Unknown vs Ministry Of Social Justice & ...
2021 Latest Caselaw 122 UK

                                              Reserved Judgment


 IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

           Writ Petition (S/S) No.1977 of 2019

Ramesh Chand Kashyap S/o Hanuman Prasad Kashyap
R/o C-60 NIVH Campus, Rajpur Road, Dehradun

                                                ...... Petitioner

                              versus

1. Ministry of Social Justice & Empowerment through its
   Secretary
2. Director,   National    Institute for the   Visually
   Handicapped, Rajpur Road, Dehradun
3. Director, Pandit Deendayal Upadhyaya National
   Institute for Persons with Physical Disabilities
   (Divyangjan)

                                             ...... Respondents


Present:
Mr. Ram Prasad, Advocate for the petitioner
Mr. Arvind Vashistha, Senior Advocate assisted by Mrs. Monika Pant,
Advocate for the respondent.


                         JUDGMENT

Hon'ble Lok Pal Singh, J.

By means of present writ petition, petitioner has sought the following reliefs:-

(i) Issue a writ, order or direction quashing the penalty order dated 12.03.2019 passed by respondent no.3 and the order dated 03.07.2019 passed by Under Secretary of the office of respondent no.1.

(ii) Issue directions commanding the respondents to immediately reinstate the petitioner in service.

(iii) Issue directions commanding the respondents to provide all the consequential benefits including the arrear of pay during the period from 23.05.2018 to the date of reinstatement the petitioner in service.

2. Brief facts of the case, as culled out from the writ petition, are that the petitioner was appointed as music teacher in National Institute for the Visually Handicapped at Dehradun, now called as National Institute for the Empowerment of Persons with Visual Disabilities (hereinafter to be referred as the NIEPVD) in the year 2005. On 05.04.2018, a complaint was submitted before the Principal, Model School for Visually Handicapped by a student of class VII (name withheld) stating that he has been molested by the petitioner on 05.03.2018 in 3rd period. The complainant alleged that he has been often going to the petitioner's class even when it was not his music period. On the aforesaid date, he was all alone with the petitioner missing his sports period. He alleged that the petitioner tried to sodomize him before this also in train when the students and the petitioner were returning from Jaipur on 13.02.2018. He shared the incident of molestation with his senior students. He also stated that the petitioner has molested his one other classmate also in the month of February. On receiving the complaint, the Principal reported the same to the second respondent on 06.04.2018. On the information so received from the Principal NIEPVD, the second respondent, vide an office order dated 09.04.2018, appointed Shri Virendra Singh, Braille Development Officer, as Inquiry Officer to enquire into the matter and submit the report within a week's time.

Thereafter, the Inquiry Officer, issued a letter dated 10.04.2018 to the petitioner to appear before him on 11.04.2018. During the course of enquiry, the petitioner was apprised about the allegations levelled against him, which was denied by the petitioner. Before the inquiry officer, petitioner submitted that the complaint has been lodged at the instigation of some other person with some ulterior motive. The inquiry officer submitted the preliminary enquiry report on 08.05.2018 observing that prima facie the allegations made against the petitioner are found true. Thereafter, the petitioner was served with a charge-sheet dated 22.05.2018 wherein following two charges were levelled against him:-

  (i)    That Master Aditya Bhargra, a student of class
         VII    complained       that     Shri   Ramesh       Chand

Kashyap, Music Teacher, molested him on 5th March, 2018. The said student has further alleged that Mr. Kashyap had earlier also tried to sodomize him in train when he was returning with students from Jaipur on 13th Feb 2018. Master Aditya Bahgra also mentioned in his complaint that Shri Ramesh Chand Kashyap has molested Master Deepanshu Palival, his classmate also, in the month of February, 2018. Master Deepanshu has himself mentioned about his molestation in his note dated 06.04.2018. That the petitioner has failed to maintain absolute integrity, devotion to duty and also acted in a manner is unbecoming of a public servant in contravention of Rule 3(1)(i), 3(1)(iii) of the CCS (Conduct) Rules, 1964.

