Madhya Pradesh High Court
Mahendra Singh Bharti vs Union Of India on 19 January, 2022
Author: Nandita Dubey
Bench: Nandita Dubey
1 W.P. No.13579/2008
HIGH COURT OF JUDICATURE AT JABALPUR (M.P.)
SINGLE BENCH : HON'BLE JUSTICE NANDITA DUBEY
Writ Petition No. 13579/2008
Mahendra Singh Bharti
Vs.
Union of India and others
____________________________________________________
Shri Mahendra Singh Bharti, petitioner in person.
Shri Ashok Sinha, learned counsel for the
respondents.
Arguments heard on : 26.09.2021
Order delivered on : 19.01.2022
ORDER
By this petition, the propriety and legality of the order dated 26.10.2008 (Annexure P-5), passed by respondent No.3 and notice dated 24.10.2008, issued by Assistant Security Commissioner, RPF, Itarsi are under challenge.
2. The facts of the case reveal that the petitioner was working on the post of constable with the Railway Protection Force. Initially, the petitioner was employed with Armoured Corpus Centre and School, Ahmednagar, Maharashtra, where he served from 1980 to 1985. He was 2 W.P. No.13579/2008 discharged (own request) from the Army Services and thereafter recruited in the Railway Protection Force and after training period was posted as Constable on 12.06.1995. Petitioner was served with a charge sheet dated 24.10.2008 by the Assistant Security Commissioner, Itarsi, whereby he was directed to remain present before the enquiry officer for preliminary enquiry to be held on 31.10.2008 at Bhopal. The charge sheet mentioned that earlier the petitioner has made a complaint against respondent No.4, which was found false and baseless. Thereafter, vide order dated 26.10.2008, petitioner has been dismissed from service exercising the powers under Rule 161.2 of RPF Rules, alleging that petitioner has submitted false information at the time of seeking employment.
3. The impugned order dated 26.10.2008 assailed interalia on the ground that the same is passed without holding any enquiry and in violation of principles of natural justice. It is urged that the petitioner has earlier made a complaint against respondent No.4, whereafter an enquiry was conducted and charge sheet was issued to him. The respondents without conducting proper enquiry with a malafide intention terminated the service of petitioner. 3 W.P. No.13579/2008
4. Per contra, the stand of respondents is that the order of termination dated 26.10.2008 has no connection with the charge sheet dated 24.10.2008. It is stated that the charge sheet was issued on the ground of dereliction of duties and making false allegations and complaints against senior officer, whereas the petitioner's services were terminated for the reason that he obtained the service in RPF by making false declaration in the application and attestation form submitted by him. It is further argued that an appeal is provided against the order of termination and a further revision against the order of appellate authority. Under such circumstances, filing of this petition without availing the alternate remedy is not maintainable.
5. Heard the learned counsel for the parties and perused the record.
6. As far as challenge to charge sheet is concerned, the scope and extent of judicial review and interference in the charge sheet permissible under Article 226 of the Constitution of India is limited. It is settled law that issuance of order or suspension or charge sheet at the instance of the disciplinary authority to conduct an enquiry cannot be treated as punishment and does not give rise to a cause of action as no final order is passed at this stage. 4 W.P. No.13579/2008 Normally, a charge sheet is not quashed prior to conducting the enquiry on the ground that facts stated in the charge sheet are erroneous. The legal proposition in this regard has already been settled by the Supreme Court in a number of decisions that no writ lies against the charge sheet or show cause notice unless the same is wholly without jurisdiction or illegal for some other reasons.
7. Further, on perusal of record, it is evident that the charge sheet issued on account of making false complaint against his senior has no connection to the order of termination which was passed on account of petitioner giving false information in his application and attestation form.
8. A perusal of the documents on record show that petitioner was appointed on the post of Constable in the year 1995. He had applied under the ex-servicemen category (five years experience of service). With his application, he submitted self attested copies of certification of his service in Army from 18.09.1980 to 25.10.198, i.e., service of more than five years. He also submitted attestation form declaring that he served in army from 18.09.1980 to 25.10.1985. The warning clause 3 of the attestation from clearly states that, "if the fact that 5 W.P. No.13579/2008 false information has been furnished or that there has been suppression of any factual information in the attestation form comes to the notice at any time during the service of a person, his services would be liable to the terminated."
