Central Administrative Tribunal - Delhi
Narinder Kumar Jain vs Union Of India Through The Secretary on 26 August, 2010
Central Administrative Tribunal Principal Bench OA No.975/2009 New Delhi this the 26th day of August, 2010. Honble Mr. Shanker Raju, Member (J) Honble Dr. (Mrs.) Veena Chotray, Member (A) Narinder Kumar Jain, S/o Shri P.C. Jain, R/o H.No.14, Sector-7, Chandigarh. -Applicant (By Advocate Shri G.D. Gupta, Senior Counsel with Shri S.K. Sinha, Advocate) -Versus- 1. Union of India through the Secretary, Department of Personnel & Training Ministry of Personnel, Public Grievances and Pensions, North Block, New Delhi. 2. The Chief Secretary, Govt. of Haryana, Civil Secretariat, Chandigarh. -Respondents (By Advocates Shri R.V. Sinha and Shri Yashpal Singh) O R D E R Honble Mr. Shanker Raju, Member (J):
In the doctrine of precedent in Central Board of Dawoodi Bohra Community & Another v. State of Maharashtra & Another, (2005) SCC (L&S) 246 it has been laid down by a Constitution Bench of the Apex Court that a decision delivered by a Bench of larger strength is binding on any subsequent Bench of lesser or co-equal strength. It is impermissible for the Bench of lesser strength to disagree or dissent with the judgement of a Bench of larger strength. Per incuriam are those decisions which are rendered in ignorance of a previous binding decision such as a decision of its own or of a Court of co-ordinate or higher jurisdiction or in ignorance of the terms of a statute or of a rule having the force of law.
2. Ratio decidendi has to be inferred by reading the judgment in its entirety, as held by the Apex Court in C. Balachandran & Ors. v. State of Kerala & Ors., (2009) 1 SCC (L&S) 610.
3. With this backdrop the issue before us is initiation and continuation of disciplinary proceedings on the same charges, including evidence and documents on which government servant has been acquitted honorably on merits. As the facts are foundation, a brief factual matrix is reproduced, transpires that applicant, an IAS officer of 1987 batch of Haryana cadre during his posting as Home Secretary, UT of Chandigarh on inter-State deputation was implicated in a case FIR No.RC-3/2000-CHG. dated 6.4.2001 on the allegations relating to prevention of corruption under Sections 420, 467 and 471 of IPC. The Special Judge took cognizance of chargesheet on 6.4.2000. On identical allegations with common documents and evidence a chargesheet was issued to the applicant under Rule 8 of the All India Services (Discipline & Appeal) Rules, 1968 (hereinafter called as A.I.S. Rules) on 5.9.2002. Applicant represented for keeping the enquiry in abeyance till the final disposal of the criminal proceedings, which was denied on 20.12.2002, where the applicant has been directed to submit his defence pursuant to the memorandum in the disciplinary proceedings. However, applicant being aggrieved by the aforesaid order preferred OA No.1064/2003 before the Principal Bench of the Tribunal, wherein an order passed on 30.01.2004 directed respondents to keep the disciplinary proceedings in abeyance till 31.12.2004 with liberty to the respondents to approach the Tribunal for resumption of the disciplinary proceedings. Finally, an order passed in MA by the Tribunal further kept the enquiry in abeyance till 15.09.2007 with liberty to respondents to resume the proceedings from 16.09.2007.
4. Accordingly, the respondents passed an order on 17.3.2008 to appoint the I.O. forfeiting the right of the applicant to file his written statement of defence on the ground that earlier when the documents were served an opportunity was given in 2002 to him granting 10 days time. Failure to file written statement of defence resulted in appointment of IO.
5. Applicant preferred a representation against the appointment and sought compliance of Rule 8 (5) of the A.I.S. Rules.
6. On 11.10.2008 applicant was acquitted by a judgment of the Special Court at Chandigarh, which was followed by a representation dated 14.11.2008 by the applicant for dropping the disciplinary proceedings on being acquittal. However, an order passed on 28.11.2008 appointed another IO and on 23.3.2009 applicant was directed to be present for enquiry, which he responded to through his representation-cum-defence statement on 23.3.2009.
7. IO by an order dated 24.3.2009 directed applicant to appear in the enquiry or else the same would be conducted ex-parte. Being aggrieved applicant preferred this OA, where an order on interim relief dated 28.4.2009 rejected the request of applicant, which when assailed before the High Court of Delhi directed respondents not to pass final order and for expeditious disposal of the OA by the Tribunal the Writ Petition was disposed of.
8. Learned Senior Counsel Shri G.D. Gupta has propagated before us, relied upon Rules 8 (5) and (6) of the A.I.S. Rules and decision of this Tribunal in Rama Shankar Mishra v. Union of India & others, decided on 22.09.2006 to contend that depriving an opportunity to submit statement of defence to the applicant and appointment of IO is an infirmity, which vitiates the enquiry.
9. Learned senior counsel has relied upon OM issued under A.I.S. Rules on 16.8.1978 and the decision of the Full Bench of the A.P. High Court in Govt. of A.P. v. M.A. Majeed and Anr., 2006 (2) ATJ 581. In the above backdrop, the learned counsel would contend that upto 15.09.2007 applicant was not supposed to disclose his defence despite an opportunity given in 2002 to file his written statement. Thereupon, on resumption of enquiry when the applicant was not afforded an opportunity by an express communication to submit statement of defence and appointment of Inquiry Officer (IO) on 17.03.2008 without awaiting for the written statement of defence of applicant, despite applicant has represented, is in violation of Rule 8 (5) & (6) of the A.I.S. Rules as well as the decision of in Abdul Majeeds case (supra), which vitiates the enquiry.
10. Learned counsel states that after acquittal of the applicant, which is absolutely on merits and a clean acquittal, enquiry cannot be resumed or continued against him. Learned counsel has relied upon the decision of the Apex Court in Capt. M. Paul Anthony v. Bharat Gold Mines Ltd., AIR 1999 SC 1416 and G.M. Tank v. State of Gujarat, (2005) 6 SCC 446 to buttress his plea.
11. By taking us to the judgment of the trial court it is stated that in paragraph 28 along with co-accused the trial when concluded a specific finding of failure of prosecution to prove beyond doubt the conspiracy or any abuse of the position as a public servant or adopted corrupt or illegal means, to obtain for himself or, for any other person, any valuable thing or pecuniary advantage has been recorded in favour of applicant and against the prosecution. It is stated that the judgment delivered by the trial court has been on merit as the prosecution has not proved conclusively the charge against applicant. Learned counsel relied upon the decision of the Constitution Bench of the Apex Court in R.P. Kapur v. Union of India, AIR 1964 SC 787 to contend that once there has been an acquittal of a government servant on honorable basis, a departmental enquiry cannot be initiated if the charges in disciplinary proceedings are identical with same set of evidence and documents.
