Full Judgment Text
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PETITIONER:
CAPT.M. PAUL ANTHONY ..
Vs.
RESPONDENT:
BHARAT GOLD MINES LTD. & ANR.
DATE OF JUDGMENT: 30/03/1999
BENCH:
S. Saghir Ahmad, & V N Khare.
JUDGMENT:
S.
SAGHIR AHMAD, J.
Leave granted.
Whether departmental proceedings and proceedings in a
criminal case launched on the basis of the same set of facts
can be continued simultaneously is a question which crops up
perennially in service matters and has once again arisen in
this case in the following cirucmstances.
Bharat Gold Mines Ltd. (Respondent No. 1) is a Govt.
undertaking at Kolar Gold Fields in Karnataka, where the
appellant was appointed as a Security Officer on 31.10.1983.
On 2nd of June, 1985, a raid was conducted by the
Superintendent of Police at the house of the appellant from
where a mining sponge gold ball weighing 4.5 grams and 1276
grams of ’gold bearing sand’ were recovered. Thereafter, on
the same day, a First Information Report was lodged at the
Police Station and a criminal case was registered against
the appellant, who was placed under suspension on 3.6.1985.
The next day, namely, on 4th of June, 1985, a charge-sheet
was issued proposing a regular departmental inquiry with
regard to the recovery of the above articles from his house.
On 11th of June, 1985, the appellant made a representation
to the Disciplinary Authority denying the allegations made
against him in the charge sheet and pleaded that the entire
episode was a concoction. He prayed that the departmental
proceedings initiated against him may be dropped or may, in
the alternative, be postponed till the conclusion of the
criminal proceedings against him on the basis of the First
Information Report lodged against him at the Police Station
on 2.6.1985. The representation was rejected on 19.6.1985
and the appellant was informed that the disciplinary
proceedings would be held against him on 1.7.1985.
In the meantime, the appellant filed Writ Petition No.
10842 of 1985 in the Karnataka High Court for a direction to
restrain the respondents from proceeding with the
disciplinary inquiry till the conclusion of the criminal
case as the appellant’s defence was likely to be prejudiced.
This Writ Petition was disposed of by the High Court on
19.8.1985 and a direction was issued to the respondents to
consider and dispose of the appellant’s appeal filed against
the order of suspension but liberty was given to the
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respondents to defer the disciplinary proceedings if it was
found expedient so to do. The respondents did not defer the
departmental proceedings and continued the proceedings which
the appellant could not attend on account of his ill-health
and financial difficulties which compelled him to shift to
his home-town in Kerala. The respondents were informed by a
number of letters supported by medical certificates about
his illness with a request for staying the departmental
proceedings and await the result of the criminal case. But
the Inquiry Officer rejected the request and recorded his
findings on 10.5.1986 holding the appellant guilty. These
findings were accepted by the Disciplinary Authority and by
order dated 7th June 1986, the appellant was dismissed from
service.
On 3rd of February, 1987, judgment in the criminal
case was pronounced and the appellant was acquitted with the
categorical findings that the prosecution had failed to
establish its case. This judgment was communicated by the
appellant to the respondents on 12.2.1987 with a request
that he may be reinstated, but respondents, by their letter
dated 3.3.1987, rejected the request on the ground that the
appellant had already been dismissed from service on the
completion of the departmental inquiry which was conducted
independently of the criminal case and, therefore, the
judgment passed by the Magistrate was of no consequence.
The order of dismissal passed by the respondents was
challenged in a departmental appeal which was rejected by
the Appellate Authority on 22.7.1987.
It was, at this stage, that the appellant approached
the High Court through a Writ Petition under Article 226 of
the Constitution challenging the validity of the order of
dismissal on various grounds, including that the
departmental proceedings based on the same set of facts on
which the criminal case was launched against him, ought to
have been stayed awaiting the result of the criminal case.
It was also pointed out that since the appellant had already
been acquitted and the prosecution case against the
appellant based on the "raid and recovery" which also
constituted the basis of the departmental proceedings, had
not been found to be true, he was entitled to be reinstated
in service.
The Writ Petition was allowed by a Single Judge of the
High Court on 26.9.1995 with the finding that the
departmental proceedings and the criminal case being based
on the same set of facts, departmental proceedings should
have been stayed till the result of the criminal case and
since in the criminal case the appellant had already been
acquitted and the prosecution case was not found
established, the respondents could not legally refuse
reinstatement or the consequent back-wages to the appellant.
