High Court · 2012

3. Learned Single Judge considered the material relied upon by the Inquiry Officer in support of the four charges, namely, (i) consuming of country liquor while on duty and misbehaving with one civilian and creating nuisance at public place; (ii) entering into argument with his Section Commander and using abusive language against him; (iii) firing of 13(thirteen) rounds from his personal weap on at his superior and (iv) firing of rounds resulting in death of his superior.

4. Learned Single Judge found that in absence of any medical examination of the writ petitioner and having regard to the oral evidence examined, the charge of misbehaviour and nuisance was not established. As regards firing of rounds f rom the service weapon of the petitioner resulting in death of his superior, the said act was in self defence as the carbine of the deceased was fired first in the direction of the writ petitioner, leaving no option to the writ petitioner e xcept to fire. Same finding was reached by the Court trying the criminal case wh ere the plea of self defence was upheld. In the circumstances of the present cas e, the misconduct of causing death of his superior was not established. There wa s no iota of difference in the evidence led before the criminal court and in the departmental proceedings. Thus, only charge which was established was using of abusive language against superior officer and showing disrespect. In view of the fact that some of the charges alleged were not established, the order of punish ment was set aside with liberty to the appellant to pass fresh order.

5. quoted below :- The operative part of the findings recorded by learned Single Judge are There is no manner of doubt and it is not even disputed by the petitione (cid:28)9. r that in the present case he had fired 13 rounds from the service weapon allott ed to him which had resulted in the death of his superior, Head Constable Saidul lah Khan. However, according to the petitioner, he had acted in self defence and as the carbine of the deceased was fired first in the direction of the petition er, the petitioner was left with no alternative but to return the fire resulting in the death of the deceased. There is evidence available, which is overwhelmin g in nature, that it is the deceased who had initially opened fire at the petiti oner which would have resulted in disastrous consequences had it not been for th e intervention of the PW 2, S.I. Brahmanand. That apart, a reading of the judgme nt and order dated 23.3.2004 passed by the learned Sessions Judge in Sessions Ca se No.41 of 2003 would go to show that the plea of self defence was specifically taken by the petitioner in the trial against him and the learned Sessions Judge , after due consideration of the evidence on record, had upheld the said plea an d on that basis had acquitted the accused/ petitioner.

10. Reliance has been placed by Sri A. S. Choudhury, learned Senior Counsel appearing for the petitioner, on a decision of the Apex Court in G. M. Tank vs. State of Gujarat & another, reported in AIR 2006 SC 2129, to contend that when t he charge in a criminal case and in a departmental proceeding is identical and t he same witnesses are examined in both the proceedings it would be unfair and op pressive to allow the findings recorded in the departmental proceeding to stand in the face of the subsequent findings that may be recorded in the criminal case . Paragraphs 31 and 32 of the judgment in G. M. Tank (supra) which lays down the aforesaid proposition may be usefully extracted herein below : The judgment relied on by the learned counsel appearing for the responde (cid:28)31. nts are distinguishable on facts and on law. In this case, the departmental proc eedings and the criminal case are based on identical and similar set of facts an d 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 t he case launched against the appellant on the basis of evidence and material col lected against him during enquiry and investigation and as reflected in the char ge sheet, factors mentioned are one and the same. In other words, charges, evide nce, witnesses and circumstances, are one and the same. In the present case, cri minal and departmental proceedings have already noticed or granted on the same s et of facts namely, raid conducted at the appellant’s residence, recovery of art icles therefrom. The Investigating Officer, Mr. V. B. Raval and other department al witnesses were the only witnesses examined by the Enquiry Officer who by rely ing upon their statement came to the conclusion that the charges were establishe d against the appellant. The same witnesses were examined in the criminal case a nd the criminal court on the examination came to the conclusion that the prosecu tion has not proved the guilt alleged against the appellant beyond any reasonabl e doubt and acquitted the appellant by his judicial pronouncement with the findi ng that the charge has not been proved. It is also to be noticed the judicial pr onouncement was made after a regular trial and on hot contest. Under these circu mstances, it would be unjust and unfair and rather oppressive to allow the findi ngs recorded in the departmental proceedings to stand.

32. In our opinion, such facts and evidence in the department as well as cri minal proceedings were the same without there being any iota of difference, the appellant should succeed. The distinction which is usually proved between the de partmental and criminal proceedings on the basis of the approach and burden of p roof would not be applicable in the instant case. Though finding recorded in the domestic enquiry was found to be valid by the Courts below, when there was an h onourable acquittal of the employee during the pendency of the proceedings chall enging the dismissal, the same requires to be taken note of and the decision in Paul Anthony’s case (supra) will apply. We, therefore, hold that the appeal file d by the appellant deserves to be allowed. (cid:29)

11. In the present case charge No.3 partly and charge No.4, essentially, dea ls with the causing of death of Head Constable Saidullah Khan by the petitioner by firing from his service weapon. On the same facts, the petitioner was tried o n a charge under Section 302, I.P.C. The petitioner had set up a plea of self d efence which was the same plea that was taken in the departmental proceeding. In the criminal trial which was closed subsequently the plea set up by the petitio ner was found to be fully established on the basis of the evidence tendered in t he case. In such a situation, the Court is unhesitatingly of the view that the l aw laid down by the Apex Court in G. M. Tank (supra) would squarely apply to the facts of the present case. The relevant part of the findings on the charges ins ofar as causing of death of Head Constable Saidullah Khan is, therefore, interfe red with and set aside. This will bring the Court to a consideration of the remaining charges le 12. velled against the petitioner. The petitioner has been charged for consumption o f alcohol while on duty. In the statement of facts in support of the said charge it has been mentioned that such consumption of liquor was by going to the marke t which was situated nearby. No material has been laid in the departmental proce eding, as evident from a scrutiny of the evidence recorded therein, to the above effect. Though medical examination of the petitioner is claimed to have been ca rried out no report of such examination had been laid before the Court. Under th e first two charges i.e. charge Nos.1 and 2 it has been also alleged that the pe titioner had created commotion/nuisance and had abused his superior officer at t he Puja Mondap. PWs 3 and 9 had categorically denied that any such incident took place. The charge of consumption of alcohol while on duty and misbehviour or co mmission of nuisance at a public place as levelled against the petitioner, there fore, is not substantiated by the evidence and materials on record.

