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1. Union of India & Ors. Vs. Kali Ram & Anr.
(D.B CIVIL WRIT PETITION NO.1302/2000)
2. Union of India & Ors. Vs. Satveer Singh & Anr.
(D.B CIVIL WRIT PETITION NO.1303/2000)
3. Union of India & Ors. Vs. LRs of Kartar Singh & Anr.
(D.B CIVIL WRIT PETITION NO.1304/2000)
Date of Order :: 12.02.2009
HON'BLE MR. JUSTICE A.M. KAPADIA
HON'BLE MR. JUSTICE SANGEET LODHA
Mr. Vinit Kumar Mathur, for the petitioners.
Mr. V.K. Agarwal, for the respondent No.1.
BY THE COURT : (PER HON'BLE MR. SANGEET LODHA, J.)
Reportable
1. These writ petitions are directed against order dated 20.1.2000
passed by the Central Administrative Tribunal (in short ‘the CAT’
hereinafter), Jodhpur Bench, Jodhpur, whereby the original applications
preferred by the original applicants (the respondent no.1 herein in all
the three petitions), assailing the validity of the orders passed by the
Disciplinary Authority dated 3.4.89, dismissing them from service have
been partly allowed and accordingly, the petitioners have been directed
to reinstate them in service on the same post from which they were
dismissed with 50% back wages. The period of dismissal has been
directed to be counted for the purposes of calculation of pension but
not for any kind of leave and increments in the regular pay scale. That
apart, while observing that for the alleged misconduct the minor
penalty like stoppage of grade increment or such similar punishment
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could be awarded to meet the ends of justice, the petitioners have been
further directed to reconsider the matter for imposition of the penalty
upon the respondents.
2. The relevant facts in nutshell are that the respondents were
employed with the petitioners as Conservancy Safaiwala. On 26.8.87,
one Shri Phoola Ram got seriously injured in an accident with a Military
truck and later on died. The respondents along with other staff members
assemble at the accident site and did not allow the authorities to take
the injured immediately to the hospital. Consequently, he succumbed to
the injuries after a few hours.
3. The respondents were served with a memorandum dated 16.3.88
with a charge sheet and statement of allegations proposing an inquiry
under Rule 14 of the Central Civil Services (Classification, Control &
Appeal) Rules, 1965. All the respondents were charge sheeted for the
following acts of misconduct :
“That, the said Shri……………… while functioning as
Safaiwala with Station Headquarters, Sri Ganganagar
during the period from Aug 87 to Oct 87, on 26 Aug 87
between 0830 hours and 1000 hours caused to delay the
evacuation of injured Shri Phoola Ram S/o Shri Hari Ram
to 176 Military Hospital by NTS-17438Y Lt TD Bhatt. This
has been established by a staff court of inquiry held vide
Headquarters 15 Infantry Brigade convening order
No.4813/PR/A dated 26 Aug 87.”
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4. The charge levelled against the respondents was found duly
proved, therefore, vide order dated 10.4.89 passed by the Disciplinary
Authority, the respondents were dismissed from service with immediate
effect. The validity of dismissal orders was assailed by all the three
respondents by way of separate original applications before the CAT,
Chandigarh Bench, Chandigarh. After due consideration, the original
applications preferred by the respondents were dismissed by the CAT,
Chandigarh Bench vide a common order dated 22.2.90. Thus, the order
passed by the Disciplinary Authority attained finality.
5. Simultaneously, an FIR was also lodged by Major Shri P.K. Bali
with the Superintendent of Police against Shri Kali Ram (respondent
no.1 in writ petition no.1302/2000), Shri Kartar Singh (since deceased
respondent no.1 in writ petition no.1304/2000) and one Shri Darmveer
Singh. After investigation, the Investigating Officer filed charge sheet
against the above named officials under Section 441 & 323 IPC in the
Court of Additional Chief Judicial Magistrate (in short ‘ACJM’
hereinafter), Sri Ganganagar. The learned ACJM, Sri Ganganagar
acquitted all of them vide his order dated 22.4.95, by giving them
benefit of doubt.
6. On acquittal by the court of ACJM, the respondents through a
notice of demand of justice served on the petitioners, claimed
reinstatement in service. The petitioners vide letter dated 20.7.95
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informed the counsel for the respondents that since the respondents
have been dismissed from service as a result of disciplinary action,
therefore, they are not entitled for reinstatement on acquittal in
criminal case. In these circumstances, the respondents preferred
original applications as aforesaid before the CAT, Jodhpur Bench,
Jodhpur, which have been allowed as aforesaid vide order dated
20.1.2000 impugned in these writ petitions.
7. A perusal of the order impugned goes to show that relying upon
the findings of the learned ACJM, the learned CAT, Jodhpur Bench has
observed that the penalty imposed upon the respondents is not
commensurate with their alleged misconduct. It is further observed that
the misconduct of the respondents can at the best be considered as
obstruction in discharge of the duties of the concerned officers,
therefore, for such an alleged misconduct the penalty of dismissal is
highly shocking, perverse and vindictive. Accordingly, the CAT, Jodhpur
Bench has allowed the original applications preferred by the
respondents in the terms referred supra.
