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PETITIONER:

CAPT.M. PAUL ANTHONY ..

Vs.

RESPONDENT:

BHARAT GOLD MINES LTD. & ANR.

DATE OF JUDGMENT: 30/03/1999

BENCH:

S. Saghir Ahmad, & V N Khare.

JUDGMENT:

S.

SAGHIR AHMAD, J.

Leave granted.

Whether departmental proceedings and proceedings in a

criminal case launched on the basis of the same set of facts

can be continued simultaneously is a question which crops up

perennially in service matters and has once again arisen in

this case in the following cirucmstances.

Bharat Gold Mines Ltd. (Respondent No. 1) is a Govt.

undertaking at Kolar Gold Fields in Karnataka, where the

appellant was appointed as a Security Officer on 31.10.1983.

On 2nd of June, 1985, a raid was conducted by the

Superintendent of Police at the house of the appellant from

where a mining sponge gold ball weighing 4.5 grams and 1276

grams of 'gold bearing sand' were recovered. Thereafter, on

the same day, a First Information Report was lodged at the

Police Station and a criminal case was registered against

the appellant, who was placed under suspension on 3.6.1985.

The next day, namely, on 4th of June, 1985, a charge-sheet

was issued proposing a regular departmental inquiry with

regard to the recovery of the above articles from his house.

On 11th of June, 1985, the appellant made a representation

to the Disciplinary Authority denying the allegations made

against him in the charge sheet and pleaded that the entire

episode was a concoction. He prayed that the departmental

proceedings initiated against him may be dropped or may, in

the alternative, be postponed till the conclusion of the

criminal proceedings against him on the basis of the First

Information Report lodged against him at the Police Station

on 2.6.1985. The representation was rejected on 19.6.1985

and the appellant was informed that the disciplinary

proceedings would be held against him on 1.7.1985.

In the meantime, the appellant filed Writ Petition No.

10842 of 1985 in the Karnataka High Court for a direction to

restrain the respondents from proceeding with the

disciplinary inquiry till the conclusion of the criminal

case as the appellant's defence was likely to be prejudiced.

This Writ Petition was disposed of by the High Court on

19.8.1985 and a direction was issued to the respondents to

consider and dispose of the appellant's appeal filed against

the order of suspension but liberty was given to the

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respondents to defer the disciplinary proceedings if it was

found expedient so to do. The respondents did not defer the

departmental proceedings and continued the proceedings which

the appellant could not attend on account of his ill-health

and financial difficulties which compelled him to shift to

his home-town in Kerala. The respondents were informed by a

number of letters supported by medical certificates about

his illness with a request for staying the departmental

proceedings and await the result of the criminal case. But

the Inquiry Officer rejected the request and recorded his

findings on 10.5.1986 holding the appellant guilty. These

findings were accepted by the Disciplinary Authority and by

order dated 7th June 1986, the appellant was dismissed from

service.

On 3rd of February, 1987, judgment in the criminal

case was pronounced and the appellant was acquitted with the

categorical findings that the prosecution had failed to

establish its case. This judgment was communicated by the

appellant to the respondents on 12.2.1987 with a request

that he may be reinstated, but respondents, by their letter

dated 3.3.1987, rejected the request on the ground that the

appellant had already been dismissed from service on the

completion of the departmental inquiry which was conducted

independently of the criminal case and, therefore, the

judgment passed by the Magistrate was of no consequence.

The order of dismissal passed by the respondents was

challenged in a departmental appeal which was rejected by

the Appellate Authority on 22.7.1987.

It was, at this stage, that the appellant approached

the High Court through a Writ Petition under Article 226 of

the Constitution challenging the validity of the order of

dismissal on various grounds, including that the

departmental proceedings based on the same set of facts on

which the criminal case was launched against him, ought to

have been stayed awaiting the result of the criminal case.

It was also pointed out that since the appellant had already

been acquitted and the prosecution case against the

appellant based on the "raid and recovery" which also

constituted the basis of the departmental proceedings, had

not been found to be true, he was entitled to be reinstated

in service.

