Jharkhand High Court
Himanshu Verma Ex Constable C I S F vs The Union Of India Through Secretary ... on 4 August, 2017
Equivalent citations: 2018 (1) AJR 63, (2018) 1 JCR 668 (JHA)
Author: D.N. Patel
Bench: Ratnaker Bhengra, D.N. Patel
1 L.P.A. No.204 of 2016
IN THE HIGH COURT OF JHARKHAND AT RANCHI
L.P.A. No.204 of 2016
With
I.A. No.3106 of 2017
Himanshu Verma (Ex-Constable C.I.S.F. No.034440197), son of Shri
Sohan Lal Verma, resident of East Amber Taslab, Old Railway Road,
Roorkee, PO- Ganesh Vatika, PS- Kotwali, Roorkee, District - Haridwar
(Uttranchal)
... ... ... ... ... Appellant
Versus
1. The Union of India through Secretary, Ministry of Home Affairs,
New Delhi, P.O. & P.S. - Safdarganj, District - New Delhi
2. The D.G., CI.S.F., 13, Lodhi Road, C.G.O. Complex, PO- C.G.O.
Complex, P.S.- Shastri Nagar, District - New Delhi
3. The Sr. Commandant, C.I.S.F. Unit, B.C.C.L., Dhanbad, PO- Koyla
Nagar, PS- Dhanbad, District - Dhanbad (Jharkhand)
4. The D.I.G., C.I.S.F. Unit, B.C.C.L., Dhanbad PO- Koyla Nagar, PS.-
Dhanbad, District - Dhanbad (Jharkhand)
5. The Inspector Generasl, East Sector, C.I.S.F. Headquarters, P.O. &
P.S. - Boring Road, New Patliputra Colony, District - Patna (Bihar)
... ... ... ... ... ... Respondents
------
CORAM: HON'BLE THE ACTING CHIEF JUSTICE
HON'BLE MR. JUSTICE RATNAKER BHENGRA
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For the Appellants: M/s. Kundan Kr Ambastha, Advocate
For the Respondents: M/s. Binod Singh, C.G.C.
------
th
10/Dated: 04 August, 2017
(Oral order)
Per D.N. Patel, ACJ
1) This Letters Patent Appeal has been preferred by the original
petitioner who had preferred W.P.(S) No.1275 of 2009 which was decided
by the learned Single Judge vide judgment and order dated 16th March,
2016, whereby the order of punishment of removal from the services from
Central Industrial Security Force (herein after referred to as 'CISF' for the
sake of brevity), has been held as valid and, hence, the original petitioner
has preferred the present Letters Patent Appeal.
2 L.P.A. No.204 of 2016
2) Having heard learned counsels for both sides and looking to the
facts and circumstances of the case, it appears that this appellant is the
original petitioner who was working as a Constable in CISF. Thereafter,
several misconducts were committed by this appellant looking to the
charge-sheet. The first charge is about the intoxication during course of
his employment when he was in duty. The second charge is about
outraging the modesty of Smt. Namita Bouri. This was committed during
course of employment i.e. during his duty hours on 13th June, 2007. The
third charge is about that previously also, twice the punishments were
imposed and he has failed to correct himself and has remained
incorrigible. Twice he was punished for intoxication and once for
absentism.
3) Having heard learned counsels for both sides and looking to the
facts and circumstances of the case, it appears that the charge-sheet was
given to this appellant-delinquent. Thereafter, Enquiry Officer was
appointed and during course of departmental enquiry, several witnesses
were examined. It further appears from the facts and circumstances of the
case that the charges levelled against the appellant have been proved on
the basis of the evidence on record during course of departmental
enquiry. Thereafter, again, he was given opportunity of being heard prior
to imposition of the penalty and, ultimately, the disciplinary authority
imposed the punishment of removal from service vide order dated 19th
February, 2008. The said order is at Annexure 2 to the memo of this
Letters Patent Appeal. This order of removal from service has been
passed by Senior Commandant of CISF, Bhakokoli Unit, Dhanbad. Thus,
this appellant-delinquent was given opportunity of being heard. Moreover,
during enquiry also, several witnesses were examined. The report of the
Enquiry Officer is based upon the evidence on record. Even the
disciplinary authority has also given opportunity of being heard to the
appellant-delinquent before imposition of the penalty. Thus, there is no
procedural lacuna in holding the departmental proceedings.
