IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 11.1.2007
CORAM:
THE HONOURABLE MR.JUSTICE F.M.IBRAHIM KALIFULLA
AND
THE HONOURABLE MR.JUSTICE S.K.KRISHNAN
W.P.No.19847 of 2001
and
W.M.P.No.29255 of 2001
1. Union of India rep. by
Postmaster-General,
Tamilnadu Circle,
Chennai-600 002.
2. Sr. Supdt. of RMS,
Railway Mail Service,
'T' Division, Tiruchy-620 001.
3. The Head Record Officer,
Railway Mail Service,
'T' Division,
Tiruchy-620 001. .. Petitioners
vs.
1. G.Sivaramakrishnan
2. The Registrar,
Central Administrative Tribunal,
Chennai - 600 104. .. Respondents
Writ Petition filed under Article 226 of the
Constitution of India, praying for issuance of a writ of
certiorari, calling for the records of the second
respondent, dated 27.4.2000 in O.A.No.554 of 1998 and quash
the order.
For petitioners : Mr.E.R.K.Moorrthy,
SCCG
For respondent-1 : Mr.L.Chandrakumar
ORDER
(The Order of the Court was made by F.M.Ibrahim Kalifulla,J.)
The Union of India represented by the Postmaster
General, Tamil Nadu Circle, Chennai-600 002, The Senior
Superintendent of Railway Mail Service, ‘T’ Division,
Tiruchy-620 001 and the Head Record Officer, Railway Mail
Service, ‘T’ Division, Tiruchy-620 001, are the petitioners.
2. The challenge in the Writ Petition is to the
order of the Central Administrative Tribunal, dated
27.4.2000 passed in O.A.No.554 of 1998, in and by which the
Tribunal, while setting aside the order of removal from
service in respect of the first respondent, dated 22.1.1997
as well as the rejection of his appeal petition, by order
dated 24.2.1998, directed the petitioners herein to restore
the first respondent herein to duty within one month from
the date of receipt of a copy of the order and also held
that the first respondent was not entitled for any monetary
benefits for the period from the date of removal till the
date of reinstatement.
3. The brief facts which led to the passing of the
above order of the Tribunal, can be stated as under:
The first respondent who joined as a Mail Mazdoor in
the Railway Mail Service in the year 1982, was posted as an
Extra-Departmental Mail Man. On 8.7.1994, when the first
respondent was on duty at 7.30 hours, affixing the date
stamp impressions on the advance work papers for 10.7.1994,
it was noticed by his higher authority, one
Thiru.S.Hirudayaraj, C.M.A. that the first respondent was in
an intoxicated mood. The said Hirudhayaraj was stated to
have advised the first respondent to report to the H.R.O. on
the next day by cancelling his duty. It is stated that after
some altercation, he left the scene and returned back at
22.30 hours in an intemperate mood and argued with some
vehemence with the C.M.A. on duty. At that point of time,
one Thiru.P.Muthukumar, the officiating I.R.M., who was
present at the scene, advised the first respondent to
contact the H.R.O. on the next day turning down his request.
In the course of the said altercation, the first respondent
was stated to have suddenly attacked the said I.R.M. with an
‘aruval’ at 22.45 hours, causing him bleeding and cut
injuries. When the first respondent was about to attack the
I.R.M. for the second time, Thiru.Hirudayaraj, C.M.A.
appeared to have prevented the first respondent and in that
process, the first respondent was stated to have caused
bleeding injuries on both his palms.
4. On the above stated incident, a criminal
complaint was stated to have been made, wherein the first
respondent was proceeded against in the Criminal Court for
the offences falling under Sections 332, 333 and 307 IPC. In
the Criminal Court, the first respondent was acquitted by
order dated 4.7.1996.
5. There were also departmental proceedings
initiated against the first respondent, in which
Thiru.P.Muthukumar, the officiating I.R.M. and
Thiru.Hirudayaraj, C.M.A. were examined as witnesses. The
first respondent fully participated in the enquiry and the
enquiry officer submitted his report, dated 10.7.1996,
holding that the charges levelled against the first
respondent were conclusively proved. Based on the findings
of the enquiry officer, by order dated 22.1.1997, the first
respondent was removed from service. The first respondent
preferred an appeal petition dated 8.4.1997, which was
subsequently dismissed by order dated 24.2.1998.
