IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP (T) No. 7441/2008. Reserved on: 7.5.2010. Decided on: 15.6. 2010 _____________________________________________ Parshotam Singh. …Petitioner. Versus Himachal Road Transport Corporation. …Respondent. ________________________________________________________ Coram: Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 Yes. For the petitioner : Mr. Dilip Sharma, Advocate vice Mr. Vivek Vashisth, Advocate. For the respondent : Mr. Adarsh Sharma, Advocate. _____________________________________________________ Rajiv Sharma, Judge. Material facts necessary for the adjudication of this petition are that petitioner was working as Store Helper in Depot, Jassur of respondent-corporation. The bus of Himachal Road Transport Corporation met with an accident on 4.7.1991. Passengers of the bus, namely, Amar Singh, Ajit Singh, Anup Singh and Surjit Singh filed their claim petitions before the learned Motor Accident Claims Tribunal, Kangra at Dharamshala. The learned Motor Accident Claims Tribunal 1 Whether reporters of the local papers may be allowed to see the judgment? Yes 2 awarded a sum of Rs. 1,38,000/- to Amar Singh, Rs. 25,566/- to Ajit Singh, Rs. 70,400/- to Anup Singh and Rs. 38,000/- to Sh. Surjit Singh vide award dated 15.3.1993. Though the accident has taken place on 4.7.1991, respondent-corporation issued memo to the petitioner on 27.1.1994 under rule 14 of the Central Civil Services (CCA) Rules, 1965. Charge No.1 reads thus: “That the said Sh. Parshotam Singh, Store Helper while on the rolls of H.R.T.C. Workshop, Jassur on 4.7.1991 was on leave and during the leave period the said Sh. Parshotam Singh, Store Helper was travelling in the bus No. HIK-3153 catering on the route from Dhiala to Jassur. The said Sh. Chanda Singh, Driver parked the said bus No. HIK- 3153 at Ganoh and handed over the key of the bus to the bus conductor Sh. Parshotam Singh and went away to attend the Court at Jawali. In the absence of driver the said Sh. Parshotam Singh, Store Helper drive the bus No. HIK-3153 and caused the accident by driving the vehicle. The accident was inspected by Sh. Nathu Ram, Inspector and Nehar Singh, Inspector at the spot. In this accident one lady was died and certain passengers sustained serious injuries as a result of this S/Sh. Amar Singh, Ajit Singh, Anoop Singh and Surjit Singh, resident of Nurpur filed a claim petition with MACT, 3 Dharamshala. Consequently, the Hon’ble Court has awarded the following amounts:- 1. Sh. Amar Singh V/S HRTC & others Rs. 1,38,000/- 2. Sh. Ajit Singh V/S. HRTC Rs. 25,550/- 3. Sh. Anoop Singh V/S HRTC Rs. 70,400/- 4. Sh. Surjit Singh V/S HRTC Rs. 38,000/- Though the above amount of award has already been deposited with the MACT, Dharamshala by the H.R.T.C. Sh. Chander Singh/Sh. Parshotam Singh, Store Helper were also the respondents in the above claim cases. The said Sh. Parshotam Singh, Store Helper drove the vehicle unauthorisedly on 4.7.1991 caused accident to vehicle No. HIK- 3153, both driver and Sh. Parshotam Singh, Store Helper are responsible of the loss caused to the Corporation amounting to Rs. 2,71,950/- proportionately in equal share under the CCS Rules, 1965 who drove the vehicle unauthorisedly and handed over the key of the vehicle unauthorisedly and loss caused to the Corporation amounting to Rs. 2,71,950/- in two equal share is leveled against Sh. Parshotam Singh, Store Helper, H.R.T.C. Jassur.” 2. The Inquiry Officer was appointed by the Disciplinary Authority, who submitted the report on 16.2.1996. The Disciplinary Authority accepted the inquiry report and ultimately the petitioner was removed from service vide office order dated 27.2.1997. Petitioner has assailed office order 4 dated 27.2.1997. FIR bearing No. 231/1991 of Police Station, Nurpur was also registered against the petitioner on 4.7.1991. He was acquitted by the Judicial Magistrate 1st Class alongwith Chanda Singh for offences punishable under sections 279, 337, 338 and 304-A of the Indian Penal Code on 20.8.1997. State came in appeal bearing Criminal Appeal No. 479/1997 against the judgment of the Judicial Magistrate 1st Class, Nurpur dated 20.8.1997. This Court dismissed the appeal on 13.12.2000 by upholding the judgment of the learned Judicial Magistrate 1st Class, Nurpur. 3. The driver of the bus, Sh. Chanda Singh parked the bus at Jassur and handed over the key to the bus conductor, Sh. Parshotam Singh. He went to attend the Court at Jawali. The conductor of the bus handed over the key to the petitioner, who was on leave on 4.7.1991 and drove the bus. The bus met with accident resulting in injuries to number of passengers and one of the passengers died. The claim petitions, as noticed above, was allowed by the Motor Vehicle Accident Claims, Kangra at Dharamshala. He awarded the following amounts: 1. Sh. Amar Singh Rs. 1,38,000/- 2. Sh. Ajit Singh Rs. 25,550/- 3. Sh. Anoop Singh Rs. 70,400/- and 4. Sh. Surjit Singh Rs. 38,000/-. The learned Motor Vehicle Accident Claims returned the findings that the accident was caused due to rash and negligent driving of the petitioner. 