Karnataka High Court
K. Kannan S/O Kadaswamy vs The Cotton Corporation Of India Ltd., & ... on 29 July, 2013
Equivalent citations: 2014 (1) AKR 142
Author: Mohan M Shantanagoudar
Bench: Mohan .M. Shantanagoudar
1
IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT GULBARGA
TH
®
DATED THIS THE 29 DAY OF JULY, 2013
BEFORE
THE HON'BLE MR.JUSTICE MOHAN .M. SHANTANAGOUDAR
WRIT PETITION NO.86389/2012(S-RES)
BETWEEN:
K.Kannan S/o Kandaswamy
Age: 62 years. Occ: Nil
(Ex. Cotton Purchase Officer
Cotton Corporation of India Ltd.,)
R/o H.No.11-394, Behind Kori math
Dhanagar Galli, Brahmpur
Gulbarga
...Petitioner
(Sri P.Vilas Kumar &
Sri Shivalok N. Talwar, Advocates)
AND:
1. The Cotton Corporation of India
Limited, Through its
Chairman/Managing
4th Floor, Plot No.3a
Kapas Bhavan
Near Cidco Bhavan, Belapur
2
Navi Mumbai, MH - 400 614
2. The Branch Manager
The Cotton Corporation
of India Ltd.,
3rd Floor, WB Plaza, NCM
Hubli-580 029
3. The Chief General Manager (Mktg.)
& Appellate Authority
"Kapas Bhavan" Plot No.3A
Sector 10, CBD Belapur
Navi Mumbai - 400 614
... Respondents
(By Sri S.G. Kadadakatti, Advocate for R1 to R3)
This Writ Petition is filed under Articles 226 & 227
of the Constitution of India, praying to issue a writ of
mandamus directing the respondents to pay the entire
arrears of salary and all other consequential benefits
treating the petitioner to be in service through out, as if
there being no order of removal and as if there being no
order of confirmation of order of removal, in the interest
of justice as per the request made by the petitioner
dated 11.05.2012 which is at Annexure-H in view of
acquittal order passed by the CJM Raichur passed in
C.C.No.1/2003 dated 25.02.2011 which is at Annexure-
G and etc.
This Writ Petition coming on for dictating order
this day, the Court made the following:
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ORDER
Petitioner has sought for a direction to pay entire arrears of salary and all other consequential benefits treating the petitioner to be in service throughout as if there being no order of removal.
Petitioner was working as Cotton Purchase Officer under respondents. He was posted in the said post at Raichur Centre, Raichur Branch Office, Cotton Corporation of India Limited (for short 'Corporation') on 30.10.2001. He being Centre incharge would be head of the particular Centre. Assistants were provided to him by the Branch Office to assist him in discharging the day to day work of the Centre as per the work allocation given by the Centre incharge. Petitioner was given the entire responsibility of purchasing and processing at different factories engaged in Raichur Centre and in turn petitioner was issued an office order dated 4 01.02.2002 allocating work as Raichur Centre Incharge. As could be seen from the said office order dated 01.02.2002 petitioner is responsible for the purchase and to monitor quality etc.
2. While working as a Centre Incharge, certain allegations were made against him. The main allegation was that he misappropriated 1177.99 quintals of cotton seeds of NHH-44 variety valued about Rs.9,111.35 for his use and caused financial loss to the Corporation. He did not inform to the Branch Office about the correct and actual stock of the cotton seeds; colluding with the factory owners the petitioner had allegedly kept the Branch Office in dark by giving incorrect information and succeeded in managing the things to his convenience; surprise visit was made by Assistant Manager (Vigilance); on conducting verification of physical stocks of different factories and the records 5 maintained by concerned factories and after thorough verification of records it was found that the petitioner has allegedly misappropriated 1177.99 quintals of cotton seeds in different factories of Raichur Centre. Petitioner absconded from work place from 27.07.2002 to 27.09.2002 to avoid his arrest as is clear from the police records as well as the records maintained by the Corporation. He appeared before police only after getting the order of anticipatory bail.
