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2023 DIGILAW 2816 (ALL)

Keshav Dev v. State of U. P.

2023-12-14

AJIT KUMAR

body2023
JUDGMENT : 1. Heard Sri Sanjay Maurya, learned counsel for the petitioner and Sri P.K. Srivastava, learned Additional Chief Standing Counsel for the Stat respondents. 2. The petitioner is aggrieved by the order of disciplinary authority imposing major penalty of dismissal from service vide order dated 19th March, 2020 and appellate order dated 20th August, 2020. 3. It is submitted that on the point of findings returned in the enquiry officer's report bringing home the charge against the petitioner regarding alleged incident where one Kanhaiya Lal was robbed by the petitioner of Rs. 4 lacs and odd that he was carrying in pocket. Except for the statement of his friend, namely Bobby @ Gopal Sharma who accompanied him, there was no other evidence available to the enquiry officer, intrinsic enough, on the touchstone of principles of preponderance of probability, to hold petitioner guilty of the charge. 4. It is next submitted that charges the were levelled against petitioner were same as alleged in the first information report lodged by the victim Kanhaiya Lal five days after the alleged incident. 5. It is also submitted that except the statement of Kanhaya Lal, the main victim and Gopal Sharma his friend no other statement got recorded by the Inquiry Officer so as to corroborate charge leveled in the chargesheet, inasmuch as Gopal Sharma showed his innocence regarding alleged loot conducted upon complainant Kanhiya Lal for a specific sum of Rs. 4 lacs and odd. 6. Besides above, the argument advanced by learned counsel for the petitioner is that second show cause notice that was issued on 30.12.2018 based upon the enquiry report, was in respect of proposed punishment for reverting the petitioner to the basic pay of the pay-scale as admissible to the post of constable. The petitioner did question the enquiry report, but his reply was keeping in mind the proposed punishment, however, instead of awarding punishment of reversion, a harsh penalty of termination from service has got awarded by the disciplinary authority, which according to him is an arbitrary exercise of power that too without assigning any special reason as to why the authority acted contrary to its earlier show cause notice. He submits that there was no further show cause notice issued to him for change in the proposed punishment and departmental appeal was decided in a routine manner affirming the decision of the disciplinary authority without considering this aspect of the matter. 7. Learned Advocate appearing for the petitioner has further argued before this Court that since charge levelled in the departmental enquiry was based upon the allegations made in the first information report, the departmental enquiry ought to have awaited for the outcome of the criminal trial but instead, it proceeded on its own relying upon the statements of those very persons whose testimony was to be recorded in the criminal trial. He submits that the trial court virtually disbelieved the statements made as it did not find there to be sufficient evidence in support of charge, and thus gave him a clean chit by acquitting him in the criminal case vide final judgment and order dated 31st July, 2023 and even directed for proceeding against Nagesh @ Kanhaiya, the main complainant to be proceeded with under Section 344 of the Cr.P.C., 1973. 8. Learned Standing Counsel on the contrary has argued that merely because accused has been acquitted in criminal trial, he could not be said to deserve automatic exoneration in the departmental enquiry as well. He submits that principle that evidence be such that guilt is proved to the hilt as required in criminal law, is not attracted in the disciplinary proceedings and enquiry officer is not required to go for such a sound and strict proof of evidence. He submits that the principle of 'preponderance of probability' is the guiding principle in matters of departmental enquiry and enquiry officer after evaluating and appreciating evidence before it, can conclude that charges were made out to hold delinquent employee guilty. 9. Learned Additional Chief Standing Counsel has cited many authorities on the point of interference by this Court in matter of disciplinary proceedings. 10. Having heard learned counsel for the respective parties and their arguments raised across the bar and having perused the records, I find there to be no quarrel regading scope of interference in the matter of departmental enquiry but the issue is whether prescribed procedure has been followed or not. 10. Having heard learned counsel for the respective parties and their arguments raised across the bar and having perused the records, I find there to be no quarrel regading scope of interference in the matter of departmental enquiry but the issue is whether prescribed procedure has been followed or not. The law is also well settled that while exercising jurisdiction under Article 226 of the Constitution of this Court would not ordinarily go for appreciation of evidence recorded by enquiry officer and wherever the