ASHOK KUMAR UPADHAYA vs UNION OF INDIA

D.N. Patel, A.C.J

This interlocutory application has been preferred under Section 5 of the Limitation Act for condonation of delay of 20 days in preferring this Letters

Patent Appeal.

Having heard learned counsels for both the sides and looking to the reasons stated in this interlocutory application, especially in paragraph nos.04 to

09, there are reasonable reasons for condonation of delay. We therefore, condone the delay in preferring this Letters Patent Appeal.

Accordingly, I.A. No. 593 of 2018 is allowed and disposed of. L.P.A. No.378 of 2017 1. This Letters Patent Appeal has been preferred by the

original petitioner being aggrieved and feeling dissatisfied by the judgment and order delivered by the learned Single Judge in writ petition being W.P.

(S) No.897 of 2006, judgment dated 16.05.2017 whereby, the petition preferred by this appellant was dismissed and the order passed by the

disciplinary authority of the dismissal dated 21.04.2003 was confirmed. There is a charge against this appellant â€" delinquent, that there is gross â€

misconduct committed by the delinquent and thereby there is dereliction of duty, as he has caused two rounds of firing upon his superior officer, and

his order of dismissal was confirmed by the disciplinary appellate authority vide order dated 16.08.2003, and further it was confirmed in the revision by

the revisional authority by order dated 10.05.2004. These orders were under challenge by this appellant (original petitioner) only on the ground thatÂ

there was acquittal in Sessions Case No.666 of 2000 vide order of acquittal dated 17.11.2005 from the charges under Section 307 of the Indian

Penal Code and under Section 27 of the Arms Act.

Arguments canvassed by the counsel for the appellant (original petitioner) :

I. Counsel appearing for the appellant (original petitioner) has submitted that the learned Single Judge has not properly appreciated the fact that there

is honourable acquittal of the appellant by the Sessions Court in Sessions Case No.666 of 2000. The charges levelled against this appellant in a

departmental proceedings and on criminal side are the same charges and once there is honourable acquittal, the order of dismissal, passed by the

respondents dated 21.04.2003, deserves to be quashed and set aside.

II. It is also submitted by the counsel for the appellant that the judgment upon which the reliance is placed by the respondents, especially (2013) 1 SCC

598 is based upon different facts, because there was no honourable acquittal in that case whereas in the facts of the present case there is honourable

acquittal of this appellant from the charges under Section 307 of the Indian Penal Code as well as from the charges under Section 27 of the Arms

Act. These aspects of the matters have not been properly appreciated by the learned Single Judge while dismissing the writ petition preferred by

this appellant.

III. Learned counsel for the appellant has submitted that on civil side as well as on criminal side there are same set of facts. Counsel for the

appellant has relied on the following decisions:

(a) (1999) 3 SCC 679;

(b) (2006) 5 SCC 446;

(c) (2015) 2 LAB. IC. 2054.

On the basis of the aforesaid decisions, it is submitted that if there is honourable acquittal from the criminal charges, the disciplinary authority's order

ought to have been quashed by the learned Single Judge.

Arguments canvassed by the counsel for the respondents â€" Union of India:

I. Counsel for the respondents â€" Assistant Solicitor General of India has submitted that gross misconduct has been committed by this appellant â€

delinquent, who was serving with the Central Industrial Security Force as a Constable. That when he was on duty, he opened fire upon his superior

from the rifle given by the Union of India. In fact there were two rounds of firing upon one Mr. M. L. Meena, Inspector, C.I.S.F., and upon his report

this appellant was suspended on 27.02.2000 because of his misconduct on the same date. Thereafter, Enquiry Officer was appointed, charge-sheet

was given and during the course of enquiry several witnesses were examined. Enquiry Officer has given its report on 29.03.2003. Charges were held

as proved and on the basis of the Enquiry Officer's report, disciplinary authority has passed an order of dismissal of this appellant vide order dated

21.04.2003. Against this order, departmental appeal was preferred which was dismissed vide order dated 16.08.2003, against which, revision

application was also preferred by this appellant which was dismissed by the revisional authority vide order dated 10.05.2004.

