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2017 DIGILAW 564 (RAJ)

Kailash Dan v. State of Rajasthan

2017-02-16

ALOK SHARMA

body2017
ORDER : Alok Sharma, J. 1. Having been found guilty of misconduct of consuming liquor in company of another constable while on duty on the night intervening 9/10-7-2004 and also having indulged in the unsavory act of paid sex with a call girl while on duty for which he was also being prosecuted in FIR No. 120/2004 registered at Police Station Banipark Jaipur inter alia for offences under Sections 6 and 7 of the Prevention of Immoral Traffic Act, 1956 (hereinafter 'the PITA Act') as also Section 294 IPC, the petitioner was removed from service vide order dated 24-5-2007. The said order was affirmed by the Appellate Authority on 11-2-2008 and review there against was dismissed vide order dated 25-2-2011. Not letting up the petitioner has now used the easy and cheap access to this court invoking its extraordinary jurisdiction under Article 226 of the Constitution of India. He seeks quashing of the aforesaid three orders whereby he has been removed from service and resultant reinstatement, of course, with all consequential benefits. 2. The facts of the case are that the petitioner serving as a Constable with the Rajasthan Police was charge sheeted under Rule 16 of the Rajasthan Civil Services (Classification, Control & Appeals) Rules, 1958 (hereinafter 'the Rules of 1958') on 11-10-2004 on the allegation that while on duty at the treasury in the office of District Collector Jaipur he consumed liquor in the company of another Constable Prem Prakash and had paid sex with one Meena, a call girl, in the Guard Room. It was alleged that on the aforesaid facts FIR No. 120/2004 at Police Station Banipark Jaipur had also been registered against the three persons aforesaid under Sections 6 and 7 of the PITA Act and Section 294 IPC wherein the petitioner had been arrested and sent to Judicial Custody before being bailed out. Reply of denial was filed by the petitioner. Enquiry officer was appointed. In support of the allegations in the charge sheet, the department relied on 19 witnesses and 27 documents. The defence set up by the petitioner being found to be baseless on the evidence on record, the Enquiry Officer found him guilty of all charges alleged. Enquiry report was submitted to the Disciplinary Authority. Opportunity of hearing was provided to the petitioner vide a notice under Article 311(2) of the Constitution of India. The defence set up by the petitioner being found to be baseless on the evidence on record, the Enquiry Officer found him guilty of all charges alleged. Enquiry report was submitted to the Disciplinary Authority. Opportunity of hearing was provided to the petitioner vide a notice under Article 311(2) of the Constitution of India. Reply to the notice under Article 311(2) of the Constitution of India was found unsatisfactory and the finding of the Enquiry Officer endorsed by the Disciplinary Authority. Punishment of removal from service was visited upon the petitioner vide order dated 24-5-2007 in view of the grave misconduct proved. The petitioner's appeal and review petition against the said order of removal from service have since been dismissed on 11-2-2008 and 25-2-2011 respectively. Hence this petition. 3. Mr. R.N. Mathur, Senior Advocate appearing on behalf of the petitioner has impugned the finding of misconduct and penalty in the departmental enquiry primarily on the ground that the petitioner's acquittal in the criminal case for offences under Sections 6 and 7 of the PITA Act and 294 IPC, vide judgment dated 18-6-2010 was not considered by the Reviewing Authority despite it being brought to its notice. That, Mr. R.N. Mathur submitted, vitiated the Reviewing Authority's order dated 25-2-2011 affirming the order of penalty of removal of the petitioner. It was further submitted that in any event there being commonality of facts and evidence in both the departmental enquiry and the criminal prosecution, the acquittal of the petitioner in criminal case for offences under Sections 6 and 7 of the PITA Act and Section 294 IPC by itself ought to have led to the petitioner's exoneration in the departmental enquiry without anything more. It was submitted that the Apex Court in the case of G.M. Tank v. State of Gujarat (2006)5 SCC 446 has held that in case a criminal case founded on same facts and evidence as the purported misconduct in the departmental enquiry, the acquittal of accused in the criminal case has to necessarily impact the departmental enquiry and result in the delinquent's exoneration. Mr. R.N. Mathur emphatically submitted that the charges in the departmental enquiry against the petitioner, were on same facts as was his criminal prosecution, and in fact, in fairness the departmental enquiry ought to have been stayed during pendency of the criminal trial. Mr. R.N. Mathur emphatically submitted that the charges in the departmental enquiry against the petitioner, were on same facts as was his criminal prosecution, and in fact, in fairness the departmental enquiry ought to have been stayed during pendency of the criminal trial. That was not done and has led to the unjust situation of the petitioner suffering a removal from service on the same facts on which his criminal prosecution has failed and he stands acquitted. It was then submitted that even otherwise, the finding of misconduct on the charges framed by the Disciplinary Authority, affirmed in appeal and review is wholly perverse and not supported by any evidence. It was submitted that the witnesses of prosecution in criminal case against the petitioner having been disbelieved by the trial court, their evidence could not have had any probative worth for holding the petitioner guilty in the departmental enquiry. Mr. R.N. Mathur submitted that in the circumstances the finding of misconduct and resultant penalty of the petitioner's removal from service be quashed and set aside and he be reinstated in service. 