Delhi High Court
Satish Sachiv Baba vs Cpwd on 1 April, 2022
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment reserved on: 16.10.2019
Date of decision: 01.04.2022
+ W.P.(C) No. 1240/2011
SATISH SACHIV BABA ..... Petitioner
Through: Ms. Deepali Gupta, Advocate.
versus
CPWD (M.R.D.) ..... Respondent
Through: Mr. Ripu Daman Bhardwaj, CGSC
with Mr.T.P.Singh, Advocates.
CORAM:
HON'BLE MS. JUSTICE ANU MALHOTRA
JUDGMENT
ANU MALHOTRA, J
1. The petitioner, vide the present petition seeks the setting aside
of the impugned judgment/order dated 20.10.2020 of the Presiding
Officer, Labour Court-XIX, Karkardooma Courts, Delhi in LIR
No.213 of 2006/ LIR No.221 of 2010/ Unique Case
I.D.No.02402C0042922002 titled as "Sh. Satish Sachiv Baba Vs.
C.P.W.D. (M.R.D.)" and also seeks the issuance of a writ of certiorari
against the order dated 08.03.2000 of the Executive Engineer, PWD
Division, whereby, the services of the petitioner had been terminated
apart from a prayer made by the petitioner seeking that the respondent
be directed to take the petitioner back into service with back wages
and all other consequential benefits.
Signature
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By:SUMIT GHAI
Signing
Date:01.04.2022
16:42:25
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2. The reference made by the Secretary (Labour), Government of
NCT of Delhi vide Labour notification No. S-11011/2/75/DK (1A) of
the industrial dispute between the petitioner and the CPWD (M.R.D.),
was as under:-
"Whether services of Satish Sachiv Baba S/o Sh.Ratan
Lal have been terminated illegally and/ or unjustifiably
by the management and if so, to what sum of money as
monetary relief alongwith other consequential benefits
in terms of existing laws/Govt. Notifications and to
what other relief is he entitled and what directions are
necessary in this respect."
3. On service of notice of the reference, the petitioner had filed the
statement of claim praying for passing an award in his favour and
against the management with the direction to the management to
reinstate him in service with continuity of service, full back wages
along with consequential benefits and seeking a declaration that the
order of termination dated 10.03.2000 issued by the management was
illegal and unjustified.
4. The management contested the claim by filing the written
statement and on completion of pleadings in the matter, the issue
framed by the Presiding Officer, Labour Court-XIX on 12.09.2003
was "as per terms of reference".
5. The evidence was led by the workman and in as much as, it was
observed during the proceedings that there was a departmental inquiry
held before the termination of the claimant, the additional issue then
had been framed to the effect:-
"Additional Issue:- Whether enquiry conducted by the
management was proper and fair?",
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whereafter, the parties were given liberty to adduce evidence, which
was led by both sides.
6. An application for amendment was filed by the workman,
which was dismissed vide order dated 23.01.2009, however, in the
LPA No.243/2009 & CM. No. 7655 & 7871/2009 filed by the
workman before the Hon'ble Division Bench of this Court, the
workman was allowed to file the amended statement of claim which
was filed by the workman on 03.09.2009, wherein, he incorporated
that he was working w.e.f. 23.09.1980 and continuously worked
thereafter but due to some technical reasons and policy of government
a proper certificate for confirming the workman could not be issued
and he was confirmed w.e.f. 30.03.1991 and in the amended written
statement, the management stated that the workman was engaged as a
Beldar on the muster-roll in the year 1980 and was appointed as a
regular Beldar in the year 1991 who joined duty only on 15.04.1991
and in the statement of claim, the workman had admitted that he was
allowed to join duty on 16.04. 1991, in as much as, the submission
made in the amended claim was admitted by the management, no
additional issue was framed but the parties were given an opportunity
to adduce additional evidence, whereafter, additional evidence was
also led by the workman, though, no additional evidence was led by
the management thereafter.
7. As regards the additional issue framed to the effect whether the
enquiry conducted by the management was proper and fair, vide the
impugned order, the learned Presiding Officer, Labour Court-XIX,
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Karkardooma Courts, Delhi in LIR No.221 of 2010 held that the
management had conducted a proper and fair enquiry against the
workman and that there was nothing on the record even to suggest that
there had been any violation of the principles of natural justice and
that the workman had fully participated in the enquiry proceedings and
was duly assisted by the defence assistant who had fully cross
examined all witnesses of the Department and had also examined
defence witnesses and all written submissions had also been duly
considered by the Enquiry Officer.
8. The petitioner through the present petition has assailed this
finding of the learned Presiding Officer, Labour Court-XIX,
Karkardooma Courts, Delhi submitting to the effect that though the
petitioner had been permitted to present his case, the enquiry officer
had proceeded with a pre-decided mind as to its outcome in a biased
manner solely with a view to terminate the services of the petitioner
and had failed to consider the case of the petitioner on merits.
