind that cause of substantial justice cannot be defeated on mere technicalities. 36. In the facts and circumstances of the case, we do not see any ground to interfere with the impugned Judgment and order of the Learned Tribunal. The petition is accordingly dismissed. The opposite parties are directed to conclude the enquiry at the earliest. B.N. Mahapatra, J. 37. I agree. Final Result : Dismissed