MOTISING CHHAGUSING VAGHELA Vs. S D MEHTA

JUDGEMENT

(1.) Petitioner Motising Chhagusing Vaghela has filed this petition under Article 226 of the Constitution of India. There is no dispute that at all the relevant times petitioner was an unarMed Police Head Constable and as such an employee of the former Bombay State The original respondent was Shri C. M. Thaker who was District Superin- tendent of Police Mehsana. There is no dispute that he was at the relevant time the officer competent to dismiss petitioner from service The present respondent Shri S. D. Mehta is the successor-in-office of the original respondent Shri C. M. Thaker. It will be convenient to mention the facts leading up to the present petition at first. On 16th April 1959 petitioner was serving at Patan Police Station District Mehsana. On that day he was suspended by the original respondent on the ground that he was involved in a corruption case. Subsequently petitioner was prosecuted in Special Case No. 3 of 1959 before the learned Special Judge Mehsana on the allegation that on or about 25th January 1959 petitioner had accepted a bribe of Rs. 90.00 from one Shanker Parshottam of village Borsan as motive or reward for showing favour to the said Shanker Parshottam viz. to forbear from prosecuting that person for an alleged offence of trafficing in women and that the favour was shown by petitioner in the exercise of his official function. On 30th September 1959 petitioner was acquitted by the learned Special Judge and he ordered that a B-Summary might be granted. Aggrieved by this order of acquittal the State Government preferred an appeal to this High Court the appeal being Criminal Appeal No. 81 of 1960. That appeal was dismissed by this Court by a judgment delivered on 14th and 15th September 1960. This Court not only upheld the findings recorded by the learned Special Judge but held that on the evidence the conclusion is irresistible that the case which has been alleged against the accused is without any founda- tion and concocted. Petitioners grievance is that though according to Instruction No. 5 (iii) (a) issued by the former Government of Bombay and published in 1958 in the book entitled Instructions regarding the holding of Departmental Enquiries against Police Officers and below the rank of Police Inspectors of Police Force in the State of Bombay peti- tioner was entitled to be reinstated in service with minimum delay petitioner was not reinstated in service for a long period of time and that instead of such reinstatement petitioner was served with a charge- sheet on 16th October 1961 in which two charges were levelled against him and a departmental enquiry was proposed to be instituted against him. The first charge in this departmental charge-sheet was the same as the charge which was framed in the criminal trial. The second charge was that petitioner had failed to obey the legal orders of the Police Ins- pector Anti Corruption Branch at the time when the trap on 25th Janu- ary 1959 was implemented by him that he tried to run away on that occasion that he scuffled with the above officer and that he caused him bodily injury. The show cause notice mentioning the aforesaid charges was given to petitioner by the original respondent. Petitioner appeared in response to this notice and contended before the original respondent that he had no authority to hold the departmental enquiry and that the hold- ing of the departmental enquiry constituted a contempt of the High Court. The original respondent however proceeded further with the enquiry and after recording evidence summed up his findings in an order dated 31st March 1962 a copy of which was served to petitioner. The original respondent thereafter on 1st April 1962 issued the second show cause notice to petitioner informing him that petitioner should show cause why he should not be dismissed from service on the basis of the findings recorded by him against petitioner. The original respondent held that both the aforesaid charges had been proved. At that stage petitioner came up to this Court and filed the present petition in which challeng- ed the proceedings on some of the grounds to be presently mentioned. At that stage the contention of petitioner was that the original respondent had no jurisdiction to hold an enquiry against him and that in any case the inquiry was bad because the suspension order had not been withdrawn; that the original respondent had no right to take a view different from the one that had been taken by the High Court in the criminal proceedings on the basis of the same evidence which had been considered by that Court; that the departmental proceedings constituted a contempt of the findings recorded by the high Court; and that in any case the facts of the case disclosed that the original respondent had made up his mind to punish petitioner. That petition was admitted by this Court on 23rd April 1962 and a rule was issued to the original respondent. Petitioner at that time prayed for an interim relief for restraining the original respondent from proceeding further with the departmental enquiry. However such an interim relief was refused. During the pendency of this petition there- fore the proceedings started by the second show cause notice on 1st April 19th proceeded further and ultimately the original respondent order- ed