Union of India v. Ram Deo — 1978 DIGILAW 1129 (ALL)

JUDGMENT Deoki Nandan, J. - The Union of India has appealed from the judgment and decree of the IV Additional District Judge, Kanpur, dated March 19, 1975, allowing the plaintiff-respondents appeal from the trial Court's decree dismissing his suit. The suit was for a declaration that the continued suspension of the plaintiff-respondent from service after his acquittal, on 13th March, 1973 by the Judicial Magistrate, Kanpur, on a charge for an offence under Section 411 of the I. P. C., is illegal and ultra vires; for a mandatory injunction directing the Union of India "to resume the plaintiff to duty on his post of Darwan of the Ordnance Parachute Factory, Kanpur", and for a further declaration that the disciplinary proceedings taken against the plaintiff-respondent in pursuance of a charge-sheet dated 12th July, 1973 by the General Manager of the Ordnance Parachute Factory, Kanpur, are illegal and ultra vires, with the consequential relief of permanent injunction restraining the Union of India from conducting or continuing the disciplinary proceedings or taking any action in pursuance of the charge-sheet. 2. Of the five issued framed by the trial court the first three issues are material. They are: 1. Whether the charge-sheet dated 12-7-1973 does not contain the same charges in respect of which the plaintiff was prosecuted under Section 411, I.P.C. as alleged in para 7 of the W.S. If so, its effect ? Whether the charges contained in the charge-sheet dated 12-7-1973 are substantially and materially different from the charge under Section 411, I.P.C. for which the plaintiff, was prosecuted? If so, its effect ? 2. Whether the plaintiffs suspension can continue after his acquittal from the order on 13-3-1973 ? If not, its effect? 3. Whether disciplinary proceedings in pursuance of charge sheet dated 12-7-73 against the plaintiff can be taken after his acquittal on 13-3-1973? 3. If so, its effect ? 2. Whether the plaintiffs suspension can continue after his acquittal from the order on 13-3-1973 ? If not, its effect? 3. Whether disciplinary proceedings in pursuance of charge sheet dated 12-7-73 against the plaintiff can be taken after his acquittal on 13-3-1973? 3. On these issues the trial court found that the ingredients of the charge against the plaintiff-respondent in the disciplinary proceedings, were different from those of the charge in the criminal case; that even if it be assumed that the charge in respect of which the plaintiff-respondent is being proceeded against departmentally is based on the same facts as those on which the charge in the criminal case was based, the departmental enquiry was not barred by the fact of his acquittal in the criminal case, as the same was not honourable; and that, therefore, the Union of India, is well within its rights to proceed with the departmental enquiry against the plaintiff and to continue to keep him under suspension until the conclusion of the departmental enquiry. 4. On appeal by the plaintiff-respondent before the District Court, the 1st Additional District Judge, Kanpur, who heard it, held that he was honourably acquitted of the charge in the criminal case against him, and that although, "the words misconduct and misbehaviour have been added" in the charge, Ext. 5, in the disciplinary proceedings, it cannot be said that the charge was different from that in the criminal case. In the result the lower appellate court held that the Union of India has no right to continue the departmental inquiry against the plaintiff-respondent or to keep him under suspension. 5. Mr. J.N. Tiwari, learned Senior Standing Counsel for the Union of India, has assailed the twin findings of the learned Additional District Judge, and contended, that, the subject-matter of the enquiry in the criminal proceedings,. and the issues involved therein were basically and materially different from those involved in the disciplinary proceedings. Indeed, the charge-sheet served therein Ext. 5, which is dated 12th July, 1973, was after the plaintiff-respondents acquittal of the charge, under Section 411 of the I.P.C. in the criminal proceedings; and in this view of the matter there was no principle or authority for holding that the disciplinary proceedings, were 'barred after the plaintiff-respondents acquittal. Mr. Tiwari further, contended that, the judgment of the learned Magistrate in the criminal case, Ext. Mr. Tiwari further, contended that, the judgment of the learned Magistrate in the criminal case, Ext. 1, clearly showed that the acquittal, was not honourable inasmuch as it was not a case where the charge may have been, found to be false or disproved, but a case where the charge was merely held to be not proved on account of the strict rules of criminal procedure governing the trial of offences by a criminal court, and the principle of jurisprudence that a criminal charge must be proved beyond any shadow of doubt. Mr. Tiwari further emphasised the fact, that the two witnesses of recovery of the stolen property from the plaintiff-respondents possession turned hostile in the criminal case, and unifier the circumstances, although the fact, of recovery was proved by the recovery memo and the evidence of the Sub-Inspector who had made the recovery, the learned Magistrate was unable to hold the plaintiff-respondent guilty of the charge and had to acquit him on the basis that the charge could not be said to have been proved in accordance with the procedure prescribed for criminal trials. 