1. This application is directed against the order dated 4.6.98 (A.8) issued by the respondent calling upon the applicant to submit his fresh written statement of defence to the Memorandum of Charges dated 12.11.96 proposing to continue the disciplinary proceedings on the ground that the Criminal Court has acquitted him giving benefit of doubt. The applicant seeks a declaration that the respondent is not competent to proceed with the enquiry in respect of the charges levelled against him in Annexure. A.3 Memorandum of Charges after his acquittal on merits by the Criminal Court in respect of the same set of facts and allegations in a full dress enquiry. The foundation of the criminal prosecution against the applicant as also the initiation of the disciplinary proceedings by A.3 Memorandum of Charges was that the applicant had while working as SPM Kulathupuzha on 19.12.1995 beat up Shri L. Mohanan Achary, SDI, Punalur while the latter was taking meals in the tiffin room of Kulathupuzha S.O. and caused contusions and injuries to his chest and right hand, to wreak vengeance on him for writing some adverse remarks in the inspection reports on Kulathupuzha S.O. for 1994 and 1995. Though Memorandum of Charges was issued in the year 1996 as a prosecution was launched against the applicant, the proceedings were kept in abeyance. Now that by the judgment dated 27.2.98, the applicant has been acquitted the respondent has issued the impugned order.
2. The case of the applicant is that in view of the provisions contained in Rule 82 of the P&T Manual Vol. III, the respondent is not entitled to proceed further with the enquiry in view of the acquittal of the applicant by the Court on merits. The applicant relies on various rulings of the Apex Court in that regard.
3. We have heard Mr. O. V. Radhakrishnan, learned Counsel appearing for the applicant and a Mr. James Kurien, Additional Central Govt. Standing Counsel appearing for the respondent. We have also gone through the averments made in the application as also the annexures appended to the application and have carefully gone through the rulings cited by the learned Counsel. Rule 82 of the P&T Mannual Vol. III reads as follows: "It is not permissible to hold departmental enquiry in respect of a charge based on the same facts or allegations which have already been examined by a Court of competent jurisdiction and the Court has given a finding that they are not true. If however, the Court has merely expressed a doubt as to the correctness of the allegation, there may be no objection to hold departmental enquiry into the same allegation, if better proof than that was produced before the Court or was then available, is forthcoming. If the Court has held that the allegations are proved but they do not constitute the criminal offence with which the Government Servant was charged, then also it would be permissible to hold a departmental enquiry on the basis of the same allegations." A reading of the above provision would show that a departmental enquiry is impermissible if the Court has found that the allegations are not true and that an enquiry can be held if the Court had expressed doubt and if better evidence than what was adduced in the Court has been available. In this case a reading of the judgment of the Criminal Court would show that the applicant was acquitted because the prosecution failed to bring home his guilt beyond shadow of a reasonable doubt and therefore, it was unsafe to warrant a conviction. Benefit of doubt was given to the applicant and thus he was acquitted. There was no finding that the allegations were not true. The annexure to the Memorandum of Charges shows that witnesses who were not examined before the Criminal Court have been cited. Therefore, the circumstances under which an enquiry is permissible under Rule 82 of the P&T Manual Vol. III are available in this case and therefore, it cannot be said that the impugned order proposing to hold the enquiry is in violation of the provisions of Rule 82 of the P&T Manual Vol. III.4. Learned Counsel for the applicant invited our attention to the following rulings of the Supreme Court to support his arguments that after acquittal by the Criminal Court after a full trial on merits, it is not permissible for the department to proceed with the enquiry on the basis of the same allegations and charge. The rulings relied on by the learned Counsel for applicant are:Corporation of City of Nagpur, Civil Lines, Nagpur v. Ramachandra G. Modak, AIRA.L Kalra v. Project and Equipment Corporation of India Ltd, AIRState of Karnataka v. T. Venkataramanappa, Learned Counsel also placed reliance on a ruling of the Madras High Court in AIR 1965 Madras 502 (Sheikh Kasim v. The Supdt. of Post Offices, Chenkalpet Division and Anr.), the ruling of the A.P. High Court in 1983 (1) SLR 527(A.P.Naidu v. General Manager, South Central Railway Nilayam, Secunderabad and Ors. and of the Kerala High Court reported in 1997(1) KLT 797 (Narayanankutty v. State of Kerala).
