WP(C) 5108/2003 BEFORE THE HON’BLE MR. JUSTICE B.K. SHARMA JUDGEMENT AND ORDER (ORAL) The petitioner is aggrieved by Annexure-9 and 14 orders dated 11 .10.2000 and 27.12.2002 respectively. By Annexure-9 order, the petitioner was im posed with the penalty of stoppage of two increments with cumulative effect. The penalty so imposed was pursuant to a departmental proceeding initiated and comp leted as per the provisions of ASEB (General Service) Regulations, 1960. Being a ggrieved by the order of penalty, when the petitioner preferred an appeal before the Departmental Appellate authority, the said authority by its Annexure-14 ord er disposed of the same upholding the order of penalty. Being aggrieved, the pet itioner invoked the writ jurisdiction of this Court assailing the legality and v alidity of the said two orders. 2. I have heard Ms. P. Goswami along with Ms. E. Ahmed, learned counsel for the petitioner as well as Mr. N. Goswami, learned Standing Counsel, ASEB. I hav e also perused the entire materials on record and have given my anxious consider ation to the same. 3. While the petitioner was serving as Upper Divisional Assistant (UDA) at Mariani, EHV Grid Sub Station, ASEB, he was placed under suspension by Annexure- 3 order dated 13.10.1997. He was so suspended on the ground of looting ASEB’s mo ney to the tune of Rs. 1,67,411.84. The order of suspension was followed by Anne xure-4 charge sheet dated 4.2.1998 leveling the charges of theft, fraud and dis honesty in connection with the business of the Board or its property. 4. Along with the charges sheet, statement of allegation on which the charg es were based was also enclosed. For a ready reference the statement of allegati on as incorporated in Annexure-1 to the charge sheet is reproduced below: Statement of allegation against Sri Amulya Kr. Gogoi, UDA (U/s), 132 KV Garmur Grid Sub Station, ASEB, Jorhat. Sri Amulya Kr. Gogoi, UDA (u/s) of 132 KV Garmur Grid Sub Station, ASEB, Jorhat is found looted money meant for staff salary of Garmur Sub Station, which consti tutes gross misconduct under ASEB’s General Service Regulations, 1960. Regulation 10 of the said regulations provides that every employee of the Board shall discharge the duties assigned to him with integrity, loyalty and promptitu de, and carry out al lawful and reasonable order of his superior in respect of t he work allotted to him. On the contrary, Sri Gogoi, UDA (u/s), embezzled Board’ s money to the tune of Rs. 1,67,411.84 on 1.10.97 after withdrawing the same fro m the United Bank of India, Jorhat Branch on the same day. On 1.10.97 Sri Dulal Saikia, Resident Engineer, 132 KV Garmur Grid Sub Station, ASEB, Jorhat collected a cheque No. 339939 dtd. 1.10.97 in favour of United Bank of India, Moriani Branch from the Resident engineer, Type-I EHV Grid Sub Statio n, ASEB, Moriani amounting to Rs. 1,67,747.84 (Rupees one lakh sixty seven thous and seven hundred forty seven and paise eight four) only against following bills :- 1. D.B. No. 129 dtd. 29.9.97 (Imprest) - Rs. 700.00 2. DBB. No. 163 dtd. 29.9.97 (leave - Rs. 2,242.00 salary of Sri P. Goswami, SBO (S.G.) 3. D.B. No. 164 dtd. 29.9.97 (Salary of - Rs. 29,394.34 security guards for the month of Sept’97) 4. D.B. No. 165 dtd. 29.9.97 (payment - Rs. 225.00 of par t time sweeper for the month of Sept’97 5. D.B. No. 166 dtd. 29.9.97 (Salary - Rs. 1,34,850.50 of staff for the month of Sept’97) --------------------------------------- Rs. 1,67,411.84 6. Bank commission Rs. 336.00 --------------------------------------- Rs. 1,67,747.84 Sri Saikia, Resident Engineer, deposited the above cheque at United Bank of Indi a, Moriani Branch at around 11.00 A.M. and against the above cheque amount, Unit ed Bank of India, Moriani Branch had issued the following Demand Drafts encachab le at U.B.I., Jorhat Branch. 1. D.D. No. 2143/97 dtd. 1.10.97 - Rs. 49,000.00 2. D.D. No. 2144/97 dtd. 1.10.97 - Rs. 49,000.00 3. D.D. No. 2145/97 dtd. 1.10.97 - Rs. 49,000.00 4. D.D. No. 2146/97 dtd. 1.10.97 - Rs. 20,411.84 Rs. 1,67,411.84 Rupees 336.00 being the Bank commission was deducted by the United Bank of India , Moriani Branch. After collection of the above mentioned Bank Drafts from the U.B.I., Moriani Bra nch, Sri D. Saikia, Resident Engineer, reportedly went straight to the UBI, Jorh at Branch and submitted all the Bank Drafts amounting to Rs. 1,67,411.84 for enc ashment vide Bank Token No. Misc. 37 dtd. 1.10.97 at about 2 P.M. Thereafter, Sr i Saikia went back to his office at Garmur Sub Station and handed over the said Bank Token to Sri Amulya Kr. Gogoi, Sub Divisional Head