ORDER [ENTITY], J.
1. A common order is being passed in this petition and the connected writ petition ([CASE NUMBER], [PRECEDENT]) as the points raised in these petitions and the reliefs claimed by them are similar.
2. The two petitioners in the two cases are employed in the Food Corporation of India. By chance they appeared as witnesses in a criminal case instituted by the C.B.I., under the provisions of [ACT] in the Special Court at Jabalpur. That was a trap case against one [ENTITY], Health Inspector employed with Central Railway. A trap was laid by the C.B.I, against the above-named employee of the Central Railway while he was offered currency note of Rs. 50/- by the complainant [ENTITY] as bribe which was alleged to have been accepted by the above-named employee and witnessed by the two petitioners.
3. The statement of the two petitioners as witnesses were recorded under [SECTION], [ACT]. Thereafter, they appeared as witnesses in the criminal case. They were examined by the prosecution. In their cross-examination, they stated that they could not clearly see the handing over of currency note by the complainant [ENTITY] to the railway employee [ENTITY] and they could not hear the talk that took place between them because by that time the train had arrived and there was commotion. The complainant [ENTITY] also did not support fully the prosecution case. The Special Judge, therefore, by judgment passed on 28-9-1995 acquitted the railway employee [ENTITY]. The grounds of acquittal stated by the Special Judge in his judgment are that the complainant did not fully support the prosecution case; the petitioners as the two witnesses to the trap laid by the police did not support the case in their cross examination; they were not even declared hostile by the prosecution and were not cross-examined by it.
4. After the criminal case resulted in acquittal of the railway employee, the respondents representing the employer, Food Corporation of India, very candidly admitted, as stated in their return, that a confidential letter was received by the Regional Manager of the F.C.I, from the D.I.G. of the C.B.I. Lucknow along with the comments of the S.P. (C.B.I.), Jabalpur. It was informed by the officials of the C.B.I, that it was because the two petitioners had resiled from their earlier versions given to the police in their statements recorded under [SECTION], [ACT] and in their examination-in-Chief, that the railway employee was acquitted. It is stated that the two employees are guilty of giving false evidence and it was recommended that they should be proceeded against departmentally.
5. It is obvious to this Court that it was on the basis of the above said confidential letter of the D.I.G. (C.B.I.), Lucknow Region, that the two petitioners were served with two separate charge-sheets alleging therein that they are guilty of giving false evidence in criminal court which resulted in acquittal of the above-mentioned railway employee. Their conduct is held liable to disciplinary action under F.C.I. Staff [SECTION].
6. Shri [ENTITY], learned counsel appearing for the two petitioners, by these petitions, seeks quashing of the charge-sheets and proposed disciplinary action against the petitioners. The contention advanced by him is that the petitioners' conduct as witnesses in the criminal case has no direct or remote connection with their service. In the absence of any service misconduct, disciplinary action only on the advice of the D.I.G. of C.B.I, could not be instituted. The second ground urged is that accepting all the facts mentioned in the charge-sheet and the statement of amputations, no case for initiation of disciplinary action under above-mentioned regulations of the Staff Regulations is warranted. On behalf of the petitioners, reliance is placed on [PRECEDENT], [PRECEDENT] and [PRECEDENT].
7. Shri [ENTITY], learned counsel appearing for the respondents representing the employer, Food Corporation of India, has tried to justify the disciplinary action initiated by the two impugned charge-sheets. On behalf of the F.C.I, it is submitted that the petitioners are guilty of giving false evidence and, therefore, their honesty is doubtful. There cannot be two standards of honesty in service and other walks of life. It is contended that the conduct of the petitioners, as disclosed in the criminal case and commented upon by the officers of the C.B.I., justifies disciplinary action against them for want of honesty and integrity on their part.
8. The petitions filed by the petitioners are also opposed on the ground that they have rushed to this Court without even filing a reply to the charge-sheet. It is submitted that the Supreme Court in [PRECEDENT], [PRECEDENT] and [PRECEDENT], refused to interfere in disciplinary proceedings at the stage of charge-sheet only on the ground that the employees did not oppose the continuance of the enquiry before the disciplinary authority and did not wait for its verdict. It is also contended that at this stage this Court should refrain from going into the correctness of the allegations in the charge-sheet and make attempt to decide whether the continuance of the enquiry would be fruitful or not. Reliance is placed on [PRECEDENT]'s case (supra).
9. It is necessary to first dispose of the objection of a preliminary nature raised by the learned counsel appearing for the respondent to oppose the petitions. It is contended that the petitioners have rushed to this Court without raising the necessary grounds against holding of a disciplinary enquiry before the disciplinary authority. The petitions are, therefore, premature and should not be entertained on that short ground.
