R S GUPTA Vs. GENERAL MANAGER GUJARAT REFINERY

JUDGEMENT

(1.) Late Shri R. S. Gupta filed this petition in this Court challenging therein the order at Annexure-E dated 30-6-1982 passed by the Deputy General Manager, Gujarat Refinery, Baroda under which he was ordered to be dismissed from service after holding departmental inquiry on the charges of theft and dishonesty in connection with the company's property. Shri Gupta was holding the post of Plant Operator Gr. I. During the pendency of this petition Shri Gupta has expired on 10-9-1985. His legal heir, the widow moved Civil Application No. 224 of 1986 for bringing heirs on record. This Civil Application was allowed by this Court on 7-2-1986 but the correction has not been carried out by the learned Counsel in the record of the writ petition. The petitioner late Shri R. S. Gupta was served with the charge-sheet vide memo dated 2-7-1981. The delinquent was charged with the misconduct that on 26-6-1981 at about 2-25 hours while on duty he was caught by C.I.S.F. guard while pouring company's petrol in his scooter No. GAF 1151. This misconduct amounts to theft of the company's property. It is a serious misconduct as provided under the Standing Orders of the Company. The petitioner was directed to furnish his explanation. He furnished his explanation on 6-7-1981 but that was not found satisfactory by the respondent and the respondent has taken a decision to hold an inquiry on the misconduct alleged against the petitioner. The inquiry officer after conducting the inquiry submitted the inquiry report in which the petitioner was found guilty of the alleged misconduct of theft of office property. The Disciplinary Authority after considering the inquiry report and the record of the inquiry passed an order of dismissal of the petitioner from service. Taking into consideration the fact that theft of petrol from the plant is a very serious misconduct and there is no mitigating circumstances also to view it leniently, the punishment of dismissal was considered justified. The petitioner approached this Court against the aforesaid order by filing S.C.A. No. 2837 of 1982. Said S.C.A. was dismissed by this Court as not pressed on the ground that the petitioner has an alternative remedy of appeal against the order of dismissal. The appeal of the petitioner has been dismissed by the Appellate Authority vide order dated 27-8-1982. The Appellate Authority has also considered the question whether penalty imposed is in accordance with law. But taking into consideration all the facts and circumstances of the case as well as the fact of theft and that the company is engaged in refining of crude oil - a well-known petroleum product, the penalty of dismissal has been held to be justified. Hence, this petition by the petitioner. The theft of petroleum product of the company made by the petitioner has been reported to the police. The police has registered a case and after investigation, charge-sheet has been filed in the criminal Court. The competent criminal Court vide its judgment dated 18-1-1983 has acquitted the petitioner of the charge of theft by giving benefit of doubt. The petitioner has produced copy of the judgment of the criminal Court along with the application for amendment. The learned Counsel for the respondent has not disputed the fact that the petitioner has been acquitted in the criminal case by the criminal Court. The learned Counsel for the petitioner while challenging the orders of dismissal and the order of the Appellate Authority, firstly he contended that the inquiry has been conducted in violation of the principles of natural justice. It has next been contended that as the petitioner has been acquitted in the criminal case, which was based on the same charge of theft of the petrol of the company, he cannot be punished again for the same offence in the departmental proceedings on the same charges. Lastly, it has been contended that the petitioner has been acquitted in the criminal case which is a mitigating circumstance and the penalty of dismissal should be substituted by some lessor penalty. The penalty of dismissal is too harsh and excessive in a case where on the same charges the criminal Court has acquitted the petitioner.

