Karnataka High Court
Hindustan Aeronautics Limited vs Sri C Raghunathan on 20 January, 2022
Bench: S.Sujatha, Ravi V Hosmani
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20TH DAY OF JANUARY 2022
PRESENT
THE HON'BLE MRS. JUSTICE S. SUJATHA
AND
THE HON'BLE MR. JUSTICE RAVI V. HOSMANI
W.A.No.3236/2018 (S-DIS)
BETWEEN:
1. HINDUSTAN AERONAUTICS LIMITED
BANGALORE COMPLEX
OLD AIRPORT ROAD
BANGALORE-560 017.
REPRESENTED BY THE
MANAGING DIRECTOR
NOW REPRESENTED BY
CHIEF EXECUTIVE OFFICER.
2. THE GENERAL MANAGER &
DISCIPLINARY AUTHORITY
FOUNDRY & FORGE DIVISION
M/s. HINDUSTAN AERONAUTICS LIMITED
BANGALORE COMPLEX
OLD AIRPORT ROAD
BANGALORE-560 017.
3. SRI MOHAN ABRAHAM
ADDITIONAL GENERAL MANAGER
(SINCE RETD.,)
PRESENTLY RESIDING AT
NO.412, 2ND CROSS A CROSS
2
OMBR LAYOUT, BANASWADI
BANGALORE-560 043. ...APPELLANTS
[BY SRI.PRADEEP S. SAWKAR, ADVOCATE
(VIDEO CONFERENCE)]
AND:
SRI C. RAGHUNATHAN
S/O SRI CHANNAN
AGED ABOUT 58 YEARS
DEPUTY MANAGER
(NOW DISMISSED FROM SERVICE)
M/s. HINDUSTAN AERONAUTICS LIMITED
BANGALORE COMPLEX, OLD AIRPORT ROAD
BANGALORE-560 017
AND R/A P-12, 14TH CROSS
HAL QUARTERS, CDJ QUARTERS
MARATHAHALLI, BANGALORE-560 032.
...RESPONDENT
[BY SRI K. SUBBA RAO, SR. COUNSEL A/W
SRI.SATHEESHA K.N., ADVOCATES (VIDEO
CONFERENCE)
THIS WA IS FILED UNDER SECTION 4 OF THE
KARNATAKA HIGH COURT ACT PRAYING TO SET
ASIDE THE ORDER DATED 03.10.2018 PASSED BY
THE LEARNED SINGLE JUDGE IN W.P.No.29276/2014
AND ALLOW THIS APPEAL.
THIS APPEAL HAVING BEEN HEARD AND
RESERVED FOR JUDGMENT ON 07.10.2021, THIS
DAY, RAVI V. HOSMANI J., PRONOUNCED THE
FOLLOWING:
3
JUDGMENT
Challenging the judgment dated 03.10.2018 passed by learned Single Judge in W.P.29276/2014, this appeal is filed by respondents in the writ petition.
2. The appellants herein were respondents in writ petition, while respondent herein was the petitioner. They will hereinafter be referred to as per their respective ranks in this appeal.
3. Sri. Pradeep S. Sawkar, learned counsel for appellants submitted that respondent - C. Raghunathan joined services of appellant no.1 as Assistant Engineer (Aero), Grade - I in Design Complex, on 29.01.1991. On, 21.06.2006, he was issued with Articles of charge (Annexure - N) imputing that with a view to derive pecuniary advantage by corrupt or illegal means abusing his position as a public servant, respondent had demanded through Sri. M. P. Shivshankar (his 4 accomplice) from Sri. Vemula Madhukar, a sum of Rs.2.00 lakhs as illegal gratification for arranging appointment of Sri. Vemula Madhukar as Executive Trainee (Technical) and in pursuance thereof had demanded and accepted Rs.40,000/- as advance payment of illegal gratification and thereby obtained pecuniary advantage for himself.
4. And further that, Sri. Vemula Madhukar was declared passed and selected in the test for selection of Executive Trainees held on 12.10.2003 and 16.10.2003. Though, Sri. M. Masilamani signed letter of offer of appointment, it was handed over to respondent. Sri. M.P. Shivshankar thereafter met Sri. Vemula Madhukar and demanded Rs.4.00 lakhs as illegal gratification.
5. Learned counsel further submitted that respondent was issued with three other Articles of charges, earlier. The first one was issued on 23.11.2004 (Annexure - C) alleging obtaining illegal 5 gratification in connivance with Sri. Masilamani, received original letters of appointment of Sri. V. Senthil Kumar and Sri. Janaki Rami Reddy for the post of Executive Trainee (Technical) with ulterior motive of demanding bribe. The second Articles of charge (Annexure - R3) was issued on 25.02.2006 alleging acquisition of assets and pecuniary resources valued at Rs.12,80,491/- which were disproportionate his known and lawful sources of income. The third Articles of charge dated 21.06.2006 was alleging obtaining pecuniary advantage by corrupt and illegal means in connivance with Sri. Masilamani abusing his position as public servant demanded through Sri. K.K. Jagannatha Reddy, illegal gratification other than legal remuneration for handing over letter of appointment of Sri. Janaki Rami Reddy as Executive Trainee (Technical) and thereby tried to obtain pecuniary advantage for himself.
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6. It was submitted that for various reasons, only enquiry in pursuance of fourth Articles of charge was pursued and departmental enquiry was held affording opportunity and after considering findings therein, disciplinary authority passed order of punishment on 04.01.2008, (Annexure - T) dismissing respondent from service which would also be a disqualification for future employment. Challenging same, respondent filed appeal before Appellate Authority. But it was rejected on 01.07.2010 (Annexure
- Y). More than 3 ½ years thereafter, respondent submitted representation on 28.02.2014 for revoking order of dismissal and for conducting fresh enquiry. The representation was rejected on 29.03.2014, citing rejection of appeal on 1.07.2010.
7. Thereafter, W.P. No.29276/2014 was filed before this Court challenging order of disciplinary authority as well as order of Appellate Authority, 7 belatedly. It was submitted that learned Single Judge illegally interfered with order of punishment. It was submitted that one of main reasons assigned was acquittal of respondent in Criminal case even though, it was in respect of complaint by Sri. V. Senthil Kumar, which would be irrelevant, as charge in the instant case was based on complaint of Sri Vemula Madhukar. Learned Single Judge further held that mere statement of PW.1 in departmental enquiry that he was producing investigation records would not constitute evidence, ignoring law that strict rules of evidence do not apply to departmental proceedings. It was further observed that non-examination of all witnesses named in list of witnesses appended to Articles of Charge would vitiate departmental enquiry, ignoring law that sufficiency of evidence would not be a ground for judicial review and it was in the discretion of management whether or not to examine all or any of its witnesses. It was submitted that the next reason assigned that the basis for criminal 8 trial and departmental enquiry were same and therefore acquittal in criminal trial would entail acquittal in departmental proceedings was also contrary to settled principles of law that criminal trial and departmental proceedings stand of different footing as 'standard of proof' applicable are different. It was submitted that even reasoning that enquiry report did not refer to acquittal in criminal trial and even reference to findings of Sessions Court by learned Single Judge would be illegal. It was also submitted that learned Single Judge did not properly consider delay and latches in approaching this Court. It was contended that conclusion arrived at by learned Single Judge that Enquiry Officer acted in mechanical manner and that order of punishment would not sustain on ground of proportionality were all wholly erroneous and contrary to law.
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8. To substantiate his submission that reference to said order would be an irrelevant consideration, our attention was drawn to judgment passed by Sessions Court in Spl.C.C.No.183/2004 (Annexure - Z) which was in respect of complaint by Sri. V. Senthil Kumar and not in respect of complaint by Sri. Vemula Madhukar. It was further submitted that acquittal in any case was on benefit of doubt and was not an honourable acquittal, which was lost sight of. Our attention was further drawn to order dated 21.11.2015 (Annexure - Z1) wherein application under Section 218 of Cr.P.C. for supplementary charge sheet against respondent herein came to be rejected. It was submitted that second charge sheet was rejected and consequently respondent was discharged. Even same was not honourable acquittal.
9. Learned counsel further submitted that challenging rejection of his request for engaging services 10 of advocate in departmental enquiry, respondent had earlier filed W.P.No.21738/2005 which was disposed of on 07.10.2005 (Annexure - F) issuing direction to reconsider his request, as Presenting Officer was a Law Graduate. On rejection of request after reconsideration, respondent had filed W.P.No.7959/2006. The said writ petition was dismissed on 30.06.2009 (Annexure - J) with observation that aggrieved party had to await conclusion of disciplinary proceedings. It was further submitted that respondent had also filed W.P.No.9239/2006 seeking quashing of Articles of charge dated 21.06.2006 disposed of on 30.06.2009 (Annexure - L) reserving liberty to seek for discharge, in case, he secures honourable acquittal by Criminal Court. It was submitted that W.P.No.2328/2007 seeking quashing of Articles of charge dated 21.06.2006 was disposed of on 23.06.2009 (Annexure - M) as having become infructuous in view of order of dismissal from service passed by disciplinary authority, reserving 11 liberty to respondent to avail remedy of appeal. It was submitted that even W.P.No.5784/2007 filed by respondent was also dismissed on 23.06.2009.
10. Learned counsel further submitted that enquiry was held on thirteen dates. On 16.12.2006, it was adjourned due to absence of delinquent employee. It was adjourned again on 17.01.2007 and on 07.04.2007, to provide opportunity to respondent. On 16.04.2007, respondent submitted a letter requesting adjournment on the ground that writ petition filed by him challenging proceedings was pending before this Court, which was granted. On 07.05.2007, 09.06.2007 and on 19.06.2007, it was adjourned as respondent requested adjournment. Thereafter on 23.06.2007, evidence of management was recorded and adjourned to 09.07.2007. On said date, brother-in-law of respondent appeared and sought adjournment on ground of ill- health of respondent. Said request was repeated on 12 16.07.2007 and 31.07.2007. On 10.08.2007 respondent submitted medical certificate to substantiate his ill- health, therefore enquiry was adjourned to 10.09.2007. But as respondent failed to participate, enquiry was concluded ex-parte and Enquiry Officer submitted report on 16.09.2007.
11. Elaborating delay and latches in approaching this Court, learned counsel submitted that Disciplinary Authority passed order of punishment on 04.01.2008 against which respondent preferred appeal. Appellate Authority passed order dismissing appeal on 01.07.2010 and communicated it to him. But only on 28.02.2014, respondent submitted representation for revocation of order of dismissal and for re-enquiry claiming that he was not afforded opportunity. Representation was submitted without reference to order dismissing appeal or stating that respondent was unaware of its status. In response, Appellants informed 13 him about dismissal of appeal on 01.07.2010. Thereafter, i.e. only on 23.06.2014, respondent filed writ petition challenging orders of disciplinary authority dated 04.01.2008 (Annexure - T) and order of Appellate Authority dated 01.07.2010 (Annexure - Y) belatedly. It was submitted that writ petition was filed about 6 ½ years after passing of order at Annexure - T and nearly 4 years after passing of order at Annexure - Y. Therefore, writ petition was liable to be dismissed on ground of delay and latches. In support of said proposition, learned counsel relied upon several decisions of Hon'ble Supreme Court, relevant portions of which are as follows:
In the case of P.S. Sadashivaswamy Vs. State of Tamil Nadu reported in (1975) 1 SCC 152 (para-2) "2. The main grievance of the appellant is that the second respondent who was junior to him as Assistant Engineer was promoted as Divisional Engineer in 1957 by relaxing the relevant rules regarding the length of service necessary for promotion as Divisional Engineer and that his claim for a similar relaxation was not considered at that time. The learned Judge of the Madras High Court who heard the writ petition was of 14 the view that the relaxation of the rules in favour of the second respondent without considering the appellant's case was arbitrary. In view of the statement on behalf of the Government that such relaxation was given only in the case of overseas scholars, which statement was not controverted, it is not possible to agree with the view of the learned Judge. Be that as it may, if the appellant was aggrieved by it he should have approached the Court even in the year 1957, after the two representations made by him had failed to produce any result. One cannot sleep over the matter and come to the Court questioning that relaxation in the year 1971.
