Bombay High Court
Sudhakar Shankarrao Chapke vs Maharashtra State Electricity ... on 21 December, 2017
Bench: S.C. Dharmadhikari
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 1846 OF 2014
Sudhakar Shankarrao Chapke ... Petitioner.
Age : 57 yrs., Occ.: Service as Executive
Engineer, Training & Security,
MSEDCL, Eklahara, Nasik,
R/o. C/o. Shri N. A. Bhise, Flat No. 3,
Ganesh Vihar Apartment, Bodhle Nagar,
Nasik Pune Highway, Ashoka Rd.,Nasik.
Versus
1. Maharashtra State Electricity Distribution
Company Ltd. (MSEDCL), having its
office at "Prakashgad", 6th Floor,
Station Road, Bandra (E), Mumbai-51
Through its Managing Director.
2. The Regional Executive Director (I), ... Respondents.
MSEDCL, Kalyan, Plant No.B-1-2
Godrej Hill, Baravegaon Road,
Kalyan (W), Dist. Thane.
---
Mr. Ajay S. Deshpande, Advocate, a/w. Mr. Amol Gatne,
Advocate for the Petitioner.
Mrs. A.R.S.Baxi, Advocate for Respondent Nos.1 & 2.
---
CORAM : S. C. DHARMADHIKARI AND
SMT.BHARATI H. DANGRE, JJ.
DATE : 21st DECEMBER, 2017
(JUDGMENT RESERVED ON : 06.12. 2017)
( --"-- PRONOUNCED ON : 21.12.2017)
JUDGMENT : (Per Smt.Bharati H. Dangre, J.)
1 Being aggrieved by the order dated 21st June, 2013
passed by the Regional Director of Maharashtra State
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Electricity Distribution Company Ltd. (MSEDCL), thereby
imposing a penalty of withholding increment of the petitioner
with cumulative effect, treating the period of dismissal from
08.08.2008 i.e. the date of his termination till the date of his
resumption of duties on 16.09.2012 to be as extra-ordinary
leave without pay and treating the period of suspension of
the petitioner as suspension period. The petitioner has invoked
the writ jurisdiction of this court and has prayed for quashing
and setting aside the said order dated 21.06.2013, passed by
the Regional Director of MSEDCL.
2 Before adverting to the grievance of the petitioner,
we would be gainfully refer to certain factual events, leading us
to adjudicate the reliefs sought in the writ petition.
The Petitioner was appointed as Junior Engineer
with the Maharashtra State Electricity Board (MSEB) and,
during his service career, he was promoted as Executive
Engineer in October, 2003. On trifurcation of the Maharashtra
State Electricity Board in the year 2005, the services of the
petitioner have been allocated to the Maharashtra State
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Electricity Distribution Company Ltd., (hereinafter referred to
as 'MSEDCL'), which is a 100% State Government owned
company / the public undertaking. While discharging his
duties in the said capacity as Executive Engineer, the petitioner
was implicated in an anti-corruption case on 08.02.2008 and
the provisions of sections 7, 13(1) (d) read with Section 13(2)
of the Prevention of Corruption Act,1988 were invoked and
applied. Resultantly, the petitioner was tried by the learned
Special Judge, Sindhudurg in Special Case No. 7 of 2009.
The niceties of the criminal trial, would be adverted to at a
little later stage.
The anti-corruption case was instituted against the
petitioner on a complaint lodged by one Shri Keshav Shende, a
contractor from Pune, who alleged that the petitioner had
demanded an amount of Rs.50,000/- from the complainant, as
a consideration for releasing his bills in the capacity as
contractor. The petitioner was placed under suspension on
09.02.2008, pending the criminal prosecution. The petitioner
was served with the charge-sheet, as contemplated under Rule
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90 of the Service Regulations by the Respondent on 12.03.2008
to which the petitioner responded by filing a detailed reply.
However, the petitioner was served with the show-cause
notice of dismissal of his services on 30.06.2008 and the
petitioner showed cause to the same, by contending that the
criminal prosecution against him was yet pending and on the
same set of facts, it was not open for the Respondents to
initiate the disciplinary proceedings against him. However,
according to the petitioner, in ignorance of the extensive reply
filed by the petitioner, he was dismissed from service by order
dated 08.08.2008.
3 Being aggrieved by the said order of dismissal, the
petitioner approached this Hon'ble Court by filing a writ
petition, which was numbered as W.P. No. 4006 of 2008 in the
High Court of Judicature at Bombay, Bench at Nagpur, since
at the relevant time, the petitioner was residing at Pusad in
Yeotmal District, which was falling within the territorial
jurisdiction of Nagpur Bench of the Bombay High Court.
