# Daya Shankar Mishra v. State Of U.P. & Ors - **Citation:** (2016) 5 ILRA 765 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2016-05-13 - **Bench:** Tarun Agarwala, Prabhat Chandra Tripathi - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/daya-shankar-mishra-v-state-of-u-p-ors-43933 - **Pages:** 5 ## Headnote Acquittal in Criminal Case Has No Impact on Departmental/Disciplinary Proceedings - Order of Punishment Not Affected by Subsequent Acquittal - Writ Petition Dismissed - Petitioner (Head Clerk/Office Superintendent) was reverted to Junior Clerk and awarded censure entry by punishment order dated 21.08.2001 for depositing less amount (Rs.20,655/-) in Government Treasury; petitioner contended that since he was acquitted in Criminal Case No. 1859 of 2005 arising out of same transaction, and the criminal appeal against acquittal was also dismissed by Sessions Court vide order dated 02.06.2011, the punishment 766 INDIAN LAW REPORTS ALLAHABAD SERIES order and the appellate order are liable to be quashed; Held, departmental enquiry and criminal case proceed on different procedures; criminal trial follows procedure of Cr.P.C. and appreciation of evidence based on principles of Evidence Act; departmental proceedings follow principles laid down in Government Servant Conduct Rules; in criminal trial onus of proof strictly lies upon prosecution, whereas in disciplinary proceedings even preponderance of probabilities is sufficient; mere acquittal of an employee by criminal court has no impact on disciplinary proceedings initiated by the Department; order of dismissal or punishment can be passed even if delinquent officer has been acquitted of criminal charge, as held by Supreme Court in Deputy Inspector General of Police and another vs. S. Samuthiram, AIR 2013 SC 14 and State of West Bengal and others vs. Sankar Ghosh, AIR 2014 SC 405; petitioner's own review representation admitted depositing only Rs.20,155/- amounting to admission of temporary embezzlement; fiduciary relationship between employer and employee hinges on trust - once trust wiped out, citadel crumbles; writ petition filed as attempt to circumvent law having already been dismissed earlier in Writ-A No.19652 of 2013; no error found in order of Tribunal; writ petition dismissed. Writ Petition Dismissed Case Law Discussed: ## Text 5 All. Daya Shankar Mishra Vs State Of U.P. & Ors. 765 31. Learned counsel for the petitioner has also placed reliance on the provisions of Sections 81, 82, 83 and 84 contained in part XIV of the Registration Ac to contend that a Registrar would be a 'court' under Section 195 (3) of the 1973 Cr.P.C. Part XIV deals with penalties. Section 81 deals with penalty for incorrectly endorsing, copying, translating or registering document with intent to injure. Section 82 deals with penalty for making false statements, delivering false copies or translations, false personation and abetment. Section 83 stipulates that the Registering Officers may commence prosecution for any offence under the Act coming to the knowledge of a Registering Officer in his official capacity. Section 84 provides that Registering Officer shall be deemed to be a public servant within the meaning of Indian Penal Code. There is nothing in these four sections which may even remotely lead to a conclusion that a Registrar would be 'court' under Section 195 (3) of 1973 Cr.P.C. As observed earlier, the definition of 'court' under sub-section (3) of Section 195 of 1973 Cr.P.C. is an exhaustive definition and does not admit of any enlargement. 32. Thus, as a Registrar would not be a Court within the meaning of sub-section (3) of Section 195 of 1973 Cr.P.C., the application filed by the petitioner under Section 340 of 1973 Cr.P.C. would not be maintainable. 33. The petition, therefore, for all the reasons stated above is liable to be dismissed and is, accordingly, dismissed. ---------- ORIGINAL JURISDICTION CIVIL SIDE DATED: ALLAHABAD 13.05.2016 BEFORE THE HON'BLE TARUN AGARWALA, J. THE HON'BLE PRABHAT CHANDRA TRIPATHI, J. Writ A No.- 22182 Of 2016 Daya Shankar Mishra ...Petitioner Versus State Of U.P. & Ors. ...Respondents Counsel for the Petitioner: Ashok Kumar Tripathi Counsel for the Respondents: C.S.C. Acquittal in Criminal Case Has No Impact on Departmental/Disciplinary Proceedings - Order of Punishment Not Affected by Subsequent Acquittal - Writ Petition Dismissed - Petitioner (Head Clerk/Office Superintendent) was reverted to Junior Clerk and awarded censure entry by punishment order dated 21.08.2001 for depositing less amount (Rs.20,655/-) in Government Treasury; petitioner contended that since he was acquitted in Criminal Case No. 1859 of 2005 arising out of same transaction, and the criminal appeal against acquittal was also dismissed by Sessions Court vide order dated 02.06.2011, the punishment 766 INDIAN LAW REPORTS ALLAHABAD SERIES order and the appellate order are liable to be quashed; Held, departmental enquiry