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2003 DIGILAW 294 (RAJ)

Radhey Shyam v. State of Rajasthan

2003-02-24

N.N.MATHUR, SUNIL KUMAR GARG

body2003
JUDGMENT 1. - Heard Mr. J.L. Purohit, learned counsel for the appellant. 2. The contextual facts depict that the appellant Radhey Shyam, Assistant Sub-Inspector of Police, was prosecuted for offences under sections 366 & 376 IPC . It is alleged that he made a demand of Rs. one thousand from one Madhu for recovery of her missing daughter Mst. Prem. The complainant Madhu, instead of making payment, made a complaint to the Superintendent of Police, Bhilwara, who directed the S.H.O., Kotri to investigate the matter. It is further alleged that appellant created obstruction and did not allow the investigation to proceed. Only after receipt of amount of Rs. one thousand from Madhu, he instructed co-accused Bheru to produce Mst. Prem. During investigation, Mst. Prem disclosed that she was kidnapped and raped by the appellant Radhey Shyam and Bheru. A case was registered for the offences under sections 376 & 366. IPC against the appellant and Bheru. He stood acquitted of the charges by judgment of the Additional sessions Judge, Bhilwara dated 7.1( 1986. Adverting to departmental action, he was transferred from Police Lin( Bhilwara to Gangapur by order dated 8.6.1985. He was put under suspension by order dated 24.7 1985. He did not report at Police Lines, Gangapur and, as such. a department enquiry u/R. 16 of the CCA Rules was instituted on 8.8.1985. He was charged for wilful absence for the period 8.6.1985 to 8.8.1985. The Enquiry Officer found the charges proved. The Superintendent of Police, Shilwara by order dated 31.12.1985, inflicted the punishment of removal from service. The appeal against the said order was rejected by the D.I.G., Ajmer vide his order dated 26.2.1986. The appellant filed a review petition before His Excellency the Governor, which came to be allowed by the order dated 30.6.1990. The order of removal was found bad in law as the to Superintendent of Police. Bhilwara was not the appointing authority of the appellant, ASI. The matter was remitted to the DIG Ajmer who, after hearing the appellant, by order dated 11.2.1992 again passed an order of removal against the appellant. On appeal, the IGP by order dated 6.6.1992 reduced the penalty from removal to stoppage of one grade increment without cumulative effect. The period of absence 8.6.1985 to 23.7.1985 was directed to be treated as leave period. It is significant to notice that the D.I.G., Ajmer while passing the order dated 11.2.1992. On appeal, the IGP by order dated 6.6.1992 reduced the penalty from removal to stoppage of one grade increment without cumulative effect. The period of absence 8.6.1985 to 23.7.1985 was directed to be treated as leave period. It is significant to notice that the D.I.G., Ajmer while passing the order dated 11.2.1992. noticing the fact that the appellant was acquitted of the offences under sections 376 & 366, IPC by the order of the learned Additional Sessions Judge, Bhilwara, directed that in case, no State appeal has been filed challenging the order of acquittal the appellant should be charge sheeted u/R. 16 of the CCA Rules on the same allegations. Consequently, a departmental enquiry has been instituted against the appellant. A charge sheet has also been served upon him. The appellant challenged the said initiation of the departmental proceedings and the charge sheet by way of filing a writ petition before this Court u/Art. 226 of the Constitution of India. The learned Single Judge dismissed the writ petition by the impugned order, hence this appeal. 3. It is contended by Mr. Purohit, learned counsel for the appellant that the appellant can not be subjected to face a departmental enquiry on the same allegations and on the same facts, on which he has been acquitted by a competent court. It is also submitted that there is a delay in initiation of the departmental enquiry inasmuch as the incident is of the year 1985 and he has been acquitted of the charges in the year 1986. Learned counsel in support of his contention has relied upon a judgment of the Hon'ble Supreme Court in Capt. Paulanthony v. Bharat Gold Mines Ltd., (1999) 3 SCC 679 . 4. On careful consideration of the matter, we are of the view that the Special Appeal does not deserve to be admitted. It is well settled proposition that proceedings in a criminal case and the departmental proceedings operate in distinct and different jurisdictional areas. In a departmental enquiry, a charge relating to a misconduct is being investigated not only to punish the guilty but to enforce the discipline in service so as to keep the administrative machinery unsullied by getting rid of bad elements. Thus, the standard of proof required in such a departmental enquiry is different from a criminal case. In a departmental enquiry, a charge relating to a misconduct is being investigated not only to punish the guilty but to enforce the discipline in service so as to keep the administrative machinery unsullied by getting rid of bad elements. Thus, the standard of proof required in such a departmental enquiry is different from a criminal case. In a criminal case, the charge has to be proved by the prosecution beyond reasonable doubt but in case of departmental enquiry, the standard of proof is one of preponderance of the probabilities. 5. In Nelson Motis v. Union of India , the Apex Court has held that the disciplinary proceedings can be legally continued even when a criminal is so acquitted in a criminal case, as the nature and proof required in a criminal case are different from those in the departmental proceedings. The observations of the Apex Court are extracted as follows The nature and scope of a criminal case are very different from those of a departmental disciplinary proceeding and an order of acquittal, therefore, cannot conclude the departmental proceeding." 6. Capt. M. Paulanthony's, case (supra) cited by the learned counsel does advance the case of the appellant. In the said case, criminal court acquitted the accused having found the entire prosecution case not worth belief. The Departmental Enquiry was found to have been conducted ex parte. The delinquent was not even paid subsistence allowance during the disciplinary enquiry. The following observations deserve to be noticed : "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 would be unjust, unfair and rather oppressive to allow the findings recorded at the ex parte departmental proceedings to stand". 7. We have also read the judgment of the learned Additional Sessions Judge, Bhilwara acquitting the appellant of the offences under sections 366 & 376 IPC b'. his order dated 7.10.1986. The finding is not rejecting the entire prosecution case, but to the effect that it was not possible to hold that the prosecutrix was not a consenting party to the alleged act. his order dated 7.10.1986. The finding is not rejecting the entire prosecution case, but to the effect that it was not possible to hold that the prosecutrix was not a consenting party to the alleged act. This finding may be good for acquittal of charge for the offences Under Sections 366 & 376, IPC but the conduct of the appellant, if found proved in a departmental enquiry, may constitute misconduct. The Department will have to consider, it a person of such character should be allowed to continue in police service? As far as the delay is concerned, the departmental enquiry could not have been initiated against the appellant on the charges on which the impugned enquiry is initiated now, for the reason that he stood removed from service by the order of the Superintendent of Police, Bhilwara, dated 31.12.1985. The Departmental Enquiry could be initiated only when he re-entered in the service, on removal being set aside by the order of the Inspector General of Police dated 6.6.1992. Thus, there is no delay in initiating the impugned enquiry. Intact, the Inspector General of Police while substituting the punishment of removal by stoppage of one grade increment without cumulative effect ought to have taken into consideration the totality of the circumstances. 8. Thus, we, find no merit in the Special Appeal and the same is dismissed in limine.Special Appeal Dismissed. *******