13. The further charge levelled against the petitioner as contained partly i n charge No.3 is that he misbehaved with his superior officer. The evidence of P Ws 2, 4, 5, 6, 8 and 9 makes it amply clear that while the petitioner and the de ceased were returning to the camp after duty from the Puja Mondap they were exch anging heated arguments and once they had reached the Camp and had fallen into l ine for deposit of the arms the petitioner continued to argue with the deceased and had in fact abused him. There is evidence to show that the petitioner had ev en referred to his superior officer (deceased) as not being fit to be a section commander. There is also evidence to the effect that the petitioner had used abu sive language against his superior though there is also material to show that hi s superior officer had behaved in the same way. The evidence of PWs 8 and 9 make s it amply clear that insofar as verbal abuse is concerned it is the petitioner who started it first. In such circumstances, the charge levelled against the pet itioner of using abusive language to his superior officer and showing disrespect to a higher rank, in the considered view of the Court, must be held to have bee n established by the evidence and materials available on record.

14. The next question that has to engage attention of the Court is what reli ef the petitioner is entitled to in view of the conclusion reached and recorded herein above. The imposition of punishment is a managerial function in the case of an industrial employee and that of the employer in other cases. Courts are no t the appropriate authority for deciding as to what should be an adequate measur e of punishment as such decision invariably involves consideration of a wide ran ging variety of facts and circumstances which the Court may not be aware of and may also be singularly ill-equipped to deal with.

15. In the present case the charge of abusing a senior and superior officer and showing disrespect to a senior officer has been proved against the petitione r. In such circumstances, the Court is of the view that what should be the adequ ate measure of punishment on account of the aforesaid charge held to be proved s hould be left to the decision and discretion of the disciplinary authority of th e petitioner. (cid:29)

6. We have heard learned counsel for the parties.

7. Learned counsel for the appellant submitted that there was no pleading i n the writ petition challenging the findings of the Inquiry Officer and, therefo re, learned Single Judge was not justified in going into the correctness thereof . It is further submitted that even if three out of four charges were held to be not proved, the order of dismissal from service could not have been interfered. Learned counsel for the appellant relied upon a judgment of the Hon’ble Supreme Court in P.D. Agarwal -Vs. State Bank of India and others, (2006) 8 SCC 776 in support of his submission.

8. We are unable to accept this submission. A perusal of the writ petition shows that there was challenge to the findings of the Inquiry Officer. In para-1 5 of the writ petition, it was stated that the deceased started firing initially and the writ petitioner fired in self defence and the disciplinary authority wi thout considering this aspect, passed the impugned order. In para-17, the findin gs of the Inquiry Officer have been challenged. In para-18, it has been stated t hat there was no evidence in support of the charges. Moreover, pleadings in a wr it are not to be construed technically. If in substance an issue is raised befor e the Court, the same can be dealt with by the Court unless there is prejudice t o the respondents. In the present case, the issue has been examined by the learn ed Single Judge after due opportunity to the appellant and no prejudice has been caused to the appellant. The appellant was aware of the issue under considerati on. Even in a departmental enquiry, the charge is required to be established tho ugh the standard of proof required is not that of a criminal trial nor technical principles of evidence law apply. Still, there has to be basis for holding a mi sconduct proved. Learned Single Judge has duly examined the matter and found tha t the Criminal Court had found that the writ petitioner-respondent had acted in self defence as his superior had fired from his weapon on the writ petitioner. M aterial before enquiry officer being same, different view on same facts was not fair. Similarly, other findings of creating nuisance and consuming liquor had no t been established from the evidence led by the department. We are conscious of the legal position that in judicial review of a finding in departmental proceedi ngs the Court is not to reappreciate evidence as if the Court was an appellate a uthority, where findings are perverse, not supported by material on record or ig noring the patent material, interference by the Court is not ruled out. Referenc e may be made to judgments of the Hon’ble Supreme Court in Bareily Electricity S upply Co. Ltd.- Vs.- Workman and others, (1971) 2 SCC 617 (Para-14), Bongaigaon Refinery & Petrochemicals Ltd. and others -Vs.- Girish Chandra Sarma, (2007) 7 S CC 206. Applying these parameters, no interference is called for with the findin g recorded by learned Single Judge that in view of firing by the officer first, firing by the writ petitioner was in exercise of right of private defence as hel d by the Criminal Court, on same evidence. Only charge proved was of verbal misb ehaviour. Once findings of misconduct were substantially modified, the sentence was required to be reviewed accordingly. Direction to this effect is not substit ution of sentence by the Court which is not normally done as held in P.D. Agarwa l (supra) relied upon on behalf of the appellant.

9. We, thus, do not find any ground to interfere with the view taken by the learned Single Judge.