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2021 DIGILAW 213 (GAU)

Kommik Kadu v. State Of Arunachal Pradesh

2021-03-05

NELSON SAILO

body2021
JUDGMENT Nelson Sailo, J. - Heard Mr. I. Choudhury, learned Senior Counsel assisted by Mr. S. Bishwa Karma learned counsel for the petitioner. Also heard Mr. S. Tapin, learned Senior Govt. Advocate, who appears for all the respondents. 2. It is the case of the petitioner that she was serving in the post of Assistant in the Police Headquarter and attached as Cashier in the Office of the Director General of Police, Itanagar since the year 2013. On 24.12.2009, on the request of Constable A. Keot, the petitioner went to the State Bank of India (SBI), Itanagar and found him to have already reached the SBI and was standing in the cash counter. They encashed the DCR from the cash counter and withdrew an amount of Rs. 12,98,628/-. Constable A. Keot asked her to carry the cash amount in her local bag and accordingly, as instructed, she kept Rs. 98,628/- with her and the remaining amount of Rs. 12 lakhs was kept in the local bag that she brought. Thereafter, Constable A. Keot asked her to leave the Bank and go with one Head Constable D. Das and that he himself would go with one Head Constable M. Reba. Thereafter, when the petitioner and Head Constable D. Das were about to leave the Bank by the official vehicle (Gypsy) bearing registration No. AR-01A 4621, Constable A. Keot suddenly boarded the vehicle stating that Constable M. Reba will not go to office from the Bank and so, the petitioner along with Constable A. Keot and Head Constable D. Das left the Bank with the cash and proceeded towards the Office of the Superintendent of Police (Telecom) [S.P (T)] at Chimpu, Itanagar. 3. On their way back, all three (3) of them went to Akashdeep to have a cup of tea. On reaching the tea-stall, Constable A. Keot asked the petitioner to get down from the vehicle to have tea and that he will take care of the money bag, which was kept in the vehicle. Accordingly, the petitioner went to a bookshop to purchase a pen and thereafter, went to the tea-stall to have tea. Constable A. Keot then asked the petitioner where the money bag was and to which, the petitioner said that the same was kept inside the vehicle under his care. Accordingly, the petitioner went to a bookshop to purchase a pen and thereafter, went to the tea-stall to have tea. Constable A. Keot then asked the petitioner where the money bag was and to which, the petitioner said that the same was kept inside the vehicle under his care. Both the petitioner and Constable A. Keot then went to the vehicle and found the money bag missing. Despite all efforts, they could not find the money bag and therefore, the petitioner informed the police over telephone about the incident and soon after, lodged an FIRon 24.02.2009 itself before the Officer-in-Charge (O/C), Itanagar Police Station. Accordingly, Itanagar P.S Case No. 219/2009 under Section 379 IPC was registered and the Itanagar Police arrested the petitioner and Constable A. Keot and Head Constable D. Das. The petitioner was then released on bail by the Judicial Magistrate, First Class, Itanagar on 27.12.2009. Because of the incident, the petitioner was placed under suspension by the S.P (T) vide order dated 24.12.2009 with immediate effect. 4. After the petitioner was suspended, the S.P (T) on 05.08.2011 lodged two (2) FIRs before the O/C, Itanagar Police Station. In the first FIR, it was alleged that the petitioner while working as Cashier in the Office of the S.P (T) failed to deposit VAT/Entry Tax amounting to the Rs. 25,42,082/-, which was deducted from various firms and that the amount was to be deposited in Government accounts through Treasury Challan. Accordingly, Itanagar P.S Case No. 183/2011 under Section 403/408/409 IPC was registered. 5. In the second FIR, which was also dated 05.08.2011, it was alleged that an amount of Rs. 2,29,873/- was entered in the cash book as having been paid to M/S Arunachal Agency House but the amount was not received by the said firm as per intimation letter dated 05.08.2011. Accordingly, Itanagar P.S Case No. 184/2011 under Section 409 IPC was registered. Pursuant to the filing of the two (2) FIRs, the petitioner was arrested on 05.08.2011 but was released on bail by the Judicial Magistrate, First Class, Itanagar vide order dated 06.08.2011. 