MUSHIRAM Vs. STATE OF M P

JUDGEMENT

(1.) THE petitioner, a Constable, was an accused in Criminal Case No. 1563/92 for an offence punishable under Section 377 of tfre Indian Penal Code. The Chief Judicial Magistrate, Rewa held that the charges have not been proved from any quarter by the prosecution and accordingly by judgment dated 13-2-97 recorded acquittal in his favour. After the petitioner was acquitted a charge-sheet dated 25-2-97 was served on him on three charges, namely, that he had committed unnatural offence with a child by which he had made himself liable for misconduct under sub-regulation No. 2 of Regulation 64 of the M. P. Police Regulations; that he refused to receive the order of suspension which was passed against him which tantamount to violation 64 of Regulation; and that he had remained absent from 4-llr92 to. 25-4-9,3, i. e. , almost for a period of 172 days without permission.

(2.) THE petitioner filed a show cause denying the charges and positively pleaded that he had been acquitted in respect of Charge No. 1 and there was no reason to proceed against him in respect of the same. The Disciplinary Authority being unsatisfied with the explanation offered by the petitioner appointed an Inquiry Officer who after conducting inquiry found that all charges have been proved. The disciplinary authority taking note of the charges, finding recorded by the Inquiry Officer and the charge having been proved, thought that the order of dismissal would sub serve the cause of justice. After following due procedure he passed the order of dismissal vide Annexure R-6. The petitioner being aggrieved preferred an appeal to the appellate authority who vide Annexure A-1 affirmed the order of punishment imposed by the disciplinary authority.

(3.) ASSAILING the aforesaid order it is submitted by Mr. Prashant Bhadoriya, learned Counsel for the petitioner that the petitioner has been acquitted for the selfsame offence and keeping in view the same he could not have been dealt with in the departmental proceeding. It is also urged by him that the evidence recorded in the criminal proceeding being common in both the cases, after acquittal in the criminal proceeding, the disciplinary proceeding could not have been initiated. To bolster the aforesaid submission he has placed reliance on a two-Judge Bench decision of the Apex Court rendered in the case of Capt. M. Paul Anthony v. Bharat Gold Mines Ltd. and Anr. , AIR 1999 SC 1416. It is also contended by him that if Regulation 241 of the M. P. Police Regulation is carefully perused it is clear that the same comes in aid of the petitioner inasmuch as nothing has been established in the trial to proceed against him and, therefore, departmental proceeding in respect of selfsame charge is unwarranted. In addition, it is also submitted by him that other two charges which have been instituted against him have been deliberately done after long lapse of time and by no stretch of imagination the same, even if proved, can be a factor for dismissal of the petitioner from service and in any case it is not in consonance with the concept of proportionality.