IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.1128 of 2001 SHESH PRASAD SINGH Son of Late Ramdihal Singh, Resident of Village Bagwan, P.S. Sandesh, District- Bhojpur............................. Petitioner Versus 1 THE STATE OF BIHAR 2. The Administrator, BISCOMAUN,West Gandhi Maidan, Patna 3 .The Secretary, Department of Cooperative, Govt. of Bihar,Patna 4. The Registrar, Co-operative Govt. of Bihar, Patna..Respondents -------- For the petitioner :- Mr. Ganesh Prasad Singh, Advocate For respondents 2 & 3; Mr. Rajesh Prasad Choudhary,Advocate For Respondent-State: Mr. Ram Pd.Singh,J.C. to AAG- I .............. 9 19-3-2009 Heard learned counsel for the petitioner and learned counsel for the Biscomaun. By the impugned order dated 1-9-2000 contained in annexure-7 petitioner has been dismissed from service on the basis of a departmental proceeding in which after enquiry petitioner was found guilty of the charges. Although petitioner has tried to make out a case that the proceeding was not conducted in a fair manner and that copy of the enquiry report was not given to him, the allegations have been denied in the counter affidavit and the annexures to the counter affidavit as well as annexures in the writ petition show that petitioner had full notice of the departmental proceeding. He had also submitted his defence but had not put his signature thereupon. This fact was communicated to him by the enquiry officer through annexure-1. Even the reply to Annexure-A sent by the petitioner as contained in annexure-B to the counter-affidavit did not bear his signature. - 2 - However, subsequently petitioner admitted that he had sent such a reply. Annexure-5 to the writ petition shows that petitioner was reminded through letter dated 30-6-2000 to submit his comment in respect of the enquiry report. Annexure-5 discloses that several communications for such comments from the petitioner had been made earlier by the Special Officer of Biscomaun. Petitioner’s reply to annexure-5 dated 10-7-2000 contained in annexure-6 does not deny non-receipt of enquiry report nor there is any defence that petitioner was unable to submit his comments on the ground that enquiry report was not made available to him, instead in Annexure-6 the defence of the petitioner was that he cannot submit his comments in respect of enquiry report because there was no such direction by the enquiry officer and that his comments may prejudice him in the criminal trial which was pending in court. This court finds that all the procedural requirements were complied with by the departmental authority and a copy of the enquiry report available with the counter- affidavit shows that several materials were available in the enquiry, on basis whereof charges against the petitioner were found to have been proved. The only defence of the petitioner worth considering is that for the alleged loot of Rs. 1,04,430.00/- petitioner had filed a criminal case in which police subsequently charge sheeted the petitioner himself for offence of cheating etc. but after the impugned order of dismissal he was acquitted of the criminal charges by the judgment and order dated 23-2-2001 which is contained in annexure-8 to the supplementary affidavit. According to learned counsel for the - 3 - petitioner, once the petitioner has been acquitted in the criminal case, it must be held that the disciplinary proceeding was not correctly decided and the finding against him in such proceeding must be deemed to be arbitrary and illegal. In support of this proposition he relied upon judgment of the Apex court in the case of G.M. Tank Vrs. State of Gujarat, reported in (2006) 5 SCC 446 and some judgments of this court. On the other hand, learned counsel for the Biscomaun placed reliance upon a judgment of the Supreme Court in the case of West Bokaro Colliery Vrs. Ram Pravesh Singh reported in (2008) 3 SCC 729 and a judgment by a Division Bench of this Court in the case of Bhagirath Mahto Vrs. State of Bihar, reported in 2008(2) PLJR 597 to submit that as a general principle it is well accepted that departmental enquiry and criminal case are two proceedings of different nature which can go simultaneously and concurrently and different conclusions can be reached in the two proceedings because decree of proof required in a criminal case is stricter and different than that in the case of a departmental proceeding in which finding can be based upon preponderance of probabilities. On going through the relevant judgments noticed above, this Court finds that proposition of law submitted by learned counsel for the Biscomaun is correct and its stand is well established by a catena of judgments. However, as in the case of G.M.Tank (supra) and in the case of Captain M. Paul Anthony Vrs. Bharat Gold Mines Ltd. and others reported in (1999) 3 SCC679 there can be a distinction in cases - 4 - Naresh AFR where criminal court grants acquittal with certain positive findings like in the case of Captain M.Pant that no search had been conducted nor any recovery was made as alleged in that case by the departmental authority. Only where the criminal court comes to such positive findings on the basis of evidence, the departmental enquiry by the concerned officer cannot dis-regard such positive findings to hold the concerned employee guilty. So far as the judgment in the criminal case relating to petitioner is concerned, it is apparent that the criminal case was lodged by the petitioner himself in which he was subsequently made accused by the police. A perusal of the said judgment discloses that although there was no direct evidence against the petitioner but many circumstances were brought on record against him but the court acquitted the petitioner by holding that the prosecution could not prove the charges beyond all reasonable doubts. There is no positive finding in the said judgment which may improbablise the charges found proved against the petitioner in the departmental proceeding. In view of law discussed above and the facts noticed, this Court finds no merit in the writ petition. It is accordingly dismissed. ( Shiva Kirti Singh,J)