IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(S ) No. 2108 of 2004
Jagdish Singh ........................................Petitioner
Versus
M/s Bharat Coking Coal Ltd. & Others ......................Respondents.
CORAM : HON'BLE MR.JUSTICE AJIT KUMAR SINHA
For the Petitioner : M/s Ajit Kumar & Rahul Kumar, Advocates
For the Respondents : M/s Anoop Kumar Mehta &
Amit Kumar Sinha, Advocates.
-------------------
C.A.V. on : 26.05.2009 Pronounced on : 26.06.2009
ORDER
05/ 26.06.2009
In the instant writ petition the petitioner prays for issuance of an appropriate
writ, order or direction or a writ in the nature of certiorari for quashing the
impugned order dated 30.01.2003 by which the petitioner has been again dismissed
from service, after the orders passed in C.W.J.C. No.943/2000 (R) vide order dated
26.8.2002 and L.P.A. No.555/2002 disposed of on 3.12.2002 in which the
management has lost the case. The petitioner further prays for quashing the
impugned order dated 18/20.2.2004 passed in memo of appeal by the Appellate
Authority. The petitioner further prays for a writ in the nature of mandamus
commanding upon the respondents not to give effect of the said impugned order
and to pay the consequential benefits and re-instate with full back wages to the
petitioner.
2. The facts, in brief, are stated as under:-
A departmental charge sheet was issued against the petitioner and he was
directed to give his written explanation within seven days and he filed a detail show
cause on 13.3.1995 and denied the charges levelled against him. Personal Manager
Sri R.D. Singh was appointed as Enquiry Officer and Sri A.K. Jha, Inspector, C.B.I.
represented as a Presenting Officer and vide order dated 29.10.1999 the petitioner
was dismissed from service of respondent No.4. The petitioner being constrained
filed a writ petition C.W.J.C. No.943 of 2000 (R) against the dismissal order and the
learned Single Judge vide its order dated 26.8.2002 set aside the order of dismissal
dated 29.10.1999 against which L.P.A. No.555/2002 was preferred by the
respondents and vide order dated 3.12.2002 the learned Division Bench refused to
interfere in the matter and reiterated the order passed by the learned Single Judge
vide which the matter was remanded to the respondents herein for re-consideration
on the basis of the observation made in the order. The petitioner by virtue of order
submitted his joining report on 14.12.2002 however he was not allowed to join and
vide order dated 30.1.2003 he was again dismissed from service. The petitioner
filed a detail memo of appeal against the order passed on 30.1.2003 to the
2
Departmental Appellate Authority as per the liberty granted by the High Court in the
second writ petition preferred and the appellate authority vide its impugned order
dated 20.2.2004 confirmed the order of dismissal dated 30.1.2003 which is the
subject matter of this writ petition.
3. The main contention raised by the learned counsel for the petitioner is that
an F.I.R. was lodged for misappropriating a sum of Rs.94,000/- causing wrongful
loss to B.C.C.L. However only six persons were charge-sheeted and sent up for trial
whereas two persons not sent up for trial and discharged by the Court of S.D.J.M.
(C.B.I.), Dhanbad which included the petitioner and one Suresh Kumar Chand. The
learned counsel for the petitioner further submits that it is a case of gross
discrimination and double standard adopted by the respondent Management in view
of the fact that those who were exonerated were proceeded departmentally and
disciplinary proceedings were initiated against them whereas those who were charge
sheeted and sent up for trial by the C.B.I. no disciplinary proceeding have been
initiated. In this regard he also referred to a report of two members Vigilance
Committee which was constituted by none other than the Management itself and
they also vide their report dated 21.7.1990 exonerated the petitioner. It is also the
case of the petitioner that even the second person who was not sent up for trial or
charge sheeted continues in the job and was promoted. The learned counsel for the
petitioner further submits that in the instant case the enquiry report was sent to the
Project Officer and the G.M. and the G.M. himself approved the Enquiry Report and
has also recommended dismissal from service and he being the appellate authority
cannot be a judge on his own cause and thus the entire proceeding was vitiated. It
is further contended that the appellate order has not even chosen to deal with any
of the grounds raised in the memo of appeal. It has further been contended that in
any event the issue with regard to ex-parte enquiry report was held to be not proper
by the learned Single Judge in the initial round and the direction issued clearly
indicated that the petitioner should be given opportunity and the matter was to be
considered afresh, meaning thereby all the points raised in the show cause as well
as in the memo of appeal were to be dealt with and answered. To support his
contention he refers to and relies upon (2008) 4 SCC page 1 para 35 in particular
to suggest that in any event if the facts of the case, charges and the evidences are
same then exoneration in a criminal proceeding will certainly have a bearing as to
whether the disciplinary proceeding could be initiated or not.
