Motising Chhagasing Vaghela vs Mehta (S.D.)

Miabhoy, J.—Petitioner, Motising Chhagasing Vaghela, has filed this petition under Art. 226 of the Constitution of India. There is no dispute

that, at all the relevant times, petitioner was an unarmed police head constable and as such, an employee of the former Bombay State. The original

respondent was C. M. Thaker, who was District Superintendent of Police, Mehsana. There is no dispute that he was, at the relevant time, the

officer competent to dismiss petitioner from the service. The present respondent, S. D. Mehta, is the successor-in-office of the original respondent,

C. M. Thaker. It will be convenient to mention the facts leading up to the present petition at first. On 16 April, 1959, petitioner was serving at

Patan Police Station, District Mehsana. On that day, he was suspended by the original respondent on the ground that he was involved in a

corruption case. Subsequently, petitioner was prosecuted in Special Case No. 3 of 1959 before the learned Special Judge, Mehsana, on the

allegation that, on or about 25 January 1959; petitioner had accepted a bribe of Rs. 90 from one Shanker Parshottam of village Borsan as motive

or reward for showing favour to the said Shanker Parshottam, viz., to forbear from prosecuting that person for an alleged offence of trafficking in

women and that the favour was shown by petitioner in the exercise of his official function. On 30 September 1959, petitioner was acquitted by the

learned Special Judge and he ordered that a B-Summary might be granted. Aggrieved by this order of acquittal, the State Government preferred

an appeal to this High Court, the appeal being Criminal Appeal No. 81 of 1960. That appeal was dismissed by this court by a judgment delivered

on 14 and 15 September 1960. This Court not only upheld the findings recorded by the learned Special Judge but held that

on the evidence, the conclusion is irresistible that the case which has been alleged against the accused is without any foundation and concocted.

Petitioner''s grievance is that though, according to instruction 5(iii)(a) issued by the former Government of Bombay and published in 1958 in the

book entitled ""Instructions regarding the holding of departmental enquiries against police officers and below the rank of police inspectors of police

force in the State of Bombay,"" petitioner was entitled to be reinstated in service with minimum delay, petitioner was not reinstated in service for a

long period of time and that, instead of such reinstatement, petitioner was served with a chargesheet on 16 October 1961 in which two charges

were levelled against him and a departmental enquiry was proposed to be instituted against him. The first charge in this departmental chargesheet

was the same as the charge which was framed in the criminal trial. The second charge was that petitioner had failed to obey the legal orders of the

police inspector, Anti-Corruption Branch, at the time when the trap on 25 January 1959 was implemented by him, that he tried to run away on that

occasion, that he scuffled with the above officer and that he caused him bodily injury. The show-cause notice mentioning the aforesaid charges was

given to petitioner by the original respondent. Petitioner appeared in response to this notice and contended before the original respondent that he

had no authority to hold the departmental enquiry and that the holding of the departmental enquiry constituted a contempt of the High Court. The

original respondent, however, proceeded further with the enquiry and, after recording evidence, summed up his findings in an order, dated 31

March 1962, a copy of which was served to petitioner. The original respondent, thereafter, on 1 April 1962, issued the second show-cause notice

to petitioner informing him that petitioner should show cause why he should not be dismissed from service on the basis of the findings recorded by

him against petitioner. The original respondent held that both the aforesaid charges had been proved. At that stage, petitioner came up to this Court

and filed the present petition in which he challenged the proceedings on some of the grounds, to be presently mentioned. At that stage, the

contention of petitioner was that the original respondent had no jurisdiction to hold an enquiry against him and that, in any case, the enquiry was

bad because the suspension order had not been withdrawn; that the original respondent had no right to take a view different from the one that had

been taken by the High Court in the criminal proceedings on the basis of the same evidence which had been considered by that Court; that the

departmental proceedings constituted a contempt of the findings recorded by the High Court; and that, in any case, the facts of the case disclosed

that the original respondent had made up his mind to punish petitioner. That petition was admitted by this Court on 23 April 1962 and a rule was

issued to the original respondent. Petitioner, at that time, prayed for an interim relief for restraining the original respondent from proceeding further

