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2009 DIGILAW 858 (MP)

SUNIL PILLAI v. STATE OF M. P.

2009-07-24

SANJAY YADAV

body2009
Judgment Sanjay Yadav, J. ( 1. ) The petitioner, a constable in Police Department, here in this writ petition under Article 226 of the Constitution of India, calls in question the initiation of a departmental enquiry in pursuance to charge sheet dated 21-9-2008, on the ground that the self same charges are being tried by the Criminal Court. Reliance is placed on the judgment rendered in the case of G. M. Tank vs. State of Gujarat and another : AIR 2006 S.C. 2129 . ( 2. ) The facts briefly are that the petitioner while posted at P. S. Ranjhi has been subjected to a criminal case vide Crime No. 510/08 for an offence punishable under section 3/4 of the Public Gambling (Madhya Pradesh) Act, 1976 vide F.I.R. Dated 27/8/ 0 8, in respect of incident which took place on 27/8/08 when the petitioner was apprehended gambling at public place. A challan in the Court of Chief Judicial Magistrate, Jabalpur, was filed on 28/8/08. For the same act the petitioner has been subjected to a departmental enquiry when on 21-9-08 a charge sheet was issued to him. ( 3. ) It is this charge sheet and further proceeding, which the petitioner seeks quashment of on the anvil that both cannot go together. The petitioner has relied upon the judgment in G. M. Tank vs. State of Gujarat and another (supra) to bring home his submissions. ( 4. ) In G. B. Tank (supra), the facts as referred to in paragraphs 2 and 5 reveal the appellant therein was found in possession of property, movable and immovable, disproportionate to his known sources of income. Whereas in a departmental enquiry he was found guilty and was dismissed from service. However, in a criminal trial under section 5(l)(e) read with Section 5(2) of the Prevention of Corruption Act, 1977, he was not found guilty. Their Lordships while extending the benefit of the acquittal in a criminal trial were please to observe : "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 evidence, 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. In our opinion, such facts and evidence in the department as well as criminal proceedings were the same without there being any iota of evidence, 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." (emphasis supplied) ( 5. ) The facts of each case differs as was observed by their Lordships in the case of Divisional Controller, Gujarat SRTC v. Kadarbhai J. Sthar (2007) 10 5. C.C. 561: "5. The orders of both the learned Single Judge and the Division Bench suffer from several infirmities. First and foremost, mere acquittal in a criminal case does not have the effect of nullifying the decision taken in the departmental proceedings. They operate in different areas of considerations. This position was recently highlighted by a three-Judge Bench of this Court in NOIDA Enterpreneurs Assn. v. NOIDA." ( 6. ) In Uttaranchal Road Transport Corporation v. P (2006) 6 SCC366 it was observed by their lordship : "10. The position in law relating to acquittal in a criminal case, its effect on departmental proceedings and reinstatement in service has been dealt with by this Court in Union of India v. Bihari Lal Sidhana, it was held in para 5 as follows (SCCpp.387-88) "5. It is true that the respondent was acquitted by" the criminal court but acquittal does not automatically give him the right to be reinstated into the service. It would still be open to the competent authority to take decision whether the delinquent government servant can be taken into service or disciplinary action should be taken under the Central Civil Services (Classification, Control and Appeal) Rules or under the Temporary Service Rules. Admittedly, the respondent had been working as a temporary government servant before he was kept under suspension. The termination order indicated the factum that he, by then, was under suspension. Admittedly, the respondent had been working as a temporary government servant before he was kept under suspension. The termination order indicated the factum that he, by then, was under suspension. It is only a way of describing him as being under suspension when the order came to be passed but that does not constitute any stigma. Mere acquittal of government employee does not automatically entitle the government servant to reinstatement. As stated earlier, it would be open to the appropriate competent authority to take a decision whether the enquiry into the conduct is required to be done before directing reinstatement or appropriate action should be taken as per law, if otherwise, available. Since the respondent is only a temporary government servant, the power being available under Rule 5 (1) of the Rules, It is always open to the competent authority to invoke the said power and terminate the services of the employee instead of conducting the enquiry or to continue in service a government servant accused of defalcation of public money. Reinstatement would be a charter for him to indulge with impunity in misappropriation of public money." 11. The ratio of Anthony case can be called out from para 22 of the judgment which reads as follows : (SCCp.691) "22. 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 involve complicated questions of law and fact, it would be desirable to stay the departmental proceedings till the conclusion of the criminal case. (hi) Whether the nature of a charge in,a criminal case is grave and whether complicated questions of fact 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 material 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. (iv) The factors mentioned at (ii) and (iii) above cannot be considered in isolation to stay the departmental. proceedings but due 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 an early date, so that if the employee is found not guilty his honour may be indicated and in case he is found guilty, the administration may get rid of him at the earliest." ( 7. ) In State of Orissa and others v. Mohd. llliyas : (2006) 1 SCC275 it has been held by their lordships : "12. Where the allegation is of cheating or deceiving, whether the alleged act is willful or not depends upon the circumstances of the case concerned and there cannot