Madras High Court
S.C.Dhandapani vs A.C.J. Britto Reported In 1997 Ii Llj 388 ... on 25 August, 2008
Author: S. Manikumar
Bench: S. Manikumar
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 25.08.2008
CORAM:
THE HONOURABLE MR. JUSTICE S. MANIKUMAR
W.P.No.29662 of 2006
(O.A.No.3921 of 1996)
S.C.Dhandapani ... Petitioner
v.
1. The District Revenue Officer,
Periyar District, Erode.
2. The Assistant Collector,
Dharapuram. ... Respondents
This petition came to be numbered by transfer of O.A.No.3921 of 1996 on the file of the Tamil Nadu Administrative Tribunal praying for the issuance of a Writ of Certiorarified Mandamus, to call for the records relating to the proceedings of the second respondent made in Na.Ka.9144/90F, dated 28.05.1993 as confirmed in the first respondent's proceedings Na.Ka.67879/93 AA, dated 25.03.1996, quash the same and consequently, extend all benefits both service and monetary.
For Petitioner : Mr.L.Chandrakumar
For Respondents : Mr.C.Gopinathan Addl. Government Pleader
O R D E R
The petitioner has challenged the order of the District Revenue Officer, Periyar District, first respondent herein, dated 25.03.1996, confirming the order of the Assistant Collector, Dharapuram, dated 28.05.1993, dismissing the petitioner from service and sought for a direction to the respondents to reinstate him in service and grant all monetary benefits.
2. Facts of this case are as follows:
When the petitioner was working as an Office Assistant in 1984, a charge memo was issued to him under Rule 17(b) of the Tamil Nadu Civil Service (Discipline and Appeal) Rules. Though the same was refuted, following an enquiry, the District Collector, Dharapuram, second respondent, by his order dated 28.05.1993, dismissed the petitioner from service. Appeals filed before the first respondent, dated 14.06.1993 and 22.06.1993, were dismissed and the punishment was confirmed. Aggrieved by the orders of the disciplinary and appellate authorities, the petitioner has preferred Original Application before the Tamil Nadu Administrative Tribunal, which has been subsequently transferred to this Court and renumbered as Writ Petition.
3. Assailing the impugned orders, Mr.L.Chandra Kumar, learned counsel for the petitioner submitted that the orders are liable to be set aside on the sole ground that the enquiry report was not furnished to the petitioner before inflicting the penalty of dismissal from service. According to him, non-furnishing of the same has caused serious prejudice to the petitioner and there is denial of reasonable opportunity to put forth his defence effectively. He further submitted that when the respondents initiated action under Rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules, they ought to have conducted a full-fledged enquiry as contemplated under the Rules. Before inflicting the penalty, no witnesses were examined and the department has not not marked any documents and therefore, the procedure followed by the Enquiry Officer is contrary to rule 17(b) of the above said rules. He further submitted that both disciplinary as well as appellate authorities have failed to consider the above said aspect and therefore, the whole proceedings are void abinitio. He also contended that the appellate authority has failed to follow rule 23-A, by dealing with each and every grounds of appeal memorandum and on the contrary, rejected the appeal without any reason. Therefore, the impugned orders requires interference.
4. If this court is not inclined to accept the above plea, on the question of proportionality, learned counsel for the petitioner submitted that even if the charges are held as not proved, the disciplinary as well as the appellate authorities, ought to have considered the proportionality of the punishment and there is failure to exercise the jurisdiction vested in them. Placing reliance on the decision of the Supreme Court in V.K.Kuppuraj v. Superintendent of Police reported in 2008 (5) MLJ 1301, he submitted that in exceptional cases, Court can interfere with the proportionality of punishment and prayed that a direction may be issued to the respondents to modify the same.
