| SooperKanoon Citation | sooperkanoon.com/911395 |
| Subject | Criminal |
| Court | Delhi High Court |
| Decided On | Mar-15-2011 |
| Case Number | WP(C) 1270/1998 |
| Judge | PRADEEP NANDRAJOG; SURESH KAIT, JJ. |
| Acts | Indian Penal Code (IPC) - Section 302; Railway Protection Force Rules, 1987 - Rules 212, 153; Railway Protection Force Act, 1957 - Section 9(1) |
| Appellant | Rajesh Kr.Chaturvedi |
| Respondent | Union of India and ors. |
| Appellant Advocate | Mr.Sumeet Sharma; Mr.Harsh Lata Vats; Mr.Prashant Bhushan, Advs. |
| Respondent Advocate | Dr.Ashwani Bhardwaj, Adv. |
| Cases Referred | Assn. v. Noida |
2. To be referred to Reporter or not?
3. Whether the judgment should be reported in the Digest?
1. On 20.06.1984 the petitioner was appointed as a Constable in Railway Protection Special Force (hereinafter referred to as "RPSF"). In the year 1990 the petitioner was attached with detachment of E Coy of 7th Battalion, RPSF, which detachment took over the static guard of Malsian- Shahkot railway station outpost (herein after referred to as the "Railway Station") with effect from 29.06.1990. It be noted here that following persons attached with the detachment were deployed at the railway station for static station guarding duty under the command of HC Rup Singh Bardloi: (i) petitioner; (ii) Naik Amarjit Yadav (herein after referred to as the deceased); (iii) Naik Govind Shah; (iv) Naik Indresh Prasad Yadav; (v) Naik Sher Singh; (vi) Const.Sat Pal Singh; (vii) Const.Birsa Torpo; (viii) Const.Ram Pratap; (ix) Const.Ram Lakhan and (x) Cook B.B.Ghose.
2. On 08.07.1990 the deceased Nk.Amarjit Yadav was murdered at the railway station. It was alleged by the other members of the detachment that the petitioner was annoyed with the deceased as he had an argument with him due to which reason he fired three rounds from his service rifle at the deceased which resulted in the instantaneous death of the deceased. On the said basis, the police registered an FIR No.119/1990 under Section 302 IPC against the petitioner.
3. Inspector Ram Sanehi, Coy Commander of the said detachment, conducted a preliminary inquiry into the incident during which he recorded the statements of the members of the detachment. In his report dated 14.07.1990 Inspector Ram Sanehi opined that HC Rup Singh Bardloi, Naik Sher Singh, Const. Sat Pal Singh and Const.Birsa Torpo had fabricated a false story and concealed true facts with respect to the role played by them in preventing the incident and in apprehending the petitioner after he had murdered the deceased. It was further opined by Inspector Ram Sanehi that the said persons had shirked from their responsibility inasmuch as they did not take adequate steps in preventing the incident of the murder of the deceased and apprehending the petitioner and thus recommended a departmental action to be taken against them in said regard. As regards the petitioner, he prima facie opined a case being made out to proceed against the petitioner in a departmental inquiry.
4. Thereafter the department issued a charge sheet to the petitioner which reads as under:-
"Gross remissness and negligence in the discharge of duty, willful breach of discipline and serious misconduct in that Constable Rajesh Kumar Chaturvedi:-
1. On 8.7.90 at about 21/30 hours, while on guarding duty at Malsian-Shahkot Railway Station in Punjab he engaged himself in hot discussion using filthy language with Naik Govind Shah and subsequently with Naik Amarjit Yadav on his objection and created ugly scene.
2. He misused the arms and ammunitions issued to him for safety and security purposes, by opening 3 rounds fire on NK Amarjit Yadav, without any reasonable cause, which resulted into death of the Naik on the spot on 8.7.90 at about 21/30 hours."
5. Vide order dated 02.11.1990, the Disciplinary Authority held that it is not reasonably practicable to hold a departmental enquiry against the petitioner as he is charged with an offence punishable with death and that the evidence of the members of the detachment present at the railway station at the time of the occurrence establishes the charges leveled against the petitioner and inflicted the punishment of dismissal of service upon the petitioner.
6. Aggrieved by the order dated 02.11.1990 passed by the Disciplinary Authority, the petitioner filed an appeal under Rule 212 of Railway Protection Force Rules, 1987 (hereinafter referred to as the "Rules") before the Appellate Authority. Holding that the view taken by the Disciplinary Authority that it is not reasonably practicable to hold a departmental enquiry against the petitioner as he is charged with an offence punishable with death is fallacious, vide order dated 19.02.1992, the Appellate Authority allowed the appeal filed by the petitioner. It was directed by the Appellate Authority that the petitioner be reinstated in service but placed under suspension as he is involved in a case registered in respect of an offence punishable under Section 302 IPC and that the department may initiate fresh departmental proceedings against the petitioner.
7. Vide Office Order No.7Bn/E/PF/CT-RKC/92-2164 dated 09.06.1992 issued by the Competent Authority, the petitioner was placed under suspension with effect from 09.06.1992. On the same date i.e. 09.06.1992 the department issued another office order, the relevant portion whereof reads as under:-
"The Head quarters of constable Rajesh Kumar Chaturvedi of E coy No.7Bn/RPSF/Lumding, who has been placed under vide Order No.7Bn/E/PF/CT- RKC/92-2164 dated 9.6.92, is fixed at No.7Bn/RPSF/Lumding for all purposes.
He will draw subsistence allowance during the period of suspension in terms of Rule-2014 Indian Railway Establishment Manual to an amount equal to the leave salary which he was drawn if he had been on leave on half average pay or on half pay and in addition, dearness allowance on the basis of such leave salary.
