The Union Of India Through D.G vs Surajpat Paswan on 18 April, 2024

[Cites 17, Cited by 0]

Jharkhand High Court

The Union Of India Through D.G vs Surajpat Paswan on 18 April, 2024

1. The instant intra-court appeal, under clause 10 of the Letters Patent, is directed against the order/judgment dated 17.03.2021 passed by the learned Single Judge of this Court in W.P.(S) No. 5940 of 2009 whereby and whereunder the order of Page 1 punishment dated 27.03.2007 by which the petitioner was imposed with the penalty of compulsory retirement having been confirmed by the appellate authority vide order dated 10.02.2009 and revision order dated 19.5.2009 have been quashed and set aside.

2. The brief facts of the case which have been enumerated in the writ petition is as follows:

3. The petitioner while posted as Head Constable (General Duty), Area-4 of CISF Unit, BCCL, Dhanbad, the respondent concerned framed charge against the petitioner by memorandum dated 26.9.2006 as under:

(1) No. 823240162 Head Constable (General Duty) Surajpat Paswan of CISF Unit, BCCL, Dhanbad, Area No.-4, while residing in Government Family accommodation Qr. No.- 7 at Salanpur with family members, has destroyed the sacred relationship, i.e., father and daughter, in the intervening night of 17/18.9.2006 which is very heinous in the eye of society.

The above act on the part of No. 823240162 Head Constable (Oeneral Duty), Surajpat Paswan tarnished the image of the Force in the eye of public as well as the society.

(ii) As per the service records of No. 823240162 Head Constable (General Duty), Surajpat Paswan of CISF Unit, BCCL, Dhanbad, Area No.-4, in which he has been awarded 3 punishments for various indiscipline activities during his service career.

Page 2

4. By order dated 26.10.2006, an Enquiry officer was appointed to conduct the disciplinary Officer proceeding against the petitioner, accordingly, the Departmental Proceeding was conducted and the enquiry officer submitted enquiry report on 20.1.2007 whereby it is said that the charge levelled against the petitioner was proved.

5. On the basis of the said enquiry report, the Disciplinary Authority passed the order dated 27th March, 2007 whereby and whereunder the penalty of compulsory retirement has been imposed upon the petitioner.

6. Further it has come on record that a criminal case was also lodged against the petitioner for the same set of allegation and by judgement dated 20.9.2008 passed in Sessions Trial No. 588 of 2006, the leaned Additional Sessions Judge-1, Dhanbad has passed a judgment of acquittal dated 23.9.2008, wherein it has been categorically held that the prosecution has miserably failed to prove the charge against the accused (respondent/writ petitioner herein) and accordingly is was held that the accused was not guilty of the charge under Section 376 of the Indian Penal Code.

7. Thereafter, the respondent/writ petitioner came out of the Jail and made an application before the Deputy Inspector Page 3 General, CISF, BCCL, Dhanbad by his representation dated 25.9.2008 requesting that the petitioner be reinstated in service.

8. The appellate authority, the Deputy Inspector general, CISF, BCCL, Dhanbad dismissed the appeal of the petitioner by order dated 10.2.2009 on the ground of its being barred by limitation and hence without entering into the merit, the appeal of the petitioner was dismissed by the appellate authority.

9. Further the petitioner having left with no option submitted representation before the Inspector General, CISF, Eastern Zone, Headquarter Patna which was treated as revision and the Inspector General, CISF, Eastern Zone, Headquarter Patna, vide order dated 19.5.2009 has rejected by the revision/representation of the petitioner.

10. Aggrieved with the order of original authority dated 27.03.2007, appellate order dated 10.02.2009 and order of revisional authority dated 19.05.2009 the respondent/writ petitioner has preferred the writ petition being W.P.(S) 5940 OF 2009.

11. Before the writ Court the writ petitioner had taken the ground that the entire departmental proceeding was conducted by the respondents while the petitioner was in judicial custody. Since the petitioner was in judicial custody as such, he was deprived of his legal rights to consult any legal expert and Page 4 therefore the impugned orders are not sustainable in the eyes of law.

