Daljeet Singh Vs State of Hp

Petitioner had filed this petition as Original Application No.1455 of 2019 before Erstwhile H.P. State Administrative Tribunal. On abolition of erstwhile Tribunal, it was transferred to this High Court and registered as present petition CWPOA No.6569 of 2020.

¶17

Petitioner has approached the Court against his dismissal from service as a consequence of major penalty imposed upon him by the Authority under Rule 11 (ix) of Central Civil Services (Classification, Control and Appeal) Rules, 1965 after 21 years of service by accepting Departmental Inquiry Report conducted in pursuance to Office Order No.P-III(2) 1 Whether reporters of the local papers may be allowed to see the judgment?

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D.S./04-II/17756 dated 05.07.2004 (Annexure R-1) by Inquiry Officer appointed by Director General of Police, H.P., Shimla, on the charges that during surprise checking of Cash Chest, a sum of `1,07,449/- was found short and there was unauthorized absence of the petitioner on different occasions, for a total period of 43 ½ days. At the relevant time, petitioner was posted in 2^nd India Reserve Batallion, Jungle Beri, as Junior Assistant.

¶20

After receiving finding from the Inquiry Officer, copy of Inquiry Report was supplied to the petitioner alongwith Show Cause Notice dated 28.04.2007 which was subsequently withdrawn on technical ground. Thereafter, vide memo dated 25.06.2007 (Annexure R-2) petitioner was directed to submit representation, if any, against Inquiry Report, within fifteen days.

¶21

Petitioner had submitted representation against finding of Inquiry Officer, but the same was considered to be devoid of any merit by the Authority and consequently a Show Cause Notice dated 07.11.2007 (Annexure R-3) was served upon the petitioner proposing penalty of dismissal from service under Rule 11(ix) of CCS (CCA) Rules, 1965 referring gravity of the charge against the petitioner for violation of provisions of Rule 3 of CCS (Conduct) Rules, 1964 and CCS (Leave) Rules, 1972 by accepting Inquiry Report with finding that following charges have been proved against the petitioner:-

¶22

“(i) During his temporary posting in the office of Commandant 2^nd IRBn. Jungle Berry w.e.f. 10.4.01 to 13.6.03 on suspicion, a surprise checking of cash chest was made and a sum of Rs. 1,07,449/- was found short in the cash chest; and

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(ii) Sh.Daljeet Singh, Jr. Asstt. willfully absented himself from his duty a number of times for total 43 ½ days (i.e. 44 days) during the period of 16.1.02 to 15.12.02.”

¶25

Petitioner had submitted his representation against proposed penalty on 22.11.2007 which was rejected and ultimately penalty of dismissal from service was imposed vide order dated 07.12.2007 (Annexure A-1).

¶26

The aforesaid punishment order dated 07.12.2007 was assailed by the petitioner by filing Original Application No.3154 of 2007 before erstwhile H.P. State Administrative Tribunal.

¶27

Erstwhile Tribunal vide order dated 10.01.2008 directed the Principal Secretary (Home) to the Government of Himachal Pradesh to treat O.A. as representation and decide the same within eight weeks after giving personal hearing to the applicant-petitioner.

¶28

At the same time, petitioner had also preferred appeal dated 09.01.2008 to Principal Secretary (Home) to the Government of H.P., under CCS CCA Rules against the impugned order passed on conclusion of Departmental Inquiry. Therefore, O.A./representation of the petitioner was disposed of on 12.11.2008 after giving him opportunity of personal hearing on 10.03.2008.

¶29

Appellate Authority [(Principal Secretary (Home) to the Government of H.P.)] dismissed the appeal vide order dated 10.02.2009 (Annexure R-4).

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According to the respondents, the aforesaid order was duly communicated to the petitioner vide letter dated 11.02.2009 (Annexure R-5).

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Apart from Departmental proceedings, for alleged misappropriation of Government money, a criminal case FIR No.9 of 2004 dated 09.01.2004 under Sections 409, 467 and 468 of the Indian Penal Code was also registered against the petitioner in Police Station Sujanpur, District Hamirpur, H.P. Petitioner was subjected to trial before the Judicial Magistrate, First Class, Court No.1, Hamirpur and was convicted for commission of offence punishable under Sections 409, 467 and 471 of IPC vide judgment dated 17.12.2012 and was sentenced to undergo imprisonment for 3 years and pay fine of `5000/- for each offence and in default of payment of fine, to further undergo imprisonment for 7 days for each offence. All sentences were ordered to run concurrently.

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Against conviction, petitioner preferred Criminal Appeal No.02 of 2013, before Sessions Judge, Hamirpur. The Appellate Court (Sessions Judge) vide judgment dated 23.09.2017 (Annexure A-3) accepted the appeal and set aside the judgment of the Trial Court, resulting into acquittal of the petitioner of the offences charged against him.

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According to petitioner, he was not aware about passing of order dated 10.02.2009 whereby appeal, preferred by the petitioner against Departmental action was dismissed as the said order dated 10.02.2009 by the Appellate Authority [Principal

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Secretary (Home)] alleged to be communicated vide order dated 11.02.2009 (Annexure R-5), was never communicated to the petitioner.

