PER HON’BLE MR. B.ANAND, ADMINISTRATIVE MEMBER

1. This OA.No.021/171/2017 has been filed under Section 19 of the Administrative Tribunals Act 1985, seeking the following main relief:

“(i) To call for the records pertaining to the 5th respondent Order No.GMTD/NGD/VIG/KS/RM/NGD/2011-12/21, dated 16.07.2011 imposing the penalty of “Compulsory Retirement” against the applicant and the action of the respondents in not reviewing/revoking the same in pursuance of the clear acquittal of the applicant in CC No.310/2016, wherein the charges are one and the same in both the disciplinary enquiry and criminal trial and quash and set aside the same as illegal, arbitrary and violative of Articles 14 and 16 of the Constitution of India and rules on the subject matter and also violative of principles of natural justice and consequently direct the respondents to reinstate the applicant into service with all consequential benefits in the interest of justice and to pass such other order or orders as this Tribunal may deem fit and proper in the circumstances of the case.”

2. The brief facts of the case are that the applicant initially joined in the erstwhile Department of Telecom on 01.05.1991 as Part Time Casual Labour, and subsequently, regularized as Regular Mazdoor with effect from 01.08.2002. While working as Regular Mazdoor in the office of the 3rd respondent, he was issued with a charge memorandum dated 23.05.2010 by the 5th respondent on the following Articles of charge:

“That the said Sri K.Samson, RM, O/o GMTD, Nalgonda, while working as Regular Mazdoor at Cash Counter, O/o GMTD, Nalgonda, under the control of AO (Cash), Nalgonda, has fraudulently encashed and misappropriated the following cheques during period from Feb-2008 onwards. The fraud was detected during June 2009 when AO (Cash) addressed Superintendent of Post Offices, Nalgonda regarding the payment of amounts booked by Money Orders through cheques in respect of refund cases, Superintendent of Post Offices replied stating that no money orders were booked in the name of payees as stated by the AO (Cash) as cited above. This has been reported by DGM (F&A) in his Note dated 01.08.2009 to GMTD, Nalgonda.

S.No.	Cheque No	Issue date	Amount	Remarks
1	149536	27.01.2009	10,869	Refund case
2	065225	16.02.2009	9,177	Refund Case
3	149565	29.01.2009	9,187	Refund case
4	150030	24.12.2008	12,917	Refund case
5	065214	16.02.2009	10,517	Refund case
6	065226	16.02.2009	9,929	Refund case
7	149527	27.01.2009	6,991	Refund case
8	149535	27.01.2009	5,199	Refund case
9	944921	02.12.2008	10,983	Refund case
10	150078	29.12.2008	3,966	Refund case
11	065223	16.02.2009	10,369	Refund case
12	065212	16.02.2009	9,307	Refund case
13	065217	16.02.2009	10,443	Refund case
14	436560	20.03.2009	12,687	Refund case
15	918512	16.05.2008	15,000	Enhancement rent arrears of Dattaipalli Tel.Exge from 01.09.2005 to 01.02.2008
16	109983	08.02.2008	5,200	Enhancement rent arrears i/r/o Aravalli CI BTS
				Total R.1,52,741/-

On verification it is noticed that the cheques issued in favour of the Post Master have been altered without proper attestation and encashed at the bank. It is also found that the bank had cleared some time barred cheques issued towards building rent. On verification it is found that these cheques also had been encashed after changing the date of issue and also the name/station. All the cheques had been encashed as bearer cheques and signature of K.Samson, CO is affixed on the back side of the cheques as the bearer.

Sri KVS Sarma, CAO (Plg), Sri ASN Gupta, Sri J.Ravi and Smt.J.Krishnaveni the then concerned AO, Cash/AO, Planning have submitted their statements regarding the involvement of the CO in this regard. SBH Manager, Nalgonda, has stated in his letter Lr.No.F/dep/39, dtd 23.09.2009 that cheques were paid to the bearer of the cheques, i.e., employee who was regularly deputed from cash section from Banking transactions of BSNL, Nalgonda.

That the said Sri K.Samson, RM, O/o GMTD, Nalgonda, committed fraud for Rs.1,52,741/-. By the afore said act Sri K.Samson, O/o GMTD, Nalgonda violated Rule-4 (1) (a) (b) (c) and Rules-5 of BSNL CDA Rules, 2006.”

The applicant denied the charge, vide his representation dated 01.06.2010, and the respondents have appointed an Inquiry Officer and Presenting Officer to inquire into the charges. The applicant contends that a regular inquiry was conducted against him and during the inquiry, the prosecution miserably failed to establish the charge against the applicant. In the meanwhile, a criminal case was also initiated against the applicant on a complaint made by the department on the same set of charges in Cr.No.171/2009 dated 06.08.2009, before the First class Judicial Magistrate at Nalgonda. The Presenting Officer had submitted his brief and the applicant submitted his defence brief against the Presenting Officer’s brief to the Inquiry Officer. The Inquiry Officer, without considering the facts explained by the applicant, submitted his report dated 22.05.2011 holding the charges levelled against the applicant as proved, which communicated to the applicant vide the 5th respondent letter dated 01.06.2011.

