Indrajit Singh vs Eastern Coal Fields Limited & Ors
2021 Latest Caselaw 1826 Cal

                      IN THE HIGH COURT AT CALCUTTA
                     CONSTITUTIONAL WRIT JURISDICTION
                              APPELLATE SIDE

BEFORE:
The Hon'ble Mr. Justice Ravi Krishan Kapur

                            W.P.A. NO.17095 of 2002
                                  Indrajit Singh

                                      -vs-

                        Eastern Coal Fields Limited & Ors.



For the petitioner              : Mr. Prantik Garai,
                                  Mr. S. S. Arefin
                                  Ms. S. Bose

For the respondent no.7         : Mr. Debasish Sutradhar

Mrs. Somasree Saha For the ECL : Mr. Alok Kr. Banerjee, Ms. Sanchita Barman Roy

Heard on : 19.01.2021

Judgment on : 10.03.2021

Ravi Krishan Kapur, J.:

1. The petitioner assails a departmental proceeding initiated by the

respondent no.1 and also challenges the final order of dismissal dated

14/16th September, 2002 passed by the General Manager of the

respondent no.1.

2. The brief facts of the case are that the petitioner was appointed as a

magazine clerk of the respondent no.1 at the Kunustoria Colliery. In

the year 1993, the petitioner was accused of theft of 17,500

detonators drawn by the petitioner from the Belbad Colliery but which

had not been received by the Kunustoria Colliery. Subsequently, the

petitioner was charged with theft, fraud and dishonesty and was

ultimately dismissed from service.

3. On 16th March, 1994, in an earlier writ petition filed by the petitioner

challenging the order of dismissal dated 25th December, 1993 this

Court had set aside the order of dismissal and directed the respondent

authorities to pay the arrear salaries of the petitioner upto 28th

February, 1994. Subsequently, the petitioner thereafter joined service

on 18th March, 1994. Thereafter, pursuant to liberty granted by this

Court, the respondent initiated proceedings and the petitioner was

served with a charge sheet dated 21 March, 1994. The petitioner was

also placed under suspension by the same communication. The

petitioner challenged the notice dated 21 March, 1994 before this

Court and filed another writ petition being WP 8222 (W) of 1994. By

an order passed in WP 8222 (W) 1994, this Court had stayed the

suspension order.

4. Thereafter the petitioner replied to the charge sheet dated 21st March,

1994 and requested that the enquiry proceedings be stayed on the

ground that the respondent authorities had also filed a criminal

complaint and the criminal trial was in progress. The respondent did

not adhere to the request made by the petitioner and proceeded to

appoint Sri T.N. Mitra, Senior Personal Officer as an Enquiry Officer in

connection with the domestic enquiry. Subsequently, the petitioner

made several requests to the Enquiry Officer to stay the enquiry

proceedings on the ground that the same would prejudice the pending

criminal trial. Despite repeated requests, the Enquiry Officer did not

stay the enquiry proceedings and proceeded with the same.

5. In the enquiry proceedings the Enquiry Officer examined three

different witnesses and concluded that the petitioner had received

17,500 electrical detonators but had failed to deposit the same with

the Kulusotoria Colliery. The Enquiry Officer further held that the said

detonators had been received by the delinquent after falsifying

signatures and rubber stamps of the indenting official. The Enquiry

Officer inter alia concluded that the petitioner was guilty of theft,

fraud and dishonesty in connection with the property of the

respondent authorities.

6. In an earlier writ petition being WP 8222 (W) of 1994, this Court had

granted liberty to the respondent authorities to pass the final order

and communicate the same to the petitioner. Thereafter, by an order

dated 14th/16th September, 2002 the Enquiry Officer passed the final

order and dismissed the petitioner from service.

7. By an interim order passed in this petition the impugned order of

dismissal had been stayed and the respondent authorities were

directed to pay the usual suspension allowance to the petitioner. The

petitioner ultimately retired from service on 1st March, 2008.

Meanwhile, in the criminal case the petitioner had by an order dated

27 September, 2012 passed by the 5th Special Court in Burdwan,

Asansol been acquitted of the charges levelled against him. The order

has been brought on record by way of a supplementary affidavit filed

by the petitioner.

8. In this factual matrix it is submitted on behalf of the petitioner that

the petitioner has been honourably acquitted of all the charges in the

criminal proceeding and hence the departmental proceeding were

liable to be quashed. It is also submitted on behalf of the petitioner

that since the facts and evidence in the criminal trial and the

departmental proceedings were the same it would be unfair, unjust

and objectionable to allow the findings recorded in the departmental

proceeding to stand. It is also alleged by the petitioner that the

findings of the Enquiry Officer were vague and without any reason

and the Enquiry Officer had not considered the relevant evidence

before arriving at his conclusions. It is further submitted that the

petitioner was also entitled to an amount on account of pension.

