Hon'ble Pankaj Mithal,J.
Union of India through Secretary, Ministry of Communication, Director of Postal Services, Kanpur Region, Kanpur and Senior Superintendent of Post Offices, Fatehpur have jointly filed this writ petition against the order of Central Administrative Tribunal, Allahabad dated 8.8.2005 allowing Original Application No.1536 of 2001 of respondent No.1 and directing for his re-instatement in service after setting aside the order 26.10.1995 dismissing him from service as also the appellate and revisional orders thereof.
Respondent No.1 was working as a Post Master at Bhurkhan Post Office, Fatehpur. A disciplinary enquiry was initiated against him and he was charge sheeted on 29.12.1994. He submitted his reply on 1.3.1995 and the enquiry report was filed on 18.9.1995. The disciplinary authority issued a show-cause notice dated 22.9.1998 enclosing the enquiry report. Respondent No.1 denied receiving the show cause notice. However, an order of dismissal from service was passed against him on 26.10.1995. Against the said order he preferred a departmental appeal which was dismissed on 3.11.1999 and revision thereto also came to be dismissed on 8.2.2001.
On the same allegations/charges respondent No.1 was also prosecuted under Section 419/420/467/468 and 318 IPC in case crime No.12 of 1995 registered as Crime Case No.2187 of 1995 State Vs. Avnindra Kumar. The said trial ended into his acquittal vide judgment and order dated 12.5.1999. It is said that the said acquittal became final and conclusive.
Aggrieved by his dismissal from service and the decision of the appellate and revisional authorities respondent No.1 filed Original Application No.1536 of 2001 before the Central Administrative Tribunal.
The Tribunal by the impugned order dated 8.8.2005 allowed the application and quashed the orders 26.10.1995, 3.11.2009 and 8.2.2010 passed by the disciplinary, appellate and the revisional authorities, respectively. At the same time, respondent No.1 was directed to be reinstated in service within six months and to be paid entire up to date arrears and allowances admissible to him The Tribunal held that the order of punishment passed against the petitioner stands vitiated in law for non-supply of the enquiry report as the show-cause notice was returned undelivered. It further held that as the criminal trial had resulted in honourable acquittal of the petitioner the order of punishment on the same charges cannot be sustained.
We have heard Sri Rakesh Sinha, learned counsel for Union of India and Sri K.P.Agarwal, Senior Counsel assisted by Ms. Ghazlala Bano Quadri, learned counsel for respondent No.1.
Sri Sinha has submitted that respondent No.1 deliberately avoided receiving of show cause notice and, as such, he cannot say that he was not accorded proper opportunity to defend himself for want of supply of the enquiry report. Secondly, the departmental proceedings and the criminal trial are independent to one another and mere acquittal of respondent No.1 in the criminal trial would not necessarily affect the outcome of the disciplinary proceedings.
In reply, the submission of Sri Agarwal is that respondent No.1 was not actually served with the copy of the enquiry report. Therefore, the order of punishment is ex-parte and is in violation of the principles of natural justice. He further submits that when respondent No.1 had been acquitted in criminal case involving the same incident, and this fact was brought to the notice of the appellate and revisional authorities it ought to have been considered and due weightage should have been given to it. He however, accepts that criminal proceedings and departmental proceedings can continue simultaneously but submits that it was incumbent upon the tribunal to have considered the impact of the acquittal of respondent No.1 in the criminal case.
In connection with the second submission both the parties have relied upon certain authorities.
In view of Union of India Vs. Mohd. Ramzan Khan AIR 1991 SC 471: (1991) 1 SCC 588 there is no two opinion that a delinquent employee is entitled to a copy of the enquiry report.
In the instant case, respondent No.1 had participated in the enquiry and had filed his reply to the charges on 1.3.1995 whereupon an inquiry report dated 18.9.1995 was submitted. A show cause notice dated 22.9.1998 was sent to the petitioner by registered post along with the copy of the enquiry report. The said notice was not actually served upon respondent No.1. A photocopy of the envelope of the aforesaid registered post has been enclosed as Annexure - 4 to the writ petition. It shows that it could not be served upon the respondent No.1 on 23.9.1995 and 25.9.1995 as he was reported to have gone out. However, the subsequent endorsement records that he refused to accept the said notice and the refusal was recorded on 26.9.1995 in the presence of a witness Ram Shanker.
