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Madhya Pradesh High Court · body

2013 DIGILAW 78 (MP)

State of M. P. v. Jandel Singh

2013-01-15

G.D.SAXENA, S.K.GANGELE

body2013
JUDGMENT Gangele, J. 1.The appellant/State has filed this appeal against the order dt. 7.2.2011 passed by the learned Single Judge in W.P. No. 2681/2007 (S). 2. The respondent No. 1 was subjected to a departmental enquiry for two charges that he had taken Rs. 28,000/- from Mahesh Kumar Richhariya, Rs. 10,000/- from Hajari Lal Jatav and Rs. 10,000/- from Smt. Pushpalata Mishra with an oblique motive, hence, he had violated provisions of M.P. Civil Services (Conduct) Rules, 1965. The respondent No. 1 denied the charges. Thereafter, a departmental enquiry was conducted. In the departmental enquiry, the charges were found proved by the Enquiry Officer. A show cause notice was issued to the respondent No. 1. Respondent No. 1 denied the charges and pleaded that he had been acquitted from the charges. Thereafter, the authority i.e. Superintendent of Police passed an order of dismissal of respondent No. 1 from service. Against the aforesaid order, an appeal was filed, that has also been dismissed. During the enquiry proceedings, Enquiry Officer examined the witnesses. The witnesses clearly deposed that respondent No. 1 had received illegal gratification with a promise to get certain persons employed in the police. The Enquiry Officer found the charges proved. A proper opportunity of hearing was provided to the respondent No. 1. 3.The learned Single Judge has allowed the writ petition on the ground that the respondent No. 1 was prosecuted before the JMFC, Gwalior in Criminal Case No. 394/98 in regard to charge under section 420 of IPC. The charge against the respondent No. 1 was that he had obtained bribe of Rs. 10,000/- for procuring service to one Smt. Pushpalata Mishra in the Police Department. Similarly, respondent No. 1 was also tried for another charge under section 420 of IPC and section 8/9 of Prevention of Corruption Act by Special Judge, Morena in Special Case No. 8/97. He was also tried in one more case by the JMFC Gwalior in Criminal Case No. 838/98 for the charge under section 420 of IPC on the ground that he had obtained Rs. 10,000/- from Hajari Lal Jatav in regard to procuring employment in the police department. In all the three cases, respondent No. 1 has been acquitted. He was also tried in one more case by the JMFC Gwalior in Criminal Case No. 838/98 for the charge under section 420 of IPC on the ground that he had obtained Rs. 10,000/- from Hajari Lal Jatav in regard to procuring employment in the police department. In all the three cases, respondent No. 1 has been acquitted. The learned Single Judge has held that since for the same charges, respondent No. 1 has been acquitted by the Criminal Court, hence, he is eligible for reinstatement in view of the Police Regulation 241. The learned Single Judge also relied on the judgment of this Court in the case of H.R. Kaurav Vs. State of M.P. and others reported in 20009(I) MPWN 85=ILR (2009) M.P. 1233. 4. Police Regulation 241 is 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 undersirable, the Superintendent, may take departmental cognizance of his conduct, after obtaining the sanction of the Inspector-General.” 5. In the present case, respondent No. 1 was tried in three criminal cases involving three offences and he has been acquitted from the Criminal Court, however, in the departmental enquiry, the charges were found proved and he has also produced the judgments of the criminal Courts and the respondent No. 1 has been given the benefit of doubt on the ground that the prosecution witnesses did not support the case. However, in the departmental enquiry, the witnesses specifically deposed that the respondent No. 1 had taken illegal gratification. 6. Hon’ble Supreme Court in the case of State of Bank of Hyderabad and another Vs. P.Kata Rao reported in (2008) 15 SCC 657 has held as under in regard to holding departmental enquiry or continuing the departmental enquiry if an employee is acquitted by the criminal Court:- “18. There cannot be any doubt whatsoever that the jurisdiction of superior Courts in interfering with a finding of fact arrived at by the enquiry officer is limited. P.Kata Rao reported in (2008) 15 SCC 657 has held as under in regard to holding departmental enquiry or continuing the departmental enquiry if an employee is acquitted by the criminal Court:- “18. There cannot be any doubt whatsoever that the jurisdiction of superior Courts in interfering with a finding of fact arrived at by the enquiry officer is limited. The High Court, it is trite, would also ordinarily not interfere with the quantum of punishment. There cannot, furthermore, be any doubt or dispute that only because the delinquent employee who was also facing a criminal charge stands acquitted, the same, by itself, would not debar the disciplinary authority in initiating a fresh departmentatl proceeding and/or where the departmental proceedings had already been initiated, to continue therewith. 