Shaik Kasim vs The Superintendent of Post Offices, Chingleput Dn. and Another

(1) An interesting and important question arises in this writ proceeding, upon which I find that, though there is no paucity of authorities, the central

principle has not been analysed or discussed at any length in any of the decisions cited before me. The problem involved is whether, when a

Criminal Court acquits a Government servant upon grave charges involving offences under the Penal Code, and the acquittal is not upon some

collateral ground, such as the absence of due sanction or a technical plea of defence, but substantially on the merits, a Domestic Tribunal, such as a

higher authority exercising disciplinary jurisdiction, would be justified in disregarding the acquittal altogether, or in recording a conclusion

inconsistent with the acquittal, and finding the Government servant guilty of the identical charges, upon identical facts. The matter arises against the

following background of established facts.

(2) The petitioner became a servant of the Government of India in the Posts and Telegraphs Department in 1936. From the year 1956, he was

serving as Sub Postmaster at various places. On 9-3-1959, while he was serving at Arni, he received a notice with regard to ten charges framed

against him. It is important, for our purpose, to scrutinise the substance of those charges. Charges 1 and 4 to 10 related to irregularities, mostly of a

subsidiary character; charge 4, which appears to be the most serious, related to alleged incorrect entries in and attendance register from 8-1-1959

to 14-1-1959, regarding the permanent E. D. D. A. Charges 2 and 3 were very serious, taken together, and it is not disputed that upon the facts,

which formed the basis of those charges, the Departmental authorities gave a complaint to the police to the effect that the writ petitioner was guilty

of offences under Ss. 409, 467 and 471 I.P.C. The petitioner alleges that he took up the stand that he should be first prosecuted in the Criminal

Court, and that the departmental authorities should abide by the decision of the criminal court. But, actually, the disciplinary enquiry was not held in

abeyance. However, the petitioner was ultimately prosecuted in the sessions Court, Chingleput, under those sections, and acquitted in respect of

those charges by the judgment of the court dated 11-10-1960.

(3) As far as the departmental proceedings are concerned, they went according to routine, and the explanation of the delinquent officer was

obtained and an enquiry held. On 23-1-1960, by order of the Superintendent of Post Offices first respondent) the petitioner was dismissed from

service. Charges 1, 4 and 10 were held not proved; it is pertinent here to note that charge 4 was the most serious of the subsidiary irregularities

alleged. Charges 2, 3 and 5 to 9 were held proved. Under the Central Civil (Classification, Control and Appeal) Rules, the petitioner filed a

statutory appeal, and in April 1960 the director of Postal Services (second respondent) dismissed the appeal. A petition to the Director General of

Posts and Telegraphs, New Delhi, also failed. The petitioner drew the attention of the authorities to the fact that with regard to charges 2 and 3,

which were grave, he had been acquitted by the Sessions Court, of the criminal offences involved, on the very facts. The argument, as submitted

by the learned counsel for the petitioner (Sri Venugopal) might be put in the following form. The findings on charges 2 and 3 are bad, as there have

been acquittals, on the substantial merits, on respect of those charges, by the Court of Session. In the face of those acquittals, a finding to the

contrary by a domestic Tribunal would not be proper, and cannot be permitted to stand. With regard to the remaining established charges, namely,

5 to 9, they are minor misdemeanours altogether, assuming that they were rightly held proved, and that cannot possibly have led any authority to

the inference that dismissal would be the appropriate punishment.

(4) The reasoning upon which the argument proceeds has to be carefully stated. In Jerome D''Silva Vs. The Regional Transport Authority, South

Kanara and Another, a decision of Rajamannar C. J. and Venkatarama Aiyar, J., this reasoning appears in part. The most rigorous liability is the

liability under the criminal law; for that very reason, a criminal trial proceeds upon principles of safeguards to the accused, and the most searching

scrutiny of the facts. Where a man is acquitted upon grave charges arising out of the facts, on the substantial merits, and not merely on some

technical plea, such as lack of sanction, it is not in consonance with principles of natural justice that a domestic forum, exercising disciplinary

jurisdiction, should come to a different conclusion in departmental proceedings, whether before or after the criminal trial. In Jerome D''Silva Vs.

The Regional Transport Authority, South Kanara and Another, the matter was expressed in the following form:

It would indeed be a strange predicament when in respect of the same offence, he should be punished by one Tribunal on the footing that he was

guilty of the offence and that he should be honourably acquitted by another Tribunal of the very same offence. As primarily the Criminal Courts of

the land are entrusted with the enquiry into offences, it is desirable that the findings and orders of the Criminal Courts should be treated as

conclusive in proceedings before quasi judicial tribunals.................