There is the further fact that even after Respondents 3 and 4 were promoted as Divisional Engineers over the head of the appellant he did not come to the Court questioning it. There was a third opportunity for him to have come to the Court when Respondents 2 to 4 were again promoted as Superintending Engineers over the head of the appellant. After fourteen long years because of the tempting prospect of the Chief Engineership he has come to the Court. In effect he wants to unscramble a scrambled egg. It is very difficult for the Government to consider whether any relaxation of the rules should have been made in favour of the appellant in the year 1957. The conditions that were prevalent in 1957, cannot be reproduced now. In any case as the Government had decided as a matter of policy, as they were entitled to do, not to relax the rules in favour of any except overseas scholars it will be wholly pointless to direct them to consider the appellant's case as if nothing had happened after 1957. Not only Respondent 2 but also Respondents 3 and 4 who were the appellant's juniors became Divisional Engineers in 1957, apparently on the ground that their merits deserved their promotion over the head of the appellant. He did not question it. Nor did he question the promotion of his juniors as Superintending Engineers over his head. He could have come to the Court on every one of these three occasions. A person aggrieved by an order of promoting a junior over his head should approach the Court at least within six months or at the most a year of such promotion. It is not that there is any period of limitation for the Courts to exercise their powers under Article 226 nor is it that there can never be a case where the Courts cannot interfere in a matter after the passage of a certain length of time. But it would be a sound and wise exercise of discretion for the Courts to refuse to exercise their extraordinary powers 15 under Article 226 in the case of persons who do not approach it expeditiously for relief and who stand by and allow things to happen and then approach the Court to put forward stale claims and try to unsettle settled matters. The petitioner's petition should, therefore, have been dismissed in limine. Entertaining such petitions is a waste of time of the Court. It clogs the work of the Court and impedes the work of the Court in considering legitimate grievances as also its normal work. We consider that the High Court was right in dismissing the appellant's petition as well as the appeal."
And in Londhe Prakash Bhagawan Vs. Dattatrey Mane reported in (2013) 10 SCC 627 (para-9) "9. Even if we assume that no limitation is prescribed in any statute to file an application before the court in that case, can an aggrieved person come before the court at his sweet will at any point of time? The answer must be in the negative. If no time-limit has been prescribed in a statute to apply before the appropriate forum, in that case, he has to come before the court within a reasonable time. This Court on a number of occasions, while dealing with the matter of similar nature held that where even no limitation has been prescribed, the petition must be filed within a reasonable time. In our considered opinion, the period of 9 years and 11 months, is nothing but an inordinate delay to pursue the remedy of a person and without submitting any cogent reason therefor. The court has no power to condone the same in such case. (See Cicily Kallarackal v. Vehicle Factory [(2012) 8 SCC 524: (2012) 4 SCC (Civ) 540], State of Orissa v. Mamata Mohanty [(2011) 3 SCC 436: (2011) 2 SCC (L&S) 83] and K.R. Mudgal v. R.P. Singh [(1986) 4 SCC 531: 1987 SCC (L&S) 6].) In these cases, it has been held that the application should be rejected on the ground of inordinate delay. Furthermore, it is to be noted that appointment of the appellant was within the knowledge of Respondent 1 from day one but he did not take any step for such a long time."
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12. Based on above decisions it was contended that learned Single Judge erred in not dismissing writ petition on ground of delay and latches.
13. It was further submitted that though strict rules of evidence were not applicable to departmental enquiries and standard of proof was preponderance of probabilities, learned Single Judge erred in holding that there was no evidence on record to substantiate charges against respondent. It was submitted that in instant case, management had examined one witness namely M. Raja, Inspector of Police, ACB, who produced investigation records which were part of criminal trial. Though, said officer was not cross examined and his deposition remained unchallenged and even when respondent did not lead evidence, learned Single Judge interfered with order of disciplinary authority, as if sitting in appeal. It was submitted that as finding of disciplinary authority was based on evidence, it could 17 not be termed as perverse. In support of said proposition, learned counsel relied upon several decisions of the Hon'ble Supreme Court as follows:
K.L. Shinde Vs. State of Mysore reported in AIR 1976 SC 1080 (para -9):
"9. Regarding the appellant's contention that there was no evidence to substantiate the charge against him, it may be observed that neither the High Court nor this Court can re-examine and reassess the evidence in writ proceedings. Whether or not there is sufficient evidence against a delinquent to justify his dismissal from service is a matter on which this Court cannot embark. It may also be observed that departmental proceedings do not stand on the same footing as criminal prosecutions in which high degree of proof is required. It is true that in the instant case, reliance was placed by the Superintendent of Police on the earlier statements made by the three police constables including Akki from which they resiled but that did not vitiate the enquiry or the impugned order of dismissal, as departmental proceedings are not governed by strict rules of evidence as contained in the Evidence Act. That apart, as already stated, copies of the statements made by these constables were furnished to the appellant and he cross-examined all of them with the help of the police friend provided to him. It is also significant that Akki admitted in the course of his statement that he did make the former statement before the PSI Khadebazar Police Station, Belgaum, on November 21, 1961 (which revealed appellant's complicity in the smuggling activity) but when asked to explain as to why he made that statement, he expressed his inability to do so. The present case, is, in our opinion, covered by a decision of this Court in State of Mysore v. Shivabasappa [AIR 1963 SC 375 : (1963) 2 SCR 943] where it was held as follows:18
"Domestic tribunals exercising quasi-judicial functions are not courts and therefore, they are not bound to follow the procedure prescribed for trial of actions in courts nor are they bound by strict rules of evidence. They can, unlike courts, obtain all information, material for the points under enquiry from all sources, and through all channels, without being fettered by rules and procedures which govern proceedings in court. The only obligation which the law casts on them is that they should not act on any information which they may receive unless they put it to the party against whom it is to be used and give him a fair opportunity to explain it. What is a fair opportunity must depend on the facts and circumstances of each case, but where such an opportunity has been given, the proceedings are not open to attack on the ground that the enquiry was not conducted in accordance with the procedure followed in courts.
2. In respect of taking the evidence in an enquiry before such tribunal, the person against whom a charge is made should know the evidence which is given against him, so that he might be in a position to give his explanation. When the evidence is oral, normally the explanation of the witness will in its entirety, take place before the party charged who will have full opportunity of cross-examining him. The position is the same when a witness is called, the statement given previously by him behind the back of the party is put to him, and admitted in evidence, a copy thereof is given to the party and he is given an opportunity to cross-examine him. To require in that case that the contents of the previous statement should be repeated by the witness word by word and sentence by sentence, is to insist on bare technicalities and rules of natural justice are matters not of form but of substance. They are sufficiently complied with when previous statements given by witnesses are read over to them, marked on their admission, copies thereof given to the person charged and he is given an opportunity to cross-examine them."
(Emphasis supplied) In Bank of India Vs. Degala Suryanarayana reported in (1999) 5 SCC 762 (para-11);
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"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 findings of fact arrived at in departmental enquiry proceedings excepting in a case of mala fides or perversity i.e. where there is 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 [AIR 1964 SC 364: (1964) 4 SCR 718] the Constitution Bench has held:
"[T]he 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."
(Emphasis supplied) In State Bank of Bikaner and Jaipur Vs. Namichand Nalvaya reported in AIR 2011 SC 1931 (paras - 6, 9 and 10) "6. The Division Bench was of the view that the case was not one where the respondent had acted in wilful dereliction of duty; and that in an increasing 20 customer-friendly atmosphere in the Bank, the respondent had acted bona fide and allowed the person considered by him to be a valued customer to operate on the account not realising that such person was impersonating the account-holder. The High Court was of the view that in such circumstances, the question of loss of confidence would not arise and the punishment of dismissal was grossly disproportionate to the misconduct. Therefore, it set aside the order of dismissal and directed reinstatement with full back wages and consequential benefits. The said order is challenged in this appeal by special leave.
9. Several witnesses were examined to prove the charge. One of them was H.S. Sharma who conducted the preliminary enquiry and to whom the respondent had made a statement broadly admitting the facts which constituted the subject-matter of the second charge. I.M. Rawal, who was the cashier and I.C. Ojha, the officiating Branch Manager were also examined. Based upon their evidence, the enquiry officer found the respondent to be guilty of the second charge and that has been accepted by the disciplinary authority. The High Court has interfered with the said finding without expressly holding that the said finding of guilt was erroneous. The High Court has proceeded as if it was sitting in appeal over the departmental enquiry and interfered with the finding on a vague assumption that the respondent must have acted bona fide in an "increasing customer-friendly atmosphere". There was no justification for the Division Bench to interfere with the finding of guilt.
10. The fact that the criminal court subsequently acquitted the respondent by giving him the benefit of doubt, will not in any way render a completed disciplinary proceedings invalid nor affect the validity of the finding of guilt or consequential punishment. The standard of proof required in criminal proceedings being different from the standard of proof required in departmental enquiries, the same charges and evidence may lead to different results in the two proceedings, that is, finding of guilt in departmental proceedings and an acquittal by giving benefit of doubt in the criminal proceedings. This is more so when the departmental proceedings are more proximate to the incident, in point of time, when compared to the 21 criminal proceedings. The findings by the criminal court will have no effect on previously concluded domestic enquiry. An employee who allows the findings in the enquiry and the punishment by the disciplinary authority to attain finality by non- challenge, cannot after several years, challenge the decision on the ground that subsequently, the criminal court has acquitted him."
And Union of India Vs. P. Gunashekharan reported in AIR 2015 SC 545 (paras, 13 and 23).
"13. Under Articles 226/227 of the Constitution of India, the High Court shall not:
(i) re-appreciate the evidence;
(ii) interfere with the conclusions in the enquiry, in case the same has been conducted in accordance with law;
(iii) go into the adequacy of the evidence;
(iv) go into the reliability of the evidence;
(v) interfere, if there be some legal evidence on which findings can be based.
(vi) correct the error of fact however grave it may appear to be;
(vii) go into the proportionality of punishment unless it shocks its conscience.
xxxx xxxx xxxx
23. Thus, the finding on Charge I has attained finality. It is the punishment of dismissal on Charge I which was directed to be reconsidered by the Central Administrative Tribunal and which view was endorsed by the High Court. On that basis only, the dismissal was converted to compulsory retirement. Such findings cannot be reopened in the subsequent round of litigation at the instance of the respondent. It was only the punishment aspect that was open to challenge."
