Sajjan Singh Grewal vs Delhi Transport Corporation And ...
2011 Latest Caselaw 4252 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

+             WRIT PETITION (CIVIL) NO. 1990 OF 2011

                                        Reserved on : 5th July, 2011
%                                 Date of Decision: 1st September, 2011

SAJJAN SINGH GREWAL                                   ....Petitioner
              Through               Mr. S.N. Pandey, Advocate.

                     VERSUS

DELHI TRANSPORT CORPORATION AND ORS.
                                      ...Respondents
             Through   Mr. Ajit Nagar & Mr. S.K.
                         Bansal, Advocates.

              WRIT PETITION (CIVIL) NO. 311 OF 2011

DELHI TRANSPORT CORPORATION            ....Petitioner
             Through   Mr. Ajit Nagar & Mr. S.K.
                         Bansal, Advocates.

                     VERSUS

SAJJAN SINGH GREWAL                                    ....Respondent
              Through               Mr. S.N. Pandey, Advocate

CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE SANJIV KHANNA

1. Whether Reporters of local papers may be allowed to see the judgment?
2. To be referred to the Reporter or not ?                        Yes.
3. Whether the judgment should be reported in the Digest ?        Yes.

SANJIV KHANNA, J.

These two writ petitions arise out of the order dated 20th

October, 2010 passed by the Central Administrative Tribunal,

Principal Bench (for short, the tribunal) in O.A.No.1446/2010 filed

by Sajjan Singh Grewal (hereinafter referred to as the „employee‟)

against the Delhi Transport Corporation (hereinafter referred to as the

„employer‟).

2. By the impugned decision dated 20th October, 2010, the

tribunal has quashed the order dated 31st July, 1997 whereby the

employee was removed from service of the employer and the letter

dated 9th June, 2009 rejecting the request of the employee for

reinstatement. The tribunal has accordingly directed that the

employee should be reinstated in service by the employer. Aggrieved,

the employer has filed W.P. (C) No.311/2011. The employee has filed

W.P.(C) No.1990/2011 against the findings recorded by the tribunal

that employee would not be entitled to back wages as he has not

worked from 31st July, 1997. However, the said period is to be

counted/calculated for the purpose of granting promotion/increments.

3. The employee was working as a Security Guard and was posted

at Okhla Depot-II. On 13th August, 1996, when the employee reported

for duty, Havaldar Balbir Singh took him to the police station-

Sriniwaspuri. He was arrested in FIR No.818/1996 registered under

Sections 379/411 and 34 Indian Penal Code, 1890. The allegation

against the employee and three others, namely, Raghubir Singh,

Gulam Mustafa and Jaswant Singh was that they had conspired to

steal aluminum window frames of the employer.

4. The employee was arrested, but subsequently was released on

bail after several days. The employee was placed under suspension on

26th August, 1996 and departmental proceedings were initiated against

him on the basis of the charge sheet dated 16 th September, 1996. The

charges against him were as under:-

"Charge :

1. In the night of 11-8-96 the police of PS- Sukhdev Vihar apprehended a TSR No.4708 driven by Sh. Gulam Mustafa while carrying Aluminium window frames. On enquiry he told that he has purchased it from the Security Guard of DTC Printing Press namely Raghubir Singh and Sajjan Singh, who had stolen the same.

2. You remain in police custody in relation with the above said case and a case U/S 379/411 IPC was registered against you but you concealed this information and did not inform the department in time and thus you have concealed the truth."

5. The employee contested the proceedings before the Inquiry

Officer. The Inquiry Officer by his report came to the following

conclusion:-

"Conclusion : Complete file and document perused and the undersigned reached to the following conclusion.

