Kumar Doab (FIN) 15 October 2016

If employee is acquitted of the charge in the criminal proce

Dear Members,

I am sharing the following judgments:

If employee is acquitted of the charge in the criminal proceeding, then departmental proceeding on self-same charges should be dropped.

>>> If the accused was acquitted in a criminal proceeding on the self-same issues as in the disciplinary proceedings, the departmental proceeding should be dropped!

Often employees feel that powers vested in Disciplinary authority and Appellate Authority is misused/abused and prejudicial treatment is accorded to an employee.

Majority of the times the employees are not well versed with service rules, conduct and discipline rules, appeal rules, and are not properly informed.

Majority of the employees do not consult and thus do not avail the benefit of expertise of a counsel specializing in Labor/service matters.

Majority of the employees do not avail the benefit of ‘Defense Assistant’.

The employee should always preferably consult in time with a counsel specializing in Labor/service matters.

A very able counsel can make the employee aware that the authority could only proceed following the dicta of the Supreme Court……………..

….If the facts of a departmental proceeding and those of a criminal case were identical, the employee would straightway be entitled to exoneration from the charges in the departmental proceeding.

>>> Departmental/disciplinary proceedings invariably commence with delay, are plagued with procrastination prior and post the drawing up of the Memorandum of Charges, and eventually culminate after even longer delay.

Service rules of establishments give power to the competent authorities to suspend an employee and frame charges act decide on preponderance of probability, claiming that trial in departmental proceedings is different from judicial 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 not similar.

Although application of judicious mind is basic requirement be it departmental proceedings or judicial proceedings.

>>> At times although, employee is acquitted in judicial trial, still employee is marred in departmental proceedings.

If charges leveled and framed are on self-same issues as in the disciplinary/departmental proceeding and judicial/criminal proceedings then::: if the employee is acquitted in judicial/criminal proceedings::: then employee may be discharged in disciplinary/departmental proceeding.

In fact a careful review of service rules and precedence’s and judicial pronouncements may help an employee to get liberated from stigma, penury and get back his honor and employment and dues.

>>> A look at the law is very much necessary.

What is the effect of a criminal proceeding resulting in the acquittal of the accused employee? On this basis is it obligatory on the part of the disciplinary authority to exonerate the accused of the charges in the departmental proceedings? Or should the disciplinary proceeding continue with full vigor in spite of the acquittal of the accused? Should the acquittal in the criminal proceedings, impel the disciplinary authority to consider whether to exonerate the accused or not?

>>> Earlier the courts of law decided e.g;

The acquittal of the petitioner from the criminal case is of no consequence having regard to the facts and circumstances of the case……………

….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….

---- Earlier Calcutta High Court decided:

“1. The writ petitioner had unsuccessfully challenged the order of termination dated 6th May 1999 in exercise of Clause 20(VI) of the standing order for the Haldia Refinery of the Indian Oil Corporation Limited (Refineries and Pipelines Division) certified under the Industrial Employment (Standing Orders) Act, 1946 in writ petition No. 10667(W) of 1999 since dismissed by an order dated 9th July 2002 passed by the learned single Judge, which is under challenge in this appeal.”

10. Admittedly the order of dismissal was passed on account of a misconduct, which is subject to disciplinary proceedings under Clause 20 of the standing order. Only exception is provided in Sub-clause (VI) of Clause 20 where service could be terminated on account of misconduct without holding an enquiry.

14. The giving of reasons distinguishes a decision from being a policy decision and an administrative decision. A policy decision cannot be questioned by the Court. When a decision is a policy decision, it does not require to be supported by reasons. Policy decisions are outside the bounds of the Court's revisional powers.

19. The petitioner was holding a permanent post. He has a right to continue in service. This right cannot be invaded except in accordance with law

21. The principle that an action prescribed by any rules has to be performed in the manner it is prescribed,

22. The question that an officer acting cannot exercise statutory power as held in T.R. Pandey (supra) is not more germane in the present case since the power exercised is not a statutory power and that we have held that the GM(PJ) could exercise the power under Clause 20(VI) when authorised by GM(I/C) in view of Clause 2(6).

23. The provision of Sub-clause (VI) could be exercised only in an appropriate situation. The distinction between emergency power and special power is of no relevance in the present case since the exercise of such power is to be supported by reasons, which we have found against the contention of Mr. Moitra with regard to perversity and mala fide.