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14. Challenging finding that enquiry was conducted in violation of principles of natural justice, it was submitted that departmental enquiry commenced on 16.12.2006, was concluded on 10.09.2007 after thirteen sittings. Despite opportunity, respondent failed to participate in the same. He not only failed to cross- examine management witness, but also did not lead any defence evidence. As enquiry was conducted in accordance with law, no interference was called for. In support of said proposition, learned counsel relied upon several decisions of Hon'ble Supreme Court as follows:
In the case of Major U.R. Bhat Vs. Union of India reported in AIR 1962 SC 1344 (para -4);
"4. Counsel for the appellant submitted that serious irregularities had occurred in the procedure followed by the Enquiry Officer, that the Enquiry Officer had acted on materials which were not made available to the appellant and accordingly the appellant was deprived of a reasonable opportunity of making his defence. He also contended that the Governor-General ought before passing an order of discharge to have held a fresh enquiry at which the witnesses for the State and for the appellant were 23 examined, and after holding such an enquiry an order discharging the appellant from service could be passed. In our view, there is no substance in this contention of the appellant. The appellant declined to take part in the proceedings before the Enquiry Officer after June 9, 1947. It is true that on the representation made by the appellant the Fruit Development Adviser had made certain remarks and the appellant felt aggrieved because his representation was shown to the Fruit Development Adviser. But that did not justify the appellant in refusing to participate in the enquiry. The submission of the appellant that the Fruit Development Adviser was not examined on June 9, 1947, has no substance. It is clear from the order recorded on June 10, 1947, that the Fruit Development Adviser had been examined and cross- examined on June 9, 1947, and the enquiry was thereafter adjourned till the next day. There is contemporaneous record made by the Enquiry Officer to support that view. Even in the petition submitted by the appellant to the Governor-General in reply to the notice dated October 31, 1947, in para 2(h), the appellant stated that he had appeared before the Enquiry Officer on June 9, 1947, and the Enquiry Officer had on that day recorded the statement of the Fruit Development Adviser. It is true that the appellant in his examination before the trial court asserted that the Fruit Development Adviser had not been examined on June 9, 1947, and Sardar Bahadur Lal Singh, the Fruit Development Adviser in his evidence stated that he did not remember whether he had been examined on that day. The Enquiry Officer could not be examined at the trial because, as we are informed at the Bar, he had died before the suit was tried. The record maintained by the Enquiry Officer is however before the court. In his order, dated June 10, 1947, and his report submitted to the Minister concerned on June 11, 1947, in which he has categorically stated that the Fruit Development Adviser was examined on June 9, 1947, and it was thereafter that the appellant declined to take part in the proceedings. On June 10, 1947, two witnesses were specially kept present. As the appellant did not take part in the proceeding, the statements previously made by these witnesses were taken into consideration by the Enquiry Officer in making his report. The Enquiry Officer is not bound by the strict rules of the law of evidence and when the appellant declined to take part in the proceedings and 24 failed to remain present, it was open to the Enquiry Officer to proceed on the materials which were placed before him. We are prepared to assume that the appellant had seen the statements made by these witnesses, which were tendered, but if the appellant's ignorance of their statements is the direct result of his own non-cooperation with the proceeding before the Enquiry Officer, we are unable to hold that the Enquiry Officer can be said to have proceeded on materials to which the appellant could not have access or that the Enquiry Officer did not give to the appellant a reasonable opportunity to show cause to establish that the charges against him were unfounded. Nor is there any substance in the contention of the appellant that the Governor-General before passing the impugned order bought to have directed that witnesses he examined again in the presence of the appellant and that the appellant be afforded another opportunity to lead evidence."
K.L. Shinde (supra);
In Bank of India Vs. Apurbakumar Saha reported in (1994) 2 SCC 615 (para -4);
"4. Having regard to the arguments addressed by learned counsel on both sides we have gone through the papers and seen that the High Court's view that there was violation of principles of natural justice, in conducting the disciplinary proceedings against the respondent, was wholly unjustified. The records of the disciplinary proceedings show that the respondent had avoided filing of the written explanation for the charges of misconduct levelled against him and also had for no valid reason refused to participate in the disciplinary proceedings. A bank employee who had refused to avail of the opportunities provided to him in a disciplinary proceeding of defending himself against the charges of misconduct involving his integrity and dishonesty, cannot be permitted to complain later that he had been denied a reasonable opportunity of defending himself of the charges levelled against him and the disciplinary proceeding conducted against him 25 by the Bank-employer had resulted in violation of principles of natural justice of fair hearing."
In Board of Directors H.T.P.C Vs. K.C. Rahi reported in (2008) 11 SCC 502 (para 7 & 8);
"7. The principle of natural justice cannot be put in a straitjacket formula. Its application depends upon the facts and circumstances of each case. To sustain a complaint of non-compliance with the principle of natural justice, one must establish that he has been prejudiced thereby for non-compliance with principle of natural justice.
8. In the instant case we have been taken through various documents and also from the representation dated 19-10-1993 filed by the respondent himself it would clearly show that he knew that a departmental enquiry was initiated against him yet he chose not to participate in the enquiry proceedings at his own risk. In such event plea of principle of natural justice is deemed to have been waived and he is estopped from raising the question of non-compliance with principles of natural justice. In the representation submitted by him on 19-10-1993 the subject itself reads "DEPARTMENTAL ENQUIRIES". It is stated at the Bar that the respondent is a law graduate, therefore, he cannot take a plea of ignorance of law. Ignorance of law is no excuse much less by a person who is a law graduate himself."
In State Bank of India Vs. Hemant Kumar reported in (2011) 11 SCC 355 (paras 12 to 15) "12. We are of the view that both the reasons assigned by the Tribunal for condemning the departmental enquiry as defective are completely untenable. The principles of natural justice cannot be stretched to a point where they would render the in- house proceedings unworkable. Admittedly, the respondent had not appeared for the enquiry on two earlier dates. On the third date too he was absent and 26 there was no intimation from him before the enquiry officer, yet the Tribunal insists that it was the duty of the enquiry officer to find out from the department concerned of the bank whether any intimation or application was received from the respondent.
13. Let us take a case where the enquiry is not being held in the bank premises or even in the same town, where the branch of the bank concerned is located. In such a situation, it may take hours or even a day or two to find out whether any letter or intimation from the person facing the enquiry was received in the bank and for all that time the Enquiry Committee would remain in suspended animation. The Tribunal's observation that it was only the third date of hearing and hence, it could not be said that the respondent had adopted dilatory tactics can only be described as unfortunate.
14. We completely reject the notion that three barren dates in an in-house proceeding do not amount to delay. Let the in-house proceedings at least be conducted expeditiously and without any undue loss of time.
15. The second reason assigned by the Tribunal that the enquiry officer should have allowed the respondent the opportunity to lead evidence in rebuttal is also without substance in the overall facts of the case. The respondent had already tendered two admissions of guilt in writing and one orally before PW 1 and there was hardly anything that could be said on his behalf to repel the charges."
and C.M.D. Coal India Vs. Ananth Saha reported in (2011) 5 SCC 142 (para -24).
"24. In the instant case, proceedings were held ex- parte against the delinquent as he failed to appear in spite of notice and such a course of the enquiry officer was justified (see State of U.P. v. Saroj Kumar Sinha [(2010) 2 SCC 772: (2010) 1 SCC (L&S) 675: AIR 2010 SC 3131]). There is no averment by the delinquent that he did not receive the said notice and the copy of the enquiry report. The plea taken by the delinquent shows that he has adopted a belligerent attitude and kept the litigation alive for more than two decades merely on technical grounds. The delinquent 27 waited till the conclusion of the purported fresh enquiry initiated on 17-1-2002, even though he could have challenged the same having been initiated by a person not competent to initiate the proceedings and being in contravention of the orders passed by the High Court earlier. In such a fact situation, the High Court ought to have refused to entertain his writ petition. More so, the writ petition could not have been proceeded with and heard on merit when the statutory appeal was pending before the Board of Directors, CIL. (See Transport and Dock Workers Union v. Mumbai Port Trust [(2011) 2 SCC 575: (2011) 1 SCC (L&S) 566])"
15. In so far as finding that documentary evidence led by management was valid and reliable in departmental enquiry, learned counsel relied upon decisions of Hon'ble Supreme Court in the case of State of Tamil Nadu Vs. M. Natarajan reported in AIR 1997 SC 3120 (paras 3 and 4) "3. The admitted facts are that on 10-2-1987, the respondents misbehaved with two ladies and outraged their modesty and took them into the lock-up in the early hours, i.e., at 02.00 hours. When two persons intervened, they were beaten by them. As a consequence, an enquiry was held and a criminal case was also instituted against the respondents. When they were asked to appear before the Enquiry Officer, they failed to appear in spite of several opportunities given to them. As a result, the Enquiry Officer was constrained to record the findings and recommend imposition of the punishment of stoppage of three increments with cumulative effect. After the receipt of the report, the disciplinary authority had issued notices to the respondents as to why major penalty should not be given to the respondents. The respondents asked for opportunity to cross-examine the witnesses and sought fresh enquiry on the ground 28 that by that date the criminal case filed against the respondents was withdrawn. The competent authority declined to accede to the request and imposed the punishment of removal from service. Feeling aggrieved, they filed OAs in the Tribunal. The Tribunal allowed the OAs on the ground that the disciplinary authority did not consider the evidence to justify the finding of proof of charges and violated the principles of natural justice. We find that the Tribunal was not justified in reaching the conclusion for the reason that the Tribunal itself has categorically recorded findings at pp. 8-10 as under:
"The applicants were asked to appear before the Enquiry Officer, but, they wrote to him saying that since the criminal case was proceeding against them in a criminal court they would suggest that the departmental proceedings might be postponed till the disposal of the criminal proceedings. The Enquiry Officer was right in holding the view that there was no bar for departmental proceedings to go while the criminal proceedings were being conducted at the appropriate forum. The applicants had chosen not to participate in the departmental proceedings because of the reason that the criminal proceedings and the departmental proceedings should not go simultaneously. Though ignorance of law is not an excuse, the Enquiry Officer should have taken some steps to convince the applicants of the settled principle of law that both the criminal and departmental proceedings could go simultaneously and advised them to participate in the enquiry. But the applicants did not yield and only after the criminal case was withdrawn against them, they chose to appear before the authorities concerned for the enquiry. The Enquiry Officer did not wait for the stage to materialise and he passed his ex parte findings. The applicants refused to appear for the oral enquiry in spite of several opportunities given to them. Therefore, it was decided to examine the prosecution witnesses in the absence of the applicants. After the examination of PWs the applicants were directed to appear to cross-examine the prosecution witnesses if they so desired. Even then they did not appear. Therefore, the enquiry was treated as closed after examining the prosecution witnesses and a finding was arrived at based on the materials available with the prosecution side. The applicants were even asked to submit their list of witnesses to be 29 examined as defence witnesses, but they did not submit the same and they were also asked to submit their written statement of defence if they desired, but they did not do that also. Finally, the applicants wrote saying that they submitted their representation to the Superintendent of Police and he replied and after receiving the reply from the Superintendent of Police, a representation for the change of Enquiry Officer was turned down by the Superintendent of Police. Finally, enquiry was closed and ex parte minute was prepared. Based on the findings of the Enquiry Officer's report in both the cases, the Superintendent of Police awarded the punishment of reduction in time scale of pay for three years with cumulative effect to the applicant in OA No. 3804 of 1991 and removed the applicant in OA No. 3805 of 1991 from service."
4. In view of these findings, we think that no procedural illegalities were committed in conducting the enquiry. The question is: What punishment should be awarded to the respondents? The Enquiry Officer himself has recommended to impose penalty of stoppage of three increments with cumulative effect. We find that the Enquiry Officer was justified. On the facts and circumstances of the case, we set aside the order of the removal from service. Instead, the disciplinary authority is directed to impose the punishment of stoppage of four increments with cumulative effect."
And Kuldeep Singh Vs. State of Punjab reported in (1996) 10 SCC 659 (para -11).
"11. In this sense, if the appellant's confession is relevant, the fact that it was made to the police or while in the custody of the police may not be of much consequence for the reason that strict rules of Evidence Act do not apply to departmental/disciplinary enquiries. In a departmental enquiry, it would perhaps be permissible for the authorities to prove that the appellant did make such a confession/admission during the course of interrogation and it would be for the disciplinary authority to decide whether it is a voluntary confession/admission or not. If the disciplinary authority comes to the conclusion that the statement 30 was indeed voluntary and true, he may well be entitled to act upon the said statement. Here, the authorities say that they were satisfied about the truth of the appellant's confession. There is undoubtedly no other material. There is also the fact that the appellant has been acquitted by the Designated Court. We must say that the facts of this case did present us with a difficult choice. The fact, however, remains that the High Court has opined that there was enough material before the appropriate authority upon which it could come to a reasonable conclusion that it was not reasonably practicable to hold an enquiry as contemplated by clause (2) of Article 311. Nothing has been brought to our notice to persuade us not to accept the said finding of the High Court. Even a copy of the counter filed by the respondents in the High Court is not placed before us. Once proviso (b) is held to have been validly invoked, the government servant concerned is left with no legitimate ground to impugn the action except perhaps to say that the facts said to have been found against him do not warrant the punishment actually awarded. So far as the present case is concerned, if one believes that the confession made by the appellant was voluntary and true, the punishment awarded cannot be said to be excessive. The appellant along with some others caused the death of the Superintendent of Police and a few other police officials. It must be remembered that we are dealing with a situation obtaining in Punjab during the years 1990-91. Moreover, the appellate authority has also agreed with the disciplinary authority that there were good grounds for coming to the conclusion that it was not reasonably practicable to hold a disciplinary enquiry against the appellant and that the appellant was guilty of the crime confessed by him. There is no allegation of mala fides levelled against the appellate authority. The disciplinary and the appellate authorities are the men on the spot and we have no reason to believe that their decision has not been arrived at fairly. The High Court is also satisfied with the reasons for which the disciplinary enquiry was dispensed with. In the face of all these circumstances, it is not possible for us to take a different view at this stage. It is not permissible for us to go into the question whether the confession made by the appellant is voluntary or not, once it has been accepted as voluntary by the disciplinary authority and the appellate authority."31
16. Challenging conclusion of learned Single Judge that acquittal of respondent in criminal case would discharge him even in departmental proceedings, it was submitted that said reason apart from being illegal was also factually incorrect. It was submitted that enquiry report in instant case was submitted on 16.09.2007 and order of disciplinary authority came to be passed on 04.01.2008. But judgment of acquittal in Spl. C.C. 183/2004 came to be passed only on 31.07.2017. Therefore, subsequent acquittal of respondent would be of no consequence. It was further submitted that Criminal Court rejected Charge Sheet filed by CBI on technical grounds before trial and therefore discharge without trial cannot be treated as honourable acquittal. It was also contended that standard of proof in departmental proceedings and in criminal trial being different, acquittal in criminal case would not lead to acquittal in departmental proceedings. 32 In support of said proposition, learned counsel relied upon decisions of Hon'ble Supreme Court in the case of Lalith Popli Vs. Canara Bank reported in AIR 2003 SC 1796 = 2003 (3) SCC 583 (para -16);
"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 [(1996) 6 SCC 417: 1996 SCC (L&S) 1455]) 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."
