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2020 DIGILAW 315 (GAU)

Dipak Kumar Muktiar v. State Of Assam

2020-03-02

ACHINTYA MALLA BUJOR BARUA

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JUDGMENT 1. Heard Mr. MH Choudhury, learned counsel for the petitioner and Mr. D. Nath, learned Additional Senior Government Advocate for the respondent authorities. 2. The petitioner, who served as a AB Constable in the Assam Police, was issued a show cause notice dated 27.04.2003 under Section 7 of the Police Act, 1861 read with Rule 66 of the Assam Police Manual Part-III and further read with Article 311 of the Constitution of India requiring him to show cause as to why he should not be held to be unfit for being retained in a disciplined force. Statement of allegation against the petitioner is as follows:- 'Hav/Dipak Muktiar while he was posted at Morigaon Police Reserve Arms Kote as Armourer he could not give satisfactory account as to the where abouts of 5 nos of 9 mm B/Pistol with one magazine cach and 285 rounds of live 9 mm ammunitions during the physical verification of Arms kote on 25.03.2003 by the addl.S.P(H.Q) Morigaon. As such it is found that he was very much negligent in his duty i.e. keeping of proper physical accounts Arms and ammunitions of the Armoury which had led to the less of such valuable Govt. properties. Further it is seen from the morning report of Arms and ammunitions that he prepared the morning report of Arms and ammunitions and signed daily since long. But from 4.3.2003 to 15.3.2003 and 17.3.2003 to 24.3.2003 he did not sign the same though he was on duty. Being a senior Armourer, he willfully avoided from signing the morning report and allowed his junior armourer to sign it. There is sufficient reason to believe that the said arms and ammunitions were misappropriated by him and to protect himself from the charge, he willfully did not sign the morning report from 4.3.2003 to 15.3.2003 and 17.3.2003 to 24.3.2003 and allowed his junior to sign. All the acts tantamount to gross negligence, misconduct and dereliction of duty and liable for stern departmental action.' 3. The statement of allegation against the petitioner was that he could not give a satisfactory account as regards the whereabout of 07(seven) numbers of 9 mm B/ pistols with one magazine cach and 285 rounds of live 9 mm ammunition during the physical verification of the arms kote that took place on 25.03.2003. The statement of allegation against the petitioner was that he could not give a satisfactory account as regards the whereabout of 07(seven) numbers of 9 mm B/ pistols with one magazine cach and 285 rounds of live 9 mm ammunition during the physical verification of the arms kote that took place on 25.03.2003. Further allegations were also that he had prepared the morning report of arms and ammunition and signed it daily, but from 04.03.2003 to 15.03.2003 and 17.03.2003 to 24.03.2003, he had not signed the arms register although he was on duty. 4. In response thereof, the petitioner submitted his written statement taking the stand that he had not misappropriated the 07(seven) numbers of 9 mm pistol with magazine and ammunitions. He further takes the stand that there was no separate work place for the arms kote and he had to work along with some other constables who were entrusted with duties other than the duties entrusted to the petitioner. 5. In the resultant process, an enquiry was conducted and an enquiry report dated 04.02.2004 was submitted. The petitioner was also served a second show cause notice dated 25.07.2004 by providing him with the enquiry report and thereafter the order dated 10.07.2004 was passed by the Superintendent of Police, Morigaon, Assam dated 09.07.2004, by which the findings in the enquiry report was accepted and the petitioner was found guilty of charges against him under section 7 of the Police Act 1861 read with Rule 66 of the Assam Police Manual Part-III and Article 311 of the Constitution of India, which had rendered him unfit to remain in a disciplined force like the police. Accordingly, punishment for removal from service was inflicted. The order of removal from service dated 10.07.2004 is assailed in this writ petition. 