12. Shri G.D. Gupta has extensively read the decision in G.M. Tank (supra) and Capt. M. Paul Anthony (supra) to contend that in the parallel proceedings, which is no more res integra in the present case the charges founded on the same set of facts with common evidence and documents there is no additional material or different charge levelled by the respondents while holding disciplinary proceedings a finding recorded on judicial side with strict evaluation of evidence the finding recorded by a quasi-judicial authority in disciplinary proceedings would get overridden it. As such, the need for holding disciplinary proceedings post acquittal is obviated.
13. On the other hand, learned counsel of respondents vehemently opposed the contentions and cited the following decisions:
i) Noida Entreprenerus Association v. Noida and others, (2007) 10 SCC 385.
ii) Ajit Kumar Nag v. General Manager (P), Indian Oil Corpn. Ltd., Haldia and others, (2005) 7 SCC 764.
iii) Corporation of the City of Nagpur, Civil Lines, Nagpur and another v. Ramchandra and others, (1981) 2 SCC 714.
iv) Chikkanna v. Joint Director, 2006 (7) SLR 794.
v) Full Bench decision of the Orissa High Court in Jaya Ram Panda v. B.V. Rayani, AIR 1989 (Orissa) 109.
vi) Union of India v. Upendra Singh, JT 1994 (2) SLJ 77; and
vii) Union of India & another v. Kunnisetty Satyanarayana, AIR 2007 SC 906.
It is contended that in a judicial review at an interlocutory stage disciplinary proceedings cannot be assailed. It is further contended that while the chargesheet was issued to applicant in 2002, 10 days time was given to him to file written statement of defence, but even after the opportunity, having failed to file and despite orders of the Tribunal to keep the enquiry in abeyance and liberty to the respondents to resume it from 16.09.2007 failure at that stage to file written statement and by not exercising this option the only purpose of the applicant was to delay the proceedings. It is stated that the defence now taken by the applicant could be taken by him in the enquiry. Learned counsel states that as per para 28 of the judgment of the trial court applicant has been given the benefit of doubt the acquittal is not on merit. It is also stated by relying upon the above cases that there has been no bar to proceed the applicant in disciplinary proceedings. Learned counsel has also explained to us as to what amounts to merit acquittal in a criminal trial.
14. Learned counsel states that finding of criminal court is not binding either on IO or disciplinary authority, whereas the purpose of trial against the government servant may be in the larger interest of public but a disciplinary proceeding is proceeded on a conduct relating to service.
15. Learned counsel states that acquittal of the applicant is not final, as an appeal has been preferred before the High Court of Punjab & Haryana High Court at Chandigarh and though prima facie acquittal has a presumption of innocence to the accused but the finality to his acquittal would not be preempted till the decision of the appellate Court is available. Learned counsel states that at best an acquittal is one of the grounds that too an obiter dicta by the Apex Court to consider proportionality of penalty, yet it is stated that the defence of the applicant though not submitted in the form of statement of defence by the applicant but his right to cross-examination with reasonable opportunity would be accorded to him during the course of enquiry and mere empty formality would not be a basis for quashing the enquiry.
16. Learned counsel has also stated that what would apply from the decision of the Apex Court or High Court, which is binding on the Tribunal, is the ratio decidendi and in judicial review what is to be probed into is not the decision but the decision-making process by the respondents on quasi-judicial side.
17. Rejoinder reiterates the pleas taken in the OA with an additional submission on the basis of the order-sheet of the enquiry dated 6.7.2010 where it is stated that the request of the applicant for providing statements of prosecution and defence has been disallowed. Learned senior counsel would further contend that the representations of the applicant have been compositely dealt with in an order passed on 11.08.2009, where the fact of acquittal and examining the reasons and grounds to acquit applicant having not been examined on preempting that applicant by agitating the matter before the Tribunal has forfeited his right to file written statement of defence shows the bias and bent of mind of the respondents where the legal right of the applicant has not been considered in the correct perspective.
18. We have carefully considered the rival contentions of the parties and perused the material on record.
19. Before we proceed to pen down the case laws on the issue of acquittal and resultant disciplinary proceedings and its maintainability the conception as to acquittal in criminal jurisprudence has to be made clear.
20. Under the Criminal Procedure Code acquittal has not been defined but has been provided for a trial in the Sessions Court under Section 235 and for a Magistrate trial under Section 248 prescribing that when the accused is not found guilty he is acquitted. However, there is no concept in Cr. PC as to whether an acquittal would be honorable or otherwise? However, an honorable acquittal would not be an acquittal where the trial court records that there is some evidence against the accused but giving benefit of doubt once the accused has been acquitted the same would not be honorable. But if an accused is acquitted after full consideration of the evidence, all the prosecution witnesses were disbelieved and the prosecution has miserably failed to prove the charge, it would amount to honorable acquittal, as held in Haffizuddin Inayatullah Kazi v. J.C. Agarwal, 1980 Bombay CR 984. An acquittal is also defined in General Manager, Northern Railway v. Swaroopraj, AIR 1959 (Raj) 55 that effect of acquittal is exoneration of the blame or the charges levelled. Acquittal on merits means an acquittal after trial on consideration of evidence as distinguished from and in contradistinction to acquittal, which occur due to certain technical defects, i.e., for want of sanction etc. benefit of doubt or insufficiency of evidence, as ruled in Jogender Carabadu v. Lingaraj, AIR 1970 Orissa 91.
21. With the above backdrop, acquittal as per the Constitution Bench decision in M.G. Aggarwal v. State of Maharashtra, AIR 1963 SC 200 as reported Bhure Lal v. State of U.P., (2008) 10 SCC 450 an acquittal presumes innocence of an accused person and such presumption is strengthened by the order of acquittal passed by the trial court.
22. As the issue before us also involves acquittal being challenged in appeal, which is provided under Sections 374 and 378 of the Cr. PC. The Apex Court as regards proving beyond reasonable doubt in Babu Ram v. State of Punjab, (2008) 3 SCC 709 laid down that in the light of the evidence and background of the well settled proposition of law and in view of the improbabilities serious omissions and infirmities, the interested nature of evidence and other circumstances it is clear that the prosecution has failed to prove the case against the applicant beyond reasonable doubt. As held by the Apex Court in Arulvelu v. State, (2009) 10 SCC 206 that in an appeal against acquittal accused is presumed to be innocent until proved guilty and this presumption before the trial court on acquittal bolsters the presumption that he is innocent.
