Airports Authority of India and ors. Vs. Pradip Kumar Banerjee and ors. - Court Judgment

S.S. Nijjar, C.J.

1. Airports Authority of India has filed this Letters Patent Appeal against the judgment and order passed by learned Single Judge (Justice Pratap Kumar Ray) on 23rd February, 2007 in W.P. No. 8256 (W) of 2005 (Pradip Kumar Banerjee and Ors. v. Airports Authority of India and Ors.). By the aforesaid judgment, the learned Single Judge has quashed and set aside the order of suspension passed against respondent No. 1 with the further direction to reinstate him in service with all consequential benefits within a month from the date of the order and to continue his salary allowances and service benefits in accordance with law.

2. The substantial question of law which arises in this appeal is whether an employee acquitted by the Criminal Court of criminal charges would be automatically entitled to be reinstated in the service. Further, is the employer debarred from holding a departmental enquiry on the same allegations which formed the subject-matter of the criminal prosecution.

3. We may briefly, notice the relevant facts, respondent No. 1 was working as an Assistant Engineer in the Kolkata office of the Airport Authority of India in the year 1991. His duty, inter alia, was to supervise various construction works done by different contractors. All labour payments were made in his presence on the basis of certificates issued by him. On a complaint made by one, Shibnath Paramanik, the representative of M/s. Tara Sankar Construction Company, the Central Bureau of Investigation (CBI) laid a trap and he was caught 'red handed' while accepting bribe. It seems that respondent had also admitted his guilt before the CBI. A criminal case was started against him. He was detained in police custody from 30th April, 1991 for more than 48 hours. By office order dated 6th May, 1991 he was placed under suspension with effect from 30th April, 1991.

4. By judgment and order dated 10.12.1999 passed in Special Case No. 8 of 1993, the lst Special Court at Alipore found respondent No. 1 guilty of offences punishable under Sections 7 and 13(2) read with 13(1)(d) of the Prevention of Corruption Act. The 1st Special Court was of the view that appellant should be sentenced for imprisonment for the minimum period. Accordingly he was sentenced to rigorous imprisonment for one year and to pay fine of Rs. 2,000/- in default, rigorous imprisonment for three moths more. However, in view of the conviction of respondent No. 1, the competent disciplinary authority by order dated 13th July, 2000 dismissed him from service under Regulation 26 of International Airport Authority of India (IAAI) Employees' (Conduct, Discipline & Appeal) Regulations, 1987. Respondent No. 1 filed a Departmental appeal against the order of dismissal, which was rejected on 8/20th November, 2000 by the (appellant) appellate authority.

5. Being aggrieved against the order of dismissal and the order of the appellate authority, the respondent No. 1 filed Writ Application No. 22034 (W) of 2000. This writ petition was disposed of by learned Single Judge of this Court directing that in the event of acquittal by the Criminal Appeal Court, it would be open to the petitioner to make appropriate representation before the airport authority for consideration of his case for reinstatement. In coming to the conclusion, learned Single Judge relied upon a judgment of Supreme Court in the case of Deputy Director of Collegiate Educntion (Admn.) v. V.S. Nagoor Meera reported in : [1995]2SCR308 .

6. The criminal appeal filed by respondent No. 1 against the conviction and sentence was allowed by this Court on 16th July 2004. The order of conviction and sentence was set aside and the appellant was acquitted. After acquittal, respondent No. 1 filed a representation praying for reinstatement in service. However, since the employer took no action, respondent No. 1 again moved Writ Application No. W.P. 21324 (W) of 2004. Judgment dated 22.12.2004 the writ petition was disposed of by this Court with the direction to the Chairman of the airport authority, who is the appellate authority, to dispose of the representation filed by respondent No. 1.

7. Considering the representation filed by the respondent No. 1 and after giving him personal hearing, the appellate authority by order dated 24.03.2005 set aside the order dated 13.07.2000, imposing penalty of dismissal from service and placed respondent No. 1 under suspension with effect from 13th July, 2000. Respondent No. 1 challenged the aforesaid order of suspension by filing the present writ petition. During the pendency of the writ petition, departmental proceeding was initiated and chargesheet was served on respondent No. 1 through Charged Memo dated 7th September, 2005. Therefore, he had filed CAN No. 9915 of 2005 in which he had sought for quashing of the Memorandum dated 7th September, 2005. The application was directed to be heard along with main matter. By an interim order this Court directed slay of departmental proceedings till disposal of the writ application.

8. It is not disputed that the factual allegations in the criminal proceedings and the allegations in the departmental proceedings are identical, witnesses of both proceedings are identical and documents relied upon also are identical. By judgement and order dated 23rd February, 2007, the learned Single Judge, Justice Pratap Kumar Ray, ordered reinstatement of the respondent No. 1 along with allowances and service benefits. The appellants have also been directed to 'allow the joining of the writ petitioner forthwith and the release all arrear salary and service benefits within a month from this date and to continue his salary, allowances and service benefits in accordance with law.' Hence, the appeal by the Airport Authority of India.

9. At the motion stage we declined to grant the stay of the judgment but fixed the final hearing of the appeal on 13th June, 2007. We have heard the learned Counsel for the parties at length.

10. Learned Counsel for the appellant has submitted that acquittal of respondent No. 1 cannot put an embargo on the right of the employer to conduct a departmental enquiry. According to learned Counsel, even when an employee is acquitted, the judgment passed by the Criminal Court has to be scrutinized by the employer to determine as to whether the employee is entitled to be reinstated in service or any further departmental proceedings have to be initiated against the delinquent employee. In the present case, undoubtedly, the service conditions of the employees of the Airport Authority of India are governed by the Airports Authority of India Employees (Conduct, Discipline and Appeal; Regulations, 2003. These regulations have been made in exercise of the powers conferred by Sub-section (1) read with Clause (b) of Sub-section (2) of Section 42 of the Airports Authority of India Act, 1994 by the Central Government. Therefore, these regulations being statutory in nature are binding on all the employees of the appellate authority. Respondent No. 1 has been suspended under Regulation 23. This regulation provides that where a penalty of dismissal imposed upon an employee is declared void by a Court of Law, and where the disciplinary authority decides to hold a further inquiry against the employee on the basis of which penalty of dismissal was imposed, the employee shall be deemed to have been placed under suspension by the competent authority from the date of original order of dismissal. The chargesheet has been issued to respondent No. 1 after due scrutiny of the entire material including the judgments of the Criminal Courts by the appellate authority. After due scrutiny it has been found by the appellate authority that even though respondent No. 1 has been acquitted of the criminal charges, he was involved in serious misconduct. He had been caught red handed while accepting bribe from a contractor. The respondent No. 1 has not been acquitted on the ground that there was no evidence against him. He has been acquitted only on benefit of doubt. The ground of his acquittal was that there was not sufficient evidence to prove the guilt of respondent No. 1 beyond reasonable doubt. This acquittal cannot be equated to a finding of innocence. It is not a case of complete exoneration. In the departmental proceedings an employee can be given a major punishment including punishment of dismissal in case serious charges of misconduct are established against him. In establishing the charge against the delinquent employee it would not be necessary for the employer to prove the charge beyond reasonable doubt. It would be sufficient to lead such evidence which would establish the charge on balance of probabilities. Therefore, the learned Single Judge has erred in law in foreclosing the option of the employer to conduct a departmental enquiry into the serious charges which have been levelled against the respondent No. 1. In such circumstances, the airport authority would be entitled to hold a regular departmental enquiry against respondent No. 1.

