# Mohammad Salim Siddiqui v. State of U.P. and others

- **Citation:** (2011) 1 ILRA 179
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2011-02-25
- **Case number:** Civil Misc. Writ Petition No. 17102 of 2007
- **Bench:** Sudhir Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mohammad-salim-siddiqui-v-state-of-u-p-and-others-41830
- **Pages:** 8

## Headnote

Constitution of India-Art.226- Practice
and
Procedure-Petitioner
for
same
incident-facing Criminal as well as
disciplinary proceeding for negligence
dereliction in duty-grass negligence by
driving heavy vehicle without having
license
dismissal
order
allowed
to
finalized as no revision or appeal filedafter acquittal in criminal proceeding it
can not be reviewed-view taken by
revisional authority held justified.

Held: Para 25

In this case, departmental enquiry was
not only concluded but the statutory
appeal and revision filed by petitioner
also stood rejected. Petitioner did not
challenge the same before any Court of
law and accepted it. It is only when in
criminal proceedings after few years he
was acquitted, then for the first time in
2004
he
approached
revisional
authority to review its order. Petitioner
did
not
point
out
any
error
or
irregularity
in
the
departmental
enquiry held against him. The only
submission is that since he has been
acquitted
in
the
criminal
case,
therefore order of punishment passed
in
departmental
enquiry
after
condoning delay should be set aside
even though there is no legal infirmity
in said proceeding. To my mind, the
departmental inquiry have attained
finality on the basis of independent
proceedings. In my view, on the basis
of acquittal in a criminal case where
the things were different as discussed
above, the authority was not justified
to review of the order of punishment
passed in departmental proceedings.
Revisional Authority has considered
these aspects in the impugned order
and I do not find any legal infirmity in
the approach of revisional authority as
also in its reasoning & conclusion.
Case law discussed:
Capt. M. Paul Anthony Vs. Bharat Gold
Mines Ltd. And another (1999)3 SCC 679;
G.M. Tank vs. State of Gujarat & others JT
2006(11) SC 36; 2006 (5) SCC 446; The
Managing Director State Bank of Hyderabad
and Another vs. P. Kata Rao JT 2008(4) SC
577; Ajit Kumar Nag vs. General Manager
(P.J.) vs. Indian Oil Corporation Ltd. Haldia
& others JT 2005(8) SC 425; JT 2006(1) SC
444;.JT 2003 (5) SC 494; JT 2007 (2) SC
620;1997 (2) SCC 699; JT 1996 (8);JT 1997
(4) SC 541.
180 INDIAN LAW REPORTS ALLAHABAD SERIES [2011

## Text

1 All] Mohammad Salim Siddiqui V. State of U.P. and others
179

7. Moreover provisions of Section
168-A were quite harsh. The Section has
also been deleted. U.P. Act No. 27 of 2004
which deleted section 168-A made the
previous transactions hit by the said
section voidable (in stead of void) and
curable (capable of being validated) on
payment of some nominal fees within a
particular period which has now expired
(Section 11). Accordingly, for these two
reasons the section shall be interpreted (for
the sake of past transactions) liberally, in
favour of vendor and vendee.

8. Writ petition is therefore allowed.
Impugned orders are set aside.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 25.02.2011

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

Civil Misc. Writ Petition No. 17102 of 2007

Mohammad Salim Siddiqui ...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri Ashok Khare
Sri Amit Srivastava
Sri Siddharth Khare

Counsel for the Respondents:
Sri Abhinav Upadhyay
C.S.C.

Constitution of India-Art.226- Practice
and
Procedure-Petitioner
for
same
incident-facing Criminal as well as
disciplinary proceeding for negligence
dereliction in duty-grass negligence by
driving heavy vehicle without having
license
dismissal
order
allowed
to
finalized as no revision or appeal filedafter acquittal in criminal proceeding it
can not be reviewed-view taken by
revisional authority held justified.

