- (1.) IN the instant writ petition the petitioner prays for issuance of an appropriate writ, order or direction or a writ in the nature of certiorari for quashing the impugned order dated 30.01.2003 by which the petitioner has been again dismissed from service, after the orders passed in C.W.J.C. No. 943/2000 (R) vide order dated 26.8.2002 and L.P.A. No.555/2002 disposed of on 3.12.2002 in which the management has lost the case. The petitioner further prays for quashing the impugned order dated 18/20.2.2004 passed in memo of appeal by the Appellate Authority. The petitioner further prays for a writ in the nature of mandamus commanding upon the respondents not to give effect of the said impugned order and to pay the consequential benefits and re -instate with full back wages to the petitioner.
(2.) THE facts, in brief, are stated as under: - A departmental charge sheet was issued against the petitioner and he was directed to give his written explanation within seven days and he filed a detail show cause on 13.3.1995 and denied the charges levelled against him. Personal Manager Sri R.D. Singh was appointed as Enquiry Officer and Sri A.K. Jha, Inspector, C.B.I. represented as a Presenting Officer and vide order dated 29.10.1999 the petitioner was dismissed from service of respondent No.4. The petitioner being constrained filed a writ petition C.W.J.C. No.943 of 2000 (R) against the dismissal order and the learned Single Judge vide its order dated 26.8.2002 set aside the order of dismissal dated 29.10.1999 against which L.P.A. No.555/2002 was preferred by the respondents and vide order dated 3.12.2002 the learned Division Bench refused to interfere in the matter and reiterated the order passed by the learned Single Judge vide which the matter was remanded to the respondents herein for re -consideration on the basis of the observation made in the order. The petitioner by virtue of order submitted his joining report on 14.12.2002 however he was not allowed to join and vide order dated 30.1.2003 he was again dismissed from service. The petitioner filed a detail memo of appeal against the order passed on 30.1.2003 to the Departmental Appellate Authority as per the liberty granted by the High Court in the second writ petition preferred and the appellate authority vide its impugned order dated 20.2.2004 confirmed the order of dismissal dated 30.1.2003 which is the subject matter of this writ petition. The main contention raised by the learned counsel for the petitioner is that an F.I.R. was lodged for misappropriating a sum of Rs.94,000/ - causing wrongful loss to B.C.C.L. However only six persons were charge -sheeted and sent up for trial whereas two persons not sent up for trial and discharged by the Court of S.D.J.M. (C.B.I.), Dhanbad which included the petitioner and one Suresh Kumar Chand. The learned counsel for the petitioner further submits that it is a case of gross discrimination and double standard adopted by the respondent Management in view of the fact that those who were exonerated were proceeded departmentally and disciplinary proceedings were initiated against them whereas those who were charge sheeted and sent up for trial by the C. B.I. no disciplinary proceeding have been initiated. In this regard he also referred to a report of two members Vigilance Committee which was constituted by none other than the Management itself and they also vide their report dated 21.7.1990 exonerated the petitioner. It is also the case of the petitioner that even the second person who was not sent up for trial or charge sheeted continues in the job and was promoted. The learned counsel for the petitioner further submits that in the instant case the enquiry report was sent to the Project Officer and the G.M. and the G.M. himself approved the Enquiry Report and has also recommended dismissal from service and he being the appellate authority cannot be a judge on his own cause and thus the entire proceeding was vitiated. It is further contended that the appellate order has not even chosen to deal with any of the grounds raised in the memo of appeal. It has further been contended that in any event the issue with regard to ex -parte enquiry report was held to be not proper by the learned Single Judge in the initial round and the direction issued clearly indicated that the petitioner should be given opportunity and the matter was to be considered afresh, meaning thereby all the points raised in the show cause as well as in the memo of appeal were to be dealt with and answered. To support his contention he refers to and relies upon (2008) 4 SCC page 1 para 35 in particular to suggest that in any event if the facts of the case, charges and the evidences are same then exoneration in a criminal proceeding will certainly have a bearing as to whether the disciplinary proceeding could be initiated or not.
(3.) PER contra, the learned counsel for the Management has submitted that the petitioner was given full opportunity and the principle of natural justice was complied with and he has chosen not to appear in the initial round and thus the exparte enquiry report was passed and he even wrote a letter dated 15.09.1997 suggesting that he cannot appear on the ground that certain documents were not given. He has further contended that a disciplinary proceeding can certainly continue even after acquittal in a criminal proceeding and to support his contention he has referred to and relied upon (1997) 4 SCC 385, (2005) 7 SCC 338, (2006) 2 SCC 584, (2007) 9 SCC 755 and (2007) 10 SCC 385. He further submits that even the other co -accused who was exonerated and not sent up for trial, i.e. Satya Prakash Chand was also issued charge memo, however, he has no knowledge about the outcome. However, the learned counsel for the petitioner submits that except him all the other co -accused in the criminal case who were actually charge sheeted and sent up for trial are continuing in service and have been promoted also which is clearly discriminatory and amounts to adopting double standard as contended by the learned counsel for the petitioner. The other contention raised by the learned counsel for the respondents is that judicial review under Article 226 of the Constitution of India arising out of disciplinary proceedings confirmed by appellate authority as a whole is limited and the same can only be on the ground of violation of settled law or the provisions of the Constitution and or in case of disproportionate punishment.;