IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Special Appeal No. 213 of 2009 Date of Decision : 22-12-2009 Vijay Pal Singh and another …Appellants Versus State of Uttarakhand and others …Respondents Mr. S.N. Babulkar, Senior Advocate with Mr. K.S. Bora, Advocate for the appellants Mr. J.P. Joshi, Advocate for the respondents JUDGEMENT Coram: Hon’ble J.S. Khehar, C.J. Hon’ble B.C. Kandpal, J. J.S. Khehar, C.J. (Oral) Both the appellants were inducted into the service of the Police Department as Constables in 1998. On 19.12.1998, both appellants were directed to take an accused Bhagyan Das from Tehri Garhwal jail to a hospital, where Bhagyan Das was to be examined. On his examination, he was further referred to Suman Combined Hospital. Accordingly, both the appellants were escorting Bhagyan Das to the aforesaid Suman Combined Hospital. On their way to the bus station to board a bus to transport the accused to the said hospital, the aforesaid accused Bhagyan Das requested the appellants to take him to a toilet to answer a call of nature. The appellants, accordingly, escorted the accused to a toilet, and permitted him to answer the call of nature, along with his handcuffs. Both the appellants remained stationed outside. It so transpires that the accused Bhagyan Das, escaped from the custody of the appellants by jumping out of a window located at the backside of the toilet. The instant incident occurred on 19.12.1998. 2. Based on the factual narration noticed in the aforesaid foregoing paragraphs, Criminal Case No.44 of 2000 was registered against the appellants, inter alia, under Section 223 of 2 the Indian Penal Code. Section 223 of the Indian Penal Code is being extracted hereunder: “223. Escape from confinement or custody negligently suffered by public servant.- Whoever, being a public servant legally bound as such public servant to keep in confinement any person charged with or convicted of any offence [or lawfully committed to custody], negligently suffers such person to escape from confinement, shall be punished with simple imprisonment for a term which may extend to two years, or with fine, or with both.” It is not a matter of dispute, that on the culmination of the proceedings emerging out of the aforesaid criminal case, both the appellants were acquitted on 19.03.2005. 3. It also transpires, that in a separate and distinct preliminary inquiry (besides the criminal prosecution initiated against the appellants) was also ordered against the appellants. In the aforestated preliminary inquiry, besides the negligence at the hands of the appellants, whereby the accused Bhagyan Das allegedly escaped on 19.12.1998, it was also concluded, that inspite of the escape of the accused on 19.12.1998 the appellants reported the matter to the concerned authorities on 21.12.1998. And furthermore, that, the appellants after the escape of the accused Bhagyan Das, remained absent from duty from 20.12.1998 to 26.12.1998. In the preliminary inquiry conducted against the appellants, the inquiry officer suggested two punishments, firstly, removal from service on account of the negligence of the appellants, and secondly, denial of pay for the period from 20.12.1998 to 26.12.1998 on account of the absence of the appellants from duty (under the principle of no work no pay). 4. Consequent upon the receipt of the report of the preliminary inquiry officer, a charge sheet dated 10.05.2006 was issued to the appellants. The appellants submitted their replies, whereupon, a regular departmental inquiry was conducted. On 11.12.2006 the appellants were furnished with a 3 copy of the inquiry report, and simultaneously, were required to show cause why action contemplated under the Punishment and Appeal Rules be not taken against them. The appellants filed their replies to the aforestated show cause notice on 22.12.2006. Thereafter, by an order dated 01.10.2007 the punishment of removal from service was inflicted upon them. 5. The aforesaid order dated 01-10-2007 was subject matter of challenge at the hands of the appellants in Writ Petition (S/S) No. 1847 of 2007. By an order dated 08.10.2009 the writ petition preferred by the appellants was dismissed by a learned Single Judge of this Court. Through the instant Special Appeal the appellants have assailed the order passed by the learned Single Judge on 08.10.2009. 