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2013 DIGILAW 458 (RAJ)

Gopal Singh v. State of Rajasthan

2013-02-22

M.N.BHANDARI

body2013
Hon'ble BHANDARI, J.—By this writ petition, challenge is made to the order of dismissal dated 31.12.1990 so as the order passed on departmental appeal dated 31.12.1991. 2. Petitioner was served with a charge sheet containing two allegations. First allegation was regarding absence and second that he tried to snatch gold chain of witness Ramadevi who was sleeping in 'Musaafir Khana' at the railway station. After charge sheet and enquiry, order of punishment was passed. Petitioner preferred departmental appeal however it was dismissed. 3. Learned counsel for petitioner submits that basis of the order of punishment so as the order passed in departmental appeal was pendency of criminal case against the petitioner. The criminal case has now been decided where petitioner has been acquitted of the charges by giving benefit of doubt vide order dated 26.9.2011. In view of the above, very basis to pass order of dismissal no more survives. Petitioner made an application for reinstatement however no cognizance has been given. In view of above, a direction may be given to the respondents to reinstate the petitioner after recalling order of dismissal and order passed in appeal. Reference of the judgment of this court in the case of “Bahadur Ram vs. State of Rajasthan & Ors.”, reported as 2008(2) WLC (Raj) 327 = 2008(2) RLW 998 and “Chander Kant Saxena vs. State of Rajasthan & Ors.”, reported as 2010(4) WLC (Raj) 741 has been given. 4. I have considered submissions of learned counsel and perused the record. 5. The argument of learned counsel is that enquiry so as order of dismissal is based on pendency of criminal case in reference to the allegations of attempt to snatch gold chain of Ramadevi while she was sleeping at the railway station. The perusal of the impugned order does not show that it is based on criminal case. Accordingly, first ground of learned counsel for petitioner to show that order of punishment is based on pendency of the criminal case is not made out. 6. It may be that order of punishment was passed while criminal case was pending but then there exist no bar to proceed with the disciplinary proceedings while criminal case is pending. The only exception is when it involves complicated questions of fact and law in a crime of grave nature. It is not a case of aforesaid nature and, otherwise, petitioner never protested against the disciplinary enquiry. The only exception is when it involves complicated questions of fact and law in a crime of grave nature. It is not a case of aforesaid nature and, otherwise, petitioner never protested against the disciplinary enquiry. Now, after lapse of more than 22 years, the issue aforesaid cannot be raised. 7. Reference of the judgment of this court in the case of Bahadur Ram (supra) is given to show that acquittal in the criminal case should result in quashing of the order of punishment based on departmental enquiry. 8. I have considered the judgments referred to above. The aforesaid judgments are in reference to the judgment of the Supreme Court in the case of case of “GM Tank vs. State of Gujarat & ors” reported as (2006) 5 SCC 446 and “Captain M Paul Anthony vs. Bharat Gold Mines Ltd.” reported as (1999) 3 SCC 679 . If para 22 of the judgment in the case of Captain M Paul Anthony (supra) is looked into, it permits departmental proceedings while criminal case is pending. Paragraph 22 of the judgment is quoted as under - (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 large 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. (iii) 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. (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 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, the administration may get rid of him at the earliest.” 9. It would be gainful to refer subsequent judgments of the Supreme Court where departmental enquiry was allowed to continue during pendency of the criminal case and denied to quash order of punishment pursuant to departmental enquiry. 10. In the case of “Suresh Pathrella vs. Oriental Bank of Commerce” reported in (2006) 10 SCC 572 , Hon'ble Apex Court held that acquittal in the criminal case cannot be taken as a bar for initiation of disciplinary proceedings against the delinquent employee. It is after considering that standard of proof required in criminal trial and departmental enquiry is quite different. Relevant para 11 and 12 of the aforesaid judgment are quoted for ready reference thus - “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. 12. It is not the case of the appellant that the enquiry has been conducted without affording an opportunity to the appellant or behind the back of the appellant and thereby violated the principle of natural justice. 