3. Domestic enquiry was decided to be conducted against petitioner. The articles of charges were prepared and were served on the petitioner. Petitioner tendered his reply on 18.06.2003. The disciplinary authority being dissatisfied with the reply of the petitioner, held domestic enquiry against the petitioner for the misconduct committed by him and appointed the retired District Judge as Enquiry Officer. An 6 independent Presenting Officer was also appointed. The Corporation in order to prove charges leveled against the petitioner examined 13 witnesses and got marked 45 documents. The witnesses were cross-examined by the petitioner. In his defence, the petitioner examined certain witnesses. Enquiry Officer after considering the material on records and after hearing, submitted his report dated 22.06.2004 holding that out of 10 charges leveled against petitioner, charge Nos.1 to 9 were held to be proved and the charge No.10 was not proved. The Disciplinary Authority considering the enquiry report and on due application of his mind passed the impugned order. Before passing the impugned order a show cause notice came to be issued by the Disciplinary Authority to the petitioner in respect of charge No.10 also. The petitioner did not choose to submit his reply to the show cause notice. The Disciplinary Authority after considering the material on record concluded that 7 charge No.10 also is proved. He also concurred with the conclusion reached by the Enquiry Officer with regard to charge Nos.1 to 9. Thus, in effect all the charges were held to be proved against the petitioner by the Disciplinary Authority. The Disciplinary Authority imposed major penalty of removal of petitioner from service of the Corporation as per Rule 23 (f) of the CCI (CDA) Rules, 1975. As against the order passed by the Disciplinary Authority the petitioner filed an appeal before the Appellate Authority under Rule 32 the CCI (CDA) Rules, 1975. The Appellate Authority after considering the matter on merits and after hearing found that the enquiry conducted by the Corporation was strictly in accordance with rules and the same was fair and reasonable. The Appellate Authority by assigning cogent reasons agreed with the findings of the Disciplinary Authority, consequently dismissed the appeal confirming the order of removal on 06.01.2005. 8 The said orders passed by the Disciplinary Authority as well as the Appellate Authority had attained finality, inasmuch the petitioner did not chose to question the said orders till filing of this writ petition.
4. In the meanwhile criminal proceedings were initiated against the petitioner in C.C.No.1/2003 before Chief Judicial Magistrate, Raichur. The petitioner was tried for the offences punishable under Sections 406 and 409 read with Section 34 of the Indian Penal Code along with other accused. The Criminal Court by its judgment dated 25.02.2011 acquitted the accused on the ground that the prosecution has failed to bring home the guilt against the petitioner beyond reasonable doubt. After acquittal in the criminal case, the petitioner has filed this writ petition on 02.11.2012 praying for the following reliefs:
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"a) Issue a writ of Mandamus directing the respondents to pay the entire arrears of salary and all other consequential benefits treating the petitioner to be in service though out, as if there being no order of removal and as it there being no order of confirmation of order of removal, in the interest of justice as per the request made by the petitioner dated 11.05.2012 which is at Annexure-H in view of acquittal order passed by the CJM Raichur in CC No.1/2003 dated 25.02.2011 which is at Annexure-G.
b) Consequently, the Hon'ble Court may be pleaded to set aside the order of removal passed by Respondent No.2 dated 1.9.2004 at Annexure-E Ref CCI/RCR/VIG/DE-
KK/2004-2005/13070 and which has been confirmed."
5. Sri. P.Vilas Kumar, learned Advocate for the petitioner submits that in view of honorable acquittal of the petitioner by Criminal Court in C.C.No.1/2003, the 10 orders passed by the Disciplinary Authority as well as the Appellate Authority are liable to be quashed; the Criminal Court based on the very facts and charges tried the petitioner and other accused; the prosecution has adduced evidence of all the relevant witnesses who are material to the case including the senior officers of Cotton Corporation of India, but their evidence is disbelieved by the Criminal Court; the order passed by the Disciplinary Authority as well as the Appellate Authority are rendered nugatory in view of judgment in criminal case; more particularly when the very witnesses were examined and the very documents were relied upon for in the domestic enquiry. The sum and substance of the argument of Sri. Vilas Kumar is that there cannot be two findings on the same set of facts and since the finding is recorded by the Criminal Court, the same should be preferred to the finding recorded by 11 the Disciplinary Authority as well as the Appellate Authority.