10. In the opinion of this Court, as in the instant case, a definite stand has been taken on behalf of the employer in support of the continuance of the disciplinary action, relegating the petitioner to urge the grounds raised in this petition before the disciplinary authority would be to wait for foregone conclusion or verdict. Leaving the case for decision of the disciplinary authority would, in the circumstances, be an exercise in futility. The preliminary objection is, therefore, rejected.
11. Before considering the grounds urged against the disciplinary action, it has to be stated at the outset that the principle on which, in exercise of inherent powers of this Court under the [ACT], a criminal case is liable to be quashed, can be extended also to disciplinary proceedings. This Court would quash the disciplinary proceedings only if accepting all the allegations in the charge-sheet as true no case for proceedings with the enquiry is made out. This Court would not go into the correctness or otherwise of the allegations made in the charge-sheet. Keeping in mind the above limits of the power of the Court in the matter of quashing of disciplinary action, this Court proposes to examine whether the contentions advanced on behalf of the petitioners have any force.
12. It is obvious from the frank admission made by the employer in its return that the disciplinary action was initiated on the confidential letter of D.I.G. (C.B.I.) which has endorsed the opinion of S.P. (C.B.I.), Jabalpur. According to the recommendations made by the office of the C.B.I., the two petitioners in not adhering to their version of the trap case as recorded in their [SECTION], [ACT] statement and in examination-in-chief, have given false evidence. They resiled from their earlier statements in their cross-examination. If the allegations on the record of the criminal case are found to be true, an offence of perjury under [SECTION] of the [ACT] is made out. The Power to punish a witness for perjury is only with the Court in accordance with the provisions of [SECTION] of the [ACT] which require holding of an enquiry, recording a finding and making a complaint for trial by a competent Magistrate. If the judgment of the criminal Court is carefully perused, the criminal Court has refused to rely on the prosecution case because it was not supported by the complainant himself, and the petitioners as the two witnesses did not implicate the accused in their version given in the cross-examination. The Criminal Court, therefore, held the offence to have not been proved. The Criminal Court in its judgment has not expressed any opinion that the petitioners as two witnesses have given any false deposition. The criminal Court also did not consider it necessary to initiate any action for prosecuting the two petitioners for alleged offence of perjury punishable under [SECTION], [ACT]. The act of the petitioners in judicial proceedings which amounts to a criminal offence of perjury, to be tried in accordance with the [ACT], cannot be allowed to be dealt with departmentally by the employer. If the employer is held to be empowered to hold the petitioners guilty of perjury, the course adopted would indirectly mean usurpation by the departmental authorities the Powers of Criminal Court.
13. The second question that arises is whether giving false evidence in the criminal case by the two petitioners which amounts to an offence of perjury in criminal law can be dealt with as a service misconduct. From the charge-sheet and the statement of imputations accompanying the same, it is obvious that the petitioners are being held liable for disciplinary action for giving false evidence in criminal Court "with some ulterior motive and undue favour to the accused [ENTITY]", Health Inspector in Railways.
14. The above conduct of the petitioners is held to be violative of [SECTION] of the [ACT] and, therefore, a misconduct. The relevant Regulations mentioned in the charge-sheet may be examined to find out whether a case of misconduct would be made out against the petitioners. [SECTION] reads thus :
"32. Every employee shall serve the Corporation honestly and faithfully and shall endeavour his utmost to promote the interest of the Corporation. He shall show courtesy and attention in all transactions and not do anything which is unbecoming of a Corporation employee."
It is difficult to hold that the act of the two petitioners in giving the alleged false evidence in a criminal case, was an act of any dishonesty or lack of faith whereby any interest of the Corporation was harmed. It is also difficult to accept that in appearing as witnesses in the criminal case and getting their statements recorded, there was any 'want of courtesy and attention in transactions' which can be said to be a conduct unbecoming of a Corporation employee.
15. In order to take recourse to [SECTION], it is necessary that the conducts complained of and proposed to be disciplinarily dealt with should have some nexus or connection with the employment or service relationship between the employer and employee. The petitioner's conduct as witnesses in criminal Court had no nexus whatsoever with their service relationship or obligations towards the employer. [SECTION], therefore, is not at all attracted.
16. The other Regulation resorted to is [SECTION] i.e. "Commission of any act which amounts to a criminal offence involving moral Turpitude". The alleged act of perjury would have amounted to a criminal offence only if the criminal Court would have described the petitioner's deposition to be false and would have taken recourse to [SECTION], [ACT] by initiating prosecution of the petitioners for perjury. Accepting all the allegations in the charge-sheet as true, based on petitioner's depositions as reproduced in the statement of imputations enclosed with the charge-sheet, they are said to have given inconsistent version of the trap case. In their cross-examination they stated that from a distance they saw the complainant giving some thing to the accused, but they could not overhear their talks because of the commotion on arrival of the train at that very time.
