Himachal Pradesh High Court
Between vs Deputy Superintendent Of Police on 20 August, 2021
Bench: Ravi Malimath, Jyotsna Rewal Dua
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE 20th DAY OF AUGUST 2021
BEFORE
.
HON'BLE MR. JUSTICE RAVI MALIMATH,
ACTING CHIEF JUSTICE
&
HON'BLE MS. JUSTICE JYOTSNA REWAL DUA
LETTERS PATENT APPEAL No. 437 of 2012
Between:-
SATISH KUMAR
S/O SH. SUKH RAM,
R/O VILLAGE GAHAR,
POST OFFICE PANJGAIN,
DISTRICT BILASPUR,
HIMACHAL PRADESH
......APPELLANT
(BY SH. T.S. CHAUHAN, ADVOCATE)
AND
THE ASSOCIATED CEMENT
COMPANIES LTD. GAGAL CEMENT
WORKS, POST OFFICE BARMANA,
DISTRICT BILASPUR,
HIMACHAL PRADESH
THROUGH ITS SENIOR
VICE PRESIDENT
......RESPONDENT
(BY SH. K.D. SOOD, SENIOR ADVOCATE
WITH SH. HET RAM, ADVOCATE)
This Appeal coming on for orders this day, Hon'ble
Ms. Justice Jyotsna Rewal Dua, delivered the following:
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JUDGMENT
Following reference was sent by the appropriate Government to the learned Labour Court-cum-Industrial Tribunal, Dharamshala, .
District Kangra, for adjudication:-
"Whether the termination of services of Sh. Satish Kumar, worker by the Management of M/s. Associated Cement Companies, Gaggal Cement Works, Barmana, District Bilaspur, H.P. by implicating him in the false charge of alleged theft without any fair and proper enquiry in accordance with the principles of fair play and natural justice by denying him the reasonable opportunity of being heard, is justified and maintainable. If not, to what relief of consequential benefits including back wages, seniority and amount of compensation, Sh. Satish Kumar is entitled."
Learned Labour Court dismissed the reference on 29.05.2007. Writ petition filed by the petitioner against this award was also dismissed by the learned Single Judge on 03.07.2012.
Appellant is taking second chance against the award by means of instant appeal.
2(i). The appellant was appointed as a Workman with the respondent in 1986. Respondent issued a charge-sheet to him on 04.01.1995. The charges pertained to riotous, disorderly, indecent behavior of the appellant on the respondent's property/premises.
The appellant was also charged with theft, fraud, dishonesty in connection with respondent's property/business. Charges of forgery, falsification, tampering, manipulation and destruction of record were also levelled against the appellant. He was also accused of ::: Downloaded on - 31/01/2022 22:55:33 :::CIS -3- trespassing on respondent's property.
2(ii). Appellant filed reply to the charge-sheet on 09.01.1995.
Respondent appointed an Inquiry Officer. The appellant filed an .
application for deferring the departmental proceedings in view of pendency of criminal case against him allegedly on the same allegations. Initially, the appellant did not participate in the departmental proceedings. Notice was issued to him through daily edition of newspaper 'Jansatta' on 27.02.1995. Appellant thereafter was not appeared before the Inquiry Officer on 03.03.1995. The request of the appellant for deferring the inquiry during pendency of criminal proceedings accepted. Inquiry proceedings were completed. The inquiry report was submitted on 14.08.1995. The Inquiry Officer held that the appellant was guilty of 'drunkenness, riotous or disorderly or indecent behavior on the company's property or premises'. It was also held that the appellant had committed acts subversive of discipline. The charges of theft, fraud or dishonesty in connection with the company's property or business were held to be proved against the appellant. Charge of forgery, falsification, tampering, manipulation, defacement or destruction of documents was also held to be established against the appellant. The appellant was also held guilty of trespassing on company's property/premises.
The inquiry report was sent to the appellant on 19.08.1995. After ::: Downloaded on - 31/01/2022 22:55:33 :::CIS -4- completing the disciplinary proceedings, the disciplinary authority dismissed the appellant from service on 31.08.1995.
2(iii). The appellant raised an industrial dispute against his .
dismissal order dated 31.08.1995. The matter was referred by the State Government to the learned Labour Court-cum-Industrial Tribunal, Kangra at Dharamshala. The learned Labour Court after appreciating the respective contentions of the parties and evidence adduced by him, dismissed the reference, vide award dated 29.05.2007. The appellant thereafter preferred a writ petition before this Court. The writ petition was also dismissed by the learned Single Judge vide judgment dated 03.07.2012, impugned herein.
