Telangana High Court
K. Surya Kantha Rao, vs M/S. Girijan Cooperative Corporation ... on 3 April, 2025
Author: Nagesh Bheemapaka
Bench: Nagesh Bheemapaka
HON'BLE SRI JUSTICE NAGESH BHEEMAPAKA
WRIT PETITION No. 40022 OF 2014
O R D E R:
Petitioner challenges the Award dated 20.08.2014
in I.D.No. 73 of 2002 whereby and whereunder the 3rd
respondent Tribunal modified the dismissal order as
compulsory retirement. A consequential direction is sought to
the Corporation to treat petitioner as retired from service on
31.03.2014 on reaching the superannuation age along with
consequential benefits of continuity of service, attendant
benefits and back wages.
2. Petitioner while working as Junior Assistant faced
allegations leading to suspension on 18.02.1997. The
allegations were based on an Audit Report dated 10.02.1997,
which resulted in a charge memo dated 18.03.1997. A
subsequent charge memo dated 21.06.1997 followed. Despite
repeated requests, petitioner was not provided with relevant
records to defend himself. It is contended that charges were
baseless and that he was wrongfully implicated for faults
committed by others. Moreover, a police complaint was filed
against him at P.S. Humayunnagar, Hyderabad, with charges
overlapping those in the departmental inquiry. The petitioner
requested a stay on the departmental inquiry until the criminal
case's resolution, which was denied. The departmental inquiry
was conducted in violation of the service regulations, resulting
in his dismissal from service without an opportunity to present
comments on the inquiry report. It is the complaint of petitioner
that no subsistence allowance was paid during his suspension
period, rendering the entire proceedings procedurally flawed.
Consequently, he raised I.D. No. 108 of 2000 before the Labour
Court-I, Hyderabad, which was subsequently, renumbered as
I.D. No. 73 of 2002 upon transfer to the 3rd respondent
Industrial Tribunal.
It is also stated, petitioner's suspension on
18.02.1997 culminated in his dismissal from service on
03.04.1998. The Tribunal passed Award dated 19.08.2003
directing respondents to reinstate petitioner with all benefits
and 50% back wages. The said Award was challenged in Writ
Petition No. 22649 of 2003. This Court remanded the matter for
fresh decision regarding validity of the domestic inquiry. On
06.10.2005, the Tribunal invalidated the domestic inquiry
which resulted in filing Writ Petition No. 22971 of 2005 by
respondents. The said Writ Petition was allowed, challenging the
said petitioner filed Writ Appeal No. 84 of 2006, which was
allowed on 20.09.2011, remitting the matter to the Tribunal
while holding the inquiry as invalid.
On remand, respondents examined N. Vijay Kumar,
Divisional Manager (MW1) and B. Saidaiah, Auditor (MW2) and
marked Exs.M1 to M60, whose report formed the basis of the
charges. Petitioner was examined as WW1 and marked Ex.W1.
During cross-examination, MW1 and MW2 admitted that
charges in Ex.M6 and Ex.M18 were the subject of criminal case
(C.C. No. 28 of 1999) wherein petitioner was acquitted on
26.11.2000, as per Ex.M60. Despite the acquittal and inability
of respondents to prove the charges, the Tribunal modified the
dismissal order to compulsory retirement, prompting the
petitioner to file this Writ Petition.
Learned counsel for petitioner Sri V. Narsimha
Goud mainly submits that the Tribunal erred in relying on
Ex.M2 (Audit Report), which was found to have been prepared
without physical stock verification. It is submitted that letter
dated 31.03.1997 was obtained while petitioner was in custody,
even though it was neither part of the inquiry report nor
referenced in dismissal order, the Tribunal relied on the same.
Learned counsel points out the other employees
who involved in similar allegations, including T.P.
Ranganatham, K. Venkatesham, and Rama Rao Jaggatah, faced
no action, hence, the action against petitioner would amount to
victimization and vindictiveness.