1. In respect Charge No.1:As submitted by the prosecution Shri Hari Ram stated in his statement that on 13.8.96 when he was on duty, he was

informed by the Security guard that on 11.8.96 at night there was a theft in Printing Press he checked register etc. and found Shri Raghbir Singh security guard was on duty. For inquiry he went to Police post Sukhdev Vihar, with Depot Manager and Vigilance Team. The IO of the case ASI Shri Patram informed that Sajjan Kumar Security Guard is also involved in the case send him for inquiry. Prosecution witness Shri Balbir Singh and Manohar Lal have also verified this fact. On enquiry from Shri Rahubir Singh and Kabari, they informed that regarding Sajjan Singh and police called Shri Sajjan Singh for inquiry. On perusal of the case FIR No.DD 22-A dated 12.8.96 the name of Sajjan Kumar is mentioned therein. The defence witness Shri Kartar Singh son of Shri Sarop Singh resident of village and Post Shashana, District Rohtak has also stated in his statement dated 11.8.96 that at night about 01.00 he changed the water with Sajjan Singh which is not true on the facts of the case, as the defence witness and charged officials could not produce any strong proof in support of their statements. However, on perusal of the Police file and copy of FIR, it is clear that the theft case is registered against charged official. Therefore, the allegations leveled in charge No.1 are proved.

2. In respect of Charge No.2 Prosecution has proved that the name of Sajjan Singh was narrated by Shri Raghubir Singh and Shri Mustafa Kabari in the theft case, a case under Section 379/411 IPC was registered against him. Photocopy of the same is available on case file but to state that he has not informed the department in time has concealed the facts, is not correct on the basis of facts because the charge officials was arrested on 13.8.96 from his duty and this fact was given in writing to the department by Shri Balbir Singh therefore on duty case this cannot say that the department has no knowledge and charged official has concealed

this fact. Therefore in the absence of any solid proof the charge No.2 levelled in the charge sheet against the charged officials is not proved. Therefore the facts came into light and on the basis of documents available on record, the charge No.1 is proved against the charged officials, however the charge No.2 is without any solid proof and is not proved."

6. The inquiry report was sent to the employee for

comment/response and after receiving his explanation, a show cause

notice dated 26th June, 1997 was issued. After considering the inquiry

report and the explanation of the employee, the disciplinary authority

vide its order dated 31st July, 1997 awarded punishment of removal

from service under clause 15(2)(vi) of the DRTA (Condition of

Appointment & Service) Regulation, 1952. The aforesaid order or

removal was not challenged by the employee in appeal, revision or by

way of filing a writ petition/application before the tribunal till 2010

when O.A.No.1446/2010 was filed.

7. In FIR No.818/1996, the Metropolitan Magistrate vide his

order dated 15th July, 2008 acquitted all the accused persons including

the employee in the said case. For the sake of convenience, the said

judgment is reproduced below:-

"1. Genesis of the prosecution case is that on 12.08.1996 at 2.00 a.m. at Mathura Road Near CRRI, all the accused persons in furtherance of their common intention were found in possession

of aluminium frames which were stolen from DTC printing press knowing the same to be stolen or have reasons to believe the same to be stolen and thus committed an offence.

2. After completion of investigation, challan under Section 379/411 Cr.P.C. was filed in the court on 01.08.1997 against all the accused for the offences alleged thereunder. All the accused were produced and were supplied copies of charge sheet and other documents. The court took cognizance of offence and summoned all the accused. Charge was framed on 02.01.2002 U/s 411/34 IPC was framed against all the accused person to which they pleaded not guilty.

3. To substantiate its case, prosecution has examined only four witnesses.

4. PW1 is Sh. Yograj Singh, who was working at the relevant time as ATI at DTC Okhla Depot and was telephoned by Security Guard named Balbir Singh at about 3.00 a.m on 12.08.1996. He has identified 31 full and 26 single frames of windows of DTC buses.

5. PW2 is Ct. Anand Singh. He states that he alongwith ASI Pat Ram while on patrolling reached mathura Road at 2.00 a.m night and on suspicion one TSR No.DL-1RB-4708 was stopped for checking and it found containing window frames of aluminum of buses and being driven by Gulam Mustafa. On interrogation it was found that he purchased these frames from Raghubir Singh, Security Guard, DTC Okhla for Rs.1400/-. PW2 alongwith ASI Pat Ram brought the TSR to DTC Depot, there Raghubir Singh met them and informed them of handing over these frames by another Security Guard Sajjan Singh to Gulam Mustafa. Accused Gulam Mustafa and Raghubir were arrested.

6. PW3 is HC Surender Kumar, who got the case registered on the basis of rukka and handed it over to Ct. Anand Singh.

7. PW4 Sh. Chattar Singh, is another formal witness, whose testimony is inconsequential.

8. Having heard ld. Counsel for all accused persons at length, I find that from the record, nothing incriminatory has emerged against accused persons. The case property is never produced at any point of time during trial nor recovery witnesses have been examined by prosecution for the reasons best known to prosecution. It is not established that all accused persons had with common intent possessed aluminum frames as stolen from DTC printing press. The statement of accused persons stood dispensed with.

