Smt. Gauri Rani Malakar, wife of Sri Priyatosh Sharma vs The State of Tripura, represented by the Secretary, Department of Health & Family Welfare, Government of Tripura, & Ors.

By this intra-court appeal, the judgment and order dated 19.08.2016 delivered in W.P.(C) No.62 of 2009 by a learned Single Judge of this Court has been challenged by the writ petitioner, the appellant herein.

By means of the writ petition, the memorandum under No. F.14(115)-HFW/97/2512(V-III) dated 12.07.2004, Annexure-2 to the writ petition, has been challenged on two grounds that the charge, as framed by the said memorandum dated 12.07.2004, relates to a misconduct which occurred more than 4(four) years before when the memorandum dated 12.07.2004, was issued. Since the petitioner has been made to retire on 12.04.1999, in terms of Rule 9 (2)(b) of the Central Civil Services (Pension) Rules, 1972 as adopted in the State of Tripura, the departmental proceeding on the basis of the said misconduct cannot proceed legally even with leave of the Governor. That apart, since the charge as framed by the said memorandum dated 12.07.2004 is exactly identical to the charges framed in GR 671 of 2002 emanated from the same ''act'' by the petitioner, the appellant herein, and when by the judgment dated 20.02.2008, the petitioner has been acquitted from the said charge under Section 468 of the IPC as the prosecution has failed to establish the charge beyond reasonable doubt no departmental action cannot survive thereafter. It would be apposite to reproduce the basis on which the said acquittal was recorded by the Chief Judicial Magistrate, West Tripura, Agartala by his judgment dated 20.02.2008 in GR No.671 of 2002 and accordingly, the same is reproduced: "Now, it is very difficult to arrive at a decision whether the Matriculation Certificate as was produced by the accused person before her authority was a genuine one or forged. As per letter of the Controller of Examinations, Dhaka the date of birth of the accused person was not same as was recorded in the Service Book at the time of entry into the service of the accused person, but according to the prosecution the Duplicate Matriculation Certificate as produced by the accused was forged and so, to prove a document as forged, it is the duty of the prosecution to cover up all procedures so that the clear opinion can be formed that really the document is forged one. But here in this case regarding the Matriculation Certificate as was submitted by the accused person no effort was made to establish the said certificate as a forged one. It is also might happen that the Duplicate Matriculation Certificate as produced by the accused was not at all issued by the Dhaka Board, but at present position of the case it is impossible to ascertain regarding the genuineness of the said Matriculation Certificate of the accused. The issuing authority i.e. the Controller of Examinations was the best person to say about the genuineness of the Duplicate Certificate as it was issued by him. The prosecution case is that the accused forged the date of birth in the Matriculation Certificate issued by Dhaka Board. So, without proper examination by the appropriate authority (Controller of Examinations, Dhaka) plain way it cannot be said that the whole Matriculation Certificate is forged one and it was created by the accused for the purpose of illegal gain by cheating her authority."

The charge was framed under Section 468 of the IPC for forging a duplicate matriculation certificate issued by the Board of Intermediate and Secondary Education, Dhaka, now in Bangladesh where her date of birth was shown as 13.04.1946. In the service record, her date of birth was recorded as on 13.04.1941 at the time of opening. After investigation, the primafacie materials including a letter of the said board [Exbt. M.O.III] which was issued by the said board and wherefrom it surfaced that the recorded date of birth of the petitioner in their record was 30.04.1941 and not 13.04.1946 were gathered. Having found thus, the said charge was framed for trial.

