Punjab-Haryana High Court
Om Parkash vs State Of Haryana And Others on 5 April, 2024
Author: Harsimran Singh Sethi
Bench: Harsimran Singh Sethi
Neutral Citation No:=2024:PHHC:047117
CWP-24714-2021 (O&M) -1- 2024:PHHC:047117
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
221 CWP-24714-2021 (O&M)
Date of Decision :05.04.2024
Om Parkash Now (deceased) through his LRs ...Petitioner
Versus
State of Haryana and others ....Respondents
CORAM: HON'BLE MR. JUSTICE HARSIMRAN SINGH SETHI
Present: Mr. Rishi Pal Singh Garttan, Advocate for the petitioner.
Mr. Harish Rathee, Senior DAG, Haryana.
***
Harsimran Singh Sethi, J. (Oral)
1. In the present petition, petitioner-Om Parkash (now deceased)
has challenged order dated 08.10.2017 (Annexure P/1) as modified by the
Appellate authority vide order dated 29.11.2017 (Annexure P/2), vide which
petitioner was compulsorily retired from service.
2. As per the facts mentioned in the present petition, the petitioner
was initially appointed as driver on 07.02.1990 in the Haryana Roadway
upon being recommended by the Subordinate Service Selection Board,
Haryana but services of the petitioner were terminated vide order dated
11.07.1991 while he was on probation, which order dated 11.07.1991 was
challenged by the petitioner before the Industrial Disputes Tribunal under
the Industrial Dispute Act. An award was passed by the Industrial Dispute
Tribunal-cum-Labour Court on 01.10.1999 and order terminating the
services of the petitioner dated 11.07.1991 was set aside and the petitioner
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was directed to be reinstated in service with continuity in service alongwith
40% back wages. The said award dated 01.10.1999 was challenged by the
State by way of filing CWP-17573-2000 wherein, reinstatement of the
petitioner was stayed and the writ petition was admitted .
3. Despite the interim order, the petitioner was allowed to join
duties on 04.06.2009 by the respondents. Upon reinstatement in service, the
petitioner continued working when once again allegations were alleged
against him that while driving bus No.55W-9038, he was smoking hukka
putting the life of the passengers in danger hence, by invoking provisions of
Section 311(2) (b) of the Constitution of India, services of the petitioner
were again terminated by the respondents on 09.10.2017. The said order was
passed by the respondents when a video of the petitioner smoking Hukka
while driving on route from Delhi to Shimla had gone viral.
4. Against the said order of dismissal from service dated
09.10.2017, petitioner filed an appeal and vide order dated 29.11.2017, the
Director General Transport Department, Haryana modified the punishment
of dismissal from service to that of compulsorily retirement with the
observation that no financial benefit is to be given over and above the
suspension allowance already paid.
5. It may be noticed that keeping in view the video which had
gone viral of the petitioner smoking Hukka while driving the bus, an FIR
No.43 dated 01.02.2018 was also registered under Sections 279 & 336 of the
IPC and Section 4 of the COTPA Act and in the said FIR, the petitioner was
acquitted by the trial Court vide order dated 07.07.2021.
6. After the said judgment of acquittal, the petitioner has filed the
present petition challenging the order by which, he was compulsorily retired
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from service dated 29.11.2017.
7. Learned counsel for the petitioner argues that as the petitioner
has already been acquitted of the same allegations by the criminal Court, the
order of compulsorily retirement dated 29.11.2017 cannot stand and the
same is liable to be set aside.
8. Learned counsel for the respondents submits that departmental
proceedings and the criminal proceeding operate in a different sphere and
the evidence required to prove the allegations in both the proceedings is
entirely different and merely that the petitioner was acquitted in the criminal
proceedings, it will not vitiate the order passed in the departmental
proceedings by the punishing authority, by which, the petitioner has been
compulsorily retired from service.
9. I have heard learned counsel for the parties and have gone
through the record with their able assistance.
10. The only question which arises for determination in the present
petition is as to whether the petitioner can claim that punishment order of
his compulsorily retirement from service dated 29.11.2017 be set aside on
the ground that he has been acquitted of the allegations alleged against him,
by the criminal Court.
11. Keeping in view the settled principle of law settled by the
Supreme Court of India in Civil Appeal No.1763-1764 of 2022 titled as
State of Karnataka and another vs. Umesh, decided on 22.03.2022,
according to which, mere acquittal in the criminal case has no bearing upon
the departmental proceedings, which have already been concluded or any
disciplinary proceedings which is to be started after the culmination of the
said proceedings. As per the judgment of the Hon'ble Supreme Court of
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India in Umesh's case (supra) even an acquittal in the criminal proceedings
does not create bar upon the department to initiate the departmental
proceedings hence, merely that the petitioner acquitted of the criminal
charges does not give him right to claim that the punishment imposed upon
him in the departmental proceedings is liable to be set aside. Relevant
paragraph of the judgment is as under:-
"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 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."
12. Further, nature of evidence, which is required to prove the
allegations in the criminal proceedings or in departmental proceedings is
different.
