WP(C) 1804/2008 BEFORE HON’BLE MR. JUSTICE B.K. SHARMA . JUDGMENT AND ORDER (CAV) The petitioner, who was a Constable in the Assam Police and who has been discharged from service pursuant a departmental proceeding, has filed this writ petition challenging the order of discharge. 2. It was on 28.11.2002, Annexure-A F.I.R. was lodged with the Lanka Police Station by one Smt. Paboni Mech alleging rape on her by one police personnel on the night of 19.11.2002 in the house of a particular woman and misbehaviour by another police personnel. In the F.I.R., it was stated that the informant would be able to identify the two police personnel. On the basis of the said F.I.R., Lanka P.S. Case No.119/2002 was registered under Section 376/354/34 IPC. 3. It appears that a preliminary fact finding enquiry was conducted relatin g to the incident. A report was submitted to the Superintendent of Police, Nagao n, copy of which has been annexed as Annexure-C to the writ petition. The report was submitted by the Sub-Divisional Police Officer, Hojai, Nagaon. As per the r eport, the victim girl had eloped with one Sri Dulal Deb Nath on 16.11.2002 to g et married with him and in the particular night, they had taken shelter in the h ouse of one Smt. Piyara Begum. The police personnel came in search of the girl a nd at about 3.00 A.M. on 20.11.2002, they searched the house of Smt. Piyara Begu m. While doing so, one Md. Awal Hussain allegedly raped the victim girl while th e petitioner outraged her modesty. 4. After the aforesaid incident, the petitioner was placed under suspension by order dated 30.11.2002 and the petitioner by his Annexure-D representation d enied the allegation made in the enquiry report. On 30.11.2002, the Superintende nt of Police, Nagaon issued Annexure-E charge sheet levelling the following char ge asking the petitioner to submit written statement of defence within 10 days : - While you were posted at Udali P.P. on 20.11.02 at about 3 A.M (at night) you had gone with I/C Udali and three other police personnel and Home guard to the house of one Piyara Begum D/o Md. Tara Mian of Village Barungaon under Udali P.P . for conducting search. During search you molested one Miss Probini Mech, D/O Monti Mech of No.1 Beloguri under Howraghat P.S. who was taking shelter in the a bove house. H.G. Awal Hussain, who was a member of the police team, raped Miss P robini Mech with your assistance you such amounts to gross misconduct indiscipli ned. 5. Although the copy of the written statement of defence submitted by the p etitioner has not been annexed to the writ petition, but in paragraph 9 of the w rit petition, it has been stated that the disciplinary authority being not satis fied with the reply filed by the petitioner, decided to conduct a departmental e nquiry and accordingly, by order dated 11.3.2003 appointed an Enquiry Officer. T hereafter, upon his transfer, another Enquiry Officer was appointed by order dat ed 26.9.2003. In paragraph 10 of the writ petition, it has been stated that duri ng the course of enquiry proceeding, a number of witnesses were examined includi ng the victim girl and her husband. Finally, the Enquiry Officer submitted his report on 11.6.2004 (Annexure-F to the writ petition). 6. The Enquiry Officer in his report held the charge to have been establish ed against the petitioner. On perusal of the enquiry report, it appears that the Enquiry Officer had visited the place of occurrence and took the statement of t he material witnesses. The petitioner was provided with due opportunity to cross examine the witnesses. The victim girl in her statement, clearly stated about t he offence committed by the petitioner. Others present in the house also corrobo rated her statement. The Enquiry Officer duly took note of the plea of the petit ioner that it was not possible to commit such offence in presence of all the pol ice personnel. In this connection, the observation and finding recorded by the E nquiry Officer is reproduced below :- I have gone through the statement and show cause reply of the delinquent. He ha s admitted that they went to the house of Piyara Begum at 3.00 A.M. at night but denied the allegation of rape. His plea is that in presence of a posse of force , it was unnatural to rape or molestation. But the circumstances narrated by vi ctim Paboni Mech and other witnesses convinced me to believe that some untoward incidents were committed on that material night by the police which were excesse s in the pretext of conducting search or maintaining law and order. Chastity and modesty are two most invaluable property of any woman which they never want to loose and tried to protect from the invaders. Even the destitute also tries to protect from forceful users. But as a weaker section of the society they some t ime failed to protect and had to surrender before the beast like man. In the in stant enquiry I have found that the delinquent, the then I/C and the House Guar d with their so called power as police committed atrocities towards the weaker s ection of the society i.e. Paboni Mech for which allegation of rape and molestat ion were brought against them. FINDING - On careful scrutiny of the statements of witnesses, I have come to an unassailab le conclusion that the acts done by the delinquent on the material night towards the victim Paboni Mech are clearly amounts to gross misconduct. Hence, I find a nd hold the delinquent as guilty of the charge of gross misconduct as levelled a gainst him. 7 In paragraph 11 of the writ petition, it has been stated that the impugn ed order dated 21.8.2004 discharging the petitioner from service was passed with out serving any second show cause notice asking the petitioner to file his repre sentation against the enquiry report. According to the petitioner, the order was hurriedly passed without