Sohan Raj Surana v. State of Rajasthan — 1997 DIGILAW 565 (RAJ)

Honble YADAV, J.–The petitioner by way of filing the present writ petition initially questions the validity and legality of the suspension order dated 25.7.69 Ex.P/1 and subsequently by way of amended writ petition, he questions the validity and legality of the impugned order of dismissal from service dated 25.7.89 Ex.P/14 to the writ petition on the ground, inter alia, that once he was proceeded on the same charges in a criminal offence before a competent court of law and was acquitted on the premises that the prosecution has failed to prove charges then thereafter the disciplinary authority cannot be allowed to dismiss him on the same set of circumstances on the same evidence which has been disbelieved by a competent court of law. It is also averred in the writ petition that enquiry report and order of dismissal in his case is based on no evidence. It is also averred in the writ petition that the deceased-petitioner was not afforded reasonable opportunity of hearing and as such the principles of natural justice have been violated in dismissing him from service. (2). It is admitted by the learned counsel for the parties that the deceased-pe- titioner had already retired after attaining the age of superannuation while dismissal order was passed. The petitioner expired during pendency of the present writ petition and he is represented by his legal representatives. (3). Brief facts necessary for disposal of the present writ petition are that the petitioner was appointed and confirmed on the post of Patwari in the year 1955 with retrospective effect i.e. from the date of his appointment. The deceased-petitioner was placed under suspension in connection with the alleged embezzlement of Government money and gross negligence in discharging his duties on 25.7.69, a copy whereof is filed herewith and marked as Ex.P/1 to the writ petition. The challan papers against the deceased-petitioner was also filed for the offence under Sec. 409, IPC in the court of law after investigation on 29.4.71 Ex.P/12 to the writ petition. The charge-sheet was issued after expiry of three years from the date of suspension on 4.5.72 Ex.P/8 to the writ petition. A representation was submitted by the deceased-petitioner in response to the charge-sheet Ex.P/8 that he may be allowed to inspect the record mentioned in the representation but he was not allo- wed to do so. (4). The charge-sheet was issued after expiry of three years from the date of suspension on 4.5.72 Ex.P/8 to the writ petition. A representation was submitted by the deceased-petitioner in response to the charge-sheet Ex.P/8 that he may be allowed to inspect the record mentioned in the representation but he was not allo- wed to do so. (4). The enquiry report was submitted by the Enquiry Officer, which was ex parte without giving any opportunity of hearing to the deceased-petitioner and without being supplied copies of the documents or allowing inspection thereof though prayed by him. It was mentioned in the enquiry report that due to non-availa- bility of record, the charges against the deceased-petitioner could not be proved but despite of this, it was found that he was guilty for the alleged charges as he failed to substantiate his defence. The enquiry report submitted by the enquiry officer is on record, wherein, at page 51, it is mentioned that the deceased-petitioner cannot be given benefit of committing embezzlement of record. (5). Thereafter the Collector, Jodhpur issued a notice under Article 311(2) of the Constitution of India along with enquiry report submitted by the enquiry officer asking the deceased- petitioner to show cause why he should not be dismissed from service. A copy of the show cause notice dated 2.2.80 is filed and marked as Ex.P/10 to the writ petition. (6). The deceased-petitioner submitted a reply to the notice to show cause dated 8.2.80 Ex.P/10 to the writ petition refuting the charges levelled against him. It is relevant to mention here that in pursuance of the aforesaid enquiry report and show cause notice, no action was taken against the petitioner about 9 years till he already attained the age of superannuation. (7). It is apparent from the averments made in the writ petition that a new charge-sheet was issued against the deceased- petitioner for embezzlement of Government record vide order dated 4.7.81 Ex.P/11 to the writ petition. The deceased-petitioner submitted a detailed reply on 2.9.81 wherein he refuted the allegation that he embezzled the Government record. A copy of the reply dated 2.9.81 is filed and marked as Ex.P/5 to the writ petition. The deceased-petitioner made a representation on 31.7.87 for allowing him to inspect the record to file a detailed reply to the charge-sheet. The deceased-petitioner submitted a detailed reply on 2.9.81 wherein he refuted the allegation that he embezzled the Government record. A copy of the reply dated 2.9.81 is filed and marked as Ex.P/5 to the writ petition. The deceased-petitioner made a representation on 31.7.87 for allowing him to inspect the record to file a detailed reply to the charge-sheet. A copy of the representation dated 31.7.87 is filed and marked as Ex.P/7 to the writ petition. (8). A letter was issued from the office of the disciplinary authority wherein the deceased-petitioner was informed that he shall retire after attaining the age of superannuation on 31.7.88, therefore, the enquiry against him is to be completed within three months. A copy of the letter dated 13.1.88 is filed and marked as Ex.P/13 to the writ petition. Ultimately on the basis of the enquiry report submitted by the enquiry officer, a punishment of forfeiture of the services of the deceased- petitioner from 25.7.69 to 31.7.88 was imposed. This period was not treated as pensionable service period and the amount of Rs. 1890.69 was ordered to be recovered from him. Further in the endorsement No.1, the Sub-Divisional Officer was directed to conduct the enquiry against the deceased-petitioner regarding the charges relating to embezzlement of Government record by him. (9). It is brought to my notice by placing the order dated 30.1.96 on record by the legal representatives of deceased- petitioner that the enquiry relating to embezzlement of Government record has been dropped by the Punishing Authority. (10). After service of notice, a joint reply was filed on behalf of the respondents denying the averments made in the writ petition while reiterating the allegations made in the charge- sheet. In the reply filed on behalf of the respondents, it is stated that the order of dismissal from service of the deceased- petitioner passed by the disciplinary authority is legal and valid and it does not require interference of this Court. In the additional reply, it is stated that second enquiry about embezzlement of Government record has been dropped. (11). I have heard learned counsel for the parties and perused the materials available on record. (12). A close scrutiny of the order impugned dismissing the deceased-petitioner from service vide Ex.P/14 reveals that it is non-speaking order. No findings with regard to the allegation levelled against the deceased-petitioner have been re- corded. (11). I have heard learned counsel for the parties and perused the materials available on record. (12). A close scrutiny of the order impugned dismissing the deceased-petitioner from service vide Ex.P/14 reveals that it is non-speaking order. No findings with regard to the allegation levelled against the deceased-petitioner have been re- corded. The aforesaid impugned order further indicates that it is held by the disciplinary authority that in support of the allegation made against the deceased-petitioner, he was utterly failed to prove the allegation and defence made by him. Suffice it to say in this regard that as a matter of fact, it was duty on the part of the administration to bear this burden and prove that the record was shown to the peti- tioner as well as to the effect that actually he has embezzled the government record. Further in the impugned order, it is stated that on the basis of record, the case of embezzlement is made out against the deceased-petitioner whereas Ex.P/15 dated 29.8.89 and the order dated 30.1.96 and reply to the amended writ petition filed by the State Government, it has been stated that the enquiry regarding embezzlement of Government record has been dropped vide order dated 30.1.96 passed by the disciplinary authority. (13). The aforesaid facts and circumstances of the case stated above, lead me to conclude that the impugned order of dismissal from service of the deceased-petitioner vide Ex.P/14 has been passed without application of mind. In such cases, the reasons given by the disciplinary authority in support of his conclusions are always taken to be sure indicator about application of mind by an authority but in the present case, contradictory reasons are given by the punishing authority which cannot be re-conciled by any stretch of imagination. Hence, the court has no alternative except to believe that the impugned order of dismissal from service of the deceased-petitioner vide Ex.P/14 has been passed without application of mind to the facts of the case. (14). There is yet another reason to arrive at the aforesaid conclusion. The enquiry report which was submitted to the disciplinary authority more than 9 years prior to the impugned order Ex.P/14 reveals that even according to the enquiry officer, the deceased-petitioner was found to have embezzled the Government record and it was further found that he cannot be given benefit of committing em- bezzlement of Government record. The enquiry report which was submitted to the disciplinary authority more than 9 years prior to the impugned order Ex.P/14 reveals that even according to the enquiry officer, the deceased-petitioner was found to have embezzled the Government record and it was further found that he cannot be given benefit of committing em- bezzlement of Government record. The aforesaid enquiry report submitted by the enquiry officer to the effect that the deceased-petitioner failed to prove that he is not guilty, is ex facie illegal and erroneous, therefore, even on the basis of the enquiry report, the impugned dismissal order from service of the deceased-petitioner cannot be passed. (15). At the risk of repetition, it is reiterated that the burden to prove the allegation of delinquency against the