Jharkhand High Court
Raj Kumar Biswas S/O Late Binod Biswas vs Union Of India Through The General ... on 13 June, 2018
Equivalent citations: 2019 (1) AJR 193, (2019) 1 JCR 232 (JHA)
Author: Aparesh Kumar Singh
Bench: Aparesh Kumar Singh, Ratnaker Bhengra
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W.P. (S) No. 5404 of 2014
--
Raj Kumar Biswas S/o Late Binod Biswas, R/o Railway Carriage Colony, PO
Tata Nagar, Ps Burma Mines Town Jamshedpur, District Singhbhum (East)
.....Petitioner
Versus
1. Union of India through the General Manager, South Eastern Railway,
Garden Reach PO and PS Garden Reach, Kolkata
2. Divisional Railway Manager, South Eastern Railway, Chakradharpupr, PO
and PS Chakradharpupr, District West Singhbhum, Jharkhand
3. The Additional Divisional Railway Manager, South Eastern Railway,
Chakradharpur, PO and PS Chakradharpur, District West Singhbhum,
Jharkhand
4. The Senior Divisional Railway Manager, South Eastern Railway,
Chakradharpur, PO and PS Chakradharpur, District West Singhbhum,
Jharkhand. ......Respondents
---
For the Petitioner: Mrs. M.M.Pal, Sr. Advocate
For the Respondents : Mr. Mahesh Tiwari, Advocate
---
CORAM:HON'BLE MR. JUSTICE APARESH KUMAR SINGH
HON'BLE MR. JUSTICE RATNAKER BHENGRA
---
By Court: Heard learned senior counsel for the petitioner and learned counsel Mr.
Mahesh Tiwari representing the respondent-Railways.
2. Learned Central Administrative Tribunal has dismissed the challenge laid
to the order of punishment of removal of service dated 5.10.2004
(Annexure-3) passed by the Sr. Divisional Mechanical Engineer,
Chakradharpur whereunder the applicant/petitioner was removed from
service with compassionate allowance equivalent to 2/3rd of pension. The
appellate authority by its order dated 24.5.2006 (Annexure-4) had affirmed
the punishment and later on, the Divisional Railway Manager,
Chakradharpur vide his order dated 16th August, 2008 (Annexure-5)
refused to interfere in the orders of punishment in revision. The applicant
had sought reinstatement in service to the post of Technician Grade-I with
all consequential benefits and also sought quashing of the orders passed
by the disciplinary authority, the appellate authority and the revisional
authority. Learned Tribunal vide impugned order dated 20.2.2014
(Annexure-9) passed in O.A. No. 215 of 2012 (R) with M.A. No. 71 of 2013
(R ) also held that the case is hopelessly barred by limitation as the instant
application had been filed after four years from the date of order of the
revisional authority.
3. Applicant faced disciplinary proceedings vide memorandum of charges
dated 17.1.2002 (Annexure-A/1) for the charges that he while functioning
as Technical Grade II (C) /Tata committed serious misconduct by indulging
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in encashment of death cum retirement gratuity (DCRG) Cheque No.
404948 dated 20.6.1997 of Rs. 26,150/- of Sri Narendra Nath Ex. G.S./Tata
by falsely introducing himself as Sri Narendra Nath and thereby violated
Para 3 (I) I, II, III of Railway Service Conduct Rules, 1966. As per the
statement of imputation of misconduct an FIR bearing Case No. 153/ 2000
dated 27.11.2000 had been registered by the Branch Manager, SBI
,Jugsalai -JSR Police Station Jugsalai, JSR that Rly. Cheque no.
B404948 dated 20.06.1997 was issued in favour of Sri Narandranath Ex-
G.S./Comml/Tata for a sum of Rs. 26,150/- which had been fraudulently
deposited in SBI, Jugsalai Branch JSR on 01.07.1997 in an account No.