9. As regards the issue "as per the terms of reference" in relation
to the contention of the petitioner that his services had been illegally
terminated, it was submitted by the petitioner that he had been
acquitted by the criminal Court of the offences with which he had
been charged that is of the alleged commission of an offence
punishable under Section 342/34 of the Indian Penal Code, 1860 in
relation to which, the FIR No.191/91, PS Kashmere Gate had been
registered on 09.05.1991, in as much as, the petitioner had been
acquitted along with other co-workers vide judgment dated 04.12.1999
by the Court of the learned MM and that the management could thus,
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not have punished him on the basis of the enquiry proceedings in
relation to the very same incident of the date 09.05.1991 qua which
the petitioner had already been acquitted.
10. It was also submitted by the petitioner that the other three co-
accused in the FIR No.191/1991, PS Kashmere Gate who had been
suspended along with him from duty on 13.05.1991 in relation to FIR
No.191/1991, PS Kashmere Gate under Sections 342/34 of the Indian
Penal Code, 1860 had filed an Industrial Dispute bearing No.ID
562/93 challenging their termination and vide order dated 15.01.2001
in ID No.562/93, the termination of the other three workers i.e. Jagan
Nath, Rakesh and Charan Singh had been declared to be wrongful and
it was submitted by the petitioner herein that he however, had chosen
to file an appeal to the management seeking his reinstatement and that
pursuant to his negotiations with the management, the petitioner was
re-instated on 10.01.2000 to be terminated again on 10.03.2000 on the
basis of the findings of the Disciplinary Enquiry.
11. The disciplinary proceedings under Rule 14 of the Central Civil
Services (Classification, Control and Appeal) Rules, 1965 were
instituted against the petitioner, the Beldar posted in Sub-Division-V
and when subsequently in Sub-Division-IV of PWD Division No. VI
vide this office Memo No.5(2)/PWD-VI/DA/1995 dated 28.6.91 and
the articles of charge framed against the petitioner were to the effect:-
"Charge:
1. There is allegation of inciting and provoking the
employees posted in the Office at Jamuna Bazar on
9.5.91 under Division-24.
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2. Shri Satish, Beldar is alleged to have indulged into
unbecoming acts of misbehaviour of causing physical
and mental agony to Assistant Engineer Shri S.P.Garg
and other Junior Engineers with the help of other
employees at the place cited at Sl. No.1.
3. The above said Shri Satish Beldar is charged of
having remained absent without information and
permission from the work site on 9.5.91.",
and the statement of imputation of misconduct or misbehaviour
against the petitioner was to the effect:-
"Article-1:
Assistant Engineer-4, Division-24 lodged an FIR
with the P.S. Kashmere Gate vide letter No.
Camp/Division Office/ A.E.-4/ PD-24/ DP/2 dated
9.5.91 and according to which said Shri Satish, Beldar
is charged of inciting and provoking the staff present at
Jamuna Bazar Sub Division-4 at 9.30 A.M. and
picketed the employees from working and caused an
obstruction in the government work by declaring
himself as Secretary of the All India C.P.W.D.
Workers‟ Union. In addition to this the act of inciting
the staff for sit in Dharna is not only an unbecoming
act for a Govt. servant but is also a violation of CCS
Conduct Rules, 1964 and for which Shri Satish Beldar
in unbecoming of a govt. servant.
Article-2:
Shri Satish Beldar posted in Division-6 indulged
into abuses and physical intimidation along with Shri
Rakesh, Charan Singh and other workers against Shri
Garg, Assistant Engineer and Junior Engineers and
bolted the Sub Division Clerk Officer from outside and
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forced the above said officers inside the room and kept
them confined inside the room and also deprived them
of the facilities of power and water. Thus he kept on
abusing for about seven hours and did not allow Shri
Garg, Assistant Engineer to have water or toilet
facility and hang a garland of shoes outside the door of
the room. Such of the activities by Shri Satish Beldar
of insulting a Gazetted Officer and to make him feel
slighted and to cause mental agony is a proof of the
fact that said Shri Satish Beldar not only committed
violation of the CCS Conduct Rules, 1964 by his
aforesaid acts against a gazette officer but also
committed acts rendering him unbecoming of a
government servant.
Article-3:
Said Shri Satish Beldar is charged with the act
of absence from duty on 9.5.91 from his work site
without intimation and permission and his said act of
remaining absent from his place of duty and to cause
obstruction in the Govt. work by picketing other staff
members and causing physical and mental injury to a
Gazetted Officer is an act of grave misconduct and
thereby said Shri Satish Beldar has violated the CCS
Conduct Rules, 1964 and has rendered himself as
unbecoming of a Govt. servant."
12. Through the counter affidavit filed on behalf of the respondents,
the contentions raised by the petitioner were denied and it was
submitted to the effect that the petitioner who had been appointed as a
Beldar vide appointment letter No. E-5/119(O)/939 dated
30.3.1991 had joined the Department on 15.04.1991 and had
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illegally confined and manhandled Sh. S.P. Garg. Assistant Engineer,
PWD, Division-24 under whose Administrative Control the workman
was working and that an FIR was lodged against the workman Sh.
