Central Administrative Tribunal - Allahabad
Rajendra Kumar vs General Manager, N E Rly on 31 August, 2023
Reserved)
Central Administrative Tribunal, Allahabad
Bench Allahabad
****
Original Application No. 976 of 2012
This the 31st Day of August, 2023.
Hon'ble Mr. Justice B.K. Shrivastava, Member (J)
Hon'ble Mr. Mohan Pyare, Member (A)
Rajendra Kumar S/o Subedar, R/o Sohanpur, Post - Billhour, District -
Kanpur Nagar.
...........Applicant
By Advocate: Shri D.C. Mishra
Versus
1. Union of India through the G.M. RAilway, Gorakhpur, U.P.
2. Additional Divisional Railway Manager, N.E.R. Izatnagar, U.P.
3. Senior Divisional Engineer (First) N.E.R., Izatnagar, U.P.
4. Assistant Divisional Engineer, N.E. Railway, Kashipur.
........Respondents
By Advocate: Shri R.C. Sahu
ORDER
Order delivered by Hon'ble Mr. Justice B.K. Shrivastava, Member (J) This OA has been filed under Section 19 of the Administrative Tribunals Act, 1985 on 17.07.2012 for modifying the impugned order dated 20.09.2011 (Annexure A-1) and for reinstatement of the application upon the post of Gateman from the date of his termination 1 | Page from service i.e. 09.03.2011 with full salary and other emoluments. The applicant also seeks quashment of the orders dated 05.07.2011 and 09.03.2011 passed by the Senior Divisional Engineer, (I) Izatnagar and Assistant Divisional Engineer, Izatnagar, Kashipur. The relief claimed in Para-8 of the OA is as under:-
"i. That this Hon'ble Tribunal may be pleased to modify the impugned order dated 20.09.2011, passed by the Appellate Authority, Additional Divisional Railway Manager, Izatnagar and to reinstate the applicant on his post of gateman from the date of his termination from service (i.e.) 09.03.2011 will full salary and other emoluments payable to him.
ii. To quash the orders dated 05.07.2011 and 09.03.2011 passed by Senior Divisional Engineer (First), Izatnagar and Assistant Divisional Engineer, N.e. Railway, Kashipur.
iii. This Hon'ble Tribunal may grant any other relief or reliefs to which he is entitled may also be awarded and/or this Hon'ble Tribunal may grant such other and proper relief which it deems to be fit and proper in the circumstances of the case.
iv. To award the cost of this claim to the applicant. "
2. As per the applicant's case, he joined the post of Gangman in furtherance to the appointment letter dated 08.05.1990. On 17.06.2010, between the 18.00 to 06.00 shift, he was posted at Gate No.32/C protected level crossing under Senior Section Engineer, Kashipur. It is alleged that the applicant was absent from his duty. He left the gate open without any protection and due to this negligent act, one accident occurred in which a Tractor along with Trolley met with an accident while crossing the gate with the passenger Train No.446 down, resulting death of the driver of the Tractor. The applicant was held 2 | Page liable for violating the Rules of Railway Service Manual 1966, Para-3(i) Sub- clause II and III.
3. It is again submitted that after the accident on 17.06.2010, one joint note was prepared. Upon the basis of joint note, the charge sheet Annexure A-3 dated 19.06.2010 was issued to the applicant. The Inquiry Officer and the Presenting Officer were appointed in the aforesaid Inquiry and the applicant also appointed his defence consultant on 18.11.2010. The applicant appeared before the Inquiry Officer on 23.11.2010 and thereafter Inquiry was conducted. On 19.06.2010, the Inquiry Officer Shri M.C. Pandey prepared the detailed report and conclusion in which he held the applicant to be solely responsible for the accident. Upon the basis of the aforesaid inquiry report Annexure A-9, a letter was issued to the applicant on 19.1.2011 for seeking his explanation/representation which was submitted by the applicant. Thereafter, the Disciplinary Authority terminated the services of the applicant by order dated 09.09.2011 Annexure A-13.
