C.W.P. No.2470 of 1989 -1- IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P. No.2470 of 1989 Date of Decision: 14.05.2010 Sh. Gurmukh Singh Tiwana S/o S. Pakhar Singh Tiwana Ex- Superintendent (Warehouse Manager) Central Warehouse, Mullanpur Distt. Ludhiana at present resident of village Sohigarh, Link Road, Mullanpur District Ludhiana ........Petitioner Versus The Central Warehouse Corporation, Head Office New Delhi through Managing Director and another ....Respondents Present: Mr. P.S. Goraya, Advocate for the petitioner. Mr. Rajesh Garg, Advocate and Mr. Hitesh Pandit, Advocate for the respondents. CORAM:HON'BLE MR. JUSTICE K. KANNAN 1. Whether Reporters of local papers may be allowed to see the judgment ? Yes 2. To be referred to the Reporters or not ? Yes 3. Whether the judgment should be reported in the Digest? Yes -.- K. KANNAN J.(ORAL) 1. The writ petition challenges the order of dismissal from service of the petitioner, who was a Superintendent (Warehouse Manager). The charges imputed against him were pilferage of fertilizer stocks, misappropriation of stocks, violation of standing instructions regarding maintenance of record and non-depositing of duplicate keys with the Bank with ulterior motive. The enquiry was constituted by the proceedings of the Managing Director through a memorandum issued on 02.07.1985 and after the Enquiry Officer found him guilty of the charges levelled against him after a C.W.P. No.2470 of 1989 -2- fullfledged enquiry, the Disciplinary Authority accepted the report given by the Enquiry Officer and finding himself in entire agreement with the report, an order of dismissal was made on 19.01.1988 by the General Manager. An appeal filed against the decision was dismissed and the writ petition impugns these proceedings. 2. The learned counsel urged at the foremost of his arguments that the Appointing Authority of the petitioner was the Managing Director and the order of removal impugned in the writ petition had been issued by a person lower in rank namely General Manager. In effect, the petitioner was importing the principle which under Article 311 states that a person who will be competent to remove a person from service shall not be below the rank of a person who is the Appointing Authority. This Article would apply only to Civil Services and for persons, who are employed to statutory corporations which are governed by specific regulations, we will have to look for only the regulations for finding who is competent to remove the person from service. The staff regulations issued under the Warehouse Corporation Act of 1962 states in Clause 5 in Chapter 2 that appointments to posts in Group A and Group B shall be made by the Managing Director. However, the Disciplinary Authority under clause 17 in Chapter 5, who has a power to impose a major penalty including dismissal or removal from service shall be the General Manager for employees holding Group B posts, while the Managing Director shall be the competent officer to remove an employee holding Group A posts. From the order of termination, which is issued, it is seen that a Warehouse Manager or Superintendent held a C.W.P. No.2470 of 1989 -3- Group B posts and therefore, the Disciplinary Authority for a person like the petitioner was only the General Manager and the impugned order passed at his instance does not, therefore, suffer from the vice which is attributed to the same. I, therefore, reject the contention raised about the competence of 1st respondent to issue the order. 3. Adverting to the merits of the case, learned counsel argued forcefully that the petitioner had been prosecuted in a criminal case and the criminal case had resulted in acquittal. Neither the Enquiry Officer nor the Disciplinary Authority made any reference to the judgment in the criminal case. The learned counsel would submit that the criminal case recorded a honourable acquittal and the non- reference of the same in departmental proceedings initiated as regards the very same incident vitiated the order. The learned counsel also refers to the judgment of the Hon'ble Supreme Court in State of Punjab and others Vs. Prem Sarup 2009(1) RSJ 183 that dealt with the case under Punjab Police Rules. In that case all the witnesses, who had turned hostile in a criminal case were not examined before the Enquiry Officer in the departmental proceedings. The charges could not be proved and the Court at the first instance as well as the High Court held that the charges had not been established. There the Court said that there was no scope for interference. In a case where there was no evidence adduced before the Enquiry Officer for the reason that all the witnesses who were examined before the Criminal Court had turned hostile, the management did not take courage to put them as witnesses in the departmental proceedings which resulted in a situation where there C.W.P. No.2470 of 1989 -4- was no evidence before the Enquiry Officer to record the finding of guilt. The Enquiry Officer still held the charges proved which the Court of first instance did not accept. The High Court did not intervene and the Hon'ble Supreme Court took under the circumstances a hands off approach. In this case, the witnesses had been examined before the Enquiry Officer and even in the memorandum of appeal which the petitioner has preferred against the decision of the Disciplinary Authority, he refers to the fact of the enquiry before the Enquiry Officer as well as the alleged false evidence given by the witnesses against him. The facts elicited according to the Enquiry Officer proved guilt and there were materials on the basis of which the charges were held proved. I, therefore, do not find any merit in the argument that since the criminal case resulted in acquittal, the departmental proceedings also should have found him not guilty of the charges. 