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Judgment
ORDER
Per: Mr. Shri Krishna, Member (A)
Brief facts, as stated by the applicant in the OA, are that she was working as Postal Assistant (Mulund) at token issue counter during the period from 05.06.2004 to 10.04.2006. She was involved in petty financial irregularities amounting to Rs.48,907/- in all, in respect of 25 MIS accounts of different persons. She admitted her fault and voluntarily credited the amount of Rs.50,000/- into Government treasury at Bhandup East Post Office. She was placed under suspension vide order dated 10.04.2006 (Annexure A-7) issued by the respondent No.3. The suspension was revoked vide order dated 15.05.2006 (Annexure A-8). She was directed to be relieved from Mulund East PO Mumbai and was posted as PA Chembur HO. The respondent No.3 initiated disciplinary proceedings under Rule 14 of the CCS(CCA) Rules, 1965 vide order dated 14.02.2007. The Inquiry Officer was appointed. The applicant admitted the charge before the Inquiry Officer and requested to take a lenient view keeping in view her service records, remaining service length and the circumstances under which the misappropriation was made. On being held guilty of the offence, she made similar submissions before the Disciplinary Authority.
The Disciplinary Authority by taking a lenient view was pleased to impose major penalty of reduction to lower time scale of pay for 8 years without increments vide order dated 28.06.2007 (Annexure A-9). Thereafter, the department filed an FIR in the Court which was registered as a criminal case No.96/2006 under Sections 409, 420, 465, 476, 468, 471 and 34 of IPC for the same offence based on the same set of witnesses and evidences and clear admission of the offence by the applicant. The Ld. Metropolitan Magistrate, 27th Court Mulund-Mumbai vide judgment and order dated 15.11.2018 convicted the applicant for the offences committed under the aforesaid sections and sentenced her to undergo imprisonment for 3 months and fine of Rs.3000/- for each offence (Annexure A-10). The applicant filed an appeal against the above order of the conviction before the Court of Sessions for Greater Mumbai vide Appeal No.830/2018. The Ld. Sessions Court suspended the imprisonment of the applicant during the period of the appeal subject to the condition that the appellant shall furnish the PR and SB of Rs.15,000/- (Annexure A-11). The respondent No.3 vide letter dated 18.12.2018 directed to make payment and submit true copy of receipt (Annexure A-12). The applicant, accordingly, deposited the amount and informed the respondent No.3 vide letter dated 20.12.2018 (Annexure A-13). Thereafter, the respondent No.3 issued a show cause notice dated 18.12.2018 directing the applicant to explain as to why she failed to inform the respondent No.3 about the fact of her conviction (Annexure A-14).
It has been averred that the mistake was Bonafide. The department filed the FIR against the applicant and its representatives and counsel regularly attended the court proceedings and were in know of the day to day developments. The respondent No.3 received the court order and addressed a letter dated 18.12.2018 to the applicant to which she replied. The applicant was under the impression that the department, being a party to the case, no separate information was required to be submitted. However, on being pointed out, she tendered unconditional apology vide letter dated 20.12.2018 and requested for condonation of delay in informing the department which was neither deliberate nor willful or with any ulterior motive (Annexure A-15). Another intimation alongwith copy of Court’s order dated 17.12.2018 was again submitted on 28.12.2018 (Annexure A-16).
It has been averred that the respondent No.3 vide impugned memo dated 03.01.2019 issued charge memo alleging that by failing to inform the fact of her conviction by the Court to her higher authorities as soon as possible, she had suppressed the material information thereby violating the provisions of G.I.M.H.A. O.M. No.25/70/49-Ests. Dated 20.12.1949 given under GOI’s Decision.
Thereafter, the respondent No.3 passed impugned ‘Censure’ order dated 31.01.2019 and simultaneously issued impugned show cause notice dated 31.01.2019. It is the case of the applicant that all these actions of the respondent No.3 are illegal arbitrary and not maintainable in the eyes of law as one cannot be punished time and again for one and the same offence.
It has been averred that during her 26 years of long service but for the present case, there was no blot on her and she was awarded the “Best Workers Award” in 2003 and that post this incident period from 2007 onwards, she has not given any chance of complaint to any of the authorities and that she was performing the duties of Supervisor for the last two years to the entire satisfaction of the authorities. It has been averred that after imposing major penalty of reduction to lower time scale of pay, the applicant cannot be punished endlessly for the same charges.
