Allahabad High Court
Mohd. Salim Siddiqui vs State Of U.P. And Others on 25 February, 2011
Author: Sudhir Agarwal
Bench: Sudhir Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 26 Case :- WRIT - A No. - 17102 of 2007 Petitioner :- Mohd. Salim Siddiqui Respondent :- State Of U.P. And Others Petitioner Counsel :- Amit Srivastava,Ashok Khare Respondent Counsel :- C.S.C.,Abhinav Upadhyay Hon'ble Sudhir Agarwal,J.
1. Heard Sri Ashok Khare, learned counsel for the petitioner and the learned Standing Counsel for the respondents.
2. This writ petition is directed against order dated 10.1.2007 (Annexure 20 to the writ petition) passed by the Inspector General of Police, PAC, U.P. Lucknow (respondent no. 2) rejecting the revision of petitioner which was filed against order dated 16.1.1999 dismissing appeal of the petitioner against order of dismissal dated 19.5.1998.
3. Facts giving rise to present dispute are as under:
4. Petitioner was appointed as Constable in Provincial Armed Constabulary (P.A.C.) U.P. in the year 1988 and was posted in 39th Battalion P.A.C., Mirzapur. In year 1994 he was posted at 4th Battalion P.A.C., Allahabad. FIR dated 28.5.1997 was lodged against cleaner of vehicle No. 70-E-8655 of 4th Battalion P.A.C. bearing Case Crime No. 315/97 under Sections 279, 337, 338 IPC. Later on it was converted into Section 279/304-A IPC alleging that on 28.5.1997 one Himmat Singh got injured in his chest due to rash and negligent driving of vehicle. After investigation, police filed charge sheet under Sections 279/304-B IPC. Another report was lodged on 28.5.1997 by driver Gama Yadav, Constable of aforesaid vehicle, against the mob under Section 147, 336, 341, 427 IPC alleging that the aforesaid vehicle was driven by Constable Saleem and he dashed Himmat Singh who sustained injuries, and mob assaulted Gama Yadav and his vehicle and damaged it. The matter was closed pursuant to Final Report submitted by police which was accepted by the Court.
5. Trial No.315/97 proceeded and ultimately the Judicial Magistrate-, Allahabad acquitted the petitioner vide judgment dated 5.8.2002. However, a departmental enquiry was initiated against petitioner placing him under suspension on 2.6.1997 on the allegation that at about 8:30 p.m. on 28.5.1997 petitioner, while driving himself vehicle no. 70-E/8655, dashed a person near Kanhayeepur and ran away from the spot leaving vehicle and when driver reached the spot, public assaulted him and also damaged the vehicle.
6. A Preliminary enquiry was conducted by Sri K.N. Dubey, Assistant Commandant, I 4th Battalion P.A.C. about the said incident who submitted report on 16.9.1997 recommending regular departmental enquiry against petitioner. Charge Sheet was issued on 14.1.1998 which was replied by petitioner on 3.2.1998. After conclusion of oral enquiry, report was submitted by enquiry officer on 16.4.1998 holding petitioner guilty and recommended punishment of dismissal. Disciplinary authority thereafter passed order of dismissal on 19.5.1998. Petitioner's appeal dated 14.6.1998 was rejected by appellate authority i.e. the Deputy Inspector General of Police, P.A.C., Kanpur Section, Kanpur vide order dated 16.1.1999. His revision was rejected by revisional authority i.e respondent no. 2 vide order 7.8.1999.
7. After acquittal in criminal case on 5.8.2002, petitioner filed an application dated 26.10.2002 requesting for his reinstatement in view of acquittal. The aforesaid application was rejected by respondent no. 2 on 14.1.2003 whereafter petitioner filed writ petition no. 15699 of 2003. This Court vide order dated 8.1.2004 disposed of writ petition with observations as under:
"The report of the enquiry officer in the present case has not been brought on record. The order of the Disciplinary Authority does not indicate clearly is that evidence has been relied upon in the departmental proceedings and, therefore, it cannot be decided here whether the evidence in the departmental proceedings and the criminal trial was common without there being a variance.
However, the decision of the Supreme Court is the law of the land and has to be followed not only by this court but also by all administrative authorities. Therefore, the order dated 27.1.2003 rejecting the review application is set aside. The respondent No. 2 will examine the matter again in the light of the aforesaid Supreme Court decision and in the light of the facts available on record within three months of the date on which certified copy of this order is presented before the said order.
This petition is disposed of as above."