The Writ Petition was allowed by a Single Judge of the

High Court on 26.9.1995 with the finding that the

departmental proceedings and the criminal case being based

on the same set of facts, departmental proceedings should

have been stayed till the result of the criminal case and

since in the criminal case the appellant had already been

acquitted and the prosecution case was not found

established, the respondents could not legally refuse

reinstatement or the consequent back-wages to the appellant.

While directing reinstatement of the appellant, the High

Court gave liberty to respondents to initiate fresh

proceedings against the appellant after perusing the

judgment passed in the criminal case.

This judgment was, however, set aside by the Division

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Bench on 17th September, 1997 in a letters patent appeal

filed by the respondents. It is this judgment which is

under appeal before us.

Learned counsel for the appellant has contended that

the respondents having themselves launched the criminal case

were not justified in proceeding with the departmental

inquiry which was based on the same set of facts and ought

to have stayed those proceedings till the conclusion of the

criminal case. Since the basis of action in both the cases,

namely, the departmental proceedings and the criminal case,

was the raid conducted by the Superintendent of Police at

the residence of the appellant from where a recovery was

also allegedly made, the departmental proceedings were

liable to be stayed as the facts and the evidence in both

the proceedings were common. In these circumstances, the

appellant, it is contended, was justified in requesting the

respondents to stay the departmental proceedings and on the

refusal of the respondents to stay the proceedings, the

appellant was justified in not participating in those

proceedings as his defence was likely to be prejudiced. It

is also contended that the appellant was ill and for that

reason also the departmental proceedings ought to have been

stayed till he had completely recovered. It is also

submitted that the appellant who had been placed under

suspension was not being paid the Subsistence Allowance with

the result that he fell into serious financial difficulties

and could not undertake any journey from his home-town in

Kerala to Kolar Gold Fields in Karnataka for participating

in the departmental proceedings. The Division Bench, it is

contended, was not justified in interfering with the

judgment passed by the Single Judge who had found it as a

positive fact that the departmental proceedings and the

criminal case were based on the same set of facts and the

evidence in both the cases was common.

Learned counsel for the respondents has, however,

contended that the respondents were under no obligation to

stay the departmental proceedings and await the result of

the criminal case as there was no legal bar in holding the

departmental proceedings simultaneously with the proceedings

in the criminal case, particularly as the level of proof in

both the proceedings is different and the purpose with which

the departmental proceedings are conducted is also not

identical with the purpose with which the criminal case is

prosecuted for an offence committed by the employee.

This question, as observed earlier, is of a perennial

nature and has arisen more often than not in spite of the

judicial pronouncements, specially by this Court, having

settled the question and provided the answer. Still, the

problem is raised either by the employer or by the employee

in one or the other form. In the instant case, the order of

dismissal had already been passed before the decision of the

criminal case which ultimately resulted in the acquittal of

the appellant. Whether the acquittal coupled with other

circumstances, specially ex-parte proceedings, of the case,

will have the effect of vitiating the departmental

proccedings or the order of dismissal passed against the

appellant, is the question which is to be considered in this

appeal.

As we shall presently see, there is a consensus of

judicial opinion amongst the High Courts whose decisions we

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do not intend to refer in this case, and the various

pronouncements of this Court, which shall be copiously

referred to, on the basic principle that proceedings in a

criminal case and the departmental proceedings can proceed

simultaneously with a little exception. As we understand,

the basis for this proposition is that proceedings in a

criminal case and the departmental proceedings operate in

distinct and different jurisdictional areas. Whereas in the

departmental proceedings, where a charge relating to

misconduct is being investigated, the factors operating in

the mind of the Disciplinary Authority may be many such as

enforcement of discipline or to investigate the level of

integrity of the delinquent or the other staff, the standard

of proof required in the those proceedings is also different

than that required in a criminal case. While in the

departmental proceedings the standard of proof is one of

preponderance of the probabilities, in a criminal case, the

charge has to be proved by the prosecution beyond reasonable

doubts. The little exception may be where the departmental

procedings and the criminal case are based on the same set

of facts and the evidence in both the proceedings is common

without there being a variance.

