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Judgment
[1] This appeal is filed by the Life Insurance Corporation(LIC) of India Ltd. to challenge a judgment of the learned Single Judge dated 31st October 2017 passed in WP(C) No.103/2012.
[2] Brief facts are as under :
The respondent herein original petitioner was working as a member of sub-staff with LIC and was posted at the relevant time at Agartala, Branch Office-II under Silchar Divisional Office(DO). A charge sheet was issued against the petitioner on 12th July, 2004 alleging that under office order dated 27th June 2021, he was entrusted with the task of carrying the total amount of daily collection through cash as well as cheque made under six different cash books of the Agartala Branch Office - II, Silchar DO, from the LIC's Branch Office to the Indian Bank, Agartala Branch and to deposit the same with the said Bank daily. Additionally, he was also entrusted some allied works of the Accounts Department of the said Branch. As per his official duty, he used to receive daily the previous day's total collection as per the Cash Book and the Daily Cash Balance (DCB) Book of Agartala Branch under Silchar DO along with pay-in-slips written by some other employees of the Branch for depositing exactly the same amount and the pay-in-slips with the Indian Bank, Agartala Branch, immediately. As a token of acknowledgment of receipt of the cash amounts, cheques and pay-in-slips, he used to put his signature daily in the space provided in the DCB Book.
It was alleged that the delinquent had deposited a cheque with the Indian Bank, Agartala Branch, as per the pay-in-slips prepared by some other employees of LIC with an intention of defrauding the Corporation and he had deposited lesser amounts of cash as shown in the charge sheet. According to the LIC, in the process, the petitioner had misappropriated a total sum of Rs.33,00,000/- in following manner :
"Sl
Date
Amount taken for
Actual amount
Amount
No.
Lodgment
deposited
Misappropriated
1.
13-3-02
Rs.15,70,233.00
Rs.10,70,233.00
Rs.5,00,000.00
2.
14-3-02
Rs.10,31,840.20
Rs.05,31,840.20
Rs.5,00,000.00
3.
15-3-02
Rs.08,13,271.10
Rs.04,13,271.10
Rs.4,00,000.00
4.
16-3-02
Rs.08,83,694.90
Rs.05,83,694.90
Rs.3,00,000.00
5.
18-3-02
Rs.04,63,546.70
Rs.03,63,546.70
Rs.1,00,000.00
6.
19-3-02
Rs.10,88,461.90
Rs.06,88,461.90
Rs.4,00,000.00
7.
20-3-02
Rs.07,17,558.70
Rs.04,17,558.70
Rs.3,00,000.00
8.
21-3-02
Rs.07,16,269.00
Rs.06,16,269.00
Rs.1,00,000.00
9.
22-3-02
Rs.06,07,049.00
Rs.04,07,049.00
Rs.2,00,000.00
10.
23-3-02
Rs.07,79,729.50
Rs.06,79,729.50
Rs.1,00,000.00
11.
29-3-02
Rs.12,71,302.00
Rs.08,71,302.00
Rs.4,00,000.00
Total Amount
Rs.99,42,956.00
Rs.66,42,956.00
Rs.33,00,000.00"
It was further alleged that to cover up this fraud, the petitioner had destroyed the copies of DCB Book and tampered with pay-in-slips for cash. He thereupon proceeded on casual leave on 1st April, 2002 but thereafter remained absent from office unauthorisedly till he was arrested by the police on 2nd February, 2003 for the charge of misappropriation of the fund of the Corporation. The petitioner had thus committed misconduct as per Life Insurance Corporation of India (Staff) Regulations, 1960.
[3] The petitioner replied to the charge sheet and denied the charges. He contended that on the same set of allegations a criminal case was also instituted against him and the department should suspend the inquiry till the criminal case is over.
[4] The inquiry officer appointed by the disciplinary authority conducted the inquiry upon completion of which he submitted a report dated 22nd January, 2007. He came to the conclusion that the charge of the misappropriation of the fund of the Corporation was not proved. He, however, held that the charge of unauthorized absence was proved. In order to come to the conclusion that the charge of misappropriation was not proved he had made following observations :
"Now after due application of mind I, as Enquiry Officer, come out with the following conclusion and observation etc.
