Civil Writ Petition No.17234 of 2009 : 1 : IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of Decision: November 11, 2009 EHC Dalbir Singh ...Petitioner VERSUS State of Haryana & others ...Respondents CORAM: HON'BLE MR.JUSTICE RANJIT SINGH 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Present: Mr.Sat Narain Yadav, Advocate, for the petitioner. ***** RANJIT SINGH, J. The petitioner was working as Exemptee Head Constable. He was detailed on Escort Guard, Ambala Petrol Depot where he was present on duty on 18.7.2008. The petitioner along with one Randhir Singh alias Dheera went to Manka Manki Petrol Pump and got petrol worth Rs.500/- filled in a car. After getting the petrol filled, the petitioner along with his companion bolted from the Civil Writ Petition No.17234 of 2009 : 2 : place by striking side of the car with the Salesman. He was followed by the owner of the petrol station and his Salesman. The petitioner fell from the car and was accordingly caught by the owner of the petrol pump. The matter was reported to the police. FIR No.101 was registered on 18.7.2008 under Sections 420, 279, 336 and 114 IPC at Police Station Mullana. Since the conduct of the petitioner was taken as a serious misconduct, he being a public servant, the departmental proceedings were also initiated against him. Regular departmental enquiry was conducted by DSP, Police Headquarters, Ambala. On the basis of evidence recorded, the Enquiry Officer found the petitioner guilty of the misconduct and accordingly he was punished with stoppage of four increments with cumulative effect. Subsequently, the petitioner was acquitted of the criminal charge. Petitioner accordingly filed an appeal against the punishment awarded to him departmentally. The appeal of the petitioner has been dismissed and accordingly the petitioner has now impugned this action by filing the present writ petition. Counsel for the petitioner would first contend that once the petitioner has been acquitted of the criminal charge, he cannot be punished departmentally for the same allegations, especially so when the same set of witnesses are involved in both the cases. In this regard, the counsel would refer to Rule 16.3 of the Punjab Police Rules. He would then contend that even if the punishment was awarded to him prior to the decision in the criminal case, the same would require reconsideration on the basis of acquittal recorded in the criminal trial. The counsel then submits that for holding departmental proceedings against the petitioner, concurrence of the Civil Writ Petition No.17234 of 2009 : 3 : District Magistrate was needed and in this regard would rely on Rule 16.3 of the Punjab Police Rules as applicable to the State of Haryana. In support of his arguments, the counsel has referred to some judgments. He would first refer to Capt.M.Paul Anthony Vs. Bharat Gold Mines Ltd. And another, AIR 1999 Supreme Court 1416. In this case, the Hon'ble Supreme Court has viewed that when the departmental proceedings and criminal case are based on identical set of facts and evidence in both the proceedings being common, the acquittal in the criminal case should conclude the departmental proceedings. It is further held that the order of dismissal already passed before decision of the criminal case would also be liable to be set-aside. Applicability of ratio of law as laid down in Capt.M.Paul Anthony's case (supra) has been found dependent on the fact situation obtaining in each case (See observations in this regard in The Managing Director, State Bank of Hyderabad and another Vs. P.Kata Rao, AIR 2008 Supreme Court 2146). This ratio of law as laid down by the Hon'ble Supreme Court would not be attracted to the facts of this case. The charges in the criminal trial and the departmental proceedings are not the same. The charge-sheet has been annexed by the petitioner with the record as Annexure P-4. The criminal trial was being held against the petitioner for offences under Sections 420, 279, 336, 337 and 114 IPC. The departmental proceedings were not for these offences but were for carelessness and indiscipline committed by the petitioner as a public servant. Reference here may be made to the observations made in Nelson Civil Writ Petition No.17234 of 2009 : 4 : Motis V. Union of India, AIR 1992 Supreme Court 1981:- “So far the first point is concerned, namely whether the disciplinary proceedings could have been continued in the face of the acquittal of the appellant in the criminal case, the plea has no substance whatsoever and does not merit a detailed consideration. The nature and scope of a criminal case are very different from those of a departmental disciplinary proceedings and an order of acquittal, therefore, cannot conclude the departmental proceedings. Besides, the Tribunal has pointed out that the acts which led to the initiation of the departmental disciplinary proceeding were not exactly the same which were the subject matter of the criminal case.” I have perused the evidence which has been placed by the petitioner on record of this writ file. From the cross-examination of the witnesses as conducted by the petitioner, it would emerge that he has conceded his presence at the place of incident. Not only that, when he was caught he had offered money which was not paid while running away from the spot in this regard. The following questions asked by the petitioner and answered thereto would clearly show this aspect:- “Question: On that day who was driving the vehicle when petrol was filled in the vehicle. Was I driving the vehicle? Ans: Second Boy was driving the vehicle, you were driving. Question: Have I manhandling, gave fist blow, abuses you? Civil Writ Petition No.17234 of 2009 : 5 : Ans.: No, you did not do so. Question: When you met me, was I offered you money? Ans.: Yes, you tried, but I had intimated that incident to police.” There is otherwise also clear evidence on record against the petitioner which he could not rebut. The finding returned by the Enquiry Officer, thus, is supported by the evidence on record. Even the defence witnesses examined could not show anything to indicate the innocence of the petitioner. The finding returned by the Enquiry Officer has no concern with the offences alleged against the petitioner. It may also need a notice here that the standard of proof in a criminal trial and in the departmental proceedings is different. To base a conviction in a criminal trial, the case is required to be proved beyond shadow of any reasonable doubt to bring home the guilt of an accused person. This stringent standard is not the need in departmental proceedings. Accordingly, the mere fact that petitioner was acquitted would not be a valid ground to set-aside the punishment awarded to him for different allegations as made. The principle that finding of the criminal court would bind the departmental proceedings, thus, would not arise in this case. The distinction which is usually proved between the departmental and criminal proceedings on the basis of the approach and burden of proof would be applicable in the instant case. A perusal of the judgment of the criminal court would show that the witnesses did make a reference to the incident but did not identify the petitioner, accused before the court. They were declared hostile and accordingly acquittal was the result. While giving evidence before the Civil Writ Petition No.17234 of 2009 : 6 : Enquiry Officer, the witnesses have not only given evidence about the commission of the misconduct, but the fact that the petitioner was involved would also come out from the nature and trend of the cross- examination done by the petitioner himself, which amounts to admission on his part as already noticed. The finding returned by the Enquiry Officer is, thus, based on valid evidence and would not get dislodged on the ground that the petitioner has been acquitted in the criminal charge where the standard of proof required was entirely different. I am also not impressed with the submission made by the counsel for the petitioner that there was a need to take concurrence of the District Magistrate before holding departmental proceedings. That situation as per Rule 16.38 would arise only in case the police officials decides not to proceed against a police delinquent employee for criminal charges and decision is taken to deal with the case only by way of departmental proceedings. In this case, such a situation does not arise. Here the FIR has also been registered against the petitioner. As per the settled proposition of law, both departmental proceedings and criminal trial can go simultaneously, specially so when allegations in the departmental proceedings are not identical and are different. Accordingly, the punishment awarded to the petitioner departmentally would not call for any interference. The writ petition, therefore, is dismissed in limine. November 11, 2009 ( RANJIT SINGH ) ramesh JUDGE Civil Writ Petition No.17234 of 2009 : 7 :