IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR : : J U D G M E N T : : D.B. CIVIL WRIT PETITION NO. 905/2009 Union of India & Ors. Versus Mandal Vyas & Ors. Date of Judgment :: 22.03.2010 P R E S E N T HON'BLE MR. JUSTICE A.M. KAPADIA HON'BLE MR. JUSTICE GOPAL KRISHAN VYAS Mr. Vineet Kumar Mathur with Mr. M.S. Godara for the petitioners Mr. R.S Saluja for the respondents BY THE COURT (Per Hon'ble Mr. Vyas, J.): In this writ petition, the petitioners Union of India through the Secretary, Ministry of Communication, New Delhi and other officers of the department are challenging the order dated 26.09.2008 passed by the Central Administrative Tribunal, Jodhpur Bench, Jodhpur in Original Application No. 172/2003, whereby the learned Tribunal while disposing of the Original Application has passed the following order :- “In view of the above discussion, and as the family is facing financial hardship, the respondents are directed to re- consider this case and convert the penalty of dismissal into compulsory retirement. The wife of the deceased government servant may be sanctioned family pension, as per rules, from the date of death of the late Shyam Sundar Page 1 Vyas. The above exercise may be completed within a period of four months from the date of receipt of a copy of this order. This decision cannot be quoted as precedent since this decision would be applicable to the facts of this case only.” As per the brief facts of the case, the original applicant late Shri Shyam Sundar Vyas was working on the post of Postal Assistant in the petitioner department. He was placed under suspension vide the order dated 12.11.1997. Thereafter he was served with charge-sheet vide memorandum dated 04.08.1998 alongwith statement of article of charges and statement of imputation of misconduct. The original applicant filed reply on 15.02.199 to the allegations of misconduct and requested the authorities to issue him the copies of the documents, but his request was not accepted by the Enquiry Officer and vide the communication dated 22.02.1999, he was informed regarding denial of supplying copies of the documents desired by him. After denial of supplying copies of the documents, the original applicant filed a review petition before the Director of Postal Services, Jodhpur. The said authority turned down the request of the original applicant asking for supply of certain documents. The original applicant then preferred further petition dated 07.06.1999 to the Member (Personnel), Postal Services Board, New Delhi against the denial of supplying documents to him which was withheld by the Appellate Authority. Page 2 The original applicant late Shri Shyam Sundar Vyas had earlier requested that since the Enquiry Officer is well versed in the disciplinary cases and the nature of the case is quasi criminal, therefore, he may be allowed to engage a legal practitioner as his defence assistant, but this prayer was also turned down. The prayer of the original applicant for change of Enquiry Officer on the ground of bias against him was also turned down. Later on finally the Enquiry Officer submitted his Enquiry Report to the Disciplinary Authority on 10.02.2000. Since the Disciplinary Authority to whom the Enquiry Report was submitted was lower in rank than the original applicant, the matter was referred to the D.G., Department of Post, New Delhi for appointing ad hoc Disciplinary Authority and vide order dated 27.02.2001, Senior Superintendent, RMS JP Division, Jaipur was empowered to function as Disciplinary Authority. The Disciplinary Authority sent a copy of the Enquiry Report to the original applicant Shri Shyam Sundar Vyas vide office letter dated 8/9.05.2001 and he was called upon to submit his representation against the finding of the Enquiry Officer, if any, within a period of 15 days. The original applicant submitted his representation on 28.05.2001 against the finding of the Enquiry Officer. After considering the representation, finally the Disciplinary Authority passed an order Page 3 on 31.08.2001 whereby the penalty of dismissal was imposed upon the original applicant later Shri Shyam Sundar Vyas and the said order was challenged by way of filing Original Application before the Central Administrative Tribunal on various grounds. It is also one of the important fact placed on record by the original applicant late Shri Shyam Sundar Vyas before the Tribunal that for the same charges, a criminal case was also registered against him, in which he was acquitted by the Additional Chief Judicial Magistrate, Jodhpur on the basis of benefit of doubt, therefore, after acquittal it was prayed by him before the Tribunal that penalty order of dismissal from service passed against him deserves to be quashed on this ground