It has been argued that the CSE Sri Gangesh Chakraborty used to receive the Cash & Cheques for further lodgement with the Indian Bank, Agartala and on the relevant dates he had made less deposits of Cash, but in the absence of the copies of the DCBs, the amount received by the CSE could not be ascertained. Further, the copies of the set of collection books (as referred to by the Presenting Officer) submitted by the Presenting Officer as one of the exhibits (Exhibit-2) do not contain the cash collection figures of all the relevant dates, and thus the cash collection figures for some dates could not be verified by referring to the records relating to cash collections. Here it can be relevantly made mention of that out of 9(nine) sheets of exhibit-2, only one sheet i.e. the 1st one seems to be a copy of LIC's own records but again some of the sheets do contain the figures of actual cash collection(as mentioned) of some of the relevant dates while containing the mentioned Bank Deposit (Cash lodgement) figures of all the relevant dates. In the circumstances, no clear-cut inference can be drawn that the CSE Sri G Chakraboty had, for his personal gains, deposited less amounts of cash in the Bank. However, circumstantial evidences give pointed indications that the CSE Sri G Chakraborty had for his personal gains, misappropriated the moneys but in the absence of cash collection figures of all the relevant dates to be verified from convincing records, it can be said that the charge with regard to misappropriation of LIC's money could not be conclusively proved. I, therefore, say that the charge has not been proved."
[5] According to the inquiry officer thus, there was circumstantial evidence pointing to the involvement of the petitioner of misappropriation of the funds of the Corporation for his personal gains. He, however, held the charge not proved on the ground that in absence of cash collection figures of all relevant dates which can be verified from the convincing records, the charge of misappropriation of the funds of the LIC cannot be conclusively proved.
[6] The disciplinary authority did not accept the findings of the inquiry officer and, therefore, issued a show cause notice recording his disagreement with the findings of the inquiry officer and citing tentative reasons for the same. He served a copy of such show cause notice dated 10th July, 2007 to the petitioner calling upon him to respond. In such notice, the disciplinary authority had cited the materials collected by the police in course of the investigation. He recorded that the delinquent was absconding from duty. The case was after initial investigation handed over to CID Branch. A publication of missing person's information was issued in the daily newspaper to search out the delinquent. He was finally arrested on 2nd February, 2003 from a hotel in Agartala where he stayed in a fake name. He was wearing a wig in order to conceal his identity and to evade arrest. The disciplinary authority recorded that in the final report, the police had pointed out that the delinquent had deposited a total amount of Rs.21,00,000/- in his name and in the name of one Arindam Goswami in the Post Office in Kolkata in Monthly Income Scheme(MIS). The police had also seized the original application forms for opening the accounts in the post offices containing the signatures and handwriting of the depositors namely, the delinquent and Arindam Goswami as well as the pay-in-slips in respect of the deposits of lesser amount with the Bank of India. The signatures and handwriting of the delinquent were also sent for comparison and expert's opinion. The disciplinary authority also recorded that the date wise cash collection of the concerned branch for the period between 13th March, 2002 to 29th March, 2002 which were received by the delinquent for depositing in the Bank and the actual amount deposited by him with the Bank allowing him to misappropriate the difference were also mentioned in the final police report. The disciplinary authority referred to the stand taken by the delinquent during the course of inquiry suggesting that he was not prepared to participate in the inquiry on the ground that a criminal case was pending against him. The disciplinary authority also referred to the statements of the departmental witnesses recorded during the course of inquiry such as one Sri M Koloi, Administrative Officer of the Agartala Branch Office-II, one Smt. Alo Rani Das, Assistant(Finance & Accounts) of Agartala Branch Office-II who had stated that the delinquent was in the Finance and Accounts Department who used to receive cash and cheques and then deposit the same in the Bank.
[7] The delinquent replied to the said show cause notice under a detailed communication dated 26th August, 2007 taking various pleas of principles of natural justice not being followed during the course of the inquiry and of his innocence in absence of any evidence on record.
[8] The disciplinary authority, however, did not accept such defences and passed an order dated 28th August, 2007 imposing punishment of dismissal from service and ordering recovery of loss of Rs.33,00,000/-from the delinquent.
[9] The petitioner thereupon filed departmental appeal before the appellate authority. Appellate authority dismissed the appeal by an order dated 25th August, 2008. In such order, he dealt with every ground raised by the petitioner in appeal. He thereupon concluded as under :
"With my aforesaid observations and conclusion, I observe that the Appellant has not brought out any cogent points warranting any modification in the penalties of dismissal from service and recovery of Rs.33,00,000.00(Rupees thirty three lacs) only as imposed by the Disciplinary Authority, which is in my view commensurate with the gravity of misconduct of which he is found guilty.
The appeal dated 27.11.2007 preferred by Shri Gangesh Chakrborty therefore be and is hereby rejected."
