{s^:s s~^ ;: •-:s "^"^•^' .---''-.;;..-' SSSSx''~;?:'- w&^'^\:.^ Sijge'sii^fr* ^:', KfSKSV'^-'^:''^'~. ss&s^ VSs^S •:'c\ ^•^^- ^' /• '^:^^ '^l'fg^'^ .EEBORE »3'HE HAIifHTA -.:" G< SIMIMIgESasiVE IBDNAD.'tTSBN-iW Be'Cween Kar-t;l]<.;'Ram.iNag,,-,,ag®d..afe(i*^3S.,.yeaE^:/::(^sta33ie.®p;.''7:00(:i.i? :S?^;;;^r3.^E)£l3rfcaE^E^;;'^30^''S^fa^ S^a^'E^^'^cesl^ies^^QS^^SS^^vSaS.ts^if'b^.^^.K^ aiBtz'±et;:-'Bas'fca&;'CHB)»i^;L;.,;•'-/ '". •-•''••^:.^-ly','-.'- '':,:;);/'":.''.;:^:1 ^^:.--"! ! '/ ,: ' .^ :.1 . •;' • •- .•AE IG ^'\: ,: ,.' .: •:ly.. .I.K'| it.i^- '?...'•T ESffi iAad^ ^S'ba'ee. o£:fliaahya^^aafiafi,''t^rfNgft^:'t3^: :Secira-t;ajt'^;;^i||y :(PoItce);,?!:3eE>ar-tmeR't!^:A; .. feo •ttte Qoveznmen'fe-Home. •EBo@al,"(MP) ,''11'.;, ;;, ;?:11:' Qegn-fcy 3aaspe9'fcor.(3aaer;al 6iE;^>QlJLOe^ :;-.'l 'V^^ ;i? ^.'^^'^••' \^:^^^^''\^,^.^^^l^<:-i^ •''.,• \r\ : •^•"'.fS-^^i^i •^5peea;a3.;•Aiane3. Sorc'es,. JBhiIai,Sis;feFi<:st,.,33arg^.sj(g| ^3.,^:1». ^W^e;:C^mrHan^gQt^'^3Q<fe^.'^^^ ,£,^M^-^-^^r<^^'aTaga^l^r'',^s'trlet,,Bas .•»:-:,.•"» /'S3!BSSSiS-:f3E~.KE^SSm^W:t •:'^- ••1.-^ <fiBS?CNEi%SS?a::®;@81 "—~"''-—iji"ii"',"<;''^iSaiS :-:^MK^!!W'!M aSS ": - .;^I::'l:::3s}la-;l31yS%;:B'SaB ^<^^rs-volf.t]-ie.,a»gT;lcan'e^^^afB-e.e'®ilNE ^ds^sse^s. sai! :: ^s^ tiiaa im.uBuwn^KS HIGH COURT OF CHHATTISGARH, BILASPUR SINGLE BENCH : HON'BLE SHRI MANINDRA MOHAN SHRIVASTAVA,J. Writ^etitionJS) No. 1581/2605 PETITIONER RESPONDENTS Kartik Ram Nag Versus State of Madhya Pradesh and others ORDER POSTL ON__'^JULY,_ 2010 Sd/- Manindra Mohan Shrivastava Judge n HIGH COURT OF CHHATTISGARH : BILASPUR SINGLEBENCH : HON'BLE SHRUIANINDRA MOHAN SHRIVASTAVA^J, PETITIONER RESPONDENTS Wnt Petition IS) No. 1081/2005 Kartik Ram Nag Versus State of Madhya Pradesh and others Appearance: Shri Prafull Bharat, counsel for the petitioner. Shri Bhaskar Payasi, Panel Lawyer for the State/respondents. O R D ER (Passed on (>~.07.2010) 1. By this petition, the petitioner seeks to assail legality and validity of order dated 10.12.1994 (Annexure A-9) passed by 3rd respondent as Disciplinaiy Authority, by which a major penalty of dismissal from service has been imposed on the petitioner. Petitioner also calls in question fhe correctness of order dated 21.2.1995 (Annexure A-11) passed in appeal by the 2nd respondent, the Appellate Authority. 2. Factual matrix of the case necessary for adjudication of controversy involved in the petition are that the petitioner while working as Constable (No.700) in 30U1 Battalion, Special Armed Forces (SAF), Jagdalpur was placed under suspension vide order dated 23.10.1993 (Annexure A-l) on serious allegations that in the night intervening 21st and 22nd October, 1993, petitioner along with Constable- Fhotku Ram and Head Constable- Narendra Kumar went out of the Line duty, consumed liquor and thereafter petitioner and Fhotku Ram murdered Head Constable- Narendra Kumar. A criminal case under Crime -2- No.201/93 alleging commission of offence under Section 302/34 ofthe IPC was also registered against the petitioner. 3. Eventually, a charge sheet dated 6.12.1993 (Annexure A-2) was issued initiating a departmental enquiry on two charges mentioned in the charge sheet. The two charges leveled, are as below:- "1. R'li* 21.10.1993 ^ ^faT 'clTftsR 8:30 cp^ ^TT ;FT spt.; ^r argTrf^r 'c^ en^ 'uTR^ rii'i'h ^m fiRn sp^ Vi i\\> ~iw ter sr-^ fm ^TfRft •^ f^mra v '?Rl6f 'EPT ^FT 'cITT'TT ^T ff0 3TR8W ''^? 'EgTTR ^ ^nsr ?R-f?[qK ^; ^FI ^TH ^r TIT? ^TT i 2. d4<i)cM 'c^q 'cR T^R Sf^llRl^ ttl 'cpT ct,4-c|l^ ?I^ |^, a^ll'H-lsl^; ''T ^rl' 'glt ?TR 3T3?TT?Hft;raT ^T trR'Era ^T i^ Tr.ff. ^ii-i-ic^^i ^ER? siraw ^(TT 'EPT dwl'tj-1 'cFT.TT |" 4. Petitioner submitted his reply dated 13.12.1993 (Annexure A-3). Enquiry Officer was appointed, who conducted the departmental enquiry, recorded the statements of witnesses and then submitted enquiry report (Annexure A-5), wherein it was concluded that charge No.l, in so far as leavihg the S.A.F. Camp without permission and consuming liquor is concerned, is proved. Charge No.2 wa-s also found fully proved. In so far as allegation of committing raurder is concerned, it was recorded that the petitioner had no role to play in committing murder and the said criminal act was committed by Photku Ram. A copy of the