Bombay High Court
Union Of India Through Chief Post Master ... vs A. S. Utekar on 26 April, 2018
Bench: V. K. Tahilramani, M. S. Sonak
JUD-2757-04
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO. 2757 OF 2004
Union of India & Anr. ...Petitioners
Versus
Anant Shivram Utekar ...Respondent
Mr. G. Hariharan with Mr. D. A. Dube for Petitioners.
Mr. K. Babu Rajan for Respondent.
CORAM : SMT. V. K. TAHILRAMANI, Acting C.J. &
M. S. SONAK, J.
Date of Reserving the Judgment : 19 April 2018
Date of Pronouncing the Judgment : 26 April 2018
JUDGMENT :
1] Heard the learned counsel for the parties. 2] The challenge in this petition is to the judgment and order dated 7th June 2004 made by the Central Administrative Tribunal (CAT) allowing Original Application No. 471 of 2000 instituted by the respondent questioning inter alia his dismissal from service on 10th January 1995 on the ground of his subsequent acquittal on 31st March 1999 by the Metropolitan Magistrate, Mulund in criminal prosecution under section 381 r.w. 114 of the Indian Penal Code.
page 1 of 23 ::: Uploaded on - 26/04/2018 ::: Downloaded on - 27/04/2018 01:52:54 ::: JUD-2757-04 3] The respondent, was working as a night watchman at the Bhandup post office in the year 1985, when it was discovered that the respondent along with another employee i.e. postman Pandurang M. Nadekar, secretly opened the insured packet lying in the safe, removed the amounts therefrom and re-sealed the insured packets. The respondent was placed under suspension and a charge memo dated 19th September 1986 was served upon him. The respondent in fact admitted Article 1 of the charge sheet and the enquiry officer submitted his report to the disciplinary authority. Based upon the same, the disciplinary authority on 10th January 1995 dismissed the respondent from service. The respondent neither preferred any appeal to question such dismissal nor did he institute any proceedings before the CAT to question dismissal order dated 10th January 1995.
4] However, once the respondent was acquitted by the Metropolitan Magistrate, Mulund, in the criminal prosecution launched against him alleging commission of offence under section 381 r.w. 114 of the IPC on 31 st March 1999, the respondent, made a representation dated 12th April 1999 page 2 of 23 ::: Uploaded on - 26/04/2018 ::: Downloaded on - 27/04/2018 01:52:54 ::: JUD-2757-04 seeking reinstatement. By order dated 8th October 1999 the disciplinary authority rejected this representation. The respondent instituted OA No. 471 of 2000 questioning not only the rejection order dated 8th October 1999 but also his dismissal order dated 10th January 1995. By the impugned judgment and order dated 7th June 2004, the CAT, has allowed OA No. 471 of 2000 instituted by the respondent and directed the reinstatement of the respondent with all consequential benefits relying mainly upon the judgment and order dated 31st March 1999 by which the Metropolitan Magistrate, Mulund, acquitted the respondent in criminal prosecution.
5] By order dated 13th December 2004, this Court, issued Rule in the present petition and granted interim relief in terms of prayer clause (b), thereby staying the operation of the impugned judgment and order dated 7th June 2004 in OA No. 471 of 2000.
6] Mr. Hariharan, the learned counsel for the petitioners submits that the scope and import of departmental proceedings and criminal proceedings is entirely different.
page 3 of 23 ::: Uploaded on - 26/04/2018 ::: Downloaded on - 27/04/2018 01:52:54 ::: JUD-2757-04 Therefore, on the ground that an employee may have been subsequently acquitted in the criminal prosecution, there is no question of upsetting the findings recorded in disciplinary proceedings more so where such findings were based upon an admission of the guilt by the employee concerned. He relies on Jung Bahadur Singh vs. Baij Nath Tiwari AIR 1969 SC 30, Nelson Motis vs. Union of India & Anr. AIR 1992 SC 1981 and Corporation of City of Nagpur, Civil Lines, Nagpur & Anr. vs. Ramchandra & Ors. (1981) 2 SCC 714.
