Allahabad High Court
State Of U.P. Thru. Secy. Home, Govt. Of ... vs U.P. State Public Services Tribunal, ... on 17 October, 2019
Equivalent citations: AIRONLINE 2019 ALL 1850, (2019) 11 ADJ 1 (ALL) (2020) 1 ALL WC 674, (2020) 1 ALL WC 674
Bench: Anil Kumar, Saurabh Lavania
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH A.F.R. Reserved Court No. - 3 Case :- SERVICE BENCH No. - 6880 of 2019 Petitioner :- State Of U.P. Thru. Secy. Home, Govt. Of U.P., Lucknow & Ors Respondent :- U.P. State Public Services Tribunal, Lucknow & Anr. Counsel for Petitioner :- C.S.C. Counsel for Respondent :- C.S.C.,Ganesh Kumar Gupta,Manish Kumar Hon'ble Anil Kumar,J.
Hon'ble Saurabh Lavania,J.
(As per Hon'ble Anil Kumar, J.) Heard Sri Manjeev Shukla, learned counsel for the petitioners/State and Sri Manish Kumar, Senior Advocate assisted by Sri Ganesh Kumar Gupta, learned counsel for the claimant-respondent no.2/ Sushil Kumar Mishra.
By means of present writ petition, petitioners have prayed for quashing of the impugned judgment and order dated 4.7.2018 passed by U.P. State Public Service Tribunal, Indira Bhawan,Lucknow(herein after referred as the ''Tribunal') in Claim Petition No.1035 of 2014 (Sushil Kumar Mishra Vs. State of U.P. and others).
Facts, in brief, as submitted by learned counsel for the petitioners are that on 2.11.2011 a Truck having registration no. RJ-14 UB3210 was intercepted by the police of the police-station Chakeri, District Kanpur Nagar .It was found that in the said truck cows and bullocks were being carried for slaughtering. When the police interrogated the driver of the truck, namely, Ram Kumar son of Prem Singh and other persons present in the truck , they stated that claimant/respondent no.2 by putting his motorcycle was facilitating the smooth movement of the truck so that the cattle present in the truck may be taken to Bihar for slaughtering.
In view of the said fact, an F.I.R. was lodged on the same day i.e. on 2.11.2011 in case crime no. 1247 of 2011 at police-station Chakeri District Kanpur under section 11 of the Animal Cruelty Act and 3/5 and 8 of Cow Slaughter Act.
After investigation, the Investigating officer has submitted charge-sheet before the court concerned. Accordingly , a case no. 1A of 2012 ( State Vs. Sushil Kumar Mishra) and case no.1354A of 2012 ( State Vs. Gyanandra Bahadur Singh and Sunil Kumar Shukla) as case crime no.1247 of 2011 under Sectin 3/8,5Ka/34 Cow Slaughter Act and section 11/34 of Animal Cruelty Act, Police Station Chakeri District Kanpur Nagar was registered. By means of order dated 28.3.2017, Additional Chief Metropolitan Magistrate, Court no.3 Kanpur Nagar acquitted the claimant-respondent no.2 and other persons from the charges levelled against them.
In the meantime, under rule 14(1) of U.P. Police Officer of Subordinate Rank (Punishment and Appeal) Rule ,1991 (herein after referred as the ''Rules,1991')a departmental enquiry was initiated against the claimant-respondent no.2 and a charge-sheet dated 21.02.2012 was issued to the claimant-respondent no.2, to which he submitted a reply on 3.3.2012.Thereafter enquiry officer conducted disciplinary proceeding in the matter in question and submit his report dated 27.9.2012 to the punishing authority. On 29.9.2012 D.I.G./ S.S.P.,Kanpur Nagar/punishing authority issued a show cause notice to the claimant-respondent no.2 alongwith enquriy report, to which he submitted his reply. By order dated 23.5.2013, punishing authority/ S.S.P. Kanpur Nagar dismissed the claimant- respondent. no.2 from service.
Aggrieved by the order dated 23.5.2013, claimant-respondent no.2 filed an appeal before Deputy Inspector General of Police, Kanpur Zone, Kanpur Nagar, the same was dismissed vide order dated 30.6.2013.
Against the orders dated 23.5.2013 and 30.6.2013, claimant-respondent no.2 filed revision, the same was also dismissed by Inspector General of Police, Kanpur Zone, Kanpur by order dated 24.1.2014.
The claimant-respondent no.2 filed a claim petition no.1035 of 2014 challenging the punishment order dated 23.5.2013, appellate order dated 30.6.2013 and revisional order dated 24.1.2014 before the Tribunal . By order dated 4.7.2018 the Tribunal allowed the claim petition of the claimant-respondent no.2 and directed to reinstate the claimant-respondent no.2 in service and further directed that so far as the matter in respect to back wages for the period from dismissal in service to the period of reinstatement in service is concerned, the competent authority shall pass a speaking order within three months from the date of receipt of the certified copy of the order.
Sri Manjeev Shukla learned counsel for the petitioners while challenging the impugned judgment and order dated 4.7.2018 passed by the Tribunal in Claim Petition No.1035 of 2014 ( Sushil Kumar Mishra Vs. State of U.P. and others) submits that the same is erroneous and unsustainable in the eye of law as the Tribunal has allowed the claim petition only on the ground that claimant/respondent no.2 has been acquitted in the criminal trial therefore he could not have been punished in the disciplinary proceedings in relation to the same charges, matter, the view taken by the Tribunal is contrary to the law laid down by Hon'ble Supreme Court in its various judgments.
He submits that Hon'ble the Supreme Court in its catena of judgments has categorically held that a criminal trial and disciplinary proceedings are carried out for entirely different purpose and the standard of proof is also different in both the proceedings therefore, merely because acquittal order has been passed in the criminal trial result of the disciplinary proceedings against a Government Servant will not stand affected.
He also submits that the Apex Court in catena of judgemtns has categorically held that in a criminal trial on the basis of evidence produced by the prosecuting agency the case has to be proved beyond reasonable doubt whereas in disciplinary proceedings evidence relied upon has to be tested on preponderance of probabilities therefore, even if the Government Servant has been acquitted in criminal trial , the said acquittal will not affect the result of the disciplinary proceedings.
He further submits that from a bare persual of the inquiry report submitted by the inquiry officer in the present matter it is patently manifest that a detailed inquiry has been conducted in the matter in which statement of witness have recorded in presence of the claimant-respondent no.2 and he has also been afforded opportunity to cross examine the prosecution witnesses in the inquiry and thereafter inquiry officer has concluded that the charges leveled against the claimant-respondent no.2 are proved as such merely because in relation to the same matter claimant-respondent no.2 has been acquitted in criminal trial, the aforesaid disciplinary inquiry cannot stand vitiated.
