The State of Haryana vs Om Parkash

R.S. Sarkaria, J.—The circumstances giving rise to this Regular Second Appeal No. 60 of 1968, are as follows:

The plaintiff-respondent was a clerk on the establishment of the Deputy Commissioner''s Office, Karnal. By an order dated 13th May, 1953, of the Deputy Commissioner, he was transferred as Registration Moharrir in the office of the Sub-Registrar at Panipat. In November, 1953, it was detected that the plaintiff was not depositing the various sums which he had received as registration fees, in time, in the Government Treasury, and was also charging less than the prescribed fee from persons presenting documents for registration. A preliminary enquiry was held. He was suspended from service on 26th December, 1953. On 3rd January, 1954, the Deputy Commissioner reported the matter to the police. Thereupon a case u/s 409, Indian Penal Code, was registered against the plaintiff at Police Station, Panipat. After investigation, the plaintiff was sent up for trial before Shri O.G. Adya, Magistrate 1st Class, Karnal, who convicted him for an offence u/s 409, Indian Penal Code, on 3rd January, 1955. On appeal, the plaintiff was, however, acquitted by the Sessions Judge by an order, dated 23rd March, 1955. The plaintiff then applied to the Deputy Commissioner for reinstatement on his previous post. His request was turned down by the Deputy Commissioner by an order dated 16th June, 1955. The Deputy Commissioner, however, instituted a departmental enquiry against the plaintiff in which he was charge-sheeted on 14th January, 1956. As a result of that enquiry, the Deputy Commissioner, by his order dated 8th May, 1957, dismissed the plaintiff from service. Against that order of the Deputy Commissioner, the plaintiff went up in appeal to the Commissioner who rejected the same on 7th January, 1P58 Plaintiff''s further revision petition to the Financial Commissioner was also dismissed.

On 30th March, 1962, the plaintiff instituted the suit for a declaration that the order dated 8th May, 1957, of the Deputy Commissioner, dismissing him from service, was illegal, ultra vires, and without jurisdiction, and that he was entitled to hold the post of a clerk in the office of the Deputy Commissioner, Karnal, with effect from 26th December, 1953, and to receive full remuneration, allowances and increments from that date. The Deputy Commissioner''s order, dated 8th May, 1957, was impugned mainly on the ground that after his acquittal by the Sessions Judge, the plaintiff could not be proceeded against department-ally on the same charges and the same facts which were the subject matter of the criminal trial.

The suit was resisted by the defendant (Punjab State). The suit was dismissed by the trial Court by a judgment, dated 17th January, 1964. The plaintiff preferred an appeal to the Senior Subordinate Judge, Karnal, who dismissed the appeal and affirmed the decree of the trial Court on 16th January, 1965. Plaintiff came up in second appeal to the High Court and also made an application under Order 6 Rule 17, Civil Procedure Code, (Civil Misc. No. 890 C of 1966) with a prayer that he should be allowed to amend the plaint and add a new ground of attack, namely, that at the material time (14th May, 1953 to 31st October. 1953), the plaintiff was working as Registration Moharrir, and consequently, he was under the disciplinary control of the Registrar and the Inspector-General of Registration, Punjab, by virtue of section 69 of the Indian Registration Act, and could be dismissed or removed from service only by the Registrar, in view of paragraph 33 of the Punjab Registration Manual with which the Registration Moharrirs were governed; that the Deputy Commissioner, as such, had no authority to dismiss the plaintiff, a Registration Moharrir, from service or to take any other disciplinary action against him; that in these circumstances the impugned order passed by the Deputy Commissioner was ultra vires and without jurisdiction; and that this wrong assumption of jurisdiction by the Deputy Commissioner misled the plaintiff in approaching the Commissioner and the Financial Commissioner although they had no jurisdiction to go into the matter. Thus the plaintiff was deprived of his valuable right of going in appeal to the Inspector General of Registration against the impugned order. The amendment was allowed and consequently the case remanded to the trial Court for fresh decision vide order dated 15th April, 1966 of P. D. Sharma J. passed in R. S. A. 466 of 1965.

