Orissa High Court
Jayaram Panda vs D.V. Raiyani And Ors. on 4 May, 1988
Equivalent citations: AIR1989ORI109, (1990)IILLJ186ORI, AIR 1989 ORISSA 109, 1988 LAB. I. C. 1441, (1989) 1 LABLN 974, (1989) 74 FJR 375, (1988) 66 CUTLT 155, (1988) 20 REPORTS 389, (1990) 2 LABLJ 186, (1988) 2 ORISSA LR 3
Author: G.B. Patnaik
Bench: G.B. Patnaik
JUDGMENT G.B. Patnaik, J.
1. This case has been referred to the Full Bench as a Bench of this Court doubted the correctness of the Bench decision of this court in the case of Agadhu Charan Giri v. Commercial Manager, Indian Airlines, Calcutta (1985) 2 Orissa LR 513, on the question whether an order of acquittal passed in a criminal case debars a departmental inquiry on the self-same charges or not. The doubt arose because of some observations made by the Supreme Court in the case of Corpn. of the City of Nagpur, Civil Lines Nagpur v. Ramachandra G. Modak, AIR 1984 SC 626: (1984 Lab IC 179):
2. The brief facts are that the petitioner was appointed as a Clerk in the Bank of India on 27-12-1971 and was posted as Clerk-cum-Cashier at Berhampur between the period 24-12-1975 and 4-1-1979. During the said period, he was tried in two criminal cases namely SPE 8 of 1978 and SPE 10 of 1978 on the allegations that he committed certain forgery and manipulated certain documents which facilitated one Shri N. P. Singh Samanta to withdraw certain amount from the Bank. The petitioner in both these cases was convicted by the learned Trial Judge and was sentenced to undergo rigorous imprisonment for two years and to pay a fine Rs. 10,000/-. But the said conviction and sentence were set aside in appeal in Criminal Appeals Nos. 31 and 32 of 1980, disposed of on 2-9-1980. The prosecution moved this court against the said order of acquittal for grant of leave to prefer appeal, but the same having been rejected by this Court on 9-1-1981, the prosecution approached the Supreme Court in Special Leave Petitions. Ultimately, the Supreme Court also dismissed the Special Leave petitions on 15-10-1981. The petitioner was placed under suspension on 3-11-1979, but in view of the order of acquittal in the criminal cases passed by the learned Additional Sessions Judge, the order of suspension was lifted and he was permitted to continue in service by order dated 27-4-1981. The petitioner was promoted to the post of Special Assistant on 26-8-1981.
On 8-5-1982, the Regional Manager of the Bank served notice on the petitioner 10 snow cause as to why disciplinary action should not be taken against the petitioner for the acts of gross misconduct committed by the petitioner while he was working as a Cashier at Berhampur Branch. The said notice that was served on the petitioner has been annexed as Annex. 5 to the writ petition. The petitioner did file his show cause which has been annexed as Annex. 6 to the writ petition and contended therein that the charges in question having been inquired into by the criminal court and the petitioner having been acquitted of the said charges, and the matter having been carried right up to the Supreme Court and the prosecution having failed, the departmental proceeding should be dropped. On consideration of the aforesaid show cause of the petitioner, but not being satisfied with the same the said Regional Manager who was appointed as the disciplinary authority served a set of charges on the petitioner which have been annexed as Annex. 12 to the writ petition and nominated one Shri K. Srinivasa Raghavan as the Inquiry Officer to hold the departmental inquiry into the charges levelled against the petitioner. The said letter of the disciplinary authority which was served on the petitioner has been annexed as Annex. 13 to the writ petition. The petitioner thereafter approached this court for, quashing of the charges under annex. 12 as well as the proceedings.
3. It has been contended in the writ petition that in view of the order of acquittal of the petitioner in the criminal cases, initiation of a departmental proceeding on the self-same charges and on the self-same facts is improper. It has further been urged that Para 505 of the Sastry Award which is binding on the parties prohibits launching of a departmental proceeding in the facts and circumstances of the present case, and, therefore, the initiation of a proceeding under Annexures-12 and 13 is void.
