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Saturday, November 30, 2013

Cancellation of Railway tender on technical point is not illegal nor arbitrary to interfere by courts - Apex court confirm the judgement of division bench = Maa Binda Express Carrier and Anr. …Appellants Versus Northeast Frontier Railway and Ors. …Respondents = published in http://judis.nic.in/supremecourt/imgst.aspx?filename=41031

Cancellation of Railway tender on technical point is not illegal nor arbitrary to interfere by courts - Apex court confirm the judgement of division bench =

invited tenders for the grant of a three year lease of  23
tonnes of space in VPH (Parcel Van) on train No.15960/15959 Kamrup  Express.
Among those who responded to the tender notice was the appellant herein  who
offered a sum of Rs.1,46,872/- per trip for the proposed lease. 
The  tender
process  was  discharged  by  the  railway  administration  on  account   of
technical and administrative reasons no matter  the  appellant’s  offer  was
the highest.  =
Submission of a tender in response  to  a  notice  inviting
such tenders is no more  than  making  an  offer  which  the  State  or  its agencies are under no obligation to accept.  -
 (i)  Whether  the  process  adopted  or  decision  made  by  the
           authority is mala fide or intended to favour someone; or 
whether
           the process  adopted  or  decision  made  is  so  arbitrary  and
           irrational that the court can say: "the decision is such that no
           responsible authority acting reasonably and in  accordance  with
           relevant law could have reached"; and 
(ii)  Whether  the  public
           interest is affected. If the answers to the above questions  are
           in negative, then there should be no interference under  Article
           226.”

 As pointed out in the earlier part  of  this  order  the  decision  to
cancel the tender process was in no way discriminatory or mala fide. 
On  the
contrary, if a contract had been awarded despite  the  deficiencies  in  the
tender  process  serious  questions  touching  the  legality  and  propriety
affecting the validity of the tender process would have arisen.  
In as  much
as the competent authority decided to cancel the tender process, it did  not
violate any fundamental right of the appellant nor could the action  of  the
respondent be termed unreasonable so as to  warrant  any  interference  from
this Court. 
The Division  Bench  of  the  High  Court  was,  in  that  view,
perfectly justified in setting aside the order passed by  the  Single  Judge
and dismissing the writ petition.
12.   In the result this appeal fails and is  hereby  dismissed  with  costs
assessed at Rs.25,000/-
            
 REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION
                      CIVIL APPEAL NO.  10751   OF 2013
                (Arising out of S.L.P. (C) No.18405 of 2012)


Maa Binda Express Carrier and Anr.                 …Appellants

      Versus

Northeast Frontier Railway and Ors.               …Respondents







                               J U D G M E N T

T.S. THAKUR, J.

