Partly allowed

Gangesh Chakraborty v. Life Ins. Co. Ltd. and 2 Ors.

Tripura HC31 Oct 2017WP(C)/103/2012

Case brief

AI extract

What is this about?

Dismissal for alleged misappropriation was set aside because the disciplinary finding rested on an unproved police report and interrogation statement. The court ordered reinstatement with 50% back wages, directed reconsideration of pre-arrest absence after a hearing, and made relief subject to any appeal against acquittal.

What did the court decide?

Reinstatement within three months of submitting the order; 50% back wages from arrest to reinstatement; fresh decision on pre-arrest absence after hearing.

Gangesh Chakraborty Vs Life Ins. Co. Ltd. and 2 Ors. — Service and Employment | Tripura HC (2017)

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THE HIGH COURT OF TRIPURA AGARTALA

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WP(C) 103 of 2012

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Sri Gangesh Chakraborty S/o Gurukinkar Chakraborty of Ramthakur Lane, Durga Chowmohani, P.S. West Agartala, District-West Tripura.

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………… Petitioner

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Vs –

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Life Insurance Corporation of India A company registered under the Company Act, 1956 having its Divisional Office at Silchar, Meherpur, P.B. No. 54, P.O. Silchar, 788015, District-Cachar, Assam. (Represented by its Senior Divisional Manager, having his office at Silchar, Meherpur, P.B. No. 54, P.O. Silchar, 788015, District-Cachar, Assam).

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The Agartala Branch Office No. II The Life Insurance Corporation of India, represented by its Branch Manager having his office at LIC of India, Agartala, Branch No. II, T.P. Road, Agartala, P.O. Agartala, 799001, P.S. West Agartala, District-West Tripura.

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The Zonal Manager, The Life Insurance Corporation of India, Eastern Zonal Office, Hindustan Building, 4, Chittaranjan Avenue, Kolkata-700072, West Bengal.

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…….Respondents

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BEFORE

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THE HON’BLE MR. JUSTICE S. TALAPATRA

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For the petitioner : Mr. SM Chakraborty, Sr. Advocate Mr. S.D. Choudhury, Advocate For the respondents : Mr. Samarjit Bhattacharjee, Advocate Date of hearing : 08.06.2017 Date of delivery of judgment &order : 31.10.2017. Whether fit for reporting : Yes .

WP(C) 103 of 2012

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JUDGMENT AND ORDER

By means of this writ petition, the petitioner has challenged the inquiry report dated 22.01.2007 (Annexure P6 to the writ petition) so far it is concerned in respect of the finding that the petitioner was unauthorizedly absent during the period from 02.04.2002 to 01.02.2003. The petitioner has challenged the memorandum dated 12.07.2004 (AnenxureP1 to the writ petition) by which a departmental proceeding was initiated on the charge as detailed therein. The petitioner has also challenged the provisional order, contained in the notice dated 10.07.2007 (Anenxure-P8 to the writ petition) proposing the punishment and the order dated 25.08.2008 (Annexure-P16 to the writ petition) based on which the final order dated 28.08.2007 (Anenxure-P13 to the writ petition) has been passed. The petitioner has further challenged the order dated 27.07.2007 (Anenxure-P11 to the writ petition) by which the period before arrest on 02.03.2003 [i.e. w.e.f. 02.04.2002 to 01.02.2003] was treated, according to the petitioner, as dies non . The order dated 27.08.2007 (Annexure-P12 to the writ petition) has also been challenged by the petitioner as by that order it has been decided that the decision would be taken in respect of the period of suspension only after the outcome of the case as pending in the Court. Finally, the petitioner has urged this Court to allow the petitioner the service benefit for the period from 02.04.2002 to 01.02.2003 by regularizing the said period by admissible leave and treat the period of suspension as the period spent on duty or the further period of absence in the same manner.

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2. The petitioner was serving as the sub-staff. When he was posted at Agartala Branch-II, against him a departmental proceeding was drawn up for defalcating a huge amount of cash on various days. By the charge memo dated 12.07.2004 (Annexure-P1 to the writ petition) the

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petitioner was charged with the following misconduct:

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“That, you, as per office order No. ABO-2/OS dtd. 27-06-2001, were entrusted with the job of carrying the total amount of daily collection (both cash & cheque), made under six different cash book of the Agartala B.O-II, Silchar DO, from the LICI‟s Branch Office to the Indian Bank, Agartala Branch, and to deposit the same with the aforesaid Banker daily. In addition to the above job, you were also entrusted with some other allied works of the Accounts Deptt. of the aforesaid Branch Office as per the same office order as stated above.