awaiting the outcome of the criminal proceeding agains t the petitioner. However, nothing has been stated as to what was the prejudice caused to the petitioner by not issuing the second show cause notice enabling hi m to make representation against the enquiry report. It is not the case of the p etitioner that the copy of the enquiry report was not furnished to him since the petitioner had received the copy of the enquiry report before passing the impug ned order. He could have made representation against the same. 8 The whole basis of the writ petition against the impugned order of disch arge from service is that the disciplinary authority without waiting for the out come of the criminal case, ought not to have passed the said order. It will be p ertinent to mention here that in the criminal case, the petitioner has been acqu itted vide judgment and order dated 13.12.2006 (Annexure-J to the writ petition) . It will also be pertinent to mention here that the petitioner had on an earlie r occasion, approached this Court by filing the writ petition being WP(C) No.795 1/2004 assailing the impugned order. The writ petition was disposed of by judgme nt and order dated 10.3.2008 directing the appellate authority to dispose of the departmental appeal preferred by the petitioner in accordance with rule. In par agraph 18 of the writ petition, it has been stated that the learned counsel for the petitioner was intimated that the appeal had already been disposed of way ba ck in 2004 by order dated 1.12.2004 upholding the order passed by the disciplina ry authority. According to the petitioner, the appellate order was never receive d by him. The copy of the appellate order has been annexed as Annexure-M, on per usal of which it appears that the appellate authority in consideration of the ma terials on record upheld the order of discharge passed by the disciplinary autho rity. 9. As noted above, the only ground on which the impugned order of discharge from service has been challenged, is the subsequent acquittal of the petitioner in respect of the charge in the criminal case against the petitioner. It is not the case that the departmental proceeding was not conducted following due proce dure and giving him a reasonable opportunity of being heard. In fact, the petiti oner participated in the proceeding without raising any plea relating to pendenc y of the criminal case. 10. In the counter affidavit filed by the respondents, the contentions raise d in the writ petition have been denied. As regards the appellate order dated 1 .12.2004, it has been categorically stated that the appeal preferred by the peti tioner was disposed of by the D.I.G. (CR) Diphu on 1.12.2004 and the same was du ly communicated to the petitioner vide Memo No.CR/APPEAL/84/2275-78 dated 1.12.2 004. According to the respondents, the petitioner had suppressed the material f act while moving the earlier writ petition. As regards the plea of the petition er that he having been acquitted in the criminal case, the order of discharge is liable to be interferred with, the respondents have stated that the departmenta l proceeding and the criminal proceeding are not the one and the same and the pa rameter applied in both the proceedings are different. It has been stated that the conduct of the petitioner being unbecoming for a disciplined force, he has b een rightly discharged from service to maintain discipline and the keep the mor ale of the force high. 11. I have heard Mr. D.K. Saikia, learned counsel for the petitioner as well as Ms R. Chakraborty, learned Addl. Sr. Govt. Advocate, Assam. I have gone thro ugh the entire materials on record. 12. As regards the plea of the petitioner that he having been acquitted in t he criminal proceeding, the order of discharge is liable to be interferred with, suffice is to say that the principles involved in both the proceedings i.e. dep artmental and criminal are distinct and different. While in a criminal case, the charge is to be established beyond all reasonable doubt, but in a departmental proceeding, it is the preponderance of probability, the establishment of which is the foundation towards passing an order of penalty. In this connection, the decision of the Apex Court reported in (1996) 6 SCC 417 (State of Rajasthan v. B .K. Meena) may be referred to. Pointing out the distinction between the crimina l proceeding and disciplinary proceeding, the Apex Court pointed out that in the disciplinary proceedings, the question is whether the delinquent is acquitted o f such conduct, as would be merit him removal from service or lesser punishment, as the case may be. Whereas in the criminal proceedings, the question is wheth er the offence registered against him under criminal law, if established, what s entence should be imposed upon him. It has further been pointed out that the st andard of proof, the mode of enquiry and the rules governing the enquiry and tri al in both the cases are entirely distinct and different. 13. In Allahabad District Co-operative Bank Limited v. Vidhya Varidh Mishra, reported in (2004) 6 SCC 482, the Apex Court noticing the fact that the termina tion of service of the respondent was pursuant to a disciplinary enquiry rejecte d the plea that the said respondent having been exonerated in the criminal case, the accused should be reinstated in service. In paragraph 12 of the judgment, i t has been observed thus :- 12. Mr. Rao submitted that the respondent had been exonerated by the crimina l court. He submitted that the termination was only on the basis of his convicti on. He submitted that as his conviction is set aside, the courts below were righ t in reinstating the respondent. We are unable to accede to this submission. Th e termination was pursuant to a disciplinary inquiry. It is settled law that in a disciplinary inquiry a conclusion different from that arrived at by a crimina l court, may be arrived at. The strict burden of proof required to establish gu ilt in a criminal court is not required in disciplinary proceedings. The respond ent had not claimed that the disciplinary proceedings were not conducted fairly. As the termination was based on findings of the Disciplinary Committee, the fac t that the appellate court exonerated the respondent was of no consequence. 