Madras High Court
The State Of Tamil Nadu, Rep. By The ... vs H.A. Munaff, Anna Nagar West, Chennai ... on 26 February, 2002
Equivalent citations: (2002)IIILLJ66MAD, (2002)2MLJ282
Author: F.M. Ibrahim Kalifulla
Bench: R. Jayasimha Babu, F.M. Ibrahim Kalifulla
ORDER F.M. Ibrahim Kalifulla, J.
1. In these three Writ Petitions, the State of Tamil Nadu is the petitioner. First respondent in all the three Writ Petitions is the contesting respondent.
2. The prayer in W.P.No.100 of 2001 is for issuance of Writ of Certiorari, to call for the records pertaining to the order of the Tamil Nadu Administrative Tribunal, herein after referred to as 'Tribunal', dated 31-8-2000 made in T.A.No.55 of 1999 and to quash the same.
3. The prayer in W.P.No.5579 of 2001 is for issuance of Writ of Certiorari, to call for the records pertaining to the order dated 27-2-2001 of the Tribunal made in Cont.Appln.No.29 of 2001 in O.A.No.1716 of 1999 and to quash the same.
4. The prayer in W.P.No.19749 of 2001 is also for issuance of Writ of Certiorari, to call for the records pertaining to the order dated 12-12-2000 of the Tribunal made in O.A.No.8845 of 2000 and to quash the same.
5. For the purpose of proper understanding of the nature of the controversy involved in all the three Writ Petitions, the brief facts of the case can be stated.
6. The first respondent herein, while he was working as Regional Transport Officer at Nagapattinam was arrested pursuant to a trap case by Directorate of Vigilance and Anti Corruption for alleged receipt of bribe of Rs.1000/- on 6-7-1989. He was placed under suspension under Rule 17(e). A criminal case was registered in S.C.No.22 of 1990 on the file of the Chief Judicial Magistrate, Thanjavur, who convicted the first respondent by his Judgment dated 28-9-1992 by sentencing him to undergo two years rigorous imprisonment, apart from payment of a fine of Rs.1000/- and in default of payment of fine, to undergo a further period of six months rigorous imprisonment. The first respondent filed a criminal appeal in C.A.No.633 of 1992 in this Court, which came to be allowed on 20-11-1997 whereby he came to be acquitted.
7. In the mean while in respect of certain other misconduct alleged to have been committed by the first respondent, he was issued with a different charge sheet dated 20-12-1993 under Rule 17(b). After the Judgment was rendered in C.A.No.633 of 1992 on 20-11-1997, the order of suspension dated 22-7-1989 issued to the first respondent was revoked by order dated 16-10-1998. Subsequently, by a charge sheet dated 30-11-1998 framed under Rule 17(b) of the Rules, charges were framed against the first respondent in regard to the demand and receipt of the bribe made on 6-7-1989.
