Citation Codes

Equivalent Citations

citation codes

Case Number

B-91 (T) of 1986 (CWJC No. 1695 of 1985)

Judges

Nazir Ahmad, Vice Chairman
S.D Prasad, Administrative Member

Acts

sub-section (2) of Section 5(2)(b) of the Prevention of Corruption Act
sub-rule (4) of rule (5) of the Railway Servants (D & A) Rules, 1968
SECTION 29 ADMINISTRATIVE TRIBUNALS ACT 1985
Sections 120B/167/420 of the Indian Penal Code
Rule 1602 of the Railway Establishment Code,
Sub-rule (4) of rule (5)
rule 5(4)

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Smart Summary

Tribunal Opinion Summary — Shri Ram Bahadur Prasad Verma

Factual and Procedural Background

The petitioner, Shri Ram Bahadur Prasad Verma, originally moved the Patna High Court in C.W.J.C. No. 1695 under Articles 226 and 227 seeking quashing of directions (ii) and (iii) of an order dated 24.1.1984 (Annexure-6) issued by Respondent No. 2 (Senior Divisional and Operating Superintendent (Transportation), Eastern Railway, Danapur). The relief sought related to a direction to hold further departmental enquiry and to treat the petitioner as deemed under suspension with effect from 7.4.1978 under sub-rule (4) of rule (5) of the Railway Servants (Discipline and Appeal) Rules, 1968. The matter was transferred to the Administrative Tribunal under section 29 of the Administrative Tribunals Act, 1985.

Material events recited in the opinion: the petitioner, while serving as Yard Master at Sone Nagar Railway Station, was charged (in Special Case No. 17 of 1973) under Sections 120B, 167 and 420 of the Indian Penal Code and under sub-section (2) of Section 5(2)(b) of the Prevention of Corruption Act for alleged irregular despatches of coal between March and June 1973. He was suspended with effect from 4.11.1975; convicted by the Sub-Judge (CBI), North Bihar, Patna by a judgment dated 4.7.1977; and, as a consequence, served with a show-cause notice dated 14.12.1977 proposing dismissal/removal. The petitioner appealed (Criminal Appeal No. 241 of 1977) to the High Court.

An order dated 28.3.1978 (annexed as Annexure-2) removed the petitioner from service with effect from 7.4.1978. The High Court, however, set aside the conviction by judgment dated 12.9.1983 (Annexure-3), resulting in the petitioner seeking reinstatement and reimbursement of costs (letters dated 21.11.1983 and 23.11.1983 respectively). Respondent No. 2 thereafter issued Annexure-6 (24.1.1984) setting aside the earlier removal order but directing a further enquiry “on the allegations which led to the imposing of penalty of removal” and deeming the petitioner to have been under suspension from 7.4.1978 under sub-rule (4) of rule (5). No departmental enquiry was actually instituted before the petitioner’s superannuation shortly thereafter.

Note: The opinion records the petitioner’s superannuation “only a week later” and supplies two different dates in the text (one instance states 1.2.1985, while later paragraphs describe the retirement as occurring a week after the orders issued in January 1984 and refer to 1.2.1984). The opinion itself contains this inconsistency.

Legal Issues Presented

Whether directions (ii) and (iii) of the order dated 24.1.1984 (Annexure-6) — directing a further departmental enquiry “on the allegations which led to the imposing of the penalty of removal” and deeming the petitioner to have been under suspension from 7.4.1978 under sub-rule (4) of rule (5) — should be quashed.
Whether, in the circumstances (including the High Court’s acquittal), a departmental proceeding could validly be initiated on the same facts and whether continuation of suspension by deeming was justified.
What relief, if any, should be granted to the petitioner following the High Court’s acquittal (including consideration of reinstatement, arrears and reimbursement under Rule 1602 of the Railway Establishment Code, Vol. I).

Arguments of the Parties

Petitioner's Arguments

The petitioner sought quashing of clauses (ii) and (iii) of Annexure-6 which directed a further departmental enquiry and a deeming of suspension from 7.4.1978.
He relied on the High Court judgment dated 12.9.1983 (Annexure-3) setting aside his criminal conviction and contended that he had obtained an honourable acquittal.
He sought reinstatement with consequential benefits (letter dated 21.11.1983) and reimbursement of costs incurred in defending the criminal proceedings under Rule 1602 of the Railway Establishment Code (letter dated 23.11.1983).

