Delhi High Court
M.K.Sharma vs Uoi & Ors. on 23 September, 2010
Author: Pradeep Nandrajog
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment Reserved On: 9th September, 2010
Judgment Delivered On: 23rd September, 2010
+ WP(C) 9306/2009
M.K.SHARMA ...Petitioner
Through : Mr.R.K.Handoo, Mr.Yoginder
Handoo and Mr.Aditya Chaudhary,
Advocates
Versus
UOI & ORS. ...Respondents
Through: Mr.Sachin Datta, Advocate with
Mr.Abhimanyu Kumar, Advocate
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MR. JUSTICE MOOL CHAND GARG
1. Whether the Reporters of local papers may be allowed
to see the judgment?
2. To be referred to Reporter or not?
3. Whether the judgment should be reported in the Digest?
PRADEEP NANDRAJOG, J.
1. The petitioner was working as Sub-Postmaster
Shamshabad, Sub-Post Office Agra. In May 2000, Babu Ram
the Assistant Superintendent Post Offices (Central Sub
Division) Agra lodged a complaint with Police Station
Shamshabad alleging that the petitioner had misappropriated
a sum of Rs.69,200/- using fake Kisan Vikas Patras (hereinafter
referred to as ―KVPs‖). On the basis of said complaint an FIR
No.208/2000 for offences under Sections 409 and 420, IPC was
registered.
2. On 08.06.2001 the Senior Superintendent of Post Offices,
Agra Division, Agra, the Disciplinary Authority of the petitioner
issued a charge sheet to the petitioner under Rule 14 of the
Central Civil Services (Classification Control and Appeal) Rules,
1965 listing the following articles of charge:-:-
―Article - I
While working as SPM Shamshabad, SO Agra
on 29-5-2000 Shri M.K. Sharma committed a grave
misconduct inasmuch as he discharged KVP for
Rs.85200/- and submitted paid voucher for
Rs.16000/- only alongwith discharge journal to Agra
HO. The said Shri M.K. Sharma discharged KVPs No.
15cc 950482 to 950485 Deno. Rs. 10000/- (40000
+ 29200/- as Intt.) on the basis of RBT No.43 and
failed to submit paid vouchers for Rs.69200/- and
thus misappropriated the amount of Rs.69200/-.
Thereby violating the provision of rule - 23 and 31
of PO SB Man. Vol. II. By acting in such a manner
the said Shri. M.K. Sharma also failed to maintain
absolute integrity, devotion to duty and acted in a
manner which is an unbecoming of a Govt. servant
as required under rule -3(i), (ii) & (iii) of CCS
(Conduct) rules - 1964.
Article - II
Shri M.K. Sharma while working as SPM
Shamshabad SO Agra committed a grave
misconduct as he discharged KVP No.15CC 950482
to 950485 Deno. Rs.10000/- worth Rs.69200/-
(40000 + 29200) but he failed to submit the paid
voucher along with KVP discharge journal of the
said denomination in lieu of such payment and also
to note the Regn. No. in the said Journal and thus
violated the provisions of rule-31 of PO SB Man. Vol.
II. By doing so, the said Shri M.K. Sharma also failed
to maintain absolute integrity, devotion to duty and
acted in a manner which is an unbecoming of a
Govt. servant as required under rule -3(i), (ii) & (iii)
of CCS (Conduct) rules - 1964.
Article - III
While working as SPM Shamsabad S.O. Agra
on 29-5-2000 Shri M.K. Sharma committed a grave
misconduct by discharging duties of SB counter PA
Shri Bhagwati Pd. As such he himself effected the
payment of KVPs, prepared rough account of SB
branch in Hand to Hand receipt book of counter PA
with a malafide intention. He also prepared
discharge journal while these duties were related to
counter PA as per memo of distribution of work of
the Post Office Shamsabad Agra. To conceal the
facts of his intention about alleged misappropriation
of Govt. money, the said M.K. Sharma infringed the
provisions of rule-4 of P&T Man. Vol VI Part-I and
avoided his supervisory duties. By doing so, the
said Shri M.K. Sharma also failed to maintain
absolute integrity, devotion to duty and acted in a
manner which is an unbecoming of a Govt. servant
as required under rule -3(i), (ii) & (iii) of CCS
(Conduct) rules - 1964.‖
3. An Inquiry Officer was appointed to record evidence and
submit a report. During inquiry the petitioner filed an
application before the Inquiry Officer seeking production of 21
documents and gave justification pertaining to the relevance
thereof for his defence. We may reproduce the document
sought to be produced, its relevance to the case and the
authority having custody thereof in a tabular form for a better
understanding. The summary of the same is as under:-
S. Identity of the Relevancy to Custodian
No. document the Case Authority
1. Attendance Register To confirm the S.P.M.
of Samsabad P.O. attendance of Samsabad or
for the period 29- myself and S.S.P.O.'s Agra
05.2000 to 31-05- other staff
2. Original daily a/c ofContaining Sr.P.M. Agra H
Samsabad P.O.entry of P.O.
dated 29-05-2000 to disputed
31-05-2000 certificate
3. D.O.W. of Samsabad To confirm the S.S.P.O's Agra
P.O. in force during duties relating or S.P.M.
may 2000 to K.V.P. Samsabad
mention in the
charge sheet
4. D.O.W. of Agra H.O. To confirm the Sr. P.M. H.P.O.
of Sub a/c, mail and timings of Agra
S.B. branch inforce receipt of mails
during may 2000 with the KVP's
in S.B. branch
and Sub A/c
branch
5. Original S.O. slip of To confirm the do
Agra H.O. to date of
Samsabad S.O. for information to
29--5-2000 to 01-6- Samsabad
2000 regarding
alleged non-
receipt of
K.V.P.'s
6. Sub A/c branch of Do do
Agra H.O. E.B. from
29-5-2000 to 31-5-
7. S.O. summary of To confirm do
Agra H.O. from 29- whether the
5-2000 to 31-5-2000 disputed
K.V.P.'s were
accounted for
at H.O.