01190007345 (old account no. 36/8679) by an imposter Sri R.K. Biswas,
Technical Grade-II (C&W) Tata after falsely introducing himself as Sri
Narendranath and he had also drawn a sum of Rs. 26000 on 18.07.2000. It
further alleged that he had confessed to the fraudulent act through a
confessional letter to the Branch Manager, SBI, Jugsalai and subsequently
deposited the sum of Rs. 26,200/- in the fake account of Sri Narendra Nath
on 29th September 2000. The Departmental proceedings ended in the
imposition of punishment of his removal from service with compassionate
allowance of 2/3rd of his pension.
The disciplinary authority came to the finding on the basis of
the materials adduced during inquiry and the enquiry report that in the
account opening form photograph of the applicant /petitioner had been
affixed which he had confirmed being that of his. Sri Gopal Govind Paria,
Primary School Teacher who introduced the petitioner to open the new
account, had during departmental proceeding identified the petitioner as
the person who had approached him in the bank to give witness in his
favour to open a savings account in the State Bank of India, Jugsalai
Branch. The petitioner in the fact finding inquiry had stated that he had
deposited the amount of Rs. 26,000 through Sri M.N. Rao and confirmed it
during the departmental proceedings. However, the same was partially
incorrect as the amount was deposited by Tulsi Biswas who identified
himself as elder brother of the petitioner before the bank authorities. This
fact had been mentioned in the Bank Manager's letter dated 23.11.2000.
The copy of the enquiry report was served on the petitioner on 27.12.2003
with advice to submit his final defence statement. He submitted his final
defence statement on 12.1.2004. On consideration of all these materials,
the impugned punishment was imposed upon him.
4. The order of punishment was imposed prior to the judgment of acquittal
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rendered by the learned court of Judicial Magistrate, 1st Class, Jamshedpur
in G.R. case no. 1957/2000, T.R. No.262 of 2005 in which apart from the
petitioner his introducer Govind Gopal Paria was also accused. The
judgment of acquittal is dated 6.7.2005. Learned Trial court has in the
concluding paragraph recorded, interalia, that the prosecution had failed to
prove its case beyond the shadow of reasonable doubts, hence, both
accused persons were thereby acquitted from the charges levelled against
them. The appellate authority also did not find any merit in the appeal
preferred by the applicant which is at page 77 of the supplementary affidavit
of the petition. The appellant had sought reinstatement on the ground that
he had been acquitted from the criminal charges on merits. The revision
preferred by the applicant however stood dismissed by the revisional
authority as per order dated 16.8.2008 (Annexure-5).
In the criminal trial, even as per the case of the applicant as
stated in his rejoinder to the counter-affidavit, the prosecution had failed to
examine the original Narendra Nath who was a charge sheeted witness ,
the investigating officer Sanjay Kumar Gupta, DAO/CKP, S.I. Railway and
the Railway officer who wrote letter to the Bank, Tulsi Biswas had not been
named as a charge sheet witness nor examined, though he had returned
the money. Prosecution had also failed to prove the letter dated 29.9.2000
alleged to be the confessional statement of the applicant. Prosecution failed
to show that the signature of the original Narendra Nath matched with the
signature of Narendra Nath who opened the account in the State Bank of
India, Jugsalai Branch. The signature of the person was not compared
either in the proposal form or in the deposit form etc. PW-6 was declared
hostile. The learned Magistrate therefore, held that the prosecution has
failed to prove its case beyond the shadow of reasonable doubt and
acquitted him. In such circumstances, it has been argued on behalf of
petitioner that the acquittal was not on the basis of benefit of doubt but an
honourable acquittal. An honourable acquittal would entail reinstatement as
the charges in both the disciplinary proceeding and in criminal case are
same and based on the same set of evidence. The railways have also
accepted that in terms of Railway Boards' letter dated 7.7.1995 and
20.10.2002, the departmental case can be reviewed only if the employee is
wholly exonerated/ acquitted in criminal case on merits without any benefit
of doubt or on technical grounds. The orders of the disciplinary authority
have also been challenged on the ground that the disciplinary proceedings
were not fair.