9. Since nothing incriminatory against accused persons has surfaced during trial, he deserves to be acquitted of the charge.

10. In view of the above facts and circumstances, prosecution has not been able to prove the charges against the accused persons viz., Raghubir Singh, GulamMustafa, Jaswant Singh and Sajjan Singh and has been unsuccessful to connect the crime with accused persons, all the accused persons vis. Raghubir Singh, Gulam Mustafa, Jaswant Singh and Sajjan Singh stand acquitted. Bail bonds cancelled and sureties discharged. File be consigned to record room.

8. After the said judgment, the employee wrote a letter requesting

his reinstatement with full back wages as he was acquitted in the

criminal case. By letter dated 9th June, 2009, Sr. Manager (Security)

informed the employee that his services were terminated after holding

a departmental inquiry and, therefore, the fact that he had been

acquitted by the trial court on technical grounds did not justify

reinstatement. Relevant portion of the letter dated 9th June, 2009 reads

as under:-

"1. Reference your demand notice dated 8th April, 2009, you are informed that merely because you have been acquitted in the criminal case which acquittal is on technical ground (emphasis supplied) is not a ground to reinstate you with back wages. You are fully aware of the fact that your services were terminated as far back as on 31st July, 1997 after holding a departmental enquiry where you were held guilty of the charge. The criminal case has nothing to do with the departmental enquiry which concluded on 31st July, 1997. That order has become final. The order was not challenged in appeal or otherwise. Now after 12 years there cannot be any order of reinstatement much less with back wages.

2 to 4. The averments made in paras Nos. 2 to 4 need no reply. A perusal of the judgment shows that though it is proved on record the aluminum, windows of DTC were stolen and sold by you and Raghubir Singh, apparently the police authorities some how have not been able to bring all the evidence on record and therefore you have been acquitted. This acquittal has nothing to do with the termination. The termination order was passed after holding an enquiry.

5. The contents of para No.5 are wrong and hence denied. Your services were terminated on account of the fact that aluminum window

frames were stolen from DTC Printing Press by security Guard Raghubir Singh and you. The termination order is final and therefore at this stage no action is required."

9. Two questions arose before the tribunal. Firstly, whether the

original application filed by the employee in 2010 challenging the

order of removal dated 31st July, 1997 was barred by limitation and

what was the effect of the order of acquittal dated 15th July, 2008

passed by the Metropolitan Magistrate in the criminal case.

10. The first contention related to limitation was rejected by the

tribunal holding as under:-

"9. The preliminary objection of limitation was raised by Shri Garg. His contention is that the Applicant was removed from service vide order dated 31.7.1997 but he filed this OA on 21.4.2010 after about 12 years. Hence, the OA is liable to be dismissed on this ground alone. This was contested by the Counsel for the Applicant on the ground that the Respondents rejected vide the order dated 9.6.2009 the Applicants demand notice after his acquittal from the criminal case in the order dated 15.7.2008. We find, there is logic in the contention of the Counsel for the Applicant and agree with the same to the extent that the last cause of action being on 9.6.2009 when the Respondents letter rejecting Applicants claim for reinstatement was rejected, the OA filed on 21.4.2010 is well within the prescribed time limit. Thus, the objection of limitation is hereby rejected."

11. We do not subscribe and accept the aforesaid reasoning given

by the tribunal. It is well settled that departmental proceedings and

criminal proceedings are two separate and distinct proceedings. The

nature of proof in the two proceedings is distinct. Strict law of

evidence is not applicable to departmental proceedings and the

principle of preponderance of probabilities applies. In criminal

proceedings, law of evidence and principle of benefit of doubt are

applied. The order of removal dated 31st July, 1997 had attained

finality. The same was not challenged and questioned in revision,

appeal or by way of application before the tribunal. There is no

statutory provision or rule, which stipulates that the departmental

proceedings could be reopened after the decision of the criminal case.

In a criminal case, evidence is recorded before the Metropolitan

Magistrate and the matter is decided on the basis of the evidence

recorded by the Court. The question involved in the criminal trial

was whether or not the accused persons had committed any offence

under the Indian Penal Code and not whether or not the accused

should be allowed to remain in service.