8. F.I.R. lodged by Because this do
Sr.P.M. Agra H.O. document has
regarding loss of been replaced
daily A/c of by listed
Samsabad, P.O. documents
dated 29-5-2000 No.8
9. R.B.T.N.C.32 Relevant to the S.S.P.O.'s Agra
(Transfer payment of or S.P.M.
Application) of disputed Samsabad.
Samsabad. S.O. K.V.P.'s
Sr.No.43 of may
2000 along with
advice of payment
and Registry receipt
10. Original paid Mentioned in Sr. P.M.
vouchers of KVP's the subject H.O./SS.P.O's
worth Rs.85200/- matter of Agra/D.A.A. (P.
also charge on charge sheet Lucknow)
29.5.2000 of
Samsabad P.O.
11. E.B. of mail branch To confirm the Sr.P.M. H.O.
of Agra H.O. dated actual time of
29-5-2000 to 31-5- receipt of mail
2000 from
Samsabad. On
29-5-2000
12. K.V.P. issue journal Relevant to Sr.P.M. H.O.S.S.
of Samsabad S.O. cross P.O's Agra
for the month of examination of
may 2000 Shri Bhagwati
Prasad Sharma
P.A. Samsabad.
With his W.S.
listed
document
No.11
13. Long book of one Do S.P.M.
year T.D. of Samsabad
Samsabad S.O.
dated 29-5-2000
14. Order book of Relevant to my Do
Samsabad, S.O. relief from
dated 29-5-2000 to Samsabad S.O.
31-5-2000 on 31-5-2000
15. Error Book of Relevant to Do
Samsabad S.O. for irregularity
May 2000 noted relating
to subject
matter of
charge sheet
16. Preliminary enquiry To impeach the S.S.P.O.'s Agra
report of the preliminary
present case enquiry
officer's Shri
Babu Lal Shri
R.S.Nigam Shri
Abdul Sattar
17. Charge report of Relevant to do or C.O.
S.P.M. Ship of transfer of
Samsabad S.O. of charge
3105-2000 Samsabad S.O.
to Prem Singh
P.A. Samsabad
18. Cord, Level Seal & Relevant to Sr.P.M. H.P.O
bag of mail bag of E.B. No.364
Samsabad S.O. dated 30-5- Agra
dated 29-5-2000 2000 listed
preserved at the document No.4
time of opening the
bag at Agra H.O.
19. Cord, Level Seal & Do Do
bag of mail bag of
Samsabad S.O.
dated 29-5-2000
opened at Agra H.O.
on 30-5-2000
20. Sub A/c branch Agra Mentioned in Do
H.O. E.B. No.104 E.B. No.105 of
dated 30-5-2000 S.B. branch of
Agra H.O. listed
document No.7
21. Sub A/c branch Agra Referred in Do
H.O.E.B. No.-362 W.S. of Shri
dated 30-5-2000 Prem Singh P.A.
Samsabad.
Listed
document No.9
4. Vide order dated 20.10.2003, holding that the documents
production whereof was sought were relevant except the
document mentioned at serial No.16, the Inquiry Officer
directed the Presenting Officer to produce all the aforesaid
documents demanded by the petitioner, save and except
document mentioned at serial No.16 i.e. preliminary enquiry
report. On the next date, evidenced by the order dated
20.04.2004 passed by the Inquiry Officer only documents
mentioned at serials Nos.1,3,4, 14 and 15 were produced and
supplied to the petitioner and the remaining documents were
stated to be not available as the same could not be located.
5. After recording evidence the Inquiry Officer submitted a
report dated 31.03.2005 in which he indicted the petitioner. In
a nutshell, it was opined by the Inquiry Officer:-
(i) a comparison of the handwriting and initials contained
in the discharge journals Ex.Ka-3, Ex.Ka-4 and Ex.Ka-5
prepared in respect of the KVP's in question with the
admitted handwriting and initials of the petitioner
contained in the charge report dated 31.03.2000
evidenced that the discharge journals Exh.Ka-3, Ka-4 and
Ka-5 were prepared by the petitioner and the
circumstances that the petitioner accepted the said
discharge journals as genuine and made entries in the
accounts of Post Office Shamshabad fortifies the said
suggestion; there is no evidence to show that payment in
respect of KVP's in question was made to one Ramesh
Chander as recorded in the discharge journals Ex.Ka-3,
Ex.Ka-4 and Ex.Ka-5;
(ii) a perusal of discharge journal Ex.Ka-5 shows that the
payment in respect of KVP's in question was made on the
basis of transfer application received from another post
office but no such application was found available in Post
Office Shamshabad;
(iii) internal enquiry revealed that the KVP's in question
were fake;
(iv) evidence adduced by the prosecution establishes
that paid vouchers in respect of discharge journal Ex.Ka-5
were not received at Head Office, Agra and that paid
vouchers in respect of discharge journals Ex.Ka-3 and
Ex.Ka-4 received at Head Office, Agra were not sealed,
which facts when coupled with the circumstance that it is
the duty of Sub-Post Master to submit vouchers to Head
Office and the admission of the petitioner that he had
closed the account bag of Post Office Shamshabad on
29.05.2000 is indicative of the guilt of the petitioner; the
fact that office of registration or original registrations
number(s) of KVP's in question was not recorded in the
discharge journals Ex.Ka-3, Ex.Ka-4 and Ex.Ka-5 when
coupled with the circumstance that it is the duty of the
Sub-Post Master to maintain accounts is indicative of the
guilt of the petitioner and the conduct of the petitioner in
giving evasive replies to the inquiries pertaining to non-
receipt of paid voucher in respect of discharge journal
Ex.KA5 made by the staff of Head Office, Agra on
29.05.2000 and thereafter proceeding on leave with
effect from 30.05.2000 points towards the guilt of the
petitioner.