3. The applicant has further submitted that his representation dated 20.06.2011, against the findings of the Inquiry Officer, to the Disciplinary Authority requesting him to take an objective view by considering the entire charge sheet and evidence on record and the facts and circumstances explained by him. The Disciplinary Authority vide impugned order dated 16.07.2011 issued final orders imposing the penalty of “Compulsory Retirement” against the applicant. Against the orders of the Disciplinary Authority, the applicant submitted his appeal dated 23.08.2011 to the Appellate Authority, which is pending with the respondents.

4. The applicant has contended that it is a clear case of no evidence and the prosecution evidence is nowhere near the proof for the charges made against the applicant.

5. The applicant has further submitted that while the matter stood so, the applicant was acquitted in the Criminal Case CC .No.310/2012 , vide orders dated 30.07.2016, wherein the Court of Special Judicial Magistrate of First Class (For Proh. & Excise Offences), Nalgonda, acquitted the applicant stating that the prosecution failed to prove the guilt of accused beyond reasonable doubt for the offence punishable under Section 408, 418, 468 IPC with which he stands charged. The applicant immediately made a representation on 30.09.2016 to the 3rd respondent to revoke the impugned punishment orders imposing the penalty of compulsory retirement in view of his acquittal in the Criminal Case No.310/2012, dated 30.07.2016, wherein the charge is one and the same which is made against him in disciplinary proceedings. When there was no response from the respondents, the applicant once again made a representation dated 15.12.2016 to the 2nd respondent for issue of necessary orders for revocation of the impugned orders of compulsory retirement, which was acknowledged by the respondents vide their letter dated 15.11.2016.

6. The applicant has further submitted that normally when the departments initiate criminal proceedings along with departmental inquiry proceedings and the charges in both the proceedings are one and the same, it is the duty of the Disciplinary Authority to await the outcome of the criminal proceedings. In the instant case, the applicant is only a Regular Mazdoor, who is not entrusted with any powers to deal with financial transactions. He has no cheques powers. He is no way connected with the duty or responsibility of issuing cheques, sending them to the customers or anybody. It is the senior officers in the Accounts Wing of BSNL, in connivance with the Bank authorities who have committed the crime. He was made a scapegoat for the actions of the higher authorities. Neither the nature of duties or the evidence on record supports the case of Disciplinary Authority. The respondents should have reviewed the penalty once the fact of acquittal of the applicant in the criminal case has come to their knowledge.

7. The applicant has, therefore, challenged the impugned orders on the following grounds:

(i) The impugned orders dated 16.07.2011 imposing the penalty of compulsory retirement against the applicant is illegal, arbitrary and violative of Articles 14, 16 and 311 of the Constitution of India and the Rules on the subject;

(ii) That the action of the respondents in not reviewing/revoking the impugned orders of compulsory retirement in pursuance of the clear acquittal of the applicant in CC No.310/2012 dated 30.07.2016, is illegal, arbitrary and is violative of principles of natural justice;

(iii) That it is a clear case of no evidence and the prosecution evidence is nowhere near the proof for the charges made against the applicant.

8. The respondents have contested the OA by filing a reply statement. They have stated that the applicant while working as Regular Mazdoor (RM) at cash counter in the office of the General Manager, telecom District, Nalgonda, fraudulently encashed and misappropriated 16 Nos. SBH Cheques to the tune of Rs.1,52,741/- during the period from Feb 2008 onwards. The fraud was detected during June 2009, when Accounts Officer (Cash) addressed Superintendent of Post Offices, Nalgonda, regarding the payment of amounts booked by Money Orders through Cheques in respect of refund cases. The Superintendent of Post Offices replied stating that no money orders were booked in the name of payees as stated by the AO (Cash), Nalgonda.

9. The respondents have further submitted that on verification, it was noticed that the Cheques issued in favour of the Post Master have been altered without proper attestation and encashed at the Bank. It was also found that these Cheques had also been encashed after changing the date of issue and also the name/station, and all the Cheques had been encashed as bearer cheques and signature of the applicant on the backside of the cheques as bearer. The SBH Manager, Nalgonda, had confirmed that the cheques were paid to the bearer of the cheques i.e., the employee who was regularly deputed, vide letter No.F/dep/39, dated 23.09.2009.

10. The respondents have further submitted that Sri G.Narasimha Rao, Divisional Engineer (Admn.), O/o GMTD, Nalgonda, made a complaint to the Police authorities, Nalgonda, vide letter dated 06.08.2009 in regard to the fraudulent encashment of bearer’s cheques that had been encashed with the signature of the applicant on the backside of the cheques as bearer. Accordingly, the Police authorities filed a FIR No.171/2009, dated 06.08.2009 at Nalgonda PS against the applicant.

