SHRI.K.RUSHKESH RAO vs UNION OF INDIA AND ORS.
- Court
- Calcutta High Court
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
[CIRCUIT BENCH AT PORT BLAIR]
PRESENT: THE HON’BLE JUSTICE SABYASACHI BHATTACHARYYA
AND
THE HON’BLE JUSTICE SMITA DAS DE
WP.CT/19/2026
SHRI K. RUSHKESH RAO ... PETITIONER
Versus
THE UNION OF INDIA AND OTHERS ... RESPONDENTS
For the Petitioner : Mr. Gopala Binnu Kumar,
Ms. Vinita Devi
For the respondents : Mr. Rakesh Kumar,
Mr. N. Naidu
Heard on : April 16, 2026 & April 17, 2026
Judgment on : April 22, 2026
SABYASACHI BHATTACHARYYA, J.
1. The petitioner was appointed under the respondent no. 2, the
Deputy Inspector General of Police (HQ), Andaman and Nicobar Islands,
in the year 2009 and was posted as a Home Guard at Car Nicobar under
the respondent no. 3, the Commandant, Home Guard Organization,
Andaman and Nicobar Islands.
2. On November 08, 2012 the petitioner was travelling in the sea
vessel ‘MV Kalighat’ and arrived at Mus Jetty, when he was apprehended,
being allegedly in possession of 45 bottles of IMFL (Indian Made Foreign
2
Liquor). An FIR was registered, bearing no. 37 of 2012 dated November
18, 2012 of the Car Nicobar Police Station and, pursuant thereto, a
criminal case was started against the petitioner under Section 32 of the
Andaman and Nicobar Islands Regulation (Regulation-III) of 1876.
3. Simultaneously, for the same offence, a disciplinary proceeding
was also initiated against the petitioner under Rule 14 of the Central
Civil Services (Classification, Control and Appeal) Rules, 1965. Ultimately,
the petitioner was acquitted in the criminal case. However, prior to the
same, on August 09, 2014, the Inquiry Officer submitted report in the
disciplinary proceeding, on the basis of which, vide Order No. 1392 dated
October 13, 2014, the respondent no. 3/Disciplinary Authority held the
petitioner to be guilty of the charge and dismissed the petitioner from
service.
4. The petitioner challenged the said decision before the respondent
no. 2, the Appellate Authority, which was pending for a considerable
period of time, prompting the petitioner to file Original Application No.
911 of 2020 before the Central Administrative Tribunal, Kolkata Bench,
Kolkata (Circuit Bench at Port Blair). During pendency of the said
challenge, the appeal of the petitioner was dismissed. The Tribunal, on
December 23, 2020, disposed of the Original Application by permitting
the petitioner to prefer a fresh appeal before the respondent
no.2/Appellate Authority by enclosing the copy of the acquittal order
dated September 04, 2019 passed by the criminal court.
3
5. The Appellate Authority, however, vide Order No. 346 dated
February 2, 2021, dismissed the appeal of the petitioner, affirming the
order of dismissal from his service dated October 13, 2014.
6. Being thus aggrieved, the petitioner preferred Original Application
no. 351/01100/2021. By the impugned judgment dated March 23, 2026,
the learned Tribunal disposed of the said Original Application by
quashing and setting aside the order of the Disciplinary Authority, which
had merged with the order of the Appellate Authority dated February 02,
2021, and remanding the matter to the Appellate Authority, directing it
to reconsider the case of the applicant for imposing any lesser
punishment then dismissal or removal from service, primarily on the
premise that in case of similarly circumstanced other employee(s), lesser
punishment than dismissal had been imposed.
7. Learned counsel appearing for the petitioner argues that the case
of the respondents against the petitioner was full of discrepancies. For
example, PW-1 Dydicus, in his cross-examination, admitted that the
petitioner was not carrying the seized bags of IMFL but it was in the bus
which was transporting the petitioner after his disembarkation from the
vessel to the gate of the Jetty. PW-7 Ashok Kullu also stated in his cross-
examination that the petitioner was not holding the bags, although those
were kept “nearby the seat” of the petitioner. Thus, it is argued that it
was never proved that the petitioner was in possession of the
incriminating bags of IMFL.
