Tripura High Court
No.9132232519 vs Union Of India on 7 July, 2020
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HIGH COURT OF TRIPURA
AGARTALA
WP(C) 176 of 2015
No.9132232519,
Ct./GD, Somnath Singh,
son of Ranbir Singh Kushwah,
resident of Village & PO: Mahadawa,
PS: Roan, District: Bhin (Madhya Pradesh)
PIN: 477335
----Petitioner(s)
Versus
1. Union of India,
represented by the Secretary,
Ministry of Home Affairs, New Delhi
2. The Inspector General of Police,
Central Reserve Police Force,
Eastern Sector/Western Sector, C.R.P.F,
Calcutta, West Bengal
3. The Deputy Inspector General of Police,
Central Reserve Police Force, Agartala (OP),
Nagpur-19, Maharashtra
4. The Commandant, 97 Bn. C.R.P.F, Narsingarh,
Agartala, Tripura West
5. The Deputy Commandant, I.D. Sarma,
97 Bn. C.R.P.F, (Enquiry officer),
Narsingarh, Agartala, Tripura-15
6. The Deputy Inspector General of Police,
Central Reserve Police Force, Group Centre,
Range Pune, Maharashtra-411001
7. Commandant, 97 Bn. Central Reserve Police Force,
GC, Avadi, Chennai, Tamilnadu- 600065
---- Respondent(s)
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For Petitioner(s) : Mr. K. Nath, Adv.
For Respondent(s) : Mr. H. Deb, A.S.G.
Date of hearing : 02.12.2019 & 25.02.2020 *
Date of pronouncement : 07.07.2020
Whether fit for reporting : YES
HON‟BLE MR. JUSTICE S. TALAPATRA
Judgment & Order
By means of this writ petition, the petitioner has challenged the order of his dismissal under No.P.VIII.1/14- EC-ii/97 Bn. dated 26.08.2014 (Annexure-P/14 to the writ petition), the report of the inquiry officer dated 21.12.1997 (Annexure-5 to the writ petition) and the order of the appellate authority [the Deputy Inspector General Range, Pune] dated 17.07.2015 (Annexure-P/15 to the writ petition).
[2] On 08.07.1996 while the petitioner was working as a constable in the Central Reserve Police Force (CRPF, in short) being posted at 97 Bn. CRPF at Dharmanagar was entangled in a crime which was prosecuted on 08.07.1996. On that day, at about 2100 hours there was an incident of firing resulting in the death of one Hawilder of Tripura Police, namely Sukumar Ghosh. The petitioner and the *Spoken to minutes Page 3 of 50 Commander of their company namely, Rambir Singh were implicated in the commission of murder, attempt to murder and unauthorized possession of arms. After the investigation was completed, the final police report was filed and the petitioner was sent up for facing the trial. After commitment, the trial commenced in the court of the Additional Sessions Judge, North Tripura, Dharmanagar, as he then was. The Sessions Trial being case No.10 (ANTK) of 1998 got disposed of by the judgment dated 20.12.2000. All the accused persons including the petitioner were convicted under Section 302 read with Section 34 of the IPC and under Section 323 read with Section 34 of the IPC and they were accordingly sentenced.
[3] The petitioner being aggrieved by the said judgment of conviction had preferred an appeal being Criminal Appeal No.03 of 2001 in the Gauhati High Court which had the territorial jurisdiction at that time over the entire state of Tripura. The said appeal was allowed by the judgment and order dated 02.04.2008 (Annexure-P/2 to the writ petition) setting aside the order of conviction and acquitting the petitioner from the charges. In the said Page 4 of 50 judgment, it has been categorically observed by the Gauhati High Court as follows:
"None of the prosecution witness deposed that accused Somnath Singh was seen with the main accused Rambir Singh or other co-accused, let alone his taking active participation in the scuffling with the policemen PWs 1, 2 and 3 and taking part in the firing in the Town Hall on the date of occurrence."
[4] It may be noted that by the judgment dated 31.07.2003 (Annexure-P/1 to the writ petition) Gauhati High Court disposed of the said criminal appeal by setting aside the judgment of conviction dated 20.12.2000 and acquitting all the appellants including the petitioner. From the said judgment dated 02.04.2008, it appears that on appeal the apex court set aside the said judgment dated 31.07.2003 and remitted the matter for re-hearing by the Gauhati High Court. By the judgment dated 02.04.2008, the said appeal was finally disposed of with the observation as noted before, so far the petitioner is concerned. Needless to say that the Guahati High Court had further held that the prosecution had indeed failed to prove the case against Somnath Singh (the accused) "beyond Page 5 of 50 reasonable doubt". As consequence thereof, the petitioner was set at liberty.
[5] A parallel and independent departmental inquiry was set in against the petitioner and others by the memorandum under No.P.VIII-5/96/97.ESTT.II dated 07.03.1997 (Annexure P/3 to the writ petition) and the following charges were brought against them by the Commandant, 97 Bn. CRPF:
ARTICLE - I A/97 Bn. CRPF was deployed in Dharmangar, Tripura for Law and Order duties. The Copy HQr with two Platoons was located in BBI, Hostel, Dharmanagar.
On 08-07-96 No.850792567 L/NK/GD G.C Sahu of A/97 Bn CRPF, was Guard Commander of A/97 Bn. Kote guard at about 2030 Hrs on 08-07- 96 no. 850792567 L/NK/GD G.C. Shau saw No. 891292308 Ct/GD Vedmoni Mishra, No. 913232519 Ct/GD Somnath Singha and No.911241432 Ct/GD Raj Kumar consuming liquor in Coy premises, while detailed on Quarter Guard duty.
No.891292308 Ct/GD Vedmoni Mishra was detailed for an important, sensitive duty from 08- 07-96 to 09-07-96. He was detailed on A/97 Quarter Guard duty. Keeping in mind the insurgency arose area, it was his prime duty to be extra alert and duty bound and in no case leave the duty point area. But despite above fact No.891292308 Ct/GD Vedmoni Mishra in total violation of security/Standing Orders, consumed liquor while on duty thereby committing an act of serious misconduct in his capacity as a member of the force which is punishable under Section 11(1) of CRPF Act, 1949 read with Rule 27 of CRPF rules, 1955.
ARTICLE-II
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The aforesaid No.891292308 Ct/GD
Vedmoni Mishra of A/97 Bn. CRPF was detailed for the all important and sensitive A/97 Quarter Guard duty from 08-07-96 to 09-07-96. The above duty was all the more sensitive as the area was insurgency prone, and all personnel were duty bound to be extra alert. Despite this, the aforesaid no.891292308 Ct/GD Vedmoni Mishra of A/97 Bn. CRPF left his duty point at Quarter Guard duty around 2040 hrs on 08-07-96, in total violation of security/standing Orders and un-authorisedly and without permission from OC-A/97 Bn. CRPF thereby committing serious disobedience of orders in his capacity as a member of the force which is punishable under Section 11(1) of CRPF Act, 1949 read with Rule 27 of CRPF rules, 1955.
ARTICLE -III
The aforesaid No.891292308 Ct/GD
Vedmoni Mishra of A/97 Bn. CRPF was detailed for the all important and sensitive A/97 Bn. CRPF Quarter Guard duty from 08-07-96 to 09-07-96. The above duty was all the more sensitive as the area was insurgency prone and all personnel were duty bound to be the extra alert. Despite this, the aforesaid No.891292308 Ct/GD Vedmoni Mishra left his duty point on 08-07-96 around 2100 Hrs alongwith No.911241432 Ct/GD Raj Kumar and No.913232519 Ct/GD Somnath Singh and under influence of liquor proceeded to Town Hall, Dharmanagar which is around 100 yards from A/97 Bn. Coy HQr. A cultural programme was going on and the entry was through tickets. The aforesaid No.891292308 Ct/GD Vedmoni Mishra alongwith the other two Ct/GD Raj Kumar and Somnath Singh forcible of tried to enter the Town Hall Dharmanagar without purchasing tickets. The Civil Police on duty at Town Hall stopped them from entering without tickets upon which the aforesaid Ct/GD entered into heated arguments with the Civil Police and later engaged in a scuffle with them thereby committing an act of serious misbehaviour in his capacity as a member of the force which is punishable under Section 11(1) of CRPF Act, 1949 read with CRPF rules, 1955.
ARTICLE-IV The aforesaid No.891292308 Ct.GD Vedmoni Mishra of A/97 Bn. CRPF was detailed for the all important and sensitive A/97 Bn. CRPF Quarter Page 7 of 50 Guard duty from 08-07-96 to 09-07-96. Despite this, Ct/GD Vedmoni Mishra left his duty point on 08-07-96 around 2130 Hrs along with Ct/GD Raj Kumar and Ct/GD Somnath Singh and rushed back to the Town Hall aread, Dharmanagar with his personal weapon. The aforesaid Ct/GD was not authorized to leave his duty point and proceed with his personal weapon to Town Hall areas. He thereby committed serious remissness in the discharge of his duties in his capacity as a member of the force which is punishable under Section 11(1) of CRPF, Act, 1949 read with Rule of CRPF rules, 1955.
ARTICLE- V
A/97 Bn. CRPF was deployed in
Dharmanagar, Tripura for Law and Order duties. The Coy HQr with two Platoons was located in BBI, Hostel, Dharmanagar.
On 08-07-96 no.850792567 L/NK/GD/G.C Sahu of A/97 Bn. was guard Commander of A/97 Bn. Kote guard At about 2030 Hrs on 08-07-96, No.850792567 L/NK/GD G.C. Sahu, No.911241432 Ct/GD Raj Kumar, No.913232519 Ct/GD Somnath Singh and No.891292308 Ct/GD Vedmoni Mishra consuming liquor in Coy premises, while detailed on Quarter Guard duty.
No.911241432 Ct/GD Raj Kumar was detailed for an important, sensitive duty from 08- 07-96 to 09-07-96. He was detailed on A/97 Bn. Quarter Guard duty. Keeping in mind the insurgency prone area, it was his prime duty to be extra alert and duty bound and in no case leave the duty point area, but despite above fact No.911241432 Ct/GD Raj Kumar, in total violation of security/standing Orders, consumed liquor while on duty thereby committing an act of serious misconduct in his capacity as a member of the force which is punishable under Section 11(1) of CRPF Act, 1949 read with Rule 27 of CRPF rules, 1955.
ARTICLE-VI The aforesaid No.911241432 Ct/GD Raj Kumar of A/97 Bn. CRPF was detailed for the all important and sensitive A/97 Bn. Quarter Guard duty from 08-07-96 to 09-07-96. The above duty was all the more sensitive, as the area was insurgency prone, and all the personnel were duty bound to be extra alert. Despite this, the aforesaid Page 8 of 50 No.911241432 Ct/GD Raj Kumar of A/97 Bn. CRPF left his duty point at Quarter Guard duty around 2040 Hrs on 08-07-96, in total violation of security/standing orders and un-authiorisedly, and without permission from O.C A/97 Bn. thereby committing serious disobedience of orders in his capacity as a member of the force, which is punishable under Section 11(1) of CRPF, Act 1949 read with Rule 27 of CRPF Rules, 1955.
ARTICLE-VII The aforesaid No.911241432 Ct/GD Raj Kumar of A/97 Bn. CRPF was detailed for the all important and sensitive A/97 Bn. Quarter Guard duty from 08-07-96 to 09-07-96. The above duty was all the more sensitive, as the area was insurgency prone, and all the personnel were duty bound to be extra alert. Despite this, the aforesaid No.911241432 Ct/GD Raj Kumar left his duty point on 08-07-96 around 2100 Hrs along with No.891292308 Ct/GD Vedmoni Mishra No.913232519 Ct/GD Somnath Singh and under influence of liquor proceeded to Town Hall, Dharmangar which is around 100 yards from A/97 Bn. Coy Hqr. A cultural programme was going on and the entry was through tickets. The aforesaid No.911241432 Ct/GD Raj Kumar along with the other two Ct/GD Vedmoni Mishra and Somnath Singh forcible tried to enter the Town Hall Dharmanagar without purchasing tickets. The Civil Police on duty at Town Hall stopped them for entering, without tickets, upon which the aforesaid Ct/GD entered into heated arguments with the Civil Police and later engaged in a scuffle with them thereby committing and act of serious misbehavior in his capacity as a member of the force, which is punishable under Section 11(1) of CRPF Act, 1949 read with Rule 27 of CRPF Rules, 1955.
ARTILCE-VIII The aforesaid No.911241432 Ct/GD Raj Kumar of A/97 Bn. CRPF was detailed for the all important sensitive A/97 Bn. Quarter Guard duty from 08-07-96 to 09-07-96. Despite this, Ct/GD Raj Kumar left his duty point on 08-07-96 around 2130 Hrs along with Ct/GD Vedmoni Mishra and Ct/GD Somnath Singh and rushed back to the Page 9 of 50 Town Hall area, Dharmangar with his personal weapon. The aforesaid said Ct/GD was not authorized to leave his duty point, and proceed with his personal weapon to Town Hall area. He thereby committed serious remissness in the discharge of his duties in his capacity as a member of the force which is punishable under Section 11(1) of CRPF Act, 1949 read with Rule 27 of CRPF Rules, 1955.
ARTICLE-IX
A/97 Bn. CRPF was deployed in
Dharmanagar, Tripura for Law and Order duties. The Coy HQr with two Platoons was located in BBI, Hostel, Dharmanagar.
On 08-07-96 No.850792567 L/NK/GD/G.C Sahu of A/97 Bn. was guard Commander of A/97 Bn. Kote guard. Around 2030 Hrs on 08-07-96, No.850792567 L/NK/GD G.C. Sahu, No.913232519 Ct/GD Somnath Singh along with Ct/GD Vedmoni Mishra and Ct/GD Raj Kumar consuming liquor in Coy premises.
On 08-07-96, No.913232519 Ct/GD Somnath Singh was detailed as night patrolling sentry from 2000-2359 Hrs. in camp area. Keeping in mind, the insurgency prone area, it was the prime duty of Ct/GD Somnath Singh to be extra alert and duty bound. But despite above fact No.913232519 Ct/GD Somnath Singh in total violation of security/standing orders, consumed liquor while detailed for night duty, thereby committing an act of serious misconduct in his capacity as a member of the force which is punishable under Section 11(1) of CRPF Act, 1949 read with Rule 27 of CRPF Rules, 1955.
