The petitioner before this Court has filed this petition being aggrieved by the order passed by the Central Administrative Tribunal dated 24.1.2017 in O.A.No.0A170/626/2016[V. Gopala Reddy .vs. The Director/E(O)I and others].
2. The facts of the case reveal that the petitioner was appointed as Grade 'C' employee in 1981 and was promoted to Group-A post on 17.02.2000 and while he was working as Deputy Chief Engineer, Junior Assistant Grade, First Information Report was lodged against him by the CBI, Hyderabad, on 25.06.2010. Accordingly, case was registered against him and at the same time, a charge sheet was also issued on 23.10.2011. Thus, the facts makes it very clear that he was subjected to two different proceedings one (A) under the Railway Servants(Discipline and Appeal) Rules, 1968 (for short "Rules, 1968") i.e. departmental enquiry and another (B) criminal case for offences punishable under Sections 7 and
13 of the Prevention of Corruption Act. He was convicted on 1.9.2014. However, the judgment of conviction was set aside by the High Court of Telangana in Crl.A.No.900/2014 on 8.9.2014. The petitioner-employee after his acquittal has challenged issuance of charge sheet by the Department and the Tribunal has dismissed his Original Application by an order dated 5.3.2020. The order passed by the Tribunal was subjected to judicial scrutiny and this Court has dismissed the writ petition preferred by the present petitioner in which charge sheet dated 23.10.2011 was the subject-matter of challenge. The order passed by this Court in W.P.No.10838/2020 is reproduced as under: "The present writ petition is arising out of the order dated 5.3.2020 passed by the Central Administrative Tribunal, Bengaluru, in OA.No.170/00582/2019 (Sri
V.Gopala Reddy vs. The Secretary and others).
2. The facts of the case reveal that the present petitioner at the relevant point of time while serving in Indian Railways was subjected to disciplinary proceedings and a charge memo was issued on 23.10.2011. The Articles of charges were issued under Rule 9 of the Railway Servants (Discipline and Appeal) Rules, 1968 and the same read as under; Article I That the said Sri V.Gopala Reddy Dy.CE/G/CN/BNC, while working as Sr.DEN/West/SC had kept two variation statements of agt No.20/West/08 dated 15.4.2008 unsactioned for a long period (more than 1 years in one case and for more than 6 months in the second case). By the aforesaid act, the said Sri V.Gopala Reddy, Dy.CE/G.CN/BNC failed to maintain absolute integrity and devotion to duty and thus violated Rule No.3(1)(i), (ii) and (iii) of the Railway Services (Conduct) Rules 1966. Article II Sri.V.Gopala Reddy, Dy.CE/G/CN/BNC, while working as Sr.DEN/West/SC during 2010, had committed serious misconduct in as much as demanding and accepting bribe amount of Rs.10,000/- from Sri Srinivasa Prasad, Managing Partner, M/s.Bhaskara Enterprises, Hyderabad for approving the pending variation bills. By the aforesaid act, the said Sri V.Gopala Reddy, Dy.CE/G.CN/BNC failed to maintain absolute integrity and devotion to duty and thus violated Rule No.3(1)(i), (ii) and (iii) of the Railway Services (Conduct) Rules, 1966.
3. Another important aspect of the case is that a criminal case was registered against the petitioner/employee and he was convicted by the CBI Court vide judgment of conviction dated 1.9.2014. Thereafter, he preferred an appeal before the High Court of Telangana and the Telangana High Court in Criminal Appeal No.900/2014, vide judgment dated 8.4.2019, has acquitted the petitioner. Thereafter, the matter is now pending before the Honble Supreme Court in SLP No.8923/2019 as informed by the learned counsel for the Indian Railways in the open Court and the State has filed the said appeal against acquittal.
4. The retired employee after his acquittal came up before the Tribunal by filing the Original Application and the Tribunal has dismissed the application and has granted liberty to the employer to proceed ahead in accordance with law with the departmental enquiry.