11. In support of his submission, the learned Counsel for the appellant has relied upon a number of judgments of the Supreme Court, namely, Ajit Kumar Nag v. General Manager reported in : AIR2005SC4217 ; South Bengal State Transport Corporation v. Swapan Kumar Mitra reported in 2006 AIR SCW 768; Banshi Dhar v. State of Rajasthan and Anr. reported in : (2007)ILLJ992SC ; Deputy Director of Collegiate Education (Admn.) v. V.S. Nagoor Meera reported in : [1995]2SCR308 ; Commissioner of Police, New Delhi v. Narender Singh reported in : AIR2006SC1800 p>

12. On the other hand, the learned Counsel for respondent No. 1 submits that the learned Single Judge has correctly come to the conclusion that on acquittal respondent No. 1 is entitled to reinstatement, he has been acquitted by the Appeal Court as the case put forward by the prosecution had been disbelieved. The learned Single Judge has come to this conclusion on consideration of the language of the Appeal Court while assessing the evidence led by the prosecution. The learned Single Judge has made particular reference to the observations of the Appellate Court that 'there was no such event of said shady transaction as alleged.' Thereafter, the learned Single Judge has observed as follows:

The finding and observation in the criminal appeal clearly lead this Court to conclude that the acquittal was on merit on assessing the evidence and materials clue to the findings, namely, 'that there was no materials to believe about the shady transaction as alleged and further on holding that there was a heavy shadow on the substratum of the prosecution case that money was paid as a gratification to the accused.

13. These observations according to the learned Counsel make it abundantly clear that the respondent No. 1 had been acquitted, as there was no material against him. This conclusion of the learned Single Judge, according to the learned Counsel, is further buttressed by the following observations mode by the Appeal Court while allowing the criminal appeal:

Hardly I find any material to place my reliance on such evidence so as to hold that really some sort of shady transaction as has been alleged from the side of the prosecution was going on in between the appellant on one side and P.W. 1 on the other.

Even further the Hon'ble Appeal Court has held that:

Due to non-mentioning of the important fact in the pre-trap memo that some arrangement was made for keeping the flash door partly open giving the witnesses a scope to see and hear out the conversation as was going on inside the aforesaid chamber, it is very hard to believe that the person concerned involved in such shady transaction would dare to carry out such transaction in presence of some unknown persons.

14. Taking into consideration all these observations made by the learned Appellate Court the learned Single Judge has further come to the conclusion that:

Hence, on a bare reading of the findings of the Hon'ble Appeal Court it appears that the alleged charge that the writ petitioner was caught red handed by the CBI trap on 13th April, 1991 while taking the bribe was wholly disbelieved by the Criminal Court. Though the language used 'benefit of doubt' for passing a judgment of acquittal, this Court is of the view due to aforesaid clear findings that the judgment of acquittal was on merit and it was a case of 'Hon'ble Acquittal.

15. Learned Counsel submits that the aforesaid observations clearly indicate that respondent No. 1 had been acquitted as there was no evidence against him. He is therefore clearly entitled to reinstatement. In support of his submission, learned Counsel for the appellant has placed strong reliance on the judgment of the Supreme Court in the case of G.M. Tank v. State of Gujarat and Ors. reported in : (2006)IIILLJ1075SC . He has also referred to the judgments in the case of R.P. Kapur v. Union of India and Anr. reported in : (1966)IILLJ164SC ; Capt. M. Paul Anthony v. Bharat Gold Mines Ltd. and Anr. reported in : (1999)ILLJ1094SC ; State of Orissa and Ors. v. Md. Illiyas reported in : AIR2006SC258 ; Banshi Dhar v. State of Rajasthan and Anr. reported in : (2007)ILLJ992SC ; Deputy Director of Collegiate Education (Admn.) v. V.S. Nagoor Meera reported in : [1995]2SCR308 .

16. Learned Counsel further argued that the enquiry which is to be conducted on the basis of the chargesheet, now served on respondent No. 1, is a mere eye wash as the disciplinary authority has already decided to punish him. This is evident from the noting made in the official record. The employer is merely acting on the advice given by the CBI. Therefore, the entire proceedings are vitiated.

17. We have anxiously considered the submissions made by the learned Counsel. Before we consider the fact situation in this case, it may be more appropriate to consider the judgments relied upon by the learned Counsel. In the case of S. Nagoor Meera (supra) the two Judges' Bench of the Supreme Court was dealing with an appeal filed by the management. The respondent therein had been issued a show-cause notice calling upon him as to why he should not be dismissed from service in view of the conviction by the Criminal Court. The show-cause notice expressly recited that inasmuch as the High Court has only suspended the sentence, his conviction is still in force. The respondent challenged the show-cause notice by filing an Original Application in the Tamil Nadu Administrative Tribunal (hereinafter referred to as 'the Tribunal'). His submission, which was upheld by the Tribunal was that inasmuch as the sentence imposed upon him by the Criminal Court has been suspended by the Appellate Court (High Court), no proceedings can be taken for terminating his service under and with reference to Clause (a) of the second proviso to Article 311(2) of the Constitution of India. The Tribunal allowed the Original Application and quashed the show-cause notice. The correctness of the aforesaid order was questioned by the Deputy Director of Collegiate Education in appeal.