ARTICLE-X
The aforesaid No.913232519 Ct/GD
Somnath Singh of A/97 Bn. CRPF was detailed for night patrolling duty on 08-07-96 to from 2000- 2359 Hrs in Camp area. Despite this Ct/GD Somnath Singh left the camp area along with Ct/GD Vedmoni Mishra and Ct/GD Raj Kumar without permission of competent authority around 2040 Hrs on 08-07-96, in total violation of security/standing orders, un-authorisedly and without permission from O.C A/97 Bn. thereby committing serious disobedience of orders in his capacity as a member of the force which is Page 10 of 50 punishable under Section 11(1) of CRPF Act, 1949 read with Rule 27 of CRPF Rules, 1955.
ARTICLE-XI
The aforesaid No.913232519 Ct/GD
Somnath Singh of A/97 Bn. CRPF was detailed as night patrolling sentry in Camp area from 2000- 2359 Hrs. The above duty was all the more sensitive, as the area was insurgency prone and all personnel were duty bound to be extra alert. Despite this, No.913232519 Ct/GD Somnath Singh left the camp around 2100 Hrs on 08-07-96 along with Ct/GD Raj Kumar and Ct/GD Vedmoni Mishra and under the influence of liquor, proceeded to the Town Hall, Dharmangar which is around 100 yards from A/97 Coy HQr. A cultural programme was going on and the entry was through ticket. The aforesaid No.913232519 Ct/GD Somnath Singh along with other two Ct/GD Raj Kumar and Vedmoni Mishra forcibly tried to enter the Town Hall. The civil police on duty at Town Hall stopped them from entering without tickets upon which No.913232519 Ct/GD Somnath Singh entered into heated arguments with the Civil Police and later engaged in a scuffle with them, thereby committing an act of serious misbehavior in his capacity as a member of the force which is punishable under Section 11(1) of CRPF Act, 1949 read with CRPF Rules, 1955.
ARTICLE-XII
The aforesaid No.913232519 Ct/GD
Somnath Singh A/97 Bn. CRPF was detailed for night patrolling duty in Camp area on 08-07-96 from 2000-2359 Hrs. He along with Ct/GD Vedmoni Mishra and Ct/GD Raj Kumar, on 08-07- 96 around 2130 Hrs. rushed back to the town hall area Dharmanagar with his personal weapon. Ct/GD Somnath Singh was not authorized to leave the Camp area and proceed with the Weapon to Town Hall area. By doing so he committed serious remissness in the discharge of his duties in his capacity as a member of the force which is punishable under Section 11(1) of CRPF Act, 1949 read with Rule 27 of CRPF rules, 1955.
[6] As the petitioner disputed the charges as brought under Rule 27 of the CRPF Rules, 1955 and under Page 11 of 50 Section 11(1) of the CRPF Act, 1949 by the said memorandum dated 07.03.1997, the inquiry was instituted to afford the adequate opportunity to the petitioner. After the inquiry was complete, by the communication dated 23.12.1997 (Annexure-P/4 to the writ petition), the inquiry report was forwarded to the petitioner. Strange it is that the petitioner did not append the entire report only the pages containing the conclusion have been appended. This court deprecates strongly this kind of practice withholding the entire documents from the court, particularly when the inquiry report is challenged. It appears from the record that the inquiry officer reached the conclusion if the statements of all witnesses are appreciated, there is no proof which may establish the allegation against the petitioner and the other co-delinquent. The inquiry officer has observed in the said concluding part as follows:
"Out of these 13 witnesses only witness No.1 and 3 have stated some reasoning in their statements. Whatever the witness No.1 has stated the statement is only a reported statement of others as because he had taken over the charge of the Company as few days back. If the statement of witness No.3 is accepted as true than it is difficult to prove that he submitted any report in this respect or did produce any proof of taking liquor and therefore, it is clear that his statement is rest on mere suspicion that all three took liquor but his cannot be accepted as a proof. There is no Page 12 of 50 evidence on record that they went out with weapons and quarreled nor there is a report that all three went out without permission. Against this there is a statement of Guard Commander of the Unit that they were present and did not go anywhere. They did not take liquor."
[7] As corollary to the said observation, the inquiry officer (Mr. ID Sharma, Deputy Commandant, 97 Bn. CRPF) in his report dated 21.12.1997 has recorded his finding that all the delinquents who went out before the duty hours but it is difficult to prove the charge against them. Thereafter, he has abruptly observed that "the charges under section 11 of the CRPF Act, 1949 against the Ct. Vedmoni Mishra, Ct. Raj Kumar and Ct. Somnath Singh have been partially proved on the basis of fact."
[8] Thereafter, by the office order dated 14.04.1999 (Annexure-P/7 to the writ petition), the disciplinary authority having considered the inquiry report came to conclusion that there are just and fair reasons to disagree with the inquiry report. It has been further observed that no nexus between the fact as brought out during the inquiry and the conclusion as drawn by the Inquiry Officer. It is difficult to find the analogy. The disciplinary authority has come to his own conclusion. On the basis of the Page 13 of 50 assessment of evidence forming part of the records of the inquiry that all the charges levelled against the delinquents including the petitioner have been proved beyond any shadow of doubt. For purpose of better reference, his specific finding as recorded in the said order may be extracted as follows:
"06. Article -I of the charge against No.891292308 CT/GD Vedmani Mishra, Article V of the charge against No.911241432, CT/GD Raj Kumar and Article IX of charge against No.913232519 CT/GD Somnath Singh are identical charges wherein the delinquent have been charged for having consumed the liquor inside the camp while on duty.
07. As per extract of the duty register, delinquent CT. Vedmoni Mishra and delinquent CT Raj Kumar were on QG duty on the day of incident i.e. from 08-07-96 to 09-07-96 and the third delinquent CT Somnath Singh was on night patrolling duty S.W-1 then OC Insp. Rambir Singh in his statement and his reply to question No.5 of the E.O has stated that all the three delinquents had consumed liquor while on duty. Moreover they themselves had admitted on the spot inquiry that they did consume the liquor. Similarly, S.W.-3 No. 720540364 HC/GD Kameshwar Thakur who was CHM of the coy had also substantiated the charge that all the three delinquents had consumed the liquor. During check roll-call while those three delinquents joined the fall-in they were stinking with smell of the liquor. He in reply to question No.4 and 5 to E.O HC Kameshwar Thakur reaffirmed that all the three delinquents had consumed liquor while on duty.
08) E.O Shri I.D Sharma held the charge „NOT PROVED‟ on the basis that no medical report of delinquents having consumed the liquor is available. Having gone through the statements, it is established that circumstance were such that medical examination could not be conducted because, the delinquents had killed a civil police HC at town hall about 100 metre from coy location Page 14 of 50 in a shooting incident. To avoid further armed clash, coy was ordered to move out to other place immediately and simultaneously, after occurrence of this killing incident, senior officers kept on coming to site for making enquiries. So I agree with the statement of OC Coy and other that in such a situation they could not find time to get the delinquents medically examined specially when OC himself was taken into police custody.
09) In view of aforesaid evidence, I hold that Article -I against delinquent No.891292308 Ct Vedmoni Mishra, Article-V against delinquent No. No.911241432 Ct/GD Raj Kumar and Article IX of charge against delinquent No.913232519 Ct/GD Somnath Singh are fully „PROVED‟.
10) Article II, Article VI and Article X of charge against delinquent CT Vedmani Mishra, CT Raj Kumar and CT Somnath Singh respectively are identical where in they had left their duty place unauthorisedly at around 2040 hrs on 08.07.96.
