R.S.A.No. 2579 of 2005(O&M) 1 In the High Court of Punjab and Haryana at Chandigarh Date of decision: 06.04.2011 R.S.A.No. 2579 of 2005(O&M) State of Haryana and others ......Appellants Versus Ashwani Kumar .......Respondent Cross Appeal No.4 of 2005 Ashwani Kumar .......Appellant Versus State of Haryana and others .......Respondents CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr.Deepak Jindal, DAG, Haryana. Mr. Deepak Agnihotri, Advocate for Ashwani Kumar. **** SABINA, J. Vide this judgment RSA No.2579 of 2005 and Cross appeal No.4 of 2005 will be disposed of as these have arisen out of the same suit. R.S.A.No. 2579 of 2005(O&M) 2 Plaintiff had filed a suit for declaration challenging the order, whereby he was dismissed from service. The case of the plaintiff, in brief, was that a chargesheet was served on the plaintiff along with other colleagues. He was falsely implicated in FIR No.570 dated 17.8.1991 under Sections 409, 201, 379, 120-B of the Indian Penal Code, Police Station City Gurgaon. The Inquiry Officer recorded the statements of witnesses and held that all the delinquent employees were equally responsible and guilty of the charge framed against them. A show cause notice was served on the plaintiff and he submitted his reply thereto. Without considering the reply submitted by the plaintiff, vide the impugned order dated 7.9.1994, plaintiff was dismissed from service. Appeal filed by the plaintiff against the said order was rejected by the Appellate Authority. The plaintiff was acquitted in the criminal case. Defendants in their written statement averred that the plaintiff was posted as a Clerk in Haryana Roadways, Gurgaon from 1.4.1988 to 31.7.1991. The plaintiff had embezzled a sum of ` 2,07,888/- on account of bus concessional passes of students and employees in connivance with others. The plaintiff did not maintain the concessional bus passes register properly. During departmental proceedings, the plaintiff was found guilty of misappropriation of funds to the extent of ` 2,07,888/- . After following due procedure, the punishing authority passed the impugned order of dismissal. On the pleadings of the parties, following issues were framed by the trial Court:- “1. Whether the plaintiff is entitled to the effect that the R.S.A.No. 2579 of 2005(O&M) 3 finding of Inquiry Officer is quite perverse, unreasonable and vitiated and the order of dismissal bearing No.10417 dated 7.9.1994 passed by defendant No.3 and the order of rejection of appeal dated 19.9.1994 passed by defendant No.2 are illegal, ultravirus and null and void and not binding on the plaintiff on the grounds as mentioned in the plaint.? OPP. 2. Whether the plaintiff is entitled to the relief of declaration as prayed for ? OPP 3. Whether the present suit filed by the plaintiff is within limitation ? OPD 4.Whether the plaintiff has no cause of action to file the present suit ? OPD 5. Whether the plaintiff has no locus standi to file the present suit ? OPD 6. Whether the plaintiff is estopped by his own act and conduct ? OPD 7. Whether the plaintiff has not come to Court with clean hands ? OPD 8. Whether the suit is not maintainable in the present form ? OPD 9. Relief.” The Civil Judge (Sr.Divn.) vide judgment and decree dated 26.5.2004 decreed the suit of the plaintiff but held that the plaintiff was not entitled to the relief of back wages. Aggrieved by the said judgment and decree, both the plaintiff and defendants preferred appeals. The District Judge, vide judgment and decree R.S.A.No. 2579 of 2005(O&M) 4 dated 9.11.2004 dismissed the appeal filed by the defendants and allowed the appeal filed by the plaintiff and held that the plaintiff was also entitled to the relief of back wages from the date of acquittal in the criminal case. Hence, the present appeal by the defendants and cross appeal by the plaintiff. Learned State counsel has submitted that the criminal and departmental proceedings could go on side by side and it was not necessary to stay the enquiry proceedings during the pendency of the criminal case. Acquittal of the plaintiff in the criminal case would not itself be sufficient to hold that the plaintiff was entitled for reinstatement. Nature and scope of proof in criminal case varies from that of a departmental disciplinary proceedings. The plaintiff was the main accused. In support of his arguments, learned State counsel has placed reliance on South Bengal State Transport Corporation vs. Swapan Kumar Mitra and others 2006 (1) SCT 720 and ASI Sham Lal vs. State of Haryana and others 2004 (1) RSJ 187. Learned counsel for the plaintiff, on the other hand, has submitted that the plaintiff had been treated with discrimination. The departmental enquiry was held against the plaintiff along with seven other co-employees. All the employees were held equally responsible by the Inquiry Officer. However, only the plaintiff was dismissed from service, whereas, the other employees were allowed to continue in service. In support of his arguments, learned counsel for the respondent has placed reliance on Sukhjit Singh Khaira vs. State of Punjab and others 2005 (1) SCT 50. R.S.A.No. 2579 of 2005(O&M) 5 After hearing learned counsel for the parties, I am of the opinion that the present appeals are devoid of any merit and deserve dismissal. In the present case, admittedly, the departmental proceedings were initiated against the plaintiff and seven others qua alleged embezzlement committed by them to the tune of ` 2,07,888/-. The allegation against the plaintiff was that he had embezzled the revenue collected on account of students/ employees bus concessional passes in connivance with other officials. The Inquiry Officer vide the report Ex.P-2 held that the plaintiff as well as the other seven employees were equally responsible qua the charges levelled against them. The plaintiff and the other employees, against whom FIR was got registered qua embezzlement, were acquitted by the trial Court vide judgment dated 21.12.2001 Ex.P-5. It was held that the prosecution had failed to prove the guilt of the accused beyond the shadow of doubt. A perusal of the said judgment reveals that the prosecution had failed to establish the entrustment to the accused. None of the receipts was produced in the Court. Audit report was also not proved on record to prove the defaultation. Although as per the inquiry report, the plaintiff as well as his seven other co-employees were found to be equally responsible qua the charge levelled against them but only the plaintiff was dismissed from service. Since all the employees were held equally responsible by the enquiry officer, there is no force in the submission made by the learned State counsel that the plaintiff was the main R.S.A.No. 2579 of 2005(O&M) 6 accused. The Courts below rightly held that the plaintiff had been discriminated. I have gone through the judgments relied upon by the learned State counsel. There is no quarrel qua the proposition of law settled vide the said judgments that the criminal proceedings and the departmental proceedings can go side by side. There is no dispute that the nature of evidence required in departmental proceedings is different than in criminal proceedings. However, the said judgments fail to advance the case of the appellants as in the present case, the plaintiff had been discriminated vis-a-vis other employees. The plaintiff has been allowed back wages from the date he was acquitted by the criminal Court. The discretion exercised by the learned first Appellate Court while awarding back wages does not call for any interference. No substantial question of law arise in these second appeals, which would warrant interference by this Court. Accordingly, the same are dismissed. (SABINA) JUDGE April 06, 2011 anita