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2003 DIGILAW 813 (PAT)

Sudama Prasad Dewedi v. State Of Bihar

2003-08-05

CHANDRAMAULI KR.PRASAD

body2003
Judgment Chandramauli Kr.Prasad, J. 1. This application has been filed for quashing the order dated 15.11.1995 (Annexure-5) whereby the petitioner has been visited with several penalties. Further prayer made by the petitioner is to quash the order dated 8.7.2000 (Annexure-8) whereby the appeal preferred against the order of the disciplinary authority has been dismissed. 2. Shorn of unnecessary details, facts giving rise to the present application are that at the relevant time petitioner was working as Cashier in the Electric Supply Subdivision, Hathidah and a report in regard to defalcation of a sum of Rs. 16,000/- was lodged by the Assistant Electrical Engineer to the officer-in-chargo of the Hathidah police station and on that basis Hathidah P.S.Case No. 69 of 1986 was registered against the petitioner. By order dated 21.8.1986 (Annexure-3) he was put under suspension and a departmental enquiry was initiated against him. Petitioner was served with the memo of charge which contained the following charges: (1) Cheque no. BZ 324065/70 dated 24.3.83 was for Rs. 1015.65 which was shown as Rs. 11015.65 in the cash book as well as the pay-in-slip. A sum of Rs. 10,000/- was thus defalcated. (2) Cheque No. BZ855657/70 dated 31.3.83 was for Rs. 1,242.72 which was shown deposited as Rs, 4,242.72 in the Cash Book as well as in pay-in-slip. A sum of Rs. 3000/- was defalcated. (3) Cheque no. CA/180L-741034 dated 31.3.83 was for Rs. 1,967.37 which was shown deposited as Rs. 4,967.37 in the cash Book as well as in pay-in-slip. 3. The enquiry officer submitted his report dated 18.7.1995 and held the petitioner guilty of all the charges. In the meanwhile petitioner for the same charge was put on trial and by order dated 23.7.1992 passed in T.R.No. 80 of 1992/ G.R.No. 1050 of 1986, Judicial Magistrate, Ist Class, Barh acquitted him of the charge. Petitioner was not given any opportunity or to show cause notice against the proposed punishment or the copy of the enquiry report by the disciplinary authority but it inflicted the following punishment: (i) The defalcated amount of Rs. 26,000/- (Twenty six thousand) only will be recovered from salary of Sri Sudama Prasad Dwivedi, Accounts Assistant. (ii) Two of his annual increments are stopped with cumulative effect. (iii) He is debarred from promotion in future. (iv) He will not be allowed to handle cash in future. (v) He is released from suspension with immediate effect. 26,000/- (Twenty six thousand) only will be recovered from salary of Sri Sudama Prasad Dwivedi, Accounts Assistant. (ii) Two of his annual increments are stopped with cumulative effect. (iii) He is debarred from promotion in future. (iv) He will not be allowed to handle cash in future. (v) He is released from suspension with immediate effect. He will not be paid anything more than what has already been paid to him as subsistence allowance during the period of suspension but the period of suspension will be treated as the period spent on duty only for the purpose of pension and gratuity. (vi) He is transferred and posted to Trans. Circle, Purnea on administrative ground with immediate effect. (vii) Above punishment will be entered in his A.C.R. & Service Book. 4. Petitioner challenged the aforesaid order of punishment by filing a writ petition before this Court, which was registered as CWJC No. 4973 of 1999 (Sudama Prasad Dewedi V/s. State of Bihar and others) and this Court by order 29.3.2000 disposed of the said writ application with the following direction: "If the petitioner files an appeal against the impugned order before the appropriate authority along with a copy of this order within a period of one month from today, the appellate authority will consider the said appeal without insisting on the period of limitation. But if the appeal is filed beyond the aforesaid period, in that case the petitioner has to explain the period of delay. It is expected that the appellate authority will pass a speaking order disposing of the petitioners appeal." 