be any strait jacket formula. The High Court unfortunately did not discuss the factual aspects and by merely placing reliance on an earlier decision of the Court held that prerequisite conditions were absent. Reliance on the decision without looking into the factual background of the case before it, is clearly impermissible. A decision is a precedent on its own facts. Each case presents its own features. It is not everything said by a Judge while giving judgment that constitutes a precedent. The only thing in a Judges decision binding a party is the principle upon which the case is decided and for this reason it is important to analyse a decision and isolate from it the ratio decidendi. According to the well-settled theory of precedents, every decision contains three basic postulates: (I) findings of material facts, direct and inferential. An inferential finding of facts is the inference which the Judge draws from the direct, or perceptible facts; (ii) statements of the principles of law applicable to the legal problems disclosed by the facts; and (iii) judgment based on the combined effect of the above. A decision is an authority for what it actually decides. What is of the essence in a decision is its ratio and not every observation found therein nor what logically flows from the various observations made in the judgment. A decision is an authority for what it actually decides. What is of the essence in a decision is its ratio and not every observation found therein nor what logically flows from the various observations made in the judgment. The enunciation of the reason or principle on which a question before a court has been decided is alone binding as a precedent. (See State of Orissa v. Sudhansu Sekhar Misra and Union of India v. Dhanwanti Devi.) A case is a precedent and binding for what it explicitly decides and no more. The words used by Judges in their judgments are not to be read as if they are words in an Act of Parliament. In Quinn v. Leathern the Earl of Halsbury, L.C. observed that every judgment must be read as applicable to the particular facts proved or assumed to be proved, since the generality of the expressions which are found there are not intended to be the exposition of the whole law but governed and qualified by the particular facts of the case in which such expressions are found and a case is only an authority for what it actually decides." ( 8. ) In South Bengal State Transport Corporation v. Sapan Kumar Mitra and others : (2006) 2 SCC584, it is observed by their lordships : "9. We have heard the learned counsel for the parties and also examined the relevant records of this case. Although the Division Bench had not categorically said that the departmental proceeding could not be continued and punishment could not be imposed on the delinquent employee when the criminal case ended in acquittal, even then the learned counsel for the respondents sought to argue this ground before us. In our view, this ground is no longer res integra. In Nelson Motis v. Union of India a three-Judge Bench of this Court observed at SCCp.714, para 5, as follows : "5. So far the first point is concerned, namely, whether the disciplinary proceedings could have been continued in the face of the acquittal of the appellant in the criminal case, the plea has no substance whatsoever and does not merit a detailed consideration. 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. 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. Besides, the Tribunal has pointed out that the acts which led to the initiation of the departmental disciplinary proceeding were not exactly the same which were the subject-matter of the criminal case." (emphasis supplied) 10. Similarly in Senior Supdt. Of Post Offices v. A. Gopalan the view expressed in Nelson Motis v. Union of India was fully endorsed by this Court and similarly it was held that the nature and scope of proof in a criminal case is very different from that of a departmental disciplinary proceeding and the order of acquittal in the former cannot conclude the departmental proceedings. This Court has further held that in a criminal case charge has to be proved by proof beyond reasonable doubt while in departmental proceeding the standard of proof for proving the charge is mere preponderance of probabilities. Such being the position of law now settled by various decisions of this Court, two of which have already been referred to earlier, we need not deal in detail with the question whether acquittal in a criminal case will lead to holding that the departmental proceedings should also be discontinued. That being the position, an order of removal from service emanating from a departmental proceeding can very well be passed even after acquittal of the delinquent employee in a criminal case. In any case, the learned Single Judge as well as the Division Bench did not base their decisions relying on the proposition that after acquittal in the criminal case, departmental proceedings could not. be continued and the order of removal could not be passed." ( 9. ) In N. Selvaraj v. Kumbakonam City Union Bank Ltd. and another : (2006) 9 SCC172; while observing that acquittal in criminal proceedings does not -that continuation of departmental enquiry thereafter would be justified were please to held : "6. It is contended by the learned counsel for the appellant that since the criminal court acquitted him, continuity of departmental enquiry is not justified and he should be directed to be paid all the back wages on the basis of the acquittal recorded by the criminal court. We are not at all convinced by this contention. It is contended by the learned counsel for the appellant that since the criminal court acquitted him, continuity of departmental enquiry is not justified and he should be directed to be paid all the back wages on the basis of the acquittal recorded by the criminal court. We are not at all convinced by this contention. By now, it is well-settled principle of taw that the standard of proof between the criminal trial and the departmental proceedings is quite different. In criminal trial the standard of proof is proof beyond all reasonable doubt, whereas in the departmental proceedings it is preponderance of probability which is taken into