CIVIL WRIT PETITION NO.1689 OF 2009 :{ 1 }:
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
DATE OF DECISION: JULY 16, 2009
Khurshid Ahmad
.....Petitioner
VERSUS
State of Haryana and others
....Respondents
CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH
1. Whether Reporters of local papers may be allowed to see the judgement?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
PRESENT: Mr. Arvind Kumar, Advocate,
for the petitioner.
Mr. Yashwinder Singh, AAG, Haryana,
for the State.
****
RANJIT SINGH, J.
What would be the fate and effect of acquittal of an
employee in a criminal proceedings, who is dismissed from service
on the basis of the same very allegations by a Disciplinary Authority
after having been charge-sheeted and on the basis of a finding by
disciplinary enquiry? This question offenly is raised and has been
subject matter of adjudication one way or the other. The same
question is raised in the present writ petition by the petitioner, who
was a Constable working in the Police Department, where he has
joined on 7.11.2003.
CIVIL WRIT PETITION NO.1689 OF 2009 :{ 2 }:
On 6.8.2005, an FIR under Section 354, 376 (2)(g) IPC
and 3(xi) of the SC/ST Act was registered against the petitioner. This
FIR was lodged by one girl named Papli, who complained that she
was raped by 7 accused persons between 31.7.2005 and 5.6.2008.
The petitioner would term this FIR to be a false one and registered at
the behest of person who carried a grudge against his father and,
thus, to be a concocted story.
The petitioner was tried for this offences as mentioned in
the FIR and was acquitted on 14.2.2006. It appears that
simultaneously departmental proceedings were also initiated against
the petitioner. Statements of various witnesses were recorded,
including that of Papli Devi. As per the petitioner, all the witnesses,
except Papli Devi, were recorded in his absence. The petitioner
would further say that though none of the witnesses have supported
the case against him, yet the Enquiry Officer has held the charges
proved, on the basis of which, Superintendent of Police, Faridabad,
served a show cause notice on him on 2.11.2006. The petitioner
submitted detailed reply, pleading his false implication due to party
faction. He also pleaded the ground of his acquittal to show that
allegations against him were not established. Despite this,
Superintendent of Police, Faridabad, on 16.11.2006, passed an
order, dismissing the petitioner from service. The petitioner thereafter
filed an appeal before Inspector General of Police on 11.12.2006.
The same was dismissed on 9.4.2007. The petitioner then filed a
revision before Director General of Police, which has been dismissed
on 5.1.2009. He has, therefore, filed the present writ petition to
challenge the order of his dismissal.
CIVIL WRIT PETITION NO.1689 OF 2009 :{ 3 }:
Written statement has been filed by respondent No.4 on
behalf of all the respondents. Preliminary submissions are made to
state that the writ petition is not maintainable as departmental
enquiry has been held against the petitioner by following due process
of law. It is then disclosed that the petitioner is accused of raping
minor school going girl, for which an FIR as aforementioned was
registered against him. The fact that the petitioner was acquitted of
the charge is conceded but it is stated to be on the ground that
witnesses, including the prosecutrix turned hostile. It is maintained
that the departmental enquiry was conducted against the petitioner
on the ground that a criminal case had been registered against him.
The enquiry has concluded that all the charges against the petitioner
are proved. Therefore, a show cause notice was served upon the
petitioner and after considering his reply, the petitioner has been
dismissed. Respondents would say that the petitioner has committed
a gravest act of misconduct and hence, can not be retained in a
disciplined force and, thus, pleaded for dismissing the writ petition.
Learned counsel for the petitioner has placed strong
reliance on the provisions of Rule 16.3 of Punjab Police Rules, which
according to him regulates the action, which is to follow on a judicial
acquittal of a person in a criminal case. Rule 16.3 reads as under:-
“16.3 Action following on a judicial acquittal:-
(1)When a Police Officer has been tried and acquitted by
a criminal court he shall not be punished
departmentally on the same charge or on a different
charge upon the evidence cited in the criminal case
whether actually led or not, unless:-
CIVIL WRIT PETITION NO.1689 OF 2009 :{ 4 }:
(a) the criminal charge has failed on technical grounds;
or
(b) in the opinion of the Court or of the Superintendent
of Police, the prosecution witnesses have been won
over; or
(c) the Court has held in its judgment that an offence
was actually committed and that suspicion rests upon
the police officer concerned; or
(d) the evidence cited in the criminal case discloses
facts unconnected with the charge before the court
which justify departmental proceedings on a different
charge; or
(e) additional evidence admissible under rule 16.25 (1)
in departmental proceedings is available.