1.    Leave granted.




2.    This appeal arises out of a judgment and order dated  6th  June,  2012
passed by a Division Bench of the Gauhati High  Court  whereby  Writ  Appeal
(C) No.79 of 2012 has been allowed; judgment and order dated  4th  February,
2012 passed by a Single Bench of that Court set aside and Writ Petition  (C)
No.4668 of 2011 filed by the appellants dismissed.
3.    In terms of a notice  dated  12th  July,  2011  Divisional  Commercial
Manager, Tinsukia 
invited tenders for the grant of a three year lease of  23
tonnes of space in VPH (Parcel Van) on train No.15960/15959 Kamrup  Express.
Among those who responded to the tender notice was the appellant herein  who
offered a sum of Rs.1,46,872/- per trip for the proposed lease.
The  tender
process  was  discharged  by  the  railway  administration  on  account   of
technical and administrative reasons no matter  the  appellant’s  offer  was
the highest.
A communication dated 6th September,  2011,  addressed  to  the
appellant was in that regard issued to the appellant who assailed  the  same
in W.P. (C) No.4668 of 2011 before the High Court of Gauhati.
4.      In   their   counter   affidavit   the   railways    defended    the
cancellation/discharge of the  tender  not  only  on  the  ground  
that  the
appellant had acquired no vested right for allotment of the contract in  its
favour merely because its bid was found to be the highest, but also  on  the
ground that 
 the  power  to  cancel/withdraw  the  tender  notice  had  been
specifically reserved by the railway administration  in  its  favour.   That
apart, 
the cancellation of the tender process was  sought  to  be  justified
also on the ground that 
the railway administration had discovered a  serious
deficiency in the same in as much  as  the  tender  forms  had  been  issued
without enclosing therewith the terms and conditions subject  to  which  the
contract could be allotted or awarded. 
It was also  contended  that  an  all
important penalty clause had not been incorporated in the tender  documents.
These  omissions  and  deficiencies  were  according   to   the   respondent
sufficient for cancellation of the tender process to be followed by a  fresh
process in due course.
5.    A learned Single Judge of the High Court of Gauhati  before  whom  the
matter was argued took the view that the discharge  of  the  tender  process
had caused prejudice to the appellant by reason of his rates  having  become
public.  It was also held by the learned  Single  Judge  that  every  public
authority was required to act  fairly  while  granting  contracts  and  that
reasons for cancellation of the tender process should have been set  out  in
the  communication  sent  to  the  appellant  instead  of  being   disclosed
subsequently in the affidavit filed in  opposition  to  the  writ  petition.
The learned Single Judge  accordingly  allowed  the  writ  petition  with  a
direction that so long as the appellant  undertook  to  accept  the  penalty
clause  as  a  part  of  the  contract  between  the  parties  the   railway
administration  would  consider  its  bid  for  acceptance   and   resultant
allotment of the contract within 15 days of receipt of the undertaking.
6.    Aggrieved by  the  judgment  and  order  abovementioned,  the  railway
administration preferred Writ Appeal (C) No.79 of 2012 before  the  Division
Bench of the High Court of Gauhati. Relying upon the decision of this  Court
in Raunaq International Ltd. v. I.V.R. Construction Ltd. and Ors.  (1999)  1
SCC 492 the Division Bench held that the  appellant  acquired  no  right  to
claim the award of the contract merely  by  reason  of  its  bid  being  the
highest.  It further held that the scope of judicial  review  being  limited
in tender matters, the Court had to restrain itself  from  interfering  with
the process so long as the decision  of  the  competent  authority  was  not
against public interest, irrational, mala fide  or  illegal.   It  was  also
held that merely because the order discharging tender process was silent  as
to the reasons for the decision the same did  not  prevent  the  Court  from
looking into the records to find out the basis  on  which  the  cancellation
was ordered.  So also the argument that exposure of  rates  offered  by  the
appellant would result in prejudice to  the  appellant  was  rejected  as  a
ground  to  justify  interference  with  the   decision   of   the   railway
administration which was otherwise held to be  legal  and  bona  fide.   The
present appeal assails the said decision as seen earlier.
7.    We have heard learned counsel for the  parties  at  some  length.  The
material facts are not  in  dispute.
 It  is  not  in  dispute  that  tender
documents were not accompanied by the terms  and  conditions  applicable  to
the proposed contract.     
That  being  so,  award  of  a  contract  without
specifying the terms subject to which the same had to be  worked  was  bound
to result in serious administrative and legal  complications.  
 It  is  also
not in dispute that no tender Box Opening Committee had been nominated  with
the approval of the Controlling Officer nor was any verification  of  tender
documents conducted by the Division concerned  for  their  genuineness.  
The
absence of a penalty clause  from  the  tender  documents  was  similarly  a
serious deficiency in the entire tender process. 
Cancellation of the  tender
process could not, in that view, be  said  to  be  mala  fide  to  call  for
interference by the High Court. 
 The  respondents  have,  in  their  written
submissions filed before us, referred to Circular No.12  of  2006  by  which
guidelines for leasing out existing space in  trains  for  the  purposes  of
operating parcel services have been issued. 
These  guidelines,  inter  alia,
stipulate that a tender Committee shall be put  together  which  requirement
was also not complied with while issuing the tender notice  in  the  instant
case. 
That apart, the Ministry of Railways  has,  by  Circular  No.13  dated
31st May, 2012, revised  the  rate  structure  for  booking  of  parcel  and
luggage services. 
The revised rate for Kamrup Express is Rs.4756/- per  ton.
 The reserve price calculated on that  basis  comes  to  Rs.1,84,100/-.  
The
offer made by the appellant was much below that amount.  
Besides,  a  market
survey conducted in terms of an interim order passed by the High  Court  had
revealed that the contract could fetch  Rs.2,25,000/-  per  trip  which  was
substantially higher than Rs.1,46,872/- quoted by the appellant. 
Suffice  it
to say that not only is the reserve price applicable as on date higher  than
the amount offered by the appellant but even the market survey  has  brought
forth rates higher than what was offered by  the  appellant.   
Allotment  of
any contract at the rate offered by the appellant would,  therefore,  result
in a substantial financial loss to the railways  which  is  neither  in  the
public interest nor necessitated by any legal compulsion. 
Time lag  in  such
matters plays an important role as it indeed has in the case at hand.
8.    The scope of judicial review in matters relating to award of  contract
by the State and  its  instrumentalities  is  settled  by  a  long  line  of
decisions of this Court.  
While  these  decisions  clearly  recognize  that
power exercised by the Government and its  instrumentalities  in  regard  to
allotment of contract is subject to judicial review at the  instance  of  an
aggrieved party,
submission of a tender in response  to  a  notice  inviting
such tenders is no more  than  making  an  offer  which  the  State  or  its agencies are under no obligation to accept.
The  bidders  participating  in
the tender process cannot, therefore, insist that their  tenders  should  be
accepted simply because a given tender is the highest  or  lowest  depending
upon whether the contract is for sale of public property  or  for  execution
of works on behalf of the Government.
All that  participating  bidders  are
entitled to is a fair, equal and non-discriminatory treatment in the  matter
of evaluation of their tenders.
It is also fairly  well-settled  that  award
of a  contract  is  essentially  a  commercial  transaction  which  must  be
determined  on  the  basis  of  consideration  that  are  relevant  to  such
commercial decision.  This implies that terms subject to which  tenders  are
invited are not open to the judicial scrutiny unless it is  found  that  the
same have been tailor made to benefit any particular tenderer  or  class  of
tenderers.
So  also  the  authority  inviting  tenders   can   enter   into
negotiations or grant relaxation for bona fide and cogent  reasons  provided
such  relaxation  is  permissible  under  the  terms  governing  the  tender
process.
9.    Suffice it to say that  in  the  matter  of  award  of  contracts  the
Government and its agencies have to act reasonably and fairly at all  points
of time. To that extent the tenderer has an enforceable right in  the  Court
who is competent to examine whether the aggrieved  party  has  been  treated
unfairly or discriminated against  to  the  detriment  of  public  interest.
(See: Meerut Development Authority v. Association of Management Studies  and
Anr. etc. (2009) 6 SCC 171  and  Air  India  Ltd.  v.  Cochin  International
Airport Ltd. (2000) 1 SCR 505).
10.   The scope of  judicial  review  in  contractual  matters  was  further
examined by this Court in Tata Cellular v. Union of India (1994) 6 SCC  651,
Raunaq International Ltd.’s case (supra) and in Jagdish Mandal v.  State  of
Orissa and Ors. (2007) 14 SCC 517 besides several other decisions  to  which
we need not refer.  In Michigan Rubber (India) Ltd. v.  State  of  Karnataka
and Ors. (2012) 8 SCC 216 the legal position on the subject  was  summed  up
after a comprehensive  review  and  principles  of  law  applicable  to  the
process for judicial review identified in the following words:

           “19. From the above decisions, the following principles emerge:


           (a) the basic requirement of Article 14 is fairness in action by
           the State, and non-arbitrariness in essence and substance is the
           heartbeat of fair  play.  These  actions  are  amenable  to  the
           judicial review only to the  extent  that  the  State  must  act
           validly for a discernible reason and  not  whimsically  for  any
           ulterior purpose.  If  the  State  acts  within  the  bounds  of
           reasonableness,  it   would   be   legitimate   to   take   into
           consideration the national priorities;


           (b) fixation of a value of the tender  is  entirely  within  the
           purview of the executive and courts hardly have any role to play
           in this process except for striking  down  such  action  of  the
           executive as is proved to be arbitrary or unreasonable.  If  the
           Government acts in conformity with certain healthy standards and
           norms such as awarding of  contracts  by  inviting  tenders,  in
           those circumstances, the interference by Courts is very limited;


           (c) In the matter of formulating conditions of a tender document
           and awarding a contract, greater  latitude  is  required  to  be
           conceded to the State authorities unless the action of tendering
           authority is found to be malicious and a misuse of its statutory
           powers, interference by Courts is not warranted;


           (d) Certain preconditions or qualifications for tenders have  to
           be laid down to ensure that the contractor has the capacity  and
           the resources to successfully execute the work; and



           (e) If the State or its instrumentalities act reasonably, fairly
           and  in  public  interest  in  awarding  contract,  here  again,
           interference by Court is very restrictive since  no  person  can
           claim  fundamental  right  to  carry  on   business   with   the
           Government.

           20.  Therefore,  a  Court  before  interfering  in   tender   or
           contractual matters, in exercise of power  of  judicial  review,
           should pose to itself the following questions:
           
(i)  Whether  the  process  adopted  or  decision  made  by  the
           authority is mala fide or intended to favour someone; or 
whether
           the process  adopted  or  decision  made  is  so  arbitrary  and
           irrational that the court can say: "the decision is such that no
           responsible authority acting reasonably and in  accordance  with
           relevant law could have reached"; and 
(ii)  Whether  the  public
           interest is affected. If the answers to the above questions  are
           in negative, then there should be no interference under  Article
           226.”


                                                         (emphasis supplied)

11.   As pointed out in the earlier part  of  this  order  the  decision  to
cancel the tender process was in no way discriminatory or mala fide. 
On  the
contrary, if a contract had been awarded despite  the  deficiencies  in  the
tender  process  serious  questions  touching  the  legality  and  propriety
affecting the validity of the tender process would have arisen.  
In as  much
as the competent authority decided to cancel the tender process, it did  not
violate any fundamental right of the appellant nor could the action  of  the
respondent be termed unreasonable so as to  warrant  any  interference  from
this Court. 
The Division  Bench  of  the  High  Court  was,  in  that  view,
perfectly justified in setting aside the order passed by  the  Single  Judge
and dismissing the writ petition.
12.   In the result this appeal fails and is  hereby  dismissed  with  costs
assessed at Rs.25,000/-


                                                          .……………….……….…..…J.
                                                               (T.S. THAKUR)




                                                         .…..…………………..…..…J.
                                                            (VIKRAMAJIT SEN)
New Delhi
November 29, 2013

Company petition = Since company not paid entire sale consideration after allotment of plot by the A.P.I.I.C.Ltd., - and after cancellation of plot and forfeit of amount, the official liquidator of the company can not lay any rights over the plot which was cancelled by the A.P.I.I.C.Ltd., as ownership was not transferred = The A.P.I.I. Corpn. Ltd. .....Appellant. Versus M/s. Team-Asia Lakhi Semiconductors Ltd. (in liquidation) rep. by the Official Liquidator, Hyderabad & Anr. …..Respondents = published in http://judis.nic.in/supremecourt/imgst.aspx?filename=41026

Company petition = Since company not paid entire sale consideration after allotment of plot by the A.P.I.I.C.Ltd., - and after cancellation of plot and forfeit of amount, the official liquidator  of the company can not lay any rights over the plot which was cancelled by the A.P.I.I.C.Ltd., as ownership was not transferred =
 this appeal has been filed by the Andhra Pradesh
      Industrial Infrastructure Corporation Ltd.
The appellant is a Government Corporation which allots plots  of  land
for the purpose of setting up industries to different  persons.   The  plots
are allotted on certain conditions and if the conditions are  not  fulfilled
or if the entire payment  is  not  made  within  the  time  stipulated,  the
allotment is cancelled and possession of the  plot  is  taken  back  by  the
appellant.
allotted a plot to M/s. Team-Asia Lakhi Semiconductors Ltd.   on  conditions
incorporated in the said letter.
After the Company had failed to make payment  and  the  allotment  was
cancelled,=
the ownership right in respect of  the  plot
in question has not been transferred to the  Company.  
 It  is  an  admitted
fact that the Company, which is now in liquidation, had not paid the  entire
amount of the consideration and 
therefore, the ownership  right  in  respect
of the plot had not been transferred  to  the  Company.   
According  to  the
terms and conditions on which the plot was to be sold to  the  Company,  the
amount which had been paid by the Company had  already  been  forfeited  and
the Company had no right of whatsoever type in the plot in question.
the  High
Court was in error while coming to the conclusion that the appellant had  no
right in the plot in question and therefore, the impugned judgment  as  well
as the order passed in Company Application are quashed and set aside and  it
is held that the plot  in  question  does  not  belong  to  the  Company  in
liquidation and the official liquidator has no right to deal with  the  said
plot or dispose of the said plot and it would  be  open  to  the  appellant-
Corporation to deal with or allot the said plot as per its own policy.
15.      The  impugned  order  as  well  as  the  order  passed  in  Company
Application are quashed. The appeal is, therefore, allowed with no order  as
to costs.

