Rajasthan High Court

Ex-Ct-Gd,Mahavir Prasad vs Union Of India And Ors on 4 February, 2023

Bench: Anoop Kumar Dhand

[2023/RJJP/000898]

        HIGH COURT OF JUDICATURE FOR RAJASTHAN
                    BENCH AT JAIPUR

                 S.B. Civil Writ Petition No. 3114/2009

Ex-CT/GD, Mahavir Prasad, of 118 Bn CRPF son of Shri Gula
Ram, aged 25 years, Village Kairly, Post Office Bajrangpura,
Police Station Shahpura, District Jaipur (Rajasthan)
                                                                    ----Petitioner
                                    Versus
1. Union Of India through Secretary, Ministry of Home Affairs,
New Delhi
2. Director General, CRPF, CGO Complex, Lodhi Road, New Delhi
3. Inspector General of Police, Bihar Sector, CRPF, Patna (Bihar)
4. Deputy Inspector General of Police, CRPF, Sindri (Jharkhand)
5. Commandant-118 Bn CRPF, Srinagar (J&K) through IGP Bihar
Sector, CRPF, Patna
                                                                 ----Respondents

For Petitioner(s)          :    Mr. M.R. Yadav
For Respondent(s)          :    Mr. Gaurav Jain

         HON'BLE MR. JUSTICE ANOOP KUMAR DHAND

Reserved on                             :                        24/01/2023
Pronounced on                           :                        04/02/2023

                                     Order


(1)         Invoking the extra-ordinary jurisdiction of this court,

the petitioner has submitted this petition seeking the following

reliefs :-

"(i) the impugned orders dated 3.1.2008 (Annexure-8), 17.4.2008 (Annexure-13), 23.8.2008 (Annexure-15) and order dated 19.11.2008 (Annexure-17) may kindly be quashed and set-aside and the petitioner may kindly be reinstated in service with all consequential benefits;

(ii) Any other appropriate order which may be found just and proper in the facts and circumstances of the case."

(2) The background facts need to be noted, in brief are

that the petitioner as a Constable joined duties on 12.6.2004 in

the Central Reserve Police Force (for short "CRPF") in Srinagar.

[2023/RJJP/000898] (2 of 12) [CW-3114/2009]

(3) A departmental inquiry was ordered against the

petitioner under Section 11(1) of the Central Reserve Police Force

Act, 1949 (for short "Act 1949") read with Rule 27 of the Central

Reserve Police Force Rules, 1955 (for short "Rules 1955") vide

Office Orders dated 11.9.2007 and 8.10.2007 with following

charges :-

ARTICLE-I

"That No. 041598499 CT/GD Mahavir Prasad of A/118 Bn, CRPF while functioning as CT/GD committed an act of gross misconduct and disobedience or orders in his capacity as a member of the Force under section 11(1) of CRPF Act, 1949 read with rule 27 of CRPF Rules, 1955 in that he proceeded on 60 days EL with 15 days PL w.e.f. 17/2/2007 to 2/5/2007 and on expiry of sanctioned leave he was to report for duty on 2.5.2007 evening roll call but he failed to do so and overstaying from leave w.e.f. 3/5/2007 (FN) to date without prior permission/sanction from the competent authority despite of orders/directions to report for duty forthwith, which is prejudicial to good orders and discipline of the Force, thus he has committed an act of misconduct in the capacity of a member of the Force."

ARTICLE-II

"That No. 041598499 CT/GD Mahavir Prasad of A/118 Bn, CRPF while functioning as CT/GD committed an act of gross misconduct in his capacity as a member of the Force under Section 11(1) of CRPF Act, 1949 read with rule 27 of CRPF Rules, 1955 in that he, while availing 60 days EL with 15 days PL w.e.f. 17/2/2007 to 2/5/2007 allegedly involved in criminal ACT by torturing and killing his wife Smt. Anuradha (Bittu) for dowry. A criminal case against him was registered vide FIR no. 183/2007 under PS Shahpur, Dist-Jaipur (Rajasthan) and was arrested on 8/4/2007, and was taken into judicial custody in Sub- Jail, Kotputli, Dist-Jaipur (Rajasthan) since then as per report of SP, District Jaipur (Rural), Jaipur vide letter No. 13382-85 dated 11/6/2007 and No. 23924 dated 1/9/2007. Further, the aforesaid CT/GD Mahavir Prasad did not inform the competent authority about his detention. Thus the aforesaid CT/GD Mahavir Prasad concealed the above facts and did not maintain absolute integrity and committed an act of moral turpitude and grave misconduct which is unbecoming of a member of the disciplined Force."

