Ram Kumar Chaudhary vs State of C.G. and Others

Satish K. Agnihotri, J.—By this petition, the petitioner seeks a writ to quash the impugned order dated 14.09.2002 (Annexure P-5), whereunder, the petitioner was removed from the service under the provisions of Rule 10(9) of the Chhattisgarh Civil Services (Classification, Control & Appeal) Rules, 1966 (for short "the Rules, 1996") and further, it was directed to deposit a sum of Rs. 18,111/- for loss of 180.440 kg of copper wire, and impugned order dated 28.04.2006 (Annexure P-6), whereunder, the appeal preferred by the petitioner was dismissed by the High Court. The facts, in brief, as stated by the petitioner are that the petitioner was working as Junior Naib Nazir in Civil Court, Baikunthpur, District Koriya from 26.07.1997 to 05.02.2001. In criminal case No. 58/1998, there was a direction to return the seized articles i.e. the copper wire of 270 kg to the accused persons namely Nasrudin and Ramesh Kumar Tamrakar. It was found that the copper wire returned was 180.400 kg. less out of 270 kg which was worth Rs. 18,111 /-. A departmental enquiry was initiated against the petitioner and a charge sheet was issued on April, 2001 alongwith articles of charges and list of witnesses. The petitioner submitted his reply on 02.05.2001 (Annexure P-3). The Civil Judge Class-11 Baikunthpur was appointed as Enquiry Officer. The enquiry report was submitted on 06.07.2002 (Annexure P-4) holding that the charge of not returning back the total copper wire of 270 kg and missing of 180.400 kg. was proved. It was further held that the petitioner was arrested at 1.8:40 O''clock on 06.02.2001 and remained in custody till 18:40 O''clock on 08.02.2011. Thus, he spent more than 48 hours in the custody. In the enquiry, it was further observed that for non-compliance of the provisions of Section 197 of Indian Penal Code by the police before arrest of the delinquent employee, the prosecution has failed to establish the case.

On receipt of the enquiry report, a second show cause notice was issued on 12.07.2008 to which the petitioner submitted his reply denying the charges. The Disciplinary Authority, after accepting the report and considering the reply of the petitioner to the show cause notice on the proposed punishment, passed the order of removal of services and further directed to deposit the sum of Rs. 18,111/- as the value of 180.400 kg copper wire, which was not returned to the above-stated persons by the petitioner. Thereagainst, an appeal was filed, which was also dismissed by order dated 28.04.2006 (Annexure P-6).

Shri Shukla, learned counsel appearing for the petitioner submits that for the above-stated loss of 180.400 kg from the total copper wire of 270 kg., a criminal case was registered against the petitioner u/s 409 of I.P.C. and the petitioner has been acquitted of the alleged charges by order dated 24.04.2010. It is further contended that the petitioner was acquitted from the charges on the same set of evidence and the facts and, as such, the removal order dated 14.09.2002 be quashed and the petitioner be reinstated in service.

It is also contended that the procedure as laid down for holding the enquiry is fully vitiated. The appeal has also been dismissed in a mechanical manner. Proper opportunity of defence has not been afforded to the petitioner. The petitioner did not know about the total weight of the copper wire, as the same was not weighed before it was deposited in the Nazarat. The petitioner has made serious allegation of personal grudge and malafide against the Enquiry Officer, which was also not examined and considered. The seized article was produced by the concerned Police Station after lapse of more than two years from the date of seizure. Thus, the quantity of copper wire was not reliable. It is also contended that the inquest of the article was not been produced in the departmental enquiry. The Reader, D.L. Dewangan, being the most relevant person, ought to have been examined in the enquiry proceeding. The same was not done and the two other witnesses were also not examined.

On the other hand, Shri Sanjay K. Agrawal, learned counsel appearing for the respondents No. 2 & 3 would submit that after registration of a criminal case in crime No. 294/2000 for the offence u/s 409 of I.P.C., the petitioner was arrested on 04.02.2011 and remained in custody up to 12.02.2001. The petitioner was served a proper charge sheet along with the list of documents and witnesses. The conduct of the petitioner, as alleged, comes within the definition of "misconduct". The Presenting Officer examined four witnesses and filed documents to prove the charges. The enquiry report was submitted after holding the proper enquiry with regard to missing of 180.400 kg. copper wire from the custody of the petitioner and it was found proved as the same was dully received by the petitioner and he failed to return the entire quantity. The petitioner was earlier punished in connection of missing of the file in civil suit No. 164-A/1991 by order dated 26.08.1997 withholding two increments with cumulative effect.

I have heard learned counsel appearing for the parties, perused the pleadings and documents appended thereto.

