Latifkhan Nizamkhan Pathan vs State Of Gujarat
2023 Latest Caselaw 5486 Guj

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    C/SCA/9015/2021                                  CAV JUDGMENT DATED: 01/08/2023

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              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                R/SPECIAL CIVIL APPLICATION NO. 9015 of 2021


FOR APPROVAL AND SIGNATURE:

HONOURABLE MRS. JUSTICE MAUNA M. BHATT

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1 Whether Reporters of Local Papers may be allowed to see the judgment ?

2 To be referred to the Reporter or not ?

3 Whether their Lordships wish to see the fair copy of the judgment ?

4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India or any order made thereunder ?

========================================================== LATIFKHAN NIZAMKHAN PATHAN Versus STATE OF GUJARAT ========================================================== Appearance:

MR UTKARSH J DAVE(10620) for the Petitioner(s) No. 1 RAHUL SHARMA(8276) for the Petitioner(s) No. 1 MR SAHIL TRIVEDI, LD.ASSTT. GOVERNMENT PLEADER for the

NOTICE SERVED for the Respondent(s) No. 2,3,4,5 ==========================================================

CORAM:HONOURABLE MRS. JUSTICE MAUNA M. BHATT

Date : 01/08/2023

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1. Rule returnable forthwith. Mr. Sahil Trivedi, learned Asst. Government Pleader waives service of rule on behalf of respondent No.1 - State.

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2. This petition under Article 226 of the Constitution of India is filed seeking following reliefs;

"8. (A) Issue a writ of mandamus or any other writ, order or direction to quash and set aside the impugned penalty order dated 25.4.2012 of Respondent No.5, the impugned order-in-appeal dated 24.12.2013 of the Inspector General of police, Junagadh Range, Junagadh, and the impugned order-in-revision dated 2.9.2015 of Respondent No.2 (annexed to this petition at Annexure 'A' colly and the impugned order dated 20.8.2018 of respondent No.5, the impugned order dated 9.1.2020 of respondent No.4, the impugned order dated 27.5.2020 of respondent No.3 and the impugned order dated 30.3.2021 of respondent No.2 (annexed to this petition at Annexure B colly) and further direct the respondents to pass necessary orders exonerating the petitioner from all charges raised against him vide charge-sheet dated 3.4.2010 (at Annexure 'C').

(B) Direct the respondents to treat the period of suspension of the petitioner from

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11.10.2008 to 24.9.2009 as period spent on duty;

(C) Direct the respondents to restore all service benefits, including financial benefits, to the petitioner from the date that they would have been due to him had he been exonerated following the disciplinary proceedings initiated against him in pursuant to the charge-sheet dated 3.4.2010 (at Annexure 'C');

(D) Pass any such other orders as may be deemed fit, proper and just in the interest of justice pending admission, hearing and final disposal of the present petition."

3. The facts in brief as averred in the Petition are as under:

(i) On 17.8.1994, Petitioner joined the police force of District Amreli as an Unarmed Police Constable. The offences vide C.R. No. I-65/2008 under Sections 143, 342, 353 and 186 of Indian Penal Code were registered on 19.8.2008, against the Petitioner along with other accused persons. It was alleged that the Petitioner along with other accused persons had obstructed the police in effecting arrest of the accused in C.R. No. II-58 of 2008 of Khaambha Police Station.

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(ii) The petitioner was arrested on 19.8.2008 vide C.R. No. I- 65/2008 and was transferred to Porbandar by an order of the Dy. Inspector General of Police, Junagadh Range, Junagadh.

(iii) The Petitioner was placed under suspension on 11.10.2008 by Respondent No.5 but on 24.9.2009 was reinstated in service.

(iv) Simultaneous departmental proceedings were initiated wherein Petitioner was served with departmental charge-sheet by Respondent No.4 on 3.4.2010 for the alleged misconduct that the Petitioner along with other accused persons, had obstructed the police in effecting arrest of the accused in C.R. No. II-58 of 2008 of Khaambha Police Station.

(v) Thereafter, Respondent No.5 served a show cause notice dated 14.3.2012, asking the Petitioner to explain why a penalty of stoppage of one increment for four years with cumulative effect should not be imposed on him and to treat the period from 11.10.2008 to 24.9.2009 as suspension period.

(vi) The Petitioner responded to the show cause notice, by his reply, dated 19.04.2012.

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(vii) By an order dated 25.04.2009, the Respondent No.5, imposed the penalty of stoppage of one increment for four years with cumulative effect and treated the period of suspension from 11.01.2008 to 24.9.2009 as not on duty.

(viii) The Petitioner preferred appeal before the Inspector General of Police, Junagadh Range, on 22.10.2013 against the penalty imposed on him by Respondent No.5. The appeal of the Petitioner was rejected vide order dated 24.12.2013.

(ix) Thereafter on 9.3.2014, the Petitioner preferred revision application against the rejection of his appeal before Respondent No.2. Respondent No.2 rejected the revision application on 2.9.2015 and confirmed the penalty imposed by Respondent No.5.

