Harish Chandra Yadav vs C.A.T Lucknow And 3 Ors. on 7 April, 2017

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Allahabad High Court

Harish Chandra Yadav vs C.A.T Lucknow And 3 Ors. on 7 April, 2017

1. Heard Sri Umesh Kumar Srivastava, learned counsel for petitioner. None appeared on behalf of respondents though the case has been called in revised. Hence, we proceed to hear and decide this writ petition after hearing learned counsel for petitioner.

2. This writ petition under Article 226 of Constitution of India is directed against judgment and order dated 18.11.2005 passed by Central Administrative Tribunal, Lucknow Bench, Lucknow (hereinafter referred to as "Tribunal") in Original Application (hereinafter referred to as "O.A.") No. 316 of 2001.

3. Facts in brief giving rise to present writ petition may be narrated as under.

4. Petitioner entered Railway Service having been appointed on 03.07.1982 as Parcel Clerk and posted in Allahabad Division, Northern Railway (hereinafter referred to as "NR"). In 1983, he was transferred to Lucknow Division. While he working as Booking Clerk at Railway Station Akbarpur, it was found that certain forged duplicate tickets were being sold from Booking Counter, hence, a First Information Report (hereinafter referred to as "F.I.R.") being Case Crime No. 2 of 1993 under Section 420 I.P.C. read with Section 143 of Railway Act, 1988 (hereinafter referred to as "Railway Act, 1988") and 7/13 of Prevention of Corruption Act, 1988 (hereinafter referred to as "P.C. Act, 1988") was lodged at Police Station G.R.P., Faizabad.

5. While the matter was under investigation by Police, disciplinary proceedings were also initiated under Rule 9 of Railway Servants (Discipline and Appeal) Rules, 1968 (hereinafter referred to as "Rules, 1968") and charge-sheet dated 08.02.1993 was served upon petitioner containing following charge:-

**fnukad 06-02-93 dks Jh gjh'k pUnz ;kno] cqfdax DydZ@vdcjiqj us vdcjiqj ls yqf/k;kuk LVs'ku ds 14 fVdV ua0 70613 ls 21] 24] 27 ls 30 rd ds fVdV tkjh fd;k tks fd bl la[;k ds fVdV vHkh rd LVkd esa iM+s gq, gS tks fd f[kM+dh ij ugha fn;s x;s FksA bl izdkj ;g fVdV xyr ik;s x;s ftldk mn~ns'; jsyos dks /kks[kk nsdj xyr bl izdkj bUgksaus jsy lsod vkpkj lafgrk ds fu;e 3-1 ¼A½ ¼AA½ ¼AAA½ dk mYya?ku fd;kA** "On 06.02.93, Shri Harish Chandra Yadav, Booking Clerk/ Akbarpur issued 14 tickets from Ticket Nos. 70613 to 21, 24, 27 to 30 for journey from Akbarpur to Ludhiana Station whereas tickets of these numbers are still lying in the stock which were not issued on booking window. In this manner, these tickets were found forged, intention thereof was to cheat the Railways and to earn the money through unfair means.

In this manner, he has violated Rule 3.1 (I) (II) (III) of the Railway Servants Conduct Code." (emphasis added) (English Translation by Court)

6. Inquiry Officer completed disciplinary proceedings and submitted report on 31.07.1993 holding charge proved. Copy of inquiry report was forwarded to petitioner vide letter dated 04.08.1993 giving him opportunity to make representation, if any, within 15 days to Senior Divisional Commercial Manager (hereinafter referred to as "Disciplinary Authority").

7. Petitioner submitted his representation and thereafter, punishment order was passed on 22.09.1993 by Disciplinary Authority dismissing petitioner from service w.e.f. 22.09.1993. Thereagainst, petitioner's appeal memo dated 04.11.1993 was rejected by Divisional Railway Manager, Lucknow (Appellate Authority) vide order dated 21.12.1993. Petitioner's revision has also been rejected by Chief Commercial Manager, NR, Baroda House, New Delhi which was communicated vide letter dated 08.08.1994.

8. Thereafter, punishment as well as appellate and revisional orders were challenged by petitioner in O.A. No. 191 of 1995 which was disposed of vide judgment dated 11.10.2000 permitting petitioner to make representation to General Manager (Personnel) and he was directed to decide petitioner's representation in the light of Railway Board's Circular No. R.B.E. 54/95 (No. E(D&A) 95 RG-64 dated 07.06.1995. Consequently, matter was again examined and Chief Commercial Manager/G, NR, Baroda House, New Delhi vide order dated 30.03.2001/03.04.2001 modified punishment from 'Dismissal' to "Compulsory Retirement", made effective from the date when earlier order of dismissal was passed and that is how petitioner's representation resulted in partial success reducing quantum of punishment.

