1999 (3) TMI 625 - SC - Indian Laws

Suspended employee denied subsistence allowance and medical adjournments; ex parte inquiry quashed after acquittal in linked raid case

Non-payment of subsistence allowance during suspension, coupled with refusal of medically supported adjournments, deprived the delinquent employee of a ... Departmental proceedings - financial stringencies caused by non-payment of Subsistence Allowance - Whether departmental proceedings and proceedings in a criminal case launched on the basis of the same set of facts can be continued simultaneously? Held that:- 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, the findings recorded by the Inquiry Officer at such proceedings, which were held ex-parte, stand vitiated. As pointed out, 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. 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, the findings recorded by the Inquiry Officer at such proceedings, which were held ex-parte, stand vitiated. 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. Issues Involved:1. Simultaneous continuation of departmental proceedings and criminal case based on the same set of facts.2. Non-payment of Subsistence Allowance during suspension.3. Violation of principles of natural justice in conducting ex-parte departmental proceedings.4. Impact of acquittal in a criminal case on departmental proceedings based on identical facts.Issue-wise Detailed Analysis:1. Simultaneous continuation of departmental proceedings and criminal case based on the same set of facts:The primary issue was whether departmental proceedings and a criminal case based on the same set of facts can be continued simultaneously. The court noted that this question arises frequently in service matters. The appellant, a Security Officer, was subjected to both proceedings following a raid that recovered gold from his residence. The court reviewed various precedents, establishing that while there is no legal bar to simultaneous proceedings, it is often advisable to stay departmental proceedings if the criminal case involves grave charges and complicated questions of law and fact. The court emphasized that departmental and criminal proceedings operate in distinct jurisdictions, with different standards of proof.2. Non-payment of Subsistence Allowance during suspension:The appellant argued that he was not paid Subsistence Allowance during his suspension, which hindered his ability to attend the departmental proceedings. The court acknowledged that non-payment of Subsistence Allowance is inhumane and violates the right to life under Article 21 of the Constitution. The court cited previous judgments, stating that non-payment could vitiate the entire disciplinary process. It was undisputed that the appellant did not receive Subsistence Allowance, which led to financial difficulties preventing him from attending the proceedings.3. Violation of principles of natural justice in conducting ex-parte departmental proceedings:The court found that the departmental proceedings were conducted ex-parte despite the appellant's illness and financial difficulties. The appellant had requested adjournments supported by medical certificates, which were denied. The court held that this amounted to a violation of natural justice as the appellant was not afforded a fair opportunity to defend himself. The court emphasized that the principles of natural justice are fundamental in disciplinary proceedings.4. Impact of acquittal in a criminal case on departmental proceedings based on identical facts:The appellant was acquitted in the criminal case with categorical findings that the prosecution failed to establish its case. The court noted that the same witnesses and evidence were used in both the criminal and departmental proceedings. Given the acquittal, the court held that it would be unjust and oppressive to uphold the findings of the ex-parte departmental proceedings. The court stated that the distinction between departmental and criminal proceedings does not apply when both are based on identical facts and evidence.Conclusion:The appeal was allowed, setting aside the Division Bench's judgment and upholding the Single Judge's decision to allow the writ petition. The court directed the appellant's reinstatement as Security Officer with full arrears of salary and allowances from the date of suspension. The court also awarded costs of Rs.15,000 to the appellant. The court declined to permit fresh disciplinary proceedings given the prolonged agony faced by the appellant since 1985 and his acquittal in 1987.