Om Prakash Mahawar v. State of Rajasthan & anr

Order

9th September, 2011 PRESENT HON'BLE MR. JUSTICE MN BHANDARI Mr SP Sharma, Sr Adv with Mr Gaurav Sharma - for petitioner BY THE COURT: Aggrieved by the order of dismissal from service and the order dated 25.4.2000 passed by the appellate authority, this writ petition has been filed. Petitioner was appointed on the post of Nurse Gr II vide order dated 226.9.1992. He was served with the charge sheet on 18.11.1997 containing allegations of submission of forged mark sheet at the time of appointment and for absence from duty 2 since 6.8.1993 to 6.5.1996. After enquiry, the order of dismissal was passed. Departmental appeal preferred by the petitioner was also dismissed vide order dated 25.4.2006. Learned counsel for petitioner submits that before service of the charge sheet containing allegation of production of

forged mark sheet and absence from duty, an FIR was registered in the year 1995 followed by trial. After registration of criminal case, petitioner was served with charge sheet in the month of November, 1997. Petitioner made a representation to stay the departmental enquiry pending criminal case, however, his prayer was not accepted, rather, order of dismissal from service was passed on 18.10.2004. Appeal preferred by the petitioner was not properly considered and erroneously dismissed. A challenge to the departmental enquiry has been made on the ground that petitioner was not given fair opportunity to defend his case and, otherwise, no witness was produced by the department to prove the charges. In absence of oral evidence, charge was erroneously held to be proved by the Enquiry Officer. Referring to the enquiry report, learned counsel for petitioner submits that charges were held proved without material. Petitioner was, thereupon, served with the show cause notice along with a copy of the enquiry report by the disciplinary authority, however, 3 even disciplinary authority did not provide a fair opportunity to defend his case. As the prayer made to allow assistance of defence representative was not accepted thus principle of natural justice is violated. It has been contended that alleged forged mark sheet was of Ist Year (Science) Examination, 1986 but was not produced by the petitioner. In fact, one was not required to possess qualification of Ist Year examination to seek appointment on the post of Nurse Gr II. The mark sheet seems to have been produced by the complainant having some rivalry. It has lastly been contended that order of dismissal was made subject to final outcome of the trial in the criminal case. Petitioner has been acquitted in the criminal case though learned Additional Chief Judicial Magistrate erroneously recorded his finding that mere acquittal of the petitioner would not entitled him to continue in service, rather, disciplinary authority will keep in mind that petitioner failed in the examination in the year 1996. The aforesaid finding of the learned Magistrate is erroneous thus be deleted and, at the same time, set aside the impugned order of dismissal and order passed in the appeal. I have considered submissions of learned counsel and perused the record of the case carefully. 4 Since four issues have been raised by learned counsel to challenge the order of punishment and order passed in the appeal and the judgment in the criminal case, I am dealing with all the four issues separately. The first issue raised by the petitioner is that enquiry was not conducted in a fair and proper manner as petitioner was not provided fair opportunity to defend his case and, at the same time, no oral evidence was produced by the department to prove the charge. To appreciate the aforesaid argument, I have looked into the enquiry report and find that petitioner, at the first instance, tried to delay the enquiry by praying its stay pending criminal case. The aforesaid prayer was not accepted on the ground that there exist no bar to proceed with the departmental enquiry pending criminal trial. No challenge to the said decision has been made in the present writ petition thus I am not required to consider the aforesaid issue. Petitioner was called upon by the enquiry officer to produce his defence, however, from the month of May, 2000 till 5 March, 2003, petitioner failed to attend enquiry proceedings on twenty occasions and similar default was committed even by the departmental representative. Both of them remained present before the enquiry officer on few dates on which enquiry could proceed. The presenting officer for the department submitted written arguments and before which documents were produced to show that petitioner produced forged mark sheet of Ist Year while submitting application for appointment. The forgery committed by the petitioner was revealed when verification of his mark sheet was called from the University of Rajasthan, Jaipur. Petitioner, in fact, appeared in Ist Year examination with Roll No. 246 in the year 1986 and was declared failed. Petitioner, however, produced mark sheet of Roll No. 01116, Enrolment No.06/052327 of the year 1986, containing his name, however, on verification, it was found to be forged as aforesaid Roll No.01116 is of one Santosh Kumar son of Jagdish Prasad Verma. The enrolment No.06/052327 was of another student namely Suraj Narain Sharma son of BL Sharma. The enquiry officer thus considered the mark sheet submitted by the petitioner and the verification sent by the University of Rajasthan, Jaipur. Petitioner was given opportunity to produce original mark sheet and defend his case but he failed to produce the same and defend his case. He remained absent in the enquiry proceedings thus ex parte enquiry was held and charges were found proved. 6 I find that looking to the nature of the charge, it can be proved by a documentary evidence which exists in the present case. It is not mandatory to have oral evidence even if charge can be proved by documentary evidence. The verification of the mark sheet was called from the University of Rajasthan, Jaipur, wherein, mark sheet was found to be forged. Hence, in the facts and circumstances, it cannot be said that charges have wrongly been held proved against the petitioner. Now remains the charge of absence. The period of absence is nearly three years and it remained unexplained because as per the averment in the writ petition itself, petitioner was arrested on 7.5.1996 but, thereafter, was granted bail. The petitioner was placed under suspension vide order dated

