S.B.C.W.P.No.1614/96-Magha Puri vs. state of Raj. Order dt: 11/11/08 1/8 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR O R D E R Magha Puri vs. State of Rajasthan S.B.CIVIL WRIT PETITION NO. 1614/96 DATE OF ORDER : 11/11/2008 P R E S E N T HON'BLE DR.JUSTICE VINEET KOTHARI Mr.Mukesh Vyas, for the petitioner. Mr.B.L.Tiwari,Addl. G.A. for the respondents. REPORTABLE 1. By this writ petition, petitioner, a dismissed constable of the Rajasthan Police Service, has challenged the impugned order of his dismissal from service Annex.4 dated 17/8/1995 passed by the Superintendent of Police, Bikaner against which his appeal also came to be dismissed by appellate authority – Deputy Inspector General of Police, Bikaner on 12/10/1995. 2. The petitioner was charged with the allegation of taking bribe of Rs.40,000/- for helping the complainant Moti Puri and others AND squaring up a criminal case no. 54/90 filed against those accused S.B.C.W.P.No.1614/96-Magha Puri vs. state of Raj. Order dt: 11/11/08 2/8 persons under Section 498 A and 406 IPC in Thana, Naya Shehar Bikaner, where the petitioner was working as constable at the relevant point of time. 3. Earlier petitioner had approached this Court by way of writ petition No.1813/1993 on the ground that copy of inquiry report was not supplied to him. Said writ petition came to be disposed of by this Court on 8/11/1994, wherein, earlier orders of disciplinary authority dated 18/7/1991 and 11/12/1991 were set aside and respondents were directed to supply copy of inquiry report to the petitioner. Accordingly, the copy of inquiry report was furnished to the petitioner and he was given an opportunity of hearing in the matter. 4. The inquiry report Annex.3 dated 30/5/1990 is on record. The said inquiry report discloses that as many as 09 witnesses were examined on behalf of the department as prosecution witnesses and except P.W.1 Smt. Ganga, who was declared hostile, other prosecution witnesses have proved the charges against the petitioner. In the form of defence evidence, the petitioner produced copy of passbook of his father showing withdrawal of Rs.30000/- in the month of June, 1990. 5. After discussing the said evidence, the Enquiry Officer concluded that petitioner is guilty of the charge levelled against him. S.B.C.W.P.No.1614/96-Magha Puri vs. state of Raj. Order dt: 11/11/08 3/8 On the basis of said inquiry report, the disciplinary authority passed the impugned order dated 17/8/1995 after considering the representation of petitioner after he was furnished with the copy of inquiry report. The punishment of dismissal from service was imposed upon the petitioner. The appeal filed by the petitioner before the Deputy Inspector General of Police, Bikaner also failed on 12/10/1995. 6. Being aggrieved of the said orders, the petitioner approached this Court by way of present writ petition. 7. Learned counsel for the petitioner Mr.Mukesh Vyas submitted that since the petitioner was acquitted of the charge under Section 420 IPC in a criminal complaint filed against him on the basis of same allegation of taking bribe of Rs.40,000/- in relation to criminal case no. 54/1990 under Section 498 A and 406 IPC on a mutual comprise and the said offence was compounded before the learned criminal court vide Annex.1, therefore, there was no basis to hold the petitioner guilty of the charge and the findings of the inquiry officer are vitiated and orders of punishment of dismissal passed by disciplinary authority and upheld by the appellate authority deserve to be set aside. He relied upon decision of Supreme Court in case of G.M.Tank vs. State of Gujarat & ors. - 2006 CDR 396 (SC), S.B.C.W.P.No.1614/96-Magha Puri vs. state of Raj. Order dt: 11/11/08 4/8 wherein, the Hon'ble Supreme Court has held that where a person is acquitted honorably by the competent court on the same set of facts, evidence and witness, the dismissal order based on same set of facts and evidence on the departmental side is liable to be set aside. The case before the Supreme Court arose under Section 5 (1)(e) of the Prevention of Corruption Act relating to disproportionate assets. Learned counsel for the petitioner, therefore, prayed for allowing the present writ petition and quashing the impugned orders Annex.4 dated 17/8/1995 and 12/10/1995. 