Tripura High Court
Sri Satya Sarkar vs The Union Of India on 7 February, 2025
IN THE HIGH COURT OF TRIPURA
AGARTALA
W.A. No.148 of 2022
Sri Satya Sarkar
son of late Manmohan Sarkar, resident
of village- South Indranagar,
Chowdhury Tilla, P.O. Indranagar, P.S.
East Agartala, Sub-Division- Agartala,
District- West Tripura
......... Appellant(s)
-Versus-
1. The Union of India,
represented by the Commissioner &
Secretary to the Ministry of Micro Small &
Medium Enterprise, Government of India,
having his office at Udyog Bhawan, Rafi
Marg, Connaught Lane, Barakhamba, New
Delhi- 110001
2. The Commissioner & Secretary,
to the Ministry of Micro Small & Medium
Enterprise, Government of India, having
his office at Udyog Bhawan, Rafi Marg,
Connaught Lane, Barakhamba, New Delhi-
110001
3. The Director,
Ministry of Micro Small & Medium
Enterprise, Micro Small & Medium
Enterprise Development Institute,
Government of India, Indranagar,
Kunjaban, P.S. NCC, District- West Tripura
....... Respondent(s)
For the Appellant (s) : Mr. Somik Deb, Sr. Adv.
Mr. P. Chakraborty, Adv.
For the Respondent (s) : Mr. B. Majumder, Dy. SGI
Date of hearing : 03.10.2024
Date of delivery of : 07.02.2025
Judgment & order
YES NO
Whether fit for reporting : √
HON‟BLE MR. JUSTICE ARINDAM LODH
HON‟BLE MR. JUSTICE S. DATTA PURKAYASTHA
JUDGMENT & ORDER
[S. Datta Purkayastha, J]
The judgment and order dated 02.01.2020 passed by the
learned writ court in W.P.(C) No.1445 of 2019 is under challenge in
this appeal, whereby the learned Single Judge dismissed the writ
petition of the petitioner-appellant.
[2] The appellant was appointed as Peon on 01.08.1984 in the
office of the Director, Ministry of Micro Small & Medium Enterprise
Development Institute, Government of India, Agartala. On
01.08.2000, he was arrested in connection with an FIR lodged against
him and another, namely Sri Sushanta Majumder, Cashier of the
Small Industries Service Institute, [the SISI in short] by one Mr. K.R.
Sharma, the Deputy Director-in-Charge, SISI, Agartala. The allegation
was that said Sushanta Majumder illegally withdrew an amount of
Rs.6,87,072/- from the account of the SISI from SBI, Agartala Branch
by forging the signature of Mr. Sharma. The police investigated the
case and ultimately submitted the charge-sheet under Sections
468/471/420/409/34 of the Indian Penal Code against both of them
and the same was tried by the learned Judicial Magistrate, First Class,
Court No.7, Agartala, West Tripura in connected case No.G.R 610 of
2000 and by the judgment dated 20.12.2018, the appellant was
acquitted.
[3] Prior to that, pursuant to his arrest on 01.08.2000, the
appellant was placed under suspension vide order dated 09.08.2000
and a departmental proceeding was initiated against him and on
completion of inquiry, the Director, Ministry of Micro Small & Medium
Enterprise Development Institute framed the following charges in the
departmental proceeding implicating him with said Sushanta
Majumder for embezzlement of Rs.6,87,072/-:
ARTICLE I
That the said Shri Satya Sarkar, while functioning as Peon
in the O/o the Dy. Director in-charge, S.I.S.I., Agartala,
during the period on July, 2000 was involved in the
criminal offence towards embezzlement of Govt. money of
Rs.6,87,072/- (Rupees Six Lacs eighty seven thousand and
seventy two only) most illegally and unauthorisely, out of
office bank account vide cheque No.B/4 370833 dt.
20.07.2020 drawn on State Bank of India, H.G.Basak Road
Branch, Agartala.
