Madhya Pradesh High Court
Devi Charan Tiwari vs The State Of Madhya Pradesh on 10 July, 2017
WP-3898-2014
(DEVI CHARAN TIWARI Vs THE STATE OF MADHYA PRADESH)
10-07-2017
HIGH COURT OF MADHYA PRADESH, PRINCIPAL SEAT
AT JABALPUR
Case No. Writ Petition No.3898/2014
Devi Charan Tiwari and another
Parties Name Vs.
The State of M.P. & Others
Date of Judgment 10/07/17
Bench Constituted Single Bench
Judgment delivered by Justice Sujoy Paul
Whether approved for
Yes/No
reporting
Petitioners:Shri Brijesh
Choubey
Name of counsels for
parties
Respondents: Shri Pushpendra
Yadav,GA Law laid down -
Significant paragraph numbers (Order) (10.07.2017) In this petition filed under Article 226 of the Constitution, petitioners have called in question the legality, validity and propriety of the punishment order dated 2.6.2011 (Annexure P/73) whereby punishment of dismissal from service was inflicted on the petitioners by the Superintendent of Police, Jabalpur. The petitioners are also aggrieved by order dated 23.5.2012 (Annexure P/82) whereby the Deputy Inspector General of Police (DIG) has dismissed the appeal of the petitioners. The order dated 16.7.2012 (Annexure P/85) is also called in question whereby the mercy appeal of the petitioners is rejected.
2. Briefly stated the facts are that the respondents issued a common charge sheet against the petitioners on 12.10.2009 (Annexure P/2). The petitioners submitted their reply and denied the allegations in toto. The department instituted a domestic inquiry against the petitioners by appointing an inquiry officer. Six witnesses on behalf of the prosecution entered the witness box and deposed their statements. Thereafter, the petitioners were given liberty to defend themselves and accordingly certain defense witnesses also entered the witness box and deposed their statements.
3. After recording the evidence in the departmental inquiry, the inquiry officer prepared his report. The said report of the inquiry officer was supplied to the petitioners by the disciplinary authority. The petitioners response was invited by the disciplinary authority by communication dated 7.4.2011 (Annexure P/69). Petitioners were directed to file their response within seven days from the date of inquiry officer's report was supplied to them. Since the petitioners did not submit their reply within seven days aforesaid, another letter dated 20.4.2011 (Annexure P/7) was issued to the petitioners by the Superintendent of Police directing them to file response within three days. In turn, petitioners submitted their detailed representation against the report of the inquiry officer. This response dated 26.4.2011 is filed as Annexure P/71. The disciplinary authority was not satisfied with the stand of the petitioners and accordingly by the impugned order of punishment dated 2.6.2011, petitioners were dismissed from service. Petitioners appeal and mercy appeal could not fetch any result and said appeals were dismissed by order dated 30.9.2011 (Annexure P/81) and the order dated 23.5.2012 (Annexure P/82).
4. Shri Brijesh Choubey, learned counsel for the petitioners fairly submits that the petitioners had earlier filed W.P.No.953/10 wherein they have challenged the action of the department in proceeding with the departmental inquiry when a criminal case founded upon same factual backdrop was pending. It is clear that the said writ petition was not entertained by this court and was dismissed on 29.1.2010 (Annexure P/20). This order clearly shows that this court came to hold that there is no impediment for the disciplinary authority to continue with the departmental inquiry because of pendency of the criminal case.
5. Shri Choubey assailed the disciplinary proceedings by contending; that the complainant preferred a detailed complaint (Annexure P/3) before the Superintendent of Police, Jabalpur. On the basis of this complaint, a preliminary inquiry was conducted and the charge sheet was issued. The complainant Shri Prabhat Garg (P.W.2) entered the witness box and deposed his statement (Annexure P/43). By taking this court to this statement, Shri Choubey submits that the complainant did not identify the petitioners who were present in the departmental inquiry. In other words, it is submitted that the complainant did not support the story of the prosecution. He did not identify the petitioners who were present at the time of such deposition. Reliance is placed on the statement of eye witness Shri Alok Dwivedi (P.W.3) Annexure P/43-A, who deposed that no identification of petitioners had taken place. The delinquent employees/ petitioners who were present in the inquiry were not the same persons against whom complaint was preferred. He further deposed that he never identified any police personal nor any identification had earlier taken place. In addition, it is canvassed that this witness has stated that when his statements were recorded by the police officer (C.S.P. Ranjhi), he had put his signatures but he did not read about the contents of the said document. On the strength of these statements, learned counsel for the petitioner submits that the whole story of the prosecution is like house of cards. The main witnesses/ complainants turned hostile and they did not support their earlier statement. They did not identify the petitioners and, therefore, the petitioners cannot be held guilty by the department.
6. Learned counsel for the petitioners submit that the inquiry officer's findings is based on the criminal case whereas at the time when the inquiry officer's report was prepared, the criminal case was not even decided. He submits that the inquiry officer's report is perverse and it could not have been passed on the basis of pendency of a criminal case.
