JUDGMENT
1. The petitioner, while he was working since March 17, 1958 as a Pharmacist in the Government Headquarters Hospital, Chittoor, on November 16, 1962, the District Medical Officer asked a staff nurse to give pathedrine injection to a pregnant lady, but the latter informed the former that no stock of pathedrine injections were available, necessitating the forms to make a surprise check of the stock and found that he petitioner had issued 100 ampules of pathedrine in sections to a lady doctor without any indent and orders by him. The petitioner was kept under suspension pending enquiry. The matter was entrusted to the police for investigation. The police laid a charge-sheet in C.C. No. 46 of 1963 for an offence under Section 409 I.P.C. in the Court of the First Class Magistrate, Chittoor, and was convicted under Section 409 I.P.C. for criminal breach of trust and misappropriation of the drugs costing Rs. 19,323.60 ps. On appeal in Criminal Appeal No. 151/63, Sessions Court acquitted him and, on further appeal, in C.A. 223/64, the High Court confirmed the acquittal. The petitioner was reinstated into service with effect form May 24, 1967. The Government, in G.O. Ms. No. 1164(H), dated June 13, 1967, directed to initiate disciplinary proceedings against the petitioner. In the meanwhile, a charge-memo., dated April 27, 1967, has been served imputing that as Pharmacist the petitioner was in charge of medical stores of the hospital and held the keys of the stores. He had to maintain all the accounts, relating to receipts and issue of medicines, as per the standing orders. He has to issue medicines from the stores on indents made by the concerned medical officers duly counter-signed by the District Medical Officer. He has to enter the same in the Daily Issue and Stock Register. He had issued to Dr. Satyavathi, Woman Assistant Surgeon, hundred ampules of pathedrine injections, without any requisition by the doctor or the authority or the countersignature of the District Medical Officer, who detected it on suspicion when he was informed of lack of injections in the hospital. Thereby, he violated the standing orders. It was also further imputed that he corrected the figures in the counter-foils of the indents and the entries in the Issue and Stock Registers to cover up the quantity of medicines misappropriated by him. He misappropriated drugs of the value stated therein; on November 18, 1962 when questioned by the District Medical Officer of those irregularities and shortages, he made an admission that he sold drugs worth Rs. 2,500/- to M/s. Bhaiah Medical Stores and a statement to that effect was recorded on November 19, 1962, confirming his oral admission but subsequently resiled therefrom. The physical verification of the stock of medicines revealed that medicines worth Rs. 15,890-50 were unaccounted for; thereby he should have removed those medicines and utilised their sale proceeds for himself, thereby he caused loss to the Government. It was also further alleged that he concealed two wood boxes, containing medicines worth Rs. 645.00 in a lumber room of the stores with a view to stealthily remove them from the stores for unlawful gain. The petitioner had submitted his written statement on May 13, 1967. An enquiry officer was appointed, who held the enquiry. After giving reasonable opportunity to defend himself by the petitioner, he recorded the evidence and the enquiry officer submitted his report on September 7, 1967. He found four charges proved and recommended that the petitioner is not fit to hold the post of Pharmacist to discharge his duties reliably. Therefore, he recommended to discharge the petitioner from service and to write off the amount misappropriated. On consideration of the report, the second showcause notice was served on the petitioner, but the petitioner did not submit any explanation. Instead, he tendered his resignation, dated September 19, 1968, which was not accepted by the Director of Medical Services. The petitioner also filed O.S. No. 105/67 on the file of the Court of the Subordinate Judge, Anantapur, for recovery of arrears of salary which was decreed by judgment, dated December 27, 1971. By proceedings, dated September 7, 1968, the authority dismissed the petitioner with effect from the date of suspension. By letter, dated May 3, 1977, the Director of Medical and Health Services, Hyderabad, directed the petitioner to remit the sum of Rs. 19,323.60 to the Government account towards the loss of mis-appropriated drugs. By reply, dated July 6, 1977, the petitioner has submitted his reply. The District Collector, Chittoor, by letter, dated December 14, 1979, authorised the Tahsildar under Section 3(1) of the Revenue Recovery Act to take action for the realisation of the loss. By letter, dated 18th January, 1980, the District Collector, Guntur, authorised the Tahsildar, Guntur to realise the amount under the Revenue Recovery Act. Similarly, the District Collector, Madras, was also requested to recover the amount under the Revenue Recovery Act who, in turn, authorised the Tahsildar, Mambalam, Madras-17, to recover the amount from the petitioner. By notice No. 05/38184/80, the Tahsildar, Mambalam, Guindy, directed the petitioner to pay Rs. 19,323-60 ps. to the Superintendent, Government Head-quarters Hospital, Chittoor, within seven days, failing which the amount would be recovered under the Revenue Recovery Act. Assailing the legality of this notice, the petitioner filed the writ petition.