In Deputy IGP Vs. S. Samuthiram reported in AIR 2013 SC 14 (para 16, 19, 20, 21, 23 to 25) "16. The Superintendent of Police, Tirunelveli concurred with findings of enquiry officer and held that charges were clearly proved beyond reasonable doubt. It was held that respondent being a member of a disciplined force should not have behaved in a disorderly manner and that too in a drunken state, in a public place, and misbehaved with a married woman. It was held that the said conduct of respondent would undermine morale of police force, consequently, the Superintendent of Police awarded punishment of dismissal from service on the respondent, vide its proceeding dated 4-1-2000. The 33 respondent then filed an appeal before the Inspector General of Police, which was rejected vide his proceeding dated 10-3-2000. The respondent then filed an application in OA No. 1144 of 2000 before the Tamil Nadu Administrative Tribunal. While the OA was pending, the delinquent was acquitted of the criminal charges.
19. The propositions which the respondent wanted to canvass placing reliance on the judgment in M. Paul Anthony case [M. Paul Anthony v. Bharat Gold Mines Ltd., (1999) 3 SCC 679: 1999 SCC (L&S) 810] read as follows: (SCC p. 691, para 20) "(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 charge-sheet.
(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."
34"20. This Court in Southern Railway Officers Assn. v. Union of India [(2009) 9 SCC 24: (2009) 2 SCC (L&S) 552] held that acquittal in a criminal case by itself cannot be a ground for interfering with an order of punishment imposed by the disciplinary authority. The Court reiterated that the order of dismissal can be passed even if the delinquent officer had been acquitted of the criminal charge.
21. In State Bank of Hyderabad v. P. Kata Rao [(2008) 15 SCC 657: (2009) 2 SCC (L&S) 489] (SCC p. 662, para 18) this Court held that there cannot be any doubt whatsoever that the jurisdiction of the superior courts in interfering with the finding of fact arrived at by the enquiring officer is limited and that the High Court would also ordinarily not interfere with the quantum of punishment and there cannot be any doubt or dispute that only because the delinquent employee who was also facing a criminal charge stands acquitted, the same, by itself, would not debar the disciplinary authority in initiating a fresh departmental proceeding and/or where the departmental proceedings had already been initiated, to continue therewith. In that judgment, this Court further held as follows: (SCC p. 662, para 20) "20. The legal principle enunciated to the effect that on the same set of facts the delinquent shall not be proceeded in a departmental proceedings and in a criminal case simultaneously, has, however, been deviated from. The dicta of this Court in M. Paul Anthony v. Bharat Gold Mines Ltd. [M. Paul Anthony v. Bharat Gold Mines Ltd., (1999) 3 SCC 679:
1999 SCC (L&S) 810] however, remains unshaken although the applicability thereof had been found to be dependent on the fact situation obtaining in each case."
23. We are of the view that the mere acquittal of an employee by a criminal court has no impact on the disciplinary proceedings initiated by the Department.
The respondent, it may be noted, is a member of a disciplined force and non-examination of two key witnesses before the criminal court that is Adiyodi and Peter, in our view, was a serious flaw in the conduct of the criminal case by the prosecution. Considering the facts and circumstances of the case, the possibility of winning over PWs 1 and 2 in the criminal case cannot be ruled out. We fail to see, why the prosecution had 35 not examined Head Constable Adiyodi (No. 1368) and Peter (No. 1079) of Tenkasi Police Station. It was these two Head Constables who took the respondent from the scene of occurrence along with PWs 1 and 2, husband and wife, to Tenkasi Police Station and it is in their presence that the complaint was registered. In fact, the criminal court has also opined that the signature of PW 1 (complainant husband) is found in Ext. P-1 complaint. Further, the doctor, PW 8 has also clearly stated before the enquiry officer that the respondent was under the influence of liquor and that he had refused to undergo blood and urine tests. That being the factual situation, we are of the view that the respondent was not honourably acquitted by the criminal court, but only due to the fact that PW 1 and PW 2 turned hostile and other prosecution witnesses were not examined.
24. The meaning of the expression "honourable acquittal" came up for consideration before this Court in RBI v. Bhopal Singh Panchal [(1994) 1 SCC 541:
1994 SCC (L&S) 594: (1994) 26 ATC 619]. In that case, this Court has considered the impact of Regulation 46(4) dealing with honourable acquittal by a criminal court on the disciplinary proceedings. In that context, this Court held that the mere acquittal does not entitle an employee to reinstatement in service, the acquittal, it was held, has to be honourable. The expressions "honourable acquittal", "acquitted of blame", "fully exonerated" are unknown to the Code of Criminal Procedure or the Penal Code, which are coined by judicial pronouncements. It is difficult to define precisely what is meant by the expression "honourably acquitted". When the accused is acquitted after full consideration of prosecution evidence and that the prosecution had miserably failed to prove the charges levelled against the accused, it can possibly be said that the accused was honourably acquitted.
25. In R.P. Kapur v. Union of India [AIR 1964 SC 787] it was held that even in the case of acquittal, departmental proceedings may follow where the acquittal is other than honourable. In State of Assam v. Raghava Rajgopalachari [1972 SLR 44 (SC)] this Court quoted with approval the views expressed by Lord Williams, J. in Robert Stuart Wauchope v. Emperor [ILR (1934) 61 Cal 168] which is as follows: (Raghava case [1972 SLR 44 (SC)], SLR p. 47, para 8) 36 "8. ... 'The expression "honourably acquitted" is one which is unknown to courts of justice. Apparently, it is a form of order used in courts martial and other extrajudicial tribunals. We said in our judgment that we accepted the explanation given by the appellant, believed it to be true and considered that it ought to have been accepted by government authorities and by the Magistrate. Further, we decided that appellant had not misappropriated the monies referred to in the charge. It is thus clear that effect of our judgment was that appellant was acquitted as fully and completely as it was possible for him to be acquitted. Presumably, this is equivalent to what government authorities term "honourably acquitted"." (Robert Stuart case [ILR (1934) 61 Cal 168], ILR pp. 188-89)"
And KPTCL Vs. C. Nagaraju reported in (2019) 10 SCC 367 (para 9, 10 & 13).
"9. Acquittal by a criminal court would not debar an employer from exercising the power to conduct departmental proceedings in accordance with the rules and regulations. The two proceedings, criminal and departmental, are entirely different. They operate in different fields and have different objectives. [Ajit Kumar Nag v. Indian Oil Corpn. Ltd., (2005) 7 SCC 764:
2005 SCC (L&S) 1020] In the disciplinary proceedings, the question is whether the respondent is guilty of such conduct as would merit his removal from service or a lesser punishment, as the case may be, whereas in the criminal proceedings, the question is whether the offences registered against him under the PC Act are established, and if established, what sentence should be imposed upon him. The standard of proof, the mode of inquiry and the rules governing inquiry and trial in both the cases are significantly distinct and different. [State of Rajasthan v. B.K. Meena, (1996) 6 SCC 417: 1996 SCC (L&S) 1455]
10. As the High Court set aside the order of dismissal on the basis of the judgments of this Court in M. Paul Anthony [M. Paul Anthony v. Bharat Gold Mines Ltd., (1999) 3 SCC 679: 1999 SCC (L&S) 810] and G.M. Tank [G.M. Tank v. State of Gujarat, (2006) 5 SCC 446: 2006 SCC (L&S) 1121], it is necessary to 37 examine whether the said judgments are applicable to the facts of this case. Simultaneous continuance of departmental proceedings and proceedings in a criminal case on the same set of facts was the point considered by this Court in M. Paul Anthony case [M. Paul Anthony v. Bharat Gold Mines Ltd., (1999) 3 SCC 679: 1999 SCC (L&S) 810]. This Court was of the opinion that departmental proceedings and proceedings in a criminal case can proceed simultaneously as there is no bar. However, it is desirable to stay departmental inquiry till conclusion of the criminal case if the departmental proceedings and 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. On the facts of the said case, it was found that the criminal case and the departmental proceedings were based on identical set of facts and the evidence before the criminal court and the departmental inquiry was the same. Further, in the said case the departmental inquiry was conducted ex-parte. In such circumstances, this Court held that the ex-parte departmental proceedings cannot be permitted to stand in view of the acquittal of the delinquent by the criminal court on the same set of facts and evidence. The said judgment is not applicable to the facts of this case. In the present case, the prosecution witnesses turned hostile in the criminal trial against Respondent
1. He was acquitted by the criminal court on the ground that the prosecution could not produce any credible evidence to prove the charge. On the other hand, the complainant and the other witnesses appeared before the inquiry officer and deposed against Respondent 1. The evidence available in the departmental inquiry is completely different from that led by the prosecution in criminal trial.
13. Having considered the submissions made on behalf of the appellant and Respondent 1, we are of the view that interference with the order of dismissal by the High Court was unwarranted. It is settled law that the acquittal by a criminal court does not preclude a departmental inquiry against the delinquent officer. The disciplinary authority is not bound by the judgment of the criminal court if the evidence that is produced in the departmental inquiry is different from that produced during the criminal trial. The object of a departmental inquiry is to find out 38 whether the delinquent is guilty of misconduct under the conduct rules for the purpose of determining whether he should be continued in service. The standard of proof in a departmental inquiry is not strictly based on the rules of evidence. The order of dismissal which is based on the evidence before the inquiry officer in the disciplinary proceedings, which is different from the evidence available to the criminal court, is justified and needed no interference by the High Court."
17. Without prejudice to above contentions, learned counsel for appellant submitted in alternative that where departmental enquiry was found fault with for violation of principles of natural justice, it would be proper to have reserved liberty to management to conduct enquiry afresh, instead of directing reinstatement of respondent with full back-wages and all consequential benefits. In support of said proposition, learned counsel relied upon decision of Hon'ble Supreme Court in the case of Managing Director ECIL Vs. B. Karunakar reported in (1993) 4 SCC 727 (para -31).