23. It is relevant for adjudication of the issue before us to cite the case laws pertaining to post-acquittal scenario in the context of disciplinary proceedings. It is trite in law that the criminal trial and the offence alleged, which is after being investigated put on trial and a disciplinary proceeding alleging misconduct unbecoming of a government servant in discharge of ones official duties and also to keep oneself a model employee the standard of proof in both the proceedings is different. Whereas the criminal proceedings where the ultimate result would infringe personal liberty of a person on imprisonment, which is guaranteed under Article 21 of the Constitution of India, the scrutiny of evidence and the proof is strict with much meticulous the application of mind as per the rules of evidence under the Indian Evidence Act, 1872, whereas the disciplinary proceedings is founded on the principle of preponderance of probability in exclusion of strict rules of evidence to arrive at misconduct alleged against the applicant and its proof and thereafter consequent action. In a disciplinary proceeding apart from designated penalties prescribed under the relevant rules, dismissal and removal from service cannot be ruled out.
24. However, in a fact situation where both criminal prosecution as well as disciplinary proceedings is inseparable, without any difference as to the charge, facts constituting the charge based on common evidence and documents the principle of staying the proceedings in department till pendency of the criminal trial is no more res integra. The Apex Court in a catena of decisions laid down that no inexplicable criteria could be evolved and it depends upon the circumstances of each case. However, the condition precedent apart from commonality of charges, evidence and documents is also the gravity of the charge and complicated question of facts and law.
25. However, a situation arises when a government servant accused of a criminal offence is acquitted from the charges then the decision to initiate disciplinary proceedings depends upon the facts and circumstances and has to be gone into on individuality of the case. No hard and fast formula has been evolved. A decision to initiate or to continue the proceedings after criminal trial has been left to the discretion of the departmental authorities, which are in the matter of enquiry, are discharging quasi-judicial functions. The department is at the outset not bound by the acquittal of the trial court if it is arrived at on a technicality or on benefit of doubt, however, an honorable acquittal on merits the situation is different. Before a disciplinary proceeding is initiated, as the discretion is vested in the authorities a conscious decision and the reasons to institute disciplinary proceedings on the identical charges with the same evidence on which a government servant is acquitted of an offence with reasons are required on application of mind and this discretion not being unfettered has to be exercised judiciously by weighing all the factors for and against the concerned person. An acquittal where the entire evidence has been strictly scanned and a specific finding as to non-involvement of the person in the criminal offence has been arrived at, the judgment of the trial court cannot be isolated on the observations in the penultimate paragraph acquitting the accused but has to be on holistic reading of the judgment and findings arrived at on each ingredient of the offence, a conscious decision as to whether acquittal is on merits or not, has to be arrived at.
26. Before the Apex Court in R.P. Kapurs case (supra) where the suspension was an issue, as regards permissibility of an enquiry the Apex Court categorically recorded as under:
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.
27. In Sulekh Chand (supra) a police officer, who was involved in a criminal case under Prevention of Corruption Act on being acquitted on merits the necessary corollary as a consequence has been held to have not caused any blot on the service and need for departmental enquiry is obviated. It is also ruled that an acquittal on technical grounds the authorities are entitled to conduct departmental enquiry on the same charges.
28. In Manager, Reserve Bank of India v. S. Mani, (2005) SCC (L&S) 609 a three-judge Bench of the Apex Court held that on a benefit of doubt judgment of acquittal in favour of an employee would not be binding and an enquiry would be on. It was held that after acquittal it is open for the employer to examine the judgment and take a decision as to holding of an enquiry.
29. In Union of India v. Naman Singh Sekhawat, (2008) 1 SCC (L&S) 1053 on the impact of disciplinary proceedings the following are relevant to be highlighted:
28. There cannot be any doubt whatsoever, as has been submitted by the learned Additional Solicitor General, that initiation of departmental proceeding is permissible even after the judgment of acquittal is recorded by the criminal court. But the same would not mean that a proceeding would be initiated only because it is lawful to do so. A departmental proceeding could be initiated if the department intended to adduce any evidence which is in its power and possession to prove the charges against the delinquent officer. Such a proceeding must be initiated bona fide. The action of the authority even in this behalf must be reasonable and fair.
29. Reliance has been placed on T.N.C.S. Corporation Ltd. and others vs. K. Meerabai : (2006) 2 SCC 255 wherein this court opined :-
"30. The scope of disciplinary proceedings and the scope of criminal proceedings in a Court of Criminal law are quite distinct, exclusive and independent of each other. The prosecution proceedings launched against the respondent herein were in respect of offences punishable under Sections 409 and 477-A I.P.C., whereas the Departmental Proceedings as initiated against her were in respect of the charges of misappropriation and other fraudulent practices such as deliberate omission to bring into accounts the stock received showing bogus issues in the records, falsification of accounts, submission of defective accounts, tampering of records, manipulation of accounts and records etc. Thus, the respondent herein was proceeded against for quite different charges and on different sets of facts before the Court of Chief Judicial Magistrate, on the one hand, and before the Departmental Enquiry on the other."
It was, thus, a case where the charges were different.
30. In Ajit Kumar Nag vs. General Manager (PJ), Indian Oil Corporation Ltd., Haldia and others : (2005) 7 SCC 764 this court opined that acquittal of a delinquent by a criminal court would not preclude an employer from taking action by the disciplinary authority, if it is otherwise permissible. Such a departmental proceeding, however, cannot be initiated mala fide. It must be conducted in accordance with law.
An acquittal of a delinquent ipso facto may not absolve him from undergoing disciplinary inquiry. However, where the charges are absolutely identical, ordinarily the same would not be taken resorted to.
We may notice that in Ajit Kumar Nag (supra) the order of dismissal was found to have been legally proved despite the fact that the delinquent was acquitted by the court of law.
If the Inquiry Officer is biased, no action could have been be taken on the basis thereof. It renders the proceeding a nullity. Such an inherent defect in the disciplinary proceeding cannot be cured by an order of the appellate authority. An order which is void cannot be validated by the appellate authority as the materials which were not brought on record could not be taken into consideration by it.
In Ajit Kumar Nag (supra) it was held :-
"44. We are aware of the normal rule that a person must have a fair trial and a fair appeal and he cannot be asked to be satisfied with an unfair trial and a fair appeal. We are also conscious of the general principle that pre-decisional hearing is better and should always be preferred to post- decisional hearing. We are further aware that it has been stated that apart from Laws of Men, Laws of God also observe the rule of audi alteram partem. It has been stated that the first hearing in human history was given in the Garden of Eden. God did not pass sentence upon Adam and Eve before giving an opportunity to show cause as to why they had eaten forbidden fruit. [See R. v. University of Cambridge]. But we are also aware that principles of natural justice are not rigid or immutable and hence they cannot be imprisoned in a straight-jacket. They must yield to and change with exigencies of situations. They must be confined within their limits and cannot be allowed to run wild. It has been stated ;
"To do a great right after all, it is permissible sometimes to do a little wrong".
