JUDGMENT [ENTITY], J.
1. Appellant was Dean of Students Welfare in G.B. Pant University of Agriculture and Technology, Pant Nagar, District Nainital (hereinafter referred to as the University). Disciplinary proceedings were initiated against him and a charge-sheet dated October 1, 1986, containing seven charges, was served on him. Enquiry Officer held charges No. 1, 2, 3, 4 and 6 as proved. Charge No.5 was held to be partly proved and regarding charge No. 7 benefit of doubt was given to the appellant. On the basis of the enquiry report, he was dismissed from service by order dated December 28,1988. Being aggrieved the appellant challenged the order of dismissal by means of [CASE NUMBER], which was allowed by a Division Bench of this Court and the order of Board of Management of the University, dismissing him from service, was quashed and the matter was sent back to the Board of Management, to consider it afresh after giving copy of the Enquiry report and opportunity of being heard to him.
2. Board of Management passed a fresh order dated May 14, 1991 terminating the service of the appellant. However, he was allowed post retirement benefits in accordance with the statutes of the university. The appellant challenged the above order of termination of his service, by means of a writ petition, which has been dismissed by learned Single Judge on July 8, 1992. Hence this appeal.
3. Learned counsel for the appellant has made three submissions, in support of the appeal, viz. (i) Decision of the Division Bench of this Court in [CASE NUMBER], tiled by the 2 appellant against the first order of dismissal from service operates as res judicata and it was not open to the Board of Management to act contrary to it; (ii) There is no finding of bad motive, in the absence of which the appellant 3 cannot be said to be guilty of misconduct within the meaning of the statutes, and (iii) Learned Single Judge was bound by the decision of Division bench, given in earlier writ petition of the appellant and it was not open to take a view contrary to what has been laid down by Division Bench in earlier case. Learned Counsel for the University had disputed the above submissions.
4. While allowing the earlier [CASE NUMBER], filed by the appellant, against the order of his dismissal from service, Division Bench of this Court held that none of the charges have been proved against the appellant and punishment of dismissal awarded to him was not commensurate with the charges found against him. Relevant extract from the judgment of Division Bench is as under:
On a perusal of the enquiry report, consequently, we find that practically none of the charges has been proved against the petitioner. Only in charge No. 6 it has been said that the petitioner had disregarded the order of Vice Chancellor. All the charges mainly relate to purchase of firewood, refrigerators, locks and brasswares for the purposes of the students because the petitioner was the Dean of Students' Welfare.
XXX XXX XXXX As already observed above, none of the charges has been unequivocally established against the petitioner. It has also not been established that the petitioner has got some personal gain out or any of the acts done while functioning as Dean of the Students' Welfare.
In view of the report and in view of the nature of the charges levelled against the petitioner, we are clearly of the opinion that it is not a case where the punishment of dismissal should have been awarded to the petitioner. It is not at all commensurate with the charges found against the petitioner.
After having held so, the writ petition of the appellant was allowed and the order dated December 21, 1988 of the Board of Management, dismissing the appellant from service, was quashed and the matter was referred back to the Board of Management, to consider the case of the appellant afresh, after giving him the copy of the enquiry report and opportunity of hearing. It was further directed that the appellant shall be reinstated forthwith and will be paid his arrears of salary within the period specified therein.
5. Inspite of the finding recorded by this Court in earlier writ petition of the appellant, the Board of Management held him guilty of the same charges and consequently he was removed from service, although neither any fresh enquiry was held by the Enquiry Officer nor any new evidence was produced. Only thing done was that the appellant was given copy of the Enquiry report, in reply to which he submitted his explanation. The Board of Management, as such, was not justified to disregard the findings recorded by Division Bench of this Court in earlier writ petition, filed by the appellant. The respondents not only disregarded the finding recorded by this Court in its judgment while deciding the earlier writ petition of the appellant, but has also criticised and condemned the judgment, as is clear from the agenda/note and Annexure-A appended thereto, which was placed before the Board, on the basis of which it has passed the order, relevant extract from which is reproduced below.:
The Hon'ble Court has held that the charge is not unequivocally established.