7. The next contention of Shri Choubey is that the detailed appeals of the petitioners were decided by passing cryptic orders by the appellate authorities.
8. Learned counsel of the petitioner has taken pains to read all the statements of the prosecution witnesses to contend that the petitioners were falsely implicated. They were not present at the time of incident. There is no place namely âPriyadarshaniâ behind Krishi Upaj Mandi, JDA ground. Reliance is placed on the information dated 18.2.2010 (Annexure P/22) obtained under the Right to Information Act,2005.
9. The next contention of Shri Choubey is based on the judgment of the court passed in Cr.C.No.11772/09 dated 18.10.2011 (Annexure P/76). Learned counsel for the petitioner submits that the complainant and Shri Alok Dwivedi (P.W.2) did not identify the petitioners before the criminal court also. The criminal court after recording evidence of Shri P.K.Garg (P.W.1), Alok Dwivedi (P.W.2), L.L.Ahirwar (P.W.3) and Ghanshyam (P.W.4) came to hold that the petitioners were not present at the time of incident. It is submitted that when petitioners are exonerated on merits by the criminal court, there is no justification in upholding the punishment and appellate order. He placed heavy reliance on the order passed by this court in W.P.No.19008/16 (Iqbal Vs. State of M.P) decided on 11.1.2017 and the order passed in W.P.No.4501/2000 (Kumdesh Kumar Tripathi Vs. Union of India) decided on 18.4.2007. Lastly, he relied on a judgment of Supreme Court in South Bengal State Transport Corpn. Vs. Swapan Kumar Mitra and others-2006 AIR SCW-768. On the strength of these authorities, it is argued that once petitioners have been acquitted on merits by the criminal court, the punishment order and the appellate orders cannot sustain judicial scrutiny and said orders are liable to be axed.
10. Per contra, Shri Pushpendra Yadav, GA submits that petitioners have not pointed out any defect in the decision making process and hence, no interference is warranted. He submits that the authority who has identified petitioners before commencement of the disciplinary proceedings entered the witness box and categorically deposed that the complainant had identified the petitioners at the relevant time. Merely because the complainant and Shri Alok Dwivedi have turned hostile at later point of time, it cannot be said that the other piece of evidence is immaterial . He submits that the degree of proof required in the disciplinary proceedings and for criminal case are different. In the departmental inquiry, the respondents have led credible evidence and on the basis of said evidence, petitioners were rightly held guilty by the inquiry officer. The inquiry officer's report is not solely based on pendency of the criminal case. It is based on the documents, statements of witnesses and other material placed before him. Shri Yadav contends that the findings of the inquiry officer are not perverse. In support of this contention learned GA relied on Exhibit P/6, P/7 and P/8. He argued that these documents were duly proved before the inquiry officer. Exhibit P/6 was the statement of Shri Alok Dwivedi whereas Exhibit P/7 is the statement of Subodh,a Sub Inspector. Reliance is placed on Exhibit P/8 which is a report whereby the Superintendent of Police was apprised about the factual basis of the incident. Learned counsel for the State submits that the exercise of identification etc was conducted by involving an officer who was not from the police department. Such independent act of identification cannot be put under shadow on flimsy grounds. Learned Govt. Advocate lastly submits that there is no procedural flaw or perversity in the report of inquiry officer The disciplinary authority and appellate authorities have applied their mind on the points raised by the petitioners.
11. No other point is pressed by learned counsel for the parties.
12. I have heard learned counsel for the parties at length and perused the record.
13. Before dealing with the rival contentions of the parties, it is condign to mention that the scope of interference in the disciplinary proceeding by this Court under Article 226 of the Constitution of India is limited. The subject matter of judicial review is mainly relating to the decision making process and not on the decision. In other words, if departmental inquiry is conducted with serious procedural impropreity which has caused serious prejudice to the delinquent employee, interference can be made [See: 1999 (1) SCC 759 (Apparel Export Promotion Council Vs. A.K. Chopra), 2007 (7) SCC 236 (Bank of India and others Vs. T. Jogram) & 2009 (8) SCC 310 (State of Uttar Pradesh and another Vs. Man Mohan Nath Sinha and another)]. The finding of the Inquiry Officer can be assailed if it is perverse or based on evidence. Similarly, the punishment order can be interfered with only if the punishment inflicted is not commensurate to the misconduct. Putting it differently, the punishment is extremely disproportionate/harsh and pricks the conscience of the Court.
14. As noticed, in the present case, the petitioner has not attacked/assailed the the decision making process. It is not the case of the petitioner that in the departmental inquiry principles of natural justice were not followed. Admittedly, charge-sheet was served on the petitioners. They were permitted to file their reply. The Inquiry Officer was appointed who gave full ,reasonable and sufficient opportunity of defence to the petitioners. The prosecution witnesses who entered the witness box and deposed their statement were permitted to be cross-examined by the petitioners. The Inquiry Officer prepared a detailed report.
