Controller, KSRTC Vs. M.G. Vittal Rao
J U D G M E N T
Dr. B.S. CHAUHAN, J
appeal has been preferred against the judgment and order dated 27.10.2009
passed by the High Court of Karnataka at Bangalore in Writ Appeal No.702 of 2009,
by which it has dismissed the appeal preferred by the appellant against the
judgment and order dated 27.1.2009 passed by the learned Single Judge allowing
the writ petition No. 14354 of 2007 of the respondent-workman against the Award
of the Labour Court dated 17.2.2005.
and circumstances giving rise to this appeal are:-
A. The respondent employee
while working as helper in the appellant-Corporation in 1986 was subjected to disciplinary
proceedings vide charge-sheet dated 4.2.1987 which contained the article of charges
mainly on the allegations that on 3.10.1986 the respondent stayed away beyond
his duty hours at his place of employment i.e., Divisional Workshop and opened the
door of the blacksmith Section with the aid of a duplicate key and pulled the gas
cylinder trolley and equipment from blacksmith Section to the cash room alongwith
four other employees of the appellant-Corporation and opened the inner door of
the cash room by cutting the padlock and used the gas cylinder equipment for
committing the theft from cash chest.
B. The Divisional Traffic
Officer was appointed as the enquiry officer by the Disciplinary Authority vide
order dated 11.11.1993 to enquire into the charges leveled against the respondent
in the disciplinary proceedings. During the course of enquiry, the management witnesses
clearly stated that the respondent was present at the place of incident. On the
basis of the material produced on behalf of the management, the enquiry officer
found the charges leveled against the respondent proved and accordingly the
enquiry report was filed.
C. The Disciplinary Authority
after considering the material on record concurred with the findings recorded by
the Inquiry Officer and after completing the legal formalities imposed the punishment
of dismissal of the respondent from service w.e.f. 14.2.1997.
D. The respondent raised
the industrial dispute. Thus, the State Government made a Reference to the Principal
Labour Court for adjudication of the dispute and the same came to be registered
as Reference No.6 of 1999. On the basis of pleadings, the Labour Court framed various
issues for its consideration, inter-alia, as to whether the departmental
enquiry conducted against the respondent was fair and proper.
E. The Labour Court by its
order dated 20.11.2004 arrived at the conclusion that the departmental enquiry
conducted against the respondent was fair and proper. By its award dated
17.2.2005, the Court answered the reference in negative holding that there was
sufficient evidence before the enquiry officer to hold that the respondent with
his colluders had actively involved in breaking and opening the door of the
cash room and drilling the 3 cash chest to commit the theft. The respondent was
caught red handed and hence the charges were rightly held to be proved.
F. Being aggrieved by the
said award of the Labour Court, the respondent filed W.P. No.14354 of 2007(LK) before
the High Court which stood allowed by the learned Single Judge vide order dated
27.1.2009 to the extent that the order of the dismissal was modified into an order
of termination. The management was directed to pay the terminal benefits since
the respondent had retired from service. However, the learned Single Judge
arrived at the conclusion that the respondent was not entitled to any wages or
other monetary benefits till the date of his termination.
G. Being aggrieved by
the said order of the learned Single Judge, the respondent filed a Writ Appeal
No.702 of 2009 (L-KSRTC) under Section 4 of the Karnataka High Court Act. The
Division Bench vide impugned judgment and order dated 27.10.2009 allowed the
appeal filed by the respondent quashing the award of the Labour Court and reversing
the order of the learned Single Judge. The Division Bench proceeded to hold
that the respondent was entitled to be reinstated into service with all consequential
benefits. However, since the respondent had retired from service, he was
entitled to 50% of the backwages for the periods from 14.2.1997 (i.e. the date
of dismissal) till the date of his retirement (i.e. 31.7.2007). He was also
entitled to consequential benefits of retirement. Hence, this appeal.
