Civil Writ Petition No.2127 of 1994 1 In the High Court of Punjab and Haryana, at Chandigarh. Civil Writ Petition No.2127 of 1994 Date of Decision: August 16, 2010 Gurmit Singh …Petitioner Versus State of Punjab and Others …Respondents CORAM: HON’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA. 1. Whether Reporters of local papers may be allowed to see the judgment? 2. Whether to be referred to the reporters or not? 3. Whether the judgment should be reported in the Digest? Present: Mr. Arihant Jain, Advocate for the petitioner. Mr. J.S. Puri, Additional Advocate General, Punjab, for the respondents. Kanwaljit Singh Ahluwalia, J. The petitioner seeks quashing of impugned order of dismissal from service, dated 8.10.1987 (Annexure P2), passed by respondent No.4-Senior Superintendent of Police, Sangrur, order dated 26.7.1993 (Annexure P4), whereby the appeal was dismissed by the Deputy Inspector General of Police, Patiala Range, Patiala, along with order dated 17.11.1993 (Annexure P5) which resulted into dismissal of the revision-cum-mercy petition, passed by the Inspector General of Police, Punjab. It has been further prayed that because of acquittal in a criminal case, the petitioner be reinstated into service. The petitioner was enrolled as a Constable on 26.9.1977. Thereafter, he was promoted as a Head Constable. It is pleaded that Civil Writ Petition No.2127 of 1994 2 so far as his service record is concerned, the petitioner had earned commendation certificates along with cash reward. The petitioner was named as an accused in case FIR No.100 dated 28.9.1987, registered at Police Station Tapa, under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985, wherein it was stated that the petitioner was allegedly found in possession of 51 bags, each containing 48 kgs. poppy husk, along with his two co-accused. In the above said FIR, the challan against the petitioner was submitted. The petitioner was tried by the Court of Additional Sessions Judge, Barnala, who vide its judgment dated 4.2.1992, acquitted the petitioner by granting benefit of doubt. After registration of the case, during the pendency of the trial, the petitioner was dismissed from service by the order of Senior Superintendent of Police, Sangrur, invoking the provisions of Clause (2) (b) of Article 311 of the Constitution of India. In the impugned order, it was stated that the petitioner was having links with opium smugglers and was also helping them in the smuggling activities. The order further stated that these activities of the petitioner were highly prejudicial and detrimental to the police force. The petitioner was the member of a disciplined force. He was involved in a case pertaining to smuggling of narcotic drugs. Mr. Arihant Jain, Advocate, appearing for the petitioner, has relied upon Ashok Kumar v. State of Punjab and Others 1990(2) Recent Service Judgments 209 to state that before the provisions of Article 311(2) are to be invoked under Rule 16.38 of Punjab Police Rules, the District Magistrate is to decide as to whether departmental Civil Writ Petition No.2127 of 1994 3 enquiry should be held or a criminal prosecution should be launched. The second contention raised is that before that the Senior Superintendent of Police, Sangrur, had to formulate an opinion that it was not reasonably practicable to hold an enquiry in the case. It is urged that before taking recourse to Article 311 of the Constitution of India, for dispensing with the enquiry, it is necessary that there should be material before the competent authority to come to this conclusion. Lastly, it is submitted that once the petitioner was acquitted in the criminal case, the termination order is liable to be set aside. In support of this contention, reliance has been placed upon Sher Gir v. State of Punjab (Civil Writ Petition No. 13602 of 1991, decided on 23.12.2008) and Karamjit Singh v. State of Punjab and Another (Civil Writ Petition No. 2495 of 2001, decided on 28.5.1993). I have heard learned counsel for the parties. The judgments relied upon by learned counsel for the petitioner are not applicable to the facts of the present case. From the perusal of the facts, which have been enumerated above, the following questions arise for the consideration of this Court:- A) Whether there was a justification for the Punishing Authority to dispense with the regular enquiry by invoking Clause (2)(b) of Article 311 of the Constitution of India? B) What is the effect of acquittal of the petitioner in a criminal case especially when the acquittal has been recorded by granting benefit of doubt? A perusal of the impugned order (Annexure P2), passed by Civil Writ Petition No.2127 of 1994 4 the Senior Superintendent of Police, Sangrur, on 8.10.1987, reveals that the Punishing Authority