Pratap Kumar Ray, J. - (1.) Heard the learned Advocates appearing for the parties.
(2.) Assailing the order dated 19th November, 2010 passed in O.A. No. 1096 of 2006 which was heard along with application for vacating interim order being M.A. No. 461 of 2007, this writ application has been filed.
(3.) The impugned order reads such:- "19.11.2010- M.A. 461 of 2007 is for vacating the interim order granted on 3.1.2007 restraining the respondents from proceeding against the applicant in the disciplinary proceedings. The respondents have in terms of Master Circular to the RSDA Rules, 1968 (Annexure-M/2) prayed that the interim order should be vacated since disciplinary proceedings and the criminal case can proceed together. M.A. is being taken up for disposal simultaneous with the O.A. 2. The applicant is working as a Senior Cashier in the office of District Cashier, Eastern Railway. He joined the Railways in 1974. In 1991 he was accused of mis-appropriating a sum of Rs. 2.37 lakhs. On 15.2.1991 a complaint was made by the Chief Cashier, Eastern Railway to the CBI. The applicant was accused of embezzlement during the period 1988-91. Following this a CBI case was registered against the applicant. The case went up before the Judge, Special CBI and on 29.4.2006 the applicant was acquitted of the charge. No appeal was preferred by the respondents against the order of the judge. 3. The applicant is aggrieved that although he has been acquitted in the criminal proceeding he has been charge sheeted in a disciplinary proceeding on 8.9.2006 by the Divisional Financial Manager. He is also aggrieved that an inquiry notice has been served on him on 20.11.2006 and that his representation dated 21.9.2006 made to the Divisional Financial Manager on the ground that the proceeding should be withdrawn as the material of the criminal proceeding and the disciplinary proceeding were the same and a few of the documents witnesses were also the same in both matters. 4. The applicant has also stated that on 25.1.1991 his suspension has been revoked but he has not been paid his arrear salary. 5. Heard ld. counsel for the applicant and the respondents. The short matter to be considered here is whether disciplinary proceeding can be taken up where criminal proceeding have already been initiated against a person which he has been acquitted. 6. Counsel for the applicant referred in this connection to the case decided by the Apex Court in G.M. Tank v. State of Gujarat and Anr,. 2006 (2) SCSLJ 481 . In the G.M. Tank case the Court had held that disciplinary proceeding would not lie where a person had been acquitted in a criminal case on the same charge and, therefore, the same ratio would operate in this case. Counsel for the respondents argued that however, that disciplinary proceedings an criminal proceeding were entirely different and in terms of the RSDA Rules, 1968 Master Circular at M/2 (M.A. 461/2007) there was no bar to the disciplinary proceeding continuing. 7. We have carefully gone through the pleadings. It is seen that an accused was acquitted on 29.4.2006 in the criminal case because the prosecution was not able to prove its case. The applicant was not exonerated. In the G.M. Tank v. State of Gujarat case the accused had been completely exonerated in the criminal case. There was no case of benefit of doubt. Also the charge and the evidence was the same in the disciplinary proceedings as well as in the criminal case. The Apex Court had, therefore, held that there would be no disciplinary proceeding in the matter. 8. In the present case the ratio of G.M. Tank (supra) would not hold. In the criminal case the accused has not been exonerated and was acquitted because the prosecution was not able to prove its case. Therefore, the ratio of G.M. Tank would not apply. It is also seen that as per RSDA Rules, 1968 Master Circular M/2 referred to in M.A. 461/07 disciplinary proceedings and criminal can proceed together. The trust of a disciplinary proceeding is also quite different from that of a criminal proceeding. In a criminal proceeding it is the duty of the prosecution to prove a criminal charge beyond all reasonable doubt. In a criminal proceeding a breach of law is involved. In a disciplinary proceeding it is a question of violation of discipline and service rules. In a disciplinary proceeding the standard of proof is also quite different from that of criminal proceedings. The prevailing principle is preponderance of probability and not proving a matter beyond all reasonable doubt. 9. It is also seen from that ruling that the Court should be reluctant to interfere at the stage when a charge sheet has been preferred. The Calcutta High Court had held in a case (2009((1) Cal LT 191(86) tht ordinarily no writ would lie against a charge sheet. This was because challenge the would be premature and consequently it does not give rise to any cause of action. The rights of a party are not adversely affected unless the charge sheet has been issued by a person having no jurisdiction to do so. Following the charge sheet an inquiry is held and proceedings may be dropped or it may be held that the charges have been established. Only when a person is punished is there a grievance and the right of a party is adversely affected can adjudication arise. 10. Considering all factors we are of the view that the disciplinary proceeding can be held. We have already referred to above that the ratio of the G.M. Tank case would not apply in the instant matter since the applicant has not completely been exonerated in the criminal case but acquitted on the ground of benefit of doubt. We would direct that the disciplinary proceeding should be concluded within a period of six months. The applicant should co-operate with the inquiry. If the applicant is adversely affected by the disciplinary proceeding he may approach this Tribunal after having exhausted all departmental remedies. M.A. 461/07 is also consequently disposed of and the interim order of 3.1.2007 vacated. 11. With the above directions the O.A. is disposed of. No costs.";