                                             NON REPORTABLE

                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                        CIVIL APPEAL NO.10753 OF 2013
                  (Arising out of SLP(C) No. 31035 of 2011)



The A.P.I.I. Corpn. Ltd.                     .....Appellant.



                                Versus

M/s. Team-Asia Lakhi Semiconductors Ltd.
(in liquidation) rep. by the Official Liquidator,
Hyderabad & Anr.                        …..Respondents


                              1 J U D G M E N T




1 ANIL R. DAVE, J.


   1. Leave granted.
   2. Being aggrieved by the Judgment dated 14th March, 2011  delivered  by
      the High Court of  Judicature  of  Andhra  Pradesh  at  Hyderabad  in
      O.S.A.No.18 of 2008, this appeal has been filed by the Andhra Pradesh
      Industrial Infrastructure Corporation Ltd.
   3. The circumstances in which the aforestated appeal has been filed  are
      as under:
      The appellant is a Government Corporation which allots plots  of  land
for the purpose of setting up industries to different  persons.   The  plots
are allotted on certain conditions and if the conditions are  not  fulfilled
or if the entire payment  is  not  made  within  the  time  stipulated,  the
allotment is cancelled and possession of the  plot  is  taken  back  by  the
appellant.
      In pursuance of the aforestated activity of the appellant-Corporation,
under a letter  dated  31st  August,  1988,  the  appellant-Corporation  had
allotted a plot to M/s. Team-Asia Lakhi Semiconductors Ltd.   on  conditions
incorporated in the said letter.  The allotment was made in pursuance of  an
application dated 20th August, 1988 submitted by the  M/s.  Team-Asia  Lakhi
Semiconductors Ltd. and the plot was  valued  at  Rs.1,22,67,500/-  and  the
said amount had been calculated at the rate of Rs.250/- per sq. meter.   The
said amount had to be paid to the appellant-Corporation  within  sixty  days
from the date of the receipt of the allotment  order.   It  is  an  admitted
fact that within the period prescribed, the entire price  of  the  plot  had
not been paid by the said allottee to the appellant-Corporation and  in  the
circumstances, as per clause 8 incorporated in the said letter, which  reads
as under, the amount paid by the afore-named company had been forfeited.
       “8.  If payment as stipulated in condition (3)  above  is  not  made
       within 60 days of receipt of this allotment letter,  this  allotment
       letter  shall  stand  cancelled  and  the  EMD  paid  shall   remain
       forfeited.”
4.    After the Company had failed to make payment  and  the  allotment  was
cancelled, a request was made by the Company to grant another plot  at  some
reduced price and in pursuance  of  the  said  request,  the  appellant  had
addressed another letter dated 13th March,  2000  to  the  Company  offering
another plot.  The Company again failed to comply with  the  conditions  and
therefore, the proposal with regard to  allotment  under  the  letter  dated
13th March, 2000 also failed.  Once again another plot was  offered  to  the
Company  by  the  appellant  under  letter  dated  3rd   April,   2001   for
Rs.80,00,000/- but the said  transaction  also  did  not  materialize.   The
aforesaid facts demonstrate the chequered history and the  circumstances  in
which the Company could not make entire payment of  the  plot  in  question,
which ultimately resulted into  forfeiture  of  the  amount  paid  and  even
possession of the plot in question was  with  the  appellant  though  for  a
limited purpose, the Company was permitted to occupy the plot.
5.    It is pertinent to note that the Company, because  of  its  very  poor
financial  conditions,  was  ordered  to  be  wound  up  and  the   official
liquidator, appointed by the Company Court wanted to take possession of  the
plot in question so that the said plot may be  sold  and  out  of  the  sale
price, dues of the Company may  be  paid.   When  the  appellant-Corporation
came to know that the official liquidator was making an  effort  to  dispose
of the plot in question, believing the plot to be one of the assets  of  the
Company in Liquidation, a Company Application  No.474/2006  in  the  Company
Petition  No.178/2003  was  filed  by  the  appellant  praying  for   taking
possession of  the  plot  in  question  as  the  plot  was  in  unauthorized
possession  of  the  Company.   In  the  said  proceedings,   the   official
liquidator admitted the  fact  that  the  plot  in  question  had  not  been
transferred in the name of the Company.  Ultimately, by an order dated  28th
June,  2007  the  Company  application  filed  by  the  appellant  had  been
dismissed by the High Court with a direction to the official  liquidator  to
take appropriate steps to dispose of the plot in question.
6.    Being aggrieved  by  the  aforestated  order  passed  in  the  Company
application, the  appellant  had  filed  an  appeal  being  O.S.A.No.20/2008
before the High Court contending that the plot  in  question  had  not  been
transferred to the Company and therefore, the  official  liquidator  had  no
right or title in respect of the plot in question and  therefore,  he  could
not have taken any action for selling the same.
7.    The said appeal filed by the appellant has also been dismissed by  the
High Court of A.P. and therefore, the present appeal has been filed  by  the
appellant-Corporation.
8.    The learned counsel for the appellant had submitted before this  Court
that the ownership right in the plot in question had  not  been  transferred
to the Company and therefore, the official liquidator had no right  to  deal
with the said plot.  The learned counsel had further submitted that  it  was
an admitted fact that the entire amount of the sale price had not been  paid
to the appellant by the  Company  and  therefore,  the  plot  had  not  been
transferred to the Company.
9.    For the aforestated reasons, the learned counsel  had  submitted  that
the impugned order passed by the High Court requires to be quashed  so  that
the appellant-Corporation can deal itself with the plot  in  the  manner  in
which it likes, especially when the  amount  which  had  been  paid  by  the
Company had already been forfeited because the  Company  had  not  fulfilled
the conditions on which the plot had been allotted.
10.   On the other hand, the learned  counsel  appearing  for  the  official
liquidator of the Company had submitted that as an order of winding  up  had
already been passed and as the Company had paid substantial  amount  towards
purchase price of the plot in question, the official liquidator was  rightly
permitted to dispose of the plot as  the  plot  virtually  belonged  to  the
Company.
11.   The learned counsel had tried to substantiate  the  reasons  given  by
the learned Single Judge as well as by the  Division  Bench  while  deciding
O.S.A.No.18 of 2008 in favour of the official liquidator and  had  submitted
that the appeal should be dismissed.
12.   We had heard the learned counsel and had  also  perused  the  relevant
record which clearly shows that
the ownership right in respect of  the  plot
in question has not been transferred to the  Company.
 It  is  an  admitted
fact that the Company, which is now in liquidation, had not paid the  entire
amount of the consideration and
therefore, the ownership  right  in  respect
of the plot had not been transferred  to  the  Company.  
According  to  the
terms and conditions on which the plot was to be sold to  the  Company,  the
amount which had been paid by the Company had  already  been  forfeited  and
the Company had no right of whatsoever type in the plot in question.
13.   In the aforestated circumstances, in our opinion,
the High  Court  was
not justified in giving any right in respect of the plot in question to  the
official liquidator or the Company.   
It  is  pertinent  to  note  that  the
ownership of the plot in question had not been transferred  to  the  Company
and a permissive possession given by the appellant to the Company  for  some
limited purpose would not create any interest or  right  in  favour  of  the
Company. 
 The plot would remain the property  of  the  appellant-Corporation
as the conditions on which the transfer was  to  take  place  had  not  been
fulfilled.
14.   In the aforestated circumstances, we are of the  view  that
the  High
Court was in error while coming to the conclusion that the appellant had  no
right in the plot in question and therefore, the impugned judgment  as  well
as the order passed in Company Application are quashed and set aside and  it
is held that the plot  in  question  does  not  belong  to  the  Company  in
liquidation and the official liquidator has no right to deal with  the  said
plot or dispose of the said plot and it would  be  open  to  the  appellant-
Corporation to deal with or allot the said plot as per its own policy.
15.      The  impugned  order  as  well  as  the  order  passed  in  Company
Application are quashed. The appeal is, therefore, allowed with no order  as
to costs.

