THE HONOURABLE MR v. G.Sivaramakrishnan2. The Registrar

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 11.1.2007CORAM:THE HONOURABLE MR.JUSTICE F.M.IBRAHIM KALIFULLAANDTHE HONOURABLE MR.JUSTICE S.K.KRISHNANW.P.No.19847 of 2001& W.M.P.No.29255 of 20011. Union of India rep. by Postmaster-General, Tamilnadu Circle, Chennai-600 002.2. Sr. Supdt. of RMS, Railway Mail Service, 'T' Division, Tiruchy-620 001.3. The Head Record Officer, Railway Mail Service, 'T' Division, Tiruchy-620 001. .. Petitionersvs.1. G.Sivaramakrishnan2. The Registrar, Central Administrative Tribunal, Chennai Bench-600 104. .. RespondentsWrit Petition filed under Article 226 of the Constitution of India,praying for issuance of a writ of certiorari, calling for the records ofthe second respondent, dated 27.4.2000 in O.A.No.554 of 1998 and quash theorder.For petitioners : Mr.E.R.K.Moorrthy, CGSSC.For respondent-1 : Mr.L.Chandrakumar R2 Tribunal ORDER(The Order of the Court was made by F.M.Ibrahim Kalifulla,J.)The Union of India represented by the Postmaster General, TamilNadu Circle, Chennai-600 002, The Senior Superintendent of Railway MailService, 'T' Division, Tiruchy-620 001 and the Head Record Officer,Railway Mail Service, 'T' Division, Tiruchy-620 001, are the petitioners. 2. The challenge in the Writ Petition is to the order of theCentral Administrative Tribunal, dated 27.4.2000 passed in O.A.No.554 of1998, in and by which the Tribunal, while setting aside the order ofremoval from service in respect of the first respondent, dated 22.1.1997as well as the rejection of his appeal petition, by order dated 24.2.1998,directed the petitioners herein to restore the first respondent herein to https://hcservices.ecourts.gov.in/hcservices/ duty within one month from the date of receipt of a copy of the order andalso held that the first respondent was not entitled for any monetarybenefits for the period from the date of removal till the date ofreinstatement.3. The brief facts which led to the passing of the above order ofthe Tribunal, can be stated as under:The first respondent who joined as a Mail Mazdoor in the RailwayMail Service in the year 1982, was posted as an Extra-Departmental MailMan. On 8.7.1994, when the first respondent was on duty at 7.30 hours,affixing the date stamp impressions on the advance work papers for10.7.1994, it was noticed by his higher authority, oneThiru.S.Hirudayaraj, C.M.A. that the first respondent was in anintoxicated mood. The said Hirudhayaraj was stated to have advised thefirst respondent to report to the H.R.O. on the next day by cancelling hisduty. It is stated that after some altercation, he left the scene andreturned back at 22.30 hours in an intemperate mood and argued with somevehemence with the C.M.A. on duty. At that point of time, oneThiru.P.Muthukumar, the officiating I.R.M., who was present at the scene,advised the first respondent to contact the H.R.O. on the next day turningdown his request. In the course of the said altercation, the firstrespondent was stated to have suddenly attacked the said I.R.M. with an'aruval' at 22.45 hours, causing him bleeding and cut injuries. When thefirst respondent was about to attack the I.R.M. for the second time,Thiru.Hirudayaraj, C.M.A. appeared to have prevented the first respondentand in that process, the first respondent was stated to have causedbleeding injuries on both his palms.4. On the above stated incident, a criminal complaint was stated tohave been made, wherein the first respondent was proceeded against in theCriminal Court for the offences falling under Sections 332, 333 and 307IPC. In the Criminal Court, the first respondent was acquitted by orderdated 4.7.1996. 5. There were also departmental proceedings initiated against thefirst respondent, in which Thiru.P.Muthukumar, the officiating I.R.M. andThiru.Hirudayaraj, C.M.A. were examined as witnesses. The first respondentfully participated in the enquiry and the enquiry officer submitted hisreport, dated 10.7.1996, holding that the charges levelled against thefirst respondent were conclusively proved. Based on the findings of theenquiry officer, by order dated 22.1.1997, the first respondent wasremoved from service. The first respondent preferred an appeal petitiondated 8.4.1997, which was subsequently dismissed by order dated 24.2.1998.6. As against the above said orders dated 22.1.1997 and 24.2.1998,the first respondent preferred O.A.No.554 of 1998 and the Tribunal, by theimpugned order, held that when once the first respondent has beenacquitted by the Criminal Court on merits, the petitioners should not haveproceeded against and pass the order of removal from service. It was onthat basis, the Tribunal while setting aside orders impugned before it,directed the petitioners herein to restore the first respondent herein toduty and the Tribunal however held that the first respondent was notentitled for any monetary benefits for the period from the date of removaltill the date of reinstatement. https://hcservices.ecourts.gov.in/hcservices/

