Orissa High Court
Bansidhar Bariki vs State Of Odisha on 20 November, 2024
ORISSA HIGH COURT: CUTTACK
W.P.(C) No.2265 of 2023
In the matter of an Application under Articles 226 and 227
of the Constitution of India, 1950
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Bansidhar Bariki Aged about 36 years Son of Gopal Bariki Resident of New Bus Stand Bapuji Nagar, P.O./P.S.: Phulbani District: Kandhamal. ... Petitioner.
-VERSUS-
1. State of Odisha Represented through Commissioner-cum-Secretary Home Department, Lok Seva Bhawan Bhubaneswar, District: Khordha.
2. Director General & Inspector General of Police Odisha, Cuttack.
3. Inspector General of Police, Southern Range, Berhampur District: Ganjam.
4. Superintendent of Police, Kandhamal, At/P.O.: Phulbani District: Kandhamal. ... Opposite parties.
W.P.(C) No.2265 of 2023 Page 1 of 76Counsel appeared for the parties:
For the Petitioner : Mr. Srinivas Mohanty, Ms. Kabita Patra, Mr. Sujit Kumar Acharya and Mr. Sushree Ranjan Mohanty, Advocates For the Opposite Parties : Mr. Shantanu Das, Additional Standing Counsel P R E S E N T:
HONOURABLE MR. JUSTICE MURAHARI SRI RAMAN Date of Hearing : 20.11.2024 :: Date of Judgment : 20.11.2024 J UDGMENT MURAHARI SRI RAMAN,J.--
Order in Memo No.4674/SR ED/3259/14-15, dated 13.12.2022 issued by the Inspector General of Police, SR, Berhampur rejecting the appeal in consideration of representation dated 20.07.2022 to show indulgence in the penalty of dismissal from Government service with effect from 05.07.2022 by the Superintendent of Police, Kandhamal vide Order in Memo No.1148/RO, dated 05.07.2022 in connection with departmental proceeding being Kandhamal District Proceeding No.11, dated 03.07.2015, is under challenge before this Court in the present writ W.P.(C) No.2265 of 2023 Page 2 of 76 application filed under Article 226/227 of the Constitution of India with the following prayer(s):
"It is, therefore, prayed that, this Hon‟ble Court would graciously be pleased to admit the writ application, issue rule nisi to the opposite parties calling upon them to show-cause as to why the impugned dismissal order dated 05.07.2022 issued by the Superintendent of Police, Kandhamal (opposite party No.4) and Appellate Order dated 13.12.2022 issued by Inspector General of Police (opposite party No.3) at Annexure-7 & 9 respectively should not be quashed;
And as to why the opposite parties should not be directed to reinstate the petitioner with full back wages from the date of dismissal till actual reinstatement in service with all consequential and financial benefits;
And if the opposite parties fail to show cause or insufficient cause the Rule be made absolute;
And be further pleased to pass such other order/order, as deemed fit and proper under the facts and circumstance of the case;
And for this act of kindness the petitioner as in duty bound shall remain ever pray."
Facts:
2. Shorn off unnecessary details of fact, suffice to narrate culling out from the pleadings that basing on the allegation of Sub-Inspector of Sadar Police Station, Kandhamal, P.S. Case No.68 (SDE No.454), dated W.P.(C) No.2265 of 2023 Page 3 of 76 29.05.2015 was registered under Section 20(b)(ii)(C) and Section 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 ("NDPS", for short), against the petitioner on utterance of his name by one of the accused, namely Guddu @ Rabindra Pradhan, and simultaneously departmental proceeding was also initiated against him with the self-same allegation.
2.1. As the material to be relied on and witnesses to be examined are the same in criminal trial as also in departmental proceeding with the same set of allegation, the petitioner moved the Odisha Administrative Tribunal by invoking Section 19 of the Administrative Tribunals Act, 1985, by filing Original Application, giving rise to registration of O.A. No.4821 (C) of 2018 praying for stay of departmental proceeding till conclusion of the trial by the criminal Court, wherein vide Order dated 29.12.2016 it was directed continuance of the departmental proceeding, but not to pass any final order.
2.2. The petitioner having faced criminal trial was found not guilty by Judgment dated 26.11.2018 in G.R. Case No.59 of 2015 (arising out of Gochhapada Police Station Case No.68, dated 29.05.2015) by the learned Additional Sessions Judge and Special Judge, Phulbani.
W.P.(C) No.2265 of 2023 Page 4 of 762.3. Even though the petitioner was acquitted in the criminal proceeding, on the self-same set of factual matrix, the departmental proceeding in Kandhamal District Proceeding No.11, dated 03.07.2015 was culminated in dismissal from Government service in terms of PMR-836, which the petitioner objects.
2.4. After thorough examination of witnesses and taking into consideration the material on record, when the learned Additional Sessions Judge and Special Judge found the petitioner not guilty on the failure on the part of the prosecution to prove his involvement in the criminal case, there is no scope to find him guilty for gross misconduct and criminal misconduct in terms of Government Servants‟ Conduct Rules, 1959 in the departmental proceeding by the Superintendent of Police, Kandhamal (for brevity, "Disciplinary Authority"). Therefore, questioning the propriety of order of dismissal from Government service, the petitioner having challenged by way of appeal in the form of representation, the Inspector General of Police, SR, Berhampur ("Appellate Authority", for short) confirmed the same. Hence this writ petition.
Rival contentions and submissions:
3. Sri Srinivas Mohanty, learned counsel appearing for the petitioner, submitted that the departmental W.P.(C) No.2265 of 2023 Page 5 of 76 proceeding being Kandhamal District Proceeding No.11 of 2015 has been instituted against the petitioner with the following charge (Annexure-2):
"C/385 Banshi Dhara Barik of Kandhamal (Under Suspension) is charged with gross misconduct and criminal misconduct in that.
While he was posted at Daringbadi PS, commanded to D.P.O. Kandhamal for CCTNS training vide C.C. No.1940758 dated 24.05.2015. On 29.05.2015, S.I. B.P. Rout of Sadar P.S. Phulbani along with ASI/Jugal Kishor Digal, ASI/Anil Ku. Behera, Hav Kesaba Ch. Nayak and WC/378 P. Mallick conducted N.D.P.S. raid in Sadar P.S. area. At Dadaki Chhaka three suspects who were transporting Ganja illegally were seen the police party, running away towards Dadaki line leaving the Ganja loaded vehicle. At that time charged constable reached at that spot identify himself as Bansidhar Barik and he is working as constable in Daringbadi PS, S.I. B.P. Rout detected nearly about 30 Kg of ganja and seized the same with observing all the formalities of N.D.P.S. Act and reported to OIC, Sadar P.S. Phulbani for taking legal action. Basing the report, OIC Sadar PS Phulbani registered a N.D.P.S. Case vide Sadar P.S. Case No.68 dated 29.05.2015 under Section 20(b)(ii)(C)/29 NDPS Act and took up investigation.
In enquiry it revealed that at 4.30 AM on 29.05.2015 two person came to Dadaki Chhaka and detained a TATA MAGIC vehicle bearing Regd. No-OR02BZ9906 (loaded with Ganja) which was coming from Jamjiri side and discussed with the persons inside the vehicle. After 15 minute suddenly hot word exchanged W.P.(C) No.2265 of 2023 Page 6 of 76 among them and charged constable dialled someone in his mobile and shifted 2 Pkts. Of ganja from (vehicle) spot. During course investigation, Guddu @ Rabindra Pradhan (Accd. of Sadar P.S. Case No.68 dated 29.05.2015) utter the name of Bansidhara Barik regarding involvement in Sadar PS Case No.68/15 dated 29.05.2015 under Section 20(b)(ii)(C)/29, NDPS Act and also stated that he along with charged constable and others were smuggling Ganja since long and their operation area was Gochhapada, Phiringia and Phulbani. As the evidence against C/385 Bansidhara Bariki well made out during investigation, so he is arrested and forwarded to the judicial custody and placed under suspension with effect from 31.05.2015 P.M. Being a member of disciplined police force, should be kept away him from any outrageous activities, rather got involvement in criminal case which is violated Govt. Servant Conduct Rule.
He is therefore directed to show cause by 20.7.2015 as to why he shall not be suitably dealt with in the event of the charges being held to be proved against him.
Any representation that he wishes to make in this regard will be duly considered by the authority competent to pass final orders before passing such order."
3.1. Sri Srinivas Mohanty, learned counsel for the petitioner has taken this Court to the genesis of allegation which set the criminal Court into motion to proceed with the trial as reflected in the Judgment W.P.(C) No.2265 of 2023 Page 7 of 76 dated 26.11.2018 of the learned Additional Sessions Judge and Special Judge, Phulbani. It is stated in the Judgment as follows:
"2. The case of the prosecution is that, on 29.05.2015 at about 8.20 A.M. as per the direction of OIC Sadar P.S. the SI Sadar P.S., in reference to SDE No 454 dated 29.05.2015 regarding the illegal transportation of ganja in a TATA Magic Vehicle bearing No OR-02-BZ-9906 which is likely to pass through Dadaki Chhak, he immediately formed a raiding party comprising himself and other police staff and proceeded to the spot to explore the probability to check the veracity of the information received by the OIC and after entering the station diary 0.454 dated 29.05.2015, proceeded to the spot and when, they were at the spot found, the vehicle coming from their opposite direction and 03 persons were there, transporting ganja and seeing them, they ran away leaving the vehicle, but although he chased them failed to apprehended, so they returned back to the spot, rounded up the vehicle, found one cell phone inside the vehicle and at that time the Bansidhara Barik came who is constable of police No.385 at Daringbadi P.S and disclosed that he has seen the suspects leaving the vehicle and running and he could identified one of them as Raj Kumar Choudhury. During inspection of the vehicle, the noticed that 03 Nos of packets kept inside the TATA magic Vehicle bearing No OR-02- BZ-9906 packed with polythene sheet polythene thread and cellotap. On suspicion that, the W.P.(C) No.2265 of 2023 Page 8 of 76 packets might be containing ganja and pungent smell like ganja was coming out from the packets and as it was a public place, he intimated the same to OIC to arrange a weighmen and requested him to send intimation to the superior and to made requisition for an executive Magistrate to remain present during the search and seizure and then he arranged two independent witness to remains present. During the search one of the witness namely Parameswar Nayak, had the weighing machine, he requested him to weight the contraband articles and accordingly, he agreed with it and came with his weighing machine. During checking found his weighing machine correct and works properly. He intimated the OIC not to arrange the weigh man. Then arrival of the Executive Magistrate, 03 packets suspected to be contained ganja, which were kept inside the vehicle were brought down from the vehicle and opened one by one and that it was confirmed ganja from its texture, colour and smell and from his experience. On weighing of packets No.1 it came to 10kgs and 90 gms and without the polythene packets, it came to 9 kgs 990 gm. Similarly the pockets No 2 it became 10kgs 290gm and without packets it comes to 10kgs 190gm and on weighing of packets No.3 it became 10kgs 370gm and without polythene packets it came to 10kgs 270gm and then collected 03 sample, each weighing 50gms, then leveled sealed and seized them and also the vehicle and mobile and handed over the brass seal under proper zimamama to the weighmen and then brought the item and vehicle to the P.S. W.P.(C) No.2265 of 2023 Page 9 of 76 produced the same before the 1.0 and submit the report.
