Heard Sri Amit Bose, learned counsel for the petitioner, Sri Amitabh Rai , learned Standing Counsel and perused the record.
Undisputed facts of the case are that on 23.6.1996 petitioner (Deena Nath Vishwakarma) alongwith Yadunath Singh, Ram Das, Sweeper and Sri K.K. Srivastava were deputed for escorting accused Mithlesh Kumar Srivstava alias Natwarlal from District Jail, Kanpur to All India institute of Medical Sciences, New Delhi for treatment. After getting the accused medically examined from the Institute, reached New Delhi Railway Station and on reaching railway station, the sweeper and one of the constable went to platform no.1 of the New Delhi Railway Station for getting a wheel chair for transporting the accused to platform no.8 and after getting the wheel chair, the police party and accused person reached platform no.8 but on reaching there they came to know that the train on which they had to travel from New Delhi to Kanpur had left and next train to Kanpur at 5.00 a.m. in the morning . So the aforesaid party alongwith accused person went to platform no. 5 and on reaching there the accused person was allowed to sit on a bench .
Further in order to deposit the wheelchair taken to carry the accused, the sweeper alongwith one constable went to platform no.1 and after depositing it, when they reached platform no.5 they found that accused had escaped from platform no.5, so they approached police Station Government Railway police at New Delhi and narrated the entire story that the accused Sri Mithlesh Kumar Srivastava alias Natwarlal had escaped.
On 25.6.1996 at 1.30 a.m., an First Information Report was lodged by Sri Dhaniram Singh, Sub Inspector of the police at Police Station Government Railway Police, New Delhi against the petitioner and Constable Yadunath Singh and on the basis of the aforesaid First Information Report , a case crime no. 422 of 1996 under Section 223/224 IPC has been registered at Police Station, Government Railway Police, New Delhi.
Thereafter on 30.1.1997 after investigating a criminal case registered against the petitioner, a charge-sheet was submitted against all the three accused persons including the petitioner by the investigating agency before the Metropolitan Magistrate, Delhi.
During the pendency of the criminal trial , Senior Superintendent of Police, Kanpur Nagar instituted a departmental inquiry against the petitioner and Constable Yadunath Singh under Rule 14(1) of the U.P. Police Officers of the Subordinate Ranks ( Punishment and Appeal ) Rules, 1991 ( herein after referred to as Rules , 1991') relating to the escaped of accused Mithlesh Kumar Srivastava alias Natwarlal from the custody of the petitioner in the mid night of 24/25.6.1996, departmental inquiry has been entrusted.
On 21.7.1997 a charge-sheet was issued to the petitioner to which he on 24.8.1997 submitted his reply denying the charges, after conducting the disciplinary proceeding as per rules, the inquiry officer submitted a inquiry report dated 6.3.1998.
In the inquiry report , on the basis of materials/ evidence on record, the inquiry officer has given findings which is quoted below:-
"आरक्षियों ने अपने कार्य के प्रति पूर्ण लापरवाही का परिचय दिया तथा अपने कार्य को छोड़कर अन्य कार्य में लग गये, जिसका लाभ उठाकर अभियुक्त मिथलेश कुमार श्रीवास्तव उर्फ नटवरलाल भागने में सफल रहा |"
After receiving the inquiry report , punishing authority on 9.3.1998 issued a show cause notice to the petitioner alongwith inquiry report that why the punishment be not imposed on him as he is found to be guilty of negligence and remissness in the performance of his duties due to which accused Mithlesh Kumar Srivastava alias Natwarlal escaped from his custody in the night of 24/25.6.1996 from the New Delhi Railway Station.
Petitioner submitted his reply one of the defence taken by him is that in the incident in question a criminal case being case Crime no. 422/96 under Sections 223/24 IPC registered at Police Station G.R.P. New Delhi and a chargesheet had been submitted before the competent court in connection with the aforesaid criminal case and the trial was pending as such the departmental inquiry in respect of the same matter should not proceed till the conclusion of the criminal trial.
Thereafter by order dated 15.5.1998 Senior Superintendent of Police, Kanpur Nagar after obtaining legal opinion from the Senior Prosecuting Officer stayed the departmental inquiry against the petitioner and Constable Yadunath Singh till the conclusion of the criminal trial .
In the meantime, in the month of May 1999, petitioner was transferred from Kanpur Nagar to Lucknow and joined his duty on 1.6.1999.
On 30.9.2009 a judgment and order was passed by Metropolitan Magistrate, Delhi in case crime no. 422 of 1996, the relevant portion quoted as under:-
" In the present case, prosecution is obliged to prove following facts beyond reasonable doubt to secure conviction of accused persons:-
(I) That custody of accused no.3 was handed over to accused no. 1 and 2 and accused no.1 and 2 were legally bound to keep accused no.3 in their custody.
(ii) That accused no.1 and 2 negligently suffered accused no.3 to escape from confinement.
In the present case prosecution has failed to prove the first part as PW8 and PW9 who were most important to this fact were not examined by prosecution and the documents vide which custody of accused no.3 was handed over to accused no. 1 and 2 have not been proved. Hence the prosecution has failed to prove that custody of accused no.3 was given to accused no.1 and 2 and accused no. 1 and 2 were legally bound to keep accused no. 3 in their custody.
As far as second point is concerned, it is pertinent to mention that PW1 as well as PW2 had stated that they were not present at the spot when accused no.3 escaped from custody of accused no.1. Neither PW1 nor PW2 had stated that accused no.3 had escaped due to negligence of accused no. 1 and 2 . Hence , the prosecution has failed to prove second point also.
In view of discussion made herein above , I am of considered view that prosecution has failed to prove its case against accused persons beyond reasonable doubt, hence both accused persons are hereby acquitted in the present case."