said enquiry report was supplied to the petitioner vide covering memo dated 7.11.1994 (Annexure A-5), requiring the petitioner to submit his defence. Petitioner submitted his written statement of defence (Annexure A-6). The Disciplinary Authority thereafter issued a show-cause notice on 1.12.1994 proposing dismissal from service. Petitioner replied to the same vide his reply -3- dated 9.12.1994 (Annexure A-8). Finally the Disciplinary Authority vide impugned order dated 10.12.1994 (Annexure A-9) imposed a major )'ienalty of dismissal from service on the petitioner. Petitioner preferred an appeal (Annexure A-10) before the Appellate Authority, which too was dismissed by the Appellate Authority vide impugned order dated 21.2.1995 (AnnexureA-11). 5. l.,earned counsel for the petitioner would submit that the irapugned order of penalty is unsustainable in law, inasmuch as on the same set of facts, circumstances and charges, a crirainal case alleging i.'ommission of offence under Section 302/34 of the IPC against the petitioner and Photku Ram was registered and the petitioner upon lieing subjected to trial by a criminal Court of competent jurisdiction, was acquitted vide judgment dated 30th November, 1994 passed by Ist Additional Sessions Judge, Jagdalpur, Bastar in S.T. No. 8/94. It is Kubmitted that upon clean acquittal of the criminal charges of committing murder of deceased -Narendra, respondents ought to have rxonerated the petitioner from the charges leveled in the departmental •i.ction. Learned counsel for the petitioner would further submit that iince a criminal Court of competent jurisdiction considered the cvidence on record while enquiring into the same allegations and recorded finding that the allegations are not proved against the petitioner, the Disciplinaiy Authority could not have come to a contrary f.onclusion of guilt on the same set of charges and punish the petltioner. To buttress his submissions, learned counsel for the petitioner ]]laced reliance on the decision of the Supreme Court in the cases of -4- Capt. M. Paul Anthonv Vs. Bharat Gold Mines Ltd. as another 1 &, G;M. Tank Vs. State of Gujarat Ss Ors.2. 6. It is further argued by learned counsel for the petitioner that under any fircumstances, in the present case, M.P./C.G. Police Regulations beinj applicable, in view of provision contained in Regulation 241 of the ]:>olice Regulations, upon acquittal from criminal charges, the departmental enquiry proceedings were liable to be dropped and petitioner was entitled to be reinstated. It is submitted that as Regulation 241 is squarely attracted, there is no room for further ciiscretion and therefore the action of the Disciplinary Authority in proceeding to impose punishment by holding charges proved, relying i.1pon inquiry report, is violative of statutory mandate of Regulation 241 of the Police Regulations, which are statutoiy rules. 7. I^earned counsel for the petitioner also contended that the exercise Lindertaken by the Disciplinary Authority in splitting charge No. 1 into ilifferent parts though based on same facts and circumstances, cxcluding the allegation of murder and then holding the petitioner guilty of leaving S.A.F. Camp without permission and consuming liquor, was highly unauthorized, illegal and not permissible. In his Hubmission, this was merely an attempt on the part of the Disciplinary Authority to wriggle out of the findings of acquittal by criminal Court. 8. It is next urged that the conclusion of guilt drawn by the Enquiry Officer in his report suffers from perversity and irrationality, inasmuch ii.s two witnesses namely Tangaru Ram & Gagru Ram did not say iinything against the petitioner in criminal proceedings and in the ' (1999) 3 SCC 679 2 (2006) 5 SCC 446 /y- ,^-^ ^•^ ^ <c^ i -5- ••\ k^. •<-~ departmental enquiry also, they did not even state the date of incident in their testimony, yet Enquiry Officer held the petitioner guilty of charges on such statement which was not worth credence. It is also cirgued that the Disciplinary Authority did not apply its mind to the enquiry report and passed the impugned order, which cannot be said 1.0 be a reasoned order. It is next subraitted that the representation of Ihe petitioner in response to second show-cause notice was also not taken into consideration while passing the final order of punishment. 