Central Administrative Tribunal - Hyderabad
Shri A.A. Laxma Reddy S/O A. Ganga Reddy vs Commissioner, Customs And Central ... on 27 July, 2007
ORDER
P. Lakshmana Reddy, J. (Vice Chairman)
1. This is an application filed seeking to set aside the memorandum of charge dated 28.10.2005 issued by R-2, Joint Commissioner, Customs and Central Excise. The relevant facts in brief are as follows:
The applicant joined in service as Inspector of Customs and Central Excise on 27.8.93. While he was Inspector, Central Excise at Sircilla in Karimnagar District, the CBI, Hyderabad Branch registered a crime against him on 7.5.2002 in RC No. 22 (A) of 2002 under Section 7 of Prevention of Corruption Act, 1988 for the alleged offence of demand and acceptance of bribe by the applicant from one B. Ramaswamy. The CBI laid a trap and later filed charge sheet on 30.9.2002 against the applicant and also against one private person by name, Ch. Ravinder alleging offences punishable under Section 120-B of IPC and 7 and 13 (2) read with 13 (I)(d) of Prevention of Corruption Act in the Court of Special Judge for CBI cases, Hyderabad. The said case was numbered as CC 33/2002 on the file of the Special Judge Court. After the fullfledged trial, the Special Judge acquitted both the accused including the applicant on 30.6.2004.
2. While so, on 28.10.2005, the second respondent issued the impugned charge memorandum dated 28.10.2005 for initiation of disciplinary proceedings against the applicant for imposition of major penalty on the same allegation that he demanded and accepted the bribe from B. Ramaswamy. Aggrieved by the same, the applicant filed the present application contending that the decision to initiate departmental proceedings against the applicant was taken by the first respondent after consultation with the CBI and the second respondent who is the disciplinary authority did not take the decision independently and implemented the decision of his superior officer and the CBI which lost their case in the Court of Law. He further contended in the application that the cumulative reading of the charge sheet filed by the CBI before the Court of Special Judge for CBI cases and the impugned charge sheet issued by the department would show that the list of documents and list of witnesses cited in both the charge sheets are one and the same and the department has proposed to lead the same evidence that was already laid before Special Judge in the criminal proceedings which ended up in acquittal against the applicant. The applicant submitted a representation dated 28.11.2005 to the second respondent stating that there is absolutely no truth in the charge levelled against him and requesting him to withdraw the charge memo considering various facts and circumstances relating to the case but the second respondent appointed the third respondent as inquiry officer vide his order dated 18.1.2006. He further pleaded in the application that the Hon'ble Supreme Court in the case of G.M. Tank v. the State of Gujarat reported in (2006) R SC JI set aside the penalty imposed on the appellant in that case in disciplinary proceedings after the acquittal in a criminal proceeding in respect of the allegations containing same set of facts and evidence holding that when there was an honorable acquittal of the employee in the criminal proceedings, the dismissal awarded in the disciplinary proceeding does not sustain under the law and in view of the principle laid down in Paul Anthony's case . The applicant pleaded that in view of the said decision of the Hon'ble Supreme Court which enunciated a legal proposition that on identical facts and on the same evidence, the departmental action shall not survive after failure of prosecution in the criminal proceedings, the applicant submitted representations dated 20.10.2006 and 30.10.2006 to the second respondent to drop the charge sheet by giving suitable direction to the third respondent to stop disciplinary proceedings so as to save time of the department and also to avoid unnecessary hardship to the applicant. But the second respondent by his order dated 7.11.2006 informed the applicant that his request to drop the proceedings cannot be acceded to since the CBI had preferred an appeal before the Hon'ble High Court of A.P. against the acquittal order dated 30.6.2004 and that the trial court looks into criminal misconduct whereas the departmental proceedings look into simple misconduct and that the charges are different in criminal proceedings and the departmental proceedings. It is further stated in the application that the applicant once again represented to the second respondent vide letter dated 10.1.2007 requesting him to once again examine his case in the light of the settled law that honourable acquittal on a consideration of the entire evidence should be taken as full exoneration and no disciplinary action can be taken. It is further stated that there is a delay of 1 = years in initiating disciplinary proceedings after his acquittal in a criminal case on merits. But the second respondent was not inclined to follow the principles enunciated by the Supreme Court and refused to drop the proceedings. The applicant contended that the commencement of disciplinary proceedings in respect of the very same incident in respect of which the applicant secure clean acquittal is not permissible under law and it is arbitrary and illegal and is liable to be set aside.