consideration. It is also to be noted that in continuation of the earlier order passed by this Court as referred to above, the suspension of the appellant is continuing subject to the final decision that may be made on the basis of a second enquiry. It is now well- settled principle of law that pay and allowances including back wages will depend on the outcome of the second enquiry to be decided by the disciplinary authority in accordance with law relevant financial rules. (See Managing Director. ECIL v. B. Karunakar.)" ( 10. ) In West Bokaro Colliery (TISCO Ltd.) v. Ram Pramesh Singh, (2008) 3 SCC729, their lordship while taking note that the standard of proof in domestic enquiry and the criminal proceedings were please to hold : "17. After going through the order of the Industrial Tribunal, we of the opinion that the Tribunal has interfered with the findings recorded by the domestic tribunal as if it was the Appellate Tribunal. There was evidence present on record regarding indecent, riotous and disorderly behaviour of the respondent towards his superiors. The Management witnesses who were present at the scene of occurrence have unequivocally deposed about the misbehavour of the respondent towards his superiors. Their evidence has been discarded by the Tribunal by observing that in the absence of independent evidence, the statements of the workmen who were present at the scene of occurrence could not be believed. The Industrial Tribunal fell in error in discarding the evidence produced by the Management only because the independent witnesses were not produced." ( 11. ) In the case at hand the charge levelled against the petitioner is . The Industrial Tribunal fell in error in discarding the evidence produced by the Management only because the independent witnesses were not produced." ( 11. ) In the case at hand the charge levelled against the petitioner is . Whereas in a criminal case the petitioner is being prosecuted for an offence under section 3 and 4 of Public Gambling (Madhya Pradesh) Act, 1867, as applicable to Madhya Pradesh, which stipulates : "3. Penalty for owning or keeping, or having charge of, a gaming-house.-Whoever, being the owner or occupier, or having the use, of any house-room, tent, enclosure, space, vehicle, vessel or place situate within the limits to which this Act applies, opens, keeps or uses the same as a common gaming-house; and whoever, being the owner or occupier of any such house, room, tent, enclosure, space, vehicle, vessel or place as aforesaid knowingly or wilfully permits the same to be opened, occupied, used or kept by any other person as a common gaming-house; and whoever, has the care or management of, or in any manner assists in conducting, the business or any house, room, tent, enclosure, space, vehicle, vessel or place as aforesaid, opened, occupied, used or kept for the purpose aforesaid; and whoever advances or furnishes money for the purpose of gaming with person frequenting such house, room, tent, enclosure, vehicles, vessel or place; shall be punished - (a) for a first offence with imprisonment which may extend to six months or with fine which may extend to one thousand rupees; (b) for a second offence with imprisonment which may extend to one year and, in the absence of special reasons to the contrary to be mentioned in the judgment of the Court, shall not be less than fourteen days either with or without fine which may extend to two thousand rupees; and for a third or subsequent offence with imprisonment which may extend to one year and, in the absence of special reasons to the contrary to be mentioned in the judgment of the Court, shall not be less than four months together with fine which may extend to two thousand rupees. 4. 4. Penalty for being found in gaming-house.- Whoever is found in any such house, tents, rooms, enclosure, space, vehicle, vessel or place playing or gaming with cards, dice, counters, money or other instruments of gaming, or is found there present for the purpose of gaming, whether playing for any money, wager, stake or otherwise, shall be liable to a fine not exceeding five hundred rupees or to imprisonment of either description, as defined in the Indian Penal Code (45 of 1860), for any term not exceeding four months, and any person found in any common gaming-house during any gaming or playing therein, shall be presumed, until the contrary be proved to have been there for the purpose of gaming. 4-A. Punishment for printing or publishing digits, figures, signs, symbols or pictures relating to Worli Matka or other form of gaming*- (1) whoever prints or publishes in any manner whatsoever any digits or figures or signs or symblos or pictures or combination of any two or more of. such digits or figures or signs or symbols or pictures relating to Worli Matka or any other form of gaming under any heading whatsoever or by adopting any form or device, or disseminates or attempts to disseminates or abets dissemination of information relating to such digits or figures or signs or symbols or pictures or combination of any two or more of them shall be punishable with imprisonment which may extend to six months and with fine which may extend to one thousand rupees. (2) Where any person is accused of an offence under sub,- section(l), any digits or figures or signs or symbols or pictures or combinations of any two or more of such digits or figures or signs or symbols or pictures in respect of which the offence Is alleged to have been committed shall be presumed to relate to Worli Matka gaming or some other form of gaming unless the contrary is proved by the accused." ( 12. ) In the present case departmental enquiry into the conduct, which is unbecoming of a police official, is being held which is different than the charges in criminal case. ( 13. ) Therefore taking into consideration the entirety of facts and the law as laid down by the Apex Court, this Court do not perceive any illegality in the initiation of departmental enquiry. ( 14. ( 13. ) Therefore taking into consideration the entirety of facts and the law as laid down by the Apex Court, this Court do not perceive any illegality in the initiation of departmental enquiry. ( 14. ) In the result petition fails and is hereby dismissed in limine. Petition dismissed.