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In the said writ petition, the petitioner made a
grievance that the impugned order dated 08.08.2008,
dismissing him from service, was issued in utter violation of
principles of natural justice and he contended that initiation of
the proceedings against him by virtue of Regulation 90, in the
nature of summary proceedings, was not sustainable and no
opportunity was afforded to him of being heard and,
therefore, the petitioner contended that he could not have
been removed from service in a summary manner and without
holding a regular departmental enquiry. He also contended
before the court that criminal prosecution initiated against
him has resulted in his acquittal by judgment dated 05.10.2011
passed by the Special Judge, Sindhudurg and in the light of the
said acquittal, the departmental enquiry itself was not
sustainable and so also the penalty imposed on him is liable to
be set aside. The Hon'ble High Court addressed the grievance
of the petitioner and arrived at a conclusion that though the
petitioner was acquitted by judgment dated 05.10.2011
delivered by the Special Judge, Sindhudurg but the criminal
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appeal against the said judgment and order of acquittal was
still pending. The Hon'ble High Court, after taking note of the
fact that no regular departmental enquiry under Regulation 88
has been held against the petitioner, but, by referring to the
judgment in the case of U.P. State Spinning Co. Ltd., vs. R.
S.Pandey and Another, reported in (2005) 8 SCC 264, refused
the relief of granting unconditional reinstatement (blanketly)
in view of the acquittal in the criminal case but the Hon'ble
Court moulded the relief to the effect of setting aside the
order of removal of the services of the petitioners and directing
his reinstatement in service but reserved the liberty in favour
of the respondent-employer to proceed and hold a regular
departmental enquiry against the petitioner under Regulation
No. 88. The Hon'ble Court passed the following order in the
said writ petition, which reads thus :
ORDER
"i. Writ petition No. 4006 of 2008 is partly
allowed.
ii. The impugned order dated 08.08.2008 passed
by the respondent no. 2 removing the petitioner
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from service is quashed and set aside with liberty to
the respondent employer to hold a regular
departmental enquiry against the petitioner in
accordance with law and complete the same in any
case within a period of six months from serving of
the charge-sheet on the petitioner. The charge-
sheet shall be served on the petitioner within eight
weeks from today.
Iii. The respondent employer shall issue formal
order of reinstatement in service to the petitioner
and shall be at liberty to place him under
suspension pending regular departmental enquiry.
Within a period of one week from the date of
reinstatement, the petitioner shall be paid
subsistence allowance from the date of
suspension.
iv. The respondents shall fix the schedule and
venue of the enquiry and shall hear the petitioner
as to the amount required by him. The
respondents shall take decision according to the
fact situation after hearing the petitioner and
accordingly make payment, if so decided, to the
petitioner.
v. The issue about back wages, period of
suspension, period of unemployment, etc. shall be
decided by the Disciplinary Authority
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simultaneously upon culmination of the enquiry
proceedings.
vi. ... ...."
4 Pursuant to the said order dated 02.08.2012 passed
by the Division Bench of this Court (Coram : Smt.Vasanti A.
Naik and A. B. Chaudhari, JJ.), the petitioner was reinstated
in service by order dated 07.09.2012 and he resumed his
duties with the Respondent w.e.f. 17.09.2012. By another
order dated 18.09.2012, the petitioner came to be placed
under suspension once again, pending the disciplinary
proceedings/ action under Service Regulation No. 88. The
Petitioner was again served with the chargesheet on
24.09.2012 and according to the petitioner, the chargesheet
was accompanied by the documents concerning the trap laid
by the Anti Corruption Authorities and no independent
documents were supplied along with charge-sheet. It is the
case of the petitioner that the disciplinary proceedings
initiated vide order dated 24.09.2012 were concluded by
the enquiry officer, by submitting his report and the
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proceedings were conducted on 15th and 16th March, 2013. A
copy of the enquiry report alongwith the show cause notice
dated 16.04.2013 was forwarded to the petitioner, calling upon
the petitioner as to why the punishment of dismissal from
service should not be inflicted upon him. The petitioner
submitted his response to the said show cause notice and raised
the grievance that the charges against the petitioner have not
at all been proved and mere reliance on the documents by
the Anti Corruption Bureau which were being put to use for the
criminal trial, cannot be the material on which it could be said
that the charges leveled against him in the disciplinary
proceedings can be proved. On 19.06.2013 the petitioner
came to be reinstated in the service by claiming benefit of the
administrative circular no. 197 dated 26.12.2008 by issuing
order dated 16.02.2013, and his suspension period was also
terminated w.e.f. 18.09.2012. In pursuant to the said order,
the petitioner resumed his duty on 24.06.2013.
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5 It is the case of the petitioner that after his
reinstatement in service, he was served with the final order of
punishment dated 21.06.2013 issued by the Regional
Executive Director, Kalyan by which following penalties were
inflicted upon him :
a) Stoppage of one year increment for a period of one
year with cumulative effect.
b) The period from 08.08.2008 i.e. the date of
dismissal till 16.09.2012 i.e. the date of
resumption of duty, be treated as the period
of an extra-ordinary leave without pay.
c) Period of suspension i.e. from 09.02.2008 to
07.08.2008 and 18.09.2012 to 24.02.2014 be
treated as period of suspension by way of penalty.
