Sharad S/O Bhaskar Manekar vs Union Of India, Through Its ...
2022 Latest Caselaw 11224 Bom

Judgment

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         IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                    NAGPUR BENCH, NAGPUR

                 WRIT PETITION NO.5030 OF 2011

Sharad s/o Bhaskar Manekar,
Aged 34 years, Occupation : Nil,
R/o Jalalpura Chowk,
Behind Fakri Store, Khamgaon,
District : Buldhana.                    ..... Petitioner.

                          :: V E R S U S ::

1. Union of India,
Through its Secretary,
Department of Home,
New Delhi.

2. Director General of
Central Reserve Police Force,
Having its office at CGO Complex,
Lodhi Road,
New Delhi.

3. Inspector General of Police,
West Sector, Central Reserve
Police Force, 3rd Floor, CGO
Complex, CBD, Belapur,
New Delhi.                         ..... Respondents.

=========================================
Shri S.P.Palshikar, Advocate for the Petitioner.
Ms Neerja G.Choubey, Advocate for Respondents.
=========================================

CORAM : A.S.CHANDURKAR & URMILA JOSHI-PHALKE, JJ.
JUDGMENT RESERVED ON : 04/10/2022
JUDGMENT PRONOUNCED ON : 21/10/2022

JUDGMENT (Per : Urmila Joshi-Phalke, J.)

.....2/-

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1. Heard Shri S.P.Palshikar, learned Advocate for the

petitioner and Ms Neerja G.Choubey, learned Advocate for

respondents.

2. By this writ petition, the petitioner challenges order

dated 31.12.2007 passed by respondent No.3 - the Deputy

Inspector General of Police, Group Centre, Central Reserve Police

Force), Nagpur by which appeal of the petitioner was dismissed by

denying any interference in order passed by the Disciplinary

Authority in enquiry proceedings.

3. The petitioner was initially appointed on 1.1.1997 as a

Constable in the Central Reserve Police Force and was posted at

Nagpur. As per contention of the petitioner, his service record was

unblemished and he worked to an utmost satisfaction of his

superiors. Since the petitioner was working as a Constable in the

Central Reserve Police Force, he has to work as per his deputation.

The alleged incident took place when he was working as a Constable

in the Central Reserve Police Force at Nagpur. At the relevant time,

he was discharging his duties as Guard duty and he was assigned

work to look after arms and ammunition. While working at Nagpur,

he was served with chargesheet dated 22.6.2007 along with Hindi

transcription of the said chargesheet. As per the said chargesheet,

.....3/-

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three charges were levelled against him. The charges which were

levelled against him, are as follows:

No.1 : That Force No.971270613 C/GD Sharad

Bhaskar Manekar, while was posted as Member

of the Force at the Central Reserve Police Force,

Nagpur and was functioning on the post of

C/GD, under Section 11(1) of the Central

Reserve Police Force Act, 1949, committed a

misconduct on 15.2.2007 by sexually assaulting

XYZ who was working as Housemaid at the

family residence of Shri A.K.Nargeri, Second

Class Officer (Presently posted at Silcher) at

Nagpur.

No.2 : That Constable of Force No.971270613

C/GD Sharad Bhaskar Manekar, while was

functioning as Constable/GD at the Central

Reserve Police Force, Nagpur, committed an act

of misconduct under Section 11(1) of the

Central Reserve Police Force Act, 1949, where

under on 11.4.2007 at about 9:00, he ran away

from the Camp and was not on duty, till

11.5.2007 without permission or without

.....4/-

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obtaining leave sanctioned from the Competent

Authority.

No.3 : That Force No.971270613 C/GD Sharad

Bhaskar Manekar, while was functioning as

Member of the Force at Group Centre, the

Central Reserve Police Force, Nagpur,

committed a misconduct under Section 11(1) of

the Central Reserve Police Force Act, 1949,

where under on 12.5.2007 on furnishing a bond

of Rs.10,000/- at 21:35 hours and on releasing

on bail from the police custody had not

resumed the duties and remained absent

without obtaining sanctioned leave till

17.5.2007.

