1. Through this O.A. the applicant seeks quashment of the orders dated 14.6.2001 (Annex. A.1) 25.3.88 (Annex. A-2) passed by the respondent No. 3 and the order dated 28.3.89 (Annex. A-3) passed by the respondent No. 2. It is also prayed that the respondents be directed to refund the amount which has been recovered from him pursuant to the order Annex.
A-2.
2. The relevant facts arc these. The applicant was employed as Driver 'B' in the office of the 3rd respondent. He was served with a charge-sheet for imposing major penalty vide communication dated 3.10.86. The allegations made against the applicant were that he was co-driver of the engine No. 6272 YDM-4 Train No. 509 and he was responsible for starting the train without authority passing starter No. 26 of road No. 5 routing starter No. 101 which was 197.20 meter away from the starter signal and stopped the train at a distance of 476.60 meter. The applicant in his reply denied the charges. The enquiry was held and the Enquiry Officer did not find the misconduct proved, but the Disciplinary Authority, holding the charge of misconduct established, imposed a penalty of withholding of increments for two years. A criminal case was also filed against the applicant in which he has been acquitted.
3. The ease for the applicant is that in both the proceedings, i.e.
departmental enquiry as well as in the criminal case, the same set of facts were stated and the same persons were cited as witnesses and as the applicant has been acquitted in the criminal case filed against him vide judgment dated 30.1.2001 and as the inquiry officer had not found the applicant guilty of the charge he is entitled to be exonerated in the departmental proceedings. It is stated that the applicant waited for the decision in the criminal case and after he was acquitted in the case he made representation to the respondents to exonerate him of the penalty imposed by the Disciplinary Authority and affirmed by the Appellate Authority, which the respondents have rejected. Hence this O.A.4. In the reply the respondents have resisted the relief claimed mainly on the ground that the application has been filed 11 years after the expiry of the period of limitation, as the penalty was imposed in the year 1988 and the Appellate Authority passed the order in the year 1989, whereas this O.A. has been filed on 27.8.2001. It is pointed out that the applicant had preferred revision against the appellate order which is still pending with the competent authority. The respondents case is that since the alternative remedy available to the applicant was not exhausted this O.A. is not maintainable.
6. We have heard the learned Counsel for the parties and perused the documents placed on record.
7. Mr. Malik, learned Counsel for the applicant contended that the criminal case was filed against the applicant on the same set of facts on which the departmental proceedings had been started and when the applicant has been acquitted in the criminal case on the same evidence there cannot be any justification for allowing the penalty imposed in the Disciplinary proceedings to stand. He contended that the cause of action has arisen to the applicant after the decision given by the criminal Court and when his representation was rejected vide communication dated 14.6.2001. He urged that the Disciplinary Authority had erred when it did not accept the findings of the Enquiry Officer and held the applicant guilty and imposed the penalty without issuing show cause notice to him. Inviting our attention to the Misc.
Application filed alongwith O.A. Mr. Malik prayed for the condonation of delay. Mr. Malik relied on the cases of Pratap Singh v. Lt. Governor of Delhi and Ors., 2001(3) ATI 362, Satveer Singh v. Union of India, O.A. No. 252/96, decided by Jodhpur Bench of this Tribunal on 20.1.2000, and Capt. M. Paul Anthony v. Bharat Gold Mines Ltd. and Anr., 1999 SCC. (L&S) 810=1999(3) SLJ 152 (SC), in support of his contention.
8. On the other hand, Mr. Bhandari, learned Counsel for the respondents contended that the application should be dismissed on the ground of limitation alone in as much as the effective order was passed in the year i 989 and this O.A. has been filed in the year 2001. He submitted that no satisfactory reasons have been shown in the M.A. for condoning the delay. He eanvassed that the objects of Disciplinary proceedings and the Criminal proceedings are different and even if a person is acquitted by a Criminal Court, it does not necessarily mean that a delinquent official cannot be punished in the Disciplinary proceedings.
He contended that when the Rules provided that a revision petition could be filed against the order of penalty and the applicant has even availed that remedy, he should have waited for the decision of the revision petition.
9. We have given the matter our anxious consideration. It is evident from the facts that the orders under challenge in this O.A. were passed in the years 1988 and 1989. Section 21 of the Administrative Tribunals Act, 1985, provides that an order can be challenged within a period of one year from the date of issue of such order. Since the impugned orders had not been challenged within the period of limitation, Misc.
