Tuesday, September 27, 2011

OA No. 141 OF 2007






Sri A.K. Pranesh, aged 50 years,
S/o late L. Krishnamurthy,
R/at No.262, 2nd B Cross, 11th Main,
BEL Colony, Vidyaranyapura,
Working as LDC,
Institute of Wood Science & Technology,
18th Cross, Malleswaram,
Bangalore-2. ... Applicant

(By Advocate Shri T. Narayana Swamy)

1. The Director,
Institute of Wood Science & Technology,
Malleswaram, Bangalore-3.

2. The Director General,
Indian Council of Forestry Research & Education (ICFR&E),
New Forest (P.O.), Dehra Dun – 248 006.

3. Union of India by the Secretary,
Department of Forest and Wildlife,
Ministry of Environment and Forests,
Paryavaran Bhavan, Lodhi Road,
New Delhi – 110 003. ... Repondents

(By Advocate Shri M.V. Rao,
Sr. Central Govt. Panel Counsel)


Hon'ble Smt. Leena Mehendale, Member (A) :

The applicant who was an UDC working in the respondent office was
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occassionally required to be incharge of the Guest house and the Scientists' Hostel during which time he was required to take care of maintenance and up-keeping of the above two premises and was also required to work as a Cashier during the period (including non office hours) as there would be cash transactions by the guests in terms of payment to guest room charges, etc.

2. On 23.02.2002, he was issued a charge sheet accusing misappropriation and embezzlement of money to the tune of Rs.40,705/- (Rupees forty thousand seven hundred and five only) and also for furnishing fraudulent travelling claim bills. After inquiry, the Disciplinary Authority who held that second charge was not proved, imposed the penalty of reverting the applicant from the post of UDC to LDC by order dated 26.7.2004 (ANNEXURE-A/5). The Appellate Authority, who was approached had also psssed an order on 30.1.2006 (ANNEXURE-A/7), rejecting the prayer of the applicant. The applicant has challenged both the orders under Section 19 of the Administrative Tribunals Act, 1985.

3. From the OA it appears that the applicant would like to claim that he was not given any opportunity and therefore the inquiry was not fair. Secondly, the Inquiry Officer did not examine any witness and the applicant would claim that the department has therefore, failed to prove anything against him and further that as
there was no chance for him to cross-examine anyone. He also claims that the charges were neither specific nor clear, nor free from ambiguity. More importantly, the working arrangement in the said guest house and Scientists' Hostel was such that during office hours all payments were to be made to the
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Cashier alone while beyond office hours and on holidays, the payments were to be made to the Chowkidar and his job was only to make entries in the register, thus, there being no scope for him to handle or embezzle any money.

The learned counsel for the applicant has argued vehemently on each of the above points and has cited several judgments in support of his reasons for quashing the orders at Annexures/A5 and A7.
I. On the question of Inquiry Officer not examining any witnesses, the learned counsel cites the case of Roop Singh Negi Vs. Punjab National Bank & Ors. - (2009) 1 SCC (L&S) 398:
"No witness was examined to prove the documents. The management witnesses merely tendered the documents and did not prove the contents thereof. Reliance, inter-alia was placed by the enquiry officer on the FIR which could not have been treated as evidence".

The Court therefore held that no documentary evidence was produced before the Enquiry Officer.
II. The second citation relied upon by the learned counsel for the applicant namely, LIC of India Vs. Ram Pal Singh Bisen – 2010 (1) SCC (L&S) 1072 para 27 and 31 also deals with the question of proving the documentary evidence.
"27. It was the duty of the appellants to have proved the documents Exhibits-A1 to A-10 in accordance with law. Filing of the enquiry report or the evidence adduced during the domestic enquiry would not partake the character of admissible evidence in a court of law. That documentary evidence was also required to be proved by the appellants in accordance with the provisions of the Evidence Act, which may have failed to do."