5. In the counter affidavit, the respondents have submitted that the petitioner was an Office Assistant in the Office of Agricultural Income Tax Officer, Dharapuram. During his tenure, he had fabricated challans with bogus seals, as though a sum of Rs.5,225.30 had been remitted into Government account in State Bank of India, Dharapuram. He has misappropriated government money and for this criminal misconduct, the petitioner was suspended by the Revenue Divisional Officer, Dharapuram on 27.09.1984. Disciplinary action was initiated and charges were framed under Rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules. On completion of the enquiry, he was dismissed from service by the Revenue Divisional Officer, on 30.09.1988. Thereafter, the petitioner sent a petition to the Hon'ble Chief Minister's Cell for cancellation of the above order. The District Revenue Officer, Periyar District, after considering the above said petition, remitted the matter to the Revenue Divisional Officer, Dharapuram for a fresh disposal, owing to certain procedural irregularities. After conducting a fresh enquiry, the Sub Collector, Dharapuram, once again dismissed the petitioner from service in his proceedings, dated 28.05.1993. On appeal, the above order was confirmed by the District Revenue Officer, Periyar District, Erode, in his proceedings, dated 25.03.1996.
6. As regards the conduct of the enquiry, the respondents have submitted that at the time of enquiry before the Enquiry Officer, the petitioner has deposed that he had already sent his written explanation, dated 20.05.1995, to each and every charge and there is nothing more to add. No documents were produced on his side and he did not examine any witness. The Enquiry Officer, on assessment of evidence and based on the records, found that the charges as proved. It is further submitted that the delinquent Officer himself has admitted the charges and confessed before the Agricultural Income Tax Officer, Dharampuram. It is also their case that when the petitioner had handedover the misappropriated amount to the Agricultural Income Tax Officer, Dharampuram on 22.09.1984 and 26.09.1984, no other proof is required. According to them, the findings of the Enquiry Officer based on material documents is not perverse and no malafide can be attributed against the enquiry officer. The charges have been proved beyond reasonable doubt that the petitioner had produced false chalans and misappropriated government money.
7. Though the petitioner was acquitted on benefit of doubt in C.C.No.158/90 of Dharapuram P.S.Cr.No.258/94, the standard of proof in departmental enquiry being 'Preponderance of Probability' and since the findings were on documentary evidence, both the disciplinary as well as the appellate authorities have concurred with the findings of the Enquiry Officer. The respondents have submitted that in the absence of any concrete rebuttal evidence, before the disciplinary authority, it is not open to the petitioner to seek for reappreciation of evidence and prayed that this Court should not sit over the findings recorded by them. According the respondents, the petitioner has been given a reasonable opportunity to put forth his defence and therefore, there is no violation of the principles of Natural Justice. For the above said reasons, they prayed for dismissal of the Writ Petition.
Heard the learned counsel appearing for the parties and perused the materials available on record.
8. The charges framed against the petitioner are as follows:
"Fw;wrhl;L vz;/1:
jhuhg[uk; ntshz;ik tUkhdthp mYtyfjh;jpy; Mf!;L 84 kw;Wk; brg;glk;gh; 84 khj';fspy; mYtyf cjtpahsuhf gzpapypU;ej fhyj;jpy; muRf;F brYj;j ntz;oa ntshz;ik tUkhdthp bjhiffs; fPH Fwpg;gpl;Ls;s njjpfSf;F vjpnu Fwpg;glg;gl;Ls;s bjhif tpgu';fspd;go bkhj;jk; U:/5225/30- jhuhg[uk; ghuj khepy t';fpapy; brYj;jg; bgw;W brd;wij t';fpapy; brYj;jhky; jhuhg[uk; ghuj khepy t';fpapd; nghyp Kj;jpiu jahh; bra;J muR ryhd;fspy; nghyp Kj;jpiu gjpj;Jk;/ nghyp gjpt[fs; ifbaGj;Jf;fs; bra;Jk; nkw;go bjhif bjyif U.5225.30- ifahly; bra;Jk;/ nkhro eltof;iffspy; <Lgl;Lk; muir Vkhw;wp fphpkpdy; eltof;iffspy; bray;gl;lJ/ nghyp ryhd; vz;/ bjhif (Ughapy;) 19/31.08.84 25.00 20/31.08.84 2531.60 21/31.08.84 667.35 22/31.08.84 976.60 23/31.08.84 62.85 24/31.08.84 726.50 10/12.09.84 167.60 11/12.09.84 67.80
------------
bkhj;jk; 5225.30 ------------ Fw;wrhl;L vz;/2
muR gzpahsuhf ,Ue;Jbfhz;L muR gzpahsh; eilKiw tpjpfis kPwpa[k; muR gzj;ij ifahly; bra;J muir Vkhw;wp[a[k; muRf;F tpnuhjkhf bray;gl;lJ/ Fw;wrhl;L vz;/3 fphpkpdy; eltof;ifapy; <Lgl;L jhuhg[uk; fhty;epiya Fw;w tGf;F vz;/258/84-d; (Crime No.258/84)-d; go Fw;w';fs; g[hpe;jJ."
