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Vijoy Prakash, an assistant at the New India Assurance Company Limited, was accused of demanding and accepting a bribe for securing a job for a relative. The C.B.I. conducted an investigation but did not prosecute him, citing insufficient evidence to meet the criminal standard of 'beyond reasonable doubt'. However, the company conducted its own disciplinary proceedings under the General Insurance (Conduct, Discipline and Appeal) Rules, 1975, and found him guilty, leading to a salary reduction. Prakash challenged this decision in the High Court, arguing that the non-prosecution by the C.B.I. should invalidate the company's disciplinary action. The court dismissed his petition, emphasizing that departmental proceedings and criminal prosecutions serve different purposes and have different standards of proof.
Appeal Details
Counselvise Citation
[2009] 140 COUNSELVISE.COM (IT) 798490 (HC-PATNA)
Assessee PAN
Bench
Appeal Number
CRN Number
Appellant
Respondent
Appeal Type
Others
Pronouncement Date
16-07-2009
Assessment Year
misc
Judgement Text
"IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.9985 of 2003 Vijoy Prakash, Son of Late Bhanu Prakash, at present posted as Assistant, New India Assurance Company Limited, Division-II, Dak Bunglow Road, Patna. -Petitioner. VERSUS 1. The New India Assurance Company Limited, Head Office, 87, Mahatma Gandhi Road, Mumbai, through its Chairman-cum-Managing Director. 2. The Chairman-cum-Managing Director, The New India Assurance Company Limited, Head Office, 87, Mahatma Gandhi Road, Mumbai. 3. The General Manager, The New India Assurance Company Limited, Head Office, 87, Mahatma Gandhi Road, Mumbai 4. The Regional Manager, The New India Assurance Company Limited, B.S.F.C. Building, Fraser Road, Patna-1. 5. The Senior Divisional Manager, Divisional Office-I, Jawahar Lal Nehru Road, Red Cross Bhawan, 3rd Floor, North Gandhi Maidan, Patna. 6. The Divisional Manager, The New India Assurance Company Limited, Divisional Office No. II, Govind Bhawan, 2nd Floor, 122, New Dak Bunglow Road, Patna-1. 7. The Superintendent of Police, Central Bureau of Investigation, S.K. Singh Path, Bailey Road, Patna-1. -Respondents. ----------- For the Petitioner : Mr. Shyama Prasad Mukherji, Sr. Adv. Mr. Satish Kumar Agrawal, Adv. Mr. Shanti Pratap, Adv. Mr. A.K. Verma, Adv. For the Insurance Company : Mr. Rajiv Nayan Singh, Adv. For the C.B.I. : Mr. Bipin Kumar Singh, Adv. ------------ 07 16.07.2009 The present writ application has been filed by the petitioner for quashing the order dated 29.05.2003, passed by the Chairman-cum-Managing Director, New India Assurance Company Limited, by which the petitioner’s memorial/representation against the orders passed by the Disciplinary Authority and the Appellate Authority have been affirmed. By the aforesaid order the petitioner has been punished by reduction of his basic pay-scale salary by three stages. The only ground taken for quashing the aforesaid punishment is that the Central Bureau of Investigation after conducting investigation having 2 decided not to prosecute the petitioner, the departmental proceedings for the same charge could not be sustained. In order to appreciate the contention brief facts are relevant. At the relevant time the petitioner was an Assistant in the New India Assurance Company Limited in the Divisional Office No. 2 at Dak Bungalow Road, Patna. It appears that one Chansi Rai file an application before the Central Bureau of Investigation, Patna stating that the petitioner was asking for illegal gratification for securing job for the younger brother of the said Chansi Rai on class IV post in the New India Assurance Company Limited. It appears that pursuant to the aforesaid, a trap was laid in which Rs. 1000/- was found in possession of the petitioner which he could not explain and which allegedly was the illegal gratification given by the said Chansi Rai. A case was registered and investigation taken up by the Central Bureau of Investigation (C.B.I.), Patna. The C.B.I. had arrested the petitioner on 11.01.1996, pursuant to the complaint as aforesaid dated 10.01.1996. Petitioner being in custody for more than 48 hours was placed under suspension. C.B.I. having taken up investigation recommended initiation of departmental proceedings against the petitioner. Departmental proceedings were then initiated in terms of the General Insurance (Conduct, Discipline and Appeal) Rules, 