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Surinder Pal Kapoor (Service)     29 July 2009

Departmental Proceedings after acquittal

 

Sub: Legal opinion sought on

 

whether after acquittal by the District & Sessions Judge departmental proceedings/enquiry could be initiated that too after inordinate delay of 4 years 2 months from the date of incident i.e. 7.6.2005

 

Whether the Baba Farid University of Health Sciences, Faridkot keep one employee under suspension after acquittal by the Court on merit and that too where no appeal has been preferred by the State against the Judgment and appeal period of 90 days has also been elapsed on 28.6.2009.

 

 

Sir,

 

 

Consequent upon my arrest and detention in police custody in connection with leakage of question paper of PMET-2005 I was placed under suspension w.e.f. 17.6.2005, vide University Orders No.BFUHS-05-Estt./9531 dated 21.6.2005.

 

Through Univ. Order No.BFUHS-05-Estt/15271 dated 10.10.2005 the then Vice-Chancellor ordered that I will remain under suspension till the final decision of the Court Case in regard to leakage of Question Paper of PMET-2005 as the case has been registered in FIR No.88 dated 7.6.2005.

 

Vide Office Order No.BFUHS/07-Estt./15963 dated 29.6.2007 the then Vice-Chancellor enhanced my subsistence allowance from 50% to 7% as per clause 7.2(1)(i) of Punjab C.S.R. with immediate effect i.e. 29.6.2007.

 

I was tried for the offence punishable U/S 468 of IPC. The District & Sessions Judge, Faridkot on 20.3.2009 acquitted me and held that:-

 

"16. In view of my discussions recorded in the preceding paras and unbelievable and un-trustworthy prosecution evidence on the record, I have reached at the conclusion that the prosecution has fallen flat on all the counts. It has failed to prove any of the charges against any of the accused persons. All the points for determination mentioned in Para No.6 of the Judgment stand decided against the prosecution. Consequently, all the accused persons Boota Ram Helper, Ramesh Kumar Binder, Rakesh Kumar Driver, Balwinder Singh, Kamaljit Singh, Dr Vinod Khanna, Nand Kishore and Surinder Pal Kapoor Superintendent are ordered to be acquitted of the charges framed against them for the want of evidence against them. The file be consigned to the record room, Faridkot. Announced in open Court this 20th day of March, 2009."

Keeping in view the situation explained above I seek your legal opinion on the following points:-

 

Surinder Pal Kapoor

Office Superintendent Grade-I(Under Suspension)

Baba Farid University of Health Sciences, Faridkot

(Resi:10-C, Markfed Complex, KKP Road, Faridkot)

 

29th July, 2009

 

1) whether after acquittal by the District & Sessions Judge, departmental proceedings/enquiry could be initiated that too after inordinate delay of 4 years 2 months from the date of incident i.e. 7.6.2005.

 

2) Whether the Baba Farid University of Health Sciences, Faridkot keep me under suspension after acquittal by the Court on merit and that too where no appeal has been preferred by the State against the Judgment and appeal period of 90 days has also been elapsed on 28.6.2009.

 

 

 

No appeal has been preferred by the State against the above said case as on today the 29th July, 2009.

 

I moved an application on 1.4.2009 to the Vice-Chancellor, Baba Farid University of Health Sciences, Faridkot along with a certified copy of Judgment dated 20.3.2009 and requested him to re-instate me in service as I have been acquitted from all the charges by the District & Sessions Judge, Faridkot.

 

On 30th June, 2009 I again requested in writing to the Vice-Chancellor that appeal period of 90 days has elapsed on 28.6.2009 and State has not preferred any appeal against the said Judgment, therefore, I may kindly be re-instated in service.

 

On 15th July, 2009 the Law Officer of the University verbally informed that the Board of Management of the University had decided on 21.4.2009 that an Internal Enquiry be got conducted against Surinder Pal Kapoor, Office Superintendent, Boota Ram and Rakesh Kumar (all under suspension) who were alleged to be involved in paper leakage case, from an retired IAS Officer/Retired Judge. Accordingly, Sh. MM Oberoi, Retired IAS Officer was appointed Enquiry Officer but he could not conduct the enquiry at that time because matter was subjudice. Now, the University will write that Sh. Oberoi to conclude the enquiry.

