Secretary C.G.Swatantra Mazd. Vs the C.M.D. Secl and Anr.

1. The petitioner has challenged the award passed by the Central Government Industrial Tribunal-Cum-Labour Court, Jabalpur (MP) dated 24.09.1999 whereby the reference made by the Government of India, Ministry of Labour dated 18.06.1992 was decided against the workman in favour of the management, whereby the termination of services of the petitioner has been affirmed.

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1. The facts of the present case are that the workman/petitioner was working as

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a loader in the Rajgamar Colliery SECL. It was alleged that on 12.03.1991, the petitioner and other loaders assaulted Dy. Personnel Manager using iron rod, lathi and Belcha. An FIR was lodged against the petitioner and other workmen and it was registered for the commission of offence punishable under Sections 148, 332/149 & 427/149 of IPC. The management issued an article of charge on 16.03.1991 with the allegations that the petitioner and other workmen assaulted Shri S.P. Singh, Dy. Personnel Manager on 12.03.1991 using an iron rod, Lathi and Belcha with the intention to kill him; he was saved by Shri P.N. Singh, Sr. Overman, S.K. Purty, Senior. S.I. Karanj Gaunkar, S.G. and Shri Rajaram and at the same time, the petitioner and other workers ransacked causing damage to the property of the company. It is further alleged that the conduct of the petitioner amounted to serious misconduct under the Certified Standing Order Clause Nos. 17(1)(1), (q), (r) and (t) and the same read as follows:-

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“ Clause 17(1)(1) Causing willful damage to work in progress or to property of the employer.

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Clause 17(1) (q) Any breach of the Mines Act, 1952, or any other act or any rules, regulations or bye-laws thereunder, or of any Standing Orders,

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Clause 17(1)(r) - Threatening, abusing or assaulting any Superior or Co-worker.

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Clause 17(1) (t) - Preaching of or inciting to violence.”

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1. The petitioner filed a reply to the article of charge. A departmental inquiry was ordered by the management. The Inquiry Officer and Presenting Officer were appointed. The petitioner participated in the departmental inquiry. He was assisted by the workmen to defend. The documents were supplied to

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the petitioner. The management examined its witnesses. The petitioner was permitted to cross-examine those witnesses. The Inquiry Officer found the petitioner guilty and submitted its report before the disciplinary authority. The disciplinary authority terminated the services of the petitioner vide order dated 25.06.1991. An appeal was preferred by the petitioner and it was also dismissed. The learned Court below affirmed the findings recorded by the disciplinary authority and appellate authority.

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1. Mr. Chandra, the learned counsel appearing for the petitioner would argue that the petitioner was falsely implicated and he did not commit any act of violence. He would further argue that a false criminal case was registered and the petitioner as well as other accused persons have already been acquitted by the learned Judicial Magistrate, First Class, Korba in Criminal Case No.144/02 vide judgment dated 13.03.2006. He would contend that the management ought to have considered the order of acquittal passed in favour of the petitioner. He would further contend that the petitioner was not afforded the proper opportunity to defend himself in the departmental inquiry. He would also argue that the penalty inflicted is shocking and disproportionate looking to the misconduct of the petitioner. He prays for the quashment of the order dated 24.09.1999.

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1. On the other hand, Mr. Kesharwani, the learned counsel appearing for respondent No.1 would oppose the submissions made by Mr. Chandra. He would submit that on 12.03.1991, the petitioner and other workmen assaulted the Senior Personnel Manager namely S.P. Singh in the presence of other officials of the departmental. He would further submit that the

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incident was witnessed by many persons and they were examined as the management witnesses. He would contend that in the departmental inquiry, the witnesses categorically made a statement against the petitioner. He would further contend that the petitioner was afforded an opportunity to cross-examine those witnesses. He would also contend that the article of charge was issued; it was replied to by the petitioner; the documents were supplied; the witnesses were examined; the witnesses were cross-examined by the petitioner; an inquiry report was submitted and the petitioner was found guilty; thereafter, the disciplinary authority passed an order of termination against the petitioner. He would argue that the petitioner has not challenged the inquiry report and the order passed by the disciplinary authority on any legal grounds. He would further argue that the learned Court below has considered the entire material and thereafter affirmed the findings recorded by the disciplinary authority. He would lastly submit that the instant petition deserves to be dismissed.

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1. I have heard learned counsel appearing for the parties and perused the record.