While directing reinstatement of the appellant, the High
Court gave liberty to respondents to initiate fresh
proceedings against the appellant after perusing the
judgment passed in the criminal case.
This judgment was, however, set aside by the Division
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Bench on 17th September, 1997 in a letters patent appeal
filed by the respondents. It is this judgment which is
under appeal before us.
Learned counsel for the appellant has contended that
the respondents having themselves launched the criminal case
were not justified in proceeding with the departmental
inquiry which was based on the same set of facts and ought
to have stayed those proceedings till the conclusion of the
criminal case. Since the basis of action in both the cases,
namely, the departmental proceedings and the criminal case,
was the raid conducted by the Superintendent of Police at
the residence of the appellant from where a recovery was
also allegedly made, the departmental proceedings were
liable to be stayed as the facts and the evidence in both
the proceedings were common. In these circumstances, the
appellant, it is contended, was justified in requesting the
respondents to stay the departmental proceedings and on the
refusal of the respondents to stay the proceedings, the
appellant was justified in not participating in those
proceedings as his defence was likely to be prejudiced. It
is also contended that the appellant was ill and for that
reason also the departmental proceedings ought to have been
stayed till he had completely recovered. It is also
submitted that the appellant who had been placed under
suspension was not being paid the Subsistence Allowance with
the result that he fell into serious financial difficulties
and could not undertake any journey from his home-town in
Kerala to Kolar Gold Fields in Karnataka for participating
in the departmental proceedings. The Division Bench, it is
contended, was not justified in interfering with the
judgment passed by the Single Judge who had found it as a
positive fact that the departmental proceedings and the
criminal case were based on the same set of facts and the
evidence in both the cases was common.
Learned counsel for the respondents has, however,
contended that the respondents were under no obligation to
stay the departmental proceedings and await the result of
the criminal case as there was no legal bar in holding the
departmental proceedings simultaneously with the proceedings
in the criminal case, particularly as the level of proof in
both the proceedings is different and the purpose with which
the departmental proceedings are conducted is also not
identical with the purpose with which the criminal case is
prosecuted for an offence committed by the employee.
This question, as observed earlier, is of a perennial
nature and has arisen more often than not in spite of the
judicial pronouncements, specially by this Court, having
settled the question and provided the answer. Still, the
problem is raised either by the employer or by the employee
in one or the other form. In the instant case, the order of
dismissal had already been passed before the decision of the
criminal case which ultimately resulted in the acquittal of
the appellant. Whether the acquittal coupled with other
circumstances, specially ex-parte proceedings, of the case,
will have the effect of vitiating the departmental
proccedings or the order of dismissal passed against the
appellant, is the question which is to be considered in this
appeal.
As we shall presently see, there is a consensus of
judicial opinion amongst the High Courts whose decisions we
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do not intend to refer in this case, and the various
pronouncements of this Court, which shall be copiously
referred to, on the basic principle that proceedings in a
criminal case and the departmental proceedings can proceed
simultaneously with a little exception. 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 the 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
doubts. The little exception may be where the departmental
procedings and the criminal case are based on the same set
of facts and the evidence in both the proceedings is common
without there being a variance.
The first decision of this Court on the question was
rendered in Delhi Cloth & General Mills Ltd. vs. Kushal
Bhan 1960 (3) SCR 227 = AIR 1960 SC 806 = 1960 LLJ 520 (SC),
in which it was observed as under :
"It is true that very often employers stay
enquiries pending the decision of the criminal
trial courts and that is fair; but we cannot say
that principles of natural justice require that an
employer must wait for the decision at least of
the criminal trial court before taking action
against an employee. In Bimal Kanta Mukherjee vs.
M/s Newsman’s Printing Works 1956 LAC 188, this
was the view taken by the Labour Appellate
Tribunal. We may, however, add that if the case
is of a grave nature or involves questions of fact
or law, which are not simple, it would be
advisable for the employer to await the decision
of the trial court, so that the defence of the
employee in the criminal case may not be
prejudiced."
This was followed by Tata Oil Mills Company Ltd. vs.
Workmen 1964(7) SCR 555 = AIR 1965 SC 155, in which it was,
inter alia, laid down as under :
"There is yet another point which remains to be
considered. The Industrial Tribunal appears to
have taken the view that since criminal
proceedings had been started against Raghavan, the
domestic enquiry should have been stayed pending
the final disposal of the said criminal
proceedings. As this Court has held in the Delhi
Cloth and General Mills Ltd. vs. Kushal Bhan, it
is desirable that if the incident giving rise to a
charge framed against a workman in a domestic
enquiry is being tried in a criminal court, the
employer should stay the domestic enquiry pending
the final disposal of the criminal case."