question arises as to evaluation/appreciation and assessment of evidence it will not be done by either court or tribunal. This Court will certainly not act like an appellate authority to form a different view by reappreciating evidence. The enquiry officer of course, would be examining only evidence produced before it and the statement of witnesses. While it is true that the departmental enquiry could have been deferred in view of regulations 498 of of the U.P. Police Regulation to wait for the outcome of criminal trial but in case if departmental enquiry has proceeded with, it cannot be said to be bad on this count alone. Very recently the Supreme Court in the case of Union of India and Others v. Subrata Nath (Civil Appeal Nos. 7939-7940 of 2022) decided on 23.11.2022 has taken this view and speaking for bench, Justice Hima Kohli summed up legal position as under : "22. To sum up the legal position, being fact finding authorities, both the Disciplinary Authority and the Appellate Authority are vested with the exclusive power to examine the evidence forming part of the inquiry report. On finding the evidence to be adequate and reliable during the departmental inquiry, the Disciplinary Authority has the discretion to impose appropriate punishment on the delinquent employee keeping in mind the gravity of the misconduct. However, in exercise of powers of judicial review, the High Court or for that matter, the Tribunal cannot ordinarily reappreciate the evidence to arrive at its own conclusion in respect of the penalty imposed unless and until the punishment imposed is so disproportionate to the offence that it would shock the conscience of the High Court/Tribunal or is found to be flawed for other reasons, as enumerated in P. Gunasekaran (supra). If the punishment imposed on the delinquent employee is such that shocks the conscience of the High Court or the Tribunal, then the Disciplinary/Appellate Authority may be called upon to re-consider the penalty imposed. Only in exceptional circumstances, which need to be mentioned, should the High Court/Tribunal decide to impose appropriate punishment by itself, on offering cogent reasons therefor." 11. Thus in the event findings are not perverse, only area open for interference would be where issue is relating to procedure whether followed or not during departmental enquiry and in the process of finalization of a disciplinary proceeding. 12. Supreme Court in the case of State of U.P. v. Kharak Singh (2008) 8 SCC 236 vide paragraphs 18 and 19 have held thus : "18. Another infirmity in the report of the enquiry officer is that he concluded the enquiry holding that all the charges have been proved and he recommended for dismissal of the delinquent from service. The last paragraph of his report dated 16.11.1985 reads as under:- "During the course of above inquiry, such facts have come into light from which it is proved that the employee who has doubtful character and does not obey the order, does not have the right to continue in the government service and it is recommended to dismiss him from the service with immediate effect." (emphasis supplied) Though there is no specific bar in offering views by the enquiry officer, in the case on hand, the enquiry officer exceeded his limit by saying that the officer has no right to continue in the government service and he has to be dismissed from service with immediate effect. 19. As pointed out above, awarding appropriate punishment is the exclusive jurisdiction of the punishing /disciplinary authority and it depends upon the nature and gravity of the proved charge/charges and other attended circumstances. It is clear from the materials, the officer, who inspected and noted the shortfall of trees, himself conducted the enquiry, arrived at a conclusion holding the charges proved and also strongly recommended severe punishment of dismissal from service. The entire action and the course adopted by the enquiry officer cannot be accepted and is contrary to the well-known principles enunciated by this Court." 13. Thus the enquiry officer could not have proposed a punishment and, so to that extent, enquiry report is liable to be held bad. 14. The entire action and the course adopted by the enquiry officer cannot be accepted and is contrary to the well-known principles enunciated by this Court." 13. Thus the enquiry officer could not have proposed a punishment and, so to that extent, enquiry report is liable to be held bad. 14. Now coming to the enquiry report on the question of guilt being proved, I find that enquiry report was sought in respect of the charges that were levelled in the chargesheet, which was based upon the same allegations as contained in the first information report regarding robbering of Kanhaiya Lal Mishra for Rs.4,25,000/- on the fateful day i.e. 17.12.2016. Besides the fact that petitioner stood finally acquitted in the criminal trial in the matter of offence punishable under Section 392 and 120B of IPC in connection with criminal case no. 422 of 2016, I find that in the departmental enquiry as charges were not proved. After holding detailed deliberation upon charges and the oral statements recorded