# Union of India and others v. Avanindra Kumar Tiwari and another

- **Citation:** (2011) 2 ILRA 816
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2011-07-08
- **Case number:** Civil Misc. Writ Petition No. 1417 of 2006
- **Bench:** Satya Poot Mehrotra, Pankaj Mithal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/union-of-india-and-others-v-avanindra-kumar-tiwari-and-another-41960
- **Pages:** 7

## Headnote

Constitution
of
India-Article
226Criminal and departmental proceedings
on
same
allegation
initiated-fair
acquittal in criminal case-can not be
basis
to
dropped
the
disciplinary
proceeding-dismissal order set-a-side by
Tribunal on grounds-No second Show
Cause
Notice
as
well
as
without
consideration-in Capt. M. Paul Anthony
2 All] Union of India and others V. Avanindra Kumar Tiwari and another
817
and
G.M.
Tank-committed
manifest
error-accordingly set-a-side.

Held: Para 29 and 30

The tribunal took no care to examine as
to whether the above two charges were
also the subject matter of trial in the
criminal case on the basis of same
evidence.

Thus, the tribunal without appreciating
and considering the legal position as laid
down in Capt. M. Paul Anthony (supra)
and reiterated even in G.M.Tank (Supra)
mechanically held that as respondent
no.1 has been acquitted in the criminal
case,
there
is
no
justification
for
inflicting any punishment upon him in
the
departmental
proceedings.
Accordingly, it ordered for setting aside
of the punishment and reinstatement of
respondent No.1.
Case law discussed:
AIR 1991 SC 471:(1991) 1 SCC 588; JT 1992
(5) SC 511; JT 2006 (4) SC 328; JT 1995 (8)
SC 65; JT 2006 (2) SC 307; (2007) 13 SCC
251; (2008) 12 SCC 522; (2009) 9 SCC 24;
AIR 1999 SC 1416; (2008) 15 SCC 657; AIR
2006 SC 2129

## Text

816 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
order of conviction. The court has a duty
to look at all aspects including the
ramifications of keeping such conviction
in abeyance. It is in the light of the above
legal position that we have to examine the
question as to what should be the position
when a public servant is convicted of an
offence under the PC Act. No doubt when
the appellate Court admits the appeal filed
in challenge of the conviction and
sentence for the offence under the PC Act,
the superior court should normally
suspend the sentence of imprisonment
until disposal of the appeal, because
refusal thereof would render the very
appeal otiose unless such appeal could be
heard soon after the filing of the appeal.
But suspension of conviction of the
offence under the PC Act, dehors the
sentence of imprisonment as a sequel
thereto, is a different matter."

11. In the case of State of Haryana
v. Hasmat [(2004) 6 SCC 175], the Apex
Court observed that Section 389 of the
Code deals with suspension of execution
of sentence pending the appeal and
release of the appellant on bail. There is a
distinction between bail and suspension of
sentence. One of the essential ingredients
of Section 389 is the requirement for the
appellate Court to record reasons in
writing
for
ordering
suspension
of
execution of the sentence or order
appealed. If he is in confinement, the said
court can direct that he be released on bail
or on his own bond. The requirement of
recording reasons in writing clearly
indicates that there has to be careful
consideration of the relevant aspects and
the order directing suspension of sentence
and grant of bail should not be passed as a
matter of routine.

12. Above being propositions, we
find no good ground to suspend/stay the
conviction
of
the
appellant.
The
application is hereby rejected.

13. As the appeal is of 2006,
Registry is directed to prepare the
paperbook within six months, if the same
has not yet been prepared.

14. List the appeal in the first half of
next year.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 08.07.2011

BEFORE
THE HON'BLE SATYA POOT MEHROTRA,J.
THE HON'BLE PANKAJ MITHAL,J.

Civil Misc. Writ Petition No. 1417 of 2006

Union of India and others ...Petitioners
Versus
Avanindra Kumar Tiwari and another

 ...Respondents

Counsel for the Petitioner:
Sri K.C. Sinha (Asst. Solicitor General of
India)
Sri Rakesh Sinha (for Union of India)

Counsel for the Respondents:
Sri B.P. Srivastava,
Sri K.P. Agarwal
Ms. Ghazalala Bano Quadri
C.S.C.