(2.) On the other hand, the learned Counsel for the respondent contended that the inquiry has been conducted after following the principles of natural justice. The acquittal of the petitioner in the criminal case has no relevance whatsoever because there is no bar on the same charges an employee cannot be proceeded in a criminal case as well as departmentally. The standard of proof in these two proceedings is different. In criminal case the charges are to be proved beyond reasonable doubt; whereas in the departmental inquiry the standard of proof is of preponderance of probability. It has next been contended that this Court will not sit above the finding of the Inquiry Authority, as the Appellate Authority. In support of his contention, the learned Counsel for the respondent placed reliance on the decision of the Supreme Court in the case of Kusheshwar Dubey v. Bharat Cooking Coal Co. Ltd. & Anr., reported in 1988(4) SCC 319, Government of Tamil Nadu v. A. Rajapandian, AIR 1955 SC 561 and Union of India v. Sardar Bahadur, reported in 1992(2) SCR 218. It has next been contended that this Court has no power of judicial review in the matter of punishment to be awarded to the delinquent on proved misconduct by the Discipline and Appeal Authority. What punishment has to be awarded to the delinquent is exclusively in the discretion of the discipline and appellate authority. This Court sitting under Art. 226 of the Constitution cannot substitute its own discretion in such matters. In support of this contention the learned Counsel for the respondent has placed reliance upon the decision of the Supreme Court in the case of State Bank of India v. Samarendra Kishore Endow and Anr., reported in JT 1994(1) SC 217. As a rejoinder to the submissions learned Counsel for the petitioner argued that this Court has jurisdiction to interfere in the matter of penalty imposed upon the delinquent by the Disciplinary Authority. In support of this contention the learned Counsel for the petitioner has relied upon the decision of the Supreme Court in the case of B. C. Chandulal v. Union of India and Ors., reported in JT 1995(8) SC 65. I have considered the contentions which have been made by the learned Counsels for the parties. The contention of the learned Counsel for the petitioner that the petitioner was not served with the charge-sheet cannot be accepted. The Annexure- A is a document which titles as charge-sheet but the learned Counsel for the petitioner made a grievance that it was only a letter calling for explanation of the petitioner on the misconduct and not a charge-sheet. The document Annexure-A contains a charge which has been alleged against the petitioner. In this document it has been mentioned that the petitioner's act referred therein amounts to theft and dishonesty in connection with company's property which is a serious misconduct within the meaning of clause 22(iv) of the Company's Standing Orders. The petitioner was called upon to explain why disciplinary action should not be taken against him for this serious act of misconduct. Further, recital in the aforesaid documents is very material. The petitioner was directed to send his explanation within 3 days from the date of receipt of charge-sheet failing which it shall be presumed that the petitioner has nothing to explain and further action will be taken as per the Standing Orders. A reading, as a whole, of this document I am satisfied that it is a full-fledged chargesheet and not a letter of calling of explanation as tried to be argued by the learned Counsel for the petitioner. The purpose and object of the charge-sheet is to make known to the petitioner the charges which have been levelled against him and he has to explain the same. The first part of this document Annexure-A is a charge which has been framed against the petitioner. The petitioner has to be given opportunity to explain about the charge. This opportunity is furnished to the petitioner and every delinquent should be afforded an opportunity to explain that charge framed against him is not sustainable. The next stage comes where the disciplinary authority will consider the reply to the charge submitted by the delinquent and then to form an opinion whether it is a matter in which a departmental inquiry should be conducted or charges should be dropped. The procedure that should be followed in the present case is that after the receipt of the reply to Annexure-A, the Disciplinary Authority has to hold inquiry against the petitioner. Yet there are two other reasons on the basis of which this contention of the learned Counsel for the petitioner is not acceptable. The petitioner has not made any grievance that Annexure-A is not a charge-sheet before the Inquiry Officer. Not only this, the petitioner has participated in the inquiry and he has produced all his defence in support of the charge framed against him. The petitioner was fully aware of and made known of the charges on which the inquiry will be held and he has to defend.