On the above allegation, the case was registered and after due investigation, C.S. was submitted against both of the accused persons and hence, this trial.
3. The plea of the accused is one of complete denial.
The accused Jitendra took the additional plea that, he knows nothing in this connection, falsely he has been implicated. As per the Bansidhara Barik, he knew a secrete thing of Sadar OIC and hence undue influence, he has been Implicated this case. Further he was under training."
3.2. So, he submitted that the charges in criminal case as well as the departmental proceeding are identical in nature and arising out of same set of fact and witnesses. Vide Judgment dated 26th November, 2018, the learned Additional Sessions Judge and Special Judge, Phulbani, on analysis of evidence on record on conclusion of trial, has acquitted the petitioner.
"10. Examined the evidence on record, it is clear that, all occupants, for the vehicle, fled away and so, the articles was never seized, from the exclusive conscious possession of the any of the accused and further, none has stated, any link of the accused person, with the said commission of the offence, i.e., abetment and conspiracy. So far as, the Bansidhara Barik is concerned, he has duly established, the plea of alibi that, W.P.(C) No.2265 of 2023 Page 10 of 76 during the relevant date and time, he was under the training at Phulbani and has witness also. The prosecution also supports that case and according, to the prosecution case, this accused came during the time of seizure, to support the detecting staff to identify the actual culprit, and further, intimate, according to him the intimation, to the Superintendent of Police. So far as, the accused Jitendra is concerned, P.W.-15 has stated that on verification of the CDR, he could link the accused, with this case but surprisingly, he has stated, although, he has examined seven persons, none has stated, regarding the involvement of the accused Jitendra Pradhan, in this case. In the TI Parade, he has never identified and the CDR and not established, the subject matter of the talk between the two persons and hence, I do not find, any relevant of the present accused Jitendra Pradhan, in this case and so, without, further discussion, the irresistible conclusion is that, although, the seizure of the ganja item, is a fact, but the accused persons are not liable for that and accordingly, they are found not guilty for the offence, charged in this case.
11. Accordingly, the accused persons are found not guilty for the commission offence under Section 29 of the NDPS Act and they are acquitted there under under Section 235(1) Cr.P.C. They be set at liberty forthwith and discharged from their bail bond.
Enter it as "insufficient evidence"."W.P.(C) No.2265 of 2023 Page 11 of 76
3.3. Sri Srinivas Mohanty, learned Advocate citing the said judgment of the learned Additional Sessions Judge and Special Judge, Phulbani submitted that the order of dismissal vide Memo dated 05.07.2022 issued by the Disciplinary Authority (Annexure-7) cannot withstand judicial scrutiny inasmuch as the petitioner was found not guilty in the criminal case on failure of the prosecution to establish the complicity of the petitioner with the accused vis-à-vis the offence under the NDPS Act. It is strenuously argued that neither the Order of dismissal vide Memo dated 05.07.2022 (Annexure-7) nor does the Appellate Order vide Memo dated 13.12.2022 (Annexure-9) can, in the circumstances, be treated as legal bearing valid reason.
4. Sri Shantanu Das, learned Additional Standing Counsel vehemently contended that mere acquittal from criminal charges cannot be construed that the departmental proceeding did get frustrated. He submitted that the charges may be identical in both the criminal case as well as the departmental proceeding, but the learned Additional Sessions and Special Judge held the petitioner not guilty on the ground of paucity of evidence.
W.P.(C) No.2265 of 2023 Page 12 of 764.1. Sri Shantanu Das, learned Additional Standing Counsel went to submit that the petitioner has been making attempts to protract the course of disciplinary proceeding. He has demonstrated as follows:
i. Questioning initiation of departmental proceeding the petitioner came up before the Odisha Administrative Tribunal in O.A. No.3020 (C) of 2018, and the same being transferred to this Court on the said Tribunal being abolished was registered as WPC (OAC) No.3020 of 2018 in this Court. While disposing of said petition vide Order dated 17.02.2022, this Court made the following observation:
"4. In view of the acquittal of the petitioner in the criminal proceeding, the petitioner is given liberty to move the concerned disciplinary authority i.e. opposite party No.1 to take a decision with regard to further continuance of the departmental proceeding against the Petitioner. Let the Petitioner make a representation in that regard before the sole opposite party within a period of three weeks hence. If such a representation is filed within the time stipulated hereinabove, the said opposite party is directed to take a lawful decision on the same within a period of two months and communicate the result thereof.W.P.(C) No.2265 of 2023 Page 13 of 76
5. With the aforesaid observation and direction, the Writ Petition stands disposed of."
ii. After such representation was considered, challenging the dismissal from Government service vide Memo dated 15.07.2022 (Annexure-
7), the petitioner again approached this Court in W.P.(C) No.15673 of 2022, wherein this Court declining to interfere with such order of dismissal, directed as follows:
"3. The present writ petition has been filed by the Petitioner with the following prayers:
„It is therefore humbly prayed that this Hon‟ble Court may graciously be pleased to admit the case, call for the records and after hearing both the parties pass the following reliefs;
i) To quash the Order dated 07.05.2022 and Order dated 05.07.2022 under Annexure-6 & 7 respectively.
ii) To quash the departmental proceeding initiated against petitioner under Annexure-2.
iii) To direct the opposite parties to grant all financial and consequential benefits flowing from quashing of charges in departmental proceeding.W.P.(C) No.2265 of 2023 Page 14 of 76
And pass such other order/orders as may be deemed fit and proper for the interest of justice.‟
4. It is submitted by learned counsel for the petitioner that although the petitioner has filed an appeal before the opposite Party No.3 on 20.07.2022 under Annexure-9, but the same is still pending before the said opposite party and the said opposite Party has not taken any decision as of now.
5. Learned counsel for the State submits that he has no objection, if a direction is given to the authority concerned to consider the appeal of the Petitioner in accordance with law within a stipulated period of time
6. Considering the submissions made by the respective parties and without expressing any opinion on the merits of the case, this Court disposes of the writ petition at the stage of admission with a direction to the opposite party No.3 to consider the appeal of the petitioner dated 20.07.2022 under Annexure-9 in accordance with law within a period of eight weeks from the date of production of certified copy of this order. It is needless to mention here that the representation of the petitioner shall be considered and disposed of by passing a speaking and reasoned order. Any decision so taken on the said representation shall be communicated to the petitioner within a period of two weeks thereafter."
W.P.(C) No.2265 of 2023 Page 15 of 76iii. Pursuant thereto, the Appellate Authority concluded the proceeding by affirming the order of dismissal from Government service.
4.2. In essence what was sought to be argued by learned Additional Standing Counsel Sri Shantanu Das is that repeated attempts of the petitioner by approaching Court would not enure to his benefit and when the Disciplinary Authority has assented to the facts enumerated on evidence by the Enquiring Authority and awarded punishment with rational application of mind this Court has scanty scope to entertain this writ petition particularly when the Appellate Authority considered representation/appeal of the petitioner taking into consideration the material available on record.
4.3. He further would submit that in view of decision rendered by the Hon‟ble Supreme Court of India in the case of Karnataka Power Transmission Corpn. Ltd. Vrs. C. Nagaraju, (2019) 10 SCC 367 that "acquittal by a criminal court would not debar an employer from exercising the power to conduct departmental proceedings in accordance with the rules and regulations. The two proceedings, criminal and departmental, are entirely different. They operate in different fields and have different objectives.", the W.P.(C) No.2265 of 2023 Page 16 of 76 prayer, as made in the present case, cannot be acceded to by seeking to quash the punishment of dismissal from Government service. In the disciplinary proceedings, the question was whether the petitioner is guilty of such conduct as would merit his dismissal from service or a lesser punishment, as the case may be, whereas in the criminal proceedings, the question was whether the offences registered against him under the NDPS Act were established. The standard of proof, the mode of inquiry and the rules governing inquiry and trial in both the cases are significantly distinct and different. Therefore, he urged to dismiss the writ petition with cost.
Legal perspective:
5. Before delving into the merit of the contentions and objections of counsel for respective parties, it is felt expedient to take note of certain rulings of the Hon‟ble Supreme Court of India with respect to continuance of disciplinary proceeding even after the delinquent is found acquitted in the criminal case.
5.1. In Karnataka Power Transmission Corpn. Ltd. Vrs. C. Nagaraju, (2019) 10 SCC 367 it has been held as follows:
W.P.(C) No.2265 of 2023 Page 17 of 76"9. Acquittal by a criminal court would not debar an employer from exercising the power to conduct departmental proceedings in accordance with the rules and regulations. The two proceedings, criminal and departmental, are entirely different. They operate in different fields and have different objectives. [Ajit Kumar Nag Vrs. Indian Oil Corpn. Ltd., (2005) 7 SCC 764].
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 PC Act are established, and if established, what sentence should be imposed upon him. The standard of proof, the mode of inquiry and the rules governing inquiry and trial in both the cases are significantly distinct and different. [State of Rajasthan Vrs. B.K. Meena, (1996) 6 SCC 417].
10. As the High Court set aside the order of dismissal on the basis of the judgments of this Court in M. Paul Anthony Vrs. Bharat Gold Mines Ltd., (1999) 3 SCC 679 and G.M. Tank Vrs. State of Gujarat, (2006) 5 SCC 446, it is necessary to examine whether the said judgments are applicable to the facts of this case. Simultaneous continuance of departmental proceedings and proceedings in a criminal case on the same set of facts was the point considered by this Court in M. Paul Anthony Vrs. Bharat Gold Mines Ltd., (1999) 3 SCC 679.
This Court was of the opinion that departmental proceedings and proceedings in W.P.(C) No.2265 of 2023 Page 18 of 76 a criminal case can proceed simultaneously as there is no bar. However, it is desirable to stay departmental inquiry till conclusion of the criminal case if the departmental proceedings and 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. On the facts of the said case, it was found that the criminal case and the departmental proceedings were based on identical set of facts and the evidence before the criminal court and the departmental inquiry was the same. Further, in the said case the departmental inquiry was conducted ex parte. In such circumstances, this Court held that the ex parte departmental proceedings cannot be permitted to stand in view of the acquittal of the delinquent by the criminal court on the same set of facts and evidence. The said judgment is not applicable to the facts of this case. In the present case, the prosecution witnesses turned hostile in the criminal trial against Respondent 1. He was acquitted by the criminal court on the ground that the prosecution could not produce any credible evidence to prove the charge. On the other hand, the complainant and the other witnesses appeared before the inquiry officer and deposed against Respondent 1. The evidence available in the departmental inquiry is completely different from that led by the prosecution in criminal trial.