6. With respect to the contention advanced by the
petitioner that the payment in respect of KVP's in question was
made by one Bhagwati Prasad Sharma, the PA of Post Office
Shamshabad at the relevant time, the Inquiry Officer opined as
under:-
―The evidence on record shows that account bag
was closed by the charged official on 29-05-2000
and all the paid vouchers of KVP's worth Rs.85200/-
were stated to have been sent by him with SO daily
account duly entered thereon. The payment of
discharged KVP's as exhibited in Exh.Ka-3, Ka-4 and
Ka-5 was affirmed by the charged official to have
been made by Shri Bhagwati Prasad Sharma SW-18
but this fact is not confirmed from hand to hand
receipt book, Exh. Ka-11. Shri Bhagwati Prasad
Sharma has stated that Exh.Ka-3, Ka-4 and Ka-5
were prepared by the charged official and payment
was also effected by him as nobody came to his SB
counter on 29-05-2000 for encashment of KVPS
while the charged official has categorically denied
to have prepared the Exh.Ka-3, Ka-4 and Ka-5 on
29-05-2000. He also added that he cannot explain
as to who prepared these documents but these
unauthorized exhibits have been accepted by the
charged official as genuine and amount
represented in them as been incorporated into
account of the day while preparing rough account
Exh. Ka-9. SO account Ex. Ka-7 on 29-05-2000 and
submission their of along with paid KVP vouchers
worth Rs.85200/- with SO daily account duly
entered into it. The initials of the charged official on
Exh.Ka-3, Ka-4 and Ka-5 are also appearing on them
and these resemble with those affixed on the
charge report dated 31-05-2000 at left hand upper
corner on the designation stamp of SPM (L.S.G.)
Shamsabad. These charge report has been made an
extra additional document with his defence
statement dated 23-02-2005, now a part and parcel
document of the enquiry. On comparison the
handwriting of charge report dated 32-05-2000 with
those appearing on KVP discharged journal Exh.Ka-
3, Ka-4 and Ka-5, it is evident that handwriting
exactly resemble on both the documents. Thus a
man of ordinary prudence shall presume that
Exh.Ka-3, Ka-4 and Ka-5 were prepared by a person
who prepared the charge report. Hence there is a
clear presumption that Exh.Ka-3, Ka-4 and Ka-5
were prepared by the charged official on 29-05-
2000....The evidence on record shows that Shri
Bhagwati Prasad Sharma SW-18 was LRPA. As per
his deposition he did only those work which were
entrusted to him by the SPM. The memo of
distribution of work Exh. Ka-2 was not shown to him
by the charged official during the period he worked
at Shamsabad PO from 19-04-2000 to 31-05-2000.
On 29-05-2000 he did only SB/RD work as there was
heavy work with him. The work relating to KVP/NSC
as done by SPM himself. As regard Exh. Ka-11, he
stated that work of KVP issue was done by him in
hand to hand receipt book. He also stated that a
page between 30-05-2000 and 31-05-2000 in
Ex.Ka-11 was not torn by him. His signatures was
not taken by SPM on SO daily account dated 29-05-
2000 and SO account dated 29-05-2000 (Exh. Ka-7)
as joint custodian. He denied any payment on
account of discharge of KVP on 29-05-2000 as no
one came at his counter for discharge of KVP nor he
saw the charged official making payment of KVP for
Rs.69200. he also stated before the under signed
that Exh.Ka-9, Ka-3, Ka-4 and Ka-5 were prepared
by the charged official on 29-05-2000 in his hand
writing. As regard preparation of Exh.Ka-3, Ka-4 and
Ka-5 the matter has been discussed in detail under
the evaluation of article of charge-I. Thus
arguments put forth by the charged official are not
correct.....The charged official denied to have
prepared Exh.Ka-3, Ka-4 and Ka-5 in opposition of
deposition of Bhagwati Prasad Sharma the then SB
Counter PA Shamsabad SW-18 but he could not
explain as to the person who prepared these
documents while he asserted the payment of
discharged KVPs to have been made by the SW-18.
