* THE HON'BLE MR JUSTICE RAMESH RANGANATHAN + WRIT PETITION NO : 3892 of 2000 % 07-02-2005 # D. Pandu, S/o Monia, R/o Edukotala Tanda, Nalgonda Road, Miryalaguda, Nalgonda District. … Petitioner Vs. $ The General Manager, Central Warehousing Corporation 4/1, Siri Institutional Area, New Delhi and others. … Respondents. ! Counsel for the Petitioner: Mr.A.V. Sesha Sai ^ Counsel for respondents: Mr. G. Ramachandra Rao S.C. < Gist: >Head Note ? AIR 1997 SC 3005 2 AIR 1999 SC 1416 3 1999(4) ALD 39(DB) 4 2000(6) ALD 661 5 2001(4) ALD 535(DB) 6 1997(4) ALD 332 7 AIR 1976 SC 1785 8 2001(2) ALT 1 (DB) 9 2004(7) ALT 56 (DB) 10 2003(2) ALT180(DB) 11 2001 LAB.I.C.1579 12 AIR 1991 SC 471 13 AIR 1994 SC 1074 14 AIR 1990 SC 1984 15 2006(1) ALD 229 (DB) THE HON’BLE SRI JUSTICE RAMESH RANGANATHAN WRIT PETITION NOs. 3892 and 3897 OF 2000 ORDER: The question involved in both the writ petitions is as to whether acquittal in a criminal case, would preclude disciplinary action being initiated against an employee for the very same charges. Since common questions of law have been raised in both these writ petitions, they were heard together and are now disposed of by a common order. It would be suffice if the facts in W.P.No.3892 of 2000 are taken note of. The petitioner was initially appointed as a chowkidar with the Central Warehousing Corporation. On the intervening night of 1st/2nd December, 1986 six bags of rice were stolen from the Central Warehousing Corporation godown. Petitioner was placed under suspension in the month of December, 1986, along with five other chowkidars, and was issued memo dated 8.1.1987 directing him to show cause as to why action should not be taken to remove him from service. A criminal case was also lodged against the petitioner in C.C.No.74/87, before the Judicial First Class Magistrate, Suryapet, under Sections 457 and 381 I.P.C. Petitioner was issued charge sheet in proceedings dated 27.2.1987, enclosing the statement of imputations, and was directed to submit his statement of defence. Petitioner submitted his explanation thereto. The criminal case instituted against the petitioner ended in his acquittal on 14.9.1987. Petitioner, thereafter, submitted a representation to the 2nd respondent to reinstate him into service in view of his clean acquittal on merits by the criminal court. However the respondents proceeded with the departmental enquiry. Initially, in the month of April, 1987, one Sri Moizuddin, Deputy Manager (General) was appointed as the enquiry officer and subsequently in September, 1987 Sri P.S.Joshi, Deputy Manager (Technical), Vijayawada was appointed as the enquiry officer. The enquiry officer submitted his report on 28.3.1988 holding the petitioner herein and Sri K.Mallaiah (petitioner in W.P.3897/2000) guilty of the charges levelled against them. On receipt of the enquiry report dated 25.3.1988, the disciplinary authority, (3rd respondent), by order dated 26.5.1988, inflicted on the petitioner the punishment of removal from service. The said order of removal was communicated, to the petitioner, vide memo dated 27.5.1988. Against the order of removal dated 26.5.1988 passed by the 3rd respondent, the petitioner preferred an appeal on 30.6.1988 before the appellate authority (2nd respondent herein). The 2nd respondent, by order dated 10.8.1990, rejected the appeal and confirmed the penalty of removal. The order of the appellate authority was communicated, to the petitioner, vide memo dated 18.9.1990. The petitioner herein and Sri K.Mallaiah, (petitioner in W.P.3897/2000), filed W.P.9769/88 before this Court and this Court, by order dated 18.3.1998 while dismissing the writ petition, gave the petitioners liberty to file a review petition under Regulation 69 of the Central Warehousing Corporation (Staff) Regulations, 1986 (hereinafter referred as the ‘regulations’) before the 1st respondent within one month. Pursuant to the said order, the petitioner filed review petition on 8.4.1998. Since no orders were passed thereon, the petitioner filed W.P.No.244411/99 and as, in the meanwhile, the 1st respondent passed orders on 3.12.1999 rejecting the review petition filed by the petitioner, W.P.No.244411/99 was dismissed as infructuous. The order of the 1st respondent dated 3.12.1999 was communicated to the petitioner by the 4th respondent in Memo dated 16.12.1999. Aggrieved thereby, the present writ petition came to be filed. Before this court, Sri A.V.Sesha Sai, learned counsel for the petitioners, would contend that since the charge in the criminal case and the departmental proceedings is one and the same, on the petitioners’ acquittal on merits by the competent criminal court, departmental proceedings should have been dropped. In support of this contention, learned counsel would place reliance on Govt. of Andhra Pradesh v. C.Muralidhar; Capt. M.Paul Anthony v. Bharat Gold Mines Ltd; A.P.S.R.Tc. v. T.Venkatapathi; K.Raghuram Babu v. Railway Protection Force, South Central Railway, Secunderabad; S.K.Ramju