ORDER
V. Kanagaraj, J.
1. The petitioner has filed this writ petition praying to issue a Writ of Certiorarified Mandamus to call for the records of the second respondent in DO/DGM(NR):DA:116/01/96, dated 24.10.1996 and the records of the third respondent in DO/GM(TRV):11 AA 97, dated 16.6.1997 and quash the same and direct the respondents to reinstate the petitioner in service with retrospective benefits.
2. On a perusal of the materials placed on record, it comes to be known that the petitioner was an employee of the South Indian Bank Limited, Tirunelveli, which was subsequently renamed as Bank of Tamil Nadu Limited; that the said Bank of Tamil Nadu was amalgamated with Indian Overseas Bank on 19.2.1990; that the petitioner while working as Manager of the Tuticorin Branch of Bank of Tamil Nadu, on a complaint dated 2.3.1976 lodged to the Bank by one of its customers viz. Thangaiah Chettiar on allegations that without his knowledge, his fixed deposit had been taken as security by the petitioner for a pronote loan obtained by one B.Venkadasamy in connivance with him and the bank authorities besides lodging a complaint, dated 1.4.1976 with the Inspector of Police, Crime Branch, Tuticorin, who registered the same as Crime No.158/76 for the offences punishable under Sections 419,420 and 467 IPC, had also initiated departmental proceedings against the petitioner not only regarding the complaint of the said Thangaiah Chettiar but also for granting nine agricultural loans aggregating to Rs.36,800/= for purchase of pumpsets to persons, who, on investigation came to be found as non-agriculturists and therefore suspended him by order dated 16.4.1976; that thereafter, the Bank had issued the charge.memo dated 5.5.1976 framing the followed specific charges:
“(a) Fraudulent Acts highly prejudicial to the interests of the Bank and involving the Bank in serious loss.
(b) Alleged acceptance of an illegal gratification from a customer.
(c) Engaging in activities outside the scope of your official duties.
(d) Willful disobedience of lawful and reasonable orders of the Management.
(e) Fraudulent Act in sending false credit reports willfully with intent to get benami loans sanctioned by the Bank to purchase pumpsets.
(f) Willful and dishonest concealment of material facts.
(g) Betrayal of trust and confidence reposed in you by the Management as responsible officer of the Bank.”
3. It further comes to be known that objecting to the issuance of chargesheet dated 5.5.1976 pending the criminal case, the petitioner filed a suit in O.S.No.340 of 1976 on the file of the Court of District Munsif, Tirunelveli for declaration and permanent injunction restraining the Bank from proceeding with the chargesheet and the said suit having been decreed on 28.9.1977, the Bank preferred an appeal in A.S.No.2 of 1978 on the file of the Court of the Subordinate Judge, Tirunelveli and the said appeal was allowed on 9.8.1978 thus setting aside the judgment and decree dated 28.9.1977 in O.S.No.340 of 1976.
4. It further comes to be known that in the criminal case registered against the petitioner, in C.C.No.1 of 1979 on the file of the Court of Additional Chief Judicial Magistrate, Tirunelveli, he was found not guilty and was thus acquitted of the charges by the judgment dated 12.9.1980 and aggrieved, the State had preferred an appeal in Criminal Appeal No.69 of 1980 before this Court and a learned single Judge of this Court, by the judgment dated 26.8.1986, had dismissed the said appeal, thus confirming the judgment of the trial Court.
5. It further comes to be known that consequent to the acquittal of the petitioner of the criminal case by the trial Court on 12.9.1980, the respondent Bank had issued a charge memo. dated 6.12.1980 superceding the earlier charge memo. dated 5.5.1976. In the charge memo. dated 12.9.1980 the following charges were framed against the petitioner:
“(a)Acts of misconduct highly prejudicial to the interest of the Bank.
(b)Gross negligence and dereliction of duty, disobedience of lawful and reasonable instructions of the Management.
(c)Betrayal of confidence reposed on you by the Management as responsible officer of the Bank.”
