IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN TUESDAY, THE 27TH SEPTEMBER 2011 / 5TH ASWINA 1933 WP(C).No. 27258 of 2008(S) -------------------------- PETITIONERS: --------------- 1. UNION OF INDIA, REPRESENTED BY SECRETARY DEPARTMENT OF TELECOMMUNICATIONS, NEW DELHI. 2. CHIEF GENERAL MANAGER, CHENNAI, TELEPHONES BSNL, CHENNAI – 78. 3. GENERAL MANAGER (TS) & ENQUIRY OFFICER, OFFICE OF THE CHIEF GENERAL MANAGER, SOUTHERN TELECOM REGION, CHENNAI. BY ADV. SRI.MATHEW K.PHILIP, C.G.C RESPONDENT: --------------- RAJESH KACHHAP, JOINT CONTROLLER OF COMMUNICATION ACCOUNTS, OFFICE OF THE CONTROLLER OF COMMUNICATION ACCOUNTS, DEPARTMENT OF TELECOMMUNICATIONS 5TH FLOOR, DOORSANCHAR BHAVAN, THIRUVANANTHAPURAM. ADV. SRI.S.GOPAKUMARAN NAIR, SENIOR ADVOCATE FOR R1 SRI.M.CHANDRA BOSE FOR R1 SRI.A.RAJASIMHAN FOR R1 DR.ABRAHAM P.MEACHINKARA FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 6/09/2011, THE COURT ON 27/9/2011 DELIVERED THE FOLLOWING: W.P.(C) NO.27258/2008 APPENDIX PETITIONER'S EXTS: EXT.P1: COPY OF THE O.A.NO.301/2007 ON THE FILE OF CAT ERNAKULAM. EXT.P2: COPY OF THE OBJECTION FILED BY THE RESPONDENT IN O.A.NO.301/2007. EXT.P3: COPY OF THE REJOINDER FILED IN O.A.NO.301/2007 EXT.P4: COPY OF THE FINAL ORDER IN O.A.NO.301/2007. RESPONDENT'S EXTS: EXT.R1(a): COPY OF M.A.NO.405/2007 EXT.R1(b): COPY OF M.A.NO.495/2007 EXT.R1(c): COPY OF PROMOTION ORDER DT.16.6.2009. //TRUE COPY// PA TO JUDGE “CR” C.N.RAMACHANDRAN NAIR & P.S.GOPINATHAN, JJ. -------------------------------------- W.P.(C)No.27258 OF 2008 -------------------------------------- Dated this the 27th day of September, 2011 J U D G M E N T ~~~~~~~~~~~ P.S.Gopinathan, J. The respondents in O.A.No.301/2007 on the file of the Central Administrative Tribunal, Ernakulam Bench are the petitioners. The respondent herein is the applicant before the Tribunal. The respondent was functioning as Deputy General Manager Finance and Accounts. On surprise inspection, certain irregularities regarding the payment of bills passed by the respondent were noticed. Thereupon, vigilance enquiry was conducted. On the basis of the materials collected during the preliminary enquriy, a case as Crime No.R.C.A No.MA1/2003 for offence under Section 120B, 420, 467, 468 and 471 IPC and under Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988 was registered against the respondent and two others. The Central Bureau of Investigation (CBI), after further investigation filed Annexure-A1 report before the Principal Special Judge for CBI cases, Chennai on 7.1.2005, W.P.(C) No.27258/2008 2 reporting that the procedures laid down were not being implemented by the witnesses and other officials of BSNL, Chennai Telephones. But those irregularities were committed without any malafide intention and because of that there is no loss to Government of India. Further, it was stated that it had come to the light that the respondent made various purchases; passed himself as Deputy Financial Advisor/Deputy General Manager and received the payments. Materials on record of the case would show that he had overstepped and negligent while performing official acts. With this statement, the case was requested to be referred to the department for initiating regular departmental action for major penalty against three accused persons for failure to maintain absolute integrity and for having acted in a manner unbecoming of a Government servant under Rule 3(1)(i) and 3(1)(iii) of the Central Civil Services (Conduct) Rules, 1965. By Annexure A2 order, the Special Judge accepted the report and the investigating officer was permitted to return the documents to the department concerned. Thereafter, the department initiated actions against the respondent. W.P.(C) No.27258/2008 3 2. Annexure-A3 memorandum of charge along with statement of imputations was served upon the respondent. He was called upon to file his written statement. Assailing Annexure-A3 charge, the respondent moved the Tribunal below seeking an order to quash Annexure-A3 charge sheet and for other incidental reliefs. The Tribunal below while allowing the application quashed Annexure-A3 charge sheet with liberty to the petitioners to proceed against the respondent for minor penalty proceedings. Assailing the above order, this Writ Petition is filed under Article 227 of the Constitution of India. 3. We have heard the Standing Counsel for the petitioners and Sri.S.Gopakumaran Nair, the learned counsel appearing for the respondent. We notice that Annexure-A3 charge sheet contains 12 articles pertaining to the misappropriation. The total amount covered by the charge sheet would come to Rs.4,27,966/-. Allegations are of very serious nature. Going by the order impugned, we find that the Tribunal below had given undue regard for Annexure-A1 refer report and Annexure-A2 order, whereas Annexure-A3 was ignored. From W.P.(C) No.27258/2008 4 Anneuxres-A1 and A2, we find that no head or tail can be made out of it. Both are not self speaking. Though refers to the statement of witnesses and documents seized during the investigation neither Annexure-A1 nor Annexure-A2 would contain a summary of the evidences collected. There is a statement in Annexure-A1 that no loss was caused to the Government of India. On what basis it was stated so in Annexure-A1 is not at all revealed out. Therefore, Annexure-A1 cannot be relied upon to conclude that no loss is sustained. For the best reason known to the respondent even the First Information Report was not produced before the Tribunal or before us for perusal to appreciate the nature of the allegations basing upon which the case was registered against the respondent. A reading of the imputations in Annexure-A3, along with the connected documents, would show that the allegations against the respondent are of very serious nature. The allegations include forgery, falsification and breach of trust. The amount would come to Rs.4,27,966/-. The learned counsel for the respondent submitted that the allegations are not supported by material documents. Annexure-A3 would show that the W.P.