                             ……...........................................J.
                                                       (ANIL R. DAVE)


                             ……...........................................J.
                                                          (DIPAK MISRA)
New Delhi
November 29, 2013

ITEM NO.1A             COURT NO.12             SECTION XIIA
(For Judgment)


            S U P R E M E   C O U R T   O F   I N D I A
                         RECORD OF PROCEEDINGS

C.A.NO.10753/2013 arising out of S.L.P.(C)No(s).31035/2011

(From the judgement and order dated 14/03/2011 in OSA No.18/2008 of The
HIGH COURT OF A.P. AT HYDERABAD)


A.P.I.I.C.LTD                               Petitioner(s)

                 VERSUS

M/S TEAM-ASIA LAKHI SEMICONDUCTORS L.&AN    Respondent(s)

Date: 29/11/2013  This Appeal was called on for pronouncement of Judgment
today.

For Petitioner(s)      Mr. Y. Raja Gopala Rao,Adv.


For Respondent(s)      M/s. Lawyer's Knit & Co,Advs.
                    Mrs. D. Bharathi Reddy,Adv.

     UPON hearing counsel the Court made the following
                      O R D E R

                 Hon'ble Mr.  Justice  Anil  R.  Dave  pronounced  the  Non-
          reportable judgment of the Bench comprising  Hon'ble  Mr.  Justice
          Dipak Misra and His Lordship.
                 The appeal is allowed with no order as to costs in terms of
          the signed reportable judgment.


             |(Sarita Purohit)                        | |(Sneh Bala Mehra)       |
|Court Master                            | |Court Master            |

           (Signed Non-reportable judgment is placed on the file)
                           -----------------------
9


Whether the high court can compound the offence under sec.307 I.P.C on compound of parties - Apex court held No = State of Rajasthan .. Appellant Versus Shambhu Kewat and Another .. Respondents = published in http://judis.nic.in/supremecourt/imgst.aspx?filename=41024

Whether the high court can compound the offence under sec.307 I.P.C on compound of parties - Apex court held No =
 The  Sessions  Court,  after  hearing  the
parties and  considering  the  oral  and  documentary  evidence,  found  the
accused persons guilty of the offence  punishable  under  Section  307  read
with Section 34 IPC, but acquitted them of the rest  of  the  charges,  vide
its order  dated  9.7.2009.   

 The High Court examined the scope of Sections  482  and  320
CrPC and expressed  the  view  that  there  are  certain  similarities  and
differences between compounding  and  quashing  a  case  on  the  basis  of
compromise and hence, quashing of a criminal proceeding upon  a  compromise
is well within the discretionary power of the Court. 
 It also  opined  that
while the power under Section 320 CrPC is cribbed,  cabined  and  confined,
the power under Section 482 CrPC is vast, unparallel  and  paramount.    On
facts the High Court opined that it was a case where the fight between  the
parties had occurred on the spur and heat of the moment and the assault was
more a crime ‘against an individual’, rather than ‘against the  society  at
large’.    The High Court held as follows:
      “In the present case, the fight occurred at the spur of the moment  in
      the heat of the moment.  According to the prosecution, both the  sides
      were verbally fighting  when  alleged,  the  appellants  struck  Abdul
      Rashid (PW-3).  The assault was more a  crime  against  an  individual
      than against the society at large.  Admittedly, both the parties  have
      entered into a compromise.   They  have  resolved  their  differences.
      Thus, it would be in the interest of justice to allow the appeal.”