The first decision of this Court on the question was

rendered in Delhi Cloth & General Mills Ltd. vs. Kushal

Bhan 1960 (3) SCR 227 = AIR 1960 SC 806 = 1960 LLJ 520 (SC),

in which it was observed as under :

"It is true that very often employers stay

enquiries pending the decision of the criminal

trial courts and that is fair; but we cannot say

that principles of natural justice require that an

employer must wait for the decision at least of

the criminal trial court before taking action

against an employee. In Bimal Kanta Mukherjee vs.

M/s Newsman's Printing Works 1956 LAC 188, this

was the view taken by the Labour Appellate

Tribunal. We may, however, add that if the case

is of a grave nature or involves questions of fact

or law, which are not simple, it would be

advisable for the employer to await the decision

of the trial court, so that the defence of the

employee in the criminal case may not be

prejudiced."

This was followed by Tata Oil Mills Company Ltd. vs.

Workmen 1964(7) SCR 555 = AIR 1965 SC 155, in which it was,

inter alia, laid down as under :

"There is yet another point which remains to be

considered. The Industrial Tribunal appears to

have taken the view that since criminal

proceedings had been started against Raghavan, the

domestic enquiry should have been stayed pending

the final disposal of the said criminal

proceedings. As this Court has held in the Delhi

Cloth and General Mills Ltd. vs. Kushal Bhan, it

is desirable that if the incident giving rise to a

charge framed against a workman in a domestic

enquiry is being tried in a criminal court, the

employer should stay the domestic enquiry pending

the final disposal of the criminal case."

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The question cropped up again with a new angle in Jang

Bahadur Singh vs. Baij Nath Tiwari 1969 (1) SCR 134 = AIR

1969 SC 30, as it was contended that initiation of

disciplinary proceedings during the pendency of a criminal

case on the same facts amounted to contempt of court. This

plea was rejected and the Court observed as under:

"The issue in the disciplinary proceedings is

whether the employee is guilty of the charges on

which it is proposed to take action against him.

The same issue may arise for decision in a civil

or criminal proceeding pending in a court. But

the pendency of the court proceeding does not bar

the taking of disciplinary action. The power of

taking such action is vested in the disciplinary

authority. The civil or criminal court has no

such power. The initiation and continuation of

disciplinary proceedings in good faith is not

calculated to obstruct or interfere with the

course of justice in the pending court proceeding.

The employee is free to move the court for an

order restraining the continuance of the

disciplinary proceedings. If he obtains a stay

order, a wilful violation of the order would of

course amount to contempt of court. In the

absence of a stay order the disciplinary authority

is free to exercise its lawful powers."

These decisions indicate that though it would not be

wrong in conducting two parallel proceedings, one by way of

disciplinary action and the other in the criminal court,

still it would be desirable to stay the domestic inquiry if

the incident giving rise to a charge framed against the

employee in a domestic inquiry is being tried in a criminal

court. The case law was reviewed by this Court in

Kusheshwar Dubey vs. M/s Bharat Coking Coal Ltd. & Ors.

1988 (4) SCC 319 = 1988 Supp. (2) SCR 821 = AIR 1988 SC

2118 and it was laid down as under :

"The view expressed in the three cases of this

Court seem to support the position that while

there could be no legal bar for simultaneous

proceedings being taken, yet, there may be cases

where it would be appropriate to defer

disciplinary proceedings awaiting disposal of the

criminal case. In the latter class of cases, it

would be open to the delinquent employee to seek

such an order of stay or injunction from the

court. Whether in the facts and circumstances of

particular case there should or should not be such

simultaneity of the proceedings would then receive

judicial consideration and the court will decide

in the given circumstances of particular case as

to whether the disciplinary proceedings should be

interdicted, pending criminal trial. As we have

already stated that it is neither possible nor

advisable to evolve a hard and fast, strait-jacket

formula valid for all cases and of general

application without regard to the particularities

of the individual situation. For the disposal of

the present case, we do not think it necessary to

say anything more, particularly when we do not

intend to lay down any general guideline."