'I'he requirement of recording proper reasons was, therefore, not complied with and on that count the order of the Disciplinary Authority is vitiated. In support of this submission, reliance has been placed on the ratio of the decision of the Supreme Court in the case of Chairinan, Uisciplinary Authority, Rani Lakshmi Bai Kshetriya Gramin Bank Vs. Jaedish Sharan Varshney & Ors.3 SB&Vallikumari Vs. Andhra Eclucation Society 8s Ors.4, 9. Referring to the provision contained in Regulation 226 of the Police Regulations, it is submitted that the Disciplinary Authority exceeded his authority in imposing extreme punishment of dismissal from service, as the rule contemplates that such extreme penalty should be imposed as a last resort when there is no possibility of improvement. It is submitted that the rule does not envisage imposition of extreme penalty of dismissal at the first instance, but, in the present case, the extreme penalty of dismissal has been imposed. 10. Learned counsel for the petitioner lastly submitted that the Appellate Authority did not consider various grounds raised in the appeal and 3 (2009) 4 SCC 240 4 (2010) 2 SCC497 \ f--. v-^ 1- '*. -. ''-. "•';•< ^ ~*~ '": .•; /' ..^' • ^ ~ ^.^f^ -6- l.he appeal has been mechanically dismissed without proper consideration. 11. Per contra, learned counsel for the respondents would submit that the departmental enquiiy was held on serious allegation of misconduct against the petitioner and there is no bar under the law to hold departmental enquiiy merely on the ground that the same has also resulted in initiation of criminal proceedings. Learned counsel for the respondents argued that acquittal from criminal charges does not result in automatic exoneration from allegation of misconduct leveled in a departmental action and it is permissible under the law to impose penalty in disciplinary proceedings, even if the delinquent employee has been acquitted from criminal charges. It is further argued that in the present case, the petitioner was charged of a criminal act of committing murder and was subjected to trial in criminal proceedings. Though, initially, in the departmental enquiry, the allegation relating to jnurder of Narendra was included, in view of judgment of acquittal, t.hat part was taken-out of the purview of the departmental proceedings, but in so far as allegation of leaving the S.A.F Camp without perraission and thereafter consuraing liquor is concerned, the cnquiry was continued, which culminated in imposition of penalty iipon proof of that part of the allegation contained in Charge No.l. I^earned counsel for the State submitted that it was within the authority of the Disciplinaiy Authority to continue to hold enquiry on those sets of allegations which do not form part of criminal charge of murder. 12. Learned counsel for the respondents further contended that the enquiry was conducted by issuing a charge sheet on definite allegation. ,;,"""•••h. ..£--<&-;„.,-•"? v 'i '•*•.."->. T ?, ?. "'^ /. ^' '^. ''• K" ^ ',- A.^- •1 yi' -7- The principles of natural justice were fully complied with and opportunity was granted to the petitioner to cross-examine prosecution witnesses, as also lead defence witnesses. Copy of enquiry report was supplied and show-cause notice was given to the petitioner to offer his explanation and comments on the finding of the Enquiry Officer. It is argued that the Enquiry Officer took into consideration the evidence on record of the enquiry and reached to the conclusion of guilt relying upon the testimony of prosecution witnesses and it is not a case of no evidence. It is further submitted that there is no perversity or irrationality in the finding of guilt recorded, as in a case of doraestic enquiry the standard and degree of proof is different from that in a criminal case. Learned counsel for the respondents submits that the degree of proof required in departmental action is preponderance of probability and therefore the finding recorded by the Enquiry Officer cannot be said to be in any manner perverse or irrational. Learned counsel for the respondents replying the submission regarding alleged non-recording of reasons by