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Punjab High Court · body

2008 DIGILAW 1641 (PNJ)

Sunil Kumar Sharma v. Oriental Insurance Company

2008-09-23

M.M.KUMAR, RAKESH KUMAR GARG

body2008
Judgment M.M.Kumar, J. 1. This petition filed under Article 226 of the Constitution challenges orders dated 23.4.2008 and 25.9.2007 (P-1 and P-1/A) passed by the Deputy General Manager-Appellate Authority (respondent No. 3) and the Chief Regional Manager-punishing authority respectively. The punishing authority has inflicted the punishment of removal from service which was not to be a disqualification for future employment, vide order dated 25.9.2007. The order has been affirmed vide order dated 23.4.2008 passed by the Appellate Authority while rejecting the appeal preferred by the petitioner. 2. Brief facts of the case are that criminal proceedings were initiated against the petitioner after registration of case bearing R.C. No. 19 of 18.6.2001, under Section 7, 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 (for brevity, the Act), at Police Station CBI, Chandigarh. The allegation against the petitioner are that while posted as a Development Officer in Branch Office at Nangal of the respondent Oriental Insurance Company, he demanded Rs. 3,000/- as bribe for release of cheque of claim of insurance of cow from the complainant Shri Kulbir Singh. On the basis of the complaint made by Shri Kulbir Singh, the Vigilance Bureau, Punjab laid a trap and the petitioner was caught red handed. As a consequence, initially FIR No. 10, dated 19.2.2001, under Section 7, 13(1)(d) read with Section 13(2) of the Act was registered by the Vigilance Bureau, Punjab, which was later on converted into R.C. No. 19 of 18.6.2001, when the Chief Director-cum-Additional Director General of Police, Vigilance Bureau, Punjab, requested the Superintendent of Police, CBI, Chandigarh, to take up the investigation, vide his letter dated 21.5.2001 (P-3). It has come on record that the FIR registered against the petitioner culminated in filing of report under Section 173 Cr.P.C. (P-4). On the submission of report requesting for closure of the case, the Special Judge, C.B.I. declined the request and ordered further, investigation. A copy of the order dated 29.7.2003 has been placed on record as Annexure P-5. Eventually the matter was adjourned sine the by the Special Judge, C.B.I. on 19.3.2005. Again on 1.8.2007, an application by the C.B.I, was filed and a request was made for closure of the case along-with final report (P-17). The application was allowed by the Special Judge, C.B.I. (P-18). Eventually the matter was adjourned sine the by the Special Judge, C.B.I. on 19.3.2005. Again on 1.8.2007, an application by the C.B.I, was filed and a request was made for closure of the case along-with final report (P-17). The application was allowed by the Special Judge, C.B.I. (P-18). A perusal of the order dated 29.7.2003 shows that on account of contradictions in evidence the Special Judge, CBI had ordered further probe and investigation. However, when the application for closure of the case was made alongwith the final report the same was accepted for the reason that sanction under Section 19 of the Act was not accorded. The concluding paras of the order reads thus: Section 19 of the Prevention of Corruption Act provides that no Court shall take cognizance of an offence punishable under Section 7, 10, 11, 13 and 15 alleged to have been committed by a public servant, except with the previous sanction of the Central Govt./State Govt. competent authority as the case may be. Whereas in the instant case, the competent authority is stated to have declined to grant sanction for prosecution of Sunil Kumar Sharma accused who was working as development officer, Oriental Insurance Company, Nanagal at the relevant time, as such coming within the definition of a public servant. In the absence of the sanction for prosecution being granted by the competent authority, the cognizance of the offence against him cannot be taken by this Court. As far as Ravi Dutt accused is concerned, role assigned to him is that of abatement, having received the tainted currency notes from Sunil Kumar Sharma accused after he accepted the same from the complainant as illegal gratification. Since for want of giving previous sanction for prosecution, the cognizance of offence against Sunil Kumar Sharma main accused cannot be taken and therefore, it would be unjust appropriate to make Ravi Dutt to face trial when it is not so as regards the main accused. In view of the detailed position explained above, the request of the CBI for closure of the case is hereby accepted. The remaining records be returned to the CBI against a proper receipt. A copy of this order be supplied to the CBI. The file be consigned to the record room. In view of the detailed position explained above, the request of the CBI for closure of the case is hereby accepted. The remaining records be returned to the CBI against a proper receipt. A copy of this order be supplied to the CBI. The file be consigned to the record room. The afore mentioned circumstances would show that there was no trial before the Special Judge, C.B.I. and there could be no question of recording any finding. The criminal case could not proceed for want of sanction under Section 19 of the Act. 3 However, on account of registration of criminal case and arrest of the petitioner for more than 48 hours, he was placed under suspension by the Manager and Disciplinary Authority of the respondent Corporation in exercise of the powers conferred by Rule 20(2) of the General Insurance (Conduct, Discipline and Appeal) Rules, 1975 (for brevity, the Rules), vide order dated 23.2.2001 (P-7). However, the suspension of the petitioner was revoked later on vide order dated18.2.2002 (P-9). 