Ajit Kumar Sinha, J.

1. In the instant writ petition the petitioner prays for issuance of an appropriate writ, order or direction or a writ in the nature of certiorari for quashing the impugned order dated 30.01.2003 by which the petitioner has been again dismissed from service, after the orders passed in C.W.J.C. No. 943/2000 (R) vide order dated 26.8.2002 and L.P.A. No. 555/2002 disposed of on 3.12.2002 in which the management has lost the case. The petitioner further prays for quashing the impugned order dated 18/20.2.2004 passed in memo of appeal by the Appellate Authority. The petitioner further prays for a writ in the nature of mandamus commanding upon the respondents not to give effect of the said impugned order and to pay the consequential benefits and re-instate with full back wages to the petitioner.

2. The facts, in brief, are stated as under: A departmental charge sheet was issued against the petitioner and he was directed to give his written explanation within seven days and he filed a detail show cause on 13.3.1995 and denied the charges levelled against him. Personal Manager Sri R.D. Singh was appointed as Enquiry Officer and Sri A.K. Jha, Inspector, C.B.I. represented as a Presenting Officer and vide order dated 29.10.1999 the petitioner was dismissed from service of respondent No. 4. The petitioner being constrained filed a writ petition C.W.J.C. No. 943 of 2000 (R) against the dismissal order and the learned Single Judge vide its order dated 26.8.2002 set aside the order of dismissal dated 29.10.1999 against which L.P.A. No. 555/2002 was preferred by the respondents and vide order dated 3.12.2002 the learned Division Bench refused to interfere in the matter and reiterated the order passed by the learned Single Judge vide which the matter was remanded to the respondents herein for re-consideration on the basis of the observation made in the order. The petitioner by virtue of order submitted his joining report on 14.12.2002 however he was not allowed to join and vide order dated 30.1.2003 he was again dismissed from service. The petitioner filed a detail memo of appeal against the order passed on 30.1.2003 to the Departmental Appellate Authority as per the liberty granted by the High Court in the second writ petition preferred and the appellate authority vide its impugned order dated 20.2.2004 confirmed the order of dismissal dated 30.1.2003 which is the subject matter of this writ petition.

3. The main contention raised by the learned Counsel for the petitioner is that an F.I.R. was lodged for misappropriating a sum of Rs. 94,000/-causing wrongful loss to B.C.C.L. However only six persons were charge-sheeted and sent up for trial whereas two persons not sent up for trial and discharged by the Court of S.D.J.M. (C.B.I.), Dhanbad which included the petitioner and one Suresh Kumar Chand. The learned Counsel for the petitioner further submits that it is a case of gross discrimination and double standard adopted by the respondent Management in view of the fact that those who were exonerated were proceeded departmentally and disciplinary proceedings were initiated against them whereas those who were charge sheeted and sent up for trial by the C.B.I. no disciplinary proceeding have been initiated. In this regard he also referred to a report of two members Vigilance Committee which was constituted by none other than the Management itself and they also vide their report dated 21.7.1990 exonerated the petitioner. It is also the case of the petitioner that even the second person who was not sent up for trial or charge sheeted continues in the job and was promoted. The learned Counsel for the petitioner further submits that in the instant case the enquiry report was sent to the Project Officer and the G.M. and the G.M. himself approved the Enquiry Report and has also recommended dismissal from service and he being the appellate authority cannot be a judge on his own cause and thus the entire proceeding was vitiated. It is further contended that the appellate order has not even chosen to deal with any of the grounds raised in the memo of appeal. It has further been contended that in any event the issue with regard to ex-parte enquiry report was held to be not proper by the learned Single Judge in the initial round and the direction issued clearly indicated that the petitioner should be given opportunity and the matter was to be considered afresh, meaning thereby all the points raised in the show cause as well as in the memo of appeal were to be dealt with and answered. To support his contention he refers to and relies upon : 2008(225)ELT161(SC) in particular to suggest that in any event if the facts of the case, charges and the evidences are same then exoneration in a criminal proceeding will certainly have a bearing as to whether the disciplinary proceeding could be initiated or not.

