Jharkhand High Court
Dilip Bhuyan vs Central Coalfields Ltd & Ors on 16 January, 2014
Equivalent citations: 2014 (4) AJR 230
Author: Shree Chandrashekhar
Bench: Shree Chandrashekhar
W.P.(S) No. 667 of 2009
(An application under Article 226 of the Constitution of India)
Dilip Bhuiyan ... ... ... Petitioner
Versus
1. Central Coalfield Limited, through its Chairman-cum-Managing
Director, Ranchi
2. Director Personnel, C.C.L., Ranchi
3. General Manager, C.C.W.D. Kathara Colliery, C.C.L. Kathara,
Bokaro Thermal, Bokaro
4. Project Officer, Swang Washery, C.C.L. at Swang Colliery, Bokaro
Thermal, Bokaro
5. Senior Personnel Officer, Swang Washery, C.C.L. at Swang ,
Bokaro Thermal, Bokaro, ...... ...... Respondents
For the Petitioner : M/s. Atanu Banerjee, D.C. Mishra,
& Amit Keshri, Advocates
For the Respondents : Mr. Ananda Sen, Advocate
PRESENT
HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR
By Court: Heard the learned counsel for the parties and perused the
documents on record.
2. The brief facts of the case are that, the petitioner was appointed on 28.01.1989 and at the relevant time the petitioner was working as Mazdoor, C-II. In the incident dated 06.09.2000 a First Information Report was lodged by the Security Guard of the Central Coalfields Limited and a F.I.R. being Gomia P.S. Case No. 91 of 2000 under Section 395 of the Indian Penal Code was registered against unknown. On 19.01.2001 the petitioner was suspended and a charge-memo was served upon him. An amended charge-memo was served upon the petitioner on 24.02.2001. An enquiry was conducted into the matter and the enquiry report dated 07.08.2001 was submitted. A second show-cause notice was issued to the petitioner on 19.10.2001. By final order dated 05.04.2002 the petitioner was dismissed from service. The appeal preferred by the petitioner has been 2 dismissed by order dated 11.09.2002. In the criminal case though, the petitioner was charge-sheeted and put on trial he was acquitted of the criminal charge by order dated 20.12.2005 and therefore, the petitioner approached the respondent-authority on 17.02.2006 for revoking the order of dismissal from service. Since, the representation of the petitioner was not decided by the respondent-authority, the petitioner moved this Court in W.P.(S) No. 4108 of 2006 which was disposed of by order dated 05.02.2008 directing the appellate authority to pass an order on the representation of the petitioner. By order dated 09.09.2008, the appellate authority has affirmed the order dated 11.09.2002 whereby, the appeal preferred by the petitioner was rejected.
3. A counter-affidavit has been filed taking a plea that, since proceeding in the criminal case and departmental enquiry are different, acquittal in criminal case cannot be a ground to interfere with the punishment imposed in the departmental proceeding. The relevant portion of the counter-affidavit is extracted below:
"12. That it is stated that the petitioner having committed theft of a Computer from Deshaling Plant of Swang Washery and having been arrested by Police on 13.9.2000 was issued a charge sheet no. 6935 dated 15/24.2.2001 which was a corrigendum to the earlier charge sheet no. 6320 dated 19.1.2001. It is stated that the misconduct was alleged under para 26.1 of the acts of misconduct under Certified Standing Order of the respondent no. 1 Company which reads as follows:3
"26.1 theft, fraud or dishonesty in connection with the employer's business or property."
It is stated that by the above charge sheet, petitioner was also placed under suspension with effect from 19.1.2001.
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15. That it is stated that the enquiry officer submitted report dated 7.8.2001 concluding that the charges levelled against Sri Dilip Bhuiyan/petitioner is reasonably proved.
16. That it is stated that from the enquiry report it would appear that the enquiry officer relying upon the management's case/statement as also the case/statement of defendant and further the documentary evidence produced by the accused worker/petitioner observed that it appears very clear that there was a theft of P.C. From the plant, that the P.C. was recovered from near the house of Sri Baleshwar Ravidas a criminal, subsequently arrested and on the statement of Sri Baleshwar Ravidas Sri Dilip Bhuiyan was arrested, that the accused workman/petitioner confessed in presence of Project Officer, Sr. Personnel Officer and Sub-Inspector of Swang Washery about his involvement and that he was Jailed for a period of about 4 months.
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19. That it is stated that a copy of the enquiry report was served to the petitioner by a letter dated 19.10.2001 and to which the petitioner submitted his reply dated 24.10.2001.