S.N. Bhat, learned counsel appearing for the appellant has submitted that the
Labour Court rejected the contention on behalf of the respondent-workman that
he was entitled for re-instatement and all other consequential reliefs in view of
the fact that he stood acquitted by the Criminal Court. However, the learned Single
Judge as well as the Division Bench in appeal have accepted his contention and granted
the reliefs. The standard of proof in domestic enquiry and criminal proceedings
are different and mere acquittal by the Criminal Court does not entitle the
delinquent for exonerating in the disciplinary proceedings. Thus, the appeal
deserves to be allowed.
the contrary, Mr. V.N. Raghupathy, learned counsel appearing for the respondent-workman
has made all attempts to defend the judgments of the learned Single Judge as well
as the Division Bench contending that as the workman has been acquitted in the criminal
proceedings, the order of dismissal as a consequence of domestic enquiry
deserves to be set aside. In the facts and circumstances of the case, no
interference is warranted.
have considered the rival submissions advanced on behalf of the parties and
perused the record.
is evident from the record that when the respondent-workman was facing
disciplinary proceedings at the same time he had also faced the criminal trial for
the offences punishable under Sections 457 , 381 read with Section 34 of the
Indian Penal Code, 1860 (hereinafter called as `IPC'). The Metropolitan
Magistrate convicted the delinquent employee holding him guilty of the said
charges and sentenced him with a simple imprisonment for a period of six months
and a fine of Rs. 500/-.
respondent-workman filed appeal against the said order of conviction. However, the
appeal was also dismissed by the Appellate Court vide judgment and order dated
5.4.1994. The delinquent employee along with other co-accused preferred
Criminal Revision No. 299 of 1994 before the High Court which was allowed vide
judgment and order dated 9.7.1997.
Thus, the High Court acquitted
the said delinquent employee of all the charges leveled against him. Thus, the question
does arise as to whether in this backdrop the respondent-employee is entitled
for the relief granted by the High Court.
DEPARTMENTAL ENQUIRY AND
ACQUITTAL IN CRIMINAL CASE
question of considering reinstatement after decision of acquittal or discharge
by a competent criminal Court arises only and only if the dismissal from services
was based on conviction by the criminal Court in view of the provisions of
Article 311 (2) (b) of the Constitution of India, 1950, or analogous provisions
in the statutory rules applicable in a case. In a case where enquiry has been held
independently of the criminal proceedings, acquittal in a criminal Court is of
The law is otherwise.
Even if a person stood acquitted by a criminal Court, domestic enquiry can be
held, the reason being that the standard of proof required in a domestic
enquiry and that in a criminal case are altogether different. In a criminal case,
standard of proof required is beyond reasonable doubt while in a domestic
enquiry it is the preponderance of probabilities that constitutes the test to
In Nelson Motis v.
Union of India & Anr., AIR 1992 SC 1981, this Court held : "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
State of Karnataka & Anr. v. T. Venkataramanappa, (1996) 6 SCC 455, this
Court held that acquittal in a criminal case cannot be held to be a bar to hold
departmental enquiry for the same misconduct for the reason that in a criminal
trial, standard of proof is different as the case is to be proved beyond reasonable
doubt but in the departmental proceeding, such a strict proof of misconduct is
State of Andhra Pradesh v. K. Allabaksh, (2000) 10 SCC 177, while dismissing the
appeal against acquittal by the High Court, this Court observed as under:- "That
acquittal of the respondent shall not be construed as a clear exoneration of
the respondent, for the allegations call for departmental proceedings, if not
already initiated, against him."
dealing with a similar issue, a three-Judges Bench of this Court in Ajit Kumar Nag
v. General Manager (PJ) Indian Oil Corporation Ltd., (2005) 7 SCC 764, held as
under:- "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 the 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 the offender, the purpose of enquiry proceedings is
to deal with the delinquent departmentally and to impose penalty in accordance
with the 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 a departmental enquiry, on the other hand, penalty
can be imposed on the delinquent officer on a finding recorded on the basis of "preponderance
issue as to whether disciplinary proceedings can be held at the time when the
delinquent employee is facing the criminal trial, has also been considered from
time to time. In State of Rajasthan v. B.K. Meena & Ors., AIR 1997 SC 13, this
Court while dealing with the issue observed as under:-
"It would be
evident from the above decisions that each of them starts with the indisputable
proposition that there is no legal bar for both proceedings to go on simultaneously
and then say that in certain situations, it may not be `desirable', `advisable'
or `appropriate' to proceed with the disciplinary enquiry when a criminal case is
pending on identical charges...........
The only ground
suggested in the above decisions as constituting a valid ground for staying the
disciplinary proceedings is that `the defence of the employee in the criminal case
may not be prejudiced'.
This ground has,
however, been hedged in by providing further that this may be done in cases of grave
nature involving questions of fact and law. In our respectful opinion, it means
that not only the charges must be grave but that the case must involve complicated
questions of law and fact. Moreover, `advisability', `desirability' or `propriety',
as the case may be, has to be determined in each case taking into consideration
all the facts and circumstances of the case............