It is this order, which has prompted the petitioner to invoke
extra-ordinary writ jurisdiction of this court by filing the
present writ petition.
6 In response to this writ petition, the MSEDCL has
filed its affidavit, opposing the reliefs sought by the Petitioner.
At the outset, it is stated in the affidavit that the petitioner has
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an alternate remedy under the Maharashtra State Electricity
Distribution Company Limited Employees Service Regulations
of 2005. It is also stated that the petitioner has filed an
appeal which was dismissed on 30.12.2013. As regards the
merits of the matter it is not disputed that the petitioner had
also approached this Hon'ble High Court at Nagpur Bench and
that the Hon'ble High Court had ordered his reinstatement
and granted liberty to the respondents to proceed with the
departmental enquiry. It is stated in the affidavit that pursuant
to the said order, the petitioner was permitted to resume his
duties on 17.09.2012 and he was placed under suspension on
18.9.2012. It is further stated that a charge-sheet was issued
to the petitioner on 24.09.2012 under Service Regulation No.
86 (3), Schedule-C, Items Nos. 12, 14, 15, 21, 23 etc.. It is
further stated in the affidavit that the regular enquiry under
Regulation No. 88 was held and a show-cause was issued to
the petitioner on 16.04.2013 and on consideration of the
reply submitted by him, the final order was passed on
21.06.2013 for stopping of increment for a period of one year
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with cumulative effect and treating the period from his
dismissal till his reinstatement, pursuant to the orders passed
by the High Court, as period of an extra ordinary leave without
pay and treating the suspension period as it is by way of
punishment. The affidavit further states that considering the
gravity of mis-conduct by a person like the petitioner, the
departmental enquiry was held and the punishment order was
issued. It is reiterated that the enquiry was held by the
respondents in terms of procedure prescribed under the Rules
and Regulations and also by following the principles of natural
justice. It is also stated that the proceedings in the criminal
case and departmental enquiry are different in their nature
and the petitioner is not entitled to claim advantage of the
order of acquittal, which was based on benefit of doubt.
Further reliance is placed on Rule 10(A) (Amended) of the
Service Regulations to deprive the petitioner of any wages for
the period from 08.08.2008 to 16.09.2012 on the principle of
"no work, no pay". It is also further stated that treating the
period of suspension as it is by way of penalty is in view of
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the fact that act of the petitioner has maligned the reputation
of the respondent company in the eyes of the general public
and has spread a bad message in the society.
Consequent to the filing of the said affidavit, the
petitioner has filed the rejoinder affidavit, where he has
admitted that he had filed the present writ petition in the
second week of December, 2014, whereas the appeal filed by
him, assailing the impugned order of penalty, is dismissed by
the Appellate Authority on 30.12.2013 and as such there is
no suppression on the part of the petitioner. According to the
petitioner, the respondent has also tried to discern the stand
of the petitioner based on the order in writ petition no. 4006
of 2008, dealing with the Service Regulations 10(A)
(Amended), to justify the impugned order. However,
according to the petitioner the Service Regulation 10(A)
comes into play only in the event the incumbent is convicted
by the competent court. By referring to administrative
circular no. 197 dated 26.12.2008, the petitioner further
contends in the affidavit that the said Circular deals with one
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of convicted employees who is acquitted in appeal by the
appellate court and reinstated in the service, he shall not be
eligible for any payment from the date of termination of his
services. However, according to the petitioner, this principle is
not applicable to his case since he was acquitted by the
Sessions Court. This affidavit is again rebutted by the
respondent by filing a reply of the Assistant General Manager
of MSDCL Ltd., Kalyan on 12.09.2014.
7 We have heard the arguments of the learned
counsel Shri Ajay Deshpande alongwith Mr. Amol Gatne,
Advocate appearing on behalf of the petitioner. The counsel
for the petitioner would argue that the disciplinary
proceedings initiated against the petitioner are not sustainable
in the eyes of law as also in view of the position of law settled
law by the Apex Court and by this court in the catena
decisions, where it has been held that it is not permissible to
conduct the departmental enquiry on the same set of facts for
which the delinquent has been subjected to a criminal
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prosecution. The learned counsel relied upon the judgment of
the apex court in the case of S. Bhaskar Reddy & Anr. vs.