4. Per contra, the learned Counsel for the Management has submitted that the petitioner was given full opportunity and the principle of natural justice was complied with and he has chosen not to appear in the initial round and thus the exparte enquiry report was passed and he even wrote a letter dated 15.09.1997 suggesting that he cannot appear on the ground that certain documents were not given. He has further contended that a disciplinary proceeding can certainly continue even after acquittal in a criminal proceeding and to support his contention he has referred to and relied upon : [1997]3SCR364 , : (2005)IIILLJ725SC , : (2006)ILLJ1087SC , : (2007)2LLJ1046SC and (2007) 10 SCC 385. He further submits that even the other co-accused who was exonerated and not sent up for trial, i.e. Satya Prakash Chand was also issued charge memo, however, he has no knowledge about the outcome. However, the learned Counsel for the petitioner submits that except him all the other co-accused in the criminal case who were actually charge sheeted and sent up for trial are continuing in service and have been promoted also which is clearly discriminatory and amounts to adopting double standard as contended by the learned Counsel for the petitioner.

The other contention raised by the learned Counsel for the respondents is that judicial review under Article 226 of the Constitution of India arising out of disciplinary proceedings confirmed by appellate authority as a whole is limited and the same can only be on the ground of violation of settled law or the provisions of the Constitution and or in case of disproportionate punishment.

5. I have considered the rival submissions and the pleadings and the case laws on the subject. In the instant case exoneration is by way of discharge and the petitioner was not even charge sheeted nor sent up for trial and thus it will be deemed that the accused is acquitted honourably and exonerated of the charges and it will not be proper to initiate a departmental enquiry. This issue was specifically considered in : (1981)IILLJ6SC in Corporation of the City of Nagpur v. Ramchandra and at paragraph 6 it was held as under:

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 a 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 (discretion) in any way fettered.

6. The view taken in Capt. M. Paul Anthony in (1993) 3 SCC 679 by the Honble Supreme Court has also to be considered and the case of such nature has to be decided on the facts and the evidence in both the criminal as well as the departmental proceeding. The Honble Supreme Court at paragraphs-34 & 35 held as under:

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 appellants residence and recovery of incriminating articles thereform". The findings recorded by the enquiry 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 enquiry officer and the enquiry 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.

7. On considering all the aforesaid issued the Honble Supreme Court in : (2006)IIILLJ1075SC (G.M. Tank v. State of Gujarat and Others) the Honble Supreme Court while reiterating the view in Capt. M. Paul Anthony (Supra) at paragraph 31 held as under:

31. In our opinion, such facts and evidence in the departmental as well as criminal proceedings were the same without there being any iota of difference, the appellant should succeed. The distinction which is usually proved between the departmental and criminal proceedings on the basis of the approach and burden of proof would not be applicable in the instant case. Though the finding recorded in the domestic enquiry was found to be valid by the courts below, when there was an honourable acquittal of the employee during the pendency of the proceedings challenging the dismissal, the same requires to be taken note of and the decision in Paul Anthony case will apply. We, therefore, hold that the appeal filed by the appellant deserves to be allowed.

8. However, in a recent judgment, rendered in the case of NOIDA Entrepreneurs Association v. NOIDA and Ors., as reported in (2007) 10 SCC 385 , the Honble Supreme Court no doubt held at paragraph Nos. 15 and 16 as under:

15. The position in law relating to acquittal in a criminal case, its effect on departmental proceedings and reinstatement in service has been dealt with by this Court in Union of India v. Bihari Lal Sidhana. It was held in para 5 as follows: (SCC pp. 387-88)

5. It is true that the respondent was acquitted by the criminal court but acquittal does not automatically give him the right to be reinstated into the service. It would still be open to the competent authority to take decision whether the delinquent government servant can be taken into service or disciplinary action should be taken under the Central Civil Services (Classification, Control and Appeal) Rules or under the Temporary Service Rules. Admittedly, the respondent had been working as a temporary government servant before he was kept under suspension. The termination order indicated the factum that he, by then, was under suspension. It is only a way of describing him as being under suspension when the order came to be passed but that does not constitute any stigma. Mere acquittal of government employee does not automatically entitle the government servant to reinstatement. As stated earlier, it would be open to the appropriate competent authority to take a decision whether the enquiry into the conduct is required to be done before directing reinstatement or appropriate action should be taken as per law, if otherwise, available. Since the respondent is only a temporary government servant, the power being available under Rule 5(1) of the Rules, it is always open to the competent authority to invoke the said power and terminate the services of the employee instead of conducting the enquiry or to continue in service a government servant accused of defalcation of public money. Reinstatement would be a charter for him to indulge with impunity in misappropriation of public money.