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5. Applicant/petitioner has also urged through statements made at para 17 of
the writ petition that the Senior Divisional Mechanical Engineer was not the
appointing authority and therefore, could not have passed the order of
punishment of removal from service. According to statements made at para
17 of writ petition D.R.M. was the competent authority. However, it is
pertinent to mention here that in the appeal /representation made by the
petitioner on 26th May, 2006 before the Divisional Railway Manager, at one
place at sub-para 15 it was stated that senior Divisional Mechanical
Engineer is chief of our division in Mechanical Department who has passed
the order in the disciplinary enquiry in favour of him. At sub-para 19, he has
further stated that his appointment letter was issued by senior Divisional
Mechanical Engineer , CNW./CKP not Divisional Mechanical Engineer
which can be seen from his service sheet. The apparent contradiction in the
stand of the applicant so far as the competent authority is concerned, is
quite visible. Apart from this, no document to support the statement made at
para 17 of the writ petition has either been brought on record by the
applicant/petitioner herein. On the other hand, the respondents through
their statements made in paragraph no. 23 of the counter-affidavit, have
denied the statements made in paragraph nos. 16 and 17 of the writ
application.
6. The legal issue whether departmental proceeding can continue on the
same set of charges in which a criminal proceeding has also been initiated
is no longer res-integra. The preposition of law is stated in the judgment
relied upon by the learned counsel for the petitioner in the case of Capt. M.
Paul Anthony vs. Bharat Gold Mines Ltd. & another reported in (1999)3
SCC 679 paras 21, 26,27,30 and 34. The Apex Court upon survey of the
precedents on the point reiterated the same in the case of Karnataka
SRTC V. M.G. Vittal Rao reported in (2012)1 SCC 442. The underlying
principle laid down is that the purpose of departmental inquiry and of
prosecution are two different and distinct aspects. The criminal prosecution
is launched for an offence for violation of a duty, the offender owes to the
society or for breach of which law has provided that the offender shall make
satisfaction to the public. So crime is an act of commission in violation of
law or of omission of public duty. The departmental inquiry is to maintain
discipline in the service and efficiency of public service. The Apex Court in
the case of M. G. Vittal Rao has also made reference to the judgment
rendered by it earlier in the case of Pandiyan Roadways Corpn. Ltd. Vs.
N Balakrishnan reported in (2007)9 SCC 755 where it reconsidered the
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issue taking into account earlier judgment and observed as under :-
"23. In Pandiyan Roadways Corpn. Ltd. V. N. Balakrishnan, this Court
reconsidered the issue taking into account all earlier judgments and observed
as under (SCC pp. 766-67, paras 21-22)
"21. There are evidently two lines of decisions of this
court operating in the field. One being the cases which would come
within the purview of Capt. M. Paul Anthony V. Bharat Gold Mines Ltd
and G.M. Tank v. State of Gujarat. However, the second line of decision
show that an honourble acquittal in the criminal case itself may not be
held to be determinative in respect of order of punishment meted out to
the delinquent officer, inter alia, when: (i) the order of acquittal has not
been passed on the same set of facts or same set of evidence; (ii) the
effect of difference in the standard of proof in a criminal trial and
disciplinary proceeding has not been considered (see Commr. Of Police
v. Narender Singh), or; where the delinquent officer was charged with
something more than the subject-matter of the criminal case and/or
covered by a decision of the civil court (see G.M. Tank , Jasbir Singh v.
Punjab & Sind Bank and Noida Entrepreneurs Assn. v. Noida, SCC at p.
394, para 16).
22......'41. We may not be understood to have laid down a
law that in all such circumstances the decision of the civil court or the
criminal court would be binding on the disciplinary authorities as this
Court in a large number of decisions points out that the same would
depend upon other factors as well. (see e.g. Krishnakali Tea Estate and
RBI v. S.Mani) Each case is, therefore, required to be considered on its
own facts. (see also Ram Tawekya Sharma v. State of Bihar and Roop
Singh Negi v. Punjab National Bank.)"