"31. Hence, in all cases where the enquiry officer's report is not furnished to the delinquent employee in the disciplinary proceedings, the Courts and Tribunals should cause the copy of the report to be furnished to the aggrieved employee if he has not already secured it 39 before coming to the Court/Tribunal and give the employee an opportunity to show how his or her case was prejudiced because of the non-supply of the report. If after hearing the parties, the Court/Tribunal comes to the conclusion that the non-supply of the report would have made no difference to the ultimate findings and the punishment given, the Court/Tribunal should not interfere with the order of punishment. The Court/Tribunal should not mechanically set aside the order of punishment on the ground that the report was not furnished as is regrettably being done at present. The courts should avoid resorting to short cuts. Since it is the Courts/Tribunals which will apply their judicial mind to the question and give their reasons for setting aside or not setting aside the order of punishment, (and not any internal appellate or revisional authority), there would be neither a breach of the principles of natural justice nor a denial of the reasonable opportunity. It is only if the Court/Tribunal finds that the furnishing of the report would have made a difference to the result in the case that it should set aside the order of punishment. Where after following the above procedure, the Court/Tribunal sets aside the order of punishment, the proper relief that should be granted is to direct reinstatement of the employee with liberty to the authority/management to proceed with the inquiry, by placing the employee under suspension and continuing the inquiry from the stage of furnishing him with the report. The question whether the employee would be entitled to the back-wages and other benefits from the date of his dismissal to the date of his reinstatement if ultimately ordered, should invariably be left to be decided by the authority concerned according to law, after the culmination of the proceedings and depending on the final outcome. If the employee succeeds in the fresh inquiry and is directed to be reinstated, the authority should be at liberty to decide according to law how it will treat the period from the date of dismissal till the reinstatement and to what benefits, if any and the extent of the benefits, he will be entitled. The reinstatement made as a result of the setting aside of the inquiry for failure to furnish the report, should be treated as a reinstatement for the purpose of holding the fresh inquiry from the stage of furnishing the report and no more, where such fresh inquiry is held. That will also be the correct position in law."40
18. On the other hand, Sri. K. Subbarao, learned Senior Counsel appearing for Sri Satheesha K.N. advocate for respondent submitted that respondent joined services of appellant no.1 as an Engineer in Aircraft Division on 29.01.1991. After securing promotion from time to time, he was working as Deputy Manager (Shops), Foundry and Forge Division, when he was sanctioned sabbatical for a period of 1 ½ years to complete his Ph.D. at Indian Institute of Science, Bengaluru (under order dated 9.09.2003). He was paid salary for said period. When he was about to submit his thesis for approval, he was issued with four Articles of charges and was kept under suspension. The first Articles of charges dated 12/23.11.2004 contained imputations of misconducts for which he was also prosecuted for offences punishable under Sections 120B of Indian Penal Code and Sections 7, 8 and 13 (2) read with Section 13 (1) (d) of Prevention of Corruption Act, 1988, in Spl.C.C.No.183/2004, along with 41 Sri. Kuttiparambil, Sri. Parameshwaran and Sri. Masilamani. The enquiry however, was abandoned after examination of some witnesses by management, when Sri. Senthil Kumar, the complainant failed to identify respondent. Even before Sessions Judge, Sri Senthil Kumar had stated that he was unable to identify respondent.
19. It was submitted that on 25.02.2006, management issued second Articles of charges alleging that respondent possessed assets disproportionate to his known sources of income. In respect of said charges also, he was prosecuted in C.C.No.151/2005 on the file of XXXII Additional City Civil and Sessions Judge and Special Judge for CBI cases, Bengaluru. In the said case, he was honourably acquitted vide judgment dated 30.01.2016. Even second Articles of charge was abandoned. Thereafter, respondent issued with third and fourth Articles of charges dated 21.06.2006. Even 42 third Articles of charges (Annexure - G) was not pursued and no enquiry was conducted.
20. Learned Senior Counsel submitted that charge in fourth Articles of charges (Annexure - N) was that he had by corrupt means in connivance with Sri Masilamani and abusing his position had demanded through Sri M.P. Shivshankar (an accomplice of his) from Sri Vemula Madhukar, a sum of Rs.2.00 lakhs other than legal remuneration as a motive for securing appointment of Sri Vemula Madhukar as Executive Trainee (Technical). It was also alleged that in pursuance of the same, respondent had on 17.11.2003 demanded and accepted Rs.40,000/- as illegal gratification. In respect of charge, CBI had filed application under Section 218 of Cr.P.C. for supplementary and additional charge sheet against accused nos.4 and 5. The said application came to be 43 dismissed vide order dated 21.11.2015 (Annexure - Z1). Consequently, the respondent herein was discharged.
21. Learned Senior Counsel further submitted that Articles of charges (Annexure - N) was issued along with list of documents (Annexure - II) and list of witnesses (Annexure - III) as below:
List of documents (Annexure - II) Sl. Documents Appendix No. 1 Copy of Bio-Data of Sri. Vemula Madhukar A 2 Copy of offer of appointment dated 21.11.2003 B signed by Sri. M. Masilamani addressed to Sri. Vemula Madhukar 3 Copy of complaint lodged with CBI, ACB C Bangalore by Sri. Senthil Kumar on 13.12.2003 4 Copy of mahazar drawn in shopping complex at D Marathahalli, Bangalore and at CBI Office on 13.12.2003 5 Copy of report of Chemical Examiner, E Government of Karnataka, Bangalore 6 Four SBI, HAL branch, Bangalore pay-in-slip F counter foils for cash deposits in SB A/c No.22087 of A-3 by A-1 -
1) dated 02.06.2003 for Rs.6,000/-
2) dated 21.07.2003 for Rs.3,000/-
3) dated 12.08.2003 for Rs.50,000/-
4) dated 24.11.2003 for Rs.20,000/-44
List of Witnesses (Annexure - III) Sl. No. Name and address of witnesses 1 Sri. M. S. Anila Kumar, Senior Manager (Personnel and Administration), Helicopter Division, Hindustan Aeronautics Ltd., Bangalore Airport Road 2 Sri. M. Rajagopala Reddy, Manager (Personnel) in Helicopter Division, Hindustan Aeronautics Ltd., Bangalore Airport Road 3 Sri. B. R. Babu, Job Contractor, Labour in Receipt and Dispatch Section in Helicopter Division, Hindustan Aeronautics Ltd., Bangalore Airport Road 4 Sri. R. Mohan, Senior Assistant Supervisor in Receipt and Dispatch Section in Helicopter Division, Hindustan Aeronautics Ltd., Bangalore Airport Road 5 Sri. Vemula Madhukar, S/o. V. Sambaiah, Door No.2-2- 81, Budidhagadda Basti, Kothagudam, Khammam District, Andhra Pradesh.
6 Representative(s) from CBI, independent witnesses to trap.
22. It was submitted that respondent submitted reply dated 31.07.2006 (Annexure - P), not only denying charges as baseless but also alleging malafide and victimization. The management proceeded to hold departmental enquiry. The enquiry proceedings were concluded in thirteen sittings. It is recorded that enquiry was adjourned on first three sittings due to absence of respondent. On the fourth sitting, respondent informed Enquiry Officer that he had filed 45 two writ petitions which were pending before High Court of Karnataka and sought adjournment of departmental proceedings till disposal of writ petitions or for three weeks, he had also submitted a letter to disciplinary authority, on 07.04.2007. Considering said request enquiry was adjourned to 07.05.2007. On said date, Presenting Officer produced copy of Articles of charge dated 21.06.2006, which was taken on record as Ex.P.1, though respondent sought time to compare and confirm its contents. Likewise copy of reply filed by respondent was marked as Ex.P.2, copy of letter of respondent dated 07.04.2007 was marked as Ex.D.1 and copy of reply of disciplinary authority to said letter was marked as Ex.P.3. Thereafter, respondent submitted one more letter requesting adjournment of proceedings till hearing of his writ petitions and also expressing his inability to participate in enquiry as relevant documents were handed over to his counsel, who was not available due to Court vacation. On such request, enquiry was 46 adjourned to 09.07.2007. On the sixth sitting, Presenting Officer sought time to produce witnesses. On seventh sitting, enquiry was adjourned considering request of respondent. On the eighth sitting, turning down request of respondent for adjournment, Enquiry Officer proceeding with enquiry. The Presenting Officer produced Sri M. Raja, Inspector of Police, ACB, CBI as his first witness, who deposed as follows:
"PW-1: My name is M. Raja working as Inspector of Police in CBI, Anti-Corruption Branch, Bangalore since July 2003. The present case R.C.29(A)/2003 has been entrusted to me for investigation by S.P. ACB, CBI Bengaluru. I have investigated the case and I have submitted the report. Now I am producing my statement duly signed by me today before the committee along with relevant reports pertaining to the case. I conclude my statement and I offer myself for cross examination."
23. The Enquiry Officer took original statement of PW-1 and marked it as Ex.P.4 (four sheets) (along with nine enclosures), without providing copies to respondent. Thereafter, respondent was called upon to 47 cross-examine PW-1 and proceedings were adjourned, when respondent sought time. The ninth, tenth and eleventh sittings were adjourned, since respondent was unable to attend due to ill-health. In the twelfth sitting, respondent appeared and produced medical certificate about his ill-health and advise for rest. Therefore, enquiry was adjourned. On thirteenth sitting, when respondent was still unable to attend, due to ill-health, Enquiry Officer concluded enquiry, without providing adequate opportunity. Thereafter, Enquiry Officer submitted his report on 16.09.2007. Learned Senior Counsel submitted that above manner indicated that proceedings were nothing but farce of an enquiry, held in complete violation of law and principles of natural justice. It was submitted that as neither manner of recording evidence was lawful nor what was recorded constituted evidence, but Enquiry Officer mechanically submitted report upholding charges.
48
24. Replying to contention regarding delay and latches in filing writ petition, learned senior Counsel submitted that challenging order of disciplinary authority dated 04.01.2008, respondent had filed appeal. The Appellate Authority did not inform him about result of appeal. Only when respondent filed representation on 28.02.2014 (Annexure - X), appellants sent reply annexing copy of order dated 01.07.2010 passed by Appellate Authority rejecting his appeal. It was submitted that even along with said reply, appellants did not either disclose mode of communication of order dated 01.07.2010 nor produced any acknowledgement or receipt. Immediately after receipt of reply, respondent filed writ petition. Therefore, there was no delay or latches in approaching this Court. In support of his submission, learned Senior Counsel relied upon several decisions of Hon'ble Supreme Court as follows:
49
In the case of Assistant Transport Commissioner, Lucknow and others Vs. Nand Singh reported in AIR 1980 SC 15 (para 2);
"2. In our opinion, the judgment of the High Court is right and cannot be interfered with by this Court. Apart from the reasons given by this Court in the earlier judgment to the effect that the order must be made known either directly or constructively to the party affected by the order in order to enable him to prefer an appeal if he so likes, we may give one more reason in our judgment and that is this: It is plain that mere writing an order in the file kept in the office of the Taxation Officer is no order in the eye of law in the sense of affecting the rights of the parties for whom the order is meant. The order must be communicated either directly or constructively in the sense of making it known, which may make it possible for the authority to say that the party affected must be deemed to have known the order. In a given case, the date of putting the order in communication under certain circumstances may be taken to be the date of the communication of the order or the date of the order but ordinarily and generally speaking, the order would be effective against the person affected by it only when it comes to his knowledge either directly or constructively, otherwise not. On the facts stated in the judgment of the High Court, it is clear that the respondent had no means to know about the order of the Taxation Officer rejecting his prayer until and unless he received his letter on October 29, 1964. Within the meaning of Section 15 of the U.P. Motor Vehicle Taxation Act that was the date of the order which gave the starting point for preferring an appeal within 30 days of that date."
In Union of India Vs. Dinanath Shantharam Karekar reported in AIR 1980 SC 2722 (para -9);
"9. Where the services are terminated, the status of the delinquent as a government servant comes to an 50 end and nothing further remains to be done in the matter. But if the order is passed and merely kept in the file, it would not be treated to be an order terminating services nor shall the said order be deemed to have been communicated."
In Ashok Kumar Vs. State of Bihar reported in (2008) 8 SCC 445 (paras 3 and 4) "3. On grant of leave, we have heard the learned counsel for the parties. Having heard the learned counsel for the parties and after examining the orders of the High Court viz. the order of the Division Bench impugned in this appeal and the order of the learned Single Judge, we are of the view that the Division Bench as well as the learned Single Judge of the High Court were not justified in rejecting the writ petition as well as the writ appeal on the ground of delay and laches as the writ petitioner i.e. the appellant had moved the writ petition before the High Court against the decision of the State Government only in 1996 i.e. after 4 years from the date of passing of such order. The Division Bench as well as the learned Single Judge, in our view, had committed an error in holding that the pendency of the review/representation of the appellant-writ petitioner could not be taken to be a ground for condoning the delay after 4 years of the decision of the State Government.
