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2015 DIGILAW 1140 (RAJ)

Mata Prasad v. State of Rajasthan

2015-05-26

AJIT SINGH, ANUPINDER SINGH GREWAL

body2015
JUDGMENT Anupinder Singh Grewal, J. This special appeal is directed against the order of the learned Single Bench dated 21.02.2006, whereby the writ petition preferred by the appellant challenging the order of his dismissal from service was dismissed. 2. The appellant had been working as a Constable since 15.08.1984 and a criminal case was registered against him for committing theft in the house of one Vinod Kumar in the night of 02.08.1988. He had also proceeded on three days casual leave from 18.07.1988 but instead of reporting for duty on expiry of the said period, he remained absent from duty without leave for over 49 days and charge sheet was served upon him on 16.03.1989 under Section 16 of Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958 (hereinafter referred to as "CCA Rules"). He submitted reply to the charge sheet and the Superintendent of Police who is competent authority appointed Shri Yashpal Sharma, Deputy Superintendent of Police as inquiry Officer vide order dated 11.04.1989. However, inquiry officer who was supposed to submit the report was transferred and hence his successor in office considering the material of inquiry, submitted the inquiry report wherein charges were found proved against the appellant. The Superintendent of Police after considering the inquiry report concurred with the finding of guilt recorded by the inquiry officer. The appellant was dismissed from service vide order dated 20.12.1989 (Annexure-9). Against which he preferred an appeal under Rule 23 of CCA Rules which was also rejected by the appellate authority vide order dated 23.08.1990 (Annexure-11). 3. Learned counsel for appellant has contended that the appellant could not have been punished for the charge of theft as in the criminal case which had been registered for this act, he had been acquitted by the trial court. In support of his submission he has placed reliance upon the judgment of the Hon'ble Supreme Court of India in the case of G.M. Tank v. State of Gujarat & Anr. reported in AIR 2006 SC 2129 . He has further submitted that the inquiry officer who had been appointed earlier had been transferred from service and the successor could not have proceeded any further in the matter without fresh order of appointing him as inquiry officer. 4. reported in AIR 2006 SC 2129 . He has further submitted that the inquiry officer who had been appointed earlier had been transferred from service and the successor could not have proceeded any further in the matter without fresh order of appointing him as inquiry officer. 4. He has also contended that the Superintendent of Police, Dholpur who had passed the order of dismissal was not competent to do so as in terms of circular issued by the Government he was competent only to impose punishment of withholding of increment. Lastly, he argued that as the period of absence without leave had been regularised he could not have been dismissed on this count. 5. Per contra, learned Additional Advocate General for the State submitted that there were two grave charges of misconduct against the appellant namely, commission of theft and absence without leave, which had been thoroughly proved in the departmental enquiry. In support of his submission, he invited our attention to the finding with regard to the charge of theft wherein it is evident that there was adequate material on record to prove the charge. 6. We have considered the submissions of the learned counsel for the parties and with their assistance perused the record. 7. We are conscious of the fact that this court in the exercise of writ jurisdiction will not substitute the view taken by the departmental authority. The interference with the departmental inquiry would be called for only to the extent that it should not be a case of no evidence or finding recorded by the inquiry officer is perverse. However, we have examined the order of the inquiry officer especially with regard to the commission of theft. It is evident from the perusal of inquiry that there is adequate material to support the charge of theft. Vinod Kumar PW-3 at whose house theft had taken place had categorically stated that the appellant had slept at his house while Shiv Lal PW-4 had also deposed that the stolen articles which were silver ornaments had been sold by the appellant to him. These ornaments were duly recovered from PW-4 which is corroborated by Jaganath PW-5 who is the witness of the recovery. Smt. Ram Ladli PW-9 was is mother of Vinod Kumar PW-3 and whose ornaments had been stolen, had identified the recovered articles in the court. These ornaments were duly recovered from PW-4 which is corroborated by Jaganath PW-5 who is the witness of the recovery. Smt. Ram Ladli PW-9 was is mother of Vinod Kumar PW-3 and whose ornaments had been stolen, had identified the recovered articles in the court. Therefore, even if the appellant had been acquitted in the criminal trial it could not be said that the departmental enquiry could not be sustained on the same