2. Before dealing with the contentions on merits, to conclude the narrative facts, it is necessary to emphasise that, from the record, it is clear that before orders of dismissal are passed by the competent authority, the petitioner resigned voluntarily and left the service without being duly relieved of his duties. It is not clear from the record whether the order of dismissal has been served on the petitioner. Therefore, the petitioner had no occasion to assail the legality of the order of dismissal of the petitioner from service. It is seen that the enquiry officer found all the charges against the petitioner proved. That was accepted by the disciplinary authority. The second showcause notice reiterates the same. The value of the medicines, of which loss was caused to the Government, was recommended to be written off, but was not accepted by the competent authority.
3. The contention of Sri P. L. N. Sarma, the learned counsel for the petitioner, is that the charge in C.C. No. 46/63 under Section 409 of I.P.C. that the petitioner had misappropriated medicines was found not established on merits by the Sessions Court on appeal and was affirmed by the High Court. Therefore, it is an honourable acquittal of the charge. Same set of facts and the evidence of the same witnesses examined before the Enquiry Officer cannot be relied on for dismissal of the petitioner from service and fastening him of the liability for the recovery of the amount. In support thereof, he placed strong reliance on R. P. Kapur v. Union of India (1966-II-LLJ-164), Shaik Kasim v. Superintendent of Post Offices, (1965-I-LLJ-197), A. P. Naidu v. S.C. Railway (1983-I-LLJ-151) and R. J. Divekar v. Union of India 1985(1) SLR. 214. The attempt of Sri Sarma is to avoid the liability. The disciplinary authority recommended to write off the amount misappropriated. It was not indicated in the second show-cause notice that they did not accept the recommendation. Therefore, the Government has no power to recover the amount. Even otherwise, before quantifying. The petitioner had no opportunity to have a say in the matter. Therefore, the notice for payment is without authority of law. These contentions have been refuted by the Government Pleader.
4. The first question, therefore, is whether the disciplinary authority has jurisdiction and validly made the enquiry into the mis-conduct of the petitioner for the charges referred to hereinbefore. Before dealing with that question, it is necessary to extract the findings recorded by the Sessions Court and confirmed by the High Court. It is already seen that the Magistrate convicted the petitioner for the offence under Section 409 I.P.C. and sentenced him to undergo R.I. for three months and pay a fine of Rs. 100/-, in default to suffer R.I. for another one month. The Sessions Court acquitted him in Criminal Appeal No. 151/63 by judgment dated August 24, 1963. The charge framed is that the “petitioner was entrusted between the dates of January 1962 and November, 1962, being the servant in the employment of the District Headquarters Govt. Hospital, Chittoor, as a Pharmacist and in such capacity was entrusted with certain property, to wit, medicines worth Rs. 15,890-55 ps. Committed criminal breach of trust in respect of the said property and thereby committed the offence punishable under S. 409 IPC.” The Sessions Court found that a single charge with reference to all the medicines entrusted between the two dates, namely, January 1962 and November 1962 and misappropriation thereof is not a valid charge. Under S. 222(2) Cr. P.C., the charge would have been that the petitioner had committed criminal breach of trust of dishonestly misappropriating the amount, if the period does not exceed one year, would be a valid charge, but the charge does not relate to money misappropriated but of the goods. Therefore, whenever the appellant misappropriated at every time and each item of the medicine, it is a distinct offence. It is not the prosecution case that the entire quantity of the medicines referred to in the charge was misappropriated by the petitioner at one time. Therefore, under Section 233 Cr. P.C. there shall be a separate charge and every such charge shall be tried separately or a joint trial, as envisaged under the relevant provisions of Secs. 234 to 236 of the Criminal Procedure Code (Old Code). Therefore, a single charge is clearly illegal by operation of Section 222 and it is in contravention of Section 233 Cr. P.C. It was further held that misappropriation of each item of medicines, being a distinct offence, the petitioner cannot be tried in one trial for more than three distinct offence. But he was tried for such large number of offence in a single charge and it is not a curable irregularity under Section 537 of Cr. P.C. It offends mis-joinder of charges and vitiates the trial. Then he examined with reference to the evidence and held that some of the items were found in the lumber room (Charge No. 5 in the disciplinary proceedings charge memo). But, the charge framed covers misappropriation of the said items also. It is further found that there is no proof of entrustment of the goods to the petitioner and he was not having exclusive control. There is no proof that petitioner received all the medicines. There is no separate charge with regard to specific items of the medicines the appellant is alleged to have received and not accounted for. In the absence of satisfactory proof that the appellant was entrusted with the medicines, the charge of misappropriation is not satisfactorily established by evidence, direct or circumstantial, to prove that the petitioner had misappropriated such medicines. It was further held that it is not sufficient if the prosecution proves that some medicines were received by the accused and some medicines were found missing and ask the Court to draw an inference that the petitioner was enstrusted with the medicines, which are subsequently misappropriated. It must be proved that the petitioner was entrusted with specific items of the medicines and, in the absence of a separate charge in respect of each of the items of the offence, the prosecution has not established that the petitioner was entrusted with specific items and that he failed to account therefore and thereby he misappropriated the amounts. It was thus held as follows :-
“It must be held that there is no satisfactory proof of the entrustment of the medicines which are the subject matter of the charge. In the absence of proof of entrustment, the appellant cannot be convicted of the offence of criminal breach of trust.”
