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Himachal Pradesh High Court · body

2011 DIGILAW 306 (HP)

Roshan Lal v. Himachal Road Transport Corporation

2011-01-07

RAJIV SHARMA

body2011
JUDGMENT Rajiv Sharma, J. Petitioner was appointed as driver in the respondent-Corporation in the year 1986. Disciplinary proceedings were initiated against him under Rule 14 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 vide memorandum dated 4.12.1993 (Annexure A-4). Inquiry Officer was appointed. He completed the inquiry and submitted the report to the disciplinary authority on 6.1.2003. Thereafter the disciplinary authority imposed the penalty of compulsory retirement from service upon the petitioner. The petitioner filed original application No.2951 of 2004 assailing the imposition of penalty of compulsory retirement vide order dated 1.5.2003. Same was directed to be treated as representation by the Managing Director of the respondent-Corporation by the erstwhile learned Himachal Pradesh Administrative Tribunal on 7.10.2004. Thereafter the Managing Director of the respondent-Corporation dismissed the same on 5th November, 2004 (Annexure A-2). 2. Mr. Lokender Paul Thakur, learned counsel for the petitioner has strenuously argued that Annexure A-2, dated November, 2004 is neither speaking nor reasoned. According to him, the imposition of penalty is disproportionate to the alleged mis-conduct. Mr. Adarsh Sharma, learned counsel for the respondents has supported the imposition of penalty vide office order dated 1st May, 2003 and also office order dated 5th November, 2004. 3. I have heard the learned counsel for the parties and gone through the pleadings carefully. 4. Petitioner was driving bus No.HP-14-3303, which met with an accident near Nal Dehra on 11.8.1993. Fourteen passengers died in the accident. F.I.R. was also registered and challan was put up in the Court of Judicial Magistrate (III), Shimla. He acquitted the accused on 24.8.1998. The petitioner has failed to point out any illegality or perversity in the inquiry report dated 6th January, 2003. He has been associated with the inquiry. Both the charges were duly proved against the petitioner as per inquiry report dated 6th January, 2003. The order of imposition of penalty upon the petitioner of compulsory retirement has been passed after the petitioner has been permitted to file reply to the memorandum dated 14.3.2003. He has filed reply to the same on 11.3.2003. The penalty of compulsory retirement imposed upon the petitioner is neither disproportionate nor harsh or oppressive. It is commensurate with the alleged misconduct. Order dated 5th November, 2004 is self speaking and reasoned one. He has filed reply to the same on 11.3.2003. The penalty of compulsory retirement imposed upon the petitioner is neither disproportionate nor harsh or oppressive. It is commensurate with the alleged misconduct. Order dated 5th November, 2004 is self speaking and reasoned one. The contentions raised by the petitioner in his reply to the memorandum dated 14.3.2003 have been duly considered by the Managing Director of the respondent-Corporation. 5. Mr. Lokender Paul Thakur, learned counsel for the petitioner has also argued in addition to the submissions made hereinabove that since the petitioner has been acquitted in criminal case No.58 of 98/94 on 24.8.1998, the penalty of compulsory retirement imposed upon his client on the basis of the disciplinary proceedings is illegal and arbitrary. There is no merit in this contention of the learned counsel for the petitioner. The scope of criminal and departmental proceedings is distinct. In a criminal case, the charges are required to be proved beyond all reasonable doubt and in the departmental proceedings, the charge is required to be proved in preponderance of probabilities. It is also settled law that the departmental proceedings are not required to be dropped or discontinued after the acquittal of an employee. 6. Their Lordships of Hon’ble Supreme Court in Commissioner of Police, New Delhi versus Narender Singh, (2006) 4, SCC 265 have held that if an employee has been acquitted of a criminal charge, the same by itself would not be a ground not to initiate or drop a departmental proceedings against him. Their Lordships of the Hon’ble Supreme Court have held as under (para 13):- “It is now well-settled by reason of a catena of decisions of this Court that if an employee has been acquitted of a criminal charge, the same by itself would not be a ground not to initiate a departmental proceeding against him or to drop the same in the event an order of acquittal is passed.” 