9. Now this order dated 31.03.2001/03.04.2001 imposing punishment of "Compulsory Retirement" from service was again challenged in O.A. No. 316 of 2001 but the same has been dismissed vide judgment dated 18.11.2005, impugned in this writ petition.

10. Another relevant fact which has transpired pursuant to F.I.R. may also be resumed hereat. After investigation, police submitted charge-sheet dated 08.10.1993. Trial was held registering case as Special Case No. 2 of 1994 under Section 420 I.P.C., Section 143 of Railway Act and 7/13 of P.C. Act, 1988. Special Sessions Judge, Faizabad found that tickets seized by authorities, though duplicate or forged, but prosecution failed to prove beyond doubt that those tickets were sold by petitioner to different passengers and in that view of the matter, acquitted petitioner vide judgment dated 17.04.1996, in the offences under the aforesaid Sections, in which he was tried.

11. Challenging order of punishment, now modified as compulsory retirement, learned counsel for petitioner has contended that criminal proceedings in the self-same charge were going on. Departmental inquiry on the same charge could not have been held. Secondly, he contended that once petitioner was acquitted in criminal trial, his guilt and punishment in departmental proceedings on the same charge cannot be sustained. It is patently illegal and amounts to his re-trial and also sitting over the judgment of court of law. Thirdly, it is contended that passengers who are said to have purchased forged tickets from petitioner were not examined before Inquiry Officer and petitioner was not given any opportunity of cross-examination. Witnesses relied in support of charge examined before Inquiry Officer were not independent witnesses and, in fact, independent and material witnesses were not examined at all. Hence, it cannot be said that charge was proved on the basis of any valid and admissible evidence in departmental inquiry. Lastly, it is contended that entire proceedings conducted by Disciplinary Authority was in violation of Rules, 1968 and all these aspects have been ignored by respective Appellate and Revisional Authorities as also Tribunal. Hence, entire proceedings are vitiated in law resulting in order of punishment liable to be set aside.

12. The question, whether criminal proceedings as well as departmental proceeding can go on simultaneously has been considered time and again and there are enough authoritative pronouncements on this aspect. It has been held repeatedly that a criminal case as well as departmental proceeding can go on together.

13. It is now well settled that departmental proceedings can proceed simultaneously with criminal proceedings and there is no bar as such therein. In Capt. M. Paul Anthony Vs. Bharat Gold Mines Ltd. & Another, (1999) 3 SCC 679, it has been held that departmental as well as criminal, both the proceedings, can go on simultaneously as there is no bar in their being conducted simultaneously. The question whether during pendency of criminal proceeding, departmental proceeding should be stayed depends upon the facts and circumstances of individual case.

14. In Ajit Kumar Nag Vs. General Manager I.O.C. JT 2005 (8) SC 425, Court said that the procedure followed in both the cases as well as the subject matter of departmental enquiry and criminal proceeding has different scope and it cannot not be said, when a criminal proceeding is going on a particular criminal charge, in that regard, departmental proceeding cannot be allowed to proceed. Same view has been reiterated subsequently in Chairman/Managing Director TNCS Corporation Ltd. & others Vs. K. Meerabai JT 2006 (1) SC 444; Suresh Pathrella Vs. Oriental Bank of Commerce AIR 2007 SC 199 and; Union of India & others Vs. Naman Singh Shekhawat 2008 (4) SCC 1.

15. Referring to Capt. M. Paul Anthony (supra) in Managing Director, State Bank of Hyderabad & another Vs. P. Kata Rao, JT 2008 (4) SC 577, Court has observed that legal principle enunciated that on the same set of facts delinquent shall not be proceeded in a departmental proceeding and in a criminal proceeding simultaneously, has been deviated from. It is also said that dicta laid down in Capt. M. Paul Anthony (supra), though has remained unshaken but its applicability has been found to be dependent on the facts and situations obtained in each case.

16. Similarly, Noida Entrepreneurs Assn. Vs. NOIDA & others, JT 2007 (2) SC 620, Court has culled out following conclusions deducible from various judgments as noticed in para 22 of the judgment in Capt. M. Paul Anthony (supra), namely :

"(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 involved 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 chargesheet.

(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."

17. In Indian Overseas Bank Vs. P. Ganesan & others, AIR 2008 SC 553, Court held, where a prayer is made that so long as criminal proceedings are going on, departmental proceeding may not be proceeded, Court must record a finding that non-grant of stay on departmental proceeding would not only prejudice delinquent officer, but matter also involve a complicated question of law. Nothing of that sort has been shown by learned Counsel for petitioner in the case in hand.

18. Following the aforesaid authorities, this Court has taken a similar view in Priti Chauhan vs. State of U.P. & others, 2008 (9) ADJ 388.

19. Following Capt. M. Paul Anthony (supra); Ajit Kumar Nag Vs. General Manager I.O.C. (supra) and; Noida Entrepreneurs Assn. Vs. NOIDA & others, JT (supra), Court has expressed same view in Avinash Sadashiv Bhosale (D) Thr. L.Rs. Vs. Union of India (UOI) and Ors. (2012) 13 SCC 142 and; The Divisional Controller, KSRTC Vs. M.G. Vittal Rao (2012) 1 SCC 442.

