Paras Nath Tiwari and Others vs State of Uttar Pradesh and Others

Suneet Kumar, J.—Heard Sri S.D. Ojha, learned counsel for the petitioners and learned Standing Counsel for the respondents. The petitioners who are three in numbers are constables, while they were posted in Reserve Police Lines, Chitrakoot in 2008, the petitioners were deputed on 5.8.2008 for producing the accused in special case No. 2 of 2008 before the Special Dacoit Court, Rewa, M.P. The accused Raju Kol, Biran and Mauli were taken in the custody of the petitioners from Banda District Jail, to the Court at Reewa M.P. The accused were produced before the Court on the date fixed, but while returning by train, Raju Kol, one of the accused, escaped from the custody of the petitioners from the running train. F.I.R. was registered as Case Crime No. 59 of 2008, under Sections 23 and 224 of the I.P.C., at Police Station, GRP Manikpur, District Manikpur on 7.8.2008. The petitioners were placed under suspension on 7.8.2008. The Superintendent of Police, Chitrakoot vide order dated 12.11.2008 instituted disciplinary enquiry under rule 14(I) of the U.P. Police Officers of Subordinate Ranks (Punishment and Appeal) Rules 1991 (hereinafter referred to as ''Rules''). The charge-sheet dated 16.11.2008 was issued, to the petitioners for dereliction of duty resulting in the escape of hardened criminal from the custody of the petitioners, thus, tarnishing the image of the department. The petitioners participated in the enquiry, were served with show-cause notice on 11.2.2009 alongwith copy of the enquiry report, to which, the petitioners replied. The Superintendent of Police, Chitrakoot vide order dated 23.5.2009 considering the past records of the petitioners i.e. the petitioners had adverse entries in 1982, 1987, 1997 and 1988, dismissed the petitioners from service.

Aggrieved by the order dated 23.5.2009, the petitioners preferred an appeal before the respondent No. 4, Deputy Inspector General of Police, Chitrakoot Dham Range, Banda, District Banda, which was rejected by order dated 14.11.2009, the order was challenged in Writ Petition No. 2254 of 2010, the Court on 21.1.2010 directed the petitioners to prefer revision under the Rules to the next higher authority. Accordingly, the petitioners preferred revision before the Inspector General of Police, Lucknow. The revision was rejected by the respondent No. 2, Additional Director General of Police, Special Crime Branch, Co-operative Crime Investigation Department, Uttar Pradesh at Lucknow, by the order dated 10.3.2010.

The orders dated 23.5.2009, 14.11.2009 and 10.3.2010 passed by the disciplinary, appellate and revisional authority is being assailed in the present writ petition.

The submission of learned counsel for the petitioners is that the circular dated 6.9.2007, issued by the then Director General of Police, lays down the parameters for escorting hardened criminals in Court proceedings, which was not followed, hence, the petitioners cannot be blamed in case one of the hardened criminal had escaped. Secondly, it is argued that in the criminal case the petitioners have been acquitted, hence there is no justification for dismissing the petitioners in a departmental proceedings. Finally, it is argued that there was no independent witness to the incident, so as to, fasten the blame upon the petitioners.

It has not been disputed by learned counsel appearing for the petitioner that the procedure as prescribed under the Rules was not followed. Neither any pleadings nor ground has been taken to that effect, meaning thereby, there is no illegality or infirmity in the conduct of the disciplinary enquiry. As regards, whether the circular dated 6.5.2007 was followed. Para 3 of the Circular provides that in respect of hardened criminals, before the fixed date, the concerned Court should be informed that a hardened criminal is to be produced so that cases of such criminals can be dealt with separately.

The learned counsel for the petitioner has failed to show as to how the Circular was not followed, consequently adversely prejudicing the petitioners, on the contrary, the disciplinary authority has recorded that the hardened criminal managed to escape on return journey despite the criminals were handcuffed. This was made possible only due to the gross negligence on the part of the petitioners. This fact was not disputed by the petitioners either before the disciplinary authority or before the Court that the hardened criminals were handcuffed during their return journey, but it is conceded that the petitioners had fallen asleep.

The scope of judicial review under Article 226 is very limited.

The Supreme Court in the case of The State of Madras Vs. G. Sundaram, AIR 1965 SC 1103 , explained the scope of judicial review:

"7. It is well-settled now that a High Court, in the exercise of its jurisdiction under Article 226 of the Constitution, cannot sit in appeal over the findings of fact recorded by a competent Tribunal in a properly conducted departmental enquiry except when it be shown that the impugned findings were not supported by any evidence...............

9..........High Court could have considered only the fact whether there was any evidence at all which, if believed by the Tribunal, would establish the charge against the respondent. Adequacy of that evidence to sustain the charge is not a question before the High Court when exercising its jurisdiction under Article 226 of the Constitution."

