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2014 DIGILAW 241 (ALL)

NANHEY LAL SHARMA v. STATE OF U. P.

2014-01-21

RAJES KUMAR

body2014
JUDGMENT Hon’ble Rajes Kumar, J.—Heard Sri R.K. Upadhyaya, learned counsel for the petitioner and Ms. Suman Sirohi, learned Standing Counsel for the respondents. 2. The brief facts of the case giving rise to the present writ petition are that the petitioner was a Sub-Inspector in U.P. Civil Police, when he was posted at Police Station Mandi Dhanura, District J.P. Nagar, an FIR was lodged against him on which a Case Crime No. 323/95, under Sections 376/506/120B I.P.C. and 3(1) 12 S.C. and S.T. Act was lodged at Police Station Asmoli, District Moradabad. In pursuance thereof, the petitioner has been suspended vide order dated 4.12.1995. The suspension order has been cancelled and the petitioner has been reinstated vide order dated 7.4.1998. In respect of the aforesaid case crime number, Session Trial No. 1253/97, State v. Nanhey Lal Sharma and others, has been registered. However, in the session trial, the Additional District Judge, Moradabad vide order dated 6.11.2000 acquitted the petitioner. The petitioner is now retired. 3. It appears that a preliminary inquiry has been directed. In the preliminary inquiry, the Circle Officer, Sambhal has submitted the preliminary inquiry report on 29.5.2002 before the Senior Superintendent of Police, Moradabad mentioning therein that the petitioner has been acquitted, as the prosecution witnesses turned hostile and as such, he recommended punishment under Rule 4 (1) Kha of the U.P. Police Officers of the Subordinate Ranks (Punishment and Appeal) Rules, 1991 (hereinafter referred to as the (“Rules, 1991”). In pursuance thereof, Senior Superintendent of Police, Moradabad issued a show-cause notice dated 1.5.2003 to the petitioner as to why censure entry should not be made in your character roll for the act of making the prosecution witnesses hostile in the alleged Case Crime No. 323/95, under Sections 376/506/120B I.P.C. and 3(1) 12 S.C. and S.T. Act. The petitioner has filed reply to the show-cause notice vide reply dated 20.5.2003. The Senior Superintendent of Police, Moradabad passed the order dated 23.12.2005 and imposed censure entry. The petitioner filed an appeal under Rule 20 (1) of the Rules, 1991 before the Deputy Director General of Police, Moradabad Region, Moradabad. The appeal has been rejected vide order dated 28.6.2004 mainly on the ground that the petitioner was found to have made prosecution witnesses hostile on the basis of which he has been acquitted. The petitioner filed an appeal under Rule 20 (1) of the Rules, 1991 before the Deputy Director General of Police, Moradabad Region, Moradabad. The appeal has been rejected vide order dated 28.6.2004 mainly on the ground that the petitioner was found to have made prosecution witnesses hostile on the basis of which he has been acquitted. It appears that the Senior Superintendent of Police, Moradabad has also issued a show-cause notice dated 27.8.2004 asking the petitioner as to why pay and allowances for the suspension period should not be given. The petitioner filed reply stating therein that since he has been fully exonerated from the criminal charge by the criminal Court, he may be treated to be in service and full pay for the suspension period may be allowed. Against the appellate order, the petitioner filed revision under Rule 23 of the Rules, 1991 before the Inspector General of Police, Bareilly Zone, Bareilly, which has been rejected vide order dated 29.9.2005. 4. By means of the present writ petition, the petitioner is challenging the orders dated 29.9.2005, 28.6.2004 and 23.12.2003 and further sought mandamus to the respondents to pay the entire salary for the suspension period from 4.12.1995 to 17.4.1998 together with 18% penal interest as well as to pay the annual increment since 1993. 5. Learned counsel for the petitioner submitted that there is no material that the petitioner has influenced the witnesses as a result of which they turned hostile. Further, in the preliminary inquiry, the statements of main prosecution witnesses, namely, Smt. Maya Devi and her husband, were not recorded by the inquiry officer. 6. Ms. Suman Sirohi, learned Standing Counsel, submitted that the petitioner has been awarded minor punishment for which no inquiry is required. The petitioner has not been acquitted honourably by the criminal Court, but has been acquitted on the ground that the witnesses have turned hostile. She submitted that departmental proceeding and criminal proceeding are two separate and independent proceedings. In a criminal case, the onus of establishing the guilt of the accused is on the prosecution and if he fails to establish the guilt beyond reasonable doubt, the accused is assumed to be innocent, while strict burden of proof required to establish guilt is not required in a disciplinary proceedings and preponderance of probabilities is sufficient. In a criminal case, the onus of establishing