Superintendent of Police and Anr, reported in AIR 2015
SCW 571, wherein the Hon'ble Apex Court, after referring to
the judgment in the case of G. M. Tank vs. State of Gujarat
and Ors., has held that in a case where the facts and evidence
in the departmental proceedings as well as in criminal
proceedings are the same without there being any iota of
difference, then, the appellant must succeed and specifically
when there was an honourable acquittal of the employee
during the pendency of the disciplinary proceedings, the same
requires to be taken note of and the appeal deserves to be
allowed. According to the counsel for the petitioner, the
petitioner was charged for an act of demand of an illegal
amount of Rs.50,000/- and the accusation against him is that
he demanded the amount by way of illegal gratification so as
to settle the claim of the contractor. However, when this
accusation was put to trial, the trial court / the Special Judge,
Sindhudurg, in Special Case was pleased to grant benefit of
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doubt to the petitioner on appreciation of evidence on record
and it has been held that there was no evidence relating to
demand of bribe by the accused. He also relies on the findings
of the Special Judge that he has been falsely implicated by the
informant due to strained relations and the Special Judge has
acquitted of the petitioner of the charge with the offence
punishable under sections 7, 13(1)(d) and 13(1)(e) read with
section 13(2) of the Prevention of Corruption Act. The learned
counsel for the petitioner places heavy reliance on the
judgment of the Special Judge delivered on 5th October, 2011
and he would argue that in the light of the said acquittal, the
disciplinary proceedings are not maintainable. The learned
counsel would also argue that in the earlier round when the
services of the petitioner were put to the end by passing an
order on 08.08.2008, removing the petitioner from service and
he had approached the Hon'ble High Court by filing the writ
petition, though the Hon'ble High Court had held that the
summary procedure adopted by the respondents to put an end
to the services of the petitioner without conducting any Inquiry
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was not justified and the Honourable Court had granted relief
of reinstatement to the petitioner with liberty to the
respondent employer to proceed to hold a departmental
enquiry under Regulation No. 88, but that is in accordance
with law. Advocate Shri Deshpande would argue that when
liberty was given to the employer to conduct a departmental
enquiry, the full fledged enquiry was not at all conducted
and rather the enquiry proceeded in a mechanical manner
relying upon the evidence adduced in the course of the trial,
relying upon the anti - corruption trap and the material
produced during trial and not a single independent witness
was examined nor did the petitioner get opportunity to cross-
examine any of the witnesses. According to the learned
counsel the entire approach of the respondent amounted to
throttling the well accepted principles of service jurisprudence.
It is further argued that the charge against the petitioner in
relation to mis-conduct was not proved during the course of
the disciplinary enquiry and the enquiry was vitiated by not
following the procedure of law which resultantly vitiated the
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penalty imposed upon him. The learned counsel would also
argue that the reliance placed on the administrative circular
dated 26.12.2008 is totally unwarranted and the said circular
is not applicable to this case which rather provides for
contingency where the employee is acquitted of the criminal
charges leveled against him and in that case the suspension
has to be treated as duty period and the increments are
required to be released on due dates and the pay of the
employee to be re-fixed. The learned counsel for the
petitioner would argue that the administrative circular no. 197
has been conveniently ignored by the respondents, while
imposing the penalty as per the impugned order. The learned
counsel would also argue that in case of other employees,
who were similarly situated as the petitioner and whose orders
have been placed on record by the petitioner at page 100 of
the petition, the period of suspension has been treated in
terms of the administrative circular no. 197 dated 28.12.2008
as leave without pay. The learned counsel, therefore, argued
that the petitioner has been treated in a discriminatory manner,
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by depriving him of the benefit of circular no. 197 and the
benefit of which has been extended to other employee.
8 Per contra, we have also heard learned counsel
Mrs. Baxi appearing on behalf of the respondent nos. 1 and 2.
The learned counsel would argue that the parameters of
disciplinary enquiry and the criminal proceedings, being
distinct in nature the petitioner cannot take advantage of his
acquittal in criminal proceedings. She would further argue
that the standard of proof in criminal case is proof beyond
reasonable doubt whereas in the case of the departmental
proceedings, it is the preponderance of probabilities. She
would further argue that mere acquittal in the criminal case
which some time is the result of varying circumstances namely,
either witnesses turning hostile or evidence not brought on
record by the prosecution or it being not appreciated in its
proper perspective, results in the acquittal but such acquittals
are not necessarily the acquittals on merit and the acquittal on
the ground of benefit of doubt would not stand on par with
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the clear acquittal on merit after full-fledged trial and as the
petitioner in the present case has been given the benefit of
doubt. According to the learned counsel, the MSEDCL has
made a provision in its service regulations and categorized
certain conduct as 'misconduct' and the petitioner has been
charge sheeted with such acts of misconduct on account of
his behaviour, unbecoming of a public servant and bringing
the image and reputation of the respondents company to dis-
repute. According to Mrs. Baxi, the charges levelled against
the petitioner in the departmental enquiry pertain to such
acts of misconduct as an employee of the respondents and he
has been found to be guilty of such misconduct and, therefore,
the penalty, which according to her, is quite distinct from the
accusation which he faced in the criminal proceedings where
he was alleged to have accepted an amount of Rs. 50,000/-
and caught red handed, while accepting the said amount
towards illegal gratification, by the Anti Corruption Bureau.
