Allahabad High Court
Union Of India Throu.General Manager ... vs Hari Kishan Yadav on 7 January, 2020
Bench: Pankaj Kumar Jaiswal, Narendra Kumar Johari
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Court No. - 1 Case :- SPECIAL APPEAL DEFECTIVE No. - 6 of 2020 Appellant :- Union Of India Throu.General Manager Northern Railway & Ors. Respondent :- Hari Kishan Yadav Counsel for Appellant :- Chandra Shekhar Sinha Counsel for Respondent :- Shireesh Kumar Hon'ble Pankaj Kumar Jaiswal,J.
Hon'ble Narendra Kumar Johari,J.
(1) Heard Sri Chandra Shekhar Sinha, learned counsel for the appellants and Sri Shireesh Kumar, learned counsel for the writ petitioner/respondent.
(2) This intra court appeal is barred by 301 days.
(3) On due consideration, since reasons assigned in the affidavit filed in support of application for condonation of delay in filing the present special appeal (C.M. Application No. 842 of 2020) are satisfactory, therefore, we allow C.M. Application No. 842 of 2020 and condone the delay in filing the present special appeal.
(4) This special appeal has been filed by the department against the judgment and order dated 06.02.2019 passed in Service Single No. 20094 of 2016 : Hari Kishan Yadav Vs. Union of India and others, whereby the learned Writ Court, while allowing the writ petition, quashed the order of removal dated 15.01.2015, appellate order dated 01.05.2015, revisional order dated 07.08.2015 and order passed on mercy appeal dated 06.10.2015 and directed the appellants herein to reinstate the writ petitioner in service on the post of Head Constable and to provide all consequential benefits admissible to the post within a period of three months from the date of production of certified copy of the order.
(5) Brief facts of the case are that respondent/writ petitioner was initially appointed on the post of Constable in Railway Protection Force on 01.06.1995. On 01.01.2009, he was promoted to the post of Head Constable. While working as Head Constable, he was placed under suspension vide order dated 26.09.2013 in contemplation of enquiry. On 11.11.2013, a charge-sheet was issued to him and the charge levelled against him was that he was involved in theft of railway property. After enquiry, the Enquiry Officer had submitted report on 31.08.2014. On receipt of the enquiry report, the Disciplinary Authority issued show cause notice dated 7.11.2014, to which the writ petitioner submitted his reply on 10.12.2014. Thereafter, the Disciplinary Authority removed the writ petitioner from services vide order dated 15.01.2015, against which, an appeal was filed by the petitioner, which was dismissed vide order dated 15.1.2015. The writ petitioner, thereafter, filed revision, which too was rejected vide order dated 7.08.2015 and, thereafter, mercy appeal was filed, which too was rejected vide order dated 06.10.2015.
(6) During pendency of the enquiry, a criminal case was also lodged against the writ petitioner for theft of railway property. After considering the material evidence on record, the Trial Court came to the conclusion that no case has been made out against the writ petitioner in the alleged incident and, therefore, he was acquitted from the charges levelled against him vide judgment and order dated 21.07.2017 by the learned Additional Chief Judicial Magistrate, Northern Railway. Against the judgment and order dated 21.07.2017, no appeal has been filed by the department and the same attains finality.
(7) Considering the aforesaid and also gone through the law laid down by the Apex Court in G.M. Tank Vs. State of Gujarat and others : 2006 (5) SCC 446, Baljinder Pal Kaur Vs. State of Punjab and others : 2016 (1) SCC 671 and Capt. M Paul Anthony Vs. Bharat Gold Mines Ltd. and another : 1999 (3) SCC 679, the learned Writ Court has came to the conclusion that once the writ petitioner has been acquitted in a criminal case honorably, on the same set of facts and chrages and evidence, there is no justification to permit continuance of the orders impugned in the writ petition to stand and accordingly, allowed the writ petition by the impugned order.
(8) Learned counsel for the appellants has drawn our attention to page No. 234 of the appeal, which is internal page No.6 of the judgment and order dated 21.07.2017 passed by the learned Additional Chief Judicial Magistrate and has submitted that P.W.-4 Brij Kishore Ram, Assistant Security Commissioner, Railway Protection Force, in his cross-examination, has very categorically made admission of theft of batteries. This fact has not been considered by the learned Writ Court while allowing the writ petition.
(9) We have gone through para-2 of page no. 234 of the appeal (Supra). P.W.4 Brij Kishore Ram has also stated that at the time of offence, he was not posted there but one Mr. Bhatnagar was Senior Material Manager was the incharge. Mr. Bhatnagar, in his statement, has very categorically stated before the trial Court that there is no shortage of battery in the store.
