Madhya Pradesh High Court
R.K. Solanki vs Central Bank Of India on 7 February, 2018
Bench: Hemant Gupta, Vijay Kumar Shukla
1
HIGH COURT OF MADHYA PRADESH :
JABALPUR
Writ Appeal No.780/2016
R.K.Solanki
Vs.
Central Bank of India
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CORAM :
Hon'ble Shri Justice Hemant Gupta, Chief Justice.
Hon'ble Shri Justice Vijay Kumar Shukla, Judge.
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Shri Ravish Agrawal, Senior Advocate with Shri Pranay
Verma, Advocate for the appellant.
Shri Arvind Pandey, Advocate for the respondent.
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Whether approved for reporting ? Yes/No
Whether approved for Yes
reporting?
Law laid down Two proceedings Criminal and departmental are
entirely different. They operate in different field and
have different objectives. The acquittal or exoneration
from criminal case can not conclude the departmental
enquiry and does not mechanically exonerates the
employee from the departmental enquiry/punishment.
Significant paragraph Nos. 5
JUDGMENT
(Jabalpur dated: 07.02.2018) Per: Vijay Kumar Shukla, J.-
In the instant intra-Court appeal, a challenge has been made to the order dated 08.09.2016 passed by learned Single Judge, whereby the order of dismissal from service and the orders passed in appeal and revision have been affirmed and writ petition has been dismissed.
2. Brief facts of the case are that the petitioner was 2 working as Assistant General Manager in the services of the respondent/Bank. He was posted as Principal, Central Bank Officers Training College at Bhopal. An induction training program for newly recruited Probation Officer was undertaken for the session 2010. During the course of the said training program, the Executive Director undertook a lecture of newly recruited Probationer Officers. On account of certain undisciplined behaviour and improper dress code of the probationers, the Executive Director had expressed his displeasure and conveyed to General Manager HRD to the appellant and instructed him to take strict action against such officers. It is stated that in the capacity of Principal of college, the petitioner issued notices to every probationer on 12.05.2010 calling upon them to adhere strict discipline within the college during training hours.
3. It is contended by the appellant that because of the said notice, one Probationer training officer namely Ku. Manju Sharma lodged a false police complaint against him on 16.05.2010 alleging that the petitioner had caught hold of her hand and tried to misbehave with her. On the basis of complaint, an FIR was registered against the appellant for offence punishable under Section 354 of the IPC. After 3 completion of the investigation, challan was filed against the appellant in the Court of Law.
4. During the pendency of criminal proceedings, a charge-sheet was issued to the petitioner by the respondents to the effect that he with an unwelcomed sexual determined method had touched the said officer while she was attending training programme and thus, he committed misconduct under the Regulation of the respondent Bank. The other charge was that because of the registration of the FIR against him, the said act has tarnished the image of the Bank as well as Central Bank Of India, Training Center, Bhopal. The appellant filed a writ petition W.P.No.2241/2011 (s) before this Court for stay of the departmental inquiry instituted against him pending finalisation of the criminal trial. The departmental inquiry was stayed by order dated 03.02.2011.
5. The appellant was convicted by the Magistrate on 06.02.2012 under Section 354 of the IPC and sentenced him to imprisonment for a period of 18 months. The said conviction and sentence was challenged in the appeal, the sentence was suspended in the appeal. The appellant has been acquitted by the Court of Additional Session Judge by 4 order dated 23.01.2013. After the acquittal, the petitioner submitted a representation on 05.02.2013 requested for reinstatement of his services. The appellant was reinstated in service and thereafter the departmental inquiry was revived by order dated 20.06.2013, a letter issued by the inquiry officer.