(ii) That Shri Ramesh Chand Kashyap, Music Teacher called Master Aditya Bhagra on 5th

March, 2018 in 3rd period when Mr. Kashyap molested the said student. As the 3rd period for Class VI students was for sports, calling the said student to his room for music session unauthorisedly without permission of the sports teacher or the Principal, demonstrates that Mr. Kashyap had malafide intention of molesting this student when the other students were not around as they had gone to attend sports class. Therefore, Mr. Ramesh Chand Kashyap has acted in a manner which is unbecoming of a public servant and thereby contravened provisions of Rules 3(1)(i), 3(1)(iii) of the CCS (Conduct) Rules, 1964.

3. After serving the charge-sheet, the petitioner was placed under suspension by the second respondent vide order dated 23.05.2018 and thereafter the disciplinary proceedings were commenced. On the selfsame day, in WPPIL No.07 of 2016, in the case of Shivangi Gangwar vs. State of Uttarkhand, the Division Bench of this Court, vide judgment and order dated 23.05.2018, issued certain directions to the State Government, including the one to put Mr. Ramesh Chand Kashyap, Music Teacher, Visually Handicapped, 116 Rajpur road, Dehradun, under suspension forthwith and to commence Disciplinary Proceedings against him for violating the human rights and dignity of the child of the School and to conclude the same within three months. A further direction was issued to the Director General of Police, State of Uttarakhand to register FIR against the petitioner under POCSO Act and Indian Penal Code and to conclude the inquiry and investigation

within three weeks from today and thereafter to put the Challan in the Court of Law. Thereafter, on 24.05.2018, one Shri Suresh Uniyal of "bachpan bachao andolan" submitted a written report to the In-charge Polcie Station Rajpur, Dehradun to lodge a report against the petitioner, on the basis whereof, FIR was lodged against the petitioner under Section 5/6 of the POCSO Act.

4. Pursuant to the charge memo dated 22.05.2018, petitioner submitted his reply/written statement on 26.05.2018. In the written statement, he denied all the charges and stated that charges itself are full of contradiction. He stated that besides the departmental inquiry, one other inquiry is also being conducted against him by the Government under the orders of this Court, on similar charges, thus, he prayed that the departmental inquiry should be stopped. Pursuant to the FIR lodged by Suresh Uniyal, the petitioner was arrested by the police on 04.06.2018. In criminal proceeding, on completion of investigation, charge-sheet was submitted in the court and the trial begun.

5. Thereafter, the second respondent, by two separate orders passed on dated 20.06.2018, appointed Smt. Daljeet Kaur, Principal, Patrician College, Rajpur Road, Dehradun and Smt. Neeraj Gandhi, as the Inquiry Officer and the Presenting Officer, respectively. On 19.07.2018, the Inquiry Officer issued notices to the witness, requiring their appearance as state witnesses. On the other side, on completion of trial, the trial court, vide judgment and order dated 28.09.2018, acquitted the petitioner from the charges levelled against him.

After acquittal, the suspension order of the petitioner was revoked vide order dated 09.10.2018.

6. It is stated that on 12.10.2018 the petitioner received a letter issued by Shri K.G. Gupta, wherein it was stated that he was appointed as Inquiry Officer vide office order dated 19/20.07.2018 by the Director, NIEPVD and that the petitioner has chosen not to accept any communication regarding this inquiry and have not participated in the enquiry proceedings. Petitioner was given time by 23.10.2018 to submit his written brief of defence in the matter and it was stated that in the absence of any defence brief from the petitioner, the Inquiry Officer would be constrained to finalize the report in the matter. In response to the letter dated 12.10.2018, petitioner submitted his representation dated 18.10.2018 stating that he has been acquitted by the trial court vide judgment dated 28.09.2018.

7. After revocation of suspension order and rendering the service for about one month, the petitioner was again placed under suspension vide order dated 22.11.2018. Thereafter, the petitioner was served with a notice dated 01.02.2019 issued by the ad-hoc disciplinary authority inter alia stating therein that the petitioner did not participate either in the preliminary hearing or in the regular proceedings despite repeated summon issued to him and as such the Inquiry Officer Shri K.G. Gupta conducted the inquiry ex-parte and in the inquiry report observed that the articles of charge levelled against the petitioner are fully established. The inquiry report was submitted before the disciplinary authority. On receipt of report, the ad-hoc disciplinary

