THE HON’BLE SRI JUSTICE G.CHANDRAIAH W.P.NO.19006 OF 2003 O R D E R Heard both the counsel. 2. The writ petition is filed to declare the proceedings P.Admn.29(32)/96 dated 31.3.1999, which were confirmed by the appellate authority vide proceedings no. P. Admn. 9(32)/96 dated 8.2.2000 and 3.7.2000 and the further rejection order dated 10.7.2003, as illegal, arbitrary and violative of Articles 14 and 16 of the Constitution of India. 3. The petitioner joined in the service of A. P. State Civil Supplies Corporation as Messenger in the month of November, 1985 and subsequently during the course of his service, promoted to the cadre of Assistant Grade III. He was posted at Mandal Level Point, Yacharam, and there, he served up to 25.6.1996. While he was serving at Yacharam, a case under Section 6-A of the Essential Commodities Act, was booked, alleging that three quintals of subsidy rice was caught by the villages of Nandivanaparthy village, while it was being transported illegally. The Joint Collector by proceedings No.A7/2260/95 dated 25.11.1995 found the petitioner guilty of collusion and misappropriation of PDS stocks and responsible for illegal transportation of PDS stocks to open market. Thereupon, the petitioner was issued memo in proceedings No.P.Admn.29(5)/96 dated 30.3.1996, asking him to submit his reply within seven days, but he failed to submit any reply. In view of these circumstances, the petitioner was issued charge memo dated 7.5.1996, with the following charges: 1. As per the proceedings of Joint Collector, R.R. District, Sri V.Davis G.Ham Asst Gr.III incharge of MLS point Yacharam has misappropriated (3) three qtls. of PDS rice stocks. 2. As per the findings of Joint Collector, R.R. District of 6-A case Sri V.Davis G Ham, Asst. Gr.III MLS point Yacharam incharge is held proved that he is guilty of collusion in diversion of PDS rice stocks and directly involved in the total transaction. 3. He has violated the Clause No.24(b) of Conduct Discipline and Appeals Regulations of the Corporation, in not submitting the report within the time framed. 4. As the petitioner failed to file any reply, by proceedings of the District Manager, APSCSCL, R.R. District No.P.ADN.29(5)/95 dated 1.6.1996, he was placed under suspension. The District Manager, Hyderabad was appointed as Enquiry Officer. He conducted enquiry and submitted report dated 18.8.1997, holding the petitioner guilty of the charges leveled against him. The petitioner alleges that the enquiry was conducted in violation of the principles of natural justice. After submission of the report by the Enquiry Officer, the petitioner was issued show cause notice dated 8.5.1998 by the 1st respondent - Vice Chairman and Managing Director of A. P. State Civil supplies Corporation Limited, Hyderabad. Petitioner submitted his explanation and not being satisfied with the same, the Vice Chairman and Managing Director, by proceedings No.P.Admn. 29(32)/96 dated 31.3.1999, imposed the punishment, which as under 1. Recovery of shortages at double the economic cost, i.e., Rs.3,18,341.05 (Rupees three lakhs eighteen thousand three hundred and forty one and paise five) in LUMPSUM. 2. Stoppage of two annual grade increments without cumulative effect. 5. Aggrieved by the same, petitioner preferred appeal to the 1st respondent and by memo dated 8.2.2000, the appeal was rejected inter alia on the ground that he has to submit appeal to the Board of Directors. The petitioner preferred appeal to the Board of Directors and by memo dated 3.7.2000, the appeal was rejected. A criminal case in C.C.No.303/1996 was registered on the file of Judicial First Class Magistrate Ibrahimpatnam, Rangareddy District and by judgment dated 31.8.2001, the same ended in acquittal. Pursuant to the acquittal, petitioner made representation dated 28.10.2001. By order dated 10.7.2003, the 1st respondent rejected the representation. 6. As the take home salary of the petitioner is less than 1/3rd of his gross salary, the District Manager, APSCSCL, Hyderabad was directed to recover the amount of Rs.1,500/- per month from the salary of the petitioner and the recovery commenced from July, 2001 onwards. 7. In view of the rejection of the appeal and the subsequent representation, the petitioner preferred the present writ petition. 