4. In our view, the High Court had fallen into error in not holding that the appellant had sufficiently explained why the writ petition could not be moved or why it was moved after 4 years of the decision of the State Government. Since the appellant had filed a representation/review of the decision of the State Government, it was expected by him that an order should be passed on the said representation/review. Therefore, in our view, the delay in moving the writ application against the decision of the State Government was sufficiently explained by the appellant and, therefore, the writ petition ought not to have been dismissed on the ground of delay and laches. Accordingly, we set aside the impugned orders of the Division Bench as well as of the learned Single Judge."
51And Collector, Land Acquisition Vs. Mst. Katiji and others reported in AIR 1987 SC 1353 (para 3).
"3. The legislature has conferred the power to condone delay by enacting Section 5 [ Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period if the appellant or the applicant satisfies the court that he had sufficient cause for not preferring the appeal or making the application within such period.] of the Indian Limitation Act of 1963 in order to enable the courts to do substantial justice to parties by disposing of matters on "merits". The expression "sufficient cause" employed by the legislature is adequately elastic to enable the courts to apply the law in a meaningful manner which subserves the ends of justice -- that being the life-purpose for the existence of the institution of courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters instituted in this Court. But the message does not appear to have percolated down to all the other courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that:
"1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.
2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.
3. "Every day's delay must be explained" does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay? The doctrine must be applied in a rational common sense pragmatic manner.
4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.52
5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.
6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.
Making a justice-oriented approach from this perspective, there was sufficient cause for condoning the delay in the institution of the appeal. The fact that it was the "State" which was seeking condonation and not a private party was altogether irrelevant. The doctrine of equality before law demands that all litigants, including the State as a litigant, are accorded the same treatment and the law is administered in an even-handed manner. There is no warrant for according a step-motherly treatment when the "State"
is the applicant praying for condonation of delay. In fact experience shows that on account of an impersonal machinery (no one in charge of the matter is directly hit or hurt by the judgment sought to be subjected to appeal) and the inherited bureaucratic methodology imbued with the note-making, file- pushing and passing-on-the-buck ethos, delay on its part is less difficult to understand though more difficult to approve. In any event, the State which represents the collective cause of the community, does not deserve a litigant-non-grata status. The courts therefore have to be informed with the spirit and philosophy of the provision in the course of the interpretation of the expression "sufficient cause". So also the same approach has to be evidenced in its application to matters at hand with the end in view to do even-handed justice on merits in preference to the approach which scuttles a decision on merits. Turning to the facts of the matter giving rise to the present appeal, we are satisfied that sufficient cause exists for the delay. The order of the High Court dismissing the appeal before it as time-barred, is therefore, set aside. Delay is condoned. And the matter is remitted to the High Court. The High Court will now dispose of the appeal on merits after affording reasonable opportunity of hearing to both the sides." 53
25. Insofar as, contention regarding honourable acquittal, it was submitted that though prosecution case against respondent did not end in acquittal, in fact, it was a case of discharge before trial, which was much worse than an acquittal after trial as even a prima facie case for trial was not made out against respondent. In support of his submission that even subsequent acquittal would inure to respondent, learned Senior Counsel relied upon decision of Hon'ble Supreme Court as follows:
In the case of G.M. Tank Vs. State of Gujarat reported in AIR 2006 SCW 2709 = 2006 (5) SCC 446 (paras 30 and 31);
"30. The judgments relied on by the learned counsel appearing for the respondents are distinguishable on facts and on law. In this case, the departmental proceedings and the criminal case are based on identical and similar set of facts and the charge in a departmental case against the appellant and the charge before the criminal court are one and the same. It is true that the nature of charge in the departmental proceedings and in the criminal case is grave. The nature of the case launched against the appellant on the basis of evidence and material collected against him during enquiry and investigation and as reflected in the charge-sheet, factors mentioned 54 are one and the same. In other words, charges, evidence, witnesses and circumstances are one and the same. In the present case, criminal and departmental proceedings have already noticed or granted on the same set of facts, namely, raid conducted at the appellant's residence, recovery of articles therefrom. The Investigating Officer Mr V.B. Raval and other departmental witnesses were the only witnesses examined by the enquiry officer who by relying upon their statement came to the conclusion that the charges were established against the appellant. The same witnesses were examined in the criminal case and the criminal court on the examination came to the conclusion that the prosecution has not proved the guilt alleged against the appellant beyond any reasonable doubt and acquitted the appellant by its judicial pronouncement with the finding that the charge has not been proved. It is also to be noticed that the judicial pronouncement was made after a regular trial and on hot contest. Under these circumstances, it would be unjust and unfair and rather oppressive to allow the findings recorded in the departmental proceedings to stand.
31. In our opinion, such facts and evidence in the departmental as well as criminal proceedings were the same without there being any iota of difference, the appellant should succeed. The distinction which is usually proved between the departmental and criminal proceedings on the basis of the approach and burden of proof would not be applicable in the instant case. Though the finding recorded in the domestic enquiry was found to be valid by the courts below, when there was an honourable acquittal of the employee during the pendency of the proceedings challenging the dismissal, the same requires to be taken note of and the decision in Paul Anthony case [(1999) 3 SCC 679: 1999 SCC (L&S) 810] will apply. We, therefore, hold that the appeal filed by the appellant deserves to be allowed."
In Capt. M. Paul Anthony Vs. B.G.M.L. reported in (1999) 3 SCC 679 (paras 13, 14, 15 and 34) 55 "13. As we shall presently see, there is a consensus of judicial opinion amongst the High Courts whose decisions we do not intend to refer to in this case, and the various pronouncements of this Court, which shall be copiously referred to, on the basic principle that proceedings in a criminal case and the departmental proceedings can proceed simultaneously with a little exception. As we understand, the basis for this proposition is that proceedings in a criminal case and departmental proceedings operate in distinct and different jurisdictional areas. Whereas in the departmental proceedings, where a charge relating to misconduct is being investigated, the factors operating in the mind of disciplinary authority may be many such as enforcement of discipline or to investigate the level of integrity of delinquent or other staff, the standard of proof required in those proceedings is also different than that required in a criminal case. While in the departmental proceedings the standard of proof is one of preponderance of probabilities, in a criminal case, the charge has to be proved by prosecution is beyond reasonable doubt. The little exception may be where departmental proceedings and criminal case are based on same set of facts and evidence in both proceedings is common without there being a variance.
14. The first decision of this Court on the question was rendered in Delhi Cloth & General Mills Ltd. v. Kushal Bhan [AIR 1960 SC 806: (1960) 3 SCR 227: (1960) 1 LLJ 520] in which it was observed as under:
"It is true that very often employers stay enquiries pending the decision of the criminal trial courts and that is fair; but we cannot say that principles of natural justice require that an employer must wait for the decision at least of the criminal trial court before taking action against an employee. In Bimal Kanta Mukherjee v. Newsman's Printing Works [1956 LAC 188] this was the view taken by the Labour Appellate Tribunal. We may, however, add that if the case is of a grave nature or involves questions of fact or law, which are not simple, it would be advisable for the employer to await the decision of the trial court, so that the defence of the employee in the criminal case may not be prejudiced."56
"15. This was followed by Tata Oil Mills Co. Ltd. v. Workmen [AIR 1965 SC 155: (1964) 7 SCR 555:
(1964) 2 LLJ 113] in which it was, inter alia, laid down as under:
"There is yet another point which remains to be considered. The Industrial Tribunal appears to have taken the view that since criminal proceedings had been started against Raghavan, the domestic enquiry should have been stayed pending the final disposal of the said criminal proceedings. As this Court has held in Delhi Cloth and General Mills Ltd. v. Kushal Bhan [AIR 1960 SC 806: (1960) 3 SCR 227: (1960) 1 LLJ 520] it is desirable that if the incident giving rise to a charge framed against a workman in a domestic enquiry is being tried in a criminal court, the employer should stay the domestic enquiry pending the final disposal of the criminal case."
34. There is yet another reason for discarding the whole of the case of the respondents. As pointed out earlier, the criminal case as also the departmental proceedings were based on identical set of facts, namely, "the raid conducted at the appellant's residence and recovery of incriminating articles therefrom". The findings recorded by the enquiry officer, a copy of which has been placed before us, indicate that the charges framed against the appellant were sought to be proved by police officers and panch witnesses, who had raided the house of the appellant and had effected recovery. They were the only witnesses examined by the enquiry officer and the enquiry officer, relying upon their statements, came to the conclusion that the charges were established against the appellant. The same witnesses were examined in the criminal case but the Court, on a consideration of the entire evidence, came to the conclusion that no search was conducted nor was any recovery made from the residence of the appellant. The whole case of the prosecution was thrown out and the appellant was acquitted. In this situation, therefore, where the appellant is acquitted by a judicial pronouncement with the finding that the "raid and recovery" at the residence of the appellant were not proved, it would be unjust, unfair and rather oppressive to allow the findings recorded at the ex- parte departmental proceedings to stand." 57
And Nirmala J. Jhala Vs. State of Gujarat reported in (2013) 4 SCC 301 (paras 20 to 23).
"20. A subordinate judicial officer works mostly in a charged atmosphere. He is under a psychological pressure--contestants and lawyers breathing down his neck. If the fact that he renders a decision which is resented by a litigant or his lawyer were to expose him to such risk, it will sound the death knell of the institution. "Judge bashing" has become a favourite pastime of some people. There is growing tendency of maligning the reputation of judicial officers by disgruntled elements who fail to secure an order which they desire. For functioning of democracy, an independent judiciary, to dispense justice without fear and favour is paramount. Judiciary should not be reduced to the position of flies in the hands of wanton boys. (Vide L.D. Jaikwal v. State of U.P. [(1984) 3 SCC 405: 1984 SCC (Cri) 421: AIR 1984 SC 1374], K.P. Tiwari v. State of M.P. [1994 Supp (1) SCC 540: 1994 SCC (Cri) 712: AIR 1994 SC 1031], Haridas Das v. Usha Rani Banik [(2007) 14 SCC 1: (2009) 1 SCC (Cri) 750: AIR 2007 SC 2688] and Ajay Kumar Pandey, In re [(1998) 7 SCC 248: AIR 1998 SC 3299])
21. The subordinate judiciary works in the supervision of the High Court and it faces problems at the hands of unscrupulous litigants and lawyers, and for them "Judge bashing" becomes a favourable pastime. In case the High Court does not protect honest judicial officers, the survival of the judicial system would itself be in danger.
22. It is settled legal proposition that judicial review is not akin to adjudication on merits by re- appreciating the evidence as an appellate authority. The only consideration the Court/Tribunal has in its judicial review, is to consider whether the conclusion is based on evidence on record and supports the finding or whether the conclusion is based on no evidence. The adequacy or reliability of the evidence is not a matter which can be permitted to be canvassed before the Court in writ proceedings. (Vide State of T.N. v. S. Subramaniam [(1996) 7 SCC 509: 1996 SCC (L&S) 627: (1996) 33 ATC 317: AIR 1996 SC 1232], R.S. Saini v. State of Punjab [(1999) 8 SCC 90:58
1999 SCC (L&S) 1424] and Govt. of A.P. v. Mohd. Nasrullah Khan [(2006) 2 SCC 373: 2006 SCC (L&S) 316: AIR 2006 SC 1214] )
23. In Zora Singh v. J.M. Tandon [(1971) 3 SCC 834:
AIR 1971 SC 1537] this Court while dealing with the issue of scope of judicial review, held as under: (SCC p. 838, para 10) "10. ... The principle that if some of the reasons relied on by a Tribunal for its conclusion turn out to be extraneous or otherwise unsustainable, its decision would be vitiated, applies to cases in which the conclusion is arrived at not on assessment of objective facts or evidence, but on subjective satisfaction. The reason is that whereas in cases where the decision is based on subjective satisfaction if some of the reasons turn out to be irrelevant or invalid, it would be impossible for a superior court to find out which of the reasons, relevant or irrelevant, valid or invalid, had brought about such satisfaction. But in a case where the conclusion is based on objective facts and evidence, such a difficulty would not arise. If it is found that there was legal evidence before the Tribunal, even if some of it was irrelevant, a superior court would not interfere if the finding can be sustained on the rest of the evidence. The reason is that in a writ petition for certiorari the superior court does not sit in appeal, but exercises only supervisory jurisdiction, and therefore, does not enter into the question of sufficiency of evidence."