[2023/RJJP/000898] (3 of 12) [CW-3114/2009]

(4) The memorandum along with statement of article of

charges along with list of witnesses, was served upon the

petitioner. After giving opportunity of hearing to the petitioner,

the following facts of the case were brought out in the

departmental inquiry proceedings :-

"(i) No.041598499 CT/GD Mahavir Prtasad of A/118 Bn,CRPF was sanctioned 60 days EL with 15 days PL w.e.f. 17/02/07 to 02/05/07, he was due to report on 03/05/07 to join his duties but he failed to do so and became OSL w.e.f. 03/05/2007 without any prior permission/sanction of the competent authority. Neither he informed about his OSL nor did submit any application to extend his leave.

(ii) No.041598499 CT/GD Mahavir Prasad of A/118 Bn, CRPF while he was on 60 days EL with 15 days PL from 17/02/07 to 02/05/07, a criminal case against said CT/GD Mahavir Prasad was registered under section 304B, 398A IPC vide FIR No.183/2007 under P.S.-Shahpur, Dist-Jaipur(Rajasthan) and the said CT/GD was arrested on 8/4/2007 and detained in Sub-Jail, Kotputli, Dist-Jaipur since released on bail on 25/11/2007.

(iii) On receipt of information from S.P. Rural, Dist-Jaipur vide his letter No.13382-85 dated 11/6/2007 & No.23924 dated 1/9/2007 about his detention w.e.f. 8/4/2007, in terms of Sub-rule (2) of Rule 10 of CCS(CCA) Rules, 1965, read with rule 27(A) of CRPF Rule 1955 individual deemed under suspension from the date of detention i.e. 8/4/2007 vide this Office order No.P.VIII-7/2007-118-EC.II dated 22/9/2007.

(iv) Although charges contained in Article-I of Annexure-I & Annesure-II are not proved. However charges contained in Article-II of Annexure-I and Annexure-II stand proved without any shadow of doubt."

(5) Copy of the above inquiry report was provided to the

petitioner after giving him the opportunity of hearing and after

considering the representation and submissions of the petitioner,

the Commandant 118 Battalion, CRPF Srinagar, found that the

petitioner has committed a serious misconduct and the charge

levelled against him in Article-II, was proved beyond the shadow

of doubt and the offence committed by him was found to be

[2023/RJJP/000898] (4 of 12) [CW-3114/2009]

prejudicial to the good order and discipline of the Force and by

exercising the powers contained under Section 11(1) of the Act

1949 and under Rule 27 of Rules 1955, punishment of dismissal

from the Force was passed against the petitioner on 3.1.2008.

Aggrieved by the impugned order dated 3.1.2008, the petitioner

unsuccessfully submitted appeal, revision before the higher

authorities but the same were rejected vide impugned orders

dated 17.4.2008, 23.8.2008 and 19.11.2008. Aggrieved by these

impugned orders, the petitioner has approached this court.

(6) Learned counsel for petitioner submitted that the

petitioner was sanctioned leaves w.e.f. 17.2.2007 to 2.5.2007.

The petitioner was supposed to join his duties on 2.5.2007 and he

reserved his ticket with the Railways, but he was arrested in a

criminal case / FIR no. 183/2007 registered with Police Station

Shahpura District Jaipur and he was taken in judicial custody on

8.4.2007, hence he could not inform the authorities the reasons of

his absence from duties. Counsel submits that the department

lodged a criminal complaint against the petitioner under Section

10(m) of Act 1949 and warrant of arrest was issued against the

petitioner by Chief Judicial Magistrate cum Commandant, CRPF

vide order dated 29.6.2007 for unauthorised absence of the

petitioner. Thereafter the petitioner was apprehended from jail on

1.9.2007, and on 26.11.2007 he was declared as deserter.

