Union of India and Others vs Prakash Kasiram Vyavahare

V.A. Naik, J—Rule. Rule made returnable forthwith. The petition is heard finally with the consent of the learned counsel for the parties.

By this petition, the petitioners-Union of India and the postal authorities challenge the order of the Central Administrative Tribunal, dated 14.03.2014, partly allowing an Original Application filed by the respondent and setting aside the order in review petition, dated 15.11.2007 and remanding the matter to the reviewing authority for considering the same in the light of the judgment passed by the learned Chief Judicial Magistrate in the criminal case.

Few facts giving rise to this petition are stated thus :

The respondent was working as a Gram Dak Sewak with the petitioners and during the period from 1995 to 1995, he had collected deposits from five customers with Recurring Deposit schemes and had failed to deposit the amount in the Post Office. In respect of three other depositors of the Recurring Deposit scheme, it is the case of the petitioners that the respondent had deposited it belatedly and there was temporary misappropriation of the said amount. A Departmental Enquiry was conducted against the respondent and after the charges were held to be proved, the respondent was removed from service by the order dated 12.11.2003. The respondent preferred an appeal against the order of removal from service, before the Appellate Authority, but the appeal was dismissed by the order dated 13.12.2004. In view of the provisions of Rule 20 of the Gramin Dak Sevak (Conduct and Employment) Rules, 2001, the respondent filed a review application before the Hon''ble President, but the said review application was also dismissed on 15.11.2007.

It is necessary to state at this juncture that when the departmental enquiry was being conducted against the respondent, the respondent was also prosecuted for the offences punishable under Sections 409 and 477 of the Indian penal Code. The charge in the criminal case was related only to four depositors, whereas in the departmental enquiry, the respondent was charged in respect of eight depositors. The learned Chief Judicial Magistrate acquitted the respondent in the criminal case by the judgment, dated 29.04.2006. Basing his case on the new material i.e. the judgment of the learned Chief Judicial Magistrate, dated 29.04.2006, the respondent filed a review application before the Hon''ble President, seeking review of the orders passed by the Disciplinary Authority and the Appellate Authority on the basis of the judgment of the learned Chief Judicial Magistrate. The review application was, however, dismissed by an order dated 15.11.1007, on the ground that the charges against the respondent in the departmental enquiry and the criminal case were altogether different. The reviewing authority, therefore, rejected the review application. After the review application was dismissed on 15.11.2007, the respondent challenged the three orders before the Central Administrative Tribunal in an original application. The Central Administrative Tribunal, by the order dated 14.03.2014, partly allowed the Original Application filed by the respondent and directed the reviewing authority to reconsider the matter in the light of the judgment, dated 29.04.2006, passed by the learned Chief Judicial Magistrate in the criminal case. While partly allowing the original application, the Tribunal did not consider the correctness or otherwise of the orders passed by the Disciplinary Authority and the Appellate Authority. The order of the Tribunal is impugned in the instant petition.

Mr. Rohit Deo, the learned Assistant Solicitor General of India, appearing on behalf of the petitioners, has challenged the order of the Tribunal primarily on two grounds. It is submitted that the removal of the respondent from services was founded on a departmental enquiry, in which the charges levelled against him were proved and hence, the respondent was not entitled to seek his reinstatement in service on his acquittal in the criminal proceedings. It is submitted that if the departmental enquiry is conducted against an employee and penalty is imposed, subsequent acquittal in a criminal case, on similar charges would not result in reinstatement of the employee in service. The learned Assistant Solicitor General of India relied on the judgments of the Hon''ble supreme Court reported in State Bank of Bikaner and Jaipur Vs. Nemi Chand Nalwaya, AIR 2011 SC 1931 : (2011) 129 FLR 937 : (2011) 4 JT 14 : (2011) 3 LLJ 13 : (2011) LLR 634 : (2011) 4 SCALE 56 : (2011) 4 SCC 584 : (2011) 1 SCC(L&S) 721 : (2011) 3 SCR 589 : (2011) AIRSCW 2583 ; and The Divisional Controller, KSRTC Vs. M.G. Vittal Rao, (2011) 13 JT 247 : (2012) 1 LLJ 320 : (2012) LLR 8 : (2011) 13 SCALE 33 : (2012) 1 SCC 442 : (2012) 1 SLJ 155 , to substantiate his submission. It is submitted that the charges in the departmental proceedings and the criminal case were also not similar as only one of the depositors was common to the departmental enquiry and the criminal case. It is stated that the charges levelled against the respondent in the departmental enquiry were related to eight depositors, whereas the charges levelled in the criminal prosecution referred to four depositors, of which only one was common to the departmental enquiry and the criminal case. It is stated that this aspect of the matter was rightly considered by the reviewing authority while rejecting the review application filed by the respondent. It is stated that the Tribunal has exceeded its jurisdiction in setting aside the order of the reviewing authority and directing the reviewing authority to reconsider the matter in the light of the judgment rendered by the learned Chief Judicial Magistrate in the criminal case.

