D. Khasim Saheb vs Director Of Marketing,
2023 Latest Caselaw 2723 AP

     THE HON'BLE SRI JUSTICE CHEEKATI MANAVENDRANATH ROY

                                    AND

         THE HON'BLE SRI JUSTICE V. GOPALA KRISHNA RAO


                    WRIT PETITION No.23373 of 2003

ORDER:- (Per Hon'ble Sri Justice Cheekati Manavendranath Roy)

       Assailing the order dated 13.03.2003 passed in O.A.No.1819 of

2001 by the Andhra Pradesh Administrative Tribunal at Hyderabad,

whereby the Tribunal dismissed the O.A. confirming the order of the

major penalty imposed against the petitioner of dismissal from

service, the present Writ Petition has been filed by the petitioner.


2.     Heard Sri P.V.V.Satyanarayana, learned counsel for petitioner

and learned Government Pleader for Services-II appearing for

respondent No.1 and learned Standing Counsel for Agriculture

Market Committee appearing for respondent Nos.2 and 3.

3. The petitioner is an employee working as Typist in Agriculture

Market Committee of Nandikotkur in Kurnool District. A Criminal

case was registered against him under Section 409 IPC in crime

No.51 of 1988 of Nandikotkur police station on the ground that he

indulge in the act of misappropriation to a tune of Rs.69,746-80

paise by issuing duplicate forged receipts by forging the signatures of

the other employees.

4. Simultaneously departmental enquiry was also ordered against

him on the same set of facts. In the departmental enquiry that was

conducted against him, the alleged charge framed against him

relating to alleged act of misconduct was held to be proved.

Therefore, major punishment of dismissal from service was imposed

against the petitioner.

5. The petitioner has challenged the said order of imposing major

penalty of dismissal from service before the Tribunal in O.A.No.1819

of 2001. The petitioner challenged the said order of punishment on

the ground that he was acquitted in the criminal case that was

registered on the same set of facts and as such the order imposing

major penalty in departmental enquiry is not sustainable in view of

the said acquittal in the criminal case. But the Tribunal dismissed

the said O.A. on the sole ground that there is delay of two and a half

years in filing the said O.A. According to the Tribunal, the petitioner

was dismissed from service on 25.04.1995 and he was acquitted in

the Criminal case on 07.02.1997 and the revision preferred by the

State against the said acquittal was dismissed by the High Court on

20.11.1998, but the petitioner filed the O.A. on 19.03.2001 with

delay. Therefore, only on the sole ground of delay in filing the said

O.A., the same was dismissed.

6. The said ground on which the Tribunal dismissed the O.A. is

clearly unsustainable under law. Admittedly the departmental

enquiry was ordered on the same set of facts on the basis of which a

criminal case was registered against the petitioner under Section 409

IPC. The allegations both in the departmental enquiry and the said

Criminal Case are one and the same. The said fact is not disputed

by the learned Standing counsel appearing for R2 and R3. He would

fairly concede that the allegations made against the petitioner in the

Criminal Case and in the department enquiry are one and the same

and the very basis for initiating the said criminal prosecution and

the departmental enquiry against the petitioner is one and the same.

7. Now it is significant to note that the petitioner was acquitted in

the said criminal case by the trial Court. It was a clean acquittal.

The revision preferred by the State against the said judgment of

acquittal also came to be dismissed by the High Court. Therefore,

the said judgment of acquittal attained finality.

8. Now it is well settled that when an employee was acquitted in

the criminal case and it is an honourable acquittal, the finding of

guilt recorded against him in the departmental enquiry and imposing

major punishment against him on the basis of the same set of facts

cannot be sustained. The legal position in this regard is no more

resintegra and the same has been well settled. The Supreme Court

in the case of G.M. Tank Vs. State of Gujarat and others1, held in

para No.31 of the judgment as follows:

In our opinion, such facts and evidence in the departmental enquiry as well as criminal proceedings were the same without there being any iota of difference, the appellant should succeed. The distinction of proof between 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.

9. As per the facts of the above cited case also, both the criminal

prosecution and the departmental enquiry were initiated against the

employee therein on the same set of facts and allegations. He was

found not guilty in the criminal case and he was acquitted. But in

the departmental enquiry, he was found guilty and punishment was

imposed against him. When the validity of the said punishment that

was imposed against him in departmental enquiry is questioned, the

apex Court while relying on the earlier judgments held that when

(2006) 5 SCC 446

both the criminal case and the departmental enquiry are initiated on

the same set of allegations and facts and when the employee was

acquitted in the criminal case that the finding of guilt in the

domestic enquiry and the punishment imposed cannot be sustained.

10. In our considered view, the ratio laid down in aforesaid

judgment clearly applies to the facts of the present case. The apex

Court clearly distinguished the other judgments rendered contrary to

the said proposition that the departmental enquiry and the criminal

prosecution stands on a different footing and that they are two

different and separate proceedings end acquittal in the criminal case

ipso facto would not lead to exoneration from the charges framed in

the departmental enquiry.

11. Therefore, in view of the law laid down in the above judgment,

we are of the considered view that the petitioner is also entitled for

exoneration from the charges framed against him and the findings of

the concerned authority finding him guilty for the alleged act of

misconduct and the punishment that was imposed against him,

dismissing him from service is liable to be set aside.

12. Resultantly, this writ petition is allowed, setting aside the

impugned order of the Tribunal. The petitioner shall be reinstated

into service. The petitioner is not entitled to the back wages on the

principle of 'no work, no pay' from the date of his dismissal till the

date of acquittal, but he is entitled to his back wages from the date of

acquittal till the date of reinstatement and the petitioner is also

entitled to all consequential benefits. No costs.

Miscellaneous petitions, if any pending, in the Writ Petition,

shall stand closed.

______________________________________________ JUSTICE CHEEKATI MANAVENDRANATH ROY

___________________________________ JUSTICE V. GOPALA KRISHNA RAO

Date: 02.05.2023 sj

THE HON'BLE SRI JUSTICE CHEEKATI MANAVENDRANATH ROY

AND

THE HON'BLE SRI JUSTICE V. GOPALA KRISHNA RAO

WRIT PETITION No.23373 of 2003

Date: 02-05-2023

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