Vipin Sanghi, J.@mdashUnion of India challenges the order dated 21.7.1997 passed in O.A No. 2786/1991 by the Principal Bench of the Central
Administrative Tribunal (for short `the Tribunal''). By the impugned order, the Tribunal quashed the order of penalty passed by the Disciplinary
Authority, on the ground that there was no evidence on the basis of which the respondent could have been departmentally punished with the
penalty of dismissal from service. Liberty was, however, granted to the petitioner to proceed against the respondent in case evidence is available to
prove misconduct of misappropriation alleged against him within three months of his reinstatement.
2. Shri Amrik Chand, the respondent was appointed as L.D.C in 1969 on temporary basis. In 1974 he was posted as Cash Clerk in Delhi Milk
Scheme. On 5.2.1976 he was given a cheque of Rs. 3 lakhs for disbursement of money at four milk collection centres. He got the cheque encased
from the Bank at Mathura and proceeded to disburse the money along with another Cash Clerk, Shri Ajit Kumar Sharma in a vehicle driven by a
driver, Shri Kalam Singh. Disbursement of cash and maintenance of cash book etc. was part of the duties assigned to the respondent. The balance
cash was required to be deposited back. However, the respondent did not return to Mathura till 11.30 p.m. in the night. He and Shri Ajit Kumar
Sharma returned to Mathura only after midnight in the early hours of 6.2.1976. At that point of time they did not inform the Assistant Manager that
the cash was short by Rs. 10,000/-. On the next morning, to justify his delayed return to Mathura on the previous night, the respondent informed
that the petrol of the vehicle had got exhausted. It was then that he informed that the cash was short by Rs. 10,000/-. The respondent claimed that
perhaps Rs. 10,000/- might have been given in excess at one of the four centres. The Manager, other staff and the respondent went from centre to
centre to enquire about the missing cash. But on enquiry it did not reveal that excess cash had been paid at any of the centres.
3. It appears that the driver of the vehicle that was used by the respondent and Shri Ajit Kumar Sharma viz., Shri Kalam Singh did not corroborate
the version of the respondent that the petrol of the vehicle had run out. He disclosed that the respondent along with Shri Ajit Kumar Sharma had
left the vehicle with the cash on the outskirts of Agra and had gone to Agra in a rickshaw and after spending about 3-4 hours they had returned
back at 9.30 p.m. to the vehicle, while he had remained at the vehicle.
4. A preliminary enquiry was held where after the respondent and the other Cash Clerk were placed under suspension on 10.2.1976 in
contemplation of disciplinary proceedings. An FIR was also lodged with Mathura Kotwali on 11.2.1976 and a case was registered u/s 409 IPC.
While the criminal trial was pending, the services of the respondent were terminated on 21.12.1979 under proviso to Sub-rule (1) of Rule 5 of
CCS Temporary Service Rules, 1965. The respondent and the other Cash Clerk were convicted by the Judicial Magistrate First Class, Mathura.
The respondent was awarded a sentence of two years R.I and a fine of Rs. 3,000/-. On appeal before the Additional Sessions Judge, Mathura the
conviction was set aside holding the respondent to be ""not guilty"".
5. Respondent challenged his termination order dated 21.12.1979 and sought reinstatement by filing OA No. 325/86 which was partially allowed
by the Tribunal on 31st August, 1999. Termination order was quashed. He was deemed to have continued under suspension. Amongst various
directions given, it was also directed that it would be open to the Competent Authority, if so advised to continue the applicant on suspension if it is
decided to hold disciplinary proceedings against him based on his conduct which led to his prosecution before the criminal court.
6. Respondent was taken back in service on 18.10.1989 and the petitioner decided to hold further enquiry as permitted by the Tribunal. He was
also deemed to have continued under suspension w.e.f. 21.12.1979. Respondent was issued a charge sheet under Rule 14 of the CCS (CCA
Rules), inter alia, on the charge of misappropriation of Rs. 10,000/-, which acts manifested breach of trust, dishonesty, doubtful integrity on his
part. The enquiry concluded holding the respondent guilty of the charge of misappropriation and the Disciplinary Authority proceeded to remove
the respondent from service. This order of removal was challenged before the Tribunal which has been quashed by the Tribunal by its impugned
order, with a further direction that the respondent would get 50% of arrears of pay.
7. Tribunal in its impugned order firstly notes that no ground was shown or circumstances specified for initiation of departmental proceedings after
the acquittal of the respondent by the Criminal Court. Tribunal further noticed that the Appellate Criminal Court while acquitting the respondent
observed that it was a case of bona fide mistake on the part of the respondent and no evidence was forthcoming to show that the amount had been
subsequently misappropriated or put to personal use by the respondent. The Tribunal also concluded that there was no evidence on the basis of
which the disciplinary authority could have accepted the findings of the Inquiry Officer to punish the respondent and that there was neither any
statement of witnesses, nor any documents to support the removal of the respondent. It was merely a case of inference drawn by the Inquiry
Officer from the fact that there was shortage of Rs. 10,000/-, that the same must have been misappropriated by the respondent.
8. Before us, the petitioner contended that it was open to the petitioner to hold a departmental inquiry after the acquittal of the respondent by the
Criminal Court on the same charge and that there was sufficient justification to start departmental proceedings against the respondent in view of the
facts and circumstances of the this case. It was urged that the standard of proof required in a criminal trial is much higher as compared to the
standard of proof required in departmental proceedings and it is possible, that on the same charge, while a delinquent employee may be
exonerated in a criminal trial, since the criminal charge is required to be proved beyond reasonable doubt, the same delinquent officer may be
departmentally held to be guilty of the charge by applying the principle of preponderance of probabilities. These principles are well entrenched in
our jurisprudence and reference may be made to the judgment of the Hon''ble Supreme Court in Ajit Kumar Nag Vs. General Manager (P.J.),
Indian Oil Corporation Ltd., Haldia and Others, .
9. Learned Counsel also drew our attention to the order passed in OA No.325/96, wherein the Tribunal had specifically granted liberty to the
petitioner by observing ""It will also be open to the competent authority, if so advised, to continue the applicant on suspension if it is decided to
initiate disciplinary proceedings against him based on his conduct which led to his prosecution before the criminal court. The disciplinary
proceedings, if initiated, should be completed within a period of six months from the date of communication of this order. The competent authority
shall take appropriate decision in the above matter within a period of two months from the date of receipt of this order"".
10. Learned Counsel further contended that the inference that there was no misappropriation by the respondent of the amount of Rs. 10,000/-
which admittedly was found short was based on the lack of evidence of its conversion or its utilisation by the respondent. However, the same tests
could not be applied in departmental proceedings. Once it was proved that in fact the money was short for which the charged officer was
responsible (which in this case is the admitted position), and evidence had come on record in the departmental inquiry that there were holes in the
defense set up by the charged employee, (inasmuch as the version of the charged employee that the delay in his return to Mathura on the night
between 5.2.1976 to 6.2.1976, was occasioned due to the petrol of the vehicle running dry was contradicted by the driver of the vehicle Sh.
Kalam Singh, who had stated that the charged employee and the other cash clerk Sh. A.K. Sharma had left the vehicle with the money on the out
skirts of Agra and were away for a few hours before they returned at about 9.30 P.M.), there was sufficient material for the inquiry officer and the
disciplinary authority to infer that the charged employee had misappropriated the amount of Rs. 10,000/- since he had failed to explain the purpose
of his visit to Agra when he was carrying the balance cash with him.
11. Learned Counsel for the petitioner further argued that, in any case, it could not be said that the present was a case of no evidence and that it
was not within the domain of the Tribunal to substitute its own conclusions with that of the Inquiry Officer and the disciplinary authority.
12. Learned Counsel for the petitioner also contended that in any view of the matter, there was absolutely no justification for the Tribunal to order
grant of 50% back wages since the respondent had not worked at all. He had continued to remain under suspension. He contends that payment of
50% arrears for the entire period from the time he was initially suspended on 10.2.1976 would be putting premium on dishonesty since the
respondent would stand rewarded without his actually serving the petitioner.
