The Union Of India vs Budhdeo Singh on 3 October, 2024

[Cites 6, Cited by 0]

Jharkhand High Court

The Union Of India vs Budhdeo Singh on 3 October, 2024

1. The instant appeal under Clause-10 of Letters Patent is directed against the order dated 04.05.2021 passed by the learned Single Judge of this Court in W.P.(S) No.569 of 2009, whereby and whereunder, while partly allowing the writ petition, the learned Single Judge has quashed and set aside the order dated 26.12.2001 by remitting the matter back to the respondent no.4 to pass a fresh order.

Facts

2. The brief facts of the case, as per the pleading made in the writ petition required to be enumerated, which reads as under:-

3. It is the case of the writ petitioner that the writ petitioner was deputed for Night shift for armed patrolling duty in the intervening night 22/23-07-2001 from 2100 hours to 0500 hours at camp no.II store. During his duty, it was reported that some criminal have stolen 1.040 MT Brass guides from his duty beat. In the intervening night, the Bokaro Steel City Police recovered 1.040 MT Brass guides from near the Air Strip Boundary wall which was just outside the camp-II store area and the police also arrested a criminal.

4. Thereafter, the police party went to Camp II store and met ASI Mr. S.N.Roy and informed him about the recovered Brass guides and 2 LPA No.335/2021 wanted to see the lock and seal of the store and its surrounding area. Thereafter, police party went to the camp II store to see the Brass guide recovered by the police which was kept near the Air Strip Boundary wall.

5. In contemplation with the aforesaid theft; a charge-sheet was issued to the writ petitioner to which he filed a detailed reply denying all the charges and thereafter, a departmental proceeding was initiated and the enquiry officer has held him guilty and submitted its enquiry report and pursuant thereto, the disciplinary authority imposed punishment of removal from service.

6. The writ petitioner challenged the aforesaid order of removal before the appellate authority, but the appellate authority dismissed the appeal and did not interfered with the order of removal. 6. In the meantime, the police also lodged an F.I.R. and a criminal case being G.R. Case No. 686 of 2001 read with T.R. No. 354 of 2008 has been initiated/proceeded against this petitioner.

7. However, the writ petitioner was acquitted in the criminal case on 29.08.2008. Thereafter, the writ petitioner filed a representation before the respondent no.6, however, the same was rejected summarily.

8. Being aggrieved with the aforesaid, the writ petitioner has filed writ petition being W.P.(S) No.569 of 2009.

9. It is evident from the factual aspect that the writ petitioner is the member of the disciplined force working as Constable and was 3 LPA No.335/2021 assigned the duty for night shift for armed patrolling duty in the intervening night 22/23-07-2001 from 2100 hours to 0500 hours at camp no.II store. It was reported that some criminals have stolen 1.040 MT Brass Guides from his duty beat. In the intervening night, the Bokaro Steel City Police had recovered 1.040 MT Brass Guides from near the Air Strip Boundary Wall which was just outside the camp-II store area and the police also arrested a criminal. The Police Party, thereafter, went to Camp II store and met ASI Mr. S.N.Roy and informed him about the recovered Brass guides and wanted to see the lock and seal of the store and its surrounding area.

10. The writ petitioner was acquitted in the criminal case being G.R. Case No.686 of 2001 read with T.R. No.354 of 2008, however, the disciplinary authority has initiated a disciplinary proceeding. Both the proceedings have gone together. However, the disciplinary proceeding was concluded on 18.10.2001 prior to conclusion of the criminal proceeding, by which, the writ petitioner has been removed from service on the ground of acceptance of finding recorded by the inquiry officer of gross dereliction in duty, misconduct and indiscipline.

11. The respondent-writ petitioner, however, has preferred an appeal against the aforesaid order passed by the original authority but the same has also been dismissed vide order dated 26.12.2001.

12. The respondent-writ petitioner after the order of dismissal from service, has been acquitted from the criminal liability on conclusion 4 LPA No.335/2021 of the trial pertaining to G.R. Case No.686 of 2001 corresponding to T.R. No.354 of 2008.

13. The respondent-writ petitioner, thereafter, has made representation before the authority for recall of the order of dismissal on the ground of acquittal in the criminal case but while passing the order on 04.10.2008 in the said representation, the concerned authority has given finding that the criminal and the departmental proceeding are two different proceedings.