It was not that only one attempt was made to serve the notice upon respondent No.1.
In view of such refusal the aforesaid notice shall be deemed to have been served upon respondent No.1 as per the provisions of Section 27 of the General Clauses Act. Accordingly, when the notice is deemed to have been served upon respondent No.1 by refusal, he cannot be permitted to allege that he was denied opportunity of hearing by non-supply of the enquiry report. Respondent No.1 refused to take the notice at his own risk for which no one, except him can be blamed. Even the rule audi alteram partem does not require that the authority is bound to give an opportunity to be heard even when the party does not want it and is prepared to waive it. The principle of waiver is fully applicable to such a situation when the party has refused service of the show cause notice.
The Tribunal, as such, manifestly erred in holding that the order of punishment stands vitiated for non-supply of the enquiry report.
In respect of the second submission, a three Judges Bench of the Supreme Court as far back as in the year 1992 in the case of Nelson Motis Vs. Union of India and another JT 1992 (5) SC 511 held that the nature and scope of criminal case is different from that of departmental disciplinary proceedings and order of acquittal in a criminal case would not bring to an end the departmental proceedings. In the aforesaid case the Supreme Court has held as under:
"So far the first point is concerned, namely whether the disciplinary proceeding 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."
It leaves no doubt that criminal proceedings and departmental proceedings are independent to one another and operate in different fields. The standard of proof required in a criminal case is quite different than the degree of proof required to be established in a department proceedings. In a criminal trial the charge has to be proved beyond reasonable doubt whereas in a department proceedings even preponderance of the probabilities is sufficient to indict the employee.
It may be noted that as the standard of proof in a criminal case and in a departmental enquiry vary, the decision of a criminal case would not necessarily be binding upon the departmental proceedings though it may carry weight. One of the reasons for it is that the provisions of the Evidence Act which are applicable to criminal trials for the purposes of proving guilt of the accused are not applicable to departmental proceedings vide JT 2006(4) SC 328 Commissioner of Police, New Delhi Vs. Narender Singh.
In B.C. Chaturvedi Vs. Union of India and others JT 1995 (8) SC 65 it has been laid down that in a departmental proceeding neither the technical rules of Evidence Act nor strict proof of fact are applicable.
The decision in the case of Nelson Motis (supra) was followed by the Supreme Court in the case of South Bengal State Transport Corporation Vs. Swapan Kumar Mitra and others JT 2006(2) SC 307 and it was held that in a criminal case the charge has to be proved beyond reasonable doubt while in the departmental proceedings the standard of proof is mere preponderance of probabilities. Therefore, inspite of acquittal in the criminal case an order of dismissal emanating from departmental proceedings can very well be passed.
The Supreme Court in the case of General Manager, UCO Bank and another Vs. M. Venu Ranganath (2007) 13 SCC 251 held that acquittal of an employee in a criminal trial is no embargo on his being departmentally proceeded with as the two operate in different fields.
The same principle was reiterated by the Supreme Court in the State of Punjab and others Vs. Prem Sarup (2008) 12 SCC 522 and it was observed that that there is no bar in initiation of disciplinary proceedings against an employee after he has been acquitted in a criminal case.
In (2009) 9 SCC 24 Southern Railway Officers Association Vs. Union of India the Apex Court observed as under:
"It is now a well-settled principle of law that the order of dismissal can be passed even if the delinquent official had been acquitted of the criminal charge."
It is only in exceptional circumstances where the charges against an employee in a criminal trial and that in the departmental enquiry are one and the same and where evidence in both the proceedings is common, the acquittal of the employee in criminal trial may conclude even the departmental proceedings. In such circumstances, it would not be justified to impose an order of punishment. In the case of Capt. M. Paul Anthony Vs. Bharat Gold Mines Ltd. and another AIR 1999 SC 1416 the employee who was an accused in a criminal case was exonerated on merits by a judicial pronouncement. The charges in the departmental proceedings were same and were sought to be proved on the basis of the same set of evidence as was adduced in the criminal case wherein the accused-employee was discharged. The Court held that the acquittal in criminal trial concludes the departmental proceedings and the order of dismissal of the employee, if any passed is liable to be set- aside.