6. The ingredients of a charge under Section 411 of the I.P.C. are : 1. Receiving or retaining property; 2. The property so received or retained must be stolen; 3. The retention must be dishonest, and 4. The property must have been received or retained with the knowledge that it was stolen property. Now, one of the material facts which has necessarily to be established in a prosecution for an offence under Section 411 of the I.P.C., is the possession or dominion of the accused over the stolen property. The retention must be dishonest, and 4. The property must have been received or retained with the knowledge that it was stolen property. Now, one of the material facts which has necessarily to be established in a prosecution for an offence under Section 411 of the I.P.C., is the possession or dominion of the accused over the stolen property. Normally, recovery of stolen property from the possession of the accused, soon after the theft is considered to be a very important piece of evidence, in a trial for an offence under Section 411, I.P.C. and in the instant case, since the criminal court had to decide the matter in accordance with the procedure prescribed by the Code of Criminal Procedure and the rules of evidence laid down by the Indian Evidence Act, it properly held that recovery of the stolen articles from the possession of the plaintiff-respondent was not proved in accordance with the law, when the two witnesses of recovery without whose presence a police officer cannot conduct a search and make a recovery, turned hostile, and stated that the recovery of the articles was not made in their presence. The acquittal of the plaintiff-respondent was thus occasioned in no small measure by the technical rule prescribed by Section 103 of the Cr. P.C. 1898, requiring the presence of two or more "respectable inhabitants of the locality in which the place to be searched is situate, to attend and witness the search". It is not suggested that the Sub-Inspector of Police, who made the recovery and prepared the recovery memo, was less respectable or had prepared a false recovery memo, but the witnesses of recovery having turned hostile and having deposed that the recovery was not made before them, it cannot be said that it was made in accordance with the procedure prescribed by the Cr. P.C. It is noticeable that the learned Magistrate even held that the property in question was stolen property, and that it was stolen at a theft committed in the Ordnance Factory. P.C. It is noticeable that the learned Magistrate even held that the property in question was stolen property, and that it was stolen at a theft committed in the Ordnance Factory. It was the legal ingenuity of the plaintiff-respondent, in denying the factum of recovery of the stolen property from his possession, which placed on the prosecution the entire burden of proving beyond any reasonable doubt the fact that the recovery of the stolen property was made from the plaintiff-respondent, in accordance with the procedure prescribed by the criminal law, and this the prosecution was unable to do because the two "respectable inhabitants of the locality" who had been called by the police Sub-Inspector to witness the search turned hostile and denied the fact of the recovery having been made in their presence. In the conditions which exist in our country today, the possibility of the witnesses having been suborned by the plaintiff-respondent himself cannot be ruled out, although he had to Ire acquitted of the charge in accordance with law, for suspicion is not proof of a fact. 7. The article of charge against the plaintiff-respondent in the disciplinary proceedings, reads as under: "Gross misconduct that on 9-9-1970 at about 10.00 P.M. certain materials belonging to the Ordnance Parachute Factory, Kanpur were found at the residence of Sri Ram Deo, Durban during the course of a search conducted in the presence of Sri Ram Deo." 8. The witnesses by whose evidence the charge was said to, be supported, were Sri B. B. Verma, Deputy Manager, and Sri M.P. Awasthi, Chargeman of the Factory, in addition to certain documents which included a letter dated 10th Sep. 1970 from Sri B.B. Verma to the General Manager of the Factory. It may be noticed that the plaintiff-respondent was admittedly a Durwan in the Ordnance Parachute Factory, Kanpur. It was proved before the criminal court that the articles said to have been recovered from his possession were stolen at a theft committed in the factory. It cannot be disputed that the recovery of the stolen property from the possession of the plaintiff-respondent, is the lynch pin of the charge against him in the disciplinary proceedings. Mr. It was proved before the criminal court that the articles said to have been recovered from his possession were stolen at a theft committed in the factory. It cannot be disputed that the recovery of the stolen property from the possession of the plaintiff-respondent, is the lynch pin of the charge against him in the disciplinary proceedings. Mr. Tiwari contended that the charge of receiving stolen property or of retaining it dishonestly with the knowledge that it was stolen property, was not the gravamen of the misconduct with which the plaintiff-respondent is charged in the disciplinary proceedings. He being the Durwan of the factory, the mere fact that property stolen from the Factory was found from his residence, is sufficient proof of misconduct against him for purposes of punishing him departmentally, and it cannot, therefore, be said that the charge in the criminal proceedings and that in the disciplinary proceedings against him was the same. I cannot hold that there is no substance in this submission of Mr. Tiwari, but the question which must yet be answered is whether the Union of India can still proceed with the departmental enquiry against the plaintiff-respondent notwithstanding his acquittal by the criminal court on the finding that the recovery of the stolen articles from his possession was not proved. 