19. We are unmindful of different principles laid down by this Court from time to time. The approach that the Court’s jurisdiction is unlimited although had not found favour with some Benches, the applicability of the doctrine of proportionality, however, had not been deviated from. 20. The legal principle enunciated to the effect that on the same set of facts the delinquent shall not be proceeded in a departmental proceedings and he in a criminal case simultaneously, has, however, been deviated from. The dicta of this Court in Capt. M. Paul Anthony v. Bharat Gold Mines Ltd. however, remains unshaken although the applicability thereof had been found to be dependent on the fact situation obtaining in each case.” 7. Hon’ble Supreme Court further in the case of Divisional Controller, Gujarat SRTC Vs. Kadarbhai J.Suthar reported in (2007) 10 SCC 561 has held as under in regard to the effect of acquittal in a criminal case on the departmental proceedings:- “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.” 8. Hon’ble Supreme Court, further in the case of Uttaranchal Road Transport Corpn. and others vs. Mansaram Nainwal reported in (2006) 6 SCC 366 has affirmed the decision of the Hon’ble Supreme Court in Union of India v. Bihari Lal Sidhana (1997) 4 SCC 385 , where the Hon’ble Supreme Court has held as under :- “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 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. 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 publice money. Reinstatement would be a charter for him to indulge with impunity in misappropriation of public money.” 9. From the aforesaid decisions of the Hon’ble Supreme Court, the principle of law is clear that the competent authority is not precluded to conduct a departmental enquiry against the employee if he has been acquitted in criminal trial. The employee can be punished in the departmental enquiry, even though he is acquitted in a criminal trial after given benefit of doubt because the proof of guilt in criminal trial and departmental enquiry is quite different. 10. In regard to Police Regulation 241, it is clearly mentioned in the regulation that if the acquittal of a police officer is based on technical ground or if the facts established at the trial show that his retention in Government service is undersirable, the Superintendent may take departmental cognizance of his conduct. 10. In regard to Police Regulation 241, it is clearly mentioned in the regulation that if the acquittal of a police officer is based on technical ground or if the facts established at the trial show that his retention in Government service is undersirable, the Superintendent may take departmental cognizance of his conduct. In the present case, after perusal of the judgment dated 1.9.1998 passed in Special Case No. 8/97 it is clear the respondent No. 1 was given the benefit of doubt. Similarly, in another judgment, which is passed in Sessions Trial No. 838/98 on 28.1.2002, the respondent No.1 has been acquitted from the charge because there is lack of evidence. In the third case i.e. Sessions Trial No. 394/98 the respondent No. 1 was acquitted vide judgment dated 17.3.1999 after giving benefit of doubt, but in the aforesaid two cases, the witnesses had deposed against the respondent No. 1. Hence, it is clear that the respondent No. 1 was acquitted in criminal cases on account of particular facts and circumstances of the case to the effect that the prosecution failed to prove the guilt beyond reasonable doubt. In one case, there was no evidence. However, in the departmental enquiry, the standard of proof is quite different because in the departmental enquiry, it is not necessary to prove the guilt beyond reasonable doubt. 11. In such circumstaces, in our opinion, the respondent No. 1 could not get the benefit in the departmental enquiry to the effect that he was acquitted in the criminal cases. In Police Regulation 241, it is clearly mentioned that if the acquittal of a Police Officer is based on technical ground, then the Superintendent may take departmental cognizance of his conduct. In the present case, the charges are serious in nature. From three persons, the respondent No. 1 had taken money with a promise that he would secure employment of some persons in the police. It is a charge of corruption. The respondent No. 1 was member of police force. In such circumstances, the misconduct of the respondent No. 1 has been found proved in the departmental enquiry. The findings of the departmental enquiry are based on the basis of the evidence of the departmental witnesses namely; Bheem Singh Rajput, Balbeer Singh Yadav, Ranjan Pathak, Mahesh Kumar Richhariya, Hajarilal, Smt. Pushpalata Mishra, Arvind Singh Tomar, Ramavtar Sharma, Santlal, Gopal, in total ten in numbers. The findings of the departmental enquiry are based on the basis of the evidence of the departmental witnesses namely; Bheem Singh Rajput, Balbeer Singh Yadav, Ranjan Pathak, Mahesh Kumar Richhariya, Hajarilal, Smt. Pushpalata Mishra, Arvind Singh Tomar, Ramavtar Sharma, Santlal, Gopal, in total ten in numbers. A proper opportunity was given to the respondent No. 1 to cross examine the witnesses. Thereafter, a show cause notice was also issued. He submitted his reply. The Enquiry Officer has appreciated the evidence in detail and found the charges proved. In such circumstances, in our opinion, the learned Single Judge has committed an error of law in setting aside the order of dismissal merely on the ground that the respondent No. 1 was acquitted in criminal cases and he is entitled to the benefit of Police Regulation 241. The judgment reported in 2009 (I) MPWN 85 =I.L.R. (2009) M.P. 1233 (H.R. Kaurav Vs. State of M.P. and ors) is distinguishable on facts as mentioned earlier. 12. Consequently, the appeal filed by the appellant is hereby allowed. The impugned order passed by the learned Single Judge is hereby set aside. No order as to costs.