Santosh Kumar Singh vs State of U.P. & Ors.

Counsel for the petitioner and the learned Standing Counsel.

Petitioner has filed the instant writ petition for quashing of the charge sheet dated 3012009 and for restraining the respondents from conducting any departmental proceedings against the petitioner in pursuance of the said chargesheet.

Petitioner, who is a Fireman at Fire Station Haidergarh, District Barabanki, went to attend the marriage in District Gopalganj, Bihar on 832008 after sanction of leave where he was arrested along with his other relatives for possession and transporting of "Ganja" a narcotic drug. Thereafter he was challaned and sent to jail in connection with the offences under Section 21/22 of the Narcotics Drugs and Psychotropic Substances Act along with his relatives. After due investigation, a chargesheet was submitted by the police but in the trial, the petitioner and all other accused persons were acquitted by the judgment and order dated 2872008 passed by the 1st Additional Sessions Judge, Gopalganj, ; Bihar. Thereafter the petitioner was released from jail on 3072008.

When the petitioner reported for duties, the Superintendent of Police, Barabanki passed an order on 552008 placing the petitioner under suspension under the provisions of Rule 17(1)(a) of the U.P. Police Officers of the Subordinate Ranks ( Punishment & Appeal ) Rules, 1991 in contemplation of a departmental enquiry against him on the allegation that the petitioner had proceeded on two days sanctioned leave from 832008 but, he did not report for his duties after expiry of i the aforesaid period of leave and absented himself from his duties without any permission or leave.

The order of suspension dated 552008 was assailed by the petitioner in writ petition No.338 [SS] of 2009, which according to the petitioner''s Counsel is still pending.

It is also relevant to mention that by an order dated 562008, the Circle Officer, Sadar, District Barabanki was directed to conduct a preliminary enquiry against the petitioner. Ultimately, the impugned chargesheet was served upon the petitioner.

Counsel for the petitioner has argued that when the petitioner has been acquitted in criminal charge, there is no occasion to initiate departmental proceedings on the same evidence on which employee concerned has been acquitted. The departmental proceedings are permissible, if the employer wants to lead any evidence apart from the evidence in the criminal case.

Placing reliance on Kedar Nam Yadav v. State of U.P.; 2005(3) ESC 1955, Union of India and others v. Naman Singh Shekhawat (2008) 4 SCC 1 : (2008 AIR SCW 2813) and the State of Punjab and others v. Prem Sarup (Civil Appeal No. 5812 of 2008 decided on September, 18, 2008) Counsel for the petitioner has submitted that once a police officer has been acquitted, no departmental proceedings are permissible on the findings recorded by the criminal court and the said findings have to be accepted to be correct.

In Kedar Nath''s case the departmental proceedings continued during the trial and adverse order was passed against him. In Shekhawat''s case the Apex Court has observed in paragraph 29 as under:

"There cannot be any doubt that initiation of departmental proceeding is permissible even after the judgement of acquittal is recorded by the criminal court. But the same would not mean that a proceeding would be initiated only because it is lawful to do so. A departmental proceeding could be initiated if \\the Department intended to adduce any evidence which is in its power possession to prove the charges against the delinquent officer. Such a proceeding must be initiated bona fide. The action of the authority even in this behalf must be reasonable and fair."

I have gone through the record and the impugned chargesheet. A perusal of the chargesheet shows that the charge against the petitioner is regarding his unauthorised absence, not disclosing correct address while being arrested, proceeding on leave without sanction of leave and not giving the correct and proper information after being released from jail. The criminal case was registered on account of recovery of "Ganja" whereas the disciplinary proceedings have been initiated on altogether different charge. The witnesses which are to be examined and the evidence which is to be relied, as indicated in the chargesheet, is altogether different that what has been adduced in the criminal case. Moreover, in the suspension order passed against the petitioner the charge against the petitioner was that he did not report for duty after availing leave and remained unauthorized absence from duty without any permission and sanction of leave by the competent authority. Therefore, the contention of the petitioner that when he has been acquitted of the criminal charge, the disciplinary proceedings on the same set of charges are wholly illegal, is wholly untenable. In these circumstances, the cases relied upon by the petitioner''s Counsel do not give any help to him because the facts and circumstances of the present case are altogether different.

Furthermore, in the case of Commissioner of Police. New Delhi v. Narender Singh (2006) 4 SCC 265 : (AIR 2006 SC 1800) the Apex Court held as under:

"It is not in dispute that the standard of proof required in recording a finding of conviction in a criminal case and in a departmental proceeding are distinct and different. Whereas in a criminal case, it is essential to prove a charge beyond all reasonable doubt, in a departmental proceeding preponderance of probability would serve the purpose.

It is now well settled by reason of a catena of decisions of this Court that if any employee has been acquitted of a criminal charge, the same by itself would not be a ground not to initiate a departmental proceeding against him or to drop the same in the event an order of acquittal is passed."

In Ajit Kumar Nag v. Indian Oil Corpn. Ltd. (AIR 2005 SC 4217) the Supreme Court opined that acquittal of a delinquent by a criminal court would not preclude an employer from taking action by the disciplinary authority, if it is otherwise permissible. Such a departmental proceeding, however, cannot be initiated mala fide. It must be conducted in accordance with law. An acquittal of a delinquent ipso facto may not absolve him from undergoing disciplinary inquiry. However, where the charges are absolutely identical, ordinarily the same would not be taken resorted to.

In view of the above legal position and the facts averred above, I do not find any good ground to exercise discretionary writ jurisdiction under Article 226 of the Constitution to quash the chargesheet. The writ petition lacks merit and is hereby dismissed.