Senior Superintendent of Posts, Thiruvananthapuram North Division & Others v. M/S Mary Elizabeth

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** ## **THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN** **& THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN** **FRIDAY, THE 18TH JUNE 2010 / 28TH JYAISTHA 1932** **WP(C).No. 25259 of 2008(S)** **---------------------------------------** **OA.655/2007 of CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH** **....................** ## **PETITIONER(S):** **-----------------------** **1. SENIOR SUPERINTENDENT OF POSTS, THIRUVANANTHAPURAM NORTH DIVISION, THIRUVANATHAPURAM- 695 001.** **2. SRI. B. PADMAKUMAR, ASSISTANT SUPERINTENDENT OF POSTS, THIRUVANATHAPURAM NORTH DIVISION.** **3. THE DIRECTOR OF POSTAL SERVICES (HQ) KERALA CIRCLE, THIRUVANANTHAPURAM- 695 033.** **4. THE CHIEF POSTMASTER GENERAL, KERALA CIRCLE, THIRUVANANTHAPURAM- 695 033.** **5. UNION OF INDIA, REPRESENTED BY ITS SECRETARY GOVERNMENT OF INDIA, MINISTRY OF COMMUNICATIONS, DEPARTMENT OF POSTS, NEW DELHI.** **BY ADV. SRI.S.KRISHNAMOORTHY, CGC.** ## **RESPONDENT(S):** **--------------------------** **M/S. MARY ELIZABETH, W/O L.ANTONY FERNANDES WORKING AS POSTAL ASSISTANT (BCR) ATTINGAL H.O., RESIDING AT “JAX VILLA” HOUSE NO. 27, SWATHY NAGAR, KAZHAKOOTAM, THIRUVANANTHAPURAM DISTRICT.** **BY ADV. SRI.M.A.SHAFIK.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18/06/2010, ALONG WITH WPC NO. 20896 OF 2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C) NO. 25259/2008-S** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXT.P1: COPY OF THE O.A. NO.655/2007 FILED BY THE RESPONDENT ALONG WITH ITS ANNEXURE.** **EXT.P2: COPY OF THE REPLY STATEMENT DATED 22/11/2007.** **EXT.P3: COPY OF THE IMPUGNED ORDER DATED 05/03/2008 IN O.A. NO.655 OF 2007.** ## **RESPONDENT'S EXHIBITS: NIL** **//TRUE COPY//** ## **P.A. TO JUDGE** **rs.** ## **THOTTATHIL B.RADHAKRISHNAN & S.S.SATHEESACHANDRAN, JJ.** ------------------------------------------W.P.(C).Nos.25259 OF 2008 & 20896 OF 2009 ------------------------------------------Dated this the 18[th] day of June, 2010 ## **JUDGMENT** ## Thottathil B.Radhakrishnan, J. 1.The respondent in these matters, while working as Postmaster, was allegedly involved in causing loss of funds to members of the public by premature closure of R.D. Accounts and also by making short payments of amounts due to the depositors. At the outset, we state that the skeletal facts are being mentioned here only to take us to the conclusion that we would arrive at, and not to give the seal of approval of this Court, in any manner, either to the allegations or to the defence of the respondent. - 2.Disciplinary proceedings were initiated against the respondent. Proceedings were also initiated for recovery of funds that were allegedly payable to the depositors. Also, WPC.25259/08 & 20896/09. 2 there is a criminal case against the respondent which now stands registered as C.C.No.619/07 on the files of the Judicial Magistrate of the First Class, Attingal, alleging commission of offences punishable under Section 409 IPC. - 3.With the aforesaid facts, the Central Administrative Tribunal has ordered that in anticipation of the conclusion of the proceedings pending before the criminal court, disciplinary proceedings and the departmental proceedings for recovery of money from the officer should stand deferred for a period of three years or actual conclusion of trial before the criminal court, whichever is earlier. This direction is under challenge at the instance of the establishment. - 4.Let us, for the sake of consideration of this case, assume that the criminal case, the departmental proceedings for recovery and the disciplinary proceedings are on the same set of facts and allegations and that the delinquent respondent has WPC.25259/08 & 20896/09. 3 apparently the same defence in all the three matters. She has also a case that she had only a supervisory role in the Post Office and one Maniyan, a Assistant, was immediately dealing with the transactions across the counter. With these facts, we do not find any contradiction that could be had in proceedings by the establishment in exercise of its disciplinary authority and the prosecution of the criminal case against the respondent. We refer to the judgments of the Apex Court in **Kendriya Vidyalaya Sangathan** v. **T.Srinivas** [2004(3) KLT 719 (SC)] and in **Capt.M.Paul Anthony** v. **Bharat Gold Mines Ltd.** [1999 SCC (L & S) 810] and notice that there is consensus of judicial opinion on the basic principle that proceedings in a criminal case and departmental proceedings can go on simultaneously. However, the Apex Court noticed that certain exceptions have been carved out to that basic principle. It was noticed that while the departmental proceedings and the proceedings in the criminal case can proceed simultaneously, there is no WPC.25259/08 & 20896/09. 