Pawan Kumar Sharma vs Union Of India Through Secy.
2022 Latest Caselaw 1429 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Court No. - 7
 
Case :- WRIT - A No. - 6601 of 2000
 

 
Petitioner :- Pawan Kumar Sharma
 
Respondent :- Union Of India Through Secy.
 
Counsel for Petitioner :- D.S.Misra,Amit Awasthi,Gopal
 
Pandey,Madhur Kant Srivastava,Pankaj Kumar Tiwari,Rama Kant
 
Jaiswal,Sunil Kumar Bajpai
 
Counsel for Respondent :- B.B.Saxena,Ajai Kumar Rai,Ajay
 
Kumar Singh,Shailen Verma
 

 
Hon'ble Irshad Ali,J.

1. Heard learned counsel for the petitioner and Mr. Jaideep Mathur, learned Senior Advocate assisted by Mr. Manu Dixit, Advocate and Mr. A.K. Raj, Advocate for the respondents.

2. By means of the present writ petition, the petitioner has challenged the order of dismissal dated 25.9.1999 (Annexure-7 to the writ petition) and order passed by the appellate authority dated 15.7.2000 (Annexure-11 to the writ petition).

3. Facts of the case are that the petitioner was granted appointment on the post of Junior Operator in B.H.E.L. He was issued a charge sheet on 14.5.1990, levelling charges in regard to reimbursement of alleged medical bills, amounting to Rs.2,310/- and the said charge sheet was served upon the petitioner on 22.5.1990.

4. The petitioner was placed under suspension on 8.11.1990 by the Senior Manager (Production). The enquiry officer submitted enquiry report on 13.3.1991. A First Information Report was lodged against the petitioner for the same allegation and the same charges under Sections 467, 468, 471 and 420 IPC at Police Station Bazar Shukul, District Sultanpur, wherein trial was conducted by the Additional Chief Judicial Magistrate-IV in Case Crime No.1807 of 1998 (State vs Pawan Kumar) and vide judgment and order dated 05-06-1999, the petitioner was acquitted in the case.

5. The disciplinary authority on 13-03-1991 to 05-06-1991 kept silent despite the fact that the enquiry report was submitted by the enquiry officer on 13-03-1991. After the acquittal of the petitioner in the criminal case, order of removal from service of the petitioner was passed on 25-09-1999. The petitioner filed an appeal before the appellate authority challenging the removal order.

6. The petitioner filed Writ Petition No.2327 (S/S) of 2000 before this court which was finally disposed of with the direction to the appellate authority to decide the appeal, taking into consideration the order of acquittal passed by the trial court.

7. The appellate authority decided the appeal on 15-07-2000 and rejected the same. Both the orders of removal and order passed in appeal have been challenged in the present writ petition.

8. First submission of the learned counsel for the petitioner is that under Clause 35 (4)(v), approval of the disciplinary authority of the rank of General Manager is required, which has not been obtained while passing the impugned order, therefore, the order of removal and the order of appellate authority are not sustainable in law.

9. Second ground of challenge is that in view of the judgment passed in the case of G.M. Tank vs State Of Gujarat & others; (2006) 5 Supreme Court Cases 446, in case the employee has been acquitted in a criminal case which is on the same facts and evidence, then the disciplinary committee should take into consideration the fact of acquittal has been made in the trial and should drop the disciplinary proceeding.

10. On the other hand, Mr. Jaideep Mathur, learned Senior Advocate submits that disciplinary proceeding and criminal proceeding are dependent upon different procedure of leading of evidence, therefore, only on the basis of acquittal, the employee is not entitled to be reinstated in service.

11. He placed reliance upon the following judgments :-

(i) Maharashtra State Road Transport Corporation Vs. Dilip Uttam Jayabhay; 2022 SCC OnLine SC 1

(ii) State of Rajasthan and Others Vs. Heem Singh; 2020 SCC OnLine SC 886

(iii) Union of India and others Vs. Sitaram Mishra and another; (2019) 20 Supreme Court Cases 588

12. I have considered the submissions advanced by learned counsel for the parties and perused the material on record.

13. To resolve the controversy involved in the present writ petition, original record has been produced in compliance of the order passed by this court.

14. On perusal, it is evident that approval was accorded by the General Manager Mr. Rajesh Sinha and was communicated to the petitioner, therefore, it is well established that the first ground of challenge of the impugned order is not available to the petitioner, therefore, in the submission there is no force.