17. The above part of deposition which is relevant and reproduced in the statement of allegations, does not prima facie amount to a criminal offence involving moral turpitude. Merely because the petitioners' version of the incident in the cross-examination is not fully consistent with their version given to the police under [SECTION], [ACT] and in their examination-in-chief before the criminal Court, it cannot be said that the last version of the incident given by them to the Court was a false evidence. It was not so held by the criminal Court and no action for perjury was taken by that Court. On the existing facts, as stated in the charge-sheet, no case of 'commission of any act which amounts to a criminal offence involving moral turpitude' has been made out or could be alleged against the petitioners. Therefore, [SECTION] also can have no application.
18. The other Regulation referred in the charge-sheet is [SECTION] which reads - "Commission of any act subversive of discipline or of good behaviour." The said [SECTION] is also concerning the conduct of the employee in discharge of his duties which can be described as some act of indiscipline or bad behaviour of the employee in discharge of his duties. It implies some act in connection with his employment. Conduct of the employee in his private life cannot be said to fall under the above-quoted Regulation. Giving evidence in a criminal case on the basis of which an accused is acquitted is neither an act "subversive of discipline or of good behaviour." Whether the evidence given by the petitioners in the criminal Court was false or true cannot be the subject matter of a disciplinary enquiry as the said conduct has absolutely no connection or nexus with the service relationship between the parties.
19. The other Regulation relied on in the charge-sheet is [SECTION] which reads - "Any act unbecoming of an employee of the Corporation." This Regulation also, in the opinion of this Court, is concerning some conduct or act of the employee, qua an employee of the Corporation and not in his private capacities. When the two petitioners appeared as witnesses in the criminal case, they appeared not in their capacities as employees of the Corporation concerning any Corporation case, but in their private capacities. It is likely that they happened to be present at the railway station when the trap was laid by the C.B.I, against the accused. Their services were obtained in witnessing the trap and they deposed before the Court in the manner they did. That conduct of the petitioners in a Court of law could not be held to be a 'misconduct' by the employer for holding a disciplinary action against them as their conduct as witnesses in criminal Court was not a conduct in relation to their service. The Regulations enumerate various misconducts which are service misconducts and which alone can be disciplinarily dealt with by the employer. Such conducts in the private life of the petitioners which have no direct or remote nexus with their service cannot be subject matter of a disciplinary enquiry.
20. The expression "misconduct" is an expression of wide amplitude. But, in order to justify a disciplinary action by the employer, it must be some conduct contrary or inconsistent with the fulfilment of the express or implied conditions of service. Some nexus of the conduct with service, therefore, must exist to justify a disciplinary action particularly where the employer in its service regulations has enumerated the acts of misconduct. Any particular misconduct which is not comprehended in the enumerated misconducts in the Regulations cannot be disciplinarily dealt with. See - the following observations of the Supreme Court in [PRECEDENT] :-
"The High Court while dismissing the petition held that even if the allegation of misconduct does not constitute misconduct amongst those enumerated in the relevant service regulations yet the employer can attribute what would otherwise per se be a misconduct though not enumerated and punish him for the same. This proposition appears to us to be startling because even though either under the Certified Standing Orders or service regulations, it is necessary for the employer to prescribe what would be the misconduct so that the workman/employee knows the pitfall he should guard against. If after undergoing the elaborate exercise of enumerating misconduct, it is left to the unbridled discretion of the employer to dub any conduct as misconduct, the workman will be on tenterhooks and he will be punished by ex post facto determination by the employer."
The petitioner in the case (supra) before the Supreme Court was proceeded against for suppression of some material fact in seeking employment. That was not enumerated as one of the misconducts in the Certified Standing Orders or the Regulations. The Supreme Court did not approve the view expressed by the High Court and refused to sustain the disciplinary action of the employer.
21. On behalf of the employer it was urged that the question whether the petitioners have given false evidence or not in the criminal Court would be subject matter of evidence in the departmental enquiry and this Court should allow the disciplinary action to proceed because the said question cannot be decided without evidence. As has been held by this Court in preceding paragraphs, the allegations in the charge-sheets are that the petitioners have given false evidence in order to favour the accused in the criminal case. Accepting those allegations to be true, the said conduct in a Court of law has no connection with the service of the petitioners. It would not amount to a "service misconduct" for which they can be made answerable in a disciplinary action instituted at the instance of the employer. It appears that the employer found itself to some extent bound by the recommendations or advice sent by the office of C.B.I, and fell into error of issuing charge-sheets against the two petitioners.
22. For the reasons aforesaid, the petitions deserve to succeed and they are allowed. The impugned charge-sheets issued against the petitioners in the two petitions as also all consequent actions taken or proposed therein are hereby quashed. In the circumstances, the parties shall bear their own costs.