3. The respondents contested the application and field reply pleading that basing on the suggestions from the CBI or DG (Vigilance) or CVO and considering all the material facts and evidence, the charge memorandum dated 28.10.2005 was issued by the disciplinary authority. The directions or approval from the higher officers are clarificatory in nature. Just because the disciplinary authority exchanged some correspondence with the CBI or superior officers, it is not correct to say that the disciplinary authority did not take decision independently. It is further pleaded that the CBI filed the case under the provisions of Prevention of Corruption Act whereas the disciplinary proceedings of the department are initiated under CCS (CCA) Rules and further in the criminal trial charges need to be proved beyond reasonable doubt whereas in the departmental proceedings, preponderance of probability is the yardstick. The articles of charges framed against the applicant for contravention of Rule 3(1)(i), 3(1)(ii) and 3(1)(iii) of the CCS (Conduct) Rules for committing gross misconduct and failed to maintain absolute integrity and for an unbecoming act of public servant in as much as he demanded and accepted an amount of Rs. 8,000/- on 7.5.2002 as illegal gratification from Shri B. Ramaswamy to issue fresh registration certificate to the firm of Ramaswamy. It is further pleaded that the case laws cited by the applicant are not applicable to this case and that exoneration from criminal misconduct may not be construed as exoneration from simple misconduct relevant for the departmental proceedings. It is further pleaded that the standard of proof required in departmental proceedings is not the same as required to prove in criminal case and even if there is an acquittal in criminal proceedings, the same does not bar departmental proceedings as per Supreme Court Judgment in Noida Enterprises Association v. Noida and Ors. reported in 2007 (51) AIC 37 (SC). the respondents prayed for dismissal of the application.
4. During the course of hearing, the learned Counsel for the applicant reiterated the contentions raised in the application. He invited our attention to the impugned memorandum of charges (Annexure A-1) which contained statements of articles of charge, statement of imputations, list of documents proposed to be relied on to prove the charge and the list of witnesses proposed to be examined to prove the charge, and also the charge sheet (Annexure A-4) filed by the CBI before the Special Judge for CBI cases, Hyderabad and contended that the charge framed against the applicant in the departmental case and charge before the Criminal Court are exactly one and the same and similarly the list of documents proposed to be relied on and the list of witnesses proposed to be examined in the departmental inquiry are exactly the same as the documents and witnesses mentioned in the charge sheet filed by the CBI before the Special Judge, and as the Criminal Court found the very same charge as not proved and acquitted the applicant, it is not open for the department to initiate departmental inquiry in respect of the very same charge and on the very same set of documents and witnesses. The inquiry officer in the departmental inquiry cannot give a different finding than that of the Criminal Court in respect of the very same charge as it amounts to not accepting the verdict of the competent Court of Law and therefore, the impugned charge memo is liable to be set aside. In support of his contention, he relied upon a decision by the Hon'ble High Court of A.P. in S. Rama Rao v. Food Corporation of India and Anr. reported in 1989 (5) SLR 567 wherein the Hon'ble High Court of A.P. held on similar set of facts that in the case of acquittal on merits in a criminal case, the departmental proceedings cannot be initiated in respect of the same charge.
5. The learned Counsel for the applicant also relied on a Division Bench decision of Hon'ble High Court of A.P. in Ravuru Babu Rao v. General Manager, Oriental Insurance Co. Ltd. Madras wherein the Division Bench held that though there is no bar for pursuing both departmental inquiry and criminal proceedings simultaneously, once the delinquent is acquitted in the criminal proceedings and when the decision of Civil Court is also in favour of the delinquent, still conducting the departmental inquiry on the very same issues and evidence is unfair and improper and that if the department is of the opinion that it is not worthwhile to continue the delinquent employee in the department, department is at liberty to take such decision on any other charge against him but not on the basis of the same charge which was found not proved by the Criminal Court and that in respect of the decision rendered by the Civil Court and Criminal Court in favour of the delinquent, if the departmental inquiry is allowed, it amounts to not accepting the verdicts of the competent Courts.
6. The learned Counsel for the applicant further invited our attention to the latest decision of the Supreme Court in G.M. Tank v. State of Gujarat and Anr. reported in 2006 (4) SCJ 1 wherein it is held that where departmental proceedings and criminal proceedings are based on identical and similar set of facts and the charge in the departmental case and charge before the Criminal Court are one and the same and when there was honorable acquittal of employee during the pendency of proceedings challenging his dismissal awarded in the departmental proceedings, the dismissal in the disciplinary proceedings is liable to be set aside. The learned Counsel submitted that on the basis of the above said law laid down by the Hon'ble High Court of A.P. and the Hon'ble Apex Court, the respondents cannot be permitted to proceed with the departmental inquiry initiated against the applicant as it will be only a futile exercise and it amounts to harassment to the applicant.
7. On the other hand, the learned standing counsel reiterated the contentions raised in the reply statement stating that the basis of approach, the burden of proof and appreciation of evidence in the departmental inquiry and in the criminal proceedings are entirely different and that the acquittal in a criminal case is not a bar for initiation of disciplinary proceedings. In support of his contention, the learned standing counsel relied upon a decision of three Judges Bench of the Hon'ble Supreme Court in Noida Entrepreneurs Association v. Noida and Ors. reported in 2007 (5) AIC 37 wherein it is held that there is no bar for simultaneous proceedings viz. departmental inquiry and trial of a criminal case and that the standard of proof required in a departmental proceedings is not the same as required in the criminal case and hence even an acquittal in criminal case does not bar departmental proceedings.
