CGRAM'. /¢, W? Vgiw/ - H!GH COURT OF CHHA TISGARH AT BIL SPUR WritN Petition No 369311 997 Hon’ble Shri SR. Nayak, CJ & Hon‘bte Shri Dim) Raosaheb Deshmukhw. _S_hri Shri S.K.Beriwal, Prateek Sharma. ieamed learned Standing Counsel Counsel for the for petitioner. respondents. Q R D E R (Passed on 31 s August 2006) Deshmukh, J. ln this writ petition under Articles 226 and 227 of the Constitution of hing the order dated 26’” June 1997 (Annexure P14) passed indie for quas by the Central Administrative Tribunal (for short the Tribunal) in Original Application No. 730/1994, the sole question of law that arises for determination is whether in View of the acquittal of the petitioner in Criminal Case No. 208/1992 under Section 409 l.P.C. for committing petitioner for disbursement to a depositor, the order of removal of the betitioner from service on proof of charge of failure to maintain absolute integrity and devotion to duty, as required under Rule 3 (mi) and 3 (1) criminal breach of trust relating to Rs.50,000/- of the Central Civil ervices (Conduct) Rules 1964 (hereinafter referred m) aa‘é. kept in the cash box of the S PET!T!ONER : C.P.Sharma. Sharma, 5/0 Shn‘ Mukunda Omce, Ex—Time Bond Postal Assistant Ofme, Ispat Bhawan Bachar Byure Bhiiai, regident of Quarter Type-2, Post and Telegraph Cokmy, sector—6, Bhilai, District Durg, Versus RESPONDENTS 1. The Union » . & Telegraph of mdia. Through‘Secretary 2. Senior Department, New Delhi. Dévision, Superintendent of Post Omces MP. CMc Centre Bhitai, District The Region, Direetor, Raipur. Pasta} Services. Raipur. MP. Centra! as the Rules cf 1964) read with Rule 103 of Posts and Te!egraphs F.H.B. V0}. l is contrary ta law. and therefore‘ liabie t0 be 5et aside. 2. The factual mamx not under dispute is that: Petitioner was posted as Postal Assistant‘ Bhilai-1 from 17.10.1985. 0n 9.10.1990 he worked as 3avings Bank Assistant and obtained an advance of Rs.20,000!— from the treasurer to start the days' bueiness. After transacting. when the baiance of Rs.282.25 Ps. remained with him at 1 1 .15 hours. he further obtained advance of Rs.50.000l- (five bundies of Rs.100/-) from the treasurer $mt. Pushpa Gregary for making payment of tinai withdrawal of R$.47.500/- in respect of MIS Account No. 10200. The petitioner had asked the depositor to come on 9.10.1990 to receive the payment. However. the depositor did not visit the post-office tiii 3.00 PM. on 9.10.1990. The petitioner wae provided with an iron cash box with lock and key for sate custody of cash during working hours. The counter of the petitioner was such that no member of the pubiic coutd have access to his cash box. The petitioner out the bundies in the cash box. He made payment of Rs.500;‘- from one bundle and put the remaining currency notes again in the cash box above the four bundles. Thereafter. while the petitioner was to make payment of Rs.1250/— and Rs.750/- to some MIS account holder, he noticed at 11.45 hours that 4 bundles of currency notes of the denomination of Rs.100l- amounting to Rs.40.000/- were missing from the cash box. The petitioner reported the matter immediately to the ASPM (SB) who stopped all counter transactions and search was made. The money could not be traced. The incident was reported to the potice at 13.10 hours by the ASPM. After investigation. a criminal prosecution under Section 409 l.P.C. was launched against the petitioner which resulted in acquittal of the petitioner vide iudgment dated 18.6.1992 passed in Criminal No. 208/1992 on the the Depanmental Enquiry: No,10200 although the depositor . had not attended the S account counter at the point of time. He reported missing of 4 hundres did not suspect any omciaf present in the emce. He failed to account for RSAOOOOI- (Rs. Forty thousand) violating Rule 103 Curmncy 5.400031- notes from of his Rs. Cash 100A §ox Denaminatian, at about 1145 bank hrs‘ bundles The omcia‘ worth ‘ and 3 {mm ofCCS (Cenduct) Rules 1964.” The Enquiry Officer vide his repert dated 31.1.1994 Annexure A-15 held the charge’agalnst the petitioner proved. The petitioner preferred an appeal to the Post-Master General which was also dismissed vide order dated 12.12.1994 (Anhexure A-14). Aggrieved by the said ‘order. the pelitioner preferred O.A.No.?30/1994 before the Tribunal. 4. Therespondents herein contended before the Tribunal that the burden ef proof to show as to how the amount of Rs.40‘000/~ disappeared from his cash box was entirely on the petitioner. The charge in the criminai case and the departmenmi proceedings was not identical since the charge sheet issued by the Disciplinary Authority was for not maintaining absolute integrity and devotion to duty. as required under as required under Rule 3 (1m) and 3 (1) (ii) ef the Rules sf 1964 whereas the criminal prosecution was for committing criminal breach of trust. 5. The Tribunal reiected the petitioner's contention and agreed with the {espondents herein that the charges in the criminal case and the departmental proceedings were not identical. it was held that the emphasis in the Departmental Enquiry was on non-adherence of Rules relating to the loss of Government money for which the petitioner was squarely accountable. 