Andhra HC (Pre-Telangana)
Inspector General Of Police, Southern ... vs Lnk S.C. Sharma on 30 November, 1995
Equivalent citations: 1996(1)ALT474
Author: B. Sudershan Reddy
Bench: B. Sudershan Reddy
ORDER P.S. Mishra, C.J.
1. Writ Petitioner (S.C. Sharma) was an assistant commandant of Central Reserve Police Force at Hyderabad when he was subjected to an enquiry into the alleged misconduct of committing criminal assault upon a girl child, although, allegedly, the enquiry officer completely exonerated him the Deputy Inspector General of Police, Central Reserve Police Force, Hyderabad (2nd appellant thought otherwise and finding fault with the enquiry ordered for a de novo enquiry and appointed a new enquiry officer. Writ petitioner-respondent (S.C. Sharma) participated in the enquiry which went against him and on the basis of the report of the enquiry, the Deputy Inspector General of Police, C.R.P.F., passed order on 9-12-1992 imposing the punishment of reduction in rank, thus, relegating him to his original appointment as constable. Aggrieved by the order of punishment, Writ petitioner - respondent appealed to the Inspector General of Police, C.R.P.F., (1st appellant). The Inspector General of Police looked into the entire matter, gave notice to the writ petitioner-respondent and after taking into account all materials furnished by the writ petitioner-respondent and on the record held that he committed an act of misconduct under Section 11(1) of the C.R.P.F. Act,1949 and since the said misconduct was prejudicial to the good order and discipline of the Force, enhanced the punishment of reduction in rank and dismissed him from service. Thus, Writ petitioner-respondent filed Writ Petition No. 10112 of 1993 in this Court.
2. A learned single Judge of this Court has found in favour of the petitioner and held that the imposition of punishment of reduction in rank as well as the enhancement ordered by the appellate authority are vitiated but ordered that a minor punishment of withholding of two increments with cumulative effect will meet the ends of justice.
3. Learned single Judge has held for finding against the enquiry that de novo enquiry ordered by the disciplinary authority when he found fault with the earlier enquiry is in the teeth of the doctrine of double jeopardy. He has, in our opinion, committed an error of law in holding so. It is well settled that an enquiry is held to collect that materials and in that enquiry opportunity is given to the delinquent to explain incriminating materials and rebut them if he has any proper explanation or evidence to show that materials incriminating him were not relevant. There is nothing ,like a finding by the enquiry officer on materials to benefit the delinquent except that the disciplinary authority can take notice of such findings. Ultimate decision, however, lies in the hands of the disciplinary authority who is required to take his own decision, of course,after furnishing a copy of the enquiry report to the delinquent and giving him opportunity to make his comments upon the report of the enquiry officer. Article 311 of the Constitution of India protects a member of a civil service of the Union or of a State or of an all India service or holder of a civil post under the Union or a State from dismissal or removal or reduction in rank except after an enquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges and that an authority subordinate to that by which he has appointed cannot dismiss or remove him from service. The appellate authority who has passed the order of dismissal from service is not an authority subordinate to that which had appointed the writ petitioner-respondent. He (the writ Petitioner-respondent participated in the enquiry which the competent authority ordered after he found that the earlier enquiry was vitiated.
4. Reliance is placed on Rule 15 of the Central Civil Services (Classification, Control and Appeal) Rules, 1957 and a judgment of the Supreme Court in K.R. Deb v. Collector, Central Excise, Shillong and it is urged that the disciplinary authority could direct the enquiry officer to conduct further enquiry in respect of the matter but it could not direct a fresh enquiry to be conducted by some other officer.
5. Learned counsel for the appellants has, however, pointed out that the facts of the instant case are substantially different. It was not a case of a further enquiry but a case of a fresh enquiry as the enquiry conducted into the charges previously was found void.
6. Nothing has been shown to us on behalf of the Writ Petitioner-respondent from which it can be inferred that there was any technical infirmity at some stage of the enquiry and a further enquiry was required from that stage at which infirmity had stricken the enquiry. In the absence of any such fact it will be wholly incorrect to presume that the disciplinary authority could not order for a de novo enquiry.
7. It is the rule of prudence, however, which Courts invariably follow that if there is a charge in a court on some facts and materials, the departmental proceedings should not be simultaneously held. This rule is applied mainly for the reason that disclosure of evidence in the departmental proceeding before the criminal charge is concluded by a trial one way or the other, may cause prejudice to the interest of the delinquent who is the accused in the criminal case. This rule, however, cannot take away the right of the disciplinary authority to decide in an appropriate case to give precedence to the disciplinary proceeding particularly when acquittal in the criminal case is of no consequence except that it gives some evidence in favour of the delinquent for being considered by the disciplinary authority. Merely because the disciplinary proceeding has been held during the pendency of the criminal charge it cannot be said that it is vitiated. Our attention, however, has been drawn to the fact that while the proceeding in this Court has been pending the writ petitioner-respondent has been acquitted of the criminal charge by a competent court of sessions. We have given consideration to this aspect of the matter. In the light of the judgment of the Supreme Court in the case of Karam Chand v. Union of India (AIR 1971 SC 1284) and a judgment by one of us (P.S. Mishra. J. as I was then) in Baggiam Doraiswamy v. State of Tamil Nadu,( 1994 (2) L.W. (Crl.) 687) wherein it has been held that the decision of the criminal court is not binding on the civil court, a departmental proceeding in terms of Article 311 of the Constitution of India is in view of a common law action of a civil suit and thus a proceeding which is civil in nature.
8. Writ petitioner-respondent has held a civil post and has been a member of a Force which has been created to protect the rights of law abiding men and women and maintain law and order. He has been charged of criminally assaulting a minor girl child, aged 6 years only. Even though he has escaped the conviction in the regular trial in the court of sessions it is difficult to imagine a person with such a stigma serving a Force to protect people from crime. Materials on which the disciplinary authority decided to reduce in rank were before the appellate authority who has found that retaining such a person in the force is not proper. It is not for the Court to interfere with the punishment. The courts always leave the disciplinary authorities to decide the adequacy of the punishment as they alone know what standard of conduct and discipline is expected from the members of the service. We are satisfied that learned single Judge has committed error of law. The impugned Judgment, for the said reason, is set aside, and the writ petition is dismissed but without costs. The appeal is allowed.