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According to petitioner, he after acquittal in criminal case by Sessions Judge, Hamirpur, for having information/fate of his representation and appeal had submitted an application dated 27.11.2017 under Right to Information Act, 2005 (in short ‘RTI Act’) to get decision thereon by the Home Department alongwith noting sheet.

¶38

In response to the application filed under RTI Act, photocopies of notes on file and impugned order dated 10.09.2009 was supplied to the petitioner on 08.01.2018.

¶39

Thereafter, petitioner approached the Authority to reinstate him by submitting representation dated 12.03.2018 (Annexure A-4) to DGP requesting his reinstatement w.e.f. 07.12.2007 with all consequential benefits.

¶40

In the meanwhile, State preferred Criminal Appeal against judgment of acquittal of the petitioner by Sessions Judge after delay of 218 days in filing the same in July 2018. Vide order dated 29.10.2018 delay in filing the appeal was condoned and appeal was admitted for hearing after assigning it registration Number Cr.Appeal No.429 of 2018.

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Aforesaid Cr.Appeal No.429 of 2018 has been dismissed by the High Court on 18.08.2023.

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Grievance of the petitioner is that he was framed wrongly and his 43 ½ days leave period had been regularized by the respondent-Authority after treating the said period as dies non vide office order dated 07.12.2007 issued by the DGP.

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In reply filed in response to present petition, aforesaid facts were admitted with submission that judgment of acquittal passed by the Sessions Judge, had been assailed by the respondent-Department by filing an appeal (Cr.Appeal No.429 of 2018) in the High Court, and the said appeal is pending adjudication after admitting, and thus it was contended that, in the given circumstances, representation (Annexure A-4) preferred by the petitioner could not be decided till the final outcome of the appeal pending adjudication before the High Court and, thus, it was claimed that O.A. (present petition) was not maintainable and at that stage it deserved to be dismissed.

¶45

As per reply of the respondent-State, on his temporary deployment in 2^nd IRBn w.e.f. 01.04.2001 to 13.06.2003 from State CID for looking after the work relating to accounts under the supervision of Accountant in the office of Superintendent of Police, Hamirpur, the petitioner was discharging duties of Cashier in consonance with nature of duties assigned to the petitioner.

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On 10.07.2001, petitioner, for shifting of Headquarter of 2^nd IRBn from Hamirpur District to Jungle Beri, petitioner was handed over cash amounting to `14,35,503/-.

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During surprise checking of cash chest by the Competent Authority, `1,07,449/- were found short and petitioner was also found absent on various dates unauthorizedly on different occasions for 44 days.

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At this stage, it is also relevant to record that though no such objection was ever raised either before the erstwhile Tribunal or in this Court either by filing reply or any other means that present petition is not maintainable on account of being time barred or on account of delay and laches, however, during hearing learned Additional Advocate General, has raised this issue whereupon Dispatch Register of the Principal Secretary (Home) was summoned and photocopy of relevant page was retained.

¶50

In afore Register, on 11.02.2009, 16 letters have been entered to have been dispatched/sent to various offices and authorities from the Department of Home. At Sr. No.16 letter No.Home (A)E(3)-106/2007 is stated to have been sent to learned Additional Advocate General. Though below it, it has also been written C/O Daljit Singh son of late Sh.Jaswant Singh, Rakkar, Kangra, but this entry appears to have been made lateron because letter No. Home(A)E(3)-3/2009 at Sr. No.3, was sent to Superintendent of Police, Nalagarh and copy thereof was sent to the Advocate General, Himachal Pradesh, but making separate entry in this regard with separate dispatch at Sr. No.4. 26. Similarly, letter No. Home(A)C(5)-5/2008 was sent to various offices, including Senior Deputy Accountant General (ASE) H.P., Accountant General (Audit), H.P., Shimla and Senior

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Accountant General (A & E) H.P. on 11.02.2009. In this matter also, first letter was mentioned at Sr.No.5 and other letters/copies of letters were recorded and mentioned at Sr. Nos.6, 7 and 8 by writing “-do-”, “-do-”, “-do-” in place of letter numbers by mentioning corresponding authorities against Serial Numbers in the third column. Whereas, in case of petitioner ‘- do-’ word has not been written but only O/O has been mentioned and thereafter, name of Daljeet Singh has been shown against it, but there is no Serial Number of this entry.

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It is also relevant to notice that not only instead of “- do-” word “O/O” has been written below the entry at Sr.No.16 in the bottom. Further that Dealing Hand/Peon of the Dispatch Branch has endorsed receipt of 16 letters. Whereas, including letter alleged to have been sent to Daljeet Singh, there should have been 17 letters particularly when in other case(s) copy of the same letter while sent to different offices/persons, has been entered separately by assigning separate number for the purpose of dispatching the said letter to the concerned Authorities/Offices. Therefore, plea of learned Additional Advocate General that communication of rejection of representation/appeal was communicated to the petitioner on 11.02.2009 has not been substantiated by contemporary record and, thus, plea of learned Additional Advocate General to reject the petition being time barred or on account of delay and laches, is not sustainable.

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Though acquittal in criminal case cannot be a ground to absolve or exonerate in Departmental Inquiry because in both proceedings different standard of proof is required to establish and substantiate case of the prosecution/ Department, however, it is stand of the State that representation of the petitioner to reinstate him could not be considered and decided till final outcome of the appeal pending adjudication before the High Court.