On appeal, in Criminal Appeal No. 223/64, by judgment dated September 6, 1965. Mirza, J. upheld above findings. In addition, it is held that the stock books Exs. P-6 and P-7 and stock issue registers, Exs. P-9 to P-11, have not been regularly maintained and they do not accurately show what quantity of medicines were received or issued. The order of acquittal was confirmed. Thus, it is seen that for an offence under Section 409 IPC, the trial Court had not framed the charges properly. The several charges were lumped in a single charge. There is no satisfactory proof of entrustment of the medicines to the petitioner and thereby the charge of misappropriation has not been established. As seen, the five charges in the departmental enquiry are issuing 100 ampules of pathedrine to a lady doctor without valid permit and counter-signature by the District Medical and Health Officer and thereby violation of the standing orders regarding the issue of medicines from medical stores; fabrication of the counterfoils of indents for medicines, entries in the stock register, and concealment of two deal-wood boxes containing medicines worth Rs. 645/- causing loss to the Government of the misappropriated medicines the value of which is mentioned, etc. The Enquiry Officer found proved all the charges against the petitioner and those findings are based on evidence. No doubt, the same set of witnesses were examined before the Criminal Court and also before the Enquiry Officer.
5. The first question, therefore, is on the same set of facts, whether departmental enquiry can be initiated, or whether the acquittal concludes the matter and the authorities are prohibited to initiate the departmental proceedings, culminating in the order of dismissal from service and whether it is valid in law ? under Article 20(2) of the Constitution, “No person shall be prosecuted and punished for the same offence more than once”. In Venkataraman v. Union of India the appellant was a public servant. Public enquiry under the public Servants (Enquiries) Act, 1950 was conducted against Venkataraman, an ICS officer, on certain imputations of mis-conduct and he was found to have committed misconduct and, after following the procedure under Article 311, he was dismissed from service. Subsequently, a chargesheet was laid against him before the Special Judge under Ss. 161 and 165 IPC and S. 5(2) of the Prevention of Corruption Act. He assailed the constitutionality thereof by filing a writ petition under Article 32 of the constitution. In support there of, he placed reliance on Article 20(2) of the Constitution. Mukherjee, J., (as he then was), speaking for the Constitution Bench, held that :
“The ambit and contents of the guarantee under Article 20(2) of the Constitution are much narrower than the doctrine of autrefois acquit or autrefois convict under the common law principles of English Jurisprudence or the doctrine of double jeopardy of Article 5 of the American Constitution. The departmental proceedings is neither a prosecution nor a punishment. The words “prosecuted and punished” are to be taken not distributively so as to mean prosecuted or punished. Both the factors must co-exist in order that the application of the clause may be attracted.”
It was held that enquiry under the Public Servants (Enquiries) Act, 1950, there is neither any question of investigating an offence in the sense of an act or omission punishable by any law for the time being in force, nor is there any question of imposing punishment prescribed by law which makes that act or omission an offence. The purpose of the enquiry was to find the misbehavior of the public servant to enable the competent authority to determine the punishment, which would be impossible, as required under Article 311(2) of the Constitution. It was further held :
“The subject matter of investigation is the truth or otherwise of the imputation of misbehavior made against a public servant and it is only on instances of misbehaviour that the several articles of charge are investigated, upon which disciplinary action might be taken by the Government if it so chooses.”