No payment of subsistence allowance will be charged unless he submit certificate by 15th of the month that he is not engaged in any other employment, business, profession or vocation. He will not leave the Bn/HQ/Lumding without permission and will give his attendance at Bn. HQ Roznamcha daily at 8.00 hrs, 14.00 hrs and 20.00 hrs. He will also attend all normal and surprise roll calls and fire alarms" (Emphasis Supplied)
8. Vide Office Order No.7Bn/E/DAR/MAJ/J/92-2283 dated 23.06.1992 the department issued a fresh charge sheet to the petitioner for initiation of departmental proceedings under Section 9(1) of Railway Protection Force Act, 1957 read with Rule 153 of Railway Protection Force Rules, 1987 against the petitioner. The charges framed against the petitioner read as under:-
"Gross remissness and negligence in the discharge of duty, willful breach of discipline and serious misconduct in that Constable Rajesh Kumar Chaturvedi:-
1. That on 8.7.90 at about 21.30 hrs while on station guarding duty at Malsian Shah Kot (Punjab) with Arms and Ammunition engaged himself in hot discussion by using filthy and un-parliamentary language with NK Govind Shah and subsequently with NK Amarjit Yadav. On objection by NK Amarjit Yadav, he created an ugly scene. Thus, he failed to respect the code of behavior and maintain an attitude of complete discipline.
2. He misused govt. Arms and Ammunition in that on 8.7.90 at about 21.45 hrs, he fired 3 rounds from his service rifle No.4307577 Butt No.996, after one another at his colleague, NK Amarjit Yadav killing him on the spot, which resulted into the seizure of Arms/Ammunition by GRPS/JUC vide case No.119/90 dt. 9.7.90."
9. An Inquiry Officer was appointed who recorded the preliminary statement of the petitioner wherein he denied the charges leveled against him. Thus, the Inquiry Officer proceeded to record the testimony of various witnesses and we note that the Inquiry Officer has not assigned a number to the witness in the chronological order in which the witnesses were examined, but has assigned a number to the witness with reference to the serial number at which his name found mentioned in the list of witnesses.
10. Naik Govind Shah PW-4, deposed that on 08.07.1990 a tiff had taken place between him and the petitioner and they hurled abuses against each other. At about 09.45 P.M. Head Constable Rup Singh Bardloi informed him that the petitioner had fired three rounds from his service rifle at the deceased.
11. On 30.06.1992 the department examined two witnesses namely, Const.Virsa Torpo PW-6 and Const.Ram Lakhan PW-8.
12. Const.Virsa Torpo PW-6, deposed that on 08.07.1990 at around 09.30 P.M. the petitioner and Naik Govind Shah were arguing with each other and using indecent language. At that time the deceased came there and scolded Naik Govind Shah for using indecent language, which greatly infuriated the petitioner. Thereafter the petitioner and Naik Govind Shah went outside to eat food; the deceased followed them and also went outside. After sometime the petitioner went inside the camp and lay down on the bed. Naik Govind Shah went after the petitioner and counseled him to eat his food upon which both of them came outside. Immediately thereafter the petitioner went inside the camp and lay down on his bed. After sometime he went outside to answer the call of the nature. While he was coming back to his outpost he saw that the petitioner had loaded his rifle and that he was coming out of the camp. The petitioner met him and threatened him to get out of his way. Thereafter he went to the Guard Commander HC Rup Singh and apprised him with the aforesaid facts. In the meanwhile he heard a firing sound followed by the scream of the deceased. He informed HC Rup Singh who was wearing uniform at that time about the said fact. In the meanwhile, the second round was fired upon which he again went to HC Rup Singh to apprise him with the said fact but the door of the camp was shut. He opened the door and in the meanwhile third round was fired. After sometime Const.Ram Pratap, Naik Indresh Prasaad and Const.Ram Pratap apprehended the petitioner. That the petitioner did not have his service rifle in his hand when he was caught. On 09.07.1990 the officials of GRP Jalandhar came to the spot and seized the service rifle of the petitioner and some empty and live rounds from the spot. Be it noted here that the petitioner did not put any question to the witness during the cross-examination that someone else has used his rifle to murder the deceased.
13. Const.Ram Pratap PW-8, deposed that on 08.07.1990, after finishing his duty he went to the mess to eat food and that Naik Indresh Prasad was also eating food in the mess at that time. At that time the petitioner and Naik Govind Shah were drinking liquor and hurling abuses at each other. The deceased objected to the use of abusive language by Naik Govind Shah, which greatly infuriated the petitioner. After sometime he and Indresh Prasad were sitting on a bench outside the camp when again an argument took place between the petitioner and the deceased after which the petitioner went inside the camp. Sometime thereafter he heard a firing sound followed by the scream of the deceased and he saw that the petitioner was standing near the gate with his rifle in his hand. It did not take any time for him to figure out that the petitioner has fired a shot at the deceased. Immediately thereafter the petitioner fired second shot at the deceased after which he and Indresh Prasad got up from the bench. The petitioner ran and fired third shot at the deceased from a close range. Thereafter he and Indresh Prasad started running towards Nakodar. After running for some distance he and Indresh Prasad realized that the petitioner was running behind them and that his rifle was not in his hand at that time upon which he and Indresh Prasad apprehended the petitioner and took him inside the camp. Upon receipt of the information of the incident of the murder of the deceased the officials of GRP Jalandhar came to the spot and seized the service rifle of the petitioner and three empty and five live rounds from the spot. Be it noted here that the petitioner did not put any question to the witness during the cross-examination that someone else has used his rifle for murdering the deceased.