12. It is not possible to agree that the letter dated 9th June, 2009

will revive limitation and constitute a fresh cause of action. The

employee had made a representation and by letter dated 8th April,

2009, the employer had replied to the same. The reply given vide

letter dated 9th June, 2009 cannot be regarded as a fresh cause of

action to challenge the order or removal. The said reply merely

reiterates that the order of removal was passed way back on 31st July,

1997 and the same was passed after holding a departmental inquiry in

which the employee was found guilty of charge.

13. As per Section 21 of the Administrative Tribunals Act, 1985,

an original application before the tribunal has to be filed within one

year from the date on which cause of action arises. The said Section

reads as under:-

"21. Limitation.--(1) A Tribunal shall not admit an application,--

(a) in a case where a final order such as is mentioned in clause (a) of sub-section (2) of Section 20 has been made in connection with the grievance unless the application is made, within one year from the date on which such final order has been made;

(b) in a case where an appeal or representation such as is mentioned in clause (b) of sub-section (2) of Section 20 has been made and a period of six months had expired thereafter without such final order having been made, within one year from the date of expiry of the said period of six months.

(2) Notwithstanding anything contained in sub- section (1), where--

(a) the grievance in respect of which an application is made had arisen by reason of any order made at any time during the period of three years immediately preceding the date on which the jurisdiction, powers and authority of the Tribunal become exercisable under this Act in respect of the matter to which such order relates; and

(b) no proceedings for the redressal of such grievance had been commenced before the said date before any High Court,

the application shall be entertained by the Tribunal if it is made within the period referred to in clause (a), or, as the case may be, clause (b) of sub-section (1) or within a period of six months from the said date, whichever period expires later.

(3) Notwithstanding anything contained in sub- section (1) or sub-section (2), an application may be admitted after the period of one year specified in clause

(a) or clause (b) of sub-section (1), or, as the case may be, the period of six months specified in sub-section (2), if the applicant satisfies the Tribunal that he had sufficient cause for not making the application within such period."

14. The employee can file an application for condonation of delay.

In the present case, no application for condonation of delay was filed

by the employee. The tribunal, therefore, was not right in ignoring

and rejecting the objection raised by the employer regarding

limitation. Reference in this regard can be made to the decision of

Ramesh Chand Sharma v. Udham Singh Kamal, (1999) 8 SCC 304,

wherein it has been held as under :

"7. ......It was open to the first respondent to make proper application under Section 21(3) of the Act for condonation of delay and having not done so, he cannot be permitted to take up such contention at this late stage. In our opinion, the OA filed before the Tribunal after the expiry of three years could not have been admitted and disposed of on merits in view of the statutory provision contained in Section 21(1) of the Administrative Tribunals Act, 1985. The law in this behalf is now settled (see Secy. to Govt. of India v. Shivram Mahadu Gaikwad)."

15. In Y. Ramamohan v. Govt. of India, (2001) 10 SCC 537, it has

been held that the question whether the discretion of the court or the

tribunal should be exercised for condoning the laches, would depend

upon the facts and circumstances of each case. In the instant case the

Supreme Court has observed that even if it assumed that the petitioner

came to know about the gradation list in 1986, there was no

justification for not approaching the appropriate authority within

reasonable time and having waited for more than three years as they

had approached in the year 1990, the bar of limitation was applicable.

16. In State of Orissa v. Chandra Sekhar Mishra, (2002) 10 SCC

583 it has been opined thus :

"4. In our opinion, there were two fundamental errors in that relief being granted to the respondent. Firstly, the services of the respondent were terminated with effect from 31-1-1978 and the respondent did not approach the Tribunal within the period of limitation provided by the statute. On this ground alone, the Tribunal should not have entertained the appeal. Secondly, the respondent was appointed on 1-2-1972 on contract basis for a period of three years. This period of contract was extended up to 31-1-1978. When the respondent was only a contractual employee, there could be no question of his being granted the relief of being directed to be appointed as a regular employee."