Thereafter on 16.6.2010, the Punishing Authority/ Deputy Inspector General of Police/ Senior Superintendent of Police, Kanpur Nagar passed punishment order thereby awarding punishment of reduction to the lowest grade in the pay scale applicable to a Constable of Armed Police for a period of three years has been imposed in pursuance of a departmental enquiry conducted against him under Section 7 of the Police Act.
Aggrieved by the said Order petitioner filed an appeal before the Appellate Authority/ Inspector General of Police, Kanpur Range , Kanpur, rejected by order dated 27.9.2010 challenged by the petitioner by filing revision.
In the meantime petitioner retired from service on 31.12.2011 attaining the age of superannuation. By order dated 5.7.2012 the revision filed by the petitioner has been dismissed by the revisional authority / opposite party no.2 / Additional Director General of Police (Security) Security Branch, Prosecution Wing, U.P. Lucknow.
Against the judgment and order dated 30.9.2009 passed by Criminal Court (Metropolitan Magistrate, Delhi), a criminal Leave Petition no. 5 of 2011( Government of NCT of Delhi Vs. Deenanath and others) was filed before Delhi High Court , dismissed by order dated 18.7.2012.
In view of the said factual background, present writ petition has been filed.
Sri Amit Bose, learned Counsel for the petitioner while challenging the impugned order dated 16.6.2010 ( Annexure no.1) passed by Deputy General of Police/ Senior Superintendent of Police, Kanpur Nagar as well as the order dated 27.9.2012 ( Annexure no.6) passed by Inspector General of Police, Kanpur Range, Kanpur/ opposite party no.2 and order dated 5.7.2012 ( Anneure no.7) passed by Additional Director General of Police (Security) Security Wing, Prosecution Branch, U.P. Lucknow /opposite party no.3 by which the petitioner's appeal and revision were dismissed submits that the same are illegal , arbitrary and hit by Article 14 of the Constitution of India that the departmental proceedings against a police officer in a case where such police officer is alleged to have committed a cognizable offence and he is tried for the said charge are governed by the provisions of Paras 492 and 493 of the U.P. Police Regulations which provide that whenever a police officer has been tried on criminal charges and acquitted , it would not be permissible for the Superintendent of Police to re-examine to truth or otherwise of the findings of facts recorded by the competent court and the findings recorded by the competent court in this regard have to be taken to the final. Moreover, departmental proceedings against a police officer who has been acquitted on criminal charges can be conducted only if the findings of the court are not inconsistent with the view that the accused has been guilty of negligence in, or unfitness for the discharge of his duty within the meaning of Section 7 of the Police Act.
Sri Amit Bose , learned counsel for the petitioner further submits that once the petitioner has been acquitted in criminal case against which Criminal Leave Petition has been dismissed by Delhi High Court , so in view of the provisions as provided under Paras 492 and 493 of the U.P. Police Regulations no departmental proceedings were permissible against the petitioner on a very same charges as had been leveled against him in criminal trial instituted against him, as such the departmental proceedings conducted against the petitioner were patently without jurisdiction and consequently the impugned orders passed against him being contrary to law , liable to be set aside.
Sri Amit Bose , learned counsel for the petitioner also submits that the findings recorded by the competent court in the criminal trial instituted against the petitioner which clearly established as a fact that there is no material on record to indicate either that the petitioner had committed an negligence as a result of which the accused persons Mithlesh Kumar Srivastava alias Natwarlal had escaped from his custody or that the accused person had even been entrusted in the custody of the petitioner, so keeping in view the said facts the punishment which awarded to the petitioner by order dated 16.6.2010 (Annexure no.1) passed by Deputy General of Police/ Senior Superintendent of Police, Kanpur Nagar on the ground that due to negligence on the part of the petitioner accused persons had escaped from his custody is contrary to the findings as given in criminal court upheld by Delhi High Court in the Criminal Leave Petition , liable to be set aside.
In support of his arguments , Sri Amit Bose, learned counsel for the petitioner has placed reliance on the following judgments :-
(1) Dhani Ram Vs. Superintendent of Police (1989) 1 UPLBEC 624.
(2) Kedar nath Yadav Vs. State of U.P. , 2005(3) ESC 1955 (3) Writ Petition No. 1735(SS) of 2011,Surendra Singh Vs. State of U.P. decided on 6.1.2012.
Sri Amitabh Rai , learned Standing Counsel while defending the impugned orders submits that there is no legal impediment in the way of punishing authority to hold a disciplinary proceedings simultaneously the criminal proceedings are pending against the petitioner under Regulation 492 and 493 of the U.P. Police Regulations and even if the petitioner is acquitted in criminal case then the same cannot be a ground that he can be exonerated in the disciplinary proceedings.
Learned Standing Counsel further submits that departmental proceeding and criminal proceeding entirely operate in a different field .The standard of proof, the mode of inquiry and the rules governing the inquiry and the criminal trial are entirely distinct and different, so the arguments made on behalf of the petitioner that once the petitioner has been acquitted in the criminal matter, disciplinary proceedings cannot take place and no punishment should be awarded is an incorrect submissions. In support of his arguments , learned Standing Counsel has placed reliance on the following judgments:-
(1) State of U.P. and others Vs. Harendra Kumar ( 2004) 13 SCC 117 (2) Samar Bahadur Singh Vs. State of U.P. and others , 2012 (1) ALJ 443.
(3) The Divisional Controller, KSRTC Vs. M.G. Vittal Rao, 2012(30) LCD 11.
Sri Amitabh Rai, learned Standing Counsel also submits that even if the petitioner has not been found guilty in the criminal case , in that circumstances keeping in view the judgments as cited by him in the matter, the action on the part of punishing authority/ opposite party no.4 thereby awarding the punishment to the petitioner on the basis of inquiry report submitted by the inquiry officer conducted in accordance with the guidelines for conducting the disciplinary proceedings in which a categorical finding given that due to negligence on the part of petitioner in performing his duties accused Mithlesh Kumar Srivastava alias Natwarlal has escaped is perfectly valid, needs no interference , so the writ petition filed by the petitioner liable to be dismissed.
