Central Administrative Tribunal - Delhi
Maneesh Kumar vs Commissioner Of Police on 12 February, 2014
Central Administrative Tribunal Principal Bench New Delhi O.A.No.4248/2012 Order Reserved on: 30.08.2013 Order pronounced on 12.02.2014 Honble Shri Sudhir Kumar, Member (A) Honble Shri A.K. Bhardwaj, Member (J) Maneesh Kumar, S/o Shri Dharambir Singh, R/o VPO Bhambhawa, District Jhajjar, Haryana. .. Applicant (By Advocate : Shri Arun Bhardwaj) Versus 1. Commissioner of Police, PHQ, I.P. Estate, New Delhi-2. 2. Dy. Commissioner of Police, Rashtrapti Bhawan, India Gate, New Delhi-2. .. Respondents (By Advocate : Mrs. Renu George) O R D E R Mr. Sudhir Kumar, Member (A):
The applicant had been appointed in Delhi Police as Constable (Executive) on 11.01.2010, and was performing his duties thereafter. About one and half years later, on 05.06.2011, an First Information Report (in short, FIR) No.190 of 2011 was registered at Police Station, Sadar, Rohtak, Haryana by an unknown person under Section 392 of IPC read with Sections 25 and 54 of the Arms Act, in connection with a truck driver having been snatched of his money. During investigation of the case, some boys from the village of the applicant, including one known to the applicant, had been interrogated by the Police, and the applicant has submitted that the family members of that boy, known to the applicant, sought his help in the matter. The applicant has further submitted that when he went to the Police Station, Sadar, Rothak, Haryana, to inquire about the whereabouts of that innocent boy, known to him, he had an argument with some senior police officers, who were incidentally present there at that time in civil dress, while he had introduced himself, as a Constable in Delhi Police.
2. The applicant alleged that due to this reason, those senior Haryana Police Officers, present in civil dress in the PS, Sadar, Rothak, at that time, got annoyed with him, and threatened to teach him a lesson. The applicant has submitted that thereafter the facts of the investigation report in the case concerned were manipulated, and the applicant was also falsely implicated in that case, and was arrested and lodged in judicial custody, even though he claims that he had no concern at all with the said incident. The applicant has submitted that during the trial of the criminal case, before the Hon'ble Court of Sessions Judge, Rothak, none of the accused, including the applicant, as well as the innocent boys, were identified by the prosecution witnesses, who actually, during cross-examination, admitted that none of the persons, who had robbed them were present among the accused persons, who were present in the Court. Concrete evidence was given to this effect by the PW-2 and PW-4 in that case. The PW-5, PW-6 and PW-7 of that case also did not depose anything against the applicant.
3. During the pendency of the trial, the applicant had moved an application for bail, which was granted by the Court on 09.05.2012, on the ground that there was no incriminating evidence against the applicant. Later, on 21.05.2012, the Hon'ble Punjab and Haryana High Court, Chandigarh, granted regular bail to the applicant on the ground that his name was not at all mentioned in the original FIR, and that he was not identified by the complainant, who had stated that the applicant was not among the persons, who had robbed him.
4. In the meanwhile, soon after his arrest, the applicant had been placed under deemed suspension by the Deputy Commissioner of Police, Rashtrapati Bhawan, New Delhi, vide Order dated 22.06.2011, Annexure A/3, with effect from 16.06.2011, i.e., the date of his arrest. Thereafter, vide Order dated 03.01.2012, Annexure A/1, the services of the applicant were terminated under sub rule (1) of CCS (Temporary Service) Rules, 1965, and his period of suspension was also decided, as period not spent on duty, disentitling him for anything else, except the subsistence allowance, which he had already drawn.
5. The applicant filed a representation against the orders of termination, raising various grounds, through his representation dated 06.06.2012. However, the respondents rejected the representation of the applicant vide Order dated 17.08.2012, Annexure A/2, on the ground that it was barred by time, allegedly without applying their minds to the grounds taken by the applicant.