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That you yourself, as a part of your official duty, used to receive daily the previous days total collection (both cash & cheque) as per the cash books and the „Daily Cash Balance Book (DCB) of the Agartala BO-II under Silchar DO along with the pay-in-slips, written by some other employees of that Branch Office, for depositing exactly the same accounts and the pay-in-slips with the Indian Bank, Agartala Branch, immediately. You, as a token of acknowledgement of receipt of the cash amounts, cheques and the pay-in-slips, also used to put your signature daily in the space provided in the „Daily Cash Balance(DCB) Book‟, as was evident from the available copies of the DCB.

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That, you, as usual, duly received the daily collection (both cash & cheque), as mentioned in the DVB & cash books, along with the relevant pay-in-slips pertaining to the dates, as shown beow, for further deposit of those same exactly with the Indian Bank, Agartala Branch. You deposited the cheque with the Indian Bank, Agartala Branch, exactly as per the payin-slips prepared by some other employee of LIC of India, Agartrala BO-II. But with an intention of defrauding the Corporation, you deposited along with the cheques as stated above, lesser amounts of cash, as shown below, than the amounts exactly received and acknowledged by you on those dates under question. You, in doing such deceitful job, submitted with the Banker the fake pay-in-slips for cash, prepared by yourself in your own handwriting as dispatch in GEQD, instead of the original pay-in-slips for cash that were usually prepared by some other employee of LIC of India, Agartla Branch BO-II, Silchar DO. You had thus, for your personal gain only, defrauded the Corporation the LIC of India and misappropriated its fund to the tune of Rs.33,00,000/- only.

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Sl. No.	Date	Amount taken for Lodgement	Actual amount deposited	Amount Misappropriated
1	13-03-02	Rs.15,70,233.00	Rs.10,70,233.00	Rs.5,00,000.00
2	14-03-02	Rs.10,31,840.00	Rs.05,31,840.20	Rs.5,00,000.00
3	15-03-02	Rs.08,13,271.00	Rs.04,13,271.10	Rs.4,00,000.00
4	16-03-02	Rs.08,83,694.00	Rs.05,83,694.90	Rs.3,00,000.00
5	18-03-02	Rs.04,63,546.00	Rs.03,63,546.70	Rs.1,00,000.00
6	19-03-02	Rs.10,88,461.00	Rs.06,88,461.90	Rs.4,00,000.00
7	20-03-02	Rs.07,17,558.00	Rs.04,17,558.70	Rs.3,00,000.00
8	21-03-02	Rs.07,16,269.00	Rs.06,16,269.00	Rs.1,00,000.00
9	22-03-02	Rs.06,07,049.00	Rs.04,07,049.00	Rs.2,00,000.00
10	23-03-02	Rs.07,79,729.00	Rs.06,79,729.50	Rs.1,00,000.00
11	29-03-02	Rs.12,71,302.00	Rs.08,31,302.00	Rs.4,00,000.00
	_Total _	*Rs.99,42,956.00*	*Rs.66,42,956.00*	*Rs.33,00,000.00*

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That, you, to hush up the documents, destroyed the copies of the DCBs and tampered pay-in-slips for cash, obviously showing the amount as per DCBs pertaining to the dates under question along with the copies of some earlier dates at your best opportune moment before leaving the office on 30-03-2002. You, thereafter, being aware of your fraudulent and

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heinous act, proceeded on a sanctioned casual leave on 01-04-2002 (3103-2002 being a Sunday) but remained absent from the office unauthorisedly till your arrest on 02-02-2003 by the Tripura Police on the charge of misappropriating an amount of Rs.33,00,000/- only of the Corporation the LIC of India.”

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3. It has been clearly stated in the charge that the petitioner failed to maintain absolute integrity and devotion to duty, displayed gross negligence in discharge of his duty and have acted in a manner prejudicial to good conduct and detrimental to the interest of the respondent-Corporation (Life Insurance Corporation of India), the LIC in short. Thus, he had violated the provisions of Regulation 21, 21 and 30(1) read with Regulation 39(1)(a) to (g) of the aforesaid staff regulations. The list of witnesses and documents were also annexed with the said charge sheet. The petitioner was asked either to admit or furnish the statement of denial and the list of witnesses and documents within a period of fortnight from the date of receipt.

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4. The petitioner by filing the reply to the charge sheet on 20.05.2004 (Anenxure-R2 to the writ petition) denied all the charges particularly, the charge of misappropriation of a sum of Rs.33,00,000/- and categorically stated that he had been framed maliciously and hence there was no violation of the Regulation 31(1) of the LIC Staff Regulations, 1960. The petitioner has also brought on record that against him another charge sheet had been filed in the criminal case under Section 409/411 IPC. Thus, the petitioner even though denied the charges, has urged the disciplinary authority not to compel him to disclose his defence in the departmental proceeding as that might cause prejudice to his defence in the criminal trial.