 

Till today i.e. 29th July, 2009 I have not been conveyed anything in writing whether any enquiry is pending against me. I have never been issued any Show Cause Notice or Charge-sheet.

 

My application for re-instatement is still pending with the Vice-Chancellor, without telling me any reason in writing to me.

 

 



Learning

 5 Replies

Surinder Pal Kapoor (Service)     29 July 2009

Sub: Legal opinion sought on

 

whether after acquittal by the District & Sessions Judge departmental proceedings/enquiry could be initiated that too after inordinate delay of 4 years 2 months from the date of incident i.e. 7.6.2005

 

Whether the Baba Farid University of Health Sciences, Faridkot keep one employee under suspension after acquittal by the Court on merit and that too where no appeal has been preferred by the State against the Judgment and appeal period of 90 days has also been elapsed on 28.6.2009.

 

Sir,

 

Consequent upon my arrest and detention in police custody in connection with leakage of question paper of PMET-2005 I was placed under suspension w.e.f. 17.6.2005, vide University Orders No.BFUHS-05-Estt./9531 dated 21.6.2005.

 

Through Univ. Order No.BFUHS-05-Estt/15271 dated 10.10.2005 the then Vice-Chancellor ordered that I will remain under suspension till the final decision of the Court Case in regard to leakage of Question Paper of PMET-2005 as the case has been registered in FIR No.88 dated 7.6.2005.

 

Vide Office Order No.BFUHS/07-Estt./15963 dated 29.6.2007 the then Vice-Chancellor enhanced my subsistence allowance from 50% to 7% as per clause 7.2(1)(i) of Punjab C.S.R. with immediate effect i.e. 29.6.2007.

 

I was tried for the offence punishable U/S 468 of IPC. The District & Sessions Judge, Faridkot on 20.3.2009 acquitted me and held that:-

 

"16. In view of my discussions recorded in the preceding paras and unbelievable and un-trustworthy prosecution evidence on the record, I have reached at the conclusion that the prosecution has fallen flat on all the counts. It has failed to prove any of the charges against any of the accused persons. All the points for determination mentioned in Para No.6 of the Judgment stand decided against the prosecution. Consequently, all the accused persons Boota Ram Helper, Ramesh Kumar Binder, Rakesh Kumar Driver, Balwinder Singh, Kamaljit Singh, Dr Vinod Khanna, Nand Kishore and Surinder Pal Kapoor Superintendent are ordered to be acquitted of the charges framed against them for the want of evidence against them. The file be consigned to the record room, Faridkot. Announced in open Court this 20th day of March, 2009."

Keeping in view the situation explained above I seek your legal opinion on the following points:-

 

Surinder Pal Kapoor

Office Superintendent Grade-I(Under Suspension)

Baba Farid University of Health Sciences, Faridkot

(Resi:10-C, Markfed Complex, KKP Road, Faridkot)

 

29th July, 2009

 

1) whether after acquittal by the District & Sessions Judge, departmental proceedings/enquiry could be initiated that too after inordinate delay of 4 years 2 months from the date of incident i.e. 7.6.2005.

 

2) Whether the Baba Farid University of Health Sciences, Faridkot keep me under suspension after acquittal by the Court on merit and that too where no appeal has been preferred by the State against the Judgment and appeal period of 90 days has also been elapsed on 28.6.2009.

 

 

No appeal has been preferred by the State against the above said case as on today the 29th July, 2009.

 

I moved an application on 1.4.2009 to the Vice-Chancellor, Baba Farid University of Health Sciences, Faridkot along with a certified copy of Judgment dated 20.3.2009 and requested him to re-instate me in service as I have been acquitted from all the charges by the District & Sessions Judge, Faridkot.