The writ petition is opposed by Sri.S.G.Kadadakatti, learned Advocate appearing on behalf of the respondents - Corporation by filing statement of objections. He submits that the prosecution has not examined all the relevant witnesses of Corporation before the Criminal Court but has examined only four witnesses out of 13 witnesses examined in the domestic enquiry; the petitioner has admitted in the domestic enquiry that he did not inform the Branch Manager regarding missing of seeds; till the judgment of the criminal case, the petitioner did not chose to question the orders passed by the Disciplinary Authority as well as the Appellate Authority and there is long delay of 7 years in filing this writ petition; the petitioner himself has issued "no due certificate" to the 12 Corporation on 03.02.2010 as per Annexure-'R10' to the effect that he does not have any claim against the Corporation and therefore it is not open for the petitioner to make the first prayer mentioned supra; the proceedings were initiated against the petitioner for recovery of loss caused by the petitioner under the provisions of Gratuity Act and the order came to be passed against the petitioner on 10.06.2005 which has attained finality; the petitioner has suppressed not only the "no due certificate" issued by him but also the order passed under Gratuity Act against him and therefore the petitioner has not approached this Court with clean hands; the petitioner is not acquitted honorably in the Criminal Court inasmuch as the Criminal Court has acquitted on the ground that the prosecution has not proved its case beyond reasonable doubt. On these along with other grounds he prays for dismissal of the writ petition.
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6. Sri. Vilas Kumar, learned Advocate for the petitioner relying upon the judgment in the case of Hardwari Lal and State of U.P. and others in Civil Appeal No.6118 of 1999 submits that the order of dismissal passed against the petitioner needs to be quashed since the material on record is not sufficient to conclude against the petitioner. He further submits that non-examination of two important witnesses renders the order of termination illegal. He relied upon the judgment of the Supreme Court in the case of Roop Singh Negi Vs. Punjab National Bank and others reported in (2009) 2 SCC 570 to contend that the orders of Disciplinary Authority as well as the Appellate Authority are not supported by any reason; the suspicion however high may be, can under no circumstances be held to be a substitute for legal proof. 14
Such submission cannot be accepted. The material on record particularly the evidence of 13 witnesses in the domestic enquiry who are examined on behalf of the Corporation would be sufficient to bring home guilt against the petitioner.
7. There cannot be any dispute that if the order of the Disciplinary Authority as well as the Appellate Authority are not supported by any reason, they are liable to be quashed. But in the matter on hand this Court finds that the orders passed by the Disciplinary Authority as well as the Appellate Authority are well reasoned. The each and every aspect of the case is discussed by the Disciplinary Authority as well as the Appellate Authority. The evidence of all the 13 witnesses is discussed. The petitioner is given opportunity to cross-examine. He also examined witnesses on his behalf. Thus, it is not open for the 15 petitioner to contend that the orders passed by the Authorities are unreasoned.
8. The Apex Court in the case of G.M. Tank Vs. State of Gujarat reported in (2006) 5 SCC 446 has observed that when there is an honorable acquittal of an employee during the pendency of the proceedings challenging the dismissal, the same requires to be taken note of. In the matter on hand, as aforementioned the Disciplinary Authority has passed the order as back as on 01.09.2004. The Appellate Authority has confirmed the order passed by the Disciplinary Authority on 06.01.2005. At that point of time, though the criminal proceedings were initiated against the petitioner, the trial was yet to begin. In the criminal case, the recording of evidence was started on 27.12.2006. The recording of evidence was closed on 09.03.2010. The judgment of acquittal was passed on 25.02.2011. Since 16 the judgment of acquittal was subsequent to the order passed by the disciplinary authority there was no occasion for the Disciplinary Authority to consider the findings given by the Criminal Court. Had the order of acquittal passed by the Criminal Court been in existence during the subsistence of disciplinary proceedings, the Disciplinary Authority would have definitely considered the effect of the judgment of the Criminal Court also. On the other hand, in this case the criminal case was decided after seven years from the date of the order passed by the Disciplinary Authority.
9. It is by now well settled that the scope of disciplinary proceedings and scope of criminal proceedings in a Court of criminal law are quite distinct, exclusive and independent of each other. The standard of proof required in recording of finding of conviction in a criminal case and in a departmental proceedings are 17 distinct and different. Whereas in a criminal case it is essential to prove the charge beyond all reasonable doubt, in a departmental proceedings preponderance of probability would serve the purpose. It is also by now well settled that if an employee has been acquitted in criminal charge, the same by itself would not be a ground not to initiate departmental proceedings against him or to drop the same in an event of an order of acquittal is passed. The initiation of departmental proceeding is permissible even after the order of acquittal is recorded by the Criminal Court. But the same would not mean that a proceeding would be initiated only because it is lawful to do so. The departmental proceeding could be initiated if the department intend to adduce any evidence which is in its power and possession to prove the charges against the delinquent officer. Such a proceeding must be initiated bonafide. Thus, the disciplinary action after 18 acquittal of the delinquent officer in criminal case depends upon the facts and circumstances of each case. However, the action of the disciplinary authority must be reasonable and fair. There is no hard and fast rule that the disciplinary action should not be initiated after acquittal of the official in a criminal case. It all depends upon the facts and circumstances of each case. As aforementioned, the standard of proof required in departmental proceedings is not the same as required to prove a criminal charge and even if there is acquittal in the criminal proceedings, the same does not bar the departmental proceedings. It is also equally true that if the delinquent employee is honorably acquitted, the same should be given due credence during the departmental enquiry proceedings. All these facts are kept in mind while deciding this matter.