8. Since this Court quashed order dated 27.1.2003 only and the matter was remanded to respondent no.2 he examined it again and passed an order dated 10.8.2004 rejecting petitioner's review application. The petitioner came to this Court again in writ petition no. 43546 of 2004 seeking for quashing of the order dated 10.8.2004. This writ petition was allowed. The order dated 10.8.2004 was quashed. The Court remanded the case to Revisional Authority for reconsideration. The order reads as below:
"Heard learned counsel for the petitioner and learned Standing Counsel for the respondents.
The petitioner is impugned the order passed by the Inspector General dated 10th of August 2004. This matter had been admitted by judgment of this Court on 8th of January 2004, which has been passed on the basis of the law laid down by the Hon'ble Apex Court in the case of Capt. M. Paul Anthony Vs. Bharat Gold MInes Ltd. and another reported in (1999) 3 SCC 679.
The learned counsel for the petitioner has argued that the criminal Court passed an order on 5.8.2002 by which a clear cut order of acquittal was passed in favour of the petitioner on the basis of the main evidence as given by one Gama Yadav who was the alleged driver of the Truck which was given out on the date of the accident.
In my opinion it shall be in the interest of justice if the matter is sent back to the Inspector General to re-examine this aspect of the matter, the matter on remand will be heard and decided by the Inspector General within a period of 3 months in accordance with law and after giving the petitioner a proper opportunity of hearing. The impugned order dated 10th of August 2004 is set aside. The matter remand back for re-consideration.
The writ petition is allowed. There will be no order as to costs."
9. The respondent no. 2 has now passed impugned orders.
10. Sri Ashok Khare, learned Senior Advocate assisted by Sri Amit Srivastava vehemently contended that since criminal trial and departmental enquiry are proceedings on the identical facts and material, hence after acquittal of petitioner, respondents are bound to reinstate him in service. In this regard he placed reliance on the decision of Apex Court in Capt. M. Paul Anthony Vs. Bharat Gold Mines Ltd. And another (1999)3 SCC 679.
11. It is true that trial against petitioner as well as the departmental enquiry relate to the same incident but to arrive at a conclusion that same are in respect of same charges, based on identical evidence, and same set of facts, it would be appropriate to have a perusal of charge levelled against petitioner in departmental enquiry and the charge for which he was tried in Court of law.
12. The charge tried against petitioner was under Section 279-A/304-B based on averment that on 28.5.1997 at 9:00 p.m. petitioner hit brother-in-law of complainant Bal Kishan who was purchasing some goods, by driving the vehicle negligently resulting in serious injuries to victim who ultimately died.
13. Section 279 and 304-A IPC under which he was tried reads as under: -
279. Rash driving or riding on a public way.- Whoever drives any vehicle, or rides, on any public way in a manner so rash or negligent as to endanger human life, or to be likely to cause hurt or injury to any other person, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both."
"304-A. Causing death by negligence.- Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide, shall be punished with imprisonment or either description for a term which may extend to two years, or with fine, or with both."
14. Now charge sheet dated 14.1.1998 issued to the petitioner reads as under:
"fnukad 29-5-97 dks lk;adky nyuk;d Jh jke[ksykou lksudj dh /keZiRuh dk nsgkUr gks x;k FkkA ml le; Jh lksudj okfguh eq[;ky; esa ugha FksA e`r 'kjhj dks lqjf{kr j[kus ds fy, cQZ dh vko';drk Fkh ftldks ykus ds fy. mifujh{kd ifjogu 'kk[kk dks fufnZ"V fd;k x;k FkkA vki ;g tkurs gq, fd vkids ikl Hkkjh okgu pykus dk vuqKk i= ugha gS vkSj u vki mlds fy, vf/kd`r gh gSaA fQj Hkh vukf/kd`r :i ls okLrfod pkyd ds tkudkjh ds fxuk vki okgu la[;k ;w0 ih0 & bZ & 70 & 8655 Vªd ysdj fofguh ifjlj ls ckgj ysdj cQZ ykus ds fy, pys x;s vkSj dU/kbZiqj eksM+ ds ikl ,d ukxfjd ftldk uke fgEer flag iq= vtesjh fuoklh gjokjk bykgkckn Fkk] dh xkM+h cSd djrs le; nCkk fn;k vkSj mldh e`R;q gks xbZA nq?kZVuk gks tkus ds i'pkr vki ?kVukLFky ls Hkkxdj okfguh ifjlj esa pys vk,A Hkkjh xkM+h pykus dk vuqKkih u gksrs gq, Hkkjh okgu pykdj okfguh ifjlj ls ckgj okLrfod pkyd dh tkudkjh ds cxSj ls tkuk vki }kjk iznf'kZr ?kksj vuq'kklughurk] dRrZo; ds izfr vis{kk rFkk in ds fy, vdeZ.;rk dk ifjpk;d gSA vki vku{kh ds dRrZO;ksa ds fuoZgu esa vlQyrk ds nks"kh gSaA"
15. Now, I come to the evidence referred to in both the proceedings. In criminal case witnesses produced were Bal Kishan, Ram Asrey, Ashok Kumar, Dilip Kumar, Suhail Ahmad, SI Jai Narain Singh and G.S. Rathor. In the departmental enquiry Gama Yadav (Constable Driver); Kashi Nath Yadav, Devi Prasad Sharma (Sub-Inspector Transport Office); Manoj Kumar (PTI); Surya Bali (Assistant Commandant); Gyanendra Pratap (Assistant Commandant) and K.N. Dubey were the witnesses named.