18. The Supreme Court held as under:

8. We need not, however, concerns ourselves any more with the power of the Appellate Court under the Code of Criminal Procedure for the reason that what is relevant for Clause (a) of the second proviso to Article 311(2) is the 'conduct which has led to his conviction on a criminal charge' and there can be no question of suspending the conduct. We are, therefore, of the opinion that taking proceedings for and passing orders of dismissal, removal or reduction in rank of a Government servant who has been convicted by a Criminal Court is not barred merely because the sentence or order is suspended by the Appellate Court or on the ground that the said Government servant-accused has been released on bail pending the appeal.

10. What is really relevant thus is the conduct of the Government servant which has led to his conviction on a criminal charge. Now, in this case, the respondent has been found guilty of corruption by a Criminal Court. Until the said conviction is set aside by the Appellate or other High Court, it may not be advisable to retain such person in service. As stated above, if he succeeds in appeal or other proceeding, the matter can always be reviewed in such a manner that he suffers no prejudice.

19. In the case of Ajit Kumar Nag (supra) the three-Judges' Bench of the Supreme Court has held as hereunder:

11. As far as acquittal of the appellant by a Criminal Court is concerned, in our opinion, the said order does not preclude the Corporation from taking an action if it is otherwise permissible. In our judgment, the law is fairly well-settled. Acquittal by a Criminal Court would not debar an employer from exercising power in accordance with the rules and regulations in force. The two proceedings, criminal and departmental, are entirely different. They operate in different fields and have different objectives. Whereas the object of criminal trial is to inflict appropriate punishment on the offender, the purpose of enquiry proceedings is to deal with the delinquent departmentally and to impose penalty in accordance with the service rules. In a criminal trial, incriminating statement made by the accused in certain circumstances or before certain officers is totally inadmissible in evidence. Such strict rules of evidence and procedure would not apply to departmental proceedings. The degree of proof which is necessary to order a conviction is different from the degree of proof necessary to record the commission of delinquency. The rule relating to appreciation of evidence in the two proceedings is also not similar. In criminal law, burden of proof is on the prosecution and unless the prosecution is able to prove the guilt of the accused 'beyond reasonable doubt', he cannot be convicted by a Court of Law. In a departmental enquiry, on the other hand, penalty can be imposed on the delinquent officer on a finding recorded on the basis of 'preponderance of probability'. Acquittal of the appellant by a Judicial Magistrate, therefore, does not ipso facto absolve him from the liability under the disciplinary jurisdiction of the Corporation. We are therefore, unable to uphold the contention of the appellant that since he was acquitted by a Criminal Court, the impugned order dismissing him from service deserves to be quashed and set aside.

20. In the case of South Bengal State Transport Corporation (supra) (the two-Judges' Bench of Supreme Court) it has been held that:

10. Similarly in Senior Superintendent of Post Offices, Pathamthitta and Ors. v. A. Gopalan 1977(11) SCC 239, the view expressed in Nelson Motis v. Union of India and Ors. (supra) was fully endorsed by this Court and similarly it was held that the nature and scope of proof in a criminal case is very different from that of a departmental disciplinary proceeding and order of acquittal in the former, cannot conclude the departmental proceedings. This Court has further held that in a criminal case change has to be proved by proof beyond reasonable doubt while in departmental proceeding the standard of proof for proving the charge is mere preponderance of probabilities. Such being the position of law now settled by various decisions of this Court, two of which have already been referred to earlier, we need not deal in detail with the question whether acquittal in a criminal case will lead to holding that the departmental proceedings should also be discontinued. That being the position, an order of removal from service emanating from a departmental proceeding can very well be passed, even after acquittal of the delinquent employee in a criminal case. In any case, the learned Single Judge as well as the Division Bench did not base their decisions relying on the proposition that after acquittal in the criminal case departmental proceedings could not be continued and order of removal could not be passed.

21. In the case of Banshi Dhar (supra) (the two-Judges' Bench of the Supreme Court) the Supreme Court considered the question with regard to grant of back wages, if an employee is reinstated on being acquitted in the criminal case. In this case, the appellant had been convicted under Section 5(1)(d) of Prevention of Corruption Act read with Section 161 of the Indian Penal Code. He was placed under suspension during the pendency of the trial and on conviction he was dismissed from service. He was, however, acquitted by the High Court in appeal. In the meantime, the appellant had reached the age of superannuation. He, thereafter, filed a writ petition which was disposed of by the learned Single Judge of the High Court with the direction that in the event he files the representation before the competent officer with regard to pension, the same may be considered within a period of three months therefrom. The appeal filed against the judgment of the learned Single Judge was dismissed by the learned Division Bench. The employee approached the Supreme Court by challenging the orders of the learned Single Bench and Division Bench of the High Court as both the Courts had denied the back wages to him. Considering the facts and situation in that case, it has been held as follows:

9. No hard and fast rule can be laid down in regard to grant of back wages. Each case has to be determined on its own facts. A grave charge of criminal misconduct was alleged against him. He was also found guilty of the charges levelled against him by the Special Judge. The High Court while delivering its judgment dated 16.1.2001 in SB Criminal Appeal No. 68 of 1985 inter alia held that the prosecution has not been able to prove that any demand had been made by him.

10. It is now a trite law that judgment of acquittal itself would not have exonerated him of the charges levelled against him. He could have been proceeded against in a departmental proceeding, (See Manager, Reserve Bank of India v. S. Mani and Commr. of Police v. Narender Singh).

11. Departmental proceedings, however, could not be held as on the date of passing of the judgment of acquittal, he had already reached his age of superannuation. The learned Counsel may be right that the decisions of this Court referred to hereinbefore involved the respective appellants therein on charge of murder under Section 302 of the Indian Penal Code, but, as noticed, it has also been laid down that each case has to be considered on its own facts. The High Court refused to exercise its discretionary jurisdiction having regard to the aforementioned decision of this Court in Ranchhodji Chaturji Thakore. We do not see any reason to take a different view. Grant of back wages, it is well-settled, is not automatic. Even in cases where principles of natural justice have been held to have not been complied with, while issuing a direction of reinstatement, this Court had directed placing of the delinquent employee under suspension.

22. In Narender Singh's case (supra) (the two-Judges' Bench of Supreme Court) it has been held that:

13. It is now well-settled by reason of a catena of decisions of this Court that if an employee has been acquitted of a criminal charge, the same by itself would not be a ground not to initiate a departmental proceeding against him or to drop the same in the event an order of acquittal is passed.

