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2013 DIGILAW 19 (MAN)

State of Manipur & Anr. v. V. Kama Paite

2013-12-15

L.K.MOHAPATRA, N.KOTISWAR SINGH

body2013
JUDGMENT L.K. Mohapatra (Acting), CJ. -- 1. This writ appeal is directed against the judgment of the learned Single Judge dated 16.4.2008 in W.P(C) No. 93 of 2003. The respondent was the petitioner in the said writ application. 2. The facts leading to the filing of the present litigation are as follows: The respondent was serving as Constable in the Police Department and at the relevant time he was attached to Yairipok PS, in the District of Thoubai. It is the case of the appellant that on 5.10.1985 night at about 8.45 pm the respondent entered into the room of Head constable Rajen and attempted to kill him by firing one round from his service rifle. On this allegation a departmental proceeding was initiated and an FIR was also lodged on allegation of attempting to commit murder. In the departmental proceeding the respondent was found guilty of the charge and was dismissed from service by order of the disciplinary authority. On the basis of the FIR investigation was taken up, charge sheet was filed and the respondent faced trial for commission of offence under Section 307 of the IPC. The learned Addl. Sessions Judge, Manipur West in Sessions Trial No.34 of 1990 found the respondent guilty of the charge and convicted him thereunder. The said order of conviction and sentence was challenged by the respondent in Criminal (Jail) Appeal No. 1 of 1993. The said appeal was allowed on 19.2.2002 and judgment and order of the learned Sessions Judge, Manipur West convicting the respondent for committing offence under Section 307 of the IPC was set aside. After being acquitted of the criminal charge, the respondent filed an appeal before the Dy. I.G. of Police challenging the order of dismissal passed by the disciplinary authority. The Dy. I.G. of Police dismissed the appeal on 20.6.2002 on the ground that the order of dismissal from service passed in pursuance of departmental proceeding cannot be set aside solely on the ground of acquittal in the criminal case. Challenging the order of dismissal from service as well as of the order passed by the appellate authority, namely Dy. IG of Police, the respondent filed a writ petition before this Court out of which this appeal arises praying for setting aside the order of dismissal from service as well as of the order of appellate authority. 3. Challenging the order of dismissal from service as well as of the order passed by the appellate authority, namely Dy. IG of Police, the respondent filed a writ petition before this Court out of which this appeal arises praying for setting aside the order of dismissal from service as well as of the order of appellate authority. 3. The learned Single Judge in the impugned judgment placed reliance on a judgment of the Apex Court in the case of Capt. M. Paul Anthony v. Bharat Gold Mines Ltd. & Anr. reported in AIR 1999 SC 1416 as well as in the case of GM Tank v. State of Gujarat reported in (2006) 5 SCC 446 and held that the charges in both the departmental proceedings and criminal case being the same, same set of witnesses having been examined in both the proceedings, the respondent having been acquitted of the criminal charge cannot be found guilty of the charge framed in the departmental proceeding. With the above finding the learned Single Judge allowed the writ application setting aside the impugned order of dismissal from service as well as the order of the appellate authority. However, by the time the writ application was disposed of, the respondent had already attained the age of superannuation and therefore the learned Single Judge in the impugned judgment only directed for payment of pension in accordance with the Pension Rules for the period of service rendered by the respondent till his dismissal. 4. Challenging the impugned judgment of the learned Single Judge, Mr. H. Raghumani, learned G A. representing the appellants made the following submissions-(i) acquittal in the criminal case has no bearing with the departmental proceeding considering the fact that the standard of proof in both the proceedings are different than each other. In a criminal case the charge is required to be proved beyond all reasonable doubt whereas in a departmental proceeding only preponderance of probability is to be seen and standard of proof in a departmental proceeding not being as that of the criminal case, merely because the respondent was acquitted in the criminal case, the learned Single Judge could not have set aside the order of dismissal passed by the disciplinary authority in pursuance of a departmental proceeding; (ii) the order of dismissal from service was passed on 17.11.1988 whereas the departmental appeal was filed before the Dy. IG of Police in the year, 2002. This long delay of 14 years in filing the departmental appeal was not also considered by the learned Single Judge while allowing the writ petition. 5. Mr. G. Khupchanpau, learned counsel appearing for the respondent submitted that the charge in both the criminal case as well as the departmental proceeding is the same. The same set of witnesses was also examined in both the proceedings. Therefore, the law laid down in the case of Capt. M. Paul Anthony (supra) has full application to the facts of the case and the learned Single Judge rightly relied upon the said judgment while setting aside the order of dismissal from service. It was further submitted by the learned counsel for the respondent that so far as the delay is concerned, the respondent had been convicted by the trial Court for commission of offence under Section 307 of the IPC and filing of an appeal against the order of dismissal from service in the year, 1988 could have brought no result in view of his conviction in the criminal case. Therefore, the respondent had not filed any appeal against the order of dismissal from service and only after he was acquitted of the charge in appeal, the order of dismissal from service was challenged by him before the Dy. IG of Police. This fact had also been taken note of by the learned Single Judge while considering the question of delay. 