At paragraph no. 24 of the report it was held that there can be
no doubt regarding the settled legal proposition that as the standard of
proof in both the proceedings is quite different and the termination is not
based on mere conviction of an employee in a criminal case, the acquittal
of the employee in a criminal case cannot be the basis of taking away the
effect of departmental proceedings. Nor can such an action of the
department be termed as double jeopardy. It was further observed that the
judgment of Apex Court in the case of Capt. M Paul Anthony, does not lay
down the law of universal application. Facts, charges and nature of
evidence, etc. involved in an individual case would determine as to whether
decision of acquittal would have any bearing on the findings recorded in the
domestic inquiry.
The Apex Court further went on to observe at para 25 of the
report that once the employer has lost the confidence in the employee and
the bonafide loss of confidence is affirmed, the order of punishment must
be considered to be immune from challenge, for the reason that
discharging the office of trust and confidence requires absolute integrity,
and in a case of loss of confidence, reinstatement cannot be directed. [See:
(1972)1 SCC 814 Air India Corpn. v. V. A. Rebellow, (1972)4SCC 569,
Francis Klein & Co. (P) Ltd. V. Workmen, (2005)2 SCC 481 BHEL. V. M.
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Chandrasekhar Reddy].
7. The ratio rendered by the Apex Court in the case of Kanhaiya Lal Agrawal
Vs. Gwalior Sugar Co. Ltd. Reported in (2001) 9 SCC 609 was also
referred to at paragraph no. 26 whereunder the Court had laid down the
test for loss of confidence. To find out as to whether there was bonafide
loss of confidence in the employee, thus observed that the following
aspects have to be examined:- (i) the workman is holding the position of
trust and confidence; (ii) by abusing such position, he commits an act which
results in forfeiting the same; and (iii) to continue him in
service/establishment would be embarrassing and inconvenient to the
employer, or would be detrimental to the discipline or security of the
establishment. Loss of confidence cannot be subjective, based upon the
mind of the management. Objective facts which would lead to a definite
inference of apprehension in the mind of the management, regarding
trustworthiness or reliability of the employee, must be alleged and proved.
[See: (1997)6 SCC 271 Sudhir Vishnu Panvalkar v. Bank of India].
In the case of SBI Vs. Bela Bagchi reported in (2005)7
SCC 435, the Apex Court had repelled the contention that even if by the
misconduct of the employee the employer does not suffer any financial
loss, he can not be removed from service in a case of loss of confidence.
Reliance has been placed upon its earlier judgment rendered in the case of
Disciplinary Authority -cum- Regional Manager Vs. Nikunja Bihari
Patnaik reported in (1996)9 SCC 69.
From the ratio rendered by the Apex Court as referred to herein
above, it can, therefore, be easily said that the departmental proceedings
on the same set of charges could have continued against the employee in
question even if he was facing criminal prosecution. In the facts of the
present case, departmental proceeding was concluded before the judgment
of acquittal was rendered.
8. Learned counsel for the petitioner has laboured to question the findings of
fact rendered in the departmental proceeding as affirmed by the appellate
and revisional authority and by learned Central Administrative Tribunal as
well. However, we may at this stage, observe that the scope of judicial
review relates to the decision making process and whether the findings of
the disciplinary authority are based on some evidence or not. The Court or
Tribunal cannot re-appreciate the evidence and substitute its own finding.
Reliance may be placed on the case of B.C. Chaturvedi Vs. Union of
India reported in 1996 (1) LLJ 1231. While exercising jurisdiction under
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Article 226 of the Constitution of India, the High Court does not act as
appellate authority. Its jurisdiction is circumscribed by limits of judicial
review to correct errors of law or procedural errors leading to manifest in-
justice or violation of principles of natural justice. Judicial review is not akin
to the decision of a case on merit as an appellate authority.