5. Scanning through all the judgments cited above, we have not been able to find that there is a total prohibition imposed by the Apex Court in holding a departmental enquiry against a Government servant just for the reason that on the same set of allegations, he was acquitted by the Criminal Court as his guilt not being proved beyond shadow of reasonable doubt and giving him the benefit of doubt. It is well settled law that the degree of proof required in a departmental proceedings and that is required to base the conviction of the accused in a criminal case are not same. In a criminal case unless the guilt of the accused is brought home beyond shadow of reasonable doubt, it is not possible to sustain a conviction. In a departmental proceedings decision is taken on the basis of preponderance of probabilities.
Therefore, if the evidence available fall short of the required standard for conviction the Criminal Court has no option but to acquit the accused giving him the benefit of doubt. In a departmental enquiry a finding of guilt can be arrived at on the basis of preponderance of probability. Therefore, we are not convinced that the arguments of the learned Counsel for the applicant that because the applicant has been acquitted it is not permissible for the respondent to proceed with the enquiry.
6. Learned Counsel for the applicant next argued that even if it is assumed that it is permissible for the respondent to hold the enquiry after the applicant has been acquitted by the Criminal Court, it is permissible to do so only if it is satisfied that it is expedient to do so and that better evidence is available. The Counsel taking us through the impugned order argued that the application of mind in this regard is totally lacking in the order. We do not agree. In the order it has been stated that as the Court has acquitted the applicant giving him benefit of doubt the departmental enquiry is being held. It therefore shows application of mind to the Court's order and the facts of the case, 7. The last limb of the argument of the learned Counsel for the applicant is that the allegation forming the basis of the Memorandum of Charge does not constitute a misconduct as enumerated in the CCS (Conduct) Rules and therefore, in the light of the ruling of the Apex Court in A, L. Kalra v. Project and Equipment Corporation of India Ltd. (supra) the impugned order and the proceedings proposed to be held thereunder is unsustainable.
8. We have gone through Rule 3 and Rules 4 to 22 of the CCS (Conduct) Rules. Learned Counsel for the applicant argues that of the misconduct for which action can be taken and penalty imposed on a Government Servant has been enumerated in Rules 4 to 22 and that causing hurt to a co-employee in the office premises not being one of the enumerated misconduct, it is not permissible to proceed against the applicant in a departmental proceedings with such an allegation. In Kalra's case (supra) the Apex Court was considering the provisions of Conduct Rules of the Corporation where in Section 5 the misconduct for which penalty can be imposed on the employees have been enumerated. We do not find any provision in the CCS (Conduct) Rules enumerating the misconducts for which penalty specified in Rule 11 of the CCS (CCA) Rules can be imposed. Rules 4 to 22 imposes certain restrictions on the conduct of the Government servants the violation of which may amount to misconduct. That does not mean that the Government servant may with impunity do anything other than what are specified in Rules 4 to 22 of the CCS (Conduct) Rules. If the arguments of the learned Counsel is accepted no disciplinary proceedings can be held against a Government servant for unauthorised absence, wilful disobedience to the lawful orders of the superiors, dereliction of duty and misappropriation of public funds etc. as these do not come within the prohibition contained in Rules 4 to 22 of the CCS (Conduct) Rules. It is, therefore, evident that Rule 3 and Rules 4 to 22 are independent of one another and that for any act in violation of Rule 3 even though it does not amount to violation of any one of the restrictions contained in Rules 4 to 22 disciplinary proceedings can be held against a Government servant.
9. In the light of what is stated above, we are of the considered views that there is nothing wrong in respondent proceeding against the applicant as proposed by the impugned order A8 and therefore, we dismiss this application finding even prima facie no merit in it, leaving the parties to bear their own costs.