15. In regard to the judgment relied upon in the case of G.M. Tank (Supra), relevant paragraphs-28 and 30 are being quoted below :-

"This Court in the case of Depot Manager, A.P. State Road Transport Corpn. Vs. Mohd. Yousuf Miya & Ors., (supra), in paragraph 8 held as under:

"The purpose of departmental enquiry and of prosecution are two different and distinct aspects. The criminal prosecution is launched for an offence for violation of a 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 public duty. The departmental enquiry is to maintain discipline in the service and efficiency of public service. It would, therefore, be expedient that the disciplinary proceedings are conducted and completed as expeditiously as possible. It is not, therefore, desirable to lay down any guidelines as inflexible rules in which the departmental proceedings may or may not be stayed pending trial in criminal case against the delinquent officer. Each case requires to be considered in the backdrop of its own facts and circumstances. There would be no bar to proceed simultaneously with departmental enquiry and trial of a criminal case unless the charge in the criminal trial is of grave nature involving complicated questions of fact and law. Offence generally implies infringement of public duty, as distinguished from mere private rights punishable under criminal law. When trial for criminal offence is conducted it should be in accordance with proof of the offence as per the evidence defined under the provisions of the Evidence Act. Converse is the case of departmental enquiry. The enquiry in a departmental proceedings relates to conduct or breach of duty of the delinquent officer to punish him for his misconduct defined under the relevant statutory rules or law. That the strict standard of proof or applicability of the Evidence Act stands excluded is a settled legal position. Under these circumstances, what is required to be seen is whether the departmental enquiry would seriously prejudice the delinquent in his defence at the trial in a criminal case. It is always a question of fact to be considered in each case depending on its own facts and circumstances. In this case, the charge is failure to anticipate the accident and prevention thereof. It has nothing to do with the culpability of the offence under Sections 304-A and 338 IPC. Under these circumstances, the High Court was not right in staying the proceedings."

The judgments relied on by the learned counsel appearing for the respondents are not 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 his judicial pronouncement with the finding that the charge has not been proved. It is also to be noticed 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."

16. On its perusal, it is evident that in case the charges are same, evidence are same and on that basis, there is honourable acquittal and not on the basis that the witnesses are hostile, same can be taken into consideration while conducting the disciplinary proceeding, therefore, in the present case, there is no honourable acquittal of the petitioner, only due to non leading of evidence and non founding of material to establish the charges, the petitioner was acquitted, therefore, ratio of the judgment is not applicable to the present facts and circumstances of the case.

17. In regard to the judgments relied upon by learned counsel for the respondents in the case of Maharashtra State Road Transport Corporation (Supra), relevant paragraph 23 is quoted below :-

"23. Even from the judgment and order passed by the criminal court it appears that the criminal court acquitted the respondent based on the hostility of the witnesses; the evidence led by the interested witnesses; lacuna in examination of the investigating officer; panch for the spot panchnama of the incident, etc. Therefore, criminal court held that the prosecution has failed to prove the case against the respondent beyond reasonable doubt. On the contrary in the departmental proceedings the misconduct of driving the vehicle rashly and negligently which caused accident and due to which four persons died has been established and proved. As per the cardinal principle of law an acquittal in a criminal trial has no bearing or relevance on the disciplinary proceedings as the standard of proof in both the cases are different and the proceedings operate in different fields and with different objectives. Therefore, the Industrial Court has erred in giving much stress on the acquittal of the respondent by the criminal court. Even otherwise it is required to be noted that the Industrial Court has not interfered with the findings recorded by the disciplinary authority holding charge and misconduct proved in the departmental enquiry, and has interfered with the punishment of dismissal solely on the ground that same is shockingly disproportionate and therefore can be said to be an unfair labour practice as per clause No.1(g) of Schedule IV of the MRTU & PULP Act, 1971."

18. In the case of State of Rajasthan and Others Vs. Heem Singh (Supra), relevant paragraphs 39 to 42 are quoted below :-