deceased- petitioner was on the administration, which the administration has miserably failed to establish. The enquiry officer has no legal justification to shift burden of proof upon the delinquent deceased-petitioner to establish his innocence unless some evidence to prove the charges of embezzlement of Government money is established by the administration. Initially, the burden to prove the delinquency of the deceased-petitioner was upon the administration. However, it is true that after adducing some oral and documentary evidence, the onus to dis-prove the same may shift on the deceased-petitioner. (16). Here in the present case, without proving any thing about delinquency of the deceased-petitioner for embezzlement of government money, the enquiry officer has no authority in law to shift the onus of proof upon the deceased-petitioner. Suffice it to say in this regard that unless the delinquency about embezzlement of government money against the deceased-petitioner is proved by the administration by adducing some trangible evidence of definable nature, he cannot be called upon to disprove his delinquency about the aforesaid charges. (17). In my considered opinion, the order impugned dismissing the deceased-petitioner from service is based on no evidence. There is no material available on record which may prove the charges regarding embezzlement of government money by the deceased- petitioner. (18). (17). In my considered opinion, the order impugned dismissing the deceased-petitioner from service is based on no evidence. There is no material available on record which may prove the charges regarding embezzlement of government money by the deceased- petitioner. (18). I am of the view that while inflicting punishment of forfeiture of 20 years services of the deceased-petitioner as well as penalty of withholding of his pensionary benefits, no cogent and convincing reasons are disclosed either in the enquiry report or in the impugned order passed by the disciplinary authority as contemplated under Rule 14 of the Rajasthan Civil Service (Classification, Control and Appeal) Rules, 1958. (19). Learned counsel Mr. P.P.Choudhary appearing on behalf of the legal representatives of deceased-petitioner challenged the order of punishment on the ground that once a court of competent jurisdiction has acquitted the deceased-petitioner on 27.11.91 for committing embezzlement of government money amoun- ting to Rs. 1890.69 in Cr.Case No. 453 of 1983 then thereafter he cannot be punished by the disciplinary authority for the same offence. Learned counsel Mr. Choudhary placed reliance on a decision of this Court rendered in case of Mohammed Umar vs. RSEB (1). There is substance in the argument of the learned counsel for the petitioner. I am of the view that when the legislature has thought it proper to confer finality to the decision of the courts of competent jurisdiction in respect of conviction of an employee on criminal offence for maintaining his disciplinary punishment then there should be no distinction to exonerate him in case of his acquittal. If the employer can act on the basis of the finding of guilt recorded by a competent criminal court for punishing an employee in a disciplinary proceeding against him converse of it must also be treated as correct. When the disciplinary authority can act on the basis of conviction of an employee recorded by a competent court for the purpose of imposing punishment it is not open for the disciplinary authority to ignore the acquittal of the deceased-petitioner by a competent court and record a conclusion which is contrary to the finding of the court and then punish the employee for an act of alleged delinquency which constituted charge in the criminal case in which the employee has been acquitted. (20). (20). It would be profitable to quote the relevant paragraph 14 from the decision rendered by the learned Single Judge of this Court in case of Mohammed Umar (supra) as under :– ``14. There is yet another reason why the finding recorded by a court should be treated as final. It is one of the basic principles of jurisprudence that administrative authorities cannot sit in judgments over the verdict of court of competent jurisdiction. The executive authorities cannot act as appellate authorities over the findings recorded by the court. Any such attempt will be total subversion of the system of administration of justice. Therefore, here an employee has been acquitted of an offence by a court of competent jurisdiction after a regular trial and such acquittal is on merits, whether by giving benefit of doubt or otherwise, it is not permissible for the disciplinary authority to record a finding of guilt and punish the employee on the basis of the criminal charge. In some of the decided cases distinction has been sought to be made between the cases where the acquittal is honourable and cases where the benefit of doubt has been given to the accused. The distinction though appears to be attractive in the first blush, is in reality wholly fallicious. The distinction is not based on any rationale. It is a settled principle of law that even in departmental enquiries a finding of guilt can be recorded only on the basis of some legally admissible evidence. An