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The question cropped up again with a new angle in Jang
Bahadur Singh vs. Baij Nath Tiwari 1969 (1) SCR 134 = AIR
1969 SC 30, as it was contended that initiation of
disciplinary proceedings during the pendency of a criminal
case on the same facts amounted to contempt of court. This
plea was rejected and the Court observed as under:
"The issue in the disciplinary proceedings is
whether the employee is guilty of the charges on
which it is proposed to take action against him.
The same issue may arise for decision in a civil
or criminal proceeding pending in a court. But
the pendency of the court proceeding does not bar
the taking of disciplinary action. The power of
taking such action is vested in the disciplinary
authority. The civil or criminal court has no
such power. The initiation and continuation of
disciplinary proceedings in good faith is not
calculated to obstruct or interfere with the
course of justice in the pending court proceeding.
The employee is free to move the court for an
order restraining the continuance of the
disciplinary proceedings. If he obtains a stay
order, a wilful violation of the order would of
course amount to contempt of court. In the
absence of a stay order the disciplinary authority
is free to exercise its lawful powers."
These decisions indicate that though it would not be
wrong in conducting two parallel proceedings, one by way of
disciplinary action and the other in the criminal court,
still it would be desirable to stay the domestic inquiry if
the incident giving rise to a charge framed against the
employee in a domestic inquiry is being tried in a criminal
court. The case law was reviewed by this Court in
Kusheshwar Dubey vs. M/s Bharat Coking Coal Ltd. & Ors.
1988 (4) SCC 319 = 1988 Supp. (2) SCR 821 = AIR 1988 SC
2118 and it was laid down as under :
"The view expressed in the three cases of this
Court seem to support the position that while
there could be no legal bar for simultaneous
proceedings being taken, yet, there may be cases
where it would be appropriate to defer
disciplinary proceedings awaiting disposal of the
criminal case. In the latter class of cases, it
would be open to the delinquent employee to seek
such an order of stay or injunction from the
court. Whether in the facts and circumstances of
particular case there should or should not be such
simultaneity of the proceedings would then receive
judicial consideration and the court will decide
in the given circumstances of particular case as
to whether the disciplinary proceedings should be
interdicted, pending criminal trial. As we have
already stated that it is neither possible nor
advisable to evolve a hard and fast, strait-jacket
formula valid for all cases and of general
application without regard to the particularities
of the individual situation. For the disposal of
the present case, we do not think it necessary to
say anything more, particularly when we do not
intend to lay down any general guideline."
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The Court further observed as under :
"In the instant case, the criminal action and the
disciplinary proceedings are grounded upon the
same set of facts. We are of the view that the
disciplinary proceedings should have been stayed
and the High Court was not right in interfering
with the trial court’s order of injunction which
had been affirmed in appeal.
" Then came the decision in Nelson Motis vs. Union of
India & Ors. (1992) 4 SCC 711 = 1992 Supp.(1) SCR 325 = AIR
1992 SC 1981, which laid down that the disciplinary
proceedings can be legally continued even where the employee
is acquitted in a criminal case as the nature and proof
required in a criminal case are different from those in the
departmental proceedings. Besides, the Court found that the
acts which led to the initiation of departmental proceedings
were not exactly the same which were the subject matter of
the criminal case. The question was not considered in
detail. The Court observed :
"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 proceedings. Besides, the Tribunal
has pointed out that the acts which led to the
initiation of the departmenal disciplinary
proceeding were not exactly the same which were
the subject matter of the criminal case.
(Emphasis supplied)
The entire case law was reviewed once again by this
Court in State of Rajasthan vs. B.K. Meena & Ors. (1996)
6 SCC 417 = AIR 1997 SC 13 = 1997 (1) LLJ 746 (SC), wherein
it was laid down 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 situation, it may not be
’desirable’, ’advisable’ or ’appropriate’ to
proceed with the disciplinary enquiry when a
criminal case is pending on identical charge. The
staying of disciplinary proceedings, it is
emphasised, is a matter to be determined having
regard to the facts and circumstances of a given
case and that no hard and fast rules can be
enunciated in that behalf. 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
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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. The
ground indicated in D.C.M. (AIR 1960 SC 806) and
Tata Oil Mills (AIR 1965 SC 155) is also not an
invariable rule. It is only a factor which will
go into the scales while judging the advisability
or desirability of staying the disciplinary
proceedings. 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 are involved. They get bogged down on
one or the other ground. They hardly ever reach a
prompt conclusion. That is the reality in spite
of repeated advice and admonitions from this Court
and the High Courts. 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 inquired 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 the 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 earlist 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. While it is not
possible to enumerate the various factors, for and
against the stay of disciplinary proceedings, we
found it necesasry to emphasise some of the
important considerations in view of the fact that
very often the disciplinary proceedings are being
stayed for long periods pending criminal
proceedings. Stay of disciplinary proceedings
cannot be, and should not be, a matter of course.