Constitution
of
India-Article
226Criminal and departmental proceedings
on
same
allegation
initiated-fair
acquittal in criminal case-can not be
basis
to
dropped
the
disciplinary
proceeding-dismissal order set-a-side by
Tribunal on grounds-No second Show
Cause
Notice
as
well
as
without
consideration-in Capt. M. Paul Anthony
2 All] Union of India and others V. Avanindra Kumar Tiwari and another
817
and
G.M.
Tank-committed
manifest
error-accordingly set-a-side.

Held: Para 29 and 30

The tribunal took no care to examine as
to whether the above two charges were
also the subject matter of trial in the
criminal case on the basis of same
evidence.

Thus, the tribunal without appreciating
and considering the legal position as laid
down in Capt. M. Paul Anthony (supra)
and reiterated even in G.M.Tank (Supra)
mechanically held that as respondent
no.1 has been acquitted in the criminal
case,
there
is
no
justification
for
inflicting any punishment upon him in
the
departmental
proceedings.
Accordingly, it ordered for setting aside
of the punishment and reinstatement of
respondent No.1.
Case law discussed:
AIR 1991 SC 471:(1991) 1 SCC 588; JT 1992
(5) SC 511; JT 2006 (4) SC 328; JT 1995 (8)
SC 65; JT 2006 (2) SC 307; (2007) 13 SCC
251; (2008) 12 SCC 522; (2009) 9 SCC 24;
AIR 1999 SC 1416; (2008) 15 SCC 657; AIR
2006 SC 2129

(Delivered by Hon'ble S. P. Mehrotra,J.)

1. Union of India through Secretary,
Ministry of Communication, Director of
Postal Services, Kanpur Region, Kanpur
and Senior Superintendent of Post Offices,
Fatehpur have jointly filed this writ
petition against the order of Central
Administrative Tribunal, Allahabad dated
8.8.2005 allowing Original Application
No.1536 of 2001 of respondent No.1 and
directing for his re-instatement in service
after setting aside the order 26.10.1995
dismissing him from service as also the
appellate and revisional orders thereof.

2. Respondent No.1 was working as a
Post Master at Bhurkhan Post Office,
Fatehpur. A disciplinary enquiry was
initiated against him and he was charge
sheeted on 29.12.1994. He submitted his
reply on 1.3.1995 and the enquiry report
was filed on 18.9.1995. The disciplinary
authority issued a show-cause notice dated
22.9.1998 enclosing the enquiry report.
Respondent No.1 denied receiving the
show cause notice. However, an order of
dismissal from service was passed against
him on 26.10.1995. Against the said order
he preferred a departmental appeal which
was dismissed on 3.11.1999 and revision
thereto also came to be dismissed on
8.2.2001.

3. On the same allegations/charges
respondent No.1 was also prosecuted under
Section 419/420/467/468 and 318 IPC in
case crime No.12 of 1995 registered as
Crime Case No.2187 of 1995 State Vs.
Avnindra Kumar. The said trial ended into
his acquittal vide judgment and order dated
12.5.1999. It is said that the said acquittal
became final and conclusive.

4. Aggrieved by his dismissal from
service and the decision of the appellate
and revisional authorities respondent No.1
filed Original Application No.1536 of
2001 before the Central Administrative
Tribunal.

5. The Tribunal by the impugned
order
dated
8.8.2005
allowed
the
application
and
quashed
the
orders
26.10.1995, 3.11.2009 and 8.2.2010 passed
by the disciplinary, appellate and the
revisional authorities, respectively. At the
same time, respondent No.1 was directed
to be reinstated in service within six
months and to be paid entire up to date
arrears and allowances admissible to him
818 INDIAN LAW REPORTS ALLAHABAD SERIES [2011

6. The Tribunal held that the order of
punishment passed against the petitioner
stands vitiated in law for non-supply of the
enquiry report as the show-cause notice
was returned undelivered. It further held
that as the criminal trial had resulted in
honourable acquittal of the petitioner the
order of punishment on the same charges
cannot be sustained.

7. We have heard Sri Rakesh Sinha,
learned counsel for Union of India and Sri
K.P.Agarwal, Senior Counsel assisted by
Ms. Ghazlala Bano Quadri, learned
counsel for respondent No.1.

8. Sri Sinha has submitted that
respondent No.1 deliberately avoided
receiving of show cause notice and, as
such, he cannot say that he was not
accorded proper opportunity to defend
himself for want of supply of the enquiry
report.
Secondly,
the
departmental
proceedings and the criminal trial are
independent to one another and mere
acquittal of respondent No.1 in the
criminal trial would not necessarily affect
the
outcome
of
the
disciplinary
proceedings.

