I I HIGH COURT OF CHHATTISGARH ;AT BILASPUR Writ Petition (S) No.6276 of 2009 Present: Smt. Fouzia Mirza, Assistant Solicitor General of India for the petitioners. Shri N. Naha Roy, counsel for the respondent. Division Bench: Hon’ble Shri Dhirendra Mishra & Hon’ble Shri R.N. Chandrakar, JJ. O R D E R (Passed on [$%November, 2010) The following order of the Court was passed by R.N. Chandrakar, J. 1. By the instant petition, the petitioners have prayed for quashing of the order dated 20m August, 2009 (Annexure-P/1) passed by the Central Administrative Tribunal, Jabalpur Bench, Circuit Camp, Bilaspur (for short ‘the Tribunal’). Briefly stated facts of the case are that disciplinary proceedings were initiated against the respondent on the allegation that while working as Extra Departmental Branch Post Master Khadgaon (Chirmiri). he defalcated and misappropriated a sum of Rs.2,224/— between 18-1—1988 and 7-4-1988 and \,punishmentilof dismissal from service was imposed. However, statutory / PETITIONERS: 1. Union of India, Through the Secretary, Department of Postal Services, New Delhi 2. The Post Master General, Chhattisgarh Circle, Raipur (CG) Pin 492001 3. The Superintendent of Post Office, Raigarh Division, Raigarh (CG) Pin 496001 Versus RESPONDENT: Ganga Prasad Pandey, S/o Shri Ram Sipahi Pandey, aged about 40 years, R/o Chanwaridand, P.S. Manendragarh, District Korea (CG) appeai of the respondent was allowed and the Appellate‘? Authority after setting aside the penalty ordered de novo enquiry. The Sqmerintendent of Post Office vide order dated 30th January 2001 (Annexuré_A/4) imposed penalty of removai from service. No appeai was preferred agaiin‘st the above order of punishment. The respondent was also facing crimina.‘ prosecution 'under Criminal Case No.526/2000 precisely on the same itncident and \i allegations for offence under Section 409 of the IPC and learni‘ed Judiciw Magistrate 13‘ Class Manendragarh Vide Judgment dated ‘ 19 9 2007 (Annexure—A/5) acqurtted him of the charge under Section 409 of tht [PC With a finding that the prosecution has failed to prove the charge agaiamst the fa} The respondent made a representation to the Superintendent Post Ofifiee on 3rd October 2007 (Annexure-A/6) and prayed for setting aSIde the orlier of removal from serwce dated 30‘“ January 2001 and to reinstate him in se plice on the ground that he has been acqUItted of all the charges by the Cduii Thereafter on 14—1—2008 the respondent preferred an appeal before the P , sat ster General (Annexure—A/7) against the order dated 30‘“ January 2001i i l assed by the Superintendent of Post Office and prayed for reinstatement in‘ \ i ii. respondent/accused beyond all reasonable doubt. i service with all consequential benefits. The Superintendent Post Office vide ‘ \ order dated 8th February 2008 (Annexure—A/1) communicated the respondent that his representation dated 3rd October, 2007 was forwarded to the Circle V Office from where it has been informed that punishment has been imposed as the respondent was found guilty in the departmental enquiry and. therefore, his representation is tiled. xe.»A . 4 p a 4. The respondeht'filed Original Application before the Tribunal and prayed for quashing of the order dated 8-2-2008 (Annexure-A/1) and further prayed for direction to the petitioners/respondents to consider his case for reinstatement with‘full back wages. The Tribunal by the impugned order allowed the application of the respondent and ordered reinstatement and quashed , ‘ penalty of removal inflicted vide order dated 30‘“ January 2001 and directed reinstatement in service forthwith without any back wages. It has been ;.« further observed that in case there is delay beyond the period of two months, the applicant would be entitled to salary and all back wages with consequential benems as if he was reinstated w.e.f. 21—8-2009. 5. Smt. Fouzia Mirza, learned Assistant Solicitor General of India appearing on behalf of the petitioners vehemently argued that it is settled law that the Court should not interfere with the administrative decision and award of punishment in disciplinary proceeding unless the same was illogical and suffers from procedural impropriety or was shocking to the conscience of the Court in the sense that it was in defiance of logic or moral standard. Acquittal ‘of the espondent does not ipso facto absolve him of the liability under the disciplinary jurisdiction as the criminal proceeding and departmental proceeding operate on entirely different footing. The impugned order has been passed by relying upon the decision of the Supreme Court in G.M. Tank Vs. State of Gujarat & Anr. {2006 (4) Supreme 740}. However, they; '3 . i facts of the present case are distinguishable for the reason that one witness ’ namely, Shri S.R. Paikra, a depositor who was examined during departmental proceeding, was not a witness in criminal trial and he clearly deposed against the respondent in the departmental proceeding. The removal order has been passed by considering the admission of the charges I r by the respondent herein and once the charges being admitted, they are not required to be proved. The Tribunal failed to consider theifact that the respondent was acquitted of the charges on the ground that the prosecution has failed to establish the guilt of the accused beyond reasonable doubt and he has not been exonerated honourably from the charges. 