had recorded its satisfaction to the effect that the conduct of the petitioner was highly prejudicial and detrimental to police working as well as against the public interest. It further noticed that the retention of the Head Constable in the Police Department was not desirable in the public interest. The following portion of the order requires attention of this Court:- “...3. And whereas I am further satisfied that it is not reasonably practicable to hold a departmental enquiry under Punjab Police Rules 16.24 against this Head Const. as in such departmental enquiry if instituted the said smugglers are not likely to depose against him on account of their links with him”. In support of the portion of the impugned order (Annexure P2), reproduced above, Mr. J.S. Puri, Additional Advocate General, Punjab, appearing for the respondents, has relied heavily upon the enquiry report, conducted by the Deputy Superintendent of Police, Barnala. In the enquiry report, it was stated that one accused, during the course of interrogation, had disclosed regarding the involvement of the petitioner in the crime pertaining to Narcotic Drugs and Psychotropic Substances Act, 1985. Once the officials had interrogated the accused, who also named the petitioner, they could be conveniently examined by the Enquiry Officer. Furthermore, the evidence which has been led before the Criminal Court could also be produced before the Enquiry Officer. Apparently, there was no justification to dispense with the enquiry. The reasons stated in the order are too general and vague. These Civil Writ Petition No.2127 of 1994 5 allegations can be imputed to any person. It is very easy to say that the delinquent employee had links with smugglers. It is in this context, the Courts have always held that the enquiry should not be lightly dispensed with. A Division Bench of this Court in Swaran Singh and Others v. State of Punjab and Others 1996(3) Service Cases Today 113 has observed as under:- “...7. In regard to Article 311(2)(b) of the Constitution, we find that not only the impugned order does not show application of mind by the competent authority to the requirement of constitutional provision, the record produced by Shri Walia also does not contain any material showing that the competent authority was satisfied, on the basis of good and sufficient reasons, that it was not reasonably practicable to hold inquiry. It is not a case in which the respondents have come forward with a plea that holding of inquiry against the petitioners was improbable. It was not a case in which the respondents have come out with a case that the persons from whom the petitioners had extorted money would not come forward to depose against the petitioners. It is also not a case in which the respondents have placed any material before the Court to show that the petitioners had threatened any person for giving evidence against them. Thus, we do not find any ground on the basis of which the Civil Writ Petition No.2127 of 1994 6 impugned order can be sustained with reference to Article 311(2)(b) of the Constitution. In this connection, we may refer to two recent decisions of this Court in Ex-Constable Sangram Singh v. State of Punjab and others, 1995(4) SLR 536 : 1995(3) SCT 725(P&H), and Gurdev Kaur v. State of Punjab and others, 1995(5) SLR 610 : 1996(1) SCT 142 (P&H)(DB). In both the cases, the court has analysed the provision of Article 311 and has referred to the decisions in Arjun Chaubey v. Union of India, 1984(2) SLR 16, Jaswant Singh v. State of Punjab, AIR 1991 SC 385 : 1991(1) SCT 125 (SC), Chief Security Officer and others v. Singasan Rabi Das, 1991(2) SLR 140 : 1992(1) SCT 595(SC), Kedarnath Singh v. Union of India and others, 1984(2) SLR 347, M.K. Kunjappan v. President of India and others, 1984(2) SLR 669, and Shri Naresh Kumar and another v. Commissioner of Police and others, 1992(7) SLR 177, and held that unless cogent material was placed before the Court to show that it was not reasonably practicable to hold the inquiry, the order of dismissal passed with preference to Article 311(2) (b) cannot be sustained. In our opinion the principle laid down in these two decision is fully applicable to Civil Writ Petition No.2127 of 1994 7 the case in hand and the impugned order is liable to be declared as void”. To borrow the words from the judgment of Division Bench rendered in Swaran Singh's case (supra), this Court cannot observe that any cogent material has been placed before it to say that it was not reasonably practicable to hold the enquiry. Learned Single Judge of this Court in Ex-Constable Balwinder Singh v. The State of Punjab and Others 2003(2) Service Cases Today 137 held that when the evidence could be led in a criminal case, why that evidence could not be led in the