(2) Departmental proceedings admissible under sub-rule
(1) may be instituted against Lower Subordinates by
the order of the Superintendent of Police but may be
taken against Upper Subordinates only with the
sanction of the Deputy Inspector General of Police and
a police officer against whom such action is admissible
shall not be deemed to have been honourably acquitted
for the purpose of Rule 7.3 of the Civil Services Rules
(Punjab), Volume I, Part I.”
The counsel would, thus, contend that when a police
officer has been tried and acquitted by a criminal Court, he is not to
be punished departmentally on the same charge or on a different
charge upon the evidence cited in the criminal case, whether actually
CIVIL WRIT PETITION NO.1689 OF 2009 :{ 5 }:led or not. Ofcourse, this is subject to exception as contained above
in Rule 16.3 as reproduced above. Taking support of this Rule, the
counsel contends that departmental proceedings held against the
petitioner are without jurisdiction.
The petitioner has been charge sheeted in the
departmental proceedings for the same allegations for which he
faced a criminal trial and the department has relied upon the same
witnesses who had earlier deposed before the Special Judge,
Gurgaon. Besides this, the counsel would also plead that there is no
evidence led even in the departmental proceedings to substantiate
the charge and the finding against the petitioner is on the basis of no
evidence at all. This plea is based on the fact that even the
prosecutrix Papli had not identified the petitioner while giving her
statement before the departmental enquiry and what all she stated
can not be taken on record against the petitioner to attributed any
allegation against the petitioner. In support the counsel for the
petitioner has also referred to observations made in the case of
Capt. M.Paul Anthony Vs. Bharat Gold Mines Ltd. And another,
AIR 1999 Supreme Court 1416.
Mr.Yashwinder Singh, Assistant Advocate General,
appearing for the State, however, would support the order passed by
the respondents. He would contend that provisions of Rule 16.3 itself
carves out an exception, when departmental proceedings can be
held against an employee, which according to the State counsel,
would be attracted the facts of the present case. State counsel
primarily has relied upon Rule 16.3 (1)(d), which provides that where
the Superintendent of Police is of the view that the prosecution
CIVIL WRIT PETITION NO.1689 OF 2009 :{ 6 }:witnesses have been won over, then the provisions of Rule 16.3
would not come to the rescue of the employee.
Thus, it is now to be seen if the provisions of Rule 16.3
would be applicable to the facts of the present case or not or any
exception would apply in the case. The charge sheet for which the
petitioner was tried and acquitted and the allegations for which the
departmental proceedings were held would show that both the
proceedings were for the same very allegations and was sought to be
supported on the basis of the same evidence. The petitioner has
placed on record a copy of the judgment passed by Special Judge,
Gurgaon, while acquitting him. A perusal thereof would show that
even the prosecutrix had turned hostile and refused to even identify
the accused, including the petitioner. In fact, she gave evidence
specifically stating that the accused persons were not those persons
who had sexually assaulted her. She was accordingly declared
hostile and was subject to cross-examination by the Public
Prosecutor. Her father, though appeared as a witness. but did not
state much against the petitioner. Jai Narain (PW3) also turned
hostile. He was the one to whom Papli, as per the prosecution, had
narrated the story. He categorically stated that the prosecutrix had
not narrated anything to him, when she met him.
Can on the basis of the evidence, it be stated that the
witnesses were won over to bring the case within the purview of
exception carved out in Rule 16.3? It is normally understood that the
witnesses which are won over are given up by the prosecution and
not produced in the Court. A witness, who is produced in the Court
by prosecution but does not support its case, is a witness which is
CIVIL WRIT PETITION NO.1689 OF 2009 :{ 7 }:termed that he or she has turned hostile. The law permits such
witness to be asked a question by the party producing him, which are
generally put by opposing party. The evidence of a witness who has
turned hostile can not be discarded merely on that ground in entirety
and this evidence can still be relied upon if otherwise found
trustworthy. Thus, it would be difficult to brand a witness, who turns
hostile, to be a witness who is won over. Such witness is a witness,
who is suppressing the truth and to elicit truth, an opportunity is given
to opposing party to address question in the nature of cross-
examination.
