2006 Supreme(SC) 105

2006(1) Supreme 697
Supreme Court of India
(From Calcutta High Court)
Arijit Pasayat and Tarun Chatterjee, JJ.
South Bengal State Transport Corpn. —Appellant
versus
Swapan Kumar Mitra & Ors. —Respondents
Civil Appeal No. 1015 of 2005
Decided on 3-2-2006
Counsel for the Parties :
For the Appellants : Janaranjan Das and Swetaketu Mishra, Advocates.
For the Respondents : Chanchal Kumar Ganguli, Ms. Aarti Khera and V.K. Monga, Advocates.

Important point
An order of removal from service emanating from departmental proceedings can be passed even after acquittal of delinquent employee in criminal case.

Headnote:(i) Service Law—Criminal case against delinquent employee ending in acquittal—Scope for continuation of departmental disciplinary proceedings—An order of removal from service emanating from a departmental proceedings can very well be passed even after acquittal in criminal case.

       Held : Although the Division Bench had not categorically said that the departmental proceeding could not be continued and punishment could not be imposed on the delinquent employee when the criminal case ended in acquittal, even then the learned counsel for the respondents sought to argue this ground before us. In our view, this ground is no longer res-integra. In Nelson Motis v. Union of India & Ors. [1992(4) SCC 711] a three-Judge Bench of this Court observed at paragraph 5, as follows:

       “So far the first point is concerned, namely whether the disciplinary proceedings could have been continued in the face of the acquittal of the appellant in the criminal case, the plea has no substance whatsoever and does not merit a detailed consideration. The nature and scope of a criminal case are very different from those of a departmental disciplinary proceeding and an order of acquittal therefore, cannot conclude the departmental proceeding. Besides, the Tribunal has pointed out that the acts which led to the initiation of the departmental disciplinary proceeding were not exactly the same which were the subject matter of the criminal case.” (Emphasis supplied)

       Similarly in Senior Superintendent of Post Offices, Pathamthitta and Ors. vs. A. Gopalan [1997(11) SCC 239] the view expressed in Nelson Motis vs. Union of India & Ors. (supra) was fully endorsed by this Court and similarly it was held that the nature and scope of proof in a criminal case is very different from that of a departmental disciplinary proceeding and order of acquittal in the former, cannot conclude the departmental proceedings. This Court has further held that in a criminal case charge has to be proved by proof beyond reasonable doubt while in departmental proceeding the standard of proof of proving the charge is mere preponderance of probabilities. Such being the position of law now settled by various decisions of this Court, two of which have already been referred to earlier, we need not deal in detail with the question whether acquittal in a criminal case will lead to holding that the departmental proceedings should also be discontinued. That being the position, an order of removal from service emanating from a departmental proceeding can very well be passed even after acquittal of the delinquent employee in a criminal case. (Paras 9 and 10)

       (ii) Service Law—Order of removal from service—Respondent was employed driver on a bus which met with accident causing death of 15 passengers and injuries to many others—In departmental inquiry, Inquiry Officer on basis of report of District Magistrate and depositions made before him concluded that Respondent due to his rash and negligent driving caused the accident—Criminal case had ended in acquittal—Disciplinary authority relying on report of Inquiry Officer passed order of dismissal of respondent from service—Single Judge in writ jurisdiction set aside dismissal on a finding copy of report of inquiry officer and documents were not supplied to respondent for his comments—Judge directed disciplinary authority to supply those copies and to reach fresh conclusion—Respondent filed appeal and Division Bench held that in absence of copies supplied, disciplinary proceedings were liable to be quashed and directed for reinstatement of respondent with back wages—Appeal—Whether copies of documents relied on by Inquiry Officer and disciplinary authority must be served on respondent before passing order of removal? Yes whether non-supply of documents would vitiate departmental proceeding in its entirety and direction for reinstatement should be passed? No.

       Held : On the question, whether copies of the documents relied on by the Inquiry Officer and the disciplinary authority must be served on respondent No. 1 before passing any order of removal from service, it is no doubt true that such order of punishment, ought not be passed without supplying the copies of the documents to the respondent No. 1. Now the question is whether non-supply of the documents, as referred to herein before, would vitiate the departmental proceeding in its entirety and directions for reinstatement should be passed or directions to supply copies of documents relied on by the authorities should be made and thereafter direct reinstatement of respondent No. 1 into service on condition that the disciplinary authority shall continue with the disciplinary proceeding from the stage of supplying copies of the documents to the respondent No. 1 to reach a fresh and final conclusion. It cannot be disputed that serious prejudice would be caused to the respondent No. 1 if the documents on which reliance was placed by the authorities in removing him from service were not supplied to him. This will cause denial of reasonable opportunity of hearing to him. This view was also expressed by the decision of this Court in the case of Union of India V. Mohd. Ramzan Khan [1991(1) SCC 588], which was approved by the Constitution Bench of this Court in Managing Director ECIL Hyderabad & Ors. v. B. Karunakar and others [1993(4) SCC 727]. (Para 11)

       In view of the Constitution Bench decision of this Court, as referred to herein earlier, we, therefore, cannot have any dispute that the respondent No. 1 was entitled to a copy of the inquiry report, report of the District Magistrate and all allied documents, including depositions of witnesses relied on by the District Magistrate. What should be the effect of non-supply of copies of these documents to respondent No. 1? Was it open to the Court to set aside the order of removal, quash the departmental proceedings and order reinstatement mechanically on the ground that the copies of documents, as referred to herein earlier, were not supplied to the respondent No. 1 or a direction be given to the disciplinary authority, as was done by the learned Single Judge to supply copies of the documents and then permit the delinquent employee to make a representation or to file a comment on the same and thereafter to proceed from that stage to reach a fresh conclusion on the question of removal from service of Respondent No. 1 after taking into consideration the comments made by him and also the inquiry report and other evidences placed before the disciplinary authority. This aspect was also taken into consideration by the Constitution Bench of this Court in the case of Managing Director ECIL (Para 13)

       Applying the principles laid down by the Constitution Bench, it cannot be denied that the learned Single Judge was justified in sending the case back to the disciplinary authority and ordering him to supply a copy of the inquiry report along with the report of the District Magistrate and other documents relied upon by him to respondent No.1 and thereafter to proceed from that stage after seeking comments on those reports from respondent No. 1 to reach a fresh conclusion. We are of the view that at the appellate stage, the Division Bench was not justified to short cut the procedure by going into the merits on the question of removal from service of the respondent No. 1 particularly when the learned Single Judge had not decided the case of respondent No. 1 on the question of removal on merits and when the disciplinary authority had passed the order of removal practically relying on the Inquiry Report, a copy of which was not supplied to the respondent No. 1 for filing comments. It is well settled that the Inquiry Officer and disciplinary authority are the sole judges of facts. Adequacy and reliability of the evidence is not a matter that can be canvassed before a High Court in a writ proceeding under Article 226 of the Constitution (See: State of A.P. & Ors. v. S. Sree Rama Rao [AIR 1963 SC 1723]. (Para 14)

       (iii) Service Law—Disciplinary Authority or Inquiry Officer are not Courts—Strict procedure that are to be followed in Courts may not be strictly adhered to. (Para 16)