departmental enquiry. Therefore, non holding of regular enquiry by invoking the provisions of Clause (2)(b) of Article 311 of the Constitution of India was held bad. The Hon'ble Apex Court in Sudesh Kumar v. State of Haryana and Others (2005)11 Supreme Court Cases 525 held that an enquiry under Article 311(2) of the Constitution of India is a rule and dispensing with the enquiry is an exception. It was further held that the Authority, dispensing with the enquiry under Article 311 (2)(b) of the Constitution of India, must satisfy for reasons to be recorded that it is not reasonably practicable to hold an enquiry. The reasons stated that if departmental enquiry is instituted, the smugglers would not depose with whom the petitioner had links is not a satisfied explanation. To rely upon the inference made by this Court, it will be necessary to reproduce the following portion of the judgment rendered in Sudesh Kumar's case (supra):- “...5. It is now established principle of law that an inquiry under Article 311(2) is a rule and Civil Writ Petition No.2127 of 1994 8 dispensing with the inquiry is an exception. The authority dispensing with the inquiry under Article 311(2)(b) must satisfy for reasons to be recorded that it is not reasonably practicable to hold an inquiry. A reading of the termination order by invoking Article 311(2)(b), as extracted above, would clearly show that no reasons whatsoever have been assigned as to why it is not reasonably practicable to hold an inquiry. The reasons disclosed in the termination order are that the complainant refused to name the accused out of fear of harassment; the complainant, being a foreign national, is likely to leave the country and once he left the country, it may not be reasonably practicable to bring him to the inquiry. This is no ground for dispensing with the inquiry. On the other hand, it is not disputed that, by order dated 23.12.19999, the visa of the complainant was extended up to 22.12.2000. Therefore, there was no difficulty in securing the presence of Mr. Kenichi Tanaka in the inquiry. 6. A reasonable opportunity of hearing enshrined in Article 311(2) of the Constitution would include an opportunity to defend himself and establish his innocence by cross-examining the prosecution witnesses produced against him and by Civil Writ Petition No.2127 of 1994 9 examining the defence witnesses in his favour, if any. This he can do only if inquiry is held where he has been informed of the charges levelled against him. In the instant case, the mandate of Article 311 (2) of the Constitution has been violated depriving reasonable opportunity of being heard to the appellant”. This Court is conscious of the fact that the Hon'ble Apex Court in Kuldip Singh v. State of Punjab and Others 1996(4) Service Cases Today 595 relying upon Union of India v. Tulsi Ram Patel 1985 Supplementary(2) SCR 131 has held that the satisfaction of the Punishing Authority cannot be lightly interfered and the power of the judicial review under Article 226 of the Constitution of India should not be exercised in the manner as the Writ Court will sit over the judgment of the Punishing Authority like the Court of First Appeal. Even that being so, the legal position which emerges is that the Court should be reasonably satisfied that there was some cogent material before the Punishing Authority to dispense with the enquiry envisaged under Article 311(2)(b) of the Constitution of India. The words that it was not reasonably practicable to hold an enquiry must be justified by the Authority before the Court by placing some cogent material. Once the Court is satisfied that there was some material before the Disciplinary Authority it will be hesitant to apply its mind, regarding the truth and veracity of the allegations. Thus, in view of the discussion made above, this Court is of the opinion that the order of dismissal, passed with preference to Article Civil Writ Petition No.2127 of 1994 10 311(2)(b) of the Constitution of India cannot be sustained, in view of the ratio of law as noticed by a Division Bench of this Court in Swaran Singh's case (supra). The impugned order dated 8.10.1987 (Annexure P2) along with subsequent orders dated 26.7.1993 (Annexure P4) and 17.11.1993 (Annexure P5), passed by the Appellate and Revisional Authorities, is liable to declared as void. The above said view formulated by this Court is also fortified by a well reasoned judgment of this Court pronounced in Smt. Surinder Kaur Wd/o Sh. Labh Singh v. State of Punjab through Director General of Police, Chandigarh, 2008(1) Service Cases Today 396. Question No.2. Now it is well settled that the rules governing a criminal trial are so stringent that a delinquent official, as an accused, may get benefit of doubt and the resultant acquittal