8. The points that arise for consideration in this application are:
(i) Whether the article of charge framed against the applicant in the impugned departmental proceedings and the charge framed against the applicant by the Special Judge for CBI cases are one and the same as contended by the applicant in the application or different as contended by the respondents in their reply statement?
(ii) If so, whether the Special Judge, CBI cases acquitted the applicant after going into the merits of the case?
(iii) Whether the acquittal in criminal case of the applicant in C.C. No. 33/2002 on the file of Special Judge, CBI Case, Hyderabad is an honorable acquittal?
(iv) If so, whether the department can initiate departmental proceedings in respect of the same charge which is found not proved by the Special Judge, CBI Cases?
(v) Whether the impugned disciplinary proceedings are liable to be quashed?
(vi) To what result?
9. Point No. (i):
As seen from the enclosure to the impugned memorandum, the articles of charge framed against the applicant reads as follows:
That Sri AA, Laxma Reddy while functioning as Inspector of Customs and Central Excise, Sircilla Fixed Sector, Karimnagar district committed gross misconduct and failed to maintain absolute integrity and acted in a manner unbecoming of a public servant in as much as he demanded and accepted an amount of Rs. 8000/- on 7.5.2002 as illegal gratification from Sri. Baddula Ramaswamy to issue fresh Registration Certificate to the firm of Sri Baddula Ramaswamy.
By the aforesaid acts, Sri. A.A. Laxma Reddy, Inspector of Customs and Central Excise, contravened Rule 3(1)(i), Rule 3(1)(ii) and Rule 3(1)(iii) of CCS Conduct Rules, 1964.
The statement of imputations is also annexed under the caption 'Annexure 2' to the impugned memorandum. The said imputations run into three pages. The reading of the said imputations disclose that all the averments made in the charge sheet filed by the CBI before the Special Judge for CBI Cases, Hyderabad have been reproduced in the statement of imputations. Similarly, as seen from the list of witnesses annexed to the impugned memorandum under the caption 'Annexure 4', seven witnesses have been cited and out of them, the names of six witnesses find place in the list of witnesses annexed to the charge sheet filed by the CBI. Similarly, as seen from the list of documents proposed to be relied on by the department to prove the article of charge, six documents have been cited and all those six documents find place in the list of documents filed by the CBI before the Special Judge for CBI cases in CC 33/2002. As seen from the Judgment in CC 33/2002 dated 30.6.2004 on the file of Special Judge, CBI cases, the charge framed against the applicant who is A-1 therein is also in respect of the very same allegation that on 7.5.2002 at 11.15 am, the applicant demanded and accepted a bribe of Rs. 8000/- from B. Ramaswamy for doing an official favour and thereby committed offences punishable under Section 7 and 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act. Therefore, we have no hesitation to hold that the alleged incident in respect of which the CBI filed charge sheet before the Special Judge, CBI cases against the applicant and the alleged incident in respect of which the department initiated disciplinary proceedings against the applicant are exactly one and the same and there is no iota of difference. The stand taken by the respondents in the reply that both are different, is not supported by any material and it is not correct. Thus, this point is found in favour of the applicant and against the respondents.
10. Points (ii) & (iii):
The copy of the Judgment in CC 33/2002 on the file of Special Judge, CBI Cases, Hyderabad is filed by the applicant as Annexure A-5. A perusal of the Judgment disclosed that the learned Judge considered the evidence of PWs. 1 to 10 on behalf of the prosecution and also the documents exhibited as Exhibits P-1 to P-14 and also the material objects marked as 1 to 5, and discussed the evidence and held that the prosecution failed to prove the guilt against the accused beyond reasonable doubts and the accused are entitled for acquittal. It is useful to extract the relevant portions of the Judgement:
16. In a trap case, prosecution must establish three ingredients. The first ingredient is that accused is a public servant, second ingredient is accused demanded and accepted illegal gratification for doing an official act and third ingredient is recovery of the bribe amount from the possession of the accused officer.
17. Here in this case, there is no dispute with regard to first ingredient. Because admittedly A.1 is a public servant. So, I must examine the evidence on record with reference to second ingredient i.e. with regard to demand and acceptance. To prove demand aspect, prosecution relied on the evidence of P.W. 1. Naturally, there cannot be any independent witnesses to prove demand aspect. Because it will be between complainant and accused. So, while dealing with demand aspect, the Court must take into consideration evidence of P.W. 1 and decide whether the same is trust-worthy or not. It is the specific case of prosecution that P.W. 1 gave written complaint on the morning of 7.5.2002 at Kareemnagar to P.W. 8 when he was at the office of Dy. SP ACB, Kareemnagar along with his colleague officers. According to prosecution, SP CBI informed him on 6.5.2002 to go over to Kareemnagar ACB office and receive written complaint from P.W. 1 and verify the same. But the evidence of P.W. Is quite contrary to this version. He deposed that on 6.5.2002 A.1 informed him that unless he pays bribe, he will not get PAN number. He further deposed that A.1 informed him that Excise Superintendent will be visiting and the money has to be paid to Superintendent and not for himself. He deposed that he enquired somebody as to what to do in the matter and that person suggested him to approach CBI and supplied telephone number of SP CBI. He deposed that he immediately contacted S.P. Madam on telephone and that he was asked to come over to Hyderabad for discussion. He deposed that he reached Hyderabad around 4 or 4.30 p.m. and gave a written complaint to SP around 5 p.m. And Ex.P.3 is the same complaint. He further deposed that S.P. Madam instructed him to report at ACB office, Kareemnagar on the next day morning around 7 a.m. and after taking instructions he returned back to his place on the same day night.
