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2018 DIGILAW 599 (ORI)

J. v. R. Krishna Rao VS State of Orissa

2018-06-19

D.P.CHOUDHURY

body2018
JUDGMENT DR. D.P. CHOUDHURY, J. - Challenging has been made to the framing of charge under Sections 409/477-A of the Indian Penal Code against the petitioner by the learned Sub-Divisional Judicial Magistrate, Paralakhemundi in G.R. Case No. 525 of 2002. 2. The unshorn details of the case of the prosecution in brief is that the petitioner was working as Accountant in Urban Cooperative Bank Limited, Paralakhemundi on being appointed on 01.11.1993. While discharging his duties as in-charge Branch Manager, the authority started disciplinary proceeding against him on the allegation that he has misappropriated Bank funds. Thereafter he preferred I.D. Case No. 23 of 2000 under Section 10(1) read with Section 12(1) of the Industrial Disputes Act, 1947 (hereinafter called “the Act”). In that labour case, the learned Presiding Officer, Labour Court held that the dismissal of the petitioner from the post was illegal and improper and at the same time directed the Management to reinstate the petitioner. 3. After reinstatement, the opposite party No.2 again lodged F.I.R. in Paralakhemundi Police Station on 18.11.2002 for misappropriation Bank funds of Rs. 1,94,300/- by the present petitioner as has been detected by the audit during the year 1995-1996. 4. Be it stated that basing on the audit report, Departmental enquiry was started and the petitioner was found guilty of such charges of breach of fidelity, fraud, forgery and misappropriation. Then the General Body authorized the President and Secretary to lodge F.I.R. against the petitioner. Accordingly F.I.R. was lodged but no action was taken. Therefore, the Assistant Registrar of the Cooperative Society directed to lodge a fresh F.I.R. against the present petitioner and accordingly F.I.R. was lodged vide Paralakhemundi P.S. Case No. 258 of 2002 for the offence under Sections 409/477 (A) of I.P.C. and accordingly after investigation, charge-sheet was submitted. 5. Be it stated that on 27.7.2005 charge was framed under Sections 406/477(A) of I.P.C. against the petitioner which was read over and explained to the petitioner who pleaded not guilty and case was posted for hearing. Later on the petitioner filed a petition under Section 239 of Cr.P.C. to discharge him but the learned Magistrate rejected the prayer. Hence, the present petition is filed challenging the order dated 27.7.2005. 6. Although the opposite party No. 2 had made appearance, remained absent at the time of hearing. None appears on behalf of the opposite party No. 2. 7. Hence, the present petition is filed challenging the order dated 27.7.2005. 6. Although the opposite party No. 2 had made appearance, remained absent at the time of hearing. None appears on behalf of the opposite party No. 2. 7. SUBMISSION Learned counsel for the petitioner submitted that the F.I.R. against the petitioner is false and fabricated and it is a design to take revenge since the petitioner has been reinstated by the order of the Labour Court. When there was allegation of misappropriation and Departmental Proceeding was dropped by reinstating him, any further proceeding of misappropriation in the criminal case is not valid. According to him, the report of the special audit or audit cannot be the basis to make out a prima facie case and the opposite party; has filed to make out a case under Sections 409/477 (A) of I.P.C. against the present petitioner. 8. Learned counsel for the petitioner further submitted that there is no basis for framing charge under Sectins 409/477(A) of I.P.C. against the present petitioner as the materials supporting such framing the charge are not available. 9. Learned counsel for the petitioner submitted that the petitioner being entrusted with the work of Accountant, he was never entrusted with cash, the Branch Manager and the Secretary of the Cooperative Bank used to verify the account of the petitioner. Since in the instant case, no allegation was against the cashier or the Branch Manager and the then Secretary was actually responsible for any fraud in the Bank, the petitioner cannot be held responsible for such lapses. Even if the entire materials on record are relied on, there is no prima facie case against the petitioner. Learned Magistrate without going to the deep of the case has framed charge illegally which should be quashed. 10. Learned Additional Standing Counsel without disputing the facts submitted that the criminal proceeding cannot depend on the Departmental Proceeding. The petitioner cannot take the plea about dropping of the departmental proceeding of his reinstatement in job. When the allegation against the petitioner was quashed by the Labour Court, under the said order he has been only reinstated. But, the petitioner being the Accountant was entrusted with the cash and due to misappropriation, he is solely responsible for this. Apart from this, there is no any mistake on the part of the learned Magistrate to frame charge. When the allegation against the petitioner was quashed by the Labour Court, under the said order he has been only reinstated. But, the petitioner being the Accountant was entrusted with the cash and due to misappropriation, he is solely responsible for this. Apart from this, there is no any mistake on the part of the learned Magistrate to frame charge. Since prima facie case is made out, rightly charge has been framed. Hence the petition being devoid of merit, should be rejected. DISCUSSION 11. It is admitted fact that the petitioner was the employee of the Urban Cooperative Bank Limited (hereinafter called ‘the Bank’). It is admitted fact that he has been proceeded departmentally for misappropriation of the Bank funds. It is not in dispute that the disciplinary action was challenged before the Labour Court and the Labour Court directed for reinstatement of the petitioner as the natural justice of the petitioner was violated. It is also not in dispute that he was reinstated. 