SBCWP5701/1997 // 1 // IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR ORDER IN S.B. Civil Writ Petition No.5701/1997 Naushad Ali Vs. State of Rajasthan and Another Date of Order ::: 23rd March, 2010 Present Hon'ble Mr. Justice Mohammad Rafiq Shri Sanjeev Prakash Sharma, Counsel for petitioner Shri M.F. Baig, Deputy Government Counsel for respondents #### //Reportable// By the Court:- This writ petition was filed by petitioner Naushad Ali way back in the year 1997 assailing the order dated 29.06.1996 of his dismissal from service and order dated 18.06.1997 of the appellate authority thereby rejecting his appeal against the former order. In this writ petition, petitioner has prayed for issuance of a writ of mandamus quashing aforesaid two orders and directing to respondents to reinstate him back in service with all consequential benefits. Factual matrix of the case is that petitioner was initially appointed as a SBCWP5701/1997 // 2 // constable (Guard) in Jail Department on 02.08.1978 and was posted at Sub Jail, Malpura in District Tonk. An incident of break up of jail took place in that Jail on 02.05.1994 wherein six under-trial prisoners escaped from the jail by cutting rods of bathroom window. Petitioner was on duty in jail as a rifle sentry at its main gate from 10 PM to 2 AM in the intervening night of the fateful day. Disciplinary proceedings were initiated against petitioner and few other delinquents. Petitioner was served with a charge-sheet under Rule 16 of the Rajasthan Civil Services (Classification, Control & Appeal) Rules, 1958 (for short, 'the CCA Rules') on 19.07.1994 wherein four charges were levelled against him, crux of which was that he was grossly negligent when the prisoners cut the rods of bathroom window during his duty hours in the intervening night of 2nd and 3rd of May, 1994 owing to which six prisoners, namely, Baldev Singh, Harvindra Singh, Dalip Sharma, Umesh @ Mahendra, Prahlad Ram Sharma and Sukh Dev Singh escaped from the jail. Conduct of petitioner was violative of Rules 81 to 84 and 253 (f) of the Jail Manual, 1984, Part 10 Section 3 thereof, because thereby he helped the prisoners escape from the SBCWP5701/1997 // 3 // jail. SBCWP5701/1997 // 4 // On receipt of charge-sheet, petitioner by application dated 05.08.1994 requested disciplinary authority to make him available concerned record for inspection. The disciplinary authority however as per allegation of petitioner, without awaiting for his reply, appointed enquiry officer by order dated 23.01.1995. The Inspector General (Jail) wrote a letter to enquiry officer on 04.05.1995 that as and when petitioner demanded record, the same may be made available to him. Petitioner submitted an application to the Director General of Police on 24.07.1995 pointing out that demanded record was not made available to him. Petitioner specifically pointed out seven different documents which he demanded and were not supplied to him, on the basis of which preliminary enquiry report was prepared, namely, statements of Sentry Mohammad Sharif, prisoner Farid Mohammad S/o Shamsuddin, prisoner Panchya, prisoner Mool Singh, Sentry Radhey Shyam, Assistant Jailer Shri Ramswaroop and Sentry Ramphool Meena. Petitioner was served with show cause-notice on 30.03.1996 along-with report of enquiry, calling upon him to submit his explanation and show cause within a fortnight as to why he should not be removed SBCWP5701/1997 // 5 // from service. Petitioner submitted detailed reply to show-cause notice on 08.05.1996 pointing out certain discrepancies made in the enquiry and the fact that there was no difference between the statements recorded during departmental enquiry and those recorded during criminal trial. Disciplinary authority however by his order dated 29.06.1996 dismissed the petitioner from service. Appeal filed by petitioner was also dismissed by order dated 18.06.1997. Hence this writ petition. Shri Sanjeev Prakash Sharma, learned counsel for petitioner, has argued that despite specific demand by petitioner, he was not provided services of defence nominee. This was violative of Rule 16(5) of the CCA Rules. This fact has been admitted by enquiry officer in his report that petitioner demanded by written application and was not yet provided with services of defence nominee. Enquiry officer in the report also admitted that even though petitioner had also requested for inspection of record but as per instruction received from the office of Director General of Prisons dated 23.05.1995, only two of the delinquents were allowed to inspect the record and not the petitioner. Other delinquents were Ram Phool SBCWP5701/1997 // 6 // Meena, Head Constable, Ram Swaroop, Assistant Jailer and Sentry Bala Sahai. Learned counsel has referred to the findings recorded by enquiry officer on charges against petitioner from Page 21 onwards of enquiry report. Learned