25.7.1996 thus even during the course of arguments, learned counsel for petitioner could not submit justification for petitioner's absence since 6.8.1993 till the date of arrest. If, at all, there remains some justification for subsequent period. The period of absence since 6.8.1993 to 7.5.1996 is nearly 2 years 9 months prior to arrest of the petitioner. Looking to the facts available on record, it cannot be said that petitioner was not given proper opportunity to defend his 7 case by the enquiry officer or the charges were held proved erroneously. Petitioner was given sufficient opportunity which can be seen from the fact that enquiry proceedings remained pending for more than 5 years, wherein, petitioner remained absent in the proceedings on 20 occasions though similar is the case for departmental representative also. But the fact remains that petitioner was having sufficient opportunity to defend his case and, looking to the material available regarding proof of charge, I am not inclined to accept the first argument. So far as second argument is concerned, it pertains to the act of disciplinary authority. It is alleged that petitioner was deprived to appoint defence nominee while hearing was made by the disciplinary authority after issuance of show cause notice on receipt of the enquiry report. Perusal of the impugned order of dismissal reveals that aforesaid aspect has been dealt with by the disciplinary authority in reference to rule 16(5) of the Rajasthan Civil Services (Classification, Control & Appeal) Rules, 1958 (for short 'CCA Rules'). Petitioner was allowed assistance of defence representative by the enquiry officer vide order dated 13.4.2001 by nominating one Mr Sitaram Sharma. Vide subsequent order dated

6.2.2003, petitioner was permitted to nominate Mr Har Govind 8 Dayal as his defence nominee in place of earlier defence nominee Mr Sitaram Sharma. The aforesaid arrangements were allowed while enquiry was going on. There is no provision to have assistance of defence representative while show cause notice is served after conclusion of enquiry thus, considering rule 16(5) of the CCA Rules, petitioner's request was not accepted and I find no illegality in the said action. Petitioner asked disciplinary authority to supply copy of certain documents, which request was duly acceded to. Petitioner even prayed for time to submit certain documents and it was also granted. Petitioner, thereupon, submitted representation against the show cause notice. The disciplinary authority considered the matter in reference to the representation as well as the documents. Taking note of the material available on record, more specifically the mark sheet produced by the petitioner and letters received from the University of Rajasthan, the disciplinary authority did not find any reason to take a different view than taken by the enquiry officer. In the light of the aforesaid, I do not find any illegality in the action of the disciplinary authority. Petitioner was having right of nominating defence representative during the course of enquiry, which was duly provided to him. Subsequent to 9 the enquiry, there is no provision to have assistance of defence representative. In the light of the aforesaid, second argument, cannot be accepted. Next argument of the learned counsel for petitioner is that petitioner has wrongly been held guilty for commission of forgery though the mark sheet of Ist Year examination was not relevant to get employment. It is also stated that petitioner did not produce the mark sheet, rather, it was at the instance of the complainant. I have considered the aforesaid argument carefully after going through the record. Perusal of the record, more specifically the appeal preferred by the petitioner, does not show that petitioner ever took defence that the mark sheet of Ist Year was not produced by him. In the light of the aforesaid, petitioner cannot be now permitted to make out a new case. This is more so when he was having an opportunity to come forward with the aforesaid defence before the enquiry officer and, thereupon, before the disciplinary authority pursuant to the show cause notice and lastly while maintaining the appeal. 10 In the light of the aforesaid, petitioner cannot now take a new plea. This is more so when this court does not sit as a court of appeal for orders impugned herein. Petitioner was knowing it well that verification of the mark sheet produced by him is being sought from the University and the document was in his knowledge as it is even referred by the disciplinary authority. Thus, to say now that mark sheet of Ist Year examination was not submitted by the petitioner shows his conduct as he is trying to narrate incorrect facts even before the court. Aforesaid is coming out in view of the other averment that mark sheet of Ist Year was not relevant to seek appointment hence, respondents were not required to attach any significance to it. The aforesaid argument is in contradiction of the argument that petitioner did not produce the mark sheet in question. Perusal of the writ petition does not show a ground that mark sheet was not submitted by the petitioner, however, oral argument made by learned counsel has been dealt with. In absence of fact and ground in the writ petition, oral argument raised by learned counsel cannot be accepted. Now, come the last argument. It is true that while passing the order of dismissal, it was made subject to final outcome of the trial pending in the court but now the out come of the trial clearly shows that acquittal will not entitle the petitioner 11 for continuance in service. The disciplinary authority is given liberty to take into consideration that petitioner failed in the Ist Year examination. Looking to the order of the trial court, I am of the view that the order of dismissal made dependent on the outcome of the trial is not affected and, otherwise, I do not find any illegality in the order passed by the learned trial court because trial in the criminal case and enquiry by the department stand on different standards of proof. In the criminal case, offence is to be proved beyond doubt, whereas, in the departmental enquiry, charge can be held to be proved on preponderance of probabilities. The issue aforesaid has been clarified by the Hon'ble Apex Court time and again holding that pending trial, departmental enquiry need not be stayed and, further more, acquittal in the criminal case cannot result in recalling the order of dismissal or restraining the department to even initiate departmental enquiry after acquittal. The reference of judgment in the case of “NOIDA Entrepreneurs Association Versus NOIDA & ors, reported in (2007) 10 SCC 385 is relevant and paras 11,13, 14 and 16 are quoted hereunder for ready reference. “11.A bare perusal of the order which has been quoted in its totality goes to show that the same is not based on any rational foundation. The conceptual difference between a departmental enquiry and criminal proceedings has not been kept in view. Even orders passed by the executive have to be tested on the touchstone of 12 reasonableness. (See: Tata Cellular v. Union of India (1994(6) SCC 651), and Teri Oat Estates (P.) Ltd. v. U.T. Chandigarh and Ors. (2004 (2) SCC 130). conceptual difference between The departmental proceedings and criminal proceedings have been highlighted by this Court in several cases. Reference may be made to Kendriya Vidyalaya Sangathan and Others v. T. Srinivas (2004(7) SCC 442), Hindustan Petroleum Corporation Ltd. and Others v. Sarvesh Berry (2005 (10) SCC 471) and Uttaranchal Road Transport Corpn. v. Mansaram Nainwal (2006(6) SCC 366). “8. ....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 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 to proceed would be no bar 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 distinguished from mere private rights punishable under criminal law. When trial of public duty, 13 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 and circumstances. A three-judge Bench of this Court in Depot State Road Transport Manager, A.P. Corporation v. Mohd. Yousuf Miya and Ors. (1997 (2) SCC 699) analysed the legal position in great detail on the above lines.

