Allahabad High Court
Sri Radhey Shyam Gautam Son Of Sri Ram ... vs U.P. Public Services Tribunal, State Of ... on 28 April, 2006
Author: R.K. Agrawal
Bench: R.K. Agrawal, Rajes Kumar
JUDGMENT R.K. Agrawal, J.
1. By means of the present writ petition filed under Article 226 of the Constitution of India, Sri Radhey Shyam Gautam, seeks the following reliefs:
(a) issue a writ, order or direction in the nature of certiorari calling for the record and quashing the impugned orders dated 12th December, 1984, 25.4.1975 and 13th April, 1978 passed by respondent Nos. 1, 3, and 4 (Annexed as Annexures Nos. "1", "2" and "3" to the writ petition).
(b) issue a suitable writ, order or direction in the nature of mandamus commanding the respondents to declare the entire disciplinary proceedings against the petitioner as null and void and directing the respondent No. 3 to reinstate the petitioner with full past salary and without any break in service and further directing to give all the service benefits to which the petitioner may be entitled on account of the continuity in service.
(c) issue any other suitable writ, order or direction which this Hon'ble Court may deem fit and proper in the facts and circumstances of the case.
(d) issue an order awarding costs.
2. Briefly stated the facts giving rise to the present petition are as follows:
According to the petitioner, he was appointed as Z.A.C. Clerk in Tahsil Khair, district Aligarh on 10th February, 1954. He was subsequently appointed as Naib Nazir in Tahsil Khair where he served upto 17th July, 1972. He was transferred on the same post from Tahsil Khair to Tahsil Atrauli on 17th July, 1972. The petitioner was, however, placed under suspension vide order dated 24th November, 1972. Two first information reports dated 19th December, 1972 and 30th January, 1973 were also lodged against the petitioner for alleged embezzlement. The petitioner was charge sheeted and tried in Criminal Case Nos. 271 of 1979 and 272 of 1979. The disciplinary proceedings were initiated against the petitioner and he was served with a charge sheet on 10th March, 1973 wherein eleven charges have been levelled against him. According to the petitioner, he made an application before the Enquiry Officer to stay the departmental proceedings till the decision of the criminal cases filed against him, as the disclosure of the defence by the petitioner in reply to the charge sheet would seriously prejudice the petitioner in the criminal cases and as in substance the charges against the petitioner were the same as were the allegations made in the F.I.Rs. The application was, however, rejected by the Enquiry Officer. The petitioner thereafter gave two applications to the Enquiry Officer praying that he be supplied the documents which were mentioned as evidence in support of the charges levelled against him in the charge sheet and he be permitted to inspect certain original records so as to enable him to give a complete reply to the charge sheet. According to the petitioner, he was neither supplied the copies of the documents nor the records were shown to him by the Enquiry Officer. It is further alleged by the petitioner that the then Sub Divisional Officer, Khair was prejudiced against him as he was instrumental in the transfer of the petitioner upto the filing of criminal cases and the submission of charge sheet against the petitioner and getting himself appointed as Enquiry Officer. The petitioner made an application before the Collector, Aligarh for changing the Enquiry Officer and the Collector vide order dated 17th April, 1973 appointed Sub-Divisional Officer, Atrauli as new Enquiry Officer. The new Enquiry Officer allowed the inspection of some records but, according to the petitioner, records mentioned at serial Nos. 7, 12 and 15 were not allowed to be inspected, which were very relevant and on the basis of which the prosecution was launched. The Enquiry Officer submitted his report on 7th September, 1973. Acting on the basis of the said report, the Collector, Aligarh vide order dated 21th September, 1973 directed for issuance of show cause notice to the petitioner calling upon him as to why he be not removed from the services. The show cause notice was issued on 10th October, 1973. It is alleged by the petitioner that the report of the Enquiry Officer was not sent along with the show cause notice. The petitioner challenged the validity of the show cause notice by filing a writ petition before this Court, being Civil Misc Writ Petition No. 7758 of 1973, which was dismissed vide order dated 30th