authority issued a notice dated 01.02.2019 to the petitioner calling his written representation or submission within 15 days. Petitioner submitted his detailed reply dated 15.02.2019 before the Ad-hoc Disciplinary Authority/Director, stating that he had already submitted a detailed representation/reply dated 26.05.2018 in response to the charge memo dated 22.05.2018. He further stated that despite knowing the fact that the petitioner is in jail and is not able to participate in the departmental inquiry, the Inquiry Officer continued the said inquiry and issued a number of summons through Jailor to the applicant to appear before him to participate in the departmental inquiry. He also stated in the criminal case no.67/2018 under section 377, 511 of IPC and under Section 5/6 of POCSO Act 2012 registered against the petitioner on same allegations, he has been acquitted by the trial court. After acquittal, the departmental inquiry, on the same set of charges, is not sustainable in the eyes of law. He also stated that the departmental proceedings were conducted at the back of the petitioner without affording him a reasonable opportunity of hearing. Vide order dated 12.03.2019, third respondent i.e. the Ad-hoc Disciplinary Authority, held that the charges stand established against the petitioner and accordingly imposed a penalty of 'removable from service with immediate effect' upon the petitioner. There-against, the petitioner preferred an appeal before the appellate authority, which was dismissed by the Under Secretary to the Government of India, vide order dated 03.07.2019.

8. Being aggrieved by the orders dated 12.03.2019 and 03.07.2019, petitioner has filed the present writ petition on the following main grounds:-

a. The complaint so received by the Principal was submitted on the instructions of Suchit Narang, who was appointed in the Institute as music teacher on temporary basis, and who had personal grudge with the petitioner. It is contended that he (Suchit Narang) himself is also facing trial in POCSO Court, Dehradun, for the charges of molestation of girl students.

b. That on the basis of same set of charges, criminal case was also lodged against the petitioner wherein on completion of evidence and trial, he has been acquitted by the trial court beyond reasonable doubt for the charges levelled against him. It is contended that after acquittal of the petitioner in the said criminal case, the departmental proceedings cannot be proceeded with. c. Besides this, it is also contended that ex- parte inquiry proceedings were carried out by the department without affording reasonable opportunity of hearing to the petitioner. d. That two inquiry officers one Smt. Daljeet Kaur and second Shri K.G. Gupta were appointed as evident from the letters dated 19.07.2018 and 12.10.2018. It is contended that Shri K.G. Gupta cannot be appointed as inquiry officer to inquire under the CCS (CCA) Rules 1965 being a retired employee of O.N.G.C. As such the inquiry report submitted

by Shri K.G. Gupta is unsustainable in the eyes of law.

e. That after revocation of suspension order, after almost one month, the petitioner was again placed under suspension by the respondents for the reasons best known to them.

f. That the appeal of the petitioner has been decided by the Under Secretary, Government of India. It is contended that the appellate authority functions as quasi judicial authority and cannot delegate powers to lower authority as such the order dated 03.07.2019 is non-est in the eyes of law.

9. Counter affidavit has been filed on behalf of respondent no.2 wherein the averments made in the writ petition have been denied. It is further stated that after initiation of the departmental inquiry the petitioner refused to acknowledge any communication sent to him by the Inquiring Authority. He did not express his inability to participate in the departmental inquiry himself or through his defence assistant. Under these circumstances, the departmental inquiry was proceeded ex-parte against him. It is also stated that instead of submitting his written brief or submitting any application before the Inquiring Authority to defend the case, the petitioner submitted his alleged representation dated 18.10.2018 stating that he has been acquitted by the trial court in the criminal case vide judgment dated 28.09.2018 and that based on that, the departmental inquiry be dropped against him. He was thus reluctant to participate in the departmental inquiry from the

beginning when he was served with the charge sheet by the Disciplinary Authority till the end when he was called upon by the Inquiring Authority to submit his written brief.

10. It is also stated that initially vide order dated 20.06.2018 the Disciplinary Authority appointed Smt. Daljeet Kaur, Principal, Patrician College, Rajpur Road, Dehradun, as the Inquiring Authority but as the said Inquiring Authority expressed her inability to conduct the inquiry, vide another order dated 19/20.07.2018, Shri K.G. Gupta, Ex. GGM (HR & Pers.), ONGC, was appointed as the Inquiring Authority to conduct the departmental inquiry. It is stated that the Shri K.G. Gupta, being a retired employee of a PSU, was fully competent to be appointed as an Inquiring Authority.