12. Petitioner has further taken the ground that for the same set of allegations, a criminal case was also lodged against him in which he has been acquitted vide judgment dated 23.9.2008 and hence the order of punishment dated 27the March, 2007 is to be quashed.

13. The petitioner has also taken the ground that the charges and evidence in the criminal case vis-a-vis the departmental proceeding were the one and same and once the competent court has been pleased to pass an order of acquittal, the respondents authorities ought to have revised the order of punishment imposed upon the petitioner for the ends of justice.

14. Per contra, learned counsel for respondent/appellant had contended that acquittal in criminal case shall not be relevant due to settled position of 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 charge has to be proved on the basis of preponderance of probabilities and herein the department has been able to prove the case on the standard of preponderance of probabilities; therefore, the Page 5 submission of the learned counsel for the petitioner does not have any merit and fit to be rejected.

15. The learned Single Judge after hearing both the parties had allowed the said writ petition and quashed the impugned order dated 27.03.2007, appellate order dated 10.02.2009, and revisional order dated 19.05.2009.

16. Hence this appeal.

Submission of the learned counsel for the appellant

17. Mr. Prabhat Kumar Sinha, learned CGC appearing for the appellant has submitted that while quashing the order impugned the learned Single Judge has taken the sole ground i.e. acquittal of writ petitioner in criminal case but the same cannot be a ground to interfere with the order of punishment due to the reason that the departmental and the criminal proceeding are two parallel proceedings having no bearing upon each other.

18. Further, contention has been made that the learned Single Judge considering the said acquittal to be honorable acquittal which led the learned Single Judge to interfere with the impugned order.

19. The learned counsel for the appellants has submitted by referring to the judgment of acquittal wherein most of the witnesses including the victim girl had not supported the prosecution case and hence there is no appreciation of the issue on Page 6 merit, as such the same cannot be said to be the honourable acquittal. But the Learned Single Judge has not appreciated the aforesaid facts in right perspective and hence, the impugned order suffers from an error and as such not sustainable in the eye of law. Analysis

20. We have heard the learned counsel for the appellant and gone across the findings recorded by the Learned Single Judge in the impugned order.

21. It appears from the order-sheet that the Co-ordinate Bench after going through the issue had issued notice upon the respondents as would appear from the order dated 30.06.2023 under registered cover with A/D as also ordinary process making the said notice returnable within four weeks with a specific date having fixed as 11.08.2023. The steps for issuance of notice was taken.

22. It appears from the office note dated 18.04.2023 that the service report of earlier ordinary process notice has been received with the report that the notice has been received by the respondent personally. However, so far as the process of service of notice personally, affidavit was directed to be filed which has also been filed showing the service being affected personally also. The matter thereafter was listed on board on 09.10.2023.

Page 7

23. The Co-ordinate Bench of this Court has taken cognizance of the fact about the service report from the process server that the notice has been received by Surajpat Paswan but none appears for the respondent, however, in order to grant one more opportunity to the respondent, hearing of the appeal was adjourned to 07.11.2023 and the matter was directed to be taken up under the heading ―For Final Disposal‖.

24. For ready reference the said order has been referred as under:

"Mr. Prabhat Kumar Sinha, the learned counsel for Union of India has drawn our attention to the supplementary affidavit dated 21st September 2023 to submit that dasti summons has been served upon the respondent on 16th September 2023.

2. There is a service report from the process server that notice has been received by Surajpat Paswan.

3. No one appears for the respondent.

4. However, to grant one more opportunity to the respondent, hearing of this Letters Patent Appeal is adjourned for 7th November 2023 to be taken up under the heading "Final Disposal".

5. Having regard to the nature of allegation and previous misconduct committed by the respondent, there shall be an order of stay of the writ Court's order dated 17th March 2021 passed in W.P(S) No.5940 of 2009.

6. Mr. Prabhat Kumar Sinha, the learned counsel for Union of India undertakes to ensure that a copy of this order is served upon the respondent before the next date of hearing and file an affidavit in this regard.