One of the contending
considerations is that the disciplinary enquiry cannot be - and should not be -
delayed unduly. So far as criminal cases are concerned, it is well known that
they drag on endlessly where high officials or persons holding high public offices
are involved. They get bogged down on one or the other ground.
They hardly ever reach
a prompt conclusion..........If a criminal case is unduly delayed that may itself
be a good ground for going ahead with the disciplinary enquiry even where the disciplinary
proceedings are held over at an earlier stage. The interests of administration
and good government demand that these proceedings are concluded expeditiously. It
must be remembered that interests of administration demand that undesirable elements
are thrown out and any charge of misdemeanour is enquired into promptly.
The disciplinary proceedings
are meant not really to punish the guilty but to keep the administrative machinery
unsullied by getting rid of bad elements. The interest of delinquent officer also
lies in a prompt conclusion of the disciplinary proceedings. If he is not guilty
of the charges, his honour should be vindicated at the earliest possible moment
and if he is guilty, he should be dealt with promptly according to law.
It is not also in the
interest of administration that persons accused of serious misdemeanour should be
continued in office indefinitely, i.e., for long periods awaiting the result of
criminal proceedings. It is not in the interest of administration. It only serves
the interest of the guilty and dishonest........" (Emphasis added)
Capt. M. Paul Anthony v. Bharat Gold Mines Ltd., AIR 1999 SC 1416, this Court
held that there can be no bar for continuing both the proceedings simultaneously.
The Court placed reliance upon a large number of its earlier judgments, including
Delhi Cloth and General Mills Ltd. v. Kushal Bhan, AIR 1960 SC 806;
Tata Oil Mills Co.
Ltd. v. The Workmen, AIR 1965 SC 155; Jang Bahadur Singh v. Baij Nath Tiwari,
AIR 1969 SC 30; Kusheshwar Dubey v. M/s. Bharat Coking Coal Ltd. & Ors.,
AIR 1988 SC 2118; Nelson Motis (Supra); and B.K. Meena (Supra), and held that proceedings
in a criminal case and departmental proceedings can go on simultaneously except
where both the proceedings are based on the same set of facts and the evidence
in both the proceedings is common.
proceedings, factors prevailing in the mind of the disciplinary authority may
be many, such as enforcement of discipline or to investigate level of integrity
of delinquent or other staff. The standard of proof required in those
proceedings is also different from that required in a criminal case. While in departmental
proceedings, the standard of proof is one of preponderance of probabilities, in
a criminal case, the charge has to be proved by the prosecution beyond reasonable
Where the charge
against the delinquent employee is of a grave nature which involves complicated
questions of law and fact, it is desirable to stay the departmental proceedings
till conclusion of the criminal case. In case the criminal case does not proceed
expeditiously, the departmental proceedings cannot be kept in abeyance for ever
and may be resumed and proceeded with so as to conclude the same at an early
The purpose is that
if the employee is found not guilty his cause may be vindicated, and in case he
is found guilty, administration may get rid of him at the earliest. However, while
deciding the case, taking into consideration the facts involved therein, the
"Since the facts
and the evidence in both the proceedings, namely, the departmental proceedings
and the criminal case were the same without there being any iota of difference,
the distinction, which is usually drawn as between the departmental proceedings
and the criminal case on the basis of approach and burden of proof, would not
be applicable to the instant case."
State Bank of India & Ors. v. R.B. Sharma, AIR 2004 SC 4144, same view has
been reiterated observing that both proceedings can be held simultaneously, except
where departmental proceedings in criminal case are based on same set of facts and
evidence in both the proceedings is common. The Court observed as under:-
"The purpose of
departmental inquiry and of prosecution are to put a distinct aspect. Criminal prosecution
is launched for an offence for violation of duty. The offender owes to the
society, or for breach of which law has provided that the offender shall make
satisfaction to the public. So crime is an act of commission in violation of
law or of omission of a public duty. The departmental inquiry is to maintain discipline
in the service and efficiency of public service."
deciding the said case a very heavy reliance has been placed upon the earlier judgment
of this Court in Depot Manager, Andhra Pradesh State Road Transport Corporation
v. Mohd Yousuf Miya & Ors., AIR 1997 SC 2232, wherein it has been held that
both proceedings can be held simultaneously unless the gravity of the charges demand
staying the disciplinary proceedings till the trial is concluded as complicated
questions of fact and law are involved in that case.
similar view has been reiterated by this Court in Senior Superintendent of Post
Offices v. A. Gopalan, AIR 1999 SC 1514; Kendriya Vidyalaya Sangathan & Ors.
v. T. Srinivas, AIR 2004 SC 4127; Krishnakali Tea Estate v. Akhil Bhartiya Chah
Mazdoor Sangh & Anr., (2004) 8 SCC 200; Commissioner of Police Delhi v.