15. The grievance of the petitioners is that the findings of the Inquiry Officer which were accepted by the disciplinary and appellate authorities is bad in law, inasmuch as the Inquiry Officer has failed to appreciate that complainant and his companion did not identify the petitioners in the domestic inquiry. Second limb of the argument is that for similar set of charges, the petitioners were exonerated by criminal Court on merits. These point requires serious consider. Pausing here for a moment, it is also required to remember that this Court in exercise of power under Article 226 of the Constitution of India is not required to act as an appellate authority to re-appreciate or re-weigh the evidence. It is to be seen whether the case of the department is based on no evidence. The judicial review is meant to ensure that the delinquent employee has received fair treatment and not to ensure that the conclusion which the authority has reached is necessarily correct in the eye of the Court. If the findings are based on some evidence, the interference is impressible.
16. In the departmental inquiry, the complainant Prabhat Kumar Garg (PW-2) deposed (Annexure-P/43) that two police personnel came and in their presence Pandit on the tip of a knife snatched Rs.50,000/- from him. The police personnel threatened him and left the place with the said Pandit who snatched the money. It is important to note here that he deposed that when he informed about the said incident to the police station, the police personnel were identified and his signature were obtained by the police officer on such document relating to identification of the said two persons/petittioners. However, in the last para of his statement, he declined to identify the police personnel present in the inquiry. PW-2 in his cross-examination admitted that he had seen the identification memo which was prepared by the Executive Magistrate while identifying the said police personnel.
17. P.W.-3 â Alok Dwivedi (companion of complainant) also deposed in the inquiry that one Pandit on the tip of knife snatched Rs.50,000/- from Prabhat Kumar Garg and police personnel supported him. However, this witness deposed that no identification had taken place and he refused to identify the said police personnel present in the inquiry. During cross- examination, this witness admitted that in the earlier identification documents/statements, he put his signature but contended that he did not read it while signing it.
18. P.W.-4 is Sub Inspector, namely, Subodh Sharma. He deposed that Executive Magistrate/Tahasildar â Shri Ahirwar conducted the identification test and complainant had identified the delinquent employees/petitioners. Shri Guruprasad Parasar -P.W.-5 (City Superintendent of Police) stated in the inquiry that the identification was done in the presence of the Executive Magistrate and present petitioners were identified by the complainants. Shri L.L. Ahirwar â P.W.-6 (Executive Magistrate/Tahasildar) deposed his statement and categorically stated that during identification, the complainant identified the present petitioners. He has proved the relevant exhibit which is identification memo.
19. The Inquiry Officer considered the evidence recorded in the inquiry and gave a finding that the allegation that Rs.50,000/- were snatched by Pandit with the help and presence of police personnel is established. He placed reliance on the statement of Shri Guruprasad Parasar (CSP), Sub-Inspector -Shri Subodh Sharma and Shri L.L. Ahirwar. He has also taken into account the fact that complainant and his companion have turned hostile and refused to identify the delinquent employees during the domestic inquiry. However, he placed reliance on the identification memo which was duly supported by statement of Shri Guruprasad Parasar (CSP) and the Executive Magistrate. On the basis of evidence and documents produced in the inquiry opined that the charges are established. No doubt, in concluding portion, he had mentioned that apart from evidence available in the departmental inquiry, the delinquent employees are also facing criminal case. However, in my view, if some credible evidence is available against the petitioners mere pendency of criminal case or subsequent acquittal of petitioners in criminal case will not make much difference. This point will be dealt with in extenso in later portion of this order. A plain reading of inquiry officer's report shows that it is not solely based on pendency of criminal case. Indeed, it is mainly based on the evidence so recorded during the enquiry.
20. The Disciplinary Authority considered the reply of the petitioners to the IO's report and passed a detailed order on 02.06.2011. The petitioners were dismissed from service. The petitioners' appeal was considered by the Appellate Authority by order dated 29.09.2011. The relevant portion of this order reads as under:
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21. The findings given by learned Appellate Authority shows that the Appellate Authority found that the identification memo is duly proved and there is no reason to disbelieve it.
She further opined that although Prabhat Kumar Garg and Alok Dwivedi refused to identify the petitioners during inquiry, in their complaint, presence of two police personnel and deails of their conduct is duly mentioned. It is noted that Prabhat Kumar Garg during identification, identified the delinquent employees and such identification report is duly proved by the prosecution by leading credible evidence. It is noteworthy that the statements of Prabhat Kumar Garg and Alok Dwivedi are in variance. Prabhat Kumar Garg admitted that an identification had taken place wherein he identified the police personnel and put signature on identification memo whereas Alok Dwivedi denied any such identification. Yet Alok Dwivedi during cross-examination admitted that he had signed the earlier statement recorded by the police personnel. A conjoint reading of statements of Prabhat Kumar Garg and Alok Tiwari shows that it is proved that an incident of snatching of money had taken place wherein two police personnel were involved. The presence of police personnel was established through identification and by identification memo. The identification was done by an Executive Magistrate who is not an officer of the Police Department. Thus, in my opinion, it is not a case of no evidence. The credible evidence against the petitioners' involvement is available and Inquiry Officer, Disciplinary and Appellate Authorities have rightly taken the same into account.
