Central Administrative Tribunal - Delhi
Hon Ble Mr. V. Ajay Kumar vs Steel Authority Of India Ltd on 28 January, 2014
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
TA 75/2013
(WPC 2940/2013)
New Delhi this the 28th day of January, 2014
Honble Mr. V. Ajay Kumar, Member (J)
Honble Mr. P.K. Basu, Member (A)
kesh Kumar Jolly
S/o Late Mr. Upinder Lal
R/o E-125, Astha Kunj,
Sector-18, Rohini,
Delhi-110089 Applicant
(Through Shri Ramesh C. Kainthola and Shri Davendar Singh, Advocates)
Versus
1. Steel Authority of India Ltd.
Ispat Bhawan, Lodhi Road,
New Delhi-110003
Through its Chairman
2. Executive Director (Projects)
& Disciplinary Authority,
Steel Authority of India Ltd.
16th Floor, Scope Minar,
Laxmi Nagar District Centre,
Delhi-110092
3. Mr. Gautam Bhatia
Deputy General Manager (Operations)
& Inquiring Authority,
Steel Authority of India Ltd.
Ispat Bhawan, Lodhi Road,
New Delhi-110003
4. Union of India
Through its Secretary,
Government of India,
Ministry of Steel,
Udyog Bhawan,
New Delhi-110001 Respondents
(Through Shri K.K. Rai, Sr. Advocate and Shri Sharat Kapur, Advocate)
ORDER
Mr. P.K. Basu, Member (A) The applicant is a Private Secretary in the respondents organization since 10.10.1990. He is a union leader. It is claimed that one Mr. P.K.Shah who was the General Secretary of the employees union was inimical towards the applicant because the applicant used to oppose illegal appointments made by the management whereas Mr.Shah used to support the illegal acts of the management. The applicant filed a Writ Petition (C) 2470/1997 against the respondents on the alleged malpractice of illegally appointing the brother of Mr. Shah in the respondents organization. It is the applicants plea that as a result of this, Mr. P.K.Shah and 26 other employees lodged a complaint against him in 1993 that he was carrying on a lucky draw scheme in the respondents office. The FIR no.179/1993 was registered on 20.07.1993 under Sections 406 & 420 IPC and Sections 3 and 4 of Prize Chits and Money Circulation Schemes (Banning) Act, 1978 and the applicant was arrested. He was suspended w.e.f. 27.07.1993. A charge memo was also issued for holding a departmental enquiry vide Memo dated 29.09.1993 on the following charges:-
ARTICLE I Shri G.K. Jolly has committed a fraud with some of the employees of SAIL Corporate Office who are also his colleagues in the office, in the premises of the Company.
Shri Jolly has thus committed the following act of misconduct.
Fraud of property of another person within the premises of the Company. Clause 5.1 of the SAIL Conduct, Discipline & Appeal Rules, 1977 (CDA Rules).
ARTICLE II Shri G.K. Jolly has committed the act of gambling within the premises of the Company as the collection of money, for operation of lucky draws and unregistered/ unauthorized chitfund schemes constitute gambling. This is a misconduct as per the clause 5.13 of our CDA Rules, 1977 reproduced below:-
Gambling within the premises of the establishment as per clause 5.13 of SAIL CDA Rules 1977 is a misconduct.
ARTICLE III Shri G.K. Jolly has been collecting money in the office premises from some employees without the permission of the competent authority. He has therefore committed the following set of misconduct.
Collection of any money within the premises of the Company without permission of the Competent Authority is a misconduct as per Clause 5.16 of SAIL Conduct, Discipline & Appeal Rules, 1977. The applicant filed a Writ in the Honble Delhi High Court for stay of disciplinary proceedings till decision in the criminal case and this was allowed by the Honble Delhi High Court vide order dated 19.10.1994 and the Court directed that the departmental proceedings initiated against the applicant shall remain stayed till decision of the criminal proceedings launched in FIR No. 179 of 1993. On 1.05.1999, the suspension of the applicant was revoked, however, due to pendency of criminal case and departmental proceedings, recommendations of the DPC for his promotion were kept in sealed cover. When prosecution was being delayed, the applicant approached the Honble Delhi High Court seeking direction for early disposal of the criminal case. Vide order dated 27.05.2008, the Honble High Court directed expeditious disposal of the criminal case and that the prosecution shall ensure appearance of witnesses on such dates as are fixed by the learned trial court. By the judgment and order dated 15.03.2012, the applicant was acquitted in the criminal case. The relevant portion of the order is as follows:-
The material on record clearly suggests that the scheme being run by the accused could at the most be termed as Conventional Chit, which is excluded from the definition of Prize Chit, as Sections 3 and 4 make running of only Prize Chits to meet with penal consequences. Even otherwise, had the scheme of accused being Prize Chit, then as per the provisions of Section 3 of the Act, the prosecution witnesses should also have been accused being members of the said scheme.