14. On 01.07.1992 the department examined two witnesses namely HC Rup Singh Bardloi PW-2 and Const.Ram Lakhan PW- 7.
15. HC Rup Singh Bardloi PW-2, deposed that on 08.07.1990 at about 09.30 P.M. the petitioner and Naik Govind Shah were arguing with each other and using indecent language. The deceased objected to the use of abusive language by Naik Govind Shah, which greatly infuriated the petitioner. Thereafter he counseled the petitioner, deceased and Naik Govind Shah to stay calm and maintain peace in the camp. After sometime they sat for eating food; that the deceased sat on a bench near the booking window of the office of Stationmaster and that Indresh Prasad, Ram Lakhan and Ram Pratap came there and sat with the deceased. At the same time Naik Govind Shah sat alone on a bench to eat his food and was joined by the petitioner after sometime. However the petitioner did not finish his food; threw away his food and lay down on his bed. Five-seven minutes thereafter the petitioner came outside with his rifle and fired three rounds at the deceased. Thereafter the petitioner threw his rifle and started running but was apprehended by the staff. Upon receipt of the information of the incident of the murder of the deceased the officials of GRP Jalandhar came to the spot and seized the service rifle of the petitioner and three empty and five live rounds from the spot. Be it noted here that the petitioner did not put any question to the witness during the cross- examination that someone else has used his rifle for murdering the deceased.
16. Const.Ram Lakhan PW-7, deposed that on 08.07.1990 he was resting in the camp after finishing his duty when at around 08.30 P.M. he saw that the petitioner and Naik Govind Shah were drinking liquor and using indecent language against each other. The deceased objected to the use of abusive language by Naik Govind Shah, which greatly infuriated the petitioner. In the meantime he took his food and started eating on the bench kept outside the camp. While he was eating his food Govind Shah and the petitioner came there to eat their food but the petitioner did not finish his food and threw away his tiffin. In the meantime the deceased also came there and said that the petitioner is in habit of using abusive language upon which he counseled the deceased to remain calm. The petitioner threatened the deceased and hurled abuses at the deceased. Thereafter the petitioner went inside the camp and the deceased was present outside. He also went inside the camp and came back to the bench after sometime. At that time, Naik Indresh Prasad, Const. Ram Pratap and the deceased were sitting on the bench. In the meantime the petitioner fired a round from his service rifle at the deceased which hit the right knee of the deceased. Thereafter the petitioner fired two more shots which hit the stomach and left ear of the deceased. The deceased had screamed when the first bullet fired by the petitioner hit him. The petitioner left his service rifle near the bench and started running upon which he, Const. Ram Pratap and Indresh Prasad apprehended the petitioner and took him inside the camp. Upon receipt of the information of the incident of the murder of the deceased the officials of GRP Jalandhar came to the spot and seized the service rifle of the petitioner and three empty and five live rounds from the spot. Be it noted here that the petitioner did not put any question to the witness during the cross- examination that someone else has used his rifle for murdering the deceased.
17. Thereafter the petitioner did not appear before the Inquiry Officer and thus was proceeded ex-parte. Witnesses examined thereafter by the department, were not cross- examined by the petitioner, for the obvious reason he did not participate in the enquiry any further.
18. On 27.07.1992 the department examined three witnesses namely Naik Indresh Prasad PW-3, Const.Satpal Singh PW-5 and Cook B.B. Ghosh PW-9.
19. Indresh Prasad Yadav PW-3, deposed that on 08.07.1990 at around 09.20 P.M. he along with Const.Ram Pratap went to the mess to eat food. While he and Const.Ram Pratap were eating food in the mess he saw that the petitioner and Naik Govind Shah were drinking liquor on the bed of the petitioner and using abusive language towards each other. In the meantime the deceased came there and objected to the use of abusive language by Naik Govind Shah, which greatly infuriated the petitioner. Thereafter the petitioner went out in anger; Naik Govind Shah followed him and the deceased lay down on his bed. While he and Const.Ram Pratap were going out to wash utensils they saw that the petitioner and Naik Govind Shah were sitting on a bench. In the meantime the deceased came outside and sat on another bench and he and Const. Ram Pratap joined the deceased. While eating food the petitioner was hurling abuses at the deceased which was strongly objected by the deceased. In the meantime the petitioner went inside the camp and Naik Govind Shah followed him. After sometime Naik Govind Shah came out of the camp and sat on a bench. Few minutes thereafter after loading his rifle the petitioner came out of the camp and fired a shot. At that time they were sitting outside on a bench. The first shot fired by the petitioner hit on the right leg of the deceased upon which the deceased screamed. The petitioner fired second shot at the deceased which hit the right side of the stomach of the deceased. Thereafter the petitioner fired a third shot at the deceased from a close range. Upon firing of the third shot by the deceased they started running towards Nakodar. After sometime he saw that the petitioner was coming without rifle in his hand and that Const. Ram Pratap and Ram Lakhan had apprehended him and taken him inside the camp. On 09.07.1990 the officials of GRP Jalandhar came to the spot and seized the service rifle of the petitioner and three empty and five live rounds from the spot.
20. Const.Satpal Singh PW-5, deposed that on 08.07.1990 at about 09.30 P.M. he went to the mess for eating food. When he came back to the camp after washing his utensils he saw that the petitioner and Naik Govind Shah were drinking liquor and using abusive language against each other. He objected to the use of abusive language by the petitioner and Naik Govind Shah but they did not listen to him. Thereafter he went outside the camp to answer the call of nature and was smoking when he heard sound of firing of three shots. When he went inside the camp he heard Const.Virsa Torpo informing HC Rup Singh Bardloi that the petitioner had fired the shots. When he went outside he saw that Naik Indresh Prasad, Const. Ram Pratap and Const. Ram Lakhan had apprehended the petitioner. On 09.07.1990 the officials of GRP Jalandhar came to the spot and seized the service rifle of the petitioner and three empty and five live rounds from the spot.
