IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP No. 668/2008 Reserved on: 3.12.2009 Decided on: 18.12. 2009 _______________________________________________ Netar Singh. …Petitioner. Versus Managing Director, Himachal Road Transport Corporation and others. … Respondents. _________________________________________________________ Coram: Hon’ble Mr. Justice R.B. Misra, Acting Chief Justice. Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 Yes. For the petitioner : Mr. R.D. Kaundal, Advocate. For the Respondents: Mr. N.K. Thakur, Advocate for respondents No. 1 to 3. _______________________________________________________ Rajiv Sharma, Judge. The petitioner has challenged the award made by the learned Presiding Judge, Labour Court-cum-Industrial Tribunal, Dharamshala in reference No. 179/99 (RBT No. 225/2004) dated 25.8.2005. Material facts necessary for the adjudication of this petition are that the petitioner was appointed as a Driver in the respondent- corporation in the month of August, 1989. He was involved in an 1 Whether reporters of the local papers may be allowed to see the judgment? 2 accident while driving bus on 9/10.4.1993 at village Beri. An FIR was registered against him under sections 279, 337 and 338 of the Indian Penal Code. He was acquitted in case No. 43/2 of 1993. In the meantime, a charge-sheet was also issued to him on 31.12.1993. Inquiry Officer was appointed on 23.2.1994. Inquiry Officer submitted the report to the Disciplinary Authority. Thereafter penalty of removal was imposed upon the petitioner on 26.11.1998. He raised industrial dispute. The State Government made the following reference to the Labour Court: “Whether the action of the (1) Regional Manager, Himachal Road Transport Corporation, Kelong; (2) Divisional Manager, Himachal Road Transport Corporation, Mandi and (3) Managing Director, Himachal Road Transport Corporation, Shimla, H.P. in terminating the services of Sh. Netar Singh, Ex- Driver on the basis of the charges framed by the police and his honourable acquittal by the learned Judicial Magistrate 1st Class, Bilaspur, by absolving him of all these charges, is legal and justified. If not, to what relief of consequential service benefits including re-instatement, back wages, seniority and amount of compensation, Sh. Netar Singh, Ex-Driver is entitled?” The petitioner filed claim petition to which the reply was filed by the respondent-corporation. The Labour Court vide detailed award dated 25.8.2005 answered the reference against the petitioner. Mr. R.D. Kaundal has vehemently argued that the award dated 25.8.2005 is contrary to law and facts. He then contended that copies of the statements of witnesses were not given to his client 3 and this aspect has not been looked into properly by the Labour Court. He has also also contended that it was a case of no evidence and the inquiry report was liable to be set aside on this ground alone. He further contended that it was a case of non-application of mind by the Disciplinary Authority and the copy of the inquiry report has not been supplied to his client before the imposition of penalty, which has caused prejudice to his client. He has finally contended that he was not granted reasonable opportunity during the pendency of disciplinary proceedings. He lastly contended that after the acquittal of his client by the Judicial Magistrate, Bilaspur on 22.6.1996, the disciplinary proceedings could not continue against his client on the same and similar charges. Mr. N.K. Thakur has supported the award dated 25.8.2005 passed by the Presiding Judge, Labour Court-cum-Industrial Tribunal, Dharamshala. We have heard the learned counsel for the parties and have gone through the pleadings carefully. A charge-sheet was issued to the petitioner on 13.12.1993. Inquiry Officer was appointed. The Disciplinary Authority has imposed the penalty of removal upon the petitioner on 26.11.1998. He was acquitted by the Judicial Magistrate on 22.6.1996 in case No. 43/2 of 1993. Petitioner has appeared as PW-1 before the Labour Court. One Sh. Krishan Lal, Senior Clerk has appeared on behalf of respondent-corporation. Petitioner has not substantiated in his statement while appearing as PW-1 which statement of the witness was not supplied to him. 4 Mr. R.D. Kaundal vehemently argued that it was a case of no evidence and the Disciplinary Authority could not take disciplinary action against his client on the basis of the inquiry report. It has come in the record that Sh. Satish Pathania has appeared before the Inquiry Officer. He has deposed that petitioner while driving the bus between Chandigarh towards Kullu has taken his meals at Baner and he saw the petitioner consuming the liquor. He was seen vomiting when the bus crossed Bilaspur. He thereafter drove the bus rashly, which met with accident resulting in injuries to the passengers. Witness Satish Pathania and his wife also sustained injuries. Petitioner ran away from the spot. In these circumstances, it cannot be held that there was no evidence before the Inquiry Officer to prove charges against the petitioner. There is no merit in the contention of Mr. Kaundal that the orders have been passed by the Disciplinary Authority without due application of mind. Petitioner was issued show cause notice on 1.4.1998 after the submission of the inquiry report by the Inquiry Officer to the Disciplinary Authority. He filed reply to the same on 2.5.1998. The Disciplinary Authority has heard the petitioner in person before the imposition of penalty of removal upon him. Petitioner has also failed to substantiate that he was not associated with the inquiry. He has been associated at every stage by the Inquiry Officer. The Inquiry Officer has followed the principles of natural justice as well established procedure while holding inquiry against the petitioner. Mr. Kaundal then argued that it was necessary for the Disciplinary Authority to supply the copy of inquiry report to the 5 petitioner before imposing the penalty of removal upon him. Mr. Kaundal has failed to substantiate what prejudice has been caused to his client by non-supply of the copy of the inquiry report. Their Lordships of the Hon’ble Supreme Court in Haryana Financial Corporation and another versus Kailash Chandra Ahuja, (2008) 9 SCC 31 have held that charged employee must show that prejudice has been caused to him. Their Lordships have further held that non-furnishing of report does not by itself renders punishment invalid. Their Lordships have held as under: “31. At the same time, however, effect of violation of rule of audi alteram partem has to be considered. Even if hearing is not afforded to the person who is sought to be affected or penalized, can it not be argued that notice would have served no purpose" or "hearing could not have made difference" or "the person could not have offered any defence whatsoever". In this connection, it is interesting to note that under the English Law, it was held before few years that non-compliance with principles of natural justice would make the order null and void and no further inquiry was necessary. 36. The recent trend, however, is of `prejudice'. Even in those cases where procedural requirements have not been complied with, the action has not been held ipso facto illegal, unlawful or void unless it is shown that non-observance had prejudicially affected the applicant. 39. In B. Karunakar, this Court considered several cases and held that it was only if the Court/Tribunal finds that the furnishing of the report "would have made a difference" to the result 6 in the case that it should set aside the order of punishment. The law laid down in B. Karunakar was reiterated and followed in subsequent cases also [vide State Bank of Patiala v. S.K. Sharma, (1996) 3 SCC 363; M.C. Mehta v. nion of India, (1999) 6 SCC 237]. 44. From the aforesaid decisions, it is clear that though supply of report of Inquiry Officer is part and parcel of natural justice and must be furnished to the delinquent- employee, failure to do so would not automatically result in quashing or setting aside of the order or the order being declared null and void. For that, the delinquent employee has to show `prejudice'. Unless he is able to show that non-supply of report of the Inquiry Officer has resulted in prejudice or miscarriage of justice, an order of punishment cannot be held to be vitiated. And whether prejudice had been caused to the delinquent- employee depends upon the facts and circumstances of each case and no rule of universal application can be laid down.” Mr. Kaundal further contended that the disciplinary proceedings could not continue after the acquittal of his client by the Judicial Magistrate. We have seen the charge-sheet issued to the petitioner on 31.12.1993 and the issue framed by the Judicial Magistrate on 22.6.1996 while trying criminal case No. 43/2 of 1993. The charges framed before the Judicial Magistrate and allegations of misconduct are entirely distinct and different in the departmental proceedings. In the disciplinary proceedings, the misconduct was attributed to the petitioner, which has resulted into monetary loss also. 7 Their Lordships of the Hon’ble Apex Court in Commissioner of Police, New Delhi versus Narender Singh, (2006) 4 SCC 265 have held that acquittal in criminal trial, not by itself a ground not to initiate or to drop departmental proceedings. Their Lordships have held as under: “13. It is now well-settled by reason of a catena of decisions of this Court that if an employee has been acquitted of a criminal charge, the same by itself would not be a ground not to initiate a departmental proceeding against him or to drop the same in the event an order of acquittal is passed.” Their Lordships of the Hon’ble Supreme Court in Suresh Pathrella versus Oriental Bank of Commerce, (2006) 10 SCC 572 have held that acquittal in a criminal case would be no bar for drawing up disciplinary proceedings against the delinquent officer. The yardstick and standard of proof in a criminal case is different from the disciplinary proceeding. While the standard of proof in a criminal case is a proof beyond all reasonable doubt, the proof in a departmental