In the return filed by the oppsoite parties it has been stated that the Appellate Judge has set aside the conviction of the petitioner on a technical view of the matter and the order of acquittal is not on merits. It has further been stated in the said counter-affidavit that the initiation of disciplinary action by way of departmental proceeding is not prohibited because of an order of acquittal passed by the criminal court. On the question of applicability of Sastry Award, it has been stated that the said Award is inapplicable and does not govern the parties in view of the subsequent bipartite settlement between the Banking Companies represented by the Indian Bank's Association and their Workmen.
A rejoinder to the counter-affidavit has been filed by the petitioner and the Opposite Parties have also filed a reply to the same.
4. At the hearing of this writ petition. Mr. Prithviraj, the learned counsel for the petitioner, very strenuously urges that the charges served on the petitioner for the purpose of a departmental inquiry as per Annex. 12 being the same which were the subject-matter of the two criminal cases and the Criminal Courts having acquitted the petitioner in appeal, the initiation and continunace of a departmental proceeding must be held to be without jurisdiction. The learned counsel has also contended that in view of the provisions contained in Para 505 read with para 521(2)(d) of the Sastry Award, the management having reinstated the petitioner after the order of acquittal passed by the appellate court loses jurisdiction to proceed against the petitioner under the provisions set out in sub-paras (9) and (10) of the para 521 of the said Award relating to 'discharge' and consequently, the initiation and continuance of the departmental proceeding is bad in law.
Mr. B. S. Misra, the learned counsel for the Opposite Parties, on the other hand, contends that the charges levelled against the petitioner in the departmental inquiry had not formed a subject-matter of the charge in the criminal cases and, therefore, initiation and continuance of the departmental proceeding cannot be held to be improper. Alternatively, he contends that even assuming the charges to be the same, an acquittal in a criminal case does not debar the disciplinary authority to initiate and continue a departmental proceeding and to take suitable action therein since the standard of proof required to hold a person guilty in a criminal case is "proof beyond reasonable doubt" whereas charges can be established in a departmental proceeeding even on preponderance of probabilities. According to Mr. Misra, the learned counsel, so far as the present case is concerned, the order of ac quittal being passed on a technical ground, the departmental authorities were fully within their jurisdiction to initiate a departmental proceeding against the petitioner. So far as the contention regarding the provisions of Sastry Award is concerned, the learned counsel for the Opposite Parties urged that the said provisions have no application in view of the bipartite settlement and Clause 19 of the said bipartite settlement fully authorises a disciplinary action against an employee of the Bank even after his acquittal in a criminal case. The rival contentions require careful examination particularly when the case had been referred to a Full Bench doubting the correctness of the decision of this Court in Agadhu Charan Gin's case (1985) 2 Orissa LR 513.
5. In the case of State of Andhra Pradesh v. S.Sree Rama Rao, AIR 1963 SC 1723, where the Inquiry Officer had found the employee guilty and had observed that the Judgment of the Magistrate acquitting the employee in the criminal trial could not be regarded as binding on the departmental inquiry and the High Court had interfered with the ultimate conclusion of the disciplinary authority on the ground that the Inquiry Officer committed an error, the Supreme Court observed : --
"....The Enquiry Officer appears to have stated that the judgment of the Magistrate holding a criminal trial against a public servant could not always be regarded as binding in a departmental enquiry against that public servant. In so stating the Enquiry Officer did not commit any error. The first ground on which the High Court interfered with the order of the punishing authorities is therefore wholly unsustainable."
In the case of S. Partap Singh v. State of Punjab, AIR 1964 SC 72, in the context of challenge to the initiation of a departmental proceeding for the charges which would constitute a criminal offence to be violative of Article 14 of the Constitution, negativing the contention of the petitioner, the Supreme Court observed : --
".....The service rules apply equally to all the members of the service i.e., to all persons similarly placed and are not, therefore, discriminatory. The Government has the discretion in every case, considering the nature of the alleged misconduct and other circumstances, whether a criminal prosecution should be launched or not. The Government is also free to conduct departmental proceedings after the close of the criminal proceedings, if instituted......."
