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Madhya Pradesh High Court · body

2008 DIGILAW 1371 (MP)

KRISHNA KUMAR PATERIA v. STATE OF M P

2008-11-25

DIPAK MISRA, R.K.GUPTA

body2008
Judgment ( 1. ) THIS is an appeal preferred by the original petitioner u/s 2 (1) of m. P. Uchha Nyayalaya (Khandpeeth Ko Appeal) Adhiniyam, 2005 against the order dated 08/07/2008 passed by learned Single Judge in W. P. No. 13474/2003. The learned Single Judge has dismissed the petition. ( 2. ) THE petitioner was aggrieved by the order dated 11/01/1999 and the order dated 21/09/1999, filed a petition before this Court. By an order dated 11/01/1999 petitioner was dismissed from services and by an order dated 21/01/1999 an amount of Rs. 14,611. 40 was directed to be recovered. ( 3. ) THE petitioner was employed on the post of LDC and a first information report against the petitioner was lodged. The petitioner was prosecuted a criminal case. A charge sheet was also issued against the petitioner. The copy of the charge sheet is filed as Annexure-A-2 wherein the following charges against the petitioner were framed:- 3. Simultaneously departmental enquiry against the petitioner was conducted. The said criminal case ultimately resulted into the conviction of the petitioner foran offence punishable u/s 409 of the IPC and the petitioner was sentenced by the trial Court to six months imprisonment with a fine of Rs. 2,000/ -. The petitioner preferred an appeal against the said order of conviction and the Appellate Court passed an order of acquittal dated 24/05/1995 (Annexure-A-7) by giving him the benefit of doubt. ( 4. ) IN the departmental enquiry earlier a penalty was imposed on the petitioner for charge no. 1 recovery of Rs. 14,611. 40, for charge no. 2 withholding of two annual increments with cumulative effect and, for the charge no. 3 censure. The appellate authority after the order of acquittal which was passed by the criminal court giving the petitioner benefit of doubt, decided to enhance the penalty in exercise of its powers under Rule 29 (2) of the M. P. Civil Services Classification (Control and Appeal) Rules, 1966 and accordingly a show cause notice was issued to the petitioner as to why the punishment be not enhanced. Subsequently after considering the reply submitted by the petitioner the appellate authority enhanced the penalty by passing an order Annexure-A-14. ( 5. ) THE appellate authority decided to impose a penalty of removal from services for charge no. l and 3 for charge no. Subsequently after considering the reply submitted by the petitioner the appellate authority enhanced the penalty by passing an order Annexure-A-14. ( 5. ) THE appellate authority decided to impose a penalty of removal from services for charge no. l and 3 for charge no. 2 a penalty of withholding two annual increments without cumulative effect was imposed. ( 6. ) IN view of the factual back drop of the case the learned Single Judge dismissed the petition and held that under Rule 29 (2) of the M. P. Civil Services classification (Control and Appeal) Rules, 1966, the appellate Authority has power to enhance the penalty. With reference to the acquittal, the learned Single Judge came to the conclusion that the acquittal by giving him the benefit of doubt will not necessarily result into the quashing of the order of penalty because even after the acquittal the department has lawful authority to proceed with the disciplinary proceedings. ( 7. ) THE learned Single Judge relied upon the judgment passed by the Apex court in 2006 (10) SCC 572 (Suresh Pathrella Vs. Oriental Bank of Commerce ). Learned counsel appearing on behalf of the petitioner submitted that after when the petitioner has been acquitted of the charges the order of penalty has to be set aside. For the said proposition learned Counsel appearing on behalf of the petitioner relied upon the judgment passed by the Apex Court in AIR 1999 SC 1416 . (Capt m. Paul Anthony Vs. Bharat Gold Mines Ltd and another ). ( 8. ) THE submission so made by the learned Counsel for the petitioner is considered. The Apex Court has taken into account the right of the employer to continue with the departmental enquiry even after the acquittal To substantiate the same, learned Single Judge has referred the judgment passed in Suresh pathrella (supra) wherein the Apex Court has held that a departmental enquiry can be proceeded with even after the acquittal of an incumbent. Thus even though on the basis of the law laid down by the Apex Court in case of M. P. M. Paul anthonys case (Supra), now the position is made clear that there is no bar in proceeding wiih the departmental enquiry even after the acquittal by the criminal court ( 9. Thus even though on the basis of the law laid down by the Apex Court in case of M. P. M. Paul anthonys case (Supra), now the position is made clear that there is no bar in proceeding wiih the departmental enquiry even after the acquittal by the criminal court ( 9. ) IN the present case it may be seen that the appellate authority while passing the order of enhancement has inflicted a penalty of removal from services with reference to charge no. 1 and 3 and charge no. 1 related to the misappropriation of the amount for which he is acquitted by giving him the benefit of doubt. Thus even though the writ appellant has been acquitted by the