Asstt. for collecting th e cash amount for the UBI, Jorhat Branch with the verbal instruction to take pol ice escort, since the requisition for police escort was sent to the Jorhat Polic e Station earlier on that day, by the Resident Engineer vide his letter No. REG/ G-13/97/1415. Accordingly, Sri Gogoi, left the office at about 2.30 P.M. and pro ceeded towards the UBI, Jorhat Branch in the Vehicle No. AME 9346 (Petrol Jeep) along with Sri Bharat Kalita, Deptt. Security Habildar. The vehicle was driven b y Sri Tarun Dutta. Sri Gogoi got down from the vehicle in from of the UBI, Jorha t Branch and instructed Sri Bharat Kalita, Habildar and Sri Tarun Dutta, Vehicle Driver to proceed to the Jorhat Police Station for Armed Police escort. Accordi ngly, Sri Kalita proceeded towards the Jorhat Police Station along with the Vehi cle and reported to police station for armed escort party at about 2.50/3.00 P.M . But due to non-availability of the police personnel in the police station Sri Kalita was nto provided with the Armed escort party, and hence they had to wait for the same in the Police Station till at about 4.30 P.M. In the meantime, it was found that Sri Gogoi was lying unconsciously within the premises of the Bank. After getting sense, Sri Gogou informed the Board’s offici als, who were present there at that time on hearing the incident, amongst them S ri Kalita, Security Habildar and Sri Dutta, Vehicle Driver, also present, that s omebody looted the money. On query, Sri Gogoi said that at the time of drawal of money from the cash counter, another two persons were present with him in from of the cash counter. After drawal of money, while Sri Gogoi was sitting on the B ench just in from of the cash counter suddenly one of the persons had shacked on e handkerchief right in from of his face and he felt unconscious and did not rem ember thereafter. Subsequently, a case was registered in the Jorhat Police Stati on vide NO. 431/97 US 380 IPC, following which Sri Gogoi was arrested by the pol ice. Also during the course of investigation, an amount to the tune of Rs. 30,00 0/- (Rupees thirty thousand) being the part of the stolen money had been recover ed from the house of Sri Gogoi by the investigating officer of the Jorhat Police Station. From the above, deliberation, it is apparent that Sri Amulya Kr. Gogoi, UDA (u/s ), himself embezzled the Board’s money amounting to the tune of Rs. 1,67,411.84 on 1.10.97 after withdrawing the same from the UBI, Jorhat Branch, which constit utes misconduct of ’Theft, fraud and dishonesty in connection with the business of the Board or its property in his part, under regulation 10 (b) of the ASEB’s General Service Regulations, 1960, and hence, Sri Gogoi is charged under the sai d Regulations. Sd/- Illegible 3.2.98 Chief Engineer (D) ASEB, Paltanbazar, Guwahati-1 5. In response to the charges leveled against the petitioner asking him to show cause, he submitted Annexure-5 reply dated 18.3.1998 denying the charges. H is defence was that he had withdrawn the amount from the Bank and while was wait ing for escort to come, one unknown person sitting by his side did a trick on hi m and he became unconscious. Thereafter the said unknown person committed mischi ef by taking the amount away from him. The petitioner categorically denied that it was a case of fraud committed by him. The petitioner also expressed his surpr ise as to why the Resident Engineer, who had taken the token from the Bank for w ithdrawal of the amount did not withdraw the amount himself, but instead gave th e same to the petitioner for withdrawal. 6. In due course, enquiry was conducted by appointing Enquiry Officer in wh ich apart from the three listed witnesses, another witness was examined. On conc lusion of the enquiry, the Enquiry Officer submitted his report dated 22.12.1999 concluding that the petitioner intentionally drew the cash amount of Rs. 1,67,4 11.84 and embezzled the Board’s money by making an unbelievable story of looting money from his custody. Accordingly, it was held that the charges of theft, fra ud and dishonesty leveled against the petitioner had been established. 7. On receipt of the enquiry report, the Disciplinary Authority by its lett er dated 3.5.2000 (Annexure-7) asked the petitioner to submit representation aga inst the proposed penalty of reduction to a lower post. Along with the letter, c opy of the enquiry report was also furnished. 