It is clear from this charge memo. that the charge and facts with regard to fixed deposit of the said Thangavel was deleted, probably, in view of the judgment of acquittal passed in the criminal case by the trial Court. In all other respects, the charge memo. dated 5.5.1976 and this charge memo. dated 12.9.1980 are one and the same.
6. Aggrieved at the issuance of the said charge memo. dated 6.12.1980, the petitioner had again approached the civil Court and filed a suit in O.S.No.688 of 1981 before the Court of District Munsif, Tirunelveli for a declaration that the charge memo. dated 6.12.1980 issued to him is illegal and void and also for a permanent injunction restraining the respondent Bank from proceeding with the charge sheet and on the said suit having been dismissed by the trial Court on 24.12.1983, the petitioner had preferred an appeal in A.S.No.17 of 1984 before the Court of Subordinate Judge, Tirunelveli and the said appeal also coming to be dismissed, thereby confirming the judgment and decree of the trial Court, the petitioner had preferred a Second Appeal No.603 of 1985 on the file of this Court.
7. It further comes to be known that in the said Second Appeal, an interim direction was given on 22.6.1985 in C.M.P.No.6403 of 1985 thereby ordering that the departmental proceedings shall go on and that no final order be passed till the disposal of the said second appeal and pursuant to the said directions of this Court, the enquiry proceedings went on. The petitioner defended the charges on ground that the advance was made as sanctioned by Head Office after obtaining necessary security documents, such as pronote, Hypothecation agreement, letter etc. from the lonees and guarantee bond from the dealer-guarantor for the full amount and the dealer has also given cash bills for the motors and pumpsets in question and the authorised dealer i.e. B.Venkatasamy has also given property security to the Bank for the entire amount due from the lonees along with his wife besides paying a sum of Rs.10,000/= in cash on 31.5.19756 thus there is no loss to the Bank. The Enquiry Officer after conducting enquiry into all the charges framed against the petitioner submitted his findings to the disciplinary authority on 25.12.1986 thereby holding the petitioner guilty of all the charges framed, but further proceedings were stalled. Thereupon, on 19.7.1996, when the above said Second Appeal came up for final hearing before this Court, the petitioner withdrew the same and hence the second appeal was dismissed as withdrawn.
8. It further comes to be known that after the dismissal of the said second appeal as withdrawn on 19.7.1996, the disciplinary authority by his letter dated 19.8.1996 forwarded a copy of the enquiry officer’s findings to the petitioner and upon issuing a show-cause notice dated 30.9.1996 to the petitioner regarding the proposed punishment, for which the petitioner had replied on 21.10.1996, the second respondent/disciplinary authority inflicted the punishment of dismissal from service on the petitioner.
9. Aggrieved, the petitioner preferred an appeal to the third respondent/appellate authority and the said appeal also having come to be dismissed by the third respondent by his order dated 16.6.1997, the petitioner has come forward to file the above writ petition on grounds such as (i) that the second respondent failed to consider that even after the Bank succeeded in A.S.No.2/98 on the file of the Court of Subordinate Judge, Tirunelveli, the Bank did not choose to proceed against him regarding the charge memo. dated 5.5.1976 and hence the respondents ought to have withdrawn the disciplinary proceedings; (ii) that the memo of charges dated 5.5.1976 and 6.12.1980 and the charges framed in the criminal trial relate to the same set of facts, which fact was admitted by the Assistant General Manager of the Bank in the counter filed in C.M.P.No.6403 of 1996 in S.A.No.603 of 1985, which application was filed by the petitioner herein to raise a substantial question of law that the charge memo. dated 6.12.1980 is not in accordance with the administrative circular No.65/74, dated 14.5.1974; (iii) that the respondents 2 and 3 ought to have held that issuing a fresh memo. dated 6.12.1980 is illegal and the same is violative of principles of natural justice, when the Bank choose not to proceed with the charge memo. dated 5.5.1976; (iv) that the respondents 2 and 3 failed to appreciate that the parties to the nine transactions to which reference has been made in the memo. of charges, deposed as witnesses before the criminal Court in C.C.No.1/79 and their evidence was disbelieved by the learned Magistrate; (v) that the respondents 2 and 3 ought to have held that the enquiry was not conducted in accordance with law since the management was represented by a law graduate and the enquiry was conducted by an Advocate but the petitioner was denied the right to be represented by a lawyer; (vi) that respondents 2 and 3 ought to have held that there is no collusion between the petitioner and B.Venkatasamy when the criminal court in C.C.No.1/79 after elaborate trial negatived the allegation of collusion; (vii) that the respondents 2 and 3 failed to appreciate that the Bank had not sustained any loss and that the loan amounts were secured and the alleged loss is contrary to the evidence of P.W.24 in C.C.No.1/79; (viii) that the respondents have failed to take into consideration the meritorious services rendered by the petitioner for 25 years to the Bank and was also awarded with “silver jubilee award”. On such and other grounds, the petitioner would pray to grant the reliefs extracted supra.