1975 and petitioner was held guilty for demanding and accepting bribe of Rs. 1000/-, which was recovered from petitioner’s possession in presence of two witnesses, which he could not satisfactorily account for. This was found to be unbecoming of an Officer. The Disciplinary Authority after following 3 due procedure imposed penalty of reducing basic salary by three stages by its order dated 12.05.1999. The Appellate Authority rejected the appeal upholding the order passed by the Disciplinary Authority vide his order dated 16.11.1999. At this stage, the petitioner moved this Court in C.W.J.C. No. 11836 of 1999 praying for quashing the order passed by the Disciplinary Authority and the Appellate Authority respectively. While the said writ petition was pending, on 24.02.2000 C.B.I. submitted final report not sending up the petitioner for trial. It may be noted here that C.B.I. concluded that it was not possible to establish the criminal charges beyond reasonable doubt against the petitioner, as the transaction in question may not from part of the business transaction of the Company. However, C.B.I. categorically stated that the misdemeanour of the accused in entertaining the complainant and receiving the money are strong ground to constitute an act of misconduct and recommended departmental proceedings. It may be noted that the final form was accepted by the Special Judge, C.B.I., Patna. Petitioner, in view of the final form submitted and accepted by the Special Judge, C.B.I., Patna filed an application before the Regional Manager, the Appellate Authority to withdraw the penalty, which was refused and communicated to the petitioner vide letter dated 23.08.2001. It appears that when the aforesaid writ petition was taken up these facts were brought to the notice of this Court. This Court was of the view that as petitioner had the remedy of filing a memorial/representation before the Chairman-cum-Managing Director of the Company he should first avail the said remedy raising his grievance. The writ petition was 4 accordingly disposed of on 24.03.2003. Petitioner accordingly filed the memorial/representation on 07.04.2003 before the Chairman-cum- Managing Director of the Company, which has been rejected by order dated 25.09.2003 against which this writ petition is now filed. On behalf of petitioner, it is submitted on the strength of the decision of the Apex Court in the case of Captain M. Paul Anthony Vs. Bharat Gold Mines Limited & Another since reported in AIR 1999 Supreme Court 1416 also reported in (1999) 3 Supreme Court Cases 679. That the petitioner having been acquitted of criminal charges, the departmental proceedings became non est on the same set of facts. To the contrary, on behalf of respondents reliance was placed in the case of T.N.C.S. Corporation Limited & Ors. Vs. K. Meerabai since reported in (2006) 2 Supreme Court Cases 255. The first misconception, in view of this Court, that pervades in the petitioner’s case is that mere non-filing of charge sheet and its acceptance amounts acquittal. Acquittal can only be said to be after full-fledged trial and not otherwise because in other cases no charge at all has been levied against the delinquent. In my view, the correct principle which would apply here is that if the petitioner had a fair trial and an honourable acquittal, an acquittal not on technicalities, then depending on the facts it could be urged that acquittal in the criminal trial would inure to the benefit of the delinquent as against the departmental proceedings on the same set of facts. I am afraid that position does not prevail in the present case. In the present case, the C.B.I. report itself clearly mentions that conviction may not possible 5 because it may not be possible to establish the charge beyond reasonable doubt, as is required in a criminal trial. That what petitioner did was in course of business of the Assurance Company, which was a pre condition for getting a conviction on such a charge may not be possible to establish for seeking conviction. Accordingly, C.B.I. recommended departmental proceedings for misdemeanour and gross misconduct, which is the consistant finding of fact of Departmental Authority at all three stages. I may first refer to the judgment of the Apex Court in the case of P.S. Rajya Vs. State of Bihar since report in (1996) 9 Supreme Court Cases 1, in that case an Income Tax Officer was being prosecuted by C.B.I. for disproportionate assets. On the