v. Regional Manager, APSRTC, Nalgonda. Learned counsel would contend that failure to furnish a copy of the enquiry report before imposition of punishment, is not only contrary to Regulation 64 of the Regulations but also in violation of principles of natural justice, resulting in the enquiry proceedings being vitiated. He would place reliance on Iftekar Ahmed v. Union Bank of India, in this regard. He would contend that the impugned order passed by the 1st respondent, on the review petition filed by the petitioner, is a non- speaking order and since orders of quasi judicial authorities are required to contain reasons, failure to furnish reasons is in violation of principles of natural justice. Learned counsel would rely on The Siemens Engineering and Manufacturing Co. of India Ltd. V. The Union of India in this regard. Learned counsel would also refer to regulation 65 in support of his contention that where two or more employees are involved in similar acts of misconduct, the competent authority should direct that a common enquiry be conducted and since in the present case, no such common enquiry was held, the entire enquiry proceedings were contrary to Regulation 65. Sri G.Ramachandra Rao, learned standing counsel for the respondents, would submit that while seven witnesses were examined on behalf of the management to establish the charge, the petitioner did not choose to examine any witness in his defence. Learned standing counsel would submit that while the charge in criminal case and in the departmental proceedings were common, the witnesses examined in the criminal case and the departmental proceedings were not. Learned standing counsel would submit that among the seven witnesses examined in the departmental enquiry, only two witnesses had been earlier examined in the criminal case. While in criminal case fourteen witnesses were examined, P.W.6 and P.W.7, in the criminal case, were alone examined in the departmental enquiry. Learned standing counsel would submit that in addition to these witnesses several other witnesses were examined in the departmental enquiry. He would also refer to the findings of the enquiry officer, in the enquiry report, wherein reasons have been assigned as to why the enquiry officer differed with the findings of the criminal court. Learned standing counsel would contend that there is no prohibition in conducting departmental enquiry merely because the petitioners had been acquitted in the criminal case, even though the charges were common and more so since the witnesses were not all common and the enquiry officer had assigned reasons as to why he differed with the findings of the criminal court. Learned counsel would rely on V.Srinivas v. Superintendent of Police, Medak District, Nazeer Ahmed v. Govt. of A.P., Home Department, Nagarjuna Grameena Bank, Khammam v. Mandulla Beerappa and Sk. Ahmed v. Labour Court. Learned standing counsel would submit that the petitioner had admitted his guilt, which fact was referred to in the statement of allegations. According to the learned standing counsel, the order of the disciplinary authority also reflects this aspect. Learned standing counsel would contend that Regulation 65 merely confers a discretion and does not mandate that a common enquiry be conducted in all cases. With regards failure to furnish a copy of the enquiry report, before imposition of punishment, learned standing counsel would submit that since the regulations do not require a copy of enquiry report being furnished prior to imposition of punishment and inasmuch as this requirement has been held in Union of India v. Md.Ramzan Khan and Managing Director, ECIL v. B.Karunakar to be prospective and not to apply to punishments imposed prior to 20.11.1990 and since the punishment of removal, in the present case, was imposed on 26.5.1988, prior to that date, failure to furnish a copy of the enquiry report would not vitiate the departmental proceedings. With regards the contention that the reviewing authority has failed to assign reasons in support his order, learned standing counsel would submit that the said order of the reviewing authority must be understood as an order agreeing with the findings of the enquiry officer, disciplinary authority and the appellate authority and therefore elaborate reasons need not be furnished. It is not in dispute that the charges in the criminal case and the disciplinary proceedings are the same and that the petitioners herein were acquitted by the competent criminal court in respect of the very same charges, which form the basis for disciplinary action being taken against them. The enquiry officer, in his report dated 28.3.1988, dealt with the order of the criminal court acquitting the petitioners and held as under: “Let us now examine the Court’s judgment (D.7) on which AC relies so much. As per judgment dt.14.9.1987, Hon’ble Judicial First Class Magistrate of Suryapet, has acquitted among others, Shri K.Mallaiah (DO.1) and