Narendra Singh, AIR 2006 SC 1800; South Bengal State Transport Corporation v.
Span Kumar Mitra & Ors., (2006) 2 SCC 584; and Punjab Water Supply &
Sewerage Board v. Ram Sajivan, (2007) 9 SCC 86.
Union of India & Ors. v. Naman Singh Shekhawat, (2008) 4 SCC 1, this Court
held that departmental proceeding can be initiated after acquittal by the Criminal
Court. However, the departmental proceeding should be initiated provided the department
intended to adduce any evidence which could prove the charges against the delinquent
officer. Therefore, initiation of proceeding should be bona fide and must be
reasonable and fair.
Pandiyan Roadways Corpn. Ltd. v. N. Balakrishnan, (2007) 9 SCC 755, this Court re-considered
the issue taking into account all earlier judgments and observed as under:
"There are evidently
two lines of decisions of this Court operating in the field. One being the cases
which would come within the purview of Capt. M. Paul Anthony v. Bharat Gold
Mines Ltd (supra), and G.M. Tank v. State of Gujarat, (2006) 5 SCC C446.
However, the second
line of decisions show that an honourable acquittal in the criminal case itself
may not be held to be determinative in respect of order of punishment meted out
to the delinquent officer, inter alia, when:
(i) the order of
acquittal has not been passed on the same set of facts or same set of evidence;
(ii) the effect of difference
in the standard of proof in a criminal trial and disciplinary proceeding has not
been considered (See: Commr. of Police v. Narender Singh, (supra) or; where the
delinquent officer was charged with something more than the subject-matter of the
criminal case and/or covered by a decision of the civil court (See: G.M. Tank, (supra),
Jasbir Singh v. Punjab & Sind Bank, (2007) 1 SCC 566; and Noida Entrepreneurs'
Assn. v. Noida, (2007) 10 SCC 385, para 18)...........
We may not be
understood to have laid down a law that in all such circumstances the decision
of the civil court or the criminal court would be binding on the disciplinary
authorities as this Court in a large number of decisions points out that the same
would depend upon other factors as well. (See: e.g. Krishnakali Tea Estate (supra);
and Manager, Reserve Bank of India v. S. Mani, (2005) 5 SCC 100). . Each case
is, therefore, required to be considered on its own facts."(See also: Ram
Tawekya Sharma v. State of Bihar & Ors., (2008) 8 SCC 261; and Roop Singh Negi
v. Punjab National Bank & Ors., (2009) 2 SCC 570).
there can be no doubt regarding the settled legal proposition that as the
standard of proof in both the proceedings is quite different, and the termination
is not based on mere conviction of an employee in a criminal case, the
acquittal of the employee in criminal case cannot be the basis of taking away
the effect of departmental proceedings. Nor can such an action of the
department be termed as double jeopardy.
The judgment of this
Court in Capt. M. Paul Anthony (supra) does not lay down the law of universal application.
Facts, charges and nature of evidence etc. involved in an individual case would
determine as to whether decision of acquittal would have any bearing on the
findings recorded in the domestic enquiry.
LOSS OF CONFIDENCE
the employer has lost the confidence in the employee and the bona fide loss of
confidence is affirmed, the order of punishment must be considered to be immune
from challenge, for the reason that discharging the office of trust and
confidence requires absolute integrity, and in a case of loss of confidence,
reinstatement cannot be directed. (Vide: Air India Corporation Bombay v. V.A. Ravellow,
AIR 1972 SC 1343; Francis Kalein & Co. Pvt. Ltd. v. Their Workmen, AIR 1971
SC 2414; and Bharat Heavy Electricals Ltd. v. M. Chandrashekhar Reddy &
Ors., AIR 2005 SC 2769). 1
Agrawal & Ors. v. Factory Manager, Gwaliar Sugar Co. Ltd., AIR 2001 SC
3645, this Court laid down the test for loss of confidence to find out as to whether
there was bona fide loss of confidence in the employee, observing that, (i) the
workman is holding the position of trust and confidence; (ii) by abusing such position,
he commits act which results in forfeiting the same; and (iii) to continue him
in service/establishment would be embarrassing and inconvenient to the
employer, or would be detrimental to the discipline or security of the
Loss of confidence cannot
be subjective, based upon the mind of the management. Objective facts which
would lead to a definite inference of apprehension in the mind of the management,
regarding trustworthiness or reliability of the employee, must be alleged and
proved.(See also: Sudhir Vishnu Panvalkar v. Bank of India, AIR 1997 SC 2249).