It is also submitted by learned counsel for the petitioners that in the disciplinary inquiry it has been found proved that the conduct of claimant- respondent no.2 in getting the Truck No. RJ-14 UB-3210 passed through area is not proper and has ultimately tarnished the image of the disciplined force.
In rebuttal, Sri Manish Kumar, learned counsel for claimant-respondent no.2 submits that on the same incident, same set of facts, circumstances and evidence the crime case no.1247/2011 was registered in which the claimant-respondent no.2 has been honorably acquitted. The dismissal of the claimant-respondent no.2 on the pretext that charge-sheet has been filed against him in the criminal case is unsustainable as mere filing of the charge-sheet by the police would not amount to conviction of the claimant- respondent no.2 . In the instant case, the claimant-respondent no.2 has been honorably acquitted by the trial court in the criminal case vide judgment dated 28.3.2017.
He further submits that it is a settled law that where a criminal case in departmental proceedings are based on similar facts and evidences and the employees had been acquitted in the criminal case, the dismissal would be unsustainable. In this regard, he has placed reliance on the following judgments:-
1. S. Bhaskar Reddy and another Vs. Superintendent of Police and another, (2015) 2 SCC 365
2. G.M.Tank Vs. State of Gujrat and others (2006) 5 SCC 446
3. Shashi Bhushan Prasad Vs. Inspector General Central Industrial Security Force and others (2019) SCC online SC 952
4. Joginder Singh Vs. Union Territory of Chandigarh and others (2015) 2 SCC 377.
Learned counsel for the claimant-respondent no.2 submits that in the instant case, the two other persons named alongwith the opposite party no.2 in the F.I.R. namely Constable Gyanendra Bahadur Singh and Constable Sunil Kumar Shukla, against whom also the charge-sheet was filed by the police in the criminal case, have been awarded only a censure entry while in the case of the claimant-respondent no.2, the order of dismissal has been passed which is not only disproportionate to the charges levelled against the claimant-respondent no.2 but also discriminatory and in violation of Article 14 of the Constitution of India.
He also submits that once it is not disputed by the petitioners that the order of dismissal passed against the claimant-respondent no.2 is on the basis of same criminal case, same set of facts, documents and evidence and when the claimant-respondent no.2 (alongwith Constable Gyanendra Bahadur Singh and Constable Sunil Kumar Shukla) has been acquitted honourably on 28.3.2017, the punishment of dismissal is arbitrary and the judgment dated 4.7.2018 passed by the U.P. State Public Services Tribunal being a reasoned and speaking order and in accordance with law settled in the judgments of the Hon'ble the Apex Court, is full justified and there is no infirmity in the same. Hence, the writ petition is liable to be dismissed with cost.
We have heard learned counsel for the parties and gone through the record.
The undisputed facts of the present case are that an incident took place on 2.11.2011 and an F.I.R. was lodged on the same day i.e. on 2.11.2011 as case crime no. 1247 of 2011 at police-station Chakeri, District-Kanpur under section 11 of the Animal Cruelty Act and section 3/5 and 8 of Cow Slaughter Act. After investigation, the Investigating officer submitted the charge-sheet before the court concerned. Thereafter a case no. 1A of 2012 ( State Vs. Sushil Kumar Mishra) and case no.1354A of 2012 (State Vs. Gyanandra Bahadur Singh and Sunil Kumar Shukla) as case crime no.1247 of 2011 under Section 3/8,5Ka/34 Cow Slaughter Act and section section 11/34 of Animal Cruelty Act, Police Station Chakeri, District-Kanpur Nagar was registered. By means of order dated 28.3.2017, Additional Chief Metropolitan Magistrate, Court no.3, Kanpur Nagar acquitted the claimant-respondent no.2 and other persons from the charges levelled against them. The court concerned while acquitting the claimant-respondent no.2 and other co-accused persons has given the following findings:-
"प्रश्नगत मामले में अभियोजन द्वारा किसी जानवर का वध किया जाना या चोटहिल होना या मृत्यु होने का कथन नहीं किया गया है | कथित ट्रक थाना चकेरी, जनपद कानपुर नगर में सीज किया गया है जो बिहार राज्य की सीमा से बहुत ही दूर है | ऐसे में मात्र अभियुक्त के पुलिस के समक्ष दिये गये बयान के आधार पर परिवहन की बात साबित नहीं होती है | अभियोजन द्वारा जो साक्षी प्रस्तुत किये गये है, उनमे से किसी भी साक्षी ने ट्रक में लदे पशुओं से अभियुक्तगण उपरोक्त द्वारा निर्दयता पूर्वक करने का कथन नहीं किया गया है | जिससे धारा -11 पशुक्रूरता अधिनियम उपरोक्त अभियुक्तगण के विरुद्ध साबित नहीं होता है | उपरोक्त किये गये सम्यक विश्लेषण के उपरान्त न्यायालय इस मत पर पहुँचती है कि अभियुक्तगण सुशील कुमार मिश्रा ज्ञानेन्द्र बहादुर सिह व सुनील शुक्ला के विरुद्ध अभियोजन धारा 3/8 सपठित धारा -34, 5 क गो वध निवारण अधिनियम व धारा -11 पशु क्रूरता निवारण अधिनियम का आरोप युक्तियुक्त संदेह से परे साबित करने में असफल रहा है। अभियुक्तगण सुशील कुमार मिश्रा , ज्ञानेंद्र बहादुर सिंह व् सुनील शुक्ला को धारा 3/8 सपठित धारा -34,5 क गो वध निवारण अधिनियम व धारा -11 पशु क्रूरता निवारण अधिनियम के अन्तर्गत दोषमुक्त किये जाने योग्य है।"
Further in the present case, In the meantime a departmental proceedings against the claimant-respondent no.2 under rule 14(1) of U.P. Police Officer of Subordinate Rank ( Punishment and Appeal) Rule ,1991 (herein after referred as the ''Rules,1991') and a charge-sheet was issued on 21.2.2012 to the claimant-respondent no.2, to which he submitted a reply on 3.3.2012 denying the charges leveled against him. Thereafter enquiry officer conducted the disciplinary proceedings and submitted his report dated 27.9.2012 to the punishing authority. On 29.9.2012 D.I.G./ S.S.P. Kanpur Nagar/ punishing authority issued a show cause notice to the claimant-respondent no.2 alongwith enquriy report, to which he submitted his reply. By order dated 23.5.2013, punishing authority/ S.S.P. Kanpur Nagar, dismissed the claimant-respondent no.2 from service. Thereafter claimant-respondent no.2 filed an appeal before Deputy Inspector General of Police, Kanpur Zone, Kanpur Nagar, the same was dismissed vide order dated 30.6.2013. Aggrieved by the said order, claimant-respondent has filed revision under the Rules,1991 , the same was also dismissed by Inspector Generl of Police, Kanpur Zone, Kanpur by order dated 24.1.2014.
