W.P.(C) No.9306/2009 Page 1 of 26 * 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 W.P.(C) No.9306/2009 Page 2 of 26 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 W.P.(C) No.9306/2009 Page 3 of 26 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. No. Identity of the document Relevancy to the Case Custodian Authority 1. Attendance Register of Samsabad P.O. for the period 29- 05.2000 to 31-05- 2000 To confirm the attendance of myself and other staff S.P.M. Samsabad or S.S.P.O.‘s Agra 2. Original daily a/c of Samsabad P.O. dated 29-05-2000 to 31-05-2000 Containing entry of disputed certificate Sr.P.M. Agra H P.O. 3. D.O.W. of Samsabad P.O. in force during may 2000 To confirm the duties relating to K.V.P. mention in the charge sheet S.S.P.O‘s Agra or S.P.M. Samsabad 4. D.O.W. of Agra H.O. of Sub a/c, mail and S.B. branch inforce during may 2000 To confirm the timings of receipt of mails with the KVP‘s in S.B. branch and Sub A/c branch Sr. P.M. H.P.O. Agra W.P.(C) No.9306/2009 Page 4 of 26 5. Original S.O. slip of Agra H.O. to Samsabad S.O. for 29—5-2000 to 01-6- 2000 To confirm the date of information to Samsabad regarding alleged non- receipt of K.V.P.‘s do 6. Sub A/c branch of Agra H.O. E.B. from 29-5-2000 to 31-5- 2000 Do do 7. S.O. summary of Agra H.O. from 29- 5-2000 to 31-5-2000 To confirm whether the disputed K.V.P.‘s were accounted for at H.O. do 8. F.I.R. lodged by Sr.P.M. Agra H.O. regarding loss of daily A/c of Samsabad, P.O. dated 29-5-2000 Because this document has been replaced by listed documents No.8 do 9. R.B.T.N.C.32 (Transfer Application) of Samsabad. S.O. Sr.No.43 of may 2000 along with advice of payment and Registry receipt Relevant to the payment of disputed K.V.P.‘s S.S.P.O.‘s Agra or S.P.M. Samsabad. 10. Original paid vouchers of KVP‘s worth Rs.85200/- also charge on 29.5.2000 of Samsabad P.O. Mentioned in the subject matter of charge sheet Sr. P.M. H.O./SS.P.O‘s Agra/D.A.A. (P. Lucknow) 11. E.B. of mail branch of Agra H.O. dated 29-5-2000 to 31-5- 2000 To confirm the actual time of receipt of mail from Samsabad. On 29-5-2000 Sr.P.M. H.O. 12. K.V.P. issue journal of Samsabad S.O. for the month of may 2000 Relevant to cross examination of Shri Bhagwati Sr.P.M. H.O.S.S. P.O‘s Agra W.P.(C) No.9306/2009 Page 5 of 26 Prasad Sharma P.A. Samsabad. With his W.S. listed document No.11 13. Long book of one year T.D. of Samsabad S.O. dated 29-5-2000 Do S.P.M. Samsabad 14. Order book of Samsabad, S.O. dated 29-5-2000 to 31-5-2000 Relevant to my relief from Samsabad S.O. on 31-5-2000 Do 15. Error Book of Samsabad S.O. for May 2000 Relevant to irregularity noted relating to subject matter of charge sheet Do 16. Preliminary enquiry report of the present case To impeach the preliminary enquiry officer‘s Shri Babu Lal Shri R.S.Nigam Shri Abdul Sattar S.S.P.O.‘s Agra 17. Charge report of S.P.M. Ship of Samsabad S.O. of 3105-2000 Relevant to transfer of charge Samsabad S.O. to Prem Singh P.A. Samsabad do or C.O. 18. Cord, Level Seal & bag of mail bag of Samsabad S.O. dated 29-5-2000 preserved at the time of opening the bag at Agra H.O. Relevant to E.B. No.364 dated 30-5- 2000 listed document No.4 Sr.P.M. H.P.O Agra 19. Cord, Level Seal & bag of mail bag of Samsabad S.O. dated 29-5-2000 opened at Agra H.O. on 30-5-2000 Do Do 20. Sub A/c branch Agra H.O. E.B. No.104 Mentioned in E.B. No.105 of Do W.P.(C) No.9306/2009 Page 6 of 26 dated 30-5-2000 S.B. branch of Agra H.O. listed document No.7 21. Sub A/c branch Agra H.O.E.B. No.-362 dated 30-5-2000 Referred in W.S. of Shri Prem Singh P.A. Samsabad. Listed document No.9 Do 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 W.P.(C) No.9306/2009 Page 7 of 26 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. W.P.(C) No.9306/2009 Page 8 of 26 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 W.P.(C) No.9306/2009 Page 9 of 26 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- W.P.(C) No.9306/2009 Page 10 of 26 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 W.P.(C) No.9306/2009 Page 11 of 26 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 W.P.(C) No.9306/2009 Page 12 of 26 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 W.P.(C) No.9306/2009 Page 13 of 26 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 W.P.(C) No.9306/2009 Page 14 of 26 process and not the