Central Administrative Tribunal - Chandigarh
Janender Kumar vs Ut Police Chandigarh on 4 October, 2017
(OA No. 483/C 201P4
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CENTRAL ADMINISTRATIVE TRIBUNAL
CHANDIGARH BENCH
Order reserved on: 29.08.2017
ORIGINAL APPLICATION NO. 483/CH/2012
Chandigarh, this the . L# day of October, 2017
CORAM: HON'BLE MR. SANJEEV KAUSHIK, MEMBER {J) &
HON' BLE MR. UDAY KUMAR VARMA, MEMBER {A}
Janender Kumar son of late Sh. Dharam Singh working as ASI
(CP No. 1023), CID, U.T. Chandigarh.
. APPLICANT
(Argued by: Shri D.R. Sharma , Advocate)
VERSUS
1. Union Territory, Chandigarh through its Home Secretary.
2. The Inspector General of Police, U.T. Chandigarh.
3, The Senior Superintendent of Police, U.T. Chandigarh.
.. RESPONDENTS
(By Advocate: Shri Aseem Rai}
ORDER
Mr. Sanjecv Kaushik, Member (J} The applicant has challenged the impugned order dated 17.5.2011 (Annexure A-1}, whereby he has been awarded the punishment of censure and the order dated 17.10.2011 (Annexure A-2), vide which his appeal against the order of punishment of censure has been returned in original with the remarks that "as per the provisions contained in PPR 16.29 & 16.30, no appeal hes against the punishment of Censure before the Appellate Authority".
2. Brief factual matrix which is necessary for final adjudication of the matter is that the applicant while working as Head a ho (OA No. 483/CH/2012 } Constable an FIR No. 386 dated 3.11.2003 under Section 224/223 of IPC was registered alongwith other co-employees of Chandigarh Police when they were deputed to escort three prisoners for medical treatment to PGIMER, Chandigarh, 2 prisoner to General Hospital, Sector 16 Chandigarh and 2 prisoners to Govt. Medical College and Hospital, Sector 32, Chandigarh. Applicant (Janender Kumar), Head Constable alongwith two other Head Constables were deputed to escort three prisoners to PGI for medical treatment. Out of three prisoners, one prisoner namely Amit Kumar @ Bengali managed to escape from the custody of applicant and one Constable Jai Pal. Simultaneously, a regular inquiry was also initiated against the applicant and one Constable, Jai Pal under Rule 16.24 of the Punjab Police Rules (PPR) ( for short PPR) vide order dated 10.11.2003. Inspector, Maghi Ram was appointed as an Inquiry Officer and subsequently on administrative ground the inquiry was transferred to Inspector Prem Nath. This fact has not been disputed by the applicant. On 5.10.2004, Inquiry Officer, while submitting inquiry report held the applicant and Constable Jai Pal guilty of the charge. The applicant was served with a show cause notice on 4.1.2005 (Annexure A-S}) for the proposed punishment of stoppage of four increments with permanent effect. The applicant submitted his reply on 22.1.2005 (Annexure A-6)}. The applicant was also convicted in a Criminal case vide order dated 14.3.2007 {Annexure A-7}. Based on his conviction, the applicant was dismissed from service vide order dated 31.1.2008. The appheant challenged his conviction before the Additional Sessions Judge, Chandigarh by filing Criminal Appeal No. 50 of L ta (OA No. 483/CH/2012) 4.42007, wherein the applicant was acquitted vide order dated 24.5.2010,. After his acquittal in criminal case, the applicant was reinstated in service vide order dated 27.10.2010, (Annexure A-8}, without prejudice to the outcome of departmental action. It is further ordered that the period from the date of his dismissal from service i.e. 31.1.2008 till his joining is treated as leave of the kind due. By impugned order dated 17.5.2011, respondent no. 3 reduced the proposed punishment of stoppage of four increments with permanent effect to the extent of censure.
3. Aggrieved against the above order, the applicant submitted representation to respondent no, 2, which was returned in original vide order dated 17.10.2011 with the rernarks that there is no provisions in PPR for maintaining appeal against the punishment of censure. [t is out of place to mention here that vide order dated 14.7.2011, the suspension period of the applicant from 10.11.2003 to 10.38.2004 was ordered to be treated as duty for all intents and purposes and further the applicant was held entitled to full pay and allowances for the period which he had already drawn subsistence allowance during the suspension period. Hence this Original Application (O.A.).
4 Respondents, while resisting the claim of the applicant by filing detailed written statement, did not dispute the factual accuracy of the facts. However, they submitted that although the applicant has been acquitted in a criminal case by the Court of Sessions Judge, but in the departmental proceeding, the Competent Authority after concluding the enquiry has inflicted the punishment of censure, which as per law they can do.