on 30th April 1962 that petitioner be dismissed from service. There- upon petitioner made Civil Application No. 1029 of 1963 for amending the petition which application was granted by an order dated 16th July 1963 Though the events which took place after the present petition was admitted have been recited in the above civil applicationS no corresponding amendments were applied for in the original petition itself nor were any additional grounds incorporated in the petition. But we permitted Mr. Barot to frame his submissions on the basis of the fresh events which had taken place and Mr. Sompura on behalf of the respondent did not raise any objection. The original petition was amended only by incorporat- ing three reliefs which have been numbered as (g) (h) and (i). Mr. Barot concedes that in view of the new events which took place after the admission of the petition the original reliefs (a) to (e) do not survive. Therefore in the present petition we are only concerned with the reliefs (f) (g) (h) and (i) mentioned in the petition. By those reliefs petitioner prays that this High Court should hold that the order of dismissal dated 30 April 1962 was illegal and invalid; that this High Court should direct respondent or any of his successor-in-office to reinstate petitioner forthwith in service and that this High Court should further direct res- pondent or any of his successors to pay to petitioner full salary as if he was never dismissed from service. The facts so far narrated by us are not in dispute except that we may state that respondent does not admit that the evidence on the basis of which the order of dismissal was passed was not the same as the evidence in the criminal proceeding. All that is admitted by respondent is that the witnesses who were examined in the criminal proceeding were the same who were examined in the departmental proceedings.

(2.) On the basis of the aforesaid facts the submissions which Mr. Barot makes for the decision of this Court are as follows:-

(3.) Now when Mr. Barot was making his submissions on the first point we definitely enquired from him as to whether his submission was that the original respondent had no jurisdiction whatsoever to hold a departmental enquiry after the High Court had confirmed the order of acquittal and if so to state the grounds on which according to him the bar was founded. At that stage Mr. Barot stated that he was not pre- pared to go to the length of arguing that a departmental enquiry was barred in all cases on an order of acquittal being recorded. His conten- tion at that stage was limited to the facts of the present case and based on the submission that the departmental enquiry was being held on the same evidence and materials which had come up for consideration before the learned Special Judge and this High Court. Mr. Barot submitted that when such was the case that is when there was no other additional evidence or material on the basis of which a competent officer intended to rely a departmental enquiry based on the same evidence and materials was not sustainable in law. However after he had proceeded a little further in this submission Mr. Barot cited the case of Qamarali Wahid Ali v. State of Madhya Pradesh A. I. R. 1919 Madhya Pradesh 46 and after this case was read Mr. Barot solicited our permission to canvass for a larger proposition which he contended was canvassed and upheld in the above case. Having regard to the fact that the question was purely of law and the observation made by Tare J. in the aforesaid case were helpful to petitioner we permitted Mr. Barot to address us on the larger question. Considering the submission without any authority and purely on general principles we are unable to find any legal basis for the submis- sion that a departmental enquiry is barred on the same facts on which an order of acquittal has been recorded by a criminal Court. In fact we may say that Mr. Barot found considerable difficulty in furnishing us with any such legal basis. Mr. Barot was also unable to cite any autho- rity in support of the wide proposition except Qamaralis case which we propose to discuss in a moment. We may say that Mr. Barot did not contend that there was any constitutional bar to a departmental proceed- ing being initiated on an order of acquittal being recorded. We note that such a contention was raised and negatived in the case of Suresh Chandra v. Himangshu Kumar Roy and others A. I. R. 1953 Calcutta 316. In that case it was held that a departmental proceeding was not a prosecution within the meaning of Article 20 clause (2) of the Constitution of India and therefore that Article did not apply to a departmental proceeding being held following the termination of a criminal Proceeding in favour of the delinquent. Immediately after this case the Supreme Court considered the scope and the effect of the same Article in the case of S. A. Venkata- raman v. Union of India and another A.I.R. 1954 Supreme Court 375. In that case Their Lordships after pointing out the basis of the principle and the contents of the fundamental right guaranteed in that clause were narrower than the common law rule embodied in the maxim Nemo debet bis vexari (a man must not be put twice in peril for the same offence) and the doctrine of Double Jeopardy in the American Constitution and further pointing out that