44. In view of the above discussion, this court is of the considered opinion that the prosecution has not been able to prove charges against the accused in the matter. The accused is accordingly acquitted of charges.
2. The respondents made an appeal but the appeal was dismissed by the appellate Court vide order dated 9.11.2012. It may be mentioned that the criminal trial was held only for alleged offences under Sections 3 and 4 of Prize Chits and Money Circulation Schemes (Banning) Act, 1978. Charges for offence under Sections 406 and 420 IPC were dropped. That after one year of the acquittal of the applicant in the criminal case, on 16.02.2013 the respondents issued order appointing Inquiry Officer and Presenting Officer for disciplinary inquiry against the applicant. The applicant has, therefore, filed this application seeking quashing of order dated 16.02.2013 and memorandum dated 29.09.1993 with further direction to the respondents to promote him at least to the post to which his immediate junior employee is posted as on date and to pay to the applicant arrears of salary and allowances w.e.f. his suspension from 27.07.1993 till date on the grounds that resumption/ re-commencement of the disciplinary inquiry against the applicant in the circumstances of the present case is violative of the fundamental rights of the applicant; that resumption/re-commencement of disciplinary inquiry against the applicant after his acquittal on merits by the Trial Court as well as the Appellate Court in the criminal case arising out of the identical set of acts and similar charges is against the law laid down by the Honble Supreme Court; that resumption of disciplinary inquiry against the applicant will amount to double jeopardy; that the applicant having already suffered for last 20 years, resumption/re-commencement of disciplinary inquiry against him after 20 years and that too after his acquittal in the criminal case arising out of identical set of facts, having similar charges and also based on similar evidence is untenable in law and is wholly unwarranted. The applicant also relies on the judgment of the Honble Supreme Court in Capt. M. Paul Anthony Vs. Bharat Gold Mines Ltd., (1999) 3 SCC 679. In the said case, departmental proceedings and criminal case had been initiated against a security officer of a Government company on the basis of raid and recovery of a sponge gold ball and gold bearing sand from the residence of the said officer. Though in the departmental proceedings he was found guilty, however, in the criminal case, he was acquitted on merits where raid and recovery could not be proved. The Honble Supreme Court of India had directed reinstatement of the employee with a direction to pay entire arrears. Fresh inquiry allowed by the High Court was denied by the Honble Supreme Court on the ground that the Petitioner had been going through the agony for 14 years. It is stated that in the said case, the Honble Supreme Court held as follows:-
Simultaneous continuance of departmental proceeding with criminal proceedings Law on this point restated that scope of these two proceedings is different and they can be continued independently But in the present case, keeping in view that both the proceedings were based on the same set of facts which were sought to be proved by the same witnesses viz. police and Panches and the court had already acquitted the appellant by rejecting the prosecution story, held, findings recorded against appellant in an ex parte disciplinary enquiry could not be sustained.
3. The respondents in their reply have cited the following case laws in support of their stand that criminal case and departmental proceedings can go on simultaneously:-
i) Nelson Motis Vs Union of India and another (1992) 4 SCC 711. In this case, the Honble Supreme Court held as follows:-
5. So far as the first point is concerned, namely whether the disciplinary proceeding could have been continued in the face of the acquittal of the appellant in the criminal case, the plea has no substance whatsoever and does not merit a detailed consideration. 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. Besides, the Tribunal has pointed out that the acts which led to the notation of the departmental disciplinary proceeding were not exactly the same which were the subject matter of the criminal case.
ii) State of Karnataka and another Vs. T. Venkataramanappa (1996) 6 SCC 455, in which the Honble Court held that acquittal in prosecution for bigamy is not a bar to departmental inquiry.
iii) State of A.P. Vs K. Allabakash (2000) 10 SCC 177. In this case the Honble Supreme Court held as follows:-
2..we make it clear that acquittal of the respondent shall not be construed as a clear exoneration of the respondent, for the allegations call for departmental proceedings, if not already initiated, against him.
