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2017 DIGILAW 2728 (ALL)

Nagendra Pratap Singh v. State of Uttar Pradesh

2017-11-24

RAM SURAT RAM (MAURYA)

body2017
JUDGMENT : Ram Surat Ram Maurya, J. Heard Sri Shiv Krishna Bahadur, for the petitioner and Standing Counsel, for State of U.P. 2. The writ petition has been filed for quashing the orders of Senior Superintendent of Jail dated 16.07.2016, reverting the petitioner in three pay scale and Deputy Inspector General (Jail) dated 26.12.2016, dismissing the appeal of the petitioner and for mandamus, directing the respondents to refund deficient amount of salary paid to the petitioner, due to impugned order. 3. The petitioner was appointed as Jail Warden on 28.07.1992, in State of U.P. The petitioner was posted at Sampurnanand Sivir, Sitarganj, Udham Singh Nagar, Rudrapur, on 20.05.1999. He was suspended by order dated 26.05.1999, on the charge that on 20.05.1999, his duty was from 1400 hours to 1800 at barrack of MBR region. He took charge of barrack from Balbir Singh without counting the prisoners detained in the barrack and made entry in gate book and signed it. Convicted Prisoner No. 15984 Lakhmi Chandra son of Mangal, who was detained in that barrack, had escaped before his taking charge. If he had taken charge following the rules, then he could have informed about escaping of Lakhmi Chandra at once and the prisoner could have been caught. Due to gross negligence of the petitioner, Convicted Prisoner No. 15984 Lakhmi Chandra was able to escape. The petitioner has committed breach of paragraphs-776 (6), 1118 (9) and (10) of U.P. Jail Manual, which amounts to misconduct under Rule-3 of U.P. Government Servants Conduct Rules, 1956. 4. Earlier, in the inquiry the petitioner was found guilty of the charge. Senior Superintendent of Jail by order dated 31.01.2000, awarded punishment of reversion of six pay scale. The petitioner filed an appeal against the aforesaid order, which was allowed by order dated 21/24.02.2003 and order dated 31.01.2000 was set aside and Senior Superintendent of Jail was directed to conduct a fresh inquiry. Thereafter fresh inquiry was conducted by Senior Superintend of Jail, who in his report dated 16.02.2008, again found the charge against the petitioner as proved. After giving second show cause notice, by order dated 31.10.2008, he awarded punishment of reversion of three pay scale. The petitioner filed an appeal, which was dismissed by Deputy Inspector General Jail by order dated 11.05.2009. After giving second show cause notice, by order dated 31.10.2008, he awarded punishment of reversion of three pay scale. The petitioner filed an appeal, which was dismissed by Deputy Inspector General Jail by order dated 11.05.2009. The petitioner filed a revision against the aforesaid order which was dismissed by order dated 19.11.2012 and his review application was dismissed by order dated 18.12.2012. The petitioner challenged the aforesaid orders in Claim Petition No. 1842 of 2012, before Public Service Tribunal, U.P., which was allowed by judgment dated 28.03.2014, holding the inquiry was not conducted properly. State of U.P. filed a writ petition (registered as Service Bench No. 478 of 2015), against aforesaid order, which was allowed by this Court, by judgment dated 13.04.2015 on the ground that for procedural irregularity in inquiry the proceeding could not be dropped rather a liberty for conducting fresh inquiry has to be given. 5. After order dated 13.04.2015, fresh inquiry was conducted by Superintendent of Jail, who serve a fresh Charge Sheet dated 11.04.2016 upon the petitioner. The petitioner submitted his reply dated 03.06.2016 to the Charge Sheet. Thereafter inquiry was conducted and Inquiry Officer submitted his report on 24.06.2016, finding that the charge was partly proved, inasmuch as while taking charge of the barrack on 20.05.1999 at 1400 hours by the petitioner one prisoner, namely, Lakhmi Chandra was not there and escaped but the petitioner had not given information regarding his escaping immediately to higher authorities. The petitioner has committed breach of his duties as required under paragraphs-1194 (b) and (g) of U.P. Jail Manual, which is a misconduct under Rule-3 (1) (2) of U.P. Government Servants Conduct Rules, 1956. 6. The petitioner was given second show cause notice dated 30.06.2016. The petitioner submitted his reply to second show cause notice on 12.07.2016. In which, apart from his denial of committing breach of duties as required under paragraphs-1194 (b) and (g) of U.P. Jail Manual, he has stated that for the same incident, FIR of Case Crime No. 152 of 1999 was lodged against him and Suresh Chandra, Chief Warden Jail. In which after investigation, the police had submitted charge sheet against them, on which cognizance was taken and Criminal Case No. 442 of 1999 was registered against them. Judicial Magistrate/Additional Civil Judge (J.D.), Udham Singh Nagar by his judgment dated 11.01.2001 acquitted both the accused. In which after investigation, the police had submitted charge sheet against them, on which cognizance was taken and Criminal Case No. 442 of 1999 was registered against them. Judicial Magistrate/Additional Civil