C.W.P. No.3198 of 2011 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH. C.W.P. No.3198 of 2011 (O&M) DATE OF DECISION : 5.12.2011 Baljit Singh PETITIONER VERSUS The State of Haryana and others RESPONDENTS CORAM : HON'BLE MR.JUSTICE MAHESH GROVER Present:- Shri R.N.Lohan, Advocate for the petitioner. Shri Sunil Nehra, Senior D.A.G. Haryana MAHESH GROVER, J. The petitioner is aggrieved by the orders dated 4.3.2009 Anneuxre P-5, dated 4.6.2009 Annexure P-7 and dated 9.7.2010 Annexure P-8 whereby he has been dismissed from service on the allegation that he had accepted illegal gratification. The facts of the case are that on 21.8.2006, one Ram Bilas son of Raj Kumar made a report to the S.P., Vigilance Bureau, Hissar to the effect that his nephew Manjit Singh son of Rajbir Singh was involved in vehicle theft and a case had been registered against him and to hush up this case and to help accused Manjit Singh, the petitioner demanded Rs.5,000/- as illegal gratification. On this C.W.P. No.3198 of 2011 -2- allegation, an F.I.R. was registered against the petitioner and Inspector Ramesh Kumar was asked to take necessary action. He laid a trap for the petitioner by associating Umed Singh ASI, Bir Singh EHS and Tehsildar Radhey Shyam whose services were spared by the Duty Magistrate. A shadow witness was also associated and after following the process of law, currency notes were treated with phenolphthalin powder. The petitioner was caught red handed when the treated currency notes were given to him. He, however, threw the currency notes outside beyond the wall of the police station from where these were recovered. The prosecution built up its case broadly on the aforesaid allegations and the petitioner faced criminal prosecution. Along side, the departmental proceedings were also initiated against the petitioner. In the criminal trial, Inspector Ramesh Kumar, Tehsildar Radhey Shyam, the shadow witness Umed Singh ASI, Ram Bilas complainant and a few other witnesses were examined, but the trial Court acquitted the petitioner of the charges against him under the Prevention of Corruption Act finding them to be unreliable. The Enquiry had however, proceeded against the petitioner and concluded otherwise much prior to the conclusion of the criminal trial and it is on the basis of this departmental enquiry, that the petitioner stands dismissed from service by the competent authority and his appeal and revision against the said order have also been dismissed. Learned counsel for the petitioner contends that the material before the trial Court who proceeded with the criminal prosecution, was the same as was examined by the enquiry officer in the departmental proceedings and since an acquittal had been awarded to the petitioner in the criminal trial, therefore, the very same set of witnesses and the same evidence could not have been taken against him to record an adverse finding against him which has resulted in his dismissal. He has further contended that except for Ramesh Kumar Inspector, C.W.P. No.3198 of 2011 -3- no other witness who was associated with the trap such as Radhey Shyam Tehsildar and the shadow witness, were examined and in view of this, when the recovery concededly was effected from a place outside the police station, his dismissal cannot withstand judicial scrutiny. He thus, prays for setting aside of the impugned orders and also that considering the fact that the petitioner has rendered more than two decades of unblemished service, the same should be taken into consideration by the respondents while passing the order of punishment, even if it is accepted that the finding of the enquiry officer is to stand. Reliance has been placed on a decision rendered by this Court placed on record as Annexure P-9 to say that in similar circumstances, this Court had set aside the order of dismissal. He has further stated that Rule 16.3 does not contemplate dismissal on the ground that a person has been convicted under the Prevention of Corruption Act, as it has not been defined to be an act of gravest misconduct which is a pre-requisite for the respondents to accord a dismissal to an employee. Extensive reference has been made to Rule 16.3 which is extracted here below :- “16.3 Action following on a judicial acquittal :- (1) When a police office has been tried and acquitted by a criminal court he shall not be punished departmentally on the same charge or on a different charge upon the evidence cited in the criminal case whether actually led or not, unless :- (a) the criminal charge has failed on technical grounds : Or (b) in the opinion of the Court or of the Superintendent of Police, the prosecution witnesses have been won over ; or C.W.P. No.3198 of 2011 -4- (c) the Court has held in its judgment that an offence was actually committed and that suspicion rests upon the police officer concerned; or (d) the evidence cited in the criminal case discloses facts unconnected with the charge before the court which justify departmental proceedings on a different charge ; or (e) additional evidence admissible under rule 16.25(1) in departmental proceedings is available. 