0n these grounds. G.A.No.730/1994 was dismissed. S. Shri Prateek Shanna. teamed counsel for the petitioner placed reliance on Capt. M. Paulanthony v. Bharat Gold Mines Ltd. and Another’ and GMIank v. State of Guiarat and Othersz white contending that the finding recorded by the Tribunal was perverse and without application of mind since the petitioner was. on the same facts. acquitted in the criminal prosecution which iudgment had become final. The impugned order passed against the petitioner by the Tribunal was. therefore. liable to be set aside. On the other hand. Shri S. K. BeriwaL learned counsel for respondents contended that the charge against the petitioner in the criminal prosecution and the Departmental Enquiry was not identical. The act of the petitioner was of gross negligence despite the fact that he had been provided with a cash box with lock and key and the Q 1. (1 999) 3 SCC 679 2. (2006) 5 SCC 443 ~ ’ fact that the situatien of his counter was such that no one ffom outside could !ay his hands on the currency notes ins§de his cash box. it was crystal clear that the petitioner had failed to maintain absolute integrity and elevation to duty, as required under Rule 3 (1)6) and 3 (1) (ii) of the Rules 1964. it was also argued that the petitioner offered no expianation as to why he obtained an advance of Rs.50,000l- from the Assistant Treasurer at 11.15 hours atthough the depositor of MIS Account No.10200 did not turn up at his counter till 3‘00 PM. The charge in the criminai prosecution was of criminai breach of trust whereas the charge in the departmental proceedings was of faiiure to maintain absolute integrity and devotion to duty. 0n these premises, it was urged that this petition was liable to be dismissed. 7. Having considered rival submissions, we have perused the record of the departmental proceedings. The petitioner was working as Postal Assistant at the Savings Bank Counter at Bhilai. While starting the day’s work on 9.10.1990. he initially obtained an advance of Rs.20.000!- from the Treasurer and made payments therefrom to the depositors. Thereafter aithough the depositor of MIS Account No.10200 did not turn up at his counter at the relevant time, he obtained another advance of Rs.50‘OOO/- comprising of 5 bundlesof Rs.100/- currency notes at 11.15 hours. it is not disputed that the money was kept by him in the cash box. it is also not disputed that cash box was provided with lock and key. Since the petitioner had obtained an advance of huge amount of Rs.50.000/-. it was his duty to ensure that the amount was safeiy locked inside his cash box and to act with due care and diligence since the depositor had not turned up. At 11.45 AM, all of sudden, the petitioner reported that Rs.40‘000/- frcm his cash box were stoien. During departmenta! proceedings‘ it was found that neither any member of the pubiic could Kay his hand from outside zhe saunter to the money kept in the cash box of zhe petitiener ner did the petiticner suspect any other empioyee for removing the money from hie cash box. Thus. there is not even an iota of dcubt that the petitioner being a trustee of the huge cash amount in his cash box faiied to take reasonable care and to act with diligence in respect of the same and thereby failed to maintain devotion to duty or maintain integrity. The charge in the criminai prosecution and the departmental proceedings was not identical since the petitioner was charged for committing criminal breach of trust by misappropriating the money whereas the charge in the departmental proceedings was of failure to maintain absolute integrity and devotion to duty, as required vide Rule 3 (1)(i) and (ii) of Central Civil Services (Conduct) Rule 1964 and Rule 103 ofP & T F.H.P. Volume l. 8, ln Capt. M. Paulanthony (suprat the facts were that the appellant was a Security Officer in a Government undertaking and was placed under suspension and disciplinary as well as criminal proceedings were initiated against him on the ground that in a police raid mining sponge gold ball Weighing 4.5 grams and 1276 grams of gold-bearing sand were recovered from his house. The appellant was acquitted in the criminal case with the categorical finding that the prosecution has failed to establish‘its case. The appellant was dismissed from service on the basis of the findings recorded in the disciplinary proceedings. The request of the appellant for his reinstatementin view of his acquittal in the criminal case was turned down and his departmental appeal against the dismissal also faiied. The Apex Court observed as under: “There is a consensus of judicial opinion on a basic / principle that proceedings in a criminal case and departmentai / i __¥ graceedings can gQ on simultaneousiy. except where deparimentai proceedings and criminal case are based on the same set of facts and the evidence in both the proceedings is comma. Basis h: this wopgsition is that proceedings in a criminat Gase and departmentai proceedings operate in distinct and different jurisdiGtionai areas. in departmental proceedings, factors epeiai‘mg in the mind ei the diecipi'maw authoi'ity may be many, such as enforcement of discipline, or to investigate ievei of integrity of deiinquent from that required in a criminal case. Whiie in departmentai proceedings, the standard oi proof is one of preponderance of erobabiiities‘ in a criminal case the charge has to be proved by the prosecution beyond reasonable doubt.” It was further observed as under: "in the present case‘ criminal and departmental proceedings were based on identicai set of facts, namely, raid conducted at the appellant‘s residence and recovery of incriminating articies therefrom. Findings recorded by the Enquiry Oh‘icer indicate that charges against the appeiiant were sought to be proved by