Naresh Kumar v. State of Haryana & Ors.

In response to a notice, respondent-defendants had filed a written statement, raising a preliminary objection that the suit was premature on the ground that he had not filed any departmental appeal against the order of punishment. On merits, it is stated that the work and conduct of the appellant was not satisfactory and that he was suspended and charge sheeted for misbehaving, quarreling and beating his senior officer while he was under the influence of liquor. It is conceded that the police had also registered a case against him under Sections 323 and 506 IPC. The enquiry was held Regular Second Appeal No.2574 of 2009 (O&M) :{ 3 }: on the charge sheet issued to the appellant and on the basis of evidence produced, the Enquiry Officer found him guilty for the charges. It is not disputed that the appellant was acquitted by the Court in a criminal case but the order passed by the Punishing Authority is justified on the basis of evidence and material collected during the enquiry. Sub Inspector, Raj Singh (Defendant No.4) had filed a separate written statement, revealing that the appellant while under the influence of liquor had caught hold him and had abused him and had caused him injuries on the left hand and leg in the presence of other persons. On the basis of pleadings following issues were framed:- “1. Whether the plaintiff is entitled to declaration and mandatory injunction as prayed for? OPP

2. Whether the suit is pre-mature? OPD

3. Whether the plaintiff has no cause of action to file the present suit? OPD

4. Whether the suit is bad for non-joinder of necessary parties? OPD

5. Whether the plaintiff has not approached this court with clean hands? OPD

6. Whether the suit is barred by the principle of res- judicata? OPD

7. Relief.” The Trial Court decreed the suit, against which the State filed an appeal and the Appellate Court has reversed the finding, which is now impugned by the appellant before this Court. Regular Second Appeal No.2574 of 2009 (O&M) :{ 4 }: The submission, which was mainly advanced before the first Appellate Court, is repeated here as well and is to the effect that acquittal of the appellant from the criminal case for the same allegation where the evidence is also the same would conclude the departmental proceedings as well, and, thus, the order of punishment would be bad on this ground alone. In support, learned counsel for the appellant has drawn my attention to Capt.M.Paul Anthony Vs. Bharat Gold Mines Ltd. And another, 1999 Lab.I.C 1565. On the other hand, State counsel would refer to NOIDA Entrepreneurs Assn. Vs. NOIDA & Ors., AIR 2007 Supreme Court 1161 to say that termination of a departmental proceedings on withdrawal of criminal charges is not necessary. It is observed that the object and purpose of departmental enquiry and of prosecution is different. It is also held that a crime is an act of violation of law or omission of public duty and departmental enquiry is to maintain the discipline and efficiency in public service. Finding, thus, is that there would be no bar to proceed simultaneously with both, unless the criminal charge is of grave nature, involving complicated questions of fact and law and there is likelihood of serious prejudice to the delinquent. Reference is also made to South Bengal State Transport Corpn. Vs. Swapan Kumar Mitra and others, AIR 2006 Supreme Court 3533 where the Hon'ble Supreme Court has held that acquittal in criminal proceedings does not in itself make the departmental proceedings not maintainable. The Hon'ble Supreme Court has gone into the nature and scope of proof in criminal case, which was held to be varying from that of the departmental Regular Second Appeal No.2574 of 2009 (O&M) :{ 5 }: disciplinary proceedings. As observed in this case, criminal charge has to be proved by proof beyond reasonable doubt while in the departmental proceedings the standard of proof is by mere preponderance of probabilities and order of punishment still can be passed. In Allahabad District Co-operative Bank Ltd., JT 2004 (6) 349, it is held that acquittal in criminal proceedings can not be a ground for setting-aside the termination as a matter of course. As per the counsel, it is a settled law that in a disciplinary enquiry a conclusion different from that arrived by criminal court may be arrived at and that the strict burden of proof required to establish guilt in a criminal court is not required in the disciplinary proceedings. There is no doubt that the criminal case as well as the departmental proceedings primarily were on the basis of version given by Raj Singh, (defendant No.4), who was allegedly caused injuries by the appellant. The departmental enquiry was held after the criminal case where Raj Singh appeared and fully supported his complaint. Rather, he gave evidence to the effect that he had not deposed against the appellant in criminal trial due to fear and constant threat advanced to him by the appellant alongwith two other persons. Raj Singh was not confronted with his previous statement and no suggestion was given to him that what he was stating before the departmental enquiry was in contradiction to his version given before the criminal Court. The version of Raj Singh was corroborated by two other independent witnesses appearing on behalf of the Department, who had witnessed this assault. Even the appellant had not denied the fact that there was a quarrel and an assault but gave Regular Second Appeal No.2574 of 2009 (O&M) :{ 6 }: different reasons in this regard. He did not give any suggestion to complainant Raj Singh that he had not given beating to him. The finding by the Enquiry Officer, thus, was based on this evidence. The ratio of law laid down in Capt.M.Paul's case (supra) would not strictly apply in this case as this case can not be termed such a case where the evidence in the departmental proceedings and the criminal case can be said to be common. Witnesses may be common but the evidence certainly is not common and reasons have been given by the witnesses