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2007 DIGILAW 873 (CAL)

Sitaram Mishra v. UNION OF INDIA

2007-12-14

KALIDAS MUKHERJEE, PRANAB KUMAR CHATTOPADHYAY

body2007
JUDGMENT:- (1). THIS appeal arises out of a writ petition filed on behalf of the appellant herein challenging the order of dismissal from service which was subsequently affirmed by the appellate authority and thereafter, finally affirmed by the revisional authority. (2). IN view of the earlier order of assignment made by the Honble the Chief Justice, the said writ petition was earlier referred before another division Bench of this Honble Court to answer the question whether a delinquent can be dismissed from service when he has been charged under Section 11 of the C.R.P.F. Act, 1949. The said question was ultimately answered by the said Division Bench in an affirmative manner to the following effect: - "yes a delinquent can be dismissed from service when he has been charged under Section 11 of the said Act." (3). THE aforesaid Division Bench after answering the reference issued direction for placing the writ petition before the appropriate Bench for hearing. The writ petition thereafter was taken up for consideration by the learned Single Judge and ultimately disposed of by the order under appeal whereby and whereunder the said learned Single Judge was pleased to dismiss the writ petition. Assailing the aforesaid judgment and order under appeal passed by the learned Single Judge, instant appeal has been preferred by the appellant. (4). FROM the records we find that a departmental enquiry was conducted against the appellant herein on the following charge: -"that, No. 710170325 HC Sita Ram Mishra, while serving as a Head Constable (GD) in b COY. 41 Bn., C.R.P.F., committed an offence of grave misconduct and remissness in his capacity as a member of the Force under Section 11 (1) of the C.R.P.F. Act, 1949, punishable under Rule 27 (a) of C.R.P.F. Rules, 1955, in that he, on 18.2.98 at about 0945 hours, started cleaning barrel of his loaded 9mm Carbine (No. 15356032, Butt No. 13) in mens barrack of B/41 bn. , C. R. P. F. , carelessly without removing its magazine on his bed. In this process of cleaning, 08 rounds got fired automatically and one of these bullets hit No. 901310271 Ct. Sailesh Kumar Tewari who was present there in the barrack No. 901310271 Ct. Sailesh kumar Tewari subsequently succumbed to his injuries at about 1020 hours same day in Civil Hospital, Jirania, Agartala. " (5). In this process of cleaning, 08 rounds got fired automatically and one of these bullets hit No. 901310271 Ct. Sailesh Kumar Tewari who was present there in the barrack No. 901310271 Ct. Sailesh kumar Tewari subsequently succumbed to his injuries at about 1020 hours same day in Civil Hospital, Jirania, Agartala. " (5). ON 11th April, 1999, the Disciplinary Authority on finalisation of the departmental enquiry imposed the penalty of dismissal from service upon the appellant herein. The said order of dismissal passed by the disciplinary Authority was ultimately, affirmed by the appellate authority by the order dated 9th July, 1999. The revision petition filed thereafter by the appellant herein challenging the aforesaid order of the disciplinary authority as confirmed by the appellate authority was also rejected by the revisional authority, namely, the Inspector General. (6). MR. Mujibar Rahman, learned Counsel representing the appellant submits that the charge levelled against the appellant herein was not established before the Enquiry Officer as no evidence was adduced during the enquiry proceeding in order to prove the charge levelled against the said appellant. Mr. Rahman further submits that the Enquiry Officer should not have come to the conclusion that the charge framed against the said appellant has been proved beyond doubt when there is no evidence to hold the appellant guilty of the charge framed against him. It has also been submitted by the learned Counsel of the appellant that the Disciplinary authority did not take note of the aforesaid fact that there was no evidence to hold the appellant guilty for the charge framed against him and mentioned in the charge-sheet. . (7). THE learned Counsel of the appellant further submits that the criminal case initiated against the said appellant on the selfsame charge was ultimately disposed of by the order of acquittal. (8). MR. Rahman submits that both the departmental proceedings and the criminal proceedings were initiated against the appellant herein on identical set of facts and also on the basis of the same set of witnesses. (8). MR. Rahman submits that both the departmental proceedings and the criminal proceedings were initiated against the appellant herein on identical set of facts and also on the basis of the same set of witnesses. The learned Counsel of the appellant urged before this Court that the acquittal of the said appellant in the criminal case should have been taken into consideration as relevant factor by the respondent authorities and the order of dismissal passed by the Disciplinary Authority and subsequently affirmed by the appellate authority should have been set aside and quashed by the Departmental Revisional Authority upon taking note of the aforesaid order of acquittal of the appellant from the criminal case. The learned Counsel of the appellant also submits