6. In the above factual circumstances, the applicant is before us, in this OA, by taking a number of grounds, against the impugned Orders, Annexures A/1 and A/2. The main contention of the applicant is that the impugned Order terminating his services is bad in the eyes of law, having been passed merely on the basis of conjectures and surmises, and having been passed on the presumption that the applicant had indeed been involved in and committed the crime concerned. He has further assailed the actions of the respondents by submitting that none of the several witnesses produced in the Court of competent jurisdiction at Rothak, Haryana, had deposed against him. He has also taken the ground that the Hon'ble High Court of Punjab and Haryana had also granted him a regular bail on the ground that he was neither named in the FIR, nor was identified by the complainant and other witnesses, produced as Prosecution Witnesses, in the criminal trial Court.
7. The applicant has taken a further ground that the respondents have terminated his services merely relying upon the contents of both the FIRs of the criminal cases, to conclude that he is a desparate character, though the FIRs neither name the applicant, nor do the impugned orders disclose any application of mind by the respondents to the facts and circumstances of the case. He has further taken the ground that the respondents are duty bound to examine his representation on merits, which they have rejected merely as being barred in time. He has tried to explain the delay by saying that since he was facing criminal prosecution, and had lost his employment in service, and had remained in judicial custody, therefore, there was some delay in his filing the representation against the impugned Order of termination dated 03.01.2012. He had assailed the actions of the respondents as improper, illegal, arbitrary, mala fide, and against the settled law of principles of natural justice, and also in violation of his Fundamental Rights. In the result, the applicant had prayed for the impugned order of termination dated 03.01.2012, Annexure A/1, to be quashed and set aside, and the impugned Order dated 17.08.2012, Annexure A/2, rejecting the representation as being barred by time, also to be set aside, and has further prayed for a direction upon the respondents to reinstate him in service, with all consequential benefits of seniority, back-wages and fixation of pay, etc., and also regularizing his period of suspension, and with a further direction to the respondents regarding the period of his suspension to be treated as period spent on duty, and all the consequential, and any other relief(s), which the Tribunal may deem fit and proper, along with the cost of the proceedings.
8. The respondents filed their counter reply on 11.02.2013. Through an affidavit sworn to by the Deputy Commissioner of Police, Rashtrapati Bhawan, New Delhi on 30.01.2013, narrating the facts of the case from their side, the respondents submitted that on 21.06.2011 itself, the concerned Police Station, Rothak, Haryana, had informed the Commissioner of Police, Delhi vide Memo No.1302/ST, dated 17.06.2011, that the applicant, who was a Constable (Executive) of Delhi Police, had been arrested on 16.06.2011 at 08.30 PM for his involvement in the case in FIR No.190 of 2011 dated 05.06.2011. They had submitted that when the report was received in the office on 22.06.2011, prompt action was taken to place him under suspension, and a Sub Inspector (Executive) Shri Vijay Kumar No.D/3276 was deputed to attend the office of SP, Rothak, and to collect a copy of the FIR, along with the present position and status of the case. When the deputed officer visited the office of SP, Rohtak, Haryana on 15.09.2011, and collected the memo No.40001 dated 15.09.2011, they discovered that the applicant had also been arrested earlier in the case of FIR No.173 dated 15.05.2011 under Section 392 IPC, and that one stolen Motor Cycle was also recovered from the applicant.
9. It was further submitted that when the applicant was enlisted in Delhi Police, as Constable, on 11.01.2010, and he had not even completed his period of probation, the respondents were alarmed to see that he had been involved in two heinous crimes of robbery, within a span of less than one month, and was running in judicial custody in both the cases. The respondents submitted that they, therefore, came to the conclusion, that the applicant was a desperate person, having criminal bent of mind, is extremely irresponsible, most abhorrent, and his crimes being serious in nature, he required to be dealt with a heavy hand. They submitted that in such type of cases of policemen, the faith of the common man in police gets shattered, and its image and reputation, as a disciplined force, undergoes irreparable damage. They further submitted that since the police are the protectors of the citizens rights, indulgence of a police Constable in crimes of such desperate nature would destroy the faith of the people, and involvement in such criminal activities amounts to serious misconduct, indiscipline and conduct unbecoming of a Government servant. They had, therefore, submitted that such acts had rendered him unfit to be in police force, and continuation of such person(s) in service would have been highly prejudicial. They further submitted that if stern and drastic action is not taken against such police personnel, who are still in probation, but have been found to be possessed with a criminal bent of mind, it would be a disservice to the Department in particular, and society, in general.
