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CASE NO.:

Appeal (civil) 2582 of 2006

PETITIONER:

G.M. Tank

RESPONDENT:

State of Gujarat & Anr.

DATE OF JUDGMENT: 10/04/2006

BENCH:

Dr. AR. Lakshmanan & R.V. Raveendran

JUDGMENT:

J U D G M E N T

(Arising out of S.L.P. (Civil) No. 8910 OF 2004)

Dr. AR. Lakshmanan, J.

Leave granted.

This appeal is directed against the final judgment and order dated 18.8.2003 in

Letters Patent Appeal No. 1085 of 2002 filed by the appellant herein. By its impugned

final judgment, the High Court dismissed the L.P.A. filed by the appellant herein.

Brief facts:

The appellant joined the service in 1953 as an Overseer. The appellant was

regularly submitting his property return showing all his movable and immovable

properties. As per the Department, the movable and immovable properties were

disproportionate to his known sources of income. The Anti-Corruption Bureau carried

out an investigation against the appellant and submitted a report and on the basis of

the said report, a charge sheet dated 20.2.1979 was issued alleging that the appellant

had illegally accumulated the excess income by way of gratification. The appellant

submitted his explanation on 15.5.1979 and denied the allegations as well as charges

made in the charge sheet. A departmental enquiry was ordered and as per

Departmental Enquiry Reported dated 31.3.1980, the appellant was found guilty of the

charge. The respondent by order dated 21.10.1982 passed an order of dismissal from

the service as punishment.

Against the said dismissal order, the appellant filed a writ petition before the

High Court. The learned single Judge concluded that there is sufficient evidence

against the appellant and dismissed the petition. Against the order of the learned

single Judge, the appellant preferred L.P.A. and raised the relevant contentions. The

Division Bench dismissed the L.P.A. by confirming the order of the learned single

Judge. The said decision is challenged in this appeal by special leave.

The charges made against the appellant in the departmental enquiry is

reproduced hereunder:

"That total income from wages, interest, house rent, insurance policy

amount etc. of Sh. Tank for the period from the year 1953 till June

1978 comes to Rs.2,75,328.00. Against that, total expenses of Sh.

Tank including expenses, saving, movable as well as immovable

properties, comes to Rs.5,29,509.14. Thus, an amount of

Rs.2,54,180.00 has been found very much in excess than his known

and legal source of income and it appears that the said amount has

been earned by him through bribe, corruption and illegal gratification

and, therefore, he is responsible/liable for the breach of Rule 3(1) of

Gujarat Civil Services Conduct Rules, 1971."

CRIMINAL CASE UNDER THE PREVENTION OF CORRUPTION ACT

The Director of Anti-Corruption Bureau had entrusted the enquiry to Mr. V.B.

Raval, Police Inspector, Anti-Corruption Bureau, Kachchh at Bhuj. Mr. V.B. Raval had

enquired into the matter and submitted an Enquiry Report on 8.9.1979. It showed that

the total income of the accused out of his salary, interest, rent and insurance policies

etc. from April, 1953 to June 1978 was Rs.2,75,328.00. On the other side, the total

expenditure, savings and movable and immovable properties of the accused was

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Rs.5,29,509.14. Thus, the amount of Rs.2,54,180.00 was more than the known source

of income of the accused leading to the presumption that the said amount was obtained

by him by illegal and corrupt means. On the basis of the said report of Mr. V.B. Raval,

his successor (P.I. \026 Mr. H.D. Sharma) lodged the criminal complaint against the

appellant in Special Case No. 6 of 1987 before the Special Judge, Kachchh at Bhuj for

the alleged offence punishable under Section 5(1)(e) read with Section 5(2) of the

Prevention of Corruption Act, 1947 (hereinafter referred to as "the P.C. Act').

The Special Judge had honourably acquitted the appellant of the offence

punishable under Section 5(1)(e) read with Section 5(2) of the Act by holding that the

prosecution has failed to prove the charges levelled against the appellant and thus the

appellant cannot be held to be guilty of the said offence. This acquittal is by way of

complete exoneration and not by giving benefit of doubt which is evident from the

judgment of the Special Judge. The Division Bench, however, overlooked this fact and

the additional fact that on the basis of very report submitted by Mr. V.B. Raval, the

Special Judge had acquitted the appellant.