In State of Andhra Pradesh v. Sree Rama Rao (1964-I-LLJ-150), facts are that the respondent Sub-Inspector of Police was dismissed from service after conducting departmental enquiry and confirmed in appeal. The charge against the respondent was he wrongfully confined the deceased R. Simhachalam, a suspect, tortured him and, on the next day, his body was found in a well and, therefore, he was charged for the offence under S. 304, Part-II, and S. 201 IPC read with S. 149 IPC for causing the death of R. Simhachalam. The Magistrate discharged the petitioner holding that there is no prima facie case against him. Subsequently, revision was taken up. In the meanwhile, department enquiry on the same charge was initiated. Thereafter, he was dismissed from service. In the writ petition, against the order of dismissal, the High Court held that the charge has not been proved beyond reasonable doubt and set aside the order of dismissal. On further appeal, to the Supreme Court, Shah, J. (as he then was), speaking for the Court, held that the High Court may be justified to interfere with the departmental enquiry where the delinquent is proceeded against in a manner inconsistent with the rules of natural justice or in violation of the statutory rules prescribing mode of enquiry or where the authorities have disabled themselves from reaching a fair decision by some considerations extraneous to the evidence and merits of the case or by allowing themselves to be influenced by irrelevant considerations or where the conclusion, on the very face of it, is wholly arbitrary and capricious that no reasonable person could ever have arrived at that conclusion or on other similar grounds. But, the departmental authorities are, if the enquiry is otherwise properly held, the sole judge of the facts and if there is some legal evidence on which their evidence can be based, the inadequacy or realiability of that evidence is not a matter which can be permitted to be canvassed before the High Court under Article 226. It was further held that the rule followed in a criminal trial, that an offence is not established unless proved by evidence beyond reasonable doubt to the satisfaction of the Court, cannot be applied in a departmental proceeding. Accordingly, the appeal was allowed and the order of dismissal was confirmed. In Union of India v. Sardar Bhadur. (1972-I-LLJ-I at 6), Mathew, J. held that :
“Disciplinary proceedings is not a criminal trial. The standard of proof required is that of preponderance of probabilities and not proof beyond reasonable doubt …. Where there are some relevant materials which the authority has accepted and which materials may reasonably support the conclusion that the officer is guilty, it is not the function of the High Court exercising its jurisdiction under Article 226 to review the materials and to arrive at an independent finding on the materials. If the enquiry has been properly held, the question of adequacy or reliability of the evidence cannot be canvassed before the high Court.”
In Thomas Dana v. State of Punjab , B. P. Sinha, J. (as the then was), speaking for majority, held that the confiscation proceedings under Section 167 of the Foreign Exchange Regulation Act or the Sea Customs Act is not prosecution within the meaning of Article 20(2) of the constitution. The fact that the goods were confiscated and also penalty was inflicted does not bring into operation the provisions of Article 20(2) so as to prevent the prosecution & imprisonment under Section 167 read with Secs. 23 and 23-B of the Foreign Exchange Regulation Act or under Section 120-B of the Penal Code.
6. Thus, it is now well settled that departmental enquiry is not a prosecution nor a punishment for an offence under the statutory penal provisions and therefore, it is not violative of Article 20(2) of the Constitution.
7. The doctrine of issue-estoppel or autrefois acquit, as enshrined in Section 300 of the Criminal Procedure Code, 1973, or Section 403 of the Old Code, is equally inapplicable to the departmental proceedings. The protection afforded thereunder is only where the accused is tried for an offence under the Indian Penal Code or other statutory provisions and he was acquitted of the charge, for whatever may be the reasons, and for the same charge he cannot be tried once over, but a departmental enquiry is neither a prosecution, nor the punishment a conviction. It is now well settled that the rules of the Evidence Act are inapplicable to the proceedings under the departmental enquiry. Therefore, the doctrine of autrefois acquit or issue-estoppel does not apply to the departmental proceedings, initiated under Article 311 of the Constitution, and the relevant Rules made under proviso to Article 309 of the Constitution (for instance Rule 8 of the Andhra Pradesh Civil Services (Classification, Control and Appeal) Rules, which is relevant for the purpose of this case). Then the other area of express prohibition is Section 11 of the Code of Civil Procedure viz., the doctrine of res judicata. This doctrine does not apply to the proceedings initiated against the public servants since the Departmental proceedings cannot be treated either as a suit or as an issue in which the matter directly and subsequently in issue is a departmental proceeding. The enquiry officer cannot be termed as a Court for the purpose of applying the doctrine of res judicata. Therefore, the only area under which the doctrine that the departmental authorities cannot proceed for a charge against the delinquent officer after his acquittal may in an appropriate case be considered under Article 14 of the Constitution : Obviously, for this reason, the learned counsel relies on R. P. Kapur’s case (supra). One of the contentions in that case was that suspension pending enquiry or pending a criminal proceeding cannot be said to be a disciplinary matter at all attracting Article 314 of the Constitution, While repelling that contention, Wanchoo, J. (as he then was), speaking for majority, held that suspension pending enquiry of criminal proceeding would come within the ambit of disciplinary matters. In that context, it was observed thus (1966-II-LLJ-164 at 171) :
“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. The usual practice is that, where a public servant is being tried on a criminal charge, the Government postpones holding a departmental enquiry and awaits the result of the criminal trial and departmental proceedings follow on the result of the criminal trial.”