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Neither petitioner nor State has placed on record Inquiry Report.

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Plea of Additional Advocate General, based on stand of the State in reply, is that representation preferred by the petitioner (Annexure A-4) could not be decided till the final outcome of the appeal pending adjudication before the High Court of Himachal Pradesh.

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It is also apt to record that Criminal Appeal No.429 of 2018 preferred by the State has been dismissed vide judgment dated 18.08.2023 passed by a Division Bench of this High Court, authored by Mr.Justice Ranjan Sharma, Judge. For stand taken by the State, following paragraphs of the said judgment may be relevant to quote here:-

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9. ANALYSIS: QUA CHARGE UNDER SECTION 409 IPC

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9(i). At the very outset, we proceed to test the veracity of the prosecution story that the accused misappropriated a sum of Rs.1,88,916/-, which was entrusted to him, as the balance was in fact Rs.5,42,559/- but he showed this amount as Rs.3,53,643/-.

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8(ii). From the very inception, PW-1 ( R.M.Sharma) has generated a doubtful story by testifying that an amount of Rs.1,88,916/- has been misappropriated by accused or by ASI Kuldeep Chand when ASI Kuldeep Chand was not produced/examined. However, prosecution examined PW-8 (Kamlesh Kumari), who deposed that her husband Kuldeep Singh Rana had died on 18.05.2004. Even the F.I.R. pertaining to the incident of the year 2001 was registered on 9.1.2014, vide Ex.PW16/A, at the instance of PW-1 (R.M.Sharma), who was erstwhile Commandant of 2nd Indian Reserve Battalion, Jangal Bairi. PW-1 (R.N.Sharma) is not certain about the alleged amount as on one hand, he testifies that an amount of Rs.1,88,916/- has been misappropriated but at the same time he deposes that the misappropriated amount was Rs.1,83,000/- and further testifies that as per audit report Ex.PW-2/A, the net shortage was of Rs.1,86,692/-.

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8(iii). PW-6 (H.C Krishan Kumar), who admits to be the Cashier of S.P. Office, Hamirpur as well as of the office of Commandant 2nd Indian Reserve Battalion, Jangal Bairi, has deposed that as per the Road Certificate No.15/2001 dated 10.07.2001, Ex. P-1, an amount of Rs.14,35,803/- was handed over to accused as per details in Ex. P-2. He further admits that Expenditure Sheet, i.e. Ex. PW-1/B, have been prepared by him. He stated that he handed over the records i.e. Ex. P-1 to Ex.P-5 and Ex.PW-1/B to the Police on 07.02.2004. Statement of PW-6 (HC Krishan Kumar) aggravates the doubt(s) in the prosecution story in view of the fact that on one hand he deposes that as per Road Certificate No.16/2001 dated 16.07.2001, Ex. P-3, an amount of Rs.1,88,916/- was sent by him to accused-Daljeet Singh but this amount was returned to him by the accused as per Road Certificate No.1/2001 dated 11.10.2001, Ex.P-4. He further deposes that as per Road Certificate No.142/2001 dated 11.10.2001, Ex.P-5, an amount of Rs.12,46,887/- was sent by him (PW-6, Krishan Kumar) to the accused-Daljeet Singh, but he further states that Ex.P-5 was cancelled; which lacks credence as the cancellation qua Ex.P-5 was not proved. Additionally, PW-6 (Krishan Kumar) has deposed that on 03.07.2003 i.e. Ex. P-22/F, he had deposited a sum of Rs.1,88,916/- creates suspicion when, no material has been proved to justify as to who gave this amount to PW-6, at whose instance, on which date and for what purpose because it is highly improbable that why did he deposit the amount, if not, misappropriated by him. No records of penalty allegedly imposed on PW-6, Krishan Kumar, were produced. Moreover, PW-6 himself admits that he was the Cashier on relevant time and even a perusal of Ex. P-5 and Ex. P-22/F also negates the prosecution story as PW-6, being Cashier had remitted only Rs.12,46,887/- but misappropriated Rs.1,88,916/- (deposited subsequently).

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8(iv). The prosecution has also failed to prove whether this amount of Rs.1,88,916/- was a part of the amount of Rs.14,35,803/- (as in Ex. P-1, Ex.P-2 and Ex. PW-1/B) or was part of an amount of Rs.1,88,916/-, which was returned by accused on 11.10.2001, Ex. P-4 or was part of an amount of Rs.1,88,916/-, which was deposited by PW-6 (HC Krishan Kumar) on 03.07.2003, Ex.P-22/F or was an amount in addition to amount of Rs.12,46,887/-, Ex.P5 (supra). The prosecution has failed to produce the cash book and the ledger(s), which were duly maintained and inspected by higher authorities. The prosecution has failed to establish entrustment and the dishonest intention of the accused in alleged misappropriation when, it is PW-6, Krishan Kumar, who being the Cashier at relevant time, who had misappropriated this amount, which admittedly was deposited by him on 03.07.2003, Ex.P-22/F. In absence of any proof of entrustment; dishonest intention to misappropriate and violation of any direction of law or any legal contract, the entire prosecution story is untrustworthy, lacks credence, is doubtful and needs to be discarded.

