Mahendra Singh Bharti vs Union Of India
2022 Latest Caselaw 891 MP

                                       1         W.P. No.13579/2008


     HIGH COURT OF JUDICATURE AT JABALPUR (M.P.)

 SINGLE BENCH : HON'BLE JUSTICE NANDITA DUBEY

             Writ Petition No. 13579/2008

                  Mahendra Singh Bharti
                                 Vs.

                  Union of India and others
____________________________________________________
        Shri Mahendra Singh Bharti, petitioner in person.
        Shri Ashok Sinha,        learned    counsel     for    the
        respondents.


        Arguments heard on       : 26.09.2021
        Order delivered on       : 19.01.2022




                          ORDER

By this petition, the propriety and legality of the

order dated 26.10.2008 (Annexure P-5), passed by

respondent No.3 and notice dated 24.10.2008, issued by

Assistant Security Commissioner, RPF, Itarsi are under

challenge.

2. The facts of the case reveal that the petitioner

was working on the post of constable with the Railway

Protection Force. Initially, the petitioner was employed with

Armoured Corpus Centre and School, Ahmednagar,

Maharashtra, where he served from 1980 to 1985. He was

discharged (own request) from the Army Services and

thereafter recruited in the Railway Protection Force and

after training period was posted as Constable on

12.06.1995. Petitioner was served with a charge sheet

dated 24.10.2008 by the Assistant Security Commissioner,

Itarsi, whereby he was directed to remain present before

the enquiry officer for preliminary enquiry to be held on

31.10.2008 at Bhopal. The charge sheet mentioned that

earlier the petitioner has made a complaint against

respondent No.4, which was found false and baseless.

Thereafter, vide order dated 26.10.2008, petitioner has

been dismissed from service exercising the powers under

Rule 161.2 of RPF Rules, alleging that petitioner has

submitted false information at the time of seeking

employment.

3. The impugned order dated 26.10.2008 assailed

interalia on the ground that the same is passed without

holding any enquiry and in violation of principles of natural

justice. It is urged that the petitioner has earlier made a

complaint against respondent No.4, whereafter an enquiry

was conducted and charge sheet was issued to him. The

respondents without conducting proper enquiry with a

malafide intention terminated the service of petitioner.

4. Per contra, the stand of respondents is that the

order of termination dated 26.10.2008 has no connection

with the charge sheet dated 24.10.2008. It is stated that

the charge sheet was issued on the ground of dereliction of

duties and making false allegations and complaints against

senior officer, whereas the petitioner's services were

terminated for the reason that he obtained the service in

RPF by making false declaration in the application and

attestation form submitted by him. It is further argued that

an appeal is provided against the order of termination and

a further revision against the order of appellate authority.

Under such circumstances, filing of this petition without

availing the alternate remedy is not maintainable.

5. Heard the learned counsel for the parties and

perused the record.

6. As far as challenge to charge sheet is concerned,

the scope and extent of judicial review and interference in

the charge sheet permissible under Article 226 of the

Constitution of India is limited. It is settled law that

issuance of order or suspension or charge sheet at the

instance of the disciplinary authority to conduct an enquiry

cannot be treated as punishment and does not give rise to

a cause of action as no final order is passed at this stage.

Normally, a charge sheet is not quashed prior to conducting

the enquiry on the ground that facts stated in the charge

sheet are erroneous. The legal proposition in this regard

has already been settled by the Supreme Court in a number

of decisions that no writ lies against the charge sheet or

show cause notice unless the same is wholly without

jurisdiction or illegal for some other reasons.

7. Further, on perusal of record, it is evident that

the charge sheet issued on account of making false

complaint against his senior has no connection to the order

of termination which was passed on account of petitioner

giving false information in his application and attestation

form.

8. A perusal of the documents on record show that

petitioner was appointed on the post of Constable in the

year 1995. He had applied under the ex-servicemen

category (five years experience of service). With his

application, he submitted self attested copies of

certification of his service in Army from 18.09.1980 to

25.10.198, i.e., service of more than five years. He also

submitted attestation form declaring that he served in army

from 18.09.1980 to 25.10.1985. The warning clause 3 of

the attestation from clearly states that, "if the fact that

false information has been furnished or that there has been

suppression of any factual information in the attestation

form comes to the notice at any time during the service of

a person, his services would be liable to the terminated."

9. Later, a complaint was received that petitioner

has obtained service in RPF by submitting tampered

documents. Petitioner when asked to submit the original

documents, stated that his original documents were lost.

An enquiry was conducted by the Internal Vigilance Group

of RPF (IVG). The verification report regarding the

documents and service period submitted by the petitioner

was called from the Major Senior Record Officer, who vide

communication dated 17.05.2008 (Annexure R-3) informed

the IVG that the petitioner was enrolled in the Army on

18.09.1981 and discharged from service on 26.10.1986, on

his request on compassionate ground. The IVG submitted

its report dated 27.08.2008 (Annexure R-4). The IVG found

that petitioner has obtained appointment by giving false

declaration and using tampered documents and

recommended registration of FIR under Sections 419, 420,

467, 468 and 471 of I.P.C. and also to take strict action as

per 161.2 of RPF Rules.

10. Rule 161.2 provides that, "where the authority

competent to impose the punishment is satisfied for

reasons to be recorded by it in writing that it is not

reasonably practicable to hold an enquiry in the manner

provided in these rules, the authority competent to impose

the punishment may consider the circumstances of the

case and make such orders thereon as it deems fit."

