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2014 DIGILAW 404 (RAJ)

Jamna Lal Meena v. State of Rajasthan

2014-02-06

MOHAMMAD RAFIQ

body2014
ORDER BY THE COURT 1. This writ petition has been filed seeking to quash and set-aside the orders 31/3/1997 (Ann.1) passed by Superintendent of Police, Jhalawar whereby, penalty of removal of service and 12/11/1997 (Ann.2) passed by appellate authority i.e. Deputy Inspector General of Police, Kota whereby, it upheld the aforesaid order and dismissed the appeal. 2. Brief facts giving rise to the filing of this writ petition are that petitioner was initially appointed on the post of Constable in the year 1979. He was sent to Gram Panchayat Parapipli with the police party on duty during the Gram Panchayat elections from 29/1/1995 till further orders. Petitioner was thereafter sent on duty to Gram Panchayat Nolaie from 1/2/1995. When he was taking rest in the truck about 8.00 p.m. in the evening, the Head Constable Jaswant Singh asked him to go on petrol duty. He was carrying loaded rifle for that purpose, which accidentally fired and the pellets hit the ground, on account of which, some stones were thrown away and caused injuries to Kalu Lal, Ram Lal and Chander Singh standing nearby. An FIR was registered against him for offence u/S.308 IPC with Police Station Pidawa being FIR No.14/1995. The petitioner was issued a charge-sheet on those allegation is under Rule 16 of the Rajasthan Civil Services (Classification, Control & Appeal) Rules, 1958 (for short, the "Rules of 1958") on 1/5/1995. During pendency of the enquiry, he was placed under suspension. The enquiry officer held him guilty and on that basis, the disciplinary authority i.e. Superintendent of Police, Jhalawar vide order dated 31/3/1997 (Ann.1) awarded him penalty of removal from service with the direction that he shall not be entitled to remaining amount of salary except the subsistence allowance for the intervening period. Petitioner filed departmental appeal before the appellate authority viz. Deputy Inspector General of Police, Kot, who vide order dated 12/11/1997 (Ann.2) dismissed the appeal. 3. Apart from the disciplinary proceedings, an FIR was also lodged against petitioner by Jaswant Singh Head Constable. The challan was filed against him for offence u/S.308 IPC. The learned trial court however vide judgment dated 26/11/1997 acquited the petitioner of all the charges. 4. Deputy Inspector General of Police, Kot, who vide order dated 12/11/1997 (Ann.2) dismissed the appeal. 3. Apart from the disciplinary proceedings, an FIR was also lodged against petitioner by Jaswant Singh Head Constable. The challan was filed against him for offence u/S.308 IPC. The learned trial court however vide judgment dated 26/11/1997 acquited the petitioner of all the charges. 4. Smt. Kamla Jain, learned counsel for the petitioner has argued that both in the charge-sheet served upon him under Rule 16 of the Rules of 1958 and also in the FIR, the charge against petitioner was not of intentional opening of fire. The allegation was that petitioner while on duty was carrying a loaded rifle and due to his negligence, it fired and pellets hit the ground, as a result of which, the stones were thrown and caused minor injuries to Kalu Lal, Ram Lal and Chander Singh standing nearby. On the same allegation, petitioner was tried for offence u/S.308 IPC and he was acquitted. Learned counsel for petitioner argued that Bherunlal (PW1), Kaluram (PW2), Ramlal (PW3), Imam Khan (PW4), Jaswant Singh (PW5), Onkar Singh (PW6), Kan Singh (PW7), Dr.K.K. Vijay (PW8), Nandkishore (PW9), Chander Singh (PW10), Radheyshyam (PW11), Puprilal (PW12) and Omprakash (PW13) were produced as witnesses before the trial court and none of them have alleged deliberate action on the part of the petitioner in opening fire. Petitioner thus was acquitted of the charge of offence u/S.308 IPC. Learned counsel argued that when petitioner was acquitted of the charge in the criminal trial, charges being same, he ought to have been exonerated in the disciplinary proceedings as well. 5. The learned counsel for the petitioner has argued that even as per the charge-sheet, the first charge against the petitioner was that he while sitting in the truck was listening to music, Head Constable asked him to proceed on duty, which he did not immediately obey and that while loading the rifle, it fired due to negligence and the pellets hit the ground, due to which, the stones lying on the ground were thrown away causing injuries to Kalu Lal, Ram Lal and Chander Singh standing nearby. Charge