charges. The reliance placed by the learned counsel for the appellant on the judgment of the Hon'ble Supreme Court of India in the case of G.M. Tank (supra) is misplaced as it is clearly distinguishable on facts from the instant case. That case pertains to acquittal of the delinquent by the court in a case of having acquired assets disproportionate to his known sources of income. The trial court had recorded a positive finding that the accused was having satisfactory explanation for acquisition of his immovable property and had not suppressed any such information from the department. There was in fact no evidence whatsoever to sustain the charge of acquiring assets disproportionate to his income. The departmental inquiry was also based on identical and similar set of facts and evidence and it was in such circumstances that the Hon'ble Supreme Court of India held that the departmental enquiry was vitiated. However, in the instant case merely because the appellant has been acquitted in the criminal case is of no significance as far as departmental inquiry is concerned. As already discussed, it is patent that there was sufficient material before the inquiry officer to arrive at the finding of guilt. It is settled law that even if a person has been acquitted in a criminal case, he can still be proceeded against departmentally as standard of proof which is required for guilt in criminal case is beyond reasonable doubt while in departmental inquiry, charges are required to be proved through preponderance of probabilities. We draw support from the judgment of the Hon'ble Supreme Court of India in the case of Samar Bahadur Singh v. State of Uttar Pradhesh & Ors. reported in (2011) 9 SCC 94 , wherein it is held:- "7. Acquittal in the criminal case shall have no bearing or relevance to the facts of the departmental proceedings as the standard of proof in both the cases are totally different. reported in (2011) 9 SCC 94 , wherein it is held:- "7. Acquittal in the criminal case shall have no bearing or relevance to the facts of the departmental proceedings as the standard of proof in both the cases are totally different. In a criminal case, the prosecution has to prove the criminal case beyond all reasonable doubt whereas in a departmental proceedings, the department has to prove only preponderance of probabilities. In the present case, we find that the department has been able to prove the case on the standard of preponderance of probabilities. Therefore, the submissions of the counsel appearing for the appellant are found to be without any merit." 8. In the case of Deputy Inspector General of Police & Another v. S. Samuthiram reported in 2013(1) WLC (SC) Civil 201 : AIR 2013 SC 20, it was held "20. 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 order 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 along with PWs. 1 and 2, husband and wife, to the Tenkasi Police Station and it is in their presence that the complaint 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. 21. 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. 21. The meaning of the expression 'honourable acquittal' came up for consideration before his Court in Management of Reserve Bank of India, New Delhi v. Bhopal Singh Panchal (1994) 1 SCC 541 : ( AIR 1994 SC 552 : 1993 AIR SCW 4044). 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 acquittal', '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 has miserably failed to prove the charges levelled against the accused, it can possibly be said that the accused was honourably acquitted. 22. 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 reported in 1972 SLR 44, this Court quoted with approval the views expressed by Lord Williams, J. in (1934) 61 ILR Cal. 168 : (AIR 1933 Cal 800) 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. 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". 23. 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. 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. 24. 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 in spite of domestic enquiry, if the criminal court acquits an employee honourably, he could be reinstated. In such cases, the re-instatement is automatic. There may be cases where the service rules provide in spite 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 the Tamil Nadu Service Rules. 25. In view of the above mentioned circumstances, we are of the view that the High Court was not justified in setting aside the punishment imposed in the departmental proceedings as against the respondent, in its limited jurisdiction under Article 226 of the Constitution of India." 