with the departmental enquiry. However, such an interim relief was refused. During the pendency of this petition, therefore, the proceedings started

by the second show-cause notice on 1 April 1962 proceeded further and, ultimately, the original respondent ordered on 30 April 1962 that

petitioner be dismissed from service. Thereupon, petitioner made Civil Application No. 1029 of 1963 for amending the petition, which application

was granted by an order, dated 16 July 1963. Though the events which took place after the present petition was admitted have been recited in the

above civil application, no corresponding amendments were applied for in the original petition itself, nor were any additional grounds incorporated

in the petition. But we permitted Sri Barot to frame his submissions on the basis of the fresh events which had taken place and Sri Sompura on

behalf of the respondent did not raise any objection. The original petition was amended only by incorporating three reliefs which have been

numbered as (g), (h) and (i). Sri Barot concedes that, in view of the new events which took place after the admission of the petition, the original

reliefs (a) to (e) do not survive. Therefore, in the present petition, we are only concerned with the reliefs (f), (g), (h) and (i) mentioned in the

petition. By those reliefs, petitioner prays that this High Court should hold that the order of dismissal, dated 30 April 1962, was illegal and invalid;

that this High Court should direct respondent any of his successors-in-office to reinstate petitioner forthwith in service and that this High Court

should further direct respondent or any of his successors to pay to petitioner full salary ""as if he was never dismissed from service."" The facts so far

narrated by us are not in dispute, except that we may state that respondent does not admit that the evidence on the basis of which the order of

dismissal was passed was not the same as the evidence in the criminal proceeding. All that is admitted by respondent is that the witnesses who

were examined in the criminal proceeding were the same who were examined in the departmental proceedings.

On the basis of the aforesaid facts, the submissions which Sri Barot makes for the decision of this Court are as follows :

(1) That the departmental enquiry is bad since petitioner was acquitted by the High Court on the same facts.

(2) That there was no evidence whatsoever before the original respondent which would support or sustain the findings recorded by him that the

aforesaid two charges were proved against petitioner.

(3) That the continuance of the suspension order after the order of acquittal was confirmed by this High Court was contrary to the departmental

instruction contained in rule 5(iii)(a) printed in the book, already referred to.

Now, when Sri Barot was making his submission on the first point, we definitely enquired from him as to whether his submission was that the

original respondent had no jurisdiction whatsoever to hold a departmental enquiry after the High Court had confirmed the order of acquittal and, if

so, to state the grounds on which, according to him, the bar was founded. At that stage, Sri Barot stated that he was not prepared to go to the

length of arguing that a departmental enquiry was barred in all cases on an order of acquittal being recorded. His contention at that stage was

limited to the facts of the present case and based on the submission that the departmental enquiry was being held on the same evidence and

materials which had come up for consideration before the learned Special Judge and this High Court. Sri Barot submitted that, when such was the

case, that is, when there was no other additional evidence or material on the basis of which a competent officer intended to rely, a departmental

enquiry based on the same evidence and materials was not sustainable in law. However, after he had proceeded a little further in this submission,

Sri Barot cited the case of Syed Qamarali Vs. State of Madhya Pradesh, and, after this case was read, Sri Barot solicited our permission to

canvass for a larger proposition which he contended was canvassed and upheld in the above case. Having regard to the fact that the question was

purely of law and the observations made by Tare, J., in the aforesaid case were helpful to petitioner, we permitted Sri Barot to address us on the

larger question. Considering the submission without any authority and purely on general principles, we are unable to find any legal basis for the

submission that a departmental enquiry is barred on the same facts on which an order of acquittal has been recorded by a criminal Court. In fact,

we may say that Sri Barot found considerable difficulty in furnishing us with any such legal basis. Sri Barot was also unable to cite any authority in

support of the wide proposition except Syed Qamarali Vs. State of Madhya Pradesh, which we propose to discuss in a moment. We may say that

Sri Barot did not contend that there was any constitutional bar to a departmental proceeding being initiated on an order of acquittal being

recorded. We note that such a contention was raised and negatived in the case of Suresh Chandra Vs. Himangshu Kumar Roy and Others, . In

that case, it was held that a departmental proceeding was not a prosecution within the meaning of Art. 20, Clause (2), of the Constitution of India,

and, therefore that article did not apply to a departmental proceeding being held following the termination of a criminal proceeding in favour of the

delinquent. Immediately after this case, the Supreme Court considered the scope and the effect of the same article in the case of S.A.