In the cross examination, he deposed that he met A.1 on 6.5.2002 around 12 noon and that he telephoned to S.P. Madam around 12.30 p.m. He deposed that he left Sircilla for Hyderabad at 1 p.m. and Ex.P.3 was drafted in the S.P. Office. He deposed that he left Hyderabad around 6.30 p.m. He further deposed that at Kareemnagar he was not shown Ex. P.3. But this part of evidence of P.W. 1 is quite contrary to the prosecution case. From the endorsements on Ex.P.3, it appears that this complaint was given to P.W. 8 at 7 a.m. on 7.5.2002 and S.P. Office received this complaint at 5.20 p.m. on 7.5.2002. P.W. 1 asseted in his evidence that he gave a complaint to S.P. Madam on 6.5.2002 around 5 p.m. This he stated in his chief examination. This statement of P.W. 1, which was made on oath, remained undisturbed because prosecution has not treated this witness hostile. When he specifically asserted that he gave a complaint to S.P. Madam on 6.5.2002at 5 p.m., then what happened to that complaint is not explained by the prosecution. It is admitted case of prosecution that Ex. P.3 was given at Kareemnagar but not at Hyderabad. But P.W. 1 categorically stated that P.3 was drafted in the S.P. Office. So, when P.W. 1 was referring to complaint given to the S.P. In her office and when Ex. P.3 is not the same, it is the duty of the prosecution to remove this doubt. If evidence of P.W. 1 with regard to giving of complaint on 6.5.2002 is correct, then this Ex. P.3 cannot be treated as complaint for registering FIR because it is sufficient report. Admittedly, phone message was received by S.P. CBI in the afternoon of 6.5.2002 and on that, instructions were given to P.W. 8 to proceed to Kareemnagar and receive a complaint from the complainant and verify. But from the evidence of P.W. 8, it is clear that a team was deputed to Kareemnagar which means that the telephone information received by S.P. on 6.5.2002 discloses a cognizable offence otherwise there is no point in sending a team of officers for verification. It is sufficient to depute one officer to conduct verification with regard to allegations made against A.1. The very fact that a team of officers were deputed to Kareemnagar shows that a decision was taken for laying a trap. Such decision can be taken only when the Station House Officer is satisfied that the allegations made against the accused reveals cognizable offence. The evidence of P.W. 8, the trap-laying officer is contradicting with the evidence of P.W. 1 with regard to giving of complaint. So, if evidence of P.W. 1 is accepted on this aspect, the evidence of trap laying officer and the endorsements on the complaint have to be thrown out. If the evidence of trap laying officer and endorsement on Ex. P.3 are accepted, the evidence of P.W. 1 has to be discarded. So, either way, they are not corroborating with each other. Further, P.W. 1 clearly stated in his chief examination itself that A.1 demanded money on 6.5.2001 by saying that the same is not for himself and it has to be paid to the superintendent who is expected to visit Sircilla. So, the evidence of P.W. 1 is not in conformity with the prosecution version with regard to demand aspect.
18. The question of acceptance and recovery would become relevant once demand aspect is established. When prosecution is snot able to prove demand aspect and when it creates doubt, the recovery aspect and acceptance aspect will become redundant. Even otherwise, even according to prosecution, A.1 did not receive money directly and the recovery was also not from the possession of A.1. According to prosecution, this money was recovered from the table drawer of A.1. According to defence version, this P.W. 1 kept this money in the table drawer of A.1 when he was away from his seat. To substantiate this, A.2 is examined as D.W. 1 who stated on oath that P.W. 1 gave money to him with a request to count it and later kept that money in table drawer. This D.W. 1 was cross examined on behalf of prosecution. But, nothing could be elicited to discredit his testimony except making general suggestions. From a perusal of record, it is clear that A.2 was not figured as accused in the first instance. On the other hand, prosecution has treated A.2 as witness to them and his 161 Cr.P.C. Statement is also recorded by Investigating Officer on 6.6.2002. Prosecution filed application before 21st Metropolitan Magistrate, Hyderabad on 2.7.2002 requesting him to record the statement of this A.2 under Section 164 Cr.P.C. as a witness. The learned 21st Metropolitan Magistrate recorded statement of this A.2 on 5.7.2002 and that statement is in conformity with the evidence given by A.2 as D.W. 1 in this case. So, after recording 164 Cr.P.C. Statement of this A.2, the scene has been changed. A.2 did not give a statement favourable to the prosecution before the Magistrate. It is the contention of the learned defence counsel, since A.2 failed to accommodate prosecution by giving statement before Magistrate as desired by them, they implicated him as accused in the charge sheet though the role of A.2 was shown in the second mediator report which was drafted prior to the registration of FIR. I have to accept the argument of the learned defence counsel because the role of A.2 alleged in the charge sheet, is the same, which was incorporated in the second mediator report. Admittedly, FIR was registered subsequent to drafting of second mediator report. When that is the case, non-inclusion of name of A.2 in the FIR is a strong circumstance to suspect the role of A.2 as alleged by prosecution. There is no explanation from the prosecution as to why A.2 was treated as witness in the first instance and what was the additional material that made the investigating officer to convert a witness of prosecution as an accused. Since there is absolutely no additional material, it has to be inferred that for not giving statement favourable to the prosecution, a person who initially treated as a witness to the prosecution was converted as A.2. When A.2 gave evidence as D.W. 1, the prosecution has not confronted him with his 161 Cr.P.C., statement which is another strong circumstance to support the argument of the learned defence counsel, as the reason assigned for including A.2 in the charge sheet. If really, this D.W. 1 gave any statement to the Investigating Officer as recorded by him, they would not have left A.2 who came into witness box as D.W. 1 without confronting such statement. So, all these aspects point towards the reason submitted by the learned defence counsel.