23. In the case of G.M. Tank (supra) (the two-Judges' Bench) the Supreme Court has observed as follows:

20. It is thus seen that this is a case of no evidence. There is no iota of evidence against the appellant to hold that the appellant is guilty of having illegally accumulated excess income by way of gratification. The respondent failed to prove the charges levelled against the appellant. It is not in dispute that the appellant being a public servant used to submit his yearly property return relating to his movable and irnmoveable property and the appellant has also submitted his return in the year 1975 showing his entire movable and immovable assets. No query whatsoever was ever raised about the movable and immovable assets of the appellant. In fact, the respondent did not produce any evidence in support of and/or about the alleged charges levelled against the appellant. Likewise, the criminal proceedings were initiated against the appellant for the alleged charges punishable under the provisions of the PC Act on the same set of facts and evidence. It was submitted that the departmental proceedings and the criminal case are based on identical and similar (verbatim) set of facts and evidence. The appellant has been honourably acquitted by the competent Court on the same set of facts, evidence and witness and, therefore, the dismissal order based on the same set of facts and evidence on the departmental side is liable to be set aside in the interest of justice.

30. The judgments relied on by the learned Counsel appearing for the respondents are distinguishable on facts and on law. In this case, the departmental proceedings and the criminal are based on identical and similar set of facts and the charge in a departmental case against the appellant and the charge before the Criminal Court are one and the same. It is true that the nature of charge in the departmental proceedings and in the criminal case is grave. The nature of the case launched against the appellant on the basis of evidence and material collected against him during enquiry and investigation and as reflected in the chargesheet, factors mentioned are one and the same. In other words, charges, evidence, witnesses and circumstances are one and the same. In the present case, criminal and departmental proceedings have already noticed or granted on the same set of facts, namely, raid conducted at the appellant's residence, recovery of articles therefrom. The Investigating Officer Mr. V.B. Raval and other departmental witnesses were the only witnessed examined by the enquiry officer who by relying upon the statement came to the conclusion that the charges were established against the appellant. The same witnesses were examined in the criminal case and the Criminal Court on the examination came to the conclusion that the prosecution has not proved the guilt alleged against the appellant beyond any reasonable doubt and acquitted the appellant by its judicial pronouncement with the finding that the charge has not been proved. It is also to be noticed that the judicial pronouncement was made after a regular trial and on hot contest. Under these circumstances, it would be unjust and unfair and rather oppressive to allow the findings recorded in the departmental proceedings to stand.

24. In coming to this conclusion the Supreme Court took into consideration the observations made in two earlier cases, namely, R.P. Kapur v. Union of India and Anr. reported in : (1966)IILLJ164SC , and Corporation of the City of Nagpur and Anr. v. Ramchandra and Anr. reported in : (1981)IILLJ6SC . In R.I. Kapur's case (supra) (the five-Judges' Bench), the Supreme Court laid down the law as follows (page 792, para 9):

9. If the trial of the criminal charge results in conviction disciplinary proceedings are bound to follow against the public servant so convicted, even in case of acquittal proceedings may follow where the acquittal is other than honourable.

25. In Ramchandra's case (supra) (the three-Judges' Bench) the Supreme Court observed as follows:

6. The other question that remains is if the respondents are acquitted in the criminal case whether or not the departmental inquiry pending against the respondents would have to continue. This is in matter which is to be decided by the department after considering the nature of the findings given by the Criminal Court. Normally where the accused is acquitted honourably and completely exonerated of the charges it would not be expedient to continue a departmental inquiry on the very same charges or grounds or evidence, but the fact remains, however, that merely because the accused is acquitted, the power of the authority concerned to continue the departmental inquiry is not taken away nor is its direction in any way fettered. However, as quite some time has elapsed since the departmental inquiry had started the authority concerned will take into consideration this factor in coming to the conclusion if it is really worthwhile to continue the departmental inquiry in the event of the acquittal of the respondents, If, however, the authority feels that there is sufficient evidence and good grounds to proceed with the inquiry, it can certainly do so. In case the respondents are acquitted, we direct that the order of suspension shall be revoked and the respondents will be reinstated and allowed full salary thereafter even though the authority chooses to proceed with the inquiry. Mr. Sanghi states that if it is decided to continue the inquiry, as only arguments have to be heard and orders to be passed, he will see that the inquiry is concluded within two months from the date of the decision of the Criminal Court. If the respondents are convicted, then the legal consequences under the rules will automatically follow.

26. As noticed earlier, the Supreme Court distinguished the ratio in the following judgments in the cases of Ajit Kumar Nag (Supra), Depot Manager, A.P. SRTC v. Mohd. Yousuf Miya and Ors. reported in : (1997)IILLJ902SC , State of A.P. v. Sree Rama Rao reported in : (1964)IILLJ150SC , and Krishnakali Tea Estate v. Akhil Bharatiya Chah Mazdoor Sangh reported in : (2004)IIILLJ772SC .

27. We may also notice here the observations of the Supreme Court in the case of Md. Illiyas (supra) (the two-Judges' Bench). In this case, the Supreme Court laid down the law after interpreting the earlier judgments of the Supreme Court in the following words:

12. When the allegation is of cheating or deceiving, whether the alleged act is wilful or not depends upon the circumstances of the case concerned and there cannot be any strait-jacket formula. The High Court unfortunately did not discuss the factual aspects and by merely placing reliance on an earlier decision of the Court held that prerequisite conditions were absent. Reliance on the decision without looking into the factual background of the case before it, is clearly impermissible. A decision is a precedent on its own facts. Each case presents its own features. It is not everything said by a Judge while giving judgment that constitutes a precedent. The only thing in a Judge's decision binding a party is the principle upon which the case is decided and for this reason it is important to analyse a decision and isolate from it the ratio decidendi. According to the well-settled theory of precedents, every decision contains three basic postulales: (i) findings or material facts, direct and inferential finding of facts is the inference which the Judge draws from the direct, or perceptible facts; (ii) statements of the principles of law applicable to the legal problems disclosed by the facts; and (iii) judgment based on the combined effect of the above. A decision is an authority for what it actually decides. What is of the essence in a decision is its ratio and not every observation found therein nor what logically flows from the various observations made in the judgment. The enunciation of the reason or principle on which a question before a Court has been decided is alone binding as a precedent. (See State of Orissa v. Sudhansu Sekhar Misra and Union of India v. Dhanwanti Devi). A case is a precedent and binding for what it explicitly decides and no more. The words used by Judges in their judgments are not to be read as if they are words in an Act of Parliament, In Quinn v. Leathern the Earl of Halsbury, L.C. observed that every judgment must be read as applicable to the particular facts proved or assumed to be proved, since the generality of the expressions which are found there are not intended to be the exposition of the whole law but governed and qualified by the particular facts of the case in which such expressions are found and a case is only an authority for what it actually decides.