Application has been filed for condonation of delay.
10. The first question to be considered is whether the M.A. for condonation of delay should be allowed and the delay should be condoned.
11. In the M.A. condonation has been sought on the ground that the criminal case was decided on 30.1.2001, in which the applicant has been acquitted, thereafter the applicant made representation to the respondents for re-calling the order imposing penalty, but his representation was rejected on 14.6.2001.
12. The facts before the Principal Bench in the case of Pratap Singh (supra) were that Disciplinary proceedings and criminal proceedings had been initiated against the applicant therein. The Disciplinary proceedings were concluded on 12.11.87, whereas the Criminal Court vide its judgment dated 3.5.2000 acquitted the applicant therein. The Division Bench, relying on the decision of the Apex Court in Constable Virender Singh v. Lt. Governor of Delhi and Ors., Civil Appeal No.26491 of 95, decided on 21.2.96, interfered in the order of penalty and converted the order of dismissal into one of compulsory retirement, which entitled the applicant therein to pensionary benefits. Since the judgment of Supreme Court referred in the case of Pratap Singh (supra) is said to be not reported, it is not possible for us to know the facts of that case and situation under which the above order was passed.
However, a portion of judgment reproduced in the order in Pratap Singh's case indicates that Their Lordships of the Supreme Court had passed the order in view of the decision in the criminal case. What appears to us is that there was an appeal against the order of the High Court before the Supreme Court. Keeping in view that the appellant of that case had served in the department for more than 30 years, Their Lordships thought it proper to convert the penalty into compulsory retirement.
With respects, it cannot be accepted that it has been held that where a Criminal Court acquits an employee after the conclusion of the Disciplinary proceedings, that employee can challenge the Disciplinary proceedings at any point of time and the law of limitation will not apply.
13. As to the case of Satveer Singh (supra) on the basis of the order (copy of which shown to us) it may be stated that the objection of limitation did not appear to have been taken in that case. Further this Bench of the Tribunal in that case did not set aside the order of the Disciplinary Authority holding the misconduct proved, but remitted the matter for imposition of a penalty other than the penalty of dismissal.
The ruling does not assist the applicant in the instant case.
The ruling in the case of Pratap Singh (supra) in our opinion does not assist the applicant in making out a case for condonation of delay.
Admittedly, the applicant did not choose to challenge the order of the Disciplinary Authority as confirmed by the Appellate Authority within the period of limitation. If the matter is allowed to be re-opened on the ground that the delinquent officer was acquitted in the Criminal case, there will be no end of litigation. There may be a situation that the order of acquittal is challenged by the State before the High Court and the High Court reverses the order of acquittal and convicts the person. In that case again the matter will have to be considered on merits. In other words there will be no end of litigation. In our opinion, on the ground that the Criminal Court has acquitted the applicant many years after the order of the Appellate Authority confirming the order of the Disciplinary Authority, the delay in filing the O.A. cannot be condoned and it cannot be decided on merits.
14. The application is therefore liable to be dismissed on the ground of limitation alone keeping in view the law laid down by the Supreme Court in the cases of Ramesh Chand Sharma v. Udham Singh, 2000 SCC (L&S) 53=2000(2) SLJ 89 (SC), Secretary to Government v. Shivram Mahadu Gaikwad, (1995) Supp (3) SCC 23, and Director Settlement and Ors. v. D.Ram Prakash, 2002(1) SC SLJ 91.
15. Apart from that, it is settled legal position that the approach and objectives in the Criminal case and the Disciplinary proceedings are altogether distinct and different. In the Disciplinary proceedings, the question is whether an employee is guilty of the misconduct and whether he should be given major punishment or lesser punishment, whereas in the Criminal case, the point to be considered is if the case against the individual is established beyond reasonable doubt and if so, what type of punishment should be imposed on him. Needless to say, the standard of proof in a Departmental enquiry and in the Criminal trial is entirely different and distinct. Sec State of Rajasthan v. B.K.Meena,Capt. M. Paul Anthony v. Bharat Gold Mines Ltd. and Anr. (supra) relied upon by Mr. Malik, it was observed by their Lordships at para 13 of the report as under: "As we understand, the basis for this proposition is that proceedings in a criminal case and the departmental proceedings operate in distinct and different jurisdictional areas. Whereas in the departmental proceedings, where a charge relating to misconduct is being investigated, the factors operating in the mind of the disciplinary authority may be many such as enforcement of discipline or to investigate the level of integrity of the delinquent or the other staff the standard of proof required in those proceedings is also different than that required in a criminal case. While in the departmental proceedings the standard of proof is one of preponderance of the probabilities, in a criminal case, the charge has to be proved by the prosecution beyond reasonable doubt. The little exception may be where the departmental proceedings and the criminal cases are based on the same set of facts and the evidence in both the proceedings is common without there being a variance." That was the matter in which the question before the Apex Court was whether Criminal proceedings and the Departmental proceedings can be conducted simultaneously. The principle enunciated in that case was that in the Departmental proceedings the standard of proof is one of preponderance of probability while in the Criminal case, the charge should be proved by the prosecution beyond reasonable doubt. That being the legal position, it has to be held that simply on the ground that an employee has been acquitted in the Criminal case, there cannot be any valid justification for reviewing the conclusions reached in the Disciplinary proceedings, more so, 12 years after the Appellate Authority's order.