Respondents' Arguments

The respondents contended that the petitioner’s acquittal was not entirely “honourable.”
They maintained that the directions in Annexure-6 were in accordance with the Railway Servants (Discipline and Appeal) Rules, 1968.
The counter-affidavit acknowledged that, following Annexure-6, the respondent later decided not to hold the departmental enquiry — a development said to have resulted from the petitioner’s impending retirement.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Judgment of the Hon'ble High Court in Criminal Appeal No. 241 of 1977 (Annexure-3), dated 12.9.1983	Demonstrated that the petitioner was acquitted on the criminal charges; articulated that criminal prosecution requires positive legal or circumstantial evidence to prove criminality and that in the instant case such evidence was absent.	The tribunal relied on this judgment to conclude that the petitioner obtained a clean acquittal in the criminal proceedings and that there was no evidence of criminality sufficient to sustain the criminal charges. The tribunal nevertheless observed that departmental proceedings could still be possible on the same facts but rejected the form and purpose of Annexure-6 as issued.

Court's Reasoning and Analysis

The tribunal proceeded by reference to the documentary record and the parties' affidavits:

The tribunal accepted the factual matrix: charges and prosecution (Special Case No. 17 of 1973), suspension from 4.11.1975, conviction by the trial court (4.7.1977), show-cause notice (14.12.1977), removal order effective 7.4.1978, subsequent quashing of conviction by the High Court (12.9.1983), and the petitioner’s applications for reinstatement and reimbursement (November 1983 letters).
The tribunal examined the High Court judgment (Annexure-3) and noted that paragraph 14 of that judgment expressly found no legal or circumstantial evidence pointing to guilt and that the acquittal of co-accused undermined the prosecution’s case. Paragraph 15 of the High Court judgment indicated the criminal court did not consider it necessary to decide departmental rule compliance because criminal liability required positive evidence of criminality.
The tribunal recognized the legal principle that an acquittal in criminal proceedings does not automatically preclude departmental proceedings on the same facts; violations of departmental rules can justify departmental discipline even when criminal liability is not established. However, the tribunal found that Annexure-6 was erroneous in stating that a departmental enquiry should be held “on the allegations which led to the imposing of the penalty of removal.”
The tribunal gave two factual reasons for not allowing Annexure-6 to stand: (a) there was no evidence in the respondent’s counter-affidavit that any action was taken against the prime accused in the criminal case, Sri M.M. Sinha, and (b) the respondents themselves stated that after issuing Annexure-6 they decided not to hold the enquiry — apparently because the petitioner was about to retire. The tribunal inferred that the reference to a departmental proceeding was, in substance, a ruse to continue suspension via rule 5(4).
The tribunal analyzed the nature of suspension under the Discipline and Appeal Rules, noting that suspension is not a penalty under those rules and its continued imposition in the absence of any instituted departmental proceeding was unjustified. The tribunal emphasized the presumption of innocence in departmental matters as in criminal matters and pointed out that the contemplated departmental inquiry never commenced while the criminal case ended in acquittal.
On these bases, the tribunal concluded that nothing adverse had been established against the petitioner and that his prolonged suspension (over eight years) had become unjustified. Consequently, the tribunal quashed clauses (ii) and (iii) of the order dated 24.1.1984 (Annexure-6) and directed consideration of the petitioner’s claim under Rule 1602 of the Railway Establishment Code, Vol. I.

Holding and Implications

Holding:

The petition is allowed; the directions contained at Clauses (ii) and (iii) of the Order dated 24.1.1984 (Annexure-6) are hereby quashed.

Immediate implications and directions:

The respondents are directed to consider the petitioner’s letter dated 23.11.1983 (Annexure-5) under Rule 1602 of the Railway Establishment Code, Vol. I, and to give such relief as may be permissible in the circumstances of the case.
There shall be no order as to costs.

Broader implications:

The tribunal explicitly acknowledged the general legal proposition that departmental proceedings may, in principle, be instituted after criminal acquittal on the same facts; however, it found the particular mode and timing of the impugned directions (Annexure-6) unjustified on the facts. The opinion does not purport to establish a new legal precedent beyond the application of established principles concerning suspension, presumption of innocence, and the distinction between criminal and departmental liability.

Disposition: Petition allowed.

