1. Heard Sri Sushil Kumar Pal, learned counsel for the petitioner and Sri Deepak Verma, learned Additional Chief Standing Counsel for the State-respondents.
2. Departmental action was initiated against the petitioner by issuance of a show-cause notice dated 21.01.2009. Punishment was imposed upon the petitioner by order dated 09.03.2009 passed by the disciplinary authority. The petitioner took the order of punishment in appeal. The appellate authority rejected the appeal of the petitioner by order dated 09.07.2010. The petitioner carried the order of appeal in revision before the competent authority. The revisional authority dismissed the revision of the petitioner by order dated 28.09.2012
3. Thus aggrieved the petitioner has assailed the order dated 09.03.2009 passed by respondent no. 2, order dated 09.07.2010 passed by respondent no. 3 and the order dated 28.09.2012 passed by respondent no. 4 in the instant writ petition.
4. Learned counsel for the petitioner Sri Sushil Kumar Pal submits that the punishment imposed upon the petitioner is disproportionate to the misconduct the petitioner was charged with. The petitioner was not afforded any opportunity of hearing. He lastly contended that a F.I.R. was lodged in the matter. There was no reason to initiate departmental proceedings. Both the criminal and departmental proceedings cannot continue simultaneously. Moreover, a final report was submitted by the Investigating Officer in Case Crime No. 123 of 2001, under Sections 279, 337, 338 and 427 I.P.C. at Police Station Govind Nagar, District Kanpur. The petitioner thus stood absolved of the charges against him. Hence, there was no occasion to take the departmental action and impose the punishment upon him. He has relied on the judgment of the Hon'ble Supreme Court in the case of Capt. M. Paul Authority v. Bharat Gold Mines Ltd., reported at 1999 (3) SCC 679.
5. Sri Deepak Verma, learned Additional Chief Standing Counsel for the State submits that the orders were passed in strict adherence to principles of natural justice. The charges imposed upon the petitioner are grave in nature. The petitioner is in the police force. He is expected to maintain the highest standards of discipline and possess an abiding sense of responsibility. In the case at hand, the petitioner did not conform to such standards. Learned Additional Chief Standing Counsel contends that both criminal and civil proceedings can continue simultaneously. He has relied on a number of authorities to buttress his submissions. The authorities will be cited in the course of judgement.
6. Heard learned counsel for the parties.
7. The facts on which the controversy turns lie in a narrow compass. The facts relevant for the judgement in the instant writ petition are established beyond the pale of dispute.
8. A show-cause notice was issued to the petitioner on 21.01.2009, wherein the charges of misconduct were clearly laid out against the petitioner.
9. The show-cause notice dated 21.01.2009, records that the petitioner along with one constable Prem Chand (since deceased) with the intent of illegal extortion of money from a truck driver at the highway overtook the truck by speeding his motorcycle. The rash driving resulted in an accident. The pillion rider of the petitioner one constable Prem Chandra (since deceased) was grievously injured in the accident. He later succumbed to the injuries sustained in the accident. The petitioner abandoned his responsibility to reach the injured constable Prem Chand to Hospital and escaped from the place of occurrence.
10. A F.I.R. was lodged disclosing the offence of rash driving which resulted in death of Constable Prem Chandra. The F.I.R. was registered as Case Crime No. 123 of 2001, under Sections 279, 337, 338 and 427 I.P.C. at Police Station Govind Nagar, District Kanpur. A final report was submitted by the Investigating Officer after an investigation pursuant to the said F.I.R.
11. The petitioner tendered his reply to the show-cause notice refuting the charges laid out therein on 06.02.2009. In his defence, the petitioner submitted that a final report had been filed in the criminal case and he should be absolved of the charges in the show-cause notice.
12. The defence of the petitioner was considered by the disciplinary authority. The charges stood proved against the petitioner in the understanding of the disciplinary authority upon consideration of relevant materials in the record including the defence of the petitioner. The disciplinary authority rejected the defence of the petitioner and returned a finding that the petitioner had left the constable Prem Chandra (since deceased) in an injured state and made good his escape from the site of the accident. His conduct was unbecoming of a member of the uniformed force. After the indictment, the disciplinary authority imposed the penalty upon the petitioner degrading him to the lowest pay scale for a period of three years by order dated 09.03.2009.