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5. As it appears, the departmental authority did not heed to such prayer and they entrusted the inquiry to the inquiry officer but it further appears that on the date of recording his statement on preliminary hearing on 03.11.2006 he was not present and a fresh date was fixed on 14.11.2006. The petitioner, as it appears from the records, did not participate in the proceedings. As a result, the Presenting Officer filed the written brief of his submissions in support of the charge as made and contended that from the statements of 04 (four) witnesses and the documents introduced in the proceeding it has been substantively proved that the petitioner was behind the misappropriation of a sum of Rs.33,00,000/- and he is solely responsible for the said illegal act and therefore, he should be punished appropriately.

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6. Thereafter, the inquiry report dated 22.01.2007 (Annexure-P6 to the writ petition) was submitted to the disciplinary authority, the Sr. Div. Manager, LICI, Silchar Division, Silchar observing inter alia, that after preliminary briefings the inquiry officer invited the attention of the CSE, Sri Gangesh Chakraborty and the Presenting Officer Sri M.A. Choudhury read out the charge. The presenting Officer, with the consent of the Enquiry Officer, read out the written statement prepared by him. After the reading out was over, the Enquiry Officer asked the CSE Sri Gangesh Chakraborty to come out with his comments, etc. without any reservation. The CSE replied that he would not comment nor would he express his mind as it might affect the criminal case that was pending. At that stage, the Enquiry Officer asked the Presenting Officer to proceed with the process of his presentation/submission, etc. Thereafter, the Presenting Officer made his presentation, with reference to the deposition and the witnesses.

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Having due regard to the presentation finally the Inquiry Officer has observed as under:

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“It has been argued that the CSE Sri Gangesh Chakraborty used to receive the Cash and Cheques for further lodgment with the Indian Bank, Agartala and on the relevant dates he had made less deposits of Cash, but in the absence of the copies of the CDBs, the amount received by the CSE could not be ascertained. Further, the copies of the set of collection books (as referred to by the Presenting Officer) submitted by the Presenting Officer as one of the exhibits (Exhibit-2) do not contain the cash collection figures of all the relevant dates, and thus the cash collection figures for some dates could not be verified by referring to the records relating to cash collections. Here it can be relevantly made mention of that out 9(nine) sheets of exhibit-2, only one sheet i.e. the 1st one seems to be a copy of LIC‟s own records but again some of the sheets do contain the figures of actual cash collection (as mentioned) of some of the relevant dates while containing the mentioned Bank Deposit (Cash lodgment) figures of all the relevant dates. In the circumstances, no clear-cut inference can be drawn that the CSE Sri G. Chakraborty had, for his personal gains, deposited less amounts of cash in the Bank. However, circumstantial evidences give pointed indications that the CSE Sri G. Chakraborty had, for his personal gains, misappropriated the moneys but in the absence of cash collection figures of all the relevant dates to be verified from convincing records., it can be said that the charge with regard to misappropriation of LIC‟s money could not be conclusively proved. I, therefore, say that the charge has not been proved.”

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[Emphasis added]

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7. Further, the Inquiry Officer held that despite the repeated communications made by the LICI, the petitioner did not resume duties nor could he justify his absence with distinguishable or tenable submission. It has been further observed that there was no intention also to resume duties as he remained absent from the office till his arrest on 02.02.2003 by the Tripura Police on the charge of misappropriation of an amount to the extent of Rs.33,00,000/- of the LICI. Against the said observation in respect of the unauthorized leave, the petitioner had raised protest on 09.11.2007 to the competent authority but without any yield.

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8. On 10.07.2002 by a show cause notice (Annexure-P8 to the writ petition) the petitioner was asked to submit his representation as to the finding of disagreement within a period of fortnight from the date of receipt of the said show cause notice dated 10.07.2007. In the said notice

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of disagreement, the listed documents, the final police report (Exhibit 25) was referred and relied on by the disciplinary authority arriving at the finding of guilt against the petitioner. It has been observed in the said notice as under:

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“(ii) As per Final Report of Police, Sri Gangesh Chakraborty was arrested by them on 02/02/2003 from Rajdhani Hotel, Agartala where he stayed with a false name as “Raja Goswami” and wore wig with a view to conceal his identity and evade police arrest. He was forwarded to Ld. Court on 03/02/2003 and brought him under Police Remand for ten days for interrogation. During interrogation Sri Gangesh Chakraborty stated/admitted that he misappropriated Rs.33,00,000 (Thirty Three Lakhs) only from LICI money by way of changing pay-in-slips by his own handwriting and deposited lesser amount of money with Bank on 11(eleven) occasions in the month of March, 2002 and left office on 30/03/2002 afternoon along with Original DCV (Daily Cash Balance Book) and counterfoils of pay-in-slips relating to said misappropriating to elope/destroy evidences. In the early morning on 01/04/2002 he left Agartala with misappropriated amount and documents and finally arrived in Kolkata via Gauhati after 3/4 days by road. During the journey he destroyed the DCV and pay-in-slips while staying in a hotel at Gauhati. He further stated that while he was staying in Kolkata he deposited a good protion of amount with different post offices out of Rs. 33 lakhs in his genuine name and in his fake name as Arindam Goswami.

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(iii) As per Final Police Report Sri Gangesh Chakraborty deposited a total amount of Rs.21,00,000/- in his own name and in the name of Arindam Goswami in the post offices in Kolkata in M.I. Scheme. They seized original application forms of opening of accounts in post offices containing the signatures and hand writing of the depositor named Gangesh Chakraborty and Arindam Goswami, the pay-in-slips in respect of deposition of lesser amounts with Indian Bank, Agartala and sent all those to GEQD, Kolkata, along with collected specimen and admitted signatures and hand writing of Sri Gangesh Chakraborty for examination & expert opinion. As per Expert Report of GEQD, Kolkata, the involvement of Sri Gangesh Chakraborty in misappropriation of Rs.33,00,000/- is beyond doubt which has specifically been mentioned in the Final Report of Police.

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(iv) The date wise cash collection of the Branch from 13/03/02 to 29/03/2002 for 11 (eleven) days were received by Sr Gangesh Chakraborty for lodgment and actual amount deposited by him with the Indian Bank, Agartala and also the misappropriated amount totaling to Rs.33,00,000/- by Sri Gangesh Chakraborty have specifically been mentioned in the Final Police Report.

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(v) On the date of Enquiry on 14/11/2006, Sri Gangesh Chakaborty did not express his mind to defend his case. During enquiry he told that I shall not make any comment as it might effect the criminal case that had been going on in the court of law in between the State of Tripura VS Gangesh Charkaborty and subsequently he denied to put his signature also in the recorded depositions without valid reasons from which it is clear that the CSE has nothing to say in his defense.

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(vi) As Sri M.Koloi, A.O., Agartala BO-I, the witness & the then AAO(PS) of Agartala BO-II when the misappropriation took place, has stated that Sri Gangesh Chakrabortty, Sub-Staff was entrusted with the job of lodgment of cash and cheques with the Bank and Sri Chakraborty himself misappropriated the amount of Rs.33,00,000/- by depositing less amounts after preparing fake pay-in-slips.

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(vii) Smt. Alo Rani Das, Assistant (F&A), Agartala BO-II, the witness who in reply to a question stated that she was aware of the misappropriation of Rs.33,00,000/- of rs.33,00,000/-. Further, she has stated that Shri Gangesh Chakraborty was in F&A Deptt who used to receive cash & cheques and then proceed for lodgment to Bank.

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(viii) The continuous unauthorized absence of Shri Gangesh Chakraborty from duty and staying out of Head Quarter gives sufficient & clear circumstantial evidences that the CSE was involved with the misappropriation of Rs.33,00,000/- only.

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Hence, the misappropriation of Rs.33,00,000/- (Rupees thirty Three Lakhs) only is proved and I, provisionally come to the conclusion that Shri Gangesh Chakraborty, the charge sheeted employee is guilty of the charges of misappropriation of Rs.33,00,000/- (Rupees thirty three Lakhs) only along with the charge so unauthorized absence up to 02/02/03 as mentioned in the charge sheet dated 12/07/2004.

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AND WHEREAS, having regard to the fact of the case and considering the gravity of the charges proved, I, being the Disciplinary Authority having power vested in me vide Regulation 39 of LIC of India (Staff) Regulations 1960 read with Schedule-I thereto, provisionally propose to impose upon Shri Gangesh Chakraborty, Sub-Staff, the penalty of dismissal in terms of Regulation 39(q)(g) and recovery of the loss of Rs.33,00,000/- (Rupees Thirty Three Lakhs) only in terms of Regulation 39 (1)(c) of LIC of India (Staff) Regulations, 1960;”

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9. The petitioner filed the representation against the said notice and submitted that the said police report was not brought in the evidence by the person who authored it. In the petitioner’s words: “But the gentleman who made it, was neither in the list of witnesses nor his purported report was produced and properly exhibited. It is an investigation report of another inquiry and was under the consideration of the Court of Law as well as sub-judice. It is very much unfair to come to a conclusion on the basis of that report for similar charge unless it is clearly proved and accepted subject to observing some other formalities. It is surprising that yet you have observed in your provisional order that this departmental proceeding was drawn up against me on the basis of the said report and you have come to a conclusion that on the basis of that sub-judice report, the impugned charge has been proved against me.” He has clearly stated that the note of difference is the outcome of non-application of mind. He has further submitted in his representation that rules of natural justice demand that the new evidence was not to be permitted or called for or any witness shall not be recalled to fill up any gap of evidence. The inquiry officer had blatantly violated that provision. The examination of the witnesses who were not in the list was ab initio

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unsustainable and the purported statement of such person cannot be taken into consideration for coming to a conclusion against him.

