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Spadigam (J.) Vs. State of Kerala - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtKerala High Court
Decided On
Judge
Reported in(1970)ILLJ718Ker
AppellantSpadigam (J.)
RespondentState of Kerala
Cases ReferredSilva v. Road Transport Authority A.I.R.
Excerpt:
.....technical acquittals on grounds like want of sanction or jurisdiction may not inhibit departmental disciplinary proceedings. for some lesser charges, which may not amount to a criminal offence, but may well amount to grave dereliction of duty, entitling disciplinary action. no matter how grave the fact which is to be found in a civil case, the mind has only to be reasonably satisfied and has not with respect to any matter in issue in such a proceeding to attain that degree of certainty which is indispensable to the support of a conviction upon a criminal charge-see helton v. 247. is shore, it comes to this so far as the grounds for divorce are concerned, the case, like any civil case may be proved by a preponderance of probability, but the degree or probability depends on the..........the standard of proof would vary.9. as regards the standard of proof required for criminal acts in civil proceedings. dixon, j. (as he then was), said in hocking v. bell (1945) 71 c.l.r. 430 at 464:the solid body of authority against introducing the criminal standard of per-suation into civil causes cannot be shaken by the unconsidered statement of lord atkin in the case from allahabad--arayanan chettiyar v. official assignee of the high court, rangoon (1945)71 c.l.r. 500.in reifek v. mcelroy (1964-65) 112 c.l.r. 617, the australian high court said:the difference between the criminal standard of proof and the civil standard of proof is no more matter of words it is a matter of critical substance. no matter how grave the fact which is to be found in a civil case, the mind has only to be.....
Judgment:

K.K. Mathew, J.

1. The petitioner was a lower division clerk in the Land Revenue Department. From 1946 to 1953 he was working as head clerk in the office of the Administrative Officer, Wynad Land Colonization Scheme, Ambalavayal. In 1966 the police took up a case against him for certain irregularities alleged to have been committed by him in the discharge of his official duties. He was charged with offences punishable under Sections 409 and 477A of the Indian Penal Code. He was convicted of the offences by the Magistrate, Kalpetta; but was acquitted in appeal. In view of the pendency of the criminal case, the petitioner was suspended by the Collector of Malabar by Ex. P. 1 order. Although the petitioner was acquitted in appeal no order was passed reinstating him in service. Thereafter, for irregularities alleged to have been committed by him in keeping the accounts of the Office from 21 March 1950 to 21 March 1951, four criminal cases were filed against him by the police before the Munsif-Magistrate, Kalpetta. On 14 January I960 he was again acquitted of the charges. Yet again, on 28 February 1961 he was charged by the police before the Magistrate in three cases in connexion with irregularities in maintaining the accounts but in these cases also he was acquitted in 1962. On 5 October 1963 disciplinary proceedings were initiated against him In respect of the subject-matter of the police charges and the charges were directed to be enquired into under Kerala Civil Services (Disciplinary Proceedings Tribunal) Rules, 1960. An enquiry was conducted by the tribunal and the report of the enquiry finding the petitioner guilty of the charges was sent to Government. The Government agreed with the findings of the tribunal in the report, and issued a show-cause notice why the punishment of dismissal should not be imposed on him. The petitioner submitted his explanation, and thereafter, Government passed Ex. P. 7 order on 23 June 1967 dismissing the petitioner from service with effect from 8 February 1966, the date on which he was suspended.

2. Exhibit P. 7 order was impeached on three grounds: Counsel said that the petitioner was not a servant of the Kerala State as he was not finally allotted to the Kerala State in accordance with the provisions of the States Reorganization Act, and therefore, the Kerala State had no jurisdiction to take disciplinary proceedings against him, that the supplementary representation filed by the petitioner on 15 April 1967 (Ex. P. 6) before the disciplinary authority was not considered by the authority in Ex. P. 7 order, and the disciplinary proceedings were barred in view of the orders of acquittal passed by the criminal Court on substantially the same charges.