by the enquiry officer during course of the enquiry, the enquiry report categorically records that the statements of the departmental witnesses and charged constables that they gave in their defence, nothing intrinsic as concrete and relevant facts has come out from which it can be held that charged officials were guilty of the charges. The finding part of the enquiry report is reproduced hereunder : 15. From further reading of the enquiry report, I find that in the penultimate paragraph of the report, the enquiry officer has simply referred to the various dates when the first information report was got registered, when the varies of registration of the first information report, arrest of the delinquent employee and then his release and consequential absence from the duty. Further in the concluding part of the enquiry report which is final finding which can be said instead of holding the petitioner to be guilty of charges, the only opinion has been expressed by the enquiry officer that petitioner deserved to be reverted to the basic pay on the admissible post for three years and no payment of salary for the period they had remained absent from the duty on the principle of ‘no work no pay’. The relevant conclusion part of the enquiry report is reproduced hereunder : 16. The relevant conclusion part of the enquiry report is reproduced hereunder : 16. Thus, it is very much clear that charges could not be brought home by the enquiry officer, however agreeing with recommendation made by the enquiry officer in his report for the punishment, the said punishment in the nature of reversion of three years to the basic pay of post was agreeing by the disciplinary authority and accordingly show cause notice was issued. Reason to agreeing with proposed punishment of enquiry officer has been disclosed to be the findings arrived in the preliminary enquiry report held in the matter prior to issuance of chargesheet. Even though, the petitioner submitted his reply to the show cause notice which was detailed reply, however in one line, it was held to be not satisfactory and the disciplinary authority has proceeded to refuse punishment by decision taken on 10.06.2019 on same day show cause notice was issued to which again petitioner had replied and then reply was rejected and final punishment dismissal from service was ordered on 19th March, 2020. 17. Looking to the finding part of the enquiry report, I am not able to sustain the show cause notice not only the subsequent one but even the earlier one. Once findings could not bring home the charges in the final enquiry report, the disciplinary authority could have ordered either for fresh enquiry or it could have recorded the reasons to disagree with report, but disagreeing with report on the ground that there was preliminary enquiry holding petitioner guilty is absolutely untenable. Preliminary fact finding enquiry is always a summary enquiry which lays basis for full fledged enquiry for the major penalty if the disciplinary authority so decides and the moment a final enquiry comes after holding detailed enquiry, preliminary fact finding enquiry becomes absolutely insignificant and irrelevant. Thus, even the first show cause notice for proposed punishment is not sustainable for want of valid reasons. 18. I may also here consider the case of the petitioner from the point of view that charges of alleged robbery by the police officers in conspiracy against victim was pure criminal charge, which required strict proof under criminal law. The evidence that could have been led in the criminal trial by the prosecution in the form of oral testimonies were the same as in the departmental enquiry. The evidence that could have been led in the criminal trial by the prosecution in the form of oral testimonies were the same as in the departmental enquiry. Petitioner has been acquitted in the criminal trial and even in the departmental enquiry also after examining those witnesses, crucial of them was the Gopal Sharma @ Bobby who denied about money robbery in his statement and even recovery of Rs.20,000/- that was shown from him was in the absence of any independent witness and so offence of robbery could not be proved. In total circumspect of events that have taken place with lodging of the first information report, then criminal trial and also departmental proceedings I find, except for the witness Gopal Sharma who was the only eye witness account, there was no intrinsic material to establish the charge and even this eye witness account did not corroborate the incident. 19. Some evidence was led in departmental enquiry and enquiry officer was not able to bring home the charge. Thus in my considered view, the disciplinary authority was not justified in issuing show cause notice without recording its independent reasons for disagreeing with findings on charges recorded in enquiry report in which petitioner was not found guilty. The first show cause notice, therefore, was not sustainable. The appellate authority and revisional authorities have proceeded to affirm order of disciplinary authority without holding all those aspects of the matter as discussed in the judgment. 