SURESH KUMAR Vs. TRAVANCORE DEVASWOM BOARD

JUDGEMENT

(1.) The appellant/petitioner was dismissed from service while he was working as Head Clerk in the Assistant Devaswom Commissioners Office, Nanthancode. It was alleged that in a surprise check made by the Finance and Accounts Officer on deputation to the Board (PW6 in the enquiry), it was discovered that a cheque for Rs. 15,421/= prepared for presentation in the bank and intended for recoupment in the Devaswom account was missing. It was verified from the bank concerned that the cheque had been encashed by the petitioner and misappropriated. In the charge sheet it is alleged that he has signed the cheque and received the amount on 1.6.1996. On 29.6.1996 through one Ramachandran Poti (PW7), who is a Santhi in a temple attached to the Devaswom, the amount was paid back by the appellant. Ext.P1 is the charge sheet issued to him. Pursuant to the charges, an enquiry was conducted by the Enquiry Commissioner of the Travancore Devaswom Board. Petitioner was allowed to cross examine the witnesses examined in support of the charges and also to adduce evidence in his defence. After considering the evidence, by Ext.P2, Enquiry Commissioner found him guilty of the charges mentioned in the charge sheet. A detailed representation (Ext.P3) was given by the petitioner regarding the finding of the enquiry officer when he received the copy of the enquiry report. Ext.P4 show cause notice was issued to him to show cause why he should not be dismissed from service for the misconducts alleged. Ext.P5 is the reply filed by the petitioner. Finally by Ext.P7 order he was dismissed from service. Meanwhile, a criminal case was also registered against him on the same set of facts. He was acquitted in the criminal case as can be seen from Ext.P8 judgment.

(2.) The major contention raised in the Original Petition is that since he was acquitted in the criminal case on the same set of facts, the findings of the enquiry officer should not be accepted and he should be released. He also relied on the decision of the Supreme Court in Capt. M. Paul Anthony v. Bharat Gold Mines Ltd. and Anr., . In that case the Apex Court found that the exparte enquiry conducted against the petitioner was not proper, that too without payment of subsistence allowance. It was further held that since in the criminal case he was acquitted after fourteen years, there is no necessity for conducting a fresh enquiry on the same set of facts. It was not held that in all cases whenever the accused are acquitted, the findings of the enquiry officer should be set aside if circumstances and charges are based on the same set of allegations. In that case it was clearly held that departmental proceedings and criminal proceedings can proceed simultaneously, but it was held that in appropriate cases where complicated question of law and facts are involved, departmental proceedings can be stayed pending disposal of the criminal case. It is well settled law that in departmental proceedings the standard of proof is one of preponderance of probabilities, whereas in a criminal case, the charge has to be proved by the prosecution beyond reasonable doubt. The purpose sought to be achieved are also different. The charges levelled in the disciplinary proceedings have to be tested keeping in mind the enforcement of discipline and the level of integrity amongst the staff in the administration of the establishment but these are not relevant factors in the criminal proceedings. If in the domestic enquiry held in accordance with the principles of natural justice an employee is found guilty and the disciplinary authority had imposed punishment, it cannot be set aside because subsequently the criminal court has acquitted him. See Anglo-American Direct Tea Trading Company Ltd. v. Labour Court, Coimbatore and Ors., 1970 I LLJ 481. Even after acquittal, the domestic enquiry can be completed and based on the finding action can be taken as held in Durgapur Chemicals Ltd. v. Ninth Industrial Tribunal, West Bengal and Ors., 2001 (4) L.L.N. 1052. In State of Rajasthan v. B.K. Meena and Ors., 1997 I L.L.J. 746 (SC), it was held that disciplinary proceedings can be conducted pending criminal proceedings. See also Jang Bahadur Singh v. Baij Nath Tiwari, 1969 I L.L.J. 567 (SC). The Apex Court in Corporation City of Nagpur v. Ram Chandra and Ors., 1981 II L.L.J. 6 (SC) held that merely because accused was acquitted, the power of the authority to conduct domestic enquiry would not be taken away nor its discretion any way fettered. In Nelson Motis v. Union of India, 1992 Lab.I.C.2037 it was held by the Apex Court that nature and scope of a criminal case are different from departmental disciplinary proceedings and an order of acquittal would not conclude departmental proceedings. The criminal proceedings and disciplinary proceedings are altogether distinct and different jurisdictional areas. Objectives of the two proceedings are distinct and different as held by the Apex Court in Krishnakali Tea Estate v. Akhil Bharatiya Chah Mazdoor Sangh and Anr., 2004 SCC (L&S) 1067. In this case a very detailed enquiry was conducted. Petitioner participated in the same. From the evidence available in the enquiry which was conducted in accordance with the principles of natural justice he was found guilty. The above finding cannot be set aside merely because he was acquitted in the criminal case since the required proof was not satisfied.

(3.) It was contended that findings of the enquiry officer are not correct. PWs.2 and 7 were believed by the enquiry officer. It was further argued that since the cheque was paid for recoupment, the cheque need not have been signed to facilitate payment. The enquiry officer found that the appellant signed the cheque while receiving the amount. The criminal court acquitted him because the handwriting expert found that though the latter part of the signature in the cheque as well as the specimen signature are similar, but initial part is not similar and, therefore, a definite opinion cannot be stated. We have also gone through the signature. The latter part is exactly similar even though a slight difference is there in the initial part. The enquiry officer considered the evidence of PWs.2 and 7. The enquiry officer believed those witnesses. Under Article 226 of the Constitution, the High Court is not an appellate authority and High Court cannot reappraise the evidence as in appellate proceedings as held by the Apex Court in Divisional Controller, K.S.R.T.C. v. A.T. Mane, 2005 SCC (L&S) 407, State of Haryana v. Rattan Singh, , B.C. Chaturvedi v. Union of India and Ors., and in Devendra Swamy v. Karnataka State Road Transport Corporation, . The entire evidence was looked into and evidence of PWs.2 and 7 were believed and the enquiry officer found him guilty. Since the enquiry was conducted in accordance with the principles of natural justice and there is no proved bias on the part of the enquiry officer, we see no ground to interfere with the findings of the enquiry officer and we are not in a position to hold that the findings are perverse.