Shashi Bhusan Prasad vs Inspector General, Cisf

REPORTABLE IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO(s). 7130 OF 2009

SHASHI BHUSAN PRASAD ….APPELLANT(S)

VERSUS

INSPECTOR GENERAL CENTRAL INDUSTRIAL SECURITY FORCE & ORS. ….RESPONDENT(S)

JUDGMENT

Rastogi, J.

1. This appeal is directed against the final judgment and order

dated 17th July, 2008 passed by the High Court of Orissa

dismissing the writ petition filed by the appellant.

2. The brief seminal facts which may be relevant for Signature Not Verified

consideration of the present appeal are that while serving as Digitally signed by VISHAL ANAND Date: 2019.08.01 16:33:30 IST Reason:

Constable in Central Industrial Security Force (in short “CISF”)

1 Unit, Rourkela Steel Plant, Rourkela, a criminal case was

instituted against the appellant in Plantsite P.S. Case No. 378 of

1992 under Section 25(1) of the Arms Act and he was arrested on

30th November, 1992 on the allegation that he had provided a

country made revolver to Subash Chandra Agarwalla, who

murdered his aunt with it, giving rise to Sessions Trial No.

188/41 of 1993. At the same time, for a gross misconduct being

committed by him in discharge of his duties, disciplinary

proceedings were initiated against him by serving a

Memorandum along with the charge­sheet dated 9th February,

1993 under Rule 34 of CISF Rules, 1969.

3. After holding disciplinary inquiry in terms of the procedure

prescribed under the scheme of Rules, 1969, the Inquiry Officer

after due compliance of the principles of natural justice, recorded

a finding of guilt and the charge against the delinquent appellant

stood proved as it reveals from the report of Inquiry(Annexure P­4

of the paper book) dated 27 th April, 1994. After copy of the

inquiry report was made available to the appellant and after

affording him an opportunity of hearing, the Disciplinary

Authority concurred with the finding recorded by the Inquiry

2 Officer and while upholding the guilt inflicted him with a penalty

of dismissal from service vide Order dated 21 st May, 1994. It

may be relevant to note that the Sessions Trial No. 188/41 of

1993 was also proceeded against him and it reveals from the

record that since the material prosecution witnesses stood

hostile, he was acquitted by the competent Court of jurisdiction

vide judgment dated 12th September, 1995.

4. Being dissatisfied with the order of dismissal passed by the

Disciplinary Authority, the appellant preferred departmental

appeal primarily on the ground that since he has been acquitted

in the criminal case which is based on the same set of facts and

evidence, the order of dismissal passed by the Disciplinary

Authority is not legally sustainable. The appeal was rejected by

the appellate authority vide order dated 24 th April, 1996 which

was further assailed before the Revisional Authority that also met

with the fate of its dismissal. That came to be challenged in a

Writ Petition before the High Court under Articles 226 and 227 of

the Constitution of India. The High Court of Orissa, on appraisal

of the material on record and taking note of the submission

alleged by the appellant of his acquittal in the criminal trial vide

3 judgment dated 12th September, 1995 still had faced the order of

dismissal by the Disciplinary Authority being not sustainable but

the High Court after examining in totality the facts and

circumstances of the case, dismissed the writ petition vide

judgment dated 17th July, 2008 which is a subject matter of

appeal before us.

5. The main thrust of submission of learned counsel for the

appellant is that since both the criminal/departmental

proceedings were based on same set of facts and evidence, and

after he has been acquitted by the Court of competent

jurisdiction vide judgment dated 12th September, 1995, the

Disciplinary/Appellate Authority was under an obligation to give

precedence of the judicial proceedings and in the given

circumstances, inflicting penalty of dismissal from service based

on the report of inquiry was not legally sustainable and further

submitted that the error has not only been committed by the

departmental authorities but also by the High Court in not

appreciating the submission made by the appellant in its right

earnest and in the given circumstances, the judgment impugned

dated 17th July, 2008 deserves to be interfered by this Court.

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6. In support of his submission, learned counsel for the

appellant has placed reliance on the judgment of this Court

reported in M. Paul Anthony Vs. Bharat Gold Mines Ltd. and

Ors.1 and G.M. Tank Vs. State of Gujarat and Ors.2

7. Per contra, learned counsel for the respondents, on the

other hand, while supporting the finding recorded by the High

Court under the impugned judgment dated 17 th July, 2008

further submits that the charge in a departmental inquiry and in

the criminal case stood against the appellant were totally

different, in the criminal case he was charged for committing an

offence under Section 25(1)(a) of the Arms Act, while in the

departmental inquiry, the charge was of a delinquency which he

committed in discharge of his duties in handing over an

unlicensed fire arm with ammunitions(a country made revolver)

concealed in a brief case at the residence of Constable S.P. Patel

on 19th November, 1992 which has facilitated Subash Chandra

Agarwalla (accused) in a criminal case against in committing an

1 1999(3) SCC 679 2 2006(5) SCC 446

5 offence under Section 302/392 IPC and under Section 27 of the

Arms Act.