17. As to the contention of the learned Counsel for the applicant, that the Departmental proceedings and the Criminal case were based on the same set of facts and the evidence in both the proceedings was common and therefore the orders passed by the Disciplinary Authority and the Appellate Authority are liable to be quashed, it may be stated that in the Disciplinary proceedings 4 witnesses viz Shri A.B. Gaur, Shri Naval Prakash, Sh. Laxmi Narayan, Shri Hari Singh Meena had been examined.
Out of them only one witness Shri Naval Prakash was examined in the Criminal ease which is evident from the judgment dated 30.1.2001. In the Criminal case in all 4 witnesses had been examined but three of them were other than the witnesses examined in the Disciplinary proceedings. Therefore it cannot be accepted that the same set of evidence was produced in the Criminal case and Disciplinary proceedings.
18. Apart from that, it is noticed that in the Criminal case, the prosecution did not choose to produce any evidence against the applicant. In the Disciplinary proceedings the misconduct alleged against the applicant was that he was co-driver with Shri Ram Lal, Driver on 509 UP Mandor Express on 10.1.86 and that he was responsible for starting the train without authority passing starter No. 26 of road No. 5 and thus he violated certain norms and in the Disciplinary proceedings evidence was recorded and it was found that Ram Lal was also one of the Drivers of the train. It is not disputed that the applicant was one of the drivers of the train at the time when the incident took place. In such circumstances, it cannot be accepted that criminal case was based on the same set of facts and evidences.
19. Emphasis was laid down by the learned Counsel for the applicant that the Enquiry Officer had exonerated the applicant of the charge of misconduct and the Disciplinary Authority without issuing a show cause notice to the applicant, held him guilty.
In this connection out attention was drawn to the fact that in the memo of appeal (Review application dated 3.1.89) no such plea was taken that the applicant had not been issued show cause notice by the Disciplinary Authority before passing the order.
When the applicant had not taken this point in the memo of appeal, he cannot be allowed to raise this new point, which is a question of fact in this O.A. which has been filed 12 years after the order of the Disciplinary Authority. As a matter of fact the applicant had not preferred to challenge the order of the Disciplinary Authority by way of appeal. He had filed the review application after the expiry of period of limitation for appeal which was treated as appeal and was dismissed as barred by time.
20. That being so, on the contentions aforesaid the order of the Disciplinary Authority cannot be questioned in this O.A.21. It is settled legal position that the scope of judicial review in such matters is very limited and the Court cannot go into the adequacy and reliability of evidence. See K.S. Saini v. State of Punjab and Ors., 1999 SCC (L&S) 1424, where at para 16 it was observed as follows: "Before adverting to the first contention of the appellant regarding want of material to establish the charge, and of non-application of mind, we will have to bear in mind the rule that the Court while exercising writ jurisdiction will not reverse a finding of the inquiring authority on the ground that the evidence adduced before it is insufficient. If there is some evidence to reasonably support the conclusion of the inquiring authority, it is not the function of the Court to review the evidence and to arrive at its own independent finding. The inquiring authority is the sole judge of the fact so long as there is some legal evidence to substantiate the finding and the adequacy or reliability of the evidence is not a matter which can be permitted to be canvassed before the Court in writ proceedings." 22. That being the legal position the administrative determination by the Disciplinary Authority cannot be interfered with in this O.A. on the ground of the judgment of the Criminal Court.
23. For the reasons aforesaid both M.A. No. 160/2001, and O.A. No.238/2001 are dismissed. No order as to costs.