19. D.W. 1 deposed in his evidence that P.W. 1 gave money to him to count and later the same was kept in the table drawer. He further deposed that he gave shake hand to A.1 while intending to leave the office. Admittedly, money brought by P.W. 1 is smeared with phenolphthalein powder. So, D.W. 1 while counting, came into contact with smeared currency notes and later and he gave shake hand to A.1 with such tainted hand, which is a convincing explanation from the facts of the case. Admittedly, tainted money is not recovered from the possession of the accused and it was recovered from the drawer. So, this is another circumstance which probabalise the defence version.
From the above said portion of the Judgement, it is clear that the learned Judge has gone into the merits of the case and discussed the evidence on record and held that the alleged demand and acceptance of the bribe of Rs. 8000/- from B. Ramaswamy for doing an official favour is not proved beyond reasonable doubt. Though the learned Judged relied upon some technicalities also regarding the investigation conducted prior to the registration of the FIFR in support of the acquittal it cannot be said that the learned Judge recorded acquittal not on merits of the case but on technicalities. Had the learned Judge acquitted the accused on the sole ground that the very investigation conducted prior to the FIR is invalid, or on the ground that there was no sanction for the prosecution of the accused etc. it can be said that the acquittal is not on merits but only on technicalities. But, here in the instant case, the learned Judge discussed the evidence of witnesses including the main witness, Ramaswamy, PW-1 and disbelieved his evidence and found the accused not guilty of the charge framed against him. Under those circumstances, we are unable to hold that the acquittal of the applicant is only on mere technicalities and not on merits and therefore, it is not an honorable acquittal. This Tribunal cannot go into the sufficiency or otherwise of the reasons given by the Judge for discarding the evidence of prosecution witnesses. As the acquittal was recorded after going into the merits and after appreciation of evidence adduced in support of the prosecution, it shall be taken as an honorable acquittal. Thus, these two points are also found in favour of the applicant.
11. Points No. (iv) & (v):
The learned Counsel for the applicant contended that the department is not entitled to initiate disciplinary proceedings in respect of the same set of facts after the honorable acquittal recorded by a Court of Law. He submitted that the facts of the case in S. Rama Rao v. Food Corporation of India and another reported in 1989 (5) SLR 567, are exactly similar to the facts of this case and in the said case, Hon'ble A.P. High Court held that when the acquittal in a criminal case is on merits, the departmental proceedings cannot be initiated after the acquittal by Court of Law. We have gone through the facts of the said case. It was a case of a trap by ACB on 21.6.99, as in the instant case. The employee was suspended on 13.7.99. After completion of the inquiry, a case has been filed against the employee accused for the offence under Section 5(2) read with Section 5(1)(d) of the Prevention of Corruption Act before Special Judge for SPE cases and after due trial, the Special Judge convicted the employee accused and sentenced him to undergo RI for those offences. Thereafter, the employee was dismissed from service on 21.5.81. The employee filed a Criminal Appeal before the A.P. High Court and the A.P. High Court allowed the appeal on 27.10.83. In view of the said acquittal, the employee was reinstated in service on 28.4.84. Thereafter, the employee filed an application for regularisation of services on 11.12.84. At that stage, the department issued a charge sheet on the same identical lines on 15.1.86. The employee filed writ petition challenging the same before the A.P. High Court and the A.P. High Court held that the departmental proceedings are liable to be set aside on the ground that the allegation that has been made against the employee has already been considered by the Criminal Court and he was given acquittal. Accordingly, the impugned departmental proceedings were quashed and the writ petition was allowed. As seen from the said facts, the applicant herein stands on a better footing than the employee concerned in the cited case. Because in the cited case, originally, the Trial Court convicted him and it is only the Appellate Court which acquitted him whereas in the instant case, the Trial Court itself found that the applicant is not guilty and acquitted him. In the cited case, the learned Judge observed that as the Judgment of appellate court is on merits and the accused was not acquitted on any technical grounds, there is a bar for the authorities concerned to initiate departmental action on the same set of facts and on the same allegations.