The enquiry. However the petitioner has failed to prove whether the allegation made before this Court, was ever raised either before the enquiry officer or before the disciplinary authority and also before the appellate authority. The petitioner has further failed to establish that any particular part of the enquiry, which was not based on proper evidence, was vitiated and perverse. The allegations of malafide, no opportunity of hearing, no examination of relevant persons are not supported by any documents or proof. If the Reader was not examined by the prosecution, the petitioner ought to have made sin application for examining the Reader, who after receiving the seized articles had handed over the same to the petitioner for keeping in Nazarat. The petitioner had not produced any documents, wherein, he had raised any objection, as aforesaid, in the enquiry proceeding. In all the replies submitted, pursuant to the show cause notice and also after second show cause notice proposing punishment, charges were denied by the petitioner. Since the seized articles was not weighed at the time of receipt of the same, it cannot be held that the weight of the seized article was not 270 kg. The petitioner has not produced anything in support of this contention. Thus, the enquiry cannot be vitiated being perverse.

The petitioner is a member of the judicial department, wherein, the degree of integrity and conduct required is of the highest nature. Edifice of the judiciary is based on trust and confidence of the people in administration of justice as well as in other connected works. The enquiry was initiated on the complaint of one of the persons, who was entitled to receive back the copper wire weighing 270 kg., as seized by the police and thereafter, handed over in the custody of the petitioner in Nazarat. After proper enquiry, it was found proved.

If all the officers/employees connected with administration of justice, do not possess highest degree of integrity and honesty in all their works, the faith of the people may be collapsed. The conduct of the petitioner must be such, which upholds the dignity of the judicial system.

In Francis Klein and Co. (P) Ltd. Vs. Their Workmen and Another, the Supreme Court observed as under:

In our view when an employer loses confidence in his employee particularly in respect of a person he is discharging an office of trust and confidence there can be no justification for directing his reinstatement....

In Commissioner of Police, New Delhi Vs. Narender Singh, the Supreme Court held as under:

It is not in dispute that the standard of proof required in recording a finding of conviction in a criminal case and in a departmental proceeding are distinct and different. Whereas in a criminal case, it is essential to prove a charge beyond all reasonable doubt, in a departmental proceeding preponderance of probability-would serve the purpose. (See Kamaladevi Agarwal v. State of W.B.)

It is now well settled by reason of a catena of decisions of this Court that if an employee has been acquitted of a criminal charge, the same by itself would not be a ground not to initiate a departmental proceeding against him or to drop the same in the event an order of acquittal is passed.

The Supreme Court in Management, Pandiyan Roadways Corp. Ltd. Vs. N. Balakrishnan, observed as under:

It will be useful to note that in State of Punjab v. Sukhwinder Singh this Court has held that the words "gravest act of misconduct" occurring in Rule 16.2(1) of the Punjab Police Rules need not be used in the order of punishment, as it can be found out from the factual matrix obtaining in each case.

However, there is another aspect of the matter which cannot be lost sight of. The respondent, in the meanwhile, has been acquitted. The factum of his acquittal has been taken into consideration by the Division Bench, which was considered to be an additional factor. Ordinarily, the question as to whether acquittal in a criminal case will be conclusive in regard to the order of punishment imposed upon the delinquent officer in a departmental proceeding is a matter which will again depend upon the fact situation involved in a given case.

There are evidently two lines of decisions of this Court operating in the field. One being the cases which would come within the purview of Capt. M. Paul Anthony v. Bharat Gold Mines Ltd. and G.M. Tank v. State of Gujarat. However, the second line of decisions show that an honourable acquittal in the criminal case, itself may not be held to be determinative in respect of order of punishment meted out to the delinquent officer, inter alia, when: (/) the order of acquittal has not been passed on the same set of facts or same set of evidence; (/ /) the effect of difference in the standard of proof in a criminal trial and disciplinary proceeding has not been considered (see Commr. of Police v. Narender Singh), or; where the delinquent officer was charged with something more than the subject-matter of the criminal case and/or covered by a decision of the civil (court (see G.M. Tank, Jasbir Singh v. Punjab & Sind Bank and Noida Entrepreneurs'' Assn. v. Noida, para 18).

In U.P. State Road Transport Corporation Vs. Suresh Chand Sharma, , held as under:

In Municipal Committee, Bahadurgarh v. Krishnan Behari this Court held as under: (SCC p. 715, para 4)

4.... In a case of such nature--indeed, in cases involving corruption-there cannot be any other punishment than dismissal. Any sympathy shown in such cases is totally uncalled for and opposed to public interest. The amount misappropriated may be small or large; it is the act of misappropriation that is relevant.

Similar view has been reiterated by this Court in Ruston & Hornsby (I) Ltd. v. T.B. Kadam, U.P. SRTC v. Basudeo Chaudhary, Janatha Bazar (South Kanara Central Coop. Wholesale Stores Ltd.) v. Sahakari Noukarara Sangha, Karnataka SRTC v. B.S. Hullikatti and Rajasthan SRTC v. Ghanshyam Sharma.

In NEKRTC v. H. Amaresh and U.P. SRTC v. Vinod Kumar this Court held that the punishment should always be proportionate to the gravity of the misconduct. However, in a case of corruption/ misappropriation, the only punishment is dismissal.

Thus, in view of the above, the contention raised on behalf of the employee that punishment of dismissal from service was disproportionate to the proved delinquency of the employee, is not worth acceptance.