7] Mr. Hariharan further points out that the dismissal order dated 10th January 1995 had in fact attained finality for want of appeal or even challenge before the CAT. On the basis of subsequent acquittal in the year 1999, there was no question of reopening the issue of validity of dismissal order. Mr. Hariharan points out that there is no legal provision which obliged the disciplinary authority to review the order of dismissal validly made on the basis of departmental proceedings, on the ground that subsequently, the employee concerned, has been acquitted in criminal prosecution. On this ground also, Mr. Hariharan page 4 of 23 ::: Uploaded on - 26/04/2018 ::: Downloaded on - 27/04/2018 01:52:54 ::: JUD-2757-04 submits that the impugned judgment and order made by the CAT warrants interference.
8] Finally, Mr. Hariharan points out that the CAT relying upon the judgment and order dated 31st March 1999, by which the Metropolitan Magistrate, Mulund, acquitted the respondent has attempted to revisit and re-evaluate the material before the enquiry officer and to interfere with the findings recorded in the enquiry report. Mr. Hariharan submits that there was ample evidence on record including but not restricted to the admission of the respondent with regard to Article 1 of the charge memorandum. He submits that taking into consideration the limited scope of judicial review in matters of interference with findings recorded by the disciplinary authorities, the CAT, was not at all justified in re-assessing or re-evaluating the material before the enquiry officer and interfering with the order made by the disciplinary authority, which, in any case, had already attained finality. Mr. Hariharan submits that for all the aforesaid reasons, impugned judgment and order made by the CAT may be set aside.
page 5 of 23 ::: Uploaded on - 26/04/2018 ::: Downloaded on - 27/04/2018 01:52:54 ::: JUD-2757-04 9] Mr. K. Babu Rajan, the learned counsel for the respondent submits that in the present case, the enquiry which was held against the respondent was in breach of Rule 15(2) of the CCS (CCA) Rules. He submits that there was no legal evidence before the enquiry officer to return the finding that the charges leveled against the respondent were proved. He submits that the findings recorded by the enquiry officer are vitiated by perversity and non application of mind. He submits that the Metropolitan Magistrate has accepted the case of the respondent that there were mala fides involved in launching the prosecution against the respondent. He submits that if on the same facts disciplinary proceedings and criminal prosecution is launched, then, acquittal in the criminal prosecution by the courts of law must supercede the finding of guilt by an enquiry officer in disciplinary proceedings. He submits that this is precisely the import of the law laid down by the Hon'ble Supreme Court in the case of Capt. M. Paul Anthony vs. Bharat Gold Mines Ltd. & Anr. (1999) 3 SCC 679, which has been relied upon by the CAT. 10] Mr. Rajan submits that the findings recorded in the page 6 of 23 ::: Uploaded on - 26/04/2018 ::: Downloaded on - 27/04/2018 01:52:54 ::: JUD-2757-04 disciplinary proceedings were vitiated by perversity. He submits that even though the standard of proof required in disciplinary proceedings may be that of preponderance of probabilities, even such standard requires that there is some material on record to arrive at a conclusion about guilt of the delinquent officer. He submits that this is a case of no evidence and therefore, the findings recorded by the enquiry officer are vitiated by perversity. In such circumstances, the CAT, was very much justified in interfering with the dismissal order.
11] Finally, Mr. Rajan submits that there is contradiction in the charges leveled against the respondent in the charge sheet in the disciplinary proceedings and in the criminal prosecution. He submits that such contradiction is itself sufficient to demonstrate the falsity of the charges leveled against the respondent. Based upon such contradictory charges, the respondent, could not have been dismissed from service. In any case, now that the Metropolitan Magistrate has acquitted the respondent, the petitioners were duty bound to reinstate the respondent with all consequential benefits. He submits that there is absolutely page 7 of 23 ::: Uploaded on - 26/04/2018 ::: Downloaded on - 27/04/2018 01:52:54 ::: JUD-2757-04 no error in the impugned judgment and order made by the CAT. He submits that now that so much time has elapsed, not only should the impugned judgment and order made by the CAT be upheld but further, directions must be issued to the petitioners to pay the respondent interest on arrears. For all these reasons, Mr. Rajan urges that this petition be dismissed with costs.
