CIVIL WRIT PETITION NO.13795 OF 2009 :{ 1 }: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH DATE OF DECISION: SEPTEMBER 09, 2009 ASI Rajender Parshad .....Petitioner VERSUS State of Haryana and others ....Respondents CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH 1. Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? PRESENT: Mr. N. D. Achint, Advocate, for the petitioner. **** RANJIT SINGH, J. The petitioner, who has been dismissed from service on a charge of having received illegal gratification, has challenged the said order on the ground that he has been acquitted of the charges made against him before a criminal trial and hence, the order of his dismissal be set-aside. While serving as Assistant Sub Inspector, the petitioner was placed under suspension on 10.5.2007. Simultaneously, a case was also registered under the Prevention of Corruption Act at Police CIVIL WRIT PETITION NO.13795 OF 2009 :{ 2 }: Station, Khol. A departmental enquiry was ordered against him, which was conducted by Deputy Superintendent of Police, Rewari. On 13.5.2008, the petitioner was acquitted of the charges. Deputy Superintendent of Police, Rewari, however, returned a verdict of guilt against the petitioner on 16.8.2008. Thereafter, a show cause notice was issued to the petitioner on 18.8.2008. After considering his reply, the petitioner was dismissed from service on 30.8.2008. The petitioner filed an appeal against this order, which was dismissed on 28.9.2008 and, thus, he has filed the present writ petition to impugn the order of dismissal as well as the order rejecting his appeal. The counsel for the petitioner would first contend that once the petitioner has been acquitted by criminal court of the charge alleged against him, then the order of dismissal passed by the authorities for the same very allegations can not be allowed to stand. In support of his submission, the petitioner has placed reliance on Surinder Nath Kumar Vs. State of Punjab and another, 1990 (1) RSJ 747. It is noticed that enquiry was ordered against the petitioner on 10.5.2007, criminal proceedings were commenced against the petitioner on 8.10.2007, of which he was acquitted on 13.5.2008. The Enquiry Officer held the petitioner guilty on 16.8.2008 and after serving show cause notice, the dismissal order was passed on 30.8.2008. Thus, the factum of acquittal of the petitioner by the criminal Court was there before the authorities when the dismissal order was passed. The petitioner was at liberty to bring this aspect to the notice of the competent authority. Indeed he had done so. After considering this aspect, the competent authority has CIVIL WRIT PETITION NO.13795 OF 2009 :{ 3 }: found that the main witness made a statement in the departmental enquiry that the petitioner had put demand before the complainant and accepted the illegal gratification from the complainant but he immediately put the money in the pocket of Head Constable Hawa Singh. It is accordingly held that charges levelled against the petitioner have been fully proved in the departmental enquiry. The order of acquittal by the criminal Court was, thus, not considered to have any effect on the order of dismissal. It can not be disputed that the standard of proof required for proving a charge in a criminal case and the one in the departmental enquiry would vary. To hold a person guilty in a criminal case, the charges are required to be proved beyond shadow of reasonable doubt. However, for the purpose of departmental enquiry that strict and rigid standard of proof is not the essential requirement. No doubt, in the case of Surinder Nath Kumar (supra), it was held that where the criminal has ended in acquittal and the witnesses in both the proceedings are same, then the departmental action can not be sustained. It, however, is not established that the witnesses and the proceedings before both the Forums were the same. Rule 16.3 of the Punjab Police Rules (for short, “the Rules”) also makes a provision in this regard but there are some exceptions carved out in the said Rule. One such exception is where the criminal charge has failed on technical grounds. The judgment passed by the criminal Court has been placed on record, which would show that allegation of acceptance and recovery of money was proved from the unflinching testimonies of PW7 and PW10. This money was recovered from the possession CIVIL WRIT PETITION NO.13795 OF 2009 :{ 4 }: of Head Constable Hawa Singh. He was accordingly found guilty but it is the remaining aspect of the prosecution case that this money was handed over to Head Constable Hawa Singh and was meant for the petitioner, could not be sufficiently established in the criminal trial. It came on record of the enquiry proceedings that Smt.Bhagwati gave two currency notes to the petitioner, which had the signatures of the raiding party, which he took and immediately put in the pocket of Hawa Singh from where these were recovered by the raiding party. They both accordingly were proceeded against, leading to acquittal of the petitioner, but conviction of said Hawa Singh. The finding recorded in the criminal proceedings, as such, was rightly not given much credence and as it is a case where in the judgment of the Court in