counsel submitted that enquiry officer has held petitioner guilty on the basis of petitioner's own statement in the cross-examination by co-delinquent, who wanted to shift entire burden upon him. This was a serious irregularity inasmuch the enquiry officer committed yet another illegality by taking into consideration statement of petitioner recorded by police under Section 161 of Code of Criminal Procedure during investigation on 14.09.1995 solely with purpose of holding him guilty. While on one hand, the enquiry officer accepted that petitioner being on duty as rifle sentry at main gate of the jail, thus accepting that he was not required to enter the jail to check the barrack but on the other hand, he also observed that he could certainly keep a vigil even from outside the jail by looking through the hole of main gate as to what activities were going on inside. The enquiry officer on the basis of statement of petitioner that there was no noise during the SBCWP5701/1997 // 7 // period of his duty, has proceeded to hold that petitioner was hand in gloves with ran away prisoners. Statements of co-delinquents have been taken into consideration to hold that the incidence of escape occurred during the period when petitioner was on duty, whereas there was clear evidence to the effect that at 2.30 am Jailer was reported about escape by Sentry Radhey Shyam, who replaced the petitioner at 2.00 AM. Thus actually escape occurred when petitioner seized to be on duty. Shri Sanjeev Prakash Sharma, learned counsel for the petitioner, further submitted that disciplinary authority has failed to take into consideration the detailed representation submitted by petitioner on 08.05.1996 raising objections about enquiry report to the disciplinary authority. It was argued that petitioner specifically raised the point that when he demanded inspection of record and approached the office of disciplinary authority, the record was not made available to him and that it was informed to him that record was sent to court of concerned Additional Chief Judicial Magistrate. The provisions of Rule 16 (3) of the CCA Rules were thus flouted. Petitioner for this reason could not file reply SBCWP5701/1997 // 8 // to the charge-sheet. Petitioner had specifically objected to continuity of proceedings of departmental enquiry without availability of record and also in view of the fact that the criminal trial was pending in the court on the same charges, yet the disciplinary proceedings were continued to be carried out. Learned counsel submitted that by reason of not allowing him services of defence nominee, his defence was seriously prejudiced because petitioner himself was only middle school pass. Petitioner was allowed to be cross-examined by his co-delinquents but defence witnesses produced by them were not available for cross-examination by petitioner. In this manner, petitioner suffered serious prejudice because in order to save co- delinquents, who were also charged for same delinquency, entire burden was shifted onto the petitioner. Not only this, petitioner was not allowed to cross-examine co-delinquents. Their evidence therefore could not be read against him and they could not be treated as witness of the department to prove the charge against petitioner. Statement of prisoner Panchya, produced as PW-2, could not be accepted as a witness. He stated that when he heard shout of SBCWP5701/1997 // 9 // another prisoner Mool Singh to the effect that some prisoners had escaped from jail, he made such statement even before the police and the criminal court, but his statement was never placed before the enquiry officer. Learned counsel submitted that the sole basis on which disciplinary proceedings were initiated was the statement of Mool Singh, a prisoner, who in his statement recorded under Section 164 Cr.P.C. stated that he raised alarm from inside the jail premise and called petitioner to say that some prisoners were trying to escape from the jail but the petitioner did not pay any heed to him. He was not produced as a witness during the departmental enquiry. In his statement recorded during criminal trial, however, he clearly stated that he gave the earlier statement under pressure from SHO Shri Bajrang Lal and that when he was giving his statement before the Magistrate, Bajrang Lal was also present who directed him to make such statement and also sign the statement. Learned counsel submitted that in the case of petitioner a separate order was passed by disciplinary authority on 29.06.1996 dismissing him from service, whereas show cause notice was given to him only for removal from SBCWP5701/1997 // 10 // service. Separate order was passed awarding penalty of stoppage of one grade increments without cumulative effect, respectively to Ramphool Meena, Head Constable and Ram Swaroop, Assistant Jailer, respectively, each on 17.07.1996. This was again a serious