 

On 30th June, 2009 I again requested in writing to the Vice-Chancellor that appeal period of 90 days has elapsed on 28.6.2009 and State has not preferred any appeal against the said Judgment, therefore, I may kindly be re-instated in service.

 

On 15th July, 2009 the Law Officer of the University verbally informed that the Board of Management of the University had decided on 21.4.2009 that an Internal Enquiry be got conducted against Surinder Pal Kapoor, Office Superintendent, Boota Ram and Rakesh Kumar (all under suspension) who were alleged to be involved in paper leakage case, from an retired IAS Officer/Retired Judge. Accordingly, Sh. MM Oberoi, Retired IAS Officer was appointed Enquiry Officer but he could not conduct the enquiry at that time because matter was subjudice. Now, the University will write that Sh. Oberoi to conclude the enquiry.

 

Till today i.e. 29th July, 2009 I have not been conveyed anything in writing whether any enquiry is pending against me. I have never been issued any Show Cause Notice or Charge-sheet.

 

My application for re-instatement is still pending with the Vice-Chancellor, without telling me any reason in writing to me.

 

S.B.adil rahman (Legal Consultant )     29 July 2009

 

 

Judgement of the Apex of holding criminal and departmental proceedibgs  touching the same subject matter. Both can go side by side  concurrently or simultaneously. The pre-requisites which have been made essential are that the charges in both the cases should  not be the  same set of facts and evidences"

N.K.Assumi (Advocate)     29 July 2009

Dear Mr. Kapoor, Firstly, your University Statues will also play a vital role in answering your question. But, usually, If the acquittal is for technical reasons then it is not binding on the disciplinary autghority. 2.If the acquittal is by giving benefit of doubt then it in that case subsequent disciplinary action can be taken. 3.when decision is not on merits and the charge fails for other reasons, then subsequent departmental enquiry can be held. Similar to your case was decisded by the Supreme Court and the Apex Court speaking through S.Murtaza, A.Varadarajan and V.B.Eradi held: " If after acquittal whether or not the departmental inquiry pending against the respondents would have tro continue. This is a matter which is to be decided by the department after considering the nature of the findings given by the criminal court. Normally where the accused is acquitted honourably and completely exonerated of the charges it would not be expedient to continue a departmental inquiry on the very same charges or grounds of evidence, but the fact remains, however, that merely because the accused is acquitted the power or the authority continue and the departmental inquiry is not taken away and its discreation in any way fettered. Howevr , as quiet some time has elapsed since the departmental inquiry had started the aithority concerned will take into consideration this factor in coming to the conclusion if it is really worthwhile to continue the departmental inquiry in the event of the acquittal of the respondents. Your case falls in this or not you have to gve a proper thought. All the best.

H. S. Thukral (Lawyer)     29 July 2009

There is no bar to hold a departmental inquiry even when a deliquent employee has been acquited on similar  criminal charges. The reason given by Apex Court in this regard is that the proof of guilt required in criminal court is much more stringent and benifit of doubt lies in favour of accused.

Preetahman Mallik (Self)     04 November 2009

 Hi expert,

My father retired from State govt. of orissa service on april 30 2004. on August 2004 A show cause notice was served on him stating "why disciplinary action should not be taken against you?" He writting a letter to the Head of the department asked for time to answer the cause, filed an administrative suit in the SAT, Cuttack, Orissa, SAT put an interim stay order on the 'Show cause notice'. Then the case could not be decide as that was a bench case, and bench could not be sit in past 5 years. and in this june 2009, after the bench has sit decided the case as the appelant has no merit. Now the question is as per state govt. service rules no departmental proceeding can initiate after 4 years of retirement. is the show cause notice is a part of departmental proceeding? i think that after getting a reply from the person on whom the notice has been served the head of the department after scrutinising the reply decided whether departmental proceeding should be initiated or not, otherwise why show cause notice is served and reply is seeked? does the court's interim stay on show cause notice has not automatically passed the 4 years phase and is it reversible as the court has decided the case.? Finally could the departmental proceeding could be started now keeping in mind the advantage of 4 years after retirement point of view?


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