that clause does not contain the principle of autrefois acquit held that in order that clause (2) aforesaid may be attracted there must be prosecution for an act which is an offence accord- ing to law and a punishment in accordance with what that law prescribes. Venkataramans case was the reverse of Suresh Chandras case. In Venkataramans case a prosecution followed an enquiry under the Public Servants (Enquiries) Act 1850 and the contention which Their Lordships negatived was that a criminal prosecution Following the result of such an enquiry was a second prosecution which was barred under Article 20 clause (2) In view of the decision of Their Lordships in Venkataramans case it is quite clear that there cannot be any constitutional bar to the departmental enquiry being held or the termination of a criminal proceed- ing in favour of a delinquent. Mr. Barot also did not contend that there was any statutory or legal bar against such a proceeding. It is obvious that the principle laid down in sec. 403 Criminal Procedure Code 1898 cannot apply to a set of facts as the present. An acquittal order whether recorded by a subordinate Court or the highest Court would bar a second prosecution on the same facts. But a departmental proceeding is not a prosecution within the meaning of sec. 403 aforesaid and therefore there is no such legal bar. The only contention which Mr. Barot apart from the aforesaid Qamarali case could put forward in support of the aforesaid argument was that a departmental proceeding on the same facts on which a delinquent was acquitted would constitute contempt of the High Court. Mr. Barot here again was not able to cite any authority or state any principle on the basis of which such a finding can be recorded. In fact it is well known that a judgment after it is delivered is open to public criticism even to the extent of saying that the judgment was incorrect faulty or unsound on facts or in law. Even if the law was otherwise when an officer decides to hold a departmental enquiry he does nothing of this sort. All that he does is to start a proceeding for the purpose of satisfying himself as to whether in fact the delinquent is guilty of any misconduct or delinquency which requires to be dealt with in the interest of public administration. When holding such an enquiry he is not at all concerned nor is it his object to undertake the decision of the question as to whether the findings recorded by the criminal Court were right or wrong. His object is only to enquire into the question as to whether the delinquent is guilty of a misconduct or a delinquency and the mere fact that he is likely to reach a conclusion different from that recorded by the criminal Court cannot bring him within the ambit of the law of contempt of Court. The fact that an acquittal order is recorded by the High Court or even the highest Court of the realm cannot make any difference whatsoever on principle. So long as a subject or a public authority does not commit contempt of any of such Courts the findings recorded by these Courts would stand on the same footing as the findings recorded by any other Court the acquittal order of which becomes final according to the law of the land. If there is no constitutional statutory or legal bar then not only that there are a number of grounds and we propose to show that the grounds which appealed to Tare J. in Qamaralis case with due respect are not sustain- able on the basis of which it must be held that a departmental enquiry is not barred by an order of acquittal recorded by a criminal Court but also that the two proceedings the departmental and the criminal are entirely different in nature they operate in different fields and they have different objectives. The materials or the evidence in the two proceedings may or may not be the same and in some cases at least materials or evidence which would be relevant or open for consideration in the departmental proceeding may absolutely be tabooed in the criminal proceeding. The rules relating to the appreciation of evidence in the two enquiries may also be different. The scope of an enquiry in a criminal trial is to determine whether an offence against the law of the land has taken place and if so to punish the person who has been guilty of that offence. The scope of a departmental enquiry is to determine whether a public servant has com- mitted a misconduct or delinquency and even if the same constitutes from one point of view a crime to consider the 4question whether the delinquent deserves to be retained in public service or to be reverted or 9 to be reduced in rank or otherwise suitably dealt with for the delinquency concerned. In a criminal trial an incriminating statement made by an accused in certain circumstances or before certain individuals is totally inadmissible in evidence. In a departmental proceeding the enquiry officer is not bound by any such technical rule. The degree of proof which is necessary to record an order of conviction is different from the degree of v proof which is necessary to record the commission of a delinquency. Their Lordships of the Supreme Court have rejected in State of Andhra Pradesh and Others v. S. Sree Rama Rao A. I. R. 1963 Supreme Court 1723 at page 1726 the view that the standard or the degree of proof in the two proceedings is identical in the following words: