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CASE NO.: Appeal (civil)  140 of 2007

PETITIONER: Union of India and others

RESPONDENT: Naman Singh Sekhawat

DATE OF JUDGMENT: 14/03/2008

BENCH: S.B. SINHA & HARJIT SINGH BEDI

JUDGMENT: J U D G M E N T

CIVIL APPEAL NO. 140 OF 2007

S.B. SINHA, J.

1.      Respondent at all material times was working as a Sub-Inspector  (AICO-II).  He was posted in the Intelligence Bureau.  His principal function  was to identify and collect sources of information from the locality in regard  to anti national activities.   

2.      On or about 5th August, 1983, the respondent accompanied by the  driver of an official jeep bearing Registration No. RSN \026 939, went to a  place known as ’Ramsar Gagaria Road’ in the District of Barmer.   There, he  allegedly found a large number of smuggled goods.  While bringing the  same in his jeep for their delivery to the Customs Authorities it was  intercepted by a Jonga Jeep, which was being driven by one Bhoor Singh, a  known smuggler, accompanied by the Head Constable Bhori Das and  Constable Kirta Ram of the concerned Police Station.  They were brought to  the Police Station and arrested inter alia on the charge that the respondent, in  conspiracy with the smugglers had been taking the smuggled goods in his  official jeep.   

3.      Proceedings under the Customs Act were initiated on the basis of the  First Information Report lodged by the said Head Constable. A Criminal  proceeding was also initiated against him for the alleged commission of  offences under Sections 409, 120-B of the Indian Penal Code read with  Section 13(2) of the Foreigners Act and Section 27 of the Arms Act as also  under Section 110 of the Customs Act.  

4.      In the proceeding under Section 112 of the Customs Act, the defence  of the respondent inter alia was that, finding some smuggled goods stranded  and abandoned while he was on a tour from near Village Gagaria, he loaded  the same in the said Jeep No. RSM-939 for necessary action in relation  thereto by the Customs Authorities.  However, in the meantime, they were  intercepted by the police authorities.   

5.      The driver of the vehicle Mool Singh supported the said contention of  the respondent.  The Additional Collector, Customs and Central Excise,  upon consideration of the materials on record by the parties thereto held :-

"15.    \005..In his statement dated 20.8.2083 recorded  under Section 108 ibid, Shri Mool Singh has  corroborated the facts outlined by Naman Singh in his  statement dated 20.8.1983.  No independent evidence has  been brought on record to show Shri Mool Singh’s  involvement in smuggling activities separately.  Both

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S/Shri Naman Singh and Mool Singh in their statements  recorded under Section 108 have stated that they were  intercepted by the Police Officers who were sitting in a  Jonga Jeep, being driven by one Bhoor Singh, a known  smuggler on the Indo-Pak Border.  However, in the  records of the case, there is no mention about the  particular Jeep in which the Police Offices were traveling  and who was driving the jeep.  This aspect has not been  clarified even in the show cause notice.  In view of this  statement, the Jeep number in which the Police officers  were traveling should have been obtained by the  Investigating Officers particularly when an allegation has  been made against the very officers who had made the  seizure that they were traveling in a Jonga Jeep belonging  to a well known smuggler of the area.

16.     Thus there is no evidence on record to indicate that  the goods under seizure belong to either S/Shri Naman  Singh or Mool Singh or Narain Singh, who were present  in the jeep when the goods were seized.  There is no  evidence also that they had acquired goods through  unauthorized route.  Further, there is no evidence against  Shri Latif S/o. Bheru Musalman that he was in anyway  concerned with the goods under seizure.  Thus, the theory  given by the Police that the I.B. Officers and Narain  Singh (a private person) were indulging in smuggling of  goods in a Govt. Jeep  does not hold any water,  particularly when in their statements S/Shri Naman Singh  and Mool Singh have clearly indicated that the Police  Officers were traveling in Jonga Jeep belonging to Bhoor  Singh, a well known smuggler of the area and  Investigations have not been made either by the Police or  the Customs authorities either to deny or to confirm this  serious allegation.  In the circumstances, on the contrary  there is no reason to disbelieve that the I.B. Officers on  tour found certain goods of foreign origin which they  loaded in their vehicle to be taken to the nearest Customs  Offices for necessary action and they were intercepted by  the Police Officers, who were sitting in a private Jonga  Jeep being driven by a notorious smugger of the area, a  fact which has not been denied or disputed.  I, therefore,  hold that the ownership of the goods under seizure cannot  be attributed to S/Shri Naman Singh, Mool Singh, Narain  Singh and Latif to whom the show cause notice has been  issued.  There is no evidence on record to indicate their  involvement in the smuggling of foreign origin goods  from Pakistan into India."