After hearing learned counsel for the parties , the position which emerge out that that the controversy involved in the present case is governed by U.P. Police Act, 1861 (hereinafter referred to as the "Act'), Rules and Regulations framed thereunder.
Section 7 of the Act provides that subject to provisions of Article 311 and to such rules as the State Government may make from time to time, the Director General-cum-Inspector General, Deputy Inspector General, Assistant Inspector General and District Superintendent of Police may have the power of dismissal, suspension or reduction in rank of any police officer of subordinate rank whom they shall think fit remiss or negligent in discharge of his duty or unfit for the same or may award one or more punishment provided in Clauses (a) to (e) thereof. With reference to Section 7 of the Act Rules were framed which have been compiled in Chapter XXXII of Police Regulations. This Chapter has the Regulations 477 to 507-A.
A Division Bench of this Court in the case of Dhani Ram Vs. Superintendent of Police, Hardoi, (1989) 1 UPLBEC 624 has held as under:-
" It has been held in State of Uttar Pradesh Vs. Babu Ram Upadhya AIR 1961 SC 751 that the regulations contained in Chapter XXXII of the U.P. Police Regulations having been framed under Section 7 of the Police Act have got statutory force and if any order is passed in contravention of these regulations it is illegal. In State of Madhya Pradesh Vs. Syed Qamarali, 1967 SLR 228 (SC) , the order of dismissal passed against a Police Sub- Inspector contrary to para 241 of the Madhya Pradesh Police Regulation was held illegal . Paragraph 241 of the Madhya Pradesh Police Regulations which is some what similar to para 493 of the U.P. Police Regulations relates to departmental enquiry against a police officer when he has been acquitted by a criminal court on the same charge . From these cases it appears that if the order in departmental proceedings infringes para 493 of the U.P. Police Regulations it must be held illegal and be quashed.
From the above discussion it is clear that the petitioner was judicially acquitted in the criminal trial . The truth of the charge was thoroughly examined by the criminal court. The departmental proceedings were initiated in connection with the same charge. These proceedings were initiated because the Police Authorities were under the impression that the petitioner had been given the benefit of doubt . Such a distinction has not been made in the aforesaid Police Regulation. It is general principle applicable to Government servants but the case of a police officer stands on a different footing in face of para 493 of the U.P. Police Regulations. It is not less significant to mention that in the impugned order ( Annexure-1) itself it is mentioned that the evidence which was led in the criminal trial was the only evidence in the departmental proceedings. When that evidence was not believed and did not prove the charge how it can be held that it was sufficient for the departmental proceedings to hold the petitioner guilty for the offence for the misconduct of taking illegal gratification. The finding of the criminal court is undoubtedly inconsistent with the finding arrived at in the departmental proceedings. It can , therefore, be easily inferred that the impugned order violates para 493 of the U.P. Police Regulation and deserves interference in the exercise of jurisdiction under Article 226 of the Constitution .
So far as the declaratory relief about para 493(C) of the U.P. Police Regulations is concerned, it has been mentioned above that at the time of argument nothing was argued against its validity . A glance on it makes it clear that it imposes reasonable restrictions on the discretion of the administrative authority in proceedings against a police officer when he has been judicially acquitted and it does not confer unreasonable powers on him in such a case. This declaratory relief cannot , therefore, be granted to the petitioner."
On the basis of arguments of learned counsel for the parties the Regulation which is to be considered in order to resolve the controversy in the instant case are Regulations 492 and 493 of the U.P. Police Regulation quoted as under:-
"492. Whenever a police officer has been judicially tried, the Superintendent must await the decision of the Judicial appeal, if any, before deciding whether further departmental action is necessary.
493. It will not be permissible for the Superintendent of Police in the course of a departmental proceeding against a Police Officer who has been tried judicially to re-examine the truth of any facts in issue at his judicial trial, and the finding of the Court on these facts must be taken as final.
Thus, (a) if the accused has been convicted and sentenced to rigorous imprisonment, no departmental trial will be necessary, as the fact that he has been found deserving of rigorous imprisonment must be taken as conclusively providing his unfitness for the discharge of his duty within the meaning of Section 7 of the Police Act. In such cases the Superintendent of Police will without further proceedings ordinarily pass an order of dismissal, obtaining the formal order of the Deputy Inspector General when necessary under paragraph 479(a). Should he wish to do otherwise he must refer the matter to the Deputy Inspector General of the range for orders.
(b) If the accused has been convicted but sentenced to a punishment less than of rigorous imprisonment a departmental trial will be necessary, if further action is thought desirable, but the question in issue at this trial will be merely (1) whether the offence of which the accused has been convicted amounts to an offence under Section 7 of the Police Act, (2) if so, what punishment should be imposed. In such cases the Superintendent of Police will (i) call upon the accused to show cause why any particular penalty should not be inflicted on him, (ii) record anything the accused officer has to urge against such penalty without allowing him to dispute the findings of the Court, and (iii) write a finding and order in ordinary way dealing with any plea raised by the accused officer which is relevant to (1) and (2) above.
(c) If the accused has been judicially acquitted or discharged, and the period for filing an appeal has elapsed and/ or no appeal has been filed the Superintendent of Police must at once reinstate him if he has been suspended; but should the findings of the Court not be inconsistent with the view that the accused has been guilty of negligence in, or unfitness for, the discharge of his duty within the meaning of Section 7 of the Police Act, the Superintendent of Police may refer the matter to the Deputy Inspector General and ask for permission to try the accused departmentally for such negligence or unfitness."
Regulation 492 talks of a situation where a police officer has been judicially tried. In such circumstances it provides that Superintendent of Police must await decision of judicial appeal, if any, before deciding whether further departmental action is necessary or not. It thus has become necessary to this Court to find out what constitute judicial trial under Regulation 492.