Relying upon this observation, a doctrine has been built up in certain decisions which we would advert at an appropriate stage that, on honourable acquital, the departmental enquiry cannot be initiated on the same set of facts. It is to remember at this juncture that Rule 8(1) of Andhra Pradesh Civil Services (Classification, Control and Appeal) Rules, made in exercise of the power under proviso to Article 309 of the Constitution, empowers the disciplinary authority to impose the following penalties in Part III under the chapter ‘Control’ thus :-
“8(1) The following penalties may, for good and sufficient reason and as hereinafter provided, be imposed upon members of the service specified in Rule 5, namely,
(i) to (vii) ……..
(viii) Dismissal from service of the State.”
The procedure for imposition of the penalty has been provided in the subsequent Rules, the details of which are redundant to recount for purpose of this case. In K. T. Vishwanath Pillai v. Commission of Land Revenue 1986(1) ALT 99 (SN), I have considered in the context of R. 13 of the A.P. Civil Services (Classification, Control and Appeal) Rules, and Article 14 of the Constitution in the context of suspension of a Government servant pending enquiry, held that the subject matter of disciplinary proceedings is “the act of commission or omission in the performance of the duty which reflects on the reputation of the officer or his integrity or faithfulness or devotion to duty.” Disciplinary proceeding that would be taken is “against the conduct of the officer for the act or omission even though the act or omission relates to an activity which may be the subject matter of an appeal or revision for the correction thereof.” The test is “whether the act or omission has a reasonable connection to his conduct and has caused any reflection upon the reputation of the member of the service on his integrity or devotion to duty as public servant, if the public servant conducts himself in such a way which is inconsistent with the faithful discharge of his duties during the course of service, in certain instances, which may amount to misconduct which requires to be investigated or enquired into.” Therefore, what is sought to be enquired into is the conduct of the petitioner in the performance of his duty. Thus, when departmental enquiry is initiated, it is not for the purpose of finding out whether the officer committed a crime as defined under the relevant provisions of the Indian Penal Code or any statutory provisions or sit over the judgment of a criminal court but to enquire into the conduct of the officer in relation to the discharge of the duties which he was entrusted of to be performed and was responsible. To find whether the officer is entitled to be continued in service, disciplinary proceeding is to be conducted, as per the Andhra Pradesh Civil Services (Classification, Control and Apple) Rules and Article 311 of the Constitution and, if established, to impose any one of the penalties prescribed in Rule 8 thereof. Therefore, the deprivation of livelihood under Art. 21 of the Constitution is in accordance with the procedure established by law.
8. In the context of a prosecution and resultant acquittal of the charge and subsequent departmental proceedings for misconduct came up for consideration before the Court for the first time in State of A.P. v. K. H. Khan 1967 (2) An. W.R. 121. Kumarayya. J. (as he then was) held thus :
“It is firmly settled that even though an order of acquittal be recorded by a criminal court, there is no legal or constitutional bar to departmental enquiry being held on the termination of the criminal proceedings in favour of the delinquent as a departmental proceeding is not a prosecution within the meaning of Section 403 of the Criminal Procedure nor can it fall within the ambit of Art. 20(2) of the Constitution”.
I respectfully agree. In Corporation of the City of Nagpur v. Ramachandra G. Madok , Fazal Ali, J. speaking for the Court held that :
“The question whether or not the departmental enquiry against the employee involved in the criminal case should be continued even after his acquittal in a criminal case is a matter which has to be decided by the department after considering the nature of the finding given by the criminal court. Normally, where the accused is honourably and completely exonerated of the charge, it is not expedient to continue a departmental enquiry on the very same charge or grounds of evidence. However, merely because the accused is acquitted, the power of the authority concerned to continue the departmental enquiry is not taken away nor its discretion in any way fettered.”