13. There can be no straight jacket formula as to in which case the departmental proceedings are to be stayed. There may be cases where the trial of the case gets prolonged by the dilatory method adopted by delinquent official. He cannot be permitted to, on one hand, prolong criminal case and at the same time contend that the departmental proceedings should stayed on the ground that the criminal case is pending.

14. In Capt. M. Paul Anthony v. Bharat Gold Mines Ltd. 1999 (3) SCC 679), this Court indicated some of the fact situations which would govern the question whether departmental proceedings should be kept in 14 abeyance during pendency of a criminal case. In paragraph 22 conclusions which are deducible from various decisions were summarised. They are as follows: Departmental (i) proceedings and proceedings in a criminal case can proceed simultaneously as there is no bar in their being conducted simultaneously, though separately. (ii) If the departmental proceedings and the criminal case are based on identical and similar set of facts and the large in the criminal case against the delinquent employee is of a grave nature which involves complicated questions of law and fact, it would be desirable to stay the departmental proceedings conclusion of the criminal case. (iii) Whether the nature of a charge in a criminal case is grave and whether complicated questions of fact and law are involved in that case, will depend upon the nature of offence, the nature of the case launched against the employee on the basis of evidence and material collected against him during investigation or as reflected in the charge-sheet. (iv) The factors mentioned at (ii) and (iii) above cannot be considered in isolation to stay the departmental proceedings but due regard has to be given to the fact that the departmental proceedings cannot be unduly delayed. (v) If the criminal case does not proceed or its disposal is being unduly delayed, the departmental proceedings, even if they were stayed on account of the pendency of criminal case, can be resumed and proceeded with so as to conclude them at an early date, so that if the employee is found not guilty his honour may be vindicated and in case he is found guilty, the administration may get rid of him at the 15 earliest.

16. The standard of proof required in departmental proceedings is not the same as required to prove a criminal charge and even if there is an acquittal in the criminal proceedings the same does not bar departmental proceedings. That being so, the order of the State Government deciding the departmental proceedings is clearly untenable and is quashed. The departmental proceedings shall continue.” to continue Perusal of the quoted para makes it clear that department's action is not dependent on the outcome of the criminal case. Looking to the aforesaid, even last argument cannot be accepted and otherwise a challenge to the order passed by the court in criminal case cannot be made in a writ petition. I, otherwise, find that apart from production of forged mark sheet, petitioner absented from duties for a period of more than 2 years and 9 months before his arrest and no satisfactory explanation has been given by the petitioner for his absence other than stating that he was not allowed to join his duties. The aforesaid plea has been taken for the first time in the writ petition, otherwise, there is no material to show that petitioner ever represented to the respondents to allow him to work if he was not allowed to discharge his duties. 16 Looking to the aforesaid facts, absence for a period of more than 2 years and 9 months remained unexplained and this itself is sufficient to discharge him from service. In the light of the aforesaid discussion, no case is made out for calling any interference in the order of dismissal or order passed by the disciplinary authority so as the learned trial court, rather the order of the learned trial court cannot be challenged even for its modification to some extent of by maintaining a writ petition. In the result, writ petition so as the stay application are accordingly dismissed in limine (MN BHANDARI), J. bnsharma All corrections made in the judgment/ order have been incorporated in the judgment/ order being emailed. (BN Sharma) PS-cum-JW