No.2 was to the effect that charge sheet has been filed against him in Criminal Case No.14/1995 for offence u/S.308 IPC. Charge No.2 was to the effect that charge sheet has been filed against him in Criminal Case No.14/1995 for offence u/S.308 IPC. Learned counsel for the petitioner submitted that the charge sheet was issued to the petitioner on the basis of the FIR. Since the petitioner has been acquitted in the criminal trial, there can be no justification for proceeding in departmental proceedings. Learned counsel for the petitioner has relied on the judgment of the Supreme Court in G.M. Tank Vs. State of Gujarat and Others : (2006) 5 SCC 446 and judgment of this Court in Sardar Singh Vs. State of Rajasthan and Others : 2009 (5) WLC (Raj.) 48. 6. Shri S.D. Khaspuria, learned counsel for the respondents has opposed the writ petition and argued that the charges against the petitioner in the criminal trial were not exactly the same as they were in the departmental enquiry. Otherwise also, it is well settled principles of law that the yardstick and standard of proof in a criminal case is different from the disciplinary proceeding and two cannot be linked together. While the standard of proof in a criminal case is a proof beyond reasonable doubt, in a departmental proceeding it is preponderance of probabilities. Therefore, the petitioner on the basis of his acquittal in the criminal trial cannot take benefit in the departmental proceedings. The punishment of dismissal from service is proportionate to the gravity of charge of grave misconduct found proved against petitioner. 7. After hearing learned counsel for the parties and perusing the material available on record, I find that the trial court examined as many as fifteen witnesses and indeed, none of them have alleged deliberate action on the part of the petitioner in opening fire and in these circumstances, the petitioner was exonerated of the 6 charge of offence u/S.308 IPC by the trial court. 8. Thus, allegations sought to be proved against the petitioner in departmental enquiry were exactly the same as they were in the shape of charge u/S.308 IPC in criminal trial. What is more, not only the charges were the same but most of the witnesses produced by the prosecution to prove them, were also same. 8. Thus, allegations sought to be proved against the petitioner in departmental enquiry were exactly the same as they were in the shape of charge u/S.308 IPC in criminal trial. What is more, not only the charges were the same but most of the witnesses produced by the prosecution to prove them, were also same. Witnesses, namely, Bherunlal (PW1), Kaluram (PW2), Ramlal (PW3), Imam Khan (PW4), Jaswant Singh (PW5), Onkar Singh (PW6), Kan Singh (PW7), Dr.K.K. Vijay (PW8), Nandkishore (PW9), Chander Singh (PW10), Radheyshyam (PW11), Puprilal (PW12) and Omprakash (PW13) have been produced to prove the charges in the criminal trial. In the departmental proceedings, Bherunlal (PW1) was produced as PW-1, Kaluram (PW2) as produced as PW-2, Ramlal (PW3) was produced as PW-4, Imam Khan (PW4) was produced as PW-5, Jaswant Singh, Head Constable (PW5) was produced as PW-12, Onkar Singh (PW6) SHO was produced as PW-14, Kan Singh (PW7) was produced as PW-7, Nandkishore (PW9) was produced as PW-13, Chander Singh (PW10) was produced as PW-3 and Radheyshyam (PW11) was produced as PW-6. Therefore, out of 15 persons, 10 persons, who were witnesses in the criminal trial aforenamed were also the same witnesses in the departmental proceedings. Not only charges in the disciplinary proceedings were same as they were in criminal trial but in fact, Charge No.2 in the disciplinary enquiry was precisely to the effect that a charge-sheet for offence u/S.308 IPC has been filed against the delinquent in criminal court. The contention of the learned counsel for the respondents that yardstick and standard of proof in a criminal case is different from the disciplinary proceeding and cannot be linked together, cannot be accepted in view of the judgment of Supreme Court in G.M. Tank supra, wherein the Supreme Court while dealing with similar controversy held in para 31 of the report, as under :- “31. In our opinion, such facts and evidence in the department as well as criminal proceedings were the same without there being any iota of difference, 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 difference, 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 Anthony's case (supra) will apply. We, therefore, hold that the appeal filed by the appellant deserves to be allowed.” 