C.W.P. NO. 16588 OF 2008 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
C.W.P. No. 16588 of 2008
DATE OF DECISION: September 23, 2008
Sunil Kumar Sharma
...Petitioner
Versus
The Oriental Insurance Company and others
...Respondents
CORAM: HON'BLE MR. JUSTICE M.M. KUMAR
HON'BLE MR. JUSTICE RAKESH KUMAR GARG
Present: Ms. Amandeep Kaur Dhiman, Advocate,
for the petitioner.
1. Whether Reporters of local papers may
be allowed to see the judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be
reported in the Digest?
M.M. KUMAR, J.
1. This petition filed under Article 226 of the Constitution
challenges orders dated 23.4.2008 and 25.9.2007 (P-1 and P-1/A)
passed by the Deputy General Manager-Appellate Authority
(respondent No. 3) and the Chief Regional Manager-punishing
authority respectively. The punishing authority has inflicted the
punishment of removal from service which was not to be a
disqualification for future employment, vide order dated 25.9.2007.
The order has been affirmed vide order dated 23.4.2008 passed by
the Appellate Authority while rejecting the appeal preferred by the
C.W.P. NO. 16588 OF 2008 -2-
petitioner.
2. Brief facts of the case are that criminal proceedings were
initiated against the petitioner after registration of case bearing R.C.
No. 19 of 18.6.2001, under Section 7, 13(1)(d) read with Section 13
(2) of the Prevention of Corruption Act, 1988 (for brevity, ‘the Act’), at
Police Station CBI, Chandigarh. The allegation against the petitioner
are that while posted as a Development Officer in Branch Office at
Nangal of the respondent Oriental Insurance Company, he
demanded Rs. 3,000/- as bribe for release of cheque of claim of
insurance of cow from the complainant Shri Kulbir Singh. On the
basis of the complaint made by Shri Kulbir Singh, the Vigilance
Bureau, Punjab laid a trap and the petitioner was caught red handed.
As a consequence, initially FIR No. 10, dated 19.2.2001, under
Section 7, 13(1)(d) read with Section 13(2) of the Act was registered
by the Vigilance Bureau, Punjab, which was later on converted into
R.C. No. 19 of 18.6.2001, when the Chief Director-cum-Additional
Director General of Police, Vigilance Bureau, Punjab, requested the
Superintendent of Police, CBI, Chandigarh, to take up the
investigation, vide his letter dated 21.5.2001 (P-3). It has come on
record that the FIR registered against the petitioner culminated in
filing of report under Section 173 Cr.P.C. (P-4). On the submission
of report requesting for closure of the case, the Special Judge, C.B.I.
declined the request and ordered further investigation. A copy of the
order dated 29.7.2003 has been placed on record as Annexure P-5.
Eventually the matter was adjourned sine die by the Special Judge,
C.B.I. on 19.3.2005. Again on 1.8.2007, an application by the C.B.I.
was filed and a request was made for closure of the case alongwith
C.W.P. NO. 16588 OF 2008 -3-
final report (P-17). The application was allowed by the Special Judge,
C.B.I. (P-18). A perusal of the order dated 29.7.2003 shows that on
account of contradictions in evidence the Special Judge, CBI had
ordered further probe and investigation. However, when the
application for closure of the case was made alongwith the final
report the same was accepted for the reason that sanction under
Section 19 of the Act was not accorded. The concluding paras of the
order reads thus:
” Section 19 of the Prevention of Corruption Act
provides that no Court shall take cognizance of an
offence punishable under Section 7,10,11,13 and 15
alleged to have been committed by a public servant,
except with the previous sanction of the Central Govt/
State Govt. competent authority as the case may be.
Whereas in the instant case, the competent authority is
stated to have declined to grant sanction for prosecution
of Sunil Kumar Sharma accused who was working as
development officer, Oriental Insurance Company,
Nanagal at the relevant time, as such coming within the
definition of a public servant. In the absence of the
sanction for prosecution being granted by the competent
authority, the cognizance of the offence against him
cannot be taken by this Court. As far as Ravi Dutt
accused is concerned, role assigned to him is that of
abatement, having received the tainted currency notes
from Sunil Kumar Sharma accused after he accepted the
same from the complainant as illegal gratification. Since
C.W.P. NO. 16588 OF 2008 -4-for want of giving previous sanction for prosecution, the
cognizance of offence against Sunil Kumar Sharma main
accused cannot be taken and therefore, it would be unjust
appropriate to make Ravi Dutt to face trial when it is not
so as regards the main accused.
In view of the detailed position explained above, the
request of the CBI for closure of the case is hereby
accepted. The remaining records be returned to the CBI
against a proper receipt. A copy of this order be supplied
to the CBI. The file be consigned to the record room.”
The afore-mentioned circumstances would show that
there was no trial before the Special Judge, C.B.I. and there could be
no question of recording any finding. The criminal case could not
proceed for want of sanction under Section 19 of the Act.
3. However, on account of registration of criminal case and
arrest of the petitioner for more than 48 hours, he was placed under
suspension by the Manager and Disciplinary Authority of the
respondent Corporation in exercise of the powers conferred by Rule
20(2) of the General Insurance (Conduct, Discipline and Appeal)
Rules, 1975 (for brevity, ‘the Rules’), vide order dated 23.2.2001 (P-
7). However, the suspension of the petitioner was revoked later on
vide order dated 18.2.2002 (P-9).