17. In E. Parmasivan v. Union of India, (2003) 12 SCC 270, it has

been held that the tribunal was right in holding that the original

application filed by the petitioner was barred by limitation as

petitioner would have raised objection regarding the anomaly in their

scale of pay in 1976, at that point of time. Even thereafter when they

retired from the service they could have made the claim for pay

fixation. The petitioner did not take any step in that regard till 1995.

Hence, no relief could be granted to them.

18. In C. Jacob v. Director of Geology And Mining, (2008) 10

SCC 115, the Supreme Court with regard to the delayed

representations, taking a hypothetical example, expounded as under :

"8. Let us take the hypothetical case of an employee who is terminated from service in 1980. He does not challenge the termination. But nearly two decades later, say in the year 2000, he decides to challenge the termination. He is aware that any such challenge would be rejected at the threshold on the ground of delay (if the application is made before tribunal) or on the ground of delay and laches (if a writ petition is filed before a High Court). Therefore, instead of challenging the termination, he gives a representation requesting that he may be taken back to service. Normally, there will be considerable delay in replying to such representations relating to old matters. Taking advantage of this position, the ex- employee files an application/writ petition before the tribunal/High Court seeking a direction to the employer to consider and dispose of his representation. The tribunals/High Courts routinely allow or dispose of such applications/petitions (many a time even without notice to the other side), without examining the matter on merits, with a direction to consider and dispose of the representation.

9. The courts/tribunals proceed on the assumption, that every citizen deserves a reply to his representation. Secondly, they assume that a mere direction to consider and dispose of the representation does not involve any "decision" on rights and obligations of parties. Little do

they realise the consequences of such a direction to "consider". If the representation is considered and accepted, the ex-employee gets a relief, which he would not have got on account of the long delay, all by reason of the direction to "consider". If the representation is considered and rejected, the ex-employee files an application/writ petition, not with reference to the original cause of action of 1982, but by treating the rejection of the representation given in 2000, as the cause of action. A prayer is made for quashing the rejection of representation and for grant of the relief claimed in the representation. The tribunals/High Courts routinely entertain such applications/petitions ignoring the huge delay preceding the representation, and proceed to examine the claim on merits and grant relief. In this manner, the bar of limitation or the laches gets obliterated or ignored.

10. Every representation to the Government for relief, may not be replied on merits. Representations relating to matters which have become stale or barred by limitation, can be rejected on that ground alone, without examining the merits of the claim. In regard to representations unrelated to the Department, the reply may be only to inform that the matter did not concern the Department or to inform the appropriate Department. Representations with incomplete particulars may be replied by seeking relevant particulars. The replies to such representations, cannot furnish a fresh cause of action or revive a stale or dead claim.

11. When a direction is issued by a court/tribunal to consider or deal with the representation, usually the directee (person directed) examines the matter on merits, being under the impression that failure to do so may amount to disobedience. When an order is passed considering and rejecting the claim or representation, in compliance with direction of the court or tribunal, such an order does not revive the stale claim, nor amount to some kind of "acknowledgement of a jural relationship" to give rise to a fresh cause of action."

19. In Union of India v. M.K. Sarkar, (2010) 2 SCC 59, reference

is made to the decision in C. Jacob (supra) and it has been held as

under :

15. When a belated representation in regard to a "stale" or "dead" issue/dispute is considered and decided, in compliance with a direction by the court/tribunal to do so, the date of such decision cannot be considered as furnishing a fresh cause of action for reviving the "dead" issue or time-barred dispute. The issue of limitation or delay and laches should be considered with reference to the original cause of action and not with reference to the date on which an order is passed in compliance with a court's direction. Neither a court's direction to consider a representation issued without examining the merits, nor a decision given in compliance with such direction, will extend the limitation, or erase the delay and laches.

16. A court or tribunal, before directing "consideration" of a claim or representation should examine whether the claim or representation is with reference to a "live" issue or whether it is with reference to a "dead" or "stale" issue. If it is with reference to a "dead" or "stale" issue or dispute, the court/tribunal should put an end to the matter and should not direct consideration or reconsideration. If the court or tribunal deciding to direct "consideration" without itself examining the merits, it should make it clear that such consideration will be without prejudice to any contention relating to limitation or delay and laches. Even if the court does not expressly say so, that would be the legal position and effect."

20. There is another way of looking at the matter. Order of removal

dated 31st July, 1997 has attained finality and has been implemented.