"39. In exercising judicial review in disciplinary matters, there are two ends of the spectrum. The first embodies a rule of restraint. The second defines when interference is permissible. The rule of restraint constricts the ambit of judicial review. This is for a valid reason. The determination of whether a misconduct has been committed lies primarily within the domain of the disciplinary authority. The judge does not assume the mantle of the disciplinary authority. Nor does the judge wear the hat of an employer. Deference to a finding of fact by the disciplinary authority is a recognition of the idea that it is the employer who is responsible for the efficient conduct of their service. Disciplinary enquiries have to abide by the rules of natural justice. But they are not governed by strict rules of evidence which apply to judicial proceedings. The standard of proof is hence not the strict standard which governs a criminal trial, of proof beyond reasonable doubt, but a civil standard governed by a preponderance of probabilities. Within the rule of preponderance, there are varying approaches based on context and subject. The first end of the spectrum is founded on deference and autonomy - deference to the position of the disciplinary authority as a fact finding authority and autonomy of the employer in maintaining discipline and efficiency of the service. At the other end of the spectrum is the principle that the court has the jurisdiction to interfere when the findings in the enquiry are based on no evidence or when they suffer from perversity. A failure to consider vital evidence is an incident of what the law regards as a perverse determination of fact. Proportionality is an entrenched feature of our jurisprudence. Service jurisprudence has recognized it for long years in allowing for the authority of the court to interfere when the finding or the penalty are disproportionate to the weight of the evidence or misconduct. Judicial craft lies in maintaining a steady sail between the banks of these two shores which have been termed as the two ends of the spectrum. Judges do not rest with a mere recitation of the hands-off mantra when they exercise judicial review. To determine whether the finding in a disciplinary enquiry is based on some evidence an initial or threshold level of scrutiny is undertaken. That is to satisfy the conscience of the court that there is some evidence to support the charge of misconduct and to guard against perversity. But this does not allow the court to re-appreciate evidentiary findings in a disciplinary enquiry or to substitute a view which appears to the judge to be more appropriate. To do so would offend the first principle which has been outlined above. The ultimate guide is the exercise of robust common sense without which the judges' craft is in vain.

J.The effect of an acquittal

40. In the present case, we have an acquittal in a criminal trial on a charge of murder. The judgment of the Sessions Court is a reflection of the vagaries of the administration of criminal justice. The judgment contains a litany of hostile witnesses, and of the star witness resiling from his statements. Our precedents indicate that acquittal in a criminal trial in such circumstances does not conclude a disciplinary enquiry. In Southern Railway Officers Association v. Union of India 9, this Court held:

"37. Acquittal in a criminal case by itself cannot be a ground for interfering with an order of punishment imposed by the disciplinary authority. The High Court did not say that the said fact had not been taken into consideration. The revisional authority did so. It is now a well-settled principle of law that the order of dismissal can be passed even if the delinquent official had been acquitted of the criminal charge."

41. In Inspector General of Police v. S. Samuthiram 10, a two-Judge Bench of this Court held that unless the accused has an "honorable acquittal" in their criminal trial, as opposed to an acquittal due to witnesses turning hostile or for technical reasons, the acquittal shall not affect the decision in the disciplinary proceedings and lead to automatic reinstatement. But the penal statutes governing substance or procedure do not allude to an "honourable acquittal". Noticing this, the Court observed:

"Honourable acquittal

24. The meaning of the expression "honourable acquittal" came up for consideration before this Court in RBI v. Bhopal Singh Panchal [(1994) 1 SCC 541 : 1994 SCC (L&S) 594 : (1994) 26 ATC 619] . In that case, this Court has considered the impact of Regulation 46(4) dealing with honourable acquittal by a criminal court on the disciplinary proceedings. In that context, this Court held that the mere acquittal does not entitle an employee to reinstatement in service, the acquittal, it was held, has to be honourable. The expressions "honourable acquittal", "acquitted of blame", "fully exonerated" are unknown to the Code of Criminal Procedure or the Penal Code, which are coined (2009) 9 SCC 24 (2013) 1 SCC 598 by judicial pronouncements. It is difficult to define precisely what is meant by the expression "honourably acquitted". When the accused is acquitted after full consideration of prosecution evidence and that the prosecution had miserably failed to prove the charges levelled against the accused, it can possibly be said that the accused was honourably acquitted.

25. In R.P. Kapur v. Union of India [AIR 1964 SC 787] it was held that even in the case of acquittal, departmental proceedings may follow where the acquittal is other than honourable. In State of Assam v. Raghava Rajgopalachari [1972 SLR 44 (SC)] this Court quoted with approval the views expressed by Lord Williams, J. in Robert Stuart Wauchope v. Emperor [ILR (1934) 61 Cal 168] which is as follows: (Raghava case [1972 SLR 44 (SC)] , SLR p. 47, para 8) "8. ... ''The expression "honourably acquitted" is one which is unknown to courts of justice. Apparently it is a form of order used in courts martial and other extrajudicial tribunals. We said in our judgment that we accepted the explanation given by the appellant, believed it to be true and considered that it ought to have been accepted by the government authorities and by the Magistrate. Further, we decided that the appellant had not misappropriated the monies referred to in the charge. It is thus clear that the effect of our judgment was that the appellant was acquitted as fully and completely as it was possible for him to be acquitted. Presumably, this is equivalent to what government authorities term "honourably acquitted".'" (Robert Stuart case [ILR (1934) 61 Cal 168] , ILR pp. 188-89)