8. According to the learned counsel, both the allegations are

based on different sets of facts and evidence having no co­

relationship and once the appellant has been held guilty in a

disciplinary inquiry has been rightly punished with the penalty of

dismissal from service, having no nexus with the judgment of

acquittal passed by the Court of competent jurisdiction.

9. Learned counsel further submits that what being urged by

the appellant has been examined by the High Court and this

being the settled principles of law that in a disciplinary inquiry

one has to proceed on the “preponderance of probability” whereas

in the criminal case, the charge is to be “proved beyond

reasonable doubt” being based on two sets of fundamental

principles which has been examined by the High Court in extenso

needs no interference by this Court.

10. We have heard learned counsel for the parties and with

their assistance perused the material available on record.

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11. At the outset, it may be apposite to take note of the Article

of charge which was imputed against him in the departmental

proceedings: ­

“No : 884481265 Constable Sashi Bhushan Prasad is charged with gross misconduct and serious breach of discipline unbecoming of a member of the armed force in that he handed over an unlicensed fire arm with ammunitions (a country made revolver) concealed in a brief case at the residence of No. 88441220 Constable S.P. Patel on 19.11.92 in the evening by suppressing the fact that the same was used in a case of murder in the same day.”

12. Disciplinary inquiry was held against him under Rule 34 of

CISF Rules, 1969 for the gross misconduct and serious breach

committed by him in discharge of his official duties in handing

over unlicensed fire arm with ammunitions (a country made

revolver) concealed in a brief case at the residence of Constable

S.P. Patel on 19th November, 1992 and in support of the charge,

the statement of PW­5 Smt. Laxmi Patel w/o Constable S.P. Patel

was recorded. In the course of disciplinary inquiry, she had

categorically stated that the appellant Constable came to her

house in the evening and handed over small brief case to her for

keeping it in the house. When she asked the appellant at the

time of handing over of the brief case as to what it contained, the

7 appellant replied that it contained clothes. When her husband

came back from duty, she told him of the brief case handed over

to her by the appellant for keeping it in the house. Her husband

PW­4 Constable S.P. Patel also narrated the fact which was

reported by his wife PW­5 Laxmi Patel when he returned back on

19th November, 1992.

13. There was further allegation against him that he had

suppressed the fact that the country made revolver was used in

the murder case the same day. After an independent inquiry was

conducted by the Inquiry Officer the charge stood proved against

him and it was confirmed by the Disciplinary Authority, after

affording him an opportunity of hearing, and being a serious

misconduct on the part of the appellant, which he had committed

in discharge of duties, penalty of dismissal was inflicted upon

him, after due compliance of the principles of natural justice in

terms of the scheme of CISF Rules 1969 and that came to be

confirmed on rejection of his appeal/revision by the

Appellate/Revisional Authority and also by the High Court on

dismissal of the writ petition vide judgment dated 17 th July,

2008.

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14. At the same time, in the criminal case which was instituted

against him, the charge against the appellant was “Accused

Sashi bhusan Prasad stands charged U/s 25(1)(a) of the Arms

Act.”

15. So far as the charge in the departmental inquiry and the

charge in the criminal case is concerned, indubitably it was

different having been inquired on an independent set of facts and

evidence in a departmental/judicial proceedings. That apart, the

fact which reveal from the judgment of acquittal passed by the

Court of competent jurisdiction dated 12 th September, 1995 that

Shankar Prasad Patel and his wife Laxmi Patel had appeared in a

criminal case as PW­4 and PW­5 and both were declared hostile.

Apart from that, the other material witnesses were also declared

hostile and that was the reason for which the Court came to the

conclusion that the prosecution failed to prove the charge against

him while acquitting him vide judgment dated 12th September,

1995.

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16. The facts noticed by us which have been inquired in a

disciplinary inquiry and in the judicial proceedings indisputedly

are based on different allegations and the set of evidence not

based on the same facts and circumstances and in the given

situation, the very submission made by the appellant of taking

the benefit of acquittal in a judicial proceedings instituted against

him on the plea of having nexus with the disciplinary inquiry

loses its foundation.