9. On behalf of the respondent authorities it is submitted, that there are

no grounds to interfere with the report of the Enquiry Officer. The

Enquiry Officer conducted an enquiry after giving due notice to the

petitioner. The petitioner chose not to participate in the enquiry,

although he had adequate notice of the same. The Enquiry Officer

conducted the enquiry and submitted his Final Report finding the

petitioner guilty of all the charges levelled against him. Subsequently,

a second show cause notice was also issued to the writ petitioner. The

petitioner replied to the same.

10. It is submitted on behalf of the respondents that the scope of a

departmental enquiry is different from a criminal proceeding

inasmuch the standard of proof required in a departmental enquiry is

not the same as required to prove a criminal charge. Moreover, it is

submitted by the respondent authority that acquittal from a criminal

case does not automatically debar an authority from proceeding with

the departmental proceeding. In this context reliance was placed on

Captain M. Paul Anthony vs. Bharat Gold Mines Ltd. (1999) 3 SCC 679.

It is also submitted on behalf of the respondents that acquittal in a

criminal case has no relevance to the departmental proceeding

initiated against the petitioner inasmuch as in a criminal proceeding

the case has to be proved beyond reasonable doubt whereas in a

departmental proceeding it has to be proved on a preponderance of

probabilities. In this connection, reliance was also placed on the

decision reported in Samar Bahadur Vs. State of Uttar Pradesh & Ors.

(2011) 9 SCC 94 at para 7.

11. On merits, it is submitted on behalf of the respondents that, the

mere pendency of criminal proceeding cannot be a ground to interfere

with a departmental proceeding. It is also submitted on behalf of the

respondent no.1 that the petitioner had sought to make out a new

case by way of filing a supplementary affidavit for which there was no

factual foundation in the writ petition. On this ground alone, the

petitioner was not entitled to any relief whatsoever.

12. I have considered the submissions made on behalf of the parties and

also the pleadings filed on their behalf. At the outset, it is settled law

that a Writ Court whilst exercising powers of judicial review does not

assume the role of an Appellate Authority. Judicial review does not

permit entering into the intricate merits of a case like an Appellate

Authority and its jurisdiction is circumscribed by limits to consider

jurisdictional errors, correcting errors of law, procedural errors

leading to manifest injustice and any violation of the principles of

natural justice. These principles have been consistently reiterated in a

catena of decisions. It is also well-established that ordinarily the

disciplinary authority is the sole judge of facts. As a rule, the

adequacy of evidence or reliability of evidence ought not to be

canvassed before a Writ Court. In State of Andhra Pradesh and Ors Vs

S. Sree Rama Rao, AIR (1963) SC 1723 it has been held that:

"The High Court does not in a proceeding under Art. 226 of the Constitution act as a Court of appeal over the decision of the authorities holding a departmental enquiry against a public servant : it is concerned to determine whether the enquiry is held by an authority competent in that behalf and according to the procedure prescribed in that behalf, and whether the rules of natural justice have not been violated.

Where there is some evidence, which the authority entrusted with the duty to hold the enquiry has accepted and which evidence may reasonably support the conclusion that the delinquent officer is guilty of the charge, it is not the function of the High Court in a petition for writ under Art. 226 to review the evidence and to arrive at an independent finding on the evidence.

The High Court may undoubtedly interfere where the departmental authorities have held the proceedings against the delinquent in a manner inconsistent with the rules of

natural justice or in violation of the statutory rules prescribing the mode of enquiry or where the authorities have disabled themselves from reaching a fair decision by some considerations extraneous to the evidence and the merits of the case or by allowing themselves to be influenced by irrelevant considerations or where the conclusion on the very face of it is so wholly arbitrary and capricious that no reasonable person could ever have arrived at that conclusion, or on similar grounds. But the departmental authorities are, if the enquiry is otherwise properly held, the sole judges of facts and if there be some legal evidence on which their findings can be based the adequacy or reliability of that evidence is not matter which can be permitted to be canvassed before the High Court in a proceeding for writ under Art. 226 of the Constitution."

13. The primary grievance of the petitioner is that the disciplinary

proceeding and the criminal prosecution could not proceed

simultaneously. It is also argued that once a criminal court has

acquitted the petitioner in the criminal proceedings the departmental

proceeding was liable to be automatically quashed.

14. Ordinarily where a disciplinary enquiry has been held independently

of a criminal proceeding acquittal in the criminal case is of no avail to

the petitioner. As a proposition of law even if a person stands

acquitted by a criminal court a domestic enquiry can still be

conducted. The rationale being that the standard of proof required in

a domestic enquiry and that in a criminal case are altogether different.

In a criminal case the standard of proof required is the rule of beyond

reasonable doubt whilst in a domestic enquiry, it is on the

preponderance of the probabilities that an assessment of facts is made

[Management of Bharat Heavy Electricals vs. M. Mani (2018) 1 SCC

285, Divisional Comptroller, Karnataka State Road Transport Corp. vs.