In State Bank of India and Others Vs. Ramesh Dinkar Punde, (2006) 110 FLR 1159 : (2006) 7 JT 383 : (2006) 3 LLJ 563 : (2006) 8 SCALE 11 : (2006) 7 SCC 212 : (2006) SCC(L&S) 1573 : (2006) 4 SCR 511 Supp : (2007) 2 SLJ 78 , Supreme Court observed as follows:

"We are, therefore, clearly of the view that the High Court was erred both in law and on facts in interfering with the findings of the Inquiry Officer, the Disciplinary Authority and the Appellate Authority by acting as a Court of appeal and re-appreciating the evidence."

The Supreme Court recently in Nirmala J. Jhala Vs. State of Gujarat and Another, (2013) 4 AD 144 : AIR 2013 SC 1513 : (2013) 138 FLR 227 : (2013) 6 JT 407 : (2013) LabIC 2113 : (2013) 2 LLN 25 : (2013) 4 SCALE 579 : (2013) 4 SCC 301 : (2013) 2 SCC(L&S) 270 : (2013) 2 SCT 740 : (2013) AIRSCW 1800 , on considering earlier judgments again reiterated the principle of judicial review in disciplinary proceedings and held that in departmental enquiry, the nature and standard of proof is not at par with the judicial and quasi criminal proceedings; the principle of preponderance is applicable and not the doctrine of proof beyond reasonable doubt.

The Apex Court considered the parameter of the Court''s power of judicial review of administrative action or decision. The relevant extract of Nirmala J. Jhala (supra) is as follows:

".....................An order can be set-aside if it is based on extraneous grounds, or when there are no grounds at all for passing it or when the grounds are such that, no one can reasonably arrive at the opinion. The Court does not sit as a Court of Appeal but, it merely reviews the manner in which the decision was made..............Neither the question as to whether there was sufficient evidence before the authority can be raised/examined, nor the question of re-appreciating the evidence to examine the correctness of the order under challenge...............The jurisdiction is circumscribed and confined to correct errors of law or procedural error, if any, resulting in manifest miscarriage of justice or violation of principles of natural justice. This apart, even when some defect is found in the decision-making process, the Court must exercise its discretionary power with great caution keeping in mind the larger public interest and only when it comes to the conclusion that overwhelming public interest requires interference, the Court should intervene."

Supreme Court in S.R. Tewari Vs. Union of India (UOI) and Another, (2013) 6 AD 444 : (2013) 138 FLR 375 : (2013) 9 JT 31 : (2013) LabIC 2810 : (2013) 2 LLN 563 : (2013) 7 SCALE 417 : (2013) 6 SCC 602 : (2013) 2 SCC(L&S) 893 : (2013) 3 SCT 461 , observed as follows:

"30. The findings of fact recorded by a Court can be held to be perverse if the findings have been arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant/inadmissible material. The finding may also be said to be perverse if it is against the weight of evidence, or if the finding so outrageously defies logic as to suffer from the vice of irrationality. If a decision is arrived at on the basis of no evidence or thoroughly unreliable evidence and no reasonable person would act upon it, the order would be perverse."

In the background of the above noted legal principles of judicial review of disciplinary proceedings, I have perused the records of the proceedings, with the assistance of the learned counsel. The procedure as prescribed under the Rules was followed, the petitioners participated in the enquiry, copy of the enquiry report was furnished, to which the petitioners submitted their reply. The Authorities considering the reply and the seriousness of the incidence, have found the petitioners guilty of the charge. This Court in its powers of judicial review would not substantiate the findings of the authorities, nor would enter into the sufficiency of the evidence. The learned counsel for the petitioners has failed to show any illegality or infirmity in the impugned orders.

As regards acquittal in criminal trial, the judgment of the trial Court has been placed on record, which would reflect that the petitioners were not acquitted honorably on merits but on benefit of doubt. Thus, such an acquittal in criminal case would have no bearing on the out come of the disciplinary proceedings.

In R.P. Kapur Vs. Union of India (UOI) and Another, AIR 1964 SC 787 : (1966) 2 LLJ 164 : (1964) 5 SCR 431 , the Constitution Bench held, if trial of criminal case against the delinquent official results in conviction, disciplinary proceedings are bound to follow against the public servant so convicted, but even in case of acquittal departmental proceedings may follow, when the acquittal is other than honorable (Refer K. Venkateshwarlu Vs. The State of Andhra Pradesh, AIR 2012 SC 2955 : (2012) CriLJ 4388 : (2012) 4 JCC 2758 : (2012) 7 JT 392 : (2012) 7 SCALE 397 : (2012) 8 SCC 73 : (2012) AIRSCW 4747 : (2012) 5 Supreme 412 ).