W.P.(C) No.2265 of 2023 Page 19 of 7611. Reliance was placed by the High Court on a judgment of this Court in G.M. Tank Vrs. State of Gujarat, (2006) 5 SCC 446 whereby the writ petition filed by Respondent 1 was allowed. In the said case, the delinquent officer was charged for an offence punishable under Section 5(1)(e) read with Section 5(2) of the PC Act, 1988. He was honourably acquitted by the criminal court as the prosecution failed to prove the charge. Thereafter, a departmental inquiry was conducted and he was dismissed from service. The order of dismissal was upheld G.M. Tank Vrs. State of Gujarat, 2003 SCC OnLine Guj 487 by the High Court. In the appeal filed by the delinquent officer, this Court was of the opinion that the departmental proceedings and criminal case were based on identical and similar set of facts. The evidence before the criminal court and the departmental proceedings being exactly the same, this Court held that the acquittal of the employee by a criminal court has to be given due weight by the disciplinary authority. On the basis that the evidence in both the criminal trial and departmental inquiry is the same, the order of dismissal of the appellant therein was set aside. As stated earlier, the facts of this case are entirely different. The acquittal of Respondent 1 was due to non-availability of any evidence before the criminal court. The order of dismissal was on the basis of a report of the inquiry officer before whom there was ample evidence against Respondent-1.
W.P.(C) No.2265 of 2023 Page 20 of 7612. In Krishnakali Tea Estate Vrs. Akhil Bharatiya Chah Mazdoor Sangh, (2004) 8 SCC 200 this Court was concerned with the validity of the termination of the services of workmen after acquittal by the criminal court. Dealing with a situation similar to the one in this case, where the acquittal was due to lack of evidence before the criminal court and sufficient evidence was available before the Labour Court, this Court was of the opinion that the judgment in M. Paul Anthony case Vrs. Bharat Gold Mines Ltd., (1999) 3 SCC 679 cannot come to the rescue of the workmen.
13. Having considered the submissions made on behalf of the appellant and Respondent 1, we are of the view that interference with the order of dismissal by the High Court was unwarranted. It is settled law that the acquittal by a criminal court does not preclude a departmental inquiry against the delinquent officer. The disciplinary authority is not bound by the judgment of the criminal court if the evidence that is produced in the departmental inquiry is different from that produced during the criminal trial. The object of a departmental inquiry is to find out whether the delinquent is guilty of misconduct under the conduct rules for the purpose of determining whether he should be continued in service. The standard of proof in a departmental inquiry is not strictly based on the rules of evidence. The order of dismissal which is based on the evidence before the inquiry officer in the disciplinary proceedings, which is different from the W.P.(C) No.2265 of 2023 Page 21 of 76 evidence available to the criminal court, is justified and needed no interference by the High Court."
5.2. In the case of Capt. M. Paul Snthony Vrs. Bharat Gold Mines Ltd., AIR 1999 SC 1416 = (1999) 2 SCR 257 = (1999) 3 SCC 679 the observation of the Hon‟ble Supreme Court of India runs thus: (quoted from SCC) "2. Whether departmental proceedings and proceedings in a criminal case launched on the basis of the same set of facts can be continued simultaneously is a question which crops up perennially in service matters and has once again arisen in this case in the following circumstances.
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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 W.P.(C) No.2265 of 2023 Page 22 of 76 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."
5.3. In Ram Lal Vrs. State of Rajasthan, (2023) 15 SCR 808, the view expressed by the Hon‟ble Supreme Court of India is this:
W.P.(C) No.2265 of 2023 Page 23 of 76"3. The identical allegation in both the proceedings was that the Appellant altered his date of birth from 21.04.1974 to 21.04.1972 in his 8th standard marksheet. It was alleged that this was done to project himself as having attained majority at the time of the recruitment. The appellant denied the charges.
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11. We have examined both the questions independently. We are conscious of the fact that a writ court‟s power to review the order of the Disciplinary Authority is very limited. The scope of enquiry is only to examine whether the decision-making process is legitimate. [See State Bank of India Vrs. A.G.D. Reddy, 2023:INSC:766 = 2023 (11) Scale 530].
As part of that exercise, the courts exercising power of judicial review are entitled to consider whether the findings of the Disciplinary Authority have ignored material evidence and if it so finds, courts are not powerless to interfere. [See United Bank of India Vrs. Biswanath Bhattacharjee, 2022:INSC:117 = (2022) 13 SCC 329]
12. We are also conscious of the fact that mere acquittal by a criminal court will not confer on the employee a right to claim any benefit, including reinstatement. (See Deputy Inspector General of Police and Another Vrs. S. Samuthiram, (2013) 1 SCC 598).W.P.(C) No.2265 of 2023 Page 24 of 76
13. However, if the charges in the departmental enquiry and the criminal court are identical or similar, and if the evidence, witnesses and circumstances are one and the same, then the matter acquires a different dimension. If the court in judicial review concludes that the acquittal in the criminal proceeding was after full consideration of the prosecution evidence and that the prosecution miserably failed to prove the charge, the Court in judicial review can grant redress in certain circumstances. The court will be entitled to exercise its discretion and grant relief, if it concludes that allowing the findings in the disciplinary proceedings to stand will be unjust, unfair and oppressive. Each case will turn on its own facts. [See G.M. Tank Vrs. State of Gujarat & Others, (2006) 5 SCC 446, State Bank of Hyderabad Vrs. P. Kata Rao, (2008) 15 SCC 657 and S. Samuthiram (supra)].
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25. Expressions like "benefit of doubt" and "honorably acquitted", used in judgments are not to be understood as magic incantations. A court of law will not be carried away by the mere use of such terminology. In the present case, the Appellate Judge has recorded that Exh. P-3, the original marksheet carries the date of birth as 21.04.1972 and the same has also been proved by the witnesses examined on behalf of the prosecution. The conclusion that the acquittal in the criminal proceeding was after full consideration of the prosecution evidence and that the prosecution miserably failed to prove the charge can only be W.P.(C) No.2265 of 2023 Page 25 of 76 arrived at after a reading of the judgment in its entirety. The court in judicial review is obliged to examine the substance of the judgment and not go by the form of expression used.
26. We are satisfied that the findings of the appellate judge in the criminal case clearly indicate that the charge against the appellant was not just, "not proved"-- in fact the charge even stood "disproved" by the very prosecution evidence. As held by this Court, a fact is said to be "disproved" when, after considering the matters before it, the court either believes that it does not exist or considers its non- existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it does not exist. A fact is said to be "not proved" when it is neither "proved" nor "disproved" [See Vijayee Singh and Others v. State of U.P. (1990) 3 SCC 190]."
5.4. In State Bank of India Vrs. P. Zadenga, (2023) 12 SCR 740 = 2023:INSC:868 the Hon‟ble Supreme Court of India expressed the view that:
"15. As is evident from the judicial pronouncements referred to above, it may be desirable or, in certain circumstances, advisable for disciplinary proceedings to be stayed when criminal proceedings are ongoing; however, stay is not "a matter of course" and is only to be given after consideration of all factors, for and against.W.P.(C) No.2265 of 2023 Page 26 of 76
16. Keeping in view State Bank of India Vrs. Neelam Nag, (2016) 9 SCC 491 = (2016) 5 SCR 278, the following essentialities may be culled out for the operation of clause 4:
a. At least one year ought to have passed since attempts to get the delinquent employee prosecuted;
b. If, after the passage of such time, no prosecution is initiated, then the department may proceed in accordance with its procedure for disciplinary action;
c. If the prosecution commences later in point of time to the disciplinary proceedings, the latter shall be stayed, but not indefinitely.
Such proceedings are to be stayed only for a reasonable period of time, which is a matter of determination per the circumstances of each case.
17. The next aspect we must consider is whether an acquittal in one of the proceedings entails an acquittal in the other.
17.1 In Nelson Motis Vrs. Union of India, (1992) 4 SCC 711 = (1992) 1 Suppl. SCR 325 it was observed that the question whether departmental proceedings could have continued in the face of acquittal in criminal proceedings had no force as "the nature and scope of a criminal case are very different from those of a departmental disciplinary proceeding and an W.P.(C) No.2265 of 2023 Page 27 of 76 order of acquittal, therefore, cannot conclude the departmental proceeding."
17.2 In Karnataka Power Transmission Corpn. Ltd. v.
C. Nagaraju (2019) 10 SCC 367 it was observed:
*** 17.3 This observation was quoted with profit in the State of Karnataka Vrs. Umesh, (2022) 6 SCC 563
18. It is a matter of record that concerning the incident(s) in question, the FIR was registered sometime in 1996, and disciplinary proceedings were initiated on 8th December 1999. With the completion thereof in the year 2002 and pursuant to further completion of formalities mandatorily required to be complied with, including the principles of natural justice, the delinquent employee was dismissed from service with the passing of the order dated 28th March 2003.
19. An appeal preferred by the delinquent employee was also dismissed in 2004. It is only after the completion of the entire process of disciplinary proceedings that the delinquent employee, in February 2005, seeking reliance upon clause 4 of the MoS, filed a writ petition challenging the action, which, to our mind, was a belated attempt, only to forestall its implementation.
20. Repetitive as it may sound, we reiterate the principle of law enunciated in Neelam Nag (supra) that the completion of trial must be construed as completion "within the reasonable time frame" and that the clause cannot come to the aid of the W.P.(C) No.2265 of 2023 Page 28 of 76 employee "more so", for "prolongation on the trial".
In the instant case, the completion of the trial concerning the crime registered in the year 1996 is nowhere nearing completion.
21. As a principle of law, we have already observed that a departmental proceeding pending criminal trial would not warrant an automatic stay unless, of course, a complicated question of law is involved. Also, acquittal in a criminal case ipso facto would not be tantamount to closure or culmination of proceedings in favour of a delinquent employee."
Discussions:
6. With the delineated perspective of legal position as set forth by the Hon‟ble Supreme Court of India, examining the factual matrix of the present case it may be pertinent to consider that the charges framed in the criminal proceeding and the departmental proceeding are the same. While the criminal case had been instituted on the allegation of the petitioner‟s involvement in the offence under the NDPS Act, on the self-same fact/allegation he was charged for misconduct under the Odisha Government Servants‟ Conduct Rules, 1959.
6.1. As it appears referring to PMR 836 the Disciplinary Authority has dismissed the petitioner from W.P.(C) No.2265 of 2023 Page 29 of 76 Government service by Order dated 05.07.2022 (Annexure-7). The Appellate Authority has also recorded the objection of the petitioner in this regard in his Order dated 13.12.2022 (Annexure-9).