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However, in this matter, I find that the accused is not acquitted honorably. The two proceedings, criminal and departmental, are entirely different. They operate in different fields in different objectives. Whereas the object of criminal trial is to inflict appropriate punishment on the offender, the purpose of enquiry proceedings is to deal with the delinquent departmentally and to impose penalty in accordance with the service rules. The strict rules of evidence and evidence would not apply to departmental proceedings.
10. As aforementioned, in the matter on hand this Court does not find that the petitioner was acquitted honorably. On the other hand, the order of acquittal was passed by the Criminal Court for the following reasons:
Total 11 witnesses were examined in the criminal case. Out of them, PW-1 to PW-4 were only the 20 departmental officers i.e. Corporation officers. PWs-5, 9 and 10 were all police officers who were part of the investigation team. Their evidence is of no use to bring home guilt inasmuch as they do not have personal knowledge of the records of Corporation. Other witnesses viz. PWs-6, 7 and 11 are all Hamalis/ Coolies working in the APMC Yard. All of them have turned hostile. Thus their evidence is also of no use to the case of the prosecution. What remained was the evidence of PWs-1 to 4. The Criminal Court, in the absence of support from PWs-6, 7 and 11, did not prefer to believe the evidence of PWs-1 to 4 who are the officers of Corporation. Though PWs-1 to 4 supported the case of the prosecution, their evidence was not given due credence by the Criminal Court only on the ground that their evidence was not supported by independent witness. In that context, the Criminal Court acquitted the petitioner by concluding that the prosecution has 21 failed to prove beyond reasonable doubt that the accused (including petitioner) have committed the offences punishable under Sections 406 and 409 of IPC. In the criminal case, only four officers of Corporation were examined by the prosecution. In this view of the matter, the petitioner's contention that he was honorably acquitted cannot be accepted.
11. In the domestic enquiry, as many as 13 witnesses were examined, about 45 documents were produced. Out of 13 witnesses who are examined in the domestic enquiry, only three witnesses were examined before the Criminal Court by the prosecution. One of the witnesses of the Corporation who is examined before Criminal Court is not examined in domestic enquiry by the Corporation. Thus, it is not open for the petitioner to contend that all the witnesses who were examined in the domestic enquiry were examined before the Criminal 22 Court. For the best reasons known to the public prosecutor who had conducted the criminal case, he has not examined other ten witnesses who are relevant to prove the guilt of the petitioner; only three witnesses of Cotton Corporation of India were examined from out of 13 witnesses examined before the domestic enquiry. It is not a case wherein the same witnesses who were examined in the Domestic Enquiry were examined before the Criminal Court. Thus it is amply clear that it is not a case of honorable acquittal of the petitioner in criminal case.
12. The very fact that the petitioner had kept quite for seven years from the date of dismissal of the departmental appeal filed by him itself clearly reveals that the petitioner was satisfied with the result rendered by the Disciplinary Authority and the Appellate Authority. In addition to the same, as is clear from 23 Annexure-'R10', the petitioner himself has issued "no due certificate" to the Corporation on 03.02.2010 intimating the Corporation that he does not have any claim against the Corporation. Moreover, the order came to be passed against the petitioner on 10.06.2005 under the provisions of Gratuity Act for recovery of certain losses caused by the petitioner. The said order has also remained unquestioned. The certificate as well as the order aforementioned are not adverted to in the writ petition inasmuch as the petitioner has suppressed the said material facts.
13. The entire material on record clearly reveals that the orders passed by the Disciplinary Authority and the Appellate Authority are just and proper. Hence, the petitioner cannot claim any monetary benefit from the employer.
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In view of the above, this Court does not find any ground to grant the reliefs as prayed by the petitioner. Accordingly, petition fails and the same stands dismissed.
Sd/-
JUDGE swk