VARKEY JOSEPH Vs. MECHANICAL SUPERINTENDENT, COCHIN PORTTRUST

JUDGEMENT

(1.) THE petitioner was a Skin Driver in the Cochin Port Trust.He was prosecuted for an offence under section 379 of the Indian Penal Code for having committed theft of a zinc plate,fitted on the back side of a ship Gertrude Grigg ;,kept at the dry dock for annual repairs,in the Cochin Harbour during day time on 13th March 1963 without the consent or knowledge of the Foreman or other authorities.He was found guilty of the said offence by the trial Magistrate,who released him on admonition under section 3 of the Probation 'of Offenders On appeal he was acquitted.Even before the criminal case concluded before the Magistrate,by Ext.P -1.dated 15th March 1969,the petitioner was placed under suspension pending enquiry,with effect from 14th March 1963 under rule 19 (v) (a) of the Rules for Regulation of the Conditions of Employment of the Industrial Staff of the Cochin,Port.Ext.P -8 (a ), dated 19th June 1964 is a copy of the judgment of the District Magistrate allowing the petitioner 's appeal against the trial Magis­trate 's order and directing his acquittal.Mean­while,by Ext.P -2,dated 20th November 1963,the petitioner,had been asked to show cause against the disciplinary action for failure to report his conviction by the Trial Magistrate reported to have been made on 31st July 1963 and for not having informed the matter to the Port Office,and for not having produced a copy of the judgment.By Ext.P -3 reply,the peti­tioner stated that he had preferred an appeal against the order of the Sub Magistrate,Cochin,and the same was pending;and that his failure to inform about the Trial Magistrate 's judgment was because no sentence had been passed on him.By Ext.P -4 notice,dated 19th December 1963,the petitioner was asked to show cause against the termination of service under rule 17 (iv) of the Rules.Ext.P -5 is a copy of his reply,and Ext.P -6,a copy of the order directing that no pay or allowances were to be paid to the peti­tioner from 31st July 1963 onwards,even if he was honourably acquitted.Ext.P -7,dated 3rd April 1964 is a copy of the order dismissing the petitioner from service with effect from 14th March 1963 in view of his conviction by the Trial Magistrate.In answer to the same,by Ext.P -8,dated 1st July 1964,the petitioner for warded a copy of the District Magistrate 's and judgment acquitting him of the offence prayed for cancellation of his suspension,'for reinstatement in the service.) Certified copy Of the District Magistrate 's judgment was for­warded.Thereafter by Ext.P -9,dated 27th January 1965 the petitioner was informed that further enquiry under the provisions of the Central Civil Service(Classification,Control and Appeal)Rules would be held against him on the allegations,and that therefore the prior order of dismissal was set aside and the petitioner shall be deemed to have been placed under sus­pension with effect from 14th March 1963.On the same day,Ext.P -10 charge sheet was issued to the petitioner,to which he submitted his explanation [Ext P -10(a)].He was informed by Ext.P -11,dated 21st May 1965 that he was found guilty of the misconduct charged and that it was decided to dismiss him from service forth­with.Ext.P -12 is a copy of the appeal pre­ferred by the petitioner which is said to be still pending.