II. It is further submitted by the counsel for the respondents that in Sessions Case No.666 of 2000 acquittal order was passed by the learned trial court

dated 17.11.2005 in which P.W. - 1, P.W. - 8, P.W. - 9, and P.W. - 10 have not supported the case of the prosecution. This is how the acquittal order

has been passed.

III. It is also submitted by the counsel for the respondents that even if there is acquittal by the learned trial court in a sessions case, still departmental

proceedings can be conducted by the respondents. In a criminal proceedings charges are to be proved beyond reasonable doubt, whereas in the

departmental proceedings charges are to be proved on the basis of the preponderance of the probabilities. In the facts of the present case, Enquiry

Officer has given a report much earlier than the date of the acquittal.

IV. Counsel for the respondents has relied upon the following decisions :-

(a) (2013) 1 SCC 598; (b) (2018) 1 SCC 797.

On the basis of the aforesaid decisions, it is submitted by the Assistant Solicitor General of India that even if there is acquittal by the learned trial court

from the criminal charges, disciplinary proceedings can be initiated and the disciplinary action can always be taken against such delinquent.

 Reasons :  Â

Having heard counsels for both the sides and looking to the facts and circumstances of the case, we see no reason to entertain this Letters Patent

Appeal mainly for the following facts and reasons :-

I. This appellant is the original petitioner who was employed as a Constable in the Central Industrial Security Force. He was also provided rifle for the

protection of the public at large and not for firing upon his superior officer.

II. On 27.02.2000, when this appellant was on election duty, he opened fire upon his superior one Mr. M. L. Meena, Inspector, C.I.S.F. There were

two rounds of firing upon him. Immediately, this appellant was suspended from the service. Report was made by Mr. M. L. Meena, Inspector, upon

whom firing had taken place. III. On the basis of the report given by Mr. Meena, charge-sheet was issued, Enquiry Officer was appointed and detail

enquiry was conducted. Several witnesses were examined. On the basis of the evidence before the departmental proceedings, Enquiry Officer gave a

report on 29.03.2003 in which charges levelled against this appellant have been proved.

IV. Looking to the charges levelled on the civil side and on the criminal side against this appellant, are different. On the criminal side, charges were

levelled against this appellant under Section 307 of the Indian Penal Code and under Section 27 of the Arms Act, whereas, on civil side, there is

charge levelled against this appellant to the effect that upon behaviour of this appellant â€" delinquent there is a gross misconduct, dereliction of duty

and his behaviour is indisciplined.

V. It ought to be kept in mind that even if there is honourable acquittal by the competent trial court in a criminal case, there always, power vested with

the respondents to put charge on civil side upon the delinquent as to gross indiscipline, gross dereliction of duty, etc. On the criminal side offence is to

be proved by the prosecution beyond reasonable doubt, whereas, in the departmental proceedings, the charges cane be proved on the basis of the

preponderance of probabilities.

VI. In the facts of the present case adequate opportunity of being heard was given to the appellant while holding departmental proceedings, and

ultimately, the Enquiry Officer came to a conclusion that charges levelled against this appellant have been proved. His report is dated 29.03.2003. On

the basis of this report, disciplinary authority has taken action on 21.04.2003 and an order of dismissal was passed which was challenged by this

appellant in a departmental appeal, and the appeal preferred by this appellant was also dismissed vide order dated 16.08.2003. Even the revision

application preferred by this appellant was dismissed vide order dated 10.05.2004. Thus, there is no procedural lacuna in holding the departmental

proceedings. Adequate opportunity of being heard has also been given to this appellant.

VII. It appears that this appellant was working with the disciplined force and rifle was not given to him, to open fire, upon the Inspector of the C.I.S.F.

Two rounds of fire was sufficient to dismiss this appellant. Punishment inflicted upon this appellant cannot be labelled as unreasonable, nor the same is

unreasonably excessive nor it is shockingly disproportionate.