There is no dispute that one complaint was filed against the petitioner to the Officer-in-Charge, East Agartala Police Station from the Government of Tripura, Health and Family Welfare Department on 20.08.2002, Annexure-1 to the writ petition, and the case being East Agartala P.S. case No.174/2002 under Section 468 of the IPC was registered and the final police report chargesheeting the petitioner was filed in due course. By the memorandum dated 12.07.2004 for committing the said misconduct, the following charge was leveled against the petitioner: "That the said Smt. Gouri Rani Malakar while functioning as Staff Nurse in the Sub-divisional Hospital, North Tripura submitted false certificate and affidavit indicating her date of birth is on 30.04.1946 though her actual date of birth is on 30.04.1941 as informed and confirmed by the Controller of Examination Board of Intermediate and Secondary Education, Dhaka, Bangladesh vide their No.4378/Con/2002 dated 12.06.2002. By submitting false certificate and affidavit and concealing the actual date of birth, Smt. Gouri Rani Malakar, Ex-Matron continued to work beyond her actual date of retirement on superannuation for a period of nearly 2(two) years (from 01.05.1999 to 19.03.2001). Such activities of Smt. Gouri Rani Malakar are nothing but for illegal gain and are most unbecoming on part of Govt. employees and this tantamount to gross misconduct. Thus, Smt. Malakar has violated Rule-3 of the Tripura State Civil Services (Conduct) Rules, 1988."

There cannot be any amount of doubt that the charge in the departmental proceeding and the charge that has been framed in the criminal prosecution are closely related. It is also not in dispute that the petitioner filed another writ petition in the Gauhati High Court which had the territorial jurisdiction at the relevant point of time, being W.P.(C) No.33 of 2005 for staying the disciplinary proceeding till the criminal prosecution is finalized. By the judgment and order dated 17.02.2005, Annexure-4 to the writ petition, the said writ petition was disposed of with the following observation: "Therefore, the outcome of such departmental enquiry or the criminal proceeding may not be same or in conflict which should be avoided. In view of this position, it is necessary for the disciplinary authority to stay the departmental enquiry till disposal of the criminal proceeding".

Further, the respondents were directed not to proceed with the disciplinary proceeding till disposal of the criminal proceedings, but liberty was granted to take the disciplinary proceeding to its logical end after disposal of the criminal proceeding.

On acquittal of the petitioner, the inquiry authority which stayed the proceeding in terms of the said order dated 17.02.2005 issued the notice to the petitioner for appearance on 11.11.2008. Such notice was communicated to the petitioner vide letter dated 22.10.2008, Annexure-8 to the writ petition. Later on, similar letter dated 28.01.2009, Annexure-9 to the writ petition, was communicated to the petitioner for her appearance on 06.02.2009 before the inquiring authority. The writ petition being W.P.(C) No.62 of 2009 has been filed by the petitioner to question the maintainability of the departmental proceeding in terms of Rule 9(2)(b) of the CCA (Pension) Rules, 1965 and also on whether after acquittal from the criminal prosecution the said departmental proceeding can survive inasmuch as the petitioner has been acquitted from the charge.

The respondents in order to resist the reliefs urged in the writ petition have contended that the subsequent writ petition being W.P.(C) No.62 of 2009 is barred by the principle of constructive res judicata inasmuch as the relief which ought to have been prayed in the previous writ petition since has not been prayed cannot be claimed by the subsequent writ petition. It has been further contended that since the acquittal has been recorded for some technical reasons that will not hit the disciplinary proceeding at all. The learned Single Judge by the impugned judgment and order dated 19.08.2016 has dismissed the writ petition having held that: "The disciplinary proceeding has been initiated against the petitioner with the allegation that her actual date of birth which was recorded as 13.04.1941 and that she altered her date of birth placing forged document and that was detected after it was verified from the Dhaka Board in the year 2002 and so the disciplinary proceeding which was drawn up on 12.07.2004 cannot be said to be barred by the law of limitation as contemplated in Rule 9(2)(b) of the CCA (Pension) Rules."

It has been further held that the petitioner by not placing the proper particulars in the writ petition has virtually suppressed the material facts from the court and hence, the writ petition has been dismissed with cost of Rs.2,000/-. However, it is found that there is no observation on whether after the acquittal, the departmental proceeding would survive or not. We assume that the said point was not raised by the petitioner at the time of hearing.

