ABDUL HAKIM AHMAD Vs. DISTRICT SUPDT OF POLICE

JUDGEMENT

(1.) A question of great importance relating to service jurisprudence: as to whether a Government servant against whom a criminal prosecution was instituted even if he secures acquittal can yet be proceeded against in a departmental proceeding and dismissed from service on the same oral evidence and on the same material by reaching a conclusion just contrary to the conclusion reached by the Criminal Court by recording a contrary finding has knocked at the door in this petition under Article 226 of the Constitution of India preferred by a police Constable who was acquitted by a Court of law on disbelieving prosecution witnesses and yet on the same oral evidence was dismissed by the State Government.

(2.) Reliance has been placed on a number of authorities to show that there is no absolute bar to the initiation of departmental proceeding even in cases where a government servant has been acquitted. (State of Andhra Pradesh and Others v. S. Sree Rama Rao A.I.R. 1963 S.C. 1723 Motising Chhagusing Vaghela v. S.D. Mehta 7 G.L.R. 409 and Bhauro Dagadu Thakur v. State of Maharashtra 74 B.L.R. 304). Of course this proposition that acquittal in a Criminal Court does not operate as an absolute bar to a departmental proceeding is now firmly entrenched and needs no reiteration. The heart of the problem however lies elsewhere. It needs to be emphasised that none of the aforesaid cases not one of them supports the much wider proposition canvassed on behalf of the State that on the same material and on re-appreciation of the same oral evidence without anything more it is open to a disciplinary authority to take just the contrary view to the judicial view taken by the Court of law and notwithstanding the order of acquittal to record a finding of guilt against the delinquent and to dismiss him from service. The proposition is an astounding proposition for if it were to be upheld even the finding of acquittal rendered by the Supreme Court may be disregarded and a disciplinary authority say a Deputy Superintendent of Police may take the view that it is open to him to believe the evidence of witnesses not believed by the competent Court and to act on the same evidence and to hold a person guilty notwithstanding that the Criminal Court came to the conclusion let on the very same evidence the accused was entitled to acquittal and the decision was confirmed by even the High Court and the Supreme Court. If this were accepted as a true position of law it would wholly undermine respect for the judicial administration. Nay it would even promote disrespect for the institution of law and justice. What then is the true position of law if an acquittal does not operate as an absolute bar to the initiation of a disciplinary proceeding and at the same time the disciplinary authority cannot hold the Government servant concerned guilty on the same evidence and the same material ? The true position would appear to lie within the hinterland between the two extremes. A departmental proceeding cannot be initiated as a matter of course or without anything more when the Court of law has acquitted the delinquent. It can be undertaken only if special circumstances are shown to exist. It would not be desirable to exhaustively adumberate these circumstances. But the illustrative or typical situations can be by and large conceived. For instance-(1) the Court might have acquitted the accused on the ground of failure to obtain the requisite sanction or (2) the acquittal may be grounded on the circumstance that there was no sufficient evidence by reason of the fact that the prosecution witnesses had not remained present and the request made for adjournment to enable the prosecution to examine witnesses was not granted. (3) The charge was defective and trial was vitiated on account of prejudice occasioned to the accused. (4) When the case is that of circumstantial evidence and acquittal is rendered by extending benefit of doubt on the ground that the prosecution has failed to establish its case beyond reasonable doubt. (5) When some of the witnesses who implicate the accused are believed but others are not believed and in view of conflict of evidence acquittal is ordered on the doctrine of benefit of doubt. Reliance is however placed on the observation made in Motisings case (7 G.L.R. 409) to the effect that degree of proof in a departmental proceeding is different from the degree of proof required in a criminal case. This observation however does not pertain to the realm of appreciation of oral evidence at all. It may have relevance in the context of circumstantial evidence or the totality of evidence. The question of standard of proof or degree of proof is altogether irrelevant in the context of appreciation of oral evidence. There cannot be a different standard or criteria for assessing the credibility of a witness depending on the nature or forum of enquiry. Surely it is not suggested that uninspiring evidence which is considered unworthy of credence by a Court in a criminal case can be acted upon in a departmental proceeding? Veracity and credibility of a witness cannot depend on the nature or forum of a proceeding. (It may be stated in parenthesis that the departmental proceeding is quasi-criminal by its very nature). It is therefore wrong to read by implication such an over- bold proposition into Motisings case (supra). It is not the ratio of the said case that on re-appreciation of the same oral testimony incredible evidence can be branded as credible and reliable by the disciplinary authority in a disciplinary proceeding No such question was directly raised discussed or answered as suggested and such is not the ratio of the decision. 3 It is only in a few cases of the type indicated hereinabove that one can say that the acquittal is no bar to a departmental enquiry. But when evidence is appreciated and disbelieved the very same evidence cannot be believed by the disciplinary authority and it is not open to the disciplinary authority to take just the contrary view to the view taken by the impartial objective judicial mind. In fact if the disciplinary authority were to invent its own reasoning and to record a finding of guilt the order of dismissal passed by the disciplinary authority may well be vulnerable on the ground that the finding is perverse. Though therefore there is no absolute bar it does not mean that in every case it is open to the disciplinary authority to record a contrary finding in disregard of the order of acquittal and to dismiss the Government servant on the same facts and same evidence. Realising this position the Govt. of Gujarat has issued two Circulars indicating as to when disciplinary proceedings may be initiated. The guidelines laid down in Circular dated August 1 1966 are as under :

(3.) The petition is therefore allowed. Impugned order at Annexure E as conformed by order at Annexure F as confirmed by order at Annex- ure G is quashed and set aside. It is declared that the petitioner continues in service. Rule is made absolute with costs.