Allowed

The General Manager, v. Shaik Gaffar

Telangana HC20 Mar 2014WP/6467/2004

Case brief

AI extract

What is this about?

The Supreme Court set aside the Central Administrative Tribunal's order staying departmental proceedings against a railway officer. The Court held that an acquittal based on benefit of doubt is not an honourable acquittal barring disciplinary action, and delay without prejudice cannot halt inquiry.

What did the court decide?

The order dated 03.12.2003 in Original Application No.24 of 2003 passed by the Central Administrative Tribunal, Hyderabad Bench, Hyderabad is set aside.

The General Manager, Vs Shaik Gaffar — Constitutional and Fundamental Rights | Telangana HC (2014)

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THE HON'BLE SRI JUSTICE K.C.BHANU AND

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THE HON’BLE MRS JUSTICE ANIS

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WRIT PETITION No.6467 OF 2004

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ORDER:- (per Hon’ble Sri Justice K.C.Bhanu)

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Challenging the order, dated 03.12.2003, in Original Application No.24 of 2003 passed by the Central Administrative Tribunal, Hyderabad Bench, Hyderabad (for short, ‘the Tribunal’), the present Writ Petition is filed.

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2. Respondent herein filed the aforementioned Original Application to direct the 4^th petitioner herein not to proceed further in pursuance of the charge sheet issued in Standard Form No.V under Rule 9 of the Railway Servants (Discipline & Appeal) Rules, 1976, dated 29.12.1998, and to quash the same; to set aside the order of suspension, dated 31.12.1998, keeping him under suspension with effect from the date on which he was taken into police custody from 01.05.1991; to set aside the earlier suspension order issued by the Senior Divisional Operating Manager (BG), South Central Railway, Secunderabad, dated 27.09.1994, declaring that he is deemed to be continuing in service and direct the respondents to reinstate him into service with all consequential benefits including arrears of salary with interest, continuity of service, seniority, promotion and other benefits. The Tribunal, after considering the material on record, allowed the aforementioned Original Application.

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3. Learned Standing Counsel, appearing for the petitioners, contended that respondent was convicted by competent Criminal Court under Section 3 (a) of the Railway Property (Unlawful Possession) Act, 1966 and thereafter, his conviction and sentence

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were set aside by the Appellate Court, which was confirmed by the revisional Court.

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4. On coming to know about conviction of the delinquent officer, charge memo was issued to the respondent, for which he gave explanation. Thereafter, departmental proceedings were initiated. Law is well settled that when a person involved in a criminal case, even acquitted of the charges, it is not a bar for competent authority to proceed with the departmental enquiry unless, the acquittal in a criminal case is honourable. This aspect of the case has been clearly stated by Constitution Bench of the Honourable Apex Court in R.P.KAPUR V. UNION OF INDIA^[1] , wherein it was held thus:

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“If the trial of the criminal charge results in conviction, disciplinary proceedings are bound to follow against the public servant so convicted, even in case of acquittal proceedings may follow where the acquittal is other than honourable.”

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5. In this case, it is not an honourable acquittal of the respondent in criminal charge. He was found guilty of charges levelled against him in the first instance by competent Criminal Court and thereafter, his conviction and sentence were set aside by appellate Court by giving benefit of doubt. In the facts and circumstances of the case, there is no bar for departmental proceedings to proceed further.

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6. However, learned counsel for the respondent contended that the charge relating to the departmental enquiry and the criminal case is one and the same, it cannot be proceeded. We are unable to accept the said contention, because the burden of proof proceedings in a criminal case and departmental proceedings are entirely different and distinct. Unless it is shown that the charges, evidence both oral and documentary to be adduced in both criminal case as well as

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departmental proceedings are one and the same, the departmental proceedings cannot be stayed. This aspect of the case has been clearly stated in Three Judge Bench decision of the Honourable Apex Court in AJIT KUMAR NAG V. GENERAL MANAGER (PJ), INDIAN OIL CORPORATION LIMITED, HALDIA AND OTHERS^[2] , wherein it

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was held thus (para 11):

