Himatlal Dalpatram Nimbark vs Deputy District Development Officer and Others

S.K. Keshote, J.—Heard learned Counsel for the petitioner. The petitioner, who was working as Talati-cum-Mantri in the office of District

Panchayat, Amreli, was ordered to be dismissed from services on the grounds of misconduct of temporary misappropriation of money.

The said dismissal order has been passed on 6-8-1982 after holding a full-fledged departmental inquiry against the petitioner. The petitioner filed

appeal against the aforesaid order made by the Deputy District Development Officer, District Panchayat, Amreli, and that appeal has also been

dismissed by the District Development Officer, Amreli. The petitioner has taken up the matter by filing Appeal No. 342 of 1983 before the Gujarat

Civil Services Tribunal at Gandhinagar and the Tribunal, under its order dated 9-11-1983, so far as the merits of the case are concerned, has held

against the petitioner, but the penalty of dismissal was ordered to be substituted by penalty of compulsory retirement from the service. Hence, this

Special Civil Application before this Court by the petitioner.

The learned Counsel for the petitoner made only two contentions in this case. Firstly, it is contended by the learned Counsel for the petitioner

that the petitioner has been held to be guilty of charges for which he was not charge-sheeted. It has next been contended that on the same charges,

a criminal case has also been lodged against the petitioner in which he was honourably acquitted. As the petitioner has been acquitted on the same

charges in the criminal case, the respondent authority has no jurisdiction to initiate departmental inquiry against him in this case and to punish him. In

support of this contention, the Counsel for the petitioner has placed reliance on the decisions of the Apex Court and of this Court in the case of (i)

Abdul Hakim Ahmad v. Dist. Supdt. of Police and Ors. reported in 1979 (XIX) GLR 210, (ii) Corporation of the City of Nagpur, Civil Lines,

Nagpur and another Vs. Ramchandra and others, , (iii) Rasiklal Vaghajibhai Patel Vs. Ahmedabad Municipal Corporation and Another, .

It is not in dispute that charge-sheet was given to the petitioner after criminal case has ended. From the judgment of the Tribunal, the facts which

come out are to be briefly stated:

The petitioner recovered substantial amount of land revenue, education cess, Takabi, Panchayat dues, etc. from various Khatedars (farmers)

between 1970 to 1979, but did not credited that money in the bank or Treasury though receipts on account of recovery were issued by him to the

concerned persons. As many as 12 criminal cases have been filed against him. Criminal misconduct on the part of petitioner in issuing receipts for

the amount recovered without crediting it to the bank or Treasury came to the notice of the Taluka Development Officer, who directed the Circle

Inspector to proceed against him and accordingly criminal cases have been filed. The criminal cases have been filed for the offence committed u/s

409 of the Indian Penal Code.

The criminal complaints relates to the allegations of temporary misappropriation of Government money collected by the appellant as recovery of

land revenue, education cess, Panchayat levy etc. In the aforesaid 12 criminal cases, it is true that the petitioner has been acquitted by the Chief

Judicial Magistrate, Amreli. It is also true that the petitioner was acquitted of criminal misconduct of temporary misappropriation of Government

money, but the criminal Court remarked that the petitioner was directly responsible for gross negligence in discharging his duties and misused the

powers vested on him relating to recovery of money and issuance of receipts therefrom. In conclusion, the Chief Judicial Magistrate held that the

petitioner was not guilty of any criminal offence u/s 409 of the Indian Penal Code, but at the same time also observed that the petitioner has, no

doubt, issued receipts in exchange of money to be recovered, but having regard to the evidence on record it was established that the appellant

issued receipts without collecting any money from the farmers. It was because of this conclusion drawn by the Chief Judicial Magistrate that the

petitioner was acquitted from the charge of temporary misappropriation of money. The criminal Court has passed strictures against the petitioner in

very strong terms. The strictures passed against the petitioner by the criminal Court have been reproduced in the judgment of the Tribunal. These

strictures have been passed by the Chief Judicial Magistrate in all 12 cases. After decision of this Criminal case, the respondent-District Panchayat

has proceeded against the petitioner departmentally. Five charges were there against the appellant, the substance of which has been reproduced by

the Tribunal in its judgment.