Mr. S. Kar Bhowmik, learned counsel appearing for the appellant has argued on the point of constructive res judicata quite strenuously but we are constrained to observe that the writ petition was not dismissed being barred by the said principle of law. The writ petition has been dismissed on merit. Therefore, we would not like to deal with that aspect of the matter. Further Mr. Kar Bhowmik, learned counsel has submitted that if any misconduct had at all purportedly been done by the petitioner that was so done in the year 1977 when the petitioner indisputably placed the duplicate certificate for alteration of her date of birth, not subsequent thereto. If that day is considered, then there cannot be any doubt that the departmental proceeding is barred by the provisions of Rule 9(2)(b) of the CCS (Pension) Rules, 1972 inasmuch as the petitioner has retired from her service on 30.04.1999 [afternoon] in terms of the Finance Department memorandum dated 07.04.1994. In support of his contention, he has relied on a decision of the apex court in State of U.P and another vs. Sri Krishna Pandey, reported in (1996) 9 SCC 395, where the apex court has observed as under: "6........But the events of misconduct etc. which may have resulted in the loss to the Government or embezzlement, i.e., the cause for the institution of proceedings, should not have taken place more than four years before the date of institution of proceedings. In other words, the departmental proceedings must be instituted before lapse of four years from the date on which the event of misconduct etc. had taken place. Admittedly, in this case the officer had retired on March 31, 1987 and the proceedings were initiated on April 21, 1991. Obviously, the event of embezzlement which caused pecuniary loss to the State took place prior to four years from the date of his retirement. Under these circumstances, the State had disabled itself by their deliberate omissions to take appropriate action against the respondent and allowed the officer to escape from the provisions of Rule 351- A of the Rules. ...."

Mr. Kar Bhowmik, learned counsel has further relied on a decision of the Gauhati High Court in Nabam Rameshwor Singh vs. State of Manipur and others, reported in 2001 (2) GLT 640, where the Gauhati High Court has held as under:

"5. On bare perusal of the memorandum of charges as in Annexure-A/4 to the writ petition, it has been revealed that the alleged omission or commission in other words, the event took place during the period from 1988-90 and the Departmental proceedings as against the petitioner was initially instituted in the month of October, 1997 under the impugned memorandum dated 6th October, 1997 (Annexure-A/4) i.e. after the lapse of about 7 years from the date of the alleged event. It is not disputed that for the purpose of determining the period of 4 years, the Govt. of India''s instructions and notification bearing No. 7/14/90-P and W(f) dated 23rd August, 1991 under CCS (Pension) Rules, 1972, Rule 9 specifically lays down that departmental proceeding shall be deemed to be instituted on the date on which the statement of charge is issued to the Govt. servants or pensioners. It is true that if a Govt. servant or officer caused pecuniary loss or committed embezzlement etc. due to misconduct or negligence or dereliction of duty than the departmental proceeding should also be instituted after his or her retirement as expeditiously as possible as there is no such bar for institution of the said proceeding under the law but the omission or commission or in other words, the events of misconduct etc. which may have resulted in the loss to the Government or embezzlement i.e. the cause for the institution of proceeding should not have been placed more than 4 years before the date of institution of the proceedings and the departmental proceeding if not instituted while the Government servants were in service, such proceeding shall not be in respect of any event which took place more than 4 years before such institution. This legal issue has been settled by the Apex Court. At this stage, I hereby recalled the decision of the Apex Court rendered in State of U.P. and another vs. Shri Krishna Pandey, reported in AIR 1996 SC 1656 wherein the Apex Court held thus:

''It would thus be seen that proceedings are required to be instituted against a delinquent officer before retirement. There is no specific provision allowing the officer to continue in service nor any order passed to allow him to continue on re-employment till the enquiry is completed, without allowing him to retire from service. Equally, there is no provision that the proceedings be initiated as disciplinary measure and the action initiated earlier would remain unabated after retirement. If Rule 351- A is to be operative in respect of pending proceedings, by necessary implication, prior sanction of the Governor to continue the proceedings against him is required. On the other hand, the rule also would indicate that if the officer caused pecuniary loss or committed embezzlement etc. due to misconduct or negligence or dereliction of duty, then proceedings should also be instituted after retirement against the officer as expeditiously as possible. But the events of misconduct etc. which may have resulted in the loss of the Government or embezzlement, i.e., the cause for the institution or proceedings, should not have taken place more than four years before the date of institution of proceedings. In other words, the Departmental proceedings must be instituted before lapse of four years from the date on which the event of misconduct etc. had taken place. Admittedly, in this case the officer had retired on March 31, 1987 and the proceedings were initiated on April 21, 1991. Obviously the event of embezzlement which caused pecuniary loss to the State took place prior to four years from the date of his retirement. Under these circumstances, the state had disabled itself by their deliberate omissions to take appropriate action against the respondent and allowed the officer to escape from the provisions of Rule 351-A of the Rules.''

In view of the above legal issue and position which has been settled by the Apex Court and also the provisions of law laid down under Rule 9(2)(b) of Central Civil Services (Pension) Rules, 1977, I hereby opined that the alleged events took place more than 4 years before the institution of the said departmental proceeding as against the petitioner which is not permissible under the law as discussed above. Though the Court is of the view that the State respondents under certain circumstances had disabled itself by their deliberate omissions to take appropriate legal action against the petitioner."

On keen reading of those decisions, this Court is of the firm view that those cannot be applied in the present case inasmuch as the fraud as exercised by the petitioner for altering her recorded date of birth was discovered when the competent authority received the communication dated 12.06.2006 in response to their communication dated 10.04.2006 on informing that in the records of Board of Intermediate and Secondary Education, Dhaka, Bangladesh the date of birth is recorded as 30.04.1941 not 30.04.1946. It is the well settled principle of law that for purpose of taking any action, the discovery of culpable act is highly material. Even Section 17 of the Limitation Act, 1963 has laid down the public policy. It has been provided in Section 17 of the Limitation Act that where the suit or application is based upon the fraud of the defendant or respondent or his agent, the period of limitation shall not begin to run until the plaintiff or applicant has discovered the fraud or the mistake or could, with reasonable diligence, have discovered it; or in the case of a concealed document, until the plaintiff or the applicant first had the means of producing the concealed document or compelling its production. As such, we do not find any infirmity in the finding returned by the learned Single Judge. The other grounds as raised by the petitioner that when the charge is identical and in the criminal prosecution the delinquent has been acquitted, there cannot be any conflicting decision in the departmental proceeding and as such, after acquittal the departmental proceeding will not survive.

Mr. Kar Bhowmik, learned counsel appearing for the petitioner has relied on another decision of the Gauhati High Court in Chandmohan Saha vs. State of Tripura and others, reported in 2008 (5) GLR 573, where it has been held that : "18. Learned counsel for the petitioner has also relied upon the Supreme Court decision reported in Capt. M. Paul Anthony v. Bharat Gold Mines Ltd. : (1999) 3 SCC 67, and also the decision in G.M. Tank v . State of Gujarat and Anr. : AIR 2006 SCW 2709, to contend that since the criminal proceeding and the departmental proceeding arise out of the same set of facts and as they are sought to be proved by the same set of witnesses and since the criminal court has already acquitted the petitioner by holding the charge to be not maintainable, it may not be justified to permit the departmental enquiry as no challenge to the acquittal order dated 6.8.2005 has been made by the State.