13. Clearly a show-cause notice was issued to the petitioner wherein charges were laid out against him. The petitioner tendered his defence to the show-cause notice. The petitioner was duly afforded an opportunity of hearing.
14. The disciplinary authority passed a reasoned and speaking order indicting the petitioner of the charges laid out against him and imposed the punishment impugned in the instant writ petition.
15. The order imposing the punishment passed by the disciplinary authority was taken in appeal by the petitioner. The appellate authority adverted to the grounds of challenge raised in the appeal and also considered the material in the record. The appellate authority affirmed the order passed by the disciplinary authority and rejected the appeal. The order passed by the appellate authority was then taken in revision by the petitioner. A similar process of consideration of the grounds in the revision and the material in the record was repeated in the revision proceedings. The revisional authority also upheld the orders passed by the disciplinary authority and the appellate authority.
16. Thus by successive stages in separate proceedings, the concerned authorities independently applied their minds to the defence raised by the petitioner. Though the reasons imposing the punishment were reiterated but the consideration of the controversy was done independently at each stage of the proceedings.
17. In view of the discussion in the preceding paragraphs, this Court finds that due and full opportunity of hearing was provided to the petitioner before indicting him of the charges and imposing the punishment. No fault can be found in the procedure adopted by the authorities below while passing the orders impugned in the instant writ petition. The material on the foot of which the orders were passed cannot be impeached. The authorities below at all stages acted in conformity with the principles of natural justice and not in breach thereof.
18. The second argument is now required to be considered. The question is whether criminal prosecution and departmental proceedings on the same cause of action can be instituted and prosecuted simultaneously and also the effect of the final report in the criminal case entered by the Investigating Officer.
19. There is good authority to hold that departmental and criminal proceedings on the same cause of action can be instituted and prosecuted simultaneously. The authority rests on sound principles of judicial policy. The purpose of criminal prosecution and the object of departmental proceedings are entirely distinct. The criminal prosecution is instituted to check crime against the society at large and is intended to bring the offenders to justice. Criminal proceedings ensure that the society is purged of crime. At any rate crime against the society cannot go unpunished.
20. The departmental proceedings/departmental action are initiated to instill discipline amongst the employees, to ensure transparency in their functioning and accountability in their actions.
21. The sources of law vesting the power to institute criminal prosecution and bring departmental action are also separate and independent. Criminal proceedings arise out of statutory provisions, which clearly define the crime and the punishment. Criminal offences as well as punishment are defined by statutes. The departmental proceedings/departmental action are relatable to Service Regulations which govern and regulate the conduct of the departmental employees.
22. The consequences of criminal prosecution and the result of departmental proceedings/department action too stand in complete variance. Conviction of accused in criminal proceedings may result in imprisonment or jail terms for the offender. The departmental actions/proceedings result in imposition of punishment upon the delinquent employees.
23. The rules of evidence which are applicable to departmental proceedings as well as criminal proceedings are also different. The person being prosecuted for a criminal offence can be proven guilty in criminal proceedings only if the offence is proved beyond reasonable doubt. The standard of evidence employed in criminal proceedings is thus proof "beyond reasonable doubt".
24. In departmental proceedings the standard of evidence required to establish a fact is "preponderance as liability". The standard of evidence thus required to establish liability in departmental proceedings is only "preponderance of probability".
25. The legal narrative can now be fortified by reference to some judicial authorities in point.
26. In the case of Iqbal Singh Marwah and others Vs Meenakshi Marwah and others reported at 2005 (4) SCC 370, the Hon'ble Supreme Court while considering the different standards of evidence applicable to departmental and criminal proceedings stated the position of law in the following terms:-
"32. Coming to the last contention that an effort should be made to avoid conflict of findings between the departmental and criminal Courts, it is necessary to point out that the standard of proof required in the two proceedings are entirely different. departmental cases are decided on the basis of preponderance of evidence while in a criminal case the entire burden lies on the prosecution and proof beyond reasonable doubt has to be given.
There is neither any statutory provision nor any legal principle that the findings recorded in one proceeding may be treated as final or binding in the other, as both the cases have to be decided on the basis of the evidence adduced therein."