14. The respondent-writ petitioner, being aggrieved with the aforesaid, has preferred the writ petition being W.P.(S) No.569 of 2009 challenging the order of dismissal upheld by the appellate authority, as also, the order passed in the representation dated 26.12.2001 and 04.10.2008 respectively.

15. The learned Writ Court has called upon the respondent, wherein, the ground which was taken on behalf of the writ petitioner has seriously been disputed. The ground has been taken that acquittal in criminal case is having no bearing with the departmental proceeding and the departmental proceeding has already ended with the order of punishment.

16. Learned Single Judge has not agreed with the view taken on behalf of the appellant-respondent and by considering the reason of violation of principle of natural justice, has quashed the order passed by the appellate authority by remitting the matter back to the appellate authority for passing the fresh order, which is the subject 5 LPA No.335/2021 matter of the present appeal.

Arguments of the Appellant-UOI

17. Mr. Anil Kumar, learned Addl. S.G.I. appearing for the appellant-UOI has taken the following ground in assailing the impugned judgment:-

(i) The learned Single Judge has not appreciated the legal issues that bearing of the criminal case is having no impact upon the concluded departmental proceeding.

(ii) It has been submitted that the ground of violation of principle of natural justice has been considered, which led the learned Single Judge to interfere with the order passed by the appellate authority but while doing so, the learned Single Judge has not appreciated the fact in right perspective that the order of dismissal is of the year, 2001, while the writ petition has been filed on 05.02.2009, after lapse of 8 years and therefore, the order of dismissal has been accepted for about 8 years and only after acquittal in the criminal case, the claim of the respondent-writ petitioner for recall of the order of dismissal, has not been taken into consideration by the authority concerned, then, the writ petition has been filed challenging the order of the disciplinary authority, the order passed by the appellate authority as well as the order passed in the representation.

(iii) The learned Single Judge has not appreciated the fact that once the respondent-writ petitioner has accepted the order for 8 6 LPA No.335/2021 years and as such, the same cannot be available for the writ petitioner to question the same and on that ground only, the learned Single Judge ought to have dismissed the prayer made in the writ petition but the learned Single Judge has entertained the said prayer only on the ground that after acquittal in the criminal case, the claim of the writ petitioner for recall of the order of dismissal has not been considered, which has got no bearing with the decision already taken by the disciplinary authority on conclusion of the departmental proceeding.

(iv) So far as the issue of violation of principle of natural justice is concerned, if the writ petitioner was at all aggrieved, then, he, ought to have approached the writ court or the appropriate forum challenging the order of dismissal immediately after the finality has attained after approval of the same by the appellate authority but he has not chosen to challenge, rather, he has challenged the said order after lapse of 8 years.

18. The learned Single Judge, therefore, has committed an error in allowing the writ petition by remitting the matter before the appellate authority to pass fresh order.

Arguments of the respondent-writ petitioner

19. Mr. Rupesh Singh, learned counsel for the respondent-writ petitioner has taken the following grounds in defending the impugned judgment:-

(i) The learned Single Judge has committed no error in 7 LPA No.335/2021 passing the order, reason being that, the question of principle of natural justice was the subject matter having been agitated on behalf of the respondent-writ petitioner and when it has been found to be available from bare perusal of the inquiry report, then, in such circumstances, if the order of the appellate authority has been quashed and set aside for its re-consideration, then the same cannot be said to suffer from an error.

(ii) The argument which has been advanced on behalf of the appellant-UOI that the department proceeding is having no bearing with the criminal case, the aforesaid legal issue will not be applicable in the facts and circumstances of the case, reason being that, the departmental proceeding although has been concluded on 18.10.2001 and further by the appellate authority on 26.12.2001, but on acquittal in a criminal case, if the foundation of the very allegation has gone, then, nothing remains to be decided by the disciplinary authority and if any decision has been taken, the same will have to be recalled depending upon the outcome of the criminal case. But, the respondent authority without considering the aforesaid aspect of the matter has rejected the said representation and as such, if that has been taken into consideration by the learned Single Judge, the same cannot be said to suffer from an error.

