IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR ORDER SB CIVIL WRIT PETITION NO.4302/1994 Sambhu Singh V/s The State of Rajasthan & anr. Date of order :: :: November 16, 2006 PRESENT HON'BLE MR. JUSTICE P.S. ASOPA Mr.Nitin Jain, for the petitioner. Dr.A.S. Khangarot, Addl. GA, for the respondents. REPORTABLE 1. The instant writ petition is directed against the order dated 9.6.1993 passed by the Superintendent of Police (Railway) Rajasthan, Ajmer, whereby the petitioner has been dismissed from service and the order dated 16.3.1994 of the Appellate Authority – Deputy Inspector General of Police (Railway) Rajasthan, Jaipur, whereby the appeal filed by the petitioner against the aforesaid dismissal order has been rejected. 2. Briefly stated the facts of the case are that petitioner's services were initially terminated on 9.9.1985 on the ground that a criminal trial under Section 342, 366, 376/34 IPC is pending against him. The said order was challenged by the petitioner before the Service Tribunal and the Service Tribunal vide its order dated 3.12.1987 set aside the termination order on the ground that the order has been passed without conclusion of the trial and without holding any departmental enquiry. On 25.6.1988, the petitioner was suspended in contemplation of enquiry for the same charges, which were tried by the criminal court i.e. Sessions Judge, Pali, wherein he was acquitted vide order dated 9.9.1986. During criminal trial as well as departmental enquiry, statements of prosecutrix – Smt. Daariya and her companion (Mausi) – Smt. Tara were examined and both have not supported neither the version of the prosecution nor of the department. The enquiry officer vide its report dated 15.12.1990 concluded that he is unable to say whether rape has been committed or not, however, he further held the charge partially proved, without specifying which part has been proved. 3. It is stated in the writ petition that neither the copy of the enquiry report dated 15.12.1990 nor the notice of disagreement was given, by the disciplinary authority, who had disagreed with the finding of the enquiry officer and passed the order of dismissal vide order dated 9.6.1993. The petitioner filed an appeal against the said order and the appellate authority vide its order dated 26.5.1992 set aside the order dated 31.12.1990 and remanded the matter to the respondent No.3 – The Superintendent of Police (Railway) Rajasthan, Ajmer for following the procedure as laid down in Rule 16 (10) of the Rajasthan Civil Services (Classification, Control & Appeals) Rules, 1958 (hereinafter to be referred as “the CCA Rules”) as interpreted by the Rajasthan High Court and Supreme Court for giving the copy of the enquiry report and in case of disagreement, notice of disagreement be given. Thereafter, the petitioner be allowed to submit his representation and his objection be considered. The further case of the petitioner is that without complying with the aforesaid directions, the respondents have simply asked by the letters to the petitioner to obtain photocopy / certified copy of the available record and submit his reply, but neither the copy of the enquiry report nor notice for disagreement was given. Again the dismissal order was passed on 9.6.1993. Against order dated 9.6.1993 the petitioner preferred an appeal, which was also rejected on 6.3.1994. 4. The respondents have filed reply to the writ petition and submitted that opportunity was granted to the petitioner, but he had not availed the same. The respondents are not able to point out any date of dispatch of copy of the enquiry report or notice of disagreement to the petitioner. 5. The submission of counsel for the petitioner Mr.Nitin Jain is that the petitioner has been acquitted in the criminal trial as the prosecution utterly failed to prove the charge, therefore, in view of judgment of the Supreme Court reported in (2006) 5 SCC 446 - G.M. Tank V/s State of Gujarat & Ors., the departmental enquiry was not desirable and dismissal order is not sustainable on the same set of facts and charge. Even otherwise, charge of rape and other charges is not proved from record of enquiry. Since the charge was partly proved, therefore, it was incumbent upon the respondents to give him copy of the enquiry report and further when the disciplinary authority made up his mind to disagree with the finding of the enquiry officer on the issue that no rape was committed, then it was also incumbent upon him to give notice of disagreement. The aforesaid non-compliance of mandatory provisions of law as envisaged under Rule 16 (10) of the CCA Rules as well as the interpretation of the same given by the High Court and Supreme Court and lastly by Appellate Authority in its first judgment dated 26.5.1992 wherein reference of the departmental instructions has also been made, renders the impugned order violative of Rule 16 (10) of the CCA Rules as well as the principle of natural justice as enunciated by the Supreme Court. 