Bateshwar Shah v. The State of Jharkhand

CORAM : HON’BLE MR. JUSTICE DR. S.N. PATHAK For the Petitioner :Mr. Satish Prasad, Advocate. For the Respondents :Mr. Gaurav Abhishek, AC to AG ------------- 05/ 23.06.2022 The petitioner has approached this Court for quashing the Letter Nos.01 & 68 dated 08.01.2020 issued by the respondent No.5 (Annexure-3) and affirmed by the respondent No.3 & 6, wherein the representation of the petitioner as Revision Appeal has been rejected by the respondents.

2. The case of the petitioner lies in a narrow compass. The petitioner initially joined as a Police Constable on 05.05.2005 and during his posting at the Special Branch, Jharkhand, a case has been registered against him on 05.07.2013 vide Railway Post (R.P.) Case No.36/2013 under Section 3 of the of the Railway Property (Unlawful Possession) Act. The said case was instituted on the basis of written report submitted by one ASI, RPF and the petitioner was arrested on the spot by the RPF Barwadih while stealing coal from the goods train at Barwadih 2 Railway Station and 600 Kg Coal, worth Rs.1200/- was seized from the possession of the petitioner. Thereafter, the petitioner was suspended vide memo dated

24.08.2013 for the said act and Headquarter of the petitioner was fixed at Special Branch, Ranchi and as such, charges were framed against him vide Memo No. 4151 dated 02.09.2013, which has also been served upon him for dereliction of duty and gross indiscipline and petitioner was directed to submit his explanation against the disciplinary proceeding within 15 days. Pursuant to the same, the petitioner submitted his explanation before the concerned authority, but the same was not found satisfactory and as such, the Superintendent of Police (Establishment), Special Branch vide Memo No. 4492 dated 23.09.20113 initiated a departmental proceeding against him for the charges of criminal act, dereliction of duty, indiscipline and for tarnishing the image of the department. It is further the case of the petitioner that Enquiry Officer conducted the enquiry, giving full opportunity of hearing and also witnesses were examined and concluded the enquiry with a finding that petitioner was absent from the duty without permission and during this period he was caught red handed by the Railway Protection Force for stealing coal from the Goods Train at barwadih Station and as such, enquiry officer found the petitioner guilty of the charges levelled against him and submitted the enquiry report to the Disciplinary Authority. The Disciplinary Authority agreed with the findings of enquiry report and issued second show cause notice with proposed punishment of dismissal from service. On receipt of the same, the petitioner replied, but the same was not found satisfactory and the Disciplinary Authority i.e., S.P. (Establishment), Special Branch vide Memo No. 1660 dated 16.04.2014 imposed punishment of dismissal from service. Against the order of dismissal, the petitioner preferred an appeal before the DIG, Special Branch, Jharkhand, which was also rejected and the order of dismissal was affirmed vide order dated 17.07.2014. Aggrieved by the same, the petitioner represented before the ADG, Special Branch, 3 Jharkhand, which was also rejected vide order dated 11.05.2017. It is specific case of the petitioner that later on, he was acquitted vide order dated 26.07.2017 passed in the Criminal Appeal No.21/2017 by District Sessions Judge, Latehar, Jharkhand. After acquittal, the petitioner represented before the respondents for reinstatement, but no order was passed and as such, he had earlier approached this Court by filing a writ petition being W.P.(S) No. 4201/2019, which was disposed of on 05.11.2019 with a direction upon the respondents to consider the case of the petitioner and pass a reasoned order, in accordance with law. In compliance thereof, the respondent No.5 vide impugned order 08.01.2020 rejected the representation /Revision Appeal of the petitioner based on the enquiry report. Aggrieved by the same, the petitioner has been constrained to knock the door of this Court, challenging the order dated 08.01.2020.

3. Mr. Satish Prasad, learned counsel for the petitioner submits that the impugned order dated 08.01.2020 is not tenable in the eyes of law on the ground that enquiry report is cryptic and the basis of dismissal from service was criminal case and since the petitioner has already been honorably acquitted in the criminal case, the respondents ought to have considered the honorable acquittal before passing the impugned order, rejecting the appeal/revision of the petitioner and as such, impugned orders are liable to be quashed and aside.

5. Per contra counter-affidavit has been filed. Mr. Gaurav Abhishek, learned counsel for the respondents vehemently opposes the contention of the learned counsel for the petitioner, submits that there is no illegality or infirmity in the impugned order as the petitioner was given full opportunity of hearing and before passing of order of dismissal, second show cause notice has also been served and there is no procedural latches on the part of the respondents for dismissing the petitioner from service. He further submits that quasi judicial proceeding and standard of proof in departmental 4 proceeding is different from the criminal proceeding as the charges in departmental proceeding & criminal proceeding are different. There is concurring finding by Appellate Authority as well as Revisional Authority. Learned counsel further argues that the petitioner is not honorably acquitted rather he has been given benefit of doubt.