Regulation 483 contemplates three kinds of proceedings against a police officer, (a) a magisterial or police inquiry, followed, if this inquiry shows need for further action, or (b) a judicial trial, or (c) a departmental trial, or both, consecutively.
The inquiry contemplated in Regulation 483, Magisterial or Police, have been dealt with in detail in Regulations 484, 485, 486 and 487. It provide that nature of inquiry shall depend on the nature of offence namely, whether offence is cognizable or non-cognizable according to Schedule 2 of Code of Criminal Procedure (in short "Cr.P.C.). Similarly, where a magisterial inquiry is ordered the same shall be according to provisions of Cr.P.C. A judicial trial is dealt with in Regulation 488 and it reads as under:
"488. A criminal charge against a Police Officer, superior in rank to a head constable shall in a separation district be tried by the Additional District Magistrate, Judicial. Elsewhere, such a case will be tried by a Judicial Officer having a least four years' experience of Judicial work. In case a Judicial Officer with the requisite experience is not available, the District Magistrate will keep the case on his own file or transfer it to the Additional District Magistrate, Executive."
Regulation 492 has been considered by this Court in Kedar Nath Yadav Vs. State of U.P. and others, 2005 (23) LCD 1181 relevant para 40 and 43 of the said judgment are quoted as under:-
"40. These Regulations are substantially Regulations of procedure in disciplinary inquiries. Whether the disciplinary inquiry is to continue at all or not, in what manner the authority-in-charge of the disciplinary inquiry will decide the matter, these are the subject matter of Regulations 492 and 493. Regulation-493 provides a sort of departmental res judicata. In Courts of law, res judicata is part of the Code of Civil Procedure. In the Police Inquiries, this part of the Civil Procedure Code is, in a manner of speaking, replicated in Regulation-493. A Regulation like 493, similarly like the principle of res judicata, has the great virtue of avoiding conflict of decisions. There is nothing unconstitutional in Regulation-493; there is nothing, which is practically archaiz in this Regulation either, if the charge is of such a nature that the departmental inquiry is sufficient into the purpose, like may be, the loss of four magazines, then it is not obligatory upon the police authority to lodge a complaint and start the criminal prosecution at all. It would be open to them to conduct the disciplinary inquiry on their own and reach a finding as and when they please. Regulation 493 would not hurt then at all.
43. Of course it is possible for the rule making authorities to do away with Regulation 493, but until that is done, it has to be given full effect; unless of course, in the 1991 Rules there is a Rule which can be said to operate in the same field. We have searched the Rules in vain to find one Rule, which can be a suitable contender to Regulation 493 in the matter of taking up of the position of the guiding Rule in this regard."
Further in the case of Kedar Nath Yadav (supra) in Para 46 and 50 held as under:
"46. As such, we are of the clear opinion that the said Regulation is not repealed specifically or impliedly by any part or portion of the 1991 Rules which is inconsistent with the said Regulation 493, and the said Regulation is not repealed in a body with the entirety of Chapter-XXXII by application of the principle of implied repeal either. That is because the 1991 Rules are not comprehensive enough to bring in the doctrine of total repeal by implication. Even this single Regulation-493 is so important and so occurring again and again in matters of departmental inquiry, that by reason of the presence of this Regulation only it would be possible to argue that the 1991 Rules do not seek to cover the entirety of the field in relation to disciplinary inquiry and punishment. The preamble also does not seek, even with the words that it uses, to cover the entire field, it merely mentions that it seeks to regulate, only to regulate, the disciplinary proceedings and the matters of punishment. Such Regulation is quite possible by operating on the existing Police Regulations in Chapter-XXXII and doing away with only those Regulations, which are in conflict with the later express Rules.
50. The inescapable conclusion, therefore, is that the authorities were bound to follow Regulations 492 and 493, the 1991 Rules notwithstanding. They did not do so and they proceeded to decide differently on the charge of embezzlement of four magazines although the writ petitioner-appellant had been acquitted on the same charge in the criminal Courts. The authorities have thus brought on record an error of law by acting contrary to existing Regulations; such an error on the face of the record can and should be corrected by the writ Court. An acquittal is an acquittal, whether on the benefit of doubt or not. One cannot go behind the acquittal, but must ordinarily accept it on its face value."
After considering the case of Kedar Nath Yadav ( Supra) a Division Bench of this Court by means of order dated 21.09.2010 passed in Special Appeal No. 689 of 2010 ( Dinesh Tripathi Vs. State of U.P. has held under:-
"On behalf of the appellant-petitioner, learned counsel relies upon a judgment in Kedar Nath Yadav v. State of U.P. and others [2005 (3) ESC (All.), 1955]. On consideration of Regulations 492 and 493, the Division Bench made the following observations in para 14 of the said judgment.
"14. The two Regulations mentioned above are set out below:-
492. Whenever a police office has been judicially tried, the Superintendent must await the decision of the Judicial appeal, if any, before deciding whether further departmental action is necessary.
493. It will not be permissible for the Superintendent of Police in the course of a departmental proceeding against a Police Officer who has been tried judicially to re-examine the truth of any facts in issue at his judicial trial, and the finding of the Court on these facts must be taken as final.
Thus, (a) if the accused has been convicted and sentenced to rigorous imprisonment, no departmental trial will be necessary, as the fact that he has been found deserving of rigorous imprisonment must be taken as conclusively providing his unfitness for the discharge of his duty within the meaning of Section 7 of the Police Act. In such cases the Superintendent of Police will without further proceedings ordinarily pass an order of dismissal, obtaining the formal order of the Deputy Inspector General when necessary under paragraph 479 (a). Should he wish to do otherwise he must refer the matter to the Deputy Inspector General of the range for orders.
(b) If the accused has been convicted but sentenced to a punishment less than of rigorous imprisonment a departmental trial will be necessary, if further action is thought desirable, but the question in issue at this trial will be viz (1) whether the offence of which the accused has been convicted amounts to an offence under Section 7 of the Police At, (2) if so, what punishment should be imposed. In such cases the Superintendent of Police will (i) call upon the accused to show cause why any particular penalty should not be inflicted on him (ii) record anything the accused Officers has to urge against such penalty without allowing him to dispute the findings of the Court, and (iii) write a finding and order in the ordinary way dealing with any plea raised by the accused officers which is relevant to (1) and (2) above.