6.2. It noteworthy to extract the provision in PMR-836, which stands as follows:
"836. Effect of nine black marks.--
Nine black marks shall entail reduction in rank or compulsory retirement or removed or dismissal. Whenever any member of the police below the rank of Deputy Superintendent of Police, has been awarded nine black marks, proceedings shall be drawn up against him with a view to awarding any of the above punishments."
6.3. Even if in the appeal-petition, the petitioner has taken a stand that during service career he was never awarded with any black mark, as such the order of dismissal from Government service by the Superintendent of Police by Order dated 05.07.2022 is illegal, illogical and irrational, the same apparently has not been considered by the Appellate Authority in proper perspective. Such a jurisdictional fact touches the very root of the matter. Therefore, on this score alone this Court finds the Appellate Order sustaining W.P.(C) No.2265 of 2023 Page 30 of 76 the Order of the Disciplinary Authority cannot be held to be tenable.
6.4. The Appellate Authority has merely stated such a stand to be typographical error. But he has not specified the correct provision which should have been invoked by the Disciplinary Authority. Therefore, the impugned Order in Annexure-7 as confirmed in Annexure-9 is vulnerable.
7. Reading of the Appellate Order reveals the following reason ascribed for confirming the Order of the Disciplinary Authority:
"The charge, memo of evidence and other connected documents were served on the appellant and asked to explain for his gross misconduct. The preliminary explanation submitted by the appellant was found unsatisfactory. Hence, the instant proceeding was initiated and entrusted to Sri G.S. Dash, OPS, DSP, DHRPC, Kandhamal for enquiry. The E.O observing all the formalities and basing on the evidence brought on record with statements of Prosecution Witness and Defend Witness submitted his reasoned findings holding the appellant guilty of the charges. The Disciplinary Authority agreed with the findings of the EO and asked to submit his explanation/ representation If any, on the findings of Enquiring Officer with a proposed punishment of dismissal from service for his proven delinquency and to treat the suspension period as „as such‟. The appellant submitted his explanation denying the charges. *** W.P.(C) No.2265 of 2023 Page 31 of 76 In the above context, it is to mention that acquittal of a delinquent in a criminal case does not bar the jurisdiction of the disciplinary authority to hold the delinquent guilty of the charge in a departmental proceeding on the basis of the evidences collected during the inquiry.
Further, the conduct of the petitioner in indulging in such nefarious activities being a member of a most disciplined department is highly reprehensible. The charges are very grave in nature for involvement in transportation and illegal trading of ganja is prima facie evidence against the appellant. Even during course of enquiry the appellant failed to explain reasonable cause against such charges which has been conclusively proved in course of enquiry and the quantum of punishment awarded in the proceeding is commensurate with the act of his delinquency. The flimsy plea taken by the delinquent in his representation that he was dismissed from service under PMR 836 which is apparently a typographical error does not any manner going to disprove the charges and thereby absolve him. of the serious charges which have been stands proved against him in the disciplinary enquiry. The points brought out by the appellant in his appeal petitioh is demolished by the documents and other records.
In response to the above orders of the Hon‟ble High Court, I have carefully gone through the representation Dt. 20.07.2022 of the applicant and other connected records. After scrutiny of the records it is found that, there is no procedural flaw. Enquiry has been conducted in accordance with the principles of natural justice. The appellant has not brought out any new W.P.(C) No.2265 of 2023 Page 32 of 76 evidence in his appeal petition dated 20.07.2022 to disprove the charge which would necessitate further intervention with the orders of the Disciplinary Authority.
Therefore, after careful scrutiny of records and application of mind, taking into account the gravity of charges framed in Kandhamal District Proceeding No. 11/2015, I reject the appeal made by the applicant in his representation dated 20.07.2022 being devoid of merit."
7.1. Bare perusal of above order reveals that the Appellate Authority has disposed of the appeal as if empty formality. Without discussing the evidence on record merely stated that he has conceded that the principles of natural justice had been adhered to during enquiry. It is humble opinion of this Court that mere bald statement like this without analysing the evidence on record would tantamount to non-application of mind and the order can be stated to be terse.
7.2. Going by the order of the Disciplinary Authority makes the position clear that the Appellate Authority has simply restated what has been stated in the Order dated 05.07.2022 of the Superintendent of Police. The Disciplinary Authority had simply stated the fact leading to allegation and jumped to conclusion on the basis of findings of the Enquiring Authority as if the enquiry report is reflective of the final decision.
W.P.(C) No.2265 of 2023 Page 33 of 76However, the Disciplinary Authority, discharging quasi judicial function, has not discussed the evidence nor analysed the documents forming part of the Enquiry Report. To render conclusion, the Disciplinary Authority merely stated that "during proceeding enquiry 7 P.Ws. have been examined and 7 documents exhibited". Nonetheless there is nothing brought on record to show that the Disciplinary Authority has considered the nature of evidence vis-à-vis the finding of the trial Court in the criminal proceeding. Rather this Court on perusal of Judgment dated 26.11.2018 of the learned Additional Sessions and Special Judge, Phulbani perceives that the statements of prosecution witnesses could not prove allegation against the present petitioner. The learned trial Court has gone into details of such statements of witnesses, appears to be the same witnesses in the disciplinary proceeding, and came to observe that, "*** nobody whispered a single word, in respect of his involvement in this case. The I.O. has not filed the detail report. There is no TI parade and hence, it is prayed, to acquit the accused. *** Examined the evidence on record, it is clear that, all occupants, for the vehicle, fled away and so, the articles was never seized, from the exclusive conscious possession of the any of the accused and further, none has stated, any link of the accused person, with the W.P.(C) No.2265 of 2023 Page 34 of 76 said commission of the offence, i.e., abetment and conspiracy. So far as, the Bansidhara Barik is concerned, he has duly established, the plea of alibi that, during the relevant date and time, he was under
the training at Phulbani and has witness also."
7.3. There is no rebuttal to such a plea and finding placed on record by the learned Additional Standing Counsel in the present case, nor did the counter affidavit reveal anything of that sort. The criminal trial ended in acquittal of the petitioner from the charges on failure of the prosecution to prove the allegation and there was insufficient evidence. The quasi judicial authorities, i.e., the Superintendent of Police and the Inspector General of Police, have failed to ascribe plausible reason to demonstrate from their respective finding recorded in the orders under Annexure-7 and Annexure-9 that the petitioner has any involvement in the case at hand. This is fortified on the plea of alibi being substantiated in the criminal trial by the petitioner and there being no material available to dispute that he was under training at the relevant point of time. Thus, no prudent person can come to the conclusion on the material fact available on record that the petitioner has nexus with the offence alleged.W.P.(C) No.2265 of 2023 Page 35 of 76
7.4. In T. Takano Vrs. Securities and Exchange Board of India, (2022) 16 SCR 212 it has been laid down as follows:
"39. The following principles emerge from the above discussion:
(i) A quasi-judicial authority has a duty to disclose the material that has been relied upon at the stage of adjudication; and
(ii) An ipse dixit of the authority that it has not relied on certain material would not exempt it of its liability to disclose such material if it is relevant to and has a nexus to the action that is taken by the authority. In all reasonable probability, such material would have influenced the decision reached by the authority.
Thus, the actual test is whether the material that is required to be disclosed is relevant for purpose of adjudication. If it is, then the principles of natural justice require its due disclosure.
***
51. The conclusions are summarised below:
(i) The appellant has a right to disclosure of the material relevant to the proceedings initiated against him. A deviation from the general rule of disclosure of relevant information was made in Natwar Singh Vrs. Director of Enforcement (2010) 13 SCC 255 = (2010) 13 SCR 99 based on the stage of the proceedings. It is sufficient to disclose the materials relied on if it is for the purpose of W.P.(C) No.2265 of 2023 Page 36 of 76 issuing a show cause notice for deciding whether to initiate an inquiry. However, all information that is relevant to the proceedings must be disclosed in adjudication proceedings;
(ii) The Board under Regulation 10 considers the investigation report submitted by the Investigating Authority under Regulation 9, and if it is satisfied with the allegations, it could issue punitive measures under Regulations 11 and 12. Therefore, the investigation report is not merely an internal document. In any event, the language of Regulation 10 makes it clear that the Board forms an opinion regarding the violation of Regulations after considering the investigation report prepared under Regulation 9;
(iii) The disclosure of material serves a three-
fold purpose of decreasing the error in the verdict, protecting the fairness of the proceedings, and enhancing the transparency of the investigatory bodies and judicial institutions;
(iv) A focus on the institutional impact of suppression of material prioritises the process as opposed to the outcome. The direction of the Constitution Bench of this Court in Managing Director, ECIL, Hyderabad Vrs. B. Karunakar, (1993) 4 SCC 727 = (1993) 2 Suppl. SCR 576 that the non-disclosure of relevant information would render the order of punishment void only if the aggrieved person is able to prove that prejudice has been caused to him due to non-disclosure is founded both on the outcome and the process;
W.P.(C) No.2265 of 2023 Page 37 of 76(v) The right to disclosure is not absolute. The disclosure of information may affect other third- party interests and the stability and orderly functioning of the securities market. The respondent should prima facie establish that the disclosure of the report would affect third-party rights and the stability and orderly functioning of the securities market. The onus then shifts to the appellant to prove that the information is necessary to defend his case appropriately; and
(vi) Where some portions of the enquiry report involve information on third-parties or confidential information on the securities market, the respondent cannot for that reason assert a privilege against disclosing any part of the report. The respondents can withhold disclosure of those sections of the report which deal with third-party personal information and strategic information bearing upon the stable and orderly functioning of the securities market."
7.5. In the case of Steel Authority of India Limited Vrs. Sales Tax Officer, (2008) 9 SCC 407, in the context of failure of the Appellate Authority to ascribe reasons, it has been held that:
"12. A bare reading of the order shows complete non-
application of mind. As rightly pointed out by learned counsel for the appellant, this is not the way a statutory appeal is to be disposed of. Various important questions of law were raised. Unfortunately, even they were not dealt by the first appellate authority.W.P.(C) No.2265 of 2023 Page 38 of 76
13. Reason is the heartbeat of every conclusion. It introduces clarity in an order and without the same it becomes lifeless. [See Raj Kishore Jha Vrs. State of Bihar, (2003) 11 SCC 519].
14. Even in respect of administrative orders Lord Denning, M.R. in Breen Vrs. Amalgamated Engg. Union, (1971) 1 All ER 1148, observed:
"The giving of reasons is one of the fundamentals of good administration."
In Alexander Machinery (Dudley) Ltd. Vrs. Crabtree 1974 ICR 120 (NIRC) it was observed:
"Failure to give reasons amounts to denial of justice." "Reasons are live links between the mind of the decision-taker to the controversy in question and the decision or conclusion arrived at."