24. The acquittal of the petitioner from the criminal case is of no consequence having regard to the facts and circumstances of the case

25. The question of alternative submission relying on O.P. Bhandari v. Indian Tourism Development Corporation Ltd. and Ors., would not be necessary to be gone into in the present case in view of our finding recorded above. The exercise of the power in hoi-haste as we have already discussed is no more necessary to be dealt with in view of the fact that we cannot place ourselves at the spot and in the shoes of the authority. The question of reinstatement as propounded in paragraph 196 in Bhagatram's case (supra), having regard to the facts and circumstances of the case is of no help to us.

Order:

26. In the result, the appeal fails and is hereby dismissed. The order passed by the learned single Judge is hereby affirmed.

Calcutta High Court

Ajit Kumar Nag vs General Manager (Pj), Indian Oil ... on 6 February, 2004

Author: D Seth

Bench: D K Seth, R N Sinha

https://indiankanoon.org/doc/683852/

----Earlier Supreme Court also said:

"11. 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 not 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 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. "

Supreme Court of India

Ajit Kumar Nag vs G.M.(P.J.)Indian Oil ... on 19 September, 2005

Author: H C Thakker

Bench: S.N. Variava, C.K. Thakker, Tarun Chatterjee

https://indiankanoon.org/doc/309285/

>>> Later the Apex Court has revisited the judgments and upholded;

If the facts of a departmental proceeding and those of a criminal case were identical, the employee would straightway be entitled to exoneration from the charges in the departmental proceeding.

Since the appellant has been exonerated of the charge, the appellant is entitled to reinstatement with full salary, allowance and subsequent promotions

>>> It is pertinent to quote from the ruling of a five Judges Constitution bench of the Court, light from which was visited later by the Apex Court :

ACT:

Civil Service-Member of former Secretary of State's  Service

suspended  by Governor pending criminal      proceeding-Validity

of order-Rule, if ultra vires-All India Services (Discipline

and  Appeal) Rules, 1955, r.7--Constitution of    India,     Art.

314-Government    of  India  Act,  1935,      ss.241,   247-Civil

Services (Classification, Control and Appeal) Rules, rr. 49,

56  Fundamental   Rules, r.53-Indian  Administrative  Service

(Recruitment)     Rules.      1954,      r.3-India,     (Provisional

Constitution)  Order,  1947,  Art.7(1).-Indian    Independence

Act, 1947, s. 10

HEADNOTE:

The  appellant joined the Indian Civil Service in  1939  and

was posted in the province of Madras.  After the transfer of

power  under the Indian independence Act on August  15,1947,

he was transferred  to  the  Punjab  and  later  when   the   Indian

Administrative Service was constituted he became its member.

On  July 18, 1959, he was suspended by the Governor  of  the

State  of  Punjab  under  r. 7(3)  of  the  Indian  Services

(Discipline  and Appeal) Rules, 1955, on the ground  that  a

criminal  case was pending against him.      He  challenged   the

order  of suspension by a writ petition in the    Punjab     High

Court as being violative of the guarantee contained in  Art.

314  of the Constitution and contrary to r. 49 of the  Civil

Services  (Classification, Control and Appeal)    Rules  which

provided  only   for suspension as a penalty.  His  case      was

that  there was no provision immediately before January  26,

1950,  that  provided  for  suspension otherwise  than    as

penalty.  The High Court dismissed the petition.

Held:-(per Gajendragadkar, Subba Rao, Wanchoo and Shah, JJ).

The  general  law of master and servant and s.    247  of     the

Government of India Act, r. 53 of the Fundamental Rules  and

rr.  49, 56 of the Civil Services  (Classification,  Control

and  Appeal) Rules, read together clearly show that  members

of  the former Secretary of State's Services were on  August

14, 1947, liable to suspension either as an interim  measure

or  as     a punishment.  Interim suspension could      be  imposed

either by the Secretary of State as the appointing authority

or  the Governor-General or the Governor, as the case  might

be, as the statutory authority.

It  was not therefore correct to say that there could be  no

suspension  except  by way of punishment under r.49  of  the

Appeal     Rules before 1947.  In a case of interim  suspension

before 1947 there was however no right of appeal.

Article 314 of the Constitution, properly construed, affords

such  protection to the members of the Secretary of  State's

Services  as  they were entitled to immediately    before     the

commencement  of  the Constitution.  There can be  no  doubt

that suspension pending a departmental enquiry or a criminal

proceeding falls within the word 'disciplinary matters' used

in that Article.