8. The case of the petitioner as stated in the affidavit filed in support of the writ petition and as contended by his counsel is that the enquiry officer conducted enquiry in violation of the principles of natural justice and that he was not supplied with the necessary documents and that it has caused prejudice to him. He also contended that without considering the evidence on record in right perspective, the punishment was imposed and since the findings of the enquiry are based on no evidence, the same have to be interfered with by this court under Article 226 of the Constitution of India. In support of this contention, the learned counsel relied on the judgment of the Apex Court reported in KULDEEP SINGH v. COMMISSIONER OF POLICE AND OTHERS[1] 9. The further case of the petitioner is that for the very same allegations, a criminal case was registered against him in C.C.No.303/1996 on the file of Judicial First Class Magistrate Ibrahimpatnam, Rangareddy District. By judgment dated 31.8.2001, the case ended in acquittal. Therefore, the contention of the counsel for the petitioner is that when criminal case, for the same charges and based on same evidence, ended in acquittal, the departmental proceedings shall conclude and the order of dismissal already passed before decision of criminal case, is liable to be set aside. In support of this contention, the learned counsel relied on the judgments reported in M.PAUL ANTHONY v. BHARAT GOLD MINES LTD.[2] and G.M.TANK v. STATE OF GUJARAT[3]. The further contention of the counsel for the petitioner is that the Andhra Pradesh State Civil Supplies Corporation Ltd., Conduct, Discipline and Appeals Regulations does not provide for any specific provision for conducting enquiry after the retirement of an employee. In these circumstances, remanding the matter, will serve no purpose. In support of his contention, the learned counsel relied on the judgment of the Apex Court in BHAGIRATH JENA v. BOARD OF EDIRECTIORS, O.S.F.C. & ORS.[4] With these contentions, the learned counsel sought to set aside the impugned order and to allow the writ petition. 10. The respondent – Corporation filed counter affidavit and while narrating the facts, which are already noted above, further stated that in the judgment in C.C.No.303/1996 dated 31.8.200,1 it was held that the prosecution failed to establish the facts that the accused misappropriated PDS rice, sugar and wheat, to a tune of Rs.1,59,170-52 (single cost) and Rs.3,18,341-65 (double the cost), beyond reasonable doubt and hence the accused was found not guilty for the offence under Section 409 I.PC. and is acquitted under Section 248(1) of Cr.P.C. Consequently, on 4.10.2001, the petitioner made an appeal to drop all proceedings against him and pay all amounts due to him. In view of the judgment and representation from the petitioner, the matter was referred to the Standing Counsel of the Corporation. The Standing Counsel opined that merely the delinquent was acquitted in criminal case, as there is no sufficient evidence for Criminal Act, the same cannot be taken to set aside the departmental proceedings. As far as recovery is concerned, the stocks were found short on physical verification and hence the liability cannot be exonerated. Accordingly, an endorsement was given to the petitioner on 10.7.2003, stating that mere acquittal of the delinquent in criminal case on technical ground, alone serves no purpose in view of the provisions under Chapter 30 of A.P. Civil Services Code (Volume II). As far as recovery is concerned, the stocks were found short at the time of physical verification and same were also held proved by the Enquiry Officer and hence his liability cannot be exonerated. Therefore, his representation to stop recovery of value of shortages noticed, is not considered. 11. It is further stated that the District Manager, APSCSCL, Rangareddy reported that the Superintendent of Police, Rangareddy filed an appeal against the accused in Crime No.58/96 before the Hon’ble High Court on 29.11.2001 against the judgment of the First Class Magistrate, Ibrahimpatam, Rangareddy District and the said case is pending in High Court. While denying that there is no material before the Enquiry Officer for proving the guilty of the petitioner, it is stated that the Enquiry Officer has given sufficient time and opportunity to the petitioner and the petitioner was also allowed to peruse the records. The orders issued to him are in line with the Regulations of the Corporation. He was given a long rope and after consideration of facts only, final orders were issued to him. It is stated that the punishment was imposed in the year 1999 and it was confirmed in the year 2000 and the same cannot be challenged after the expiry of four years and the writ petition is liable to be dismissed on the ground of latches. With these averments, the writ petition was sought to be dismissed. 12. The charges against the petitioner are that (1) He has misappropriated the PDS rice for a qty. of 294.92.750 qtls and sugar 1.21 qtls. and wheat 26.680 qtls. at the MLS point, which is a grave offence under clause 24(d) of Conduct, Discipline and Appeal Regulations and (2) that he has colluded with F.P. shop dealer of Nandi Vannaparthy village, in misappropriation of 3 qtls. of rice meant for public distribution system, which was proved in the enquiry in 6A case before the Joint Collector, Rangareddy District on 25.11.1995, which is an offence under clause no.24(d) of Conduct Discipline and Appeal Regulations of APSCSCL. 