Reasons substitute subjectivity by objectivity. The emphasis on recording reasons is that if the decision reveals the "inscrutable face of the sphinx", it can, by its silence, render it virtually impossible for the courts to perform their appellate function or exercise the power of judicial review in adjudging the validity of the decision. Right to reason is an indispensable part of a sound judicial system; reasons at least sufficient to indicate an application of mind to the matter before court. Another rationale is that the affected party can know why the decision has gone against him. One of the salutary requirements of natural justice is spelling out reasons for the order made; in other words, a speaking-out. The "inscrutable face of W.P.(C) No.2265 of 2023 Page 39 of 76 the sphinx" is ordinarily incongruous with a judicial or quasi-judicial performance."
7.6. In SAP Labs India Private Limited Vrs. Income Tax Officer, (2023) 4 SCR 430 it has been laid down that:
"Unless perversity in the findings of the Tribunal is pleaded and demonstrated, by placing material on record, no substantial question of law can arise and, therefore, there can be no interference by the High Court. To the extent there can be no dispute between the parties, in view of the settled legal proposition dealing with Sections 260A of the Act and Section 100 of the Code of Civil Procedure, 1908."
7.7. It is in Bombay Oil Industries (P) Ltd. Vrs. Union of India, (1984) 1 SCC 141 observed as follows:
"1. The order of the Government dated November 30, 1982 which is impugned in these proceedings leaves much to be desired. But we do not propose to admit the appeal since, after hearing a longish argument from Shri Anil B. Divan on behalf of the appellant, we are satisfied on the material produced before us and on perusal of the counter- affidavit of the Government that, there were good reasons for passing the impugned order. We must, however, impress upon the Government that while disposing of applications under Sections 21, 22 and 23 of the Monopolies and Restrictive Trade Practices Act, 1969 it must give good reasons in support of its order and not merely state its bald conclusion. The faith of the people in Administrative W.P.(C) No.2265 of 2023 Page 40 of 76 Tribunals can be sustained only if the tribunals act fairly and dispose of the matters before them by well considered orders. The relevant material must be made available to the objectors because, without it, they cannot possibly meet the claim or contentions of the applicants under Sections 21, 22 and 23 of the Monopolies and Restrictive Trade Practices Act, 1969. The refusal of the Government to furnish such material to the objectors can amount to a denial of a reasonable opportunity to the objectors to meet the applicant's case. And denial of a reasonable opportunity to meet the other man‟s case is denial of natural justice.
2. On the question of the need to give reasons in support of the conclusions to which the Government has come, the authorities concerned may, with profit, see the Judgments of this Court in Union of India Vrs. Mohan Lal Capoor, (1973) 2 SCC 836 = AIR 1974 SC 87 : (1974) 1 SCR 797, Siemens Engineering & Manufacturing Co. of India Limited Vrs. Union of India, (1976) 2 SCC 981 = AIR 1976 SC 1785 = 1976 Supp SCR 489 and Uma Charan Vrs. State of M.P., (1981) 4 SCC 102 = AIR 1981 SC 1915 = (1982) 1 SCR 353."
7.8. Where the fact finding authority has acted without any evidence or upon a view of the facts which could not reasonably be entertained or the facts found were such that no person acting judicially and properly instructed as to the relevant law could have found, the Court is entitled to interfere. See, Lalchand Bhagat W.P.(C) No.2265 of 2023 Page 41 of 76 Ambica Ram Vrs. CIT, (1960) 1 SCR 301 = 1959 INSC 83 = (1959) 37 ITR 288 (SC).
7.9. With reference to Omar Salay Mohamed Sait Vrs. CIT, (1959) 37 ITR 151 (SC) the Hon‟ble Andhra Pradesh High Court in Spectra Shares & Scrips Pvt. Ltd. Vrs. CIT, (2013) 354 ITR 35 (AP), has been pleased to make the observation that Income-tax Appellate Tribunal is a fact finding Tribunal and if it arrives at its own conclusions of fact after due consideration of the evidence before it, the Court will not interfere. It is necessary, however, that every fact for and against the assessee must have been considered with due care and the Tribunal must have given its finding in a manner which would clearly indicate what were the questions which arose for determination, what was the evidence pro and contra in regard to each one of them and what were the findings reached on the evidence on record before it. The conclusions reached by the Tribunal should not be coloured by any irrelevant considerations or matters of prejudice and if there are any circumstances which required to be explained by the assessee, he should be given an opportunity of doing so. On no account whatever should the Tribunal base its findings on suspicions, conjectures or surmises nor should it act on no evidence at all or on improper rejection of material and relevant evidence or W.P.(C) No.2265 of 2023 Page 42 of 76 partly on evidence and partly on suspicions, conjectures or surmises and if it does anything of the sort, its findings, even though on questions of fact, will be liable to be set aside by the Court.
7.10. From the orders in Annexure-7 and Annexure-9 it is apparent that the authorities have proceeded on the basis of suspicion. It is oft-said that suspicion, howsoever grave, cannot substitute proof. To impose major penalty, the Disciplinary Authorities cannot deal with the employee casually nor does the Appellate Authority in cavalier fashion while disposing of the appeal. It has been held that the circumstances concerned "must or should" and not "may be"
established. In Kamal Vrs. State (NCT of Delhi), 2023 INSC 678 it has been held that there is not only a grammatical but a legal distinction between "may be proved" and "must be or should be proved". It has been held that the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty.
7.11. The Appellate Authority affirmed the order of punishment awarded by the Disciplinary Authority construing as if the finding of the Enquiring Authority W.P.(C) No.2265 of 2023 Page 43 of 76 is final and binding. First of all the Appellate Authority considered the charges are very grave in nature and without recording any reason therefor by demonstrating the involvement of the petitioner in such activity, but simply (re)stated that the petitioner had involvement in transportation and conducting illegal trading of ganja which is prima facie evidence against the appellant. The very existence of the expression "prima facie" is indicative of fact that there was no conclusive proof available on record against the petitioner to show nexus. The Inspector General of Police must have been aware that he was not considering the prima facie case, rather he was considering the appeal-petition by appreciating the evidence available on the record of the Disciplinary Authority.
7.12. The further reason ascribed by the Appellate Authority was that during course of enquiry the appellant failed to explain reasonable cause against such charges and such factor has been considered as conclusive proof for awarding major penalty. Here also he failed to appreciate that the witnesses of incident in question emanated from the statement of Guddu @ Rabindra Pradhan (Accused of Sadar P.S. Case No.68/2015, dated 29.05.2015 under Section 29(b)(ii)(C)/29 of the NDPS Act) that he uttered the name of Bansidhar W.P.(C) No.2265 of 2023 Page 44 of 76 Bariki (petitioner) and stated that "he along with the appellant and other associates were smuggling ganja since long and their operation area was Gochhapada, Phiringia and Phulbani". Such a statement could not be proved to be correct in the criminal trial. There is no finding recorded by the Disciplinary Authority in the Order dated 05.07.2022 that during the departmental enquiry such a statement was confronted and the petitioner was given opportunity of cross-examination. The Appellate Authority also failed to verify the veracity of such a statement basing on which the departmental proceeding was instituted. As such a statement implicating the petitioner was subject matter of examination in the criminal trial and the learned Additional Session Judge and Special Judge, Phulbani has given a positive finding that the prosecution could not substantiate the allegation/ charge against the petitioner, there cannot be any doubt in mind that no evidence is available on record of the Disciplinary Authority to show that the petitioner was one of the perpetrators of nefarious activity.
7.13. Both the Orders of the quasi judicial authorities, namely the Superintendent of Police and the Inspector General of Police contained in Annexure-7 and Annexure-9 respectively would go to show that W.P.(C) No.2265 of 2023 Page 45 of 76 emphasis was laid on the findings/observations of the Enquiring Authority, as if such findings/observations are sacrosanct and does not require any confrontation. The orders so read would lead to suggest that both the quasi judicial authorities have abdicated their authority to examine the fact and surrendered to the findings of the Enquiring Authority. It is trite that quasi judicial authority vested with the power could not have acted under the „dictation‟ of another authority. As is manifest from the impugned orders, none of the authorities has applied his conscientious mind to fact alleged and evidence available.
7.14. The purpose of judicial review is to ensure that individual receives fair treatment, and not to ensure that the authority, after according fair treatment, reaches on a matter which it is authorised by law to decide for itself a conclusion which is correct in the eyes of the court. When the issue raised in judicial review is whether a decision is vitiated by taking into account irrelevant, or neglecting to take into account of relevant, factors or is so manifestly unreasonable that no reasonable authority, entrusted with the power in question could reasonably have made such a decision, the judicial review of the decision making process includes examination, as a matter of law, of the relevance of the factors. See, State of U.P. Vrs.W.P.(C) No.2265 of 2023 Page 46 of 76
Maharaja Dharmander Prasad Singh, (1989) 1 SCR
176. 7.15. It is, therefore, held that the Appellate Order in Annexure-9 is outcome of non-application of mind and rendered on the basis of non-germane factors.
8. Looking the matter from another angle it transpires that the Disciplinary Authority proceeded on the basis of charge of misconduct against the petitioner under the Odisha Government Servants‟ Conduct Rules, 1959. It is not made clear by neither the Disciplinary Authority nor the Appellate Authority under which of the provisions contained in said Rules, the departmental proceeding has been commenced. On this ground also the order in departmental proceeding cannot be held to be justified. Mere stating that the allegation contained in the police case with respect to smuggling of ganja cannot lead to construe that the petitioner is guilty of misconduct.
8.1. If the factual aspect that the petitioner was acquitted on the ground of insufficient evidence and failure of the prosecution to prove the complicity of the petitioner with the offence complained of in the criminal trial is considered the observations of the learned Additional Sessions Judge and Special Judge may have significant consideration as he has taken W.P.(C) No.2265 of 2023 Page 47 of 76 into consideration the depositions of witnesses on judicial side. Since the facts leading to institution of the criminal case and the departmental proceeding are the same, and the matter relates to offence under the NDPS Act wherein on the basis of one of the accused uttered the name of the petitioner, the departmental authorities presumed the nexus of the petitioner with those of the accused who were involved in the ganja seized. Therefore, this Court believes that the witnesses in the criminal case are also the witnesses of the departmental proceeding. However, the learned trial Court has returned finding that the petitioner could successfully establish plea of alibi. This fact being not controverted by the opposite parties at any point of time, in absence of plausible reason neither in the order of the Disciplinary Authority nor does the order of the Appellate Authority reflects so, the order of dismissal from Government service on the ground of misconduct could not hold water.
8.2. It may be fruitful to have regard to the following observation made in Shashi Kumar Vrs. Uttri Haryana Bijli Vitran Nigam, 2004 SCC OnLine P&H 1159 = ILR (2005) 2 P&H 267 : (2005) 1 SLR 659:
"7. In any event, the terms "honourable acquittal" or "fully exonerated" are unknown in the Code of Criminal Procedure or in Criminal Jurisprudence.W.P.(C) No.2265 of 2023 Page 48 of 76
These terms came up for consideration before a Division Bench of the Madras High Court in the case of Union of India Vrs. Jayaram, AIR 1960 Mad. 325. Rajamannar, C.J. delivering the judgment of the Division Bench observed as under:
„There is no conception like "honourable acquittal"
in Criminal P.C. The onus of establishing the guilt of accused is on the prosecution, and if it fails to establish the guilt beyond reasonable doubt, the accused is entitled to be acquitted.