In this connection attention is invited to various Court judgments regarding proof required in department proceedings:
(i) The rules followed in criminal trials that an offence is not established unless proved by evidence beyond reasonable doubt to the satisfaction of the court is not applicable to department proceedings.
[PRECEDENT] [PRECEDENT] and [PRECEDENT].
(ii) A disciplinary proceeding is not a criminal trial. The standard of proof required here is that of PREPONDERENCE OF PROBABILITY AND NOT PROOF BEYOND REASONABLE DOUBT.
[PRECEDENT] [PRECEDENT].
Going by the aforementioned judgments of 4 the various courts the conclusions drawn by the Inquiry Officer and the Disciplinary Authority in the instant case are fully warranted and hence the charge can be held to be proved.
As regards the finding of this Court regarding charge No. 4, judgment of this Court was deliberate wickedness or malevolence. Leaving aside the classic example of the sentry who sleeps at his post and allows the enemy to slip through, there are other more familiar instances of which a railway cabin man signals in a train on the same track where there is a stationary, train causing head long collision; a nurse giving intravenous injection which ought to be given intra muscular causing instantaneous death; pilot overlooking an instrument showing snag in the engine and the aircraft crashes causing heavy loss of life.
[PRECEDENT] VIEW OF COURTS ON MISCONDUCT It would also be relevant to cite another judgment where misconduct has been explained. In [PRECEDENT], it was held by the Hon'ble Supreme Court that if a servant conducts himself in a way inconsistent with the faithful discharge of his duty in the service, it is misconduct which justifies immediate dismissal. It is sufficient if it is misconduct which is prejudicial or is likely to be prejudicial to the interests or to the reputation of the master.
It may not be out of place to mention here that in the case of [PRECEDENT] the Gujarat High Court, without being exhaustive, inter alia listed some acts of serious misconduct as given below:
(i) where the act or conduct of the servant is prejudicial or likely to be prejudicial to the interest of the master or to the reputation of the master;
(ii) where the act or conduct of the servant is inconsistent or incompatible with the due or peaceful discharge of his duty to his master;
(iii) where the act or conduct of the servant makes it unsafe for the employer to retain him in service;
(iv) where the act or conduct of the employee is such that the master cannot rely on the faithfulness of his employee;
(v) where the servant is habitually negligent in respect of the duties for which he is engaged; and
(vi) where the neglect of the servant, though isolated, tends to cause serious consequences.
After having said as above, the law laid down by this Court regarding standard of proof was criticised, and what should be proper standard of proof, was stated. This is clear from the following passage of the same Annexures:
(ii) The other aspect the Hon'ble Court has based its judgment is the standard of proof. It is well established in law that in Departmental proceedings proof required is that preponderance of probability and not proof beyond reasonable doubt.
Conclusion of I.O. Tenable Thus the conclusion drawn by the Inquiry Officer should be judged and evaluated on the basis of preponderance of probability and not proof beyond reasonable doubt. Even going by the judgment of the Hon'ble Court the charged officer has not been held innocent and the Hon'ble Court has felt that the punishment awarded to the charged officer is harsh and not commensurate with the lapses attributable to him. The charged officer has been held to be guilty and what is to be decided now is as to what punishment is to be awarded, after a copy of the Inquiry Officer's report is given to him and he is given an opportunity of being heard.
The finding of this Court regarding quantum of punishment was also criticised, which is clear from the following passage of the same agenda:
JURISDICTION OF COURTS REGARDING QUANTUM OF PUNISHMENT
6. Normally, the Hon'ble Courts are not expected to go into the quantum of punishment as this is the prerogative of the Disciplinary authority provided full opportunity was given to the charged officer and the inquiry was held as per Rules/procedures and Principles of natural justice. In the instant case neither the charged officer nor the Hon'ble so Court has alleged/found any snags in the holding of inquiry or non-compliance with the prescribed procedure or the principles of natural justice.
SUPREME COURT'S DECISIONS REGARDING JURISDICTION OF COURTS /TRIBUNAL.