[10] The petitioner thereupon filed the writ petition [WP(C) No.103/2012] before this Court. The learned Single Judge by the impugned judgment allowed the petition mainly on the grounds that the contents of the police report could not have been relied upon without examining the investigating officer. It was observed that the record produced before the Court did not indicate that a copy of the police report was part of the inquiry proceedings. The learned Judge came to the conclusion that the witnesses examined by the department did not have any personal knowledge about the misappropriation. The learned Judge, therefore, found that the charge of misappropriation of the funds of the Corporation was wrongly held to have been proved, however, with respect to unauthorized absence no interference was found necessary. The punishment of dismissal with consequential directions for recovery of the loss caused to the Corporation was set aside. The petitioner would be re-instated in service. This judgment, the Corporation has challenged in this appeal.
[11] Having heard learned counsel for the parties and having perused documents on record, we find that the judgment of the learned Single Judge is not sustainable. During the course of inquiry, the department had established that the petitioner was posted in the Finance and Accounts Department and was entrusted with the task of receiving amounts through cheques as well as cash and was entrusted with the task of filling up pay-in-slips and to deposit entire amount in the Bank of India where the Corporation had an account. The shortfall in the deposits with the Bank as compared to the amounts received by the Corporation was also established. Even the inquiry officer, as we have noted, came to the conclusion that the circumstantial evidence points to the guilt of the delinquent. However, he exonerated the delinquent only on the ground that in absence of cash collection figures of all relevant dates and verification of the same from record the charge of misappropriation of the LIC funds cannot be said to have been proved. This was a strange and a defective logic. In the departmental inquiry, unlike in criminal cases, the proof beyond reasonable doubt is never insisted, more importantly, as long as there was circumstantial evidence to hold the charge against the delinquent proved, the inquiry officer could not have exonerated him on the flimsy ground that each and every detail of money receipt was not brought on record by the department. We may also recall that the allegation against the petitioner was that in order to cover up this large scale fraud he had also manipulated the records and tampered with the pay-in-slip entries.
[12] It was in this background that the disciplinary authority issued a disagreement notice recording his tentative reasons for not accepting the findings of the inquiry officer. As noted, he had placed heavy reliance on the final report submitted by the police upon completion of the investigation. He had referred to the petitioner going underground for months on end after the fraud was detected, that a public notice for finding out the petitioner was issued by the CID Branch, that the petitioner was finally arrested several months later when he was in disguise and staying in a city hotel in a fictitious name. He also relied on the police report which suggested that the petitioner and another person had deposited a sum of Rs.22,00,000/- in Post Office, branch in Kolkata, in Monthly Income Scheme(MIS). The account opening form contained the signature and handwritings of the petitioner. The disciplinary authority had also relied on the evidence of the witnesses examined during the course of the inquiry who of course may not have personal knowledge about the misappropriation committed by the petitioner, nevertheless had provided relevant information about his posting, the duties assigned to him and the fact that a total of Rs.33,00,000/- was deposited short in the Bank account of the Corporation.
[13] Thus, the entire issue was based on consideration of facts and assessment of evidence on record. The disciplinary authority and the appellate authority had independently applied their minds and come to factual findings which could not have been lightly disturbed in a writ petition. Through series of judgments, the Supreme Court has held that the findings arrived at by the disciplinary authority in the course of validly constituted departmental inquiry cannot be interfered in a writ jurisdiction unless these findings are shown to be perverse in the sense that there is no evidence supporting such findings It is equally well-settled that in the curse of the departmental proceedings strict laws of Evidence Act would not be applicable. The requirement of examining the investigating officer before the police report can be referred to and relied upon as imposed by the learned Single Judge, therefore, was not correct. Further, the inquiry officer in his report has referred to the final police report as well as CID reports. The observation of the learned Single Judge that these documents did not form part of the inquiry proceedings is also not correct.
[14] The petitioner was facing serious charges of defalcation of public funds to the tune of Rs.33,00,000/-. The evidence against him suggested that he was entrusted with the duty of receiving cheque and cash amounts and depositing the same in the account of the Corporation in a nearby Bank. The evidence also suggested that in depositing such collection for 11 days there was a shortfall of Rs.33,00,000/-. The petitioner did not offer any explanation for such shortfall. He could not have taken the stand of total silence as in case of criminal proceedings requiring the department to prove all charges against him on the enveil of proof beyond reasonable doubt. The department established the charge through preponderance of probabilities through direct and circumstantial evidence.
In the result, impugned judgment of the learned Single Judge is set aside. Appeal is allowed and disposed of. Pending application(s), if any, also stands disposed of.