31. Under the law of evidence also, it is necessary that contents of documents are required to be proved either by primary or by secondary evidence. At the most, admission of documents may amount to admission of contents but not its truth."

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The learned counsel made out a point that mere production of documents, without producing through the witness and without any witness to speak on the contents and the truth of the documents will not be an evidence.

III. The third citation viz., D. Muralidhar Vs. Central Bank of India Writ Petition No.10608 of 2000 (S-DE), D/-4-1-2005 2005 AIR – Kant. H.C.R. 344

At Page 355 para 39:

"To prove these allegations, the management had not examined any witnesses nor they have got it market any documents, except producing credit voucher/slips, B.P. voucher/debit voucher, withdrawals slips, B.P. Ledger folios and these documents are not even identified by any witnesses only on the ground that the most of the exhibits produced are copies of the original records. Since these documents were produced by the Presenting Officer on behalf of the management, when a request was made by the delinquent officer to permit him to cross examine the Presenting Officer with reference to the documents, records produced in the enquiry, the enquiry officer brushed aside this request by saying that the cross-examination will be permitted "when the written brief (arguments) submitted by the Presenting Officer is made available to CSO/DR for their counter remarks". This is repeated through out the enquiry proceedings whenever the CSO/DR had made their request to permit them to cross-examine the Presenting Officer who had produced the documents/records to prove the allegations made in the charge memo."

IV. The learned counsel has also cited the judgment of the Hon'ble High Court of Karnataka in the case of G.V. Aswathanarayana Vs. Central Bank of India, by Chairman, Bombay and Others – ILR 2003 KAR 3066, on the point that the burden of proving the documents lies on the Inquiry Officer. The headnote of the judgment states as below:
"(A) CENTRAL BANK OF INDIA OFFICER, EMPLOYEES CONDUCT REGULATIONS, 1976 – Regulations 3(1), 4, 24 – Enquiry Officer gave report against the delinquent on some charges – Disciplinary Authority concurs with the findings of the Enquiry Officer – Orders of both
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challenged in Writ Petition – Writ Petition dismissed. In writ appeal order of Learned Single Judge set aside and it was held that vagueness of charge cannot be sustained and non-supply of documents to the delinquent will cause serious prejudice to the delinquent.

(B) CONSTITUTION OF INDIA – ARTICLES 226 AND 227 – Charge memo – Charge memo issued to a delinquent employee is defective in substantial terms – Held, that the enquiry proceedings and the final order that may be made on the basis such defective charge memo would be vitiated and only on that ground the penalty imposed on the delinquent is liable to be quashed.

(C) CONSTITUTION OF INDIA – ARTICLES 226 AND 227 – Departmental proceedings – Procedure to be followed before the departmental or domestic enquiry commences – Held, that delinquent must be informed clearly, precisely and accurately of the charges levelled against him and the object of this requirement is that the delinquent employee must know what he is charged with and have the adequate opportunity to meet the charge and to defend himself by giving a proper explanation, after knowing the nature of the offence or misconduct with which he is charged, otherwise, it will amount to his being condemned unheard."

4. In the Roop Singh Negi's case the documents relied upon were required to be proved through witnesses. In the second citation too, the evidence collected by the investigating officer during investigation was not properly exhibited or proved through witnesses. However, in the present case, the applicant has himself admitted the fact that he was in the practice of collecting cash from the guests and the occupants of the hostel towards rental, but, was not depositing the same in proper time as was required. On more than one occasion, he has remitted the money to the cash box of the office only after being pointed out that he was keeping the money unauthorisedly. Then he would pay off the money to office. The question of proving the evidence as well as examining witnesses and giving an opportunity to the charged officer to cross examine the witnesses, all these arise only when the charges are denied by the charged officer.
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As has been rightly pointed out by the learned counsel for respondents, the applicant during the disciplinary enquiry was assisted by a fairly senior officer of the department itself, namely, Shri S.S. Joshy, Conservator of Forests (Retd.), who, apart from being a senior and knowledgable officer of the department, also possessed a Law degree and was thus fully aware of all the formalities both procedural and qualitative.