22. The questions therefore, whether the petitioners can be held guilty on the basis of some evidence and whether departmental punishment is required to be interfered with on the basis of judgement of acquittal ? This point is no more res integra. In B.C. Chaturvedi Vs. Union of India, (1995) 6 SCC 749, the Supreme Court has held as under:
â12. Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. Power of judicial review is meant to ensure that the individual receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in the eye of the court. When an inquiry is conducted on charges of misconduct by a public servant, the Court/Tribunal is concerned to determine whether the inquiry was held by a competent officer or whether rules of natural justice are complied with. Whether the findings or conclusions are based on some evidence, the authority entrusted with the power to hold inquiry has jurisdiction, power and authority to reach a finding of fact or conclusion. But that finding must be based on some evidence. Neither the technical rules of Evidence Act nor of proof of fact or evidence as defined therein, apply to disciplinary proceeding. When the authority accepts that evidence and conclusion receives support therefrom, the disciplinary authority is entitled to hold that the delinquent officer is guilty of the charge. The Court/Tribunal in its power of judicial review does not act as appellate authority to reappreciate the evidence and to arrive at its own independent findings on the evidence. The Court/Tribunal may interfere where the authority held the proceedings against the delinquent officer in a manner inconsistent with the rules of natural justice or in violation of statutory rules prescribing the mode of inquiry or where the conclusion or finding reached by the disciplinary authority is based on no evidence. If the conclusion or finding be such as no reasonable person would have ever reached, the Court/Tribunal may interfere with the conclusion or the finding, and mould the relief so as to make it appropriate to the facts of each case.â (emphasis supplied)
23. In Bank of India Vs. Degala Suryanarayana (1999) 5 SCC 762, it is held by the Apex Court as under:
â11. Strict rules of evidence are not applicable to departmental enquiry proceedings. The only requirement of law is that the allegation against the delinquent officer must be established by such evidence acting upon which a reasonable person acting reasonably and with objectivity may arrive at a finding upholding the gravamen of the charge against the delinquent officer. Mere conjecture or surmises cannot sustain the finding of guilt even in departmental enquiry proceedings. The court exercising the jurisdiction of judicial review would not interfere with the findings of fact arrived at in the departmental enquiry proceedings excepting in a case of mala fides or perversity i.e. where there is no evidence to support a finding or where a finding is such that no man acting reasonably and with objectivity could have arrived at that finding. The court cannot embark upon reappreciating the evidence or weighing the same like an appellate authority. So long as there is some evidence to support the conclusion arrived at by the departmental authority, the same has to be sustained. In Union of India v. H.C. Goel the Constitution Bench has held:
âThe High Court can and must enquire whether there is any evidence at all in support of the impugned conclusion. In other words, if the whole of the evidence led in the enquiry is accepted as true, does the conclusion follow that the charge in question is proved against the respondent? This approach will avoid weighing the evidence. It will take the evidence as it stands and only examine whether on that evidence legally the impugned conclusion follows or not.â
24. In Lalit Popli Vs. Canara Bank, (2003) 3 SCC 583, Supreme Court has held as under:
â16. It is fairly well settled that the approach and objective in criminal proceedings and the disciplinary proceedings are altogether distinct and different. In the disciplinary proceedings the preliminary question is whether the employee is guilty of such conduct as would merit action against him, whereas in criminal proceedings the question is whether the offences registered against him are established and if established what sentence should be imposed upon him. The standard of proof, the mode of enquiry and the rules governing the enquiry and trial are conceptually different. (See State of Rajasthan v. B.K. Meena.) In case of disciplinary enquiry the technical rules of evidence have no application. The doctrine of âproof beyond doubtâ has no application. Preponderance of probabilities and some material on record are necessary to arrive at the conclusion whether or not the delinquent has committed misconduct.
17. While exercising jurisdiction under Article 226 of the Constitution the High Court does not act as an appellate authority. Its jurisdiction is circumscribed by limits of judicial review to correct errors of law or procedural errors leading to manifest injustice or violation of principles of natural justice. Judicial review is not akin to adjudication of the case on merits as an appellate authority.
18. In B.C. Chaturvedi v. Union of India the scope of judicial review was indicated by stating that review by the court is of decision-making process and where the findings of the disciplinary authority are based on some evidence, the court or the tribunal cannot reappreciate the evidence and substitute its own finding.
19. As observed in R.S. Saini v. State of Punjab in paras 16 and 17 the scope of interference is rather limited and has to be exercised within the circumscribed limits. It was noted as follows:
16. Before adverting to the first contention of the appellant regarding want of material to establish the charge, and of non-application of mind, we will have to bear in mind the rule that the court while exercising writ jurisdiction will not reverse a finding of the inquiring authority on the ground that the evidence adduced before it is insufficient. If there is some evidence to reasonably support the conclusion of the inquiring authority, it is not the function of the court to review the evidence and to arrive at its own independent finding.
