Full Judgment Text
1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 10729 OF 2013
(@ Special Leave Petition (Civil) No.29808 of 2010)
State of West Bengal & Ors. … Appellants
Versus
Sankar Ghosh … Respondent
J U D G M E N T
K.S. Radhakrishnan, J.
1. Leave granted.
JUDGMENT
2. We are, in this case, concerned with the question
whether the respondent, who was dismissed from service
following disciplinary proceedings, is liable to be
reinstated on acquittal by a criminal court on the ground
of identity of charges in the departmental as well as
criminal proceedings.
Page 1
2
nd
3. The respondent was working as a Sepoy in the 2
Battalion of the Kolkata Armed Police. At the time of the
incident, he was working as a Sepoy on deputation in the
Traffic Department of Kolkata Police. He was arrested by
the police in connection with Khardah P.S. Case No.383
dated 12.11.2013 and charged for the offences under
Sections 392, 395 and 412 of the Indian Penal Code read
with Sections 25 and 27 of the Arms Act for his complicity
in the commission of a dacoity using a motor cycle bearing
Registration No.WB-24/F-3050. On his arrest, he was
produced before the Sub-Divisional Magistrate,
Barrackpore, and he was remanded to police custody till
28.11.2003 and then to judicial custody till 30.3.2004.
Later, he was released on 1.4.2004. The department
JUDGMENT
placed the respondent under suspension w.e.f. 26.11.2003
and was later served with a charge sheet on 1.6.2004.
The operative portion of the charge sheet reads as
follows :-
nd
“You Sepoy 14610 Sankar Ghosh of 2 Bn.,
K.A.P. working on deputation to Traffic
Department, Kolkata Police, presently under
suspension w.e.f. 26.11.2003 F.N. are charged
Page 2
3
with gross misconduct unbecoming of a
member of the Kolkata Police Force in that :-
1) You were arrested on 26.11.2003 by
Khardah P.S. for your direct complicity in
commission of dacoity vide Khardah P.S. Case
No.383 dated 12.11.2003 u/S. 392 IPC adding
Section 395/412 CPC and 25/27 Arms Act by
using a motor cycle T.V.S. Victor Blue coloured
bearing Regd No.24F/3050
2) You were produced before the Ld. SDJM
Barrackpore on the same day (2611.03) and
resumed P.C. till 28.11.2003 and then to J.C. till
30.3.2004. You were released from Dum Dum
Central Jail on 1.4.2004.
3) It appears from the record that you have
no stay out permission from the competent
authority and you were involved in the criminal
case in the jurisdiction of Khardah P.S. and also
arrested from outside the Kolkata Police
jurisdiction.
JUDGMENT
4) You being a member of the disciplined
force, your involved in such type of heinous
crime tarnished the image/prestige of the
Kolkata Police force in the estimation of the
members of the public in large.
You are hereby directed to state whether
you plead guilty to the charges or want an open
enquiry into the matter. Your written reply
should reach within 7 (seven) days of the
receipt of this charge.
Page 3
4
Deputy Commission of Police
Traffic Department, Kolkata.”
4. The respondent replied to the charge sheet and a
detailed enquiry was conducted by the Enquiry Officer.
On conclusion of the enquiry, the Enquiry Officer after
perusing the materials on record and after hearing the
parties drew up his report on the enquiry on 10.11.2004.
The Enquiry Officer found the respondent guilty of the
charges levelled against him. The Disciplinary Authority,
after considering the Enquiry Report as well as after
hearing the respondent, concurred with the views
expressed by the Enquiry Officer and ultimately decided
to impose the penalty of dismissal from service. The
respondent was, therefore, served with the notice to show
JUDGMENT
cause as to why he should not be dismissed from service.
A detailed reply was submitted by the respondent. After
considering the reply, the Disciplinary Authority dismissed
the respondent from the Police Force w.e.f. 27.12.2004.
The respondent then filed an appeal before the Appellate
Authority.
Page 4
5
5. The Appellate Authority gave a personal hearing to
the respondent on 28.2.2005. The Appellate Authority
after having noticed that the order of dismissal was not
passed by the appropriate authority, set aside the order
and left it to the appropriate authority to pass appropriate
orders based on the Enquiry Report. The Deputy
nd
Commission of Police, 2 Battalion, Kolkata Armed Police,
who is the competent authority, after considering the
entire matter passed a final order dismissing the
respondent from service w.e.f. 2.6.2005. Against the said
order, the respondent filed an appeal before the Appellate
Authority i.e. the Joint Commissioner of Police (A.P.),
Kolkata Police. The Appellate Authority after considering
the entire matter, rejected the appeal vide its order dated
JUDGMENT
25.8.2005.
6. The Additional Sessions Judge, Barrackpore, who was
trying the criminal case levelled against the respondent
and five other accused persons for committing the offence
under 395/412 IPC read with Section 25(1)(a)/27/35 of the
Arms Act, in the meanwhile found that the charges
Page 5
6
levelled against the accused persons including the
respondent were not found proved and consequently vide
judgment dated 7.12.2007 acquitted all the accused
persons. The respondent on his acquittal in the criminal
case filed O.A. No.3961 of 2008 before the West Bengal
Administrative Tribunal. The Tribunal after perusing the
judgment of the Sessions Court acquitting the respondent
and others took the view that the said judgment should
have a bearing on the decision of the Enquiry Officer
regarding disciplinary proceedings. Holding so, the
appeal was disposed of with a direction to the Disciplinary
Authority to reinstate the respondent in view of the
acquittal order passed by the Sessions Court in the
criminal case.
JUDGMENT
7. Aggrieved by the said order, the State of West
Bengal along with two others, filed W.P.S.T. No.570 of
2009 before the Calcutta High Court. The High Court
dismissed the appeal upholding the order of the Tribunal,
against which this appeal has been preferred.
Page 6
7
8. Mr. Kalyan Bandopadhyay, learned Senior Advocate,
appearing for the State of West Bengal submitted that the
Tribunal and the High Court have committed an error in
directing reinstatement of the respondent in service
considering the mere fact that the respondent along with
others was acquitted by the Criminal Court. Learned
senior counsel submitted that the respondent was not
honourably acquitted by the Criminal Court. The
acquittal was by way of giving benefit of doubt since the
accused persons could not be identified during the T.I.
parade. Further, it was also pointed out that the High
Court has not properly appreciated Regulation 4 of
Chapter 19 of the Police Regulations of Calcutta, 1968,
which was applicable to the respondent.
JUDGMENT
9. Mr. Nikhil Goel, learned counsel appearing for the
respondent, submitted that the Tribunal and the High
Court have correctly applied the ratio laid down by this
Court in Capt. M. Paul Anthony v. Bharat Gold Mines
Ltd. & Anr. [(1993) 3 SCC 679], Sulekh Chand & Salek
Chand v. Commissioner of Police & Ors. [1994 Supp.
Page 7
8
(3) SCC 674] and G.M. Tank v. State of Gujarat & Ors.
[(2006) 5 SCC 446] and ordered reinstatement of the
respondent. Learned counsel also submitted that since
the accused persons could not be identified in the TI
Parade, their complicity could not be established.
Consequently, the acquittal of the respondent was an
honourable acquittal. Going by the various judicial
precedents laid down by this Court, learned counsel
submitted that the respondent was rightly reinstated in
service and the order passed by the Tribunal as well as
the High Court calls for no interference.
10. We may, at the very outset, point out that the
respondent was a member of the disciplined force. He
JUDGMENT
nd
was working as a Sepoy in the 2 Battalion of the Kolkata
Armed Force and at the relevant point of time he was
working as Sepoy on deputation with the traffic
department of Kolkata Police. It is true that the
respondent was dismissed from service due to his
involvement in the criminal case, wherein he was charged
with the offences under Sections 395/412 IPC and
Page 8
9
Sections 25/27 of the Arms Act. It is also the stand of the
department that being a member of the disciplined force,
his involvement in such a heinous crime tarnished the
image/prestige of the Kolkata Police Force in the
estimation of the members of public in general. Before
the Enquiry Officer from the side of the department, four
witnesses were examined, including Jiban Chakraborty,
the S.I. Police. Exh. A-3 to A-12 are the documents
produced before the Enquiry Officer. PW3, S.I. Jiban
Chakraborty, the Inspector of Police before the Enquiry
Officer deposed as follows :
“During investigation he arrested some
suspects into this case. In pursuance to the
statement of the suspects he arrested the C.O.