5 The decision was taken by the management of the respondent-corporation to initiate disciplinary proceedings only on 27.1.1994. The Inquiry Officer submitted report on 16.2.1996. Thereafter the Disciplinary Authority provisionally came to a conclusion that penalty of removal should be imposed upon the petitioner. He was granted 15 days time to make representation against the proposed penalty vide memorandum dated 28.11.1996. He filed reply to the memorandum dated 28.11.1996 on 23.12.1996. The Disciplinary Authority i.e. General Manager (Technical) vide office order dated 27.2.1997 imposed the penalty of removal upon the petitioner. Petitioner was acquitted by the Judicial Magistrate 1st Class, Nurpur on 20.8.1997. The appeal preferred by the State Government was also dismissed by the learned Single Judge of this Court on 13.12.2000. It is settled law by now that acquittal in a criminal trial by itself is not a ground not to initiate or drop disciplinary proceedings. (See 2006 (4) SCC 265, 2006 (6) SCC 366, 2007 (13) SCC 251 and 2008 (15) SCC 657). 4. Their Lordships of the Hon’ble Supreme Court in G.M. Tank versus State of Gujarat and others, (2006) 5 SCC 446 have held as under: 20. It is thus seen that this is a case of no evidence. There is no iota of evidence against the appellant to hold that the appellant is guilty of 6 having illegally accumulated excess income by way of gratification. The respondent failed to prove the charges leveled against the appellant. It is not in dispute that the appellant being a public servant used to submit his yearly property return relating to his movable and immovable property and the appellant has also submitted his return in the year 1975 showing his entire movable and immovable assets. No query whatsoever was ever raised about the movable and immovable assets of the appellant. In fact, the respondent did not produce any evidence in support of and/or about the alleged charges levelled against the appellant. Likewise, the criminal proceedings were initiated against the appellant for the alleged charges punishable under the provisions of P.C. Act on the same set of facts and evidence. It was submitted that the departmental proceedings and the criminal case are based on identical and similar (verbatim) set of facts and evidence. The appellant has been honourably acquitted by the competent Court on the same set of facts, evidence and witness and, therefore, the dismissal order based on same set of facts and evidence on the departmental side is liable to be set aside in the interest of justice. 22. In the case of Capt. M. Paul Anthony vs. Bharat Gold Mines Ltd. & Anr.(supra), the question before this Court was as to whether the departmental proceedings and the proceedings in a criminal case launched on the basis of the same set of facts can be continued simultaneously. In Paragraph 34, this Court held as under: "34. There is yet another reason for discarding the whole of the case of the respondents. As pointed 7 out earlier, the criminal case as also the departmental proceedings were based on identical set of facts, namely "the raid conducted at the appellant's residence and recovery of incriminating articles therefrom". The findings recorded by the enquiry officer, a copy of which has been placed before us, indicate that the charges framed against the appellant were sought to the proved by police officers and panch witnesses, who had raided the house of the appellant and had effected recovery. They were the only witnesses examined by the enquiry officer and the enquiry officer, relying upon their statements, came to the conclusion that the charges were established against the appellant. The same witnesses were examined in the criminal case but the Court, on a consideration of the entire evidence, came to the conclusion that no search was conducted nor was any recovery made from the residence of the appellant. The whole case of the prosecution was thrown out and the appellant was acquitted. In this situation, therefore, where the appellant is acquitted by a judicial pronouncement with the finding that the "raid and recovery" at the residence of the appellant were not proved, it would be unjust, unfair and rather oppressive to allow the findings recorded at the ex parte departmental proceedings to stand." 