8. In the above circumstances, the first respondent challenged the charge sheet dated 20-12-1993 in O.A.No.495 of 1994 which was dismissed earlier by the Tribunal on 6-8-1997. That order of the Tribunal was challenged by the first respondent in W.P.No.19500 of 1997 and the same was allowed by this Court on 18-6-1999 and the O.A. was remanded back to the Tribunal. Thereafter, the Tribunal allowed O.A.No.495 of 1994 on 13-12-199 and quashed the charge memo dated 20-12-1993. The said order of the Tribunal dated 13-12-1999 was challenged by the State in W.P.No.11177 of 2000. By order dated 4-8-2000, the order of the Tribunal dated 13-12-1999 was set aside and thereby the charge memo dated 20-12-1993 was restored. In the meanwhile, the first respondent filed O.A.No.1716 of 1999 seeking for a direction to treat the period of suspension between 22-7-1989 to 2-11-1998 as one of duty and for payment of benefits. The said O.A.No.1716 of 1999 was allowed by the Tribunal by its order dated 1-4-1999. The said order of the Tribunal dated 1-4-1999 was challenged by the petitioner in W.P.No.3190 of 2000 which was allowed by the Division Bench of this Court on 4-8-2000 by a common order passed in W.P.Nos.3190 of 2000 as well as W.P.No.11177 of 2000. The said order dated 4-8-2000 in so far as it related to W.P.No.3190 of 2000 is of same significance, inasmuch as, by the said order, the Division Bench has held as under in para 8: "8.We have heard the learned counsel for both sides and perused the materials on record. So far as the legal position is concerned, criminal case as well as disciplinary proceedings can be initiated simultaneously. Once the incumbent is acquitted on merits in a criminal case, it will not be appropriate to agitate the enquiry again on the same charge and on the same evidence and to this extent, the learned counsel has not disputed the legal position and the case law cited above and, therefore, it is not necessary for us to deal with the case law. But the charge memo has already been issued against him by the Government on 30-11-1998 is connection with a trap case and the matter was challenged and it is pending before the Tribunal in T.A.No.55 of 1999 in which he obtained stay of further proceedings. In our view, taking into consideration the facts of the given case, the argument of the learned Government Advocate has got some substance and till the T.A. is decided by the Tribunal, the first respondent is not entitled to get the monetary benefits and, therefore without going into merits of the case, we dispose of W.P.No.3190 of 2000 with the direction that the Tribunal shall consider and dispose of T.A.No.55 of 1999 in accordance with law as early as possible as the first respondent is going to retire on 31-08-2000. W.P.No.3190 of 2000 is disposed of accordingly. Consequently W.M.P. No.4894 of 2001 is closed. No costs.
9. Be that as it may, the first respondent reached the age of superannuation on 31-8-2000. As the charge sheet issued against the first respondent on 30-11-1998 was pending consideration, by G.O.2(D).No.275 Home Department, dated 31-8-2000, the first respondent was suspended from service in view of the pending enquiries against him in respect of the charge sheet dated 20-12-1993 and 30-11-1998. By G.O.2(D) No.276, dated 31-8-2000, the first respondent was not permitted to retire from service. By order dated 31-8-2000, in T.A.No.55 of 1999, the Tribunal quashed the charge memo dated 30-11-1998 inter alia on the grounds that the action of the State in issuing the charge sheet after the period of more than eleven years and also in the light of acquittal of the first respondent by this Court in Crl.Appeal No.633 of 1992 dated 20-11-1997 cannot be sustained.
10. While matters stood thus, the first respondent filed O.A.No.8845 of 2000 before the Tribunal for a declaration that F.R.56(1)(c) is unconstitutional and void and for quashing G.O.2(D) No.276 dated 31-8-2000. The said O.A. was filed on 24-11-2000. Similarly, he also filed O.A.No.9008 of 2000 for a declaration that Rule 17(e) (1) and (6) of D & A Rules is unconstitutional, and for quashing G.O.(2D) No.275 dated 31-8-2000. The said O.A. was filed on 6-11-2000. By an interim order dated 12-12-2000, the Tribunal issued a direction to the State Government to permit the first respondent to retire without prejudice to the disciplinary proceedings subject however to the result of O.A.No.8845 of 2000. By yet another order dated 27-2-2001 in C.A.No.29 of 2000 & M.A.No.9197 of 2000 in O.A.No.1716 of 1999, the Tribunal directed the State Government to issue a G.O. treating the period of suspension from 22-7-1989 to 2-11-1998 as one of duty for all purposes and effect payment due to him towards his outstanding pay and allowance for the above mentioned period of over nine years irrespective of the order of interim stay granted in W.M.P.No.130 of 2001 in W.P.No.100 of 2001 dated 5-1-2001 staying the operation of the order of the Tribunal dated 31-8-2000 made in T.A.No.55 of 1999. The interim stay granted on 5-1-2001 was subsequently extended by order dated 15-3-2001 and was thereafter made absolute on 11-4-2001. The petitioners have therefore come forward with W.P.Nos.5579 of 2001 and 19749 of 2001, to quash the order of the Tribunal dated 27-2-2001 and the order of the Tribunal dated 12-12-2000.