April, 1974 as premature. After the dismissal of the writ petition, the petitioner once again applied for stay of the departmental proceedings against him before the Collector, Aligarh as the criminal cases on the same charges were going on against him but the said request was not accepted. He moved an application on 31st March, 1975 before the Collector, Aligarh to supply him the relevant documents relied upon as evidence in support of the charges and also to permit him to inspect the records which had not been allowed to be inspected by the Enquiry Officer. The Collector, Aligarh had rejected the said application and vide order dated 25th April, 1975 passed an order of punishment of dismissal from service. Feeling aggrieved the petitioner preferred an appeal before the Commissioner, Agra Division, Agra, who vide order dated 13th April, 1978 had dismissed the appeal. The petitioner was acquitted in criminal cases by two separate judgments and orders dated 22nd December, 1979 whereupon the petitioner filed two separate applications before the Collector, Aligarh and the Commissioner, Agra Division, Agra to review their decisions in the light of the acquittal recorded in the criminal cases. The Collector, Aligarh vide orders dated 7th May, 1981 had rejected the review application. Thereafter the petitioner preferred the claim petition before the U.P. Public Services Tribunal, Lucknow being Claim Petition No. 381(I)/1981. The Tribunal vide order dated 12.12.1984 had dismissed the claim petition. The order of dismissal from service as passed by the Collector, Aligarh and confirmed in appeal by the Commissioner, Agra Division, Agra and the order dated 12.12.1984 passed by the Tribunal rejecting the claim petition are under challenge in the present petition on the grounds: (i) that the said orders suffer from error of law, apparent on the face of record; (ii) the Tribunal having found that the application of the petitioner for supply of the copies of the documents was rejected should legally have held that the departmental enquiry against the petitioner was vitiated by non-compliance of the principles of natural justice as also contrary to the Rules; (iii) the petitioner has not been given effective opportunity to defend himself at the enquiry, therefore, the enquiry was vitiated in law and the punishment given to him on that basis is liable to be quashed; (iv) the petitioner having not been allowed to inspect the relevant records for filing a reply to the charge-sheet the entire proceedings of enquiry against him stands vitiated being violative of principles of natural justice and the petitioner has suffered great prejudice; (v) the departmental proceedings ought to have been stayed in view of the pendency of the criminal proceedings which has resulted in mis-carriage of justice; and (vi) further, the petitioner having been acquitted by the criminal Court, the departmental proceedings which were based on the same charges ought to have been annulled in review and even otherwise.
3. We have heard Sri Manish Goyal, learned Counsel for the petitioner and Sri R.K. Awasthi, learned Standing Counsel appearing for the respondents.
4. Learned Counsel for the petitioner submitted that the Sub Divisional Officer, Khair where the petitioner was earlier posted was prejudiced against him and he was instrumental in getting the petitioner transferred to another place , lodging of the F.I.R.s and initiation of the disciplinary proceedings and also getting him appointed as the Enquiry Officer, which speaks of his mala fide action. Moreover, the Enquiry Officer ought to have stayed the enquiry till finalisation of the criminal trial as the charges levelled against the petitioner in the departmental proceedings as also in the F.I.R.s were the same. According to Sri Goyal, the petitioner had made an application for supplying the documents relied upon in the charge sheet as also for the inspection of the documents but neither the documents asked for were supplied nor full inspection was allowed which violated the principles of equity, fair play and natural justice. According to him, the witnesses were also not examined. The enquiry report was not sent along with the show cause notice causing serious prejudice to the petitioner and depriving him of submitting his reply. In any event, he submitted that on the charges which have been levelled and found to have been proved, the extreme punishment of dismissal from service could not have been imposed upon him. In support of his submission, he has relied upon the following decisions:
1. Kashinath Dikshita v. Union of India .
2. B.C. Chaturvedi v. Union of India and Ors. .
3. Capt. M. Paul Anthony v. Bharat Gold Mines Ltd. and Anr. .
4. U.P. State Road Transport Corporation and Ors. v. Mahesh Kumar Mishra and Ors. .
5. Sri R.K. Awasthi, learned Standing Counsel, in reply Submitted that the it is not necessary in all cases where criminal prosecution or first information report has been lodged against the delinquent employee, departmental proceedings as a matter of right has to be stayed. It is only in exceptional cases and only when the charges in both the cases are same that the departmental proceeding can be stayed till the finalisation of the criminal case otherwise not. According to him, in the present case the first information report was lodged only in respect of embezzlement of amount and not in respect of other charges levelled against the petitioner in the charge sheet and, therefore, the inquiry Officer was fully justified in not staying the enquiry. He further submitted that full opportunity to defend was given in the aforementioned case by the Enquiry Officer as also the disciplinary authority and the petitioner cannot be said to have suffered any prejudice. According to him, the Enquiry Officer has found the charges to have been proved and taking into consideration the nature of the charges, the disciplinary authority had rightly awarded the punishment of dismissal from service, which has been confirmed in appeal as also by the Tribunal. He further submitted that this Court in proceeding under Article 226 or 227 of the Constitution of India ought not to interfere with the findings recorded by the Enquiry Officer as also the punishment imposed as they do not suffer from any illegality, He further submitted that the petitioner only prayed for staying the departmental proceedings and in reply did not file any explanation and it is incorrect on the part of the petitioner to state that the copy of the enquiry report was not supplied to him along with the show cause notice. The full copy of the report of the Officer was supplied to the petitioner along with the show cause notice but he did not submit any reply.
6. Having given our anxious consideration to the various plea raised by the learned Counsel for the petitioners, we find that the following 11 charges were levelled against the petitioner:
(i) That the petitioner did not give complete charge on his transfer from Khari to Atrauli on 17.7.72.
(ii) That Sri Raghu Raj Singh, Collection Amin had realized Rs. 4,850/- from one Sri Ramesh Chandra Sharma on 23.3.68 and he gave this amount to the petitioner on 26.3.68, but it was not deposited by him and he had committed an embezzlement of this amount.
(iii) That the petitioner did not deposit an amount of Rs. 90/- given to him by Sri Har Prasad, Collection Amin, though he made entires as the same amount had been deposited.
(iv) that there was shortage of various articles detailed in the charge in the Malkhana.
(v) That he did not give complete documents of Pratikar Yojna.
(vi) That he removed the original papers from the Pass Books of fourteen Amins detailed in the charge and replaced them by other papers taking a plea that his children had torn the original papers.
(vii) That he mutilated the dates of deposit of certain amounts in account No. 124; and 342 and chased some original papers of Pass Book No. 1061057 which showed his collusion with the postal staff about which report had been sent to the Superintendent Post Offices.
(viii) That he had been utilising the money collected as security from Amins for his own purposes and used to deposit the amount from belately which showed that he was a careless in his duties and further showed the dereliction of his duties.
(ix) That he had committed a breach of trust amounting to Rs. 8,392/- which he admitted in his statement dated 13.4.72.
(x) That he committed a temporary embezzlement and used to meddle with the Pass Books by changing dates and removing the original papers from that; and
(xi) That he committed an embezzlement of Rs. 1100/- deposited by Sri Abdul Aziz Khan.
7. The Enquiry Officer i.e. Sub Divisional Officer, Atrauli had asked to petitioner to specify the documents which he wanted to inspect. The petitioner had given a list of such documents on 22nd May, 1973 but he inspected some of the documents and wanted inspection of the rest, which was done on 28th May, 1973. He was allowed further inspection on 2nd June, 1973 on which date he did not turn up. However, he was further allowed the inspection on 8th June, 1973 when after making inspection of the documents he gave in his own hand writing that he has inspected all the documents except the paper Nos. 7, 12, and 15. Paper Nos. 7 and 15 were original receipts and paper No. 12 was the Audit Report which were not available with the Enquiry Officer as they were with the police in connection with the criminal cases and it was reported that the petitioner had not given all the papers when he handed over the charge at Tahsil Khair. The petitioner thereafter moved another application on 6th July, 1973 confirming that he has inspected the relevant documents, though he wanted inspection of more papers and he also prayed that the departmental proceedings be stayed till the conclusion of the criminal cases which prayer was rejected and he was asked to submit his reply within five days. He did not do so and again applied for copies of the documents on 24th July, 1973. The paper Nos. 7 and 15 referred to above were the original receipts and as such the Enquiry Officer directed the police to show them to the petitioner. The petitioner had been making application after application for staying the departmental proceedings on the ground of the pendency of the criminal cases which application was rejected time and again and the petitioner for reasons best known to him neither appeared before the Enquiry Officer nor filed any reply. The Enquiry Officer had considered the documents, which were available on record and found the charges to have been proved. The Collector, who was the appointing authority after considering the enquiry report directed issuance of show cause notice to the petitioner to show cause as to why he be not dismissed from service. We further find that the petitioner has made an endorsement on 23rd October, 1973 that he has received the copy of the Enquiry Report and copy of the show cause notice. Time and again opportunity was given to the petitioner to submit his reply to the show cause notice but the petitioner did not avail of the opportunity and instead kept on harping that the disciplinary proceedings be stayed till the disposal of the criminal case. As the petitioner had not filed any reply, the Collector, Aligarh, after considering the report had passed the order of punishment of dismissal from service. The Tribunal has dealt with the matter in great detail and has come to the conclusion that the petitioner was given full opportunity to defend and the entire proceeding conforms to the principles of natural justice. We do not find any good reason to take a contrary view to set aside the aforesaid findings of the Tribunal. We are of the further opinion that the petitioner has not suffered any prejudice for non-supply of the documents, if any, as the petitioner had not submitted any reply to the charge sheet before the Enquiry Officer or to the show cause notice before the disciplinary authority and did not plead or establish any prejudice and, therefore, the decisions relied upon by the learned Counsel for the petitioner regarding non-supply of the documents would not be applicable in the present case.