20. The learned counsel for the respondent-writ petitioner, based upon the aforesaid grounds, has submitted that the impugned Judgment, therefore, needs no interference.

8 LPA No.335/2021 Analysis

21. We have heard the learned counsel for the parties and gone across the finding recorded by the learned Single Judge in the impugned judgment as also the pleading made as available in the paper book, wherein, the copy the writ petition has also been appended as per the High Court Rules.

22. The undisputed facts in this case is that the writ petitioner while working as Constable was assigned duty in Night shift for armed patrolling and in the night shift, some articles have been stolen of the Bokaro Steel Limited, based upon that, an FIR was instituted as also the departmental proceeding has been initiated against the writ petitioner.

23. The allegation, as per the memorandum of the charge is regarding failure in discharge of the official duty, for ready reference, the relevant content of the charge is being referred as under:-

"आरोप- ।

अनुशासन एवं िनयमों का ितकुल यह है िक बल सं ा 963513849 आर क बी डी िसंह "जे" समवाय केओसब इकाई, बीएसएल बोकारो को "जे" समवाय के रा ी पारी कत िववरण तैनाती चाट के अनुशार िदनांक 22/23,07,2001 को रा ी पारी म समय 2100 बजे से समय 0500 बजे तक कै ।। ोर म हिथयार एवं गोला बा के साथ ग िडयूटी के िलए तैनात िकया गया था तो िदनांक 22/23,07,2001 को रा ी समय म ही कुछ चोरो/ अपराधी त ों ारा ोर ।। से िकए गये 01.040 एम०टी० पीतल ै प के चोरी को रोकने म असमथ रहा। आर क का उपरो कृत काय कत के ित घोर लापरवाही, कदाचार एवं अनुशासनहीनता को दशाता है । अतः आरोप आरोिपत है ।

आरोप- ।।

अनुशासन एवं िनयमो का ितकुल यह है िक बल सं ा 9 LPA No.335/2021 963513849 आर क बी डी िसंह "जे" समवाय केओसब इकाई, बीएसएल बोकारो को िदनांक 22/23.07.2001 को रा ी समय म 2100 बजे से समय 0500 बजे तक कै ।।

ोर म हिथयार एवं गोला बा के साथ ग िडयूटी के िलए तैनात िकया गया था तो िदनांक 22/23.07.2001 को रा ी म कै ।। ोर म चोर ारा की गई समान की चोरी के संबंध म िदनांक 23.07.01 को रा ी म जब बोकारो िसटी थाना के पुिलस अिधकारी जॉच-पड़ताल करने हे तु कै ।।

प ंचे और सउपिन/का एस एन राय को साथ म ले कर ोर का ताला और दीवार को चेक िकए और उसके प ात पो कमा र सउपिन/का एस एन राय को पुिलस दल के साथ चोरो से बरामद िकया गया मान को दे खने के प ात वापस कै ।। प ंचे िफर भी सं ा 963513849 आर क बी डी िसंहकै ।। ोर म तैनात उपरो घिटत घटना के संबंध म स म अिधकारी को सूचना नहीं िदया वल सं ा 963513849 आर क बी डी िसंह का उपरो कृत काय कत के ित घोर लापरवाही, कदाचार एवं अनुशासनहीनता का ितक है । अतः आरोप आरोिपत है ।"

24. The criminal case has been set at motion on the ground of theft of 1.040 MT Brass Guides. However, the stolen material was recovered by the District Police of the Bokaro Steel City Police Station.

25. But, the admitted fact is that within the premises of the Unit, the materials of the Unit have been stolen.

26. It is also the admitted fact that the respondent writ petitioner was assigned duty to discharge his night shift duty nearby the place from where the material was stolen.

27. The departmental proceeding has proceeded. The enquiry officer has found the charge proved.

28. We have gone through the enquiry report and found therefrom that no complaint whatsoever has been agitated on behalf of the 10 LPA No.335/2021 respondent-writ petitioner regarding the violation of principle of natural justice or even seeking any documents, rather, it would be evident from the inquiry report that the writ petitioner has also put- forth his defence and even cross-examined the witnesses.

29. The inquiry officer has found the charge proved. The same has been accepted by the disciplinary authority and after following the procedure, the order of punishment of dismissal has been passed. The same has been upheld by the appellate authority vide order dated 26.12.2001.