But, it is actually a little difficult to state the exact principle upon which such a proposition can be defended. Authorities are not lacking for the view

that a mere acquittal by a criminal court, does not necessarily absolve the concerned individual from liability, on the same facts, in disciplinary

proceedings. Obviously, the principle can never be stated in any absolute or unqualified form. As I earlier expressed, where the acquittal is on a

technical ground, or the facts are held established which would justify disciplinary action, but the criminal trial ends in an acquittal, because some

necessary ingredient has not been proved beyond reasonable doubt, there might well be a case for contending that the departmental authorities

could nevertheless punish. But, if, for instance a man is acquitted of a grave offence, like criminal misappropriation, on the ground that dishonest

conversion is not at all made out it is certainly anomalous that a departmental authority should be permitted to differ and to hold that there was such

dishonest conversion; and, further, to inflict punishment on that very basis.

(5) I shall now notice the several authorities that have been cited. In Dalmer Singh v. State of Pepsu, AIR 1955 97 , it was held that even where

there had been a regular trial, the judgment of the criminal court was not necessarily conclusive as regards departmental or disciplinary action. The

prosecution might fail for technical reasons. In Karuppa Udayar Vs. State of Madras and Others, Rajagopalan J., pointed out, with regard to a

charge in the criminal Court under S. 420 I.P.C., that the question whether the concerned party could have been prosecuted in a criminal court or

not, did not affect the jurisdiction of the Revenue Divisional officer to enquire into the truth of the charges but, obviously, this decision is peripheral

to the main issue. The problem arises, where, instead of a mere possibility, there is an actual prosecution and acquittal, and the departmental

authority attempts to punish the officer on the very same facts and charges. Mohammad Ghouse Vs. State of Andhra Pradesh by its Chief

Secretary, Secretariat, Hyderabad, is a different matter altogether, for it was contended in that case that the fact that the brother of the petitioner

was discharged on a complaint under S. 162 I.P.C., ought to have been taken into consideration by the Government in acting on the charge against

him. Obviously, the fact that some other person has been discharged in a criminal case, cannot be conclusive in an administrative enquiry. In The

Union of India Vs. Jayaram Damodhar Timiri, Rajamannar C. J., and Basheer Ahmed Sayeed J., observed that when there was an acquittal in a

criminal court, in the absence of any further disciplinary proceedings launched by the Government, the plaintiff, who was under suspension, would

be entitled to continue in the employment, and ought to be re-instated.

(6) We may next examine Md. Israil Vs. Chaudhary Sia Saran Sinha and Another, which concerned the alleged wilful falsifications of accounts by

one in the position of an accused; the evidence adduced on behalf of the Management, which dispensed with the services of the petitioner, included

certified copies of depositions of witnesses examined in the criminal court. Nevertheless, the Bench held that, though the evidence might not be

sufficient for securing conviction in a criminal case, the management had every justification to deny re-employment, in the context of heavy

suspicion relating to the charge. In Radhakanta Patnaik Vs. State of Orissa, a Bench of that court held that the mere fact that the criminal court did

not convict the plaintiff of the charges of criminal breach of trust, cheating and forgery, did not preclude the department form making a further

probe into the matter, as the plaintiff had been acquitted upon the benefit of doubt.

(7) In P. E. Ponnurangam v. General Manager and Competent Authority Mysore Government Road Transport, AIR 1962 Mys 84 Bench of that

court held that normally, if a person holding a civil post was found to have committed an offence under the Penal Code, he should be first

prosecuted in a criminal court. If the criminal court enquires into the charge and acquits the civil servant of the charge, it would be extremely

improper for any disciplinary authority to enquire again into that charge, and to hold him guilty of the very offence. In The Management of the

Radhakrishna Mills Ltd., Coimbatore Vs. The Presiding Officer, Labour Court, Coimbatore and Another, Ramachandra Iyer J., (as he then was)

held that where an employer takes disciplinary action against an employee on the ground that he was a guilty of a criminal offence, it is the duty of

the employer to accept and treat as conclusive the findings and orders of a criminal court trying that offence. In Qamarali v. State of M. P., AIR

1959 And 46 a single judge of that court held that a departmental authority could not be permitted to sit in judgment over a criminal court, and that

where a sub-inspector of police was prosecuted for causing the death of a suspect, and was honourably acquitted, it is not open to the

Departmental Authorities to hold an enquiry into a charge, the subsistence of which was the assumption of guilt in the criminal case. Under those

circumstances, the further proceedings in the departmental enquiry were a nullity. As far as the Supreme Court is concerned, reference might be

made to State of Andhra Pradesh Vs. Sree Rama Rao, . The following passage in the judgment of their Lordships is directly relevant:

The Enquiry Officer appears to have stated that the judgment of the magistrate holding a criminal trial against a public servant could not always be

regarded as binding in a departmental enquiry against that public servant. In so stating the enquiry officer did not commit any error"".