6. The petitioner was then served with a Memorandum of Charge dated 30.12.2011 wherein at Article-I, it was stated that the petitioner while being attached to the Office of S.P (T) and functioning as Cashier realized VAT/Entry Tax from various firms amounting to Rs. 6. The petitioner was then served with a Memorandum of Charge dated 30.12.2011 wherein at Article-I, it was stated that the petitioner while being attached to the Office of S.P (T) and functioning as Cashier realized VAT/Entry Tax from various firms amounting to Rs. 25,42,082/- during the period from January to December, 2009 and the amount so realized were not deposited in the Ex-Chequer of the Government and was misappropriated by her. Her action/inaction therefore amounted to gross dereliction of duty and gravest misconduct, making her liable to be proceeded with departmentally under Rule 14 of the CCS (CCA) Rules, 1965. Under Article-II, it was stated that the petitioner while being attached to the Office of the S.P (T) and functioning as Cashier, one (1) firm i.e., M/S Arunachal Agency House was asked to supply WT items to the office amounting to Rs. 2,38,859/-. After supplying the WT items, the firm submitted a bill dated 03.06.2009 amounting to Rs. 2,29,873/- after deducting Rs. 9,186/- towards VAT/Entry Tax. The bill was drawn by the petitioner but she did not make payment of the money to the firm. She made false entry in the cash book of having made the payment and thereby, misappropriating the amount. The act of the petitioner amounted to gross dereliction of duty, dishonesty in bona fide official duty, which constitutes gross dereliction of duty and gravest misconduct on her part. By the said memorandum, the petitioner was given ten (10) days time to submit a written statement in her defense and also to state whether she desired to be heard in person. 7. Against the Memorandum of Charge dated 30.12.2011, the petitioner submitted her written statement on 11.01.2012 denying the charges. In respect of Article-I of the charge, the petitioner stated that from the month of January, 2009 up to 24th December of the same year, a total amount of Rs. 22,55,452/- was realized from VAT/Entry Tax from various firms and not Rs. 25,42,082/- as mentioned in Article-I. Out of Rs. 22,52,452/-, a sum of Rs. 8,22,424/- had been deposited in the Government Ex-Chequer through Treasury Challan dated 11.01.2010 and Rs. 3,10,550/- was handed over to Constable A. Keot on 23.12.2009 for Treasury Challan deposit and that till date, Treasury Challan for the said amount has not been returned to the petitioner. 25,42,082/- as mentioned in Article-I. Out of Rs. 22,52,452/-, a sum of Rs. 8,22,424/- had been deposited in the Government Ex-Chequer through Treasury Challan dated 11.01.2010 and Rs. 3,10,550/- was handed over to Constable A. Keot on 23.12.2009 for Treasury Challan deposit and that till date, Treasury Challan for the said amount has not been returned to the petitioner. Constable A. Keot otherwise wrote in the Treasury duty register that the amount had been deposited on 23.12.2009. As for the rest of the amount of Rs. 12 lakhs, the same was lost near Akashdeep in Itanagar on 24.12.2009 and for which, departmental enquiry was under process. 8. In respect of Article-II, the petitioner stated that the bill amounting to Rs. 2,29,873/- in respect of M/S Arunachal Agency House, it had been drawn along with various other firms during the month of March, 2008. The same was drawn when the petitioner was on leave w.e.f 21.11.2009 to 15.12.2009. During the leave period of the petitioner, Head Constable G. Pandey had taken the charge as Cashier. As per the records of AC bills payment register, the amount of Rs. 2,29,873/- had been paid to the said firm. The petitioner without properly going through the payment voucher wrongly made an entry in the cash book as the amount had been paid. Subsequently, when it was found that the amount was not actually paid to the firm, the petitioner included the same in the unpaid list, which was also scrutinized by the staff of the department. All the transactions was done by Head Constable G. Pandey and on his insistence, the bill of the said firm was deferred. The petitioner was thereafter on leave and in her absence, Head Constable G. Pandey took charge of Cashier. 9. Thereafter, vide order dated 19.11.2012, Sh. J.S Yadav, Deputy S.P (PROVN), Police Headquarter, Itanagar was appointed as Enquiry Authority to enquire into the charges framed against the petitioner. After the enquiry was concluded, the petitioner was asked to submit her defense statement against the enquiry report dated 17.06.2013 submitted by the Enquiry Officer and which was forwarded to her vide Office Memorandum dated 08.08.2013. The petitioner on 18.08.2013 submitted her written statement of defense. After the enquiry was concluded, the petitioner was asked to submit her defense statement against the enquiry report dated 17.06.2013 submitted by the Enquiry Officer and which was forwarded to her vide Office Memorandum dated 08.08.2013. The petitioner on 18.08.2013 submitted her written statement of defense. However, the respondent authorities concerned not being satisfied with the written statement of defense issued show cause notice dated 08.08.2014 to the petitioner to show cause as to why she should not be dismissed from service in view of the charges made against her having been proved. The petitioner then on 28.08.2014 submitted her reply to the show cause notice. However, the disciplinary authority not being satisfied with the show cause reply, dismissed her from service with immediate effect vide order dated 18.09.2014 (Annexure-XVI). 