10. The respondents have filed a counter affidavit thereby denying all the allegations of the petition and further submitting that at each and every stage, principles of natural justice have been followed by them. Further citing the judgments of the Apex Court reported in (i) 1992-II-LLJ 744 (ii) 1996-II-LLJ 427 and (iii) 2000(1)LLN 1992 and also that of the High Court of Andhra Pradesh reported in 1996-I-LLJ 315, the respondents would submit that in Para No.14 of the counter filed by the respondents in C.M.P.No.6403 of 1996 in S.A.No.603 of 1985 before this Court, they have stated that the charges framed against the petitioner under chargesheet dated 6.12.1980 and the charges framed against the petitioner in Criminal Case in C.C.No.1 of 1997 are entirely different and that there is no legal bar to proceed against the petitioner departmentally, after his acquittal in the criminal case as the charges in the departmental proceedings are different from the charges in the criminal case even after the acquittal of the delinquent employee from a criminal case,the departmental authorities could pursue the disciplinary proceedings. Further submitting that the fact of the petitioner being awarded with a watch by the Management as per the Bank’s scheme after completing 25 years of service does not in any way affect the charges or the disciplinary proceedings initiated against him and would ultimately pray to dismiss the above writ petition with costs.
11. During arguments, the learned counsel appearing on behalf of the petitioner would strenuously argue the case of the petitioner on three points viz. (i) that there was no reasonable opportunity afforded for the petitioner during enquiry, (ii) that from among nine witnesses, who have been examined in the criminal Court, not even a single witness has been examined in the departmental proceedings, and (iii) that even those issues forming part of the criminal Court proceeding and the departmental proceedings are same and on acquittal of the petitioner in the criminal case, the departmental proceeding cannot be sustained on identical set of facts. The learned counsel would also cite a number of judgments delivered by different upper forums of law including the Apex Court, such as,
(1) (HARDWARI LAL vs. STATE OF U.P. AND OTHERS)
(2) (CAPT.M.PAUL ANTHONY vs. BHARAT GOLD MINES LTD. AND ANOTHER)
(3) (SHAIK KASIM vs. THE SUPERINTENDENT OF POST OFFICES, CHENGLEPUT Dn. AND ANOTHER)
(4)1991-II-LLJ 1 (CHANDRAKANTH SHRIDHAR DESHPANDE vs. GOVT. OF MAHARASHTRA & ANOTHER)
12. In the first judgment cited above wherein the material witnesses were not examined in the departmental proceedings, the Honourable Apex Court held that such enquiry held is vitiated being in violation of natural justice.
13. In the second judgment cited above, wherein the criminal and departmental proceedings were based on identical set of facts and the witnesses were also one and the same in both the proceedings, the Apex Court while reiterating that ‘the proceedings in a criminal case and departmental proceedings can go on simultaneously, except where departmental proceedings and criminal case are based on the same set of facts and the evidence in both the proceedings is common’ and having found that while the inquiry officer relying on the evidence of the witnesses held that the charges are proved, the criminal Court came to the opposite conclusion and held the accused not guilty of the offences charged, on facts, held that ‘it would be unjust, unfair and rather oppressive to allow the findings recorded at the ex-parte departmental proceedings, to stand’.