and criminal case proceed on different procedures; criminal trial follows procedure of Cr.P.C. and appreciation of evidence based on principles of Evidence Act; departmental proceedings follow principles laid down in Government Servant Conduct Rules; in criminal trial onus of proof strictly lies upon prosecution, whereas in disciplinary proceedings even preponderance of probabilities is sufficient; mere acquittal of an employee by criminal court has no impact on disciplinary proceedings initiated by the Department; order of dismissal or punishment can be passed even if delinquent officer has been acquitted of criminal charge, as held by Supreme Court in Deputy Inspector General of Police and another vs. S. Samuthiram, AIR 2013 SC 14 and State of West Bengal and others vs. Sankar Ghosh, AIR 2014 SC 405; petitioner's own review representation admitted depositing only Rs.20,155/- amounting to admission of temporary embezzlement; fiduciary relationship between employer and employee hinges on trust - once trust wiped out, citadel crumbles; writ petition filed as attempt to circumvent law having already been dismissed earlier in Writ-A No.19652 of 2013; no error found in order of Tribunal; writ petition dismissed. Writ Petition Dismissed Case Law Discussed: 1. Deputy Inspector General of Police and another vs. S. Samuthiram, AIR 2013 SC 14 2. State of West Bengal and others vs. Sankar Ghosh, AIR 2014 Supreme Court 405 (Delivered by Hon'ble Prabhat Chandra Tripathi, J.) 1. The petitioner Daya Shanker Mishra has preferred this writ petition to issue a writ, order or direction in the nature of certiorari to quash/set aside the judgment/order dated 08.03.2016 passed by the respondent no.2, the State Public Services Tribunal and also to issue a writ, order or direction in the nature of certiorari to quash/set aside the punishment order dated 21.08.2001 along with the orders dated 07.02.2002 and 30.12.2013 passed on the appeal and the review representation. 2. The facts of this writ petition in narrow compass are enumerated as follows: (A). The petitioner was appointed as Lower Division Clerk on 10.05.1979 and thereafter lastly, promoted to the post of the Head Clerk/Office Superintendent in the office of the A.R.T.O. (Admn.), District Chandauli. After attaining the age of superannuation, the petitioner retired on 31.05.2012. The petitioner while being posted as Senior Clerk in the office of the A.R.T.O. (Admn.), District Chandauli was placed under suspension by order dated 14.05.1999 passed by the respondent no.4 due to alleged financial irregularities of depositing less amount to the tune of Rs.20,655/- only (Rupees Twenty Thousand Six Hundred Fifty Five only) in the Government Treasury. Mr. V.K. Ojha, R.T.O., District Varanasi, the Enquiry Officer served a charge-sheet upon the petitioner on 12.04.2000. The petitioner filed a detailed written reply to this, wherein he denied the charges levelled against him. Several short comings were mentioned by the petitioner in his aforementioned reply. After the submission of the written reply to the show cause notice, the respondent no.4 awarded the punishment of "reversion and 5 All. Daya Shankar Mishra Vs State Of U.P. & Ors. 767 censure entry" to the petitioner by the impugned punishment order dated 21.08.2001. Since the petitioner was acquitted by the competent court of the law, therefore, the petitioner ought to have been restored on his original post of Senior Clerk with all the consequential service benefits. The respondent filed an Appeal No. 01/2011 against the judgment and order of the court of the Chief Judicial Magistrate, District Chandauli. The said appeal was dismissed by the court of the learned Sessions Judge, District Chandauli vide order dated 02.06.2011. (B). The petitioner after his retirement preferred a review representation to the respondent no.3 on 07.10.2013 for quashing the impugned punishment order and also filed Civil Misc. Writ Petition No.19652 of 2013 (Daya Shankar Mishra v. State of U.P. & 3 others) before this Hon'ble Court regarding to issue a writ, order or direction in the nature of mandamus commanding the respondent no.3 to decide the review representation dated 22.02.2013 which was dismissed on 11.04.2013. 3. Heard the learned counsel for both the parties and carefully studied the file. 4. The main argument of the counsel for the petitioner is that; since the petitioner has been acquitted in the Criminal Case No.1859 of 2005 (State v. Daya Shankar Mishra) arising out of Case Crime No.22 of 1999, under Sections 409, 467, 468 and 420 I.P.C., Police Station Chandauli, District Chandauli by the court of the Chief Judicial Magistrate, District Chandauli vide its judgment and order dated 06.09.2005 and more so, it's Criminal Appeal No.01/2011 has been dismissed by the court of the learned Sessions Judge, District Chanduli by it's order dated 02.06.2011, the impugned order dated 21.08.2001, reverting the petitioner to the post of the Junior Clerk in the pay scale of Rs.3050-75-4590 and awarding censure entry and the appellate order dated 06.02.2002 are liable to be quashed. 