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Calcutta High Court · body

2016 DIGILAW 18 (CAL)

Dhirajuddin Ansari v. WBSEDCL

2016-01-06

SANJIB BANERJEE

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JUDGMENT : Sanjib Banerjee, J. The petitioner, then a Senior Assistant with the West Bengal State Electricity Board, was found to be involved in a case of theft of electricity which culminated in the conviction of the petitioner by an order of March 8, 2006. Following the conviction of the petitioner, the Board removed the petitioner from service by an order of March 16, 2006. It does not appear that the order of removal of the petitioner from service was upon the conclusion of any disciplinary action against the petitioner. The order of March 16, 2006 did not refer to any provision in the service regulations or other law permitting the summary removal from service of an employee upon conviction, whether on the ground of theft of electricity or otherwise. 2. The petitioner did not protest the order of his removal from service other than to make an appeal to the employer to reconsider the position since the petitioner had preferred an appeal or intended to prefer an appeal from the order of conviction. The relevant request of the petitioner for reconsideration of 'he matter was dealt with by the employer’s reply of May 19, 2006, the operative part whereof reads as follows; "...But the authority after due consideration of all perspective find no extenuating grounds to reconsider or rescind the punishment imposed upon him... till his conviction and sentence is set-aside by the Hon’ble High Court, Calcutta.” 3. The petitioner’s appeal has recently been decided on August 31, 2015 and the petitioner has been acquitted of the charges and the order of conviction set aside. The petitioner says that in view of the representation of the employer as contained in the letter of May 19, 2006, the employer should reconsider the matter in the light of the High Court’s order of acquittal and take appropriate steps. 4. It is not necessary at this stage to ascertain whether the employer had the authority in law to terminate the services of the petitioner merely on the basis of an order of conviction being passed in a criminal matter on a charge of theft of electricity against the petitioner. Ordinarily, disciplinary proceedings ought to have been instituted and an assessment of the facts made in course thereof before pronouncing an order of punishment after affording the petitioner an opportunity to present his version. But such procedure was not followed. Ordinarily, disciplinary proceedings ought to have been instituted and an assessment of the facts made in course thereof before pronouncing an order of punishment after affording the petitioner an opportunity to present his version. But such procedure was not followed. The petitioner had a right to challenge his termination of March 16, 2006, but he chose not to do so within a reasonable time thereafter. 5. The circumstances in which the order of termination of the petitioner’s services was passed and the apparently irregular procedure can no longer be a ground for challenging the same. The issue that arises is whether the petitioner’s case ought to be revisited by the employer pursuant to the order of acquittal passed in the appeal against the order of conviction. 6. It is now well established in service jurisprudence in this country that departmental action can proceed simultaneously with any criminal case in respect of any act of omission or commission by a Government employee or an employee of any agency or instrumentality of the State. It is quite possible that a major punishment may be awarded to the employee in the departmental action though the employee may be acquitted of the criminal charges either before or after the order of punishment in the disciplinary act on is pronounced and implemented. The law appears to be that if a disciplinary order of punishment has been pronounced and implemented prior to the conclusion of the criminal trial, if the employee is honourably acquitted in the criminal trial, such matter may be taken into account for revisiting the order of punishment in the departmental action. Indeed a departmental action is sometimes stayed till the conclusion of the criminal trial and the verdict in the criminal trial is a relevant consideration in the departmental proceedings. 7. This general principle in service is subject to a caveat since the standards of proof in disciplinary proceedings and criminal proceedings are distinct. Whereas the culpability of an accused in criminal proceedings is decided on the benchmark of beyond reasonable doubt, the yardstick followed m the disciplinary proceedings is. as in a civil action, the preponderance of probabilities. Thus, it is possible for a harsh punishment to be passed against a perceived delinquent in the disciplinary action even though such employee may have been previously acquitted in the criminal proceedings based on similar charges. 8. as in a civil action, the preponderance of probabilities. Thus, it is possible for a harsh punishment to be passed against a perceived delinquent in the disciplinary action even though such employee may have been previously acquitted in the criminal proceedings based on similar charges. 8. The answer to the issue lies in the appreciation of the appellate order that set aside the conviction of the petitioner. The charge brought against the petitioner in the criminal proceedings was of theft of: electricity. The appellate order discovered that though the petitioner had been found guilty of theft of electricity, the evidence revealed that the petitioner may have only abetted in a neighbour pilfering electricity I from the petitioner’s meter. The appellate order found that a charge of abetting theft of electricity was no brought against the petitioner, but he was directly charged with the theft of electricity which conduct was not proved by the evidence in the rial. 9. The upshot of the relevant discussion in the appellate order is that the petitioner was not charged with the appropriate provision and the conviction of the petitioner on the ground of theft of electricity was founded on the evidence of abetting theft of electricity. In no manner or form can the appellate order be regarded as one of honourable acquittal of the petitioner in the sense of the petitioner not being involved in any theft of electricity at all. 10. Since the petitioner accepted the termination of March 16, 12006 without any protest and merely cites the appellate order of acquittal for his order of termination to be reviewed, it does not appear that the departmental punishment meted out to the petitioner requires to be revisited since the petitioner’s acquittal was not an honourable acquittal. 11. Accordingly, W.P. 29274 (W) of 2015 is dismissed. 12. There will be no order as to costs.