Jharkhand High Court
The State Of Jharkhand vs Vrs on 18 September, 2019
Author: Aparesh Kumar Singh
Bench: Aparesh Kumar Singh, Kailash Prasad Deo
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
L.P.A. No. 70 of 2016
1.The State of Jharkhand
2.The Under Secretary, Road Construction Dept., Govt. of Jharkhand
3.The Superintending Engineer, Road Construction Dept.,
Road Circle, Hazaribag
4.The Executive Engineer, Road Construction Dept., Road Circle, Hazaribag
............Appellants
Vrs.
Kameshwar Prasad ......... Respondent
.......
CORAM: HON'BLE MR. JUSTICE APARESH KUMAR SINGH HON'BLE MR. JUSTICE KAILASH PRASAD DEO For the Appellants : M/s Atanu Banerjee, Sr.S.C.III, D.C. Mishra, and Pooja Kumari, A.C. to Sr. S.C. III For the Respondent : Mr. Shresth Gautam 23/18.09.2019 Heard learned counsel for the appellant and the writ petitioner/ Respondent.
2. Appellant is the State, aggrieved by the operative part of the impugned judgment dated 20.11.2015 passed in W.P.(S) No. 7273 of 2011 and another analogous case rendered by the learned Writ Court whereby, while quashing the order dated 03.09.2011 of dismissal from service, the matter has been remitted to the disciplinary authority to take a fresh decision on the quantum of punishment.
3. The checkered history of the litigation is referred to here under for proper appreciation of the issue in this appeal:
Writ Petitioner (respondent herein), an accounts clerk in Public Works Department, Koderma Division, appointed in the year 1981 was proceeded departmentally for certain charges relating to the year 1991- 1993, while he was posted at Koderma. He was also placed under suspension. During pendency of the inquiry, he approached this Court in W.P.(S) No. 926 of 2003, which was disposed of with a direction upon the Respondents to conclude the inquiry in a time bound manner. The inquiry led to his dismissal by order dated 03.12.2003. This was made subject matter of challenge in W.P.(S) No. 1057 of 2004. The learned Writ Court quashed the dismissal order but observed that Respondents are not debarred from undertaking a fresh departmental proceeding. The State went in appeal being L.P.A. No. 806 of 2004. Learned Division Bench refused to interfere in the impugned judgment and directed the petitioner to be taken back in service and at the same time to conclude the inquiry in time bound manner, where after petitioner was reinstated in service. There was an interregnum, so far as the departmental inquiry was concerned. Thereafter petitioner was again suspended on 24.04.2010 and proceeded 2 with regard to the same misconduct for the same period. Petitioner approached this Court in W.P.(S) No. 1398 of 2011seeking stay of the departmental proceeding till the criminal case instituted against him is decided. However, petitioner was dismissed from service on 03.09.2011, which was the subject matter in W.P.(S) No. 7273 of 2011. Petitioner was being prosecuted for the offence punishable under Section 420,409,466,467,468,471 and 120B of the I.P.C in connection with Koderma (Tilaiya) P.S. Case No. 328 of 2001 corresponding to G.R. Case No. 526 of 2001. He stood acquitted vide judgment dated 30.03.2012 rendered by the learned Chief Judicial Magistrate, Koderma as the prosecution had not been able to substantiate the charges on the basis of evidence as the prosecution had adduced only one witness i.e., the Investigating Officer and no other. Few other relevant facts needs to be noticed here under; that petitioner refunded an amount of Rs.88,320/- with 12% interest i.e., the amount deposited in his account relating to retirement benefit of some of the employees. This was part of the chages in the departmental proceeding and was one of the charge in criminal proceeding. Apart from that, a certificate proceeding had been initiated by order dated 29.11.2010 for recovery of an amount of Rs.13,68,794/- from the petitioner, which is still pending.
In these background, it is important to refer to the charges which petitioner faced in the departmental proceeding. The memo dated 24.04.2010 issued by the Superintending Engineer, Road Construction Department, Road Circle, Hazaribag inter alia contained the following charges:
(1) Petitioner during his period of posting as Accounts Clerk at the Road Division, Koderma had committed financial irregularity totaling Rs.12,11,321/- relating to pension / gratuity/ earned leave encashment etc. by misappropriating it from the State exchequer.
(2) Petitioner had not made available the important official records of Road Division, Koderma relating to fraudulent withdrawal which are messenger book of the year 1999-2000 and 2000-
2001; bill register for the year 1999-2000 and allotment register from the year 1999-2000.
(3) The salary acquittance roll pages were not certified nor properly kept.
(4) Relevant pages of salary acquittance roll, which contained the 3 mention of fraudulent withdrawal were torn and missing. (5) Relevant pages containing the fraudulent withdrawal from the bill register were also torn and missing.
(6) The delinquent employee by not maintaining the salary acquittance roll; tearing and causing disappearance of relevant pages of messenger book, bill register and allotment register and not being able to produce it, had caused disappearance of evidence to conceal the fraudulent withdrawal.