may not necessarily entitle the employee for exoneration in the departmental enquiry. A Division Bench of this Court in Krishan Chander v. Union of India and Others 2008(1) Service Cases Today 613 has observed as under:- “...11. In our opinion, this order did not preclude the respondents from taking departmental action. The rules governing a criminal trial are so stringent that a delinquent official as an accused may get benefit of doubt and resultant acquittal, but that necessarily may not entitle him clearance in the departmental inquiry. It is well-settled that departmental proceedings can be continued even Civil Writ Petition No.2127 of 1994 11 after acquittal of the delinquent in the criminal case and the disciplinary authority can pass appropriate order on the basis of evidence produced during the inquiry. The object of criminal trial is to inflict appropriate punishment on the offender/delinquent, while the purpose of departmental proceedings is to deal with the delinquent official in such a manner as to serve as a deterrent to other employees. In criminal trial, confession made by the accused before someone or before the superior officers is inadmissible in evidence against him, which is not the case in the departmental inquiry. The strict rules of evidence and procedure do not apply in departmental proceedings. The degree of proof which is necessarily required in order to record a conviction against the accused is also different as compared to the punishment in departmental proceedings. However, the fact remains that merely because the delinquent has been acquitted, the power of the department to continue with the departmental proceedings is not taken away or in any way fettered to proceed against the accused departmentally. In the case of State of Andhra Pradesh and others v. Sree Rama Rao, AIR 1963 SC 1723, it has been held by the Apex Court that the report of the Inquiry Officer that the judgment of Civil Writ Petition No.2127 of 1994 12 the Magistrate holding a criminal trial against a public servant could not always be regarded as binding in a departmental inquiry against that public servant was not suffering from any error. It was further held that the conclusions of the departmental officers were borne out from the evidence before them and the High Court has no jurisdiction to set aside the order either on the ground that the approach to the evidence was not consistent with the approach in a criminal case nor on the ground that the High Court would have on that evidence come to a different conclusion”. In the judgment rendered in Commissioner of Police, New Delhi v. Narender Singh (SC) 2006(2) Service Cases Today 441, the Hon'ble Apex Court observed as under:- “...12. It is not in dispute that the standard of proof required in recording a finding of conviction in a criminal case and in a departmental proceeding are distinct and different. Whereas in a criminal case, it is essential to prove a charge beyond all reasonable doubt, in a departmental proceeding preponderance of probability would serve the purpose. [See Kamaladevi Agarwal v. State of W.B. and Others, (2002)1 SCC 555] 13. It is now well-settled by reason of a catena of decisions of this Court that if an employee has Civil Writ Petition No.2127 of 1994 13 been acquitted of a criminal charge, the same by itself would not be a ground not to initiate a departmental proceeding against him or to drop the same in the event an order of acquittal is passed. 14. In Manager, Reserve Bank of India, Bangalore v. S. Mani and Others, 2005(2) SCT 404 : [(2005)5 SCC 100], this Court held : "It is trite that a judgment of acquittal passed in favour of the employees by giving benefit of doubt per se would not be binding upon the employer..." [See Bank of India and Another v. Degala Suryanarayana, 1999(3) SCT 669 : (1999)5 SCC 762; Ajit Kumar Nag v. General Manager (PJ), Indian Oil Corporation Ltd., Haldia and Others, 2005(4) SCT 341 : (2005)7 SCC 764]”. Thus, an acquittal of a delinquent official ipso facto may not absolve him of undergoing disciplinary enquiry. However, where the charges were absolutely identical, ordinarily the same enquiry ought not to be resorted to. In Sham Sunder Gupta v. State Bank of India (P&H) 1996(3) Service Cases Today 444, it was held that the employer is not barred from initiating enquiry against the delinquent employee, after his acquittal unless the Criminal Court had returned the finding that the charge levelled against the delinquent was frivolous or false. In the present case, the conclusion of the judgment of acquittal reveals that the Additional Sessions Judge, Barnala, who tried the Civil Writ Petition No.2127 of 1994 14 petitioner in the judgment dated 4.2.1992 (Annexure P3) had recorded acquittal of the petitioner by