It is also pertinent to notice that the respondents have not challenged the order

passed by the Special Judge acquitting the appellant before any forum and that,

therefore, the order passed by the Special Judge has reached its finality and has

become final and conclusive.

We heard Mr. L. Nageshwara Rao, learned senior counsel, assisted by Mr.

Sanjay Kapur, learned counsel, appearing for the appellant and Mr. Maulik Nanavati,

learned counsel, appearing for the respondents.

We have been taken through the proceedings in the departmental enquiry,

enquiry report submitted and the orders passed thereon and also the proceedings

initiated by the respondents before the Special Court under the provisions of the P.C.

Act under Section 5(1)(e) read with Section 5(2) of the said Act.

We have carefully read the order passed by the learned single Judge in the writ

petition and as affirmed by the learned Division Bench and the judgment passed by the

learned Special Judge in the Criminal proceedings.

Mr. L. Nageshwara Rao, learned senior counsel, appearing for the appellant,

made the following submissions:

According to him, the appellant being a Government servant submitted his yearly

property return regarding his movable and immovable properties. The return for the

year 1975 was verified by the Department and being of the view that the appellant had

movable and immovable properties worth more than known sources of his income and

being dissatisfied with the explanation of the appellant, the Government requested the

Director of Anti-Corruption Bureau to enquire into the matter vide its letter dated

11.1.1977 and on the basis of the report of the Investigating Officer, the Department

had issued a charge-sheet upon the appellant. On the same material, criminal

proceedings were also initiated under Section 5(1)(e) of the P.C. Act, the charge being

the same. On the same basis of the same charges and the same evidence, the

Department passed the order of dismissal on 21.10.1982 whereas the criminal Court

honourably acquitted the appellant vide its order dated 30.1.2002.

Learned senior counsel made the following submissions:

a) that there is no evidence to hold the appellant guilty or delinquent for

the charges framed against him in the departmental enquiry;

b) that the acquittal of the appellant in the special case is a relevant

factor, as the appellant has been acquitted on merits and the acquittal

is clean and not based on benefit of doubt or any Technical

proposition. The same evidence was led in the departmental enquiry

and, therefore, the dismissal order is bad in law.

c) that the Enquiry Officer has given finding of fact in favour of the

appellant and despite that the Enquiry Officer has found the appellant

guilty of the charges;

d) the additional fact was also brought to the notice of the Division

Bench that the special Court has honourably acquitted the appellant

of the same charge on 30.1.2002 but the Bench has not considered

the same. The Division Bench failed to note the difference between

an exoneration and acquittal by giving benefit of doubt. It routinely

held that the writ court does not re-appreciate or re-examine the

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evidence led before the Enquiry Officer and that unlike in criminal

trial, the degree of proof in the domestic enquiry is restricted to

preponderance of probability and not beyond reasonable doubt. The

L.P.A. was accordingly dismissed and the order of the learned single

Judge was affirmed.

(e) Since the appellant has been exonerated of the charge, the appellant

is entitled to reinstatement with full salary, allowance and subsequent

promotions. In support of his contention, Mr. L.N. Rao relied on the

following judgments:

1. Capt. M. Paul Anthony vs. Bharat Gold Mines Ltd. & Anr. ,

(1999) 3 SCC 679 (two Judges)

2. Union of India vs. Jaipal Singh, (2004) 1 SCC 121 (two Judges)

3. Commissioner of Police, New Delhi vs. Narender Singh, 2006(4)

Scale 161= 2006(4)JT 328 (two Judges)

4. R.P. Kapur vs. Union of India & Anr. AIR 1964 SC 787 (five

Judges)

5. Corporation of the City of Nagpur, Civil Lines, Nagpur & anr. Vs.

V. Ramachandra G. Modak & Ors., AIR 1984 SC 626 (three

Judges)