In the written statement, the Punjab State traversing the allegations in the plaint, pleaded that the Sessions Judge had acquitted the plaintiff by giving him the benefit of doubt and that consequently the plaintiff was rightly charge-sheeted and dealt with departmentally. In reply to the new plea taken by the plaintiff after the amendment of the plaint, it was pleaded that at the material time, the plaintiff was a junior clerk on the establishment of Deputy Commissioner''s Office, and that he was paid by the Deputy Commissioner out of the General Head and not from the Registration Head.

After the remand, the trial Court framed these issues:

Whether the suit is maintainable in the present form.

Is the suit beyond limitation?

Whether the order of dismissal of the plaintiff is illegal, ultra vires and inoperative as alleged.

Whether the plaintiff was given due opportunity under Article 311(2) of the Constitution.

Did the plaintiff give a valid notice u/s 80 of the Code of Civil Procedure?

1-A (Additional Issue). Whether the order of the Deputy Commissioner, dated 8th May, 1957, is illegal, ultra vires and without jurisdiction for the reasons mentioned in the plaint Issues 1, 2, 4 and 5 were not seriously pressed in the trial Court, and, consequently, the Court decided issues 1, 2 and 5 against the defendant and issue No. 4 against the plaintiff. Issues 3 and 1-A were decided by the trial Court against the plaintiff and. in the result, his suit was dismissed the plaintiff again went up in appeal to the District Judge. The appeal was heard by Shri Sarup Chand Goyal, Additional District Judge, who allowed the appeal and decreed the plaintiff''s suit. Hence this second appeal by the defendant State.

The judgment of the learned Additional District Judge, mainly proceeds on two points:

(1) Once a Government servant is tried by a Court of law on a criminal charge and acquainted, irrespective of the fact that the acquittal was on the basis of benefit of doubt, he cannot be legally dealt with and punished departmentally on the same charges because such a course would be tantamount to circumvention of the decision of the Court, and, in consequence, shake the confidence of the public in the judiciary.

(2) Since at the material time the plaintiff was working as a Registration Moharir, he was, in view of paragraph 33 of the Punjab Registration Manual, 1929, under the disciplinary control of the Registrar who alone was competent under that paragraph to punish or dismiss the Registration Moharrirs. The Deputy Commissioner did not pass the impugned order in his capacity as Registrar but as Deputy Commissioner and had thus misled and prejudiced the plaintiff in going in appeal against that order to the Commissioner and the Financial Commissioner who had no jurisdiction in the matter. Thus the impugned order was passed by an authority, i.e., the Deputy Commissioner who had no jurisdiction in the matter, and for that reason, it was illegal and ultra vires.

Mr. Chetan Dass, Senior Deputy Advocate General for the appellant-State, contends that neither of the two grounds on which the judgment of the lower appellate Court is based, is tenable. As regards the first point, he has pointed out that there is nothing in Article 20 of the Constitution or in section 403, Criminal Procedure Code or in any other law or rule which prohibits the Government or its delegate from making a departmental enquiry against a Government servant on the same charges and facts on which he was tried and acquitted of a criminal offence by a Court of Law. In support of this argument, reference has been made to S.A. Venkataraman Vs. The Union of India (UOI) and Another, The Delhi Cloth and General Mills Ltd. Vs. Kushal Bhan, S. Pratap Singh Vs. The State of Punjab, , R.P. Kapur Vs. Union of India (UOI) and Another, , State of Andhra Pradesh Vs. Sree Rama Rao, State of Orissa Vs. Sailabehari Chatterji, Motising Chhagasing Vaghela Vs. S.D. Mehta, , K. Rangarajan and another v. State of Madras re presented by the Executive Engineer, Public Works Department, Canveri Division, Tenjore (1967) 1 M. L. J. 146, and Shaik Kasim Vs. The Superintendent of Post Offices, Chingleput Dn. and Another, , Dewan Chetan Dass has argued that for the purpose of disciplinary control a distinction has always been drawn between an honorable acquittal and acquittal based on the benefit of doubt. It is stressed that in the present case the learned Sessions Judge found that the evidence brought on record did not go beyond establishing a suspicion of the commission of criminal misappropriation, and the complained acts could well be the result of negligence or ignorance of the rules on the part of the Government servant. Mr. Dewan has also pointed out that the charges in the departmental enquiry which followed the prosecution, were not identical with the charge in the criminal prosecution. In the enquiry, additional charges and allegations were also made which per se did not amount to an offence. It is. therefore, maintained that the departmental enquiry and the impugned order which was the result of that enquiry, could not be dabbed as improper even on the principles of natural justice.

