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Saturday, November 30, 2013

Service matter - whether the respondent, who was dismissed from service following disciplinary proceedings, is liable to be reinstated on acquittal by a criminal court on the ground of identity of charges in the departmental as well as criminal proceedings. = Apex court held No = State of West Bengal & Ors. … Appellants Versus Sankar Ghosh … Respondent = published in http://judis.nic.in/supremecourt/imgst.aspx?filename=41023

 whether  the
respondent,  who  was  dismissed   from   service   following   disciplinary
proceedings, is liable to be reinstated on acquittal by a criminal court  on
the ground of identity of charges in the departmental as  well  as  criminal
proceedings. = Apex court held No =

Regulation 4 of Chapter 19 of  the  Police  Regulations  of  Calcutta,
1968, which is applicable to the case in hand,  specifically  provides  that
acquittal or discharge in a criminal proceeding shall not be a bar to  award
punishment in a departmental proceeding in respect  of  the  same  cause  or
matter.   
The said Regulation is extracted below for easy reference :
     
 “4.   Discharge or acquittal not a bar to departmental  punishment.  –
      An order of discharge or acquittal of a Police Officer shall not be  a
      bar to the award of departmental punishment to that officer in respect
      of the same cause or matter.”



18.   Above rule indicates  that  even  if  there  is  identity  of  charges
levelled against the respondent before the Criminal Court as well as  before
the Enquiry Officer, an order of discharge or acquittal of a police  officer
by a Criminal Court shall not be a bar to  the  award  of  the  departmental
punishment.  
The Tribunal as well as the High Court have not considered  the
above-mentioned provision and have  committed  a  mistake  in  holding  that
since the respondent was acquitted by a Criminal Court of the same  charges,
reinstatement was automatic. 
We find it difficult  to  support  the  finding
recorded by the Tribunal which  was  confirmed  by  the  High  Court.    We,
therefore, allow the appeal and set aside the order of the  Tribunal,  which
was affirmed by the High Court.   However, there will  be  no  order  as  to
costs.


                                         REPORTABLE

                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                       CIVIL APPEAL NO. 10729 OF 2013
             (@ Special Leave Petition (Civil) No.29808 of 2010)


State of West Bengal & Ors.             … Appellants

           Versus

Sankar Ghosh                                 … Respondent


                               J U D G M E N T



K.S. Radhakrishnan, J.


1.    Leave granted.


2.    We are,  in  this  case,  concerned  with  the  question
whether  the
respondent,  who  was  dismissed   from   service   following   disciplinary
proceedings, is liable to be reinstated on acquittal by a criminal court  on
the ground of identity of charges in the departmental as  well  as  criminal
proceedings.

3.    The respondent was working as a Sepoy in  the  2nd  Battalion  of  the
Kolkata Armed Police.  At the time of the incident,  he  was  working  as  a
Sepoy on deputation in the Traffic Department of  Kolkata  Police.   He  was
arrested by the police in connection with Khardah  P.S.  Case  No.383  dated
12.11.2013 and charged for the offences under Sections 392, 395 and  412  of
the Indian Penal Code read with Sections 25 and 27 of the Arms Act  for  his
complicity in the commission of  a  dacoity  using  a  motor  cycle  bearing
Registration No.WB-24/F-3050.  On his arrest, he  was  produced  before  the
Sub-Divisional Magistrate,  Barrackpore,  and  he  was  remanded  to  police
custody till  28.11.2003  and  then  to  judicial  custody  till  30.3.2004.
Later, he was released on 1.4.2004.   The department placed  the  respondent
under suspension w.e.f. 26.11.2003 and was later served with a charge  sheet
on 1.6.2004.  The operative portion of the charge sheet reads as follows :-
      “You Sepoy 14610 Sankar Ghosh of 2nd Bn., K.A.P. working on deputation
      to Traffic Department,  Kolkata  Police,  presently  under  suspension
      w.e.f. 26.11.2003 F.N. are charged with gross misconduct unbecoming of
      a member of the Kolkata Police Force in that :-

      1)    You were arrested on 26.11.2003 by Khardah P.S. for your  direct
      complicity in commission of dacoity  vide  Khardah  P.S.  Case  No.383
      dated 12.11.2003 u/S. 392 IPC adding Section  395/412  CPC  and  25/27
      Arms Act by using a motor cycle T.V.S. Victor  Blue  coloured  bearing
      Regd No.24F/3050


      2)    You were produced before the Ld. SDJM Barrackpore  on  the  same
      day (2611.03) and resumed P.C. till 28.11.2003 and then to  J.C.  till
      30.3.2004.  You were released from Dum Dum Central Jail on 1.4.2004.


