Madhya Pradesh High Court
Union Of India vs Deep Chand Sahu on 2 July, 2018
1
THE HIGH COURT OF MADHYA PRADESH
W.P. No. 1738/2015
Union of India Vs. Deep Chand Sahu
Gwalior, 02/07/2018
Shri Vivek Khedkar, learned Assistant Solicitor
General for the petitioner / Union of India.
Shri Prashant Sharma, learned counsel for the
respondent.
Challenge in this petition under Article 227 of the Constitution of India, is to an order dated 28/07/2014 passed by Central Administrative Tribunal, Bench Jabalpur, in Original Application No. 194 of 2012.
The original application filed by the respondent was directed against the charge memorandum dated 06/07/2010 with a further direction to the respondent not to conduct departmental enquiry on the basis of said charge memorandum.
The relevant facts briefly are that the petitioner while holding the post of Deputy Director (Electrical) in Micro Small and Medium Enterprises, was issued a charge memorandum on 06/07/2010 under Rule 14 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 alleging that while he was 2 THE HIGH COURT OF MADHYA PRADESH W.P. No. 1738/2015 Union of India Vs. Deep Chand Sahu working as Branch Incharge in Branch MSME- Development Institute, Gwalior, demanded and accepted a bribe of Rs. 5,000/- from one Shri Satish Kumar Sharma, proprietor of M/s Sharma Fluidics, Gwalior for preparing and sending inspection report in favour of his unit for its NSIC registration. The Article of Charges revealed that the petitioner was also proceeded in criminal case registered by Central Bureau of Investigation, Bhopal, Branch Indore on the complaint of said Satish Kumar Sharma.
The respondent filed the original application challenging the impugned charge memorandum dated 06/07/2010 on the ground that on the same facts, the petitioner has been proceeded in a criminal case; therefore, it is beyond the competence of the Disciplinary Authority to issue a charge-sheet and proceeded departmental enquiry on the same set of facts.
The Tribunal by placing reliance on the decision in Capt. M. Paul Anthony Vs. Bharat Gold Mines Ltd. 3 THE HIGH COURT OF MADHYA PRADESH W.P. No. 1738/2015 Union of India Vs. Deep Chand Sahu and another [(1993) 3 SCC 679], and G.M. Tank Vs. State of Gujarat and others [(2006) 5 SCC 446] and taking note of the fact that respondent was acquitted of the charges in criminal case, quashed the charge memorandum dated 06/07/2010 and further proceedings thereon with a direction that the respondent shall be entitled for all consequential benefits.
The employer, Union of India has filed this petition challenging the order. The issue as to whether it will be within the competence of the Disciplinary Authority to initiate a departmental enquiry in respect of the charges for which the employee has been proceeded in a criminal case is no more res-integra and has been settled at rest by the Hon'ble Supreme Court.
In Kendriya Vidhyalaya Sangathan and others Vs. T. Srinivas [(2004) 7 SCC 442], it is held:-
"10. From the above, it is clear that the advisability, desirability or propriety, as the case may be, in regard to a 4 THE HIGH COURT OF MADHYA PRADESH W.P. No. 1738/2015 Union of India Vs. Deep Chand Sahu departmental enquiry has to be determined in each case taking into consideration all facts and circumstances of the case. This judgment also lays down that the stay of departmental proceedings cannot be and should not be a matter of course.
11. In the instant case, from the order of the tribunal as also from the impugned order of the High Court, we do not find that the two forums below have considered the special facts of this case which persuaded them to stay the departmental proceedings. On the contrary, a reading of the two impugned orders indicates that both the Tribunal and the High Court proceeded as if a departmental enquiry had to be stayed in every case where a criminal trial in regard to the same misconduct is pending. Neither the Tribunal nor the High Court did take into consideration the seriousness of the charge which pertains to acceptance of illegal gratification and the desirability of continuing the respondent in service inspite of such serious charges levelled against him. This Court in the said case 5 THE HIGH COURT OF MADHYA PRADESH W.P. No. 1738/2015 Union of India Vs. Deep Chand Sahu of State of Rajasthan Vs. B.K. Meena (1996) 6 SCC 417, has further observed that the approach and the objective in the criminal proceedings and the disciplinary proceedings is altogether distinct and different. It held that 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 are established and, if established, what sentence should be imposed upon him.
The court in the above case further noted that the standard of proof, the mode of enquiry and the rules governing the enquiry and trial in both the cases are distinct and different. On that basis, in the case of State of Rajasthan (supra) the facts which seems to be almost similar to the facts of this case held that the tribunal fell in error in staying the disciplinary proceedings.
14. We are of the opinion that both the Tribunal and the High Court proceeded on an erroneous legal principle without 6 THE HIGH COURT OF MADHYA PRADESH W.P. No. 1738/2015 Union of India Vs. Deep Chand Sahu taking into consideration the facts and circumstances of this case and proceeded as if the stay of disciplinary proceedings is a must in every case where there is a criminal trial on the very same charges, in this background it is not necessary for us to go into second question whether at least Charge 3 by itself could have been permitted to be decided in the departmental enquiry as contended alternatively by the learned counsel for the appellant.
15. For the reasons stated above, this appeal succeeds. The impugned order of the Tribunal and the High Court are set aside. The appeal is allowed."