S.W-1 then OC if Coy Insp. Rambir Singh in his reply to question No.6 of EO has categorically stated that all the three delinquents had left their respective duty places without permission and went outside the camp. Further S.W 2 SI Zainuddin who was the PI Comdr had also in his reply to question No.6 of the EO stated that all the three delinquents had gone out that evening to witness a cultural show in town hall. Moreover, it is also established that all the three delinquents got involved in a shooting incident with civil police deputed at town hall in which a Head Constable of Civil Police was killed and one of the delinquents CT Raj Kumar sustained a bullet injury in his hip. Obviously such things could not have happened had the delinquents not left their place of duty. In this connection statements and examinations of SW-1 then OC of coy Ins. Rambir Singh of SI Zainuddin PI Comdr of No.720540364 HC/GD Kameshwar Thakur, CHM of the coy their own admission on spot enquiry by Sri Arvinder Singh O/C and Comdt. 144 Bn (114 Bn.) CRPF as mentioned by Shri Arvinder Singh are relevant.
11) Hence I find that article -II of Charge against No.891292308 Ct/GD Vedmani Mishra, article VI of charge against No.911241432 Ct/GD Raj Kumar and article X of charge against No.913232519 Ct/GD Somnath Singh stand fully „PROVED‟.
12) Article -III, Article VII and Article XI of charges against No.891292308 CT/GD Vedmani Page 15 of 50 Mishra, No.911241432 Ct/GD Raj Kumar and No.913232519 Ct/GD Somnath Singh respectively are identical wherein on 08.07.96 at about 2100 hrs, all the above three delinquents under the influence of liquor engaged in a scuffle with Tripura police Personnel at town hall Dharmanagar.
13) It has already been established in previous articles of charge that all the three delinquents had consumed liquor while on duty. Accordingly it has also been proved that after consumption of liquor all the three delinquents left their place of duty unauthorisedly. Now after leaving the duty where these persons could have gone at 2100 hrs in night when just 100 yards away a cultural show was being displayed. Apparently, all the three delinquents went to town hall to witness the cultural show. The entry was by ticket only but these delinquents tried to enter the hall forcibly without tickets and were prevented by local police personnel deployed on duty at town hall. Upon this first the delinquents entered in heated arguments with police on duty and later engaged into scuffle. This fact is further substantiated by SW-1 then OC of Coy Ins. Rambir Singh in his statement. Not only this, he reported this incident to Comdt also through a wireless message. The statements of S.W. 2 and S.W.3 are also relevant in proving this article of charge. Above all, this scuffle further led to firing by the delinquents with their service rifles killing one Head Constable of Tripura Police on the spot who was deployed at Town Hall and in exchange one of the delinquents CT Raj Kumar also sustained a 9 mm bullet injury in his hip. This is supported by the statements/examination of S.W-1 and S.W-2, S.W.-3 and by statement of Shri Arvinder Singh A/C and own admission by the delinquent that he wanted to go on sick report for treatment of bullet injury. Moreover, almost all the S.W have stated that they had heard sound of firing from Town Hall. So it is established that all the three delinquents involved in a scuffle with Tripura Police men on duty at Town Hall at about 2100 hrs on 08.07.96 which further lead to shooting and killing of one Head Constable of Tripura Police on the spot.
14) Hence Article-III of charge against delinquent No.891292308 Ct/GD Vedmani Mishra, Article - VII of charge against delinquent No.911241432 Ct/GD Raj Kumar and article XI of charge against No.913232519 Ct/GD Somnath Singh stand „PROVED‟ without any shadow of doubt.
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15) Article -IV, Article-VIII and Article-XII of charges against No.891292308 Ct/GD Vedmani Mishra, No.911241432 Ct/GD Raj Kumar and No.913232519 Ct/GD Somnath Singh are identical wherein the delinquents took their personal weapons and rushed back to Town Hall.
16) In this context statements/examination of S.W-1 and S.W-2 and S.W-3 and that of Shri Arvinder Singh A/C are relevant. S.W-1 Insp. Rambir Singh who was commanding the coy at the time of incident had categorically stated that all the three delinquents were involved in shooting incident at about 2100 hours at Town hall on 08.07.96. It is evident that they had taken their weapons, otherwise, without weapons how they could get involved in firing. Insp. Rambir Singh further communicated the fact in his signal to Comdt. also. In his examination by EO he had further stated that delinquents had fired four rounds at town hall which were later made good from sister CRPF unit. All the witnesses have further admitted that they had heard the sound of firing. S.W-3 HC Kameshwar Thakur when made the coy fall-in stated that he saw all the three delinquents came quietly from the behind and joined the rest of the man in fall-in. All the three delinquents had their personal weapons with them and appeared scared. They were sweating badly. SW-2 SI Zainuddin also in his statement and further in his reply to question No.6, 7 and 9 to EO stated that the delinquents had gone out and fired. It is evident that when they went out and fired, they had their weapons with them otherwise how could they fire. Similarly, as explained by SW- 2 in his reply to question No.9 to EO one of the delinquents CT Raj Kumar had reported to his PI. Hav. Amin Chand that he wanted to go hospital for treatment of bullet injury. This fact was reported by SW-2 to his OC and also Comdt. 114 Bn. CRPF who had come there hearing the incident of shooting. Similarly, SW-3 HC, Kameshwar Thakur to his statement stated that he had given a written report of the facts of incident clearly mentioning that all the three delinquents had fired with their weapons on Tripura Police on duty at Town Hall consequently killing one of Tripura Police Hav. on spot and in exchange delinquent CT Raj Kumar also sustained one 9mm bullet injury in his hip. One fired case of 9 mm bullet was also recovered at the site of incident. He has further stated that one of the delinquents CT Somnath Singh had stripped off his rifle and cleaning material was Page 17 of 50 also lying near the rifle. It is evident that rifle was used in firing incident and delinquent was trying to clean it to wipe out the smell and burnt propellant charges from the barrel.
17)From the above fact, it becomes established that all the three delinquents had taken their personal weapons out of camp to town hall where they got involved in a firing incident in which one Head Constable of Tripura Police was killed on spot and delinquent CT Raj Kumar in exchange got a bullet injury in his hip.
18) So I find that charge-IV against delinquent No.891292308 Ct/GD Vedmani Mishra, Charge- VIII against No.911241432 Ct/GD Raj Kumar and Charge XII against No.913232519 Ct/GD Somnath Singh stand fully „PROVED‟."
[9] The petitioner had challenged the said order of dismissal dated 14.04.1998 and the order dated 07.11.1998 which was passed in the appeal filed by the petitioner against the order dated 14.04.1998, by filing a writ petition being WP(C) 40 of 2004 in this court. By the judgment and order dated 26.09.2013 (Annexure-P/9 to the writ petition), the said writ petition was disposed of, observing that the petitioner was denied his indefeasible right of making effective representation against the reassessment of the evidence or the note of disagreement as recorded by the disciplinary authority and based on which the dismissal order has been passed. Page 18 of 50 [10] Having observed thus, the order dated 14.04.1998 and 07.11.1998 were interfered with and set aside. The disciplinary authority was directed to recommence the proceeding after furnishing a copy of the show cause notice dated 11.04.1998 to the petitioner by affording him adequate time for making an effective reply and thereafter, on due consideration, to pass the reasoned order. The petitioner was also given liberty to take all grounds including the ground assigned in the said writ petition. It appears from the records that pursuant to the said order, the petitioner was reinstated by the office order dated 31.05.2014 (Annexure-P/10 to the writ petition). Consequential orders were as well passed in respect of salary and allowance of the petitioner. Thereafter, a fresh show cause notice was issued on 02.07.2017 (Annexure P/12 to the writ petition) to the petitioner giving all the reasons of disagreement and for coming to a different finding purportedly based on the evidence recorded in the inquiry proceeding.