Held: Para 25

In this case, departmental enquiry was
not only concluded but the statutory
appeal and revision filed by petitioner
also stood rejected. Petitioner did not
challenge the same before any Court of
law and accepted it. It is only when in
criminal proceedings after few years he
was acquitted, then for the first time in
2004
he
approached
revisional
authority to review its order. Petitioner
did
not
point
out
any
error
or
irregularity
in
the
departmental
enquiry held against him. The only
submission is that since he has been
acquitted
in
the
criminal
case,
therefore order of punishment passed
in
departmental
enquiry
after
condoning delay should be set aside
even though there is no legal infirmity
in said proceeding. To my mind, the
departmental inquiry have attained
finality on the basis of independent
proceedings. In my view, on the basis
of acquittal in a criminal case where
the things were different as discussed
above, the authority was not justified
to review of the order of punishment
passed in departmental proceedings.
Revisional Authority has considered
these aspects in the impugned order
and I do not find any legal infirmity in
the approach of revisional authority as
also in its reasoning & conclusion.
Case law discussed:
Capt. M. Paul Anthony Vs. Bharat Gold
Mines Ltd. And another (1999)3 SCC 679;
G.M. Tank vs. State of Gujarat & others JT
2006(11) SC 36; 2006 (5) SCC 446; The
Managing Director State Bank of Hyderabad
and Another vs. P. Kata Rao JT 2008(4) SC
577; Ajit Kumar Nag vs. General Manager
(P.J.) vs. Indian Oil Corporation Ltd. Haldia
& others JT 2005(8) SC 425; JT 2006(1) SC
444;.JT 2003 (5) SC 494; JT 2007 (2) SC
620;1997 (2) SCC 699; JT 1996 (8);JT 1997
(4) SC 541.
180 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
(Delivered by Hon'ble Sudhir Agarwal, J.)

1. Heard Sri Ashok Khare, learned
counsel for the petitioner and the learned
Standing Counsel for the respondents.

2. This writ petition is directed against
order dated 10.1.2007 (Annexure 20 to the
writ petition) passed by the Inspector
General of Police, PAC, U.P. Lucknow
(respondent no. 2) rejecting the revision of
petitioner which was filed against order
dated 16.1.1999 dismissing appeal of the
petitioner against order of dismissal dated
19.5.1998.

3. Facts giving rise to present dispute
are as under:

4. Petitioner was appointed as
Constable
in
Provincial
Armed
Constabulary (P.A.C.) U.P. in the year 1988
and was posted in 39th Battalion P.A.C.,
Mirzapur. In year 1994 he was posted at 4th
Battalion P.A.C., Allahabad. FIR dated
28.5.1997 was lodged against cleaner of
vehicle No. 70-E-8655 of 4th Battalion
P.A.C. bearing Case Crime No. 315/97
under Sections 279, 337, 338 IPC. Later on
it was converted into Section 279/304-A
IPC alleging that on 28.5.1997 one Himmat
Singh got injured in his chest due to rash
and negligent driving of vehicle. After
investigation, police filed charge sheet
under Sections 279/304-B IPC. Another
report was lodged on 28.5.1997 by driver
Gama Yadav, Constable of aforesaid
vehicle, against the mob under Section 147,
336, 341, 427 IPC alleging that the
aforesaid vehicle was driven by Constable
Saleem and he dashed Himmat Singh who
sustained injuries, and mob assaulted Gama
Yadav and his vehicle and damaged it. The
matter was closed pursuant to Final Report
submitted by police which was accepted by
the Court.

5. Trial No.315/97 proceeded and
ultimately
the
Judicial
Magistrate-,
Allahabad acquitted the petitioner vide
judgment dated 5.8.2002. However, a
departmental enquiry was initiated against
petitioner placing him under suspension on
2.6.1997 on the allegation that at about 8:30
p.m. on 28.5.1997 petitioner, while driving
himself vehicle no. 70-E/8655, dashed a
person near Kanhayeepur and ran away
from the spot leaving vehicle and when
driver reached the spot, public assaulted
him and also damaged the vehicle.