It was not correct to say that as independence was conferred

on  India and the Services automatically  terminated,  there

was  in     law reappointment of all the  former  Secretary  of

State's     Services, and those serving in a province  must  be

deemed     to have been reappointed by the Governor  and  that,

consequently,  the Governor as the appointing authority  had

the power to order suspension…………………..

JUDGMENT:

……………..It was further of the view that suspension during the pendency of an enquiry was a power inherent in an employer like the Government and the power to suspend was always implied in the authority making the appointment. The High Court therefore rejected the contention of the appellant that under the old rules no member of the Secretary of State's Services could have been suspended except by way of punishment. ………………….

………………….. The appellant was serving under the Madras Government immediately before the appointed day. He will therefore be deemed to be appointed by the Governor of the Province of Madras to the post he was holding on the appointed day. The Governor of the Province was his appointing authority and therefore he could be suspended on the day immediately before the commencement of the Dominion by the Governor of the Province where he might have been then serving. He can at best claim protection of his right of not being suspended pending departmental enquiry or of a criminal charge by any authority of a lower rank. Rule 7 of the Discipline Rules does not provide for such suspension of a person who had been a member of the Secretary of State's Services by an authority lower than the Governor.. The appellant was suspended by the Governor of Punjab on July 18, 1959. He had no right of appeal against such an order of suspension. The Discipline Rules did not provide for an appeal against such an order of suspension and, in not so providing, cannot be said to violate the provisions of art. 314 of the Constitution as the appellant had no right of appeal against such an order before the commencement of the Constitution. It follows that r. 7 of the Discipline Rules does not violate the provisions of that Article and that the impugned order of suspension was therefore valid……………….

"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."

Supreme Court of India

R.P. Kapur vs Union Of India And Anr on 19 November, 1963

Author: K Wanchoo

Bench: Gajendragadkar, P.B., Subbarao, K., Wanchoo, K.N., Shah, J.C., Dayal, Raghubar

https://indiankanoon.org/doc/1388803/

>>> …………This appeal is directed against the final judgment and order dated 18.8.2003 in Letters Patent Appeal No. 1085 of 2002 filed by the appellant herein. By its impugned final judgment, the High Court dismissed the L.P.A. filed by the appellant herein. Brief facts:

The appellant joined the service in 1953 as an Overseer. The appellant was regularly submitting his property return showing all his movable and immovable properties. As per the Department, the movable and immovable properties were disproportionate to his known sources of income. The Anti-Corruption Bureau carried out an investigation against the appellant and submitted a report and on the basis of the said report, a charge sheet dated 20.2.1979 was issued alleging that the appellant had illegally accumulated the excess income by way of gratification. The appellant submitted his explanation on 15.5.1979 and denied the allegations as well as charges made in the charge sheet. A departmental enquiry was ordered and as per Departmental Enquiry Reported dated 31.3.1980, the appellant was found guilty of the charge. The respondent by order dated 21.10.1982 passed an order of dismissal from the service as punishment.

Against the said dismissal order, the appellant filed a writ petition before the High Court. The learned single Judge concluded that there is sufficient evidence against the appellant and dismissed the petition. Against the order of the learned single Judge, the appellant preferred L.P.A. and raised the relevant contentions. The Division Bench dismissed the L.P.A. by confirming the order of the learned single Judge. The said decision is challenged in this appeal by special leave. The charges made against the appellant in the departmental enquiry

CRIMINAL CASE UNDER THE PREVENTION OF CORRUPTION ACT………

……………….lodged the criminal complaint against the appellant in Special Case No. 6 of 1987 before the Special Judge, Kachchh at Bhuj for the alleged offence punishable under Section 5(1)(e) read with Section 5(2) of the Prevention of Corruption Act, 1947 (hereinafter referred to as "the P.C. Act').

The Special Judge had honourably acquitted the appellant of the offence punishable underSection 5(1)(e) read with Section 5(2) of the Act by holding that the prosecution has failed to prove the charges levelled against the appellant and thus the appellant cannot be held to be guilty of the said offence. This acquittal is by way of complete exoneration and not by giving benefit of doubt which is evident from the judgment of the Special Judge. The Division Bench, however, overlooked this fact and the additional fact that on the basis of very report submitted by Mr. V.B. Raval, the Special Judge had acquitted the appellant.

It is also pertinent to notice that the respondents have not challenged the order passed by the Special Judge acquitting the appellant before any forum and that, therefore, the order passed by the Special Judge has reached its finality and has become final and conclusive…………..