30. A representation has been filed on 15.09.2008 informing that he has already been acquitted in the criminal case vide judgment dated 29.08.2008 and as such, the order of dismissal may be recalled. The said representation was not addressed on 04.10.2008.

31. The writ petitioner has approached to this Court by filing writ petition being W.P.(S) No.569 of 2009 by challenging the order passed by the disciplinary authority, the appellate authority and the order rejecting the representation dated 04.10.2008.

32. The appellate order has been quashed and set aside by the learned Single Judge on the ground of violation of principle of natural justice, since, the reason has been assigned that the relevant documents have not been supplied to the writ petitioner which was considered by the enquiry officer.

33. The writ petitioner thereafter remained silent for more than 8 years. The writ petitioner was acquitted from the criminal liability vide 11 LPA No.335/2021 judgment dated 29.08.2008, then, he has filed the representation dated 15.09.2008 for recall of the order of dismissal but the same was also rejected vide order dated 04.10.2008 and it is then only the writ petition has been filed.

34. It is thus, evident that the respondent-writ petitioner has admitted the order of dismissal for about 8 years and only thereafter, he has preferred the writ petition on rejection of his representation denying the recall of the order of dismissal on the ground of his acquittal from the criminal liability.

35. The ground has been taken on behalf of the respondent-writ petitioner that criminal case as per the FIR instituted against the writ petitioner was the basis of initiation of departmental proceeding.

36. It has been submitted that the moment, the judgment of acquittal has been passed in the criminal case, then, the normal course would be to recall the order of dismissal passed on conclusion of departmental proceeding.

37. The FIR admittedly was for theft of the material, i.e., Brass Guides and based upon that, the departmental proceeding has been initiated on the ground of theft of the article of the Bokaro Steel Limited from its premises. However, the writ petitioner has been acquitted. But the basis of initiation of departmental proceeding is that the dereliction in duty, misconduct and indiscipline.

38. The admitted fact as per the record of the criminal case as also the judgment of acquittal that the material was stolen and found 12 LPA No.335/2021 outside the premises of the Unit and the day when the occurrence of theft took place, the respondent/writ petitioner was on duty. Therefore, the allegation of dereliction of duty, misconduct and indiscipline has been leveled against the writ petitioner while initiating the departmental proceeding.

39. The questions, in such circumstances, are:

(i) As to whether after acquittal in the criminal case, if the departmental proceeding is quite different to that of the FIR, any bearing of judgment of acquittal in criminal case will be upon the final decision taken by the disciplinary authority of dismissal on its conclusion.

(ii) As to whether the charge as has been leveled in the memorandum of charge in the departmental proceeding, can be said to be unjust, when as per the judgment of acquittal, the material was found to stolen but due to no evidence against the writ petitioner, he has been acquitted but the fact remains that the writ petitioner was on duty and the material was found to be outside the premises of the Unit.

(iii) Whether, the interference shown by the learned Single Judge in the order passed by the appellate authority on the ground of violation of principle of natural justice after accepting the said order of dismissal for about eight years, can be said to be just and proper.

40. All the issues are interlinked and as such, are being taken together for its consideration.

13 LPA No.335/2021

41. But, before doing so, this Court is of the view that legal position in this respect needs to be referred herein. (M. Paul Anthony)

42. Reference of the judgment rendered by the Hon'ble Apex Court in the case of M. Paul. Anthony vs. Bharat Gold Mines Ltd., reported in (1999) 3 SCC 679 is required to be made in which one of the grounds had been taken of the acquittal in the criminal case. Law is well settled as has been settled in the said case that the departmental and judicial proceeding are on two different pedestal having no bearing to each other but the question is of complex nature then the departmental proceeding is to await outcome of the criminal case. Relevant paragraph of the said judgment is being referred as under:-

"22. 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 14 LPA No.335/2021 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, the administration may get rid of him at the earliest."

43. It is evident from the judicial pronouncements as have been settled by the Hon'ble Apex Court, as referred hereinabove that both the proceedings, i.e., the departmental proceeding and the criminal proceeding are to run parallel, having no bearing with each other. However, subject to exception as has been held by the Hon'ble Apex Court in the case of M. Paul. Anthony (supra), wherein, in a case of complex nature where the evidence cannot be segregated, rather, the evidences are overlapping to each other, then, the departmental proceeding is to wait for the outcome of the criminal case.