10. It was submitted that the applicant had taken the whole department for a ride, by concealing his involvement in two criminal cases, and, therefore, in order to protect the credibility of Delhi Police, it cannot keep such criminals as its members. It was in such circumstances that the Disciplinary Authority had ordered the services of the applicant to be terminated with immediate effect, from Delhi Police, under the provisions of sub rule (1) of Rule 5 of CCS (Temporary Service) Rules, 1965, through the impugned Order dated 03.01.2012. It was further submitted that since the period concerned has been treated as `period not spent on duty', the applicant shall not draw any amount except what he has already drawn in the shape of subsistence allowance, and in lieu of notice, he shall also be entitled to claim a sum equivalent to the amount of one month's pay plus allowances, at the rate he had last drawn his salary. It was further submitted that when the applicant had filed his representation with a delay of five months on 11.06.2012, against order of termination dated 10.01.2012, his case was rightly treated as having been barred by time.
11. In reply to the grounds taken by the applicant in his OA, it was submitted that he had been found to have been involved, and arrested in two heinous cases of robbery, and as such, his termination from service in Delhi Police, is quite justifiable and valid. It was further submitted that the proceedings of the Court had taken place after the actual termination of the applicant from service, and only regular bail has been granted by the Hon'ble Punjab and Haryana High Court, but the matter is still sub judice, and, therefore, the contentions raised by the applicant hold no water. Enclosing a copy of each of the two FIRs, and discussing the facts of the cases as noted therein, it was submitted that the date of his arrest in FIR No.173/2011 was 19.06.2011, and in FIR No.190/2011, it was 16.06.2011. It was further submitted that on the information received through a secret source, the accused and others had been discovered, including the involvement of the applicant, along with others, and the challans of the aforesaid cases were filed on 09.08.2011 and 06.08.2011 respectively, reflecting the names which could have been reflected at the time the initial FIR was registered. They had submitted that no formal inquiry needs to be conducted, because he was still working as probationer only, and if he had been confirmed in service, certainly, he would have been punished only after conducting a regular departmental inquiry. They had further explained that Rule 5(2)(a) of CCS (Temporary Service) Rules, 1965, would justify their actions, and also justify the rejection of the representation filed by the applicant. In the result, they had prayed for the OA to be dismissed with costs.
12. The applicant filed a rejoinder to the counter reply on 11.04.2013 more or less reiterating his earlier contentions and grounds, as already taken in the OA and discussed above. In a hilarious example of a clerical error, at the end of the rejoinder [on page 57 of the paper book], the applicant had prayed as follows:
It is, therefore, respectfully prayed that the O.A. may kindly be dismissed with costs.
Any other relief which this Honble Court may also deem fit to be granted to the applicant in the facts and circumstances of this case.
(Emphasis supplied)
13. We recognize that it is a clerical error, and pardon the applicant for mentioning the word `dismissed, and we have treated it to read as `allowed.
14. Along with the rejoinder, the applicant had also filed a copy of the judgment since pronounced by the Additional Sessions Judge, Rohtak, in Sessions Case No.65 of 2011/2012, on 26.03.3013, in which, the applicant of this OA was accused No.3. In this Judgement, in para 28, the learned Additional Sessions Judge, Rohtak, had came to the conclusion that since the applicant/accused had not been identified by the material witnesses, and since recovery of the stolen objects like motor cycle and cash was also after the lapse of about two weeks, therefore, this infirmity on the part of the prosecution entitled the applicant/accused for benefit of doubt. Even though the learned Additional Sessions Judge had noted that the motor cycle recovered was used by the applicant/accused, and was recovered from him, he did not find that sufficient evidence had been adduced before him to prove the ownership of that motor cycle which was used for the alleged commission of the offence. The learned Additional Sessions Judge, Rohtak had then gone ahead with the observations of the Honble Madras High Court in Kali @ Thangasamy and others v. State, Inspector of Police, Vikkiramangalam, 2011(1) Criminal Court Judgements 587, in which it was held that mere recovery of stolen articles is not sufficient to prove the offence, when the eight idols stolen from the temple in the night were recovered, but there was no witness to the theft. Finding such infirmities in the case of the prosecution, and noting material contradictions in the statements of the prosecution witnesses, as discussed in the Judgment, the learned Additional Sessions Judge, Rohtak, had held that it casts a shadow of doubt on the entire case of the prosecution and makes it highly doubtful. He then went ahead to hold that prosecution has not been able to bring home the guilt of the accused persons beyond reasonable doubt, and accordingly, after affording the benefit of doubt to all the three accused, he had ordered their acquittal in that case, and had allowed the property be confiscated from the accused to be disposed of in accordance with law, in due course of time, after the expiry of the prescribed period of the appeal/review/revision, if any.