4. It is again submitted by the applicant that he filed the Appeal before the Sr. Divisional Engineer (I), N.R. Railway, Izatnagar, who dismissed the Appeal on 05.07.2011 and confirmed the order passed by the Disciplinary Authority. The applicant again moved an application before the Additional Divisional Railway Manager, who decided the aforesaid application and passed the order impugned (Annexure A-1) on 3 | Page 20.09.2011 by which the concerned Authority converted the punishment of "termination" into "Compulsory Retirement".
5. It is submitted by the applicant that his termination was totally illegal and the punishment of compulsory retirement is also not proper because the joint memo was prepared in relation to three employees but only applicant has been held liable. Therefore, the applicant was entitled to the same treatment which was given to the other two culprits/employees. It is also submitted that his defence has not been considered by the Disciplinary Authority while sufficient reasons were available. The another point argued by the applicant's counsel that the applicant has been acquitted in the criminal case, therefore the impugned order should be set aside and the applicant is entitled to get the service again.
6. The respondents opposed the entire claim of the applicant. It is submitted that sufficient leniency has been shown. By the impugned order the termination of the applicant has been converted into punishment of compulsory retirement. The applicant was on the duty at the gate. Any sufficient evidence was not produced by the applicant for showing his innocence. It is also submitted that the applicant is not entitled to get the service only upon the basis of acquittal in the criminal case. In this regard, he placed the reliance upon Imitiaza Ahmad Malla vs. State of Jammu and Kashmir, SLP No.678/2021 decided by the Supreme Court on 28.02.2023.
4 | Page
7. It will be useful to refer the Joint Note dated 17.06.2010 which was prepared by three senior responsible officers after the accident:-
"संयक् ु त नोट दिनांक 17.06.2010 को रक्षित समपार संख्या 32-c किलोमीटर 45/6-7 ट्रे न नंबर 446 डाउन गाड़ी जो काशीपरु से 4.25 बजे चली थी। सस्टे मा का मीटर श्री सचिन अग्रवाल के अनस ु ार समपार का फाटक वाला गाड़ी के समय अटें ड नहीं हुआ जिस कारण सस्टे मा नें काशन दिया। समपार पर फाटक वाला श्री राजेंद्र कुमार (18-6) कार्य पर तैनात था। अचानक काशीपरु रोड़ की ओर से आती ट्रै क्टर ट्राली को जिसे श्री उपें द्र सिंह ग्राम उस्मानपरु थाना ढाकुरद्वारा जि0 मरु ादाबाद चला रहा था। समपार को पार करते समय 466 डा. गाड़ी से टकरा गया। जिससे ट्रै क्टर कई हिस्सों में टूट गया तथा ट्राली भी टूट गई, ट्रै क्टर का नम्बर अज्ञात पाया गया। टक्कर के पश्चात ट्रै क्टर चालक घायल हो गया तथा करीब 8:00 बजे उसकी मौत हो गई। चालक द्वारा सतर्क ता आदे श स्टे शन से प्राप्त किया गया था कि समपार सं 32-c का फाटक वाला अटें ड नहीं हो रहा है ।
साइट का संयक् ु त परीक्षण करने पर समपार के दोनों ओर सड़क चिन्ह उपलब्ध थे। सड़क पक्की थी दृष्टता दोनों के लिए साफ थी। गेट लैंप जल रहा था। टक्कर के पश्चात इंजन सं. 14004 फेल हो गया। गाड़ी का लोड 10= 10 था। 5.45 बजे दस ू रे इंजन की गाड़ी के रै क को घटना स्थल से मसील हे ड रवाना किया गया। दर्घ ु टना का समय 4.35 बजे अंकित किया गया।
उपरोक्त बयान, अभिलेखों के अवलोकन तथा साइट के संयक् ु त परीक्षण के गहन परीक्षण के पश्चात यह स्पष्ट हुआ कि गाड़ी संख्या 466 डा. का चालक श्री जी जी जोशी सहायक श्री ए के सक्सेना सा नियम संख्या 16.06 ना A हे तु उल्लंघन एंड दोषी पाए गए जबकि फाटक वाला लाइन के प्रोटे क्शन न करने हे तु दोषी पाया गया। इसके अतिरिक्त कार्य पर उपलब्ध ना रहने तथा अपनी ड्यट ू ी पर लापरवाही हे तु भी दोषी है । "
8. In Apparel Export Promotion Council vs. A.K. Chopra (Civil Appeal No. 226-227 of 1999 decided on 20.01.1999, the Supreme Court considered the scope of interference by court in the cases of 5 | Page departmental enquiry and said that High Court should not have substituted its own discretion for that of Disciplinary Authority in the matter of facts and quantum of punishment. The Court also said that in case of finding of facts in departmental enquiry, the Disciplinary Authority is the sole Judge of facts and Appellate Authority can upset the finding, but not the High Court unless the findings of Disciplinary Authority are perverse and against the Law. The High Court does not sit as Appellate Authority over the finding of Disciplinary Authority and impose some other punishment. The adequacy or in adequacy of evidence is not permitted to be canvassed before the High Court. In para-15 of the aforesaid case, the Supreme Court observed: -