Mr. Maulick Nanavati, learned counsel, appearing for the State submitted that

upon the investigation it was found that the total income of the appellant out of the

salary, interest, rent etc. could not be sufficient to acquire the property owned by the

appellant and that the total value of the movable and immovable and other properties

acquired by the appellant had been found more than the known source of income by

the appellant. It was further contended that the appellant was prosecuted for the

offence punishable under Section 5(1)(e) read with Section 5(2) of the P.C. Act and that

the appellant came to be acquitted by the learned Special Judge and that unlike in

criminal trial, the degree of proof in the domestic enquiry is restricted to prepondrance

of probability and not beyond reasonable doubt and that the acquittal in a criminal trial

on the charges of corruption under the P.C. Act ipso facto could not be projected as a

weapon to undo the result of a validly held departmental inquiry. Arguing further, the

learned counsel submitted that in the present case the enquiry report is not casual, but

well-written, balanced and making critical evaluation of all the evidence of the witnesses

and documents and it cannot be said that the report is based on no evidence and such

a submission made by the learned senior counsel appearing for the appellant cannot be

accepted when one gets into the reality of the factual profile so meticulously

propounded in the Enquiry report by the Enquiry Officer which is based on evidence

and it is rightly accepted by the disciplinary authority and justifiably affirmed by the

learned single Judge and again accepted by the Division Bench. He, therefore,

submitted that the acquittal in 2002 will have no bearing on the punishment imposed as

per Rules and the appeal on hand is totally merit-less and deserves to be dismissed at

the threshold. In concluding, he also submitted that the scope of interference by the

High Court is very limited and that the writ court does not re-appreciate or re-examine

the evidence led before the Enquiry Officer for the simple reason that this Court while

sitting and entertaining a petition under Article 226 of the Constitution of India is not an

appellate authority.

In support of his contention, Mr. Maulick Nanavati placed reliance on the

following decisions:

1. Anil Kumar Nag vs. General Manager (PJ), Indian Oil Corporation Ltd.,

Haldia & Ors., (2005) 7 SCC 764 (three Judges)

2. Depot Manager, A.P. State Road Transport Corporation vs. Mohd.

Yousuf Miya & Ors., (1997) 2 SCC 699 (three Judges)

3. State of Andhra Pradesh & Ors. vs. S. Sree Rama Rao, AIR 1963 SC

1723 (three Judges)

4. Krishnakali Tea Estate vs. Akhil Bharatiya Chah Mazdoor Sangh &

Anr., (2004) 8 SCC 200 (three Judges)

On the above pleadings and the arguments advanced by the counsel appearing

on either side, the following questions of law arise for consideration for this Court:

1. Whether in the case of no evidence, the employee can be dismissed

from service?

2. Whether acquittal, absolutely on merits amounting to clear

exoneration of the appellant by the Special Court under the P.C. Act

does ipso facto absolve the appellant from the liability under the

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disciplinary jurisdiction when the charges leveled against the

appellant in the departmental proceedings and the criminal

proceedings are grounded on the same set of facts, charges,

circumstances and evidence.

We have given our anxious and thoughtful consideration to the rival submissions

made by the counsel on either side. We have also carefully considered the judgments

impugned in this case and also of the order of acquittal passed by the Special Judge in

the proceedings initiated against the appellant under the P.C. Act. We have already

reproduced the charge framed in the disciplinary proceedings and charge framed in the

criminal proceedings. A reading of both the charges would clearly go to show that both

the charges are grounded upon the same set of facts and evidence and also pertains to

the known source of income of the accused and the presumption raised that that the

said amount was obtained by him by illegal and corrupt means. In the departmental

enquiry, the Government appointed Mr. V.B. Raval, who was the Investigating Officer in

the Anti Corruption Bureau as the Presenting Officer. In the Enquiry proceedings, the

Department examined the relatives of the appellant, namely, the wife, father-in-law,

brother-in-law and the brother of the appellant. The Enquiry Officer submitted his report

at the end of the enquiry and held that the appellant had property disproportionate to

the known source of income which, according to the Enquiry Officer, shows that the

appellant has received illegal gratification and the charge against the appellant about

the illegal possession was proved. Thereafter, the Deputy Secretary, Irrigation

Department issued a show cause notice dated 4.6.1980 to the appellant to show cause

against the proposed dismissal. The appellant replied to the show cause notice by his

letter dated 27.9.1980. Thereafter, the Government ordered appellant's dismissal from

service w.e.f. 15.10.1982. Though the Enquiry Officer submitted his report and

recorded some findings in favour of the appellant, the finding rendered that the

appellant was guilty for the alleged charges. It was submitted on behalf of the appellant

before the learned single Judge and the Division Bench that there is no warrant for any

action against the appellant and all the proceedings are contrary to the principles of

natural justice and so is null and void and that the order of the dismissal is passed

without any material basis, application of mind and is arbitrarily on suspicion. It was

submitted that the conclusion is incompatible with facts and that no reasonable man

can arrive at such a conclusion in the fact of the findings referred to in this behalf. It

was further submitted that this is a case of no evidence and, therefore, the High Court

ought to have entertained this petition under Art. 226/227 of the Constitution of India.

Before the learned single Judge, the learned counsel for the appellant has also relied

on the Administrative Law, 5th Edn. by Prof. H.W.R. Wade as an authority wherein

under the Heading "findings, evidence and jurisdiction", the author has discussed

finding of fact-no evidence principle. However, the High Court rejected the submission

made by the learned counsel for the appellant on the ground that the witnesses

examined by the appellant are not independent witnesses of having no interest and that

they are very interested witnesses as they are very close relatives and in-laws of the

appellant and, therefore, the Enquiry Officer has rightly examined the version of those

witnesses with care and caution and has rightly not accepted the same as

unimpeachable evidence in the absence of concrete documentary evidence. In the

result, the learned single Judge rejected the writ petition and on the same principle, the

learned Judges of the Division Bench have also affirmed the view expressed by the

learned single Judge.

In this context, it is useful to refer to the judgment of the Special Court. An

offence was registered under Section 5(1)(e) read with Section 5(2) of the P.C. Act

against the appellant. We have already noticed the charge framed by the criminal

Court. The appellant explained before the Court that his father-in-law and brother-in-

law are very much rich and at the time of his marriage, they have given ornaments,

furniture etc. to his wife but it could not be swallowed by the Anti-Corruption Department

and, therefore, a complaint was lodged by the appellant before the police. The plea of

the appellant-accused was recorded as Ex.17 . The appellant pleaded not guilty of the

charge and claimed to be tried. After the prosecution completed, the statement of the

accused was recorded under Section 313 of the Code of Criminal Procedure, 1973

whereby he has given an opportunity to explain each piece of evidence appearing

against him in the prosecution evidence. The explanation furnished by the accused in

the open Court were recorded and placed along with his original statement, Ex.17. The

appellant has stated that he has submitted the written explanation and that should be

taken into consideration. He has further submitted that the departmental proceedings

were held against him on the allegation that he has acquired the property worth more

than his known source of income and that he was serving as an Engineer in the

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Irrigation Department of the Government of Gujarat and that he has also served as

Executive Engineer at Bhuj and that the explanation furnished by the appellant should

have been accepted by the Department. The appellant did not examine any defence

witnesses. The prosecution adduced oral evidence by examining the wife of the

accused, the Investigating Officer, one Deputy Secretary of the Irrigation Department

and the Investigating Officer, Mr. Punwar and Mr. V.B. Rawal and relied upon certain

documents. As already noticed, the accused has been charged for the offence under

Section 5(1)(e) of the P.C. Act which reads as follows:

"Section 5 : Criminal Misconduct:-

(1) A public servant is said to commit the offence of

criminal misconduct:

(a) xxxxxxxxxxxxxxxxxxxxxxxxxxxx

(b) xxxxxxxxxxxxxxxxxxxxxxxxxxxx

(c) xxxxxxxxxxxxxxxxxxxxxxxxxxxx

(d) xxxxxxxxxxxxxxxxxxxxxxxxxxxx

(e) If he or any person on his behalf is in

possession or has, at any time during the

period of his office, been in possession, for

which the public servant cannot satisfactorily

account, of pecuniary resources or property

disproportionate to his known sources of

income."