12. The learned Counsel invited our attention to another decision in Ravuru Babu Rao v. General Manager, Oriental Insurance Co. Ltd. Madras . The facts of the case are that the appellant therein is a Probationary Inspector, Grade I in the Oriental Insurance Co. On 11.5.79, he issued two cover notes for a total sum of Rs. 2,41,35,000/-. The respondent found that the petitioner acted in excess of his authority and in the manner prejudicial to the interest of the Insurance Company and that he was negligent in the performance of his duties. Hence disciplinary proceedings were initiated against him on 8.11.79 and at the same time simultaneously criminal proceedings were also initiated in C.C. No. 13 of 1981 before the Principal Special Judge for S.P.E. And A.C.B. Cases, Hyderabad for offences punishable under Sections 420 read with 511 IPC, 120B read with Section 420 of IPC and 5(2) read with Section 5(1)(d) of the Prevention of Corruption Act. After due trial, the Criminal Court after considering the evidence adduced held that the prosecution finally failed to prove any of the offences charged against the accused and accordingly acquitted the accused of all charges levelled against him by its Judgment dated 6.3.84. Subsequent to this acquittal, the suspension of the petitioner was revoked on 8.3.95. Challenging the order passed by the learned Principal Special Judge for SPE and ACB cases, State filed Criminal Appeal and the Hon'ble High Court dismissed the said appeal by its Judgment dated 11.9.86 on merits. Challenging the judgement, Criminal Appeal No. 487/1987 was preferred before the Supreme Court and the same was dismissed on 19.10.94. In the meanwhile, the Department proceeded with disciplinary proceedings by appointing an inquiry officer to inquire into the charges levelled against the appellant. Challenging the initiation of disciplinary proceedings, the appellant filed writ petition before the High Court and the learned Single Judge stayed the inquiry pending disposal of the writ petition and ultimately dismissed the writ petition. Against that dismissal of the writ, the employee filed a writ appeal before the Hon'ble A.P. High Court. In that writ appeal the Division Bench considered whether both departmental and criminal procedure can be proceeded simultaneously and whether the orders passed by the competent authority constituted under Cr.PC. on the same issue will bar the departmental inquiry and held on first point that departmental inquiry and criminal trial can be pursued simultaneously and on the second point Hon'ble Division Bench held that when there is acquittal by the competent Criminal Court on merits, it is not proper once again to initiate departmental inquiry. But, however, if the department is of the opinion that it is worthwhile not to continue the employee in the department, the department is at liberty to take such decision on any other charge against the employee but not on the basis of the charge for which he was already acquitted by Criminal Court and that even after the acquittal in a particular charge and if the Criminal Inquiry is allowed on the same charge it amounts to not accepting the verdict of the competent Courts. The facts of the present case are also similar to the facts of the cited case. Here also the department initiated proceedings on the same charge in respect of which the applicant secured acquittal in a competent criminal court.
13. The learned Counsel further relied on the latest decision of the Supreme Court in G.M. Tank v. State of Gujarat and Anr. reported in 2006 (4) SCJ 1 wherein the Hon'ble Apex Court held that if the departmental proceedings and criminal proceedings are based on identical and similar set of facts, and the charge in departmental case and the charge before criminal court are one and the same, and where there is an order of acquittal of the employee, the punishment imposed in departmental proceedings during the pendency does not stand. The facts of the said case are as follows: The appellant before the Supreme Court was an Overseer and he was regularly submitting his property return showing all his movable and immovable properties. The department felt that movable and immovable properties were disproportionate to his known source of income. Thereupon the Anti-Corruption Bureau carried out an investigation and filed report to the department and on the basis of that report, a charge sheet dated 20.2.79 was issued alleging that the appellant had illegally accumulated the excess income by way of gratification. The appellant denied the said allegations. Thereafter, a departmental inquiry was ordered and the inquiry officer submitted his report dated 31.3.80 finding that the appellant employee guilty of the charge. The disciplinary authority passed an order of dismissal on 21.10.82. Against the dismissal order the appellant employee field writ petition before the High Court. The learned Single Judge dismissed the writ petition. Against the order of the learned single Judge, the appellant preferred L.P.A. before the Division Bench and the Division Bench dismissed the LPA and confirmed the orders of the Single Judge. The said dismissal by Division Bench was challenged before the Apex Court.