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The Court further observed as under :

"In the instant case, the criminal action and the

disciplinary proceedings are grounded upon the

same set of facts. We are of the view that the

disciplinary proceedings should have been stayed

and the High Court was not right in interfering

with the trial court's order of injunction which

had been affirmed in appeal.

" Then came the decision in Nelson Motis vs. Union of

India & Ors. (1992) 4 SCC 711 = 1992 Supp.(1) SCR 325 = AIR

1992 SC 1981, which laid down that the disciplinary

proceedings can be legally continued even where the employee

is acquitted in a criminal case as the nature and proof

required in a criminal case are different from those in the

departmental proceedings. Besides, the Court found that the

acts which led to the initiation of departmental proceedings

were not exactly the same which were the subject matter of

the criminal case. The question was not considered in

detail. The Court observed :

"So far the first point is concerned, namely

whether the disciplinary proceedings could have

been continued in the face of the acquittal of the

appellant in the criminal case, the plea has no

substance whatsoever and does not merit a detailed

consideration. The nature and scope of a criminal

case are very different from those of a

departmental disciplinary proceeding and an order

of acquittal, therefore, cannot conclude the

departmental proceedings. Besides, the Tribunal

has pointed out that the acts which led to the

initiation of the departmenal disciplinary

proceeding were not exactly the same which were

the subject matter of the criminal case.

(Emphasis supplied)

The entire case law was reviewed once again by this

Court in State of Rajasthan vs. B.K. Meena & Ors. (1996)

6 SCC 417 = AIR 1997 SC 13 = 1997 (1) LLJ 746 (SC), wherein

it was laid down as under :

"It would be evident from the above decisions that

each of them starts with the indisputable

proposition that there is no legal bar for both

proceedings to go on simultaneously and then say

that in certain situation, it may not be

'desirable', 'advisable' or 'appropriate' to

proceed with the disciplinary enquiry when a

criminal case is pending on identical charge. The

staying of disciplinary proceedings, it is

emphasised, is a matter to be determined having

regard to the facts and circumstances of a given

case and that no hard and fast rules can be

enunciated in that behalf. The only ground

suggested in the above decisions as constituting a

valid ground for staying the disciplinary

proceedings is that 'the defence of the employee

in the criminal case may not be prejudiced.' This

ground has, however, been hedged in by providing

further that this may be done in cases of grave

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nature involving questions of fact and law. In

our respectful opinion, it means that not only the

charges must be grave but that the case must

involve complicated questions of law and fact.

Moreover, 'advisability', 'desirability' or

'propriety', as the case may be, has to be

"determined in each case taking into consideration

all the facts and circumstances of the case. The

ground indicated in D.C.M. (AIR 1960 SC 806) and

Tata Oil Mills (AIR 1965 SC 155) is also not an

invariable rule. It is only a factor which will

go into the scales while judging the advisability

or desirability of staying the disciplinary

proceedings. One of the contending considerations

is that the disciplinary enquiry cannot be - and

should not be - delayed unduly. So far as

criminal cases are concerned, it is well known

that they drag on endlessly where high officials

or persons are involved. They get bogged down on

one or the other ground. They hardly ever reach a

prompt conclusion. That is the reality in spite

of repeated advice and admonitions from this Court

and the High Courts. If a criminal case is unduly

delayed that may itself be a good ground for going

ahead with the disciplinary enquiry even where the

disciplinary proceedings are held over at an

earlier stage. The interests of administration

and good government demand that these proceedings

are concluded expeditiously. It must be

remembered that interests of administration demand

that undesirable elements are thrown out and any

charge of misdemeanour is inquired into promptly.

