Jharkhand High Court

(An Application Under Section 226 ... vs Union Of India Through The D.G. on 17 March, 2021

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IN THE HIGH COURT OF JHARKHAND AT RANCHI
                  W.P.(S) No. 5940 of 2009
      (An application under Section 226 of Constitution of India)
Surajpat Paswan                                   ..... Petitioner
                               Versus
1. Union of India through the D.G., C.I.S.F, New Delhi
2. Director General of Police, Central Industrial Security
   Force (CISF), New Delhi
3. The Inspector General, East Zone, Central Industrial
   Security Force, office of the Deputy Inspector General,
   CISF, Eastern Zone, Headquarter, Patna, Bihar
4. The Deputy Inspector General, Central Industrial
   Security Forces Unit, BCCL, Dhanbad.
5. The Senior Commandant, Central Industrial Security
   Forces Unit, BCCL, Dhanbad                      ..... Respondents
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For the Petitioner : Mr. Manoj Tandon, Advocate For the Respondents-UOI : Mr. Binod Singh, Advocate

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PRESENT HON'BLE MR. JUSTICEDEEPAK ROSHAN

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By Court: Heard learned counsel for the parties through V.C.

2. The instant writ application has been preferred by the

petitioner praying therein for quashing the order dated 27.03.2007,

passed by respondent No.5, whereby the petitioner has been

imposed penalty of compulsory retirement. The petitioner has

further assailed theappellate order dated 10.02.2009, passed by the

respondent No.4 and also the order in revision dated 19.05.2009,

passed by respondent No.3, whereby the appeal as well as revision

preferred by the petitioner has been rejected and the order of

punishment has been sustained.

3. The brief fact relevant to decide the issue involved in this

case is that on 19.09.2006, the petitioner was taken into judicial

custody in connection with Katras P.S. Case No. 228 of 2006,

corresponding to G.R. No.2957 of 2006 (S.T. No.588 of 2006).

Subsequently, on 26.09.2006 memo of charge was framed against this

petitioner and the Inquiry Officer was appointed to conduct the

departmental proceeding who submitted its report on 20.01.2007 and

on 27.03.2007, the petitioner was imposed punishment of compulsory

retirement.

4. Mr. Manoj Tandon, learned counsel for the petitioner

assailed the order impugned by referring to the order which has been

passed in the criminal case (Annexure-7). He further submits that the

charge in the departmental proceeding and the charge in the criminal

case are almost same and similar and in the criminal case the

petitioner has been honourably acquitted.

He further submits that after the judgment of acquittal;

petitioner made an application before the respondent No.4 for

reinstatement. However, he has rejected the claim of the petitioner.

He further referred to the judgment of acquittal and submits that P.W

-1 was the victim complainant and on the basis of her statement,the

learned trial court has acquitted this petitioner.

5. Learned counselfurther argued that now it is well settled

proposition of law that when the charge in the departmental

proceeding and criminal case are same and similar and if the person

is honourably acquitted in the criminal case; the department should

reconsider their order especially whenthe basis of departmental

proceeding was the information of the victim-informant. In support

of his argument he relied uponthe judgment passed in the case of

G.M. Tank vs. State of Gujarat & Ors. reported in (2006) 5 SSC 446.

6. The next limb ofargument of learned counsel for the

petitioner is that principle of natural justice was not followed,

inasmuch as, when the departmental proceeding was going on, he

was in judicial custody and the respondent authority conducted the

proceeding inside the jail when the petitioner was under so much

pressure so he was unable to give proper reply.

7. The last limb of argument of learned counsel is that there

were two charges framed against him in which the first charge was

same and similar to that of criminal case in which he has been

acquitted and the second charge was not that serious; rather for that

charge he has already been punished by the Department previously;

as such, so far as the second charge is concerned; nature of

punishment is highly disproportionate.

8. Relying upon the aforesaid contention and the judgment

referred to hereinabove, Mr. Tandon submits that the impugned

order deserves to be quashed and set aside and the petitioner should

be entitled for all consequential benefits.

9. Mr. Binod Singh, learned CGC appearing for the

respondent-CISF submits that acquittal in criminal case shall not be

relevant due the settled law that in departmental proceeding and

criminal case; standard of proof is totally different. In the criminal

case the prosecution has to prove the case beyond all reasonable

doubt; whereas in the departmental proceeding, the department has

to prove only on preponderance of probabilities. Learned counsel

further referred to the enquiry report and submits that in the instant

case, the department has been able to prove the case on the standard

of preponderance of probabilities; therefore, the submission of the

learned counsel for the petitioner does not have any merit and fit to

be rejected.

10. Learned counsel further referred to a judgment delivered

in the case of State of Rajasthan & Ors. Vs. Heem Singh reported in

2020 SCC online SC 886 wherein at para 15 and 16 the Hon'ble Apex

Court has held as under:

"15. The standard of proof in disciplinary proceedings is different from that in a criminal trial. In Suresh Pathrella v. Oriental Bank of Commerce, a two judge Bench of this Court differentiated between the standard of proof in disciplinary proceedings and criminal trials in the following terms:

"...the yardstick and standard of proof in a criminal case is different from the disciplinary proceeding. While the standard of proof in a criminal case is a proof beyond all reasonable doubt, the proof in a departmental proceeding is preponderance of probabilities."

16. This standard is reiterated by another two-Judge Bench of this Court in Samar Bahadur Singh v. State of U.P.:

"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."