alone. The learned counsel appearing on behalf of the original applicant submitted that the enquiry was not conducted as per the procedure laid down in the rules as no copies of the relevant documents desired by the original applicant were supplied nor he was allowed to engage a lawyer as defence assistant, therefore, the penalty order against the original applicant was not passed after providing reasonable opportunity of hearing, therefore, the said order may be quashed. Before the Tribunal, it was specifically pleaded that if the Tribunal did not like to interfere with the order passed by the department, then quantum of punishment imposed upon Page 4 him may kindly be reduced and for the said prayer, decision of the Hon'ble Apex Court in the case of V. Ramana Vs. A.P.S.R.T.C reported in (2005) 7 SCC 338 so also judgment in the case of B.C. Chaturvedi Vs. Union of India reported in JT 1995 Vol.8 55 was cited and it was prayed that if the punishment imposed by the Disciplinary Authority or Appellate Authority shocks the conscience of the High Court/Tribunal, then it may appropriately mould the relief, either directing the Disciplinary/Appellate Authority to reconsider the penalty imposed or to shorten the litigation, it may itself, in exceptional and rare cases impose appropriate punishment with cogent reasons in support thereof. The learned Tribunal while considering the above prayer observed in para 21 that the original applicant late Shri Shyam Sundar Vyas who was a Government servant had put in more than 30 years service and he was acquitted in the criminal case by the Court of Additional Chief Judicial Magistrate, Jodhpur, on the basis of benefit of doubt, so also he had deposited the government money which is alleged to be misappropriated by him, therefore, after his death in absence of any source of income his wife is facing financial difficulties, therefore, looking to the fact that original applicant's family is facing financial hardship, the respondents were directed to reconsider his case and convert the penalty of dismissal into compulsory retirement and the said judgment of the Tribunal dated 26.09.2008 is under challenge in this writ Page 5 petition. Learned counsel appearing on behalf of the petitioners submitted that the judgment rendered by the Tribunal impugned in this writ petition is not in consonance with the adjudication made by the Hon'ble Supreme Court. He has cited certain judgments in support of his contentions and prayed that the order impugned which is passed while giving concession to the delinquent late Shri Shyam Sundar Vyas deserves to be quashed on the ground that in the cited judgments, the Hon'ble Supreme Court has held that the punishment awarded by the Disciplinary Authority should not be interfered with in regard to quantum of punishment unless it is shockingly disproportionate to the charges. Learned counsel for the petitioners has cited the following judgments :- (1) Union of India & Ors. Vs. Narain Singh reported in (2002) 5 SCC 11 (2) Bharat Petroleum Corpn. Ltd. & Ors. Vs. T.K. Raju reported in (2006) 3 SCC 143 (3) Syndicate Bank & Ors. Vs. Venkatesh Gururao Kurati reported in (2006) 3 SCC 150 (4) U.P. State Road Transport Corporation, Dehradun Vs. Suresh Pal reported in (2006) 8 SCC 108 (5) Akhilesh Kumar Singh Vs. State of Jharkhand & Ors. reported in (2008) 2 SCC 74 (6) Ex-Constable Ramvir Singh Vs. Union of India & Ors. reported in (2009) 3 SCC 97 On the other hand, learned counsel Page 6 appearing on behalf of the respondents, legal heirs of the original applicant late Shri Shyam Sundar Vyas, invited our attention towards certain judgments and prayed that in view of the law laid down by the Hon'ble Apex Court, no error has been committed by the learned Tribunal while directing the respondents to reconsider the case and convert the penalty of dismissal from service into compulsory retirement. Learned counsel for the respondents has relied upon the following judgments :- (1) Capt. M. Paul Anthony Vs. Bharat Gold Mines Ltd. & Anr. reported in AIR 1999 SC 1416 (2) G.M. Tank Vs. State of Gujarat & Ors. reported in 2006 SCC (L&S) 1121 (3) Harjit Singh & Anr. Vs. State of Punjab & Anr. reported in (2007) 2 SCC (L&S) 997 (4) Pandiyan Roadways Corpn. Ltd. Vs. N. Balakrishnan reported in (2008) 1 SCC (L&S) 1084 We have considered the rivals submissions made by both the parties. In this case admittedly two proceedings were initiated for the alleged misconduct of the original applicant late Shri Shyam Sundar Vyas. In the department disciplinary proceedings were initiated and in the criminal court criminal case was filed for the alleged misconduct of misappropriation. Admittedly in the departmental proceedings he was found guilty and the Disciplinary