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Besides the above, the prosecution story suffers from serious and material inherent contradictions, which as detailed here-in-below:-

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10(i). DISCREPANCY WITH RESPECT TO AMOUNT ALLEGEDLY MISAPPROPRIATED:

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A perusal of F.I.R. Ex.PW-1/A and the charge framed on 6.7.2007 by learned Trial Court, specifically alleges that the respondent-accused has misappropriated an amount of Rs.1,88,916/-, which is in total contradiction to the audit report dated 5.6.2003 Ex.PW-2/A whereby the net shortage of funds of minor work was shown to be Rs.1,86,692/-. In addition to this, an amount of Rs.1,86,692/- has been shown as alleged shortage in para 8 of the instant appeal. In view of these material contradiction(s) the entire prosecution story that the respondent-accused has misappropriated an amount of Rs.1,88,916/- is under shadow of doubt.

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- 10(ii) DISCREPANCY REGARDING PERSONS AL LEGEDLY INVOLVED IN MISAPPROPRIATION:

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PW-1, R.M.Sharma, who was the then Superintendent of Police, Hamirpur, and was also holding the additional charge of Commandant, 2nd Indian Reserve Battalion, Jangal Bairi, has specifically deposed that the alleged misappropriation was done by the respondent-accused herein or by the Accountant ASI Kuldeep Chand in collusion with each other. The prosecution has failed to examine the aforesaid ASI Kuldeep Chand. However, a perusal of the statement of PW-8 Kamlesh Kumari reveals that

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one Sh. Kuldeep Singh Rana, ASI, expired on 18.04.2004. In absence of any proof of charge, mere statement of PW-1, cannot be taken as gospel truth.

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- 10(iii) PROSECUTION STORY BASED ON AUDIT RE PORT:

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In Audit Report Ex.PW-2/A, dated 5.6.2003 the net-shortage was shown of Rs.1,86,692/- which is in total variance to the alleged misappropriated amount of Rs.1,88,916/-. In addition to this, the Audit Report Ex.PW-2/A cannot be used against the accused when, the Section Officer, who conducted the aforesaid audit, had neither associated nor he had issued any notice to the accused to participate during audit. Even the accused was not apprised of the records which were relied upon by audit. Thus, the audit conducted behind the back of accused cannot be relied upon against the accused.

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- 10(iv). DEPOSIT AND RETURN OF Rs.1,88,916/

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A perusal of Ex.P-3, Road Certificate reveals that though the amount of Rs.1,88,916/- was sent to the Accounts Branch and handed over to accused Daljeet Singh but a perusal of Ex.P-4 dated 11.10.2001 i.e. the Road Certificate undoubtedly establishes that Rs.1,88,916/- was returned by the accused to the Incharge Accounts, S.P.Office. In view of this, once the alleged amount was returned to the Incharge Accounts, S.P.Officer, Hamirpur then, the entire prosecution story as contained in F.I.R. i.e. Ex.PW-1/A and the charges framed on 6.7.2001 falls to the ground.

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10(v).

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DEPOSIT OF Rs.1,88,916/- BY PW-6 KRISHAN KUMAR:

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In cross-examination PW-1 (R.M.Sharma) admits that Rs.1,88,916/- was deposited by PW-6 (H.C Krishan Kumar), which is also admitted by PW-6 in cross-examination that he had deposited the amount of Rs.1,88,916/- on 3.7.2003 vide Ex.PW-22/F. A perusal of the statement of PW-6 further reveals that this amount was deposited as the head of department had imposed a penalty on him. This statement of PW6 creates doubt with respect to the factum and rational behind the deposit of this amount. Had any department proceedings and penalty been imposed for which the aforesaid amount of Rs.1,88,916/- was deposited by PW-6, then, the prosecution was duty bound to examine the records and to corroborate the veracity of such statement as to whether the aforesaid amount was deposited was result of penalty so imposed or not. In absence of any such collaboration, the deposition of PW-6 that the amount so deposited in lieu of penalty is unbelievable. However, once the amount of Rs.1,88,916/- has

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admittedly been deposited then, prosecution story alleging misappropriation is without any foundation leading the prosecution edifice to consequently fall.

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10(vi). DEPOSIT OF AMOUNT BEFORE F.I.R.

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A perusal of F.I.R. Ex.PW-1/A, reveals that it was registered as F.I.R. No. 9 of 2004 dated 9.1.2004, whereas Ex.PW-2/F dated 3rd July, 2003 proves on record that the amount of Rs.1,88,916/- had already been deposited by PW-6 Krishan Kumar before the registration of F.I.R. and therefore the basis of criminal breach of trust cannot in any manner be attributed to the accused herein.

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10(vii). BILLS-PAYMENTS RELEASED UNDER AUTHORITY OF DDO.

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Moreover, a perusal of the records i.e. the bills under which the disbursement of amount was made were drawn under the signature of D.D.O, but the prosecution has not made any attempt to produce the DDO(s) to prove its case. Thus, non-crossexamination of material witnesses i.e. DDO’s is sufficient to disbelieve the prosecution story which has no foundation.

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10(viii).

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EXPLANATION OF ACCUSED UNDER SECTION 313 CR.P.C.