      3)    It appears from the record that you have no stay out  permission
      from the competent authority and you were  involved  in  the  criminal
      case in the jurisdiction  of  Khardah  P.S.  and  also  arrested  from
      outside the Kolkata Police jurisdiction.


      4)    You being a member of the disciplined force,  your  involved  in
      such type of heinous crime tarnished the image/prestige of the Kolkata
      Police force in the estimation of the members of the public in large.


            You are hereby directed to state whether you plead guilty to the
      charges or want an open enquiry into the matter.  Your  written  reply
      should reach within 7 (seven) days of the receipt of this charge.


                                                 Deputy Commission of Police
                                               Traffic Department, Kolkata.”

4.    The respondent replied to the charge sheet and a detailed enquiry  was
conducted by the Enquiry  Officer.    On  conclusion  of  the  enquiry,  the
Enquiry Officer after perusing the materials on  record  and  after  hearing
the parties drew up his report on the enquiry on  10.11.2004.   The  Enquiry
Officer found the respondent guilty of the  charges  levelled  against  him.
The Disciplinary Authority, after considering the Enquiry Report as well  as
after hearing the respondent, concurred with  the  views  expressed  by  the
Enquiry Officer and ultimately decided to impose the  penalty  of  dismissal
from service.  The respondent was, therefore,  served  with  the  notice  to
show cause as to why he should not be dismissed from service.    A  detailed
reply was submitted by the respondent.  After  considering  the  reply,  the
Disciplinary Authority  dismissed  the  respondent  from  the  Police  Force
w.e.f.  27.12.2004.   The  respondent  then  filed  an  appeal  before   the
Appellate Authority.

5.    The Appellate Authority gave a personal hearing to the  respondent  on
28.2.2005.  The Appellate Authority after having noticed that the  order  of
dismissal was not passed by the appropriate authority, set aside  the  order
and left it to the appropriate authority to pass  appropriate  orders  based
on the Enquiry Report.  The Deputy  Commission  of  Police,  2nd  Battalion,
Kolkata Armed Police, who is the competent authority, after considering  the
entire matter passed a final order dismissing the  respondent  from  service
w.e.f. 2.6.2005.   Against the said order, the respondent  filed  an  appeal
before the  Appellate  Authority  i.e.  the  Joint  Commissioner  of  Police
(A.P.), Kolkata Police.   The  Appellate  Authority  after  considering  the
entire matter, rejected the appeal vide its order dated 25.8.2005.

6.    The  Additional  Sessions  Judge,  Barrackpore,  who  was  trying  the
criminal case  levelled  against  the  respondent  and  five  other  accused
persons for committing the offence  under  395/412  IPC  read  with  Section
25(1)(a)/27/35 of the Arms Act, in the  meanwhile  found  that  the  charges
levelled against the accused  persons  including  the  respondent  were  not
found proved and consequently vide judgment dated  7.12.2007  acquitted  all
the accused persons.  The respondent on his acquittal in the  criminal  case
filed O.A. No.3961 of 2008 before the West Bengal  Administrative  Tribunal.
The Tribunal after perusing the judgment of the  Sessions  Court  acquitting
the respondent and others took the view that the said judgment  should  have
a bearing on the decision of  the  Enquiry  Officer  regarding  disciplinary
proceedings.   Holding so, the appeal was disposed of with  a  direction  to
the Disciplinary Authority to  reinstate  the  respondent  in  view  of  the
acquittal order passed by the Sessions Court in the criminal case.

7.    Aggrieved by the said order, the State of West Bengal along  with  two
others, filed W.P.S.T. No.570 of 2009 before the Calcutta High  Court.   The
High Court dismissed  the  appeal  upholding  the  order  of  the  Tribunal,
against which this appeal has been preferred.

8.    Mr. Kalyan Bandopadhyay, learned Senior Advocate,  appearing  for  the
State of West Bengal submitted that the Tribunal and  the  High  Court  have
committed an error in directing reinstatement of the respondent  in  service
considering the  mere  fact  that  the  respondent  along  with  others  was
acquitted by the Criminal Court.   Learned  senior  counsel  submitted  that
the respondent was not honourably acquitted by  the  Criminal  Court.    The
acquittal was by way of giving benefit of doubt since  the  accused  persons
could not be identified during  the  T.I.  parade.   Further,  it  was  also
pointed out that the High Court has not properly  appreciated  Regulation  4
of Chapter 19 of  the  Police  Regulations  of  Calcutta,  1968,  which  was
applicable to the respondent.