44. Here the admitted case is that no endeavour has ever been taken by the respondent for keeping the departmental proceeding in abeyance waiting for the outcome of the criminal proceeding, rather, the respondent writ petitioner has participated in the disciplinary proceeding as also contested the same.

45. The charge in the criminal case, although, subsequently, has been found to be not proved against the writ petitioner due to the reason of no evidence, but, it would be evident from the inquiry report that charge of dereliction, misconduct and indiscipline have been found to be proved.

46. The inquiry officer has taken into consideration that the day when the theft took place, the respondent/writ petitioner was on duty 15 LPA No.335/2021 and theft material was found from outside the premise of the Unit, based upon that, disciplinary authority has found the dereliction of duty against the writ petitioner, which led in formulating the charge for the purpose of initiation of departmental proceeding.

47. The inquiry officer has considered the aforesaid and after considering the defence taken by the respondent/writ petitioner, has found the charge proved.

48. The acquittal in criminal case is based upon no evidence, while, in the departmental proceeding, the inquiry officer has found the charge proved on appreciation of the rival stand taken on behalf of the disciplinary authority and the delinquent employee, i.e., respondent- writ petitioner.

49. The law since is settled that the criminal case and the departmental proceeding are based upon two parameters. In the criminal case, the charge is to be proved beyond all reasonable doubts, while, in the departmental proceeding, the principle applicable is the preponderance of probability. But it is not that merely on the basis of preponderance, the order of punishment is to be passed, rather, even in coming to the conclusion with respect to the issue of preponderance, the cogent evidence is to be there, reference in this regard may be made to the judgment rendered by the Hon'ble Apex Court in the case of State of Karnataka and Anr. Vs. Umesh, reported in (2022) 6 SCC 563, wherein, at paragraphs- 18 & 19 it has been held that mere on probabilities, no punishment can be imposed 16 LPA No.335/2021 in the departmental proceeding. For ready reference, the same is being referred as under:-

"18. In the course of the submissions, the respondents placed reliance on the decision in Union of India v. Gyan Chand Chattar [Union of India v. Gyan Chand Chattar, (2009) 12 SCC 78]. In that case, six charges were framed against the respondent. One of the charges was that he demanded a commission of 1% for paying the railway staff. The enquiry officer found all the six charges proved. The disciplinary authority agreed with those findings and imposed the punishment of reversion to a lower rank. Allowing the petition under Article 226 of the Constitution, the High Court observed that there was no evidence to hold that he was guilty of the charge of bribery since the witnesses only said that the motive/reason for not making the payment could be the expectation of a commission amount. The respondent placed reliance on the following passages from the decision : (SCC pp. 85 & 87, paras 21 & 31) "21. Such a serious charge of corruption requires to be proved to the hilt as it brings both civil and criminal consequences upon the employee concerned. He would be liable to be prosecuted and would also be liable to suffer severest penalty awardable in such cases. Therefore, such a grave charge of quasicriminal nature was required to be proved beyond the shadow of doubt and to the hilt. It cannot be proved on mere probabilities.

31. ... wherein it has been held that the punishment should always be proportionate to the gravity of the misconduct. However, in a case of corruption, the only punishment is dismissal from service. Therefore, the charge of corruption must always be dealt with keeping in mind that it has both civil and criminal consequences."

19. The observations in para 21 of Gyan Chand Chattar case [Union of India v. Gyan Chand Chattar, (2009) 12 SCC 78] are not the ratio decidendi of the case. These observations were made while discussing the judgment [Union of India v. Gyan Chand Chattar, 2002 SCC OnLine Guj 548] of the High Court. The ratio of the judgment emerges in the subsequent passages of the judgment, where the test of relevant material and 17 LPA No.335/2021 compliance with natural justice as laid down in Rattan Singh [State of Haryana v. Rattan Singh, (1977) 2 SCC 491] was reiterated : (Gyan Chand Chattar case [Union of India v. Gyan Chand Chattar, (2009) 12 SCC 78] , SCC p. 88, paras 35-36) "35. ... an enquiry is to be conducted against any person giving strict adherence to the statutory provisions and principles of natural justice. The charges should be specific, definite and giving details of the incident which formed the basis of charges. No enquiry can be sustained on vague charges. Enquiry has to be conducted fairly, objectively and not subjectively. Finding should not be perverse or unreasonable, nor the same should be based on conjectures and surmises. There is a distinction in proof and suspicion. Every act or omission on the part of the delinquent cannot be a misconduct. The authority must record reasons for arriving at the finding of fact in the context of the statute defining the misconduct.