6. Be that as it may, having gone through the rival submissions of the parties, this Court is of the considered view that the case of the petitioner needs consideration. Admittedly, the basis of dismissal from service was criminal case and as such, it was incumbent upon the respondents to consider the acquittal of the petitioner in criminal case and thereafter, pass a final order. The respondents have without considering the honorable acquittal of the petitioner, affirmed the order of dismissal. It is settled principles of law that in a quasi-judicial proceeding and standard of proof in departmental proceeding are different from the criminal proceeding as the charges in departmental proceeding and criminal proceeding are different. In the instant case, the matter is otherwise as the initiation of department proceeding itself was based on criminal case and in the said case, the petitioner has been acquitted and there is no iota of evidence to show that charges against the petitioner were proved in the criminal proceedings. The similar issue fell for consideration before this Court in case of Javed Shaukat Vs. State of Bihar, reported in 1999 SCC OnLine Pat 1088, it has been held thus:-

6. Before appreciating the rival contention of the parties, it would be useful to first consider whether the charges in the departmental proceeding and the criminal case were same and similar because that is the sheet-anchor of the case of the petitioner. Admittedly, the petitioner was implicated in a criminal case and after investigation the police submitted charge sheet under sections 363, 366A and 376/120B of the Penal Code, 1860. A copy of the memo of charge in the departmental proceeding no. 89/94 has been annexed as annexure 2 to the writ application. From perusal of the memo of charge it appears that the first charge against the petitioner is that he has committed offence under sections 363, 365A, 376/120B of the Penal Code as per Gumla PS case No. 231/93. The second charge is that because of the offence committed by the petitioner the image of the police becomes clouded. It is, therefore, clear that undoubtedly the charges levelled against the petitioner in the 5 departmental proceeding are exactly same and similar to that of the charges for which he was subjected to in the criminal case.

10. The only question, therefore, which falls for consideration is as to whether the order of dismissal can be sustained in law in respect of the charges for which the petitioner has been acquitted in a criminal case by the court of Sessions. As noticed above, the charges levelled against the petitioner in the criminal case are exactly the same and similar and based on same set of facts. This fact has not only been admitted by the Enquiry Officer but also the Disciplinary Authority. The Enquiry Officer categorically recorded in his enquiry report that it would not be possible and wise to take a decision when criminal case on the same charge is pending against the petitioner. It is also evident from the records that on the basis of the same set of evidence both the criminal court and the respondents came to a finding. The Enquiry Officer recorded his finding only on the basis of the statement of the victim girl recorded under section 164 Cr. P.C. while the Sessions court recorded its finding on the basis of the evidences of the witnesses examined before him including the victim girl. A copy of the judgment pronounced by the Sessions Judge, Gumla in S.T. No. 1/95 has been annexed as annexure 3 to the writ application, from perusal of the judgment it appears that the victim girl has totally denied the involvement of the accused in the crime by saying that the present accused, namely, the petitioner standing in the dock was not the same person. She further stated that the petitioner never misbehaved with her. The Sessions Judge has further recorded finding that the victim girl very specifically stated that her statement recorded before the police or the Magistrate was under influence of the police. In spite of that the Sessions Judge considered other evidences of the prosecution witnesses and came to a specific finding that the petitioner was not named in the F.I.R. and the prosecution failed to prove its case beyond all reasonable doubt. Accordingly, the petitioner was acquitted and discharged from the liabilities of his bail bonds.

11. In the case of Capt. M. Paul Anthony v. Bharat Gold Mines Ltd. (supra) exactly the same question came for consideration before the Apex Court as to whether the departmental proceedings and proceeding in a criminal court launched on the basis of the same set of facts, can be continued simultaneously. In the case before the Apex Court the delinquent was subjected inquiry and criminal proceeding simultaneously on the same and similar charges and on the same set of facts. The petitioner of that case was acquitted in the criminal case but inspite of that he was punished in a disciplinary proceeding. The Apex court, after considering a catena of decisions have come to the following conclusion:— to departmental “The conclusions which are deducible from various decisions of this court referred to above are:— (i) Departmental proceedings and proceedings in a criminal case can proceed simultaneously as there is no bar in their being conducted simultaneously, though separately. (ii) If the departmental proceedings and the criminal case are based on identical and similar set of facts and the charge in the criminal case against the delinquent employee is of a grave nature which involves complicated questions of law and fact, it would be 6 desirable to stay the departmental proceedings till the conclusion of the criminal case. (iii) Whether the nature of a charge in a criminal case is grave and whether complicated questions of facts and law are involved in that case, will depend upon the nature of offence, the nature of the case launched against the employee on the basis of evidence and materials collected against him during investigation or as reflected in the charge sheet. (iv) The factors mentioned at (ii) and (iii) above cannot be considered in isolation to stay the departmental proceedings but regard has to be given to the fact that the departmental proceedings cannot be unduly delayed. (v) If the criminal case does not proceed or its disposal is being unduly delayed, the departmental proceedings, even if they were stayed on account of the pendency of the criminal case, can be resumed and proceeded with so as to conclude them at any early date, so that if the employee is found not guilty his honour may be vindicated and in case he is found guilty, the administration may get rid of him at the earliest.”