9.    Mr.  Nikhil  Goel,  learned  counsel  appearing  for  the  respondent,
submitted that the Tribunal and the High Court have  correctly  applied  the
ratio laid down by this Court in Capt. M. Paul Anthony v. Bharat Gold  Mines
Ltd. & Anr. [(1993) 3 SCC 679], Sulekh Chand & Salek Chand  v.  Commissioner
of Police & Ors. [1994 Supp. (3) SCC 674] and G.M. Tank v. State of  Gujarat
& Ors.  [(2006) 5 SCC 446] and  ordered  reinstatement  of  the  respondent.
Learned counsel also submitted that since the accused persons could  not  be
identified in the TI Parade, their  complicity  could  not  be  established.
Consequently, the acquittal of the respondent was an  honourable  acquittal.
Going by the various judicial precedents laid down by  this  Court,  learned
counsel submitted that the respondent was rightly reinstated in service  and
the order passed by the Tribunal as well as the  High  Court  calls  for  no
interference.

10.   We may, at the very outset,  point  out  that  the  respondent  was  a
member of the disciplined force.  He was working  as  a  Sepoy  in  the  2nd
Battalion of the Kolkata Armed Force and at the relevant point  of  time  he
was working as Sepoy on deputation with the traffic  department  of  Kolkata
Police.   It is true that the respondent was dismissed from service  due  to
his involvement in the criminal  case,  wherein  he  was  charged  with  the
offences under Sections 395/412 IPC and Sections 25/27 of the Arms Act.   It
is also the stand of the department that being a member of  the  disciplined
force, his involvement in such a heinous crime tarnished the  image/prestige
of the Kolkata Police Force in the estimation of the members  of  public  in
general.   Before the Enquiry Officer from the side of the department,  four
witnesses were examined,  including  Jiban  Chakraborty,  the  S.I.  Police.
Exh. A-3 to A-12 are the documents  produced  before  the  Enquiry  Officer.
PW3, S.I. Jiban Chakraborty, the Inspector  of  Police  before  the  Enquiry
Officer deposed as follows :
      “During investigation he arrested some suspects into  this  case.   In
      pursuance to the statement of the suspects he arrested the  C.O.  from
      his residence situated in 389, Milangarh, Natagarh under  P.S.  Ghosla
      (24 Pgs.-N) on 26.11.03 at 01.05 hrs.  He  prepared  the  arrest  memo
      (Exhibit No.A5).   He  conducted  in  search  at  this  residence  and
      recovered a sum of Rs.10,000/- from his possession  being  the  stolen
      recovered money of the said case.  He also recovered the  motor  cycle
      bearing No.WB24F-3050 from his house.  During  investigation  he  also
      recovered one private car.  He stated that both the  motor  cycle  and
      the private car were used during the commission of the  crime.  During
      investigation he came to know that the O.C. is a Constable of  Kolkata
      Police posted to 2nd  Bn  of  Kolkata  Police  working  on  deputation
      traffic deptt.  The C.O. was produced before the Ld.  Court  of  SDJM,
      Barrackpore  and  was  remanded  to  P.O.  till  29.11.03  on  further
      production, the C.O. was remanded to jail custody and enlarged on Bail
      on 30.3.04.  After completion of investigation  he  submitted  charge-
      sheet against the C.O. & others u/s 395/412 CPC, 25/27/35 Arms Act


      During cross examination, the P.W. stated that he seized  motor  cycle
      was registered in the name of Sri Swapan Ghosh and the same was seized
      from the possession of Swapan Ghosh.   During  cross  examination  the
      P.W. stated that it is not a fact that the C.O. has no complicity into
      the case.  After thorough investigation & enquiry prima  facie  charge
      established against the C.O. and others.




11.   The Enquiry Officer believed the evidence of PW3  and  concluded  that
the charges levelled against the respondent were proved  beyond  any  shadow
of  doubt,  except  the  charge  that  the  respondent  stayed  out  without
permission.  PW3 had categorically stated that he conducted a search at  the
residence of the respondent and recovered a  sum  of  Rs.10,000/-  from  his
possession being the stolen money.  He had also recovered  the  motor  cycle
bearing No.WB24F-3050 from the respondent’s house which  was  used  for  the
commission of the crime.  During the investigation, he  had  also  recovered
one private car from the  respondent’s  residence.   Investigation  revealed
that both the  motor  cycle  and  the  private  car  were  used  during  the
commission of the crime.