(x) On 22.11.2017, the learned JMFC, Khaambha, on merits, acquitted all the accused persons including the Petitioner of all the charges in Criminal Case No.399 of 2011 arising out of FIR No.I-65 of 2008.

(xi) In view of acquittal by the competent court of law, the Petitioner made representation on 20.4.2018, to the Superintendent of Police, Gir Somnath to review his penalty order. Representation of the Petitioner was rejected on

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20.8.2018 on the ground that though he had been acquitted in the criminal proceedings, he was found guilty during disciplinary proceedings.

(xii) Thereafter, Petitioner preferred an appeal dated 19.2.2019, before Respondent No.3 who forwarded the same to Respondent No.4 and Respondent No.4 vide order dated 9.1.2020 rejected the appeal against representation.

(xiii) Again, one more appeal dated 24.2.2020 was preferred by Petitioner to Respondent No.3 (DIG-Bhavnagar) who is appellate authority and the appellate authority upon consideration of representation by an order dated 27.05.2020, reduced the period of punishment from four years to two years.

(xiv) One more representation was preferred to Respondent No.2 to review the order of penalty, which was rejected and the penalty order dated 27.5.2020 of reduced penalty was confirmed.

Aggrieved by which the present Petition is filed.

4. Heard Mr. Rahul Sharma, learned Advocate for the Petitioner. He submitted that chronology shows that

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Petitioner was charge-sheeted on the same grounds, for which, he has been subjected to criminal prosecution. Since the charges levelled against the Petitioner in disciplinary proceeding are akin to the charges levelled in the criminal prosecution in which the Petitioner has been given honorary acquittal, the penalty order dated 25.4.2012 and the appeal order dated 27.05.2020 need revision. He submitted that both the proceedings are based on the same charges. The evidence relied upon in both the proceedings are similar and, therefore, honorary acquittal by the competent court of law, may have to be considered and the order of penalty and the rejection of appeal requires re-consideration. Both, the order of penalty and the appellate authority are required to be quashed and set aside. Therefore, the Petitioner filed representations dated 20.4.2018 which were rejected by Respondent No.5 under order dated 20.8.2018. The appeal filed by Petitioner dated 18.2.2019 to Respondent No.3 seeking revision of penalty which has been rejected by order dated 27.5.2020 is erroneous. Even the representation of the Petitioner rejected by Respondent No.2 by order dated 30.3.2021 is also erroneous, more so, the rejection order dated 30.03.2021, is without reasons. He submitted that in view of honorary acquittal by the competent court of law, the penalty order deserves to be quashed and set aside. In support of his submissions, he relied upon decision of Hon'ble Supreme Court in the case of

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State of Rajasthan & Ors. vs. Heem Singh reported in 2020 SCC Online SC 886. As held by the Hon'ble Supreme Court,when the accused is acquitted after full consideration by prosecution evidence and when the prosecution had miserably failed to prove the charges levelled against the accused, it can possibly be said that the accused was honorarily acquitted. In the present case, the Petitioner has been acquitted as the prosecution failed in proving the charges levelled against the accused and this being honorary acquittal, the Petitioner's penalty order is required to be revoked.

4.1. Mr. Sharma, learned advocate also relied on Government resolution dated 19.4.2004 to support his case that in view of acquittal, the penalty order deserves to be quashed and set aside.

5. On the other hand, Mr. Sahil Trivedi, learned Asst. Government Pleader submitted that criminal prosecution and departmental proceedings are two separate proceedings. Inquiry in this case has been concluded after following due procedure under the extant rules and thereafter the inquiry officer has made a report holding the charges as proved. Merely the Petitioner has been acquitted in the criminal proceedings may not be the ground for interfering with the penalty which has been passed pursuant to the disciplinary

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proceedings. In the present case, the order of penalty has been passed prior to passing of order of acquittal by the competent court of law. In both the proceedings, the standard of proof is different and therefore, no interference is required. Learned AGP relied upon the decision of Hon'ble Supreme Court in the case of Maharashtra State Road Transport Corporation vs. Dilip Uttam Jayabhay in Civil Appeal No.7403 of 2021 dated 3.1.2022.

6. Considered the submissions and decisions relied upon by respective Advocates for the parties. Upon reconsideration of facts, it is noticed that pursuant to the involvement of Petitioner in offences under Indian Penal Code, he was subjected to departmental proceedings by issuance of charge- sheet dated 3.3.2010. The said departmental proceedings were proceeded and the inquiry officer after following due process under the extant rules held in its report that the charges levelled against the Petitioner are proved. Petitioner was thereafter served with the show cause notice calling for his explanation that why the penalty as proposed in the show cause notice dated 14.3.2012 should not be imposed upon him. Petitioner responded to the said show cause notice and thereafter the order of penalty dated 25.4.2012 was passed. The order dated 25.4.2012 passed by the disciplinary authority was challenged by filing an appeal wherein the appellate

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authority confirmed the order of penalty dated 25.4.2012. The revision application filed after the appeal order dated 22.10.2013 was also rejected confirming the penalty dated 25.4.2012. Thus, the departmental proceedings initiated pursuant to the charge-sheet dated 3.3.2010 had attained finality by imposition of penalty as per order passed by the disciplinary authority dated 25.12.2012.