BO Se 4 (OA No. 483/CH/2012 )
5. We have heard Sh. D.R. Sharma, learned counsel for the applicant and Sh. Aseem Rai, learned counsel representing the Chandigarh Administration.
6. Shri Sharma, learned .counsel for the applicant vehernently argued that impugned order inflicting the punishment of censure despite the fact that the applicant has already been acquitted in a criminal case on the same set of charge, is arbitrary and liable to be quashed and set aside. To substantiate his plea, he urged that once the applicant has not been found blamewerthy by the Criminal Court where same set of charge has been levelled against him, then in a departmental proceedings, for the same set of charge, he cannot be held guilty and punishment cannot be imposed even though minor. He also argued that impugned order is also liable to be set aside because while inflicting the punishment the Disciplinary Authority (DA} has also not recorded any finding, holding the applicant guilty, rather he recorded a finding that the plea raised by the applicant in a departmental inquiry is convincing and, therefore, by taking a lenient view the DA inflicted the punishment of censure. He urged that once the DA has recorded a finding not holding him guilty despite his acquittal in a criminal case on same set of charge, then he cannot inflict any punishment, therefore, the impugned order be also quashed and set aside.
7. Per contra, Shri Aseem Rai, learned counsel representing the respondents vehemently opposed the prayer and submitted that there is no bar to held departmental enquiry after acquittal of delinquent employee in a criminal case. He submitted that the nature and scope of a criminal case are different fram those of a Nop (OA No. 483/CH/2012 } departmental proceeding and order of acquittal, therefore, cannot conchide the departmental proceeding. The standard of proof required in these proceedings is also different from a criminal case. While in departmental proceedings, the standard of proof is one of preponderance of probabilities in a criminal case and the charge has to be proved by the prosecution beyond the reasonable doubt. Therefore, he argued that while inflicting the punishment of censure, the DA has also to consider the judgment passed by the Criminal Court and thus has passed the order of censure.
8. The question of considering reinstatement, after decision of acquittal by competent criminal Court arises only if the dismissal from service was based on conviction by the Criminal Court in view of the provisions of Article 311 (2} (b) of the Constitution of India. In acase, where inquiry 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, departmental inquiry can be held, the reason being that the standard of proof required in a departmental inquiry and that ina criminal case are altogether different. In a criminal case, standard of proof required is beyond reasonable doubt while in a departmental inquiry it is the preponderance of probabilities that constitutes the test to be applied. In a Nelson Motis Versus Union of India & Another., - AIR 1992 SC 1981, the Lordships have held that acquittal in acriminal cannot be held te be a bar to held departmental enquiry for the same misconduct for the reason that in a criminal trial, standard of proof is different as the case is to be proved beyond reasonable doubt, but in the ° (OA No. 483/CH/2012 ) departmental proceeding, such a strict proof of misconduct is not required, This view has subsequently been follawed in the case of State of Karnataka & Anr. Vs. T Venkataramanappa { 1966) (6) SCC 455. In case of State of Andhra Pradesh Vs. K. Allabaksh, (2000) (10) SCC 177 their Lordship used the words "that acquittal of a respondent shall not be construed as a clear exoneration of the respondent, for the allegation call for departmental proceedings, if not already initiated, against him." This view has subsequently been dealt with in depth by three judges Bench of Hon'ble Supreme Court in case of Ajit Kumar Nag Vs. General Manager (PJ) Indian Oi] Corporation Ltd., (2005) (7) SCC 764. In case of Capt. M. Paul Anthony Vs. Bharat Gold Mines Ltd., AIR 1999 SC 1416 the Lordship have held that there can be no bar for continuing both the proceedings simultaneously. This view has consistently been followed in subsequent decision. In Union of India & Ors. Vs. Naman Singh Shekhawat - (2008) (4) SCC 1 this view has been affirmed. Therefore, it can be safely recorded herein that initiation of departmental proceeding should be bona fide and must be reasonable and fair. In case of Pandiyan Roadways Corpn. Ltd. Vs. N. Balakrishnan, {2007) 9 SCC 755 the Lordships while considering the law on the subject starting from Capt M. Paul Anthony's (supra) case and the subsequent law have recorded their finding which reads as under:-
"There are evidently two lines of decisions of this Court operating in the field. One being the cases which would come. within the purview of Capt. M. Paul Anthony v. Bharat Gold Mines Ltd {supra}, and G.M. Tank v, State of Gujarat, (2006) 3 SCC C446. However, the second Hne of decisions show that an honourable acquittal in the crimimal case itself may not be held to be determinative in respect of order of punishment meted out to the delinguent officer, inter alia, when: (i) the erder of acquittal has (OA No. 483/CH/2012 3 not been passed on the same set of facts or same set of evidence; (il) the effect of difference in the standard of proof in a criminal trial and disciplinary proceeding has not been considered (See:
Commr. of Police v. Narender Singh, {supra} or: where the delinquent officer was charged with something more than the subject-matter of the criminal case and/or covered by a decision of the civil court (See: G.M. Tank, {supra}, Jasbir Singh v. Punjab & Sind Bank, (2007) 1 SCC 566; and Noida Entrepreneurs' Assn. v. Noida, (2007) 10 SCC 385, para 18)...000.. We may not be understood to have laid down a law that in all such circumstances the decision of the civil court or the criminal court would he binding on the disciplinary authoritics as this Court in a large number of decisions points out that the same would depend upon other factors as well. (See: e.g. Krishnakali Tea Estate (supra); and Manager, Reserve Bank of India v. S. Mani, {2005} 5 SCC 100). . Each case is, therefore, required to be considered on its own facts."