23. In R.P. Kapur vs. Union of India (supra), a Constitution Bench of this Court observed: "If the trial of the criminal charge results in conviction, disciplinary proceedings are bound to follow against the public servant so convicted, even in case of acquittal proceedings may follow, 8 where the acquittal is other than honourable." (emphasis supplied) 24. In the case of Corporation of the City of Nagpur, Civil Lines, Nagpur & Anr. Vs. Ramchandra G. Modak & Ors. (supra), the same question arose before this Court. This Court, in paragraph 6, held as under: "6. The other question that remains is if the respondents are acquitted in the criminal case whether or not the departmental inquiry pending against the respondents would have to continue. This is a matter which is to be decided by the department after considering the nature of the findings given by the criminal court. Normally where the accused is acquitted honorably and completely exonerated of the charges it would not be expedient to continue a departmental inquiry on the very same charges or grounds or evidence, but the fact remains, however, that merely because the accused is acquitted, the power of the authority concerned to continue the departmental inquiry is not taken away nor is its direction (discretion) in any way fettered. "(emphasis supplied) 29. The judgments relied on by the learned counsel appearing for the respondents are not distinguishable on facts and on law. In this case, the departmental proceedings and the criminal case are based on identical and similar set of facts and the charge in a Departmental case against the appellant and the charge before the Criminal Court are one and the same. It is true that the nature of charge in the departmental proceedings and in the criminal case is grave. The nature of the case launched against the 9 appellant on the basis of evidence and material collected against him during enquiry and investigation and as reflected in the charge sheet, factors mentioned are one and the same. In other words, charges, evidence, witnesses and circumstances are one and the same. In the present case, criminal and departmental proceedings have already noticed or granted on the same set of facts namely, raid conducted at the appellant's residence, recovery of articles therefrom. The Investigating Officer, Mr. V.B. Raval and other departmental witnesses were the only witnesses examined by the Enquiry Officer who by relying upon their statement came to the conclusion that the charges were established against the appellant. The same witnesses were examined in the criminal case and the criminal court on the examination came to the conclusion that the prosecution has not proved the guilt alleged against the appellant beyond any reasonable doubt and acquitted the appellant by his judicial pronouncement with the finding that the charge has not been proved. It is also to be noticed the judicial pronouncement was made after a regular trial and on hot contest. Under these circumstances, it would be unjust and unfair and rather oppressive to allow the findings recorded in the departmental proceedings to stand. 31. In our opinion, such facts and evidence in the department as well as criminal proceedings were the same without there being any iota of difference, the appellant should succeed. The distinction which is usually proved between the departmental and criminal proceedings on the 10 basis of the approach and burden of proof would not be applicable in the instant case. Though finding recorded in the domestic enquiry was found to be valid by the Courts below, when there was an honourable acquittal of the employee during the pendency of the proceedings challenging the dismissal, the same requires to be taken note of and the decision in Paul Anthony's case (supra) will apply. We, therefore, hold that the appeal filed by the appellant deserves to be allowed.” 5. 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 it is permissible in law to initiate departmental inquiry after acquittal in a criminal case, however, such power is to be exercised bonafidely, fairly and reasonably and when there is evidence to prove the charges. In this case, respondent was estopped to initiate disciplinary proceedings after being acquitted by the criminal court and also cleared by the custom authority. The Apex Court found several irregularities on procedural and substantive aspects of enquiry, viz. : (1) disciplinary proceedings initiated after nine years, (2) respondent denied certain documents and services of defence assistant of his choice, (3) detailed procedure for major penalty proceedings not followed, (4) cross-examining the respondent by the inquiry officer reflecting his bias, (5) denial of permission to examine defence witness, disciplinary authority’s witness itself not supporting the Department and such witness not cross-examined yet the charges against 11 respondent declared as proved. Their Lordships have further held that the inquiry was vitiated. Their Lordships have held as under: “23. Whether incidental or ancillary to the issue which arose in the departmental proceeding, we must place on record that the Department of Customs of the Union of India having examined the entire question, they found the respondent innocent. As trans-border smuggling was the common theme both before the said authority as also in the criminal court, the department concerned was expected to keep a strict vigil thereover. The question of mis-utilisation of jeep etc., was not brought to the notice of the Customs Authorities. Such a question was also not raised in the criminal proceeding. It was necessary to do so so as to prove the charges of conspiracy. The prosecution, thus, utterly failed to prove such a charge. 