Judgment:
S.N. Aggarwal, J.
1. The petitioner was working as Inspector-A (WG-3) of Section No. 1150 in the Hindustan Machine Tools Limited, Pinjore-respondent No. 1. On 17.8.1994, he was involved in a case of theft for which a criminal case was registered against him at FIR No. 57 dated 17.8.1994, Police Station, Pinjore, for offences punishable under Section 380/411, I.P.C. The petitioner was tried in the said offence and he was convicted by the Court of Judicial Magistrate 1st Class, Panchkula, vide judgment dated 17.9.1999 (Annexure R2/5) for having committed an offence punishable under Section 380, I.P.C. He was sentenced till the rising of the Court and was punished with the fine amount of Rs. 3000/-. However, the petitioner had filed an appeal against the said judgment which was accepted by the Court of Additional Sessions Judge, Panchkula, vide judgment dated 27.5.2000 (Annexure P-1) and the petitioner was acquitted.
2. However, the petitioner was charge-sheeted by the respondents and department inquiry was held against him. The Inquiry Officer had submitted his report dated 27.1.1998 (Annexure P-2) and the petitioner was dismissed from service vide order dated 12.11.1999 (Annexure P-4).
3. Hence, the writ petition.
4. The respondents filed written statement. Their version was that immediately after committing the theft, the petitioner was caught red handed and he had admitted his guilt by making confessional statement before the Chief Security Officer, Hindustan Machine Tools Limited in the presence of a number of persons.
5. It was also pleaded that the petitioner was charge sheeted. Inquiry was held according to the Rules. The Inquiry Officer, vide inquiry report dated 27.1.1988 had held the charges as proved. Keeping in view the grave nature of charges proved against the petitioner, he was dismissed from service. Hence, it was submitted that there is no illegality in the impugned order.
6. The first submission of learned Counsel for the petitioner was that the petitioner was facing the trial in the criminal case when the inquiry was being conducted against him by the respondents. The petitioner had requested the respondents to postpone the inquiry till the finalization of the criminal case but the respondents proceeded with the inquiry in the absence of the petitioner. Therefore, not only the inquiry proceedings are vitiated but the order of punishment also falls to the ground.
7. This submission has been considered. It has no merit at all.
8. It has been held by the Hon'ble Supreme Court of India in the judgment reported as Depot Manager,Andhra Pradesh State Transport Corporation v. Mohd. Yousuf Mohd. and Ors. : (1997)IILLJ902SC and another judgment in State of Rajasthan v. B.K. Meena and Ors. : (1997)ILLJ746SC that departmental inquiry and criminal trial can proceed side by side. The same view of Law was adopted by this Court in the judgment reported as A.S.I. Sham Lal v. State of Haryana 2004 (1) S.L.R. (1) 796. It is only where the complicated question of law and fact are involved that the departmental enquiry is required to be stayed so that the defence of the petitioner is not disclosed which would cause prejudice to his criminal case.
9. Otherwise also, the petitioner had no right to remain absent from the inquiry proceedings. If according to him, the process of departmental inquiry simultaneously with the trial in a criminal case was going to cause prejudice to his case, he could have resorted to the legal remedy available to him either by filing a civil suit seeking to restrain the respondents from proceeding with the departmental inquiry or by invoking the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India. The petitioner did not resort to any of the legal remedies available to him. Rather, he sat at home silently and allowed the departmental proceedings to go on. Now, therefore, the petitioner cannot draw any benefit from his absence in the departmental inquiry proceedings and by remaining away from it. Therefore, merely because the inquiry was conducted ex parte, the same has neither become void or illegal nor it is vitiated by law.
10. It may also be noticed that the petitioner was caught red handed, while he, after committing the theft, was taking the stolen articles to his house. The confessional statement made by the petitioner in the presence of 4-5 persons, has been filed along with the written statement as Annexure R-2/2. Since the petitioner himself had admitted having committed the theft, that is the best evidence to prove the charges against him at least in the departmental enquiry.
11. Moreover, in the departmental inquiry, the charges were framed against him which were communicated to him. The inquiry has been conducted in accordance with law. It is a separate matter that the petitioner failed to participate in the inquiry proceedings but the Inquiry Officer, vide his report dated 27.1.1998, has held that charges have been proved against the petitioner.
12. Another submission made by learned Counsel for the petitioner was that the Inquiry report was submitted on 27.1.1998 but the order of punishment was passed on 12.11.1999, i.e. after the conviction of the petitioner in the criminal case. However, the petitioner has now been acquitted vide judgment dated 27.5.2000 by the Court of Additional Sessions Judge, Panchkula. It was submitted that since the petitioner has been acquitted in the criminal case on the same charges, therefore, dismissal order is liable to be set aside.
13. This submission has been considered. It has no merit. The acquittal in a criminal case does not debar either the holding of the enquiry nor it prohibits the punishment order if the charges are proved in the enquiry. Reference may be made to a judgment of the Hon'ble Supreme Court of India reported as Ajit Kumar Nag v. General Manager, Indian Oil Cooperation Limited and Ors. 2005 A.I.R. S.C.W. 4986 in which it was held as under:
11. As far as acquittal of the appellant by a criminal Court is concerned, in our opinion, the said order does not preclude the Corporation from taking an action if it is otherwise permissible. In our judgment, the law is fairly well settled. Acquittal by a criminal Court would not debar an employer from exercising power in accordance with Rules and Regulations in force. 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 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.
14. The last submission made by the learned Counsel for the petitioner was that the petitioner is a poor person. He had rendered 30 years of service. He has three daughters of marriageable age. The nature of offence is minor and the punishment of dismissal from service has been passed. It was submitted that the punishment imposed is shockingly disproportionate to the offence allegedly committed by the petitioner. Hence, it was prayed that the order of punishment be set aside.
15. This submission has been considered.
16. The petitioner himself has admitted as having committed theft of some valuable articles from the factory where he was working. It is also proved in the departmental inquiry. The law has been settled by the Hon'ble Supreme Court that it is within the domain of the Punishing Authority to impose the punishment and it not for the Courts to review the said punishment. The Courts are not sitting as a Court of Appeal. Their only jurisdiction is to find out if the punishment has been imposed in accordance with law by following the due procedure, as laid down by law. The punishment is neither perverse nor shockingly disproportionate.
17. Keeping in view the, discussion held above, there is no merit in the present writ petition. The same is dismissed.