11. Having considered the circumstances which necessitated the petitioners to come forward with the above Writ Petitions, we are of the view that the disposal of W.P.Nos.5579 of 2001 and W.P.No.19749 of 2001 is dependent upon the disposal of W.P.No.100 of 2001. We, therefore, in the first instance, deal with the correctness of the order impugned in W.P.No.100 of 2001.
12. The order of the Tribunal dated 31-8-2000 in T.A.No.55 of 1999 is the one by which, the charge sheet issued to the first respondent dated 30-11-1998 has been set aside. While setting aside the charge sheet dated 30-11-1998, the Tribunal also directed that the first respondent should be given a notional promotion from February 1997 by adding the name of the petitioner above one Thiru K.Balashanmugham in the panel of the year 1996-97 and he should be deemed to have been given promotion on a date prior to the date of promotion given to said K.Balashanmugham. It was however held that the first respondent would not be entitled for any monetary benefits and the notional promotion should be taken into account only for the purpose of fixing the pay and allowances payable to the first respondent on his retirement for the purpose of pension. It was further directed that the pay of the first respondent should be notionally fixed in the scale of pay payable to the Deputy Transport Commissioner and the pension should be fixed based on such calculation.
13. A perusal of the order of the Tribunal dated 31-8-2000 made in T.A.No.55 of 1999 disclose that it was of the view that when the Criminal trial in respect of very same allegation of receipt of bribe which took place on 6-7-1989 ended in acquittal, after a lapse of eleven years, it was not fair on the part of the petitioners to proceed afresh. While assailing the above said order of the Tribunal, the learned Addl.Advocate General appearing on behalf of the petitioners, after referring to the Judgment of this Court dated 20-11-1997 in C.A.No.633 of 1992, particularly with reference to paras 20 and 23 of the Judgment, submitted that in view of the expressions used therein, it cannot be concluded that the first respondent could be completely absolved of the misconduct now alleged against him in the charge sheet dated 30-11-1998, especially in the light of the various dictums of the Honourable Supreme Court in holding that the departmental proceedings cannot be equated to that of criminal trial where for conviction, the requirement is proof to the hilt while for imposing punishment in the departmental proceedings, it would be sufficient if preponderance of probability to the alleged misconduct is shown. In support of his submissions, the learned Addl.Advocate General relied upon ; ; ; ; ; and 1991(1) SCLR 355.
14. As against the above submissions, Mr.K.Srinivasaraghavan, learned counsel appearing for the first respondent would contend that by virtue of Rule 5(b)(1) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules 1955, when the petitioners chose to proceed against the first respondent by way of prosecution, it is no longer open to them now to revert back to the disciplinary proceedings, that too, after the conclusion of the said criminal proceedings which ended in acquittal. The learned counsel would contend that the present move against the first respondent by way of disciplinary action by issuing a charge sheet on 30-11-1998 in respect of an incident which took place eleven years earlier, is nothing but an act of vindictiveness, deliberately purported against the first respondent on the verge of his retirement. The learned counsel, would therefore submit that the Tribunal was perfectly justified in setting aside the charge sheet dated 30-11-1998 and in granting the relief in favour of the first respondent. The learned counsel relied upon 1999 SCC (L&S)810 and 1999(2) Scale 363 in support of his submissions.
15. As the point raised in these Writ Petitions, having been dealt with by the Honourable Supreme Court in extenso, in the various judgments cited at the Bar, we feel it necessary to refer to the same to appreciate the point in issue in the proper perspective.
