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2022 DIGILAW 597 (ALL)

Jitendra Kumar Yadav v. Union of India

2022-04-21

MANJU RANI CHAUHAN

body2022
JUDGMENT : 1. Learned counsel for the petitioner is permitted to correct the name of respondent no.4 as Smt. Pooja Devi in place of Smt. Pushpa Devi in the array of parties during the course of the day. 2. Heard Sri Ashok Kumar Yadav, learned counsel for the petitioner and Sri Rajnish Kumar Rai, learned counsels for the respondent nos. 1 to 3. 3. This writ petition has been filed by the petitioner challenging the inquiry report dated 28.09.2021 submitted by respondent no.3 where by certain allegations has been made against the petitioner. 4. Learned counsel for the petitioner submits that the petitioner was posted as Constable in RPF post/Belgachia, Metro Railway, Kolkata and discharging his duties upto the satisfaction of his superior. The respondent no.4, Smt. Pooja Devi (wife of the petitioner), filed N.C.R. against the petitioner on 10.09.2020, which was registered as N.C.R. No. 82 of 2020, under Section 494 IPC. Thereafter, again Smt. Pooja Devi filed an application U/s 155(2) Cr.P.C. before the Judicial Magistrate, Saidpur District-Ghazipur, under Section 494 IPC. On the aforesaid application, the concerned Judicial Magistrate passed order dated 20.10.2020 directing the concerned Station House Officer to investigate the matter. The criminal proceedings with respect to the aforesaid aspect was lodged with the allegations that the petitioner had married for the second time with one Km. Archana Yadav, which was totally biased and false allegation. 5. Though the criminal proceedings is still pending against the petitioner, relying on the same set of facts and evidence, the department has proceeded to initiate the departmental proceedings against the petitioner. Subsequently, show cause notice has been issued to the petitioner on 05.03.2021 and charge sheet has also been issued against him on 30.04.2021. 6. Learned counsel for the petitioner further submits that the respondent no.3 has submitted the impugned inquiry report dated 28.09.2021 without considering the material facts that the criminal proceedings is still pending against the petitioner before the court below for the same cause of action. He further submits that since the allegations are identical and the basis to proceed both departmentally and in criminal trial are same, therefore, prejudice would be caused to the petitioner in case disciplinary proceedings and criminal trial is allowed to go on simultaneously, therefore, the disciplinary proceedings are liable to be quashed. 7. He further submits that since the allegations are identical and the basis to proceed both departmentally and in criminal trial are same, therefore, prejudice would be caused to the petitioner in case disciplinary proceedings and criminal trial is allowed to go on simultaneously, therefore, the disciplinary proceedings are liable to be quashed. 7. On the other hand, learned counsel for the respondent nos.1 to 3 submits that the acquittal by the criminal court does not vitiate the order of the disciplinary authority while passing the punishment order against the petitioner. Also the findings recorded by the criminal court are not binding, for the purpose of disciplinary proceedings against a delinquent. He further submits that the scope of judicial review is limited to the extent that proceedings have been conducted in accordance with law as it lies against the decision making procedure and not against the decision itself. No illegality in the inquiry report submitted by the Inquiry Officer after holding the enquiry. The Court cannot examine the inquiry report or the order of the disciplinary authority as an appellate authority, rather it has to satisfy itself that the enquiry has been conducted in accordance with law. Thus, the petition is liable to be dismissed. 8. Having heard the learned counsel for the parties and scanned the records, the Court finds that the position of law is well settled regarding that the departmental proceedings and the criminal proceedings can go on simultaneously, except where a departmental proceeding and a criminal proceeding are based on the same set of facts and evidence and where the witnesses are common in the said cases, the Court has to decide taking into account the said features of the case as to whether simultaneously continuance of both the proceedings would be appropriate and proper or not. 9. In the judgment of the apex court in the case of Nelson Motis Vs. Union of India & Anr., reported in AIR 1992 SC 1981 , it has been held as under:- "The nature and scope of a criminal case are very different from those of a departmental disciplinary proceeding and an order of acquittal, therefore, cannot conclude the departmental proceeding." 10. In another case of State of Karnataka & Anr. Union of India & Anr., reported in AIR 1992 SC 1981 , it has been held as under:- "The nature and scope of a criminal case are very different from those of a departmental disciplinary proceeding and an order of acquittal, therefore, cannot conclude the departmental proceeding." 10. In another case of State of Karnataka & Anr. Vs T. Venkataramanappa, (1996) 6 SCC 455 , the Apex Court held that acquittal in a criminal case cannot be held to be a bar to hold departmental enquiry for the same misconduct for the reason that in a criminal trial, standard of proof is different as the case is to be proved beyond reasonable doubt but in the departmental proceeding, such a strict proof of misconduct is not required. In the said case, the departmental proceedings had been quashed by the Tribunal as the delinquent had been acquitted by the criminal court of the same charges. 