Venkataraman Vs. The Union of India (UOI) and Another, . In that case, their lordships, after pointing out the basis of the principle embodied in

Art. 20(2) of the Constitution and stating that the ambit and the contents of the fundamental right guaranteed in that clause were narrower than the

common law rule embodied in the maxim ""Nemo debet bis vexari"" (a man must not be put twice in peril for the same offence) and the doctrine of

double jeopardy"" in the American Constitution and further pointing out that that clause does not contain the principle of ""autrefois acquit"", held

that, in order that Clause (2) aforesaid may be attracted, there must be prosecution for an act which is an offence according to law and a

punishment in accordance with what that law prescribes. S.A. Venkataraman Vs. The Union of India (UOI) and Another, was the reverse of

Suresh Chandra Vs. Himangshu Kumar Roy and Others, . In S.A. Venkataraman Vs. The Union of India (UOI) and Another, a prosecution

followed an enquiry under the Public Servants (Enquiries) Act, 1850, and the contention which their lordships negatived was that a criminal

prosecution following the result of such an enquiry was a second prosecution which was barred under Art. 20, Clause (2). In view of the decision

of their lordships in S.A. Venkataraman Vs. The Union of India (UOI) and Another, , it is quite clear that there cannot be any constitutional bar to

the departmental enquiry being held on the termination of a criminal proceeding in favour of a delinquent. Sri Barot also did not contend that there

was any statutory or legal bar against such a proceeding. It is obvious that the principle laid down in S. 403, Criminal Procedure Code, 1898,

cannot apply to a set of facts as the present. An acquittal order, whether recorded by a subordinate Court or the highest Court, would bar a

second prosecution on the same facts. But, a departmental proceeding is not a prosecution within the meaning of S. 403 aforesaid and, therefore,

there is no such legal bar. The only contention which Sri Barot, apart from the aforesaid Syed Qamarali Vs. State of Madhya Pradesh, could put

forward in support of the aforesaid argument was that a departmental proceeding on the same facts on which a delinquent was acquitted would

constitute contempt of the High Court. Sri Barot here again was not able to cite any authority or state any principle on the basis of which such a

finding can be recorded. In fact, it is well-known that a judgment, after it is delivered, is open to public criticism, even to the extent of saying that

the judgment was incorrect, faulty or unsound on facts or in law. Even if the law was otherwise, when an officer decides to hold a departmental

enquiry, he does nothing of this sort. All that he does is to start a proceeding for the purpose of satisfying himself as to whether, in fact, the

delinquent is guilty of any misconduct or delinquency which requires to be dealt with in the interest of public administration. When holding such an

enquiry, he is not at all concerned, nor is it his object to undertake the decision of the question as to whether the findings recorded by the criminal

Court were right or wrong. His object is only to enquire into the question as to whether the delinquent is guilty of a misconduct or a delinquency

and the mere fact that he is likely to reach a conclusion different from that recorded by the criminal Court cannot bring him within the ambit of the

law of contempt of Court. The fact that an acquittal order is recorded by the High Court or even the highest Court of the realm cannot make any

difference whatsoever on principle. So long as a subject or a public authority does not commit contempt of any of such Courts, the findings

recorded by these Courts would stand on the same footing as the findings recorded by any other Court - the acquittal order of which becomes

final according to the law of the land. If there is no constitutional, statutory or legal bar, then, not only that there are a number of grounds - and we

propose to show that the grounds which appealed to Tare, J., in Syed Qamarali Vs. State of Madhya Pradesh, with due respect, are not

sustainable - on the basis of which it must be held that a departmental enquiry is not barred by an order of acquittal recorded by a criminal Court,

but also that the two proceedings - the departmental and the criminal - are entirely different in nature, they operate in different fields, and they have

different objectives. The materials or the evidence in the two proceedings may or may not be the same and, in some cases, at least, materials or

evidence which would be relevant or open for consideration in the departmental proceeding may absolutely be tabooed in the criminal proceeding.