5.    The High Court felt  that  since  the  parties  had  entered  into  a
compromise and resolved their disputes and differences, it would be in  the
interest of justice to allow the appeal.    Consequently,  the  appeal  was
allowed and the  accused  persons  were  acquitted  of  the  offence  under
Sections 307 read with 34 IPC.   =          

Criminal  law  is
designed as a mechanism for achieving social control and its purpose is the
regulation of conduct and activities within the society.  
Why  Section  307
IPC is held to be non-compoundable, because the Code has  identified  which
conduct should be brought within the ambit  of  non-compoundable  offences.
Such provisions are not meant, just to  protect  the  individual,  but  the
society as a whole.  
High Court was not right in thinking that it was  only
an injury to the person and since the  accused  persons  had  received  the
monetary compensation and settled the matter, the crime as against them was
wiped off.  
Criminal justice system has a larger objective to achieve, that
is safety and protection of the people at large and it would  be  a  lesson
not only to the offender, but to the individuals  at  large  so  that  such
crimes would not be  committed  by  any  one  and  money  would  not  be  a
substitute for the crime committed against the society.  Taking  a  lenient
view on a serious offence like the present, will leave a  wrong  impression
about the criminal justice system and will encourage further criminal acts,
which will endanger the peaceful co-existence and welfare of the society at
large.

16.   We are, therefore, inclined to allow this appeal and  set  aside  the
judgment of the High Court.   The  High  Court  was  carried  away  by  the
settlement and has not  examined  the  matter  on  merits,  hence,  we  are
inclined to direct the High Court to take back the appeal to its  file  and
decide the appeal on merits.  Let the High  Court  dispose  of  the  appeal
within six months.  Ordered accordingly.


                                                 REPORTABLE
                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION
                      CRIMINAL APPEAL NO. 2018 OF 2013
                [Arising out of SLP (Crl.) No. 9278 of 2012]


State of Rajasthan                           .. Appellant
                                   Versus
Shambhu Kewat and Another               .. Respondents

                               J U D G M E N T

K. S. Radhakrishnan, J.

1.    Leave granted.


2.    Respondents herein were charge-sheeted  for  the  offences  punishable
under Sections 307, 323, 325, 427 read  with  Section  34  IPC.   They  were
tried before the Court of Additional  Sessions  Judge,  Fast  Track  No.  1,
Kota, Rajasthan.  From the  side  of  the  prosecution,  PWs  1  to  5  were
examined and Exh. P1- P12 were produced.  From the side of  defence,  second
accused was examined  as  DW1.  
The  Sessions  Court,  after  hearing  the
parties and  considering  the  oral  and  documentary  evidence,  found  the
accused persons guilty of the offence  punishable  under  Section  307  read
with Section 34 IPC, but acquitted them of the rest  of  the  charges,  vide
its order  dated  9.7.2009.  
Later,  the  accused  persons  were  heard  on
sentence, and they   stated that they are not  habitual  criminals  and  are
aged 26 and 28 years, respectively.  Further, it was pointed out  that  they
are poor labourers married and have children.  Further, it was also  pointed
out that the injuries were caused due to sudden provocation,  and  were  not
pre-meditated.    After hearing the accused and the prosecution,  the  trial
Court, on sentence, passed the following order:
      “Heard both the parties.  On the basis of the above arguments, perused
      the case file.  Though no criminal record has  been  produced  by  the
      Prosecution against the accused,  nor  has  any  arguments  about  the
      habitual criminal, however, from the evidence came on file, this  fact
      has been established that accused Banwari and Shambhu had been  taking
      the goods on credit from the complainant Abdul Rashid, also on the day
      of incident, had come to take goods on credit and due  to  arrears  of
      money, he had refused to give the goods on credit.   Then  they  again
      came back at the place of incident.  Thereafter about 10 minutes  both
      came with iron rod and a strip of iron like sword in a planned manner,
      and both together made a murderous attack on Abdul Rashid.  By causing
      fatal injury on the head after fracture of piece of bone  of  head  of
      Abdul Rashid, went inside the brain.  The doctor performed the surgery
      and taken out.  Thereafter it cannot be  said  that  the  accused  has
      injured in ignorance, suddenly  on  instigation  and  cause  the  said
      injury to Abdul Rashid and for committing the act by them,  they  have
      no intention or purpose for committing such act.  Case  under  Section
      307 IPC has been proved against the accused beyond  doubt.   Therefore
      in this situation lenient view cannot be adopted against the  accused.
      The Hon’ble Supreme Court has shown this intent in several cases  that
      if the leniency is given to the accused, then the criminal  people  in
      the society will be encouraged.  The accused had  without  any  reason
      has injured the complainant  sitting  in  his  shop.   This  has  been
      witnessed by other people of the society sitting  in  shop.   Adopting
      lenient view with the accused,  faith  of  the  other  people  of  the
      society will go from justice.  In such situation, as per the direction
      given by the Hon’ble Supreme Court, the accused are punished as under:


                             ORDER OF SENTENCE:
      Therefore accused Shambhu son of Babu Lal and accused Banwari lal  son
      of Babu Lal Kevat, residents  of  Iqbal  Chowk,  Sakatpura,  Kota  are
      declared acquitted from the charge under Section 427 IPC and both  the
      accused are convicted and are  sentenced  for  10-10  (Ten-Ten)  years
      rigorous imprisonment and fine of Rs.5000-5000/- (Rupees five thousand
      only) for the charge under Section 307 read with Section 34 IPC.    In
      the event of committing default in  the  payment  of  fine  will  face
      additional simple imprisonment of 3-3 months.   The  period  spent  in
      police/judicial custody by the accused will be adjusted in the  period
      of original sentence  under  the  provision  of  Section  428  Cr.P.C.
      Warrant of sentence be prepared.  Recovered property in the case, iron
      road and strip of  iron  like  sword  be  destroyed  after  expiry  of
      limitation of appeal as per  directions.   Copy  of  the  judgment  be
      supplied to the accused free of cost.”