"15. The high court appears to have over-looked the settled position that in departmental proceedings, the disciplinary authority is the sole judge of facts and in case an appeal is presented to the appellate authority, the appellate authority has also the power/and jurisdiction to re-appreciate the evidence and come to its own conclusion, on facts, being the sole fact finding authorities. Once findings of fact, based on appreciation of evidence are recorded, the high court in writ jurisdiction may not normally interfere with those factual findings unless it finds that the recorded findings were based either on no evidence or that the findings were wholly perverse and/or legally untenable. The adequacy or inadequacy of the evidence is not permitted to be canvassed before the high court. since, the high court does not sit as an appellate authority, over the factual findings recorded during departmental proceedings, while exercising the power of judicial review, the high court cannot normally speaking substitute its own conclusion, with regard to the guilt of the delinquent, for that of the departmental authorities. even insofar as imposition of penalty or punishment is concerned, unless the punishment or penalty imposed by the disciplinary or the departmental appellate authority, is either impermissible or such that it shocks the conscience of the high court, it should not normally substitute its own opinion and impose some other punishment or penalty. Both the learned single judge and the division bench of the high court, it appears, ignored the well settled principle that even though judicial review of administrative action must remain
6 | Page flexible and its dimension not closed, yet the court in exercise of the power of judicial review is not concerned with the correctness of the findings of fact on the basis of which the orders are made so long as those findings are reasonably supported by evidence and have been arrived at through proceedings which cannot be faulted with for procedural illegalities or irregularities which vitiate the process by which the decision was arrived at. Judicial Review, it must be remembered, is directed not against the decision, but is confined to the examination of the decision-making process."
9. In para-17 to 20 of the aforesaid Apparel Export case (supra), the Court also mentioned the other relevant cases: -
"17. It is useful to note the following observations of this Court in Union of India v. Sardar Bahadur, (1972) 4 SCC 618: "Where there are some relevant materials which the authority has accepted and which materials may reasonably support the conclusion that the officer is guilty, it is not the function of the high court exercising its jurisdiction under article 226 to review the materials and to arrive at an independent finding on the materials. If the enquiry has been properly held the question of adequacy or reliability of the evidence cannot be canvassed before the High Court.
18. After a detailed review of the law on the subject, this court while dealing with the jurisdiction of the high court or tribunal to interfere with the disciplinary matters and punishment in Union of India v. Parma Nanda, (1989) 2 SCC 177, opined:
"We must unequivocally state that the jurisdiction of the Tribunal to interfere with the disciplinary matters or punishment cannot be equated with an appellate jurisdiction. The Tribunal cannot interfere with the findings of the enquiry officer or competent authority where they are not arbitrary or utterly perverse. It is appropriate to remember that the power to impose penalty on a delinquent officer is conferred on the competent authority either by an Act of Legislature or Rules made under the proviso to Article 309 of the constitution. If there has been an enquiry consistent with the rules and in accordance with principles of natural justice what punishment would meet the ends of justice is a matter of exclusively within the jurisdiction of the competent authority. If the penalty can lawfully be imposed and is imposed on the proved misconduct, the Tribunal has no power to substitute its own discretion for that of the authority."