'On the other hand, Shri N. Naha Roy, learned counsel appearing on behalf of the respondent argued that the Tribunal has already considered the objection put forth‘by the petitioners in para-6 oflthe impugned judgment and held that the respondent's statutory appeal remains inconclusive. The petitioners have admitted in para—2 of their reply before the Tribunal that the charges for which the respondent herein was prosecuted were identical and criminal trial prolonged for about 17 years and as many as 13 witnesses including the I witnesses of departmental enquiry except Shri Shobit RamPaikra were examined. Non-examination of Shri Shobhit Ram Paikra was fault of the prosecution. ln the aforesaid circumstances, the Tribunal was fullyjustifled in ‘ quashing punishment of removal dated 30‘“ January 2001 and ordering reinstatement without back wages by relying upon decision of the Supreme 'C ourt in G.M. Tank’s case and no interference is called for with the aforesaid order. 7. We have heard learned counsel for the parties. We have perused the record as also the order of punishment dated 30‘“ January 2001 (Annexure—AI4) as " well as the impugned order. 8. indisputably, the order of removal from service was passed against .the respondent on 30”“ January, 2001 Avide Annexure-A/4. The Superintendent Post Office passedthe above order by observing that on perusal of the entire W. 7 i l 1/. ‘4 s @£ documents relating to the charges, statements of witnesses, enquiry report and representation of the delinquent employee, it is established that the respondent received Rs.2,200/~ towards deposits from various depositors and surcharge of Rs.24/— on various dates, but he did not take the above amount in the Government account andduring enquiry, the delinquent ‘ ' employee has admitted misappropriation and voluntarily deposited the same. Depositor Shobhit Ram Paikra has also confirmed the charges in his statement and the same is established from the documents and accordingly, imposed the above penalty. The respondent/applicant did not prefer any appeal against the order of removal dated 30th January 2001 tin 3rd October, 2007 when he submitted representation of Annexure-A/6 before the Superintendent Post Office, Raigarh and prayed for reinstatement. Thereafter he has preferred an appeal before the Post Master General on 14—1-2008 vide Annexure-A/7. The Tribunal has passed the impugned order by heavily relying upon decision of the Supreme Court in GM. Tank’s case and it has been observed at the facts of the present case are very close & virtually identical to facts of t3.M. Tank (Supra). The respondent has been dismissed in the year 1982 as a measure of punishment though by that time the trial had not yet commenced. Moreover, in the present case, statutory appeal preferred by the respondent on 14-1-2008 remained unconsidered, as no order has been rplaced on record suggesting that the said appeal was considered. it has been fmally held that technicality will not stand when the applicant has been acquitted honourably and there is no evidence found by the court of competent jurisdiction against th'e respondent. “.4 as- e e a", l ~ l t Wm. . ' 1o. The question for our consideration is — whether the Tribunal was justified in setting aside the order of punishment dated 30‘“ January 2001 by relying upon decision of the Supreme Court in G.M. Tank’s case? 11. in G.M. Tank’s case, the Anti Corruption Bureau carried out an investigation against the deiinquent officer and submitted a report on the basis of which a charge sheet was issued against him alleging that he had illegally accumulated excess income by way of gratification. On departmentai enquiry, the deiinquent ofhcer (D.O.) was found gulty of the charges and ’ i order of dismissal was passed on 21-10-1982. The D.O. challenged his dismissal by way of writ petition and the learned Single Judge dismissedthe petition by concluding that there is sufficient evidence against him. His Letters Patent Appeal was further dismissed by the Division Bench. However, allowing his Special Leave Petition, the Supreme Court observed thus:- “29. The judgments relied on by the learned counsel appearing for the respondents are distinguishable on facts and on law. In this case, the departmental proceedings and the criminal case are based on identical and similar set of facts and the charge in a Departmental case against the appellant and the charge before the Criminal Court are one and the same. It is .true that the nature of charge in the departmental proceedings and in the criminal case is grave. The ‘nature of the case launched against the appellant on the basis of evidence and material collected against him during enquiry and investigation and as reflected in the charge sheet, factors mentioned are one and