Heard Mr. A.R. Khan, learned counsel for petitioner as well as Mr. Lalit Shukla, learned counsel for respondent-Bank and perused the records.
The writ petition has been filed challenging the orders dated 29.12.2003, 08.10.1997, 23.03.1988, 08.04.1986 and 16.12.1986 as contained in Annexure Nos. 1, 2, 3, 4 and 5.
As per brief facts of the case, petitioner was placed under suspension on 08.04.1986 on the alleged misconduct of committing forgery and getting certain amount taken out from bank account of Smt. Saroj in connivance with his brother Ramji Mishra. F.I.R. was lodged against accused-persons. The Regional Manager of the respondent-bank had taken decision to hold disciplinary proceedings in this regard against the petitioner and a charge-sheet was issued to petitioner. The disciplinary proceedings were held and a show cause notice dated 09.02.1987 was issued to petitioner and after submission of reply punishment order of dismissal from service dated 16.02.1987 was passed. The departmental appeal preferred by petitioner was also rejected.
As per petitioner, in the criminal case, petitioner was acquitted from alleged offence under Sections 467, 471, 420 and 477 IPC vide order dated 07.04.1993. The revision preferred against the said order was dismissed by the High Court vide order dated 26.4.2002. Petitioner feeling aggrieved against the punishment order had approached the Industrial Tribunal wherein the claim of petitioner was dismissed vide order dated 08.10.1997. Thereafter, the petitioner had made an application for recall of order, however, the said application was also rejected vide impugned order dated 29.12.2003.
Learned counsel for petitioner submits that the disciplinary proceedings and the criminal proceedings initiated against the petitioner were on the same charges, as such, once the petitioner has been acquitted in the criminal case, the punishment order on the basis of disciplinary proceedings was bad and not sustainable in the eyes of law. Learned Tribunal has failed to appreciate that the disciplinary proceedings were initiated on the same charge on which criminal case was filed and in the criminal case petitioner has been acquitted and the revision preferred against the said order has also been dismissed by the High Court. The order rejecting the claim of petitioner as such was bad and was required to be recalled, on the application moved by petitioner in this regard.
It is submitted by Mr. A.R. Khan, learned counsel for petitioner that the Tribunal has full power to recall its order in case there was apparent error in the order and it cannot be said that the Tribunal had become functuous officio after expiry of 30 days from the date of publication of the award.
In support of his arguments, learned counsel for petitioner relies on an unreported judgment dated 10.7.2008 of this Court in the case of M/s Hindustan Steel Industries vs. Presiding Officer, Industrial Tribunal-II, U.P., Lucknow and others; Writ Petition No. 3285 (MS) of 2008 whereby the Court has set aside the ex-parte award and directed the Tribunal to restore the claim and proceed to decide the same within four months after providing opportunity of hearing to the parties concerned.
So far as the contention that departmental proceedings in case initiated on the same charges, they shall not be allowed to continue simultaneously and in case petitioner has been acquitted in criminal trial, the dismissal of employee on the same charge is bad, learned counsel for petitioner relies on the following judgments:
(i) Capt. M. Paul Anthony Vs. Bharat Gold Mines Ltd. and another; (1999) 3 SCC 679;
(ii) Union of India and others Vs. Jaipal Singh; (2004) 1 SCC 121; and
(iii) G.M. Tank Vs. State of Gujrat and others; (2006) 5 SCC 446.
Mr. Lalit Shukla, learned counsel for respondent, on the other side, submits that the judgment passed by learned Tribunal is just and proper. There is no infirmity or illegality. The Tribunal has rightly come to conclusion that the application for recall was misconceived as it was not an ex-parte award.
Submission is that petitioner was heard and given full opportunity to prove his point in the Tribunal. The Tribunal had considered the contention raised in the claim petition and had come to conclusion that it is liable to be dismissed as it lacks merit.
