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2001 DIGILAW 303 (JK)

Taqdeer Singh v. J&K Bank Ltd.

2001-11-28

A.M.MIR

body2001
1. The short point which emerges from this petition is as to whether or not a departmental inquiry under service law, after the final adjudication of a criminal case and acquittal of the accused, is maintainable. 2. The writ petitioner, who is a Bank official, on a case being registered against him vide FIR No. 3/92, was charged for commission of offences under Sections 420, 467, 468 and 471-Ranbir Penal Code, Svt. 1989 (1932 A.D.). The criminal court vide its judgment dated: 25-01-1999 acquitted the accused-petitioner. Mr. Jhelmeria, appearing for him, has urged that after such acquittal, departmental proceedings against him under service law are not sustainable. He had made an attempt to seek assistance from a judgment delivered by the Apex Court in a case titled Capt. M. Paul anthony Vs. Bharat Gold Mines and another, reported in (1993) 3 SCC 679. 3. Courts have often been engaged in hypothecal tangle of non-maintainability of departmental proceedings either during or after the conclusion of the trial. The distinction between criminal trial and a departmental proceeding was registered by their lordships of the Supreme Court in a case titled Depot. Manager A. S. R. T. Corporation Vs. Mohd Yousuf Miya, reported in 1997 AIR SCW 2098. Their lordships while reproducing the ratio of law laid down in Meena™s case, reported in AIR 1988 SCW and AIR 1998 SC 2118 held as under: - We are in respectful agreement with the above view. The purpose of departmental enquiry and of prosecution are two different and distinct aspects. The criminal prosecution is launched for an offence for violation of a duly the offender owes to the society or for breach of which law has provided that the offender shall make satisfaction to the public. So crime is an act of commission in violation of law or of commission of public duty. The departmental inquiry is to maintain discipline in the service and efficiency of public service. It would, therefore, be expedient that the disciplinary proceedings are conducted and completed as expeditiously as possible. It is not, therefore, desirable to lay down any guidelines as inflexible rules in which the departmental proceedings may or may not be stayed pending trial in criminal case against the delinquent officer. Each case requires to be considered in the backdrop of its own facts and circumstance. It is not, therefore, desirable to lay down any guidelines as inflexible rules in which the departmental proceedings may or may not be stayed pending trial in criminal case against the delinquent officer. Each case requires to be considered in the backdrop of its own facts and circumstance. There would be no bar to proceed simultaneously with departmental inquiry and trial of a criminal case unless the charge in the criminal trial is of grave nature involving complicated questions of fact and law. Offence generally implies infringement of public, as distinguished from mere private right punishable under criminal law. When trial for criminal offence is conducted it would be in accordance with proof of the offence as per the evidence defined under the provisions of the Evidence Act. Converse is the case of departmental enquiry. The inquiry in a departmental proceedings relates to conduct of breach of duty of the delinquent officer to punish him for his misconduct defined under the relevant statutory rules or law. That the strict standard of proof or applicability of the Evidence Act stands excluded is a settled legal position. The enquiry in the departmental proceedings relate to the conduct of the delinquent officer and proof in that behalf is not as high as in an offence in criminal charge. It is seen that invariably the departmental inquiry has to be conducted expeditiously so as to effectuate efficiency in public administration and the criminal trial will take its own course. The nature of evidence in criminal trial is entirely different from the departmental proceedings. In the former prosecution is to prove the case beyond reasonable doubt on the touchstone of human conduct. The standard of proof in the departmental proceedings is not the same as the criminal trial. The evidence also is different from the standard point of Evidence Act. The evidence required in the departmental enquiry is not regulated by Evidence Act. Under these circumstances what is required to be seen is whether the departmental enquiry would seriously prejudice the delinquent in his defence at the trial in a criminal case. It is always a question of fact to be considered in each case pending on its own facts and circumstances. In this case we have seen that the charge is failure to anticipate the accident and prevention thereof. It is always a question of fact to be considered in each case pending on its own facts and circumstances. In this case we have seen that the charge is failure to anticipate the accident and prevention thereof. It has nothing to do with the culpability of the offence under section 304-A and 338 I.P.C. Under these circumstances the High Court was not right in staying the proceedings.� 4. It will be noticed that the Apex Court even allowed the departmental inquiry to go and during the pendency of the criminal case. Their lordships laid down the law as under: - As we shall presently see, there is a consensus of judicial opinion amongst the High Courts whose decisions we do not intend to refer to in this case and various pronouncements of the Court, which shall be copiously referred to, on the basic principle that proceedings in a criminal case and the departmental proceedings can proceed simultaneously with a little exception. As we understand, the basis of this proposition is that proceedings in a criminal case and the departmental proceedings operate in distinct and differ jurisdictional areas. Whereas in the part mental proceedings, where a charge relating to misconduct is being investigated, the factors operating in the mind of the disciplinary authority may be many such as enforcement of discipline to investigate the level of integrity of the delinquent or the other staff, the standard of proof required in those proceedings is also different than that required in a criminal case. While in the departmental proceedings the standard of proof is one of the preponderance of the probabilities, in a criminal case, the charge has to be proved by the prosecution beyond reasonable doubt. The little exception may be where the departmental proceedings and the criminal case are based on the same set of facts and the evidence in; both the proceedings is common without there being a variance." 