6. A Preliminary enquiry was
conducted by Sri K.N. Dubey, Assistant
Commandant, I 4th Battalion P.A.C. about
the said incident who submitted report on
16.9.1997
recommending
regular
departmental enquiry against petitioner.
Charge Sheet was issued on 14.1.1998
which was replied by petitioner on
3.2.1998. After conclusion of oral enquiry,
report was submitted by enquiry officer on
16.4.1998 holding petitioner guilty and
recommended punishment of dismissal.
Disciplinary authority thereafter passed
order of dismissal on 19.5.1998. Petitioner's
appeal dated 14.6.1998 was rejected by
appellate authority i.e. the Deputy Inspector
General of Police, P.A.C., Kanpur Section,
Kanpur vide order dated 16.1.1999. His
revision was rejected by revisional authority
i.e respondent no. 2 vide order 7.8.1999.

7. After acquittal in criminal case on
5.8.2002, petitioner filed an application
dated
26.10.2002
requesting
for
his
reinstatement in view of acquittal. The
aforesaid application was rejected by
respondent no. 2 on 14.1.2003 whereafter
petitioner filed writ petition no. 15699 of
1 All] Mohammad Salim Siddiqui V. State of U.P. and others
181
2003. This Court vide order dated 8.1.2004
disposed of writ petition with observations
as under:

"The report of the enquiry officer in
the present case has not been brought on
record. The order of the Disciplinary
Authority does not indicate clearly is that
evidence has been relied upon in the
departmental proceedings and, therefore,
it cannot be decided here whether the
evidence in the departmental proceedings
and the criminal trial was common
without there being a variance.

However,
the
decision
of
the
Supreme Court is the law of the land and
has to be followed not only by this court
but also by all administrative authorities.
Therefore, the order dated 27.1.2003
rejecting the review application is set
aside. The respondent No. 2 will examine
the matter again in the light of the
aforesaid Supreme Court decision and in
the light of the facts available on record
within three months of the date on which
certified copy of this order is presented
before the said order.

This petition is disposed of as
above."

8. Since this Court quashed order
dated 27.1.2003 only and the matter was
remanded to respondent no.2 he examined
it again and passed an order dated
10.8.2004 rejecting petitioner's review
application. The petitioner came to this
Court again in writ petition no. 43546 of
2004 seeking for quashing of the order
dated 10.8.2004. This writ petition was
allowed. The order dated 10.8.2004 was
quashed. The Court remanded the case to
Revisional Authority for reconsideration.
The order reads as below:

"Heard learned counsel for the
petitioner and learned Standing Counsel for
the respondents.

The petitioner is impugned the order
passed by the Inspector General dated 10th
of August 2004. This matter had been
admitted by judgment of this Court on 8th of
January 2004, which has been passed on
the basis of the law laid down by the
Hon'ble Apex Court in the case of Capt. M.
Paul Anthony Vs. Bharat Gold MInes Ltd.
and another reported in (1999) 3 SCC 679.

The learned counsel for the petitioner
has argued that the criminal Court passed
an order on 5.8.2002 by which a clear cut
order of acquittal was passed in favour of
the petitioner on the basis of the main
evidence as given by one Gama Yadav who
was the alleged driver of the Truck which
was given out on the date of the accident.

In my opinion it shall be in the interest
of justice if the matter is sent back to the
Inspector General to re-examine this aspect
of the matter, the matter on remand will be
heard and decided by the Inspector General
within a period of 3 months in accordance
with law and after giving the petitioner a
proper
opportunity
of
hearing.
The
impugned order dated 10th of August 2004
is set aside. The matter remand back for reconsideration.

The writ petition is allowed. There will
be no order as to costs."

9. The respondent no. 2 has now
passed impugned orders.

10. Sri Ashok Khare, learned Senior
Advocate assisted by Sri Amit Srivastava
vehemently contended that since criminal
trial
and
departmental
enquiry
are
182 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
proceedings on the identical facts and
material, hence after acquittal of petitioner,
respondents are bound to reinstate him in
service. In this regard he placed reliance on
the decision of Apex Court in Capt. M.
Paul Anthony Vs. Bharat Gold Mines
Ltd. And another (1999)3 SCC 679.

11. It is true that trial against petitioner
as well as the departmental enquiry relate to
the same incident but to arrive at a
conclusion that same are in respect of same
charges, based on identical evidence, and
same set of facts, it would be appropriate to
have a perusal of charge levelled against
petitioner in departmental enquiry and the
charge for which he was tried in Court of
law.

12. The charge tried against petitioner
was under Section 279-A/304-B based on
averment that on 28.5.1997 at 9:00 p.m.
petitioner hit brother-in-law of complainant
Bal Kishan who was purchasing some
goods, by driving the vehicle negligently
resulting in serious injuries to victim who
ultimately died.

13. Section 279 and 304-A IPC under
which he was tried reads as under: -

279. Rash driving or riding on a public
way.- Whoever drives any vehicle, or rides,
on any public way in a manner so rash or
negligent as to endanger human life, or to
be likely to cause hurt or injury to any other
person,
shall
be
punished
with
imprisonment of either description for a
term which may extend to six months, or
with fine which may extend to one thousand
rupees, or with both."

"304-A. Causing death by negligence.-
Whoever causes the death of any person by
doing any rash or negligent act not
amounting to culpable homicide, shall be
punished with imprisonment or either
description for a term which may extend to
two years, or with fine, or with both."

14. Now charge sheet dated 14.1.1998
issued to the petitioner reads as under:

"fnukad 29-5-97 dks lk;adky nyuk;d Jh
jke[ksykou lksudj dh /keZiRuh dk nsgkUr gks x;k
FkkA ml le; Jh lksudj okfguh eq[;ky; esa ugha
FksA e`r 'kjhj dks lqjf{kr j[kus ds fy, cQZ dh
vko';drk Fkh ftldks ykus ds fy. mifujh{kd
ifjogu 'kk[kk dks fufnZ"V fd;k x;k FkkA vki ;g
tkurs gq, fd vkids ikl Hkkjh okgu pykus dk
vuqKk i= ugha gS vkSj u vki mlds fy, vf/kd`r
gh gSaA fQj Hkh vukf/kd`r :i ls okLrfod pkyd
ds tkudkjh ds fxuk vki okgu la[;k ;w0 ih0 & bZ
& 70 & 8655 Vad ysdj fofguh ifjlj ls ckgj
ysdj cQZ ykus ds fy, pys x;s vkSj dU/kbZiqj eksM+
ds ikl ,d ukxfjd ftldk uke fgEer flag iq=
vtesjh fuoklh gjokjk bykgkckn Fkk] dh xkM+h cSd
djrs le; nCkk fn;k vkSj mldh e`R;q gks xbZA
nq?kZVuk gks tkus ds i'pkr vki ?kVukLFky ls
Hkkxdj okfguh ifjlj esa pys vk,A Hkkjh xkM+h
pykus dk vuqKkih u gksrs gq, Hkkjh okgu pykdj
okfguh ifjlj ls ckgj okLrfod pkyd dh
tkudkjh ds cxSj ls tkuk vki }kjk iznf'kZr ?kksj
vuq'kklughurk] dRrZo; ds izfr vis{kk rFkk in ds
fy, vdeZ.;rk dk ifjpk;d gSA vki vku{kh ds
dRrZO;ksa ds fuoZgu esa vlQyrk ds nks"kh gSaA"

15. Now, I come to the evidence
referred to in both the proceedings. In
criminal case witnesses produced were Bal
Kishan, Ram Asrey, Ashok Kumar, Dilip
Kumar, Suhail Ahmad, SI Jai Narain Singh
and G.S. Rathor. In the departmental
enquiry Gama Yadav (Constable Driver);
Kashi Nath Yadav, Devi Prasad Sharma
(Sub-Inspector Transport Office); Manoj
Kumar
(PTI);
Surya
Bali
(Assistant
Commandant); Gyanendra Pratap (Assistant
Commandant) and K.N. Dubey were the
witnesses named.
1 All] Mohammad Salim Siddiqui V. State of U.P. and others
183

16. Neither from the above it is
evident that charge sheet in criminal trial
and disciplinary enquiry was identical nor
the oral evidence produced in both the
matters were identical or same.

17. The departmental enquiry is
basically concerned with gross negligence,
dereliction of duty on the part of petitioner
and gross negligence by driving a heavy
vehicle unauthorisedly without having any
valid licence. The criminal charge was
concerned with negligent driving by
petitioner which resulted in death of
Himmat Singh. It is true that trial court
acquitted petitioner holding that prosecution
failed to prove completely that vehicle was
being
driven
by
the
petitioner.
In
departmental enquiry, the enquiry officer
has found the charge proved and therefore
he was punished. It is well known that in
order to convict a person for an offence
highest degree of proof is required i.e. one
has to prove the charge beyond doubt. If it
is less or even slightly unproved, one may
not be convicted but in the departmental
enquiry degree of proof is much more
different. A person of ordinary prudence
may come to conclusion what has been
arrived at by the disciplinary authority, such
decision of the disciplinary authority shall
not be disturbed merely for the reason that
better view is possible. It is for this reason
the findings recorded by criminal court or
departmental enquiry have not been found
binding on either of the proceedings vice
versa since the procedure, proof and all
other things are totally different in both
these cases.

18. In order to get benefit of acquittal
in criminal case in a departmental inquiry
the
charges,
proceedings,
witnesses,
evidence, etc. must form similar set as has
been noticed in G.M. Tank vs. State of
Gujarat & others JT 2006(11) SC 36;
2006 (5) SCC 446. In para 30, it has been
held:

"30. The judgments relied on by the
learned
counsel
appearing
for
the
respondents are not distinguishable on facts
and on law. In this case, the departmental
proceedings and the criminal case are
based on identical and similar set of facts
and the charge in a Departmental case
against the appellant and the charge before
the Criminal Court are one and the same. It
is true that the nature of charge in the
departmental proceedings and in the
criminal case is grave. The nature of the
case launched against the appellant on the
basis of evidence and material collected
against
him
during
enquiry
and
investigation and as reflected in the charge
sheet, factors mentioned are one and the
same. In other words, charges, evidence,
witnesses and circumstances are one and
the same. In the present case, criminal and
departmental proceedings have already
noticed or granted on the same set of facts
namely, raid conducted at the appellant's
residence, recovery of articles therefrom.
The Investigating Officer, Mr. V.B.Raval
and other departmental witnesses were the
only witnesses examined by the Enquiry
Officer who by relying upon their statement
came to the conclusion that the charges
were established against the appellant. The
same witnesses were examined in the
criminal case and the criminal court on the
examination came to the conclusion that the
prosecution has not proved the guilt alleged
against
the
appellant
beyond
any
reasonable
doubt
and
acquitted
the
appellant by his judicial pronouncement
with the finding that the charge has not
been proved. It is also to be noticed the
judicial pronouncement was made after a
regular trial and on hot contest. Under
184 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
these circumstances, it would be unjust and
unfair and rather oppressive to allow the
findings recorded in the departmental
proceedings to stand."

19. This has been referred and
followed in The Managing Director State
Bank of Hyderabad and Another vs. P.
Kata Rao JT 2008(4) SC 577.