8. In response to the said notice, the petitioner submitted his detailed re presentation dated 25.9.2000 (Annexure-8) denying that the evidence and the find ings recorded by the Enquiry Officer had established the charges. Referring to t he criminal case, that was lodged against the petitioner in respect of the incid ent and the alleged recovery of Rs. 30,000/- from his residence, it was pointed that that such a plea made out by police was not correct and in fact an amount o f Rs. 3000/- only was taken out from the house of the petitioner and that the sa id amount had nothing to do with the amount in question i.e. Rs. 1,67,411.84. 9. On receipt of the reply of the petitioner, the Disciplinary Authority pa ssed the impugned Annexure-9 order dated 11.10.2000 holding the petitioner guilt y of the charges and imposing the penalty of stoppage of two increments with cum ulative effect. Being aggrieved, the petitioner preferred Annexure-10 appeal dat ed 5.12.2000 and as noted above, the said appeal also disposed of by Annexure-14 order dated 27.12.2002 upholding the impugned order of penalty. In the meantime , the police submitted final report under Section 173 Cr.P.C. in respect of the criminal case i.e. GR Case No. 939/1997. In absence of any evidence against the petitioner, the Investigating Officer submitted the final report requesting the Court to exempt the petitioner from the liability of the criminal case. As regar ds seizure of the amount of Rs. 3000/- from the residence of the petitioner, it was submitted that as the same could not be established to be the part of the am ount in question, the said amount should also be released in favour of the petit ioner. 10. Based on the said report, the learned Chief Judicial Magistrate, Jorhat acquitted the petitioner upon acceptance of the final report submitted by police with further direction to return the amount of Rs. 3000/- to the petitioner tha t was seized from his residence. 11. Ms. P. Goswami, learned counsel for the petitioner has submitted that ha ving regard to the facts and circumstances, involved in the case, the authority could not have passed the impugned orders on the basis of surmises and conjectur es. She submits that there being no evidence and no finding of embezzlement of t he amount by the petitioner, he could not have been held guilty of the charges a ttributing negligence on his part, which was never the foundation of the charges . 12. Countering the above argument, Mr. N. Goswami, learned Standing Counsel, ASEB has submitted that there being no allegation of any procedural irregularit y in conducting the enquiry, the Writ Court will be reluctant to sit on appeal o ver the findings recorded by the Enquiry Officer, Disciplinary Authority and the Appellate Authority. He also submits that mere acquittal of the petitioner from criminal charge cannot lead to exoneration from the charges leveled in the depa rtmental proceeding. In this connection he has placed reliance on the decision o f the Apex Court reported in (2011) 4 SCC 584 (State Bank of Bikaner and Jaipur Vs. Nemi Chand Nalwaya), in which making distinction between criminal proceeding and departmental proceeding, the Apex Court pointed out the different standards of proof. In the said case, it was held that subsequent acquittal by criminal c ourt will not in any way render completed disciplinary proceedings invalid nor a ffect validity of finding of guilt or consequential punishment. 13. Mr. Goswami, learned Standing Counsel, ASEB has also placed reliance on the decision of the Apex Court reported in (2005) 7 SCC 338 (V. Ramana Vs. A.P. SRTC & Ors.), in which reiterating the scope of judicial review in the matter of departmental proceeding, the Apex Court observed that the Writ Court could not go into the correctness of the choice made by the administrator open to him and the Court should not substitute its decision for that of the administrator. It w as also observed that the scope of judicial review is limited to the deficiency in decision making process and not the decision. 14. While there is no quarrel with the proposition of law laid down by the A pex Court, it will have to be seen as to whether in the present case and in the facts and circumstances involved, the said principles are applicable. So far as the acquittal of the petitioner in the criminal case is concerned, the same was on the basis of the final report submitted by the police. Ms. Goswami, learned c ounsel for the petitioner during the course of her argument also did not try to put emphasis on the acquittal of the petitioner from the criminal charges. Her s ubmission towards assailing the impugned orders are confined to the finding arri ved at by the Enquiry Officer as recorded in the enquiry report and the conseque ntial impugned orders passed by the Departmental Authority and the Appellate Aut hority. 