the same. ln other words,. charges, evidence, witnesses and circumstances are one and the same. In the present - "‘ , i MM a”? g ‘ ... case, criminal and depanmental proceedings have already noticed or granted on the same set of facts namely, raid conducted at the appellant’s residence recovery of articles therefrom. The Investigation Officer, Mr. V.B. Raval and other departmentai witnesses were the only witnesses examined by the Enquiry omcer who by relying upon their statement came to the conclusion that the charges were established against the appellant. The same witnesses were examined in the criminal case and the criminal court on the examination came to the conclusion that the prosecution has not proved the guilt alleged against the appellant beyond any reasonable doubt and acquitted the appellant by his judicial pronouncement with the nnding that the charge has not been proved. lt is also to be noticed the judicial pronouncement was made after a regular trial and on hot contest. Under these circumstances, it would be unjust and unfair and rather oppressive to allow the findings recorded in the departmental proceedings to stand. 30. ln our opinion, such facts and evidence in the department as well as criminal proceedings were the same without there being any‘ iota of difference, the appellant should succeed. The distinction which is usually proved between the departmental and criminal proceedings on the basis of the approach and burden of proof would not be applicable in the instant case. Though finding recorded in the domestic enquiry was found to be valid by the Courts below, when there was an honourable acquittal of the employee during the pendency of the proceedings challenging the dismissal, the same requires to be taken note of and the decision in Paul Anthony’s case (supra) will apply. We, I therefore, hold that the appeal flied by the appellant deserves to be allowed.” 12. If we examine the facts of the present case in the light of the above decision, we find that in the instant case, the respondent has been removed from service after conducting departmental enquiry on the basis‘of evidence " adduced in the departmental proceedings and also on the ground that the delinquent employee has himself admitted misappropriation and deposited the amount defalcated. We have already reproduced the finding of the ' disciplinary authority in the foregoing paragraph which clearly reveals that the ' disciplinary authority has also relied upon evidence of depositor Shobhit Ram Paikra, who has confirmed the charges against the respondent whereas, the above witness was not examined during criminal trial. We also take note of the fact that the departmental proceedings were initiated against the respondent on the allegation that he did not deposit the amounts received by him from the depositors in their recurring deposit account after receiving the same from them and the same was duly established from the record. Thus, the facts of the present case are entirely different and distinguishable from whe facts in G.M. Tank’s case and the learned Tribunal was not justified in passing the impugned order by relying upon the judgment of the Supreme Court in G.M. Tank’s case. 13.lt is settled law that the scope of judicial review against the order of punishment imposed by the disciplinary authority or appellate authority is very limited and the Court should normally not interfere with the administrative decision unless it was illogical or suffers from procedural impropriety or was shocking to theAconscience of the Court, in the sense that ittWas in defiance of logic or moral standards. {See V. Ramana versus ,. .m f evasi’x ‘ i l i r" ,arww‘, g. ‘3.“ V}, ,“ «b A.P.S.R.T.C. & Ors, (2005) 7 SCC 338; Chairman & Managing Director, Uhited Commercial Bank & Ors. Versus P.C. Kakkar, (2003) 4 SCC 364}. 14.lt is also settled that the standard of proof required in departmental proceedings is not the same as required to prove a criminal charge and even if there is an acquittal in the criminal proceedings the same does not bar departmental proceedings. {See Noida Entrepreneurs Assn. Vs. Noida & Ors., (2007) 10 SCC 385; Divisional Controller, G.S.R.T.C. Vs. Kadarbhai ‘ J. Suthar, (2007) 10 SCC 561} In the instant case, the order of removal has also been passed taking into consideration the admission of charges by the respondent herein. 16. It is also settled law that once it is found that all the procedural requirements have been complied with in departmental proceedings and thereafter punishment is inflicted, th‘e Courts would ordinarily not interfere with the quantum of punishment imposed upon a delinquent employee, as has been held in the matter of Chairman & MD V.S.P. & Ors Vs. Goparaju Sri Prabhakara Hari Babu reported in (2008) 5 SCC 569. n the basis of aforesaid discussion, we are of the opinion that the order impugned cannot be sustained, the same deserves to be set aside and is accordingly set aside. t v \ x \ eW¥t J x . t 18. The petition is accordingly allowed. Sd/— ' Sig!" i Dhirertdm Mishra' RN. dwrrjmhar § Judge fudge l L Barve I w L