[11] By that show cause, it has been contended that articles of charge IX, X, XI, XII have been proved against Page 19 of 50 the petitioner. The disciplinary authority has recorded his analysis and assessment of the evidence and the findings against each of the charge separately. The petitioner filed the representation against the said show cause and stated that all the four charges as found to be proved in the inquiry proceeding were held by the inquiry officer as not proved. The cause and reasons as assigned by the inquiry officer have been discarded by the disciplinary authority referring to the settled position of law in the field. The petitioner had urged for exoneration. However, by the office order dated 26.08.2014 (Annexure P/14 to the writ petition) the disciplinary authority, having due regard to the representation filed by the petitioner, has held that the petitioner is not a fit person to be retained in a disciplined force like CRPF, inasmuch as the petitioner along with other delinquents had shifted the rifles and it has been revealed that the delinquents consumed liquor and left the company‟s campus without permission of the competent authority, and further got involved in the said incident occurred on 08.07.96.
Page 20 of 50[12] Thus, the petitioner has been dismissed from the service under Section 11(1) of the CRPF Act, 1949 read with Rule 27 of the CRPF Rules, 1955. The period of suspension from 14.04.1998 to the date of dismissal has been declared to be treated as the period not spent on duties for all purposes and the petitioner will not get pay and allowances for the intervening period under the provision of FR 54(1) and therefore, the consequential orders were passed.
[13] The petitioner again filed an appeal against the said order of dismissal dated 26.08.2014 to the Deputy Inspector of General (Range) CRPF, Pune. The said appeal was rejected by the appellant authority by the order dated 17.07.2015 (Annexure- P/15 to the writ petition) [14] The respondents filed their reply traversing the averment of the writ petition as well as by placing their narratives on 06.10.2015. The respondents have categorically stated that all reasonable opportunities were afforded to the petitioner and the direction of this court for giving him the fresh opportunity for filing the representation was also provided and thereafter taking the Page 21 of 50 objection as reflected in his representation, the evidence was appreciated afresh and the report of the Inquiry Officer was discarded. There is no infirmity in the order of dismissal dated 14.04.1998 nor in the order dated 07.11.1998 as passed by the appellate authority. All pre- requisites for inflicting penalty on the petitioner were followed as required by Rule 27 of the CRPF Rules, 1955. As the petitioner in the writ petition has raised the plea that no person was allowed to assist the petitioner in the departmental inquiry, the petitioner was seriously prejudiced. It has been stated that in Rule 27 of the CRPF Rule, 1955 no where it has been made mandatory to ask the delinquent whether he needs assistance in the departmental inquiry.
[15] The respondents have categorically stated in that regard that the direction of this court issued in WP(C)No.40/2004 by judgment dated 26.09.2013 has been complied with to its true spirit and in that regard necessary records have been produced. The respondents have categorically contended that the penalty that has been awarded to the petitioner is commensurate to the gravity of Page 22 of 50 misconduct and hence it cannot be questioned on the ground of proportionality. The respondents have subsequently filed an additional affidavit, when the present writ petition was allowed to be amended. That affidavit has exclusively dealt with the analogy of the appellate authority as reflected in the order dated 17.05.2015. [16] Mr. K. Nath, learned counsel appearing for the petitioner has submitted that the charges in the departmental proceeding and in the criminal trial are formed on the same set of facts and evidence. There is no distinguishable feature even the witnesses are common. He has further submitted that the articles IX, X XI and XII are the charges concerned with the petitioner viz. for consumption of liquor while detailed in quarter guard, leaving the company line unauthorisedly, misbehaving with the members of the force under the influence of liquor and of being engaged in a scuffle with the personnel of Tripura Police at Town Hall, Dharmanagar. That apart, he had taken out his personal weapon on the day of occurrence i.e. 08.07.1996 and rushed back to the town hall without command of the competent authority. Other articles are in Page 23 of 50 respect of the other four delinquents in the common proceeding.
[17] Mr. Nath, learned counsel has made an attempt in defence of the inquiry report as submitted by the Deputy Commandant by stating that the inquiry was conducted in strict observance of Rule 27 of the CRPF Rules. In the course of the inquiry, 12 listed witnesses were examined. One Arvind Kumar, Deputy Commandant was also examined. According to Mr. Nath, learned counsel till the alleged incidence, the service career of the petitioner remained unblemished. Mr. Nath, learned counsel has further contended that the petitioner was not provided with a defence assistant to put up his defence appropriately. The petitioner had no expertise, the minimum knowledge and the general skill to carry out the defence against those charges. Even examination of Arvind Singh, Deputy Commandant was so sudden and without any notice to the petitioner. Sudden examination of Arvind Singh, the Deputy Commandant caused serious prejudice to the petitioner. [18] Mr. Nath, learned counsel appearing for the petitioner has referred the non-supply of the full inquiry Page 24 of 50 report but that issue has become stale in view of the judgment and order dated 26.09.2013 delivered in WP(C) 40 of 2004 and as such, it is no more relevant in the present context. By virtue of the said judgment of this court, passed in the previous writ petition, filed by the petitioner, the petitioner has filed the comprehensive representation, after having complete copy of the inquiry report, in respect of the reasons for disagreement with the finding by the disciplinary authority. Thereafter, by the order dated 26.08.2014, the disciplinary authority (the Commandant, 97 Bn.) dismissed the petitioner from the service under section 11(1) CRPF Act, 1949 read with Rule 27 of the CRPF Rules, 1955 and passed the consequential orders that the intervening period from the date of dismissal from the service to the date of his reinstatement (in compliance of the order of this High Court) from 15.04.1998 to 30.06.2014 total 5921 days have been declared to be treated "as period not spent in duties" for all purposes and the petitioner will not be entitled to pay and allowances for the said period. During the period from 01.07.2014 (the day of suspension) to the day of dismissal, Page 25 of 50 the petitioner will not earn any other pay and allowances as except the subsistence allowance as already drawn. [19] According to Mr. Nath, learned counsel appearing for the petitioner, the fact of „honourable acquittal‟ of the petitioner in the criminal trial was not taken into consideration. Even the appeal filed by the petitioner against the said order dated 26.08.2014 has been dismissed "by a non-speaking order". Hence, dismissal of the petitioner from the service is grossly illegal, inasmuch as a well reasoned inquiry report has been discarded by the purported analogy as shown in the note of the disagreement which was supplied to the petitioner in compliance of the direction issued in the writ petition, previously filed by the petitioner.