10. Being aggrieved, the petitioner approached this Court by filing WP(C) No. 354(AP)/2014. The writ petition was disposed of vide order dated 24.09.2014 by granting liberty to the petitioner to file a Review Petition before the appropriate authority. The petitioner then filed a Review Petition before the Director General of Police but the same came to be dismissed by the said authority vide order dated 18.12.2014 (Annexure-XXI). The petitioner also filed an appeal before the Director General of Police, which was also rejected by the said authority vide order dated 13.01.2015. Thus being aggrieved, the petitioner is again before this Court through the instant writ petition. 11. It may be mentioned herein that in respect of the loss of Rs. 12,98,620/- which was withdrawn from the SBI, Itanagar was concerned, a departmental enquiry was ordered vide order No. PHQ/DP100/2009 dated 05.02.2010 and one Sh. D.P. Dutta, Addl. Superintendent of Police (City), Itanagar was appointed as Inquiry Authority to enquire into the charge. The Inquiry Officer thereafter submitted the enquiry report with the charges found to be proved. After the petitioner was given a chance to submit her representation and the same was not found to be acceptable, the Deputy Inspector General of Police (HQ) vide order dated 14.03.2013 imposed a penalty of withholding 5 years of service increments with cumulative effect upon the petitioner. It was further directed that the entire Rs. 12 lakhs to be recovered from the petitioner by deducting 50% of her gross salary per month. It was further directed that the entire Rs. 12 lakhs to be recovered from the petitioner by deducting 50% of her gross salary per month. The order of suspension dated 02.02.2010 stood revoked and the period of suspension up to the date of the order imposing the penalty was directed to be treated as period not spent on duty after all intent and purpose. This order however is not challenged by the petitioner. 12. Mr. I. Choudhury, learned Senior Counsel submits that the allegation and the charges against the petitioner in the two (2) FIRs dated 05.08.2011 and the Memorandum of Charge dated 30.10.2011 were identical and similar. While the criminal investigation was being conducted, the respondent authorities also proceeded against the petitioner by drawing departmental proceeding without waiting for the outcome of the criminal investigation. In response to the Memorandum of Charge, the petitioner submitted his written statement of defense denying all the charges leveled against her. He submits that the petitioner in her written statement of defense stated that during her tenure and while functioning as Cashier from January, 2009 to 24thDecember, 2009, the total amount of realized VAT/Entry Tax from various firms was Rs. 22,52,452/- and not Rs. 25,42,082/-. Further, out of the said total realized amount of Rs. 22,52,452/-, a sum of Rs. 8,22,424/- was deposited in the Government Ex-Chequer through Treasury Challan and that Rs. 3,10,550/- had been handed over to Constable A. Keot for Treasury Challan deposit but the receipt of Challan deposit was not handed over to her. As for the remaining amount, the same was lost near Akashdeep in Itanagar and for which, departmental enquiry was under process. The learned Senior Counsel submits that as for the Article-II of the Memorandum of Charge, the petitioner had stated that as per records of AC bill payment register made by Head Constable G. Pandey, the amount had been shown as paid in the cash book in respect of the firms, including M/S Arunachal Agency House. Later on, the mistake committed was detected at the time of audit and it was corrected as not having been actually paid to the firm. Therefore, the amount of Rs. 2,29,873/- having not been paid to M/S Arunachal Agency House, the firm was to be paid by the department. Later on, the mistake committed was detected at the time of audit and it was corrected as not having been actually paid to the firm. Therefore, the amount of Rs. 2,29,873/- having not been paid to M/S Arunachal Agency House, the firm was to be paid by the department. The learned Senior Counsel further submits that in order to make an effective defense, the petitioner on various occasion had requested for certain documents, such as AC bill payment register