4. Per contra, the learned counsel for the Management has submitted that the
petitioner was given full opportunity and the principle of natural justice was
complied with and he has chosen not to appear in the initial round and thus the ex-
parte enquiry report was passed and he even wrote a letter dated 15.09.1997
suggesting that he cannot appear on the ground that certain documents were not
given. He has further contended that a disciplinary proceeding can certainly continue
3
even after acquittal in a criminal proceeding and to support his contention he has
referred to and relied upon (1997) 4 SCC 385, (2005) 7 SCC 338, (2006) 2
SCC 584, (2007) 9 SCC 755 and (2007) 10 SCC 385. He further submits that
even the other co-accused who was exonerated and not sent up for trial, i.e. Satya
Prakash Chand was also issued charge memo, however, he has no knowledge about
the outcome. However, the learned counsel for the petitioner submits that except
him all the other co-accused in the criminal case who were actually charge sheeted
and sent up for trial are continuing in service and have been promoted also which is
clearly discriminatory and amounts to adopting double standard as contended by the
learned counsel for the petitioner.
The other contention raised by the learned counsel for the respondents is
that judicial review under Article 226 of the Constitution of India arising out of
disciplinary proceedings confirmed by appellate authority as a whole is limited and
the same can only be on the ground of violation of settled law or the provisions of
the Constitution and or in case of disproportionate punishment.
5. I have considered the rival submissions and the pleadings and the case laws
on the subject. In the instant case exoneration is by way of discharge and the
petitioner was not even charge sheeted nor sent up for trial and thus it will be
deemed that the accused is acquitted honourably and exonerated of the charges
and it will not be proper to initiate a departmental enquiry. This issue was
specifically considered in 1981 (2) SCC 714 in Corpn. of the City of Nagpur v.
Ramchandra and at paragraph 6 it was held as under:-
“6.The other question that remains is if the respondents
are acquitted in the criminal case whether or not the
departmental inquiry pending against the respondents would
have to continue. This is a matter which is to be decided by the
department after considering the nature of the findings given by
the criminal court. Normally where the accused is acquitted
honourably and completely exonerated of the charges it would
not be expedient to continue a departmental inquiry on the very
same charges or grounds or evidence, but the fact remains,
however, that merely because the accused is acquitted, the
power of the authority concerned to continue the departmental
inquiry is not taken away nor is its direction (discretion) in any
way fettered.”
6. The view taken in Capt. M.Paul Anthony in (1993) 3 SCC page 679 by
the Hon’ble Supreme Court has also to be considered and the case of such nature
has to be decided on the facts and the evidence in both the criminal as well as the
4
departmental proceeding. The Hon’ble Supreme Court at paragraphs-34 & 35 held
as under:
“34. There is yet another reason for discarding the whole of the case of the
respondents. As pointed out earlier, the criminal case as also the
departmental proceedings were based on identical set of facts, namely, “the
raid conducted at the appellant’s residence and recovery of incriminating
articles thereform”. The findings recorded by the enquiry officer, a copy of
which has been placed before us, indicate that the charges framed against
the appellant were sought to be proved by police officers and panch
witnesses, who had raided the house of the appellant and had effected
recovery. They were the only witnesses examined by the enquiry officer and
the enquiry officer, relying upon their statements, came to the conclusion
that the charges were established against the appellant. The same witnesses
were examined in the criminal case but the Court, on a consideration of the
entire evidence, came to the conclusion that no search was conducted nor
was any recovery made from the residence of the appellant. The whole case
of the prosecution was thrown out and the appellant was acquitted. In this
situation, therefore, where the appellant is acquitted by a judicial
pronouncement with the finding that the “raid and recovery” at the residence
of the appellant were not proved, it would be unjust, unfair and rather
oppressive to allow the findings recorded at the ex parte departmental
proceedings to stand.”