20. There is no such finding returned in the order dated 10.06.2019 to justify the action of respondent disciplinary authority to revise punishment to the prejudice of the petitioner and resultant second show cause notice. In my considered view, therefore, the second show cause notice dated 10.06.2019 stands vitiated. The penultimate paragraph of the order in which view has been expressed regarding reply of the petitioner to be not found satisfactory and then to consider imposition of higher degree of punishment is reproduced hereunder : 21. Thus, there is no independent finding for revising the punishment and yet the appellate authority has acted mechanically in the matter and so also revisional authority while affirming the order passed by the disciplinary authority, whereas it was required to examine correctness in the approach of the disciplinary authority concerned in the matter of imposition of punishment. Thus, there is no independent finding for revising the punishment and yet the appellate authority has acted mechanically in the matter and so also revisional authority while affirming the order passed by the disciplinary authority, whereas it was required to examine correctness in the approach of the disciplinary authority concerned in the matter of imposition of punishment. The authority to issue second show cause notice was itself to be seen with reference to provision through which it could have traced administrative power for this purpose. It is necessary to go into relevant provision as contained under of U.P Police Officers of Subordinate Rank (Punishment and Appeal) Rules, 1991. Rule 14 of Rules, 1991 reads as under : "14. Procedure for conducting departmental proceedings.- (1) Subject to the provisions contained in these Rules. The departmental proceedings in the cases referred to in sub-rule (1) of Rule 5 against the Police Officers may be conducted in accordance with the procedure laid down in Appendix I. (2) Notwithstanding anything contained in sub-rule (1) punishments in cases referred to in sub-rule (2) of Rule 5 may be imposed after informing the Police Officer in writing of the action proposed to be taken against him and of the imputations of act or omission on which it is proposed to be taken and giving him a reasonable opportunity of making such representation as he may wish to make against the proposal. (3) The charged Police Officer shall not be represented by Counsel in any proceedings instituted under these rules." 22. From a bare reading of the aforesaid provisions, it is clear that once a show cause notice has been issued, there is no further provision to issue a second show cause for imposing higher degree of punishment. 23. Coming to the argument advanced by learned Standing Counsel and the judgments cited by him, I do not find there to be any doubt to form a view regarding proposition of law laid down by the Supreme Court in the matter of scope of interference by this Court in departmental proceedings under Article 226 of the Constitution, but question remains regarding arbitrariness if detected in the exercise for discretion by authority and that too a discretionary exercise without applying procedure prescribed and rendering of due application of mind. If such an action is sustained in law, it would lead to miscarriage of justice. If such an action is sustained in law, it would lead to miscarriage of justice. This Court in exercise of equitable jurisdiction under Article 226 of the Constitution of India, therefore, will certainly not hesitate in interfering in matter of such exercise of discretion by the authority which is arbitrary or at whims. Wade and Forsyth in their celebrated work "Administrative Law" refer to the everlasting Halsbury's principle on administrative law qua exercise of discretion and quotes Coke's words “For discretion is a science or understanding to discern between falsity and truth, between wrong and right, between shadows and substance, between equity and colourable glosses and pretences, and not to do according to their wills and private affections; for as one saith, talis discretio discretionem confundit.” (Administrative Law Wade & Forsyth 10th Edition P. 294) 24. The State authorities while acting under statutory rules have to be very careful in exercising their discretion and every of their actions must be well informed one and well fortified within the four corners of procedure prescribed under the relevant rules. And I find the orders impugned to fail on the above test. 25. Now coming to the issue of penalty in the departmental enquiry, I find that in matters of departmental enquiry where the charges are same as in case of criminal trial and evidence led is also same, there has been departure from the settle principle of law that even in cases of acquittal, departmental enquiry may go on. 26. Discussing various authorities on the point in the case of G.M. Tank v. State of Gujarat and Others (2006) 5 SCC 446 , Supreme Court has very categorically held that where witnesses were examined as in the criminal case and the criminal court held that after examination of such witnesses that prosecution failed to prove the guilt beyond