The core question is to be considered under what circumstances acquittal in criminal case will absolve/exonerate the petitioner from departmental punishment. In the present case, as noticed, the punishment imposed on the petitioners is not based on the conclusion of the criminal case. It is based on the findings recorded in the departmental inquiry which is based on the depositions of witnesses in the departmental inquiry. The standard of proof required in the departmental inquiry and in the criminal case are different. It is profitable to refer to certain judgments of Supreme Court on this aspect.
In Union of India Vs. Sardar Bahadur, (1972) SCC 618, the Hon'ble Supreme Court has held as under:
"15. A finding cannot be characterized as perverse or unsupported by any relevant materials if it is a reasonable inference from proved facts. Now what are the proved facts: Nand Kumar as representative of Ram Sarup Mam Chand and Mam Chand and Company of Calcutta filed five applications for licences to set-up steel re-rolling mills on 14th June, 1956. On 25th June, 1956, a cheque drawn in favour of P.S. Sundaram was given to the respondent by Nand Kumar for Rs. 2500; the cheque was endorsed and the amount credited in the account of the respondent. When the respondent borrowed the amount in question from Nand Kumar, he was not working in the Industries Act Section. Nand Kumar knew that the respondent was working in the Steel & Cement Section of the Ministry and the applications for the grant of licences for setting up the steel plant re-rolling mills would go to that section. Even if the applications were to be dealt with at the initial stage by the Industries Act Section the respondent at least was expected to know that in due course the section in which he was working had to deal with the same. This is borne out by the fact that in July 1956 copies of the applications were actually sent to the Steel & Cement Section where the respondent was working. If he, therefore, borrowed money from Nand Kumar a few days earlier it seems rather clear that he placed himself under pecuniary obligation to a person who was likely to have official dealings with him. The words likely to have official dealings take within their ambit the possibility of future dealings between the officer concerned and the person from whom he borrowed money. A disciplinary proceeding is not a criminal trial. The standard proof required is that of preponderance of probability and not proof beyond reasonable doubt. If the inference that Nand Kumar was a person likely to have official dealings with the respondent was one which a reasonable person would draw from the proved facts of the case, the High Court cannot sit as a court of appeal over a decision based on it. Where there are some relevant materials which the authority has accepted and which materials may reasonably support the conclusion that the officer is guilty, it is not the function of the High Court exercising its jurisdiction under Article 226 to review the materials and to arrive at an independent finding on the materials. If the enquiry has been properly held the question of adequacy or reliability of the evidence cannot be canvassed before the High Court (See : State of Andhra Pradesh v. S. Sree Rama Rao, AIR 1963 SC 1723) No doubt there was no separate finding on the question whether Nand Kumar was a person likely to have official dealings with the respondent by the Inquiring Officer or the President. But we think that such a finding was implied when they said that Charge No. 3 has been proved. The only question was whether the proved facts of the case would warrant such an inference. Tested in the light of the standard of proof necessary to enter a finding of this nature, we are satisfied that on the material facts proved the inference and the implied finding that Nand Kumar was a person likely to have official dealings with the respondent were reasonable."
In Depot Manager, A.P. SRTC Vs. Mohd. Yousuf Miya, (1997) 2 SCC 699, the Apex Court expressed its view as under:
"8. We are in respectful agreement with the above view. The purpose of departmental enquiry and of prosecution are 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 (sic 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 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. The enquiry in the departmental proceedings relates to the conduct of the delinquent officer and proof in that behalf is not as high as in an offence in criminal charge. It is seen that invariably the departmental enquiry has to be conducted expeditiously so as to effectuate efficiency in public administration and the criminal trial will take its own course. The nature of evidence in criminal trial is entirely different from the departmental proceedings. In the former, prosecution is to prove its case beyond reasonable doubt on the touchstone of human conduct. The standard of proof in the departmental proceedings is not the same as of the criminal trial. The evidence also is different from the standard point of the Evidence Act. The evidence required in the departmental enquiry is not regulated by the Evidence Act."
In the case of Suresh Pathrella Vs. Oriental Bank of Commerce, (2006) 10 SCC 572, the Apex Court held as under:
"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."
In West Bokaro Colliery (TISCO Ltd.) Vs. Ram Pravesh Singh, (2008) 3 SCC 729, the Apex Court held as under:
"20. The 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. 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."
In Mazdoor Sangh Vs. Usha Breco Ltd., (2008) 5 SCC 554, the Apex Court laid down:
"33. Before a departmental proceeding, the standard of proof is not that the misconduct must be proved beyond all reasonable doubt but the standard of proof is as to whether the test of preponderance of probability has been met. The approach of the Labour Court appeared to be that the standard of proof on the management was very high. When both the parties had adduced evidence, the Labour Court should have borne in mind that the onus of proof loses all its significance for all practical purpose."
In Samar Bahadur Singh Vs. State of U.P., (2011) 9 SCC 94, the Apex Court categorically held:
"7. Acquittal in the criminal case shall have no bearing or relevance to the facts of the departmental proceedings as the standard of proof in both the cases are totally different. In a criminal case, the prosecution has to prove the criminal case beyond all reasonable doubt whereas in a departmental proceedings, the department has to prove only preponderance of probabilities. In the present case, we find that the department has been able to prove the case on the standard of preponderance of probabilities. Therefore, the submissions of the counsel appearing for the appellant are found to be without any merit".
In the case of Karnataka SRTC Vs. M.G. Vittal Rao, (2012) 1 SCC 442, Supreme Court has held as under:
"11.The question of considering reinstatement after decision of acquittal or discharge by a competent criminal court arises only and only if the dismissal from services was based on conviction by the criminal court in view of the provisions of Article 311(2)(b) [sic Article 311(2) second proviso (a)] of the Constitution of India, or analogous provisions in the statutory rules applicable in a case. In a case where enquiry has been held independently of the criminal proceedings, acquittal in a criminal court is of no help. The law is otherwise. Even if a person stood acquitted by a criminal court, domestic enquiry can be held, the reason being that the standard of proof required in a domestic enquiry and that in a criminal case are altogether different. In a criminal case, standard of proof required is beyond reasonable doubt while in a domestic enquiry it is the preponderance of probabilities that constitutes the test to be applied."