and Bank duty register 2007-2008. However, the respondent authorities could not provide her the same and informed her that the AC bill register and the Bank duty register had been seized by the O/C, Itanagar Police Station. He submits that for this reason, the petitioner was denied of the opportunity to put up an effective defense or to clarify the charges leveled against her. 13. Mr. I. Choudhury, learned Senior Counsel submits that the Enquiry Officer consequently vide the Enquiry Report dated 17.06.2013 on the basis of the statements made by the prosecution witnesses came to the finding that both the Articles of Charge framed against the petitioner were proved. The learned Senior Counsel by referring to the Final Report submitted by the case I/O, which is annexed to the rejoinder filed by the petitioner submits that the allegation of misappropriation of Rs. 25 lakhs made against the petitioner could not be established and therefore, the case I/O prayed for exoneration of the petitioner from all the charges. He submits that such conclusion was made after minutely examining all the relevant documents which were seized during the investigation. The Court of Chief Judicial Magistrate accordingly vide order dated 15.11.2016 closed the case against the petitioner on the basis of the Final Report. He submits that since the charges against the petitioner in the criminal investigation and in the departmental proceeding are identical and similar in all respects, the impugned order dismissing the petitioner from service cannot be sustained. He submits that in a departmental proceeding, charge can be proved on preponderance of probabilities whereas, in a criminal proceeding, the charge have to be proved beyond reasonable doubt. Criminal investigation having been concluded in the favor of the petitioner, the departmental proceeding which ended in the dismissal of the petitioner therefore cannot be sustained. He submits that in a departmental proceeding, charge can be proved on preponderance of probabilities whereas, in a criminal proceeding, the charge have to be proved beyond reasonable doubt. Criminal investigation having been concluded in the favor of the petitioner, the departmental proceeding which ended in the dismissal of the petitioner therefore cannot be sustained. He submits that the impugned order of dismissal may be interfered with by this Court and the respondents be directed to reinstate the petitioner with full back wages. In support of his submissions, the learned Senior Counsel relies upon the following authorities:- (i) Union of India and Others vs- J. Ahmed, (1979) AIR SC 1022 (ii) Girish Chandra Sarmah vs- Bongaigaon Refinery and Petrochemicals Ltd. and Others, (2006) 1 GauLT 235 (iii) State of Punjab and Others vs- Ram Singh, (1992) 4 SCC 54 (iv) Union of India vs- H.C Goel, (1964) AIR SC 364 (v) Siddharth Mohanlal Sharma vs- South Gujarat University, (1982) GLH 648:Manu/GJ/0200/1981 (vi) Capt. M. Paul Anthony vs- Bharat Gold Mines Ltd. and Another, (1999) 3 SCC 679 (vii) M.V. Bijlani vs- Union of India and Others, (2006) 5 SCC 88 (viii) G.M. Tank vs- State of Gujarat and Others, (2006) 5 SCC 446 14. Mr. S. Tapin, learned Senior Govt. Advocate on the other hand submits that the petitioner at no point of time has disputed about her detailment to withdraw and transport the cash amount from the SBI, which was reported to be lost. He submits that the petitioner herself in her written statement of defense submitted on 11.1.2012 have clearly indicated that the four (4) AC bills for the period 2008- 2009 was deposited between 23.12.2009 to 11.06.2011 with a total amount of Rs. 26,07,080/-. The petitioner was placed under suspension vide order dated 24.12.2009 with immediate effect and subsequently was reinstated vide order dated 14.03.2013 and therefore, the amount said to have been deposited by the petitioner undisputedly was during her suspension period and which goes to show that she had failed to deposit the amount in the Government Ex-Chequer. Therefore, this clearly goes to show that the petitioner had misappropriated Government money. 15. Mr. S. Tapin, learned Senior Govt. Therefore, this clearly goes to show that the petitioner had misappropriated Government money. 