5. The reliefs prayed in the Original Application are reproduced as under;
a) In view of applicants honorable acquittal in trap case in Criminal Appeal No.900/2014 decided on 8.4.2019 Anneuxre- A1, this Honble Tribunal may be pleased to hold that there cannot be any possibility of recording a finding to the contrary on the very same evidence by the domestic inquiry in the pending disciplinary matter with reference to the impugned charge memo dated 23.10.2011 Ann-A2 issued by Respondent No.2 GM SWR Hubballi and as such continuation of the disciplinary proceedings in respect of the charge memo in question would be unjust, unfair and rather oppressive and liable for quashing on that ground in terms of the law laid down by the Apex Court in Capt.M.Paul Anthony case (Civil Appeal No.1906/1999 decided on 30.03.1999, Ann-A16) and in G.M.Tanks case (Civil Appeal No.2582/2006 decided on 10.5.2006 Annexure-A11). Consequently;
b) Quash the disciplinary proceedings initiated against the applicant by GM SWR Hubballi R-2 herein under No.P/UBL/227/GAZ/W/VGR/246 dated 23.10.2011 Annexure-A2 with all consequential benefits including issue of directions to the respondents for opening of the sealed cover relating to formation of SG/IRSE panel with reference to the DPC proceedings held in July 2013 as evidenced by information furnished by the Railway Board to the applicant under communication dated 16.1.2014 Annexure-A15 with reference to applicants RTI query and if the applicant is found fit for placement in the SG IRSE scae, to extend the same w.e.f, 1.1.2013 on par with his 1999 batch beneficiaries as evidenced by Railway Board order dated 30.08.2013 Ann-A13 along with monetary benefits flowing there from.
6. The only relief which was prayed before the Tribunal was in respect of the charge memo issued against the employee with respect to the disciplinary proceedings and the employee wanted the charge memo to be quashed as he was given a clean chit by the High Court of Telangana in respect of criminal case. The Tribunal has dismissed the Original Application with a liberty to the department to proceed ahead in accordance with law to conclude the departmental enquiry.
7. Before the Tribunal, learned counsel for the petitioner has placed reliance upon the judgments delivered in the case of Nelson Motis vs. Union of India, reported in AIR 1992 SC 1981; Lalit Popli vs. Canara Bank in CA.No.3961/2011, decided on 18.2.2003 and Allahabad Co-operative Bank Ltd., vs. Vidhya Varidh Mishra, in CA No.5179/2004 decided on 11.8.2004.
8. Before this Court, heavy reliance has been placed upon a judgment delivered in the case of G.M.Tank vs. State of Gujarat and others, reported in 2006(5) SCC 446. Paragraph 31 of the aforesaid judgment reads as under: In our opinion, such facts and evidence in the departmental as well as criminal proceedings were the same without there being any iota of difference, the appellant should succeed. The distinction which is usually proved between the departmental and criminal proceedings on the basis of the approach and burden of proof would not be applicable in the instant case. Though the finding recorded in the domestic enquiry was found to be valid by the Courts below, when there was an honourable acquittal of the employee during the pendency of the proceedings challenging the dismissal, the same requires to be taken note of and the decision in Paul Anthony's case ( (1999) 3 SCC
679 ) will apply. We, therefore, hold that the appeal filed by the appellant deserves to be allowed. This Court has carefully gone through the aforesaid judgment, however, the present case is having a distinguishable feature. In the present case, the employee has been acquitted by giving him the benefit of doubt and in Tank's case it was a case of honourable acquittal.
9. Hence, a prayer has been made that as the petitioner has been acquitted in the criminal case, the question of proceeding ahead with the domestic enquiry does not arise.
10. It is also brought to the notice of this Court that later on the appointing authority in exercise of powers conferred under Rule 1802(a) of the Indian Railway Establishment Code Vol.II has passed an order retiring the present petitioner from service on attaining the age of 50 years. The aforesaid order is subject matter of another Original Application and therefore, the same is not being dealt with in the present writ petition. This Court is confined only with respect to the departmental enquiry initiated vide charge memo issued on 23.10.2011 and the basic question before this Court is whether on account of acquittal, the departmental enquiry also comes to an end or not.