Authority passed order for dismissal from service. However, the original applicant late Shri Shyam Page 7 Sundar Sharma was acquitted by the criminal court on the basis of benefit of doubt. It is true that for both the proceedings, the standard of proof and evidence as required to be assessed are different, but the fact remains that in the departmental proceedings late Shri Shyam Sundar Vyas was penalized with the penalty of dismissal from service whereas he was acquitted by the criminal court while giving benefit of doubt. Late Shri Shyam Sundar Vyas preferred an Original Application before the Central Administrative Tribunal in which he has challenged the order inflicting penalty of dismissal from service by the department, but during the pendency of the Original Application, the original applicant Shri Shyam Sundar Vyas died, therefore, his legal heirs were taken on record upon their application. It is true that the original applicant is not alive at present, but it is also one of the important fact that he was acquitted from the criminal case while giving benefit of doubt by criminal court, but in the departmental proceedings he was penalized with the penalty of dismissal from service. In the similar circumstances, in the case of Harjit Singh & Anr. Vs. State of Punjab & Anr. (supra), the Hon'ble Apex Court has passed the following order:- “Ordinarily, the disciplinary authority would have been asked to consider the matter afresh but the occurrence had taken place in the year 1984. The appellants and the said P had worked only for a few years, one of them is dead. In the aforementioned situation, it would Page 8 be justified to fix the quantum of punishment. In the facts and circumstances of this case and in particular having regard to the passage of time, punishment of compulsory retirement will meet the ends of justice. If otherwise eligible, the delinquents would be entitled to retiral benefits. The appeal is allowed to the aforementioned extent.” In the case of G.M. Tank Vs. State of Gujarat & Ors. (supra), the Hon'ble Apex Court has made the following adjudication in para 31 :- “Thus, as the facts and evidence in the departmental 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 basis of the approach and burden of proof would not be applicable in the instant case. Though the 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 case, (1999) 3 SCC 679 will apply.” Similarly in the case of Capt. M. Paul Anthony Vs. Bharat Gold Mines Ltd. & Anr. (supra), the Hon'ble Apex Court has made the following adjudication in para 36 of the judgment :- “In the peculiar circumstances of the case, specially having regard to the fact that the appellant is undergoing this agony since past 14 years despite having been acquitted by the criminal Court, fresh Page 9 departmental inquiry, held, cannot be directed to be instituted against him on the same set of facts. The appellant directed to be reinstated.” The above all adjudication made by the Hon'ble Apex Court clearly speak that in the matters where for the same charges departmental proceedings are initiated as well as criminal case is filed, and in the criminal case the incumbent is acquitted on the ground of benefit of doubt, then the matter is required to be considered thoroughly while taking into consideration the evidence upon which the departmental enquiry as well as the decision of the criminal case is based. In the present case, the Tribunal has given cogent reasons for interference in the quantum of punishment that the incumbent deposited the government money alleged to be misappropriated by him and he died during the pendency of the Original Application, therefore, it is appropriate to direct the Disciplinary Authority to reconsider the matter of late Shri Shyam Sundar Vyas and to convert the penalty of dismissal from service into compulsory retirement. In our opinion, the finding arrived at by the learned Central Administrative Tribunal is based upon sound grounds. The Tribunal has passed the order on the ground that late Shri Shyam Sundar Vyas who was a government servant worked for more than 30 Page 10 years in the department and in the criminal case filed against him in the court of Additional Chief Judicial Magistrate, Jodhpur, he was acquitted while giving benefit of doubt and his family is facing financial hardship, therefore, in our opinion, no interference is required in the judgment rendered by the learned Central Administrative Tribunal, Jodhpur Bench, Jodhpur dated 26.09.2008 which is under challenge in this writ petition. Hence, there is no error in the impugned judgment passed by the learned Central Administrative Tribunal, therefore, this writ petition is dismissed. [GOPAL KRISHAN VYAS], J. [A.M. KAPADIA], J. Pramod Page 11