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2016 DIGILAW 1060 (JHR)

Baldeo Prasad Das v. Bharat Coking Coal Limited

2016-07-18

PRAMATH PATNAIK

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JUDGMENT : Pramath Patnaik, J. In the instant writ application, the petitioner has inter alia, prayed for quashing letter dated 10.12.1982, whereby petitioner has been dismissed from services and further for direction upon the respondents for reinstatement of petitioner in services with all consequential benefits. 2. Sans details, the facts as disclosed in the writ application is that the petitioner was appointed as Miner Loader at Keshalpur Colliery. In the year 1982, the respondent no. 3 issued charge-sheet levelling allegation against the petitioner that by way of forged signature of the agent of the colliery, he has withdrawn his salary for the period 11.03.1981 to 10.03.1982 and the petitioner also made his attendance for the period 11.03.1982 to 10.04.1982 by himself by making forged signature of agent, thereby put loss to the respondents to the tune of Rs. 10.131,11/-. Thereafter, on the basis of domestic enquiry, the petitioner was dismissed from services vide order dated 10.12.1982. However, basing on the same charge, a case was registered against the petitioner bearing Katras P.S. Case No. 113 of 1982 under Sections 420, 467 and 468 of the Indian Penal Code. In the criminal case, initially the petitioner was found guilty of the charges under Sections 420 and 471 of the Indian Penal Code and has been sentenced to R.I. for one year by learned Judicial Magistrate, 1st Class. But, in the appeal, the learned Additional Sessions Judge, III has been pleased to pass judgment dated 30.04.2003 in Cr. Appeal No. 69 of 2000 acquitting the petitioner from the charges. After acquittal in the criminal case, the petitioner submitted a representation before the respondent requesting for his reinstatement in services with all back wages. 3. Learned counsel for the petitioner submitted that impugned order of dismissal from services passed against the petitioner ought to be re-considered in view of the fact that he has been acquitted in the Criminal Appeal No. 69 of 2000 by the learned Additional Sessions Judge, III, Dhanbad. In support of his contention, learned counsel for the petitioner relied upon a judgment rendered in the case of Capt. M. Paul Anthony v. Bharat Gold Mines Ltd & Anr., as reported in (1999) 3 SCC 679 . 4. Per contra, counter-affidavit has been filed on behalf of the respondents controverting the averments made in the writ application. In support of his contention, learned counsel for the petitioner relied upon a judgment rendered in the case of Capt. M. Paul Anthony v. Bharat Gold Mines Ltd & Anr., as reported in (1999) 3 SCC 679 . 4. Per contra, counter-affidavit has been filed on behalf of the respondents controverting the averments made in the writ application. Learned counsel for the respondents submitted that acquittal in a criminal case will not vitiate the order of dismissal since termination is based upon domestic enquiry, which has been found to be fair and proper. In this regard, learned counsel for the respondents referred to the judgment rendered in the case of Chairman and Managing Director, United Commercial Bank & Ors. v. P.C. Kakkar as reported in (2003) 4 SCC 364 and also in the case of Ajit Kumar Nag v. General Manager (PJ) Indian Oil Corporation Ltd., Haldia & Ors., as reported in (2005) 7 SCC 764 . It has further been submitted that from perusal of the judgment passed by the appellate Court in Cr. Appeal No. 69 of 2000, it is evident that the order of acquittal is on account of benefit of doubt and not a clean acquittal. 5. After hearing learned counsel for the respective parties at length and on screening of the documents on record, I am of the considered view that the petitioner has not been able to make out a case for interference for the following facts, reasons and judicial pronouncements : (i). The charges levelled against the petitioner in the departmental enquiry was very serious and the matter was enquired into and the petitioner was given reasonable opportunity to put forth his case and the disciplinary authority after perusing the enquiry report and on being satisfied that the charges levelled against the petitioner has been proved passed the order of dismissal of the petitioner from services. (ii). On the very same charges, the petitioner was proceeded in Criminal proceeding but he was found guilty under Sections 420 and 471 of the Indian Penal Code by the learned Judicial Magistrate, 1st Class and has been sentenced to R.I. for one year. However, in the appeal, the learned Additional Sessions Judge, III has been pleased to pass judgment dated 30.04.2003 in Cr. Appeal No. 69 of 2000 acquitting the petitioner from the charges on account of benefit of doubt. However, in the appeal, the learned Additional Sessions Judge, III has been pleased to pass judgment dated 30.04.2003 in Cr. Appeal No. 69 of 2000 acquitting the petitioner from the charges on account of benefit of doubt. It is well settled proposition of law that acquittal in criminal appeal will not ipso facto entitle the petitioner for reinstatement in services. The Hon'ble Apex Court in its illuminative decision rendered in case of Deputy Inspector General of Police & Anr. v. S. Samuthiram as reported in (2013) 1 SCC 598 has thrown light on the subject. It would be appropriate to extract