       On the basis of the aforesaid findings, whereas the goods of the  foreign origin were directed to be confiscated, the charges against the  respondent, Mool Singh and one Latif were dropped.  

6.      In the criminal proceeding against the respondent, the prosecution  examined a large number of witnesses including the informant Bhori Das,  PW-6 and Constable Kirta Ram, PW-7.   The charges were found to have  not been proved.  It was inter alia held that no case under Section 409 of the  Indian Penal Code had been made out as the respondent was not entrusted  with the said goods.  In regard to the charge under Section 27 of the Arms  Act, no offence was found to have been committed by the respondent, as he  was in possession of an Arm to which he was entitled to.  So far as the  charge under Section 120-B of the Indian Penal Code is concerned, a  judgment of acquittal was recorded stating :-

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"As elaborated earlier, when the basis of presenting  prosecution has not been considered reliable by  Department of Custom and the statement of the accused  is considered to be more reliable, under such  circumstances it cannot be considered the accused has  misappropriated in this matter as visit by the employees  of Intelligence Bureau on the border for discharging their  duties does not tantamount to misuse of the post or the  property and no such evidence has been presented that  the accused Naman Singh did not have the authority to  go on border side for official work and even the  department had not forbidden him from going that place.   Due to want of above facts it can be presumed that he  visited the place for official work.  As the  misappropriation of the property is not proved, therefore,  the question of criminal conspiracy does not arise.  Apart  from this, the crime of criminal conspiracy is an  independent crime.  No evidence from the prosecution  side for this has been submitted."  

7.      The State accepted the said judgment.  No appeal was preferred  thereagainst.  Long thereafter, namely on 1st May, 1982, for reasons best  known to the appellant, a disciplinary proceeding was initiated against the  respondent on two articles of charges which read as under :-

(a)     During his posting at Barmer, Rajasthan in 1983,  the Respondent had mis-utilized a Government  vehicle and revolver for an unauthorized tour of  the border area falling under PS Ramser outside  the requirement of his official duties, without the  knowledge or permission of his superior officers.

(b)     Unauthorisedly collected and carried smuggled  articles in the Government jeep which was an act  unbecoming of an intelligence officer and  constituted gross professional misconduct.

8.      In the said departmental proceeding the police officers concerned  were not examined.  The Customs Officers were also not examined.  No  official on behalf of the department was examined, except the aforesaid  Mool Singh.  Mool Singh, in his evidence, fully supported the case of the  respondent.  He stated that the predecessors of the respondent also used to  carry on similar duties and functions.  He also disclosed that another officer,  who had been requested to accompany them, refused to do so.  He also  stated that in similar situations, recovered smuggled goods had been handed  over to the Customs Authorities. He also referred to an instance in regard to  a similar incident which took place during the tenure of Shri D.L. Oza,  CDIO.

9,      Admittedly, Bhoor Singh who was driving the Jonga Jeep was in  inebriated condition. He is also said to be the owner of the vehicle.  How  responsible police officers were traveling in the jeep of a well known  smuggler defies all logic.   

9.      Respondent intended to examine one witness in the departmental  proceedings, Jumma.  He was not permitted to do so.  During the course of  the disciplinary proceedings his Defence Assistant was not available.  A  request was made to allow him to attend the enquiry proceedings.  The said  request was not acceded to.   

10.     The Inquiry Officer, however, by his report dated 9th December, 1982,  found the respondent guilty of the charges of misconduct leveled against  him.  