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“As far as acquittal of the appellant by a criminal court is concerned, in our opinion, the said order does not preclude the Corporation from taking an action if it is otherwise permissible. In our judgment, the law is fairly well settled. Acquittal by a criminal court would not debar an employer from exercising power in accordance with the Rules and Regulations in force. The two proceedings, criminal and departmental, are entirely different. They operate in different fields and have different objectives. Whereas the object of criminal trial is to inflict appropriate punishment on the offender, the purpose of enquiry proceedings is to deal with the delinquent departmentally and to impose penalty in accordance with the service rules. In a criminal trial, incriminating statement made by the accused in certain circumstances or before certain officers is totally inadmissible in evidence. Such strict rules of evidence and procedure would not apply to departmental proceedings. The degree of proof, which is necessary to order a conviction, is different from the degree of proof necessary to record the commission of delinquency. The rule relating to appreciation of evidence in the two proceedings is also similar. In criminal law, burden of proof is on the prosecution and unless the prosecution is able to prove the guilt of the accused “beyond reasonable doubt”, he cannot be convicted by a court of

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law. In a departmental enquiry, on the other hand, penalty can be imposed on the delinquent officer on a finding recorded on the basis of “preponderance of probability”. Acquittal of the appellant by a Judicial Magistrate, therefore, does not ipso facto absolve him from the liability under the disciplinary jurisdiction of the Corporation. We are, therefore, unable to uphold the contention of the appellant that since he was acquitted by a criminal court, the impugned order dismissing him from service deserves to be quashed and set aside.”

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From the above decision, it is clear that when the evidence to be adduced is different, charges are entirely different and burden of proof in both the cases are entirely different, there is no bar to further proceed in the departmental proceedings. The departmental proceedings and the criminal prosecution are entirely different in nature. They operate in different fields and they have different objectives. The scope of departmental enquiry is to determine whether the delinquent officer has committed misconduct? Whereas the scope of trial for criminal charge is to determine whether charges are proved beyond all reasonable doubt and if so to punish the person. The degree of proof what is necessary to record an order of conviction is different from the degree of proof, which is necessary to record the commission of misconduct. The Tribunal relied upon a decision in CAPT. M.PAUL ANTHONY V. BHARAT GOLD MINES LTD. (AIR 1999 SC 1416), when both the charges in the departmental proceedings and the criminal case are one and the same, then only departmental proceedings can be stopped. Witnesses cited in the charge memo are not the same persons, who are examined in the Criminal Court. Therefore, PAUL ANTHONY’S case has no application to the facts of the present case. There is no dispute with regard to the proposition of law laid down by the Apex Court that when

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the evidence of both oral and documentary is one and the same in both the departmental proceedings as well as in criminal case, then only the departmental proceedings are to be stopped.

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7. Secondly, the Tribunal on the ground of inordinate delay in conducting the departmental enquiry, quashed the charge memo. Law is well settled that inordinate delay in conducting enquiry or initiating enquiry by itself is not a ground to set aside the departmental enquiry, unless prejudice is shown to have been caused by such inordinate delay. There is no factual foundation that what prejudice has been caused to the respondent in not completing the enquiry. Even otherwise, it cannot be said that the delay can be attributable only to the Enquiry Officer. Because after issuance of the charge memo, it is not in dispute before this Court that the respondent approached the Tribunal and obtained stay and in view of grant of stay, the enquiry could not be completed. Hence, the Tribunal gave a perverse finding, which calls for interference by this Court. Therefore, the impugned order is liable to be set aside.

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8. Accordingly, the Writ Petition is allowed setting aside the order, dated 03.12.2003, in Original Application No.24 of 2003 passed by the Central Administrative Tribunal, Hyderabad Bench, Hyderabad. There shall be no order as to costs. Miscellaneous petitions, if any, pending in this Writ Petition shall stand closed.

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______________________ JUSTICE K.C.BHANU

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_______________ JUSTICE ANIS

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MARCH 20, 2014 YVL

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THE HON'BLE SRI JUSTICE K.C.BHANU AND THE HON’BLE MRS JUSTICE ANIS

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WRIT PETITION No.6467 OF 2004

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DATE:20.03.2014