(3.) The learned Counsel for the petitioner has failed to show how any prejudice has been caused to him in the matter on the ground as alleged and contended during the course of the arguments. Any illegality in the procedure of the inquiry does not vitiate the inquiry unless the petitioner has made out a case that it has resulted in the serious prejudice to his defence or any other legal right which the petitioner has failed to make out in the present case. The next contention of the learned Counsel for the petitioner that he has been given very short time for filing reply to the chargesheet, it is suffice to say that this contention of the petitioner is also devoid of any substance. Whether time was sufficient or not is a matter for the petitioner to decide and admittedly when the petitioner has not made any grievance in this respect, it is too late for him to make such a grievance at this stage when dismissal order has been passed and Appellate Authority has also confirmed the said order. In case the petitioner considered that 3 days was insufficient to file reply, then he should have made grievance in respect thereof at that time. Apart from this the fact, that petitioner has not prayed for more time to file reply to the charge-sheet suggests that his grievance which has been made now in the writ petition is nothing but only an afterthought and got up for the sake of argument. Apart from this, the learned Counsel for the petitioner has not raised these grievances before the Appellate Authority. In case this would have been real grievance then the same should have been raised before the Appellate Authority and non-raising of the same by the petitioner before the said authority establishes that he has no grievance whatsoever on this count. In view of this, the first contention of the learned Counsel for the petitioner is rejected. In the case of Kusheshwar Dubey v. M/s. Bharat Cooking Coal Ltd. and Ors., reported in 1988(4) SCC 319 the Apex Court held that the disciplinary proceedings as well as the criminal case can be initiated simultaneously on the same charges against the delinquent. It has been further held by the Supreme Court in the aforesaid case that in appropriate cases where the delinquent in such case prays for stay of the departmental proceedings on the ground of pendency of the criminal case on the same charges it can be granted. Acquittal of the petitioner in criminal case admittedly came after the order of dismissal was passed. Thus, acquittal in criminal case which has been made by giving benefit of doubt will have no effect on the legality, propriety and correctness on the order of dismissal made after holding the departmental inquiry. The learned Counsel for the petitioner has failed to point out any provision from the relevant Standing Orders or from any other Act or the Rules that on the acquittal of the delinquent in the criminal case on the same charges, the departmental inquiry automatically comes to an end. The matter would have been different where the dismissal would have been only on the ground of conviction in the criminal case which is not the case here. The disciplinary proceedings is not a criminal trial. In the criminal trial the standard of proof is the standard of proving the guilt of the accused beyond reasonable doubt. On the other hand, in the disciplinary proceedings the standard of proof is that of preponderance of probability. The acquittal of the petitioner in the criminal case is based on by giving him the benefit of doubt and as such it is not correct to contend by the learned Counsel for the petitioner that the petitioner could not have been punished in the departmental inquiry after his acquittal by the criminal Court. These are two separate and distinct proceedings. It is not a case of double penalty on the same charges as argued by the learned Counsel for the petitioner. Criminal liability of the petitioner for the offence committed, is a matter to be taken and decided by the criminal Court. But this conduct may be laid to serious misconduct and which may render himself unfit for the job. Whether the petitioner should be continued in service when he has committed such a serious misconduct of theft of the property of the company is a matter to be gone into departmentally and where charges are proved penalty has to be given. There are serious charges of theft of property of the company, and certainly it is a case of serious misconduct. This Court sitting under Art. 226 of the Constitution has no jurisdiction to sit as an appellate authority on the report of the inquiry officer and decisions of the disciplinary and appellate authority. As stated earlier, I do not find any illegality or infirmity in the inquiry and so far as the merit of the case is concerned this Court will not go on the question of sufficiency of evidence to prove the charge against the petitioner. The second contention of the learned Advocate for the petitioner deserves no acceptance. Lastly, the learned Counsel for the petitioner submitted that the penalty of dismissal is excessive or harsh is also devoid of any merit. In the case of B. C. Chaturvedi v. Union of India and Ors., (supra) Supreme Court has considered the matter regarding power of review of the Court in the matter of penalty imposed on the proved misconduct and held :