VIII. Much has been argued by the counsel for the appellant that there is honourable acquittal in Sessions Case No.666 of 2000, and hence, order of

dismissal passed by the disciplinary authority dated 21.04.2003, deserves to be quashed and set aside. We are not accepting this contention mainly for

the reasons that :(a) charges on civil side and charges on criminal side are totally different. On criminal side the charge is under Section 307 of the

Indian Penal Code, whereas, on civil side in departmental proceedings, the charge is that the delinquent has committed gross â€" misconduct, there is

gross-indiscipline, there is gross â€" dereliction in performance of duty.

(b) standard of proof on criminal side is much strict, i.e., offence ought to be proved beyond reasonable doubt, whereas on civil side, in departmental

proceeding, charges can be proved on the basis of preponderance of probabilities;

(c) we have perused the acquittal order passed in Sessions Case No.666 of 2000. P.W. - 1, P.W. - 8, P.W. -

9 and P.W. - 10, have not supported the case of the prosecution. Thus, there is no honourable acquittal of this appellant â€" delinquent. Moreover, the

1st Additional Sessions Judge, Nalanda, has also observed that as there is no injury, there is no offence under Section 307 of the Indian Penal Code.

This is the misconception of law in the mind of the 1st Additional Sessions Judge. Perhaps, there is total departure from the basic criminal

jurisprudence. State has not preferred appeal. This is how the accused are enjoying the order of acquittal.

 (d) The disciplinary authority's order dated 21.04.2003 is absolutely based on the Enquiry Officer's report wherein several witnesses have been

examined. Adequate opportunity of being heard was given to the delinquent. The appeal and revision both were later on dismissed.

IX. It has been held by the Hon'ble Supreme Court in the case of Divisional Controller, Karnataka State Road Transport Corporation Vs. M. G. Vittal

Rao, reported in (2012) 1 SCC 442, in paragraph nos.11 & 24, which read as under :-

“11. The question of considering reinstatement after decision of acquittal or discharge by a competent criminal court arises only and only if the

dismissal from services was based on conviction by the criminal court in view of the provisions of Article 311(2)(b) [sic Article 311(2) second proviso

(a)] of the Constitution of India, or analogous provisions in the statutory rules applicable in a case. In a case where enquiry has been held

independently of the criminal proceedings, acquittal in a criminal court is of no help. The law is otherwise. Even if a person stood acquitted by a

criminal court, domestic enquiry can be held, the reason being that the standard of proof required in a domestic enquiry and that in a criminal case are

altogether different. In a criminal case, standard of proof required is beyond reasonable doubt while in a domestic enquiry it is the preponderance of

probabilities that constitutes the test to be applied.

Thus, there can be no doubt regarding the settled legal proposition that as the standard of proof in both the proceedings is quite different, and the

termination is not based on mere conviction of an employee in a criminal case, the acquittal of the employee in a criminal case cannot be the basis of

taking away the effect of departmental proceedings. Nor can such an action of the department be termed as double jeopardy. The judgment of this

Court in Capt. M. Paul Anthony does not lay down the law of universal application. Facts, charges and nature of evidence, etc. involved in an

individual case would determine as to whether decision of acquittal would have any bearing on the findings recorded in the domestic enquiry.â€

        (Emphasis supplied)

X. It has been held by the Hon'ble Supreme Court in the case of Deputy Inspector General of Police Vs. S. Samuthiram, reported in (2013) 1 SCC

598, in paragraph nos.23, 24, 25 & 26, which read as under :-

“23. We are of the view that the mere acquittal of an employee by a criminal court has no impact on the disciplinary proceedings initiated by the

Department. The respondent, it may be noted, is a member of a disciplined force and non-examination of two key witnesses before the criminal court

that is Adiyodi and Peter, in our view, was a serious flaw in the conduct of the criminal case by the prosecution. Considering the facts and

circumstances of the case, the possibility of winning over PWs 1 and 2 in the criminal case cannot be ruled out. We fail to see, why the prosecution

had not examined Head Constable Adiyodi (No. 1368) and Peter (No. 1079) of Tenkasi Police Station. It was these two Head Constables who took

the respondent from the scene of occurrence along with PWs 1 and 2, husband and wife, to Tenkasi Police Station and it is in their presence that the

complaint was registered. In fact, the criminal court has also opined that the signature of PW 1 (complainant husband) is found in Ext. P-1 complaint.