In reply, Mr. N.C. Jain has vehemently contended that an honorable acquittal is not known to the Code of Criminal Procedure. The only terms whereby an accused person is exonerated of a criminal charge known to the Code of Criminal Procedure are ''discharge'' and ''acquittal''. Once a person is prosecuted in the Court of law on a charge in respect of a criminal offence and is acquitted by the Court no matter on what grounds on principles of natural justice and fairplay, the departmental authorities are debarred from proceeding against him departmentally, substantially on the same charges and on the same facts and evidence. This principle, according to Mr. Jain, will apply with greater force to the facts of the present case because before setting the machinery of criminal law in motion, the Deputy Commissioner made a preliminary fact finding enquiry on the departmental side with a view to decide whether the plaintiff was to be dealt with departmentally or prosecuted for a criminal offence in a Court of law. The Deputy Commissioner decided to prosecute the plaintiff. He exercised his choice and followed one course, and, on failure of that prosecution, he could not be allowed to fall back upon the other alternative which he had once rejected.

In support of his contention, the learned counsel has referred to Jagmohan Lal v. The State of Punjab and others 1966 Cur L. J 807, The The Union of India Vs. Jayaram Damodhar Timiri, P. Ekambaram v. The General Manager, M. G. R. T. D., 1961 Mysore L J 1066. Shaik Kasim v. The Superintendent of Post Offices, Chingleput Dn. and another (supra), P. Ekambaram Ponnurangam v. General Manager and Competent Authority, Mysore Government Road Transport Department, A. I. R 1962 Mys 84, Union of India v. R. Akabr Sheriff, A I R. 1961 Mad. 486, Amin Lal v. The State of Punjab and others, 1965 Cu. L J. (P&H) 509 and Qamarali Wahid Ali Vs. State of Madhya Pradesh, . Mr. Jain has also attempted to distinguish the Supreme Court and other rulings cited by the learned counsel for the appellant-State.

The rules deduced from this mass of case law may be summed up as below:

(1) There is nothing in Article 20(2) of the Constitution, Section 403 of the Code of Criminal Procedure (or in the rules of service in this particular case), which would bar a departmental enquiry on the same facts on which the Government servant was acquitted of a criminal offence after trial by a Court of law or vice versa.

(2) Thus, where the criminal Court acquits the accused servant (a) by giving him the benefit of doubt, or (b) on a purely technical ground, such a lack of sanction or some other technical defect of procedure, and while recording the acquittal, does not exonerate the servant of all blame or misconduct, the administrative authority may institute a departmental enquiry on the same charges, and may conceivably punish him on the same facts. It can also punish him if the same facts constitute some lesser charge, which may not amount to a criminal offence, but may well amount to a great dereliction of duty, exposing the servant to disciplinary action. The reason is that the two proceedings, departmental and the criminal, are entirely different in nature and scope. They operate in different fields and have different objectives. The standard of proof necessary to record a conviction in a criminal trial is different from that which is required in a departmental enquiry against a delinquent servant.

(3) Where the Court recording the acquittal by its judgment on merits exonerates the Government servant of all blame or suspicion in respect of those allegations, then it may not be proper for the disciplinary authority to institute a departmental enquiry precisely into the same allegations, founded on the same facts, and punish the servant thereon. Such a course would offend against the rules of natural justice, which require that no one should be vexed twice for the same charge. No in flexible rule of the thumb can be laid down. It will be a question of fact to be determined in each case, whether or not it is proper to start a departmental enquiry substantially with regard to the same facts on which the delinquent servant was tried and acquitted by the Court of a criminal offence.