[20] Mr. H. Deb, learned ASG appearing for the respondents has stated in reply that there is no infirmity in the process following which the order of dismissal dated 26.8.2014 has been passed. Even the appellate order dated 17.07.2015 cannot be faltered with as the said order is well reasoned. The petitioner would have preferred a revision petition within 30 days from the day when the order of the Page 26 of 50 appellate authority was passed. But the petitioner has not followed that procedure. Mr. Deb, learned ASG having outlined the occurrence that took place on 08.07.96 at about 8.30 pm has stated that the petitioner had consumed liquor just before the duty as the night patrolling sentry. At 08.40 pm, the petitioner went out to see a cultural show in the Town Hall, Dharmanagar. Despite the entry was restricted, the petitioner and two other personnel namely Raj Kumar Singh and Vedmoni Mishra tried to enter inside the Town Hall by applying force. When they failed to enter inside the Town Hall, the petitioner and other two personnel came back to the camp area and rushed back to the town hall with their personal weapons and fired on the personnel of the Tripura Police causing instantaneous death of one Head Constable of Tripura Police. One of the delinquent namely Raj Kumar has also sustained bullet injury on his hip.
[21] Mr. Deb, learned ASG has highlighted that the alleged acts are completely unauthorized, particularly of leaving the camp area and proceeding with the weapon to the town hall area. Having referred to the reply, filed by the Page 27 of 50 respondent, Mr. Deb learned ASG has submitted that the judgment dated 31.07.2003 was interfered by the apex court and the matter was remanded for re-hearing. Mr. Deb has also referred to the judgment and order dated 26.08.2014 delivered in WP(C) 40 of 2004. Mr. Deb, learned ASG has quite emphatically submitted that the disciplinary authority has held the petitioner guilty of misconduct on the basis of re-appreciation of the material facts as recorded in the inquiry proceeding and there is no infirmity while arriving at the finding of disagreement. [22] The disciplinary authority is competent to disagree but by setting out the reason for such disagreement. The delinquent inheres right to represent against such reasoning. In the present case, Mr. Deb, learned ASG has submitted that in compliance to the direction of this court in the judgment and order dated 26.09.2013, the due opportunity of filing the representation on the reasons of disagreement was afforded to the petitioner. As stated, the petitioner filed such representation and on consideration of such representation, the order of dismissal dated 26.08.2014 (Annexure P/14) Page 28 of 50 has been passed. The said order has been affirmed by the appellate order dated 17.07.2015 (Annexure P/15 to the writ petition). Mr. Deb, learned ASG has submitted that the delinquent has been given all opportunities of his defence. It has been also asserted that it is no where made mandatory to ask the delinquent whether he would need the legal assistance, in the departmental inquiry. Even the petitioner did not approach for such assistance. [23] Hence, Mr. Deb. learned ASG has emphatically contended that after participating in the departmental proceeding and on defending the inquiry report, the said question cannot be raised when the order of dismissal had been judicially reviewed by this court. According to Mr. Deb, the mode of appreciation of the evidence and the standard of proof in the departmental proceeding and in the criminal trial are completely different. According to Mr. Deb, learned ASG in the departmental proceeding the charges as brought against the petitioner are quite different from the charges as framed in the criminal trial. The charges those were framed in the criminal trial against the petitioner and the co-delinquents were for committing murder, applying Page 29 of 50 the criminal force to deter the government official from performing their duties and for attempting murder. Even though the departmental charges and the charges in the criminal trial flow from the same occurrence, but it cannot be held that the charges were identical. That apart, Mr. Deb learned ASG has submitted on the scope of judicial review in respect of the final order passed in the departmental proceeding. In the judicial review, the court cannot function as the appellate court to appreciate the evidence afresh in order to decide the merit of the decision. Hence, the writ petition is bound to fail and accordingly it be dismissed. [24] Mr. Nath, learned counsel has referred to a decision of the apex court in G.M Tank vs. State of Gujarat and Others reported in (2006) 5 SCC 446, in support of the petitioner‟s contention that when the departmental proceeding and the criminal case are based on identical and similar set of facts and the charge in the departmental case against the delinquents and the charge in the criminal case against him are one and same "without being any iota of difference" the challenge against the sustainability of penalty in the departmental proceeding on Page 30 of 50 acquittal from the charge in the criminal trial should succeed.
[25] In G.M Tank (supra) the apex court has considered the precedents on the same issue and observed as follows:
22. In Capt. M. Paul Anthony vs. Bharat Gold Mines Ltd (1999) 3 SCC 679, the question before this Court was as to whether the departmental proceedings and the proceedings in a criminal case launched on the basis of the same set of facts can be continued simultaneously. In Paragraph 34, this Court held as under:
34. There is yet another reason for discarding the whole of the case of the respondents. As pointed out earlier, the criminal case as also the departmental proceedings were based on identical set of facts, namely "the raid conducted at the appellant's residence and recovery of incriminating articles therefrom". The findings recorded by the enquiry officer, a copy of which has been placed before us, indicate that the charges framed against the appellant were sought to the proved by police officers and panch witnesses, who had raided the house of the appellant and had effected recovery. They were the only witnesses examined by the enquiry officer and the enquiry officer, relying upon their statements, came to the conclusion that the charges were established against the appellant. The same witnesses were examined in the criminal case but the Court, on a consideration of the entire evidence, came to the conclusion that no search was conducted nor was any recovery made from the residence of the appellant. The whole case of the prosecution was thrown out and the appellant was acquitted. In this situation, therefore, where the appellant is acquitted by a judicial pronouncement with the finding that the "raid and recovery" at the residence of the appellant were not proved, it would be unjust, unfair and rather oppressive to allow the findings recorded at Page 31 of 50 the ex parte departmental proceedings to stand."
23. In R.P. Kapur vs. Union of India; (1964) 5 SCR 431 : AIR 1964 SC 787, a Constitution Bench of this Court observed:
"If the trial of the criminal charge results in conviction, disciplinary proceedings are bound to follow against the public servant so convicted. Even in case of acquittal proceedings may follow, where the acquittal is other than honourable."
(emphasis supplied)
24. In the case of Corporation of the City of Nagpur Vs. Ramchandra : (1981) 2 SCC 714, the same question arose before this Court. This Court, in paragraph 6, held as under:
"6. The other question that remains is if the respondents are acquitted in the criminal case whether or not the departmental inquiry pending against the respondents would have to continue. This is a matter which is to be decided by the department after considering the nature of the findings given by the criminal court. Normally where the accused is acquitted honourably and completely exonerated of the charges it would not be expedient to continue a departmental inquiry on the very same charges or grounds or evidence, but the fact remains, however, that merely because the accused is acquitted, the power of the authority concerned to continue the departmental inquiry is not taken away nor is its direction [discretion] in any way fettered. "
(emphasis supplied)
25. The rulings cited by the learned counsel appearing for the respondent are:
In Krishnakali Tea Estate vs. Akhil Bharatiya Chah Mazdoor Sangh :(2004) 8 SCC 200 it was argued before this Court on behalf of the respondent Sangh that the Labour Court ought not to have brushed aside the finding of the criminal Court which according to the learned single Judge "honourably" acquitted the accused workmen of the offence before it. The learned Judges were taken through the judgment of the Criminal Court. The Bench was of the opinion that Page 32 of 50 the acquittal by the Criminal Court was `honourable' as it was based on the fact that the prosecution did not produce sufficient material to establish its charge which was clear from the following observations found in the judgment of the criminal Court:
"Absolutely in the evidence on record of the prosecution witnesses I have found nothing against the accused persons. The prosecution totally fails to prove the charges under Sections 147, 353, 329 IPC."