4. On 17.5.2002, major penalty proceedings were initiated
against the petitioner and a charge sheet was served upon him under
Rule 25 of the Rules (P-8). After holding regular departmental
proceedings against the petitioner, the Enquiry Officer submitted his
report dated 3.5.2007 wherein he was found guilty of the charges
C.W.P. NO. 16588 OF 2008 -5-
levelled against him. On 8.5.2007, the petitioner submitted his
representation against the findings recorded in the enquiry report
raising the issues that the original listed documents were not
produced during enquiry proceedings; defence documents were not
shown to him; he was not allowed to appear as his defence witness
during enquiry proceedings; and that the FIR lodged against him by
the CBI was dropped on the basis of an application filed by the CBI in
the Court. The Appointing-cum-Disciplinary Authority while
disagreeing with the defence taken by the petitioner passed the
impugned order dated 25.9.2007 punishing the petitioner and
inflicting upon him the punishment of removal from service, which
was not to be considered as disqualification for future employment
(P-1/A).
5. Feeling aggrieved, the petitioner preferred an appeal
under Rule 31 of the Rules on 22.10.2007 (P-16), which has been
rejected by the Appellate Authority vide order dated 23.4.2008 (P-1).
6. The principal ground urged by the learned counsel for the
petitioner is that once the investigating agency-CBI has itself failed to
substantiate the offence against the petitioner and has filed closure
report, which has been duly accepted by the learned Special Judge,
CBI, vide order dated 1.8.2007 (P-18) then charges could not be
gone into in a departmental enquiry. She has further argued that the
departmental proceedings against the petitioner should have been
dropped once the criminal case against him stands closed by the
Court because no charge has been proved.
7. Having heard learned counsel at a considerable length
and perusing the paper book with her able assistance we find that
C.W.P. NO. 16588 OF 2008 -6-
there is no merit in the instant petition and the same deserves to be
dismissed. The law on the subject as to whether acquittal in criminal
trial would result into automatic exoneration in departmental
proceedings stand crystallised. It has been repeatedly held that
there is no such rule of law because both the proceedings proceed
on different considerations. The principal distinctions are that the
standard of proof in criminal trial is markedly different than the one
required in disciplinary proceedings. Secondly, the object of criminal
trial is to segregate the accused from rest of the society so as to
reform him by divesting him of his criminality. It is the State function
to subject an accused to criminal trial and for that reason an
employer cannot be subjected to any adverse consequences. In that
regard reliance may be placed on a catena of judgments, namely,
Mithilesh Singh v. Union of India, (2003) 3 SCC 309; B.C.
Chaturvedi v. Union of India, (1995) 6 SCC 749; Om Kumar v.
Union of India, (2001) 2 SCC 386; Ajit Kumar Jog v. Indian Oil
Corporation, (2005) 7 SCC 764; Chairman-cum-M.D., T.N.C.S.
Corporation Ltd. v. K. Meerabai, (2006) 2 SCC 255;
Commissioner of Police, New Delhi v. Narender Singh, (2006) 4
SCC 265; Govind Das v. State of Bihar, (1997) 11 SCC 361; and
Union of India v. Bihari Lal Sidhana, (1997 (4) SCC 385.
8. In the present case there was no acquittal on recorded
finding by the criminal court that the petitioner did not indulge in
criminal act of illegal gratification punishable under the Act. The
C.B.I. was not able to persuade the department concerned for
according sanction under Section 19 of the Act to prosecute the
C.W.P. NO. 16588 OF 2008 -7-
petitioner. Once there is no trial and finding in favour of the petitioner
it cannot be concluded that the petitioner has been subjected to
disciplinary proceedings for the same set of allegations for which he
has already undergone trial before the criminal Court. Therefore the
principle of law that if the evidence, witnesses and documents
alongwith charges are the same then no departmental proceedings
could be held would not at the first place apply to the facts of the
present case. Even otherwise there is no rule of law that in every
case where the charges, witnesses and evidence in criminal case are
the same than the departmental proceedings could not be initiated.
9. The judgment of Hon’ble the Supreme Court in the case
of G.M. Tank v. State of Gujarat, AIR 2006 SC 2129, on which
reliance has been placed by learned counsel for the petitioner, would
not come to the rescue of the petitioner. In the present case, it is
conceded position that no trial has actually taken place against the
petitioner as no charges have been framed against him, whereas in
the departmental proceedings after following detailed procedure he
has been found guilty of the charges levelled against him. The
respondents issued him charge sheet under Rule 25 of the Rules.
He has been found guilty by the Enquiry Officer. After furnishing him
enquiry report and opportunity of personal hearing the punishing
authority has inflicted the punishment of removal from service which
was not to be considered as disqualification for future employment.
The principle of law laid down in the cited case that the findings to
the contrary recorded in the departmental proceedings than the one
recorded in the Criminal Trial can be quashed, cannot be extended to
the facts of the present case as the punishment cannot be
C.W.P. NO. 16588 OF 2008 -8-
considered to be shockingly disproportionate to the misconduct
committed by the petitioner. There is, thus, no merit in the instant
petition.
10. No other argument has been addressed nor any violation
of rules /regulations has been pointed out for warranting admission of
the petition. The writ petition is wholly mis-conceived.
11. In view of above, the writ petition fails and the same is
dismissed.
(M.M. KUMAR)
JUDGE
(RAKESH KUMAR GARG)
September 23, 2008 JUDGE
Pkapoor/okg