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9 The proposition that the disciplinary proceedings
are distinct,exclusive and independent of the criminal
proceedings, is no more res-integra and it is also a settled
position of law that an act of acquittal in criminal proceedings
would not preclude the employer from taking action or
proceedings against its employee departmentally if the Service
Rules, regulating the condition of service of the employee
permits so. Admittedly, the service conditions of the petitioner
are governed by the MSEDCL Employees Service Regulations
of 2005. Said Regulations, by Rule 88 prescribe the procedure
for dealing with the acts of mis-conduct which contemplates
an action of suspension when employee is charged for
misconduct or against whom a case in respect of criminal
offence is under investigation, under Inquiry or trial. Rule 88
spells out the procedure to be followed by the employer
departmentally in an proceedings against the employee
which includes framing of charge, opportunity to submit
written/oral statements, inspection of documents, recording of
evidence etc.. The said Rule in detail prescribes the procedure
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to be followed, on receipt of the report of the enquiry officer
and communication of a decision including the penalty. Rule
90 of the Service Regulations MSEDCL, 2005 spells out
summary proceedings to be followed in the following
circumstances :
"Rule :- 90. Summary Proceedings :
The Competent Authority may hold summary
proceeding/s in case,
(a) where the employee is caught red-handed having
committed or while committing an act of misconduct,
(b) where there is obvious evidence of the act of
misconduct having been committed or,
(c) where the misconduct or mis-behaviour is
considered too grave and convincing to warray or justify
the normal procedure to be followed,
(d) where having regard to the surrounding
circumstances and the gravity of the offence for which the
employee is convicted in a court of criminal law,
Competent Authority is of the opinion that summary
proceedings are appropriate for deciding any punishment
including dismissal or removal,
(e) where an employee is involved in misconduct of
serious nature causing loss to the Company is due for
retirement from the services of the Company within a
period of three months.
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Without following the procedure prescribed in Service
Regulation 88 and take a decision on the evidence
available after charge-sheeting the employee concerned,
as prescribed in Annexure 3 and after giving him an
opportunity to make a statement."
10 The petitioner before us was prosecuted under
sections 7, 13(1)(d) and 13 1(e) r/w. Section 13 (2) of the
Prevention of Corruption Act, on a complaint made by one
Electrical Contractor Shri Keshav Bhausaheb Shende, who is a
contractor, carrying out various electrical work and who was
alloted electrical work in Kankavali Division. It was alleged
that the said contractor had certain electrical bills to be
cleared against the work which he had rendered at Kankavali
under the contract allotted to him by the respondent company
and he was requesting the petitioner, who was working as
Executive Engineer, to release the said bill but there was no
positive response from the petitioner. It is alleged that on
31.01.2008 Shri Shende had met the petitioner and for
clearing the bills, the petitioner made a demand of Rs.
1,07,000/- as an illegal gratification. It is further alleged that
the complainant realized that if his bills had to be released,
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he has no option than to pay the amount demanded by the
petitioner but he requested to reduce the said amount, which
the petitioner refused but permitted him to satisfy the said
demand in installments. The said complainant - Shri Shinde
filed a complaint on 07.02.2008 with the Anti Corruption
Bureau, Pune and pursuant to which a trap was laid on
08.02.2008 and the petitioner was caught red handed while
accepting Rs. 50,000/- from the complainant at his residence.
It is not in dispute that the petitioner was tried for the offences
with which he was charged by the competent court, which
resulted into his acquittal from the offence with which he was
charged on the ground that the benefit of doubt which has
been raised due to absence of evidence relating to the demand
of bribe.
11 The petitioner being an employee, working on a
responsible post of Executive Engineer, was charged for the
acts of mis-conduct and the chargesheet came to be served
upon him on 24.09.2012, wherein he was accused of mis-
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conduct under various clauses of the MSEDCL Employees
Service Regulations, 2005, including the following charges :
i) Misconduct or conduct in contrast to good conduct.
(under the MSEDCL Employees Service Regulations
of 2005, Schedule -KH, Rule No. 86(3), Serial
No.12)
ii) Dis-honesty.
iii)Involved into activities detrimental to interest of
the Company.
iv)Demand of illegal gratification for individual
benefit and accepting the amount of Rs. 50,000/-.
v) Dereliction of duties.
vi) Maligning the image of the company in the eyes of
the general public.
The said chargesheet was served upon the petitioner and the
petitioner abjured the guilt and filed his response/reply,
denying the said charges leveled against him in the
chargesheet. Shri Arun Namdav Rankhambe, the Chief
Executive of MSEDCL, Kokan Parimandal, Ratnagiti, was
appointed as Inquiry Officer, and the Inquiry proceeded
against the petitioner. The said Inquiry Officer considered
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the submission of representative of the Management, who put
up the case of the respondents before the Inquiry Officer and
the Petitioner was given an opportunity to meet all the six
charges levelled against him in the departmental enquiry and
the chargesheet was served on him.