6. The appellant filed W.P. No.13254/2013 for quashing of the departmental enquiry on the ground that he has been acquitted in the criminal case. The said petition was disposed of by order dated 13.8.2013 directing the respondents to examine the representation of the petitioner for dropping departmental enquiry and reinstatement in accordance with law. A review petition No.806/2013 was filed by the respondents which was dismissed by order dated 13.10.2013. Thereafter, the respondents decided the representation and rejected the prayer of the appellant to close the departmental enquiry and the departmental enquiry continued. The appellant was punished with the order of dismissal on 7.6.2014. Departmental appeal was preferred which was also dismissed by order dated 4.9.2014. The appellant also filed review before the respondent No.2 which was also dismissed by order dated 5 29.10.2014. On the basis of the order of dismissal dated 7.6.2014, the respondents passed an order dated 5.12.2014 whereby 50% of the gratuity payable to the appellant has also been forfeited. Challenging the aforesaid orders W.P. No.19575/2014 was filed and as the same remained unsuccessful, present intra-court appeal is filed.
7. The Senior Counsel for the appellant raised submissions that in the present case, there is no independent application of mind by the Disciplinary Authority and also by the Appellate Authority. Considering the nature of charge, evidence in departmental enquiry and criminal proceedings he submitted that both the authorities have relied upon the report of the Enquiry Officer without discussing the charges and the evidence. It is also submitted that the order of punishment is highly disproportionate to the alleged charges particularly, when the appellant has already been acquitted by the Court of law on the similar charges.
8. Combatting the aforesaid submissions, Counsel for the State submitted that the impugned orders of punishment have been passed in accordance with law and the appellant has been given sufficient opportunity to 6 defend himself. It is further contended that the departmental enquiry and the criminal proceedings are distinct, therefore, the learned Single Judge has rightly held that the acquittal in the criminal case would not preclude the respondents to continue with the departmental enquiry and to pass the orders of punishment. He also submitted that the charge against the appellant has tarnished the image of the department. The punishment is not highly shocking and disproportionate, therefore, no interference is waranted.
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 7 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. (emphasis supplied)"
10. 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 8 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."
11. 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 9 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.
19. As observed in R.S. Saini v. State of Punjab in paras 16 and 17 the scope of interference is rather limited and has to be exercised within the circumscribed limits. It was noted as follows:
16. Before adverting to the first contention of the appellant regarding want of material to establish the charge, and of non-application of mind, we will have to bear in mind the rule that the court while exercising writ jurisdiction will not reverse a finding of the inquiring authority on the ground that the evidence adduced before it is insufficient. If there is some evidence to reasonably support the conclusion of the inquiring authority, it is not the function of the court to review the evidence and to arrive at its own independent finding. The inquiring authority is the sole judge of the fact so long as there is some legal evidence to substantiate the finding and the adequacy or reliability of the evidence is not a matter which can be permitted to be canvassed before the court in writ proceedings.
17. A narration of the charges and the reasons of the inquiring authority for accepting the charges, as seen from the records, shows that the inquiring authority has based its conclusions on materials available on record after considering the defence put forth by the appellant and these decisions, in our opinion, have been taken in a reasonable manner and objectively. The conclusion arrived at by the inquiring authority cannot be termed as either being perverse or not based on any material nor is it a case where there has been any non-
application of mind on the part of the inquiring authority. Likewise, the High Court has looked into the material based on which the enquiry officer has 10 come to the conclusion, within the limited scope available to it under Article 226 of the Constitution and we do not find any fault with the findings of the High Court in this regard. [Emphasis Supplied]"
12. 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. [Emphasis Supplied]"
13. As per the principles laid down in the aforesaid cases, it is clear that interference can be made against the findings of Inquiry Officer and other authorities, provided findings are perverse or it is a case of no evidence. If there is some evidence to support the conclusion of Inquiring Authority, no interference can be made. Adequacy of evidence cannot be subject matter of judicial review.
14. The another ancillary issue is : whether acquittal from criminal case will mechanically absolve/exonerate the 11 petitioners 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.
15. In Union of India Vs. Sardar Bahadur, (1972) SCC 618, the 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 12 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 canvaased 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."13
[Emphasis Supplied]
16. In Deport 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 14 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."
[Emphasis Supplied]
17. 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."
[Emphasis Supplied]
18. 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 15 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." [Emphasis Supplied]
19. 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."
20. 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".