7. Assailing the order of the Tribunal, Mr.E.R.K.Moorrthy, learnedStanding Counsel for the Central Government appearing for the petitioners,contended that since the Supreme Court has taken a consistent view thatcriminal proceedings and departmental action travel on two differentplanes and the acquittal by the Criminal Court need not always deter thedepartment from proceeding against the delinquent and pass appropriateorder of punishment, the Tribunal was not justified in interfering withthe order of removal passed against the first respondent, especially whenthe charge against the first respondent was serious, in that, he causedbleedings and cut injuries to his co-employee. The learned StandingCounsel also relied upon the decisions of the Supreme Court reported in2006 (2) SCC 584 (South Bengal State Transport Corporation vs. Sapan KumarMitra) and 2004 (6) SCC 482 (Allahabad District Cooperative Bank Ltd.,Allahabad vs. Vidhya Varidh Mishra) and a decision of a Division Bench ofthis Court reported in 2005 (1) CTC 625 (The Management of ThiruvalluvarTransport Corporation vs. S.Anthonysamy ) in support of his submissions.8. As against the above submissions, Mr.L.Chandrakumar, learnedcounsel appearing for the first respondent, by relying upon a decision ofthe Supreme Court reported in 2006 (5) SCC 446 (G.M.Tank vs. State ofGujarat), contended that when once an employee has been honourablyacquitted in a Criminal trial, the order of removal from service cannot besustained. The learned counsel for the first respondent also contendedthat the Tribunal, having only directed reinstatement without any monetarybenefits for the period of non-employment, the same does not call for anyinterference. 9. Having heard the learned counsel for the respective parties, weare of the view that in the light of the consistent view of the SupremeCourt on the question as to the authority or power of the Department toproceed against an employee in respect of a misconduct which was based onthe same set of facts with reference to which the criminal proceedingswere also initiated, which ultimately ended in acquittal, the Departmentis entitled to make an assessment of the evidence differently in thedepartmental proceedings for the purpose of passing final order ofpunishment, it will have to be held that the impugned order of theTribunal cannot be sustained.10. On the above issue, we wish to be guided by a recent decisionof the Supreme Court reported in 2006 (2) SCC 584 (supra) and inparagraphs 9 and 10 of the said judgment, the Supreme Court has succinctlystated the legal position as under: "9. We have heard the learned counsel for theparties and also examined the relevant records of thiscase. Although the Division Bench had not categoricallysaid that the departmental proceeding could not becontinued and punishment could not be imposed on thedelinquent employee when the criminal case ended inacquittal, even then the learned counsel for therespondents sought to argue this ground before us. Inour view, this ground is no longer res integra. InNelson Motis v. Union of India (1992 (4) SCC 711 :1993 SCC (L & S) 13 : 1993 (23) ATC 382) a three-JudgeBench of this Court observed at SCC p.714, para 5, asfollows: https://hcservices.ecourts.gov.in/hcservices/ "5. So far the first point isconcerned, namely whether the disciplinaryproceedings could have been continued in theface of the acquittal of the appellant in thecriminal case, the plea has no substancewhatsoever and does not merit a detailedconsideration. The nature and scope of acriminal case are very different from thoseof a departmental disciplinary proceeding andan order of acquittal, therefore, cannotconclude the departmental proceeding.Besides, the Tribunal has pointed out thatthe acts which led to the initiation of thedepartmental disciplinary proceeding were notexactly the same which were the subject-matter of the criminal case." (emphasis supplied)10. Similarly, in Senior Supdt. of Post Officesv. A.Gopalan (1997 (11) SCC 239 : 1998 SCC (L & S)124) the view expressed in Nelson Motis v. Union ofIndia (1992 (4) SCC 711 : 1993 SCC (L & S) 13 : 1993(23) ATC 382) was fully endorsed by this Court andsimilarly it was held that the nature and scope ofproof in a criminal case is very different from that ofa departmental disciplinary proceeding and the order ofacquittal in the former cannot conclude thedepartmental proceedings. This Court has further heldthat in a criminal case charge has to be proved byproof beyond reasonable doubt while in departmentalproceeding the standard of proof for proving the chargeis mere preponderance of probabilities. Such being theposition of law now settled by various decisions ofthis Court, two of which have already been referred toearlier, we need not deal in detail with the questionwhether acquittal in a criminal case will lead toholding that the departmental proceedings should alsobe discontinued. That being the position, an order ofremoval from service emanating from a departmentalproceeding can very well be passed even after acquittalof the delinquent employee in a criminal case. In anycase, the learned Single Judge as well as the DivisionBench did not base their decisions relying on theproposition that after acquittal in the