(e) Since the appellant has been exonerated of the charge, the appellant is entitled to reinstatement with full salary, allowance and subsequent promotions. …………….

……………………We have given our anxious and thoughtful consideration to the rival submissions made by the counsel on either side. We have also carefully considered the judgments impugned in this case and also of the order of acquittal passed by the Special Judge in the proceedings initiated against the appellant under the P.C. Act. We have already reproduced the charge framed in the disciplinary proceedings and charge framed in the criminal proceedings. A reading of both the charges would clearly go to show that both the charges are grounded upon the same set of facts and evidence and also pertains to the known source of income of the accused and the presumption raised that that the said amount was obtained by him by illegal and corrupt means. ………….

……………In our opinion, such facts and evidence in the department 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 finding recorded in the domestic enquiry was found to be valid by the Courts below, when there was an honourable 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's case (supra) will apply. We, therefore, hold that the appeal filed by the appellant deserves to be allowed………….

.................... we deem it proper to set aside the order of dismissal …………………….. The appellant would be entitled to pension .

Supreme Court of India

G.M. Tank vs State Of Gujarat & Anr on 10 May, 2006

Author: . A Lakshmanan

Bench: Dr. Ar. Lakshmanan, R.V. Raveendran

CASE NO.: Appeal (civil)  2582 of 2006

https://indiankanoon.org/doc/1562148/

>>> The Supreme Court of India after examination of a number of authorities came to the conclusion that if the facts of a departmental proceeding and those of a criminal case were identical, the witnesses were the same and the recorded evidence more or less identical and the criminal case resulted in the acquittal of the accused employee, the technical rule that the burden of proof in a criminal         and a civil proceeding is not the same would not apply. The employee would straightway be entitled to exoneration from the charges in the departmental proceeding.

Supreme Court of India

Capt.M. Paul Anthony vs Bharat Gold Mines Ltd. & Anr

https://indiankanoon.org/doc/888207/

The two Judges bench departed from the ratio laid down in Ajit Kumar Nag v. General Manager (PJ), Indian Oil Corpn. Ltd. Haldia and Others reported in (2005) 7 SCC 764 by relying on the ruling of a five Judges Constitution bench of the Court in R.P. Kapur v. Union of India reported in (1964) 5 SCR 431. Following that decision and Capt. M. Paul Anthony v. Bharat Gold Mines Ltd. and another reported in AIR 1999 SC 1416 this bench of the Supreme Court observed as follows:

>>> A point of some substance has been raised in this writ. The question is: if a departmental proceeding and a criminal proceeding on the self-same charges have been started against an employee and he is acquitted of the charge in the criminal proceeding, should he be also, as a matter of course be exonerated in the departmental proceeding and/or should the departmental proceeding be dropped?

The writ petitioner was in 1995 working as a Block Sarkar with Kolkata  Municipal Corporation. He is still working with the organisation. In that year, an allegation was made against him by the Corporation that the money which was entrusted with him for payment of remuneration of lorry mazdoors was not so utilised. He did not pay the lorry mazdoors or paid them less. He mis-appropriated the remuneration fund. A first information report was lodged against him.

At the same time a departmental disciplinary proceeding was started against him. On 17th January, 1996 he was chargesheeted. He was suspended but subsequently reinstated.

The criminal proceeding which was started further to the first information report resulted in the acquittal of the petitioner on 4th September, 2008 after a full-fledged trial. When this acquittal verdict was passed, the departmental proceedings were also over. As the criminal proceedings were pending, the decision in the departmental proceeding was not made. On 17th May, 2010 a final order was passed by the Joint Commissioner (G) and the Disciplinary Authority. An appeal against the said order was preferred and dismissed on 17th November, 2012 by the Municipal Commissioner and Appellate Authority. Two increments were withheld with cumulative effect.