17. The scope of departmental enquiry and judicial proceedings

and the effect of acquittal by a criminal Court has been examined

by a three Judge Bench of this Court in Depot Manager A.P.

State Road Transport Corporation Vs. Mohd. Yousuf Miya

and Others3. The relevant para is as under:­

“…The purpose of departmental enquiry and of prosecution are two different and distinct aspects. The criminal prosecution is launched for an offence for violation of a duty, the offender owes to the society or for breach of which law has provided that the offender shall make satisfaction to the public. So crime is an act of commission in violation of law or of omission of public duty. The departmental enquiry is to maintain discipline in the service and efficiency of public service. It would, therefore, be expedient that the disciplinary proceedings are conducted and completed as expeditiously as possible. It is not, therefore, desirable to lay down

3 1997(2) SCC 699

10 any guidelines as inflexible rules in which the departmental proceedings may or may not be stayed pending trial in criminal case against the delinquent officer. Each case requires to be considered in the backdrop of its own facts and circumstances. There would be no bar to proceed simultaneously with departmental enquiry and trial of a criminal case unless the charge in the criminal trial is of grave nature involving complicated questions of fact and law. Offence generally implies infringement of public (sic duty), as distinguished from mere private rights punishable under criminal law. When trial for criminal offence is conducted it should be in accordance with proof of the offence as per the evidence defined under the provisions of the Evidence Act. Converse is the case of departmental enquiry. The enquiry in a departmental proceedings relates to conduct or breach of duty of the delinquent officer to punish him for his misconduct defined under the relevant statutory rules or law. That the strict standard of proof or applicability of the Evidence Act stands excluded is a settled legal position. The enquiry in the departmental proceedings relates to the conduct of the delinquent officer and proof in that behalf is not as high as in an offence in criminal charge. It is seen that invariably the departmental enquiry has to be conducted expeditiously so as to effectuate efficiency in public administration and the criminal trial will take its own course. The nature of evidence in criminal trial is entirely different from the departmental proceedings. In the former, prosecution is to prove its case beyond reasonable doubt on the touchstone of human conduct. The standard of proof in the departmental proceedings is not the same as of the criminal trial. The evidence also is different from the standard point of the Evidence Act. The evidence required in the departmental enquiry is not regulated by the Evidence Act. Under these circumstances, what is required to be seen is whether the departmental enquiry would seriously prejudice the delinquent in his defence at the trial in a criminal case. It is always a question of fact to be considered in each case depending on its own facts and circumstances. In this case, we have seen that the charge is failure to anticipate the accident and prevention thereof. It has nothing to do with the culpability of the offence

11 under Sections 304­A and 338, IPC. Under these circumstances, the High Court was not right in staying the proceedings.” (Emphasis supplied)

18. The exposition has been further affirmed by a three Judge

Bench of this Court in Ajit Kumar Nag Vs. General Manager

(PJ), Indian Oil Corporation Limited, Haldia and Others 4,

this Court held as under: ­

“As far as acquittal of the appellant by a criminal court is concerned, in our opinion, the said order does not preclude the Corporation from taking an action if it is otherwise permissible. In our judgment, the law is fairly well settled. Acquittal by a criminal court would not debar an employer from exercising power in accordance with the Rules and Regulations in force. The two proceedings, criminal and departmental, are entirely different. They operate in different fields and have different objectives. Whereas the object of criminal trial is to inflict appropriate punishment on the offender, the purpose of enquiry proceedings is to deal with the delinquent departmentally and to impose penalty in accordance with the service rules. In a criminal trial, incriminating statement made by the accused in certain circumstances or before certain officers is totally inadmissible in evidence. Such strict rules of evidence and procedure would not apply to departmental proceedings. The degree of proof which is necessary to order a conviction is different from the degree of proof necessary to record the commission of delinquency. The rule relating to appreciation of evidence in the two proceedings is also not similar. In criminal law, burden of proof is on the prosecution and unless the prosecution is able to prove the guilt of the accused “beyond reasonable doubt”, he cannot be convicted by a court of law. In a departmental enquiry, on the other

4 2005(7) SCC 764

12 hand, penalty can be imposed on the delinquent officer on a finding recorded on the basis of “preponderance of probability”. Acquittal of the appellant by a Judicial Magistrate, therefore, does not ipso facto absolve him from the liability under the disciplinary jurisdiction of the Corporation. We are, therefore, unable to uphold the contention of the appellant that since he was acquitted by a criminal court, the impugned order dismissing him from service deserves to be quashed and set aside.”