the guilt of the accused is on the prosecution and if he fails to establish the guilt beyond reasonable doubt, the accused is assumed to be innocent, while strict burden of proof required to establish guilt is not required in a disciplinary proceedings and preponderance of probabilities is sufficient. She submitted that so far as payment of full salary during the suspended period is concerned, a separate order has been passed by the Senior Superintendent of Police, Moradabad on 19.11.2012, which is annexed alongwith counter-affidavit. This order has not been challenged in the writ petition, and therefore, the petitioner is not entitled for any relief in this regard. Having regard to the facts and circumstances, a very lenient view has been taken in the departmental proceeding and the petitioner has only been awarded censure entry and the same may not be interfered. 7. I have considered rival submissions and perused the record. 8. The order of the criminal Court is Annexure-3 to the writ petition. The order reveals that the petitioner has been acquitted as all the witness turned hostile and they mainly stated that they had not seen any occurrence and no offence took place in their presence. It is a settled principle of law that the departmental proceeding and criminal proceeding are two separate and independent proceedings. In a criminal case, the onus of establishing the guilt of the accused is on the prosecution and if it fails to establish the guilt beyond reasonable doubt, the accused is assumed to be innocent. It is settled law that strict burden of proof required to establish guilt in a criminal Court is not required in a disciplinary proceedings and preponderance of probabilities is sufficient. There may be cases where a person is acquitted for technical reasons or the prosecution giving up other witnesses since few of the other witnesses tuned hostile etc. In the present case, the criminal Court has acquitted the petitioner as all the witnesses turned hostile. In the circumstances, it cannot be said that the petitioner was honourably acquitted by the criminal Court. In any view of the matter, in the disciplinary proceeding, the preponderance of probabilities is sufficient. In a rarest case, any person level the charge of rape against the police officer unless he is involved in any manner. In the circumstances, it cannot be said that the petitioner was honourably acquitted by the criminal Court. In any view of the matter, in the disciplinary proceeding, the preponderance of probabilities is sufficient. In a rarest case, any person level the charge of rape against the police officer unless he is involved in any manner. In the present case, FIR was lodged against the petitioner under Sections 376/506/120B I.P.C. and 3(1) 12 S.C. and S.T. Act by the victim. Therefore, probability of some kind of involvement of the petitioner cannot be overruled. It may be a different matter that the same could not be proved by the prosecution in criminal proceeding for the reasons that all the witnesses turned hostile. Probability that the witnesses might have become hostile due to the influence of the petitioner cannot be overruled. Though in the preliminary inquiry, it is not specifically recorded that the witnesses had turned hostile on account of influence of the petitioner, but the inquiry officer has recommended the minor punishment under Rule 4 (1)(b) of the Rules, 1991 and the disciplinary authority, on the facts and circumstances, could infer that the witnesses turned hostile on account of influence of the petitioner. On the facts and circumstance, the petitioner has only been awarded censure entry, which is a minor punishment. The minor punishment can be given even without any inquiry, therefore, even in the inquiry report, if it is not specifically mentioned that the petitioner was found guilty in turning the witnesses hostile on account of his influence and even without any such finding, the inference drawn by the disciplinary authority cannot be said to be unjustified. The punishment awarded has been confirmed by the Appellate Authority and by the revisional authority. 9. It would be useful to refer the recent decision of the Apex Court in the case of Deputy Inspector General of Police and another v. S. Samuthiram, (2013) 1 SCC 598 . The Apex Court in paras 23 to 27 has observed as follows: “23. We are of the view that the mere acquittal of an employee by a criminal Court has no impact on the disciplinary proceedings initiated by the Department. The Apex Court in paras 23 to 27 has observed as follows: “23. We are of the view that the mere acquittal of an employee by a criminal Court has no impact on the disciplinary proceedings initiated by the Department. The respondent, it may be noted, is a member of a disciplined force and non examination of two key witnesses before the criminal Court that is Adiyodi and Peter, in our view, was a serious flaw in the conduct of the criminal case by the Prosecution. Considering the facts and circumstances