Findings in a departmental enquiry cannot outweigh the judicial finding of the non-occurrence of the incident in a criminal case.

1. Heard counsel for the parties.

2. This appeal is directed against the judgment of learned Single Judge dated 19.3.2007 dismissing the writ petition filed by the appellant against his dismissal from service.

3. The facts relevant for the present purposes are that while the appellant-writ petitioner was serving as Constable in Sheohar district, it was alleged that on 17.6.2002 while a superior officer Randhir Prasad Singh, Incharge Sergeant Major had declined to grant him leave while he had granted leave to many others on the same date, the petitioner-appellant had abused and assaulted the said Sergeant Major while he was returning home near a telephone booth. In respect of the said incident, a departmental enquiry was initiated against the petitioner-appellant and he was also for the same charges subjected to the criminal trial. On the basis of evidence led before the court in the criminal trial which included the statement of complainant Sergeant Major, the criminal court came to a positive finding that no incident as alleged had occurred. However, after considering material consisting of the same witnesses in the departmental enquiry, the disciplinary authority came to the conclusion that the charge against the delinquent officer has been proved and penalty of dismissal was awarded vide order dated 3.2.2003.

4. Appeal against the same was rejected by the appellate authority. After the appeal was dismissed, the petitioner-appellant was acquitted with the finding about non-occurrence of the incident. On the basis of the said acquittal order, the petitioner appellant moved a memorial before the competent authority which has been rejected.

5. This led to filing of the writ petition out of which this appeal arises.

6. The learned Single Judge has dismissed the writ petition holding that since Sergeant Major had been cross-examined in the departmental enquiry and on that premises, the enquiry officer has concluded about the charge having been proved, there is no infirmity in the finding reached by the departmental enquiry contrary to the finding of the criminal court. Apart from that, other technical objections which were urged, did not find favour with the learned Single Judge.

7. The principal question that arises for consideration before us, is that in a case where a delinquent officer is subjected to departmental enquiry as well as criminal charge in respect of the same transaction, the witnesses produced to prove that transaction in departmental enquiry as well as the criminal court are the same, whether the findings in departmental enquiry can be at variance with the findings of the criminal court and the acquittal in the criminal case will affect the ultimate outcome of the departmental enquiry?

8. Having given our careful consideration, we are of the opinion that so far general principle that departmental enquiry and the criminal proceedings are two different proceedings which can go simultaneously and concurrently and different conclusion can be reached in the two proceedings because degree of proof required in both the cases being different, is concerned, the same is well settled. However, a distinction has to be drawn where in the criminal proceedings a positive finding is recorded about non-occurrence of the incident and not merely because of not proving the allegations levelled against the accused. Where there is a finding of the non-occurrence of the incident, this principle cannot be extended and in a departmental enquiry findings cannot be permitted to outweigh the judicial finding of the non-occurrence of the incident.

9. This distinction can be discerned clearly in the case of Capt. M. Paul Anthony V/s. Bharat Gold Mines Ltd. and Another, 1999 3 SCC 679 wherein the apex court laid bare the principle. In this case, the delinquent officer had been subjected to departmental enquiry and punished on the allegation of recovery of gold balls in a raid having taken place at his residence and discovery of incrim