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Madhya Pradesh High Court · body

2004 DIGILAW 514 (MP)

Mushiram v. State of M. P.

2004-06-30

DIPAK MISRA

body2004
Judgment ( 1. ) THE petitioner, a Constable, was an accused in Criminal Case No. 1563/92 for an offence punishable under Section 377 of tfre Indian Penal Code. The Chief Judicial Magistrate, Rewa held that the charges have not been proved from any quarter by the prosecution and accordingly by judgment dated 13-2-97 recorded acquittal in his favour. After the petitioner was acquitted a charge-sheet dated 25-2-97 was served on him on three charges, namely, that he had committed unnatural offence with a child by which he had made himself liable for misconduct under sub-regulation No. 2 of Regulation 64 of the M. P. Police Regulations; that he refused to receive the order of suspension which was passed against him which tantamount to violation 64 of Regulation; and that he had remained absent from 4-llr92 to. 25-4-9,3, i. e. , almost for a period of 172 days without permission. ( 2. ) THE petitioner filed a show cause denying the charges and positively pleaded that he had been acquitted in respect of Charge No. 1 and there was no reason to proceed against him in respect of the same. The Disciplinary Authority being unsatisfied with the explanation offered by the petitioner appointed an Inquiry Officer who after conducting inquiry found that all charges have been proved. The disciplinary authority taking note of the charges, finding recorded by the Inquiry Officer and the charge having been proved, thought that the order of dismissal would sub serve the cause of justice. After following due procedure he passed the order of dismissal vide Annexure R-6. The petitioner being aggrieved preferred an appeal to the appellate authority who vide Annexure A-1 affirmed the order of punishment imposed by the disciplinary authority. ( 3. ) ASSAILING the aforesaid order it is submitted by Mr. Prashant Bhadoriya, learned Counsel for the petitioner that the petitioner has been acquitted for the selfsame offence and keeping in view the same he could not have been dealt with in the departmental proceeding. It is also urged by him that the evidence recorded in the criminal proceeding being common in both the cases, after acquittal in the criminal proceeding, the disciplinary proceeding could not have been initiated. To bolster the aforesaid submission he has placed reliance on a two-Judge Bench decision of the Apex Court rendered in the case of Capt. It is also urged by him that the evidence recorded in the criminal proceeding being common in both the cases, after acquittal in the criminal proceeding, the disciplinary proceeding could not have been initiated. To bolster the aforesaid submission he has placed reliance on a two-Judge Bench decision of the Apex Court rendered in the case of Capt. M. Paul Anthony v. Bharat Gold Mines Ltd. and Anr. , AIR 1999 SC 1416 . It is also contended by him that if Regulation 241 of the M. P. Police Regulation is carefully perused it is clear that the same comes in aid of the petitioner inasmuch as nothing has been established in the trial to proceed against him and, therefore, departmental proceeding in respect of selfsame charge is unwarranted. In addition, it is also submitted by him that other two charges which have been instituted against him have been deliberately done after long lapse of time and by no stretch of imagination the same, even if proved, can be a factor for dismissal of the petitioner from service and in any case it is not in consonance with the concept of proportionality. ( 4. ) MR. Namdeo, learned Counsel for the State placed reliance on Regulation 64 (4) and contended that the petitioner had committed indisci-pline and, therefore, he was liable to be punished and the action of the Department can not be found fault with. ( 5. ) I have carefully perused the charges levelled against the petitioner. Three charges which find place in the order of the appellate authority contained in Annexure A-l when translated in English read as under : " (1) On 2-11-92 at 10. 00 p. m. at his residence attempted to commit an unnatural act on Manoj Kumar son of Constable 122 Shivmurat Sen by taking out his clothes and thereby displayed an action becoming of his status and violated the conditions of Police Regulation 64 (3 ). (2) Violated Police Regulation 64 (4) by not acknowledging thet receiving of suspension order and not depositing the kit. (3) From 4-11-92 to 25-4-93 total 172 days remained unauthorized absent and thereby displayed an act of grave negligence and indiscipline. " ( 6. (2) Violated Police Regulation 64 (4) by not acknowledging thet receiving of suspension order and not depositing the kit. (3) From 4-11-92 to 25-4-93 total 172 days remained unauthorized absent and thereby displayed an act of grave negligence and indiscipline. " ( 6. ) ON a scrutiny of the charge No. 1 there can be no trace of doubt that the similar was the charge on criminal proceeding as is perceivable from the judgment of Criminal Court which has been brought on record as Annexure A-5. In these case of Capt. M. Paul Anthony (supra) the Apex Court in Paragraphs 34 and 35 has held as under : "34. 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 proceedings 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 Inquiry 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 Inquiry Officer and the Inquiry 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 would be unjust, unfair and rather oppressive to allow the findings recorded at the exparte departmental proceedings, to stand. 