9. In reply, the submission of Sri
Agarwal is that respondent No.1 was not
actually served with the copy of the
enquiry report. Therefore, the order of
punishment is ex-parte and is in violation
of the principles of natural justice. He
further submits that when respondent No.1
had been acquitted in criminal case
involving the same incident, and this fact
was brought to the notice of the appellate
and revisional authorities it ought to have
been considered and due weightage should
have been given to it. He however, accepts
that criminal proceedings and departmental
proceedings can continue simultaneously
but submits that it was incumbent upon the
tribunal to have considered the impact of
the acquittal of respondent No.1 in the
criminal case.

10. In connection with the second
submission both the parties have relied
upon certain authorities.

11. In view of Union of India Vs.
Mohd. Ramzan Khan AIR 1991 SC 471:
(1991) 1 SCC 588 there is no two opinion
that a delinquent employee is entitled to a
copy of the enquiry report.

12. In the instant case, respondent
No.1 had participated in the enquiry and
had filed his reply to the charges on
1.3.1995 whereupon an inquiry report
dated 18.9.1995 was submitted. A show
cause notice dated 22.9.1998 was sent to
the petitioner by registered post along with
the copy of the enquiry report. The said
notice was not actually served upon
respondent No.1. A photocopy of the
envelope of the aforesaid registered post
has been enclosed as Annexure - 4 to the
writ petition. It shows that it could not be
served upon the respondent No.1 on
23.9.1995 and 25.9.1995 as he was
reported to have gone out. However, the
subsequent endorsement records that he
refused to accept the said notice and the
refusal was recorded on 26.9.1995 in the
presence of a witness Ram Shanker.

13. It was not that only one attempt
was made to serve the notice upon
respondent No.1.

14. In view of such refusal the
aforesaid notice shall be deemed to have
been served upon respondent No.1 as per
the provisions of Section 27 of the General
Clauses Act. Accordingly, when the notice
2 All] Union of India and others V. Avanindra Kumar Tiwari and another
819
is deemed to have been served upon
respondent No.1 by refusal, he cannot be
permitted to allege that he was denied
opportunity of hearing by non-supply of
the enquiry report. Respondent No.1
refused to take the notice at his own risk
for which no one, except him can be
blamed. Even the rule audi alteram partem
does not require that the authority is bound
to give an opportunity to be heard even
when the party does not want it and is
prepared to waive it. The principle of
waiver is fully applicable to such a
situation when the party has refused
service of the show cause notice.

15. The Tribunal, as such, manifestly
erred in holding that the order of
punishment stands vitiated for non-supply
of the enquiry report.

16. In respect of the second
submission, a three Judges Bench of the
Supreme Court as far back as in the year
1992 in the case of Nelson Motis Vs.
Union of India and another JT 1992 (5)
SC 511 held that the nature and scope of
criminal case is different from that of
departmental disciplinary proceedings and
order of acquittal in a criminal case would
not bring to an end the departmental
proceedings. In the aforesaid case the
Supreme Court has held as under:

"So far the first point is concerned,
namely
whether
the
disciplinary
proceeding could have been continued in
the face of the acquittal of the appellant in
the criminal case, the plea has no substance
whatsoever and does not merit a detailed
consideration. The nature and scope of a
criminal case are very different from those
of a departmental disciplinary proceeding
and an order of acquittal, therefore, cannot
conclude the departmental proceeding."

17. It leaves no doubt that criminal
proceedings and departmental proceedings
are independent to one another and operate
in different fields. The standard of proof
required in a criminal case is quite
different than the degree of proof required
to
be
established
in
a
department
proceedings. In a criminal trial the charge
has to be proved beyond reasonable doubt
whereas in a department proceedings even
preponderance of the probabilities is
sufficient to indict the employee.

18. It may be noted that as the
standard of proof in a criminal case and in
a departmental enquiry vary, the decision
of a criminal case would not necessarily be
binding upon the departmental proceedings
though it may carry weight. One of the
reasons for it is that the provisions of the
Evidence Act which are applicable to
criminal trials for the purposes of proving
guilt of the accused are not applicable to
departmental proceedings vide JT 2006(4)
SC 328 Commissioner of Police, New
Delhi Vs. Narender Singh.