Clause (b) of Article 193 of the Civil Service Regulations which says that when a Government servant who was under suspension is honourably acquitted, he may be given the full salary to which he would have been entitled if he had not been suspended applies only to the case of departmental inquiry.
Where the servant was suspended because there was a criminal prosecution against him, and he was acquitted therein, and reinstated he is entitled under the general law, to the full pay during the period of his suspension. To such a case Article 193(b) does not apply.‟
8. The aforesaid judgment of the Madras High Court was considered and followed by this Court in the case of Jagmohan Lal Vrs. State of Punjab through Secretary to Punjab Govt. Irrigation, AIR (54) 1967 Pb. & Hy. 422 (Punjab). In that case, on acquittal, the petitioner was reinstated in service, but his period of suspension was not treated as the period W.P.(C) No.2265 of 2023 Page 49 of 76 spent on duty. He had, therefore, filed writ petition under Articles 226/227 of the Constitution of India claiming that he was entitled to full pay and allowances for the period of his suspension. Considering the impact of Rules 7.3, 7.5 and 7.6 of the Punjab Civil Services Rules Vol. I, Part I, it was observed as follows:
(2) *** The interpretation which has been put by the Government on the rule is incorrect. The blame which attached to the petitioner was that there was a criminal charge against him under which he was standing his trial. The moment he is acquitted of the charge, he is acquitted of the blame. In criminal law, the Courts are called upon to decide whether the prosecution has succeeded in bringing home the guilt to the accused. The moment the Court is not satisfied regarding the guilt of the accused, he is acquitted. Whether a person is acquitted after being given a benefit of doubt or for that reasons, the result is that his guilt is not proved. The Code of Criminal Procedure does not contemplate honourable acquittal. The only words known to the Code are „discharged‟ or „acquitted‟.
The effect of a person being discharged or acquitted is the same in the eyes of law. Since, according to the accepted notions of imparting criminal justice, the Court has to be satisfied regarding the guilt of the accused beyond a reasonable doubt, it is generally held that there being a doubt in the mind of the court, the accused is acquitted.
W.P.(C) No.2265 of 2023 Page 50 of 76I am, therefore, quite clear in my mind that the intention underlying Rule 7.5 can be no other except this; the moment the criminal charge on account of which an officer was suspended fails in a court of law, he should be deemed to be acquitted of the blame. Any other interpretation would defeat the very purpose of the rule. It is futile to expect a finding of either honourable acquittal or complete innocence in a judgment of acquittal. The reason is obvious; the criminal courts are not concerned to find the innocence of the accused. They are only concerned to find whether the prosecution has succeeded in proving beyond a reasonable doubt the guilt of the accused.‟
9. The judgement rendered in the case of Union of India Vrs. Jayaram, AIR 1960 Mad. 325 has also been followed by a Division Bench of the Gujarat High Court in the case of Ramsinghji Viraji Rathod, Parmanand Society Vrs. The State of Gujarat, 1971 SLR 743. In the aforesaid case, it has been observed as follows:
„7. *** Clause (b) of Article 193 of the Civil Service Regulations, which was under
consideration before the Madras High Court was substantially similar to our Rule 152, with this difference, that instead of the words "fully exonerated" the words were "honourably acquitted". With respect we are in agreement with the reasoning of Rajamannar, C.J. and in our opinion, it is not open to the authorities concerned to bring in the concept of honourable acquittal or full W.P.(C) No.2265 of 2023 Page 51 of 76 exoneration so far as the judgment of the Criminal Court is concerned. In a criminal trial the accused is only called upon to meet the charge levelled against him and he may meet the charge:
(a) by showing that the prosecution case against him is not true or
(b) that it is not proved beyond reasonable doubt; or
(c) by establishing positively that his defence version is the correct version and the prosecution version is not correct.
In any one of these three cases, if the Court comes to the conclusion that the prosecution has failed to establish its case beyond reasonable doubt or that the prosecution case is not true or that the defence version is correct and is to be preferred as against the prosecution version, the Criminal Court is bound to acquit the accused. The accused is not called upon in every case to establish his complete innocence and it is sufficient for the purposes of criminal trial that he satisfied the Court that the prosecution has not established its case beyond reasonable doubt. Since he is not called upon to prove a positive case, the concept of honourable acquittal or full exoneration can have no place in a criminal trial and it is because of this reasoning that we agree with the W.P.(C) No.2265 of 2023 Page 52 of 76 observations of Rajamannar, C.J. in Jayaram‟s case, AIR 1960 Mad. 325.‟
10. Furthermore a Division Bench of this Court, after examining the relevant rules in the case of Hukam Singh, ukam Singh, Lecturer in Hindi Govt. Senior Secondary School, Indri Vrs. The State of Haryana (amended writ petition No. 18048 of 1999) decided on 23rd November, 2000 has held as under:
„It is abundantly clear that Rule 7.3 of the Rules is the general rule, while in case a person is acquitted, it is specific Rule 7.5 of the Rules that would be attracted. The law is well settled that special Rule will always take precedence over the general rule and consequently, it must follow that under Rule 7.5 of the Rules, referred to above, the petitioner was entitled to the full back wages because as mentioned above, the earlier decisions referred to above have little application in the present case.
In our this view, we are supported by the judgment of this Court in the case of Maha Singh Vrs. State of Haryana, 1993 (8) Services Law Reporter, 188. Same view was expressed by this Court in the case of Lehna Singh Vrs. The State of Haryana, 1993 (3) Recent Services Judgments
199. Keeping in view the aforesaid, we have no hesitation in holding that the impugned order cannot be sustained. In terms of Rule 7.5 of the Rules, on petitioner‟s being acquitted, he would be entitled to full salary and allowances for the period of suspension and dismissal. ***‟. ***"W.P.(C) No.2265 of 2023 Page 53 of 76
8.3. In the present context, it may be worthwhile to quote from Sarita Kumari Vrs. Punjab State Electricity Board, 1994 SCC OnLine P&H 1058:
"11. It is true that Courts may not be able to evolve any hard and fast rule or formula on the basis of which stay of departmental proceedings can or cannot be granted in cases of simultaneous invocation of remedies by an employer. Equally true is the position of law that emerges from various other pronouncements including the judgments referred to supra that there can be no legal bar for simultaneous proceedings being taken against delinquent employee i.e. disciplinary as well as criminal action. Thus, we feel that it may be appropriate to specify certain basic conditions or criteria which the Courts may consider while dealing with the cases specially of the present nature. These are intended to be general guiding factors and are not exhaustive. Thus, the Courts may have to consider the existence of the following conditions in their right perspective to determine and decide whether the stay may or may not be granted in a given case:
(i) The criminal action and the disciplinary proceedings are grounded upon the same set of facts;
(ii) Identical and or similar question(s) arise for determination before the criminal Court of W.P.(C) No.2265 of 2023 Page 54 of 76 competent jurisdiction and the disciplinary enquirying authority;
(iii) The complexity of the merits of the case, that is to say, the case is of grave nature and involves questions of fact or law which are not simple and normally should be decided by a Court of law alone; and
(iv) Whether it will be unfair to the delinquent employee, to permit continuation of simultaneous proceedings because it would prejudically affect the case of the said employee, or the delinquent employee would face serious prejudice in his criminal trial because of continuation of disciplinary proceedings."
8.4. In the instant case, it is not disputed nor can it be disputed by the opposite parties that the cause of action1 for institution of the criminal case and the departmental proceeding is one and the same.
Conclusion:
9. Sri Srinivas Mohanty, learned Advocate for the petitioner cited a decision to have a reference to Arju 1 It is settled law that "cause of action" consists of bundle of facts, which give cause to enforce the legal inquiry for redress in a court of law. In other words, it is a bundle of facts, which taken with the law applicable to them, gives the plaintiff a right to claim relief against the defendant. It must include some act done by the defendant since in the absence of such an act no cause of action would possibly accrue or would arise. [See, South East Asia Shipping Co. Ltd. Vrs. Nav Bharat Enterprises Pvt. Ltd., (1996) 3 SCC 443; Om Prakash Srivastava Vrs. Union of India, (2006) 6 SCC 207].
W.P.(C) No.2265 of 2023 Page 55 of 76Rahman Vrs. State of Assam, 2017 SCC OnLine Gau 331 wherein the following was the observation:
"14. What is important to note herein is that the charges against the petitioner in the departmental proceeding as well as before the learned Trial Court were identical. It was only because of the complaint submitted in the form of an FIR that the departmental authority initiated the departmental proceeding. Law is well settled as regard parallel proceedings that the same is permissible, but however, in a given case when the charge(s) in the departmental proceeding as well as in the criminal proceeding are one and the same, the question of imposing a penalty on the delinquent employee while being discharged/acquitted by a criminal court would not be permissible. The Hon‟ble Apex Court in the case of Capt. M. Paul Anthony Vrs. Bharat Gold Mines Ltd. and another, reported in (1999) 3 SCC 679 = AIR 1991 SC 1416 has held that when the criminal and departmental proceeding are based on identical set of facts, dismissal from service while being acquitted by the criminal Court would not be fair and therefore, the reinstatement of the delinquent employee was directed. The aforesaid ration was also followed by the Apex Court in the case of G.M. Tank Vrs.
State of Gujurat and others, reported in (2006) 5 SCC 446: (AIR 2006 SC 2129)."
9.1. The cryptic order of the Appellate Authority in affirming the order of the Disciplinary Authority W.P.(C) No.2265 of 2023 Page 56 of 76 cannot be countenanced. It is apposite to have regard to the observations made in Ram Gobind Sharma vs. State of Jharkhand and Others, 2016 SCC OnLine Jhar 2401 = 2017 (3) AJR 438, as cited by Sri Srinivas Mohanty, learned Advocate for the petitioner, wherein the following aspects are highlighted:
"5. After hearing learned counsel for the respective parties and on perusal of the record, I am of the considered view that the impugned order of punishment of dismissal from services dated 06.08.2003 being affirmed by the appellate authority dated 22.06.2004 are not legally sustainable, in view of the reasons stated hereinbelow:
(I) Admittedly, the departmental proceeding No. 39 of 1986 was initiated against the petitioner on the ground of criminal case lodged against the petitioner vide Kurtha P.S. Case No. 169 of 1984 under Section 302/34 of the Penal Code, 1860 and under Section 27 of the Indian Arms Act. The petitioner and others were arrayed as accused in the criminal case, but ultimately by the learned Additional Sessions Judge vide order dated 21.08.1998 the petitioner and others were acquitted in the criminal case. Even after about five years from the acquittal of the criminal case, the petitioner has been inflicted with the punishment of dismissal from service, which has been affirmed by the appellate authority. The punishment inflicted W.P.(C) No.2265 of 2023 Page 57 of 76 on the petitioner with the major punishment of dismissal requires reconsideration afresh, in view of the acquittal of the petitioner in the criminal case as evident from Annexure-2 to the writ application, since departmental proceeding was an offshoot of criminal proceeding. Of course, there is no gainsaying of fact, standard of proof in both the proceeding are preponderance of probability and proof beyond reasonable doubt.
