- (1.) Heard the learned counsel for the parties and perused the documents on record. The brief facts of the case are that, the petitioner was appointed, on 28.1.1989 and at the relevant time the petitioner was working as Mazdoor, C-II. In the incident dated 6.9.2000 a First Information Report was lodged by the Security Guard of the Central Coalfields Limited and a F.I.R. being, Gomia P.S. Case No. 91 of 2000 under Section 395 of the Indian Penal Code was registered against unknown. On 19.1.2001 the petitioner was suspended and a charge-memo was served upon him. An amended charge-memo was served upon the petitioner on 24.2.2001. An enquiry was conducted into the matter and the enquiry report dated 7.8.2001 was Submitted. A second show-cause notice was issued to the petitioner on 19.10.2001. By final order dated, 5.4.2002 the petitioner was dismissed from service. The appeal preferred by the petitioner has been dismissed by order dated 11.9.2002. In the criminal case though, the petitioner was charge-sheeted and put on trial he was acquitted of the criminal charge by order dated 20.12.2005 and therefore, the petitioner approached the respondent-authority on 17.2.2006 for revoking the order of dismissal from service. Since, the representation of they petitioner was not decided by the respondent-authority, the petitioner moved this Court in W.P. (S) No. 4108 of 2006 which was disposed 6f by order dated 5.2.2008 directing the appellate authority to pass an order, on the representation of the petitioners By order dated 9.9.2008, the appellate authority has affirmed the order dated 11.9.2002 whereby, the appeal preferred by the petitioner was rejected.
(2.) A counter-affidavit has been filed taking a plea that, since proceeding in the criminal case arid departmental enquiry are different, acquittal in criminal case cannot be a ground to interfere with the punishment imposed in the departmental, proceeding. The relevant portion of the counter-affidavit is extracted below:-- 12. That it is stated that the petitioner having committed theft of a Computer from Deshaling Plant of Swang Washery and having been arrested by Police on 13.9.2000 was issued a charge-sheet No. 6935 dated 15/24.2.2001 which was a corrigendum to the earlier charge-sheet No. 6320 dated 19.1.2001. It is stated that the misconduct was alleged under para 26.1 of the acts of misconduct under Certified Standing Order of the respondent No. 1 Company which reads as follows:-- 26.1. theft, fraud or dishonesty in connection with the employer's business or property. It is stated that by the above charge-sheet, petitioner was also placed under suspension with effect from 19.1.2001. .... 15. That it is stated that the enquiry officer submitted report dated 7.8.2001 concluding that the charges levelled against Sri Dilip Bhuiyan/petitioner is reasonably proved. 16. That it is stated that from the enquiry report it would appear that the enquiry officer relying upon the management's case/statement as also the case/statement of defendant and further the documentary evidence produced by the accused worker/petitioner observed that it appears very clear that there was a theft of P.C. from the plan, that the P.C. was recovered from near the house of Sri Baleshwar Ravidas a criminal, subsequently arrested and on the statement of Sri Baleshwar Ravidas, Sri Dilip Bhuiyan was arrested that the accused workman/petitioner confessed in presence of Project Officer, Sr. Personnel Officer and Sub-Inspector of Swang Washery about his involvement and that he was Jailed for a period of about 4 months. .... 19. That it is stated that a copy of the enquiry report was served to the petitioner by a letter dated 19.10.2001 and to which the petitioner submitted his reply dated 24.10.2001. .... 29. That as regard to petitioner's pleading of acquittal in criminal case, it is stated that his acquittal is dated 20.12.2005 whereas the dismissal from service is dated 5.4.2002 i.e. much earlier to acquittal. It is stated that apart from that acquittal in criminal case is not a bar, not to initiate departmental enquiry. It is stated that it is settled. that the yardstick and standard of proof in a criminal case is different from the departmental proceeding, it is stated that the standard of proof in a criminal case is a proof beyond reasonable doubt, whereas the proof in a departmental proceeding is preponderance of probabilities.
(3.) The learned counsel appearing for the petitioner has' submitted that, since the charge against the petitioner is of theft and the petitioner has been acquitted of the said charge in the criminal case, the petitioner is entitled for reinstatement in service from the date of dismissal. The learned counsel has further submitted that during the departmental enquiry only two witnesses were examined by the department and both witnesses are formal witnesses. These two witnesses were examined in the criminal case also and since, in the criminal case, the petitioner has been acquitted of the charges, the penalty of dismissal from service is liable to be recalled. The learned counsel for the petitioner has relied upon judgments of the Hon'ble Supreme Court MANAGEMENT, PANDIYAN ROADWAYS CORPORATION LIMITED v. N BALAKRISHNAN, 2007 9 SCC 755, G M TANK v. STATE OF GUJARAT, 2006 5 SCC 446, M V BIJLANI v. UNION OF INDIA, 2006 5 SCC 88, AJIT KUMAR NAG v. GENERAL MANAGER (P J) INDIAN OIL CORPORATION LTD, 2005 7 SCC 764, UNION OF INDIA v. NAMAN SINGH SEKHAWAT, 2008 4 SCC 1 and STATE OF RAJASTHAN v. B K MEENA, 1996 6 SCC 417.;