Jitendra Singh vs Union Of India And Others
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Allahabad High Court

Jitendra Singh vs Union Of India And Others on 22 December, 2023

Author: Saurabh Srivastava

Bench: Saurabh Srivastava

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


Neutral Citation No. - 2023:AHC:242448
 
Court No. - 52
 

 
Case :- WRIT - A No. - 18146 of 2012
 

 
Petitioner :- Jitendra Singh
 
Respondent :- Union Of India And Others
 
Counsel for Petitioner :- M.K. Pandey,Alok Kumar Yadav,C.P. Pandey
 
Counsel for Respondent :- A.S.G.I.,K.M. Dubey,Pooja Agarwal,R.B. Singhal
 

 
Hon'ble Saurabh Srivastava,J.
 

1. Heard Sri Alok Kumar Yadav learned counsel for petitioner and Ms. Pooja Agarwal, learned counsel for respondents.

2. Present petition has been filed seeking following reliefs:

"(i) to issue a writ, order or direction in the nature of certiorari call for records and quash the revisional order dated 28.11.2011 passed by Inspector General, Respondent no. 3.

(ii) Issue a writ order or direction in the nature of certiorari call for record and quash order dated 25.09.2004 passed by Senior Commandant, Respondent no. 5 and appellate order dated 13.1.2005 (Annexure no. 7) passed by D.I.G. respondent no. 4 respectively.

(iii) Issue an order or direction or writ in the nature of Mandamus and direct the respondents to reinstate the petitioner in service with all consequential benefits and pay him month to month."

Submission on behalf of petitioner:

3. It is the case of petitioner that he was appointed as Head Constable/Driver in Central Industrial Security Force (CISF). He was deployed for assault duty and was not detailed for any kind of duty in the obstacle ground at Narora Atomic Power Plant, Anupshahar, Bulandshahar. On 03.09.2004 around 2:30 p.m, five ladies were spotted inside the Atomic Power Plant by the Paramjit Singh, who entered, unauthorizingly. Paramjit Singh raised alarm. Petitioner came to his rescue and both the petitioner and Paramjit Singh detained only three ladies, Meena, Maharani and Rani, while two escaped. Petitioner and Paramjit Singh brought aforesaid ladies at Security Gate where the villagers, local politicians and media created scene.

4. A First Information Report (F.I.R) was lodged against petitioner being Case Crime no. 182 of 2004, on 12.09.2004 under Section 376 of Indian Penal Code, 1860 and 3(1) 12 and 3(2)5 of Scheduled Caste and Scheduled Tribes Act and he was suspended on 13.09.2004.

5. To challenge the aforesaid F.I.R, petitioner left Narora Power Plant on 19.02.2004 and jointly filed Criminal Misc. Writ Petition no. 7426 of 2004 before this Court which came to be dismissed on 23.09.2004. After obtaining certified copy of the said order dated 23.09.2004, he reached Narora Power Plant on 25.09.2004.

6. Learned counsel for petitioner further submitted that based on findings of preliminary inquiry without giving any opportunity to the petitioner, the respondent no. 4 dismissed the petitioner from services on dated 25.09.2004 based on his involvement in said Criminal Case.

7. Petitioner filed Statutory Appeal before the respondent no. 3 who dismissed the said appeal by an order dated 13.01.2005. Petitioner filed Revision against the order of dismissal dated 25.09.2004 and Appellate order dated 13.01.2005 which was also rejected by respondent no. 2 vide order dated 09.08.2005. Meanwhile, before the Criminal Court petitioner was acquitted by judgment and order dated 07.06.2007.

8. Learned counsel for petitioner submitted that the petitioner challenged aforesaid orders dated 25.09.2004, 13.01.2005 and 09.08.2005, respectively passed by respondent nos. 5, 4 and 2 before this Hon'ble Court by filing Writ A no. 78351 of 2005, which was disposed of vide judgment and order dated 17.08.2011, commanding the respondent no. 2 to reconsider his decision of dismissal against the petitioner on the ground that in criminal case petitioner has been acquitted.