28. In the case of Capt. M. Paul Anthony (supra) (the two-Judges' Bench) the Supreme Court has held as follows:

33. Since in the instant case the appellant was not provided any Subsistence Allowance during the period of suspension and the adjournment prayed for by him on account of his illness, duly supported by medical certificates, was refused resulting in ex parte proceedings against him, we are of the opinion that the appellant has been punished in total violation of the principles of natural justice and he was literally not afforded any opportunity of hearing. Moreover, as pleaded by the appellant before the High Court as also before us that on account of his penury occasioned by non-payment of Subsistence Allowance, he could not undertake a journey to attend the disciplinary proceedings, the findings recorded by the Inquiry Officer at such proceedings, which were held ex parte, stand vitiated.

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 Inquiry 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 Inquiry Officer and the Inquiry 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.

35. Since the facts and the evidence in both the proceedings, namely, the departmental proceedings and the criminal case were the same without there being any iota of difference, the distinction, which is usually drawn as between the departmental proceedings and the criminal case on the basis of approach and burden of proof, would not be applicable to the instant case.

36. For the reasons stated above, the appeal is allowed, the impugned judgment passed by the Division Bench of the High Court is set aside and that of the learned Single Judge, in so far as it purports to allow the writ petition, is upheld. The learned Single Judge has also given liberty to the respondents to initiate fresh disciplinary proceedings. In the peculiar circumstances of the case, specially having regard to the fact that the appellant is undergoing this agony since, 1985 despite having been acquitted by the Criminal Court in 1987, we would not direct any fresh departmental inquiry to be instituted against him on the same set of facts. The appellant shall be reinstated forthwith on the post of Security Officer and shall also be paid entire arrears of salary, together with all allowances from the date of suspension till his reinstatement, within three months. The appellant would also be entitled to his cost which is quantified as Rs. 15,000/-.

29. In the case of Suresh Pathrella v. Oriental Bank of Commerce reported in : AIR2007SC199 , (two-Judges' Bench) the Supreme Court has held as follows:

11. In our view, the findings recorded by the learned Single Judge are fallacious. This Court has taken the view consistently that acquittal in a criminal case would be no bar for drawing up a disciplinary proceeding against the delinquent officer. It is well-settled principle of law that the yardstick and standard of proof in a criminal case is different from the disciplinary proceeding. While the standard of proof in a criminal case is a proof beyond all reasonable doubt, the proof in a departmental proceeding is preponderance of probabilities.

30. A perusal of the various pronouncements by the Supreme Court, as noticed above, in our opinion, would indicate that the law is well-settled that acquittal in the criminal case would be no bar for drawing a disciplinary proceeding against the delinquent officer. It also seems to be well-settled that the two proceedings, criminal and departmental, are entirely different. They operate in different fields and have different objectives. The objective of a criminal trial is to punish the offender in case he is found guilty, on the basis of the prosecution producing evidence beyond reasonable doubt, pointing towards the guilt of the offender. In case the prosecution fails to reach the required standard beyond reasonable doubt, the accused is entitled to acquittal. This acquittal cannot be equated with a declaration of innocence. In other words even if accused is found not guilty of the criminal charges it does not amount to a declaration that the accused may not be guilty of a misconduct under the relevant rules and regulations governing the service conditions of the accused, as an employee of the State or other authority as defined under Article 12 of the Constitution. This view of ours will find support from the observations made by the Supreme Court in the ease of Ajit Kumar Nag (supra). It also seems to be well-settled that rules relating to appreciation of evidence in the two proceedings i.e., a criminal prosecution and departmental enquiry are also different. Firstly, in a criminal trial the prosecution has to prove the guilt of the accused 'beyond reasonable doubt'. In departmental proceeding the charge can be held to be proved on 'preponderance of probabilities'. Secondly, in a criminal trial, incriminating statements made by an accused in certain circumstances or before certain officers are totally inadmissible in evidence. This is not the position in a departmental enquiry, where the Enquiry Officer can rely on evidence without following the strict rules of evidence. In such proceedings confessional statements and hearsay evidence can be relied upon. In this view we support from the Full Bench judgment or the Punjab and Haryana High Court in the case of State of Haryana and Ors. v. Ram Chander reported in . In this case O. Chinnappa Reddy, Acting Chief Justice, speaking for the Court, observed as follows:

2. The first question for consideration is, whether the evidence of the checkers as to what they were told by the passengers was not legal evidence in the domestic enquiry against the respondent. Time and again, it has been repeated by the Supreme Court that domestic tribunals, in the absence of statutory guidance have the right to regulate their own procedure and are also not bound by the strict rules of evidence. The rules of procedure and the rules of evidence observed in Courts are often misplaced in domestic enquiries. A Domestic Tribunal whose procedure is not regulated by a statute is free to adopt a procedure of its own so long as it conform to principles of natural Justice, It is equally free to receive evidence from whatever source if it is 'logically probative'. In State of Mysore v. Shivabasappa : (1964)ILLJ24SC , the Supreme Court observed as follows:

Domestic Tribunals exercising quasi-judicial functions are not Courts and, therefore, they are not bound to follow the procedure prescribed for trial of actions in Courts nor are they bound by strict rules of evidence. They can, unlike Courts, obtain all information, material for the points under enquiry from all sources, and through all channels, without being fettered by rules and procedures which govern proceedings in Court. The only obligation which the law casts on them is that they should not act on any information which they may receive unless they put it to the party against whom it is to be used and give him a fair opportunity to explain it. What is a fair opportunity must depend on the facts and circumstances of each case, but where such an opportunity has been given, the proceedings are not open to attack on the ground that the enquiry was not conducted in accordance with the procedure followed in Courts.These observations were quoted with approval in K.L. Shinde v. State of Mysore 1976(3) SCC 70 : AIR 1976 SC 1980. It was held in the latter case that previous statements of witnesses who resiled from them at the domestic enquiry were admissible in evidence against the delinquent. The Supreme Court observed:

2. It may also be observed that departmental proceedings do not stand on the same footing as criminal prosecutions in which high degree of proof is required. It is true that in the instant case reliance was placed by the Superintendent of Police on the earlier statements made by the three police constables including Akki from which they resiled but that did not vitiate the enquiry or the impugned order of dismissal, as departmental proceedings are not governed by strict rules of evidence as contained in the Evidence Act.Hearsay evidence may suffer from the following infirmities noticed by Phipson in his 'Law of Evidence.'