12] The rival contentions now arise for our determination. 13] The respondent was working as a night watchman at Bhandup post office between the period 1st February 1977 and 29th April 1985. On 29th April 1985 it was alleged that the respondent allowed Shri P. M. Nadekar postman at Vikhroli Post Office to enter into Bhandup post office premises unauthorizedly and further, helped Shri P. M. Nadekar, to enter into treasury cage, extract money from the insured articles, and thereafter, lend the amount of Rs.26,700/- to some persons on an interest of five percent per month.
14] In the enquiry proceedings which followed, the page 8 of 23 ::: Uploaded on - 26/04/2018 ::: Downloaded on - 27/04/2018 01:52:54 ::: JUD-2757-04 respondent, admitted charge no. - 1 but denied charge nos. 2 and 3. Charge No. 1, was that the respondent allowed Shri P. M. Nadekar, postman to enter into Bhandup post office premises unauthorizedly and thereby failed to maintain devotion to duty and contravened Rule 3(1)(iii) of CCS (Conduct) Rules, 1964.
15] The enquiry officer submitted enquiry report in which, he held charge no. 1 as proved against the respondent but held charge nos. 2 and 3 as not proved. After the enquiry report was submitted to the disciplinary authority, a disciplinary authority, after due compliance with the procedures prescribed, disagreed with the findings of the enquiry officer in so far as charge nos. 2 and 3 are concerned. The disciplinary authority relied upon the documentary evidence submitted during the enquiry proceedings and by detailed order dated 10th January 1995 imposed the penalty of dismissal upon the respondent. 16] The service rules provide remedy of appeal and revision as against the order made by the disciplinary authority. However, the respondent, chose to institute page 9 of 23 ::: Uploaded on - 26/04/2018 ::: Downloaded on - 27/04/2018 01:52:54 ::: JUD-2757-04 neither any appeal nor any revision to question the dismissal order dated 10th January 1995. The respondent also did not institute any proceedings before the CAT to question the order dated 10th January 1995 within the period of limitation prescribed under the Administrative Tribunals Act, 1985. As a result, the dismissal order dated 10th January 1995 attained finality.
17] On the basis of acquittal in the criminal prosecution by judgment and order dated 31st March 1999, the respondent made a representation on 12th April 1999 seeking for reinstatement with all consequential benefits. Since, this representation was rejected by the petitioners, by letter dated 8th October 1999, the respondent instituted OA No. 471 of 2000 before the CAT and the CAT by the impugned judgment and order dated 7th June 2004, has set aside not only the letter dated 8th October 1999 but also the dismissal order dated 10th January 1995 and ordered reinstatement of the respondent with all consequential benefits. 18] From the perusal of the impugned judgment and order, we find that the CAT has virtually proceeded on the page 10 of 23 ::: Uploaded on - 26/04/2018 ::: Downloaded on - 27/04/2018 01:52:54 ::: JUD-2757-04 basis that the acquittal in the criminal prosecution wipes out the findings recorded by the disciplinary authority in the disciplinary proceedings. According to us, this approach is quite unsustainable and amounts to an error of jurisdiction. 19] It is settled position in law that the scope and import of criminal proceedings and departmental proceedings is quite different. In the criminal proceedings, the court is concerned with the guilt of the accused and the standard of proof to be employed, is therefore proved beyond reasonable doubt. In contrast, the standard of proof applicable in departmental proceedings is that of preponderance of probabilities. From the perusal of the impugned judgment and order, it appears to us that this distinction has not been apparent and therefore, the impugned judgment and order, warrants interference. 