11. Learned counsel lastly submits that even the victim girl

was examined in the departmental proceedingand the departmental

authorities has rightly on the basis of her statement has punished the

petitioner.

12. Having heard learned counsel for the parties and after

going through the document available on record and the averments

made in the respective affidavits it appears that the petitioner was

taken under judicial custody in connection with one criminal case

andpursuant to that on 26.09.2006, memo of charge was framed

against the petitioner. The charge framed against this petitioner is

quoted hereinbelow:

Article -I-

That, No.823240162 HC/GD S P Paswan of CISF Unit BCCL Dhanbad Area No.4 while residing in Govt. family accommodation Qtr. No.7 at Salanpur with family members has destroyed the sacred relationship between a father and daughter in theintervening night of 17/18.09.06, which is very very heinous in the eye of society. The above act on the part of No.823240162 HC/GD S P Paswan tarnished the image of the Force in the eye of public as well as society.

Article-II -

That, as per service records of No.823240162 HC/GD S P Paswan of CISF Unit BCCL Dhanbad Area No.4, he has been awarded 03 punishments for various indiscipline activities during his service career.

13. It also appears from record that in the criminal case the

petitioner has been honourably acquitted; even the victim girl who is

P.W 1 in the criminal case did not supported the version ofthe

prosecution. Para 6 of the judgment passed in the Sessions Trial No.

588 of 2006 is quoted herein below:

"6. P.W. 1 Awarti Kumari is victim girl and she is informant also. She formally proves her signature (Exhibit 1) on the written statement. She also says that about 8 to 9 months ago there was a quarrel between her father and Ganesh Rajak then Ganesh Rajak had taken her to the P.S. where he gave written paper to her for putting her signature on the written paper. In para 2 she denies the allegation of rape with her by her father. She also denies the statement mentioned in the written report and in para 4 she admits that she had given statement before a Magistrate and she was also examined by a doctor. In course of examination she says that she does not know contents of the written report and she also denies story of rape on her by her father. In para 6 she says that on instruction of the police she had given statement before the Magistrate. Thus, P.W.1 does not support the prosecution case."

14. After going through the charge framed againstthis

petitioner and the relevant portion of the judgment quoted herein

above delivered in the criminal case; it appears that the charge in the

criminal case; so far as charge no.1 is concerned, as well as in the

departmental proceeding is the same and similar. There is no iota of

difference with regard to charge no.1 and the charge in the criminal

case.

15. Thus, the issue involved in this case is "whether the order of

punishment is liable to be set aside in view of the judgment and order passed

by the criminal court?" The Hon'ble Apex Court has held in similar

cases that in such circumstances the punishment imposed on the

delinquent is liable to be set aside.

16. In the case of G.M. Tank v. State of Gujarat & Ors.

reported in 2006 (5) SCC 446 the Hon'ble Apex Court has dealt with

this issue at para 29, 30 and 31 as under:

"29. The judgment in State of A.P. v. S. Sree Rama Rao was cited for the purpose that the High Court is not constituted in a proceeding under Article 226 of the Constitution as a court of appeal over the decision of the authorities holding a departmental enquiry against a public servant, it is concerned to determine whether the enquiry is held by an authority competent in that behalf and according to the procedure prescribed in that behalf and whether the rules of natural justice are not violated.

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

that 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.

31. In our opinion, such facts and evidence in the departmental as well as criminal proceedings were the same without there being any iota of difference, the appellant should succeed. The distinction which is usually proved between the departmental and criminal proceedings on the basis of the approach and burden of proof would not be applicable in the instant case. Though the finding recorded in the domestic enquiry was found to be valid by the courts below, when there was an honourable acquittal of the employee during the pendency of the proceedings challenging the dismissal, the same requires to be taken note of and the decision in Paul Anthony case will apply. We, therefore, hold that the appeal filed by the appellant deserves to be allowed."

In this regard, reference may also be made to the

Judgment rendered by the Hon'ble Apex Court in the case of S.

Bhaskar Reddy &Anr. v. Superintendent of Police &Anr. reported in

(2015) 2 SCC 365 wherein it has been held in para 25 and 26 as under:

"25. The High Court has not considered and examined this legal aspect of the matter while setting aside the impugned judgment and order of the Tribunal. The Tribunal has also not considered the same. We have examined this important factual and legal aspect of the case which was brought to our notice in these proceedings and we hold that both the High Court and Tribunal have erred in not considering this important undisputed fact regarding honourable acquittal of the appellants on the charges in the criminal case which are similar in the disciplinary proceedings.

26. We have answered the alternative legal contention urged on behalf of the appellants by accepting the judgment and order of the Sessions Judge, in which case they have been acquitted honourably from the charges which are more or less similar to the charges levelled against the appellants in the disciplinary proceedings by applying the

decisions of this Court referred to supra. Therefore, we have to set aside the orders of dismissal passed against the appellants by accepting the alternative legal plea as urged above having regard to the facts and circumstances of the case."

17. After going through the judgments referred to herein

above it clearly transpires that so far as charge No.1 in the

departmental proceeding is concerned; that is same and similar to

that of criminal case and the victim girl had categorically denied the

allegation raised by her on her father. In her deposition she has

admitted that she had given statement before the Magistrate. She had

also stated that she has given statement before the Magistrate on

instruction of police. In nut-shell, the petitioner was honourably

acquitted by learned trial court as such; so far charge No.1 is

concerned, same has no legs to stand in the eye of law in view of the

judicial pronouncement referred to herein above.

18. So far as charge No.2 is concerned, the same is vague in