15. Mr. S. Tapin, learned Senior Govt. Advocate also submits that all the relevant materials by which the charge against the petitioner was sought to be established had been furnished to her and that the same has also clearly been indicated in the Memorandum of Charge. He submits that due opportunity was granted to the petitioner to defend herself and that it was after making a thorough enquiry that the Enquiry Officer found the charge against the petitioner to have been proved. Consequently, the disciplinary authority in view of the findings made by the Enquiry Officer decided to impose a penalty of dismissal from service upon the petitioner. He submits that conclusion made by the respondent authorities being based on finding of fact, this Court in exercise of its writ jurisdiction may not interfere with the same as an appellate authority. He also submits that the test for establishing the case against the delinquent officer in a departmental proceeding is preponderance of probability while the requirement in a criminal proceeding is to prove the charge beyond reasonable doubt. Therefore, merely because the criminal investigation ended in Final Report, the petitioner cannot claim to be absolved from the charges framed against her in the departmental proceedings. The learned Senior Govt. Advocate in order to substantiate his submissions relied upon the following authorities:- (i) B.C. Chaturvedi vs- Union of India and Others, (1995) 6 SCC 749 (ii) R.S Saini vs- State of Punjab and Others, (1999) 8 SCC 90 (iii) State of Bikaner and Jaipur vs- Nemi Chand Nalwaya, (2011) 4 SCC 584 (iv) State of Karnataka and Others vs- N. Gangaraj, (2020) 3 SCC 423 16. I have heard the submissions made by the learned counsels for the rival parties and I have also perused the materials available on record, including the departmental records produced by the learned Senior Govt. Advocate. 17. From the case projected by the petitioner, the issue to be considered and decided is as to whether in the given facts and circumstances of the case, the impugned orders dated 18.09.2014, 18.12.2014 and 13.01.2015 can be sustained. Advocate. 17. From the case projected by the petitioner, the issue to be considered and decided is as to whether in the given facts and circumstances of the case, the impugned orders dated 18.09.2014, 18.12.2014 and 13.01.2015 can be sustained. The petitioner in her written statement of defense submitted by her on 11.01.2012 against the Memorandum of Charge stated that she did not misappropriate a single penny and that she did not commit gross dereliction on her duty nor did she commit gravest misconduct. She stated that during January, 2009 to 24th December, 2009, she was functioning as Cashier and the total amount of VAT/Entry Tax realized from various firms was Rs. 22,52,452/- and not Rs. 25,42,082/-. Out of the VAT/Entry Tax realized, a sum of Rs. 8,22,424/- was deposited in the Government Ex-Chequer through Treasury Challan and Rs. 3,10,550/- was handed over to Constable A. Keot for Treasury Challan deposit but he did not give her the Challan deposit receipt. As for the remaining amount, the same was lost near Akashdeep in Itanagar. In respect of the charge against Article-II, she stated that the bill amount payable to the firms concerned had been drawn in the month of March, 2009 and as per the records of AC bill payment register made by Head Constable G. Pandey, the amount was shown as paid in the cash book although payment actually had not been made. The same was detected at the time of audit inspection and thereafter rectified by showing the amount to be unpaid, particularly in respect of M/S Arunachal Agency House, Naharlagun, which was for an amount of Rs. 2,29,873/-. The petitioner in her state of defense in response to the letter given to her by the Enquiry Officer on 08.05.2013 also made similar defense statements. In response to the statements made by the prosecution witnesses, more particularly Sh. Ganesh Pandey, the petitioner stated that she had already deposited the VAT amount to the tune of Rs. 26,07,080/-, which included the amount shown in the four (4) AC bills. In respect of Sh. A. Keot, Constable, the petitioner stated that a detailed enquiry was required as some of the Treasury Challan was deposited by him but the voucher of such Treasury Challan had not been produced nor shown to her. He was therefore liable to answer for the amount which was handled by him. 18. In respect of Sh. A. Keot, Constable, the petitioner stated that a detailed enquiry was required as some of the Treasury Challan was deposited by him but the voucher of such Treasury Challan had not been produced nor shown to her. He was therefore liable to answer for the amount which was handled by him. 18. The Enquiry Officer then submitted his Enquiry Report concluding that as per the statements of PW Nos. 1 -4, it was proved that the petitioner realized VAT/Entry Tax from various firms against AC Bills No. 711/08-09, 732/08-09 and 733/08-09 amounting to Rs. 25,42,082/-. However, misappropriated amount was Rs. 23,81,558/- as Rs. 79,007/- was deducted through Treasury Challan and Rs. 81,847/-, which was received from the petitioner was also deducted through Treasury Challan. While the aforesaid AC bills were the basis of establishing the charge against the petitioner, the petitioner on the other hand was not furnished the information sought by her through RTI application, which included the details of the AC bills in question. The reason for not making the information available to her according to the authority concerned was that the bill register 2005-2009 on supply and materials was seized by the O/C, Itanagar Police Station. Likewise, the Bank duty register 2007- 2008 was also seized. Therefore, without furnishing the information and materials demanded by the petitioner, the enquiry concluded with a finding by the Enquiry Officer that the charges against the petitioner were proved. 