4 bar in their being conducted simultaneously, though separately. If the departmental proceedings and criminal case are based on identical and similar set of facts and the charge in the criminal case against the employee is of a grave nature which involves complicated questions of law and fact, it is desirable to stay the departmental proceedings till conclusion of the criminal case. The question whether the nature of charges in the criminal case is grave and whether complicated questions of facts are involved would depend upon the nature of the offence and the nature of the case registered against the employee on the basis of facts and materials available against that person following the investigation or as are reflected by the chargesheet. However, the aforesaid factors which may tend to indicate that the disciplinary proceedings would have to be held back cannot be treated in isolation to stay the departmental proceedings. Due regard has to be given to the fact that departmental proceedings cannot be unduly delayed. If the WPC.25259/08 & 20896/09. 5 criminal case does not proceed or its conclusion is unduly delayed, the department proceedings, even if they are stayed on account of pendency of criminal case, can be resumed and proceeded with so as to conclude it at an earlier date. 5.In **Capt.M.Paul Anthony** referred to by the learned Tribunal in the impugned order and in **Ajit Kumar Nag** v. **G.M.(PJ), Indian Oil Corporation Ltd.** [2005 (7) SCC 764], the Apex Court was concerned with cases where the criminal case had ended. In **Kendriya Vidyalaya Sangathan,** the Apex Court held that the advisability, desirability or propriety, as the case may be, in regard to a departmental enquiry has to be determined in each case taking into consideration all facts and circumstances. The decision of the Apex Court in **State of Rajasthan** v. **B.K.Meena** [(1996) 6 SCC 417] was noticed to state that stay of departmental proceedings cannot be and should not be a matter of course. WPC.25259/08 & 20896/09. 6 6.Adverting to the facts of the case in hand, as rightly pointed out by the learned counsel for the respondent, while the Tribunal stayed the disciplinary proceedings for three years, the criminal case has reached nowhere though 2 ½ years have already gone through. The trial of the case is only at the stage of framing charge and issuance of summons to witnesses from the criminal court. As of now, the case stands posted to 18.9.2010 for the appearance of witnesses. With this, we would notice that the allegations before the criminal court are being proceeded only on count that there is criminal breach of trust by the respondent and such breach of trust is punishable under Section 409 IPC. The quality of the disciplinary proceedings that would be had against her by the establishment and the need of the Postal Department to sustain its credibility as a public utility service would necessarily get primacy over the entitlement of the respondent to preserve for herself the defence that may be available. On the facts, we are of the firm view that this is WPC.25259/08 & 20896/09. 7 not a case where it would be wholly against the interest of the delinquent, if the disciplinary proceedings are permitted to continue even before the conclusion of the trial and disposal of the criminal case. The quality of enquiry that would be had at the hands of the establishment through the statutory procedure and proceedings regulated by executive instructions are not criminal proceedings and the entitlement of the employer to proceed against the employee on counts of indiscipline cannot be mixed up or pushed off on the premise of the pendency of a criminal case. For the aforesaid reasons, we vacate the impugned orders of the Tribunal and direct that the disciplinary proceedings against the respondent can be continued and carried to its logical end in accordance with law, however that, the proceedings for recovery initiated against her, though could be carried on, would be concluded only along with or after the conclusion of the disciplinary proceedings. The WPC.25259/08 & 20896/09. 8 delinquent will be given appropriate opportunity to place her case in terms of the laws. We reiterate that this judgment does not, in any manner, commend on the quality of the charges against the delinquent or the sustainability of her defence. The writ petitions are ordered accordingly. No costs. Sd/THOTTATHIL B.RADHAKRISHNAN, Judge. Sd/S.S.SATHEESACHANDRAN, Judge. kkb.28/06.