Before proceeding to answer the question posed by this Court I would like to refer to note 1 of CMC services (Classification Control and Appeal)

Regulations, 1985. It is in the following terms:

Note-1. "In all cases of fraud, embezzlement, or similar offence the disciplinary authority shall take steps to            institute departmental proceeding against all the            delinquents and conduct them with strict adherence to             the regulations upto the point at which prosecution of            any of the delinquents begins. At that stage it must be             specifically considered whether further conduct of the             departmental proceeding against any of the remaining             delinquents is practicable, and if so, it shall continue as             far as possible (which will not, as a rule, include finding            and sentence). If the accused is convicted, the             departmental proceedings against him shall be resumed and formally completed either by dismissing removing             the person from Corporation service or by reducing him             in rank on the ground of his conviction immediately             without waiting for the expiry of the time for preferring             an appeal against the order of conviction by the first             trying court of the decision on appeal preferred before             higher court against the conviction, provided there is no             prohibitory order of the court to the contrary, final             action to pass orders of dismissal, etc, should proceed in             accordance with the order of the court. If the accused is             not convicted, the departmental proceedings against             him should be dropped unless the authority competent             to the disciplinary action is of opinion that the facts of             the case disclosed adequate grounds for taking             departmental action against him. In either case the             proceedings against the remaining delinquents shall be             resumed and completed as soon as possible after the             termination of the proceedings in Court.

            Explanation-Departmental proceedings shall not as a             rule be initiated on the same charges or on charges             substantially similar to those of which a Corporation              employee is acquitted in consequence of or by a decision             of a Court of Law. Discharge by the Court on the             submission of final report by the police does not,            however, amount to acquittal and there is no bar to             departmental proceedings being initiated after such             discharge either on the same charges or on charge             substantially similar to those leading to the discharge."

Under the rule, if the accused was acquitted in a criminal proceeding on the self-same issues as in the disciplinary proceedings, the departmental proceeding would be dropped. An exception was when the authority

competent to take disciplinary action was of the opinion that the facts of the case warranted departmental action against the employee.

At this stage a look at the law is very much necessary.

What is the effect of a criminal proceeding resulting in the acquittal of the accused employee? On this basis is it obligatory on the part of the disciplinary authority to exonerate the accused of the charges in the departmental proceedings? Or should the disciplinary proceeding continue with full vigour in spite of the acquittal of the accused? Should the acquittal in the criminal proceedings impel the disciplinary authority to consider whether to exonerate the accused or not?

In Capt. M. Paul Anthony v. Bharat Gold Mines Ltd. and another

reported in AIR 1999 SC 1416, ………………… the Supreme Court after examination of a number of authorities came to the conclusion that if the facts of a departmental proceeding and those of a criminal case were identical, the witnesses were the same and the recorded evidence more or less identical and the criminal case resulted in the acquittal of the accused employee, the technical rule that the burden of proof in a criminal         and a civil proceeding is not the same would not apply. The employee would straightway be entitled to exoneration from the charges in the departmental proceeding. In Ajit Kumar Nag v. General Manager (PJ),

Indian Oil Corpn. Ltd. Haldia and Others reported in (2005) 7 SCC

 764…………………………

Therefore, the law on the subject is this. If the alleged facts on which a criminal proceeding has been started are the same as those on the basis of which a departmental disciplinary proceeding is also commenced, the evidence in the criminal proceeding and in the disciplinary proceeding is more or less the same and the criminal proceeding is terminated by an honourable acquittal of the accused employee, then the departmental proceedings cannot be continued.

It is quite plain that on the self-same facts, after consideration of the same evidence, as in the departmental proceeding, in detail, the learned Judge came to the finding that the prosecution had failed to prove its case. In my opinion, the acquittal of the accused was honourable. Therefore, the disciplinary authority, before which the proceeding had been concluded, had the duty to exonerate the petitioner.

Even if I consider the argument that the departmental rules gave power to the disciplinary authority to consider whether to proceed with the disciplinary proceedings, it could only proceed with it following the dicta of the Supreme Court.

Otherwise, this part of the rule would be against the law of our land.

Therefore, the consideration which the disciplinary authority had to take into account was whether the facts which constituted the criminal case were identical to those which constituted the departmental proceedings, the evidence was the same and the accused had been acquitted honourably.

Instead of making the above analysis, the disciplinary authority had proceeded on the basis that there was a difference in the standard of proof in a civil and criminal case and so punishment should be imposed on the petitioner.

From the terse reasons that have been given by the disciplinary authority it appears that apart from the above elementary principle of criminal law it considered nothing. It has to be presumed that it had nothing to consider because it would not be able to show that the facts involved in the disciplinary authority were different or that the evidence was not the same or that the acquittal was not honourable. The order of the appellate authority dated 17th November, 2012 suffers from the same vice. For all those reasons the order of the disciplinary authority dated 8th May, 2010 and that of the appellate authority on 17th November, 2012 are set aside.

This writ application is allowed. Consequential reliefs may follow.

Calcutta High Court

Goutam Bhattacharjee vs Kolkata Municipal Corporation & ... on 31 March, 2016