THE HON’BLE SRI JUSTICE V. ESWARAIAH AND THE HON’BLE SRI JUSTICE VILAS V. AFZULPURKAR W.P.No. 17701 of 2008 Date of disposal: 8.12.2009 Between: Deputy Director, District Treasury Office, Mahabubnagar and another …Petitioners and S. Srinivasulu …Respondent THE HON’BLE SRI JUSTICE V. ESWARAIAH AND THE HON’BLE SRI JUSTICE VILAS V. AFZULPURKAR W.P.No. 17701 of 2008 ORDER: (Per Hon’ble Sri Justice V. Eswaraiah) Deputy Director, District Treasury Office, Mahbubnagar and Director of Treasuries and Accounts, A.P., Hyderabad have filed this writ petition questioning the order of the Andhra Pradesh Administrative Tribunal, Hyderabad dated 28.4.2008 passed in O.A.No. 4647 of 2007 whereby it allowed the application of the respondent herein. The respondent herein filed the aforesaid OA questioning the Charge Memo No. A1/666/2003, dated ...6.2004 issued by the 1st writ petitioner and also the enquiry report vide Memo No. A1/666/2007, dated 25.7.2007 on the ground that he was acquitted in three criminal cases and therefore the disciplinary proceedings cannot be continued. The Tribunal, following its earlier order in OA No. 6232 of 2006 dated 13.7.2007, which, in turn, followed the judgment of the Supreme Court reported in G.M. Tank V. State Of Gujarat , allowed the present OA, holding that when the charge itself is not proved in the criminal case, the same charge is unsustainable in departmental proceedings and in the case of G.M. Tank also the accused therein was acquitted and the Supreme Court held that there cannot be disciplinary proceedings on the same set of charges, which amounts to re-appreciation of the evidence by the departmental authorities, as if they are in appeal over the criminal court’s judgment. The respondent herein is A3 in CC No. 691 of 2004 on the file of the Judicial Magistrate of Fist Class at Mahabubnagar for the offence under Section 420 of Indian Penal Code and he was acquitted by judgment dated 5.5.2007. The charge against him was that A1 was a pensioner and with the assistance of A2 and A3 (respondent herein), they opened another account and drew Rs.1,760/- by getting fake pension payment order and that the respondent herein was also involved in another crime. Similarly the respondent herein is A3 in CC No. 677 of 2004 on the file of the Judicial Magistrate of First Class at Mahabubnagar for the offence under Sections 419 and 420 of Indian Penal Code and he was acquitted by judgment dated 5.5.2007. In the said case, the charge against the respondent herein was that A1 who is the wife of A2, had drawn the pension of one Jahangeer Bee with the assistance of A2 and A3 who were Attender and Typist in Sub- Treasury Office respectively. The respondent is also A2 in CC No. 273 of 2004 on the file of the Special Judicial Magistrate of First Class, Mahabubnagar for the offences under Sections 420, 409 and 468 of the Indian Penal Code and in that case also, by judgment dated 1.6.2005 he was acquitted. In all the three cases the respondent herein was acquitted by the Criminal Courts as the prosecution had failed to prove his guilt beyond all reasonable doubt. In the instant case, the departmental proceedings were initiated in June, 2004 against the respondent herein on the following charge, “Charge-I: That the said Sri S.Srinivasulu, Typist (U/S), Dist. Treasury, Mahaboobnagar while working as Typist, in the Dist. Treasury, Mahabubnagar has created fake PPO bearing No. 11-SGC-005282 on his name in the computers Hqrs Sub-Treasury, Mahabubnagar from April, 2003 to June, 2003 and misappropriated Government money to the tune of Rs.18,370=00 violating the provisions under Rule 3 of A.P. Conduct Rules, 1964. Hence the charge.” Accordingly the enquiry was conducted and the Enquiry Officer found the respondent herein guilty of the aforesaid charge and he was furnished with a copy of the enquiry report by Memo dated 25.7.2007. The Enquiry Officer found that the respondent-charged officer had opened a Savings Bank Account in State Bank of Hyderabad, Main Branch, Mahabubnagar on 31.5.2001 by affixing his photo on the application and got credited the fake pension payment orders to his account for the period of May, June and July, 2003 and irregularly withdrew and misappropriated an amount of Rs.18,370/-. The respondent-charged officer also agreed to have withdrawn the said amounts, but stated that he was not aware that the amounts were that of the pensioners and that the said amount was credited to his account under money circulation scheme. The charge memo and the enquiry report along with show cause notice were questioned by the respondent before the Tribunal, which, by the impugned order, allowed the OA. The State was aggrieved of similar order of the Tribunal and filed W.P.No. 8000 of 2009 and batch which relate to employees who have been convicted in criminal cases