Pawan Kumar Sharma (In Wria 6601 Of ... vs Union Of India Thru. Secy. ...
2022 Latest Caselaw 4193 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 2
 

 
Case :- SPECIAL APPEAL No. - 240 of 2022
 

 
Appellant :- Pawan Kumar Sharma (In Wria 6601 Of 2000)
 
Respondent :- Union Of India Thru. Secy. Ministry Of Industries, New Delhi And Others
 
Counsel for Appellant :- Gopal Pandey
 
Counsel for Respondent :- A.S.G.I.,Ajai Kumar Rai
 

 
Hon'ble Devendra Kumar Upadhyaya,J.

Hon'ble Subhash Vidyarthi,J.

Heard the learned counsel for the appellant Shri Gopal Pandey and Shri Manu Dixit, learned counsel representing the respondent- Bharat Heavy Electricals Ltd.

By means of this intra-court appeal the appellant-petitioner seeks to challenge the judgment and order dated 26-04-2022 whereby the writ petition filed by him namely Writ-A No.6601 of 2000 challenging the order of punishment of dismissal/removal dated 25-09-2019 and the order passed by the appellate authority rejecting his appeal, has been dismissed.

Before adverting to the submissions made by the learned counsel for the appellant we may record certain facts;

The appellant-petitioner was employed as Junior Operator (Insulator) with the Bharat Heavy Electricals Ltd., Jagdishpur, District Sultanpur, a Government of India enterprise. In respect of certain charges relating to claim of reimbursement of fake medical bills, he was placed under suspension on 08-11-1990 and a charge-sheet dated 14-05-1990 was served upon him on 22-05-1990. The appellant-petitioner submitted his reply to the said charge-sheet and after completion of the inquiry proceedings an inquiry report was submitted by the Inquiry Officer on 13-03-1991.

On consideration of the inquiry report and the reply submitted by the appellant-petitioner to the said inquiry report, the matter was considered by the disciplinary authority who passed an order on 09-06-1999. The disciplinary authority who passed the order of dismissal/removal was holding the rank of General Manager. The said decision of punishment dated 09-06-1999 was communicated to the appellant-petitioner by the Manager (Production) vide his letter dated 25-09-1990. The order of punishment was challenged in departmental appeal who too was dismissed by the appellate authority by means of the order dated 15-07-2020.

Apart from initiating the disciplinary proceedings criminal prosecution in respect of the same charge relating to claim of reimbursement of fake medical bills, was also launched and an F.I.R. was lodged at Case Crime No.1807 of 1998 under Sections 467, 468, 471 and 420 IPC at Police Station Bazar Shukul, District Sultanpur. In pursuance of the said charge-sheet, the matter was investigated and the Investigating Officer accordingly submitted a charge-sheet. The appellant-petitioner was put to trial which however, resulted in his acquittal by means of the judgment and order dated 05-06-1999 passed by the IV Additional Chief Judicial Magistrate, Sultanpur.

Before the learned Single Judge two grounds were raised by the learned counsel representing the appellant-petitioner. These two grounds are being urged before this Court as well in this Special Appeal.

Firstly, it is submitted by the learned counsel for the appellant-petitioner that the punishment order has not been passed by the disciplinary authority in terms of the provisions contained in Clause 35 (4) (v) of the Certified Standing Orders applicable to the appellant-petitioner inasmsuch that the order dated 25-09-1999 was passed by the Manager whereas it ought to have been passed by an officer holding the rank of General Manager. Secondly, it has also been argued by the learned counsel for the petitioner that once the appellant-petitioner was acquitted by means of the judgment and order dated 05-06-1999 passed by the IV Additional Chief Judicial Magistrate, Sultanpur, there was no occasion for the respondent-company to have held him guilty and accordingly punished him in the departmental proceedings.

So far as the first ground is concerned, learned Single Judge has clearly recorded a finding that infact the letter/order dated 25-09-1999 was not the original order of punishment rather it was only a communication of the decision of the competent authority whereby the appellant-petitioner was dismissed/removed. The decision by the competent authority namely by an officer holding the rank of General Manager, dated 09-06-1999 was brought to the notice of the learned Single Judge and on the said basis the learned Single Judge has recorded a categorical finding that the decision to remove/dismiss the appellant-petitioner was taken by an officer who was competent to pass such an order. Nothing contrary to the said finding has been brought to our notice even in this special appeal filed by the learned counsel for the petitioner. Thus, the said argument is hereby rejected.

Regarding the second submission is to the effect that once the appellant-petitioner was acquitted in the criminal case which was based on the same allegations/charges and on the basis of the same set of evidence, it was incumbent upon the disciplinary authority to have recorded a finding of exoneration instead of recording punishment against the appellant-petitioner.

Learned Single Judge has discussed in detail the law laid down by the Hon?ble Supreme Court in this regard. It is well established that in case in respect of the same charges/allegations the employee is subjected to criminal trial and if such criminal trial results in his honourable acquittal, ordinarily in the disciplinary proceedings the employee cannot be held guilty and as such punishment order cannot be passed.

The condition thus is " honourable acquittal" in the criminal case. Honourable acquittal in the criminal case will mean acquittal after consideration of the entire evidence that is to say on the basis of the evidence if complicity of the employee is not found in the criminal case, that will amount to honourable acquittal. However, in case in the criminal trial if the order of acquittal is recorded on account of hostility of the witnesses or on account of non-production/non-availability of the prosecution witnesses, in such an event it cannot be said that employee has been honurably acquitted.

In the light of the aforesaid recognized principle, when we examine the judgment and order dated 05-06-1999 passed by the IV Additional Chief Judicial Magistrate, Sultanpur whereby the appellant-petitioner was acquitted of the charges under Sections 467, 468, 471 and 420 IPC, what we find is that the learned Magistrate has recorded a finding that despite being given several opportunities, the prosecution did not produce the witnesses. The learned Magistrate has also recorded a finding that the only witness produced by the prosecution Dr. Ravi Vighe has taken a turn around and as such on account of non-production of the prosecution witnesses and also on account of the statement of the prosecution witness Dr. Ravi Vighe, the appellant-petitioner has been acquitted due to lack of evidence.

In the last paragraph of the discussions made by the learned Magistrate while recording a finding of acquittal in his judgment and order dated 05-06-1999 it is clearly recorded that as per the law laid down by this Court as also by the Hon?ble Supreme Court, on account of lack of evidence, the appellant-petitioner was liable to be acquitted.

In the light of the aforesaid finding recorded by the learned Magistrate in his judgment and order dated 05-06-1999 which is based on lack of evidence, it cannot be said that the appellant-petitioner was exonerated in the criminal trial honourably.

Thus, we are in a complete agreement with the judgment and order passed by the learned Single Judge which is under appeal herein. The special appeal thus, lacks merit which is hereby dismissed.

Order Date :- 26.5.2022

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