poiice officers and Panch witnesses who had raided the appeiiant’s houee and had affected the recovery. They were the oniy witnesses examined by the Enquiry Omcer who by reiying upon their statements, came to conciusion that the charges were estabiis'ned against the appeiiant. The same witnesses were examined in the criminai case but the court. on a consideration of entire evidence, came to a conclusion that no search was conducted nor was any recovery made from the appeiiant’s residence. The appeiiant was acquitted by throwing out the whole case of the prosecution. in this situation, therefore, where the appeiiant is acquitted by a iudiciai pronouncement with the findings that the ‘raid and recovery’ at his residence were not proved, it would be unjust, unfair and rather oppressive to aiiow the iindings recorded at the ex parts departmentai proceedings, to stand. The facts and evidence in departmental as Well as in riminal proceedings were the same without their being any iota otaditierence. The distinction which is usually drawn between departmental and criminal proceedings on the basis of approach and burden of proof, would not be applicable to the instant case." Q. ln G.M.Tank (supra). the appeilant was charged for offence of acquisition of movable and immovable properties disproportionate to his known sources of income and was dismissed from service after holding departmental enquiry. The writ petition filed by the appeliant was dismissed. it was held that the departmental proceedings and the criminal /7V c case wefe based an identicai and similar set of facts and the charge in the departmental case against the appeuant and the charge before the erim'mm court were one and the same. Rewing upon Capt. M. Pamanthony (supra), the judgment of the learned single Judge as weil as the Divisien Bench in L.P.A. were set aside while aiiowin the appeal. 10. Having considered the caee law cited by the petitioner with utmost circumspection, we find that the facts of the present case stand on a compieteiy ditferent footing. it is now welt settled that the parameters. of adiudication ef a criminal prosecution and a departmental proceedings are quite different though they may be based on the same facts. in a criminai secution the burden of proving the charge beyond the shadow of doubt is wholly on the prosecution. On the other hand, a departmental prooeedtng is decided uoon preponderance ot probabilities. ln the present pro ease. although the criminat prosecution case and the departmental proceedings were based on the same facts. yet the charge in both were not identical. The charge in the criminal case was one of criminal breach of trust whereas the charge in the departmental proceedings against the petitioner was one of failure to maintain absolute integrity and devotion to duty. The acquittal of the petitioner in criminal prosecution under section he took all necessary precautions and acted with diligence to prevent the loss of huge public money from his cash box. The circumstances in which the petitioner obtained advance much before the arrival of the depositor. the location of the cash box and its inaccessibility to the general public to explain th at ‘409 l.P.G. did not in any manner absolve him of the burden from outside and the fact that the amount of Rs.40,000:'— disappeared reiy points towards the petitioner and reveals a complete failure on edle of suspicion without the petitioner having moved from the seat the ne the part of the petitioner to maintain absolute integrity and devotion /’/E’J,‘l squa /V/r/ g 3 perused the iudgment rendered by the Crimina‘ m Neither there is any deta'ned digcussion of the duw, We have alsc {acts nor any gogent Cou the petitioner reason has be ft of nformed abeut the the web; on the basis m observing that the We cannot resist fro k proceeded to acquit that he had prompth; i ded by the teamed 5rimtnat Court did not reveat proper en exwessed there‘m. RSAO‘OOOL from his cash box. fmdings recor recharge apoticattoh of ‘rudrciat of hug oceedings where though based on the o be accepted‘ it would r h custodian of public money to let it amount to stances mind. Be as it may. a civit servant who ts t e amount of pubtic money can‘ mstance‘ be allowed under no circu n a deoartmentat pr f a completely different nature. same facts. lf the oontention of the oetitioner wast to reap the benetrt of his acouittat i the charge wee o giving a license to suo disappear without being accountable for it. in the that facts the and petitioner circum failed to the case. we are of the considered opinion of e could not offer evotion to duty since h maintain a cash box although he did not move from his seat or from his counter. at bsolute integrity and d pearance of ReAOQOOI— from his any expianation whatsoever for the disap ney disappeared. c money are wholly accountable if o have custody of oubli huge amount of public money disappeared there being even a reaeonabi having been exercised to orevent it. e of the considered 11 . 1994 by the opinion that ed after obtaining the advanee and before the mo any tim Civii servants wh from their custody without e explanation for due care and diligence in view of the aforesaid discuesion. We ar the dismissal of Original Application No. 730i t in this writ petition which is Tribunal is wholly justified. There is no men accordingly dismissed. ix There shalt be //*/’ ‘ no order as to costs. sai— a DESHMUKH r‘ \ DImPnAosAHE Judge i sol— \ i chief Justice ‘ \ i i F ‘\ K 1 i i i ‘