27. In the case of P. Swaroopa Rani Vs M. Hari Narayana, reported at 2008 (5) SCC 765 the Hon'ble Supreme Court emphasized that there is no embargo against continuance of departmental proceedings merely on account of pendency of criminal proceedings and categorically held;
"11. It is, however, well-settled that in a given case, departmental proceedings and criminal proceedings can proceed simultaneously. Whether departmental proceedings or criminal proceedings shall be stayed depends upon the fact and circumstances of each case."
28. In the case of Ajit Kumar Nag Vs General Manager (PJ), Indian Oil Corporation Ltd. Haldia and others, reported at (2005) 7 SCC 764, the Hon'ble Supreme Court held that the simultaneous continuance of departmental and criminal proceedings was permissible in law. The Hon'ble Supreme Court distilled the aforesaid proposition of law by delineating the purposes, objects and the procedures of criminal and departmental proceedings. The Hon'ble Supreme Court held thus;
"...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 offender, the purpose of enquiry proceedings is to deal with the delinquent departmentally and to impose penalty in accordance with 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 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."
29. In the case of State Bank of India and others Vs Neelam Nag and Another, reported at (2016) 9 SCC 491, the Hon'ble Supreme Court adopted an approach which was consistent with the above mentioned authorities. The Hon'ble Supreme Court re-emphasized that there was no blanket legal bar on continuing departmental and criminal proceedings simultaneous. The imperative to consider every case on its peculiar facts was restated. The Hon'ble Supreme Court in the case of Neelam Nag (supra) held thus:
"We have heard the learned Counsel for the parties at some length. The only question that arises for consideration, is no more res-integra. It is well-settled that there is no legal bar to the conduct of the disciplinary proceedings and criminal trial simultaneously. However, no straightjacket formula can be spelt out and the Court has to keep in mind the broad approach to be adopted in such matters on case to case basis. The contour of the approach to be adopted by the Court has been delineated in series of decisions. "
30. In the light of such settled judicial authority, the scope of criminal and departmental proceedings in the facts of the case may be examined.
31. Back to the facts of the case. The F.I.R. has not been brought in the record in the writ petition. Neither the final report entered in the court below is in the record of the instant writ petition.
32. This Court would not like to conjecture on the contents of the F.I.R. However, from the offences mentioned above in the F.I.R. as asserted in the writ petition, it appears that the criminal proceedings were initiated to investigate the charges of rash and negligent driving. The subject matter of action by the departmental authorities was entirely different. Hence, there is no relevance of the criminal proceedings to the penalty imposed upon the petitioner in the instant departmental proceedings.
33. It can be stated on good authority that an acquittal in a criminal case would not result in an automatic reinstatement of a delinquent employee or recall of punishment order against such employee. The proposition, however, shall be further fortified by specific precedents in point.
34. Learned counsel for the petitioner has relied upon a judgment of the Hon'ble Supreme Court in the case of Capt. M. Paul Anthony v. Bharat Gold Mines Ltd., reported at (1999) 3 SCC 679.
35. The Hon'ble Supreme Court considered the issue of simultaneous prosecution of a criminal proceeding and the continuance of departmental proceedings on the same issue. The Hon'ble Supreme Court in the case of Capt. M. Paul Anthony (supra) held thus:
"(i) Departmental proceedings and proceedings in a criminal case can proceed simultaneously as there is no bar in their being conducted simultaneously, though separately.
(ii) If the departmental proceedings and the criminal case are based on identical and similar set of facts and the charge in the criminal case against the delinquent employee is of a grave nature which involves complicated questions of law and fact, it would be desirable to stay the departmental proceedings till the conclusion of the criminal case.
(iii) Whether the nature of a charge in a criminal case is grave and whether complicated questions of fact and law are involved in that case, will depend upon the nature of offence, the nature of the case launched against the employee on the basis of evidence and material collected against him during investigation or as reflected in the charge-sheet.
(iv) The factors mentioned at (ii) and (iii) above cannot be considered in isolation to stay the departmental proceedings but due regard has to be given to the fact that the departmental proceedings cannot be unduly delayed.
(v) If the criminal case does not proceed or its disposal is being unduly delayed, the departmental proceedings, even if they were stayed on account of the pendency of the criminal case, can be resumed and proceeded with so as to conclude them at an early date, so that if the employee is found not guilty his honour may be vindicated and in case he is found guilty, the administration may get rid of him at the earliest."
