J. Rekha vs Senior Divisional Manager LIC of India and Others

K.L. Manjunath, J.—The legality and correctness of the order passed by the learned Single Judge in Writ Petition No. 4206/2006 dated 10.08.2011 is challenged in this appeal.

This is the second round of litigation. The facts leading to this case are hereunder:

The appellant was an employee of the LIC of India. She joined the LIC as an Assistant in May 1990. She was posted to work in the Claims Department and thereafter, she was posted in the Salary Saving Scheme Department. She was also entrusted with the work of General Accounts under Assistant Accounts Officer. While discharging her duties, three cheques were missed from the office and out of which two cheques were got encashed by one Basavaraj B Chincholi on 16.07.1992 and 22.07.1992. One cheque could not be encashed on account of the criminal complaint lodged by the LIC. The criminal case was registered in C.C. No. 5353/93 on the file of the III Addl. JMFC, Gulbarga. The appellant and her husband Shambulingappa were arrayed as accused. She was acquitted in the criminal case on 02.04.2004. The disciplinary authority proceedings was also initiated by appointing an enquiry officer. The enquiry report was submitted stating the charges leveled against her were proved. Thereafter, the disciplinary authority by issuing a second show cause notice passed an order and imposed the penalty of dismissal from service and also ordered to recover sum of Rs. 41,906/- from her by his order dated 17.10.1994. 3. Against the order of disciplinary authority, an appeal was filed by the appellate authority on 28.10.1994. The appellate authority passed an order for a de novo enquiry and again one Sri R. Manirathnam was appointed as an enquiry officer to conduct the de nova enquiry. On 15.12.1997 the second enquiry officer submitted the report holding that the charges leveled against her were proved. On 29.05.1998, a second show cause notice was issued on de nova proceedings. On 28.10.1998, the disciplinary authority after considering the reply of the appellant, accepted the report of the enquiry officer and imposed penalty of dismissal and recovery of Rs. 41,906/- from the appellant.

Aggrieved by the order of dismissal, an appeal came to be filed before the appellate authority on 02.02.1999 and the appeal came to be rejected.

Aggrieved by the same, a writ petition came to be filed in Writ Petition No. 13058/1999. The same was allowed and the matter was remitted back to the disciplinary authority for reconsideration by looking into the additional statement, if any, made by the appellant. This order was passed on 01.03.2005. While remanding the matter to the disciplinary authority, the learned Single Judge did not set-aside the findings of the enquiry officer and the matter was remanded only to consider the effect of acquittal of the appellant in criminal case and also, if any additional statement is filed. Thereafter, on 24.08.2005, the disciplinary authority confirmed the order of dismissal and recovery of Rs. 41,906/-. Aggrieved by the same, the appellant filed an appeal before the appellate authority which also came to be rejected on 06.02.2006.

Aggrieved by the order of the disciplinary authority and the order of confirmation of the disciplinary authority by the appellate authority, the appellant filed Writ Petition No. 4206/2006 on the ground that the order passed by this Court on 01.03.2005 in Writ Petition No. 13058/1999 was not strictly followed by the disciplinary authority. Learned Single Judge by his order dated 10.08.2011 dismissed the writ petition confirming the order of penalty and recovery. Therefore, the present appeal is filed.

Learned counsel for the appellant Mr. Nagaprasanna and the learned counsel for the respondent Mr. Lingaraju does not dispute the above facts. The only contention of the appellant''s counsel before us is that the disciplinary authority did not consider the direction issued by this Court on 01.03.2005 in Writ Petition No. 13058/1999 and the other contention is that the learned Single Judge did not consider that the disciplinary authority has committed an error in not following the direction issued in the above said writ petition.

Therefore, what is to be considered by us in this appeal is, "Whether the disciplinary authority has followed the directions of this Court in Writ Petition No. 13058/1999 dated 01.03.2005 and whether the order of the learned Single Judge requires to be interfered with"?

In order to appreciate the contentions of the parties, we have to consider the direction issued by the learned Single Judge on 01.03.2005 in Writ. Petition No. 13058/1999. The directions issued in the aforesaid writ petition reads as hereunder:

"In the light of the Judgment of the Supreme Court, I deem it proper to set aside the order of dismissal and remit the matter for redecision to reconsider the entire matter by the disciplinary authority taking into consideration the similarities as referred to by me and also taking into consideration the acquittal order in accordance with law. Once, the dismissal order is set aside, then the subsequent appeal proceedings have also rendered unnecessary in the given circumstances. I do not want to express any opinion on the merits of the matter though argued by the parties. In the light of the remand for reconsideration with regard to punishment in terms of my earlier rulings, liberty is also reserved to the petitioner to provide any additional material before the authorities on or before 31.03.2005 on receipt of the same, the disciplinary authority in to reconsider the entire matter in accordance with law and in terms of the findings of this Court in this petition and pass suitable order in accordance with law within 3 months thereon. In case the petitioner wants a personal hearing, the same may be granted by the Management. Writ petition is allowed in the manner with the above direction. Parties to bear their cost. 10. Now in this background we have to consider, "Whether the disciplinary authority while imposing penalty has followed the directions of this Court?"

