Javed Shoukat v. State Of Bihar — 1999 DIGILAW 1369 (PAT)

Judgment M.Y.Eqbal, J. 1. In this writ application the petitioner has prayed for quashing the order of his dismissal from service passed by respondent no.4, Senior Superintendent of Police, Ranchi in a departmental proceeding No. 69/94 and also the orders dated 13.5.98 and 27.3.99 passed by respondent nos. 2 and 3, the appellate and revisional authorities respectively who have affirmed the order of punishment of the petitioner in the departmental proceeding. 2. Short facts of the case are that the petitioner was appointed in the post of literate constable at Chaibasa, Police Force, in January, 1992 and was working to the satisfaction of all concerned since 1992. During the relevant time, in the year, 1993, he was assigned with the job of body guard of Additional Chief Judicial Magistrate, Khunti. On 13.10.93 an F.I.R. was lodged at the Gumla police station by one Shailesh Kr. Singh alleging, inter alia, that his sister, namely, Anita Kumari was kidnapped by one Umair Khan, a driver of the bus. In course of investigation it was found that an offence under section 376 of the Penal Code was committed and the involvement of the petitioner also came to light. On completion of the investigation the investigating officer submitted charge sheet against the petitioner also under sections 363, 366A and 376/120B of the Indian Penal Code. On the basis of the charge sheet, cognizance was taken and the case was committed to the court of sessions for trial. 3. It appears that on the basis of the charge sheet submitted in the criminal case, a departmental proceeding was also initiated simultaneously against the petitioner alleging exactly the same charge. A copy of the memo of charge has been annexed as annexure 2 to the writ application from whicn it appears that along with the memo of charge a copy of the F.I.R., investigation report and the statement of the girl recorded under section 164 Cr. P.C. were enclosed. The petitioner filed his show cause and denied the charges levelled against him and took a defence that he was falsely implicated inasmuch as there was no occasion for the petitioner to stay at Gumla during the relevant period as he was posted at Khunti. The petitioner fully participated in the departmental proceeding. The Enquiry Officer recorded evidences of the witnesses and submitted his inquiry report holding that the charges levelled against the petitioner have been proved. The petitioner fully participated in the departmental proceeding. The Enquiry Officer recorded evidences of the witnesses and submitted his inquiry report holding that the charges levelled against the petitioner have been proved. On the basis of the finding of the Enquiry Officer respondent no. 4 passed the impugned order of dismissal of the petitioner from service. The petitioner then filed departmental appeal and then revision before respondent nos. 2 and 3 respectively but both the appeal and the revision were rejected and the order of punishment was upheld. 4. Mrs. Ritu Kumar, learned counsel for the petitioner assailed the impugned order of dismissal from service as being wholly illegal, arbitrary, mala fide and without jurisdiction. Learned counsel submitted that the disciplinary proceeding was initiated on the same and similar charges for which criminal case was initiated against the petitioner. In the said criminal case the petitioner has been acquitted by the court of Sessions with specific finding that the charges levelled against the petitioner have not been proved. Learned counsel submitted that the judgment of acquittal was brought to the notice of the appellate authority and the respondent, although took notice of the judgment, but totally ignored the same and held that the charges of indiscipline and irresponsibility have been proved. Learned counsel lastly submitted that when the petitioner was acquitted in the criminal case after the court of Sessions recorded a conclusive finding that the charges were not proved, then the order of dismissal in a departmental proceeding on the same charges cannot be sustained in law. Learned counsel put heavy reliance on the decision in the case of Cap. M. Paul Anthony vs. Bharat Gold Mines Ltd. and others reported in 1999 (3) S.C.C. 679 . Learned counsel further relied upon the decisions in the case of Dhanabal and anr. vs. State of Tamil Nadu ( AIR 1980 S.C. 628 ) and in the case of Ram Kishan Singh vs. Harmit Kaur and anr. reported in AIR 1972 S.C. 468 for the proposition that the statement recorded under section 164 Cr. P.C. is not the substantive piece of evidence and the same may be used only to corroborate the statement of the witnesses or to contradict them. 5. On the other hand, Mr. reported in AIR 1972 S.C. 468 for the proposition that the statement recorded under section 164 Cr. P.C. is not the substantive piece of evidence and the same may be used only to corroborate the statement of the witnesses or to contradict them. 5. On the other hand, Mr. R.K. Merathia, learned G.P. 2 submitted that the disciplinary proceeding was initiated against the petitioner not only on the basis of the charges which was the subject matter of criminal case but also on the charge of not maintaining discipline in the service and efficiency in the public service. Learned counsel submitted that since the charges in both the departmental proceeding and the criminal case were not exactly the same and similar, the impugned order of punishment is perfectly legal and valid. Learned counsel further placed heavy reliance upon a decision in the case of Depot Manager, A.P.S.T. Corporation vs. Md. Yousuf Mian reported in AIR 1997 S.C. 2232 . 