Mr. Thakkar, the learned counsel for the respondent did not dispute the legal position enunciated by the Hon''ble Supreme Court in the various reported and unreported decisions, including the decisions reported in State Bank of Bikaner and Jaipur Vs. Nemi Chand Nalwaya, AIR 2011 SC 1931 : (2011) 129 FLR 937 : (2011) 4 JT 14 : (2011) 3 LLJ 13 : (2011) LLR 634 : (2011) 4 SCALE 56 : (2011) 4 SCC 584 : (2011) 1 SCC(L&S) 721 : (2011) 3 SCR 589 : (2011) AIRSCW 2583 and The Divisional Controller, KSRTC Vs. M.G. Vittal Rao, (2011) 13 JT 247 : (2012) 1 LLJ 320 : (2012) LLR 8 : (2011) 13 SCALE 33 : (2012) 1 SCC 442 : (2012) 1 SLJ 155 . The learned counsel, however, submitted that some of the charges against the respondent were same and the Tribunal has rightly directed the reviewing authority to reconsider the matter in the light of the judgment of the learned Chief Judicial Magistrate in the criminal case.

On hearing the learned counsel for the parties and on a perusal of the impugned order, it appears that the Tribunal was not justified in directing the reviewing authority to consider the matter afresh in the light of the judgment of the Chief Judicial Magistrate in the criminal case. The order of the reviewing authority clearly records that the new material i.e. the judgment rendered by the Chief Judicial Magistrate cannot be considered for reviewing the orders of the Disciplinary Authority and the Appellate Authority as the charges against the respondent in the departmental enquiry and the criminal case were altogether different. The reviewing authority had applied its mind to the facts of the case and the charges against the respondent in the departmental enquiry and the criminal case. Merely because the respondent was acquitted by the learned Chief Judicial Magistrate by the judgment, dated 29.04.2006, the Tribunal could not have allowed the original application and directed the reviewing authority to reconsider its order. The observation of the Tribunal that the new material i.e. the judgment of the Chief Judicial Magistrate had an effect of changing the nature of the case, does not appear to be correct. It also cannot be said, as it is observed by the Tribunal that the reviewing authority had not considered the new material. Indeed, the reviewing authority had considered the new material i.e. the judgment in the criminal case, but had refused to review the orders of the Disciplinary Authority and the Appellate Authority as the charges against the respondent in the criminal case and the departmental enquiry were different. It appears that the Tribunal has not appreciated the reasons recorded by the reviewing authority in the order, dated 15.11.2007, while rejecting the review application. Even otherwise, as rightly pointed out on behalf of the petitioners, the acquittal of the respondent in the criminal case could not have resulted in the reinstatement of the respondent as the departmental enquiry was independently held against the respondent and punishment was inflicted on him after the charges were held to be proved. The learned Assistant Solicitor General of India for the petitioners has rightly relied on the judgments of the Hon''ble Supreme Court to submit that the new material, that was produced by the respondent before the reviewing authority, was inconsequential and could not have resulted in setting aside the orders of the Disciplinary Authority and the Appellate Authority when the punishment was inflicted on the respondent after the charges were proved.

Hence, for the reasons aforesaid, the writ petition is partly allowed. The impugned order is quashed and set aside. Since, the Central Administrative Tribunal has not considered the correctness or otherwise of the orders passed by the Disciplinary Authority and the Appellate Authority, it would be necessary to remand the matter to the Tribunal to decide the same in accordance with law. It is needless to mention that the Tribunal should not reconsider the correctness or otherwise of the order of the reviewing authority.

Rule is made absolute in the aforesaid terms with no order as to costs.