The original application filed by the employee challenging the said

letter is clearly barred by limitation and should have been rejected as

no application for condonation of delay was filed. The employee,

however, can challenge the letter dated 9th June, 2009 written by Sr.

Manager (Security), which has been quoted above. Only the said

letter would be made subject matter of challenge before the tribunal

and examined by the tribunal. We fail to understand how and in what

manner the averments made in the said letter are contrary to law and

can be set aside. Paragraph 1 of the said letter records the factual

position that the employee was removed from service after

departmental inquiry, which had concluded on 31 st July, 1997. There

is no factual dispute on the said aspect and the fact that no appeal or

otherwise the said removal was challenged for 12 years. What is the

effect of the order of acquittal dated 15th July, 2008 passed in criminal

case, is a question of law. The question whether the acquittal was on

technical ground or on merits is another aspect, which raises a

question of law. The third aspect is whether the said acquittal, if on

technical ground and not on merits, would have any effect. In the

present case, departmental proceedings attained finality and were not

challenged even though the employee was facing criminal

prosecution. He participated in the departmental proceedings. In these

circumstances, it cannot be said that the departmental proceedings

and the order of removal stand vitiated or are a nullity on the ground

that the employee had been acquitted in the criminal trial. The

tribunal, in this connection, has relied upon Captain M. Paul

Anthony Vs. Bharat Gold Mines Ltd. and Another, (1999) 3 SCC

679, G.M. Tank Vs. State of Gujarat and Another (2006) 5 SCC

446. In Captain M. Paul Anthony (supra), the Supreme Court was

considering whether the departmental proceedings and criminal

proceedings can continue simultaneously. In that regard principles

were laid down. The Supreme Court was not concerned with the

effect of the order of acquittal passed by the criminal court even when

departmental proceedings had been held and culminated in an order

of punishment. After referring to the various judgments it was

concluded as under:-

"22. The conclusions which are deducible from various decisions of this Court referred to above are:

(i) Departmental proceedings and proceedings in a criminal case can proceed simultaneously as there is no bar in their being conducted simultaneously, though separately.

(ii) If the departmental proceedings and the criminal case are based on identical and similar set of facts and the charge in the criminal case against the delinquent employee is of a grave nature which involves complicated questions of law and fact, it would be desirable to stay the departmental proceedings till the conclusion of the criminal case.

(iii) Whether the nature of a charge in a criminal case is grave and whether complicated questions of fact and law are involved in that case, will depend upon the nature of offence, the nature of the case launched against the employee on the basis of evidence and material collected against him during investigation or as reflected in the charge-sheet.

(iv) The factors mentioned at (ii) and (iii) above cannot be considered in isolation to stay the departmental proceedings but due regard has to be given to the fact that the departmental proceedings cannot be unduly delayed.

(v) If the criminal case does not proceed or its disposal is being unduly delayed, the departmental proceedings, even if they were stayed on account of the pendency of the criminal case, can be resumed and proceeded with so as to conclude them at an early date, so that if the employee is found not guilty his honour may be vindicated and in case he is found guilty, the administration may get rid of him at the earliest."

21. The decision in the case of G.M. Tank (supra) deals with the

peculiar situation where the same witnesses had appeared in the

departmental proceedings and in the criminal case and two contrary

finding were given in the disciplinary proceedings and the criminal

case. In this regard, observations of the Supreme Court in paragraphs

30 and 31 have to be read along with observations made in paragraph

20. In the said paragraph, the Supreme Court referred to the evidence

against the employee-government servant in the departmental

proceedings. The said paragraph reads as under:-

"20. It is thus seen that this is a case of no evidence. There is no iota of evidence against the appellant to

hold that the appellant is guilty of having illegally accumulated excess income by way of gratification. The respondent failed to prove the charges levelled against the appellant. It is not in dispute that the appellant being a public servant used to submit his yearly property return relating to his movable and immovable property and the appellant has also submitted his return in the year 1975 showing his entire movable and immovable assets. No query whatsoever was ever raised about the movable and immovable assets of the appellant. In fact, the respondent did not produce any evidence in support of and/or about the alleged charges levelled against the appellant. Likewise, the criminal proceedings were initiated against the appellant for the alleged charges punishable under the provisions of the PC Act on the same set of facts and evidence. It was submitted that the departmental proceedings and the criminal case are based on identical and similar (verbatim) set of facts and evidence. The appellant has been honourably acquitted by the competent court on the same set of facts, evidence and witness and, therefore, the dismissal order based on the same set of facts and evidence on the departmental side is liable to be set aside in the interest of justice."