19. In B.C. Chaturvedi v. Union of India, (1995 ) 6 SCC 749, this court opined :
7 | Page "The disciplinary authority is the sole judge of facts. Where appeal is presented, the appellate authority has coextensive power to reappreciate the evidence or the nature of punishment.
In a Disciplinary Enquiry, the strict proof of legal evidence and findings on that evidence are not relevant. Adequacy of evidence or reliability of evidence cannot be permitted to be canvassed before the Court/Tribunal."
Further, it was held:
"A review of the above legal position would establish that the disciplinary authority, and on appeal the appellate authority, being fact-finding authorities have exclusive power to consider the evidence with a view to maintain discipline. They are invested with the discretion to impose appropriate punishment keeping in view the magnitude or gravity of the misconduct. The High Court/Tribunal, while exercising the power of judicial review, cannot normally substitute its own conclusion on penalty and impose some other penalty. If the punishment imposed by the disciplinary authority or the appellate authority shocks the conscience of the High Court/Tribunal, it would appropriately mould the relief, either directing the disciplinary/appellate authority to reconsider the penalty imposed, or to shorten the litigation, it may itself, in exceptional and rare cases, impose appropriate punishment with cogent reasons in support thereof."
20. Again in Government of Tamil Nadu and another v. A. Rajapandian, 1995(1) SCC 216, this court opined: "It has been authoritatively settled by string of authorities of this court that the Administrative Tribunal cannot sit as a court of appeal over a decision based on the findings of the inquiring authority in disciplinary proceedings. Where there is some relevant material which the disciplinary authority has accepted and which material reasonably supports the conclusion reached by the disciplinary authority, it is not the function of the Administrative Tribunal to review the same and reach different finding than that of the disciplinary authority. The Administrative Tribunal, in this case, has found no fault with the proceedings held by the inquiring authority. It has quashed the dismissal order by re-appreciating the evidence and reaching a finding different than that of the inquiring authority."
10. Thereafter, in para-21, the Court said: -
"21. In the established facts and circumstances of this case, we have no hesitation to hold, at the outset, that both the learned Single Judge and the Division Bench of the High Court fell into patent error in interfering with findings of fact recorded by the departmental 8 | Page authorities and interfering with the quantum of punishment, as if the High Court was sitting in appellate jurisdiction........."
Therefore, It appears that the court having limited jurisdiction in case of departmental inquiry. The result based upon the appreciation of the evidence cannot be disturbed by the Court.
11. It is submitted by the applicant that his defence has not been considered by the Inquiry Officer. It appears from the statement of the applicant recorded before the Inquiry Officer (at pages 65 to 69 of OA), the applicant took the following defence:-
"................ दिनांक 17.06.2010 को रात्रि लगभग 2.40 से 3.00 बजे के मध्य 04 अज्ञात व्यक्ति आये तथा प्रार्थी को गेट से उठा लिया तथा लगभग एक किलोमीटर की दरू ी पर प्रार्थी के मंह ु पर ऐसा कपड़ा डाल दिया जिससे प्रार्थी बेहोश हो गया। प्रार्थी को दिन के 12:00 बजे कुछ-कुछ होश आया तो प्रार्थी जब गेट की तरफ चला तो खेत में काम करने वाले किसान ने बताया कि तम् ु हारे गेट पर एक्सीडेंट हो गया है और बहुत भीड़ लगी हुई है , प्रार्थी जनता के डर के कारण वापस थोड़ी दरू जाकर एक गन्ने के खेत में छिपा रहा तथा दिनांक 18.06.2010 को रात्रि में प्रार्थी गन्ने के खेत से निकलकर अपने घर चला गया।...........
........... प्रार्थी हैंडपंप पर मह ु धो रहा था उसी समय 04 व्यक्ति आये तथा हाथ पैर पकड़कर पश्चिम दिशा में गेट से पार ले गए तथा वहीं पर मेरे मंह ु पर कपड़ा लगा दिया तत्पश्चात मैं बेहोश हो गया तथा वही पड़ा रहा।................