15. The applicant had, through MA No.1800/2013, filed on 09.07.2013, sought to bring certain other documents also on record, which were the Judgement of the Sessions Judge, Rohtak in the other Sessions Case No.93 of 09.09.2011/1.11.2011, which Judgement had been pronounced by the learned Sessions Judge on 06.05.2013, in which also, the present applicant was accused No.3. It is seen that in this Judgement, the learned Sessions Judge, Rohtak recorded his findings as follows:
25. Therefore, in the absence of any cogent and reliable evidence, the recovery of the currency notes allegedly effected from the possession of the accused on the basis of the disclosure statements cannot be made the basis of conviction because the recovery of currency notes can be said to have been planted falsely upon the accused as there is nothing on the file in order to infer that prosecution has proved on record that the currency notes, wallet and mobile phone as well as driving licence looted from the complainant were allegedly recovered by the accused pursuant to their respective disclosure statement because the same were not got identified from the complainant after recovery.
26. The matter does not rest here. As per prosecution version, the occurrence took place on 15.5.2011 whereas the recovery of the robbed amount and other articles pursuant to their disclosure statements was effected from the accused on 20.6.2011 and it is not expected from a prudent person that he would retain the looted wallet containing driving licence having photograph of the complaint with him for such a long period and this circumstance creates doubt about the veracity of the prosecution version. It is also not proved on record that Exhibits P26 and P27 are the inventory and photo copies of the robbed currency notes because the same were not proved in the manner it should have been and the robbed currency notes were not got identified from the complainant during investigation and further, as is explicit from the testimony of SI Narender, PW9, no finger prints were lifted from the recovered articles. Further, admittedly, no public witness was joined and there is no satisfactory explanation put forward by the prosecution as to why the public witnesses were not joined during interrogation, disclosure statements and recoveries at the instance of the accused despite their availability. In this view of the mater (sic.matter), the recovery of the robbed currency notes, mobile phone and other articles at the instance of the accused becomes highly doubtful. Above being the position, the prosecution has failed to complete the chain of circumstances so as to prove that in all human probability, the accused and none else have committed the offence charged with.
27. Therefore, in view of the above discussion, it has to be held that the prosecution has failed to establish its case against the accused for the commission of the offence charged with beyond shadow of reasonable doubt and as such, the accused are hereby given the benefit of doubt and ordered to be acquitted of the charges framed against them and set at liberty. Their bail and surety bonds stand discharged.
28. Case property be confiscated to the State and be disposed of according to law after the expiry of the period of appeal/revision, if any, or the result thereof, as the case may be. File be consigned to the record room after due compliance.
(Subhash Goyal) Announced Sessions Judge, in open court. Rohtak.
Dated:6.5.2013.
16. Heard. During the arguments in the present case, the learned counsel for the applicant heavily relied upon the following Judgements:
The Judgement of the Honble Delhi High Court in Govt. of NCT of Delhi & Anr. V. Shri Jai Prakash, W.P.(C) No.3566/2010, decided on 24.05.2010.
The Judgement of the Honble Delhi High Court in Commissioner of Police and Anr. v. Vijay Kumar Malik, W.P.(C) No.330/2012, decided on 29.05.2012, and The Judgement of the Honble Delhi High Court in Commissioner of Police and Anr. V. Ramanuj Upadhyay, W.P.(C) No.3926/2012, decided on 09.07.2012.