11. In the counter affidavit, it is also stated that a preliminary hearing was conducted by the Inquiring Authority on 07.08.2018 and a copy of the minutes of the said hearing were served upon the petitioner on 08.08.2018 which the petitioner refused to receive declaring that he would not receive any communications from the respondents till his case continues in the Court. The petitioner nowhere in his written statement or in any subsequent communication pleaded his inability to participate in the departmental inquiry either himself or through a defence assistant. It is also stated that after receiving the alleged representation dated 18.10.2018 from the petitioner the Inquiring Authority once again served the petitioner with another notice dated 24.10.2018 calling upon to submit his written brief of defence latest by 01.11.2018 but there was no further

communication from the petitioner and he did not appear before the Inquiring Authority despite all opportunities whereafter the Inquiring Authority prepared and submitted his enquiry report before the Disciplinary Authority on 14.11.2018. The Disciplinary Authority agreed with the findings arrived at by the Inquiring Authority. The petitioner was accorded an opportunity of representing against the inquiry report vide notice dated 01.02.2019 and pursuant thereto the petitioner represented against the inquiry report vide representation dated 15.02.2019.

12. Petitioner has filed the rejoinder affidavit reiterating the pleadings made in the writ petition.

13. Thereafter, a supplementary affidavit was also filed by the petitioner whereby two letters dated 17.05.2019 were brought on record by the petitioner. Petitioner alleged that the said communication reveal about the authenticity of the Inquiry Officer.

14. Counter affidavit has been filed on behalf of respondent nos.1 to 3 against the supplementary affidavit stating that the petitioner cannot argue that appointment of inquiry officer was not proper or that inquiry officer was not competent at this belated stage when the said fact was within the knowledge of the petitioner for the very inception of filing of the writ petition. It is also stated that the petitioner has also not pointed out any prejudice caused to him. It is stated that the inquiry was conducted under rules and in accordance with the principal of natural justice and no

de facto prejudice is pleaded or shown by cogent documentation.

15. I have heard Shri Ram Prasad, learned counsel for the petitioner and Shri Arvind Vashishtha, learned Senior Counsel along with Smt. Monika Pant, learned counsel for respondent no.2.

16. Learned counsel for the petitioner would submit that the ex-parte disciplinary inquiry has been done at the back of the petitioner without affording any reasonable opportunity to defend himself which is against settled principle of law of natural justice. It is submitted that the inquiry proceeding was started on 07.08.2018 and closed on 10.09.2018 during which period the petitioner was in jail from 04.06.2018 to 28.09.2018. Learned counsel would submit that the ex- parte inquiry report is based on surmises and conjecture and circumstantial evidence. It is submitted that in the said ex-parte disciplinary inquiry, the main complainant did not appear and was not examined, which shows the mala fide intention of the respondents.

17. Learned counsel for the petitioner would further submit that Shri K.G. Gupta cannot be appointed as Inquiry Officer to inquire under the CCS (CCA) Rules 1965, as he was more than 70 years of age on the date of his appointment as Inquiry Officer and he is not a retired government officer. It is submitted that Shri K.G. Gupta is a retired officer of O.N.G.C. and his date of birth is 21.01.1942, as such, his age on the date of empanelment i.e. on 19/20.07.2018 is 76 years.

18. He would further submit that the facts and evidence of the charges in criminal case and the departmental proceedings against the petitioner were same and identical, without there being any iota of difference, and in the criminal proceeding, the petitioner has been acquitted by the trial court beyond any reasonable doubt. It is submitted that after the acquittal of the petitioner on merit, the departmental proceeding on identical facts and charges, should not be allowed to continue and the impugned order dated 12.03.2019 is liable to be quashed as such.

19. He would further submit that after the acquittal of the petitioner from the POCSO court the suspension order was revoked by the respondents, but thereafter again, the respondents for the reasons best known to them, passed an order whereby the petitioner was again placed under suspension.

20. To buttress his submissions, learned counsel would place reliance on the following judgments:-

(a) Capt. M. Paul Anthony vs. Bharat Gold Mines Ltd.

& Ors. (1999) 3 SCC 679

(b) G.M. Tank vs. State of Gujarat & Ors. (2006) 5 SCC 446

(c) Union of India & Ors. Vs. Naman Singh Sekhawat (2008) 4 SCC 1

21. Per contra, learned Senior Counsel appearing for the respondent no.2 would submit that in the inquiry proceedings ample opportunity was given to the petitioner to defend himself but he was reluctant to participate in the same. He would further submit that

during the course of inquiry the petitioner never raised any objection regarding the appointment of Shri K.G. Gupta as Inquiry Officer.