2. Departmental proceedings admissible under sub rule (1) may be instituted against lower subordinates by the order of the Superintendent of Police but may be taken against upper subordinates only with the sanction of the Deputy Inspector General of Police and a police officer against whom such action is admissible shall not be deemed to have been honourably acquitted for the purpose of rule 7.3 of the Civil Services Rules (Punjab) Volume I, Part I.” As against this, the learned counsel for the State of Haryana has opposed the prayer of the petitioner and contended that merely because a criminal Court has acquitted a person, would not ipso facto bar the departmental proceedings against the petitioner. He has further contended that the evidence before the enquiry officer in the shape of statement of Inspector Ramesh Kumar was elaborate and credible and that merely because the other witnesses have not been examined, would not make any difference to the case of the petitioner, if the C.W.P. No.3198 of 2011 -5- testimony of one witness is credible enough. He has further contended that the statement recorded of this witness Ramesh Kumar is unimpeachable for the reason that no material or motive has been attributed by the petitioner and even though he was given an opportunity to cross-examine him, he did not suggest to the said officer that he was deposing against him on account of any motive. He thus, contends that the petitioner has been rightly awarded the punishment keeping in view his conduct. Learned counsel for the petitioner relied upon a decision of the Hon'ble Supreme Court in G.M.Tank v. State of Gujarat and others 2006(5) S.C.C. 446, wherein the Hon'ble Supreme Court observed as under :- “The judgment 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 C.W.P. No.3198 of 2011 -6- 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. 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 Antony case will apply. We, therefore, hold that the appeal filed by the appellant deserves to be allowed.” C.W.P. No.3198 of 2011 -7- There would have been considerable ease in accepting the contention raised by the learned counsel for the petitioner on evaluating the case of the petitioner in the backdrop of the observations made by the Hon'ble Supreme Court in G.M.Tank v. State of Gujarat and others (supra), but for` the fact that the departmental enquiry against the petitioner stood concluded much prior to the conclusion of the criminal trial. The departmental proceedings against the petitioner which were concluded in 2007 and the order of dismissal passed in 2009, whereas the acquittal was awarded a year thereafter on 29.5.2010. The parameters of the standard proof required in departmental proceedings is acutely distinct from the one that is required in a criminal trial. In the departmental proceedings, overwhelming consideration which weighs with the authorities is to see whether the delinquent employee has conducted himself in a manner befitting the assignment that he holds, whereas the evidence in a criminal trial has to be of exemplary nature ; credible enough to erase any suspicion in the mind of the Court regarding the complicity and guilt of the accused. Therefore, strictly speaking, the plea of the learned counsel for the petitioner that other supporting witnesses who formed a part of the trap were not examined, and therefore, this has cast a doubt upon the departmental proceedings, is not correct. The testimony of Ramesh Kumar which is elaborate in nature when not established to be a result of any malice or ill will against the petitioner, was sufficient to derive an inference by the enquiry officer that the petitioner's conduct was not above board. The enquiry officer was not required to proceed with the case, as if he was conducting a trial and inferential material would have been enough for him to conclude as he did. Therefore, there is no reason to accept the prayer of the petitioner especially when it has been noticed earlier that the proceedings stood concluded much prior to the conclusion of the criminal trial which were concluded much later. C.W.P. No.3198 of 2011 -8- The other contention of the learned counsel for the petitioner that his entire service record has not been considered at the time of the imposition of the penalty of punishment, is also without any merit because of the reason that the charge against the petitioner reflected on his integrity and even one such established incident of misconduct is sufficient to discard an employee from active service. For the very same reason, the argument raised by the learned counsel for the petitioner that Rule 16.2 does not envisage any indictment on the charge of illegal gratification as one of the acts of gravest misconduct, has to be rejected. Rule 16.2 does not lay down exhaustive situation which can be construed to be gravest act of misconduct. Exemplifying certain situation, it has been given out in the rule that such examples inter alia are to be recorded as acts of gravest misconduct implying thereby that the misconduct can go beyond the examples which have been specified and in the opinion of the Court, member of any service, leave alone, a Disciplined Force, if found guilty of accepting an illegal gratification, amounts to gravest act of indiscipline and misconduct which is enough to see an incumbent out of service. For the aforesaid reasons, I am not inclined to accept the prayer which has been made by the petitioner. Petition is dismissed. (MAHESH GROVER) December 5, 2011 JUDGE GD WHETHER TO BE REFERRED TO REPORTER? YES/NO