6. The submission of counsel for the respondents is that charge in departmental enquiry is of defaming the police department on account of certain acts of the petitioner is not the offence, but certainly the same is a misconduct. Counsel for the respondents also submits that criminal court has given the benefit of doubt while acquitting the petitioner and in the charge also, the said fact is mentioned. The disciplinary authority as well as the appellate authority while passing orders dated 9.6.1993 and 16.3.1994 have acted in accordance with Rule 16 (10) of the CCA Rules and followed the principle of natural justice as the petitioner was given opportunities, but he has not availed the same. Further submission of counsel for the respondents is that from the record, entire charge is proved. 7. I have gone through the record of the writ petition and further considered rival submissions of the parties. 8. On the issue of departmental enquiry and criminal proceedings based on same set of facts, charges, evidence and witness then departmental enquiry is not permissible, counsel for the petitioner referred a judgment reported in (2006) 5 SCC 446 – G.M. Tank V/s State of Gujarat & Ors. The relevant para 20, 30 & 31 of the said judgment are as follows:- “20. It is thus seen that this is a case of no evidence. There is no iota of evidence against the appellant to hold that the appellant is guilty of having illegally accumulated excess income by way of gratification. The respondents failed to prove the charges levelled against the appellant. It is not in dispute that the appellant being a public servant used to submit his yearly property return relating to his movable and immovable and immovable property and the appellant has also submitted his return in the year 1975 showing his entire movable and immovable assets. No query whatsoever was ever raised about the movable and immovable assets of the appellant. In fact, the respondent did not produce any evidence in support of an/or about the alleged charges levelled against the appellant. Likewise, the criminal proceedings were initiated against the appellant for the alleged charges punishable under the provisions of the PC Act on the same set of facts and evidence. It was submitted that the departmental proceedings and the criminal case are based on identical and similar (verbatim) set of facts and evidence. The appellant has been honourably acquitted by the competent court on the same set of facts, evidence and witness and, therefore, the dismissal order based on the same set of facts and evidence on the departmental side is liable to be set aside in the interest of justice. 30. The judgments relied on by the learned counsel appearing for the respondents are distinguishable on facts and on law. In this case, the departmental proceedings and the criminal case are based on identical and similar set of facts and the charge in a departmental case against the appellant and the charge before the criminal court are one and the same. It is true that the nature of charge in the departmental proceedings and in the criminal case is grave. The nature of the case launched against the appellant on the basis of evidence and material collected against him during enquiry and investigation and as reflected in the charge-sheet, factors mentioned are one and the same. In other words, charges, evidence, witnesses and circumstances are one and the same. In the present case, criminal and departmental proceedings have already noticed or granted on the same set of facts, namely, raid conducted at the appellant's residence, recovery of articles therefrom. The Investigating Officer Mr. V.B. Raval and other departmental witnesses were the only witnesses examined by the enquiry officer who by relying upon their statement came to the conclusion that the charges were established against the appellant. The same witnesses were examined in the criminal case and the criminal court on the examination came to the conclusion that the prosecution has not proved the guilt alleged against the appellant beyond any reasonable doubt and acquitted the appellant by its judicial pronouncement with the finding that the charge has not been proved. It is also to be noticed that the judicial pronouncement was made after a regular trial and on hot contest. Under these circumstances, it would be unjust and unfair and rather oppressive to allow the findings recorded in the departmental proceedings to stand. 31. In our opinion, such facts and evidence in the departmental as well as criminal proceedings were the same without there being any iota of difference, the appellant should succeed. The distinction which is usually proved between the departmental and criminal proceedings on the basis of the approach and burden of proof would not be applicable in the instant case. Though the finding recorded in the domestic enquiry was found to be valid by the courts below, when there was an honourable acquittal of the employee during the pendency of the proceedings challenging the dismissal, the same requires to be taken note of and the decision in Paul Anthony case will apply. We, therefore, hold that the appeal filed by the appellant deserves to be allowed. (emphasis supplied) 9. There is no denial to the fact that main charge of rape is based on the same set of facts and evidence. There is a dispute between the parties whether the trial court in criminal case acquitted the accused petitioner on the ground that the prosecution has utterly failed to prove the charge or the acquittal is on the ground of benefit of doubt. I have gone through the judgment of the criminal case carefully. The para 12 of judgment of trial court acquitting the accused petitioner is as follows:- "12.