................ बदमाशों द्वारा धमकी दी गई की चिल्लाने की कोशिश मत करना वरना काट डालेंगे, तथा दो चार हाथ घस ु े बदमाशों द्वारा मार दिए गए, जिस कारण से प्रार्थी की और भी बोलने की हिम्मत नहीं पड़ी। ........................।
12. It is also appear that the applicant did not produce any evidence to establish his defence. The applicant did not lodge any first information report regarding the aforesaid accident. The applicant did 9 | Page not give the information to his any senior through the telephone. Therefore, it can be said that the defence taken by the applicant was totally baseless, he took the false defence. The defence taken by the applicant is also not probable. There was no any enmity with the applicant. There was some incident happened with another employee. Only by supporting the aforesaid employee, the applicant cannot be assaulted. Therefore, in view of this court the defence taken by the applicant has rightly been denied by the Competent Authority.
13. The second point raised by the applicant that because the joint memo was prepared, therefore all three employees were liable to be same treatment or punishment. But this argument cannot be accepted, because the applicant was the "Gateman" and was posted at the Railway Crossing Gate while, the other two person Shri G.G. Joshi was the Train Loco Pilot, and the A.K. Saxena was his Assistant. The duties of the applicant were totally different from the other two employees. Therefore, the applicant cannot claim the same treatment as Driver of the Train. The aforesaid argument also not accepted.
14. The another point raised by the applicant that he has been acquitted in the criminal case, but it appears from the record that any copy of the judgment of acquittal has not been filed by the applicant till today. Therefore, it cannot be said that the applicant has been acquitted. Even if the applicant is acquitted then it cannot ascertain that upon which ground he has been acquitted. The law upon 10 | Page this point is also well established. Only upon the basis of acquittal the result of departmental inquiry cannot be changed.
15. In the case of Union of India v. Sitaram Mishra [(2019)20 SCC 588], a constable in Central Reserve Police Force (CRPF) was charged for being negligent and careless and therefore, was removed from service. The facts of the case were that the constable while removing the magazine of his 9mm carbine gun, accidently fired eight rounds which resulted in the death of one constable who was at the relevant time in the same barrack. The constable was held guilty of misconduct in the disciplinary proceedings and was dismissed from service. Meanwhile, the constable was also tried for the offence under Section 304 of IPC in a criminal trial where he was acquitted. He thereafter filed a writ petition before the High Court challenging his dismissal from service. The writ petition was dismissed but later on an appeal before a Division Bench, the order of the learned Single Judge was set aside and it was ordered that since the constable by that time had been acquitted in the criminal court, he is liable to be reinstated in service and since by that time he had retired from service, he was to be treated in service with directions that he be given back wages and pension. Supreme Court while deciding the appeal filed by the Union of India came to the conclusion that the grounds which weighed with the High Court were specious, and merely because the employee was acquitted by the criminal court it does not mean, ipso-facto that he is entitled to be reinstated in service, since he was dismissed from service after facing a 11 | Page disciplinary proceeding. The reason being that the disciplinary proceedings are governed by a different standard of proof, which is different from what is applied in a criminal proceeding. Whereas, in a criminal trial the burden lies on the prosecution to establish the charge beyond reasonable doubt and in a departmental proceeding, the charges have to be proved on the basis of preponderance of probabilities. In the above case a distinction has also been drawn by the Supreme Court between a "criminal offence" and "misconduct". One has to be proved in a criminal court, the other in a departmental proceeding, and though both may arise from the same set of facts, yet there is a clear distinction between the two and merely because one has been acquitted in a criminal trial, it would not amount to a reversal of the findings of "misconduct", which were arrived in a departmental proceeding. Court also observed that the High Court fell into an error in doing exactly this, which was done by drawing an 'erroneous inference' from the decision of Supreme Court given in Capt. M. Paul Anthony. The Court said in Para 14 and 15 :-
"14. The fact that the first respondent was acquitted in the course of the criminal trial cannot operate ipso facto as a ground for vitiating the finding of misconduct which has been arrived at during the course of the disciplinary proceedings. The High Court, in our view, has drawn an erroneous inference from the decision of this Court in M. Paul Anthony v. Bharat Gold Mines Ltd. [M. Paul Anthony v. Bharat Gold Mines Ltd., (1999) 3 SCC 679 : 1999 SCC (L&S) 810]. The High Court adverted to the following principle of law laid down in the above judgment: (SCC p. 687, para 13) "13....While in the departmental proceedings the standard of proof is one of preponderance of the probabilities, in a criminal case, the charge has to be proved by the prosecution beyond reasonable doubt. The little exception may be where the departmental proceedings and the criminal case are based on
12 | Page the same set of facts and the evidence in both the proceedings is common without there being a variance."
