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2016 DIGILAW 1849 (ALL)

DAYA SHANKAR MISHRA v. STATE OF U. P.

2016-05-13

PRABHAT CHANDRA TRIPATHI, TARUN AGARWALA

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JUDGMENT Hon’ble Prabhat Chandra Tripathi, J.—The petitioner Daya Shanker Mishra has preferred this writ petition to issue a writ, order or direction in the nature of certiorari to quash/set aside the judgment/order dated 8.3.2016 passed by the respondent No. 2, the State Public Services Tribunal and also to issue a writ, order or direction in the nature of certiorari to quash/set aside the punishment order dated 21.8.2001 alongwith the orders dated 7.2.2002 and 30.12.2013 passed on the appeal and the review representation. 2. The facts of this writ petition in narrow compass are enumerated as follows: (A) The petitioner was appointed as Lower Division Clerk on 10.5.1979 and thereafter lastly, promoted to the post of the Head Clerk/Office Superintendent in the office of the A.R.T.O. (Admn.), District Chandauli. After attaining the age of superannuation, the petitioner retired on 31.5.2012. The petitioner while being posted as Senior Clerk in the office of the A.R.T.O. (Admn.), District Chandauli was placed under suspension by order dated 14.5.1999 passed by the respondent No. 4 due to alleged financial irregularities of depositing less amount to the tune of Rs. 20,655/- only (Rupees Twenty Thousand Six Hundred Fifty Five only) in the Government Treasury. Mr. V.K. Ojha, R.T.O., District Varanasi, the Enquiry Officer served a charge-sheet upon the petitioner on 12.4.2000. The petitioner filed a detailed written reply to this, wherein he denied the charges levelled against him. Several short comings were mentioned by the petitioner in his aforementioned reply. After the submission of the written reply to the show-cause notice, the respondent No. 4 awarded the punishment of “reversion and censure entry” to the petitioner by the impugned punishment order dated 21.8.2001. Since the petitioner was acquitted by the competent Court of the law, therefore, the petitioner ought to have been restored on his original post of Senior Clerk with all the consequential service benefits. The respondent filed an Appeal No. 01/2011 against the judgment and order of the Court of the Chief Judicial Magistrate, District Chandauli. The said appeal was dismissed by the Court of the learned Sessions Judge, District Chandauli vide order dated 2.6.2011. (B) The petitioner after his retirement preferred a review representation to the respondent No. 3 on 7.10.2013 for quashing the impugned punishment order and also filed Civil Misc. The said appeal was dismissed by the Court of the learned Sessions Judge, District Chandauli vide order dated 2.6.2011. (B) The petitioner after his retirement preferred a review representation to the respondent No. 3 on 7.10.2013 for quashing the impugned punishment order and also filed Civil Misc. Writ Petition No. 19652 of 2013 (Daya Shankar Mishra v. State of U.P. and 3 others) before this Hon’ble Court regarding to issue a writ, order or direction in the nature of mandamus commanding the respondent No. 3 to decide the review representation dated 22.2.2013 which was dismissed on 11.4.2013. 3. Heard the learned counsel for both the parties and carefully studied the file. 4. The main argument of the counsel for the petitioner is that; since the petitioner has been acquitted in the Criminal Case No. 1859 of 2005 (State v. Daya Shankar Mishra) arising out of Case Crime No. 22 of 1999, under Sections 409, 467, 468 and 420 I.P.C., Police Station Chandauli, District Chandauli by the Court of the Chief Judicial Magistrate, District Chandauli vide its judgment and order dated 6.9.2005 and more so, it’s Criminal Appeal No. 01/2011 has been dismissed by the Court of the learned Sessions Judge, District Chanduli by it’s order dated 2.6.2011, the impugned order dated 21.8.2001, reverting the petitioner to the post of the Junior Clerk in the pay scale of Rs. 3050-75-4590 and awarding censure entry and the appellate order dated 6.2.2002 are liable to be quashed. 5. The departmental enquiry and the criminal case proceed on different procedure(s). A criminal trial held by the Court of the law follows the procedure enunciated in the Criminal Procedure Code and appreciation of the evidence is based on the principles of the Evidence Act. 6. Whereas, the departmental proceedings are totally different. They follow the principles laid down in the Government Servant Conduct Rules. The provisions of the Government Servant Conduct Rules play the pivotal role in conducting the departmental enquiry. 7. In the criminal trial to establish the guilt; onus of proof strictly lies upon the prosecution, whereas in a disciplinary proceedings this element is totally absent, even preponderance of probabilities is sufficient. 8. The Supreme Court in the case of Deputy Inspector General of Police and another v. S. Samuthiram, AIR 2013 SC 14 , has observed as under: “17. In the criminal trial to establish the guilt; onus of proof strictly lies upon the prosecution, whereas in a disciplinary proceedings this element is totally absent, even preponderance of probabilities is sufficient. 8. The Supreme Court in the case of Deputy Inspector General of Police and another v. S. Samuthiram, AIR 2013 SC 14 , has observed as under: “17. This Court, in Southern Railway Officers’ Association v. Union of India, (2009) 9 SCC 24 : ( AIR 2010 SC 1241 : 2010 AIR SCW 548), held that acquittal in a criminal case by itself cannot be a ground for interfering with an order of punishment imposed by the Disciplinary Authority. The Court reiterated that order of dismissal can be passed even if the delinquent officer had been acquitted of the criminal charge. 20. We are of the view that the mere acquittal of an employee by a criminal Court has no impact on the disciplinary proceedings initiated by the Department.” 9. The Supreme Court in the case of State of West Bengal and others v. Sankar Ghosh, AIR 2014 SC 405 , has observed as under: “18. Above rule indicates that even if there is identity of charges levelled against the respondent before the Criminal Court as well as before the Enquiry Officer, an order of discharge or acquittal of a police officer by a Criminal Court shall not be a bar to the award of the departmental punishment.” 10. Since the petitioner was punished in the year 2001 and his appeal was also dismissed on 7.2.2002 but the petitioner did not stir his grievances. Simply by moving a review petition in the garb of filing a fresh case to quash the order will be of no avail. 11. The petitioner in his review representation dated 7.10.2013 to the Transport Commissioner, Uttar Pradesh, Lucknow has admitted that he has deposited Rs. 20,155/- only (Rupees Twenty Thousand One hundred Fifty Five only) in the Government Treasury, which amounts an admission of temporary embezzlement committed by the petitioner. 12. Fiduciary relationship between the employer and the employee mainly hinges upon the element of trust and reliance. 13. Once this element is wiped-out, the citadel of the trust crumbles down. 14. Moreover, Writ-A No. 19652 of 2013 (Daya Shankar Mishra v. State of U.P. and 3 others) vide order of this Court dated 11.4.2013 was dismissed. 15. 12. Fiduciary relationship between the employer and the employee mainly hinges upon the element of trust and reliance. 13. Once this element is wiped-out, the citadel of the trust crumbles down. 14. Moreover, Writ-A No. 19652 of 2013 (Daya Shankar Mishra v. State of U.P. and 3 others) vide order of this Court dated 11.4.2013 was dismissed. 15. The petitioner in order to circumvent the law has again preferred this writ petition. 16. Having heard the learned counsel for the parties, we do not find any error in the impugned order passed by the Tribunal. 17. The writ petition is dismissed.