illegality because if joint enquiry was conducted, the penalty against delinquents should have been imposed by common order, though thereby, may be awarding them different penalties. Appeal filed by petitioner was dismissed on the basis of preliminary enquiry report of Superintendent Central Jail, Ajmer, observing that petitioner received a sum of Rs.25,000/- as illegal gratification, although no such charge was ever framed against petitioner in disciplinary proceedings. The appellate authority has thus dismissed appeal on extraneous consideration not germane to record. Even though the appellate authority had found that all delinquents are equally responsible for escape of prisoners from jail but dismissed appeal of petitioner only. Learned counsel submitted that the criminal court by its judgment dated 22.02.2006 acquitted petitioner of charges under Section 221 of Indian Penal Code, but at the same time SBCWP5701/1997 // 11 // convicted Sub Jailer Ram Swaroop for offence under Section 221 IPC and sentenced him to undergo 2 years SI with fine of Rs.1000/-. It was argued that departmental enquiry could not have been continued during pendency of criminal trial in view of law laid down by the Supreme Court in Capt. M. Paul Anthony Vs. Bharat Gold Mines – 1999 (3) SCC 679 and Roop Singh Negi Vs. PNB – 2009 (6) SCC 570. Learned counsel for petitioner citing judgment in Roop Singh Negi's case (Supra) specifically argued that in that case admission/confession of delinquent employee before police authorities was taken into consideration, it was held that subsequent acquittal by criminal court on the self same evidence cannot be ignored. Learned counsel submitted that the Supreme Court held that confession of delinquent should have been proved by other independent evidence and could not be relied upon by itself for holding him guilty. In the present case also the statement of petitioner recorded by police under Section 161, Cr.P.C., could not be considered. Learned counsel for petitioner also relied on the judgment of Supreme Court in M.V. Bijlani Vs. UOI – 2006 (5) SCC 88 on the question of burden SBCWP5701/1997 // 12 // and standard of proof. Reliance was placed on the judgment of the Supreme Court in Basanti Prasad Vs. Chairman, Bihar School Examination Board – 2009 (6) SCC 791, in which case also the delinquent was acquitted of charge in the criminal case and on that basis, the order of penalty in disciplinary proceedings was held to be bad. Learned counsel for petitioner relied on judgments of the Supreme Court in State of U.P. Vs. Mohammad Sharif – 1982 (2) SCC 376, Committee of Management, Kishan Degree College Vs. Shambhu Sharan Pandey – 1995 (1) SCC 404 and Sawai Singh Vs. State of Rajasthan – (1986) 3 SCC 454, to argue that enquiry proceedings stood vitiated as the documents were not made available to the petitioner. Learned counsel also relied on Division Bench decision of this Court in Babu Lal vs. State of Rajasthan & Others - 2000 (3) RLR 416 and argued that this court interfered on the question of quantum of dissimilar penalty awarded to otherwise similarly situated delinquents and argued that the Court can make interference even on proportionality of penalty on the ground of discrimination as well. Shri M.F. Baig, learned Deputy SBCWP5701/1997 // 13 // Government Counsel appearing for respondents, opposed writ petition and submitted that when charge-sheet was served upon petitioner, it was clearly informed to him that if he wanted inspection of record, he should supply the list of documents which he wanted to rely in order to defend himself. The petitioner by application dated 05.08.1994 only requested for permitting him to inspect the relevant record but never supplied the list of documents which he wanted to inspect. In spite of the fact that in the charge-sheet dated 09.07.1994, a clear cut time limit of 15 days was given to him to file reply, but neither he made request to inspect the documents nor did he file any reply to the charge-sheet. He was given one more opportunity and still he failed to do so. The disciplinary authority by its letter dated 06.07.1994 required the petitioner to inspect the documents. Having failed to inspect the documents, the petitioner again submitted an application on 24.07.1995 stating that enquiry officer has not provided complete record instead he made available only certain Photostat copies which were not legible. The enquiry officer gave ample opportunity to petitioner. Even though petitioner did not file SBCWP5701/1997 // 14 // reply to charge-sheet, he granted him as many as five opportunities to file reply. Rather on 06.07.1995 petitioner gave in writing to enquiry officer that he was not willing to lead any evidence in his defence. The enquiry officer completed the enquiry in just and reasonable manner and in conformity with provisions of CCA Rules. All charges