5. In the light of the order of this Court the disciplinary authority by the impugned order dated 8.7.2000 (Annexure-8) considered the appeal and dismissed the same. 6. Mr. D. K. Sinha, Senior Advocate appearing on behalf of the petitioner submits that for the same charge petitioner was put on trial in a criminal case and he having been acquitted by the learned Magistrate, punishment inflicted in the departmental proceeding is rendered illegal. In support of his submission Mr. 6. Mr. D. K. Sinha, Senior Advocate appearing on behalf of the petitioner submits that for the same charge petitioner was put on trial in a criminal case and he having been acquitted by the learned Magistrate, punishment inflicted in the departmental proceeding is rendered illegal. In support of his submission Mr. Sinha has placed reliance on a judgment of the Madras High Court in the case of Shaik Kasim V/s. The Superintendent of Post Office (AIR 1965 Madras 502) and my attention has been drawn to paragraph 3 of the judgment which reads as follows: "Firstly, an Administrative authority, in initiating disciplinary proceedings, is not bound to wait for the verdict of a criminal court. But where the criminal court has tried the concerned person and acquitted him, it would be improper, and such a proceeding is liable to be quashed as not in consonance with the principles of natural justice, if the Administrative authority fater initiates disciplinary proceedings on the identical facts, and identical charge and records a contrary conclusion. But, of course, the acquittal should have been substantially on the merits; technical acquittals on grounds like sanction may not inhibit departmental disciplinary proceedings, or a contrary verdict therein. Secondly, there could be no rigid or inflexible rule that the finding of a criminal court is conclusive, in every sense, upon Administrative Authorities. If the finding is purely a technical acquittal, the Administrative Authority may conceivably punish, on the same facts. It can certainly punish where the acquittal is solely based on lack of sanction, or some technical defect in procedure. It could punish, on the same facts, for some lesser charge, which may not amount to a criminal offence, but may well amount to grave dereliction of duty, entitling disciplinary action. For instance, a school master may be acquitted of a charge of rape alleged to have been committed against a girl-student in his care. But that cannot preclude the departmental authority, upon those very facts, from punishing him for grave impropriety in his relationships with the girl-students, which disentitles him to that office. Thirdly, where the acquittal is substantially on merits, on identical facts and charges, it will not be proper for a disciplinary Tribunal to record a finding of guilt, and to punish thereon. Thirdly, where the acquittal is substantially on merits, on identical facts and charges, it will not be proper for a disciplinary Tribunal to record a finding of guilt, and to punish thereon. This is a basic principle of jurisprudence, and I cannot see that it makes any difference that the departmental authority acts before the criminal proceeding, or after it. This court, in exercise of the jurisdiction under Art. 226 of the Constitution, would be justified striking down the action based on such findings as not in consonance with principles of natural justice. Otherwise, grave anomalies might follow, as stressed by Rajamannar C.J. and Venkatarama Aiyar, J. in 1952-1 Mad LJ 35: ( AIR 1952 Mad. 853 )" 7. Another decision on which Mr. Sinha has placed reliance is the judgment of the Supreme Court in the case of Capt. M. Paul Anthony V/s. Bharat Gold Mines Ltd. and another [ (1999) 3 SCC 679 )] and my attention has been drawn to paragraph 34 of the judgment, which reads as follows: "There is yet another reason for discarding the whole of the case of the respondents. As pointed out earlier, the criminal case as also the departmental proceedings were based on identical set of facts, namely, "the raid conducted at the appellants residence and recovery of incriminating articles threrefrom". The findings recorded by the enquiry officer, a copy of which has been placed before us, indicate that the charges framed against the appellant were sought to be proved by police officers and panch witnesses, who had raided the house of the appellant and had effected recovery. They were the only witnesses examined by the enquiry officer and the enquiry officer, relying upon their statements, came to the conclusion that the charges were established against the appellant. The same witnesses were examined in the criminal case but the Court, on a consideration of the entire evidence, came to the conclusion that no search was conducted nor was any recovery made from the residence of the appellant. The whole case of the prosecution was thrown out and the appellant was acquitted. The same witnesses were examined in the criminal case but the Court, on a consideration of the entire evidence, came to the conclusion that no search was conducted nor was any recovery made from the residence of the appellant. The whole case of the prosecution was thrown out and the appellant was acquitted. In this situation, therefore, where the appellant is acquitted by a judicial pronouncement with the finding that the "raid and recovery" at the residence of the appellant were not proved, it would be unjust, unfair and rather oppressive to allow the findings recorded at the ex parte departmental proceedings to stand." 