State of Punjab &
Ors. Vs. Prem Sarup [2008] INSC 1594 (18 September 2008)
Judgment
IN THE SUPREME COURT
OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 5812 OF 2008 (Arising
out of S.L.P. (C) No.5418/2006) The State of Punjab & Ors. ...Appellants
Versus Prem Sarup ...Respondent O R D E R Leave granted.
(1) This appeal is
directed against the judgment and order dated 22.11.2005 passed by a learned
Single Judge of the Punjab and Haryana High Court in Regular Second Appeal
No.1581/1988 whereby and whereunder the appeal preferred by the appellants
herein from a judgment and decree dated 5.1.1988 passed by the Additional
District Judge, Patiala reversing the judgment and decree dated 29.10.1985, for
declaration that the order of the Senior Superintendent of Police dated
1.7.1981 endorsing and reviving that order as also that of the disciplinary
authority thereby punishing the respondent herein by imposing a punishment of
forfeiture of service on the respondent for a period of two years and the order
of the D.I.G., the appellate authority as also the Inspector General of Police,
Revisional authority were illegal.
(2) The basic fact of
the matter is not in dispute.
(3) Respondent was a
police constable. For commission of the alleged offence under Section 170 of
the Indian Penal Code in the -1- year 1974, he was prosecuted in the year 1979.
He was convicted. However, a criminal appeal was preferred by him. By a
judgment and order dated 8.1.1979, the learned Additional Sessions
Judge, Patiala
allowed the said appeal, holding:
" The learned
P.P. has frankly conceded that he is unable to support the judgment of the
learned Magistrate. Both P.W.1 Bant Singh and P.W.2 Prem Singh did not support
the prosecution version at trial and consequently they were declared hostile.
The learned Magistrate recorded conviction of the appellants on the basis of
evidence given by Shri Jaswant Singh and Investigating Officer Shri Mohinder
Singh. But their alleged guilt. The charge under Section 170 IPC that the
appellant Sucha Singh pretended to hold office of DTO Ropar and did traffic
checking partly could not be established in the absence of evidence of PW Prem
Singh and PW Bant Singh. There witnesses stated that they did not know anything
in this respect.
That being so, the
conviction of the appellant under Section 170 IPC could not be recorded."
(4) A disciplinary
proceeding, however, was initiated against respondent on the same allegations
wherein a punishment of forfeiture of salary was imposed upon him.
(5) He filed Suit in
the Court of Sub-Judge, IInd Class, Patiala in the year 1982 contending that as
the respondent was acquitted after giving benefit of doubt and, thus, his
acquittal was not on merit, the order of punishment in the disciplinary proceeding
should also be set aside.
(6) The said suit was
dismissed by a judgment and decree dated 29.10.1985.
Respondent herein
preferred an appeal, thereagainst, which was allowed by the learned District
Judge, Patiala by a judgment and decree dated 5.1.1988. As noticed
hereinbefore, the Second Appeal preferred by the appellants has been dismissed
by the High Court by reason of the impugned judgment.
-2- (7) The only
contention which has been raised before us is that as the perusal of the
judgment dated 8.1.79 passed by the learned Additional Sessions Judge, Patiala
in Criminal Appeal No. 125 of 1979 would show that the principal prosecution
witnesses were won over, the criminal charges could not be proved and, thus,
the matter comes within the purview of Rule 16.3 of the Police Rules, 1934
which reads as under:
" 16.3. Action
following on judicial acquittal:
(1) When a police
officer has been tried and acquitted by criminal court he shall not be punished
departmentally on the same charge or on a different charge upon the evidence
cited in the criminal case, whether actually led or not unless:
a) the criminal
charges has failed on technical ground; or b) In the opinion of the Court or of
the Superintendent of Police, the prosecution witnesses have been won over, or
c) the court has held in its judgment that an offence was actually committed
and that suspicion rests upon the police officer concerned, or d) the evidence
cited in the criminal case discloses facts unconnected with the charge before
the Court which justify departmental proceedings on a different charges;
e) Additional
evidence admissible under Rule 16.25 (1) in departmental proceedings is
available.."
(8) The report of the
Inquiry Officer is not before us. The order imposing penalty by the disciplinary
authority has also not been produced. We have noticed hereinbefore that the
only plea taken by appellant in the aforementioned suit filed by the respondent
was that he was acquitted by grant of benefit of doubt.
-3- Even in the Memo
of Second Appeal, it was contended as under:
" 4. That the
learned Lower Appellate Court has failed to appreciate that acquittal of the
respondent/plaintiff was not on merits, rather he was acquitted of the charge
by giving the benefit of doubt and the authority relied upon by the learned
Lower Appellate Court cannot be invoked in the present proposition as under
Rule 16.3(1) enquiry proceedings can be initiated on the same charges if the
acquittal is not on merits and the same exception is attracted in the present case."
(9) Application of
Clause (b) of Sub-rule (1) of Rule 16.3 of the Police Rules, 1934, thus, had
only been the bone of contention of the appellants in the said civil suit.
(10) We, therefore,
are of the opinion that no case has been made out to interfere with the
impugned judgment.
(11) There cannot be
any doubt, whatsoever, that in a given situation, it is open to the employer to
initiate a departmental proceeding despite the fact that the delinquent
officers on similar charges have been acquitted.
(2006) 4 SCC 265]
(12) Our attention, however, has been drawn by Mr. S. Prasad, learned counsel
appearing Naman Singh Shekhawat -(2008) 4 SCC 1 wherein this Court, inter alia,
on the premise that the inquiry officer was biased upheld the judgment of the High
Court and set aside the order of the disciplinary authority imposing
punishment.
-4- (13) We, however,
do not agree with the contention of Mr. Prasad, learned counsel that this Court
has taken a view different from the one taken in Commissioner of Police, New
Singh - (2006) 4 SCC 265 as therein also this Court categorically stated the
law to be as under:
" 12. It is not
in dispute that the standard of proof required in recording a finding of
conviction in a criminal case and in a departmental proceeding are distinct and
different. Wheres in a criminal case, it is essential to prove a charge beyond
all reasonable doubt, in a departmental proceeding preponderance of probability
would serve the purpose
13. It is now well
settled by reason of a catena of decisions of this Court that if an employee
has been acquitted of a criminal charge, the same by itself would not be a
ground not to initiate a departmental proceeding against him or to drop the
same in the event an order of acquittal is passed."
(14) In view of the
fact that the appellants before us have not been able to show that those
witnesses who turned hostile before the criminal Court have been examined in
the departmental proceedings and, furthermore, as no material is brought on
record to prove that;
even otherwise, the
charges against the respondent had not been proved, we are of the opinion that
no case has been made out for our interference with the impugned judgment.
Furthermore, as
noticed, hereinbefore the occurrence took place in the year 1974 and the
respondent was acquitted in the year 1979 and, thus, at this distant point of
time, no interference with the impugned judgment is warranted, particularly, in
view of the fact that the appellants -5- have not placed before us any
foundational fact in support of its plea that Clause (b) of Sub- section(1) of
Section 16.3 of the Police Rules, 1934 would be attracted in this case.
(15) For the reasons
stated above, the appeal is dismissed. No costs.
......................J.
[S.B. SINHA]
.....................J
[ CYRIAC JOSEPH ]
New
Delhi,
September
18, 2008.
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