from his residence situated in 389, Milangarh,
Natagarh under P.S. Ghosla (24 Pgs.-N) on
26.11.03 at 01.05 hrs. He prepared the arrest
memo (Exhibit No.A5). He conducted in search
at this residence and recovered a sum of
Rs.10,000/- from his possession being the stolen
recovered money of the said case. He also
recovered the motor cycle bearing No.WB24F-
3050 from his house. During investigation he
also recovered one private car. He stated that
both the motor cycle and the private car were
used during the commission of the crime.
During investigation he came to know that the
O.C. is a Constable of Kolkata Police posted to
nd
2 Bn of Kolkata Police working on deputation
traffic deptt. The C.O. was produced before the
JUDGMENT
Page 9
10
Ld. Court of SDJM, Barrackpore and was
remanded to P.O. till 29.11.03 on further
production, the C.O. was remanded to jail
custody and enlarged on Bail on 30.3.04. After
completion of investigation he submitted
charge-sheet against the C.O. & others u/s
395/412 CPC, 25/27/35 Arms Act
During cross examination, the P.W. stated that
he seized motor cycle was registered in the
name of Sri Swapan Ghosh and the same was
seized from the possession of Swapan Ghosh.
During cross examination the P.W. stated that it
is not a fact that the C.O. has no complicity into
the case. After thorough investigation &
enquiry prima facie charge established against
the C.O. and others.
11. The Enquiry Officer believed the evidence of PW3
and concluded that the charges levelled against the
respondent were proved beyond any shadow of doubt,
except the charge that the respondent stayed out without
JUDGMENT
permission. PW3 had categorically stated that he
conducted a search at the residence of the respondent
and recovered a sum of Rs.10,000/- from his possession
being the stolen money. He had also recovered the motor
cycle bearing No.WB24F-3050 from the respondent’s
house which was used for the commission of the crime.
During the investigation, he had also recovered one
Page 10
11
private car from the respondent’s residence. Investigation
revealed that both the motor cycle and the private car
were used during the commission of the crime.
12. We have gone through the judgment of the Sessions
Court. Sessions Court though acquitted the accused
persons including the respondent, concluded as follows :-
“While there are vital evidence on the record
regarding recovery of money, recovery of
firearm, recovery of unused writing pad of Dr.
R.P. Mitra, but the most vital missing link is the
identification made by him in the TI Parade but
because of the time lag between the date of
incident and the date of TI Parade and the date
of his statement u/s 164 Cr.P.C. (1.12.03) and
the further time lag of about six days for the TI
Parade on 6.12.03 does not convince my mind
to accept such evidence relating to identity of
the accused persons during the trial could not
be bridged by the prosecution through any
evidence. The prosecution, therefore, fails as
the identity of the accused persons has not
been established before the Court during the
trial.”
JUDGMENT
13. We, therefore, notice that both the Disciplinary
Authority as well as the Sessions Court were of the view
that there are vital evidence on record regarding recovery
of money, fire arms and recovery of unused writing pad of
Dr. R.P. Mitra, PW3, the SI deposed further that the
Page 11
12
money was recovered from the house of the respondent
so also the motor bike as well as the car. The Sessions
Court, however, had to acquit the respondent since Dr.
R.P. Mitra could not identify him during the TI Parade. On
going through the judgment of the Sessions Court, it
cannot be said that the respondent was honourably
acquitted.