4. On 17.5.2002, major penalty proceedings were initiated against the petitioner and a charge sheet was served upon him under Rule 25 of the Rules (P-8). After holding regular departmental proceedings against the petitioner, the Enquiry Officer submitted his report dated 3.5.2007 wherein he was found guilty of the charges levelled against, him. On 8.5.2007, the petitioner submitted his representation against the findings recorded in the enquiry report raising the issues that the original listed documents were not produced during enquiry proceedings; defence documents were not shown to him; he was not allowed to appear as his defence witness during enquiry proceedings; and that the FIR lodged against him by the CBI was dropped on the basis of an application filed by the CBI in the Court. The Appointing-cum-Disciplinary Authority while disagreeing with the defence taken by the petitioner passed the impugned order dated 25.9.2007 punishing the petitioner and inflicting upon him the punishment of removal from service, which was not to be considered as disqualification for future employment (P-1/A). 5. Feeling aggrieved, the petitioner preferred an appeal under Rule 31 of the Rules on 22.10.2007 (P-16), which has been rejected by the Appellate Authority vide order dated 23.4.2008 (P-1). 6. 5. Feeling aggrieved, the petitioner preferred an appeal under Rule 31 of the Rules on 22.10.2007 (P-16), which has been rejected by the Appellate Authority vide order dated 23.4.2008 (P-1). 6. The principal ground urged by the learned Counsel for the petitioner is that once the investigating agency-CBI has itself failed to substantiate the offence against the petitioner and has filed closure report, which has been duly accepted by the learned Special Judge, CBI, vide order dated 1.8.2007 (P-18) then charges could not be gone into in a departmental enquiry. She has further argued that the departmental proceedings against the petitioner should have been dropped once the criminal case against him stands closed by the Court because no charge has been, proved. 7. Having heard learned Counsel at a considerable length and perusing the paper book with her able assistance we find that there is no merit in the instant petition and the same, deserves to be dismissed. The law on the subject as to whether acquittal in criminal trial would result into automatic exoneration in departmental proceedings stand crystallised. It has been repeatedly held that there is no such rule of law because born the proceedings proceed on different considerations. The principal distinctions are that the standard of proof in criminal trial is markedly different than the one required in disciplinary proceedings. Secondly, the object of criminal trial is to segregate the accused from rest of the society so as to reform him by divesting him of his criminality. It is the State function to subject an accused to criminal trial and for that reason an employer cannot be subjected to any adverse consequences. In that regard reliance may be placed on a catena of judgments, namely, Mithilesh Singh v. Union of India; B.C. Chaturvedi v. Union of India; Om Kumar v. Union of India (2001) 2 S.C.C. 386; Ajit Kumar Jog v. Indian Oil Corporation; Chairman-cum-M.D., T.N.C.S. Corporation Ltd. v. K. Meerabai; Commissioner of Police, New Delhi v. Narender Singh; Govind Das v. State of Bihar; and Union of India v. Bihari Lal Sidhana. 8. In the present case there was no acquittal on recorded finding by the criminal court that the petitioner did not indulge in criminal act of illegal gratification punishable under the Act. 8. In the present case there was no acquittal on recorded finding by the criminal court that the petitioner did not indulge in criminal act of illegal gratification punishable under the Act. The C.B.I. was not able to persuade the department concerned for according sanction under Section 19 of the Act to prosecute the petitioner. Once there is no trial and finding in favour of the petitioner it cannot be concluded that the petitioner has been subjected to disciplinary proceedings for the same set of allegations for which he has already undergone trial before the criminal Court. Therefore the principle of law that if the evidence, witnesses and documents alongwith charges are the same then no departmental proceedings could be held would not at the first place apply to the facts of the present case. Even otherwise mere is no rule of law that in every case where the charges, witnesses and evidence in criminal case are the same than the departmental proceedings could not be initiated. 9. The judgment of Honble the Supreme Court in the case of G.M. Tank v. State of Gujarat A.I.R. 2006 S.C. 2129, on which reliance has been placed by learned Counsel for the petitioner, would not come to the rescue of the petitioner. In the present case, it is conceded position that no trial has actually taken place against the petitioner as no charges have been framed against him, whereas in the departmental proceedings after following detailed procedure he has been found guilty of the charges levelled against him. The respondents issued him charge sheet under Rule 25 of the Rules. He has been found guilty by the Enquiry Officer. After furnishing him enquiry report and opportunity of personal hearing the punishing authority has inflicted the punishment of removal from service which was not to be considered as disqualification for future employment The principle of law laid down in the cited case that the findings to the contrary recorded in the departmental proceedings than the one recorded in the Criminal Trial can be quashed, cannot be extended to the facts of the present case as the punishment cannot be considered to be shockingly disproportionate to the misconduct committed by the petitioner. There is, thus, no merit in the instant petition. 10. No other argument has been addressed nor any violation of rules/regulations has been pointed out for warranting admission of the petition. 11. There is, thus, no merit in the instant petition. 10. No other argument has been addressed nor any violation of rules/regulations has been pointed out for warranting admission of the petition. 11. The writ petition is wholly mis-conceived. 12. In view of above, the writ petition fails and the same is dismissed.