The findings of the disciplinary authority as also referred to in
the impugned order by the learned Central Administrative Tribunal goes to
show that the death-cum-retiral cheque bearing No. 404948 dated
20.06.1997 issued in the name of one Narendra Nath was deposited in the
Saving Account no. 0110007345 in the SBI, Jugsalai Branch, Tata on
01.07.1997 after the account was opened on 30.06.1997 in the name of the
applicant/employee. The photograph of the employee was pasted on the
account opening form. The person who introduced applicant, namely, Sri
Gopal Govind Pariya, Primary School Teacher had himself deposed during
the inquiry that he had introduced the applicant in opening of the new bank
account. Other material facts borne on record during the fact finding inquiry
were also adduced as material evidence during the departmental
proceedings in which the applicant duly participated. As a matter of fact, the
applicant in reply to question no. 19 in the inquiry had categorically stated
that natural justice had been given to him. This statement contained at
paragraph 8(j) of the counter-affidavit to that effect is not disputed by the
petitioner. As such, the disciplinary authority proceeded to hold the
applicant guilty of the charges which were of serious nature. The
allegations that the disciplinary inquiry was not conducted in the fair
manner, therefore, stand refuted in view of the aforesaid discussions.
9. Learned senior counsel for the petitioner has strenuously argued that since
it was an honourable acquittal of the applicant he was required to be
reinstated in service.
10. Learned counsel for the respondents-Railway has defended the impugned
order and submitted that scope of judicial review is limited Under Article
226 of Constitution of India. He submits that finding of fact recorded by the
disciplinary authority in appeal or revision cannot be scrutinized in the
nature of the appeal by this Court. He further submits that the disciplinary
authority had come to a finding of guilt and passed the order of punishment
on 5th October, 2004, much before the judgment of acquittal rendered by
the learned Judicial Magistrate, 1st Class, Jamshedpur on 6th July, 2005. All
material facts and grounds of challenge raised by the applicant had been
duly considered by the learned Tribunal and negatived by a well-reasoned
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order, which needs no interference.
11. We may profitably quote the opinion of the Apex Court as contained in the
case of Deputy Inspector General of Police and another vs.
S. Samuthiram reported in (2013)1 SCC 598, relied upon by counsel for
the petitioner herself. Para 24, 25 and 26 of the report containing opinion of
the Apex Court is quoted hereunder :-
Honourable acquittal
"24. The meaning of expression "honorable acquittal" came up for
consideration before this Court in RBI V. Bhopal Singh Panchal. 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 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
this Court quoted with approval the views expressed by Lord Williams, J.
in Robert Stuart Wauchope V. Emperor which is as follows: ( Raghava case, SLR p. 47, para 8) "8. ....'The expression "honorably 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 the government authorities and by the Magistrate. Further, we decided that the appellant had not misappropriated the monies referred to in the charge. It is thus clear that the effect of our judgment was that the 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 pp 188-89).
26. As we have already indicated, in the absence of any provision in the service rules for reinstatement, if an employee is honourably acquitted by a criminal court, no right is conferred on the employee to claim any benefit including reinstatement. Reason is that the standard of proof required for holding a person guilty by a criminal court and the enquiry conducted by way of disciplinary proceeding is entirely different. In a criminal case, the onus of establishing the guilt of the accused is on the prosecution and if it fails to establish the guilt beyond reasonable doubt, the accused is assumed to be innocent. It is settled law that the strict burden of proof required to establish guilt in a criminal court is not required in a disciplinary proceedings and preponderance of probabilities is sufficient. There may be cases where a person is acquitted for technical reasons or the prosecution giving up other witnesses since few of the other witnesses turned hostile, etc. In the case on hand the prosecution did not take steps to examine many of the crucial witnesses on the ground that the complainant and his wife turned hostile. The court, therefore, acquitted the accused giving the benefit of 9 doubt. We are not prepared to say that in the instant case, the respondent was honourably acquitted by the criminal court and even if it is so, he is not entitled to claim reinstatement since the Tamil Nadu Service Rules do not provide so.