36. The Hon'ble Supreme Court in the case of State Bank of Hyderabad v. P. Kata Rao, reported at (2008) 15 SCC 657, considered the law laid down in the case of Capt. M. Paul Anthony (supra).
37. The Hon'ble Supreme Court held that the acquittal in a criminal charge by itself would not debar a disciplinary authority from taking departmental action against an employee. The applicability of the principle, that, on the same set of facts the charged official shall not be proceeded against in a departmental enquiry and prosecuted in a criminal case simultaneously was made contingent on the facts of each case. The law was thus laid down by this Hon'ble Supreme Court in the case of State Bank of Hyderabad (supra):
"18.There cannot be any doubt whatsoever that the jurisdiction of superior courts in interfering with a finding of fact arrived at by the enquiry officer is limited. The High Court, it is trite, would also ordinarily not interfere with the quantum of punishment. There cannot, furthermore, be any doubt or dispute that only because the delinquent employee who was also facing a criminal charge stands acquitted, the same, by itself, would not debar the disciplinary authority in initiating a fresh departmental proceeding and/or where the departmental proceedings had already been initiated, to continue therewith.
20. The legal principle enunciated to the effect that on the same set of facts the delinquent shall not be proceeded in a departmental proceedings and in a criminal case simultaneously, has, however, been deviated from. The dicta of this Court in Capt. M. Paul Anthony v. Bharat Gold Mines Ltd. [(1999) 3 SCC 679 : 1999 SCC (L&S) 810] however, remains unshaken although the applicability thereof had been found to be dependent on the fact situation obtaining in each case."
38. The issue of the consequences of acquittal of an employee on the departmental proceedings again engaged the attention of the Hon'ble the Supreme Court in the case of Inspector General of Police v. S. Samuthiram, reported at (2013) 1 SCC 598. The law was laid down in unequivocal terms:
"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."
39. In the light of the preceding discussion, the action of the Investigating Officer to enter a final report before the trial court in the criminal case, does not in any way impeach the order of punishment assailed in the instant writ petition.
40. The next issue which was canvassed by the learned counsel for the petitioner was the disproportionality of the punishment imposed upon the petitioner in relation to the misconduct he was charged with and indicted of. The concept of proportionality essentially visualizes a graduated response to the nature of the misconduct and the role of a delinquent employee.
41. The "doctrine of proportionality" was introduced and embedded in the administrative law of our country by the Hon'ble Supreme Court in Ranjt Thakur Versus Union of India, reported at (1987) 4 SCC 611. The Hon'ble Supreme Court in Ranjit Thakur held thus:
"Judicial review generally speaking, is not directed against a decision, but is directed against the "decision making process". The question of the choice and quantum of punishment is within the jurisdiction and discretion of the Court-Martial. But the sentence has to suit the offence and the offender. It should not be vindictive or unduly harsh. It should not be so disproportionate to the offence as to shock the conscience and amount in itself to conclusive evidence of bias. The doctrine of proportionality, as part of the concept of judicial review, would ensure that even on an aspect which is, otherwise, within the exclusive province of the Court-Martial, if the decision of the Court even as to sentence is an outrageous defiance of logic, then the sentence would not be immune from correction. Irrationality and perversity are recognised grounds of judicial review. "
42. The law laid down in Ranjit Thakur (supra) was explained by the Hon'ble Supreme Court in the case of Union of India Versus R. K. Sharma, reported at (2001) 9 SCC 592. The Hon'ble Supreme Court in R. K. Sharma (supra) clearly marked out the limits of the doctrine of proportionality in reviewing the punishment meted out to an employee indicted by an enquiry, in the following terms:
"In our view, the observation in Ranjit Thakur's case (supra) extracted above, have been misunderstood. In that case the facts were such that they disclosed a bias on the part of the Commanding Officer. In that case the Appellant Ranjit Thakur had fallen out of favour of the Commanding Officer because he had complained against the Commanding Officer. For making such a complaint the Commanding Officer had sentenced him to 28 days rigorous imprisonment. While he was serving the sentence he was served with another charge-sheet which read as follows:
"Accused 1429055-M Signalman Ranjit Thakur of 4 Corps Operating Signal Regiment is charged with -
Army Act Disobeying lawful command given by his Section 41(2) superior officer, In that he, At 15.30 hrs on May 29, 1985 when ordered by JC 106251-P Sub Ram Singh, the orderly Officer of the same Regiment to eat his food, did not so."