iv) Ajit Kumar Nag Vs. General Manager (PJ), Indian Oil Corpn. Ltd., Haldia and others (2005) 7 SCC 764. The Honble Supreme Court held as follows:-
11. As far as acquittal of the appellant by a criminal court is concerned, in our opinion, the said order does not preclude the Corporation from taking an action if it is otherwise permissible. 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 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 offender, the purpose of enquiry proceedings is to deal with the delinquent departmentally and to impose penalty in accordance with 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. In 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. Acquittal of the appellant by a Judicial Magistrate, therefore, does not ipso facto absolve him from the liability under the disciplinary jurisdiction of the Corporation. We are, therefore, unable to uphold the contention of the appellant that since he was acquitted by a criminal court, the impugned order dismissing him from service deserves to be quashed and set aside.
4. It was thus argued that there is no doubt with regard to settled legal proposition that as the standard of proof in both the proceedings is quiet different and the termination is not based on mere conviction of an employee in a criminal case, the same cannot be the basis of taking away the effect of departmental proceedings. Nor can such an action of the department be termed as double jeopardy. Facts, charges and nature of evidence etc. involved in an individual case would determine as to whether decision of acquittal would have any bearing on the findings recorded in the domestic inquiry. It is stated that the allegations of the applicant are far fetched and imaginary that because of his rivalry with Mr. P.K. Shah, whom the applicant alleges is close to the management, this criminal case/departmental proceeding was initiated against him. The applicant had been running several lucrative Schemes included lucky draw scheme which came out during the cross-examination of witnesses in the criminal case and the judgment dated 15.03.2012 does not suggest that witnesses blindly signed the criminal complaint as alleged by the applicant but have actually stated that they had paid money to the accused in the lucky draw scheme. It is also stated that of the three charges against the applicant in the disciplinary inquiry, only charge no.1 was of fraud of property of another person which came under the purview of Section 3/4 of Prize Chits and Money Circulation Schemes (Banning) Act, 1978 and the other two charges are of gambling within the premises of the establishment and collection of money within the premises of the Company without the permission of the competent authority which is a misconduct as per SAIL Conduct, Discipline and Appeal Rules, 1977. The applicant had, during his arguments, also alluded to Rule 5 of this Rule pertaining to misconduct in which Rule 5 (1) provides as follows:-
Theft, fraud or dishonesty in connection with the business or property of the Company or of a subsidiary or of property of another person within the premises of the Company.
The applicant had stated that no dishonesty or theft had been proved but the respondents clarified that the charge was of fraud and, therefore, was squarely covered by Rule 5 (1). Moreover 5 (13) pertains to gambling within the premises of the establishment and 5 (15) relates to collection without the permission of the competent authority of money within the premises of the Company. Therefore, the respondents case is that the applicant was never tried for committing fraud, gambling and collection of money in the office premises before the Criminal Court and these are the very charges contained in the disciplinary inquiry.
5. The respondents also relied on the judgment in Economic Transport Organization Vs. M/s Charan Spinning Mills (P) Ltd., 2010 (2) SCALE 427 in which the Constitution Bench of the Honble Supreme Court pointed out that the Court examines a document from different perspectives in different types of cases. The Court held thus:
20. In this context, it is necessary to remember that the nature of examination of a document may differ with reference to the context in which it is examined. If a document is examined to find out whether adequate stamp duty has been paid under the Stamp Act, it will not be necessary to examine whether it is validly executed or whether it is fraudulent or forged. On the other hand, if a document is being examined in a criminal case in the context of whether an offence of forgery has been committed, the question for examination will be whether it is forged or fraudulent, and the issue of stamp duty or registration will be irrelevant. But if the document is sought to be produced and relied upon in a civil suit, in addition to the question whether it is genuine, or forged, the question whether it is compulsorily registrable or not, and the question whether it bears the proper stamp duty, will become relevant. If the document is examined in the context of a dispute between the parties to the document, the nature of examination will be to find out that rights and obligation of one party vis-a-vis the other party. If in a summary proceedings by a consumer against a service provider, the insurer is added as a co-complainant or if the insurer represents the consumer as a power of attorney, there is no need to examine the nature of rights inter-se between the consumer and his insurer.
6. It was reiterated that it is well settled that the scope of inquiry in criminal trial and in disciplinary proceedings are quite different. The degree of proof required in criminal trial is of highest degree as the prosecution has to establish its case beyond reasonable doubt whereas in a departmental inquiry, the standard of proof required is only of mere preponderance of probability of committing the misconduct. In this background, the respondents argued that the acquittal in the criminal case has no relevance so far as carrying out the disciplinary inquiry against the accused is concerned.