6. Before appreciating the rival contention of the parties, it would be useful to first consider whether the charges in the departmental proceeding and the criminal case were same and similar because that is the sheet-anchor of the case of the petitioner. Admittedly, the petitioner was implicated in a criminal case and after investigation the police submitted charge sheet under sections 363, 366A and 376/120B of the Indian Penal Code. A copy of the memo of charge in the departmental proceeding no. 89/94 has been annexed as annexure 2 to the writ application. From perusal of the memo of charge it appears that the first charge against the petitioner is that he has committed offence under sections 363, 365A, 376/120B of the Penal Code as per Gumla PS case No. 231/93. The second charge is that because of the offence committed by the petitioner the image of the police becomes clouded. It is, therefore, clear that undoubtedly the charges levelled against the petitioner in the departmental proceeding are exactly same and similar to that of the charges for which he was subjected to in the criminal case. 7. The Enquiry Officer, after conclusion of the departmental proceeding, submitted his enquiry report, a copy whereof has been annexed as annexure 5 to the writ application. 7. The Enquiry Officer, after conclusion of the departmental proceeding, submitted his enquiry report, a copy whereof has been annexed as annexure 5 to the writ application. The Enquiry Officer gave his finding on the basis of the evidence of the witnesses examined by the department and the statement of the girl recorded under section 164 Cr. P.C. Howerver, in the inquiry report the Enquiry Officer very specifically held that since the matter is pending before the criminal court, it is not possible and wise to give a decision as to whether the petitioner has committed the offence. However, the Enquiry Officer held that the act of the petitioner will amount to indiscipline in the service. After the Enquiry Officer submitted the report before respondent no. 4, the Disciplinary Authority, the petitioner filed an application and contended that since the matter is pending in the criminal court, final order on the basis of the enquiry report should not be passed. Respondent no. 4 considered the inquiry report and passed an order of punishment by dismissing the petitioner from service. A copy of the order of dismissal dated 14.5.97 has been annexed as annexure 6 to the writ application. 8. Aggrieved by the said order the petitioner filed a departmental appeal before respondent no. 3 on 14.6.97. While the appeal was pending, judgment in the criminal case was pronounced on 10.7.97 and the appellant was acquitted with categorical finding that the prosecution had failed to establish its case. The petitioner immediately, thereafter, communicated the judgment to respondent no. 3, the appellate authority on 25.5.97 and requested that he may be reinstated in service. The appellate authority, although, took notice of the fact that the petitioner was acquitted in the criminal case but he affirmed the order of the dismissal on the ground that preponderance of probabilities is adequate to punish the delinquent. Relevant portion of the appellate order is quoted hereinbelow : "The prosecution failed to prove its case beyond all reasonable doubt led to the acquittal of Javed Shaukat. Therefore, he did not face conviction. However, in departmental proceeding, preponderance of probabilities is adequate to punish the delinquent. His grave misconduct, more so, as the guardian of law, is reprehensible and unbecoming of a public servant. The appeal is, therefore, rejected." 9. Therefore, he did not face conviction. However, in departmental proceeding, preponderance of probabilities is adequate to punish the delinquent. His grave misconduct, more so, as the guardian of law, is reprehensible and unbecoming of a public servant. The appeal is, therefore, rejected." 9. The revisional authority before whom the petitioner preferred revision, has also rejected the revision making the same observation as that of the appellate authority. 10. The only question, therefore, which falls for consideration is as to whether the order of dismissal can be sustained in law in respect of the charges for which the petitioner has been acquitted in a criminal case by the court of Sessions. As noticed above, the charges levelled against the petitioner in the criminal case are exactly the same and similar and based on same set of facts. This fact has not only been admitted by the Enquiry Officer but also the Disciplinary Authority. The Enquiry Officer categorically recorded in his enquiry report that it would not be possible and wise to take a decision when criminal case on the same charge is pending against the petitioner. It is also evident from the records that on the basis of the same set of evidence both the criminal court and the respondents came to a finding. The Enquiry Officer recorded his finding only on the basis of the statement of the victim girl recorded under section 164 Cr. P.C. while the Sessions court recorded its finding on the basis of the evidences of the witnesses examined before him including the victim girl. A copy of the judgment pronounced by the Sessions Judge, Gumla in S.T. No. 1/95 has been annexed as annexure 3 to the writ application, from perusal of the judgment it appears that the victim girl has totally denied the involvement of the accused in the crime by saying that the present accused, namely, the petitioner standing in the dock was not the same person. She further stated that the petitioner never misbehaved with her. The Sessions Judge has further recorded finding that the victim girl very specifically stated that her statement recorded before the police or the Magistrate was under influence of the police. She further stated that the petitioner never misbehaved with her. The Sessions Judge has further recorded finding that the victim girl very specifically stated that her statement recorded before the police or the Magistrate was under influence of the police. In spite of that the Sessions Judge considered other evidences of the prosecution witnesses and came to a specific finding that the petitioner was not named in the F.I.R. and the prosecution failed to prove its case beyond all reasonable doubt. Accordingly, the petitioner was acquitted and discharged from the liabilities of his bail bonds. 