20. In the present case, petitioner was charged and tried in Session Trial No. 2 of 1994 under Section 7/13 of P.C. Act, 1988, Section 143 of Railway Act, 1988 and Section 420 I.P.C. but charge and disciplinary proceedings were that he was distributing tickets on 06.02.1993 and certain ticket numbers which continued to remain in stock were found to have issued to passengers and those tickets were illegal and this issuance of tickets caused loss to revenue of Railway, illegally, and for earning profits by petitioner. Charge in the trial as levelled against petitioner though arose from the same incident but was different.

21. In Avinash Sadashiv Bhosale (D) Thr. L.Rs. Vs. Union of India (UOI) and Ors. (supra), Court referred to its earlier judgment in Ajit Kumar Nag Vs. General Manager I.O.C. (supra) and said that two proceedings, criminal and departmental, are entirely different. They operate in different fields and have different objectives. The object of criminal trial is to inflict appropriate punishment upon offender, while purpose of disciplinary inquiry proceeding is to deal with delinquent departmentally and to impose penalty in accordance with service rules. In a criminal trial incriminating statement made by accused in certain circumstances or before certain Officers is totally inadmissible in evidence. Such strict rules of evidence and procedure would not apply to departmental proceedings. The degree of proof which is necessary to order conviction is different from the degree of proof necessary to record commission of delinquency. Rule relating to appreciation of evidence in two proceedings is also not similar. In criminal law, burden of proof is on prosecution and unless prosecution is able to prove guilt of accused beyond reasonable doubt, he cannot be convicted by a Court of law. In a departmental inquiry, penalty can be imposed on the delinquent Officer on a finding recorded on the basis of preponderance of probability. Court then further said "acquittal of appellant by a Judicial Magistrate, therefore, does not ipso facto absolve him from liability under disciplinary jurisdiction of Corporation".

22. We, therefore, find ourselves unable to uphold contention of appellant, since he was acquitted by a Criminal Court, impugned order of punishment passed in departmental inquires be quashed.

23. Learned counsel for petitioner placed reliance on G.M. Tank Vs. State of Gujarat and others (2006) 5 SCC 446 but from reading of this judgment, we find that therein employee was prosecuted under Section 5(1)(e) read with Section 5(2) of P.C. Act, 1947. Court found that there was not an iota of evidence against employee to hold him guilty of offence under Act, 1947. Employer did not produce any evidence in support or about alleged charge levelled against employee. Aforesaid judgment, therefore, is founded on the facts of that case and we find that it will not help petitioner in the present case.

24. On the contrary, in Avinash Sadashiv Bhosale (D) Thr. L.Rs. Vs. Union of India (UOI) and Ors. (supra), Court pointed out to a different aspect that in the conduct of criminal trial, matter is entirely in the hands of prosecution and a complainant or informant has little role to play after having registered First Information Report. Court therein found that bank had little or no role apart from rendering assistance to prosecuting agencies. It, therefore, observed:-

"In our opinion, the failure of the prosecution in producing the necessary evidence before the trial court can not have any adverse impact on the evidentiary value of the material produced by the Bank before the Inquiry Officer in the departmental proceedings. Before the Inquiry Officer, the Bank had placed on the record all the relevant documents which clearly establish that the appellant had exceeded his discretionary powers in purchasing the cheques and issuing demand drafts to show undue favour to the three construction companies named in the charge sheet. In view of the above, the findings recorded by the Inquiry Officer can not be said to be based on no evidence. It is a settled proposition of law that the findings of Inquiry Officer cannot be nullified so long as there is some relevant evidence in support of the conclusions recorded by the Inquiry Officer." (emphasis added)

25. Court also said that findings of Inquiry Officer unless can be challenged on the basis of no evidence but on the mere ground of acquittal by a Criminal Court, findings of Inquiry Officer in departmental proceedings are not to be nullified.

26. In the present case, findings recorded by Enquiry Officer have not been shown as based on no evidence. In such circumstances, petitioner cannot take any advantage of the findings of innocence recorded by criminal court. The 'clean chit' given in Criminal Trial was influenced by failure of prosecution to lead necessary evidence. No advantage of the same can be taken by the petitioner in the departmental proceedings.

27. Despite repeated query, learned counsel for petitioner could not show that findings of Inquiry Officer are based on no evidence or that there is any otherwise flaw in departmental inquiry having effect of denial of adequate opportunity of defence.

28. In the circumstances, we find no merit and also no reason to interfere with the judgment of Tribunal, impugned in this petition.

29. Dismissed. Interim order, if any, stands vacated.

Order Date :- 7.4.2017 Shubham

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Allahabad High Court