On a careful consideration of the each charge and
after taking into consideration the stand of the respondent
through it's representative and the petitioner, the enquiry
officer submitted his detailed report by holding that all the six
charges levelled against the petitioner in the chargesheet dated
24.09.2012 stand proved. The petitioner was supplied with
the copy of the enquiry report and was also issued a show
cause notice on 16.04.2013 by the respondent, directing the
petitioner to show cause as to why the penalty of dismissal
from service should not be imposed on him. The petitioner
submitted a detail response, which has resulted into issuance of
final order on 21.06.2013, which is impugned in the present
petition and the details of which have been already narrated
above by us.
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The contention of the petitioner is that the said
enquiry is merely a farce, as no witnesses were examined
during the course of the enquiry and that the material, relied
upon by the criminal court, was put to use during the course of
the disciplinary enquiry. We do not agree with this contention
of the petitioner, as we did not find any flaw in the conduct of
the departmental enquiry. We are also not impressed by the
repeated reference of the petitioner to the order of acquittal
passed by the competent criminal court, acquitting him of the
charges of accepting the amount of bribe. The acquittal from
the competent criminal court in no case would preclude the
employer from exercising its power of proceeding
departmentally against the employee in accordance with the
Rules and Regulations in force. The purpose of departmental
enquiry is to deal with an employee departmentally, as the
employer expects its' employee to act with a sense of
responsibility and every employer expects his employee to act
with utmost honesty and integrity. Ultimately, the
relationship between the employer and employee involves a
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degree of trust and if the employee is charged and is arraigned
in any criminal case, the employer may feel loss of
confidence and faith in such employee and would test the
employee from the angle as to whether he is fit to continue his
relationship with him or not. The employee is made aware
while entering into the service agreement with the employer
about his duties and that he will have to maintain integrity,
devotion to duty and not to indulge in any act which is
unbecoming of an employee of a company. Every public
employment has its own sets of Rules, determining
"misconduct" or such "forbidden conduct", of an employee.
The employee is also obliged to act in a public interest and not
to mis-use his position so as to derive any financial or material
benefit for himself and bring the image of his employer to
disrepute. The Respondent MSEDCL being the public
undertaking and the petitioner being a public servant, was
duty bound to act in a manner conducive to a public servant
and assist the respondent company, who was endowed with the
responsible work of distribution of electricity throughout the
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State by efficiently discharging his duties with utmost honesty
and integrity. On the accusation of accepting the bribe to
settle the claim of one of the contractors, rendering the
services to the respondent company, the employer thought it
fit to subject the petitioner to disciplinary proceedings for the
acts which have been spelt-out in the service regulations as
"misconducts" and the petitioner was served with a charge-
sheet, before conducting the departmental enquiry. The
acquittal of the petitioner in the criminal proceedings does not
preclude the employer from conducting the departmental
enquiry and imposing a penalty on him in accordance with the
Disciplinary Rules, governing the employees of the respondent
company and the acquittal from the criminal charge does not
ipso facto absolve the petitioner from facing such a
departmental enquiry. The scope of criminal proceedings and
the departmental enquiry are distinct, being different in the
mode of enquiry, scope of enquiry, standard of proof and vary
from purpose of conduct of such proceedings. For the purpose
of criminal prosecution is to inflict proper punishment as an
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offender, whereas the purpose of departmental prosecution
of the public servant is to maintain integrity, honesty and
truthful conduct in performance of the public duty, weighing
his conduct so far to render efficient public service. Any
conduct which is unbecoming of a public servant, which
amounts to maligning the image of an organization or bringing
in disrepute the organization where the employee is working,
needs to be tackled departmentally irrespective of whatever
may be the fate of the criminal proceedings.
12 In this background, the respondent has issued
chargesheet to the petitioner and proceeded against him by
conducting a departmental enquiry, which resulted in
imposition of penalty on the petitioner. In arriving at a
conclusion that the charges levelled against the petitioner
have been proved, the respondent did not examine any witness
but relied upon the undisputed conduct of the petitioner,
which clearly reflected his conduct unbecoming of a public
servant i.e. the conduct of dishonesty which had brought the
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respondent company to dis-repute. The enquiry officer
weighed the conduct of the petitioner qua each of the charges
levelled against him and applied the parameters of the
misconduct and undisputed conduct of the petitioner, namely,
soliciting illegal gratification from a contractor dealing with the
respondent company for settlement of his bills for the electrical
work done by him for the respondent company and this
conduct of the petitioner has been charged as a conduct in
contrast to a "good conduct". This conduct of the petitioner
was also held to be an act of dishonesty since he was caught
red handed while accepting the amount of illegal gratification.