reasonable doubt and acquitted the accused by way of judicial pronouncement, it would be unjust and unfair and rather oppressive to allow contrary findings recorded by the departmental proceeding, to stand. Vide paragraph 30 of the judgment, the Court held thus : 30. The judgments relied on by the learned counsel appearing for the respondents are distinguishable on facts and on law. Vide paragraph 30 of the judgment, the Court held thus : 30. The judgments relied on by the learned counsel appearing for the respondents are distinguishable on facts and on law. In this case, the departmental proceedings and the criminal case are based on identical and similar set of facts and the charge in a departmental case against the appellant and the charge before the criminal court are one and the same. It is true that the nature of charge in the departmental proceedings and in the criminal case is grave. The nature of the case launched against the appellant on the basis of evidence and material collected against him during enquiry and investigation and as reflected in the charge-sheet, factors mentioned are one and the same. In other words, charges, evidence, witnesses and circumstances are one and the same. In the present case, criminal and departmental proceedings have already noticed or granted on the same set of facts, namely, raid conducted at the appellant's residence, recovery of articles therefrom. The Investigating Officer Mr. V.B. Raval and other departmental witnesses were the only witnesses examined by the enquiry officer who by relying upon their statement came to the conclusion that the charges were established against the appellant. The same witnesses were examined in the criminal case and the criminal court on the examination came to the conclusion that the prosecution has not proved the guilt alleged against the appellant beyond any reasonable doubt and acquitted the appellant by its judicial pronouncement with the finding that the charge has not been proved. It is also to be noticed that the judicial pronouncement was made after a regular trial and on hot contest. Under these circumstances, it would be unjust and unfair and rather oppressive to allow the findings recorded in the departmental proceedings to stand. 27. The above authority has further been relied upon by the Supreme Court in the case of State Bank of Hyderabad and Another v. P. Kata Rao (2008) 15 SCC 657 , wherein the appeal was filed by the State Bank of Hyderabad against the judgment of the division bench of Andhra Pradesh High Court which upheld the judgment of the Single Judge in which learned Single Judge allowed writ petition against order of dismissal from service. Learned Single Judge while deciding the matter and directing for notice had observed that findings in criminal trial may not be binding but required reconsideration. Supreme Court in SLP filed by State Bank of Hyderabad referred the judgment in G.M. Tank case and affirmed this view of the High Court. 28. Very recently in the case of Ram Lal v. State of Rajasthan and Others being in Civil Appeal No. 7935 of 2023 (arising out of SLP (C) No. 33423 of 2018) decided on 4th December, 2023, the Court observed that where the charges in criminal trial, the departmental proceedings based upon the same allegations and same evidence the case is liable to be led as criminal case in the departmental proceeding the matter acquire different dimension. Discussing legal position, Vide paragraphs 11,12, and 13, the Court held thus : “11. We have examined both the questions independently. We are conscious of the fact that a writ court's power to review the order of the Disciplinary Authority is very limited. The scope of enquiry is only to examine whether the decision-making process is legitimate. [See State Bank of India v. A.G.D. Reddy, 2023 : INSC : 766 : (2023) 11 Scale 530]. As part of that exercise, the courts exercising power of judicial review are entitled to consider whether the findings of the Disciplinary Authority have ignored material evidence and if it so finds, courts are not powerless to interfere. [See United Bank of India v. Biswanath Bhattacharjee, (2022) 13 SCC 329 : 2022 INSC 117] 12. We are also conscious of the fact that mere acquittal by a criminal court will not confer on the employee a right to claim any benefit, including reinstatement. (See Deputy Inspector General of Police v. S. Samuthiram, (2013) 1 SCC 598 ). 