17. The learned counsel for the applicant had relied upon para 16 of the Judgement in Jai Prakashs case (supra), and in particular, upon the paragraphs 4 to 9 of the Ramanuj Upadhyays case (supra) and also paras 4 and 5 of the Vijay Kumar Maliks case (supra).
18. We have considered the aforesaid Judgements, which have been relied upon by the learned counsel for the applicant, in the context of the present case. In Vijay Kumar Maliks case (supra), the Judgement of the Honble High Court had turned on the fact that Shri Vijay Kumar Malik was a Juvenile at the time of his having committed an offence which was under consideration, and it was noted from the case of Govt. of NCT of Delhi & Ors v. Pradeep Hooda, W.P.(C) No.2268/2012, decided on 08.05.2012, that even where a juvenile is found to have committed an offence, he shall not suffer any disqualification, and even the records are to be obliterated after a specified period of time, and that the intention of the Legislature was absolutely clear that in so far as Juveniles are concerned, their criminal record was not to stand in their way in their future lives. Since the applicant in the present case was not Juvenile at the time the offences in which he was accused in the above two cases, decided by the Additional Sessions Judge and Sessions Judge, Rohtak, as discussed above, he cannot derive any benefit from the Judgement of the Honble High Court of Delhi in Shri Vijay Kumar Maliks case (supra).
19. The Ramanuj Upadhyays case (supra), had turned on the fact that he was one of the persons named in a case registered pertaining to the agitations in the concerned University, where thousands of students of the University had gathered and agitated, and had indulged in a violent agitation/rioting, assaulting and damaging public property. After discussing the case law, and the procedure as prescribed by the Delhi Police in its Standing Order No.371/2011, regarding scrutiny of such cases by Screening Committee, the Honble High Court had noted in para 8 of the Judgement that the sole reason as to why the candidature of the respondent therein had been cancelled was the fact that his name was mentioned in the said FIR filed against thousands of students, and even though, he had been clearly acquitted after a full fledged trial by the Trial Court, the Screening Committee had still rejected his candidature on some other valid grounds. The Honble High Court of Delhi went on to hold in the last sentence of Para 8 of its Judgement that it was open for the Screening Committee to have rejected the candidature of the candidate for employment in Delhi Police on some other valid grounds, based on some other inquiries said to have been held by them, but they could not cancel it solely on the ground that the petitioners name found mention in the said FIR, which had culminated in an acquittal by the Criminal Court. The applicant before us cannot derive any benefit from this cited case also.
20. In the case of Jai Prakash (supra) it is seen that Honble Delhi High Court had stated that there are no such Rules and Regulations framed by the Delhi Police or Government of India whereby merely because criminal proceedings had been initiated against a person, he would be debarred from joining public service, since disqualification from public employment must follow, and must be considered, in accordance with some rules prescribed in this behalf. Since Shri Jai Prakash had suppressed declaration of information in the relevant form, the Honble High Court of Delhi had relied upon this Tribunals Judgement in Shri Anil v. Commissioner of Police & Others, decided on 09.04.2010, in which, in para 24, it was said that mere involvement in a criminal case or registration of FIR is not a proof of evidence in the criminal offence, unless the trial court, which is the only competent forum to record a finding as to the guilt of an accused in a criminal offence, delivers the verdict holding one guilty of the offence(s). The Honble High Court had concurred with the view that it is the fundamental principle of criminal jurisprudence that the acquittal is a presumption of one being innocent, as in Ghurey Lal v. State of Uttar Pradesh, (2008) 10 SCC 450, the Honble Apex Court had held that if the accused is presumed innocent until proven guilty, then the Trial Courts acquittal bolsters the presumption that he is innocent. Further, the Honble High Court went on, to hold that due or proper weight and consideration must be given to the trial courts decision, and that the decision of the authorities in having refused to give employment to the respondent in the Writ Petition (Shri Jai Prakash), despite his selection, merely because he was involved in a criminal case, though he was acquitted much before his date of appointment, and for which he had given the information to the authorities as is required under the law, cannot be upheld, and had, therefore, concurred that the decision of this Tribunal in allowing the OA cannot be faulted with in any manner, and had accordingly dismissed the Writ Petition of the Government of NCT of Delhi.
