M 0 ^V" BEP©RE'EHE_HI©HeOBRT 0F CHI%TTI3SARK AT BIJASPBR. w.P. No. <A^-^ /2QQ3(S.B.) PETXTIGNEg s /aTolian Panna, aged aboat 47 years, g/o lothe Panria, r/o P ellce Mne, Secter-6, P.0. Bhilai, Bistt. Durg, G.S. vs -t,: Ui!l RESPOtfDENTS '.^'j£^-'^ ^^ ^ s 1. State of Cbha tti sgarli, tbrotsgb ; Seeretary, Home (Eol.i.ce) Depart- naeat» Msn'fcrelaya, B.K.S. Bhawan,! Raipar, ai.stt. Kaipar, C.G. | 2 ,/B.treetor Seaera.1. of PoUce, PoUce Hea<3 QaaFter, Baipur, P.0. & Blstt. RalpBr, G.<3. 3. Inspeetor Geaeral of Pollce, Baiplr,Zone, Saifur, G.G. >^^> 4. SuperlnteBdent of Pelice, Durg, C.G. y^.ay^^&^ l"1fi^!9yu'"^ ^^•Q&^^ IL' ^ESU'IQlL.BHIlE&^a&raCi^; _ 226/227, fi?" THE_eGNSTITOTIOH;OF MStX&i' POR ISSD&BCEG? & WRIT OP.CE^'JOSARI, HANQftHUS AHDi&Ny Q'SiER ,WRIT/BIREGTIOH/ORD . ' ftF-A, HIGHCOURT OF CHHATTISGARH : BILASPUR PETITIONER RESPONDENTS WRIT PETITION N0.425 OF 2003 Johan Panna Versus State of Chhattisgarh & Others -K Post for pronouncement ofthe order on _/2_"dayofApril,2010 Sd/- SatisfaK; Agiuhotri Judge ,1.1.1 '^s s^W:^:' HIGH CQURT OF CHHATTISGARH : BILASPUR PETITIQNER RESPONDENTS WRIT PETITION N0.425 OF 2003 Johan Panna Versus State of Chhattisgarh & Others - r (Writ Petition underArticle 226/227 ofthe Constitution of India) Single Bench : Hon'ble Shri Satish K. Agnihotri, J. Present:- Shri Uttam Pandey, counsel for the petitioner. Shri V.V.S. Murthy, Dy. Adv. General forthe State. ORDER (Delivered on this 12. dav ofApril, 2010) 1. Challenge in this petition is to the order dated 6-9-2001 (Annexure - P/1) passed by the respondent No.4 Superintendent of Police, Durg, whereby on the basis ofenquiry, punishment of compulsory retirement was imposed on the petitioner, order dated 27-11-2001 (Annexure - P/2) passed by the respondent No.3 Inspector General of Police, Raipur Range, Raipur, by which the appeal preferred by the petitioner against the order dated 6-9-2001 was dismissed, order dated 23^-2002 (Annexure - P/3) passed by the respondent No.2 Director General of Police whereby the mercy appeal was dismissed and the order dated 11-12-2002 (Annexure - P/4) passed by the respondent No.2 Director General of Police whereby and whereunder the second mercy appeal was dismissed. The indisputable facts, in nutshell, as projected by the petitioner, are that when the petitioner was posted as Head Constable in // !-i •a rt*hh »Aridi*n* ttAMK( ft&..Arti*•A»^^frfcn*^Afc*i-+* iln>*dAA^A^,^k^ ^ (:' Police Chowki Dadhi underthe Police Station Nawagarh, District Durg, for his act of consuming liquor in the night of 5-11-1999 and trespassing the house of one Loknath Sahu, resident of Dadhi and thereafter trying to outrage the modesty of the daughter of Loknath namely; Sita Bai.enquiry was initiated vide Annexure - P/5. A criminal case was ateo registered in the Court of Judicial Magistrate First Class, Bemetara, Durg, being criminal case No.230/99. The Judicial Magistrate First Class after having examined Sita Bai and other relevant witnesses came to the conclusion that the prosecution has failed to prove charges under Sections 456, 323, 352 and 354 of the Indian Penal Code and accordingly the petitioner was acquitted from all criminal charges. In the departmental enquiry, all the charges were found proved against the petitioner, agreeing with the enquiry report the above stated punishment of compulsory retirement was passed by the respondent No.4 Superintendent of Police, Durg, by order dated 6-9-2001 (Annexure - P/1). Against the order dated 6-9-2001, the petitioner preferredan appeal, which was dismissed byorder dated 27-11-2001 (Annexure - P/2). Thereagainst, the petitioner preferred mercy appeal before the Director General of Police. The same was dismissed by order dated 23-4-2002 (Annexure - P/3). Again the petitioner filed the second mercy appeal, which was also dismissed by order dated 11-12-2002 (Annexure - P/4). Hence, this petition. ^3^Ms^^^^^^"^E^^^3isss?'s;:l;;;fc~=! ^1^^4^.^^,^ .^•;i.L^J^Ti'>y^</;"-''7''~^^^':t"L •' "". ^.•.~r" ".^.;—"-: . ' .