36. In fact, initiation of the enquiry against the respondent appears to be the outcome of anguish of superior officers as there had been an agitation by the railway staff demanding the payment of pay and allowances and they detained the train illegally and there has been too much hue and cry for several hours on the railway station. The enquiry officer has taken into consideration the nonexisting material and failed to consider the relevant material and finding of all facts recorded by him cannot be sustained in the eye of the law." (emphasis supplied) On the charge of corruption, the Court observed in the above decision that there was no relevant material to sustain the conviction of the respondent since there was only hearsay evidence where the witnesses assumed that the motive for not paying the railway staff "could be" corruption. Therefore, the standard that was applied by the Court for determining the validity of the departmental proceedings was whether (i) there was relevant material for arriving at the finding; and (ii) the principles of natural justice were complied with."

50. Further, in the case of High Court of Judicature at Bombay Vs. Uday Singh and others, reported in (1997) 5 SCC 129, the law has been laid down that in the departmental proceeding the cogent evidence is required to be there for inflicting punishment. For ready reference, paragraph-10 is being referred as under:

"-------- the doctrine of proof beyond doubt has no application. Preponderance of probabilities and some material on record would be necessary to reach a conclusion whether or not the 18 LPA No.335/2021 delinquent has committed misconduct-------."

51. This Court has considered the inquiry report on the premise of the aforesaid principle as to whether the charge which has been proved against the writ petitioner by the inquiry officer, will be said to be merely on the basis of preponderance of probability having any nexus with any cogent evidence.

52. This Court has found after going through the inquiry report that it is not that only on the preponderance of probability, the charge has been found to be proved against the respondent writ petitioner, rather, the evidence of the various witnesses have been recorded, as also, they have been cross-examined by the writ petitioner and on taking into consideration, the rival ground taken on behalf of the parties, the charge has been found to be proved. Therefore, it is not a case where there is no cogent evidence in coming to the conclusion on the basis of the principle of preponderance of probability, the inquiry officer has reached to the conclusion of proving the charge against the writ petitioner.

53. The moment, the charge has been proved which has been accepted by the disciplinary authority, then, the charge will remain intact and the same is to be questioned by the delinquent employee, if aggrieved.

54. However, the writ petitioner has challenged the same by filing an appeal but the appellate authority has also upheld the order passed by the disciplinary authority.

55. The writ petitioner has taken the plea of violation of principle of 19 LPA No.335/2021 natural justice of document having not been supplied by the inquiry officer. But, it is evident from the inquiry report that no such ground has ever been taken by the delinquent employee in course of inquiry proceeding and even not before the appellate authority, rather, the order of dismissal as also the order passed by the appellate authority has been accepted for about eight years.

56. The respondent writ petitioner when acquitted has made a representation on 15.09.2008 for recall of the order of dismissal. The question of recall of the order of dismissal, based upon the acquittal, will not be permissible in the facts and circumstances of the case, reason being that, there is specific finding recorded by the inquiry officer, which on acceptance by the disciplinary authority, has been acted upon by passing the order of punishment of dismissal.

57. The principle for criminal proceeding and the disciplinary proceeding since are on two different lines being allowed to run parallel, then, where is the question of bearing of consequence of criminal proceeding which resulted in acquittal to bind the proceeding already concluded under the Conduct Rules that too after accepting the order of dismissal fairly for a period of about eight years.