It is further submitted that so far as contention that petitioner was acquitted in criminal case, and therefore, the punishment awarded on the basis of same charge on which criminal case was filed is bad, petitioner was not acquitted in the criminal case and in fact he was discharged. There is difference between discharge and acquittal. The criminal court has discharged the petitioner after coming to conclusion that there is not sufficient evidence on record to show that petitioner had committed said offence, as such, it cannot be said that the petitioner was acquitted of the said charges on which disciplinary proceedings were held and punishment was awarded. In any case, the disciplinary proceedings and criminal proceedings are altogether different. In the disciplinary proceedings, delinquent employee is charged of misconduct whereas in the criminal case the accused is charged of an offence committed by him/her and in both the proceedings different considerations and evidence are required to prove the charges.
It is submitted that learned Tribunal has held that there is nothing on record to substantiate that the workman was charged for similar offence of the same date by the management and was also put to trial by the competent court of law (criminal court) on the basis of F.I.R. lodged against the workman and the charge-sheet filed by the police.
In support of his submissions, learned counsel for respondents relies on the judgment of the Apex Court in the case of Samar Bahadur Singh Vs. State of Uttar Pradesh and others; (2011) 9 SCC 94, particularly paragraph 7, which on reproduction reads as under:
"7. Acquittal in the criminal case shall have no bearing or relevance to the facts of the departmental proceedings as the standard of proof in both the cases are totally different. In a criminal case, the prosecution has to prove the criminal case beyond all reasonable doubt whereas in a departmental proceedings, the department has to prove only preponderance of probabilities. In the present case, we find that the department has been able to prove the case on the standard of preponderance of probabilities. Therefore, the submissions of the counsel appearing for the appellant are found to be without any merit."
It is submitted that relying on the aforesaid judgment and several other judgments on the point, this Court in the case of Ram Swaroop Rathaur Vs. Chairman Hardoi Unnao Gramin Bank; Writ Petition No. 2318 (SS) of 2008 vide judgment and order dated 08.10.2012 concluded that in the departmental proceedings charges are to be proved on the basis of preponderance of probabilities and strict rules of evidence are not applicable in the departmental proceedings whereas the criminal case is totally based on rule of evidence and in case a person is acquitted due to lack of sufficient evidence, it does not mean that the departmental proceedings are bad or cannot be held.
Learned counsel for respondent in this regard relies on the judgment of the Apex Court in the case of Nelson Motis vs. Union of India and another; AIR 1992 SC 1981, particularly paragraph 5, which on reproduction reads as under:
"5. So far as the first point is concerned, namely whether the disciplinary proceedings could have been continued in the face of the acquittal of the appellant in the criminal case, the plea has no substance whatsoever and does not merit a detailed consideration. The nature and scope of a criminal case are very different from those of a departmental disciplinary proceeding and an order of acquittal, therefore, cannot conclude the departmental proceeding. Besides, the Tribunal has pointed out that the acts which led to the initiation of the departmental disciplinary proceeding were not exactly the same which were the subject matter of the criminal case."
I have considered the submissions made by the parties' counsel and gone through the record.
Perusal of impugned order dated 29.12.2003 clearly indicates that learned Tribunal while coming to conclusion that the enquiry conducted by the management was held in a fair and proper manner against the workman (petitioner) had fixed the date to consider whether quantum of punishment awarded was just and proper, petitioner, in fact, had sought two adjournments on the date fixed to consider the quantum of punishment awarded to petitioner. The Tribunal, therefore, had proceeded to pass the award. Thus, it cannot be said that the award was passed ex-parte against the workman (petitioner).
Learned counsel for petitioner has not disputed the aforesaid facts, as such, I am of the view that it cannot be said that learned Tribunal had passed an ex-parte award against the petitioner and the application of recall was maintainable.
