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Uttarakhand High Court · body

2012 DIGILAW 173 (UTT)

JAMAL AHMAD v. STATE OF UTTARAKHAND

2012-04-20

TARUN AGARWALA

body2012
JUDGMENT Heard Shri Rakesh Thapliyal, the learned counsel for the petitioner and Shri N.S. Pundir, the learned Brief Holder for the State. 2. The facts leading to the filing of the writ petition is, that the petitioner was working as a Naib Nazir in Tehsil Haldwani. A first information report was lodged against the petitioner in the year 1983, on the basis of which the petitioner was suspended. Based on the investigation, a criminal chargesheet was filed and the criminal proceedings proceeded u/S 218 and 409 I.P.C. Eventually, the petitioner was honourably acquitted by a judgment of the criminal court on 27th June, 2005. However, pursuant to the irregularities in the manipulation of the registers and embezzlement of the State exchequer, departmental proceedings was also initiated against the petitioner and a chargesheet was issued. The petitioner submitted a reply and, since the reply was not found satisfactory, an Inquiry Officer was appointed who conducted the inquiry. It has come on record that the petitioner did not participate in the domestic inquiry which resulted in ex-parte proceedings against him. The Inquiry Officer, on the basis of the evidence collected, submitted an inquiry report holding the petitioner guilty of 21 charges that was levelled against him. Based on the inquiry report, a show cause notice was given by the disciplinary authority. The petitioner filed his reply and, thereafter, the disciplinary autborlty passed an order of dismissal dated 5th July, 1990. The order of dismissal was not challenged and the same became final. The petitioner accepted the dismissal order. 3. Upon his acquittal from the criminal court, the petitioner moved a representation to the disciplinary authority praying that in view of his acquittal from the criminal court, he should be reinstated in service. The said representation was rejected by the Revenue Secretary by an order dated 07/12/2006. The petitioner, being aggrieved, filed the present writ petition in the year 2008 praying for the quashing of the dismissal order dated 5th July, 1990 as well as the order of the Revenue Secretary dated 07/12/2006 rejecting the representation for reinstatement. 4. The learned counsel for the petitioner submitted and contended vehemently that the criminal proceedings and the departmental proceedings proceeded on the same set of charges and, since the petitioner has been acquitted from the criminal court, the petitioner was liable to be reinstated in service. 4. The learned counsel for the petitioner submitted and contended vehemently that the criminal proceedings and the departmental proceedings proceeded on the same set of charges and, since the petitioner has been acquitted from the criminal court, the petitioner was liable to be reinstated in service. In support of his submission, the learned counsel placed reliance upon the decisions of the Supreme Court in Capt. M. Paul Anthony Vs. Bharat Gold Mines Ltd. and another, (1999) 3 SCC 679 as well as in G.M. Tank Vs. State of Gujarat, (2006) 5 SCC 446 wherein the Supreme Court held that where the departmental inquiry and criminal proceedings are based on the same set of facts, charges, evidence and witnesses, and the employee is honourably acquitted in a criminal court, in such view of the matter, the dismissal order pursuant to the domestic inquiry was not sustainable, nor fair nor just and, consequently, the dismissal order was set aside. The learned counsel relying upon the said decisions submitted that the dismissal order was liable to be set aside in view of the decision of the criminal court and that he should be reinstated in service. 5. The Supreme Court in the case of Capt. M. Paul Anthony (Supra) was vexed with the question as to what should be done when criminal proceedings and departmental proceedings are simultaneously continuing on the same set of charges where evidence and witnesses are the same. The Supreme Court after analyzing the various decisions of the Supreme Court held:- “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. (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. (iiij 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 charge sheet. (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.” , 6. The Supreme Court opined that where the criminal case and the departmental proceedings are based on identical sets of facts, it would be appropriate to stay the departmental proceedinqs till the conclusion of the criminal proceedings. The Supreme Court held :- ‘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 raid conducted at the appellant’s residence and recovery of incriminating articles therefrom.’ The findings recorded by the Inquiry 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 Inquiry Officer and the Inquiry 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: 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. Since the facts and the evidence in both the proceedings, namely, the departmental proceedings and the criminal case were the same without there being any iota of difference, the distinction, which is usually drawn as between the departmental proceedings and the criminal case on the basis of approach and burden of proof, would not be applicable to the instant case.” 7. Similarly, in the case of G.M. Tank (Supra), the Supreme Court again reiterated the same view as under:- “The judgments relied on by the learned counsel appearing for the respondents are not 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 appellant’s 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 appellant’s 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.” 8. In the light of the aforesaid, the Court is required to examine as to whether the charges mentioned in the domestic inquiry was the same as that in the criminal proceedings and whether the same evidence and witnesses were taken into consideration: 9. Before proceeding, it is relevant to mention here that this is not a case where the departmental proceedings is required to be stayed or not but this is a case where the dismissal order has been passed on the basis of a domestic inquiry and, subsequently, after a long lapse of time, the petitioner has been acquitted by a criminal court on some charges. 10. The question which arises for consideration is, jn view of the decision of the criminal court acquitting the petitioner, is the petitioner liable to be reinstated in service. In order to answer the aforesaid question, the Court has perused the charqesheet and the decision given in the criminal court as well as the chargesheet, the inquiry report and the.decision given by the disciplinary authority in the domestic inquiry proceedlnqs.At the outset, the Courfis of the opinion that the departmental inquiry and the criminal proceedings are not based on the same set of facts, charges and the evidence. 11. 11. A lot of stress was laid by the learned counsel for the petitioner that-the period mentioned in the criminal chargehseet and the period mentioned in the domestic inquiry is the same, i.e., from 1977-78 to 31 st March, 1983 and that register No.4 and 7 were considered. The Court has perused the charges mentioned in the criminal case and finds that there was a charge of embezzlement of approximate Rs. 60,000/- for the period 1977-78 to 1983, whereas, 21 specific charges in the domestic inquiry proceedings indicates specific amounts of embezzlement which are more than Rs.60,000/- as mentioned in the criminal chargsheet. From a reading and a perusal of the documents as indicated aforesaid, the Court is of the view that the departmental inquiry and criminal proceedings are not based on the same set of facts, charges, evidence and witnesses.and, consequently, the mere fact that the petitioner has been acquitted honourably from the criminaltrial does not entitled him to be reinstated automatically. . 12. In Corporation of the City of Nagpur Vs. Ramchandra, (1981) 2 SCC 714, the Supreme Court held:- “6. The other question that remains is if the respondents are acquitted in the criminal case whether or not the departmental inquiry pending against the respondents would have to . continue. This is a matter which is to be decided by the department after considering the nature of the findings given by the criminal court. Normally where the accused is acquitted honorably and completely exonerated of the charges it would not be expedient to continue a departmental inquiry on the very same charges or grounds or evidence, but the fact remains, however, that merely because the accused is acquitted, the power of the authority concemed to continue the departmental inquiry is not taken away nor is its direction (discretion) in any way fettered.” 13. Similarly in Ajit Kumar Nag Vs. G.M. (PJ), Indian Oil Corporation Ltd., (2005) 7 SCC 265, the Supreme Court held:- “As far as acquittal of the appellant by a criminal court is concerned, in our opinion, the said order does not preclude the Corporation from taking an action if it is otherwise permissible. In our judgment, the law is fairly well settled. Acquittal by a criminal court would not debar an employer from exercising power in accordance with Rules and Regulations in force. The two proceedings criminal and departmental are entirely different. In our judgment, the law is fairly well settled. Acquittal by a criminal court would not debar an employer from exercising power in accordance with Rules and Regulations in force. The two proceedings criminal and departmental are entirely different. They operate in different fields and have different objectives. Whereas the object of criminal trial is to inflict appropriate punishment on the offender, the purpose of enquiry proceedings is to deal with the delinquent departmentally and to impose penalty in accordance with service Rules. In a criminal trial, incriminating statement made by the accused in certain circumstances or before certain officers is totally inadmissible