criminal court for charge no. l then the penalty of dismissal has also been imposed on the present writ appellant for charge no. 3 that he remained absent without any justified reasons for a period from 12/10/1978 till the issuance of charge sheet. The charge sheet was issued on 20th July 1983. ( 10. ) IN view of the aforesaid fact even assuming that the petitioner has been acquitted by the Criminal Court in relation to charge no. 1 yet for charge no. 3 penalty of removal from services has been imposed on him. Thus even after his acquittal no right is accrued in favour of the writ appellant for reinstatement. ( 11. ) THE order of acquittal passed in favour of the writ appellant is based upon the benefit of doubt which has been given to the writ appellant. The Apex Court in 2005 (5) SC 100 (Manager, Reserve Bank of India, Banglore Vs. S. Mani and others) in paragraphs 12,13 and 15 has held as under: - "12. It is trite that a judgment of acquittal passed in favour of the employees by giving benefit of doubt per se would not be binding upon the employer. The employer bad no occasion to initiate departmental proceeding against the Respondents. They were not regularly employed. They, according to the Appellant, filed forged and fabricated documents and as such were not found fit to be absorbed in regular service. The effect of a judgment of acquittal vis-a-vis the alleged misconduct on the part of the workmen fell for consideration before this Court in Bihari Lal Sidhana (supra)wherein it was held : "5. They, according to the Appellant, filed forged and fabricated documents and as such were not found fit to be absorbed in regular service. The effect of a judgment of acquittal vis-a-vis the alleged misconduct on the part of the workmen fell for consideration before this Court in Bihari Lal Sidhana (supra)wherein it was held : "5. It is true that the respondent was acquitted by the criminal court but acquittal does not automatically give him the right to be reinstated into the service. It would still be open to the competent authority to take decision whether the delinquent Government servant can be taken into service or disciplinary action should be taken under the Central Civil Services (Classification, Control and appeal) Rules or under the Temporary Service Rules. Admittedly, the respondent had been working as a temporary Government servant before he was kept under suspension. The termination order indicated the factum that he, by then, was under suspension. It is only a way of describing him as being under suspension when the order came to be passed but that does not constitute any stigma. Mere acquittal of Government employee does not automatically entitle the Government servant to reinstatement. As stated earlier, it would be open to the appropriate competent authority to take a decision whether the enquiry into the conduct is required to be done before directing reinstatement or appropriate action should be taken as per law, if otherwise, available. Since the respondent is only a temporary Government servant, the power being available under Rule 5 (1) of the Rules, it is always open to the competent authority to invoke the said power and terminate the services of the employee instead of conducting the enquiry or to continue in service a Government servant accused of defalcation of public money. Reinstatement would be a charter for him to indulge with impunity in misappropriation of public money. " 13 Recently in Krishnakali Tea Estate v. Akhil Bharatiya Chah Mazdoor sangh and Another [ (2004) 8 SCC 200 ], one of us, Santosh Hegde, J. speaking for a 3-Judge Bench observed : AIR 2004 SC 4647 : 2004 AIR SCW 5256 : 2004 lab IC 4074 "25. " 13 Recently in Krishnakali Tea Estate v. Akhil Bharatiya Chah Mazdoor sangh and Another [ (2004) 8 SCC 200 ], one of us, Santosh Hegde, J. speaking for a 3-Judge Bench observed : AIR 2004 SC 4647 : 2004 AIR SCW 5256 : 2004 lab IC 4074 "25. The next contention addressed on behalf of the respondents is that the Labour Court ought not to have brushed aside the finding of the criminal Court which according to the learned Single Judge "honourably" acquitted the accused workmen of the offence before it. We have been taken through the said judgment of the criminal Court and we must record. that there was such "honourable" acquittal by the criminal Court. The acquittal by the criminal Court was based on the fact that the prosecution did not produce sufficient material to establish its charge which is clear from the following observations found in the judgment of the criminal court: "absolutely in the evidence on record of the prosecution witnesses I have found nothing against the accused persons. The prosecution totally fails to prove the charges under Sections 147, 353, 329 IPC. " 26. Learned counsel for the respondents in regard to the above contention relied on a judgment of this Court in the case of capt. M. Paul Anthony. In our opinion, even that case would not support the respondents herein because in the said case the evidence led in the criminal case as well as in the domestic enquiry was one and the same and the criminal case having acquitted the workmen on the very same evidence, this Court came to the conclusion that the finding to the contrary on the very same evidence by the domestic enquiry would be unjust, unfair and rather