21. Cook B.B.Ghosh PW-9, deposed that on 08.07.1990 he had gone to the storeroom of the mess to get some food items when he saw that the petitioner and Naik Govind Shah were drinking liquor on the bed of the petitioner and using abusive language against each other. Ten minutes thereafter the deceased came there and objected to the use of abusive language by Naik Govind Shah, which greatly infuriated the petitioner. The deceased went outside and after sometime the petitioner and Naik Govind Shah also went outside. Around 09.35 P.M. the petitioner came in the camp and lay down on his bed. Thereafter he started eating his food. While he was eating his food he heard the sound of firing of a shot. He left his food and went in the camp. Few minutes thereafter he heard the sound of firing of two shots. He came out of the camp and was running towards public library when he was met by the petitioner. The petitioner told him that he would not harm him and handed his rifle to him. He handed over the said rifle to HC Rup Singh.
22. On 28.07.1992 the department examined one witness namely, Inspector Ram Sanehi PW-1.
23. Inspector Ram Sanehi PW-1, deposed that he is working as Coy Commander of E Coy of 7th Battalion, RPSF and that he had conducted an inquiry into the incident of murder of the deceased. He seized the extract of Individual Allotment Register from the department, which extract records that the rifle seized by the police from the spot of murder of the deceased was allotted to the petitioner and that the petitioner had received the said rifle on 23.12.1988. He seized the extract of Daily Arm/Ammunition Issue and Return Register from the department, which extract records that the rifle which was seized from the spot of the murder of the deceased along with fifty rounds were allotted to the petitioner on 29.06.1990 and that only 42 rounds were recovered from the petitioner on 09.07.1990.
24. On 22.10.1992 the department examined one witness namely Const.Sher Singh PW-10 who deposed that on 08.07.1990 he was performing his duty of guarding the station when at around 09.30 P.M. he heard the agitated voice of the deceased. On hearing the same he went away from his outpost and saw that the petitioner was lying on his bed and that rest of the staff members were sitting outside and that some were eating food. Thereafter he went back to his outpost. Within few minutes of his reaching the outpost he heard the sound of firing of a shot followed by the scream of the deceased. Thereafter he again heard the sound of firing of a shot upon which he made inquiries from HC Rup Singh who told him to go back to the outpost. He followed the instructions of HC Rup Singh and went back to the outpost. HC Rup Singh called Const. Virsa Torpo and went outside where he sternly instructed the petitioner to throw his rifle. Immediately thereafter the petitioner fired a third shot upon which the staff members apprehended him.
25. Vide report dated 12.11.1992, the Inquiry Officer indicted the petitioner of all the charges framed against him. The relevant portion of the report of the Enquiry Officer reads as under:-
" ..
Considering the above facts based on oral and documentary evidence on record:
1) It is a fact that Const. Rajesh Kumar Chaturvedi on 8.7.90 at about 21.30 hrs while on static station guarding duty at Malshian Shah Kot with Arm/Ammn engaged himself in hot discussion by using filthy and unparliamentary language with NK/Govind Shah and subsequently with NK/Amarjit Yadav and on objection by the deceased he (delinquent) created ugly scene.
2) It is a fact that CT/Rajesh Kumar Chaturvedi failed to respect the code of conduct of behavior and maintain an attitude of complete discipline. 3) It is a fact that CT/Rajesh Kumar Chaturvedi misused Govts Arm/Ammn on 08.07.90 at about 21/45 hrs in that he fired 3 rounds from his service rifle No.4307577 BUT No.996 at NK/Amarjit Yadav after one another killing him on the spot.
4) It is a fact that .303 No.4307577 BUT No.996 with 3 empty rounds and 5 live rounds (4 in magazine and one in chamber) was seized by SHO/GRPS/JUC on 9.7.90 vides crime No.119/90 U/S 302 IPC registered against delinquent CT/Rajesh Kumar Chaturvedi on 9.7.90.
5) It is a fact that the delinquent CT/Rajesh Kumar Chaturvedi was arrested in case No.119/90 U/S 302 IPC on 9.7.90.
Reasons and remarks for findings:
The enquiry was conducted without prejudice and the delinquent CT/Rajesh Kumar Chaturvedi has been afforded a reasonable opportunity. The delinquent Constable failed to defend his case miserably. He did not produce any oral or documentary evidence to defend his case. He deliberately avoided attending enquiry on his own sweet will on dates fixed by enquiry officer when the enquiry was in progress.
The delinquent is trained personnel and well acquainted with the working of RPSF. He should have obeyed orders and instructions of his senior subordinates on 8.7.90 and avoided his involvement in such heinous crime in which he used 3 rounds from his service rifle and fired at his colleague NK/Amarjit Yadav killing him on the spot. He was bound to respect the code of behavior and maintain an attitude of complete discipline while on or off duty, deployed for static station guarding duty. He should have not used filthy and unparliamentary language against any staff when he was with Arm/Ammn under his charge for Govts duty. He should not have expressed his anger or irritation against his co-workers.
The use of Arm/Ammn should always be justified. The delinquent should have avoided misuse of Govts Arm/Ammn by keeping balance of his mind for good and real purpose.
There is too much aggressive act by Const.
R.K. Chaturvedi in using of Arm/Ammn against NK/Amarjit Yadav which is intolerable and unjustified. According to departmental Rules of RPF/Act-1987, the misconduct and indiscipline act resorted to while working in Armed Force have tarnished the good image of the Force and the delinquent has also lost his credibility and integrity in the capacity of the member of the Force. Findings: On perusal of oral and documentary evidence available on record from prosecution and defence side and for reasons and remarks mentioned for findings, the charges leveled against the delinquent CT/Rajesh Kumar Chaturvedi have been proved beyond doubt and he is found guilty of charge No.1 & Charge No.2."
