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Madhya Pradesh High Court · body

2003 DIGILAW 1123 (MP)

Hari Shanker Malviya v. High Court of M. P.

2003-09-24

S.P.KHARE

body2003
ORDER : 1. This is a writ petition under Article 226 of the Constitution of India for quashing order dated 14-3-1995 (Annexure A/9) by which the petitioner has been removed from service and for a direction to the respondents to reinstate him. 2. It is not in dispute that the petitioner was working as Stenographer in the office of District and Sessions Judge, Sehore. There were two departmental enquiries against him. One was relating to the incident, which is said to have taken place on 18-11-1991. The charge-sheet in this respect is dated 3-4-1992 (Annexure A/5 and Annexure R/6). The petitioner is said to have forced H.S. Pachlania, Clerk of Court to give the key of telephone to him for a private call from the office telephone. He is further said to have uttered obscene words in the office and assaulted the Clerk of Court with a sandal. The other charge-sheet was dated 12-3-1992. This related to the incident which is said to have taken place on 30-11-1991 at 2.30 P.M. in the precincts of the Court. The petitioner is said to have uttered obscene words and assaulted Harish Navik, Naib Nazir working in the District Court. Additional District Judge was appointed as enquiry officer. He submitted his inquiry reports after conducting inquiry. These are dated 31-8-1994 (Annexure A/4 and Annexure A/8). The enquiry officer found the charges in both the cases as proved. The petitioner was transferred to District Court, Khandwa. Show-cause notices were given to him alongwith copies of the inquiry reports. He submitted his representations. The disciplinary authority who was District and Sessions Judge, Khandwa agreed with the reports of the enquiry officer and imposed the penalty of removal from service on the petitioner. 3. The petitioner's case is that the charges against him were false. According to him he was the candidate in the election to the office of the President of the employees union and the persons named above also bore grudge against him. According to the petitioner, the findings of the enquiry officer are perverse as he has taken into consideration the statements made by the witnesses in the preliminary inquiry. The finding of the disciplinary authority is said to be vitiated because he took into account the judgments of the Court by which the petitioner was convicted in the two cases. According to the petitioner, the findings of the enquiry officer are perverse as he has taken into consideration the statements made by the witnesses in the preliminary inquiry. The finding of the disciplinary authority is said to be vitiated because he took into account the judgments of the Court by which the petitioner was convicted in the two cases. It is pointed out that in the revisions filed before this Court, the petitioner has been acquitted in both the cases and the judgments of the Court below have been set aside. 4. The respondents' case is that the charges framed against the petitioner were duly proved in the departmental enquiry. The findings of the enquiry officer and the disciplinary authority cannot be said to be perverse or unreasonable. These findings were based on appreciation of evidence of the witnesses examined in the departmental enquiry and these findings of fact cannot be disturbed by this Court in a writ petition. It is also argued that acquittal of the petitioner in the two criminal cases does not affect the findings of the enquiry officer and the disciplinary authority. It is stated that the departmental appeals of the petitioner have been dismissed by the High Court and the orders of the disciplinary authority have been confirmed. 5. Learned counsel for both the sides have been heard. The main plank of the arguments of the learned counsel for the petitioner is that he has been ultimately acquitted of the charges in both the cases by a Bench of this Court and, therefore, it is clear that the charges against him were false. It is stated that the departmental enquiries and the criminal cases were based on same set of evidence and, therefore, the findings of the enquiry officer or the disciplinary authority cannot prevail over the findings recorded in the judgments in the two revisions by this Court. On the other hand it is argued that the standard of evaluation of evidence in the departmental enquiry and a criminal case is different and, therefore, acquittal of the petitioner in the criminal cases does not adversely affect the impugned order of removal of the petitioner from service. 6. The inquiry reports (Annexure A/4 and Annexure A/8) have been perused by this Court. Report marked as Annexure A/8 related to the incident which took place on 18-11-1991. 