Though the aforesaid observations have been made while deciding the contention as to whether initiation of a departmental proceeding can be held to be discriminatory or not, yet the same indicate the power of the Government to conduct a departmental proceeding even after the close of criminal proceeding.
In Agadhu Charan Girl's case (1985) 2 Orissa LR 513, the learned counsel for the petitioner did not dispute the proposition that an acquittal in the criminal court does not bar a disciplinary proceeding on the selfsame charges and this court observed : --
"Law is settled by a series of decisions and there is consensus of judicial opinion that on the self-same allegations a disciplinary proceeding and a criminal case against the same person can continue. The disciplinary authority is competent to draw its own conclusion on the basis of the evidence adduced before it, in support of the charges. The criminal court on the other hand will record its own findings in respect of the charges on the basis of the evidence adduced before it in support thereof. It cannot be stated as a proposition of law that an employee against whom a disciplinary proceeding has been initiated cannot be proceeded with in the criminal court. Even an acquittal in the criminal court does not bar a disciplinary proceeding on the self-same charges....."
This decision was also challenged in the Supreme Court since after holding that it would be competent to initiate and continue a disciplinary proceeding on the self-same charges, this Court had interfered with the order of termination on the ground that the punishment imposed was severe and disproportionate to the nature of the charge, in Civil Appeal No. 1951 of 1986, disposed of on 8-5-1986. Before the Supreme Court, it was conceded that the order of acquittal in favour of the respondent by the criminal Court in the cases instituted on the complaints filed by his superiors whom he had assaulted would not stand in the way of a departmental inquiry. Thus, the view of this Court in Agad-hu Charan Giri's case that an order of acquittal in a criminal case will not be a bar for initiation and continuation of a departmental inquiry on the self-same charges was re-affirmed by the Supreme Court.
6. The questions whether a departmental proceedings can be initiated on the identical charges which was a subject-matter of a criminal case wherein an order of acquittal has been passed and whether the inquiry officer is bound by the finding of the criminal court or not and can record a different finding on the basis of materials produced before him, came up for consideration before the Madras High Court recently in the case of M. M. Rubber Co. Ltd., Madras v. Natarajan (1986) 1 Serv LJ 256 : (1986 Lab IC 1281). After elaborate discussion and noticing a plethora of decisions, the learned Judges of the Madras High Court agreed with the views expressed by the Division Bench of Gujarat High Court in Motising v. S. D. Mehta, (1966) 1 Lab LJ 55 : (AIR 1966 Guj 233); Division Bench of the Bombay High Court in Bhaurao v. State of Maharashtra, (1973) 1 Lab LC 153 : (1972 Lab 1C 1453) and Full Bench of the Mysore High Court in T. V. Gowda v. State of Mysore, (1975) 2 Lab IC 513 and came to the conclusion that an order of acquittal passed against a Government servant by a Criminal Court would not bar disciplinary proceeding against him on the self-same charges and the disciplinary authority did not violate any rule of law in the departmental proceeding when he chose to ignore the finding of the criminal court and decided to act on the evidence led before him. In fact, the observations of the Supreme Court in Corpn. of the City of Nagpur case AIR 1984 SC 626 : (1984 Lab IC 179) on the basis of which the correctness of the earlier Bench decision of this Court in Agadhu Charan Giri's case (1985) 2 Orissa LR 513 was doubted and the case had been referred to Full Bench, have been considered by the learned Judges of the Madras High Court and it has been observed by their Lordships that the controversy is settled since those observations clearly indicate that merely because the accused is acquitted, the power of the authority concerned to continue a departmental inquiry is not taken away nor is the discretion in any way fettered. It would be appropriate at this stage to take note of the decision of the Supreme Court reported in AIR 1984 SC 626 : (1984 Lab IC 179). In that case, the question that arose for consideration was whether the Municipal Commissioner being the competent authority to suspend the employee pending departmental inquiry under Section 59(3) of the City of Nagpur Corporation Act (2 of 1950), the High Court was justified in quashing the order of suspension on the ground that only the Corporation can pass the oder and not the Chief Executive Officer. Having reversed the decision of the Bombay High Court in Spl. Civil Appln. No. 1501 of 1977, the Supreme Court then considered the question whether the departmental proceeding which was pending inquiry should continue or not. Their Lordships noted the fact that the criminal cases instituted against the employees were still pending and, therefore, they directed the Magistrate to conclude the criminal proceedings and thereafter, their Lordships discussed as to what would be the fate of the pending departmental proceeding. In that context, it was observed : --
"The other question that remains is if the respondents are acquitted in the criminal case whether or not the departmental inquiry pending against the respondents would have to continue. This is a matter which is to be decided by the department after considering the nature of the findings given by the criminal court. Normally where the accused is acquitted honourably and completely exonerated of the charges it would not be expedient to continue a departmental inquiry on the very same charges or grounds or evidence, but the fact remains, however, that merely because the accused is acquitted, the power of the authority concerned to continue the departmental inquiry is not taken away nor is its discretion in any way fettered....."