12. The copy of the W.P.(C) No. 3838 of 2002 shows that the opposite party No.2 has filed a writ application before this Court and in that writ application the learned Single Judge upheld the decision of the Labour Court. Against that decision of the learned Single Judge, it appears the Writ Appeal No. 216 of 2009 was filed before the Bench of Hon’ble the Chief Justice. That Writ Appeal was dismissed confirming the order of the Labour Court. So, ultimately the order of reinstatement was held operative. 13. Basing on the audit report, the enquiry was held and the petitioner was found guilty of fidelity, fraud, forgery and misappropriation. The Secretary was authorized to receive F.I.R. but the Inspector of in-charge refused to receive F.I.R. So, the Assistant Registrar was directed to lodge F.I.R. for which the F.I.R. was lodged out of which the present petition arises. It is settled in law that no criminal liability can be attached basing on the audit report but here enquiry has been held in pursuance of the audit report. Moreover, it is settled in law that the reinstatement upon the departmental enquiry cannot be a ground not to proceed in criminal case against the delinquent. It is settled in law that no criminal liability can be attached basing on the audit report but here enquiry has been held in pursuance of the audit report. Moreover, it is settled in law that the reinstatement upon the departmental enquiry cannot be a ground not to proceed in criminal case against the delinquent. On the other hand, the criminal proceeding and departmental proceeding can run parallel inasmuch as in the criminal trial the prosecution is required to prove the charge beyond all shadow of doubts whereas in Departmental Proceeding the principle of preponderance of probability would apply to decide the case of delinquent. This principle is well discussed in the judgment Depot Manager, Andhra Pradesh State Road Transport Corporation –V- Mohd. Yousif Miya etc; AIR 1997 SC 2232 . 14. In the instant case, no doubt the petitioner was suspended on the charge of misappropriation and forgery. On the representation of the petitioner he was reinstated. Again on the report of the audit objection he was dismissed form service. He challenged the same before the learned Presiding Officer, Labour Court, Paralakhemundi vide I.D. Case No. 27 of 2000. It is only revealed from the above order of this Court passed in the writ petition or in the writ appeal that natural justice has been violated and accordingly he has been reinstated. Also the order passed by the Labour Court on merit of the case has also reached finality by virtue of the order of this Court, as aforesaid. 15. It appears from the material that in the meantime after disposal of the case by the learned Labour Court, the opposite parties filed F.I.R. and accordingly investigation was made under the provisions of Cr.P.C. and finally the charge sheet was submitted and cognizance of offence was taken. The impugned order shows that charge for the offence under Sections 409/477 (A) of I.P.C. was framed. It is only available from the observation of the learned Labour Court at para-13 that nothing has been shown before that authority that criminal case has been initiated against the petitioner for punishment. So, the Labour Court only decided with regard to the Departmental Proceeding without going into the merit of the case in criminal side which is also obvious because it has no authority to the nitty kitty of investigation in the criminal case. So, the Labour Court only decided with regard to the Departmental Proceeding without going into the merit of the case in criminal side which is also obvious because it has no authority to the nitty kitty of investigation in the criminal case. Even if the order of the Labour Court has reached finality by the order of this Court, the investigation in criminal case being different from the enquiry conducted under the I.D. Act and the learned S.D.J.M has already framed charge after going through the matter on record after finding out a prima facie case, there is nothing to interfere with it. 16. In terms of the above discussion, this Court is of the view that the criminal proceeding is to continue and the order of the Departmental Proceeding has no any effect on it. It would be needless to say that the trial is to be expedited as it is a matter of 2002. 17. The learned S.D.J.M., Paralakhemundi is directed to dispose of the case within a period of two months from today by resorting to the day to day hearing. The petitioner is also directed to cooperate with the trial of the case for its early disposal. Hence, the CRLMC being devoid of merit stands dismissed. CRLMC dismissed.