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10. However, the departmental authority did not give much attention on said representation and passed the final order dated 28.08.2007 confirming the proposed punishment of dismissal in terms of Regulation 39(q)(g) and directed recovery of the loss amounting to Rs.33,00,000/- in terms of Regulation 39(1)(c) of LICI (Staff) Regulations, 1960. The period of absence declared before his arrest and the absence after the arrest were declared respectively as dies non and to be determined after the final outcome of the criminal trial.

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11. The petitioner filed an appeal (Anenxure-P15 to the writ petition) to challenge the said order dated 28.08.2007. He had taken a specific objection which is as under:

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“10. That the said charge sheet contained a provisional list of documents which expressed as under:

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**** “A provisional list of documents by which and a provisional list of witnesses through whom the aforesaid charges are sought to be sustained are annexed (vide Annexure “A‟ and “B‟) to the Charge Sheet.”****

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But neither the opportunity to inspect the said documents has been given to me for preparing my defence nor the prosecution side produced any of the proposed documents in my presence during the course of inquiry so that those may be Marked EXHIBITS by the Inquiring Officer. As it is known to me, no document has been marked as EXHIBIT by the Inquiring Officer at all. It is well settled that even in the domestic inquiry, the Disciplinary Authority for disciplinary proceeding cannot rely upon documents not disclosed to party against which they proceeds.

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That it is pertinent to mention here that the Xerox copies of some documents whether listed or unlisted were supplied tome by the office of the Disciplinary Authority only after the findings of the formal inquiry was over and after the copy of the findings delivered to the CSE. It is presumable that the Disciplinary Authority were relying on such documents and taking into consideration behind the back of me which is very much arbitrary and denial of reasonable opportunity to defend myself.

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That the EO mentioned n his Findings that the CEO did not approached the EO to inspect the listed Documents. In this regard it is to mention here that it is the bounding duty of the EO in a domestic inquiry to direct the PO to extend fullest opportunity to inspect the listed documents. The EO neither fixed any programme nor issued order upon the PO for formal inspection. As such the CSE could not get any chance to do so. The requirement of any reasonably opportunity does not depend upon the CSE asking for it. It is a statutory protection that is afforded the CSE and a statutory obligation cast upon the prosecution side and it is for the prosecution side to discharge that obligation irrespective of whether the protection is claimed by CSE or not. Bombay High Court observed that if the Court hold that a reasonable opportunity was not given, the order of

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dismissal must be set aside and the Court cannot be influenced by the consideration that the dismissed servant did not ask for a reasonable opportunity. (Ref: State of Bombay vs. Gajanan Mahadeva Badley, AIR 1954 Bom.371).

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That the said Annexure „B‟ in the Charge memo contains names of 4 (four) Witnesses proposed to be examined during the course of formal inquiry which were as follows:

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Sri Ajit Kr. Das, Sr. Branch Manager, S.R. No. 330030, Agartala B.O.-I

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Smt. Alo Rani Das, Assistant, S.R. No.330366, A/cs deptt. Agartala B.O.-II

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Sri Joydeep Das, AAO, S.R. No. 344162, A/Cs deptt, Agartala B.O.-II

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Sri Jaganmoy Bhattacharjee, ABM(S), S.R.No.333010, Agartala B.O.-II

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But the Inquiry Officer at his own instance examined 3(three) witnesses from the outside of the list on 14.11.2006 without prior information to me which are as follows:

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Pranesh Ch. Paul, Branch Manager, LICI, ABO-II

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Sri. C.R. Chakraborty, B.M. (Sales), LICI ABO-II

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Madhab Kalai, A.O. Agartala Branch I

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That the Inquiry Officer did not even disclose the intention that he would cause to include new witnesses. I also did not get any further list of witnesses from the Disciplinary Authority. According to the rules, at least few clear days time has to be given to the delinquent intimating the name of the witness, but it appears that name of the purported witnesses was not supplied to me and as a result, my defence case has been affected badly. On 14.11.2006 I was present but I did not put my signature on the deposition of so called witnesses due to the aforesaid reason.”

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12. The said appeal was also dismissed on affirmance of the finding returned by the disciplinary authority by the order dated 28.08.2007. it has been held that the appellant [the petitioner] has not brought out any cogent ground warranting any modification in the order of dismissal from service and recovery of Rs.33,00,000.00 (Rupees thirty three lacs) as imposed by the Disciplinary Authority, which according to the appellate authority is commensurate with the gravity of misconduct for which he is found guilty.

