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Wednesday, September 7, 2011

Acquittal in the criminal case shall have no bearing or relevance to the facts of the departmental proceedings as the standard of proof in both the cases are totally different. In a criminal case, the prosecution has to prove the criminal case beyond all reasonable doubt whereas in a departmental proceedings, the department has to prove only preponderance of probabilities. In the present case, we find that the department has been able to prove the case on the standard of preponderance of probabilities.


                          IN THE SUPREME COURT OF INDIA    REPORTABLE
                           CIVIL APPELLATE JURISDICTION

                      CIVIL APPEAL NO. 7643 OF 2011
               (Arising out of SLP(C) No(s).14722/2004)




SAMAR BAHADUR SINGH                               Appellant(s)

                 VERSUS

STATE OF U.P. & ORS.                              Respondent(s)




                                   O R D E R




1.      Delay in filing rejoinder is condoned . 

2.      Leave granted. 

3.      This   appeal   is   directed   against   the   judgment   and   order 

dated  13.02.2004  passed  by  the  Division  Bench  of  the  Allahabad 

High  Court  dismissing  the  writ  petition  filed  by  the  appellant 

against   the   judgment   and   order   passed   by   the   State   Public 

Service   Tribunal,   U.P.,   which   upheld   the   order   of   dismissal 

passed against the appellant by the respondents on 11.02.1993.



4.      The   appellant   herein   was   employed   as   a   Constable   in   the 

Provincial   Armed   Constabulary   (hereinafter   referred   to   as 

'P.A.C.')on   15.11.1978.     He   was   posted   in   IV   Bn.   P.A.C., 

Allahabad.  On 27.10.1991, he was unauthorisedly absent from the 

Battalion   Headquarter   and   on   that   day   in   the   evening   he   along 

with   one   of   his   friends   grabbed   one   bottle   of   liquor   from   the 

wine shop forcibly and also threatened them.  With regard to the 

aforesaid   incident,   a   criminal   case   was   also   registered   on   the 

basis of a complaint filed by the salesman of the wine shop, Sh. 

Rajan Lal.  The appellant was also medically examined during the 

course   of   which   he   was   found   to   be   under   the   influence   of 

liquor.  The Doctor has opined that he had consumed alcohol, but 

was not intoxicated.  




5.      The   appellant   was   placed   under   suspension   and   a 

departmental proceeding was initiated against him.  A memorandum 

of charges was issued to the appellant as against which he filed 

his reply.   In the said departmental inquiry instituted against 

the   appellant,   an   Inquiry   Officer   was   appointed   who   conducted 

the inquiry and on completion of the said inquiry, submitted his 

report   finding   the   appellant   guilty   of   the   charges   framed 

against him. 




6.      Consequent   upon   filing   of   the   aforesaid   inquiry   report, 

the   Disciplinary   Authority,   after   complying   with   all   the 

formalities   dismissed   the   appellant   from   service   by   issuing   an 

order dated 11.02.1993.  




7.      Being aggrieved by the said order, the appellant filed an 

appeal   which   was   considered   by   the   Appellate   Authority   and   by 

order dated 30.06.1993, the aforesaid appeal was dismissed. 




8.      The appellant being aggrieved filed a petition before the 

tribunal which was also dismissed.   Consequently, the appellant 

filed   the   aforesaid   writ   petition,   which   was   dismissed   and 

therefore, he filed the present appeal, on which we have heard 

the learned counsel appearing for the parties.




9.      Counsel appearing for the appellant has submitted before 

us   that   a   criminal   case   was   also   instituted   for   the   aforesaid 

incident   in   which   he   was   acquitted   and   therefore,   in   the 

departmental proceeding also which was initiated he should also 

have been acquitted and the same should have been allowed to be 

ended in his favour.  He further submits that in any case it has 

come in evidence that the appellant was advised to take medicine 

which   he   had   taken   and,   therefore,   there   was   some   smell   of 

liquor   from   the   medicine   when   a   medical   check-up   was   done. 

Relying on the same, counsel submits that the entire charge is 

concocted and therefore, he is required to be held not guilty of 

the   charge.     The   next   submission   of   the   counsel   appearing   for 

the appellant is that the punishment given to the appellant is 

disproportionate to the charges levelled against him.  




10.     We   have   considered   all   the   aforesaid   submissions   in   the 

light   of   the   records   that   are   available   with   us.     The   medical 

report   which   is   placed   on   record   indicates   that   the   appellant 

had consumed alcohol, but he was not intoxicated.  The appellant 

was missing from the headquarters on 27.10.1991 from the morning 

and   he   was   caught   in   the   case   registered   under   Section   392 

I.P.C. in the evening.   The appellant wishes to make a defence 

that he was advised to take medicine but the prescription which 

is placed in the departmental proceedings does not indicate that 

any medicine was prescribed in that prescription.  The appellant 

was arrested in the criminal case in connection with stealing of 

a   bottle   of   foreign   liquor   and   even   during   that   time   he   had 

consumed alcohol prior to the incident.   These facts have been 

brought out in the inquiry proceedings initiated against him in 

which   the   appellant   did   not   participate.     Therefore,   whatever 

allegations   have   been   brought   against   him,   have   been   proved   by 

placing   cogent   materials   on   record,   which   go   unrebutted   due   to 

his absence in the proceedings.  We also find that the appellant 

has   been   charged   on   the   ground   of   negligence,   deriliction   of 

duty and consuming liquor.  The aforesaid facts are found proved 

in the departmental proceedings. 




11.     Acquittal   in   the   criminal   case   shall   have   no   bearing   or 

relevance   to   the   facts   of   the   departmental   proceedings   as   the 

standard of proof in both the cases are totally different.  In a 

criminal   case,   the   prosecution   has   to   prove   the   criminal   case 

beyond   all   reasonable   doubt   whereas   in   a   departmental 

proceedings,   the   department   has   to   prove   only   preponderance   of 

probabilities.  In the present case, we find that the department 

has been able to prove the case on the standard of preponderance 

of   probabilities.     Therefore,   the   submissions   of   the   counsel 

appearing for the appellant are found to be without any merit. 

12.      Now,   the   issue   is   whether   punishment   awarded   to   the 

appellant   is   disproportionate   to   the   offence   alleged.     The 

appellant   belongs   to   a   disciplinary   force   and   the   members   of 

such a force is required to maintain discipline and to act in a 

befitting manner in public.  Instead of that, he was found under 

the influence of liquor and then indulged himself in an offence. 

Be   that   as   it   may,   we   are   not   inclined   to   interfere   with   the 

satisfaction   arrived   at   by   the   disciplinary   authority   that   in 

the present case punishment of dismissal from service is called 

for.   The   punishment   awarded,   in   our   considered   opinion,   cannot 

be   said   to   be   shocking   to   our   conscience   and,   therefore,   the 

aforesaid punishment awarded does not call for any interference.




13.      In   that   view   of   the   mater,   we   find   no   merit   in   this 

appeal,   which   is   dismissed,   but   leaving   the   parties   to   bear 

their own costs. 




                                             ......................J
                                             (Dr. MUKUNDAKAM SHARMA)




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

NEW DELHI
SEPTEMBER 05, 2011