In any event, this is not even the ground taken by
Superintendent of Police, respondent No.4, to ignore the acquittal of
the petitioner by Criminal Court. This part of the submission and the
effect of Rule 16.3 appears to have escaped the notice of respondent
No.4 while passing the impugned order. Respondent No.4 has
noticed as one of the contention raised by the petitioner that he was
acquitted by the Criminal Court. This, in the context of Rule 16.3, was
required to be considered but has been ignored.
Respondent No.4 is also not justified in brushing aside
the plea of the petitioner that Papli, Jai Narain and Kamal Singh did
not support the charge against him. A perusal of statement made by
Papli, which is reproduced in the report of the Enquiry Officer would
show that she did not even name the petitioner, while giving her
version before the Enquiry Officer. Respondent No.4 has ignored this
aspect simply and has relied upon the version contained in the FIR,
which Papli had recorded and admitted before the Enquiry Officer
that she had recorded the FIR. Will it be legally permissible to rely
CIVIL WRIT PETITION NO.1689 OF 2009 :{ 8 }:upon contents of an FIR, when the same witness is subsequently
examined and has given evidence on oath, resiling from the version
in the FIR to give different version before the Court and even before
the Enquiry Officer. The sworn statement is totally contrary to what is
recorded in the FIR? This approach, to rely on the version in the FIR
and to ignore the version given before Enquiry Officer, in my view,
would not be a legal and fair approach. Respondent No.4 apparently
has got swayed by the nature of allegations made against the
petitioner and has ignored a judicial verdict of acquittal standing in
favour of the petitioner. In this context, respondent No.4 was also
required to see the effect of Rule 16.3, which would go to affect his
jurisdiction to decide the issue in this case. Rule 16.3 would come to
the rescue of the petitioner, unless respondent No.4 was to take a
view that any of the exceptions contained in the Rule would be
attracted to the facts of the case. There is no indication in the order if
respondent No.4 has taken this aspect into consideration. That is not
even observed or noticed in the impugned order. In the appeal filed
by the petitioner, he has raised a specific plea on the basis of Rule
16.3 and the fact that the petitioner has been falsely implicated in this
case. This again did not receive a proper attention either by the
Appellate Authority or the Authority which had earlier passed the
order of dismissal. The Appellate Authority has again not considered
the plea of the petitioner as raised on the basis of Rule 16.3. A mere
mention is made in the order that the prosecutrix did not support the
charge against the petitioner as she was won over. This is so stated
without any basis.
The observations made Hon’ble Supreme Court in the
CIVIL WRIT PETITION NO.1689 OF 2009 :{ 9 }:case of Capt. M.Paul Anthony (Supra) would also come to the
rescue of the petitioner. In this case, it has been held that where
departmental proceedings in a criminal case are based on identical
set of facts and evidence in both the proceedings is common and
where the employee is acquitted in the criminal case, then said order
of acquittal can conclude the departmental proceedings. The order of
dismissal in Capt. M.Paul Anthony’s case (Supra), was passed
before the decision of the criminal case but still it was held liable to
be set-aside. The case of the petitioner appears to be rather placed
on better footing as he has earned his acquittal in the criminal trial
before the order of dismissal was made. In a recent decision of the
Hon’ble Supreme Court in the case of The Managing Director,
State Bank of Hyderabad and another Vs. P.Kata Rao, AIR 2008
Supreme Court 2146, has held that when criminal prosecution and
disciplinary proceedings are initiated simultaneously on the same
facts, then the punishment of dismissal imposed in the disciplinary
proceedings are improper when a person is acquitted in the criminal
case. While so holding, the Supreme Court has made reference to
various earlier decisions, including in the case of Capt. M.Paul
Anthony (supra) and has held as under:-
“We are not unmindful of different principles laid down by
this court from time to time. The approach that the court’s
jurisdiction is unlimited although had not found favour with
some Benches, the applicability of the doctrine of
proportionality, however, had not been deviated from.