in evidence. Such strict rules of evidence and procedure would not apply to departmental proceedings. The degree of proof which is necessary to order a conviction is different from the degree of proof necessary to record the commission of delinquency. The rule relating to appreciation of evidence in the two proceedings is also not similar. In criminal law, burden of proof is on the prosecution and unless the prosecution is able to prove the guilt of the accused ‘beyond reasonable doubt’, he cannot be convicted by a court of law. In departmental enquiry, on the other hand, penalty can be imposed on the delinquent officer on a finding recorded on the basis of ‘preponderance of probability’. Acquittal of the appellant by a Judicial Magistrate; therefore, does not ipso facto absolve him from the liability under the disciplinary jurisdiction of the Corporation. We are, therefore, unable to uphold the contention of the appellant that since he was acquitted by a criminal court, the impugned order dismissing him from service deserves to be quashed and set aside.” 14. In Depot Manager, A.P. SRTC Vs. Mohd. Yousuf Miya, (1997) 2 SCC 699, the Supreme Court held :- “The purpose of departmental enquiry and of prosecution are two different and distinct aspects. The criminal prosecution is launched for an offence for violation of a duty, the offender owes to the society or for breach of which law has provided that the offender shall make satisfaction to the public. So crime is an act of commission in violation of law or of omission of public·duty. The departmental enquiry is to maintain discipline in the service and efficiency of public service. It would, therefore, be expedient that the disciplinary pioceedings—are conducted and completed as expeditiously as possible. So crime is an act of commission in violation of law or of omission of public·duty. The departmental enquiry is to maintain discipline in the service and efficiency of public service. It would, therefore, be expedient that the disciplinary pioceedings—are conducted and completed as expeditiously as possible. It is not, therefore, desirable to lay down any guidelines as inflexible rules in which the departmental proceedings may or may not be stayed pending trial in criminal case against the delinquent officer. Each case requires to be considered in the backdrop of its own facts and circumstances. There would be no bar to proceed simultaneously with departmental enquiry and trial of a criminal case unless the charge in the criminal trial is of grave nature involving complicated questions of fact and law. Offence generally implies infringement of public duty, as distinguished from mere private rights punishable under criminal law. When trial for criminal offence is conducted it should be in accordance with proof of the offence as per the evidence defined under the provisions of the Evidence Act. Converse is the case of departmental enquiry. The enquiry in a departmental proceedings relates to conduct or breach of duty of the delinquent officer to punish him for his misconduct defined under the relevant statutory rules or law. That the strict standard of proof or applicability of the Evidence Act stands excluded is a settled legal position. Under these circumstances, what is required to be seen is whether the departmental enquiry would seriously prejudice the delinquent in his defence at the trial in a criminal case. It is always a question of fact to be considered in each case depending on its own facts and circumstances. In this case,’ the charge is failure to anticipate the accident and prevention thereof. It has nothing to do with the culpability of the offence under Sections 304-A and 338 IPC. Under these Circumstances, the High Court was not right in staying the proceedings.” 15. In view of the aforesaid, it is clear that the object of the departmental proceedings is to ascertain whether the delinquent is required to be retained in service or not. On the other hand, the object of criminal proceedings is to find out whether the offence in the criminal statute has been made out or not. The area covered by the two proceedings is not identical. On the other hand, the object of criminal proceedings is to find out whether the offence in the criminal statute has been made out or not. The area covered by the two proceedings is not identical. The object in both the proceedings is different. Whereas the departmental proceedings are taken to maintain the discipline and the efficiency in the service, the criminal proceedings are initiated to punish a person for committing an offence violating any public duty. 16. In the light of the aforesaid, the mere fact that the petitioner has been acquitted from the criminal court does not entitled him to be reinstated in service, especially, when the Court finds that the charges mentioned in the criminal proceedings were based on different sets of facts, charges and evidence. In the light of the aforesaid, the Court does not find any merit in the writ petition. The writ petition fails and is dismissed.