It is the first part of the aforesaid o bservations which weighed with this Court to doubt the correctness of the Bench decision of this Court in Agadhu Charan Giri's case (1985-2 Orissa CR 513). But in view of the observations made in the last part to the effect, "....merely because the accused is acquitted, the power of the authority concerned to continue the departmental inquiry is not taken away nor is its discretion in any way fettered", the decision of this Court in Agadhu Charan Giri's case must be held to be correct. In fact, the observations of the Supreme Court in Corpn. of the City of Nagpur case AIR 1984 SC 626 : (1984 Lab IC 179) (referred to supra) were considered by a Bench of the Allahabad High Court in the case of P. H.Tripathi v. Central Bank of India, 1985 Lab IC 991, and it was observed ; --
"The Supreme Court has emphasised that the mere fact that a person has been acquitted honourably and completely exonerated of the charge will not divest the jurisdiction of the authority concerned to either initiate or continue a departmental enquiry on the very same charges or grounds or evidence. According to the Supreme Court, the power of the officer concerned to direct a departmental enquiry remains unaltered. The discretion of such an officer of authority remains unhampered. The only thing, according to the Supreme Court, which has to be seen is whether in a given case it would be expedient and fair to continue with the departmental proceedings on charges which are identical to those which were levelled against a delinquent in a criminal case before a regular court and that court had given him a clean acquittal. In view of the dictum of the Supreme Court, in our opinion, the proposition laid down in the aforementioned two cases, that the departmental proceedings on identical charges cannot be allowed to take place cannot be accepted in its absolute form."
In view of the position of law as discussed above, and particularly when the view of this Court in Agadhu Charan Giri's case has been re-affirmed by the Supreme Court in Civil Appeal No. 1951 of 1986, it must be held that this Court has taken the correct view in Agadhu Charan Giri's case while deciding that an order of acquittal passed in a criminal case does not debar the disciplinary authority to initiate a disciplinary proceeding on the self-same charges and the same is re-affirmed. The only guiding factor for a departmental authority would be to find out whether it would be expedient to continue a departmental inquiry in the facts and circumstances of a particular case where the accused stood his trial on the very same charges and the charges were completely exonerated and he was acquitted honourably. This could be a germane consideration for the departmental authority to take into account and decide whether the departmental inquiry would be continued or not, but the power of the authority to continue the same is not taken away nor the discretion has been fettered in any manner.
7. Having thus re-affirmed the earlier Bench decision of this Court in Agadhu Charan Giri's case (1985)2OrissaLR513and applying my mind to the facts and circumstances of the present case, particularly to the charges levelled against the petitioner in the two criminal cases as per Annexures 1 and 2; the order of acquittal passed by the learned Additional Sessions Judge as per Annex. 3 and the set of the charges served on the petitioner as per Annex. 12.1 amnotina position to hold that the initiation and continuation of the departmental proceeding is without jurisdiction as urged by the learned counsel for the petitioner and the said contention is accordingly rejected.