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Ram Bahadur Prasad Verma v. Union Of India And Others

Nazir Ahmad, Vice Chairman and S.D Prasad, A.M:— The petitioner, Shri Ram Bahadur Prasad Verma moved the Hon'ble High Court of Judicature at Patna in C.W.J.C No. 1695 under Articles 226 and 227 of the Constitution of ‘India for quashing the directions contained at (ii) and (iii) of the Order dated 24.1.1984 (Annexure 6) passed by Respondent No. 2. the Senior Divisional and Operating Superintendent (Transportation), Eastern Railway, Danapur for holding further enquiry against the petitioner and for placing him under deemed suspension with effect from 7.4.1978, as provided under Sub-rule (4) of rule (5) of the Railway Servants (Discipline and Appeal) Rules, 1968: The case got transferred to this tribunal under section 29 of the Administrative Tribunals Act, 1985.

2. The main facts of the case, according to the petitioner and in so far as these relate to the petition, before us, are that the petitioner, while working as Yard Master of Sone Nagar Railway Station in Danapur Division, was charged under Sections 120B/167/420 of the Indian Penal Code as well as under sub-section (2) of Section 5(2)(b) of the Prevention of Corruption Act and prosecuted along with four others in Special Case No. 17 of 1973 for offences between March and June, 1973 at Sone Nagar Railway Station involving alleged irregular and motivated despatches of coal in contravention of the existing circulars.

3. Pending criminal trial, the petitioner, was put under suspension with effect from 4.11.1975 He was subsequently convicted and-sentenced to various terms of imprisonment by judgment dated 4.7.1977 passed by the Sub-Judge (CBI), North Bihar, Patna. As a sequel to his conviction in a criminal case the petitioner was issued a show cause notice dated 14.12.1977 (Anhexure-1) against the proposed penalty’ of dismissal/removal from service. The petitioner filed his explanation on 12.1.1978 saying that he had preferred an appeal (Criminal Appeal No. 241 of 1977) before the Hon'ble High Court against his conviction and sentence. It is alleged that without waiting for the outcome of the appeal, an order (Annexure-2) was passed by the Respondent No. 2 on 28.3.78 removing the petitioner from service with, effect from 7.4.78 on the ground that he had already been crnvicted on criminal charges. The order of conviction and sentence passed on the petitioner was, however, set aside by the. Hon'ble High Court by judgment dated 12.9.1983(Annexure- 3) in the aforesaid Criminal Appeal No. 241 of 1977. The petitioner claims that he got a clean chit and honourable acquittal from the Appellate Court. Therefore, after obtaining a certified copy of the judgment of the Hon'ble High Court, the petitioner applied to the Divisional Manager, Eastern Railway, Danapur claiming (a) reinstatement in service with all consequential benefits including arrear pay and promotion, vide his letter dated 21.11.1983 (Annexure-4), and (b) reimbursement of costs, under Rule 1602 of the Railway Establishment Code, Volume I, incurred in defending himself in the criminal case before the trial Court and the Hon'ble High Court vide his letter dated 23.11.83 (Annexure-5). While setting aside the earlier order imposing the penalty of removal from service, Respondent No. 2, by his impugned order dated 24.1.1984 (Annexure-6), directed that a further enquiry be held against the petitioner under the provisions of the Railway Servants (Discipline and Appeal) Rules, 1968, “on the allegations which led to the imposing of penalty of removal”, and also directing that the petitioner be deemed under Sub-rule (4) of rule (5) of the Railway Servants (D & A) Rules, 1968 to have been under suspension with effect from 7.4.1978, i.e the date of his conviction in the trial court, and until further orders. It is important to mention that no departmental proceeding or enqiry as contemplated in the aforesaid order was, in fact, instituted against the petitioner, who superannuated from Railway service only a week later’, i.e, from 1.2.1985

4. The facts, as narrated above, have not been seriously controverted in the counter-affidavit filed on behalf of the respondent. It has only been contended that the acquittal of the petitioner was not “honourable” as claimed by him and that the orders contained Annexure-6 were in accordance with the provisions of the Railway Servants (Discipline and Appeal) Rules.

5. The contention that the petitioner's acquittal was not entirely ‘honourable’, does not seem to be well founded. A perusal of the judgment (Annexure-3) of the Hon'ble High Court clearly indicates that the petitioner got a clean acquittal as far as the criminal charges were concerned. Thus, the concluding portion of paragraph 14 of the judgment categorically says, “there is nothing whatsoever which may be said to be legal evidence or even circumstantial evidence clearly pointing to the guilt of the appellants. The petitioner no doubt derived considerable advantage in his appeal before the Hon'ble High Court on account of the clean acquittal of Sri M.M Sinha and Sri Om Prakash Makin by the trial. Court. The following portion reproduced from para 14 of the judgment is thus significant:—

“I have already indicated that the while prosecution suffers from a severe jolt on account of clean acquittal of M.M Sinha and Om Prakash Makin because the charges as they have been levelled against the accused persons at the trial Stage find their base on the initial terminas reflected in Ext. 15 which emanated from M.M.P Sinha, a legally competent authority, and once that is accepted, (as held by the trial court), the consequences ensuing therefrom cannot be branded as offences. The acquittal of M.M.P Sinha means a confirmation of actions. The prosecution against rest of the accused must on that score alone fail.”