On such a ridiculous charge rigorous imprisonment of one year was imposed. He was then dismissed from service, with the added disqualification of being declared unfit for any future civil employment. It was on such gross facts that this Court made the observations quoted above and held that the punishment was so strikingly disproportionate that it called for interference. The above observations are not to be taken to mean that a court can, while exercising powers under Article 226 or 227 and/or under Article 32, interfere with the punishment because it considers the punishment to be disproportionate. It is only in extreme cases, which on their face show perversity or irrationality that there can be judicial review. Merely on compassionate grounds a court should not interfere."
43. The proposition of law stated in R. K. Sharma (supra) was approved and followed by the Hon'ble Supreme Court in the case of Union of India and others Versus Bodupalli Gopalaswami reported at (2011) 13 SCC by holding thus:
"In Union of India v. R.K. Sharma [(2001) 9 SCC 592 : 2002 SCC (Cri) 767], this Court explained the observations in Ranjit Thakur [(1987) 4 SCC 611 : 1988 SCC (L&S) 1 : (1987) 5 ATC 113] . It clarified that in Ranjit Thakur [(1987) 4 SCC 611 : 1988 SCC (L&S) 1 : (1987) 5 ATC 113] , the charge was ridiculous, the punishment was harsh and disproportionate and it was on such gross facts that this Court had held that the punishment was so strikingly disproportionate that it called for interference; and the said observations in Ranjit Thakur [(1987) 4 SCC 611 : 1988 SCC (L&S) 1 : (1987) 5 ATC 113] are not to be taken to mean that a court can, while exercising the power of judicial review, interfere with the punishment merely because it considers the punishment to be disproportionate. It was held that only in extreme cases, which on their face, show perversity or irrationality, there could be judicial review and merely on compassionate grounds, courts should not interfere. In this background, we may examine the third question."
44. The disciplinary authority while imposing punishment upon a charged official indicted by an enquiry, has to correlate and balance the imperatives of institutional discipline with the demands of individual rights. Too light a punishment will not be conducive to institutional discipline. Too harsh a punishment will not be consistent with norms of justice. Indiscipline unchecked is indiscipline unleashed. Only a just employer can ensure an efficient employee.
45. The disciplinary authorities best understand the needs of administration, and are best positioned to make a judgement on the quantum of punishment. The courts cannot substitute their decision on the punishment over the judgment of the departmental authorities. The judicial authority in point clearly restricts the jurisdiction of the courts to interfere in matters of quantum of punishment. The court can interfere in the punishment imposed upon a charged official only if the punishment is disproportionate to the proven misconduct to an extent that it is inhumanly harsh and it shocks the conscience of the court.
46. The application of the doctrine of disproportionality is nuanced. One standard does not fit all departments. The degree of punishment has to be applied based on the nature of the functions of the organization and standards of conduct required of its personnel. Uniformed forces require a higher degree of esprit-de-corps/comradeship. The personnel in uniformed forces are often required to go beyond the call of duty, even at the peril of their lives in discharge of their duties. These requirements cannot be compromised and such standards of conduct cannot be relaxed. Any deviation or compromise with these standards of conduct would be detrimental to the organization and fatal to the public function they perform.
47. Members of the uniformed police force are required to exhibit standards of discipline which are more rigorous than others government departments. Similarly, uniformed police personnel can be judged by yardsticks of devotion to duty higher than other employees. Clearly, the petitioner not only failed to achieve these standards but deviated substantially from the same. The petitioner abandoned Constable Prem Chand (since deceased) to his own devices even in an injured state. This conduct is not becoming of a man in an uniformed force, nor does it conform to high standards required in police department. The punishment imposed in the instant case achieves the balance in the competing requirements of institutional discipline and individual rights. The punishment imposed upon him is commensurate with misconduct the petitioner was charged with and subsequently indicted of.
48. The writ petition lacks merits and is dismissed.
Order Date :- 30.11.2018 Dhananjai