Counsel submits that charge-sheet was served upon the petitioner

with two charges and the charge no. I was not found to be proved

against him and the charge no. II was found to be proved against

him and an order of dismissal from service was passed against

him by the Commandant, Batallion 118 CRPF vide impugned order

[2023/RJJP/000898] (5 of 12) [CW-3114/2009]

dated 3.1.2008. Counsel submits that the petitioner faced trial for

the offences under Section 304-B and 498-A of the Indian Penal

Code (for short "IPC") with the charge of committing dowry death

of his wife Bittu @ Anuradha. Counsel submits that though the

petitioner was found guilty for the above charges in trial by the

Court of Additional Sessions Judge, Shahpura District Jaipur in

Sessions Case No. 30/2007 vide judgment dated 23.6.2012 and

the petitioner was sentenced to undergo life imprisonment, but

the Division Bench of this court allowed the Criminal Appeal No.

510/2012 submitted by the petitioner, vide judgment dated

31.1.2019 and acquitted the petitioner from both offences under

Sections 304-B and 498-A IPC. Counsel submits that the Division

Bench of this court held that the prosecution failed to prove the

case against the petitioenr that he tortured or harassed his wife

for demand of dowry. Counsel submits that the defence taken by

the petitioner was relied by this court that the petitioner was

serving in CRPF and his deceased wife wanted to live with him, but

the petitioner could not keep her, hence due to the said reason the

deceased might have gone into depression and committed suicide.

Counsel submits that respondents have proceeded against the

petitioner under Sections 10(m) and 11(1) of the Act 1949 and

under Rule 27 of the Rules 1955, and the order of dismissal from

service is without jurisdiction. Counsel submitted that Sections

10(m) and 11(1) of the Act 1949 only provided for minor

punishments and did not provide for major punishment like

dismissal from service. Counsel submits that in view of the

submissions made hereinabove, the impugned orders may be

quashed and set aside.

[2023/RJJP/000898] (6 of 12) [CW-3114/2009]

(7) Per contra, learned counsel for the respondents

opposed the arguments raised by the counsel for the petitioner.

Counsel submitted that the charge under Article-II was proved

against the petitioner beyond the shadow of doubt and the offence

committed by the petitioner was found to be prejudicial to the

good order and discipline of the Force, that is why the disciplinary

authority exercised its powers under Section 11(1) of the Act 1949

and Rule 27 of the Rules 1955 and passed the punishment order

of dismissal from service against the petitioner. Counsel

submitted that Section 11 and Rule 27 do not provide only for

minor punishments but it provides that dismissal from service is

permitted, hence interference of this court is not called for. In

support of his contentions he has placed reliance on the following

judgments :-

(i) Union of India and Ors. v. Ghulam Mohd. Bhat (2005) 13 SCC 228

(ii) Union of India & Ors v. Diler Singh (2016) 13 SCC 71

(iii) Central Industrial Security Force and Ors v. Abrar Ali (2017) 4 SCC 507

(iv) Mahipal Singh v. UOI & Ors [S.B. Civil Writ Petition No. 9246/2002 decided on 22.08.2019]

(v) Union of India (UOI) and Ors v. Dalbir Singh (2021) 11 SCC 321

(8) Heard the counsel for the parties and perused the

material available on the record.

(9) The following two core issues emerges for consideration

of this court :-

(i) whether under Section 11(1) of the Act 1949, punishment of dismissal can be imposed?

(ii) whether acquittal of the petitioner in criminal case exonerates the petitioner from the charge of misconduct which has been established in the disciplinary proceedings as preponderance of probabilities?

[2023/RJJP/000898] (7 of 12) [CW-3114/2009]

(10) The first issue - whether under Section 11 of the Act

1949 punishment of dismissal can be imposed or not. The

controversy is no more res integra. In the case of Ghulam Mohd.

Bhat (supra) the Hon'ble Supreme Court, while interpreting

Section 11 of the Act 1949, has held in paras 5 to 8 as under :-

"5. A bare perusal of Section 11 shows that it deals with minor punishment as compared to the major punishments prescribed in the preceding section. It lays down that the Commandant or any other authority or officer, as may be prescribed, may, subject to any rules made under the Act, award any one or more of the punishments to any member of the Force who is found guilty of disobedience, neglect of duty, or remissness in the discharge of his duty or of other misconduct in his capacity as a member of the Force. According to the High Court the only punishments which can be awarded under this section are reduction in rank, fine, confinement to quarters and removal from any office of distinction or special emolument in the Force. In our opinion, the interpretation is not correct, because the section says that these punishments may be awarded in lieu of, or in addition to, suspension or dismissal.