Disciplinary Authority, referred to the detailed findings recorded by the Disciplinary Authority to submit that a perusal of the order of the Disciplinary Authority would show that Disciplinaiy Authority considered in great detail relevant aspect of the matter, evidence on record, defence of the petitioner and then only the order was passed. Reply to argument that there was no proper consideration in appeal, it has been stated that several grounds which are now being raised before this Court, particularly regarding violation of Regulations 226 8s 241, were not raised before the Appellate Authority. It is contended that the Appellate Authority while confirming the order of the Disciplinary ..-''-'"''.*, "^f"^^ r!^'<i ^ ^. 2. '.:' />' Authority is not required to record detailed reasons and the only requirement is that brief reasons need to be recorded, which must reOect application of mind by the Appellate Authority. Learned counsel for the respondents submits that in the present case Regulation 241 is not attracted. It is also argued that as the allegation were grave, it was permissible under the law to impose penalty of dismissal from service and there is no violation of spirit of Regulation 226. 13. Learned counsel for the respondents relies upon the decision of the Supreme Court in the cases of Kusheshwar Dubev Vs. M/s. Bharat Cokine Coal Ltd. 8s Ors. 5 , State of Raiasthan Vs. B.K. Meena & Ors.6, State of Karnataka and another Vs. T. Venkataramanappa7 85 Union of India & another Vs. Bihari Lal Sidhana8. 14. ln order to appreciate the submissions based on provision contained in Regulation 241 of the Police Regulations, it is apt to reproduce the aforesaid provision: "241. Cases of acquittal- When a police officer has been tried and acquitted by a crirainal Court, he must as a rule be reinstated. He may not be punished departmentally when the offence for which he was tried constitutes the sole ground of punishment. If, however the acquittal, whether in the court of original jurisdiction or of appeal, was based on technical grounds, or if the facts established at the trial show that his retention in Government service is undesirable, the Superintendent may take departmental cognizance of his conduct, after obtaining the sanction of the Inspector-Genersd. 5(1988) 4SCC319 6 (1996)63cc 417 7 (1996)63cc 455 8 (1997) 4 SCC 385 A perusal of the aforesaid provision contained in Police Regulation would show that even in cases of acquittal, if the facts established at the trial show that retention of the employee in Government service is undesirable, the Superintendent of police raay take the departmental cognizance of his conduct, after obtaining the sanction of the Inspector-General. What regulation 241 lays down on is that an employee may not be punished departmentally when the offence for which he was tried constitutes the sole ground of punishment. The first part of the aforesaid provision that when a police officer has been tried and acquitted by a criminal Court, he must as a rule be reinstated, cannot be read in isolation divorced from the other parts of the regulation. The submission of learned counsel that acquittal by a criminal Court raust invariably and under all circumstances result in reinstatement, if accepted, would render rest of the provisions under regulation 241 otiose and ineaningless. Therefore, such an interpretation of regulation 241 would be against all canons of interpretation based on settled principles. The rule of general application embodied in regulation 241 is subject to exceptions embodied in the rule itself. Therefore applying the principle of purposive construction, in the opinion of this Court, Regulation 241 cannot be interpreted to mean that under all circumstances, acquittal would result in restatement even if in appropriate cases, it is found that retention of the Govt. servant is undesirable. The challenge to the departmental action and order of penalty based on application of Regulation 241, in the present case, cannot be accepted because inhibition against departmental action would be applicable when the offence for which Govt. employee was tried constitutes the sole ground lr t-"-^t^^^-t~iiiicnt. 