20. In para 12 of the judgment in Ajit
Kumar Nag vs. General Manager (P.J.)
vs. Indian Oil Corporation Ltd. Haldia &
others JT 2005(8) SC 425, the court has
said:

"12. As far as acquittal of the
appellant by a criminal court is concerned,
in our opinion, the said order does not
preclude the Corporation from taking an
action if it is otherwise permissible. In our
judgment, the law is fairly well settled.
Acquittal by a criminal court would not
debar an employer from exercising power
in accordance with Rules and Regulations
in force. The two proceedings - criminal
and departmental are entirely different.
They operate in different fields and have
different objectives. Whereas the object of
criminal trial is to inflict appropriate
punishment on offender, the purpose of
enquiry proceedings is to deal with the
delinquent departmentally and to impose
penalty in accordance with service Rules. In
a criminal trial, incriminating statement
made
by
the
accused
in
certain
circumstances or before certain officers is
totally inadmissible in evidence. Such strict
rules of evidence and procedure would not
apply to departmental proceedings. The
degree of proof which is necessary to order
a conviction is different from the degree of
proof necessary to record the commission of
delinquency.
The
rule
relating
to
appreciation of evidence in the two
proceedings is also not similar. In criminal
law, burden of proof is on the prosecution
and unless the prosecution is able to prove
the guilt of the accused 'beyond reasonable
doubt', he cannot be convicted by a court of
law. In departmental enquiry, on the other
hand, penalty can be imposed on the
delinquent officer on a finding recorded on
the basis of 'preponderance of probability'.
Acquittal of the appellant by a Judicial
Magistrate, therefore, does not ipso facto
absolve him from the liability under the
disciplinary jurisdiction of the Corporation.
We are, therefore, unable to uphold the
contention of the appellant that since he
was acquitted by a criminal court, the
impugned order dismissing him from
service deserves to be quashed and set
aside."

21. These observations have been
followed in Chairman-cum-M.D., T.N.C.S.
Corpn. Ltd. &t others vs. V.K. Meerabai JT
2006(1) SC 444. Besides others, the Court
held that procedure with respect to standard
of proof in criminal case and departmental
enquiry are different in the ultimate result.
Referring to earlier decision, in Lalit Popli
vs. Canara Bank and others JT 2003 (5) SC
494 the Court also said that approach and
objective in criminal proceedings and
disciplinary proceedings are altogether
different. In disciplinary proceedings the
preliminary
question
is
whether
the
employee is guilty of such conduct as
would merit action against him whereas in
criminal proceedings the question is
whether the offences registered against him
are established and if established what
sentence should be imposed upon him. The
standard of proof, the mode of enquiry, and
Rule governing enquiry and trial are
conceptually
different.
In
case
of
departmental enquiry the technical rules of
evidence have no application. The doctrine
1 All] Mohammad Salim Siddiqui V. State of U.P. and others
185
of "proof beyond doubt" has no application.
Preponderance of probabilities and some
material on record is necessary to arrive at
the
conclusion
whether
or
not
the
delinquent has committed misconduct.

22. Same view has been expressed in
NOIDA Entrepreneurs Assn. vs. NOIDA &
others JT 2007 (2) SC 620 (para 12) which
reads as below:

"12. The purpose of departmental
enquiry and of prosecution is two different
and
distinct
aspects.
The
criminal
prosecution is launched for an offence for
violation of a duty the offender owes to the
society, or for breach of which law has
provided that the offender shall make
satisfaction to the public. So crime is an act
of commission in violation of law or of
omission of public duty. The departmental
enquiry is to maintain discipline in the
service and efficiency of public service. It
would, therefore, be expedient that the
disciplinary proceedings are conducted and
completed as expeditiously as possible. It is
not, therefore, desirable to lay down any
guidelines as inflexible rules in which the
departmental proceedings may or may not
be stayed pending trial in criminal case
against the delinquent officer. Each case
requires to be considered in the backdrop of
its own facts and circumstances. There
would be no bar to proceed simultaneously
with departmental enquiry and trial of a
criminal case unless the charge in the
criminal trial is of grave nature involving
complicated questions of fact and law.
Offence generally implies infringement of
public duty, as distinguished from mere
private rights punishable under criminal
law. When trial for criminal offence is
conducted it should be in accordance with
proof of the offence as per the evidence
defined under the provisions of the Indian
Evidence Act 1872 (in short the 'Evidence
Act'). Converse is the case of departmental
enquiry. The enquiry in a departmental
proceedings relates to conduct or breach of
duty of the delinquent officer to punish him
for his misconduct defined under the
relevant statutory rules or law. That the
strict standard of proof or applicability of
the Evidence Act stands excluded is a
settled
legal
position.
Under
these
circumstances, what is required to be seen
is whether the department enquiry would
seriously prejudice the delinquent in his
defence at the trial in a criminal case. It is
always a question of fact to be considered in
each case depending on its own facts and
circumstances."