19. As already stated herein above, besides the departmental proceedings drawn against the petitioner, the criminal investigation was also initiated at the same time. The Investigating Officer on 25.05.2016 submitted the Final Report before the Court of Chief Judicial Magistrate, Itanagar, Capital Complex. The report indicates that four (4) bills, the description of which has been mentioned were seized from the Office of the S.P (T). As many as six (6) prosecution witnesses were cited for examination. It may be noticed that at least three (3) of the witnesses cited in the Final Report were also examined during the departmental proceedings. The Investigating Officer also observed that during the investigation, it was revealed that the entire fund received from the Government was converted into DCR and kept in SBI, Itanagar. It may be noticed that at least three (3) of the witnesses cited in the Final Report were also examined during the departmental proceedings. The Investigating Officer also observed that during the investigation, it was revealed that the entire fund received from the Government was converted into DCR and kept in SBI, Itanagar. The Account Branch of S.P (T) Office was allowed to withdraw only the amount payable to supplier/firms, excluding VAT amount and therefore, the VAT amount remains in DCR only. Further, to draw any amount from the DCR, it requires an authority letter signed by the Withdrawal and Disbursing Officer (DDO) or Head of Office and that there is no such record available in the file which reflects that the alleged accused has misappropriated the amount after withdrawal from the Bank. Further, the investigation reveals that the petitioner along with two (2) other staffs from the S.P (T) Office went to SBI, Itanagar and withdrew a sum of Rs. 12 lakhs in order to deposit into the Treasury, out of which Rs. 11,19,481/- was meant for VAT deposit into the Treasury and the rest of the amount i.e., Rs. 80,519/- was meant for payment to other firms. But on the way back to S.P (T) Office, the cash amount of Rs. 12 lakhs, which was kept in the police vehicle was stolen away from Akashdeep market, Itanagar. Since the amount of Rs. 11,19,481/-, out of the stolen amount and Rs. 8,22,424/-, which was deposited into the Government Ex-Chequer through five (5) copies of Treasury Challan, which were enclosed in the Final Report added up to a sum total sum of Rs. 19,41,902/-, there was no embezzled amount but rather there was excess deposit of three (3) rupees. However, before submission of Final Report, four (4) officers of the Office of the S.P (T), including the S.P himself were examined and asked to clarify this aspect but they could not give specific reason as to how the alleged misappropriated amount is higher than the actual deducted amount. Therefore, under the circumstances, the Investigating Officer concluded that the allegation of misappropriation of Rs. 25 lakhs by the petitioner could not be established. He therefore prayed for exoneration of the petitioner from all the charges. The Final Report was thereafter submitted before the Court of Chief Judicial Magistrate, Capital Complex at Yupia and vide order dated 15.11.2010, the case was closed. 25 lakhs by the petitioner could not be established. He therefore prayed for exoneration of the petitioner from all the charges. The Final Report was thereafter submitted before the Court of Chief Judicial Magistrate, Capital Complex at Yupia and vide order dated 15.11.2010, the case was closed. No materials have been brought on record to show that further process has been initiated against the petitioner after the criminal investigation has been closed in Final Report in the above manner. 20. As already noticed in the preceding paragraphs, the charges/allegations made against the petitioner in the two (2) FIRs, both dated 05.08.2011 and the two (2) Articles of charge specified in the Memorandum of Charge dated 30.12.2011 are identical and one and the same. The Investigating Officer in the criminal investigation as can be seen from the Final Report had meticulously examined all the relevant files and the prosecution witnesses in order to find out the truth about the allegations against the petitioner. However, the allegations against the petitioner despite examining all the relevant materials could not be established. 