of the case, the possibility of winning over P.Ws. 1 and 2 in the criminal case cannot be ruled out. We fail to see, why the Prosecution had not examined Head Constables 1368 Adiyodi and 1079 Peter of Tenkasi Police Station. It was these two Head Constables who took the respondent from the scene of occurrence alongwith P.Ws. 1 and 2, husband and wife, to the Tenkasi Police Station and it is in their presence that the complaint was registered. In fact, the criminal Court has also opined that the signature of PW 1 (husband-complainant) is found in Ex. P1-Complaint. Further, the Doctor P.W. 8 has also clearly stated before the Enquiry Officer that the respondent was under the influence of liquor and that he had refused to undergo blood and urine tests. That being the factual situation, we are of the view that the respondent was not honourably acquitted by the criminal Court, but only due to the fact that PW 1 and PW 2 turned hostile and other prosecution witnesses were not examined. Honourable Acquittal 24. The meaning of the expression “honourable acquittal’ came up for consideration before this Court in Reserve Bank of India, New Delhi v. Bhopal Singh Panchal, (1994) 1 SCC 541 . In that case, this Court has considered the impact of Regulation 46 (4) dealing with honourable acquittal by a criminal Court on the disciplinary proceedings. In that context, this Court held that the mere acquittal does not entitle an employee to reinstatement in service, the acquittal, it was held, has to be honourable. The expressions “honourable’, “acquitted of blame’, “fully exonerated’ are unknown to the Code of Criminal Procedure or the Penal Code, which are coined by judicial pronouncements. It is difficult to define precisely what is meant by the expression “honourably acquitted’. The expressions “honourable’, “acquitted of blame’, “fully exonerated’ are unknown to the Code of Criminal Procedure or the Penal Code, which are coined by judicial pronouncements. It is difficult to define precisely what is meant by the expression “honourably acquitted’. When the accused is acquitted after full consideration of prosecution evidence and that the prosecution had miserably failed to prove the charges levelled against the accused, it can possibly be said that the accused was honourably acquitted. 25. In R.P. Kapoor v. Union of India, AIR 1964 SC 787 , it was held even in the case of acquittal, departmental proceedings may follow where the acquittal is other than honourable. In State of Assam and another v. Raghava Rajgopalachari, 1972 SLR 45, this Court quoted with approval the views expressed by Lord Williams, J. in (1934) 61 ILR Cal. 168 which is as follows : “The expression “honourably acquitted” is one which is unknown to Court of justice. Apparently it is a form of order used in Courts martial and other extra judicial tribunals. We said in our judgment that we accepted the explanation given by the appellant believed it to be true and considered that it ought to have been accepted by the Government authorities and by the magistrate. Further, we decided that the appellant had not misappropriated the monies referred to in the charge. It is thus clear that the effect of our judgment was that the appellant was acquitted as fully and completely as it was possible for him to be acquitted. Presumably, this is equivalent to what Government authorities term “honourably acquitted”. 26. As we have already indicated, in the absence of any provision in the service rule for reinstatement, if an employee is honourably acquitted by a Criminal Court, no right is conferred on the employee to claim any benefit including reinstatement. Reason is that the standard of proof required for holding a person guilty by a criminal Court and the enquiry conducted by way of disciplinary proceeding is entirely different. In a criminal case, the onus of establishing the guilt of the accused is on the prosecution and if it fails to establish the guilt beyond reasonable doubt, the accused is assumed to be innocent. In a criminal case, the onus of establishing the guilt of the accused is on the prosecution and if it fails to establish the guilt beyond reasonable doubt, the accused is assumed to be innocent. It is settled law that the strict burden of proof required to establish guilt in a criminal Court is not required in a disciplinary proceedings and preponderance of probabilities is sufficient. There may be cases where a person is acquitted for technical reasons or the prosecution giving up other witnesses since few of the other witnesses turned hostile etc. In the case on hand the prosecution did not take steps to examine many of the crucial witnesses on the ground that the complainant and his wife turned hostile. The Court, therefore, acquitted the accused giving the benefit of doubt. We are not prepared to say in the instant case, the respondent was honourably acquitted by the criminal Court and even if it is so, he is not entitled to claim reinstatement since the Tamil Nadu Service Rules do not provide so. 27. We have also come across cases where the service rules provide that on registration of a criminal case, an employee can be kept under suspension and on acquittal by the criminal Court, he be reinstated. In such cases, the re-instatement is automatic. There may be cases where the service rules provide inspite of domestic enquiry, if the criminal Court acquits an employee honourably, he could be reinstated. In other words, the issue whether an employee has to be reinstated in service or not depends upon the question whether the service rules contain any such provision for reinstatement and not as a matter of right. Such provisions are absent in Tamil Nadu Service Rules.” 