However these unauthenticated exhibits Exh.Ka-3,
Ka-4 and Ka-5 were accepted by the CO as genuine
and amount represented in them has been
incorporated in account vide Exh. Ka-9 and Ka-7 on
29-05-2000. On comparison the handwriting of
charge report dated 31-05-2000 submitted by the
CO with his defence statement dated 23-02-05 with
that of discharged journals Exh.Ka-3, Ka-4 and Ka-5,
it is evident that these documents have been
prepared one and the same person. Hence there is
clear presumption that Exh.Ka-3, Ka-4 and Ka-5
were prepared by the charged official on 29-05-
2000. More the initial of the charged official on
these documents also resembles with that
appearing in red ink in the leftside upper corner of
charge report dated 31-05-2000 on the designation
stamp of Sub Postmaster LSG Shamsabad and
below the word attested.‖
7. With respect to non-supply of the documents demanded
by the petitioner, the Inquiry Officer opined as under:-
―As regard counter allegation of the charged official
on the prosecution as to causing disappear the sub
office daily account of Shamsabad SO dated 29-05-
2000 to implicate him is also not convincing
because Exh. Ka-24 regarding noting EB no.8 dated
0106-2000 noted by Shri K.K. Sharma SW-12
indicates that the SO daily account dated 29-05-
2000 was not found available on 01-06-2000 at
Agra HPO prior to commencement of fact finding
preliminary enquiry. In this connection it is also
worth mention that SO daily account of all sub
offices as per deposition of Shri Deokinandan SW-11
vide Exh. Ka-22 used to be kept at Agra HPO in a
almirah in which no lock was provided for safe
custody. This reflects that there was sufficient
possibility to remove the SO daily account by any
miscreant having vested interest in it.... The
contention of the charged official alleging the
prosecution as to removal of SO daily account of
Shamsabad SO dated 29-05-2000 from scene to
implicate him is also not convincing in the light of
EB no.8 dated 01-06-2000 Exh. Ka-24 noted by Shri
K.K. Sharma SW-12 before the commencement of
the fact finding enquiry by the prosecution as it is
evident from the statement recorded by Shri R.S.
Nigam SW-6 and Shri Babulal SW-2. On the contrary
it reflects that the SO daily account dated 29-05-
2000 of Shamsabad SO was removed from scene by
any miscreant having vested interest in it.‖
8. After considering the aforesaid report dated 31.03.2005
submitted by the Inquiry Officer and the representation filed
by the petitioner against the said report, vide order dated
10.08.2005, the Disciplinary Authority held that the charges
leveled against the petitioner have been proved and inflicted
the punishment of dismissal of service upon the petitioner.
9. Aggrieved by the order dated 10.08.2005 passed by the
Disciplinary Authority, the petitioner filed an appeal before the
Appellate Authority, which appeal was dismissed vide order
dated 03.04.2006.
10. Aggrieved by the orders dated 10.08.2005 and
03.04.2006 passed by the Disciplinary Authority and Appellate
Authority respectively, the petitioner filed an application under
Section 19, Administrative Tribunals Act, 1985 before Central
Administrative Tribunal (hereinafter referred to as the ―CAT‖),
Principal Bench, New Delhi.
11. During pendency of the aforesaid application before the
CAT, vide judgment dated 29.03.2007, learned Judicial
Magistrate, Agra acquitted the petitioner of the charges
framed against him of cheating and criminal breach of trust.
The relevant portion of the judgment of the Trial Court reads
as under:-
―On analysis of arguments of both sides and the
witnesses presented by the prosecution as well as
the paper available on file and the judgments, I am
of the view that the case of the accused is based on
the issue that the numbers of the Kisan Vikas Patra
payment of which is stated to have been made
those number do not exist. It is worth mentioning
here that every type of Kisan Vikas Patra are issued
by the Postal Deptt. The department's officers could
not produce any certificate during the departmental
enquiry when the incidence came to their
knowledge, and also before the investigator by
which it was ascertained that Kisan Vikas Patra with
the said numbers do not exist at all. This was the
primary duty of all those senior officers of the
department who got the enquiry conducted in this
regard or those who got the First Information
Report lodged against the accused persons because
the proof of non-existence of those numbers could
have been given by the postal department alone.
The statement of PW-9 M.R. Maurya that he did not
see the original record nor did he try to ascertain as
to from which post office the Kisan Vikas Patras
were issued or verification from the Govt. Press
Nasik where Kisan Vikas Patras are printed whether
these number were fake, becomes more important
because completion of the crime cannot simply be
done on the basis of probabilities. The prosecution
had to prove clearly that the Kisan Vikas Patras with
the said numbers were not available in the Postal
Department till then. Analysis of the crime is not to
be based only on the statement of witnesses but it
can be done on the basis of clinching evidence.....
In today's pretext if it may be decided that the
Kisan Vikas Patra with the said numbers are fake
and the accused be punished and later on if it
comes to the knowledge at some stage that Kisan
Vikas Patra were actually issued by India Post, it
would tantamount not only misuse of judicial
system but also be a condefect of judicial analysis.
So far as the issue of ascertaining the information
whether the Kisan Vikas Patra were never issued by
Indian Postal Department is concerned, there was
ample opportunity available to the complainant, the
person who got the FIR lodged and other higher
officers. But without taking any action in that
regard efforts were made by oral statements in
repeatedly term the Kisan Vikas Patra as fake so
that the court may believe it whereas there was no
necessity of producing so many witnesses. Instead
the Department could have produced in a very
short span of time that Vikas Patra with the given
number were never in existence and such Vikas
Patra were never issued by the Postal Department.
But all the witnesses by trying to prove the whole
incident wanted to show that Kisan Vikas Patra with
the said numbers do not exist. During the course of
arguments, the prosecution made an application
under section 311 requesting to permit Babu Lal
complainant to present the report relating to
existence of the said number which was accepted
by the court. Thereafter an report was presented
during examination-in-chief in which there is
indication of sending the Kisan Vikas Patra of
disputed numbers to Head Post Office Fatehpur.