“35. Since the facts and the evidence in both the proceedings, namely, the
departmental proceedings and the criminal case were the same without there
being any iota of difference, the distinction, which is usually drawn as
between the departmental proceedings and the criminal case on the basis of
approach and burden of proof, would not be applicable to the instant case.”
7. On considering all the aforesaid issued the Hon’ble Supreme Court in (2006)
5 SCC 446 (G.M. Tank Vrs. State of Gujarat and Others) the Hon’ble Supreme
Court while reiterating the view in Capt. M. Paul Anthony (Supra) at paragraph 31
held as under:-
“31. In our opinion, such facts and evidence in the
departmental as well as criminal proceedings were the same
without there being any iota of difference, the appellant should
succeed. The distinction which is usually proved between the
departmental and criminal proceedings on the basis of the
approach and burden of proof would not be applicable in the
instant case. Though the finding recorded in the domestic enquiry
was found to be valid by the courts below, when there was an
5honourable acquittal of the employee during the pendency of the
proceedings challenging the dismissal, the same requires to be
taken note of and the decision in Paul Anthony case will apply.
We, therefore, hold that the appeal filed by the appellant
deserves to be allowed.”
8. However, in a recent judgment, rendered in the case of NOIDA
Entrepreneurs Association V. NOIDA & Ors., as reported in (2007) 10 SCC
385, the Hon’ble Supreme Court no doubt held at paragraph Nos.15 and 16 as
under:-
“15. The position in law relating to acquittal in a criminal case, its effect
on departmental proceedings and reinstatement in service has been
dealt with by this Court in Union of India v. Bihari Lal Sidhana. It
was held in para 5 as follows: (SCC pp. 387-88)“5. It is true that the respondent was acquitted by the criminal
court but acquittal does not automatically give him the right to be
reinstated into the service. It would still be open to the competent
authority to take decision whether the delinquent government
servant can be taken into service or disciplinary action should be
taken under the Central Civil Services (Classification, Control and
Appeal) Rules or under the Temporary Service Rules. Admittedly,
the respondent had been working as a temporary government
servant before he was kept under suspension. The termination
order indicated the factum that he, by then, was under
suspension. It is only a way of describing him as being under
suspension when the order came to be passed but that does not
constitute any stigma. Mere acquittal of government employee
does not automatically entitle the government servant to
reinstatement. As stated earlier, it would be open to the
appropriate competent authority to take a decision whether the
enquiry into the conduct is required to be done before directing
reinstatement or appropriate action should be taken as per law, if
otherwise, available. Since the respondent is only a temporary
government servant, the power being available under Rule 5(1) of
the Rules, it is always open to the competent authority to invoke
the said power and terminate the services of the employee
instead of conducting the enquiry or to continue in service a
government servant accused of defalcation of public money.
Reinstatement would be a charter for him to indulge with
impunity in misappropriation of public money.”
6
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 not to
continue the departmental proceedings is clearly untenable and
is quashed. The departmental proceedings shall continue.”
9. In (2007) 9 SCC 755 (Pandiyan Roadways Corpn. Ltd. Vrs. N.
Balakrishnan) the Hon’ble Supreme Court while analyzing the two lines of
decision at paragraph 21 held as under:-
“21. There are evidently two lines of decisions of this Court
operating in the field. One being the cases which would come
within the purview of Capt. M. Paul Anthony v. Bharat Gold
Mines Ltd. and G.M. Tank V. State of Gujarat. However, the
second line of decisions show that an honourable acquittal in the
criminal case itself may not be held to be determinative in respect
of order of punishment meted out to the delinquent officer, inter
alia, when; (i) the order of acquittal has not been passed on the
same set of facts or same set of evidence; (ii) the effect of
difference in the standard of proof in a criminal trial and
disciplinary proceeding has not been considered or; where the
delinquent officer was charged with something more than the
subject-matter of the criminal case and/or covered by a decision
of the civil court.”