7. I.A No.6111 of 2021 for stay of impugned order is allowed."

25. Thereafter, again vide order dated 07.11.2023 Co-ordinate Bench of this Court in view of the statement made in affidavit 21.09.2023 and 02.11.2023, the Letters Patent Appeal is set for ex- parte hearing on 23.11.2023 to be posted under the heading of ―Final Disposal‖. However, with the observation that if the Page 8 respondent appears through his counsel and contests the matter he shall be heard by this Court.

26. For the ready reference, the order dated 07.11.2023 is being referred herein as under:

―Mr. Prabhat Kumar Sinha, the learned counsel for the Union of India refers to the affidavit dated 21st September 2023 to submit that the respondent has been duly served the notice on 16th September 2023.

2. The learned counsel further refers to affidavit dated 02nd November 2023 to apprise the Court that a copy of the order dated 09th October 2023 has also been served upon the respondent who has personally received the same on 16th October 2023.

3. In view of the statement made in affidavit dated 21st September 2023 and 02nd November 2023, the present Letters Patent Appeal is set for ex parte hearing on 23rd November 2023 to be posted under the heading "Final Disposal".

4. However, it is indicated that, if the respondent appears himself or through his counsel and contests the matter he shall be heard by the Court."

27. This Court has proceeded to hear the matter, since, still no one appeared on behalf of the respondent.

28. It is evident from the factual aspect as referred that the respondent writ petitioner while working as Head Constable G.D. in the Central Industrial Security Force (CISF) was taken into judicial custody in connection with Katras P.S. Case No. 228 of 2008 on the ground of allegation that he has been found to be involved in establishing physical relationship with his daughter.

29. The petitioner subsequently has also been proceeded departmentally; memorandum of charge was issued. The writ petitioner was directed to participate in the inquiry. In the inquiry, the charge has been found to be proved. The disciplinary Page 9 authority while accepting the report of the Inquiry Officer has imposed punishment of compulsory retirement from service upon the respondent/writ petitioner.

30. The writ petitioner has carried the said order before the appellate authority as also the revisional authority but both the authorities have declined to reverse the decision so taken by the original authority.

31. However, after the order of the disciplinary authority, the writ petitioner has been acquitted from the criminal charges, based upon the said ground the writ petitioner has represented before the authority for recall of the order of punishment of compulsory retirement. But the appellate authority as well as Revisional authority had not acceded to the prayer of the respondent/writ petitioner.

32. Aggrieved from order of original authority dated 27.03.2007, appellate order dated 10.02.2009 and order of revisional authority dated 19.05.2009 the respondent/writ petitioner has preferred the writ petition being W.P.(S) 5940 OF 2009.

33. The learned single Judge vide order dated 17.03.2021 has quashed the impugned orders, hence the present appeal.

34. This Court, before adverting in to contention of the learned counsel for the appellants, deems it fit and proper to refer Page 10 the judgment of the Hon'ble Apex Court in the case of M. Paul. Anthony v. Bharat Gold Mines Ltd. reported in (1999) 3 SCC 679 wherein the Hon'ble Apex Court while dealing with the situation of simultaneous continuation of departmental proceeding vis-à-vis criminal proceeding, has arrived at following conclusions: --

"22. The conclusions which are deducible from various decisions of this Court referred to above are:

(i) Departmental proceedings and proceedings in a criminal case can proceed simultaneously as there is no bar in their being conducted simultaneously, though separately.

(ii) If the departmental proceedings and the criminal case are based on identical and similar set of facts and the charge in the criminal case against the delinquent employee is of a grave nature which involves complicated questions of law and fact, it would be desirable to stay the departmental proceedings till the conclusion of the criminal case.

(iii) Whether the nature of a charge in a criminal case is grave and whether complicated questions of fact and law are involved in that case, will depend upon the nature of offence, the nature of the case launched against the employee on the basis of evidence and material collected against him during investigation or as reflected in the charge-sheet.

(iv) The factors mentioned at (ii) and (iii) above cannot be considered in isolation to stay the departmental proceedings but due regard has to be given to the fact that the departmental proceedings cannot be unduly delayed.