8. These submissions are opposed by Mr.B.L.Tiwari, learned counsel for the respondents, who vehemently submitted that the parameters for holding departmental inquiry for a charge of misconduct are entirely different than the criminal trial held by a competent court. He submitted that in the present case it cannot be said that present petitioner was tried by the competent court for the criminal offence under Section 420 IPC. He submitted that on the basis of compromise between the parties and acquittal from the offence under Section 420 IPC the misconduct of accepting bribe was not wiped out and still the departmental inquiry and findings of inquiry officer based on independent evidence of witnesses cannot be brushed aside on the basis of such compromise between the S.B.C.W.P.No.1614/96-Magha Puri vs. state of Raj. Order dt: 11/11/08 5/8 complainant and accused in a criminal case under Section 420 IPC. He further submitted that decision of Supreme Court in G.M.Tank's case (supra) does not help the case of petitioner in any manner. The same set of evidence and facts are neither available in the present case nor after regular criminal trial the petitioner can be said to be honorably discharged by a competent court. He submitted that proper departmental inquiry having been held against the petitioner, the order of dismissal as upheld by the appellate authority is perfectly justified. 9. Further denying the contention of learned counsel for the petitioner about the opportunity to allow the cross examination in departmental inquiry, learned counsel for the respondent submitted that firstly the petitioner never asked for such an opportunity before the inquiry officer nor raised this ground before the authorities of the Department nor such ground has been raised in the present writ petition and, therefore, the same cannot be allowed to be raised at this stage and secondly, since the principles of natural justice were complied with in the present case in the form of opportunity of representation having been given to the petitioner after the copy of inquiry report was furnished to him in pursuance of directions of this Court while deciding the earlier writ petition, it cannot be said that S.B.C.W.P.No.1614/96-Magha Puri vs. state of Raj. Order dt: 11/11/08 6/8 principles of natural justice have been violated in the present case at the hands of respondent authorities. He, therefore, prayed for dismissal of writ petition. 10. I have heard learned counsels and given my thoughtful consideration to the orders passed by the authorities and facts of the case. 11. It is true that if on the basis of same set of facts, evidence and witnesses if a criminal court discharge a person of the same charge or offence which is involved in the departmental inquiry, then his discharge or acquittal can have some relevance to the departmental inquiry. Otherwise, the law is well settled that departmental inquiry for the alleged misconduct has different connotation and parameters. While a criminal offence has to be proved by the prosecution beyond reasonable doubt before the competent court, in the departmental inquiry the preponderance of probability is the criteria. The findings of inquiry officer need not prove the charge on the same parameters as a charge before the competent court exercising criminal jurisdiction is required to be proved. In the present case, it cannot be said that on the basis of same set of evidence and witness, the petitioner was acquitted or honorably discharged by the criminal court. On the other hand, petitioner was not even tried by the S.B.C.W.P.No.1614/96-Magha Puri vs. state of Raj. Order dt: 11/11/08 7/8 competent court in view of compromise between the complainant and the accused under Section 420 IPC vide Annex.1 before the trial began and, therefore, the judgment in the case of G.M.Tank (supra) relied upon by the learned counsel for the petitioner is of little help to the petitioner. On the contrary, inquiry officer after examining as many as 08 independent witnesses came to the conclusion that petitioner was guilty of taking bribe of Rs.40,000/- for assuring to help and square up the criminal case under Section 498 A and 406 IPC. The various witnesses before the inquiry officer deposed that they had to manage the fund of Rs.40,000/- even by selling their live stocks and by borrowing the fund. The findings of inquiry officer in relation to serious charge of accepting bribe by the petitioner was well proved and on the basis of said inquiry report, the disciplinary authority after considering the representation of the petitioner found it a fit case for imposition of penalty of dismissal from service. It is needless to say that in police service, which is rather ill famous for corruption, accepting bribe for settling and helping in a criminal case triable by competent court is a very serious charge and findings of inquiry officer based on independent witnesses cannot be lightly set aside or brushed aside on technical grounds. At the same time, punishment of dismissal from service on the basis of such proved S.B.C.W.P.No.1614/96-Magha Puri vs. state of Raj. Order dt: 11/11/08 8/8 charge of taking bribe also cannot be said to be disproportionate in any manner. The said punishment on the other hand is absolutely commensurate with the kind of charge levelled and proved against the petitioner. 12. Thus, this Court finds no ground to quash the impugned orders passed by disciplinary authority and appellate authority awarding punishment of dismissal from service against the petitioner. Consequently, the writ petition has no force and same is accordingly dismissed. (DR.VINEET KOTHARI),J . item no. baweja/-