(1) the irresponsibility of the original declarant, whose statements were made neither on oath nor subject to cross-examination; (2) the depreciation of truth in the process of repetition and (3) the opportunities for fraud its admission would open; to which are sometimes added (4) the tendency of such evidence to protract legal inquiries, and (5) to encourage the substitution of weaker for stronger proofs. Despite these infirmities Phipson considered that such evidence could not be truly called irrelevant. A belief in hearsay, he said, was often regarded as instinctive; at all events it was universally sanctioned by experience, since nine-tenths of the world's business was conducted on its basis. He further pointed out that it was significant that relaxations of the rule were constantly sanctioned by stature. We may mention here that in England considerable inroad has made by statute recently and first-hand hearsay is now admissible in evidence in Courts of Law. In India -too, exclusion of hearsay evidence has never been an absolute rule. There have always been exceptions to the hearsay rule even in Courts of Law. In fact great probative value is attached to dying declarations and retracted confessions which constitute but hearsay evidence. It is true that in Courts of Law hearsay evidence is not admissible except to the extent permitted by the Evidence Act. But, there is no reason why this strict rule of evidence should be applied to proceedings before domestic tribunals. Hearsay evidence is 'logically probative' though its probative value may be strong or weak according to the facts and circumstances of a case. If it is 'logically probative.' A Tribunal is entitled to act upon it.

31. We may at this stage also notice the observations made by Lord Denning in the case of M.R. in T. A. Miller Ltd. v. Minister of Housing and Local Government reported in 1968(1) WLR 992, which have been approvingly quoted by O. Chinnappa Reddy, Acting Chief Justice, as follows:

3. A Tribunal of this kind is master of its own procedure, provided that the rules of natural justice are applied. Most of the evidence here was on oath, but that is no reason why hearsay should not be admitted where it can fairly be regarded as reliable. Tribunals are entitled to act on any material which is logically probative, even though it is not evidence in a Court of Law. See Reg. v. Deputy Industrial Injuries Commr. Ex parte Moore 1965(1) QB 456.

32. If we examine the facts of the present case, keeping in view the aforesaid law, it becomes apparent that the decision taken by the appellants to initiate departmental proceedings is unassailable. The learned Single Judge, in our opinion, has erroneously come to the conclusion that in case the department is permitted to hold enquiry into the charges it would be giving an opportunity to the employer to sit in appeal over the findings recorded by this Court in the Criminal Appeal bearing No. CRA 393 of 1999 dated 16th July, 2004. The perspective in the two proceedings i.e. criminal trial and domestic enquiry, from which the same evidence is to be evaluated is distinct from each other. Therefore, even if the Enquiry Officer comes to a different conclusion it would not be a reflection on the findings given by the Judge in the Criminal Trial Court i.e. the Trial Court or the High Court as a Court of Appeal.

33. The learned Single Judge has overlooked the clear enunciation of the law by the Supreme Court that the objective of the criminal trial and the departmental proceeding is different. Criminal trial is held to punish an accused having committed a criminal offence. Departmental enquiry is held to inquire into charges of misconduct. Misconduct whilst performing one's duties in service is in much wider term than the commission of a criminal offence. The ingredients of establishing the guilt of an accused in a criminal offence are not the same as the ingredients which may be necessary for establishing misconduct of an employee under the rules and regulations governing the service conditions of the employee. The charge levelled against the respondent when examined in the light of the above cannot be said to be identical to the charge which was framed against him in the Criminal Court. The charges framed against respondent No. 1 in the Trial Court (criminal trial) are as follows:

Charge with two Heads.

1. Shri N.C. Sil. Judge, 24-Parganas, 1st Special Court, Alipore, hereby charge you P. K. Banerjee, as follows:

Firstly - that you being a public servant employed as Asstt. Engineer (Civil), Maintenance Division of International Airport Authority of India, Calcutta, collusion with you colleague Shri Gautam Das, Junior Engineer in the same unit of the International Airport Authority of India, Calcutta on 30.4.91 demanded and accepted in office chamber an amount of Rs. 3,000/- out of total demand of Rs. 6,000/- from Shri Shib Nath Pramanik for yourself illegal gratification other than legal remuneration as motives of reward towards helping Shri Pramanik to pass the pending bills and thereby committed an offence under Section 7 of Prevention of Corruption Act, 1988 read with Section 34 of the Indian Penal Code and within my cognizance.

Secondly - that being a public servant employed as such on the aforesaid date by corrupt and illegal means or by abusing your official position as such public servant obtained for yourself pecuniary advantage to the extent of Rs. 3,000/- from Shri Shib Nath Pramanik and thereby committed offence specified in Section 13(1)(d) of PC Act, 1988 punishable under Section 13(2) of the said Act and within any cognizance.

And I hereby direct that you be tried on the said charges.

Charges are read over and explained to the accd. when he pleads not guilty and claims to be tried.

Sed/- Illegible

Judge,

24-Parganas, 1st Spl. Court,

Alipore.

Dated Alipore, the

15th day of March. 1995.

34. In the departmental proceeding the charge reads as follows:

Article I

Sh P. K. Banerjee while functioning as Asstt. Engineer (Civil), now designated as Asstt. Manager (Engg-Civil) in Civil Maintenance Division at Kolkata Airport in addition to other duties was responsible for supervising the work of, M.O. IAAI Residential Colony during 1988-89 SH: Modification and enlargement of Children's Park near Type 'A' quarters in IAAI residential colony, Kolkata.

Vide contract No. 10/E.E.-AMD/89-90 dated 01.06.1989 an agreement was executed between the erstwhile IAAI and M/s. Tarashankar Construction Company whereby M/s. Tarashankar Construction Company was authorized to carry out the work of, M.O. IAAI residential Children's Park near Type A quarters in IAAI residential colony, Kolkata. It is reported that on 30.04.1991, Shri P. K. Banerjee demanded and accepted illegal gratification of Rs. 3,000/- from Shri Shibnath Pramanik, an authorized representative of M/s. Tarashankar Construction Company, for the purpose of preparing and passing the final bill in favour of M/s. Tarashankar Construction Company for having executed the above job. He was caught red handed by the CBI which accepting the bribe. Thus, by his above act Shri P. K. Banerjee has shown negligence in performance of duty, exhibited lack of integrity and acted in a manner unbecoming of an employee of the authority thereby violating Regulation 4(i)(a), 4(i)(d) and 5(ix) of AAI Employees (Conduct, Discipline and Appeal) Regulations, 2003, Further, by taking illegal gratification to which he was not entitled, Shri P. K. Banerjee has committed misconduct under Regulation 5(ii) of AAI Employees (Conduct, Discipline and Appeal) Regulations, 2003.