14. In the third judgment cited above, the then Officiating Chief Justice of this Court had held:
“An Administrative authority, in initiating disciplinary proceedings against a Government servant, is not bound to wait for the verdict of a criminal court. But, where the Criminal court has tried the concerned person and acquitted him, it would be improper, and such a proceeding is liable to be quashed as not in consonance with the principles of natural justice,if the Administrative authority later initiates disciplinary proceedings on the identical facts, and identical charge and records a contrary conclusion.
There could be no right or inflexible rule that the finding of a criminal Court is conclusive in every sense, upon Administrative authorities. If the finding is purely a technical acquittal, the Administrative authority may conceivably punish on the same facts. It can certainly punish where the acquittal is solely based on lack of sanction, or some technical defect in procedure. It could punish, on the same facts, for some lesser charge, which may not amount to a criminal offence, but may well amount to grave dereliction of duty, entitling disciplinary action.
Where the acquittal is substantially on merits, on identical facts and charges, it will not be proper for a disciplinary Tribunal to record a finding of guilt, and to punish thereon. This is a basic principle of jurisprudence, and it makes no difference that the departmental authority acts before the criminal proceeding, or after it and the Court, in exercise of the jurisdiction under Art.226 of the Constitution, would be justified in striking down the action based on such findings, as not in consonance with principles of natural justice. Otherwise, grave anomalies might follow”.
15. In the fourth judgment cited above wherein in a departmental proceeding, the Department was represented by a person who was well-versed in law and procedure and where the delinquent was refused permission to be represented by lawyer, the Honourable Apex Court while observing that `the petitioner had a right to be represented by a lawyer’ has held that `since he was denied this right, the enquiry would become vitiated’.
16. Citing the above said judgment (1991-II-LLJ-1), the learned counsel for the petitioner besides bringing to fore certain adjournments which were not considered, would mainly stress that though the department was represented by an Advocate, the petitioner in spite of having sought for the assistance of a lawyer, the same was rejected by the enquiry officer and would submit that on this ground alone the departmental proceedings are liable to be held vitiated.
17. On the other hand, the learned counsel for the respondents besides tracing the history of the petitioner from the time of appointment would submit that the petitioner sanctioned various loans beyond his authority which were not recovered and it is an admitted fact on the part of the petitioner in his affidavit filed in support of the above writ petition; that challenging the issuance of the charge memo. dated 6.12.1980, the petitioner had filed a suit in O.S.No.688 of 1981 on the file of the Court of District Munsif, Tirunelveli for a declaration that the charge memo. dated 6.12.1980 issued to him is illegal and void and also for a permanent injunction restraining the respondent Bank from proceeding with the chargesheet and on the said suit having been dismissed by the trial Court on 24.12.1983, the petitioner had preferred an appeal in A.S.No.17 of 1984 on the file of the Court of Subordinate Judge, Tirunelveli and the said appeal also having come to be dismissed, thereby confirming the judgment and decree of the trial Court, the petitioner had preferred a Second Appeal No.603 of 1985, which was later withdrawn by the petitioner without any reason assigned and because of the pendency of the civil suit, the Management was not in a position to carry on with the domestic enquiry instituted and that is the reason for the delay that comes to be alleged on the part of the petitioner.
18. The learned counsel then dealing with the grievance of the petitioner that he was not permitted to seek the assistance of a Lawyer, would indicate that though the Presiding Officer is a law graduate, the Presenting Officer is not a legally trained person nor a Practicing Advocate and therefore the Enquiry Officer is fully justified in not permitting the petitioner to seek the legal assistance of a Lawyer and therefore absolutely no prejudice is caused to the petitioner in this regard. At this juncture, the learned counsel for the respondents would cite a judgment of the Apex Court delivered in STATE BANK OF PATIALA AND OTHERS vs. S.K.SHARMA wherein the Honourable Apex Court has evolved certain basic principles of natural justice keeping in view the context of disciplinary enquiries and orders of punishment imposed by an employer upon the employee in general and classifications are made in between mandatory provisions and non-mandatory provisions and for mandatory provisions, compliance is also mandatory and for non-mandatory provisions, compliance is non-mandatory.