(c) If the accused has been judicially acquitted or discharged, and the period for filing an appeal has elapsed and/or no appeal has been filed the Superintendent of Police must at once reinstate him if he has been suspended; but should the findings of the Court not be inconsistent with the view that the accused has been guilty of negligence in, or unfitness for, the discharge of his duty within the meaning of Section 7 of the Police Act, the Superintendent of Police may refer the matter to the Deputy Inspector General and ask for permission to try the accused departmentally for such negligence or unfitness."
A careful perusal thereof would show that whenever delinquent employee (Police Officer) has been judicially tried, in other words, where the inquiry has been completed either resulting in conviction and/or acquittal and the matter is in appeal then in that event, the Superintendent of Police must await the decision of the judicial appeal.
We are still at a stage where the trial has not yet concluded. Even in the case of Kedar Nath Yadav (supra) the matter arose on the acquittal of the delinquent employee therein."
This Court by means of judgment and order dated 28.2.2012 passed in Writ -A No. 10614 of 2012 ( Radhey Shyam and others Vs. State of U.P. and others) has held as under:-
"Whether disciplinary enquiry is to continue at all or not, and whether result of criminal trial is to be awaited, is to be decided, by the authority-in-charge of disciplinary matter, keeping in view over all fact and situation as prevailing on the spot, and said issues will have to be answered the parameter provided for. Request of petitioners be considered within next eight weeks from the date of receipt of certified copy of the order."
The same view has been reiterated by this Court in the case of Surendra Singh Vs. State of U.P. , 2012 (2) ADJ 135.
Hon'ble the Apex Court in the case of State of U.P. and others Vs. Harendra Kumar 920(4) 13 SCC 117 has held as under:-
"Acquittal in the criminal case shall have no bearing or relevance to the facts of the departmental proceedings as the standard of proof in both the cases are totally different. In a criminal case, the prosecution has to prove the criminal case beyond all reasonable doubt whereas in the departmental proceedings, the department has to prove only preponderance of probabilities. In the present case, we find that the department has been able to prove the case on the standard of preponderance of probabilities. Therefore, the submissions of the counsel appearing for the appellant are found to be without any merit."
Hon'ble the Apex Court in the case of Sumar Bahadur Singh Vs. State of U.P. and others , 2012(1) ALJ 443 after considering the provisions of U.P. Police Act and Uttar Pradesh Police Regulations, held as under:-
" Counsel appearing for the appellant has submitted before us that a criminal case was also instituted for the aforesaid incident in which he was acquitted and therefore, in the departmental proceeding also which was initiated he should also have been acquitted and the same should have been allowed to be ended in his favour. He further submits that in any case it has come in evidence that the appellant was advised to take medicine which he had taken and, therefore, there was some smell of liquor from the medicine when a medical check-up was done. Relying on the same, counsel submits that the entire charge is concocted and therefore, he is required to be held not guilty of the charge. The next submission of the counsel appearing for the appellant is that the punishment given to the appellant is disproportionate to the charges levelled against him.
Acquittal in the criminal case shall have no bearing or relevance to the facts of the departmental proceedings as the standard of proof in both the cases are totally different. In a criminal case, the prosecution has to prove the criminal case beyond all reasonable doubt whereas in a departmental proceedings, the department has to prove only preponderance of probabilities. In the present case, we find that the department has been able to prove the case on the standard of preponderance of probabilities. Therefore, the submissions of the counsel appearing for the appellant are found to be without any merit."
In the case of The Divisional Controller , KSRTC Vs. M.G. Vittal Rao , 2012(30) LCD 11 Hon'ble the Supreme Court while considering the mater in regard to conducting of departmental inquiry and acquittal in criminal case held as under:-
"The question of considering reinstatement after decision of acquittal or discharge by a competent criminal Court arises only and only if the dismissal from services was based on conviction by the criminal Court in view of the provisions of Article 311 (2) (b) of the Constitution of India, 1950, or analogous provisions in the statutory rules applicable in a case. In a case where enquiry has been held independently of the criminal proceedings, acquittal in a criminal Court is of no help. The law is otherwise. Even if a person stood acquitted by a criminal Court, domestic enquiry can be held, the reason being that the standard of proof required in a domestic enquiry and that in a criminal case are altogether different. In a criminal case, standard of proof required is beyond reasonable doubt while in a enquiry it is the preponderance of probabilities that constitutes the test to be applied. In Nelson Motis v. Union of India & Anr., AIR 1992 SC 1981, this Court held :
"The nature and scope of a criminal case are very different from those of a departmental disciplinary proceeding and an order of acquittal, therefore, cannot conclude the departmental proceeding."
In State of Karnataka & Anr. v. T. Venkataramanappa, (1996) 6 SCC 455, this Court held that acquittal in a criminal case cannot be held to be a bar to hold departmental enquiry for the same misconduct for the reason that in a criminal trial, standard of proof is different as the case is to be proved beyond reasonable doubt but in the departmental proceeding, such a strict proof of misconduct is not required.
In State of Andhra Pradesh v. K. Allabaksh, (2000) 10 SCC 177, while dismissing the appeal against acquittal by the High Court, this Court observed as under:
"That acquittal of the respondent shall not be construed as a clear exoneration of the respondent, for the allegations call for departmental proceedings, if not already initiated, against him."
While dealing with a similar issue, a three-Judges Bench of this Court in Ajit Kumar Nag v. General Manager (PJ) Indian Oil Corporation Ltd., (2005) 7 SCC 764, held as under:-
"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 total 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", 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."