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1. The services of the petitioner were terminated vide order dated 25.06.1991. An appeal preferred by the petitioner was also dismissed.

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1. The Government of India, Ministry of Labour vide order dated 18.06.1992 referred the following dispute for adjudication to the Tribunal:-

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"Whether the action of the management of Rajgamar Colliery of SECL in terminating the services of Shri Ramani Loader, is legal and justified? If not, to what relief the concerned workman is entitled to?"

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1. The petitioner has assailed the order of termination of services passed by

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the disciplinary authority and the award passed by the learned Tribunal dated 24.09.1999 on the grounds that the orders passed by the respondent authorities are arbitrary, irrational, unwarranted and illegal. Further ground raised by the petitioner in the writ petition is that the acquittal order dated 13.03.2006 has not been taken into consideration by the learned Tribunal. The petitioner has raised another ground that the department acted with malice and the principles of the Rules and Article 311 of the Constitution of India have not been followed.

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1. The petitioner has not raised grounds to the effect that he was not afforded sufficient opportunity of hearing or documents were not supplied or the procedure for inflicting the major penalty was not followed by the management or disciplinary authority was not competent.

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1. The record of the Court below would show that a complaint was made by Shri S.P. Singh, Senior Personnel Manager against the petitioner and other workmen with regard to the incident dated 12.03.1991. The article of charge was issued on 16.03.1991. The Inquiry Officer and Presenting Officer were appointed. The Management examined S.P. Singh, S.K. Purty, Karanj Gaunkar and P. N. Singh and these witnesses were cross-examined by the petitioner.

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1. In the inquiry report, the Inquiry Officer found all the allegations proved against the petitioner. The inquiry report was placed before the disciplinary authority. The disciplinary authority inflicted the penalty of termination of services of the petitioner vide order dated 24.09.1991. The appellate authority also affirmed the said order.

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1. The Hon’ble Supreme Court in the matter of Nelson Motis vs. Union of

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India & Ors. (1992) 4 SCC 711 , held that the disciplinary proceedings can be legally continued even where the employee is acquitted in a criminal case as the nature and proof required in a criminal case is different from those in the departmental proceedings. Besides, the Court found that the act which led to the initiation of departmental proceedings were not exactly the same which were the subject matter of the criminal case. The Hon’ble Supreme Court observed as under:-

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"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 proceedings. 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.

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15) In the matter of State of Rajasthan vs. B.K. Meena & Ors. (1996) 6 SCC

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417, the Hon’ble Supreme Court held as under:-

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"14. It would be evident from the above decisions that each of them starts with the indisputable proposition that there is no legal bar for both proceedings to go on simultaneously and then say that in certain situation, it may not be 'desirable', 'advisable' or 'appropriate' to proceed with the disciplinary enquiry when a criminal case is pending on identical charge. The staying of disciplinary proceedings, it is emphasised, is a matter to be determined having regard to the facts and circumstances of a given case and that no hard and fast rules can be enunciated in that behalf. The only ground suggested in the above decisions as constituting a valid ground for staying the disciplinary proceedings is that 'the defence of the employee in the criminal case may not be prejudiced.' This ground has, however, been hedged in by providing further that this may be done in cases of grave nature involving questions of fact and law. In our respectful opinion, it means that not only