We also observe that in the OA, the applicant has not categorically denied the contention that he was actually receiving payment from the guests and would like us to believe that if the rule names somebody else for receiving the money, then, he cannot be held responsible for embezzlement even if he has personally collected it and not credited in time.

5. The case of State of Uttaranchal & Ors. Vs. Kharak Singh - (2008) 8 SCC 236 relied upon by the learned counsel for the applicant is irrelevant for the reason that therein, the Hon'ble Apex Court has cosidered following two points:-
"19. .......the officer, who inspected and noted the shortfall of trees, himself conducted the enquiry, arrived a a conclusion holding the charges proved and also strongly recommended severe punishment of dismissal from service.

20. .....The Department's witnesses were not examined in his presence.

In the same judgment the Apex Court has further noted that :

..... Likewise, there is no evidence to show that after submission of the report by the enquiry officer to the disciplinary authority, the respondent herein was furnished with the copy of the said report along with all the

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relied upon documents. When all these infirmities were specifically pleaded and brought to the notice of the appellate authority (i.e. Forest Conservator), he rejected the same but has not pointed out the relevant materials from the records of the enquiry officer and disciplinary authority to support his decision. Hence, the appellate authority has also committed an error in dismissing the appeal of the respondent."

6. The circumstances of present case are different. The question of providing documents through examination of witnesses became important in that judgment, because the investigating officer himself wore the hat of Enquiry Officer.

7. The learned counsel for the applicant also claimed that while charge No.1 accuses the applicant of having mis-appropriated Rs.40,705/- over a period of three years (Annexure-A/1), the detailed bifurcation of this amount along with receipts issued to the guests, etc. has not been produced by way of documents and to that extent, the charges are unclear and vague.

To this, the learned counsel for respondents has pointed out that Annexure-R/17, dated 30.07.2002, which gives these details is known to the applicant as the same copy was given to him on 23.09.2002. The learned counsel for respondents also points out to Annexure-R/21 in which the applicant has accepted the mistake in submitting wrong tickets (pertaining to charge No.2 levied on him).

8. The learned counsel for the applicant further argued that Presenting Officer who did not examine any witnesses, has nevertheless given his own evidence which, he is precluded from. The Presenting Officer must prove the contents through witnesses and not by producing the documents himself. Merely
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presenting the documents before the Inquiry Officer without proving them is no evidence. Thus, the whole emphasis of the learned counsel for the applicant seems to be on the point that the documents must be proved through witnesses, but they were merely produced before the Inquiry Officer by the Presenting Officer and thus the applicant did not get any chance to cross examine any witness and refute the contention of the documents.

9. The learned counsel for the applicant has also cited several judgments wherein the ratio dicidendi is that an appellate decision reflecting non application of mind is liable to be quashed. Towards this, he has cited the decision of the Karnataka High Court in the case of M. Srinivasa Vs. Chairman & Managing Director, BEML – ILR 1999 KAR 600; where the core issue for rejecting the decision of the Appellate Authority was that the Appellate Authority did not apply its mind to consider whether the penalty imposed was excessive or inadequate or severe. Para 11 of the above judgment states as under:
"11. ....... Rule 33 in express terms requires the appellate authority to consider whether the penalty imposed is excessive or inadequate or severe. In my view the appellate authority should have objectively considered the gravity of the charges alleged and the punishment imposed by the disciplinary authority. .... The punishment imposed by the appellate authority shocks the conscience of any reasonable person. Thirdly when the rule requires the authority to discharge its duties in a particular manner, the said authority is bound to follow the rule. Breach of the rule would definitely vitiate the proceedings. .... Therefore, I am of the view, that on the questionn of penalty to be imposed, the appellate authority has not applied its mind and has not assigned any reasons whatsoever while confirming the punishment imposed by the disciplinary authority. In view of all this, the order made by the appellate authority requires to be set aside and the matter requires to bre remanded to the appellate authority to redo the matter in accordance with law."