3. It is the last contention which was pressed most strenuously by counsel and I would deal with it in the first instance. The argument of counsel was that the doctrine of issue estoppel was attracted to the case and that since the petitioner was acquitted by the criminal Court on identical charges, the findings in the criminal cases would operate as res judicata against Government and would preclude evidence being led to prove the facts in issue in the disciplinary proceedings as regards which evidence has already been led and findings entered by the criminal Court. Counsel said that there is no reason why the doctrine of issue estoppel should be confined to the trial of an issue in a subsequent criminal case.

4. In Manipur Administration v. Bira Singh 0065/1964 : [1964]7SCR123 , the Supreme Court explained the doctrine as follows:

The rule of Issue estoppel in a criminal trial is that where an issue of fact has been tried by a competent Court on a former occasion and a finding has been reached in favour of an accused, such a finding would constitute as estoppel or resjudicata against the prosecution, not as a bar to the trial and conviction of the accused for a different or distinct offence, but as precluding the reception of evidence to disturb that finding of fact when the accused is tried subsequently even for a different offence which might be permitted by the terms of Section 403(2). The rule is not the same as the plea of double Jeopardy or autrefois acquit....

In State of Kerala v. Varghese and Ors. 1988 K.L.T. 465, Sadasivan, J. observed:

The rule of issue estoppel precludes evidence being let to prove a fact in issue as regards which evidence has already been led And a specific finding recorded at an earlier criminal trial, where an issue of fact has been tried by a competent Court on a former occasion and a finding has been reached in favour of an accused, such a finding would constitute an estoppel or res judicata against the prosecution not an a bar to the trial and conviction of the accused for a different or distinct offence; but as precluding the reception of evidence to disturb that finding of fact when the accused is tried subsequently even for a different offence. The rule relates only to the admissibility of evidence which is designed to upset a finding of fact recorded by a competent Court at a previous trial.

5. I do not think that the doctrine of issue est appel has any application here. The doctrine is only concerned with the admissibility of evidence designed to upset a finding recorded by a competent Court in a previous trial in a substquent criminal trial, It has never been applied in the case of an enquiry before a tribunal conducting a disciplinary proceeding, although the proceeding might be quasi-criminal in character.

6. It was then contended that because of the acquittal of the petitioner in the criminal cases, the disciplinary proceedings were barred. Counsel referred me to the judgment of Rajamannar, C.J., and Venkatarama Ayyar, J., in J. D'silva v. Road Transport Authority A.I.R. 1952 Mad. 858 to support the contention. In that case, the question was whether the discharge of the cleaner of the lorry in question there by the Magistrate of an offence under Section 186 of the Indian Panal Code and Section 7 of the Essential Supplies (Temporary Powers) Act would preclude the Road Transport Authority from suspending the permit on the ground that the lorry was used to carry smuggled artices. The learned Judges held that the discharge order by the Magistrate was conclusive, and that no further enquiry oan be had into the offence by the Road Transports Authority for suspendlng the permit of the vehicle. The Court said that primarily the criminal Courts of the land are entrusted with enquiry into offences, and it is desirable that the findings and orders of the criminal Courts should be treated as conclusive in proceedings before quasi-Judicial tribunals like Transport Authorities under the Motor Vehicles Act. The Court also said that if there is conviotion by a competent criminal Court, that would furnish conclusive ground for any penal action by the transport authorities and that equally, if the criminal prosecution ended in a diacharge or acquittal of the accused. and that event happened before the order of any Road Transport Tribunal, then, the tribunal would not have the power to go behind the final order of a competent criminal Court. According to the learned Judges, if at the time the Road Transport Tribunal disposes of any application or before such tribunal passes an order no prosecution has been launched, then, of course, It is not incumbent on the tribunal to await the criminal prosecution. But if a prosecution has actually commenced and that prosecution is in respect of the same offence by reason of which the transport authority proposes to take drastic action against the accused in the criminal case, then, it is desirable that the transport authority should await the decision of the criminal Court. The Court considered that this procedure would avoid the spectacle of two departments of the Government proceeding on contradictory lines to the annoyance and hardship of the citizens. This decision was followed in Shaik Kasim v. Superintendent of Post Offices, Chingleput Division, and Anr. 1965-I L.L.J. 197. In that case Ananthanarayanan, emulating Chief Justice, said that an administrative authority in initiating disciplinary proceedings is not bound to wait for the verdict of a criminal Court. But where the criminal Court has tried a person and acquitted him, it would be improper, and that such a proceeding is liable to be quashed as not in consonance with the principles of natural justice, if the administrative authority later initiates disciplinary proceedings on the identical facts and identical charges and records a contrary conclusion. The learned Judge said that the acquittal should have been substantially on the merits; and that technical acquittals on grounds like want of sanction or Jurisdiction may not inhibit departmental disciplinary proceedings. He further said that there is no inflexible rule that the finding of a criminal Court is conclusive, in every sense, upon administrative authorities and that if the finding is based purely on technical grounds; the administrative authority may conceivably punish, on the same facts. It could also punish, he said, on the same facts. for some lesser charges, which may not amount to a criminal offence, but may well amount to grave dereliction of duty, entitling disciplinary action. He was of opinion that where the acquittal is substantially on merits, it will not be proper for a disciplinary tribunal to record a finding of guilt on substantially same facts, and to punish thereon and that there is no difference whether the departmental authority acts before the criminal proceedings or after it.