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11.     The Disciplinary Authority passed an order of dismissal on 2nd  February, 1993.  The only reason assigned in support thereof reads as  under:-

"Therefore, on due appreciation of the inquiry report  furnished by the Inquiry Officer and representation  against it made by the charged officer, I feel that the  charges leveled against the delinquent government  servant have been duly established.  I being the  Disciplinary Authority, dismiss Shri N.S. Shekhawat,  ACIO-II (G) from the service with immediate effect,  under Rule 11 (ix) of CCS (CC&A) Rules, 1965."  

12.     An appeal was preferred thereagainst.  The appellate authority  dismissed the said appeal by a detailed judgment dated 17th April, 2000,  stating:-

"6.     That I, JD, SIB, Jaipur being the Appellate  Authority after carefully examining the appeal preferred  by Sh. N.S. Shekhawat, dismissed ACIO-II, the Inquiry  Report submitted by the Inquiry Officer (Shri Bhagirath  Mina, the then Assistant Director, Jodhpur), the order of  the Disciplinary Authority (i.e. Shri Ram Das, Assistant  Director, SIB, Jaipur), and other relevant documents on  record have found :-  

(i)     That Rule 14 (15) of the CCS (CCA) Rules , 1965  provides that the Inquiry Officer, in his discretion,  can call for new evidence in case he feels that there  is an inherent lacuna in the evidence produced  before him and that production of such evidence is  necessary in the interest of justice.  Accordingly,  the Inquiry Officer was well within his rights to  call Shri Mool Singh, JIO-II (MT) for deposition.  

(ii)    That the request of Shri N.S. Shekhawat for  engaging a legal practioner as his defence assistant  was rightly turned down, as the Presenting Officer  was not a legal practitioner nor were there any  special circumstances under which the delinquent  could be allowed to engage a legal practitioner.

(iii)   That it is also revealed from the records of the  inquiry that proper summons were issued to the  defence assistant viz.,  Shri Madhukar Sharma,  Spd. (PREV), Customs and Central Excise, Ajmer  and to his Controlling Officer viz., the Collector,  Central Excise and Customs, Jaipur, requesting  him to relieve Shri Sharma for attending the  disciplinary proceedings, but he did not turn up at  the enquiry.  

(iv)    That the request of the delinquent officer to  produce one Jumma as his defence witness was  rightly turned down as there was no relevance in  his deposition.

(v)     That the C.O. was given full opportunity to defend  himself.  

(vi)    That from the records of the departmental  proceedings, it is conclusively proved that the visit  of Shri NS. Shekhawat top the border area near

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Village Ramsar (District Barmer) on the night of  August 5, 1983 was unauthorized, during which he  was detected and intercepted by the local police for  unauthorisedly carrying smuggled goods 530  electronic calculators, Made in Japan, 19 Sanyo  tape-cum-transistors, Made in Japan, 57 ’thans’  measuring 1767 mts. of synthetic fabric of ’Pak’  origin; which were valued at Rs. 1 lakh 30  thousand at that time in the official governmental  jeep of IB beyond any conceivable call of his  legitimate duties.  In his deposition dated Oct. 22,  1992 before the I.O., Shri Shekhawat has admitted  having visited the area near Village Ramsar,  District Barmer without the knowledge/authority  of his Senior Officers for undertaking such a tour  which certainly required the permission of the  controlling officers at Jodhpur/Jaipur.

(vii)   That there is nothing on record to indicate that the  proceedings were not conducted as per the  procedure laid down under CCS (CCA) Rules,  1965."

13.     Respondent preferred an Original Application before the Central  Administrative Tribunal, Jaipur Bench questioning the said order of the  disciplinary authority. By a judgment and order dated 23rd October, 2001,  the Tribunal, upon considering the material at some details, held :-

"In the instant case, there is no evidence to corroborate  the charge against the applicant.  The case of applicant is  solely or mainly depend on the statement of Shri Mool  Chand, (sic) who does not support the charges at all.   Criminal Court has already acquitted the accused on the  basis of no evidence.  In support of the allegations  against the applicant, no preliminary enquiry was  conducted in this case.  Therefore, we are of the  considered opinion that there is no evidence on record to  sustain the charges against the applicant and it is a case  of no evidence.  Therefore, the finding of the Inquiry  Officer can be characterized as perverse."     Respondent, on the basis of the said findings, was directed to be  reinstated in service with all consequential benefits.  