9. After considering the petitioner's explanation, dated 20.05.1992, the matter was enquired into by the Assistant Collector, Dharapuram. Before the Enquiry Officer, the petitioner has deposed that he has already submitted his explanation and there is nothing to add further. He did not desire to examine any witness. On behalf of the department, the following documents were marked, viz., (1) Files of the Sub Collector in Na.Ka.9144/90, pages 1 to 196, (2) Office note pertaining to the above said file, pages 1 to 28, (3) Files of the Assistant Collector, in Ni.Mu.14713/84, dated 26.11.88, pages 1 to 558, (4) Office note pertaining to the above said file, pages 1 to 52 and (5) Service record of Thiru.S.C.Dhandapani, (Part 1 to 4) pages 1 to 112, along with the files of the Assistant Collector in Ni.Mu./14713/84.
10. On perusal of the files and on the admission made by the petitioner that he had remitted the misappropriated amount on 26.09.1984, the Enquiry Officer found that the charges as proved.
11. As per Rule 17(b) of the Rules, an oral enquiry shall be held if such an inquiry is desired by the person charged or is directed by the authority concerned. Even if a person charged has waived an oral inquiry, such inquiry shall be held by the authority concerned in respect of charges which are not admitted by the person charged and authority concerned in respect of charges which are not admitted by the person charged and which can be proved only through the evidence of witnesses. At that inquiry oral evidence shall be heard as to such of the allegations as are not admitted, and the person charged shall be entitled to cross-examine the witness to give evidence in person and to have such witnesses called, as he may wish, provided that the officer conducting the inquiry may, for special and sufficient reason to be recorded in writing, refuse to call a witness. Whether or not the person charged desired for an oral inquiry he shall be heard in person at any stage if he so desires before passing of final order.
12. It is not indispute that the petitioner had remitted the amount alleged to have misappropriated on 26.09.1984 on his free will and accord. Excepting submission of explanation, he did not adduce any oral or documentary evidence. As per rule, oral enquiry shall be held by the authority only in the case where a person charged refutes the charges. Once the amount alleged to have been misappropriated is remitted by the delinquent, in my considered opinion, there is no denial of the charges and consequently, there is no need to conduct a detailed enquiry by examining of witnesses. It is evident from the minutes that the petitioner was provided with personal hearing on 10.05.1993, in respect of charges. Therefore, this Court is of the considered view that there is substantial compliance of Rule 17(b) of the rules and there is no violation of the Principles of Natural Justice in so far as the procedure followed by the Enquiry Officer is concerned.
13. As regards the next contention that the petitioner was not furnished with a copy of the enquiry report before inflicting penalty, which has caused prejudice, appeal grounds at pages 21 and 22 in the typed set of papers, do not indicate that the petitioner has raised the plea of prejudice on account of non-furnishing of the copy of the Enquiry Report. Allegation of prejudice on account of non-furnishing of enquiry report should be pleaded before the departmental authorities. In the absence of plea and proof, it is not open to the delinquent officer to raise it as a ground for the first time in the Writ Petition. Infraction of procedure such as non-furnishing of documents or enqury report should cause prejudice and it should be deterimental to the charged officer and mere non-furnishing of enquiry report is not fatal to the disciplinary proceedings, unless prejudice is demonstrated before the departmental authorities. In this context, it is worthwhile to extract some of the judgments on the aspect of non-furnishing of the documents and prejudice.