13. On the other hand, learned Counsel for the respondent supported the Tribunal''s decision that the present was a case of no evidence, and that
it was merely a conjecture and surmise on the part of the authorities to conclude that it was a case of misappropriation even it were to be accepted
that the Respondent had gone to Agra with the money for a few hours, as claimed by the Driver Kalam Singh. To prove the charge of
misappropriation, the petitioner ought to have produced some material, to lead to a reasonable inference that the respondent had converted the
missing cash to his own use.
14. The respondent has also questioned the invocation of Rule 10(4) of the CCS (CCA) Rules by the petitioner while issuing the order dated
15.10.1989 whereby he was deemed to have been placed under suspension w.e.f. 21.12.1979 i.e. retrospectively. He placed reliance upon
Mahender Singh Vs. Union of India (UOI) and Another, . The contention of the respondent is that since his earlier termination was founded upon
Rule 5(1) of the CCS (Temporary Service) Rules, 1965 and it was not by way of a penalty of dismissal or removal after an inquiry, Rule 10(4) of
the CCS (CCA) Rules, 1965 could not be invoked.
15. Respondent''s further contention is that the petitioner had made an insurance claim for the said amount of Rs. 10,000/- and had recovered the
same on the basis that this was a case of bonafide loss and not a case of misappropriation by an employee. The petitioner could not take different
stands i.e., claim it to be a case of misappropriation to departmentally punish the respondent and, at the same time, claim it to be a case of
bonafide loss (and not misappropriation) to make an insurance claim.
16. We do not agree with the Tribunal when it observes that the Petitioner had not shown under what circumstances departmental proceedings
were initiated after the Respondents acquittal by the Criminal Court. Not only liberty had been specifically granted by the Tribunal while disposing
of OA No. 325/96, even independent of that, the petitioner was entitled to take a decision, upon evaluation of the case, whether it was a fit case to
initiate departmental enquiry or not. This is so, because the standard of proof required in the proceedings i.e. Criminal Trial and Departmental
proceedings, as also the purpose of these two proceedings is different.
17. The First Additional Sessions Judge, Mathura, in Criminal Appeal No. 176/1984 Amrik Chand v. State of U.P acquitted the respondent of the
criminal charge u/s 409 I.P.C. on the reasoning that it was the respondent who had reported the shortage of Rs. 10,000/- on the morning of
6.2.1996. If there was dishonest intention of misappropriation of any money, probably he would have escaped with the entire amount of Rs. 3
lacs. On the contrary the respondent had visited four centres and disbursed a large chunk of the money entrusted to him. In relation to the visit of
the respondent to Agra, the Additional Sessions Judge observed as follows:
I may state here that it was on the basis of the fact that the accused-appellant had visited Agra, the Manager, Sri M.S. Tirpathi, had drawn an
inference about the dishonest misappropriation of money on his part. True it is that while the accused-appellant was deputed for disbursing the
cash at the various centers, he had no business to visit Agra. Unfortunately, the prosecution and the investigating officer have not taken proper
steps to investigate into the aspect of the matter as to what for the accused-appellant had gone to Agra. There was nothing on record to suggest as
to where the accused appellant had gone at Agra on 5.2.76, and what he did there. If the prosecution and the investigating agency would have
taken pains (sic) to discover that the accused appellant had squandered away the sum of Rs. 10,000/- in the night of 5.2.76 at Agra, an inference
about the dishonest misappropriation of this amount by the accused appellant could have very well be drawn, but when the prosecution and the
investigating agency have not looked into this aspect at all, it is not possible for this Court to draw presumption about the dishonest
misappropriation of the amount in question on the part of the accused-appellant. By the mere fact that there were some variations in the
Explanation of the accused-appellant and the driver Sri Kalam Singh, PW-8 on this point, an inference about the guilt of the accused-appellant
cannot be drawn.