ARTICLE II
That during the aforesaid period & while functioning as
Peon in the aforesaid office, the said Shri Satya Sarkar
was arrested by the Police Authority on 01.08.2000
against a written statement dt. 30.07.2000 of Shri
Sushanta Majumder, L.D.C., S.I.S.I., Agartala. During
investigation by the Police Authority, West P.S., Agartala,
an amount of Rs.5,00,000/- (Rupees Five Lacs only) and a
Cheque Book bearing No.003709 were recovered from his
custody. As per the letter of S.I.(I.O.), West P.S., Agartala
the said Shri Sarkar was kept under jail custody. The said
Shri Sarkar was suspended with effect from 01.08.2000 by
the said office vide order No.4(16)/SISI/AGT/2000/
837(1) dt.09.08.2000.
ARTICLE III
That during the aforesaid period and while functioning as
Peon in the aforesaid office, the said Shri Sarkar was
involved in the criminal offence towards embezzlement of
Govt. money and kept it in his custody. The police
authority, West P.S., Agartala, during their investigation
recovered a sum of Rs.5,00,000/- (Rupees Five lacs only)
and a Cheque Book bearing No.003709 from the custody of
the said Shri Sarkar and submitted a seizure list. The West
P.S. Agartala, subsequently framed a case No.144/2000
u/s 468/471/420/409 IPC against the said Shri Sarkar
under his confession in the matter.
[4] The Enquiry Officer concluded the inquiry with the following
observations:
ARTICLE - I
He confirmed the encashment of self cheque bearing
no.B/4 370833 dated 20.07.2000 for Rs.6,87,072/- in
absence of Dy. Director-in-Charge, SISI, Agartala on
20.07.2000 stated ` ...................is fact.‟
So it may be stated that his involvement in the criminal
offence towards embezzlement of Govt. money is not
beyond doubt.
ARTICLE - II
As per the letter of S.I.(I.O.), West P.S., Agartala said Shri
Satya Sarkar, Peon, SISI, Agartala-Charged Officer was
kept under jail custody from 01.08.2000 to 08.08.2000,
then to Court jail for further 21 days. He was then
released on bail.
The fact was also confirmed by Shri Satya Sarkar, Peon
SISI, Agartala during the inquiry proceeding.
IT IS THEREFORE CONFIRMED THAT SHRI SATYA SARKAR
WAS UNDER JAIL CUSTODY FOR MORE THAN 48 HOURS.
ARTICLE - III
The Police Authority, West P.S. Agartala, during their
investigation recovered a sum of Rs.5,00,000/- (Rupees
five lacs) only and a cheque book bearing no.003709 from
the custody of the said Shri Satya Sarkar and prepared the
seizure list accordingly.
The Charged Officer, Shri Satya Sarkar, Peon, SISI,
Agartala himself authenticated the correctness of the
seizure list.
From the above observations made on the basis of analysis
of evidences, documents, facts and circumstances, the
Inquiry Authority is of the opinion that the involvement in
the embezzlement of Govt. money of Shri Satya Sarkar,
Peon, SISI, Agartala is not beyond doubt.
THEREFORE THE CHARGES FRAMED AGAINST HIM ARE
PROVED.
[5] After the Enquiry Officer found him guilty, the Director,
Ministry of Micro Small & Medium Enterprise Development Institute,
Government of India vide memorandum dated 19.03.2007 forwarded
the said inquiry report to the appellant giving him opportunity to
submit his representation. Accordingly, the appellant submitted the
representation on 16.04.2007 with a prayer for exonerating him from
the liabilities of the departmental proceeding but the departmental
authority concurred with the findings of the enquiring authority and
penalty of removal from service was imposed on him vide order dated
30.11.2007. Against the said order of penalty, the appellant preferred
an appeal which was also dismissed. However, later on he was
acquitted from the said criminal case as indicated above.
[6] After such acquittal, the appellant approached the Director
for releasing his outstanding pay and allowances along with
consequential benefits w.e.f. 01.08.2000 i.e. when he was placed
under suspension and also prayed for releasing all the pensionary
benefits as his date of retirement expired prior to the pronouncement
of judgment of the criminal court dated 20.12.2018. Thereafter,
getting no redress, he filed the instant writ petition.