These bear the same numbers which the
Prosecution is stating as fake. These are in
denomination of Rs.10,000/-. So far as these Kisan
Vikas Patra with the said numbers are either in the
name of purchaser or nominee and have one
address. This has changed the course of entire
exercise of the Prosecution. Though the above
report is certified by the department's Senior
Inspector Post Office yet to take it evidence, the
issuing personnel should have definitely been put to
examination to lead the evidence under the
Evidence Act. Despite existence of these papers on
file, this court puts a full stop on the relentless
exercise producing oral evidence. The court does
not want to lexity to arrive at the conclusion that
the accused has not committed any crime of
embezzlement....
It is important that the accused is a Govt. official
and it was necessary to have prosecution sanction
issued by the competent officer because the
alleged charges against the accused pertained to
his official duties. The prosecution sanction can only
be issued by the authority competent to appoint or
dismiss the Govt. servant whereas neither such
mention has been made nor the witnesses have
proved fully that prosecution sanction has been
given by the competent officer.....
Merely on the basis of probability and without
ascertaining as to in what manner and against
whom the crime has been committed, it is (not
permissible) to bring the accused under section 409
and 420 IPC.....Nowhere it is proved clearly by any
witness that the numbers shown in payment
voucher are fictitious...‖ (Emphasis Supplied)
12. Vide judgment dated 20.03.2008, CAT dismissed the
original application filed by the petitioner. To put it pithily, it
was held by the Tribunal that it is settled legal position that
the Courts/Tribunals should not interfere with the decision of
the Disciplinary/Appellate Authority unless said decision is
illogical or suffers from procedural impropriety or shocks the
conscience of the Court in the sense that it is passed in
defiance of logic or moral standards; that scope of judicial
review of the decision taken by Disciplinary/Appellate
Authority is limited to the deficiency in decision-making
process and not the decision and that no such infirmity was
pointed out by the petitioner in the order(s) passed by the
Disciplinary/Appellate Authority in the instant case.
13. Thereafter on 21.04.2008 the petitioner filed an
application before the Tribunal seeking review of the judgment
dated 20.03.2008 on the ground that an error apparent on the
face of the record has crept up in the said judgment for while
passing the same the factum of passing of judgment dated
29.03.2007 by learned Judicial Magistrate, Agra acquitting the
appellant of the charges under Sections 409 and 420, IPC
framed against him for having misappropriated the amount of
KVP's in question has escaped the attention of the Tribunal.
Dealing with the contention urged in Review, holding that it is
settled legal position that the acquittal of a delinquent
employee in criminal proceedings is no ground to quash the
punishment imposed upon him by the competent authorities in
the disciplinary proceedings initiated against him, vide
judgment and order dated 01.07.2008, the Tribunal dismissed
the review application filed by the petitioner.
14. Aggrieved by the judgments and orders dated
20.03.2008 and 01.07.2008 passed by the Tribunal, the
petitioner has filed the present petition.
15. During hearing of the present petition, following
submissions were advanced by the learned counsel for the
petitioner:-
A. That for the same set of facts which constituted the
gravamen of the departmental proceedings against the
petitioner FIR No.208/2000 was registered under Sections 409
and 420 IPC. Counsel argued that when the criminal case
predicated upon same set of facts as disciplinary enquiry, the
petitioner stood acquitted on merits, it was incumbent upon
the Tribunal to attach due weightage to the finding of
innocence arrived at by the criminal court.
B. That the documents demanded by the petitioner during
the disciplinary enquiry were deliberately removed by the
department and that non-supply of said documents has caused
serious prejudice to the defence of the petitioner for the
reason said documents were most germane to the charges
leveled against the petitioner in the disciplinary enquiry.
C. That a perusal of the report of the Inquiry Officer and the
orders passed by the Disciplinary/Appellate Authority shows
that the edifice of the report of the Inquiry Officer and the
orders passed by the Disciplinary/Appellate Authority was the
circumstance that discharge journals Ex.Ka-3, Ex.Ka-4 and
Ex.Ka-5 were prepared by the petitioner. Counsel argued that
the course taken by the Inquiry Officer of himself comparing
the handwriting contained in the discharge journals and
charge report and thereby coming to the conclusion that the
discharge journals were prepared by the petitioner is most
unreasonable. Counsel argued that the Inquiry Officer ought to
have shown the aforesaid the discharge journals and charge
report to a handwriting expert for his opinion with regard to
handwriting contained in the said documents. Counsel further
argued that in view of the fact that Inquiry Officer was not
skilled to do the job of a handwriting expert, no reliance can be
placed upon his opinion that the discharge journals Ex.Ka-3,
Ex.Ka-4 and Ex.Ka-5 were prepared by the petitioner.
16. What is the effect of acquittal of the petitioner in the
criminal proceedings on the punishment of dismissal of service
imposed upon the petitioner in the disciplinary proceedings
initiated against him?
17. The legal position with respect to the effect of an
acquittal of a delinquent employee at a criminal trial vis-à-vis
the disciplinary proceedings initiated against him has been
succinctly stated by Supreme Court in the decision reported as
Management, Pandiyan Roadways Corporation Ltd v N.
Balakrishnan (2007) 9 SCC 755 in the following terms:-
―21.However, there is another aspect of the matter
which cannot be lost sight of. Respondent, in the
meanwhile, has been acquitted. The factum of his
acquittal has been taken into consideration by the
Division Bench, which was considered to be an
additional factor. Ordinarily, the question as to
whether acquittal in a criminal case will be
conclusive in regard to the order of punishment
imposed upon the delinquent officer in a
departmental proceeding is a matter which will again
depend upon the fact situation involved in a given
case.