4) It further appears from the facts that after the order passed by the
disciplinary authority dated 19th February, 2008, this appellant has
preferred departmental appeal before the Deputy Inspector General,
CISF, who has dismissed the appeal vide order dated 30th April, 2008.
3 L.P.A. No.204 of 2016
The said order is at Annexure 3 to the memo of this Letters Patent
Appeal. During this appellate proceeding also, the appellant-delinquent
was given adequate opportunity of being heard.
5) Thus, the departmental proceeding is absolutely in consonance
with the law and there is no illegality committed by the respondents in
holding the enquiry and the charges have accordingly been proved. Now,
the only question left out for this Court to decide is about the quantum of
punishment. It appears that this appellant was working in a disciplined
force - CISF. He was on the post of Constable. As on 13th June, 2007,
the first charge is about intoxication during the course of his duty hours. If
this charge is to be read with charge No.3, previously also, twice this
appellant was punished for intoxication. Thus, he has not corrected
himself and has remained incorrigible. It further appears from Charge
No.2 that he has outraged modesty of one Smt. Namita Bouri. This is a
very serious charge which has been proved during course of enquiry.
Looking to these charges and especially when this appellant was working
as Constable in CISF, the quantum of punishment inflicted upon this
appellant cannot be said unreasonably excessive punishment, nor it can
be labelled as unreasonably excessive or shockingly disproportionate.
6) It has been held by Hon'ble Supreme Court in the case State of
U.P. & ors. v. Harendra Kumar [(2004)13 SCC 117], in paragraphs 8
and 9, as under: -
"8. Having regard to the nature of the charge i.e. that the
respondent had consumed liquor on duty, that too on a
duty in relation to terrorist activities and had abused
another constable driver, proved by the evidence which is
not challenged, we fail to understand what more
consideration was required by the disciplinary authority.
This apart, as we have already stated above, bare reading
of the entire order of dismissal clearly shows that there
has been proper application of mind. The disciplinary
authority agreeing with the enquiry officer need not write
a detailed judgment. In this view, the Tribunal committed
4 L.P.A. No.204 of 2016
a serious error in holding that there has been non-
application of mind in passing the order of dismissal. The
Tribunal having found that no prejudice was caused to the
respondent in enquiry proceedings and punishment
imposed was not disproportionate, was not at all justified
in setting aside the order of dismissal. It is unfortunate
that the High Court, as stated above, did not look into the
matter at all in exercising the power of judicial review
and had simply passed a non-speaking order. Looking to
the entire facts and circumstances, we do not find any
good ground to sustain the impugned order affirming the
order of the Tribunal.
9. Having regard to the nature of charge proved and in
view of the finding of disciplinary authority and the
finding of the Tribunal that punishment imposed on the
respondent was not disproportionate, it is not appropriate
to modify the punishment in any way. Hence, the appeal is
entitled to succeed."
(Emphasis supplied)
7) It has also been held by Hon'ble Supreme Court in the case Govt.
of A.P. & ors. v. Mohd. Nasrullah Khan, [(2006)2 SCC 373], in
paragraph 15 as under: -
"15. This takes us to the last submission of the counsel for the
respondent. Learned counsel for the respondent contended that the
offence, said to have been committed, being minor in nature and no
loss being caused to the owner of the property, inasmuch as the
same had been recovered on the spot, lenient punishment may be
awarded in place of dismissal from service. We are unable to
countenance this submission. The gravity of the offence must
necessarily be measured with the nature of the offence. The
respondent was a member of a disciplined force holding the rank of
Head Constable. The duty assigned to him was a "bandobast" duty
5 L.P.A. No.204 of 2016
during the visit of the then President Bill Clinton, who ran a
security risk of the highest grade. His misconduct could have led to
serious security lapse resulting in fatal consequences. But, because
of timely detection by the electrician, PW 4, the lens was recovered
and immediately restored. We entirely agree with the inquiry officer
that the charges are serious in nature, being committed by a
member of a disciplined force, who deserved stringent punishment.
To instil the confidence of the public in the establishment, the only
appropriate punishment in such cases is dismissal from service,
which has been correctly awarded."