9. This takes me to the second limb of the submission made by Sri Tiwari, more precisely the question whether the principle of issue estoppel enunciated by the Supreme Court in Manipur Administration v. Bira Singh ( AIR 1965 SC 87 ) could be applied to the facts of the present case, so as to bar an enquiry into the question whether the stolen articles were recovered from the possession of the plaintiff-respondent. Mr. Mr. Tiwari very strongly relied on the decision of a learned single Judge of the Kerala High Court, Hon'ble K. K. Mathew, J. as he then was, in the case of Spadigam v. State of Kerala ((1970) 21 Fac LR 129), wherein after noticing the said decision of the Supreme Court in the case of Manipur Administration v. Bira Singh (supra) and the decision of the Madras High Court in Jerome D. Silva v. Road Transport Authority ( AIR 1952 Mad 853 ) and two other decisions, the learned Judge observed the following (para 7 at pages 132-133): "I do not think that judgment of a criminal Court acquitting an accused on the merits of a case would bar disciplinary proceeding against him on the basis of the same facts, or that the judgment would operate as conclusive evidence in the disciplinary proceedings. The reason for it is not far to seek. A criminal Court requires a high standard of proof for convicting an accused. The case must be proved beyond reasonable doubt. The acquittal of an accused by a criminal Court only means that the case has not been proved against him beyond reasonable doubt. Such a standard of proof is not required for finding a person guilty in a disciplinary proceeding. It would be enough if there is a preponderance of probability of his guilt. Normally, in a civil case, account must be taken of a doubt only if it results in a rational opinion that a fact in issue is less likely than not, whereas in a criminal case account must be taken of a doubt if it results in rational opinion that the contradictory of the issue is more than a remote possibility." And again at page 136 in para 11 : "Therefore, in a disciplinary proceeding, a person can be found guilty of a charge on materials which are inadmissible in evidence in a criminal trial. A judgment of acquittal by a criminal Court is inadmissible in a civil suit based on the same cause of action, except for the very limited purpose mentioned in Section 43 of the Evidence Act, just as a civil Court must independently of the decision of the criminal court investigate facts and come to its own finding, so also, I think, a tribunal conducting a disciplinary proceeding must investigate the facts and come to its own finding and that without being hampered by the strict rules of evidence. Whether or not it is theoretically right to accord a different treatment to a judgment of conviction in a disciplinary proceeding involving the same issue in the light of the proviso (a) to Article 311 (2), is a matter on which I do not wish to express an opinion now. Even as regards a judgment of acquittal as the strict rules of Evidence Act are not applicable to a disciplinary proceeding, the judgment might be a relevant piece of evidence, not because of the judgment has got any peculiar value but because a tribunal conducting a disciplinary proceeding can take into account any material provided it is logically of the facts in issue." 10. Now the principle of issue estoppel as enunciated by the Supreme Court in Manipur Administrations case (supra) is as follows : "Where an issue of fact has been tried by a competent court on a former occasion and a finding has been reached in favour of an accused, such a finding would constitute an estoppel or res judicata against the prosecution not as a bar to the trial and conviction of the accused for a different or distinct offence but as precluding the reception of evidence to disturb that finding of fact when the accused is tried subsequently even for a different offence which might be permitted by the terms of Section 403 (2)." 11. The case before the Supreme Court was one in which the finding, which was sought to be set up as estoppel in a criminal trial was one arrived at in an earlier criminal trial on the question whether the accused had been present in an unlawful assembly, the occurrence involved in both the trials being the same, though for different offences. Having given my anxious consideration to this aspect of the matter, for the reasons given by me above, I am inclined to follow the view of Hon'ble K.K. Mathew, J. in the case of Spadigam v. State of Kerala. (1970) 21 Fac LR 129 (Ker) (supra) 12. The learned counsel for the respondent placed strong reliance on a decision of Hon'ble G. C. Mathur, J. of this Court sitting single, in the case of Bhagwat Charan Saxena v. State of U.P. (1973 Lab IC 1421) (All), and urged that the decision of this Court in Bhagwat Charan Saxenas case follows the observations of the. Supreme Court in the case of R.P Kapur v. Union of India ( AIR 1964 SC 787 ) and the decision of the Madras High Court in the case of Jerome D. Silva v. Regional Transport Authority, South Kanara (AIR .1952 Mad 853) (supra) and in view of this decision of our own High Court it was not open to me to subscribe to the decision of the Kerala High Court in preference to that of, our own Court. 