12.   We have gone through the judgment of  the  Sessions  Court.   Sessions
Court  though  acquitted  the  accused  persons  including  the  respondent,
concluded as follows :-
      “While there are vital evidence on the record  regarding  recovery  of
      money, recovery of firearm, recovery of unused writing pad of Dr. R.P.
      Mitra, but the most vital missing link is the identification  made  by
      him in the TI Parade but because of the time lag between the  date  of
      incident and the date of TI Parade and the date of his  statement  u/s
      164 Cr.P.C. (1.12.03) and the further time lag of about six  days  for
      the TI Parade on 6.12.03 does not convince  my  mind  to  accept  such
      evidence relating to identity of the accused persons during the  trial
      could not be bridged by the prosecution  through  any  evidence.   The
      prosecution, therefore, fails as the identity of the  accused  persons
      has not been established before the Court during the trial.”

13.   We, therefore, notice that both the Disciplinary Authority as well  as
the Sessions Court were of the view that there are vital evidence on  record
regarding recovery of money, fire arms and recovery of  unused  writing  pad
of Dr. R.P.  Mitra,   PW3,  the  SI  deposed  further  that  the  money  was
recovered from the house of the respondent so also the motor  bike  as  well
as the car.  The Sessions Court,  however,  had  to  acquit  the  respondent
since Dr. R.P. Mitra could not identify him during the TI Parade.  On  going
through the judgment of the Sessions Court,  it  cannot  be  said  that  the
respondent was honourably acquitted.

14.   In Deputy Inspector General v. S. Samuthiram [(2013) 1 SCC 598],  this
Court in paragraph 24, 25 and 26 of the judgment  has  elaborately  examined
the meaning and scope of the “honourable acquittal” and held as follows :-
      “26. 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.”


15.   The judgment of S. Samuthiram (supra) was later  followed  by  another
Bench of this Court in Commissioner of Police, New Delhi  &  Anr.  V.  Mehar
Singh [(2013) 7 SCC 685].
16.   We indicate that the respondent could not lay his hand to any rule  or
regulation applicable to the Police Force stating that once an employee  has
been acquitted by a Criminal Court, as a  matter  of  right,  he  should  be
reinstated  in  service,  despite  all  the  disciplinary  proceedings.   In
otherwise there is no rule of automatic  reinstatement  on  acquittal  by  a
Criminal Court even though  the  charges  levelled  against  the  delinquent
before the Enquiry Officer as well as the Criminal Court are the  same.   On
this aspect, reference may be  made  to  para  27  of  the  judgment  in  S.
Samuthiram (supra), which reads as under:-
      “27. We have also come across cases where the  service  rules  provide
      that on registration of a criminal case, an employee can be kept under
      suspension and on acquittal by the criminal court, he  be  reinstated.
      In such cases, the reinstatement is  automatic.  There  may  be  cases
      where the service rules provide that in spite of domestic enquiry,  if
      the criminal  court  acquits  an  employee  honourably,  he  could  be
      reinstated. In other words, the issue whether an employee  has  to  be
      reinstated in service or not depends upon  the  question  whether  the
      service rules contain any such provision for reinstatement and not  as
      a matter of right. Such  provisions  are  absent  in  the  Tamil  Nadu
      Service Rules.”



17.   Regulation 4 of Chapter 19 of  the  Police  Regulations  of  Calcutta,
1968, which is applicable to the case in hand,  specifically  provides  that
acquittal or discharge in a criminal proceeding shall not be a bar to  award
punishment in a departmental proceeding in respect  of  the  same  cause  or
matter.   The said Regulation is extracted below for easy reference :
      “4.   Discharge or acquittal not a bar to departmental  punishment.  –
      An order of discharge or acquittal of a Police Officer shall not be  a
      bar to the award of departmental punishment to that officer in respect
      of the same cause or matter.”



18.   Above rule indicates  that  even  if  there  is  identity  of  charges
levelled against the respondent before the Criminal Court as well as  before
the Enquiry Officer, an order of discharge or acquittal of a police  officer
by a Criminal Court shall not be a bar to  the  award  of  the  departmental
punishment.
The Tribunal as well as the High Court have not considered  the
above-mentioned provision and have  committed  a  mistake  in  holding  that
since the respondent was acquitted by a Criminal Court of the same  charges,
reinstatement was automatic.
We find it difficult  to  support  the  finding
recorded by the Tribunal which  was  confirmed  by  the  High  Court.    We,
therefore, allow the appeal and set aside the order of the  Tribunal,  which
was affirmed by the High Court.   However, there will  be  no  order  as  to
costs.




                                        …..………………………J.
                                        (K.S. Radhakrishnan)




                                        ………………………….J.
                                        (A.K. Sikri)
New Delhi,
November 28, 2013.

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