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2010 DIGILAW 380 (PAT)

Ram Krit Sah v. State Of Bihar

2010-03-16

NAVIN SINHA

body2010
JUDGEMENT 1. Heard learned counsel for the petitioner and learned counsel for the State. 2. Counter affidavit has been filed on behalf of the State. 3. Allegations were made against the petitioner for demand of illegal gratification of Rs. 1,000.00 for recommending names from the Employment Exchange for appointment in the Hindustan Fertilizer Corporation at Barauni, while he held the post of Director of Employment Exchange, Begusarai and was the person competent to recommend names of unemployed youths. The two youths in question were Md. Aminuddin Ashraf and Md. Ibrar. 4. Begusarai (Town) P.S. Case No. 222/92 was registered on the fardbeyan recorded on 27.7.1992 of the said Md. Aminuddin. Charge-sheet was submitted and the trial was registered as Special Case No. 1/06. The petitioner came to be acquitted by judgment dated 24.7.1999. Departmental proceedings were then initiated against him on the same very charges on 28.6.2002. The petitioner questioned the same in C.W.J.C. No. 8822/02 on grounds of exoneration in the criminal trial as also the delay in initiation of the proceedings after nearly 10 years. This Court noticed the stand of the State that the pendency of the proceeding would not affect the chances of the petitioner for future consideration of promotion in view of the criminal court judgment as also the challenge to the proceedings on grounds of staleness. It, however, observed that these were matters to be more appropriately considered by the authorities themselves since the petitioner had already filed his show cause. The enquiry report then came to be submitted returning a finding of guilt on preponderance of probability leading to the issuance of a second show cause notice on 28.11.2003. The petitioner is stated to have filed his reply to the same also. He then came to this Court in the present application. On 28.4.2004 this Court directed that no further action shall be taken against the petitioner in pursuance of the enquiry report. Matters have rested at that stage in the departmental proceeding. 5. This Court finds that this writ application can appropriately be disposed of on one issue only and therefore there is no need to go into other issues with regard to alleged procedural irregularities in the departmental proceeding, the staleness of the proceedings etc. 6. The charge in the criminal case was for demanding illegal gratification from Md. Aminuddin Ashraf and Md. 6. The charge in the criminal case was for demanding illegal gratification from Md. Aminuddin Ashraf and Md. Ibrar, P.W. 1 and P.W. 2 for recommending names from the Employment Exchange for appointment as an apprentice in the Hindustan Fertilizer Corporation, Barauni as appointments were made only on the recommendation of the Employment Exchange. In the departmental proceeding the sole charge was that he was caught red-handed while accepting illegal gratification of Rs. 1000.00 for appointment in the Hindustan Fertilizer Corporation, Barauni. 7. Thus, the allegations in the criminal trial and the departmental proceedings were on the same issue and integrally connected. The petitioner denied the charges in the departmental proceeding. The enquiry officer held on preponderance of probability that the petitioner had received the illegal gratification in a bag and was caught red-handed and sent to jail. He opines that in the criminal trial the allegations were not proved beyond all reasonable doubts and then proceeds to arrive at a conclusion of the realities of life, the handicaps of the Vigilance Department, the limitations of the office of the District Magistrate etc. to hold that on an aggregate evaluation of matters and on a preponderance of probability the petitioner appeared guilty. 8. Learned counsel for the petitioner submitted that once the charges in the criminal trial and the departmental proceedings were the same and he has been acquitted in the criminal trial, for which the evidence was also common when the Department failed to prove the allegations in the criminal trial, there shall be no justification for continuance of the proceedings. It was submitted that in the criminal trial, the alleged seizure of the money from the petitioner, much less, recovery of the same was not proved and the bag or the money both were not even produced as exhibits and marked in the trial. No oral evidence was led in the departmental proceedings and no witnesses examined. On the contrary in the criminal trial eight witnesses including the two persons from whom gratification was demanded were also examined. The enquiry report and the counter afidavit do not state any reason why oral evidence was not led in the departmental proceeding to support the charge. The eason is obvious once the official witnesses did not support the charge in a court of law. 9. The enquiry report and the counter afidavit do not state any reason why oral evidence was not led in the departmental proceeding to support the charge. The eason is obvious once the official witnesses did not support the charge in a court of law. 9. Learned counsel for the Union of India submitted that once the reply to the second show cause notice has been filed, all aspects may be considered by the departmental authorities. Acquittal in a criminal trial does not ipso facto lead to exoneration in the departmental proceedings and this Court may not entertain the application at this stage. 