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Even the explanation given by the accused, under Section 313 Cr.P.C. disproves the case of prosecution, whereby the accused has specifically stated that PW-6 (HC Krishan Kumar), who was cashier, had misappropriated the alleged amount of Rs.1,88,916/-.

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11. ANALYSIS QUA CHARGE UNDER SECTIONS 467, 468 AND 471 IPC

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11(i). The appellant-State in order to find a bird in the sky has relied upon FSL report i.e. Ex.PW-24/J, to show that in Expenditure Statement, Ex.PW-1/B, Questioned Item i.e. Q-5 therein regarding Entry No.5 of Rs.1,88,196/- was inserted by the accused. This reliance is without any merit when the FSL i.e. Scientific Officer, Document and Photo Division, SFSL, Junga, H.P. has opined in Ex.PW24/J that it has not been possible to express any opinion regarding the authorship of Questioned Item Q-5, due to nonavailability of similar material for comparison. Once the authorship of Questioned Item Q-5 remains unanswered, even by the expert, then, the prosecution story and the accusation that an amount of Rs.1,88,916/- was misappropriated by the accused is without any substance. In addition to this, the provisions of Section 47 of the Indian Evidence Act, 1872 mandates that that an opinion as to the person

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by whom any document was written or signed can only be formed by proving the same on the basis of opinion of any person acquainted with the handwriting of the person by whom it is supposed to be written or signed. In the instant case, once the prosecution has failed to examine any person, who could prove, the averments in Questioned Item Q-5, then, the prosecution story and the accusation has rightly not been held to be not proved, against the accused.

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11(ii). Thus the offence(s) under Sections 467, 468 and 471 of the Indian Penal Code are not made out on facts and in law.”

¶94

In present case, criminal case was registered and trial was conducted on the basis of the same charges and evidence on record for short fall of `1,07,449/- in the chest and for unauthorized absence. So far as absence of 43 ½ days is concerned, in this regard plea of the petitioner is that the same was treated as dies non vide order dated 07.12.2007 issued by DGP, has not been disputed in reply and, therefore, the said period deserves to be regularized.

¶95

Once Competent Authority instead of punishing an employee has treated the period of absence as dies non, it should be construed that the said absence was not willful or intentional. In this regard, it is also relevant that in information supplied under RTI by the respondent, it has been recorded that petitioner had applied for Medical Leave on various occasions. Unless absence is willful or intentional, causing doubt to the integrity/devotion of duties, an employee cannot be punished that too with penalty of dismissal from service. In this regard, following observations of judgment of Supreme Court in

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Krushnakant B. Parmar vs. Union of India and another, (2012) 3

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SCC 178 , are relevant:-

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“15. Rule 3(1)(ii) and Rule 3(1)(iii) of Central Civil Services (Conduct) Rules, 1964, relates to all time maintaining integrity, devotion to duty and to do nothing which is unbecoming of a Government servant and reads as follows:

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"Rule 3 - General.

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(1) Every Government servant shall at all times--

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(i) maintain absolute integrity;

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(ii) maintain devotion to duty; and

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(iii) do nothing which is unbecoming of a Government servant."

¶105

In the case of appellant referring to unauthorised absence the disciplinary authority alleged that he failed to maintain devotion of duty and his behaviour was unbecoming of a Government servant. The question whether unauthorised absence from duty' amounts to failure of devotion to duty or behaviour unbecoming of a Government servant cannot be decided without deciding the question whether absence is wilful or because of compelling circumstances.

¶106

If the absence is the result of compelling circumstances under which it was not possible to report or perform duty, such absence can not be held to be wilful. Absence from duty without any application or prior permission may amount to unauthorised absence, but it does not always mean wilful. There may be different eventualities due to which an employee may abstain from duty, including compelling circumstances beyond his control like illness, accident, hospitalisation, etc., but in such case the employee cannot be held guilty of failure of devotion to duty or behaviour unbecoming of a Government servant.

¶107

In a Departmental proceeding, if allegation of unauthorised absence from duty is made, the disciplinary authority is required to prove that the absence is wilful, in absence of such finding, the absence will not amount to misconduct.

¶108

In the present case the Inquiry Officer on appreciation of evidence though held that the

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appellant was unauthorisedly absent from duty but failed to hold the absence is wilful; the disciplinary authority as also the Appellate Authority, failed to appreciate the same and wrongly held the appellant guilty.

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20.The question relating to jurisdiction of the Court in judicial review in a Departmental proceeding fell for consideration before this Court in M.V. Bijlani v. union of India, (2006) 5 SCC 88 wherein this Court held:

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"It is true that the jurisdiction of the court in judicial review is limited. Disciplinary proceedings, however, being quasi- criminal in nature, there should be some evidence to prove the charge. Although the charges in a departmental proceeding are not required to be proved like a criminal trial i.e. beyond all reasonable doubt, we cannot lose sight of the fact that the enquiry officer performs a quasijudicial function, who upon analysing the documents must arrive at a conclusion that there had been a preponderance of probability to prove the charges on the basis of materials on record. While doing so, he cannot take into consideration any irrelevant fact. He cannot refuse to consider the relevant facts. He cannot shift the burden of proof. He cannot reject the relevant testimony of the witnesses only on the basis of surmises and conjectures. He cannot enquire into the allegations with which the delinquent officer had not been charged with."