3. Heard learned counsel for the parties and gone through the record.
Before the learned Single Judge, the appellant had raised various contentions, viz. regarding conduct of inquiry proceedings in violation of the principles of natural justice and non-adherence to the mandatory procedure prescribed in law. Learned Single Judge after appreciating the facts, submissions of the parties and the evidence adduced by them in support of their contentions, held that the inquiry was held in accordance with law. Principles of natural justice were followed. The entire procedure prescribed in law was followed while holding the inquiry and the disciplinary proceedings. Learned ::: Downloaded on - 31/01/2022 22:55:33 :::CIS -5- counsel for the appellant has not re-agitated these points during hearing of this appeal.
4. The only point urged by the learned counsel for the appellant .
is that an FIR was registered against the appellant under Sections 379, 420 and 120B of the Indian Penal Code. This FIR was registered on the basis of the same allegations, on which the departmental proceeding was initiated against the appellant. The criminal case eventually resulted in appellant's acquittal on 09.11.2005. Learned counsel for the appellant argued that since the criminal case has resulted in appellant's acquittal, therefore, the penalty of dismissal from service imposed upon the appellant in departmental proceedings should also be reviewed. Under these circumstances, the appellant has to be reinstated in service.
5. It is well settled that acquittal in the criminal case has no bearing or relevance to the fate of the departmental proceedings as the standard of proof required in both the proceedings is totally different. Object and approach of two proceedings are altogether different. Degree of proof required in these two proceedings is also different. In this regard, it will be apt to refer to the judgment passed by the Hon'ble Apex Court in (2020) 9 SCC 636, titled Ashoo Surendranath Tewari Versus Deputy Superintendent of Police, EOW, CBI and another, wherein it was observed that standard of ::: Downloaded on - 31/01/2022 22:55:33 :::CIS -6- proof in departmental proceedings, being based on preponderance of probability, is somewhat lower than the standard of proof in criminal proceedings, where the case has to be proved beyond .
reasonable doubt. It was also held that departmental and criminal proceedings are independent in nature to each other. Relevant paras of the judgment are as under:-
"8. A number of judgments have held that the standard of proof in a departmental proceeding, being based on preponderance of probability is somewhat lower than the standard of proof in a criminal proceeding where the case has to be proved beyond reasonable doubt. In P.S. Rajya v. State of Bihar, (1996) 9 SCC 1, the question before the Court was posed as follows:- "
"3. The short question that arises for our consideration in this appeal is whether the respondent is justified in pursuing the prosecution against the appellant under Section 5(2) read with Section 5(1)(e) of the Prevention of Corruption Act, 1947 notwithstanding the fact that on an identical charge the appellant was exonerated in the departmental proceedings in the light of a report submitted by the Central Vigilance Commission and concurred by the Union Public Service Commission."
9. This Court then went on to state:
"17. At the outset we may point out that the learned counsel for the respondent could not but accept the position that the standard of proof required to establish the guilt in a criminal case is far higher than the standard of proof required to establish the guilt in the departmental proceedings. He also accepted that in the present case, the charge in the departmental proceedings and in the criminal proceedings is one and the same. He did not dispute the findings rendered in the departmental proceedings and the ultimate result of it."
11. In Radheshyam Kejriwal v. State of W.B. [(2011) 3 SCC 581], this Court held as follows:-
"26. We may observe that the standard of proof in a criminal case is much higher than that of the adjudication proceedings. The Enforcement Directorate has not been able to prove its case in the adjudication proceedings and the appellant has ::: Downloaded on - 31/01/2022 22:55:33 :::CIS -7- been exonerated on the same allegation. The appellant is facing trial in the criminal case. Therefore, in our opinion, the determination of facts in the adjudication proceedings cannot be said to be irrelevant in the criminal case. In B.N. Kashyap [AIR 1945 Lah 23] the Full Bench had not considered the effect of a finding of fact in a civil case over the criminal cases and .
that will be evident from the following passage of the said judgment:
"... I must, however, say that in answering the question, I have only referred to civil cases where the actions are in personam and not those where the proceedings or actions are in rem. Whether a finding of fact arrived at in such proceedings or actions would be relevant in criminal cases, it is unnecessary for me to decide in this case. When that question arises for determination, the provisions of Section 41 of the Evidence Act, will have to be carefully examined."