4
8. Again, whereas PW-1 stated in his cross-examination that the
seizure was effected at the Car Nicobar Police Station, PW-5 and PW-8
stated that the same took place at the main gate of Mus Jetty. Such
contradiction, it is submitted, vitiates the case of the respondents.
9. Moreover, all the seizure witnesses were police personnel and not a
single independent witness signed on the seizure list, despite the
admission by the respondents’ witnesses that there were several private
passengers present at the locale. It is argued that such fact itself vitiates
the seizure and, consequentially the allegation levelled against the
petitioner.
10. Learned counsel appearing for the petitioner further argues that in
view of the acquittal of the petitioner on merits by the criminal court on
the self-same charges and on the same set of evidence, the Disciplinary
Authority ought to have discharged the petitioner as well. In support of
such contention, learned counsel cites Ram Lal vs. State of Rajasthan
and others , reported at (2024) 1 SCC 175, where the Hon’ble Supreme
Court observed that the conclusion that the acquittal in the criminal
proceeding was after full consideration of the prosecution evidence and
the prosecution miserably failed to prove the charge can only be arrived
at after a reading of the judgment in its entirety. In view of the findings
of the criminal court in the said case, that the charges against the
appellant therein were “disproved”, and that the charges were not just
similar but identical in the disciplinary proceeding as well as the
criminal case, and the evidence, witnesses and circumstances were all
5
the same, the order of the Disciplinary Authority and the Appellate
Authority ought to be quashed.
11. Learned counsel for the petitioner also places reliance on a
coordinate Bench judgment of this Court in Shri U. Mohan Babu vs.
Union of India and others (WP.CT 43 of 2025) , where the coordinate
Bench, under similar circumstances, held that there was no justification
for the Tribunal to have remanded the matter to the Disciplinary
Authority for reconsideration but it should have set aside the order of the
Disciplinary Authority and Appellate Authority, as fresh consideration of
the matter by the Disciplinary Authority would be an exercise in futility
and completely unnecessary and that in view of the order passed by the
Tribunal relying on Supreme Court decisions, the Disciplinary Authority
was left with no choice in the matter but to close the departmental
enquiry.
12. Per contra , learned counsel appearing for the respondent-
authorities places reliance on Subrata Nath –vs- Union of India and others
(Civil Appeal Nos. 7941-7942 of 2022) , decided along with Union of India
and others vs. Subrata Nath (Civil Appeal Nos. 7939-7940 of 2022) , for
the proposition that judicial review is not an appeal from a decision but a
review of the manner in which the decision is made. The power of
judicial review is to ensure that the individual receives fair treatment and
not ensure that the conclusion which the authority reaches is
necessarily correct in the eye of law. The Court/Tribunal, in its power of
review, it was held, does not act as an Appellate Authority to
6
reappreciate the evidence and to arrive at its own independent findings
on the evidence but may interfere where the authority held the
proceeding against the delinquent officer in a manner inconsistent with
the rules of natural justice or in violation of statutory rules prescribing
the mode of inquiry or where the conclusion or finding reached by the
disciplinary authority is based on no evident.
13. It is contended that in the instant case, the principle of natural
justice were adhered to and opportunity of hearing and cross-
examination of the respondents’ witnesses was given to the petitioner.
Thus, there was no violation of natural justice and this Court ought not
to substitute its own views for that of the Disciplinary Authority or the
Appellate Authority.
14. Learned counsel also cites State of Karnataka and another vs.
Umesh , reported at (2022) 6 SCC 563 , for the proposition that acquittal
by a criminal court would not debar an employer from exercising the
power to conduct departmental proceeding in accordance with the rules
and regulations. The two proceedings, criminal and departmental, are
entirely different and operate in different fields, having different
objectives. It is argued that unless the rules of natural justice are
violated or the finding of misconduct is based on no evidence, the
jurisdiction under Article 226 of the Constitution cannot be exercised.
15. Next citing State Bank of India and others vs. P. Zadenga , reported
at (2023) 10 SCC 675 , learned counsel for the respondents contends that
the Hon’ble Supreme Court reiterated therein that the nature of the
7
proceedings being wholly separate and distinct, acquittal in criminal
proceeding does not entitle the delinquent employee to the benefit of
automatic discharge in the departmental proceeding.