26. Based on above submissions, it was submitted that as management failed to establish any case against respondent in a manner known to law, learned Single Judge rightly found fit to exercise discretionary jurisdiction with a view to do justice and 59 said order did not suffer from any illegality or irregularity and therefore did not warrant interference.
27. In reply, learned counsel for appellant submitted that though management did not proceed with first three Articles of charges, charges were not given up entirely and management had reserved liberty unto itself specifically and proceeded with last Articles of Charge. Learned counsel strained himself to submit that departmental enquiry and criminal prosecution operate in entirely different fields and that decision of Hon'ble Supreme Court in G.M. Tank's case (supra) and Capt. M. Paul Anthony's case (supra) had been watered down in its later decision by Hon'ble Supreme Court in the case of S. Samutiram (supra).
28. It was further submitted that the allegation that respondent was not supplied with copies of documents/statements recorded in evidence of PW-1, learned counsel drew our attention to copies of 60 statement of PW-1 produced by respondent himself in writ petition and therefore submitted that said allegation was uncharitable. It was also submitted that respondent did not raise any objections about non-
supply of documents either during enquiry or in representation filed against enquiry report to disciplinary authority and submitted that respondent be estopped from urging the same before this Court.
29. From the above submissions, it is seen that the order passed by the learned Single Judge is impugned on several grounds. The first among them was that though there was delay and latches in approaching this Court, learned Single Judge condoned the same without just cause. Admittedly, respondent filed writ petition on 23.06.2014,challenging orders of disciplinary authority dated 04.01.2008 and Appellate Authority dated 01.07.2010. The writ petition is filed about six and half years from date of order of 61 disciplinary authority. The respondent has asserted in his writ petition that after receipt of order dated 04.01.2008, he preferred appeal before Appellate Authority as provided in the rules. The appellate authority did not afford him any opportunity and order passed was not communicated to him. It is stated that only after respondent submitted representation for revocation of the order of dismissal vide representation dated 28.02.2014, he was informed about dismissal of his appeal on 1.07.2010 and immediately thereafter, writ petition was filed.
30. While dealing with this aspect, learned Single Judge has observed that in view of non- communication of order passed by appellate authority, writ petition filed immediately after communication would not suffer from delay and latches. It was also observed that as respondent was dismissed from 62 service, the case deserved decision on merits, instead of on technicalities.
31. Firstly, as against clear pleading about non- communication of order, the Appellants have not either before the learned Single Judge or in appeal herein, substantiated mode of communication by producing relevant records. In the absence of the same, the finding of learned Single Judge in this regard would be in exercise of discretion in the peculiar facts and circumstances of this case. P.S. Sadashivaswamy's case (supra) relied upon by appellants, was a case of challenge to promotion wherein, Hon'ble Supreme Court observed that normally a period of six months would be reasonable to approach the Court. In Namithchand Nalavaya's case (supra), the Hon'ble Supreme Court observed that respondent employee had allowed order of punishment to attain finality and after delay of several years challenged the same after he was acquitted by 63 Criminal Court. In the instant case, writ petition is filed prior to acquittal in criminal case and though there was some delay, the same was duly explained. Therefore, the said decision being passed in different facts would not apply. In Gunashekharan's case (supra), in an earlier round of challenge, the finding that charges were proved had attained finality, as it was remanded only for reconsideration of quantum of punishment, which distinguish it from facts of this case. The Hon'ble Supreme Court in the case of Nandsingh (supra), held in similar facts of non-communication of the order passed by the disciplinary authority, the affected party cannot be non-suited on the ground of delay. Likewise in D.S. Karekar's case (supra), it was held that an order passed and kept in file cannot be treated to have come into effect without communication. In Ashok Kumar's case (supra), in view of explanation that delay occasioned was on account of availing remedy of review, the Hon'ble Supreme Court held that reasons assigned 64 constituted sufficient explanation. The Hon'ble Supreme Court in Mst. Katiji's case (supra) has succinctly laid out the parameters for condonation of delay and stated that it is not duration of delay that would be material but the cause. If the cause was reasonable, it would be sufficient justification for condonation. In view of the above legal position, exercise of discretion by the learned Single Judge cannot be said to be contrary to law warranting interference. Therefore the said ground is liable to be rejected.
32. The next challenge is to the finding of learned Single Judge that there was no evidence placed on record to substantiate the charges and non- examination of all the witnesses mentioned in Articles of charges was fatal. In this regard learned Counsel for appellants relied upon the decisions in K.L. Shindhe's case (supra), Degala Suryanarayana's case (supra), Namichand Nalvaya's case (supra) and P. 65 Gunashekharan's case (supra). In the above decisions, Hon'ble Supreme Court has held that strict rules of evidence are not applicable to departmental enquiries and High Court in exercise of power under Article 226 cannot sit in appeal over sufficiency of evidence. The only parameter applicable for exercise of judicial review would be whether it was a case of finding based on no evidence or was based on some evidence. The Hon'ble Supreme Court in the celebrated decision in the case of State of Haryana Vs. Rattan Singh reported in AIR 1977 SC 1512 has held that only the former would qualify for interference and sufficiency of evidence would not be available.
33. In the instant case, admittedly appellants/ management did not examine any of the witnesses named in list of witnesses annexed to Articles of charge. The only witness examined was the Investigation Officer, in criminal prosecution. Even said witness has 66 only stated that he was Investigating Officer in criminal prosecution and produced investigation records and also his statement in writing. Admittedly conduct of disciplinary proceedings in this case are governed by HAL Conduct, Discipline and Appeal Rules, 1984. The specific provision regarding procedure applicable during departmental enquiry is contained in Schedule II. Clause 21 of the same reads as follows:
"12. On the date fixed for enquiry, the oral and/or documentary evidence by which Articles of charges are proposed to be proved, shall be produced by or on behalf of the disciplinary authority. The witness shall be examined by or on behalf of the Presenting Officer and may be cross-examined by or on behalf of the Officer. The Presenting Officer shall be entitled to re- examine the witnesses on any point on which they have been cross-examined. But not on a new matter without the permission of the Enquiry Officer/Enquiry Committee. The Enquiry Officer/Enquiry Committee may also put such questions to witnesses as it thinks fit.
13. Before close of prosecution case, the Enquiry Authority may at its discretion allow the Presenting Officer to produce evidence not included in the charge sheet or call for new evidence or recall or re-examine any witness. In such cases, the Officer shall be given an opportunity to inspect the documentary evidence before it is taken on record or to cross-examine a witness who has been so summoned."
34. Admittedly, Sri. M. Raja, the Investigating Officer, CBI, was not among list of witnesses. A bare 67 reading of above provisions would indicate their mandatory nature. Without obtaining special permission, either of Enquiry Officer or Enquiry Committee, said witness could not have been examined by management. Thatapart, PW-1 has merely stated that he was producing investigation records. Mere production of documents without any explanation about contents would render them unacceptable as evidence. The Hon'ble Supreme Court in Gyanchand Chattar's case (supra) held that mere production of previously recorded statement would amount to denial of opportunity and therefore be in violation of principles of natural justice. The Hon'ble Supreme Court in Hardwari Lal Vs. State of Uttar Pradesh reported in AIR 2000 SC 277 in similar case, where management had not examined the complainant, whose statement was recorded during preliminary enquiry held the same would be in violation of principles of natural justice. In KL Shinde's case (supra), the Hon'ble Supreme Court 68 referred to its earlier decision in the case of State of Mysore v. Shivabasappa reported in AIR 1963 SC 375, which would be apposite. It was held as follows:
"Domestic tribunals exercising quasi-judicial functions are not courts and therefore, they are not bound to follow the procedure prescribed for trial of actions in courts nor are they bound by strict rules of evidence. They can, unlike courts, obtain all information, material for the points under enquiry from all sources, and through all channels, without being fettered by rules and procedures which govern proceedings in court. The only obligation which the law casts on them is that they should not act on any information which they may receive unless they put it to the party against whom it is to be used and give him a fair opportunity to explain it. What is a fair opportunity must depend on the facts and circumstances of each case, but where such an opportunity has been given, the proceedings are not open to attack on the ground that the enquiry was not conducted in accordance with the procedure followed in courts.
2. In respect of taking the evidence in an enquiry before such tribunal, the person against whom a charge is made should know the evidence which is given against him, so that he might be in a position to give his explanation. When the evidence is oral, normally the explanation of the witness will in its entirety, take place before the party charged who will have full opportunity of cross-examining him. The position is the same when a witness is called, the statement given previously by him behind the back of the party is put to him, and admitted in evidence, a copy thereof is given to the party and he is given an opportunity to cross-examine him. To require in that case that the contents of the previous statement should be repeated by the witness word by word and sentence by sentence, is to insist on bare technicalities and rules of natural justice are matters not of form but of substance. They are sufficiently complied with when previous statements given by witnesses are read over to them, marked on their admission, copies thereof given to the person 69 charged and he is given an opportunity to cross- examine them."
(emphasis supplied)
35. Though normally it would be in the discretion of the prosecution to examine all or any of witnesses to prove the charges, and examination of a witness not included in the list, without obtaining special permission as mandated in the procedure would gravely prejudice the respondent. Reliance on the statement of Sri Vemula Madhukar recorded by PW.1 during investigation, without providing opportunity to respondent to cross examine him, even when he is included in list of witnesses would be violative of principles of natural justice. Especially so when Sri Vemula Madhukar is the complainant in this case. The procedure adopted by the management in the instant case cannot be said to be fair.
36. Even in so far as contention regarding evidentiary value of deposition of PW-1 and documents 70 produced by him, the substance of the same has been quoted by Enquiry Officer in his report. It is stated that PW-1 produced his own statement along with relevant records pertaining to criminal case registered against respondent. It is stated that as per PW.1, his investigation is based on complaint of Sri. V. Senthil Kumar, wherein CBI laid a trap on 13.12.2003 and arrested respondent and Sri. Parameshwaran on charges of bribery etc. He stated that the case was entrusted to him for investigation. Copies of complaint given by Sri Senthil Kumar, FIR registered thereon, recovery mahazar drawn on 13.12.2003, statements of Sri. Vemula Madhukar and his father etc., produced by PW.1 were marked collectively as Ex.P.4. As PW-1 in his oral examination before Enquiry Officer did not speak about the misconduct committed by respondent and how it was established. But, Enquiry Officer himself has peered into contents of documents produced and based on references from them proceeded to hold charges as 71 proved. Among the most material of documents produced were statements of Sri Vemula Madhukar and his father. The said statements were recorded by PW-1 in the course of his investigation under Section 161 of Cr.P.C. While learned counsel for appellants contended that in departmental enquiry there was no bar against hearsay witness and statements recorded during normal course of criminal investigation as per records maintained would be evidence, learned counsel for respondent would seriously dispute the same.
37. As per Section 161 of Cr.P.C., a statement recorded by Investigation Officer does not require to be signed by the person making the statement. The only purpose of recording such statement is to facilitate investigation and to use the same for confrontation to witness, in case witness turned hostile. In any case, Section 162 of Cr.P.C. very clearly bars usage of such statement in any other investigation or enquiry than the 72 one during which it was recorded. The Hon'ble Supreme Court in the case of Virendar Singh Vs. State of Haryana reported in (2017) 11 SCC 126 has held that statements recorded under Section 161, do not constitute evidence unless substantiated by other evidence. Yet another factor that requires to be taken note of in this case is that Sri. Vemula Madhukar is named as witness no.5 in the list of witnesses. Therefore, accepting his statement recorded under Section 161 of Cr.P.C without examining him and affording opportunity of cross-examination would be violative of principles of natural justice. Hence, reason assigned by learned Single Judge that non-examination of material witnesses would vitiate the charges would be justified in the peculiar facts and circumstances of this case.