(2.) AFTER the District Magistrate 's judgment [Ext.P -8(a)] the petitioner had preferred O.P.No.48 of 1965 to quash Ext.P -11.The same was ultimately heard by a Division Bench,before which it was agreed that if the petitioner files an appeal against Ext.P -11 on or before 2nd November 1966,the same would be,dealt with in accordance with law.It was thereafter that the appeal was filed.The petitioner has now approached this Court on the ground that though the appeal was filed on 2nd November 1966,it had not so far been disposed of,that after his acquittal by Ext.P -8 (a) judgment,it was improper to frame charges against him in respect of the same facts on which he had been acquitted;and that the finding in the disciplinary proceedings without paying due regard to Ext.P -8 (a) judgment was illegal and unsustainable.Counsel for the respondent pointed out "that although the appeal had been filed,the petitioner had not made any demand for expedi­tious disposal of the appeal,that the same was delayed for administrative reasons set forth in paragraph 2 of the counter -affidavit of the 1st respondent,and that by reason of the pendency of the appeal,the petitioner was precluded from prosecuting this writ petition.The petitioner 's counsel stated that I may proceed on the footing that the appeal against the petitioner had been adversely decided,and solicited a ruling from me on the question as to whether any disciplinary proceedings would lie against him after Ext.P -8 (a) judgment;and if it would,whether the disciplinary authority had paid due heed to the findings in Ext.P -8 (a) judgment before finding the petitioner guilty of the charge framed against him in disciplinary proceeding.This aspect of the matter was elaborately argued,and was said to go so much to the root of the jurisdiction of the disciplinary authority to frame a charge,that despite the pendency of the appeal,which should ordinarily justify a dismissal of this writ petition,I have decided to pronounce on the merits of the argu­ments advanced.Especially is it so,when,on an earlier occasion this matter has already gone up before a Division Bench of this Court,which referred the petitioner to his departmental appeal.Little purpose would be served now by asking the petitioner to urge his jurisdictional objections before the appellate authority.

(3.) IN Jerom D 'Silva 's case A.I.R.1952 Mad.858,the proposition was only cautiously stated that as the criminal courts are entrusted with the duty of an enquiry into offences,it is desirable that their orders are treated as conclusive in proceedings before quasi judicial tribunals.This was re -affirmed in Krishnamoorthy v. The Chief Engineer,Southern Railways A.I.R.1967 Mad.315.In Ekambaram Ponnurangam v. General Manager and Competent Authority,Mysore Government Road Transport Department A.I.R.1962 Mysore 84,it was only stated that after acquittal on the charge of ( theft,disciplinary proceedings commenced on facts relating to the same charge, were improper and not in good faith. In Sree Rama v. The Superin­tendent of Police 1967(2)L.L.J.142 the observation that an acquittal in a criminal case would constitute an impediment to disciplinary proceedings in respect of the same charge,was really obiter,the actual decision being only that the mere pendency of a criminal case would not bar of the disciplinary proceedings.Neither the decision in Union of India v. Akber Sheriff A.I.R.1961 Mad.486,nor the latter one of the same High Court in Shaik Kasim v. The Superintendent of Post Offices 1965(1)L.L.J.197 put the proposition in any extreme form that an acquittal in a criminal particular charge _ would bar the "disciplinary proceedings on facts relating to the same.The decision of the Patna High Court in Banth Singh v. National Coal Development Corpora­tion 1969(1)L.L.J.664 followed the principle in Jerom D 'Silva 's case A.I.R.1952 Mad.853 but on its actual application,found that the departmental enquiry on charges identical in nature to the criminal trial,which ended in an acquittal,was not justified.This is really an extension of the principle of the Madras case,and with respect,I cannot accept it as either justified or correct.I would again,not accept as correct,the ruling in Quamarali Wahid Ali v. State of M.P. A.I.R.1959 M.P.246 ,which seems to postulate that an acquittal in a criminal charge would be an absolute bar to the initiation of disciplinary pro­ceedings on facts based on the same charge.I need not refer in detail to the other authorities cited,as counsel for the petitioner,very properly was content to pitch his tent at a lower level,and merely to argue that the judgment of acquittal in a criminal case should receive careful consideration by the disciplinary authority.But before leaving this aspect of the case,I may observe that neither by reason of the principle in Article 20(3)of the Constitution,nor of section 403 of the Criminal Procedure Code,nor on the principle of issue estoppel,can disciplinary proceedings be absolutely barred after acquittal in a criminal trial on a charge arising out of the same facts.The propriety and reasonableness of the disciplinary proceedings in the wake of acquittal by the criminal court,is of course,a different matter.The relevant authorities on this aspect of the matter have been reviewed by my learned bother Mathew J.in Spatikam v.State of Kerala 1970(1)L.L.J.718 .It was pointed out that the higher standard of poof required in a criminal prosecution and the comparative laxity or greater freedom in the matter of receiving evidence allowed in a departmental proceedings afford sufficient justification for not barring the latter after acquittal by a criminal court on the same facts which form the foundation of the depart­mental enquiry.I am in respectful agreement with the said decision.