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2013 DIGILAW 757 (AP)

Union of India v. M. Bikshapathy

2013-09-13

L.NARASIMHA REDDY, S.V.BHATT

body2013
Judgment : L. Narasimha Reddy, J. 1. In this batch of writ petitions, a common order, dated 16.04.2012, passed by Hyderabad Bench of Central Administrative Tribunal in O.A.No.227 of 2011 and batch is challenged. 2. The sole respondent in the respective writ petitions filed the O.As., assailing the charge memos, dated 23.02.2011, issued to them, proposing to conduct enquiry into the alleged acts of misconduct. The gist of the proceedings is that the respondents were functioning as casual labourers with temporary status in Bharat Sanchar Nigam Limited. During the course of enquiry for regularization of the services of the persons working with temporary status, it was noticed that the documents on the basis of which the respondents are functioning were fabricated. Thereupon, the proceedings were initiated and the respondents were removed from service in the year 1998. A batch of O.As., were filed by the respondents alleging that they have been removed from service without conducting any enquiry. The O.As., were allowed and the Tribunal directed reinstatement of the respondents, leaving it open to the petitioners to take steps in accordance with law. 3. A criminal complaint was also filed against the respondents and two others and it was tried as C.C.No.1051 of 2005 by the Court of the VIII Metropolitan Magistrate, Rajendranagar alleging offences under Sections 420, 468 and 471 I.P.C. The trial Court convicted the respondents herein through judgment, dated 21.11.2005. In Criminal Appeal No.65 of 2005 filed by them, the Court of the V Additional District & Sessions Judge (Fast Track Court), Ranga Reddy District allowed the appeal through judgment, dated 11.12.2009, on technical grounds even while holding that the respondents submitted fabricated documents for securing employment. After the criminal proceedings assumed finality, the petitioners issued charge memos to the respective respondents. The principal ground urged by the respondents herein before the Tribunal was that there was undue delay in initiating proceedings, and issuance of charge memos at this length of time, cannot be sustained in law. The petitioners, on the other hand, pleaded that proceedings were initiated against the respondents soon after the fraud perpetrated by them was noticed and the delay was on account of the orders passed by the Tribunal on an earlier occasion as well as the pendency of the proceedings before the criminal Court. 4. Through a common order, the Tribunal has set aside the charge memos issued to the respondents. 5. 4. Through a common order, the Tribunal has set aside the charge memos issued to the respondents. 5. Sri R.S. Murthy, learned counsel for the petitioners, submits that it is a typical case where, the criminal Court recorded a finding to the effect that the documents submitted by the respondents were not genuine and still, the Tribunal has interdicted the disciplinary proceedings. He submits that there was absolutely no delay whatever on the part of the petitioners and they had simply to await the outcome of the criminal proceedings. He submits that even if there is delay, the same cannot be a factor in the instant case, since the allegation is about the fraud committed by the respondents. He further submits that the fraud, if proved, would unravel everything and the consequences thereof deserve to be wiped out, irrespective of the length of time. Sri Pavan Kumar, learned counsel for the respondents, on the other hand, submits that even according to the petitioners, the acts of alleged fraud have taken place in the year 1995 and the proceedings were initiated after more than a decade. He submits that while the trial Court has acquitted A1 and A6, the respondents herein were acquitted by the appellate Court by recording cogent reasons and it is not at all open to the petitioners to take a different view from the one taken by the criminal Court. 6. The concept of conferment of temporary status on the employees of various departments of the Central Government and in particular, the then Telecom Department was evolved on the basis of the orders passed by the Hon’ble Supreme Court. The persons who have been engaged on casual basis for a particular length of time were directed to be conferred with the temporary status so that their cases can be considered for regularization after lapse of further time. 7. The record does not disclose as to when the respondents were initially engaged as casual labourers. The only record that is available is that the temporary status was conferred upon them in the year 1995. Obviously by reposing confidence in its employees or not being suspicious enough, the concerned officials extracted the service from the respondents on the basis of such documents. The only record that is available is that the temporary status was conferred upon them in the year 1995. Obviously by reposing confidence in its employees or not being suspicious enough, the concerned officials extracted the service from the respondents on the basis of such documents. It was only when the matter was examined in detail in the context of conferment of regular status, that it was found that the documents on the basis of which the respondents are working, are not genuine. 