1 -10- ^/ 15. In the present case, if the charge leveled against the petitioner is carefully read, it consists of three limbs. The first part of allegation against the petitioner is that he left the Camp without due permission. The second part is that he consumed liquor after having come out without permission and the third part is an allegation of comraitting niurder. The criminal charge solely related to allegation of murder and the criminal Court was not called upon to inquire into allegation of leaving the Camp without sanction or consumption of liquor. In the present case while the departmental enquiry was going on, petitioner was acquitted of the criminal charge of coniinitting murder. The Disciplinary Authority duly took into consideration this aspect and in so far as allegation of commission of murder is concerned, the same was taken out of the purview of departmental enquiry. The Disciplinary Authority considered the material on record with regard to only two parts of the allegations namely- leaving the Camp without permission and secondly consuming liquor. Therefore, it cannot be said that the offence constituted the sole ground of punishment. 16. It needs to be noted that the entire submissions based on applicability or otherwise of regulation 241 has been made without any specific grounds raised in this behalf based on any averments of facts. One of the grounds raised in the petition is as follow:- Grounds x x x "(G) That the principle that no enquiry can be held in respect of a charge which was the subject matter of prosecution is applicable also when employee is discharged instead of being acquitted. But the disciplinaiy authority is conduct the inquiry in same -11 - offence and passed order is bad in law and unjustified." A perusal of the aforesaid ground taken by the petitioner shows that the petitioner raised a ground that no enquiry can be held where acquittal has taken place, would also extend and apply in case of discharge. It has also been pleaded that Disciplinary Authority conducted the enquiry in respect of the same offence. No specific ground with reference to Regulation 241 has been raised. During the course of argument, learned counsel for the petitioner submitted that there is no material on record tp show that while proceedings with fhe enquiry, after the acquittal, the sanction of Inspector General was obtained. As stated earlier, there are no such factual foundation in the pleading to this effect, therefore, there was no occasion for the respondent to state on affidavit this aspect. A copy of the enquiiy report was supplied to the petitioner along with covering raemo dated 7.11.1994 (Annexure A-5) issued by the Commandant. Criminal Court passed the judgment of acquittal on 30th November, 1994. Thereafter, a show-cause notice was issued to the petitioner on 1.12.1994, placed on record as Annexure A-7. In reply to the said show-cause notice, though the petitioner stated that in view of acquittal, the departmental action is liable to be dropped, it was nowhere stated that the permission of Inspector General was not obtained before proceedings with the matter 17. In any case, as it has already been held by this Court that the offence alleged does not constitute the sole ground of punishment, in the present case, the oral argument that Regulation 241 operated as bar is to be rejected. Learned counsel for the petitioner sought to rely upon /'r^ -12- ^ order dated 24th July 2007 passed by this Court in M.C.C. (S) No. 34/2005 (Pahari Sharan Pandey Vs. The State ofM.P. and another}. In that case, it was found that the charge in criminal case as well as in departmental inquiry were one and the same, therefore, it was concluded that in view of provision contained in Regulation 241 of the Police Regulation, departmental action was unsustainable. The aforesaid decision is distinguishable on facts. One more submission of learned counsel for the petitioner in this regard needs to be dealt with. Learned counsel for the petitioner submitted that charge No.l constituted one single charge that the petitioner came out of the Camp without permission with other colleagues and consuraed liquor and, thereafter, committed murder of his colleague. Learned counsel for the petitioner submits that the allegation was of committing murder and therefore upon