9. The Supreme Court in Capt. M. Paul Anthony Vs. Bharat Gold Mines Limited – (1999) 3 SCC 679 held that when proceedings are based on same set of facts, which were sought to be proved by the same witnesses and the court had already acquitted the accused by rejecting the prosecution story, the findings recorded against him proving the charges against him in departmental enquiry, cannot be sustained. The Supreme Court further held that in such facts it would be unjust, unfair and rather oppressive to allow the findings recorded in departmental enquiry, to stand. It would be instructive to reproduce paras 34 and 35 of the report, which are as under :- 34. There is yet another reason for discarding the whole of the case of the respondents. As pointed out earlier, the criminal case as also the departmental proceedings were based on identical set of facts, namely, 'the raid conducted at the appellant's residence and recovery of incriminating articles therefrom.' The findings recorded by the Inquiry Officer, a copy of which has been placed before us, indicate that the charges framed against the appellant were sought to be proved by Police Officers and Panch witnesses, who had raided the house of the appellant and had effected recovery. They were the only witnesses examined by the Inquiry Officer and the Inquiry Officer, relying upon their statements, came to the conclusion that the charges were established against the appellant. They were the only witnesses examined by the Inquiry Officer and the Inquiry Officer, relying upon their statements, came to the conclusion that the charges were established against the appellant. The same witnesses were examined in the criminal case but the court, on a consideration of the entire evidence, came to the conclusion that no search was conducted nor was any recovery made from the residence of the appellant. The whole case of the prosecution was thrown out and the appellant was acquitted. In this situation, therefore, where the appellant is acquitted by a judicial pronouncement with the finding that the "raid and recovery" at the residence of the appellant were not proved, it would be unjust, unfair and rather oppressive to allow the findings recorded at the ex- parte departmental proceedings, to stand. 35. Since the facts and the evidence in both the proceedings, namely, the departmental proceedings and the criminal case were the same without there being any iota of difference, the distinction, which is usually drawn as between the departmental proceedings and the criminal case on the basis of approach and burden of proof, would not be applicable to the instant case.” 10. In Krishnakali Tea Estate Vs. Akhil Bharatiya Chah Mazdoor Sangh – (2004) 8 SCC 200 , it was held by the Supreme Court that the acquittal by the criminal court was 'honorable' as it was based on the fact that the prosecution did not produce sufficient material to establish its charge which was clear from the findings recorded by the criminal court. Similar view has been expressed by a coordinate bench of this court in Khawaju Khan Vs. The State of Rajasthan and Others – 2007 (4) WLC (Raj.) 252. 11. Law laid down by the Supreme Court thus fully covers the fact situation of the case in hand. In the light of this view, therefore, impugned orders cannot be sustained in law. 12. In view of above discussion, present writ petition partly succeeds and the same is allowed in part. The order of penalty dated 31/3/1997 (Ann.1) passed by respondent No.3-Superintendent of Police, Jhalawar and the order dated 12/11/1997 (Ann.2) passed by the appellate authority viz. respondent No.2-Deputy Inspector General of Police Range, Kota dismissing departmental appeal are set-aside. Petitioner is held entitled to reinstatement. He would however not be entitled to other pecuniary benefit for the intervening period. The order of penalty dated 31/3/1997 (Ann.1) passed by respondent No.3-Superintendent of Police, Jhalawar and the order dated 12/11/1997 (Ann.2) passed by the appellate authority viz. respondent No.2-Deputy Inspector General of Police Range, Kota dismissing departmental appeal are set-aside. Petitioner is held entitled to reinstatement. He would however not be entitled to other pecuniary benefit for the intervening period. He shall be however treated to have throughout continued in the service of the respondents. His salary on reinstatement shall be notionally assessed deeming as if he throughout continued in service. Compliance of the judgment shall be made within a period of three months from the date, copy of this order is produced before the respondents.