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13. The petitioner has also enclosed the judgment and order dated 23.12.2015 delivered in GR 230 of 2002 by the Chief Judicial Magistrate, West Tripura, Agartala in respect of the same occurrence of misappropriation for which a written complaint dated 03.04.2012 filed to the Officer-in-Charge of the West Agartala Police Station. As already

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stated, the charge sheet was filed against the petitioner and finally by the said judgment and order dated 23.12.2015, the charge against the petitioner is held to have not proved beyond reasonable doubt. It has been observed in the said judgment, “….. in the present case the prosecution has failed to prove the ingredients of the offence punishable under either Section 471, or 468 or 411 or 409 of Indian Penal Code. It is also necessary to mention here that there is no material available against Gangesh Chakrabarty and/or Gourish Chakrabarty, to convict them under any penal provision of law on the basis of the material available on record in this case. The points for determination are determined in the negative” and on returning the said finding the petitioner was acquitted from the charge.

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14. By filing the reply, the LICI respondents, have submitted that the contention of the petitioner that no document was introduced or admitted by the investigating officer and for this reason those documents could not have been considered. However, it has been asserted that the petitioner was provided fair and sufficient opportunities to lay his defence in order to prove innocence against the charge. The petitioner, with deliberate intention, declined to avail the opportunities offered to him. From the conduct of the petitioner it transpires beyond any shred of doubt that the petitioner had pre-determined intention or design not to cooperate with the inquiry or disrupt the inquiry proceeding. According to the respondents, “…….. there was no bar on calling additional witnesses because the Annexure „B‟ to the Charge Sheet contained Provisional List of Witnesses. This exercise became urgent and necessary as the charge sheeted employee i.e. the Petitioner herein refused to present him own case and denied

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to inspect the documents and/or cross examine the prosecution witnesses in spite of repeated request. …….”

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15. The disciplinary authority in exercise of powers vested in it by Regulation 39 of the LICI (Staff) Regulations, 1960 provisionally proposed to impose a penalty of dismissal from service in terms of Regulation 39(1)(g) and recover the loss of Rs.33,00,000/- in terms of Regulation 39(1)(c) of LICI(Staff) Regulations, 1960. The petitioner though in the latter part of the inquiry had stated that he was not well to place his defence but it would be apparent from the inquiry report that the petitioner had developed the said defence even in the preliminary hearing where he had categorically stated that he would not participate in the proceeding in view of the pendency of the criminal trial against him on the same subject.

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16. The respondents have however denied that departmental proceeding was drawn up against the petitioner on the basis of the final report filed by the police. The disciplinary authority arrived at a final conclusion in the departmental proceeding on the basis of the said report. The respondent however have explained that, “the departmental proceeding was based on the inquiry, conducted by the Respondents and relevant materials. The final Police Report was considered along with other relevant documents/materials etc. and the Disciplinary Authority found the charges proved on basis of evidences adduced during Enquiry Proceedings, circumstantial evidence as also preponderance of probability.” The respondents have projected how the petitioner without having followed the procedure filed the application for leave one after another and those were rejected rightly. Thus the petitioner was held to have been on unauthorized

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absence and such absence was declared dies non and for the period after arrest there had been no decision by the competent authority. The competent authority however has decided to determine the said aspect after trial. No such decision has been placed before this Court till the date of judgment, even though the petitioner has been admittedly acquitted on culmination of the trial.

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17. Mr. SM Chakraborty, learned senior counsel appearing for the petitioner has succinctly submitted that the petitioner has been acquitted from the charge under Section 471/468/409 and 411 of IPC after a full fledged trial (vide GR 230 of 2009) by the Chief Judicial Magistrate, West Tripura, Agartala. He has highlighted the judgment to contend that it shows that there was no substance or evidence to convict the petitioner under Section 471/468/409 and 411 IPC but Mr. Chakraborty, learned senior counsel has fairly admitted that the said judgment was not available either before the inquiring authority or the disciplinary authority. But Mr. Chakraborty has lambasted the disciplinary authority by contending that the finding of difference is solely based on the final police report [the charge sheet filed by the police against the petitioner] on completing the investigation which commenced on the basis of a complaint filed by the respondent-Corporation.

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18. Mr. Chakraborty, learned senior counsel has further submitted that the consideration of the police report as the substantive evidence by itself has made the departmental proceeding vitiated for reasons as noted by this Court below:

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(i) the police officer who investigated and prepared the report to be submitted in the Court was not examined; and

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(ii) the final police report only stands for the facts that the investigating officer received the complaint and he investigated the matter on examination of the witnesses, collecting the documents and he has on the basis of those came to a prima facie observation that the petitioner has committed the said crime of misappropriation by criminal breach of trust. The said observation is prima facie and to be tested by in the trial. It provides the basis, no legally sustainable finding.