9. In pursuance of order dated 17.08.2011, petitioner filed a representation before the respondent no. 3, who rejected the said representation vide order dated 28.11.2011.

10. Learned counsel for petitioner challenged the impugned orders on the grounds that any evidence collected during preliminary inquiry cannot become basis of passing a final order inasmuch as preliminary inquiry is the fact-finding Inquiry and no reliance can be placed while passing the final order of dismissal. Petitioner had deserted the Force, was without any basis inasmuch as the petitioner left the Narora Power Plant, on 19.09.2004 and came back with the certified copy of the judgment and order dated 23.09.2004 passed in Criminal Misc. Writ Petition no. 7426 of 2004. Thus, it does not amount to desertion inasmuch as desertion has to be permanent since the petitioner has gone to file the Writ Petition before this Hon'ble Court. Thus, the impugned orders, dated 25.09.2004, 13.01.2005, 09.08.2005 and 28.11.2011 are vitiated and contrary to law.

11. For substantiating their arguments, learned counsel for petitioner relied upon the following judgments passed by Hon'ble Supreme Court:

1. Virendra Kumar through his wife vs. The Chief of the Army Staff, New Delhi, reported in AIR 1986 SC 1060 and,

2. G.M. Tank Vs. State of Gujarat and others reported in (2006) 5 SCC 446.

Submission on behalf of respondents:

12. Per contra, learned counsel for respondent submitted that while posted at STF Wing of CISF Unit NAPS Narora, the petitioner was deployed for assault duty while Paramjit Singh was deployed for patrolling/mess duty on 03.09.2004. An information was received in the Unit on 03.09.2004 around 1430 hrs that petitioner along with HC/Dvr Paramjit Singh was involved in an incident of misbehaving with two ladies of Village Nityanadpur, Police Station Narora. A preliminary enquiry was conducted.

13. The petitioner did not inform anybody about the whole incident neither at Plant Main Gate, STF Barrack nor made any GD entry to that effect while In-charge STF Wing and other Sub Officers of STF were present at STF Barracks. The incident cropped up after lodging of FIR. The incident was broadcasted on various TV news channels and articles were published in Hindi daily Dainik Jagran tarnishing the image of the CISF in the vicinity and brought ill fame and disgrace to the Force.

14. The petitioner was placed under suspension vide order dated 13.09.2004 with specific order that during the period of suspension the petitioner shall not leave the headquarters without obtaining prior permission of the authorities. However w.e.f 19.09.2004 the petitioner absconded leaving the headquarters without prior permission.

15. Consequently by virtue of powers under Rule 32 read with Schedule - I and Rule 34 and Rule 39(ii) of CISF Rules, 2001, the petitioner was imposed punishment of dismissal from service vide order dated 25.09.2004 passed by the Sr. Commandant, CISF Unit NAPS Narora.

16. In compliance to the order of the Hon'ble Court dated 17.08.2011 the Revisional Authority considered the representation of the petitioner and dismissed the same vide order dated 28.11.2011 passed by Inspector General/ WS, CISF, Mumbai categorically recording among others that criminal charges emanating from F.I.R. dated 12.09.2004 was separate and not subject matter for departmental action.

17. Records establish that charge in disciplinary proceeding and in criminal proceeding against the petitioner were different as in the criminal case he was charged for committing an offence under section 376 IPC and Section 3(1) 12 SC/ST Act while in departmental enquiry the charge was mainly breach of discipline and violating orders being member of armed forces. In view thereof benefit of acquittal in judicial proceeding has no relevance. The Hon'ble Supreme Court in Depot Manager, A.P. State Road Transport Corporation vs. Mohd. Yousuf Miya and others, (1997) 2 SCC 699 has held that:

"The purpose of departmental enquiry and of prosecution are two different and distinct aspects. The criminal prosecution is launched for an offence in 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. The enquiry in a departmental proceedings relates to conduct of 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."