14. In Govind Das v. State of Bihar & Ors reported in (1997) 11 SCC 361, t he Apex Court observed thus :- 2. The only ground which has been urged by the learned counsel for the appellan t in support of this appeal is that since the appellant has been acquitted in th e criminal case, the order for termination of his services should have been set aside. The learned counsel has placed before us a copy of the judgment of the cr iminal court whereby the appellant was acquitted. We have gone through the said judgment. We find that the acquittal of the appellant is based on the view that the charges are not proved beyond reasonable doubt. Since the standard of proof required to prove a charge of misconduct in departmental proceedings is not the same as that required to prove a criminal charge, the acquittal of the appellan t in the criminal case, in these circumstances, could not, in our opinion, be ma de the basis for setting aside the order for termination of the services of the appellant passed in the disciplinary proceedings on the basis of evidence adduce d in the departmental inquiry conducted in the charges levelled against the appe llant. We, therefore, find no merit in this appeal and the same is accordingly d ismissed. No orders as to costs. 15. Similarly, in State of A.P. v. K.Allabakash reported in (2000) 10 SCC 177, the Apex Court while upholding the acquittal of the respondent, a Sub-Inspe ctor of Police, earlier convicted under Section 302 IPC observed that the acquit tal of the respondent shall not be construed as his clear exoneration from the a llegation in the departmental proceeding. 16. Learned counsel for the petitioner placing reliance on the decision of t he Apex Court, reported in AIR 1999 SC 1416 (Capt. M. Paul Anthony v. Bharat Gol d Mines Ltd.) submitted that since the petitioner has been acquitted in the crim inal case, the order of discharge is required to be interferred with. This judg ment was taken note of by this Court in its earlier judgment and order dated 10. 3.2008 passed in WP(C) No.7951/2004, by which the direction was issued to the ap pellate authority to dispose of the departmental appeal preferred by the petitio ner. In M. Paul Anthony (supra), the Apex Court noticing the fact that the depar tmental proceeding and the criminal case were based on identical set of facts an d the evidence adduced were also common, held that the dismissal of the employee should be interferred with as the Apex Court found that the acquittal in the cr iminal case could have concluded the departmental proceeding. 17. The aforesaid judgment was delivered in the given facts and circumstance s, more particularly, when the delinquent was not paid any subsistence allowance enabling him to participate in the departmental proceeding. The departmental pr oceeding was concluded ex parte in the said case as the petitioner could not pa rticipate in the proceeding due to non-payment of subsistence allowance. In para graph 35 of the judgment, the Apex Court observed thus :- 35. Since the facts and the evidence in both the proceedings, namely, the depar tmental proceedings and the criminal case were the same without there being any iota of difference, the distinction, which is usually drawn as between the depar tmental proceedings and the criminal case on the basis of approach and burden of proof, would not be applicable to the instant case. 18. In the earlier judgment passed by this Court, direction was issued to th e appellate authority to dispose of the appeal preferred by the petitioner. Alth ough it is the contention of the respondents in the counter affidavit that the a ppeal was already disposed of by the aforesaid order dated 1.12.2004, but the sa id fact was not brought to the notice of the Court and thus, naturally, the obse rvations made in the said judgment and order dated 10.3.2008 did not find mentio n in the appellate order dated 1.12.2004. In terms of the said judgment and orde r, the appellate authority was required to dispose of the departmental appeal da ted 18.9.2004 consistently with the facts and circumstances indicated in the jud gment. However, instead of adopting such a course of action, the appellate autho rity simply forwarded the order dated 1.12.2oo4 (Annexure-M to the writ petition ), by which the departmental appeal was purportedly disposed of. During the cour se of hearing of the earlier writ petition, it was never brought to the notice o f this Court that the appeal was disposed of by order dated 1.12.2004. It is als o a specific case of the petitioner that he was never served with the copy of th e said appellate order. 19. In view of the above and having regard to the earlier judgment and order dated 10.8.2008, I am of the considered opinion that the aforesaid departmenta l appeal preferred by the petitioner should be disposed of taking note of the af oresaid facts and circumstances as well as the earlier judgment and order dated 10.3.2008. Let the appeal be disposed of afresh by the appellate authority as ex peditiously as possible, preferably within 3 (three) months from today. While di sposing of the appeal, the appellate authority shall take note of the observatio ns made above and the principles involved in the departmental and criminal proce edings, about which the discussions have been made above. 20. With the aforesaid direction, the writ petition is disposed of.