[7] Learned Single Judge by the impugned judgment dismissed
the writ petition mainly on two grounds- firstly, that there was a delay
and laches on the part of the appellant in approaching the Court as he
was removed from the service in the year 2007/2008 but after his
appeal was dismissed, he remain silent and after 11 years later on, he
filed the writ petition and secondly, that the acquittal in the criminal
case was not a case of no evidence or clean acquittal rather it was
only observed by the criminal court that the prosecution failed to
prove the charges beyond reasonable doubt.
[8] Before us, Mr. Somik Deb, learned senior counsel
appearing for the appellant argues that the acquittal of the appellant
in the criminal case was an honourable acquittal as no material
against him was found during the trial and moreover, the charges
framed in the departmental proceeding as also in the criminal trial
were identical and common witnesses were examined in both the
departmental proceeding and in the criminal trial and therefore, the
penalty imposed upon the appellant in the departmental proceeding is
liable to be quashed in view of acquittal of the appellant in the
criminal trial honourably. According to learned senior counsel, there
was clear cut finding of the learned criminal court that there was no
evidence against the appellant. Mr. Deb, learned senior counsel also
argues that just because the criminal court in a paragraph incidentally
observed that the prosecution could not prove beyond reasonable
doubt against him, it cannot be interpreted that he was not
honourably acquitted. According Mr. Deb, learned senior counsel, the
judgment of the criminal court is required to be considered in its
entirety without going by consideration of only a stray sentence used
in the judgment. Learned senior counsel relies on a decision of the
Apex Court in S. Bhaskar Reddy and another vs. Superintendent
of Police and another, reported in (2015) 2 SCC 365, wherein at
Para-22 the meaning of expression of "honourable acquittal" was
discussed in the following terms:
22. The meaning of the expression "honourable acquittal"
was discussed by this Court in detail in Inspector General
of Police v. S. Samuthiram : (2013) 1 SCC 598, the
relevant paragraph from the said case reads as under :
[SCC P.609, Para-24]
"24. The meaning of the expression "honourable
acquittal" came up for consideration before this
Court in RBI v. Bhopal Singh Panchal : (1994) 1 SCC
5r41. In that case, this Court has considered the
impact of Regulation 46(4) dealing with honourable
acquittal by a criminal court on the disciplinary
proceeding. In that context, this Court held that the
mere acquittal does not entitle an employee to
reinstatement in service, the acquittal, it was held,
has to be honourable. The expressions "honourable
acquittal", „acquitted of blame‟, „fully exonerated‟
are unknown to the Code of Criminal Procedure or
the Penal Code, which are coined by judicial
pronouncements. It is difficult to define precisely
what is meant by the expression „honourably
acquitted‟. When the accused is acquitted after full
consideration of prosecution evidence and that the
prosecution had miserably failed to prove the
charges levelled against the accused, it can possibly
be said that the accused was honourably acquitted."
[9] Mr. Deb, learned senior counsel also relies on another
decision of the Apex Court rendered in Ram Lal vs. State of
Rajasthan and others, reported in (2024) 1 SCC 175, wherein in
Para-28 it was observed that the expressions like "benefit of doubt"
and "honourable acquitted", used in judgments are not to be
understood as magic incantations and a court of law would not be
carried away by mere use of such terminology. In the said case, the
allegation against the appellant was of alteration of his date of birth in
his 8th standard marksheet to project himself as having attained the
majority at the time of recruitment. 5[Five] witnesses were examined
in the connected departmental proceeding and those witnesses were
also examined in the related criminal trial apart from 8[eight] other
witnesses who were also examined in the criminal trial. The Enquiry
Officer in the departmental proceeding found the charges to be proved
and consequently, the appellant was dismissed from the service. The
subsequent appeal filed by the appellant in that case against the order
of his removal was also dismissed. Simultaneously, in the criminal
trial, the trial court convicted the appellant under Section 420 and
sentenced him to undergo imprisonment for 3[three] years with fine
but the Addl. District and Sessions Judge acquitted the appellant.