19. Further more, the test of prejudice is also discussed in wide in this judgment and in a disciplinary proceeding, for instance, if enquiry was not conducted, the non-conduct of enquiry is prejudiced by itself and there is no necessity on the part of the delinquent to prejudice in such a situation. However, in spite of an enquiry conducted on the part of the Management in proof of the charges framed, the delinquent comes forward to allege non-compliance of any provision by mere non-compliance without showing prejudice, the proceeding would not either be called prejudicial or would get vitiated unless the delinquent establishes prejudice. For instance, in non-mandatory provisions, if the delinquent requires certain documents for perusal and the said documents were denied to be supplied with, then the delinquent has to prove that on account of non-supply of the said documents, he became prejudiced against. In this judgment, the Honourable Supreme Court has held that `it is the ultimate and overriding objective underlying the rule of audi alteram partem to ensure a fair hearing and that there is no failure of justice’ further stating that `there may be situations where the interest of State or public interest may call for a curtailing of the rule of audi alteram partem and in such situations, the Court may have to balance public/State interest with the requirement of natural justice and arrive at an appropriate decision.’ It is further held in the above said judgment that `the scope of judicial review in these matters is the same whether it is a writ petition filed under Article 226 of the Constitution of India or a suit filed in the Civil Court.’
20. The learned counsel for the respondents, laying emphasis that in a judicial review of this type,there cannot be reappraisal or reappreciation of evidence nor even molding the relief causing such interference with the decision of the decision making authority based on such facts and circumstances in a domestic enquiry and would cite a judgment of the Apex Court delivered in DISCIPLINARY AUTHORITY-CUM-REGIONAL MANAGER AND OTHERS vs. NIKUNJA BIHARI PATNAIK wherein in a case where a Class I Officer of the Central Bank of India was dismissed for acting beyond his authority in allowing advances and overdrawals, several of which becoming sticky and irrecoverable, the Honourable Apex Court has held:
“In acting beyond one’s authority is by itself a breach of discipline and a breach of Regulation 3. It constitutes misconduct within the meaning of Regulation 24. No further proof of loss is really necessary though as a matter of fact, in the instant case there are findings that several advances and overdrawals allowed by the respondent beyond his authority have become sticky and irrecoverable. Just because, similar acts have fetched some profit they are no less blameworthy. It is wrong to characterise them as errors of judgment….”
The learned counsel for the respondents would end up his argument saying that if there is any slightest violation of the regulation also, the Bank is entitled to terminate the services of its employee and would pray to dismiss the above writ petition with costs.
21. In consideration of the pleadings by parties, having regard to the materials placed on record and upon hearing the learned counsel for both, what could be assessed in the given facts and circumstances of the case of the petitioner getting punished by the first respondent Bank is that on a complaint lodged by one of its customers viz. Thangaiah Chettiar to the Bank dated 2.3.1976 to the effect that without his knowledge, his fixed deposit had been taken as security by the petitioner for a pronote loan obtained by one V.Venkataswamy in connivance with him, the Management, besides lodging a criminal complaint dated 1.4.1976 with the Inspector of Police, Crime Branch, Tutocorin, who registered the same as Crime No.158/1976 for the offences punishable under Sections 419,420 and 467 IPC, on specific charges framed, also initiated departmental proceedings against the petitioner not only regarding the complaint of the said Thangaiah Chettiar but also for granting nine agricultural loans aggregating to a sum of Rs.36,800/=, which on preliminary investigation came to be found that all the persons who obtained such loans were non-agriculturists thus leading to the suspension of the petitioner on 16.4.1976. Thereafter, the Management issued the charge memo. dated 5.5.1976 specifying thereby the fraudulent acts committed on the part of the petitioner prejudicial to the interest of the Bank, the acceptance of illegal gratification from customers, engaging himself outside the scope of his official duties, for his willful disobedience of lawful and reasonable orders of the Management, for fraudulent acts of sending false credit reports, for dishonest concealment of material facts and betrayal of trust and confidence reposed in him with specific instances. The Management then, after the verdict of the criminal Court judgment acquitting the petitioner had recast the charges and issued the charge memo. dated 6.12.1980 superceding the earlier charge memo. dated 5.5.1976 thereby deleting the charge and facts with regard to fixed deposit of the said Thangavel and appointing the Enquiry Officer, ordered for the enquiry to be conducted on the charges against the petitioner.