7. I do not think that judgment of a criminal Court acquitting an accused on the merits of a case would bar disciplinary proceeding against him on the basis of the same facts, or that the Judgment would operate as conclusive evidence in the disciplinary proceedings. The reason for it is not far so seek. A criminal Court require a high standard of proof for convicting an accused. The case must be proved beyond reasonable doubt. The acquittal of an accused by a criminal Court only means that the case has not been proved against him beyond reasonable doubt. Such a standard of proof is Act required for finding a person guilty in a disciplinary proceeding. It would be enough if there is a preponderance of probability of his guilt. Normally, in a civil case, account must be taken of a doubt only if it results in a rational opinion that a fact in issue is less likely than not, whereas is a criminal case account must be taken of a doubt if it results in rational opinion that the contradictory of the issue is more than a remote possibility. [See the observations of professor Cootes quoted is Cross on Evidence, p. 117,] Denning, L. J. (as he then was), said:

In criminal cases the charge must be proved beyond reasonable doubt, but there may be degrees of proof within that standard. [See Bater v. Bater (I960) 2 All E.R. 458 at 459 ]

From the theoretical point of view the standard is always the same proof beyond reasonable, doubt, but what is a reasonable doubt . . . varies in practice according to the nature of the case and the punishment which may be awarded. The standard of proof on the normal issues in a civil suit is likewise always the same in theory proof of a preponderance of probability, but in practice.

there may be degrees of probability within that standard. The degree depends on the subject-matter. A civil Court, when considering a charge of fraud, will naturally require for itself a higher degree of probability than that which it would require when asking If negligence is established [see Bater v. Bater (1950) 2 All E.R. 458 at 459.' 'Though no Court and no jury would give less careful attention to issues lacking gravity than to those marked by it, the very elements of gravity become a part of the whole range of circumstances which have to be weighed in the scale when deciding an to the balance of probabilities [Hornal v. Neuberger Products, Ltd. (1957) 1 Q.B. 247 at 266].

8. I do not think that even if the misconflict charged in a disciplinary proceeding has all the ingredients of a criminal offence, the standard of proof would vary.

9. As regards the standard of proof required for criminal acts in civil proceedings. Dixon, J. (as he then was), said in Hocking v. Bell (1945) 71 C.L.R. 430 at 464:

The solid body of authority against Introducing the criminal standard of per-suation into civil causes cannot be shaken by the unconsidered statement of Lord Atkin in the case from Allahabad--arayanan Chettiyar v. Official Assignee of the High Court, Rangoon (1945)71 C.L.R. 500.