It is not in dispute that the findings of the enquiry authority is not set-aside. Only the matter was remitted to the disciplinary authority to consider the manner in which the penalty has to be imposed. While doing so, the disciplinary authority was directed to keep in mind the ruling of the Hon''ble Supreme Court in Chairman and Managing Director, United Commercial Bank and Others Vs. P.C. Kakkar, . Annexure-P is the order of the disciplinary authority which runs in all 4 pages. The disciplinary authority has formulated 5 points before imposing the penalty. Point Nos. 4 and 5 reads as hereunder:

Point No. 4: The Hon''ble High Court of. Karnataka, Bangalore in W.P. No. 13058/1999 vide its Order dated 1.03.2005 had stated that an opportunity may be given to Smt. Rekha to provide any additional material before the Disciplinary Authority on or before 31.3.2005 and accordingly Smt. Rekha had submitted her representation dated 23.3.2005. On going through her representation it is observed that she has reiterated the facts stated in her reply dated 6.7.1998 to the show cause notice. She had not brought out any additional material which require consideration. Further, she had not requested for any personal hearing. No new points were brought out in her representation dated 23.3.2005. However, in view of the observations of the Hon''ble Court that the acquittal of Smt. Rekha from criminal proceedings is to be taken into account, matter was taken up through W.A. No. 2902/05, Hence the present order.

Point No. 5: On going through the judgment dated 2.4.2004 in the Criminal Case No. 5353/1993 on the file of the Hon''ble III Additional JMFC Court, Gulbarga, I find that it would not have any bearing as far as the relationship of employee and employer is concerned. It is an established law that the criminal proceedings and disciplinary proceedings are two different and independent proceedings. Though Smt. Rekha was acquitted in the criminal case, the misconduct committed by her cannot evaporate and if proved in the departmental enquiry, punishment can be awarded. Further, she was acquitted by the Criminal Court under benefit of doubt and it was not a honorable acquittal. The departmental enquiry is based on the principle of "Preponderance of Probability" and a "strict proof" as per Evidence Act is not necessary. As such, the judgment of the criminal court has no bearing on the departmental enquiry and cannot be attached importance in so far as this case is concerned. However, conclusions in the enquiry proceedings are drawn taking into account, her involvement, report of the hand-writing expert, confessions made by the charge-sheeted employee and her husband before the police, other relevant documents like cheques etc., negligence in official duties like holding the cheque books in safe custody, misappropriation of public funds for which LIC of India and its employees act as trustees.

In the ultimate paragraph, the disciplinary authority has stated as hereunder:

NOW, THEREFORE, looking to the facts and circumstances of the case and after considering the representation, all the related documents in the enquiry proceedings, Orders of Hon''ble High Court of Karnataka in W.P. No. 13058/1999 and in W.A. No. 2902/2005, the Judgment dated 02.04.2004 of the Hon''ble III Additional JFMC Gulbarga in C.C. No. 5353/1993 and all the relevant points/issues, I hold that Smt. J. Rekha is guilty of all charges enumerated in the Charge Sheet dated 26.02.1993 and by virtue of the powers vested in me under Regulation 39(1) of the LIC of India (Staff) Regulations, 1960, I have come to the conclusion that the penalty of dismissal from service and recovery of pecuniary loss caused to the corporation is the appropriate punishment to be imposed on Smt. Rekha and therefore, I do hereby impose on Smt. J. Rekha the penalty of "dismissal" from service as proposed in the Show Clause Notice dated 29.5.1998 in accordance with Regulation 39(1)(g) of LIC of India (Staff) Regulations, 1960 with effect from 28.10.1998 and also recovery of Rs. 41,906/- under Regulation 39(1)(c) of LIC of India (Staff) Regulations, 1960. 13. Now, by considering the entire order passed by the disciplinary authority, we are of the view that the disciplinary authority has also held that the judgment of acquittal dated 02.04.2004 passed in C.C. No. 5353/1993 on the file of the III Addl. JMFC, Gulbarga has no bearing so far as the punishment to be imposed. The disciplinary authority has also held that the findings in criminal proceedings and disciplinary proceedings are entirely two different and independent proceedings and further held that the appellant was acquitted in the criminal case by giving benefit of doubt and it is not an honorable acquittal. It is further stated that the findings of the enquiry is based on the preponderance of probabilities and that strict proof of Evidence Act is not necessary. In the circumstances, he came to the conclusion the judgment in criminal case has no bearing on the departmental enquiry and cannot be attached importance insofar as the case is concerned. Therefore, appreciating the enquiry report, the disciplinary authority has imposed the penalty of dismissal. In the circumstances, we are of the view that the disciplinary authority has strictly followed the directions issued by this Court in Writ Petition No. 13058/1999 dated 01.03.2005 and based on the same, if the learned Single Judge has dismissed the writ petition, we cannot rightly interfere with the same in an intra court appeal.

In the circumstances, we do not see any merit in this appeal. Appeal is dismissed.