In the instant case as can be seen from the charge in the criminal trial and the charge indicated in the impugned charge memo dated 28.4.2006 that there is hardly anything to distinguish one charge from the other and it can be said that the charges against the petitioner for the criminal trial and the departmental enquiry are substantially the same. It is also noticed that the several witnesses who were to be relied upon to prove the charge during departmental enquiry were also witnesses in the trial and from the evidence adduced by these witnesses, the charge against the petitioner could not be established in the trial.

It can be said that the charge, evidence, witnesses and the circumstances in the instant case are one and the same and the criminal court on examination of all aspects concluded that the guilt against the petitioner could not be proved.

Under such circumstances, having regard to the decisions relied upon by the petitioner, I am of the view that it would not be justified to permit the disciplinary authority to initiate a departmental enquiry on the same set of facts with practically the same set of witnesses as the initiation of such an enquiry at a belated stage after acquittal of the petitioner would cause serious prejudice to the petitioner.

It is found from the learned trial Court''s decision that the very basis of the charge of misappropriation against the petitioner is not established as the cash amount (Rs.3,86,898/-) supposed to be entrusted to the petitioner was not correctly reckoned and, in fact, an amount of Rs.3,86,843/- is to be deducted from the said cash balance as the said amount was referable to cheques and Bank drafts drawn up from the cash balance. Thus, the conclusion reached on the basis of the audit report relied upon by the learned trial court was that defalcation, if any, is only for a sum of Rs.55/- and it is unlikely that a Cashier would be misappropriating a sum of Rs.55/-only.

In view of the categorical finding by the trial court that the charge itself is not established, it can be concluded that acquittal of the petitioner is not a technical acquittal but is a clear acquittal referable to the merit of the charge. In view of the fact that the petitioner has been given acquittal on the very same set of charge as is sought to be enquired into in the impugned departmental enquiry and since the said charge is sought to be established by the same set of witnesses and since the enquiry is sought to be conducted at a much belated stage after over 8 years of petitioner''s suspension on 15.1.1997, I am of the view that it would be unfair and unjust to permit the departmental enquiry to proceed as it would cause serious prejudice to the charged employee who has already retired from service. Accordingly, the impugned decision dated 28.4.2006 is held to be unsustainable and the same is quashed."

Thus, Mr. Kar, Bhowmik, learned counsel has urged this court to quash the departmental proceeding in view of the acquittal recorded by the judgment and order dated 20.02.2008, Annexure-1 to the writ petition.

Mr. J. Majumder, learned counsel appearing for the respondents has succinctly submitted that from bare reading of the said judgment dated 20.02.2008 it would be apparent that on the ground of admissibility of the documents and on failure of the prosecution to establish the charge beyond reasonable doubt, the acquittal has been recorded. Mr. Majumder, learned counsel has further submitted that there is no particulars in the writ petition to enable the court apply the principles as laid down in Capt. N. Paul Anthony (supra) or G.M. Tank (supra). In this case, the departmental proceeding was initiated without any delay. In Chandmohan Saha (supra) the failure of the prosecution was substantive in nature that the amount alleged to have been misappropriated could not be established as there was no proper reckoning.

Having appreciated the submissions made by the learned counsel, this court is of the view that this is not a fit case where this court would be inclined to scuttle the departmental proceeding at this stage. The petitioner will get the opportunity to place the said judgment and order of the criminal court in the departmental proceeding and to argue that no finding be passed against her in conflict with the substantive finding as returned by the said judgment and order. We are not satisfied that the petitioner has unveiled a case that there is substantive finding of the criminal court in respect of whether the petitioner had placed the forged document to get her date of birth altered by fraud or not and hence, the principle of Capt. N. Paul Anthony (supra) or G.M. Tank (supra) can be applied ex-facie.

Having held so, the writ appeal is dismissed with liberty reserved to the writ petitioner to raise all pleas in her defence including that for recording acquittal, no adverse action can follow from the departmental proceeding. In the fact and circumstances, the cost as imposed by the impugned judgment and order is interfered with and the same order stands quashed.