The petitioner was acquitted in criminal case No. 522/2001 by the Judicial Magistrate First Class, Baikunthpur, on 24.04.2010, holding that the prosecution has failed to prove the case against the petitioner for an offence under provisions of section 409 of I.P.C. It is not established that the same set of witnesses were examined in the'' criminal Court. Trie case was registered for offence relating to criminal breach of trust by public servant.

In the instant case, the disciplinary enquiry was initiated for misconduct, as defined under provisions of Rules, 1996. The petitioner has also failed to produce any documents before this Court to indicate that the criminal case against the petitioner was on the same facts and also on the basis of same evidence, which was available before the criminal Court as well as before the Disciplinary Authority.

It has been held that in a criminal case, strict prove is required; however, in the disciplinary enquiry on the basis of probabilities also charges may be held as proved. Thus, the petitioner cannot take advantage of his acquittal from the criminal Court.

The Supreme Court in The Divisional Controller, KSRTC Vs. M.G. Vittal Rao, , after examining all the earlier decisions on this issue, held as under:

Thus, there can be no doubt regarding the settled legal proposition that as the standard of proof in both the proceedings is quite different, and the termination is not based on mere conviction of an employee in a criminal case, the acquittal of the employee in a criminal case cannot be the basis of taking away the effect of departmental proceedings. Nor can such an action of the department be termed as double jeopardy. The judgment of this Court in Capt. M. Paul Anthony does not lay down the law of universal application. Facts, charges and nature of evidence, etc. involved in an individual case would determine as to whether decision of acquittal would have any bearing on the findings recorded in the domestic enquiry.

Loss of confidence

Once the employer has lost the confidence in the employee and the bona fide loss of confidence is affirmed, the order of punishment must be considered to be immune from challenge, for the reason that discharging the office of trust and confidence requires absolute integrity, and in a case of loss of confidence, reinstatement cannot be directed. [Vide Air India Corpn. v. V.A. Rebellow, Francis Klein & Co. (P) Ltd. v. Workmen and BHEL v. M. Chandrasekhar Reddy.]

Reliance of the petitioner in Divl. Forest Officer, Kothagudem and Others Vs. Madhusudhan Rao, in support of his contention that the order passed in the appeal be quashed, as the same does not record any reasons, the Supreme Court observed as under:

It is no doubt also true that an appellate or revisional authority is not required to give detailed reasons for agreeing and confirming an order passed by the lower forum but, in our view, in the interests of justice, the delinquent officer is entitled to know at least \\he mind of the appellate or revisional authority in dismissing his appeal and/ or revision. It is true that no detailed reasons are required to be given, but some brief reasons should be indicated even in an order affirming the views of the lower forum.

In the case on hand, I have seen the records of the proceedings. Before the appellate order was passed, reasons have been recorded for agreeing and confirming the order passed by the Disciplinary Authority.

In G.M. Tank Vs. State of Gujarat and Another, wherein it has been held by the Supreme Court that if the facts and evidence in the department as well as criminal proceedings were the same without there being any iota of difference, the employee should succeed, is not applicable to the facts of the case on hand, as it has not been proved that the facts and the evidence were the same in the departmental enquiry as well as in the criminal proceedings. However, in G.M. Tank (supra) it was observed that Capt. M. Paul Anthony v. Bharat Gold Mines Ltd. (1999) 3 SCC 670] will apply, which was considered in Divisional Controller, Karnataka State Road Transport Corporation (supra) and it was held that the judgment in Capt. M. Paul Anthony (supra) does not lay down the law of universal application.

In The Managing Director State Bank of Hyderabad and Another Vs. P. Kata Rao, relied on by the petitioner, trie disciplinary authority and in criminal proceedings, the respondent was not guilty of charge of misappropriation. Thus, a direction was made to reconsider the case. It is not relevant to the facts of the present case.

The reliance of the petitioner on other cases i.e. Anoop Jaiswal Vs. Government of India and Another, , Jarnail Singh and Others Vs. State of Punjab and Others, Radhey Shyam Gupta Vs. U.P State Agro Industries Corporation Ltd. and Another, and the decision of this Court in Dhaluram Kosaria Vs. State of C.G. and Others, are on the compliance of principles of natural justice, as required under Article 311(2) of the Constitution of India. In the instant case, as aforestated, the petitioner has failed to establish that there was violation of principles of natural justice either in conduct of enquiry or before imposition of punishment.

For the reasons mentioned hereinabove and applying the well settled principles of law to the facts of the present case, it is found that the finding recorded by the enquiry officer, agreed by the disciplinary authority and thereafter imposition of punishment and further upheld by the appellate authority cannot be held as vitiated. The petitioner was found guilty of absolute integrity, devotion of duty and unbecoming of a Government servant, which is misconduct under the provisions of Rule 3 of the Chhattisgarh Civil Services (Conduct) Rules, 1965. As an upshot, the writ petition, being bereft of merit, is liable to be and is hereby dismissed, leaving the parties to bear their own costs.