The above being the law on the point, I now pass on to apply it to the facts of the present case. Firstly, there is nothing in the Rules of Service governing the Government servant, which would bar a departmental enquiry on the same facts on which he was acquitted of a criminal charge by a Court of law. Secondly, in the present case, the delinquent servant was convicted by the trial Magistrate; he was acquitted on appeal by the Sessions Judge by according him the benefit of doubt, only. He was not exonerated of all blame. This will be clear from the following observations of the learned Sessions Judge:

There is no doubt that some of the amounts, the details of which are already given in the earlier part of the judgment, were not deposited in the Treasury, strictly according to the roles laid down, but from this fact alone, we cannot say that the amounts were criminally misappropriated by the appellant. The various amounts which came to Rs. 403/- and Rs. 67/1/- were retained by the appellant a little longer

Proof of receipt and failure to account is naturally a long way towards proof of misappropriation, but it is not the whole way

No doubt the appellant has committed some procedural irregularities, but those irregularities cannot be said to be conclusive against the appellant to hold him criminally liable

He is therefore, given the benefit of doubt and acquitted.

Rule 2, set out above, will, therefore, apply to the facts of the present case.

Thirdly, the charges at the departmental enquiry which followed were not identical with the criminal charges on which he was prosecuted in Court. The criminal charge framed by the Magistrate against the servant was as follows:

That you, on or about or between 17th July, 1953 to 1st October 1953 at Panipat committed criminal breach of trust in respect of Rs. 403/- realised by you on account of registration fee, in your capacity as registration Moharrir, a public servant having been entrusted with this money and having dominion over the said money; and thereby committed an offence punishable u/s 409 of the Indian Penal Code, and within my cognizance.

Secondly, that you, on or about the period between 12th June, 1953 to September, 1953 at Panipat committed breach of trust with respect to Rs. 67/8/- received by you as copying fee in your capacity as Moharrir Registration, a public servant being in such capacity entrusted with this money or dominion over this money, and thereby committed an offence punishable u/s 409 of the Indian Penal Code, and within my cognizance.

O.G. ADYA,

Dated 2nd September, 1954. Magistrate 1st Class, Karnal.

The changes framed against the delinquent at the departmental enquiry read as follows:

That while working as Registration Moharrir in Panipat tahsil office, you were found to have committed the following irregularities.

RECEIPT BOOK A.

(1) The under-noted list showing the amounts were realized on the dates specified against them but money was not credited into the Government Treasury promptly and was actually deposited as noted down in column No. 4 and in certain cases the amounts were credited with permission after it came to knowledge that misappropriation had been committed:

Document number

Amount of registration fee

Date of realization

Date of deposit

1

2

3

4

(List omitted-Editor)

Scrutiny of the following cases shows that at the time of registration of the documents less fee was charged:

No. of Document.

Actual fee-payable.

Fee realized.

211

Rs. 5-0-0

Rs. 3-12-0

268

Rs. 21-14-0

Rs. 21-4-0

276

Rs. 31-4-0

Rs. 30-4-0

304

Rs. 46-4-0

Rs. 46-6-0

324

Rs. 46-4-0

Rs. 45-4-0

(3) On 3rd August, 1953 a fee of Rs. 2/8- was realized for registration fee on document No. 282, but only Rs. 2/- have been credited to the Government treasury. Thus you embezzled a sum of annas eight.

(4) On 1st September, 1953 you realized Rs. 7- for registration and copying fee of document No. 24 in book No. IV, but this amount was not credited to the Government treasury under any head until the 27th October, 1953, when the accounts were being checked by Shri K.K. Kalia, Resident Magistrate, Panipat. This amount of Rs. 7/- was deposited by you without previous permission of the Sub-Registrar or any other competent officer.

(5) Receipts Nos. 37 dated 16th May, 1953. 60, 61 and 62 dated the 29th June, 1953 were found to have been cancelled, but they did not bear the signature of the Sub-Registrar.

(6) A large number of receipts are without the signature of the registering authority. The receipts do not contain the serial number of documents, as for instance, serial No. 229 is followed by serial No. 227 and 225. Similarly serial No. receipt 270 for the registration of a document is followed by 269.

(7) 364 documents of book No. 1 had been registered upto 20th October, 1953 but only 351 were copied in the book. 13 documents remained uncopied until the inspection by Shri K.R. Kalia, Resident Magistrate, Panipat.

(8) Document No. 193 was registered on 30th May, 1953, but its registration fee was deposited on 20th April, 1953.