Shri D.Pandu (DO.2) on a case filed by APPO. The accused DO.1 and DO.2 were acquitted on technical grounds and it appears that APPO has not presented the case properly. Lacunae on the part of Public Prosecution appear to be: i. Police did not conduct proper panchanama at the scene of offence; ii. Improper/inadequate deposition by the police investigating officer in the court regarding demonstration of the opening of defective shutter. Hon’ble Judge has clearly observed that this is a very important omission in the evidence of the key witness for prosecution (page 15 of D.7); iii. Stock register and PV report was not seized and produced before the court to establish the shortage of six bags. Hon’ble Judge has remarked in this regard that investigation by the police was not on the proper lines (Page 23 of D.7); iv. Further, the concerned godown in charge Shri Ravindra Babu, was not examined by APPO to establish the shortage; v. Crucial witness Shri Balaram was not examined by APPO (Page 28 of D.7) vi. Improper investigation by Police and vii. Stolen property (6 bags of rice) was not produced in the court for examination by the court. Thus, it is clear that if the case had been properly presented by APPO, he would have won the case and the accused would have been held guilty.” The enquiry officer held that the defective shutters could be lifted to allow a person inside the godown and remove the bags through the shutter and that six bags were removed and brought out through the defective shutter. The enquiry officer held that there was circumstantial evidence to suggest the involvement of both the petitioners herein in the theft of six bags of rice from B/1 compartment of the Warehousing Corporation on 1.12.1986. Now to the judgments on this question. In Sk.Ahmed11, this Court, after a detailed survey of the earlier judgments of the Apex Court, held thus: “From the decisions referred to herein above, it is clear that an employer can proceed against its employee and initiate departmental enquiry as well as criminal prosecution on the same set of facts. In appropriate case, even the civil proceedings could be initiated. There is no bar in law to initiate all the proceedings simultaneously. In appropriate proceedings, the Court may stay the departmental proceedings, if the Court comes to a conclusion that it may not be ‘desirable’, ‘advisable’, or ‘appropriate’ to proceed with the disciplinary enquiry when a criminal case is pending on identical charges. It is not a matter of course, but required to be taken having regard to the facts and circumstances in each case. One of the most important considerations that may have to be taken into account before stalling the departmental proceedings is that the defence of the employee in the criminal case may be prejudiced if the departmental enquiry is simultaneously held. This may be done in cases of grave nature involving complicated questions of fact and law. It is well settled that acquittal in a criminal case by the competent court of criminal jurisdiction does not confer any automatic right upon the delinquent employee for his reinstatement into service, even if the prosecution and the departmental enquiry is based on the same set of facts. The distinction between the criminal proceeding and the departmental proceeding is clear. The nature of proof required in a criminal case for establishing the charges and the departmental proceedings for proving the misconduct is not one and the same. It cannot be said that the charges in a criminal case and departmental proceedings would be the same, merely because the same set of facts are involved. The question that falls for consideration in a criminal case as to whether the charged person is guilty of offence punishable under Indian Penal Code or any penal statutes for the time being in force, whereas in a departmental enquiry what is required to establish is as to whether the employee is guilty of misconduct. The misconduct is invariable defined by the rules or regulations, as the case may be by which an employee’s conduct is regulated. The misconduct under rules or regulations is entirely different fro that of an offence under Indian Penal Code or any penal statues, as the case may be. On the same set of facts, the disciplinary authority and the criminal Court can come to different conclusions with the regard to the allegations made against the delinquent officer. The conclusions so reached operate in different fields. The consequences that flow from such conclusions are also different. “ In V.Srinivas8, a Division Bench of this Court held thus: “There cannot thus be any dispute whatsoever that both the criminal charges and the departmental proceedings proceed simultaneously……… ……….It is further well settled that even in a case where the criminal trial ends in acquittal in favour of the delinquent employee, there does not exist any embargo on the part of the disciplinary authority in initiating disciplinary proceedings on the