(II) So far as order passed by the Appellate Authority is concerned, the same appears to be non-speaking and cryptic. The grounds taken in appeal have not been considered by the appellate authority. The Hon‟ble Apex Court in case of Chairman, Life Insurance Corporation of India Vrs. A. Masilamani reported in 2013 (1) JCR 188 (SC) and (2013) 6 SCC 530, at paragraph 19 has been pleased to hold:
„19. The word "consider" is of great significance. The dictionary meaning of the same is, "to think over", "to regard as", or "deem to be". Hence, there is a clear connotation to the effect that there must be active application of mind. In other words, the term "consider"
postulates consideration of all relevant aspects of a matter. Thus, formation of opinion by the statutory authority should reflect intense application of mind with reference to the material available on record. The order of the W.P.(C) No.2265 of 2023 Page 58 of 76 authority itself should reveal such application of mind. The appellate authority cannot simply adopt the language employed by the disciplinary authority and proceed to affirm its order [Vide Indian Oil Corpn. Ltd. Vrs.
Santosh Kumar (2006) 11 SCC 147 and Bhikhubhai Vithalabhai Patel Vrs. State of Gujarat, (2008) 4 SCC 144].‟ (III) In the case in hand the Appellate Authority has failed to appreciate the relevant provisions of the Police Manual Rules and the order has been passed against the petitioner after acquittal in the criminal case.
6. In view of the reasons stated in the foregoing paragraphs, the impugned order of punishment of dismissal from services dated 06.08.2003 and the order of the appellate authority dated 22.06.2004 being unsustainable are quashed and set aside and the matter is remitted to the respondents to pass the appropriate order on the quantum of punishment, taking into consideration the factum of acquittal of the petitioner in the criminal case within a period of twelve weeks from the date of receipt of a copy of this order."
9.2. In view of the fact-situation discussed in the foregoing paragraphs, as this Court finds from bare perusal of the material available on record that the departmental proceeding has been initiated based on criminal case instituted against the petitioner in connection with G.R Case No.59 of 2015 (arising out of Gochhapada W.P.(C) No.2265 of 2023 Page 59 of 76 P.S. Case No.68 dated 29.05.2015). It is also placed on record that by Judgment dated 26.11.2018, the learned Additional Sessions Judge and Special Judge, Phulbani after discussing and analysing the evidence on record, found the petitioner "not guilty".
9.3. It may require to have reference to Union of India Vrs.
Methu Meda, (2022) 1 SCC 1 wherein it has been held, "12. In view of the above, if the acquittal is directed by the court on consideration of facts and material evidence on record with the finding of false implication or the finding that the guilt had not been proved, accepting the explanation of accused as just, it be treated as honourable acquittal. In other words, if prosecution could not prove the guilt for other reasons and not "honourably" acquitted by the court, it be treated other than "honourable", and proceedings may follow.
13. The expression "honourable acquittal" has been considered in State Vrs. S. Samuthiram, (2013) 1 SCC 598 after considering the judgments in RBI Vrs. Bhopal Singh Panchal, (1994) 1 SCC 541 and R.P. Kapur Vrs. Union of India, AIR 1964 SC 787, State of Assam Vrs. Raghava Rajgopalachari, 1967 SCC OnLine SC 1; this Court observed that the standard of proof required for holding a person guilty by a criminal court and enquiry conducted by way of disciplinary proceeding is entirely different. In a criminal case, the onus of establishing guilt of the accused is on the prosecution, until proved beyond reasonable W.P.(C) No.2265 of 2023 Page 60 of 76 doubt. In case, the prosecution failed to take steps to examine crucial witnesses or the witnesses turned hostile, such acquittal would fall within the purview of giving benefit of doubt and the accused cannot be treated as honourably acquitted by the criminal court. While, in a case of departmental proceedings, the guilt may be proved on the basis of preponderance of probabilities, it is thus observed that acquittal giving benefit of doubt would not automatically lead to reinstatement of candidate unless the rules provide so.
***
20. In view of the aforesaid, it is clear the respondent who wishes to join the police force must be a person of utmost rectitude and have impeccable character and integrity. A person having criminal antecedents would not be fit in this category. The employer is having right to consider the nature of acquittal or decide until he is completely exonerated because even a possibility of his taking to the life of crimes poses a threat to the discipline of the police force. The Standing Order, therefore, has entrusted the task of taking decisions in these matters to the Screening Committee and the decision of the Committee would be final unless mala fide. In State (UT of Chandigarh) Vrs. Pradeep Kumar, (2018) 1 SCC 797, this Court has taken the same view, as reiterated in State Vrs. Mehar Singh, (2013) 7 SCC
685. The same view has again been reiterated by W.P.(C) No.2265 of 2023 Page 61 of 76 this Court in State Vrs. Raj Kumar, (2021) 8 SCC
347."
9.4. In the present case, neither the Disciplinary Authority nor has the Appellate Authority analysed the nature of acquittal. As has already been observed herein above that the learned Additional Sessions Judge and Special Judge has observed that the petitioner could establish alibi. Such material fact has not been disputed by the authorities-- the Superintendent of Police and the Inspector General of Police-- in the impugned Orders under Annexures-7 and 9. The learned trial Court has found the petitioner not guilty on taking into consideration the deposition-- examination and cross-examination-- of the witnesses. It is not the case of the opposite parties that the witnesses in the criminal case and the departmental proceeding are different and it is also not their case that the charges framed in the criminal case and the departmental proceeding emanate from different set of facts and evidence. Perusal of orders of the Disciplinary Authority and the Appellate Authority do not clarify the position that they have taken into consideration the finding of the learned trial Court and brought forth evidence to counter any of the finding recorded by the learned Additional Sessions Judge and Special Judge, Kandhamal. No material is put forth by W.P.(C) No.2265 of 2023 Page 62 of 76 the learned Additional Standing Counsel to suggest that the petitioner had nexus with the offence under the NDPS Act on the principle of preponderance of evidence. Under such premise, this Court does not feel persuaded to accept fallacious argument of the learned Additional Standing Counsel that the nature of evidence in the criminal proceeding being different and distinct from that of the departmental proceeding, the orders in Annexure-7 and Annexure-9 do not deserve to be disturbed.
9.5. It is true that the jurisdiction of the Court in judicial review is limited. Reference may be had to Union of India Vrs. P. Gunasekaran, (2015) 2 SCC 610, wherein it has been laid down that, "12. Despite the well-settled position, it is painfully disturbing to note that the High Court has acted as an appellate authority in the disciplinary proceedings, reappreciating even the evidence before the enquiry officer. The finding on Charge I was accepted by the disciplinary authority and was also endorsed by the Central Administrative Tribunal. In disciplinary proceedings, the High Court is not and cannot act as a second court of first appeal. The High Court, in exercise of its powers under Articles 226/227 of the Constitution of India, shall not venture into reappreciation of the evidence. The High Court can only see whether:
W.P.(C) No.2265 of 2023 Page 63 of 76(a) the enquiry is held by a competent authority;
(b) the enquiry is held according to the procedure prescribed in that behalf;
(c) there is violation of the principles of natural justice in conducting the proceedings;
(d) the authorities have disabled themselves from reaching a fair conclusion by some considerations extraneous to the evidence and merits of the case;
(e) the authorities have allowed themselves to be influenced by irrelevant or extraneous considerations;
(f) the conclusion, on the very face of it, is so wholly arbitrary and capricious that no reasonable person could ever have arrived at such conclusion;
(g) the disciplinary authority had erroneously failed to admit the admissible and material evidence;
(h) the disciplinary authority had erroneously admitted inadmissible evidence which influenced the finding;
(i) the finding of fact is based on no evidence.
13. Under Articles 226/227 of the Constitution of India, the High Court shall not:
(i) reappreciate the evidence;W.P.(C) No.2265 of 2023 Page 64 of 76
(ii) interfere with the conclusions in the enquiry, in case the same has been conducted in accordance with law;
(iii) go into the adequacy of the evidence;
(iv) go into the reliability of the evidence;
(v) interfere, if there be some legal evidence on which findings can be based.
(vi) correct the error of fact however grave it may appear to be;
(vii) go into the proportionality of punishment unless it shocks its conscience.
14. In one of the earliest decisions in State of A.P. Vrs.
S. Sree Rama Rao, AIR 1963 SC 1723, many of the above principles have been discussed and it has been concluded thus :
„7. *** 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. Where there is some evidence, which the authority entrusted with the duty to hold the enquiry has accepted and which evidence may reasonably support the conclusion that the delinquent officer is guilty W.P.(C) No.2265 of 2023 Page 65 of 76 of the charge, it is not the function of the High Court in a petition for a writ under Article 226 to review the evidence and to arrive at an independent finding on the evidence. The High Court may undoubtedly interfere where the departmental authorities have held the proceedings against the delinquent in a manner inconsistent with the rules of natural justice or in violation of the statutory rules prescribing the mode of enquiry or where the authorities have disabled themselves from reaching a fair decision by some considerations extraneous to the evidence and the merits of the case or by allowing themselves to be influenced by irrelevant considerations or where the conclusion on the very face of it is so wholly arbitrary and capricious that no reasonable person could ever have arrived at that conclusion, or on similar grounds. But the departmental authorities are, if the enquiry is otherwise properly held, the sole judges of facts and if there be some legal evidence on which their findings can be based, the adequacy or reliability of that evidence is not a matter which can be permitted to be canvassed before the High Court in a proceeding for a writ under Article 226 of the Constitution.‟
15. In State of A.P. Vrs. Chitra Venkata Rao, (1975) 2 SCC 557 = AIR 1975 SC 2151, the principles have been further discussed at paras 21-24, which read as follows : (SCC pp. 561-63) W.P.(C) No.2265 of 2023 Page 66 of 76 „21. The scope of Article 226 in dealing with departmental inquiries has come up before this Court. Two propositions were laid down by this Court in State of A.P. Vrs. S. Sree Rama Rao, AIR 1963 SC 1723. First, there is no warrant for the view that in considering whether a public officer is guilty of misconduct charged against him, the rule followed in criminal trials that an offence is not established unless proved by evidence beyond reasonable doubt to the satisfaction of the Court must be applied. If that rule be not applied by a domestic tribunal of inquiry the High Court in a petition under Article 226 of the Constitution is not competent to declare the order of the authorities holding a departmental enquiry invalid. The High Court is not a court of appeal under Article 226 over the decision of the authorities holding a departmental enquiry against a public servant. The Court 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. Second, where there is some evidence which the authority entrusted with the duty to hold the enquiry has accepted and which evidence may reasonably support the conclusion that the delinquent officer is guilty of the charge, it is not the function of the High Court to review the evidence and to arrive at an independent finding on the evidence. The High Court may interfere W.P.(C) No.2265 of 2023 Page 67 of 76 where the departmental authorities have held the proceedings against the delinquent in a manner inconsistent with the rules of natural justice or in violation of the statutory rules prescribing the mode of enquiry or where the authorities have disabled themselves from reaching a fair decision by some considerations extraneous to the evidence and the merits of the case or by allowing themselves to be influenced by irrelevant considerations or where the conclusion on the very face of it is so wholly arbitrary and capricious that no reasonable person could ever have arrived at that conclusion. The departmental authorities are, if the enquiry is otherwise properly held, the sole judges of facts and if there is some legal evidence on which their findings can be based, the adequacy or reliability of that evidence is not a matter which can be permitted to be canvassed before the High Court in a proceeding for a writ under Article 226.
