Himachal Pradesh High Court
Between vs "8. A Number Of Judgments Have Held ... on 20 August, 2021
Bench: Ravi Malimath, Justice, Jyotsna Rewal Dua
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE 20th DAY OF AUGUST 2021
BEFORE
.
HON'BLE MR. JUSTICE RAVI MALIMATH,
ACTING CHIEF JUSTICE
&
HON'BLE MS. JUSTICE JYOTSNA REWAL DUA
LETTERS PATENT APPEAL No. 437 of 2012
Between:-
SATISH KUMAR
S/O SH. SUKH RAM,
R/O VILLAGE GAHAR,
POST OFFICE PANJGAIN,
DISTRICT BILASPUR,
HIMACHAL PRADESH
......APPELLANT
(BY SH. T.S. CHAUHAN, ADVOCATE)
AND
THE ASSOCIATED CEMENT
COMPANIES LTD. GAGAL CEMENT
WORKS, POST OFFICE BARMANA,
DISTRICT BILASPUR,
HIMACHAL PRADESH
THROUGH ITS SENIOR
VICE PRESIDENT
......RESPONDENT
(BY SH. K.D. SOOD, SENIOR ADVOCATE
WITH SH. HET RAM, ADVOCATE)
This Appeal coming on for orders this day, Hon'ble
Ms. Justice Jyotsna Rewal Dua, delivered the following:
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JUDGMENT
Following reference was sent by the appropriate Government
to the learned Labour Court-cum-Industrial Tribunal, Dharamshala,
.
District Kangra, for adjudication:-
"Whether the termination of services of Sh. Satish Kumar,
worker by the Management of M/s. Associated Cement
Companies, Gaggal Cement Works, Barmana, District Bilaspur,
H.P. by implicating him in the false charge of alleged theft
without any fair and proper enquiry in accordance with the
principles of fair play and natural justice by denying him the
reasonable opportunity of being heard, is justified and
maintainable. If not, to what relief of consequential benefits
including back wages, seniority and amount of compensation,
Sh. Satish Kumar is entitled."
Learned Labour Court dismissed the reference on
29.05.2007. Writ petition filed by the petitioner against this award
was also dismissed by the learned Single Judge on 03.07.2012.
Appellant is taking second chance against the award by means of
instant appeal.
2(i). The appellant was appointed as a Workman with the
respondent in 1986. Respondent issued a charge-sheet to him on
04.01.1995. The charges pertained to riotous, disorderly, indecent
behavior of the appellant on the respondent's property/premises.
The appellant was also charged with theft, fraud, dishonesty in
connection with respondent's property/business. Charges of forgery,
falsification, tampering, manipulation and destruction of record were
also levelled against the appellant. He was also accused of
trespassing on respondent's property.
2(ii). Appellant filed reply to the charge-sheet on 09.01.1995.
Respondent appointed an Inquiry Officer. The appellant filed an
.
application for deferring the departmental proceedings in view of
pendency of criminal case against him allegedly on the same
allegations. Initially, the appellant did not participate in the
departmental proceedings. Notice was issued to him through daily
edition of newspaper 'Jansatta' on 27.02.1995. Appellant thereafter
was not
appeared before the Inquiry Officer on 03.03.1995. The request of
the appellant for deferring the inquiry during pendency of criminal
proceedings
accepted. Inquiry proceedings were
completed. The inquiry report was submitted on 14.08.1995. The
Inquiry Officer held that the appellant was guilty of 'drunkenness,
riotous or disorderly or indecent behavior on the company's property
or premises'. It was also held that the appellant had committed acts
subversive of discipline. The charges of theft, fraud or dishonesty in
connection with the company's property or business were held to be
proved against the appellant. Charge of forgery, falsification,
tampering, manipulation, defacement or destruction of documents
was also held to be established against the appellant. The appellant
was also held guilty of trespassing on company's property/premises.
The inquiry report was sent to the appellant on 19.08.1995. After
completing the disciplinary proceedings, the disciplinary authority
dismissed the appellant from service on 31.08.1995.
2(iii). The appellant raised an industrial dispute against his
.
dismissal order dated 31.08.1995. The matter was referred by the
State Government to the learned Labour Court-cum-Industrial
Tribunal, Kangra at Dharamshala. The learned Labour Court after
appreciating the respective contentions of the parties and evidence
adduced by him, dismissed the reference, vide award dated
29.05.2007. The appellant thereafter preferred a writ petition before
this Court. The writ petition was also dismissed by the learned
Single Judge vide judgment dated 03.07.2012, impugned herein.
3. Heard learned counsel for the parties and gone through the
record.