3.    Aggrieved by the  order  of  conviction  and  sentence,  the  accused
persons approached the High Court by filing S.B. Criminal Appeal No. 825 of
2009.    When  the  appeal  came  up  for  hearing,  on   16.11.2011,   the
complainant, Abdul Rashid who was present in the court,    stated  that  he
and the accused persons had entered into a compromise and,  based  on  that
compromise, he had  received  the  compensation  amount  from  the  accused
persons for the injuries caused to him.   Consequently, it was pointed  out
that he did not wish to pursue the appeal.  Learned counsel  appearing  for
the complainant submitted before the High Court that since the parties  had
buried  the  differences  and  since  offence  committed  was  ‘against  an
individual’, rather than ‘against the State’, no fruitful purpose would  be
served by keeping the accused persons behind the bars, and  hence,  it  was
requested that the case be compounded and the appeal be allowed.

4.    We have examined the reasons stated by the High Court for acceding to
that request.  The High Court examined the scope of Sections  482  and  320
CrPC and expressed  the  view  that  there  are  certain  similarities  and
differences between compounding  and  quashing  a  case  on  the  basis  of
compromise and hence, quashing of a criminal proceeding upon  a  compromise
is well within the discretionary power of the Court. 
 It also  opined  that
while the power under Section 320 CrPC is cribbed,  cabined  and  confined,
the power under Section 482 CrPC is vast, unparallel  and  paramount.    On
facts the High Court opined that it was a case where the fight between  the
parties had occurred on the spur and heat of the moment and the assault was
more a crime ‘against an individual’, rather than ‘against the  society  at
large’.    The High Court held as follows:
      “In the present case, the fight occurred at the spur of the moment  in
      the heat of the moment.  According to the prosecution, both the  sides
      were verbally fighting  when  alleged,  the  appellants  struck  Abdul
      Rashid (PW-3).  The assault was more a  crime  against  an  individual
      than against the society at large.  Admittedly, both the parties  have
      entered into a compromise.   They  have  resolved  their  differences.
      Thus, it would be in the interest of justice to allow the appeal.”

5.    The High Court felt  that  since  the  parties  had  entered  into  a
compromise and resolved their disputes and differences, it would be in  the
interest of justice to allow the appeal.    Consequently,  the  appeal  was
allowed and the  accused  persons  were  acquitted  of  the  offence  under
Sections 307 read with 34 IPC.
Aggrieved by the same, this appeal has been
preferred.
6.    Learned counsel appearing for the State submitted that the High Court
has completely misread and misunderstood the various principles  laid  down
by this Court in Gian Singh v. State of Punjab and another  (2012)  10  SCC
regarding the scope and ambit of Sections 482 and 320 CrPC as well  as  the
powers conferred on  the  criminal  Court  to  quash  criminal  proceedings
involved in a non-compoundable offence, in view of the  compromise  arrived
at between the parties.  The various guidelines laid  down  by  this  Court
were also overlooked.     Learned counsel  also  submitted  that  the  High
Court has also committed an error in holding that  the  offence  which  has
been proved was merely  an  offence  against  an  individual,  rather  than
against the State.   Learned counsel submitted that the Sessions Court  had
correctly noticed the nature of injuries and rightly came to the conclusion
that the accused had committed injuries not due to sudden provocation,  but
it was a premeditated incident and that the trial Court has rightly awarded
the sentence of 10 years rigorous imprisonment for the  offence  punishable
under Section 307 IPC.

7.    Learned counsel appearing for the respondents,  on  the  other  hand,
contended that the parties had entered into a compromise and, on the  basis
of the compromise, the accused persons paid a  substantial  amount  to  the
complainant for the injuries caused to him and taking note of the fact that
the alleged crime was committed on the spur  of  the  moment  without  pre-
meditation, the High Court was justified in  compounding  the  offence  and
acquitting the accused persons.

8.    We may point out that in Gian Singh (supra), this Court has held that
quashing of offence or criminal proceedings on  the  ground  of  settlement
between an offender and the victim is not the same thing as compounding  of
offences.  This Court also held that the power of compounding  of  offences
conferred on a Court under Section 320 CrPC is  materially  different  from
the power conferred under Section 482 for quashing of criminal  proceedings
by the High Court.  In compounding of offences, power of a  criminal  court
is circumscribed by the provisions contained in Section 320  CrPC  and  the
Court is guided solely and squarely thereby, while, on the other hand,  the
formation of opinion by the High Court for quashing a  criminal  proceeding
or criminal complaint under Section 482 CrPC is guided by the  material  on
record as to whether the ends of justice would  justify  such  exercise  of
power, although the ultimate consequence may be acquittal or  dismissal  of
indictment.

9.    The Court also opined that the power of the High Court in quashing  a
criminal proceeding or FIR    or complaint  in  exercise  of  its  inherent
jurisdiction is distinct and different from the power given to  a  criminal
court for compounding the offences under  Section  320  CrPC.   This  Court
further opined that the inherent  power  is  of  wide  plentitude  with  no
statutory limitation but it has to be  exercised  in  accordance  with  the
guidelines engrafted in such power, namely,  (i)  to  secure  the  ends  of
justice, or (ii) to prevent abuse of the process of any court.  This  Court
also cautioned that while exercising the power of compounding the  offence,
the court must have due regard to the nature and gravity of the crime.