22. The Enquiry Officer so appointed would hold a full enquiry into the charges framed and would submit his report finding the petitioner guilty of all the charges framed. Thereupon, the disciplinary authority by his letter dated 19.8.1986 forwarded a copy of the enquiry officer’s findings to the petitioner and upon issuing a show-cause notice dated 30.9.1996 to the petitioner regarding the proposed punishment, for which the petitioner had replied on 21.10.1996, the disciplinary authority had inflicted the punishment of dismissal from service on the petitioner. Aggrieved, the petitioner would prefer an appeal to the third respondent appellate authority and the said appeal also having come to be dismissed by its order dated 16.6.1997, the petitioner has come forward to file the above writ petition on certain grounds.
23. Though many grounds have been alleged in the grounds of writ petition, the petitioner would ultimately rely mainly on three viz.:
(1) lack of reasonable opportunity,
(2) failure to adduce the best of evidence, in spite of having made use of such evidence before the criminal forum and
(3) that in spite of an acquittal judgment rendered by the criminal Court in the criminal proceeding, the departmental proceeding has been instituted on the same or identical set of facts, which is opposed to the legal principles.
24. For lack of opportunity, the learned counsel for the petitioner would cite a judgment of the Apex Court reported in 1991-II-LLJ 1, wherein, in a departmental proceeding, the Department was represented by a person who was well-versed in law and in spite of the delinquent requesting the enquiry officer to permit him to appoint a lawyer, his request was not conceded, the Honourable Apex Court held that the entire enquiry proceeding would become vitiated.
25. So far as this opportunity that is to be given in favour of the delinquents in such domestic proceedings is concerned, law is settled that in cases where the Presenting Officer is a legally trained person and where the witnesses examined on the part of the Management are many in number and voluminous evidence – both oral and documentary – is adduced on the part of the Management and the petitioner is not a person of the stature to meet with such a situation, he is entitled to seek the assistance of a legally trained person in the enquiry.
26. So far as the petitioner’s case is concerned, it is the Enquiry Officer, who is a legally trained person and since the petitioner’s request for permission to appoint a lawyer on his side was turned down, the petitioner would submit that he became prejudiced greatly and therefore the enquiry proceeding, as a whole, gets vitiated on such irregularity of lack of opportunity in the enquiry proceeding. It may be remembered that the legal proposition held so far on this subject is that only in cases where the Presenting Officer is one legally trained, the delinquent could be provided with the facility of seeking the assistance of a legally trained person and not in cases where the Presiding Officer i.e. the Enquiry Officer is a legally trained person.
27. It is always desirable for the Enquiry Officer to be a legally trained person and on account of appointing a legally trained person as the Enquiry Officer, the delinquent has no reason to become prejudiced against such an appointment since the Enquiry Officer is a neutral person on the mission of fact finding. If the Enquiry Officer is a well-versed person in law, in legal knowledge or well-trained in legal practice, it is for the good of the whole enquiry since with all such knowledge, he would be able to better follow the procedures and appreciate the evidence so as to arrive at a valid and tangible conclusion in the enquiry finding. Therefore, the appointment of a legally trained person as the enquiry officer cannot be put as a defence by the delinquent for denial of an opportunity in refusing to permit him to seek the assistance of a legally trained person.