In The Delhi Cloth and General Mills Ltd. Vs. Kushal Bhan, , we have this observation, which may be but incidental to the present context:

It is true that very often employers stay enquiries pending the decision of the criminal trial courts and that is fair; but we cannot say that principles

of natural justice require that an employer must wait for the decision at least of the criminal trial court before taking action against an employee"".

Ridge v. Baldwin, 1962 2 WLR 716, is a decision that contains much matter of interest upon the relationship between a conclusion in the exercise

of a criminal jurisdiction and the cognizance of it by an Administrative authority. The question was whether the Watch Committee who were seized

of a matter of termination of employment, were justified in considering, inter alia, the observations of Donevan J., in certain judgments on two

indictments. Another aspect of this question will be found examined in R. v. Metropolitan Police Commr., (1953) 2 ALL ER 717. In General

Council of Medical Education and Registration of United Kingdom v. Speckman, 1943 AC 627 the question was whether a, Medical Council

could regard the decree in a divorce suit as prima facie evidence of adultery. On the basis of the dicta in these decisions, I think that the following

principles may be said to emerge.

(8) Firstly, an Administrative authority, in initiating disciplinary proceedings, is not bound to wait for the verdict of a criminal court. But where the

criminal court has tried the concerned person and acquitted him it would be improper, and such a proceeding is liable to be quashed as not in

consonance with the principles of natural justice, if the Administrative authority later initiates disciplinary proceedings on the identical facts, and

identical charge and records a contrary conclusion. But, of course, the acquittal should have been substantially on the merits; technical acquittals on

grounds like sanction may not inhibit departmental disciplinary proceedings, or a contrary verdict therein.

Secondly, there could be no rigid or inflexible rule that the finding of a criminal court is conclusive., in every sense, upon Administrative Authorities.

If the finding is purely a technical acquittal is solely based on lack of sanction, or some technical defect in procedure. It could punish, on the same

facts, for some lesser charge, which may not amount to a criminal offence, but may well amount to grave dereliction of duty, entitling disciplinary

action. For instance, a school-master may be acquitted of a charge of rape alleged to have been committed against a girl-student in his care. But

that cannot preclude the departmental authority, upon those very facts, from punishing him for grave impropriety in his relationships with the girl-

students, which disentitles him to that office.

Thirdly, where the acquittal is substantially on merits, on identical facts and charges it will not be proper for a disciplinary Tribunal to record a

finding of guilt, and to punish thereon. This is a basic principle of jurisprudence and I cannot see that it makes any difference that the departmental

authority acts before the criminal proceeding, or after it. The court, in exercise of the jurisdiction under Art. 226 of the Constitution, would be

justified in striking down the action based on such findings as not in consonance with principles of natural justice. Otherwise, grave anomalies might

follow, as stressed by Rajamannar C. J., and Venkatarama Aiyar J., in Jerome D''Silva Vs. The Regional Transport Authority, South Kanara and

Another, .

(9) Applying these criteria to the present case, it is clear that the conclusions on charges 2 and 3 have to be struck down, and that only certain

minor irregularities remain established. Even so, the question is, whether this court could interfere, where the dismissal could be justified on some of

the charges proved. That matter was examined in detail by the Supreme Court in State of Orissa Vs. Bidyabhushan Mohapatra, and the impact of

this decision has been analysed by Jagadisan J., and myself in The State of Madras Vs. A.R. Srinivasan, . As we have pointed out, the findings that

remain should be as to ""substantial misdemeanours"" to justify the argument that this court will not interfere with the punishment imposed in the case

(dismissal), though the officer is cleared in respect of certain charges. Applying this test, in the present case, very minor irregularities alone remain,

with the exception of charge 4, in respect of which the petitioner was acquitted, which are not ""substantial misdemeanours"" in any conceivable

sense, and for which it is impossible to imagine, that any authority, exercising disciplinary jurisdiction, would have imposed the punishment of

dismissal on those charges. In this view, I allow the writ petition, quash the order of dismissal, and release the matter for fresh determination, in the

light of the charges which alone remain established against the writ petitioner, namely, charge 5 to 9. The parties will bear their own costs.

(10) Petition allowed.