16. In 1991(2) Supp (2) SCC 143 (FOOD CORPORATION OF INDIA versus GEORGE VARGHESE AND ANOTHER), a two Judge Bench of the Honourable Supreme Court, was considering the case of an employee, who was proceeded by way of criminal proceedings and who was dismissed from service based on the conviction and sentence and who was ultimately acquitted by the High Court after which, the dismissal order was set aside and the employee was reinstated in service, who was immediately placed under suspension after such reinstatement, thereafter he was also served with a charge sheet in order to proceed against him by way of a departmental enquiry. The said action of the Food Corporation of India was challenged by way of Writ Petition, which came to be allowed by a learned Single Judge and was also confirmed by the Division Bench. While dealing with that situation, the Honourable Supreme Court was pleased to hold as under: "....We do not think that the Division Bench was justified in refusing to interfere only on the ground of delay because the delay was not occasioned on account of inaction on the part of the appellant. The appellant acted fairly by staying its hands as soon as the prosecution was initiated. It did not proceed with the departmental enquiry lest it may be said that it was trying to overreach the judicial proceedings. If it had insisted on proceeding with the departmental inquiry, the respondent would have been constrained to file his reply which could have been used against him in the criminal proceedings. That may have been banded as unfair. After the conviction the order of dismissal was passed but immediately on the respondents being acquitted the appellant fairly set aside that order and reinstated the respondent and initiated departmental proceedings by suspending him and serving him with the charge sheet and the statement of allegations, etc. It cannot, therefore, be said that the appellant was guilty of delay. It is true that between setting aside the order of dismissal and the service of the charge sheet, there was a time gap of about eight months but we do not think that that can prove fatal." (Underlining is ours)
17. In (UNION OF INDIA AND ANOTHER versus BIHARILAL SIDHANA), the Honourable Supreme Court was pleased to hold as under in para 5: "5. It is true that the respondent was acquitted by the criminal court but acquittal does not automatically give him the right to be reinstated into the service. It would still be open to the competent authority to take decision whether the delinquent government servant can be taken into service of disciplinary action should be taken under the Central Civil Services (Classification, Control & Appeal) Rules or under the Temporary Service Rules. Admittedly, the respondent had been working as a temporary government servant before he was kept under suspension. The termination order indicated the factum that he, by then, was under suspension. It is only a way of describing him as being under suspension when the order came to be passed but that does not constitute any stigma. Mere acquittal of government employee does not automatically entitle the government servant to reinstatement. As stated earlier, it would be open to the appropriate competent authority to take a decision whether the enquiry into the conduct is required to be done before directing reinstatement or appropriate action should be taken as per law, if otherwise, available. Since the respondent is only a temporary government servant, the power being available under Rule 5(1) of the Rules, it is always open to the competent authority to invoke the said power and terminate the services of the employee instead of conducting the enquiry or to continue in service a government servant accused of defalcation of public money. Reinstatment would be a charter for him to indulge with impunity in misappropriation of public money." (Underlining is ours)
18. In (STATE OF TAMIL NADU versus M.A.WAHEED KHAN), the Honourable Supreme Court was pleased to state the law as under in para 4: "4. We have heard learned counsel for the parties. We are of the view that the Tribunal fell into patent error. The criminal charge and the charge in the departmental enquiry were entirely different. The appellate Court in the criminal case came to the conclusion that since the two ladies had not supported the prosecution case, the charges against the appellant were not proved. In the judgment, the criminal Courts have, however, accepted that one of the ladies, namely Rani, visited the police station at midnight allegedly to find out as to what had happened to the other lady (Rani's sister-in-law), who was already in the police station. When the two ladies were admittedly at the police station at night, no fault can be found with the charges, as framed in the departmental enquiry. The Tribunal further fell into patent error in holding that it was a case of "no evidence". It is a settled proposition of law that strict rules of evidence are not applicable to departmental enquiries. Before the Enquiry Officer, the statements of both the ladies were recorded. He appreciated the evidence in the light of their earlier statements made in the preliminary enquiry. In this view of the matter, it is not correct to say that there was no evidence before the Enquiry Officer."