22. Learned Senior Counsel would further submit that merely on the basis of acquittal in criminal proceedings, the departmental proceedings cannot be discontinued. He would submit that acquittal in the criminal case have no relevance to the facts of the departmental proceedings as the standard of proof in both the cases are totally different. In a criminal case, the prosecution has to prove the criminal case beyond all reasonable doubt whereas in a departmental proceeding, the department has to prove only preponderance of probabilities.

23. Having heard the rival submissions of learned counsel for the parties and having perused the affidavits, counter affidavits and rejoinder affidavit as well as the other documents brought on record, I am of the considered view that the departmental proceedings initiated against the petitioner is unsustainable in the eyes of law and the impugned order of imposing punishment of removal from service upon the petitioner is liable to be quashed for the following reasons:-

(i) Inquiry conducted by Shri K.G. Gupta, Inquiry Officer and the report submitted thereafter is vitiated in law as the same has been done by a person who was not competent to do the same. Record reveals that the date of birth of Shri K.G. Gupta is 21.01.1942. He was appointed as Inquiry Officer in the matter vide order dated 19/20.07.2018. As such, on the date of his

appointment as Inquiry Officer, he was aged about 76 years. Annexure SA-5 and Annexure SA-6 enclosed along with the supplementary affidavit filed by the petitioner makes it evidently clear that the respondents also noticed the procedural lacuna in the appointment of Inquiry Officer in the case of petitioner. It was pointed out by the Director (Officiating) that the retired Inquiry Officer should be a Government Officer and should not be more than 70 year of age as 1st July of year of his empanelment. In view of the fact that the inquiry officer is a retired employee of O.N.G.C., and is not a government officer, as well as the fact that he is more than 70 years of age, the inquiry conducted by the said Inquiry Officer is void ab initio.

(ii) There has also been violation of principles of natural justice in the instant case. When the inquiry proceedings commenced, the petitioner was languishing in jail. Though it has come in the inquiry report that sufficient opportunity was given to the petitioner to present his case and that a number of summons were issued to him in the jail through jailor, which he refused to receive, but the fact remains that at the relevant point of time, the petitioner was in jail. The inquiry proceedings commenced and were finalized during the said period. Thus, it is established that a reasonable opportunity of hearing was not provided to the petitioner to defend his case. That apart, the order passed by the appellate authority is cryptic and non-speaking. While dismissing the appeal, the appellate authority has not recorded any reason whatsoever for arriving at such conclusion. The appeal has been dismissed by the appellate authority in a very cursory and mechanical

manner. Thus, on this count also, inquiry report is liable to be set aside.

(iii) The departmental proceedings were initiated against the petitioner in respect of the charges of molestation which were framed on the basis of a complaints made by two students of the Institute. One complainant, who filed the alleged complaint, and because of whom the so-called incidents of molestation, came before the Principal, did not participate in the inquiry. He neither appeared nor his statements were recorded before the Inquiry Officer. This victim was a very vital witness in the inquiry but he was not examined and the reason shown for his non-examination in the inquiry was that he has left the school and has joined some other institute, though in the criminal proceeding which was running parallel with the departmental proceeding, he appeared for the trial court and his statements were recorded. Non-examination of material witness would draw an adverse inference that the department has withheld vital witness of the case, for the reasons best known to them. Insofar as other witnesses are concerned, they are departmental witnesses and have deposed at the behest of the department. They cannot be said to be independent witnesses. This very important aspect of the matter was not taken into consideration by the Inquiry Officer and the Inquiry Officer, in a very arbitrary manner, has held the petitioner guilty for the charges levelled against him. Punishment of removal from service of an employee has serious consequences as it affects the fundamental rights of livelihood of a workman. Thus, besides the in- competency of the inquiry officer to conduct the inquiry,

the non-examination of the material witness in the inquiry, has also vitiated the inquiry.