12. It is not the case of the appellant that the enquiry has been conducted without affording an opportunity to the appellant or behind the back of the appellant and thereby violated the principle of natural justice. It is, however, contended by the counsel for the appellant that the opinion of hand writing expert in respect of the complainant-GC Luthra said to have been procured by the Enquiry Officer after the enquiry was closed had not been furnished to the appellant, despite request and, therefore, a reasonable opportunity has been denied to him.” 11. Same view was taken by the Hon'ble Apex Court in the case of “Punjab Water Supply Sewerage Board & anr vs. Ram Sajivan & anr” reported in (2007) 9 SCC 86 . In the aforesaid case, the delinquent was given benefit of probation in the criminal case. It was held that initiation of disciplinary proceedings is not a bar. 12. In the case of Uttaranchal Road Transport Corporation & ors vs. Mansaram Nainwal” reported in (2006) 6 SCC 366 , the Hon'ble Apex Court held that acquittal in the criminal case cannot automatically affect the depart-mental enquiry. Therein, applying the judgment in the case of Captain M Paul Anthony, the order of termination was set aside. It was without discussing as to how the judgment in the case of Captain M Paul Anthony applies. Accordingly matter was remitted back to the High Court for afresh decision. 13. In a recent judgment in the case of “West Bokaro Colliery (TISCO Ltd.) vs. Ram Pravesh Singh” reported in (2008) 3 SCC 729 , it has been held that acquittal in a criminal case cannot be taken as a bar for departmental enquiry. Para 20 of the aforesaid judgment is quoted hereunder for ready reference thus - “20. Tribunal has set aside the report of the Enquiry Officer and the order of dismissal passed by the Punishing Authority by observing that the charges against the respondent were not proved beyond reasonable doubt. It has repeatedly been held by this Court that the acquittal in a criminal case would not operate as a bar for drawing up of a disciplinary proceeding against a delinquent. It is well settled principle of law that yardstick and standard of proof in a criminal case is different from the one in disciplinary proceedings. It has repeatedly been held by this Court that the acquittal in a criminal case would not operate as a bar for drawing up of a disciplinary proceeding against a delinquent. It is well settled principle of law that yardstick and standard of proof in a criminal case is different from the one in disciplinary proceedings. While the standard of proof in a criminal case is proof beyond all reasonable doubt, the standard of proof in a departmental proceeding is preponderance of probabilities.” 14. Same view has been taken by the Hon'ble Apex Court in the case of “Union of India & ors vs. Naman Singh Shekhawat” reported in (2008) 4 SCC 1 , wherein, it has been held that after acquittal, initiation of departmental enquiry is permissible but exercise should be bona fide. 15. In the case of “Divisional Controller, Karnataka State Road Transport Corporation vs. MG Vittal Rao” reported as (2012) 1 SCC 442 = 2012(1) RLW 224 (SC), it has been held in para 23 - “23. In Pandiyan Roadways Corpn. Ltd. vs. N. Balakrishnan (2007) 9 SCC 755 , this Court re-considered the issue taking into account all earlier judgments and observed as under: (SCC pp.766-67, paras 21-22) “21. There are evidently two lines of decisions of this Court operating in the field. One being the cases which would come within the purview of Capt. M. Paul Anthony vs. Bharat Gold Mines Ltd and G.M. Tank vs. State of Gujarat. However, the second line of decisions show that an honourable acquittal in the criminal case itself may not be held to be determinative in respect of order of punishment meted out to the delinquent officer, inter alia, when: (i) the order of acquittal has not been passed on the same set of facts or same set of evidence; (ii) the effect of difference in the standard of proof in a criminal trial and disciplinary proceeding has not been considered (See: Commr. of Police vs. Narender Singh, or; where the delinquent officer was charged with something more than the subject-matter of the criminal case and/or covered by a decision of the civil court (See: G.M. Tank, Jasbir Singh vs. Punjab & Sind Bank and Noida Entrepreneurs vs. NOIDA, SCC at p. 394, para 16 22. ....'41. of Police vs. Narender Singh, or; where the delinquent officer was charged with something more than the subject-matter of the criminal case and/or covered by a decision of the civil court (See: G.M. Tank, Jasbir Singh vs. Punjab & Sind Bank and Noida Entrepreneurs vs. NOIDA, SCC at p. 394, para 16 22. ....'41. We may not be understood to have laid down a law that in all such circumstances the decision of the civil court or the criminal court would be binding on the disciplinary authorities as this Court in a large number of decisions points out that the same would depend upon other factors as well. (See: e.g. Krishnakali Tea Estate and RBI vs. S Mani) Each case is, therefore, required to be considered on its own facts. (See also Ram Tawekya Sharma vs. State of Bihar and Roop Singh Negi vs. Punjab National Bank).” 