26. After considering the aforesaid report dated 12.11.1992 submitted by the Inquiry Officer and the representation filed by the petitioner against the said report, vide order dated 11.01.1993 the Disciplinary Authority held that the charges leveled against the petitioner have been proved and inflicted the punishment of dismissal of service upon the petitioner.
27. Aggrieved by the order dated 11.01.1993 passed by the Disciplinary Authority, the petitioner filed an appeal before the Appellate Authority.
28. All this while, the trial in respect of the FIR registered against the petitioner was in progress before the court of Sessions Judge, Jalandhar, Punjab. During the course of the trial, the prosecution examined six witnesses namely, Dr.V.K.Khullar PW-1, Romesh Thapar PW-2, Const.Ram Lakhan PW-3, Const.Ram Pratap PW-4, Inspector Ram Sanehi PW-5 and Inspector Sat Pal PW-6. Vide judgment dated 10.06.1996 the learned Sessions Judge acquitted the petitioner of the charge of having committed the murder of the deceased. The reasons which led the learned Sessions Judge to come to the said conclusion are as follows: -
(i) the circumstance that there was delay in registration of the FIR in the present case inasmuch as the Investigating Officer reached the spot at about 2.40 A.M. on 09.07.1990 but the FIR was registered on the basis of the statement of HC Rup Singh at about 6.15 A.M. on 09.07.1990 when seen in light of the facts that Inspector Ram Sanehi had submitted in his report dated 14.07.1990 that HC Rup Singh and other staff members had fabricated a false story to conceal true facts and that there was considerable delay in sending the copy of the FIR to the Area Magistrate in compliance of Section 157 Cr.P.C. leads to a very strong presumption that the police had gained time to contrive evidence against the petitioner;
(ii) the account of eye- witnesses Const.Ram Pratap and Ram Lakhan that the petitioner did not shoot the deceased on an impulse when he had an argument with him but that there was a time gap between the periods when the petitioner had an argument with the deceased and when the petitioner fired shots at the deceased is improbable inasmuch as passions cool down after passage of time, more so when seen in the light of deposition of Inspector Ram Sanehi that there is no place in the post where a staff member could safely keep his rifle and that rifle of a staff member can easily be picked up and used by anyone while such staff member is sleeping or has gone to washroom etc;
(iii) the testimonies of eye-witnesses Const.Ram Pratap and Ram Lakhan do not inspire confidence as they are replete with contradictions and improvements, which contradictions and variations though minor assume significance in the facts of the present case (The contradictions pointed out by the learned Trial Judge in the testimony of Const.Ram Lakhan and Const.Ram Pratap primarily pertained to the manner in which the petitioner threw his rifle after firing shots at the deceased; the conduct of the staff members immediately after the commission of the murder of the deceased by the petitioner and apprehension of the petitioner by the staff members and the circumstances in which the police seized the rifle and empties found at the spot);
(iv) there is a variation between ocular and medical evidence in the present case inasmuch as first, third and fifth wounds found on the person of the deceased were found to be blackened which suggests that the petitioner had fired shots at the deceased from a close range whereas the eye-witnesses deposed that the petitioner had fired first two shots at the deceased from a distance of 8-9 yards;
(v) there was considerable delay in the deposit of the rifle and empties seized by the police from the spot in the Forensic Science Laboratory;
(vi) the report of the ballistic expert that the empties recovered from the spot were fired from the service rifle of the petitioner cannot be taken into consideration for the ballistic expert has given no reasons in support of the conclusion arrived by him and
(vii) the investigation conducted by the police in the present case is defective inasmuch as the Investigation Officer has omitted to mention certain details in the inquest report and the site plan prepared by him.
29. On 22.02.1997 the petitioner wrote a letter to the Appellate Authority wherein he informed the Authority about the factum of pendency of his appeal and the passing of judgment dated 10.06.1996 by the criminal court acquitting him of the charge of the murder of the deceased framed against him. Vide order dated 27.08.1997 the Appellate Authority dismissed the appeal filed by the petitioner on the ground that the appeal dated 22.02.1997 filed by the petitioner is time-barred in terms of provisions of RPF Rules, 1987.
30. Aggrieved by the order dated 27.08.1997 passed by the Appellate Authority, the petitioner filed a revision before the Revisional Authority inter-alia contending that in view of the fact that the he has been acquitted in the criminal proceedings based on same set of allegations which constituted the gravamen of the departmental proceedings instituted against him the order passed by the Disciplinary Authority dismissing him from the service should be quashed and that the departmental proceedings instituted against him stood vitiated for the reason he was not able to participate in the said proceedings due to the failure of the department to pay subsistence allowance to him by the department, which revision was dismissed vide order dated 26.11.1997. On the issue of acquittal of the petitioner in the departmental proceedings, it was held by the Revisional Authority that since the charges framed against the petitioner in the departmental and criminal proceedings were different the acquittal of the petitioner in the criminal proceedings has no effect on the departmental proceedings instituted against him. On the issue of non-payment of subsistence allowance to the petitioner, it was held by the Revisional Authority that the petitioner did not submit a certificate to the department to the effect that he is not engaged in any other employment, business, profession or vocation as required in terms of the suspension order dated 09.06.1992. It was further held by the Revisional Authority that the suspension order dated 09.06.1992 required the petitioner to not to leave the Battalion Headquarters without permission, which condition was also violated by the petitioner thereby disentitling him for payment of subsistence allowance.