The allegation of accepting the amount of bribe by the
petitioner by way of illegal gratification has also been held to
be responsible for maligning the image of the respondent
company since the incident of accepting the alleged illegal
amount by the petitioner and his arrest was widely published
in the newspaper. On the basis of the allegations that the
petitioner had demanded the amount towards illegal
gratification from the complainant, though he was acquitted
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of the charges levelled against him under the relevant
provisions of the penal statutes since the prosecution was
required to prove the case beyond reasonable doubt and it
had failed to do so and the petitioner was held to be entitled
for the benefit of doubt by the criminal court of competent
jurisdiction. The enquiry officer arrived at a conclusion that
the said conduct of the petitioner though was held to be
entitled for a benefit of doubt in the criminal proceedings, has
gained a feeling of mis-trust at the end of the employer, who
found his act to be unbecoming of a public servant coupled
with the act of dishonesty and the act of undermining the
image of the company in the eyes of general public and the
enquiry officer found all the charges levelled against the
petitioner in disciplinary proceedings to have been proved
since the parameters to be made applicable in the
departmental proceedings are based on preponderance of
probabilities and not on a proof, beyond reasonable doubt as
in a criminal trial. The Service Rules of the respondent
company treated certain conduct of the employees to be
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"misconduct" and certain acts of the employees have been
categorized as amounting to "misconduct" and the respondent
by following the procedure established by the law, as per the
service regulations, have inflicted penalty on the petitioner in
terms of its regulations since it was proved that the act of the
petitioner was detrimental to the interest of the respondent
organization and the respondent took decision to inflict penalty
on the petitioner. We did not find any perversity or
illegality in the impugned order as punishment has been
imposed after following the due procedure and after offering
a sufficient opportunity to the petitioner to deal-with the said
charges levelled against him.
13 The petitioner placed heavy reliance on the
administrative circular no. 197 dated 26.12.2008 issued by the
respondent company and on the basis of the said circular, the
petitioner had argued that when an employee is acquitted of
the criminal proceedings filed against him by the Anti-
Corruption Bureau, the said period of suspension is to be
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treated as duty period; whereas in the present case, the period
of suspension has been treated as suspension period. We do
not find any force in the submission advanced on behalf of
the petitioner, as we have noted that the order passed or the
penalty imposed by the respondent is of withholding a future
increment for a period of one year with cumulative effect.
By another limb of the impugned order, the period of dismissal
from 08.08.2008 to the date of his joining on 16.09.2013 has
been treated as extraordinary leave without pay. The learned
counsel for the respondent had invited our attention to Rule
10-A of the Service Regulations which contains instructions to
the effect that if an employee is acquitted in appeal in the
appellate court, he should be reinstated in service but he shall
not be eligible for any payment from the date of termination
of his service to the date of his reinstatement in the service
on the principle of "no work, no pay". We would gainfully
refer to the said Regulation 10-A in the following manner :
"SR 10-A Cir. No. GAD/V/A/DAC/6573 dt. 24-11-1992.
Admission of an appeal does not stay the order of the trial
Court. The Central Administrative Tribunal has concluded
that release on bail is not the same as suspending
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conviction and that the Department may impose penalty
when one has been convicted by lower court, even if he
has filed an appeal.
In view of the above position following instructions are
issued;
(i) On conviction of an employee by a trial court
the provisions under Service Regulation No. 10-
A are to be invoked and action to terminate the
services of such convicted employee should be
taken by the Competent Authority, forthwith.
(ii) In case such employee gets acquitted in
Appeal in the Appellate Court, he should be
reinstated in service. But he shall not be eligible
for any payment from the date of termination of
his service to the date of his reinstatement in the
services, on the principle of "NO WORK NO
PAY". He will, however, be eligible for
restoration of his seniority and other terminal-
benefits.
Further, there is no bar to hold and continue a
Departmental Enquiry, simultaneously, pending outcome
of the criminal case provided the charges in Departmental
Enquiry are other than the charges under the
consideration in criminal case against such employee. In
fact, it is advisable to start a separate Departmental
Enquiry in all such cases of criminal offence and take
independent action without awaiting the outcome of
criminal case."
This Hon'ble Court had an opportunity to deal with the said
Regulation 10-A in writ petition no.2301 of 2013 (Ramchandra
Bapusaheb Desai vs. Maharashtra State Electricity
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Distribution Company Ltd.,) to which one of us (Hon'ble Shri
Justice S. C. Dharmadhikari,J.) was a member and we would
gainfully refer to certain paragraphs from the said judgment
i.e. paragraphs nos. 8,10 and 11, which read as under :
8. Having said this, we find that Service Regulation
10-A completely supports the case put forth by Ms. Baxi.
Service Regulation 10-A reads thus:-
"SR 10-A Cir. No. GAD/V/A/DAC/6573 dt. 24-11-1992.
Admission of an appeal does not stay the order of the trial
Court. The Central Administrative Tribunal has concluded
that release on bail is not the same as suspending
conviction and that the Department may impose penalty
when one has been convicted by lower court, even if he
has filed an appeal.
In view of the above position following instructions are
issued;
(i) On conviction of an employee by a trial court
the provisions under Service Regulation No. 10-
A are to be invoked and action to terminate the
services of such convicted employee should be
taken by the Competent Authority, forthwith.
(ii) In case such employee gets acquitted in
Appeal in the Appellate Court, he should be
reinstated in service. But he shall not be eligible
for any payment from the date of termination of
his service to the date of his reinstatement in the
services, on the principle of "NO WORK NO
PAY". He will, however, be eligible for
restoration of his seniority and other terminal-
benefits.