The inquiring authority is the sole judge of the fact so long as there is some legal evidence to substantiate the finding and the adequacy or reliability of the evidence is not a matter which can be permitted to be canvassed before the court in writ proceedings.
17. A narration of the charges and the reasons of the inquiring authority for accepting the charges, as seen from the records, shows that the inquiring authority has based its conclusions on materials available on record after considering the defence put forth by the appellant and these decisions, in our opinion, have been taken in a reasonable manner and objectively. The conclusion arrived at by the inquiring authority cannot be termed as either being perverse or not based on any material nor is it a case where there has been any non-application of mind on the part of the inquiring authority. Likewise, the High Court has looked into the material based on which the enquiry officer has come to the conclusion, within the limited scope available to it under Article 226 of the Constitution and we do not find any fault with the findings of the High Court in this regard.â [Emphasis Supplied]
25. In M.V. Bijlani Vs. Union of India, (2006) 5 SCC 88, Supreme Court opined as under:
â25. It is true that the jurisdiction of the court in judicial review is limited. Disciplinary proceedings, however, being quasi-criminal in nature, there should be some evidence to prove the charge. Although the charges in a departmental proceeding are not required to be proved like a criminal trial i.e. beyond all reasonable doubt, we cannot lose sight of the fact that the enquiry officer performs a quasi-judicial function, 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 materials on record. While doing so, he cannot take into consideration any irrelevant fact. He cannot refuse to consider the relevant facts. He cannot shift the burden of proof. He cannot reject the relevant testimony of the witnesses only on the basis of surmises and conjectures. He cannot enquire into the allegations with which the delinquent officer had not been charged with.â [Emphasis Supplied]
26. As per the principles laid down in the aforesaid cases, it is clear that interference can be made against the findings of Inquiry Officer and other authorities, provided findings are perverse or it is a case of no evidence. If there is some evidence to support the conclusion of Inquiring Authority, no interference can be made. Adequacy of evidence cannot be subject matter of judicial review.
27. The another ancillary issue is : whether acquittal from criminal case will mechanically absolve/exonerate the petitioners from departmental punishment. In the present case, as noticed, the punishment imposed on the petitioners is not based on the conclusion of the criminal case. It is based on the findings recorded in the departmental inquiry which is based on the depositions of witnesses in the departmental inquiry. The standard of proof required in the departmental inquiry and in the criminal case are different. It is profitable to refer to certain judgments of Supreme Court on this aspect.
28. In Union of India Vs. Sardar Bahadur, (1972) SCC 618, the Supreme Court has held as under:
â15. A finding cannot be characterised as perverse or unsupported by any relevant materials if it is a reasonable inference from proved facts. Now what are the proved facts: Nand Kumar as representative of Ram Sarup Mam Chand and Mam Chand and Company of Calcutta filed five applications for licences to set-up steel re-rolling mills on 14th June, 1956. On 25th June, 1956, a cheque drawn in favour of P.S. Sundaram was given to the respondent by Nand Kumar for Rs 2500; the cheque was endorsed and the amount credited in the account of the respondent. When the respondent borrowed the amount in question from Nand Kumar, he was not working in the Industries Act Section. Nand Kumar knew that the respondent was working in the Steel & Cement Section of the Ministry and the applications for the grant of licences for setting up the steel plant re-rolling mills would go to that section. Even if the applications were to be dealt with at the initial stage by the Industries Act Section the respondent at least was expected to know that in due course the section in which he was working had to deal with the same. This is borne out by the fact that in July 1956 copies of the applications were actually sent to the Steel & Cement Section where the respondent was working. If he, therefore, borrowed money from Nand Kumar a few days earlier it seems rather clear that he placed himself under pecuniary obligation to a person who was likely to have official dealings with him. The words âlikely to have official dealingsâ take within their ambit the possibility of future dealings between the officer concerned and the person from whom he borrowed money. A disciplinary proceeding is not a criminal trial. The standard proof required is that of preponderance of probability and not proof beyond reasonable doubt. If the inference that Nand Kumar was a person likely to have official dealings with the respondent was one which a reasonable person would draw from the proved facts of the case, the High Court cannot sit as a court of appeal over a decision based on it. Where there are some relevant materials which the authority has accepted and which materials may reasonably support the conclusion that the officer is guilty, it is not the function of the High Court exercising its jurisdiction under Article 226 to review the materials and to arrive at an independent finding on the materials. If the enquiry has been properly held the question of adequacy or reliability of the evidence cannot be canvaased before the High Court (See :State of Andhra Pradesh v.S. Sree Rama Rao, AIR 1963 SC 1723) No doubt there was no separate finding on the question whether Nand Kumar was a person likely to have official dealings with the respondent by the Inquiring Officer or the President. But we think that such a finding was implied when they said that Charge No. 3 has been proved. The only question was whether the proved facts of the case would warrant such an inference. Tested in the light of the standard of proof necessary to enter a finding of this nature, we are satisfied that on the material facts proved the inference and the implied finding that Nand Kumar was a person likely to have official dealings with the respondent were reasonable.â [Emphasis Supplied]
29. In Deport Manager, A.P. SRTC Vs. Mohd. Yousuf Miya, (1997) 2 SCC 699, the Apex Court expressed its view as under:
