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2012 DIGILAW 593 (UTT)

Mohan Singh Bisht v. State of Uttarakhand

2012-09-18

TARUN AGARWALA

body2012
Judgment : Tarun Agarwala, J. 1. Heard Mr. M. S. Pal, the learned senior counsel assisted by Mr. Tarun P. S. Takuli, the learned counsel for the petitioner, Mr. K. K. Shah, the learned counsel for the respondent no.3 and Mr. Subhash Upadhaya, the learned Standing Counsel for the State of Uttarakhand. 2. By means of this petition, the petitioner has prayed for the quashing of the order dated 03.03.1989, by which his services was terminated as well as for the quashing of the order dated 14.03.2001 whereby the petitioner’s application for reinstatement in service was rejected by the Regional Administrative Committee. 3. The facts leading to the filing of the writ petition is, that the petitioner was appointed as a Secretary in the Ranibagh Sehkari Samiti Ltd., Ranibagh, Tehsil Haldwani, District Nainital in the year 1980. The petitioner was placed under suspension on the charges of embezzlement, absence from duty and keeping incomplete records of the Samiti, etc. Subsequently, a chargesheet was filed and an enquiry officer was also appointed. The petitioner denied the charges. The departmental enquiry was accordingly conducted and, full opportunity was given to the petitioner to defend himself. The enquiry officer submitted his enquiry report holding that all the charges stood proved against the petitioner including the charge relating to embezzlement. The enquiry report was considered by the Administrative Committee and a resolution was passed accepting the findings of the enquiry officer. The Committee found that the charges were severe in nature and, accordingly, resolved to terminate the services of the petitioner. The said resolution was intimated to the petitioner by the impugned order dated 03.03.1989. 4. It transpires that on the charge of embezzlement of certain amounts, a first information report was also filed against the petitioner, which resulted in a criminal trial. The trial court, by an order dated 03.06.1989, held that the charges could not be proved against the petitioner and, accordingly acquitted the petitioner. On the basis of the acquittal, the petitioner made a representation before the respondents for his reinstatement, which was rejected by the Committee by an order dated 14.03.2001. The petitioner, being aggrieved, has filed the present writ petition. 5. On the basis of the acquittal, the petitioner made a representation before the respondents for his reinstatement, which was rejected by the Committee by an order dated 14.03.2001. The petitioner, being aggrieved, has filed the present writ petition. 5. The learned senior counsel for the petitioner submitted that the charges against the petitioner made in the criminal trial was similar to the charges levelled against him in the departmental enquiry and, since the petitioner has been acquitted by the criminal court, he is liable to be reinstated in service. In support of his submission, the learned counsel for the petitioner placed reliance upon a decision of this Court in Mohd. Tahir Vs. State of Uttarakhand & another 2012 (2) U.D. 25 , wherein the court in the given circumstances had directed the reinstatement of the petitioner after being acquitted by the criminal court. 6. Having heard the learned senior counsel for the petitioner at some length, the court is of the opinion that the petitioner is not entitled for any relief nor is the judgment cited by the learned senior counsel for the petitioner is applicable in the present facts and circumstances of the case. In Mohd. Tahir (supra), the services of the petitioner was terminated on the basis of conviction in a criminal matter. Subsequently, the employee filed an appeal, in which, he was acquitted and, based on such acquittal, filed the writ petition for reinstatement. This court, after considering the various judgments of the Supreme Court found that where the charges framed in the departmental proceedings and in the criminal proceedings were based on the same set of facts and circumstances and where the appellant had been exonerated or acquitted by the competent court on the same set of facts and circumstances and witnesses, the dismissal order from service based on the same set of facts and evidence was liable to be set aside. 