13. In the present case, a video of the petitioner had gone viral
while smoking Hukka while driving a bus on duty and under these
circumstances, an action was taken by the authority concerned against the
petitioner in departmental proceedings. Keeping in view the nature of
allegations and the evidence which had come before the authorities
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concerned, appropriate action was taken against the petitioner though,
initially he dismissed from service but the said punishment has been
modified to be that of compulsory retirement in an appeal.
14. Keeping in view the allegations alleged against the petitioner, it
cannot be said that punishment imposed upon the petitioner is
disproportionate to the allegations alleged.
15. Now question which arises is as to whether the petitioner is
entitled for the grant of pensionary benefits or not.
16. It may be noticed that after the punishment of dismissal from
service was modified by the appellate authority to that of compulsory
retirement, the petitioner has to be treated as compulsorily retired from
service from the date the order was passed by the punishing authority and for
all intent and purposes, the petitioner is to be treated a retired employee.
There is nothing on record to say that there was any impediment in the
release of the pensionary benefits of the petitioner.
17. At this stage, learned counsel for the respondents submits that
reinstatement of the petitioner by the Industrial Disputes Tribunal vide order
dated 01.10.1999 is a subject matter of CWP-17573-2000 hence, unless and
until the said petition attains finality, no benefit of pension can be extended
to the petitioner.
18. Learned counsel for the petitioner submits that the said writ
petition had already been dismissed by the Coordinate Bench of this Court
vide order dated 04.01.2024, copy of which order has been furnished to the
learned counsel for the respondents by the learned counsel for the petitioner
during the course of hearing.
19. That being the factual position, as the reinstatement order
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passed by the Labour Court as well as the order of compulsory retirement of
the petitioner from service has attained finality hence, the petitioner is
entitled for the grant of pensionary benefits as no impediment has been
shown to this Court in the release of the pensionary benefits of the petitioner
qua the services, which he had rendered with the respondent-department
upto the date of his compulsory retirement i.e. 08.10.2017.
20. The respondents are directed to compute the pensionary benefits
of the petitioner and release the same to him within a period of 08 weeks
from the date of receipt of copy of this order.
21. At this stage, learned counsel for the petitioner submits that
petitioner has already died and the present petition is being pursued by his
legal heirs.
22. Keeping in view the said fact, it is directed that the pension as
well as pensionary benefits for which, the petitioner becomes entitled be
released to his widow, who has already come on record as legal heir of the
petitioner.
23. Learned counsel for the petitioner further submits that there was
no impediment in the release of the pensionary benefits of the petitioner
after the punishment of dismissal from service was converted to that of
compulsory retirement but still the petitioner has been made to wait for a
period of more than six and a half years to get his entitled benefits hence, the
petitioner is also entitled for the grant of benefit of interest on the said
delayed payment of the pensionary benefits.
24. Learned counsel for the respondents submits that the claim of
the petitioner is being decided by this Court today hence, no interest can be
granted to the petitioner.
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25. A Coordinate Bench of this Court in of J.S. Cheema Vs. State
of Haryana, 2014(13) RCR (Civil) 355, has held that where an amount
belonging to an employee, has been retained and used by the respondents,
upon the release of the said amount, on a later date, the interest has to be
given. The relevant paragraph of J.S. Cheema's case (supra) is as under: -
"The jurisprudential basis for grant of interest
is the fact that one person's money has been
used by somebody else. It is in that sense rent
for the usage of money. If the user is
compounded by any negligence on the part of
the person with whom the money is lying it may
result in higher rate because then it can also
include the component of damages (in the
formof interest). In the circumstances, even if
there is no negligence on the part of the State it
cannot be denied that money which rightly
belonged to the petitioner was in the custody of
the State and was being used by it."
26. In the present case, after the reinstatement of the petitioner in
service, despite the pendency of CWP-17573-2000, the petitioner continued
in service and had discharged his duties since the year 2009, Further, by the
award of the Industrial Disputes Tribunal dated 01.10.1999, petitioner was
already given the benefit of continuity in service hence, there was no
impediment in the release of the pensionary benefits of the petitioner and
the delay in the release of the said benefit is attributable to the respondents
only. Hence, the petitioner is also held entitled for the grant of benefit of
interest @ 6% per annum on the pensionary benefits from the date the same
became due till the date of actual payment.
27. At this stage, learned counsel for the petitioner submits that
CWP-17573-2000 filed by the respondent-State has been dismissed and
40% of the back wages, which was allowed by the Tribunal vide award
dated 01.10.1999 has also not been paid to him so far.
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28. In case, the factual position is that the petitioner has not been
paid 40% of the back wages for which he was entitled for under the award
of the tribunal dated 01.10.1999, the same be also released to him.
29. It may be noticed that keeping in view the fact that while
deciding CWP-17573-2000, a Coordinate bench of this Court has held that
back wages was not even challenged, that being so, even 40% of the back
wages, if not released so far, be also released to the petitioner along with
interest @ 6% per annum.
30. Present petition stands allowed in above terms.
31. Civil miscellaneous application pending, if any is also disposed
of.
April 05, 2024 (HARSIMRAN SINGH SETHI)
aarti JUDGE
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
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