(v.) If the criminal case does not proceed or its disposal is being unduly delayed, the departmental proceedings, even if they were stayed on account of the pendency of the criminal case, can be resumed and proceeded with so as to conclude them at an early date, so that if the employee is found not guilty his honour may be vindicated and in case he is found guilty, the administration may get rid of him at the earliest."

35. Similarly the Hon'ble Apex Court in the case of Stanzen Toyotetsu India (P) Ltd. v. Girish V., (2014) 3 SCC 636 has Page 11 reiterated the same view in the paragraph 8 of the aforesaid judgment which reds as under:

8. We have heard the learned counsel for the parties at some length. The only question that falls for determination in the above backdrop is whether the courts below were justified in staying the ongoing disciplinary proceedings pending conclusion of the trial in the criminal case registered and filed against the respondents.

The answer to that question would primarily depend upon whether there is any legal bar to the continuance of the disciplinary proceedings against the employees based on an incident which is also the subject-matter of criminal case against such employees. It would also depend upon the nature of the charges in the criminal case filed against the employees and whether the case involves complicated questions of law and fact. The possibility of prejudice to the employees accused in the criminal case on account of the parallel disciplinary enquiry going ahead is another dimension which will have to be addressed while permitting or staying such disciplinary enquiry proceedings. The law on the subject is fairly well settled for similar issues and has often engaged the attention of this Court in varied fact situations. Although the pronouncements of this Court have stopped short of prescribing any straitjacket formula for application to all cases, the decisions of this Court have identified the broad approach to be adopted in such matters leaving it for the courts concerned to take an appropriate view in the peculiar facts and circumstances of each case that comes up before them. Suffice it to say that there is no short-cut solution to the problem. What is, however, fairly well settled and was not disputed even before us is that there is no legal bar to the conduct of the disciplinary proceedings and a criminal trial simultaneously.

Page 12

36. It is evident from the ratio laid down by the Hon'ble Apex Court that the parameters have already been fixed holding therein that there is no embargo in proceeding simultaneously in the departmental proceeding in course of pendency of the judicial proceeding.

37. It is settled proposition of law that the departmental proceeding and the criminal proceeding are two parallel proceedings having no bearing. However, a guideline has been laid down in the said judgment so as to consider the effect of criminal proceeding and in the departmental proceeding made linked on the proposition of law that if the nature of allegation is grave in nature and there is no likelihood of segregating the intent of allegation then the criminal case and the departmental proceeding is to go parallel.

38. So far as the issue of acquittal in a criminal case having bearing upon the departmental proceeding is concerned, although the Hon'ble Apex Court has been pleased to hold that if on the identically placed facts and circumstances if the delinquent employee has been acquitted in a criminal case said to be honourable acquittal and the departmental proceeding is also based upon the same evidence of the witnesses and the documents then the requirements as under law is that the Page 13 honourable acquittal will have bearing upon the departmental proceeding.

39. Reference in this regard may be made to the judgment as rendered by the Hon'ble Apex court in G.M. Tank v. State of Gujarat & Ors. reported in 2006 (5) SCC 446 at paragraphs 30 and 31 it has been held as under:

"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 8 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 Page 14 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."

40. It is evident that the question of honourable acquittal is based upon the appreciation of facts after going through the factual aspect as was brought to the notice of the learned Trial Court in course of the criminal case as also the report submitted by the Inquiry Officer which is based upon the cogent evidence.

41. This Court, is adverting to the order of acquittal as passed by learned trial court in order to appreciate the factual aspect as to ―whether the acquittal which is taken as ground by the learned Single Judge in quashing and setting aside the order of punishment can be said to be honourable acquittal or not? ―

42. The judgment of acquittal as passed by learned trial court in Sessions Trial no. 588 of 2006 has been appended as a part of the paper book.

43. This court has gone through the said judgment and found therefrom that the victim has not supported the case of prosecution and specifically stated in examination-in-chief that she was not subjected to rape.

44. Further the other witnesses especially the neighbour namely Ganesh Rajak who has been examined as P.W.2 have also Page 15 not supported the case of prosecution as such the judgment of acquittal has been passed.