The issue as to whether disciplinary proceedings can be held at the time when the delinquent employee is facing the criminal trial, has also been considered from time to time. In State of Rajasthan v. B.K. Meena & Ors., AIR 1997 SC 13, this Court while dealing with the issue observed as under:
"It would be evident from the above decisions that each of them starts with the indisputable proposition that there is no legal bar for both proceedings to go on simultaneously and then say that in certain situations, it may not be `desirable', `advisable' or `appropriate' to proceed with the disciplinary enquiry when a criminal case is pending on identical charges...........The only ground suggested in the above decisions as constituting a valid ground for staying the disciplinary proceedings is that `the defence of the employee in the criminal case may not be prejudiced'. This ground has, however, been hedged in by providing further that this may be done in cases of grave nature involving questions of fact and law. In our respectful opinion, it means that not only the charges must be grave but that the case must involve complicated questions of law and fact. Moreover, advisability', `desirability' or `propriety', as the case may be, has to be determined in each case taking into consideration all the facts and circumstances of the case............One of the contending considerations is that the disciplinary enquiry cannot be - and should not be - delayed unduly. So far as criminal cases are concerned it is well known that they drag on endlessly where high officials or persons holding high public offices are involved. They get bogged down on one or the other ground. They hardly ever reach a prompt conclusion..........If a criminal case is unduly delayed that may itself be a good ground for going ahead with the disciplinary enquiry even where the disciplinary proceedings are held over at an earlier stage. The interests of administration and good government demand that these proceedings are concluded expeditiously. It must be remembered that interests of administration demand that undesirable elements are thrown out and any charge of misdemeanour is enquired into promptly. The disciplinary proceedings are meant not really to punish the guilty but to keep the administrative machinery unsullied by getting rid of bad elements. The interest of delinquent officer also lies in a prompt conclusion of the disciplinary proceedings. If he is not guilty of the charges, his honour should be vindicated at the earliest possible moment and if he is guilty, he should be dealt with promptly according to law. It is not also in the interest of administration that persons accused of serious misdemeanour should be continued in office indefinitely, i.e., for long periods awaiting the result of criminal proceedings. It is not in the interest of administration. It only serves the interest of the guilty and dishonest........"
13. In Capt. M. Paul Anthony v. Bharat Gold Mines Ltd., AIR 1999 SC 1416, this Court held that there can be no bar for continuing both the proceedings simultaneously. The Court placed reliance upon a large number of its earlier judgments, including Delhi Cloth and General Mills Ltd. v. Kushal Bhan, AIR 1960 SC 806; Tata Oil Mills Co. Ltd. v. The Workmen, AIR 1965 SC 155; Jang Bahadur Singh v. Baij Nath Tiwari, AIR 1969 SC 30; Kusheshwar Dubey v. M/s. Bharat Coking Coal Ltd. & Ors., AIR 1988 SC 2118; Nelson Motis (Supra); and B.K. Meena (Supra), and held that proceedings in a criminal case and departmental proceedings can go on simultaneously except where both the proceedings are based on the same set of facts and the evidence in both the proceedings is common. In departmental proceedings, factors prevailing in the mind of the disciplinary authority may be many, such as enforcement of discipline or to investigate level of integrity of delinquent or other staff. The standard of proof required in those proceedings is also different from that required in a criminal case. While in departmental proceedings, the standard of proof is one of preponderance of probabilities, in a criminal case, the charge has to be proved by the prosecution beyond reasonable doubt. Where the charge against the delinquent employee is of a grave nature which involves complicated questions of law and fact, it is desirable to stay the departmental proceedings till conclusion of the criminal case. In case the criminal case does not proceed expeditiously, the departmental proceedings cannot be kept in abeyance for ever and may be resumed and proceeded with so as to conclude the same at an early date. The purpose is that if the employee is found not guilty his cause may be vindicated, and in case he is found guilty, administration may get rid of him at the earlier.
However, while deciding the case, taking into consideration the facts involved therein, the Court held:
"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."
In State Bank of India & Ors. v. R.B. Sharma, AIR 2004 SC 4144, same view has been reiterated observing that both proceedings can be held simultaneously, except where departmental proceedings in criminal case are based on same set of facts and evidence in both the proceedings is common. The Court observed as under:-
"The purpose of departmental inquiry and of prosecution are to put a distinct aspect. Criminal prosecution is launched for an offence for violation of duty. The offender owes to the society, or for breach of which law has provided that the offender shall make satisfaction to the public. So crime is an act of commission in violation of law or of omission of a public duty. The departmental inquiry is to maintain discipline in the service and efficiency of public service."
While deciding the said case a very heavy reliance has been placed upon the earlier judgment of this Court in Depot Manager, Andhra Pradesh State Road Transport Corporation v. Mohd Yousuf Miya & Ors., AIR 1997 SC 2232, wherein it has been held that both proceedings can be held simultaneously unless the gravity of the charges demand staying the disciplinary proceedings till the trial is concluded as complicated questions of fact and law are involved in that case.
A similar view has been reiterated by this Court in Senior Superintendent of Post Offices v. A. Gopalan, AIR 1999 SC 1514; Kendriya Vidyalaya Sangathan & Ors. v. T. Srinivas, AIR 2004 SC 4127; Krishnakali Tea Estate v. Akhil Bhartiya Chah Mazdoor Sangh & Anr., (2004) 8 SCC 200; Commissioner of Police Delhi v. Narendra Singh, AIR 2006 SC 1800; South Bengal State Transport Corporation v. Span Kumar Mitra & Ors., (2006) 2 SCC 584; and Punjab Water Supply & Sewerage Board v. Ram Sajivan, (2007) 9 SCC 86.
In Union of India & Ors. v. Naman Singh Shekhawat, (2008) 4 SCC 1, this Court held that departmental proceeding can be initiated after acquittal by the Criminal Court. However, the departmental proceeding should be initiated provided the department intended to adduce any evidence which could prove the charges against the delinquent officer. Therefore, initiation of proceeding should be bona fide and must be reasonable and fair.