In Commissioner of Police, New Delhi Vs. Narender Singh [(2006) 4 SCC 265], it is held:-
"13. It is now well settled by reason of a catena of decisions of this Court that if an employee has been acquitted of a criminal charge, the same by itself would not be a ground not to initiate a departmental proceeding against him or to drop the same in the event an order of acquittal is passed."7
THE HIGH COURT OF MADHYA PRADESH W.P. No. 1738/2015 Union of India Vs. Deep Chand Sahu In Suresh Pathrella Vs. Oriental Bank of Commerce [(2006) 10 SCC 572], it is held:-
"11. In our view, the findings recorded by the learned Single Judge are fallacious. This Court has taken the view consistently that acquittal in a criminal case would be no bar for drawing up a disciplinary proceeding against the delinquent officer. It is well settled principle of law that the yardstick and standard of proof in a criminal case is different from the disciplinary proceeding. While the standard of proof in a criminal case is a proof beyond all reasonable doubt, the proof in a departmental proceeding is preponderance of probabilities."
In Noida Entrepreneurs Association Vs. Noida and others [(2007) 10 SCC 385], it is held:-
"15. The position in law relating to acquittal in a criminal case, its effect on departmental proceedings and re- instatement in service has been dealt with by this Court in Union of India and Anr. v. Bihari Lal Sidhana (1997 (4) SCC 8 THE HIGH COURT OF MADHYA PRADESH W.P. No. 1738/2015 Union of India Vs. Deep Chand Sahu
385). It was held in para 5 as follows:
"5. It is true that the respondent was acquitted by the criminal court but acquittal does not automatically give him the right to be re- instated into the service. It would still be open to the competent authority to take decision whether the delinquent government servant can be taken into service or disciplinary action should be taken under the Central Civil Services (Classification, Control and Appeal) Rules or under the Temporary Service Rules.
Admittedly, the respondent had been working as a temporary
government servant before he was kept under suspension. The termination order indicated the factum that he, by then, was under suspension. It is only a way of describing him as being under suspension when the order came to be passed but that does not constitute any stigma. Mere acquittal of government employee does not automatically entitle the 9 THE HIGH COURT OF MADHYA PRADESH W.P. No. 1738/2015 Union of India Vs. Deep Chand Sahu government servant to reinstatement. As stated earlier, it would be open to the appropriate competent authority to take a decision whether the enquiry into the conduct is required to be done before directing reinstatement or appropriate action should be taken as per law, if otherwise, available. Since the respondent is only a temporary government servant, the power being available under Rule 5(1) of the Rules, it is always open to the competent authority to invoke the said power and terminate the services of the employee instead of conducting the enquiry or to continue in service a government servant accused of defalcation of public money. Re- instatement would be a charter for him to indulge with impunity in misappropriation of public money."
16. The standard of proof required in departmental proceedings is not the same as required to prove a criminal charge and even if there is an acquittal in the criminal proceedings the same 10 THE HIGH COURT OF MADHYA PRADESH W.P. No. 1738/2015 Union of India Vs. Deep Chand Sahu does not bar departmental proceedings. That being so, the order of the State Government deciding not to continue the departmental proceedings is clearly untenable and is quashed. The departmental proceedings shall continue."
In Deputy Inspector General of Police and another Vs. S. Samuthiram [(2013) 1 SCC 598], it is held:-
"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 not examined Head Constables Adiyodi (No. 11 THE HIGH COURT OF MADHYA PRADESH W.P. No. 1738/2015 Union of India Vs. Deep Chand Sahu 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.
P1 - 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."
Thus it is within the competence of the Disciplinary Authority to initiate a departmental enquiry even in respect of the facts on which an employee is proceeded/ or acquitted in a criminal 12 THE HIGH COURT OF MADHYA PRADESH W.P. No. 1738/2015 Union of India Vs. Deep Chand Sahu case.
The impugned order when is tested on the anvil of law laid down by the Supreme Court in case of T. Srinivas (supra), Narender Singh (supra), Suresh Pathrella (supra), Noida Enterpreneurs Association (supra) & S. Samuthiram (supra) cannot be given the stamp of approval.
Consequently, the impugned order passed by Central Administrative Tribunal, Bench Jabalpur in original application No. 194/2012 is set aside. The matter is relegated to the Tribunal for decision on merit.
At this stage, it is submitted by learned counsel for the respondent that during pendency of present petition, in furtherance to interim order passed by this Court, the department has already initiated a departmental enquiry and enquiry report has been sent to Central Vigilance Commission, whereon the decision has to be taken.
Since we have set aside the order passed by the Tribunal and in case the departmental enquiry 13 THE HIGH COURT OF MADHYA PRADESH W.P. No. 1738/2015 Union of India Vs. Deep Chand Sahu has been further conducted in furtherance to charge memorandum dated 06/07/2010, it is for the disciplinary authority to take action thereon, we refrain from making any observation.
Petition is disposed of finally in above terms. No costs.
(Sanjay Yadav) (Ashok Kumar Joshi)
Judge Judge
shubh*
Digitally signed by
SHUBHANKAR MISHRA
Date: 2018.07.05 14:50:02
+05'30'