In a recent judgment [PRECEDENT] the Hon'ble Supreme Court has categorically held that the Administrative Tribunal can exercise only such powers which the civil courts or the High Courts could have exercised by way of judicial review. The Hon'ble Supreme Court in that case further observed as under:
The jurisdiction of the Tribunal to interfere with the disciplinary matters or punishment cannot be equated with an appellate jurisdiction. The Tribunal cannot interfere with the findings of the Inquiry Officer or competent authority where they are not arbitrary or utterly perverse. The power to impose penalty on a delinquent officer is conferred on the competent authority cither by an Act of legislature or rules made under the proviso of [SECTION] of the [ACT]. If there has been an enquiry consistent with the rules and in accordance with the principles of natural justice, what punishment would meet the ends of justice is a matter exclusive within the jurisdiction of the competent authority. If the penalty can lawfully be imposed and is imposed on the proved misconduct, the Tribunal has no power to substitute its own discretion for that of the authority. The adequacy of penalty unless it is mala fide, is certainly not a matter of the Tribunal to concern itself with. The Tribunal also cannot interfere with the penalty if the conclusion of the Inquiry Officer or the competent authority is based on evidence even if some of it is found to be irrelevant or extraneous to the matter.
On the basis of above agenda Board of Management passed a non speaking order terminating the service of the appellant. The only thing mentioned in this order is that the appellant is found guilty of misconduct for the reasons given in the agenda/note.
7. Learned Single Judge also observed that the Division Bench, while allowing earlier writ petition of the appellant, has held the charges against the appellant, as not proved, without considering all sub-charges of the charges Nos. 1 to 7. Relevant extract from the impugned judgment of die learned Single Judge, in this connection is reproduced below:
From the aforesaid decision dated August 23, 1990 it is fully established that this Court on the basis of the findings recorded on one of the sub-charges of the main charge came to the conclusion that the charges have not been established unequivocally and there is an error apparent. I have carefully seen the entire record, the findings of the Enquiry Officer and the reply of the petitioner. In my opinion, the findings of the Enquiry Officer, if seen as a whole in respect of various sub-charges contained in each charge, it is fully established that the charges have been sub-stantially proved against the petitioner.
8. From perusal of the material on record, it appears that the observations made by the learned Single Judge, in the impugned judgement, against the judgment of the Division Bench in earlier writ petition of the appellant, may be correct, but he was not sitting in appeal over that judgment, which became final, as it was not challenged before Hon'ble Supreme Court. Even if the judgment of a court is wrong, it is binding on the parties and questions decided in it, cannot be re-opened in proceedings/cases of initiated subsequently. The judgment of Division Bench of this Court in earlier writ petition, even if it is erroneous, has to be accepted. Even the learned Single Judge could not have brushed aside that judgment by pointing out infirmities in it. Respondents were equally bound by that judgment and it was not open to them to comment and condemn in the agenda. If the University was dissatisfied with that judgment, it was open to it to challenge it before the Supreme Court. But it was not done. Judgments of this Court are expected to be respected by the respondents. In the instant case an unusual thing of critisising the judgment of this Court, on merit, was done, as if the University authorities were sitting in appeal over it. Such a conduct is highly reprehensible.
9. This appeal, as such, is liable to be allowed. It has been stated in para 8 of the affidavit of the appellant, filed in support of stay application, moved in this appeal, that the appellant has superannuated from service on March 31, 1992. Division bench, while allowing the earlier writ petition of the appellant, has reinstated him with direction to pay arrears of salary to him. The impugned order, terminating his service, was passed on May 14, 1991. As the appellant has admittedly been retired from service on March 31,1992, the question of his reinstatement does not arise. But he is entitled to his salary from the date of termination of service (May 14, 1991) to March 31, 1992, the date on which he retired from service.
10. This appeal is accordingly allowed. The judgment of learned Single Judge is set aside. The impugned order of termination of service of appellant dated May 14, 1991, is quashed. The 5 respondents are directed to pay salary of the appellant from May 14, 1991 to March 31, 1992, within three months from the date of presentation of the certified copy of this order, before the Vice-Chancellor of the University.