self same charges. As noticed hereinbefore, in Paul Anthony’s case (1999)3SCC 679), the Supreme Court itself has categorically held that it is possible that a person can be fund guilty of commission of misconduct despite his acquittal in the criminal trial. The learned counsel for the petitioner, however, would urge that as in the instant case the criminal trial and the departmental proceedings are based on the same set of facts and the evidence adduced before the Criminal Court and the disciplinary authorities being the same without any variance, exception to the aforementioned rule would be attracted. The learned counsel, however, could not produce any material whatsoever in support of the aforementioned contention before this Court. Even the judgment of the criminal case has not been produced. “ In Nagarjuna Grameena Bank10, a Division Bench of this Court held in paragraph 8 thus: “Although several decisions were cited before us by both the learned counsel relating to the circumstances under which a disciplinary proceeding could be initiated against the delinquent official despite the acquittal of such delinquent by a criminal court on the ground that the charge is not proved beyond reasonable doubt, would not come in the way of a disciplinary authority either initiating disciplinary proceedings after the acquittal or pursuing the disciplinary proceedings already initiated by the date of acquittal………..” In Nazeer Ahmed9, a Division Bench of this Court held thus: “…….. Only because an order of acquittal has been passed, the same by itself cannot be a ground for quashing the said proceedings. It is now well settled principle of law that criminal proceedings and departmental proceedings stand on different footings. Even in a case where criminal proceedings have been initiated there is no bar in initiating a departmental proceedings. The standard of proof required in both the proceedings is absolutely different. Whereas in a criminal case an accused has to be proved to be guilty of commission of an office beyond all reasonable doubt, in a departmental proceedings preponderance of probability would suffice.” The law laid down, in the aforesaid judgments of this Court, is that mere pendency of criminal proceedings does not preclude the authorities concerned to initiate disciplinary proceedings for the very same charge, since the scope of disciplinary proceedings is different from that of criminal proceedings. While the degree of proof required in criminal proceedings is proof beyond reasonable doubt, in disciplinary proceedings it is that of preponderance of probabilities. While disciplinary proceedings are initiated for misconduct, prescribed either under the certified standing orders or in the rules and regulations governing employees of the establishment, criminal proceedings are for offences under the Indian Penal Code or under other statutes. It is, however, necessary to refer to the judgments referred to by Sri A.V.Sesha Sai, learned counsel for the petitioners. In C.Muralidhar1, the employee challenged, the disciplinary proceedings initiated against him, before the A.P. Administrative Tribunal contending that a criminal case was pending on the very same charges. During the pendency of the proceedings before the Tribunal, the petitioner was acquitted in the criminal case. Since the said judgment was not brought to the notice of the Tribunal, the Tribunal disposed of the petition holding that if the criminal proceedings had already been disposed of, no departmental enquiry could be held for the very same charge of possessing assets disproportionate to the known sources of income. The Tribunal, however, was of the view that the other charge in the departmental proceedings, that the respondent had acquired assets without permission of the department, was not part of the charge in the criminal case. The Tribunal observed that the it would be open to the authority to proceed with the departmental proceedings on this charge. The government, however, vide G.O.Ms.No.74 dated 24.2.1995, decided that further action, in the case of allegation of disproportionate assets, be dropped since he was acquitted by the ACB Court and found not guilty of the allegation. The said order of the government made no reference to the judgment of the Tribunal. Subsequently, a fresh charge memo was issued to the employee for acquiring and possessing properties without having obtained permission of the Government (a charge which was not part of the criminal proceedings). The challenge thereto by the employee was allowed by the Tribunal holding that in view of G.O.Ms.No.74 dated 24.4.1995 dropping disciplinary action against the employee, it was not open to the authorities concerned to initiate disciplinary action by issuing charge memo dated 24.4.1996. Aggrieved by the judgment of the Tribunal, the government of Andhra Pradesh carried the matter in appeal to the Supreme Court. The Supreme Court held that G.O.Ms.No.74 dated 24.4.1995 