15. It is undoubtedly correct that the charge in the criminal trial arose from the death of a co-employee in the course of the incident resulting from the firing of a bullet which took place from the weapon which was assigned to the first respondent as a member of the Force. But the charge of misconduct is on the ground of the negligence of the first respondent in handling his weapon and his failure to comply with the departmental instructions in regard to the manner in which the weapon should be handled. Consequently, the acquittal in the criminal case was not a ground for setting aside the penalty which was imposed in the course of the disciplinary enquiry. Hence, having regard to the parameters that govern the exercise of judicial review in disciplinary matters, we are of the view that the judgment [Sitaram Mishra v. Union of India, 2007 SCC On Line Cal 718 : (2008) 1 Cal LJ 863] of the Division Bench of the High Court is unsustainable." A three Judge Bench of this Court in Ajit Kumar Nag v. General Manager (PJ), Indian Oil Corpn. Ltd.[3] held the position of law, was explained as follows :-
"11..... In our judgment, the law is fairly well settled. Acquittal by a criminal court would not debar an employer from exercising power in accordance with Rules and Regulations in force. The two proceedings criminal and departmental - are entirely different. They operate in different fields and have different objectives. Whereas the object of criminal trial is to inflict appropriate punishment on offender, the purpose of enquiry proceedings is to deal with the delinquent departmentally and to impose penalty in accordance with service Rules. In a criminal trial, incriminating statement made by the 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 a conviction is different from the degree of proof necessary to record the commission of delinquency. The rule relating to appreciation of evidence in the two proceedings is also not similar. In criminal law, burden of proof is on the prosecution and unless the prosecution is able to prove the guilt of the accused 'beyond reasonable doubt', he cannot be convicted by a court of law. In departmental enquiry, on the other hand, penalty can be imposed on the delinquent officer on a finding recorded on the basis of 'preponderance of probability'....."
13 | Page
16. In State of Rajasthan vs. Heem Singh(AIR 2020 SC 5455= (2020) SCC online SC 886, the Supreme Court observed :-
"39. In exercising judicial review in disciplinary matters, there are two ends of the spectrum. The first embodies a rule of restraint. The second defines when interference is permissible. The rule of restraint constricts the ambit of judicial review. This is for a valid reason. The determination of whether a misconduct has been committed lies primarily within the domain of the disciplinary authority. The judge does not assume the mantle of the disciplinary authority. Nor does the judge wear the hat of an employer. Deference to a finding of fact by the disciplinary authority is a recognition of the idea that it is the employer who is responsible for the efficient conduct of their service. Disciplinary enquiries have to abide by the rules of natural justice. But they are not governed by strict rules of evidence which apply to judicial proceedings. The standard of proof is hence not the strict standard which governs a criminal trial, of proof beyond reasonable doubt, but a civil standard governed by a preponderance of probabilities. Within the rule of preponderance, there are varying approaches based on context and subject. The first end of the spectrum is founded on deference and autonomy - deference to the position of the disciplinary authority as a fact finding authority and autonomy of the employer in maintaining discipline and efficiency of the service. At the other end of the spectrum is the principle that the court has the jurisdiction to interfere when the findings in the enquiry are based on no evidence or when they suffer from perversity. A failure to consider vital evidence is an incident of what the law regards as a perverse determination of fact. Proportionality is an entrenched feature of our jurisprudence. Service jurisprudence has recognized it for long years in allowing for the authority of the court to interfere when the finding or the penalty are disproportionate to the weight of the evidence or misconduct. Judicial craft lies in maintaining a steady sail between the banks of these two shores which have been termed as the two ends of the spectrum. Judges do not rest with a mere recitation of the hands-off mantra when they exercise judicial review. To determine whether the finding in a disciplinary enquiry is based on some evidence an initial or threshold level of scrutiny is undertaken. That is to satisfy the conscience of the court that there is some evidence to support the charge of misconduct and to guard against perversity. But this does not allow the court to reappreciate evidentiary findings in a disciplinary enquiry or to substitute a view which appears to the judge to be more appropriate. To do so would offend the first principle which has been outlined above. The ultimate guide is the exercise of robust common sense without which the judges' craft is in vain."