This provision speaks about public servant. The Special Court after holding that

the appellant was a public servant at the relevant time proceeded to discuss about the

prosecution case that the accused has disproportionate income to his known source of

income. It is seen from the proceedings of the special Court that the main defence of

the accused from the course of his first statement before the department as well as

before the Enquiry Officer Mr. V.B. Raval appears to be that his father-in-law was

extensively rich having huge business, two hotels at Rajkot and huge property and he

has four brothers-in-law who are very affectionate towards the wife of the accused and,

therefore, had gifted cash money as well as articles to her during the course of their

married life. Elaborate discussion was made by the Special Court. The Court held that

the burden of explaining or giving the account of such excess property lies on the

accused but once that burden is discharged, again the prosecution has to prove that

the explanation furnished by him is not satisfactory.

The provisions contained in Section 5(1)(e) is self-contained provision. The first

part of the Section casts a burden on the prosecution and the second on the accused

as stated above. From the words used in clause (e) of Section 5(1) of the P.C. Act it is

implied that the burden is on the accused to account for the sources for the acquisition

of disproportionate assets. As in all other criminal cases wherein the accused is

charged with an offence, the prosecution is required to discharge the burden of

establishing the charge beyond reasonable doubt. The Special Court scrutinized the

evidence led by the prosecution and after an elaborate discussion, the Court held that

the witness Mr. V.B. Raval has categorically admitted that the accused had stated in his

statement about the amounts having been gifted to his wife by his in-laws. It is

pertinent to note that this witness has categorically admitted in his examination-in-chief

itself that he had enquired about the gifts given to other daughters and it was revealed

that those gifts were worth less than what was gifted to the wife of the accused. He has

also admitted during the course of his cross-examination that the father-in-law of the

accused would not have gifted this much amount as shown by the accused to the wife

of the accused. The Court held that such a presumption could not and should not have

been raised by the witness in the absence of concrete evidence. The witness, Mr, V.B.

Raval, has also admitted that the accused has explained that an amount of Rs.25,000/-

was given by his father-in-law. The witness was shown the assessment order

regarding the gift tax issued by the Income Tax Department in respect of the assessee,

the father-in-law of the accused, for the year 1969-70. He was also shown the challan

regarding the payment of gift tax and also other documents. He has admitted that there

is no contradiction in the entries appearing in the pass book and the oral statement

made by the accused as well as his wife as having received those amounts as gifts.

The Court has held that from the evidence, it is clear that the accused had not

suppressed any acquisition of immovable property from his department and therefore,

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under these circumstances, it is difficult to believe that the accused has not

satisfactorily accounted for the said property. The Court also, in conclusion, said that

the Enquiry Officer had conducted the enquiry only one way and had not tried to get the

evidence regarding the explanations furnished by the accused. The Court further held

that the case put forward by the accused was fully supported by his relations and there

was no contradiction in the statements made by them. It is useful to reproduce the

conclusion reached by the Special Court in this case which is as follows:

"In view of this, it becomes clear that the investigation appears

to have been carried or conducted only with the idea in the mind to

charge-sheet the accused for this offence. The account given by the

accused regarding his alleged disproportionate property though is

satisfactorily explained, is wrongly not accepted by the Investigating

Officer and on the contrary the evidence on record categorically shows

that the accused has given satisfactory account of his alleged

disproportionate property.

In this view of the matter, the learned advocate, Mr. Antani, has

rightly argued that there is no evidence to show that the accused had

misused his office or position and that there is ample evidence to

show that the accused had satisfactorily accounted for the alleged

disproportionate property. He has also rightly argued that the Court

should accept the say of the accused and acquit him. This Court is

unable to accept the submission made by the learned prosecutor. Mr.