16. Learned counsel for the respondents further contends that there
was sufficient material before the Disciplinary Authority and the
Appellate Authority to come to the conclusion that the petitioner was
guilty of the charges. Since the evidence was appreciated by the said
authorities and reasoned conclusions were arrived at by them, it is
submitted that there ought not to be any interference with the same.
17. It is further argued by the respondents that since the petitioner
belonged to the disciplined forces, higher standards of morality and
conduct than ordinary citizens was expected of him. Hence, the
parameters of adjudication by the Disciplinary Authority for such a
person cannot be equated with that of an ordinary citizen.
18. Lastly, learned counsel argues that the petitioner has no scope of
being aggrieved by the impugned judgment, since the same is
substantially in his favour, having set aside his dismissal/removal from
service and directing the Appellate Authority to consider imposition of
lesser punishment. Thus, it ought to be left to the domain of the
Appellate Authority as to what would be the nature and quantum of
punishment to be imposed.
19. Upon hearing learned counsel for the parties, certain salient
features are required to be noted.
8
20. The learned Chief Judicial Magistrate, Car Nicobar, acquitted the
petitioner of the offence under Section 32 of Regulation III of 1876 on
September 04, 2019. Although the inquiry report was filed by the Inquiry
Officer prior thereto on August 09, 2014, the order of the Disciplinary
Authority was passed subsequently on October 13, 2014.
21. Despite the earlier direction of the Tribunal in
OA/351/00911/2020 for the Appellate Authority to take into
consideration the acquittal order dated September 04, 2019, the
Appellate Authority reiterated its earlier decision by reaffirming the
order of dismissal of the Disciplinary Authority.
22. In such backdrop, the Court comes to the following conclusions:-
Discrepancies in the respondents’ case
23. The first gross lacuna which catches the eye is that all the material
witness, in particular PW-1 Dydicus (Head Constable, Car Nicobar, PS),
PW-5 (ASI V. Satyawati), and PW-8 (Inspector Edith Thomson), admitted
in their cross-examination in the Disciplinary Proceeding that there were
several other passengers /private persons present at the spot when the
seizure was allegedly effected. From the cross-examination of the
respondents’ witnesses in the Disciplinary Proceeding, it has clearly
come out that there were several private passengers apart from the
petitioner travelling in the bus, which carried the passengers after
disembarkation from the vessel to the gate of the jetty. It is elicited from
the cross-examination of PW-8 that approximately 150 passengers
9
disembarked at Mus Jetty from M.V. Kalighat on the relevant date. The
said witness further admitted that the carrying capacity of the police bus
(which was carrying the petitioner and other passengers), including
standing capacity, was about 40-50 passengers.
24. Thus, since the seizure was made in broad daylight and there were
numerous private individuals who were present at the spot at the time of
seizure, the obvious and proper course of action for the law enforcement
officials would be to take the signature of some members of the general
public on the seizure list as independent witnesses. No explanation
whatsoever comes forth as to why there was not a single independent
witness’ signature on the seizure list and all the seizure witnesses were
members of the raiding party (police personnel).
25. The second stark infirmity in the case sought to be made out
against the petitioner is the contradictory deposition of the respondents’
witnesses regarding the place of seizure of the IMFL. PW-1, the Head
Constable of the Car Nicobar Police Station, admitted in his cross-
examination that the seizure took place in the Car Nicobar Police Station
itself. Such admission was categorical and cannot be brushed aside as a
stray comment, since the witness stated in no uncertain terms that “it
was taken to PS Car Nicobar and seizure was effected in the PS”.
26. As opposed thereto, PW-5, the ASI and PW-8, the Inspector, stated
that the seizure was made near the gate of the Mus Jetty. Such patent
contradiction remained unexplained throughout the proceeding.
10
27. It may not be any of the above discrepancies which, in isolation,
vitiate the case of the petitioner but the cumulative effect thereof. The
fact that despite ample availability, not a single independent witness was
asked to sign the seizure list, nor was the discrepancy regarding the
place of seizure among the respondent witnesses explained, casts serious
doubt as to the validity of the seizure, which is the very foundation of the
chain of events linking the alleged offence to the petitioner.