(Emphasis supplied)
8) It has further been held by Hon'ble Supreme Court in the case of
Samar Bahadur Singh v. State of Uttar Pradesh & ors., [(2011)9 SCC
94], in paragraph 8 as under: -
"8. Now, the issue is whether punishment awarded to the appellant
is disproportionate to the offence alleged. The appellant belongs to
a disciplinary force and the members of such a force are required
to maintain discipline and to act in a befitting manner in public.
Instead of that, he was found under the influence of liquor and then
indulged himself in an offence. Be that as it may, we are not
inclined to interfere with the satisfaction arrived at by the
disciplinary authority that in the present case punishment of
dismissal from service is called for. The punishment awarded, in
our considered opinion, cannot be said to be shocking to our
conscience and, therefore, the aforesaid punishment awarded does
not call for any interference."
(Emphasis supplied)
9) Counsel for the appellant submitted that there is a honourable
acquittal in Sessions Case No.01 of 2008 vide judgment and order dated
08.09.2008. This submission is not helpful to the appellant-delinquent. Even though he is acquitted honourably from the charges of rape; looking to the nature of charge-sheet, there is a different charge altogether. The first one is of intoxication, second is about outraging modesty of a lady and, the third is that earlier twice he was punished and there is no correction in the behaviour of this appellant. Hence, even though there is 6 L.P.A. No.204 of 2016 an acquittal, the departmental proceedings can always be proceeded against such type of delinquent.
10) It has been held by Hon'ble Supreme Court in the case Capt. M. Paul Anthony v. Bharat Gold Mines Ltd., [(1999) 3 SCC 679] in paragraphs 13, 22 and 35 as under: -
"13. As we shall presently see, there is a consensus of judicial opinion amongst the High Courts whose decisions we do not intend to refer to in this case, and the various pronouncements of this Court, which shall be copiously referred to, on the basic principle that proceedings in a criminal case and the departmental proceedings can proceed simultaneously with a little exception. As we understand, the basis for this proposition is that proceedings in a criminal case and the departmental proceedings operate in distinct and different jurisdictional areas. Whereas in the departmental proceedings, where a charge relating to misconduct is being investigated, the factors operating in the mind of the disciplinary authority may be many such as enforcement of discipline or to investigate the level of integrity of the delinquent or the other staff, the standard of proof required in those proceedings is also different than that required in a criminal case. While in the departmental proceedings the standard of proof is one of preponderance of the probabilities, in a criminal case, the charge has to be proved by the prosecution beyond reasonable doubt. The little exception may be where the departmental proceedings and the criminal case are based on the same set of facts and the evidence in both the proceedings is common without there being a variance.
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 7 L.P.A. No.204 of 2016 is of a grave nature which involves complicated questions of law and fact, it would be desirable to stay the departmental proceedings till the conclusion of the criminal case.
(iii) Whether the nature of a charge in a criminal case is grave and whether complicated questions of fact and law are involved in that case, will depend upon the nature of offence, the nature of the case launched against the employee on the basis of evidence and material collected against him during investigation or as reflected in the charge-sheet.
(iv) The factors mentioned at (ii) and (iii) above cannot be considered in isolation to stay the departmental proceedings but due regard has to be given to the fact that the departmental proceedings cannot be unduly delayed.
(v) If the criminal case does not proceed or its disposal is being unduly delayed, the departmental proceedings, even if they were stayed on account of the pendency of the criminal case, can be resumed and proceeded with so as to conclude them at an early date, so that if the employee is found not guilty his honour may be vindicated and in case he is found guilty, the administration may get rid of him at the earliest.
35. Since the facts and the evidence in both the proceedings, namely, the departmental proceedings and the criminal case were the same without there being any iota of difference, the distinction, which is usually drawn as between the departmental proceedings and the criminal case on the basis of approach and burden of proof, would not be applicable to the instant case.
(Emphasis supplied)
11) It has also been held by Hon'ble Supreme Court in the case of Hindustan Petroleum Corpn. Ltd. v. Sarvesh Berry [(2005) 10 SCC 471] in paragraphs 7 and 8 as under: -
"7. It is a fairly well-settled position in law that on basic principles, proceedings in criminal case and departmental proceedings can go on simultaneously, except in some cases where 8 L.P.A. No.204 of 2016 departmental proceedings and criminal case are based on the same set of facts and the evidence in both the proceedings is common. It is in these cases, the court has to decide, taking into account the special features of the case, whether simultaneous continuance of both would be proper.