Thereafter, the appellant submitted the representation to his
department for his reinstatement and then on refusal, the writ petition
was filed in August, 2008 for quashing the dismissal order dated
31.03.2004. The said writ petition was dismissed and subsequently
the writ appeal was also ended with similar result. Finally, the Apex
Court at Para-12 held as under:
However, if the charges in the departmental enquiry and
the criminal court are identical or similar, and if the
evidence, witnesses and circumstances are one and the
same, then the matter acquires a different dimension. If
the Court in judicial review concludes that the acquittal in
the criminal proceeding was after full consideration of the
prosecution evidence and that the prosecution miserably
failed to prove the charge, the Court in judicial review can
grant redress in certain circumstances. The court will be
entitled to exercise its discretion and grant relief, if it
concludes that allowing the findings in the disciplinary
proceeding to stand will be unjust, unfair and oppressive.
Each a its own facts. [See G.M. Tank vs. State of Gujarat :
(2006) 5 SCC 446, State Bank of Hyderabad vs. P. Kata
Rao : (2008) 15 SCC 657 and State of T.N. vs. S.
Samuthiram : (2013) 1 SCC 598]
[10] Mr. B. Majumder, learned Dy. SGI appearing for the
respondents, places the record of departmental proceeding before us
and argues that the witnesses in both the departmental proceeding
and the criminal proceeding were not exactly same and moreover, the
acquittal of the present appellant was also on benefit of doubt. Mr.
Majumder, learned Dy. SGI further contends that Rs.5,00,000/- along
with one cheque book were recovered by the police from the house of
the appellant and the same were also properly proved in the
departmental proceeding and moreso, the charges framed in the
criminal case and in the departmental proceeding were also not the
same. Therefore, according to Mr. Majumder, learned Dy. SGI, the
punishment imposed upon the appellant in the departmental
proceeding was proper.
[11] We have given our anxious consideration upon the
contentions raised by the learned counsel appearing for the parties
and also meticulously perused the records. In the connected
departmental proceeding, the presenting officer examined total 6[six]
witnesses, namely Mr. K. R. Sharma, Mr. B. Bhattacharya, Mr. P.K.
Deb, Mr. S. Biswas, Mr. N.C. Poddar and Mr. S. Debbarma and from
the side of the appellant, 2[two] witnesses namely, Mr. Subal Haldar
and Mr. Phani Ranjan Sarkar were also examined. But in the
connected criminal case, the prosecution examined atleast 8[eight]
witnesses including Mr. K. R. Sharma, Mr. N.C. Poddar, Sri B.
Bhattacharya, Mr. S. Debbarma and Mr. Phani Ranjan Sarkar who
were the common witnesses examined in both the departmental
proceeding and in the criminal case. The 2[two] witnesses of the
departmental proceeding who were not examined in the criminal case
were Mr. P.K. Deb and Mr. S. Biswas. Said P.K. Deb stated in the
departmental proceeding that on 30.07.2000 Sri K.R. Sharma with the
co-delinquent, Mr. Sushanta Majumder and one Mr. Shyamal Biswas
came to his house and there co-delinquent, Mr. Sushanta Majumder
told that he had withdrawn the said sum of Rs.6,87,072/- from the
bank and further stated that out of fear of life, he did so and the
appellant was behind his fear. He also stated that on 1st August, 2000
again he went to the house of the present appellant with Sri B.
Bhattacharya and others and found police there and there the
appellant from his almirah brought out one yellow packet containing
10 bundles of 500/- rupee notes and a cheque book. Thereafter, they
returned to the office. The statement of this witness was based mainly
on what he had learnt from said co-delinquent, Mr. Sushanta
Majumder and regarding production of 10 bundles of 500/- rupee
notes by the appellant from his almirah to the police. Witness, Mr.
Shyamal Biswas also similarly stated in the said departmental
proceeding that in the house of Sri P.K. Deb on 30.07.2000 said Mr.