31. Reliance has also been placed on Commissioner of Police, New Delhi vs. Narender Singh : (2006) 4 SCC 265 wherein this Court was dealing with a case of a police constable, who was accused of committing theft of arms. He made a confession of his involvement. It was found to be inadmissible in the criminal proceeding. In that factual backdrop this Court held :-
"12. It is not in dispute that the standard of proof required in recording a finding of conviction in a criminal case and in a departmental proceeding are distinct and different. Whereas in a criminal case, it is essential to prove a charge beyond all reasonable doubt, in a departmental proceeding preponderance of probability would serve the purpose. [See Kamaladevi Agarwal v. State of W.B.]. 13. It is now well-settled by reason of a catena of decisions of this Court that if an employee has been acquitted of a criminal charge, the same by itself would not be a ground not to initiate a departmental proceeding against him or to drop the same in the event an order of acquittal is passed. "
32. It is not a case where a mere benefit of doubt had been given to the respondent in the criminal proceeding. The criminal court has given a positive finding that the prosecution has not been able to prove that the accused had misappropriated the goods. His visit to the border for discharging his duties did not tantamount to misuse of the post or the authority. No evidence has been presented that he did not have the authority to go to the border side on official duties and even the department had not forbidden him from going to that place.
It was held that as misappropriation of the property has not been proved, the question of any criminal conspiracy did not arise.
No evidence had been adduced to bring home the charge of criminal conspiracy, which is an independent crime.
33. Respondent was found to have been carrying the official revolver for his safety. No evidence was also adduced to establish that when confronted by the police party, he had tried to show or used the same or threatened them with the same or used the official revolver with the intention of doing illegal work.
That the respondent was allotted a jeep and also allowed to carry with him the official revolver, was accepted by the prosecution side in the criminal case, and thus, he was found not guilty under Section 27 of the Arms Act.
34. In Sawai Singh vs. State of Rajasthan : (1986) 3 SCC 454 this Court opined :-"16 _. But in a departmental enquiry entailing consequences like loss of job which now-a-days means loss of livelihood, there must be fair play in action, in respect of an order involving adverse or penal consequences against an employee, there must be investigations to the charges consistent with the requirement of the situation in accordance with the principles of natural justice in so far as these are applicable in a particular situation.17. The application of those principles of natural justice must always be in conformity with the scheme of the Act and the subject matter of the case. It is not possible to lay down any rigid rules as to which principle of natural justice is to be applied. There is no such thing as technical natural justice. The requirements of natural justice depend upon the facts and circumstances of the case, the nature of the enquiry, the rules under which the Tribunal is acting, the subject matter to be dealt with and so on. Concept of fair play in action which is the basis of natural justice must depend upon the particular lis between the parties."
35. In Jasbir Singh vs. Punjab & Sind Bank and others : 2006 (11) SCALE 204 it was held :- "7 The learned counsel for the respondent contended that the decision of this Court has no application. He may be right. But, it is not necessary for us to delve deep into the matter as we are of the opinion that the judgment in civil matter having attained finality, the same was binding on Respondent-Bank."
36. In M.V. Bijlani vs. Union of India and others : (2006) 8 SCC 8 this Court st ated the law in the following terms:-
"25. Although the charges in a departmental proceedings are not required to be proved like a criminal trial, i.e., beyond all reasonable doubts, we cannot lose sight of the fact that the Enquiry Officer performs a quasi-judicial function, who upon analysing the documents must arrive at a conclusion that there had been a preponderance of probability to prove the charges on the basis of materials on record. While doing so, he cannot take into consideration any irrelevant fact. He cannot refuse to consider the relevant facts. He cannot shift the burden of proof. He cannot reject the relevant testimony of the witnesses only on the basis of surmises and conjectures. He cannot enquire into the allegations with which the delinquent officer had not been charged with."
30. In State Bank of Hyderabad and another v. P. Kata Rao, (2009) 2 SCC (L&S) 489 on acquittal in criminal trial whether constitutes a bar on initiation of the enquiry the following has been laid down:-
20. The legal principle enunciated to the effect that on the same set of facts the delinquent shall not be proceeded in a departmental proceedings and in a criminal case simultaneously, has, however, been deviated from. The dicta of this Court in Capt. M. Paul Anthony v. Bharat Gold Mines Ltd. and Another [(1999) 3 SCC 679], however, remains unshaken although the applicability thereof had been found to be dependant on the fact situation obtaining in each case.
21. The case at hand is an exceptional one. Respondent was a responsible officer. He was holding a position of trust and confidence. He was proceeded with both on the charges of criminal misconduct as also civil misconduct on the same set of facts, subject, of course, to the exception that charges Nos. 11 and 15 stricto sensu were not the subject matter of criminal proceedings, as integrity and diligence, however, were not in question. Before us also it has not been contended that he had made any personal gain.
22. The High Court in its judgment categorically opined that he merely had committed some inadvertent mistakes. He did not have any intention to commit any misconduct. The purported misconduct on his part was neither willful nor there existed any fraudulent intention on his part to falsify the account. The High Court opined that the prosecution had failed to bring home the guilt of the accused beyond all reasonable doubts for the offences punishable under the provisions under the Indian Penal Code.
The judgment of the High Court states a definite view. It opined that the finding of the learned Trial Judge holding him guilty under Section 477A of the Indian Penal Code and the provisions of the Prevention of Corruption Act was perverse. The circumstances in favour of the accused, the High Court inferred, had wrongly been attributed against him by the Trial Judge.
23. A learned Single Judge of the High Court in his judgment dated 7.02.2005 only upon taking into consideration the observations made by the High Court in the said criminal appeal but also the other circumstances, brought on record, directed fresh consideration and disposal of the matter in accordance with the law upon giving an opportunity of hearing to the respondent. The Division Bench of the High Court, in the first round of litigation, noticed that the entire record had been perused by the learned Single Judge. It was found that the original authority had imposed a punishment of only stoppage of one increment with cumulative effect which was modified by the appellate authority into one of withholding of increment without cumulative effect and held that failure of the disciplinary and appellate authorities to take into consideration modified punishment has caused serious prejudice to the respondent.
24. It was furthermore noticed that in purported compliance of the directions issued by the learned Single Judge, the penalty of dismissal from service was re-imposed on the respondent.