10. There car be no uniform yardstick to hold that exoneration in a criminal trial ipso facto leads to exoneration in the departmental proceedings also. The purpose and scope of the two are different. Acquittal in a criminal trial can still justify pendency and continuance of a departmental proceeding and an order of punishment. But, the matters shall become entirely different when the charges are common and the evidence is common. If in a criminal trial where full evidence is led, cross-examination is permitted, exhibits are to be produced, the charges have not been proved so much so that the allegedly illegally seized money and the bag in which it was allegedly kept could not be proved, much less marked as an exhibit, the respondents have much to answer. The finding of the enquiry officer that the realities of life in a regional office, the handicaps in the Vigilance Department, the limitations of the office of the District Magistrate, are nothing else but an effort to shield those who may have allowed the judgment to come. If proper evidence was not led, exhibits not produced, when the charges were the same, this Court finds it difficult to give advantage to the respondents for their own misconduct in the criminal trial to indict the petitioner in the departmental proceeding. The enquiry officer therefore arrived at a conclusion on what he terms as "an aggregate evaluation" to hold a preponderance of probability. He records no finding of guilt on the charge of his having been apprehended red-handed which obviously became non est in the findings of the criminal court. The charge therefore remained in the realm of suspicion or speculation. 11. He records no finding of guilt on the charge of his having been apprehended red-handed which obviously became non est in the findings of the criminal court. The charge therefore remained in the realm of suspicion or speculation. 11. The failure of the respondents to produce the money as an exhibit, which was allegedly seized from the petitioner, the bag in which it was kept or to lead evidence of the person who made such alleged seizure during trial makes it legally unacceptable to uphold the finding of the enquiry officer on the euphemism of "preponderance of probabilities". If in the criminal trial, on similar allegations, materials exhibits were not produced, witnesses not forthcoming, this Court finds it difficult to hold that notwithstanding his acquittal on merits thereunder, the petitioner can still be subjected to punishment in the departmental proceedings. 12. This Court has gone through the judgement in the criminal trial appended to the writ application. This Court is satisfied from a perusal of the same that it is not a judgment based on benefit of doubt to the petitioner, but it is more a judgment of acquittal on merits the answerability for which lies with the respondents. The very bottom of the allegations is knocked out from paragraph-17 of the judgment where the court arrived at a finding that there was nothing before it to show that there was any vacancy in the Hindustan Fertilizer Corporation, Barauni. That Md. Aminuddin Ashraf was not registered in the Employment Exchange, much less that Md. Aminuddin Ashraf and Md. Ibrar were interested in getting their names recommended, combined with the failure of the prosecution to produce as exhibits and prove recovery and seizure of the bribe money, or the bag in-which it was allegedly kept all of which resulted in the acquittal of the petitioner. P.W. 6, by whom the alleged seizure is alleged has not been examined as a witness. No Phynopthelin powder was used on the currency notes to prove that the money was handled by the accused. 13. The Supreme Court in (1999) 3 SCC 679 (Capt. M. Paul Anthony V/s. Bharat Gold Mines Ltd. and Another) the conflict between the findings of a criminal court and departmental proceedings in paragraph-12 as follows: "12. No Phynopthelin powder was used on the currency notes to prove that the money was handled by the accused. 13. The Supreme Court in (1999) 3 SCC 679 (Capt. M. Paul Anthony V/s. Bharat Gold Mines Ltd. and Another) the conflict between the findings of a criminal court and departmental proceedings in paragraph-12 as follows: "12. This question, as observed earlier, is of a perennial nature and has arisen more often than not in spite of the judicial pronouncements, specially by this Court, having settled the question and provided the answer. Still, the problem is raised either by the employer or by the employee in one or the other form. In the instant case, the order of dismissal had already been passed before the decision of the criminal case which ultimately resulted in the acquittal of the appellant. Whether the acquittal coupled with other circumstances, specially ex parte proceedings, of the case, will have the effect of vitiating the departmental proceedings or the order of dismissal passed against the appellant, is the question which is to be considered in this appeal." 14. The Supreme Court then observed at paragraph-34 as follows: "34. 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 articles therefrom". 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." 15. In R.P. Kapur V/s. Union of India, AIR 1964 SC 787 , a Constitution Bench of the Supreme Court has held that "if the trial of the criminal charge results in conviction, disciplinary proceedings are bound to follow against the public servant so convicted. Even in case of acquittal proceedings may follow, where the acquittal is other than honourable". 16. Similar is the view taken in AIR 1984 SC 626 , Corporation of the City of Nagpur V/s. Ramchandra. 