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29. We do not have the slightest hesitation in accepting the broad submission of Mr. Malhotra that the finding in an adjudication proceeding is not binding in the proceeding for criminal prosecution. A person held liable to pay penalty in adjudication proceedings cannot necessarily be held guilty in a criminal trial. Adjudication proceedings are decided on the basis of preponderance of evidence of a little higher degree whereas in a criminal case the entire burden to prove beyond all reasonable doubt lies on the prosecution.
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31. It is trite that the standard of proof required in criminal proceedings is higher than that required before the adjudicating authority and in case the accused is exonerated before the adjudicating authority whether his prosecution on the same set of facts can be allowed or not is the precise question which falls for determination in this case."
12. After referring to various judgments, this Court then culled out the ratio of those decisions in para 38 as follows:-
"38. The ratio which can be culled out from these decisions can broadly be stated as follows:
(i) Adjudication proceedings and criminal prosecution can be launched simultaneously;
(ii) Decision in adjudication proceedings is not necessary before initiating criminal prosecution;
(iii) Adjudication proceedings and criminal proceedings are independent in nature to each other;
(iv) The finding against the person facing prosecution in the ::: Downloaded on - 31/01/2022 22:55:33 :::CIS -8- adjudication proceedings is not binding on the proceeding for criminal prosecution;
(v) Adjudication proceedings by the Enforcement Directorate is not prosecution by a competent court of law to attract the provisions of Article 20(2) of the Constitution or Section 300 of the Code of Criminal Procedure;
.
(vi) The finding in the adjudication proceedings in favour of the person facing trial for identical violation will depend upon the nature of finding. If the exoneration in adjudication proceedings is on technical ground and not on merit, prosecution may continue; and
(vii) In case of exoneration, however, on merits where the allegation is found to be not sustainable at all and the person held innocent, criminal prosecution on the same set of facts and circumstances cannot be allowed to continue, the underlying principle being the higher standard of proof in criminal cases."
In State Bank of Bikaner and Jaipur Vs. Nemi Chand Nalwaya, (2011) 4 SCC 584, Hon'ble Apex Court considered the effect of subsequent acquittal of an employee by the criminal Court on a completed disciplinary proceedings. It was held that finding of guilt or punishment in an already completed disciplinary proceedings will not be rendered invalid or ineffective by the subsequent acquittal of official in the criminal trial. Departmental proceedings are more proximate to the incident in point of time when compared to criminal proceedings. The findings of criminal Court will have no effect on previously concluded domestic enquiry. An employee who allows the findings in the enquiry and the punishment by disciplinary authority to attain finality by non-challenge, cannot after several years, challenge the decision on the ground that subsequently the criminal ::: Downloaded on - 31/01/2022 22:55:33 :::CIS -9- Court has acquitted him. Relevant para of the judgment is as under:-
"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 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."
The above position was reiterated in (2020) 3 SCC 423, titled State of Karnataka and another Vs. N. Gangaraj, wherein well established principle was also highlighted that Courts will not act as an appellate Court and re-assess the evidence led in the domestic enquiry, nor interfere on the ground that another view is possible on the material on record. If the enquiry has been fairly and properly held and the findings are based on evidence, the question of adequacy of the evidence or the reliable nature of the evidence will not be ground for interfering with the findings in departmental enquiries.
In the instant case, departmental proceedings were conducted against the appellant in accordance with law. On conclusion of ::: Downloaded on - 31/01/2022 22:55:33 :::CIS
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disciplinary proceedings, punishment of dismissal from service was imposed upon the appellant on 31.08.1995. It is well settled that High Court while exercising power of judicial review in respect of .
orders passed by the disciplinary authority does not act as Court of Appeal. Acquittal of the appellant in criminal case on 09.11.2005, in the facts of the case, will have no bearing on the departmental proceedings. In criminal case, proof required is beyond reasonable doubt, while in domestic inquiry, it is proof on preponderance of probabilities.
Therefore, we do not find force in the contention of learned counsel for the appellant that mere acquittal of the appellant in the criminal proceedings should make way for his reinstatement in service. The award passed by the learned Labour Court, dismissing the reference, is well reasoned. The judgment passed by the learned Single Judge, upholding the award, does not call for any interference. Consequently, the instant appeal lacks merit and is accordingly dismissed.
( Ravi Malimath )
Acting Chief Justice
( Jyotsna Rewal Dua )
August 20, 2021 Judge
Mukesh
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