5. The departmental enquiry and the criminal case proceed on different procedure(s). A criminal trial held by the court of the law follows the procedure enunciated in the Criminal Procedure Code and appreciation of the evidence is based on the principles of the Evidence Act. 6. Whereas, the departmental proceedings are totally different. They follow the principles laid down in the Government Servant Conduct Rules. The provisions of the Government Servant Conduct Rules play the pivotal role in conducting the departmental enquiry. 7. In the criminal trial to establish the guilt; onus of proof strictly lies upon the prosecution, whereas in a disciplinary proceedings this element is totally absent, even preponderance of probabilities is sufficient. 8. The Supreme Court in the case of Deputy Inspector General of Police and another v. S. Samuthiram, AIR 2013 Supreme Court 14 has observed as under: 768 INDIAN LAW REPORTS ALLAHABAD SERIES "17. This Court, in Southern Railway Officers' Association v. Union of India (2009) 9 SCC 24: (AIR 2010 SC 1241: 2010 AIR SCW 548), held that acquittal in a criminal case by itself cannot be a ground for interfering with an order of punishment imposed by the Disciplinary Authority. The Court reiterated that order of dismissal can be passed even if the delinquent officer had been acquitted of the criminal charge. 20. We are of the view that the mere acquittal of an employee by a criminal court has no impact on the disciplinary proceedings initiated by the Department." 9. The Supreme Court in the case of State of West Bengal and others v. Sankar Ghosh, AIR 2014 Supreme Court 405 has observed as under: "18. Above rule indicates that even if there is identity of charges levelled against the respondent before the Criminal Court as well as before the Enquiry Officer, an order of discharge or acquittal of a police officer by a Criminal Court shall not be a bar to the award of the departmental punishment." 10. Since the petitioner was punished in the year 2001 and his appeal was also dismissed on 07.02.2002 but the petitioner did not stir his grievances. Simply by moving a review petition in the garb of filing a fresh case to quash the order will be of no avail. 11. The petitioner in his review representation dated 07.10.2013 to the Transport Commissioner, Uttar Pradesh, Lucknow has admitted that he has deposited Rs.20,155/- only (Rupees Twenty Thousand One hundred Fifty Five only) in the Government Treasury, which amounts an admission of temporary embezzlement committed by the petitioner. 12. Fiduciary relationship between the employer and the employee mainly hinges upon the element of trust and reliance. 13. Once this element is wiped-out, the citadel of the trust crumbles down. 14. Moreover, Writ-A No.19652 of 2013 (Daya Shankar Mishra v. State of U.P. & 3 others) vide order of this Court dated 11.04.2013 was dismissed. 15. The petitioner in order to circumvent the law has again preferred this writ petition. 16. Having heard the learned counsel for the parties, we do not find any error in the impugned order passed by the Tribunal. 5 All. Hare Krishna Singh Vs State Of U.P. & Ors. 769 17. The writ petition is dismissed. --------- ORIGINAL JURISDICTION CIVIL SIDE DATED: ALLAHABAD 19.5.2016 BEFORE THE HON'BLE PANKAJ MITHAL, J. Writ C No.- 23107 Of 2016 Hare Krishna Singh ...Petitioner Versus State Of U.P. & Ors. ...Respondents Counsel for the Petitioner: Jalaj Kumar Kushwaha Counsel for the Respondents: C.S.C. The petitioner was issued a domicile/residential certificate dated 16.2.2012 certifying that he is resident of village Taiyabpur Kamalpur, district Kasganj. This certificate has been cancelled by the impugned order dated 26.6.2013 passed by the Sub-Divisional Magistrate. The appeal of the petitioner against the said order has been dismissed by the Collector vide order dated 29.2.2016. In view of this the authorities below have rightly held that the petitioner is a permanent resident of city Kasganj and the domicile/residential certificate dated 16.2.2012 was incorrectly issued to him. In fact it was manipulated by the petitioner in order to save his service as Shiksha Mitra. The above finding is a finding of fact and it is not open to be disturbed in exercise of extra ordinary writ jurisdiction of this Court. The writ petition lacks merit and is dismissed. Held: Para- Case Law discussed: (Delivered by Hon'ble Pankaj Mithal, J.) 1. Heard learned counsel for the petitioner and learned Standing Counsel for the respondents. 2. The petitioner was issued a domicile/residential certificate dated 16.2.2012 certifying that he is resident of village Taiyabpur Kamalpur, district Kasganj. This certificate has been cancelled by the impugned order dated 26.6.2013 passed by the Sub-Divisional Magistrate. The