JUDGMENT
[ENTITY] and [ENTITY], JJ.
1. By this petition, the petitioner has challenged the order dated 29.7.2005 (Annexure-17 to the writ petition) passed by the State Government whereby while working on the post of Executive Engineer in P.W.D. of the Government of U.P he has been dismissed from service. A further relief in the nature of Mandamus commanding the respondents to forthwith release the entire post retiral benefits of the petitioner including provident fund, gratuity, leave encashment, Group Insurance etc. and also to pay the pension to the petitioner permissible under law is also sought for.
2. The relief sought in the writ petition rests on allegation that the petitioner was appointed as Overseer in Public Works Department of Government of U.P. in the year 1971. At the time of submitting his application form he has mentioned his caste as "Mallah" under the impression that "Mallalh" and "Manjhi" communities arc the same However subsequently on the detection of the aforesaid mistake the petitioner obtained a fresh caste certificate from the Sub-Divisional Magistrate, [ENTITY] on 22.2.1971 in which his caste was denoted as "Manjhi". which is scheduled caste and in view of which the petitioner was given appointment on 25 6.1971 against the seat reserved for scheduled caste candidate. After his appointment as such he continued to work on the said post, which was subsequently redesignated as Junior Engineer and he was confirmed as a Junior Engineer on 14 1.1974. On 1.4.1978 the petitioner was awarded his selection grade on the post of Junior Engineer and thereafter promoted as Assistant Engineer on 27.1.1982. on a post reserved for scheduled caste candidates However on 10.8.1984 he was reverted from the post of Assistant Engineer to the post of Junior Engineer on the ground that he was not a person belonging to the scheduled caste. Being aggrieved, the petitioner filed [PRECEDENT] before the Lucknow Bench of this Court, which was however dismissed on 24.8.1984. Feeling aggrieved against which the petitioner filed Special Leave Petition before Supreme Court, the said S.L.P. was granted and converted into Civil Appeal and ultimately allowed on 29.7.1985. whereby the order of reversion dated 10.8.1984 was set aside on the ground that the order determining his caste was passed without giving him adequate opportunity of hearing with a direction that Collector, [ENTITY] shall hold fresh inquiry by affording opportunity of hearing to the petitioner, till then the petitioner shall be continued to his post but his future fate shall depend on the result of such inquiry
3. It is further alleged that in pursuance of the said direction the Sub-Divisional Officer. [ENTITY]. [ENTITY] submitted an inquiry report to District Collector, [ENTITY] on 25.8.85 specifically mentioning therein that the petitioner is "Manjhi" (Majhwar) by caste (Annexure-4 of the writ petition) and Majhwar caste is one of the scheduled caste. The aforesaid report was submitted after due verification, thereupon an endorsement was made by the Collector, [ENTITY] and fresh caste certificate was issued to the petitioner on 25.8.1985 as a person belonging to "Majhwar" community, which was actually scheduled caste. Not only this but the District Collector, [ENTITY] vide his letter dated 2.9.1985 has informed the Registrar General of Hon'ble Supreme Court that after holding inquiry relating to caste of petitioner, a caste certificate has been issued indicating his caste as "Majhwar" and another letter of the same effect was also sent to the State Government. It is further stated that in spite of fact that inquiry relating to the actual caste of the petitioner was duly held and a fresh caste certificate was issued to him but the petitioner was not permitted to discharge his duty as such he was compelled to move contempt petition before Hon'ble Supreme Court of India, which was ultimately dropped on 27.11.87 on compliance of the order passed by the Apex Court, consequently the petitioner was permitted to join his post of Assistant Engineer in the month of November, 1987 and was paid all arrears of his salary till the date While working on the post of Assistant Engineer. the petitioner was further promoted as Executive Engineer on 21.1.1995 along with several other persons. But while working on the said post of Executive Engineer vide order dated 3.6.2000 he was placed under suspension in contemplated disciplinary inquiry against him on the ground that he got promotion by filing false certificate of scheduled caste whereas he belongs to the backward class. Feeling aggrieved against which the petitioner filed writ petition before this Court and while entertaining the writ petition vide interim order dated 28.8.2000 this Court has stayed the order of suspension but the pending disciplinary inquiry against him was permitted to continue.
4. On 21.6.2000 a first information report in [CASE NUMBER] under [SECTION], [SECTION] and [SECTION] [ACT] was lodged against the petitioner at P.S. Hazratganj. Lucknow, alleging that the petitioner had obtained an appointment on the basis of false caste certificate as he was a person belonging to "Mallah" community, a backward caste but obtained appointment as a person belonging to scheduled caste The police on completion of investigation has submitted a final report on 21.2.2001 against which complainant's protest petition was rejected by the Chief Judicial Magistrate on 12.9.2001 and final report dated 21.2.2001 was accepted, The order of Chief Judicial Magistrate has attained the finality as the aforesaid order has not been challenged by the respondents at any stage whatsoever On 31 5.2003 a charge sheet in departmental disciplinary inquiry containing two charges namely; (i) that the petitioner had obtained appointment on the basis of false caste certificate; and (ii) that the petitioner had wrongly got his caste recorded as "Manjhi" in the Service Book instead of "Mallah", has been served upon the petitioner. The petitioner has submitted his reply to the aforesaid charge-sheet on 12.6.2003 (Annexure-13 of the writ petition). Inquiry Officer after holding disciplinary inquiry against the petitioner has submitted inquiry report on 8.10.2004. A copy of which was supplied to the petitioner by State Government along with a show cause notice dated 31.12.2004. The petitioner has replied the same on 12.3.2005. However the State Government vide impugned order dated 29.7.2005 has imposed penalty of dismissal two days earlier to the date of retirement of the petitioner, who was to retire on 31.7.2005 on attaining his age of superannuation, hence this petition.