oppressive. It is to be noted that in that case the finding by the tribunal was arrived at in an ex parte departmental proceeding. In the case in hand, we have noticed that before the Labour Court the evidence led by the management was different from that led by the prosecution in the criminal case and the materials before the criminal Court and the Labour Court were entirely different. Therefore, it was open to the Labour Court to have come to an independent conclusion dehors the finding of the criminal Court. . . Therefore, it was open to the Labour Court to have come to an independent conclusion dehors the finding of the criminal Court. . . " it was observed : (SCC P. 212, para 27)"27 From the above, it is seen that the approach and the objectives of the criminal proceedings and the disciplinary proceedings are altogether distinct and different. The observations therein indicate that the Labour Court is not bound by the findings of the criminal Court. " 15. The contention that the Respondents had not produced such certificates or the same have been fabricated at the instance of some officers of the Reserve Bank of India, therefore, does not find our acceptance. It is rejected accordingly. " ( 12. ) IN view of the law laid down by the Apex Court in case of S. Mani (supra)it cannot be said to be an hon ble acquittal to restrict the powers of the employer for not proceeding with the disciplinary action. ( 13. ) IN view of our aforesaid discussion, we do not find any error into the judgment passed by the learned Single Judge. ( 14. ) IN the present case according to charge no. 3 the petitioner was absent froml2/10/1978 till the issuance of charge sheet. There is nothing on record that the petitioner applied for the grant of leave which was sanctioned. The absence for such a long period by itself is enough to uphold the order of penalty of dismissal. The absence of the petitioner had been for a considerable long period. There is nothing on record that the petitioner applied for leave which was also granted. ( 15. ) THE Apex Court in Union of India and Others Vs. Datta Linga Toshatwad, 2005 (13) SCC 709 has considered the question of removal from services on the ground of absence and further held that the dismissal on ground of absence as such is a justified disciplinary action and cannot be described as disproportionate to the misconduct alleged. The relevant paragraphs 6. 7 and 8 from the aforesaid judgment are reproduced as under:-"6. One cannot ignore the large number of cases which come to this Court of members of uniformed forces remaining absent from duty without any reasonable explanation. The relevant paragraphs 6. 7 and 8 from the aforesaid judgment are reproduced as under:-"6. One cannot ignore the large number of cases which come to this Court of members of uniformed forces remaining absent from duty without any reasonable explanation. Whenever action is taken, the usual plea taken is of having been ill or some such false pretext, and even fake or false medical certificates are produced in support of such a plea. We would not have taken a serious view of the matter had it not been a case of a constable belonging to CRPF remaining absent for an indefinite period. Even if we assume that the respondent was suffering from depression and was being treated as an outdoor patient, the medical certificates produced by him show that he was restored to normalcy on 4-4-1998 yet the respondent did not choose to report for duty. The order of dismissal was passed seven months later i. e. on 2-11-1998. This itself discloses the hollowness of the claim of the respondent regarding mental depression and imbalance which he claims to have suffered. 7. Reliance was placed on a judgment of this Court in Union of India v. Giriraj Sharma (1994 Supp (3) SCC 755 : 1995 SCC (Lands) 290 : AIR 1994 SC 215 ), which was also a case of a constable employed in CRPF. In that ca$e the respondent had been punished by an order of dismissal for overstaying on leave by 12 days. The High Court took the view that for such misconduct the punishment of dismissal from service was not justified and was also harsh. This Court, while agreeing with the High Court, dismissed the appeal by holding that in the facts of the case, instead of a major penalty, a minor penalty would have been sufficient. 8. The present case is not a case of a constable merely overstaying his leave by 12 days. The respondent took leave from 16-6-1997 and never reported for duty thereafter. Instead he filed a writ petition before the High Court in which the impugned order has been passed. Members of the uniformed forces cannot absent themselves on frivolous pleas, having regard to the nature of the duties enjoined on these forces. Such indiscipline, if it goes unpunished, will greatly affect the discipline of the forces. In such forces desertion is a serious matter. Members of the uniformed forces cannot absent themselves on frivolous pleas, having regard to the nature of the duties enjoined on these forces. Such indiscipline, if it goes unpunished, will greatly affect the discipline of the forces. In such forces desertion is a serious matter. Cases of this nature, in whatever manner described, are cases of desertion particularly when there is apprehension of the member of the force being called upon to perform onerous duties in