Satish Sachiv Baba, Beldar i.e. the petitioner herein on 09.05.1991
with the Kashmere Gate, Police Station as a consequence of which he
was arrested and was released on bail on 10.05.2001 and the case was
proceeded in the Court of the learned Metropolitan Magistrate, Delhi
and in the meanwhile the petitioner was charge sheeted by the
department on 28.06.1991 on account of his misbehavior under the
Central Civil Services (Conduct) Rules, 1964 and that though the
petitioner and his other co-workers were acquitted vide order dated
04.12.1999 and an enquiry committee was set up by the department
and enquiry proceedings were initiated and in as much as, the
workman represented to the management after his acquittal, as a result
of which he was re-instated on 10.1.2000 and continued working with
the management, in as much as the Articles I & II of the charges in the
Departmental Enquiry were proved, consequently the penalty of
removal from service was imposed on the workman under Rule 14 of
the Central Civil Services (Classification, Control and Appeal) Rules,
1965 in terms of the enquiry report dated 30.08.1994.
13. That the workman appealed to the management against the
against the dismissal order date 8.03.2000 under the Central Civil
Services (Conduct) Rules, 1964 which appeal was rejected by the
Superintending Engineer, PWD, Circle 2 (NCTD), New Delhi vide
letter dated 18.09.2000 and that the workman i.e. the petitioner herein
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filed a case against the management in the Court of the Labour
Tribunal, KKD Courts, New Delhi against his termination, whereafter,
the impugned order was passed by the learned Presiding Officer
Labour Court-XIX, Karkardooma Courts, Delhi holding to the effect
that a proper and fair enquiry had been conducted under Rule 14 of the
Central Civil Services (Classification, Control and Appeal) Rules,
1965.
14. Inter alia the respondent has submitted that the petitioner was
employed and not appointed as Beldar on purely temporary basis i.e.
on muster roll on 23.09.1981 and that the certificate issued by the
department was issued only to indicate the date of joining as Beldar on
muster roll only, which was not treated as date of appointment as WC
(work charge) staff in department. Inter alia it was submitted by the
respondent that the Enquiry Committee had followed all enquiry
procedures and charges against the petitioner of Articles I & II have
been proved. It was also submitted by the respondent that merely
because the petitioner was acquitted in the criminal trial was no
ground to set aside the Departmental Enquiry findings which had
conclusively established that the petitioner had committed misconduct
and thus, after a fair and proper enquiry held by the Department with
Articles I & II of the charge having been held to have been established
against him, he had been punished for his misbehavior by termination
of his service. The respondent has thus, submitted that the petitioner is
not entitled to the relief claimed by him.
15. Vide Enquiry report dated 30.08.1994, the Enquiry Officer,
Sh.S.K.Sharma after consideration of the evidence led by the
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Department and the petitioner herein, i.e. six witnesses of the
Department and five witnesses of the petitioner herein observed that
the departmental witnesses had given details of the events that took
place on 09.05.1991 and had pin pointed to the mis demeanor and
aggressive part played by the charged officer and had deposed to the
effect that Sh.S.P.Garg had been manhandled and was locked up and
gheraoed by several workers who were personally led by the charged
officer i.e. the petitioner herein and there was absolutely nothing on
the record to contradict the testimony and that the departmental
witnesses were cross examined at length and DWs were also examined
at length and there was not even a suggestion to the said witnesses that
they were deposing falsely to their knowledge nor it was so deposed
by any of the defence witnesses and that none of the defence witnesses
had also deposed to the effect that the charges against the charged
officer were false to their knowledge and at all. The Enquiry Officer
thus, held that the Articles I & II of the charge established though the
charge against the charged official put forth by Article III of his being
absent without leave was not accepted, in as much as, the absence had
been treated subsequently as casual leave which had been sanctioned.
16. The findings on the Articles I & II of the charge of imputation
against the petitioner vide the inquiry report dated 30.08.1994 are to
the effect:-
"ARTICLE-I OF CHARGE:
The only DW who was present on the spot at the
time of occurrence of the alleged events, is Shri Jai
Kishan. DW-5. He has deposed that it was the CO who led
the workers in the act of illegal confinement and
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manhandling as well as foul treatment by abusive
language to Shri S.P. Garg. DW-5 admitted that illegal
confinement, manhandling and foul treatment to Shri Garg
actually took place and that the leading role there in was
performed by the CO. That the events factually took place
under the leadership of the CO, is corroborated by the
evidence tendered by SWs. That the events, whatever they
by, were unpleasant and were under the leadership of the
CO, is pleaded by the CO himself in his written-brief. The
events have been testified to by SWs by personal
knowledge, but even if their evidence is assigned a
corroborative value only to support DW-5 Article-I of
charge is proved on the strength of DW-5 deposition and
CO‟s own claim to be the leader of the workers on the spot
in relation to the events of 9.5.91. Even the CO does not
claim in his written-brief that nothing untoward happened
that day that time. He has laid stress on certain
discrepancies in the descript on given by various
witnesses. Those are in respect of details and do not about
to or even tend to, saying that nothing untoward happened
or that the CO was not the leading force in person on the
spot.