25. The Division Bench, however, disagreed with the conclusion of imposition of stoppage of one increment. Even then it observed that in the facts and circumstances of this case the issue relating to dismissal of respondent needs reconsideration. It was directed:
"While doing so, the concerned authority shall keep in view the following factors:(i) Both the disciplinary authority and this Court in Criminal Appeal No. 12 of 1996 found the respondent not guilty of charges of misappropriation, deriving the personal benefit for himself and causing loss to the bank.(ii) The effect of the Judgment of this Court in Criminal Appeal No. 12 of 1996 in the light of the decision of the Supreme Court in M. Paul Anthony's case (supra) and G.M. Tank's case (supra).(iii) Modified punishment of withholding of increment without cumulative effect imposed on the respondent is a minor penalty unlike the punishment of withholding of increment with cumulative effect, which was held to be a major penalty by the Supreme Court in Kulwant Singh Gill's case (supra).(iv) While considering the proportionality of the punishment, distinction lies between the procedural irregularities constituting misconduct from the acts of misappropriation of finances, causing loss to the institution, etc."
26. We do not see any reason keeping in view the peculiar facts and circumstances of the case to disagree with the said findings, although we would like to reiterate the principles of law to which we have referred to hereinbefore.
27. We may, however, notice that Mr. Sorabjee has strongly relied upon a decision of this Court in Commissioner of Police, New Delhi v. Narender Singh [(2006) 4 SCC 265] to contend that therein initiation of a departmental proceeding was upheld inter alia on the ground that although a confession made by an accused in a criminal proceeding would not be admissible having regard to Sections 25 and 27 of the Evidence Act, the same would not be a bar to proceed against him departmentally.
In that case it was held:
"13. It is now well settled by reason of a catena of decisions of this Court that if an employee has been acquitted of a criminal charge, the same by itself would not be a ground not to initiate a departmental proceeding against him or to drop the same in the event an order of acquittal is passed."
This court therein considered the nature of the confessions made by the delinquent officer and the implication thereof having regard to Sections 25 and 26 of the Evidence Act to hold that the Tribunal was not correct in holding that the confessional statement was not admissible in the departmental proceeding.
In G.M. Tank v. State of Gujarat and Others [(2006) 5 SCC 446], noticing a large number of decisions operating in the field, it was observed:
"30. The judgments relied on by the learned counsel appearing for the respondents are 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 its judicial pronouncement with the finding that the charge has not been proved. It is also to be noticed that 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.31. In our opinion, such facts and evidence in the departmental 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 the 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 case1 will apply. We, therefore, hold that the appeal filed by the appellant deserves to be allowed."
Each case, therefore, must be determined on its own facts.
28. However, we may notice that this Court, in State Bank of India and Others v. T.J. Paul [(1999) 4 SCC 759], noticed:
"7. The above orders were questioned in a writ petition. The learned Single Judge while allowing the writ petition held that the finding of the enquiry officer on Item 23 was that no financial loss was proved and if it was a case of not taking adequate "security" from the loaners and in not obtaining ratification as per Head Office instructions, these charges were not sufficient _ in view of Rules 22(vi)(c) and (d) read with sub-rule (vii) _ for imposing a penalty of dismissal or removal. Only a minor penalty could be imposed . As per the enquiry officer's report there was no actual loss caused by reason of any act of the employee wilfully done. There was no evidence of financial loss adduced before the enquiry officer. The finding that the respondent jeopardised the Bank's interest was based on no evidence. Penalty must have been only for minor misconduct. The SBI Rules were not applicable since the misconduct alleged related to the period of service in Bank of Cochin. The learned Judge observed that "punishment of removal" could not have been imposed as it was not one of the enumerated punishments under Bank of Cochin Rules. The writ petition was allowed, the impugned order was quashed. It was, however, observed that the Bank could impose punishment for minor misconduct as per rules of Bank of Cochin."
31. In State of Punjab v. Prem Swarup (2009) 1 SCC (L&S) 228 initiation of an enquiry after acquittal in criminal case the Apex Court ruled in relation to Punjab Police Rules, clearly that the acquittal of the applicant without any application of mind by the respondents as to be technical the disciplinary proceeding, which have been set aside by the trial court, as affirmed by the High Court has also been affirmed by the Apex Court.
32. In Bank of India v. Bhimsen Gochhayat, 2009 (13) SCALE 74 on acquittal by the criminal court the Apex Court ruled that an enquiry cannot be initiated if one is acquitted by a competent criminal court on the same set of charges. It is further ruled that when the charge is different and acquittal is on technical grounds the same is permissible.
33. In M. Paul Anthonys case (supra) insofar as impact of a judicial finding on a finding recorded on quasi-judicial proceedings the following observations are relevant to be highlighted:
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 Inquiry Officer, a copy of which has been placed before us, indicate that the charges framed against the appellant were sought to be proved by Police Officers and Panch witnesses, who had raided the house of the appellant and had effected recovery. They were the only witnesses examined by the Inquiry Officer and the Inquiry Officer, relying upon their statements, came to the conclusion that the charges were established against the appellant. The same witnesses were examined in the criminal case but the Court, on a consideration of the entire evidence, came to the conclusion that no search was conducted nor was any recovery made from the residence of the appellant. The whole case of the prosecution was thrown out and the appellant was acquitted. In this situation, therefore, where the appellant is acquitted by a judicial pronouncement with the finding that the 'raid and recovery' at the residence of the appellant were not proved, it would be unjust, unfair and rather oppressive to allow the findings recorded at the ex parte departmental proceedings, to stand.
35. Since the facts and the evidence in both the proceedings, namely, the departmental proceedings and the criminal case were the same without there being any iota of difference, the distinction, which is usually drawn as between the departmental proceedings and the criminal case on the basis of approach and burden of proof, would not be applicable to the instant case.
36. For the reasons stated above, the appeal is allowed, the impugned judgment passed by the Division Bench of the High Court is set aside and that of the learned single Judge, in so far as it purports to allow the writ petition, is upheld. The learned single Judge has also given liberty to the respondents to initiate fresh disciplinary proceedings. In the peculiar circumstances of the case, specially having regard to the fact that the appellant is undergoing this agony since, 1985 despite having been acquitted by the criminal court in 1987, we would not direct any fresh departmental inquiry to be instituted against him on the same set of facts. The appellant shall be reinstated forth- with on the post of Security Officer and shall also be paid entire arrears of salary, together with all allowances from the date of suspension till his reinstatement, within three months. The appellant would also be entitled to his cost which is quantified as Rs. 15,000/-.