8. So far as the question of applicability of the provisions of Sastry Award and the contention of the learned counsel for the petitioner that in view of para 505 read with para 52l (2)(d) to the effect that initiation of a departmental proceeding after directing reinstatement is without jurisdiction are concerned, it is to be noted that the petitioner in his show-cause filed after receiving the notice under Annex. 5 had not taken up this point. That apart, the stand of the opposite parties in the counter-affidavit is that the Sastry Award has been superseded by a bipartite settlement between the Banking Companies and their Workmen and the said settlement in para 19 contained Chapter XIX deals with disciplinary action and procedure therefor. Paragraph 19.3(c) authorises the management to proceed against the employee under clauses 19.11 and 19.12 relating to discharge even after the acquittal of the employee in a criminal case. But para 19.3 (d) is a provision similar to the provision contained in para 521(2)(d) of the Sastry Award. But the said provision cannot have any application since in the present case, the petitioner's services have not been terminated pursuant to the order of conviction passed by the Trial Judge and the petitioner never applied to the management for reconsideration of the decision after he is acquitted by the appellate court. Be that as it may, this is a matter which can be appropriately dealt with by the concerned authority if such a point is urged before the said authority. It would not be appropriate for this court at this stage to express any opinion on the same, particularly when the petitioner never raised this point after receiving the notice to show cause why the disciplinary action should not be initiated against him.
9. In the circumstances, the writ application is devoid of merits and is accordingly dismissed, but without any order as to costs. The interim order of this court dated 274-1983 staying the departmental proceeding stands vacated. Since the departmental proceeding was initiated as early as on 11-3-1983 and the charges pertain to a period from December, 1975 to January, 1979, we would call upon the opposite party No. 3 to conclude the inquiry as expeditiously as possible and the disciplinary authority should also take a final decision soon thereafter.
H.L. Agrawal, C.J.
10. I have had the advantage of perusing the judgment prepared by learned brother Patnaik. While agreeing with him, I would like to add briefly a few observations of my own.
11. The order of acquittal recorded in a criminal proceeding bars a second prosecution on the same facts in view of the principles laid down in Section 403, Criminal P.C. and Article 20 of the Constitution. The decision to hold a departmental enquiry against a delinquent Government servant which is required "in the interest of public administration" is entirely a different proceeding. The object of holding a departmental enquiry is entirely different, i.e., whether the delinquent is guilty of any misconduct or delinquency and the mere fact that the enquiring officer may reach a conclusion different from that recorded by the criminal court does not abridge his right. There is no constitutional, statutory or legal bar on the basis of which it can be held that a departmental enquiry is bad in view of the order of acquittal recorded by a criminal court. Once the cardinal difference between a criminal proceeding and a disciplinary proceeding is kept in mind, there would be no scope for any confusion on this account. The dominant purpose of a criminal proceeding is "to achieve the protection of the public" while that in the disciplinary proceeding is "purity and efficiency of public service". Obviously, therefore, the fields of operation of the two proceedings are quite different and independent. In a disciplinary proceeding, the strict rules of evidence and the standard of proof are also not required as in a criminal trial.
With respect to the impact of a judicial acquittal in a departmental proceeding, counsel for the petitioner emphatically relied upon the following observation of the Supreme Court in the case of Corpn. of the City of Nagpur v. Ramchandra G. Modak, AIR 1984 SC 626 : (1984 Lab 1C 179) :-
"Normally, where the accused is acquitted honourably and completely exonerated of the charges, it is not expedient to. continue the departmental enquiry on the very same charges, or ground or evidence."
He submitted that the petitioner in this case had been honourably acquitted.
As to what is an "honourable acquittal". I may refer to some discussion made in the case of Mandal Dutt v. Rajasthan State Road Transport Corporation (1980) 3 Serv LR 371 : (1980 Lab IC NOC 132) where the Rajasthan High Court was faced with consideration of such a question. A general observation, however, has been made in the famous case of R.P. Kanpur v. Union of India, AIR 1964 SC 787:-
"Even in case of acquittal, proceedings may follow where the acquittal is other than honourable."