11. While dealing with a similar issue, a three-Judges Bench of the Hon'ble Supreme Court in Ajit Kumar Nag Vs. General Manager (PJ) Indian Oil Corporation Ltd., (2005) 7 SCC 764 , held as under:- "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 the 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 the 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. 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 a 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." 12. The issue as to whether disciplinary proceedings can be held at the time when the delinquent employee is facing the criminal trial, has also been considered from time to time. In State of Rajasthan Vs. B.K. Meena & Ors., AIR 1997 SC 13 , the Hon'ble Supreme Court while dealing with the issue observed as under:- "It would be evident from the above decisions that each of them starts with the indisputable proposition that there is no legal bar for both proceedings to go on simultaneously and then say that in certain situations, it may not be 'desirable', 'advisable' or 'appropriate' to proceed with the disciplinary enquiry when a criminal case is pending on identical charges...........The only ground suggested in the above decisions as constituting a valid ground for staying the disciplinary proceedings is that 'the defence of the employee in the criminal case may not be prejudiced'. This ground has, however, been hedged in by providing further that this may be done in cases of grave nature involving questions of fact and law. In our respectful opinion, it means that not only the charges must be grave but that the case must involve complicated questions of law and fact. Moreover, 'advisability', 'desirability' or 'propriety', as the case may be, has to be determined in each case taking into consideration all the facts and circumstances of the case............One of the contending considerations is that the disciplinary enquiry cannot be -and should not be -delayed unduly. So far as criminal cases are concerned, it is well known that they drag on endlessly where high officials or persons holding high public offices are involved. They get bogged down on one or the other ground. They hardly ever reach a prompt conclusion..........If a criminal case is unduly delayed that may itself be a good ground for going ahead with the disciplinary enquiry even where the disciplinary proceedings are held over at an earlier stage. They get bogged down on one or the other ground. They hardly ever reach a prompt conclusion..........If a criminal case is unduly delayed that may itself be a good ground for going ahead with the disciplinary enquiry even where the disciplinary proceedings are held over at an earlier stage. The interests of administration and good government demand that these proceedings are concluded expeditiously. It must be remembered that interests of administration demand that undesirable elements are thrown out and any charge of misdemeanour is enquired into promptly. The disciplinary proceedings are meant not really to punish the guilty but to keep the administrative machinery unsullied by getting rid of bad elements. The interest of delinquent officer also lies in a prompt conclusion of the disciplinary proceedings. If he is not guilty of the charges, his honour should be vindicated at the earliest possible moment and if he is guilty, he should be dealt with promptly according to law. It is not also in the interest of administration that persons accused of serious misdemeanour should be continued in office indefinitely, i.e., for long periods awaiting the result of criminal proceedings. It is not in the interest of administration. It only serves the interest of the guilty and dishonest........" 13. In another judgment of the Apex Court in the case of Capt. M. Paul Anthony Vs. Bharat Gold Mines Ltd., AIR 1999 SC 1416 , it has been held that there can be no bar for continuing both the proceedings simultaneously. The Court placed reliance upon large number of its earlier judgments, including Delhi Cloth and General Mills Ltd. Vs. Kushal Bhan, AIR 1960 SC 806 ; Tata Oil Mills Co. Ltd. Vs. The Workmen, AIR 1965 SC 155 ; Jang Bahadur Singh Vs. Baij Nath Tiwari, AIR 1969 SC 30 ; Kusheshwar Dubey Vs. M/s. Bharat Coking Coal Ltd. & Ors., AIR 1988 SC 2118 ; Nelson Motis (Supra); and B.K. Meena (Supra), and held that proceedings in a criminal case and departmental proceedings can go on simultaneously except where both the proceedings are based on the same set of facts and the evidence in both the proceedings is common. In departmental proceedings, factors prevailing in the mind of the disciplinary authority may be many, such as enforcement of discipline or to investigate level of integrity of delinquent or other staff. In departmental proceedings, factors prevailing in the mind of the disciplinary authority may be many, such as enforcement of discipline or to investigate level of integrity of delinquent or other staff. The standard of proof required in those proceedings is also different from that required in a criminal case. While in departmental proceedings, the standard of proof is one of preponderance of probabilities, in a criminal case, the charge has to be proved by the prosecution beyond reasonable doubt. Where the charge against the delinquent employee is of a grave nature which involves complicated questions of law and fact, it is desirable to stay the departmental proceedings till conclusion of the criminal case. Where the nature of charge in a criminal case is grave and wherein complicated questions of fact and law are involved, will depend upon the nature of the defence, 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. In case the criminal case does not proceed expeditiously, the departmental proceedings cannot be kept in abeyance for ever and may be resumed and proceeded with so as to conclude the same at the early date. The purpose is that if the employee is found not guilty his cause may be vindictive, and in case he is found guilty, administration may get rid of him at the earliest. 