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2014 DIGILAW 68 (ORI)

Sailendra Nath Mohanty v. Union of India

2014-01-29

M.M.DAS, R.DASH

body2014
ORDER : 29.1.2014 - Heard Mr. Ganeswar Rath, learned senior counsel for the petitioner and Mr. S.D. Das, learned Assistant Solicitor General for the opp. parties. The petitioner has challenged the order dated 19.10.2010 of the learned Central Administrative Tribunal passed in O.A.No. 207 of 2008, by which the said Tribunal dismissed the Original Application filed by the petitioner. The petitioner assailed the disciplinary proceeding initiated against him, the report of the I.O. dated 05.07.2009, the order of punishment dated 26.10.2007 and the order of the appellate authority dated 1/5.02.2008, before the learned Tribunal, seeking quashing of the said orders and the said proceeding as well as claiming consequential financial benefits. Mr. Rath, learned senior counsel for the petitioner urges that the petitioner for the self-same charges was proceeded in a criminal case, in which he was acquitted. On the same set of charges and evidence, the disciplinary authority imposed the punishment of compulsory retirement. According to Mr. Rath, the petitioner having been acquitted of the charges framed against him in the criminal case, he could not have been punished in the disciplinary proceeding. It is a fact that the order of acquittal in a criminal proceeding was passed subsequent to the order of punishment in the disciplinary proceeding. Mr. Rath places heavy reliance on the decision in the case of G.M.Tank v. State of Gujarat and another, AIR 2006 SC 2129 in support of his contention that the Hon'ble Supreme Court in the said case has categorically laid down that where the departmental proceeding and the criminal case are based on identical and similar set of facts and the charge in a departmental case as well as the charge before the criminal Court are one and the same and both dependent on the same set of evidence, it was not just and fair and rather oppressive to allow the findings recorded in the departmental proceeding to stand. Mr. Rath also relies upon a plethora of other judgments of the Hon'ble Supreme Court in support of his aforesaid contention. Mr. Mr. Rath also relies upon a plethora of other judgments of the Hon'ble Supreme Court in support of his aforesaid contention. Mr. S.D.Das, learned Assistant Solicitor General, on the other hand, submits that in the case of Deputy Inspector General of Police and another v. S.Samuthiram, AIR 2013 SC 14 , the Hon'ble Supreme Court taking note of all its earlier judgments, has laid down that mere acquittal of an employee by a criminal Court has no impact on the disciplinary proceeding initiated by the department. Before going to the aforesaid case laws, it would be apt to hold that law has been well settled that the jurisdiction of the superior Courts in interfering with the findings of fact arrived at by the Enquiring Officer is limited and that the High Court would also ordinarily not interfere with the quantum of punishment and there can be no doubt or dispute that only because the delinquent employee, who was also facing a criminal charge and is acquitted, the same, by itself, would not debar the disciplinary authority in initiating a fresh departmental proceeding had already been initiated to continue the same. (See State Bank of Hyderabad v. P. Kata Rao) (2008) 15 SCC 657 . In the aforesaid case, the Hon'ble Supreme Court also held that the legal" principles enunciated to the effect that on the same set of facts, the delinquent shall not be proceeded in a disciplinary proceeding and in a criminal case simultaneously, has, however, been deviated from. The dicta of the Hon'ble Supreme Court in the case of Cap. M. Paul Anthony V. Bharat Gold Mines Ltd. and another (1999) 3 SCC 679 , however, remains unshaken, although the applicability thereof had been found to be dependent on the facts situation obtaining in each case. We, however, find that in the case of Deputy Inspector General of Police and another (supra), that the Hon'ble Supreme Court was considering the case with regard to the proceedings, both departmental and criminal, initiated against the respondent therein, who was an employee of the Armed Reserve and finding that the said respondent belongs to a discipline force, considering the charges levelled against him in the disciplinary proceeding with regard to eve-teasing, though he was acquitted from the criminal case, the Hon'ble Supreme Court allowed the appeal at the instance of the employer by setting aside the judgment of the High Court. In the case of G.M. Tank (supra), the Hon'ble Supreme Court found that reading of both the charges in the departmental proceeding as well as the criminal case clearly showed that both the charges are grounded upon the same set of facts and evidence and also pertains to the known source of income of the accused and the presumption raised that the said amount was obtained by him by illegal and corrupt means. In such back ground, the Hon'ble Supreme Court analysing the enquiry report and the relevant provisions of the service rules as welt as scanning the earlier judgments of the Hon'ble Supreme Court, finding the facts and the evidence in the departmental proceeding as well as criminal proceeding, were the same without there being any iota or difference, came to the conclusion that the appellant G.M. Tank should succeed and, accordingly, quashed the punishment imposed in the disciplinary proceeding against him. Applying the ratio of the aforesaid decision to the facts of the present case, we are of the view that in the instant case also, the charges framed against the petitioner in the disciplinary proceeding and the charges framed against him in the criminal case are grounded on the same set of facts and the same set of evidence. The petitioner having been acquitted in the criminal case, the order of punishment passed in the disciplinary proceeding against him cannot be sustained. No doubt, by the date, the order of acquittal was passed in favour of the petitioner in the criminal case, the disciplinary proceeding was already complete. But, however, this Court finding that allowing the petitioner to be punished in the disciplinary proceeding, even though on the same set of charges, same set of evidence, the criminal Court has acquitted him, would be unjust. It may be mentioned here that the sole allegation against the petitioner was misappropriation of money and the charges in the criminal case was also the same: The criminal charges against the petitioner having failed, it cannot be concluded in the disciplinary proceeding that he has committed misappropriation. In the result; therefore, this Court finds that the impugned judgment of the learned Tribunal is unsustainable and the same is accordingly quashed. The opposite parties are directed to reinstate the petitioner in his previous post. In the result; therefore, this Court finds that the impugned judgment of the learned Tribunal is unsustainable and the same is accordingly quashed. The opposite parties are directed to reinstate the petitioner in his previous post. However, the period for which the petitioner already remained out of service will be treated as to be service period and not a break in service. With regard to arrear salary, the petitioner, having not worked for the said period, will be entitled to 30% of the salary, which he would have received, had he worked during the said period. Such arrear amount shall be paid to him by the opposite parties within a period of six months on being reinstated. The writ application is accordingly allowed. Urgent certified copy of this order be granted as per rules. Application allowed.