14.     A Writ Petition preferred thereagainst has been dismissed by a  Division Bench of the Rajasthan High Court by reason of the impugned  judgment.

13.     Mr. Vikas Singh, learned Additional Solicitor General, appearing on  behalf of the appellant would submit that the Tribunal and the High Court  committed a serious error in passing the impugned judgments in so far as  they failed to take into consideration :-  

1)      it is permissible for the disciplinary authority to initiate a  departmental proceeding even after the judgment of  acquittal is recorded in a criminal case inasmuch as   similar evidence can be viewed differently by the  criminal court and an inquiry officer having regard to the  standard of proof involved in the respective proceedings ;   2)      the criminal court having acquitted the respondent only  on benefit of doubt, the departmental proceeding was  maintainable; 3)      in any event, the charges levelled against the respondent  in the criminal case and the departmental proceeding

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were different; 4)      the High Court, although noticed the legal principles  operating in the field correctly, failed to apply the same  to the facts of the present case;   5)      the Tribunal committed a serious illegality in opining that  a preliminary inquiry was required to be conducted after  the judgment of acquittal was passed.

14.     Mr. Sushil Kumar Jain, learned counsel appearing on behalf of the  respondent, on the other hand, urged :-  

1)      That the Customs Authorities as also the learned Munsif- cum-Judicial Magistrate having held that the respondent  was not guilty of the charges, the impugned judgment is  unassailable. 2)      Respondent being the Officer Incharge of the Unit, was  entitled to take all such actions which were necessary to  act as an Intelligence Officer.  Jumma who could have  proved that the smugglers were the target of the  respondent, having not been examined, the Principle of  Natural Justice was violated.   3)      No Circular or Notification has been brought on records  to show that any permission from any higher authority  was required before the respondent could take the official  jeep for carrying out his official duties. 4)      As an Incharge of the office, the respondent indisputably  was entitled to use the government vehicle as also the  arms.   5)      In view of the fact that the respondent had not been found  guilty both by the Customs Authorities and the Criminal  Court, any embarrassment on the part of the department,  on account of any action of the respondent did not and  could not arise. 6)       The only material brought on record being the orders of  the Customs Authorities, the judgment of the criminal  court and the evidence of Mool Singh, the finding  recorded by the disciplinary authority was wholly  perverse.  

15.     Respondent was a responsible officer.  He was incharge of a unit.  The  charge against the respondent was that he had been found at the International  Border, 100 kms. away from the place of posting, accompanied by a driver  and a private person, having not been authorized by his superiors to make  the said trip and the same was not in the course of his legitimate duties and  that he had hatched a conspiracy with the smugglers.  He is also accused of  conspiring with the foreigners.   

16.     Initiation of the departmental proceeding must be viewed in the  background of his total exoneration by the Customs Authorities and the  criminal court.

17.     The alleged occurrence took place on 5th August, 1983.  As he was  arrested in connection with the said matter, he must have been placed under  suspension.  The proceeding under the Customs Act came to an end on 17th  March, 1986.  He was acquitted in the criminal case on 11th July, 1991.  The  Department was aware of the said proceedings.  They were aware of his  defence.  It has not been denied or disputed that obtaining intelligence  reports as regard anti smuggling activities was one of his functions.  It is one  thing to say that in discharge of the said function he was over enthusiastic  but it is another thing to say that he hatched a conspiracy to assist the  smugglers in carrying out smuggling activities.  

18.     Trans-border smuggling is a subject of federal function.  We fail to  understand as to why no deeper probe was made in regard to his  involvement, if any, vis-a-vis the role of the officers of the concerned police

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station.  Larger public interest demanded such probe.  If the contention of  the appellant was correct, the competent authority of the Central  Government should have taken up the matter with the State Government.  Such inaction on the part of the appellant is a matter of deep pubic concern.

19.     If the charges levelled against the respondent in the departmental  proceeding only related to administrative lapses on his part, it could have  been initiated long back.  Why was it initiated after a period nine years has  not been explained.  On a query made by us, the learned Additional Solicitor  General, submitted that the department must have been waiting for the  outcome of the criminal case.  If that is so, it was expected that the evidence  would have been adduced in the criminal proceeding to establish that the  misuse of the jeep and the official revolver as also visiting the border area by  the respondent formed part of conspiracy.   