6. The sole ground taken by Mr. MH Choudhury, learned counsel for the petitioner is that on the same set of allegation, a criminal proceeding was also initiated against the petitioner being Sessions Case No.114/2006 in the Court of the learned Assistant Sessions Judge, Morigaon under Sections 120A/121A/409/380/411 IPC. In the said proceeding, upon discussing the evidence on record, the criminal Court arrived at its conclusion that the accused persons therein, amongst others, the petitioner, was not guilty under Sections 120A/121A/380/409/411 IPC and accordingly they were set at liberty. In the said proceeding, upon discussing the evidence on record, the criminal Court arrived at its conclusion that the accused persons therein, amongst others, the petitioner, was not guilty under Sections 120A/121A/380/409/411 IPC and accordingly they were set at liberty. It is the contention of the learned counsel for the petitioner that in view of the acquittal in the criminal proceeding, the petitioner is also entitled for an interference with the order of removal dated 10.07.2004. For the purpose, Mr. Choudhury, learned counsel for the petitioner relies upon the pronouncement of the Supreme Court in Capt.M. Paul Anthony -vs- Bharat Gold Mines Ltd and another, reported in (1999) 3 SC 679. In paragraphs 34, 35 and 36 of the said judgment, it had been held as follows:- '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 appellants residence and recovery of incriminating articles therefrom. The findings recorded by the enquiry 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 enquiry officer and the enquiry 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. 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. 36. For the reasons stated above, the appeal is allowed, the impugned judgment passed by the Division Bench of the High Court is set aside and that of the learned Single Judge, insofar as it purports to allow the writ petition, is upheld. The learned Single Judge has also given liberty to the respondents to initiate fresh disciplinary proceedings. In the peculiar circumstances of the case, specially having regard to the fact that the appellant is undergoing this agony since 1985 despite having been acquitted by the criminal Court in 1987, we would not direct any fresh departmental enquiry to be instituted against him on the same set of facts. The appellant shall be reinstated forthwith on the post of Security Officer and shall also be paid the entire arrears of salary, together with all allowances from the date of suspension till his reinstatement, within three months. The appellant would also be entitled to his cost which is quantified at Rs.15,000/-. 7. By relying upon the propositions laid down by the Supreme Court in M. Paul Anthony (supra), the learned counsel for the petitioner states that in the instant case also the petitioner was acquitted of all the criminal charges as because the prosecution witnesses could not prove the charges against the petitioner and in the departmental proceeding also as the authority had relied on the same set of witnesses, therefore, even the conclusion in the departmental proceeding should also be interfered. 8. 8. In order to arrive at our conclusion as regards the contention raised by the learned counsel for the petitioner by relying upon the pronouncement of M. Paul Anthony (supra), we examine the statement of allegations made against the petitioner in the departmental proceeding and compare it to the charges that were made against the petitioner in the criminal proceeding. Further, we also look into the witnesses that were relied upon in the departmental proceeding and that of the criminal proceeding. As already taken note, the allegation against the petitioner in the departmental proceeding was that when a physical verification in the arms kote was made on 25.03.2003, 07(seven) numbers of 9 mm pistols with one magazine and 285 rounds of ammunitions were found missing. The petitioner being the cleaner of the arms kote was accordingly charged with gross misconduct, negligence and derelictions of duty, which makes him unfit to be retained in a disciplined force. On the other hand, the charges against the petitioner as discernible from the judgment dated 11.05.2012 in Sessions Case No.411/2006 is as follows:- (i) Whether the accused persons entered into an agreement to misappropriate the missing arms and ammunitions of Morigaon Police Reserve Arms Kote and also for selling those to unlawful organization and thereby committed an offence punishable U/s 120A IPC? (ii) Whether the accused persons conspired to wage War against the Govt. of India and thereby committed an offence punishable U/s 121A IPC? (iii) Whether the accused persons entrusted with arms and ammunition of Morigaon Police Reserve Arms Kote, committed breach of trust in respect of that property and thereby committed an offence punishable U/s 409 IPC? (iv) Whether the accused persons committed theft of Arms and Ammunitions from Morigaon Police Reserve Arms Kote and thereby committed an offence punishable U/s 380 IPC? 9. It is apparent from the criminal charges that the charges against the petitioner were misappropriation of missing arms and ammunitions from the Morigaon Police Reserve Arms Kote, conspiracy to wage war against the Government of India, breach of trust in respect of the entrusted arms and weapons and committing theft of arms and ammunitions. 