It has been submitted that the charge memo alleging that by failing to inform after conviction by Court to the higher authorities, the applicant was dismissed from service vide order dated 20.02.2019. The applicant filed an appeal before the Respondent No.2 on 25.03.2019 which was rejected by the Appellate Authority vide order dated 19.09.2019.
Aggrieved by the above orders of the respondents, the applicant has filed this OA to claim for the following reliefs:
“8(a) This Hon’ble Tribunal may graciously be pleased to call for the records of the case from the respondents and after examining the same quash and set aside the impugned orders dated 19.09.2019, 20.02.2019, 31.01.2019, 31.01.2019 and 03.01.2019 (A-1 to A-5 respectively) with all consequential benefits.
(b)This Hon’ble Tribunal may further be pleased to direct the respondents to reinstate the applicant treating her services as without a break and with all consequential benefits.
(c)This Hon’ble Tribunal may further be pleased to direct the respondents to pay the arrears of pay from the date of dismissal alongwith interest @18%.
(d)Cost of the application may please be provided for.
(e)Any other and further order as this Hon’ble Tribunal deems fit in the nature and circumstances of the case be passed.
After issuance of notice, the respondents have filed their reply and contested the OA.
It has been submitted that the applicant while working as Postal Assistant Mulund East PO for the period 05.06.2004 to 10.04.2006 together with Shri Shekhar G. Karbhari then SBPA Mulund East PO had misappropriated the Government money to the tune of Rs.1,35,998/- by preparing bogus SB 7 vouchers of MIS Accounts and withdrew the interest from the random MIS accounts where interest were already taken by the depositors. They have defrauded the money from such MIS accounts where depositors had received the MIS interest monthly through ECS. Total amount misappropriated was Rs.1,35,998/- & after calculation of penal interest, total amount of loss was Rs.1,45,952/-. Later Rs.2,50,000/-was recovered from the main offenders i.e. Rs.2,00,000/- from Shri S.G. Karbhari and Rs.50,000/- from applicant in lump sum. Since the applicant PA Mulund East PO was also involved in this misappropriation along with the main offender Shri S.G. Karbhari, Rule 14 charge sheet was issued to applicant vide office memo No. SSPNE/ Disc/134/MSN/2006 dated 14.2.2007. In the inquiry, under disciplinary proceedings, by the Inquiry Officer, the applicant admitted her charges in toto and also credited the amount of loss to the Government voluntarily to the tune of Rs. 50000/-.
It has been submitted that the disciplinary proceedings under Rule 14 against the said applicant was finalized with the issue of punishment order memo no. SSPNE/ Disc-134/MSN/2006 dated 28.6.2007 as "Pay reduced to minimum stage for a period of 8 years with immediate effect. It was further directed that applicant will not earn the increments of pay during the period of reduction and on expiry of punishment, it will not have the effect of postponing the future increment of pay. The applicant will not be posted to any branch where the financial matter is involved during this period.”
It has been further submitted that since the amount of fraud was more than Rs.5000/-, FIR was lodged and the Court Case No.514/PW/2007 was in progress till 2018. The final hearing of the said court case was held on 15.11.2018 and the judgment and order declared on 15.11.2018. As per the judgment/order, both the accused were convicted on a criminal charge under sections 409, 420, 465, 467, 468 and 471 read with section 34 of IPC under section 248(2) of the Code of Criminal Procedure and has been awarded imprisonment for 3 months and to pay fine of Rs.3000/-under each section. The applicant had paid fine imposed by Court and also applied for bail to appeal against punishment ordered by Court which was approved by Court. Both officials filed appeal against punishment imposed by the Court in 19th Mumbai Session Court and the order of suspension of sentence was passed by appellate court.
It has been further submitted that the copy of the judgment/order dated 15.11.2018 was received by the Respondent No.3 only on 17.12.2018 while the appeal was already filed by the applicant on 13.12.2018. Hence charge sheet under Rule 16 of CCS (CCA) Rules 1965 was issued to applicant vide memo no. SSPNE/Disc 14/MSN/PA/Matunga PO/2018-19 dated 03.01.2019 for suppression of material information i.e. of the fact of Conviction by the Court. The matter was then referred to Ministry of Law seeking advice on whether action against the two officials cited above despite the suspension of execution of the sentence of imprisonment can be taken. In response, MOL has expressed its opinion that they are of the view that the Disciplinary Authority may proceed against the accused after conviction of the accused persons and even in the case of suspension of the sentence, in the light of Rule 19 of CCS (CCA) Rules, 1965 and Govt of India's decision. Rule 16 charge sheet issued vide memo dated 03.01.2019 was then finalized by issue of punishment order of "Censure" vide memo no. SSPNE/Disc 14/MSN/PA/Matunga PO/2018-19 dated 31.1.2019.