13. However, if the charges in the departmental enquiry and the criminal court are identical or similar, and if the evidence, witnesses and circumstances are one and the same, then the matter acquires a different dimension. If the court in judicial review concludes that the acquittal in the criminal proceeding was after full consideration of the prosecution evidence and that the prosecution miserably failed to prove the charge, the Court in judicial review can grant redress in certain circumstances. If the court in judicial review concludes that the acquittal in the criminal proceeding was after full consideration of the prosecution evidence and that the prosecution miserably failed to prove the charge, the Court in judicial review can grant redress in certain circumstances. The court will be entitled to exercise its discretion and grant relief, if it concludes that allowing the findings in the disciplinary proceedings to stand will be unjust, unfair and oppressive. Each case will turn on its own facts. [See G.M. Tank v. State of Gujarat, (2006) 5 SCC 446 , State Bank of Hyderabad v. P. Kata Rao, (2008) 15 SCC 657 and S. Samuthiram (supra)]” 29. Further discussing disciplinary proceedings in respect of the case in hand, the Court discussed the prosecution witnesses testimony led in the departmental proceedings and then also discussed the effect of acquittal in the criminal case and the ultimate findings returned by the trial judge and then held that in the face of findings returned on the charges, the departmental disciplinary proceedings and the orders passed therein could not be sustained in law. Vide paragraph 28, 29 and 30, the Court held thus : 28. Expressions like “benefit of doubt” and “honorably acquitted”, used in judgments are not to be understood as magic incantations. A court of law will not be carried away by the mere use of such terminology. In the present case, the Appellate Judge has recorded that Exh. P-3, the original marksheet carries the date of birth as 21.04.1972 and the same has also been proved by the witnesses examined on behalf of the prosecution. The conclusion that the acquittal in the criminal proceeding was after full consideration of the prosecution evidence and that the prosecution miserably failed to prove the charge can only be arrived at after a reading of the judgment in its entirety. The court in judicial review is obliged to examine the substance of the judgment and not go by the form of expression used. 29. We are satisfied that the findings of the appellate judge in the criminal case clearly indicate that the charge against the appellant was not just, “not proved” - in fact the charge even stood “disproved” by the very prosecution evidence. 29. We are satisfied that the findings of the appellate judge in the criminal case clearly indicate that the charge against the appellant was not just, “not proved” - in fact the charge even stood “disproved” by the very prosecution evidence. As held by this Court, a fact is said to be “disproved” when, after considering the matters before it, the court either believes that it does not exist or considers its non-existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it does not exist. A fact is said to be “not proved” when it is neither “proved” nor “disproved” [See Vijayee Singh v. State of U.P., (1990) 3 SCC 190 ]. 30. We are additionally satisfied that in the teeth of the finding of the appellate Judge, the disciplinary proceedings and the orders passed thereon cannot be allowed to stand. The charges were not just similar but identical and the evidence, witnesses and circumstances were all the same. This is a case where in exercise of our discretion, we quash the orders of the disciplinary authority and the appellate authority as allowing them to stand will be unjust, unfair and oppressive. This case is very similar to the situation that arose in G.M. Tank (supra). 30. In so far as criminal trial is concerned in respect of present petitioner being sessions trial no. 381 of 2018 not only the accused persons including petitioner were acquitted giving them benefit of doubt but the Court has proceeded for institution of a case under Section 344 of the Cr.P.C. against complainant Nagesh @ Kanhaiya. The proceedings under Section 344 are to be instituted against a person who gives false evidence. The entire criminal case got instituted against petitioner and other persons only on the complaint of one Kanhaiya Lal and so also on that basis disciplinary proceeding was instituted. In the criminal trial, the Court having rejected all false evidence led by the prosecution witness Nagesh @ Kanhaiya directed for issuance of notice to him vide judgment dated 31st July 2023 Enquiry Officer in the departmental proceeding has also found charges not proved against the petitioner. Thus there was no occasion for the disciplinary authority to have issued notice for major penalty. 31. Thus there was no occasion for the disciplinary authority to have issued notice for major penalty. 31. Having not discussed anything on facts to justify disagreement with findings arrived in the enquiry report, the disciplinary authority is not justified in taking the view that petitioner deserved punishment of dismissal/termination even without charges being proved. Thus, I am not able to sustain show cause notices issued to the petitioner on 30.12.2018 and 10.06.2019 and so also the final order of punishment. 32. In view of the above, writ petition succeeds and is allowed. The order of dismissal dated 19th March, 2020, and the appellate authority and revisional order dated 20.08.2020 and 30.12.2020 as well as first and second show cause notices issued on 30.12.2018 and 10.06.2019 respectively are hereby quashed. 33. Consequences to follow. 34. The disciplinary authority is directed to reconsider the matter to take decision afresh on the basis of enquiry report, if it so wishes and desires.