8. It is pertinent to note that while seeking direction for
reinstatement in service by way of fresh original applications before the
Jodhpur Bench of the CAT, the factum of dismissal of earlier original
applications preferred by the respondents assailing the validity of their
dismissal from service by the Chandigarh Bench of the CAT was not
disclosed in the fresh original applications filed. It is also relevant to
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mention here that specific objection was taken by the petitioners by
way of replies to the original applications regarding concealment of the
facts. That apart, an objection was also taken by the petitioners that in
view of dismissal of the original applications assailing validity of order of
dismissal from service by the Chandigarh Bench of the CAT, the
subsequent original application preferred as aforesaid by the
respondents are barred by principle of res judicata. However, a perusal
of the order impugned goes to show that these aspects of the matter
have simply not been taken note of by the CAT, Jodhpur Bench while
allowing the original applications partly vide order impugned in these
writ petitions.
9. It is contended by the learned counsel for the petitioners that the
order impugned passed by the CAT, Jodhpur Bench is ex facie contrary
to the settled principles of law. The learned counsel submitted that the
respondents having been dismissed from service as a result of
disciplinary proceedings, the CAT could not have interfere with the
order of punishment on the basis of findings arrived at by the ACJM on
the basis of the evidence led before him in a criminal case. The learned
counsel submitted that the original applications preferred by the
respondents having been dismissed by the Chandigarh Bench of CAT vide
order dated 22.2.90, the fresh original applications preferred assailing
the validity of findings recorded by the Disciplinary Authority and the
consequential orders passed, relying upon the findings of the criminal
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court were ex facie barred by principle of res judicata. That apart, it is
submitted by the learned counsel that in view of suppression of the
material facts by the respondents i.e. the facts with regard to the
dismissal of original applications by the Chandigarh Bench of the CAT,
the original applications preferred by the respondents before the
Jodhpur Bench of the CAT for relief of reinstatement in service were
liable to be dismissed on this count alone.
10. Per contra, the learned counsel appearing on behalf of the
respondents submitted that the respondents are barely literate and do
not understand niceties of law, therefore, under the legal advise
tendered by the counsel, the factum of filing of the original applications
earlier was not disclosed in the fresh original applications filed before
the Jodhpur Bench of the CAT. The learned counsel submitted that the
respondents having been acquitted by the court of competent
jurisdiction in the criminal case lodged against them, they were well
within their right to claim reinstatement in service and it was fresh
cause of action, therefore, the principle of res judicata is not attracted
in the matter. The learned counsel submitted that in view of the
categorical findings recorded by the criminal court, the CAT has
committed no error in interfering with the order of punishment. The
learned counsel submitted that if the CAT has found the punishment
imposed upon the respondents to be shockingly disproportionate to the
gravity of misconduct proved, then, there is no reason why this Court
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should interfere with the order in exercise of its extra ordinary
jurisdiction under Article 226 of the Constitution of India.
11. We have considered the rival submissions and perused the record.
12. It is settled law that acquittal in the criminal case cannot be
made basis for setting aside the order passed in disciplinary proceedings
on the basis of evidence adduced in the departmental inquiry conducted
into the charges of misconduct levelled against a delinquent employee.
Admittedly, in the criminal case, the respondents have been acquitted
by the learned ACJM giving them benefit of doubt. Indisputably, the
standard of proof in the departmental proceedings is not same as that
required to prove a criminal charge. In the departmental proceedings
the finding of guilt can even be based on preponderance of probabilities
and the rule of strict proof does not apply to such proceedings. In this
view of the matter, in our considered opinion, the CAT, Jodhpur Bench
has seriously erred in interfering with the orders passed by the
Disciplinary Authority dismissing the respondents from service on the
charge of misconduct being proved against them, solely relying upon the
alleged findings recorded by the learned ACJM, while acquitting the
respondents from the criminal charge.
13. Admittedly, the original applications preferred by the
respondents assailing the validity of dismissal orders, were dismissed by
the CAT, Chandigarh Bench after due consideration on merits. In this
view of the matter, it was not open for the respondents to assail the
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validity of the dismissal orders all over again on the basis of the alleged
findings recorded by the court of ACJM, acquitting them from the
criminal charge giving benefit of doubt. In our opinion, the dispute
raised by the respondents by way of fresh original applications before
CAT, Jodhpur Bench was ex facie barred by principle of res judicata and
the same were liable to be dismissed on this count alone.
14. That apart, a perusal of the original applications preferred by the
respondents reveals that in the column no.7 thereof the respondents
have made a specific declaration that they have not preferred any
application, writ petition, suit regarding the matter in respect of which
the original applications have been made before any court or any other
authority or any bench of the Tribunal and nor such application, writ
petition or suit is pending before any of them. Thus, it appears that the
factum of dismissal of the original applications assailing the order of
dismissal from service was deliberately concealed by the respondents
before the CAT, Jodhpur Bench. Therefore, as a matter of fact, the
original applications preferred by the respondents were liable to be
dismissed on account of their unbecoming conduct.
15. For the aforementioned reasons, in our considered opinion, the
order impugned passed by the CAT, Jodhpur Bench, Jodhpur is not
sustainable in eye of law.
16. In the result, the writ petitions succeed, the same are hereby
allowed. The order impugned dated 20.1.2000 passed by the Central
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Administrative Tribunal, Jodhpur Bench, Jodhpur is hereby quashed and
set aside and the orders passed by the Disciplinary Authority dismissing
the respondents from service are restored. No order as to costs.
[SANGEET LODHA],J. [A.M. KAPADIA],J. vijayant