16. The standard of proof required in departmental proceedings is not the same as required to prove a criminal charge and even if there is an acquittal in the criminal proceedings the same does not bar departmental proceedings. That being so, the order of the State Government deciding not to continue the departmental proceedings is clearly untenable and is quashed. The departmental proceedings shall continue.

9. In : (2007)2LLJ1046SC (Pandiyan Roadways Corpn. Ltd. v. N. Balakrishnan) the Honble Supreme Court while analyzing the two lines of decision at paragraph 21 held as under:

21. There are evidently two lines of decisions of this Court operating in the field. One being the cases which would come within the purview of Capt. M. Paul Anthony v. Bharat Gold Mines Ltd. and G.M. Tank v. State of Gujarat. However, the second line of decisions show that an honourable acquittal in the criminal case itself may not be held to be determinative in respect of order of punishment meted out to the delinquent officer, inter alia, when; (i) the order of acquittal has not been passed on the same set of facts or same set of evidence; (ii) the effect of difference in the standard of proof in a criminal trial and disciplinary proceeding has not been considered or; where the delinquent officer was charged with something more than the subject-matter of the criminal case and/or covered by a decision of the civil court.

10. As regards the judgment cited by the petitioner in (2008) 1 SCC 650 , the same does not apply to the facts of this case since the matter related to stay of departmental proceedings on the ground that criminal proceedings were going on, however, in the instant case the order of dismissal is under challenge in view of the fact that the petitioner was not even charge-sheeted and or sent for trial and thus has been exonerated.

11. There is no dispute about the consistent view taken time and again by the Honble Supreme Court in : 2008(225)ELT161(SC) (Union of India v. Naman Singh Shekhawat) : AIR2006SC1800 , : (2006)ILLJ826SC , 2005 (2) SCC 764 etc. 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.

12. However, after considering the aforesaid the Honble Supreme Court in : 2008(225)ELT161(SC) also emphasised the need for compliance of the principles of natural justice preponderance of probability to prove the charges on the basis of materials on record and to consider relevant facts and the charges etc. an finally directed to reinstate the petitioner with all consequential benefits.

13. A Constitution Bench in : (1966)IILLJ164SC (R.P. Kapur v. Union of India) at page 444 observed as under:

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

14. In 2008 (1) SCC 650 the Honble Supreme Court at para 29 has specifically held as under:

Furthermore the discretionary Writ Jurisdiction under Article 226 of the Constitution of India should be exercised keeping in view the conduct of the parties....

In the instant case the conduct of respondent Management is on the face of it unjust, unfair and unreasonable apart from being discriminatory and is thus violative of Article 14 of the Constitution. The following reasons clearly reflects adoption of double standard.

a) Out of 8 named accused 6 were charge-sheeted and sent up for trial. The petitioner along with one more was not even charge-sheeted nor sent up for trial and was discharged by the competent court.

b) A Vigilance Committee of 2 members were constituted by the Management to investigate into the lapses and report. The two members Vigilance Committee also exonerated the petitioner.

c) Those delinquent officers who were charge-sheeted and prosecuted were retained in job and even promoted. Even the other officer who was not charge-sheeted has been allowed to continue in service and was promoted also.

d) Only the petitioner was dismissed from service even though he was not charge-sheeted and even the Vigilance Committee exonerated him for the same allegation.

e) The findings of the disciplinary and appellate authority is based on the deposition of one Sohit Mishra who was chargesheeted but strangely no disciplinary proceeding was initiated against him.

f) Justice should not only be done but should appear to be done has also been flouted in view of the fact that the recommendation for punishment, order of dismissal and the order of appellate authority was passed by the same person i.e. General Manager.

15. Considering the aforesaid special facts and circumstance of the case and also in view of the double standard and discriminatory approach and the fact that only the petitioner was singled out even though he was neither sent up for trial nor charge-sheeted and even the two Member Vigilance Committee report was in his favour and thus this is a fit case where interference is required in view of the unjust, unfair and unreasonable approach of the respondents which is on the face of it illegal, arbitrary apart from being discriminatory and violative of Article 14 of the Constitution of India.

16. This writ petition is accordingly allowed and the impugned order dated 30.01.2003 is hereby quashed with no order as to cost.