In Pandiyan Roadways Corpn. Ltd. v. N. Balakrishnan, (2007) 9 SCC 755, this Court re-considered the issue taking into account all earlier judgments and observed as under:
"There are evidently two lines of decisions of this Court operating in the field. One being the cases which would come within the purview of Capt. M. Paul Anthony v. Bharat Gold Mines Ltd (supra), and G.M. Tank v. State of Gujarat, (2006) 5 SCC C446. However, the second line of decisions show that an honourable acquittal in the criminal case itself may not be held to be determinative in respect of order of punishment meted out to the delinquent officer, inter alia, when: (i) the order of acquittal has not been passed on the same set of facts or same set of evidence; (ii) the effect of difference in the standard of proof in a criminal trial and disciplinary proceeding has not been considered (See: Commr. of Police v. Narende Singh, (supra) or; where the delinquent officer was charged with something more than the subject-matter of the criminal case and/or covered by a decision of the civil court (See: G.M. Tank, (supra), Jasbir Singh v. Punjab & Sind Bank, (2007) 1 SCC 566; and Noida Entrepreneurs' Assn. v. Noida, (2007) 10 SCC 385, para 18)...........We may not be understood to have laid down a law that in all such circumstances the decision of the civil court or the criminal court would be binding on the disciplinary authorities as this Court in a large number of decisions points out that the same would depend upon other factors as well. (See: e.g. Krishnakali Tea Estate (supra); and Manager, Reserve Bank of India v. S. Mani, (2005) 5 SCC 100). . Each case is, therefore, required to be considered on its own facts."
(See also: Ram Tawekya Sharma v. State of Bihar & Ors., (2008) 8 SCC 261; and Roop Singh Negi v. Punjab National Bank & Ors., (2009) 2 SCC 570).
Thus, there can be no doubt regarding the settled legal proposition that as the standard of proof in both the proceedings is quite different, and the termination is not based on mere conviction of an employee in a criminal case, the acquittal of the employee in criminal case cannot be the basis of taking away the effect of departmental proceedings. Nor can such an action of the department be termed as double jeopardy. The judgment of this Court in Capt. M. Paul Anthony (supra) does not lay down the law of universal application. Facts, charges and nature of evidence etc. involved in an individual case would determine as to whether decision of acquittal would have any bearing on the findings recorded in the domestic enquiry.
In the instant case initially disciplinary proceedings has been initiated against the petitioner . Subsequently it was kept in abeyance in view of the criminal trial registered as Sr. No. 1067/2( State . Vs. Deena Nath Vishwakarma) FIR No. 422 of 1996 under Section 223/224 IP.C. Police-station NDRS and by means of judgment and order dated 30.9.2009, the said matter has been decided , the operative portion reads as under :-
"In view of discussion made herein-above , I am of considered view that prosecution has failed to prove his case against accused persons beyond reasonable doubt, hence both accused persons are hereby acquitted in the present case."
After passing the judgment in criminal case , appeal filed by the respondents has been dismissed by Delhi High court thereafter on the basis of disciplinary proceedings initiated against the petitioner on the punishment order dated 16.2.2010 has been passed affirmed in appeal as well as revision by order dated 27.9.2010 passed by Inspector General of Police, Kanpur Rank Kanpur and by order dated 5.7.2012 passed by Additional Director General of Police(Security) Security Branch, Prosecution Wing, U.P. Lucknow .
Keeping in view the above said facts and taking into consideration that the purpose of the two proceedings are quite different. The object of the departmental proceedings is to ascertain whether the petitioner is required to be retained in service or not. On the other hand, the object of the criminal prosecution is to find out whether the offence in the penal statute has been made out or not.
Therefore, the area covered by the two proceedings are distinct and different and are not identical. The object of both the proceedings are different. Whereas the departmental proceedings are taken to maintain discipline in the service, the criminal proceedings is initiated to punish a person for committing an offence violating any public duty.
The degree of proof required in a departmental enquiry is vastly different than the degree of proof required to prove a criminal charge. In the departmental enquiry the findings can be recorded in preponderance of probabilities and it is not necessary that the charge must be proved to the guilt. The departmental proceedings and the criminal proceedings are entirely different in nature. They operate in different fields and they have different objectives. The material or the evidence in the two proceedings may or may not be the same and, in some cases, at least, material or evidence which would be relevant or open for consideration in the departmental proceeding, may be irrelevant in the criminal proceeding. The Rules relating to the appreciation of the evidence in the two inquiries may also be different. The standard of proof, the mode of enquiry, the rules governing the enquiry and the trial in both the cases are entirely distinct and different.
In the disciplinary proceedings the Inquiry Officer can come to a different conclusion than arrived at by a Criminal Court and that it is immaterial whether the charges were identical or the witnesses were the same, as long as the power exercised by the Criminal Court and the departmental inquiry under the relevant law and the service law are distinct and separate. There is no bar for holding a disciplinary proceeding during the pendency of the trial though the basis may be one and the same. It is for the disciplinary authority to decide as to whether in a given case it should keep the domestic enquiry pending till the outcome of the criminal trial or not.
Thus in view the above said facts and taking into consideration the inquiry report submitted by inquiry officer on the basis of disciplinary proceedings conducted as per the Rules/ Regulation which governs the filed for conducting the inquiry proceedings on the basis of findings given by the inquiry officer that due to negligence on the part of the petitioner, accused Mithlesh Kumar Srivastava alias Natwarlal has escaped away, the punishment order dated 16.6.2010 has been passed by the punishing authority , so there is no infirmity in the impugned order dated 16.6.2010 by which punishment has been awarded to the petitioner to reduction to the lowest grade in the pay scale applicable to the Constable of Armed Police for a period of three years, affirmed in appeal/ revision.
