Executive Engineer vs Khatija Begum and Ors.

This appeal is directed against the judgement and order dated 09.09.1996 passed by the learned Single Judge in SWP No. 240 of 1994. This

appeal has been preferred by the State.

We have heard Mr. Attar, learned counsel for the appellant as well as Mr. Zahoor A. Shah learned counsel for the respondents. In view of the

order that we propose to pass, necessary particulars leading to the filling of present appeal and obviated.

Respondentwrit petitioner was working as Assistant Store Keeper, Mugal Road, Shopian. The allegations was levelled against him that while

working as such he has misappropriated 1200 bags of cement and according to the appellant, after enquiry it was found that the writ petitioner has

misappropriated 1200 bags of cement and it was also admitted by the writ petitioner by filling an affidavit. It is submitted by Mr. zahoor A. Shah

that the writ petitioner never admitted the fact that he has misappropriated 1200 bags of cement. This is a disputed question of fact as to whether

the affidavit purportedly filled by the writpetitioner before the competent authority, admitting the misappropriation of 1200 bags of cement, would

amount to admission or not. Mr. Attar, learned counsel for the appellant has also referred to application dated 28.12.1998 marked as annexure D

in the memo of appeal, which suggests that writ petitioner has admitted to have misappropriated 1200 bags of cement and for which he has

tendered apology. According to the learned counsel for the appellant, on the basis of this admission order for recovery of amount was passed

which has been challenged by filling the writ petition.

We are not at all interested to enter into the controversy of these facts. What has happened was that a criminal case was also instituted against

the respondent under Section 409 of the RPC, which has landed in acquittal. The learned Single Judge was of the view that single Judge was of the

view that since the criminal case, registered against the respondentwrit petitioner, landed in acquittal, the departmental proceedings can not sit over

the judgement of the criminal court and the appellant is not competent to hold a separate departmental enquiry against the respondent. The view

taken by the learned Single Judge, reads:

Apart from the fact that this reasoning is based on the principle that when an acquittal is recorded by a criminal court on the basis of same facts

and evidence, it would not only be futile, but also improper for the departmental authorities to examine the same facts over again, coming to a

different finding and punish the delinquent. Reaching a different conclusion by improving the deficiencies and weaknesses pointed out by a criminal

court would not be difficult for it for punishing a delinquent, which would be most improper, unfair and arbitrary exercise of Executive power"".

The learned Single Judge further observed in his order, as under:

Having found in the preceding part of this judgement that departmental proceedings cannot be held after acquittal by the criminal court, this

question need not be elaborated further.

We are of the clear view that afore said finding of the learned Single Judge does not lay down good law. By now it is well settled principle of

law that acquittal in a criminal case would not be a bar for the appropriate authority to initiate departmental proceedings against a government

servant. In other words the appropriate authority is empowered to initiate disciplinary proceedings independently of the acquittal by a criminal

court. This principle has as rational basis. The standard of proof in a criminal case and in departmental proceedings are at different radiations.

Where in a criminal case the yardsticks of proof of guilt is beyond reasonable doubt, in the case of departmental proceedings the standard of proof

is preponderance of probabilities. This being a settled position of law, acquittal in a criminal case would not be a bar for the appropriate authority

to initiate a departmental proceedings against a delinquent government servant and arrive at a different conclusion than the conclusion reached by

the criminal court. This being a settled position of law enunciated by catina of decisions of the Supreme Court, we are clearly of the view that the

findings of the learned Single Judge, as observed above, does not lay down good law.

In the result, there is merit in this appeal, which is accordingly allowed. The judgement and order dated 09.09.1996 passed by the learned

Single judge in SWP No. 940 of 1994 is quashed and set aside.

It is stated that during the pendency of this appeal, appellant has died and this appeal is survived by his legal heirs. We make it clear that this

order would not be a bar for the legal heirs to claim pensionary and other benefits, it they are otherwise entitled to the same in accordance with

rules. No costs.