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2004 DIGILAW 596 (DEL)

B. S. KUSHWAHA v. N. T. P. C. LTD.

2004-08-10

MANMOHAN SARIN

body2004
Manmohan Sarin, J. ( 1 ) RULE. WITH the consent of parties, the writ petition is taken up for disposal. ( 2 ) PETITIONERS by this writ petition seek quashing of the memo of charges dated 25. 4. 1995, findings of the Enquiry Officer dated 1. 9. 1999, order of punishment dated 21. 2. 2000, order passed in appeal dated 27. 11. 2000 and the order dated 27. 6. 2002 passed in review. Petitioners also seek a mandamus directing respondents to grant due promotion to the petitioners, with retrospective effect along with all consequential benefits. ( 3 ) FACTS leading to the filing of the present petition are that the petitioner No. 1 was employed with respondent No. 1 Corporation, as a Technician Grade-IV. Petitioner No. 2 had joined as Steno-Typist and had been promoted to the post of Stenographer. Petitioners No. 1 and 2 were posted at Auraiya Gas Power Project of the respondent Corporation during the period April,1995. A complaint was lodged by Mr. Manish Jain, Senior Engineer, that petitioners along with another employee of the Corporation namely D. P. S. Chauhan came to the hostel room where he along with others were sitting. Petitioners along with Mr. Chauhan dragged him out of the room and beat him up. They further threatened to kill him. Complaint was also lodged with the police authorities. On the complaint of the Petitioner, an FIR was lodged and criminal prosecution was commenced. The respondent Corporation had also issued a charge sheet on 25. 4. 1995, accusing the petitioners of misconduct and man-handling the Senior Engineer. Evidence was led in the departmental proceedings in which the petitioners also participated. Proceedings culminated into an order dated 21. 2. 2000, imposing a penalty of stoppage of three increments with cumulative effect. Appeal against the said order was dismissed, vide order dated 27. 11. 2000. Review application against the same was also dismissed on 27. 6. 2002. ( 4 ) IN the meanwhile in criminal trial, the petitioners were acquitted. It was held that based on statement of the witnesses, the charge had not been proved against the petitioners. Learned counsel for the petitioner submits that firstly the Departmental proceedings should not have been carried on in view of the pendency of the criminal trial. Secondly, she submits, that in any case when the order of acquittal dated 6. 9. It was held that based on statement of the witnesses, the charge had not been proved against the petitioners. Learned counsel for the petitioner submits that firstly the Departmental proceedings should not have been carried on in view of the pendency of the criminal trial. Secondly, she submits, that in any case when the order of acquittal dated 6. 9. 2000 was shown to the appellate authority, the appellate authority did not pay any heed to the same and dismissed the appeal. Ms. Richa Kapoor, therefore, submits that the appellate authority should have taken note of the acquittal of the petitioners in the criminal proceedings, especially when the facts in both the proceedings were identical, the witnesses who were examined were the same. Further in these circumstances due regard should have been paid to the judgment of the Metropolitan Magistrate acquitting the accused on merits. ( 5 ) MS. RICHA Kapoor further submits that leave aside the factum of acquittal, the appellate authority did not even refer to the judgment by the Metropolitan Magistrate. She places reliance on Capt. M. Paul Anthony V. Bharat Gold Mines Ltd. and Anr. reported as JT 1999 (2) SC 456. In the cited case, the Supreme Court reviewed the existing law and the principles with regard to the desirability and propriety of staying a departmental proceedings, while criminal prosecution was on. From a perusal of the judgment it is seen that what weighed with the Court in the cited case was that the petitioner therein was not provided sufficient opportunity to contest the matter. The Departmental proceedings had been proceeded ex-parte. The petitioner was not even paid the subsistence allowance enabling him to travel and attend the departmental proceedings. These were the factors which led to the Court to the conclusion that there has been violation of principle of natural justice. The Court noted in addition that following the acquittal in the criminal case the departmental proceedings were based on identical set of facts and the witnesses including the Panch witnesses were also common. Noting that the whole case of the prosecution had been thrown out and the appellant was acquitted, the Court which had as it is found that departmental proceedings had been conducted in gross violation of the principle of natural justice, granted relief to the petitioner and quashed the departmental proceedings. Noting that the whole case of the prosecution had been thrown out and the appellant was acquitted, the Court which had as it is found that departmental proceedings had been conducted in gross violation of the principle of natural justice, granted relief to the petitioner and quashed the departmental proceedings. ( 6 ) IT may be noted that there is no quarrel with the legal principles as enunciated in para 22 of the said judgment and the same are reproduced here for the sake of facility. 