The rules relating to the appreciation of evidence in the two enquiries may also be different. The scope of an enquiry in a criminal trial is to

determine whether an offence against the law of the land has taken place and, if so, to punish the person who has been guilty of that offence. The

scope of a departmental enquiry is to determine whether a public servant has committed a misconduct or delinquency and, even if the same

constitutes, from one point of view, a crime, to consider the question whether the delinquent deserves to be retained in public service or to be

reverted or to be reduced in rank or otherwise suitably dealt with for the delinquency concerned. In a criminal trial, an incriminating statement made

by an accused, in certain circumstances or before certain individuals, is totally inadmissible in evidence. In a departmental proceeding, the enquiry

officer is not bound by any such technical rule. The degree of proof which is necessary to record an order of conviction is different from the degree

of proof which is necessary to record the commission of a delinquency. Their lordships of the Supreme Court have rejected in State of Andhra

Pradesh Vs. Sree Rama Rao, the view that the standard or the degree of proof in the two proceedings is identical in the following words :

There is no warrant for the view expressed by the High Court in considering whether a public officer is guilty of the misconduct charged against

him, the rule followed in criminal trials that an offence is not established unless proved by evidence beyond reasonable doubt to the satisfaction of

the Court, must be applied, and if that rule be not applied, the High Court in a petition under Art. 226 of the Constitution is competent to declare

the order of the authorities holding a departmental enquiry invalid.

The rule relating to the application of evidence in the two proceedings is also not identical. For example, in a criminal trial, the Court invariably

proceeds on the presumption that accomplice evidence is suspect and shall not be acted upon without an independent corroboration in material

particulars. An enquiry officer is not bound by any such rule. Under the aforesaid circumstances, we are not in a position to uphold the argument of

Sri Barot that the holding of a departmental enquiry after an order of acquittal has been recorded by the High Court constitutes a contempt of the

High Court or that any principle of law becomes offended when a departmental enquiry follows an order of acquittal in favour of a public servant

by a criminal Court.

That brings us to a consideration of Syed Qamarali Vs. State of Madhya Pradesh, . Qamarali was a sub-inspector of police and he, along with

some others, was prosecuted for offences under Ss. 304, 331 and 201, Indian Penal Code, in the Court of a First Class Magistrate. The learned

Magistrate acquitted all the accused ""honourably"". The matter was not taken up further by the prosecution. The charge against Qamarali was that,

on the night of 7 February 1944, he had treated one Mozi by third-degree methods in the course of an investigation in connexion with a theft

alleged to have been committed by that person and that, as a result of the torture, Mozi''s two ribs were fractured, his spleen was ruptured and

ultimately Mozi died. The Magistrate found that there was no beating on the night of 7 February 1944, that, after the investigation, Mozi went back

to his house alive; and that there were no marks of injury on Mozi''s body, but that his two ribs were fractured and his spleen was ruptured.

Thereafter a departmental enquiry was held against Qamarali and the charge in the departmental enquiry was that Qamarali had concealed the facts

as to the cause of the death of Mozi ""who was alleged to have met his death at the hands of"" Qamarali and other police officers during the

investigation. Ultimately, as a result of the enquiry, Qamarali was dismissed. Qamarali then brought the suit, from which second appeal was being

decided by Tare, J., for a declaration that the order of dismissal was void. The ground on which that contention was urged was that the

departmental authorities had no right to sit in judgment over the decision of the criminal Court and, therefore, the order of dismissal was wholly

without jurisdiction. The contention of the State Government in that case was that the charge in the criminal trial was different from the charge in the

departmental enquiry. This contention was upheld by Tare, J. He held that the concealment of facts referred to other matters about conducting the

investigation or holding the interrogation prior to the death of Mozi which could not be a subject-matter of the charge under S. 201 of the Indian

Penal Code. Sri Sompura''s contention is that the point which Sri Barot raises in the present case, therefore, did not arise for consideration in the

above judgment. Having regard to what we have stated uptill now, Sri Sompura is right. In Para. (5), after recording the findings as aforesaid, the

learned Judge proceeds to hold that, on that finding, ""there was no bar to the holding of a departmental enquiry as was laid down by their lordships

of the Supreme Court in the case of Venkataraman"", to which we have already referred. Sri Sompura is also right in contending that the learned