7. In their additional affidavit, the respondents further point out that the applicant had filed a Writ Petition bearing number 4133/2008 earlier in the Honble High Court of Delhi and vide order dated 4.07.2008, the petition was disposed of by accepting the contention of the respondent-SAIL, as follows:
..that the recommendation of the DPC in his case will be considered as per rules after final disposal of the disciplinary proceedings. According to the respondents, since this order was not challenged, it has attained finality. Therefore, the respondents state that the application now before us is barred by the principles of res judicata. It is further added that the applicant had filed another Writ Petition no.6814/2008 before the Honble High Court for similar relief sought in the present TA as under:
iii) issue writ of mandamus and/ or any other appropriate writ or direction commanding the Respondent to consider the promotions of the Petitioners awaiting since 30.06.2007 as per the old/ previous policy. It is stated that the said Writ Petition has also been transferred to CAT, New Delhi. Thus, the respondents state that this application is not maintainable for the reason it is seeking the same relief i.e. promotion of the applicant.
8. The applicant in his counter arguments on legal issues states that Nelson Motis case (supra) is not applicable here as in that case, the facts in criminal trial and departmental inquiry were different. As regards the judgment in T. Venkataramanappa (supra), it is stated that the issue involved in departmental inquiry was for contracting a second marriage and in criminal trial for bigamy, therefore, that case is also not applicable here. Similarly in Allabakash (supra), it is argued that all the Prosecution Witnesses had turned hostile in that case. Departmental proceedings were launched even after acquittal in criminal case. The Court held that acquittal could not be construed as clear exoneration because the allegations called for departmental proceedings against respondent, if not already initiated. It was further argued that Ajit Kumar Nag (supra) was a case in which the dismissal was without inquiry.
9. We have looked at the facts and examined the law cited by both the sides. On the issue of res-judicata raised by the respondents we find that the earlier Writ Petition cited by the respondents pertained to promotion whereas the present OA is primarily about the disciplinary proceeding. Thus, principle of res-judicata does not apply. On the issue of non-maintainability of disciplinary proceeding in view of his acquittal in the criminal case, we find that when the criminal case commenced, the department did not proceed with the disciplinary proceedings awaiting the outcome of the criminal case. Only when the final order in the criminal case was passed, did the department commence the departmental inquiry again. We feel that the law settled in Nelson Motis, T. Venkataramanappa, K. Allabakash and Ajit Kumar Nag (supra) is basically whether the disciplinary proceedings and criminal trial can go on simultaneously and the settled legal proposition seems to be that it can. Secondly, the settled law also is that acquittal of a person in a criminal case does not automatically mean that the disciplinary proceedings cannot go on as the nature and scope of criminal case is very different from that of disciplinary proceeding. The facts of the case are indeed different in Nelson Motis, T. Venkataramanappa, K. Allabakash and Ajit Kumar Nag (supra), as pointed out by the applicant but that does not change the legal position settled by the Honble Supreme Court in these cases. Therefore, we find the ratio of these cases to be squarely applicable in the present case.
10. In the case of M. Paul Anthony (supra) also, the Honble Supreme Court had held that departmental proceedings and criminal case can go on simultaneously but in the cited case the ex-parte departmental proceedings were not sustained by the Honble Court because in that case, both the proceedings were on the same set of facts, which was sought to be proved by the same witnesses whereas in the case in hand, the charges in criminal proceedings and departmental proceedings, as pointed out by the respondents, are different. Moreover, it is not an ex parte disciplinary inquiry in which same order has been passed.
11. We also do not find any merit in the applicants argument that just because he had filed a case in the Honble High Court against the respondents on alleged irregular appointments, the management took vindictive action against the applicant. During the criminal trial, series of witnesses have stated that they had paid money to the applicant for the lucky draw scheme. The witnesses are his own colleagues and, therefore, the applicant has not been able to show any evidence of malafide alleged against him.
12. Therefore, since the settled law is that disciplinary proceedings and criminal trial can go on simultaneously; acquittal in the criminal case does not automatically result in closure of the departmental inquiry; the charges in disciplinary proceedings in this case go beyond the charges in the criminal proceedings; and further that delay between 1994 and 2013 is not as a result of any lapses on the part of the respondents, we hold that this is not a fit case in which the Tribunal should interfere. The OA is, therefore, dismissed. No costs.
( P.K.Basu ) ( V. Ajay Kumar ) Member (A) Member (J) /dkm/