The identity and the activity of the private person, who was found in  the company of the respondent, should have been investigated by the  competent authority, particularly when respondent was working in the  Intelligence Department.   

20.     Whether incidental or ancillary to the issue which arose in the  departmental proceeding, we must place on record that the Department of  Customs of the Union of India having examined the entire question, they  found the respondent innocent.  As trans-border smuggling was the common  theme both before the said authority as also in the criminal court, the  department concerned was expected to keep a strict vigil thereover. The  question of mis-utilisation of jeep etc., was not brought to the notice of the  Customs Authorities.  Such a question was also not raised in the criminal  proceeding.  It was necessary to do so so as to prove the charges of  conspiracy.  The prosecution, thus, utterly failed to prove such a charge.   

21.     In the departmental proceeding the appellant was bound to comply  with the principles of natural justice.  Copies of some documents were not  supplied. Services of a legal practitioner, may not be a matter of right, but he  was atleast entitled to the effective assistance of the departmental  representative, Shri Madhukar Sharma.  The same was also for all intent and  purport denied.  

The Tribunal in this behalf opined :-

"       It is undisputed fact that Shri Mool Singh was  examined although his name was not in the list of  witnesses.  The applicant’s request to call Shri Jumma as  defence witness was not allowed.  Not only this but in the  absence of the departmental representative Shri  Madhukar Sharma, the applicant was compelled to cross- examine Shri Mool Singh who was cited as main witness  in this case.  It is also not disputed that the Inquiry  Officer himself has cross-examined the applicant which  was the duty of the departmental representatives.  It  appears that the conduct of the Inquiry Officer in this  case has been throughout biased and it appears that he  has acted with predetermined notions which should have  caused prejudice to the applicant."

       We are in general agreement with the said observations.   

22.     Our attention has been drawn to the order passed by the appellate  authority dated 17th April, 2000.  It is a long order, a portion whereof we  have noticed hereinbefore.  

23.     We may at this juncture notice that the appellate authority did not  consider the legal question that the Inquiry Officer was bound to take  recourse to Rule 14 of the CCS (CCA) Rules particularly when, apart from

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the orders of the Customs Authorities and the criminal case, no other  evidence appears to have been brought on record.   No reason has been  assigned as to why the request of the respondent to call ’Jumma’ as defence  witness to prove the bonafide of the respondent had been turned down.  

The bias on the part of the Inquiry Officer is explicit from the record.    Why the Inquiry Officer cross-examined the respondent is beyond  anybody’s comprehension.  He was not the prosecutor.  A Presenting Officer  had been appointed.  The Inquiry Officer could not have taken over the job  of the Presenting Officer, particularly when he was a superior officer. Valid  and sufficient reasons have not been assigned by the Inquiry Officer in this  behalf.  His finding that the respondent should have informed his superior  who was available at the close point, is contrary to the evidence of Mool  Singh.  According to him, the practice followed by the officers similarly  situated was to take the goods found abandoned to the Customs Department  and to the police station.  

24.     It has been suggested before us that the charges against the respondent  in the criminal case and the departmental proceeding were different.   However, we fail to understand what sort of public duty the respondent was  expected to perform when he was intercepted by the police in a jeep which  was driven by Bhoor Singh, a notorious smuggler who had been detained  under MISA.  If the conduct of the respondent did not cause any  embarrassment to the department in the year 1983, how, after exoneration by  the Customs Authorities and acquittal by the criminal court, his acts  embarrassed the department, so as to form the basis of imputation of  misconduct, is again beyond anybody’s comprehension.   The Inquiry  Officer and consequently the disciplinary authority misdirected themselves  in law as they posed unto themselves a wrong question.  The appellate  authority’s findings are noticed in paragraph 12 (supra) had not been  considered at all.  

       The disciplinary authority, therefore, for all intent and purport,  differed with the findings of the Customs Department as well as the criminal  court, but no basis therefore was disclosed.  No such evidence was brought  on record.  No witness was examined to prove the said fact.  Even no  documentary evidence was produced.  The entire basis of the said finding is  the ipse dixit of the Disciplinary Authority and the Appellate Authority.  