4. It is too well known a principle of service jurisprudence that criminal case proceedings and departmental enquiry operate in diverse fileds. While the former requires proof of guilt beyond reasonable doubt, the latter requires proof by preponderance of probabilities. It is not unusual that there are dissimilar conclusions arrived between a criminal court proceeding and a departmental proceeding. The only occasion where a Criminal Court judgment would be relevant would be when a conviction by a Criminal Court itself is taken to be a lynchpin on which a punishment is accorded by a Disciplinary Authority. There a reversal of a Criminal Court judgment may require a reversal of the decision by the Disciplinary C.W.P. No.2470 of 1989 -5- Authority as well. The decision relating to the departmental enquiry and the Criminal Court have been illustrated through its first principles in the decision of the Hon'ble Supreme Court in Capt. M. Paul Anthony Vs. Bharat Gold Mines Ltd. AIR 1999 SC 1416, which has been affirmed in several other cases. The principles enunciated in the judgment are:- "(i) Departmental proceedings and proceedings in a criminal case can proceed simultaneously as there is no bar in their being conducted simultaneously, though separately. (ii) If the departmental proceedings and the criminal case are based on identical and similar set of facts and the charge in the criminal case against the delinquent employee is of a grave nature which involves complicated questions of law and fact, it would be desirable to stay the departmental proceedings till the conclusion of the criminal case. (iii) Whether the nature of a charge in a criminal case is grave and whether complicated questions of fact and law are involved in that case, will depend upon the nature of offence, the nature of the case launched against the employee on the basis of evidence and material collected against him during investigation or as reflected in the charge sheet. (iv) The factors mentioned at (ii) and (iii) above cannot be considered in isolation to stay the departmental proceedings but due regard has to be given to the fact that the departmental proceedings cannot be unduly delayed. (v) If the criminal case does not proceed or its disposal is being unduly delayed, the departmental proceedings, even if they were stayed on account of the pendency of the criminal case, can be resumed and proceeded with so as to conclude them at an early date, so that if the employee is found not guilty his honour may be vindicated and in case he is found guilty, administration may get rid of him at the earliest." I, therefore, reject the contention that the acquittal in a criminal case ought to have had a bearing on the finding of the Enquiry C.W.P. No.2470 of 1989 -6- Officer. 5. Learned counsel also urged strongly on the issue that the Enquiry Officer's report has not been furnished to him and therefore, the order of the Disciplinary Authority removing him from service was vitiated and illegal. This issue has been squarely addressed in a decision of the Hon'ble Supreme Court before a Constitution Bench in Managing Director, ECIL, Hyderabad etc. Vs. B. Karunakar etc. AIR 1994 SC 1074 where the Hon'ble Supreme Court has held that it is not doubt essential that Enquiry Officer's report shall be given to a delinquent before a decision is taken on the punishment. However, this decision had been referred before the Constitution Bench only to resolve a controversy whether the non-supply of Enquiry Officer's report will always vitiate the proceedings. The ratio of law laid down through the decision is that a delinquent has still to prove the prejudice by the non-supply of the Enquiry Officer's report and it was not merely to be taken that an enquiry could be vitiated in all cases where the Enquiry Officer's report is not supplied. This decision in Karunakar's case (supra) was explained at length by a recent judgment of Hon'ble Supreme Court in Haryana Financial Corporation Vs.Kailash Chandra Ahuja (2008) 9 SCC 31. The law as it now stands is that a person who complains that the Enquiry Officer's report was not supplied to him must not merely allege the same but must also bring out the prejudice that was caused to him. Learned counsel appearing for the respondents points out that even in the show cause notice and the grounds of appeal, which the petitioner had submitted to the Appellate Authority, elaborate C.W.P. No.2470 of 1989 -7- references had been made to the Enquiry Officer's report. The petitioner has referred not to merely the charges which the Enquiry Officer had observed as proved before him, but it makes references to the record of the Enquiry Officer and how he has relied upon witnesses known to be hostile to the complainant and only the documents in evidence given by the prosecution side had been taken and material evidence placed by him in defence had not been considered. The petitioner has also averred on the facts as to how the Enquiry Officer acted on the complaint made and how the evidence of each one of the witnesses had been relied on by him. It is not even averred in the grounds of appeal that there was any form of prejudice by the fact that the Enquiry Officer's report was not served to him. On the other hand, the grounds themselves are proof of the fact that the petitioner had obtained will-nilly the details of the Enquiry Officer report and he had full knowledge of the same. To plead prejudice in this situation simply does not arise. 6. The learned counsel points out that the supply of the Enquiry Officer's report is made mandatory in the regulations in Clause 18(11). I have already examined the situation relating to the furnishing of Enquiry Officer's report by reference to the decision of the Hon'ble Supreme Court and therefore, if there was a non-supply of such information, it is only an irregular practice that does not impinge on the validity of the enquiry itself. The counsel also argues that the regulations also require that when the Disciplinary Authority is not the Enquiry Officer himself, the Disciplinary Authority is bound to spell out under each charge his findings. Where the decision of C.W.P. No.2470 of 1989 -8- the Enquiry Officer deals with every situation and the Disciplinary Authority affirms the findings of the Enquiry Officer, I do not think it is necessary for the Disciplinary Authority to rebut what the Enquiry Officer has said word by word to express his affirmation. The objection is more a matter of form than a matter of content. 7. This case has stood on for this number of years for the petitioner to argue on issues which were probably not found attractive enough by him at a time when he had submitted before this Court in the year 1989 and that the only point that was necessary for his argument at the time of admission was that the Disciplinary Authority who passed an order of removal was lower in rank to the Appointing Authority. Now when it was shown to him that the regulations themselves make possible the Disciplinary Authority to be a person lower in rank to the Appointing Authority, the learned counsel has argued with remarkable exuberance on every aspect of the merits of the enquiry but I find that none of them obtains any serious consideration for the reasons which I have enumerated above. 8. The writ petition is dismissed. (K. KANNAN) JUDGE May 14, 2010 Pankaj*