9. Thus, there can be no doubt regarding the settled legal proposition that as the standard of proof in both the proceedings is quite different, and the termination is not based on mere conviction of an employee in a criminal case, the acquittal of the employee in criminal case cannot be the basis of taking away the effect of departmental proceedings, nor such an action of the department can be termed as double jeopardy. After acquittal in a criminal case what has to be kept in mind in departmental proceeding is that whether the charges are identical and if the charges are same, then while inflicting the punishment in a departmental proceeding in loss of confidence in an employee the DA has to consider the finding recorded by the Criminal Court. In case of Indian Airlines Ltd., Vs. Prabha D. Kanan, AIR 2007 SC 548, their Lordship have held that "loss of confidence cannot be subjective but there must be objective facts which would lead to a definite inference of apprehension in the mind of the employer regarding trustworthiness of the employee and which must be alleged and proved."
(OA No. 483/CH/2012 }
10. In the case in hand, it is not disputed by the learned counsel for the parties that on the same allegation/Charge, the applicant was subjected to a departmental proceeding and simultaneously a riminal case was registered against the applicant as one prisoner was escaped from the custody of applicant and one Constable Jai Pal when they were escorting the prisoners for medical checkup to PGIMER. The Criminal Court while acquitting the applicant has recorded a categorical finding that the applicant and the Jai Pal were not negligent in performing their duties . Concluding Paragraph 24 of the judgment passed by the id, Addl. Sessions Judge, Chandigarh reads as under:-
"24. In these circurnstances, this court is of the considered opinion that it cannot at all be said that accuse Janender Kumar and Jai Pal were negligent in performing their duties when the accused Amit Kumar escape from the toilet. on fourth floor in PGI and nobedy could think that one would escaped from piper from fourth floor of the building. Benefit of doubt surely goes to be accused. So, in these circumstances, the appeals stand allowed. The impugned judgement and order of sentence against the appellants ig set aside and both the appellants are acquitted of the charge. File of the lower Court be returned. Appeal file be consigned."
11. While we peruse the impugned order, it is manifestly clear that for the same very set of charge a departmental inquiry was also initiated and vide impugned order, the DA found that the plea raised by the apphcant was convincing, but inflicted the punishment of censure instead of stoppage of four increments with permanent effect for which he was served with a show cause notice.
The relevant observations reads as under:-
"3, Whereas, Punishing Authority agreeing with the Enquiry Officer issued a show cause notice to HC Janinder Kumar No. 1860/CP { new No. 3695/CP) proposing the punishment of stoppage of our increments with permanent effect vide No. 33- 34/UT/RD/Des/SSP dated 04.01.2005. HC Janinder Kumar No. 1860/CP (new NO. 3695/CP submutted the reply of the same within the stipulated time.
L % 6 SO (OA No. 483/CH/2012 } +. Ihave gone through all the facts and circumstances viz-a-viz reply to the show cause notice and various pleas taken by HC Janinder Kumar, NO. 1860/CP (mew No. 3695/CP), in person, in OR held on 183.2011 which were found somewhat convincing. Hence, by taking a lenient view, the proposed punishment of stoppage of our increments with permanent effect, is reduced to the extent of Censure,"
Ld
12. In the light of the aforementioned judicial pronouncements, and the charges levelled against the applicant in the departmental as well as in the criminal case, we can safely conclude that there is not even iota of difference in the charges levelled in two different proceedings. In one proceeding, in the Criminal proceeding negligent has not been proved against the applicant and in departmental proceeding even the DA did not bother to record any finding of negligence against the applicant while inflicting the minor punishment of Censure. Therefore, we are of the considered view that the impugned orders suffer from the legal infirmity of being non-teasoned and non-speaking orders and cannot, therefore, be allowed to be sustained. Moreover, there is na finding of negligence recorded by the DA against the applicant. So when the charges are identical then the DA ought to have restrained himself from inflicting any punishment. Accordingly, the OA is allowed and the impugned order is hereby quashed and set aside, OR, a cs a oe --
{UDAY KUMAR VARMA} iSANJEEV KAUSHT) MEMBER (A) MEMBER {J} Dated: 4 .10.2017 SK?