Before the learned Single Judge, the appellant had raised
various contentions, viz. regarding conduct of inquiry proceedings in
violation of the principles of natural justice and non-adherence to the
mandatory procedure prescribed in law. Learned Single Judge after
appreciating the facts, submissions of the parties and the evidence
adduced by them in support of their contentions, held that the inquiry
was held in accordance with law. Principles of natural justice were
followed. The entire procedure prescribed in law was followed while
holding the inquiry and the disciplinary proceedings. Learned
counsel for the appellant has not re-agitated these points during
hearing of this appeal.
4. The only point urged by the learned counsel for the appellant
.
is that an FIR was registered against the appellant under Sections
379, 420 and 120B of the Indian Penal Code. This FIR was
registered on the basis of the same allegations, on which the
departmental proceeding was initiated against the appellant. The
criminal case eventually resulted in appellant's acquittal on
09.11.2005. Learned counsel for the appellant argued that since the
criminal case has resulted in appellant's acquittal, therefore, the
penalty of dismissal from service imposed upon the appellant in
departmental proceedings should also be reviewed. Under these
circumstances, the appellant has to be reinstated in service.
5. It is well settled that acquittal in the criminal case has no
bearing or relevance to the fate of the departmental proceedings as
the standard of proof required in both the proceedings is totally
different. Object and approach of two proceedings are altogether
different. Degree of proof required in these two proceedings is also
different. In this regard, it will be apt to refer to the judgment passed
by the Hon'ble Apex Court in (2020) 9 SCC 636, titled Ashoo
Surendranath Tewari Versus Deputy Superintendent of Police,
EOW, CBI and another, wherein it was observed that standard of
proof in departmental proceedings, being based on preponderance
of probability, is somewhat lower than the standard of proof in
criminal proceedings, where the case has to be proved beyond
.
reasonable doubt. It was also held that departmental and criminal
proceedings are independent in nature to each other. Relevant
paras of the judgment are as under:-
"8. A number of judgments have held that the standard of proof in a
departmental proceeding, being based on preponderance of
probability is somewhat lower than the standard of proof in a
criminal proceeding where the case has to be proved beyond
reasonable doubt. In P.S. Rajya v. State of Bihar, (1996) 9 SCC 1,
the question before the Court was posed as follows:- "
"3. The short question that arises for our consideration in this
appeal is whether the respondent is justified in pursuing the
prosecution against the appellant under Section 5(2) read with
Section 5(1)(e) of the Prevention of Corruption Act, 1947
notwithstanding the fact that on an identical charge the
appellant was exonerated in the departmental proceedings in
the light of a report submitted by the Central Vigilance
Commission and concurred by the Union Public Service
Commission."
9. This Court then went on to state:
"17. At the outset we may point out that the learned counsel for
the respondent could not but accept the position that the
standard of proof required to establish the guilt in a criminal
case is far higher than the standard of proof required to
establish the guilt in the departmental proceedings. He also
accepted that in the present case, the charge in the
departmental proceedings and in the criminal proceedings is
one and the same. He did not dispute the findings rendered in
the departmental proceedings and the ultimate result of it."
11. In Radheshyam Kejriwal v. State of W.B. [(2011) 3 SCC 581], this
Court held as follows:-
"26. We may observe that the standard of proof in a criminal
case is much higher than that of the adjudication proceedings.
The Enforcement Directorate has not been able to prove its
case in the adjudication proceedings and the appellant has
been exonerated on the same allegation. The appellant is
facing trial in the criminal case. Therefore, in our opinion, the
determination of facts in the adjudication proceedings cannot
be said to be irrelevant in the criminal case. In B.N. Kashyap
[AIR 1945 Lah 23] the Full Bench had not considered the effect
of a finding of fact in a civil case over the criminal cases and
.
that will be evident from the following passage of the said
judgment:
"... I must, however, say that in answering the question, I
have only referred to civil cases where the actions are in
personam and not those where the proceedings or
actions are in rem. Whether a finding of fact arrived at in
such proceedings or actions would be relevant in criminal
cases, it is unnecessary for me to decide in this case.
When that question arises for determination, the
provisions of Section 41 of the Evidence Act, will have to
be carefully examined."
* * *
29. We do not have the slightest hesitation in accepting the
broad submission of Mr. Malhotra that the finding in an
adjudication proceeding is not binding in the proceeding for
criminal prosecution. A person held liable to pay penalty in
adjudication proceedings cannot necessarily be held guilty in a
criminal trial. Adjudication proceedings are decided on the basis
of preponderance of evidence of a little higher degree whereas
in a criminal case the entire burden to prove beyond all
reasonable doubt lies on the prosecution.
