High Court Punjab-Haryana High Court

Sunil Kumar Sharma vs The Oriental Insurance Company … on 23 September, 2008

Punjab-Haryana High Court
Sunil Kumar Sharma vs The Oriental Insurance Company … on 23 September, 2008
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