5. A detail counter affidavit on behalf of State Government has been filed in the writ petition wherein the justification of impugned action have been given in quite detail The reference of which shall be given herein after at relevant place.
6. The thrust of submissions of the learned Counsel for petitioner in nutshell are that in given facts and circumstances of the case, once the order of reversion of petitioner from the post of Assistant Engineer to the post of Junior Engineer on the alleged ground of submission of false caste certificate was stayed by the Apex Court, directing the authorities to hold fresh inquiry regarding the actual caste of petitioner and in pursuant direction, on such inquiry a fresh caste certificate was issued to him holding that the petitioner belongs to "Manjhi" (Majhwar) caste, which is a scheduled caste and on the basis of which the petitioner has been permitted to work on aforesaid post of Assistant Engineer for about another period of 10 years and thereafter promoted on the next higher post of Executive Engineer on 21.1.1995 but on the basis of another subsequent ex-parte inquiry report with regard to the same charge i.e. in connection of caste certificate, the petitioner could not be subjected to the disciplinary inquiry by reopening the same issue again and accordingly he could not be dismissed from service on the same ground The impugned action is barred by principle of res-judicata. Besides this, learned Counsel for the petitioner has further urged that in given facts and circumstances of the case, the order passed by the Chief Judicial Magistrate accepting final report submitted by Police in criminal case registered against the petitioner with regard to alleged crime on the same set of facts has attained the finality between the parties, thus, the aforesaid finding of Chief Judicial Magistrate is binding upon the Disciplinary Authority and same cannot be reopened for further scrutiny in subsequent disciplinary inquiry. At any rate ex-parte inquiry report of Sub-Divisional Officer [ENTITY] dated 30.3.2000 and letter of District Magistrate, Chandauli dated 18.4.2000 cannot form legitimate and valid basis for holding disciplinary inquiry against the petitioner.
7. We have heard Sri [ENTITY], learned Senior Counsel assisted by Sri [ENTITY] for the petitioner and learned Standing Counsel for the respondents. Since the affidavits have been completely exchanged between the parties, therefore with the consent of the learned Counsel for the parties, we have heard the case for disposal on merits.
8. Having regards to the rival submissions and contentions inasmuch as pleadings of the parties the questions arise for consideration are that as to whether the decision of Hon'ble Apex Court dated 29.7.1985 rendered in the case of the petitioner would create any legal bar or embargo in holding another administrative inquiry in connection of caste certificate issued to the petitioner by Collector. [ENTITY] on 25.8 1985 at the instance of scheduled caste/tribes commission? And as to whether on the basis of subsequent inquiry report of Sub-Divisional Officer, [ENTITY], Chandauli dated 30.3.2000, holding the petitioner "[ENTITY] as one of the caste of backward class instead of "Manjhi" or "Majhwar" caste belonging to scheduled caste, the criminal prosecution of petitioner inasmuch as simultaneous or subsequent disciplinary inquiry against him are justified under law or not? And further as to whether acceptance of final report submitted by police in criminal case against the petitioner by Chief Judicial Magistrate vide order dated 12.9.2001 is binding upon the disciplinary inquiry held against the petitioner or not?'
9. Before adverting to the submissions of learned Counsel for the petitioner in connection of the aforesaid questions at very outset it is necessary to examine true intent and import of the decision rendered by Hon'ble Apex Court in case of petitioner For ready reference it is necessary to extract the decision of Hon'ble Apex Court dated 29.7.1985 in [CASE NUMBER] contained in Annexure-3 of the writ petition as under:
ORDER Special leave is granted.
Shri [ENTITY], learned Counsel for the State of Uttar Pradesh very fairly stated that the order determining the caste, to which the appellant belongs, had been passed without giving him adequate opportunity to state his defence. We, therefore, set aside the impugned order and direct the Collector of [ENTITY] to hold fresh enquiry after giving reasonable opportunity to the appellant to state his case at the enquiry. The appellant shall, however, continue to hold the same post which he is holding today until the enquiry is over and his further posting shall be governed by the decision taken at the conclusion of the enquiry. The enquiry shall be completed within two months.
The appeal is accordingly allowed. No costs.