22. There are evidently two lines of decisions of this
Court operating in the field. One being the cases
which would come within the purview of Capt. Paul
Anthony v. Bharat Gold Mines Ltd. and Anr.
(1999)ILLJ1094SC and G.M. Tank v. State of Gujarat
and Ors. (2006)IIILLJ1075SC . However, the second
line of decisions show that an honourable acquittal in
the criminal case itself may not be held to be
determinative in respect of order of punishment
meted out to the delinquent officer, inter alia, when:
(i) the order of acquittal has not been passed on the
same set of fact or same set of evidence; (ii) the
effect of difference in the standard of proof in a
criminal trial and disciplinary proceeding has not
been considered. [See Commissioner of Police, New
Delhi v. Narender Singh AIR2006SC1800 ], or; where
the delinquent officer was charged with something
more than the subject-matter of the criminal case
and/or covered by a decision of the Civil Court. [See
G.M. Tank (supra), Jasbir Singh v. Punjab & Sind Bank
and Ors. (2007)1SCC566 and Noida Enterprises Assn.
v. Noida and Ors. ] (Emphasis Supplied)
18. The difference between criminal and disciplinary
proceedings was explained in great detail by Kerela High Court
in the decision reported as Spadigam (J.) v State of Kerela
(1970) 1 LLJ 7118 in following terms:-
―A criminal Court require a high standard of proof for
convicting an accused. The case must be proved
beyond reasonable doubt. The acquittal of an
accused by a criminal Court only means that the
case has not been proved against him beyond
reasonable doubt. Such a standard of proof is not
required for finding a person guilty in a disciplinary
proceeding. It would be enough if there is a
preponderance of probability of his guilt......
The object of criminal law and its enforcement
through criminal proceeding is different from that of
disciplinary proceeding. A criminal proceeding is
mainly Intended to punish persons who have broken
"the King's peace," and thus to show the indignation
of the community to criminals whereas disciplinary
proceeding is intended to maintain the purity and
efficiency of public service. Then again, in a criminal
trial, the only evidence admissible is that which is
made admissible under the provisions of the
Evidence Act. A tribunal conducting an enquiry in a
disciplinary proceeding is not bound by the adroit,
rules of evidence. Any material which has a logically
probative value to prove or disprove the facts in
issue is relevant and admissible.
The principles governing criminal Justice that the
State would allow a score of real offenders to escape
rather than see a single innocent man convicted, can
hardily find an inch in disciplinary proceeding.....‖
19. To summarize the legal position, criminal and
departmental proceedings operate in their own distinct and
mutually exclusive jurisdictional areas. In a disciplinary
proceeding, the area of investigation covers the field of (a)
enforcement of discipline, (b) level of integrity, and (c)
misconduct pertaining to devotion of duty. In criminal
proceedings, the area of investigation covers the culpability
from the point of view of criminal law. Standard of proof in the
two proceedings is entirely different. In the former it is
‗preponderance of probabilities', in the latter, it is ‗proof
beyond reasonable doubt'.
20. Keeping the aforesaid judicial parameters in mind, we
proceed to examine the present case.
21. The scope of criminal proceedings initiated against the
petitioner is revealed from the following portion of the
judgment dated 29.03.2007 of the criminal court:-
―2. The prosecution case in brief is that state
witness PW-2 lodged a written report Ex.K-8 in P.S.
Shamshabad Agra that Shri Mahendra Kumar
Sharma S/o Sh. Chiranji Lal, R/o 3/11 GPO
Compound Agra was posted as Sub Postmaster,
Shamshabad from 21-08-98 (A/N). On 29-05-2000
he prepared account bag of Shamshabad Sub Post
Office and sent it to Head Post Office, Agra which
was received in Head Post Office on 30-05-2000 by
Shri Vedariya Ram, Cashier. While handing over
daily account dated 29-05-2000 and vouchers, to
Shri Dhirendra Kumar, Sub Accounts Assistant,
Head Post Office, Agra it was found that KVP
payment vouchers for Rs.16,000/- against payment
of KVP amount of Rs.85,000/- as per daily account,
were received. For the remaining Rs.69,2000/-,
payment journal was received but paid KVP
vouchers Nos.15CC-95042 to 950485 each in the
denomination of Rs.10,000/- were not received.
Report about it was made on the same day vide EB
No.364 dated 30-05-2000 by Shir Dhirendra Kumar
Sub Account Assistant and Shri H.N. Gupta,
Assistant Post Master, Sub Account Head Post
Office, Agra to all concerned. Due to non-receipt of
paid KVP vouchers despite the report, it was found
in departmental inquiry that on 29-05-2000 the said
Shri Mahender Kumar Sharma, showing the said
KVP in his own hand writing as RBT-43, a discharge
journal of Rs.69,200/-, KVPs were prepared and
KVPs of total amount of Rs.85,200/- were charged in
payment including Rs.69,200/- whereas no transfer
letter (NC-32) under RBT-43 was found about the
Kisan Vikas Patras in Sub Post Office, Shamshabad.
The duty for preparing discharge journal of
payment of Kisan Vikas Patra and sending its
vouchers to Head Post Office was that of Shri
Bhagwati Prasad Sharma. Shri Mahender Kumar
Sharma has been absent from duty on the excuse
of illness continuously since 31-05-2000. During the
course of departmental inquiry no record about
Kisan Vikas Patra of Rs.69,200/- was found and it
appears that Shri Mahender Kumar Sharma after
preparing discharge Journal of Rs.69,200/- of fake
Kisan Vikas Patra, himself embezzled the Govt.
money. Appropriate action is therefore requested
after registering a F.I.R.
