State Of Raj. & Ors vs Bahadur Ram on 11 November, 2009

                                        1

          D.B.CIVIL SPECIAL APPEAL NO.02448/2008

                     State of Rajasthan & Ors.
                                v.
                            Bahadur Ram

      Date of Judgment               ::      11th November, 2009

               HON'BLE MR.JUSTICE A.M.KAPADIA
              HON'BLE MR.JUSTICE GOVIND MATHUR


Mr. IS Pareek, Additional Government Counsel.
Mr. SK Poonia, for the respondent.
                         ....



            To       assail       validity,           correctness       and

propriety of the judgment dated 1.11.2007, passed by

learned Single Judge, this appeal is preferred. The

appeal is barred by limitation, thus, an application

under     Section     5     of    the       Limitation    Act     is    also

preferred.



            In brief, facts of the case are that the

respondent,      a    Constable       with      Rajasthan    Police     was

charged for an offence punishable under Sections 379

and 411 IPC. For the same allegations he was also

charged for committing a misconduct as defined under

Rajasthan Civil Services (Conduct) Rules, 1971. The

respondent accordingly faced criminal trial as well as

the   disciplinary         proceedings        under   Rule   16    of   the

Rajasthan    Civil        Services      (Classification,        Control    &

Appeal)     Rules,        1958.      The      disciplinary      authority

dismissed the respondent from service vide an order

dated 28.2.1994 and that came to be affirmed by the

appellate    authority        vide      order    dated   20.12.1994.       A
                                    2

review petition preferred before the Governor too came

to   be   rejected,      hence   the     respondent        preferred    a

petition for writ before this Court and that came to

be accepted by the judgment impugned. Learned Single

Judge, while setting aside the orders passed by the

disciplinary       authority,          appellate         authority    and

reviewing authority, held that the delinquent employee

was honourably exonerated from the charges levelled

against him, therefore, on basis of the same set of

evidence   he   could     have   not      been     penalised     through

disciplinary action.



           While       challenging      the     judgment     aforesaid,

contention of counsel for the appellant State is that

standard of proof required in              recording a finding of

conviction    in   a    criminal       case    and   in    departmental

proceedings are distinct and different. In a criminal

case it is essential to prove a charge beyond all

reasonable      doubt,      whereas           in     a     departmental

proceedings preponderance of probability would serve

the purpose and in the case in hand the disciplinary

authority on preponderance of probability reached at a

definite     conclusion,     thus,       that      was     not   at    all

warranting interference of this Court under Article

226 of the Constitution of India.



           We have examined the judgment impugned and

also record of the case.
                                      3

               It is well settled that standard of proof

required in recording a finding of conviction must be

of strong nature to the extent that a charge must be

proved    beyond      all    reasonable         doubts    whereas        in    a

departmental       proceeding      preponderance          of   probability

would serve the purpose. If in a criminal trial the

court concludes that the charge itself is not made

out,    the     incident     alleged       is    absolutely        false      or

concocted then the departmental adjudicating authority

must not pass any order contrary, but in the case

where a benefit of doubt is extended to the accused,

then while considering the allegation of misconduct

the departmental adjudicating authority can certainly

examine preponderance of probability and also reach at

a conclusion different to that of given by the court

of criminal jurisdiction.



               In the instant case learned Chief Judicial

Magistrate by his judgment dated 20.5.1995 not only

acquitted      the   respondent      but        also    gave   a   specific

finding that no case against him is made out for the

offences punishable under Sections 420, 120-B IPC. As

per    trial    court      there   was   no      evidence      against     the

accused (the respondent) to establish the allegation

of     forgery.      The     evidence      which        was    taken     into

consideration        by     the    trial        court    to    acquit         the

respondent        honourably       was     also        examined     by        the

disciplinary authority but he reached at a different

conclusion, though that was prior to passing of the
                                           4

order of acquittal by the trial court. Hon'ble Supreme

Court    in   G.M.Tak          v.    State      of     Gujarat     and    others,

reported      in     2006(5)        SCC       446,     held     that     where     a

honourable         acquittal        of     the       employee     is     made     by

competent authority, then this fact is required to be

taken    into      consideration           in    the       proceedings     giving

challenge to the dismissal made as a consequent to

domestic inquiry for the same charge. In the present

case    the     disciplinary             as     well       as   the    appellate

authority passed their orders prior to acquittal made

by     the    trial       court,          however,          before     reviewing

authority the respondent employee submitted a copy of

the judgment acquitting him and urged that his case is

required      to    be    considered          by     keeping      in   mind      the

findings      given      by     the      trial       court.     The    reviewing

authority, thus, should have considered the findings

given by the trial court which are as a matter of fact

based on same set of evidence on basis of which the

employee concerned was penalised with dismissal. The

reviewing          authority             instead           of    taking         into

consideration the judgment passed by the trial court

rejected the appeal simplicitor. Learned Single Judge

considered this aspect of the matter and quashed the

order    of     dismissal           as    that       was    contrary      to     the

findings      given      by     the      trial       court      acquitting       the

petitioner and also holding that no charge at all is

made out against him. On examination of record, we are

satisfied that           the    respondent was              acquitted     by     the

trial court honourably with a definite finding that no
                              5

charge of forgery is made out against him. It is also

noticed by us that the evidence available before the

trial court and the disciplinary authority during the

course of inquiry were same. As such, we also find no

justification   for     maintaining   dismissal   of   the

respondent employee.



          In view of whatever discussed above, we are

not at all inclined to condone the delay in filing the

appeal. Accordingly, the application as well as the

appeal are dismissed.



( GOVIND MATHUR ),J.                  ( A.M.KAPADIA ),J.

kkm/ps.