Rajvir Singh vs Union Of India & Ors
2016 Latest Caselaw 1566 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

+                          WP(C) No. 1466/2016


%                              Date of Decision: 26th February, 2016


         RAJVIR SINGH                                   ...Petitioner
                  Through :      Mr.Prakash Chandra, Advocate


                     Versus

         UNION OF INDIA & ORS                            ...Respondents
                  Through :

         CORAM:
         HON'BLE MR. JUSTICE SANJIV KHANNA
         HON'BLE MR. JUSTICE NAJMI WAZIRI

SANJIV KHANNA, J.

1. Rajvir Singh, the petitioner was issued charge-sheet dated 8th May,

2000 on the following charge:

"While working under Senior Divisional Electrical Engineer (TRS), Tughlakabad on 09.07.1999 at about 9.30 a.m. when Shri A.K.Garg, Senior Divisional Electrical Engineer (TRS), Tughlakabad had reached at Loco shed, committed misconduct of beating him and attacked him by throwing his chappal (sleepers) on his head & abused him and threatened to kill him."

2. The enquiry officer came to the conclusion that the article of charge

was not proved and was in fact, fabricated. The disciplinary authority

disagreed and issued a disagreement note and after considering the

petitioner's reply and relying on material on record, imposed penalty

of removal from service with effect from 2nd September, 2003. The

appellant authority by its order dated 3rd February, 2004, preferred to

take a sympathetic view and directed that the petitioner should be

reinstated in service on minimum pay, and directed withholding of

increments for two years without permanent effect.

3. The petitioner did not challenge the aforesaid order of the appellate

authority. Thus, the same has attained finality.

4. A criminal case was also instituted against the petitioner and other

employees of Electric Locoshed, Western Railway, Tughlakabad, New

Delhi vide FIR No.409/1999 registered at Police Station Okhla

Industrial Area, under Sections 323/341/186/353 of the Indian Penal

Code, 1860 on the allegation that they had demonstrated, shouted

slogans and in furtherance of their common intention, wrongfully

restrained / confined officers of the loco-shed and that they used

criminal force to obstruct public servants from discharging their

duties. The petitioner it was alleged had physically assaulted Ashok

Kumar Garg, Senior Divisional Electrical Engineer (TRS),

Tughlakabad. The prosecution lingered on and had remained pending

for more than 10 years, before being decided by the judgment dated

15.09.2010. Ashok Kumar Garg, who had appeared as PW-3, testified

and affirmed slogan shouting by a mob who had also indulged in

beating the doors and disrupting work. He and his colleagues were

confined in his room since morning and power supply of the

administration block was switched off. This had resulted in delay in

outage of locomotives on line for working trains. It is, however,

highlighted that A.K. Garg did not state that the accused were the

persons involved or a part of the mob. Other witnesses had also

testified about the occurrence, but did not identify the accused as the

persons responsible. In view of the aforesaid evidence, the

Metropolitan Magistrate by his judgment dated 15th September, 2010,

held that it could not be established with certainty that the accused

facing prosecution were involved in the incident and had wrongly

confined the public servants. The prosecution must strictly prove the

offence alleged and had failed to do so and accordingly, the accused

including the petitioner, were acquitted from the charges giving them

benefit of doubt.

5. Encouraged by this order of acquittal, the petitioner made a

representation dated 9th May, 2011, stating that he should be

exonerated from all charges levelled against him in the disciplinary

proceedings and the entire period, subject matter of the order of

penalty, should be treated as spent on duty with consequential

benefits. By letter dated 16th November, 2011, the petitioner was

informed that the period of removal from service, i.e., 2nd September,

2003 to 3rd February, 2004 when he was reinstated pursuant to the

decision taken by the appellate authority, has been treated as dies non

in terms of Rule 1343 of the Indian Railway Establishment Code (FR-

54).

6. We would observe that this letter dated 16th November, 2011 merely

reiterated the earlier decision dated 3rd February, 2004, and the effect

of the said reinstatement in terms of Rule 1343 of the Indian Railway

Establishment Code (FR-54). It did not constitute a fresh cause of

action or impose any new penalty. However, the request that the order

of penalty should be revisited was rejected.

7. Reading of the disciplinary authority's order would indicate that the

said authority while imposing punishment, had recorded that the

petitioner had accepted in his statement before Ex- Enquiry Officer Dr

A.M.Saxena on 4th January, 2001, that physical quarrel had taken

place between him and A.K Garg and that he had beaten A.K. Garg

with his slipper, when the latter had protested and asked him not to use

the open area as a bathroom. It is obvious that orders, subject matter of

the disciplinary proceedings, had proceeded on their own facts and

evidence on record. Moreover, the standard of proof in criminal and

disciplinary proceedings is different. In departmental proceedings, the

standard of proof required is preponderance of probabilites, whereas in

a criminal case, the charge has to be proved by the prosecution beyond

reasonable doubt. Evidence adduced and produced by the parties in

each proceeding - departmental, civil or criminal has to be examined

independently. Admissions made by witnesses in the other proceeding

can be confronted. Thus there is no incongruity in the two

proceedings. In criminal proceedings, evidence which is inadmissible

as per the Evidence Act has to be excluded. Albeit, in a departmental

proceeding, such evidence/material may be accepted and taken on

record and considered.

8. Counsel for the petitioner has relied upon Capt. M. Paul Anthony Vs.

Bharat Gold Mines Ltd. And Anr. (1999) 3 SCC 679, which we

perceive and specifically records, was decided on its own peculiar

facts. This decision pertinently notices the distinction between nature

of evidence and nature of proof in departmental proceedings and

criminal proceedings.

9. In the factual matrix of the present case, we do not think there is any

ground or reason to interfere with the impugned order dated 16th

September, 2015 passed by the tribunal, dismissing OA.No.37/2012

and order dated 6th November, 2015 dismissing RA.No.280/2015.

(SANJIV KHANNA) JUDGE

(NAJMI WAZIRI) JUDGE February 26th, 2016 ssn