to so depose differently while appearing before the departmental enquiry. Thus, this can not be termed as a case where the commonness of evidence should conclude the departmental enquiry on the basis of a finding returned by the Courts trying the criminal case. Rather the ratio of law laid down in the cases of NOIDA Entrepreneurs Assn. (supra), South Bengal State Transport Corpn. (supra) and Allahabad District Co-operative Bank Ltd. (supra), would apply to the present case. In NOIDA Entrepreneurs Assn. (supra), the Court observed as under:- “The purpose of departmental enquiry and of prosecution is two different and distinct aspects. The criminal prosecution is launched for an offence for violation of a duty the offender owes to the society, or for breach of which law has provided that the offender shall make satisfaction to the public. So crime is an act of commission in violation of law or of omission of public duty. The departmental enquiry is to maintain discipline in the service and efficiency of public service. It would, therefore, be expedient that the disciplinary proceedings Regular Second Appeal No.2574 of 2009 (O&M) :{ 7 }: are conducted and completed as expeditiously as possible. It is not, therefore, desirable to lay down any guidelines as inflexible rules in which the departmental proceedings may or may not be stayed pending trial in criminal case against the delinquent officer. Each case requires to be considered in the backdrop of its own facts and circumstances. There would be no bar to proceed simultaneously with departmental enquiry and trial of a criminal case unless the charge in the criminal trial is of grave nature involving complicated questions of fact and law. Offence generally implies infringement of public duty, as distinguished from mere private rights punishable under criminal law. When trial for criminal offence is conducted it should be in accordance with proof of the offence as per the evidence defined under the provisions of the Indian Evidence Act, 1872 (in short the `Evidence Act'). Converse is the case of departmental enquiry. The enquiry in a departmental proceedings relates to conduct or breach of duty of the delinquent officer to punish him for his misconduct defined under the relevant statutory rules or law. That the strict standard of proof or applicability of the Evidence Act stands excluded is a settled legal position. Under these circumstances, what is required to be seen is whether the department enquiry would seriously prejudice the delinquent in his defence at the trial in a criminal case. It is always a question of fact to be considered in each case depending on its own facts Regular Second Appeal No.2574 of 2009 (O&M) :{ 8 }: and circumstances.” In this regard, reference can also be made to Depot Manager, A.P.State Road Transport Corporation Vs. Mohd. Yousuf Miya and Ors., 1997 (2) SCC 699 and State of Rajasthan Vs. B.K.Meena and Ors., 1996 (4) SCT 707 (SC). It has rightly been observed that there can not be a straight jacket formula as to in which case the departmental proceedings are to be held bound by the finding of the trial. The Hon'ble Supreme Court in this case has also made reference to Cap.M.Paul's case (supra). In South Bengal State Transport Corpn. (supra), the Hon'ble Supreme Court did not accept this line of submission. Rather, this aspect was found no longer res-integra in view of ratio of law laid down in Nelson Motis Vs. Union of India and others, 1993 (1) SCT 133, where it was observed as under:- “So far the first point is concerned, namely whether the disciplinary proceedings could have been continued in the face of the acquittal of the appellant in the criminal case, the plea has no substance whatsoever and does not merit a detailed consideration. The nature and scope of a criminal case are very different from those of a departmental disciplinary proceeding and an order of acquittal, therefore, cannot conclude the departmental proceeding. Besides, the Tribunal has pointed out that the acts which led to the initiation of the departmental disciplinary proceedings were not exactly the same which were the subject matter of the criminal case.” Regular Second Appeal No.2574 of 2009 (O&M) :{ 9 }: The above view was endorsed in the case of Sr.Superintendent of Post Offices, Pathamthitta and others Vs. A.Gopalan, 1997 (11) SCC 239. It has been held that the nature and scope of proof in a criminal case is very different from that of departmental disciplinary proceedings and the order of acquittal in the former can not conclude the departmental proceedings. Legal position is well settled that in a criminal case charge has to be proved by a proof beyond reasonable doubt while standard of proof in the departmental proceedings for proving a charge is mere preponderance of probabilities. In Allahabad District Co-operative Bank Ltd. (supra), again this argument was repelled by saying:- “We are unable to accede to this submission. The termination was pursuant to a disciplinary inquiry. It is settled law that in a disciplinary inquiry a conclusion different from that arrived at by a Criminal Court, may be arrived at. The strict burden of proof required to establish guilt in a Criminal Court is not required in disciplinary proceeding. The Respondent had not claimed that the disciplinary proceedings were not conducted fairly. As the termination was based on findings of the Disciplinary Committee, the fact that the Appellate Court exonerated the respondent was of no consequence.” In this view of the factual and legal position, the submission made by learned counsel for the appellant can not be accepted. Mere fact that the appellant was acquitted in the criminal case would not concluded the departmental proceedings as urged by him and this question of law has been rightly decided by the first Regular Second Appeal No.2574 of 2009 (O&M) :{ 10 }: Appellate Court. No interference in the Regular Second Appeal, thus, is called for. The Regular Second Appeal is accordingly dismissed. March 17, 2010 khurmi ( RANJIT SINGH ) JUDGE