Can recovery be made from pf

JUDGMENT N. Pandey, J.

1. Initially in this writ application, the petitioner had prayed for quashing of the chargesheet dated 14th of October, 1988, issued on behalf of he respondent-Bank and for a direction to the respondents not to go ahead with the departmental proceeding during the pendency of a criminal trial. During the pendency of this application before this Court, by order dated 11-8-1989 it was directed that recording of evidence in the depart-mental proceeding on behalf of the parties, shall remain stayed.

2. Through a supplementary affidavit, it has been stated that during the pendency of this application, the petitioner has been acquitted in the criminal trial by the judgment dated 8th of October, 1991 Therefore in the changed circumstances a question has been raised "whether or not the departmental enquiry, pending against the petitioner, should be allowed to continue even after his acquittal in the criminal case on the basis of the same charges".

3. The other point for consideration has been raised "whether it is open to the respondents to initiate a departmental proceeding and frame charge with respect to the occurrence, which took place about 14/15 years prior to the initiation of the proceeding". Apart from the aforesaid, it has also been urged that the initiation of the proceeding is an outcome of mala fide treatment of the relevant authorities.

4. I would like to dispose of the second contention at first : A counter-affidavit has been filed on behalf of respondent-Bank, wherein, a plea has been taken that the writ application is not maintainable since it is hit by the principles of constructive; res judicata. It is stated that prior to the filing of the present writ application, the petitioner had filed another writ application bearing C.W.J.C. No. 9300 of 1988. In the said writ application, the petitioner did not challenge the initiation of the departmental enquiry rather the continuance of the enquiry on a ground of pendency of a criminal trial against the petitioner in the same matter was challenged. Admittedly, the said writ application, having been dismissed, it is not now open to the petitioner to challenge the order, framing of charges again at this stage. In support of the aforesaid learned Counsel for the respondent-Bank has placed reliance over a decision of this Court in the case of Nandan Maharaj and Anr. v. The Rohika Central Co-operative Bank Ltd., Madhubani, and Ors. reported in 1988 PLJR 352. It has not been disputed that the aforementioned writ application was dismissed on 17-3-1989. In ray view, the prayer of the petitioner, made in this writ application, so far it relates to the quashing of the charges, is barred by the principles of constructive res judicata. Therefore, I held that the petitioner cannot get the same relief from this Court in the present writ application.

5. Now I would like to take up the first question "whether in view of the acquittal of the petitioner in the criminal trial, the departmental proceeding with respect to the same charges can be allowed to proceed." Admittedly, the petitioner has been acquitted by a Court of competent jurisdiction in a criminal trial. From the pleadings of the parties, it also appears that the charges in the criminal trial as well as in the departmental proceeding are the same. According to Mr. Mukhopadhyay, learned Counsel for the petitioner, in a case where there is substantial acquittal of the accused on a criminal charge, there should not be a departmental proceeding against him with respect of the same charges on the same facts. In support of the aforesaid he has placed reliance over the following decisions of the Supreme Court as well as of another High Courts, namely ; ; Banta Singh v. National Coal Development Corporation and Anr. 1976 (1) SLR 133 ; Shri Kundan Lal v. The Delhi Administration, Delhi and Ors. ; Corporation of the City of Nagpur Civil Lines, Nagpur and Anr. v. Ramchandra G. Modak and Ors.

6. According to Mr. Sinha, learned Counsel appearing for the respondent-Bank, an order of acquittal, passed in a criminal case, cannot debar a departmental enquiry of self and same charges, even if the delinquent is honourably acquitted. The discretion has to be left with the authority, if he, on the facts of the case feels that a departmental enquiry is necessary, such decision of the authority should not be open to the scrutiny by a Court. In support of the aforesaid he has placed reliance over a Full Bench decision of the Orissa High Court, reported in 1988 Lab. I. C. 1441 in the case of Jayaram Panda v. D.V. Raiyani and Ors.. He has also placed reliance over a decision of the Supreme Court, (supra) and a Bench decision of this Court in the case of Rabindra Kumar Singh v. The State of Bihar through the Secretary, Co-operative Department and Ors. 1989 PLJR 420,

7. Before referring to the different judical opinions on the impact of a judicial acquittal and on the departmental action, I would like to quote the relevant passage from the judgment of Shaik Kasim v. The Superintendent of Post Offices, Chingleput Dn. and Anr. , wherein, Anantanarayanan, J. after reviewing the previous decision of different High Courts as well as the Supreme Court stated following principles:

Firstly, an Administrative authority, in initiating disciplinary proceedings, is not bound to wait for the verdict of a criminal Court. But where the Criminal Court has tried the concerned person and acquitted him, it would be improper, and such a proceeding is liable to be quashed as not in consonance with the principles of natural justice, if the Administrative Authority later initiates disciplinary proceedings on the identical facts, and identical charge and records a contrary conclusion. But, of course, the acquittal should have been substantially on the merits ; technical acquittals on grounds like sanction may not inhibit departmental disciplinary proceedings, or a contrary verdict therein.

Secondly, there could be no rigid or inflexible rule that the finding of a Criminal Court is conclusive, in every sense upon Administrative Authorities. If the finding is purely a technical acquittal, the Administrative Authority may conceivably punish, on the same facts. It can certainly punish where the acquittal is solely based on lack of sanction, or some technical defect in procedure. It could punish, on the same facts, for some lesser charge, which may not amount to a criminal offence, but may well amount to grave dereliction of duty, entitling disciplinary action. For instance, a school-master may be acquitted of a charge of rape alleged to have been committed against a girl-student in his care. But that cannot preclude the departmental authority, upon those very facts, from punishing him for grave impropriety in his relationships with the girl-students, which disentitles him to that office.