Buch, that everything was managed by the accused by stating the

transactions as the transactions of gift. On the contrary, from the fact

that the accused had mentioned all these acquisition of property in his

returns, of property submitted to the department it becomes clear that

he has not suppressed anything, and, therefore, the transactions were

quite true and correct. In view of this, point No.3 is answered in the

negative."

It is thus seen that this is a case of no evidence. There is no iota of evidence

against the appellant to hold that the appellant is guilty of having illegally accumulated

excess income by way of gratification. The respondent failed to prove the charges

leveled against the appellant. It is not in dispute that the appellant being a public

servant used to submit his yearly property return relating to his movable and immovable

property and the appellant has also submitted his return in the year 1975 showing his

entire movable and immovable assets. No query whatsoever was ever raised about

the movable and immovable assets of the appellant. In fact, the respondent did not

produce any evidence in support of and/or about the alleged charges levelled against

the appellant.. Likewise, the criminal proceedings were initiated against the appellant

for the alleged charges punishable under the provisions of P.C. Act on the same set of

facts and evidence. It was submitted that the departmental proceedings and the

criminal case are based on identical and similar (verbatim) set of facts and evidence.

The appellant has been honourably acquitted by the competent Court on the same set

of facts, evidence and witness and, therefore, the dismissal order based on same set of

facts and evidence on the departmental side is liable to be set aside in the interest of

justice.

We shall now scan through the judgments on this issue.

In the case of Capt. M. Paul Anthony vs. Bharat Gold Mines Ltd. &

Anr.(supra), the question before this Court was as to whether the departmental

proceedings and the proceedings in a criminal case launched on the basis of the same

set of facts can be continued simultaneously. In Paragraph 34, this Court held as

under :

"34. 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

enquiry officer, a copy of which has been placed before us, indicate

that the charges framed against the appellant were sought to the

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 enquiry officer and the enquiry officer,

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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."

In R.P. Kapur vs. Union of India (supra), a Constitution Bench of

this Court observed:

"If the trial of the criminal charge results in conviction, disciplinary

proceedings are bound to follow against the public servant so

convicted, even in case of acquittal proceedings may follow, where

the acquittal is other than honourable." (emphasis supplied)

In the case of Corporation of the City of Nagpur, Civil Lines, Nagpur & Anr.

Vs. Ramchandra G. Modak & Ors. (supra), the same question arose before this

Court. This Court, in paragraph 6, held as under:

"6. The other question that remains is if the respondents are

acquitted in the criminal case whether or not the departmental inquiry

pending against the respondents would have to 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 honorably and completely exonerated of the

charges it would not be expedient to continue a departmental inquiry

on the very same charges or grounds or evidence, but the fact

remains, however, that merely because the accused is acquitted, the

power of the authority concerned to continue the departmental inquiry

is not taken away nor is its direction (discretion) in any way fettered. "

(emphasis supplied)

The rulings cited by the learned counsel appearing for the respondent are:

In the case of Krishnakali Tea Estate vs. Akhil Bharatiya Chah Mazdoor

Sangh & Anr. , (Supra), it was argued before this Court on behalf of the respondent \026

Sangh that the Labour Court ought not to have brushed aside the finding of the criminal

Court which according to the learned single Judge "honourably" acquitted the accused

workmen of the offence before it. The learned Judges were taken through the

judgment of the Criminal Court. The Bench was of the opinion that the acquittal by the

Criminal Court was `honourable' as it was based on the fact that the prosecution did not

produce sufficient material to establish its charge which was clear from the following

observations found in the judgment of the criminal Court :

"Absolutely in the evidence on record of the prosecution

witnesses I have found nothing against the accused persons. The

prosecution totally fails to prove the charges under Sections 147, 353,

329 IPC."

Before the learned Judges, Paul Anthony's case (supra) was relied on in

regard to the above contentions. The learned Judges held that the decision in Paul

Anthony's case (supra) would not support the respondent therein because in Paul

anthony's case (supra) the evidence led in the criminal case as well as in the

domestic enquiry was one and the same and the criminal case having acquitted the

workmen on the very same evidence and this Court came to the conclusion that the

finding to the contrary on the very same evidence by the domestic enquiry would be

unjust, unfair and rather oppressive. The Bench further held as follows:

"\005\005..It is to be noted that in that case the finding by the

Tribunal was arrived at in an ex parte departmental proceeding. In

the case in hand, we have noticed that before the Labour Court the

evidence led by the management was different from that led by the

prosecution in the criminal case and the materials before the criminal

court and the Labour Court were entirely different. Therefore, it was

open to the Labour Court to have come to an independent conclusion

de hors the findings of the criminal court. But at this stage, it should

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be noted that it is not as if the Labour Court in the instant case was

totally oblivious of the proceedings before the criminal court. The

Labour Court has in fact perused the order of the Judicial Magistrate

and the exhibits produced therein and come to an independent

conclusion that the order of the criminal court has no bearing on the

proceedings before it; which finding of the Labour Court, in our

opinion, is justified."

In the case of Ajit Kumar Nag vs. General Manager (PJ), Indian Oil Corpn.

Limited, Haldia & Ors., (supra) , this Court in paragraph 11 held as under:

"As far as acquittal of the appellant by a criminal court is

concerned, in our opinion, the said order does not preclude the

Corporation from taking an action if it is otherwise permissible. In our

judgment, the law is fairly well settled. Acquittal by a criminal court

would not debar an employer from exercising power in accordance

with Rules and Regulations in force. The two proceedings criminal and

departmental are entirely different. They operate in different fields and

have different objectives. Whereas the object of criminal trial is to inflict

appropriate punishment on the offender, the purpose of enquiry

proceedings is to deal with the delinquent departmentally and to

impose penalty in accordance with service Rules. In a criminal trial,

incriminating statement made by the accused in certain circumstances

or before certain officers is totally inadmissible in evidence. Such strict

rules of evidence and procedure would not apply to departmental

proceedings. The degree of proof which is necessary to order a

conviction is different from the degree of proof necessary to record the

commission of delinquency. The rule relating to appreciation of

evidence in the two proceedings is also not similar. In criminal law,

burden of proof is on the prosecution and unless the prosecution is

able to prove the guilt of the accused 'beyond reasonable doubt', he

cannot be convicted by a court of law. In departmental enquiry, on the

other hand, penalty can be imposed on the delinquent officer on a

finding recorded on the basis of 'preponderance of probability'.

Acquittal of the appellant by a Judicial Magistrate, therefore, does not

ipso facto absolve him from the liability under the disciplinary

jurisdiction of the Corporation. We are, therefore, unable to uphold the

contention of the appellant that since he was acquitted by a criminal

court, the impugned order dismissing him from service deserves to be

quashed and set aside."

This Court in the case of Depot Manager, A.P. State Road Transport Corpn.

Vs. Mohd. Yousuf Miya & Ors., (supra), in paragraph 8 held as under:

"The purpose of departmental enquiry and of prosecution are

two different and distinct aspects. The criminal prosecution is

launched for an offence for violation of a duty, the offender owes to the

society or for breach of which law has provided that the offender shall

make satisfaction to the public. So crime is an act of commission in

violation of law or of omission of public duty. The departmental

enquiry is to maintain discipline in the service and efficiency of public

service. It would, therefore, be expedient that the disciplinary

proceedings are conducted and completed as expeditiously as

possible. It is not, therefore, desirable to lay down any guidelines as

inflexible rules in which the departmental proceedings may or may not

be stayed pending trial in criminal case against the delinquent officer.

Each case requires to be considered in the backdrop of its own facts

and circumstances. There would be no bar to proceed simultaneously

with departmental enquiry and trial of a criminal case unless the

charge in the criminal trial is of grave nature involving complicated

questions of fact and law. Offence generally implies infringement of

public duty, as distinguished from mere private rights punishable under

criminal law. When trial for criminal offence is conducted it should be

in accordance with proof of the offence as per the evidence defined

under the provisions of the Evidence Act. Converse is the case of

departmental enquiry. The enquiry in a departmental proceedings

relates to conduct or breach of duty of the delinquent officer to punish

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him for his misconduct defined under the relevant statutory rules or

law. That the strict standard of proof or applicability of the Evidence

Act stands excluded is a settled legal position. Under these

circumstances, what is required to be seen is whether the

departmental enquiry would seriously prejudice the delinquent in his

defence at the trial in a criminal case. It is always a question of fact to

be considered in each case depending on its own facts and

circumstances. In this case, the charge is failure to anticipate the

accident and prevention thereof. It has nothing to do with the

culpability of the offence under Sections 304-A and 338 IPC. Under

these circumstances, the High Court was not right in staying the

proceedings."