13. From the material on record, it could be seen that for the very same charges, criminal case in C.C.No.303/1996 was filed and the same ended in acquittal, as the prosecution failed to prove the guilt of the accused beyond reasonable doubt. Further, it is found that the respondents filed appeal before this court in Crl.A.No.2207/2004 and by order dated 1.2.2011, the appeal was dismissed. Therefore, when the charges in the departmental proceedings and before the criminal court are one and the same, the acquittal in criminal case on the basis of same set of facts and circumstances, shall enure to the benefit of the petitioner. The Apex Court in G.M.TANK v. STATE OG GUJARAT (3 supra) held that when the departmental enquiry and criminal proceedings based on same set of facts, charges, evidence and witnesses and in the criminal case, the employee was honourably acquitted, the findings contrary recorded in the departmental proceedings, have to be held as unjust, unfair and oppressive. The relevant portion of the judgment is extracted as under: “30. The judgments relied on by the learned counsel appearing for the respondents are distinguishable on facts and on law. In this case, the departmental proceedings and the criminal case are based on identical and similar set of facts and the charge in a departmental case against the appellant and the charge before the criminal court are one and the same. It is true that the nature of charge in the departmental proceedings and in the criminal case is grave. The nature of the case launched against the appellant on the basis of evidence and material collected against him during enquiry and investigation and as reflected in the charge- sheet factors mentioned are one and the same. In other words, charges, evidence, witnesses and circumstances are one and the same. In the present case, criminal and departmental proceedings have already noticed or granted on the same set of facts, namely, raid conducted at the appellant’s residence, recovery of articles therefrom. The Investigation Officer Mr.V.B.Raval and other departmental witnesses were the only witnesses examined by the enquiry officer who by relying upon their statement came to the conclusion that the charges were established against the appellant. The same witnesses were examined in the criminal case and the criminal court on the examination came to the conclusion that the prosecution has not proved the guilt alleged against the appellant beyond any reasonable doubt and acquitted the appellant by its judicial pronouncement with the finding that the charge has not been proved. It is also to be noticed that the judicial pronouncement was made after a regular trial and on hot contest. Under these circumstances, it would be unjust and unfair and rather oppressive to allow the findings recorded in the departmental proceedings to stand. 31. In our opinion, such facts and evidence in the departmental as well as criminal proceedings were the same without there being any iota of difference, the appellant should succeed. 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. Though the finding recorded in the domestic enquiry was found to be valid by the courts below, when there was an honourable acquittal of the employee during the pendency of the proceedings challenging the dismissal, the same requires to be taken note of and the decision in Paul Anthony case {(2006)4 SCC 26} will apply. We, therefore, hold that the appellant filed by the appellant deserves to be allowed.” 14. Therefore, as the criminal case filed against the petitioner ended in acquittal and the same was also confirmed by this court in the appeal, the case of the petitioner deserves to be re-considered by the respondents for passing appropriate orders in accordance with law. 15. For the foregoing reasons, the impugned orders are set aside and the respondents shall consider the case of the petitioner in the light of the acquittal of C.C.No.303/1996 dated 31.8.2001 on the file of Judicial First Class Magistrate, Ibrahimpatnam, Rangareddy District and the dismissal of appeal filed by the State in Crl.A.No.2207/2004 dated 01.02.2011 and pass appropriate orders within a period of four weeks from the date of receipt of a copy of this order. 16. The writ petition is accordingly disposed of. No costs. AVS ----------------------------- 08 --02—201 [1] (1999)2 SCC 10 [2] AIR 1999 SC 1416 [3] 2006 Supreme Court Cases (L & S) 1121 [4] 1999(4) Supreme 9.