(C) No.27258/2008 5 argument advanced by the learned counsel has no merit at all. Documents in support of allegations are listed one after another. Persuaded by the persistent argument advanced by the learned counsel for he respondent, we directed the standing counsel to ascertain whether there are documents in support of the allegations in Annexure-A3 charge sheet. After verifying the files, he would assert. One of the allegations against the respondent is that without obtaining the approval from the General Manager, the respondent manipulated a document whereby certain other items were ordered to be purchased; and a Thoshiba Note Book Computer worth Rs.1,15,560/- was also purchased. The further allegation is that the respondent while relieving the office, the said Note Book was not returned. According to the learned counsel for the respondent, the Note Book was purchased with due sanction and it was returned when the respondent was relieved from the office. The respondent was directed to produce the receipt witnessing the return of the Note Book. Reasonable time was granted to the respondent to produce the document. But, the respondent could not produce any document evidencing the return of the Note Book. W.P.(C) No.27258/2008 6 Therefore, as things now stand, the petitioners had got sufficient documents in proof of Annexure-A3 charge. Going by Annexure- A3 with appended documents, we are not in a position to conclude that Annexure-A3 charge is without any basis. On the other hand, the documents prima facie establish a case against the respondent to be proceeded with disciplinary proceedings for major penalty. It is pertinent to note that in Annexure-A1 there is report that there was failure to maintain absolute integrity, negligent while performing official acts and the delinquents had acted in a manner unbecoming of a Government servant. This statement stares at the respondent. There is no good reason to ignore the above statement. 4. The learned counsel for the respondent giving much reliance to Annexure-A1 report and Annexure-A2 order vehemently argued that the order of the Tribunal is justified. The learned counsel had also relied upon the decision reported in Tank v. State of Gujarat [2006(3)KLT 514(SC)]. That is a case in which the delinquent was exonerated by the Apex Court on reasoning that the criminal court on same set of evidence W.P.(C) No.27258/2008 7 honourably acquitted. As against that, the Apex Court, later, in State Bank of Bikaner & Jaipur v. Nemi Chand Nalwaya [2011(4)SCC 584], held that subsequent acquittal by criminal court will not in any way render a completed disciplinary proceedings invalid nor affect the validity of guilt or consequential punishment. Let it be so, with reference to the case on hand, we find that dictum laid down in the above cases has no application at all because in this case, there was no criminal trial. Without mentioning any material collected in investigation CBI requested for dropping further prosecution and to proceed with action for major penalty. The Special Judge, to say moderately, blindly endorsed to the report of CBI. That means the Special Judge also agreed with the proposal for major penalty. In such circumstances, the Tribunal below exceeded in its jurisdiction to quash Annexure-A3 with liberty to the petitioners to proceed with for minor penalty. At no stretch of imagination we cannot follow the logic. Since Annexure-A3 contains more than sufficient allegation to proceed with major penalty and supporting documents are listed, the Tribunal grossly erred in setting aside Annexure-A3 and to give liberty to W.P.(C) No.27258/2008 8 the petitioners to proceed for minor penalty. The order of the tribunal lacks reasoning and prudence. The fact that CBI had filed report requesting to drop the prosecution is not at all a reason to interfere with the disciplinary proceedings. The Tribunal restricted the action for minor penalty without giving any valid reasons. At the stage of charge sheet, judicial interference is permissible, only if the allegations do not make out a case for initiating proceedings. Referring to Annexure-A3, the defence has no case. On the other hand, the allegations in Annexure-A3 is very grave which requires action for major penalty and not liable to be stopped basing upon Annexure-A1 or A2. The Tribunal was not at all justified in interfering with the disciplinary proceedings. The Tribunal had grossly erred and exceeded in its jurisdiction. Therefore, the order impugned is not at all sustainable and liable to be interfered with. 5. In the result, this Writ Petition is allowed. While setting aside the order impugned, the application before the Tribunal would stand dismissed. We direct the petitioners to complete the enquiry proceedings within a period of three W.P.(C) No.27258/2008 9 months from the date of production of a copy of this judgment. There will be no order as to costs. (C.N.RAMACHANDRAN NAIR, JUDGE) (P.S.GOPINATHAN, JUDGE) ps