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2010 DIGILAW 3064 (PNJ)

Ram Phal v. State Of Haryana

2010-11-15

RANJIT SINGH

body2010
Judgment Ranjit Singh, J. 1. Not very often, the police official is caught red handed while taking bribe. Rarely, however they are convicted for the offences, so serious in nature. In most of the cases, the police officials continue to remain on the post and, thus, are able to influence or pressurise the witnesses to resile to get clean chit. Should such acquittals weigh overwhelmingly on the. decision in the departmental proceedings? This question arising in this case is for consideration in the background of following facts:- The petitioner initially appointed as Constable, was able to earn promotion as Head Constable in 1989 and then was promoted as A.S.I in the year 2003. While serving as A.S.I, the petitioner was compulsorily retired w.e.f. 14.5.2009 vide an order passed on 13.5.2009. In the present writ petition, he is challenging the order of punishment of stoppage of increments. 2 As per allegations made, the petitioner, while working as Investigating Officer during his stay at Police Post Kherki Daula under Police Station Sadar Gurgaon, had demanded bribe from one Mehar Chand. Said Mehar Chand had made an application to Inspector, S.V.B., Gurgaon, alleging that the petitioner was demanding bribe of Rs. 2,000/- from him. Though the petitioner has not elaborated the background in this regard but same is found reflected in the reply and in the annexures with the petition. 3. One girl, Rajasthani labourer, staying with her mother and working in Village Barah, had allegedly eloped. The mother had reported the matter to police, alleging involvement of one Bittu, a Rajasthani labourer. The village Panchayat had enquired the matter and found the allegation of the woman to be false and baseless. Village Panchayat, thus, authorised Mehar Chand son of Ram Charan to go and inform the police that said Bittu was not involved in the incident. When Mehar Chand approached the petitioner on 18.10.2006 to give this information, the petitioner demanded a sum of Rs.2000/- as a bribe. The matter was reported to the State Vigilance Bureau and the petitioner was caught red handed while accepting bribe. A case FIR No.65 dated 18.11.2006, under Sections 7 and 13 of the Prevention of Corruption Act, was registered at Police Station S.V.B., Gurgaon. For the same misconduct, the Superintendent of Police initiated departmental enquiry against the petitioner for the abovesaid lapse. The enquiry was entrusted to Assistant Commissioner of Police. A case FIR No.65 dated 18.11.2006, under Sections 7 and 13 of the Prevention of Corruption Act, was registered at Police Station S.V.B., Gurgaon. For the same misconduct, the Superintendent of Police initiated departmental enquiry against the petitioner for the abovesaid lapse. The enquiry was entrusted to Assistant Commissioner of Police. The Enquiry Officer had prepared the summary of allegations and supplied the list of witnesses and the documents to the petitioner. The Enquiry Officer had afforded reasonable opportunities to the petitioner while holding enquiry and while recording the statement of five prosecution witnesses. The petitioner had produced two witnesses in his defence. The petitioner was found guilty of the allegation made against him but the action was kept pended due to pendency of the criminal case. 4. The petitioner was acquitted of the criminal charge on 19.9.2008 by giving him benefit of doubt. Thereafter, the departmental enquiry was taken up and on the basis of the finding, a penalty of stoppage of three annual increments with permanent effect was proposed in the show cause notice issued to the petitioner. The petitioner submitted his reply, which was found without merit and taking lenient view of the whole case, punishment of stoppage of two future increments with permanent effect was imposed on 30.11.2008. The appeal filed by the petitioner against this order was rejected. 5. The petitioner has, thus, impugned the punishment imposed on the ground that upon his acquittal of the criminal charge, the petitioner could not be punished departmentally. 6. The petitioner has made mention to the order of his premature retirement but has not made any challenge against the same in the present writ petition. The petitioner has only challenged the order of punishment of stoppage of two annual increments with permanent effect and against the order rejecting his appeal. 7. The punishment, as imposed, is challenged on the ground that it is illegal, unjust and unconstitutional on the ground of being bad due to double jeopardy. The counsel submits that once the petitioner was acquitted of the criminal charge, the initiation of the departmental proceedings against the petitioner under Rule 16.3 of Punjab Police Rules, is illegal and accordingly the punishment as imposed was also illegal. The counsel would also contend that the enquiry on the same charges, of which the petitioner was acquitted, would be barred. 8. The counsel would also contend that the enquiry on the same charges, of which the petitioner was acquitted, would be barred. 8. The submissions, as made by counsel for the petitioner, apparently are not well founded having regard to the facts of the case. On more than one occasions, the Honble Supreme Court has considered this aspect and had noticed the difference between the nature and scope of criminal proceedings and that of the departmental proceedings. The difference between the standard of proof needed in a criminal case and in the departmental proceedings have also been noticed to hold that even after acquittal, the departmental proceedings can be held and punishment imposed. Reference in this regard may be made to South Bengal State Transport Corpn. v. Swapan Kumar Mitra and others, JT 2006 (2) SC 307. This was the precise ground argued before the Supreme Court, which was answered by making reference to the case of Nelson Motis v. Union of India and others? 