Ishwar Chand vs Union of India and Another

Daya Chaudhary, J.—The petitioner has approached this Court by way of filing the present petition for issuance of direction to the respondents to reinstate him in service with all consequential benefits as he has been acquitted of the charge by the trial Court in the criminal case.

Briefly, the facts of the case, as made out in the petition, are that the petitioner was posted as Post Master at Village Gudha Branch of the respondent-department. The allegations against him were of mis-appropriation of money as the amount received by him from the depositors for depositing the same in their respective accounts in the post office was not deposited by him and some amount was also withdrawn by him from the accounts of the depositors without obtaining withdrawal request from them. An FIR was registered against the petitioner and thereafter, he faced trial before the Court and ultimately, he was acquitted of the charge vide judgment dated 27.10.2008 passed by the Additional Chief Judicial Magistrate, Karnal. The appeal against judgment of acquittal was also dismissed and the judgment of the trial Court was upheld.

During pendency of the case, a departmental inquiry was initiated against the petitioner and the allegations against him were proved. Hence, he was dismissed from service.

The case of the petitioner before this Court is that since, he has been acquitted of the charge by the trial Court and the allegations against him were not proved, he should be reinstated in service. A request has also been made to the respondent department to reinstate him with continuity of service.

Learned counsel for the petitioner submits that a specific finding was recorded by the trial Court to the effect that there was no evidence on the file that money was entrusted to the petitioner accused as it was stated in the statements of the depositors that the money was withdrawn with their consent. The depositors being the witnesses in the case did not support the case of the prosecution. Ultimately, the petitioner was acquitted of the charge by the trial Court. Learned counsel also submits that only because of the FIR, a charge sheet was issued and the petitioner was removed from service. The departmental proceedings were based on identical facts and evidence and both proceedings were common and on acquittal by the trial Court, the petitioner deserves to be reinstated in service.

Learned counsel for the petitioner has also relied upon the judgment of Hon''ble the Apex Court in case The Managing Director State Bank of Hyderabad and Another Vs. P. Kata Rao, as well as the judgment of this Court in case Khurshid Ahmad vs. State of Haryana and others 2009 (4) SCT 278, in support of his contentions.

Written statement on behalf of the respondents has been filed, which is on record.

A preliminary objection has been raised in the written statement that two proceedings i.e. criminal and departmental are entirely different. The degree of proof in criminal case is different from the degree of proof in departmental proceedings.

Learned counsel for the respondents submits that in the criminal case, the offence is to be proved beyond reasonable doubt, whereas, in the departmental proceedings, the preponderance of probability is to be seen.

Learned counsel for the respondents has relied upon the judgments of Hon''ble the Apex Court in cases Ajit Kumar Nag Vs. General Manager (P.J.), Indian Oil Corporation Ltd., Haldia and Others, as well as South Bengal State Transport Corpn. Vs. Swapan Kumar Mitra and Others, .

Heard the arguments of learned counsel for the parties and have also perused documents on the file.

Admittedly, the petitioner was charge sheeted in the departmental proceedings and also faced criminal trial before the Criminal Court. He was acquitted of the charge by the trial Court as the case of the prosecution was not supported by the witnesses. In the departmental proceedings, the petitioner was found guilty of charge of misappropriation and illegal withdrawal of amount of the depositors.

The present petition has been filed for issuance of direction to the respondents to reinstate the petitioner only on the ground that he has been acquitted of the charge by the trial Court and the allegations against him in the criminal case and the departmental proceedings were identical. He has also placed on record the copy of judgment passed by the trial Court to show that the allegations against the petitioner could not be proved as the depositors appeared as witnesses but did not make statement in support of the allegations. In the departmental proceedings, the petitioner was found to be involved and the allegations in the charge sheet were found to be proved, hence, his services were terminated.

Now the question for consideration before this Court is as to whether the petitioner is entitled for reinstatement on acquittal of charge by the trial Court in spite of the fact that he was found to be involved in the departmental proceedings initiated against him. It has been held in various judgments of this Court as well as judgments of Hon''ble the Apex Court that criminal proceedings and disciplinary proceedings can be continued simultaneously as both are altogether different. In disciplinary proceedings, the question is as to whether the employee is guilty of such conduct, whereas, in the criminal proceedings, it is to be established whether the offence is established or proved beyond reasonable doubt to convict or acquit the accused person of all charges. The standard of proof and mode of inquiry and the rules governing inquiry and trial are totally different. In the criminal trial, the offence is to be proved beyond the shadow of reasonable doubt but this doctrine is not applicable in case of departmental proceedings as has been held in case Lalit Popli Vs. Canara Bank and Others, , which is reproduced as under:-

It is fairly well settled that the approach and objective in criminal proceedings and the disciplinary proceedings are altogether distinct and different. In the disciplinary proceedings, the preliminary question is whether the employee is guilty of such conduct as would merit action against him: whereas in criminal proceedings the question is whether the offences registered against him are established and if established what sentence should be imposed upon him. The standard of proof, the mode of enquiry and the rules governing the enquiry and trial are conceptually different. [ State of Rajasthan Vs. B.K. Meena and others, ]. In case of disciplinary enquiry the technical rules of evidence have no application. The doctrine of "proof beyond doubt" has no application. Preponderance of probabilities and some material on record are necessary to arrive at the conclusion whether or not the delinquent has committed misconduct.

Similarly in Ajit Kumar Nag Vs. General Manager (P.J.), Indian Oil Corporation Ltd., Haldia and Others, , three Judges Bench has held as under:-

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 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 offender, the purpose of enquiry proceedings is to deal with the delinquent departmentally and to impose penalty in accordance with 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 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.

Hon''ble the Apex Court has held in Ajit Kumar Nag''s case (supra) as under:-

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 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 offender, the purpose of enquiry proceedings is to deal with the delinquent departmentally and to impose penalty in accordance with 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 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.

In the departmental inquiry, the entries in the passbook were found to be correct and withdrawal of the amount was also there but in spite of that, the depositor denied the payment. One depositor namely Sharda Devi has accepted to have received payment of withdrawal of Rs. 9,000/- dated 11.08.1998 from the petitioner and she has also accepted to have tendered the amount on different dates to the petitioner. The petitioner himself has also accepted to have received all payments from the depositor on various dates. Similarly, other entries and all charges were proved during inquiry and on the basis of inquiry report, the action was taken against the petitioner by removing him from service. The charged official could not prove himself innocent in the inquiry and hence, he was found guilty of violating Rules 133(2), 133(3) of Rules of Branch Post Office (viith Edition) and also Rule 17 of EDAs (C & S) Rules 1964.

The judgments relied upon by learned counsel for the petitioner have no relevancy to the facts of the present case.

There is allegation of misappropriation of amount by the petitioner and no leniency can be there in the matter of awarding punishment as it is a settled position of law that the departmental proceedings can be held simultaneously with the criminal proceedings and as such, the petitioner is not entitled for reinstatement.

Nothing has been shown from the record that there was any allegations of mala fide or the petitioner was not afforded any proper opportunity or the findings recorded by the Inquiry Officer were perverse or contrary to record.

In view of the facts and law position as mentioned above, there is no merit in the contention raised by learned counsel for the petitioner and the present petition, being devoid of any merit, is hereby dismissed.