19. In (STATE OF RAJASTHAN versus B.K.MEENA & ANOTHER), while considering a question in relation to grant of stay of disciplinary proceedings awaiting the conclusion of criminal trial, the Honourable Supreme Court was pleased to hold as under in para 17: "17.There is yet another reason. The approach and the objective in the criminal proceedings and the disciplinary proceedings is altogether distinct and different. In the disciplinary proceedings, the question is whether the respondent is guilty of such conduct as would merit his removal from service or a lesser punishment, as the case may be, whereas in the criminal proceedings the question is whether the offences registered against him under the Prevention of Corruption Act (and the Indian Penal Code, if any) are established and, if established, what sentence should be imposed upon him. The standard of proof, the mode of enquiry and the rules governing the enquiry and trial in both the cases are entirely distinct and different. Staying of disciplinary proceedings pending criminal proceedings, to repeat, should not be a matter of course but a considered decision. Even if stayed at one stage, the decision may require reconsideration if the criminal case gets unduly delayed."(Underlining is ours)
20. In 1999 SCC (L & S) 810 = 1999(2) Scale 363 (CAPT.M.PAUL ANTHONY versus BHARAT GOLD MINES LTD. & ANOTHER), after referring to its various earlier decisions, the Honourable Supreme Court has held as under in para 22.
"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, the administration may get rid of him at the earliest."
Again in paras 34 and 35, it was held that the witnesses who were examined in a criminal case were examined in the departmental enquiry and since the case of the prosecution was thrown out and the delinquent was acquitted by a judiciary pronouncement with a finding that "raid and recovery" were not proved, it would be unjust, unfair and oppressive to allow the findings recorded at the ex parte departmental proceedings to stand. It was further held that since the facts and the evidence in both the proceedings 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 that case.
21. In JT 2000(10) SC 195 (K.SREEDHARAN versus CHIEF SECURITY COMMISSIONER & OTEHRS), the Honourable Supreme Court was pleased to hold as under: "...His contention in the review proceedings centres round the departmental enquiry. An attempt is made to reargue the matter and submit that because he was acquitted by the criminal court, he could not be proceeded against departmentally. It is now well settled that if acquittal by a criminal court is not a clean one, but it is only by giving benefit of doubt, departmental enquiries on the same allegation against him, cannot be said to be barred. His acquittal was on the ground that the charge was not proved beyond reasonable doubt. Hence, even on merits the review petition is liable to be dismissed and, therefore, the review petition is dismissed both on the ground of not satisfactorily explained gross delay as well as on merits." (Underlining is ours)
22. In (CORPORATION OF CITY OF NAGPUR, CIVIL LINES, NAGPUR & ANOTHER versus RAMACHANDRA G.MODAK & OTHERS), a three Judges Bench of the Honourable Supreme Court was pleased to hold as under in para 6: "6. The other question that remains is if the respondents are acquitted in the criminal case whether or not the departmental inquiry pending against the respondents would have to continue. This is matter which is to be decided by the department after considering the nature of the findings given by the criminal Court. Normally where the accused is acquitted honourably and completely exonerated of the charges it would not be expedient to continue a departmental inquiry on the very same charges or grounds or evidence, but the fact remains, however, that merely because the accused is acquitted, the power of the authority concerned to continue the departmental inquiry is not taken away nor is its direction (discretion) in any way fettered. However, as quite some time has elapsed since the departmental inquiry had started the authority concerned will take into consideration this factor in coming to the conclusion if it is really worthwhile to continue the departmental inquiry in the event of the acquittal of the respondents. If, however, the authority feels that there is sufficient evidence and good grounds to proceed with the inquiry, it can certainly do so. In case the respondents are acquitted, we direct that the order of suspension shall be revoked and the respondents will be reinstated and allowed full salary thereafter even though the authority chooses to proceed with the inquiry. Mr.Sanghi states that if it is decided to continue the inquiry, as only arguments have to be heard and orders to be passed, he will see that the inquiry is concluded within two months from the date of the decision of the criminal court. If the respondents are convicted, then the legal consequences under the rules will automatically follow. (Underling is ours)
23. In 1966 M.L.J. 306 (S.KRISHNAMURTI versus THE CHIEF ENGINEER through Personal Officer (Staff) SOUTHERN RAILWAY, PARK TOWN, MADRAS-3 & ANOTHER), a Division Bench of this Court was pleased to hold as under:
"Upon the first two points, which are interlinked, the learned Judge (Srinivasan, J.) referred to the dicta in Jerome de Silva V. Regional Transport Authority. There are certain pertinent observations in that Bench decision, on the broad principle, and the following remark might be extracted here: "It would indeed be a strange predicament, when, in respect of the same offence, there should be punishment by the Tribunal on the footing that he was guilty of the offence, and that he should be honourably acquitted by another Tribunal of the very same offence. As, primarily, the criminal Court of the land are entrusted with enquiry into offences, it is desirable that the findings and orders of the criminal Courts should be treated as conclusive in proceedings before quasi-judicial tribunals."