कुलिमलाकरसाआ यकेउपरोÈ तǒव वेचनसेयहमुकदमा असफलहै।अिभयोजनप¢ अपनीसाआ यके आधारपर अिभयुÈ तगणकेǒवǾƮ आरोǒपतअपराधूमाǔणतकरनेमे सव[थाअसफलरहाहै।अिभयुÈ तगणकोसंदेहकालाभदेकर उनपरआरोǒपतअपराधधारा 363, 376, 342/34 आईपीसी सेबरȣ Ǒकयाजाताहै।अिभयुÈ तगणमɅ सेअिभयुÈ तराजेÛ ि िसंहजेलमɅ बतायाजाताहै।यǑदउसकȧ आवँ यÈ ताǑकसी अÛ यमुकदमɅ मɅ नहोताइसमुकदमेमɅ तुरÛ तजेलसेǐरहा ǑकयाजायऔरदोअिभयुÈ तगणजमानतपरहɇ ।उनके जमानतमुचलकेिनरः Ǒकयेजातेहै।उÛ हेइसमुकदमेमɅ समप[णनहȣंकरनाहै।" 10. A perusal of aforesaid para 12 would reveal that trial court in criminal case has given the finding that the prosecution from its evidence has utterly failed to prove the charge against the accused. However,further reference has been made to the term benefit of doubt in the said paragraph, which according to counsel for the petitioner is not correct. In case utter failure of proving the charge, the said term benefit of doubt is normally not used and more particularly in this case when the prosecutrix – Smt. Dariya and Smt. Tara, companion of the prosecutrix , both have denied the commission of rape, therefore, earlier part of the order of utterly failed is correct and the benefit of doubt appears to have been used by inadvertence. Counsel further submits that in criminal case, charge is to be proved beyond reasonable doubt and in case same is not proved beyond reasonable doubt then the term benefit of doubt is used and not in case where the prosecution utterly failed to prove charge, which will come in the category of honourable acquittal. In view of aforesaid acquittal, it would be unjust and unfair rather oppressive to allow the findings recorded by the disciplinary authority in the departmental proceedings. Thus, the submission of counsel for the petitioner has substance. The judgment of the Supreme Court reported in (2006) 5 SCC 446 is applicable. 11. Even if the case is examined on the basis of record of the enquiry then also the prosecutrix – Smt. Dariya and her companion (Mausi) – Smt. Tara were examined by the enquiry officer and both of them have denied commission of rape in enquiry. Thereafter, there appears to be no justification for the enquiry officer for not giving finding on the main charge of rape and further prosecuting the matter for the consequential charge relating to defaming the police department because when the main charge is not proved then the consequential charge will fall on the ground. The enquiry officer gave no finding on the issue whether rape was committed or not, but in view of the statements of Dariya & Tara, the finding of disciplinary authority holding the charge proved is perverse and the same is liable to be set aside. Thus, from the evidence on record of departmental enquiry, the charge of rape is not proved, therefore, impugned order of dismissal passed by the disciplinary authority as well as order passed by the appellate authority are liable to be set aside. 12. Counsel for the petitioner cited another judgment on the issue of notice of disagreement, which has been held to be mandatory in view of principle of natural justice reported in (1998) 7 SCC 84 – Punjab National Bank V/s Kunj Behari Misra. The relevant para 19 of the said judgment is as follows:- “19. The result of the aforesaid discussion would be that the principles of natural justice have to be read into Regulation 7(2). As a result thereof, whenever the disciplinary authority disagrees with the enquiry authority on any article of charge, then before it records its own findings on such charge, it must record its tentative reasons for such disagreement and given to the delinquent officer an aopportunity to represent before it records its findings. The report of the enquiry officer containing its findings will have to be conveyed and the delinquent officer will have an opportunity to persuade the disciplinary authority to accept the favourable conclusion of the enquiry officer. The principles of natural justice, as we have already observed, require the authority which has to take a final decision and can impose a penalty, to give an opportunity to the officer charged of misconduct to file a representation before the disciplinary authority records its findings on the charges framed against the officer.” (emphasis supplied) 13. Counsel for the petitioner referred Constitutional Bench judgment reported in (1993) 4 SCC 727 – Managing Director, ECIL & Ors. V/s B. Karunakar & Ors. wherein it has been held that denial of a right of copy of the enquiry report amounts to denial of reasonable opportunity and violation