granting benefit of doubt. Another question which arises for consideration of this Court is that where even though the acquittal has been recorded by granting benefit of doubt, whether the Court can examine the judgment of acquittal to say that even benefit of doubt meant honourable acquittal. A Division Bench of this Court in Bhag Singh v. Punjab and Sind Bank 2006(1) Service Cases Today 175 has held that mere mentioning of words “benefit of doubt” by the Criminal Court is not sacrosanct. That question has been left open to the discretion of the Enquiry Officer. It will be apposite here to reproduce below the relevant portion of Bhag Singh's case (supra):- “...In both the cases, he was acquitted by the Designated Court, Sangrur. In the trial held on the basis of FIR dated 10.12.1988, the trial Court, whilst acquitting the petitioner, observed as follows :- "6. In this case the charge against the accused persons is that on 10.8.88 they had assembled in the area of V. Ghabdan armed with deadly weapons and were making preparation for dacoity and they were holding meeting and talking about the same. None of the witnesses examined by the prosecution has repeated the words uttered by each of the accused. It cannot be believed that the secret Civil Writ Petition No.2127 of 1994 15 informer heard their talks and he told the talks to the police and when I.O. came to the spot, they repeated the same utterance. It cannot be believed that accused will be holding a meeting near the main road where they can easily be spotted. There is no independent corroboration. The prosecution case rests solely on the testimony of official witnesses. The accused have been involved in two other cases as also one u/s 302 IPC read with Section 34 IPC, 307/34 IPC, 397 IPC, 120-B IPC and Section 3 TADA Act and the other under Section 25 Arms Act wherein they have been acquitted today. No weapon has been shown to have been recovered from the accused in this case, nor the recovered weapons have been produced at the time of statement of I.O. or other P.W. From all this I am of the considered view that the prosecution has not been able to prove the charge against the accused beyond reasonable doubt. The accused is entitled to benefit of doubt and acquitted." Civil Writ Petition No.2127 of 1994 16 Records be consigned. Pronounced Sd/- Addl. Judge 3.6.98 Designated Court, Sangrur" 8. FIR No. 152 was under Sections 307/34, 307, 120-B, IPC, 302/34 IPC, read with Section 3 of the TADA Act, 1987. During trial, 22 witnesses were examined by the prosecution. Again the petitioner has been acquitted with the following observations:- "The prosecution case was that on 25.11.88 Varinder Singh Cashier handed over currency notes of Rs. 1.5 lac to Sh. Bharpur Singh Cashier for depositing the same at Bhawanigarh Branch of the bank. Bharpur Singh Cashier alongwith Sukhdev Singh Gunman went on Scooter No. PAS 4995 for depositing the amount and when they reached near bus stop Jhuneri three Sikh gentlemen came from behind on scooter and brought near the scooter of Bharpur Singh and fired shot hitting Sukhdev Singh Gunman on right temple and when he fell down some more shots were fired. Sukhdev Singh was killed, Bhupinder Singh was injured. This Bhupinder Singh Cashier did not support the prosecution version. He is injured and Civil Writ Petition No.2127 of 1994 17 star witness of the prosecution. He was declared hostile and even in his cross- examination prosecution could not bring anything in its favour. None of the remaining witnesses whose evidence has been discussed has stated that accused Bhag Singh, Mohinder Singh were involved in the crime in any manner. The witnesses even did not identify them in Court. In theses circumstances I hold the prosecution has failed to bring home the charge to the accused beyond any reasonable doubt. The accused are, therefore, given benefit of doubt and are acquitted of the charge framed against them. They are on bail and their bail bonds are discharged. Records be consigned. Pronounced 3.6.98 Sd/- Add. Judge Designated Court, Sangrur." In both the cases, inspite of the clear observations that there was no evidence against the petitioner, the trial Court observed that the accused are given benefit of doubt and acquitted of the charges framed against them. Relying on the aforesaid observation, Civil Writ Petition No.2127 of 1994 18 the respondents have denied the benefit of full pay and allowances to the petitioner. In our opinion, the mere use of the expression "benefit of doubt" or "not proved beyond reasonable doubt" by the trial Court or the appellate Court, cannot be permitted to convert an acquittal on the ground of no evidence, to something less than that. The concepts of "Honourable Acquittal", "fully exonerated" or "acquitted