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the charges must be grave but that the case must involve complicated questions of law and fact. Moreover, 'advisability', 'desirability' or 'propriety', as the case may be, has to be "determined in each case taking into consideration all the facts and circumstances of the case. The ground indicated in D.C.M. (AIR 1960 SC 806) and Tata Oil Mills (AIR 1965 SC 155) is also not an invariable rule. It is only a factor which will go into the scales while judging the advisability or desirability of staying the disciplinary proceedings. One of the contending considerations is that the disciplinary enquiry cannot be - and should not be - delayed unduly. So far as criminal cases are concerned, it is well known that they drag on endlessly where high officials or persons are involved. They get bogged down on one or the other ground. They hardly ever reach a prompt conclusion. That is the reality in spite of repeated advice and admonitions from this Court and the High Courts. If a criminal case is unduly delayed that may itself be a good ground for going ahead with the disciplinary enquiry even where the disciplinary proceedings are held over at an earlier stage. The interests of administration and good government demand that these proceedings are concluded expeditiously. It must be remembered that interests of administration demand that undesirable elements are thrown out and any charge of misdemeanour is inquired into promptly. The disciplinary proceedings are meant not really to punish the guilty but to keep the administrative machinery unsullied by getting rid of bad elements. The interest of the delinquent officer also lies in a prompt conclusion of the disciplinary proceedings. If he is not guilty of the charges, his honour should be vindicated at the earlist possible moment and if he is guilty, he should be dealt with promptly according to law. It is not also in the interest of administration that persons accused of serious misdemeanour should be continued in office indefinitely, i.e., for long periods awaiting the result of criminal proceedings. It is not in the interest of administration. It only serves the interest of the guilty and dishonest. While it is not possible to enumerate the various factors, for and against the stay of disciplinary proceedings, we found it necesasry to emphasise some of the important considerations in view of the fact that very often the disciplinary proceedings are being stayed for long periods pending criminal proceedings. Stay of disciplinary proceedings cannot be, and should not be, a matter of course. All the relevant factors, for and against, should be weighed and a decision taken keeping in view of the various principles laid down in the decisions referred to above." This decision has gone two steps further to the earlier decisions by providing :The 'advisability', 'desirability' or 'propriety' of staying the departmental proceedings "go into the scales while judging the advisability or desirability of staying the disciplinary proceedings" merely as one of the factors which

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cannot be considered in isolation of other circumstances of the case. But the charges in the criminal case must, in any case, be of a grave and serious nature involving complicated questions of fact and law. (2) One of the contending considerations would be that the disciplinary enquiry cannot -- and should not be -- delayed unduly. If the criminal case is unduly delayed, that may itself be a good ground for going ahead with the disciplinary enquiry even though the disciplinary proceedings were held over at an earlier stage. It would not be in the interests of administration that persons accused of serious misdemeanour should be continued in office indefinitely awaiting the result of criminal proceedings. In another case, namely, Depot Manager, Andhra Pradesh State Road Transport Corporation vs. Mohd. Yousuf Miyan (1997) 2 SCC 699 = AIR 1997 SC 2232, again it was held that there is no bar to proceed simultaneously with the departmental inquiry and trial of a criminal case unless the charge in the criminal case is of a grave nature involving complicated questions of fact and law.

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22.The conclusions which are deducible from various decisions of this Court referred to aboveare :

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(i) Departmental proceedings and proceedings in a criminal case can proceed simultaneously as there is no bar in their being conducted simultaneously, though separately.

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(ii) If the departmental proceedings and the criminal case are based on identical and similar set of facts and the charge in the criminal case against the delinquent employee is of a grave nature which involves complicated questions of law and fact, it would be desirable to stay the departmental proceedings till the conclusion of the criminal case.

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(iii) Whether the nature of a charge in a criminal case is grave and whether complicated questions of fact and law are involved in that case, will depend upon the nature of offence, the nature of the case launched against the employee on the basis of evidence and material collected against him during investigation or as reflected in the charge sheet.

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(iv) The factors mentioned at (ii) and (iii) above cannot be considered in isolation to stay the Departmental proceedings but due regard has to be given to the fact that the departmental proceedings cannot be unduly delayed.

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(v) If the criminal case does not proceed or its disposal is being unduly delayed, the departmental proceedings, even if they were stayed on account of the pendency of the criminal case, can be resumed and proceeded with so as to conclude them at

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an early date, so that if the employee is found not guilty his honour may be vindicated and in case he is found guilty, administration may get rid of him at the earliest.

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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.”

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1. With regard to the contention made by Mr. Chandra that the petitioner was acquitted in the criminal case, it is a well-settled principle of law that the fact of acquittal in a criminal case cannot be considered with the departmental inquiry as parameters to prove the guilt in a criminal case and the departmental inquiry are entirely different. In a criminal case, the prosecution has to prove the guilt of an accused beyond the reasonable doubt whereas in the departmental inquiry, on the principle of preponderance of probabilities.

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1. Taking into consideration the findings recorded by the disciplinary authority, the appellate authority and the learned Tribunal, in the opinion of this Court, no case is made out for interference. Consequently, this petition fails and is hereby dismissed . No order as to cost(s).

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(Rakesh Mohan Pandey) Judge

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Rekha

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Sd/-

Secretary C.G.Swatantra Mazd. v. the C.M.D. Secl and Anr.

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Secretary C.G.Swatantra Mazd. v. the C.M.D. Secl and Anr.

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