Punjab-Haryana High Court
Mohinder Singh vs United India Insurance Co Ltd & Anr on 25 November, 2014
Author: Deepak Sibal
Bench: Satish Kumar Mittal, Deepak Sibal
LPA No.1792 of 2014 -1-
IN THE PUNJAB AND HARYANA HIGH COURT
AT CHANDIGARH
LPA No.1792 of 2014
Date of decision:25.11.2014
Mohinder Singh ...Appellant
Versus
United India Insurance Co. Ltd. and another ... Respondents
CORAM : HON'BLE MR. JUSTICE SATISH KUMAR MITTAL
HON'BLE MR. JUSTICE DEEPAK SIBAL
Present: Mr. Pawan Kumar, Sr. Advocate with
Mr. Rozer Kumar Aggarwal, Advocate
for the appellant.
1. To be referred to the reporters or not?
2. Whether the judgment should be reported in the digest.
DEEPAK SIBAL, J.
The present intra-court appeal filed under Clause X of the Letters Patent challenges order dated 15.7.2014 passed by a learned Single Judge of this Court dismissing the writ petition (CWP No.22958 of 2011) filed by the appellant.
The facts in brief leading to the filing of the present appeal are that the appellant was working as a Development Officer at Branch Office of the United India Insurance Company Limited (hereinafter referred to as "Insurance Company") at Phagwara. He was proceeded against both departmentally and criminally for having accepted bribe from one Sawinder Singh. In the departmental proceedings held against the appellant, after following due procedure and the principles of natural justice, vide order dated 9.6.2006, he was dismissed from service. Meanwhile, the criminal trial continued and vide judgment dated 1.12.2008, the appellant was acquitted by the criminal court. This led to moving of representations by the appellant to the concerned authorities seeking setting aside of his dismissal RAJEEV THAKRAL 2014.11.29 15:57 I attest to the accuracy and authenticity of this document High Court Chandigarh LPA No.1792 of 2014 -2- order and consequent reinstatement. When these representations went unanswered, he approached this Court through CWP No.19112 of 2009 which was dismissed as withdrawn to enable the appellant to avail his alternative remedy of appeal. As per liberty granted by this Court, the appellant filed an appeal which was dismissed vide order dated 18.4.2011. It is against the above dismissal order dated 9.6.2006 and appellate order dated 18.4.2011 that the appellant again approached this Court through a writ petition. This writ petition filed by the appellant was considered and dismissed by the learned Single Judge by holding as under:
"In the present case, petitioner was working as a Development Officer. Petitioner was charge sheeted on the allegations that he had demanded and accepted illegal gratification to the tune of ` 2,000/- from Sawinder Singh on 2.2.2001. Charge sheet issued to the petitioner in this regard is Annexure P-1. Petitioner submitted his reply to the charge sheet. Thereafter, enquiry officer was appointed. Enquiry officer vide its report dated 27.9.2005 (Annexure P-2) held that the charges levelled against the petitioner stood proved. Thereafter, notice Annexure P-3 was issued to the petitioner along with copy of the enquiry report. A perusal of the enquiry report reveals that petitioner was given full opportunity during the enquiry proceedings. Petitioner was caught red handed while accepting bribe in a raid organized by the Vigilance Department. The punishing authority after going through the enquiry report as well as the reply submitted by the petitioner, passed the impugned order imposing penalty of dismissal from service on the petitioner.
The scope of judicial review regarding interference with punishment order is very limited. The jurisdiction of this Court is only to see the method/manner of awarding punishment. The Court is only concerned with the procedure adopted by the Punishing Authority. If the procedure adopted by the Punishing Authority is according to rules and natural justice, then no interference with the punishment order is called for. This Court cannot go into the merits of the case. In case, the finding of the Inquiry Officer is based on RAJEEV THAKRAL some evidence, then this court cannot re-appreicate the evidence or 2014.11.29 15:57 I attest to the accuracy and authenticity of this document High Court Chandigarh LPA No.1792 of 2014 -3- weigh the same like the Appellate Authority. So long as there is some evidence in support of the conclusion arrived at by the departmental authority, the same has to be sustained. Some defect in the inquiry has to be pointed out before this Court can interfere with the punishment order. Further more, if defect is pointed out then the delinquent employee has to show as to what prejudice has been caused to him on account of the said defect.