14. In Syndicate Bank and others v. Venkatesh Guru Raukathi reported in 2006 (3) SCC 150, the Supreme Court held that non-supply of documents on which the Enquiry Officer does not rely during the course of enquiry does not create prejudice to the deliquent. It is only those documents which are relied upon by the Enquiry Officer to arrive at his conclusion, the non-supply of which would cause of prejudice, being violative of principles of natural justice. Even then, the prejudice allegedly caused by the non-supply of of those documents must be established by the delinquent. It is well settled that law that the doctrine of principles of natural justice or not embodied rules. It cannot be put in a straight jacket formula it depends upon the facts and circumstances of each case. To sustain the allegation of violation of principles of natural justice. One must establish the prejudice has been caused to him by the non-observance of principles of natural justice. It is not possible to countenance the submission that all the the documents which does not form part of the charges are relied upon by the prosecution during the course of enquiry non-supply thereof would cause any prejudice to the delinquent officer.
15. In Secretary to Government and others vs. A.C.J. Britto reported in 1997 II LLJ 388 Supreme Court held that non-furnishing of enquiry report and mere non-furnishing of the copies of the documents would not vitiate departmental action and the Administrative Tribunal has to find out how documents are relevant and as to how he was prejudiced in defending himself as a result of failure to supply copies of documents.
16. In U.P. State Textile Corporation Ltd., v. P.Chaturvedi and others, reported in 2006 (1) LLJ 413 at para 10 held that, the view of the High Court setting aside the penalty on the ground of non-supply of additional grounds is untenable, as the petitioner has not shown as to how the non-supply of the list has caused prejudice.
17. A Full Bench of the Andra Pradesh High Court in K.Swarnakumari, Subordinate Judge (compulsorily Retd.) vs. Government of Andra Pradesh rep. By its Secretary, Law (legislative Affairs and J. Courts C) Department and others reported in 2006 2 LLN 439 at paragraph 29 and 30 held as follows:
"29. It has to be further observed that the petitioner must satisfy the prejudice that caused to her, i.e., procedural departure, which caused detriment to her legal claims on rights. It is to be observed that it is for the delinquent to demonstrate the prejudice and the same has to be considered on its own merits. The earlier Full Bench in Venkata Bharani (vid supra), case observed that natural justice cannot be applied in its rigid form and it is flexible in its application and that the applicability of the principles of natural justice has undergone a sea-change, and a slight infraction or procedural safeguard cannot vitiate the disciplinary proceedings unless it is held that thereby the delinquent employee was seriously prejudiced. In view of the submission made by the learned Standing Counsel appearing on behalf of the High Court that petitioner herself has chosen that she is not desirous to be heard in person basing on the record, we are of the opinion that such action on the part of the petitioner would not have caused a prejudice to her to invoke the doctrine of prejudice and also to contend that the principles of natural justice has been violated. Further, straight jacket formula cannot be made applicable but compliance of the doctrine is solely dependent upon the facts and circumstances of each case.
30. ....However, in view of the law laid down by the earlier Full Bench that unless the employee is seriously prejudiced by infraction of procedural safeguard, the disciplinary proceedings are not invalid and that the doctrine of prejudice may arise only on demonstration since no material is placed before this Court that procedure contemplated of the entire set of rules has been ignored and any prejudice is caused to the petitioner."
18. In State Bank of Bikaner & Jaipur & Ors. And Shri Prabhu Daya Grover with Prabhu Dayal Grover and State Bank of Bikaner &L Jaipur & Ors. reported in 1996 (1) LLJ 288 and in State Bank of Patiala & Ors. And S.K.Sharma reported in 1996 2 LLJ 296, the Supreme Court held that the allegation of prejudice on account of non-furnishing of details, ought to have been raised before departmental proceedings or before the appellate authority. In the absence of any plea and proof, no objection can be raised later on and therefore it amounts to substantial compliance of the rules and hence, there is no violation of principles of natural justice.