10. From a bare perusal of decision of Hon'ble Apex Court, it is clear that Collector. [ENTITY] was directed to hold fresh inquiry regarding the actual caste of petitioner within two months by affording the petitioner opportunity to state his case at such inquiry. However, the petitioner was permitted to continue on his post until such inquiry is over but further posting of the petitioner was left to be dependent on the result of such inquiry. It seems that the petitioner's caste has not been judicially determined or adjudicated by the Hon'ble Apex Court. It is no doubt true that in pursuance of the aforesaid direction of Hon'ble Apex Court, a fresh inquiry pertaining to determination of caste of petitioner was held by Collector. [ENTITY], through Sub-Divisional Officer, [ENTITY], [ENTITY], who after holding inquiry has submitted a report to the Collector, [ENTITY] on 25.8.1985 who in turn on the said report has made endorsement on 28.8.1985 (Annexure-4 of the writ petition) and a fresh caste certificate was issued to the petitioner on 25 8.1985 showing him as person belonging to "Majhwar" caste, which is in the category of Scheduled caste (Annexure-5 of the writ petition). Immediately thereafter the District Magistrate, [ENTITY] communicated the result of aforesaid inquiry to the Registrar of Hon'ble Apex Court and State Government vide letter dated 2.9.1985 (Annexures-6 and 7 of the writ petition). These facts were specifically asserted in para 12 to 17 of the writ petition.
11. The aforesaid facts have been replied by State Government in para 11 of its counter affidavit as under:
11. That the contents of paras 12 to 17 of the writ petition arc not admitted and hence denied. It is respectfully submitted that there had been contradictory report from the Sub-Divisional Magistrate, [ENTITY], [ENTITY] in regard to the actual caste of the petitioner in some of the report the petitioner was shown as belonging to Manjhi or Majhwar caste which comes within the category of scheduled caste whereas in some of the reports the petitioner was shown as belonging to Mallah caste which comes within the purview of backward classes. Moreover there had been other complaints that the petitioner does not belong to the Scheduled caste category, Scheduled caste and Scheduled Tribes commission also directed for holding enquiry to ascertain the actual caste of the petitioner. In that view of the matter Up-Ziladhikari Chandauli was directed to submit a fresh report in regard to the actual caste of the petitioner after giving full opportunity of hearing to the petitioner on 30.3.2000 submitted his report to the District Magistrate, Chandauli specifically indicating therein that matter was enquired into in the village Amarsipur where Sri [ENTITY] aged about 65 years, who had also been the Gram Pradhan of the village from 1972 to 1982 categorically stated that the petitioner belongs to Mallah caste which is a backward class community and also inspected the revenue record of 1347 Fasli to 1349 Fasli wherein the name of Sri [ENTITY] (father of the petitioner) son of [ENTITY] is recorded as belonging to Mallah caste. The aforesaid report of [ENTITY] dated 30.3.2000 was sent to the State Government Public Works Department Anubhag-5 alongwith letter of the District Magistrate, Chandauli dated 18.4.2000. Photostat copy of the District Magistrate, Chadauli dated 18.4.2000 alongwith report of Up-Ziladhikari [ENTITY] District Chandauli dated 30.3.2000 is being filed herewith and marked as Annexure COUNTER AFFIDAVIT-I to this counter affidavit. From the aforesaid report of the [ENTITY] it is evident that the petitioner belongs to Mallah caste which comes within the purview of backward class and the petitioner does not belong to scheduled caste category.
12. From bare perusal of averments contained in para 11 of the counter affidavit it is clear that factum of holding inquiry by collector and issue of fresh caste certificate to the petitioner showing his caste as "Majhwar" belonging to the scheduled caste on 25.8.1985 has not been specifically denied and disputed by the respondents while making vague denial of the facts stated in paragraphs 12 to 17 of the writ petition. However instead thereof it has been stated that, there are contradictory report of Sub-Divisional Officer, [ENTITY], in respect of caste of the petitioner. In some reports the petitioner was shown as "Manjhi" or "Majhwar" caste belonging to the "scheduled caste" whereas in some other report, he was shown as "[ENTITY] belonging to the "backward class", but the aforesaid facts of contradictory report of Sub-Divisional Officer [ENTITY] seems to have come on record in subsequent inquiry appears to have been held by Sub-Divisional Officer, [ENTITY] on 30.3.2000 in pursuance of direction given by the State Government on 5.1.2000 in pursuant direction of U.P. Scheduled Caste/Scheduled Tribes Commission on receipt of several complaints from the social organizations of scheduled caste and scheduled tribes against actual caste of the petitioner and against the earlier caste certificate issued to him.
13. Now at this juncture it is necessary to point out that what is "forgery", whether "forgery" is a "fraud" and whether in instant case "forgery" or "fraud" has been proved in obtaining the aforesaid caste certificates on 22.2.1971 and 25.8. 1985 are questions arise for consideration. In this connection it is necessary to point out that identical questions have received consideration of Hon'ble Apex Court in [PRECEDENT] wherein the Hon'ble Apex Court has considered the true import and meaning of expression "forgery" and "fraud" in para 24 to 32 of the decision as under:
24. We may now turn to the next and allied questions; what is forgery, whether forgery is a fraud and whether in the instant case, forgery and fraud are proved?