(9) Column No. 20 of fee book, which was required to be signed by the Sub-Registrar, every day, does not bear his signatures on the following dates : -

19th and 20th May, 1st, 10th, 13th 22nd, 24th, 25th, 26th, 27th, 29th, and 30th June, 7th, 10th, 13th, 14th, 16th, 17th, 18th, 20th, 22nd, 23rd, 27th, 29th 30th July, 3rd, 6th, 11th, and 30th August, 1st, 15th 16th, 17th, 19th, 28th, 29th, September, 9th and 12th October, 1953.

RECEIPT BOOK B

(10) Application of Chhotu Ram s/o Sheo Ram resident of Babail showed that copying fee of Rs. 1/12/- was recovered and deposited in the Government Treasury, but no receipt was issued to him.

(11) In the following cases the copying fees had been deposited twice, which evidently shows that you had been doing your work in a most slip shod manner without knowing your accounts and duties:

Name of applicant.

Amount.

Receipt number of with date of. first deposit

Receipt number with date

second deposit,

1

2

3

4

Nihal Singh s/o Amar Singh of JorasiKhalsa.

Rs. 6-0-0

Not issued 19.6.1953

63,12/10/53

Qabaz s/o Latoor village Naraina.

Rs 2-0-0

Not issued 27 6 1953

43/12/10/53

Harphool s/o Harnam village Shera.

Rs. 2-0-0

Not issued 23.7.1953

46/12/10/53

HarSarup s/o Bishambar Das, Panipat.

Rs. 3-0-0

Not issued 13.6.1953

38/12/10/53

-do-

Rs. 2-4-0

-do-

39/l2/10/53

(12) The under-mentioned list of receipts shows the amount, date of realization and date of deposit. All the receipts are without the signatures of the registering authority. The receipts are not date wise:

* * *

(List omitted- Editor)

(13) Orders written on applications of receipt B. No. 38,41,42, 50,61 and 62 have not been signed by the Sub-Registrar.

(14) Application of receipt B 39 is without any order.

(15) Copies in all cases mentioned at serial Nos. (13) and (14) above have been supplied to the applicants.

(16) Statements Nos. I, II, and III were not prepared upto the inspection of Shri K.R. Kalia, Resident Magistrate, and counterfoil receipts had not been pasted.

(17) No registration memorandum had been sent to the Tehsildar for necessary action until the inspection by Shri K.R, Kalia.

You should show cause within a fortnight of the receipt of this charge sheet why any one or more of the penalties specified in rule 4 of the Punjab Civil Services (Punishment and Appeal) Rules, 1952, be not imposed on you.

Dated 14th January, 1956.

Sd/- J.N. Thadani, Deputy Commissioner, Karnal

Except charges 1 and 12, the rest of the charges framed against the delinquent in the departmental enquiry were different from those for which he was prosecuted in Court. Charges 1,2,4,5,6,7,9,11,12 and 13 were found by the Enquiry Officer to have been established. Under charge No. 1, it was held that the servant had committed material irregularities in breach of the rules, according to which he was required to deposit the various sums received by him on the same day or at the most on the following day. He was thus found to have committed serious irregularities in breach of the rules. He was also found guilty of negligence in the performance of his official duties. The evidence produced at the enquiry was something more than that adduced at the criminal trial It may be noted, as already observed, that even the learned Sessions Judge found that the servant was guilty of committing irregularities He did not rule out departmental action in respect of that misconduct, though he said that it was doubtful whether those irregularities amounted to a criminal offence.

It is thus to be seen that the Government servant was not exonerated of all blame or suspicion in the criminal trial in respect of the allegations made against him. Nor did the departmental enquiry proceed into the same allegations founded on the same facts and allegations. The prohibitory Rule No 3, stated above, therefore, is not attracted in this case. The lower appellate Court was clearly in the wrong when it propounded the thesis that once a Government servant is tried by a Court of law on a criminal charge and acquitted, he cannot, in any circumstances, be legally dealt with and punished departmentally on the same or similar charges