20] In Nelson Motis (supra) disciplinary proceedings were initiated against the appellant on the basis of several charges and an enquiry was conducted. The enquiry officer submitted a report holding the charges as proved. The report was accepted by the disciplinary authority and page 11 of 23 ::: Uploaded on - 26/04/2018 ::: Downloaded on - 27/04/2018 01:52:54 ::: JUD-2757-04 penalty of removal was imposed upon the appellant. This order was confirmed in departmental appeal. The appellant instituted OA No. 401 of 1987 before the CAT and contended that since copy of the enquiry report was not furnished so made, the penalty imposed was vitiated. This plea was accepted by the CAT, but penalty was set aside, the appellant was directed to be reinstated but liberty was granted to the parties to take up the proceedings afresh unless they choose to drop the same. The CAT also observed that criminal case has been started against the appellant on the basis of the same charge and had concluded in his acquittal and therefore, this fact shall also be kept in view while deciding whether the proceedings against the appellant should be dropped or not. The matter was reconsidered by the disciplinary authority and a decision was taken to continue with the disciplinary proceedings by placing appellant under suspension from the date of his removal from service. This order was challenged by the appellant before the CAT by instituting OA No. 631 of 1989. The main ground was that the departmental proceedings could not have been continued once the appellant stood acquitted in the criminal case. The page 12 of 23 ::: Uploaded on - 26/04/2018 ::: Downloaded on - 27/04/2018 01:52:54 ::: JUD-2757-04 suspension order was also challenged by urging that the rule under which suspension was ordered was ultra vires Articles 14 and 16 of the Constitution. The CAT, rejected both the grounds and even dismissed the review petition instituted by the appellant. The appellant, therefore challenged the judgment and order made by the CAT before the Hon'ble Apex Court.
21] The Hon'ble Apex Court, at paragraph 5 has held that so far as the first point is concerned, namely, whether disciplinary proceedings could have been continued in face of the acquittal of the appellant in the criminal case, the plea is of 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 proceedings and an order of acquittal, therefore cannot conclude departmental proceedings. 22] In Corporation of City of Nagpur (supra), the Hon'ble Supreme Court has held that merely because the accused is acquitted, the power of the authority concerned to continue the departmental enquiry is not taken away nor is its page 13 of 23 ::: Uploaded on - 26/04/2018 ::: Downloaded on - 27/04/2018 01:52:54 ::: JUD-2757-04 discretion in any way fettered.
23] There is no legal provision pointed out by Mr. Rajan which obliges the disciplinary authority to reconsider or revisit the order of dismissal imposed upon an employee, which order, has already attained finality, on the ground of subsequent acquittal in the criminal prosecution. The CAT has also not adverted to any legal provision under which the disciplinary authority was obliged to undertake any such exercise. In any case, even if we are to assume that the CAT could have entertained any challenge to the dismissal order, which had already attained finality, from the perusal of the impugned judgment and order it is quite clear that the CAT, has not acted within the bounds of judicial review applicable in such matters.
24] In Deputy Inspector General of Police & Anr. vs. S. Samuthiram AIR 2013 SC 14, the Hon'ble Supreme Court has held that mere acquittal of an employee by a criminal Court has no impact on the disciplinary proceedings initiated by the Department. There may be cases where the service rule provide in spite of domestic page 14 of 23 ::: Uploaded on - 26/04/2018 ::: Downloaded on - 27/04/2018 01:52:54 ::: JUD-2757-04 enquiry, if the criminal Court acquits an employee honourably, he could be reinstated. The issue of whether an employee has to be reinstated in service or not depends upon the question whether the service rules contain any such provision for reinstatement and not as a matter of right. Acquittal of delinquent even if honourable as such does not in absence of any provision in service rules for reinstatement, confer right on delinquent 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 proceedings is entirely different. In a criminal case, the onus of establishing the guilt of the accused is on the prosecution and it fails to establish the guilt beyond reasonable doubt, the accused is presumed 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. Moreover, there was no provision in the T. N. Service Rules providing for reinstatement for honourable acquittal and therefore, interference with the order of dismissal was uncalled for.