31. Aggrieved by the orders dated 11.01.1993, 27.08.1997 and 26.11.1997 passed by the Disciplinary Authority, Appellate Authority and Revisional Authority respectively, the petitioner has filed the present petition.
32. During hearing of the present petition, following two submissions were advanced by the learned counsel for the petitioner:-
A The first submission advanced by the learned counsel for the petitioner was that for the same set of facts which constituted the gravamen of the departmental proceedings against the petitioner FIR No.119/21990 was registered under Section 302 IPC. Counsel argued that when in the criminal proceedings predicated upon same set of facts as departmental proceedings the petitioner stood acquitted on merits, it was incumbent upon the Appellate/Revisional Authority to attach due weightage to the finding of innocence arrived at by the criminal court and quash the order passed by the Disciplinary Authority running contrary to the decision of the criminal court. In support of the said submission, strong emphasis was placed by the counsel upon the decision of the Supreme Court reported as Captain M. Paul Anthony v Bharat Gold Mines Ltd (1999) 3 SCC 679.
B The second submission advanced by the learned counsel for the petitioner that in view of the fact that the petitioner was unable to participate in the disciplinary proceedings due to the failure of the department to pay subsistence allowance to him the entire proceedings instituted against the petitioner stood vitiated and as a necessary consequence thereof the order of punishment passed by the Disciplinary Authority against the petitioner cannot be sustained. In support of the said submission, strong emphasis was placed by the counsel upon the decision of Supreme Court reported as Ghanshyam Das Shrivastav v State of M.P. (1973) 1 SCC 656. It was further contended by the counsel that the Revisional Authority failed to note that the petitioner had not submitted the necessary certificate with the department in the month of June 1992. It was further argued that the petitioner was not required to submit the necessary certificate in every month during the period of the suspension.
33. The questions that whether the criminal and departmental proceedings launched against a delinquent employee can proceed simultaneously and that what is the effect of acquittal of a delinquent employee in the criminal proceedings on the punishment imposed upon him in the departmental proceedings which crop up perennially in the service matters has yet again arisen in the present case.
34. The afore-noted questions were examined in great detail by Supreme Court in Anthony's case (supra). The facts of the said case were that the appellant was employed as a Security Officer in the respondent. On 02.06.1985 a raid was conducted by the police at the house of the appellant from where a mining sponge gold ball and gold-bearing sand were recovered. On the same day, an FIR was registered against the appellant, who was placed under suspension on 03.06.1985. On the next day i.e. 04.06.1985 a charge sheet was issued to the appellant proposing a regular departmental enquiry against him with regard to the recovery of the above articles from his house. The appellant made a representation to the Disciplinary Authority inter-alia contending that the departmental proceedings initiated against him be postponed till the conclusion of the criminal case registered against him, which representation was rejected. Aggrieved from the aforesaid, the appellant filed a writ petition before Karnataka High Court seeking a direction to restrain the respondent from proceeding with the departmental proceedings till the conclusion of the criminal case. While disposing of the said petition, the High Court issued a direction to consider deferring the departmental proceedings if found expedient to do so. The respondent did not defer the departmental proceedings and continued the same. The appellant did not participate in the said proceedings and thus was proceeded ex-parte. On 10.05.1986 the Enquiry Officer submitted his report to the Disciplinary Authority wherein he held the appellant to be guilty of the charges leveled against him. The Disciplinary Authority accepted the report of the Enquiry Officer and inflicted the punishment of dismissal from service upon the appellant. Aggrieved by the aforesaid, the appellant filed a writ petition before a Single Judge of Karnataka High Court, which petition was allowed by the Single Judge. However in appeal, the Division Bench set aside the judgment of the Single Judge. Aggrieved thereof, the appellant filed a special leave petition before the Supreme Court and advanced two contentions namely, (i) the departmental proceedings instituted against the appellant ought to have been stayed till the conclusion of the criminal case registered against him and (ii) the entire disciplinary proceedings which were held ex-parte stood vitiated for the appellant could not participate in the said proceedings due to failure of the department to pay subsistence allowance to him. After examining the entire case- law on the point, the Court allowed the appeal filed by the appellant. The relevant portion of the judgment of the Court reads as under:-
12. This question, as observed earlier, is of a perennial nature and has arisen more often than not in spite of the judicial pronouncements, specially by this Court, having settled the question and provided the answer. Still, the problem is raised either by the employer or by the employee in one or the other form. In the instant case, the order of dismissal had already been passed before the decision of the criminal case which ultimately resulted in the acquittal of the appellant. Whether the acquittal coupled with other circumstances, specially ex parte proceedings, of the case, will have the effect of vitiating the departmental proceedings or the order of dismissal passed against the appellant, is the question which is to be considered in this appeal.
13. As we shall presently see, there is a consensus of judicial opinion amongst the High Courts whose decisions we do not intend to refer to in this case, and the various pronouncements of this Court, which shall be copiously referred to, on the basic principle that proceedings in a criminal case and the departmental proceedings can proceed simultaneously with a little exception. As we understand, the basis for this proposition is that proceedings in a criminal case and the departmental proceedings operate in distinct and different jurisdictional areas. Whereas in the departmental proceedings, where a charge relating to misconduct is being investigated, the factors operating in the mind of the disciplinary authority may be many such as enforcement of discipline or to investigate the level of integrity of the delinquent or the other staff, the standard of proof required in those proceedings is also different than that required in a criminal case. While in the departmental proceedings the standard of proof is one of preponderance of the probabilities, in a criminal case, the charge has to be proved by the prosecution beyond reasonable doubt. The little exception may be where the departmental proceedings and the criminal case are based on the same set of facts and the evidence in both the proceedings is common without there being a variance.
22. The conclusions which are deducible from various decisions of this Court referred to above are:
(i) Departmental proceedings and proceedings in a criminal case can proceed simultaneously as there is no bar in their being conducted simultaneously, though separately.
