M.R.Hariharan Nair,

The petitioner, who was working as Head Clerk in the Assistant Devaswom Accounts Office, Nanthecode, is aggrieved by Ext. P7 order passed by the disciplinary authority, namely, the Devaswom Board, dismissing him from service based on Ext.P2 enquiry report prepared by the Enquiry Commissioner of the Board.

2. It was alleged that in a surprise check made by PW6, (examined by the Enquiry Commissioner) who was the Finance and Accounts Officer on deputation to the Board, it was discovered that a cheque for Rs.15,421/- prepared for presentation in the bank and intended for recoupment in the Devaswom account was missing. It was verified from the bank concerned that the cheque had been encashed by the petitioner and misappropriated. The matter was reported to the Police and in due course, Ext.P8 judgment was passed acquitting the petitioner. In the mean time disciplinary proceedings continued. According to the petitioner, there was no sufficient evidence before the Enquiry Officer to show that the petitioner was the person who took away the cheque or presented and enchashed the same and in such circumstances, the grave punishment of dismissal was absolutely unjustified.

3. Yet another defence made by the learned counsel for the petitioner is that out of the three charges framed against the petitioner, charge No.3 with regard to the unauthorized entry into the office warranting action for misconduct was not proved, and such being the case, the other two charges regarding theft of the cheque and misappropriation using the same also have no footing. It is also pointed out that charge No.1 is defective in so far as the exact date on which the cheque was stolen was not alleged therein and this, in turn, resulted in prejudice to the petitioner as he was not able to adduce clinching evidence to show that on the particular day he was elsewhere and could not have had access to the cheque.

4. With regard to the findings of the Enquiry Officer, it is argued that they cannot have any overriding effect against Ext.P8 and that since the criminal court has found him not guilty, though that was an event subsequent to the passing of Ext.P2 report, there is no justification for the disciplinary action to be continued resulting in the punishment impugned. There was no sufficient evidence, let alone that of any expert to conclude that the signature found at the reverse of the cheque concerned was affixed at the time of encashing the cheque by the petitioner.

5. As far as the gravity of the punishment is concerned the argument is that it is grossly improportionate to the alleged charge and that in the circumstances, this court can intervene and reduce the punishment or remand the matter.

6. I find no substance in any of these contentions. Ministry of Finance v. S.B. Ramesh ((1998) 3 SCC 227) relied on by the learned counsel for the petitioner was a decision by two Judges and based on findings in an ex parte enquiry. There is a causal observation in the decision that the degree of proof required in departmental disciplinary proceedings is more or less of the same standard as required for establishing the guilt of an accused in a criminal case and that suspicion, however strong, cannot be substituted for proof in a departmental disciplinary proceedings. The ratification of the findings of the Tribunal directing reinstatement of the delinquent officer made in that case, according to me was based on the special facts of that case and they cannot be generalized.

7. A Bench of three Judges found in Nelson Motis v. Union of India and another ((1992) 4 S.C.C. 711) that the contention that disciplinary proceedings cannot continue along with a criminal prosecution has no substance whatsoever in so far as the nature and scope of criminal case are very different from those of a departmental disciplinary proceedings and an order of acquittal cannot conclude or terminate the departmental proceedings.

8. Another similar Bench of the Apex Court