This takes me to the second point on which the judgment of the Court below is based. In this connection, it may be noted that originally, the plaintiff''s claim was not based on this ground. This plea has been introduced for the first time by means of an amendment at a very late stage. It is not disputed that though the appellant was working as a Registration Moharrir, he was an employee of the Deputy Commissioner''s establishment. Article 311 of the Constitution says that a Government servant cannot be dismissed or removed from service by an authority inferior to the one by which he was appointed. It is not the case of the appellant that the Deputy Commissioner could not under, the rules appoint or remove from service the clerks on his establishment. It is nobody''s case that there has been a breach of the mandatory provisions of Article 311. The only grouse of the plaintiff-respondent is, that as Registration Moharrir he was subject to the disciplinary control of the Registrar, who alone was competent under paragraph 33 of the Punjab Registration Manual, 1929, to punish or dismiss Registration Moharrirs as a disciplinary measure. Since the impugned order was passed by the Deputy Commissioner as such, it was without jurisdiction

In this connection, it may be noted that in the suit, the plaintiff claims a declaration that the order dated 8th May, 1957 of the Deputy Commissioner, Karnal, is illegal and that the plaintiff is entitled to the post of the clerk in the office of the Deputy Commissioner, Kannal, with effect from 26th December, 1953, and the remunerations, increments and allowances to that post. He impliedly admitted that he was appointed by the Deputy Commissioner as a clerk on his establishment. For the time material to this case, he was, according to the allegations in the plaint, working as Registration Moharrir in the Tehsil office at Panipat. In other words, at all times material to this case, he continued to be borne on the establishment of the Deputy Commissioner, though he was assigned the duties of Registration Moharrir for the period 14th May, 1953 to 31st October 1953, to which period the various charges relate. The plaintiff had thus a dual capacity; on the one hand his permanent lien was on the post of a clerk in the office of the Deputy Commissioner, and on the other he was working as a Registration Moharrir in the office of the Tehsildar-cum-Sub-Registrar.

Para 1 of Chapter I of the Punjab Registration Manual, 1929, says that u/s 6 of the Indian Registration Act, 1908, all permanent appointments to the office of the Registrar, Sub-Registrar, or Joint Sub-Registrar, are made by the State Government. In some cases, the persons appointed are public officers who perform registration duties by virtue of their office in addition to their other duties; in other cases persons specially selected are nominated to the office. Para 2 in the same Chapter further reveals that the Deputy Commissioner in administrative charge of the district for the time being shall be ex-officio Registrar of each district. The same para further shows that Naib-Tehsildars or other civil Officers above the rank of Naib-Tehsildar may also be appointed as ex-officio Sub-Registrars or Joint Sub-Registrars. It is common ground in this case that the Deputy Commissioner, who passed the impugned order, and the Sub-Registrar, in whose office the plaintiff was working as Registration Moharrir at the material time, were ex-officio Registrar and a Sub-Registrar in this district. That is to say, the Deputy Commissioner had a dual capacity. As Deputy Commissioner he had full disciplinary control over all members of his establishment, whether working in his own office at the headquarters or in an office subordinate to him in that district.

Thus the position boils down to this : The plaintiff was appointed a clerk on the establishment of the Deputy Commissioner by the latter, but he was presumably assigned the duties of the Registration Moharrir by the Deputy Commissioner in the exercise of his powers under para 33 of the Punjab Registration Manual as exoificio Registrar of the District. He could be removed form the cadre of the Deputy Commissioner''s establishment, only by the Deputy Commissioner and from the Job of Registration Moharrir, by the same person as ex-offico Registrar of the district. The two offices of the Deputy Commissioner and the Registrar were combined in the same person. Since the plaintiff was subject to the dual disciplinary control of the Deputy Commissioner-cum-Registrar, it cannot be said that the Deputy Commissioner, in holding the disciplinary enquiry and passing the impugned order of dismissing the plaintiff from a post on his establishment acted without jurisdiction. All that can be said is, that in holding that enquiry and making the impugned order, he should have described himself as Deputy Commissioner and ex-officio Registrar of the district. His failure to indicate his dual designation was thus merely a defect of form, which did not affect the validity of his order. The plaintiff''s case is, as observed already, that he should be restored to the post of a clerk on the establishment of the Deputy Commissioner, meaning thereby that his substantive appointment was on the establishment of the Deputy Commissioner''s office.

For all the reasons aforesaid, I would reverse the findings of the learned Additional District Judge on both the points, indicated above, allow the defendant''s appeal, and dismiss the plaintiff''s suit, leaving the parties to their own costs throughout.