The legal principle enunciated to the effect that on the
same set of facts the delinquent shall not be proceeded in
CIVIL WRIT PETITION NO.1689 OF 2009 :{ 10 }:a departmental proceedings and in a criminal case
simultaneously, has, however, been deviated from. The
dicta of this Court in Capt. M.Paul Anthony Vs. Bharat
Gold Mines Ltd. And another, 1999(2) SCT 660,
however, remains unshaken although the applicability
thereof had been found to be dependent on the fact
situation obtaining in each case.”
Reference may also be made to the case of G.M.Tank
Vs. State of Gujarat and others, 2006 (5) SCC 446, where it is held
as under:-
“The judgments relied on by the learned counsel
appearing for the respondents are distinguishable on
facts and on law. In this case, the departmental
proceedings and the criminal case are based on identical
and similar set of facts and 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 the case
launched against the appellant on the basis of evidence
and material collected against him during enquiry and
investigation and as reflected in the charge-sheet, factors
mentioned are one and the same. In other words,
charges, evidence, witnesses and circumstances are one
and the same. In the present case, criminal and
departmental proceedings have already noticed or
granted on the same set of facts, namely, raid conducted
CIVIL WRIT PETITION NO.1689 OF 2009 :{ 11 }:at the appellant’s residence, recovery of articles
therefrom. The Investigating Officer Mr.V.B.Raval and
other departmental witnesses were the only witnesses
examined by the enquiry officer who by relying upon their
statement came to the conclusion that the charges were
established against the appellant. The same witnesses
were examined in the criminal case and the criminal court
on the examination came to the conclusion that the
prosecution has not proved the guilt alleged against the
appellant beyond any reasonable doubt and acquitted the
appellant by its judicial pronouncement with the finding
that the charge has not been proved. It is also to be
noticed that the judicial pronouncement was made after a
regular trial and on hot contest. Under these
circumstances, it would be unjust and unfair and rather
oppressive to allow the findings recorded in the
departmental proceedings to stand.
In our opinion, such facts and evidence in the
departmental as well as criminal proceedings were the
same without there being any iota of difference, the
appellant should succeed. The distinction which is usually
proved between the departmental and criminal
proceedings on the basis of the approach and burden of
proof would not be applicable in the instant case. Though
the finding recorded i the domestic enquiry was found to
be valid by the courts below, when there was an
honourable acquittal of the employee during the
CIVIL WRIT PETITION NO.1689 OF 2009 :{ 12 }:pendency of the proceedings challenging the dismissal,
the same requires to be taken note of and the decision in
Paul Anthony case will apply. We, therefore, hold that the
appeal filed by the appellant deserves to be allowed.”
The sweep of Rule 16.3 of the Rules came up for
consideration before a Division Bench of this Court, though not
directly in a case titled Sukhjit Singh Khaira Vs. State of Punjab
and others, 2005 (1) SCT 50. While discussing the ratio of law laid
down in another case titled Balwant Singh, Ex.Constable Vs.
Inspector General of Police and others, 1983 (1) SLJ 176. The
Division Bench in the case of Sukhjit Singh Khaira (supra) observed
as under:-
“In the case of Balwant Singh (supra), this Court was
dealing with a case where no departmental action could
have been taken against the petitioner in view of the
provisions of Rule 16.3 of the Punjab Police Rules as he
had been duly acquitted of the charge by the criminal
court. It was admitted in the written statement filed on
behalf of the State of Punjab that allegations contained in
the charge-sheet and the criminal charge were identical.
Subsequently, however, it was sought to be argued that
the charge before the departmental authority related only
to absence from duty. This plea was rejected by the High
Court. It was held that the petitioner was entitled to the
benefit of Rule 16.3 of the Police Rules. The prosecution,
despite being given 6/7 opportunities to lead evidence
CIVIL WRIT PETITION NO.1689 OF 2009 :{ 13 }:had failed to do so. The criminal court, therefore, had no
alternative, but to record the findings that the charge
against the petitioner had not been substantiated and
acquitted him of the charge. It was argued on behalf of
the State of Punjab that the petitioner would not be
entitled to the protection of rule 16.3 as the criminal
charge had failed on technical ground. In these
circumstances, it was held by the High Court as under:-
“5……An acquittal to be an acquittal on technical ground
would be one where the evidence had substantiated the
charge, but the accused had to be acquitted on account
of some legal lacuna. Such is not the position here.”