6. The inquiry reports (Annexure A/4 and Annexure A/8) have been perused by this Court. Report marked as Annexure A/8 related to the incident which took place on 18-11-1991. In the departmental enquiry Hari Shanker Pachlania who is said to be the victim of the offence was examined as a witness. He has deposed that the petitioner forced him to give the key of the office telephone to him and on his refusal he assaulted him with a Chappal and also uttered obscene words. He submitted his report Ex.P.1 before the District and Sessions Judge, Sehore on the same date. Madhusudan Pare (PW-3) and Devi Singh (PW-4) also supported the version of Hari Shanker Pachlania. One witness Basant Kumar Tiwari (PW-2) turned hostile. The finding of the enquiry officer based on the evidence of the three witnesses is that the petitioner assaulted Hari Shanker Pachlania, Clerk of Court on his refusal to give the key of the telephone. In the other inquiry also the enquiry officer found the charge against the petitioner as proved. The inquiry report in that respect is Annexure A/4. In that case Harish Kumar Navik, Naib Nazir was examined as a witness. He deposed that he was assaulted by the petitioner though to some extent he is said to have developed a soft corner at the time of the inquiry. His testimony was to some extent supported by another witness Shankerlal Punase (PW-2). The enquiry officer found that the petitioner assaulted Harish Kumar Navik. 7. The settled legal position is that if there is some legal evidence on which the findings can be based, then adequacy or even reliability of that evidence is not a matter of canvassing before the High Court in a writ petition filed under Article 226 of the Constitution. [High Court of Judicature at Bombay vs. S.S. Patil, AIR 2000 SC 22 ]. Same view has been expressed by the Supreme Court in a number of other cases. In R.S. Saini vs. State of Punjab, (1999) 8 SCC 90 also it has been observed that the High Court while exercising writ jurisdiction does not reverse a finding of inquiring authority on the ground that evidence adduced before it is insufficient. If there is some evidence to reasonably support conclusions of inquiring authority, it is not the function of the court to review evidence and to arrive at its own independent finding. If there is some evidence to reasonably support conclusions of inquiring authority, it is not the function of the court to review evidence and to arrive at its own independent finding. The inquiring authority is the sole judge of the fact so long as there is some legal evidence to substantiate its findings. Adequacy or reliability of evidence is not a matter, which can be permitted to be canvassed before the court in writ proceedings. 8. In view of the above legal position this Court cannot sit as an appellate Court over the findings of the enquiry officer and the disciplinary authority. It has been demonstrated in the above preceding paras that there was evidence available before the enquiry officer and also the disciplinary authority on which the finding of guilt of the petitioner could be recorded. It is not a case of “no evidence” or a case of “perverse finding”. There was evidence and it has been properly appreciated. It cannot be said that no reasonable person could reach the conclusion which has been arrived at by the enquiry officer and the disciplinary authority. 9. Learned counsel for the petitioner at the time of hearing of this petition has submitted certified copies of two judgments. One is dated 17-7-2003 in Criminal Revision No. 236 of 1996 of another Bench of this Court. By this judgment the petitioner has been acquitted of the charges under sections 186 and 294 I.P.C. in respect of the incident which is said to have taken place on 18-11-1991 with the Clerk of Court. Though there has been acquittal of the petitioner in this case the judgment shows that there was evidence on record which did not satisfy test of proof beyond reasonable doubt applied in a criminal case. The other judgment is dated 31-7-2003 in Criminal Revision No. 239 of 1996 in which the petitioner has been acquitted by extending “benefit of doubt” to him. 10. It is well settled that while in departmental proceedings, the standard of proof is one of preponderance of probabilities, in a criminal case, the charge has to be proved by the prosecution beyond reasonable doubt. [Cap. M. Paul Anthony vs. Bharat Gold Mines Ltd. AIR 1999 SC 1416 ]. In that case criminal case and the departmental proceedings were based on identical set of facts, namely, raid conducted at the appellant's residence and recovery of incriminating articles therefrom. [Cap. M. Paul Anthony vs. Bharat Gold Mines Ltd. AIR 1999 SC 1416 ]. In that case criminal case and the departmental proceedings were based on identical set of facts, namely, raid conducted at the appellant's residence and recovery of incriminating articles therefrom. The findings recorded by the Enquiry Officer indicate that charges against the appellant