6. As against the above said orders dated 22.1.1997
and 24.2.1998, the first respondent preferred O.A.No.554 of
1998 and the Tribunal, by the impugned order, held that when
once the first respondent has been acquitted by the Criminal
Court on merits, the petitioners should not have proceeded
against and pass the order of removal from service. It was
on that basis, the Tribunal while setting aside orders
impugned before it, directed the petitioners herein to
restore the first respondent herein to duty and the Tribunal
however held that the first respondent was not entitled for
any monetary benefits for the period from the date of
removal till the date of reinstatement.
7. Assailing the order of the Tribunal,
Mr.E.R.K.Moorrthy, learned Standing Counsel for the Central
Government appearing for the petitioners, contended that
since the Supreme Court has taken a consistent view that
criminal proceedings and departmental action travel on two
different planes and the acquittal by the Criminal Court
need not always deter the department from proceeding against
the delinquent and pass appropriate order of punishment, the
Tribunal was not justified in interfering with the order of
removal passed against the first respondent, especially when
the charge against the first respondent was serious, in
that, he caused bleedings and cut injuries to his co-
employee. The learned Standing Counsel also relied upon the
decisions of the Supreme Court reported in 2006 (2) SCC 584
(South Bengal State Transport Corporation vs. Sapan Kumar
Mitra) and 2004 (6) SCC 482 (Allahabad District Cooperative
Bank Ltd., Allahabad vs. Vidhya Varidh Mishra) and a
decision of a Division Bench of this Court reported in 2005
(1) CTC 625 (The Management of Thiruvalluvar Transport
Corporation vs. S.Anthonysamy ) in support of his
submissions.
8. As against the above submissions,
Mr.L.Chandrakumar, learned counsel appearing for the first
respondent, by relying upon a decision of the Supreme Court
reported in 2006 (5) SCC 446 (G.M.Tank vs. State of
Gujarat), contended that when once an employee has been
honourably acquitted in a Criminal trial, the order of
removal from service cannot be sustained. The learned
counsel for the first respondent also contended that the
Tribunal, having only directed reinstatement without any
monetary benefits for the period of non-employment, the same
does not call for any interference.
9. Having heard the learned counsel for the
respective parties, we are of the view that in the light of
the consistent view of the Supreme Court on the question as
to the authority or power of the Department to proceed
against an employee in respect of a misconduct which was
based on the same set of facts with reference to which the
criminal proceedings were also initiated, which ultimately
ended in acquittal, the Department is entitled to make an
assessment of the evidence differently in the departmental
proceedings for the purpose of passing final order of
punishment, it will have to be held that the impugned order
of the Tribunal cannot be sustained.
10. On the above issue, we wish to be guided by a
recent decision of the Supreme Court reported in 2006 (2)
SCC 584 (supra) and in paragraphs 9 and 10 of the said
judgment, the Supreme Court has succinctly stated the legal
position as under:
“9. We have heard the learned
counsel for the parties and also
examined the relevant records of this
case. Although the Division Bench had
not categorically said that the
departmental proceeding could not be
continued and punishment could not be
imposed on the delinquent employee when
the criminal case ended in acquittal,
even then the learned counsel for the
respondents sought to argue this ground
before us. In our view, this ground is
no longer res integra. In Nelson Motis
v. Union of India (1992 (4) SCC 711 :
1993 SCC (L & S) 13 : 1993 (23) ATC 382)
a three-Judge Bench of this Court
observed at SCC p.714, para 5, as
follows:
“5. 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 proceeding were
not exactly the same which
were the subject-matter of the
criminal case.”
(emphasis supplied)
10. Similarly, in Senior Supdt.
of Post Offices v. A.Gopalan (1997
(11) SCC 239 : 1998 SCC (L & S) 124) the
view expressed in Nelson Motis v. Union
of India (1992 (4) SCC 711 : 1993 SCC (L
& S) 13 : 1993 (23) ATC 382) was fully
endorsed by this Court and similarly it
was held that the nature and scope of
proof in a criminal case is very
different from that of a departmental
disciplinary proceeding and the order of
acquittal in the former cannot conclude
the departmental proceedings. This Court
has further held that in a criminal case
charge has to be proved by proof beyond
reasonable doubt while in departmental
proceeding the standard of proof for
proving the charge is mere preponderance
of probabilities. Such being the
position of law now settled by various
decisions of this Court, two of which
have already been referred to earlier,
we need not deal in detail with the
question whether acquittal in a criminal
case will lead to holding that the
departmental proceedings should also be
discontinued. That being the position,
an order of removal from service
emanating from a departmental proceeding
can very well be passed even after
acquittal of the delinquent employee in
a criminal case. In any case, the
learned Single Judge as well as the
Division Bench did not base their
decisions relying on the proposition
that after acquittal in the criminal
case, departmental proceedings could not
be continued and the order of removal
could not be passed.”
