IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP(T) No. 14488 of 2008 Decided on : 20.09.2011 ________________________________________________ Bhuvneshwar Kumar Sharma …. Petitioner Versus The Managing Director, Himachal Pradesh Tourism Development Corporation Limited. … Respondent. ___________________________________________________ Coram The Hon’ble Mr. Justice V.K. Sharma, Judge. Whether approved for reporting? 1 Yes. For the petitioner : Mr. P.P. Chauhan, Advocate. For the respondent : Mr. Naresh Kaul, Advocate. _____________________________________________________ V.K. Sharma, Judge (oral). Departmental proceedings were initiated against the petitioner, who at the relevant time was working as Jr. Asstt. (Acctts.) with the respondent-Corporation, on the following set of charges vide memorandum dated 17.11.2001, Annexure-A:- “STATEMENT OF ARTICLES OF CHARGES FRAMED AGAISNT SH. BHUVNESHWAR KUMAR JR. ASSTT. (ACCTTS.) HOTEL CHAMPAK, CHAMBA ARTICLE-I 1 Whether reporters of the local papers may be allowed to see the judgment? Yes. 2 That the said Sh. Bhuvneshwar Kumar Sharma while working as Jr. Asstt. (Acctts.) in Hotel Champak, Chamba was caught red- handed on 27.10.2001 by the Chamba Police in Room No. 104 & 106 of the said hotel alongwith two girls and other two outsider indulged in immoral activities and was arrested by the Chamba Police on 27.10.2001. This episode was published in AMAR UJALA, Dainik Jagaran and Hindustan Times on 29.10.2001, thereby brought bad name to the corporation and adversely effected its business. Such like action on the part of the said Sh. Bhuvneshwar Kumar is absolute misconduct and unbecoming of a corporation employee. Thus the said Sh. Bhuvneshwar Kumar has violated the provisions of HPTDC Ltd. (Staff) Regulation, 1972/CCS(CCA) Rules, 1965. STATEMENT OF IMPUTATION OF MISCONDUCT OR MISBEHAVIOUR IN SUPPORT OF ARTICLES OF CHARGES FRAMED AGAISNT SH. BHUVNESHWAR KUMAR JR. ASSTT. (ACCTTS.) HOTEL CHAMPAK, CHAMBA ARTICLE-II That the said Sh. Bhuvneshwar Kumar Sharma while working as Jr. Asstt. (Acctts.) in Hotel Champak, Chamba was caught red- handed on 27.10.2001 in Room No. 104 & 106 of the said hotel alongwith two girls named Sonia and Meghna of Dharog (Chamba) and 3 two other outsider named Sh. Anuj Kumar and Sh. Anupam of Sultan Mohalla, Chamba indulged in immoral activities and was arrested by the Chamba Police on 27.10.2001. This episode was published in AMAR UJALA, Dainik Jagaran and Hindustan Times on 29.10.2001, thereby brought bad name to the Corporation. The above also shows that the said Sh. Bhuvneshwar Kumar is used to indulging in such type of immoral activities. The said official do not take interest in performing his duties and is in the habit of doing dissolute acts. The previous record of the said official also speaks that during his posting at Shimla, he was indulged in such type of activities. The said official not only brought bad name to the Corporation but also adversely effected its business. Such like action on the part of Sh. Bhuvneshwar Kumar is absolute misconduct and unbecoming of a corporation employee. Thus the said Sh. Bhuvneshwar Kumar was failed to serve the Corporation honestly, faithfully and diligently and has therefore, violated the provisions of HPTDC Ltd. (Staff) Regulation, 1972/CCS(CCA) Rules, 1965.” 2. The petitioner has not brought on record copy of the reply to the charge-sheet submitted by him. 4 3. The inquiry proceedings culminated into submission of inquiry report copy of which was supplied to the petitioner vide memorandum dated 17.3.2003, Annexure-B. The charges were held to be partly proved vide operative part of the enquiry report containing the conclusions, which are as under:- “CONCLUSION After going the contents of prosecution witness cited in the chargesheet framed against Sh. Bhuvneshwar Kumar, charged official and also from the perusal of contents of written resume submitted by Sh. Ramesh Chand, Sr. Asstt. (Presenting Officer) the Defence Counsel as well and other material available on record I have come to the following conclusion:- That after taking the cognizance of contents of three prosecution witnesses written resume from Presenting Officer and other material available on record, it has been proved beyond doubt that the charged official, Sh. Bhuvneshwar Kumar had brought 4 persons (2 girls & 2 boys) to Hotel Champak on 27.10.2001 and put them in room No. 104 & 106 i.e. one girl and one boy and two boys and one girl including himself in each room which is an ample proof of misconduct 5 on the part of the charged official as the girl detected by the police party Meghna and Sonia were from other community and were not in relation of the charged official. However, the charge of establishing the illicit relations with girl could not be proved in lack of evidence as there is no evidence to substantiate this charge but the charge of denigrating the image of corporation and hurting the interest of the organization by and large has also proved beyond doubt as the leading News papers such like Amar Ujala, Dainik Jagran and Hindustan times had covered this episode into their publications which sent wrong signals to the masses. Thus, the charged official Sh. Bhuvneshwar Kumar has violated the provision of Staff Regulation, 1972 and C.C.S (CCA) Rules 1965. The relevant documents related to this case are enclosed for the kind perusal of worthy Managing Director, HPTDC, Ritz. Annexe, Shimla-1.” 