(ii) If the departmental proceedings and the criminal case are based on identical and similar set of facts and the charge in the criminal case against the delinquent employee is of a grave nature which involves complicated questions of law and fact, it would be desirable to stay the departmental proceedings till the conclusion of the criminal case.
(iii) Whether the nature of a charge in a criminal case is grave and whether complicated questions of fact and law are involved in that case, will depend upon the nature of offence, the nature of the case launched against the employee on the basis of evidence and material collected against him during investigation or as reflected in the charge-sheet.
(iv) The factors mentioned at (ii) and (iii) above cannot be considered in isolation to stay the departmental proceedings but due regard has to be given to the fact that the departmental proceedings cannot be unduly delayed.
(v) If the criminal case does not proceed or its disposal is being unduly delayed, the departmental proceedings, even if they were stayed on account of the pendency of the criminal case, can be resumed and proceeded with so as to conclude them at an early date, so that if the employee is found not guilty his honour may be vindicated and in case he is found guilty, the administration may get rid of him at the earliest.
34. There is yet another reason for discarding the whole of the case of the respondents. As pointed out earlier, the criminal case as also the departmental proceedings were based on identical set of facts, namely, "the raid conducted at the appellants residence and recovery of incriminating articles therefrom". The findings recorded by the enquiry officer, a copy of which has been placed before us, indicate that the charges framed against the appellant were sought to be proved by police officers and panch witnesses, who had raided the house of the appellant and had effected recovery. They were the only witnesses examined by the enquiry officer and the enquiry officer, relying upon their statements, came to the conclusion that the charges were established against the appellant. The same witnesses were examined in the criminal case but the Court, on a consideration of the entire evidence, came to the conclusion that no search was conducted nor was any recovery made from the residence of the appellant. The whole case of the prosecution was thrown out and the appellant was acquitted. In this situation, therefore, where the appellant is acquitted by a judicial pronouncement with the finding that the "raid and recovery" at the residence of the appellant were not proved, it would be unjust, unfair and rather oppressive to allow the findings recorded at the ex parte departmental proceedings to stand.
35. Since the facts and the evidence in both the proceedings, namely, the departmental proceedings and the criminal case were the same without there being any iota of difference, the distinction, which is usually drawn as between the departmental proceedings and the criminal case on the basis of approach and burden of proof, would not be applicable to the instant case
." (Emphasis Supplied)
35. The entire case law on the point including its earlier decision in Anthonys case (supra) was reviewed by the Supreme Court in the decision reported as Management, Pandiyan Roadways Corporation Ltd v N. Balakrishnan (2007) 9 SCC 755 wherein it was held as under:-
" ..20. However, there is another aspect of the matter which cannot be lost sight of. The respondent, in the meanwhile, has been acquitted. The factum of his acquittal has been taken into consideration by the Division Bench, which was considered to be an additional factor. Ordinarily, the question as to whether acquittal in a criminal case will be conclusive in regard to the order of punishment imposed upon the delinquent officer in a departmental proceeding is a matter which will again depend upon the fact situation involved in a given case.
21. There are evidently two lines of decisions of this Court operating in the field. One being the cases which would come within the purview of Capt. M. Paul Anthony v. Bharat Gold Mines Ltd.20 and G.M. Tank v. State of Gujarat21. However, the second line of decisions show that an honourable acquittal in the criminal case itself may not be held to be determinative in respect of order of punishment meted out to the delinquent officer, inter alia, when:
(i) the order of acquittal has not been passed on the same set of facts or same set of evidence;
(ii) the effect of difference in the standard of proof in a criminal trial and disciplinary proceeding has not been considered (see Commr. of Police v. Narender Singh22), or; where the delinquent officer was charged with something more than the subject-matter of the criminal case and/or covered by a decision of the civil court (see G.M. Tank21, Jasbir Singh v. Punjab & Sind Bank23 and Noida Entrepreneurs' Assn. v. Noida24, para 18). ." (Emphasis Supplied)
36. To summarize the legal position, honorable acquittal in the criminal case is not conclusive in regard to the order of punishment imposed upon the delinquent officer in a departmental proceeding in every case and the same depends upon the fact situation involved in a given case. The criminal and departmental proceedings operate in their own distinct and mutually exclusive jurisdictional areas. In a disciplinary proceeding, the area of investigation covers the field of (a) enforcement of discipline, (b) level of integrity, and (c) misconduct pertaining to devotion of duty. In criminal proceedings, the area of investigation covers the culpability from the point of view of criminal law. Standard of proof in the two proceedings is entirely different. In the former it is preponderance of probabilities, in the latter, it is proof beyond reasonable doubt. In a criminal trial, the only evidence admissible is that which is admissible under the provisions of the Evidence Act. A tribunal conducting an enquiry in a disciplinary proceeding is not bound by the rules of evidence. Any material which has a logically probative value to prove or disprove the facts in issue is relevant and admissible.
37. Keeping the afore-noted judicial parameters in mind, we proceed to examine that whether the instant case comes within the purview of Anthonys case (supra) or in the second line of decisions noted in Balakrishans case (supra).
38. From the afore-noted conspectus of facts, it is apparent that the petitioner was facing only one charge in the criminal proceedings of having committed the murder of the deceased by misusing arms and ammunitions provided to him by the government. Charges framed in the departmental proceedings as noted in para 8 above show that in the departmental proceedings, a much wider area was being covered. Field of service pertaining to the enforcement of discipline was there in the departmental proceedings, apart from field of misconduct (based on commission of murder of the deceased and misuse of governments arms and ammunitions). The charge of murder of the deceased was only one of the charges in the departmental proceedings. The misbehavior of the petitioner with his colleagues was the other area of the departmental proceedings. It, therefore, cannot be said that the criminal case and departmental proceedings were grounded on identical set of facts, though we may hasten to add that the facts pertaining to both charges were intertwined and in the context of the motive for the crime, the facts pertaining to the first charge would fall for consideration at the criminal trial.
