Punjab-Haryana High Court
Parveen Kumar vs S.D.O. Dakshini Haryana Bijli Vitran ... on 6 March, 2024
Author: Harsimran Singh Sethi
Bench: Harsimran Singh Sethi
Neutral Citation No:=2024:PHHC:032805
RSA-3749-2017 (O&M) 2024:PHHC:032805 1
210 IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
RSA-3749-2017 (O&M)
Date of Decision: 06.03.2024
PARVEEN KUMAR
...Appellant
Vs.
SDO DAKSHINI HARYANA BIJLI VITRAN NIGAM AND ORS
...Respondents
CORAM:- HON'BLE MR. JUSTICE HARSIMRAN SINGH SETHI
Present: Mr. Shilak Ram Hooda, Advocate
for the petitioner.
Mr. Gagandeep Singh, Advocate for
Mr. C.S. Bakshi, Advocate
for the respondents.
HARSIMRAN SINGH SETHI, J. (Oral)
1. In the present appeal, the challenge is to the judgment and
decree of the Lower Appellate Court dated 20.05.2017 by which, the
judgment and decree of the trial Court dated 16.03.2017 has been set aside
and the suit filed by the appellant/plaintiff has been dismissed.
2. Certain facts may be noticed for the correct appreciation of the
issue in hand. While the appellant/plaintiff was working as Lower Division
Clerk (LDC) with the respondent/Department, departmental proceedings
were initiated against the petitioner for embezzlement of Nigam's revenue.
Along with the disciplinary proceedings, even the criminal proceedings
were initiated for the embezzlement of the amount and as both the
proceedings were being simultaneously held, the appellant/plaintiff filed a
civil suit being civil suit No. 2013 of 2010 with the prayer that till the
criminal proceedings are over, the departmental proceedings be kept in
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abeyance. The said civil suit was dismissed and ultimately, the
departmental proceedings were concluded by the respondent and the
appellant/plaintiff was found to be guilty and a recovery of Rs.14,46,188/-
was imposed upon the appellant/plaintiff along with the penalty of stoppage
of two increments and the ACR of the appellant/plaintiff from the year
2006 to 2009 was also downgraded. The appellant/plaintiff never availed
the remedy of appeal against the said punishment and the same attained
finality.
3. Thereafter, the appellant/plaintiff was acquitted in the criminal
proceedings initiated in the FIR No.104 dated 24.05.2008 which was
registered against the appellant/plaintiff by giving him the benefit of doubt
and upon acquittal, the appellant/plaintiff, claimed that as the allegations of
embezzlement have not been proved in the criminal proceedings, the
recovery of Rs.14,46,188/- as ordered in the departmental proceedings is
liable to be set aside and the amount so recovered from the
appellant/plaintiff, is liable to be refunded. As the same was not done, the
appellant/plaintiff filed another Civil Suit No. 2009 of 2016 claiming that
once, the appellant/plaintiff has already been acquitted of the criminal
charge, the recovery imposed in the departmental proceedings is liable to be
set aside.
4. Keeping in view the facts and evidence which had come on
record, the trial Court vide judgment and decree dated 16.03.2017 allowed
the suit filed by the appellant/plaintiff and held that once, the allegation of
embezzlement had not been proved in the criminal proceedings, asking the
appellant/plaintiff to deposit the embezzled amount in terms of the
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punishment as ordered in the disciplinary proceedings, is arbitrary and
illegal.
5. Against the decree and judgment of the trial Court, the
Department preferred an appeal before the Lower Appellate Court and the
Lower Appellate Court vide judgment and decree dated 20.05.2017, held
that once, the departmental proceedings had attained finality wherein, the
recovery of Rs.14,46,188/- was imposed upon the appellant/plaintiff,
merely a subsequent acquittal in the criminal proceedings by the competent
Court, will not render the disciplinary proceedings bad and once the
disciplinary proceedings have attained finality, the punishment of recovery
of embezzled amount imposed during disciplinary proceedings is valid and
cannot be set aside and the judgment and decree of the trial Court dated
20.05.2017 was set aside and the suit filed by the appellant/plaintiff was
dismissed. Hence, the present regular second appeal.
6. Learned counsel for the appellant argues that the once, the
appellant has been acquitted of the charges of the embezzlement by the
competent Court dealing with the said allegation in the criminal
proceedings, holding the appellant guilty in the departmental proceedings
looses its significance and any punishment order passed in the departmental
proceedings, is liable to be set aside upon acquittal in the criminal case.
7. The said argument has already been dealt with by the Lower
Appellate Court starting from paragraph 15 onwards in the impugned
judgment. Keeping in view the settled principle of law, mentioned in the
judgment itself, the Lower Appellate Court has come to the conclusion that
the acquittal in the criminal case will have no bearing upon the disciplinary
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proceedings where an employee has already been convicted and merely that
by giving benefit of doubt, employee has been acquitted in criminal
proceedings, charges proved in disciplinary proceedings cannot be treated
as invalid.
8. The said findings have been recorded by the Court below on
the basis of the settled principle of law that the evidence required to prove
the allegation in the departmental proceedings is entirely different as
compared to the evidence required to prove a guilt in the criminal
proceedings. Further, it may be noticed that as per the settled principle of
law settled by the Hon'ble Supreme Court of India, even if no disciplinary
proceedings have been initiated during the pendency of the criminal
proceedings on the same set of allegations, the Department is well within its
jurisdiction to initiate the departmental proceedings even if the employee
concerned has been acquitted in the criminal proceedings. Support can be
taken from the judgment of the Hon'ble Supreme Court of India in Civil
Appeal No. 1763-1764-2022 titled as State of Karnataka and another
Vs. Umesh, decided on 22.03.2022. Relevant para 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
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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"
9. Keeping in view the above, the findings recorded by the Lower
Appellate Court are in consonance with the settled principle of law as well
as the evidence which have come on record. The judgment and decree of
the trial Court has rightly been set aside as the same is perverse to the
settled principle of law.
10. Keeping in view the above as no perversity in the judgment of
the Lower Appellate Court has been pointed out by the learned counsel for
the appellant, no interference is called for by this Court in the regular
second appeal and the same is dismissed.
11. Pending applications, if any, shall also stands disposed of.
(HARSIMRAN SINGH SETHI)
(JUDGE)
06.03.2024
kv
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
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