7. In the instant case, the facts and the circumstances are entirely different. The court has perused the first information report and the charges framed by the criminal court against the petitioner and finds that the charge is in relation to some of the embezzled amount, whereas, the charges levelled against the petitioner in the departmental enquiry are different and distinct from the charge levelled against the petitioner in the criminal trial. The court has perused the first information report and the charges framed by the criminal court against the petitioner and finds that the charge is in relation to some of the embezzled amount, whereas, the charges levelled against the petitioner in the departmental enquiry are different and distinct from the charge levelled against the petitioner in the criminal trial. The charges levelled in the domestic enquiry is not only based on the embezzlement of the amount mentioned in the FIR, but, is also based on other amounts as well as based on other charges, viz., that most of the time the petitioner was absent from duty or that he had not kept the record of the society in accordance with the regulations and that he was not obeying the orders of the department etc. etc. 8. In Abhai Raj Singh Vs. Bank of Baroda & another 2005 (2) UPLBEC 1427 & 2005 (2) UPLBEC 1802, the Allahabad High Court held that the settled principles of law is that the degree of proof required in a departmental inquiry was vastly different than the degree of proof required to prove a criminal charge. In the departmental inquiry the finding can be recorded in preponderance of probabilities and it was not necessary that the charge must be proved to the hilt. The Supreme Court in a catena of cases has held that the departmental proceedings and the criminal proceedings are entirely different in nature. They operate in different fields and have different objectives. The materials or the evidence in the two proceedings may or may not be the same and, in some cases, at least, materials or evidence which would be relevant or open for consideration in the departmental proceeding, may be irrelevant in the criminal proceeding. The rules relating to the appreciation of the evidence in the two inquiries may also be different. The standard of proof, the mode of enquiry and the rules governing the enquiry and the trial in both the cases are entirely distinct and different. This view has been reiterated by the Supreme Court in Kusheshwar Dubey Vs. M/s Bharat Coking Coal Ltd. & others AIR 1988 SC 2118 , Capt. M. Paul Anthony Vs. Bharat Gold Mines Ltd. & another 1999 (82) FLR 627, State Bank of India & others Vs. R. B. Sharma 2004 LLR 950 and Chairman-cum-M.D., T.N.C.S. Corporation Ltd. Vs. This view has been reiterated by the Supreme Court in Kusheshwar Dubey Vs. M/s Bharat Coking Coal Ltd. & others AIR 1988 SC 2118 , Capt. M. Paul Anthony Vs. Bharat Gold Mines Ltd. & another 1999 (82) FLR 627, State Bank of India & others Vs. R. B. Sharma 2004 LLR 950 and Chairman-cum-M.D., T.N.C.S. Corporation Ltd. Vs. K. Meerabai 2006 (108) FLR 940. 9. The law enunciated by the Supreme Court leaves no scope for doubt that there is no bar for simultaneous proceedings being taken against the delinquent in the form of a criminal case and in the form of departmental proceedings. The object of the departmental proceedings is to ascertain as to whether the delinquent is required to be retained in service or not. The object of criminal prosecution is to find out whether the offence has been made or not. Therefore, the area covered by the two proceedings are not identical. The object in both the proceedings are different. The departmental proceedings are required to be taken to maintain the discipline and the efficiency of an employee in service and the aim of the criminal proceedings is to punish a person for committing an offence and for violating any public duty. 10. In the light of the aforesaid, the mere fact that the petitioner has been acquitted from the criminal court does not entitle him for reinstatement in service. It would have been a different thing, if the charges against the petitioner was based on the same set of facts in the criminal court and in the departmental enquiry. It would have been a different matter altogether, if the evidence and the witnesses were the same, but, having perused the first information report and the order passed by the criminal court on one hand and the findings given by the enquiry officer in the departmental proceedings on the other hand, the court finds that the charges are different. Further, different evidence were taken and the facts and circumstances relating to the findings given by the enquiry officer on one hand and the findings given by the trial court on the other hand are based on different facts and circumstances. 11. Consequently, no benefit can be given to the petitioner on the ground that he has been acquitted by the criminal court in some of the charges. 11. Consequently, no benefit can be given to the petitioner on the ground that he has been acquitted by the criminal court in some of the charges. In the light of the aforesaid, no relief can be granted to the petitioner. The writ petition fails and is dismissed. In the circumstances of the case, the parties shall bear their own cost.