proceeding is preponderance of probabilities. Their Lordships have held as under: “11. In our view, the findings recorded by the learned Single Judge are fallacious. This Court has taken the view consistently that acquittal in a criminal case would be no bar for drawing up a disciplinary proceeding against the delinquent officer. It is well settled principle of law that the yardstick and standard of proof in a criminal case is different from the disciplinary proceeding. While the standard of proof in a criminal case is a proof beyond all reasonable doubt, the proof in a 8 departmental proceeding is preponderance of probabilities.” Their Lordships of the Hon’ble Supreme Court in General Manager, UCO Bank and another versus M. Venu Ranganath, (2007) 13 SCC 251 have held that departmental inquiry and criminal proceedings operate in two different fields. There is no bar against the initiation of disciplinary proceedings even if a person is acquitted in criminal trial. Their Lordships have held as under: “8. There can be no doubt that criminal proceedings and departmental proceedings operate in different fields. Even though the person may have been acquitted in a criminal trial, there is no embargo on his being departmentally proceeded against. But the question here is slightly different. The relevant provisions need to be quoted: "11. Special procedure in certain cases: Notwithstanding anything contained in regulation 6 or regulation 7 or regulation 8 the Disciplinary Authority may impose any of the penalties specified in regulation 4 if the officer/employee has been convicted on a criminal charge, or on the strength of facts or conclusions arrived at by a judicial trial." Regulation 12: Suspension: (1) An officer employee may be placed under suspension by the competent authority -(a) where a disciplinary proceeding against him is contemplated or is pending; or(b) where a case against him in respect of any criminal 9 offence is under investigation, inquiry or trial. (2) An officer employee shall be deemed to have been placed under suspension by an order of the competent authority (a) with effect from the date of his detention, if he is detained in custody, whether on a criminal charge or otherwise, for a period exceeding forty-eighty hours; (b) with effect from the date of conviction, if in the event of a conviction for an offence, he is sentenced to a term of imprisonment exceeding forty-eight hours and is not forthwith dismissed or removed or compulsorily retired consequent to such conviction. Explanation :- The period of forty-eight hours referred to in clause (b) of this sub- regulation shall be computed from the commencement of the imprisonment after the conviction and for this purpose, intermittent periods of imprisonment, if any, shall be taken into account. (3) Where a penalty of dismissal, removal or compulsory retirement from service imposed upon an officer employee under suspension is set aside in appeal or on review under these regulations and the case is remitted for further inquiry or action or with any directions, the order of his suspension shall be deemed to have continued in force on and from the date of the original order of dismissal, removal or compulsory retirement and shall remain in force until further orders. 10 (4) Where a penalty of dismissal, removal or compulsorily retirement from service imposed upon an officer employee under suspension is set aside or declared or rendered void in consequence of or by a decision of a court of law, and the disciplinary authority, on consideration of the circumstances of the case, decides to hold further inquiry against him on the allegations on which the penalty of dismissal, removal or compulsory retirement was originally imposed, the officer employee shall be deemed to have been placed under suspension by the competent authority from the date of the original order of dismissal, removal or compulsory retirement and shall continue to remain under suspension until further orders. (5) (a) An order of suspension made or deemed to have been made under this regulation shall continue to remain in force until it is modified or revoked by the authority competent to do so. (b) An order of suspension made or deemed to have been made under this regulation may at any time be modified or revoked by the authority which made or is deemed to have made the order." "Regulation 15: Pay allowances and treatment of service on termination of suspension: (1) Where the competent authority holds that the officer employee has been fully exonerated or that the suspension was unjustifiable, the officer employee concerned 11 shall be granted the full pay to which he would have been entitled had he not been suspended, together with any allowance of which he was in receipt immediately prior to his suspension, or may have been sanctioned subsequently and made applicable to all officer employees. (2) In all cases other than those referred to in sub-regulation (1), the officer employee shall be granted such proportion of pay and allowances as the Competent Authority may direct; Provided that the payment of allowances under this sub-regulation shall be subject to all other conditions to which such allowances are admissible: Provided further that the pay and allowances granted under this sub-regulation shall not be less than the subsistence and other allowances admissible under regulation 14. 