17. In (2006) 5 SCC 446 , G.M. Tank V/s. State of Gujarat, the Apex Court at paras 31 and 32 held as follows: "31. The judgments relied on by the learned counsel appearing for the respondents are distinguishable on facts and on law. In this case, the departmental proceedings and the criminal case are based on identical and similar set of facts and the charge in a departmental case against the appellant and the charge before the Criminal Court are one and the same. It is true that the nature of charge in the departmental proceedings and in the criminal case is grave. The nature of the case launched against the appellant on the basis of evidence and material collected against him during enquiry and investigation and as reflected in the charge- sheet, factors mentioned are one and the same. In other words, charges, evidence, witnesses and circumstances are one and the same. In the present case, criminal and departmental proceedings have already noticed or granted on the same set of facts namely, raid conducted at the appellants residence, recovery of articles therefrom. The Investigating Officer, Mr. In other words, charges, evidence, witnesses and circumstances are one and the same. In the present case, criminal and departmental proceedings have already noticed or granted on the same set of facts namely, raid conducted at the appellants residence, recovery of articles therefrom. The Investigating Officer, Mr. V.B. Raval and other departmental witnesses were the only witnesses examined by the Enquiry Officer who by relying upon their statement came to the conclusion that the charges were established against the appellant. The same witnesses were examined in the criminal case and the criminal court on the examination came to the conclusion that the prosecution has not proved the guilt alleged against the appellant beyond any reasonable doubt and acquitted the appellant by his judicial pronouncement with the finding that the charge has not been proved. It is also to be noticed the judicial pronouncement was made after a regular trial and on hot contest. Under these circumstances, it would be unjust and unfair and rather oppressive to allow the findings recorded in the departmental proceedings to stand." "32. In our opinion, such facts and evidence in the department as well as criminal proceedings were the same without there being any iota of difference, the appellant should succeed. The distinction which is usually proved between the departmental and criminal proceedings on the basis of the approach and burden of proof would not be applicable in the instant case. Though finding recorded in the domestic enquiry was found to be valid by the Courts below, when there was an honourable acquittal of the employee during the pendency of the proceedings challenging the dismissal, the same requires to be taken note of and the decision in Paul Anthonys case (supra) will apply. We, therefore, hold that the appeal filed by the appellant deserves to be allowed." 18. That brings the question whether the matter should be remanded to the authorities to conclude the departmental proceedings or not. 19. The matter has remained pending with this Court with an interim order since 2004. The respondents have filed their counter affidavit. The challenge in the writ petition is specific that the charges in the departmental proceedings and the criminal trial were the same. The petitioner has been acquitted in the criminal trial. All these essential facts have not been denied in the counter affidavit. 20. The respondents have filed their counter affidavit. The challenge in the writ petition is specific that the charges in the departmental proceedings and the criminal trial were the same. The petitioner has been acquitted in the criminal trial. All these essential facts have not been denied in the counter affidavit. 20. This Court, in the facts and circumstances of the case, is satisfied that no useful purpose is going to be served by disposing this writ petition with the direction to conclude the departmental proceedings once the issues are now clearly before this Court on a question of law undisputed from the counter affidavit also. 21. The interim order dated 28.4.2004 is therefore made absolute. The respondents are precluded permanently from taking any further action on the charge against the petitioner in view of his acquittal in the criminal case on the same charges. This Court has arrived at this conclusion after adequate consideration of the case of the respondents when they have been unable to demonstrate any distinguishing feature during the departmental proceeding from that in the criminal trial to persuade this Court to direct that notwithstanding his acquittal in the criminal trial the departmental proceedings must be allowed to go to its logical conclusion. 22. The petitioner has superannuated on 28.2.2010. 23. The writ application stands allowed. 24. In C.W.J.C. No. 13413/2000 the claim is to be considered for promotion to the post of Assistant Director, Employment and Training and consequently Deputy Director, Employment and Training. In view of the order passed in C.W.J.C. No. 54/04 the respondents are now directed to consider his claims in C.W.J.C. No. 13413/2000 in accordance with law, from the date his juniors may have been promoted. 25. Let the petitioner file an appropriate representation alongwith a copy of the present order when the respondents will consider his claim for promotion in accordance with law and pass a final appropriate orders within a maximum period of four months, including revision of his pensionary benefits etc. after consideration of his claim for promotion.