11. The aforesaid rule itself provides that where it is

not reasonably practicable to hold an enquiry, the authority

competent after considering the circumstances may pass

such orders as it may deem fit.

12. In the instant case, the petitioner in his

application and attestation from has mentioned his period

of service as ex-servicemen from 18.09.1980 to

25.10.1985, whereas the verification report/letter dated

17.05.2008 (Annexure R-3) by Major Senior Record Officer

shows his date of enrollment in the Army as 18.09.1981.

Under the circumstances, when the original documents

were reported lost by the petitioner and the documents as

submitted by the petitioner at the time of applying for

service in RPF were on record, it was not practicable to hold

an enquiry. The authority concerned has not erred in

passing the impugned order in view of the warning clause

of attestation form and the verification report.

13. Further contention of petitioner is that since both

the criminal and departmental proceedings were based on

the same set of facts, therefore, after he being acquitted in

the criminal case is entitled to be reinstated and the order

of dismissal based on the report of IVG is not legally

tenable. A perusal of the documents show that the

allegation in departmental proceedings and the criminal

case were totally different. In the criminal case, he was

charged for committing an offence under Sections 419,

420, 467, 468, 471 of I.P.C. that he obtained service in RPF

by manipulating his earlier service records, whereas in

departmental proceedings, the charge is that he

suppressed or gave wrong information in the application

and attestation form.

14. The enquiry in a departmental proceedings

relates to conduct or breach of duty of the delinquent

officer to punish him for his misconduct defined under the

relevant statutory rules or law, and proof in that behalf is

not as high as in an offence in criminal charge. The nature

of evidence in criminal trial is entirely different from the

departmental proceedings. In the former, prosecution is to

prove its case beyond reasonable doubt on the touchstone

of human conduct. The standard of proof in the

departmental proceedings is not the same as of the

criminal trial. The evidence also is different from the

standard point of the Evidence Act. The evidence required

in the departmental enquiry is not regulated by the

Evidence Act. (See (1999) 2 SCC 699 Depot Manager

A.P. State Road Transport Corporation Vs. Mohd.

Yousuf Miya and Others.)

15. The scope of departmental enquiry and judicial

proceedings and the effect of acquittal by a criminal court

has been examined in (2019) 7 SCC 799 Shashi Bhusan

Prasad vs Inspector General, CISF, wherein the

Supreme Court after reiterating the law laid down in the

case of (2005) 7 SCC 764 Ajit Kumar Nag Vs. General

Manager (PJ), Indian Oil Corporation Limited, Haldia

and Others has held thus :-

"18. The exposition has been further affirmed by a three Judge Bench of this Court in Ajit Kumar Nag Vs. General Manager (PJ), Indian Oil Corporation Limited, Haldia and Others , this Court held as under: "As far as acquittal of the appellant by a criminal court is concerned, in our opinion, the said order does not preclude the Corporation from taking an action if it is otherwise permissible. In our judgment, the law is fairly well settled. Acquittal by a criminal court would

not debar an employer from exercising power in accordance with the Rules and Regulations in force. The two proceedings, criminal and departmental, are entirely different. They operate in different fields and have different objectives. Whereas the object of criminal trial is to inflict appropriate punishment on the offender, the purpose of enquiry proceedings is to deal with the delinquent departmentally and to impose penalty in accordance with the service rules. In a criminal trial, incriminating statement made by the accused in certain circumstances or before certain officers is totally inadmissible in evidence. Such strict rules of evidence and procedure would not apply to departmental proceedings. The degree of proof which is necessary to order a conviction is different from the degree of proof necessary to record the commission of delinquency. The rule relating to appreciation of evidence in the two proceedings is also not similar. In criminal law, burden of proof is on the prosecution and unless the prosecution is able to prove the guilt of the accused "beyond reasonable doubt", he cannot be convicted by a court of law. In a departmental enquiry, on the other 4 2005(7) SCC 764 hand, penalty can be imposed on the delinquent officer on a finding recorded on the basis of "preponderance of probability". Acquittal of the appellant by a Judicial Magistrate, therefore, does not ipso facto absolve him from the liability under the disciplinary jurisdiction of the Corporation. We are, therefore, unable to uphold the contention of the appellant that since he was acquitted by a criminal court, the impugned order dismissing him from service deserves to be quashed and set aside."

(Emphasis supplied)

19. We are in full agreement with the exposition of law laid down by this Court and it is fairly well settled that two proceedings criminal and departmental are entirely different. They operate in different fields and have different objectives.

Whereas the object of criminal trial is to inflict appropriate punishment on an offender, the purpose of enquiry proceedings is to deal with the delinquent departmentally and to impose penalty in accordance with the service Rules. The degree of proof which is necessary to order a conviction is different from the degree of proof necessary to record the commission of delinquency. Even the rule relating to appreciation of evidence in the two proceedings is also not similar. In criminal law, burden of proof is on the prosecution and unless the prosecution is able to prove the guilt of the accused beyond reasonable doubt, he cannot be convicted by a Court of law whereas in the departmental enquiry, penalty can be imposed on the delinquent on a finding recorded on the basis of 'preponderance of probability'. Acquittal by the Court of competent jurisdiction in a judicial proceeding does not ipso facto absolve the delinquent from the liability under the disciplinary jurisdiction of the authority. This what has been considered by the High Court in the impugned judgment in detail and needs no interference by this Court."

16. In view of the aforestated facts and law, there is

no merit in the petition. The petition is dismissed

accordingly.

(Nandita Dubey) Judge SMT. GEETHA NAIR 19/01/2022 gn 14:32:08 +05'30' 2022.01.19