TMI Blog2006 (2) TMI 679X X X X Extracts X X X X X X X X Extracts X X X X ..... ere seriously injured. A departmental inquiry as well as a criminal proceeding was initiated against respondent No. 1. The criminal proceeding was at the instance of one of the bus passengers who got injured and later succumbed to injuries. This criminal case came to be registered as Farakka Police case No. 34 of 1994 under Sections 279, 338, 427 and 301 A-of India Penal Code. The departmental inquiry at the same time was also initiated against Respondent No. 1. So far as the criminal case is concerned, it ended in acquittal of Respondent No. 1 on the ground that sufficient evidence was not available to the Court to come to a conclusion of guilt of Respondent No. 1. As noted hereinafter, the Respondent No. 1 was removed from service after holding the departmental inquiry into the incident that had occurred on 22nd April 1994 by which, 15 bus passengers died and some others had serious injuries. Be it mentioned herein, the Transport Department of the State Government by a Notification, directed the District Magistrate, Murshidabad, West Bengal to hold an enquiry as to who was responsible for this accident and the death of 15 passengers and injury to other bus passengers. A rep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 1 However, the learned Single Judge thought it fit to set aside the order of removal and directed the disciplinary authority to supply the copies of the documents referred to hereinbefore, to the respondent No. 1 for filing comments against the said documents and thereafter to reach a fresh conclusion of the question of removal of respondent No. 1 from service after giving a reasonable opportunity of hearing to him. In view of the above findings arrived at by the learned Single Judge, the final order was passed in the following manner:- In the result, the writ petition succeeds in part. The order of the disciplinary authority, appearing at page 46 of the writ petition is quashed and set side. The writ petitioner is given liberty to ask for the copies of the documents which he wants for the purpose of the present proceeding. Such request must be made by tomorrow to the learned Advocate appearing for the respondent authority. Respondent authority would furnish copies of the same within three days thereafter. The writ petitioner would be entitled to offer his comments on the said documents to the disciplinary authority. The disciplinary authority upon receipt of such explanation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, since the District Magistrate was not examined and no one had proved the reliability and authenticity of his report, it was not open to the enquiry officer or to the disciplinary authority to rely on the said report of the District Magistrate on the basis of which a finding was arrived at by the disciplinary authority. The Division Bench had also drawn an adverse inference by holding that the Inquiry Officer had exceeded his jurisdiction by relying on the depositions of witnesses alleged to have been examined and relied on by the District Magistrate without examining such witnesses, in making his report. Accordingly, the Division Bench held that reliance on such depositions was wholly illegal and void, leading to perversity. Thereafter, the Division Bench also had taken into consideration the fact of non-mentioning of rash and negligent driving of respondent No.1 in the Firs Information Report (FIR). Going into the facts and circumstances of the case leading to the filing of a FIR, the division Bench held that since the FIR did not mention about the rash and negligent driving, no reliance could be placed. It was also finding of the Division Bench that since only a xerox copy of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that nature and scope of proof in a criminal case is very different from that of a departmental disciplinary proceeding and order of acquittal in the former, cannot conclude departmental proceedings. This Court has further held that in a criminal case charge has to be proved by proof beyond reasonable doubt while in departmental proceeding the standard of proof for proving the charge is mere preponderance of probabilities. Such being the position of law now settled by various decisions of this Court, two of which have already been referred to earlier, we need not deal in detail with the question whether acquittal in a criminal case will lead to holding that the departmental proceedings should also be discontinued. That being the position, an order of removal from service emanating from a departmental proceeding can very well be passed even after acquittal of the delinquent employee in a criminal case. In any case, the learned Single Judge as well as the Division Bench did not base their decisions relying on the proposition that after acquittal in the criminal case departmental proceedings could not be continued and order of removal could not be passed. On the question, whether ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... copy of the inquiry report to him before such punishment is imposed by the disciplinary authority. The Constitution Bench on the issue of non-supply of inquiry report, observed as follows: The reason why the right to receive the report of the Inquiry Officer is considered an essential part of the reasonable opportunity at the first stage and also a principle of natural justice is that the findings recorded by the Inquiry Officer form an important material before the disciplinary authority which along with the evidence is taken into consideration by it to come to its conclusions. It is difficult to say in