22. The conclusions which are deducible from various decisions of this Court referred to above are:- (I)DEPARTMENTAL proceedings and proceedings in a criminal case can proceed simultaneously as there is no bar in their being conducted simultaneously, though separately. (II)IF the departmental proceedings and the criminal case are based on identical and similar set of facts and the charge in the criminal case against the delinquent employee is of a grave nature which involves complicated questions of law and fact, it would be desirable to stay the departmental proceedings till the conclusion of the criminal case. (III)WHETHER the nature of a charge in a criminal case is grave and whether complicated 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 chargesheet. (IV)THE factors mentioned at (ii) and (iii) above cannot be considered in isolation to stay the Departmental proceedings but due regard has to be given to the fact that the departmental proceedings cannot be unduly delayed. (V)IF the criminal case does not proceed or its disposal is being unduly delayed, 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 conclude 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, administration may get rid of him at the earliest. ( 7 ) MR. S. K. TANEJA, Sr. Advocate appearing on behalf of the respondents, while refuting the submissions made by counsel for the petitioner, submits that this was a case of gross misconduct. A Senior Engineer had been assaulted. Mr. ( 7 ) MR. S. K. TANEJA, Sr. Advocate appearing on behalf of the respondents, while refuting the submissions made by counsel for the petitioner, submits that this was a case of gross misconduct. A Senior Engineer had been assaulted. Mr. Taneja has also taken me through the statement made by Mr. Manish Jain, Senior Engineer, before the Chief Judicial Magistrate. In the said statement Mr. Jain admitted in cross examination that a compromise had taken place between him and the accused persons. The said witness accordingly during the trial while complaining about the beatings being given in his FIR, had declined to admit the occurrence of incident resulting in the Trial Court holding that the charge had not been proved. Mr. Taneja rightly submits that acquittal in the criminal court, of necessity, cannot result in being exonerated in the departmental proceedings. It is stated that before the enquiry officer the complainant had duly proved the case and deposed as to the misconduct of the petitioners. Counsel also placed reliance on Sri Ganapathi Mills Co. Ltd. Vs. Presiding Officer, Labour Court and another 2003 LLR 88, where the court noted that simply because a complaint was withdrawn either on account of compromise or understanding in the Labour Court, the same would not undermine the findings or the evidence recorded before the domestic enquiry. The Court held:- "the mere fact that the second respondent and the other co-worker had chosen to compromise the issue between themselves cannot result in the Labour Court recording a finding that there was no proof of occurrence. " ( 8 ) HE further placed reliance on Govind Das Vs. State of Bihar and Others reported as (1997) 11 Supreme Court Cases 361 in support of his contention that an acquittal in the criminal trial would have no determinative effect. The standard of the proof required in the departmental enquiry was pre-pondrence while in criminal trial his guilt had to be proved beyond reasonable doubt. To the similar effect is judgment of Supreme Court in Senior Superintendent of Post Offices, Pathanmthitta and Ors. Vs. A. Gopalan (1997) 2 SCC 239. ( 9 ) HAVING heard learned counsel for the parties and having noted their submissions, as noted above, I find that the domestic enquiry in the instant case is not vitiated by any irregularity or illegality. Vs. A. Gopalan (1997) 2 SCC 239. ( 9 ) HAVING heard learned counsel for the parties and having noted their submissions, as noted above, I find that the domestic enquiry in the instant case is not vitiated by any irregularity or illegality. While it is true that it is the same set of facts on which the criminal trial and the departmental enquiry are based. The witnesses may also be common, yet there is no bar in the departmental enquiry and criminal trial being carried on simultaneously or contemporaneously. They operate in different fields and which position is now virtually well settled. In the instant case the acquittal was a result of a compromise, said to have been reached by the complainant with the witnesses and as admitted by the complainant during his cross examination. In these circumstances the acquittal in criminal trial cannot negate the findings in the departmental enquiry. ( 10 ) LEARNED counsel for the petitioner has not been able to urge any other substantial ground on which the findings of the enquiry officer or that of the appellate authority or reviewing authority could be assailed. ( 11 ) LASTLY learned counsel for the petitioner submits that punishment was highly disproportionate to the nature of misconduct alleged. He submits that punishment of stoppage of three increments with cumulative effect will have a far-reaching consequences. I am unable to accept this contention. Petitioners had committed grave act of indiscipline and misconduct by going to the hostel room of the senior engineer, dragging him out and assaulting him. It was not one of those cases where in the heat of moment or under sudden provocation the act was committed. The punishment meted out cannot be labelled as grossly disproportionate. In view of the foregoing discussion, writ petition is held to be devoid of merit and is dismissed.