10.   We notice, in this case,  admittedly,  the  offence  committed  under
Section 307 IPC is not compoundable.  In Ishwar  Singh  v.  State  of  M.P.
(2008) 15 SCC 667, the accused was alleged to  have  committed  an  offence
punishable under Section 307 IPC and, with reference to Section  320  CrPC,
it was held that Section 307 was not a compoundable offence and  there  was
express bar in Section 320 that no offence shall be compounded if it is not
compoundable under the Code.  In Gulab Das and others v.  State  of  Madhya
Pradesh (2011) 10 SCC 765, a different note was struck by this  Court,  but
certain reasons for compounding the offence  under  Section  307  IPC  were
stated.   In that case, this Court noticed  that  the  incident  had  taken
place in the year 1994 and the parties were related to each  other.    Both
the accused persons, at the time of  the  incident,  were  in  their  20’s.
Further, it was also noticed that a cross case was registered  against  the
complainant also in which he was convicted and sentenced.  Further, it  was
also noticed that the accused persons had also undergone certain period  of
sentence.  The  case  which  was  settled  between  the  parties,  involved
offences punishable under Section 325 read with Section 34 and  also  under
Section 323 IPC.   It was in such circumstances that the  Court  felt  that
the settlement arrived at between the parties was a sensible once so as  to
give quietus to the controversy.  The Court while upholding the conviction,
reduced the sentence awarded to the accused to the period they had  already
undergone.

11.   In Rajendra Harakchand Bhandari and others v.  State  of  Maharashtra
and another (2011) 13 SCC 311, this Court had an occasion to  consider  the
question whether an offence under Section 307 IPC could  be  compounded  in
terms  of  the  compromise  reached  at  between  the  parties.    It   was
categorically  held  that  the  offence  under  Section  307  IPC  is   not
compoundable in terms of Section 320(9) CrPC and that compounding  of  such
an offence was out of question.   Further, taking note of the fact that the
incident had occurred in the year 1991 and it was  almost  20  years  since
then, and that the accused persons were agriculturists  by  occupation  and
had no previous criminal background and there had been reconciliation among
the parties, the Court held that the ends of justice would be  met  if  the
substantive sentence awarded to  the  accused  be  reduced  to  the  period
already undergone.

12.   We find, in this case, such a situation  does  not  arise.    In  the
instant case, the incident had occurred on  30.10.2008.   The  trial  Court
held that the accused persons, with common intention, went to the  shop  of
the injured Abdul Rashid on that day armed with iron rod  and  a  strip  of
iron and, in furtherance of their  common  intention,  had  caused  serious
injuries on the body of Abdul Rashid, of which injury number 4 was  on  his
head, which was of a serious nature.
13.   Dr. Rakesh Sharma, PW5, had stated that out of the injuries caused to
Abdul Rashid, injury no. 4 was an injury on the head and  that  injury  was
“grievous and fatal for life”.    PW8, Dr. Uday Bhomik, also opined that  a
grievous injury was caused on the head of Abdul Rashid.  Dr. Uday conducted
the operation on injuries of Abdul Rashid as  a  Neuro  Surgeon  and  fully
supported the opinion expressed by PW 5 Dr. Rakesh Sharma that injury no. 4
was “grievous and fatal for life”.

14.   We notice that the gravity of the injuries was taken note of  by  the
Sessions Court and it  had  awarded  the  sentence  of  10  years  rigorous
imprisonment for the offence punishable under Section 307 IPC, but  not  by
the High Court.   The High Court  has  completely  overlooked  the  various
principles laid down by this Court in Gian Singh (supra), and has committed
a mistake in taking the view that, the injuries were caused on the body  of
Abdul Rashid in a fight occurred at the spur and the heat of the moment. It
has been categorically held by this Court in Gian Singh  (supra)  that  the
Court, while exercising the power under Section 482, must have “due  regard
to the nature and gravity of the crime” and “the  societal  impact”.   Both
these aspects were completely overlooked by the High Court. The High  Court
in a cursory manner, without application  of  mind,  blindly  accepted  the
statement  of  the  parties  that  they  had  settled  their  disputes  and
differences and took the view that it was a crime against “an  individual”,
rather than against “the society at large”.

15.   We are not prepared to say  that  the  crime  alleged  to  have  been
committed by the accused persons was a crime against an individual, on  the
other hand it was a crime against the society at large.  
Criminal  law  is
designed as a mechanism for achieving social control and its purpose is the
regulation of conduct and activities within the society.  
Why  Section  307
IPC is held to be non-compoundable, because the Code has  identified  which
conduct should be brought within the ambit  of  non-compoundable  offences.
Such provisions are not meant, just to  protect  the  individual,  but  the
society as a whole.  
High Court was not right in thinking that it was  only
an injury to the person and since the  accused  persons  had  received  the
monetary compensation and settled the matter, the crime as against them was
wiped off.  
Criminal justice system has a larger objective to achieve, that
is safety and protection of the people at large and it would  be  a  lesson
not only to the offender, but to the individuals  at  large  so  that  such
crimes would not be  committed  by  any  one  and  money  would  not  be  a
substitute for the crime committed against the society.  Taking  a  lenient
view on a serious offence like the present, will leave a  wrong  impression
about the criminal justice system and will encourage further criminal acts,
which will endanger the peaceful co-existence and welfare of the society at
large.

16.   We are, therefore, inclined to allow this appeal and  set  aside  the
judgment of the High Court.   The  High  Court  was  carried  away  by  the
settlement and has not  examined  the  matter  on  merits,  hence,  we  are
inclined to direct the High Court to take back the appeal to its  file  and
decide the appeal on merits.  Let the High  Court  dispose  of  the  appeal
within six months.  Ordered accordingly.

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






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