It is submitted that since petitioner was acquitted
in criminal case and as the charges in departmental enquiry
and criminal case are identical, witnesses being the same, the
Tribunal ought to have held in favour of petitioner.
Learned counsel, in support of his arguments,
relied on the judgments of the Hon'ble Supreme Court in Ram
Lal v. State of Rajasthan 1, G.M. Tank v. State of Gujarat 2,
Sulekh Chand & Salek Chand v. Commissioner of Police 3,
State of Uttaranchal v. Kharak Singh 4, Rajendra Yadav v.
State of Madhya Pradesh 5, Man Singh v. State of Haryana6
and Makhan Singh v. Narainpura Co-operative Agricultural
Service Society Limited 7.
3. Heard learned Government Pleader for Services III
who submits that the Tribunal, after thoroughly analysing the
(2024) 1 SCC 175
(2006) 5 SCC 446
1994 Supp (3) SCC 674
(2008) 8 SCC 236
(2013) 3 SCC 73
(2008) 12 SCC 331
(1987) 3 SCC 571
evidence and material before it, passed the Award impugned
which does not require any interference at the hands of this
Court.
4. From a perusal of the Award of the Tribunal, it is
evident that petitioner was alleged to have caused stock deficit
which resulted in financial loss to the respondent Corporation.
In this connection, based on the complaint given by the 2nd
respondent, a case was booked at Humayunnagar Police Station
which was registered as C.C.No. 28 of 1999 for the offences
under Sections 409 and 466 IPC. The said case ultimately
ended in acquittal on 16.11.2000. It is the argument of learned
counsel for petitioner that charges in departmental enquiry and
criminal case are identical, the witnesses being the same, the
Tribunal ought to have held in favour of petitioner. He places
strong reliance on the judgment of the Hon'ble Supreme Court
in Ram Lal's case (supra). The said judgment considered the
effect of acquittal in the criminal proceeding on the order of
dismissal passed in the departmental enquiry. The Supreme
Court held that expressions like 'benefit of doubt' and
'honourably acquitted' used in judgments are not to be
understood as magic incantations. A court of law will not be
carried away by the mere use of such terminology. The
conclusion that acquittal in the criminal proceeding was after
full consideration of the prosecution evidence and that the
prosecution miserably failed to prove the charge can only be
arrived at after a reading of the judgment in its entirety. The
Court in judicial review is obliged to examine the substance of
the judgment and not go by the form of expression used.
Admittedly, in C.C.No. 28 of 1999, learned Presiding Officer
recorded that prosecution failed to bring home the guilt of
accused for the offences alleged and accused has not committed
any offence. In this context, it is necessary to look into the well-
settled law that 'in criminal law, burden of proof is on the
prosecution and unless the prosecution is able to prove the guilt
of the accused 'beyond reasonable doubt', he cannot be
convicted by a court of law. In a departmental enquiry, on the
other hand, penalty can be imposed on the delinquent officer on
a finding recorded on the basis of 'preponderance of probability'.
Acquittal by a criminal court would not debar an employer from
exercising power in accordance with the Rules and Regulations
in force. The two proceedings, criminal and departmental, are
entirely different. They operate in different fields and have
different objectives. Whereas the object of criminal trial is to
inflict appropriate punishment on the offender, the purpose of
enquiry proceedings is to deal with the delinquent
departmentally and to impose penalty in accordance with the
service rules. In a criminal trial, incriminating statement made
by the accused in certain circumstances or before certain
officers is totally inadmissible in evidence. Such strict rules of
evidence and procedure would not apply to departmental
proceedings. (see Ajit Kumar Nag v. General Manager (PJ)
Indian Oil Corpn. Ltd. (2005) 7 SCC 764.). In view of the
same, the contention of learned counsel cannot be
countenanced.