4. The petitioner had denied above charges levelled

against him by giving his reply dated 1.11.2007. By the said reply,

he denied entire allegations against him. As per his contention, on

11.2.2007 he had been to residence of Madam Nargeri. The door of

her house was locked. He knocked the door, but nobody has

opened the door. He saw that one window was open to some extent

and he observed that Madam Nargeri and one LIC Officer Shri Vijay

were in a compromised condition and, therefore, he is falsely

.....5/-

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implicated in the alleged incident. He was not at all concerned with

the alleged incident. He was implicated merely because he had

seen the incident of extra marital relation of Madam Nargeri.

5. As respondent Nos.2 and 3 were not satisfied with

explanations, they decided to initiate an enquiry. The petitioner had

participated in the enquiry. The presenting officer had recorded

evidence of relevant witnesses. The petitioner had also submitted

his reply. After recording evidence and considering material, the

Enquiry Officer held that charge Nos.1 to 3 are proved and the

petitioner was found guilty in the enquiry.

6. Being aggrieved by final order passed by the

Competent Authority, the petitioner had preferred an appeal before

the Appellate Authority i.e. respondent No.3. The Appellate

Authority had also dismissed the appeal and confirmed findings of

the Competent Authority. By this petition, the petitioner has

challenged the findings of the Competent Authority and the

Appellate Authority on the ground that the petitioner had not given

proper opportunity. The Departmental Enquiry conducted against

him is absolutely illegal, it is violation of principles of natural justice

and with pre-determinative view to punish the petitioner. He was

not allowed to engage a "next friend" in the Departmental Enquiry

as the petitioner is a layman who is not aware about the procedure

.....6/-

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of the Departmental Enquiry. He further challenged the Enquiry

Report and findings of the Disciplinary Authority as well as the

Appellate Authority on the ground that the Enquiry Officer had

conducted and completed the enquiry in a very hasty manner

approximately within one month without giving an opportunity and

imposed punishment of dismissal. He further submitted that the

allegation that the petitioner had sexually assaulted a maidservant

was baseless and there was no evidence to prove the said fact. It is

further contended that the enquiry conducted was merely farce and

violative of principles of natural justice and, therefore, findings

recorded by the Enquiry Officer and the Appellate Authority deserve

to be set aside.

7. The respondents submitted their response to the

petition and denied the contentions. It is contended by respondents

that an opportunity to cross-examine witnesses and adduce

evidence was given to the petitioner. The petitioner was given an

ample opportunity during course of the enquiry to defend his case.

The statements of witnesses were recorded by the Enquiry Officer in

the presence of the petitioner. The opportunity to cross-examine

witnesses was granted to him. The Disciplinary Authority had

served a copy of report by giving 15 days' time to submit his

representation. Thus, contentions of the petitioner are baseless and

.....7/-

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not sustainable. There is no merit in the petition and, therefore,

interference is not called for.

8. Shri S.P.Palshikar, learned Advocate for the petitioner,

submitted that by chargesheet three charges were levelled against

the petitioner. It is held by the Enquiry Officer that all charges are

proved. In fact, the charge of sexual assault on a maidservant was

not proved. He further submitted that the petitioner was also

prosecuted for offences punishable under Section 376 of the Indian

Penal Code and under Section 3(1) (x) of the Scheduled Castes and

the Scheduled Tribes (Prevention of Atrocities), Act, 1989. During

the trial, the petitioner denied charges and witnesses were cross-

examined and the Sessions Court acquitted the petitioner as

charges were not proved beyond the reasonable doubt. Learned

Advocate for the petitioner further submitted that no appeal is filed

against the judgment of acquittal. The witnesses PW6 Rumikumari

Khaklari and PW8 Dr.Anil Humne were examined before the

Sessions Court. Said witnesses were also examined before the

Enquiry Officer also. Admittedly, there was no evidence to prove

the charge of offence punishable under Section 376 Of the Indian

Penal Code and, therefore, the Sessions Court acquitted the

petitioner. The Enquiry Officer had not considered the evidence

before it and wrongly held that charges are proved. Learned

.....8/-

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Advocate for the petitioner further submitted that if manner, in

which the enquiry was conducted, is seen it reveals that the

chargesheet was served upon the petitioner on 22.6.2007 and the

enquiry was concluded on 17.11.2007. This fact itself is sufficient to

show that the enquiry was conducted in a hasty manner without

giving a proper opportunity and the same is in violation of the

principles of natural justice and, therefore, interference in this

petition is called for by setting aside the order of dismissal.