of Article 14 & 21 of the Constitution of India and principle of natural justice. In the said judgment, the case of Ramjan Khan has been held to be prospective i.e. the aforesaid ratio will be applicable from 20.11.1990. The relevant para 61 of the same is as follows:- “61. It is now settled law that the proceedings must be must, fair and reasonable and negation thereof offends Articles 14 and 21. It is well-settled law that the principles of natural justice are integral part of Article 14. No decision prejudicial to a party should be taken without affording an opportunity or supplying the material which is the basis for the decision. The enquiry report constitutes fresh material which has great persuasive force or effect on the mind of the disciplinary authority. The supply of the report along with the final order is like a post-mortem certificate with putrefying odour. The failure to supply copy thereof to the delinquent would be unfair procedure offending not only Articles 14, 21 and 311(2) of the Constitution, but also, the principles of natural justice. The contention on behalf of the Government/management that the report is not evidence adduced during such inquiry envisaged under proviso to Article 311(2) is also devoid of substance. It is settled law that the Evidence Act has no application to the inquiry conducted during the disciplinary proceedings. The evidence adduced is not in strict conformity with the Indian Evidence Act, though the essential principles of fair play envisaged in the Evidence Act are applicable. What was meant by `evidence' in the proviso to Article 311(2) is the totality of the material collected during the inquiry including the report of the enquiry officer forming part of that material. Therefore, when reliance is sought to be placed by the disciplinary authority, on the report of the enquiry officer for proof of the charge or for imposition of the penalty, then it is incumbent that the copy thereof should be supplied before reaching any conclusion either on proof of the charge or the nature of the penalty to be imposed on the proved charge or on both.” (emphasis supplied) 14. In this case, the enquiry was completed on 13.12.1990, therefore, in view of judgment of Managing Director, ECIL & Ors. V/s B. Karunakar & Ors. (supra) crucial date has been fixed as 20.11.1990 for giving the copy of the enquiry report, the enquiry report was necessary to be given to the petitioner. In the aforesaid five Judges' judgment, the issue of prejudice has also been discussed. Since in this case main charge was not found proved, however remaining charge has been found proved, therefore, enquiry report was necessary to be given to the petitioner. Otherwise also, when the disciplinary authority has made up his mind to disagree with the report of the enquiry officer with regard to giving specific finding whether the rape is proved or not, then it was incumbent upon him to serve a notice of disagreement as held by the Supreme Court in case of Punjab National Bank & Ors. V/s Kunj Behari Misra (supra) wherein it has also been held that even if the rule is silent then also notice of disagreement is to be given and objection may be invited. 15. In view of above, the contention of the State Government of following provisions of Rule 16 (10) of the CCA Rules has no force and the same is rejected. The submissions of petitioner of violation of principles of natural justice in departmental enquiry are also liable to be accepted and the same are accepted. 16. Accordingly, the order dated 9.6.1993 and 16.3.1994 of the disciplinary authority as well as of appellate authority are quashed and set aside and the respondents are directed to reinstate the petitioner in service with all consequential benefits. 17. The writ petition stands allowed. (P.S. ASOPA) J. Ummed 16. The petitioner has been acquitted by the criminal court of the charge of rape and further in departmental enquiry also, no finding has been given by enquiry officer with regard to commission of rape or not. The disciplinary authority has also not recorded specific finding of committing rape, but he still held that the aforesaid charge is serious and is a gross misconduct. In view of statements of Dariya (prosecutrix) and Tara (companion Mausi) of departmental enquiry wherein the charge of rape levelled against the petitioner has been denied, the same could not be taken as proved, thus, the remaining part of the charge of defamation of the police force is consequence of the main charge. When the main charge is not proved then the consequence will not follow. The case of the petitioner is liable to be accepted on two other grounds; (1) non supply of enquiry report and (2) not giving the notice of disagreement, which have been held to be violative of principle of natural justice in other two judgments reported in (1998) 7 SCC 84 and (1993) 4 SCC 727. From that angle also, since the matter is of the year 1985 and in order to quietus the dispute, remand for the second time of the matter will not serve any useful purpose after lapse of 21 years.