same charge departmental proceedings were initiated. In the departmental proceedings after various enquiries, valuation reports, the petitioner was exonerated. The petitioner on such exoneration in the departmental proceedings moved this Court for quashing the C.B.I. prosecution. This Court refused to interfere and that is how the matter was taken to the Apex Court. In paragraph 17 of the reports this is what the Apex Court notes :- “.......At the outset we may point out that the learned counsel for the respondent could not but accept the position that the standard of proof required to establish the guilt in a criminal case is far higher than the standard of proof required to establish the guilt in the 6 departmental proceedings. He also accepted that in the present case, the charge in the departmental proceedings and in the criminal proceedings is one and the same. He did not dispute the findings rendered in the departmental proceedings and the ultimate result of it. On these premises, if we proceed further then there is no difficulty in accepting the case of the appellant. For if the charge which is identical could not be established in a departmental proceedings and in view of the admitted discrepancies in the reports submitted by the valuers one wonders what is there further to proceed against the appellant in criminal proceedings ……” The legal rational as given by the Apex Court is that in a departmental proceeding the standard of proof is not as high as in a criminal proceedings and when the department failed to establish charges in departmental proceedings it could not be conceived that on the same material criminal charges could be sustained. In my view, this itself, clearly establishes that the converse may not be correct. Now, coming to the case, as relied by the petitioner, being the case of Captain M. Paul Anthony (supra). There the question was that could departmental proceedings and criminal case be continued simultaneously on the same set of facts. On the facts, it would be seen 7 that their Lordships of the Apex Court did not hold that both departmental proceedings and criminal prosecutions could not be taken up on the same set of facts but still their Lordships allowed the appeal of the delinquent, in view of the fact that while on suspension he was not even paid subsistence allowance and therefore they upheld the order of the High Court in which the departmental proceedings were set aside with a liberty to initiate fresh departmental proceedings but in the peculiar circumstances directed not to initiate fresh departmental proceedings. In paragraph 13 of the reports (AIR) their Lordships have held thus:- “…..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 8 case, the charge has to be proved by the prosecution beyond reasonable doubts…..” In my view, this proposition in the case of Captain M. Paul Anthony (supra), as relied by the petitioner, works against the petitioner himself and the petitioner cannot take benefit of the said decision which is totally distinguishable on the facts. In the case before the Apex Court after a full-fledged trial the delinquent was given an honourable exit, which is not the present case. Now, I may refer to the decision in the case of T.N.C.S. Corporation Limited (supra), as relied by the respondents. Here their Lordships have clearly again held that the scope of disciplinary proceedings and the scope of criminal proceedings in a Court of criminal law are quite distinct, exclusive and independent of each other. Moreover, the standards of proof required in a criminal proceeding and the departmental disciplinary actions are not the same. In that case the High Court had held that in case of acquittal of the delinquent by criminal Court, the departmental enquiry must fail. This was not accepted by the Apex Court on the said principle. Thus seen, in the facts of the present case, the petitioner not having been sent up for trial in criminal case by the C.B.I. is no ground to hold the departmental proceeding to be non est. Thus, in my view, the writ petition cannot succeed and must be dismissed, as such, it is dismissed. Trivedi/ (Navaniti Prasad Singh, J.) "
Other Referred Cases
Captain M. Paul Anthony Vs. Bharat Gold Mines Limited & Another, T.N.C.S. Corporation Limited & Ors. Vs. K. Meerabai, P.S. Rajya Vs. State of Bihar
Laws Referred To
General Insurance (Conduct, Discipline and Appeal) Rules, 1975
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