(iv) The departmental proceedings and the criminal proceedings were initiated against the petitioner on the same set of facts and charges. In both the proceedings, charges levelled against the petitioner were that the petitioner molested two students of the Institute. In the criminal proceeding, the petitioner has been acquitted honorably by the trial court. The learned trial court, after discussing all the evidences in detail, has recorded a categorical finding that there are serious contradictions in the statements of the witnesses who appeared before the court and in the departmental inquiry. Besides this, there are contradictory versions of the witnesses regarding the fact as to who was first informed by the victims about the said molestation. The trial court, on the examination of the witnesses came to the conclusion that the prosecution has not proved the guilt alleged against the petitioner beyond any reasonable doubt and acquitted the petitioner by his judicial pronouncement with the finding that the charge has not been proved. By the judgment and order of the trial court, the petitioner has been acquitted honorably. He has been completely exonerated of the charges levelled against him, which are also the same in the departmental proceedings. In a catena of decisions, it has been held by the Hon'ble Supreme Court that normally where the accused is acquitted honorably and completely exonerated of the charge, it would not be expedient to continue a departmental proceeding on the very same charges or ground or evidence. In the case at hand, the

respondents have wrongly interpreted the conduct rules in the instant case.

(v) In Union of India v. Naman Singh, (2008) 4 SCC 1, Hon'ble Apex Court has held as under:-

"35. It is not a case where a mere benefit of doubt had been given to the respondent in the criminal proceeding. The criminal court has given a positive finding that the prosecution has not been able to prove that the accused had misappropriated the goods. His visit to the border for discharging his duties did not tantamount to misuse of the post or the authority. No evidence has been presented that he did not have the authority to got the border side on official duties and even the Department had not forbidden him from going to that place. It was held that as misappropriation of the property has not been proved, the question of any criminal conspiracy did not arise. No evidence had been adduced to bring home the charge of criminal conspiracy, which is an independent crime.

37. In Sawai Singh vs. State of Rajasthan : (1986) 3 SCC 454 this Court opined :-

"16. But in a departmental enquiry entailing consequences like loss of job which now-a-days means loss of livelihood, there must be fair play in action, in respect of an order involving adverse or penal consequences against an employee, there must be investigations to the charges consistent with the requirement of the situation in accordance with the principles of natural justice in so far as these are applicable in a particular situation.

17. The application of those principles of natural justice must always be in conformity with the

scheme of the Act and the subject matter of the case. It is not possible to lay down any rigid rules as to which principle of natural justice is to be applied. There is no such thing as technical natural justice. The requirements of natural justice depend upon the facts and circumstances of the case, the nature of the enquiry, the rules under which the Tribunal is acting, the subject matter to be dealt with and so on. Concept of fair play in action which is the basis of natural justice must depend upon the particular lis between the parties."

(vi) In G.M. Tank vs. State of Gujarat & Ors. (2006) 5 SCC 446, Hon'ble Supreme Court inter alia held in para 29 & 30 as follows:-

"30. The judgments relied on by the learned counsel appearing for the respondents are distinguishable on facts and on law. In this case, the departmental proceedings and the criminal case are based on identical and similar set of facts and the charge in a departmental case against the appellant and the charge before criminal court are one and the same. It is true that the nature of charge in the departmental proceedings and in the criminal case is grave. The nature of the case launched against the appellant on the basis of evidence and material collected against him during enquiry and investigation and as reflected in the charge sheet, factors mentioned are one and the same. In other words, charges, evidence, witnesses and circumstances are one and the same. In the present case, criminal and departmental proceedings have already noticed or granted on the same set of

facts namely, raid conducted at the applicant's residence recovery of the articles therefrom. The Investigation Officer, Mr. V. B. Raval and other departmental witnesses were the only witnesses examined by the Enquiry Officer who by relying upon their statement come to the conclusion that the charges were established the applicant. 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 his 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 as well as criminal proceedings were the same without their 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."

(vii) In M. Paul Anthony v. Bharat Gold Mines Ltd. (1999) 3 SCC 679, Hon'ble Supreme Court has held in paragraph 34 as under:-

"34. There is yet another reason for discarding the whole of the case of the respondents. As pointed out earlier, the criminal case as also the departmental proceedings were based on identical set of facts, namely, 'the raid conducted at the appellant's residence and recovery of incriminating articles therefrom.' The findings recorded by the Inquiry Officer, a copy of which has been placed before us, indicate that the charges framed against the appellant were sought to be proved by Police Officers and Panch witnesses, who had raided the house of the appellant and had effected recovery. They were the only witnesses examined by the Inquiry Officer and the Inquiry Officer, relying upon their statements, came to the conclusion that the charges were established against the appellant. The same witnesses were examined in the criminal case but the court, on a consideration of the entire evidence, came to the conclusion that no search was conducted nor was any recovery made from the residence of the appellant. The whole case of the prosecution was thrown out and the appellant was acquitted. In this situation, therefore, where the appellant is acquitted by a judicial pronouncement with the finding that the "raid and recovery" at the residence of the appellant were not proved, it would be unjust, unfair and rather oppressive to allow the findings recorded at the ex- parte departmental proceedings, to stand."