6. The use of words "in lieu of, or in addition to, suspension or dismissal", appearing in sub-section (1) of Section 11 before Clauses (a) to (e) shows that the authorities mentioned therein are empowered to award punishment of dismissal or suspension to the member of Force who is found guilty and in addition to, or in lieu thereof, the punishment mentioned in Clauses (a) to (e) may also be awarded.

7. It may be noted that Section 9 of the Act mentions serious or heinous offences and also prescribes penalty which may be awarded for them. Section 10 deals with less heinous offences and Clause (m) thereof shows that absence of a member of the Force without leave or without sufficient cause or overstay without sufficient cause, is also mentioned as less heinous offence and for that also a sentence of imprisonment is provided. It is, therefore, clear that Section 11 deals with only those minor punishments which may be awarded in a departmental inquiry and a plain reading thereof makes it quite clear that a punishment of dismissal can certainly be awarded there under even if the delinquent is not prosecuted for an offence under Section 9 or Section 10(m).

8. It is fairly well settled position in law that removal is a form of dismissal. This Court in Dattatraya Mahadev Nadkarni (Dr.) v. Municipal Corporation of Greater Bombay (1993) II LLJ 813 SC explained that removal and dismissal from service stand on the same footing and both bring about termination of service though every termination of service does not amount to removal or dismissal. The only difference between the two is that in the case of dismissal the employee is disqualified from future employment while in the case of removal he is not

[2023/RJJP/000898] (8 of 12) [CW-3114/2009]

debarred from getting future employment. Therefore, dismissal has more serious consequences in comparison to removal. In any event, Section 11(1) refers to the Rules made under the Act under which action can be taken. Rule 27 is part of Rules made under the Act. Rule 27 clearly permits removal by the competent authority. In the instant case the Commandant who had passed the order of removal was the competent authority to pass the order."

(11) The view taken in the case of Ghulam Mohd. Bhat

(supra) was further confirmed by the Hon'ble Apex Court in the

case of Diler Singh (supra) and it was held that in exercise of

powers under section 11(1) of the Act 1949, punishment of

dismissal can be imposed. In view of the judgment delivered by

the Hon'ble Apex Court, it is clear that there is no illegality in the

impugned order passed by the authority under Section 11(1) of

the Act 1949.

(12) Now this court proceeds further to decide the next issue

i.e. issue no. (ii).

The charge against the petitioner was that he has

committed an act of grave misconduct as a member of the Force

by involving himself in a criminal act by torturing and killing his

wife Smt. Anuradha (Bittu) for dowry. A criminal case under

Section 304-B, 498-A IPC was lodged against him and he was

taken into judicial custody in Sub Jail, Kotputli District Jaipur and

he did not inform the authorities about his detention. He

committed an act of moral turpitude and grave misconduct for

unbecoming a member of the disciplined Force. And this charge

was proved against the petitioner beyond shadow of doubt and the

offence was found to be prejudicial to the good order and

discipline to the Force, and accordingly the punishment order of

dismissal from the Force was passed by the authority vide order

dated 3.1.2008, which was unsuccessfully challenged by the

[2023/RJJP/000898] (9 of 12) [CW-3114/2009]

petitioner before the higher authorities and the same was upheld

vide orders dated 17.4.2008, 23.8.2008 and 19.11.2008.

(13) Time and again Hon'ble Apex Court has held that

acquittal of a person by a court of law does not ipso facto absolve

him from the liability under disciplinary jurisdiction of the

authority. Hon'ble Apex Court in the case of Ajit Kumar Nag v.

General Manager (P.J.), Indian Oil Corporation Ltd., Haldia & Ors

(2005) 7 SCC 764, has held that "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. 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 hand, penalty can be imposed

on the delinquent officer on a finding recorded on the basis of

"preponderance of probability". It was held as under :-

"11. 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 hand, penalty can be imposed on the delinquent officer on a finding recorded on the basis

[2023/RJJP/000898] (10 of 12) [CW-3114/2009]

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]

(14) The Hon'ble Apex Court in the case of Noida

Entrepreneurs Association v. NOIDA & Ors (2007) 10 SCC 385,

held that the criminal prosecution is launched for an offence for

violation of a duty, the offender owes to the society or for breach

of which law has provided that the offender shall make satisfaction

to the public, whereas, the departmental inquiry is to maintain

discipline in the service and efficiency of public service. It was held

as under:

"11. A bare perusal of the order which has been quoted in its totality goes to show that the same is not based on any rational foundation. The conceptual difference between a departmental inquiry and criminal proceedings has not been kept in view. Even orders passed by the executive have to be tested on the touchstone of reasonableness. [See Tata Cellular v. Union of India [(1994) 6 SCC 651] and Teri Oat Estates (P) Ltd. v. U.T., Chandigarh [(2004) 2 SCC 130].] The conceptual difference between departmental proceedings and criminal proceedings have been highlighted by this Court in several cases. Reference may be made to Kendriya Vidyalaya Sangathan v. T. Srinivas [(2004) 7 SCC 442 : 2004 SCC (L&S) 1011], Hindustan Petroleum Corporation Ltd. v. Sarvesh Berry [(2005) 10 SCC 471 : 2005 SCC (Cri.) 1605] and Uttaranchal RTC v. Mansaram Nainwal [(2006) 6 SCC 366 : 2006 SCC (L&S) 1341].

"8.... The purpose of departmental inquiry and of prosecution are two different and distinct aspects.

The criminal prosecution is launched for an offense for violation of a duty, the offender owes to the society or for breach of which law has provided that the offender shall make satisfaction to the public. So crime is an act of commission in violation of law or of omission of public duty. The departmental inquiry is to maintain discipline in the service and efficiency of public service. It would, therefore, be expedient that the disciplinary proceedings are conducted and completed as expeditiously as possible. It is not, therefore, desirable to lay down any guidelines as inflexible Rules in which the departmental proceedings may or may not be stayed pending trial in the criminal cases against the delinquent officer. Each case requires to be considered in the backdrop of its own facts and circumstances. There would be no bar to proceed simultaneously with departmental

[2023/RJJP/000898] (11 of 12) [CW-3114/2009]

inquiry and trial of a criminal case unless the charge in the criminal trial is of grave nature involving complicated questions of fact and law. Offense generally implies infringement of public duty, as distinguished from mere private rights punishable under criminal law. When the trial for a criminal offense is conducted it should be in accordance with proof of the offense as per the evidence defined under the provisions of the Indian Evidence Act, 1872 [in short 'the Evidence Act']. The converse is the case of departmental inquiry. The inquiry in a departmental proceeding 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. That the strict standard of proof or applicability of the Evidence Act stands excluded is a settled legal position. Under these circumstances, what is required to be seen is whether the departmental inquiry would seriously prejudice the delinquent in his defense at the trial in a criminal case. It is always a question of fact to be considered in each case depending on its own facts and circumstances.""

[emphasis supplied]

(15) The Hon'ble Supreme Court in Depot Manager, Andhra

Pradesh State Road Transport Corporation v. Mohd. Yousuf Miya

and Ors (1997) 2 SCC 699, has held in para 7 that :-

"7... There is yet another reason. The approach and the objective in the criminal proceedings and the disciplinary proceedings is altogether distinct and different. In the disciplinary proceedings, the question is whether the respondent is guilty of such conduct as would merit his removal from service or a lesser punishment, as the case may be, whereas in the criminal proceedings, the question is whether the offences registered against him under the Prevention of Corruption Act (and the Indian Penal Code, 1860, if any) are established and, if established, what sentence should be imposed upon him.

The standard of proof, the mode of enquiry and the rules governing the enquiry and trial in both the cases are entirely distinct and different. Staying of disciplinary proceedings pending criminal proceedings, to repeat, should not be a matter of course but a considered decision. Even if stayed at one stage, the decision may require reconsideration if the criminal case gets unduly delayed." [emphasis supplied]

(16) The burden of proof in the departmental proceedings is

not beyond reasonable doubt as is the principle in the criminal

trial, but probabilities of the misconduct. Unlike a criminal

proceeding, when the charge has to be established beyond

reasonable doubt in a disciplinary proceeding, a charge of

misconduct has to be established on preponderance of

[2023/RJJP/000898] (12 of 12) [CW-3114/2009]

probabilities. The rules of evidence which apply to a criminal trial

are distinct from those which govern a disciplinary inquiry. The

acquittal of the accused in a criminal case does not debar the

employer proceeding in the exercise of disciplinary action.

(17) On perusal of the material available on the record, this