However during the period in which said punishment order has to take effect, petitioner has retired from service after attaining the age of superannuation on 31.12.2011 , thereafter the official respondent had calculated his post retiral dues on the basis of the salary which has been paid to him in view of punishment order i.e. reduction to the lowest grade in the pay scale applicable to the Constable of the Armed Police for a period of three years, is an exercise which is "reasonable or unreasonable" because the action on the part of official respondent by paying the post retiral dues to him after his retirement on 31.12.2011 on the basis of last pay drawn based on punishment order 16.6.2010, will effect him adversely throughout his life.
In order to decide the said fact it is to be kept in mind that the question of quantum of punishment in disciplinary matters was primarily for the authority and the power of judicial review was confined to Wednesbury unreasonableness ( (See: Om Kumar Vs. Union of India (2001) 2 SCC 386 and UPSRTC Vs. Hoti Lal (2003) 3 SCC 605) Further, discretionary power conferred on an administrative authority must be exercised by that authority reasonably , if the power is exercised unreasonably or capriciously, there is an abuse of power and the action of the authority will be arbitrary in nature and violative of principles of natural justice. Keeping in view said facts and the dictionary meaning of word " reasonable" which means " fair and sensible", fairly good" or "fair and moderate" and an attempt to define the word " reasonable" is to try to count what is not number and measure what is not space. It is a relative term and the facts of a particular controversy must be considered before deciding as to what constitutes " reasonable".
In Stroud's Judicial Dictionary, it has been stated that it would be unreasonable to expect an exact definition of the word 'Reasonable" . Reason aries in its conclusion according to the idiosyncrasy of the individual, and the times of circumstances in which he thinks. The reasoning which built up the old scholastic logic sounds now like the jingling of a child's toy. But mankind must be satisfied with reasonableness within reach , and in cases not covered by authority, the verdict of a jury or the decision of a judge sitting as a jury usually determines what is " reasonable" in each particular case.(See: Gujarat Water Supply & Sewerage Board Vs. Unique Erectors ( Guzrat) (P) Ltd., 1989) 1 SCC 532 and Collector Vs. P. Mangamma , (2003) 4 SCC 488) In the case of G.B. Mabajan and othrs Vs. The Jaigaon Municipal Council and others AIR 1991 SC 1153 Hon'ble the Apex court held that the 'reasonableness' in administrative law must, therefore, distinguish between proper and improper abuse of power."
Like" reasonable" , the term " unreasonable" is also difficult to define precisely. According to dictionary meaning "Unreasonable" means "opposite of reasonable", "not agreeable to reason", " not guided by or based on good sense" or " beyond the limits of acceptability".( See: Concise Oxford English Dictionary (2002) 1571; P.R. Aiyar, Advanced Law Lexicon , Vol. 4 (2005) 4838).
In the case of Associated Provincial Picture Houses Ltd. Vs. Wednesbury Corporation (1947) 2 All E R 680 it was observed that it is true that discretion must be exercised reasonably. But what does it mean? Lawyers familiar with the phraseology used in relation to exercise of statutory discretion often use the word " unreasonable" in a comprehensive sense. It includes many things, such as , taking into account irrelevant or extraneous considerations, colourable exercise of power for collateral purpose or improper object, action being mala fide or malicious , etc, The expression " unreasonableness" thus covers multitude of sins. De Smith also states that " Unreasonableness" ( judicial Review of Administrative Action (1995) 593) denotes extreme behavior which may amount to bad faith or an action which is perverse, absurd or irrational conveying that " no reasonable man could have ever come to it"( Associated Provincial Houses Ltd. Vs. Wednesbury Corporation ( 1947) 2 All ER 680) or " the decision-maker must have taken leave of his senses".(Nettinghamshire County Council Vs. Secy. Of State of the Environment ,(1986) 2 WLR 1 (HL).
Accordingly in the present case by means of impugned order dated 16.6.2010 petitioner has been reverted to the lowest grade in the pay scale applicable to a Constable of Armed Police for a period of three years, retired during the continuance of said punishment as a result of which his post retiral dues has been fixed taking into consideration the last pay drawn by him. So, the said action on the part competent authority is not in accordance with principles of natural justice as well unlawful , in view the principles of Wednesbury unreasonableness because if the petitioner has not retire during the continuous punishment awarded to him by order dated 16.6.2010 passed by Deputy Inspector General of Police/ Senior Superintendent of Police, Kanpur Nagar the affect of the same should be only for three years and thereafter the same would have wiped off and the petitioner should have been restored to the salary paid to the said grade and after attaining the age of superannuation he is able to get the post retiral dues as per the pay scale and other allowances paid to the post of Constable . So the action on the part of competent authority to fix and pay the post retiral dues to the petitioner in view of the impugned order dated 16.6.2010 by which he has been reverted to lowest pay grade and retired during the effect of the said order after attaining the age of superannuation , the petitioner will suffer from monitory loss through out of his entire life is contrary to principles of natural justice , unreasonable and arbitrary as such the interest of justice will sub serve in the instant matter the punishment order dated 16.6.2010 ( Annexure no.1) passed by Deputy Inspector General of Police/ Senior Superintendent of Police, Kanpur Nagar and subsequent order be modified to the extent that the lowest grade in the pay scale applicable to a constable awarded to him should remained in force only till the date of his retirement thereafter his post retiral dues shall be fixed as per last pay drawn by a Constable of Armed Police in the said grade.
For the foregoing reasons, the writ petition is partly allowed and the impugned order of punishment dated 16.6.2010 ( Annexure no.1) passed by Deputy Inspector General of Police/ Senior Superintendent of Police, Kanpur Nagar as well as the appellate and the revisonal order are modified to the extent that the reduction to the lowest grade in pay scale applicable to a Constable in Armed Police for a period of three years would be operative till he retires from service after attaining the age of superannuation on 31.12.2011 thereafter his post retiral dues be calculated and paid to the petitioner as per last pay drawn by him before passing the impugned punishment order dated 16.6.2010.
No order as to cost.
Order Date :- 24.01.2014 dk/