9. This judgment was followed by the Hon'ble Supreme Court of India in the case of Union of India & Another v. Purushottam reported in AIR 2015 SC 961 , wherein it was held, thus :- "13 In R.R. Kapur v. Union of India AIR 1964 SC 787 the question before the Constitution bench was that the Petitioner therein had been suspended owing to the pendency of criminal proceedings against him which was challenged on the anvil of Article 314 of the Constitution. Thus, this decision is not of much relevance for the resolution of the legal nodus before us, save for the observations that "if criminal charge results in conviction, disciplinary proceedings are bound to follow against the public servant is convicted, even in case of acquittal proceedings may follow where the acquittal is other than honourable.'' However, on this aspect of the law we need go no further than the recent decision in Deputy General of Police v. S. Samtithiram (2013) 1 SCC 598 , since it contains a comprehensive discourse on all the prominent precedents. This Court has concluded, and we respectfully think correctly, that acquittal of an employee by a Criminal Court would not automatically and conclusively impact Departmental proceedings. Firstly, this is because of the disparate degrees of proof in the two, viz. beyond reasonable doubt in criminal prosecution contrasted by preponderant proof in civil or departmental enquiries. Secondly, criminal prosecution is not within the control of the concerned department and acquittal could be the consequence of shoddy investigation or slovenly assimilation of evidence, or lackadaisical if not collusive conduct of the trial etc. beyond reasonable doubt in criminal prosecution contrasted by preponderant proof in civil or departmental enquiries. Secondly, criminal prosecution is not within the control of the concerned department and acquittal could be the consequence of shoddy investigation or slovenly assimilation of evidence, or lackadaisical if not collusive conduct of the trial etc. Thirdly, an acquittal in a criminal departmental enquiry if the former is a positive decision in contradistinction to a passive verdict which may be predicated on technical infirmities, in other words, the Criminal Court must conclude that the accused is innocent and not merely conclude that he has not been proved to be guilty beyond reasonable doubt." 10. It is apparent from the perusal of record that earlier Mr. Yashpal Sharma, Deputy Superintendent of Police had been appointed as inquiry officer. It was only when he had been transferred that his successor in office continued to proceed with the inquiry. The inquiry report was placed before the disciplinary authority who had passed the order of dismissal which in no manner caused any prejudice to the appellant. 11. A perusal of Rule 16-A of the CCA Rules reveals that it is enjoined upon the disciplinary authority himself or may appoint inquiry officer to inquire into the charges against the delinquent and the inquiry officer is only a fact finding officer and ultimately the decision has to be taken on the inquiry report by the disciplinary authority in terms of Rule 16(A) of the CCA Rules. 12. There also does not appear to be any merit in the submission of the counsel for the appellant that the order of dismissal was not passed by the competent authority. Upon perusal of the Rajasthan Police Subordinate Service Rules, 1989, it is evident that the appointing authority of Constable is the District Superintendent of Police. Rules 2 (a) is reproduced hereunder "2(a) "Appointing Authority" means - (iii) for the posts of Assistant Sub-Inspectors/Head Constables & Constables in Rule 4, Section I, II & IV - The Superintendent of Police/Commandant or an Officer of the equivalent rank." 13. It is, thus, patent that the Superintendent of Police who passed the order of dismissal was fully competent to do so. 14. Further, the submission of the counsel for the appellant that as the period of absence from duty was regularized, he could not have been dismissed on that score cannot be accepted. It is, thus, patent that the Superintendent of Police who passed the order of dismissal was fully competent to do so. 14. Further, the submission of the counsel for the appellant that as the period of absence from duty was regularized, he could not have been dismissed on that score cannot be accepted. Upon perusal of the order of dismissal, it is evident that the period of absence had been regularised while passing the order of regularisation meaning thereby that it was done only for the purpose of maintaining the correct record of service. 15. There appeared to be divergence of views expressed by the Hon'ble Supreme Court of India regarding the effect of order regularising the period of absence on the dismissal of the delinquent official. The matter was ultimately referred to the larger bench in the case of Maan Singh v. Union of India & Others reported in (2003) 3 SCC 464 wherein it was held that such an order regularising the period of absence is only for the purpose of maintaining correct service record and does not effect the order of dismissal. The relevant paras 3 to 7 of the said judgment are reproduced hereunder:- 3. In the writ petition filed against the order of the Tribunal, in the High Court the only ground urged was that the present case is covered by the decision of this Court in State of Punjab v. Bakshish Singh wherein this Court held that the period of absence having been regularised as ''leave without pay" would automatically set at naught the order of dismissal. It was also contended that the decision of this Court in State of M.P. v. Harihar Gopal is deemed to have been overruled. The High Court carefully examined this contention and took the view that the decision in Harihar Gopal case is by a larger Bench and this decision had not been brought to the notice of this Court in Bakshish Singh case and the view taken by the Tribunal being in conformity with the view expressed by this Court in Harihar Gopal case upheld the order of the Tribunal and dismissed the writ petition. 