So far as the judgment cited by learned counsel for petitioner in the case of M/s Hindustan Steel Industries (supra) is concerned, in that case the Court had come to conclusion that the period of limitation should be counted from the date of knowledge and not from the date of publication of award, in case award has been passed ex-parte. However, that is not the position in the present case. There is no dispute to the legal proposition that in case there is any error apparent on the face of record, the Court has power to recall its order. However, since I have come to conclusion that learned Tribunal has rightly held that it was not an ex-parte award, therefore, application was required to be moved within a period of 30 days after publication of the award, however, it was not done.
So far as the contention of learned counsel for petitioner that since the petitioner was acquitted by the criminal court which relates to the same charge on which disciplinary proceedings were drawn against petitioner and punishment of dismissal from service was passed as such the same was not sustainable in the eyes of law is concerned, first of all it is to be noted that petitioner was not acquitted in a criminal court after framing of charges. In fact, he was discharged due to lack of sufficient evidence before framing of charges. There is difference between acquittal and discharge. Petitioner was not put to trial and he was merely discharged before the trial could commence.
Perusal of High Court order dated 26.4.2002 passed in Criminal Revision No. 179 of 1993 clearly indicates that petitioner was discharged of the offences punishable under Sections 420, 467, 471 and 477 IPC on the ground that there was no evidence available against him to frame a charge, as such, it is wrong to say that petitioner was acquitted of the alleged charge on which disciplinary proceedings were held.
In the case of Ram Swaroop Rathaur (supra), the Court has held that the contention that departmental proceedings could not continue is wholly misconceived. In the departmental proceedings, charges are to be proved on the basis of preponderance of probabilities and strict rules of evidence are not applicable. The relevant paragraphs of the said judgment on reproduction read as under:
"The claim of the petitioner that the departmental proceedings cannot continue is wholly misconceived. In the departmental proceedings, charges are to be proved on the basis of preponderance of probabilities and strict rules of evidence are not applicable in the departmental proceedings.
The charge against the petitioner is of financial bungling, therefore, the suspension order cannot be allowed to be quashed. The apex court in the case of Samar Bahadur Singh (supra) has also held that the departmental enquiry can go on, though the person has been acquitted in a criminal case.
The writ petition has no merit. It is accordingly dismissed."
In any case, the legal position as to whether acquittal in a criminal case shall have any bearing or relevance to the departmental proceedings has been set at rest by the Apex Court in the case of Samar Bahadur Singh (supra) wherein it has been held that acquittal in the criminal case shall have no bearing or relevance to the facts of the departmental proceedings as the standard of proof in both the cases are totally different. Relevant paragraph 7, 8 and 9 on reproduction read as under:
"7. Acquittal in the criminal case shall have no bearing or relevance to the facts of the departmental proceedings as the standard of proof in both the cases are totally different. In a criminal case, the prosecution has to prove the criminal case beyond all reasonable doubt whereas in a departmental proceedings, the department has to prove only preponderance of probabilities. In the present case, we find that the department has been able to prove the case on the standard of preponderance of probabilities. Therefore, the submissions of the counsel appearing for the appellant are found to be without any merit.
8. Now, the issue is whether punishment awarded to the appellant is disproportionate to the offence alleged. The appellant belongs to a disciplinary force and the members of such a force is required to maintain discipline and to act in a befitting manner in public. Instead of that, he was found under the influence of liquor and then indulged himself in an offence. Be that as it may, we are not inclined to interfere with the satisfaction arrived at by the disciplinary authority that in the present case punishment of dismissal from service is called for. The punishment awarded, in our considered opinion, cannot be said to be shocking to our conscience and, therefore, the aforesaid punishment awarded does not call for any interference.
9. In that view of the matter, we find no merit in this appeal, which is dismissed, but leaving the parties to bear their own costs."
In view of above, I am of the view that there was no merit in the contention raised by the petitioner in the recall application and the same was rightly rejected by learned Tribunal.
It is also to be concluded that there was no infirmity or illegality in the judgment and award passed by the Tribunal and it does not require any interference.
The writ petition as such having no merit is dismissed.
[Justice Ritu Raj Awasthi] Order Date :- 23.4.2014 Santosh/-