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Tuesday, January 20, 2015

In a hypothetical case if an employee commits theft of the property of the employer and if the competent criminal Court acquitted him, still it is open for the employer may not retain him in services, though acquitted. The employee cannot claim as a matter of right for reinstatement on the ground of acquittal, since it is the question of confidence of employer in the employee.=THE HONBLE THE CHIEF JUSTICE SRI KALYAN JYOTI SENGUPTA AND THE HONBLE SRI SANJAY KUMAR WRIT APPEAL No. 1630 OF 2014 23-12-2014 B. Nagaswamy & another...Appellants The State of A.P., rep., by its Principal Secretary,Industries & Commerce (Mines & Geology)Hyderabad & others.Respondents

THE HONBLE THE CHIEF JUSTICE SRI KALYAN JYOTI SENGUPTA AND THE HONBLE SRI SANJAY KUMAR
               
WRIT APPEAL No. 1630 OF 2014    

23-12-2014

B. Nagaswamy & another...Appellants

The State of A.P., rep., by its Principal Secretary,Industries & Commerce
(Mines & Geology)Hyderabad & others.Respondents  

Counsel for Appellants  :Sri T. Kumar Babu

Counsel for respondent No.1:Government Pleader for Mines & Geology
Counsel for respondents 2-4: Government Pleader for Revenue (A.P.)
                                                       
<GIST:

>HEAD NOTE:  

? Cases referred

IN THE HIGH COURT OF JUDICATURE AT HYDERABAD          
FOR THE STATE OF TELANGANA AND THE STATE OF ANDHRA PRADESH                

THE HONBLE THE CHIEF JUSTICE SRI KALYAN JYOTI SENGUPTA            
        AND    
THE HONBLE SRI JUSTICE SANJAY KUMAR        
       
WRIT APPEAL No. 1630 of 2014  


Date: 23.12.2014


This Court made the following:

THE HONBLE THE CHIEF JUSTICE SRI KALYAN JYOTI SENGUPTA            
AND
THE HONBLE SRI JUSTICE SANJAY KUMAR        

WRIT APPEAL No. 1630 of 2014  


JUDGMENT: (Per the Honble the Chief Justice Sri Kalyan Jyoti Sengupta)
        This appeal has been preferred against the judgment and order of the
learned Single Judge dated 27.11.2014 passed in W.P.No.36176 of 2014 filed by
the appellant herein.
        The relief sought for in the writ petition is as follows:
         to issue an appropriate writ, order or direction more particularly one
in the nature of writ of Mandamus to declare the action of the respondent No.2
in
issuing the Recovery Certificates against the petitioners herein u/sec. 3(1) of
the
A.P. Revenue Recovery Act, 1890 vide letter No.6505/I.O/2012-9, dated
17.09.2014 and Lr.6505/I.O/2012-11, dated 17.09.2014 even before proving the
guilt of the petitioners in Cr.No.119 of 2014 of Veldurthy police station as
illegal, arbitrary and violative of principles of natural justice guaranteed
under
Article 21 of the Constitution of India and consequently set aside the same.

        As it could be understood on a reading of the aforesaid relief that the
petitioners want to contend that until and unless the competent criminal Court
decides the guilt of an offence in terms of the First Information Report, no
recovery proceedings could be initiated.  In other words, they want to say that
civil
authority should stay the recovery proceedings till the decision of the criminal
Court.
        Learned Single Judge on fact found indisputably that the Deputy Director
of Mines and Geology under Section 3(1) of the A.P. Revenue Recovery Act,
1890 issued a Certificate for recovery and the said certificate was forwarded to
the
Collector and District Magistrate, Kurnool, for recovery of Rs.1,28,21,248/-
from
the petitioners.  Before issuing the said demand notice, a show cause notice
dated
12.12.2013 was issued to the petitioners and after considering the explanation
submitted by them the above demand notice was issued on 22.03.2014 confirming
the amount to be recovered from the petitioners for illegal extraction of iron
ore,
which was quantified at 7,285 metric tons.  The above demand notice is not under
challenge and it has reached its finality.
        Even this Court in exercise of writ jurisdiction cannot reopen the matter
as
this Court is of the view that exercise of such power of issuance of demand
notice
is not illegal and cannot be stayed on any ground in absence of challenge.  As
on
today on narration of fact the situation emerges that the petitioners have no
option
except to pay the aforesaid amount.  In other words, in case of failure, the
appropriate authority shall recover the amount in accordance with law.  The
recovery proceedings were issued against the amount quantified for illegal
extraction of the minerals, which admittedly belong to the Government not to the
petitioners.
        Now a case has been registered to take cognizance of the alleged
criminality of the petitioners.  We are of the view that the criminal
proceedings
stand on a different footing from that of the present recovery proceedings
though
the criminal case has its origin from the same fact.  In case of civil liability
the
offender has to discharge the liability compensating the person affected in
accordance with law, but in criminal action in addition to payment of
compensation, the wrong doer is to receive punishment.  Here the admitted
position is that extraction of minerals has been done and it was found as
illegal.
Whether it was done with an intention to commit an offence or not is another
aspect of the matter.  But illegality of extraction of minerals in civil side is
proved.
It is settled position of law that the findings of the criminal Court does not
bind the
civil Court, but reverse it true.  The civil Court will proceed independently of
the
proof of fact of criminality.   In a hypothetical case if an employee commits
theft
of the property of the employer and if the competent criminal Court acquitted
him,
still it is open for the employer may not retain him in services, though
acquitted.
The employee cannot claim as a matter of right for reinstatement on the ground
of
acquittal, since it is the question of confidence of employer in the employee.
In
this case, even after paying compensation for illegal extraction of mineral, the
appellant is still to face criminal consequences.  We think that the learned
Single
Judge has passed correct and just order.  Hence, we do not want to interfere
with
the same.
        The writ appeal is accordingly dismissed.
        Pending miscellaneous petitions, if any, shall also stand dismissed.  No
order as to costs.
___________________  
K.J. SENGUPTA, CJ  
___________________  
SANJAY KUMAR, J  
Date: 23.12.2014

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