When this view was invited to the attention of Sri Sarma, the learned counsel, he seeks to contend that in that case, the criminal proceeding is yet to get quietus. Therefore, it is not a case of accquittal; the ratio does not apply. I am afraid. I cannot accede to this contention. In a case where the same charge is levelled against a delinquent officer and the prosecution adduces evidence in proof thereof but fails and the accused honourably gets acquittal on merits, may be, in an appropriate case, the disciplinary authority may, in the exercise of its power of control of its subordinates, drop the proceedings, But, that does not mean that the authority is devoid of the power to take disciplinary action. The acquittal may be for defective framing of charges; want of sanction, or defective sanction or on giving benefit of doubt, since the standard of proof is “beyond shadow of doubt” The Court is not assured of its conscience to record a conviction. But, with a view to maintain control over the subordinate staff, the disciplinary authority need not keep it hands back and allow a delinquent despite his notorious conduct, to continue in service. As a measure to have effective control over the subordinates and to maintain absolute integrity and devotion to duty in the discharge of the public affairs, if the disciplinary authority feels it expedient to conduct an enquiry into the conduct of the delinquent officer, who was previously acquitted, it is open to the authority to start afresh and conduct enquiry in regard to the conduct. It is to remember that, when a charge is laid in a criminal case, the prosecution has to establish all the essential ingredients of the offence for which the charge is laid and the prosecution has to travel all the way to prove the charge beyond any shadow of doubt so as to seek the conviction of the accused. Any link in the causation snaps off its continuing thread giving rise to doubt. But, the standard of proof in a departmental enquiry is not as rigorous as the one contemplated in a criminal trial. Some acceptable material on record as the preponderance of probabilities to come to the conclusion that the delinquent has committed misconduct is the test. The strict rules of service do no apply to the departmental proceedings. Even the Supreme Court, in some cases, held that, on acceptable conlectures, the delinquent can be punished for misconduct. The rule that normally when a delinquent is accused of an offence is honourably acquitted he may not be proceeded with in a departmental enquiry appears to have been stemmed from the doctrine of “undue harassment to a public servant” which is a facet of non-arbitrariness or fairness of the procedure engrafted under Art. 14 of the Constitution. But, each case must be considered in the light of its own facts. Court has to strike a reasonable balance between “public Justice” and “needless harassment” to public servant. Take for instance, it is now an accepted, and a prevalent fact too, that corruption has crept into every facet of public life and has been parading in public administration, be it with persons connected with public affairs, or non-officials corroding vital of public life and is impinging the efficacy of rule of law. If a public servant is charged for corruption charge either under the relevant provisions of the Prevention of Corruption Act on trap to demand and accept illegal gratification or under Secs. 161 and 165 of the I.P.C. he gets an acquittal, for varied reasons, it does not automatically goes to show that the conduct of the public servant is beyond Nelsons’s eye and the purview of enquiry departmentally as the conduct of a delinquent runs through the entire spectrum of service. Conversely when a delinquent is charged for being possessed of disproportionate assets to the known source of income but on honourable acquittal, if departmental enquiry is initiated, it would be a case of abuse of power and arbitrary vindictive process. As said earlier, standard of proof in a criminal charge is proof beyond reasonable doubt but in a departmental enquiry, it is preponderance of probabilities and some acceptable evidence but not as rigorous as on the basis of strict evidence under the Evidence Act in the criminal trial. In Bhaurao v. State of Maharashtra (1973-I-LLJ-153), Deshpande, J speaking for the Divisional Bench, has held that the order of acquittal or the finding recorded by a criminal court cannot be conclusive of the allegations made against a public servant. The order of acquittal may be based on any technical point such as defect in the charge or the defect in the procedure. The acquittal may some times result as a result of some doubt in the mind of the court which may no feel it safe to convict the person and send him to jail and may feel it safe to give benefit of doubt to such an accused. The order of acquittal may also be the result of witness at the trial turning hostile and deposing in the court contrary to what they stated before the investigating agency. The prosecution sometimes chooses to produce only some piece of evidence and the opinion recorded by the trial court in such cases cannot be conclusive of other pieces not produced before such Court. Strict rules of evidence are not applicable to the proceedings in the departmental enquiries. Any piece of evidence which could have been discarded by the criminal court on the ground of inadmissibility can still be taken into account by the dismissing authority. Even in cases whether the evidence led before the criminal court and the dismissing authority happens to be the same. The standard of proof is different. The departmental enquiry into conduct is to find out whether such a public servant deserved to be retained in service. In that case, the public servant was charged for an offence under Section 161 IPC. It ended in acquittal. The disciplinary proceedings were initiated and ended in dismissal from service. When it was asserted that the doctrine that honourable acquittal in the criminal trial precluded the authorities to take disciplinary action, the Division Bench did not accept the contention and held that finding recorded by the criminal court need not be binding on the dismissing authority while holding the departmental enquiry against the delinquent officer under the rules. I respectfully agree with the ratio therein.
9. In P. S. Reddy v. Excise Superintendent (1959-II-An. W.R. 426, Chandra Reddy, C.J., speaking for Division Bench, has held that the acquittal on the charge of illicit tapping by a criminal court does not impose a bar to initiate action for levying penalty in respect of the same set of facts. Acquittal cannot be pleaded as a bar for proceedings under R. 9(6) of the Akbari Rules and it does not constitute res judicata. It was further held that the findings of criminal court do not bind either the civil court or the fiscal authorities.
10. In Spadigam v. State of Kerala, Mathew, J. (as he then was) held thus : (1970-I-LLJ-718 AT 721) :
“I do not think that judgment of a criminal court acquitting an accused on the merits of a case would bar disciplinary proceedings against him on the basis of the same facts, or that the judgments would operate as conclusive evidence in the disciplinary proceedings. The reason for it is not far to seek. A criminal court requires a high standard of proof for convicting the accused. The case must be proved beyond reasonable doubt. The acquittal of an accused by a criminal court only means that the case has not been proved against him beyond reasonable doubt. Such a standard of proof is not required for finding a person guilty in a disciplinary proceeding. It would be enough if there is preponderance of probabilities of his guilt.”
