High Court · 2012

4. Case of the petitioner is that she is a Senior Assistant in the Assam Po lice establishment and presently posted in the office of Special Superintendent of Police(Border), Assam-Meghalaya Border Section, Jayanagar, Guwahati. On 20.1. 2010, a three member enquiry committee was constituted by the Superintendent of Police, Kamrup(Rural) (respondent No. 4) to scrutinize the traveling allowance ( TA) bills of police personnel of the District Executive Force (DEF) for the mont h of November, 2009. The committee submitted its report dated 17.3.2010 (Annexur e P/1 to the writ petition). The enquiry report disclosed misappropriation of fu nds by petitioner either by submitting false TA bills or false account numbers. It was stated that the total amount misappropriated by the petitioner can only b e ascertained after thorough investigation. The enquiry report suggested regist ration of a regular case and investigation thereof. 5. Respondent No. 4 thereafter, forwarded the enquiry report to the Superin tendent of Police, Kamrup, who in turn forwarded the same to the Officer-in-Char ge, Kamalpur Police Station with a request to treat the enquiry report as FIR an d for registration of a case. Thereafter, Kamalpur P.S Case No. 66/2010 under Se ctions 408/420/468/34 IPC was registered. By order dated 23.3.2010 issued by Inspector General of Police (A), Assa 6. m, petitioner was placed under suspension with immediate effect pending drawal o f departmental proceeding. Thereafter, the disciplinary authority that is the De puty Inspector General of Police (A), Assam issued show cause notice dated 16.7. 2010 to the petitioner to show cause under Rule 9 of the Assam Services (Discipl ine and Appeal) Rules, 1964 read with Article 311 of the Constitution of India a s to why any of the penalties prescribed in Rule 7 of the aforesaid Rules should not be imposed upon her on the charges mentioned therein.