18. It is true that in the criminal trial against the respondent the burden was cast entirely on the prosecution to establish the purpose and motive of
respondent''s visit to Agra and it was for the prosecution to unearth the entire chain of events which took place once the respondent had left the
staff vehicle and gone in a rickshaw into the city of Agra with the money, till the time he came back after a few hours. Had those facts been
unearthed by the prosecution, it may have been possible to conclude that the respondent was guilty of the criminal offence with which he was
charged u/s 409 of the IPC. It is equally true that in a departmental proceeding neither the standard of proof required to sustain a finding of guilt is
as rigorous as in a criminal trial, nor is the burden of proof entirely cast upon the prosecution. While the initial burden of proof normally would lay
on the prosecution, the same may shift once the prosecution has led its evidence to establish the contradiction in the version of the defense, if the
contradiction is on a material aspect. It would be for the defense to resolve and explain the same. There is no such thing as an absolute burden of
proof, always lying upon the department in a disciplinary enquiry. The burden of proof depends upon the nature of Explanation and the nature of
charges. In a given case the burden may be shifted to the delinquent officer, depending upon his Explanation see Orissa Mining Corporation and
another Vs. Ananda Chandra Prusty, . Undoubtedly, in the present case, the respondent did not lead any evidence to explain the purpose of his
visit to Agra city with the balance cash possessed by him. He did not disclose the purpose of his visit, where he went, the persons he met and
where and how he kept the money before he returned to the staff vehicle after a few hours.
19. But the question arises, whether the failure of the respondent to explain his conduct from the time he left the official vehicle on the outskirts of
Agra, till the time he returned back to the vehicle, can reasonably lead to the inference that he had misappropriated the money? Would such an
inference be a conjecture or surmise and not a reasonable conclusion capable of being drawn by a reasonable man? Can it be said that there is no
evidence to connect the respondent with the alleged misconduct of misappropriation?
20. Before we embark on the exercise of examining whether this is a case of ""no evidence"", as held by the Tribunal, we only wish to note that while
exercising jurisdiction under Article 226 of the Constitution of India, we are entitled to go into the said issue. The scope of our enquiry is laid down
by the Hon''ble Supreme Court in State of Andhra Pradesh Vs. Sree Rama Rao, and Union of India (UOI) Vs. H.C. Goel, .
21. In H.C. Goel (Supra) the Supreme Court observed as follows:
Though we fully appreciate the anxiety of the appellant to root out corruption from public service, we cannot ignore the fact that in carrying out the
said purpose, mere suspicion should not be allowed to take the place of proof even in domestic enquiries. It may be that the technical rules which
govern criminal trials in courts may not necessarily apply to disciplinary proceedings, but nevertheless, the principle that in punishing the guilty
scrupulous care must be taken to see that the innocent are not punished, applies as much to regular criminal trials as to disciplinary enquiries held
under the statutory rules.
22. In Bank of India (supra) the manner in which the question of ""no evidence"" has to be examined is stated thus:
Strict rules of evidence are not applicable to departmental enquiry proceedings. The only requirement of law is that the allegation against the
delinquent officer must be established by such evidence acting upon which a reasonable person acting reasonably and with objectivity may arrive at
a finding upholding the gravemen of the charge against the delinquent officer. Mere conjecture or surmises cannot sustain the finding of guilt even in
departmental enquiry proceedings. The Court exercising the jurisdiction of judicial review would not interfere with the findings of fact arrived at in
the departmental enquiry proceedings excepting in a case of malafides or perversity i.e. where there is no evidence to support a finding or where a
finding is such that no man acting reasonably and with objectivity could have arrived at that finding. The Court cannot embark upon reappreciating
the evidence or weighing the same like an appellate authority. So long as there is some evidence to support the conclusion arrived at by the
departmental authority, the same has to be sustained.
23. The question is, whether from the point of view of a reasonable person, on an overall objective view of the material/evidence brought on
record, it could be said that this was a case of no evidence against the respondent. ""Surmise"" and ""conjecture"" are defined in the chambers 21st
Century Dictionary to mean ""an information based on incomplete evidence"" and ""to conclude something from the information available, specially
when the information is incomplete or insubstantial."" In Santosh Yadav v. Narendra Singh 2002 (1) SCC 167 the words ""guess work, speculation,
surmise or conjecture"" as words have been explained as ""acting on a mere possibility"".
