IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.247 of 2009 Mahendra Swarup Shrivastava, Son of Late Yogeshwar Prasad Shrivastava, resident of Village-Pachlakhi, P.S.-Nautan, District- Siwan. …….Petitioner-Petitioner-Appellant. Versus 1. Bihar State Co-operative Marketing Union Ltd. (BISCOMAUN), West Gandhi Maidan, Patna through it’s Administrator (Now Managing Director). 2. The Administrator (Now Managing Director), Bihar State Co-operative Marketing Union Ltd. (BISCOMAUN), West Gandhi Maidan, Patna. 3. Shri Mantreshwar Jha, I.A.S. the then Administrator, BISCOMAUN, Patna Now posted as Secretary, Planning Department, New Delhi. 4. Shri Akhauri Bipin Bihari, Finance Controller cum Inquiring Officer, BISCOMAUN, West Gandhi Maidan, Patna. ----------- For the Petitioner : M/s Madan Mohan Prasad : Manindra Kumar, Anurag Pandey. For BISCOMAUN : Mr. Girijesh Kumar, Adv. ------------ 06. 06.07.2009 Heard learned counsel for the appellant and learned counsel for the respondent-BISCOMAUN. Appellant/petitioner was a Sales-cum-Account Assistant under BISCOMAUN. According to audit report of 1987 there was a defalcation of Rs. 2,00,000/- and odd and on that charge the appellant was suspended on 06.03.1989 and subjected to a departmental proceeding. A criminal case was also instituted against him. On the basis of inquiry report and other materials, in the first instance petitioner’s service was terminated on 07.11.1989 by order of the Administrator BISCOMAUN. That order provided for Subsistence Allowance for the period of suspension. Petitioner succeeded in getting rid of that order before the Registrar Co- - 2 - operative Society Bihar, Patna and the case was remanded for passing appropriate order after giving opportunity of hearing to the petitioner who was also directed to co-operate in the matter. The matter remained pending for several years and the petitioner filed a writ petition in the year 2000 for arrears of salary and current salary. In that writ petition an order was passed directing payment of Subsistence Allowance and for concluding the proceeding within two months. A cost of Rs. 10,000/- was also awarded in favour of the petitioner but the cost part was set aside by Division Bench in appeal. The departmental proceeding was expedited and petitioner was directed to co-operate in the proceeding but in spite of full knowledge the petitioner did not appear although he was given further notice as found by the writ court. According to the findings the Inquiry Officer had no option but to proceed ex parte because there was deliberate attempt to delay the matter. Subsistence Allowance was kept ready but was not accepted and the same was ultimately sent by the authorities through bank draft by post. After considering the relevant facts the writ court found that there had been no denial of opportunity of hearing to the petitioner and therefore requirement of natural justice stood satisfied. It has further been found by the writ court that petitioner - 3 - was acquitted in the criminal case because prosecution case could not produce relevant papers in court and on that account benefit of doubt was given to the petitioner on 17.08.1998. So far as law in respect of criminal proceeding as well as departmental proceeding on same charges is concerned, there is no confusion that both the proceeding can continue and disciplinary authority is precluded from taking any action against the delinquent employee only if the criminal court gives a positive finding on the basis of materials so as to rule out the entire occurrence alleged by the prosecution. In the present case only benefit of doubt was given. The standard of proof required in a departmental proceeding is different and rests upon the theory of preponderance of probability whereas in a criminal trial the charges have to be proved beyond all reasonable doubts. In the facts of the case, we find no error of law or facts either in the order passed in exercise of writ jurisdiction or in the order dismissing the review petition. This appeal is therefore dismissed. Vikash/- (Shiva Kirti Singh, J.) (Anjana Prakash, J.)