34. In G.M. Tank (supra) while dealing with a situation where the petitioner was acquitted of charges, where all the decisions as cited by the learned counsel of respondents have been taken care of and following finding has been recorded:
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 account of the pendency of the criminal case, can be resumed and proceeded with so as to conclude them at an early date, so that if the employee is found not guilty his honour may be vindicated and in case he is found guilty, administration may get rid of him at the earliest.
23. In the instant case, the Superintendent of Police had raided the residential premises of the appellant and had recovered a mining sponge gold ball weighing 4.5 grams and 1276 grams of 'gold bearing sand'. It was on this basis that criminal case was launched against him. On the same set of facts, constituting the raid and recovery, departmental proceedings were initiated against the appellant as the "recovery" was treated to be a 'misconduct.' On the service of the charge sheet, the appellant raised an objection that the departmental proceedings may be stayed as the basis of these proceedings was the raid conducted at his residence on which basis a criminal case had already been launched against him. He requested that the decision of the criminal case may be awaited, but his request was turned down. The request made a second time for that purpose also met the same fate. When the appellant approached the High Court, liberty was given to the respondents to stay the departmental proceedings if they considered it appropriate but they were directed to dispose of the appellant's appeal against the order by which he was placed under suspension. The order of the High Court had no effect on the respondents and they decided to continue with the departmental proceedings which could not be attended by the appellant as he informed the Inquiry Officer that he was ill. His request for adjournment of the departmental proceedings on that ground was not acceded to and the proceedings continued ex-parte against him. He was ultimately found guilty of the charges and was dismissed from service.
24. Learned counsel for the appellant also contended that during the period of suspension the respondents had not paid him the Subsistence Allowance with the result that he could not undertake a journey from his home-town in Kerala to Kolar Gold Fields in Karnataka where the departmental proceedings were being held. This plea has not been accepted by the High Court on the ground that it was not raised before the Inquiry Officer and it was not pleaded before him that it was on account of non-payment of Subsistence Allowance that the appellant could not go to Kolar Gold Fields for participating in the disciplinary proceedings.
25. Before us, it is not disputed on behalf of the respondents nor was it disputed by them before the High Court, that subsistence allowance was not paid to the appellant while the proceedings against him were being conducted at the departmental level.
26. To place an employee under suspension is an unqualified right of the employer. This right is conceded to the employer in service jurisprudence everywhere. It has even received statutory recognition under service rules framed by various authorities, including Govt. of India and the State Governments. (See : for example, Rule 10 of Central Civil Services (Classification, Control and Appeal) Rules. Even under the General Clauses Act, this right is conceded to the employer by Section 16 which, inter alia, provides that power to appoint includes power to suspend or dismiss.
27. The order of suspension does not put an end to an employee's service and he continues to be a member of the service though he is not permitted to work and is paid only Subsistence Allowance which is less than his salary. (See : State of M.P. v. State of Maharashtra, (1977) 2 SCR 555 : (1977) 2 SCC 288 : AIR 1977 SC 1466).
28. Service Rules also usually provide for payment of salary at a reduced rate during the period of suspension. (See : Fundamental Rule 53). This constitutes the "Subsistence Allowance". If there is no provision in the Rules applicable to a particular class of service for payment of salary at a reduced rate, the employer would be liable to pay full salary even during the period of suspension.
29. Exercise of right to suspend an employee may be justified on the facts of a particular case. Instances, however, are not rare where officers have been found to be afflicted by "suspension syndrome" and the employees have been found to be placed under suspension just for nothing. It is their irritability rather than the employee's trivial lapse which has often resulted in suspension. Suspension notwithstanding, non-payment of Subsistence Allowance is an inhuman act which has an unpropitious effect on the life of an employee. When the employee is placed under suspension, he is demobilised and the salary is also paid to him at a reduced rate under the nick name of 'Subsistence Allowance', so that the employee may sustain himself. This Court in O. P. Gupta v. Union of India, (1987) 4 SCC 328 : (AIR 1987 SC 2257) made the following observations with regard to Subsistence Allowance (para 15 of AIR) :
"An order of a suspension of a Government servant does not put an end to his service under the Government. He continues to be a member of the service in spite of the order of suspension. The real effect of suspension as explained by this Court in Khem Chand v. Union of India (AIR 1958 SC 300) is that he continues to be a member of the Government service but is not permitted to work and further during the period of suspension he is paid only some allowance - generally called subsistence allowance - which is normally less than the salary instead of the pay and allowances he would have been entitled to if he had not been suspended. There is no doubt that an order of suspension, unless the departmental inquiry is concluded within a reasonable time, affects a Government servant injuriously. The very expression 'subsistence allowance' has an undeniable penal significance. The dictionary meaning of the word 'subsist' as given in Shorter Oxford English Dictionary, Vol. II at p. 2171 is "to remain alive as on food; to continue to exist". "Subsistence" means - means of supporting life, especially a minimum livelihood."
(Emphasis supplied)
30. If, therefore, even that amount is not paid, then the very object of paying the reduced salary to the employee during the period of suspension would be frustrated. The act of non-payment of Subsistence Allowance can be likened to slow-poisoning as the employee, if not permitted to sustain himself on account of non-payment of Subsistence Allowance, would gradually starve himself to death.
31. On joining Govt. service, a person does not mortgage or barter away his basic rights as a human being, including his fundamental rights, in favour of the Govt. The Govt, only because it has the power to appoint does not become the master of the body and soul of the employee. The Govt. by providing job opportunities to its citizens only fulfils its obligations under the Constitution including the Directive Principles of the State Policy. The employee, on taking up an employment only agrees to subject himself to the regulatory measures concerning his service. His association with the government or any other employer, like Instrumentalities of the Govt. or Statutory or Autonomous Corporations etc., is regulated by the terms of contract of service or Service Rules made by the Central or the State Govt. under the Proviso to Article 309 of the Constitution or other Statutory Rules including Certified Standing Orders. The Fundamental Rights, including the Right to Life under Article 21 of the Constitution or the basic human rights are not surrendered by the employee. The provision for payment of Subsistence Allowance made in the Service Rules only ensures non-violation of the right to life of the employee. That was the reason why this Court in State of Maharashtra v. Chanderbhan, (1983) 3 SCR 337 : (1983) 3 SCC 387 : AIR 1983 SC 803 struck down a Service Rule which provided for payment of a nominal amount of Rupee one as Subsistence Allowance to an employee placed under suspension. This decision was followed in Fakirbhai Fulabhai Solanki v. Presiding Officer, (1986) 3 SCC 131 : (1986) 2 SCR 1059 : AIR 1986 SC 1168 and it was held in that case that if an employee could not attend the departmental proceedings on account of financial stringencies caused by non-payment of Subsistence Allowance, and thereby could not undertake a journey away from his home to attend the departmental proceedings, the order of punishment, including the whole proceedings would stand vitiated. For this purpose, reliance was also placed on an earlier decision in Ghanshyam Dass Shrivastva v. State of Madhya Pradesh, (1973) 1 SCC 656 : AIR 1973 SC 1183.