8. The purposes of departmental enquiry and of prosecution are two different and distinct aspects. Criminal prosecution is launched for an offence for violation of a duty the offender owes to the society, or for breach of which law has provided that the offender shall make satisfaction to the public. So, crime is an act of commission in violation of law or of omission of public duty. The departmental enquiry is to maintain discipline in the service and efficiency of public service. It would, therefore, be expedient that the disciplinary proceedings are conducted and completed as expeditiously as possible. It is not, therefore, desirable to lay down any guidelines as inflexible rules in which the departmental proceedings may or may not be stayed pending trial in criminal case against the delinquent officer. Each case requires to be considered in the backdrop of its own facts and circumstances. There would be no bar to proceed simultaneously with departmental enquiry and trial of a criminal case unless the charge in the criminal trial is of a grave nature involving complicated questions of fact and law. Offence generally implies infringement of public duty, as distinguished from mere private rights punishable under criminal law. When trial for criminal offence is conducted it should be in accordance with proof of the offence as per the evidence defined under the provisions of the Indian Evidence Act, 1872 (in short "the Evidence Act"). Converse is the case of departmental enquiry. The enquiry in departmental proceedings relates to conduct or breach of duty of the delinquent officer to punish him for his misconduct defined under the relevant statutory rules or law. That the strict standard of proof or applicability of the Evidence Act stands excluded is a settled legal position. Under these circumstances, what is required to be seen is whether the departmental enquiry would seriously prejudice the 9 L.P.A. No.204 of 2016 delinquent in his defence at the trial in a criminal case. It is always a question of fact to be considered in each case depending on its own facts and circumstances."
(Emphasis supplied)
12) It has also been held by Hon'ble Supreme Court in the case of NOIDA Entrepreneurs Assn. v. NOIDA, [(2007) 10 SCC 385], in paragraphs 13 and 16 as under: -
"13. There can be no straitjacket formula as to in which case the departmental proceedings are to be stayed. There may be cases where the trial of the case gets prolonged by the dilatory method adopted by delinquent official. He cannot be permitted to, on one hand, prolong criminal case and at the same time contend that the departmental proceedings should be stayed on the ground that the criminal case is pending.
16. The standard of proof required in departmental proceedings is not the same as required to prove a criminal charge and even if there is an acquittal in the criminal proceedings the same does not bar departmental proceedings. That being so, the order of the State Government deciding not to continue the departmental proceedings is clearly untenable and is quashed. The departmental proceedings shall continue.
(Emphasis supplied)
13) It has further been held by Hon'ble Supreme Court in the case of Indian Overseas Bank v. P. Ganesan, [(2008) 1 SCC 650] in paragraphs 23 and 24 as under: -
23. The High Court, unfortunately, although it noticed some of the binding precedents of the Court failed to apply the law in its proper perspective. The High Court was not correct in its view in concluding that the stay of the departmental proceedings should be granted in the peculiar facts and circumstances of the case without analysing and applying the principle of law evolved in the aforementioned decisions. It, therefore, misdirected itself in law.
What was necessary to be noticed by the High Court was not only existence of identical facts and the evidence in the matter, it was 10 L.P.A. No.204 of 2016 also required to take into consideration the question as to whether the charges levelled against the delinquent officers, both in the criminal case as also the in disciplinary proceedings, were same. Furthermore it was obligatory on the part of the High Court to arrive at a finding that the non-stay of the disciplinary proceedings shall not only prejudice the delinquent officers but the matter also involves a complicated question of law.
24. The standard of proof in a disciplinary proceedings and that in a criminal trial is different. If there are additional charges against the delinquent officers including the charges of damaging the property belonging to the Bank which was not the subject-matter of allegations in a criminal case, the departmental proceedings should not have been stayed.
(Emphasis supplied)
14) In view of the aforesaid facts, reasons and judicial pronouncements, no error has been committed by the respondents in imposition of punishment of removal from service of a constable in CISF and no error has been committed by the learned Single Judge in deciding W.P.(S) No.1275 of 2009 vide judgment and order dated 16th March, 2016. We see no reason to take any other view than what is taken by the learned Single Judge. Therefore, there is no substance in this Letters Patent Appeal and the same is, hereby, dismissed.
15) In view of the final order passed in this Letters Patent Appeal, I.A. No.3106 of 2017 also stands disposed of.
(D. N. Patel, ACJ)
Manoj/ (Ratnaker Bhengra, J)