page 15 of 23 ::: Uploaded on - 26/04/2018 ::: Downloaded on - 27/04/2018 01:52:54 ::: JUD-2757-04 25] From perusal of the Magistrate's order, it is seen that the Magistrate has held that it is not 'clearly' proved that the keys of the strong room were in exclusive possession of the respondent. The Magistrate has again observed that it is not proved 'clearly' in the evidence that the respondent with the help of Nadekar tampered the insured letters kept at Bhandup post office on the alleged three dates 'clearly'. The Magistrate has again held that the evidence against the respondent for holding him guilty was not sufficient. From all this, it is clear that this is not a case of some 'honourable acquittal' as claimed by the respondent but rather, this is a case where the respondent came to be acquitted of the criminal charges because the evidence was not sufficient to clearly establish the guilt beyond reasonable doubt. As noted earlier, in a criminal trial, the standard of proof expected to be proved is beyond reasonable doubt and not mere preponderance of probabilities as in civil or disciplinary proceedings. Even this aspect, has not at all been considered by the CAT. 26] The fact situation, in Capt. M. Paul Anthony (supra) offers no parallel to the fact situation in the present case. In page 16 of 23 ::: Uploaded on - 26/04/2018 ::: Downloaded on - 27/04/2018 01:52:54 ::: JUD-2757-04 the said case, the findings recorded by the enquiry officer in the disciplinary proceedings were sought to be proved by police officers and panch witnesses who have raided the house of the appellant and had effected recovery. They were the only witnesses examined by the enquiry officer and the enquiry officer relying upon their statements came to the conclusion that the charges were established against the appellant. Some witnesses were examined in criminal case but the court, on consideration of the entire evidence came to the conclusion that no search was conducted nor was any recovery made from the residence of the appellant. It is in the light of these startling facts that the Hon'ble Supreme Court held that it would be unjust and oppressive to allow the findings recorded at the exparte departmental proceedings to stand. None of such startling instances obtained in the present case. In fact, in the present case, the respondent, admitted the first charge that he allowed unauthorized entry of Nadekar in the treasury cage or the strong room of the post office at night time, when the respondent, as a night watchman was duty bound to prevent such unauthorised entry. The CAT, without taking notice of such distinguishing views erred in applying the page 17 of 23 ::: Uploaded on - 26/04/2018 ::: Downloaded on - 27/04/2018 01:52:54 ::: JUD-2757-04 principles in the case of Capt. M. Paul Anthony (supra) to the facts and circumstances of the present case. 27] In Lalit Popli vs. Canara Bank & Ors. 2003 SCC (L&S) 353, the Hon'ble Supreme Court has reiterated that the High Court does not act as an appellate authority over the findings recorded in a departmental enquiry. However, it is also held that preponderance of probabilities and some material on record are necessary to arrive at the conclusion of the guilt of the delinquent. In the present case, there is ample material available on record including the very admission of the respondent in support of the findings recorded by the disciplinary authori8ty. Accordingly, the decision in Lalit Popli (supra) can be of no assistance to the respondent.
28] In Senior Superintendent of Post Offices, Pathanamthitta & Ors. vs. A. Gopalan 1998 (1) S. C. Services Law Judgments 195 and Govind Das vs. State of Bihar & Ors. (1997) 11 SCC 361, upon which reliance was placed by Mr. Rajan, the Hon'ble Supreme Court has held that the acquittal in criminal proceedings on page 18 of 23 ::: Uploaded on - 26/04/2018 ::: Downloaded on - 27/04/2018 01:52:54 ::: JUD-2757-04 the basis of benefit of doubt or on the basis that the charges were not proved beyond reasonable doubt has no effect on the punishment awarded in departmental enquiry. These decisions, rather assist the case of the respondent, than assisting the case of the petitioners. If the Magistrate's acquittal order is perused, it is apparent that the acquittal of the respondent in the criminal proceedings was based on the view that the charges were not clearly proved beyond reasonable doubt.