8. The rules framed and the procedure prescribed by Bharat Sanchar Nigam Limited provide for termination of services of the persons working on temporary status without conducting any enquiry, if any illegality or misconduct is found. Obviously for that reason, the petitioners terminated the services of the respondents by indicating the reasons, namely that the documents relied upon by them are found to be fabricated. When the respondents approached the Tribunal, a view was taken to the effect that enquiry ought to have been conducted and the order of termination was set aside. It is under the directions issued by the Tribunal that an Enquiry Officer was appointed. However, there was initiation of criminal proceedings before the concerned Courts, against the respondents. The trial Court found A2 to A5 i.e. the respondents herein guilty and acquitted A1 and A6. The lower appellate Court did not record any finding to the effect that the charge framed against the respondents is not proved. It is relevant to take note of the observation of the trial Court, which reads as under: “The dishonest action of the accused shall result in losses to the deceived. Then only the person is liable to be punished for offences under Section 420 I.P.C. Here in this case all the departmental people who are examined by prosecution states that accused produced the documents. They secured employment, worked as temporary mazdoors but the department had not sustained nor suffered any loss by the action of accused 2 to 5. They worked for the Department, rendered services and received wages. No monetary loss sustained by Department. It is not deposed by any one that Telecom Department suffered loss or reputation. One more important ingredient is the accused should know that the documents used by them are forged. According to investigation A6 prepared the documents, handed over to A1. They worked for the Department, rendered services and received wages. No monetary loss sustained by Department. It is not deposed by any one that Telecom Department suffered loss or reputation. One more important ingredient is the accused should know that the documents used by them are forged. According to investigation A6 prepared the documents, handed over to A1. A1 obtained money from A2 to A5 and gave it to them. Nobody informed A2 to A5 that they are forged documents and in spite of such knowledge A2 to A5 have produced before Telecom authorities. The I.O. did not collect such evidence and the vital link in this offence is missing. The Accused 2 to 5 should know that they were given forged documents and having knowledge that they are in possession of fraudulent documents, and used them in the department to secure job. This intention of cheating by A2 to A5 is not proved by the prosecution. In other words the prosecution had failed to prove deceitful intention on the part of accused though they produced fraudulent documents. In fact, A2 to A5 were behaving that they are genuine documents.” 9. This only discloses that the lower appellate Court proceeded on the footing that the documents relied upon by the respondents were not genuine, but all the same, the respondents cannot be held guilty of offence under Section 420 I.P.C. because the Department did not incur any monetary loss. As regards the offences under Sections 468 and 471 I.P.C., the basis for acquittal indicated by the trial Court was that nobody has seen the respondents fabricating those documents. It is after the proceedings in the criminal Court assumed finality, that the petitioners issued charge memos to the respondents. 10. If one views the entire episode in isolation, it is possible to form an opinion that there was undue delay in the initiation of the proceedings. However, if the various events that have been referred to above, are taken into account, it cannot at all be stated that there is delay. 11. Assuming that there is delay and the proceedings came to be initiated for the first time in the year 2011, still, they cannot be interdicted. The reason is that the allegation is about fraud and fabrication of documents to secure employment into a Government or public service. 11. Assuming that there is delay and the proceedings came to be initiated for the first time in the year 2011, still, they cannot be interdicted. The reason is that the allegation is about fraud and fabrication of documents to secure employment into a Government or public service. Notwithstanding the finding recorded by the trial Court or acquittal in the criminal cases, the department is entitled to examine the matter from its own perspective and take its own decision. It is fairly well settled that fraud, if proved, would unravel everything and the defences of delay and latches are not available in such cases. That would provide a further impetus to an already scam ridden society. 12. The writ petitions are allowed and the orders impugned in them are set aside. It is needless to mention that the Enquiry Officer shall give reasonable opportunity to the respondents and conclude the proceedings at the earliest. There shall be no order as to costs. 13. The miscellaneous petitions filed in these writ petitions shall also stand disposed of.