11. In the earlier decision of the Supreme Court
reported in 2004 (6) SCC 482 (supra), the Supreme Court has
stated the above legal position in an emphatic manner in
paragraph 12, which is to the following effect:
“12. Mr.Rao submitted that the
respondent had been exonerated by the
criminal court. He submitted that the
termination was only on the basis of
his conviction. He submitted that as
his conviction is set aside, the courts
below were right in reinstating the
respondent. 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 concluded 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.”This decision of the Supreme Court has also been applied by
the First Bench of this Court in the decision reported in
2005 (1) CTC 625 (supra).
12. On a fair reading of the above referred to
decisions of the Supreme Court as well as the Division Bench
of this Court, the position is crystal clear that while in
the Criminal Court, the charge has to be proved by proof
beyond reasonable doubt, the same is not the case in the
Departmental proceedings, where the standard of proof for
proving the charge is mere preponderance of probabilities.
13. The Supreme Court having stated that the said
position of law is well settled by a catena of decisions of
the Supreme Court, as held in the decision reported in 2006
(2) SCC 584 (supra), it will be travesty of justice if in
respect of the case where the first respondent was stated to
have caused bleeding and cut injuries on his co-employee in
the course of his employment in the Railway Mail Service,
which conduct of the first respondent was duly explained by
the concerned person who suffered such bleeding injuries,
before the Departmental enquiry officer, it will be wholly
improper and inexpedient to ignore the said findings of the
enquiry officer and the ultimate order of removal from
service passed by the petitioners and direct reinstatement
by simply stating that the first respondent was acquitted by
the Criminal Court on the very same set of facts. Therefore,
being guided by the decisions of the Supreme Court, we are
unable to sustain the order of the Tribunal in directing
reinstatement of the first respondent.
14. As far as the other decision of the Supreme
Court reported in 2006 (5) SCC 446 (supra) is concerned, it
is true that the Supreme Court has held that if an employee
is honourably acquitted by the Criminal Court even during
the pendency of the proceedings challenging the dismissal,
the dismissal order cannot be sustained. But on a careful
consideration of this decision of the Supreme Court, we find
that the Supreme Court has made a thorough examination of
the pleadings, evidence and the charge involved in that case
and on a detailed reference to the evidence available on
record, the Supreme Court has found that the Criminal
Court’s conclusion was based on thorough examination of the
facts involved and in view of the said overwhelming evidence
that was placed before the Criminal Court with regard to the
offence charged under Section 5(1)(e) read with Section 5(2)
of the Prevention of Corruption Act, which was found to be
not proved, the Supreme Court took the view that in spite of
the acquittal which was out and out on merits, in the
absence of any evidence to prove the charge, the order of
dismissal from service cannot be sustained after acquittal.
We find no comparison of the facts involved therein to the
case on hand where the first respondent was charged with the
serious offence of misconduct of causing bleeding injuries
on a co-employee in the course of his employment with the
petitioners. Therefore, the said decision being clearly
distinguishable, cannot be applied to the facts of this
case.
15. Therefore, we find no scope to sustain the order
of the Tribunal impugned in this Writ Petition. The impugned
order of the Tribunal is set aside. The order of removal
from service, dated 22.1.1997 and the rejection order by the
appellate authority dated 24.2.1998, are restored. The Writ
Petition stands allowed. No costs. W.M.P. is closed.
cs
To
1. Union of India rep. by
Postmaster-General,
Tamilnadu Circle,
Chennai-600 002.2. Sr. Supdt. of RMS,
Railway Mail Service,
‘T’ Division, Tiruchy-620 001.3. The Head Record Officer,
Railway Mail Service,
‘T’ Division, Tiruchy-620 001.4. The Registrar,
Central Administrative Tribunal,
Chennai Bench-600 104.