A departmental inquiry cannot be initiated against a civil servant on the basis of the same allegations for which the civil servant was acquitted in a criminal trial, and withholding promotion on the ground of a pending departmental inquiry is unjustified and violative of Articles 16 and 311 of the Constitution.

P. A. CHOUDHARY, J.

( 1 ) THE petitioner is an employee of the South Central Railway working as a permanent Way Inspector Grade II. Promotion from Grade II to Grade I of a permanent Way Inspector is on the basis of his seniority-cum-suitability. The petitioner was sufficiently senior and for purpose of adjudging his suitability, the South Central Railway conducted a written test on 14. 5. 78 and viva vose on 14. 8. 78. The petitioner was successful both in the written test and viva vose examination. Yet, the petitioner was not promoted to Grade I. That was because by then a criminal case No. 39/77 was pending against the petitioner before the special Judge, S. P. E. Cases, Hyderabad. In that C. C. No. 39/77, the petitioner was charged with dishonest misappropriation of railways property worth Rs. 1,44,000 odd entrusted to him by the Railway department. The charge was framed against the petitioner in that case under S. 409 of I. P. C. and also under Ss. 5 (1) and 5 (2) of the Prevention of Corruption Act. The allegation against the petitioner in that case was that he misappropriated railway property entrusted to him by failing to deliver that property to the Assistant Storekeeper, Kazipet and by falsely showing in the leader-book and other account books as having delivered that railway property to the Assistant Storekeeper, Kazipet. There was some letter of the Railway Board on the subject that directed the railway officials to withhold promotion of a railway employee facing criminal trial or inquiry. On the basis of the above letter, the petitioner was not shown in the list of names empanelled for promotion to Grade I although the petitioner, as said above, passed the tests and was otherwise eligible for promotion to the post of Grade I permanent Way Inspector. The trial of the above C. C. No. 39/77 took about two years and ended in the petitioners acquittal. The Criminal Court by its judgment dated 31. 12. 79 acquitted the petitioner. The Criminal Court in its judgment noted that the prosecution had failed to produce the ledger books, the site register and other account books which were material evidence and which were seized by the prosecution and which were in the possession of the prosecution. The Criminal Court had drawn an adverse inference against this act of suppression of material evidence by the prosecution. One of the questions which was considered in the criminal trial was the question of production of vouchers. The case of the prosecution on this aspect was that the failure of the petitioner to produce the vouchers showing the delivery of the railway property to the Assistant Storekeeper at Kazipet would support the main charge of misappropriation levelled against the petitioner. The Criminal Court noted the defence of the petitioner accused on this aspect in the following words :"the accused categorically stated that all those accepted vouchers were sent to the D. E. N. Construction for adjustment of accounts and in the absence of the vouchers, the only available document is the site register maintained by the accused. So, admittedly, the investigating officer do not choose to verify the accepted vouchers in the office of the D. E. N. Construction, Secunderabad and the site register maintained by the accused is wantonly suppressed by the prosecution. That is why the accepted vouchers could not be traced either in the office of the accused or in the office of the A. S. K. Doubling or the D. E. N. Doubling, Kazipet. The accused also stated that he could not produce the documents, like accepted vouchers, M. A. S. Ledgers etc. , when P. Ws. 1 and 2 visited his office, as the records were already seized by the C. B. I. Inspector by that time. So, the non-production of the accepted vouchers by the accused cannot be taken advantage of by the prosecution to raise an adverse presumption against him. "the judgment of the Criminal Court concluded by observing,"the suppression of the site register maintained by the accused, t

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