Judge has, with due respect, misunderstood the decision in S.A. Venkataraman Vs. The Union of India (UOI) and Another, . We have already set

out the ratio of Venkataraman case. The ratio of that case, as already pointed out, is that a decision recorded by a Commissioner under the Public

Servants (Enquiries) Act, 1850, is not a prosecution within the meaning of Art. 20(2). That case did not decide as Tare, J., considers in the case

under consideration that a departmental proceeding is barred if there is an order of acquittal passed by a criminal Court on the same facts. Though

Sri Barot did not concede in express terms that Syed Qamarali Vs. State of Madhya Pradesh, is not identical with the facts of the present case, Sri

Barot had nothing to urge against the argument of Sri Sompura that, in that case, the charges in the departmental and the criminal proceedings

being different, the point which is raised by Sri Barot in the present case did not come up for consideration and was not decided. But what Sri

Barot contends very strenuously is that the decision in Syed Qamarali Vs. State of Madhya Pradesh, was recorded on a set of facts which was

weaker than the facts obtaining in the present case and this is based upon the observations made by Tare, J., in Paras. (6) and (9) of the judgment

reported on pp. 49 and 50 of the citation. The learned Judge begins the discussion on the aforesaid aspect of the case by observing that it was true

that although the subject-matter of the departmental enquiry and the subject-matter of the charges in the criminal case were different, the record

showed that the substance of the charge was based ""on the assumption of the plaintiffs'' guilt in the criminal case."" Having pointed this out, the

learned Judge proceeds to make the following observations :

. . . Once the criminal Court came to the conclusion that the deceased Mozi did not die on the night of 7 February 1944, the same fact could not

be taken as the basis for any departmental action for the purpose of framing any charge. Once the alleged cause of death on 7 February 1944 was

negatived by a Court of law by a judgment, which had become final, no other authority or Court or even a private individual could assume that the

plaintiff was guilty of the offence. If a private individual were to repeat the allegations contained in a charge, of which the accused had been

acquitted in a Court of law, the accused could certainly proceed against the other person civilly or criminally for defamation.

Even a public authority would not be protected, if it flouted the verdict of the law Court. Further Ex. P. 13 shows that the Inspector-General of

Police was mainly guided by the assumption of the plaintiff''s guilt in the said crime and it was from that point of view that he judged the material in

the departmental inquiry. Therefore, the very basis of the order of dismissal was unwarranted and illegal. Such an order based on unwarranted and

unauthorized assumptions could not be said to be an order passed within powers or within jurisdiction of the authority.

Sri Barot very strongly relies upon these observations. Sri Sompura, however, contends that the aforesaid observations must be read in the

context of the facts obtaining in the case and he submits that the said observations do not mean anything further than this that the order of dismissal

in the aforesaid case was based on an assumption of Mozi having died on a particular date, which assumption was not borne out by the record of

the case and, therefore, that fact could not have been made the basis of an order of dismissal specially when that fact was inconsistent with the

finding solemnly recorded by a Court of law. Though some of the aforesaid observations can be explained on the ground sought to be put forward

by Sri Sompura, all the observations cannot be explained on that ground. If Sri Sompura were right, then, it would not have been necessary for the

learned Judge to make the first part of the observations reproduced above. The decision then would be based on the simple ground that the order

of dismissal was based on an assumption and not on proof of an important fact in controversy. That the learned Judge did intend to decide that a

departmental proceeding cannot be initiated or an order of dismissal cannot be supported when a criminal Court has recorded an order of acquittal

is further clear from a number of passages which occur in Para. (9). In that paragraph, the learned Judge after pointing out that, in every

proceeding under Art. 311, Clause (2), of the Constitution, there are two stages in which two opportunities are given to the delinquent, proceeds

to observe as follows :

The former opportunity is justifiable on the ground of the principle of natural justice, while the latter is specifically provided for by the Constitution.