that the learned single Judge failed to appreciate the aforesaid exoneration of the appellant from the criminal case by the learned Judge of the Criminal Court. According to the learned Counsel of the appellant, no additional evidence was ever adduced in the departmental proceeding to prove the charge levelled against the said appellant. The learned Counsel of the appellant further submits that the learned Single Judge failed to take note of the most relevant factor that there is no evidence to prove the charge levelled against the appellant herein. Referring to the judgment of the Criminal court, learned Counsel of the appellant submits that the negligent act of the appellant herein could not be established before the Criminal Court. (9). GOING thorough the judgment and order passed by the learned judge of the Criminal Court we find that the said learned Judge made the following specific observations: - ". . . . . . . . . . No witness said in their evidence that present accused sitaram Mishra was handling his fire arms in a rash or negligent manner which was the cause of the death of the victim S. K. Tewari. . . . . . . . . . . . . . . . . . . . . rash or negligent handling of fire arms by the accused is not said by any witness as I find in the case record. . . . . . . . . . . . . . . . . I have taken into account the totality of evidence-on-record. . . . . . . . . . . . . rash or negligent handling of fire arms by the accused is not said by any witness as I find in the case record. . . . . . . . . . . . . . . . . I have taken into account the totality of evidence-on-record. On the basis of evidence-on-record, I find that direct nexus between the death of S. K. Tewari and the rash or negligent act of accused Sitaram mishra could not be established by the prosecution by producing direct or circumstantial evidence on this point. . . . . . . . . . . . . . . . . . . . " (10). ON behalf of the appellant it has also been urged that no punishment of dismissal can be imposed in a proceeding initiated under section 11 (1) of the C.R.P.F. Act, 1949 as the minor punishments have been specified under the aforesaid sub-section (1) of Section 11 of the said C.R.P.F. Act, 1949. The aforesaid question, however, cannot be decided by us in the present proceeding as the question referred before the earlier Division Bench to that effect has been answered in an affirmative manner. The judgment of the earlier Division Bench has been reported in 2005 (1) Callj (Cal) 53. (11). THE Honble Supreme Court also in the case of Union of India and ors. v. Gulam Mohd. Bhat, reported in AIR 2005 SC 4289 has clearly held: -"8. . . . . . . . . . . . . . In any event, Section 11 (1) refers to Rules made under the Act under which action can be taken. Rule 27 is part of rules made under the Act. Rule 27 clearly permits removal by the competent authority. . . . . . . . . . . . . . . . . . " (12). IN the aforesaid circumstances, we a/e of the opinion that there is no scope to decide the aforesaid issue once again in the present proceeding. Rule 27 clearly permits removal by the competent authority. . . . . . . . . . . . . . . . . . " (12). IN the aforesaid circumstances, we a/e of the opinion that there is no scope to decide the aforesaid issue once again in the present proceeding. The power of dismissal under Section 11 (1) of the C.R.P.F. Act, 1949 and Rule 27 of the C.R.P.F. Rules, 1955 was upheld in the earlier decision of the Division Bench of this Honble Court as well as the aforesaid judgment passed by the Honble Supreme Court in the case of Golam mohd. Bhat (supra) but proper exercise of the said power involves other considerations which we are to examine in the present case. (13). MRS. Quiraishi, learned Counsel representing the respondents, however, submits that mere acquittal in the criminal proceeding cannot debar the Disciplinary Authority to impose punishment upon conducting the disciplinary proceeding in accordance with law as in the departmental proceeding, standard of proof is different than what is required in a criminal case. Mrs. Quiraishi further submits that the charge levelled against the appellant herein is serious and grave in nature. The said serious charge, according to Mrs. Quiraishi, has been established in the enquiry proceeding and, therefore, the disciplinary authority has rightly imposed punishment considering the seriousness of the said charge which has been subsequently affirmed by the appellate authority and the revisional authority. The learned Counsel of the respondents specifically urged before this Court that there is hardly any scope of judicial review in the present case since the Disciplinary authority imposed the order of punishment upon considering all the relevant papers and documents Including the report filed by the Enquiry Officer after conducting the enquiry proceeding and upon observing the principles of natural justice. (14). GOING through the evidence-on-record we do not find any evidence in support of the charge. On the contrary, the evidence adduced by different witnesses clearly disproved the charge levelled against the appellant. In the charge-sheet it has been specifically alleged that the appellant herein started cleaning barrel of his loaded 9 MM Carbine carelessly without removing its magazine on his bed. It was also mentioned in the said charge-sheet that in the