Further, the doctor, PW 8 has also clearly stated before the enquiry officer that the respondent was under the influence of liquor and that he had

refused to undergo blood and urine tests. That being the factual situation, we are of the view that the respondent was not honourably acquitted by the

criminal court, but only due to the fact that PW 1 and PW 2 turned hostile and other prosecution witnesses were not examined.

The meaning of the expression “honourable acquittal†came up for consideration before this Court in RBI v. Bhopal Singh Panchal. In that

case, this Court has considered the impact of Regulation 46(4) dealing with honourable acquittal by a criminal court on the disciplinary proceedings. In

that context, this Court held that the mere acquittal does not entitle an employee to reinstatement in service, the acquittal, it was held, has to be

honourable. The expressions “honourable acquittalâ€, “acquitted of blameâ€, “fully exonerated†are unknown to the Code of Criminal

Procedure or the Penal Code, which are coined by judicial pronouncements. It is difficult to define precisely what is meant by the expression

“honourably acquittedâ€. When the accused is acquitted after full consideration of prosecution evidence and that the prosecution had miserably

failed to prove the charges levelled against the accused, it can possibly be said that the accused was honourably acquitted.

In R.P. Kapur v. Union of India it was held that even in the case of acquittal, departmental proceedings may follow where the acquittal is other

than honourable. In State of Assam v. Raghava Rajgopalachari this Court quoted with approval the views expressed by Lord Williams, J. in Robert

Stuart Wauchope v. Emperor which is as follows: (Raghava case, SLR p. 47, para 8)

“8. … ‘The expression “honourably acquitted†is one which is unknown to courts of justice. Apparently it is a form of order used in courts

martial and other extrajudicial tribunals. We said in our judgment that we accepted the explanation given by the appellant, believed it to be true and

considered that it ought to have been accepted by the government authorities and by the Magistrate. Further, we decided that the appellant had not

misappropriated the monies referred to in the charge. It is thus clear that the effect of our judgment was that the appellant was acquitted as fully and

completely as it was possible for him to be acquitted. Presumably, this is equivalent to what government authorities term “honourably

acquittedâ€​.’â€​ (Robert Stuart case, ILR pp. 188-89)

As we have already indicated, in the absence of any provision in the service rules for reinstatement, if an employee is honourably acquitted by a

criminal court, no right is conferred on the employee to claim any benefit including reinstatement. Reason is that the standard of proof required for

holding a person guilty by a criminal court and the enquiry conducted by way of disciplinary proceeding is entirely different. In a criminal case, the

onus of establishing the guilt of the accused is on the prosecution and if it fails to establish the guilt beyond reasonable doubt, the accused is assumed

to be innocent. It is settled law that the strict burden of proof required to establish guilt in a criminal court is not required in a disciplinary proceedings

and preponderance of probabilities is sufficient. There may be cases where a person is acquitted for technical reasons or the prosecution giving up

other witnesses since few of the other witnesses turned hostile, etc. In the case on hand the prosecution did not take steps to examine many of the

crucial witnesses on the ground that the complainant and his wife turned hostile. The court, therefore, acquitted the accused giving the benefit of

doubt. We are not prepared to say that in the instant case, the respondent was honourably acquitted by the criminal court and even if it is so, he is not

entitled to claim reinstatement since the Tamil Nadu Service Rules do not provide so.â€​    (Emphasis supplied)

XI. It has been held by the Hon'ble Supreme Court in the case of Union of India & Anr. Vs. Purushottam, reported in (2015) 3 SCC 779, in

paragraph nos.14, 14.1, 14.2 & 14.3, which read as under:-

“14. In R.P. Kapur v. Union of India the question before the Constitution Bench was that the petitioner therein had been suspended owing to the

pendency of criminal proceedings against him which was challenged on the anvil of Article 314 of the Constitution. Thus, this decision is not of much

relevance for the resolution of the legal nodus before us, save for the observations that (AIR p. 792, para 9) “if the trial of the criminal charge

results in conviction, disciplinary proceedings are bound to follow against the public servant so convicted, even in case of acquittal proceedings may

follow where the acquittal is other than honourableâ€. However, on this aspect of the law we need go no further than the recent decision in Inspector