28. Adding to the suspicion is the fact that the seizure was made
admittedly in a “Police Bus” which ferried the passengers from the vessel
to the gate of Mus Jetty. Although, per se , it may not cast suspicion on
the police personnel, since it is only for the convenience of the public
that the police bus is apparently used for such purpose, such factor
acquires importance as an additional component adding to the combined
effect of the other suspicious circumstances surrounding the seizure.
29. Although the present proceeding is not an appropriate one to
comment on such aspect of the matter, it would be appropriate if the
arrangement for transport for the short distance from the vessel to the
gate of the jetty is made in a vehicle belonging to the Administration or,
better still, the owners of the ferry, rather than using a police vehicle,
which might overshadow an otherwise proper seizure with the nagging
suspicion that there is an obvious conflict of interest, since the
apprehension of foul play cannot be ruled out altogether if the vehicle
where the contraband/prohibited substance is recovered belongs to the
investigating agency itself.
11
30. Be that as it may, it is also suspect as to whether the offending
bottles of liquor were actually seized from the possession of the petitioner.
Conspicuously, PW-1 stated that the petitioner was not carrying the
incriminating materials but the bags were kept “in the Bus”, without
specifying as to the exact location in the bus where it was kept or the
proximity of such location with the petitioner.
31. PW-7 also stated that the petitioner was not holding the bag, but it
was kept “nearby his seat”. The said statement is vague as to the exact
proximity of the incriminating bags from the petitioner, which becomes
relevant in view of the bus being packed with other passengers than the
petitioner, all of whom had disembarked from the vessel ‘MV Kalighat’
and were in the bus. The nexus between the petitioner and the
possession of the incriminating materials, thus, was not established at
all.
32. The Court is aware of the legal position that “possession” may be
of different shades and may not always meet the test of being actually
found on the person of the accused. However, in order to come within
the purview of “possession”, at least control and custody of the accused
vis-à-vis the contraband material ought to be proved. In the present case,
we do not find anything of that sort having been established by evidence.
33. Hence, even applying the yardstick of preponderance of probability,
as opposed to “beyond reasonable doubt’, we do not find any case worth
the name being made out against the petitioner; rather, there are serious
12
discrepancies in the respondents’ case and the seizure of the materials
itself is patently suspect.
Acquittal of the petitioner in the criminal case - effect
1
34. As held in State of Karnataka vs. Umesh (supra) and reiterated in
2
State Bank of India and others vs. P. Zadenga (supra) , the principles
governing a disciplinary enquiry are distinct from those which apply to a
criminal trial and the yardsticks of assessment of evidence are different
in the two.
35. There cannot be any quarrel with such general proposition.
However, it has to be noted that in P. Zadenga’s case, one of the
questions which fell for consideration was whether a criminal trial
creates a bar to the continuance of a parallel departmental proceeding,
in which context the Hon’ble Supreme Court rendered its findings.
36. Moreover, such general proposition stands qualified by the
3
principles laid down in Ram Lal’s case (supra) . In the said judgement,
the Hon’ble Supreme Court placed reliance, inter alia, on G.M. Tank vs.
State of Gujarat , reported at (2006) 5 SCC 446 , and observed that if the
charges in the departmental enquiry and the criminal court are identical
or similar and if evidence, witnesses and circumstances are one and the
same , then the matter acquires a different dimension.
1
(2022) 6 SCC 563
2
(2023) 10 SCC 675
3
(2024) 1 SCC 175
13
37. The relevant paragraphs of the said judgment in that regard are
quoted hereinbelow:
“13. Learned Senior Counsel made the following submissions:
(a) that there is no evidence to hold the appellant guilty or delinquent
for the charges framed against him in the departmental enquiry;
(b) that the acquittal of the appellant in the special case is a relevant
factor, as the appellant has been acquitted on merits and the
acquittal is clean and not based on benefit of doubt or any technical
proposition. The same evidence was led in the departmental
enquiry and, therefore, the dismissal order is bad in law;
(c) that the enquiry officer has given finding of fact in favour of the
appellant and despite that the enquiry officer has found the
appellant guilty of the charges;
(d) the additional fact was also brought to the notice of the Division
Bench that the Special Court has honourably acquitted the
appellant of the same charge on 30-1-2002 but the Bench has not
considered the same. The Division Bench failed to note the
difference between an exoneration and acquittal by giving benefit of
doubt. It routinely held that the writ court does not reappreciate or
re-examine the evidence led before the enquiry officer and that
unlike in criminal trial, the degree of proof in the domestic enquiry is
restricted to preponderance of probability and not beyond
reasonable doubt. The LPA was accordingly dismissed and the
order of the learned Single Judge was affirmed;
(e) Since the appellant has been exonerated of the charge, the appellant
is entitled to reinstatement with full salary, allowance and
subsequent promotions. In support of his contention, Mr L.N. Rao
relied on the following judgments:
1. Capt. M. Paul Anthony v. Bharat Gold Mines Ltd. [(1999) 3
SCC 679 : 1999 SCC (L&S) 810] (two Judges).