39. Another circumstance which is worth noticing is that in the instant case, there is a lot of difference between the evidence led before the Domestic Enquiry and before the Criminal Court. Only two staff members namely Const.Ram Pratap and Const.Ram Lakhan were examined at the trial before the learned Court of Sessions, whereas in the Domestic Enquiry, minus the deceased and the petitioner, all the remaining eight staff members were examined. Thus, the evidence led by the prosecution in the criminal case was inchoate due to which reason the criminal court did not get a clear picture of the incident of the murder of the deceased. Not only that, due to the deficient evidence led by the prosecution the Criminal Court could not correctly appreciate the import of the report dated 14.07.1990 of Inspector Ram Sanehi, which report heavily weighed with the criminal court in coming to the conclusion that the case set up by the prosecution against the petitioner does not inspire confidence.
40. In Anthonys case (supra) a fact which heavily weighed with the Supreme Court in coming to conclusion that the acquittal of the employee in said case in the criminal proceedings led to quashing of the order of punishment passed by the disciplinary authority in the departmental proceedings was that the employee could not appear in the departmental enquiry and defend himself due to the failure of the department to pay subsistence allowance to him. Whereas in the instant case, the petitioner appeared before the Inquiry Officer till the middle of the enquiry and thereafter stopped appearing due to no fault of the department as would be demonstrated by us in the subsequent paras.
41. We must highlight that at the departmental proceedings, a very vital piece of evidence was brought to light, but for unexplainable reasons, before the Criminal Court, the prosecution chose not to lead such a vital piece of evidence. The same was an extract of the Arms and Ammunitions Register which contained the recordings that one rifle and fifty rounds were allotted to the petitioner on 29.06.1990 and that only forty two rounds were recovered from the petitioner on 09.07.1990. The entry in the register was exhibited at the departmental enquiry. The fact that eight out of fifty rounds allotted to the petitioner were not accounted for by the petitioner coupled with the facts that three empty rounds and the said rifle loaded with five live rounds were seized by the police from the place of the occurrence leads to a strong presumption that the rifle allotted to the petitioner was used for murdering the deceased, which fact in turn speaks volumes about the guilt of the petitioner. Whereas the criminal court has proceeded on the premise that there is no evidence to establish that the rifle allotted to the petitioner was used for murdering the deceased, a close reading of the judgment dated 10.06.1996 of the criminal court shows that the aforesaid extract was either not produced by the prosecution before the criminal court or if the same was produced by the prosecution it was not noticed by the criminal court for there is no reference to the said extract in the entire judgment.
42. In view of the aforesaid discussion, it has to be held that the instant case clearly does not come within the purview of Anthonys case (supra) and that acquittal of the petitioner in the criminal proceedings has no effect on the punishment of dismissal of service imposed upon the petitioner in the departmental proceedings initiated against him.
43. When a government employee is placed under suspension, the government is duty bound to pay subsistence allowance to such employee during the period of the suspension. The subsistence allowance which is normally less than the pay and allowance which an employee would have been entitled to get had he not been suspended from service is paid to an employee to enable him to sustain himself during the period of the suspension.
44. The question which has really arisen in the present case is that whether the petitioner was required to submit the necessary certificate to the department every month during the period of the suspension.
45. In our opinion, the answer to the aforesaid question is in affirmative. The subsistence allowance is paid to an employee in each of the month when he is unable to sustain himself during the period of the suspension. In such circumstances, it was incumbent upon the petitioner to certify in every month that he is not able to sustain himself in order to avail payment of subsistence allowance in the said month but the needful was not done by the petitioner. We thus find no force in the submission of the petitioner that he was not able to attend the enquiry due to failure of the department to pay subsistence allowance to him. It may be highlighted that in the order suspending the petitioner it was clearly brought to his notice that by the 15th of each month a certificate of non-employment had to be filed and only then would the subsistence allowance be released.
46. Having repelled the submissions advanced by the petitioner, we proceed to determine that whether the findings arrived at by the Inquiry Officer and accepted by the Disciplinary/Revisional Authority are correct?
47. As already noted herein above, it is recorded in the extract of Arms and Ammunition produced before the Enquiry Officer that one rifle and fifty rounds were allotted to the petitioner on 23.06.1990 and that only forty two rounds were recovered from the petitioner on 09.07.1990. The fact that eight out of fifty rounds allotted to the petitioner were not recovered from the petitioner coupled with the facts that three empty rounds and the said rifle loaded with five live rounds were seized by the police from the place of the occurrence leads to a very strong presumption that the rifle allotted to the petitioner was used for murdering the deceased. Who could use the rifle of the petitioner for murdering the deceased other than the petitioner himself? No defence was taken by the petitioner that someone else had used his rifle for murdering the deceased inasmuch as no questions in said regards were put by the petitioner to the witnesses cross-examined by him. The fact that the rifle of the petitioner was used for murdering the deceased lends due corroboration to the depositions of the staff members examined before the Inquiry Officer that the petitioner had fired three shots at the deceased. This evidence itself incriminates the petitioner and if we add on thereto the testimony of the eye-witnesses at the departmental enquiry, only two of whom were examined before the Court of Sessions, we find no infirmity in the findings arrived at by the Inquiry Officer accepted by the Disciplinary/Revisional Authority.
48. In view of the above discussion, we find no merit in the instant petition. The same is hereby dismissed.
49. No costs.