28. It is not the case of the petitioner that the Presenting Officer in the enquiry proceeding is a legally trained person nor is it established on the part of the delinquent/petitioner to the effect that he is a legally trained person. Therefore, the refusal to permit him to seek the assistance of a Lawyer will not in any manner either jeorpardise the proceeding or cause prejudice to the petitioner in the enquiry proceeding and therefore the petitioner’s case, only fails so far as this point of `lack of opportunity’ is concerned.
29. The second point based on which the petitioner forwarded his case before this Court is the failure on the part of the Management to adduce the best of evidence in spite of having the facilities to examine those witnesses as many as nine in number who have been examined as witnesses by the prosecution on the part of the case initiated by the Management, but not a single witness from among those examined before the criminal court has been examined in the domestic enquiry thus becoming liable to be accused of deliberate withholding of the best of evidence from being adduced before the Enquiry Officer. In support of his contention, the petitioner would rely on a judgment of the Apex Court wherein it is held that `where the material witnesses are not examined in the departmental proceedings, such enquiry held is vitiated being in violation of natural justice.’
30. So far as this allegation is concerned, if at all any failure is there on the part of the Management in this regard on account of non-examination of those witnesses who are already examined before the criminal Court, it would only weaken the case of the Management and not in any manner go to cause prejudice to the petitioner or hinder his chances in the enquiry proceedings. Even in such event, this point is pressed into service by the petitioner, it would only lead to inference to be drawn against the case of the Management to a limited extent and is not in any manner going to come to the rescue of the petitioner in strengthening his case in the enquiry proceeding nor on the other way round would cause irreparable damage to the case of the management either on point of irregularity or legal inconsistency or infirmity and so far as the judgment cited by the learned counsel for the petitioner for this point is concerned, in a case where the delinquent officer was charged of abusing his colleague in filthy language under the influence of liquor, the said complainant and the witness for the incident were not examined in the departmental proceedings, the Honourable Apex Court, on facts of the said case, held in the above manner that non-examination of material witnesses would vitiate the enquiry proceedings. But, in the case in hand, all the charges are based on the documentary evidence, which are self-explanatory and hence the findings of the Honourable Apex Court in the above cited judgment are not applicable to the facts of the present case and thus this point is also answered against the petitioner.
31. The last point relied on by the petitioner is that in spite of the criminal Court registering an acquittal judgment in his favour, on one and the same offence of charge, the authorities have conducted the enquiry and ultimately inflicted the punishment of dismissal from service and such departmental proceedings cannot be sustained on identical set of facts. For this proposition, the learned counsel for the petitioner would cite two judgments, the first one delivered in CAPT.M.PAUL ANTHONY vs. BHARAT GOLD MINES LIMITED AND ANOTHER and the other one delivered in SHAIK KASIM vs. THE SUPERINTENDENT OF POST OFFICES, CHENGLEPUT DIVISION .