All these charges were found to be established as per the inquiry report.
4. Learned counsel for the writ petitioner had tried to point out from the inquiry report dated 11.03.2010 that the inquiry officer had also found complicity of other employees including the then Executive Engineer, Road Division, Koderma (Retd.), the then Accounts Officer, Road Division, Koderma, the then Cashier, Road Division, Koderma and the petitioner, the then Accounts Clerk, Road Division, Koderma in the fraudulent withdrawal. After the second show cause notice, which the petitioner failed to reply, the order of punishment of dismissal from service was passed by the disciplinary authority i.e., the Superintending Engineer, Road Circle, Hazaribag.
5. Learned counsel for the appellant submits that the principles which govern the cases of departmental proceeding on the acquittal of the delinquent are contained in the decision rendered by the Apex Court in the case of The Divisional Controller,KSRTC Vrs. M.G. Vittal Rao reported in (2012) 1 SCC 442; in the case of Inspector General of Police Vrs. S. Samuthiram reported in (2013) 1 SCC 598 and in the case of Sashi Bhushan Prasad Vrs. Inspector General, Central Industrial Security Force and others reported in (2019) 7 SCC 797 / 2019 SCC Online SC
952. The principles are summed as under :
I. Criminal Prosecution is launched for an offence for violation of a duty which the offender owes to the society or for breach of law. It is an act of crime, whereas the departmental inquiry is to maintain discipline in service and efficiency in public service. II. The Apex Court has refrained from laying down any inflexible rules in which the departmental proceedings may nor may not be stayed pending trial in criminal case against the delinquent employee, since each case requires to be considered in the backdrop of its own facts and circumstances.4
III. There is no bar to proceed simultaneously with departmental inquiry and trial of a criminal case unless the charge is of grave nature involving complicated questions of fact and law. Standard of proof in departmental proceedings is not the same as high as in a criminal prosecution. The nature of evidence in a criminal trial is entirely different from departmental proceeding. In a criminal case prosecution has to prove the charges beyond all reasonable doubt. On the other hand in the departmental inquiry penalty can be imposed upon the delinquent officer on the findings based on preponderance of probability.
IV. The acquittal in a criminal case does not entail automatic reinstatement since different standards of proof are applicable in criminal and departmental proceedings. It would also depend upon whether it is technical acquittal or honourable acquittal. V. Reinstatement, therefore, cannot be claimed unless there is specific provision to this effect in relevant service rules in cases of honourable acquittal. [See the case of S. Samuthiram (supra)]. In other words, the issue whether an employee has to be reinstated in service or not depends upon the question whether the service rules contain any such provision for reinstatement and not as a matter of right.
6. Learned counsel for the appellant State submits that the charges of serious nature involving official discharge of duty by the delinquent employee stood established in the inquiry proceeding and have not been disturbed by the learned Single Judge. Learned Writ Court while quashing the order of dismissal remitted the matter to the disciplinary authority to decide the quantum of punishment afresh without rendering a finding to the effect that punishment was shockingly disproportionate to the established misconduct. The nature of charges in the departmental proceedings were not same and similar to that of criminal case. The writ petitioner was being prosecuted for charges of criminal misappropriation and forgery whereas charges in the departmental proceeding relate to not only not maintenance of the official records in his custody such as the bill register, allotment register, salary acquittance roll but also causing tearing and disappearance of the relevant pages relating to fraudulent withdrawal. The appellant consciously accepted and refunded the amount of Rs.88,320/- with 12% interest earlier deposited in his account to the State exchequer, thereby admitting his guilt. There is a certificate proceeding 5 going on against the petitioner for recovery of an amount of Rs.13,68,794/- , which relate to the same transaction. The court of learned Chief Judicial Magistrate, Koderma acquitted the writ petitioner as apart from the Investigating Officer, prosecution failed to examine any witness in its support. The acquittal was in the absence of sufficient evidence to establish the charge. It is therefore not an honourable acquittal rather on the basis of insufficient evidence. In such cases when the findings of the disciplinary inquiry have not been found fault with by the learned Single Judge and serious charges in the departmental proceeding stands established, the punishment of dismissal from service cannot be said to be shockingly disproportionate to the established misconduct. It is not a case where there is any denial of principles of natural justice and sufficient opportunity in the departmental proceeding. As such, the impugned direction rendered by the learned Single Judge is fit to be set aside.