(viii) In Inspector General of Police v. S. Samuthiram (2013) 1 SCC 598, the Hon'ble Supreme has held that unless the accused has an "honorable acquittal" in their criminal trial, as opposed to an acquittal due to witnesses turning hostile or for technical reasons, the acquittal shall not affect the decision in the disciplinary proceedings and lead to automatic reinstatement. But the penal statutes governing substance or procedure do not allude to an "honourable acquittal". Noticing this, the Court observed:

"Honourable acquittal

24. The meaning of the expression "honourable acquittal" came up for consideration before this Court in RBI v. Bhopal Singh Panchal. In that case, this Court has considered the impact of Regulation 46(4) dealing with honourable acquittal by a criminal court on the disciplinary proceedings. In that context, this Court held that the mere acquittal does not entitle an employee to reinstatement in service, the acquittal, it was held, has to be honourable. The expressions "honourable acquittal", "acquitted of blame", "fully exonerated" are unknown to the Code of Criminal Procedure or the Penal Code, which are coined by judicial pronouncements. It is difficult to define precisely what is meant by the expression "honourably acquitted". When the accused is acquitted after full consideration of prosecution evidence and that the prosecution had miserably failed to prove the charges levelled against the accused, it can possibly be said that the accused was honourably acquitted.

25. In R.P. Kapur v. Union of India [AIR 1964 SC 787] it was held that even in the case of acquittal, departmental proceedings may follow where the acquittal is other than honourable. In State of Assam v.

Raghava Rajgopalachari [1972 SLR 44 (SC)] this Court quoted with approval the views expressed by Lord Williams, J. in Robert Stuart Wauchope v. Emperor [ILR (1934) 61 Cal 168] which is as follows: (Raghava case [1972 SLR 44 (SC)] , SLR p. 47, para 8) "8. ... 'The expression "honourably acquitted" is one which is unknown to courts of justice. Apparently it is a form of order used in courts martial and other extrajudicial tribunals. We said in our judgment that we accepted the explanation given by the appellant, believed it to be true and considered that it ought to have been accepted by the government authorities and by the Magistrate. Further, we decided that the appellant had not misappropriated the monies referred to in the charge. It is thus clear that the effect of our judgment was that the appellant was acquitted as fully and completely as it was possible for him to be acquitted. Presumably, this is equivalent to what government authorities term "honourably acquitted".'"

26. As we have already indicated, in the absence of any provision in the service rules for reinstatement, if an employee is honourably acquitted by a criminal court, no right is conferred on the employee to claim any benefit including reinstatement. Reason is that the standard of proof required for holding a person guilty by a criminal court and the enquiry conducted by way of disciplinary proceeding is entirely different. In a criminal case, the onus of establishing the guilt of the accused is on the prosecution and if it fails to establish the guilt beyond reasonable doubt, the accused is assumed to be innocent. It is settled law that the strict burden of proof required to establish guilt in a criminal court is not required in a disciplinary proceedings and preponderance of probabilities is sufficient. There may be cases where a person is acquitted for technical

reasons or the prosecution giving up other witnesses since few of the other witnesses turned hostile, etc. In the case on hand the prosecution did not take steps to examine many of the crucial witnesses on the ground that the complainant and his wife turned hostile. The court, therefore, acquitted the accused giving the benefit of doubt. We are not prepared to say that in the instant case, the respondent was honourably acquitted by the criminal court and even if it is so, he is not entitled to claim reinstatement since the Tamil Nadu Service Rules do not provide so."

24. In the light of aforesaid, writ petition is allowed. Impugned orders dated 12.03.2019 and 03.07.2019 are hereby quashed. Respondents are directed to forthwith reinstate the petitioner in service with all consequential benefits including arrears of pay and allowances.

25. Let the record of inquiry be returned to the Department.

(Lok Pal Singh, J.) 12.01.2021

Rajni