The Apex Court in the case of State Bank of Hyderabad and another Vs. P. Kata Rao (2008) 15 SCC 657 approving the principle laid down in the case of Capt. M. Paul Anthony (supra) reiterated that acquittal of delinquent employee facing a criminal charge would not debar the disciplinary authority from proceeding with the departmental enquiry or in initiating a fresh departmental proceeding and since the dicta of the Court in Capt. M. Paul Anthony remains unshaken the applicability thereof would depend upon the factual situation of each case.
In sum and substance the principles that emerge from the above authorities are that:
1.a delinquent employee can be proceeded with departmentally as well as with criminal case simultaneously on the same charges;
2.acquittal of the delinquent employee in criminal trial may not debar the disciplinary authority either to initiate departmental proceedings against him or to continue with departmental proceedings already initiated;
3.acquittal in criminal trial would not ipso facto result in conclusion of the departmental proceedings; and
4.it is only in the factual situation of each case where the charges and the evidence in the criminal case as well as in the departmental proceedings are one and the same the disciplinary authority may not be justified in imposing punishment when the delinquent employee has already been acquitted in the criminal trial.
Sri K.P.Agarwal, Senior Counsel appearing on behalf of respondent no.1 has placed reliance upon a decision of the Supreme Court reported in AIR 2006 SC 2129 G.M.Tank Vs. State of Gujarat and another. The aforesaid decision lays down that where departmental proceedings are based on identical and similar set of facts and evidence and where same witnesses were examined in criminal case resulting in acquittal of the delinquent employee, no contrary finding can be recorded in departmental proceedings as the same would amount to be unfair and oppressive.
The principle laid down in the above case is one and the same as has been enshrined in the case of Capt. M. Paul Anthony (supra) that normally where the accused is acquitted honourably and is completely exonerated of all the charges in a criminal trial, it would not be expedient to continue departmental inquiry on the same very charges or grounds or evidence.
Now reverting to the facts of the present case so as to apply the principles carved out from the above decisions, we find that respondent no.1 was charge sheeted on two counts in the departmental proceedings, namely (i) on 15/16.7.1994 instead of showing deposit of Rs.15,000/- in five years fixed deposit account of Smt. Phoola Devi wife of Baldeo Prasad Dwivedi, he manipulated to show the amount of Rs.1500/- only which amounted to gross misconduct within the meaning of Rule 17 of Additional Departmental Agent (Conduct and Service) Rules, 1964 and Rule 125 and 129 of Branch Post Office Rules; and (ii) on 13.1.1994, 22.2.1994 and 14.6.1994 respectively, he failed to deposit the necessary amount entrusted to him for being deposited in recurring deposit accounts No.93, 98 and 96 which also amounted to misconduct on his part. In respect of aforesaid charges six witnesses were named. He was found guilty on both the counts.
The tribunal took no care to examine as to whether the above two charges were also the subject matter of trial in the criminal case on the basis of same evidence.
Thus, the tribunal without appreciating and considering the legal position as laid down in Capt. M. Paul Anthony (supra) and reiterated even in G.M.Tank (Supra) mechanically held that as respondent no.1 has been acquitted in the criminal case, there is no justification for inflicting any punishment upon him in the departmental proceedings. Accordingly, it ordered for setting aside of the punishment and reinstatement of respondent No.1.
In our view, the tribunal manifestly erred in passing the impugned order without adverting to the facts and circumstances of the case, as enumerated above, and without correctly applying the legal principles as enunciated above in the right perspective.
Accordingly, the writ petition is allowed and the judgment and order dated 8.8.2005 passed by the Central Administrative Tribunal, Allahabad (Annexure - 11) is quashed with leave to the tribunal to re-examine the matter in the light of the observations made above. A writ of certiorari as well as that of mandamus are directed to be issued accordingly.
No order as to costs.
Order Date :- 8th July, 2011 brizesh