10. As regards the judgment cited by the petitioner in (2008) 1 SCC page 650,
the same does not apply to the facts of this case since the matter related to stay of
departmental proceedings on the ground that criminal proceedings were going on,
however, in the instant case the order of dismissal is under challenge in view of the
fact that the petitioner was not even charge-sheeted and or sent for trial and thus
has been exonerated.
11. There is no dispute about the consistent view taken time and again by the
Hon’ble Supreme Court in 2008 (4) SCC P.1 (Union of India vs. Naman Singh
Shekhawat), 2006 (4) SCC p. 265, 2006 (2) SCC p. 255, 2005 (2) SCC p. 764 etc.
that if an employee has been acquitted of a criminal charge, the same by itself
would not be a ground not to initiate a departmental proceeding against him or to
drop the same in the event an order of acquittal is passed.
12. However, after considering the aforesaid the Hon’ble Supreme Court in
2008(4) SCC p.1 also emphasised the need for compliance of the principles of
natural justice preponderance of probability to prove the charges on the basis of
7
materials on record and to consider relevant facts and the charges etc. an finally
directed to reinstate the petitioner with all consequential benefits.
13. A Constitution Bench in 1964 (5) SCR 431 (R.P. Kapur Vrs. Union of
India) at page 444 observed as under:-
“If the trial of criminal charge results in conviction,
disciplinary proceedings are bound to follow against public
servants so convicted even in case of acquittal proceedings may
follow where the acquittal is other than honourable.”
14. In 2008 (1) SCC page 650 the Hon’ble Supreme Court at para 29 has
specifically held as under:
“Furthermore the discretionary Writ Jurisdiction under Article 226 of
the Constitution of India should be exercised keeping in view the
conduct of the parties……”
In the instant case the conduct of respondent Management is on the face of
it unjust, unfair and unreasonable apart from being discriminatory and is thus
violative of Article 14 of the Constitution. The following reasons clearly reflects
adoption of double standard.
a) Out of 8 named accused 6 were charge-sheeted and sent up for trial. The
petitioner along with one more was not even charge-sheeted nor sent up
for trial and was discharged by the competent court.
b) A Vigilance Committee of 2 members were constituted by the Management
to investigate into the lapses and report. The two members Vigilance
Committee also exonerated the petitioner.
c) Those delinquent officers who were charge-sheeted and prosecuted were
retained in job and even promoted. Even the other officer who was not
charge-sheeted has been allowed to continue in service and was promoted
also.
d) Only the petitioner was dismissed from service even though he was not
charge-sheeted and even the Vigilance Committee exonerated him for the
same allegation.
e) The findings of the disciplinary and appellate authority is based on the
deposition of one Sohit Mishra who was chargesheeted but strangely no
disciplinary proceeding was initiated against him.
f) Justice should not only be done but should appear to be done has also
been flouted in view of the fact that the recommendation for punishment,
order of dismissal and the order of appellate authority was passed by the
same person i.e. General Manager.
8
15. Considering the aforesaid special facts and circumstance of the case and also
in view of the double standard and discriminatory approach and the fact that only
the petitioner was singled out even though he was neither sent up for trial nor
charge-sheeted and even the two Member Vigilance Committee report was in his
favour and thus this is a fit case where interference is required in view of the unjust,
unfair and unreasonable approach of the respondents which is on the face of it
illegal, arbitrary apart from being discriminatory and violative of Article 14 of the
Constitution of India.
16. This writ petition is accordingly allowed and the impugned order dated
30.01.2003 is hereby quashed with no order as to cost.
(Ajit Kumar Sinha, J.)
Jharkhand High Court, Ranchi
Dated the 26 June, 2009
D.S. / NKC N.A.F.R.