â8. We are in respectful agreement with the above view. The purpose of departmental enquiry and of prosecution are two different and distinct aspects. The criminal prosecution is launched for an offence for violation of a duty, the offender owes to the society or for breach of which law has provided that the offender shall make satisfaction to the public. 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 grave nature involving complicated questions of fact and law. Offence generally implies infringement of public (sic 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 Evidence Act. Converse is the case of departmental enquiry. The enquiry in a 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. The enquiry in the departmental proceedings relates to the conduct of the delinquent officer and proof in that behalf is not as high as in an offence in criminal charge. It is seen that invariably the departmental enquiry has to be conducted expeditiously so as to effectuate efficiency in public administration and the criminal trial will take its own course. The nature of evidence in criminal trial is entirely different from the departmental proceedings. In the former, prosecution is to prove its case beyond reasonable doubt on the touchstone of human conduct. The standard of proof in the departmental proceedings is not the same as of the criminal trial. The evidence also is different from the standard point of the Evidence Act. The evidence required in the departmental enquiry is not regulated by the Evidence Act.â [Emphasis Supplied]
30. In the case of Suresh Pathrella Vs. Oriental Bank of Commerce, (2006) 10 SCC 572, the Apex Court held as under:
â11. In our view, the findings recorded by the learned Single Judge are fallacious. This Court has taken the view consistently that acquittal in a criminal case would be no bar for drawing up a disciplinary proceeding against the delinquent officer. It is well-settled principle of law that the yardstick and standard of proof in a criminal case is different from the disciplinary proceeding. While the standard of proof in a criminal case is a proof beyond all reasonable doubt, the proof in a departmental proceeding is preponderance of probabilities.â [Emphasis Supplied]
31. In West Bokaro Colliery (TISCO Ltd.) Vs. Ram Pravesh Singh, (2008) 3 SCC 729, the Apex Court held as under:
20. The Tribunal has set aside the report of the enquiry officer and the order of dismissal passed by the punishing authority by observing that the charges against the respondent were not proved beyond reasonable doubt. It has repeatedly been held by this Court that the acquittal in a criminal case would not operate as a bar for drawing up of a disciplinary proceeding against a delinquent. It is well-settled principle of law that yardstick and standard of proof in a criminal case is different from the one in disciplinary proceedings. While the standard of proof in a criminal case is proof beyond all reasonable doubt, the standard of proof in a departmental proceeding is preponderance of probabilities.â [Emphasis Supplied]
32. In Mazdoor Sangh Vs. Usha Breco Ltd., (2008) 5 SCC 554, the Apex Court laid down:
â33. Before a departmental proceeding, the standard of proof is not that the misconduct must be proved beyond all reasonable doubt but the standard of proof is as to whether the test of preponderance of probability has been met. The approach of the Labour Court appeared to be that the standard of proof on the management was very high. When both the parties had adduced evidence, the Labour Court should have borne in mind that the onus of proof loses all its significance for all practical purpose.â
33. In Samar Bahadur Singh Vs. State of U.P., (2011) 9 SCC 94, the Apex Court categorically held:
â 7. Acquittal in the criminal case shall have no bearing or relevance to the facts of the departmental proceedings as the standard of proof in both the cases are totally different. In a criminal case, the prosecution has to prove the criminal case beyond all reasonable doubt whereas in a departmental proceedings, the department has to prove only preponderance of probabilities. In the present case, we find that the department has been able to prove the case on the standard of preponderance of probabilities. Therefore, the submissions of the counsel appearing for the appellant are found to be without any merit.â [Emphasis Supplied]
34. In the case of Karnataka SRTC Vs. M.G. Vittal Rao, (2012) 1 SCC 442, Supreme Court has held as under:
â11. The question of considering reinstatement after decision of acquittal or discharge by a competent criminal court arises only and only if the dismissal from services was based on conviction by the criminal court in view of the provisions of Article 311(2)(b) [sic Article 311(2) second proviso (a)] of the Constitution of India, or analogous provisions in the statutory rules applicable in a case. In a case where enquiry has been held independently of the criminal proceedings, acquittal in a criminal court is of no help. The law is otherwise. Even if a person stood acquitted by a criminal court, domestic enquiry can be held, the reason being that the standard of proof required in a domestic enquiry and that in a criminal case are altogether different. In a criminal case, standard of proof required is beyond reasonable doubt while in a domestic enquiry it is the preponderance of probabilities that constitutes the test to be applied.â [Emphasis Supplied]
35. The Apex Court in the case of Inspector General of Police Vs. S. Samuthiram, (2013) 1 SCC 598 emphasised:
â 6. As we have already indicated, in the absence of any provision in the service rules for reinstatement, if an employee is honourably acquitted by a criminal court, no right is conferred on the employee to claim any benefit including reinstatement. Reason is that the standard of proof required for holding a person guilty by a criminal court and the enquiry conducted by way of disciplinary proceeding is entirely different. In a criminal case, the onus of establishing the guilt of the accused is on the prosecution and if it fails to establish the guilt beyond reasonable doubt, the accused is assumed to be innocent. It is settled law that the strict burden of proof required to establish guilt in a criminal court is not required in a disciplinary proceedings and preponderance of probabilities is sufficient. There may be cases where a person is acquitted for technical reasons or the prosecution giving up other witnesses since few of the other witnesses turned hostile, etc. In the case on hand the prosecution did not take steps to examine many of the crucial witnesses on the ground that the complainant and his wife turned hostile.