21. The Apex Court in the case of Capt. M. Paul Anthony (supra) while observing that the proceedings in a criminal case and the departmental proceedings operate in distinct and different jurisdictional areas held that there can be an exception where the departmental proceedings and the criminal case are based on the same set of facts and the evidence in both the proceedings is common without there being a variance. The Apex Court also took into account its earlier decision in Delhi Cloth & General Mills Ltd. -vs- Kushal Bhan, (1960) AIR SC 806, wherein it was held that if the case is of a grave nature or involves questions of fact or law, which are not simple, it would be advisable for the employer to await the decision of the trial court, so that the defense of the employee in the criminal case may not be prejudiced. In the present case, the respondent authorities did not wait for the criminal investigation to come to its logical conclusion but not only proceeded to hold the departmental proceedings but concluded the same. All the relevant materials on records during the investigation had been seized but the investigation ended in a Final Report with a conclusion that the charges cannot be established. In such circumstances, as held by the Apex Court in Capt. All the relevant materials on records during the investigation had been seized but the investigation ended in a Final Report with a conclusion that the charges cannot be established. In such circumstances, as held by the Apex Court in Capt. M. Paul Anthony (supra), when the case against the petitioner cannot be established in a criminal proceeding, it would be unjust, unfair and rather oppressive to allow the findings in the departmental proceedings to stand. 22. In the case of M.V. Bijlani (supra), the Apex Court held that the jurisdiction of the court no doubt in a judicial review is limited. However, departmental proceeding being quasi-criminal in nature, there should be some evidences to prove the charge. Although the charges in a departmental proceedings are not required to be proved like a criminal trial with proof beyond any reasonable doubt, it cannot be lost sight of the fact that the Enquiry Officer performs a quasi-judicial function, who upon analyzing the documents must arrive at a conclusion that there had been a preponderance of probability to prove the charges on the basis of materials on record. While doing so, he cannot take into consideration any irrelevant fact and nor can he enquire into the allegations with which the delinquent officer had not been charged with. As may be noticed in the present case, the charges against the petitioner, both in the departmental proceedings and in the criminal investigation are one and the same and after a detailed criminal investigation, the test of which is much stricter than those of departmental proceedings, the charges could not be established against the petitioner. 23. The Apex Court in the case of Union of India and Others vs- J. Ahmed (supra) held that there may be negligence in performance of duty and a lapse in performance of duty or error of judgment in evaluating the developing situationbut the same would not constitute misconduct unless the consequences directly attributable to negligence would be such as to be irreparable or the resultant damage would be so heavy that the degree of culpability would be very high. Misconduct means, misconduct arising from ill motive; acts of negligence, errors of judgment, or innocent mistake do not constitute such misconduct. 24. Misconduct means, misconduct arising from ill motive; acts of negligence, errors of judgment, or innocent mistake do not constitute such misconduct. 24. Thus, upon due consideration of the matter in its entirety, I am of the considered view that the present case falls under the exception carved out by the Apex Court in Capt. M. Paul Anthony (supra). Having come to such finding, it will not be necessary to dwell upon the other authorities relied upon by the learned counsels for the rival parties. In the result, I find merit in the writ petition and the impugned orders dated 18.09.2014 (Annexure-XVI), 18.12.2014 (Annexure-XXI) and 13.01.2015 (Annexure-XXII) are hereby set aside. The respondents are directed to reinstate the petitioner back into service. However, considering the nature of the allegations and also the role and responsibilities of the petitioner as cashier in the establishment concerned, the petitioner shall not be entitled to any back wages. 25. With the above observations and directions, the writ petition stands disposed of. No cost.