Allowed

The Chief Operating Manager/Sc(Bg), v. B.Tulasiraj

Telangana HC21 Oct 2014WP/7858/2005

Case brief

AI extract

What is this about?

The High Court allowed the Writ Petition set aside the Central Administrative Tribunal order. The Court held that acquittal in a criminal case does not guarantee exoneration in departmental proceedings due to differing standards of proof (reasonable doubt vs. preponderance of probability), provided sufficient evidence of misconduct exists independently.

What did the court decide?

The impugned order dated 01.10.2004 passed by the Central Administrative Tribunal, Hyderabad Bench, in Original Application No.304 of 2001 is set aside.

The Chief Operating Manager/Sc(Bg), Vs… — Pension and Retirement Benefits | Telangana HC (2014)

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

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WRIT PETITION No.7858 OF 2005

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

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This Writ Petition, under Article 226 of the Constitution of India, is filed to call for the records relating to the order, dated 01.10.2004, in Original Application No.304 of 2001 passed by the Central Administrative Tribunal, Hyderabad Bench, Hyderabad (for short, ‘the Tribunal’) and quash the same.

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2. Brief facts that are necessary for disposal of the present Writ Petition may be stated as follows:

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Late Sri B.Tulasiraj (hereinafter referred to, as ‘the deceased’) while working as Goods Driver in Train No.UP CPC (N) with Electric Loco No.23430 on 01.08.1991, committed serious misconduct as he failed to control the speed of the train while entering loop line at Ramagundam and passed the UP Loop Line starter signal at ‘ON’ position and entered the Tower Car Siding, smashed the Tower Car and derailed along with 5 wagons at KM.273/21 and thereby violated GR 3.81 and GR 2.11 (2) (d) and Rule No.3-I (i), (ii) and (iii) of the Railway Service Conduct Rules, 1966. Thereupon, a regular departmental enquiry was conducted after giving reasonable opportunity to the deceased. The enquiry officer, basing on the evidence available on record, came to the conclusion that the charges levelled against the deceased have been established beyond preponderance of probability. Accepting the enquiry officer’s report, the disciplinary authority after issuing show cause notice, imposed punishment of removal from service. On appeal, it was dismissed and on revision, the punishment was confirmed. Railway police also registered a case against the deceased for rash or negligent driving of train and thereby smashing the Tower Car and resulting in derailment of 5 wagons. The competent Criminal Court after trial, acquitted the deceased on the ground that prosecution failed to establish the guilt of the deceased beyond all reasonable doubt. Immediately after acquittal in criminal case, the deceased filed Original Application before the Tribunal to consider his representation, as he was acquitted by the competent criminal Court. The said Original Application was disposed of directing the concerned authorities to

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pass necessary orders, duly taking note of acquittal in criminal case. The disciplinary authority accepted enquiry officer’s report and imposed punishment and on appeal, it was confirmed. The revisional authority confirmed the order of disciplinary authority, but in the meanwhile the deceased died on 14.03.1998. Thereafter, the legal representatives of the deceased filed Original Application challenging the punishment order. That Original Application was dismissed as it was not maintainable. Challenging the said order, the legal representatives of the deceased filed Writ Petition before this Court and this Court directed the Tribunal to consider the case of the respondents herein in accordance with law and Original Application is maintainable. In pursuance of direction given by this Court, the Tribunal passed the present impugned order, which is now under challenge.

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3. Learned counsel for the petitioners contended that it is not a case of no evidence; that simply because the deceased was acquitted by the competent Criminal Court, it need not necessarily follow that he is entitled to exoneration in the departmental proceedings and hence, he prays to dismiss the Writ Petition. He also placed reliance on a judgment of the Honourable Supreme Court in DIVISIONAL CONTROLLER V. STATE ROAD TRANSPORT CORPORATION.

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4. On the other hand, learned counsel for the respondents contended that the competent Criminal Court has given a categorical finding to the effect that there was no negligence on the part of the deceased in causing the accident and the said finding has become final; that when the said finding has become, the revisional authority cannot sit over as an appellate Court on the findings of the Criminal Court; that deceased served the Railway Department for about 33 years and there was no allegation of misconduct in the entire service of the deceased and for no fault of applicants, they cannot be denied pensionary and other retirement benefits to the legal representatives of the deceased and hence, she prays to dismiss the Writ Petition.