7. In the meanwhile, petitioner and her husband were arrested on 11.11.2010 in connection with Kamalpur P.S. Case No. 66/2010. This Court by order dated 7. 12.2010 passed in Bail Application No. 5492/2010 directed release of the petitio ner and her husband on bail subject to the conditions mentioned therein. Consequ ently, the petitioner and her husband were released from custody. On 27.1.2011, petitioner submitted an application before the disciplinar 8. y authority requesting furnishing of certain documents mentioned in the statemen t of allegation enclosed with the show-cause notice to enable her to submit her written statement. She further prayed for extension of time for submission of wr itten statement and also to grant her personal hearing in the enquiry. 9. At that stage, petitioner moved this Court by filing the present writ pe tition with the prayer indicated above. This Court by order dated 29.4.2011 issu ed notice to the respondents and directed as an interim measure, suspension of t he enquiry conducted against the petitioner. Subsequently, this court by order d ated 23.8.2011 called for the original case record of Kamalpur P.S. Case No. 66/ 2010. 10. Respondent No. 4 has filed his counter affidavit. He has referred to the enquiry report and the registration of the police case against the petitioner. He has stated that on the prayer of the petitioner, she was informed by office l etter dated 23.5.2011 to intimate his office about a suitable date for inspectio n of documents. Respondent No. 4 has contended that criminal proceeding and depa rtmental proceeding though on the same set of charges, operate in different fiel ds and have different objectives. Referring to Government of Assam office memora ndum No. ABP.18/2004/2 dated 19.4.2004, respondent No. 4 has contended that depa rtmental proceedings should be completed expeditiously. 11. Mrs. J.M. Konwar, learned counsel for the petitioner submits that a bare perusal of the FIR and the show-cause notice would show that the charges are id entical and there is no difference between the two. In such circumstances, the d epartmental proceeding should be kept in abeyance till conclusion of the crimina l trial as otherwise petitioner would be prejudiced in the criminal trial. Learn ed Govt. Advocate on the other hand submits that there is no bar under the law t o simultaneously proceed with the departmental enquiry as well as the criminal t rial. Question of prejudice does not arise as the nature and objective of both t he proceedings are different. 12. 13. cords of Kamalpur P.S. Case No. 66/2010. 14. The submissions made have been considered. The Court has also perused the pleadings of the rival parties and the re The law of the subject, namely, simultaneous continuance of departmental enquiry with criminal proceeding has more or less been settled by the Hon’ble S upreme Court. In the case of Capt. M. Paul Anthony -Versus- Bharat Gol d Mines Ltd. and Another reported in (1999) 3 SCC 679, the Apex Court after disc ussing various previous judgments, was of the view that there is a consensus of judicial opinion on the basic principle that proceedings in a criminal case and the departmental proceedings can proceed simultaneously with a little exception. Proceedings in a criminal case and the departmental proceedings operate in dist inct and different jurisdictional areas. Whereas in the departmental proceedings , the factors operating in the mind of the disciplinary authority may be varied, such as, enforcement of discipline, level of integrity of the delinquent, desir ability or otherwise of retaining such person in service etc., while in a crimin al case, the objective is to find out the guilt of the accused that is whether t he accused had committed the offence or not and consequential imposition of puni shment. Therefore, the standard of proof in the two proceedings are also differe nt. While in the departmental proceedings, the standard of proof is one of prepo nderance of the probabilities, whereas in a criminal case, the charge has to be proved by the prosecution beyond all reasonable doubt. The little exception refe rred to by the Hon’ble Supreme Court may be a case where the departmental procee dings and the criminal trial are based on the same set of facts and the evidence in both the proceedings is common without there being a variance. The Hon’ble S upreme Court summed up the law as under:- (cid:28)22. The conclusions which are deducible from various decisions of this Court re ferred to above are: Departmental proceedings and proceedings in a criminal case can proceed (i) simultaneously as there is no bar in their being conducted simultaneously, thoug h separately. (ii) If the departmental proceedings and the criminal case are based on ident ical and similar set of facts and the charge in the criminal case against the de linquent employee is of a grave nature which involves complicated questions of l aw and fact, it would be desirable to stay the departmental proceedings till the conclusion of the criminal case. Whether the nature of a charge in a criminal case is grave and whether c (iii) omplicated questions of fact and law are involved in that case, will depend upon the nature of offence, the nature of the case launched against the employee on the basis of evidence and material collected against him during investigation or as reflected in the charge-sheet. (iv) The factors mentioned at (ii) and (iii) above cannot be considered in is olation to stay the departmental proceedings but due regard has to be given to t he fact that the departmental proceedings cannot be unduly delayed. If the criminal