14. In Deputy Inspector General v. S. Samuthiram
[(2013) 1 SCC 598], this Court in paragraph 24, 25 and 26
of the judgment has elaborately examined the meaning
and scope of the “honourable acquittal” and held as
follows :-
“26. As we have already indicated, in the
absence of any provision in the service rules for
reinstatement, if an employee is honourably
acquitted by a criminal court, no right is
conferred on the employee to claim any benefit
including reinstatement. Reason is that the
standard of proof required for holding a person
guilty by a criminal court and the enquiry
conducted by way of disciplinary proceeding is
entirely different. In a criminal case, the onus
of establishing the guilt of the accused is on
the prosecution and if it fails to establish the
guilt beyond reasonable doubt, the accused is
assumed to be innocent. It is settled law that
the strict burden of proof required to establish
JUDGMENT
Page 12
13
guilt in a criminal court is not required in a
disciplinary proceedings and preponderance of
probabilities is sufficient. There may be cases
where a person is acquitted for technical
reasons or the prosecution giving up other
witnesses since few of the other witnesses
turned hostile, etc. In the case on hand the
prosecution did not take steps to examine
many of the crucial witnesses on the ground
that the complainant and his wife turned
hostile. The court, therefore, acquitted the
accused giving the benefit of doubt. We are not
prepared to say that in the instant case, the
respondent was honourably acquitted by the
criminal court and even if it is so, he is not
entitled to claim reinstatement since the Tamil
Nadu Service Rules do not provide so.”
15. The judgment of S. Samuthiram (supra) was later
followed by another Bench of this Court in Commissioner
of Police, New Delhi & Anr. V. Mehar Singh [(2013) 7
SCC 685].
16. We indicate that the respondent could not lay his
JUDGMENT
hand to any rule or regulation applicable to the Police
Force stating that once an employee has been acquitted
by a Criminal Court, as a matter of right, he should be
reinstated in service, despite all the disciplinary
proceedings. In otherwise there is no rule of automatic
reinstatement on acquittal by a Criminal Court even
Page 13
14
though the charges levelled against the delinquent before
the Enquiry Officer as well as the Criminal Court are the
same. On this aspect, reference may be made to para 27
of the judgment in S. Samuthiram (supra), which reads
as under:-
“27. We have also come across cases where the
service rules provide that on registration of a
criminal case, an employee can be kept under
suspension and on acquittal by the criminal
court, he be reinstated. In such cases, the
reinstatement is automatic. There may be cases
where the service rules provide that in spite of
domestic enquiry, if the criminal court acquits
an employee honourably, he could be
reinstated. In other words, the issue whether an
employee has to be reinstated in service or not
depends upon the question whether the service
rules contain any such provision for
reinstatement and not as a matter of right. Such
provisions are absent in the Tamil Nadu Service
Rules.”
JUDGMENT
17. Regulation 4 of Chapter 19 of the Police Regulations
of Calcutta, 1968, which is applicable to the case in hand,
specifically provides that acquittal or discharge in a
criminal proceeding shall not be a bar to award
punishment in a departmental proceeding in respect of
Page 14
15
the same cause or matter. The said Regulation is
extracted below for easy reference :
“4. Discharge or acquittal not a bar to
departmental punishment. – An order of
discharge or acquittal of a Police Officer shall
not be a bar to the award of departmental
punishment to that officer in respect of the
same cause or matter.”
18. Above rule indicates that even if there is identity of
charges levelled against the respondent before the
Criminal Court as well as before the Enquiry Officer, an
order of discharge or acquittal of a police officer by a
Criminal Court shall not be a bar to the award of the
departmental punishment. The Tribunal as well as the
High Court have not considered the above-mentioned
provision and have committed a mistake in holding that
JUDGMENT
since the respondent was acquitted by a Criminal Court of
the same charges, reinstatement was automatic. We find
it difficult to support the finding recorded by the Tribunal
which was confirmed by the High Court. We, therefore,
allow the appeal and set aside the order of the Tribunal,
Page 15
16
which was affirmed by the High Court. However, there
will be no order as to costs.
…..………………………J.
(K.S. Radhakrishnan)
………………………….J.
(A.K. Sikri)
New Delhi,
November 28, 2013.
JUDGMENT
Page 16