6. Paragraph 15 of Annefixure-3, while lending full support to the aforesaid view, makes it clear that the Hon'ble High Court did not consider it necessary to go into the question of compliance with departmental rules and circulars regarding despatch of coal. To quote from para 15 of the judgment:—

“In view of my discussions of the broad principles, I feel no necessity of dealing with evidence of any witness who all have deposed on the question of rule and circulars regarding despatch of coal. Those facts simply give an inkling of some irregularities which might be set fight or redressed by the railway athorities through other forum but the criminal forum can be resorted to only when there is a positive evidence to prove the criminality, which, in the instant case, there is none.”

7. A clean acquittal on criminal charges, however, does not necessarily imply that on the same facts, a departmental proceeding will not lie. There are instances of violation of departmental rules or instructions which would merit severe indictment in the departmental proceeding but would fail to make out a criminal offence of whatsoever nature.

8. It follows, therefore, that a departmental proceeding could be instituted ever, after the acquittal of the petitioner on criminal charges. This could be done on the same facts, but not “on the allegations which led to the imposing of the penalty of removal”, as stated incorrectly in sub-para (ii) of Annexure-6. However, this point need not be laboured further for two reasons. Firstly, no action seems to have been taken by the Railways against Sri M.M Sinha, the prime accused in the criminal case, at whose behest apparently the petitioner and others acted. This is borne out of the averment made in para 20 of the petition, and it has not been” controverted in the counter-affidavit filed on behalf of the respondent. Secondly, the respondent has confirmed that soon after passing the orders contained in Annexure-6, the idea of taking out disciplinary proceeding against the petitioner was given up, presumably because he superannuated only a week later, i.e, with effect from 1.2.1984 Para 10 of the counter-affidavit says, “However, on subsequent development it was decided not to hold the enquiry.” This “subsequent development” obviously refersto the retirement of the petitioner from railway service.

9. Retirement of a railway employee from service in the normal course cannot be considered to be an unforeseen event or sudden development. On 14.1.84, when the impugned orders in Annexure-6 were issued it must be presumed that the impending retirement of the petitioner from railway service only a week later was already a known fact. The necessary inference must, therefore, be drawn that the Order dated 24.1.84, in so far as it related to the contemplated institution of departmental proceeding against the petitioner, did not really mean what it said. A reference to the departmental proceeding was merely a ruse to continue to suspension of the petitioner and invoke rule 5(4) of the Railway Service (Discipline and Appeal) Rules.

10. Suspension of an employee is not one of the penalties specified in the Discipline and Appeal Rules. Had it been so its imposition would have required a definite finding against the employee after going through the procedure laid down for imposing a penalty, major or minor. As in a criminal case so in a departmental proceeding, a person must be presumed to be innocent until the charge against him is proved. In the instant case, the “contemplated” proceeding never really took off. The only proceeding ever instituted against the petitioner, that is the criminal case, ended in his acquittal. Therefore, on the facts as they are, there is nothing to establish in what way the petitioner failed to live up to his obligations as a railway employee. In view of this, we must hold that nothing adverse has been established against the petitioner. His protracted suspension over a period of more than eight years must, therefore, be considered to be hard and unfortunate, even though not altogether unjustified to begin with. The petition is accordingly allowed and the directions at Clauses (ii) and (iii) of the Order dated 24.1.1984 (Annexure-6) are hereby quashed, the respondents are further directed to consider the letter dated 23.11.1983 (Annexure-5) of the petitioner under Rule 1602 of the Railway Establishment Code, Vol. I and give him such relief as may be permissible in the circumstances of the case. There shall be no order as to costs.

11. Petition allowed.

Ram Bahadur Prasad Verma v. Union Of India And Others

Tribunal Opinion Summary — Shri Ram Bahadur Prasad Verma

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Petitioner's Arguments

Respondents' Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Ram Bahadur Prasad Verma v. Union Of India And Others

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