2. Union of India v. Jaipal Singh [(2004) 1 SCC 121 : 2004 SCC
(L&S) 12] (two Judges).
3. Commr. of Police v. Narender Singh [(2006) 4 SCC 265 : 2006
SCC (L&S) 686 : (2006) 4 Scale 161 : JT (2006) 4 SC 328] (two
Judges).
4. R.P. Kapur v. Union of India [(1964) 5 SCR 431 : AIR 1964 SC
787] (five Judges).
5. Corpn. of the City of Nagpur v. Ramchandra [(1981) 2 SCC 714
: 1981 SCC (L&S) 455 : AIR 1984 SC 626] (three Judges).
… …. …. ….
14
25 . The rulings cited by the learned counsel appearing for the respondent
are:
In Krishnakali Tea Estate v. Akhil Bharatiya Chah
Mazdoor Sangh [(2004) 8 SCC 200 : 2004 SCC (L&S) 1067] it was
argued before this Court on behalf of the respondent Sangh that the
Labour Court ought not to have brushed aside the finding of the
criminal court which according to the learned Single Judge
“honourably” acquitted the accused workmen of the offence before
it. The learned Judges were taken through the judgment of the
criminal court. The Bench was of the opinion that the acquittal by
the criminal court was “honourable” as it was based on the fact
that the prosecution did not produce sufficient material to establish
its charge which was clear from the following observations found in
the judgment of the criminal court: (SCC p. 211, para 25)
“Absolutely in the evidence on record of the prosecution
witnesses I have found nothing against the accused persons. The
prosecution totally fails to prove the charges under Sections 147,
353, 329 IPC.”
26 . Before the learned Judges, Paul Anthony case [(1999) 3 SCC 679 :
1999 SCC (L&S) 810] was relied on in regard to the above
contentions. The learned Judges held that the decision in Paul
Anthony case [(1999) 3 SCC 679 : 1999 SCC (L&S) 810] would not
support the respondent therein because in Paul Anthony
case [(1999) 3 SCC 679 : 1999 SCC (L&S) 810] the evidence led in
the criminal case as well as in the domestic enquiry was one and
the same and the criminal case having acquitted the workmen on
the very same evidence and this Court came to the conclusion that
the finding to the contrary on the very same evidence by the
domestic enquiry would be unjust, unfair and rather oppressive.
The Bench further held as follows: (Krishnakali Tea Estate
case [(2004) 8 SCC 200 : 2004 SCC (L&S) 1067] , SCC pp. 211-12,
para 26)
“It is to be noted that in that case the finding by the Tribunal
was arrived at in an ex parte departmental proceeding. In the case
in hand, we have noticed that before the Labour Court the evidence
led by the management was different from that led by the
prosecution in the criminal case and the materials before the
criminal court and the Labour Court were entirely different.
Therefore, it was open to the Labour Court to have come to an
independent conclusion dehors the finding of the criminal court. But
at this stage it should be noted that it is not as if the Labour Court
in the instant case was totally oblivious of the proceedings before
the criminal court. The Labour Court has in fact perused the order of
the Judicial Magistrate and the exhibits produced therein and come
to an independent conclusion that the order of the criminal court
has no bearing on the proceedings before it; which finding of the
Labour Court, in our opinion, is justified.”