6- The first contention advanced by the learned counsel for the appellants is based on para-493 of Police Regulations. Para-493 of the Police Regulations is being extracted hereunder: Para 493/Police Regulations “It will not be permissible for the Superintendent of Police in the course of a departmental proceeding against a police officer who has been tried judicially to re-examine the truth of any facts in issue at his judicial trial, and the finding of the court on these facts must be taken as final”. Thus, (a)…… (b)…… (c) If the accused has been judicially acquitted or discharged, and the period for filing an appeal has elapsed and/or no appeal has been filed the Superintendent of Police must at once reinstate him if he has been suspended; but should the findings of the Court not be inconsistent with the view that the accused has been guilty of negligence in, or unfitness for, the discharge of his duty within the meaning of Section 7 of the Police Act, the Superintendent of Police may refer the matter to the Deputy Inspector General and ask for permission to try the accused departmentally for such negligence or unfitness.” 4 Based on the aforesaid provision, it is the vehement contention of the learned counsel for the appellants, that once the appellants had been acquitted honourably, in furtherance of criminal prosecution initiated against them, there was no question of the authorities in re-examining the same controversy. In fact, it is the vehement submission of the learned counsel for the appellants, that the finding recorded in the judicial trial could not have been re-examined during the course of a departmental proceeding, as the same are specifically and expressly barred. 7. To examine the veracity of the contention advanced by learned counsel for the appellants, it is essential to evaluate the charges levelled against the appellants in the charge sheet dated 10.05.2006. Accordingly, an extract of two charges levelled against the appellants, is being reproduced hereunder: “1. ;g fd vki tc o"kZ 1998 esa iqfyl ykbZu ujsUnz uxj esa tuin fVgjh x<oky esa fu;qDr Fks rks fnukad 19-12- 98 dks iqfyl ykbu ujsUnz uxj ls vkidks vfHk;qDr HkkX;ku nkl iq= Jh xksjsnkl fuoklh ewaxjk ukSxkao Fkkuk iqjkSyk ftyk mRrjdk'kh dk mipkj gsrq la;qDr fpfdRlky; fVgjh ys tkus ds fy, ftYkk tsy fVgjh jokuk fd;k x;kA vki fnukad 19- 12-98 dks ftyk tsy fVgjh x, o tsy ls vfHk;qDr HkkX;ku nkl mijksDr dks ftyk dkjkxkj ls gFkdMh ysdj vfHk;qDr dks gFkdMh yxkdj viuh vfHkj{kk esa la;qDr fpfdRlky; ys x, A ftyk tsy ls vfHk;qDr dks vkidh vfHkj{kk esa nsrs le; rRdkyh cUnh j{kd fot; dqekj }kjk vkidks fgnk;r nh xbZ Fkh fd mDr cUnh ,d ckj iqfyl vfHkj{kk ls Qjkj gks pqdk gS bldh fuxjkuh Bhd izdkj ls djukA vfHk;qDr dks la;qDr fpfdRlky; fVgjh ys tkdj fpfdRld }kjk izkFkfed mipkj gsrq lqeu fpfdRlky; ujsUnz uxj jsQj dj fn;kA vfHk;qDr dks ysdj vki cl LVsaM fVgjh vk, tgka ls vfHk;qDr 'kkSp gsrq lkoZtfud 'kkSpky; x;k vkSj vkidh vfHkj{kk ls Qjkj gks x;k vkSj vkids }kjk vfHk;qDr ds Qjkj gks tkus dh lwpuk rRdky utnhdh Fkkuk@pkSdh ;k 5 mPpkf/kdkfj;ksa dks u nsdj dkQh foyEc ls fnukad 21-12-98 dks nsdj cjrh xbZ ykijokgh ds vkjksi esa A 2- ;g fd fnukad 19-12-98 dks cUnh vfHk;qDr HkkX;ku nkl ds vkidh fgjklr ls Qjkj gks tkus ds Ik'pkr vki fnukad 26-12-98 rd dqy 7 fnol vukf/kd`r :i ls vuqifLFkr jgus o vius drZO;ksa ds izfr mnklhu jgus ds vkjksi esaA ,rn}kjk vkils izR;sd vkjksi ds mRrj esa vius cpko dk fyf[kr fooj.k fnukad 12-06-2006 dks ;k mlls iwoZ izLrqr djus dh vis{kk dh tkrh gSA vkidks lpsr fd;k tkrk gS fd ;fn v/kksgLrk{kjh }kjk vuqer le; ds Hkhrj vkils ,slk dksbZ fooj.k i= izkIr ugha gksrk gS rks ;g vo/kkj.kk fd tk;sxh fd vkidks dqN ugha dguk@izLrqr djuk gS vkSj vkids ekeys esa rn~uqlkj vkns’k ikfjr dj fn;s tk;saxsA lkFk gh lkFk vkils v/kksgLrk{kjh dks fyf[kr :i ls ;g lwfpr djus dh vis{kk dh tkrh gS fd D;k vki O;fDrxr lquokbZ ds fy, bPNqd gSa vkSj ;fn vki fdlh lk{kh dh ijh{kk@izfrijh{kk djkuk pkgrs gSa rks vius fyf[kr fooj.k ds lkFk mudk uke vkSj irk vkSj lk{k dk ftls izR;sd ,sls lk{kh ls nsus dh izR;klk dh tk;sxh fooj.k izLrqr djus dh vis{kk dh tkrh gSA 8. Section 223 of the Indian Penal Code extracted hereinabove, was with the object of ascertaining the extent of the charge that could be levelled against the appellants thereunder. A perusal of Section 223 of the Indian Penal Code reveals, that negligence resulting in escape from confinement, is the basis of the offence envisaged under Section 223 of the Indian Penal Code. A careful perusal of the two charges levelled against the appellants, however, reveals that during the course of the departmental proceedings, escape from confinement as a consequence of negligence at the hands of the appellants, was not a charge levelled against the appellants. Instead the charge levelled against the appellants was, firstly, that despite the fact that the accused Bhagyan Das had escaped from custody on 19.12.1998, they informed the Superintendent 6 of Police about the aforesaid escape