8. Reliance has also been placed on a decision of this Court in the case of Javed Shoukat V/s. The State of Bihar and ors. [( 2000 (2) PLJR 552 )] in which after placing reliance on the judgment of the Supreme Court in the case of Cap. M. Paul Anthony (supra) this Court held that the punishment awarded to the delinquent employee in the departmental enquiry which was the subject matter of charge in the criminal case in which he was acquitted, is bad in law. 9. Mr. R.K. Datta appearing on behalf of respondents 2 to 4 does not dispute the fact that the charges against the petitioner in the criminal case as also the departmental enquiry were one and the same but mere acquittal in the criminal case, he submits, would not deprive the disciplinary authority to proceed against the petitioner departmentally and inflict punishment in accordance with law. He points out that in the criminal case excepting one witness who had proved the signature of the Assistant Sub Inspector of Police on the first information report, no further evidence was led and hence the acquittal of the petitioner in the criminal case shall have no bearing. 10. Having appreciated the rival contention, I do not find any substance in the submission of Mr, Sinha and the authorities relied on are clearly distinguishable. From a perusal of the order of the learned Magistrate it is evendent that only witnesses examined in the case was PW1 Shyam Kishore Singh who had proved the signature of the Assistant Sub Inspector of Police who had recorded the first information report and his signature was marked as Ext. 1. From a perusal of the order of the learned Magistrate it is evendent that only witnesses examined in the case was PW1 Shyam Kishore Singh who had proved the signature of the Assistant Sub Inspector of Police who had recorded the first information report and his signature was marked as Ext. 1. The learned Magistrate while acquitting the petitioner observed that sufficient time from 16.6.1989 to 17.6.1992 was given to the prosecution to lead evidence but no witness was examined. Accordingly the learned Magistrate concluded that the prosecution has miserably failed to bring home the charge against the petitioner and acquitted him of the charge. However, in the departmental enquiry two witnesses namely Sri Raghuvansh Roy, Assistant Electrical Engineer and Sri B.B. Srivastava, Accounts Assistant were examined who had supported the charge and on consideration of the same the enquiry officer submitted his report holding the petitioner guilty of misconduct. Thus the finding has been arrived at by the enquiry officer not on the basis of the same set of evidence but on different material. 11. It is well settled that mere acquittal of a person in the criminal case does not prohibit the disciplinary authority to proceed against the delinquent employee in the departmental proceeding. Underlying principle behind this is that in the criminal case prosecution has to prove its case beyond all reasonable doubt whereas in the departmental proceeding such a strict proof is not required. In the cases of Shaik Kasim (supra), Capt. M. Paul Anthony (supra) and Javed Shoukat (supra) on the same set of evidence the criminal court acquitted the delinquent employee and on their evidence the enquiry officer held the delinquent employee guilty and was punished ultimately by the disciplinary authority. In the present case, as stated earlier, none of the witnesses examined in the departmental enquiry deposed in the trial and the enquiry officer has recorded the finding of guilt on entirely different set of evidence. For the same reason the judgment of the Madras High Court in Shaik Kasim (supra) is clearly distinguishable. In fact in this case Madras High Court had observed that in case of "technical acquittal, the administrative authority may conceivably punish, on the same facts." 12. Mr. Sinha then contends that the disciplinary authority while passing the impugned order has not assigned any reason and this vitiates the impugned order. In support of his submission Mr. In fact in this case Madras High Court had observed that in case of "technical acquittal, the administrative authority may conceivably punish, on the same facts." 12. Mr. Sinha then contends that the disciplinary authority while passing the impugned order has not assigned any reason and this vitiates the impugned order. In support of his submission Mr. Sinha has placed reliance on a decision of this Court in the case of Dr. Rabindra Nath Singh vrs.The State of Bihar and others (1983 PLJR 92) and my attention has been drawn to the following passage of the judgment, which reads as follows: "The petitioner is entitled to the consideration of the show cause by the Disciplinary authority and the application of the mind of the said authority before imposing any punishment under Rule 55-A of the Rules. The authority is required further to give reasons in support of the said order." 