7. Their Lordships of Hon’ble Supreme Court in Suresh Pathrella versus Oriental Bank of Commerce, (2006) 10, SCC 572 have held that acquittal in a criminal case would be no bar for drawing up a disciplinary proceedings against the delinquent officer. The yardstick and standard of proof in a criminal case is different from the disciplinary proceedings. Their Lordships of Hon’ble Supreme Court in Suresh Pathrella versus Oriental Bank of Commerce, (2006) 10, SCC 572 have held that acquittal in a criminal case would be no bar for drawing up a disciplinary proceedings against the delinquent officer. The yardstick and standard of proof in a criminal case is different from the disciplinary proceedings. While the standard of proof in a criminal case is a proof beyond all reasonable doubt, the proof in a departmental proceeding is preponderance of probabilities. Their Lordships of the Hon’ble Supreme Court have held as under (para 11):- “In our view, the findings recorded by the learned Single Judge are fallacious. This Court has taken the view consistently that acquittal in a criminal case would be no bar for drawing up a disciplinary proceeding against the delinquent officer. It is well settled principle of law that the yardstick and standard of proof in a criminal case is different from the disciplinary proceeding. While the standard of proof in a criminal case is a proof beyond all reasonable doubt, the proof in a departmental proceeding is preponderance of probabilities.” 8. Their Lordships of Hon’ble Supreme Court in General Manager, UCO Bank and another versus M. Venu Ranganath, (2007) 13 SCC 251 have held that departmental proceedings and criminal proceedings operate in different fields. There is no bar against initiation of disciplinary proceedings even if a person is acquitted in criminal trial. Their Lordships of Hon’ble Supreme Court have held as under (para 8):- “There can be no doubt that criminal proceedings and departmental proceedings operate in different fields. Even though the person may have been acquitted in a criminal trial, there is no embargo on his being departmentally proceeded against. But the question here is slightly different. The relevant provisions need to be quoted: "11. Special procedure in certain cases.– Notwithstanding anything contained in regulation 6 or regulation 7 or regulation 8 the Disciplinary Authority may impose any of the penalties specified in regulation 4 if the officer/employee has been convicted on a criminal charge, or on the strength of facts or conclusions arrived at by a judicial trial. 12. Special procedure in certain cases.– Notwithstanding anything contained in regulation 6 or regulation 7 or regulation 8 the Disciplinary Authority may impose any of the penalties specified in regulation 4 if the officer/employee has been convicted on a criminal charge, or on the strength of facts or conclusions arrived at by a judicial trial. 12. Suspension.– (1) An officer employee may be placed under suspension by the competent authority– (a) where a disciplinary proceeding against him is contemplated or is pending; or (b) where a case against him in respect of any criminal offence is under investigation, inquiry or trial. (2) An officer/employee shall be deemed to have been placed under suspension by an order of the competent authority – (a) with effect from the date of his detention, if he is detained in custody, whether on a criminal charge or otherwise, for a period exceeding forty-eighty hours; (b) with effect from the date of conviction, if in the event of a conviction for an offence, he is sentenced to a term of imprisonment exceeding forty-eight hours and is not forthwith dismissed or removed or compulsorily retired consequent to such conviction. Explanation. – The period of forty-eight hours referred to in clause (b) of this sub-regulation shall be computed from the commencement of the imprisonment after the conviction and for this purpose, intermittent periods of imprisonment, if any, shall be taken into account. (3) Where a penalty of dismissal, removal or compulsory retirement from service imposed upon an officer employee under suspension is set aside in appeal or on review under these regulations and the case is remitted for further inquiry or action or with any directions, the order of his suspension shall be deemed to have continued in force on and from the date of the original order of dismissal, removal or compulsory retirement and shall remain in force until further orders. (4) Where a penalty of dismissal, removal or compulsorily retirement from service imposed upon an officer employee under suspension is set aside or declared or rendered void in consequence of or by a decision of a court of law, and the disciplinary