6. Undisputedly, in relation to the incident that took place on. 5.10.1985 a departmental proceeding was initiated against the respondent and an FIR was also lodged. The charge in both the departmental proceeding as well as in the criminal case was the same. Same sets of witnesses were also examined in both the proceedings. Law is well settled that on the same set of allegation/charge a departmental proceeding as well as criminal proceeding can be initiated and therefore there was no illegality in continuance of both the proceedings in relation to the same charge. 7. The respondent was found guilty of the charge in the departmental proceeding and on the basis of the report of the Enquiry Officer, he was dismissed from service by the disciplinary authority vide order dated 17.11.1988. At that point of time the respondent was facing trial in the Court of the learned Addl. 7. The respondent was found guilty of the charge in the departmental proceeding and on the basis of the report of the Enquiry Officer, he was dismissed from service by the disciplinary authority vide order dated 17.11.1988. At that point of time the respondent was facing trial in the Court of the learned Addl. Sessions Judge, Manipur West for the selfsame charge and therefore filing of an appeal against the order of dismissal passed in pursuance of the departmental proceeding would have served no purpose. The respondent was found, guilty of the charge in the criminal case was convicted and sentenced for commission of offence under Section 307 of the IPC. Therefore, even after conclusion of the trial the respondent having been convicted, an appeal against the order of dismissal from service passed in pursuance of the departmental proceedings would have yielded no result. The respondent was acquitted of the charge only on 19.2.2002 when his appeal was allowed and he was acquitted of the charge and the judgment and order of conviction and sentence was set aside. Therefore, only after being acquitted of the criminal charge, he preferred an appeal before the Dy. IG of Police. This fact has been taken note of by the learned Single Judge in the impugned judgment while considering the delay of 14 years in filing the appeal before the Dy. IG of Police. Since we also find that filing of an appeal against the order of dismissal from service would not have yielded any result because of pendency of the criminal proceeding both in the trial Court as well as in appeal, the learned Single Judge was justified in negating the above contention of the appellant in the impugned judgment. 8. So far as the other ground taken by the learned G.A. relating to departmental proceeding is concerned, we find that the charge in the criminal case was the same as that of the charge in the departmental proceeding. In both the proceedings, same set of witnesses were examined. In the case of Capt. 8. So far as the other ground taken by the learned G.A. relating to departmental proceeding is concerned, we find that the charge in the criminal case was the same as that of the charge in the departmental proceeding. In both the proceedings, same set of witnesses were examined. In the case of Capt. M. Paul Anthony (supra) the apex Court held that there is an exception to the general rule that a Government employee can be punished for misconduct without being influenced by the acquittal of the same person in a criminal proceeding and this little exception may be where departmental proceedings and criminal case are based on the same set of facts and evidence in both the proceedings is common without there being a variance. Nothing has been placed by the learned Govt. Advocate appearing for the appellant to show that there was any variance in evidence in both the proceedings. Therefore, the learned single Judge rightly applied the principles laid down in Capt. M. Paul Anthony (supra). 9. We also examined the evidence adduced both in the criminal as well as departmental proceedings. From the available evidence it appears that on the date of incident there was some quarrel between the respondent and the Head constable who got injured in the incident and after loading the bullet in the service rifle, accidentally the shot was fired, but it never hit the injured Head Constable. The injuries sustained to the Head Constable were minor injuries because of splinter and not because of the bullet. Even if we accept this evidence and agree with the learned Govt. Advocate that such conduct of the respondent also amounts to misconduct, there being no intention to kill and the bullet having been fired accidentally without causing much damage to the injured, the order of dismissal from service is also not called for. If any other punishment is imposed, the respondent would be entitled to pension, hi the impugned judgment the learned Single Judge being aware of this fact did not direct for payment of salary for the period the respondent remained out of service and only directed for payment of pension admissible to him in accordance with relevant Pension Rules for the period of service rendered by him till his dismissal and not till the date he would have continued hi service had he not been dismissed. 10. 10. Considering all these facts, we find no justification to interfere with the impugned judgment. The writ appeal is, accordingly, dismissed. _____________