13. Reliance has also been placed on a Division Bench judgment of this Court in the case of Chandradip Sinha V/s. The State of Bihar and others ( 2000 (3) PLJR 64 )] and my attention has been drawn to paragraph 5 of the judgment, which reads as follows: "Pursuant to the direction given by this court, the Chief Engineer, Kosi Area Electricity Board issued a detailed show cause notice to the petitioner under his memo no. Cl, dated 18.9.1999. The petitioner filed its reply to the show cause notice on 27.9.1999 and thereafter the Chief Engineer heard the parties on October, 12 and 13, 1999. After hearing the parties the Chief Engineer passed the order dated 16.10.1999. In that order, he reiterated the finding "that the electrical power was being consumed by the consumer in unauthorised and illegal way by creating obstruction in running of the meter and by interfering (sic) with a system of supply and it attracts provision of section 16.9. (A). I. (b) of tariff notification." He accordingly directed for issuance of a fresh bill as per his order and in accordance with the provisions of Clause 16.9 of the tariff." 14. Mr. Datta however points out that the disciplinary authority had referred to the allegation made against the petitioner and on consideration of the same had passed the order, which cannot be termed to be illegal. Mr. Datta however points out that the disciplinary authority had referred to the allegation made against the petitioner and on consideration of the same had passed the order, which cannot be termed to be illegal. He points out that in the case of minor punishment a delinquent employee is to be given adequate opportunity to make representation and the order of the disciplinary authority should indicate the consideration of representation by the disciplinary authority. He points out that in the present case petitioner has been inflicted the penalty after a detailed enquiry and hence the order does not suffer from any error. 15. Having considered the rival submission, I do not find any force in the submission of Mr. Sinha and the authorities relied on are clearly distinguishable. It is relevant here to state that in the present case petitioner has been visited with the penalty after a full fledged departmental enquiry in which the enquiry officer submitted a report holding the petitioner guilty of the misconduct. The disciplinary authority had considered the report of the enquiry officer and on consideration of the same had passed the impugned order. The order impugned indicates the application of mind. As regards the authorities in the cases of Dr. Rabindra Nath Singh (supra) and Chadradip Sinha (supra) the delinquent employee was visited with the minor punishment and the rule governing therein contemplated giving of adequate opportunity of representation and in the background of said rule this Court found that the order of punishment must indicate the reason. Here in the present case petitioner has been visited, not with minor penalty but major penalty on the finding of guilt by the enquiry officer. 16. Mr. Sinha lastly submits that the disciplinary authority had passed the order without giving any show cause notice at all or show cause against the proposed punishment or making available the copy of the enquiry report, which itseif renders the impugned order illegal in the eye of law. In support of the submission reliance has been placed on a decision of the Supreme Court in the case of Union of India V/s. Mohd. In support of the submission reliance has been placed on a decision of the Supreme Court in the case of Union of India V/s. Mohd. Ramzan Khan ( AIR 1991 SC 471 ) and my attention has been drawn to paragraph 15 of the judgment, which reads as follows: "Deletion of the Second opportunity from the scheme of Art. 311 (2) of the Constitution has nothing to do with providing of a copy of the report to the delinquent in the matter of making his representation. Even though the second stage of the inquiry in Art. 311 (2) has been abolished by amendment, the delinquent is still entitled to represent against the conclusion of the Inquiry Officer holding that the charges or some of the charges are established and holding the delinquent guilty of such charges. For doing away with the effect of the enquiry report or to meet the recommendations of the Inquiry Officer in the matter of imposition of punishment, furnishing a copy of the report becomes necessary and to have the proceeding completed by using some material behind the back of the delinquent is a position not countenanced by fair procedure. While by law application of natural justice could be totally ruled out or truncated, nothing has been done there which could be taken as keeping natural justice out of the proceedings and the series of pronouncements of this Court making rules of natural justice applicable to such an inquiry are not affected by the 42nd amendment. We, therefore, come to the conclusion that supply of a copy of the inquiry report along with recommendations, if any, in the matter of proposed punishment to be inflicted would be within the rules of natural justice and the delinquent would, therefore, be entitled to the supply of a copy thereof. The Forty-Second Amendment has not brought about any change in this position." 