authority, on consideration of the circumstances of the case, decides to hold further inquiry against him on the allegations on which the penalty of dismissal, removal or compulsory retirement was originally imposed, the officer employee shall be deemed to have been placed under suspension by the competent authority from the date of the original order of dismissal, removal or compulsory retirement and shall continue to remain under suspension until further orders. (5)(a) An order of suspension made or deemed to have been made under this regulation shall continue to remain in force until it is modified or revoked by the authority competent to do so. (b) An order of suspension made or deemed to have been made under this regulation may at any time be modified or revoked by the authority which made or is deemed to have made the order." 15. Pay, allowances and treatment of service on termination of suspension.– (1) Where the competent authority holds that the officer employee has been fully exonerated or that the suspension was unjustifiable, the officer employee concerned shall be granted the full pay to which he would have been entitled had he not been suspended, together with any allowance of which he was in receipt immediately prior to his suspension, or may have been sanctioned subsequently and made applicable to all officer employees. (2) In all cases other than those referred to in sub-regulation (1), the officer employee shall be granted such proportion of pay and allowances as the Competent Authority may direct; Provided that the payment of allowances under this sub-regulation shall be subject to all other conditions to which such allowances are admissible: Provided further that the pay and allowances granted under this sub-regulation shall not be less than the subsistence and other allowances admissible under regulation 14. 3(a) In a case falling under sub-regulation (1) the period of absence from duty shall, for all purposes, be treated as a period spent on duty; (b) In a case falling under sub-regulation (2), the period of absence from duty shall not be treated as a period spent on duty unless the Competent Authority specifically directs, for reason to be recorded in writing, that it shall be so treated for any specific purpose. Clause 22.8 of the Manual "22.8 Where a suspended officer employee has been fully exonerated in the departmental enquiry or acquittal by the court of law of the charges levelled against him the competent authority holds that the suspension was unjustifiable, he would be entitled to all benefits to which he would have been normally entitled, had he been on duty. However, the employee in such a case would not be entitled to accumulate leave beyond the permissible limit." 9. Similarly, their Lordships of the Apex Court in State Bank of Hyderabad and another versus P. Kata Rao, (2008) 15 SCC 657 have held that only because the delinquent employee who was also facing a criminal charge stands acquitted, the same, by itself, would not debar the disciplinary authority in initiating a fresh departmental proceeding and/or where the departmental proceedings had already been initiated, to continue therewith. Their Lordships of the Apex Court have held as under (paras 18 and 20):- “There cannot be any doubt whatsoever that the jurisdiction of superior courts in interfering with the finding of fact arrived at by the enquiry officer is limited. The High Court, it is trite, would also ordinarily not interfere with the quantum of punishment. There cannot, furthermore, be any doubt or dispute that only because the delinquent employee who was also facing a criminal charge stands acquitted, the same, by itself, would not debar the disciplinary authority in initiating a fresh departmental proceeding and/or where the departmental proceedings had already been initiated, to continue therewith. The legal principle enunciated to the effect that on the same set of facts the delinquent shall not be proceeded in a departmental proceedings and in a criminal case simultaneously, has, however, been deviated from. The dicta of this Court in Capt. M. Paul Anthony v. Bharat Gold Mines Ltd. however, remains unshaken although the applicability thereof had been found to be dependent on the fact situation obtaining in each case.” 10. The dicta of this Court in Capt. M. Paul Anthony v. Bharat Gold Mines Ltd. however, remains unshaken although the applicability thereof had been found to be dependent on the fact situation obtaining in each case.” 10. Accordingly, in view of the observations made hereinabove, there is no merit in the petition and the same is dismissed, so also the pending application(s), if any. No costs.