14 | Page
17. In the case of "The State of Rajasthan & Ors. Vs. Phool Singh, AIR 2022 SC 4176 = AIR Online SC 1378 [2.9.2022]" the question considered by Supreme Court was :- whether the respondent can be reinstated in service for the reason that now on the same set of charges he has been acquitted by a criminal court? In para 8 the Court observed :-
"8. There should be no ambiguity in law on this subject. A departmental proceeding is different from a criminal proceeding. The fundamental difference between the two is that whereas in a departmental proceeding a delinquent employee can be held guilty on the basis of "preponderance of probabilities", in a criminal court the prosecution has to prove its case "beyond reasonable doubt". In short, the difference between the two proceedings would lie in the nature of evidence and the degree of its scrutiny. The two forums therefore run at different levels. For this reason, this Court has consistently held that merely because a person has been acquitted in a criminal trial, he cannot be ipsofacto reinstated in service."
In the aforesaid case, the Supreme Court differentiate the case of Capt. M. Paul Anthony v. Bharat Gold Mines Ltd. & Anr., 1999 (3) SCC 679 = AIR 1999 SC 1446 and said that the case of Capt. M. Paul must be appreciated for its unique facts and to our mind it does not lay down a law of universal application. In para 11 the court referred the case of Union of India v. Sitaram Mishra [(2019)20 SCC 588 and said :-
"11. We say this because as against Capt. M. Paul Anthony, we have a large number of cases where this Court has consistently held that the two proceedings, i.e., criminal and departmental, are entirely different and merely because one has been acquitted in a criminal trial that itself will not result in the reinstatement in service when one has been found guilty in a departmental proceeding.
12. Thus, in the present case, the learned Single Judge as well as the Division Bench of Rajasthan High Court were clearly wrong in 15 | Page interfering with the order of the Disciplinary Authority of the Rajasthan Police and placing their reliance on Capt. M. Paul Anthony. It is the Disciplinary Authority which is best equipped to reach a finding whether a "misconduct" has been committed. The prime concern of a Judge should be whether such a finding has been arrived after following a fair procedure, following the principles of natural justice and fairness."
18. In case of Commissioner of Police, New Delhi and Another Vs. Mehar Singh (2013) 7 SCC 685 observed as under:
"25. The expression "honourable acquittal" was considered by this Court in S. Samuthiram [Inspector General of Police v. S. Samuthiram, (2013) 1 SCC 598 : (2013) 1 SCC (Cri) 566 :
(2013) 1 SCC (L&S) 229] . In that case this Court was concerned with a situation where disciplinary proceedings were initiated against a police officer. Criminal case was pending against him under Section 509 IPC and under Section 4 of the Eve-Teasing Act. He was acquitted in that case because of the non-examination of key witnesses.
There was a serious flaw in the conduct of the criminal case. Two material witnesses turned hostile. Referring to the judgment of this Court in RBI v. Bhopal Singh Panchal [(1994) 1 SCC 541 :
1994 SCC (L&S) 594 : (1994) 26 ATC 619] , where in somewhat similar fact situation, this Court upheld a bank's action of refusing to reinstate an employee in service on the ground that in the criminal case he was acquitted by giving him benefit of doubt and, therefore, it was not an honourable acquittal, this Court held that the High Court was not justified in setting aside the punishment imposed in the departmental proceedings. This Court observed that the expressions "honourable acquittal", "acquitted of blame" and "fully exonerated" are unknown to the Criminal Procedure Code or the Penal Code. They are coined by judicial pronouncements. It is difficult to define what is meant by the expression "honourably acquitted". This Court expressed that when the accused is acquitted after full consideration of the prosecution case and the prosecution miserably fails to prove the charges levelled against the accused, it can possibly be said that the accused was honourably acquitted.