It has been submitted that thereafter as per the opinion received from MOL, it was decided to proceed against both the officials under Rule 19(i) of CCS (CCA) Rules, 1965. Rule 19 reads as under:
“19. SPECIAL PROCEDURE IN CERTAIN CASES:
Notwithstanding anything contained in rule 14 to rule 18-
(i)where any penalty is imposed on a Government servant on the ground of conduct which has led to his conviction on a criminal charge,
(ii)….
(iii)…..
The Disciplinary Authority may consider the circumstances of the case and make such orders thereon as it deems fit:
Provided that the Government servant may be given an opportunity of making representation on the penalty proposed to be imposed before any order is made in a case under clause (i):……” Accordingly, the show cause notice was issued to both the officials i.e. the applicant and Shri S.G. Karbhari for proposed penalty to be imposed before any order is made in a case under clause (i) against applicant vide this office memo dated 31.1.2019. After considering their representation, penalty of dismissal from Government service with immediate effect has been issued to both the officials vide this office memo No. SSPNE/Mulund East Fraud case/MSN/PA/18-19 dated 20.02.2019 and memo have been delivered to the officials under receipt on 20.2.2019 A/N.
Being aggrieved by the said order of Dismissal, the applicant preferred an appeal to the Respondent No.2 i.e. Director Postal Services, Mumbai Region, Mumbai 400 001 against the same, which has been rejected by the Appellate authority vide Appellate order dated 19.9.2019.
It has been submitted that the applicant has been subjected to repeated Disciplinary actions/prosecutions/ punishments for one and the same offence is not correct. The departmental action initiated vide Rule 14 of CCS (CCA) Rules is for the violation of the Departmental Rules and failure to follow the proper Departmental working procedures. However Disciplinary action cited in serial 2 i.e. Dismissal from Service is for the Conviction of the official in the Court and that it is considered that the conduct of the applicant is such as to render her further retention in the public service undesirable. Hence, there is no double jeopardy in this case. Though the punishment under Rule 14 of CCS (CCA) Rules 1965 vide order dated 28.06.2007 was imposed on the applicant, as per the Departmental Rules since the amount of fraud was more than Rs. 5000/- in this case, FIR was lodged against the applicant and the Court Case no. 514/PW/2007 was in progress till 2018. The punishment order of Censure was passed for the charge sheet under Rule 16 issued to the applicant for suppression of the material information for not intimating the office about the Conviction orders. The charges in both the charge sheet issued to the applicant were completely different and, hence, there is no double jeopardy and in order.
It has been submitted that the action taken vide order dated 28.06.2007 was for the violation of the departmental Rules i.e violating the provisions of Rule 33(5) (i) of POSB Volume I read with Rule 159(2) procedure to be followed by Sub Post Office and with Rule 103 of FHB Volume 1, while the Dismissal orders were imposed as the conduct of the official was not considered fit for her to be retained in the public service after her being Convicted by the Court. Hence the orders passed in both the cases are in order. As per article 20 of Constitution of India, no person shall be punished for the same offence more than once. But here as explained above the applicant was not punished for the same offence twice. The order dated 28.06.2007 was for the violation of the departmental Rules while the order dated 20.02.2019 was for the reason that due to Conviction of the applicant in the Court of Law, her conduct was not considered fit for her to be retained in service. Hence, there is no violation of any article of the Constitution of India and the orders are not illegal as alleged.
The respondents have placed reliance on the judgment of Hon’ble Supreme Court in the case of Life Insurance Corporation of India Vs. Mukesh Poonamchand Shah in Civil Appeal No.1804/2020 arising out of SLP(C) No.5142 of 2020 decided on 25.02.2020.
The applicant has not filed any rejoinder to the reply submitted by the respondents. Therefore, the matter was heard finally.