23. The Court relied on its earlier
decisions in Depot Manager, A.P. State
Road Transport Corporation v. Mohd.
Yousuf Miya and others 1997 (2) SCC
699, State of Rajasthan v. B.K. Meena
and others JT 1996 (8) standing counsel
684 and Union of India and Another v.
Bihari Lal Sidhana JT 1997 (4) SC 541.

24. In all these cases as discussed
above, various other Apex Court decisions
have also been referred. As a matter of
proposition what has been held in case of
Capt. M. Paul Anthony v. Bharat Gold
Mines Ltd cannot be questioned. But the
real issue is that the facts and circumstances
of the case are identical in the manner as
stated therein, meaning thereby, if the
charges in a criminal case and departmental
enquiry are identical, the witnesses are
identical and the case is decided in such a
manner where the same witnesses have
been found making same statement and
disbelieved in the court of law and then the
question of applying it in departmental
inquiry may arise & not all these findings
may be seen by the disciplinary authority
186 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
during the course of enquiry to find out
whether these witnesses can be relied on to
hold
the
delinquent
guilty
in
the
departmental enquiry. But where incident
may be same, but otherwise the texture of
charges & the real allegation is different,
witnesses are different, different procedure
is followed in both the kinds of proceedings,
mere acquittal in criminal case will not
make
an
impact
on
departmental
proceedings particularly when same has
already been concluded and there is no
reason or occasion to review the same.

25. In this case, departmental enquiry
was not only concluded but the statutory
appeal and revision filed by petitioner also
stood rejected. Petitioner did not challenge
the same before any Court of law and
accepted it. It is only when in criminal
proceedings after few years he was
acquitted, then for the first time in 2004 he
approached revisional authority to review
its order. Petitioner did not point out any
error or irregularity in the departmental
enquiry held against him. The only
submission is that since he has been
acquitted in the criminal case, therefore
order of punishment passed in departmental
enquiry after condoning delay should be set
aside even though there is no legal infirmity
in said proceeding. To my mind, the
departmental inquiry have attained finality
on the basis of independent proceedings. In
my view, on the basis of acquittal in a
criminal case where the things were
different as discussed above, the authority
was not justified to review of the order of
punishment
passed
in
departmental
proceedings. Revisional Authority has
considered these aspects in the impugned
order and I do not find any legal infirmity in
the approach of revisional authority as also
in its reasoning & conclusion.

26. The writ petition is devoid of
merit. Dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 18.02.2011

BEFORE
THE HON'BLE FERDINO INACIO REBELLO, C.J.

Misc. (Recall) Application No.20211 of 2010

M/S Passwan Gas Agency Distributor
Bharat Gas

 ...Petitioner
Versus
Union of India and others ...Respondents

Counsel for the Petitioner:
Sri O.P.Srivastava
SriAmar Nath Singh

Counsel for the Respondents:
A.S.G.
Sri M.E. Khan

Arbitration & Reconciliation Act-1996Section-17-appointment of arbitratioRreview application-on ground Hon'ble
Chief Justice rejected application on
consideration-during
pendency
of
application the parties have appointed
the arbitrator-held-wholly misconceivedif application moved for appointment of
arbitrator-it
does
not
mean
the
arbitrator can not be appointed n terms
of
arbitral
agreement-unless
statue
provides-power of review can not be
exercised.

Held: Para 6

Considering the above, as under the
Arbitration and Conciliation Act, 1996,
there is no power of review by the Chief
Justice or his delegate, considering the
question, therefore, exercise of powers
of substantive review would not arise.
Case law discussed:
(2005) 8 SCC 618; AIR 1981 SC 606