JUDGMENT Shishir Kumar, J.
1. The present writ petition has been filed for quashing the orders dated 12.12.2001, Annexure-13 to the writ petition and the order dated 9.5.2002, Annexxure-15 to the writ petition.
2. The facts arising out of the writ petition are that the petitioner was working as an employee of the bank. A disciplinary proceeding has been initiated against him for the conduct of the petitioner as well as involvement in a criminal case. A show cause notice was given and a charge sheet was also given to the petitioner and an Inquiry Officer was appointed and the petitioner was given full opportunity during the pendency of the inquiry and by order dated 12 12.2001, the petitioner's services have been terminated and an amount to the time of Rs. 3,84,086.00 was directed to be recovered from the petitioner The petitioner submits that he had filed an appeal and the appeal too has been dismissed. Aggrieved by the aforesaid order the petitioner has approached this Court.
3. It has been contended on behalf of the petitioner that during the inquiry proceeding the petitioner has not been afforded an opportunity and even the petitioner has not been permitted to make the statement before the Inquiry Officer Further submission made on behalf of the petitioner is that as the petitioner was involved in a criminal case and subsequently the petitioner was acquitted, but the suspension allowance for which the petitioner was entitled was not being paid, as such the petitioner filed a writ petition before this Court and by order in the writ petition, this Court was pleased to direct the respondents to make the payment of suspension allowance and to reinstate the petitioner. In spite of the directions issued by this Court, the order passed in the writ petition was not complied with. When the petitioner filed a contempt application and the respondents were directed to appear in person, then the petitioner was reinstated and the payment has been made. The petitioner submits that in view of the aforesaid fact and circumstances, the respondent-disciplinary authority became annoyed and a punishment of dismissal has been awarded.
4. One of the charges against the petitioner that during the earlier suspension period the petitioner was running a canteen on the railway station is not supported by any evidence. One Smt. Razia Begum in whose name the license was granted has not been produced before the Inquiry Officer for the purpose of making the statement
5. Further submission made on behalf of the petitioner is that involvement in a criminal case and as the petitioner has not yet been convicted, cannot be a basis for terminating the services of the petitioner. The other charges which have been leveled against the petitioner cannot lead to major punishment. Further submission made on behalf of the petitioner is that the appellate authority has also not considered the grounds raised in the appeal and no personal hearing was given to the petitioner, therefore, total punishment awarded against the petitioner is vitiated. As such the writ petition is liable to be allowed.
6. Notices were issued and a counter affidavit has been filed. It has been submitted on behalf of the respondents that the petitioner was tried by the Chief Judicial Magistrate, Fatehpur in Case No. 239 of 1993 under Sections 419, 420, 468, 408, 471 and 477A IPC and the petitioner was acquitted on 25 6.1993 mainly due to non-appearance of hand writing expert as a witness from the prosecution side. Subsequent to the acquittal, the petitioner submitted an application before the Chairman on 26.6.1993 for reinstatement. On the application filed by the petitioner it was informed to the petitioner that the bank is proposing to file an appeal/revision against the order passed in favour of the petitioner and till the matter is finalized, the petitioner cannot be reinstated and the payment cannot be made. But in the mean time the petitioner filed a writ petition before this Court seeking a relief of reinstatement and payment of suspension allowance and by order dated 26.4.1996 this Court directed the bank to reinstate the petitioner and to pay the arrears of salary. In compliance of the order of this Court, the petitioner was reinstated and salary was paid. It has clearly been averred in the counter affidavit that no officer of the bank was having any mala fide attitude or intention against the petitioner. The averment to this effect that due to the order passed by this Court, the authorities concerned were having an opinion to punish the petitioner, therefore, the petitioner has been punished subsequently is also not correct. A detailed averment with specific incident has been mentioned in the counter affidavit that during the proceedings before the Inquiry Officer, the proper opportunity as required under the law was given to the petitioner. One of the reasons for nonpayment of suspension allowance was that it came to the knowledge of the authorities concerned that the petitioner during the period of suspension was gainfully involved in a business at railway station by running a Canteen. Though the petitioner has averred in the writ petition that Smt. Razia Begum was not produced as a witness, therefore, the charge to that effect is not proved. An averment has been made in para 24 of the counter affidavit that the petitioner has made an application under Section 156 Cr.P.C. before the Chief Judicial Magistrate-III, Fatehpur on 2.11.1996 admitting the said fact that the petitioner was running a canteen during that period and the Inquiry Officer has issued notice to Smt. Razia Begum but she refused to make a statement before the Inquiry Officer. When the petitioner was involved in subsequent criminal case of having explosive with criminals and he was arrested, then the petitioner was suspended and the disciplinary proceeding was initiated. Respondents submitted that the criminal proceeding against the petitioner under Section 5 Explosive Act is still pending and that has not yet been finalised. As there is no illegality in the disciplinary proceedings against the petitioner and the appellate authority has also considered the appeal filed by the petitioner, the writ petition is liable to be dismissed.