29] In the present case, the CAT, has virtually attempted to re-appreciate the material before the disciplinary authority and gone into the issue of both adequacy as well as reliability of the evidence before the enquiry officer and the disciplinary authority. The CAT has not specifically held that this is a case of no evidence or perversity, but rather, the CAT, on the basis of reassessment of the material before the enquiry officer and the disciplinary authority, held that the charges against the respondent could not be held as proved. This is notwithstanding the fact that the respondent had himself in clear and categoric terms admitted charge no. 1 which relates to permitting Nadekar page 19 of 23 ::: Uploaded on - 26/04/2018 ::: Downloaded on - 27/04/2018 01:52:54 ::: JUD-2757-04 to enter into the post office and to tamper with the contents in the strong room. In fact, even this charge was serious enough to warrant penalty of dismissal taking into consideration the circumstance that the respondent was a night watchman and it was his responsibility to ensure that no unauthorised person enters into the post office premises at odd hours.
30] In Union of India & Ors. vs. P. Gunasekaran AIR 2015 SC 545, the Hon'ble Supreme Court, in the context of exercise of powers under Articles 226 and 227 by the High Court in relation to disciplinary proceedings has held that the High Court is not and cannot act as a second court of first appeal. The Hon'ble Court has spelt out the restrictive parameters of jurisdiction to be exercised by a High Court in relation to disciplinary proceedings. It is held that the High Court cannot go into reliability and adequacy of evidence. Similarly, the High Court cannot re-appreciate the evidence before the enquiry officer in order to reach to a different finding. Interference is permitted only where the findings of fact is perverse. The test laid down by the Hon'ble Supreme Court, which will apply also to Central page 20 of 23 ::: Uploaded on - 26/04/2018 ::: Downloaded on - 27/04/2018 01:52:54 ::: JUD-2757-04 Administrative Tribunal exercising the powers of judicial review are as follows :
"(I) The High Court can only see whether:
a). the enquiry is held by a competent authority;
b). the enquiry is held according to the procedure prescribed in that behalf;
c). there is violation of the principles of natural justice in conducting the proceedings;
d). the authorities have disabled themselves from reaching a fair conclusion by some considerations extraneous to the evidence and merits of the case;
e). the authorities have allowed themselves to be influenced by irrelevant or extraneous considerations;
f). the conclusion, on the very face of it, is so wholly arbitrary and capricious that no reasonable person could ever have arrived at such conclusion;
g). the disciplinary authority had erroneously failed to admit the admissible and material evidence;
h). the disciplinary authority had erroneously admitted inadmissible evidence which influenced the finding;
i). the finding of fact is based on no evidence.
II) Under Article 226/227 of the Constitution of India, the High Court shall not:
(i). re-appreciate the evidence;
(ii). interfere with the conclusions in the enquiry, in case the same has been conducted in accordance with law;
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(iii). go into the adequacy of the evidence;
(iv). go into the reliability of the evidence;
(v). interfere, if there be some legal evidence on which findings can be based.
(vi). correct the error of fact however grave it may appear to be;
(vii). go into the proportionality of punishment unless it shocks its conscience."
31] Applying the restrictive parameters, there is no reason to hold that the disciplinary authority erred in holding all the articles of charge as proved against the respondent. This is because the disciplinary authority, has relied upon documentary evidence. In any case, since the respondent had himself admitted guilt in so far as charge - 1 is concerned, the CAT, was not at all justified in setting aside the finding of guilt qua the said charge as well. As noted earlier, even if this single charge were to be held as proved against the respondent, that was sufficient for imposition of the penalty of dismissal upon the respondent. 32] Since in the present case, we are satisfied that the CAT has exceeded its jurisdiction in re-appreciating the material before the enquiry officer and further, in interfering page 22 of 23 ::: Uploaded on - 26/04/2018 ::: Downloaded on - 27/04/2018 01:52:54 ::: JUD-2757-04 with the findings recorded by the enquiry officer, even though, there was sufficient legal evidence on record to sustain such findings, the impugned order made by the CAT will have to be set aside.
33] Upon cumulative consideration of the above factors, we set aside the impugned judgment and order dated 7th June 2004 made by the CAT. Rule is accordingly made absolute in terms of prayer clause (a). There shall however be no order as to costs.
(M.S. SONAK, J.) (ACTING CHIEF JUSTICE) CHANDKA page 23 of 23 ::: Uploaded on - 26/04/2018 ::: Downloaded on - 27/04/2018 01:52:54 :::