Pahalwan Singh vs State Of M.P.
2021 Latest Caselaw 1076 MP

                               1                  WA.456.2011

        THE HIGH COURT OF MADHYA PRADESH
                   Writ Appeal 456.2011
       [Pahalwan Singh Vs. Vs. State of M.P. & others]
Gwalior Dt. 25/3/2021

      Shri Prashant Sharma, learned counsel for appellant.

      Shri M.P.S.Raghuvanshi, learned Additional Advocate

General for the respondents-State.

1. The instant Intra Court Appeals filed u/S. 2 (1) of Madhya

Pradesh Uchcha Nyayalaya (Khandpeeth Ko Appeal) Adhiniyam,

2005 assails the final order dated 23/9/2010 in W.P. 2905/2004

passed by learned single judge while exercising writ jurisdiction

u/Art. 226 of the Constitution whereby the petition in question

primarily assailing removal of petitioner from service after

holding disciplinary proceeding has though been allowed by

quashing appellate and as well as revisional orders but arrears of

salary are denied.

2. The denial of arrears of salary claimed by appellant from

the date of removal i.e. 31/8/2003 till his reinstatement, is the

subject matter in the present writ appeal.

3. On a query made by this court, learned Additional

Advocate General for State categorically informed after seeking

instructions that the impugned order of learned single judge has 2 WA.456.2011

not been challenged by the State,

4. Learned counsel for rival parties are heard.

5. Learned counsel for appellant primarily submits that once

the learned single judge holds that petitioner had been acquitted

of the charge of gambling (which was one of the charges in

disciplinary proceedings) and the order of removal having been

found by learned single judge to be perverse, the denial of arrears

of salary after quashment of the order of removal is

unsustainable.

6. It is not disputed at the bar that petitioner for the same set

of charge i.e. gambling was proceeded against on the criminal

side and as well as on the disciplinary side.

6.1 On the criminal side petitioner was one of the 5 accused in

Criminal Case No. 374/2002 which ended in acquittal on

29/4/2004 vide P/15 in the court of CJM Datia (M.P.) Bare

reading of the judgment of acquittal (P/15) reveals that though

there was evidence of petitioner indulging in gambling but the

fact of gambling being done in a public place as required by Sec.

13 of the Gambling Act could not be established by prosecution

beyond reasonable doubt. Thus, the petitioner was acquitted of

the charge of gambling.

3 WA.456.2011

6.2 On the disciplinary side, the petitioner was issued charge-

sheet on 11/12/2002 primarily alleging unauthorized absence

from duty on 5/11/2002 and indulging in gambling in the night

intervening 8th & 9th November, 2002. The Enquiry Officer found

both the charges to be proved. The disciplinary authority

concurring with the inculpatory finding imposed penalty of

removal from service on 31/8/2003. Appeals preferred thereafter

were dismissed.

7. Undoubtedly, the petitioner was holding the post of

constable in the police which is disciplined force where standard

of discipline is comparatively higher as compared to any other

non-uniformed services.

8. After adjudicating the issue, learned single judge found that

deposition of PWs in the disciplinary proceedings as regards

place of gambling being a public place was contradictory and

therefore prosecution case was held to be unreliable leading to the

order of removal from service.

8.1 From the above factual analysis it becomes vivid that in the

criminal proceedings which ended in acquittal and also in the

disciplinary proceedings which initially culminated in penalty of

removal from service which was set aside by learned single 4 WA.456.2011

judge, factum of petitioner indulging in gambling though could

not be established beyond all reasonable doubts but it cannot be

denied that there was evidence revealing involvement of

petitioner in gambling. The acquittal and as well as exoneration

of petitioner was technical in nature rather than honourable.

8.2 It is trite law in service jurisprudence that criminal trial and

disciplinary proceedings are distinct as both are held to achieve

different purposes. Former is to find out whether offence alleged

is proved beyond all reasonable doubt or not whereas the latter is

to decipher as to whether any misconduct in terms of the relevant

Service Rules has been committed by delinquent employee or

not. Standards of proof applicable in both these proceedings are

also distinct. In criminal cases proof beyond reasonable doubt

whereas in the disciplinary proceedings preponderance of

probability is the yardstick for assessment of evidence.

8.3 From perusal of evidence which has come on record in the

criminal case which ended in acquittal and also in disciplinary

proceeding it cannot be said that petitioner was

acquitted/exonerated honourably. Procedural technicality came in

way of prosecution/employer in finding petitioner guilty. As such

benefit of complete exoneration cannot be extended to petitioner 5 WA.456.2011

which is available only where acquittal is clean and honourable

and not based on technical grounds (lack of proof beyond

reasonable doubt/contradictory statement of prosecution

witnesses).

8.4 This court is bolstered in it's view by a recent decision of

Apex Court rendered in Civil Appeal No. 3340/2020 (State of

Rajasthan & others Vs. Heem Singh), decided on 29/10/2020

where after noticing, explaining and reconciling all the earlier

views on the said issue has held as under :-

      J       The effect of an acquittal
      34      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 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."

(emphasis supplied)

In Inspector General of Police v. S. Samuthiram, a two-

6 WA.456.2011

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 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 7 WA.456.2011

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 8 WA.456.2011

reinstatement since the Tamil Nadu Service Rules do not provide so."

(emphasis added).

35 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.

K      Conclusion

36     Therefore, the direction of the Division Bench for

reinstatement is set aside. In exercise of the jurisdiction under Article 142 of the Constitution, we direct that the cessation from service will notionally take place on the respondent completing minimum qualifying service. The direction of the High Court that the respondent shall not be entitled to back wages is upheld. The retiral dues of the respondent shall be computed and released on this basis within a period of three months.

37 The appeal is allowed in the above terms. No order as to costs.

38 Pending application(s), if any, stand disposed of."

9 WA.456.2011

9. After hearing the learned counsel for petitioner/appellant

and perusing the record and the order impugned this court does

not see any reason to interfere in the well reasoned order of the

learned single judge.

10. Consequently, the appeal fails and is dismissed, sans cost.

                          (Sheel Nagu)                        (Anand Pathak)
                             Judge                               Judge
DHANANJAY
                            25/3/3021                           25/3/2021
BUCHAKE
2021.03.26
11:08:10
             (Bu)
+05'30'