The Judgment in the case of State of A.P. & Ors. Vs. S. Sree Rama Rao

(supra), was cited for the purpose that the High Court is not constituted in a proceeding

under Art. 226 of the Constitution a Court of appeal over the decision of the authorities

holding a departmental enquiry against a public servant, it is concerned to determine

whether the enquiry is held by an authority competent in that behalf and according to

the procedure prescribed in that behalf and whether the rules of natural justice are not

violated.

The judgments relied on by the learned counsel appearing for the respondents

are not distinguishable on facts and on law. In this case, the departmental proceedings

and the criminal case are based on identical and similar set of facts and the charge in a

Departmental case against the appellant and the charge before the Criminal Court are

one and the same. It is true that the nature of charge in the departmental proceedings

and in the criminal case is grave. The nature of the case launched against the

appellant on the basis of evidence and material collected against him during enquiry

and investigation and as reflected in the charge sheet, factors mentioned are one and

the same. In other words, charges, evidence, witnesses and circumstances are one

and the same. In the present case, criminal and departmental proceedings have

already noticed or granted on the same set of facts namely, raid conducted at the

appellant's residence, recovery of articles therefrom. The Investigating Officer, Mr. V.B.

Raval and other departmental witnesses were the only witnesses examined by the

Enquiry Officer who by relying upon their statement came to the conclusion that the

charges were established against the appellant. The same witnesses were examined

in the criminal case and the criminal court on the examination came to the conclusion

that the prosecution has not proved the guilt alleged against the appellant beyond any

reasonable doubt and acquitted the appellant by his judicial pronouncement with the

finding that the charge has not been proved. It is also to be noticed the judicial

pronouncement was made after a regular trial and on hot contest. Under these

circumstances, it would be unjust and unfair and rather oppressive to allow the findings

recorded in the departmental proceedings to stand.

In our opinion, such facts and evidence in the department as well as criminal

proceedings were the same without there being any iota of difference, the appellant

should succeed. The distinction which is usually proved between the departmental and

criminal proceedings on the basis of the approach and burden of proof would not be

applicable in the instant case. Though finding recorded in the domestic enquiry was

found to be valid by the Courts below, when there was an honourable acquittal of the

employee during the pendency of the proceedings challenging the dismissal, the same

requires to be taken note of and the decision in Paul Anthony's case (supra) will

apply. We, therefore, hold that the appeal filed by the appellant deserves to be

allowed.

In the instant case, the appellant joined the respondent in the year 1953. He

was suspended from service on 8.2.1979 and got subsistence allowance of Rs.700/-

p.m. i.e. 50% of the salary. On 15.10.1982 dismissal order was passed. The appellant

has put in 26 years of service with the respondent i.e. from 1953-1979. The appellant

would now superannuate in February, 1986. On the basis of the same charges and the

evidence, the Department passed an order of dismissal on 21.10.1982 whereas the

Criminal Court acquitted him on 30.1.2002. However, as the Criminal Court acquitted

the appellant on 30.1.2002 and until such acquittal, there was no reason or ground to

hold the dismissal to be erroneous, any relief monetarily can be only w.e.f. 30.1.2002.

But by then, the appellant had retired, therefore, we deem it proper to set aside the

order of dismissal without back wages. The appellant would be entitled to pension .

For the foregoing reasons, we set aside the judgment and order dated

28.1.2002 passed by the learned single Judge in Special Civil appln. No. 948 of 1983

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as affirmed by the Division Bench in L.P.A. No. 1085 of 2002 and allow this appeal.

However, there shall be no order as to costs.