24. In the case on hand, there is absolutely no evidence to link the respondent with a charge of misappropriation. It is only a case of unexplained
loss. Since the evidence is incomplete and lacking about the conversion of the missing amount by the respondent one cannot reasonably conclude
that the respondent had misappropriated the missing amount. It is probable that the respondent might have carelessly overpaid the missing amount
at one of the four centres, or may have otherwise dropped it while on his way back to Mathura. That would be a case of carelessness and
negligence and cannot tantamount to a misconduct. That is not to say that no act of carelessness or negligence can ever amount to a misconduct. In
Union of India (UOI) and Others Vs. J. Ahmed, the Hon''ble Supreme Court held ""a single act of omission or error of judgment would ordinarily
not constitute misconduct though if such error or omission results in serious or atrocious consequences the same may amount to misconduct... Lack
of efficiency or attainment of highest standards in discharge of duty attached to public office would ipso facto constitute misconduct ... failure to
attain the highest standard of efficiency in performance of duty permitting an inference of negligence would not constitute misconduct.
25. In view of the aforesaid, we have no hesitation in concluding that the Tribunal rightly arrived at its decision that the finding of misconduct of
misappropriation against the respondent was based on surmise and conjecture and on incomplete evidence.
26. We find merit in the contention of the respondent that he could not be deemed to have been under suspension from 21.12.1979. The
suspension upon reinstatement could only have been prospective since he had not been dismissed or removed from service after holding an inquiry
under CCS (CCA) Rules, 1965. Rule 10(4) of the CCS (CCA) Rules, 1965 reads as follows:
Where a penalty of dismissal, removal or compulsory retirement from service imposed upon a Government servant is set aside or declared or
rendered void in consequence of or by a decision of a Court of Law and the disciplinary authority, on a consideration of the circumstances of the
case, decides to hold a further inquiry against him on the allegations on which the penalty of dismissal, removal or compulsory retirement was
originally imposed, the Government servant shall be deemed to have been placed under suspension by the Appointing Authority from the date of
the original order of dismissal, removal or compulsory retirement and shall continue to remain under suspension until further orders:
Provided that no such further inquiry shall be ordered unless it is intended to meet a situation where the court has passed an order purely on
technical grounds without going into the merits of the case.
27. The Supreme Court in Mahender Singh (Supra) had dealt with a similar situation and concluded that since the original order of termination was
not passed against the appellant as a measure of punishment and it was ""simplicitor termination"" under Rule 5(1) of the CCS (Temporary Service)
Rules, 1965 which had been set aside by the Tribunal, Rule 10(4) had no application to the case.
28. We find some merit in the submission of the learned Counsel for the petitioner that, in any event, this was not a fit case where the Tribunal
should have directed the grant of 50% arrears of back wages to the respondent upon his being reinstated in service for the entire period. We
cannot lose sight of the fact that admittedly the respondent was responsible for the loss of Rs. 10,000/- from out of the money entrusted to him,
way back in 1976. This was not a small amount in those days. It is not that the respondent was arbitrarily framed or was a victim of any mala fides.
The respondent is, Therefore, equally responsible for the state of affairs in which he finds himself. The respondent would have received the
suspension allowance during the period of his suspension. We may only refer to a recent decisions of the Hon''ble Supreme Court on this aspect
viz. Allahabad Jal Sansthan Vs. Daya Shankar Rai and Another, .
29. On the other hand, it is noticed that the respondent was initially suspended on 10.2.1976 in contemplation of disciplinary proceedings. Soon
thereafter, an FIR was lodged u/s 409 of IPC. The services of the respondent were thereafter terminated in 1979 under Rule 5(1) of CCS
Temporary Service Rules. The respondent was finally acquitted by the Additional Sessions Judge, Mathura on 17.7.1985. In our view, upon
acquittal, the petitioner had no justification to deprive the respondent of his right to resume his duties and to continue his suspension till his removal
from service on 31.8.1990.
30. In the facts of this case, we feel the direction for payment of 50% back wages for the period up to to 17.7.1995 was not justified and to that
extent we set aside the order of the Tribunal. He would be entitled to payment of 50% back wages for the period after 17.7.1995, subject to
adjustment of the subsistence allowance received by him for that period. However, we make it clear that the respondent would be treated to have
been in continuous service for purposes of pay fixation and computation of his retiral benefits.
31. In the light of our discussion above, we partially allow this writ petition to the extent indicated herein above leaving the parties to bear their
respective costs.