45. Coming to the final order passed by the disciplinary authority.

46. It needs to refer herein that the consideration of the testimonies of the PW.2 Smt. Manti Devi wife of Ganesh Rajak and PW.3 Ganesh Rajak has been taken note of wherein they have supported the charge as levelled against the delinquent employee, who is respondent herein.

47. The Inquiry Officer, based upon the said evidence, has found the charge proved which having being accepted by the disciplinary authority, the punishment of compulsory retirement has been imposed by way of passing the impugned order dated 27.03.2007.

48. At this juncture it is required to refer herein that in the departmental proceeding the punishment is required to be passed on the basis of preponderance of probability but even for the purpose of coming to the consideration of preponderance of probability there must be some cogent evidence to connect the memorandum of charge with the complicity of the concerned delinquent employee.

Reference in this regard be made to the judgment as rendered by the Hon'ble Apex Court in High Court of Judicature at Page 16 Bombay Vs. Uday Singh and others, reported in (1997) 5 SCC 129, wherein the law has been laid down that in the departmental proceeding the cogent evidence is required to be there for inflicting punishment. For ready reference, paragraph-10 is being referred as under:

"-------- the doctrine of proof beyond doubt has no application. Preponderance of probabilities and some material on record would be necessary to reach a conclusion whether or not the delinquent has committed misconduct-------."

Similarly the Hon'ble Apex Court in the case of State of Karnataka and Anr. vs. Umesh, reported in (2022) 6 SCC 563, wherein, at paragraphs-18 it has been held that mere on probabilities, no punishment can be imposed in the departmental proceeding. For ready reference, the same is being referred as under: -

"18. In the course of the submissions, the respondents placed reliance on the decision in Union of India v. Gyan Chand Chattar [Union of India v. Gyan Chand Chattar, (2009) 12 SCC 78 : (2010) 1 SCC (L&S) 129] . In that case, six charges were framed against the respondent. One of the charges was that he demanded a commission of 1% for paying the railway staff. The enquiry officer found all the six charges proved. The disciplinary authority agreed with those findings and imposed the punishment of reversion to a lower rank. Allowing the petition under Article 226 of the Constitution, the High Court observed that there was no evidence to hold that he was guilty of the charge of bribery since the witnesses only said that the motive/reason for not making the payment could be the expectation of a commission amount. The respondent placed reliance on the following passages from the decision : (SCC pp. 85 & 87, paras 21 & 31) Page 17 "21. Such a serious charge of corruption requires to be proved to the hilt as it brings both civil and criminal consequences upon the employee concerned. He would be liable to be prosecuted and would also be liable to suffer severest penalty awardable in such cases. Therefore, such a grave charge of quasi-criminal nature was required to be proved beyond the shadow of doubt and to the hilt. It cannot be proved on mere probabilities.

49. It needs to refer herein that the victim who happens to be the daughter of the delinquent employee was produced before the learned trial court in the criminal case where she has not supported the prosecution case and specifically stated that she has not been subjected to rape. The relevant paragraph of the trail court order is being quoted as under:

"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.

50. It further needs to refer herein that the memorandum of charge is based upon the preliminary inquiry and after serving the memorandum of charge, the writ petitioner was directed to participate in the inquiry proceeding and, in that course, the disciplinary authority has not produced victim for her Page 18 examination to prove what she has said in the preliminary inquiry which is the basis of allegation as per the memorandum of charge against the delinquent employee.

51. It further appears from the inquiry report that the disciplinary authority has produced two witnesses said to be the neighbours, i.e., Ganesh Rajak who has been examined as P.W.3 and his wife Malti Devi has been examined as P.W.2. The Inquiry Officer has found the charge proved mainly on the basis of the evidence of Ganesh Rajak and Malti Devi.

52. Malti Devi who is the wife of Ganesh Rajak, a washer man has stated that when the victim has gone to her house, she narrated the entire story. Thereafter, the same was disclosed by Malti Devi to her husband who subsequently reported to the authority concerned. The authority has conducted preliminary inquiry in which the statement of the minor has been reported to be recorded.

