VIRENDRA KUMAR SHARMA Vs. STATE OF U P

JUDGEMENT

(1.) ASHOK Bhushan, J. Heard Counsel for the the petitioner and learned standing Counsel who appears for Respondent No. 1. List has been revised but no one has appeared for Respondent Nos. 2 to 6.

(2.) THIS writ petition has been filed by the petitioner praying for quashing of the order dated 8-6-1995 passed by the opposite party No. 3. Counter and rejoinder-affidavits have been exchanged between the parties.

(3.) WITH regard to second submission of the Counsel for the petitioner it is suffice to say that in view of above that respondents were not entitled to proceed with the enquiry with regard to charges which were engaging attention of criminal trial, there is no necessity to consider this argument any further. There is one another reason on which the order of dismissal cannot be sustained. Admittedly all the charges against the petitioner are charges of financial irregularities and all the 8 charges in the charge- sheet are instances of different transactions alleged. Charges No. 8 is not substantially different from the earlier 7 charges. The petitioner has already been acquitted in the criminal case, which pertain to first seven charges. The dismissal order being based on same allegations, it is not safe to sustain the dismissal order. The Apex Court in Capt. M. Paul Anthony v. Bharat Gold Mines Limited and another, 1999 (3) SCC 679, has laid down in paragraph 22 the principles on which the departmental proceedings and criminal trial can proceed. In the present case in view of specific provisions of Rule 104, departmental enquiry on same charges could not have been proceeded. In paragraph 34 of the aforesaid judgment the apex Court held 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 enquiry 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 enquiry officer and the enquiry 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. "