38. Though, learned counsel for appellant relied upon decision of Hon'ble Supreme Court in 73 M. Natarajan's case (supra), to challenge conclusion of learned Single Judge, the Hon'ble Supreme Court in the said case held that where delinquent employees failed to avail opportunity of cross-examination of prosecution witnesses, they cannot subsequently challenge findings on the ground of violation of principles of natural justice. Indeed, in this case, respondent did not cross- examine management witness, but that is not the sole reason for interference. Learned Single Judge has held that Rules governing departmental enquiry mandated management to examine witnesses and produce documents based on which it seeks to establish the charges and failure to examine them would be fatal. Learned Single Judge has held that there was failure on the part of Enquiry Officer, Disciplinary Authority and also Appellate Authority to examine, whether the material available would constitute evidence. As they had merely proceeded to rely upon the same, it was held that they acted mechanically. Despite specific ground 74 urged, the authorities have failed to examine the same. Hence, finding of learned Single Judge would not call for interference. As non-availing of opportunity of cross- examination is not the sole reason for interference, the ratio in M. Natarajan's case would not apply.
39. The next ground urged is against reason assigned by learned Single Judge that as charges in criminal prosecution and domestic enquiry were same, acquittal in criminal trial would entail acquittal in domestic enquiry. Learned counsel for appellant relied upon decisions of Hon'ble Supreme Court in Lalit Popli's case (supra), S. Samuthiram's case (supra) and C. Nagaraju's case (supra). On the other hand, learned counsel for respondent sought to rely upon decision of Hon'ble Supreme Court in G.M. Tank's case (supra), Capt. M. Paul Anthony's case (supra) and Nirmala J. Jhala's case (supra) to buttress the same. In Lalit Popli's case (supra), the Hon'ble Supreme Court held 75 that approach and objective in criminal proceedings and disciplinary proceedings are altogether distinct and different. The standard of proof, mode of enquiry and rules governing the same are also different. In case of disciplinary enquiry, technical rules of evidence have no application and standard of proof is that of preponderance of probabilities while in criminal trial strict rules of evidence apply and standard of proof is that of proof beyond doubt. In S. Samuthiram's case (supra), the Hon'ble Supreme Court after highlighting differences between criminal trial and departmental proceedings, held that acquittal of delinquent in criminal trial had no impact on disciplinary proceedings even if, acquittal were honourable. In C. Nagaraju's case (supra), the Hon'ble Supreme Court reiterated the said position. In S. Samuthiram's case (supra) and C. Nagaraju's case (supra), the decisions in Capt. Paul Anthony's case (supra) and G.M. Tank's case (supra) are watered down. The decision in Nirmala J. Jhala's 76 case (supra) being prior to the decisions in C.Nagaraju's case (supra) and S. Samuthiram's case (supra), of equal Bench strength, the legal position as avails from C. Nagaraju's case (supra) has to be accepted. However, as acquittal of respondent in domestic enquiry is on other grounds also, above finding would not alter the ultimate result of this Appeal.
40. In view of the above finding, the contention of the parties, whether the respondent was honourably acquitted or discharged and its effect on the disciplinary proceedings also stands would be rendered academic.
41. The last submission of learned counsel for Appellant was that as interference with the findings in domestic enquiry was on the ground of violation of principles of natural justice, the learned Single Judge ought not to have directed reinstatement with full back wages and consequential benefits. In support of his 77 submissions, he relied upon the decision of B. Karunakar's case (supra).
42. The Hon'ble Supreme Court has categorically held that setting aside of the order of punishment on the ground of violation of principles of natural justice (non-supply of copy of enquiry report, in the said case) should not directly lead to an order of reinstatement with back wages. The Hon'ble Supreme Court has held that Courts/tribunals ought to give a finding whether compliance of the same would have a bearing on the result of the enquiry and only if the Courts/tribunals arrive at a conclusion that it would have made a difference the order of punishment is to be set aside with a direction for reinstatement. In other cases, the Hon'ble Supreme Court has held that there should be a direction for reinstatement with liberty to the management to proceed with the enquiry from the stage of violation occurred.
78
43. In the instant case, the respondent was issued with four Articles of charges, dated 23.11.2004 (Annexure - C) 25.02.2006 (Annexure - R3) and 21.06.2006 (Annexures - G and N) respectively. However, the management pursued only the last one. The enquiry in respect of the first Articles of charge was abandoned after examining some of the witnesses. No enquiry was conducted in respect of second and third Articles of charges. Respondent was also prosecuted as the acts of misconduct alleged against him also constituted offences punishable under Section 120B of IPC and sections 7, 8 and 13 (2) and Section 13(1)(d) of Prevention of Corruption Act. Admittedly the respondent has been acquitted/discharged of the said offences. Incident of misconduct alleged against the respondent is of the year 2003 i.e., almost 18 years have lapsed. As the order of punishment imposed stipulated that order of dismissal from service would be a bar against future 79 employment, the respondent has been kept away from employment. Age of respondent mentioned in caused title of the appeal is 58 years in 2018. Therefore, he had already attained age of superannuation.
44. The decision taken by the management to abandon departmental enquiry und the earlier Articles of charges can only be attributed to assessment of prospects of establishing the charges therein. Likewise the decision of the management, not to examine the witnesses named in the Articles of charges and to examine only the Investigating Officer, has to be viewed as a considered decision. There are no averments made to substantiate a case of lack of proper counsel or even a case of mistaken understanding of law made out. Therefore, merely on the ground that order of punishment has been interfered with on the ground of principles of natural justice, the management cannot be permitted to take advantage of its own mistake and 80 continue with the enquiry. No such request was made during the pendency of the writ petition or at the time of its disposal. No such request was made during the pendency of this appeal. The appellants cannot therefore be permitted to avert the consequences of full- fledged battle.
45. We do not, therefore, find any merit in the alternative submission of the learned counsel for appellants. The above finding would take us to spell on the quantum of relief granted. While passing the impugned order, learned Single Judge has ordered reinstatement of respondent with all consequential benefits. The only reason assigned for issuing said direction is the observation of the learned Single Judge that the investigation into the criminal offence was conducted by none other than the Central Bureau of Investigation (CBI), the premier investigating agency in 81 the Country and the prosecution ended in discharge, before going into trial.
46. On the other hand, the management after issuing four separate Articles of charges abandoned three of them, proceeded with only one. Even in the said enquiry, none of the named witnesses were examined nor the documents based on which the charges were sought to be proved, were produced, prompting the learned Single Judge to observe that the approach of the appellants was casual. As narrated above, the charges against the respondents were serious and grave, including bribery and possession of assets disproportionate to known sources of income. The respondent was discharged by the criminal Court of the offences alleged against him, which has attained finality. On an overall consideration of the manner in which the respondent was thrust with several articles of charges and investigation into criminal offences would 82 lead to a conclusion that respondent was victimized. The above two conclusions would justify order of learned Single Judge granting all consequential reliefs. The Hon'ble Supreme Court in the case of Union of India Vs. Madhusudan Prasad reported in (2004) 1 SCC 43 has held that where employer was at fault in not following principles of natural justice, order for payment of back wages did not call for interference. In the case of Deepali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyalaya, reported in (2013) 10 SCC 324, the Hon'ble Supreme Court, summarized the principles governing back wages as follows:
"38. The propositions which can be culled out from the aforementioned judgments are:
i) In cases of wrongful termination of service, reinstatement with continuity of service and back wages is the normal rule.
ii) The aforesaid rule is subject to the rider that while deciding the issue of back wages, the adjudicating authority or the Court may take into consideration the length of service of the employee/workman, the nature of misconduct, if any, found proved against the employee/workman, the financial condition of the employer and similar other factors.83
iii) Ordinarily, an employee or workman whose services are terminated and who is desirous of getting back wages is required to either plead or at least make a statement before the adjudicating authority or the Court of first instance that he/she was not gainfully employed or was employed on lesser wages. If the employer wants to avoid payment of full back wages, then it has to plead and also lead cogent evidence to prove that the employee/workman was gainfully employed and was getting wages equal to the wages he/she was drawing prior to the termination of service. This is so because it is settled law that the burden of proof of the existence of a particular fact lies on the person who makes a positive averments about its existence.
It is always easier to prove a positive fact than to prove a negative fact. Therefore, once the employee shows that he was not employed, the onus lies on the employer to specifically plead and prove that the employee was gainfully employed and was getting the same or substantially similar emoluments.
iv) The cases in which the Labour Court/Industrial Tribunal exercises power under Section 11-A of the Industrial Disputes Act, 1947 and finds that even though the enquiry held against the employee/workman is consistent with the rules of natural justice and / or certified standing orders, if any, but holds that the punishment was disproportionate to the misconduct found proved, then it will have the discretion not to award full back wages. However, if the Labour Court/Industrial Tribunal finds that the employee or workman is not at all guilty of any misconduct or that the employer had foisted a false charge, then there will be ample justification for award of full back wages.
v) The cases in which the competent Court or Tribunal finds that the employer has acted in gross violation of the statutory provisions and/or the principles of natural justice or is guilty of victimizing the employee or workman, then the concerned Court or Tribunal will be 84 fully justified in directing payment of full back wages. In such cases, the superior Courts should not exercise power under Article 226 or 136 of the Constitution and interfere with the award passed by the Labour Court, etc., merely because there is a possibility of forming a different opinion on the entitlement of the employee/workman to get full back wages or the employer's obligation to pay the same. The Courts must always be kept in view that in the cases of wrongful / illegal termination of service, the wrongdoer is the employer and sufferer is the employee/workman and there is no justification to give premium to the employer of his wrongdoings by relieving him of the burden to pay to the employee/workman his dues in the form of full back wages.
vi) In a number of cases, the superior Courts have interfered with the award of the primary adjudicatory authority on the premise that finalization of litigation has taken long time ignoring that in majority of cases the parties are not responsible for such delays. Lack of infrastructure and manpower is the principal cause for delay in the disposal of cases. For this the litigants cannot be blamed or penalised. It would amount to grave injustice to an employee or workman if he is denied back wages simply because there is long lapse of time between the termination of his service and finality given to the order of reinstatement. The Courts should bear in mind that in most of these cases, the employer is in an advantageous position vis-à-vis the employee or workman. He can avail the services of best legal brain for prolonging the agony of the sufferer, i.e., the employee or workman, who can ill afford the luxury of spending money on a lawyer with certain amount of fame. Therefore, in such cases it would be prudent to adopt the course suggested in Hindustan Tin Works Private Limited v. Employees of Hindustan Tin Works Private Limited (supra).
vii) The observation made in J.K. Synthetics Ltd. v. K.P. Agrawal (supra) that on reinstatement the employee/workman cannot claim continuity of 85 service as of right is contrary to the ratio of the judgments of three Judge Benches referred to hereinabove and cannot be treated as good law. This part of the judgment is also against the very concept of reinstatement of an employee/workman."
(emphasis supplied) In the writ petition, respondent herein stated that due to dismissal from service, he was unable to secure employment elsewhere. Even his Ph.D. thesis was not considered. This placed him in financial predicament. The appellants have not placed any material to substantiate that respondent was gainfully employed. The order of punishment indicated that dismissal would be bar against future employment. It is held above that enquiry was faulty due to lapses of appellants. While ordering reinstatement with all consequential benefits, the learned Single Judge has observed the effects that imposition of punishment of dismissal from service, has on the delinquent employee and his family. In view of the legal position stated above and the facts of this case, we hold that it would not be proper to remit the matter back to disciplinary authority for reconsideration of 86 order of punishment. We also do not find any justification to interfere with the quantum of relief granted.
48. In the result, we pass the following:
ORDER Writ appeal is dismissed with cost of Rs.25,000/-
(Rupees Twenty Five Thousands only).
Sd/-
JUDGE Sd/-
JUDGE BVK