All the relevant factors, for and against, should
be weighed and a decision taken keeping in view of
the various principles laid down in the decisions
referred to above."
This decision has gone two steps further to the
earlier decisions by providing :
1. The ’advisability’, ’desirability’ or
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’propriety’ of staying the departmental
proceedings "go into the scales while judging the
advisability or desirability of staying the
disciplinary proceedings" merely as one of the
factors which cannot be considered in isolation of
other circumstances of the case. But the charges
in the criminal case must, in any case, be of a
grave and serious nature involving complicated
questions of fact and law.
(2) One of the contending considerations would be
that the disciplinary enquiry cannot -- and should
not be -- delayed unduly. If the criminal case is
unduly delayed, that may itself be a good ground
for going ahead with the disciplinary enquiry even
though the disciplinary proceedings were held over
at an earlier stage. It would not be in the
interests of administration that persons accused
of serious misdemeanour should be continued in
office indefinitely awaiting the result of
criminal proceedings.
In another case, namely, Depot Manager, Andhra Pradesh
State Road Transport Corporation vs. Mohd. Yousuf Miyan
(1997) 2 SCC 699 = AIR 1997 SC 2232, again it was held that
there is no bar to proceed simultaneously with the
departmental inquiry and trial of a criminal case unless the
charge in the criminal case is of a grave nature involving
complicated questions of fact and law.
The conclusions which are deducible from various
decisions of this Court referred to above are :
(i) Departmental proceedings and proceedings in a
criminal case can proceed simultaneously as there is no bar
in their being conducted simultaneously, though separately.
(ii) If the departmental proceedings and the criminal
case are based on identical and similar set of facts and the
charge in the criminal case against the delinquent employee
is of a grave nature which involves complicated questions of
law and fact, it would be desirable to stay the departmental
proceedings till the conclusion of the criminal case.
(iii) Whether the nature of a charge in a criminal
case is grave and whether complicated questions of fact and
law are involved in that case, will depend upon the nature
of offence, the nature of the case launched against the
employee on the basis of evidence and material collected
against him during investigation or as reflected in the
charge sheet.
(iv) The factors mentioned at (ii) and (iii) above
cannot be considered in isolation to stay the Departmental
proceedings but due regard has to be given to the fact that
the departmental proceedings cannot be unduly delayed.
(v) If the criminal case does not proceed or its
disposal is being unduly delayed, the departmental
proceedings, even if they were stayed on account of the
pendency of the criminal case, can be resumed and proceeded
with so as to conclude them at an early date, so that if the
employee is found not guilty his honour may be vindicated
and in case he is found guilty, administration may get rid
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of him at the earliest.
In the instant case, the Superintendent of Police had
raided the residential premises of the appellant and had
recovered a mining sponge gold ball weighing 4.5 grams and
1276 grams of ’gold bearing sand’. It was on this basis
that criminal case was launched against him. On the same
set of facts, constituting the raid and recovery,
departmental proceedings were initiated against the apellant
as the "recovery" was treated to be a ’misconduct.’ On the
service of the charge sheet, the appellant raised an
objection that the departmental proceedings may be stayed as
the basis of these proceedings was the raid conducted at his
residence on which basis a criminal case had already been
launched against him. He requested that the decision of the
criminal case may be awaited, but his request was turned
down. The request made a second time for that purpose also
met the same fate. When the appellant approached the High
Court, liberty was given to the respondents to stay the
departmental proceedings if they considered it appropriate
but they were directed to dispose of the appellant’s appeal
against the order by which he was placed under suspension.
The order of the High Court had no effect on the respondents
and they decided to continue with the departmental
proceedings which could not be attended by the appellant as
he informed the Inquiry Officer that he was ill. His
request for adjournment of the departmental proceedings on
that ground was not acceded to and the proceedings continued
ex-parte against him. He was ultimately found guilty of the
charges and was dismissed from service.