Learned counsel for the applicant Ms. Priyanka Mehndiratta has argued the case of the applicant on the basis of submissions made in the OA. She submitted that the applicant has been punished more than once for the same offence which is the violation of the Article 20 of the Constitution of India. She submitted that the applicant was already imposed major penalty vide order dated 28.06.2007 for reduction to lower time scale of pay of 8 years without increments. Thereafter, she was again imposed the penalty of ‘Censure’ vide order dated 31.01.2019 and again major penalty of dismissal from service vide order dated 20.02.2019. Thus, three penalties have been awarded for the same offence. She submitted that the applicant filed appeal against the dismissal order on 02.01.2023. In the meantime, she was acquitted by the Session Court vide order dated 29.09.2022. She submitted that the appeal of the applicant has not been decided till date and, therefore, the Appellate Authority should be directed to decide her appeal in a time bound manner so that the applicant can get justice.
Learned counsel for the respondents Shri Rishi Ashok on the other hand submitted that both the penalties were under the different provisions of CCS(CCA) Rules, 1965 for the violation of CCS(Conduct) Rules 1964. Therefore, it is not correct to say that the applicant has been punished twice for the same offence. He submitted that while the first penalty was for the financial fraud committed by the applicant by misappropriation of the Government money from public exchequer, the dismissal was for her failure to intimate her conviction to the department. Thus, both the penalties were for the different violations and, therefore, the OA should be dismissed.
We have considered the argument of learned counsel for both the sides.
It is not in dispute that the conviction of the applicant has been set aside by the Court of Sessions Judge for Greater Bombay vide judgment dated 29.09.2022 in Criminal Appeal No.830/2018. It will be helpful to extract herein para Nos.18 to 20 of the order of the Session Judge herein as under:
“18.Though it appears that the funds were misappropriated, from the evidence on record and the documents filed on record, one cannot come to the conclusion that accused have committed said offence. The evidence on record is not sufficient to come to the conclusion about the guilt of the accused persons. There are no allegations that both the accused have committed this offence in furtherance of their common intention, the charge is also not framed for the offence punishable under Section 34 of IPC. It appears that the trial Court has convicted both the accused for the offences punishable under Sections 409, 420, 465, 467, 468 and 471 r/w Sec.34 of IPC, which is not permissible in law.
19.Moreover, the sanction is not obtained before registration of FIR. Both the accused persons are the government servants. The specific offences are mentioned in Section 197 of Cr. P.C. For said offences only sanction is not required. In abovesaid offences the sanction is required. As the sanction is not obtained by the police before registration of crime, the trial is vitiated. Offences are not proved against accused from the oral and documentary evidence and I do not agree with observations made by trial court. Hence, I answer Point No.1 to 8 accordingly.
20.In the light of above discussion, I am of the opinion that entire evidence placed on behalf of prosecution if accepted to be true, same is not emerging the fact that there is satisfactory evidence to prove that active role coupled with criminal intent to demonstrate that to constitute ingredients of offences leveled against him. So, both the accused are entitled for acquittal. In the result, conviction and sentence recorded by Ld. Trial Court cannot be upheld. Accordingly, I proceed to pass following order: ORDER
1.Criminal Appeal No.808/2018 & Criminal Appeal No.830/2018 are hereby allowed.
2.The order passed by the Metropolitan Magistrate 27th Central Administrative TribunalCourt, Mulund, Mumbai on 15/11/2018 in C.C. No.514/PW/2007 is hereby set aside.
3.Appellant/Original Accused No.1 Shekhar Goving Karbhari in Criminal Appeal No.808 of 2018 and Appellant/original Accused No.2 Meena Sanjay Nagpure in Criminal Appeal No.830 of 2018 are hereby acquitted for all the offences levelled against them.
4.Both the appeals stand disposed of accordingly.
5.R & P be sent back to the Trial Court.
6.Copy of this judgement be kept in Criminal Appeal No.830/2018”
Pursuant to the order of the Court of Sessions Judge for Greater Bombay, the applicant has filed representation dated 02.01.2023 before the respondent No.3 for reinstatement in service under Rule 19(5) of the CCS(CCA) Rules, 1965 which has not been decided by the respondent No.3 so far.
In view of the above facts, we deem it appropriate to direct the respondent No.3 to consider and decide the representation of the applicant by passing a reasoned and speaking order by taking into consideration the order of acquittal within a period of three months from the date of receipt of a certified copy of this order and communicate the order so passed by the respondents to the applicant within two weeks thereafter.
The Original Application is, accordingly, Central Administrative Tribunal disposed of in terms of above order/direction. Pending MAs, if any, stand closed. No costs.