Thirdly, where the acquittal is substantially on merits, on identical facts and charges, it will not be proper for a disciplinary Tribunal to record a finding of guilt, and to punish thereon. This is a basic principle of Jurisprudence and I cannot see that it makes any difference that the departmental authority acts before the criminal proceedings or after it. This Court, in exercise of the jurisdiction under Article 226 of the Constitution, would be justified in striking down the action based on such findings as, not in consonance with principles of natural justice.

8. A question may arise what is the concept of honourable acquittal. It has to be noticed that there is no conception like honourable acquittal in the Code of Criminal Procedure. Therefore, the concept of honourable acquittal or full exoneration from the criminal charges can only be gathered from the judgment itself. The acquittal with benefit of doubt cannot be said to a substantial acquittal. With respect to a case where there is honourable acquittal or full exoneration of the criminal charges Hon'ble S. Murtaza Fazal Ali, J., speaking for the Supreme Court in the case of Corporation of the City of Nagpur Civil Lines, Nagpur and Anr. v. Ramchandra G. Modak and Ors. held, as follows:

The question whether or not the departmental inquiry pending against the employee involved in the criminal case should be continued even after his acquittal in criminal case is a matter which is to be decided by the department after considering the nature of the findings given by the Criminal Court. Normally, where the accused is acquitted honourably and completely exonerated of the charges it is not expedient to continue a departmental inquiry on the very same charges or grounds or evidence. However, merely because the accused is acquitted, the power of the authority concerned to continue the departmental inquiry is not taken away nor its discretion in any way fettered.

Similar view was also taken by this Court in the case of Banta Singh v. National Coal Development Corporation and Anr. . It will be relevant to quote the relevant paragraph of the aforesaid judgment:

Sometimes both the criminal trial and departmental enquiry go on. There is no bar against that. But if a departmental enquiry is withheld till the decision of the criminal trial, then that decision should be taken into account and cannot be overridden by continuing the departmental enquiry thereafter on the identical charges. Furthermore, if a departmental enquiry is not at all launched but a criminal case is instituted and that ends in acquittal of the accused, it will not be proper for the department again to proceed on the same charges. The judgment in the criminal trial in the present case was certainly admissible in the Civil Court under the Evidence Act for the purpose, that there was, a criminal case of identical charge and it ended in acquittal of the accused. The other findings or the evidence led in the criminal trial are irrelevant, but the conclusion of the trial is admissible in evidence. In that view and following the principle laid down in the case mentioned above of the Madras High Court, I am inclined to accept the contention of learned Counsel for the appellant that the departmental enquiry on the charges, of the identical nature in criminal trial, was not justified.

9. It would be also appropriate to notice another judgment in the case of Kundan Lal v. The Delhi Administration, Delhi, and Ors. reported in 1976 (1) SLR 133, wherein, similar question was under consideration. In the said case Hon'ble S. Rangarajan, J. after discussing several pronouncements of different High Courts and the Supreme Court held as follows:

The above survey of judicial opinion seems to point to a preponderating preference for the middle view which is that when there is a substantial acquittal of the accused on a criminal charge there should not be a departmental proceeding against him in respect of the same charge on the same facts unless there are present conditions like the acquittal being on a technical ground or establishing conduct which would make it unworthy of the said office continue in office etc.

10. In my opinion, the aforesaid rulings fully support the contention, put forward in this case by the petitioner.

11. In this connection it would also be appropriate to notice the decision of the Orissa High Court reported in 1988 Lab. I.C. 1441, (supra), wherein, it has been held that an order of acquittal, passed in a criminal case, does not debar a departments enquiry of self and same charges. Even if the delinquent is honourably acquitted, the discretion is left with the disciplinary authority to proceed with the departmental enquiry. The only guiding factor for a departmental authority would be to find out whether it would be expedient to continue a departmental enquiry in the facts and circumstances of a particular case. According to their Lordships, the order of a acquittal recorded in a criminal trial bars a second prosecution on the same facts. The object of holding a departmental enquiry is quite different. Therefore, there is no constitutional or legal bar on the basis of which it can be held that departmental enquiry is bad in view of the order of acquittal recorded by a Criminal Court. It has also been held that the field of operation of the two proceedings are quite different and independent.

12. But their Lordships have also held that in a given circumstances the guiding factor for a departmental authority, would be, to find out whether it would be expedient to continue with a departmental enquiry where the accused on the basis of same charges was exonerated or acquitted honourably.

13. After going through the relevant materials as also different judgments aforementioned, in my view, in a case where the person concerned, although acquitted of the criminal charges, it will not automatically divest the jurisdiction of the authority concerned, to initiate or to continue with a departmental enquiry on the same very charges or grounds or evidence. The only thing which has to be seen, whether it would be expedient and fair, to continue with the departmental proceeding on the charges, which are identical to those, which were levelled in the criminal case before a regular Court, which has acquitted the accused honourably and exonerated completely.

14. Coming to the facts of the present case. It may be stated that I had no occasion to examine the findings, recorded by the Criminal Court while acquitting the petitioner. During the pendency of this application, it is stated that the petitioner has been acquitted. In the background of the facts of the present case as also on the basis of other relevant materials, the disciplinary authority is duty bound to consider "whether it is expedient in the interest of justice to proceed with the departmental enquiry". The petitioner is also at liberty to produce the judgment of the trial Court and other materials before the disciplinary authority for his consideration and to decide whether the departmental enquiry would continue.

15. In the result, on the basis of the aforesaid findings and directions this writ application is disposed of.