were sought to be proved by the police officer and Panch witnesses who had raided the appellant's house and effected the recovery. They were the only witnesses examined by the enquiry officer who by relying upon their statements, came to 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 entire evidence, came to a conclusion that no search was conducted nor was any recovery made from the appellant's residence. The appellant was acquitted by throwing out the whole case of the prosecution. In this situation, therefore, where the appellant is acquitted by a judicial pronouncement with the findings that the “raid and recovery” at his residence were not proved, it would be unjust, unfair and rather oppressive to allow the findings recorded at the ex-parte departmental proceedings to stand. The Supreme Court has further observed that distinction, which is usually drawn between departmental and criminal proceedings on the basis of approach and burden of proof, would not be applicable to the instant case. Thus, the present case is distinguishable on facts from the case, which was before the Supreme Court. The punishment imposed upon the petitioner cannot be said to be disproportionate. 11. It is well settled that the standard of proof required to establish the guilt in a criminal cases is far higher than the standard of proof required to establish the guilt in the departmental proceedings. The acquittal in the criminal case does not confer right upon the employee for his reinstatement into service. In the disciplinary proceedings standard of proof required is that of “preponderance of probability” and not proof beyond reasonable doubt. The law on this point was neatly summed up by Gujarat High Court in Motising vs. S.D. Mehta, AIR 1966 Guj. 233 : “The departmental proceedings and the criminal proceedings are entirely different in nature. They operate in different fields and they have different objectives. The law on this point was neatly summed up by Gujarat High Court in Motising vs. S.D. Mehta, AIR 1966 Guj. 233 : “The departmental proceedings and the criminal proceedings are entirely different in nature. They operate in different fields and they have different objectives. The materials or the evidence in the two proceedings may or may not be the same and in some cases, at least, material or evidence which would be relevant or open for consideration in the departmental proceeding may absolutely be tabooed in the criminal proceeding. The rules relating to the appreciation of evidence in the two enquiries may also be different. The scope of an enquiry in a criminal trial is to determine whether an offence against the law of the land has taken place and if so, to punish the person who has been guilty of that offence. The scope of a departmental enquiry is to determine whether a public servant has committed a misconduct or delinquency and even if the same constitutes, from one point of view, a crime, to consider the question whether the delinquent deserves to be retained in public service or to be reverted or to be reduced in rank or otherwise suitably dealt with for the delinquency concerned. In criminal trial, an incriminating statement made by an accused, in certain circumstances or before certain individuals is totally inadmissible evidence. In a departmental proceeding, the enquiry officer is not bound by any such technical rule. The degree of proof which is necessary to record an order of conviction is different from the degree of proof which is necessary to record the commission of the delinquency. The rule relating to appreciation of evidence in the two proceedings is also not identical.” The Supreme Court has also observed in Depot Manager, APSRTC vs. Mohd. Yousuf Miya, AIR 1997 SC 2232 : “When trial for criminal offence is conducted it should be in accordance with proof of the offence as per the evidence defined under the provisions of the Evidence Act. Converse is the case of departmental enquiry. The enquiry in a departmental proceedings relates to conduct or breach of duty of the delinquent officer to punish him for his misconduct defined under the relevant statutory rules or law. That the strict standard of proof or applicability of the Evidence Act stands excluded is a settled legal position. Converse is the case of departmental enquiry. The enquiry in a departmental proceedings relates to conduct or breach of duty of the delinquent officer to punish him for his misconduct defined under the relevant statutory rules or law. That the strict standard of proof or applicability of the Evidence Act stands excluded is a settled legal position. Again in Senior Superintendent of Post Offices vs. A. Gopalan, (1997) 11 SCC 239 it has been held by the Supreme Court that acquittal in a criminal case on benefit of doubt is no bar to imposition of penalty in departmental proceedings.” 12. In view of the above discussion the petition is dismissed.