21. It appears that the ratio of Jai Prakash (supra) case also is not fully applicable to the facts of the instant case, since in the instance case, the applicant before us did not stand acquitted of the charges prior to his filing his application for employment in Delhi Police, but had actually been charged with having committed the two crimes during his probation, and had actually been discharged giving benefit of doubt in the aforesaid two decisions of the ASJ and SJ dated 26.03.2013 and 06.05.2013 respectively, both of which were rendered nearly four months and six months after filing of the present OA, and more than one year after the impugned order of termination, dated 03.01.2012, was passed by the Deputy Commissioner of Police, Rashtrapati Bhawan, New Delhi.
22. The Honble Apex Court has in some recent cases, propounded on `an acquittal on the basis of benefit of doubt, and `clean acquittal. As has been discussed above, in both the Judgements of the Additional Sessions Judge and the Sessions Judge, they have acquitted the present applicant only on the basis of benefit of doubt, since the prosecution had not been able to bring home his guilt beyond reasonable doubt.
23. The latest Judgement on this subject stands propounded by the Honble Apex Court in State of West Bengal & Others v. Sankar Ghosh (Civil Appeal No.10729/2013, decided on 28.11.2013), in which it has been made clear that there is a distinction between clean acquittal and an acquittal on the basis of benefit of doubt. The Honble Apex Court has held that acquittal on the basis of benefit of doubt can never be equated with clean acquittal.
24. Here, in the instant case, there was initially sufficient evidence collected by the prosecution against the applicant/accused No.3 in the form of the stolen motor vehicle recovered from him and its use in the crime being committed, and the recovery of snatched cash, etc., but ultimately they were unable to prove the case before the relevant criminal trial Court beyond reasonable doubt. However, as has been held by the Honble Apex Court, the Disciplinary Authorities, in the departmental proceedings, are not bound by the legal dicta associated with conviction or acquittal beyond reasonable doubt, as in departmental proceedings, it is the concept of pre-ponderance of probabilities, which prevails, and not the concept of beyond reasonable doubt.
25. The applicant was only a probationer, and it is trite law that probationer does not have any right to claim that a detailed disciplinary inquiry ought necessarily to be conducted in case of any malfeasance on the part of the probationer, and that the services of a probationer can be terminated, at any time, without notice, whenever such termination is not by way of stigma.
26. Here, in the instant case, the respondent authorities are on further strong ground. The appointment of the applicant was covered under the CCS (Temporary Service) Rules, 1965, and in particular, Rule 5(2)(a) of that CCS (Temporary Service) Rules, 1965, which prescribes and provides as follows:
(2) (a) Where a notice is given by the Appointing Authority terminating the service of a temporary Government servant or where the service of any such Government servant is terminated either on the expiry of the period of such notice or forthwith by payment of pay plus allowance the Central Government or any other authority specified by the Central Government in this behalf or a Head of Department, if the said authority is subordinate to him, may, of its own motion or otherwise, re-open the case, and after making such enquiry as it deems fit:-
(i) Confirm the action taken by Appointing Authority;
(ii) withdraw the notice :
(iii) reinstate the Government servant in service; or
(iv) make such other order in the case as it may consider proper:
Provided that except in special circumstances, which should be recorded in writing, no case shall be re-opened under this sub-rule after the expiry of three months:-
(a) (i) from the date of notice, incase where notice is given:
(ii) from the date of termination of service, in a case where notice is given.
27. It is, therefore, clear that the respondents were fully within their rights to dispense with the services of the applicant before us, by passing the impugned orders, as they have done.
28. If a person, who was still in the period of his probation, and was posted in a prestigious Police establishment like that of the Rashtrapati Bhawan, can stoop down to the level of involvement in such heinous crimes, it would not have foreboden well for as to what he would have done, or could have done, in future, just in case he had been confirmed in the Police service.