16. Neither from the above it is evident that charge sheet in criminal trial and disciplinary enquiry was identical nor the oral evidence produced in both the matters were identical or same.
17. The departmental enquiry is basically concerned with gross negligence, dereliction of duty on the part of petitioner and gross negligence by driving a heavy vehicle unauthorisedly without having any valid licence. The criminal charge was concerned with negligent driving by petitioner which resulted in death of Himmat Singh. It is true that trial court acquitted petitioner holding that prosecution failed to prove completely that vehicle was being driven by the petitioner. In departmental enquiry, the enquiry officer has found the charge proved and therefore he was punished. It is well known that in order to convict a person for an offence highest degree of proof is required i.e. one has to prove the charge beyond doubt. If it is less or even slightly unproved, one may not be convicted but in the departmental enquiry degree of proof is much more different. A person of ordinary prudence may come to conclusion what has been arrived at by the disciplinary authority, such decision of the disciplinary authority shall not be disturbed merely for the reason that better view is possible. It is for this reason the findings recorded by criminal court or departmental enquiry have not been found binding on either of the proceedings vice versa since the procedure, proof and all other things are totally different in both these cases.
18. In order to get benefit of acquittal in criminal case in a departmental inquiry the charges, proceedings, witnesses, evidence, etc. must form similar set as has been noticed in G.M. Tank vs. State of Gujarat & others JT 2006(11) SC 36; 2006 (5) SCC 446. In para 30, it has been held:
"30. The judgments relied on by the learned counsel appearing for the respondents are not distinguishable on facts and on law. In this case, the departmental proceedings and the criminal case are based on identical and similar set of facts and the charge in a Departmental case against the appellant and the charge before the Criminal Court are one and the same. It is true that the nature of charge in the departmental proceedings and in the criminal case is grave. The nature of the case launched against the appellant on the basis of evidence and material collected against him during enquiry and investigation and as reflected in the charge sheet, factors mentioned are one and the same. In other words, charges, evidence, witnesses and circumstances are one and the same. In the present case, criminal and departmental proceedings have already noticed or granted on the same set of facts namely, raid conducted at the appellant's residence, recovery of articles therefrom. The Investigating Officer, Mr. V.B.Raval and other departmental witnesses were the only witnesses examined by the Enquiry Officer who by relying upon their statement came to the conclusion that the charges were established against the appellant. The same witnesses were examined in the criminal case and the criminal court on the examination came to the conclusion that the prosecution has not proved the guilt alleged against the appellant beyond any reasonable doubt and acquitted the appellant by his judicial pronouncement with the finding that the charge has not been proved. It is also to be noticed the judicial pronouncement was made after a regular trial and on hot contest. Under these circumstances, it would be unjust and unfair and rather oppressive to allow the findings recorded in the departmental proceedings to stand."
19. This has been referred and followed in The Managing Director State Bank of Hyderabad and Another vs. P. Kata Rao JT 2008(4) SC 577.