26. Before the learned Judges, Paul Anthony's case (supra) 3 SCC 679 was relied on in regard to the above contentions. The learned Judges held that the decision in Paul Anthony's case (supra) would not support the respondent therein because in Paul anthony's case (supra) the evidence led in the criminal case as well as in the domestic enquiry was one and the same and the criminal case having acquitted the workmen on the very same evidence and this Court came to the conclusion that the finding to the contrary on the very same evidence by the domestic enquiry would be unjust, unfair and rather oppressive. The Bench further held as follows:
"It is to be noted that in that case the finding by the Tribunal was arrived at in an ex parte departmental proceeding. In the case in hand, we have noticed that before the Labour Court the evidence led by the management was different from that led by the prosecution in the criminal case and the materials before the criminal court and the Labour Court were entirely different. Therefore, it was open to the Labour Court to have come to an independent conclusion de hors the findings of the criminal court. But at this stage, it should be noted that it is not as if the Labour Court in the instant case was totally oblivious of the proceedings before the criminal court. The Labour Court has in fact perused the order of the Judicial Magistrate and the exhibits produced therein and come to an independent conclusion that the order of the criminal court has no bearing on the proceedings before it; which finding of the Labour Court, in our opinion, is justified."
27. In the case of Ajit Kumar Nag vs. General Manager (PJ), Indian Oil Corpn. Limited :(2005) 7 Page 33 of 50 SCC 764, this Court in paragraph 11 held as under:
"11.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 the 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."
28. This Court in the case of Depot Manager, A.P. State Road Transport Corpn. Vs. Mohd. Yousuf Miya : (1997) 2 SCC 699, in paragraph 8 held as under:
"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 Page 34 of 50 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 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 departmental 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. In this case, the charge is failure to anticipate the accident and prevention thereof. It has nothing to do with the culpability of the offence under Sections 304-A and 338 IPC. Under these circumstances, the High Court was not right in staying the proceedings."
[26] In S. Bhaskar Reddy and Another vs. Superintendent of Police and Another reported in (2015) 2 SCC 365, the apex court has extensively referred Joginder Page 35 of 50 Singh Vs. Union Territory of Chandigarh reported in (2015) 2 SCC 377, where the law enunciated in Inspector General of Police vs S. Samuthiram reported in (2013) 1 SCC 598 has been restated. In S. Samuthiram (supra) the apex court has dwelled upon the meaning of the expression "honourable acquittal" and observed as follows:
"24. The meaning of the expression "honourable acquittal" came up for consideration before this Court in RBI v. Bhopal Singh Panchal : (1994) 1 SCC 541. In that case, this Court has considered the impact of Regulation 46(4) dealing with honourable acquittal by a criminal court on the disciplinary proceedings. In that context, this Court held that the mere acquittal does not entitle an employee to reinstatement in service, the acquittal, it was held, has to be honourable. The expressions "honourable acquittal", "acquitted of blame", "fully exonerated" are unknown to the Code of Criminal Procedure or the Penal Code, which are coined by judicial pronouncements. It is difficult to define precisely what is meant by the expression "honourably acquitted". When the accused is acquitted after full consideration of prosecution evidence and that the prosecution had miserably failed to prove the charges levelled against the accused, it can possibly be said that the accused was honourably acquitted."
[27] The element of "honourable acquittal" has been juxtaposed with the principle as culled out in M. Paul Anthony (supra) and in G.M. Tank (supra). If the facts on evidence in both the proceedings (the criminal and the departmental proceeding were the same without being any iota of difference, the distinction which is usually drawn Page 36 of 50 between the departmental proceeding and the criminal case is on the basis of approach and burden of proof. More succinctly, in G.M. Tank (supra) it has been observed that if it is found that the departmental proceeding and the criminal case are based on identical and similar set of facts and evidence and the delinquent has been honourably acquitted by the competent court on the same set of facts, evidence and the witnesses, in that circumstances the departmental action based on the same set of facts and evidence is liable to be set aside in the interest of justice. [28] In S. Bhaskar Reddy (supra), the said jurisprudential approach has been restated by the apex court. A decision of the apex court in Shashi Bhusan Prasad Vs. Inspector General, Central Industrial Security Force and Ors reported in (2019) 1 TLR (SC) 502 has also been relied on where the apex court has observed having considered the previous decisions, as under:
"17. The scope of departmental enquiry and judicial proceedings and the effect of acquittal by a criminal Court has been examined by a three Judge Bench of this Court in Depot Manager A.P. State Road Transport Corporation Vs. Mohd. Yousuf Miya and Others. The relevant para is as under:-
"...The purpose of departmental enquiry and of prosecution are two different and distinct aspects. The criminal prosecution is Page 37 of 50 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 Page 38 of 50 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. Under these circumstances, what is required to be seen is whether the departmental 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. In this case, we have seen that the charge is failure to anticipate the accident and prevention thereof. It has nothing to do with the culpability of the offence under Sections 304-A and 338, IPC. Under these circumstances, the High Court was not right in staying the proceedings."
(Emphasis supplied)
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 4, 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 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 Page 39 of 50 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 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. 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."
Page 40 of 50[29] Another decision of this court, though set up in different facts and circumstances, has been pressed by Mr. Nath, learned counsel appearing for the appellant. In Nandalal Das vs. Tripura Khadi & Village Industries Board and Ors. reported in (2015) 2 TLR 425, having referred the guidelines as culled in Capt. Anthony (supra), it has been observed that both the departmental proceeding and the criminal case can proceed simultaneously, if there is no bar, if they are conducted simultaneously. If the departmental proceeding and the criminal case are based on identical and similar set of facts, these can proceed because the degree of proof required in a criminal case is beyond reasonable doubt, but in departmental proceeding preponderance of probability is measured. In the departmental proceeding what has to be decided is whether the employee has misconducted himself. Even if an employee is found guilty of misconduct he may not be guilty of a criminal offence. If he commits a criminal offence then no other inquiry is required to hold that he is guilty of misconduct. The other way is round is not true. Even an acquittal in a criminal case is no bar to continuation of the disciplinary proceeding. Page 41 of 50 [30] Mr. Deb, learned ASG appearing for the respondents has contended that the note of disagreement as quite elaborately been discussed in the show cause notice dated 12.07.2014 (Annexure P/12). It has been categorically observed that the evidence of one Kameshwar Thakur (S.W.-3) a head constable/GD has substantiated the charge that the petitioner had consumed the liquor while he joined in the fight. He was stinking with the smell of liquor. The observation of the Inquiry Officer (I.D. Sharma) that no medical examination report was available has been discarded by holding that the circumstances were as such that medical examination could not be conducted. On the charge of leaving the duty place unauthorisedly, it has been observed that from the evidence of Inspector Rambir Singh (S.W.-1) and Zainuddin (S.W-2), it has been clearly established that the delinquent (the petitioner) had gone out to witness a cultural show in the Town Hall, Dharmanagar and he got involved in a shooting incident. [31] As regards the charge of getting engaged in scuffle with Tripura Police Personnel under influence of liquor, it has been observed that the said fact has been Page 42 of 50 substantiated by Inspector Rambir Singh (S.W-1). SW-1 had reported the incident to the Commandant by an wireless message. It has been observed in the said note of disagreement that the statements of S.W-2 and S.W.-3 are found relevant in proving the said article of charge. Even the statement of the „additional‟ witness, Arvind Singh has been partly relied on to infer that the petitioner got involved in a scuffle with the personnel of Tripura Police who were on duty in Town Hall at the relevant time and day. The said incidence led to shooting and killing of one Head Constable of the Tripura Police.