process of cleaning, 08 rounds got fired automatically and one of these bullets hit Sailesh Kr. Tewari. In the charge-sheet it has been specifically alleged that the appellant herein started cleaning barrel of his loaded 9 MM Carbine carelessly without removing its magazine on his bed. It was also mentioned in the said charge-sheet that in the process of cleaning, 08 rounds got fired automatically and one of these bullets hit Sailesh Kr. Tewari. The relevant portion from the charge-sheet is quoted hereunder: - "that he, on 18.2.98 at about 0945 hours, started cleaning barrel of his loaded 9mm Carbine (No. 15356032, Butt No. 13) in mens barrack of B/41 Bn., C.R.P.F., carelessly without removing its magazineon his bed. In this process of cleaning, 08 rounds got fired automatically and one of these bullets hit No. 901310271 ct. Sailesh Kumar Tewari who was present there in the barrack no. 901310271 Ct. . . . . . . . ,. . . . . . . . . " (15). FROM the evidence-on-record we find that the P.W. 5, Daya shankar Singh made a specific statement before the Enquiry Officer to the following effect: - ". . . . . . . . . . . . When we entered the barrack I saw that no. 710170325 HC Sita Ram Mishra was cleaning his 9 MM Carbine after disassembling (KHULI HUI) the carbine. . . . . . . . . . . . . . . " (16). P.W. 5 Daya Shankar Singh in answer to a question deposed before the said Enquiry Officer as hereunder: "q. No. 3: Whether 9 MM Carbine of HC. Sita Ram Mishra was in assembled (JURI HUI) or it was dis-assembled (KHULI HUI)? Ans. Sir, Carbine of HC Sita Ram Mishra was dis-assembled (KHULI HUI THI ). " (17). THE other witness, P.W. 6, Kali Charan also made the following statement in course of enquiry: ". . . . . . . . . . . . . . Sita Ram Mishra staying in the same barrack was cleaning his Carbine on his bed. The carbine magazine were kept aside of the Carbine on his bed. . . . . . . . . . . . . . . . . . . " (18). IN course of cross-examination, said Kali Charan (P. W. 6) in answer to a question specifically deposed as under: - " Q. No. 8: Whether 9 MM Carbire of HC. . . . . . . . . . . . . . . . . . . " (18). IN course of cross-examination, said Kali Charan (P. W. 6) in answer to a question specifically deposed as under: - " Q. No. 8: Whether 9 MM Carbire of HC. Sita Ram Mishra was in assembled (JURI HUI) or it was dis-assembled (KHULI HUI ). " Ans.: 9 MM Carbine was dis-assembled (KHULI HUI THI)? (19). GOING through the recorded defence statement of the appellant herein, we find that the appellant while giving brief details of the firing incident stated as hereunder: -"when I was about to go outside to see my luggage I fitted the magazine of my Carbine and JAB MAINE MAGAZINE PAR HATH mara TO CARBINE SE FIRE HONE LAGA. " (20). THE aforesaid evidence-on-record clearly demolishes the charge levelled against the appellant herein as mentioned in the charge-sheet. Mrs. Quiraishi, learned Counsel of the respondents also could not refer to any evidence recorded in the enquiry proceeding in order to establish the charge mentioned in the charge-sheet issued to the appellant herein. (21). THE disciplinary authority while imposing the penalty of dismissal from service observed as hereunder: - ". . . . . . . . . . . . . . . . . . . . On the same day i.e. 18.2.98 at about 0945 hours after completing task given to No. 5 Platoon, No. 710170326 HC Sita ram Mishra started cleaning his 9 MM Carbine on his bed inside the barrack meant for No. 5 Platoon when No. 710170325 HC Sita ram Mishra was cleaning diddling with his loaded 9 MM Carbine; it went off and fired eight rounds automatically resulting which one of the bullet hit No. 901310271 CT Sailesh Kumar Tewari. . . . . . . . . . . . . . . . " We do not find any evidence in support of the aforesaid finding. (22). . . . . . . . . . . . . . . . " We do not find any evidence in support of the aforesaid finding. (22). THE Disciplinary authority while coming to the conclusion that the appellant herein has committed a serious misconduct and the charge mentioned in the Article of Charge has been proved beyond shadow of doubt did not consider the aforesaid evidence on record and as a matter of fact, no evidence has been referred to and relied upon by the said disciplinary authority in order to arrive at the aforesaid conclusion that the charge levelled against the appellant and mentioned in the charge-sheet has been proved. (23). THE appellate authority also while making an objective assessment of the whole issue observed that the appellant was fully responsible for firing from his Carbine which ultimately, killed Sailesh kumar Tewari on 18th February, 1998 due to the casual handling of weapon and thus, the charge framed against the said appellant has been ppved beyond any shadow of doubt. The relevant portion from the order passed by the appellate authority where the aforesaid finding has been recorded is quoted hereunder: - "(h) The appellant was fully responsible for such firing from his carbine which ultimately killed No. 901310271 Ct. S. K. Tewari on 18.2.98. due to his casual handling of weapon. The charge framed against him has been proved beyond any shadow of doubt. After carefully considering the pros and cons of the case, the disciplinary authority imposed the punishment of dismissal from service upon him. " (24). ADMITTEDLY, casual handling of weapon was not the