9. In support of his contentions, Shri S.P.Palshikar,

learned Advocate for the petitioner, placed reliance upon the

decision of the Honourable Apex Court in the case of Ashoo

Surendranath Tewari vs. Deputy Superintendent of Police, EOW, CBI,

reported in (2020) 9 SCC 636 wherein it is held by the Honourable

Apex Court that criminal proceeding and departmental proceeding -

standard of proof - difference between - reiterated, standard of

proof in departmental proceeding, being based on preponderance of

probability, is somewhat lower than standard of proof in criminal

proceeding, where case has to be proved beyond reasonable doubt.

It is further held by the Honourable Apex Court that It is trite that

the standard of proof required in criminal proceedings is higher than

that required before the adjudicating authority and in case the

accused is exonerated before the adjudicating authority whether his

.....9/-

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prosecution on the same set of facts can be allowed or not is the

precise question which falls for determination in this case. After

referring to various judgments, the Honourable Apex Court then

culled out the ratio of those decisions in paragraph 38. He further

placed reliance upon the decision of the Honourable Apex Court in

the case of B.C.Chaturvedi vs. Union of India and ors., reported at

(1995) 6 SCC 749 wherein the Honourable Apex Court discussed

scope of judicial review and held that the Court/Tribunal cannot

interfere with findings of fact based on evidence and substitute its

own independent findings. He further placed reliance upon the

decision of the Honourable Apex Court in the case of G.M.Tank vs.

State of Gujarat and anr, reported at AIR 2006 SC 2129 wherein the

Honourable Apex Court held that the Criminal Court honourably

acquitted the employee - findings to contrary recorded in

departmental proceedings, unfair and oppressive - dismissal order

liable to be set aside.

10. On the other hand, Ms Neerja G.Choubey, learned

Advocate for respondents, submitted that an ample opportunity was

granted to the petitioner. However, the petitioner failed to cross-

examine witnesses. She invited our attention to show that

opportunity to submit reply was also granted. Though the

opportunity was granted, the petitioner failed to cross-examine

.....10/-

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witnesses. The entire incident was proved before the Enquiry

Officer. The prosecutrix was from Assam State. The evidence

shows that the petitioner was acquainted with the Assami language.

The evidence further discloses that he had obtained cassettes of

Assami language from Mrs.Nargeri. The petitioner had conceded

that he had obtained the said cassettes. If he is not aware about

Assami language, question remains why he obtained the cassettes

of Assami language. She further submitted that allegations against

the petitioner was that the prosecutrix was not acquainted with

anybody. The prosecutrix was working as maidservant at the house

of Mrs.Nargeri. The petitioner got acquaintance with the

prosecutrix by communicating with her in Assami language by

representing himself that he is from Assam and subjected her

sexual assault on the promise of marriage. It further revealed

during the evidence that the petitioner was already married. He

suppressed his identity that he belongs to the State of Maharashtra

and represented that he is from Assam and promised her and on

the said promise subjected her sexual assault. All these facts are

proved before the Enquiry Officer. Learned Advocate for

respondents further submitted that the Sessions Court had

acquitted the petitioner by giving benefit of doubt.

.....11/-

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11. In support of her contentions, Ms Neerja G.Chaubey,

learned Advocate for respondents, placed reliance upon the decision

in Writ Petition No.1917 of 2021 (Ravindra Prasad Munneshwar

Prasad vs. Union of India, thr.Secretary, Ministry of Defence, New

Delhi and ors) decided on 31.3.2022 by the Division Bench of this

Court wherein one of us is Member (Shri A.S.Chandurkar, J.). The

Division Bench of this Court referring judgments of the Honourable

Apex Court discussed expressions "honourable acquittal" and held

that the expressions "honourable acquittal", "acquitted of blame",

"fully exonerated" are unknown to the Code of Criminal Procedure

or the Penal Code and said expressions are coined by judicial

pronouncements. It is held by the Division Bench of this Court that

after giving benefit of doubt, acquittal could not be treated as to be

a honourable acquittal. Learned Advocate for respondents further

placed reliance upon the decision of the Honourable Apex Court in

the case of Deputy Inspector General of Police and another vs.