32. So far as first of the above two judgments cited by the learned counsel for the petitioner is concerned, that judgment is based on an ex-parte departmental proceeding which has been branded unfair, unjust and rather oppressive to allow the findings recorded and the Enquiry Officer relying on those evidence of witnesses holding that the charges are proved when the criminal Court in the criminal case based on the same set of facts arrived at the opposite conclusion and held the accused not guilty of the offences charged. The facts based on which the above conclusions have been arrived at by the Honourable Apex Court are entirely different from the facts of the case in hand in the sense that after the acquittal of the petitioner by the criminal court, the charges framed against the petitioner were recast by the department by its charge memo. dated 12.9.1980 deleting the charge on facts with regard to the fixed deposit of the said Thangavel, regarding which alone the criminal case was registered. Thus, the charges framed in the domestic proceeding are entirely different and not one and the same as it is in the case of the above Apex Court judgment cited. Moreover, under exceptional circumstances, the Apex Court has gone upto the extent of saying that `the proceedings in a criminal case and departmental proceedings can go on simultaneously, except where departmental proceedings and criminal case are based on the same set of facts and the evidence in both the proceedings is common’ on the same charges framed and it is not the same in every other case as it is in the case in hand. Therefore, in all other cases, the general principle that is followed hitherto shall always hold good especially in view of the fact that the Magistrate sitting on a criminal case and the Enquiry Officer and the disciplinary authority concerned with the domestic enquiry are not only different entities holding different types of office and position but also the point for consideration in both these forums even in cases where same charge or set of facts alleged are entirely different. For instance, so far as the criminal proceeding is concerned, the point for consideration is `whether the case registered by the prosecution has been proved beyond reasonable doubts or not’ meaning thereby that the case registered by the prosecution need not be on true facts and circumstances of the occurrence, but still if to the standard of proof prescribed for appreciation of the criminal forum to answer the point for consideration, the prosecution is able to satisfy the Court, the case would end up in conviction. Likewise, even though a true case is projected by the prosecution on true set of facts and circumstances, if to the standards prescribed, proof is not made available, the case would end up in acquittal in which absolutely there is no bearing for an accused being held either guilty or not guilty. It is only relevant in a criminal case for a decision to be rendered ultimately on a overall consideration of all the facts and circumstances and in application of the same to the point for consideration, which is only proof beyond reasonable doubts and not to the effect of giving a judgment whether the accused is guilty or innocent.
33. On the contrary, so far as a domestic enquiry is concerned, it gives enormous powers to the Enquiry Officer and the disciplinary authority wherein the standard of proof is not at all ‘proof beyond reasonable doubts’ but it is ‘some evidence’ which is sufficient to find the delinquent guilty of the charge framed against him and the manner of appreciation also is entirely different. Therefore, in the common parlance it is not only undesirable to equate an acquittal judgment rendered by the criminal forum with that of a finding arrived at in the domestic enquiry wherein the delinquent is found guilty of the offence charged but also dangerous to advocate that the criminal finding should be either taken as the basis or adopted since both the proceedings are entirely different with different standards of proof and on different points for consideration with different procedures being followed. Therefore, the petitioner cannot at all be treated as the one falling in line with the judgment rendered by the Apex Court, which could be applied only in rarest of rare cases.
34. So far as the other judgment cited is concerned, the learned single Judge of this Court has remarked that `an Administrative Authority, in initiating disciplinary proceedings against a Government servant, is not bound to wait for the verdict of a criminal Court, but, where the criminal court has tried the concerned person and acquitted him, it would be improper and such a proceeding is liable to be quashed’. But, in the case in hand, it could be answered very easily that it is not a case which has been commenced after the criminal proceeding is over but even prior to the verdict of the criminal Court being rendered. Therefore, this judgment cannot also come to the rescue of the petitioner. Further more, it is learnt that if at all there is some delay, the petitioner is the cause for the same having gone to the civil Court and instituted civil proceedings against the enquiry initiated by the disciplinary authority which also ended in fiasco ultimately without any result being produced. Therefore, it is not the case where the disciplinary proceeding has been commenced after an acquittal is registered in the criminal case, so as to apply the norms of the judgment cited above.
35. Barring these, no other ground or reason for proper consideration by this Court has been either alleged or established on the part of the petitioner and this Court does not find any valid or tangible reason to cause its interference into the disciplinary proceeding held and concluded with the punishment of dismissal for the delinquencies that the petitioner has been charged in accordance with the rules and procedures concerned with such disciplinary proceedings. Therefore, this Court, since being a Court of judicial review, has no reason either to reappraise or reappreciate the evidence. No lack of opportunity in violation of the principles of natural justice could also be seen throughout the disciplinary proceeding and therefore this Court is left with no option but to dismiss the above writ petition.
In result,
(i) the above writ petition fails and the same is dismissed.
(ii) The order of the second respondent/disciplinary authority in DO/DGM(NR):DA:116/01/96, dated 24.10.1996 and the order of the third respondent/appellate authority in DO/GM(TRV):11 AA 97, dated 16.6.1997 are hereby confirmed.
However, in the circumstances of the case, there shall be no order as to costs.