SATYA PRAKASH TIWARI Vs. STATE OF M.P.

JUDGEMENT

(1.) By the present petition the Petitioner has challenged the order of termination dated 08.12.89 (Annexure A/5) passed by the Respondent No. 4 Superintendent of Police, GRP, Indore. Briefly stated the dispute pertains to the removal of the Petitioner from service w.e.f. 08.12.1989 from the post of constable in the GRP. The impugned order of termination is passed subsequent to a departmental enquiry and the appeal of the Petitioner was also rejected during the pendency of the petition. It is the contention of the counsel for the Petitioner that since the Petitioner was prosecuted on the same charges in the criminal case however, the Petitioner was acquitted in the said Criminal Case No. 266/1991 then relying on Capt. M. Paul Anthony v. Bharat Gold Mines Ltd and Anr. : AIR 1999 SC 1416 whereby the Apex Court has held that the dismissal is to be set aside due to the acquittal in the criminal case when the termination was based on the same charges on which the criminal case had been filed. Further relying on Munshiram v. State of M.P., 2004 (4) MPHT 236 and in the recent case G.M. Tank v. State of Gujarat : AIR 2006 SC 2129 whereby the Apex Court has reiterated the same ratio. Counsel for the Petitioner stated that if the punishment imposed is not commensurate with the charges against the delinquent and the punishment was one which would shock the conscience of the Court the High Court could always interfere with the order of punishment relying on B.C. Chaturvedi v. Union of India and Ors. : 1995 (6) SCC 749. Counsel for the Petitioner further substantiating her submission stated that the charge was issued to the Petitioner on 12.04.1989 (Annexure A/1) and the enquiry report was submitted by the enquiry officer on 31.08.1989 (Annexure A/2), a show cause notice was issued to the Petitioner vide Annexure A/3 and although the charges were not proved since the star witness relied on by the Respondents did not support the prosecution case witness Virendra Kumar has stated that the Petitioner was not present in the Police Station therefore the charge levelled on him could not be said to be proved. Stressing the important fact that the conclusion drawn that the Head Constable Kishore Kumar was terrorized by a Katta (Gun) by the Petitioner on 31.08.89 is also disproved by the fact that the Dr. Iqbal has clearly stated that the injuries could occur due to a fall and the katta which is alleged to have been used by the Petitioner in the alleged assault on Kishore has also not been found or seized by the Police. Thus, indicating that the Petitioner was being falsely implicated in the alleged offence. Regarding the acquittal of the Petitioner by the Criminal Court vide judgment dated 19.12.91 (Annexure A/8) passed by the Judicial Magistrate First Class, Shahjapur relying on the same counsel has pointed out that Virendra Kumar who was actually the defence witness in the disciplinary proceedings by the department has turned to be the prosecution witness in the criminal case has not supported the prosecution. Drawing my attention to para 9 of the judgment of the Criminal Court (Annexure A/B) counsel pointed out that there was no seizure of the gun pointing to para 17 of the judgment, this witness Virendra Kumar Assistant Sub Inspector has stated that Kishore Kumar never turned up at the Police Station after 8.00 pm in the evening. He was on duty from 6.00 pm to 12 o'clock mid night and had been informed by Kishore that at around 11.30 Satya Prakash Tiwari the Petitioner had come to the Police Station and relieved him, thus the Petitioner was not at the Police Station on the said date of incident when Kishore is said to have been assaulted by the Petitioner and hence the Judicial Magistrate had properly acquitted him. However, on perusing the impugned judgment I find that the Petitioner has been acquitted by granting him benefit of doubt and since the Court did not find Virendra Kumar to be a reliable witness although there is some truth in the allegation of the counsel for the Petitioner that it was only on the basis of the sole complaint and statement of Kishore that the Petitioner has been subjected to the departmental enquiry and the subsequent criminal case. Relying on Regulation 241 of the M.P. Police Regulations which reads as under: 241. Case of acquittal - When a police officer has been tried and acquitted by a criminal court, he must as a rule be reinstated. He may not be punished departmentally when the offence for which he was tried constitutes the sole ground of punishment. If, however the acquittal, whether in the court of original jurisdiction or of appeal, was based on technical grounds, or if the facts established at the trial show that his retention in Government service is undesirable, the Superintendent may take departmental cognizance of his conduct, after obtaining the sanction of the Inspector General. Counsel stated that it was mandatory for the disciplinary authority to consider that if the sole ground of dismissal was the same as alleged the offence on which the criminal case was based and had resulted in an acquittal then the dismissal would be undesirable under the circumstances and would require the sanction of the Inspector General. The Counsel further submitted that the Respondents had erred in dismissing the Petitioner when the appeal was pending before the Court and when the Petitioner had insisted that there was no such incident or evidence on record