Satya Sarkar vs Union Of India And Ors

[1] This writ petition is filed to challenge an order dated 30th November, 2007 by which the petitioner was removed from service by the employer i.e. the Director, Micro Small and Medium Enterprises, respondent No.3 herein.

[2] Brief facts are as under:

The petitioner was appointed as a Peon in the office of the respondent No.3 in the year 1984. W.e.f. 01.08.2000 he was placed under suspension pursuant to his arrest by the police in a case of embezzlement of public funds. The department independently issued the charge sheet in relation to the same incident. Broadly, the charges against the petitioner were that while functioning as a Peon during the period of July 2000 he was involved in embezzlement of Government money of `6,87,072/-by fabricating a cheque drawn on the State Bank of India and further that during investigation a sum of `5,00,000/- in cash and a cheque book were found from his custody. Upon completion of the inquiry the disciplinary authority passed the said order dated 30th November, 2007 imposing punishment of removal from service. The inquiry officer had held the charges levelled against the petitioner to have been proved, a finding with which the disciplinary authority concurred.

[3] Against the said order of punishment, the petitioner preferred appeal before the appellate authority i.e. the Secretary to the Ministry of Micro Small and Medium Enterprises, Government of India. Such appeal was however dismissed. In the petition the petitioner has not given the details of dismissal of the appeal, however learned counsel for the petitioner stated that the same was done in the year 2007/2008.

[4] Independently of the departmental proceedings the criminal prosecution against the petitioner continued. The trial Court by its judgment dated 20th December, 2018 acquitted the petitioner of all charges for having committed offences punishable under Sections 468, 471, 420, 409 read with Section 34 of IPC. According to the petitioner, he approached the department for recalling the order of removal after he was acquitted by the criminal Court. Since no action was taken by the department he has filed this petition.

[5] Learned counsel for the petitioner submitted that the charges in the departmental inquiry and in the criminal case were identical. The witnesses and the evidence relied upon in both proceedings were same. Since the petitioner has been honorably acquitted in the criminal case, the order of penalty of removal from service cannot sustain.

[6] In support of his contentions, counsel for the petitioner relied on following decisions :

(i) In case of G.M. Tank versus State of Gujarat and others reported in (2006) 5 SCC 446.

(ii) In case of Sukumar Das versus Tripura State Co-operative Bank Ltd. and others reported in (2017) 1 TLR 689.

[7] To counter the question of delay and latches, counsel for the petitioner submitted that the cause of action for filing the petition arose only when the petitioner was acquitted by the criminal Court. In any case, this being a continuous cause the petition should be entertained. In this context, he relied on the decision of the Supreme Court in case of Union of India and others versus Tarsem Singh reported in (2008) 8 SCC 648.

[8] In my opinion, the petitioner has not made out the case for interference. Firstly, the order of removal from service passed by the disciplinary authority and confirmed by the appellate authority had achieved finality way back in the year 2007/2008. The petitioner did not challenge these orders any further. In other words, the petitioner's challenge to the order of penalty came to an end when his appeal was dismissed by the appellate authority. If the petitioner was aggrieved by the appellate order, he ought to have challenged the same before appropriate forum in accordance with law. This not having been done, the petitioner cannot revive the challenge almost 11 years later on the ground that it was only recently that the petitioner was acquitted by the criminal Court of charges which were similar to those for which his department had held him guilty.

[9] The decisions cited by the counsel for the petitioner in this respect rest on substantially these similar facts. In case of G.M. Tank (supra) the employee concerned therein was charge sheeted by the department for possessing assets disproportionate to his known sources of income. He was dismissed from service on 21.10.1982 which order he had challenged in a writ petition before the High Court. The learned Single Judge having dismissed the writ petition he preferred a letter patents appeal. The letter patents appeal was also dismissed against which he had approached the Supreme Court. Parallelly the investigation was carried out which culminated into filing of a criminal charge sheet for offences punishable under the Prevention of Corruption Act, the Special Judge honorably acquitted the employee for such offences. It was in this context the appellant had argued before the Supreme Court that the Division Bench of the High Court had overlooked the fact that the criminal Court had honorably acquitted the accused-employee. Thus the factor of acquittal by the criminal Court was present when the employee's challenge to his order of dismissal by the employer was alive before the High Court.

[10] In case of Sukumar Das (supra) the learned Single Judge of this Court was concerned with the situation where also the facts were different. It was a case where the employee was placed under suspension by the employer namely, the Tripura State Co-operative Bank for his alleged involvement in criminal offences punishable under Sections 468, 471, 477, 380 and 420 of IPC. He was acquitted by the criminal Court which acquittal was confirmed in appeal and revision. In the meantime, he crossed the age of superannuation. Despite this, he was not paid his service benefits and post retiral benefits. It was in this background that he had to approach the High Court in which while allowing his petition the directions were issued for releasing his service benefits. In the said case the departmental inquiry was instituted but not culminated, presumably awaiting the outcome of the criminal proceedings.

[11] This is not a case where the cause raised by the petitioner can be stated to be a continuing one. Plain and simple, the petitioner has challenged an order of penalty of removal from service. The observations made by the Supreme Court in case of Tarsem Singh (supra) therefore would not apply.

[12] There is yet another reason why the petitioner's contentions cannot be accepted. I have perused the judgment of acquittal rendered by the trial Court. The learned Judge has held that the evidence against the petitioner is in the nature of hearsay evidence and that the prosecution had failed to prove the charges beyond reasonable doubt. This is thus not a case of no evidence or clean acquittal. As is well settled, the nature of proof required in a criminal case is vastly different then one required during departmental inquiry. The former proceeds on the requirement of proof beyond reasonable doubt whereas the later proceeds on the basis of preponderance of probabilities. Further, the technical rules of evidence also do not bind the departmental proceedings. The inhibition of not accepting hearsay evidence can also not be enforced in departmental proceedings with the same rigidity with which it would be enforced in a criminal case.

[13] For such reasons the petition fails and is, accordingly, dismissed. Pending application(s), if any, also stands disposed of.