15
27. In Ajit Kumar Nag v. G.M. (PJ), Indian Oil Corpn. Ltd. [(2005) 7
SCC 764 : 2005 SCC (L&S) 1020] this Court in para 11 held as
under: (SCC p. 776)
“11. As far as acquittal of the appellant by a criminal court is
concerned, in our opinion, the said order does not preclude the
Corporation from taking an action if it is otherwise permissible. In
our judgment, the law is fairly well settled. Acquittal by a criminal
court would not debar an employer from exercising power in
accordance with the Rules and Regulations in force. The two
proceedings, criminal and departmental, are entirely different. They
operate in different fields and have different objectives. Whereas
the object of criminal trial is to inflict appropriate punishment on the
offender, the purpose of enquiry proceedings is to deal with the
delinquent departmentally and to impose penalty in accordance
with the service rules. In a criminal trial, incriminating statement
made by the accused in certain circumstances or before certain
officers is totally inadmissible in evidence. Such strict rules of
evidence and procedure would not apply to departmental
proceedings. The degree of proof which is necessary to order a
conviction is different from the degree of proof necessary to record
the commission of delinquency. The rule relating to appreciation of
evidence in the two proceedings is also not similar. In criminal law,
burden of proof is on the prosecution and unless the prosecution is
able to prove the guilt of the accused ‘beyond reasonable doubt’, he
cannot be convicted by a court of law. In a departmental enquiry,
on the other hand, penalty can be imposed on the delinquent officer
on a finding recorded on the basis of ‘preponderance of probability’.
Acquittal of the appellant by a Judicial Magistrate, therefore, does
not ipso facto absolve him from the liability under the disciplinary
jurisdiction of the Corporation. We are, therefore, unable to uphold
the contention of the appellant that since he was acquitted by a
criminal court, the impugned order dismissing him from service
deserves to be quashed and set aside.”
38. Hence, while recognising the general principle that the scope of a
disciplinary proceeding and a criminal trial are different, where charges,
evidence and circumstances leading to both are identical and similar, the
Court would be entitled to exercise its discretion and grant relief, if it
concludes that allowing the findings in the disciplinary proceeding to
stand will be unjust, unfair and oppressive.
39. The Hon’ble Supreme Court clearly observed that the acquittal in
the criminal proceeding there (as in the instant case) was after full
16
consideration of the prosecution evidence and the conclusion that the
prosecution miserably failed to prove the charge could only be arrived at
after a reading of the judgment in its entirety.
40. Thus, in principle, the position consolidated in State of Karnataka
4 5
vs. Umesh (supra) and P. Zadenga’s (supra) case was noted and agreed
6
with in Ram Lal (supra) but a distinction was drawn in respect of cases
where the charges, materials, witnesses and circumstances in both the
criminal proceeding and the disciplinary action are identical or similar.
This takes us to the next issue.
Findings of the criminal court
41. In the present case, the self-same set of witnesses, barring one, as
well as the evidence which was placed before the criminal court in the
proceedings under Section 32 of Regulation-III of the 1876 was also
before the Disciplinary Authority.
42. The criminal court arrived at the finding that on perusal of
evidence and records, it appeared that no sample was taken from the
alleged seized bottles and sent for chemical analysis to ascertain the
nature of the liquid contained in the bottles. Such omission was held to
be serious laches on the part of prosecution which could not be filled up
by oral evidence. On such premise, it was observed by the criminal court
that the prosecution had failed to prove that the seized materials were
4
(2022) 6 SCC 563
5
(2023) 10 SCC 675
6
(2024) 1 SCC 175
17
indeed liquor found from the possession of the accused, for which the
accused person had no valid document. It is relevant to note that such
aspect also vitiated the Disciplinary Proceeding of the petitioner.
43. The next important observation of the criminal court was that
there was no evidence as to how the alleged materials were sealed and
labelled for future identification and so, the materials on record were
shaky and not sufficient to hold that those were the same bottles which
were seized from the accused person.
44. Thirdly, the criminal court, after consideration of the evidence on
record, come to the conclusion that the prosecution must prove the
signature of the accused on the paper label pasted over the seized
materials, which was missing in the case.
45. It was further observed that the alleged seizure was made in broad
daylight in a public place but the police did not obtain any signature of
the public on the seizure list. The court went on to observe further that
if there had been no independent witness at the time and place of seizure,
then the lack of independent witness of seizure would not have much
consequence; but when there was possibility of having independent
witnesses, they had to be made witnesses to the seizure. The prosecution,
it was held, did not explain as to why they did not take independent
witnesses to the seizure.