1992(4) SCC 711. In Nelson Motiss case (supra), three Judges Bench of the Supreme Court has held as under:- "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. Besides, the Tribunal has pointed out that the acts which led to the initiation of the departmental disciplinary proceedings were not exactly the same which were the subject matter of the criminal case." Nelson Motis s case (supra) was fully endorsed by the Honble Supreme Court in the case of Senior Superintendent of Post Offices, Pathamthitta and others v. A.Gopalan, JT 1997 SC 239. It is held that nature and scope of proof in criminal case is very different from that of departmental disciplinary proceedings and order of acquittal in the former can not conclude the departmental proceedings. As is held, the charges in a criminal case have to be proved beyond reasonable doubt while in departmental proceedings, the standard of proof for proving the charge is mere preponderance of probabilities. 9. In NOIDA Entrepreneurs Assn. As is held, the charges in a criminal case have to be proved beyond reasonable doubt while in departmental proceedings, the standard of proof for proving the charge is mere preponderance of probabilities. 9. In NOIDA Entrepreneurs Assn. v. NOIDA & Ors., JT 2007(2) SC 620, the Court took a view that withdrawal of criminal proceedings would not lead to termination of departmental proceedings. It is noticed that the object and purpose of the departmental enquiry and of criminal prosecution is different. As observed, crime is an act of violence of law or omission of public duty whereas the departmental enquiry is to ensure maintenance of discipline and efficiency of public service. Thus, there could be no bar to proceed simultaneously with both. In Mohd. Janimiya v. A.P.State Road Transport Corporation, Secunderabad,5 2006(5) S.L.R. 520, Andhra Pradesh High Court has viewed that mere acquittal in criminal case does not automatically give the: employee a right to be reinstated. Thus, a right to hold departmental proceedings even upon acquittal in a criminal case is well recognized. Similarly, mere acquittal in a criminal case was found not to be valid ground to set-aside termination in State of M.P. And another v. Shiv Narayan Singh Rajoriya and another, 2006 (4) S.C.T 124. This Court also had the occasion to consider this issue in detail in Civil Writ Petition No.3495 of 2010 (Subhash Chand v. State of Haryana and others) decided on 18.8.2010. It is noticed that degree of proof required for a conviction in a criminal case and holding a person guilty in departmental enquiry are altogether different to hold that departmental proceedings could not be stayed. Noticing the distinction between the two proceedings, the Court has observed in Subhash Chander s case (Supra) as under:- "The approach and the objective in the criminal proceedings and disciplinary proceedings are altogether distinct and different. The question requiring determination in disciplinary proceedings is to see if a person is guilty of such conduct as would merit his removal from service or a lesser punishment, as the case may be, whereas in criminal proceedings, the question is if the offences registered against him under Prevention of Corruption Act or Indian Penal Code are established and, if established, what sentence should be imposed upon him. The standard of proof, the mode of enquiry and the rules governing the enquiry and the trial in both cases are entirely distinct and different." 10. Where an employee is a police official, then provision of Rule 16.3 of Punjab Police Rules, as applicable to Haryana, may come into play. This rule provides that:- "When a Police Officer has been tried and acquitted by a criminal court he shall not be punished departmentally on the same charge or on a different charge upon the evidence cited in the criminal case whether actually led or not, unless........." Then certain exceptions are carved out, where departmental punishment can still be awarded. These are as under: - (a) the criminal charge has failed on technical grounds; or (b) in the opinion of the Court or of the Superintendent of Police, the prosecution witnesses have been won over; or (c) the Court has held in its judgment that an offence was actually committed and that suspicion rests upon the police officer concerned; or (d) the evidence cited in the criminal case discloses facts unconnected with the charge before the court which justify departmental proceedings on a different charge; or (e) additional evidence admissible under rule 16.25 (1) in departmental proceedings is available. (6) Departmental proceedings admissible under sub-rule (1) may be instituted against Lower Subordinates by the order of the Superintendent of Police but may be taken against Upper Subordinates only with the sanction of the Deputy Inspector General of Police and a police officer against whom such action is admissible shall not be deemed to have been honourably acquitted for the purpose of Rule 7.3 of the Civil Services Rules (Punjab), Volume I, Part I." 11. The petitioner has not made any averment in the petition that he was tried and acquitted of the criminal charge on the basis of evidence, for which he has been punished departmentally. In order to succeed on this ground, the petitioner was not only required to show that he has been tried and acquitted by a criminal court but that he can not be punished departmentaily on the same charge upon the evidence cited in the criminal case. He has also not pleaded in any manner that his case would not be covered under any of the exceptions that are carved out under Rule 16.3 of the Punjab Police Rules. He has also not pleaded in any manner that his case would not be covered under any of the exceptions that are carved out under Rule 16.3 of the Punjab Police Rules. It is, thus, not clear whether the criminal charge has failed on technical grounds. It is also not clear whether the acquittal in the criminal case was on the ground that the prosecution witnesses had been won over. It is also not clear whether the evidence cited in the criminal case discloses facts unconnected with the charge or not. Thus, the sub- mission made by counsel for the petitioner to impugn the punishment on this ground can not be accepted. It may also need a notice that the petitioner has not impugned the order of his compulsory retirement. Perhaps, the petitioner may be having in his mind to seek quashing of the punishment first and then to challenge the order of compulsory retirement. The setting-aside of order of punishment would have no effect on the order of compulsory retirement, which is not passed by way of punishment but is on the basis of overall record of service, which is taken into account to form a view whether person is fit to be retained beyond completion of particular period of service or age. 12. There is, thus, no merit in the writ petition and the same is accordingly dismissed.