25. Forgery has its origin in the French word "Farger", which signifies:
"to frame or fashion a thing as the smith doth his work upon the anvil. And it is used in our law for the fraudulent making and publishing of false writings to the prejudice of another man's right (Terms de la Ley) ([ENTITY]'s Judicial Dictionary, Fifth Edition Vol. 2).
26. In Webster Comprehensive Dictionary. International Education, "Forgery" is defined as:
The act of falsely making or materially altering with intent to defraud, any writing which, if genuine, might be of legal efficacy or the foundation of a legal liability.
27. This Definition was adopted in [PRECEDENT]. In another case, namely, [PRECEDENT], it was laid down that forgery is the false making of any written instrument for the purpose of fraud or deceit. This decision appears to be based on the meaning of forgery as set out in [ENTITY]'s Law dictionary.
28. From the above, it would be seen that fraud is an essential ingredient of forgery.
29. Forgery under the [ACT] is an offence, which has been defined in [SECTION] while [SECTION] deals with the making of a false document [SECTION] prescribes punishment for forgery. "Forged document" is defined in [SECTION] while [SECTION] deals with the crime of using as genuine, the forged document.
30. Forgery and Fraud are essentially matters of evidence, which could he proved as a fact by direct evidence or by inferences drawn from proved facts.
31. The Privy Council in [PRECEDENT], land down as under:
Charges of fraud and collusion like those contained in the plaint in this case must, no doubt, he proved by those who make them proved by established facts or inferences legitimately drawn from those facts taken together as a whole. Suspicions and surmises and conjecture are not permissible substitutes for those facts or those inferences, hut that by no means requires that every puzzling artifice or contrivance resorted to by one accused of fraud must necessarily he completely untravelled and cleared up and made plain before a verdict can be properly found against him. If this were not so, many a clever and dexterous knave would escape.
32. The above principle will apply not only to courts of law but also to statutory tribunals which, like the Commission, are conferred power to record evidence by applying certain provisions of the [ACT] including the power to enforce attendance of the witnesses a d are also given the power to receive evidence on affidavits. The Commissions under the [ACT] decides the dispute by following the procedure indicated in [SECTION] read with [SECTION] of the Act.
14. Applying the aforesaid principle upon the facts of the case it is to be held that the petitioner can neither be said to have prepared or forged his caste certificate dated 25.8.1985 showing his caste as "Majhwar or "Manjhi" belonging to the scheduled caste nor it can be said that he has forged his earlier caste certificate issued on 22.2.1971 nor any forgery or fraud has been proved in obtaining and submitting such certificate, therefore, the contention and assertion of learned standing counsel in this regard cannot be accepted. However, at the most in view of subsequent inquiry report dated 30.3.2000 only this much can be held that there are two contradictory reports on the question of actual caste of the petitioner as also indicated and admitted by the respondents in para 11 of their counter affidavit filed, quoted herein before, but at the same time it cannot be held that which one is correct and which one is erroneous.
15. Besides this it is necessary to point out that it is not the case of respondents that the aforesaid certificates were never issued by Collector, [ENTITY] and were not genuine certificates. Contrary thereto as revealed from averments contained in various paragraphs of counter affidavit, the case of respondents is that the petitioner has fraudulently obtained the aforesaid certificate by misrepresenting and playing fraud upon the authorities and submitted false and fictitious caste certificate while entering into service, therefore, in order to examine the contention and assertion of respondents it is necessary to examine subsequent report of Sub-Divisional Officer, [ENTITY], Chandauli dated 30.3.2000, contained in Annexure-18 of the writ petition as well as Annexure C.A.-2 filed by respondents along with the letter of Collector, Chandauli dated 18.4.2000 sent to the Government of U.P A bare perusal of which it transpires that there is no indication at all that the earlier report of Sub-Divisional Officer, [ENTITY] dated 25.8.1985 was obtained either by misrepresentation or by playing fraud upon the authorities or it was any where held as false or fictitious, or not genuine, therefore, the assertion and contention of the respondents that the petitioner has earlier obtained caste certificate fraudulently by playing fraud or misrepresenting the authorities is without any factual basis and wholly misconceived and misplaced, thus has to be rejected and we are also of the considered opinion that criminal prosecution of the petitioner based on aforesaid subsequent report of Sub-Divisional Officer, [ENTITY], Chandauli dated 30.3.2000 was not justified under law in given facts and circumstances of the case.
16. Now coming to the question as to whether judgment and order passed by Hon'ble Apex Court in S.L.P. and contempt petition filed by the petitioner would operate as res-judicata between the parties and subsequent action of the respondent would be barred thereby? In this connection the submission of the learned Counsel for the petitioner is that judgment and order passed by Hon'ble Apex Court has attained finality between the parties and same cannot be reopened for further scrutiny as the same is barred by principle of res-judicata between the parties. In support of said submission, he has also placed reliance upon the decision of Hon'ble Apex Court rendered in [PRECEDENT]. and the [PRECEDENT]. .