4. 4. When this appeal came up for consideration before this Court, a Bench of two learned Judges referred this matter to a Bench of three Judges in view of apparent conflict between the decisions of this Court in Harihar Gopal and Bakshish Singh. It is thus this matter is set down for hearing before us. 5. In Harihar Gopal case this Court noticed that the delinquent officer in failing to report for duty and remaining absent without obtaining leave had acted in a manner irresponsibly and unjustifiedly; that, on the finding of the enquiry officer, the charge was proved that he remained absent without obtaining leave in advance; that the order granting leave was made after the order terminating the employment and it was made only for the purpose of maintaining a correct record of the duration of service and adjustment of leave due to the delinquent officer and for regularising his absence from duty. This Court's attention was not invited to any rule governing the respondent's service conditions under which an order regularising absence from duty subsequent to termination of employment had the effect of invalidating termination. Thus, this Court concluded that it could not be held that the authority after terminating the employment of the delinquent officer intended to pass an order invalidating that earlier order by sanctioning leave so that he was to be deemed not to have remained absent from duty without leave duly granted. 6. Bakshish Singh case arose out of a suit filed by Bakshish Singh who was a police constable in Punjab but was dismissed from service on 1.6.1988 after a regular departmental enquiry on the charge of unauthorised absence from duty. This order was challenged on several grounds and the trial court decreed the suit on the basis that the order of dismissal could not have been passed by the defendants inasmuch as they themselves had regularised and treated the period of the plaintiff's absence from duty as the period of leave without pay and they could not legally say that he was guilty of misconduct for unauthorised absence from duty. Having found that it was not a case of misconduct of the gravest kind, the lower appellate court, while upholding the findings of the trial court, remanded the case back to the disciplinary authority for passing a fresh order of punishment. Having found that it was not a case of misconduct of the gravest kind, the lower appellate court, while upholding the findings of the trial court, remanded the case back to the disciplinary authority for passing a fresh order of punishment. Second appeal preferred before the High Court was dismissed in limine. In those circumstances, this Court noticed that : (SCC p. 225, para 4) "Once it was found as a fact that the charge of unauthorised absence from duty did not survive, we fail to understand how the lower appellate court could remand the matter back to the punishing authority for passing a fresh order of punishment." (emphasis supplied) It was further noticed that the finding of the trial court was that proper opportunity of hearing was not given and the signatures of Bakshish Singh were obtained under duress during departmental proceedings and when that finding remained intact, there was no occasion to remand the case to the punishing authority merely for passing a fresh order of punishment. It is in these circumstances this Court ultimately passed an order as set out in para 11 of the judgment, which is as under: (SCC pp. 226-27) "It will be noticed that the trial court recorded a categorical finding of fact that a proper opportunity of hearing was not afforded to the respondent in the departmental proceedings and that his allegation that his signatures on certain papers during those proceedings were obtained under duress, was not controverted as the State of Punjab had led no evidence in defence. The trial court also recorded a finding that unauthorised absence from duty having been regularised by treating the period of absence as leave without pay, the charge of misconduct did not survive. It was with this finding that the suit was decreed. The lower appellate court confirmed the finding that since the period of unauthorised absence from duty was regularised, the charge did not survive but it did not say a word about the finding relating to the opportunity of hearing in the departmental proceedings. Since those findings were not specifically set aside and the lower appellate court was silent about them, the same shall be treated to have been affirmed. In the face of these findings, it was not open to the lower appellate court to remand the case to the punishing authority for passing a fresh order of punishment. Since those findings were not specifically set aside and the lower appellate court was