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19. From the other side, Mr. Samarjit Bhattacharjee, learned counsel appearing for the respondents has submitted that the copy of the final police report was submitted before the inquiry officer and the said inquiry report was admitted in the evidence. Therefore, now the petitioner cannot be allowed to raise any objection against that document which has been rightly considered by the disciplinary authority for arriving at a finding of difference by holding that the petitioner has committed misconduct by misappropriating a sum of Rs.33,00,000/- and rightly the petitioner has been dismissed from service as punishment with further direction to recover the said amount, which according to the Corporation-respondents has been defalcated by the petitioner.

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20. Having appreciated the entire process, through which the petitioner was held guilty of the misconduct as stated above, this Court is of the view that substantively the reasonable opportunities were given to the petitioner but the disciplinary authority while returning the finding of difference has relied on the final police report as the substantive piece of evidence when the report maker was not introduced as the witness. Even the investigating officer who authored that report was not examined. The inquiry officer on the basis of the available materials came to the

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conclusion that the charge against the petitioner so far it relates to misappropriation of a sum of Rs.33,00,000/- could not be proved and accordingly in the inquiry report, it has been held that so far the unauthorized absence is concerned the petitioner was absent without any sanction or permission from the competent authority and hence on the basis of the said observation the respondent had declared the said absence before the arrest of the petitioner as dies non whereas the period during the suspension or after arrest has not been decided as yet. It has been further observed that only after conclusion of the criminal trial or the case as pending in the court that aspect of the matter would be decided by the competent authority.

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21. Having thoroughly scrutinized the records as produced with the writ petition and the reply as well as the original records as produced before us by Mr. Samarjit Bhattacharjee, learned counsel for the respondents, this Court finds that the Life Insurance Corporation of India (Staff) Regulations, 1960 provides as under:

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“39.(1)……… (a)…. (b)…..

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(c) recovery from pay or such other amount as may be due to him of the whole or part of any pecuniary loss caused to the Corporation by negligence or breach or order;

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(d)…. (d)…. (f)…. (g) dismissal.”

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22. In the records as produced, this Court does not find copy of the police report which was admitted in the evidence but from the proceedings minutes it appears that the inquiry officer has concluded clearly that no clear cut inference can be drawn that the CSE Sri Gangesh Chakraborty had for his personal gain deposited less amount of

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cash in bank. Even if circumstantial evidences may indicate that CSE Sri Gangesh Chakraborty might have for his personal gains misappropriated the money, but no evidence of the cash collection figures of all the relevant dates could be verified from the record, and hence the inquiry officer has observed that it cannot be said that the charge with regard to the misappropriation of the LIC’s money had been conclusively proved.

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23. From the list of witnesses, which was attached to the charge sheet dated 12.07.2004, it appears that the investigating officer was not shown as the witness whereas in the list of documents the final police report dated 09.02.2004 has been catalogued as the document to be relied. From the note of the Divisional Manager dated 25.03.2003, which was not however admitted in the evidence, some important streaks into the real state of affairs are gathered. The petitioner was entrusted to carry the daily cash collections (cash and cheques) of the office on day to day basis and to lodge the same with the bank vide the office Order dated 27.06.2001. The bank statement up to 18.03.2002 was collected by him from the bank and submitted 2/3 days later to the office but that according to the disciplinary authority was found to be skillfully tempered. The Daily Cash Balance Book (DCBB) for the period from 10.03.2002 to 29.03.2002 [computer printed] and the counterfoil of the pay-in-slips from 01.03.2002 to 29.03.2002 [manually prepared] are also found missing from the office. Shri Gangesh Chakraborty was not available to meet any query in this regard as he had been absent from office since 01.04.2002 submitting an application for one day C.L. for 01.04.2002 on 30.03.2002 (Saturday). Under the above facts and circumstances as all the suspicion regarding the above fraud and misappropriation fell upon Shri Gangesh

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Chakraborty, a complaint (First Information Report) dated 03.04.2002 against him was lodged with the Officer In-Charge, West Agartala Police Station, Agartala, by the Sr. Branch Manager.

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24. A preliminary investigation was also carried out by one Mr. P.K. Das, Manager (F&A) having been entrusted by the disciplinary authority. On the basis of the said report, the charge sheet in the departmental proceeding as it appears was prepared. The bank statement was also not admitted by any bank officer to tally the same with the records maintained in the respondent’s office. Thus from the reading of the show cause it is abundantly clear that the final police report was entirely relied for giving the note of difference from the report of the inquiry officer, as stated.

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25. However, the deposition of the witnesses namely, Sri M. Koloi and Smt. Alo Rani Das were also referred. Sri M Koloi has stated that the petitioner was entrusted with the job of lodgment of cash and cheques with the Bank and he had misappropriated the amount of Rs.33,00,000/by depositing less amount after preparing fake pay-in-slips but pay-in-slips from the bank were not produced. Smt. Alo Rani Das strangely has submitted that she was aware of the misappropriation of Rs.33,00,000/but she did not implicate, the petitioner. However she had corroborated that the petitioner used to receive cash and cheques and proceed for lodging to the bank.