17. In this connection it is necessary to examine the tenor of the aforesaid judgment and order passed by the Hon'ble Apex Court on 29.7.1985 in case of the petitioner, A bare perusal of which it is clear that Hon'ble Apex Court did not pronounce its verdict on the issue of actual caste of the petitioner by adjudicating the merit of the same rather only direction has been given to the Collector, [ENTITY] to determine the actual caste of the petitioner by holding fresh inquiry and by affording opportunity of hearing to the petitioner. Till such inquiry is concluded the petitioner was permitted to continue on the post of Asstt. Engineer from which he was reverted at moment but with regard to further continuance it was left to be dependent on the result of such inquiry to be held by the Collector.
18. Similarly the order dated 27.11.1987 passed by Hon'ble Apex Court in Contempt Petition of the petitioner has been quoted in para 18 of the writ petition as under;
Mr. [ENTITY], learned Counsel for the petitioner states that the proceedings will be dropped since the order of this Court has been complied with. The respondents have also expressed their unqualified apology for not complying the court's order till now. The proceedings are dropped.
19. From the perusal of the aforesaid judgment and order and undisputed assertion made in para 18 and 19 of the writ petition, it seems that in spite of fresh caste certificate issued to the petitioner holding him "Majhwar caste", belonging to the "scheduled caste", the respondents had not permitted the petitioner to continue on his post of Assistant Engineer but during the pendency of contempt petition respondents have permitted the petitioner to continue on the post of Assistant engineer, and on statement made by Sri [ENTITY] learned Counsel for the petitioner, the contempt proceeding was dropped by Hon'ble Apex Court. In view of these facts and circumstances of the case, it cannot be held that by this judgment and order the Hon'ble Apex Court has adjudicated the case of petitioner on merit, so far as issue relating to his actual caste is concern, therefore, we are of the considered opinion that in both the decisions Hon'ble Apex Court has never adjudicated the issue of actual caste of petitioner on merit by ownself nor any other court or tribunal has adjudicated such claim of the petitioner on merits nor any such report of any administrative functionary has been made part and parcel of the decision of Hon'ble Apex Court, therefore the question of applicability of principle of res-judicata, on account of attainment of alleged finality of adjudication by administrative authorities does not arise.
20. Moreover, it is not a case similar to which, wherein Hon'ble Apex Court could be said to have remitted the aforesaid issue for adjudication before any subordinate court or tribunal or authority and on such adjudication made by such court or tribunal or authority, Hon'ble Apex Court made it part of its judgment or asked the sub-ordinate court, tribunal or authority, for furnishing any report to the Hon'ble Apex Court, and thereupon on that basis a final judgment was pronounced by the Hon'ble Apex Court. Therefore in view of such distinct and distinguishable feature of the case, the analogy of judgment and order passed by the courts or Tribunals cannot be drawn in respect of adjudication made by administrative functionary on direction made by the courts. Thus we are of the considered opinion that the adjudication made by administrative functionaries in pursuance of direction of Hon'ble Apex Court can neither be treated to be adjudication made by the Hon'ble Apex Court nor at par with the decision of Hon'ble Apex Court, Therefore, the decision of Hon'ble Apex Court rendered in case of Supreme Court Employees Welfare Association Case (supra) and Direct Recruit Engineering Class II Officer's Association case (supra) which deals with the earlier adjudication on merit by the court are quite distinguishable on facts and have no application with the case of petitioner.
21. Now coming to the next incidental question as to whether aforesaid decision of Hon'ble Apex court creates any legal bar or embargo in taking subsequent action against the petitioner or not? In this connection it is necessary to point out after the aforesaid decision of Hon'ble Apex Court dated 29.7.1985 and 27.11.1987 the petitioner was continuously permitted to work on the post of Assistant Engineer and also promoted on the post of Executive Engineer on 21.1.1995, thus after lapse of about 15 years, at the instance of U.P. Scheduled Caste and Scheduled Tribes Commission an inquiry was directed to be held in connection of caste of petitioner. In pursuance of which Government has further directed the District Magistrate, Chadauli on 5.1.2000 to hold fresh inquiry, in pursuance of which subsequent inquiry was held by Sub-Divisional Officer [ENTITY], who submitted his report on 30.3.2000 which in turn submitted by District Magistrate to State Government vide letter dated 18.4.2000. The learned Counsel for the petitioner could neither persuade us, as to how this subsequent administrative inquiry is barred under any law. The earlier inquiries held in this regard were also of administrative in nature, in as much as neither the power of Scheduled Caste/Scheduled Tribes Commission directing such inquiry nor the outcome of inquiry has been challenged nor any relief against the same is claimed nor it has been argued so as to persuade us that such subsequent administrative inquiry is either barred by doctrine of waiver, acquiescence or estoppel, therefore, we are of the considered opinion that such inquiry was not barred under law.
22. The submission of learned Counsel for the petitioner that the subsequent administrative inquiry was ex-parte and was held without affording opportunity of hearing to the petitioner is also not acceptable for the simple reason that in spite of intimation and knowledge of such inquiry the petitioner did not choose to be personally present in inquiry rather he has sent the necessary papers in his defence as desired by him through special messenger and same were considered by the Sub-Divisional Officer, thus the aforesaid inquiry held against the petitioner cannot be found faulty on this score also and it cannot be held that while holding such administrative inquiry the principle of natural justice was not observed.