The Apex Court in the case of Inspector General of Police Vs. S. Samuthiram, (2013) 1 SCC 598 emphasised:
"6. 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 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 acquitted 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."
In SBI Vs. Narendra Kumar Pandey, (2013) 2 SCC 740, the Apex Court held as under:
"23. The inquiring authority has examined each and every charge levelled against the charged officer and the documents produced by the presenting officer and came to the conclusion that most of the charges were proved. In a departmental enquiry, the disciplinary authority is expected to prove the charges on preponderance of probability and not on proof beyond reasonable doubt. Reference may be made to the judgments of this Court in Union of India v. Sardar Bahadur and R.S. Saini v. State of Punjab. The documents produced by the Bank, which were not controverted by the charged officer, support all the allegations and charges levelled against the charged officer. In a case, where the charged officer had failed to inspect the documents in respect of the allegations raised by the Bank and not controverted, it is always open to the inquiring authority to accept the same".
In Commr. of Police Vs. Mehar Singh, (2013) 7 SCC 685, the Apex Court held as under:
"24. We find no substance in the contention that by cancelling the respondents candidature, the Screening Committee has overreached the judgments of the criminal court. We are aware that the question of correlation between a criminal case and a departmental enquiry does not directly arise here, but, support can be drawn from the principles laid down by this Court in connection with it because the issue involved is somewhat identical, namely, whether to allow a person with doubtful integrity to work in the department. While the standard of proof in a criminal case is the proof beyond all reasonable doubt, the proof in a departmental proceeding is preponderance of probabilities. Quite often criminal cases end in acquittal because witnesses turn hostile. Such acquittals are not acquittals on merit. An acquittal based on benefit of doubt would not stand on a par with a clean acquittal on merit after a full fledged trial, where there is no indication of the witnesses being won over. In R.P. Kapur v. Union of India this Court has taken a view that departmental proceedings can proceed even though a person is acquitted when the acquittal is other than honourable."
In SBI Vs. R. Periyasamy, (2015) 3 SCC 101, the Apex Court held as under:-
"11. It is interesting to note that the learned Single Judge went to the extent of observing that the concept of preponderance of probabilities is alien to domestic enquiries. On the contrary, it is well known that the standard of proof that must be employed in domestic enquiries is in fact that of the preponderance of probabilities. In Union of India v. Sardar Bahadur, this Court held that a disciplinary proceeding is not a criminal trial and thus, the standard of proof required is that of preponderance of probabilities and not proof beyond reasonable doubt. This view was upheld by this Court in SBI v. Ramesh Dinkar Punde. More recently, in SBI v. Narendra Kumar Pandey, this Court observed that a disciplinary authority is expected to prove the charges levelled against a bank officer on the preponderance of probabilities and not on proof beyond reasonable doubt."
In the case of S. Bhaskar Reddy (supra) after placing earlier judgment rendered by Hon'ble the Apex Court in the case of SBI Vs. R. Periyasamy, (2015) 3 SCC 101, Hon'ble the Apex Court held as under:-
"An acquittal based on benefit of doubt would not stand on a par with a clean acquittal on merits after a full-fledged trial, where there is no indication of the witnesses being won over. The long-standing view on this subject was settled by this Court in R.P. Kapur Vs. Union of India, whereby it was held that a departmental proceeding can proceed even though a person is acquitted when the acquittal is other than honourable."
The judgment of Captain M. Paul Anthony and G.M. Tank (supra) were again considered by the Supreme Court in Divisional Controller, Karnataka State Road Transport Corporation Vs. M.G. Vittal Rao, (2012) 1 SCC 442. In para-24, the Apex Court considered the judgment of Captain M. Paul Anthony(supra), and opined that this judgment is not of universal application. The judgment of G.M. Tank (supra) was considered in para-23 of the judgment. After considering this judgment and after taking note of the basic judgment of R.P. Kapoor (supra), the Apex Court held that the departmental inquiry and criminal case can run simultaneously despite the fact that the same are founded upon the same factual matrix. It was held that 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 departmental inquiry. This view is followed by the Supreme Court in State of West Bengal and others Vs. Sankar Ghosh- (2014) 3 SCC 610. In this case also, the Apex Court explained the judgment of Captain M. Paul Anthony and G.M. Tank (supra). In para, 16, 17 and 18 of this judgment, the Apex Court held that the proof required in the departmental inquiry is different than the proof required in a criminal case. In Indian Overseas Bank, Annasalai and another Vs. P. Ganesan and others- (2008) 1 SCC 650, the Apex Court reiterated the same principle. In Ajit Kumar Nag Vs. Indian Oil Corporation Ltd., (2005) 7 SCC 764, it was held as under:-
"....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 Nelson Motis Vs. Union of India, (1994) 4 SCC 711, the Apex Court held as under:
"5. So far the first point is concerned, namely whether the disciplinary proceedings 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 initiation of the departmental disciplinary proceeding were not exactly the same which were the subject matter of the criminal case."
In NOIDA Entrepreneurs Assn. Vs. NOIDA, (2007) 10 SCC 385, Supreme Court has held as under:
"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."
In the case of State (NCT of Delhi) Vs. Ajay Kumar Tyagi, (2012) 9 SCC 685, the Apex Court has held as under:
"25. We are, therefore, of the opinion that the exoneration in the departmental proceeding ipso facto would not result in the quashing of the criminal prosecution. We hasten to add, however, that if the prosecution against an accused is solely based on a finding in a proceeding and that finding is set aside by the superior authority in the hierarchy, the very foundation goes and the prosecution may be quashed. But that principle will not apply in the case of the departmental proceeding as the criminal trial and the departmental proceeding are held by two different entities. Further, they are not in the same hierarchy."
Hon'be the High Court of Madhya Pradesh in the case of R.K. Solanki vs. Central Bank of India, 2018 Lab IC 1652 has held as under :-
9. The scope of departmental inquiry and criminal cases have been considered by the Apex Court in number of cases. The said issue is no longer res integra. In B.C. Chaturvedi Vs. Union of India, (1995) 6 SCC 749 the Supreme Court has 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."