General of Police v. S. Samuthiram, since it contains a comprehensive discourse on all the prominent precedents. This Court has concluded, and we

respectfully think correctly, that acquittal of an employee by a criminal court would not automatically and conclusively impact departmental

proceedings:

14.1. Firstly, this is because of the disparate degrees of proof in the two viz. beyond reasonable doubt in criminal prosecution contrasted by

preponderant proof in civil or departmental enquiries.

14.2. Secondly, criminal prosecution is not within the control of the department concerned and acquittal could be the consequence of shoddy

investigation or slovenly assimilation of evidence, or lackadaisical if not collusive conduct of the trial, etc.

14.3. Thirdly, an acquittal in a criminal prosecution may preclude a contrary conclusion in a departmental enquiry if the former is a positive decision in

contradistinction to a passive verdict which may be predicated on technical infirmities. In other words, the criminal court must conclude that the

accused is innocent and not merely conclude that he has not been proved to be guilty beyond reasonable doubt.†        (Emphasis

supplied)

XII. It has been held by the Hon'ble Supreme Court in the case of Management of Bharat Heavy Electricals Limited Vs. M. Mani, reported in (2018)

1 SCC 285, in paragraph nos.20, 21, 22 & 33, which read as under :-

“20. Similarly, in our considered view, the Labour Court failed to see that the criminal proceedings and departmental proceedings are two separate

proceedings in law. One is initiated by the State against the delinquent employees in criminal court and other i.e. departmental enquiry which is

initiated by the employer under the Labour/Service Laws/Rules, against the delinquent employees.

The Labour Court should have seen that the dismissal order of the respondents was not based on the criminal court’s judgment and it could not

be so for the reason that it was a case of acquittal. It was, however, based on domestic enquiry, which the employer had every right to conduct

independently of the criminal case.

This Court has consistently held that in a case where the enquiry has been held independently of the criminal proceedings, acquittal in criminal

court is of no avail. It is held that even if a person stood acquitted by the criminal court, domestic enquiry can still be heldâ€"the reason being that the

standard of proof required in a domestic enquiry and that in criminal case are altogether different. In a criminal case, standard of proof required is

beyond reasonable doubt while in a domestic enquiry, it is the preponderance of probabilities. (See Karnataka SRTC v. M.G. Vittal Rao.)

In the case on hand, the appellant employer had conducted the departmental enquiry in accordance with law independently of the criminal case

wherein the enquiry officer, on the basis of the appreciation of evidence brought on record in the enquiry proceedings, came to a conclusion that a

charge of theft against the delinquent employees was proved. This finding was based on preponderance of probabilities and could be recorded by the

enquiry officer notwithstanding the order of criminal court acquitting the respondents.â€​         (Emphasis supplied)

 XIII. In view of the aforesaid decisions, no error has been committed by the learned Single Judge in deciding the writ petition being W.P.(S) No.897

of 2006 vide judgment dated 16.05.2017, and we see no reason to take any other view than what has been taken by the learned Single Judge.

As a cumulative effect of the aforesaid facts, reasons and judicial pronouncements, there is no substance in this Letters Patent Appeal, and the

same is therefore, dismissed with cost of   Rs.5000/- (Rupees  five thousand) . This amount will be deposited by the appellant before

the Jharkhand State Legal Services Authority, Nyaya Sadan, Doranda, Ranchi, within six weeks from today. This amount will be utilized by Jharkhand

State Legal Services Authority for “Access to Justiceâ€​ programmes.

Registry of this Court is directed to send a copy of this order to the Member Secretary, Jharkhand State Legal Services Authority, Nyaya Sadan,

Doranda, Ranchi.