19. In State of UP vs. Harendra Arora and another reported in 2001 6 SCC 392 the Supreme Court held that the furnishing a copy of the enquiry report is procedure and mandatory, but a person seeking to quash the order of dismissal on the ground of non-compliance of the provision enabling furnishing the report must show that he was prejudiced by that defect. In the reported judgement, at paras 12 and 13, the court held as follows:
""12.Thus from the case of ECIL it would be plain that in cases covered by the constitutional mandate i.e. Article 311(2), non-furnishing of enquiry report would not be fatal to the order of punishment unless prejudice is shown. If for infraction of a constitutional provision an order would not be invalid unless prejudice is shown, we fail to understand how requirement in the statutory rules of furnishing copy of the enquiry report would stand on a higher footing by laying down that question of prejudice is not material therein. 13.The matter may be examined from another viewpoint. There may be cases where there are infractions of statutory provisions, rules and regulations. Can it be said that every such infraction would make the consequent action void and/or invalid? The statute may contain certain substantive provisions, e.g., who is the competent authority to impose a particular punishment on a particular employee. Such provision must be strictly complied with as in these cases the theory of substantial compliance may be available. For example, where a rule specifically provides that the delinquent officer shall be given an opportunity to produce evidence in support of his case after the close of the evidence of the other side and if no such opportunity is given, it would not be possible to say that the enquiry was not vitiated. But in respect of many procedural provisions, it would be possible to apply the theory of substantial compliance or the test of prejudice, as the case may be. Even amongst procedural provisions, there may be some provisions of a fundamental nature which have to be complied with and in whose case the theory of substantial compliance may not be available, but the question of prejudice may be material. In respect of procedural provisions other than of a fundamental nature, the theory of substantial compliance would be available and in such cases objections on this sore have to be judged on the touchstone of prejudice. The test would be, whether the delinquent officer had or did not have a fair hearing. In the case of Russell v. Duke of Norfolk it was laid down by the Court of Appeal that the principle of natural justice cannot be reduced to any hard and fast formulae and the same cannot be put in a straitjacket as its applicability depends upon the context and the facts and circumstances of each case."
20. In Union Bank of India vs. Viswa Mohan, reported in 1998 (4) SCC 310, the Supreme Court considered a case where four charge sheets were issued to the employee of a bank. According to the delinquent employee, the first sheet was not relevant for deciding the quantum. High Court considering the aspect of non-furnishing of enquiry report held that the charges are inextricably mixed up by applying the principle of severability, set aside the order of penalty. On appeal, the Supreme Court reversed the judgement and held that unless the employee was able to demonstrate before the court that he was prejudiced by non-supply of enquiry officer's report/finding, the penalty cannot be interfered with.
21. As regards the next contention that the appellate authority has failed to consider each and every grounds raised in the memorandum of appeal and that the said order exhibits non-application of mind, the Supreme Court in in G.M.(P.W.), Canara Bank v. M.Raja Rao reported in 2001 (II) LLJ 819, had an occasion to consider as to whether the appellate authority is required to pass a detailed order, while concurring with the decision of the disciplinary authority. In the above reported judgment, a Learned single Judge of Karnataka High Court did not find any infirmity with the disciplinary Proceedings and dismissed the Writ Petition. On appeal, the Division bench, came to the conclusion that the disciplinary Authority, while agreeing with the report of the Enquiry Officer, is required to give reasons and the appellate authority has to consider the appeal in accordance with the Banking Regulations and set aside the order of removal from service. On appeal preferred by the Bank, the Supreme Court, at Paragraphs 4, 5 and 6 held as follows:
"4. ........... The order of the Disciplinary Authority unequivocally indicates that he has gone into the findings of the Enquiring Authority and agreed with the same. When a Disciplinary Authority agrees with the findings and conclusions of the Enquiring Authority, it is not necessary in law to give any detailed reasons as to why he intends to agree with the findings of the Enquiring Authority. It is of course true that in the matter of award of punishing if Disciplinary Authority considers materials other than the materials which had been produced before the EO then the delinquent must be given a notice thereof or else the conclusions of the Disciplinary Authority would get vitiated......
5. So far as the order of the Appellate Authority is concerned, it is undoubtedly true that as provided in the Regulation, the Appellate Authority is required to pass a reasoned order. The question further arises for consideration is even though the order may be a reasoned order, can it be held to have suffered from any infirmity because all the contentions raised as alleged by the counsel for the delinquent, have not been dealt with?