(Emphasis supplied) In the judgment rendered in the case of S. Bhaskar Reddy and another Vs. Superintendent of Police and another reported in (2015) 2 SCC 365 cited by the learned Senior Counsel for the petitioner, the same principles laid down on the meaning of expression 'honourable acquittal' as referred to in the case of S. Samuthiram (supra) have been relied upon by the Apex Court. As such, the issue at hand is to be examined in the light of the principles laid down by the Apex Court regarding the meaning of expression 'honourable acquittal'.
12. It follows from the opinion quoted above that mere acquittal does not entitle an employee to reinstatement in service, unless it is held to be honourable. Though, the expression "honourable acquittal" is not defined precisely in the Code of Criminal Procedure or the Penal Code but, the Apex Court at para 24 (supra) quoted above, proceeded to observe that when an 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 is honourably acquitted. The Apex Court further at paragraph no. 26 quoted above, observed that there may be cases where a person is acquitted for technical reasons or the prosecution giving up other witnesses since few of the other witnesses turned hostile, etc. In the case on hand prosecution had not taken steps to examine many of the crucial witnesses on the ground that complainant and his wife have turned hostile. The court, therefore, acquitted the accused giving the benefit of doubt. The Apex Court therefore, was of the opinion that the respondent cannot be said to have been honourably acquitted by the criminal court.
13. In the facts of the present case and from the judgment of the learned Judicial Magistrate, 1st Class, Jamshedpur dated 6.7.2005 rendered in the case of the applicant, it is apparent that the prosecution had failed to examine the original Narendra Nath who was a chargesheeted witness, the investigating officer Sanjay Kumar Gupta, DAO/CKP ; Tulsi Biswas who was not even included as charge sheeted witness, though he was alleged to be the elder brother of the applicant and had deposited the cheque in the account opened at SBI, Jugsalai Branch. Other material documents had also not been adduced during the evidence, neither did prosecution take efforts to compare the 10 signature of Narendra Nath in the bank account opening or deposit form with his original signature. PW-6, on the other hand, had been declared hostile. It therefore cannot be said that the accused had been acquitted after full consideration of the prosecution evidence and as such prosecution had miserably failed to prove the charges levelled against the accused. It cannot either be said that there was a hot contest in the criminal trial in such circumstances which ended in acquittal of the applicant. It is also obvious from the operative portion of the judgment rendered by the judicial magistrate that the prosecution has failed to prove the case beyond shadow of reasonable doubt. The accused person got acquitted consequent thereto. The acquittal of the applicant cannot be said to be honourable in that sense. The judgment relied upon by the learned senior counsel for the petitioner therefore cannot come to the aid of the applicant. We also do not find any convincing explanation for the delay of four years, on the part of the applicant, in filing the Original Application in 2012 when revisional authority had rejected his revision application on 16th August, 2008 itself. The applicant seems to have conjured up the explanation on the basis of his representation made before the National Commission for Scheduled Caste which had referred the matter for consideration through letter dated 18.3.2009 (Annexure-6) and Annexure- 8 dated 21.5.2010. The applicant failed to invoke the statutory remedy available under the Administrative Tribunal Act, 1985 within the period of one year as per Section 21 thereof. Mere representation before the National Commission for Scheduled Caste, in such circumstances, or the plea of mental tension could not amount to sufficient explanation of delay in filing the O.A.. In such circumstances, the learned tribunal had reason to hold that Original Application was hopelessly barred by limitation.
14. On consideration of the entire facts and reasons recorded hereinabove, this court does not find any reason to interfere in the impugned orders dated 20.02.2014 passed in O.A. No. 215/2012 ( R) with M.A. No. 71/2013 ( R) by the learned Central Administrative Tribunal, Circuit Bench at Ranchi. Accordingly, the instant writ petition stands dismissed.
(Aparesh Kumar Singh,J) (Ratnaker Bhengra,J) Jharkhand High Court, Ranchi Dated 13th June, 2018 Sharda/KNR/ NAFR