4. Dr. A.S. Khangarot, counsel appearing for the department has submitted that the Enquiry Officer has considered the case of the petitioner thread bare and on evidence before him, found the charges proved. The Disciplinary Authority then having issued notice to the petitioner under Article 311(2) of the Constitution of India and considering his reply thereto has removed him from service by way of penalty. It was submitted that lesser punishment for the misconduct found was not even conceivable as a Constable on duty could not do worse than be found intoxicated, indulging in paid sex with a call girl. Dr. A.S. Khangarot submitted that the order dated 11-2-2008 passed by the Appellate Authority was a concurring one, and in this view of the matter was not required to be detailed. It was submitted that the factum of the petitioner's acquittal in the criminal prosecution, relating to the same incident of the intervening night of 9/10-7-2004, under the judgment dated 18-6-2010 was of no avail to the petitioner for various reasons. For one, the parameters of departmental enquiry and a criminal case are wholly distinct: one rests on preponderance of probabilities, the other on "beyond reasonable doubt". For one, the parameters of departmental enquiry and a criminal case are wholly distinct: one rests on preponderance of probabilities, the other on "beyond reasonable doubt". A mere acquittal in criminal case on the basis of technical lacuna and benefit of doubt to an accused is of no consequence to the conclusions in a departmental enquiry finding the delinquent guilty of the misconduct on the evidence laid in the course thereof. It was submitted that the Apex Court in the case of Depot Manager Andhra Pradesh State Road Transport corporation v. Mohd. Yousuf Miya, AIR 1997 SC 2232 has held that while a criminal prosecution is launched to punish an offender for breach of law, a departmental enquiry is for a wholly distinct purpose i.e. to maintain discipline and efficiency in public service. It was submitted that the petitioner's acquittal in the criminal case was inter alia based on lack of prosecution sanction and the evidence of prosecution witnesses being contradictory and hence unreliable with reference to requisite standards of criminal law. None of the aforesaid aspects which led to the petitioner's acquittal in criminal case for offences under Sections 6 and 7 of the PITA and 294 IPC can provide any succor to the delinquent in seeking to impugn the findings of guilt on the misconduct alleged and penalty imposed in the departmental enquiry. It was submitted that the shocking misconduct of the petitioner found on evidence on record by the Disciplinary Authority as affirmed by the Appellate Authority and Reviewing Authority is extremely grave and serious in nature. The petitioner has lowered the image of the police department by drinking and having paid sex while on duty. It was submitted that the findings of petitioner's misconduct on the voluminous evidence on record cannot even remotely be held to be perverse. Nor can the punishment of his removal from service be held to be shockingly disproportionate to warrant interference by this court. 5. Heard. Considered. 6. Standards of proof and procedure in a departmental enquiry are distinct and different from that of criminal trial which requires adherence to the Code of Criminal Procedure, the Evidence Act and the need to be satisfied beyond reasonable doubt for finding guilt. In fact the Evidence Act does not attract to a departmental enquiry at all. In a departmental enquiry even hearsay evidence is admissible. The standard of proof is preponderance of probability. In fact the Evidence Act does not attract to a departmental enquiry at all. In a departmental enquiry even hearsay evidence is admissible. The standard of proof is preponderance of probability. It is no doubt true that both the departmental enquiry leading to petitioner's dismissal under impugned orders and criminal prosecution related to same incident of the night intervening 9/10-7-2004. It is indeed undisputed that the petitioner was acquitted for the offences under Sections 6 and 7 of the PITA Act and Section 294 IPC. A reading of the said judgment of acquittal of the petitioner in the criminal case, however, makes it vivid that the petitioner did not obtain a clear and honorable acquittal or exoneration. Nor did the criminal court find absence of any evidence at all against the petitioner in respect of the offences under Section 6 and 7 of the PITA Act and Section 294 IPC. It merely held that the ingredients of the offence were not made out on evidence on record. The trial court also adverted to the lack of sanction for prosecution of the petitioner. The court did not hold that the incident on which the prosecution was based did not occur at all. I am of the considered view that the reason which prevailed with the trial court for acquitting the petitioner were/are quite irrelevant for the purpose of ascertaining the petitioner's misconduct on the serious charge of consuming liquor while on duty and procuring a call girl for paid sex at the Guard Room of the Treasury of the District Collector Jaipur where he was posted. There was more than ample evidence based on 18 witnesses and 27 documents in the department enquiry to establish the factum of misconduct of the petitioner as alleged. It is well settled that a writ court would not enter into sufficiency or adequacy of evidence leading to a finding of misconduct. It is only to ascertain whether the findings are perverse to the evidence or the case was one of no evidence. I am afraid that such a situation does not obtain in the present case. Reliance by the petitioner's counsel on the case of G.M. Tank v. State of Gujarat (supra) is of no avail. It is only to ascertain whether the findings are perverse to the evidence or the case was one of no evidence. I am afraid that such a situation does not obtain in the present case. Reliance by the petitioner's counsel on the case of G.M. Tank v. State of Gujarat (supra) is of no avail. The aforesaid case was one of clear acquittal/exoneration of the delinquent officer in a criminal case where facts and evidence were identical to facts and evidence in the departmental enquiry. No clear/honorable acquittal, exoneration or the trial court holding that the case before it was of no evidence, obtains in the instant case. As earlier recorded the acquittal was on technical ground and benefit of doubt as the prosecution evidence did not meet the standard of proof beyond reasonable doubt. It was not required in the departmental enquiry into the charges of misconduct against the petitioner to technically establish the ingredients of offence under Section 294 IPC or for that matter of Sections 6 and 7 of the PITA Act. Aside of technical issue of criminality for an offence, non grant of sanction for prosecution of the petitioner by the state government and purported contradiction in prosecution evidence entailed the petitioner's acquittal. None of which was relevant to the departmental enquiry. In the departmental enquiry the evidence of department's witnesses and documents more than sufficed to prove the guilt of the petitioner for the misconduct alleged. 7. I am of the considered view that in the facts of the case no ground for interference with the petitioner's removal from service vide order dated 24-5-2007 affirmed in appeal vide order dated 11-2-2008 and Review vide order dated 25-2-2011 is made out. 8. There is no force in the petition. Dismissed.