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5. There cannot be any dispute that in the departmental proceedings, it is for the disciplinary authority, in a case of appeal, it is for the appellate authority, and in the case of revision, it is for the revisional authority, to impose appropriate punishment, but there must be some evidence on record to establish the misconduct. The question of adequacy or inadequacy is not sufficient to interference with the findings of the enquiry officer. If there is some evidence on record to show that there was

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misconduct on the part of the charged officer, then the same can be acted upon. In case of no evidence, the Tribunal or this Court can interfere with the order of disciplinary authority.

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6. In the case on hand, it is not a case of no evidence, because there is no pleading in the Original Application to show that it is a case of no evidence. The Guard of the train was examined in the departmental proceedings. His evidence would clearly go to show that the train did not experience any trouble in stopping the train at 5 (five) places and it had stopped enroute upto Raghavapuram. He observed 4.8 kms/cm² of air pressure still prevailing in the gauge of his B/van, which is destroyed till the pressure dropped to 1 kg/cm² and on his application of air pressure, the speed reduced from 65 to 40 KMPH. He also specifically stated that speed of the train was high, he altered the driver, but, he did not apply the brakes.

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7. The finding of the enquiry officer that there was misconduct on the part of the deceased has been established beyond preponderance of probability. But, the question is whether the findings of the criminal Court are binding on the departmental proceedings or not.

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8. It is not in dispute before this Court that the charged officer was prosecuted for the offences punishable under Sections 304-A, 338, 337 and 427 of IPC and Section 154 and 175 of the Railways Act. Because of accident one person died, some other persons sustained grevious injuries, some other persons sustained simple injuries and loss was caused to the railway property. A categorical finding has been recorded by the criminal Court to the effect that there was no negligence on the part of the deceased in causing the accident. Driver, who was examined as P.W.14, categorically admitted that he alerted the deceased to apply for brakes, but the train did not stop, and as a result accident had taken place. When he enquired with the deceased, he informed that he applied brakes, because of lack of pressure, the train did not stop and therefore, there was no negligence. But such a statement was not stated when the guard was examined in the departmental enquiry conducted by the department.

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9. In a criminal prosecution, the burden is on the prosecution to establish the guilt of the accused beyond all reasonable doubt. Whereas, in departmental proceedings, the burden is on the department to prove the misconduct alleged by showing preponderance of probability. The burden required to be proved in the criminal

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prosecution and in departmental proceedings is entirely different. In a criminal case, the burden is very high, whereas in departmental proceedings it is not so high. In departmental enquiry, the evidential material must be such that it amounts to the guilt of the employee in respect of the charge against him with some degree of definiteness. Therefore, simply because deceased was acquitted in a criminal case, it does not necessarily mean as a corollary to follow that he is entitled to be exonerated in a departmental proceedings.

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10. Learned counsel for the petitioners placed reliance on a decision reported in DIVISIONAL CONTROLLER, KARNATAKA STATE ROAD TRANSPORT CORPORATION V. M.G. VITTAL RAO, wherein it was held thus (para 11):

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“The question of considering reinstatement after decision of acquittal or discharge by a competent criminal court arises only and only if the dismissal from services was based on conviction by the criminal court in view of the provisions of Article 311 (2) (b) [sic Article 311 (2) second proviso (a)] of the Constitution of India, or analogous provisions in the statutory rules applicable in a case. In a case where enquiry has been held independently of the criminal proceedings, acquittal in a criminal court is of no help. The law is otherwise. Even if a person stood acquitted by a criminal court, domestic enquiry can be held, the reason being that the standard of proof required in a domestic enquiry and that in a criminal case are altogether different. In a criminal case, standard of proof required is beyond reasonable doubt while in a domestic enquiry it is the preponderance of probabilities that constitutes the test to be applied.”

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From the above decision, it is clear that as the deceased was acquitted by the criminal court, it does not mean that he is entitled to exoneration in departmental proceedings. The evidence let in, in both the proceedings has to be independently assessed, evaluated and appreciated based on the two requirements viz., 1) proof beyond reasonable doubt in case of criminal case and 2) proof beyond preponderance of probability in case of civil prosecution. It is not a case of no evidence. The findings are based upon some evidence on record. The factual findings of disciplinary authority are, however, not open to challenge and the power of judicial review does not extend to examine the correctness or truth of the charges. Interference is permissible only when there is no evidence to prove the charges. The Tribunal gave incorrect finding and this fact has not been adverted to by the Tribunal

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and came to wrong conclusion. Therefore, the impugned order is liable to be set aside.

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11. Accordingly, the Writ Petition is allowed setting aside the impugned order, dated 01.10.2004, in Original Application No.304 of 2001 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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OCTOBER 21, 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.7858 OF 2005

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DATE:21.10.2014