Full Judgment
Prafulla C. Pant, J.
1. This Special Appeal has been preferred under the Rules of the Court, 1952, and directed against judgment and order dated 22.6.2004 passed by learned Single Judge of this Court, whereby he has dismissed the Writ Petition No. 357 of 2002 (S/S) alongwith Writ Petition No. 130 of 2002 (S/B).
2. Brief facts of the case are that one Shri Jai Bhagwan Sharma (father of the appellant) was a cashier with Nagar Palika, Hardwar. He was placed under suspension on 5.10.1984 and was charge-sheeted in the departmental proceedings. He also stood trial in connection with crime No. 531 of 1984 under Section 409 of I.P.C. In the departmental enquiry, charges of misconduct were found proved against him and his services were terminated vide order dated 19.2.1987. Against said order of termination from service, Shri Jai Bhagwan Sharma preferred departmental appeal, which was also dismissed on 26.4.1988. However, thereafter it appears that he got acquitted of the charge of offence punishable under Section 409 of I.P.C. vide judgment and order dated 30.5.1998, passed by Chief Judicial Magistrate, Hardwar. The Writ Petition No. 24791 of 1988, appears to have been moved by Shri Jai Bhagwan Sharma to quash the punishment awarded by the department on the ground of acquittal from the aforesaid Court. The said writ petition was transferred to this Court which is re-numbered as 357 of 2002 (S/S). Meanwhile, Shri Jai Bhagwan Sharma died and his son Ram Kumar Sharma got himself substituted as petitioner. Also, the petitioner (son of Shri Jai Bhagwan Sharma) filed another Writ Petition No. 130 of 2002 (S/B) before this Court for arrears of salary and pension of his father. Both the writ petitions were clubbed together and disposed of by the common judgment by learned Single Judge of this Court, against which this appeal has been preferred.
3. We heard learned Counsel for the parties and perused the record
4. Copy of the charge-sheet, which is Annexure CA-1 to the counter-affidavit, filed by the respondent, shows that there were as many as 7 charges against the delinquent official (Shri Jai Bhagwan Sharma), which included the charge of embezzlement to the tune of Rs. 2,87,880 which he realised as a clerk of Nagar Palika, Hardwar during the period from 9.1.1978 to 31.3.1982, the other charges relate to temporary embezzlements and also to the fact that the delinquent official took away the relevant record from the office of the cashier. Copy of the enquiry report suggests that he was found guilty not only in respect of embezzlement of Rs. 2,87,880 but other charges also.
5. Learned Counsel for the appellant drew our attention to the judgment dated 30.5.1988, passed in criminal case No. 185 of 1997 relating to crime No. 531 of 1984 whereby Shri Jai Bhagwan Sharma was acquitted of the charge. In this connection, learned Counsel argued that once the criminal trial has been terminated in favour of the delinquent official, the punishment awarded in the departmental enquiry cannot be said to be correct or based on the evidence. We have gone through the copy of the judgment. The delinquent official has no where been held to be innocent rather only this much is the finding that the prosecution has failed to prove the charge of embezzlement before the Court.
6. Learned Counsel for the appellant has relied in the case law reported in Capt. M, Paul Anthony v. Bharat Gold Mines Ltd., (1999) 3 SCC 679. In our opinion, the said case law does not help the present appellant for the reason that in said case itself it has been held that a criminal case and a departmental enquiry can go on simultaneously. However, it has been further held in said case that where the facts and evidence in the departmental as well as the criminal proceedings were same, without there being any iota of difference, it is unjust to upheld the ex-parte finding given in the departmental enquiry after acquittal of the accused on the same charge from the Court. We have already made it clear that the criminal trial in the present case was confined only in respect of misappropriation of the public money. While in the departmental enquiry there were as many as 7 charges, including the charge that the delinquent official took away the record of the Cash Section. As such it cannot be said that the facts and evidence in departmental as well as the criminal proceedings were same without there being any iota of difference. Not only this in Capt. M. Paul Anthony (supra) in para 34, it is mentioned in that case that the Court on 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 and the whole case of the prosecution was thrown out' and the accused was acquitted. While in the present case it appears to be a case of benefit of doubt, which was given to the delinquent official (father of the appellant) as the Court felt that prosecution failed to prove the charge.
7. In the circumstances, we see no illegality in the impugned order passed by learned Single Judge, upholding the order of termination, passed by the department and the order of rejection of the departmental appeal. As such this Special Appeal is liable to be dismissed at the admission stage itself. Accordingly, the same is dismissed. No order as to costs.