It is not a case where the petitioner had been dismissed from service merely on account of his involvement in the criminal case. In that case, acquittal of the petitioner in the criminal trial would have gained significance. However, in the present case, petitioner was departmentally proceeded and was dismissed from service vide impugned order dated 9.6.2006 (Annexure P-5). Thereafter, in the criminal trial, petitioner was acquitted by the Court vide order dated 1.12.2008 (Annexure P-6). The acquittal of the petitioner in the criminal trial will have no bearing on the departmental proceedings as in the departmental proceedings, the charges levelled against the petitioner stood duly proved. Thereafter, the representation moved by the petitioner for reinstatement on account of his acquittal in the criminal case, was dismissed vide order dated 19.2.2009 (Annexure P-9). Vide Annexure P-10, petitioner was communicated the order Annexure P-9. Thereafter, petitioner filed CWP No. 19211 of 2009 challenging orders Annexure P-5, Annexure P-9 and Annexure P-10. The said writ petition was dismissed as withdrawn on 11.12.2009. A perusal of the said order reveals that petitioner had not withdrawn the writ petition with liberty to file an appeal. Although, the writ petition, filed by the petitioner, was got dismissed as withdrawn on 11.12.2009, but he filed the appeal on 24.12.2010 (Annexure P-12). Appeal filed by the petitioner was dismissed on merits as well as on the ground of delay. Petitioner could have filed an appeal against the dismissal order within a period of three months. However, he filed the appeal on 24.12.2010. Appeal filed by the petitioner was, thus, liable to be dismissed being time barred. Even on merits, the appeal filed by the petitioner was liable to be dismissed as the fact that petitioner had been acquitted in the criminal case, had no bearing on the departmental action taken against the petitioner."
The above findings returned by the learned Singe Judge have RAJEEV THAKRAL 2014.11.29 15:57 I attest to the accuracy and authenticity of this document High Court Chandigarh LPA No.1792 of 2014 -4- been assailed before us in the present intra-court appeal.
We have heard learned senior counsel for the appellant and with his able assistance have gone through the record of the case.
Learned senior counsel submitted that the witnesses and the documents produced against the appellant both before the criminal court and in the departmental proceedings were the same and once he had been acquitted by the criminal court, the order of dismissal passed in pursuance to the departmental proceedings had to be set aside. Consequently, as per the learned senior counsel, the appellant deserved to be reinstated. To buttress his submissions, learned senior counsel relied on judgments of the Apex Court rendered in G.M. Tank v. State of Gujarat and another; 2006 (3) SCT 252 and Capt. M. Paul Anthony v. Bharat Gold Mines Ltd.; 1999 (2) SCT 660.
A perusal of the judgment dated 1.12.2008 passed by the Special Judge, CBI, Punjab, Patiala shows that the appellant had been acquitted on technical grounds and after giving him the benefit of doubt. In this regard, it would be useful to extract the following observations made by the Special Judge, CBI, Punjab Patiala, in his judgment dated 1.12.2008, which are as under:
"40. Thus, I conclude that due to the detailed reasons mentioned above, the evidence regarding demand of bribe is not very convincing and reliable, whereas there is considerable incriminating evidence against the accused as regards of Rs.2000/- by him from complainant and recovery of tainted money from him, in as much as besides statement of PW1 Sawinder Singh complainant PW1, there is testimony of Constable Balwinder Singh PW2, Surinder Singh PW3 and Sh. Amrik Singh DSP (Retired) PW4. From their statements, it transpires that when the fingers of the accused were dipped in the solution of sodium carbonate which was colourless initially, it RAJEEV THAKRAL 2014.11.29 15:57 I attest to the accuracy and authenticity of this document High Court Chandigarh LPA No.1792 of 2014 -5- changed its colour to light pink and that hand wash taken in the nip Ex.P1 which was then sealed. Further more it comes out that as result of pocket wash of shirt of accused colour of solution of Sodium Carbonate, which was colourless initially had changed its colour to light pink, which was taken in nip Ex.P7. The shirt of accused was also seized which was proved as Ex.P5. As a result of analysis the hand wash and pocket wash were found to contain phenolphthalein and sodium carbonate ions as per report Ex.PW4/7 of Forensic Science Laboratory, Chandigarh. That goes to show that accused had handled the currency notes and those were recovered from his possession. Such currency notes had been proved in the Court as Ex.P1 to P4. A public servant receiving such money from a customer which is other than a legal fee remuneration or charges come within mischief of misconduct for that he has already been proceeded against departmentally and dismissed from service. The CBI had recommended conducting of regular departmental inquiry against the accused and he has been punished in those proceedings. The standard of proof in departmental inquiry is much milder than in a criminal case, where the prosecution is required to prove its charge against the accused beyond a shadow of reasonable doubt with the benefit of doubt going to the accused.