and consequently dismissed from service. Against the conviction orders, the employees filed criminal appeals and obtained interim suspension of the sentence and challenged the dismissal orders on the ground that the conviction orders are pending in the criminal appeals. The said batch of writ petitions was disposed of by our judgment dated 17.11.2009. Since the respondent herein was acquitted in criminal cases, this case was separated from the aforesaid batch and is being disposed of by this order. In the aforesaid batch of writ petitions we have considered the distinction between G.M. Tank’s case which relates to disproportionate assets and other criminal cases and held as follows, “(G.M.Tank’s case) the said decision relates to a charge against an employee by the ACB regarding that he was having assets disproportionate to his known sources of income and a criminal case was initiated against the government servant. On the basis of aforesaid charge by the ACB, a charge was framed on the same lines in the departmental enquiry proposed against the said government servant. The Supreme Court noticed that in the criminal case the government servant was able to satisfactorily explain the said criminal charge and on the basis of the evidence adduced and the statement of accused/government servant under Section 313 Cr.P.C., the criminal Court had acquitted the accused/government servant of the said charge. The Supreme Court also noticed a marked distinction with regard to Section 5(1)(e) of the Prevention of Corruption Act in the following words: “The provision contained in Section 5(1)(e) is self- contained provision. The first part of the section casts a burden on the prosecution and the second on the accused as stated above. From the words used in clause (e) of Section 5(1) of the PC Act it is implied that the burden is on the accused to account for the sources for the acquisition of disproportionate assets. As in all other criminal cases wherein the accused is charged with an offence, the prosecution is required to discharge the burden of establishing the charge beyond reasonable doubt.” Thus, the decision of the Supreme Court proceed by taking into consideration that burden of explaining or giving the account of such excessive property lies on the accused but once that burden is discharged it is again for the prosecution to prove that the explanation furnished by the accused is not satisfactory. It is in such circumstances that the Supreme Court held that the accused, who is acquitted of the charge of holding disproportionate assets, cannot be proceeded against in the disciplinary enquiry on the self-same charges. The Supreme Court, therefore, made a very categorical distinction in the following words: “…The distinction which is usually proved between the departmental and criminal proceedings on the basis of the approach and burden of proof would not be applicable in the instant case…” Thus, it is in those circumstances that the charge in the departmental proceedings could not be proceeded further in view of the acquittal of the government servant of the charges in criminal proceedings. Without keeping the aforesaid distinction in mind the ratio of the above decision cannot be applied to every case of acquittal of criminal charges, for seeking quashing of the departmental proceedings also.” In the instant case, the scope and nature of criminal case and departmental proceedings are different and distinct, apart from being different in nature of proof of charge. In G.M. Tank’s case the burden lies on the accused to explain the disproportionate assets. The said explanation will be the one and the same in criminal case as well as departmental proceedings, whereas in respect of other cases, other than disproportionate cases, the nature of proof of charge in departmental proceedings differs from that of criminal case. In the instant case, the respondent was acquitted in the criminal cases as the prosecution had failed to prove his guilt beyond all reasonable doubt, but whereas the charges in the department proceedings are different from the charges in criminal cases and even otherwise the nature of proof of charge is different. In the departmental proceedings the charge against the respondent herein was proved and he was issued a show cause notice dated 25.7.2007 to submit his representation on the enquiry report. Therefore, we are of the opinion that the Tribunal has erred in allowing the OA of the respondent herein, based upon the earlier OA No. 6232 of 2007 which itself was not sustainable in view of our judgment in WP No. 8000 of 2009 and batch, dated 17.11.2009. Accordingly we allow the writ petition and set aside the order of the Tribunal. No costs. ______________________ JUSTICE V. ESWARAIAH _____________________________ JUSTICE VILAS V. AFZULPURKAR Dt. 8.12.2009 KR