35. In nutshell, the observations made by the Apex Court as ratio decidendi in M. Paul Anthony (supra) has been upheld even by a three-Judge Bench which holds the field. The respondents reliance on a decision of the High Court in Chikkanna case (supra) where the issue of acquittal and maintainability of the enquiry and departmental punishment has been repelled but without taking note of the decision of the Apex Court and moreover a Constitution Bench decision in R.P. Kapur (supra) for which the decision is per incuriam. A Full Bench decision in Jayaram Panda v. D.V. Raiyani, AIR 1989 (Orissa) 109, ruled that despite acquittal a departmental enquiry has clearly come in conflict with the decision in M. Paul Anthonys case (supra) and G.M. Tank (supra) which are subsequent, the decision is distinguishable and is overruled by the doctrine of precedent under Article 141 of the Constitution of India.
36. One of the legal issues raised by the learned senior counsel Shri G.D. Gupta is violation of Rule 8 (6) (a) of the A.I.S. Rules, which is in pari materia with Rule 14 (5) (a) of the CCS (CCA) Rules, 1965 whereby a provision for dropping the proceedings by the disciplinary authority of consideration of written statement of defence has been a mandatory compliance before an IO is appointed. The very purpose of Rule 8 (5) and (6) is to enable the government servant on written statement of defence to pursue and satisfy the disciplinary authority on a tentative memorandum of charge to drop the charges if no misconduct is made out. Accordingly, before the formal enquiry initiates with appointment of IO this opportunity of statement of defence under Rule 8 (5) is not to simply admit or deny the charge by the delinquent official but also to persuade the authority to drop the proceedings. In pari materia of the provision referred to above under Rule 20 (3) and (4) of the A.P. Civil Services (Classification, Control and Appeal) Rules, 1991 in Govt. of M.A. Majeeds case (supra) ruled on the basis of catena of decisions, including V. Rajamallaiah v. High Court of A.P. & Anr., 2001 (3) SLR 683 A.P. answered the reference by holding that consideration of written statement of defence is mandated before appointment of IO. Admittedly, in the instant case the charge memorandum was issued to the applicant in 2002 under Rule 8 of the A.I.S. Rules ibid where the applicant has been accorded 10 days time to file reply. However, before any IO could be appointed the disciplinary proceedings were challenged in OA-1064/2003 where an interim order passed on 9.5.2003 directed the respondents not to compel the applicant for filing reply to the chargesheet. This OA was disposed of on 30.09.2004 to keep the enquiry in abeyance till 31.12.2004 and thereafter liberty was accorded to take appropriate proceedings before the Tribunal for resumption of the proceedings. However, MA-709/2007 filed by the applicant in OA-1064/2003 an order passed on 9.5.2007 kept the enquiry further in abeyance till 15.09.2007 with liberty to the respondents to resume it from 16.09.2007. It is after this date that the DA had not resumed the proceedings from the stage of memorandum, i.e., apprising applicant of his right to file his written statement of defence or an opportunity of communication to file the same. Rather abruptly the enquiry was resumed after above six months by an order passed on 17.03.2008, whereby the President appointed the IO. It is pertinent to note that at this stage that till the order was passed no written statement of defence was sought from the applicant. However, immediately on such communication applicant preferred a representation on 25.3.2008 allowing time for submission of written statement of defence, which was kept pended till an order passed on 11.8.2009 rejected the claim on the ground that whereas an order passed by the Tribunal on 9.5.2007 directed resumption of the proceedings, applicant having failed to file his written statement of defence to the chargesheet till March, 2008 the DA appointed the IO. From the perusal of the order passed on 17.3.2008 except the fact of furnishing of documents to the applicant and enquiry to be kept in abeyance till 15.09.2007, there is no whisper as to the regular statement of defence and the related issue accordingly. This abrupt resumption of proceeding on 17.3.2008, bye-passing the stage of Rule 8 (5) of the A.I.S. Rules and more particularly in the circumstances that though in the MA the Tribunal has allowed resumption of proceedings from 16.09.2007 onwards, yet the earlier order directed respondents not to compel the applicant to file certain statement of defence. There is no communication to the applicant either of resumption of proceedings and the methodology to be adopted by the respondents thereupon, nor a specific communication to enable the applicant to file his written statement of defence. Now the plea taken by the learned counsel of respondents, which though does not find mention in the order passed on 17.3.2008, reasoning in the counter reply is filling up the gaps in the order and the justification that in 2002 and the time accorded in the memorandum having expired, applicant has abandoned his right to file written statement of defence, cannot be countenanced. On resumption of the proceedings, which is to be started from the stage it was closed and at the time of order passed in MA (supra) the stage what when memorandum was issued to the applicant for major penalty under Rule 8 of the A.I.S. Rules, as such it was incumbent upon the respondents to have informed applicant about his right to file written statement of defence. As this opportunity has been deprived of to applicant, his defence contentions could not be considered by the DA for dropping the charges and appointment of IO without dealing with the defence contentions of applicant is certainly violative of Rule 8 (5) of the Rules. Applicant has been certainly prejudiced on non-compliance of the substantive procedure. This procedure cannot be done away with and cast an obligation to be discharged, as ruled by the Full Bench in Mazeeds case (supra), which on all fours covers the present issue as well. This ground alone is sufficient to vitiate the proceedings.
37. Insofar as the second issue regarding initiation of the proceedings post-acquittal of applicant on identical charges based on common material is concerned, no doubt the law summed up on both sides as referred to supra, does not preclude or create a blanket bar for holding of a disciplinary proceedings post-acquittal. However, the exception being carved out by the Constitution Bench in R.P. Kapoor (supra) is when the acquittal is honorable and on merits not only the disciplinary proceedings is barred but also no penalty could be inflicted. The Constitution Bench (supra) though has been referred to in the Full Bench decision of the Orissa High Court in Jairam Pandas case (supra) where one of the Judges interpreted this Section 403 of the Cr. PC differentiated between criminal and disciplinary proceedings and on public policy on administrative exigency defined honorable acquittal and as a passing reference quoted as a general observation, the observations made by the Constitution Bench in R.P. Kapurs case (supra). The dicta ruled is that even after such acquittal discretion is vested with the authorities and depending upon the facts and circumstances of the case acquittal of a delinquent in a departmental enquiry should not be open to scrutiny of court. Being a court of first instance, we are bound by the dicta on doctrine of precedent under Article 141 of the Constitution of India. Moreover, even obiter dicta of Apex Court are binding on us, which overrides any finding recorded at the lower level. However, in M. Paul Anthonys case (supra) where the facts were along with a criminal case a chargesheet was issued and before conclusion of the trial penalty of dismissal was inflicted upon the petitioner therein. In such circumstances relying upon various decisions on the question of acquittal and keeping in light the peculiar facts and circumstances the prosecution case has been discarded on the ground that charges framed in the enquiry were sought to be proved by official witnesses, which had come to be examined in the criminal case. The same evidence when scrutinized on the principle of strict rules of evidence and a judicial pronouncement acquits the concerned with a specific finding of no proof of guilt it was held that it would not be proper to allow the finding recorded in the disciplinary proceedings to stand. The exception carved out was that where the departmental proceedings and criminal proceedings are founded on the same material without any iota of difference and distinction on charges, evidence etc. the principle of preponderance of probability in departmental proceedings would have no applicability to initiate, resume or conclude the disciplinary proceedings with departmental punishment.