Sushanta Majumder [co-delinquent] wrote a confession letter that he
had forged the cheque and withdraw the money and thereafter, Mr.
P.K. Deb and Mr. K.R. Sharma went to the house of the appellant. He
came to know about the involvement of the appellant only from the
confession of Mr. Sushanta Majumder.
[12] The defence of the appellant before the enquiring officer
was that on 29.07.2000 (Saturday) at about 7/7.30 am the co-
delinquent Sushanta Majumder came to his house with a poly bag in
his hand and requested him to keep the bag stating that he got
something for his [Sushanta Majumder] mother and further stated
that he was going to P.K. Deb's house and while returning he would
pick the bag up. Thereafter, the appellant kept it in the almirah.
Thereafter, on 1st August, 2000 the police came to his house with
some office personnel and then he disclosed to the police about
handing over of the packet by Sushanta Majumder and also handed
over the said packet to the police.
[13] From the enquiry report it appears that the enquiry officer
mainly relied on the admission of the appellant about the seizure list
and its content thereof as mentioned below to hold him guilty, though
according to the enquiry officer himself, there were lots of
contradictions in the matter of counting of notes and preparation of
seizure list in the office, opening of the bag etc. The relevant reply as
given by the appellant in said departmental proceeding is quoted
hereunder:
"I.O.> Is the seizure list is true?
C.O.> Yes Sir.
D.A. Yes Sir, the seizure list is true. It is
mentioned there about what things were found
in his home.
It is seen that C.O. authenticated the
correctness of the seizure list.
The D.A. also confirmed the authenticity of the
seizure list in addition."
[14] However, the enquiry officer did not discuss in his report
about the statement of any witness as examined in the said
departmental proceeding either as PW or as DW. The enquiring officer
also took exception of one comment made by defence assistant as a
matter of caution that there was High Court beyond the said enquiring
authority. Regarding Article-I, the enquiring officer observed that the
involvement of the appellant in the criminal offence towards
embezzlement of government money was not beyond doubt and such
observation was also only for the reason that said Sushanta Majumder
had confessed that he encashed the said amount by a self cheque.
Regarding Article-II, the enquiring officer's observation was that the
appellant was in custody for a certain period and therefore, it was
proved. Regarding Article-III, the observation was that as the
appellant himself admitted the correctness of the seizure list of
recovery of Rs.5,00,000/- from his house with one cheque book,
therefore, the involvement of the appellant in the embezzlement of
government money was not beyond doubt. The ultimate and final
conclusion of the enquiring officer himself in respect of Articles-I,II &
III of the charges were, therefore, that the involvement of the
appellant in such embezzlement was not beyond doubt. There was no
such finding of enquiring officer that knowing it to be embezzled
money, the appellant kept the said bag in his custody.
[15] In that backdrop, when the criminal court acquitted the
appellant from the charges in said criminal proceeding, exhaustively
discussed the evidences of the witnesses examined in that case and
also observed as follows:
"It is clearly seen that PW-2, PW-3, PW-4, PW-5, PW-6
and PW-8 all are hearsay witnesses of this case and in the
light of above case reference, their evidences cannot be
relied on. Moreover, it is apparent from the deposition of
PW-1 that he initially lodged this case against accused
Sushanta Majumder who was alleged to have forged the
cheque but he did not have any allegation against the
Peon of their Deparment Satya Sarkar as neither he was
found to have committed any forgery nor he was found to
have abetted any act.
The Prosecution side also could not produce the I/O of this
case to proof the seizure lists and the documents seized by
the I/O in this case and hence, from the entire set of
Prosecution evidences, I find that none of them had the
knowledge of forgery prior to the Complainant of this case
and I find no specific evidence to book the accused Satya
Sarkar in this case and to convict the accused Satya Sarkar
U/S 409/420/468/471/34 of the Indian penal Code,
1860.
As pointed out by Ld. Defence Counsel, it is seen from the
evidence of the Prosecution witnesses that allegation of
forgery is against accused Sushanta Majumder only and
not against accused Satya Sarkar as the later did not have
any power or authorisation to en-cash any cheque from
the SBI bank in the name of the Office of SISI but it was
endorsed with the cashier only and also the accused Satya
Sarkar was never entrusted with any money in that Office
as he was a Group-D employee (Peon).