11. The respondents have further submitted that in connection with the fraudulent encashment of cheques, the competent authority issued a charge sheet under Rule 36 under BSNL CDA Rules, 2006 to the applicant, vide memorandum dated 23.05.2010, by giving 10 days time for submitting his explanation. The applicant denied all the charges levelled against him, vide his letter dated 01.06.2010. Subsequently, the Inquiry Officer and the Presenting Officer were appointed. The Inquiry Officer submitted his brief on 22.05.2011 that the charges are proved and a copy of same was served to the applicant on 01.06.2011 to make his representation, if any, by giving 15 days time. The applicant submitted his representation on the report of the Inquiry Officer to the Disciplinary Authority. The Disciplinary Authority on receiving the report of the Inquiry Officer and the defence brief submitted by the applicant, awarded a penalty of compulsory retirement on the applicant, vide order dated 16.07.2011. The respondents have further submitted that the Police authorities are filing an appeal against the judgment in CC.No.310/2012. The respondents have, therefore, prayed this Tribunal to dismiss the OA in the interest of justice.

12. The learned counsel for the Applicant has filed his written arguments on behalf of the Applicant.

13. We have heard the learned counsel on both sides and perused the material on record. We find that the applicant, who was engaged as a regular Mazdoor and posted in the cash counter of the respondents-Organization, is alleged to have tampered with the Cheques issued in favour of the Post Master from February 2008 onwards and on so many occasions misappropriated the funds to the tune of Rs.1.52,741/-. An FIR in Cr.No.171/2009 was registered on 06.08.2009. However, the Criminal Case No.310/2012, filed against the applicant on the very same offence in the Court of Special Judicial Magistrate of first Class (For Proh. & Excise Offences), Nalgonda, has ended in his acquittal, vide order dated 30.07.2016. However, the standard of evidence adduced in a criminal trial is far stringent compared to the standard of evidence relied upon in a departmental disciplinary proceedings.

14. The Hon’ble Supreme Court in a recent judgment in Karnataka Power Transmission Corpn. Ltd. v. C. Nagaraju and Another in Civil Appeal No. 7279 of 2019 (Arising out of SLP (C) No. 25909 of 2013), dated 16.09.2019, held as under:

“ It is settled law that the acquittal by a Criminal Court does not preclude a Departmental Inquiry against the delinquent officer. The Disciplinary Authority is not bound by the judgment of the Criminal Court if the evidence that is produced in the Departmental Inquiry is different from that produced during the criminal trial. The object of a Departmental Inquiry is to find out whether the delinquent is guilty of misconduct under the conduct rules for the purpose of determining whether he should be continued in service. The standard of proof in a Departmental Inquiry is not strictly based on the rules of evidence. The order of dismissal which is based on the evidence before the Inquiry Officer in the disciplinary proceedings, which is different from the evidence available to the Criminal Court, is justified and needed no interference by the High Court.”

The departmental disciplinary proceedings are being challenged by the applicant on the ground that the signatures contained in the encashed Cheques will have to be subjected to Audit by the Forensic Experts before concluding that he is the culprit in having encashed those cheques. We hold that clearly such grounds are not within the scope of the Disciplinary Authority in the departmental proceedings. We find that in the detailed inquiry report, the Inquiry Officer has held that the charges are proved and the Disciplinary Authority had carefully considered the inquiry officer’s report and imposed the penalty of compulsory retirement. While imposing such a penalty of compulsory retirement, the Disciplinary Authority has discussed the grounds raised by the applicant in his defence that the Inquiry Officer cannot establish the charges without getting applicant’s signature vouchsafed by forensic experts. The Inquiry Officer is not the competent authority to examine with assistance of experts and determine that the signature on the backside of the Cheques is not that of the applicant. The grounds taken by the Applicant that the misappropriated amount of Rs.1,52,741/- has been repaid to the department by the State Bank of Hyderabad, and therefore, the conclusion that the misappropriation has been caused only by the applicant is erroneous.

15. The scope of judicial review is only to see whether the procedures prescribed under the Rules are properly followed or not. We find that the applicant has actively participated in the inquiry proceedings, had access to Defense Assistant to present his case and ample opportunity was given and the principles of natural justice were followed before imposing the punishment of compulsory retirement. This Tribunal cannot substitute its judgment regarding the quantum of punishment, and therefore, in the light of lack of integrity demonstrated by the applicant in misappropriating an amount of Rs.1,52,741/- by forging the signature and making corrections in the Cheques and fraudulently encashing them, we hold that the punishment of compulsory retirement imposed on the applicant is fair and reasonable, and there is no ground for this Tribunal for interference with the penalty imposed by the respondents.

16. The OA is, therefore, dismissed being devoid of merits. There shall be no order as to costs.