the relevant portion of the decision referred to above (supra) at paragraph 23, 26 and 27 : "23. We are of the view that the mere acquittal of an employee by a criminal court has no impact on the disciplinary proceedings initiated by the Department. The respondent, it may be noted, is a member of a disciplined force and non-examination of two key witnesses before the criminal court that is Adiyodi and Peter, in our view, was a serious flaw in the conduct of the criminal case by the prosecution. Considering the facts and circumstances of the case, the possibility of winning over PWs 1 and 2 in the criminal case cannot be ruled out. We fail to see, why the prosecution had not examined Head Constable Adiyodi (No. 1368) and Peter (No. 1079) of Tenkasi Police Station. It was these two Head Constables who took the respondent from the scene of occurrence along with PWs 1 and 2, husband and wife, to Tenkasi Police Station and it is in their presence that the complaint was registered. In fact, the criminal court has also opined that the signature of PW 1 (complainant husband) is found in Ext. P-1 complaint. Further, the doctor, PW 8 has also clearly stated before the enquiry officer that the respondent was under the influence of liquor and that he had refused to undergo blood and urine tests. That being the factual situation, we are of the view that the respondent was not honourably acquitted by the criminal court, but only due to the fact that PW 1 and PW 2 turned hostile and other prosecution witnesses were not examined. 26. That being the factual situation, we are of the view that the respondent was not honourably acquitted by the criminal court, but only due to the fact that PW 1 and PW 2 turned hostile and other prosecution witnesses were not examined. 26. As we have already indicated, in the absence of any provision in the service rules for reinstatement, if an employee is honourably acquitted by a criminal court, no right is conferred on the employee to claim any benefit including reinstatement. Reason is that the standard of proof s required for holding a person guilty by a criminal court and the enquiry conducted by way of disciplinary proceeding is entirely different. In a criminal case, the onus of establishing the guilt of the accused is on the prosecution and if it fails to establish the guilt beyond reasonable doubt, the accused is assumed to be innocent. It is settled law that the strict burden of proof required to establish guilt in a criminal court is not required in a disciplinary proceedings and preponderance of probabilities is sufficient. There may be cases where a person is acquired for technical reasons or the prosecution giving up other witnesses since few of the other witnesses turned hostile, etc. In the case on hand the prosecution did not take steps to examine many of the crucial witnesses on the ground that the complainant and his wife turned hostile. The court, therefore, acquitted the accused giving the benefit of doubt. We are not prepared to say that in the instant case, the respondent was honourably acquitted by the criminal court and even if it is so, he is not entitled to claim reinstatement since the Tamil Nadu Service Rules do not provide so. 27. We have also come across cases where the service rules provide that on registration of a criminal case, an employee can be kept under suspension and on acquittal by the criminal court, he be reinstated. In such cases, the reinstatement is automatic. There may be cases where the service rules provide that in spite of domestic enquiry, if the criminal court acquits an employee honourably, he could be reinstated. In other words, the issue whether an employee has to be reinstated in service of not depends upon the question whether the service rules contain any such provision for reinstatement and not as a matter of right. In other words, the issue whether an employee has to be reinstated in service of not depends upon the question whether the service rules contain any such provision for reinstatement and not as a matter of right. Such provisions are absent in the Tamil Nadu Service Rules. (iii). It is no more res integra that the departmental proceeding and criminal proceeding are quite distinct to each other and in the case of departmental proceeding, preponderance of probability is the paramount consideration to fasten guilt on the delinquent but in the case of criminal proceeding the yardstick is to prove beyond all reasonable doubt. There has been catena of judgment rendered by Hon'ble Apex Court on this issue though there is no straight-jacket formula; somebody may be acquitted in a criminal case but may be found guilty in a departmental proceeding. (iv). In the case at hand, the petitioner was dismissed from services vide Annexure 2 to the writ application in the year 1982 and the in the year 2003, he has been acquitted in the criminal case on the ground of benefit of doubt. The acquittal in criminal case would not ipso facto entitle the petitioner for reinstatement in services, as per the decision rendered by the Hon'ble Apex Court in the case of Deputy Inspector General of Police & Anr. v. S. Samuthiram (supra). Therefore, the case of the petitioner does not merit consideration by this Court. 6. In view of the reasons stated herein above, the impugned order dated 10.12.1982 at Annexure 2 does not warrant interference by this Court and accordingly, the writ petition sans merit stands dismissed. Petition dismissed.