24. In the departmental proceeding the appellant was bound to comply with the principles of natural justice. Copies of some documents were not supplied. Services of a legal practitioner, may not be a matter of right, but he was atleast entitled to the effective assistance of the departmental representative, Shri Madhukar Sharma. The same was also for all intent and purport denied. The Tribunal in this behalf opined:- "It is undisputed fact that Shri Mool Singh was examined although his name was not in the list of witnesses. The applicant's request to call Shri Jumma as defence witness was not allowed. Not only this but in the absence of the departmental representative Shri Madhukar 12 Sharma, the applicant was compelled to cross- examine Shri Mool Singh who was cited as main witness in this case. It is also not disputed that the Inquiry Officer himself has cross-examined the applicant which was the duty of the departmental representatives. It appears that the conduct of the Inquiry Officer in this case has been throughout biased and it appears that he has acted with predetermined notions which should have caused prejudice to the applicant." We are in general agreement with the said observations. 25. Our attention has been drawn to the order passed by the appellate authority dated 17th April, 2000. It is a long order, a portion whereof we have noticed hereinbefore. 26. We may at this juncture notice that the appellate authority did not consider the legal question that the Inquiry Officer was bound to take recourse to Rule 14 of the CCS (CCA) Rules particularly when, apart from the orders of the Customs Authorities and the criminal case, no other evidence appears to have been brought on record. No reason has been assigned as to why the request of the respondent to call 'Jumma' as defence witness to prove the bonafide of the respondent had been turned down. 29. There cannot be any doubt whatsoever, as has been submitted by the learned Additional Solicitor General, that initiation of departmental proceeding is permissible even after the judgment of acquittal is recorded by the criminal court. But the same would not mean that a proceeding would be initiated only because it is lawful to do so. A departmental proceeding could 13 be initiated if the department intended to adduce any evidence which is in its power and possession to prove the charges against the delinquent officer. Such a proceeding must be initiated bona fide. The action of the authority even in this behalf must be reasonable and fair. 35. It is not a case where a mere benefit of doubt had been given to the respondent in the criminal proceeding. The criminal court has given a positive finding that the prosecution has not been able to prove that the accused had misappropriated the goods. His visit to the border for discharging his duties did not tantamount to misuse of the post or the authority. No evidence has been presented that he did not have the authority to go to the border side on official duties and even the department had not forbidden him from going to that place. It was held that as misappropriation of the property has not been proved, the question of any criminal conspiracy did not arise. No evidence had been adduced to bring home the charge of criminal conspiracy, which is an independent crime.” 6. In the instant case, accident has taken place on 4.7.1991. The learned Motor Accident Claims Tribunal has made award on 15.3.1993. The decision to initiate disciplinary proceedings against the petitioner apparently taken on 27.1.1994 after the award was passed by the Motor Accident Claims Tribunal. The FIR was also registered after the 14 accident had taken place on 4.7.1991. Petitioner as well as Driver, Chanda Singh, was charged with and tried for offences punishable under sections 279, 337, 338 and 304-A of the Indian Penal Code. The learned Judicial Magistrate 1st Class has acquitted them vide judgment dated 20.8.1997. The learned Single Judge of this Court has also dismissed the appeal preferred by the State against the judgment of the learned Judicial Magistrate 1st Class on 13.12.2000. The leaned Single Judge in his judgment dated 13.12.2000 has noticed that PW-1 Purshotam, Conductor of the bus has nowhere deposed that petitioner was driving the bus at the relevant time. He could not state who was driving the bus at the relevant time. PW-2 Sukh Raj has only stated that an old man was driving the bus. He has specifically denied that the bus was being driven by the petitioner at the relevant time. PW-4 Amar Singh, PW-6 Anup Singh and PW-7 Ajit Singh were also travelling in the bus but have not stated that the petitioner was driving the bus at the relevant time. The learned Single Judge has discarded the statement of PW-3 Baskhi Ram in view of the statement made by PW-1 Purshotam, PW-2 Sukh Raj, PW-5 Amar Singh, PW-6 Anup Singh and PW-7 Ajit Singh. 