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10. The respondents have commented on the applicability and interpretation of these citations besides pointing out some more citations.

Firstly, the citation of the High Court of Karnataka - the issue highlighted by the Hon'ble High Court was that a departmental enquiry will be bad in law if no opportunity is given to the applicant. But, in the instant case, full opportunity has been given to be represented through an able retired senior officer.

In the case of D. Muralidhar Vs. Central Bank of India – 2005 AIR – Kant.H.C.R. 344, the inquiry proceedings were set aside becuase the inquiry proceedings were not based on properly produced evidence. The counsel for respondents pointed out that unlike in a criminal case, where proving beyond doubt is required, here, what is needed is only establishing the prepondenance of probability.

The counsel for respondents points out that although mere filing and production of documents is insufficient for a court proceedings in a criminal charge, but that is not so in departmental enquiry. Similarly, examining witnesses is also not a must for all the cases when it is a matter of examining the original records. The learned counsel also vehemently argued that the most important and crucial point in this departmental enquiry is that, there was an admission of guilt by the applicant as can be read from quoted portion in the chargesheet:.
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"ARTICLE I :- I was carrying the duties of maintenance of Guest house and Scientist Hostel as Care taker besides my regular duties. It may be that an few occasions remittances of rent collected might have slipped as CDL's engaged in the Guest house work were also involved in collecting the above this actual position was explained to the Vigilance Officer stating that it will be difficult to recall the individual entries after lapse of two years and it is not my intention to misappropriate the money which is very small compared to the total receipts of guest house during the year 1999. My letter dated 12.12.01 was submitted as desired by the Vigilance Officer and I undertook to remit the difference between receipts and remittances. I also pleaded to allow reimbursement in instalments. The period covered under vigilance and of my tenure relates to the financial years 1998-99, 1999-2000 totalling to Rs.23,605/."

11. The learned counsel for respondents refutes the contention that the charges were vague. In fact, the charges were very specific giving details of the money kept-up by the applicant without depositing in the office. Thus, the charges are without any ambiguity.

12. There was no prejudice in the mind of Inquiry Officer or the Disciplinary Authority. Hence, the plea of bias or malafide cannot be sustained in view of such clear admission of guilt,. He points out the following statements of the applicant made before the Inquiry Officer. (Annexure-R/16):
"With reference to the Enquiry regarding the payments of the Guest house held on 22-11-2001 at your room in the presence of Sri N. Rama Rao, Controller, IWST. The documents produced by me has been verified from the both sides. The amount which were not credited by me in capacity of caretaker during 1999 which were checked by the Finance Officer and uncredited amount will be paid by me.

Further, I earnestly request you to be kind enough to pardon me for the above mistakes which were committed by me during the period as stated above. I kindly request you kindly deduct the same on easing instalment basis."

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13. The learned counsel for respondents has relied on the following judgments of the Hon'ble Supreme Court:
1. Director General, Indian Council of Medical Research & Ors. Vs. Dr. Anil Kumar Ghosh & Anr. - (1998) 7 SCC 97 and submits that the details of this case which appear similar to the instant case, the Hon'ble Apex Court has recorded in Paragraphs No.11 and 13 as below:
"11. ..... The documents were taken on file during the course of the enquiry and the first respondent perused every one of them before the conclusion of the enquiry. Copies were also furnished to him and as requested by him he was given seven days' time .......... Instead of giving numbers to the exhibits as and when the documents were taken on file, the Enquiry Officer would appear to have given serial numbers to the exhibits at the conclusion of the enquiry on 21-7-1977. The adoption of such a procedure by the Enquiry Officer was not violative of the principles of natural justice.

13. The objection that the certified copies of the Assessment Register should not have been marked withot examining the officials concened of the Municipality is untenable."