Article-I of charge is proved.
ARTICLE-II OF CHARGE:
Here again, the reasoning of para above holds.
There is substantial and material evidence on record,
adduced during the Inquiry in presence of the CO, that
there was illegal confinement, manhandling and foul
treatment to Shri S.P. Garg and to a few Junior Engineers
along with him and that the same was under the personal
ladyship of the CO. There is no reason to doubt the
veracity of evidence tendered in the Inquiry in the presence
of the CO under keen cross- examination on his behalf, by
Shri S.P. Garg and other SWs. Even if their evidence is not
accorded primary value, the evidence in the Inquiry
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tendered by DW-5 Shri Jai Kishan is unambiguous in
supporting the charge against the CO and is corroborated
by the evidence tendered by SWs in presence of the CO, in
the Inquiry.
Written- briefs do not have the statute of „evidence‟. Even
in his written-brief, The CO does not claim that nothing
untoward happened on the day and on the spot mentioned
in the Charge-sheet and claims the he was personally
leading the workers that day, the that time as he did a
matter of his union duties in the past. It is only the
evidence adduce in the Inquiry in presence of the CO that
can be relied upon to sustain or reject a charge against the
CO. There is sufficient evidence on record, ever per DW-5
alone, to sustain the charge and there is absolutely no
evidence to the contrary on record.
Article-II of charge is proved."
17. Inter alia, the Enquiry Officer also gave general observations
and findings to the effect:-
"GENERAL OBSERVATION:
At no stage or point of time in the Inquiry, the
CO appeared to take the position that nothing
untoward happened or that he did not lead the
workers in the conflict against Shr. S.P.Garg, at all.
His emphasis all through was that Shr. Garg acted
unfair and harsh. That was not supported by any
evidence/material on record.
Allegations of personal malafides are to be
proved by leading evidence in the Inquiry. The Co
led no evidence at all, not even his own as a witness.
FINDINGS:
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Date:01.04.2022
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On the basis of documentary and oral evidence
add- used in the case before me and in view of the
reasons given above, I hold as under:
(i) The articles of Charge No.I & II against Shri
Satish are proved.
(ii) The Articles of Charge No.III against Shri
Satish is not maintainable."
18. The Disciplinary Authority i.e. the Executive Engineer, PWD
Division No.VI, PWD Rest House, Nangloi, Delhi vide order No.5(2)/
PWD-VI/NCTD dated 08.03.2000 concluded vide paragraphs 6 & 7
thereof to the effect:-
".....
......
6. AND WHEREAS after careful consideration of the
allegations and charges, defence statement of Sh.
Satish Beldar, the record of proceedings in the
enquiry and statement of witnesses in the case and
also submission of Sh.Satish Beldar under letter
dated 28/8/95 and the court verdict pronounced on
4/12/99, the undersigned has decided to accept the
findings of the Enquiry officer.
7. NOW THEREFORE, after considering the record
of the Inquiry and the facts and circumstances of the
case, and also verdict of the Hon'ble Court, the
undersigned has come to the conclusion that
Sh.Satish Beldar was given adequate opportunity to
defend the case and it has been found that he played
a leading role in inciting and instigating the worker
of Jamuna Bazar, Sub-Division of PWD-24(DA) on
9/5/91 and also he grossly misbehaved with and
caused physical and mental pain to Sh.S.P.Garg,
Assistant Engineer on 9/5/91 by illegal confinement,
man-handing and the undersigned has come to the
conclusion that Sh.Satish Beldar has neither acted as
a responsible officer nor appeared to be interested in
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disciplined and orderly behavior in the Govt. Service,
by his well considered and deliberate act thus,
violating the provision of Rule (3) (i)(ii)(iii) of CCS
(Conduct) Rules 1964 and under the circumstances
referred to above, undersigned is of the view that ends
of justice would be met if the penalty of removal from
service is imposed on him. Accordingly the above said
penalty is hereby imposed on Sh.Satish Beldar."
19. Vide order dated 12.11.2018, it was considered essential by this
Court to peruse the testimonies of SW-1, SW-2, SW-3, SW-4, SW-5,
SW-6 and DW-1, DW-2, DW-3, DW-4, DW-5 examined during the
enquiry proceedings as per the enquiry conducted by Sh.S.K.Sharma,
Enquiry Officer as well as also the Award in ID No.562/93 dated
15.01.2001 vide which the termination of three other workmen named
Jagan Nath, Rakesh and Charan Singh was declared wrongful. The
copy of the said Award dated 15.01.2001 in ID No.562/93 was placed
on record on behalf of the petitioner on 30.04.2019. The copies of the
testimonies recorded in the enquiry proceedings were submitted along
with the Departmental Enquiry proceedings on 16.10.2019 on behalf
of the respondent.