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29. That as regard to petitioner's pleading of acquittal in criminal case, it is stated that his acquittal is dated 20.12.2005 whereas the dismissal from service is dated 5.4.2002 i.e. much earlier to acquittal. It is stated that apart from that acquittal in criminal case is not a bar, not to initiate departmental enquiry. It is stated that it is 4 settled that the yard stick and standard of proof in a criminal case is different from the departmental proceeding. It is stated that the standard of proof in a criminal case is a proof beyond reasonable doubt, whereas the proof in a departmental proceeding is preponderance of probabilities."
4. The learned counsel appearing for the petitioner has submitted that, since the charge against the petitioner is of theft and the petitioner has been acquitted of the said charge in the criminal case, the petitioner is entitled for reinstatement in service from the date of dismissal. The learned counsel has further submitted that during the departmental enquiry only two witnesses were examined by the department and both witnesses are formal witnesses. These two witnesses were examined in the criminal case also and since, in the criminal case, the petitioner has been acquitted of the charges, the penalty of dismissal from service is liable to be recalled. The learned counsel for the petitioner has relied upon judgments of the Hon'ble Supreme Court reported in (2007) 9 SCC 755, (2006) 5 SCC 446, (2006) 5 SCC 88, (2005) 7 SCC 764, (2008) 4 SCC 1 and (1996) 6 SCC 417.
5. As against the above, Mr. Ananda Sen, the learned counsel appearing for the respondent-C.C.L. has submitted that, the petitioner approached the Court 6 years after he was dismissed from service. He did not approach the Court challenging the order of dismissal from service and therefore, the subsequent acquittal in the criminal case cannot be a ground for reinstating the petitioner in service. 5 The learned counsel for the respondents has relied on a decision reported in (2011) 4 SCC 584.
6. A perusal of charge-memo dated 15/24.02.2001 would disclose that the only charge framed against the petitioner reads thus:
"That you were involved in theft of Computer from Deshaling plant of Sawang Washery & were arrested by Police on 13/9/2000."
If the above charges are proved they would constitute acts subversive of discipline and also constitute misconduct under clause.................26.1........... of certified Standing Order and even otherwise considering what is misconduct has to be reasonably construed."
7. I further find that it has been stated in the charge-memo that if the charge is proved, it would constitute an act subversive of discipline and would be a misconduct under Clause 26.1 of the Certified Standing Order. The witnesses examined on behalf of the department have only affirmed the content of the complaint dated 07.09.2000. One of the witnesses is Ghuran Mian who submitted the complaint to the police however, in the complaint he has not named the petitioner as an accused. In support of the charge no other witness has been examined by the Department and therefore, the acquittal of the petitioner in the criminal case would be relevant factor which is to be considered for deciding the representation of the petitioner. I further find that the petitioner has placed reliance on the judgment in "G.M. Tank Vs. State of Gujarat and others", reported in (2006) 5 6 SCC 446. From the impugned order dated 09.09.2008, I do not find any discussion by the appellate authority with respect to the plea raised by the petitioner relying on the judgment in "G.M. Tank Vs. State of Gujarat and others (supra)". The finding in the departmental proceeding that the charge is proved, is perverse because the witness namely, Ghuran Mian has not named the petitioner as an accused in the written complaint and therefore, in the departmental proceeding a finding could not have been recorded that the petitioner was involved in theft of computer. The charge against the petitioner was of theft and the petitioner has been acquitted from the said charge in a criminal case, and since, the evidence brought during the departmental enquiry is similar, I am of the view that the petitioner is entitled for reinstatement in service. Further, since the criminal proceeding against the petitioner was initiated at the instance of employer himself, the petitioner would be entitled for reinstatement in service.
8. In "G.M. Tank Vs. State of Gujarat and others", reported in (2006) 5 SCC 446, a delinquent employee who was dismissed from service, approached the Court after his acquittal in criminal case after a period of 10 years and the Hon'ble Supreme Court accepted the plea raised by the delinquent employee in following words:
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 7 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 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 8 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 will apply. We, therefore, hold that the appeal filed by the appellant deserves to be allowed.
9. In "Capt. M.Paul Anthony Vs. Bharat Gold Mines Ltd. and another" reported in (1999) 3 SCC 679, the Hon'ble Supreme Court has held that, if the evidence brought during the departmental enquiry and the criminal case are identical, on acquittal from the criminal charges, the employee is entitled for exoneration in the departmental proceeding. In the present case, I find that the witnesses who were examined during the departmental proceeding were also examined in the criminal case and since the criminal case against the petitioner has failed, I am of the view that the order passed in the departmental enquiry dismissing the petitioner from service, is liable to be interfered with and accordingly, the orders dated 05.04.2002 and 09.09.2008 are hereby quashed.
10. The writ petition is allowed in the aforesaid terms.
(Shree Chandrashekhar, J.) Jharkhand High Court, Ranchi Dated 16/01/ 2014 Satyarthi/ A.F.R.