- 1-^: nimrinnmmfa ifc. i,r'"-' . -. £' 6. Shri Pandey, learned counsel appearing fpr the petitioner submits that the finding of the enquiry officer is perverse, as the main witness namely; Sita Bai whose modesty was allegedly outrages by the petitionerwas examined before the Criminal Court as PW-1 and in her deposition datesl 8-8-2001, she has cleariy stated that the petitioner has never tried to outrage her modesty and he has not done anything with her. The other relevant witnesses have also not supported the version of the prosecution and they have turned hostile. The criminal Court examined Sita Bai (PW-1), Loknath (PW-2), Kamla Bai (PW-3), Pramila Bai (PW-4), Poshan (PW-5), Triveni' Bai (PW-6), S.K. Sharma (PW-7), Laxmi Prasad (PW-8), Vijay (PW-9) and Rajendra Tiwari (PW-10). On examination, the Court found that the criminal charges registered against the petitioner were not proved and accordingly he was acquitted in the criminal trial. Learned counsel submits that if the facts are identical, the witnesses are same and the petitioner has been acquitted by the criminal Court, the finding in the departmental enquiry, which is contrary to the finding recorded by the criminal Court, on the same set of charges is vitiated and perverse. On the other hand, learned counsel for the State submits that against the punishment order, the petitioner preferred appeal, mercy appeal and second mercy appeal before the authorities and the same have been dismissed after considering all the aspects of the matter in its letter and spirit. Even after acquittal from the criminal Court, the department is competent to take its //'x ^^sas^S^S^ssis^t^tavidi^^&'^ESS^s^syv'sSsSiSS Hi ; ;p -~;^ \'s<-1' 941 Aq psuiLuexs }ou SBM ai) 'jeAemoq 'uoiiipuoo peieoixoiui ui SBM jeuo!i!ied si)} }e\\} puno^ sei| yodej siy ui jopoa •6 •uiejsqjeuoiiiied eqt 1SUIB6B pSAOjd IQU ejeM ssBjeqo eL|i leqi puno^ Auftmos uo ynoQ leuiiuuosyi 'os|e ynoo leuiuiuo 8i)i ejoieq sesseuiiM 941 ejSM oqM peuiuuexs SJBM |e~] uepe|/\| eiqeisuoo pe9|-| pue pesejd AILIS eiqeisuoo pB3|-| 'eiiaued 'n» 'ueMii ejpuefey 'L|IEU>|O~| 'ueqsod '^efiA 'ieg e|iue» 'ieg IUSAUI :A|SUJBU sesssu}i/v\ jeqto si)i •sesseuii.M jo isi| sqi 0104 psisisp seM eLueu jsq 'ejo^sjSLit '9j9L)M3iuos episino suo6 peq SLJS ieqi peyodsj SBM }! se 'ieg eiis 10 UOIIBUILUBXS uo isisui iou p!p jeoyo Ajinbus sqi •leg G}!S Aq epeai luieiduioo SL)} uo psseq SJB ss6jey3 ;o suo!)e6e||e SMI qBnoyi jeov^o' ^inbus eqi ejoieq psuiaiexe Aieiejeqiiep iou sem ieg BI!S iei)i sjeedde }\ • |.'ON'S te sem leg e)\Q lueuiBidLudo 91)1 uisjeifm psxeuue SBM sseuiiMp }si\ B (g/d - sjnxsuuy) OOOZ -Z-I.Z psiep leeqs eBjeiio psyipoiu sqi u| -Ajinbua leiuaujyedep eijl ui seBjeiio 10 }EL|} 0} leoiiuapi ejeM eseo |BU!UUUO eiji ui psj9is|6ej seoueyo paffiLuiuoo BuiAeq jo s36jeL|3 341 •e •ajo^aq sjnoq ^[.-£1.jonbif peuinsuoo eABt^ li|6iiu eq IBLJI eiqissod SBM )\ 'jaAeMOL) 'jsuoiiftsd eqi ^o Apoq eq} ui puno^ semuoiiegixoiu! ou yei^ uoisn|ouoo eqi 0} SLUBO sjnoq euo poued e jsye 'jeuoitiied SL|I peuiuuexs sei) oqM 'peuiLuexs louosie sem jopoa ei|i -psuiujexe iou SE eqs inq 'peiueu q6noL|i 'ieg ev.s sssuijm U!BUJ 8i)i 'Ajinbue iBiueLUpedep sqi u| •z •jei|ej Aue 0} psiwus iou si jsuo^ied eq) 'snyi •jeuoiijtad eqi io lueuueieisuisj 01 pje6ej ^IM uojsioep luepuedepui .Nlfi d»»tii! •3S"sisefrva-^isw^-mwt (\^) enquiry pfficer. Despite that the enquiry officerheld that the petitioner was intoxicated when he forcefully ehtered into the house of Loknath and misbehaved with his family members. The witnesses were same before thecriminal Court as well as before the enquiry officerin the departmental proceedings. ^ 10. The Supreme Court inCorporation of the City of Nagpur, Civil Lines, Nagpur and Another v. Ramchandra and Others , observed as under: "6. The other question that remains is if the respondents are acquitted in the criminal case whether or not the departmental inquiry pending against the respondents would have to continue. This is a matter which is to be decided by the department after considering the nature of the findings given by the criminal court. Normally where theaccused is acquitted honourably and completely exonerated of the charges it would not be expedient to continue a departmental inquiry on the very same charges or grounds or evidence, but the fact remains, however, that merely because the accused is acquitted, the power of the authority concemed to continue the departmental inquiry is not taken away nor is its direction in any way fettered. However, as quite some time has elapsed since the departmental inquiry had started the authority concerned will take into cansideration this factor in coming to the conclusion ifit is really worthwhileto continue the departmental inquiry in the event ofthe acquittal of the respondents. If, however, the authority feels that there is sufficient evidence and