18. In Management of Bharat Heavy Electricals Limited vs. M. Mani (2018) 1 SCC 285 the Hon'ble Supreme Court has reiterated the same.

19. In Samar Bahadur Singh vs. State of U.P. and Others (2011) 9 SCC 94 the Hon'ble Supreme Court held that:

"The appellant was missing from the headquarters on 27.10.1991 from the morning and he was caught in the case registered under Section 392 I.P.C. in the evening. The appellant wishes to make a defence that he was advised to take medicine but the prescription which is placed in the departmental proceedings does not indicate that any medicine was prescribed in that prescription. The appellant was arrested in the criminal case in connection with stealing of a bottle of foreign liquor and even during that time he had consumed alcohol prior to the incident. These facts have been brought out in the inquiry proceedings initiated against him in which the appellant did not participate. Therefore, whatever allegations have been brought against him, have been proved by placing cogent materials on record, which go unrebutted due to his absence in the proceedings. We also find that the appellant has been charged on the ground of negligence, dereliction of duty and consuming liquor. The aforesaid facts are found proved in the departmental proceedings.

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.

The appellant belongs to a disciplinary force and the members of such a force is required to maintain discipline and to act in a befitting manner in public. Instead of that, he was found under the influence of liquor and then indulged himself in an offence. Be that as it may, we are not inclined to interfere with the satisfaction arrived at by the disciplinary authority that in the present case punishment of dismissal from service is called for."

20. The Hon'ble Supreme Court in State of Rajasthan and Others vs. Heem Singh, (2021) 12 SCC 569 has summarized the effect of acquittal in criminal proceedings on disciplinary proceedings and held:

"These circumstances are coupled with respondent's movements at and around the time of the murder, commencing with but not confined to his being at the village on leave for two days coinciding with the murder. This may not have been sufficient to sustain a conviction on a charge of murder in the sessions trial. But the State had sufficient material to conclude that the connection of the respondent to the incident would affect the reputation of its police force and that the presence of the respondent as a member of the force was not in the interest of public administration. Whether on the basis of the evidence, the respondent could have been implicated in the conspiracy to commit murder of Bhanwar Singh is one aspect of the matter. Evidently direct evidence to sustain a charge of conspiracy is difficult to come by even in the course of a criminal trial. Quite independent of this is the issue whether the connection of the respondent with the circumstances leading to the death of Bhanwar Singh affected his ability to continue in the State police force without affecting its integrity and reputation. The latter aspect is the one on which the judgment of the Division Bench is found to be deficient in its reasoning.

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."

21. Similar views have been reiterated in Shashi Bhushan Prasad vs. Inspector General, Central Industrial Security Force and others (2019) 7 SCC 797, Union of India and Others vs. Sitaram Mishra and Another (2019) 20 SCC 588, Maharashtra State Road Transport Corporation vs. Dilip Uttam Jayabhay (2022) 2 SCC 696 and Union of India and others vs. Subrata Nath (2022) SCC OnLine SC 1617.

Conclusion

22. After hearing the submissions extended on behalf of learned counsels for rival parties, after perusing the records and giving full regards to the judgments rendered by Hon'ble Supreme Court and relied upon by learned counsels for the parties, it is crystal clear that submission made by learned counsel for the petitioner on the factual aspect are difficult to be gone into by this Court in proceedings of this petition where writ jurisdiction under Article 226 of the Constitution of India has been invoked.

23. It is well settled while judicially reviewing any punishment order passed in disciplinary proceedings, the scope of interference of this Court is very limited and is confined to finding of fact the procedural flaws, if any.

24. The arguments raised by learned counsel for respondents seems to be forceful.

25. The entire disciplinary proceeding initiated against petitioner and the punishment has been based on the concurrent findings of facts which cannot be interfered by this Court. Moreover, no procedural flaw has been highlighted by learned counsel for petitioner while challenging the punishment order through the present petition.

26. In view of aforesaid, I do not find any good ground to interfere in the impugned orders. The instant petition thus lacks merit is accordingly dismissed.

Order Date :- 22.12.2023

Shaswat