23. Now coming to the next question as to whether the decision of Chief Judicial Magistrate dated 12.9.2001 accepting the final report of police dated 21.2.2001 by rejecting the protest petition of respondents has attained finality between the parties as contended by learned Counsel of petitioner and is binding upon subsequent disciplinary inquiry held against the petitioner grounded on same set of facts on the same charges? In this connection it is pointed out that although the Chief Judicial Magistrate has accepted the final report submitted by police for want of material evidence to support the prosecution case against the petitioner for his own reasons but since the aforesaid order was not challenged by the respondents, therefore, attained finality between the parties but the next question arises for consideration is that what would be its legal effect and impact upon the aforesaid disciplinary proceeding? But before we proceed to deal with the aforesaid question it is necessary to examine the distinction with regard to the nature, purpose, scope and standard of proof in both the disciplinary proceedings and criminal trial.
24. In [PRECEDENT]. the Hon'ble Apex Court in para 15 of the decision has held as under: -
A disciplinary proceeding is not a criminal trial. The standard of proof required is that of preponderance of probability and not proof beyond reasonable doubt. If the inference that [ENTITY] was a person likely to have official dealings with the respondent was one, which a reasonable person would draw from the proved facts of the case, the High Court cannot sit as a court of appeal over a decision based on it. Where there are some relevant materials which the authority has accepted and which materials may reasonably support the conclusion that the officer is guilty, if is not the function of the High Court exercising its jurisdiction under [SECTION] 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 convassed before the High Court.
25. In [PRECEDENT] the Hon'ble Apex Court has held that it is well settled that in a domestic enquiry the strict and sophisticated rule of evidence under the [ACT] may not apply. All materials which are logically probative for a prudent mind are permissible. There is no allergy to hearsay evidence provided it has reasonable nexus and credibility. For ready reference relevant portion of para 4 of the decision is quoted below:
4. It is well settled that in a domestic enquiry the strict and sophisticated rules of evidence under the [ACT] may not apply. All materials which are logically probative for a prudent mind are permissible. There is no allergy to hearsay evidence provided it has reasonable nexus and credibility. 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 [ACT]. For this proposition it is not necessary to cite decisions nor textbooks, 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, fair play is the 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.
26. In [PRECEDENT]. . While taking note of earlier decisions rendered in [ENTITY]'s case in para 16 of the decision Hon'ble Apex Court has held as under:
16. It is fairly well settled that the approach and objective in criminal proceedings and the disciplinary proceedings are altogether distinct and different. In the disciplinary proceeding the preliminary question is whether the employee is guilty of such conduct as would merit action against him whereas in criminal proceedings the question is whether the offences registered against him 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 are conceptually different.
[See State of Rajasthan v. [ENTITY] and Ors. ]. In case of disciplinary enquiry the technical rules of evidence have no application, The doctrine of proof beyond doubt has no application. Preponderance of probabilities and some material on record are necessary to arrive at the conclusion whether or not the delinquent has committed misconduct.
27. At this juncture it would also be useful to refer some decisions, wherein the legal effect and impact of acquittal in criminal trial grounded on identical or same set of facts, upon which the disciplinary inquiry is based, have been specifically dealt with by Hon'ble Apex Court hereinafter.
28. In [PRECEDENT], the question in controversy was whether or not the departmental enquiry pending against employee involved in a criminal case should be continued even after his acquittal in criminal case? The question was answered in para 6 of the judgment as under :
(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 a 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 discretion in any way fettered.
29. In [PRECEDENT]. , the appellant of the aforesaid case while working as compositor in the Government of India Printing Press was charged for the offence under [SECTION] [ACT] pending trial, he was kept under suspension. After his acquittal he was reinstated, but the respondents did not grant the consequential benefits to him. In the aforesaid facts and situation of the case, the question in controversy before the Hon'ble Apex Court was whether a government servant would be entitled to all the consequential benefits including the back wages. If during the period of his suspension he was acquitted from the pending criminal charge on the basis on which he was placed under suspension and what would be further course of action if alleged misconduct is a foundation of prosecution, as to whether the disciplinary authority may inquire into the matter and take appropriate action thereon or not? In para 4 of the judgment the apex court has dealt with the issue in detail, For ready reference the relevant extract of para 4 of the judgment is reproduced as under :
4 The purpose of prosecution of a public servant is to maintain discipline in service, integrity, honesty and truthful conduct in performance of public duty or for modulation of his conduct to further the efficiency in public service. Though legal evidence may be insufficient to bring home the guilt beyond doubt or fool proof. The act of reinstatement sends ripples among the people in the office locality and sow (sends) wrong signals for degeneration of morality, integrity and rightful conduct and efficient performance of public duty. The constitutional animation of public faith and credit given to public acts would be under mind. Every act or the conduct of a public servant should be to effectuate the public purpose and constitutional objective. Public servant renders himself accountable to the public. The very cause for suspension of the petitioner and taking punitive action against him was his conduct that led to the prosecution of him for the offences under the [ACT]. If the conduct alleged is the foundation for prosecution, though it may end in acquittal on appreciation or lack of sufficient evidence, the question emerges; whether the Government servant prosecuted for commission of defalcation of public funds and fabrication of the records, though culminated into acquittal, is entitled to be reinstated with consequential benefits? In our considered view this grant of consequential benefits with all back wages etc. cannot be as a matter of course. We think that it would he deleterious to the maintenance of the discipline if a person suspended on valid consideration is given full back wages as a matter of course, on his acquittal. Two courses are open to the disciplinary authority, viz, it may enquire into misconduct unless, the self-same conduct was subject of charge and on trial the acquittal was recorded on a positive finding that the accused did not commit the offence at all; but acquittal is not on benefit of doubt given. Appropriate action may be taken thereon.