the criminal case actually has concluded that the offence alleged was committed and one of the co-accused has been found guilty of the same. It will, thus, not be a case where acquittal in itself should lead to effect the dismissal order passed on the evidence lead before the departmental enquiry. Evidence was given to this effect that the petitioner had accepted the bribe and had put this amount in the pocket of Hawa Singh. The legal position that would emerge from the fact of this case or the rule position is different and the verdict in criminal trial would not have any effect on this dismissal. In NOIDA Enterprises Association Vs. NOIDA and others, 2007(2) RSJ 504, it has been held that standard of proof required in departmental proceedings is not the same as required to prove a criminal charge. Even if there is an acquittal in criminal proceedings, the same does not bar the departmental proceedings. In this case, the decision of the Government in deciding not to CIVIL WRIT PETITION NO.13795 OF 2009 :{ 5 }: continue with the departmental proceedings after acquittal in the criminal charge was held untenable and quashed. The conceptual difference between departmental proceedings and the criminal proceedings as had been highlighted by the Hon'ble Supreme Court in several cases were also referred to in the case of NOIDA Enterprises (supra) and in this regard reference was made to Kendriya Vidyalaya Sangathan and others Vs. T.Srinivas, 2004 (7) SCC 442, Hindustan Petroleum Corporation Ltd. And others Vs. Sarvesh Berry, 2005 (10) SCC 471 and Uttaranchal Road Transport Corpn. Vs. Mansaram Nainwal, 2006 (6) SCC 366. The position in law relating to acquittal in criminal case, its effect on the departmental proceedings and reinstatement in service has been dealt with by the Hon'ble Supreme Court in Union of India and another Vs. Bihari Lal Sidhana, 1997 (4) SCC 385. In Capt.M.Paul Anthony Vs. Bharat Gold Mines Limited and another, 1999 (2) SCT 660, it is again stated that the effect of the acquittal in a criminal case on the departmental proceedings would depend upon the fact situation in each case. In the instant case, it can not be said that the evidence in the departmental as well as criminal proceedings was the same without there being any iota of difference. Thus, the distinction, which is usually proved between the departmental and criminal proceedings on the basis of approach and burden of proof would be applicable in the instant case. Accordingly, I am not inclined to accept the submissions made by the counsel in this regard. The counsel next contends that order of his dismissal was passed by S.S.P, who was not competent as his promotion order CIVIL WRIT PETITION NO.13795 OF 2009 :{ 6 }: was passed by D.I.G. In this regard, he would seek support from Ashok Kumar Vs. State of Punjab and others, 1990 (2) RSJ 209. I am not impressed by this line of submission made by the counsel. As per Rule 12.1 (1), S.P is the appointing authority, upto Sub Inspector level and, thus, would be competent to pass the order of dismissal in respect of A.S.I. Order, Annexure P-8, which is termed as a promotion order, is only a list of those Head Constables who were brought on list D and Gazette notification Part II order was issued by Inspector General of Police, Gurgaon. It can not be read to mean to be an order of promotion. Superintendent of Police being the appointing authority would be competent to pass order of dismissal. This submission was rightly discarded by making reference to a case of Ikramuddin Ahmed Borah Vs. Superintendent of Police, Darrang, 1988 SCC (Supp.) 663 by the Hon'ble Supreme Court. The dismissal order passed by Superintendent of Police was upheld though the SI in this case was appointed by Principal of Police Training College. The counsel for the petitioner then submits to contest the finding of fact as recorded by the respondent authority while passing the dismissal order. The Court, while exercising writ jurisdiction, should generally avoid appreciation or re-appreciation of facts. Lastly, the counsel would contend that the long service of the petitioner was not kept in view while passing the order of dismissal and this would be in violation of Rule 16.2 of the Rules. Rule 16.2 provides that dismissal shall be awarded only for the gravest of misconduct or cumulative effect of continued misconduct proving incorrigible and complete unfitness for police service. No doubt Rule CIVIL WRIT PETITION NO.13795 OF 2009 :{ 7 }: 16.2 requires that in making an award, regard must be had to the length of service of the offender and his claim to pension. Could the requirement of this rule mitigate the gravity of the serious allegations made against the police officer, accused of accepting illegal gratification. Once the punishment of dismissal is upheld for misconduct of accepting illegal gratification, it can be said that such a person even if had a pensionable service, would not deserve pension. The consideration would just be a formality and must have been kept in view while awarding the punishment. The order, thus, may not call for interference on this ground as well. The writ petition is accordingly dismissed in limine. September 09, 2009 ( RANJIT SINGH ) khurmi JUDGE