16. In the case of “NOIDA Entrepreneurs Association vs. NOIDA & ors”, reported in (2007) 10 SCC 385 = RLW 2007(4) SC 2790, it has been held that standard proof of enquiry is not the same as required in a criminal case. Even an acquittal in the criminal proceeding does not bar departmental enquiry thus a decision to drop the enquiry was held to be improper. Paras 11, 13, 14, 16 of the said judgment are quoted thus - “11.A bare perusal of the order which has been quoted in its totality goes to show that the same is not based on any rational foundation. The conceptual difference between a departmental enquiry and criminal proceedings has not been kept in view. Even orders passed by the executive have to be tested on the touchstone of reasonableness. (See: Tata Cellular vs. Union of India ( 1994(6) SCC 651 ), and Teri Oat Estates (P.) Ltd. vs. U.T. Chandigarh and Ors. ( 2004 (2) SCC 130 ). The conceptual difference between departmental proceedings and criminal proceedings have been highlighted by this Court in several cases. Reference may be made to Kendriya Vidyalaya Sangathan and Others vs. T. Srinivas ( 2004(7) SCC 442 ), Hindustan Petroleum Corporation Ltd. and Others vs. Sarvesh Berry ( 2005(10) SCC 471 ) and Uttaranchal Road Transport Corpn. vs. Mansaram Nainwal ( 2006(6) SCC 366 ). “8. ....The purpose of departmental enquiry and of prosecution is two different and distinct aspects. Reference may be made to Kendriya Vidyalaya Sangathan and Others vs. T. Srinivas ( 2004(7) SCC 442 ), Hindustan Petroleum Corporation Ltd. and Others vs. Sarvesh Berry ( 2005(10) SCC 471 ) and Uttaranchal Road Transport Corpn. vs. Mansaram Nainwal ( 2006(6) SCC 366 ). “8. ....The purpose of departmental enquiry and of prosecution is 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 proceedings 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 Indian Evidence Act 1872 (in short 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 department 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. Under these circumstances, what is required to be seen is whether the department 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. A three-judge Bench of this Court in Depot Manager, A.P. State Road Transport Corporation vs. Mohd. Yousuf Miya and Ors. ( 1997 (2) SCC 699 ) analysed the legal position in great detail on the above lines. 13. There can be no straight jacket formula as to in which case the departmental proceedings are to be stayed. There may be cases where the trial of the case gets prolonged by the dilatory method adopted by delinquent official. He cannot be permitted to, on one hand, prolong criminal case and at the same time contend that the departmental proceedings should be stayed on the ground that the criminal case is pending. 14. In Capt. M. Paul Anthony vs. Bharat Gold Mines Ltd. 1999 (3) SCC 679 ), this Court indicated some of the fact situations which would govern the question whether departmental proceedings should be kept in abeyance during pendency of a criminal case. In paragraph 22 conclusions which are deducible from various decisions were summarised. They are as follows: (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 large 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. (iii) 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. (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 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, the administration may get rid of him at the earliest. 16. The standard of proof required in departmental proceedings is not the same as required to prove a criminal charge and even if there is an acquittal in the criminal proceedings the same does not bar departmental proceedings. That being so, the order of the State Government deciding not to continue the departmental proceedings is clearly untenable and is quashed. The departmental proceedings shall continue.” 17. It is to be understood that standard of proof required in two proceedings are quite different. In the criminal case charge is to be proved beyond doubt whereas same standard does not apply to the departmental enquiry. Rather, hear say evidence is also admissible and be considered. Looking to the difference of standard of proof conclusion in one proceeding cannot affect the other. In the light of the aforesaid and in view of the subsequent judgment of the Supreme Court on the issue, I am unable to take same view as has been taken by this court in the case of Bahadur Ram (supra) and in the case of Chander Kant Saxena (supra). 18. It is also to be noticed that pursuant to departmental enquiry, order of punishment was passed in the year 1990, whereas order of acquittal is of the year 2011 i.e. after lapse of 21 years. The petitioner has not filed a copy of enquiry report so as to make a comparison with the order in criminal case as to whether evidence and material was same in two proceedings. 19. In view of discussion made above, I do not find any merit in this writ petition. Hence, same is dismissed.