S.Samuthiram reported at (2013) 1 SCC 598 wherein the

Honourable Apex Court held that if any of acquittal in criminal

proceedings, there is no impact if acquittal is on account of flawed

prosecution, but departmental enquiry is based on adequate

evidence. Learned Advocate for respondents further placed reliance

upon the decision of the High Court of Delhi in the case of Dinesh

Kumar Kain vs. Assistant General Manager, Corporation Bank and

.....12/-

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anr, reported at 2006 SCC OnLine Del 448 wherein the High Court

of Delhi held that acquittal of employee on benefit of doubt -

decision of bank not to grant full salary for the duration of

suspension, in the circumstances, affirmed by the order denying

continuity of service for the purpose of gratuity and pension,

quashed. On the basis of these decisions, learned Advocate for

respondents submitted that proper opportunity was granted to the

petitioner. The enquiry was conducted by observing the principles

of natural justice and hence no interference is called for.

12. Admittedly, by this petition, the petitioner had

challenged findings of the Enquiry Officer and the order passed by

the Competent Authority by invoking the writ jurisdiction. This

Court has limited jurisdiction in exercise of powers under Article 226

of the Constitution of India. It is well settled that in exercise of

judicial review the Court does not act as an Appellate Forum over

findings of the Disciplinary Authority. The Court does not re-

appreciate the evidence on the basis of which findings of

misconduct has been arrived at in the course of Disciplinary

Enquiry. The Court in exercise of judicial review must restrict its

review to determine whether, (a) rules of natural justice have been

complied with, (b) findings of misconduct is based on some

evidence, (c) statutory rules governing the conduct of Disciplinary

.....13/-

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Enquiry have been observed, and (d) findings of the Disciplinary

Authority suffer from any perversity or punishment is

disproportionate to proved misconduct.

13. Learned Advocate for the petitioner urged that no

proper opportunity to represent through a "next friend' was granted

to the petitioner. The record shows that first time the petitioner had

raised this issue before this Court. The petitioner had not filed any

application before the Enquiry Officer seeking permission to engage

a "next friend" in the Departmental Enquiry by raising a ground that

he is a layman and not aware about procedure of the Departmental

Enquiry. Learned Advocate for the petitioner, while hearing was

going on, had not pointed out that at any point of time the

petitioner had filed an application before the Enquiry Officer,

however the Enquiry Officer had not considered the same and

rejected the prayer. Even from the order passed by the Appellate

Authority, nowhere it reveals that the petitioner had raised ground

that his prayer for appointing a "next friend" was not considered.

Thus, it is apparent that for the first time the said ground was

raised by the petitioner that opportunity to represent a "next friend"

was not granted to him.

Even if for the sake of argument the contention of the petitioner is

accepted, in catena of decisions the Honourable Apex Court held

.....14/-

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that there is no absolute right in favour of delinquent officer to be

represented in departmental proceedings through agent of his

choice and the same can be restricted by employee.

14. The Honourable Apex Court, in the case of The

Rajasthan Marudhara Gramin Bank (RMGB) & anr vs. Ramesh

Chandra Meena and anr reported at 2022 LiveLaw (SC) 6, referring

decisions in the cases of Dunlop Rubber Co. (India) Ltd vs.

Workmen, reported at (1965) 2 SCR 139 and Kalindi and ors vs.

Tata Locomotive and Engineering Company Limited reported at

(1960) 3 SCR 407 held that there is no per se right to

representation in the departmental proceedings through a

representative through own union unless the company by its

Standing Order recognized such a right. It is observed that refusal

to allow representation by any Union unless the Standing Orders

confer that right does not vitiate the proceedings. It is further

observed that in holding domestic enquiries, reasonable opportunity

should be given to the delinquent employees to meet the charge

framed against them and it is desirable that at such an enquiry the

employee should be given liberty to represent their case by persons

of their choice, if there is no standing order against such a course

being adopted and if there is nothing otherwise objectionable in the

said request. It is further observed that denial of such an

.....15/-

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opportunity cannot be said to be in violation of principles of natural

justice. It is further observed by the Honourable Apex Court, by

referring the decision in the case of Crescent Dyes and Chemicals

Limited vs. Ram Naresh Tripathi reported at (1993) 2 SCC 115, that

in the departmental proceedings the right to be represented

through counsel or agent can be restricted, controlled or regulated

by statute, rules, regulations or Standing Orders. A delinquent has

no right to be represented through counsel or agent unless the law

specifically confers such a right. The requirement of the rule of

natural justice insofar as the delinquent's right of hearing is

concerned, cannot and docs not extend to a right to be represented

through counsel or agent.