In Reifek v. McElroy (1964-65) 112 C.L.R. 617, the Australian High Court said:

The difference between the criminal standard of proof and the civil standard of proof is no more matter of words it is a matter of critical substance. No matter how grave the fact which is to be found in a civil case, the mind has only to be reasonably satisfied and has not with respect to any matter in issue in such a proceeding to attain that degree of certainty which is indispensable to the support of a conviction upon a criminal charge-see Helton v. Allen (1940) 63 C.L.R. 691, per Dixon, Evott and Mactiernan, JJ. (1940) 63 C.L.R. 714.

In Blyth V. Blyth (1966) A.C. 643 at 669, Lord Denning speaking about the standard of proof required for commission of adultery as a ground of divorce, said;

So far as the standard of proof it concerned, I would follow the words of Dixon, J., which I have quoted and which I elaborated in Bater v. Bater (1951), p. 35, with the approval of the Court of Appeal in Hornal v. Meuberger Products, Ltd. (1957) 1 Q.B. 247. Is shore, it comes to this so far as the grounds for divorce are concerned, the case, like any civil case may be proved by a preponderance of probability, but the degree or probability depends on the subject-matter. In proportion as the offence is grave, so ought the proof to be clear.

I had occasion to consider this aspect of the question in Kesava Bhatta v. Venkita-ramana Bhatta and Ors. 1968 K.L.J. 452 were I said:

Accordingly, in Helton v. Allen (1940) 63 C.L.R. 961 where the claimant under a will had been tried and acquitted of the murder of the testatrix the High Court of Australia was inclined to the view that she could not rely on this as an evidentiary fact in her favour when her rights under the will ware contented be the next of kin. In Packer v. Clayton (1932) 97 J.P. 14 there are some observations of Avory. J., in a Divisional Court to the effect that in affiliation proceedings, the acquittal of the respondent on a charge of sexual offence against the complainant was something that could have been taken into account by the Justices as showing that the girl's evidence did not convince the Jury, but it is doubtful whether this could be said to be so after Hollington v. Hawthorn Company, Ltd. 1943 K.B. 687. That case lays down in the clearest possible terms that a previous convictions is not even admissible as evidence of the facts upon which it was founded, at any rate when these facts are directly In issue in subsequent civil proceedings. In that case, the conviction of one of the defendants for careless driving was held to be inadmissible as evidence of his negligence in proceedings for damages on that ground against him and his employer. The main reason for the decision was that the conviction merely proved that another Court, acting on evidence which was unknown to the tribunal trying the civil proceedings was of opinion that the defendant was guilty of careless driving. This case has been criticized by text-book writers. For instance see Report Cross on Evidence, 1958 Edn., p. S44. Whatever might be the rule as regards an order of conviction, we do not think that an order of acquittal is admissible in evidence in a subsequent civil proceeding or in a proceeding having a predominantly civil character as here, to prove that the party is not guilty of the Act changed in the previous criminal case.

10. A disciplinary proceeding is not a criminal trial; is State of Andhra Pradesh and Ors. v. Sri Rama Rao (S.) 1964-II L.L.J 150, the Supreme Court observed that in considering whether a public Officer is guilty of the misconduct charged against him in disciplinary proceeding, the rule followed in criminal trials that an offence is not established unless proved by evidence beyond reasonable doubt to the satisfaction of the Court has no application.