8. Coming to the plea advanced by the learned Counsel for the petitioner that the departmental proceedings ought to have been stayed by the authorities till the disposal of the criminal cases, we find that the petitioner was prosecuted for charges No. 2, 3 and 11 pursuant to the first information report lodged against him and the criminal Court has acquitted the petitioner in all these charges. However, the remaining eight charges do not relate to the criminal prosecution and in this view of the matter the authorities had rightly not stayed the departmental proceedings. Reliance placed by the learned Counsel for the petitioner upon the decision of the Apex Court in the case of Capt. M. Paul Anthony(supra) is wholly misplaced. In the aforesaid case the Apex Court in paragraph 22 of the Report has enunciated the following principles:
22. The conclusions which are dccluciblc from various decisions of this Court referred to above are:
(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 department 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 involves 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 i 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 charge sheet.
(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, administration may get rid of him at the earliest.
9. Applying the principles laid down in the aforesaid case to the facts of the present case, we are of the considered opinion that the criminal case did not involve any complicated question of law and facts which required staying of the departmental proceedings till conclusion of the criminal cases.
10. So far as the plea that on the basis of acquittal of the petitioner in criminal cases, authorities ought to have reviewed the order of punishment is concerned, we find that the Apex Court in the case of Nelson Motis v. Union of India has held as follows:
5. So far the first point is concerned, namely, whether the disciplinary proceedings could have been continued in the face of the acquittal of the appellant in the criminal case, the plea has no substance whatsoever and does not merit a detailed consideration. The nature and scope of a criminal case are very different from those of a departmental disciplinary proceeding and an order of acquittal, therefore, cannot conclude the departmental proceeding. Besides, the Tribunal has pointed out that the acts which led to the initiation of the departmental disciplinary proceedings were not exactly the same which were the subject-matter of the criminal case.
11. In the case of Senior Superintendent of Post Offices v. A. Gopalan , the view expressed by the Apex Court in the case of Nelson Motis (supra) was fully endorsed by the Apex Court.
12. The aforesaid decisions have been followed by the Apex Court in the case of South Bengal State Transport Corporation v. Sapan Kumar Mitra and Ors. , wherein the Apex Court has held as follows:
that the nature and scope of proof in a criminal case is very different from that of a departmental disciplinary proceeding and the order of acquittal in the former cannot conclude the departmental proceedings. This Court has further held that in a criminal case charge has to be proved by proof beyond reasonable doubt while in departmental proceedings the standard of proof for proving the charge is mere preponderance of probabilities. Such being the position of law now settled by various decisions of this Court, two of which have already been referred to earlier, we need not deal in detail with the question whether acquittal in a criminal case will lead to holding that the departmental proceedings should also be discontinued. That being the position, an order of removal from service emanating from a departmental proceeding can very well be passed even after acquittal of the delinquent employee in a criminal case.
13. Thus, the authorities have rightly rejected the applications seeking review of the order of punishment on the ground of having been acquitted in the criminal case in respect of the charge Nos. 2, 3 and 11 only and not in respect of the remaining other charges.
14. So far as the question of quantum of punishment is concerned, we find that the punishment awarded to the petitioner is not disproportionate to the charges levelled against him.
15. In view of the aforesaid discussion, we do not find any merit in this writ petition. It is hereby dismissed. However, the parties shall bear their own costs.