14. Though the departmental proceedings were initiated by the department, the Director of Anti-Corruption Bureau also got it inquired into the alleged disproportionate assets of the same employee and found that the employee's assets were disproportionate to the known sources of income. A charge sheet was filed before the Special Judge, Kachchh in the year 1987 for the offences punishable under Section 5(1)(e) read with Section 5(2) of the Prevention of Corruption Act, 1947 and the Special Judge honourably acquitted the appellant employee by holding that the prosecution has filed to prove the charges levelled against the appellant. The said acquittal was not taken into consideration by the Division Bench of the High Court while considering the L.P.A. It was contended before the Hon'ble Apex Court that the Division Bench failed to take into consideration the honorable acquittal recorded by the Criminal Court and simply in a routine manner held that the writ Court does not re-appreciate or re-examine the evidence lead before the Inquiry Officer and unlike in the criminal trial, the degree of proof in the domestic inquiry is restricted to preponderance of probability and not beyond reasonable doubt and hence the dismissal of L.P.A. is not sustainable. The Hon'ble Apex Court upheld the contention of the appellant employee and set aside the punishment of dismissal imposed in the departmental proceedings in view of the honorable acquittal of the appellant employee by the Criminal Court. If the facts therein are compared with the facts of the instant case, the applicant stands on a better footing than the appellant therein before the Hon'ble Apex Court because in that case, simultaneous departmental proceedings were initiated and concluded holding that the charge framed against him is proved and said findings were confirmed by the High Court, both Single Bench and Division Bench. Such findings of the departmental inquiry were set aside for the reasons that the employee was honourably acquitted by the Criminal Court in respect of the same charge based on similar set of facts. In the instant case, as already found supra, the charge framed in the departmental inquiry is on the basis of the same facts and incident in respect of which CBI filed charge sheet before the Special Judge for CBI cases which ended in acquittal. The charge framed by the Special Judge and the charged framed by the disciplinary authority are exactly the same and the allegation in both the charges is that it is only that on 7.5.2002, the applicant demanded and accepted a bribe of Rs. 8,000/- from B. Ramaswamy for doing official favour. It is also found supra that the acquittal of the applicant in the Criminal Court is an honorable acquittal. Therefore, the proposition of law laid down by the Hon'ble Supreme Court in the case of G.M. Tank v. State of Gujarat and Anr. is very much applicable to this case. Of course, the learned Counsel for the respondents contended in the cited case, the departmental inquiry was already completed whereas in the instant case, the departmental inquiry is yet to be completed and therefore, the facts of the instant case are not similar to the facts of that case. He submitted that mere acquittal in a criminal court is not a bar to initiate disciplinary proceedings and that in the instant case, it is at the stage of initiation of the departmental proceedings and therefore, the Tribunal cannot interfere at this stage.
15. The learned Counsel relied upon the latest decision of the Apex Court in Noida Entrepreneurs Association v. Noida and Ors. reported in 2007 (51)/AIC 37 (S.C.) wherein it is held that there is no bar in proceeding simultaneously with the departmental inquiry and trial of criminal case and hence dropping of departmental proceedings against an employee by the Government on purported ground of parallel criminal investigation by CBI is not justified. The facts of the said case are as under : One Smt. Neera Yadav while working in U.P. during the period 1994 96 alleged to have committed irregularities in allotments and conversions of land in New Okhla Industrial Development Authority (NOIDA). Explanation was asked by Principal Secretary of Govt. of U.P. from Smt. Neera Yadav. On 2.2.93, the then Chief Minister of U.P. observed that there was no need for any action in the matter. In November 1995, a memorandum was submitted by NOIDA Entrepreneurs Association seeking inquiry by CBI regarding the alleged irregularities in allotments and conversion in NOIDA. The State Government constituted judicial commission and later Hon'ble Justice Murtaza Hussain submitted a report on 9.12.97. On the basis of that report, the then Chief Secretary recommended departmental action in respect of specific findings against her and also ordered an inquiry by Vigilance Commission. One Mr. A.P. Singh was recommended to be the inquiry officer. The then Chief Minister concurred with the findings of the then Chief Secretary. In the meantime, writ petition had been filed before the Apex Court and the Apex Court directed the State Government to indicate its stand on affidavit in respect of the conclusions of Justice Murtaza Hussain Commission. On 9.1.98, the then Chief Minister of the State approved the findings of the then Chief Secretary recorded on 27.12.97 in relation to the suggestions for departmental action in accordance with the rules. Later, the Apex Court by order dated 20.1.98 directed that the matter should be investigated by the CBI and if such investigation discloses the Commission of criminal offence the person/persons found responsible should be prosecuted in a criminal court. It was specifically noted that the State Government was proposing to initiate departmental proceedings against Smt. Neera Yadav. On 26.5.98 a charge sheet had been issued to Smt. Neera Yadav and an inquiry officer was appointed and three charges were framed against her. While so, on 25.2.99 Smt. Neera Yadav filed a representation that in view of the criminal investigation, departmental proceedings should not proceed. The State Government obtained the opinion of its Law Department which found that the departmental inquiry was validly initiated. While so, on 8.7.99, the Principal Secretary of the State took a stand that a parallel inquiry should be avoided and that any action should be taken after completion of CBI inquiry on the basis of its report. On 22.7.99, the then Chief Minister noted that when the CBI investigation was in progress, parallel administrative inquiry was not necessary. On 5.8.99, the Government passed an order keeping the disciplinary proceedings in