35. Since the facts and the evidence in both the proceedings, namely, the departmental proceedings and the criminal case were the same without there being any iota of difference, the distinction, which is usually drawn as between the departmental proceedings and the criminal case on the basis of approach and burden of proof, would not be applicable to the instant case. Since the facts and the evidence in both the proceedings, namely, the departmental proceedings and the criminal case were the same without there being any iota of difference, the distinction, which is usually drawn as between the departmental proceedings and the criminal case on the basis of approach and burden of proof, would not be applicable to the instant case. " ( 7. ) IN my considered opinion if the charge No. 1 in the departmental proceeding is read in juxtaposition with the charge No. 1 criminal proceeding it would be crystal clear that charge No. 1 is similar to the charge levelled against the petitioner in criminal case and the evidence is the same. At this juncture, I may profitably refer to Regulation No. 241 which reads as under: "241. Cases of acquittal.- When a police officer has been tried and acquitted by a Criminal Court, he must as a rule be reinstated. He may not be punished departmentally when the offence for which he was tried constitutes the sole ground of punishment. If, however the acquittal, whether in the Court of original jurisdiction or of appeal, was based on technical grounds, or if the facts established at the trial show that his retention in Government service is undesirable, the Superintendent may take departmental cognizance of his conduct, after obtaining the sanction of the Inspector General. " ( 8. ) ON a perusal of the aforesaid provision it is observable that some rider or qualifier has been attached to the same. Assuming such qualifier is acceptable in law the present factual scenario frescoes a different picture since the order of acquittal is not based on technical ground and nothing has been established to show the retention of the petitioner as Government servant is undesirable. On the contrary, as recorded categorically, the prosecution has miserably failed to prove the case against the petitioner. There is finding recorded that no credible evidence has been adduced to substantiate the allegations made against the accused. In view of the aforesaid there can be no scintilla of doubt that Regulation 241 is not attracted. Judging from both the angles the Charge No. 1 could not have been charged in the departmental proceeding. ( 9. There is finding recorded that no credible evidence has been adduced to substantiate the allegations made against the accused. In view of the aforesaid there can be no scintilla of doubt that Regulation 241 is not attracted. Judging from both the angles the Charge No. 1 could not have been charged in the departmental proceeding. ( 9. ) ONCE I have held that charge No. 1 is similar to that of the charge No. 1 of criminal proceeding the petitioner could not have been proceeded in respect of charge No. 1. What remains are charge Nos. 2 and 3. The submission of learned Counsel for the petitioner is that the petitioner could not have proceeded earlier but the respondents should not have waited till 1997 to proceed against the petitioner on the base that he had mis- conducted himself by being indiscipline inasmuch he did not accept the order of suspension and did not deposit the kit and further remained absent from duties for the period 4-11-92 to 25-4-93. The aforesaid submission of the learned Counsel for the petitioner has some force as far as charge No. 2 is concerned. As far as charge No. 3 which relates to unauthorized absence is concerned has a different spectrum. In any case, in my considered opinion, even if the two charges assumed to have been proved, it can not result or ensue in the order of dismissal, as that would be totally disproportionate. Any delinquency has to have the concept of commensuration. Otherwise also the doctrine of proportionality is attracted in a case of this nature. The petitioner was acquitted on 13-2-97. It does not require Solomons wisdom to say that the department should have waited to serve the charge-sheet and the same should have been served after the petitioner was acquitted in the criminal case. While saying so, I may not be understood that the criminal proceeding and departmental proceeding can not be simultaneous. But definitely the department could not have proceeded in respect of charge No. 1. Once the charge No. 1 is wiped off or get vaporized from the zone of consideration, other charges by themselves would not entail in dismissal, removal or termination. To elaborate, the charge Nos. 2 and 3 being treated to have been proved would not enable the department to bring severance or extinction of service. Any other punishment may be imposed. Once the charge No. 1 is wiped off or get vaporized from the zone of consideration, other charges by themselves would not entail in dismissal, removal or termination. To elaborate, the charge Nos. 2 and 3 being treated to have been proved would not enable the department to bring severance or extinction of service. Any other punishment may be imposed. Accordingly, the order of termination contained in Annexure R-6 and the affirmation thereof vide Annexure A-l stand quashed. The petitioner be reinstated in service. However, I am not inclined to grant backwages. I have directed reinstatement as I am of the considered view that any other punishment would meet the ends of justice and that would be as per the doctrine of proportionality. It is open to the respondents to treat the charge Nos. 2 and 3 to have been proved and to proceed to impose punishment in accordance with law. The same shall be done after the petitioner is reinstated. ( 10. ) THE writ petition is allowed to the extent indicates above. There shall be no order as to costs.