53. The disciplinary authority on the basis of the evidence of P.W.2 and P.W.3 has found the charge proved against the respondent/writ petitioner which is the basis of imposition of punishment of compulsory retirement.

54. However, it is settled proposition of law that there cannot be any punishment on the basis of the preliminary inquiry report, rather, the preliminary inquiry can only be the basis for framing of Page 19 charge and it is incumbent upon the disciplinary authority to get it proved in course of inquiry proceeding otherwise the entire departmental proceeding along with the memorandum of charge will be vitiated.

55. Reference in this regard is made to the judgment rendered in the case of Nirmala J. Jhala v. State of Gujarat, (2013) 4 SCC 301, the relevant paragraph of the aforesaid judgment are being quoted as under:

42. A Constitution Bench of this Court in Amalendu Ghosh v. North Eastern Railway [AIR 1960 SC 992] , held that the purpose of holding a preliminary inquiry in respect of a particular alleged misconduct is only for the purpose of finding a particular fact and prima facie, to know as to whether the alleged misconduct has been committed and on the basis of the findings recorded in preliminary inquiry, no order of punishment can be passed. It may be used only to take a view as to whether a regular disciplinary proceeding against the delinquent is required to be held.

43. Similarly in Champaklal Chimanlal Shah v. Union of India [AIR 1964 SC 1854] a Constitution Bench of this Court while taking a similar view held that preliminary inquiry should not be confused with regular inquiry. The preliminary inquiry is not governed by the provisions of Article 311(2) of the Constitution of India. Preliminary inquiry may be held ex parte, for it is merely for the satisfaction of the Government though usually for the sake of fairness, an explanation may be sought from the government servant even at such an inquiry.

But at that stage, he has no right to be heard as the inquiry is merely for the satisfaction of the Government as to whether a regular inquiry must be held. The Court further held as under :

(AIR p. 1862, para 12) "12. ... There must therefore be no confusion between the two enquiries and it is only when the government proceeds to hold a departmental enquiry for the purpose of inflicting on the government servant one of the three major punishments indicated in Article 311 that the government servant is entitled to the protection of that article [, nor prior to that]."

(emphasis added) Page 20 (See also Govt. of India v. Tarak Nath Ghosh [(1971) 1 SCC 734 : AIR 1971 SC 823. Ed. : See paras 10 to 14 thereof in SCC where the distinction between a preliminary and regular enquiry has been discussed. Tarak Nath Ghosh has however been overruled on other points in P.R. Nayak v. Union of India, (1972) 1 SCC 332 and T.V. Nataraj v. State of Karnataka, (1994) 2 SCC 32.] .)

44. In Narayan Dattatraya Ramteerthakhar v. State of Maharashtra [(1997) 1 SCC 299 : 1997 SCC (L&S) 152 : AIR 1997 SC 2148] this Court dealt with the issue and held as under:

"... a preliminary inquiry has nothing to do with the enquiry conducted after issue of charge-sheet. The preliminary enquiry is only to find out whether disciplinary enquiry should be initiated against the delinquent. Once regular enquiry is held under the Rules, the preliminary enquiry loses its importance and, whether preliminary enquiry was held strictly in accordance with law or by observing principles of natural justice of (sic) nor, remains of no consequence."

(emphasis added)

45. In view of the above, it is evident that the evidence recorded in preliminary inquiry cannot be used in regular inquiry as the delinquent is not associated with it, and opportunity to cross- examine the persons examined in such inquiry is not given. Using such evidence would be violative of the principles of natural justice.

56. In the aforesaid judgment, the Hon'ble Apex Court has held that there cannot be punishment solely on the basis of the preliminary inquiry and the evidence recorded in preliminary inquiry cannot be used in regular inquiry as the delinquent is not associated with it, and opportunity to cross-examine the persons examined in such inquiry is not given. Using such evidence would be violative of the principles of natural justice.

57. Herein, it is the admitted case of the appellant- respondent, that the victim has not been produced for her examination in course of the inquiry proceeding.

Page 21

58. The learned counsel appearing for the appellants has also admitted by going through the record particularly inquiry report that the victim girl was not brought for her examination or for cross examination. However, he has submitted that the victim was brought for the purpose of taking her statement at the preliminary stage.