9. Later, a complaint was received that petitioner has obtained service in RPF by submitting tampered documents. Petitioner when asked to submit the original documents, stated that his original documents were lost. An enquiry was conducted by the Internal Vigilance Group of RPF (IVG). The verification report regarding the documents and service period submitted by the petitioner was called from the Major Senior Record Officer, who vide communication dated 17.05.2008 (Annexure R-3) informed the IVG that the petitioner was enrolled in the Army on 18.09.1981 and discharged from service on 26.10.1986, on his request on compassionate ground. The IVG submitted its report dated 27.08.2008 (Annexure R-4). The IVG found that petitioner has obtained appointment by giving false declaration and using tampered documents and recommended registration of FIR under Sections 419, 420, 467, 468 and 471 of I.P.C. and also to take strict action as per 161.2 of RPF Rules.
6 W.P. No.13579/2008
10. Rule 161.2 provides that, "where the authority competent to impose the punishment is satisfied for reasons to be recorded by it in writing that it is not reasonably practicable to hold an enquiry in the manner provided in these rules, the authority competent to impose the punishment may consider the circumstances of the case and make such orders thereon as it deems fit."
11. The aforesaid rule itself provides that where it is not reasonably practicable to hold an enquiry, the authority competent after considering the circumstances may pass such orders as it may deem fit.
12. In the instant case, the petitioner in his application and attestation from has mentioned his period of service as ex-servicemen from 18.09.1980 to 25.10.1985, whereas the verification report/letter dated 17.05.2008 (Annexure R-3) by Major Senior Record Officer shows his date of enrollment in the Army as 18.09.1981. Under the circumstances, when the original documents were reported lost by the petitioner and the documents as submitted by the petitioner at the time of applying for service in RPF were on record, it was not practicable to hold an enquiry. The authority concerned has not erred in 7 W.P. No.13579/2008 passing the impugned order in view of the warning clause of attestation form and the verification report.
13. Further contention of petitioner is that since both the criminal and departmental proceedings were based on the same set of facts, therefore, after he being acquitted in the criminal case is entitled to be reinstated and the order of dismissal based on the report of IVG is not legally tenable. A perusal of the documents show that the allegation in departmental proceedings and the criminal case were totally different. In the criminal case, he was charged for committing an offence under Sections 419, 420, 467, 468, 471 of I.P.C. that he obtained service in RPF by manipulating his earlier service records, whereas in departmental proceedings, the charge is that he suppressed or gave wrong information in the application and attestation form.
14. 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, and proof in that behalf is not as high as in an offence in criminal charge. The nature of evidence in criminal trial is entirely different from the departmental proceedings. In the former, prosecution is to 8 W.P. No.13579/2008 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. (See (1999) 2 SCC 699 Depot Manager A.P. State Road Transport Corporation Vs. Mohd. Yousuf Miya and Others.)
15. The scope of departmental enquiry and judicial proceedings and the effect of acquittal by a criminal court has been examined in (2019) 7 SCC 799 Shashi Bhusan Prasad vs Inspector General, CISF, wherein the Supreme Court after reiterating the law laid down in the case of (2005) 7 SCC 764 Ajit Kumar Nag Vs. General Manager (PJ), Indian Oil Corporation Limited, Haldia and Others has held thus :-
"18. The exposition has been further affirmed by a three Judge Bench of this Court in Ajit Kumar Nag Vs. General Manager (PJ), Indian Oil Corporation Limited, Haldia and Others , this Court held as under: "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 9 W.P. No.13579/2008 not debar an employer from exercising power in accordance with the 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 the offender, the purpose of enquiry proceedings is to deal with the delinquent departmentally and to impose penalty in accordance with the 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 a departmental enquiry, on the other 4 2005(7) SCC 764 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."
(Emphasis supplied)
19. We are in full agreement with the exposition of law laid down by this Court and it is fairly well settled that two proceedings criminal and departmental are entirely different. They operate in different fields and have different objectives. 10 W.P. No.13579/2008
Whereas the object of criminal trial is to inflict appropriate punishment on an offender, the purpose of enquiry proceedings is to deal with the delinquent departmentally and to impose penalty in accordance with the service Rules. 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. Even 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 whereas in the departmental enquiry, penalty can be imposed on the delinquent on a finding recorded on the basis of 'preponderance of probability'. Acquittal by the Court of competent jurisdiction in a judicial proceeding does not ipso facto absolve the delinquent from the liability under the disciplinary jurisdiction of the authority. This what has been considered by the High Court in the impugned judgment in detail and needs no interference by this Court."
16. In view of the aforestated facts and law, there is no merit in the petition. The petition is dismissed accordingly.
(Nandita Dubey) Judge SMT. GEETHA NAIR 19/01/2022 gn 14:32:08 +05'30' 2022.01.19