having taken place there was no eye witness to the incident, the katta (Gun) was not recovered and the sole reliance was based on the statement of the complainant Kishore. Moreover, the Respondent has also erred in rejecting the appeal despite the acquittal. The judgment of acquittal having been brought to the note of the Respondent. The important fact to be considered was that subsequent to the acquittal by the Trial Court the State had filed a writ against such acquittal which was also dismissed by the appellate Court vide Annexure A/10 on 07.04.97 in Criminal Appeal No. 172/1992. Then the appellate authority ought not to have dismissed the mercy appeal of the Petitioner prayed that the impugned order of termination and the appellate order be set aside and on the basis of B.C. Chaturvedi v. Union of India and Ors. : 1995 (6) SCC 749 reinstate the Petitioner to his service. Counsel for the Respondents on the other hand has stated that the Petitioner is not entitled to the relief as claimed. The mercy appeal of the Petitioner has also been rejected by order dated 04.07.1992 (Annexure R/II) whereas this decision was not appealed against. The Petitioner had the remedy for filing revision under Regulation 270 of the M.P. Police Regulations which states that: 270 (2): Every appellate order by a final appellate authority shall be liable to revision by such final appellate authority, on application made in that behalf by the person against whom the order has been passed. And hence the petition was not maintainable as the statutory remedy was available to the Petitioner. Moreover, the judgment of the Trial Court passed in Criminal Case No. 266/1991 was available to the Respondents while deciding the mercy appeal on 04.07.1992 and the same had been considered and rejected by the competent authority. Moreover, acquittal of the Petitioner was not a clear acquittal benefit of doubt had been expressed by the Trial Court and the cases cited by the counsel for the Petitioner was of no help to him since they did not have relevancy to the present case and the punishment imposed is in accordance with law. The Counsel for Respondents further submitted that it can safely be concluded in pursuance to Police Regulation 241 that the acquittal was based on technical grounds and the Petitioners retention in Government service was undesirable. It cannot be said that the punishment was one that shocks the conscience as in the matter of B.C. Chaturvedi (supra) and since there is strict discipline maintained in the police force and moreover the mercy appeal has been decided by the D.I.G. Police (Railway) in accordance with the Police Regulation 241 question of sanction then does not arise. Counsel for the Respondents stated that the Petitioner is also not entitled to any relief specially more so when the petition was barred by time and all the provisions of law had been fulfilled. The matter has been re -appreciated by the S.P. as well as by the DIG hence the petition deserves dismissal. Considering the above submissions, the first plea regarding a revision being available as an alternative remedy to the Petitioner under Regulation 270 (2) as stated above, cannot be permitted at this stage for the simple reason that due to efflux of time it would not be appropriate to remit the case at this stage after having heard the matter finally. Moreover, I find that although the Petitioner has been acquitted by the Trial Court in the criminal case by giving him the benefit of doubt, there is actually not much evidence available against the Petitioner. However, since the acquittal is not pure and simple, Counsel for Respondents has raised a plea that there is statutory provision which says that if the Respondents -authorities are satisfied that the retention of the government servant was undesirable, the Respondents could take such an action of termination. Even if such an argument is acceded to, on considering the Police Regulation 241 as reproduced above, which states that the Superintendent can take such an action only after obtaining the sanction of the Inspector General and as rightly pointed out that no such sanction is available on record. Then, considering the submissions on the anvil of the judgment passed by the Supreme Court in the matter of G.M. Tank (supra), if the findings of the departmental proceedings are unfair and oppressive then the dismissal order was liable to be set aside. In the instant case, therefore, there is no finding of a blunt weapon or 'Katta' to corroborate the statement of the complainant that he had received injuries. Moreover, the medical report also does not substantiate any serious injury and in -fact the very presence of the complainant has been put into doubt then the inevitable conclusion is that the Petitioner cannot be held liable for the offence alleged to have been committed and the impugned order of termination is hereby set aside. Also since the departmental enquiry and criminal proceedings were based on identical and similar facts and evidence and the same witnesses were examined in the criminal case and although there was not an honorable acquittal, the findings of the departmental proceedings are definitely contrary to provisions of law, unfair and oppressive. In view of above, the petition is allowed. It is hereby directed that the Respondents may consider the Petitioner for reinstatement and all other ancillary benefits, if entitled, in accordance with law. No order as to costs. Certified copy as per rules.