59. The question, therefore, is that when the disciplinary authority has recorded the statement of the victim for the purpose of framing of charge at the preliminary stage that is for the preparation of preliminary inquiry then what is the difficulty in producing the victim for taking her statement in course of the inquiry proceeding.

60. In absence of victim thereof, the sole evidence against the delinquent employee, the respondent herein, is the evidence of Malti Devi and Ganesh Rajak and both of them have deposed about commission of physical relationship of sexual assault upon the minor who is the daughter of the respondent.

61. But after going through the order of learned trial court it is evident that victim girl had appeared and has not supported the prosecution case. This court in the backdrop of the aforesaid facts is to assess that ―whether the preponderance of probability is applicable in the facts and circumstances of the case or not.‖ Page 22

62. It has already been discussed in the preceding paragraphs that for the purpose of coming to the conclusion on the basis of the preponderance of probability also some cogent reason is to be there as per the ratio laid down by the Hon'ble Apex Court in case of High Court of Judicature at Bombay Vs. Uday Singh(supra).

63. In the instant case, the aforesaid cogent evidence is lacking completely which is evident from the fact of acquittal of the respondent/writ petitioner in the criminal case, wherein, the victim was examined but she did not support the prosecution case.

64. There is no dispute about the fact that the judgment of conviction in the criminal proceeding have no bearing in the departmental proceeding but if the factual aspect of both the cases are so interlinked then certainly, as per the law laid down by the Hon'ble Apex Court in the case of G.M. Tank v. State of Gujarat & Ors (supra), the same have the bearing upon the outcome of the departmental proceeding.

65. This Court, applying the aforesaid proposition of law in the factual aspect of present case, has found that factual aspect in departmental proceeding as also in the criminal proceeding are identical.

66. The departmental proceeding culminated into the order of punishment of compulsory retirement, which is a major Page 23 punishment under CISF Rule, is based upon the evidence of the girl who has been examined in the preliminary inquiry only. However, justification has been shown that the statement so recorded of the victim in the preliminary inquiry has also been corroborated by Malti Devi and Ganesh Rajak.

67. But the question is that when the victim was examined at the stage of preliminary inquiry what is the difficulty in bringing the victim for her examination before the Inquiry Officer so as to get the charge fully substantiated.

68. This Court, after having discussed the factual aspect and coming back to the order passed by the learned Single Judge, has found that though the learned Single Judge has taken into consideration the issue of acquittal in the criminal case, but, this Court is of the considered view that the basis of the outcome as has been reached by the learned Single Judge cannot be said to be proper in view of the settled position of law that merely because there is acquittal in criminal proceeding, the judgment of order of punishment cannot to be reversed, rather, it is the primary duty of the concerned Court to look into the gravity of the charge and the statement so recorded of the witnesses both in the criminal cases and the departmental proceeding so as to come to the conclusion that the acquittal in the criminal proceeding will have bearing in the departmental proceeding.

Page 24

69. The learned Single Judge has not considered the aforesaid proposition of law. But even accepting the fact there is no consideration but as to whether the outcome which has been reached by the learned Single Judge can be said to suffer from the error.

70. This Court, as per the discussion made hereinabove, is of the view that on this ground the order passed by learned Single Judge cannot be faulted with, particularly due to non-examination of the victim in course of the inquiry, while she has been examined in the course of the criminal proceeding where she has not supported the prosecution case basis upon which the writ petitioner-respondent has been acquitted.

71. This Court, taking into consideration the aforesaid grounds, is of the view that the interference shown by the learned Single Judge in the impugned orders of punishment of compulsory retirement so as also the order of appellate authority and revisional authority, cannot be said to suffer from an error.

72. Accordingly, the instant appeal fails and is dismissed.

73. Pending Interlocutory Application, if any, stands disposed of.

(Sujit Narayan Prasad, J.) (Arun Kumar Rai, J.) N.A.F.R. Umesh-Abhishek/-

Page 25

Unlock Advanced Research with PRISMAI

Jharkhand High Court