26. In light of the above, we are of the opinion that since the purpose of the departmental proceedings is to keep persons, who are guilty of serious misconduct or dereliction of duty or who are guilty of grave cases of moral turpitude, out of the department, if found necessary, because they pollute the department, surely the above principles will apply with more vigour at the point of entry of a person in the police department i.e. at the time of recruitment. If it is found by the Screening Committee that the person against whom a serious case 16 | Page involving moral turpitude is registered is discharged on technical grounds or is acquitted of the same charge, but the acquittal is not honourable, the Screening Committee would be entitled to cancel his candidature. Stricter norms need to be applied while appointing persons in a disciplinary force because public interest is involved in it."
19. In the case of Imtiyaz Ahmad Malla Vs. State of jammu and Kashmir, AIR 2023 SC 1308 = AIROnline 2023 SC 151 = 2023 LiveLaw [SC] 150 [28.02.2023] the Supreme court said in para 11 and 12 and 13:-
"11. The expression "honourable acquittal" had also come up for consideration in other cases namely, Management of Reserve Bank of India, New Delhi Vs. Bhopal Singh Panchal, (1994) 1 SCC 541 ; and in R.P. Kapur Vs. Union of India and Another, AIR 1964 SC 787 whereby it was held inter alia that the mere acquittal does not entitle an employee to the reinstatement in service. The acquittal, it was held, has to be honourable. As such, the expressions "honourable acquittal", "acquitted of blame", "fully exonerated" are unknown to the Code of Criminal Procedure or the Penal Code, and it is difficult to define precisely what is meant by expressions "honourable acquittal".
12. In Pradeep Kumar's case (supra) also it was reiterated that if a person is acquitted or discharged, it cannot obviously be inferred that he was falsely involved, or he had no criminal antecedents. The precise observations made therein are re-produced hereunder:
"10. The acquittal in a criminal case is not conclusive of the suitability of the candidates in the post concerned. If a person is acquitted or discharged, it cannot always be inferred that he was falsely involved or he had no criminal antecedents. Unless it is an honourable acquittal, the candidate cannot claim the benefit of the case. What is honourable acquittal, was considered by this Court in Inspector General of Police v. S. Samuthiram [Inspector General of Police v. S. Samuthiram, (2013) 1 SCC 598 : (2013) 1 SCC (Cri) 566 : (2013) 1 SCC (L&S) 229] , in which this Court held as under: (SCC p. 609, para 24) "24. The meaning of the expression "honourable acquittal" came up for consideration before this Court in RBI v. Bhopal Singh Panchal [RBI v. Bhopal Singh Panchal, (1994) 1 SCC 541 : 1994 SCC (L&S) 594] . In that case, this Court has considered the 17 | Page 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."
13. It is thus well settled that acquittal in a criminal case does not automatically entitle him for appointment to the post. Still, it is open to the employer to consider the antecedents and examine whether he is suitable for appointment to the post. From the observations of this Court in Mehar Singh [Commr. of Police v. Mehar Singh, (2013) 7 SCC 685 : (2013) 3 SCC (Cri) 669 : (2013) 2 SCC (L&S) 910] and Parvez Khan [State of M.P. v. Parvez Khan, (2015) 2 SCC 591 :
(2015) 1 SCC (L&S) 544] cases, it is clear that a candidate to be recruited to the police service must be of impeccable character and integrity. A person having criminal antecedents will not fit in this category. Even if he is acquitted or discharged, it cannot be presumed that he was honourably acquitted /completely exonerated. The decision of the Screening Committee must be taken as final unless it is shown to be mala fide. The Screening Committee also must be alive to the importance of the trust reposed in it and must examine the candidate with utmost character."
20. Therefore, looking to the aforesaid all discussions, in view of this court the OA is liable to be dismissed. Hence, OA is dismissed. If any M.A. is pending, that shall be treated as disposed-off.
(Mohan Pyare) (Justice B.K. Shrivastava)
Member (A) Member (J)
Sushil
18 | Page