20. Written submissions and oral submissions have been made on
behalf of either side.
21. Inter alia it has been submitted on behalf of the petitioner that
the charge sheet in this case was issued on 28.06.1991, the enquiry
report submitted on 30.08.1994, the petitioner was acquitted in the
FIR on 04.12.1999 and was taken back on duty on 10.01.2000 and the
penalty of removal on the basis of the enquiry report dated 30.08.1994
Signature
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By:SUMIT GHAI
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was imposed on 08.03.2000. It has thus, been submitted on behalf of
the petitioner that once he had been taken back on duty on 10.01.2000,
hence there accrued no fresh cause of action against him for passing
an order of removal from the service, in as much as, all the other
previous causes got merged/ purged once he was permitted to join the
duty back after his acquittal in the FIR on 04.12.1999.
22. Inter alia, it was submitted on behalf of the petitioner that the
order of removal from service passed on 08.03.2000 on the basis of
the enquiry report dated 30.08.1994 is harsh, unfair and beyond the
principles of natural justice apart from being barred by gross delay and
latches. The petitioner has further submitted that the findings of the
Enquiry Officer were unjustified and illegal and in ID No.562/93 qua
the other three co-workers who had also been acquitted in the FIR, the
termination had been held to be illegal vide award dated 15.01.2001.
23. Inter alia, the petitioner has submitted that no action had been
taken on the enquiry report dated 30.08.1994 till 08.03.2000 and that
thus, the penalty imposed on him cannot be sustained in terms of the
verdict in "Ashwani Kumar vs. Presiding Judge, Labour Court"
[2008] 1 HLJ 303.
24. The petitioner has further submitted that in terms of the verdict
of the Hon'ble Division Bench of this Court in "Director General
Works, CPWD Vs. Davinder Singh" 148 (2008) DLT 272 DB, no
discrimination should be made between similarly situated persons who
should be given the same benefits and treatment.
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25. On behalf of the respondent, it has been submitted that
workman had appealed to the management against the dismissal order
dated 08.03.2000 under the Central Civil Services (Conduct) Rules,
1964 and that appeal was rejected vide letter dated 18.09.2000 by the
Superintending Engineer, PWD, Circle 2 (NCTD), New Delhi.
26. Inter alia, through the written submissions that have been
submitted on behalf of the respondent, it has been submitted that the
enquiry report was prepared and signed on 30.08.1994, which was
also sent to the petitioner vide an office order No.5(2)/PWD-
VI/EC/2408 dated 22.10.1994 and his submission on report was
received on 28.08.1995 vide a letter dated 28.08.1995 and that there
was an official correspondence between the petitioner and MRD and
between the Division office to the Circle office/ Chief office as to the
authority to fix the penalty on the enquiry report and at the end it was
concluded that the Executive Engineer, PWD-VI had the authority to
fix the penalty and that is why there was delay in taking a decision of
removal of the petitioner from the service.
27. Inter alia, the respondent has submitted that the petitioner had
been given an adequate opportunity to defend his case in the enquiry
proceedings as has been held in the impugned award and the petitioner
had been found to have played a leading role in inciting and
instigating the workers of Jamna Bazar, Sub Division of PWD-24(DA)
on 09.05.1991 and had grossly misbehaved and caused physical and
mental pain to Sh.S.P.Garg, Assistant Engineer on 09.05.1991 by
illegal confinement and manhandling and that thus, the Executive
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Engineer had come to the conclusion that the petitioner had neither
acted as a responsible officer nor interested in being disciplined and
orderly behavior in the government service by his well considered and
deliberate act and had thus, violated the provision of Rule 3(i)(ii)(iii)
of the Central Civil Services (Conduct) Rules, 1964.
28. Inter alia, the respondent has submitted that the charges against
the petitioner were graver than those against the other three persons
who had been tried along with the petitioner, in as much as, the
petitioner was their leader who had instigated the workers of Jamuna
Bazar Sub Division of the PWD Division-24 on 09.05.1991 and had
taken other workers with him and grossly misbehaved with and caused
physical and mental pain to Sh.S.P.Garg, Assistant Engineer and
Junior Engineers there on 09.05.1991. It has also been submitted on
behalf of the respondent that the petitioner cannot claim negative
equality/parity as entitlement or as right with the other co-accused in
the FIR i.e. the FIR No.191/91, PS Kashmere Gate under Sections
342/34 of the Indian Penal Code, 1860.
29. It has also been submitted on behalf of the respondent that the
acquittal by the criminal Court does not debar the management from
punishing the workman on the basis of enquiry proceedings and that
the acquittal in a criminal case does not entitle a person to automatic
reinstatement because disciplinary action can be taken after acquittal
as well.