With respect, we agree with this enunciation of the principle. But, as the learned Judge rightly emphasises, it has no relevance at all to the present context of facts. In the present case, the acquittal was not based upon any finding that the appellant did not receive illegal gratification. On the contrary, there is a specific finding by the learned Judge (Somasundaram, J.) though it might be obiter in character, to the effect that the bribe was given to, and taken by, the appellant. The acquittal was on a technical ground relating to the criminal processual law. We are unable to see how, under those circumstances, the appellant could claim any exemption from subsequent disciplinary proceedings. Rajagopalan, J., observed in Karuppa Odayar V. State of Madras (1956(2) MLJ 15, that a departmental enquiry was not precluded, merely because there was an offence cognizable under the Indian Penal Code, which would be tried, or might have been tried. Another case definitely against the view urged for the appellant is State of Orissa V.Sailabehari . This decision proceeded to the length of holding that, where a criminal Court did not record an honourable acquittal, but gave the accused the benefit of doubt, and observed that there was strong suspicion, this did not preclude further departmental enquiry in respect of the same subject-matter.
Under those circumstances, it appears to be very clear to us that the appellant could have been proceeded with, in disciplinary jurisdiction, upon the present facts, notwithstanding the ultimate acquittal on the criminal charge.(Underlining is ours)
24. Reliance was also placed upon the Judgment rendered by one of us (M.BALAKRISHNAN & 7 OTHERS versus THE CORPORATION OF MADURAI & ANOTHER), wherein, it was held that- "where the respondent Corporation who had been issued with instructions by the Government to take simultaneous action namely, to proceed with the criminal proceedings as well as departmental enquiry, there was no necessity at all for the Corporation to wait for commencement or conclusions of the criminal proceedings and therefore the departmental proceedings initiated after 1 1/2 years of the conclusion of the criminal proceedings was not permissible in law."
25. In 1995 SCC (L & S) 196 (SULEKH CHAND AND SALEK CHAND versus COMMISSIONER OF POLICE AND OTHERS), the Honourable Supreme Court was pleased to hold as under: "...It is not in dispute that the proposed departmental enquiry also is related to the selfsame offence under Section 5(2) of the Prevention of Corruption Act. The Judgment acquitting the appellant of the charge under Section 5(2) became final and it clearly indicates that it was on merits. Therefore, once the acquittal was on merits the necessary consequence would be that the delinquent is entitled to reinstatement as if there is no blot on his service and the need for the departmental enquiry is obviated. It is settled law that though the delinquent official may get an acquittal on technical grounds, the authorities are entitled to conduct departmental enquiry on the selfsame allegations and take appropriate disciplinary action. But, here, as stated earlier, the acquittal was on merits."
26. On an analysis of the various decisions referred to above, the following principles emerge.
(a) Normally where the accused is acquitted honourably and completely exonerated of the charges, it would not be expedient to continue a departmental inquiry on the very same charges or grounds or evidence;
(b) Departmental proceedings and proceedings in a criminal case can proceed simultaneously as there is no bar in their being conducted simultaneously, though separately;
(c) Whenever criminal proceedings are initiated based on a delinquency committed by an employee, it will be in order if the departmental proceedings are deferred awaiting the conclusion of the criminal proceedings;
(d) If the criminal case does not proceed expeditiously or its disposal is being unduly delayed, the departmental proceedings can be resumed and proceeded with so as to conclude them at an early date;
(e) Mere acquittal of a government employee in a criminal proceedings will not wipe of his delinquency and it would be still open for the appropriate competent authority to proceed with the departmental inquiry as per law; and
(f) The standard of proof, mode of inquiry and the rules governing the departmental inquiry and trial in criminal proceedings are distinct and different.