after two days on 21.12.1998. In so far as the second charge is concerned, the same pertains to their absence from duty from 20.12.1998 to 26.12.1998. In the aforesaid view of the matter we are satisfied that determination rendered by the criminal court, while acquitting the appellants on 19.03.2005 was not the basis of the determination in the departmental proceedings conducted against them. Accordingly, while, taking action against the appellants it cannot be said that the respondents violated the mandate of Para 493 of the Police Regulations. Inspite of our aforesaid conclusion, it is necessary to also notice that under Clause 3 of Para 493 of the Police Regulations, it was open to the respondents to initiate proceedings, which were not inconsistent with the determination rendered during the course of criminal prosecution. Since the charges levelled against the appellants as have been noticed hereinabove, were separate and distinct from the criminal prosecution initiated against them, it is clear that the same fell within the ambit of the power vested with the respondents under Clasue 3 aforesaid. In view of the above, we find no merit in the first contention advanced by learned counsel for the appellants. 9. The second contention advanced by the learned counsel for the appellants was, that the charges levelled against the appellants in the criminal prosecution, as also in the departmental proceedings, emerge from the same facts and circumstances, as also the same evidence, and as such, although couched in different words, in effect what was sought to be alleged against the appellants during the course of the criminal prosecution initiated against them, was once again alleged against them, during the course of the departmental proceedings. 10. We have given our thoughtful consideration to the second contention advanced by learned counsel for the appellants. It is, however, not possible for us to accept the 7 second contention for the same reasons, as have been recorded, while deliberating upon the first submission advanced by learned counsel for the appellants. As such, we find no merit even in the second contention advanced by learned counsel for the appellants. 11. The third contention advanced by learned counsel for the appellants was, that after the culmination of the departmental inquiry, in the inquiry report dated 11.12.2006, the inquiry officer had recommended two punishments against the appellants, firstly, he had recommended that the appellants should be removed from service. And, secondly, the inquiry officer recommended that the appellants should not be released emoluments for the period from 20.12.1998 to 26.12.1998, under the principle of no work no pay. Based on the recommendation of the inquiry officer, it is the vehement contention of the learned counsel for the appellants, that entire action initiated against the appellants by the respondents stands vitiated. 12. It is not possible for us to accept even the third and last contention advanced at the hands of the learned counsel for the appellants. Although, it is improper for an inquiry officer to suggest any punishment, since the discretion to inflict a punishment is vested in the punishing authority. In the facts and circumstances of the present case, it is apparent that the punishing authority exercised its own discretion by merely inflicting the punishment of removal from service on the appellants vide order dated 01.10.2007. Having not inflicted the appellants with the second suggested punishment by itself is sufficient to conclude that the punishing authority exercised its own discretion in its own wisdom. Thus viewed, we find no merit even in the last contention advanced by learned counsel for the appellants. By a separate order dated 01.10.2007, the respondents denied wages to the appellants for the period from 20.12.1998 to 26.12.1998, as had been suggested in the inquiry 8 report dated 11.12.2006. In so far as the instant order dated 01.10.2007 is concerned, the same has nothing to do with the departmental proceedings initiated against the appellants. The same was an administrative order passed by the authorities on account of absence of the appellants from service for the period from 20.12.1998 to 26.12.1998. As such, we are satisfied, that the instant order denying wages to the appellants, cannot be read along with the order of punishment inflicted upon them (in furtherance of the departmental inquiry held against them). 13. For the reasons recorded hereinabove, we find no merit in the instant special appeal. The same is, accordingly, dismissed. (B.C. Kandpal, J.) (J.S. Khehar, C.J.) 22.12.2009 SP