7. On behalf of the writ petitioner / respondent an effort has been made to draw the attention of this Court to the merits of the findings in the departmental inquiry. Apart from that, an argument has also been raised that the inquiry officer had found complicity of three other employees along with this petitioner. Learned counsel for the writ petitioner has referred to certain documents as part of his show cause in the first departmental inquiry which are orders of the Executive Engineer, Road Division, Koderma authorizing the writ petitioner / accounts clerk to withdraw the amount and keep it in his account on account of holiday and when the Accountant returns, the same be refunded. The relevant annexure-7 to the supplementary affidavit of the appellant is a letter of the Executive Engineer dated 15.02.2001 which appears to be of subsequent date of the alleged transaction. However, learned counsel for the writ petitioner has not been able to show the nature of inquiry proceeding conducted against other employees or criminal charges against them. On the part of the writ petitioner, it is urged that the employee had faced a long drawn departmental proceeding and criminal prosecution for a charge relating to defalcation and other ancillary charges for the period 1991-1993 while he was posted as Accounts Clerk at Koderma, Road Division ended in his acquittal. At the first instance, the order of dismissal was quashed by this Court and petitioner was reinstated in service. He served the government for considerable time where after he has been proceeded in the year 2010 for fresh charges, though relating to the same transaction and period. A feeble argument has also been made that 6 adequate opportunity was denied in the departmental proceeding. Learned counsel for the writ petitioner has not disputed that the delinquent employee refunded Rs.88,320/- with 12% interest, which was earlier deposited in his account and was part of the misappropriated amount. He also does not dispute that the writ petitioner is facing a certificate proceeding for recovery of Rs.13,68,794/-. Learned counsel for the writ petitioner while summarizing his argument has fervently pleaded that dismissal of service is definitely shocking to the alleged misconduct when the writ petitioner has been acquitted of the criminal charges, which are of similar nature. Therefore, the order of remitting the matter on the quantum of punishment need not be interfered in appeal.
8. We have given sufficient hearing to the learned counsel for the parties in order to appreciate the issue in controversy. On a conspectus of facts and circumstances noted above, we find that the learned Writ Court had not interfered in the findings of the departmental inquiry. Learned Writ Court after noticing the case of the parties in the light of the ratio rendered by the Apex Court in the case of S. Samuthiram (supra) and Capt. M. Paul Anthony (supra) and that the writ petitioner had been acquitted by the court of learned Chief Judicial Magistrate, Koderma, been persuaded to interfere in the quantum of punishment i.e., dismissal from service imposed upon the writ petitioner. However, there is no finding to the effect as to how the punishment was shockingly disproportionate to the established misconduct.
In a departmental proceeding, the punishment, which is required to be imposed lies within the domain of the employer. Applying the principles of proportionality, the Writ Court in exercise of powers under Article 226 of the Constitution of India, can interfere if the punishment so imposed is found to be shockingly disproportionate to the established misconduct.
9. On consideration of the materials on record, which we have taken note of in sufficient detail, it can be safely inferred that the acquittal of the writ petitioner of the criminal charge under section 420, 409, 466, 467, 468, 471 and 120B of the I.P.C was on the basis of absence of sufficient evidence adduced by the prosecution since apart from the Investigating Officer, no other prosecution witnesses were examined. The charges in the departmental proceeding, as noted above, were not only related to the criminal charges but at least 5 of the charges related to disappearance of official records relating to bill register, allotment register, salary 7 acquittance roll relating to the period of fraudulent withdrawal by the delinquent employee and were serious in nature relating to official discharge of the duty. The writ petitioner in a way admitted the charges relating to deposit of amount relating to pension, gratuity, leave encashment etc. of the other employees in his account by refunding the same along with interest @ 12%. He is also facing recovery proceeding for an amount of Rs.13,68,794/-, which relate to the same transaction. The principles as regards reinstatement have evolved from the judgment rendered by the Apex Court from time to time. Reliance is placed upon a judgment of the Apex Court in the case of Sashi Bhushan Prasad (supra), para 17 and 18 of which are quoted here under:
17. 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 V. Mohd. Yousuf Miya. 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 8 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 Section 304-A and 338, IPC. Under these circumstances, the High Court was not right in staying the proceedings".
(Emphasis supplied)
18. The exposition has been further affirmed by a three Judge Bench of this Court in Ajit Kumar Nag v. General Manager (PJ), Indian Oil Corporation Limited, Haldia, 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 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."
(Emphasis supplied)
10. Evidently, the standard of proof in criminal trial and departmental proceeding being different and technical acquittal in the absence of sufficient evidence would not ipso facto entail reinstatement in favour of the petitioner, if on proper inquiry, the charges in the departmental proceedings, which are not confined to the charges in the criminal case and include other serious misconduct relating to official discharge of duty have been duly established. Though point has been raised at this stage by the learned counsel for the writ petitioner about complicity of other employees in the alleged transaction, but he could not bring home the same in the absence of sufficient pleadings.
911. In the light of facts and circumstances and the discussion made herein above, it cannot be said that the punishment of dismissal from service of the employee was disproportionate to the extent that it would shock the conscience of the court. There is no finding of the learned Writ Court either to that effect. As such the impugned judgment, so far as it relates to the quashing of the order of dismissal and remand for fresh consideration on the quantum of penalty cannot be sustained in the eyes of law and on facts. It is accordingly set aside.
12. The appeal is allowed in the manner and to the extent indicated herein above. All the pending I.A.s are accordingly closed.
(Aparesh Kumar Singh, J.) (Kailash Prasad Deo, J.) A.Mohanty