58. It has been contended on behalf of the respondent writ petitioner that due to pendency of the criminal case, the order of dismissal had not been challenged and the same has only been challenged after acquittal and the denial of the recall of the order of dismissal was passed but the said ground cannot be said to be just 20 LPA No.335/2021 and proper, reason being that, the dismissal order if would have been passed without conclusion of the disciplinary proceeding, rather, based upon the outcome of the criminal case if resulted into conviction and subsequent thereto, the judgment of conviction if reversed by the appellate authority to that of acquittal, then, in such circumstances, the order of dismissal is required to be recalled, reason being that the very basis of dismissal will be the conviction in the criminal case and the moment, the conviction will be reversed to that of acquittal, then the fundamental of the decision of dismissal will be said to be not in existence and in that view of the matter, the consequence would be that the order of dismissal has to go, since, the foundation itself is not in existence.

59. But that is not the situation herein, rather, the writ petitioner has allowed to continue the departmental proceeding without any demeanour and contested the same, as would be evident from the inquiry report and even accepted the order passed by the disciplinary authority/appellate authority about eight years and thereafter, he has made prayer requesting to recall the order of dismissal on the ground of acquittal in criminal case.

60. Therefore, this Court is of the view that the order of dismissal has been passed by the disciplinary authority on conclusion of the regular departmental proceeding having based upon the finding recorded by the inquiry officer and as such, the judgment of acquittal in the criminal case, will have no bearing.

21 LPA No.335/2021

61. The contention on behalf of the petitioner/respondent has been raised that the very fundamental of the disciplinary authority is the FIR and the moment the FIR has been culminated into acquittal, the very charge which is the basis of the disciplinary authority, will have to be quashed.

62. But, this Court is not in agreement with this ground, reason being that, in the FIR, the allegation is theft of material from the premise of the Unit and in the departmental proceeding the allegation is of dereliction of duty, misconduct and indiscipline.

63. The judgment of acquittal, as would appear from the judgment passed in the criminal case is based upon no evidence. However, the charge has been framed that the material was recovered from outside the premise which suggests that the material was stolen, otherwise, it could not have been found outside the premise and if in such circumstances, the charge has been framed on the ground of dereliction of duty, misconduct and indiscipline which cannot be said to be unjust and improper.

64. The learned Single Judge has passed an order quashing the order passed by the appellate authority by remitting it for passing the order afresh on the ground of violation of principle of natural justice but as we have already referred hereinabove by making reference of the inquiry report that no issue of violation of principle of natural justice has ever been raised by the writ petitioner.

65. Further, the learned Single Judge has taken note at paragraph- 22 LPA No.335/2021 17 by admitting the fact that the learned counsel for the petitioner though has argued the grounds of non-supply of documents relied upon by the enquiry officer, non-examination of defence witnesses, finding based on surmises and conjectures, proportionality of punishment, has not been pleaded in the writ petition, but even then, looking to the facts and circumstances of the case and in the interest of justice, the order in appeal should be quashed and the appellate authority should reconsider the case of the writ petitioner. It is thus, evident that the learned Single in the interest of justice, has quashed the order of appeal.

66. The learned Single Judge ought to have clarified that what led him to come to the conclusion in quashing the appellate order by making the reference the word "in the interest of justice". The word "in the interest of justice" applies for both the parties and not in isolation to the delinquent officer, rather, the proper course is to weigh balance for coming to the conclusion, based upon the proposition of law, then, it will be said to be in the interest of justice.

67. Further, the learned Single Judge, although, has quashed the order of appellate authority dated 26.12.2001 but the order passed in the representation vide order dated 04.10.2008, was also challenged, has not been quashed, meaning thereby, the order passed by the appellate authority on 26.12.2001, has been quashed and set aside after acceptance of the said order for about eight years that too without any cogent reason assigned in the impugned order. 23 LPA No.335/2021

68. This Court, on consideration of the aforesaid reason, is of the view that the judgment passed by learned Single Judge, is not found to be just and proper and as such, the same needs to be interfered with on the basis of the discussion made hereinabove.

69. Accordingly, order dated 04.05.2021 passed by the learned Single Judge of this Court in W.P.(S) No.569 of 2009, is, hereby quashed and set aside.

70. In the result, the instant appeal is allowed.

71. In consequence thereof, the writ petition being W.P.(S) No.569 of 2009 is dismissed.

72. Pending Interlocutory Application(s), if any, stands disposed of.

(Sujit Narayan Prasad, J.) I Agree (Arun Kumar Rai, J.) (Arun Kumar Rai, J.) Rohit/- A.F.R. 24 LPA No.335/2021

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