It would be reducing the constitutional guarantee to a nullity, if a Government servant without any tentative conclusion of guilt were called upon to

show cause against the action proposed to be taken. In such as event, he could not be called upon to show any cause whatsoever, as was held by

a Division Bench of this Court consisting of Sinha, C.J. (as he then was), and Bhutt, J., in the case of M. A. Waheed v. State Madhya Pradesh

[A.I.R. 1954 Nag. 229].

This passage is only a preclude to some other passages which constitute really the basis of the decision and these passages are as follows :

The same would be the position if the conclusion of guilt could not be arrived at all. In the present case, the conclusion could not be arrived at, as

the appellant was honourably acquitted of all charges by the criminal Court. The assumption of guilt in the criminal offences was the very basis of

the charge in the departmental enquiry. No authority could be permitted to hold a departmental enquiry on that basis. There would be no question

of sitting in judgment as an appellate Court over the departmental authority. As such, this case is clearly distinguishable from the case of

Bhagwandas Verma v. State of Madhya Pradesh (cited supra) decided by Naik, J.

In the present case, the very elementary principle of natural justice had been violated, namely, that as per verdict of a Court of law, the appellant

had been held innocent of the crime, while the departmental authority purported to sit in judgment over the law Court, as if it were an appellate

authority. If this were permitted, the very foundation of the administration of justice would tumble down. It is true that this Court cannot sit in

judgment over the departmental authority as an appellate Court. But it is equally true that a departmental authority cannot be permitted to sit in

judgment over a law Courts, as if it were an appellate authority.

Therefore, the charge framed in the departmental enquiry could not at all be framed. The further proceedings in the departmental enquiry were just

a nullity. They can as well be ignored by this Court. The conclusion of guilt could not be arrived at in the departmental enquiry, as no such enquiry

could be held. If no conclusion of guilt could be arrived at, the appellant could not be called upon to show cause against the action proposed to be

taken on the basis of the conclusion arrived at in the departmental enquiry. It is thus that the operation of Art. 311(2) is affected ...

In our judgment, the latter passages show that Sri Sompura''s reading of the aforesaid judgment is not correct. Syed Qamarali Vs. State of

Madhya Pradesh, completely supports the proposition for which Sri Barot contends. However, with great respect to the learned Judge, we are

unable to agree with the conclusion that he has arrived at. The principal reason given by the learned Judge for his conclusion is that the holding of a

departmental enquiry on the same facts on which a criminal Court had recorded an order of acquittal was violation of the principles of natural

justice. With due respect, we cannot agree with this view of the learned Judge. The learned Judge has expatiated this view by stating that a

departmental authority cannot be permitted to sit in judgment over a law Court as if it were an appellate authority. There is no principle of natural

justice which prevents a departmental authority from doing this. Even apart from this, as we have already pointed out, when a departmental

authority investigates into the same facts, it does not purport to sit in judgment over the order of acquittal. That is not the object of his enquiry or

the function that he is discharging. The object of his enquiry, as already pointed out, is to find out whether a delinquency has or has not been

committed and whether the delinquent does or does not deserve to be retained in service and, if he is to be retained, on what terms. Just as, when

in legal proceedings, a criminal judgment is not binding on a civil Court and if a civil Court investigates into the same facts already investigated into

by a criminal Court, there is no breach of any principles of natural justice, similarly when a departmental authority is investigating into a case already

decided upon by a criminal Court, he does not commit breach of any principle of natural justice. Another reason adduced by the learned Judge in

support of his conclusion is that, in his view, if any enquiry were to be instituted against the tenor of a judgment recorded by a criminal Court, then,

the person holding such an enquiry would render himself liable to a civil or criminal action for defamation. In connexion with a similar argument

based on the law of contempt of Court, we have rejected Sri Barot''s argument. At least, without any further authority which does not appear in

the judgment of the learned Judge, nor was any cited by Sri Barot, we are not prepared to hold that the law of defamation as stated by the learned

Judge is correctly stated. So far as we have been able to see, these are the two principal reasons which appealed to the learned Judge and on the

basis of which he arrived at the conclusion that he did. In our judgment, none of those two reasons is of any cogency. On the contrary, for the

reasons which we have already indicated above - and in our judgment these are cogent reasons - it is impossible to hold that a departmental

enquiry is barred when a criminal Court has recorded an order of acquittal. Therefore, we must reject the broad submission of Sri Barot which he

formulated after Syed Qamarali Vs. State of Madhya Pradesh, was cited.