The disciplinary proceedings are meant not really

to punish the guilty but to keep the

administrative machinery unsullied by getting rid

of bad elements. The interest of the delinquent

officer also lies in a prompt conclusion of the

disciplinary proceedings. If he is not guilty of

the charges, his honour should be vindicated at

the earlist possible moment and if he is guilty,

he should be dealt with promptly according to law.

It is not also in the interest of administration

that persons accused of serious misdemeanour

should be continued in office indefinitely, i.e.,

for long periods awaiting the result of criminal

proceedings. It is not in the interest of

administration. It only serves the interest of

the guilty and dishonest. While it is not

possible to enumerate the various factors, for and

against the stay of disciplinary proceedings, we

found it necesasry to emphasise some of the

important considerations in view of the fact that

very often the disciplinary proceedings are being

stayed for long periods pending criminal

proceedings. Stay of disciplinary proceedings

cannot be, and should not be, a matter of course.

All the relevant factors, for and against, should

be weighed and a decision taken keeping in view of

the various principles laid down in the decisions

referred to above."

This decision has gone two steps further to the

earlier decisions by providing :

1. The 'advisability', 'desirability' or

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'propriety' of staying the departmental

proceedings "go into the scales while judging the

advisability or desirability of staying the

disciplinary proceedings" merely as one of the

factors which cannot be considered in isolation of

other circumstances of the case. But the charges

in the criminal case must, in any case, be of a

grave and serious nature involving complicated

questions of fact and law.

(2) One of the contending considerations would be

that the disciplinary enquiry cannot -- and should

not be -- delayed unduly. If the criminal case is

unduly delayed, that may itself be a good ground

for going ahead with the disciplinary enquiry even

though the disciplinary proceedings were held over

at an earlier stage. It would not be in the

interests of administration that persons accused

of serious misdemeanour should be continued in

office indefinitely awaiting the result of

criminal proceedings.

In another case, namely, Depot Manager, Andhra Pradesh

State Road Transport Corporation vs. Mohd. Yousuf Miyan

(1997) 2 SCC 699 = AIR 1997 SC 2232, again it was held that

there is no bar to proceed simultaneously with the

departmental inquiry and trial of a criminal case unless the

charge in the criminal case is of a grave nature involving

complicated questions of fact and law.

The conclusions which are deducible from various

decisions of this Court referred to above are :

(i) Departmental proceedings and proceedings in a

criminal case can proceed simultaneously as there is no bar

in their being conducted simultaneously, though separately.

(ii) If the departmental proceedings and the criminal

case are based on identical and similar set of facts and the

charge in the criminal case against the delinquent employee

is of a grave nature which involves complicated questions of

law and fact, it would be desirable to stay the departmental

proceedings till the conclusion of the criminal case.

(iii) Whether the nature of a charge in a criminal

case is grave and whether complicated questions of fact and

law are involved in that case, will depend upon the nature

of offence, the nature of the case launched against the

employee on the basis of evidence and material collected

against him during investigation or as reflected in the

charge sheet.

(iv) The factors mentioned at (ii) and (iii) above

cannot be considered in isolation to stay the Departmental

proceedings but due regard has to be given to the fact that

the departmental proceedings cannot be unduly delayed.

(v) If the criminal case does not proceed or its

disposal is being unduly delayed, the departmental

proceedings, even if they were stayed on account of the

pendency of the criminal case, can be resumed and proceeded

with so as to conclude them at an early date, so that if the

employee is found not guilty his honour may be vindicated

and in case he is found guilty, administration may get rid

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of him at the earliest.