In Bank of India Vs. Degala Suryanarayana, (1999) 5 SCC 762, it is held by the Apex Court as under:
"11. Strict rules of evidence are not applicable to departmental enquiry proceedings. The only requirement of law is that the allegation against the delinquent officer must be established by such evidence acting upon which a reasonable person acting reasonably and with objectivity may arrive at a finding upholding the gravamen of the charge against the delinquent officer. Mere conjecture or surmises cannot sustain the finding of guilt even in departmental enquiry proceedings. The court exercising the jurisdiction of judicial review would not interfere with the findings of fact arrived at in the departmental enquiry proceedings excepting in a case of mala fides or perversity i.e. where there is no evidence to support a finding or where a finding is such that no man acting reasonably and with objectivity could have arrived at that finding. The court cannot embark upon reappreciating the evidence or weighing the same like an appellate authority. So long as there is some evidence to support the conclusion arrived at by the departmental authority, the same has to be sustained. In Union of India v. H.C. Goel the Constitution Bench has held:
The High Court can and must enquire whether there is any evidence at all in support of the impugned conclusion. In other words, if the whole of the evidence led in the enquiry is accepted as true, does the conclusion follow that the charge in question is proved against the respondent? This approach will avoid weighing the evidence. It will take the evidence as it stands and only examine whether on that evidence legally the impugned conclusion follows or not."
In Lalit Popli Vs. Canara Bank, (2003) 3 SCC 583, Supreme Court has held as under:
"16. It is fairly well settled that the approach and objective in criminal proceedings and the disciplinary proceedings are altogether distinct and different. In the disciplinary proceedings the preliminary question is whether the employee is guilty of such conduct as would merit action against him, whereas in criminal proceedings the question is whether the offences registered against him are established and if established what sentence should be imposed upon him. The standard of proof, the mode of enquiry and the rules governing the enquiry and trial are conceptually different. (See State of Rajasthan v. B.K. Meena.) In case of disciplinary enquiry the technical rules of evidence have no application. The doctrine of proof beyond doubt has no application. Preponderance of probabilities and some material on record are necessary to arrive at the conclusion whether or not the delinquent has committed misconduct.
17. While exercising jurisdiction under Article 226 of the Constitution the High Court does not act as an appellate authority. Its jurisdiction is circumscribed by limits of judicial review to correct errors of law or procedural errors leading to manifest injustice or violation of principles of natural justice. Judicial review is not akin to adjudication of the case on merits as an appellate authority.
18. In B.C. Chaturvedi v. Union of India the scope of judicial review was indicated by stating that review by the court is of decision-making process and where the findings of the disciplinary authority are based on some evidence, the court or the tribunal cannot reappreciate the evidence and substitute its own finding."
In M.V. Bijlani Vs. Union of India, (2006) 5 SCC 88, Supreme Court opined as under:
"25. It is true that the jurisdiction of the court in judicial review is limited. Disciplinary proceedings, however, being quasi-criminal in nature, there should be some evidence to prove the charge. Although the charges in a departmental proceeding are not required to be proved like a criminal trial i.e. beyond all reasonable doubt, we cannot lose sight of the fact that the enquiry officer performs a quasi-judicial function, who upon analysing the documents must arrive at a conclusion that there had been a preponderance of probability to prove the charges on the basis of materials on record. While doing so, he cannot take into consideration any irrelevant fact. He cannot refuse to consider the relevant facts. He cannot shift the burden of proof. He cannot reject the relevant testimony of the witnesses only on the basis of surmises and conjectures. He cannot enquire into the allegations with which the delinquent officer had not been charged with."
In the case of S. Bhaskar Reddy and another Vs. Superintendent of Police and another (2015) 2 SCC 365 has held as under:-
"21.It is an undisputed fact that the charges in the criminal case and the Disciplinary proceedings conducted against the appellants by the first respondent are similar. The appellants have faced the criminal trial before the Sessions Judge, Chittoor on the charge of murder and other offences of IPC and SC/ST (POA) Act. Our attention was drawn to the said judgment which is produced at Exh. P-7, to evidence the fact that the charges in both the proceedings of the criminal case and the Disciplinary proceeding are similar. From perusal of the charge sheet issued in the disciplinary proceedings and the enquiry report submitted by the Enquiry Officer and the judgment in the criminal case, it is clear that they are almost similar and one and the same. In the criminal trial, the appellants have been acquitted honourably for want of evidence on record. The trial judge hascategorically recorded the finding of fact on proper appreciation and evaluation of evidence on record and held that the charges framed in the criminal case are not proved against the appellants and therefore they have been honourably acquitted for the offences punishable under 3 (1) (x) of SC/ST (POA) Act and under Sections 307 and 302 read with Section 34 of the IPC. The law declared by this Court with regard to honourable acquittal of an accused for criminal offences means that they are acquitted for want of evidence to prove the charges.
The meaning of the expression "honourable acquittal" was discussed by this Court in detail in the case of Deputy Inspector General of Police & Anr. v. S. Samuthiram, (2013) 1 SCC 598, the relevant para from the said case reads as under :-
"24. The meaning of the expression "honourable acquittal" came up for consideration before this Court in RBI v. Bhopal Singh Panchal (1994) 1 SCC 541. In that case, this Court has considered the impact of Regulation 46(4) dealing with honourable acquittal by a criminal court on the disciplinary proceedings. In that context, this Court held that the mere acquittal does not entitle an employee to reinstatement in service, the acquittal, it was held, has to be honourable. The expressions "honourable acquittal", "acquitted of blame", "fully exonerated" are unknown to the Code of Criminal Procedure or the Penal Code, which are coined by judicial pronouncements. It is difficult to define precisely what is meant by the expression "honourably acquitted". When the accused is acquitted after full consideration of prosecution evidence and that the prosecution had miserably failed to prove the charges levelled against the accused, it can possibly be said that the accused was honourably acquitted."
After examining the principles laid down in the above said case, the same was reiterated by this Court in a recent decision in the case of Joginder Singh v. Union Territory of Chandigarh & Ors.(2015) 2 SCC 377.
Further, in Capt. M. Paul Anthony v. Bharat Gold Mines Ltd. & Anr. (supra) this Court has held as under:-
"34. There is yet another reason for discarding the whole of the case of the respondents. As pointed out earlier, the criminal case as also the departmental proceedings were based on identical set of facts, namely, "the raid conducted at the appellant's residence and recovery of incriminating articles there from". The findings recorded by the enquiry officer, a copy of which has been placed before us, indicate that the charges framed against the appellant were sought to be proved by police officers and panch witnesses, who had raided the house of the appellant and had effected recovery. They were the only witnesses examined by the enquiry officer and the enquiry officer, relying upon their statements, came to the conclusion that the charges were established against the appellant. The same witnesses were examined in the criminal case but the Court, on a consideration of the entire evidence, came to the conclusion that no search was conducted nor was any recovery made from the residence of the appellant. The whole case of the prosecution was thrown out and the appellant was acquitted. In this situation, therefore, where the appellant is acquitted by a judicial pronouncement with the finding that the "raid and recovery" at the residence of the appellant were not proved, it would be unjust, unfair and rather oppressive to allow the findings recorded at the ex parte departmental proceedings to stand.