7. I have heard the learned Counsel for the petitioner and Sri R.B. Sahai for the respondents and have perused the record. Admittedly there is no dispute to this effect that the petitioner was involved in a criminal case and that has been terminated in favour of the petitioner on technical ground only due to the fact that hand writing expert was not produced and during that period it has also been proved from the record that the petitioner was running a Canteen and has also received the suspension allowance on the basis of the order of this Court which can easily be treated as concealment of this fact. In my opinion it is misconduct. Subsequently a charge sheet was given to the petitioner. One of the charges against the petitioner was that he is absent without any proper sanction of the competent authority from 22.3.2000. The explanation to that effect was given by the petitioner in the application that his father in law was admitted in hospital but subsequently this fact has been admitted that from 12.3.2000 to 7.4.2000, he was detained in Rai Bareli Jail, as he was arrested under Section 5 of the Explosive Act having bombs in his possession with two other persons. One of the charges that on 7.5.98 and 8.5.1998, Rs. 103/- and on 9.5.1998 Rs. 152/- were drawn from the account of the bank without sanction of the Branch Manager. Another charge against the petitioner was that during the suspension period from 12.12.1986 to 14.4.1996, the petitioner has taken suspension allowance in spite of the fact that during this period the petitioner was running a Canteen at the railway Station, Fatehpur. This fact is clear from an affidavit/complaint filed by the petitioner himself under Section 156 Cr.P.C. before the Judicial Magistrate, Fatehpur which is a part of the counter affidavit annexed as Annexure-24 to the Counter affidavit. The petitioner himself has admitted this fact that he was running the said Canteen during this period. As the petitioner admittedly has taken the suspension allowance during the suspension period in spite of the fact that he was gainfully doing some business for his monetary gain, as such in my opinion this is misconduct, which is not permissible. It is not the case of the petitioner that during the disciplinary proceedings, the petitioner was not afforded an opportunity. The disciplinary authority before passing the order dated 12.12.2001 has given a show cause notice and the petitioner has submitted a reply and the reply of the petitioner was considered and then the disciplinary authority has passed the order dated 12.12.2001 by which the services of the petitioner were dispensed with. The appellate authority on an appeal filed by the petitioner has also considered the grievance raised by the petitioner and has come to the conclusion that the appeal lacks merit and as such the same was dismissed-vide its order dated 9.5.2002.
8. As regards the malafide against respondent No. 3 it is clear from the appellate order that respondent No. 3 being a Chairman as certain allegations were alleged against him, as such during decision of appeal of the petitioner he has not participated in the said Board meeting. This clearly goes to show that he was not having any malafide against the petitioner.
9. Now it is well settled by this Court as well as by the Apex Court that power of judicial review in cases where the proper procedure relating to the disciplinary inquiry against a charged employee has been completed and it is not the case of the charged employee that there is any illegality in the procedure of the inquiry and the disciplinary authority on the basis of the report of the Inquiry Officer, has come to the conclusion that the charge is proved and the charges leveled against the incumbent is a misconduct, this Court while exercising the power under Article 226 of the Constitution of India will not reappraise the finding recorded by the disciplinary authority which is based on the basis of the proper inquiry against the person concerned. In the case reported in Judgment Today 2006 (2) Page 82 Government of Andhra Pradesh v. Mohd. Nasirulla Khan, the Apex Court has held that power of judicial review of the administrative decision as the inquiry officer found charges proved beyond any doubt, finding recorded by the disciplinary authority or by the Inquiry officer upheld by the appellate authority and the Tribunal, the High Court has got no power for judicial review while exercising the jurisdiction under Article 226 of the Constitution of India.
10. As regards the contention raised on behalf of the petitioner that as admittedly the criminal proceeding is still pending against the petitioner, therefore, the disciplinary authority should have waited for a decision in the criminal case and an involvement in a criminal case cannot be a ground for proceeding with the disciplinary inquiry and punishment. I have considered the said submission made on behalf of the petitioner. The petitioner was admittedly involved earlier in a criminal case and was acquitted only on technical ground and subsequently now criminal case which is pending against the petitioner is under Section 5 of the Explosive Act keeping bombs in his possession, 1 am of opinion that the disciplinary authority or the appointing authority under whom the petitioner was working had full jurisdiction and authority to look into the previous conduct of the petitioner and the involvement in the criminal case and the contention of the petitioner to this effect cannot be accepted in view of the Apex Court judgment , Ajit Kumar Nag v. General Manger, Indian Oil Corporation. The Apex Court has gone to this extent that if a person is acquitted in the criminal case it does not preclude the employer to take any action against the employee. In , Allahabad District Cooperative Bank v. Viddya Viruddh Mishra, the similar view has been taken by the Apex Court that it is not necessary to wait for the decision of the criminal case. The departmental proceeding can be initiated and a person can be punished. In view of the aforesaid fact, I am opinion that there is no illegality in the order passed by the respondent.
11. In the result the writ petition is devoid of merit and is hereby dismissed. There shall be no order as to costs.