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Further, there is no bar to hold and continue a
Departmental Enquiry, simultaneously, pending outcome
of the criminal case provided the charges in Departmental
Enquiry are other than the charges under the
consideration in criminal case against such employee. In
fact, it is advisable to start a separate Departmental
Enquiry in all such cases of criminal offence and take
independent action without awaiting the outcome of
criminal case."
10. In view of this clear Regulation, and the validity of
which has not been challenged in these proceedings, we
are unable to agree with Ms Sarnaik's submission that it
would be inapplicable to the Petitioner, because his was a
case where he was acquitted by the trial court and was not
acquitted in appeal. This Court in the case of Ramchandra
Bapusaheb Desai v. Maharashtra State Electricity
Distribution Company Limited,1 (in paragraph 10 of its
decision) has categorically held that a perusal of this
Regulation (Regulation 10-A) would indicate as to how in
case an employee gets acquitted in appeal or is acquitted
otherwise by the trial court itself, he shall be reinstated in
service. He would however not be eligible for any
payment from the date of termination of his service to the
date of his reinstatement on the principle of 'No work no
pay'. We, therefore, find no substance in the argument of
Ms Sarnaik that this Regulation would apply only in a case
where an employee is first convicted by the trial court,
and thereafter, acquitted in appeal. The principle of "NO
WORK NO PAY", would apply not only in cases where an
employee is first convicted and thereafter acquitted in
appeal, but would also apply in a case of an employee
who is acquitted by the trial court itself. We must mention
here that even in the case of Ramchandra Bapusaheb
Desai v. Maharashtra State Electricity Distribution
Company Limited1 the Petitioner was acquitted by the
trial court itself. Despite this, placing reliance on
Regulation 10-A, this Court took the view that the
Petitioner therein was not entitled to any payment from
the date of termination of his service to the date of his
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reinstatement. Not only is the said decision binding on us
but we are in full agreement with the same.
11. We also do not find any merit in the argument of
Ms Sarnaik that we ought to take a different view because
in the facts of the present case, it was a case of a 'clean
acquittal' or a 'honourable acquittal' rather than one that
was on 'reasonable doubt'. Firstly, we do not find any such
differentiation in Regulation 10-A. Regulation 10-A clearly
stipulates that where an employee is acquitted he should
be reinstated in service, but would not be eligible for any
payment from the date of termination of his service to the
date of his reinstatement. The Regulation makes no
differentiation between an acquittal by virtue of
reasonable doubt or what Ms Sarnaik would term as an
"honourable acquittal" or a "clean acquittal". In view of the
clear and unambiguous language of Regulation 10-A
staring the Petitioner in face, and which Regulation has
not been challenged before us, then all the more we are
unable to agree with Ms. Sarnaik on this point."
14 We also do not find any substance in the contention
of the petitioner that the period of suspension has to be
treated as duty period. The circular relied upon by the
petitioner, namely, the administrative circular no. 197 deals
with the subject of regulating the period of suspension and
the cumulative reading of this circular is only indicative of
the fact that how the period of suspension is to be treated and
that it is to be decided after prosecution case is finally decided
and it cannot be decided as long as a criminal case is pending
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and it is only on the contingency of acquittal, the period of
suspension is to be treated as duty period. However, this is
not the mandate in every case that such period has to be
treated as a duty period. The Disciplinary Authority, taking
over all view of the matter and the conduct of the petitioner
has deemed it appropriate and took a decision to treat the
suspension period as such and there is no perversity in the said
decision, as employee cannot by way of right claim that he is
entitled to treat this period as duty period. In fact, the
respondent authorities have obliged the petitioner by granting
him continuity of service by treating his period from dismissal
till reinstatement as leave without pay and thereby
regularizing the said period and saved him of the consequence
of break in service and the decision to treat the suspension
period, as it is by way of penalty while taking into
consideration the nature of the accusation against the
petitioner and the findings recorded by the Inquiry officer in
its enquiry report.
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15 It is seen that the petitioner had also approached
the appellate authorities and the appellate authorities have
refused to interfere in the impugned order dated 21.06.2013
and was rather pleased to uphold the said order. We do not
find any perversity in the said order since the said order takes
into consideration the conduct of the petitioner which was
detrimental to the interest of the organization and the
organization has taken a decision to impose penalty on the
petitioner so as to act as a deterrent on others from indulging
into such acts of corruption or improper conduct in the
capacity of public servant.
16 Hence, we do not find that the order impugned in
the present petition suffers from illegality, perversity or from
any error of law apparent on the face of the record.
In the result, the impugned order passed by the
Respondent on 21.06.2013 is upheld and we find that the
petition filed by the petitioner is without any merit and
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substance and the same deserves to be dismissed. It is
accordingly dismissed.
(SMT.BHARATI H.DANGRE,J.) (S.C.DHARMADHIKARI,J.)
.....
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