(1.) The Superintendent of Central Prison, Trichy and the Additional Inspector General of Prisons, Chennai are the petitioners. The challenge is to the order of the State Administrative Tribunal dated 19.05.2004 passed in O.A.No. 4489 of 2002. The issue relates to the dismissal of the first respondent who served as a Warder under the first petitioner. He was issued with a charge memo dated 23.08.1989 wherein, it was alleged that while working as Grade I Warder from 03.03.1999, when he reported to night shift duty on 09.08.1999 at 17.40 hours, he was checked by the gate keeper, viz., Thiru. R. Sekar (Grade I Warder) Entry Gate and it was found that he had concealed Ganja powder weighing about 50gms in a polythene sachet in lungi kept in the bed roll belonging to him. As possession of Ganja was prohibited under Sub Section 42 - 45 - 12 of Prison Act, he is alleged to have committed serious misconduct violating Rules 134(2) and 298(c) of Tamil Nadu Prison Manual. The first respondent was called upon to submit his explanation. By letter dated 28.09.1999, the first respondent denied the misconduct alleged against him and stated that he would submit his detailed explanation after the oral enquiry. He also wanted copies of certain documents. Thereafter, an enquiry was ordered to be held, in which the first respondent participated. In the enquiry, four witnesses were examined in support of the charges. The first respondent examined himself in the enquiry apart from cross examining the witnesses examined in support of the charges. The Enquiry Officer submitted his findings dated 15.07.2000 holding that the charges levelled against the first respondent were conclusively proved. Based on the findings of the Enquiry Officer, explanation was called for from the first respondent by letter dated 28.07.2000. The first respondent in his reply dated 09.08.2000 submitted that since as against the very same occurrence a criminal case was pending, he should be permitted to submit his explanation after conclusion of the criminal case. However, the first petitioner in his communication dated 19.09.2000 granted one more week time to the first respondent for submitting his reply to the report of the Enquiry Officer. It was also specifically stated therein that, if no reply is received, it would be taken that he had no explanation to offer and that final orders would be passed after conclusion of the criminal case. Thereafter, by order dated 14.11.2000, the first respondent was dismissed from the services for the proven misconduct of attempt to smuggle 50gms of Ganja into the jail premises. The first respondent preferred an appeal against the order of dismissal in his appeal memo dated 24.01.2002 to the Deputy Inspector General of Prisons, Trichy and by order dated 07.03.2002, the said appeal came to be dismissed, since the same was preferred after a delay of one year and two months. The first respondent preferred a further revision before the Inspector General of Prisons on 18.03.2002 and that was also dismissed by the revisional authority by order dated 13.06.2002.
(2.) Be that as it may, in the criminal Court where the first respondent was proceeded against under the provisions of the NDPS Act, the case was registed as C.C.No. 39 of 2000 on the file of the Special Court under the Essential Commodities Act, Pudukkottai. The Special Court by its judgment dated 24.09.2001, acquitted the first respondent by granting the benefit of doubt in his favour. Thereafter, the first respondent preferred the present Original Application before the State Administrative Tribunal in O.A.No. 4489 of 2002. The Tribunal, by the order impugned in this writ petition has taken the view that since the criminal Court based on the evidence placed before it has found that the charge was not proved and has chosen to acquit him in the light of the decision of the Hon'ble Supreme Court reported in , Capt. M. Paul Anthony v. Bharat Gold Mines Ltd. and Anr., 1999 1 LLJ 1094 set aside the order of dismissal passed against the first respondent.
(3.) Aggrieved against the same, Mr. M. Dhandapani, learned Special Government Pleader appearing for the petitioners contended that the acquittal by the criminal Court cannot be the sole criteria for the purpose of interfering with the punishment imposed on the first respondent. Learned Special Government Pleader by placing reliance upon the recent decision of the Hon'ble Supreme Court reported in , NOIDA Entrepreneurs Assn. v. NOIDA and Ors., 2007 AIR(SC) 1161 contended that even if the criminal Court had acquitted the delinquent, the conclusion of the departmental proceedings can be independently supported and the Tribunal committed serious illegality in interfering with the order of punishment imposed on the first respondent. Learned Special Government Pleader contended that the degree of proof required in departmental proceedings and criminal Court varies in great length and that when proof of hilt is the requirement in the criminal case, preponderance of probability is the rule in all domestic enquiries and in such circumstances, when the Enquiry Officer relied upon the evidence of the guard and other witnesses who had witnessed the recovery of Ganja from the possession of the first respondent when he reported for the duty in the night shift on 09.08.1999, in the absence of any acceptable evidence let in on behalf of the first respondent, there was no scope to interfere with the findings of the Enquiry Officer and the ultimate order of dismissal passed against the first respondent. Learned Special Government Pleader also relied upon , Nand Kishore Prasad v. The State of Bihar and Ors., 1978 2 LLJ 84 in support of his submission.