Now, If we sum up the depositions of all the prosecution
witnesses, it is seen that the Prosecution could not prove
beyond reasonable doubt that on 20.07.2000, the accused
Satya Sarkar, in furtherance of his common intention with
another accused Sushanta Manjumder, committed forgery
of one cheque by forging the signature of the Complainat
Sri K. R. Sharma and withdrew an amount of Rs. 6,87,072
(Rupees Six lakh eighty-seven thousand seventy-two only)
from the SBI, Agartala Branch and thereby committed
fraud and by embezzlement of that money committed
breach of trust so as to convict him U/S
409/420/468/471/34 of the Indlan penal Code, 1860 and
so, the accused Satya Sarkar is entitled to get the benefit
of doubt.
[16] If the judgment of the criminal court is read in its entirety,
we have no doubt in our mind that there was no incriminating
materials, significant in nature, against the present appellant in the
criminal case and therefore, he was acquitted for want of any
satisfactory evidence against him. Though the learned magistrate in a
general parlance in one place wrote that Satya Sarkar was entitled to
get the benefit of doubt but practically such acquittal cannot be
termed as an acquittal on benefit of doubt rather it was a clear case of
honourable acquittal for want of any satisfactory materials.
[17] We are not oblivious of the fact that the power of judicial
review in the matter of disciplinary proceeding is very limited and the
court should not make any venture to reappreciate the evidence as
led in the departmental proceeding sitting as an appellate authority of
said departmental authority. However, for certain purposeful
references, we have indicated in brief about the statements of two
witnesses in the departmental proceeding who were not examined in
the criminal case to indicate that even if said two witnesses would be
examined in the criminal case, the situation would not be changed.
Under such circumstances, certain major lacunae in the enquiry report
are also taken note of as indicated above.
[18] Based on the discussions made hereinabove, it is evident
that the principal witnesses both in the departmental proceeding and
in the criminal trial were same and the charges in both the
proceedings were identical and ultimately in the criminal trial, the
appellant has been acquitted on full consideration of the prosecution
evidences by the criminal court awarding acquittal in favour of him as
the prosecution miserably failed to prove the charge against him. We
are therefore of the view that the appellant is entitled to get the
benefit of such acquittal.
[19] We are not oblivious of the principle that acquittal of the
appellant by a criminal Court does not ipso facto absolve him from the
liability under disciplinary jurisdiction of the department concerned. In
departmental enquiry, penalty can be imposed on the delinquent-
officer on a finding recorded on the basis of "preponderance of
probability". On meticulous scrutiny of the evidence recorded during
departmental proceeding, which are discussed in detail in the
preceding paragraphs, prompted us to come to a clear finding that the
evidences let in on behalf of the department-respondents are found to
be deficient to prove the case on the basis of "preponderance of
probabilities."
[20] Considering the involved facts and circumstances of the
case and acquittal of the appellant in the criminal trial only on
20.12.2018, the delay in approaching the court does not seem to us
to be an indefeasible barrier to grant the appellant of such equitable
relief.
[21] As a result, the impugned judgment and order dated
02.01.2020 passed by the learned Single Judge in W.P.(C) No.1445
of 2019 is set aside. Consequently, the impugned punishment order
dated 30.11.2007 imposing penalty of removal from the service upon
the appellant is quashed. The respondents are directed to release all
the outstanding pay and allowances along with other consequential
benefits w.e.f. 01.08.2000 when he was placed under suspension till
up to the scheduled date of his retirement as arrear along with all
pensionary benefits within 3[three] months from today.
[22] With such observation and directions, the writ appeal is
allowed and accordingly, disposed of.
Pending application(s), if any, also stands disposed of.
JUDGE JUDGE
SUJAY GHOSH Digitally signed by SUJAY GHOSH
Date: 2025.02.07 17:45:40 +05'30'
Sujay