[32] So far the charge that the delinquent (the petitioner) along with co-delinquents took their weapons and rushed back to the Town Hall area without the order of the competent authority, has been held to be proved by the evidence of S.W.-1, S.W-2 and S.W.-3. On the basis of the said finding, the final order of dismissal was passed by the disciplinary authority. Mr. Deb, learned ASG has submitted that the charges have been proved by adequate evidence in the departmental proceeding and as such the report of the inquiry officer has been rightly discarded. The inquiry officer Page 43 of 50 is not supposed to draw inference by brushing aside the materials available in the evidence, as recorded during the inquiry. The appellate authority since has affirmed the order of dismissal has not given detailed reasons, but sufficient reasons have been given to dismiss the appeal. [33] Mr. Deb, learned ASG has emphatically submitted that in the previous writ petition, the issue of legal assistance was not asserted and as such, there was no such direction for de novo inquiry. What the court had found as the procedural infirmity, was directed to be cured by providing the appropriate opportunity to the petitioner (the delinquent). Such opportunity has been afforded to the petitioner and thereafter, on the basis of the materials as recorded in the inquiry and having regard to the reply filed by the petitioner to the show cause, the order of dismissal has been passed by the disciplinary authority. Sufficient reason has been provided for imposing major penalty of dismissal from service as the delinquent had acted dangerously and such misconduct cannot be viewed leniently. Thus, no objection on proportionality would lie. Page 44 of 50 [34] Mr. Deb, learned ASG has reminded that the judicial review cannot be made equal to the appeal. The appellate authority has the equal power of the disciplinary authority to appreciate all the evidentiary and relevant materials in order to verify the sustainability of the analogy. But in a judicial review, the court shall recognize the limited scope and ordinarily such exercise shall be restricted to examining the processual adequacy and fairness. In this regard, a reference has been made to M.V Bijlani vs. Union of India and Others reported in (2006) 5 SCC 88 where the apex court has observed as follows:
"25. 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 evidences to prove the charge. Although the charges in a departmental proceedings are not required to be proved like a criminal trial, i.e., beyond all reasonable doubts, 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."Page 45 of 50
[35] In order to appreciate the submissions advanced by the learned counsel for the parties, at this juncture, this court would refer to the part of inference, drawn in the judgment dated 02.04.2008 delivered in Criminal Appeal No. 03 of 2001 (reproduced before), where it has been recorded that none of the prosecution witnesses deposed that the accused Somnath Singh was seen with the main accused Rambir Singh or other co-accused, let alone his taking active participation in the scuffling with the policemen or taking part in the firing in the Town Hall area on the date of occurrence. After having observed thus, the Gauhati High court which had the territorial jurisdiction at the relevant point of time held that the prosecution has indeed failed to prove the charge against the accused, Somnath Singh beyond reasonable doubt. Whether an acquittal is an honourable acquittal or the acquittal of blame is to be found not from the final comment but from the finding based on which the delinquent has been acquitted. Having read that findings as quoted before it surfaces quite succinctly that there was no evidence at all against the delinquent in respect of his engagement in Page 46 of 50 scuffle or participation along with the other accused persons in killing the Head Constable of Tripura police by using their service weapons.
[36] In such circumstances, this court has to apply the principle as laid down in GM Tank (supra) as the same set of witness has been considered both in the departmental inquiry and in the criminal case. While we were considering of applying the principle of GM Tank (supra) due care has been taken in respect of the decisions of MD. Yousuf Miah (supra) and Ajit Kumar Nag (supra) as extensively referred in Shasi Bhusan Prasad (supra). We have considered the element of "degree of proof" in both the proceeding. Such facts become relevant, when the acquittal has been recorded on appreciation of evidence by the standard of "beyond reasonable doubt". The charge in the criminal case and the departmental proceeding to the extent of scuffle and using the service weapon leading to a murder of Head Constable of Tripura Police are no doubt identical. Mr. Deb, learned ASG did not make any attempt to distinguish the facts so far the charges under Article -IX is concerned. This is the only charge which is apparently Page 47 of 50 identical to the charge of the criminal case. In view of the finding of the Gauhati High Court, this court is of the view that the said charge in the departmental action cannot be sustained. Hence, the same is set aside. So far the other three charges are concerned viz. Articles-IX, X and XII, this court would not interfere, as on perusal of the evidence from the records of departmental proceeding, no infirmity can be located.
[37] In Union of India vs B. C. Chaturvedi reported in (1995) 6 SCC 750, the extent of judicial review has been quite lucidly exposited in the following term:
"12. 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 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 Page 48 of 50 review does not act as appellate authority to re- appreciate 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.
13. The disciplinary authority is the sole judge of facts. Where appeal is presented. The appellate authority has co- extensive power to reappreciate the evidence or the nature of punishment. In a disciplinary inquiry the strict proof of legal evidence and findings on that evidence are not relevant. Adequacy of evidence or reliability of evidence cannot be permitted to be canvassed before the Court/Tribunal. In Union of India v. H.C. Goel :(1964) 4 SCR 781, this Court held at page 728 that if the conclusion, upon consideration of the evidence, reached by the disciplinary authority, is perverse or suffers from patent error on the face of the record or based on no evidence at all, a writ of certiorari could be issued.
14. In Union of India & Ors. v. S.L. Abbas : (1993) 4 SCC 357, when the order of transfer was interfered by the Tribunal, this Court held that the Tribunal was not an appellate authority which could substitute its own judgment to that bona fide order of transfer. The Tribunal could not, in such circumstances, interfere with orders of transfer of a Government servant. In Administrator of Dadra & Nagar Haveli v. H.P. Vora : (1993) Supp. 1 SCC 551, it was held that the Administrative Tribunal was not an appellate authority and it could not substitute the role of authorities to clear the efficiency bar of a public servant. Recently, in State bank of India & Ors. v. Samarendra Kishore Endow : (1994) 2 SCC 537, a Bench of this Court to which two of us (B.P. Jeevan Reddy & B.L. Hansaria, JJ.) were members, considered the order of the Tribunal, which quashed the charges as based on no evidence, went in detail into the question as to whether the Tribunal had power to appreciate the evidence Page 49 of 50 while exercising power of judicial review and held that a Tribunal could not appreciate the evidence and substitute its own conclusion to that of the disciplinary authority. It would, therefore, be clear that the Tribunal cannot embark upon appreciation of evidence to substitute its own findings of fact to that of a disciplinary/appellate authority."
[38] However, for interfering with the said charge (Article-XI), this court is bound to interfere with the order of dismissal dated 26.08.2014 (Annexure -P/14 to the writ petition) passed by the disciplinary authority and the order dated 17.07.2015 (Annexure-P/15 to the writ petition) passed by the appellate authority and accordingly those are set aside. However, it is made absolutely clear that the findings of the disciplinary authority in respect of the charges vide Articles IX, X and XII have been maintained. The matter is remanded for awarding the penalty on the petitioner proportionately to the misconduct as proved. [39] The respondents particularly the respondent No.4 is directed to pass the penalty, proportionate to the misconduct within a period of two months from the date of receipt of a copy of this order. Needless to say that while passing the order of penalty, the consequential orders Page 50 of 50 relating to the financial benefits during the period of suspension shall as well be passed by the respondent No.4.
In terms of the above, the writ petition stands partly allowed.
There shall be no order as to costs.
The records of the departmental proceeding as produced by the respondents be returned to Mr. H. Deb, learned ASG under a sealed cover.
JUDGE Dipak