3(a) In a case falling under sub-regulation (1) the period of absence from duty shall, for all purposes, be treated as a period spent on duty; (b) In a case falling under sub-regulation (2), the period of absence from duty shall not be treated as a period spent on duty unless the Competent Authority specifically directs, for reason to be recorded in writing, that it shall be so treated for any specific purpose. "Clause 22.8 of the Manual "Where a suspended officer employee has been fully exonerated in the departmental enquiry or acquittal by the court of law of the charges levelled against him the competent authority 12 holds that the suspension was unjustifiable, he would be entitled to all benefits to which he would have been normally entitled, had he been on duty. However, the employee in such a case would not be entitled to accumulate leave beyond the permissible limit." In Union of India and others versus Naman Singh Shekhawat, (2008) 4 SCC 1, their Lordships of the Hon’ble Supreme Court have held that departmental inquiry can be initiated after acquittal in a criminal case. However, such powers have to be exercised bona fide, fairly and reasonably when there is evidence to prove the charges. In a recent judgment their Lordships of the Hon’ble Supreme Court in Southern Railway Officers Association and another versus Union of India and others, (2009) 9 SCC 24 have held that acquittal in a criminal case is no ground for interfering with the punishment imposed by disciplinary authority. Their Lordships have held as under: “37. Acquittal in a criminal case by itself cannot be a ground for interfering with an order of punishment imposed by the disciplinary authority. The High Court did not say that the said fact had not been taken into consideration. The revisional authority did so. It is now a well settled principle of law that the order of dismissal can be passed even if the delinquent official had been acquitted of the criminal charge.” 13 Consequently, we hold that it was open to the management to draw up and to continue with the disciplinary proceedings even after the acquittal of the petitioner by the Judicial Magistrate on 22.6.1996. Mr. R.D. Kaundal lastly contended that the penalty imposed upon his client is disproportionate to the alleged misconduct. We are of the considered view after taking into consideration the entire records and the submission made by Mr. R.D. Kaundal that it is not a case where penalty of removal imposed upon the petitioner can be held to be disproportionate or excessive. Their Lordships of the Hon’ble Supreme Court in State of Meghalaya and others versus Mecken Singh N.Marak, (2008) 7 SCC 580 have held that judicial review to look into the penalty/punishment is very limited and restricted to exceptional cases and the punishment unless shockingly disproportionate is not to judicial interference. Their Lordships have held as under: “15. While considering the question of proportionality of sentence imposed on a delinquent at the conclusion of departmental inquiry, the court should also take into consideration, the mental set up of the delinquent, the type of duty to be performed by him and similar relevant circumstances which go into the decision making process. If the charged employee holds the position of trust where honesty and integrity are in- built requirements of functioning, it would not be proper to deal with the matter leniently. Misconduct, in such cases has to be dealt with iron hands. 17.Even in cases where the punishment imposed by the disciplinary authority is found to be 14 shocking to the conscience of the court, normally the disciplinary authority or the Appellate Authority should be directed to reconsider the question of imposition of penalty. The High Court in this case, has not only interfered with the punishment imposed by the disciplinary authority in a routine manner but overstepped its jurisdiction by directing the Appellate Authority to impose any other punishment short of removal. By fettering the discretion of the Appellate Authority to impose appropriate punishment for serious misconducts committed by the respondent, the High Court totally misdirected itself while exercising jurisdiction under Article 226. Judged in this background, the conclusion of the Division Bench of the High Court cannot be regarded as proper at all. The High Court has interfered with the punishment imposed by the competent authority in a casual manner and, therefore, the appeal will have to be accepted.” Accordingly, in view of the definitive law laid down by their Lordships of the Hon’ble Supreme Court and in view of the observations made hereinabove, there is no force in the writ petition and the same is dismissed. No costs. (R.B. Misra), Acting Chief Justice (Rajiv Sharma), Judge 18.12. 2009. *awasthi*