30. In [PRECEDENT] wherein the charge of bigamy against the government employee for the purpose of misconduct under relevant service Rule was under consideration. The respondent, a police constable was prosecuted for having contracted second marriage. He was discharged for want of evidence. A departmental enquiry was instituted against him for having contracted second marriage for which he was suspended He approached the Karnataka Administrative Tribunal against the order of suspension and for stopping the enquiry against him on the ground that criminal court had discharged him of the offence of bigamy. Tribunal accepted the stand of respondent quashed the departmental proceeding and lifted the suspension. In appeal filed by State before the Hon'ble Apex Court their lordship of Supreme Court has held as under :
There is a string of judgments of this Court whereunder strict proof of solemnization of the second marriage, with due observance of rituals and ceremonies, has been insisted upon. The prosecution evidence in the criminal complaint may have fallen short of those standards but that does not mean that the State was in any way debarred from invoking [SECTION] of the [ACT], which forbids a Government servant to marry a second time without the permission of the Government. But here the respondent being a Hindu, could never have been granted permission by the Government to marry a second lime because of his personal law forbidding such marriage. It was thus beyond the ken of the Tribunal to have scuttled the departmental proceedings against the respondent on the footing that such question of bigamy should normally not be, taken up for decision in departmental enquiries, as the decisions (competent courts tending to be decisions in rem would stand at the highest pedestal. There was a clear fallacy in such view because for purposes of [SECTION]. such strict standards, as would warrant a conviction for bigam under [SECTION] [ACT] may not, to begin with, be necessary.
31. On a conspectus of whole issue, conclusions, which are deducible from the provisions of [SECTION] of the [ACT] and the relevant service rule and various decisions of the Hon'ble Apex Court, are as under:
(i) Rule to prove the offence in criminal trial beyond reasonable doubt is not applicable in proving misconduct in disciplinary proceedings, as the strict rule of evidence is also not applicable in disciplinary proceedings under domestic inquiry. It is also well known that the domestic tribunal is not bound by several rules that are binding on appreciation of evidence by a criminal Court. As for instance, a criminal Court would not accept the evidence of an accomplice, unless corroborated in material particulars, while the departmental inquiry may base its finding on the uncorroborated testimony of the accomplice.
(ii) The nature and scope of a criminal trial are very different from those of departmental and disciplinary proceedings. The standard of proof in bom the proceedings are also different altogether.
(iii) The dominant purpose of a criminal proceeding is to achieve the protection of public while that in the disciplinary proceeding is purity and efficiency of public service, therefore the field of operation of the two proceedings are quite different and independent.
(iv) The object of holding a departmental inquiry is entirely a different i.e. whether the delinquent is guilty of any misconduct or delinquency and the mere fact that the inquiry officer may reach a conclusion different from that recorded by the criminal court does not abridge his right. There is no constitutional, statutory or legal bar on the basis of which it can be held that a departmental inquiry is bad in view of the order of acquittal recorded by a criminal court.
(v) Findings of Court in a criminal trial against a public servant can not always be regarded as binding in domestic inquiry against that public servant in proving misconduct against him. It is quite possible that the evidence on which criminal court has proceeded may not be the same as the material before the departmental tribunal and it is possible that while the case in the criminal court may fail for want of evidence there may be sufficient evidence forthcoming in the departmental proceeding. The proceeding in the criminal court may also fail for want of sanction or other technical ground while no such infirmity may vitiate the departmental proceeding.
(vi) If the trial of criminal charge results in conviction, the disciplinary authorities are bound to follow and accept it and take appropriate action against such Government servant as envisaged under [SECTION] of the [ACT] and the relevant service rules, without holding any full-fledged disciplinary inquiry against such Government servant as settled by [ACT] Bench of Hon'ble Apex Court in [PRECEDENT] .
(vii) But in cases of acquittal the disciplinary proceeding may follow where the acquittal is other than clean and honourable acquittal on merit wherein the court dealing; with criminal case has exonerated the accused by recording positive finding that he did not commit the alleged offence and the prosecution case found totally false and completely thrown out against him but where the trial in criminal charge is ended in acquittal on appreciation or lack of sufficient evidence or on account of benefit of doubt or on any other technical ground like lack of sanction for prosecution, the authority may take appropriate action after holding disciplinary inquiry in respect of misconduct against the delinquent employee even if grounded on same facts.