17. Reliance has also been placed on a Constitution Bench judgment of the Supreme Court in the case of Managing Director, ECIL, Hyderabad etc. etc. V/s. B. Karunakar, etc. etc. ( AIR 1994 SC 1074 ) and my attention had been drawn to the following passage from the said judgment, which reads as follows: "7. Reliance has also been placed on a Constitution Bench judgment of the Supreme Court in the case of Managing Director, ECIL, Hyderabad etc. etc. V/s. B. Karunakar, etc. etc. ( AIR 1994 SC 1074 ) and my attention had been drawn to the following passage from the said judgment, which reads as follows: "7. XX XX XX (iv) In the view that we have taken, viz., that the right to make representation to the disciplinary authority against the findings recorded in the inquiry report is an intergral part of the opportunity of defence against the charges and is a breach of principles of natural justice to deny the said right, it is only appropriate that the law laid down in Mohd. Ramzans Khan case ( AIR 1991 SC 471 ) (supra) should apply to employees in all establishments, whether Government or non-Government, public or private. This will be the case whether there are rules governing the disciplinary proceeding or not and whether they expressly prohibit the furnishing of the copy of the report or are silent on the subject. Whatever the nature of punishment, further, whenever the rules require an inquiry to be held, for inflicting the punishment in question, the delinquent employee should have the benefit of the report of the Inquiry Officer before the disciplinary authority records its findings on the charges levelled against him. Hence question (iv) is answered accordingly." 18. Reliance has also been placed on a decision of this Court in the case of Biresh Lal V/s. Heavy Engineering Corporation Ltd. & ors. [( 2000(3) PLJR 309 )] and my attention has been drawn to the following passage from paragraph 10 of the judgment, which reads as follows: "Taking into consideration ail these facts, I have no hesitation in holding that the entire non-service of the memo of charge, non-supply of the enquiry report and perfunctory finding recorded by the enquiry officer in the enquiry report." 19. Mr. Mr. Datta fairly concedes that the petitioner was not given the copy of the enquiry report nor any opportunity by the disciplinary authority before imposition of the punishment but he submits that in the absence of any prejudice the order impugned cannot be held to be illegal only on the ground that the copy of the enquiry report was not made available to the delinquent employee or no opportunity was given by the disciplinary authority to pray for his exoneration from the charge. He points out that non-supply of the enquiry report in the absence of any prejudice should not mechanically lead to the setting aside of the order of punishment. Reliance has been placed on the following observation of the Supreme Court in B. Karunakar (supra) in which it has been observed as follows: "Hence in all cases where the Inquiry Officers report is not furnished to the delinquent employee in the disciplinary proceedings the courts and Tribunals should cause the copy of the report to be furnished to the aggrieved employee if he has not already secured it before coming to the Court/Tribunal, and give the employee an opportunity to show how his or her case was prejudiced because of the non-supply of the report. If after hearing the parties, the Court/Tribunal comes to the conclusion that the non-supply of the report would have made no difference to the ultimate findings and the punishment given, the Court/Tribunal should not interfere with the order of punishment. The Court/Tribunal should not mechanically set aside the order of punishment on the ground that the report was not furnished as is regrettably being done at present. The courts should avoid resorting to shortcuts. Since it is the Courts/Tribunals which will apply their judicial mind to the question and give their reasons for setting aside or not setting aside the order of punishment, (and not any internal appellate or revisional authority), there would be