opprHIGH COURT OF JUDICATURE OF ANDHRA PRADESH THE HONOURABLE SRI JUSTICE SANJAY KUMAR WRIT PETITION NO. 219 OF 2004 Thursday, the Third Day of December, Two Thousand and Nine Between Md. Iqbal Pasha Petitioner AND Northern Power Distribution Company of Andhra Pradesh Limited, Warangal, Rep. By its Chairman & Managing Director and another Respondents THE HONOURABLE SRI JUSTICE SANJAY KUMAR WRIT PETITION NO. 219 OF 2004 ORAL ORDER: The petitioner, a Revenue Cashier in a wing of the erstwhile A.P. State Electricity Board, thereafter reorganized as the Transmission Corporation of Andhra Pradesh Limited and subsequently further split up into Distribution Companies, challenges the proceedings dated 04.08.2000 issued by the Northern Power Distribution Company of Andhra Pradesh Limited (APNPDCL), Warangal, removing him from service as a consequence of the disciplinary proceedings initiated against him. The same was confirmed in appeal by the Chairman and Managing Director of the APNPDCL at Warangal by order dated 20.11.2003. The petitioner was subjected to disciplinary proceedings on four charges, namely: i) Temporary misappropriation of Board funds to the tune of Rs.7,523/- ii) Defalcation of Board funds to the tune of Rs.1.70 lakhs iii) Without issuing P.Rs. he had remitted an amount of Rs.2,742/- against the consumers of Palda and Srinagar camp. iv) He had operated two sets of BCRCs. simultaneously and one set (fake) was given for verification and another set (original) was enclosed to the P.C.Bs. where lesser amounts were written and less amounts were remitted. After due enquiry, the Enquiry Officer held that the charges levelled against the petitioner were duly proved. Thereupon show cause notice dated 21.02.2000 was issued by the APNPDCL calling upon the petitioner to show cause why he should not be removed from service and also why he should not be made liable to repay the misappropriated amount, to the tune of Rs.1,71,124.50 Ps. After considering his explanation, the proceedings dated 4.8.2000 were issued by the APNPDCL removing the petitioner from service and also making him liable for remittance of the amount of Rs.1,71,124.50 Ps. The petitioner appears to have approached this Court aggrieved by the said order dated 04.08.2000, by filing Writ Petition No.18543 of 2000. However, by order dated 28.09.2000, this court disposed of the writ petition directing the petitioner to avail the statutory remedy of appeal. Thereupon, the petitioner instituted an appeal before the Chief Engineer of the APNPDCL at Nizamabad, which was thereafter transferred to the first respondent. The appeal was rejected by the proceedings dated 20.11.2003. Hence, this writ petition. The petitioner places reliance upon the fact that he was acquitted in C.C. No. 794 of 2000 on the file of the Addl. Judicial Magistrate of First Class, Nizamabad, of charges identical to those in the disciplinary proceedings. He further stated that he had put in thirteen years of unblemished service and on the verge of his retirement he had been visited with the punishment aforestated. The petitioner also adverted to the fact that his appeal had been dismissed without reasons, by way of a cryptic one line order and assailed the manner in which the disciplinary proceedings were conducted. In its counter, the APNPDCL speaking through its Chief General Manager (HRD), Warangal, stated that disciplinary action was taken against the petitioner duly following the procedure. It was further stated that the mere acquittal of the petitioner in the criminal case was of no avail to him as the two proceedings are different in nature. It was accordingly prayed that the writ petition be dismissed. Heard Sri N.Sreedhar Reddy, learned counsel for the petitioner and Mr. P.R.Balarami Reddy, learned Standing Counsel for the APNPDCL. A copy of the judgment passed by the criminal court in CC No. 794 of 2000 is placed on record. A perusal of the same reflects that the Enquiry Officer in the disciplinary proceedings was himself examined as PW-9. Though the criminal proceedings were limited to the alleged misappropriation of a sum of Rs.1,71,124.50 Ps., the examination of the Enquiry Officer led the criminal court to examine all the other aspects which were the subject matter of the disciplinary proceedings. In the course of such examination, the criminal court disagreed with the findings recorded by the Enquiry Officer in his report with regard to the other charges as well. This judgment has become final. In the light of the specific findings recorded by the criminal court which are at variance with the findings recorded by the Enquiry Officer in his report, the judgment of the Supreme Court in G.M.Tank Vs. State of Gujarat and others ([1]) comes into play. The observations of the Supreme Court in this regard are apposite: “…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 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 will apply. We, therefore, hold that the appeal filed by the appellant deserves to be allowed…” In that view of the matter, the disciplinary action taken against the petitioner based on the findings recorded by the Enquiry Officer, which were disbelieved by the competent criminal court, cannot be permitted to stand. As stated by the Supreme Court, such diverse and contradictory findings if permitted to stand and operate in the sphere of the disciplinary proceedings, would not only be unjust and unfair but would be oppressive to the petitioner. The proceedings dated 04.08.2000 removing the petitioner from service and requiring him to repay the sum of Rs.1,71,124.50 Ps., which were confirmed in appeal by a cryptic order dated 20.11.2003, are accordingly set aside. The petitioner is stated to have retired from service in January, 2004. As he was acquitted by the criminal court by its judgment dated 18.04.2003, going by the observations of the Supreme Court in G.M. Tank’s case, he would be entitled to the service benefits from the date of such acquittal. He would, therefore, be entitled to payment of salary from May, 2003 upto the date of his retirement and also to the retirement and pensionary benefits taking into account such service. The writ petition is accordingly allowed but in the circumstances of the case, without costs. __________________ Justice Sanjay Kumar December 3, 2009 MAS. [1] (2006) 5 Supreme Court Cases 446