11. The object of criminal law and its enforcement through criminal proceeding is different from that of disciplinary proceeding. A criminal proceeding is mainly Intended to punish persons who have broken ' the King's peace,' and thus to show the indignation of the community to criminals whereas disciplinary proceeding is intended to maintain the purity and efficiency of public service. Then again, in a criminal trial, the only evidence admissible is that which is made admissible under the provisions of the Evidence Act. A tribunal conducting an enquiry in a disciplinary proceeding is not bound by the atriot, rules of evidence. Any material which has a logically probative value to prove or disprove the facts in issue is relevant and admissible. I had occasion to consider the nature of the evidence admissible before a tribunal conducting an enquiry in respect of a charge under the Sea Customs Act in Mahin v. Collector of Customs 1967 K.L.T. 539. There, I quoted the following observations of Diplock, L.J. (as be than was). In Regina v. Deputy Industrial Injuries Commissioner, Ex Parte: Moore (1965) 2 W.L.R. 89 at 116:

These technical rules of evidence, however, form no part of the rules of natural justice. The requirement that a person exercising quasi-Judicial functions must base his decision on evidence means no more than it must be based upon material which tends logically to show the existence or non-existence of facts relevant to the issue to be determined, or to show the likelihood or unlikelihood of the occurrence of some future event the occurrence of which would be relevant. It means that he must not spin a coin or consult an astrologer but he may take into account any material which as a matter of reason, has some probative value in the sense mentioned above

and also I said:

A law suit In Court is not entirely an enquiry into truth. The rules of contest often make the result hinge not on the truth, but on the astuteness of counsel . . . But in a non-adversary proceeding in which the tribunal is under an affirmative duty to find out the truth, and in cases in which parties are unrepresented by counsel and are unable to help themselves, the requirements must be different Although evidence rules of some kind are needed for all fact-finding proceedings, those rules which rest heavily upon the adversary system of Courts are ill-adapted for some types of quasi-judicial proceedings. The rules of evidence in such proceedings must take into account the affirmative obligation resting upon the administrative agencies in some proceedings in aggressively finding at the truth . . . The rules of evidence to be applied in any proceeding before an administrative authority must be selected in part with regard to the degree of precision needed in the particular fact-finding. Some enquiries require maximum precision, others only a rough approximation. Where precision is needed rules of evidence must be more exacting. Where approximation suffices, less reliable Information may be admitted.

Therefore, in a disciplinary proceeding, a person can be found guilty of a charge on materials which are inadmissible in evidence in a criminal trial. A Judgment of acquittal by a criminal Court is inadmissible in a civil suit based on the same cause of action, except for the vary limited purpose mentioned in Section 43 of the Evidence Act. Just as a civil Court must independently of the decision of the criminal Court investigate facts and come to its own finding, so also, I think, a tribunal conducting a disciplinary proceeding must investigate the facts and come to its own finding and that without being hampered by the strict rules of evidence. Whether or not it is theoretically right to accord a different treatment to a Judgment of conviction in a disciplinary proceeding involving the same issue in the light the proviso (a) to Article 311(2) is a matter of which I do not wish to express an opinion now. Even as regards a judgment of acquittal as the strict rules of evidence Act are not applicable to a disciplinary proceeding, the Judgment might be a relevant place of evidence, not because the judgment has got any peculiar value but because a tribunal conducting a disciplinary proceeding can take into account any material provided it is logically of the facts in issue.

12. The principles governing criminal Justice that the State would allow a score of real offenders to escape rather than see a single innocent man convicted, can hardily find an each in disciplinary proceeding.

13. As regards the observations of the learned Judges in J. D'Silva v. Road Transport Authority : AIR1952Mad863 (vide supra) that when a criminal Court and a disciplinary authority come to difference conclusions on identical charges, the spectacles is rather undefying, I need only say that is inherent in our system. We see much the same thing when a civil Court arrives at a finding different from that of a criminal Court in respect of the same matter.