15. Having regard to the distinctive features of criminal and departmental p roceeding, coupled with the fact that in the criminal case, the petitioner was a cquitted in absence of any evidence, I am also not prompted to take the view tha t because of acquittal of the petitioner in the criminal case, he is also entitl ed to get exonerated from the charge in the departmental proceeding. Departmenta l proceeding will have to be judged independently of the criminal charge. 16. The charges leveled against the petitioner as noted above were that of t heft, fraud and dishonesty in connection with the business of the Board or its p roperty. The charges were explained in the form of statement of allegation (Anne xure-1) accompanying the charge memo. The said statement of allegation has been quoted above. If we go by the charge that was leveled against the petitioner, wh at was attributed to the petitioner was embezzled of Board’s money to the tune o f Rs. 1,67,411.84. It will have to been seen as to whether the said charges have been established on departmental enquiry. 17. The Enquiry Officer, in his report, while discussing the depositions mad e by four prosecution witnesses found the following: (i) The alleged recovery of Rs. 30,000/- out of embezzled amounts from the resi dence of the petitioner was not correct and that the amount of Rs. 3000/- which was seized by the police, in fact belonged to the petitioner and accordingly the said amount was later on returned to him. (ii) When the petitioner after collecting the money from the Bank, was waiting f or escort party, one unknown person did the mischief as a result of which he bec ame unconscious, taking advantage of which the amount was taken away by the said person. (iii) Although the petitioner after collecting the money from the Bank was waiti ng inside the Bank for arrival of the escort party for which two of the witnesse s had gone to the police station, but there was delay in arrival of the escort p arty. (iv) The witnesses examined by the disciplinary authority stated in their deposi tions that on previous occasion in case of delay in arrival of the escort party, they used to inform the office, but on the fateful day, they could not do so as they did not get the line. 18. In view of the above, it is an admitted position that late arrival of es cort party could not be informed to the office. It is also evident that the witn esses who were entrusted to bring the escort party, although were informed that the same was not readily available, did not come back to the Bank or informed th e petitioner enabling him to take appropriate measures. 19. In the cross examination, the petitioner had stated that on earlier occa sions also while waiting for the escort party, he used to collect money from the cash counter of the Bank and used to return to the office along with the escort party. 20. The Enquiry Officer discussing the aforesaid evidence in his report made the following observation and finding After going through all the recorded written statements, cross-examination reco rds I have summarized the chronological events as below. 1. Sri Gogoi drew the cash from the cash counter alone at 3-30 P.M. and wai ted upto 3.50 P.M. (as per his own statement). 2. At 4-15 P.M. a bank employee saw him lying unconsciously in a bench in f ront of the cash counter and sprinkle some water on his face and Sri Gogoi gaine d consciousness (as per reported statement of R.E. Mariani dtd. 22.12.97). 3. At about 4-30 P.M. Sri Bharat Kalita the Security Havildar and Sri Tarun Dutta got the information fro the police station and rushed to the Bank. 4. On arrival the were informed by Sri Gogoi about the incident and loss of money and Sri Gogoi was taken to hospital for treatment etc. 5. Sri Gogoi was able to walk upto his bed in upstairs with the help of Sri T. Dutta and Sr. B. Kalita and was also able to recognize Sri Ajit Bhuyan the J ournalist who was under going treatment at the same hospital. 6. Sri Gogoi was fully conscious to request Sri Dutta to make phone call to a person and also handed over some articles to Sri Dutta. 