10. It is settled law that scope of judicial review of the punishment order, so as to the punishment awarded in the writ jurisdiction is very limited unless it is wholly arbitrary, based on irrelevant consideration and shockingly disproportionate and shocks the conscience of the Court. 11. The Apex Court in the case of Director General, RPF and others v. Ch. It is settled law that scope of judicial review of the punishment order, so as to the punishment awarded in the writ jurisdiction is very limited unless it is wholly arbitrary, based on irrelevant consideration and shockingly disproportionate and shocks the conscience of the Court. 11. The Apex Court in the case of Director General, RPF and others v. Ch. Sai Babu, (2003) 4 SCC 331 , has observed as follows : “As is evident from the order of the learned Single Judge, there has been no consideration of the facts and circumstances of the case including as to the nature of charges held proved against the respondent to say that penalty of removal from service imposed on the respondent was extreme. Merely because it was felt that the punishment imposed was extreme was not enough to disturb or modify the punishment imposed on a delinquent officer. The learned Single Judge has not recorded reasons to say as to how the punishment imposed on the respondent was shockingly or grossly disproportionate to the gravity of charges held proved against the respondent. It is not that in every case of imposing a punishment of removal or dismissal from service a High Court can modify such punishment merely by saying that it is shockingly disproportionate. Normally, the punishment imposed by a disciplinary authority should not be disturbed by the High Court or a tribunal except in appropriate cases that too only after reaching a conclusion that the punishment imposed is grossly or shockingly disproportionate, after examining all the relevant factors including the nature of charges proved against, the past conduct, penalty imposed earlier, the nature of duties assigned having due regard to their sensitiveness, exactness expected of and discipline required to be maintained, and the department/establishment in which the delinquent person concerned works.” 12. The Apex Court in the case of Chairman and Managing Director, United Commercial Bank and others v. P.C. Kakkar, (2003) 4 SCC 364 , has observed as follows: “The common thread running through in all these decisions is that the Court should not interfere with the administrator’s decision unless it was illogical or suffers from procedural impropriety or was shocking to the conscience of the Court, in the sense that it was in defiance of logic or moral standards. In view of what has been stated in Wednesbury case the Court would not go into the correctness of the choice made by the administrator open to him and the Court should not substitute its decision to that of the administrator. The scope of judicial review is limited to the deficiency in decision-making process and not the decision. To put it differently, unless the punishment imposed by the disciplinary authority or the Appellate Authority shocks the conscience of the Court/tribunal, there is no scope for interference. Further, to shorten litigation it may, in exceptional and rare cases, impose appropriate punishment by recording cogent reasons in support thereof. In the normal course if the punishment imposed is shockingly disproportionate it would be appropriate to direct the disciplinary authority or the Appellate Authority to reconsider the penalty imposed.” 13. In view of the facts and circumstances and foregoing discussions, I do not find any error in the impugned orders, which require interference by this Court. 14. So far as relief No. 2 is concerned, it is submitted that the Senior Superintendent of Police, Moradabad has passed a separate order dated 19.11.2012, which is being filed alongwith counter-affidavit, wherein it has been held that the petitioner is not entitled for any other allowances, except what, towards salary and allowances, he has already received. This order has not been challenged in the writ petition. Therefore, no relief can be granted. However, it is open to the petitioner to challenge the order dated 19.11.2012 in appropriate forum. 15. In the result, the writ petition fails and is dismissed.