5. The question raised by Mr. Jhelmeria was also conclusively answered by their lordships after referring to Nelson Motis vs. Union of India, reported in AIR 1992 SC 1981. The Apex Court held as under:- Then came the decision in Nelson Motis Vs. The question raised by Mr. Jhelmeria was also conclusively answered by their lordships after referring to Nelson Motis vs. Union of India, reported in AIR 1992 SC 1981. The Apex Court held as under:- Then came the decision in Nelson Motis Vs. Union of India which laid down that the disciplinary proceedings can be legally continued even where the employee is acquitted in a criminal case as the nature and proof required in a criminal case are different from those in the departmental proceedings. Besides the Court found that the acts which led to the initiation of departmental proceedings were not exactly the same which were the subject matter of the criminal case. The question was not considered in detail. The court observed: (SCC p.714 para 5). 5. So far the first point is concerned, namely whether the disciplinary proceedings could have, been continued in the face of the acquittal of the appellant in the criminal case, the plea has no substance whatsoever and does not merit a detailed consideration. The nature and scope of a criminal case are very different from those of a departmental disciplinary proceeding and an order of acquittal, therefore, cannot conclude the departmental proceeding. Besides the Tribunal has pointed out that the acts which led to the initiation of the departmental disciplinary proceeding were not exactly the same which were the subject matter of the criminal case.� 6. Similar view was upheld by their Lordships of the Supreme Court in a case titled Union of India Vs. Sunil Kumar Sarkar reported in 2001 (2) Supreme Court 1999. 7. On the analogy of the above authorities, it is held that there is a vast area of difference between the object, intent and standard of proof, required in a criminal case and one required in a departmental inquiry. In a criminal trial the obligation of the court is to make sure that on the set of evidence available and the only view possible is that of the offence having been committed by the accused. There should be no other view available. The offence must be proved beyond any shadow of doubt. The evidence should be too foolproof, fraught with no doubt. On the other hand same act of the accused if viewed from the angle of service law may amount to misconduct or misdemeanour. In departmental inquiries decision is made on preponderance of evidence. There should be no other view available. The offence must be proved beyond any shadow of doubt. The evidence should be too foolproof, fraught with no doubt. On the other hand same act of the accused if viewed from the angle of service law may amount to misconduct or misdemeanour. In departmental inquiries decision is made on preponderance of evidence. Act, which may fall short of an offence, come within the purview of misconduct. 8. It is only where the court finds on facts of a case that the delinquent, by dint of a departmental inquiry, will be prejudiced, or where the delinquent is proceeded on exactly the same evidence, that the court may in order to do justice, stay the proceedings of the departmental inquiry. At the cost of repetition it be noticed that will be done only in peculiar circumstances and no hard or fast rule or guideline in this behalf can be laid. 9. In the present case, however, acquittal of the writ petitioner is not a clear acquittal. The criminal court has exhaustively dealt with the failings of the investigating agency in recording the statement of the most important witness. After detailing out three important lacunae left by the investigating agency in the case the trial court observes as under: - In such circumstances was it obligatory for the investigating officer to interrogate the said Kapil Gupta and the purchaser of the T.V. The purchaser would not have brought draft in the name of the shopkeeper particularly when the price of TV was much less than the amount mentioned in the draft. The investigation officer belonging to the crime branch appears to have deliberately omitted to reach at the right conclusion for the reasons best known to him. The bank makes payment of draft in the signatures of the issuing officer are tallied. In this case who issued the draft is still a mystery. It is nowhere in the evidence that the accused Taqdeer Singh forged the signatures of the issuing officer. The file be consigned to records after due compilation.� 10. The circumstances explained by the trial court make it clear that it was only because of carelessness of the investigating officer that the trial court had to pass an order of acquittal. With this background in mind, the plea taken by Mr. The file be consigned to records after due compilation.� 10. The circumstances explained by the trial court make it clear that it was only because of carelessness of the investigating officer that the trial court had to pass an order of acquittal. With this background in mind, the plea taken by Mr. Jhalmeria that the department inquiry is directed against same charges and is to be held on the same evidence seems to be miserably groundless. 11. Thus initiation of departmental proceedings after the acquittal of the accused-petitioner is not debarred, nor could the same be held to be incompetent during the course of a criminal trial. After having answered the question in negative, I find no substance in this petition, which is accordingly dismissed.