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26. Misappropriation is a well defined term in law. For purpose of holding someone guilty of misappropriation it has to be proved that someone was entrusted with the property, and he converted the said

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property to his own use in breach of trust or he had dominion over the property and had misappropriated the said property.

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27. First, the inquiry officer has clearly stated that he did not find any evidence to hold that the petitioner misappropriated the said amount of money nor the witnesses whom were relied in the notice of difference had clearly stated that it is the petitioner who had misappropriated the money and they had direct knowledge.

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28. Impression, in no manner constitutes evidence. The basic documents were withheld. As a result the disciplinary authority has relied on the final police report which cannot be treated as a substantive piece of evidence for mis-appropriation inasmuch as the opinion of the investigating officer is based on the materials which are not endorsed by the process of law as the evidentiary materials. The final police report is the result of the investigation on the basis of various materials. These materials by itself do not form the evidence. Those materials are to be proved and placed in the record of evidence following the procedure of law as laid down. In this case, the materials of the final police report was not disclosed or not even appreciated but only the opinion of the police officer has been relied and those are also not directly related to the misappropriation of the said sum. It is regarding the conduct. More strangely, the disciplinary authority has demonstrated total disregard to the fundamentals of law when he relied the interrogation output of the petitioner to the police officer. He has relied on the interrogation output completely ignoring the rudimentary principles that a statement to the police officer is inadmissible in law. Despite that the following part was substantively relied to hold the petitioner guilty of misappropriation:

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“During interrogation Sri Gangesh Chakraborty stated/admitted that he misappropriated Rs.33,00,000 (Thirty Three Lakhs) only from LICI money by way of changing pay-in-slips by his own handwriting and deposited lesser amount of money with Bank on 11 (eleven) occasions in the month of March 2002 and left office on 30/03/2002 afternoon along with Original DCB(Daily Cash Balance Book) and counterfoils of pay-in-slips relating to said misappropriation to elope/destroy evidences.”

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29. Thereafter, the police officer has stated how the petitioner escaped and destroyed the DCB, pay-in-slips while staying at a hotel in Gauhati. As already stated, the said police officer was not even examined in the inquiry. Thus, it has to be held that reliance on the said statement was grossly illegal and since that is the fundamental basis of returning the finding of guilt of the petitioner, the entire finding of difference is unsustainable.

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30. Having observed thus, the note of difference is interfered with and set aside. As a result, the consequential order of dismissal passed by the Sr. Divisional Manager (Disciplinary Authority) dated 28.08.2007 (Annexure-P13 to the writ petition) and the appellate order dated 25.08.2008 passed by the Zonal Manager, LICI (Appellate Authority) are quashed and set aside.

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31. The order declaring the absence from 02.04.2002 to 01.02.2003 as dies non is not sustainable as the petitioner was not given any opportunity to have his say and hence after giving the petitioner an opportunity to say why the action will not be taken against the petitioner for the said unauthorized absence before his arrest on 02.02.2003 the competent authorities shall pass a reasoned order. So far the period of absence from 02.02.2003 to the date of reinstatement, this Court is of the view that in the given context and having regard to the charge sheet filed by the police, the petitioner shall only be paid 50% of the back

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wages without any other financial benefit that might have accrued during the period as the circumstances indicates clearly lapse of the petitioner. Hence, that period shall be treated for all other purposes as on duty. The petitioner shall be reinstated within a period of three months from the day when the petitioner shall submit a copy of this order to the respondents.

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32. From the date of reinstatement, the arrears of pay and allowances shall be paid to the petitioner within six months. Be it noted that, during this period the respondents shall take decision on the absence of the petitioner from 02.04.2002 to 01.02.2003.

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33. It has not been informed to the Court whether the State or the complainant had carried out any appeal against the judgment and order dated 23.12.2015 delivered in GR 230/2002 by the Chief Judicial Magistrate, West Tripura, Agartala.

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34. This decision would be subject to the final outcome of that appeal, if any, inasmuch as the disciplinary authority will have a new cause to take appropriate decision about the service of the petitioner if the appellate court for any reason reversed the order of acquittal. But if no appeal has been or is preferred, the order has to be complied by the respondents in terms of the above.

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35. Having observed thus, this writ petition stands allowed to the extent as indicated above. There shall be no order as to costs.

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36. Return the records as produced by the LICI to Mr. Samarjit Bhattacharjee, learned counsel.

JUDGE

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lodh

Gangesh Chakraborty v. Life Ins. Co. Ltd. and 2 Ors.

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Gangesh Chakraborty v. Life Ins. Co. Ltd. and 2 Ors.

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