difficult terrains or an order of deputation which he finds inconvenient, is passed. We cannot take such matters lightly, particularly when it relates to uniformed forces of this country. A member of a uniformed force who overstays his leave by a few days must be able to give a satisfactory explanation. However, a member of the force who goes on leave and never reports for duties thereafter, cannot be said to be one merely overstaying his leave. He must be treated as a deserter. He appears on the scene for the first time when he files a writ petition before the High Court, rather than reporting to his commanding Officer. We are satisfied that in cases of this nature, dismissal from the force is a justified disciplinary action and cannot be described as disproportionate to the misconduct alleged. " ( 16. ) THE Apex Court in 2008 (8) SCC 469 (State of Punjab Vs. Dr. PL. Singla)in paragraph 14 has held as under: "14. Where the employee who is unauthorizedly absent does not report back to duty and offer any satisfactory explanation, or where the explanation offered by the employee is not satisfactory, the employer will take recourse to disciplinary action in regard to the unauthorized absence. Such disciplinary proceedings may lead to imposition of punishment ranging from a major penalty like dismissal or removal from service to a minor penalty like withholding of increments without cumulative effect. The extent of penalty will depend upon the nature of service, the position held by the employee, the period of absence and the cause/explanation for the absence. Where the punishment is either dismissal or removal, it may not be necessary to pass any consequential orders relating to the period of unauthorized absence (unless the rules require otherwise ). The extent of penalty will depend upon the nature of service, the position held by the employee, the period of absence and the cause/explanation for the absence. Where the punishment is either dismissal or removal, it may not be necessary to pass any consequential orders relating to the period of unauthorized absence (unless the rules require otherwise ). Where the punishment awarded for the unauthorized absence, does not result in sererance of employment and the employee continues in service, it will be necessary to pass some consequential order as to how the period of absence should be accounted for and dealt with in the service record. If the unauthorized absence remains unaccounted it will result in break in service, thereby affecting the seniority, pension, pay, etc. of the employee. Any consequential order directing how the period of absence should be accounted, is an accounting and administrative procedure, which does not affect or supersede the order imposing punishment. " ( 17. ) IN view of the aforesaid it is clear that leave cannot be presumed or inferred, the onus lies on the employee to prove that he had actually sent leave application. The Apex Court in the said judgment further held. that for the misconduct of unauthorized absence depends upon the duration of the absence. The Apex Court further held that the employee who is unauthorizedly absent then while making the inquiry the employer has to consider the explanation offered and keeping in view the explanation it may lead to imposition of punishment ranging from major penalty like dismissal or removal from service to a minor penalty. The extent of penalty will depend upon the nature of service, the position held by employee, period of absence and the cause/explanation for the absence. In the present case the explanation which was offered by the petitioner was that he has taken leave on 13/10/1978 and return to duty on 16/10/1978. He further submitted that after 16/10/1978 he was not permitted to join his duties and was falsely implicated in criminal case. ( 18. ) THE aforesaid defence was not found proved by the Inquiry Officer and the inquiry Officer held him guilty of the charges. He joined duty after 4 years 7 months on 25/05/1983 when he was suspended. The findings of the Inquiry Officer have been placed on record. ( 18. ) THE aforesaid defence was not found proved by the Inquiry Officer and the inquiry Officer held him guilty of the charges. He joined duty after 4 years 7 months on 25/05/1983 when he was suspended. The findings of the Inquiry Officer have been placed on record. The Inquiry Officer relied upon the statement of one witness Shri M. S Yadav (PW-4), who stated that the petitioner does not turn up his duty on 16/10/1978 as he was not seen in the office. With regard to the nature of post though the petitioner was LDC but was carrying out the duties of accounts and because of absence of the petitioner the important work such as account shall certainly suffer. ( 19. ) ON the basis of the findings recorded by the Inquiry Officer it is not a case where explanation was offered by the petitioner. It appears that the petitioner since came to know that there had a FIR lodged against him, therefore he has chosen to remain absconding by not reporting to his office and subsequently has made out a case that he was not permitted to join in the office. ( 20. ) NO other point is argued. ( 21. ) IN view of the aforesaid discussion ad the law laid down by the Apex court we do not find any case for interference and the petition stands dismissed. Appeal dismissed.