11. In the case of Capt. M. Paul Anthony vs. Bharat Gold Mines Ltd. (supra) exactly the same question came for consideration before the Apex Court as to whether the departmental proceedings and proceeding in a criminal court launched on the basis of the same set of facts, can be continued simultaneously. In the case before the Apex Court the delinquent was subjected to departmental inquiry and criminal proceeding simultaneously on the same and similar charges and on the same set of facts. The petitioner of that case was acquitted in the criminal case but inspite of that he was punished in a disciplinary proceeding. The Apex court, after considering a catena of decisions have come to the following conclusion : "The conclusions which are deducible from various decisions of this court referred to above are : (i) Departmental proceedings and proceedings in a criminal case can proceed simultaneously as there is no bar in their being conducted simultaneously, though separately. (ii) If the departmental proceedings and the criminal case are based on identical and similar set of facts and the charge in the criminal case against the delinquent employee is of a grave nature which involves complicated questions of law and fact, it would be desirable to stay the departmental proceedings till the conclusion of the criminal case. (iii) Whether the nature of a charge in a criminal case is grave and whether complicated questions of facts and law are involved in that case, will depend upon the nature of offence, the nature of the case launched against the employee on the basis of evidence and materials collected against him during investigation or as reflected in the charge sheet. (iv) The factors mentioned at (ii) and (iii) above cannot be considered in isolation to stay the departmental proceedings but regard has to be given to the fact that the departmental proceedings cannot be unduly delayed. (v) If the criminal case does not proceed or its disposal is being unduly delayed, the departmental proceedings, even if they were stayed on account of the pendency of the criminal case, can be resumed and proceeded with so as to conclude them at any early date, so that if the employee is found not guilty his honour may be vindicated and in case he is found guilty, the administration may get rid of him at the earliest." 12. Their lordships, therefore, held as under: "There is yet another reason for discarding the, whole of the case of the respondents. As pointed out earlier the criminal case as also the departmental proceeding were based on identical set of facts, namely, the raid conducted at the appellants residence and recovery of incriminating articles therefrom." The findings recorded by the enquiry officer, a copy of which has been placed before us, indicate that the charges framed against the appellant were sought to be proved by police officers and panch witnesses who had raided the house of the appellant and had effected recovery. They were the only witnesses examined by the enquiry officer and the enquiry officer, relying upon their statements, came to the conclusion that the charges were established against the appellant. The same witnesses were examined in the criminal case but the court, on a consideration of the entire evidence, came to the conclusion that no search was conducted nor was any recovery made from the residence of the appellant. The whole case of the prosecution was thrown out and the appellant was acquitted. In this situation, therefore, where the appellant is acquitted by a judicial pronouncement with the finding that the raid and recovery at the residence of the appellant were not proved, it could be unjust, unfair and rather oppressive to allow the findings recorded at the ex parte departmental proceedings to stand." 13. In this situation, therefore, where the appellant is acquitted by a judicial pronouncement with the finding that the raid and recovery at the residence of the appellant were not proved, it could be unjust, unfair and rather oppressive to allow the findings recorded at the ex parte departmental proceedings to stand." 13. Having regard to the fact that the case in hand is fully and squarely covered by the law laid down by the Apex Court in the case referred to above, I am of the opinion that the impugned order of dismissal of the petitioner from service cannot be sustained in law. 14. The decision of the Apex Court in the Depot Managers case (supra) upon which learned G.P. 2 put heavy reliance, does not at all apply in the facts and circumstances of the present case. In that case the question which came for consideration before the Apex Court was whether a departmental enquiry can be stayed when the charge in an enquiry has nothing to do with the offence committed by the delinquent for which a criminal case has been instituted. Moreover, the Depot Managers case (supra) has been considered by the Supreme Court in the subsequent judgment of Capt. M. Pauls case (supra). 15. For the reasons stated above, this writ application is allowed. The impugned order of dismissal of the petitioner from service as contained in annexures 6, 9 and 10 are set aside. The petitioner shall be re-instated in service forthwith and shall also be paid the entire arrears of salary from the date of suspension till his reinstatement within three months from today. However, in the facts and circumstances of the case, there shall be no order as to costs.