7. Petitioner was chargesheeted for unauthorized act of driving the bus on 4.7.1991. In the instant case, driver 15 Chanda Singh stopped the bus at Ganoh and went to Jawali to attend the Court. Purshotam, Conductor of the bus, as per the material available on record, handed over the key to the petitioner, who drove the bus, which met with accident on 4.7.1991. The Criminal Court has honourably acquitted the petitioner and the judgment has been upheld by this Court. The Court is of the considered view that the disciplinary proceedings should not have been initiated against the petitioner after a period of three years. It is an inordinate delay. The management has not given any plausible reason for initiating disciplinary proceedings against the petitioner after a gap of three years. 8. The Inquiry Officer has found him guilty of unauthorisedly driving the bus on 4.7.1991. He submitted the report to the Disciplinary Authority. The Disciplinary Authority provisionally, vide memo 28.11.1996, came to conclusion that penalty of removal should be imposed upon the petitioner. Petitioner has not been supplied with the copy of inquiry report by the Disciplinary Authority. The Disciplinary Authority could impose the penalty upon the petitioner only after supplying the copy of inquiry report to the petitioner to enable him to file representation against the same to point out shortcomings, deficiencies or illegalities in the inquiry report. The very purpose of issuing show cause notice was defeated since the 16 Disciplinary Authority had already made up its mind to impose penalty of removal upon the petitioner. the Disciplinary Authority was required to supply the copy of inquiry report to the delinquent. 9. It is settled law by now on the basis of definitive law laid down by their Lordships of the Hon’ble Supreme Court in Managing Director, ECIL, Hyderabad and Others versus B. Karunakar and Others (1993) 4 SCC 727 that the copy of inquiry report has to be supplied to an employee before the disciplinary authority makes up his mind to impose penalty. The purpose of supplying the copy of inquiry report is to enable an individual to represent against the short-comings, deficiencies and violation of mandatory rules during the course of departmental inquiry. Their Lordships have held as under:- “The reason why the right to receive the report of the Inquiry Officer is considered an essential part of the reasonable opportunity at the first stage and also a principle of natural justice is that the findings recorded by the Inquiry Officer form an important material before the disciplinary authority which along with the evidence is taken into consideration by it to come to its conclusions. It is difficult to say in advance, to what extent the said findings including the punishment, if any, recommended in the report would influence the disciplinary authority while drawing its conclusions. The findings further might have been recorded without considering the relevant evidence on record, or by misconstruing it or unsupported by it. If such a finding 17 is to be one of the documents to be considered by the disciplinary authority, the principles of natural justice require that the employee should have a fair opportunity to meet, explain and controvert it before he is condemned. It is the negation of the tenets of justice and a denial of fair opportunity to the employee to consider the findings recorded by a third party like the Inquiry Officer without giving the employee an opportunity to reply to it. Although it is true that the disciplinary authority is supposed to arrive at its own findings on the basis of the evidence recorded in the inquiry, it is also equally true that the disciplinary authority takes into consideration the findings recorded by the Inquiry Officer along with the evidence on record. In the circumstances, the findings of the Inquiry Officer do constitute an important material before the disciplinary authority which is likely to influence its conclusions. If the Inquiry Officer were only to record the evidence and forward the same to the disciplinary authority, that would not constitute any additional material before the disciplinary authority of which the delinquent employee has no knowledge. However, when the Inquiry Officer