[Emphasis Supplied]
36. In SBI Vs. Narendra Kumar Pandey, (2013) 2 SCC 740, the Apex Court held as under:
â23. The inquiring authority has examined each and every charge levelled against the charged officer and the documents produced by the presenting officer and came to the conclusion that most of the charges were proved. In a departmental enquiry, the disciplinary authority is expected to prove the charges on preponderance of probability and not on proof beyond reasonable doubt. Reference may be made to the judgments of this Court in Union of India v. Sardar Bahadur and R.S. Saini v. State of Punjab. The documents produced by the Bank, which were not controverted by the charged officer, support all the allegations and charges levelled against the charged officer. In a case, where the charged officer had failed to inspect the documents in respect of the allegations raised by the Bank and not controverted, it is always open to the inquiring authority to accept the same.â [Emphasis Supplied]
37. In Commr. of Police Vs. Mehar Singh, (2013) 7 SCC 685, the Apex Court held as under:
â24. We find no substance in the contention that by cancelling the respondentsâ candidature, the Screening Committee has overreached the judgments of the criminal court. We are aware that the question of co- relation between a criminal case and a departmental enquiry does not directly arise here, but, support can be drawn from the principles laid down by this Court in connection with it because the issue involved is somewhat identical, namely, whether to allow a person with doubtful integrity to work in the department. While the standard of proof in a criminal case is the proof beyond all reasonable doubt, the proof in a departmental proceeding is preponderance of probabilities. Quite often criminal cases end in acquittal because witnesses turn hostile. Such acquittals are not acquittals on merit. An acquittal based on benefit of doubt would not stand on a par with a clean acquittal on merit after a full- fledged trial, where there is no indication of the witnesses being won over. In R.P. Kapur v. Union of India this Court has taken a view that departmental proceedings can proceed even though a person is acquitted when the acquittal is other than honourable.â [Emphasis Supplied]
38. In SBI Vs. R. Periyasamy, (2015) 3 SCC 101, the Apex Court held as under:
â11. It is interesting to note that the learned Single Judge went to the extent of observing that the concept of preponderance of probabilities is alien to domestic enquiries. On the contrary, it is well known that the standard of proof that must be employed in domestic enquiries is in fact that of the preponderance of probabilities. In Union of India v. Sardar Bahadur, this Court held that a disciplinary proceeding is not a criminal trial and thus, the standard of proof required is that of preponderance of probabilities and not proof beyond reasonable doubt. This view was upheld by this Court in SBI v. Ramesh Dinkar Punde. More recently, in SBI v. Narendra Kumar Pandey, this Court observed that a disciplinary authority is expected to prove the charges levelled against a bank officer on the preponderance of probabilities and not on proof beyond reasonable doubt.â [Emphasis Supplied]
39. This Court while deciding Writ Petition No. 19575/2014 (R.K. Solanki Vs. Central Bank of India and others) has held as under:
â 15. I find force in the arguments of Shri Pandey that degree of proof required in the departmental inquiry is totally different and the evidence of complainant cannot be discarded by applying the same parameters which were applicable in the criminal case. A conjoint reading of paragraphs 24 to 27 of this judgment makes it clear that the petitioner was acquitted by giving him benefit of doubt and the said judgment, by no stretch of imagination, can be said to be a judgment of acquittal on merits. Interestingly, in G.M.Tank (supra) the officer was honourably acquitted by the Court {See para 20 and 31}. Same is the case of S.Bhaskar Reddy (supra) {See para 21}. In SBI Vs. R.Periyasamy- (2015) 3 SCC 101 {See page 108}, it was held as under :-
âAn acquittal based on benefit of doubt would not stand on a par with a clean acquittal on merits after a full-fledged trial, where there is no indication of the witnesses being won over. The long-standing view on this subject was settled by this Court in R.P.Kapur Vs. Union of India, whereby it was held that a departmental proceeding can proceed even though a person is acquitted when the acquittal is other than honourable.â (Emphasis supplied)
16. The judgment of Captain M. Paul Anthony and G.M.Tank (supra) were again considered by the Supreme Court in Divisional Controller, Karnataka State Road Transport Corporation Vs. M.G.Vittal Rao-(2012) 1 SCC 442. In para-24, the Apex Court considered the judgment of Captain M. Paul Anthony(supra), and opined that this judgment is not of universal application. The judgment of G.M.Tank (supra) was considered in para-23 of the judgment.