5. Coming to the merits of the matter, the Tribunal in
the light of the evidence and contentions placed before it,
observed that there is no dispute or a denial from the petitioner
about discrepancy of the records and stocks; Ex.M2 Audit
Report and the relevant entries under Ex.M3 at pages 337 to
377 would show the reference of cancellation of invoices and
discrepancies; M.W.2 categorically stated that he has not
physically verified the existing stocks, being an Auditor and
when it is the allegation of misappropriation, it is the duty of
M.W.2 to physically verify the stocks and tally and compare
them with the entries incorporated to in the Registers. M.W.1
also admitted that he was also found fault along with other
persons for the discrepancy of these stocks and earlier years
also there was a discrepancy in these stocks. M.W.1 on the one
hand claimed that he regularly verified the stocks and on the
other, stated that he has not verified the stocks periodically. The
Audit reports clearly show that failure of supervision and
verification of stocks led to deficiency and resulting in
misappropriation. The Tribunal observed that failure to make
physical verification of the stocks goes to the root of the case
and it is a serious lapse on the part of M.Ws.1 and 2. At the
same time, the Tribunal took into consideration the letter
addressed by petitioner to the Secretary to Government, Social
Welfare Department and the Regional Manager, Girijan
Cooperative Corporation Limited dated 31.03.1997 requesting to
drop charges against him, wherein it is submitted that his trade
voucher bills for the period July 1995 to February 1997 are to
be cleared and amounts are due to him and he is ready to pay
the balance amounts to the Corporation which comes to
Rs.45,015/-. The Tribunal observed that the said letter was in
the course of functioning of the government officers and it
cannot be said that it is created and fabricated. Further, W.W.1
i.e. petitioner in his own cross-examination admitted that all
the amounts collected by him were not remitted. His admission
in the cross-examination supports Ex.M.11, in view of the same,
it is clear that petitioner is guilty of misappropriating some
amount. Though learned counsel urges that since charges were
not completely proved, the Tribunal ought to have granted the
relief of reinstatement with all benefits, the said contention
cannot be accepted in view of admission of petitioner in the
letter stated supra.
6. Learned counsel further contends that M.Ws.1 and
2 gave evidence in criminal case admitting that stocks were not
physically verified resulting in acquittal of petitioner as
misappropriation was not clearly established and M.W.1 and
other co-workers who are clerks and senior Assistants are also
guilty but action was not initiated against them which shows
victimization and vindictiveness. He also relied on in support of
the said contention, the judgments in Rajendra Yadav's case
(supra) and Man Singh's case (supra). However, it is to be
seen here that there may be lapses on the part of other
employees and respondents might not have initiated action
against them but that does not absolve petitioner of the charges
alleged, particularly in view of the admission made by him in his
cross-examination in the criminal case to the effect that he had
not remitted the amounts collected on credit sales and obtained
receipts from the corporation and also the admission made by
him in the letter dated 31.03.1997 requesting to drop charges
against him, wherein it is submitted that his trade voucher bills
for the period July 1995 to February 1997 are to be cleared and
after deducting the amount due to him, he is ready to pay the
balance amount to the Corporation which comes to Rs.45,015/-
Learned counsel for petitioner submits that the said letter was
obtained by coercion, the same cannot be accepted for no
animosity was attributed to the Corporation's officials. Since,
as per the affidavit of WW1, petitioner crossed the age of
retirement by March, 2012 as he was born on 07.03.1954 and
by March, 2014, petitioner crossed the age of 60 years,
modifying the punishment of removal and issuing a direction for
reinstatement is not possible, the Tribunal modified the same to
that of compulsory retirement with entitlement to retirement
benefits accruable to him on the date of imposing the
punishment. Further, as petitioner did not work all those days,
he was denied back wages. This Court does not find any
infirmity in the Award of the Tribunal, hence, of the opinion that
Writ Petition is liable to be dismissed.
7. The Writ Petition is therefore, dismissed. No costs.
8. Consequently, miscellaneous Applications, if any
shall stand closed.
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NAGESH BHEEMAPAKA, J
03rd April 2025
ksld