7. Sri Gogoi assured Sri Dutta in front of Sri Kalita on 2.10.97 in the pol ice station that they need not have to worry about the incident because the mone y was insured and even if they are suspended they will get back their jobs later on. From the above chronological events, I found that Sri Gogoi drew the money from the bank in absence of security personal intentionally and thus violated the ord er of the superior and rules of the Board. Further, from the above deliberation, I believe that the story of making Sri Gog oi unconscious and looting of cash is a cooked-up story of Sri Gogoi himself bec ause on the first day of the month normally there is always rush in any bank and it is quite unbelievable that there was no person at that counter area except S ri Gogoi and the so called miscreant. Further, had there been any incident Sri G ogoi could have resist the attempt of making him unconscious by raising alarms e tc. Sri Gogoi in his story tried to impress as that the miscreant gave some stro ng medicine in the handkerchief to make him unconscious for only 25 minutes (i.e . from 3-50 to 4-15 P.M.) and was able to narrate the story. He was also able to walkup to his bed upstairs at the hospital and even recognized Sri Ajit Bhuiya the journalist within a span of about 1 (one) hour. Therefore, I have come to the conclusion that Sri A. Gogoi intentionally drew th e cash of Rs. 1,67,411.84 alone and embezzled the Board’s money by making such a n unbelievable story of looting money from his custody. The charges of theft, fr aud and dishonesty in connection with the business of the Board and its property is thus established. 21. If we go by the aforesaid findings recorded by the Enquiry Officer, what will be seen is that after narrating evidences chronologically and admitting th at the petitioner was found lying in an unconscious state, the Enquiry Officer r ecorded the following finding: From the above chronological events, I found that Sri Gogoi drew the money from the bank in absence of security personal intentionally and thus violated the or der of the superior and rules of the Board. 22. The aforesaid finding is not related to any charge of drawing the amount in absence of security personnel intentionally and violating the order of the s uperiors and Rules of the Board. As noted above, the charge against the petition er was embezzlement of Board’s money and not that of encashing the amount in abs ence of security personnel intentionally and/or violating the orders/rules of th e authority. 23. Needless to say that in a departmental proceeding, the delinquent offici al will have to be apprised of definite charges entitling him to defend the same . In the instant case, it was never the charge leveled against the petitioner th at he was guilty of withdrawing the amount from the Bank in absence of security personnel and that he had violated the orders/rules of the authority. It will be pertinent to mention here that in fact the amount was to be drawn by one Sri Du lal Saikia, the Resident Engineer, who had deposited the cheque amounting to Rs. 1,67,747.84. Against the same cheque amount, the Demand Draft as indicated in t he statement of allegation had been issued. The Resident Engineer submitted the Bank Draft to the Bank for encashment and he was given the Bank token No. Misc. 37 dated 1.10.1997 at about 2.00 PM. There is no explanation as to why said Sri Saikia did not accept the amount and instead went back to his office and handed over the token to the petitioner for collecting cash. 24. The enquiry report further reveals that on the basis of aforesaid findin g on a charge, which was never leveled against the petitioner he has been held g uilty of the charge holding the version of the petitioner becoming unconscious a s a cooked up one. However, at the same time, the finding of the Enquiry Officer is that the petitioner was unconscious for about 25 minutes. While holding the petitioner guilty of the charges, the Enquiry Officer based his finding on surmi ses and conjectures. While doing so, he held the petitioner guilty of a differen t charge, which was never the charge leveled against the petitioner. Thus, what could not be established directly, the Enquiry Officer established the same indi rectly through another charge, which was never the foundation of the charges lev eled against the petitioner. 25. The fact of the matter is that the petitioner after drawing the amount a nd while was waiting for the escort party was confronted with unknown person, wh o did the particular trick as a consequence of which the petitioner become uncon scious, taking advantage of which, the amount was taken away from him. When the fact of the petitioner becoming unconscious is an admitted one including the fac t that during the period of unconsciousness, the amount was taken away by a stra nger, the petitioner on the basis of a charge stated to have been established, b ut which was never leveled against the petitioner could