6.1. Petitioner thereafter has been acquitted by the competent court of law by an order dated 22.1.2017. Therefore, since the acquittal was an honorary acquittal, the Petitioner made representations as also preferred an appeal with a request to reconsider the penalty order dated 25.4.2012. The sole reliance placed by the Petitioner seeking quashment of penalty order dated 25.4.2012 is the acquittal by the competent court of law by order dated 22.11.2017. It is true that the Petitioner was acquitted in the criminal prosecution. The order passed by JMFC, Khaambha dated 22.11.2010 refers to the acquittal of the Petitioner on the ground that the prosecution failed in proving the charges levelled against the Petitioner beyond reasonable doubt. Reliance placed by the Petitioner on the decision of the Hon'ble Supreme Court in the case of State of Rajasthan and Ors. vs. Heem Singh (supra) refers to the effect of acquittal which reads as under:

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"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 vs. Union of India, 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.""

6.2. However, in the very same decision, the Court has

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observed that "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."

6.3 Moreover, in para 42 it has been observed as under:

"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 rial.

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

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credibility of and public confidence in the image of the police force."

6.4 It is also not in dispute that in the present case, the disciplinary proceedings were initiated basis the charges levelled against the criminal proceedings. However, as per the settled legal position both the proceedings are separate and distinct proceedings. Further, the standard of proof required in the disciplinary proceedings is preponderance of probabilities, whereas the criminal prosecution requires strict proof of evidence beyond reasonable doubt. Both the proceedings are different and distinct proceedings and both the forums run at different level. Further, it cannot be ignored that in this case the Petitioner was acquitted since the prosecution failed to prove charges by leading necessary evidence. It is not even the case of the Petitioner that the disciplinary proceedings have been completed without following the due procedure contemplated under the extant rules.

6.5 It would be apt to refer to the following decisions:

(I) State of Rajasthan and others Vs. Phool Singh reported in 2022 SCC Online SC 1140, the Hon'ble Court has held as under:

"10. There should be no ambiguity in law on

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this subject. A departmental proceeding is different from a criminal proceeding. The fundamental difference between the two is that whereas in a departmental proceeding a delinquent employee can be held guilty on the basis of "preponderance of probabilities", in a criminal court the prosecution has to prove its case "beyond reasonable doubt". In short, the difference between the two proceedings would lie in the nature of evidence and the degree of its scrutiny. The two forums therefore run at different levels. For this reason, this Court has consistently held that merely because a person has been acquitted in a criminal trial, he cannot be ipso facto reinstated in service. "

(II) In case of State of Karnataka and Anr. vs. Umesh reported in (2022) 6 SCC 563, the Hon'ble Court has held as under:

"16. The principles which govern a disciplinary enquiry are distinct from those which apply to a criminal trial. In a prosecution for an offence punishable under the criminal law, the burden lies on the

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prosecution to establish the ingredients of the offence beyond reasonable doubt. The accused is entitled to a presumption of innocence. The purpose of a disciplinary proceeding by an employer is to enquire into an allegation of misconduct by an employee which results in a violation of the service rules governing the relationship of employment. Unlike a criminal prosecution where the charge has to be established beyond reasonable doubt, in a disciplinary proceeding, a charge of misconduct has to be established on a preponderance of probabilities. The rules of evidence which apply to a criminal trial are distinct from those which govern a disciplinary enquiry. The acquittal of the accused in a criminal case does not debar the employer from proceeding in the exercise of disciplinary jurisdiction. xxx xxx xxx

22. In the exercise of judicial review, the Court does not act as an appellate forum over the findings of the disciplinary authority. The court does not reappreciate the evidence on the basis of which the finding of misconduct has been

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arrived at in the course of a disciplinary enquiry. The Court in the exercise of judicial review must restrict its review to determine whether: (i) the rules of natural justice have been complied with; (ii) the finding of misconduct is based on some evidence; (iii) the statutory rules governing the conduct of the disciplinary enquiry have been observed; and

(iv) whether the findings of the disciplinary authority suffer from perversity; and (vi) the penalty is disproportionate to the proven misconduct."

7. In view of the above, as per settled legal position, both the proceedings are distinct and separate proceedings and since acquittal in criminal trial has no barring 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 have different objectives no fault or infirmity could be found in the orders of penalty in departmental proceedings. Further, after acquittal by the Criminal Court the appellate authority by order dated 27.05.2020, reconsidered the penalty imposed by an order dated 25.05.2009 and reduced the same. The order dated 27.05.2020 was passed after due application of mind. Most importantly the scope of judicial review in the

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disciplinary proceedings is minimal. Therefore, this Court does not find any illegality or infirmity in any of the orders under challenge and deems it appropriate not to entertain the Petition particularly there is no violation of principles on natural justice or breach of extant rules on conduct of departmental proceedings.

8. The Petition is therefore dismissed with no order as to costs. Rule discharged.

(MAUNA M. BHATT,J) NAIR SMITA V.