11. The Apex Court in the case of Management of Bharat Heavy Electricals Limited Vs. M.Mani, reported in (2018) 1 SCC 285, in paragraphs 30 to 34 has held as under:-
30. An act of theft committed by an employee while on duty is a serious charge. This charge once proved in enquiry, the employer is justified in dismissing the employee from service.
31. We are not impressed by the submission urged by the learned counsel for the respondents (employees) when he urged that once the respondents (employees) were acquitted from the charge of theft by the criminal Court, the dismissal orders deserve to be set aside entitling the employees to seek reinstatement in service. Learned counsel read the entire criminal Court's order to show that it was an honorable acquittal of the employees from the charge of theft.
32. The answer to the aforementioned submission lies in the law laid down by this Court in the case of Karnataka SRTC (supra). At the cost of repetition, we may say that in the case on hand, the dismissal orders had not been passed on the basis of employees' conviction by the criminal Court which later stood set aside by the superior Court. Had it been so, then the situation would have been different because once the conviction order is set aside by the superior Court, the dismissal order which was solely based on passing of the conviction order also stands set aside. Such was not the case here.
33. In the case on hand, the appellant (employer) had conducted the departmental enquiry in accordance with law independently of the criminal case wherein the Enquiry Officer, on the basis of the appreciation of evidence brought on record in the enquiry proceedings, came to a conclusion that a charge of theft against the delinquent employees was proved. This finding was based on preponderance of probabilities and could be recorded by the Enquiry Officer notwithstanding the order of criminal Court acquitting the respondents.
34. In view of the foregoing discussion, the appeals succeed and are allowed. Impugned judgment is set aside. As a consequence thereof, the dismissal orders of the respondents herein are held legal and proper and accordingly upheld.
12. In the considered opinion of this Court, in a criminal case an offence has to be proved beyond reasonable doubt whereas in departmental enquiry proceedings the theory of preponderance of probability has to be taken into account while establishing the charges against the employee. There cannot be any automatic quashment of the charge memo solely on the ground of acquittal in a criminal case even though they are arising out of the same incident and therefore, in the considered opinion of this Court, Tribunal was justified in dismissing the Original Application preferred by the present petitioner.
13. Resultantly, the employer shall be free to proceed ahead in accordance with law with the departmental proceedings. Writ petition stands dismissed accordingly. No order as to costs."
3. The aforesaid case was in respect of charge sheet issued by the department for holding an inquiry and the department is certainly free to proceed ahead in accordance with law. Sri.Kulkarni, learned counsel has argued before this Court that the employee in question after his conviction was dismissed by issuing a memorandum under Rule 14(i) of the Rules, 1968. His contention is that once the basis of issuing the memorandum is not in existence on account of his acquittal, the memorandum also deserves to be set aside.
4. Rule 14 of Rules, 1968 provides for procedure in certain cases and the same is produced as under: "14. Special procedure in certain cases- Notwithstanding anything contained in Rules 9 to 13-
(i) Where any penalty is imposed on a Railway servant on the ground of conduct which has led to his conviction on a criminal charge; or
(ii) Where the President authority is satisfied, for reasons to be recorded by it in writing, that it is not reasonably practicable to hold an inquiry in the manner provided in these rules; or
(iii) Where the President is satisfied that in the interest of security of the state, it is not expedient to hold an inquiry in the manner provided in these rules; The disciplinary authority may consider the circumstances of the case and make such orders thereon as it deems fit; Provided that the Railway servant may be given an opportunity of making representation on the penalty proposed to be imposed before any order is made in a case falling under clause (i) above; Provided further that the Commission shall be consulted, where such consultation is necessary, before any orders are made in any case under this Rule."
5. In the considered opinion of this Court, as the petitioner was acquitted in the criminal case, the memorandum issued on 10.5.2016 has lost its value and the Tribunal has erred in not quashing the same. Resultantly the petition preferred by the petitioner deserves to be allowed.
6. Resultantly, the writ petition stands allowed and the memorandum dated 10.5.2016 stands set aside. No orders as to costs.
7. All pending interlocutory applications, if any, stand disposed of. Sd/- JUDGE Sd/- JUDGE *alb/-.
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