The distinct standards of proof in criminal and departmental proceedings and the authority of the Appellate Authority to rectify the punishment of dismissal.

1. This writ petition seeks quashing of award dated 10.12.2006, Annexure P-10, rendered by the Central Government Industrial Tribunal-cum-Labour Court-II, Chandigarh.

2. The petitioner was employed as Clerk-cum-Godown Keeper with the Punjab National Bank. A charge-sheet was issued to him, alleging misconduct of making false entries and thereby committing fraud, to cause loss to the Bank. The Bank lodged FIR, but after trial, the petitioner was acquitted vide judgment dated 8.1.1985, Annexure P-2, for want of adequate evidence. The Bank, thereafter, initiated disciplinary proceedings by appointing a Inquiry Officer on 21.2.1986, who gave his report dated 4.6.1988, Annexure P-3, holding the charges to be proved. After giving further opportunity to the petitioner, to meet the findings in the inquiry report, the order of dismissal from service was passed on 14.7.1988, Annexure P-6. The petitioner preferred an appeal and the Appellate Authority modified the order of punishment from dismissal to termination of service vide order dated 29.9.1988, Annexure P-8. Thereafter, the petitioner raised an industrial dispute, which was referred for adjudication.

3. The Industrial Tribunal held that the inquiry against the workman was fair and the workman was given full opportunity to defend himself and finding of misconduct was justified and the punishment was not disproportionate.

4. Learned counsel for the petitioner submitted that according to the procedure for disciplinary action, applicable to the petitioner, if his services were not to be continued in spite of acquittal, the punishment could only be of termination from service under Rule 19.3. Though the Appellate Authority had modified the punishment to that of termination, once the punishment of dismissal was passed, which was illegal, the said illegality could not be cured in appeal and the punishment being vitiated, was liable to be set-aside. Reliance has been placed on a judgment of the Honble Supreme Court in Tilak Chand Magatram Obhan v. Kamala Prasad Shukla and others, 1995 Supp (1) SCC 21, wherein after referring to an earlier judgment in Rattan Lal Sharma v. Managing Committee, Dr. Hari Ram (Coeducational) Higher Secondary School, (1993) 4 SCC 10 JT (1993) 3 SC 487, it was held that the that Appellate Authority could not cure the initial defect in the constitution of an inquiry.

5. We are unable to accept the submission made. The judgment relied upon was in respect of a situation where the defect went to the root of the matter affecting jurisdiction of the authority taking a decision, which is not the position in the present case. At best, the present was a case of error in the decision which could be rectified by the Appellate Authority. Judgment relied upon is, thus, distinguishable.

6. Reliance has also been placed, by learned counsel for the petitioner, on Captain M. Paul Anthony v. Bharat Gold Mines Ltd. and another, AIR 1999 SC 1416, wherein finding of misconduct recorded by the disciplinary authority on the same evidence, on which, the employee was acquitted, was held to be unjustified.

7. We do not find any merit in this contention also. Reference may be made to judgment of the Honble Supreme Court in Uttaranchal Road Transport Corpn. v. Mansaram Nainwal, AIR 2006 SC 2840, wherein judgment in Captain M. Paul Anthonys case (supra), was also considered. It was observed:-

"10. The position in law relating to acquittal in a criminal case, its effect on departmental proceedings and re- instatement in service has been dealt with by this Court in Union of India and Anr. v. Bihari Lal Sidhana, (1997 (4) SCC 385). It was held in paragraph 5 as follows : "5. It is true that the respondent was acquitted by the criminal court but acquittal does not automatically give him the right to be re-instated 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 s