The Supreme Court again in The Divisional Controller, KSRTC Vs. M.G. Vittal Rao, (2011) 13 JT 247 : (2012) 1 LLJ 320 : (2012) LLR 8 : (2011) 13 SCALE 33 : (2012) 1 SCC 442 : (2012) 1 SLJ 155 , held that the standard of proof in both criminal and disciplinary proceedings are different, acquittal in criminal case cannot be the basis of taking away the effect of the departmental proceedings. Paragraph 24 is as follows:

"24. 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 Vs. Bharat Gold Mines Ltd. and Another, AIR 1999 SC 1416 : (1999) 2 CTC 579 : (1999) 82 FLR 627 : (1999) 2 JT 456 : (1999) 1 LLJ 1094 : (1999) 2 SCALE 363 : (1999) 3 SCC 679 : (1999) SCC(L&S) 810 : (1999) 2 SCR 257 : (1999) AIRSCW 1098 : (1999) 3 Supreme 376 , 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."

In State of N.C.T. of Delhi Vs. Ajay Kumar Tyagi, (2013) 115 CLT 806 : (2012) CriLJ 4489 : (2012) 8 JT 190 : (2012) 8 SCALE 424 : (2012) 9 SCC 685 : (2013) 1 SLJ 45 : (2012) 3 SLJ 420 : (2012) AIRSCW 4815 : (2012) 6 Supreme 339 , a three judge bench of the Supreme Court was considering the conflict of decisions rendered in P.S. Rajya Vs. State of Bihar, (1996) 4 AD 627 : (1996) 6 JT 480 : (1996) 4 SCALE 344 : (1996) 9 SCC 1 : (1996) 2 SCR 631 Supp , where a two judge bench had held that if a person is exonerated in a departmental proceeding, no criminal proceedings based on the same charge can be launched or may continue against him, whereas, in Kishan Singh (D) through LRs. Vs. Gurpal Singh and Others, AIR 2010 SC 3624 : (2010) CriLJ 4710 : (2010) 9 JT 69 : (2010) 8 SCC 775 : (2010) AIRSCW 5527 : (2010) 6 Supreme 516 , another two-judge Bench had taken a contrary view, therefore, the matter required consideration by the Larger Bench. In Ajay Kumar Tyagi (supra) the Supreme Court held as follows:

"25. We are, therefore, of the opinion that the exoneration in the departmental proceeding ipso facto would not result in the quashing of the criminal prosecution. We hasten to add, however, that if the prosecution against an accused is solely based on a finding in a proceeding and that finding is set aside by the superior authority in the hierarchy, the very foundation goes and the prosecution may be quashed. But that principle will not apply in the case of the departmental proceeding as the criminal trial and the departmental proceeding are held by two different entities. Further, they are not in the same hierarchy."

Recently in State of West Bengal and Others Vs. Sankar Ghosh, (2013) 12 AD 599 : AIR 2014 SC 405 : (2014) 140 FLR 525 : (2013) 15 JT 360 : (2014) LabIC 1579 : (2014) 2 LLN 331 : (2014) LLR 319 : (2013) 14 SCALE 245 : (2014) 3 SCC 610 : (2014) 1 SCC(L&S) 619 : (2014) 3 SCJ 77 : (2014) 1 SCT 580 : (2014) 1 SLJ 273 , the Supreme Court held that there is no automatic reinstatement on acquittal by a criminal Court, save and except where there is a rule to that effect. The nature of acquittal whether honourable or technical will have to be seen even were the charges in departmental and criminal case were identical.

In Govt. of A.P. and Another Vs. B. Jagjeevan Rao, (2014) 7 SCALE 434 : (2014) 3 SCT 323 , the Supreme Court held that dismissal order could be passed pending criminal appeal and suspension of sentence. The distinction between stay of conviction and suspension of sentence as envisaged under Section 389 of Criminal Procedure Code 1973 was explained.

In the judgment dated 6.7.2011 rendered by the Chief Judicial Magistrate, Chitrakoot in State v. Paras Nath Tiwari and others, Criminal Case No. 600 of 2009, the petitioners in their statement had stated that they fell asleep and the criminal taking advantage managed to escape from running train. The learned trial Court acquitted the petitioners on benefit of doubt as the prosecution had failed to prove the charges beyond reasonable doubt.

Considering the law as stated hereinabove, the acquittal on technical grounds would not bind the disciplinary authority in a proceedings where the charges need to be proved on the principle of preponderance and not on the doctrine of proof beyond reasonable doubt.

The writ petition being devoid of merit is accordingly dismissed. No order as to cost.