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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

 

English: The supreme court of india. Taken abo...

English: The supreme court of india. Taken about 170 m from the main building outside the perimeter wall (Photo credit: Wikipedia)

 

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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