6. On examining the order of the Appellate Authority, we are of the considered opinion that the Appellate Authority not only afforded opportunity of hearing to the delinquent, but also considered the contentions raised and then taking a totality of the entire circumstances agreed with the order of the Disciplinary Authority and dismissed the appeal. In that view of the matter, we do not think that any infirmity has been committed by the Appellate Authority in not giving detailed reasons on the contentions raised by the delinquent. In this view of the matter, the Division Bench also committed error in holding that the Appellate Authority committed a serious infirmity in dismissal of the appeal in question."
22. In a recent decision of the Supreme Court in 2008 (1) Supreme Today 617, (Divisional Forest Officer, Kottagudem's case) one of the contentions was that the appellate/revisional authorities have failed to consider the grounds raised before them and that the orders passed thereto are cryptic without any detailed reasons. While dealing with the above said contention, the Supreme Court re-affirmed the decision rendered earlier in R.P.Bhatt's case and Ram Chander v. Union of India reported in 1986 (3) SCC 103 and at Paragraph 19 of the judgment, held as follows:
"19. It is no doubt also true that an appellate or revisional authority is not required to give detailed reasons for agreeing and confirming an order passed by the lower forum, but in our view, in the interests of justice, the delinquent officer is entitled to know atleast the mind of the appellate or revisional authority in dismissing his appeal and/or revision. It is true that no detailed reasons are required to be given, but some brief reasons should be indicated even in an order affirming the views of the lower forum."
23. Perusal of the appellate order discloses that the appellate authority has considered the gravity of charges levelled against the petitioner, his explanation, findings of the Enquiry Officer and independently applied his mind. While considering the appeal memorandum, the appellate authority, has found that the petitioner has committed fabrication of challans and also exercised his official position for personal gain. The appellate authority has further observed that unlike in criminal proceedings, the standard of proof in the departmental enquiry has been held to be preponderance of probability and no strict proof is required and he has also considered the quantum of penalty. It is trite that the appellate authority shall consider, (a) Whether the facts on which the order was based have been established, (b) Whether the facts established afford sufficient ground for taking action, and (c) Whether the penalty is excessive, adequate or inadequate, and thereafter, pass orders. The appellate authority has considered all the parameters and has also given brief reasons, with reference to the evidence on record and the principle of preponderance of probability to be followed in disciplinary matters. The appellate order is in conformity the ratio decidendi of the Apex Court, and I do not find any illegality. Therefore, the contention of the learned counsel for the petitioner that the appellate order is a non-speaking order cannot be accepted.
24. It is well settled that findings of fact recorded by the Enquiry Officer cannot be interfered with, unless the petitioner is able to prove that finding of the disciplinary authority is perverse on the face of it or it is a case of no evidence. In Gultheep Singh v. Commissioner of Police and others, reported in 1999 (2) SCC 10, at Paragraph No.9, the Supreme Court held that normally the Apex Court and the High Court will not interfere with the finding of fact recorded at the domestic enquiry, but if the finding of guilt is based on no evidence, it would be a perverse finding and amenable to judicial scrutiny.
25. On going through the minutes, orders of the disciplinary as well as the appellate authorities, I am convinced that the findings of the enquiry officer are based on documentary evidence, admission of the petitioner and his subsequent conduct in remitting the sum misappropriated. The scope of disciplinary proceedings and that of the criminal proceedings under the penal laws are quiet different, exclusive and independent of each other. The object of the criminal trial is to inflict appropriate penalty on the offender, whereas the purpose of departmental enquiry is to deal with the delinquent for the misconduct and impose appropriate penalty in accordance with the service rules. The standard of proof required in criminal proceedings and the departmental action are not the same. In the criminal case, the person is charged for an offence committed by him against the State entailing imprisonment or fine or both, depending upon the gravity of the offence. For convicting a person, the test is proof beyond all reasonable doubt and the burden of proof by the prosecution is heavy, because he is presumed to be innocent. Whereas, in departmental enquiry, it is sufficient to hold the charge of misconduct as proved, provided there is acceptable evidence, on the basis of preponderance of probability.