30. Reliance was placed on behalf of the respondent on the verdicts
of the Hon'ble Supreme Court in "Ajit Kumar Nag V. G.M.Indian Oil
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Corporation Ltd." AIR 2005 SUPREME COURT 4217 with specific
reference to paragraph 11 of the said verdict, which reads to the
effect:-
"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. Such strict
rules of evidence and procedure would not apply to
departmental proceedings. The degree of proof which
is necessary to order a conviction is different from the
degree of proof necessary to record the commission of
delinquency. The rule relating to appreciation of
evidence in the two proceedings is also not similar. In
criminal law, burden of proof is on the prosecution
and unless the prosecution is able to prove the guilt of
the accused "beyond reasonable doubt", he cannot be
convicted by a court of law. In a departmental enquiry,
on the other hand, penalty can be imposed on the
delinquent officer on a finding recorded on the basis of
"preponderance of probability". Acquittal of the
appellant by a Judicial Magistrate, therefore, does
not ipso facto absolve him from the liability under the
disciplinary jurisdiction of the Corporation. We are,
therefore, unable to uphold the contention of the
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appellant that since he was acquitted by a criminal
court, the impugned order dismissing him from service
deserves to be quashed and set aside.,, and
in "NOIDA ENTERPRENEURES ASSN. V. NOIDA & ORS." JT
2007 (2) SC 620 with specific reference to observations in paragraphs
12, 16 & 17, which read to the effect:-
"12. The purpose of departmental enquiry and of
prosecution is 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
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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 department 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.
...
...
16. In Capt. M. Paul Anthony v. Bharat Gold Mines Ltd.
(1999 (3) SCC 679), this Court indicated some of the fact
situations which would govern the question whether
departmental proceedings should be kept in abeyance
during pendency of a criminal case. In paragraph 22
conclusions which are deducible from various decisions
were summarised. They are as follows:
(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.
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(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.
17. The position in law relating to acquittal in a criminal
case, its effect on departmental proceedings and re-
instatement in service has been dealt with by this Court in
Union of India and Anr. v. Bihari Lal Sidhana (1997 (4)
SCC 385). It was held in paragraph 5 as follows:
"5. It is true that the respondent was acquitted by
the criminal court but acquittal does not
automatically give him the right to be re- instated
into the service. It would still be open to the
competent authority to take decision whether the
delinquent government servant can be taken into
service or disciplinary action should be taken
under the Central Civil Services (Classification,
Control and Appeal) Rules or under the Temporary
Service Rules. Admittedly, the respondent had been
working as a temporary government servant before
he was kept under suspension. The termination
order indicated the factum that he, by then, was
under suspension. It is only a way of describing
him as being under suspension when the order
came to be passed but that does not constitute any
stigma. Mere acquittal of government employee
does not automatically entitle the government
servant to reinstatement. As stated earlier, it would
be open to the appropriate competent authority to
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conduct is required to be done before directing
reinstatement or appropriate action should be
taken as per law, if otherwise, available. Since the
respondent is only a temporary government
servant, the power being available under Rule 5(1)
of the Rules, it is always open to the competent
authority to invoke the said power and terminate
the services of the employee instead of conducting
the enquiry or to continue in service a government
servant accused of defalcation of public money. Re-
instatement would be a charter for him to indulge
with impunity in misappropriation of public
money."
and on the verdict in "UNION OF INDIA V. BIHARI LAL
SIDHANA" (1997) 4 SUPREME COURT CASES 385 with specific
reference to observations in paragraph 5 of the said verdict, which
reads to the effect:-
"5. It is true that the respondent was acquitted by the
criminal court but acquittal does not automatically
give him the right to be reinstated into the service. It
would still be open to the competent authority to take
decision whether the delinquent government servant
can be taken into service or disciplinary action should
be taken under the Central Civil Services
(Classification, Control & Appeal) Rules or under the
Temporary Service Rules. Admittedly, the respondent
had been working as a temporary government servant
before he was kept under suspension. The
termination order indicated the factum that he, by
then, was under suspension. It is only a way of
describing him as being under suspension when the
order came to be passed but that does not constitute
any stigma. Mere acquittal of government employee
does not automatically entitle the government servant
to reinstatement. As stated earlier, it would be open to
the appropriate competent authority to take a decision
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whether the enquiry into the conduct is required to be
done before directing reinstatement or appropriate
action should be taken as per law, if otherwise,
available. Since the respondent is only a temporary
government servant, the power being available under
Rule 5(1) of the Rules, it is always open to the
competent authority to invoke the said power and
terminate the services of the employee instead of
conducting the enquiry or to continue in service a
government servant accused of defalcation of public
money. Reinstatement would be a charter for him to
indulge with impunity in misappropriation of public
money."