acquittal, the entire charge was liable to be dropped and it was not permissible for the Disciplinary Authority to split the charge and continue enquiiy and punish on one part of the allegation alleging leaving of Camp without permission and consuming liquor. I am not inclined to accept this submission. A bare perusal of the charges leveled against the petitioner would show that misconducts alleged at different stages were subject matter of enquiiy. As I have discussed earlier, the misconduct was on three aspects. Firstly- leaving the Camp without permission; secondly- consuming liquor and thirdly- committing murder. In view the judgment of criminal Court acquitting the petitioner from the charge of murder, it was permissible for the Disciplinary Authority to take out of purview of enquiry the aspect of murder and continuing enquiry with regard to allegation regarding leaving Camp and ^^"y' ^r^^ )h /• ^. -13- '-., ^ 72. consuming liquor. There is no such bar under the rules governing departmental enquiry. 18. The next submission of learned counsel for the petitioner, based on acquittal, de hors Regulation 241 applicability aspects, shall now be dealt with. Learned counsel for the petitioner relying upon decision of the Supreme Court in the cases of Capt. M. Paul Anthony (supra) SE G.M. Tank (supra), vehemently argued that if the allegadon in the criminal case and the departmental enquiry was looked into, they were one and the same. It is also submitted that the allegation arose out of the same incident and same series of facts and circumstances. It is also highlighted that the sarne set of witnesses were examined in criminal case as well as in departmental enquiiy. Therefore, it is urged, the departmental enquiry ought not to have been conducted further after acquittal by the criminal Court vide order dated 30th November, 1994. In order to appreciate the aforesaid submission, it is relevant to deal with the principles laid down by the Supreme Court in various decisions dealing with the aspect of permissibility of departinental action on the face of acquittal frora criminal charges. In the case of State ofRajasthan (supra), Supreme Court after considering its earlier decision dealing with the aspect of permissibility of disciplinary proceedings, simultaneously along with criminal proceedings propounded as under: "17....The approach and the objective in the criminal proceedings and the disciplinary proceedings is altogether distinct and different. In the disciplinary proceedings, the question is whether the respondent is guilty of such conduct as would merit his removal from service or a lesser punishment, as the case may be, whereas in the criminal ^.c-fy ^r^'\ ^fC T\ ^ /•' -14- ^. proceedings the question is whether the offences registered against him under the Prevention of Corruption Act (and the Indian Penal Code, if any) are established and, if established, what sentence should be imposed upon him. The standard of proof, the mode of enquiry and the rules governing the enquiry and trial in both the cases are entirely distinct and different. Staying of disciplinary proceedings pending criminal proceedings, to repeat, should not be a matter of course but a considered decision..." 19. Applying the aforesaid principle, while dealing with the situation of permissibility of departmental action in the case of acquittal from criminal charges in the case of State of Karnatka (supra), it was held as under: "3. The prosecution evidence in the criminal complaint may have fallen short of those standards but that does not mean that the State was in any way debarred from invoking Rule 28 of the Karnataka Civil Service Rules, which forbids a government servant to mariy a second time without the permission of the Government. But, here, the respondent being a Hindu, could never have been granted permission by the Government to ruarry a second time because of his personal law forbidding such marriage. It was thus beyond the ken of the Tribunal to have scuttled fhe departmental proceedings against the respondent on the footing that such question of bigamy should normally not be taken yp for decision in departmental enquiries, as the decisions of competent courts tending to be decisions in rem would stand at the highest