State Bank of India & Anr. v. Bela Bagchi & Ors., AIR 2005 SC 3272, this
Court repelled the contention that even if by the misconduct of the employee
the employer does not suffer any financial loss, he can be removed from service
in a case of loss of confidence. While deciding the said case, reliance has been
placed upon its earlier 1judgment in Disciplinary Authority-cum-Regional Manager
v. Nikunja Bihari Patnaik, (1996) 9 SCC 69.
employer is not bound to keep an employee in service with whom relations have reached
the point of complete loss of confidence/faith between the two. (Vide: Binny
Ltd. v. Their Workmen & Anr., AIR 1972 SC 1975; The Binny Ltd. v. Their
Workmen, AIR 1973 SC 1403; Anil Kumar Chakraborty & Anr. v. M/s.
Saraswatipur Tea Company Ltd. & Ors., AIR 1982 SC 1062; Chandu Lal v. The Management
of M/s. Pan American World Airways Inc., AIR 1985 SC 1128; Kamal Kishore Lakshman
v. Management of M/s. Pan American World Airways Inc. & Ors., AIR 1987 SC
229; and M/s. Pearlite Liners Pvt. Ltd. v. Manorama Sirsi, AIR 2004 SC 1373).
In Indian Airlines
Ltd. v. Prabha D. Kanan, AIR 2007 SC 548, while dealing with the similar issue this
Court held that "loss of confidence cannot be subjective but there must be
objective facts which would lead to a definite inference of apprehension in the
mind of the employer regarding trustworthiness of the employee and which must
be alleged and proved."
In case of theft, the
quantum of theft is not important and what is important is the loss of
confidence of employer in employee. (Vide: A.P. SRTC v. Raghuda Shiva Sankar
Prasad, AIR 2007 SC 152).
instant case requires to be examined in the light of the aforesaid settled legal
proposition and keeping in view that judicial review is concerned primarily
with the decision making process and not the decision itself. More so, it is a
settled legal proposition that in a case of misconduct of grave nature like
corruption, theft, no punishment other than the dismissal may be appropriate. (Vide:
Pandiyan Roadways Corpn. Ltd. (supra); and U.P. State Road Transport
Corporation v. Suresh Chand Sharma, (2010) 6 SCC 555).
domestic enquiry found the delinquent employee guilty of all the charges. The enquiry
report was accepted by the Disciplinary Authority and there is no grievance on
behalf of the respondent-workman that statutory provisions/principles of natural
justice have not been observed while conducting the enquiry.
The Disciplinary Authority
imposed the punishment of dismissal from service which cannot be held to be disproportionate
or non-commensurate to the delinquency. The Labour Court after reconsidering
the whole case came to the conclusion that the enquiry has been conducted
strictly in accordance with law in a fair manner and charges have rightly been
proved against the delinquent employee.
the difference in the standard of proof required in domestic enquiry, vis-`-vis
that applicable to a criminal case, the Labour Court repelled the argument of
respondent-workman that once he stood acquitted he was entitled for all reliefs
including re-instatement and back wages. The learned Single Judge as well as
the Division Bench had simply decided the case taking into consideration the acquittal
of delinquent employee and nothing else.
view of the aforesaid settled legal propositions that there is no finding by the
High Court that the charges leveled in the domestic enquiry had been the same
which were in the criminal trial; the witnesses had been the same; there were no
additional or extra witnesses; and without considering the gravity of the
charge, we are of the view that the award of the Labour Court did not warrant
any interference. Be that as it may, the learned Single Judge had granted
relief to the delinquent employee which was not challenged by the present
appellant by filing writ appeal. Therefore, the delinquent employee is entitled
for the said relief.
view of the above, we dispose of the appeal holding that the delinquent employee
shall be entitled only to the relief granted by the writ court and the judgment
and order of the court in writ appeal is set aside. The benefit of the judgment
of the learned Single Judge may be made available to the delinquent employee
within a period of 4 months from the date of production of the certified copy
of the order before the appellant. There shall be no order as to costs.
(Dr. B.S. CHAUHAN)