46. It was also held that the prosecution had failed to bring any iota of
evidence that the accused had committed the alleged offence. The
criminal court went on to observe that no guilt of the accused was
18
proved beyond reasonable doubt but added that “the essential
ingredients to connect the accused person with the offence” were very
much absent.
47. Thus, the acquittal in the criminal case was not done in a cursory
manner only on the cornerstone of “beyond reasonable doubt". Rather,
on a thorough examination of the material evidence, the Chief Judicial
Magistrate came to the conclusion that even the essential ingredients to
connect the accused with the offence was absent.
48. Moreover, the same maladies that afflicted the prosecution case in
the criminal case vitiated the case made out by the respondents in the
Departmental Proceeding as well.
49. While elaborating on the first issue, this Court also independently
arrived at the same conclusions as the criminal court. However,
surprisingly, nether the Disciplinary Authority nor the Appellate
Authority took into consideration such crucial aspects of the evidence at
all.
50. The Appellate Authority, even after the remand order having
specifically granted the petitioner leave to rely on his acquittal order in
the criminal case, failed to take into consideration substantively the
judgment of the criminal court, thereby flouting the order of remand by
passed by the Tribunal on the earlier occasion. Rather, in a cryptic
fashion, the Appellate Authority arrived at the conclusion that there was
nothing material to rebut “utterly” the allegation made against the
charged officer. Thus, neither the Disciplinary Authority nor the
19
Appellate Authority adverted to the most germane discrepancies in the
prosecution case and as such, the findings of both the said authorities
are clearly vitiated by patent perversity.
7
51. Although in Subrata Nath (supra) , the Hon’ble Supreme Court
cautioned against the reappreciation of evidence by the Division Bench of
the High Court by arrogating itself to the position of an Appellate
Authority, even without reappreciation of evidence, on an ex-facie glance
at the materials on record in the instant case, it is evident that the
findings and conclusions of both the authorities were based on no
evidence and that the said authorities failed to take into consideration
the most germane lacunae in the respondents’ allegations against the
petitioner. This tantamounts to patent perversity, which is one of the
grounds of interference under Article 226 of the Constitution of India,
8
even going by the ratio laid down in Subrata Nath (supra) as well as
9
State of Karnataka Vs. Umesh (supra) .
52. In view of the above discussions, the ratio laid down in Ram Lal
10
(supra) is squarely applicable and even independently, we come to the
conclusion that the observations of the criminal court in identical
circumstances/allegations and on the basis of self-same set of evidence
corroborate our independent observations as to the glaring lacunae in
the prosecution case.
7
Civil Appeal Nos. 7941-7942 of 2022
8
Civil Appeal Nos. 7941-7942 of 2022
9
(2022) 6 SCC 563
10
(2024) 1 SCC 175
20
53. The coordinate Bench judgment of this Court in Shri U. Mohan
11
Babu (supra) is apt in the context, where, under similar circumstances,
12 13
the said Bench relied on Ram Lal (supra) and G.M.Tank (supra) and
observed that if the charges in the criminal action and the departmental
proceeding are identical or similar and the evidence, witnesses and
circumstances are also the same, the Court, sitting in judicial review,
can come to the conclusion that the acquittal was after due appreciation
of the facts of the case and assimilation of the evidence and quash the
disciplinary proceeding as unjust, unfair and oppressive.
Higher Standard for Discipline Forces
54. Learned counsel for the respondents places much reliance on the
fact that the petitioner was a member of the disciplined forces and as
such has to be adjudged on higher standards of morality and integrity
than an ordinary citizen. This Court has absolutely no qualms with the
above proposition. However, such higher standard is only a yardstick of
judging the conduct and deciding the punishment, provided the
threshold of foundational evidence of the charges and the alleged
“misconduct” are crossed. Even in order to apply such touchstone of
higher standard, the prosecution /disciplinary authority has to traverse
the stage of proving the foundational facts for establishing the
misconduct of the accused person.