27. It is therefore clear that it is not axiomatic that in all the cases where the criminal proceedings based on the very same set of facts ended in acquittal, the departmental action should not be proceeded with. It is by how settled that if the acquittal in the criminal proceedings is not a honourable one, it is always open to proceed with the departmental proceedings. It is also now made clear that having regard to the fact that the delinquent may apprehend prejudice in the event of the criminal proceedings and the departmental enquiry being simultaneously proceeded with, the departmental enquiry can be commenced after the final conclusion of the criminal proceedings. A honourable acquittal would only mean an acquittal which is free from any doubt. Therefore merely because a person came to be acquitted on the ground that the charge was not proved beyond all reasonable doubts, it cannot be held that the person was honourably acquitted so as to hold that he was given a clean chit of the charges levelled against him. Viewed in that respect when the case on hand is analysed, we find that in the judgment rendered in C.A.No.633 of 1992, the learned Judge, on the basis of the evidence placed in the criminal proceedings, was of the view that one of the witnesses was not examined, that the versions spoken to by some witnesses did not prove beyond all reasonable doubts the charge of receipt of bribe. In fact, the learned Judge was of the view that the findings of the trial Court was not satisfactory enough to punish the accused.
28. In this context, it would be relevant to refer to the judgment of the Honourable Supreme Court reported in 1982 (1) LLJ 46. Paragraph 4 of the said Judgment is to the following effect: "It is well settled that in a domestic enquiry the strict and sophisticated rules of evidence under the Indian Evidence Act may not apply. All materials which are logically probative for a prudent mind are permissible. There is no allergy to heresay evidence provided it has reasonable nexus and creditability. It is true that departmental authorities and administrative Tribunals must be careful in evaluating such material and should not glibly swallow what is strictly speaking not relevant under the Indian Evidence Act. For this proposition it is not necessary to cite decisions nor text books, although we have been taken through case law and other authorities by counsel on both sides. The essence of a judicial approach is objectivity, exclusion of extraneous materials or considerations and observance of rules of natural justice. Of course, fairplay is basis and if perversity or arbitrariness, bias or surrender of independence of judgment vitiate the conclusions reached, such finding, even though of a domestic Tribunal, cannot be held good. However, the Courts below misdirected themselves, perhaps, in insisting that passengers who had come in and gone out should be chased and brought before the Tribunal before the valid finding could be recorded. The "residium" rule to which counsel for the respondent referred, based upon certain passages from the American Jurisprudence does not go to that extent nor does the passage from the Halsbury insist on such rigid requirement. The simple point is, was there some evidence or was there no evidence-not in the sense of the technical rules governing regular court proceedings but in a fair comonsense way as men of understanding and worldly wisdom will accept. Viewed in this way, sufficiency of evidence in proof of the finding by a domestic Tribunal is beyond scrutiny. Absence of any evidence in support of a finding is certainly available for the Court to look into because it amounts to an error of law apparent on the record. We find, in this case, that the evidence of Chamanlal, Inspector of the Flying Squad, is some evidence which has relevance to the charge levelled against the respondent. Therefore, we are unable to hold that the order is invalid on that ground."
29. Applying the principles as set out above to the facts of this case, it will have to be held that the departmental proceedings initiated by the issuance of the charge sheet dated 30-11-1998 should be allowed to be proceeded with in order to find out whether the misconduct levelled against the first respondent can be made out. Therefore to quash the said proceedings, namely, the charge sheet dated 30-11-1998 at the threshold, as has been done by the Tribunal in its order dated 31-8-2000 in T.A.No.55 of 1999 would be highly improper and cannot be allowed to remain.