26. As we have already indicated, in the absence of any provision in the service rules for reinstatement, if an employee is honourably acquitted by a criminal court, no right is conferred on the employee to claim any benefit including reinstatement. Reason is that the standard of proof required for holding a person guilty by a criminal court and the enquiry conducted by way of disciplinary proceeding is entirely different. In a criminal case, the onus of establishing the guilt of the accused is on the prosecution and if it fails to establish the guilt beyond reasonable doubt, the accused is assumed to be innocent. It is settled law that the strict burden of proof required to establish guilt in a criminal court is not required in a disciplinary proceedings and preponderance of probabilities is sufficient. There may be cases where a person is acquitted for technical reasons or the prosecution giving up other witnesses since few of the other witnesses turned hostile, etc. In the case on hand the prosecution did not take steps to examine many of the crucial witnesses on the ground that the complainant and his wife turned hostile. The court, therefore, acquitted the accused giving the benefit of doubt. We are not prepared to say that in the instant case, the respondent was honourably acquitted by the criminal court and even if it is so, he is not entitled to claim reinstatement since the Tamil Nadu Service Rules do not provide so."

42. In the present case, the respondent was acquitted of the charge of murder. The circumstances in which the trial led to an acquittal have been elucidated in detail above. The verdict of the criminal trial did not conclude the disciplinary enquiry. The disciplinary enquiry was not governed by proof beyond reasonable doubt or by the rules of evidence which governed the criminal trial. True, even on the more relaxed standard which governs a disciplinary enquiry, evidence of the involvement of the respondent in a conspiracy involving the death of Bhanwar Singh would be difficult to prove. But there are, as we have seen earlier, circumstances emerging from the record of the disciplinary proceedings which bring legitimacy to the contention of the State that to reinstate such an employee back in service will erode the credibility of and public confidence in the image of the police force.

19. Relevant paragraphs 13 to 15 in the case of Union of India and others Vs. Sitaram Mishra and another (Supra) are quoted below :-

"13. The second ground, which has weighed with the High Court, is equally specious. A disciplinary enquiry is governed by a different standard of proof than that which applies to a criminal case. In a criminal trial, the burden lies on the prosecution to establish the charge beyond reasonable doubt. The purpose of a disciplinary enquiry is to enable the employer to determine as to whether an employee has committed a breach of the service rules. In the present case, the learned Single Judge has adverted to Circular Order No.16/85, which inter alia imposed the following obligation upon the members of the CRPF:

"(c) strict fire discipline should be enforced by supervisory staff at all levels. In other words, loaded, and cocked weapons should not be kept by the troops while in barracks/non operational places.

14. Severe disciplinary action must be taken against the defaulters." The fact that the first respondent was acquitted in the course of the criminal trial cannot operate ipso facto as a ground for vitiating the finding of misconduct which has been arrived at during the course of the disciplinary proceedings. The High Court, in our view, has drawn an erroneous inference from the decision of this Court in Capt M Paul Anthony v Bharat Gold Mines Ltd2. The High Court adverted to the following principle of law laid down in the above judgment:

"...While in the departmental proceedings the standard of proof is one of preponderance of the probabilities, in a criminal case, the charge has to be proved by the prosecution beyond reasonable doubts. The little exception may be where the departmental proceedings and the criminal case are based on the same set of facts and the evidence in both the proceedings is common without there being a variance."

15. It is undoubtedly correct that the charge in the criminal trial arose from the death of a co-employee in the course of the incident resulting from the firing of a bullet which took place from the weapon which was assigned to the first respondent as a member of the Force. But the charge of misconduct is on the ground of the negligence of the first respondent in handling his weapon and his failure to comply with the departmental instructions in regard to the manner in which the weapon should be handled. Consequently, the acquittal in the criminal case was not a ground for setting aside the penalty which was imposed in the course of the disciplinary enquiry. Hence, having regard to the parameters that govern 2 (1999) 3 SCC 679 the exercise of judicial review in disciplinary matters, we are of the view that the judgment of the Division Bench of the High Court is unsustainable."

20. On perusal of the aforesaid judgments, it is evident that both the proceedings; criminal proceeding as well as disciplinary proceeding may go on and the judgment of the trial court will not affect the disciplinary proceeding because of the fact that the same is based on different manner of holding the proceeding by adducing evidence to prove the charges.

21. Same view was taken in Union of India and others Vs. Sitaram Mishra and another (Supra) as well as in State of Rajasthan and Others Vs. Heem Singh (Supra).

22. In view of the reasons recorded above and the law report relied upon by learned counsel for the respondents, I am of the considered opinion that no illegality has been committed in passing the impugned orders.

23. Accordingly, the writ petition fails and is hereby dismissed.

24. The parties shall bear their own costs.

Order Date :- 26.4.2022

Gautam