14. In Motising Chhagasingh Vaghela v. S.D. Metha 1966-I L.L.J. 55, the Court held that there is no basis for the view that a departmental enquiry is barred on the same facts on which an order of acquittal has been recorded by a criminal Court. The Court said that when an officer decided to hold a departmental enquiry all that he does is to start the proceedings for the purpose of satisfying himself as to whether, in fact, the delinquent is guilty of any misconduct or delinquency which requires to be deal) with is the Interests of public administration and that when he is holding such an enquiry he is not at all concerned nor is it his object to undertake the decision of the question as to whether the findings recorded by the criminal Court were right or wrong. The Court added that the two proceedings, the departmental enquiry and 'he criminal trial, are entirely different in nature, that they operate in different fields, and that they have different objectives. The Court said:

In a criminal trial, an incriminating statement made by an accused, in certain circumstances or before certain individuals, is totally inadmissible in evidence, in a departmental proceeding, the enquiry Officer is not bound by any such technical rule. The degree of proof which is necessary to record an order of conviction is different from the degree of proof which is necessary to record the commission of a delinquency.

15. In State of Orissa v. Sailabehari A.I.R. 1963 Orissa 78, the Court held that where a criminal Court has acquitted a public servant honourably, a subsequent enquiry in respect of the same allegation may offend the rules of natural Justice and may have to be quashed, but where a criminal Court did not acquit him honourably but gave him benefit of doubt seating that though there was strong suspicious evidence against him, the prosecution evidence did not completely exclude the other possibility, further department enquiry in respect of the same subject-matter is not excluded, especially as the standard of proof required in such an enquiry against a delisquant public servant is not the same as that required against an accused in a criminal case. I am not sure whether in principle any distinction can be made because the Judgment of the criminal Court gives the benefit of doubt to the accused. That only means that the evidence in the case has not reached the standard required for the proof of the offence is J.L. Toppo v. Tata Locomotive and Engineering Company, Ltd. 1982-II L.L.J. 398 (vide supra), it was held that the acquittal of a person giving him the benefit of doubt is no ground for holding that a disciplinary proceeding in respect of the identical facts would be barred.

16. The proceedings before the Road Transport Authority for suspending the permit was assumed to be of a penal nature In J. D'Silva v. Road Transport Authority : AIR1952Mad853 (vide supra), I think, the proceedings there were predominantly civil in character. The offence was merely a ' violation ' to use an American expression, and carried none of the incidents of criminal conviction except the civil penalty of suspension or cancellation of the permit of the vehicle. Some American writers would call an offence of this type as a 'civil offence,' and they have the support of the American Law Institute's Model Penal Code. In Proddman v. Davman 67 C.L.R. 536, Dixon, J., referred to statutes like the Motor Vehicles Act as statutes dealing with 'social and Industrial regulations.' In Brown v. Green 84 C.L.R. 285, the Court referred to such seatutes as dealing with 'economic and social regulations.' The proceeding before the Road Transport Authority in Question in J. D'Silva v. Road Transport Authority A.I.R. 1963 Mad. 853 (vide supra) was a proceeding affecting only civil rights. The proceeding for suspension or cancellation of a permit is not intended to punish in the sense in which punishment is understood in criminal law:

What distinguishes a criminal from a civil sanction ..is the Judgment of community condemnation which accompanies and Justifies its imposition. As Professor Gardner wrote not long ago, in a distinct but cognate connexion;

The essence of punishment for moral delinquency lies in the criminal conviction itself. One may lose more money on the stock market than in a court-room: a prisoner of war camp may well provide a harsher environment than a State prison: death on the field of battle has the same physical characteristics as death by sentence of law. It is the expression of the community's hatred, fear, contempt for the convict which alone characterizes physical hardship as punishment.

[See the Aims of the Criminal Law by Henry Hart-23 Law and Contemporary Problems. 1958, pp. 404-406.]

17. I do not think that there is any substance in the contention that the petitioner was, not a servant of the Government of Kerala at the material time. The finding of the tribunal and the disciplinary authority is that he was. The petitioner admits that he was reinstated in service on 2 September 1965 after he was suspended. This would indicate that he was in the service of the Kerala State on the relevant date.

18. There is also no substance in the contention of the petitioner that the supplementary representation filed by him was not considered before passing Ex. P. 7.

19. I dismiss the petition. No costs.


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