ANALYSIS
31. On a consideration of the submissions that have been made on
behalf of the petitioner and the respondent and on a perusal of the
enquiry proceedings that have been conducted in the instant case
inclusive of the testimonies recorded during the enquiry, which was
concluded vide enquiry proceedings dated 30.08.1994 by
Sh.S.K.Sharma, Enquiry Officer against the petitioner despite the
acquittal of the petitioner and three other co-workers in FIR
No.191/91, PS Kashmere Gate under Sections 342/34 of the Indian
Penal Code, 1860 in relation to the very same incident of the date
09.05.1991, it is essential to observe that as has been rightly contended
on behalf of the respondent, the acquittal in criminal proceedings in
which the guilt of a person has to be held to have been proved beyond
a reasonable doubt, does not preclude the disciplinary proceedings in
which the charges of misconduct have to be established on a
preponderance of probabilities to continue and to consequentially
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result into a penalty inclusive of a penalty of termination of service in
the event of an employee having been held to have violated the service
rules.
32. The verdict of the Hon'ble Supreme Court in "The State of
Karnataka & Anr. Vs. Umesh" in Civil Appeal Nos.1763-1764 of
2022 dated 22.03.2022 reiterates this status of law as has already been
enunciated in "State of Haryana Vs. Rattan Singh" (1977) 2 SCC
491, "State of Rajasthan V. B.K.Meena" (1966) 6 SCC 417;
"Krishnakali Tea Estate V. Akhil Bharatiya Chah Mazdoor Sangh"
(2004) 8 SCC 200; "Ajit Kumar Nag V. Indian Oil Corporation
Ltd." (2005) 7 SCC 764; and "CISF V. Abrar Ali" (2017) 4 SCC 507.
33. The observations in "State of Haryana Vs. Rattan Singh"
(supra) in paragraph 4 of the said verdict are categorical which reads
to the effect:-
"4. It is well settled that in a domestic enquiry the
strict and sophisticated rules of evidence under the
Indian Evidence Act may not apply. All materials
which are logically probative for a prudent mind are
permissible. There is no allergy to hearsay evidence
provided it has reasonable nexus and credibility. It is
true that departmental authorities and Administrative
Tribunals must be careful in evaluating such material
and should not glibly swallow what is strictly speaking
not relevant under the Indian Evidence Act. For this
proposition it is not necessary to cite decisions nor text
books, although we have been taken through case-law
and other authorities by counsel on both sides. The
essence of a judicial approach is objectivity, exclusion
of extraneous materials or considerations and
observance of rules of natural justice. Of course,
fairplay is the basis and if perversity or arbitrariness,
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bias or surrender of independence of judgment vitiate
the conclusions reached, such finding, even though of a
domestic tribunal, cannot be held good. However, the
courts below misdirected themselves, perhaps, in
insisting that passengers who had come in and gone
out should be chased and brought before the tribunal
before a valid finding could be recorded. The
„residuum‟ rule to which counsel for the respondent
referred, based upon certain passages from American
Jurisprudence does not go to that extent nor does the
passage from Halsbury insist on such rigid
requirement. The simple point is, was there some
evidence or was there no evidence -- not in the sense
of the technical rules governing regular court
proceedings but in a fair commonsense way as men of
understanding and worldly wisdom will accept. Viewed
in this way, sufficiency of evidence in proof of the
finding by a domestic tribunal is beyond scrutiny.
Absence of any evidence in support of a finding is
certainly available for the court to look into because it
amounts to an error of law apparent on the record. We
find, in this case, that the evidence of Chamanlal,
Inspector of the Flying Squad, is some evidence which
has relevance to the charge levelled against the
respondent. Therefore, we are unable to hold that the
order is invalid on that ground."
(emphasis supplied)
34. The observations of the Hon'ble Supreme Court in "The State
of Karnataka & Anr. Vs. Umesh" (supra) in paragraph 13 thereof are
to the effect:-
"13. The principles which govern a disciplinary
enquiry are distinct from those which apply to a
criminal trial. In a prosecution for an offence
punishable under the criminal law, the burden lies on
the prosecution to establish the ingredients of the
offence beyond reasonable doubt. The accused is
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entitled to a presumption of innocence. The purpose of
a disciplinary proceeding by an employer is to enquire
into an allegation of misconduct by an employee which
results in a violation of the service rules governing the
relationship of employment. Unlike a criminal
prosecution where the charge has to be established
beyond reasonable doubt, in a disciplinary proceeding,
a charge of misconduct has to be established on a
preponderance of probabilities. The rules of evidence
which apply to a criminal trial are distinct from those
which govern a disciplinary enquiry. The acquittal of
the accused in a criminal case does not debar the
employer from proceeding in the exercise of
disciplinary jurisdiction."
35. Furthermore, as held in "The State of Karnataka & Anr. Vs.
Umesh" in Civil Appeal Nos.1763-1764 of 2022 dated 22.03.2022, in
exercise of judicial review, the Court does not act as an Appellate
Forum qua the findings of the disciplinary authority and the Court
does not reappreciate the evidence on the basis of which the findings
of misconduct have been arrived at in the course of a disciplinary
enquiry, and that the Court is required in the exercise of judicial
review to restrict its review to determine whether:
(i) the rules of natural justice have been complied with;
(ii) the finding of misconduct is based on some evidence;
(iii) the statutory rules governing the conduct of the
disciplinary enquiry have been observed;
(iv) whether the findings of the disciplinary authority suffer
from perversity and;
(v) whether the penalty is disproportionate to the proven
misconduct.