good grounds to proceed with the inquiry, it can certainly do so. In casethe respondents are acquitted, we direct thatthe order of suspension shall he revoked and the respondents willbe reinstated and allowed - full salary thereafter even though the authority chooses to proceed with the inquiry. Mr Sanghi states that if it is . decided to continue the inquiry, as only argumehts have to be heard and orders to be passed, he will 1 (1981)28cc 714 1i,i:^[LLI.i3ilJL.itti!i /^•% Vv^ see that the inquiry is concluded within two months from the date of the decision of the criminal court. If the respondents are convicted, then the legal consequences uhder the rules will automatically follow." 11. ln Capt. hfl. Paul Anthony v. Bharat Gold Mines Ltd. and Another^, the Supreme Court observed as under: "7. /(was, at this stege, that the appellant approached the High Court through a writ petition under Article 226 of the Constitution challenging the validity of the order of dismissal on various grounds, including that the departmental proceedings based on the same set offacts on which the criminal case was launched against him, ought to have been stayed awaiting the result of the criminal case. It was a/so pointed out that s;nce the appellant had already been acquitted and the prosecution case against the appellant based on the "raid and recovery" whichalso constituted the basis of the departmental proceedings, had not been found to be true, he was entifled to be reinstated in service." 12. The SupremeCourtin Nar Singh Pal v. Union of India and Others , observed as under: "12. The fact that the appellant was involvedin a criminal case is not disputed by the appellant. What is contended by him is that hewas ultimately acquitted by the Court of Chief Judicial Magistrate, Agra and, therefore, involvement df the appellant in a criminal case could not have been made the Jbas/s for terminating his services. Since the appellant was acquitted, and it was a clean acquittal, the stigma attached to him of having been prosecuted in a criminal case should have been treated to have disappeared and no argument can be allowed to be raised forjustifying the order of dismissal on the ground of the appellant's involvement in a critninal case." 2 (1999) 3 SCC 679 3(2000) 3SCC 588 .^>~ -'S& PitliipH;,siH?SsB^3-! ^^s^ss:^^~s /: -. >^: 7 \<y 13. The Supreme Court in Ajit Kumar Nag v. General Manager (PJ), Indian Oil Corpn. Ltd., Haldia and Others , observed as under: "11. As far as acquittal of the appellant by a criminal court is concerned, in our opinion, the said order does not preclude the Corporation from taking an action if it is otherwise permissible. In our judgment, the law is fairly well settled. Acquittal by a criminal court would not debar an employer from exercising power in accordancewith the Rules and Regulations in force. The two proceedings, criminal and departmental, are entirely differeht. They operate ,in different f/e/cfs and have different obj'ectives. Whereas the object of criminal trial is to inflict appropriate punishment on the offender, the purpose of enquiry proceedings is to deal wifh the delinquent departmentally and to impose penalty in accordance with the service rules. In a criminal trial, incriminating statement made by the accused in certain circumstances or before certain officers is totally inadmissible in evidence. Such strict rufes of evidence and procedure would not apply to departmental pmceedings. The degree ofproof which is necessary to order a conviction is different from the degree of proofnecessary to record the commission of delinquency. The rule relating to appreciation of evidence in the two proceedings is also notsimilar. In criminal law, burden of proof is on the prosecution and unless the prosecution is able to prove the guilt of the accused "beyond reasonable doubt", he cannot be convicted by a court of law. In a departmental enquiry, on the other hand, penalty can be imposed on the delinquent officer on a finding recorded on the basis of "preponderance of pmbability". Acquittal of the appellant by a Judicial Magistrate, therefore, does not ipso facto absolve him from the liability under the disciplinary Jurisdiction of the Corporation. We are, therefore, unableto uphold the contention of the appellant that since he was acquitted by a criminal court, the impugned order 4 (2005) 7 SCC 764 li'l'lii. iSSSSWSS. ,^.._^.^,^.^^..,^ ^'.