30. As far as the delay of eleven years pointed out by the Tribunal, it will have to be stated that it cannot be construed as delay at all in the facts and circumstances of the case. The criminal proceedings launched against the first respondent subsequent to the trap laid on 6-7-1989 came to be concluded only after the disposal of the Criminal Appeal in C.A.No.633 of 1992 on 20-11-1997. If at all anything can be attributed by way of delay, it could only be between 20-11-1997 and 30-11-1998, i.e. hardly a year. The petitioners wanted to take a decision to proceed against the first respondent subsequent to the acquittal made by the High Court though the petitioners could have acted swiftly in issuing the charge sheet, it cannot be held that the said decision should be faulted on the ground of delay. Subsequently since the issuance of the charge sheet dated 30-11-1998 came to be immediately challenged by the first respondent initially by filing a Writ Petition which came to be subsequently transferred to the Tribunal, the petitioners were not in a position to proceed further with the departmental action. Placed in such a situation, since the date of superannuation of the first respondent, namely 31-8-2000 had reached, it became incumbent upon the petitioners to issue the Government Order in G.O.2(D) Nos.275 and 276 dated 31-8-2000 to place the first respondent under suspension and also in not allowing him to retire from the service till the conclusion of the departmental proceedings.
31. In this context, the earlier order of the Division Bench of this Court dated 4-8-2000 made in W.P.3190 of 2000 assumes significance. We have already extracted para 8 of the earlier order in our judgment which makes it clear that the first respondent would not be entitled to get the monetary benefits until the issue involved in T.A.No.55 of 1999 is decided by the Tribunal, namely, about the validity of the charge sheet dated 30-11-1998. Inasmuch as, we have now held that the issuance of the charge sheet dated 30-11-1998 is perfectly valid and justified and since the order of the Division Bench dated 4-8-2000 has become final and conclusive, until the departmental proceedings pursuant to the issuance of charge sheet dated 30-11-1998 proceeds further and reaches its logical conclusion, the grant of any benefits to the first respondent for the period subsequent to the order of suspension dated 22-7-1989 till its revocation made on 16-10-1998 cannot be made. Further, though the first respondent filed W.M.P.Nos.36021 and 36022 of 2001 in W.P.Nos.3190 and 11177 of 2000 for a clarification that the direction of the Division Bench, made in para 8 of its common order dated 4-8-2000 will not have any effect in the event of the first respondent succeeding before the Tribunal in T.A.No.55 of 1999, the said W.M.Ps. were also withdrawn by the first respondent as per the endorsement made in the said W.M.Ps. by the learned counsel for the first respondent. Therefore, the various submissions made on behalf of the first respondent based upon G.O.Ms.No.302 dated 4-4-1983, G.O.Ms.No.261, dated 4-8-1992 and G.O.Ms.No.167 dated 10-6-1993 vis-a-vis F.R.53, 54, 54-A and 54-B and also the reliance placed upon the judgments ; and 1980(3) SLR 220 do not require to be considered now in view of our conclusion that the order of the Tribunal dated 31-8-2000 in T.A.No.55 of 1999 is liable to be set aside and the petitioners should be allowed to proceed with the departmental action pursuant to the issuance of the charge sheet dated 30-11-1998. Having regard to our above said conclusion, we refrain from going into the various submissions made G.O.Ms.No.302 dated 4-4-1983 and other G.Os. as we feel it as wholly unnecessary in the present context. As a sequel to it, the further orders of the Tribunal dated 12-12-2000 made in T.A.No.8855 of 2000, as well as, the one dated 27-2-2001 made in C.A.No.29 of 2001 and M.A.No.9197 of 2001 in O.A.No.1716 of 1999 are also liable to be interfered with.
In the result, all the Writ Petitions stand allowed and all the orders of the Tribunal are hereby set aside. No order as to costs. Consequently, W.M.Ps. are closed.