15. In the case in hand, herein, learned Advocate for the

petitioner had not pointed out that there was Rule or Standing

Orders which give right to the petitioner to seek permission to

represent him through agent. No such Rule or Law is specifically

pointed out which confers right to the petitioner and, therefore,

contention of the petitioner that the opportunity was not granted to

him and, therefore, it is violation of principles of natural justice. It

is held by the Honourable Apex Court in the case of The Rajasthan

Marudhara Gramin Bank (RMGB) & anr vs. Ramesh Chandra Meena

.....16/-

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and anr cited supra that denial of such an opportunity cannot be

said to be the violation of principles of natural justice.

16. The other grounds raised by the petitioner are that the

enquiry was conduced in a hasty manner without giving him proper

opportunity and the charges levelled against him are not proved

before the Enquiry Officer. We have perused the Enquiry Report.

The charge levelled against the petitioner was that being a member

of CISF, he committed a misconduct by sexually assaulting XYZ who

was working as maidservant at the resident of Shri A.K.Nargeri,

Second Class Officer at Nagpur. Further charge levelled against the

petitioner was that after the incident, he went on leave without prior

permission and without sanction and thereby committed

misconduct. To substantiate charges levelled against the petitioner,

the enquiry was conducted. The petitioner denied charges i.e.

charge No.1 and 3. However, the petitioner admitted charge No.2.

It is recorded by the Enquiry Officer that evidence of all prosecution

witnesses mentioned in the memo were recorded in presence of

constable Sharad s/o Bhaskar Manekar i.e. the petitioner and was

given full opportunity of defence. The recording by the Enquiry

Officer further shows copy of deposition of each witness was given

to him and also time from 5.10.2007 to 19.10.2007 was also given

for presenting his written defence and list of witnesses.

.....17/-

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Accordingly, on 19.10.2007 he submitted his defence in writing and

also produced documents. He had produced on record prescription

regarding treatment of his wife in hospital at Nagpur dated

23.1.2006, intimation from Police Station dated 12.5.2007 and

13.5.2007, medical certificate issued on 29.4.2007 by the Primary

Health Centre at Buldhana and letter number P8-1/2007-EStt-2

dated 18.5.2007 issued by Additional Inspector General of Police,

Group Centre, Nagpur and request application filed by him for leave

of three days. It further reveals from the Enquiry Report that

despite grant of full opportunity the petitioner could not produce

any witness in his defence. During the course of preliminary

enquiry, as the petitioner had not admitted the guilt with regard to

charge Nos.1 and 3, evidence was adduced. Witness No.1

prosecutrix was examined and she narrated before the Enquiry

Officer that Constable Sharad s/o Bhaskar Manekar, i.e. the

petitioner used to meet her time and again and used to

communicate her in Assami language. The Constable was working

with the officer residing behind her quarter. The petitioner also

represented himself to her as "Raj" and to be resident of Assam. He

further represented that he is unmarried and wants to marry her.

She further disclosed that he subjected her sexual assault on the

promise of marriage. Though sufficient opportunity was granted to

the petitioner, neither he cross-examined the prosecutrix nor

.....18/-

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contradicted her deposition. It further revealed that after transfer,

the petitioner reported at Nagpur and was posted at headquarters.

He was posted as Assistant to Deputy Commandant Shri S.K.Yadav.