19. In B.C. Chaturvedi Vs. Union of
India and others JT 1995 (8) SC 65 it has
been laid down that in a departmental
proceeding neither the technical rules of
Evidence Act nor strict proof of fact are
applicable.

20. The decision in the case of
Nelson Motis (supra) was followed by the
Supreme Court in the case of South
Bengal State Transport Corporation Vs.
Swapan Kumar Mitra and others JT
2006(2) SC 307 and it was held that in a
criminal case the charge has to be proved
beyond reasonable doubt while in the
departmental proceedings the standard of
proof
is
mere
preponderance
of
probabilities. Therefore, inspite of acquittal
820 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
in the criminal case an order of dismissal
emanating from departmental proceedings
can very well be passed.

21. The Supreme Court in the case of
General Manager, UCO Bank and
another Vs. M. Venu Ranganath (2007)
13 SCC 251 held that acquittal of an
employee in a criminal trial is no embargo
on his being departmentally proceeded
with as the two operate in different fields.

22. The same principle was reiterated
by the Supreme Court in the State of
Punjab and others Vs. Prem Sarup (2008)
12 SCC 522 and it was observed that that
there is no bar in initiation of disciplinary
proceedings against an employee after he
has been acquitted in a criminal case.

23. In (2009) 9 SCC 24 Southern
Railway Officers Association Vs. Union
of India the Apex Court observed as
under:

"It is now a well-settled principle of
law that the order of dismissal can be
passed even if the delinquent official had
been acquitted of the criminal charge."

24. It is only in exceptional
circumstances where the charges against
an employee in a criminal trial and that in
the departmental enquiry are one and the
same and where evidence in both the
proceedings is common, the acquittal of
the employee in criminal trial may
conclude
even
the
departmental
proceedings. In such circumstances, it
would not be justified to impose an order
of punishment. In the case of Capt. M.
Paul Anthony Vs. Bharat Gold Mines
Ltd. and another AIR 1999 SC 1416 the
employee who was an accused in a
criminal case was exonerated on merits by
a judicial pronouncement. The charges in
the departmental proceedings were same
and were sought to be proved on the basis
of the same set of evidence as was adduced
in the criminal case wherein the accusedemployee was discharged. The Court held
that the acquittal in criminal trial concludes
the departmental proceedings and the order
of dismissal of the employee, if any passed
is liable to be set- aside.

25. The Apex Court in the case of
State Bank of Hyderabad and another Vs.
P. Kata Rao (2008) 15 SCC 657 approving
the principle laid down in the case of Capt.
M. Paul Anthony (supra) reiterated that
acquittal of delinquent employee facing a
criminal charge would not debar the
disciplinary authority from proceeding
with the departmental enquiry or in
initiating a fresh departmental proceeding
and since the dicta of the Court in Capt. M.
Paul Anthony remains unshaken the
applicability thereof would depend upon
the factual situation of each case.

In sum and substance the principles
that emerge from the above authorities are
that:

1. a delinquent employee can be
proceeded with departmentally as well as
with criminal case simultaneously on the
same charges;

2.
acquittal
of
the
delinquent
employee in criminal trial may not debar
the disciplinary authority either to initiate
departmental proceedings against him or to
continue with departmental proceedings
already initiated;

3. acquittal in criminal trial would not
ipso facto result in conclusion of the
departmental proceedings; and
2 All] Union of India and others V. Avanindra Kumar Tiwari and another
821

4. it is only in the factual situation of
each case where the charges and the
evidence in the criminal case as well as in
the departmental proceedings are one and
the same the disciplinary authority may not
be justified in imposing punishment when
the delinquent employee has already been
acquitted in the criminal trial.

26. Sri K.P.Agarwal, Senior Counsel
appearing on behalf of respondent no.1 has
placed reliance upon a decision of the
Supreme Court reported in AIR 2006 SC
2129 G.M.Tank Vs. State of Gujarat and
another. The aforesaid decision lays down
that where departmental proceedings are
based on identical and similar set of facts
and evidence and where same witnesses
were examined in criminal case resulting
in acquittal of the delinquent employee, no
contrary finding can be recorded in
departmental proceedings as the same
would amount to be unfair and oppressive.

27. The principle laid down in the
above case is one and the same as has been
enshrined in the case of Capt. M. Paul
Anthony (supra) that normally where the
accused is acquitted honourably and is
completely exonerated of all the charges in
a criminal trial, it would not be expedient
to continue departmental inquiry on the
same very charges or grounds or evidence.