Rule 16.3 of the Punjab Police Rules provides that when
a Police Officer has been tried and acquitted by a criminal
Court, he shall not be punished departmentally on the
same charge or on a different charge upon the evidence
cited in the criminal case……..”
As can be noticed, Constable Balwant Singh was
acquitted of the criminal charge, when the prosecution despite 6/7
opportunities failed to lead evidence. On this basis, it was sought to
be argued that the criminal charge had failed on technical ground.
The Court in Constable Balwant Singh’s case (supra) in this regard
rightly observed that acquittal on technical ground would be one
where the evidence had substantiated the charge but the accused
person is acquitted or let off on account of some legal lacuna.
Undoubtedly, the Departmental proceedings in the
criminal case against the petitioner are based on identical and similar
CIVIL WRIT PETITION NO.1689 OF 2009 :{ 14 }:
set of facts and the charge in a departmental proceedings against
the petitioner and the one before criminal trial are also the same. The
nature of evidence led in the criminal trial and before the
departmental proceedings is also almost identical. The witnesses
from the Department, who were examined in addition to other
witnesses who had appeared to depose facts, did not disclose
anything regarding the factual issues involved in this case. Thus, it
can be said that the nature of case launched against the petitioner in
a criminal trial and the material which has come on record against
him during enquiry, investigation etc. and the disciplinary
proceedings are the same. On appreciation of the evidence given by
same set of witnesses, the criminal Court had come to the conclusion
that the prosecution was not able to prove the guilt of the petitioner
and accordingly acquitted him by judicial pronouncement. Finding is
that the charge against the petitioner was not proved. This judicial
pronouncement is after a regular trial, though may not have been as
hotly contested as the criminal trial generally are because the
witnesses in this case had resiled and were declared hostile. In any
event, the petitioner has earned acquittal in a criminal trial and it
would be unjust and unfair and rather oppressive to dismiss him
from the service for the same allegation on same set of witnesses. In
G.M.Tank’s case (supra), the findings recorded in the departmental
proceedings were not allowed to stand on the basis of a finding
returned by Criminal Court subsequent to the finding in the
departmental proceedings. Here the finding in the Criminal Court was
prior to the departmental proceedings and its findings. It can also not
be said that any different version has been given in the departmental
CIVIL WRIT PETITION NO.1689 OF 2009 :{ 15 }:
proceedings by the same witnesses, who were examined by the
Criminal Court to justify the different finding returned by the Enquiry
Officer. The evidence in the criminal trial and the version in the
departmental proceedings being same, there being no difference,
the petitioner can not be made to suffer a different findings, which
are not even supported by the evidence led in the departmental
proceedings. As observed by the Hon’ble Supreme Court, the usual
distinction between the standard of proof required in the
departmental proceedings and the criminal trial, considering the
nature of burden of proof in each case, would not be applicable in
this case as the main witness has not linked the petitioner with the
allegations alleged against him. There is, thus, a clear violation of the
rule position seen as contained in Rule 16.3 of the Rules.
I have given my anxious consideration to the facts and
circumstances of this case to see if the order of dismissal passed
against the petitioner could be sustained or justified on any of the
exceptions contained in Rule 16.3. I have not been able to convince
myself that any of the exception would be attracted to the facts of this
case and especially the plea which is being raised that acquittal of
the petitioner in the criminal trial was on account of the fact that the
witnesses were won over. This aspect has also been considered and
dealt with in detail above, despite the fact that this is not even the
justification advanced by respondent No.4 while passing the
impugned order. It appears to be an after thought and an attempt at
this stage to justify the order of dismissal. The prosecutrix did not
support the case of prosecution while appearing before the Enquiry
Officer but still the Enquiry Officer has held against the petitioner and
CIVIL WRIT PETITION NO.1689 OF 2009 :{ 16 }:
respondent No.4 has passed an order dismissing the petitioner from
service. It can be said that the impugned order passed against the
petitioner is not based on any material or evidence. In a way, it is a
case of no evidence. These findings of fact recorded by Enquiry
Officer can, thus, be termed as perverse and based on no evidence.
The impugned order, dismissing the petitioner from
service, thus, can not be sustained and the same is set-aside. The
Appellate order as well as the revisional orders are also set-aside.
The writ petition is accordingly allowed. There shall, however, be no
order as to costs.
July 16, 2009 ( RANJIT SINGH ) khurmi JUDGE