The same is the view of Khalid, j. (as he then was) in G. Ravindran Nair v. Chairman, Cochin Port Trust (1979-I-LLJ-94), where the learned Judge has held that there is no bar in parallel proceedings before a criminal court and before a disciplinary authority and also for the position that the acquittal in a criminal case does not necessarily bar proceedings by the disciplinary authority.
11. In Motising v. S. D. Mehta (1966-I-LLJ-55) Miabhoy, J., speaking for the Division Bench, has held that there is no legal basis for the view that a departmental enquiry is based on the same facts on which can order of acquittal has been recorded by a criminal court. There is no constitutional bar to the departmental enquiry on the termination of the criminal proceeding in a favour of the delinquent. The departmental enquiry is initiated to find the mis-conduct and the delinquency required to be dealt with in the interests of the public administration. In holdings such as enquiry, the enquiry officer is not at all concerned not is it his object to undertake the decision of the question as to whether the findings record by the criminal court were right or wrong. His object is only to enquire not the question as to whether the delinquent is guilty of misconduct or of delinquency and the mere fact that he is likely to reach the conclusion before that recorded by the criminal court cannot bring him within the ambit of law of contempt.
12. In. R. Patnaik v. State of Orissa , Sri. Rama v. S.P. of Police (1967-II-LLJ-141), Om Prakash Joshi v. State of Rajasthan 1983 (3) SLR 612, Khizar Mir v. Director of Fisheries 1970. SLR. 632 (J&K) and Gurdev Singh v. State of Punjab (1971-II-LLJ-359,) the same view has been taken.
13. In. A. P. Naidu’s case (supra), relied on by Shri Sarma, the facts therein were that the petitioner was sufficiently senior for promotion to the post of Grade-I Permanent Way Inspector. He was successful in the written test. But he was not promoted pending a criminal charge for misappropriation under S. 409 of the IPC and Ss. 5(1) and 5(2) of the Prevention of Corruption Act. He was acquitted of the charge. Then the disciplinary proceedings were initiated against him. He assailed the disciplinary proceedings on the ground that when he was acquitted honourably of the criminal charge, the authority with a mala fide intention of depriving him of promotion, initiated departmental enquiry. The defence of the accused before the criminal court was that he delivered the material a Kazipet stores. The register was not produced at the criminal trial. The criminal court found that the prosecution has deliberately withheld the production of the records and drew an adverse inference. In those circumstances, my learned brother, Choudary, J. Found thus (1983-LLJ-151 at 154) :
“It should be noted that the present departmental enquiry merely picks up one small bit of the facts. …… The failure of the petitioner to deliver vouchers did figure in the criminal trial. But the South Central Railway was then trying to use the circumstances against the petitioner to sustain its main charge of criminal misappropriation. Now the same circumstances is sought to be used for the purpose of showing lack of integrity in not obtaining vouchers for goods delivered to the Assistant Store Keeper Kazipet”.
On those facts, it was found that the authority wanted to punish the petitioner by fair or foul means and the mental attitude was clearly the essence of vindictiveness. This, it could be seen that the learned Judge was satisfied on the facts in that case the departmental proceedings was a measure of vindictiveness and, therefore, it is an arbitrary exercise of power offending Article 14 of the Constitution. Accordingly, in may view, the ratio in that case is of little assistance in the light shed by legion of precedents referred to hereinbefore. In Divekar’s case (supra), the facts are that an employee was working as a loco driver at Ratlam. There was a collision of two trains at a cabin. He was charged for an offence under S. 101 of the Indian Railways Act, and S. 204-A of the Indian Penal Code. He was ultimately acquitted of those charged. Then departmental enquiry was initiated on the same set of facts. Departmental enquiry was being proceeded in limine, after keeping the petitioner under suspension for fourteen years. Then, he sent up a letter to the Chief Justice which was treated as a writ petition. Then, in the meanwhile, an order was passed removing him from service. It was contended that the departmental enquiry instituted against him on the same facts deserves to be quashed. In those circumstances, it was held by the Division Bench that the departmental enquiry is not maintainable and the order of removal is illegal and accordingly it was quashed. There appears to be a line of decisions in the Madhya Pradesh High Court starting with Q. A. Wahid Ali v. State of Madhya Pradesh , which was approved by he Supreme Court in state of M.P. v. Syed Qumarali 1967 SLR 229 (SC). It was retired by a Full Bench of the same Court in Harinarayan v. State of Madhya Pradesh 1976 (1) SLR 585. In Harinarayan’s case (supra), Regulation 241 of the police Regulations provided a bar of departmental enquiry, when a delinquent is acquitted on merits, except on technical grounds and that too on obtaining sanction. Earlier Division Bench decision in Wahid Ali’s case (supra) was doubted and referred to Full Bench. But in the Full Bench judgment itself, Tare, C.J., has held that :
“Although departmental enquiry may proceed on the same facts, it cannot proceed on the same charge which was the subject matter of criminal offence. Similarly, departmental authority cannot be permitted to sit in judgment over the decision of a criminal Court as an appellate authority and to pronounce a contrary view. If the acquittal is on technical ground, in that event the departmental authority can certainly punish the employee by coming to its own conclusions. If, however, the acquittal is by giving the benefit of doubt or the criminal court judgment itself gives an indication that the retention of an employee is undesirable, in that event also, the departmental authority would be free to take disciplinary action and to come to its own conclusions.”