35. Since the facts and the evidence in both the proceedings, namely, the departmental proceedings and the criminal case were the same without there being any iota of difference, the distinction, which is usually drawn as between the departmental proceedings and the criminal case on the basis of approach and burden of proof, would not be applicable to the instant case."
Further, in the case of G.M. Tank v. State of Gujarat and Ors.(supra) this Court held as under:-
"20..........Likewise, the criminal proceedings were initiated against the appellant for the alleged charges punishable under the provisions of the PC Act on the same set of facts and evidence. It was submitted that the departmental proceedings and the criminal case are based on identical and similar (verbatim) set of facts and evidence. The appellant has been honourably acquitted by the competent court on the same set of facts, evidence and witness and, therefore, the dismissal order based on the same set of facts and evidence on the departmental side is liable to be set aside in the interest of justice.
30. The judgments relied on by the learned counsel appearing for the respondents are distinguishable on facts and on law.........It is true that the nature of charge in the departmental proceedings and in the criminal case is grave. The nature of the case launched against the appellant on the basis of evidence and material collected against him during enquiry and investigation and as reflected in the charge-sheet, factors mentioned are one and the same. In other words, charges, evidence, witnesses and circumstances are one and the same. In the present case, criminal and departmental proceedings have already noticed or granted on the same set of facts, namely, raid conducted at the appellant's residence, recovery of articles therefrom. The Investigating Officer Mr V.B. Raval and other departmental witnesses were the only witnesses examined by the enquiry officer who by relying upon their statement came to the conclusion that the charges were established against the appellant. The same witnesses were examined in the criminal case and the criminal court on the examination came to the conclusion that the prosecution has not proved the guilt alleged against the appellant beyond any reasonable doubt and acquitted the appellant by its judicial pronouncement with the finding that the charge has not been proved. It is also to be noticed that the judicial pronouncement was made after a regular trial and on hot contest. Under these circumstances, it would be unjust and unfair and rather oppressive to allow the findings recorded in the departmental proceedings to stand.
31. In our opinion, such facts and evidence in the departmental as well as criminal proceedings were the same without there being any iota of difference, the appellant should succeed. The distinction which is usually proved between the departmental and criminal proceedings on the basis of the approach and burden of proof would not be applicable in the instant case. Though the finding recorded in the domestic enquiry was found to be valid by the courts below, when there was an honourable acquittal of the employee during the pendency of the proceedings challenging the dismissal, the same requires to be taken note of and the decision in Paul Anthony case will apply. We, therefore, hold that the appeal filed by the appellant deserves to be allowed."
Hon'ble the Apex Court in the case of Shashi Bhushan Prasad Vs. Inspector General Central Industrial Security Force and others, AIR 2019 SC 3586 after taking into consideration the various judgments on the point in issue has held as under:-
"The scope of departmental enquiry and judicial proceedings and the effect of acquittal by a criminal Court has been examined by a three Judge Bench of this Court in Depot Manager A.P. State Road Transport Corporation Vs. Mohd. Yousuf Miya and Others, 1997 (2) SCC 699. The relevant para is as under:-
"The purpose of departmental enquiry and of prosecution are 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 (sic 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 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. The enquiry in the departmental proceedings relates to the conduct of the delinquent officer and proof in that behalf is not as high as in an offence in criminal charge. It is seen that invariably the departmental enquiry has to be conducted expeditiously so as to effectuate efficiency in public administration and the criminal trial will take its own course. The nature of evidence in criminal trial is entirely different from the departmental proceedings. In the former, prosecution is to prove its case beyond reasonable doubt on the touchstone of human conduct. The standard of proof in the departmental proceedings is not the same as of the criminal trial. The evidence also is different from the standard point of the Evidence Act. The evidence required in the departmental enquiry is not regulated by the Evidence Act. Under these circumstances, what is required to be seen is whether the departmental 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. In this case, we have seen that the charge is failure to anticipate the accident and prevention thereof. It has nothing to do with the culpability of the offence under Sections 304A and 338, IPC. Under these circumstances, the High Court was not right in staying the proceedings."
18. The exposition has been further affirmed by a three Judge Bench of this Court in Ajit Kumar Nag Vs. General Manager (PJ), Indian Oil Corporation Limited, Haldia and Others ,2005 (7) SCC 764, this Court held as under: -
"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 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. 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". 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."
A Division Bench of this Court in the case of Sukh Ram Vs. State of U.P. and others, 2018 (4) ESC 1772 after taking into consideration the various judgments on the point in issue has held as under:-
"(19) The principles discussed above can be summed up and summarized as follows:
19.1. When charge(s) of misconduct is proved in an enquiry the quantum of punishment to be imposed in a particular case is essentially the domain of the departmental authorities;
19.2. The Courts cannot assume the function of disciplinary/departmental authorities and to decide the quantum of punishment and nature of penalty to be awarded, as this function is exclusively within the jurisdiction of the competent authority;
19.3. Limited judicial review is available to interfere with the punishment imposed by the disciplinary authority, only in cases where such penalty is found to be shocking to the conscience of the Court;
19.4. Even in such a case when the punishment is set aside as shockingly disproportionate to the nature of charges framed against the delinquent employee, the appropriate course of action is to remit the matter back to the disciplinary authority or the appellate authority with direction to pass appropriate order of penalty. The Court by itself cannot mandate as to what should be the penalty in such a case.
19.5. The only exception to the principle stated in para 19.4 above, would be in those cases where the co-delinquent is awarded lesser punishment by the disciplinary authority even when the charges of misconduct were identical or the co-delinquent was foisted with more serious charges. This would be on the Doctrine of Equality when it is found that the concerned employee and the co-delinquent are equally placed. However, there has to be a complete parity between the two, not only in respect of nature of charge but subsequent conduct as well after the service of charge sheet in the two cases. If the co-delinquent accepts the charges, indicating remorse with unqualified apology, lesser punishment to him would be justifiable.