* * *
31. It is trite that the standard of proof required in criminal
proceedings is higher than that required before the adjudicating
authority and in case the accused is exonerated before the
adjudicating authority whether his prosecution on the same set
of facts can be allowed or not is the precise question which falls
for determination in this case."
12. After referring to various judgments, this Court then culled out the
ratio of those decisions in para 38 as follows:-
"38. The ratio which can be culled out from these decisions can
broadly be stated as follows:
(i) Adjudication proceedings and criminal prosecution can be
launched simultaneously;
(ii) Decision in adjudication proceedings is not necessary
before initiating criminal prosecution;
(iii) Adjudication proceedings and criminal proceedings are
independent in nature to each other;
(iv) The finding against the person facing prosecution in the
adjudication proceedings is not binding on the proceeding
for criminal prosecution;
(v) Adjudication proceedings by the Enforcement Directorate
is not prosecution by a competent court of law to attract
the provisions of Article 20(2) of the Constitution or
Section 300 of the Code of Criminal Procedure;
.
(vi) The finding in the adjudication proceedings in favour of
the person facing trial for identical violation will depend
upon the nature of finding. If the exoneration in
adjudication proceedings is on technical ground and not
on merit, prosecution may continue; and
(vii) In case of exoneration, however, on merits where the
allegation is found to be not sustainable at all and the
person held innocent, criminal prosecution on the same
set of facts and circumstances cannot be allowed to
continue, the underlying principle being the higher
standard of proof in criminal cases."
In State Bank of Bikaner and Jaipur Vs. Nemi Chand
Nalwaya, (2011) 4 SCC 584, Hon'ble Apex Court considered the
effect of subsequent acquittal of an employee by the criminal Court
on a completed disciplinary proceedings. It was held that finding of
guilt or punishment in an already completed disciplinary proceedings
will not be rendered invalid or ineffective by the subsequent acquittal
of official in the criminal trial. Departmental proceedings are more
proximate to the incident in point of time when compared to criminal
proceedings. The findings of criminal Court will have no effect on
previously concluded domestic enquiry. An employee who allows the
findings in the enquiry and the punishment by disciplinary authority
to attain finality by non-challenge, cannot after several years,
challenge the decision on the ground that subsequently the criminal
Court has acquitted him. Relevant para of the judgment is as under:-
"10. The fact that the criminal court subsequently acquitted the
respondent by giving him the benefit of doubt, will not in any way
render a completed disciplinary proceedings invalid nor affect the
validity of the finding of guilt or consequential punishment. The
.
standard of proof required in criminal proceedings being different
from the standard of proof required in departmental enquiries, the
same charges and evidence may lead to different results in the two
proceedings, that is, finding of guilt in departmental proceedings
and an acquittal by giving benefit of doubt in the criminal
proceedings. This is more so when the departmental proceedings
are more proximate to the incident, in point of time, when
compared to the criminal proceedings. The findings by the criminal
court will have no effect on previously concluded domestic enquiry.
An employee who allows the findings in the enquiry and the
punishment by the disciplinary authority to attain finality by non-
challenge, cannot after several years, challenge the decision on the
ground that subsequently, the criminal court has acquitted him."
The above position was reiterated in (2020) 3 SCC 423, titled
State of Karnataka and another Vs. N. Gangaraj, wherein well
established principle was also highlighted that Courts will not act as
an appellate Court and re-assess the evidence led in the domestic
enquiry, nor interfere on the ground that another view is possible on
the material on record. If the enquiry has been fairly and properly
held and the findings are based on evidence, the question of
adequacy of the evidence or the reliable nature of the evidence will
not be ground for interfering with the findings in departmental
enquiries.
In the instant case, departmental proceedings were conducted
against the appellant in accordance with law. On conclusion of
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disciplinary proceedings, punishment of dismissal from service was
imposed upon the appellant on 31.08.1995. It is well settled that
High Court while exercising power of judicial review in respect of
.
orders passed by the disciplinary authority does not act as Court of
Appeal. Acquittal of the appellant in criminal case on 09.11.2005, in
the facts of the case, will have no bearing on the departmental
proceedings. In criminal case, proof required is beyond reasonable
doubt, while in domestic inquiry, it is proof on preponderance of
probabilities.
Therefore, we do not find force in the contention of learned
counsel for the appellant that mere acquittal of the appellant in the
criminal proceedings should make way for his reinstatement in
service. The award passed by the learned Labour Court, dismissing
the reference, is well reasoned. The judgment passed by the
learned Single Judge, upholding the award, does not call for any
interference. Consequently, the instant appeal lacks merit and is
accordingly dismissed.
( Ravi Malimath )
Acting Chief Justice
( Jyotsna Rewal Dua )
August 20, 2021 Judge
Mukesh