Judge (J.D.), Udham Singh Nagar by his judgment dated 11.01.2001 acquitted both the accused. State of U.P. has not filed any appeal against it and this judgment has become final. As such on the same charge, disciplinary proceeding cannot be conducted again in view of Section 300 Cr.P.C., 1973 and Article 20 of the Constitution. Senior Superintendent of Jail, by his order dated 16.07.2016, held that Inquiry Officer has given full opportunity of hearing to the petitioner. From Jail records and statement of witnesses, its has been proved that the petitioner had taken charge from Balbir Singh on 20.05.1999 at 1420 hours, noting 27 prisoners in gang book although there were 28 prisoners in the barrack as noted in gang book. Thus at the time of taking charge, one prisoner was not in barrack. The petitioner should have immediately informed about escaping of the prisoner to higher authorities according to the provisions of paragraph-1194 (b) and (g). Thus he has committed breach of duty in following the provisions of paragraphs-830, 1189 (9), 1105 and 1194 (b) and (g) of Jail Manual. On these findings, he awarded punishment of reversal in three pay scale. The petitioner filed an appeal against the aforesaid order, which was dismissed by Deputy Inspector General Jail, by order dated 28.12.2016. Hence this writ petition has been filed. 7. I have considered the arguments of the counsel for the parties and examined the record. Law laid down by Supreme Court in Capt. M. Paul Anthony v. Bharat Gold Mines Ltd., AIR 1999 SC 1416 , came for consideration before three Judges Bench of Supreme Court in Ajit Kumar Nag v. Indian Oil Corpn. Ltd., (2005) 7 SCC 764 , in which it has been held that as far as acquittal of the appellant by a criminal court is concerned, in our opinion, the said order does not preclude the Corporation from taking an action if it is otherwise permissible. In our judgment, the law is fairly well settled. Acquittal by a criminal court would not debar an employer from exercising power in accordance with the Rules and Regulations in force. The two proceedings, criminal and departmental, are entirely different. In our judgment, the law is fairly well settled. Acquittal by a criminal court would not debar an employer from exercising power in accordance with the Rules and Regulations in force. The two proceedings, criminal and departmental, are entirely different. They operate in different fields and have different objectives. Whereas the object of criminal trial is to inflict appropriate punishment on the offender, the purpose of enquiry proceedings is to deal with the delinquent departmentally and to impose penalty in accordance with the service rules. In a criminal trial, incriminating statement made by the accused in certain circumstances or before certain officers is totally inadmissible in evidence. Such strict rules of evidence and procedure would not apply to departmental proceedings. The degree of proof which is necessary to order a conviction is different from the degree of proof necessary to record the commission of delinquency. The rule relating to appreciation of evidence in the two proceedings is also not similar. In criminal law, burden of proof is on the prosecution and unless the prosecution is able to prove the guilt of the accused "beyond reasonable doubt", he cannot be convicted by a court of law. In a departmental enquiry, on the other hand, penalty can be imposed on the delinquent officer on a finding recorded on the basis of "preponderance of probability". Acquittal of the appellant by a Judicial Magistrate, therefore, does not ipso facto absolve him from the liability under the disciplinary jurisdiction of the Corporation. We are, therefore, unable to uphold the contention of the appellant that since he was acquitted by a criminal court, the impugned order dismissing him from service deserves to be quashed and set aside. 8. Again in Inspector General of Police v. S. Samuthiram, (2013) 1 SCC 598 , it has been held that as we have already indicated, in the absence of any provision in the service rules 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. 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 that 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. Same view has been followed in Union of India v. Purushottam, (2015) 3 SCC 779 and Baljinder Pal Kaur v. State of Punjab, (2016) 1 SCC 671 . 9. In the present case, in criminal case, the witnesses turned hostile as such the petitioner and other co-accused were given benefit of doubt by judgment dated 11.01.2001. In view of law laid down by Supreme Court in aforementioned cases, the department has jurisdiction to conduct disciplinary proceedings in accordance with law and judgment of criminal court does not bar disciplinary proceeding. The petitioner is not a member of Police as such provisions of U.P. Police Regulations have no application. The Charge against the petitioner was proved on the basis of documentary and oral evidence. This Court in exercise of writ jurisdiction does not find any illegality in the findings recorded by Inquiry Officer/Disciplinary Authority. 10. In view of the aforesaid discussions, the writ petition has no merit and is dismissed.