Departmental proceedings cannot proceed on charges engaging attention of criminal trial, and findings in departmental enquiry cannot stand if the delinquent is acquitted in the criminal case.

Heard Counsel for the the petitioner and learned standing Counsel who appears for Respondent No. 1. List has been revised but no one has appeared for Respondent Nos. 2 to 6.

2. This writ petition has been filed by the petitioner praying for quashing of the order dated 8-6-1995 passed by the opposite party No. 3. Counter and rejoinder-affidavits have been exchanged between the parties.

3. Petitioners case in the writ petition, is that he was appointed as Assistant Accountant in U. P. Sahkari Gram Vikas Bank Limited. Petitioner, in paragraph 7 of the writ petition, has stated that regulations, namely U. P. Rajya Sahkari Bhoomi Vikas Bank Employees Service Rules, 1976 has been framed and the same was approved by the Board on 22-2-1977. Reference has also been made to Regulation 100 of U. P. Co-operative Society Employees Service Regulations, 1975. Petitioner was suspended on 24-2-1979 and a first information report was lodged against the petitioner on which case Crime No. 49/79 under Section 409 of IPC was registered. During pendency of investigation in criminal case, charge-sheet was also issued on 11-3-1980 alleging 8 charges against the petitioner. Petitioner submitted reply to the charge-sheet. Petitioner has submitted that no disciplinary proceedings could have been taken against him since for same charges the criminal trial was going on. The petitioner has further stated in paragraph 18 of the writ petition that Enquiry Officer did not fix any date for leading the evidence in support of the allegations. The petitioner claims to have submitted an application before the Enquiry Officer for staying the departmental proceedings on account of pendency of criminal case. Petitioner has stated the Enquiry Officer did not accept his request. The petitioner states that a show-cause notice was given to him and ultimately order dated 8th June, 1995 was passed dismissing him from service. The petitioner has further stated that the criminal case resulted in acquittal and by judgment dated 4-2-1994 passed by 8th Addl. Chief Judicial Magistrate, Meerut in Case No. 444 of 1993 the petitioner was honourably acquitted. The Counsel for the petitioner made following two submissions : -

(i) In view of Rule 104 of U. P. Rajya Sahkari Bhoomi Vikas Bank Employees Service Rules, 1976 the departmental proceedings could not have been initiated or proceeded with. Counsel for the petitioner also submitted that Rule 104 cast a prohibition on the respondents to proceed with the departmental enquiry.

(ii) The Enquiry Officer did not fix any date for holding any enquiry nor before the enquiry any proceedings took place for proving the charges against the petitioner.

4. I have considered the submissions of the Counsel for the petitioner. The first submission of the Counsel for the petitioner is regarding Rule 104 which is extracted below : -

"104. Enquiry or action when case is under police investigation or before Court:

Even where a case against an employee of Bank is,

(a) Under police investigation, or

(b) Pending judicial enquiry or trial, the Bank may institute or proceed with departmental enquiry and take disciplinary action against the erring employee.

Provided that in the case covered under (b), the charges on which departmental enquiry is held or disciplinary action is taken are not those which are subjudice. "

In the counter-affidavit, it is not denied that first seven charges which are mentioned in the departmental charge-sheet were same who were involved in the criminal trial. In paragraph 6 of the counter-affidavit it has been stated that FIR confined to only seven irregularities whereas departmental charge-sheet contained 8 charges of misappropriation. Proviso to Rule 104, as extracted above, clearly contemplates that charges on which departmental enquiry is held are not those which are subjudice under police investigation or a criminal trial. On plain reading of Rule 104, it is clear that there is a clear prohibition for the depar