In the case of Robert Stuart Wauchope v. Emperor ILR (1934) 61 Cal 168 : (AIR 1933 Cal 800) Lord Williams, J. observed "as follows : --
"The expression 'honourably acquitted' is unknown to courts of justice. Apparently, it is a form of order used in court martial and other extra-judicial tribunals. We said in our judgment that we accepted the explanation given by the appellant believed it to be true and considered that it ought to have been accepted by the Government Authorities and by the Magistrate.. ..Further, we decided that the appellant had not misappropriated the monies referred to in the charge. It is thus clear that the effect of our judgment was that the appellant was acquitted as fully and completely as it was possible for him to be acquitted. Presumably, this is equivalent to what Government authorities term honourably acquitted."
On a survey of the judicial opinion, however, it is not possible to accept the submission of the petitioner's counsel as an absolute proposition inasmuch as the Supreme Court in the case of Corpn. of the City of Nagpur (1984 Lab IC 179) itself after making the observation just extracted above has immediately proceeded to observe that : --
"Merely because the accused is acquitted, the power of the authority concerned to continue the departmental enquiry is not taken away, nor its discretion in any way lettered."
In that view of the matter, the discretion is of with authority himself, and, if he. on the facts and circumstances of the case, feels that notwithstanding the acquittal of the delinquent, a departmental enquiry is expedient, ordinarily that should not be open to scrutiny by a court.
12. I, however, find that way back in 1963 in the case of State of Orissa v. Sailabehari Chatterjee, AIR 1963 Orissa 73 a Bench of this Court not noticed in the later case of Agadhu Charan Girt (1985) 2 Orissa LR 513 has taken the following view : --
"Where a Criminal Court had acquitted a public servant honourably, a subsequent enquiry in respect of the same allegations may offend the rules of natural justice and may have to be quashed.
But where the criminal court did not acquit him honourably but gave him benefit of doubt stating that though there was a strong suspicion against him, the prosecution evidence did not completely exclude the other possibility, further departmental enquiry in respect of the same subject matter if not excluded especially as the standard of proof required in such an enquiry against a delinquent public servant is not the same as that required against an accused in a criminal case."
For the view we are taking in this case, I would like to observe that the observations in that case must not be held now to be of a binding and conclusive nature.
The question of "issue estoppel" would also have no application to such cases as already conclusively decided by the Supreme Court in the case of Masud Khan v. State of UP., AIR 1974 SC 28. The principle, if I may say so with respect, has been succinctly laid down in these words : --
'The principle of issue estoppel is simply this : that where an issue of fact has been tried by a competent court on a former occasion and a finding has been reached in favour of an accused, such a finding would constitute an estoppel or res judicata against the prosecution not as a bar to the trial and conviction of the accused for a different or distinct offence but as precluding the reception of evidence to disturb that finding of fact when the accused is tried subsequently even for a different offence which might be permitted by law.
XXX XXX XXX It should be kept clearly in mind that the proceeding referred to herein is a criminal prosecution. The plea of issue estoppel is not the same as the plea of double jeopardy or autre fois acquit."
To put the matter in a more simple way, the principle applies to a criminal proceeding only.
Judged in the light of the above discussions, I do not find anything wrong with the order impugned by the petitioner regarding the departmental proceeding.
13. The writ application, therefore, has got no merit and must fail.
K.P. Mohapatra, J.
I agree, but would like to add a few words. In (1985) 2 Orissa LR 513, Agadhu Charan Giri v. The Commercial Manager, Indian Airlines, Calcutta, it was unnecessary to make reference to the earlier decision of this Court reported in AIR 1963 Orissa 73, S tate of Orissa v. Sailabehari Chatterji, because the principle laid therein was contrary to the settled principle of law on the subject. As rightly pointed out by my Lord, the Chief Justice, the decision is not of a binding and conclusive nature. It can at best be said that the case was decided on the facts of its own.