29. In the case of Deputy Inspector General v. S. Samuthiram, (2013) 1 SCC 598, the Honble Apex Court had in paras 24, 25 and 26 of the Judgement elaborately examined the meaning and scope of the `honourable acquittal versus acquittal on the basis of benefit of doubt, which Judgement was followed by another Bench of the Honble Apex Court in Commissioner of Police, New Delhi and Anr. v. Mehar Singh, (2013) 7 SCC 685. Both these Judgements were relied upon by the Honble Apex Court in State of West Bengal & Ors. v. Sankar Ghosh (surpa), and we take the liberty of reproducing the relevant paragraphs Nos.10 to 18, of that latest Apex Court Judgement dated 28.11.2013, which are as follows:
10. We may, at the very outset, point out that the respondent was a member of the disciplined force. He was working as a Sepoy in the 2nd Battalion of the Kolkata Armed Force and at the relevant point of time he was working as Sepoy on deputation with the traffic department of Kolkata Police. It is true that the respondent was dismissed from service due to his involvement in the criminal case, wherein he was charged with the offences under Sections 395/412 IPC and Sections 25/27 of the Arms Act. It is also the stand of the department that being a member of the disciplined force, his involvement in such a heinous crime tarnished the image/prestige of the Kolkata Police Force in the estimation of the members of public in general. Before the Enquiry Officer from the side of the department, four witnesses were examined, including Jiban Chakraborty, the S.I. Police. Exh. A-3 to A-12 are the documents produced before the Enquiry Officer. PW3, S.I. Jiban Chakraborty, the Inspector of Police before the Enquiry Officer deposed as follows :
During investigation he arrested some suspects into this case. In pursuance to the statement of the suspects he arrested the C.O. from his residence situated in 389, Milangarh, Natagarh under P.S. Ghosla (24 Pgs.-N) on 26.11.03 at 01.05 hrs. He prepared the arrest memo (Exhibit No.A5). He conducted in search at this residence and recovered a sum of Rs.10,000/- from his possession being the stolen recovered money of the said case. He also recovered the motor cycle bearing No.WB24F-3050 from his house. During investigation he also recovered one private car. He stated that both the motor cycle and the private car were used during the commission of the crime. During investigation he came to know that the O.C. is a Constable of Kolkata Police posted to 2nd Bn of Kolkata Police working on deputation traffic deptt. The C.O. was produced before the Ld. Court of SDJM, Barrackpore and was remanded to P.O. till 29.11.03 on further production, the C.O. was remanded to jail custody and enlarged on Bail on 30.3.04. After completion of investigation he submitted charge-sheet against the C.O. & others u/s 395/412 CPC, 25/27/35 Arms Act During cross examination, the P.W. stated that he seized motor cycle was registered in the name of Sri Swapan Ghosh and the same was seized from the possession of Swapan Ghosh. During cross examination the P.W. stated that it is not a fact that the C.O. has no complicity into the case. After thorough investigation & enquiry prima facie charge established against the C.O. and others.
11. The Enquiry Officer believed the evidence of PW3 and concluded that the charges levelled against the respondent were proved beyond any shadow of doubt, except the charge that the respondent stayed out without permission. PW3 had categorically stated that he conducted a search at the residence of the respondent and recovered a sum of Rs.10,000/- from his possession being the stolen money. He had also recovered the motor cycle bearing No.WB24F-3050 from the respondents house which was used for the commission of the crime. During the investigation, he had also recovered one private car from the respondents residence. Investigation revealed that both the motor cycle and the private car were used during the commission of the crime.
12. We have gone through the judgment of the Sessions Court. Sessions Court though acquitted the accused persons including the respondent, concluded as follows :-
While there are vital evidence on the record regarding recovery of money, recovery of firearm, recovery of unused writing pad of Dr. R.P. Mitra, but the most vital missing link is the identification made by him in the TI Parade but because of the time lag between the date of incident and the date of TI Parade and the date of his statement u/s 164 Cr.P.C. (1.12.03) and the further time lag of about six days for the TI Parade on 6.12.03 does not convince my mind to accept such evidence relating to identity of the accused persons during the trial could not be bridged by the prosecution through any evidence. The prosecution, therefore, fails as the identity of the accused persons has not been established before the Court during the trial.