22. Again, this Court in Railway Board Vrs.
Niranjan Singh, (1969) 1 SCC 502 = (1969) 3 SCR 548 said that the High Court does not interfere with the conclusion of the disciplinary authority unless the finding is not supported by any evidence or it can be said that no reasonable person could have reached such a finding. In Niranjan Singh case, (1969) 1 SCC 502 = (1969) 3 SCR 548 this Court held that the High Court exceeded W.P.(C) No.2265 of 2023 Page 68 of 76 its powers in interfering with the findings of the disciplinary authority on the charge that the respondent was instrumental in compelling the shutdown of an air compressor at about 8.15 a.m. on 31.05.1956. This Court said that the Enquiry Committee felt that the evidence of two persons that the respondent led a group of strikers and compelled them to close down their compressor could not be accepted at its face value. The General Manager did not agree with the Enquiry Committee on that point. The General Manager accepted the evidence. This Court said that it was open to the General Manager to do so and he was not bound by the conclusion reached by the committee. This Court held that the conclusion reached by the disciplinary authority should prevail and the High Court should not have interfered with the conclusion.
23. The jurisdiction to issue a writ of certiorari under Article 226 is a supervisory jurisdiction. The Court exercises it not as an appellate court. The findings of fact reached by an inferior court or tribunal as a result of the appreciation of evidence are not reopened or questioned in writ proceedings. An error of law which is apparent on the face of the record can be corrected by a writ, but not an error of fact, however grave it may appear to be. In regard to a finding of fact recorded by a tribunal, a writ can be issued if it is shown W.P.(C) No.2265 of 2023 Page 69 of 76 that in recording the said finding, the tribunal had erroneously refused to admit admissible and material evidence, or had erroneously admitted inadmissible evidence which has influenced the impugned finding. Again if a finding of fact is based on no evidence, that would be regarded as an error of law which can be corrected by a writ of certiorari. A finding of fact recorded by the Tribunal cannot be challenged on the ground that the relevant and material evidence adduced before the Tribunal is insufficient or inadequate to sustain a finding. The adequacy or sufficiency of evidence led on a point and the inference of fact to be drawn from the said finding are within the exclusive jurisdiction of the Tribunal. (See Syed Yakoob Vrs. K.S. Radhakrishnan, AIR 1964 SC 477.)
24. The High Court in the present case assessed the entire evidence and came to its own conclusion. The High Court was not justified to do so. Apart from the aspect that the High Court does not correct a finding of fact on the ground that the evidence is not sufficient or adequate, the evidence in the present case which was considered by the Tribunal cannot be scanned by the High Court to justify the conclusion that there is no evidence which would justify the finding of the Tribunal that the respondent did not make the journey. The Tribunal gave reasons for its conclusions. It is not possible for the High Court to say that no reasonable person W.P.(C) No.2265 of 2023 Page 70 of 76 could have arrived at these conclusions. The High Court reviewed the evidence, reassessed the evidence and then rejected the evidence as no evidence. That is precisely what the High Court in exercising jurisdiction to issue a writ of certiorari should not do.‟
16. These principles have been succinctly summed up by the living legend and centenarian V.R. Krishna Iyer, J. in State of Haryana Vrs. Rattan Singh, (1977) 2 SCC 491. To quote the unparalleled and inimitable expressions :
„4. *** in a domestic enquiry the strict and sophisticated rules of evidence under the Indian Evidence Act may not apply. All materials which are logically probative for a prudent mind are permissible. There is no allergy to hearsay evidence provided it has reasonable nexus and credibility. It is true that departmental authorities and administrative tribunals must be careful in evaluating such material and should not glibly swallow what is strictly speaking not relevant under the Indian Evidence Act. For this proposition it is not necessary to cite decisions nor textbooks, although we have been taken through case law and other authorities by counsel on both sides. The essence of a judicial approach is objectivity, exclusion of extraneous materials or considerations and observance of rules of natural justice. Of course, fair play is the basis and if perversity or arbitrariness, bias W.P.(C) No.2265 of 2023 Page 71 of 76 or surrender of independence of judgment vitiate the conclusions reached, such finding, even though of a domestic tribunal, cannot be held good.‟
17. In all the subsequent decisions of this Court up to the latest in Chennai Metropolitan Water Supply and Sewerage Board Vrs. T.T. Murali Babu, (2014) 4 SCC 108, these principles have been consistently followed adding practically nothing more or altering anything."
9.6. Disciplinary proceedings, however, being quasi criminal in nature, there should be some evidence to prove the charge. Although the charges in a departmental proceedings are not required to be proved like a criminal trial, i.e. beyond all reasonable doubt, this Court cannot lose sight of the fact that the Disciplinary Authority and the Appellate Authority perform quasi judicial functions, who upon analysing the documents must arrive at a conclusion that there had been a preponderance of probability to prove the charges on the basis of material on record. While doing so, he cannot take into consideration any irrelevant fact. Such authority cannot refuse to consider the relevant facts and cannot shift the burden of proof. The opposite parties, as is perceived from the impugned orders in Annexure-7 and Annexure-9, have manifestly failed to consider relevant testimony of the witnesses in proper W.P.(C) No.2265 of 2023 Page 72 of 76 perspective. There is lack of independent application of mind. It seems the basis for the conclusion to dismiss the petitioner from Government service was only based on surmises and conjectures.
9.7. This Court on taking holistic view on appraisal of the material on record finds that due to failure of the prosecution the offences charged against the petitioner with respect to his involvement in ganja trade and transportation thereof could not be proved and the on account of same allegation the Disciplinary Authority as well as the Appellate Authority found him guilty of misconduct. It is humble opinion of this Court that when the offences could not be proved in criminal case and the petitioner was found not guilty of offences under the NDPS Act, the quasi judicial authorities could not have found guilty of misconduct on the allegation of self-same offences stated to have been perpetrated in connection with P.S. Case No.68/2015, dated 29.05.2015.
9.8. Pertinent here to have reference to legal perspective of acquittal due to non-substantiation of offences in the criminal trial, as has been discussed in State of West Bengal Vrs. Mitul Kumar Jana, 2023 INSC 754 = (2023) 11 SCR 613. In the said case it is held as follows:
W.P.(C) No.2265 of 2023 Page 73 of 76"12. In view of the discussion made herein above, the opinion given by the Deputy Inspector General of Police, Intelligence Branch, and the stand taken by the Department before the Tribunal and the High Court regarding suppression of material information by the respondent cannot be countenanced. The Tribunal and the High Court have rightly recorded the finding that it is not a case of suppression of material information and we affirm such finding. Simultaneously, the criminal case registered against the respondent were for petty offences. The allegations in the said case were neither of heinous/serious offences, nor related to an offence involving moral turpitude. In the said case, the respondent was honourably acquitted because the prosecution had miserably failed to prove the charges. Hence, in our view, prima facie there appears no impediment to issue the order of appointment in favour of the respondent.
***
15. In view of the discussion made herein above, we confirm the findings of the Tribunal and the High Court on the issue of suppression of material information. As the respondent was not involved in heinous/serious offence or any offence involving moral turpitude, and the fact that in the said criminal case he has been honourably acquitted, therefore, modifying the order of the High Court, we direct the appellant to consider the case of the respondent and issue order of appointment to the post of constable in West Bengal Police Force within a period of four weeks W.P.(C) No.2265 of 2023 Page 74 of 76 from the date of passing of this order. Needless to observe that the authorities shall take note of the discussion made herein above and shall exercise their discretion judiciously in assessing the suitability and antecedents of the prospective candidate. It is made further clear that in the event of issuance of the order of appointment, the respondent would only be entitled to notional benefits including continuity in service and pay fixation at par with other similarly situated persons and he would not be entitled for salary and back wages till the date of his appointment."
9.9. From the above, the underlying principle laid down in State of West Bengal Vrs. Mitul Kumar Jana, 2023 INSC 754 = (2023) 11 SCR 613 can be culled out to the effect that the accused is treated to be honourably acquitted when the prosecution had miserably failed to prove the charges.
9.10. Regard being had to the conspectus of decisions as referred to in foregoing paragraphs vis-à-vis diligent consideration of factual matrix of the case at hand, this Court is of the considered view that decision making process of the Disciplinary Authority as also the Appellate Authority erroneous and untenable. The Order vide Memo dated 13.12.2022 issued by the Inspector General of Police, SR, Berhampur and the W.P.(C) No.2265 of 2023 Page 75 of 76 Order of dismissal vide Memo dated 05.07.2022 are, thus, vulnerable and warrant intervention.
9.11. Accordingly, for the reasons stated hitherto and for the discussions made supra the Order of the Disciplinary Authority, namely, Superintendent of Police, Kandhamal vide Annexure-7 and the Order of the Inspector General of Police confirming said order of the Disciplinary Authority vide Annexure-9 stand set aside.
9.12. Ex consequenti, the writ petition is allowed, and the petitioner, being dismissed in absence of his fault, is entitled to be reinstated with all consequential service and financial benefits. Needless to indicate that the authorities shall do the needful by extending such benefits as expeditiously as possible preferably within a period of one month from the date of receipt of certified copy of this Judgment to be furnished by the petitioner to the authorities.
10. In view of the aforesaid observation and direction, the writ petition stands disposed of.
(MURAHARI SRI RAMAN) JUDGE Signature Not Verified Digitally Signed Signed by: LAXMIKANT MOHAPATRA Designation: Senior Stenographer High Court of Orissa, Cuttack Reason: Authentication Location: High Court of Orissa, Puri The 20th November, 2024//Laxmikant/Suchitra Date: 25-Nov-2024 17:44:39 W.P.(C) No.2265 of 2023 Page 76 of 76