neither a breach of the principles of natural justice nor a denial of the reasonable opportunity. It is only if the Courts/Tribunals find that the furnishing of the report would have made a difference to the result in the case that it should set aside the order of punishment. It is only if the Courts/Tribunals find that the furnishing of the report would have made a difference to the result in the case that it should set aside the order of punishment. Where after following the above procedure, the Court/Tribunal sets aside the order of punishment, the proper relief that should be granted is to direct reinstatement of the employee with liberty to the authority/management to proceed with the inquiry, by placing the employee under suspension and continuing the inquiry from the stage of furnishing him with the report. The question whether the employee would be entitled to the back-wages and other benefits from the date of his dismissal to the date of his reinstatement if ultimately ordered should invariably be left to be decided by the authority concerned according to law, after the culmination of the proceedings and depending on the final outcome. If the employee succeeds in the fresh inquiry and is directed to be reinstated, the authority should be at liberty to decide according to law how it will treat the period from the date of dismissal till the reinstatement and to what benefits, if any and the extent of the benefits, he will be entitled. The reinstatement made as a result of the setting aside of the inquiry for failure to furnish the report should be treated as a reinstatement for the purpose of holding the fresh inquiry from the stage of furnishing the report and no more, where such fresh inquiry is held. That will also be the correct position in law." 20. In view of the decision of the Supreme Court in the cases of Ramzan Khan (supra) and B.Karunakar (supra) it is trite that the requirement to furnish copy of the enquiry report, flows from the principle of natural justice and denial of the report of the enquiry officer to the delinquent employee is a denial of principles of natural justice. Further mere non-supply of the copy of the enquiry report itself shall not lead to setting aside of the order of punishment in the absence of any prejudice to the delinquent employee. In the present case the petitioner has been denied not only reasonable opportunity to prove his innocence before the disciplinary authority but the same has caused prejudice to the petitioner also. In the present case the petitioner has been denied not only reasonable opportunity to prove his innocence before the disciplinary authority but the same has caused prejudice to the petitioner also. Not only this petitioner has not given any opportunity at all to prove his innocence before the disciplinary authority. 21. As stated earlier, according to the charge petitioner is alleged to have defalcated a total sum of Rs. 16,000/- whereas the finding of the enquiry officer is that he had defalcated a sum of Rs. 26,000/- and the petitioner has been visited with the penalty on such a finding. This has certainly prejudiced the petitioner. 22. Not only this I am of the opinion that in a case in which no opportunity is given to the delinquent employee the question of prejudice has no role to play. There may be case in which the disciplinary authority may give an opportunity to the delinquent employee after the receipt of the copy of the enquiry report without making available a copy thereof to him and in such case the delinquent employee files his show cause rebutting the finding of the enquiry officer then in that case one may invoke the theory of prejudice to hold that mere non-supply of the copy of the enquiry report shall not vitiate the ultimate order of punishment. However, in case in which the disciplinary authority had not given any opportunity at all, after the report of the enquiry officer to plead for his exoneration, he is deprived of the opportunity and in such circumstances the question of prejudice does not arise at all and the same goes to the very root of the matter. In my opinion, the petitioner not only has been deprived of the adequate opportunity of satisfying the disciplinary authority about his innocence but has also been prejudiced by non-supply of the enquiry report, which renders the impugned order illegal in the eye of law. 23. Respondents, if so advised, may proceed against the petitioner from a stage subsequent to the submission of the enquiry report. 24. In the result, the application is allowed, impugned order of the disciplinary authority dated 15.11.1995 (Annexure-5) and the appellate order dated 8.7.2000 (Annexure-8) are quashed with the liberty aforesaid. Consequential benefit shall abide by the ultimate decision of the respondent-Board. No costs.