Devendra Singh Kadam vs Union Of India And Others

By this writ petition, the petitioner has challenged the punishment order dated 3/1/2006 as modified by appellate order AnnexP-1 passed in 2008.

The case of petitioner is that he was working as constable and departmental enquiry was initiated against him which resulted into order of penalty dated 3/1/2006 imposing the punishment of reduction in pay by five stages for a period of five years with further stipulation that petitioner will not earn increments during the punishment period and reduction will have effect on the future increments. The appeal preferred by petitioner against this order was partly allowed by appellate authority vide order Annexure P-1 holding that punishment order dated 3/1/2006 will remain operative till 31/7/2008 as petitioner had reached the age of superannuation and retired on 31/7/08. Further case of petitioner is that on the same issue petitioner was prosecuted in special case no. 17/07 for offence under sections 406, 420, 468 (in alternate 406/34, 420/34 and 468/34) of IPC in which he has been acquitted by judgment dated 10th March 2017. Hence the petitioner is now seeking quashment of order of punishment and appellate order in the departmental enquiry.

Learned counsel for petitioner submits that since the petitioner has been acquitted in criminal case therefore, the order of punishment is also liable to be set aside.

Having heard the learned counsel for the petitioner and on perusal of the record it is noticed that petitioner has challenged the order of punishment dated 3/1/2006 as affirmed by appellate order Annex.P-1 passed in the year 2008 after an inordinate delay of more than 10 years. No explanation for the delay has been furnished. Therefore, the writ petition suffers from voice of inordinate delay and latches.

That apart, the petitioner is seeking quashment of order of punishment in the departmental enquiry on the ground that for the same charges the petitioner has been acquitted in criminal case whereas it is the settled position in law that standard of proof required in criminal case is different from the one required in the departmental enquiry. In the criminal case the charge is required to be proved beyond reasonable doubt whereas in the departmental enquiry the charge is required to be established on the preponderance of probabilities.

Supreme court in the matter of Hindustan Petroleum Corporation Ltd. Vs. Sarvesh Berry reported in (2005) 10 SCC 471 in this regard has held that:

8.The purpose of departmental enquiry and of prosecution are two different and distinct aspects. Criminal prosecution is launched for an offence for violation of a duty the offender owes to the society, or for breach of which law has provided that the offender shall make satisfaction to the public. So crime is an act of commission in violation of law or of omission of public duty. The departmental enquiry is to maintain discipline in the service and efficiency of public service. It would, therefore, be expedient that the disciplinary proceedings are conducted and completed as expeditiously as possible. It is not, therefore, desirable to lay down any guidelines as inflexible rules in which the departmental proceedings may or may not be stayed pending trial in criminal case against the delinquent officer. Each case requires to be considered in the backdrop of its own facts and circumstances. There would be no bar to proceed simultaneously with departmental enquiry and trial of a criminal case unless the charge in the criminal trial is of grave nature involving complicated questions of fact and law. Offence generally implies infringement of public duty, as distinguished from mere private rights punishable under criminal law. When trial for criminal offence is conducted it should be in accordance with proof of the offence as per the evidence defined under the provisions of the Indian Evidence Act 1872 (in short the 'Evidence Act'). Converse is the case of departmental enquiry. The enquiry in a departmental proceedings relates to conduct or breach of duty of the delinquent officer to punish him for his misconduct defined under the relevant statutory rules or law. That the strict standard of proof or applicability of the Evidence Act stands excluded is a settled legal position. Under these circumstances, what is required to be seen is whether the department enquiry would seriously prejudice the delinquent in his defence at the trial in a criminal case. It is always a question of fact to be considered in each case depending on its own facts and circumstances.

The Supreme court in the matter of State of Madhya Pradesh and others Vs. Abhijit Singh Pawar passed in civil appeal no. 11356 of 2018 vide order dated 26/11/2018 has held as under:

We find no substance in the contention that by cancelling the respondents' candidature, the Screening Committee has overreached the judgments of the criminal court. We are aware that the question of co-relation between a criminal case and a departmental enquiry does not directly arise here, but, support can be drawn from the principles laid down by this Court in connection with it because the issue involved is somewhat identical, namely, whether to allow a person with doubtful integrity to work in the department. While the standard of proof in a criminal case is the proof beyond all reasonable doubt, the proof in a departmental proceeding is preponderance of probabilities. Quite often criminal cases end in acquittal because witnesses turn hostile. Such acquittals are not acquittals on merit. An acquittal based on benefit of doubt would not stand on a par with a clean acquittal on merit after a full-fledged trial, where there is no indication of the witnesses being won over. In R.P. Kapur v. Union of India6 this Court has taken a view that departmental proceedings can proceed even though a person is acquitted when the acquittal is other than honourable.

In the present case the petitioner who is an ex-constable has been acquitted in the criminal case because the complainant himself had not come in the witness box and the prosecution had not adduced the necessary evidence.

Having regard to the aforesaid and considering the fact that petitioner has failed to furnish any explanation for delay in challenging the punishment order and having regard to the different standard proof required in the criminal case and also the fact that appellate authority has taken lenient view and reduced the punishment, I am of the opinion that no case for interference in the impugned orders is made out.

The writ petition is found to be devoid of any merit which is accordingly dismissed.

C.C. as per rules