charge framed against the appellant herein and, therefore, the appellate authority committed serious error upon holding that the charge framed against the appellant has been proved. (25). FROM the records we find that the appellant herein made a detailed representation before the revisional authority, namely, the inspector General of Police, C.R.P.F., Eastern Sector, wherein various irregularities committed by the Enquiry Officer and the Disciplinary authority as well as the appellate authority were mentioned specifically. The appellant also mentioned in the said representation submitted before the revisional authority that upon going through the evidence and other available records, learned Judge of the Criminal Court acquitted the said appellant from the charges of the criminal case punishable under Section 304 (A) of the Indian Penal Code. The appellant also mentioned in the said representation submitted before the revisional authority that upon going through the evidence and other available records, learned Judge of the Criminal Court acquitted the said appellant from the charges of the criminal case punishable under Section 304 (A) of the Indian Penal Code. The revisional authority by the order dated 6th January, 2006 held that the charge framed against the said appellant was conclusively proved on the basis of the evidence on record. In the concluding paragraph, most surprisingly, the said Inspector General recorded his finding as hereunder: - "the evidence-on-record proved that the petitioner in utter violation of orders and instructions relating to cleaning of weapons was cleaning his weapons in the having barrack and due to firing from the weapon being so handled by the petitioner a precious life was lost. . . . . . . . . . . . . . " (26). WE, however, find that the aforesaid charge was never mentioned in the charge-sheet and, therefore, the departmental proceeding was not conducted to establish the aforesaid charge regarding violation of the orders and instructions relating to cleaning of weapons by the appellant herein. The revisional authority, in our opinion, while coming to the conclusion that the charge framed against the appellant was conclusively proved on the basis of the evidence-on-record clearly referred to a charge which was, admittedly, not mentioned in the charge-sheet on the basis whereof the departmental proceeding was initiated against the said appellant. (27). THE aforesaid irregularities and illegalities committed by the enquiry Officer, disciplinary authority, appellate authority and ultimately the revisional authority should not have been ignored by the learned Single judge while deciding the writ petition finally. The revisional authority could not have ignored the order of acquittal passed by the Criminal Court in connection with the criminal case initiated on the basis of same set of facts and evidence. The Supreme Court in the case of Capt. M. Paul anthony v. Bharat Gold Mines Ltd. and Anr. , reported in AIR 1999 SC 1416 specifically held in Paragraph-13 as hereunder: - "13. . . . . . . . . . . . . While in the departmental proceedings the standard of proof is one of preponderance of the probabilities, in a criminal case, the charge has to be proved by the prosecution beyond reasonable doubts. , reported in AIR 1999 SC 1416 specifically held in Paragraph-13 as hereunder: - "13. . . . . . . . . . . . . While in the departmental proceedings the standard of proof is one of preponderance of the probabilities, in a criminal case, the charge has to be proved by the prosecution beyond reasonable doubts. The little exception may be where the departmental proceedings and the criminal case are based on the same set of facts and the evidence in both the proceedings is common without there being a variance. . . . . . . . . . . . . . . . . . . . . " (28). IN the present case, departmental proceedings and the criminal case are based on the same set of facts and the evidence adduced by the witnesses in both the proceedings are common without there being any variance. Therefore, this case comes within the exception as mentioned in the aforesaid decision of the Supreme Court. We are also of the opinion that the facts and evidence-on-record in the departmental proceedings as well as in the criminal case are same and identical and, therefore, the findings in the departmental proceedings cannot be held to be legal and valid after acquittal of the appellant from the criminal case. The difference between the departmental and criminal proceedings on the basis of standard of proof would not be applicable in the present case in view of the fact that the evidence, witnesses and circumstances are virtually similar and identical. (29). IN the case of G. M. Tank v. State of Gujarat and Anr., reported in air 2006 SC 2129 , Supreme Court has specifically observed: -"31. The judgments relied on by the learned Counsel appearing for the respondents are distinguishable on facts and on law. In this case, the departmental proceedings and the criminal case are based on identical and similar set of facts and the charge in a departmental case against the appellant and the charge before the Criminal Court are one and the same. It is true that the nature of charge in the departmental proceedings and in the criminal case is grave. In this case, the departmental proceedings and the criminal case