28. Now reverting to the facts of the
present case so as to apply the principles
carved out from the above decisions, we
find that respondent no.1 was charge
sheeted on two counts in the departmental
proceedings, namely (i) on 15/16.7.1994
instead of showing deposit of Rs.15,000/-
in five years fixed deposit account of Smt.
Phoola Devi wife of Baldeo Prasad
Dwivedi, he manipulated to show the
amount of Rs.1500/- only which amounted
to gross misconduct within the meaning of
Rule 17 of Additional Departmental Agent
(Conduct and Service) Rules, 1964 and
Rule 125 and 129 of Branch Post Office
Rules; and (ii) on 13.1.1994, 22.2.1994
and 14.6.1994 respectively, he failed to
deposit the necessary amount entrusted to
him for being deposited in recurring
deposit accounts No.93, 98 and 96 which
also amounted to misconduct on his part.
In respect of aforesaid charges six
witnesses were named. He was found
guilty on both the counts.

29. The tribunal took no care to
examine as to whether the above two
charges were also the subject matter of trial
in the criminal case on the basis of same
evidence.

30. Thus, the tribunal without
appreciating and considering the legal
position as laid down in Capt. M. Paul
Anthony (supra) and reiterated even in
G.M.Tank (Supra) mechanically held that
as respondent no.1 has been acquitted in
the criminal case, there is no justification
for inflicting any punishment upon him in
the
departmental
proceedings.
Accordingly, it ordered for setting aside of
the punishment and reinstatement of
respondent No.1.

31. In our view, the tribunal
manifestly erred in passing the impugned
order without adverting to the facts and
circumstances of the case, as enumerated
above, and without correctly applying the
legal principles as enunciated above in the
right perspective.

32. Accordingly, the writ petition is
allowed and the judgment and order dated
8.8.2005
passed
by
the
Central
Administrative
Tribunal,
Allahabad
822 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
(Annexure - 11) is quashed with leave to
the tribunal to re-examine the matter in the
light of the observations made above. A
writ of certiorari as well as that of
mandamus are directed to be issued
accordingly.

No order as to costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 22.07.2011

BEFORE
THE HON'BLE PANKAJ MITHAL, J.

Matters Under Article 227 No. - 1539 of
2011

Suresh Pal

 ...Petitioner
Versus
Tek Chand

 ...Respondent

Counsel for the Petitioner:
Sri 0Rajeev Sharma

Counsel for the Respondents:

.......................

Constitution
of
India,
Article
226
readwith-General Rules Civil, 1957-Rule
162-Execution
Proceedings
Pendency
since 2005-delay in disposal amount to
denial of decree-anthesis to justicedirection issued to conclude proceeding
within 3 month and to inform the High
Court also.

Held: Para 13 and 14

The delay in executing the decree
amounts to deny the decree holder the
benefit of the decree which is anthesis to
justice.

In
view
of
above
facts
and
circumstances,
the
writ
petition
is
disposed of finally at this stage with a
direction Civil Judge (Senior Division),
Hapur, Ghaziabad to decide execution
case No. 22 of 2005 Suresh Pal vs. Tek
Chand
as
expeditiously
as
possible
preferably within a period of three
months from the date of production of
certified copy of this order.
Case law discussed:
AIR 1979 S.C. 1360; 1997 AWC (Supplement)
525

(Delivered by Hon'ble Pankaj Mithal,J.)

1. Heard Sri Rajeev Sharma, learned
counsel for the petitioner.

2. An agreement to sell plot No.484
measuring 100 sq. yards situate in
Mohalla-Rajeev Bihar, Hapur, District
Ghaziabad, was executed in favour of the
petitioner on 17.7.91. Petitioner's Suit
No.86 of 92 for specific performance of
the said agreement was decreed on
24.4.96. The said decree is said to have
attained
finality.
Petitioner
moved
application for the execution of the above
decree which has been registered as
execution case No.22 of 2005.

3. The grievance of the petitioner in
the present writ petition is that in the
above
execution
the
parties
are
represented but the execution is not being
decided. He has prayed for direction for
time bound decision of the aforesaid
execution proceedings.

4. The execution was filed as for
back as in the year 2005. The order sheet
reveals that the execution has been
adjourned for one reason or the other. The
petitioner
does
not
appear
to
be
responsible for any delay.

5. The Apex Court in Hussainara
Khatoon and others vs. State of Bihar
AIR 1979 S.C. 1360 held that any