32. Thus from the aforesaid discussion it is clear that if the trial on criminal charge results in acquittal the disciplinary proceeding may follow where the acquittal is other than clean and honourable, on merit, wherein the court dealing with criminal case, has exonerated the accused by recording positive findings that accused did not commit the alleged offence and prosecution case was found totally false and completely thrown out by the court, but where the acquittal is based on appreciation of evidence by entertaining the benefits of doubt against prosecution case or lack of sufficient evidence or on any other technical grounds like lack of sanction for prosecution or other similar reasons, the authority may take appropriate action after holding disciplinary inquiry in respect of misconduct against delinquent employee even if grounded on same facts but the case in hand is totally on different footing. It is neither a case of clean and honourable acquittal on merits nor acquittal based on appreciation of evidence by entertaining the benefits of doubt nor lack of sufficient evidence nor based on any other technical ground like lack of sanction for prosecution, rather it is a stage where cognizance has not even been taken by the court after completion of investigation of offence/crime wherein the police has submitted final report against the petitioner, before the Magistrate concerned who has accepted it. Had it not been accepted by tile Chief Judicial Magistrate, he would have directed for further investigation or on being challenged at higher forum available under law, such direction could be given by superior court but since no such steps were taken to challenge the order of Chief Judicial Magistrate as yet, even then in our considered opinion the case in hand cannot be treated to be at par with or equal footing with clean and honourable acquittal on merits, thus findings and decision of Chief Judicial Magistrate cannot be held to be binding upon the disciplinary authority, therefore, the contention of learned Counsel for the petitioner in this regard is wholly misplaced and has to be rejected.
33. Now coming to the findings recorded earlier in preceding part of the judgment again since we have held that subsequent report of Sub-Divisional Officer, [ENTITY], Chandauli dated 30.3.2000 and letter of Collector, Chandauli dated 18.4,2000 in connection of actual caste of the petitioner, is only in contradictory in terms of earlier report dated 25.8.1985, therefore, a further question arises for consideration as to whether it could furnish sufficient cause or grounds to hold disciplinary inquiry against the petitioner or not? and/or as to whether the disciplinary proceeding could be halted awaiting the decision of competent court of law on the question of actual caste of the petitioner or not? In this connection it is necessary to point out that in aforesaid subsequent administrative inquiry it has been held that petitioner is not "Manjhi" or "Majhwar" caste belonging to scheduled caste. Contrary to it he belongs to "Mallah" community which is a caste in backward class, therefore so long as such finding remains intact, the petitioner's initial appointment and subsequent promotions based on scheduled caste certificate cannot be said to be legal and valid under law, thus in our considered opinion, no fault can be found in holding such disciplinary inquiry against the petitioner on the basis of aforesaid materials and other materials available with the Disciplinary Authority. Besides the learned Counsel for the petitioner could not point out anything convincing to us whereby subsequent administrative inquiry held against the petitioner can be held to be barred under any law or otherwise vitiated under law and consequent disciplinary inquiry vitiates thereby.
34. Further, the question as to whether the petitioner belongs to "Manjhi" or "Majhwar" caste which is "scheduled caste" or belongs to "[ENTITY], which is one of the caste in backward class, cannot be decided by this Court for simple reason that decision involves appreciation of evidence before this Court as a court of first instance which is not permissible under law in the process of judicial review of the decision under challenge. At the same time in our considered opinion the disciplinary inquiry could not be halted till the aforesaid issue is decided by the competent civil court having jurisdiction to try the issue. In view of law laid down by Hon'ble Apex Court referred herein before and particularly in [PRECEDENT] (supra), the Disciplinary Authority was competent enough to decide the matter under relevant service rules on the basis of material available with it in spite of fact that criminal prosecution launched against the petitioner has failed on account of fact that police has submitted final report against him and Chief Judicial Magistrate has accepted it and no further steps were taken to challenge the order passed by C.J.M., Lucknow dated 12.9.2001. The findings of Inquiry Officer and Disciplinary Authority could also not be successfully assailed by learned Counsel for the petitioner under settled parameters of judicial review. Therefore, no fault can be found on that score, with regard to the conclusions drawn by Disciplinary Authority. The writ petition is devoid of merits, at the moment the petitioner is not entitled for any relief claimed in the writ petition, thus no interference is called for under [SECTION] of the [ACT] in the order impugned in the writ petition.
35. However, the petitioner is at liberty to approach competent civil court and seek declaration regarding his actual caste and also seek other consequential relief If the petitioner succeeds in such suit proceedings and held to be "Majhwar" or "Manjhi" caste belonging to the scheduled caste, he will be entitled for his post retiral benefits and pension, by ignoring the order of his dismissal from service while treating him in continuous service till attaining his age of superannuation.
36. With the aforesaid observations, the writ petition stands disposed of finally.
37. There shall be no order as to costs.