Sd/-

(A.K. Misra)

Member (P & E)

Disciplinary Authority.

35. A perusal of the above would show that the charge in the departmental proceeding relates to negligence in performance of duty. The aforesaid charge has been elaborated in the list of allegations. This list of allegations contains details of the alleged negligence in performance of the duties by the respondent. We have also examined the judgment of the learned Trial Court. A number of witnesses have consistently narrated the story about the confession made by the respondent before the CBI at the time of the raid itself. Therefore, the Enquiry Officer would have to assess the evidentiary value of the evidence given by these witnesses. This evidence may be inadmissible in the criminal trial. In fact, the Trial Court has not made any assessment of the confessional statement allegedly made by the respondent to the CBI. The reason is obvious. The statement would not have been admissible in evidence. It has been pointedly stated by P.W.I that Shri P. K. Banerjee confessed that he had taken money from him (P.W. 1). The fact of this confession is also supported by the statement of P.W. 4, He also stated that Shri Banerjee, (accused No. 1) also confessed the same.

36. In the case of Narender Singh (supra) the Supreme Court considered the question as to whether a confession would be admissible in evidence in departmental proceedings. Therein the respondent, a constable in the Delhi Police was prosecuted under Section 308/34 of the Penal Code. While in police custody he made confessional statement as regards his involvement in the said offence. Since apart from that confession there was no material on record, the respondent was discharged from criminal case. Thereafter, a departmental enquiry was initiated against him on the basis of the confessional statement made by him. The departmental enquiry culminated in his dismissal from service. He challenged the order of dismissal before the Central Administrative Tribunal (hereinafter CAT). The CAT set aside the order of dismissal. It was held that the bar contained under Sections 25 and 26 of the Evidence Act would be applicable even to departmental proceedings. Therefore, the Tribunal allowed the original application and set aside the writ petition filed against the order of CAT was dismissed by the High Court in limine. Considering the entire case law the Supreme Court held as follows:

13. It is now well-settled by reason of a catena or decisions of this Court that if an employee has been acquitted of a criminal charge, the same by itself would not be a ground not to initiate a departmental proceeding against him or to drop the same in the event an order of acquittal is passed.

14. In Manager, Reserve Bank of India v. S. Mani, this Court held: (SCC p 109 para 12)

12. It is trite that a judgment of acquittal passed in favour of the employees by giving benefit of doubt per se would not be binding upon the employer' [See Bank of India v. Degala Swyanarayana; Ajit Kumar Nag v. G.M. (PJ). India Oil Corporation Ltd.]23. The Tribunal as also the High Court were, therefore, not correct in arriving at the finding that the said confession was not admissible even in a departmental proceeding.

24. In Kuldip Singh v. Stale of Punjab this Court held: (SCC p. 664, para 10)10. Now coming to the main contention of the learned Counsel for the appellant, it is true that a confession or admission of guilt made by a person accused of an offence before, or while in the custody of, a police officer is not admissible in a Court of Law according to Sections 25 and 26 of the Evidence Act, 1872 but it is equally well-settled that these rules of evidence do not apply to departmental enquiries....

37. In view of the aforesaid statement of law it becomes obvious that the Enquiry Officer would be entitled to take into consideration the confession made by the petitioner before the CBI. Even though, the same was not relied upon by the Criminal Court in view of Sections 25 and 26 of the Indian Evidence Act, 1872 and Section 162 of the Criminal Procedure Code, 1973. This bar is not applicable in departmental proceedings. Therefore, the Enquiry Officer would be entitled to take into consideration the evidentiary value of the confession made by the respondent.

38. The other instance that seems to have weighed with the Appellate Court is that there is no mention in the pre-raid memo with regard to the arrangement having been made for the door being kept open. Again the evidence on this may not have been sufficient to say, that the fact has been proved beyond reasonable doubt in a criminal trial, but the Enquiry Officer would have to look at the evidence on the basis of preponderance of probabilities. P.W. 12, the leader of the CBI Trap-party, has categorically slated 'that he made an arrangement to keep the door of the chamber of accused No. 1 partly opened so that one can see inside the chamber from the outside.' The statement of P.W.I is corroborated by the statements of P.W. 2 and P.W. 3 who stated in their evidence that they witnessed the transaction of bribe from outside the chamber as the door of the chamber was partly opened. He found that the evidence given by the leader of the Trap-party is corroborated by the contents of Post-Trap Memorandum (Ext. 4). In this Memorandum it is categorically stated that P.W. 12 made arrangement to keep the door of the chamber partly open. The Trial Court after assessing entire evidence came to the conclusion that the prosecution has been able to prove the case beyond reasonable doubt.

39. From the above, it would become apparent that this cannot be said to be a case of no evidence. It cannot be said that even if the entire evidence is accepted as true, it would still lead to the conclusion that the respondent No. 1 was innocent of having committed any crime. We, therefore, hold that initiation of the departmental proceedings against the respondent No. 1 cannot be said to be vitiated or without jurisdiction.

40. Learned Counsel for the respondent No. 1 had vehemently argued that the departmental proceedings have been initiated with a closed mind. It was also submitted that the entire proceedings have been unduly influenced by the advice given by the CBI for conducting a departmental enquiry. We are unable to accept the aforesaid submission made by the learned Counsel. The learned Counsel for the respondent has produced the relevant record before this Court. A perusal of the same would show that initially the matter was considered by the General Manager (Personal) on 21.06.2000. It was at the stage when the Special Court of Alipore, Calcutta had convicted the petitioner by judgment and order dated 10.12.1999. The G.M.(Law) had advised to initiate departmental proceedings in the case of Shri Goutam Das, Junior Engineer (Civil) who had acquitted by the Court. He also pointed out that on the strength of the Criminal Court Order, services of the petitioner could be terminated, by virtue of the powers conferred on the disciplinary authority under Section 33 and clause 26 of the AAI Employees CDA Regulations. He also noticed that the petitioner had preferred an appeal against conviction. But the Legal Department was of the opinion that his appeal against the conviction cannot be binding on the disciplinary authority from taking any action against the convicted official. This note was submitted for consideration of the disciplinary authority in accordance with Clause 33 of the CDA Regulations. On due consideration dated 29th June, the disciplinary authority passed an order as follows:

After careful consideration and as per CDA regulations Clause 33, I am convinced that the penalty of dismissal from service should be imposed.