could not be considered as containing a direction that disciplinary proceedings against the respondent in respect of the charge, regarding the allegation of possessing of the properties without permission of the government, was also directed to be dropped and therefore there was no infirmity in the charge memo dated 20.2.1996. In Muralidhar1, neither was it in issue before the Supreme Court nor was it held that a disciplinary enquiry could not be conducted on the very same charge which was subject matter of the criminal proceedings. Since this question was not in issue before the Supreme Court, the judgment in Muralidhar1 has no application to the present case. I n T.Venkatapathi3, the charge levelled against the employee in the disciplinary proceedings was of his involvement in a criminal case resulting in institution of a criminal case against him and since the criminal case was found to be untenable, the very basis of the charge was knocked out. It is in such circumstances that the Division Bench held that the charges in the departmental proceedings must be quashed, as the criminal case had ended in acquittal. In the present case, the charges leveled against the petitioners are not of their involvement in a criminal case resulting in institution of criminal proceedings against them, but is for theft of six bags of rice. As such, their acquittal in the criminal case neither forms nor does it knock out the basis of the charge in the departmental enquiry. The judgment in T.Venkatapathi3 is of no assistance to the petitioners. In S.K.Ramju5, a Division Bench of this Court held thus: “…………In the instant case, we are of the opinion that the case of the appellant stands on a better footing, in the sense, the misconduct which is said to have been committed by the appellant goes out of factual matrix, which was also subject-matter of criminal case and not independent. It is not a case where the petitioner was charged with any misconduct unconnected with the said accident. In any event, as it has been held by the criminal Court that the appellant was not guilty of the charge of causing death, and he had not been acquitted on the ground of benefit of doubt, we fail to understand as to how despite the said finding of competent Court of law, the reputation of the respondent-Corporation has been damaged” This judgment is also of no assistance to the petitioner. In Cap.M.Paul Anthony2, the Supreme Court held thus: “There is yet another reason for discarding the whole of the case of the respondents. As pointed out earlier, the criminal case as also the departmental proceedings were based on identical set of facts, namely, “the raid conducted at the appellant’s residence and recovery of incriminating articles therefrom”. The findings recorded by the enquiry officer, a copy of which has been placed before us, indicate that the charges framed against the appellant were sought to be proved by police officers and panch witnesses, who had raided the house of the appellant and had effected recovery. They were the only witnesses examined by the enquiry officer and the enquiry officer, relying upon their statements, came to the conclusion that the charges were established against the appellant. The same witnesses were examined in the criminal case but the Court, on a consideration of the entire evidence, came to the conclusion that no search was conducted nor was any recovery made from the residence of the appellant. The whole case of the prosecution was thrown out and the appellant was acquitted. In this situation, therefore, where the appellant is acquitted by a judicial pronouncement with the finding that the “raid and recovery” at the residence of the appellant were not proved, it would be unjust, unfair and rather oppressive to allow the findings recorded at the ex parte departmental proceedings to stand. Since the facts and the evidence in both the proceedings, namely, the departmental proceedings and the criminal case were the same without there being any iota of difference, the distinction, which is usually drawn as between the departmental proceedings and the criminal case on the basis of approach and burden of proof, would not be applicable to the instant case.” In K.Raghuram Babu4, this Court relying on Cap. Paul Anthony2, held that, disciplinary proceedings could not be instituted on the very same charges and where same witnesses were examined both in the criminal case and in the departmental enquiry, and that in such a situation, when the employee was acquitted by judicial pronouncement holding him not guilty of the charge, it would be unjust and unfair to allow the findings recorded in the departmental proceedings to stand. While departmental proceedings can be initiated for the very same charges, on which a criminal case has been instituted, in exceptional circumstances, where the facts and evidence in both the departmental proceedings and the criminal case are the same, without there being an iota of difference, it