3. On the basis of above report Criminal Case
No.208/2000 u/s 409, 420 IPC, P.S. Shamshabad,
district Agra, was made out and the inquiry officer
conducting an inquiry, found the charge under
section 409, 420 IPC and filed charge sheet in the
court.‖
22. From the aforesaid, it is apparent that the petitioner
was facing only one charge in the criminal proceedings, of
having misappropriating the sum of Rs.69,200/- by means of
fake KVPs. Charges framed in the disciplinary enquiry as noted
in para 2 above show that in the departmental proceedings, a
much wider area was being covered. Fields of service
pertaining to devotion to duty and misconduct were there in
the departmental proceedings, apart from field of integrity
(based on misappropriation). Embezzlement was only one of
the charges in the domestic enquiry. Not submitting paid
vouchers in respect of sum of Rs.69,200/-; not recording
relevant entries in discharge journal; discharging duties
assigned to Bhagwati Prasad Sharma and improperly preparing
rough account and discharge journal were the other areas of
the domestic enquiry. It, therefore, cannot be said that the
criminal case and departmental proceedings were grounded
on identical set of facts.
23. The matter can also be looked at from another angle.
24. A perusal of the relevant extract of the judgment of
criminal court noted by us in para 11 above makes it clearly
apparent that while returning the finding of innocence in
favour of the petitioner, the criminal court has been greatly
influenced by the fact that standard of proof required to prove
a charge in criminal case is ‗proof beyond reasonable doubt'
and not ‗preponderance of probabilities'. The Criminal Court
has noted deficiency in the evidence led in the form of non-
production of the original KVPs on which the charge was
founded. In fact, the ethos of judgment of the criminal court is
that the petitioner cannot be convicted on the basis of
preponderance of probabilities as evident from the expression
‗Merely on the basis of probability .......it is not permissible to
bring the accused under section 409 and 420 IPC'. As already
noted hereinabove, it is settled legal position that the standard
of proof in disciplinary proceedings is proof beyond reasonable
doubt. In that view of the matter, the judgment of criminal
court acquitting the petitioner can have no affect whatsoever
on the punishment of dismissal from service imposed upon the
petitioner in the disciplinary proceedings.
25. There is yet another aspect of the matter.
26. As per judgment of Supreme Court in Pandiyan's case
(supra), it is only an honorable acquittal which can affect
disciplinary proceedings in a given case.
27. What is meant by honorable acquittal?
28. The answer to the aforesaid question lies in the decision
of Allahabad High Court reported as Kailash Chandra v. State
of U.P. MANU/UP/0109/2005. In the said case, the Court was
considering the effect of acquittal in the criminal proceedings
on the departmental/disciplinary enquiry pending against a
delinquent employee. In the said context, an issue arose as to
the nature of the acquittal in the criminal proceedings. After
considering various judgments, the Court observed as under:
27. Thus in view of law laid down by apex court and
other High Court there can be no hesitation to hold
that if the Government employee/public servant has
been punished departmentally on his misconduct
earlier which is a foundation of criminal prosecution
and later on criminal case ended in acquittal and if
the acquittal is clean and honourable based on
merit wherein accused has been completely
exonerated from the offence alleged against him
and the prosecution case found totally false with
positive finding that the accused did not commit the
offence in question and acquitted not on account of
benefit of doubt or appreciation of evidence
including lack of sufficient evidence or lack of
sanction for prosecution or on any other technical
grounds he may be reinstated back in service with
other consequential benefit including arrears of
salary or other pensionary benefit admissible to him
if retired earlier by treating him in service but in
other situation where the acquittal is based on
benefit of doubt or appreciation of evidence
including lack of sufficient evidence or lack of
sanction for prosecution or any other technical
ground, disciplinary enquiry pending against such
Government or public servant cannot be concluded,
rather it would be appropriate that the
departmental authority may continue with the
disciplinary inquiry or hold fresh enquiry in respect
of the mis-conduct, which was foundation of
criminal case ended in acquittal against such
Government servant. If disciplinary inquiry has
already been concluded and major punishment, as
envisaged under Article 311 of the Constitution of
India or under the relevant service rules, has
already been awarded to such Government servant,
it would not be necessary and appropriate to re-
open the same on account of his such acquittal
from criminal charges.
xxxxx
Thus in view of the discussions made herein before,
the respondent Government of Uttar Pradesh is
hereby restrained and directed not to apply G.O.
No. 6/10/79-Karmic-1 Lucknow dated 12.10.1979,
indiscriminately in whole-sale manner, irrespective
of merit of individual case of acquittal of
Government servant in criminal prosecution
forthwith. The aforesaid G.O.is to be applied only in
cases of clean and honorable acquittal based on
merits, where competent court trying the offences
(including higher court hearing the appeal or
revision) has completely exonerated the accused
from the offence by recording positive finding to the
effect that the accused did not commit the offence
and whole prosecution story against him thrown out
and found false. The acquittal should not be based
on extension of benefits of reasonable doubts
including appreciation of evidence, lack of sufficient
evidence or want of sanction for prosecution or
other technical grounds.