11
WPCT 43 of 2025
12
(2024) 1 SCC 175
13
(2006) 5 SCC 446
21
55. In the present case, the evidence is heavily balanced in favour of
the accused person and against the respondent-authorities. Both from
the findings of the criminal court and the evidence led in the disciplinary
proceeding itself, we conclusively find that the connection between the
petitioner and the alleged offence was never established, even apart from
there being serious lacunae, such as omission of any independent
witness in the seizure list despite the admitted presence of several
private individuals on the spot, which vitiated the very process of seizure.
There are too many missing links between the petitioner and the alleged
offence to incriminate the petitioner, even on the test of preponderance of
probabilities, and the so-called ‘higher standard’ for disciplined forces
does not come into play, since no misconduct has been proved against
the petitioner at all. Such standards would apply only upon the
misconduct being prima facie proved, which is conspicuous by its
absence in the present case.
Legality of the remand
56. We find from the impugned judgement of the Tribunal that the
learned Tribunal entirely omitted to advert to the foundational challenge
by the petitioner in his Original Application on the merits of his
indictment. The learned Tribunal, by adopting a peripheral approach,
merely adverted to other similarly circumstances accused persons having
been let off with lesser punishment and remanded the matter to the
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Appellate Authority in a cursory manner, merely for the purpose of
ascertaining the quantum of such lesser punishment.
57. It is no longer res integra, that a decision which ignores the
‘foundational challenge’ that is, the core legal or factual basis upon
which the petitioner’s case rests, is considered a violation of principles of
natural justice. In a plethora of cases, the Hon’ble Apex Court has held
that reasons are the ‘live links’ between the mind of the decision maker
and the controversy. It is a well settled proposition of law, as held in the
case of S. N. Mukherjee vs. Union of India reported at (1990) 4 SCC 594,
that the Administrative and Quasi Judicial Authorities must record
reasons. If a petitioner challenges the very legality of the charges (the
indictment) the Tribunal cannot skip to the procedural aspects without
first determining if the foundation of charge is legally sustainable.
58. However, the learned Tribunal failed to advert to the gross lacunae
in the case of the respondents, in view of which, read in conjunction with
the acquittal in a criminal case upon assessment of the entire evidence,
the petitioner was entitled to total exoneration without being saddled
with any punishment whatsoever.
59. Thus, the remand order, although on the face of it in favour of the
petitioner, hits at the root of the rights of the petitioner by not setting
aside the observations of both the authorities below as to the alleged
involvement of the petitioner in the crime altogether. The learned
Tribunal, in the circumstances of the present case as discussed above,
ought to have set aside the orders of both the authorities outright and
23
exonerate the petitioner honourably from the entire allegations against
him. Instead of doing so, the learned Tribunal left it to the Appellate
Authority to impose lesser punishment for an offence which has not even
been proved against the petitioner.
60. We say so all the more because it is found from the grounds taken
in the Original Application that the petitioner had preferred a
comprehensive challenge before the Tribunal, not merely seeking lesser
punishment but also hitting at the legality and validity of the findings of
guilt against him in its totality. Thus, the learned Tribunal failed to
exercise the jurisdiction vested in it by law in merely remanding the
matter on the ground of parity with other co-accused and not acquitting
the petitioner entirely of the allegations of misconduct made against him.
61. If the record is clear and the indictment is ex facie, illegal or barred
by law, the superior Court may exercise its own power to quash the
proceeding to prevent further miscarriage of justice.
Conclusion
62. Accordingly, WPCT/19/2026 is allowed on contest, thereby setting
aside the impugned judgment dated March 23, 2026 passed by the
Central Administrative Tribunal, Kolkata Bench, Kolkata (Circuit Bench
sitting at Port Blair) in O.A.No.351/0110/2021 as well as quashing and
setting aside the impugned Order No. 346 dated February 02, 2021
passed by the Appellate Authority and the order dated October 20, 2014
passed by the Disciplinary Authority and acquitting and exonerating the
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petitioner honourably on all charges levelled against him by the
respondents in the disciplinary proceeding.
63. The respondents are directed to reinstate the petitioner in service
in his previous post immediately and to restore all consequential benefits
to the petitioner.
64. There will be no order as to costs.
65. Urgent Photostat certified copies of this judgment, if applied for, be
supplied to the parties upon compliance with all requisite formalities.
(SABYASACHI BHATTACHARYYA, J.)
I agree.
(SMITA DAS DE, J.)