14. Again in the judgment of the Apex Court in the case of State Bank of India & Ors. Vs. R.B. Sharma, AIR 2004 SC 4144 , same view has been reiterated observing that both proceedings can be held simultaneously, except where departmental proceedings in criminal case are based on same set of facts and evidence in both the proceedings is common. The Court observed as under:- "The purpose of departmental inquiry and of prosecution are to put a distinct aspect. Criminal prosecution is launched for an offence for violation of 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 a public duty. The departmental inquiry is to maintain discipline in the service and efficiency of public service." 15. 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 a public duty. The departmental inquiry is to maintain discipline in the service and efficiency of public service." 15. While deciding the said case a very heavy reliance has been placed upon the earlier judgment of the Supreme Court in the case of Depot Manager, Andhra Pradesh State Road Transport Corporation Vs. Mohd Yousuf Miya & Ors., AIR 1997 SC 2232 , wherein it has been held that both proceedings can be held simultaneously unless the gravity of the charges demand staying the disciplinary proceedings till the trial is concluded as the complicated questions of fact and law are involved in that case. 16. A similar view has been reiterated by the Apex Court in Kendriya Vidyalaya Sangathan & Ors. Vs. T. Srinivas, AIR 2004 SC 4127 . A Three-Judge Bench of the Hon'ble Supreme Court in Krishnakali Tea Estate Vs. Akhil Bhartiya Chah Mazdoor Sangh & Anr., (2004) 8 SCC 200 reconsidered all earlier judgments and reiterated the same view, as the approach and the objective of the criminal proceedings, and the disciplinary proceedings are distinct and different. There can be no bar in carrying on the criminal trial and criminal proceedings simultaneously. 17. Thus, there can be no doubt regarding the settled legal proposition that as the standard of proof in both the proceedings is quite different, and the termination is not based on mere conviction of an employee in a criminal case, the acquittal of the employee in criminal case cannot be the basis of taking away the effect of departmental proceedings. Nor such an action of the department can be termed as double jeopardy. The submission made in this regard is untenable in view of the law discussed herein above. 18. So far as the submission made by learned counsel for the petitioner with respect to quash the inquiry report, the power of judicial review conferred on the constitutional court or on the Tribunal is not that of an appellate authority. 19. In the judgment of Apex Court in the case of State of Andhra Pradesh & Ors. 18. So far as the submission made by learned counsel for the petitioner with respect to quash the inquiry report, the power of judicial review conferred on the constitutional court or on the Tribunal is not that of an appellate authority. 19. In the judgment of Apex Court in the case of State of Andhra Pradesh & Ors. vs. S. Sree Rama Rao, AIR 1963 SC 1723 , a three Judge Bench of this Court has held that the High Court is not a court of appeal over the decision of the authorities holding a departmental enquiry against a public servant. It is concerned to determine whether the enquiry is held by an authority competent in that behalf, and according to the procedure prescribed in that behalf, and whether the rules of natural justice are not violated. The Apex Court held as under:- "7. ...The High Court is not constituted in a proceeding under Article 226 of the Constitution a court of appeal over the decision of the authorities holding a departmental enquiry against a public servant: it is concerned to determine whether the enquiry is held by an authority competent in that behalf, and according to the procedure prescribed in that behalf, and whether the rules of natural justice are not violated. Where there is some evidence, which the authority entrusted with the duty to hold the enquiry has accepted and which evidence may reasonably support the conclusion that the delinquent officer is guilty of the charge, it is not the function of the High Court in a petition for a writ under Article 226 to review the evidence and to arrive at an independent finding on the evidence...." 20. In another judgment of B.C. Chaturvedi vs. Union of India & Ors., reported in (1995) 6 SCC 749 again, a three Judge Bench of this Court has held that power of judicial review is not an appeal from a decision but a review of the manner in which the decision is made. Power of judicial review is meant to ensure that the individual receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in the eyes of the court. The Court/Tribunal in its power of judicial review does not act as an appellate authority to reappreciate the evidence and to arrive at its own independent findings on the evidence. The Court/Tribunal in its power of judicial review does not act as an appellate authority to reappreciate the evidence and to arrive at its own independent findings on the evidence. It was held as under:- "12. Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. Power of judicial review is meant to ensure that the individual receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in the eye of the court. When an inquiry is conducted on charges of misconduct by a public servant, the Court/Tribunal is concerned to determine whether the inquiry was held by a competent officer or whether rules of natural justice are complied with. Whether the findings or conclusions are based on some evidence, the authority entrusted with the power to hold inquiry has jurisdiction, power and authority to reach a finding of fact or conclusion. But that finding must be based on some evidence. Neither the technical rules of Evidence Act nor of proof of fact or evidence as defined therein, apply to disciplinary proceeding. When the authority accepts that evidence and conclusion receives support therefrom, the disciplinary authority is entitled to hold that the delinquent officer is guilty of the charge. The Court/Tribunal in its power of judicial review does not act as appellate authority to reappreciate the evidence and to arrive at its own independent findings on the evidence. The Court/Tribunal may interfere where the authority held the proceedings against the delinquent officer in a manner inconsistent with the rules of natural justice or in violation of statutory rules prescribing the mode of inquiry or where the conclusion or finding reached by the disciplinary authority is based on no evidence. If the conclusion or finding be such as no reasonable person would have ever reached, the Court/Tribunal may interfere with the conclusion or the finding, and mould the relief so as to make it appropriate to the facts of each case. 13. The disciplinary authority is the sole judge of facts. Where appeal is presented. The appellate authority has co- extensive power to reappreciate the evidence or the nature of punishment. In a disciplinary inquiry the strict proof of legal evidence and findings on that evidence are not relevant. 13. The disciplinary authority is the sole judge of facts. Where appeal is presented. The appellate authority has co- extensive power to reappreciate the evidence or the nature of punishment. In a disciplinary inquiry the strict proof of legal evidence and findings on that evidence are not relevant. Adequacy of evidence or reliability of evidence cannot be permitted to be canvassed before the Court/Tribunal. In Union of India vs. H.C. Goel [(1964) 4 SCR 781], this Court held at page 728 that if the conclusion, upon consideration of the evidence, reached by the disciplinary authority, is perverse or suffers from patent error on the face of the record or based on no evidence at all, a writ of certiorari could be issued." 21. Again in the judgment of the Apex Court in the case of State of Karnataka & Anr. v. N. Gangaraj reported in 2020 (3) SCC 423 , the Apex Court has held that once the evidence has been accepted by the departmental authority, in exercise of power of judicial review, the Tribunal or the High Court could not interfere with the findings of facts recorded by reappreciating evidence as if the Courts are the Appellate Authority. 22. In another judgment of the Apex Court in the case of State Bank of Bikaner and Jaipur vs. Nemi Chand Nalwaya, (2011) 4 SCC 584 , the Apex Court held that the courts will not act as an appellate court and reassess the evidence led in the domestic enquiry, nor interfere on the ground that another view is possible on the material on record. If the enquiry has been fairly and properly held and the findings are based on evidence, the question of adequacy of the evidence or the reliable nature of the evidence will not be ground for interfering with the findings in departmental enquiries. The Court held as under:- "7. It is now well settled that the courts will not act as an appellate court and reassess the evidence led in the domestic enquiry, nor interfere on the ground that another view is possible on the material on record. If the enquiry has been fairly and properly held and the findings are based on evidence, the question of adequacy of the evidence or the reliable nature of the evidence will not be grounds for interfering with the findings in departmental enquiries. If the enquiry has been fairly and properly held and the findings are based on evidence, the question of adequacy of the evidence or the reliable nature of the evidence will not be grounds for interfering with the findings in departmental enquiries. Therefore, courts will not interfere with findings of fact recorded in departmental enquiries, except where such findings are based on no evidence or where they are clearly perverse. The test to find out perversity is to see whether a tribunal acting reasonably could have arrived at such conclusion or finding, on the material on record. Courts will however interfere with the findings in disciplinary matters, if principles of natural justice or statutory regulations have been violated or if the order is found to be arbitrary, capricious, mala fide or based on extraneous considerations, (vide B. C. Chaturvedi vs. Union of India - 1995 (6) SCC 749 , Union of India vs. G. Gunayuthan - 1997 (7) SCC 463 , and Bank of India vs. Degala Suryanarayana - 1999 (5) SCC 762 , High Court of Judicature at Bombay vs. Shahsi Kant S Patil -2001 (1) SCC 416)." 23. In view of the above facts, reasons and case laws so cited by the respective parties, this Court does not find any infirmity or illegality in the impugned inquiry report dated 28.09.2021 submitted by the respondent no.3, Enquiry Officer/Inspector/RPF/Noapara, Metro Railway, Kolkata (Annexure No.10 to the writ petition). Therefore, this writ petitioner is liable to dismissed being misconceived. 24. Accordingly, this writ petition is dismissed being misconceived. 25. However, it is always open to the disciplinary authority to proceed against the petitioner strictly, in accordance with law.