From the bare perusal of the charge-sheet dated 21.02.2012 and contents of F.I.R. as well as judgment of Trial court it transpires/ apparent that charge(s) in the departmental proceedings are nothing but allegations made in the F.I.R. dated 02.11.2011, in relation to which charge-sheet was filed in the court and untimately claimant-respondent no.2 was acquitted vide judgment dated 28.03.2017 by the trial court. It further appears that the witnesses mentioned in the charge-sheet to prove the charge in the departmental proceedings are Sri Jai Narain Singh, Sri Jai Shanker Prasad , Sri Jagdish Prasad, Sri Hemant Singh and Sri Ram Adhar Gautam and before trial court, out the same , Sri Jai Shanker Prasad, Sri Jagdish Prasad , Sri Hemant Sinigh and Sri Ram Adhar Gautam were produced as prosecution witnesses. The claimant-respondent no.2 was asked to submit his reply on the charges similar to the allegation made in criminal proceedings in disciplinary proceedings under Rule 14(1) of Rules 1991.
Further in criminal case after filing of the report in relation to F.I.R. the case(s) were registered against the claimant-respondent no.2 and other co-accused person in which by means of judgment and order dated 28.3.2017, the trial court court had Honorable acquitted the claimant-respondent no.2 and other co-accused after considering the evidence and statement of prosecution witnesses name above.
From the aforesaid, we are of the view that the case of the claimant-respondent no.3 is squarely covered under the judgment of Hon'ble Apex Court pased in the case of S. Bhaskar Reddy ( supra) Taking into consideration the said fact as well as the findings given by the Tribunal while allowing the claim petition quoted below, we do not find any illegality or infirmity on the part of the Tribunal thereby allowing the claim petition on the point in issue.
"इस तरह उपरोक्त विवेचना के आधार पर यह स्पष्ट हो जाता है कि याची के विरुद्ध पशु तस्करों द्वारा पशुओं को ट्रक द्वारा वध किये जाने हेतु ले जाने पर उसके द्वारा उक्त ट्रक को पास कराने सम्बन्धी आरोप लगाकर कार्यवाही की गयी जिसमें याची व अन्य दो आरक्षियों के विरुद्ध आपराधिक मामला दर्ज किया परन्तु उक्त आपराधिक मामले में न्यायालय द्वारा साक्षियों के बयानों को गलत मानते हुए उन्हें दोष मुक्त कर दिया गया है | याची के दोष मुक्त होने के बाद यह स्पष्ट हो जाता है कि उसके विरुद्ध की गयी एफ आई आर व पुलिस के कथन सही नहीं है | अतः हमारे विचार से उन्हीं आरोपों एवं साक्ष्यों के आधार पर जिसमे याची को न्यायालय द्वारा आपराधिक मामले में दोष मुक्त किया जा चुका है , उसके विरुद्ध अनुशासनिक कार्यवाही में उसे दण्डित किया जाना किसी भी प्रकार से विधिक नहीं कहा जा सकता |"
In the present case alongwith claimant-respondent no.2, two other co-accused, namely, Gyanandra Bahadur Singh and Sunil Kumar Shukla were also named in the F.I.R. in respect to incident which took place on 2.11.2011 on the basis of which a case was registered against them and a criminal proceedings were initiated in the trial court and vide judgment and order dated 28.3.2017 the Additional Chief Metropolitan Magistrate- III, Kanpur Nagar had acquitted the claimant-respondent no.2 and other co-accused persons from the charges levelled against them.
Further, departmental proceedings were initiated against the said persons alongwith the claimant-respondent no.2 in respect of the same incident and the said two persons were awarded censure entry while in the case of claimant-respondent no.2 the order of dismissal has been passed. In this regard, the Tribunal has given the following findings:-
"याची के विद्वान अधिवक्ता द्वारा यह भी तर्क दिया गया है कि आरक्षी सुनील कुमार शुक्ला व आरक्षी ज्ञानेंद्र बहादुर सिंह को उसी अपराधिक मामले में अभियुक्त होने के बावजूद उन्हें केवल परिनिन्दा प्रविष्टि के दण्ड से दण्डित किया गया। याची द्वारा आरक्षी सुनील कुमार शुक्ला के विरुद्ध पारित परिनिन्दा प्रविष्टि के आदेश की छायाप्रति दाखिल की गयी है। याची के विद्वान् अधिवक्ता द्वारा दिये गये उपरोक्त तर्क पर हमारे द्वारा विचारण किया गया। चूँकि यह स्वीकृत तथ्य है कि एक ही मामले में तीनो आरक्षी संलिप्त थे तथा अन्य दो आरक्षियों को परिनिन्दा प्रविष्टि का दण्ड प्रदान कर छोड़ दिया गया जबकि याची को सेवा से पदच्युत किये जाने का दण्ड प्रदान किया गया है जो हमारे विचार से समानता के सिद्धान्त के विपरीत है।"
The said findings given by the Tribunal is perfectly valid rather in accordance with Article 14 of the Constitution of India as well as the doctrine of equality.
The Doctrine of Equality applies to all who are equally placed; even among persons who are found guilty. The persons who have been found guilty can also claim equality of treatment, if they can establish discrimination while imposing punishment when all of them are involved in the same incident. Parity among co-delinquents has also to be maintained when punishment is being imposed. Punishment should not be disproportionate while comparing the involvement of co-delinquents who are parties to the same transaction or incident. The Disciplinary Authority cannot impose punishment which is disproportionate, i.e., lesser punishment for serious offences and stringent punishment for lesser offences.
In this regard, Hon'ble the Apex court in the case of Director General of Police and others Vs. G. Dasayan (1998) 2 SCC 407, wherein one Dasayan, a Police Constable, along with two other constables and one Head Constable were charged for the same acts of misconduct. The Disciplinary Authority exonerated two other constables, but imposed the punishment of dismissal from service on Dasayan and that of compulsory retirement on Head Constable. This Court, in order to meet the ends of justice, substituted the order of compulsory retirement in place of the order of dismissal from service on Dasayan, applying the principle of parity in punishment among co-delinquents. This Court held that it may, otherwise, violate Article 14 of the Constitution of India.
In Anand Regional Coop. Oil Seedsgrowers' Union Ltd. Vs. Shaileshkumar Harshadbhai Shah, 2006 (6) SCC 548, Ho'nble the Supreme Court held that the workman was dismissed from service for proved misconduct. However, few other workmen, against whom there were identical allegations, were allowed to avail of the benefit of voluntary retirement scheme. In such circumstances, this Court directed that the workman also be treated on the same footing and be given the benefit of voluntary retirement from service from the month on which the others were given the benefit.