¶113

In the present case, the disciplinary authority failed to prove that the absence from duty was wilful, no such finding has been given by the Inquiry Officer or the Appellate Authority. Though the appellant had taken a specific defence that he was prevented from attending duty by Shri P. Venkateswarlu, DCIO, Palanpur who prevented him to sign the attendance register and also brought on record 11 defence exhibits in support of his defence that he was prevented to sign the attendance register, this includes his letter dated 3rd October, 1995 addressed to Shri K.P. Jain, JD, SIB, Ahmedabad, receipts from STD/PCO office of Telephone calls dated 29th September, 1995, etc. but such defence and evidence were ignored and on the basis of irrelevant fact and surmises the Inquiry Officer held the appellant guilty.

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In the result, the appeal is allowed. The impugned orders of dismissal passed by disciplinary authority, affirmed by the Appellate Authority; Central

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Administrative Tribunal and High Court are set aside. The appellant stands reinstated.

¶117

In Kailash Nath Gupta vs. Enquiry Officer, (R.K. Rai), Allahabad Bank and others, (2003) 9 SCC 480, Supreme Court has observed as under:-

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We have carefully examined the submissions made by the learned counsel for the parties. The High Court did not go into the question as to whether the order of removal of the appellant from service was grossly disproportionate in view of the decision of this Court in State of Bank of India v. Samarendra Kishore Endow, (1997) 7 SCC 463.

¶119

This Court in Union of India & Anr. vs. G.Ganayutham [(1997 7 SCC 463] considered the question whether judicial review powers in administrative law permit the High Courts or the administrative tribunals to apply the principle of "proportionality". In the said judgment, reference is made to leading cases in England and also to the rulings of this Court touching the question of "proportionality". In para 15, reference is made to the case of Ranjit Thakur vs. Union of India & Ors. [(1987) 4 SCC 611). In that case, after finding the appellant guilty in court martial, he was dismissed from service and a sentence of imprisonment was also imposed as permitted by Army Act. While quashing the said punishment on the ground that it was "strikingly disproportionate", this Court, in para 25 observed thus:-

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"25.... The question of the choice and quantum of punishment is within the jurisdiction and discretion of the court-martial. But the sentence has to suit the offence and the offender. It should not be vindictive or unduly harsh. It should not be so disproportionate to the offence as to shock the conscience and amount in itself to conclusive evidence of bias. The doctrine of proportionality, as part of the concert of judicial review, would ensure that even on an aspect which is, otherwise, within the exclusive province of the court-martial, if the decision of the court even as to sentence is an outrageous defiance of logic, then the sentence would not be immune from correction. Irrationality and perversity are recognized grounds of judicial review."

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In the said case, the "doctrine of proportionality" was treated as part of judicial review in administrative law.

¶123

A Bench of three learned Judges of this Court in B.C.Chaturvedi vs. Union of India & Ors. (1995) 6 SCC 749, while dealing with the power to interfere with the punishment imposed by the disciplinary authority, in para 17, stated thus (SCC pp.761-62):-

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"17. The next question is whether the Tribunal was justified in interfering with the punishment imposed by the disciplinary authority. A Constitution Bench of this Court in State of Orissa vs. Bidyabhushan Mohapatra (AIR 1963 SC 779) held that having regard to the gravity of the established misconduct, the punishing authority had the power and jurisdiction to impose punishment. The penalty was not open to review by the High Court under Article 226. If the High Court reached a finding that there was some evidence to reach the conclusion, it became unassessable. The order of the Governor who had jurisdiction and unrestricted power to determine the appropriate punishment was final. The High court had no jurisdiction to direct the Governor to review the penalty. It was further held that if the order was supported on any finding as to substantial misconduct for which punishment "can lawfully be imposed", it was not for the Court to consider whether that ground alone would have weighed with the authority in dismissing the public servant. The Court had no jurisdiction, if the findings prima facie made out a case of misconduct, to direct the Governor to reconsider the order of penalty. This view was reiterated in Union of India vs. Sardar Bahadur (1972) 4 SCC 618. It is true that in Bhagat Ram vs. State of H.P. (1983) 2 SCC 442 a Bench of two Judges of this Court, while holding that the High Court did not function as a court of appeal, concluded that when the finding was utterly perverse, the High court could always interfere with the same. In that case, the finding was that the appellant was to supervise felling of the trees which were not hammer marked. The Government had recovered from the contractor the loss caused to if by illicit felling of trees. Under those circumstances, this Court held that the finding of guilt was perverse and unsupported by evidence. The ratio, therefore, is not an authority to conclude that in every case the Court/Tribunal is empowered to interfere with the punishment imposed by the disciplinary authority. In Rangaswami vs. State of T.N. (1989) supp. 1 SCC 686, a Bench of three

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Judges of this Court, while considering the power to interfere with the order of punishment, held that this Court, while exercising the jurisdiction under Article 136 of the Constitution, is empowered to alter or interfere with the penalty; and the Tribunal had no power to substitute its own discretion for that of the authority. It would be seen that this Court did not appear to have intended to lay down that in no case, the High Court/Tribunal has the power to alter the penalty imposed by the disciplinary or the appellate authority. The controversy was again canvassed in State Bank of India case where the Court elaborately reviewed the case law on the scope of judicial review and powers of the Tribunal in disciplinary matters and nature of punishment. On the facts in that case, since the appellate authority had not adverted to the relevant facts, it was remitted to the appellate authority to impose appropriate punishment."