were found proved against petitioner on testimony of prosecution witnesses. Learned counsel submitted that the charge no.1 was found fully proved against petitioner because it was he who was working as sentry on the night duty from 10 pm to 2 am in the intervening night of 2nd and 3rd of May, 1994 when six prisoners broke open the jail and ran away. Petitioner was liable to check locks and fencing and also liable to enquire from the prisoners of jail in terms of Rules 81 to 84 of Jail Manuals, 1984, Part 10 Section 3. The enquiry officer has recorded finding of his guilt on this charge on the basis of documentary evidence Exhibit P-1, P-2 and P-6. He has clearly recorded that at the relevant time sentry Bala Sahai was absent and his charge was also transferred to petitioner in alternative arrangement. The enquiry officer clearly noted that petitioner himself in his SBCWP5701/1997 // 15 // statement as PW-6, has admitted that at the time of taking charge he ensured by looking through holes of main gate that everything was alright and he also ensured that all nine prisoners were in jail. This was ensured by him at 12.00 Hours in night and thereafter he did not get any report till 2.00 am. The learned counsel submitted that as per the relevant Rules he was duty obliged to take report of the prisoners at each and every hour but he enquired about the same only once. Charge No.2 was also fully proved against petitioner because he was not vigilant enough to curb the noise which was purposely raised in the name of 'kirtan' to facilitate cutting of iron bars. Even though the barrack in which the detenus were lodged was situated only 40 ft. away from his duty point, petitioner did not ensure its safety. His conduct was thus violative of Part 104 Section 3 Rule 71 and Part 8 Section 14 Rule 253(f) of Jail Manual, 1951. The enquiry officer has fully supported his finding on the testimony of PW-2 Panchya and PW-3 Harjinder Singh, both under-trial prisoners, who stated that between 10 pm to 2 am no 'bhajan-kirtan' was going on. Despite complete silence if petitioner was not SBCWP5701/1997 // 16 // able to hear noise of cutting of iron bars from bare distance of 30-40 ft., he was utterly negligent in discharge of his duties. Charge No.3 with regard to negligence was also proved that when petitioner was on duty at 1.30 am, prisoner Mool Singh shouted from inside the jail to inform him about attempt of escape made by prisoners, but petitioner rather scolded him and instead asked him to sleep. Petitioner till he handed over charge to another rifle sentry Radhey Shyam at 2 am, did not inform of this fact to either him or Assistant Jailer or any other authority. Thus, he was fully responsible for the incident. Learned counsel referred to certain excerpts from the statements of PW-2 Panchya, under-trial prisoner, and PW-4 Radhey Shyam, Sentry, who replaced the petitioner as rifle sentry, stating that when he was awakened by petitioner to take charge, immediately on his awakening he heard noise from inside the jail; he immediately rushed to main gate and saw through the small windows, the prisoners were crying and raising voice that certain prisoners have escaped but petitioner never informed about the incident. Learned counsel submitted that petitioner himself appeared as a witness SBCWP5701/1997 // 17 // as PW-6 and in his statement he stated that at about 1.50 am, on hearing noise from Mool Singh from inside jail, he awakened Sentry Radhey Shyam and asked him to go inside the jail. The learned counsel submitted that therefrom it is clear that till then Radhey Shyam was not on duty and petitioner himself was on duty. Charge No.4 was also fully proved against petitioner as during his duty hours prisoners ran away and this fact came to his notice much before his duty hours expired but he did not raise alarm as per Rule 81(6) of Section 3 of Part 10 of jail Manual 1951, and also did not inform about this fact to higher authorities. This clearly shows that petitioner had known about escape of prisoners much before his duty hours came to an end and that he wanted to pass on the entire blame onto the incoming rifle sentry Radhey Shyam by keeping mum till 2 am. Shri M.F. Baig, learned Deputy Government Counsel appearing on behalf of respondents, further submitted that criminal court had framed four charges against petitioner. In this connection, it may be noticed that PW-4 Radhey Shyam made a statement before the court that at 2.00 am when he was SBCWP5701/1997 // 18 // awakened by petitioner Naushad Ali, he heard him saying that six prisoners have ran away and Radhey Shyam after taking keys from petitioner opened the gate and went inside the barrack to check; he also awakened Ramphool. It clearly shows that keys of the jail were still with the petitioner when the incident took place. The criminal court acquitted petitioner by giving him benefit