In the instant case, the Superintendent of Police had

raided the residential premises of the appellant and had

recovered a mining sponge gold ball weighing 4.5 grams and

1276 grams of 'gold bearing sand'. It was on this basis

that criminal case was launched against him. On the same

set of facts, constituting the raid and recovery,

departmental proceedings were initiated against the apellant

as the "recovery" was treated to be a 'misconduct.' On the

service of the charge sheet, the appellant raised an

objection that the departmental proceedings may be stayed as

the basis of these proceedings was the raid conducted at his

residence on which basis a criminal case had already been

launched against him. He requested that the decision of the

criminal case may be awaited, but his request was turned

down. The request made a second time for that purpose also

met the same fate. When the appellant approached the High

Court, liberty was given to the respondents to stay the

departmental proceedings if they considered it appropriate

but they were directed to dispose of the appellant's appeal

against the order by which he was placed under suspension.

The order of the High Court had no effect on the respondents

and they decided to continue with the departmental

proceedings which could not be attended by the appellant as

he informed the Inquiry Officer that he was ill. His

request for adjournment of the departmental proceedings on

that ground was not acceded to and the proceedings continued

ex-parte against him. He was ultimately found guilty of the

charges and was dismissed from service.

Learned counsel for the appellant also contended that

during the period of suspension the respondents had not paid

him the Subsistence Allowance with the result that he could

not undertake a journey from his home-town in Kerala to

Kolar Gold Fields in Karnataka where the departmental

proceedings were being held. This plea has not been

accepted by the High Court on the ground that it was not

raised before the Inquiry Officer and it was not pleaded

before him that it was on account of non- payment of

Subsistence Allowance that the appellant could not go to

Kolar Gold Fields for participating in the disciplinary

proceedings.

Before us, it is not disputed on behalf of the

respondents nor was it disputed by them before the High

Court, that Subsistence Allowance was not paid to the

appellant while the proceedings against him were being

conducted at the departmental level.

To place an employee under suspension is an

unqualified right of the employer. This right is conceded

to the employer in service jurisprudence everywhere. It has

even received statutory recognition under service rules

framed by various authorities, including Govt. of India and

the State Governments. (See: for example, Rule 10 of

Central Civil Services (Classification, Control & Appeal)

Rules. Even under the General Clauses Act, this right is

conceded to the employer by Section 16 which, inter alia,

provides that power to appoint includes power to suspend or

dismiss.

The order of suspension does not put an end to an

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employee's service and he continues to be a member of the

service though he is not permitted to work and is paid only

Subsistence Allowance which is less than his salary. (See:

State of M.P. vs. State of Maharashtra, 1977 (2) SCR 555 =

(1977) 2 SCC 288 = AIR 1977 SC 1466).

Service Rules also usually provide for payment of

salary at a reduced rate during the period of suspension.

(See: Fundamental Rule 53). This constitutes the

"Subsistence Allowance". If there is no provision in the

Rules applicable to a particular class of service for

payment of salary at a reduced rate, the employer would be

liable to pay full salary even during the period of

suspension.

Exercise of right to suspend an employee may be

justified on facts of a particular case. Instances,

however, are not rare where officers have been found to be

afflicted by "suspension syndrome" and the employees have

been found to be placed under suspension just for nothing.

It is their irritability rather than the employee's trivial

lapse which has often resulted in suspension. Suspension

notwithstanding, non-payment of Subsistence Allowance is an

inhuman act which has an unpropitious effect on the life of

an employee. When the employee is placed under suspension,

he is demobilised and the salary is also paid to him at a

reduced rate under the nick name of 'Subsistence Allowance',

so that the employee may sustain himself. This Court, in

O.P. Gupta vs. Union of India & Ors. (1987) 4 SCC 328

made the following observations with regard to Subsistence

Allowance :

"An order of suspension of a government servant

does not put an end to his service under the

government. He continues to be a member of the

service in spite of the order of suspension. The

real effect of suspension as explained by this

Court in Khem Chand v. Union of India is that he

continues to be a member of the government service

but is not permitted to work and further during

the period of suspension he is paid only some

allowance -- generally called subsistence

allowance -- which is normally less than the

salary instead of the pay and allowances he would

have been entitled to if he had not been

suspended. There is no doubt that an order of

suspension, unless the departmental inquiry is

concluded within a reasonable time, affects a

government servant injuriously. The very

expression 'subsistence allowance' has an

undeniable penal significance. The dictionary

meaning of the word 'Subsist' as given in Shorter

Oxford English Dictionary, Vol.II at p. 2171 is

"to remain alive as on food; to continue to

exist". "Subsistence" means -- means of

supporting life, especially a minimum livelihood."