41. Points Nos.ii and iii decided accordingly.
42. For the details mentioned above, the prosecution has not been able to prove its charge against the accused upto that standard. Thus, the accused against is acquitted of the charge framed against him giving him benefit of doubt. However, since the accused has been acquitted on technical grounds, this judgment shall not have any bearing on the punishment awarded to him in departmental proceedings. Case property be dealt with according to law and the file be consigned to the record room."
The above reproduced portion of the judgment of the Special Judge clearly shows that the appellant was acquitted qua the criminal charges against him on technical grounds and after giving him benefit of doubt. It is settled law by the Apex Court that the standard of proof required in a criminal case viz a viz departmental proceedings is totally different. In RAJEEV THAKRAL 2014.11.29 15:57 I attest to the accuracy and authenticity of this document High Court Chandigarh LPA No.1792 of 2014 -6- a criminal case, the prosecution has to prove the criminal case beyond all resonable doubt whereas in the departmental proceedings, the department has only to prove its case on preponderance of probabilities, as per applicable service rules.
Learned senior counsel appearing on behalf of the appellant could not dispute before us that the process adopted for departmental proceedings against the appellant was as per rules. Further, the record shows that during the departmental proceedings conducted against the appellant, principles of natural justice were duly followed.
The reliance of the learned senior counsel on the judgments of the Apex Court referred to above is misplaced. In the above referred cases, the facts were completely different. In those cases there was no finding recorded by the criminal court as in the present case that the appellant was being acquitted of criminal charges levelled against him on technical grounds after giving him benefit of doubt. Rather the law settled by the Apex Court is against the proposition sought to be raised on behalf of the appellant. In this regard, it may be useful to refer to the judgment of the Apex Court in The Divisional Controller, Ksrtc v. M.G. Vittal Rao; 2012 (1) SCC 442 wherein it has been held as under:
"Thus, there can be no doubt regarding the settled legal proposition that as the standard of proof in both the proceedings is quite different, and the termination is not based on mere conviction of an employee in a criminal case, the acquittal of the employee in criminal case cannot be the basis of taking away the effect of departmental proceedings. Nor can such an action of the department be termed as double jeopardy. The judgment of this Court in Capt. M. Paul Anthony (supra) does not lay down the law of universal application. Facts, charges and nature of evidence etc. involved in an individual case would determine as to whether RAJEEV THAKRAL 2014.11.29 15:57 I attest to the accuracy and authenticity of this document High Court Chandigarh LPA No.1792 of 2014 -7- decision of acquittal would have any bearing on the findings recorded in the domestic enquiry."
In case of Southern Railway Officers Assn. and another v. Union of India and others; 2009(9) SCC 24, the Apex Court held as under:
"Acquittal in a criminal case by itself cannot be a ground for interfering with an order of punishment imposed by the disciplinary authority. The High Court did not say that the said fact had not been taken into consideration. The revisional authority did so. It is now a well settled principle of law that the order of dismissal can be passed even if the delinquent official had been acquitted of the criminal charge."
In view of the above, there is no merit in the present appeal and the same is, resultantly dismissed.
No costs.
( SATISH KUMAR MITTAL) ( DEEPAK SIBAL )
JUDGE JUDGE
25.11.2014
rajeev
RAJEEV THAKRAL
2014.11.29 15:57
I attest to the accuracy and
authenticity of this document
High Court Chandigarh