employee cannot be puni- shed merely on the basis of some suspicion. There has to be some legal basis for recording of finding of guilt against the employee. In Union of India vs. H.C. Goyal, ( AIR 1964 SC 364 ) their Lordships of the Supreme Court have held that suspicion cannot form a valid foundation for punishing an employee. That being the position it must be held that once an employee is found not guilty by a court of law, the employer cannot subsequently say that though the evidence has been found to be insufficient by the court for recording a finding of guilt, yet he is guilty of an allegation of misconduct in the departmental enquiry. That being the position it must be held that once an employee is found not guilty by a court of law, the employer cannot subsequently say that though the evidence has been found to be insufficient by the court for recording a finding of guilt, yet he is guilty of an allegation of misconduct in the departmental enquiry. It will be extremely anomalous if in respect of an act of an employee which constitute a criminal offence, the departmental authorities do not take sufficient care to assist the prosecution agency to bring home the guilt of the employee but at the same time seek to reply on the same set of evidence for recording a finding of guilt against the employee in the disciplinary proceedings. It is not possi- ble to accept a situation that an employee is proceeded against a criminal offence by the court of competent jurisdiction and is acquitted by the court on the premise that the prosecution has failed to prove the charge by leading cogent evidence still the departmental authorities can punish him on the same set of evidence. (21). I respectfully concur with the decision rendered by the learned single Judge of this Court in case of Mohammed Umar (supra). In my considered opinion, it is not possible to accept a situation that an employee is proceeded against a cri- minal offence by the court of competent jurisdiction and is acquitted by the court on the premises that the prosecution has failed to prove the charge by leading cogent evidence still the departmental authorities can punish him on the same set of evidence. (22). As regards the charge against the deceased-petitioner for embezzlement of Government record, indisputably, the enquiry has already been dropped by the disciplinary authority on 30.1.96, therefore, it does not require any discussion on the second charge. (23). It is painful to note that the deceased-petitioner; in the present case was kept under suspension for about 20 years and after attaining the age of superannua- tion, the impugned order of dismissal from service was passed against him vide Annx.P/14. The power has not been exercised by the respondents within reasonable time and they took about 20 years to complete disciplinary proceedings against the Service Rules applicable to the deceased- petitioner. The power has not been exercised by the respondents within reasonable time and they took about 20 years to complete disciplinary proceedings against the Service Rules applicable to the deceased- petitioner. To my mind, keeping the deceased- petitioner under suspension since 1969 till the date of his retirement on attaining the age of superannuation i.e. on 31.7.88 itself was a serious punishment to him. But despite of this, his entire 20 years service period was forfeited and pension was also withheld, which is not sustainable for the reasons stated in the preceding paragraphs of this order. (24). Looking into the facts and circumstances of the present case and to adjust equity between the parties, I am of the view that the order of dismissal from service of the deceased- petitioner Ex.P/14 is liable to be quashed with a direction to the respondents to pay half of the arrears of salary to the widow of deceased-petitioner Smt. Champa from the date of his suspension dated 25.7.69 upto the date of his superannuation on 31.7.88 after deducting salary already paid to the deceased- peti- tioner as subsistence allowance. The respondents are also directed to pay full arrears of family pension to the widow of the deceased-petitioner from the date of superannuation of the deceased-petitioner uptil date of the decision of this Court and continue to pay her family pension in full till her life time in accordance with the Service Rules applicable to the deceased- petitioner. (25). Consequently, the instant writ petition is allowed and the order of dismissal from service of the deceased-petitioner dated 25.7.89 Ex.P/14 to the writ petition is hereby quashed with a direction to the respondents to pay half of the arrears of salary to the widow of deceased-petitioner Smt. Champa from the date of his suspension dated 25.7.69 upto the date of his superannuation on 31.7.1988 after deducting salary already paid to the deceased- petitioner as subsistence allowance. The respondents are also directed to pay full arrears of family pension to the widow of deceased-petitioner from the date of superannuation of the deceased-petitioner uptil date of the decision of this Court and continue to pay her family pension in full till her life time in accordance with the Service Rules applica- ble to the deceased- petitioner.