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36. In the instant case, as has been rightly held vide the impugned
award, the rules of natural justice have been complied with.
Furthermore, on a perusal of the enquiry record and the consistent
testimonies of the witnesses that have been recorded i.e. SW-1, SW-2,
SW-3, SW-4, SW-5, SW-6 qua the material particulars and DW-1,
DW-2, DW-3, DW-4, DW-5, it is apparent that the testimony of
Mr.S.P.Garg, Assistant Engineer who had been confined under the
leadership of the petitioner by other co-associate workers and had
been confined in a room from about 9.30 AM till 4.30 PM till he was
able to get out of the room in which he was bolted without a jug of
water and without a chair which had also been removed from the room
with an attempt having been made by the petitioner and his associate
to even blacken the face of Mr.S.P.Garg, it is apparent that the
findings of misconduct arrived at by the Enquiry Officer and upheld
by the Disciplinary Authority are clearly based on evidence that had
been led in the enquiry proceedings. The statutory rules governing the
conduct of the disciplinary enquiry have clearly been observed and in
view of the findings of the enquiry office vide the report dated
30.08.1994 as approved by the Disciplinary Authority and on a perusal
of the testimonies of the witnesses produced during the enquiry by the
Department, there is nothing to indicate that the findings of the
Disciplinary Authority, whereby, a penalty of termination of services
of the petitioner has been imposed, is in any manner perverse or in any
manner disproportionate to the proven misconduct of illegal
confinement of Mr.S.P.Garg, the Assistant Engineer by the petitioner,
the leader of the workers in the unrest in confining Mr.S.P. Garg in a
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room in which he was bolted from outside and abused and physically
manhandled, from which the water jug and chair were removed with
an attempt having been made even to blacken his face.
37. Though, undoubtedly, vide the award dated 15.01.2001 in ID
No.562/93, the dismissal of the services of Rakesh, Charan Singh and
Jagan Nath has been held to the illegal and unjustified, it is essential to
observe that there were no enquiry proceedings initiated by the
Department against the said persons namely. Rakesh, Charan Singh
and Jagan Nath despite there being some allegations of misconduct
against them and thus, it had been held vide the award dated
15.01.2001 in ID No.562/93 that the management had not been able to
prove the charges in this case and furthermore, the management had
even been proceeded ex-parte in the proceedings in ID No.562/93.
38. In the instant case against the petitioner, the enquiry
proceedings were initiated and concluded on 30.08.1994 and the
disciplinary proceedings were also held and the petitioner was
terminated from service in terms of the disciplinary proceedings vide
order dated 08.03.2000 and there is no parity between the case of the
petitioner and the other persons namely Rakesh, Charan Singh and
Jagan Nath in ID No.562/93 which the management i.e. the
respondent herein had not even chosen to contest. In the instant case
of the petitioner where apart from the full fledged enquiry that had
taken place, the depositions of the witnesses at the spot inclusive of
the person who had been illegally confined Mr.S.P. Garg inter alia by
the petitioner along with other workers as being the leader of the said
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workers had been recorded, is at much variance from the case of the
other three persons who had been reinstated into service in terms of
the award dated 15.01.2001 in ID No.562/93.
CONCLUSION
39. In view of the findings herein to the effect that the rules of
natural justice have been fully followed in the enquiry proceedings
that had been conducted against the petitioner and concluded vide the
enquiry report dated 30.08.1994 and on a perusal of the depositions of
the witnesses recorded in the enquiry proceedings, copies of which
have been placed on the record by the petitioner, and the factum that
mere acquittal in the criminal proceedings does not prevent the
management to proceed with the departmental proceedings against an
employee, coupled with the factum that the power of judicial review
of the findings of misconduct arrived at in the course of the
disciplinary enquiry does not extend to reappreciating the entire
evidence that had been recorded therein, and is restricted to determine
whether:
(i) the rules of natural justice have been complied with;
(ii) the finding of misconduct is based on some evidence;
(iii) the statutory rules governing the conduct of the
disciplinary enquiry have been observed;
(iv) whether the findings of the disciplinary authority suffer
from perversity and;
(v) whether the penalty is disproportionate to the proven
misconduct,
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and it is held that in the instant case, there is no ground to set aside the
findings of misconduct and the penalty imposed of termination of
service on the petitioner as imposed by the Disciplinary Authority. In
these circumstances, it is held that there is no infirmity in the
impugned award dated 20.10.2010 of the learned Presiding Officer,
Labour Court-XIX, Karkardooma Courts, Delhi in LIR No.213 of
2006/ LIR No.221 of 2010/ Unique Case I.D.No.02402C0042922002
titled as "Sh. Satish Sachiv Baba Vs. C.P.W.D. (M.R.D.).
40. The petition is thus, dismissed.
ANU MALHOTRA, J.
APRIL 01, 2022
nc
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