(Emphasis supplied)

19. We are in full agreement with the exposition of law laid

down by this Court and it is fairly well settled that two

proceedings criminal and departmental are entirely different.

They operate in different fields and have different objectives.

Whereas the object of criminal trial is to inflict appropriate

punishment on an offender, the purpose of enquiry proceedings

is to deal with the delinquent departmentally and to impose

penalty in accordance with the service Rules. The degree of proof

which is necessary to order a conviction is different from the

degree of proof necessary to record the commission of

delinquency. Even the rule relating to appreciation of evidence in

the two proceedings is also not similar. In criminal law, burden

of proof is on the prosecution and unless the prosecution is able

to prove the guilt of the accused beyond reasonable doubt, he

cannot be convicted by a Court of law whereas in the

13 departmental enquiry, penalty can be imposed on the delinquent

on a finding recorded on the basis of ‘preponderance of

probability’. Acquittal by the Court of competent jurisdiction in a

judicial proceeding does not ipso facto absolve the delinquent

from the liability under the disciplinary jurisdiction of the

authority. This what has been considered by the High Court in

the impugned judgment in detail and needs no interference by

this Court.

20. The judgment in M. Paul Anthony case (supra) on which

the learned counsel for the appellant has placed reliance was a

case where a question arose for consideration as to whether the

departmental proceedings and proceedings in a criminal case on

the basis of same sets of facts and evidence can be continued

simultaneously and this Court answered in para 22 as under:­

“The conclusions which are deducible from various decisions of this Court referred to above are:

(i) Departmental proceedings and proceedings in a criminal case can proceed simultaneously as there is no bar in their being conducted simultaneously, though separately.

(ii) If the departmental proceedings and the criminal case are based on identical and similar set of facts and the charge in the criminal case against the

14 delinquent employee is of a grave nature which involves complicated questions of law and fact, it would be desirable to stay the departmental proceedings till the conclusion of the criminal case.

(iii) Whether the nature of a charge in a criminal case is grave and whether complicated questions of fact and law are involved in that case, will depend upon the nature of offence, the nature of the case launched against the employee on the basis of evidence and material collected against him during investigation or as reflected in the charge­sheet.

(iv) The factors mentioned at (ii) and (iii) above cannot be considered in isolation to stay the departmental proceedings but due regard has to be given to the fact that the departmental proceedings cannot be unduly delayed.

(v) If the criminal case does not proceed or its disposal is being unduly delayed, the departmental proceedings, even if they were stayed on account of the pendency of the criminal case, can be resumed and proceeded with so as to conclude them at an early date, so that if the employee is found not guilty his honour may be vindicated and in case he is found guilty, the administration may get rid of him at the earliest.”

21. It may not be of assistance to the appellant in the instant

case for the reason that the charge levelled against the appellant

in the criminal case and departmental proceedings of which

detailed reference has been made were on different sets of facts

and evidence having no nexus/co­relationship. The kind of

criminal act/delinquency which he had committed in discharge

of his duties in the course of employment. That apart, much

15 before the judgment of the criminal case could be pronounced,

the departmental enquiry was concluded and after the Inquiry

Officer had held him guilty, he was punished with the penalty of

dismissal from service.

22. The judgment in G.M. Tank case(supra) on which the

learned counsel for the appellant has placed reliance was a case

where this Court had proceeded on the premise that the charges

in the criminal case and departmental enquiry are grounded

upon the same sets of facts and evidence. This may not be of any

assistance to the appellant as we have observed that in the

instant case the charge in the criminal case and departmental

enquiry were different having no nexus/co­relationship based on

different sets of facts and evidence which has been independently

enquired in the disciplinary proceedings and in a criminal trial

and acquittal in the criminal proceedings would not absolve the

appellant from the liability under the disciplinary proceedings

instituted against him in which he had been held guilty and in

sequel thereto punished with the penalty of dismissal from

service.

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23. It is not the case of the appellant that any error committed

in the procedure prescribed under the scheme of Rules 1969 has

been violated or opportunity to hearing has not been afforded or

the principles of natural justice has been violated, in absence

thereof, it is otherwise not open for the Courts to interfere in the

disciplinary proceedings under its limited scope of review under

Articles 226 & 227 of the Constitution of India.

24. Consequently, in our considered view, the appeal is without

substance and is accordingly dismissed. No costs.

25. Pending application(s), if any, stand disposed of.

………..………………………………J. (N.V. RAMANA)

………..………………………………J. (MOHAN M. SHANTANAGOUDAR)

………………………………………..J. (AJAY RASTOGI)

New Delhi August 01, 2019

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