^.r-:'s svf '»~=v' dismissing him from service deserves to be quashed and set aside." 14. The Supreme Court in G.M. Tank v. State of Gujarat and Others , observed as under: B< "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 respondent failed to prove the charges levelled against the appellant. It /s not in dispute that the appellant being a public sen/ant used to submit his yearly property return relating to his movable and immovable property and the appellant has a/so submitted his retum in the year 1975 showing his entire movable and immovable assete. No query whatsoever was ever ra/secf about the movable and immovable assets of the appellant. In fact, the respondent did not produce any evidence in support of and/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 sameset offacts and evidence. It was submitted that the departmental proceedings and the criminal case are based on identical and similar (verbatim) set offacts and evidence. The appellant has been honourably acquitted bythe competent court on the same set of facts, evidence and witness and, therefore, the dismissal order based on the same set offacts and evidence on the departmental side is liable to be set aside in the interest ofjustice." 30. The judgments relied on by the leamed counsel appearing for the respondents are distinguishable on facts and on law: In this case, the departmental proceedings and the criminal case are based 0/7 identical and similar set of facts and the charge in a departmental caseagainst 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 (2006) 5 SCC 446 ^^s^^£^^N^^^^^^^^^^^^®E^^ \5 -l^ pmceedings 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 noficed orgranted 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 cameto the conclusion that the charges were established against the appellant. The same witnesses were examiried 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 thecharge has not been proved. It is alsoto be noticed that the judicial pronouncement was made afier 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 ffie 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 whksh 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." ^•^,' -^, • S:^S^&&ii<£? 10 15. There is common thread running into the above cited decisions that when the same witnesses are examined in the criminal case and the Griminal court on the examination, come to the conclusion that the prosecution has not proved the guilt alleged against the petitioner beyond any reasonable doubt and acquitted the petitioner herein by its judicial pronouncement with the finding that the charge has not been proved, the finding recorded in the departmental enquiry contrary to the finding of the criminal Court would be unjust and unfair. Therefore, the petitioner is entitled for reinstatement in service. 16. So far as grant of back wages and other consequential benefits is concemed, sincethe petitioner is working in the Police Department which demands strict adherence to the rules and procedure more than any other department, the petitioner is not entitled to back wages. 17 The Supreme Court, in State of U.P. & Others v. Ashok Kumar Singh & another, observed that "a po/;ce constable, serving in disciplined force, which demands strict adherence to the rules and procedure more than any other department, in absenting himself from duty without permission, has committed grave misconduct, which has rightly resulted into r-emoval from service." is Further, in Commlssioner of Police v. Syed Hussain , the Supreme Court observed that "in view ofthe nature ofduties that 6 (1996) 1SCC302 7(2006)2CGU75 .<«" ^ ~'^ ^. -^, I g 11 I^ BSIIE a protector of law is required to perform, it cannot be said that the disciplinary authority had committed any error imposing the punishment of removal from service upon the respondent, particularly when on several occasions he has been found guilty of misconduct' ig. For the reasons mentioned hereinabove, the impugned orders dated 6-9-2001 (Annexure - P/1), 27-11-2001 (Annexure - P/2), 23-4-2002 (Annexure - P/3) and 11-12-2002 (Annexure - P/4) are quashed. The petitioner is entitled to reinstatement in service without back wages. 2o. In the result, the writpetition is partly allowed. 21. There shall be no order asto costs. Gowri Sd/- satish K-Asnihotri Judge i'» tv 5^K ?-S^-ift?^5!j^^^^2-'-i i i'^';ni-^SB;a'S?i"i;: •sS^x-S^S^S«^£S^S&'^:'--yi-'''^''t; 'S:^rffcs?~":' -t"- .t>i-";:-i"