38. In a subsequent decision in G.M. Tank (supra) after consideration of the decisions of the Apex Court, including two-Judge, three-Judge and five-Judge the Apex Court was of the view in a prevention of corruption act by quoting extensively the decision in M. Paul Anthony (supra) and R.P. Kapoor (supra) that when criminal and departmental proceedings are based on same set of facts and the witnesses are common, when these witnesses are examined in a criminal case where the conclusion of the trial court has not proved on the basis of the same evidence the guilt of the accused beyond any reasonable doubt, on acquittal when such pronouncement made after a regular hotly contested trial the finding recorded on quasi-judicial side in a disciplinary proceedings would be overridden. It is in this backdrop the ratio decidendi arrived at is that when there is an honorable acquittal of the employee the same has to be taken note of and would obviate holding of an enquiry as ruled in Sulekh Chand (supra) as well as any penalty in the disciplinary proceedings.
39. In P. Kata Raos case (supra) also the aforesaid dicta in M. Paul Anthonys case (supra) has been found to remain unshaken.
40. In the above view of the matter, reading of ratio decidendi and an emerging legal justification, which cannot be doubted in the circumstances is that the only exception when a disciplinary proceeding cannot be initiated after acquittal is that when one is acquitted of the criminal charge honorably on merits in a criminal trial the other condition precedent is that the proceedings in criminal trial as well as in departmental proceeding should be avoided on the same set of facts with common evidence etc. In such view of the matter, the distinguishing feature of both the proceedings based on different principles and the degree of proof would have no application. However, a technical acquittal would not debar holding of enquiry post acquittal of a government servant despite the proceedings are founded on same set of facts and evidence.
41. Applying the above ratio to the facts and circumstances of the present case learned senior counsel Shri G.D. Gupta has extensively quoted the findings recorded by the trial court on all the 9 issues in the judgment as well as para 28 contended that if it is recorded that prosecution has failed to prove beyond doubt that N.K. Jain, abused his position as a public servant or adopted corrupt or illegal means to obtain for himself or, for any other person, any valuable thing or pecuniary advantage. Therefore, all the points for determination are answered in favour of accused N.K. Jain and against the prosecution shall amount to an honorable acquittal on merits.
42. The aforesaid finding has been read out by the learned counsel of respondents in isolation in para 30 where the following observations have been made:
As an upshot of the discussion foregoing, accused N.K. Jain is acquitted of the charges framed against him. The contention put-forth that failure to prove beyond doubt the guilt of the applicant by the prosecution would amount to giving benefit of doubt is a misnomer and misconceived in the circumstances.
43. The very principle of criminal jurisprudence is that till one is held guilty is to be deemed innocent and the guilt of one accused shall have to be established beyond reasonable doubt. This is on the principle that let 100 guilty may be let off but one innocent may not be convicted is a public policy devised to ensure that in the matter of curtailment of personal liberty on conviction and imprisonment if the allegations are not proved on circumstances forming a chain or beyond reasonable doubt one cannot be held guilty.
44. An acquittal where the judgment indicates that the accused has been acquitted, as none of the ingredients of the offences raised against the accused having been established on proof by way of evidence by the prosecution, one has to be deemed as acquitted on merits in law.
45. Learned senior counsel of applicant has drawn our attention to his brief reply and synopsis filed on 26.3.2009 where all the 9 allegations constituting ingredients of the offences alleged against applicant, particular finding in the judgment has been reproduced, which indicates that finding no evidence against the applicant and the prosecution having miserably failed to establish the charge against the applicant his consequent acquittal cannot be construed to be on a technicality or on benefit of doubt. Moreover, we do not find the very words benefit of doubt in the judgment of the trial court. We cannot assume such benefit of doubt in isolation of recording of finding by the trial court on ingredients of the offence of which a cumulative effect is that applicant as an accused has been acquitted honorably from the charges on merit.
46. In view of the honorable acquittal of the applicant, dicta of the Apex Court as an exception debars the respondents from proceeding departmentally against the applicant on the identical charges, which is an admitted position.
47. We also find that after the acquittal of the applicant a request has been made to drop the proceedings. However, neither there has been a consideration on examination of the judgment by the competent authority nor reasons have been recorded in the order dated 11.08.2009. Rather, we find that a very callous approach has been adopted by the respondents whereby merely because applicant has agitated the matter in this OA, respondents have gone to the extent of recording that he has forfeited his right to pursue the department for a decision to drop the departmental proceedings. To come to the Court for legal grievance is a constitutional right guaranteed to a government servant as a citizen of this country under Articles 19 and 21 of the Constitution of India. This cannot be blocked at the whims and fancies of the Government. When a duty is cast as an obligation on the respondents in case of acquittal of a government servant to examine the judgment and thereafter to take a decision regarding disciplinary proceedings, having failed to do so, even the dicta laid down in the decisions cited by the learned counsel of respondents stood violated, which is against law.
48. Resultantly, for the foregoing reasons, we are of the considered view that the disciplinary proceedings initiated against the applicant on 5.9.2002 and its resumption and continuance, including the impugned orders, are not sustainable in law. Accordingly, OA is allowed. Impugned orders are set aside. As a result thereof, respondents shall now decide the period of suspension of applicant in accordance with rules, instructions and law on the subject. In that case, applicant shall also be entitled to all consequential benefits, as admissible in law to him, which shall be bestowed upon him within a period of three months from the date of receipt of a copy of this order. However, it goes without saying that on outcome of appeal filed by the prosecution against acquittal of the applicant, law shall take its own course. No costs.
(Dr. Veena Chhotray) (Shanker Raju) Member (A) Member (J) San.