of doubt, however such an observation does not absolve petitioner of his negligence or connivance. Charges in the criminal trial and disciplinary proceedings were materially different. The learned counsel relied on the judgment in Commissioner of Police Vs. Narendra Singh – 2006 (4) SCC 265 and argued that the degree and extent of proof required in recording a finding of guilt by any criminal court and in a departmental proceedings are different. While in the former, charges have to be proved beyond reasonable doubt but in the departmental proceedings, such guilt can be recorded even if the charges are proved by preponderance of evidence. Acquittal of accused in criminal trial by itself could not be therefore a ground not to initiate departmental proceedings against him and drop the same in the event of his acquittal. SBCWP5701/1997 // 19 // Learned counsel referring from Para 13 of the judgment of the Supreme Court in Commissioner of Police's case (supra) and also from discussion in Capt. M. Paul Anthony's case (supra), argued that the same view has been expressed by the Supreme Court. It is therefore prayed that writ petition be dismissed. Whether or not disciplinary proceedings can be initiated while delinquents were separately facing criminal trial, on same or analogous charges, is the question which needs to be answered first, particularly when petitioner Naushad Ali has been acquitted by criminal court of the charge for offence under Section 221 of the Indian Penal Code (for short, 'the IPC') but he was dismissed from service by the impugned order passed by the disciplinary authority. Co-delinquent Ramswaroop, Sub Jailor, was held guilty for committing offence under Section 221 IPC and was sentenced to undergo simple imprisonment of 2 years with fine of Rs.1000/-. In disciplinary proceedings however, he was awawrded penalty of stopage of one grade increments with cumulative effect. Answer to this question would depend on the fact whether the charges against petitioner in criminal trial as also in disciplinary SBCWP5701/1997 // 20 // proceedings were same and were founded on same set of evidence. In criminal trial where a stricter degree of proof is required to be applied and the charge has to be proved beyond reasonable doubt. Even after applying strict degree of proof when he has been acquitted of the charge for offence under Section 221 IPC, can he be punished for above referred to four charges in the disciplinary proceedings which in essence are about his negligence in performance of duty in violation of different provisions of Jail Manual, is the core issue in the present case. In Capt. M. Paul Anthony's case (Supra) it was held by the Supreme Court that there is a consensus of judicial opinion on basic principle that proceedings in a criminal case and departmental proceedings can go on simultaneously, except where departmental proceedings and criminal case are based on same set of facts and that the evidence in both the proceedings is common. Basis for this proposition is that proceedings in a criminal case and departmental proceedings operate in distinct and different jurisdictional areas. In departmental proceedings, factors operating in the mind of disciplinary authority may be many, SBCWP5701/1997 // 21 // such as enforcement of discipline, or to elicit a level of integrity in the staff. Standard of proof required in those proceedings is also different from that required in a criminal trial. While in departmental proceedings, the standard of proof is one of preponderance of probabilities, whereas in a criminal trial, the charge has to be proved by the prosecution beyond reasonable doubt. In G.M. Tank Vs. State of Gujarat (2006) 5 SCC 446, departmental enquiry and criminal proceedings were based on same set of charges, evidence and witnesses, and there was no other evidence against employee to hold him guilty. The employee was honorably acquitted in criminal trial, during pendency of proceedings challenging dismissal. It was held by the Supreme Court that when two proceedings are based on identical and similar set of facts and charges against delinquent in both proceedings are one and same, and that there is no evidence agaisnt the employee to hold him guilty of having illegally accumulated excess income by way of gratification, the witnesses, who were examined in disciplinary proceedings were the same witnesses, who were examined in criminal case too and the criminal court came to SBCWP5701/1997 // 22 // conclusion that the prosecution has not been able to prove guilt alleged against employee beyond reasonable doubt and acquitted him by judicial pronouncement which was made after regular trial and on hot contest, in these circumstances, it would be unjust and unfair and rather oppressive to allow the findings recorded in the departmental proceedings to stand. In Union of India and Others Vs. Naman