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It is also further stated in the same judgment that: (SCC p.762, para 18)

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"The High Court/Tribunal while exercising the power of judicial review, cannot normally substitute its own conclusion on penalty and impose some other penalty. If the punishment imposed by the disciplinary authority or the appellate authority shocks the conscience of the High Court/Tribunal, it would appropriately mould the relief, either directing the disciplinary authority/appellate authority to reconsider the penalty imposed or to shorten the litigation, it may itself in exceptional and rare cases impose appropriate punishment with cogent reasons in support thereof."

¶129

35. Learned Additional Advocate General has referred

¶130

judgment in Mahinder Dutt Sharma vs. Union of India and others, (2014) 11 SCC 684, but the said judgment is not applicable in present case as issue involved therein was as to whether after dismissal from the service, in furtherance to the Departmental Inquiry, the employee was entitled for compassionate allowance under Rule 41 of the CCS Leave Rules, 1972 or not.

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Learned Additional Advocate General has also placed reliance on judgment passed by the Punjab High Court in Hardeep Singh vs. State of Punjab and others, dated 16.02.2024 in CWP No.28436 of 2018, wherein question related to persons who were convicted and awarded sentence was involved and the Court had observed that on the ground of parity, High Court cannot ask the respondents to violate the mandate of law.

¶133

Following observation made in Ram Lal vs. State of Rajasthan and others, (2024) 1 SCC 175, would be relevant:-

¶134

“Questions for consideration:

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The following two questions arise for consideration:

¶136

8.1.(a) Whether the dismissal of the appellant from service pursuant to the departmental enquiry was justified?

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8.2.(b) On the facts of the case, what is the effect of the acquittal, ordered by the Appellate Judge in the criminal trial, on the order of dismissal passed in the departmental enquiry?

¶138

Legal Position:

¶139

We have examined both the questions independently. We are conscious of the fact that a writ court's power to review the order of the Disciplinary Authority is very limited. The scope of enquiry is only to examine whether the decision-making process is legitimate. (See SBI vs. A.G.D. Reddy, (2023) 14 SCC 391. As part of that exercise, the courts exercising power of judicial review are entitled to consider whether the findings of the Disciplinary Authority have ignored material evidence and if it so finds, courts are not powerless to interfere. (See United Bank of India vs. Biswanath Bhattacharjee, (2022) 13 SCC 329).

¶140

We are also conscious of the fact that mere acquittal by a criminal court will not confer on the employee a right to claim any benefit, including reinstatement. (See Deputy Inspector General of Police and Another v. S. Samuthiram, (2013) 1 SCC 598).

¶141

However, if the charges in the departmental enquiry and the criminal court are identical or similar, and if the

¶142

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evidence, witnesses and circumstances are one and the same, then the matter acquires a different dimension. If the court in judicial review concludes that the acquittal in the criminal proceeding was after full consideration of the prosecution evidence and that the prosecution miserably failed to prove the charge, the Court in judicial review can grant redress in certain circumstances. The court will be entitled to exercise its discretion and grant relief, if it concludes that allowing the findings in the disciplinary proceedings to stand will be unjust, unfair and oppressive. Each case will turn on its own facts. (See G.M. Tank vs. State of Gujarat & Others, (2006) 5 SCC 446, State Bank of Hyderabad vs. P. Kata Rao, [(2008) 15 SCC 657 and S. Samuthiram (supra)].

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Effect of Acquittal in the Criminal Proceeding - Question No. 2:

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With this above background, if we examine the criminal proceedings the following factual position emerges. The very same witnesses, who were examined in the departmental enquiry were examined in the criminal trial. Jagdish Chandra, Bhawani Singh, Shravan Lal, Raj Singh and Karan Sharma were examined as PW2, PW3, PW6, PW9 and PW13 respectively at the criminal trial. Apart from them, eight other witnesses were also examined. The gravamen of the charge in the criminal case was that the appellant had submitted an application for recruitment along with his marksheet and he, by making alteration in his date of birth to reflect the same as 24.04.1972 in place of 21.04.1974, and obtained recruitment to the post of Constable.

¶146

Though the Trial Court convicted the appellant under Section 420 of IPC, the Appellate Court recorded the following crucial findings while acquitting the appellant:

¶147

"Mainly the present case was based on the documents to this effect whether the date of birth of accused is 21.04.1972 or 21.04.1974. Exh. P-3 is original Marksheet, in which, the date of birth of accused has been shown as 21.04.1972 and same has also been proved by the witnesses examined on behalf of the prosecution. Whatever the documents have been produced before the Court regarding the date of birth of 21.04.1974 are either the letters of Principal or are Duplicate T.C. or Marksheets. Neither the prosecution has produced any such original documents in the Subordinate Court to this effect that when the admission form of accused was filled, what date of birth was mentioned by the accused in it,

¶148

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what was the date of birth in Roll Register of School, what date of birth was mentioned by accused in the Examination Form of Secondary, and nor after bringing the original records from the concerned witnesses, same were got proved in the evidence. In these circumstances, this fact becomes doubtful that date of birth of accused was 21.04.1974, and accused is entitled to receive it's benefit. In the considered opinion of this Court, the conviction made by the Ld. Subordinate Court merely on the basis of oral evidences and letters or duplicate documents, is not just and proper. It is justifiable to acquit the accused.