are based on identical and similar set of facts and the charge in a departmental case against the appellant and the charge before the Criminal Court are one and the same. It is true that the nature of charge in the departmental proceedings and in the criminal case is grave. The nature of the case launched against the appellant on the basis of evidence and material collected against him during enquiry and investigation and as reflected in the charge-sheet, factors mentioned are one and the same. In other words, charges, evidence, witnesses and circumstances are one and the same. In the present case, criminal and departmental proceedings have already noticed or granted on the same set of facts namely, raid conducted at the appellants residence, recovery of articles therefrom. The investigating Officer, Mr. V. B. Raval and other departmental witnesses were the only witnesses examined by the Enquiry Officer who by relying upon their statement came to the conclusion that the charges were established against the appellant. The same witnesses were examined in the criminal case and the Criminal Court on the examination came to the conclusion that the prosecution has not proved the guilt alleged against the appellant beyond any reasonable doubt and acquitted the appellant by his judicial pronouncement with the finding that the charge has not been proved. It is also to be noticed the judicial pronouncement was made after a regular trial and on hot contest. Under these circumstances, it would be unjust and unfair and rather oppressive to allow the findings recorded in the departmental proceedings to stand. 32. In our opinion, such facts and evidence in the department as well as criminal proceedings were the same without there being any iota of difference, the appellant should succeed. The distinction which is usually proved between the departmental and criminal proceedings on the basis of the approach and burden of proof would not be applicable in the instant case. Though finding recorded in the domestic enquiry was found to be valid by the Courts below, when there was an honourable acquittal of the employee during the pendency of the proceedings challenging the dismissal, the same requires to be taken note of and the decision in Paul Anthonys case (supra) will apply. We, therefore, hold that the appeal filed by the appellant deserves to be allowed. We, therefore, hold that the appeal filed by the appellant deserves to be allowed. " (30). THE appellant herein was not only acquitted by the Criminal Court from the criminal case initiated on identical and similar set of facts but also going through the evidence-on-record in connection with the disciplinary proceedings, we do not find any evidence to prove the charge framed against the appellant herein. Unless the charge framed against the appellant is conclusively proved on the basis of the evidence-on-record, no punishment can be imposed by the disciplinary authority. (31). THE findings of the Enquiry Officer and the decision of the disciplinary authority as subsequently affirmed by the appellate authority and the revisional authority are unfortunately not on the basis of the evidence adduced by the witnesses during the enquiry proceeding. The decision of the disciplinary authority as subsequently affirmed by the appellate authority and the revisional authority is clearly vitiated by the considerations extraneous to the evidence and, therefore, cannot be sustained in the eye of law, (32). IN the aforesaid circumstances, we are constrained to hold that the punishment awarded to the appellant herein in connection with the disciplinary proceedings conducted by the disciplinary authority and subsequently affirmed by the appellate authority as well as the revisionai authority cannot be sustained in the eye of law as the charge framed against the appellant herein was not conclusively proved in absence of any evidence in support of the charge. We therefore, set aside the order of punishment passed by the disciplinary authority as well as the orders subsequently passed by the appellate authority and the revisional authority. (33). SINCE the appellant herein had already retired from service we deem it proper to set aside the order of dismissal and direct the respondent authorities herein to treat the appellant in service all through till attaining the age of super-annuation and pay full back wages after adjusting the subsistence allowance paid to the said appellant during the suspension period. (34). NEEDLESS to mention that the appellant will be entitled to receive pension and other retiral benefits. The respondent authorities are directed to take appropriate steps for releasing the aforesaid pension and other retiral benefits to the appellant herein including the arrear dues towards the back wages in terms of this order at an early date but positively within a period of six weeks from date. (35). The respondent authorities are directed to take appropriate steps for releasing the aforesaid pension and other retiral benefits to the appellant herein including the arrear dues towards the back wages in terms of this order at an early date but positively within a period of six weeks from date. (35). FOR the aforementioned reasons, we set aside the judgment and order under appeal passed by the learned Single Judge and allow this appeal without awarding any costs.