The Government residence of Shri Yadav was at a distance of about

15-20 yards from Type-IV, Quarter No.15 and residence of Shri

A.K.Nargeri, Second Class Officer, was situated at quarter No.7

(Type-IV) and the back portion of both the quarters were situated

opposite to each other. It further revealed that Shri A.K.Nargeri was

posted as Second Grade Officer at Group Centre at Silchar and at

his Government residence his wife was residing along with her son

and a maidservant i.e. the prosecutrix. Constable Sharad Bhaskar

Manekar was working as Security Assistant. It further revealed that

Mrs.Nargeri was working in LIC office and her duty hours were 9:30

am to 6:00 pm and her son was attending school from 7:00 am to

3:00 pm.. It further came on record during the enquiry that the

prosecutrix was working at the house of Mrs.Nargeri who is from

Assam. She is uneducated and only understands Assami and Bodo

languages. She had no knowledge of language Hindi or any other

language.

17. During the enquiry, it revealed that the petitioner used

to meet the prosecutrix talking to her in Assami language. The said

fact was supported by witnesses Shri A.K.Nargeri, Second Class

.....19/-

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Officer, Mrs.Nargeri and Constable Wasudeo Saha. The prosecution

witness Saha had narrated that he has seen the petitioner talking to

the prosecutrix. It further revealed from the evidence of

Mrs.Nargeri that the petitioner had gone to her house in March-

April 2006 for repairing cooler. He had communicated with

Mrs.Nargeri in Assami language. The petitioner had also obtained

cassettes from Mrs.Nargeri. The fact is supported by Mrs.Nargeri

and the prosecutrix in their depositions. The petitioner had also

admitted the fact of obtaining cassettes of Assami language from

Mrs.Nargeri and returning of the same to said Saha who was

working at the house of Mrs.Nargeri. Though the petitioner had

denied his communication with Mrs.Nargeri in Assami language, he

admitted that he obtained the cassettes which were in Assami

language. It is observed by the Enquiry Officer that obtaining

cassettes from Mrs.Nargeri establishes that he has knowledge of

Assami language. From the evidence of the prosecutrix it revealed

to the Enquiry Officer that the petitioner represented her that his

mother is not alive and he is the only earning member in his family.

His father, brother and sister-in-law reside in his house. Similar

statement is given by him to the Enquiry Officer regarding his

family particulars. It further revealed from the evidence recorded

before the Enquiry Officer that the alleged incident of sexual assault

was taken place when Mrs.Nargeri was out of station. After return

.....20/-

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of Mrs.Nargeri, the prosecutrix disclosed the said incident to her.

Subsequently, it further revealed that the petitioner is married and

from Maharashtra and is residing along with his family. Shri

A.K.Nargeri called the petitioner and made enquiry with him and

also scolded him for developing contacts with his maidservant being

married person and making a false promise to marry her and Shri

A.K.Nargeri warned him not to repeat such acts in future. The said

entire evidence remained unchallenged during the enquiry as the

petitioner had not cross-examined witnesses or contradicted them.

From statements of the prosecutrix, Shri A.K.Nargeri, Mrs.Nargeri

and Constable Saha, it revealed that the petitioner by representing

himself as Assamese proposed the prosecutrix and established

physical relation with her and sexually assaulted her. Having close

scrutiny of documents on record, the Enquiry Officer was satisfied

that the petitioner had knowledge of language Assami, contacted

the prosecutrix, representing himself to her to be Assami developed

relation with her and promising to marry her subjected her sexual

assault. Therefore, the First Information Report was lodged by the

prosecutrix on 9.4.2007 with the help of Mrs.Nargeri. A copy of the

First Information Report was also sent to the Additional Deputy

Inspector General Of Police, Group Centre, Nagpur. The Prosecutrix

was also referred for medical examination. The evidence of Nurse

Asha Wankhede was also recorded to show that the prosecutix was

.....21/-

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medically examined. Thus, the prosecutrix was subjected to sexual