(Emphasis supplied)

If, therefore, even that amount is not paid, then the

very object of paying the reduced salary to the employee

during the period of suspension would be frustrated. The

act of non-payment of Subsistence Allowance can be likened

to slow-poisoning as the employee, if not permitted to

sustain himself on account of non-payment of Subsistence

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Allowance, would gradually starve himself to death.

On joining Govt. service, a person does not mortgage

or barter away his basic rights as a human being, including

his fundamental rights, in favour of the Govt. The Govt.,

only because it has the power to appoint does not become the

master of the body and soul of the employee. The Govt. by

providing job opportunities to its citizens only fulfils its

obligations under the Constitution, including the Directive

Principles of the State Policy. The employee, on taking up

an employment only agrees to subject himself to the

regulatory measures concerning his service. His association

with the Government or any other employer, like

Instrumentalities of the Govt. or Statutory or Autonomous

Corporations etc., is regulated by the terms of contract of

service or Service Rules made by the Central or the State

Govt. under the Proviso to Article 309 of the Constitution

or other Statutory Rules including Certified Standing

Orders. The fundamental rights, including the Right to Life

under Article 21 of the Constitution or the basic human

rights are not surrendered by the employee. The provision

for payment of Subsistence Allowance made in the Service

Rules only ensures non-violation of the right to life of the

employee. That was the reason why this Court in State of

Maharashtra vs. Chanderbhan 1983(3) SCR 337 = 1983 (3) SCC

387 = AIR 1983 SC 803 struck down a Service Rule which

provided for payment of a nominal amount of Rupee one as

Subsistence Allowance to an employee placed under

suspension. This decision was followed in Fakirbhai

Fulabhai Solanki vs. Presiding Officer & Anr. (1986) 3 SCC

131 = 1986(2) SCR 1059 = AIR 1986 SC 1168 and it was held in

that case that if an employee could not attend the

departmental proceedings on account of financial

stringencies caused by non-payment of Subsistence Allowance,

and thereby could not undertake a journey away from his home

to attend the departmental proceedings, the order of

punishment, including the whole proceedings would stand

vitiated. For this purpose, reliance was also placed on an

earlier decision in Ghanshyam Dass Shrivastva vs. State of

Madhya Pradesh (1973) 1 SCC 656 = AIR 1973 SC 1183.

The question whether the appellant was unable to go to

Kolar Gold Fields to participate in the inquiry proceedings

on account of non-payment of Subsistence Allowance may not

have been raised before the Inquiry Officer, but it was

positively raised before the High Court and has also been

raised before us. Since it is not disputed that the

Subsistence Allowance was not paid to the appellant during

the pendency of the departmental proceedings, we have to

take strong notice of it, particularly as it is not

suggested by the respondents that the appellant had any

other source of income.

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,

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the findings recorded by the Inquiry Officer at such

proceedings, which were held ex-parte, stand vitiated.

There is yet another reason for discarding the whole

of the case of the respondents. As pointed out earlier, 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.

For the reasons stated above, 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. The learned Single Judge has also given liberty

to the respondents to initiate fresh disciplinary

proceedings. In the peculiar citcumstances of the case,

specially having regard to the fact that the appellant is

undergoing this agony since 1985 despite having been

acquitted by the criminal court in 1987, we would not direct

any fresh departmental inquiry to be instituted against him

on the same set of facts. The appellant shall be reinstated

forthwith on the post of Security Officer and shall also be

paid entire arrears of salary, together with all allowances

from the date of suspension till his reinstatement, within

three months. The appellant would also be entitled to his

cost which is quantified as Rs.15,000/-.