9. It is apparent from the criminal charges that the charges against the petitioner were misappropriation of missing arms and ammunitions from the Morigaon Police Reserve Arms Kote, conspiracy to wage war against the Government of India, breach of trust in respect of the entrusted arms and weapons and committing theft of arms and ammunitions. A comparison of the charges/allegations in the departmental proceeding and that of the criminal proceeding would show that in the criminal proceeding, a positive charge was made as regards theft, breach of trust, misappropriation of arms and ammunitions as well as waging war against the Government of India, but in the departmental proceeding, the charge was of negligence and dereliction of duty, which resulted in 07(seven) numbers of 9 mm pistols with one magazine and 285 rounds of live ammunitions going missing from the arms kote. The standard of the proof and the requirement of the evidence, in our considered view, would be different in the departmental proceeding where only the event of there being a physical verification of the arms and the arms being not found is required to be proved whereas in the departmental proceeding, the requirement of proof would be that the petitioner had committed the offence of theft, breach of trust, misappropriation of arms and waging war against the Government of India. The nature of the requirement of proof being totally different, it cannot on its own be said that merely because the petitioner was acquitted in the criminal proceeding, therefore, the order of removal in the disciplinary proceeding is also required to be interfered. 10. In case of M. Paul Anthony (supra), which was referred by the petitioner, the factual situation was different inasmuch as, there was a raid conducted in the residence of M. Paul Anthony resulting in a criminal proceeding as well as a departmental proceeding and the requirement of the proof that was required therein was, amongst others, whether the raid itself was conducted at all. In the criminal proceeding, based on the evidence, a conclusion was arrived that no raid was conducted. In that circumstance, it was held that in a disciplinary proceeding, a different view cannot be taken on the question of whether the raid was conducted or not. In the criminal proceeding, based on the evidence, a conclusion was arrived that no raid was conducted. In that circumstance, it was held that in a disciplinary proceeding, a different view cannot be taken on the question of whether the raid was conducted or not. In other words, the requirement of proof in the criminal proceeding as well as in the departmental proceeding in M. Paul Anthony (supra) was one and the same. But in the instant case, as already concluded above, the requirement of proof in the departmental proceeding and that of the criminal proceeding were greatly different from one another. Accordingly, we are unable to accept the contention of the petitioner that based upon the pronouncement in M. Paul Anthony (supra), the order of removal against the petitioner is also required to be interfered merely because the criminal proceeding had resulted in an acquittal. 11. We also take note of that in para 44 of the judgment dated 11.05.2012 in Sessions Case No.114/2006 being the criminal proceeding, the petitioner had the benefit of doubt to the extent that the learned Court arrived at its conclusion that the prosecution story is not free from infirmity and inconsistency and it is not that the charges made against the petitioner were found to be wholly incorrect or false. 12. Mr. MH Choudhury, learned counsel also relies upon a judgment of this Court dated 12.03.2014 in WP(C) No.4598/2007 and WP(C) No.4600/2007, in which the orders of the disciplinary authority in respect of two other persons, who were also there along with the petitioner in respect of the same incident were interfered by this Court. 13. Firstly, we notice that the said judgment and order was dated 12.03.2014, whereas the writ petition by the petitioner itself was of the year 2014 i.e. after the earlier judgment of this Court and secondly one of the reasons for interference in the other writ petitions was that there were materials on record before the disciplinary authority that the weapon concerned were stolen by the head armourer Dipak Muktiar i.e. the present petitioner and such materials were not taken into consideration by the disciplinary authority in respect of the other two persons. 14. From the said point of view, the benefit of the judgment dated 12.03.2014 in favour of the other persons would also not be available to the present petitioner. 15. 14. From the said point of view, the benefit of the judgment dated 12.03.2014 in favour of the other persons would also not be available to the present petitioner. 15. For all the reasons stated above, we do not find any merit in the writ petition and the same stands dismissed. Interim order, if any, stands vacated.