41. Since these observations were made by the disciplinary authority immediately after the conviction of the petitioner it cannot be said that the subsequent proceedings had been commenced with the close mind. Similarly, the representation of the petitioner for reinstatement during pendency of the appeal was rejected after due consideration. Thereafter, the consideration of the case of the petitioner for reinstatement after acquittal commences with the letters dated 20th August, 2004 and 2nd September, 2004. The Deputy General Manager (Pers) examined his claim on 4th October, 2004. The note sets out the various options which are open to the disciplinary authority when a Government servant is acquitted in appeal. It is pointed out that the judgment has to be examined as to whether:

i) acquittal should he challenged in still Higher Court;

ii) whether despite acquittal the facts and circumstances of the case such as to call for a departmental inquiry against the Government servant on the basis allegations of which he was convicted.

42. The note points out that if it is decided to take the matter to the still Higher Court action to institute proper proceedings should be taken and the penalty imposed shall not be set aside during pendency of such proceedings. It is further pointed out that if it is decided to hold departmental inquiry a formal order should be made for the following:

a) To set aside the order imposing penalty on the basis of conviction.

b) For ordering departmental inquiry.

43. It is further observed that as per the Government rules in such cases consultation with CVC is also required. Thereafter, the note was duly processed. After due consideration the petitioner was called for a personal hearing by the Chairman on 25.02.2005. The Chairman also directed that the judgment of the Hon'ble High Court may be carefully perused leading to the dismissal of the petitioner and the available options be clearly spelt out in view of CBI's advice for regular departmental action against the officer. The Chairman observed that once necessary spadework has been done in this regard, a final decision will be taken soon after the personal hearing, so that a formal order communicating the reasoned decision on the representation dated 14.01.2004 could be issued before the deadline i.e. 31.03.2005. After hearing the petitioner on 25.02.2005, the Chairman has passed a speaking order. The Chairman observed that although on the face of it, the submissions made by the petitioner during the personal hearing merit sympathetic consideration, however, he does not fully agree with his contentions particularly that he had no role to play in processing the contractor's bills. As a responsible officer, he was required to discharge the duties allotted to him diligently and with sincerity and cannot afford to work as a mere post office, and was required to check and verify the papers submitted to him carefully and cautiously. The Chairman also observed that the Hon'ble High Court, Calcutta, while setting aside the conviction order of the Trial Court has acquitted Sri P. K. Banerjee 'upon benefit of doubt' and he has not been exonerated on merits. It is further observed that the incident in which the petitioner was involved is a serious misconduct and, therefore, in totality of circumstances a direction was issued that major penalty proceedings be initiated. At the same time the order of dismissal was set aside and petitioner was deemed to have been placed under suspension w.e.f. 13th July, 2000. The aforesaid sequence of events clearly indicate that the decision to hold a department inquiry against the petitioner has been taken in accordance with law.

44. It is noteworthy that while considering the representation made by the petitioner for reinstatement, the judgment of the Appellate Court was scrutinized by the disciplinary authority. On examination of the judgment the competent authority has come to the conclusion that prima facie the respondent has not been completely exonerated by the High Court in the judgment rendered in Criminal Appeal No. 393 of 1999. The respondents has been merely given a benefit of doubt and acquitted. In view of the conclusion reached, by the disciplinary authority, in order to satisfy ourselves of the correctness thereof, we have examined the judgments of the Trial Court, and the Appellate Court. On perusal of the judgments we are unable to hold that the petitioner has been declared to be innocent. Learned Counsel for the respondent No. 1 had placed strong reliance on the judgment of the Supreme Court in the case of G. M. Tank (supra). The aforesaid observations, have to be considered on the facts of that case. The Supreme Court, in that case, was clearly dealing with a case of 'No Evidence'. It is categorically observed that 'it is thus seen that this is a case of no evidence. There is no iota of evidence against the appellant to hold that the appellant is guilty of having illegally accumulated excess income by way of gratification. The respondent failed to prove the charges levelled against the appellant. It is not in dispute that the appellant being a public servant used to submit his yearly property return relating to his movable and immoveable property and the appellant has also submitted his return in the year 1975 showing his entire movable and immovable assets. No query whatsoever was ever raised about the movable and immovable assets of the appellant. In fact, the respondent did not produce any evidence in support of and/or about the alleged, charges levelled against the appellant. Likewise, the criminal proceedings were initiated against the appellant for the alleged charges punishable under the provisions of the PC Act on the same set of facts and evidence. It was submitted that the departmental proceedings and the criminal case are based on identical and similar (verbatim) set of facts and evidence. The appellant has been honourably acquitted by the competent Court on the same set of facts, evidence and witness and, therefore, the dismissal order based on the same set of facts and evidence on the departmental side is liable to be set aside in the interest of justice.' Such is not a situation in the present case. In our opinion the present is not a case of no evidence it is a case of not sufficient evidence. There is a clear distinction between the two situations. Therefore, in our opinion, the observations in G. M. Tank's case (supra) would not be applicable in the fads and circumstances of the present case. In this case, before concluding that it is necessary to hold a departmental enquiry, the disciplinary authority has also considered the observations made by the Appeal Court to the effect that due to non-mentioning of arrangement to keep the flush door open in the pre-trap memo, it could hardly be accepted that such arrangement was made for keeping the door partly open. The disciplinary authority was certainly aware of the entire reasoning of the Appellate Court. The disciplinary authority was aware of the conclusion of the Appellate Court that 'hardly, I find any material to place reliance on such evidence so as to hold that really some sort of shady transaction as has been alleged from the side of prosecution was going on between the petitioner and P.W. 1.' The disciplinary authority also notices that, in conclusion it is observed by the Court of Appeal that present case casts 'serious doubt' on the allegation. On a very close scrutiny of the entire matter the disciplinary authority has concluded that it would not amount to an honourable acquittal. We are inclined to accept the reasons of the disciplinary authority, as we are also of the opinion that this acquittal can hardly be equated with the declaration of innocence of the respondent. In view of the above, we hold that the appellants are justified in issuing chargesheet to the respondent.

45. We, therefore, allow the appeal, set aside the judgment of the learned Single Judge and dismiss the writ petition.

46. No order as to costs.

47. Urgent xerox certified copy of this order, if applied for, be supplied to the learned Counsel for both parties, after compliance with due formalities.

Ashim Kumar Banerjee, J.

48. I agree.

Later:

48. After the judgment was pronounced the learned Counsel for the respondents prays for stay of operation of the judgment. We decline to grant the stay of operation of the judgment.