2019 (1) TMI 2035 - HC - Indian Laws

Seeking re-instatement in the service - Withdrawal of withdrawal slip of the customer - Conviction from the offence or not - HELD THAT - The appellant was never convicted of an offence within the meaning of clause 2. Question of facing disciplinary action in terms of clause 3 could not have arisen. In view of the fact that the appellant had not been dismissed from service based on any conviction recorded by the criminal court, the entirety of clause 3, which deals with offences and other situations flowing therefrom, did not have any application in this case. He was proceeded against in terms of clauses 1, 5, 6, 11 and 12 and having suffered the order of removal from service based on the report of the enquiry officer, the order of acquittal recorded by the criminal court could not have been made by him the basis for seeking reinstatement in service. There are no reason to uphold the conclusion of the learned presiding Judge of the Hon'ble Division Bench that clause 3 applied to the facts and circumstances before His Lordship and the appellant was entitled to the benefit of sub-clause (d) thereof. The writ petition of the appellant deserved an order of dismissal but not for the reasons assigned by the learned Single Judge and the companion Judge of the Hon'ble Division Bench - The reference is answered accordingly. Appeal dismissed.

Summary

Issues Involved:
1. Difference of opinion between Division Bench judges regarding the impact of criminal acquittal on disciplinary proceedings.
2. Applicability of clause 3(d) of the Memorandum of Settlement to the appellant's case.
3. Standard of proof in disciplinary proceedings versus criminal proceedings.
4. The procedural correctness of the reference made to the referee judge.

Issue-wise Detailed Analysis:

1. Difference of opinion between Division Bench judges regarding the impact of criminal acquittal on disciplinary proceedings:
The Division Bench judges had differing views on whether the appellant's acquittal in a criminal case should affect the disciplinary proceedings. One judge believed that the acquittal should lead to reinstatement, while the other maintained that the standards of proof in criminal and disciplinary proceedings are different, and thus the disciplinary action should stand.

2. Applicability of clause 3(d) of the Memorandum of Settlement to the appellant's case:
Clause 3(d) was central to the appellant's argument for reinstatement. This clause pertains to the reinstatement of an employee who has been acquitted after being convicted of an offense. However, the referee judge clarified that clause 3(d) applies only to cases where an employee was dismissed based on a criminal conviction. Since the appellant was removed based on disciplinary proceedings and not a criminal conviction, clause 3(d) was deemed inapplicable.

3. Standard of proof in disciplinary proceedings versus criminal proceedings:
The judgment emphasized the distinction between the standards of proof required in criminal and disciplinary proceedings. Criminal proceedings require proof beyond a reasonable doubt, whereas disciplinary proceedings rely on the preponderance of probabilities. This distinction justified the disciplinary authority's decision to remove the appellant despite his acquittal in the criminal case.

4. The procedural correctness of the reference made to the referee judge:
The appellant's counsel argued that the reference was incompetent as the Division Bench judges did not clearly formulate the point of difference. The referee judge, however, found the difference of opinion to be clear from the records and proceeded to render an opinion. The referee judge cited precedents to support the approach of determining the appeal based on the clear and ascertainable differences in the judges' conclusions.

Conclusion:
The referee judge concluded that the appellant's writ petition deserved dismissal, not because of the reasons assigned by the Single Judge or the companion Judge of the Division Bench, but because clause 3(d) of the Memorandum of Settlement did not apply to the appellant's case. Consequently, the appeal was dismissed, and the appellant's writ petition stood dismissed as well.