CIVIL WRIT PETITION NO.10114 OF 2010 :{ 1 }: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH DATE OF DECISION: DECEMBER 08 ,2010 Rajinder Singh .....Petitioner VERSUS State of Haryana and others ....Respondents CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH 1. Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? PRESENT: Mr. D. R. Bansal, Advocate for Mr. J. P. Dhull, Advocate, for the petitioner. Mr. Sunil Nehra, Sr.DAG, Haryana, for the State. **** RANJIT SINGH, J. A fairly settled issue about the jurisdiction of an employer to take departmental action irrespective of the outcome of criminal trial regarding the same charges is again agitated in the present writ petition. The petitioner, who was working as Driver in Haryana Roadways, caused an accident of a Bus driven by him near Pehowa drain on 12.8.1998. The bus had struck against the angle of foot path CIVIL WRIT PETITION NO.10114 OF 2010 :{ 2 }: and had fell down in a ditch of the road after loosing balance. As per the Driver, this happened when he made an attempt to negotiate a Maxi, which had, in fact, turned towards the side of the bus in order to save the cyclist. After the accident, the petitioner was suspended on 31.8.1998. He was also served a charge sheet for taking action under Rule 7 of the Haryana Civil Services (Punishment and Appeal) Rules, 1987, for being negligent while performing his duties. Enquiry Officer was detailed to conduct enquiry, when the petitioner pleaded not guilty to the charge against him. The petitioner was held guilty after enquiry. General Manager, after agreeing with the enquiry report, issued show cause notice to the petitioner on 21.1.2000, proposing punishment of termination from service. The petitioner submitted reply to the show cause notice. Finding this to be unsatisfactory, General Manager ordered stoppage of three annual increments of the petitioner with permanent effect. Besides, the allowances for the suspension period were limited to what was already paid to him. Since the FIR had also been lodged against the petitioner, he was tried for offences under Sections 268, 338, 337 and 304A IPC. On 7.12.2005, the petitioner, however, was acquitted of the charge of driving the bus in a rash or negligent manner. Upon his acquittal, the petitioner filed a statutory appeal against the order of his punishment of stoppage of three annual increments imposed on him on 15.2.2000. The Appellate Authority, however, rejected the appeal and so also the submission that punishment could not stand in view of acquittal of the petitioner of criminal charge. The petitioner, CIVIL WRIT PETITION NO.10114 OF 2010 :{ 3 }: thereafter, approached various authorities and when they failed to see reasons, he has filed this writ petition to challenge the punishment. The respondents would seriously contest the pleas raised by the petitioner. The facts of the case are highlighted to point out that the bus was driven by the petitioner at high speed and had so fallen in the drain on account of loosing balance. Seventeen to eighteen passengers travelling in the bus received injuries whereas one died on the spot. For this misconduct, the petitioner was charge sheeted and punished after holding due enquiry, affording proper opportunity to him. The respondents accordingly submit that subsequent acquittal of the petitioner would be immaterial and so would justify their action in dismissing the appeal, which was filed after six years after the order of punishment. It is also stated that the petitioner was asked to explain the delay in filing the appeal, which he could not do in any manner and accordingly the appeal was rejected being devoid of merit. The sole ground advanced by the petitioner to challenge the punishment, thus, is his acquittal of a criminal charge. The counsel for the petitioner contends that once the petitioner has been acquitted of a criminal charge of the same allegations, where he was charged for rash or negligent driving, the punishment imposed on him can not be sustained. The State counsel, however, submits that the acquittal of the petitioner in criminal charge can not ipso-facto has effect on the punishment imposed on him after serving him a proper charge and CIVIL WRIT PETITION NO.10114 OF 2010 :{ 4 }: which is awarded after holding due enquiry. The issue whether acquittal on a criminal charge would have effect on the punishment imposed by a department, as already noticed, is by now fairly settled. Standard of proof in a criminal case to convict a person is entirely different than the requirement to establish a misconduct in a departmental proceedings. In a criminal proceedings it is the bounden responsibility and duty of the prosecution to prove the offence beyond any reasonable doubt. That stringent standard of proof is not the need in a departmental proceedings. Reference in this regard can be made to the observations recorded in the case of Ajit Kumar Nag Vs. G.M. (P.J.) Indian Oil Corporation Ltd. Haldia & Ors., AIR 2005 SC 4217. The Hon'ble Supreme Court in this case observed that acquittal by a criminal Court does not preclude an employer from taking an action if it is otherwise permissible. The Court has observed that law in this regard is fairly well settled and acquittal by a criminal Court would not debar an employer from exercising power in accordance with the rules and regulations in force. Talking about different standard of proof in criminal and departmental proceedings to establish the charges, the Court has observed as under:- “....The two proceedings-criminal and departmental-are entirely different. They operate in different fields and have different objectives. Whereas the object of criminal trial is to inflict appropriate punishment on offender, the purpose of enquiry proceedings is to deal with the delinquent departmentally and to impose penalty in accordance with CIVIL WRIT PETITION NO.10114 OF 2010 :{ 5 }: service Rules. In a criminal trial, incriminating statement made by the accused in certain circumstances or before certain officers is totally inadmissible in evidence. Such strict rules of evidence and procedure would not apply to departmental proceedings. The degree of proof which is necessary to order a conviction is different from the degree of proof necessary to record the commission of delinquency. The rule relating to appreciation of evidence in the two proceedings is also not similar. In criminal law, burden of proof is on the prosecution and unless the prosecution