Learned counsel for the appellant also contended that
during the period of suspension the respondents had not paid
him the Subsistence Allowance with the result that he could
not undertake a journey from his home-town in Kerala to
Kolar Gold Fields in Karnataka where the departmental
proceedings were being held. This plea has not been
accepted by the High Court on the ground that it was not
raised before the Inquiry Officer and it was not pleaded
before him that it was on account of non- payment of
Subsistence Allowance that the appellant could not go to
Kolar Gold Fields for participating in the disciplinary
proceedings.
Before us, it is not disputed on behalf of the
respondents nor was it disputed by them before the High
Court, that Subsistence Allowance was not paid to the
appellant while the proceedings against him were being
conducted at the departmental level.
To place an employee under suspension is an
unqualified right of the employer. This right is conceded
to the employer in service jurisprudence everywhere. It has
even received statutory recognition under service rules
framed by various authorities, including Govt. of India and
the State Governments. (See: for example, Rule 10 of
Central Civil Services (Classification, Control & Appeal)
Rules. Even under the General Clauses Act, this right is
conceded to the employer by Section 16 which, inter alia,
provides that power to appoint includes power to suspend or
dismiss.
The order of suspension does not put an end to an
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employee’s service and he continues to be a member of the
service though he is not permitted to work and is paid only
Subsistence Allowance which is less than his salary. (See:
State of M.P. vs. State of Maharashtra, 1977 (2) SCR 555 =
(1977) 2 SCC 288 = AIR 1977 SC 1466).
Service Rules also usually provide for payment of
salary at a reduced rate during the period of suspension.
(See: Fundamental Rule 53). This constitutes the
"Subsistence Allowance". If there is no provision in the
Rules applicable to a particular class of service for
payment of salary at a reduced rate, the employer would be
liable to pay full salary even during the period of
suspension.
Exercise of right to suspend an employee may be
justified on facts of a particular case. Instances,
however, are not rare where officers have been found to be
afflicted by "suspension syndrome" and the employees have
been found to be placed under suspension just for nothing.
It is their irritability rather than the employee’s trivial
lapse which has often resulted in suspension. Suspension
notwithstanding, non-payment of Subsistence Allowance is an
inhuman act which has an unpropitious effect on the life of
an employee. When the employee is placed under suspension,
he is demobilised and the salary is also paid to him at a
reduced rate under the nick name of ’Subsistence Allowance’,
so that the employee may sustain himself. This Court, in
O.P. Gupta vs. Union of India & Ors. (1987) 4 SCC 328
made the following observations with regard to Subsistence
Allowance :
"An order of suspension of a government servant
does not put an end to his service under the
government. He continues to be a member of the
service in spite of the order of suspension. The
real effect of suspension as explained by this
Court in Khem Chand v. Union of India is that he
continues to be a member of the government service
but is not permitted to work and further during
the period of suspension he is paid only some
allowance -- generally called subsistence
allowance -- which is normally less than the
salary instead of the pay and allowances he would
have been entitled to if he had not been
suspended. There is no doubt that an order of
suspension, unless the departmental inquiry is
concluded within a reasonable time, affects a
government servant injuriously. The very
expression ’subsistence allowance’ has an
undeniable penal significance. The dictionary
meaning of the word ’Subsist’ as given in Shorter
Oxford English Dictionary, Vol.II at p. 2171 is
"to remain alive as on food; to continue to
exist". "Subsistence" means -- means of
supporting life, especially a minimum livelihood."
(Emphasis supplied)
If, therefore, even that amount is not paid, then the
very object of paying the reduced salary to the employee
during the period of suspension would be frustrated. The
act of non-payment of Subsistence Allowance can be likened
to slow-poisoning as the employee, if not permitted to
sustain himself on account of non-payment of Subsistence
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Allowance, would gradually starve himself to death.
