D&ar action on criminal case
Kishore Malkunaik
(Querist) 08 September 2018
This query is : Resolved
Sir my one of colleague is suspended by the Railway department on the criminal charges registered u/s 384 & 506 IPC and immediately he approached hon'ble high court Hyderabad in which court allowed criminal wp and the proceedings in crime number pending on the file of local police are hereby quashed (FIR quashed) . Though department has issued departmental action and issued Major penalty charge sheet on the same charges which was given in the FIR and also transferred him from one division to another division. Please provide legal opinion
Isaac Gabriel
(Expert) 09 September 2018
If the disciplinary action is based on the same set of the criminal case, the disciplinary authority should wait for the disposal of the criminal case, though both travel in different directions. If acqitted in criminal case, the disciplinary action should be dropped. If at all punishment awarded in disciplinary action, it is subject to the result in criminal case.
Guest
(Expert) 09 September 2018
@ Shri Isaac Gabriel,
Sorry to differ with your views. May the contents of the charge be same in the criminal case and the disciplinary case, both have to be dealt with on different angles with specific reference to the criminal laws on the part of the court and departmental rules depending upon the nature of indiscipline involved as per the organization's Conduct Rules for the employees. The only difference is that the Charge Sheet for departmental inquiries should not contain reference of any section of IPC, CrPC, Evidence Act or any other Act of Law, in the departmental Inquiry case. Also, dropping of the departmental charge cannot be automatic, if acquitted by the court of law. Disciplinary Authority does not also need to wait for the disposal of the criminal case, if indiscipline is involved and the department has sufficient evidence to sustain the charge.
The only need for the employee is to effectively defend his case on different angles involved in the case without clubbing both the cases. The employee should not take that with laxity due to some misunderstanding about the similarity of ground in both the criminal as well as departmental cases. Being cautious is a must. Otherwise, even if acquitted by court, he can get penalized in departmental case, if he pleads solely on the similarity of the charge in the court case.
Sudhir Kumar, Advocate
(Expert) 09 September 2018
Not able to agree with Mr Gabriel.
Nothing seems illegal in deptt action as per your description.
Kishore Malkunaik
(Querist) 09 September 2018
Sir in this case FIR is quashed by the High court Hyderabad. So there is no criminal case at all. How the department can issue same charges as already FIR is quashed
Guest
(Expert) 09 September 2018
Mr. Kishore Malkunalk,
If some expert tells you that the department cannot issue same charge, would your department withdraw your charge, or else, if not what do you propose to do in that case, except to defend your case or file a case against the department and to wait for disposal of your case by the concerned Tribunal or the court of law?
Also, please clarify, why you have not asked this question to your own lawyer, who got your criminal FIR quashed?
In fact, your question, "How the department can issue same charges as already FIR is quashed ," is totally irrelevant to be posted here, as neither any expert at LCI is the spokesperson of your department, nor anyone is authorised to give any statement on behalf of your department, as to "How the department can issue same charges as already FIR is quashed," nor can compel your department to withdraw your charge sheet.
You may better ask this question from the concerned Disciplinary Authority, who has issued the charge sheet and to convince him that he could not issue a charge sheet, or be ready to defend your case to prove that the authority was not competent to issue the same charge. Otherwise, sufficient feedback has been given in reply to your query.
However, if not satisfied with the replies of the experts, you may get the documents related to both the cases, examined by a services laws expert and act upon his advice after such examination of documents.
Sudhir Kumar, Advocate
(Expert) 09 September 2018
"How can department issue ................"
Deptt can do so because they are empowered to do so. Closure of criminal case is no bar on disciplinary action.
Dr J C Vashista
(Expert) 09 September 2018
1. Very well analysed and advised by expert Mr. PS Dhingra, I fully agree with him.
2. You have adequately been obliged by experts, now it is your call.
3. If you are still not satisfied consult a local prudent lawyer practicing service matters.
4. If you want the answer of your question inter alia, that, "..how the department...."approach concerned authorities through your lawyer.
kavksatyanarayana
(Expert) 09 September 2018
I agree with the advise of senior expert Mr.Dhingra ji. for deviation of rules, instructions by an employee, the department may take suitable action againt an employee. If that employee involves in a criminal case also, then the department may take action for dviation of rules & regulations and instructions etc. besides criminal case. The Hon'ble court dismissed the criminal case only. so the department may taken action on other issues involved and proved in the case.