advance, to what extend the said findings including the punishment, if any, recommended in the report would influence the disciplinary authority while drawing its conclusions. The findings further might have ben recorded without considering the relevant evidence on record, or by misconstruing it or unsupported by it. If such a finding is to be one of the documents to be considered by the disciplinary authority, the principles of natural justice require that the employee should have a fair opportunity to meet, explain and controvert it before he is condemned. It is the negation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pplied to the respondent No. 1 or a direction be give to the disciplinary authority, as was done by the learned Single Judge to supply copes of the documents and then permit the delinquent employee to make a representation or to file a comment on the same and thereafter to proceed from that stage to reach a fresh conclusion on the question of removal from service of Respondent No. 1 after taking into consideration the comments made by him and also the inquiry report and other evidences placed before the disciplinary authority. This aspect was also taken into consideration by the Consitition Bench of this Court in the case of Managing Director ECIL (supra) and it was held as under: The next question to be answered is what is the effect on the order of punishment when the report of the Inquiry Officer is not furnished to the employee and what relief should be granted to him in such cases. The answer to this question has to be relative to the punishment awarded. When the employee is dismissed or removed from service and the inquiry is set aside because the report is not furnished to him, in some cases the non-furnishing of the report may have prejudiced him gravely while in other ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourts/Tribunals find that the furnishing of the report would have made a difference to the result in the case that it should set aside the order of punishment. Where after following the above procedure, the Court/Tribunal sets aside the order of punishment, the proper relief that should be granted is to direct reinstatement of the employee with liberty to the authority/management to proceed with the inquiry, by placing the employee under suspension and continuing the inquiry from the stage of furnishing him with the report. The question whether the employee would be entitled to the back-wages and other benefits from the date of his dismissal to the date of his reinstatement if ultimately ordered should invariably be left to be decided by the authority concerned according to law, after the culmination of the proceedings and depending on the final outcome. If the employee succeeds in the fresh inquiry and is directed to be reinstated, the authority should be at liberty to decide according to law how it will treat the period from the date of dismissal till the reinstatement and to what benefits, if any and the extent of the benefits, he will be entitled. The reinstatement made as a re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ciplinary authority, it was not incumbent for the disciplinary authority to supply copy of the enquiry report for filing comments. In support of this contention, reliance was placed on the decision of this court in the case of Debotosh Pal Choudhury v. Punjab National Bank and Ors., reported in [2002] 8 SCC 68. In view of the Constitution Bench decision and in view of our directions made herein above to the effect that the disciplinary authority shall now proceed to dispose of the departmental proceeding after supplying a copy of the inquiry report and other documents relied on by the Inquiry Officer, it would not be necessary to go into this question at all. In any view of the matter, the grounds on which the Division Bench had set aside the judgment of the learned Single Judge and the order of removal and quashed the departmental proceedings as referred to herein earlier, were not open to it in the exercise of their supervisory power of Article 226 of the Constitution. One of the many grounds to quash the departmental proceeding was that since in the list of documents that was attached to the charge-sheet, the report of the District Magistrate was not mentioned, no reliance co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Division Bench also found that the findings of the disciplinary authority in passing the order of removal were perverse. We are unable to agree with this view of the Division Bench. In Roshan Di Hatti v. Commissioner of Income-tax, Delhi, [1977] 2 SCC 378, this Court, while considering the question of perversity of a finding, held that when the finding of fact was arrived at without any material or upon a view of the facts which could not reasonably be entertained or the facts found were such that no person acting judicially and properly instructed as to the relevant law would have come to that determination, the decision can be said to be perverse. It is, however, true that if perversity is shown and proved, it would be open to the Writ Court to hold as such. But, in our view, this was not a case of perverse finding. It appears that disciplinary authority on consideration of the reports of the Inquiry Officer and the District Magistrate and evidences adduced before them, came to a conclusion of fact that it was due to rash and negligent driving of the respondent No. 1, the accident had occurred and as a result of this, 15 lives were lost and some passengers were seriously inju ..... X X X X Extracts X X X X X X X X Extracts X X X X
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