criminal case,departmental proceedings could not be continued and theorder of removal could not be passed."11. In the earlier decision of the Supreme Court reported in 2004(6) SCC 482 (supra), the Supreme Court has stated the above legal positionin an emphatic manner in paragraph 12, which is to the following effect:"12. Mr.Rao submitted that the respondent hadbeen exonerated by the criminal court. He submittedthat the termination was only on the basis of hisconviction. He submitted that as his conviction is setaside, the courts below were right in reinstating therespondent. We are unable to accede to this https://hcservices.ecourts.gov.in/hcservices/ submission. The termination was pursuant to adisciplinary inquiry. It is settled law that in adisciplinary inquiry a conclusion different from thatarrived at by a criminal court, may be arrived at. Thestrict burden of proof required to establish guilt ina criminal court is not required in disciplinaryproceeding. The respondent had not claimed that thedisciplinary proceedings were not concluded fairly.As the termination was based on findings of theDisciplinary Committee, the fact that the appellatecourt exonerated the respondent was of noconsequence." This decision of the Supreme Court has also been applied by the FirstBench of this Court in the decision reported in 2005 (1) CTC 625 (supra).12. On a fair reading of the above referred to decisions of theSupreme Court as well as the Division Bench of this Court, the position iscrystal clear that while in the Criminal Court, the charge has to beproved by proof beyond reasonable doubt, the same is not the case in theDepartmental proceedings, where the standard of proof for proving thecharge is mere preponderance of probabilities. 13. The Supreme Court having stated that the said position of lawis well settled by a catena of decisions of the Supreme Court, as held inthe decision reported in 2006 (2) SCC 584 (supra), it will be travesty ofjustice if in respect of the case where the first respondent was stated tohave caused bleeding and cut injuries on his co-employee in the course ofhis employment in the Railway Mail Service, which conduct of the firstrespondent was duly explained by the concerned person who suffered suchbleeding injuries, before the Departmental enquiry officer, it will bewholly improper and inexpedient to ignore the said findings of the enquiryofficer and the ultimate order of removal from service passed by thepetitioners and direct reinstatement by simply stating that the firstrespondent was acquitted by the Criminal Court on the very same set offacts. Therefore, being guided by the decisions of the Supreme Court, weare unable to sustain the order of the Tribunal in directing reinstatementof the first respondent.14. As far as the other decision of the Supreme Court reported in2006 (5) SCC 446 (supra) is concerned, it is true that the Supreme Courthas held that if an employee is honourably acquitted by the Criminal Courteven during the pendency of the proceedings challenging the dismissal, thedismissal order cannot be sustained. But on a careful consideration ofthis decision of the Supreme Court, we find that the Supreme Court hasmade a thorough examination of the pleadings, evidence and the chargeinvolved in that case and on a detailed reference to the evidenceavailable on record, the Supreme Court has found that the Criminal Court'sconclusion was based on thorough examination of the facts involved and inview of the said overwhelming evidence that was placed before the CriminalCourt with regard to the offence charged under Section 5(1)(e) read withSection 5(2) of the Prevention of Corruption Act, which was found to benot proved, the Supreme Court took the view that in spite of the acquittalwhich was out and out on merits, in the absence of any evidence to provethe charge, the order of dismissal from service cannot be sustained afteracquittal. We find no comparison of the facts involved therein to the https://hcservices.ecourts.gov.in/hcservices/ case on hand where the first respondent was charged with the seriousoffence of misconduct of causing bleeding injuries on a co-employee in thecourse of his employment with the petitioners. Therefore, the saiddecision being clearly distinguishable, cannot be applied to the facts ofthis case.15. Therefore, we find no scope to sustain the order of theTribunal impugned in this Writ Petition. The impugned order of theTribunal is set aside. The order of removal from service, dated 22.1.1997and the rejection order by the appellate authority dated 24.2.1998, arerestored. The Writ Petition stands allowed. No costs. W.M.P. is closed.csSd/-Asst.Registrar/true copy/ Sub Asst.RegistrarTo1. The Post master-General, Union of India,Tamilnadu Circle, Chennai-600 002.2. The Sr. Supdt. of RMS, Railway Mail Service, 'T' Division, Tiruchy-620 001.3. The Head Record Officer, Railway Mail Service, 'T' Division, Tiruchy-620 001.4. The Registrar, Central Administrative Tribunal, Chennai Bench-600 104.+1 cc to Mr.E.R.K.Moorthy, Advocate Sr.No.2721.+1 cc to Mr.L.Chandrakumar,Advocate Sr.No.2528.NKT(CO)dcp/30.1.07.W.P.No.19847 of 2001