26. Acquitted in criminal case would not operate as a bar for drawing up of a disciplinary proceeding against a delinquent. It is well settled principle of law that yardstick and standard of proof in 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 departmental proceedings is preponderance of probabilities. The above principle of law is reaffirmed in many cases, like West Bokaro Colliery (TISCO Ltd.,) v. Ram Pravesh Singh reported in 2008 (3) SCC 729, Noida Enterpreneurs Association v. Noida reported in 2007 (10) SCC 385, Suresh Pathvella v. Oriental Bank of Commerce, reported in 2006 (10) SCC 752. The Supreme Court in South Bench State Transport Corporation v. Sapan Kumar Mutra reported in 2006 (2) SCC 584, has summarily rejected the contention that departmental proceedings could not be initiated or continued after acquittal and punishment should not be awarded. Acquittal on benefit of doubt is no bar for imposing a penalty in a departmental proceedings on the same charge is the ratio decidenti in Senior Superintendent of Post Offices v. A. Gopalan reported in 1997 (11) SCC 239.
27. It is also useful to extract Para 11 of the judgment in Ajay Kumar Nag v. G.M.(PJ) Indian Oil Corporation Ltd., reported in 2005 (7) SCC 764, where the Supreme Court has explained the relative scope of departmental enquiry and criminal trial, the objectives, procedure and proof which are required in the proceedings before the Court of and domestic enquiry, "11. As far as acquittal of the appellant by a criminal court is concerned, in our opinion, the said order does not preclude the Corporation from taking an action if it is otherwise permissible. In our judgment, the law is fairly well settled. Acquittal by a criminal court would not debar an employer from exercising power in accordance with the Rules and Regulations in force. The two proceedings, criminal and departmental, are entirely different. They operate in different fields and have different objectives. Whereas the object of criminal trial is to inflict appropriate punishment on the offender, the purpose of enquiry proceedings is to deal with the delinquent departmentally and to impose penalty in accordance with the service rules. In a criminal trial, incriminating statement made by the accused in certain circumstances or before certain officers is totally inadmissible in evidence. Such strict rules of evidence and procedure would not apply to departmental proceedings. The degree of proof which is necessary to order a conviction is different from the degree of proof necessary to record the commission of delinquency. The rule relating to appreciation of evidence in the two proceedings is also not similar. In criminal law, burden of proof is on the prosecution and unless the prosecution is able to prove the guilt of the accused beyond reasonable doubt, he cannot be convicted by a court of law. In a departmental enquiry, on the other hand, penalty can be imposed on the delinquent officer on a finding recorded on the basis of preponderance of probability. Acquittal of the appellant by a Judicial Magistrate, therefore, does not ipso facto absolve him from the liability under the disciplinary jurisdiction of the Corporation. We are, therefore, unable to uphold the contention of the appellant that since he was acquitted by a criminal court, the impugned order dismissing him from service deserves to be quashed and set aside."
28. In the light of the above legal principles, the contention of the petitioner that he has acquitted by the criminal Court and therefore, no proceedings can be initiated is untenable.
29. Merely because, the petitioner has been acquitted before the Criminal Court on the ground that the offence charged was not proved beyond reasonable doubt, that would not automatically absolve the petitioner of the charges not he can claim immunity from disciplinary proceedings. The decision relied on by the learned counsel for the petitioner is not applicable to the present case, inasmuch as there is a categorical finding that the petitioner has misappropriated Government funds and fabricated certain documents to cover up his illegal act. Once the amount alleged to have been misappropriated by the government servant is remitted by him, on his own accord, the factum of misappropriation is established and thereafter, it is not open to him to contend that there is an infraction in the conduct of enquiry, by not examining the witnesses. Oral evidence is required in a case, where facts have to be established by examining witnesses. If the allegations can be proved by production of documents, like a case of misappropriation or tampering of records, this Court is of the view that there is no requirement to conduct a detailed enquiry, if the charges are admitted by the delinquent. As stated supra, documentary evidence has been let in by the department to prove the charges. The charges have been proved and the punishment inflicted is commensurate. Therefore, I do not find any valid grounds to interfere with the impugned orders. Hence the Writ Petition is dismissed. No costs.
25.08.2008 skm To
1. The District Revenue Officer, Periyar District, Erode.
2. The Assistant Collector, Dharapuram.
S. MANIKUMAR, J.
skm W.P.No.29662 of 2006 25.08.2008