The qualified submission which Sri Barot at first made has also no merit and deserves to be rejected.

Sri Barot''s contention is that, even if a departmental enquiry can be held after an order of acquittal has been recorded, it can be held only if

there is additional evidence or material at the disposal of the competent authority. Having regard to the reasons which we have given above, based

on the difference in the scope of the two enquiries, the difference in the degree of proof and the difference in the principles on the basis of which

evidence is appreciated, such a qualification is not at all necessary to be introduced and cannot be sustained. If an enquiry can be held, as we have

already held that it can be so held, on the same facts on which the order of acquittal was founded, then, there is no necessity or justification in law

for the introduction of the aforesaid qualification. Sri Barot contends that it is odd and in some cases it may even generate lack of confidence in

public servants if an order passed by a criminal Court were not to be respected and a departmental enquiry were to be held and a different

conclusion recorded and such a serious consequence were permitted to follow as an order of dismissal - on the same facts and materials already

considered by the criminal Court. But it is for the legislature to consider this aspect of the matter and not for the Court to hold that the departmental

enquiry is barred specially when there is no breach of constitutional or statutory laws or any violation of the principle of natural justice. In our

judgment, having regard to the present state of the law, Sri Sompura is right in contending that the matter relates to the realm of propriety and not

to the realm of validity or the enquiry of the order which may be passed therein. Sri Sompura submits that the authorities are fully aware of this

aspect of the matter and that, in this connexion, at least so far as the departmental enquiries against police officers are concerned, he points out to

us rule 445(2) in the Bombay police Manual, 1959, Vol. I, 8th Edn., in which suitable instructions have been issued to the competent authorities as

to how they should proceed when an order of acquittal has been recorded in favour of a police officer. The instruction directs the competent

authorities to consider the reasons in the case of an acquittal by a Court which led to an acquittal, but, at the same time, points out that if the officer

is not satisfied after considering such reasons that the delinquent is fit for retention in public service, then, he must hold a regular departmental

enquiry in the matter. We will leave the matter at that stage and say nothing further on this aspect of the matter.

The second submission of Sri Barot is that there was no evidence in the departmental enquiry on the basis of which the order of dismissal can

be sustained. However, Sri Barot was unable to point out to us anything on the record which would go to show that there was no evidence

whatsoever before the competent authority on the basis of which the order of dismissal could be passed. The summing up is on the record of the

case and from that summing up, it is quite clear that there was evidence which, if believed, would sustain the order of dismissal. What really Sri

Barot has in mind is not total lack of evidence, but the quality of that evidence. What really Sri Barot contends is that the order of dismissal was

passed on the aforesaid evidence which had been found to be false and concocted in an appeal decided by this Court. That is entirely a different

aspect and an order cannot be stated to be mala fide simply because in a former proceeding, a higher Court, entrusted with criminal jurisdiction,

had come to the conclusion that that evidence was false or was concocted. The rule of law on the subject is that the evidence must be of such a

character that no reasonable person on that particular evidence could ever have recorded the finding that the competent authority has done. No

argument was addressed by Sri Barot on this subject and, therefore, the second submission of Sri Barot must equally be rejected.

As regards the third submission, apart from the utility of that submission in so far as the present petition intends to challenge the order of

dismissal, the submission itself is based upon an improper reading of the instruction on which Sri Barot relies. That instruction is not an absolute

one. The instruction is qualified and the instruction says that the time-leg between the acquittal and the reinstatement should be reduced to the

absolute minimum ""if the reinstatement of an officer on acquittal or discharge is decided upon."" From the facts of the present case, it is quite clear

that, after the order of acquittal was recorded, the competent authority, in his discretion, thought that a reinstatement of petitioner was not proper

or expedient and once he came to that particular conclusion, the aforesaid instruction cannot come into play. Under the aforesaid circumstances,

the third submission of Sri Barot must be rejected.

For the aforesaid reasons, in our judgment, there is no substance in this petition and the same deserves to be dismissed. Having regard to the

facts of the case, there will be no order as to costs.

Rule discharged. No order as to costs.