case does not proceed or its disposal is being unduly de (v) layed, the departmental proceedings, even if they were stayed on account of the pendency of the criminal case, can be resumed and proceeded with so as to conclu de them at an early date, so that if the employee is found not guilty his honour may be vindicated and in case he is found guilty, the administration may get ri d of him at the earliest. (cid:29) Having noticed the law laid down by the Apex Court, the case of the peti 15. tioner may now be considered. For better appreciation, the FIR dated 18.3.2010 a nd the departmental show cause notice dated 16.7.2010 are reproduced hereunder:- (cid:28)To F I R Officer-in-Charge, Kamalpur P.S. I am sending herewith enquiry report submitted by Sri Harekrishna Nath, APS, Addl. Superintendent of Police(HQ), Kamrup regarding fraudulence and misapp ropriation withdrawal of T.A. Bills of Police Personnel of Kamrup DEF. Please treat the enquiry report as FIR and registered a case under prope r section of law and ensure prompt and proper investigation. Enclo: As stated above. Superintendent of Police, Kamrup, Amingaon. To Sir, The Superintendent of Police, Kamrup, Amingaon. Sub : Enquiry Report. While checking the said Account Nos. it was found that the Bill amount w In compliance to your Order vide Memo No. KP/CB/10/18, dated 20.01.2010, I alongwith the other members of the board constituted by you scrutinized the T .A. Bills of Police personnel of the DEF for the month of November, 2009 and fou nd the following anomalies- 1. The Bill amounting to Rs. 34,000/- was signed by Shri Debajit Hazarika, APS, the former Superintendent of Police, Kamrup on 16.11.2009 (hereinafter term ed as Bill No. 1). The same bill was again put up before your Honour for signatu re with malafide intention by Sr. Asstt. Smt. Jaya Hazarika and obtained your si gnature dated 14.12.2009 (hereinafter termed as Bill No. 2) because of which the fraudulent act was detected. While comparing both the Bills, it was found that the names of the persons and the amount to be credited against them were the sam e in both the Bills but the Account Nos. shown against their names were differen t in both the Bills. 2. as credited to some persons who are not employees of this DEF. 3. On scrutiny it was found that in both the Bills, viz, Bill No. 1 and Bil l No. 2 were the same Bills but in Serial No. 1,2,12 and 14 in Bill No. 2 the sa me Account No. was put, i.e., 30636171801. On verification it was found that the name of the Account holder is Dipak Das it is confidentially learnt that Dipak Das is the husband of Sr. Asstt. Smt. Jaya Hazarika, who is not an employee of K amrup DEF. 4. In Serial No. 3 and 15 of Bill No. 2 the Account No. was changed to 1082 1861848. On verification it was found that the Account belongs to Sr. Asstt. Smt . Jaya Hazarika. 5. On scrutiny and comparison of Bill No. 1 and Bill No. 2, it was found th at the Bill No. 1 was not sent to the Bank for crediting the amount to the polic e personnel on their personal Bank Accounts but Bill No. 2 was sent to the Bank for crediting the amount to the force personnel in their personal Bank Account w hich was sent back by the Bank after detecting anomalies in the Bill. 6. e Accounts Nos. of her husband and herself (Copy enclosed). 7. From scrutiny of the statements of Account No. 30636171801 of Dipak Das, furnished by the State Bank of India, Six Mile Branch it was found that the tot al amount of Rs. 36,302/- was credited to Shri Dipak Das on different dates sinc e 07.03.2009. In another two bills similar fraudulent attempts were made by putting th From the above, it can be construed that Sr. Asstt. Smt. Jaya Hazarika h as siphoned out a huge amount to the tune of several lakhs fraudulently by submi tting either false T.A Bills or false Account Nos. Further, it is to be informed that the bank statement of 10821861848 of Sr. Asstt. Smt. Jaya Hazarika is yet to be received from the State Bank of India. The total amount misappropriated by Sr. Asstt. Smt. Jaya Hazarika can be ascertained only after thorough investigat ion. In view of the above, the board has opined that a regular case may be re gistered in this connection and investigated into. Submitted for favour of your kind perusal. Received and registered KPR.P.S. Case No. 66/2010 under Section 408/420/ Yours faithfully Sd/-Harekrishna Nath, APS, Addl. Supdt. of Police, HQ Kamrup, Amingaon. 468/34 IPC. Show-cause Notice Sd/- A. Ali., S.I. O/C KPR, P.S., Dated:18.03.2010 (cid:29) (cid:28)Memo No.Proc.Cell/XXVII/II/2010/51 Dated:16.07.2010 To Smt. Jaya Hazarika, Senior Assistant (U/S), Office of the Special Superintendent of Police, Assam Meghalaya Border Sector, Jayanagar, Assam, Guwahati. Sub : 1st Show Cause Notice. You are hereby required to show cause under Rule 9 of Assam Services (Di scipline & Appeal) Rules, 1964 read with Article 311 of the Constitution of Indi a as to why any of the penalties prescribed in Rule 7 of the aforesaid rule shou ld not be inflicted upon you on the following charges based on the statement of allegation attached herewith. That wile you were serving as a Sr. Assistant in the office of the Super intendent of Police, Kamrup, Amingaon some serious financial anomalies were dete cted in the Bills of the Police personnel of Kamrup DEF for the month of Novembe r, 2009 which were prepared by you. A three member enquiry committee headed by t he Additional Superintendent of Police (HQ), Kamrup, Amingaon was constituted to enquire into the irregularities and the committee detected financial anomalies in the T.A. Bills. Details of the anomalies committed by you are as under:

1. One Bill amounting to Rs. 34,000/- was signed by Shri Debajit Hazarika, APS, the former Superintendent of Police, Kamrup on 16.11.2009 (hereinafter term ed as Bill No. 1). The same bill was again put up before the present Superintend ent of Police, Kamrup, Amingaon for signature with malafide intention for obtain ing his signature on 14.12.2009 (hereinafter termed as Bill No. 2), while compar ing both the bills, it was found that the names of the persons and the amount to be credited against them were the same in both the bills but the account Nos., shown and their names were different in both the bills.

2. who are not the employees of this DEF. Further, it was found that the bill amount was credited to some persons

3. On scrutiny it was found that in both the Bills, i.e., Bill No. 1 and Bi ll No. 2 were same bills but in Serial No. 1,2,12 and 14 in Bill No. 2, the same Account No. was put, i.e., 30636171801 against different names. On verification it was found that the name of Account holder is Shri Dipak Das. It is learnt th at Shri Dipak Das is your husband who is not an employee of Kamrup DEF.

4. 1861848 and on verification it was found that the Account is in your name. In Serial No. 3 and 15 of Bill No. 2 the Account No. was changed to 1082

5. On Scrutiny and comparison of Bill No. 1 and Bill No. 2, it was found th at the Bill No. 1 was not sent to the Bank for crediting the amounts to the Poli ce personnel on their personal Bank Accounts but instead Bill No. 2 was sent to the Bank for crediting the amount to the force personnel in their personal Bank Account which was later sent back by the Bank after detecting anomalies in the B ill.

6. In another 2(Two) Bills similar fraudulent attempts were made by putting your Account No and your husbands Account No.

7. From scrutiny of the statements of balance sheets in respect of Account No. 30636171801 of Shri Dipak Das, furnished by the State Bank of India, Six Mil e Branch, it was found that the total amount of Rs. 36,302/- was credited to Shr i Dipak Das as T.A. on different dates since 07.03.2009. In this connection a Criminal Case against you has also been registered vide Kamalpur P.S. Case No. 66/10, U/S 408/420/468/34 IPC and investigation is o n. Your above act of fraudulence and misappropriation is tantamount to gros s misconduct. You are, therefore, charged of gross misconduct and dereliction of duty. You should submit your written statement in defence within 10 (Ten) days from the date of receipt of this communication provided you do not intend to in spect those documents which have relevance with the issue under enquiry. In case you intend to inspect the documents, you should write to the undersigned for th e same within 7(Seven) days from the date of receipt of this communication and s ubmit your explanation within 10 (Ten) days from the date of completion of the i nspection. Your written statement whether you desire to be heard in person should b e indicated to the undersigned within the period specified above. Sd/- Illegible Deputy Inspector General of Police(A), Assam, Guwahati. (cid:29)

16. Though the contents of the FIR and the departmental show cause notice ar e identical, the fact remains that the criminal case is yet to take off as inves tigation is not yet complete. Petitioner has herself stated in paragraph 16 of t he writ petition that in the criminal case, charge sheet is yet to be submitted against the petitioner. When the charge sheet has not yet been filed, no presump tion can be drawn as to what would be the contents of the charge sheet and as to whether criminal trial will be set in motion against the petitioner or not. The refore, question of coming to any conclusion that the departmental proceeding an d the criminal trial are based on the same set of facts and that the evidence in both the proceedings is common without there being a variance, does not arise a t this stage. Learned counsel for the petitioner has also not been able to show what complicated questions of law and fact are involved in the case to warrant s tay of the departmental proceeding till conclusion of the criminal case. In such circumstances, this Court finds no good ground to issue the dire 17. ction as sought for by the petitioner. Writ petition is found to be devoid of me rit and is accordingly dismissed. Interim order passed on 29.4.2011 stands vacat ed. 18. Notwithstanding dismissal of the writ petition, this Court would like to observe that since the petitioner is under suspension for more than two and hal f years now, respondents may consider either to conclude the departmental procee ding drawn up against the petitioner at an early date or to reinstate the petiti oner in service without prejudice to the departmental proceeding.