abeyance and on 28.3.2002, the CBI submitted its report in sealed cover and then the Apex Court directed the State Government to file an affidavit in respect of the action taken against the officers and also to indicate the stage of disciplinary proceedings against Smt. Neera Yadav. At that stage, on 13.6.2002, the Legal Remembrancer of the State opined that it would not be appropriate to accord sanction for prosecution or initiate departmental proceedings for any irregularity. On 24.6.2002, the Advocate General concurred with the said opinion. On 28.6.2002, the Government decided not to take departmental action/initiate prosecution in relation to the recommendations in the report of the CBI. The State of U.P. on 17.9.2002 field an affidavit before the Apex Court stating that there was no justification for initiating departmental inquiry as after detailed consideration of the report of the CBI no justification was found for initiating departmental inquiry, since departmental inquiry recommended by Justice Murtaza Hussain's Commission was based only on those points and in the light of the said facts, the allegations were not legally tenable and the Government decided to close the pending departmental inquiry. On 11.1.2005, the Hon'ble Apex Court appointed a Commission with Mr. K.T. Thomas, retired Judge of the Apex Court and the Commission framed several issues and noted that the State Government should not have dropped disciplinary proceedings against Smt. Neera Yadav in the light of adverse findings against her in the report of the Judicial Commission as well as on the report of the CBI. Then the Apex Court asked clarification as to under what circumstances the decision to drop the departmental proceedings was taken. On such facts, the Apex Court held that there was no bar for initiating disciplinary proceedings while CBI investigation is pending or even while criminal case is pending. Thus, the facts of the cited case are not similar tot he facts of this case. In that case the point that arose was not whether departmental proceedings can be initiated even after the acquittal of the employee by a criminal court. The point that arose was whether the departmental proceedings can be continued while the matter is under investigation by the CBI. The learned standing counsel relied upon the observation of the Apex Court that the standard of proof required in departmental proceedings is not the same as required to prove a criminal charge and even there is an acquittal in a criminal case, the same does not bar departmental proceedings and that being so, the order of the State Government deciding not to continue departmental proceedings is clearly untenable and to be quashed and the departmental proceedings should continue. But, the Supreme Court in the cited case, did not have any occasion to consider whether the departmental proceedings can be initiated against employee who obtained honorable acquittal in the criminal court in respect of the same charge and on the same set of facts. On the other hand, the Apex Court in G.M. Tank v. State of Gujarat and Anr. considered whether the orders passed in departmental proceedings are sustainable even after the employee obtained honorable acquittal in a criminal case on the same set of facts and on the same charge as framed in the departmental proceedings and held that when the departmental proceedings and criminal proceedings are based on identical and similar set of facts and the charge in the departmental proceedings and the charge before the criminal court are one and the same, and when there was an honorable acquittal of an employee during pendency proceedings challenging dismissal, the same acquittal requires to be taken note of. Ultimately, in the said case, the Supreme Court quashed the punishment passed in the departmental proceedings on the basis of honorable acquittal in the criminal court. Therefore, we are of the considered view that the decision in Noida Entrepreneurs Association v. Noida and Ors. is not applicable to the facts of this case and on the other hand, the decision of the Apex Court in T.M. Tank v. State of Gujarat and Anr. is applicable. In view of the said decision of the Supreme Court in G.M. Tank v. State of Gujarat and Anr. and also in view of the Division Bench of A.P. High Court decision in Ravuru Babu Rao v. General Manager, Oriental Insurance Co. Ltd., Madras and also in S. Rama Rao v. Food Corporation of India and Anr., we hold that where the employee secured honorable acquittal in a criminal case in respect of a particular charge, the department is not empowered to initiate disciplinary proceedings in respect of the very same charge but of course, if the department is of the opinion that it is not worthwhile to continue the officer in a department, the department is at liberty to take such decision on any other charge connected with departmental functions against the applicant, as observed by the Division Bench of the A.P. High Court in Ravuru Babu Rao v. General Manager, Oriental Insurance Co. Ltd. Madras . The contentions of the learned standing counsel that the Tribunal cannot interfere with the process of initiation of disciplinary proceedings, we are unable to accept to this contention of the learned standing counsel because when the department is not empowered to give a different finding on the very same charge and on the same very evidence than that of the verdict given by criminal court of law, no useful purpose would be served by permitting the department to continue the departmental proceedings. It would only be a futile exercise. In fact, in G.M. Tank v. State of Gujarat and Anr., the Apex Court observed that it could be unjust and unfair or are oppressive to allow the findings recorded in the departmental proceedings to stand after acquittal in the criminal court in cases where the departmental proceedings and criminal case are base on similar set of facts and the charge in the departmental case before the criminal court are one and the same. As it is found in the instant case, that the charge framed in the departmental case and the charge framed in the criminal case are one and the same and the evidence proposed to be relied on is one and same, we have no hesitation to hold that the departmental proceedings initiated against the applicant are liable to be quashed in view of the honorable acquittal of the applicant in respect of the very same charge. Thus, both these points are answered in favour of the applicant and against the respondents.
16. Point No. (vi): In the result, the application is allowed and the impugned proceedings are quashed.