4. The disciplinary authority after consideration of the entire matter imposed the penalty of ‘termination of service’ upon the petitioner vide order dated 19.5.2005. The petitioner filed statutory appeal dated 7.6.2005, Annexure-D to the Board of Directors of the respondent- 6 Corporation, which was rejected vide office order dated 5.12.2005, Annexure-E. 5. Here, it shall be pertinent to notice that for the misconduct alleged against the petitioner in the departmental proceedings, he along with the persons said to be involved in the alleged occurrence, was tried by the learned Chief Judicial Magistrate, Chamba, H.P., for the offence under Section 5 of the Immoral Traffic (Prevention) Act, 1956 and all of them were ultimately acquitted vide judgment dated 17.5.2004, Annexure-F. 6. I have heard the learned counsel for the parties and gone through the records. 7. The main thrust of the contentions raised on behalf of the petitioner is that since the departmental proceedings and the criminal case against the petitioner were based on same set of witnesses and further since he was acquitted by the criminal court, the findings of guilt returned against him in the departmental inquiry cannot be sustained. It is further submitted that the charges against the petitioner were also held to have been proved in the inquiry proceedings only partially. Still further it is stated that the disciplinary authority had based its findings mainly on the basis that the alleged occurrence was extensively reported in the media 7 which brought bad name to the institution. Lastly, it was contended that the statutory appeal filed by the petitioner has been rejected by the Board of Directors by a non speaking order. The petitioner has placed reliance upon two judgments of the Hon’ble Apex Court reported as Punjab National Bank and Others vs. Kunj Behari Misra and the connected matter, (1998) 7 Supreme Court Cases 84 and G.M. Tank vs. State of Gujarat and Others, (2006) Supreme Court Cases 446. 8. Conversely, it is submitted on behalf of the respondent by placing reliance upon a Division Bench judgment of this court in LPA No. 163 of 2009, K.P. Singh vs. High Court of H.P. & ors., 2011 (2) Him L.R. (DB) 921 that the charge of misconduct against the petitioner based on moral turpitude stood established against him during inquiry and he has been rightly visited with the penalty of ‘termination of service’. 9. In so for as the case of Punjab National Bank and Others vs. Kunj Behari Misra and the connected matter, supra is concerned, suffice it to say that in the case before the Hon’ble Supreme Court the delinquent was exonerated by the Inquiry Officer, but the disciplinary authority while differing with such findings did not afford an opportunity of being heard 8 to the delinquent. However, the facts of the case in hand are clearly distinguishable, as in the present case the disciplinary authority has not differed with the findings of the Inquiry Officer. 10. It is by now fairly settled that disciplinary proceedings and criminal trial lie within entirely different domains. No doubt, the petitioner and his co-accused were acquitted by the criminal court. However, the fact remains that the inquiry proceedings had already been concluded vide inquiry report submitted by the Inquiry Officer on 20.2.2003. The star witness for the department in the departmental proceedings was one Mr. Jaram Singh, Chowkidar, Hotel Champak, Chamba, where the alleged occurrence had taken place who had supported the case of the department during the inquiry. The judgment of the criminal court dated 17.5.2004, Annexure-F, followed the submission of inquiry report dated 20.2.2003. A perusal of the judgment of the criminal court would go to show that said Jaram Singh had turned hostile to the case of prosecution during trial. 11. Indisputably, the standard of proof in departmental inquiry and criminal trial is of varying nature. Whereas in the former it is preponderance of 9 probabilities, in the latter it has to be beyond reasonable doubt. We are concerned in the present case with departmental proceedings. Though both the criminal trial and departmental proceedings were based mainly on the same set of evidence, yet since during the inquiry proceedings the sole eye-witness namely Shri Jaram Singh had supported the department, the fact that in criminal trial he had turned hostile, would be of no consequence as far as the matter relating to departmental proceedings is concerned. 12. The contention raised on behalf of the petitioner that none from the concerned newspapers, wherein news reports regarding the incident were published, was examined during the inquiry, is also of no consequence. It is not the case of the petitioner that either Reporters/Correspondents of those newspapers were eye witnesses to the occurrence or it was on the basis of newspaper reports that the findings of guilt were returned against him or he was punished on the basis thereof. 13. Charge to the extent not proved during inquiry was taken due note by the disciplinary authority in its order dated 19.5.2005, Annexure-C. It being so, the penalty imposed upon the petitioner is not vitiated on this count as well. 10 14. True it is that the appeal filed by the petitioner, Annexure-D, dated 7.6.2005, was a detailed appeal raising various contentions supported by case law. However, a bare perusal of office order dated 5.12.2005, Annexure-E, whereby the appeal was dismissed would go to show that the Board of Directors had considered the appeal carefully and while doing so it had looked into the inquiry report and the evidence, oral and documentary. Thus, the appellate order can also not be said to be either non spearing or vitiated on any other count, legal or factual. 15. In view of the above and taking into consideration the nature of misconduct established against the petitioner during the departmental inquiry which amounts to moral turpitude, I see no merit in the present petition, which is accordingly dismissed. (V.K. Sharma) Judge. September 20, 2011. (Lsp)