(10) Considering the statement of P.W.4 Brij Kishore Ram, we cannot accept the plea of the learned counsel for the appellants that though P.W.4 Brij Kishore Ram made admission of theft of batteries but this fact has not been considered by the learned Writ Court while allowing the writ petition, because Mr. Bhatnagar, who was present at the time of offence and as per his statement, there is no shortage of battery in the store. Thus, we are of the view that once a departmental enquiry and the criminal trial are on same set of facts and charges, evidence and witnesses and the employee has been acquitted honorably in the criminal trial, then, findings to the contrary on the very same evidence in the departmental proceeding would be unjust. Law on the subject is well settled.
(11) Learned counsel for the appellants has also drawn our attention to the latest decision of the Apex Court in Shashi Bhusan Prasad Vs. Inspector General Central Industrial Security Force & others : 2019 Legal Eagle 801 and has submitted that the acquittal by the Criminal Court in a judicial proceeding does not ipso facto absolve the respondent/writ petitioner from the liability under the disciplinary jurisdiction of the authority.
(12) Para-19 to 22 of Shashi Bhusan Prasad (Supra) reads as under :
"19. We are in full agreement with the exposition of law laid down by this Court and it is fairly well settled that 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 an offender, the purpose of enquiry proceedings is to deal with the delinquent departmentally and to impose penalty in accordance with the service Rules. 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. Even 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 whereas in the departmental enquiry, penalty can be imposed on the delinquent on a finding recorded on the basis of ''preponderance of probability'. Acquittal by the Court of competent jurisdiction in a judicial proceeding does not ipso facto absolve the delinquent from the liability under the disciplinary jurisdiction of the authority. This what has been considered by the High Court in the impugned judgment in detail and needs no interference by this Court.
20. The judgment in M. Paul Anthony case (supra) on which the learned counsel for the appellant has placed reliance was a case where a question arose for consideration as to whether the departmental proceedings and proceedings in a criminal case on the basis of same sets of facts and evidence can be continued simultaneously and this Court answered in para 22 as under: "The conclusions which are deducible from various decisions of this Court referred to above are:
(i) Departmental proceedings and proceedings in a criminal case can proceed simultaneously as there is no bar in their being conducted simultaneously, though separately.
(ii) If the departmental proceedings and the criminal case are based on identical and similar set of facts and the charge in the criminal case against the delinquent employee is of a grave nature which involves complicated questions of law and fact, it would be desirable to stay the departmental proceedings till the conclusion of the criminal case.
(iii) Whether the nature of a charge in a criminal case is grave and whether complicated questions of fact and law are involved in that case, will depend upon the nature of offence, the nature of the case launched against the employee on the basis of evidence and material collected against him during investigation or as reflected in the chargesheet.
(iv) The factors mentioned at (ii) and (iii) above cannot be considered in isolation to stay the departmental proceedings but due regard has to be given to the fact that the departmental proceedings cannot be unduly delayed.
(v) If the criminal case does not proceed or its disposal is being unduly delayed, the departmental proceedings, even if they were stayed on account of the pendency of the criminal case, can be resumed and proceeded with so as to conclude them at an early date, so that if the employee is found not guilty his honour may be vindicated and in case he is found guilty, the administration may get rid of him at the earliest."
21. It may not be of assistance to the appellant in the instant case for the reason that the charge levelled against the appellant in the criminal case and departmental proceedings of which detailed reference has been made were on different sets of facts and evidence having no nexus/corelationship. The kind of criminal act/delinquency which he had committed in discharge of his duties in the course of employment. That apart, much before the judgment of the criminal case could be pronounced, the departmental enquiry was concluded and after the Inquiry Officer had held him guilty, he was punished with the penalty of dismissal from service.
22. The judgment in G.M. Tank case(supra) on which the learned counsel for the appellant has placed reliance was a case where this Court had proceeded on the premise that the charges in the criminal case and departmental enquiry are grounded upon the same sets of facts and evidence. This may not be of any assistance to the appellant as we have observed that in the instant case the charge in the criminal case and departmental enquiry were different having no nexus/corelationship based on different sets of facts and evidence which has been independently enquired in the disciplinary proceedings and in a criminal trial and acquittal in the criminal proceedings would not absolve the appellant from the liability under the disciplinary proceedings instituted against him in which he had been held guilty and in sequel thereto punished with the penalty of dismissal from service."
(13) Considering the aforesaid so also the ratio laid down by the Apex Court in Shashi Bhusan Prasad (Supra), we are of the view that appellants have failed to prove the material fact that shortage of battery was found. The learned Writ Court, on considering the entire material/evidence available on record, has recorded a specific finding that once the petitioner has been acquitted in a criminal case honorably, on the same set of facts and charges and evidence, there is no justification to permit continuance of the orders impugned in the writ petition to stand. Thus, the learned Writ Court has rightly quashed the orders impugned in the writ petition.
(14) With the aforesaid, no case for interference of well reasoned impugned order is made out.
(15) The special appeal being devoid of merits is hereby dismissed.
(Narendra Kumar Johari, J.) (Pankaj Kumar Jaiswal, J.) Order Date :- 7.1.2020 Ajit/-