12. Their lordships, therefore, held as under:— “There is yet another reason for discarding the, whole of the case of the respondents. As pointed out earlier the criminal case as also the departmental proceeding were based on identical set of facts, namely, the raid conducted at the appellant's residence and recovery of incriminating articles therefrom.” The findings recorded by the enquiry officer, a copy of which has been placed before us, indicate that the charges framed against the appellant were sought to be proved by police officers and panch witnesses who had raided the house of the appellant and had effected recovery. They were the only witnesses examined by the enquiry officer and the enquiry officer, relying upon their statements, came to the conclusion that the charges were established against the appellant. The same witnesses were examined in the criminal case but the court, on a consideration of the entire evidence, came to the conclusion that no search was conducted nor was any recovery made from the residence of the appellant. The whole case of the prosecution was thrown out and the appellant was acquitted. In this situation, therefore, where the appellant is acquitted by a judicial pronouncement with the finding that the raid and recovery at the residence of the appellant were not proved, it could be unjust, unfair and rather oppressive to allow the findings recorded at the ex parte departmental proceedings to stand.”

7. The said order was affirmed by Division Bench of this Court in case of State of Bihar v. Javed Shaukat, 2002 SCC OnLine Jhar 597, wherein it has been held thus: “5. The question relating to simultaneous continuance of departmental enquiry vis-a-vis criminal proceeding for same set of offence/charges fell in Capt. M., Paul for consideration before Anthony v. Bharat Gold Mines Ltd. reported in (1999) 3 SCC 679. In the said case the Court held that the scope of two proceedings being different, the Supreme Court 7 they can be continued independently. However, taking into consideration the fact that both the proceedings were for same charges based on same set of facts which were sought to be proved by the same evidence, the Supreme Court held that the finding recorded against the said appellant in the departmental enquiry could not be sustained, he having acquitted by a Competent Court of law on the same set of evidence.”

8. Since, the petitioner had earlier approached this Court in W.P.(S) No.4201/2019 and vide order dated 05.11.2019, specific direction was given upon the respondents to consider the case of the petitioner, taking into consideration the fact that the petitioner has been acquitted in criminal case, however, the respondents have rejected the case of the petitioner. From perusal of the impugned order dated

08.01.2020, it appears that the petitioner has been dismissed from the service on account of stealing the coal, however, the same was not proved in the criminal proceeding as the petitioner has been honorably acquitted and as such, there is no application of mind before passing the impugned order dated 08.01.2020.

9. The Hon’ble Apex Court in case of G.M. Tank v. State of Gujarat, reported in (2006) 5 SCC 446, it has been held thus:

31. In our opinion, such facts and evidence in the departmental as w ell as criminal proceedings were the same without there being any io ta of difference, the appellant should succeed. The distinction which i s usually proved between the departmental and criminal proceedings on the basis of the approach and burden of proof would not be appl icable in the instant case. Though the finding recorded in the domest ic enquiry was found to be valid by the courts below, when there wa s an honourable acquittal of the employee during the pendency of th e proceedings challenging the dismissal, the same requires to be take n note of and the decision in Paul Anthony case [(1999) 3 SCC 679 : 1999 SCC (L&S) 810] will apply. We, therefore, hold that the appe al filed by the appellant deserves to be allowed.

32. In the instant case, the appellant joined the respondent in the y ear 1953. He was suspended from service on 8-2-1979 and got subsis tence allowance of Rs 700 p.m. i.e. 50% of the salary. On 15-10-198 2 dismissal order was passed. The appellant had put in 26 years of s ervice with the respondent i.e. from 1953-1979. The appellant would now superannuate in February 1986. On the basis of the same charg es and the evidence, the department passed an order of dismissal on 21-10-1982 whereas the criminal court acquitted him on 30-1-2002. However, as the criminal court acquitted the appellant on 30-1-2002 and until such acquittal, there was no reason or ground to hold the d 8 ismissal to be erroneous, any relief monetarily can be only w.e.f. 30-1 -2002. But by then, the appellant had retired, therefore, we deem it p roper to set aside the order of dismissal without back wages. The app ellant would be entitled to pension.

10. As a cumulative effect of the aforesaid rules, guidelines and judicial pronouncement, the impugned order dated 08.01.2020 is not tenable in the eyes of law and the same is hereby quashed and set aside. As a result of quashment of the impugned order, the petitioner is directed to be reinstated in services with all consequential benefits.

11. Resultantly, writ petition stands allowed. Punit/- (Dr. S.N. Pathak, J.)