13. We, therefore, notice that both the Disciplinary Authority as well as the Sessions Court were of the view that there are vital evidence on record regarding recovery of money, fire arms and recovery of unused writing pad of Dr. R.P. Mitra, PW3, the SI deposed further that the money was recovered from the house of the respondent so also the motor bike as well as the car. The Sessions Court, however, had to acquit the respondent since Dr. R.P. Mitra could not identify him during the TI Parade. On going through the judgment of the Sessions Court, it cannot be said that the respondent was honourably acquitted.
14. In Deputy Inspector General v. S. Samuthiram [(2013) 1 SCC 598], this Court in paragraph 24, 25 and 26 of the judgment has elaborately examined the meaning and scope of the honourable acquittal and held as follows :-
26. 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. The court, therefore, acquitted the accused giving the benefit of doubt. We are not prepared to say that in the instant case, the respondent was honourably acquitted by the criminal court and even if it is so, he is not entitled to claim reinstatement since the Tamil Nadu Service Rules do not provide so.
15. The judgment of S. Samuthiram (supra) was later followed by another Bench of this Court in Commissioner of Police, New Delhi & Anr. V. Mehar Singh [(2013) 7 SCC 685].
16. We indicate that the respondent could not lay his hand to any rule or regulation applicable to the Police Force stating that once an employee has been acquitted by a Criminal Court, as a matter of right, he should be reinstated in service, despite all the disciplinary proceedings. In otherwise there is no rule of automatic reinstatement on acquittal by a Criminal Court even though the charges levelled against the delinquent before the Enquiry Officer as well as the Criminal Court are the same. On this aspect, reference may be made to para 27 of the judgment in S. Samuthiram (supra), which reads as under:-
27. We have also come across cases where the service rules provide that on registration of a criminal case, an employee can be kept under suspension and on acquittal by the criminal court, he be reinstated. In such cases, the reinstatement is automatic. There may be cases where the service rules provide that in spite of domestic enquiry, if the criminal court acquits an employee honourably, he could be reinstated. In other words, the issue whether an employee has to be reinstated in service or not depends upon the question whether the service rules contain any such provision for reinstatement and not as a matter of right. Such provisions are absent in the Tamil Nadu Service Rules.
17. Regulation 4 of Chapter 19 of the Police Regulations of Calcutta, 1968, which is applicable to the case in hand, specifically provides that acquittal or discharge in a criminal proceeding shall not be a bar to award punishment in a departmental proceeding in respect of the same cause or matter. The said Regulation is extracted below for easy reference :
4. Discharge or acquittal not a bar to departmental punish- ment. An order of discharge or acquittal of a Police Officer shall not be a bar to the award of departmental punish-ment to that officer in respect of the same cause or matter.
18. Above rule indicates that even if there is identity of charges levelled against the respondent before the Criminal Court as well as before the Enquiry Officer, an order of discharge or acquittal of a police officer by a Criminal Court shall not be a bar to the award of the departmental punishment. The Tribunal as well as the High Court have not considered the above-mentioned provision and have committed a mistake in holding that since the respondent was acquitted by a Criminal Court of the same charges, reinstatement was automatic. We find it difficult to support the finding recorded by the Tribunal which was confirmed by the High Court. We, therefore, allow the appeal and set aside the order of the Tribunal, which was affirmed by the High Court. However, there will be no order as to costs. (Emphasis supplied)
30. To our mind, the case of the present applicant is fully covered by the Honble Apex Courts Judgement in the case of Sankar Ghosh (supra), and even the facts of the present case before us are quite similar to the case that Honble Apex Court was considering, like the recovery of Motor Cycle, etc., and therefore, the applicant cannot get the benefit of the case law of the Honble High Courts Judgements, relied upon by the learned counsel for the applicant during the arguments, which have been referred to herein before.
31. In view of the aforesaid discussions, the OA is dismissed as being devoid of any merit, but there shall be no order as to costs.
(A.K. Bhardwaj) (Sudhir Kumar) Member (J) Member (A) /nsnrsk/