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Resultantly, on the basis of aforesaid consideration, the present appeal filed by the Appellant/Accused is liable to be allowed."

¶151

(Emphasis supplied)

¶152

What is important to notice is that the Appellate Judge has clearly recorded that in the document Exh. P-3 - original marksheet of the 8th standard, the date of birth was clearly shown as 21.04.1972 and the other documents produced by the prosecution were either letters or a duplicate marksheet. No doubt, the Appellate Judge says that it becomes doubtful whether the date of birth was 21.04.1974 and that the accused was entitled to receive its benefit. However, what we are supposed to see is the substance of the judgment. A reading of the entire judgment clearly indicates that the appellant was acquitted after full consideration of the prosecution evidence and after noticing that the prosecution has miserably failed to prove the charge [(See S. Samuthiram (Supra).]

¶153

Expressions like "benefit of doubt" and "honorably acquitted", used in judgments are not to be understood as magic incantations. A court of law will not be carried away by the mere use of such terminology. In the present case, the Appellate Judge has recorded that Exh. P-3, the original marksheet carries the date of birth as 21.04.1972 and the same has also been proved by the witnesses examined on behalf of the prosecution. The conclusion that the acquittal in the criminal proceeding was after full consideration of the prosecution evidence and that the prosecution miserably failed to prove the charge can only be arrived at after a reading of the judgment in its entirety. The court in judicial review is obliged to examine the substance of the judgment and not go by the form of expression used.

¶154

We are satisfied that the findings of the appellate judge in the criminal case clearly indicate that the charge against

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the appellant was not just, "not proved" - in fact the charge even stood "disproved" by the very prosecution evidence. As held by this Court, a fact is said to be "disproved" when, after considering the matters before it, the court either believes that it does not exist or considers its non-existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it does not exist. A fact is said to be "not proved" when it is neither "proved" nor "disproved" [See Vijayee Singh and Others v. State of U.P. (1990) 3 SCC 190].

¶157

We are additionally satisfied that in the teeth of the finding of the appellate Judge, the disciplinary proceedings and the orders passed thereon cannot be allowed to stand. The charges were not just similar but identical and the evidence, witnesses and circumstances were all the same. This is a case where in exercise of our discretion, we quash the orders of the disciplinary authority and the appellate authority as allowing them to stand will be unjust, unfair and oppressive. This case is very similar to the situation that arose in G.M. Tank (supra).”

¶158

In present case, in conclusion of Cr.Appeal No.429 of 2018, Division Bench of this High Court has observed that prosecution failed to prove charges against the accused regarding alleged misappropriation, criminal breach of trust, forgery of records and ingredients of Section 471 of IPC. It has also come on record of criminal case that PW.6 Krishan Kumar was Cashier and he was the person who had misappropriated alleged amount of 1,88,916/-. Further that perusal of record, i.e. bills by which disbursement of amount was made, was drawn under the Signatures of DDO, but DDO was never produced to prove the case. It has also come on record that 1,88,916/- had already been deposited by PW.6 Krishan Kumar before registration of FIR. It is pertinent to record that except the

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petitioner, no other person including DDO was subjected to inquiry or criminal proceedings.

¶161

It has also been submitted on behalf of the petitioner that in any case, if this Court does not intend to interfere in the findings returned by the Inquiry Officer accepted by the Disciplinary Authority with respect to the first charge then also, keeping in view unblemished 21 years of service of the petitioner and family members depending upon him as well as the fact that in criminal case it has been clearly surfaced that there was nothing to substantiate charge imposed upon the petitioner, petitioner, instead of ousting from service by of dismissal, is directed to be treated to have been retired compulsorily. 40. In aforesaid facts and circumstances, we are of the considered opinion that even if, it is construed that on acquittal in criminal case petitioner was not entitled for reinstatement, as he has been dismissed from the service, in furtherance to inquiry conducted by the Department then also, penalty imposed upon the petitioner is highly disproportionate particularly keeping in view his length of service of more than 21 years.

¶162

Taking into consideration entire facts and circumstances and the fact that petitioner is out of job since 07.12.2007 and he is agitating for his cause since December 2007 and present petition is pending since January 2014, and now petitioner is stated to have attained age of superannuation on 31.03.2025, therefore, keeping in view peculiar circumstances and trauma of conviction as well as dismissal faced by the

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petitioner rather we are not remitting the proceedings to Disciplinary Authorities for any further action, but we close the matter with direction that the punishment imposed upon the petitioner qua dismissal from the service is converted into compulsory retirement with all consequential benefits.

¶165

Petition is allowed and disposed of in aforesaid term. Pending application(s), if any, also stand disposed of.

¶166

(Vivek Singh Thakur), Judge.

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(Ranjan Sharma), Judge.

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July 15, 2025 (Purohit)

Daljeet Singh v. State of Hp

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Daljeet Singh v. State of Hp

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