XXXX
From the aforesaid finding recorded by this Court in
criminal appeal filed by the petitioner, it is clear
that petitioner has not been exonerated of the
charges by recording any positive finding in
criminal case to the effect that he did not commit
the offence in question rather he has been
acquitted by entertaining the benefit of doubt about
the prosecution case as the prosecution has failed
to establish the guilt beyond reasonable doubt as
required under law. thereforee, it cannot be treated
to be a honourable and clean acquittal on merits
from the aforesaid criminal case and as such he
cannot be held to be entitled for reinstatement in
service with all consequential benefits of service....‖
29. Thus, an ―honorable acquittal‖ is an acquittal after trial
on a consideration of the facts duly proved as per rules of
evidence as distinguished from the acquittals occurring due to
technical defects such as want of sanction, fact not proved as
rule of evidence not followed, want of evidence, benefit of
doubt etc. To put it differently, an acquittal is said to be
honorable when it is based on a positive finding of innocence
of the accused.
30. In the backdrop of afore-noted legal position, it has to be
seen in the instant case whether the acquittal of the petitioner
by the criminal court is an ―honorable acquittal‖.
31. A perusal of the portion of the judgment of the criminal
court noted by us in foregoing paras reveals that three major
reasons which led the criminal court to acquit the petitioner
were that: - (i) sufficient evidence was not adduced by the
prosecution to establish that Kisan Vikas Patras in question
were fake; (ii) the report produced by the prosecution
evidencing that Kisan Vikas Patras in question were fake was
not proved in accordance with Indian Evidence Act and (iii)
prosecution did not lead any evidence to show that sanction
for prosecution the petitioner was taken from a competent
authority.
32. In such circumstances, it cannot be said that the
acquittal of the petitioner by the criminal court was an
―honorable acquittal‖. As a necessary corollary thereof,
acquittal of the petitioner by the criminal court can have no
effect on the punishment of dismissal of service imposed upon
the petitioner in the disciplinary proceedings.
33. With respect to the contention pertaining to non-supply
of the documents demanded by the petitioner, relevant would
it be to note that after considering evidence adduced by the
department and the petitioner and other facts and
circumstances of the case, the Inquiry Officer came to a
definite finding that the documents demanded by the
petitioner were not available with the department and that the
disappearance of the said documents was caused by a
miscreant having vested interest in disappearance of the said
documents and that the department had no role to play in the
same, which finding was affirmed by the Disciplinary/Appellate
Authority.
34. It is settled legal position that finding of fact recorded in
disciplinary enquiry cannot be interfered by the
Courts/Tribunals unless such finding is based on no evidence
or is perverse or is such that no reasonable man in the
circumstances of the case would have reached such finding.
(See the decision of Supreme Court reported as Coimbatore
District Central Coop. Bank v Employees Association (2007) 4
SCC 669)
35. No such flaw has been shown to us in the finding arrived
at by the Inquiry Officer and affirmed by the
Disciplinary/Appellate Authority that the documents in
question were got disappeared by a miscreant having vested
interest in the disappearance of the said documents and that
the department had no role to play in the same. We thus find
no merit in the contention of the learned counsel for the
petitioner that the department had deliberately removed the
documents demanded by the petitioner in order to falsely
implicate him.
36. The matter can be looked at from another angle. Now, it
is obviously a case of somebody removing the documents and
that somebody has to be the person whose guilt would have
surfaced if the documents saw the light of the day. De-hors
the said documents if there is material to infer the guilt of the
petitioner the said inference can be extended to infer that
being the miscreant the petitioner removed or got removed
the documents and then very boldly sought production thereof
knowing fully well that the documents would never be
produced as they could not be produced and in the process
armed himself with a technical defence of prejudice.
37. We need to speak a little more on the subject of
prejudice. If there is positive evidence to nail the guilt of an
accused unless it could be shown that a document production
whereof was sought would rebut a fact or a presumption
drawn from the evidence on record, only then can it be said
that the defence has been prejudiced on account of non-
production of the document. Mere concern of a document with
the subject matter of inquiry may not itself lead to proof of
defence being prejudiced on account of non-production of the
document.
38. This takes us to the last contention advanced by the
learned counsel for the petitioner that the Inquiry Officer has
committed an illegality in not taking the assistance of a
handwriting expert while comparing handwriting contained in
the discharge journals Ex.Ka-3, Ex.Ka-4 and Ex.Ka-5 and the
charge report 31.03.2000. Again, after due consideration of
evidence on record and other facts and circumstances of the
case, a finding of fact has been arrived at by the Inquiry
Officer that the discharge journals Ex.Ka-3, Ex.Ka-4 and Ex.Ka-
5 were prepared by the petitioner, which finding has been
affirmed by Disciplinary/Appellate Authority. No perversity or
any other flaw has been pointed out to us by the learned
counsel for the petitioner in the said finding. Merely because
the Inquiry Officer did not take the assistance of a handwriting
expert for comparing the handwriting contained in the
discharge journals Ex.Ka-3, Ex.Ka-4 and Ex.Ka-5 and the
charge report 31.03.2000 does not make the finding arrived at
by the Inquiry Officer that the discharge journals Ex.Ka-3,
Ex.Ka-4 and Ex.Ka-5 were prepared by the petitioner perverse.
We may note that the report of a handwriting expert would be
evidence to assist the trier of facts and in the instant case the
Inquiry Officer, but the decision on the matter of fact whether
the writing was that of the petitioner had to be that of the
inquiry officer and we find nothing wrong in the inquiry officer
himself comparing the writing which was disputed by the
petitioner as being his with the admitted writing of the
petitioner.
39. In view of the above discussion, we find no merit in the
present petition. The same is hereby dismissed.
40. Since the petitioner has lost his job we refrain from
imposing costs.
(PRADEEP NANDRAJOG)
JUDGE
(MOOL CHAND GARG)
JUDGE
SEPTEMBER 23, 2010
mm / dk