assault on 15.2.2007 and the same was proved before the Enquiry

Officer and, therefore, it was held by the Enquiry Officer that charge

No.1 is proved. Charge No.2 is admitted by the petitioner. With

regard to charge No.3, the evidence shows that the petitioner was

absconding from the camp from 11.4.2007 to 11.5.2007 and on

12.5.2007 he was reported on duty at about 13.45 hours. The

communication from the Additional Deputy Inspector General of

Police to Sonegaon Police Station for seeking information about the

petitioner, as he was absent from duties, is revealed. As the

petitioner failed to resume duties, he was ordered to report duty by

issuing communication dated 18.5.2007. Thereafter, he reported on

duty on 18.5.2007. The petitioner in his letter in writing stated that

he was released on bail on 12.5.2007 and he was required to attend

the Sonegaon Police Station and, therefore, he could not resume

duty. Thus, upon scrutiny of the statements of witnesses,

documents and various circumstances on record, the Enquiry Officer

has come to conclusion that charges levelled against the petitioner

are proved. The Competent Authority had considered the evidence

in the enquiry and accordingly imposed the punishment. As the

offence committed by the petitioner was of moral turpitude,

punishment of dismissal was imposed on him. Against the said

order, the petitioner preferred the appeal. The Appellate Authority

.....22/-

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had considered the Enquiry Report and refused to interfere by

observing that charges levelled against the petitioner are proved.

The Disciplinary Authority as well as the Appellate Authority had

considered the nature of the offence and indisciplined attitude of the

petitioner and impose the punishment accordingly.

18. The other ground raised by the petitioner is that he was

acquitted from the charges. Learned Advocate Ms Neerja

G.Chaubey for respondents rightly relied upon the decision in Writ

Petition No.1917 of 2021 (Ravindra Prasad Munneshwar Prasad vs.

Union of India, thr.Secretary, Ministry of Defence, New Delhi and

ors) cited supra wherein the Division Bench of this Court had

considered the aspect of "honourable acquittal" and held that the

expressions "honourable acquittal", "acquitted of blame", "fully

exonerated" are unknown to the Code of Criminal Procedure or the

Penal Code and said expressions are coined by judicial

pronouncements. It is held by the Division Bench of this Court that

after giving benefit of doubt, acquittal could not be treated as to be

a honourable acquittal. The Honourable Apex Court in the case of

Deputy Inspector General of Police and another vs. S.Samuthiram

cited supra also held that held that if any of acquittal in criminal

proceedings, there is no impact if acquittal is on account of flawed

prosecution, but departmental enquiry is based on adequate

.....23/-

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evidence. The Honourable Apex Court in the case of Maharashtra

State Road Transport Corporation (S) vs. Dilip Uttam jayabhay (S)

reported at 2022 SCC OnLine SC 1 has also held that as per 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. The Honourable Apex Court in

the case of Indian Overseas Bank and ors vs. Om Prakash Lal

Srivastava reported at 2002 LiveLaw (SC) 66 also by referring the

decision in the case of Ashoo Surendranath Tewari vs. Deputy

Superintendent of Police, EOW, CBI, cited supra held that the

standard of proof in departmental proceedings, being based on

preponderance of probability, is somewhat lower than the standard

of proof in criminal proceedings where the case has to be proved

beyond reasonable doubt. Thus, contention of the petitioner that he

was acquitted in the crime trial has no basis for his dismissal. As

observed by the Division Bench of this Court as well as by the

Honourable Apex Court, the acquittal could not be treated as to be a

"honourable acquittal". As observed by the Honourable Apex in the

case of Maharashtra State Road Transport Corporation (S) vs. Dilip

Uttam jayabhay (S) cited supra that 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

.....24/-

Judgment

wp5030.11 1

proceedings operate in different fields and with different objectives,

the submission of learned Advocate for the petitioner is not

sustainable. Learned Advocate for the petitioner relied upon the

decision in the case of Ashoo Surendranath Tewari vs. Deputy

Superintendent of Police, EOW, CBI, cited supra wherein also the

same principle is reiterated standard of proof in departmental

proceeding, being based on preponderance of probability, is

somewhat lower than standard of proof in criminal proceeding,

where case has to be proved beyond reasonable doubt. It is further

held by the Honourable Apex Court that it is trite that the standard

of proof required in criminal proceedings is higher than that

required before the adjudicating authority and in case the accused

is exonerated before the adjudicating authority whether his

prosecution on the same set of facts can be allowed or not is the

precise question which falls for determination in this case. Learned

Advocate for the petitioner also relied upon the decision of the

Honourable Apex Court in the case of B.C.Chaturvedi vs. Union of

India and ors., cited supra wherein the Honourable Apex Court lays

down the ratio regarding scope of judicial review and held that the

Court/Tribunal cannot interfere with findings of fact based on

evidence and substitute its own independent findings. We are in

respectful agreement with the same.