Hon'ble the Apex Court in the case of Rajendra Yadav Vs. State of Madhya Pradesh & Others 2013 (3) SCC 73 paragraph nos. 9 to 12 as ruled as under:-
"(9) The Doctrine of Equality applies to all who are equally placed; even among persons who are found guilty. The persons who have been found guilty can also claim equality of treatment, if they can establish discrimination while imposing punishment when all of them are involved in the same incident. Parity among co- delinquents has also to be maintained when punishment is being imposed. Punishment should not be disproportionate while comparing the involvement of co-delinquents who are parties to the same transaction or incident. The Disciplinary Authority cannot impose punishment which is disproportionate, i.e., lesser punishment for serious offences and stringent punishment for lesser offences.
(10) The principle stated above is seen applied in few judgments of this Court. The earliest one is Director General of Police and others Vs. G. Dasayan (1998) 2 SCC 407, wherein one Dasayan, a Police Constable, along with two other constables and one Head Constable were charged for the same acts of misconduct. The Disciplinary Authority exonerated two other constables, but imposed the punishment of dismissal from service on Dasayan and that of compulsory retirement on Head Constable. This Court, in order to meet the ends of justice, substituted the order of compulsory retirement in place of the order of dismissal from service on Dasayan, applying the principle of parity in punishment among co-delinquents. This Court held that it may, otherwise, violate Article 14 of the Constitution of India.
(11) In Shaileshkumar Harshadbhai Shah case (supra), the workman was dismissed from service for proved misconduct. However, few other workmen, against whom there were identical allegations, were allowed to avail of the benefit of voluntary retirement scheme. In such circumstances, this Court directed that the workman also be treated on the same footing and be given the benefit of voluntary retirement from service from the month on which the others were given the benefit.
(12) We are of the view the principle laid down in the above mentioned judgments also would apply to the facts of the present case. We have already indicated that the action of the Disciplinary Authority imposing a comparatively lighter punishment to the co-delinquent Arjun Pathak and at the same time, harsher punishment to the Appellant cannot be permitted in law, since they were all involved in the same incident. Consequently, we are inclined to allow the appeal by setting aside the punishment of dismissal from service imposed on the Appellant and order that he be reinstated in service forthwith. Appellant is, therefore, to be re-instated from the date on which Arjun Pathak was re-instated and be given all consequent benefits as was given to Arjun Pathak. Ordered accordingly. However, there will be no order as to costs."
The issue came up before the Apex Court in another case Lucknow Kshetriya Gramin Bank & Another Vs. Rajendra Singh 2013 (12) SCC 372. Paragraph nos. 9 to 20 of the aforesaid judgement which are relevant for the issue in hand are extracted herein under:-
"(9) Mr. Mehta referred to the judgment of this Court in Obettee (P) Ltd. V. Mohad Shafiq Khan (2005) 8 SCC 46 wherein identical features, as prevailing in this case, were held as distinctive features and different and higher punishment was held to be justified in the following manner:
"8. On consideration of the rival stands one thing becomes clear that Chunnu and Vakil stood on a different footing so far as the Respondent workman is concerned. He had, unlike the other two, continued to justify his action. That was clearly a distinctive feature which the High Court unfortunately failed to properly appreciate. The employer accepted to choose the unqualified apology given and regrets expressed by Chunnu and Vakil. It cannot be said that the employer had discriminated so far as the Respondent workman is concerned because as noted above he had tried to justify his action for which departmental proceedings were initiated. It is not that Chunnu and Vakil were totally exonerated. On the contrary, a letter of warning dated 11.4.1984 was issued to them.
9. IN Union of India Vs. Parma Nanda the Administrative Tribunal had modified the punishment on the ground that two other persons were let off with minor punishment. This Court held that when all the persons did not stand on the same footing, the same yardstick cannot be applied. Similar is the position in the present case. Therefore, the High Court's order is clearly unsustainable and is set aside."
(10) Per contra Mr. Vishwanathan, learned Sr. Counsel and Mr. Rajeev Singh, the learned counsel appearing for the respondent in these appeals argued that the circumstances of the two sets of cases were almost identical and therefore in the facts of this case, the directions of the High Court were perfectly in order. They pointed out that the other three employees had also denied the charges in the first instance, in their replies to the charge sheets served upon them. For some curious reasons the Appellant-Bank did not hold any common enquiry even when the charges leveled in all six charge-sheets were identical. Instead the Bank first picked up only the Respondents herein, and held the enquiry against them. It is only after in the enquiry the charges were established against the Respondents and the punishment of dismissal was imposed on them, that the enquiry against the other three employees was commenced. That at this stage, knowing the fate of their cases, those three employees accepted the charges and tendered unconditional apologies.
(11) The learned Counsel argued that the Bank had given definite advantage to those three employees by deferring their enquiries enabling them to make up their mind after knowing the result in the case of the Respondents. They, thus, argued that it cannot be said that those three employees had accepted the charges at the outset. Their submission was that in such circumstances imposition of different and higher-penalty on the Respondents herein would clearly amount to invidious discrimination, as held by this Court in Rajendra yadav V. State of M.P. In that case two employees were served with charge sheets who were involved in the same incident. A person who had more serious role was inflicted a comparatively lighter punishment than the Appellant in the said case. This was held to be violative of the doctrine of Equality Principles enshrined under Article 14 of the Constitution of India. The discussion which ensued, while taking this view, reads as under:
"8. We have gone through the inquiry report placed before us in respect of the Appellant as well as Constable Arjun Pathak. The inquiry clearly reveals the role of Arjun Pathak. It was Arjun Pathak who had demanded and received the money, though the tacit approval of the Appellant was proved in the inquiry. The charge leveled against Arjun Pathak was more serious than the one charged against the Appellant. Both the Appellants and other two persons as well as Arjun Pathak were involved in the same incident. After having found that Arjun Pathak had a more serious role and, in fact, It was he who had demanded and received the money, he was inflicted comparatively a lighter punishment. At the same time, the Appellant who had played a passive role was inflicted with a more serious punishment of dismissal from service which, in our view, cannot be sustained."
Further a Division Bench of this Court in the case of Sukh Ram Vs. State of U.P. and others, 2018(4) ESC 1772 held in para 20 as under:-
"20. It is made clear that such a comparison is permissible only when the other employee(s) who is given lighter punishment was a co-delinquent. Such a comparison is not permissible by citing the cases of other employees, as precedents, in all together different departmental enquiries."
For the foregoing reasons, we are of the considered opinion that there is no illegality or infirmity in the impugned jdugment passed by Tribunal.
The writ petition lacks merit and is dismissed.
(Saurabh Lavania,J.) (Anil Kumar,J.) Order Date :- 17.10.2019 dk/