silent about them, the same shall be treated to have been affirmed. In the face of these findings, it was not open to the lower appellate court to remand the case to the punishing authority for passing a fresh order of punishment. The High Court before which the second appeal was filed by the State of Punjab, did not advert itself to this inconsistency as it dismissed the appeal summarily, which indirectly reflects that it allowed an inconsistent judgment to pass through its scrutiny." Therefore, the appeal in Bakshish Singh case was allowed. It is only in the headnote of the Report that the question whether an employee could be held guilty of misconduct on the basis of unauthorised absence is set out as decided in the trial court and affirmed by the first appellate court and not from the judgment of this Court such a conclusion can be drawn since there is no consideration or discussion at all, much less any declaration of law is made by this Court on this aspect of the matter. This Court in that case really considered the-scope of powers of remand, made the order as set out above and did not in fact, consider the question whether the view expressed by the first appellate court in affirming the order of the trial court was justified or not, but proceeded on the basis that on the conclusion reached by the first appellate court whether remand to disciplinary authority is permissible in law and recorded its findings. Therefore, the decision of this Court in Bakshish Singh case is not an authority for the proposition that the order terminating the employment cannot be sustained inasmuch as in the later part of the same order the disciplinary authority also regularised unauthorised absence from duty by granting an employee leave without pay. In our view, thus, there is no conflict in this regard with the decision in Harihar Gopal case. 7. A number of decisions rendered by different High Courts have been cited before us in Tito Francisco Pereira v. Administrator of Goa, Daman and Diu, G. Papaiah v. Asstt. Director, Medical Services, Bhursinh Hamsinh Rajput v. State of Gujarat, Satya Pal Yadav v. Union of India and State of Punjab v. Chanan Singh. 7. A number of decisions rendered by different High Courts have been cited before us in Tito Francisco Pereira v. Administrator of Goa, Daman and Diu, G. Papaiah v. Asstt. Director, Medical Services, Bhursinh Hamsinh Rajput v. State of Gujarat, Satya Pal Yadav v. Union of India and State of Punjab v. Chanan Singh. These decisions are contrary to Harihar Gopal case and stand overruled." 16. The judgment in the case of Maan Singh (supra) was also followed by the Hon'ble Supreme Court of India in the case of Om Prakash v. State of Punjab & Others reported in (2011) 14 SCC 682 wherein it was held: "11. A similar issue came to be raised in this Court several times. In State of M.P. v. Harihar Gopal this Court noticed that the delinquent officer in failing to report for duty and remaining absent without obtaining leave had acted in a manner irresponsibly and unjustifiably; that, on the finding of the enquiry officer, the charge was proved that he remained absent without obtaining leave in advance; that the order granting leave was made after the order terminating the employment and it was made only for the purpose of maintaining a correct record of the duration of service and adjustment of leave due to the delinquent officer and for regularising his absence from duty. This Court in the said decision held that it could not be accepted that the authority after terminating the employment of the delinquent officer intended to pass an order invalidating that earlier order by sanctioning leave so that he was to be deemed not to have remained absent from duty without leave duly granted. 12. Our attention is also drawn to the decision of this Court in Maan Singh v. Union of India wherein a similar situation and proposition has been reiterated by this Court. There are a number of decisions of this Court where it has been held that if the departmental authorities, after passing the order of punishment, passes an order for maintaining a correct record of the service of the delinquent officer and also for adjustment of leave due to the delinquent officer, the said action cannot be treated as an action condoning the lapse and the misconduct of the delinquent officer." 17. Besides the charge of theft, there is also charge of absence from duty for a period of over 49 days without leave. Besides the charge of theft, there is also charge of absence from duty for a period of over 49 days without leave. This charge has also been proved and could be itself provide the basis for passing order of dismissal. It is also well settled that unauthorized absence from duty in a disciplined organisation like the Police Force would justify dismissal of the delinquent. 18. In view of the above, we do not find any justifiable ground to interfere with the well reasoned orders passed by the departmental authorities as well as the view taken by the learned Single Judge. 19. Consequently, the instant appeal is dismissed being devoid of any merit with no order as to costs. Appeal dismissed.