On joining Govt. service, a person does not mortgage
or barter away his basic rights as a human being, including
his fundamental rights, in favour of the Govt. The Govt.,
only because it has the power to appoint does not become the
master of the body and soul of the employee. The Govt. by
providing job opportunities to its citizens only fulfils its
obligations under the Constitution, including the Directive
Principles of the State Policy. The employee, on taking up
an employment only agrees to subject himself to the
regulatory measures concerning his service. His association
with the Government or any other employer, like
Instrumentalities of the Govt. or Statutory or Autonomous
Corporations etc., is regulated by the terms of contract of
service or Service Rules made by the Central or the State
Govt. under the Proviso to Article 309 of the Constitution
or other Statutory Rules including Certified Standing
Orders. The fundamental rights, including the Right to Life
under Article 21 of the Constitution or the basic human
rights are not surrendered by the employee. The provision
for payment of Subsistence Allowance made in the Service
Rules only ensures non-violation of the right to life of the
employee. That was the reason why this Court in State of
Maharashtra vs. Chanderbhan 1983(3) SCR 337 = 1983 (3) SCC
387 = AIR 1983 SC 803 struck down a Service Rule which
provided for payment of a nominal amount of Rupee one as
Subsistence Allowance to an employee placed under
suspension. This decision was followed in Fakirbhai
Fulabhai Solanki vs. Presiding Officer & Anr. (1986) 3 SCC
131 = 1986(2) SCR 1059 = AIR 1986 SC 1168 and it was held in
that case that if an employee could not attend the
departmental proceedings on account of financial
stringencies caused by non-payment of Subsistence Allowance,
and thereby could not undertake a journey away from his home
to attend the departmental proceedings, the order of
punishment, including the whole proceedings would stand
vitiated. For this purpose, reliance was also placed on an
earlier decision in Ghanshyam Dass Shrivastva vs. State of
Madhya Pradesh (1973) 1 SCC 656 = AIR 1973 SC 1183.
The question whether the appellant was unable to go to
Kolar Gold Fields to participate in the inquiry proceedings
on account of non-payment of Subsistence Allowance may not
have been raised before the Inquiry Officer, but it was
positively raised before the High Court and has also been
raised before us. Since it is not disputed that the
Subsistence Allowance was not paid to the appellant during
the pendency of the departmental proceedings, we have to
take strong notice of it, particularly as it is not
suggested by the respondents that the appellant had any
other source of income.
Since in the instant case the appellant was not
provided any Subsistence Allowance during the period of
suspension and the adjournment prayed for by him on account
of his illness, duly supported by medical certificates, was
refused resulting in ex-parte proceedings against him, we
are of the opinion that the appellant has been punished in
total violation of the principles of natural justice and he
was literally not afforded any opportunity of hearing.
Moreover, as pleaded by the appellant before the High Court
as also before us that on account of his penury occasioned
by non-payment of Subsistence Allowance, he could not
undertake a journey to attend the disciplinary proceedings,
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the findings recorded by the Inquiry Officer at such
proceedings, which were held ex-parte, stand vitiated.
There is yet another reason for discarding the whole
of the case of the respondents. As pointed out earlier, the
criminal case as also the departmental proceedings were
based on identical set of facts, namely, ’the raid conducted
at the appellant’s residence and recovery of incriminating
articles therefrom.’ The findings recorded by the Inquiry
Officer, a copy of which has been placed before us, indicate
that the charges framed against the appellant were sought to
be proved by Police Officers and Panch witnesses, who had
raided the house of the appellant and had effected recovery.
They were the only witnesses examined by the Inquiry Officer
and the Inquiry Officer, relying upon their statements, came
to the conclusion that the charges were established against
the appellant. The same witnesses were examined in the
criminal case but the court, on a consideration of the
entire evidence, came to the conclusion that no search was
conducted nor was any recovery made from the residence of
the appellant. The whole case of the prosecution was thrown
out and the appellant was acquitted. In this situation,
therefore, where the appellant is acquitted by a judicial
pronouncement with the finding that the "raid and recovery"
at the residence of the appellant were not proved, it would
be unjust, unfair and rather oppressive to allow the
findings recorded at the ex- parte departmental proceedings,
to stand.
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.
For the reasons stated above, the appeal is allowed,
the impugned judgment passed by the Division Bench of the
High Court is set aside and that of the learned Single
Judge, in so far as it purports to allow the Writ Petition,
is upheld. The learned Single Judge has also given liberty
to the respondents to initiate fresh disciplinary
proceedings. In the peculiar citcumstances of the case,
specially having regard to the fact that the appellant is
undergoing this agony since 1985 despite having been
acquitted by the criminal court in 1987, we would not direct
any fresh departmental inquiry to be instituted against him
on the same set of facts. The appellant shall be reinstated
forthwith on the post of Security Officer and shall also be
paid entire arrears of salary, together with all allowances
from the date of suspension till his reinstatement, within
three months. The appellant would also be entitled to his
cost which is quantified as Rs.15,000/-.