[Emphasis Supplied]
21. In the case of Karnataka SRTC Vs. M.G. Vittal Rao, 16 (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."
[Emphasis Supplied]
22. 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 17 the ground that the complainant and his wife turned hostile." [Emphasis Supplied]
23. 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".[Emphasis Supplied]
24. 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 corelation 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 18 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." [Emphasis Supplied]
25. 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." Emphasis Supplied]
26. This Court while deciding Writ Petition No. 19575/2014 (R.K. Solanki Vs. Central Bank of India and others) has held as under:
"15. I find force in the arguments of Shri Pandey that degree of proof required in the departmental inquiry is totally different and the evidence of complainant cannot be discarded by applying the same parameters which were applicable in the criminal case. A conjoint reading of paragraphs 24 to 27 of this judgment makes it clear that the petitioner was acquitted by giving him benefit of doubt and the said judgment, by no stretch of imagination, can be said to be a judgment of acquittal on merits. Interestingly, in G.M.Tank 19 (supra) the officer was honourably acquitted by the Court {See para 20 and 31}. Same is the case of S.Bhaskar Reddy (supra) {See para 21}. In SBI Vs. R.Periyasamy- (2015) 3 SCC 101 {See page 108}, it was 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."
(Emphasis supplied)
16. 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:-
20
"....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..... (Emphasis supplied) In the light of aforesaid, I am unable to hold that after acquittal of the petitioner, the respondents were not justified in conducting the inquiry."
27. The full Bench of this Court in the case of Ashutosh Pawar Vs. High Court of Madhya Pradesh in W.P.No.5685/2016 held that the decision of criminal Court on the basis of compromise or an acquittal cannot be treated that the candidate possess good character which make him eligible as the criminal proceedings are with the view to find culpability of commission of offences whereas the appointment to Civil post is in view of his suitability to the post. The acquittal in criminal case is not a certificate of good conduct to a candidate. The competent authority has to take a decision in respect of suitability of a candidate to hold the post and that mere acquittal in criminal case would not be sufficient to infer that the candidate possess good character. The full Bench also held that the jurisdiction of the High Court in a writ petition 21 under Article 226 of the Constitution of India is to examine the decision making process then to act as Court of appeal to substitute its own decision.
28. This is, thus, well settled that the exoneration from criminal case does not mechanically exonerates the employee from the departmental inquiry/punishment. It is apposite to refer certain judgments:
29. 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. [Emphasis Supplied]
30. 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 22 order of the State Government deciding not to continue the departmental proceedings is clearly untenable and is quashed. The departmental proceedings shall continue. [Emphasis Supplied]
31. 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." [Emphasis Supplied]
32. We do not find any merit in the contention of the appellant that the disciplinary appellate authority have failed to consider the charges and evidence in detail. The Apex Court in the case of National Fertiliser Ltd. & another Vs. P.K.Khanna (2005) 7 SCC 597 held that it was not necessary for the disciplinary authority while concurring with the inquiry Officer to again pass a detailed order.
33. In the light of the aforesaid judgments of Supreme Court, it is clear that the judicial review of departmental inquiry is based on different principles and acquittal of 23 petitioners from the criminal Court will not result into exoneration of the petitioners. In the light of aforesaid analysis, in my view, there is no flaw in the decision making process. The department has led credible evidence to show that the petitioners are guilty. The findings of Inquiry Officer are neither perverse nor based on no evidence. The orders of Disciplinary Authority and Appellate Authorities are in accordance with law. In view of misconduct on the part of petitioners, it cannot be said that punishment is disproportionate and shocking warranting any interference.
34. In view of above, we do not find any error in the order of learned Single Judge. The appeal is dismissed. No order as to costs.
(Hemant Gupta) (Vijay Kumar Shukla)
Chief Justice Judge
anu
Digitally signed by
AMITABH RANJAN
Date: 2018.02.16
15:11:09 +05'30'
24
W.A.No.780/2016
Jabalpur Dated: 07.02.2018
Shri Ravish Agrawal, Senior Advocate with Shri Pranay Verma, Advocate for the appellant.
Shri Arvind Pandey, Advocate for the respondent. Judgement passed separately, signed and dated.
(Hemant Gupta) (V.K.Shukla)
CHIEF JUSTICE JUDGE
anu