After considering this judgment and after taking note of the basic judgment of R.P.Kapoor (supra) , the Apex Court held that the departmental inquiry and criminal case can run simultaneously despite the fact that the same are founded upon the same factual matrix. It was held that facts, charges and nature of evidence, etc. involved in an individual case would determine as to whether decision of acquittal would have any bearing on the findings recorded in the departmental inquiry. This view is followed by the Supreme Court in State of West Bengal and others Vs. Sankar Ghosh-(2014)3 SCC
610. In this case also, the Apex Court explained the judgment of Captain M. Paul Anthony and G.M.Tank (supra). In para, 16,17 and 18 of this judgment, the Apex Court held that the proof required in the departmental inquiry is different than the proof required in a criminal case. In Indian Overseas Bank, Annasalai and another Vs. P.Ganesan and others- (2008) 1 SCC 650, the Apex Court reiterated the same principle. In Ajit Kumar Nag Vs. Indian Oil Corporation Ltd. -(2005) 7 SCC 764, it was held as under:-
â ....The two proceedings criminal and departmental are entirely different. They operate in different fields and have different objectives. Whereas the object of criminal trial is to inflict appropriate punishment on offender, the purpose of enquiry proceedings is to deal with the delinquent departmentally and to impose penalty in accordance with service Rules...â (Emphasis supplied) In the light of aforesaid, I am unable to hold that after acquittal of the petitioner, the respondents were not justified in conducting the inquiry.â
40. In the judgments dated 18.10.2011, the learned JMFC opined that on the basis of the statements of witnesses in the criminal case, this fact is not established that the present petitioners were the police personnel present at the time of incident. Thus, the findings/conclusions given by the criminal Court is based on the basis of evidence so recorded in the said case. Needless to mention that criminal Court applied the standard of proof which is applicable in the criminal case whereas in the departmental inquiry, if some evidence is available to establish the charge ,it is sufficient to hold the petitioners as guilty.
41. This is, thus, well settled that the exoneration from criminal case does not mechanically exonerates the employee from the departmental inquiry/punishment. It is apposite to refer certain judgments:
42. In Nelson Motis Vs. Union of India, (1994) 4 SCC 711, the Apex Court held as under:
â 5. So far the first point is concerned, namely whether the disciplinary proceedings could have been continued in the face of the acquittal of the appellant in the criminal case, the plea has no substance whatsoever and does not merit a detailed consideration. The nature and scope of a criminal case are very different from those of a departmental disciplinary proceeding and an order of acquittal, therefore, cannot conclude the departmental proceeding. Besides, the Tribunal has pointed out that the acts which led to the initiation of the departmental disciplinary proceeding were not exactly the same which were the subject matter of the criminal case.â [Emphasis Supplied]
43. In NOIDA Entrepreneurs Assn. Vs. NOIDA, (2007) 10 SCC 385, Supreme Court has held as under:
â16. 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.â [Emphasis Supplied]
44. In the case of State (NCT of Delhi) Vs. Ajay Kumar Tyagi, (2012) 9 SCC 685, the Apex Court has held as under:
25. We are, therefore, of the opinion that the exoneration in the departmental proceeding ipso facto would not result in the quashing of the criminal prosecution. We hasten to add, however, that if the prosecution against an accused is solely based on a finding in a proceeding and that finding is set aside by the superior authority in the hierarchy, the very foundation goes and the prosecution may be quashed.
But that principle will not apply in the case of the departmental proceeding as the criminal trial and the departmental proceeding are held by two different entities. Further, they are not in the same hierarchy.
[Emphasis Supplied]
45. In the light of the aforesaid judgments of Supreme Court, it is clear that the judicial review of departmental inquiry is based on different principles and acquittal of petitioners from the criminal Court will not result into exoneration of the petitioners.
46. In the light of aforesaid analysis, in my view, there is no flaw in the decision making process. The department has led credible evidence to show that the petitioners are guilty. The findings of Inquiry Officer are neither perverse nor based on no evidence. The orders of Disciplinary Authority and Appellate Authorities are in accordance with law. In view of serious misconduct on the part of petitioners, it cannot be said that punishment is disproportionate.
47. In the result, I find no justifiable reason to interfere in the present case. The petition is bereft of merit and is hereby dismissed. No cost.
(Sujoy Paul) Judge MKL/S@if/Biswal HIGH COURT OF MADHYA PRADESH JABALPUR WRIT PETITION NO. 3898 of 2014 Devi Charan Tiwari and another Vs. The State of M.P. & Others Order Post for : 10/07/2017 (Sujoy Paul) Judge /07/2017 (SUJOY PAUL) JUDGE Biswal