The High Court · 2011

I have considered submissions of learned counsel and perused the material on record besides going through the judgments cited at the Bar. The issue as to whether acquittal in the criminal case should result in quashing of the order of dismissal in the 3 departmental enquiry has now been settled by the Hon'ble Apex Court. In the case of “Suresh Pathrella Versus Oriental Bank of Commerce” reported in (2006) 10 SCC 572, Hon'ble Apex Court held that acquittal in the criminal case cannot be taken as a bar for initiation of disciplinary proceedings against the delinquent employee. It is after considering that standard of proof required in criminal trial and departmental enquiry is quite different. Relevant para 11 and 12 of the aforesaid judgment are quoted for ready reference thus - “11.In our view, the findings recorded by the learned Single Judge are fallacious. This Court has taken the view consistently that acquittal in a criminal case would be no bar for drawing up a disciplinary proceeding against the delinquent officer. It is well settled principle of law that the yardstick and standard of proof in a criminal case is different from the disciplinary proceeding. While the standard of proof in a criminal case is a proof beyond all reasonable doubt, the proof in a departmental proceeding is preponderance of probabilities.

12.It is not the case of the appellant that the enquiry has been conducted without affording an opportunity to the appellant or behind the back of the appellant and thereby violated the principle of natural justice. It is, however, contended by the counsel for the appellant that the opinion of hand writing expert in respect of the complainant-GC Luthra said to have been procured by the Enquiry Officer 4 after the enquiry was closed had not been furnished to the appellant, despite request and, therefore, a reasonable opportunity has been denied to him.” Same view was taken by the Hon'ble Apex Court in the case of “Punjab Water Supply Sewerage Board & anr Vs Ram Sajivan & anr” reported in (2007) 9 SCC 86. In the aforesaid case, the delinquent was given benefit of probation in the criminal case. Considering the aforesaid, it was held that initiation of disciplinary proceedings is not a bar more so when it was initiated on the ground that delinquent's conduct led to conviction. On the facts, aforesaid case is little different but if the ratio is applied, it comes out that criminal case does not oust the departmental enquiry. Hon'ble Apex Court taken the same view in the case of “Krishnakali Tea Estate Versus Akhil Bharatiya Chah Mazdoor Sangh & anr” reported in (2004) 8 SCC 200. Therein, it was held that approach and the objectives of criminal proceedings and disciplinary proceedings are altogether distinct and different thus Labour Court was not bound by the findings of the criminal court. In the aforesaid case, evidence led before the two courts was in different shape. The ratio accordingly applies that merely a judgment in the criminal case ipso facto cannot be applied as finding of the departmental enquiry also. 5 In the case of Uttaranchal Road Transport Corporation & ors versus Mansaram Nainwal” reported in (2006) 6 SCC 366, the Hon'ble Apex Court held that acquittal in the criminal case cannot automatically affect the departmental enquiry. Therein, applying the judgment in the case of Captain M Paul Anthony, the order of termination was set aside. It was without discussing as to how the judgment in the case of Captain M Paul Anthony applies. Accordingly matter was remitted back to the High Court for afresh decision. In a recent judgment in the case of “West Bokaro Colliery (TISCO Ltd.) Versus Ram Pravesh Singh” reported in (2008) 3 SCC 729, it has been held that acquittal in a criminal case cannot be taken as a bar for departmental enquiry. Para 20 of the aforesaid judgment is quoted hereunder for ready reference thus - “20. Tribunal has set aside the report of the Enquiry Officer and the order of dismissal passed by the Punishing Authority by observing that the charges against the respondent were not proved beyond reasonable doubt. It has repeatedly been held by this Court that the acquittal in a criminal case would not operate as a bar a disciplinary for drawing up of proceeding against a delinquent. It is well settled principle of law that yardstick and standard of proof in a criminal case is different from the one in disciplinary proceedings. While the standard of proof in 6 a criminal case is proof beyond all reasonable doubt, the standard of proof in a preponderance of probabilities.” departmental proceeding Same view has been taken by the Hon'ble Apex Court in the case of “Union of India & ors Vs Naman Singh Shekhawat” reported in (2008) 4 SCC 1, wherein, it has been held that after acquittal, initiation of departmental enquiry is permissible but this exercise should be bona fide. Looking to the series of cases referred to above, it comes out that on acquittal in criminal case, departmental enquiry is not a bar. Herein, petitioner was dismissed from service in the year 2001, that too, after holding departmental enquiry. The order of dismissal was challenged by maintaining an appeal and, thereafter, review which was finally decided in the year 2008. In the meanwhile, petitioner was acquitted in the criminal case. This is only on appeal that order of acquittal was passed some time in the year 2010. Thus, herein, the departmental enquiry was not initiated after acquittal but it was completed in the year 2001 itself. The order of acquittal has now come in the year 2010. Thus, initiation of departmental enquiry was bona fide and looking to the delinquency of the petitioner he has been punished by the punishment of dismissal. 7 In the case of “NOIDA Entrepreneurs Association Versus NOIDA & ors”, reported in (2007) 10 SCC 385, it has been held that standard proof of enquiry is not the same as required in a criminal case. Even an acquittal in the criminal proceeding does not bar departmental enquiry thus a decision to drop the enquiry was held to be improper. Paras 11, 13, 14, 16 of the said judgment are quoted thus - “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 departmental enquiry and between a criminal proceedings has not been kept in view. Even orders passed by the executive have to be tested on the touchstone of reasonableness. (See: Tata Cellular v. Union of India (1994(6) SCC 651), and Ltd. v. U.T. Teri Oat Estates (P.) Chandigarh and Ors. (2004 (2) SCC 130). The conceptual difference between 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 8 of public duty, 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 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 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 and circumstances. A three-judge Bench of this Court in Depot State Road Transport Manager, A.P. 9 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 abeyance during pendency of a criminal case. In paragraph 22 conclusions which are deducible from various decisions were summarised. They are as follows: Departmental proceedings and (i) 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 proceedings departmental 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 10 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 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 In fact, standard of proof in criminal case is quite different than in the departmental enquiry. In a criminal case, offence has to be proved beyond doubt, whereas, same is not the position in departmental enquiry. Looking to the aforesaid, any decision in the criminal case cannot be taken as a yardstick to nullify departmental enquiry already initiated and concluded prior 11 to it. Looking to all these circumstances, I am not inclined to accept this writ petition. Accordingly, same is dismissed in limine. bnsharma (MN BHANDARI), J. All corrections made in the judgment/ order have been incorporated in the judgment/ order being emailed. (BN Sharma) PS-cum-JW