       It again goes to show that despite the findings of the Customs  Authorities and the Criminal Court, what was uppermost in the mind of the  disciplinary authority and the appellate authority was his alleged  involvement in the smuggling activity.  

25.     There cannot be any doubt whatsoever, as has been submitted by the  learned Additional Solicitor General, that initiation of departmental  proceeding is permissible even after the judgment of acquittal is recorded by  the criminal court.  But the same would not mean that a proceeding would be  initiated only because it is lawful to do so.  A departmental proceeding could  be initiated if the department intended to adduce any evidence which is in its  power and possession to prove the charges against the delinquent officer.   Such a proceeding must be initiated bona fide.  The action of the authority  even in this behalf must be reasonable and fair.    

26.     Reliance has been placed on T.N.C.S. Corporation Ltd. and others vs.   K. Meerabai  : (2006) 2 SCC 255 wherein this court opined :-

"30.  The scope of disciplinary proceedings and the scope  of criminal proceedings in a Court of Criminal law are  quite distinct, exclusive and independent of each other.  The prosecution proceedings launched against the  respondent herein were in respect of offences punishable  under Sections 409 and 477-A I.P.C., whereas the  Departmental Proceedings as initiated against her were in  respect of the charges of misappropriation and other

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fraudulent practices such as deliberate omission to bring  into accounts the stock received showing bogus issues in  the records, falsification of accounts, submission of  defective accounts, tampering of records, manipulation of  accounts and records etc. Thus, the respondent herein  was proceeded against for quite different charges and on  different sets of facts before the Court of Chief Judicial  Magistrate, on the one hand, and before the Departmental  Enquiry on the other."

It was, thus, a case where the charges were different.  

27.     In Ajit Kumar Nag  vs.  General Manager (PJ), Indian Oil Corporation  Ltd., Haldia and others :  (2005) 7 SCC 764 this court opined that acquittal  of a delinquent by a criminal court would not preclude an employer from  taking action by the disciplinary authority, if it is otherwise permissible.   Such a departmental proceeding, however, cannot be initiated mala fide.  It  must be conducted in accordance with law.   

An acquittal of a delinquent ipso facto may not absolve him from  undergoing disciplinary inquiry.  However, where the charges are absolutely  identical, ordinarily the same would not be taken resorted to.    

We may notice that in Ajit Kumar Nag (supra) the order of dismissal  was found to have been legally proved despite the fact that the delinquent  was acquitted by the court of law.   

If the Inquiry Officer is biased, no action could have been be taken on  the basis thereof.  It renders the proceeding a nullity.  Such an inherent  defect in the disciplinary proceeding cannot be cured by an order of the  appellate authority.  An order which is void cannot be validated by the  appellate authority as the materials which were not  brought on record could  not be taken into consideration by it.   

In Ajit Kumar Nag (supra) it was held :-

"44.     We are aware of the normal rule that a person must have  a fair trial and a fair appeal and he cannot be asked to be  satisfied with an unfair trial and a fair appeal. We are also  conscious of the general principle that pre-decisional hearing is  better and should always be preferred to post- decisional  hearing. We are further aware that it has been stated that apart  from Laws of Men, Laws of God also observe the rule of audi  alteram partem. It has been stated that the first hearing in  human history was given in the Garden of Eden. God did not  pass sentence upon Adam and Eve before giving an opportunity  to show cause as to why they had eaten forbidden fruit. [See R.  v. University of Cambridge]. But we are also aware that  principles of natural justice are not rigid or immutable and  hence they cannot be imprisoned in a straight-jacket. They must  yield to and change with exigencies of situations. They must be  confined within their limits and cannot be allowed to run wild.  It has been stated ; "To do a great right after all, it is permissible  sometimes to do a little wrong".