20. In para 12 of the judgment in Ajit Kumar Nag vs. General Manager (P.J.) vs. Indian Oil Corporation Ltd. Haldia & others JT 2005(8) SC 425, the court has said:
"12. As far as acquittal of the appellant by a criminal court is concerned, in our opinion, the said order does not preclude the Corporation from taking an action if it is otherwise permissible. In our judgment, the law is fairly well settled. Acquittal by a criminal court would not debar an employer from exercising power in accordance with Rules and Regulations in force. 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. In a criminal trial, incriminating statement made by the accused in certain circumstances or before certain officers is totally inadmissible in evidence. Such strict rules of evidence and procedure would not apply to departmental proceedings. The degree of proof which is necessary to order a conviction is different from the degree of proof necessary to record the commission of delinquency. The rule relating to appreciation of evidence in the two proceedings is also not similar. In criminal law, burden of proof is on the prosecution and unless the prosecution is able to prove the guilt of the accused 'beyond reasonable doubt', he cannot be convicted by a court of law. In departmental enquiry, on the other hand, penalty can be imposed on the delinquent officer on a finding recorded on the basis of 'preponderance of probability'. Acquittal of the appellant by a Judicial Magistrate, therefore, does not ipso facto absolve him from the liability under the disciplinary jurisdiction of the Corporation. We are, therefore, unable to uphold the contention of the appellant that since he was acquitted by a criminal court, the impugned order dismissing him from service deserves to be quashed and set aside."
21. These observations have been followed in Chairman-cum-M.D., T.N.C.S. Corpn. Ltd. &t others vs. V.K. Meerabai JT 2006(1) SC 444. Besides others, the Court held that procedure with respect to standard of proof in criminal case and departmental enquiry are different in the ultimate result. Referring to earlier decision, in Lalit Popli vs. Canara Bank and others JT 2003 (5) SC 494 the Court also said that approach and objective in criminal proceedings and disciplinary proceedings are altogether different. In 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 Rule governing enquiry and trial are conceptually different. In case of departmental enquiry the technical rules of evidence have no application. The doctrine of "proof beyond doubt" has no application. Preponderance of probabilities and some material on record is necessary to arrive at the conclusion whether or not the delinquent has committed misconduct.
22. Same view has been expressed in NOIDA Entrepreneurs Assn. vs. NOIDA & others JT 2007 (2) SC 620 (para 12) which reads as below:
"12. The purpose of departmental enquiry and of prosecution is 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 duty, as distinguished from mere private rights punishable under criminal law. When trial for criminal offence is conducted it should be in accordance with proof of the offence as per the evidence defined under the provisions of the Indian Evidence Act 1872 (in short the 'Evidence Act'). Converse is the case of departmental enquiry. The enquiry in 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. Under these circumstances, what is required to be seen is whether the department enquiry would seriously prejudice the delinquent in his defence at the trial in a criminal case. It is always a question of fact to be considered in each case depending on its own facts and circumstances."
23. The Court relied on its earlier decisions in Depot Manager, A.P. State Road Transport Corporation v. Mohd. Yousuf Miya and others 1997 (2) SCC 699, State of Rajasthan v. B.K. Meena and others JT 1996 (8) standing counsel 684 and Union of India and Another v. Bihari Lal Sidhana JT 1997 (4) SC 541.
24. In all these cases as discussed above, various other Apex Court decisions have also been referred. As a matter of proposition what has been held in case of Capt. M. Paul Anthony v. Bharat Gold Mines Ltd cannot be questioned. But the real issue is that the facts and circumstances of the case are identical in the manner as stated therein, meaning thereby, if the charges in a criminal case and departmental enquiry are identical, the witnesses are identical and the case is decided in such a manner where the same witnesses have been found making same statement and disbelieved in the court of law and then the question of applying it in departmental inquiry may arise & not all these findings may be seen by the disciplinary authority during the course of enquiry to find out whether these witnesses can be relied on to hold the delinquent guilty in the departmental enquiry. But where incident may be same, but otherwise the texture of charges & the real allegation is different, witnesses are different, different procedure is followed in both the kinds of proceedings, mere acquittal in criminal case will not make an impact on departmental proceedings particularly when same has already been concluded and there is no reason or occasion to review the same.
25. In this case, departmental enquiry was not only concluded but the statutory appeal and revision filed by petitioner also stood rejected. Petitioner did not challenge the same before any Court of law and accepted it. It is only when in criminal proceedings after few years he was acquitted, then for the first time in 2004 he approached revisional authority to review its order. Petitioner did not point out any error or irregularity in the departmental enquiry held against him. The only submission is that since he has been acquitted in the criminal case, therefore order of punishment passed in departmental enquiry after condoning delay should be set aside even though there is no legal infirmity in said proceeding. To my mind, the departmental inquiry have attained finality on the basis of independent proceedings. In my view, on the basis of acquittal in a criminal case where the things were different as discussed above, the authority was not justified to review of the order of punishment passed in departmental proceedings. Revisional Authority has considered these aspects in the impugned order and I do not find any legal infirmity in the approach of revisional authority as also in its reasoning & conclusion.
26. The writ petition is devoid of merit. Dismissed.
Order Date :- 25.2.2011 P.P.