The first contention of the learned Counsel for the petitioner is devoid of any substance. The Tribunal has considered this aspect of the case. The

petitioner was found guilty of charges framed against him and these charges are of serious nature. As many as five charges have been framed

against the petitioner relating to gross negligence and dereliction and failure to perfom duty as Talari-cum-Mantri. These charges have been proved

and ultimately, penalty of dismissal has been given. The petitioner has been ordered to be dismissed from the services for gross negligence and

carelessness. The Counsel for the petitioner is unable to make out any case that the petitioner was held guilty of charges which were not the

subject-matter of the charge-sheet.

The second contention of the Counsel for the petitioner is also of no merits. In none of the cases cited by the learned Counsel for the petitioner,

it has been held that in case in a criminal case, delinquent has been acquitted on the same charges, disciplinary authority cannot proceed against him

departmentally. A close reading of the aforesaid judgment, on the other hand, gives out that it is permissible to proceed, both departmentally and

criminally against the delinquent on the same charges.

In the case of Kusheshwar Dubey Vs. Bharat Coking Coal Ltd. and Others, , the Supreme Court held that there can be no legal bar for

simultaneous proceedings being taken departmentally and criminally yet there may be cases where it would be appropriate to defer the

departmental proceedings awaiting disposal of criminal Court. In appropriate case, it would be open to delinquent to seek an order of stay or

injunction from the Court against the disciplinary proceedings. In parat 4 of this decision, the Supreme Court has made following observations:

We would like to point out that there are also authorities in support of the position that there is nothing wrong in parallel proceedings being taken-

one by way of the disciplinary proceeding and the other in the criminal Court. Reference may be made to decision of this Court in Jang Bahadur

Singh Vs. Baij Nath Tiwari, , and some decisions of High Courts such as Rama, P.C. v. Superintendent of Police Kolar AIR 1967 Mys. 220, Ali

Mohd. v. Chairman T.A. and C Udhampur 1981(2) SLR 225, Moulindra Singh v. Deputy Commissioner 1973 Lab. 1C 1564 (Gau. H.C.) and

Shaik Kasim Vs. The Superintendent of Post Offices, Chingleput Dn. and Another, .

The relevance of this point may be for praying for staying of departmental proceedings or criminal proceedings where both would have been

simultaneously started, but in the present case, as stated earlier, departmental proceedings have been started after criminal case has been disposed

of. Leaving apart the proposition as conversed by the Counsel for the petitioner, the Tribunal has, after considering charges framed against the

petitioner in the disciplinary proceedings and the charges framed in the subject-matter in the criminal trial, has held that the inquiry subsequently

held against the petitioner was not on the same charge of misappropriation but on the charge of gross negligence, dereliction and failure to perform

duty as Talati-cum-Mantri. The Tribunal further held that though the material evidence on record to prove the charge in the inquiry is the same

which was taken in support of proving the criminal offence of misappropriation, but the acquittal was entirely on different count from the charge of

the misappropriation of Government money and not with reference to gross negligence, dereliction and failure to perform duties. I have also gone

through the charges framed against the petitioner and I find that it is not correct to say on the part of the petitioner that the subject-matter of the

charges in these two proceedings were identical. Leaving apart these two contentions and the fact that in criminal case the petitioner has been

acquitted the next question that arises is whether it is a case where this Court should interfere with the order of the Tribunal or not?

In the criminal case the petitioner has been acquitted only on the ground that the evidence has come on record that though he has passed

receipts of the amount of land revenue, education cess, Takabi, Panchayat dues etc., but the amount has not been received by him. The criminal

Court has also found as a fact that the petitioner has issued receipts but the case of misappropriation was not accepted as money was not

received. The act of the petitioner to issue receipts to the farmers in advance of the amount recovered and not to receive the said amount, itself is

gross misconduct and not only it is gross misconduct but it is equally a very serious negligence and dereliction in discharging duties. There are

charges against the petitioner of temporary misappropriation of money as it appears from the charge No. 1. Even if it is taken to be a case where

the petitioner has not received the amount, but his act to issue receipts itself is sufficiently a grave and gross misconduct which justified the action of

the respondents to proceed against him departmentally and to give him the penalty. The Tribunal, though has taken the dismissal to be excessive

and has substituted it with a penalty of compulsory retirement, that seems to be undesirable as the Tribunal or this Court has limited powers of

interference with the quantum of penalty to be awarded to the delinquent for the proved misconduct. this Court or the Tribunal could have

interfered with the quantum of penalty where the penalty imposed was shocking to their judicial conscious and not otherwise. I do not consider it to

go on this question any more as that part of the order of Tribunal is not under challenge. In the result, this Special Civil Application fails and the

same is dismissed. As nobody has put appearance on behalf of the respondents, no order as to costs.