M. G. Vittal Rao (2012) 1 SCC 442]. Thus, a disciplinary proceeding

and a criminal prosecution can always proceed simultaneously and

perhaps come to a separate and different conclusion.

15. I find that the impugned order of the Disciplinary Authority contains

reasons and has been arrived at after considering relevant evidence.

There is nothing unreasonable nor perverse nor irrational in the

impugned order. The enquiry has been conducted fairly and objectively.

The impugned order is a reasoned order which takes into consideration

the evidence adduced before the authorities. There has been no

unfairness in the passing of the impugned order. I also find that there

has been no violation of the principles of natural justice. The

authorities cited on behalf of the petitioner are inapposite and

distinguishable on facts. It is true that in some cases employees

postpone or defer disciplinary proceedings pending a decision in any

criminal trial but it cannot be said that the principles of natural justice

require an employer must always await the final decision of the

criminal court. In Ajit Kumar Nag v. General Manager (PJ), Indian Oil

Corporation Ltd., Haldia and Ors, AIR 2005 SC 4217 it has been held as

follows:

11. As far as acquittal of the appellant by a criminal court is concerned, in our opinion, the said order does not preclude the Corporation from taking an action if it is otherwise permissible. In our judgment, the law is fairly well settled. Acquittal by a criminal court would not debar an employer from exercising power in accordance with the Rules and Regulations in force. The two proceedings, criminal and departmental, are entirely

different. They operate in different fields and have different objectives. Whereas the object of criminal trial is to inflict appropriate punishment on the offender, the purpose of enquiry proceedings is to deal with the delinquent departmentally and to impose penalty in accordance with the service rules. In a criminal trial, incriminating statement made by the accused in certain circumstances or before certain officers is totally inadmissible in evidence.

16. Moreover, acquittal in the criminal case cannot always invariably be

a ground for interfering with the order of punishment imposed by the

disciplinary authority. As a proposition of law an order of dismissal

can be passed even if the delinquent official had been acquitted of the

criminal charges, Southern Railway Officers Association and Anr. Vs.

Union of India and Ors. (2009) 9 SCC 24.

17. I also find from the order passed in the criminal proceedings that the

witnesses who were examined before the Court had either forgotten

the facts or were unable to adduce any evidence before the Criminal

Court. I also find that the criminal proceedings were pending since

1993 and were ultimately concluded in 2012. In the criminal

proceedings there were some discrepancies noted in the statements

made of the witnesses and that the witnesses were unable to recollect

the facts and were unable to give evidence for some reason or another.

In fact the prosecution failed to make out a case primarily due to lack

of evidence. On the contrary, the disciplinary proceedings were

conducted within a reasonable time and after considering all the

evidence before the authorities. Hence, I am of the view that the there

are no grounds to have the disciplinary proceedings interfered with

even though the petitioner has been acquitted in the criminal

proceedings Sashi Bhusan Prasad Vs. Inspector General, CISF (2019) 7

SCC 797, Deputy Inspector General of Police and Anr. Vs. S.

Samuthiram (2013) 1 SCC 598.

18. I find that the reliefs in the writ petition were for stay of the

departmental proceedings. However, in view of the subsequent events

the petitioner had filed a supplementary affidavit to bring on record

the order of the Criminal Court and had also prayed for post retiral

benefits. In view of the fact that this petition has been pending for

more than two decades, I choose to deal with the merits of the

supplementary affidavit after having given an opportunity to the

respondents to deal with the same. I am of the view that a Court is

entitled to take note of subsequent events and decide the matter in

view of those events.

19. On the aspect of further payment, I find that the petitioner is not a

"member" under the Coal Mines Pension Scheme, 1998, since the

petitioner had not filled an option form in accordance with law.

Moreover, no contribution under Clause (b), (c), (d) & (e) of para 3 of

CMPS 1998 Scheme had been deducted or deposited by the petitioner.

As such, the petitioner did not become entitled to any amount on

account of pension. The petitioner had already been paid a sum of

Rs.7,87,041/- which has been received by the petitioner on 8th July,

2008. It was further submitted on behalf of the respondent authorities

that under the Coal Mines Family Pension Scheme, 1971, the date of

appointment of the petitioner was 11th December, 1965 and the

petitioner was not a member on that date. Thereafter, an option was

given to all excluded members to opt to join the above scheme but the

petitioner did not opt for the pension scheme within the stipulated

time period as well as the extended time period nor did the petitioner

submit an option form being PS1, PS3, PS4 during his service period.

The last option given to all employees was on 5th March, 2009 which

the petitioner did not avail. Hence, on this account I am of the view

that no amount is due and payable to the petitioner.

20. For the foregoing reasons, I find no merit in the writ petition. WPA

17095 of 2002 is dismissed. Interim orders if any stand vacated.

However, there shall be no order as to costs.

(Ravi Krishan Kapur, J.)