In the light of the prevailing law and in view of the facts in that case and statutory rule, it was held that the departmental enquiry is not sustainable. It would appear that on the facts in Divekar’s case (supra) the Division Bench has come to the conclusion that it may be undue harassment to the delinquent officer to pursue the departmental enquiry on the same set of facts. But, that does not furnish any valid ratio that in no case, departmental proceedings can be made. Similarly, in Shaik Kasim’s case (supra), relied on by the learned counsel for the petitioner, it is no doubt true that the learned Judge has held that, when the acquittal is substantially on the merits, on identical facts and charges, it may not be appropriate for a disciplinary authority to record a finding of guilt and to punish thereon. But, with due respect, I am unable to agree. As stated earlier. The purpose of the departmental enquiry is to enquire into the conduct of the officer, It is neither a prosecution nor a punishment. An order a removal or dismissal from service is with a view to control the efficiency of the civil administration and, on the same facts, in an appropriate case, the proceedings can be initiated with a view to control the efficiency in the administration and to root out corrupt proclivity or other causes of misconduct amongst public servants, as otherwise it will have a devastating effect on the efficacy on the rule of law. Accordingly, action can be initiated departmentally to remove a public servant from service. It is neither a prosecution nor a conviction as contemplated in Article 20(2) of the Constitution. It is in the nature of penalty for mis-conduct as envisaged under the relevant statutory service rules. Thus considered, I hold that, though on the same se of facts but for different charges when a departmental enquiry is conducted in accordance with the procedure prescribed in the A.P. Civil Services (Classification, Control and Appeal) Rules, there is no bar for taking disciplinary action after the acquittal of the delinquent officer in the criminal prosecution. If there is any acceptable evidence and the preponderance of probabilities do lend support to the conclusion to the disciplinary authority that the delinquent officer committed misconduct in the discharge of his duties, he is liable to be dismissed or removed from service. The acquittal is not a bar, nor arbitrary, offending Article 14 of the Constitution. The petitioner is legally dismissed from the service for the proved charges and is liable to make good the loss caused to the Government. Therefore, I hold that the first contention is not sustainable.
14. The next question is, whether the respondents have validly determined the liability of the petitioner for the payment of Rs. 19,323 60 ps. as found in the charges and in the letter. It is already seen that the Enquiry Officer has recommended to writ off the amount which the petitioner caused loss to the Government. The Director of Medical and Health Services has given direction to the disciplinary authority to recover the amount. He gave notice to the petitioner but passed no order. But, before, determining the amount actually due, no enquiry was conducted. By that date, the petitioner had already resigned and even before refusal of the resignation letter, he had already left the services. Therefore, there is no opportunity to the petitioner before quantifying the amount for which the liability fastened. In Muljakar v. Government of A.P. 1970 (2) An. W.R. 360 the Division Bench speaking through Ramachandra Rao, J. (as he then was) held that under Section 52 of the A.P. Revenue Recovery Act, 1895, the person sought to be fastened with the liability is entitled to be heard before quantification of the amount due and failure to give an opportunity vitiates the certificate on the breach of principles of natural justice. I respectfully follow the ratio in that case. The petitioner not having been afforded reasonable opportunity of representation and hearing before quantifying the liability, it is violative of Section 52 of the Revenue Recovery Act and also violative of the principles of natural justice. Accordingly, the impugned notice is quashed. It is open to the respondents to issue a notice a fresh indicating the liability of the amount due and it is for the petitioner to give an explanation and place the necessary material in support thereof and thereafter the respondents may pass appropriate orders and then call upon the petitioner to pay the amount within a reasonable time to be indicated in the notice; it is open to the authority to proceed to recover the amount under the Revenue Recovery Act.
15. The writ petition is accordingly allowed, but in the circumstances, without costs, Advocate’s Fee : Rs. 300/-.