13. Now the decision of Hon'ble G.C. Mathur, J in Bhagwat Charans case is based on the fact that the petitioner before him was honourably acquitted in the criminal trial, and not on any consideration of the applicability of principle of issue estoppel to departmental enquiries. As observed by the Supreme Court in the case of Manipur Administration ( AIR 1965 SC 87 ) (supra), the principle of issue estoppel is different from that underlying Section 403 (2) of the Cr. P.C. governing criminal trials. What the rule of issue estoppel does is not to bar the trial of the accused for a different offence at the subsequent trial, but to preclude the reception of evidence on an issue of fact on which a certain finding was arrived at in the earlier trial, so as to disturb that finding of fact when the accused is tried subsequently for the different offence. As observed by Hon'ble Mathew, J. in the Kerala case, the rules governing the reception of evidence in criminal trials and in departmental enquiries are vitally different. As observed by Hon'ble Mathew, J. in the Kerala case, the rules governing the reception of evidence in criminal trials and in departmental enquiries are vitally different. In the Allahabad case what Hon'ble G.C. Mathur, J. held was that if a person has been honourably acquitted by a criminal court, then departmental enquiry on the basis of the same charges is not competent.; and on examining the findings of the Sessions Judge in the Criminal trial in that case, he came to the conclusion that the petitioner having been honourably acquitted of the charges levelled against him, no disciplinary proceedings could -be taken against him on those very charges, the charges in the criminal case and the departmental enquiry against the petitioner being identical. The basis on which the decision of Hon'ble G.C. Mathur, J. proceeded is entirely different and the case is, therefore, distinguishable. 14. This, however, takes me to a consideration of the question, whether the acquittal of the plaintiff-respondent in the criminal charge against him was honourable, although the charge against him in the criminal trial was of dishonestly receiving stolen property under Section 41l of the I.P.C., while that in the disciplinary proceeding it is of gross misconduct, on account of certain materials belonging to the Ordinance Parachute Factory being found at the residence of the respondent in the course of a search conducted in his presence. I do not do so because the two charges are identical. I have already discussed Mr. Tiwari's contention on this point and held that they are not identical. Yet, the argument having been raised by the learned counsel for the respondent, it has to be met. The learned counsel urged that the decision of the learned Magistrate was on the merits and it was found by the learned Magistrate that the respondent was not guilty of the charge levelled against him, and that being so his acquittal must be held to be honourable. The learned counsel urged that the decision of the learned Magistrate was on the merits and it was found by the learned Magistrate that the respondent was not guilty of the charge levelled against him, and that being so his acquittal must be held to be honourable. Now, the question is what is the precise meaning of the words, "the acquittal is other than honourable", as used by the Supreme Court in its judgment in R.P. Kapurs case ( AIR 1964 SC 787 ) (supra), It is undisputed that where a persons acquittal of a criminal charge levelled against him, is -based on some technical rules governing the trial, or by giving him benefit of doubt, it cannot be easily said that the acquittal is honourable. In order to be honourable it must be based on a finding on the merits of the charge against the accused. But does that mean that even where a charge is found to be not proved, for want of sufficient evidence, the position is any different from the acquittal of an accused by giving him the benefit of doubt. When benefit of doubt is given to the accused the resultant finding is that the charge against him is not proved in accordance with the law governing the trial. The same is the position where the charge is held to be not proved for some other reasons, for, in both the cases the finding is that the charge against the accused is not proved in accordance with the law. In my opinion it is only in a case where a person accused of a charge is acquitted on the finding that the charge against him was disproved or was found to be false or that he was prosecuted without there being any reasonable or probable cause for the same or out of malice, that his acquittal of the charge can be said to be truly honourable. It is, however, impossible to lay down any strait-jacket formula for finding out whether the acquittal of a person in a given case is otherwise than honourable. One has to look to the facts of each case and find out whether the acquittal was honourable or otherwise than honourable. It is, however, impossible to lay down any strait-jacket formula for finding out whether the acquittal of a person in a given case is otherwise than honourable. One has to look to the facts of each case and find out whether the acquittal was honourable or otherwise than honourable. I have already discussed the circumstances attending respondents acquittal in the case and I am of the view that it cannot be said that the acquittal of the accused was honourable in the present case. 15. The result is that this appeal succeeds and is allowed with costs. The judgment and decree of the lower appellate court are set aside and the decree of the trial court dismissing' the suit is restored with costs throughout.