The learned counsel for respondents, thus emphasises that the issue settled by this judgment is that the genuineness of the documents must be questioned during enquiry and if they have not been so questioned, no further proving through witnesses is required.

14. The second judgment relied upon by the learned counsel for respondents in the case of State Bank of Patiala & Ors. Vs. S.K. Sharma – (1996) 3 SCC 364, regarding absence any witnesses the Hon'ble Apex Court in para (h) has held as under:
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"The several procedural provisions governing the disciplinary enquiries are nothing but elaboration of the principles of natural justice and their several facets.. ...... ..... It is designed to provide an adequate opportunity to the delinquent officer to cross-examine the witnesses effectively and thereby defend himself properly. It is a procedural provision. Merely because of use of word 'shall' therein, it cannot be held to be mandatory. Moreover, even a mandatory requirement can be waived by the person concerned if such mandatory provision is conceived in his interest and not in public interest. From this conduct, the respondent must be deemed to have waided it."

15. Thirdly, in the case of K.L. Tripathi Vs. State Bank of India & Ors. - (1984) 1 SCC 43 relied upon by the learned counsel for respondents, the Apex Court in para 33 has held as under:
"33. The party who does not want to controvert the veracity of the evidence from record or testimony gathered behind his back cannot expect to succeed in any subsequent demand that there was no opportunity of cross-examination specially when it was not asked for and there was no dispute about the veracity of the statements. Where there is no dispute as to the facts, or the weight to be attached on disputed facts but only an explanation of the acts, absence of opportunity to cross-examination does not create any prejudice in such cases."

16. We tend to agree with the learned counsel for the applicant to a limited extent that the Appellate Authority may not have properly assessed the evidence for charge No.2 which was in any case a charge of minor and limited consequence as compared to charge No.1. It only alleges that the applicant had submitted a false T.A. bill. Apparently, there is an admission by the applicant before the Enquiry Officer that he did submit a wrong T.A. bill. It is a matter of assessment whether this action should be treated as a mistake or a fraud. Both the Enquiry Officer and the Disciplinary Authority have not held it as fraud and hence held as not proved the charge No.2 which states:
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"Shri A.K. Pranesh, U.D.C., submitted frudulent travelling claims bill for the official tour conducted by him."

despite the admission of a wrong bill tendered by the applicant. There is some difference between submitting a wrong bill and submitting a fraudulant bill. While the Enquiry Officer and the Disciplinary Authority did not interpret the action of the applicant as submitting a deliberate and fraudulant bill, the Appellate Authority seems to have interpreted it in that manner without discussing reasons thereof. Hence, we tend to agree with that part of charge, that is, charge No.2 can be taken as not proved and the judgment of the Appellate Authoritystands to modification to that extent.

17. We however notice that even after coming to a different interpretation for charge No.2, the Appellate Authority had not considered 5enhancement in the quantum of punishment already imposed by the Disciplinary Authority who did so only on the basis of charge No.1. Therefore, we also tend to agree that there is no need to modify the quantum of punishment first awarded by Disciplinary Authority and finally awarded by the Appellate Authority. We must further add that this Tribunal can go into the details of the charges and the manner in which the evidence is considered and interpreted by the Disciplinary Authority. But, the Tribunal is normally not supposed to interfere with the quantum of punishment. In the instant case, we find that the applicant has admitted his guilt of temporarily utilising the money received by him in the Guest house, etc. and not crediting it in the office in time. We find that such incidences have not happened once or twice, but have happened over a period of three years and the applicant had been in the
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habit of tendering the money to the office only on being pointed out.

18. In view of the above and after duly considering the context of all the judgments quoted before us, we feel that there is no ground to substantiate that the charges were vague or unclear or that evidence was not properly produced or that the Departmental Enquiry vitiates on grounds of non-examination of witnesses, or that there was malafide shown by Enquiry Officer or Disciplinary Authority, we therefore see no need to interfere with the impugned orders of penalty at Annexures-A/5 and A/7. The OA is therefore, dismissed with no order as to costs.



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