.....25/-

Judgment

wp5030.11 1

19. Admittedly, this Court cannot re-appreciate and re-

analyze the evidence unless it shows findings are perverse. It is

recently observed by this Court in Laxman B.Panmant vs. Nuclear

Power Corporation of India, reported at 2022(4) Mh.L.J. 603 that

the writ Court does not re-appreciate evidence unless it can be

shown that findings are perverse. The evaluation of evidence is to

be left to the fact finding committee.

20. Though in the present the case the petitioner had

claimed that opportunity to engage a "next friend" and to examine

and to cross-examine the witnesses were not given to him, it

appears that for first time he raised the issue that his request for

engaging a "next friend" was not considered. The said submission

is not substantiated by any material. On the contrary, the Enquiry

Report shows that the petitioner was supplied with all copies of

statements of the witnesses. The Enquiry Officer further noted that

the opportunity of cross-examination was also given to him.

However, the petitioner had not availed the same. Thus, the

contention of the petitioner that the enquiry was conducted in a

hasty manner without giving him a proper opportunity is without

substance. The record shows that time to time the opportunity was

granted to the petitioner. The copy of the Enquiry Report was also

supplied to the petitioner and opportunity before imposing the

.....26/-

Judgment

wp5030.11 1

punishment was also granted to him to make his submission on the

point of punishment.

21. The petitioner was working with the Central Reserve

Police Force. The integrity and honesty are essence of the

organization. The discipline in the armed forces is absolutely

imperative and no compromise can be made as far as the discipline

in the armed forces is concerned. In the instant case, the petitioner

was working as Constable in the Central Reserve Police Force which

is a responsible force for providing security. In the nature of the

force, wherein the petitioner was serving, sense of integrity,

commitment and discipline are paramount. No indulgence or

latitude can be granted when the case of sexual assault is

considered on the touchstone of preponderance of probabilities. To

condone such type of misconduct would result in ramifications. The

indiscipline in the force cannot be compromised. On the contrary, it

was duty of the petitioner to safeguard the interests of the

prosecutrix. However, the petitioner had given false promise of

marriage when he was already married and subjected her to sexual

assault and betrayed her trust. In the background of facts and

considering the indiscipline in the force by the petitioner which

cannot be compromised, we are not inclined to accept that the

punishment of dismissal imposed by the Appellate Authority by

.....27/-

Judgment

wp5030.11 1

order dated 31.12.2007 was grossly disproportionate to the

quantum of offence.

22. As observed that in exercise of judicial review this

Court does not act as an Appellate Forum over findings of

disciplinary which the finding of misconduct has been arrived at in

the course while exercising writ jurisdiction, the exercise of judicial

review is restricted to determine whether the rules of natural justice

have been complied with. The noting of the Enquiry Officer that

every opportunity was given to the petitioner to examine the

witnesses as well as to lead the evidence shows that there is no

violation of natural justice. This fact itself is sufficient to show that

the rules of natural justice have been complied with. The statute

rules governing the conduct appears to be observed by giving

proper opportunity to the petitioner. The petitioner had not made

out the case that the findings of the misconduct is based on no

evidence. In fact, the findings of misconduct is based on the oral

evidence of several witnesses. The petitioner also failed to show

that the findings of the Disciplinary Authority suffer from perversity.

The enquiry was conducted in accordance with the principles of

natural justice. The findings of the Enquiry Officer and the

Disciplinary Authority are sustainable with reference to the evidence

which was adduced during the enquiry.

.....28/-

Judgment

wp5030.11 1

23. In this view of the matter, as the writ petition is devoid

of merits, the same deserves to be dismissed and the writ petition

is dismissed.

       (URMILA JOSHI-PHALKE, J.)              (A.S.CHANDURKAR, J.)


!! BrWankhede !!


                           Digitally signed
                           by BHUSHAN
   BHUSHAN                 RANA
   RANA                    WANKHEDE
   WANKHEDE                Date:
                           2022.10.21
                           19:07:39 +0530




                                                                        ...../-