22. On the question of difference between the departmental

proceedings and the effect thereof on the proceeding in view of the

judgment of acquittal, the Supreme Court in Divisional Controller,

Gujarat SRTC Vs. Kadarbhai J. Suthar (2007) 10 SCC 561 has

observed as under:-

"5. The orders of both the learned Single Judge and the Division Bench suffer from several infirmities. First and foremost, mere acquittal in a criminal case does not have the effect of nullifying the decision taken in the departmental proceedings. They operate in different

areas of considerations. This position was recently highlighted by a three-Judge Bench of this Court in NOIDA Entrepreneurs' Assn. v. NOIDA."

23. In NOIDA Entrepreneurs Association Vs. NOIDA

(2007) 10 SCC 385, it has been held as under:-

"11. A bare perusal of the order which has been quoted in its totality goes to show that the same is not based on any rational foundation. The conceptual difference between a departmental enquiry and criminal proceedings has not been kept in view. Even orders passed by the executive have to be tested on the touchstone of reasonableness. [See Tata Cellular v. Union of India and Teri Oat Estates (P) Ltd. v. U.T., Chandigarh.] The conceptual difference between departmental proceedings and criminal proceedings have been highlighted by this Court in several cases. Reference may be made to Kendriya Vidyalaya Sangathan v. T. Srinivas, Hindustan Petroleum Corpn. Ltd. v. Sarvesh Berry and Uttaranchal RTC v. Mansaram Nainwal.

"8. ... The purpose of departmental enquiry and of prosecution are two different and distinct aspects. The criminal prosecution is launched for an offence for violation of a duty, the offender owes to the society or for breach of which law has provided that the offender shall make satisfaction to the public. So crime is an act of commission in violation of law or of omission of public duty. The departmental enquiry is to maintain discipline in the service and efficiency of public service. It would, therefore, be expedient that the disciplinary proceedings are conducted and completed as expeditiously as possible. It is not, therefore, desirable to lay down any guidelines as inflexible rules in which the departmental proceedings may or may not be stayed pending trial in criminal case against the delinquent officer. Each case requires to

be considered in the backdrop of its own facts and circumstances. There would be no bar to proceed simultaneously with departmental enquiry and trial of a criminal case unless the charge in the criminal trial is of grave nature involving complicated questions of fact and law. Offence generally implies infringement of public duty, as distinguished from mere private rights punishable under criminal law. When trial for criminal offence is conducted it should be in accordance with proof of the offence as per the evidence defined under the provisions of the Indian Evidence Act, 1872 [in short „the Evidence Act‟]. Converse is the case of departmental enquiry. The enquiry in a departmental proceedings relates to conduct or breach of duty of the delinquent officer to punish him for his misconduct defined under the relevant statutory rules or law. That the strict standard of proof or applicability of the Evidence Act stands excluded is a settled legal position. ... Under these circumstances, what is required to be seen is whether the departmental enquiry would seriously prejudice the delinquent in his defence at the trial in a criminal case. It is always a question of fact to be considered in each case depending on its own facts and circumstances."

A three-Judge Bench of this Court in Depot Manager, A.P. SRTC v. Mohd. Yousuf Miya (SCC pp. 704-05, para 8) analysed the legal position in great detail on the above lines.

X X X X

16. The standard of proof required in departmental proceedings is not the same as required to prove a criminal charge and even if there is an acquittal in the criminal proceedings the same does not bar departmental proceedings. That being so, the order of the State Government deciding not to continue the

departmental proceedings is clearly untenable and is quashed. The departmental proceedings shall continue."

24. In view of the aforesaid discussion, we hereby allow W.P.(C)

311/2011 filed by the Delhi Transport Corporation and the impugned

order dated 20th October, 2010 passed by the tribunal directing

reinstatement of employee is quashed. Consequently, W.P.(C)

1990/2011 filed by the employee is dismissed. No costs.

-sd-

(SANJIV KHANNA) JUDGE

-sd-

( DIPAK MISRA ) CHIEF JUSTICE

SEPTMEBER 1, 2011 NA