28.     Reliance has also been placed on Commissioner of Police, New Delhi  vs.  Narender Singh : (2006) 4 SCC 265 wherein this Court was dealing with  a case of a police constable, who was accused of committing theft of arms.   He made a confession of his involvement.  It was found to be inadmissible in  the criminal proceeding.  In that factual backdrop this Court held :-

"12.  It is not in dispute that the standard of proof  required in recording a finding of conviction in a criminal  case and in a departmental proceeding are distinct and  different. Whereas in a criminal case, it is essential to

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prove a charge beyond all reasonable doubt, in a  departmental proceeding preponderance of probability  would serve the purpose. [See Kamaladevi Agarwal v.  State of W.B.].  13.     It is now well-settled by reason of a catena of  decisions of this Court that if an employee has been  acquitted of a criminal charge, the same by itself would  not be a ground not to initiate a departmental proceeding  against him or to drop the same in the event an order of  acquittal is passed. "

29.     It is not a case where a mere benefit of doubt had been given to the  respondent in the criminal proceeding.  The criminal court has given a  positive finding that the prosecution has not been able to prove that the  accused had misappropriated the goods.  His visit to the border for  discharging his duties did not tantamount to misuse of the post or the  authority.  No evidence has been presented that he did not have the authority  to go to the border side on official duties and even the department had not  forbidden him from going to that place.   

It was held that as misappropriation of the property has not been  proved, the question of any criminal conspiracy did not arise.  

       No evidence had been adduced to bring home the charge of criminal  conspiracy, which is an independent crime.

30.     Respondent was found to have been  carrying the official revolver for  his safety.  No evidence was also adduced to establish that when confronted  by the police party, he had tried to show or used the same or threatened them  with the same or used the official revolver with the intention of doing illegal  work.  

       That the respondent was allotted a jeep and also allowed to carry with  him the official revolver, was accepted by the prosecution side in the  criminal case, and thus, he was found not guilty under Section 27 of the  Arms Act.   

31.     In Sawai Singh  vs.  State of Rajasthan : (1986) 3 SCC 454 this Court  opined :- "16  \005. But in a departmental enquiry entailing  consequences like loss of job which now-a-days means  loss of livelihood, there must be fair play in action, in  respect of an order involving adverse or penal  consequences against an employee, there must be  investigations to the charges consistent with the  requirement of the situation in accordance with the  principles of natural justice in so far as these are  applicable in a particular situation. 17. The application of those principles of natural justice  must always be in conformity with the scheme of the Act  and the subject matter of the case. It is not possible to lay  down any rigid rules as to which principle of natural  justice is to be applied. There is no such thing as  technical natural justice. The requirements of natural  justice depend upon the facts and circumstances of the  case, the nature of the enquiry, the rules under which the  Tribunal is acting, the subject matter to be dealt with and  so on. Concept of fair play in action which is the basis of  natural justice must depend upon the particular lis  between the parties."

32.     In Jasbir Singh  vs. Punjab & Sind Bank and others : 2006 (11)  SCALE 204 it was held :-

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 11  

                "7      The learned     counsel for the respondent contended  that the decision of this Court has no application.  He  may be right.  But, it is not necessary for us to delve deep  into the matter as we are of the opinion that the judgment  in civil matter having attained finality, the same was  binding on Respondent-Bank."

33.     In M.V. Bijlani  vs. Union of India and others : (2006) 8 SCC 8 this  Court st ated the law in the following terms  :-

"25.    \005.Although the charges in a departmental  proceedings are not required to be proved like a criminal  trial, i.e., beyond all reasonable doubts, we cannot lose  sight of the fact that the Enquiry Officer performs a  quasi-judicial function, who upon analysing the  documents must arrive at a conclusion that there had  been a preponderance of probability to prove the charges  on the basis of materials on record. While doing so, he  cannot take into consideration any irrelevant fact. He  cannot refuse to consider the relevant facts. He cannot  shift the burden of proof. He cannot reject the relevant  testimony of the witnesses only on the basis of surmises  and conjectures. He cannot enquire into the allegations  with which the delinquent officer had not been charged  with."  

In this case, evidence of Mool Singh is totally against the department.   He was not cross-examined.  It was not held that he had deposed falsely.

34.     For the abovesaid reasons, there is no infirmity in the impugned  judgment.  The appeal fails and is accordingly dismissed.   

35.     Before parting, we may, however, notice that the respondent was  reinstated in service.  However, after the order of stay was granted by this  Court on 27th March, 2006, his services had again been terminated.  He is,  therefore, directed to be reinstated forthwith with all consequential benefits.   The order of the Tribunal must be complied with in its entirety forthwith.   Respondent is entitled to costs of the appeal which is assessed at Rupees  One Lakh.