is able to prove the guilt of the accused `beyond reasonable doubt', he cannot be convicted by a court of law. In departmental enquiry, on the other hand, penalty can be imposed on the delinquent officer on a finding recorded on the basis of `preponderance of probability'. Acquittal of the appellant by a Judicial Magistrate, therefore, does not ipso facto absolve him from the liability under the disciplinary jurisdiction of the Corporation. We are, therefore, unable to uphold the contention of the appellant that since he was acquitted by a criminal court, the impugned order dismissing him from service deserves to be quashed and set-aside.” Similar view would emerge from NOIDA Enterpreneurs Assn. Vs. NOIDA & Ors., AIR 2007 SC 1161, where it is observed that it is not necessary to terminate the departmental proceedings on withdrawal of criminal charges. As observed in this case, the object CIVIL WRIT PETITION NO.10114 OF 2010 :{ 6 }: and purpose of departmental enquiry and prosecution is different. It is noticed that crime is an act of violation of law or omission of public duty whereas departmental enquiry is to maintain discipline and efficiency of public servant. In this case, the Court also explained in detail the difference in the departmental enquiry and prosecution and the different purposes of the respective proceedings. The Court held as under:- “The purpose of departmental enquiry and of prosecution is two different and distinct aspects. The criminal prosecution is launched for an offence for violation of a duty the offender owes to the society, or for breach of which law has provided that the offender shall make satisfaction to the public. So crime is an act of commission in violation of law or of omission of public duty. The departmental enquiry is to maintain discipline in the service and efficiency of public service. It would, therefore, be expedient that the disciplinary proceedings are conducted and completed as expeditiously as possible. It is not, therefore, desirable to lay down any guidelines as inflexible rules in which the departmental proceedings may or may not be stayed pending trial in criminal case against the delinquent officer. Each case requires to be considered in the backdrop of its own facts and circumstances. There would be no bar to proceed simultaneously with departmental enquiry and trial of a criminal case unless the charge in the criminal trial is of CIVIL WRIT PETITION NO.10114 OF 2010 :{ 7 }: grave nature involving complicated questions of fact and law. Offence generally implies infringement of public duty, as distinguished from mere private rights punishable under criminal law. When trial for criminal offence is conducted it should be in accordance with proof of the offence as per the evidence defined under the provisions of the Indian Evidence Act 1872 (in short the `Evidence Act'). Converse is the case of departmental enquiry. The enquiry in a departmental proceedings relates to conduct or breach of duty of the delinquent officer to punish him for his misconduct defined under the relevant statutory rules or law. That the strict standard of proof or applicability of the Evidence Act stands excluded is a settled legal position. Under these circumstances, what is required to be seen is whether the department enquiry would seriously prejudice the delinquent in his defence at the trial in a criminal case. It is always a question of fact to be considered in each depending on its own facts and circumstances.” This issue was earlier considered by this Court in Civil Writ Petition No.10544 of 2010 (Ram Phal Vs. State of Haryana and others), whereafter making reference to number of judgements i.e. Depot Manager, Andhra Pradesh State Road Transport Corporation Vs. Mohd. Yousuf Miyan, 1997 (2) SCC 699, State of Rajasthan Vs. B.K.Meena and others, 1996(6) SCC 417, South Bengal State Transport Corpn. Vs. Swapan Kumar Mitra and CIVIL WRIT PETITION NO.10114 OF 2010 :{ 8 }: others, JT 2006 (2) SC 307, this position is noted in detail. This was again the precise ground argued before the Supreme Court in Nelson Motis Vs. Union of India and others, 1992(4) SCC 711 and Mohd.Janimiya Vs. A.P.State Road Transport Corporation, Secunderabad, 2006(5) S.L.R. 520. In State of M.P. and another Vs. Shiv Narayan Singh Rajoriya and another, 2007 (2) SLR 370, the Court declined the prayer to set- aside the termination merely because the criminal Court acquitted the employee for forgery by giving him benefit of doubt. It is observed that in a criminal case the charge has to be proved by standard of proof beyond reasonable doubt while in departmental proceedings the standard of proof for proving the charge is preponderance of probabilities and, thus, acquittal alone would not be a ground to set- aside termination. In Senior Superintendent of Post Offices, Pathamthitta and others Vs. A.Gopalan, JT 1997 SC 239, it is held that nature and scope of proof in criminal case is very different from that of departmental disciplinary proceedings and order of acquittal in the former can not conclude the departmental proceedings. As is held, the charges in a criminal case have to be proved beyond reasonable doubt while in departmental proceedings, the standard of proof for proving the charge is mere preponderance of probabilities. The approach and the objective in the criminal proceedings and disciplinary proceedings are altogether distinct and different. The question requiring determination in disciplinary proceedings is to see if a person is guilty of such conduct as would CIVIL WRIT PETITION NO.10114 OF 2010 :{ 9 }: merit his removal from service or a lesser punishment, as the case may be, whereas in criminal proceedings, the question is if the offences registered against accused under Indian Penal Code are established and, if established, what sentence should be imposed upon him. The standard of proof, the mode of enquiry and the rules governing the enquiry and the trial in both cases are entirely distinct and different. It is, thus, not possible to accept the contention raised by counsel for the petitioner in view of the settled position of law as noted above. Mere acquittal of the petitioner from a criminal liability can not automatically lead to setting-aside of the punishment imposed departmentally after following due process of law and rules of natural justice. There is, thus, no merit in the writ petition and the same is accordingly dismissed. December 08,2010 (RANJIT SINGH ) khurmi JUDGE