Govind Prasad Tripathi vs The State Of M.P. on 22 May, 2017

HIGH COURT OF MADHYA PRADESH : JABALPUR

W.P. No.23175/2003

Govind Prasad Tripathi
-Versus-
The State of M.P. others

CORAM :

Hon’ble Shri Justice Vijay Kumar Shukla

Shri D.K. Dixit, Advocate along with Shri Anshul Dixit,
Advocate for the petitioner.

Smt. Janhavi Pandit, Govt. Advocate for the State.

ORDER

(23.05.2017)

This petition was originally filed under Section 19 of the
Administrative Tribunals Act, 1985 before the erstwhile M.P. State
Administrative Tribunal, Bhopal and after abolition of the Tribunal
the matter was transferred to this Court and got registered as a writ
petition.

2. In the instant petition, challenge has been made to the
dismissal of service of the petitioner after departmental enquiry and
rejection of his first appeal and second appeal by the competent
authorities.

3. The facts lying in a narrow compass, succinctly stated
are that the petitioner was appointed as a Constable in the year
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1981. As submitted, he was posted in the Police Station, Mishrod
and an offence punishable under Section 376 of the IPC was
registered against him. He was served with a charge-sheet, dated
24-02-1988. The charges framed against the delinquent-petitioner
were that while he was posted as a Constable in the Police Station,
Mishrod, he had pursued a minor girl of 14 years and developed
physical and illicit relationship with her; that because of illegitimate
relationship with the victim – Ku. Uma, she became pregnant and
delivered a child; and the act of the petitioner has tarnished the
image of the Police Department.

4. Reply to the said charge-sheet was filed by the petitioner
refuting the charges levelled against him. It is submitted by the
counsel for the petitioner that thereafter the respondents did not
proceed further in pursuant to the said charge-sheet. A criminal case
under Section 376 of the IPC was instituted against the petitioner,
but he was acquitted of the charge by the court of learned III
Additional Sessions Judge, Bhopal vide judgement dated 7-03-1992.

5. Thereafter, the petitioner preferred a representation
before the Superintendent of Police, Bhopal seeking his
reinstatement in service, but he did not receive any response
thereon. After his acquittal in the criminal case the Department
issued a charge-sheet, dated 28-9-1992 alleging that the petitioner
developed illicit physical relations with victim – Ku. Uma on the
pretext of marriage with her, as a result, she became pregnant and
the conduct of the petitioner has tarnished the image of the police
department. He filed reply to the charge-sheet denying the
allegations levelled against him.

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6. The competent authority being dissatisfied with the
reply filed by the petitioner initiated a departmental enquiry against
him. Shri Avinash Sharma, City Superintendent of Police was
appointed as an Enquiry Officer. The petitioner contended that in
the case in hand, no Presenting Officer was appointed by the
respondents and on this count the departmental enquiry and the
orders of punishment are liable to be quashed.

7. Per contra, counsel for the State submitted that the
petitioner was working as a Constable in the Police Department and
was involved in a criminal case for commission of an offence
punishable under Section 376 of the IPC involving moral turpitude,
itself is sufficient for termination of his services irrespective of the
fact that he has been involved in a criminal case. It is further
contended by her that the prosecution could not prove the age of the
prosecutrix below 16 years and, therefore, the petitioner has been
granted benefit of doubt in the criminal case instituted against him.
It is contended that acquittal in the criminal case would not mean
that the Department cannot proceed for the departmental enquiry on
the same set of allegations, as the degree of proof in a criminal case
and the departmental enquiry are distinct. It is further contended by
the counsel for the State that in a matter of disciplinary force like
police, an impeccable integrity and character are expected from an
employee.

8. On behalf of the prosecution, the prosecuitrix – Smt.
Uma Devi, her father – Babulal and mother – Smt. Shantibai were
examined. Copies of the statements of the prosecution witnesses
have been filed and marked as Annexure-P/9, Annexure-P/10 and
Annexure-P/11 respectively. The Enquiry Officer submitted his
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report on 25-11-1992 before the Disciplinary Authority, i.e.
Superintendent of Police. He issued a notice to show cause on 01-
11-1992, but no reply thereof was submitted by the petitioner.

9. The Disciplinary Authority passed an order of dismissal
from services vide Annexure-A/1, dated 11-01-1993. The said order
was challenged before the Deputy Inspector General of Police,
respondent No.3, who dismissed the appeal. Thereafter, the
petitioner preferred another appeal before the Director General of
Police, respondent No.2 which also faced dismissal, vide order dated
20-10-1993, Annexure-A/3.

10. Assailing the aforesaid orders and the findings of the
Enquiry Officer the instant writ petition is filed. Learned counsel
for the petitioner has raised the following issues:

(i) In the present case, the non-appointment of
Presenting Officer has rendered the entire
enquiry and orders of punishment as vitiated in
law and illegal.

(ii) The authorities have failed to consider that the
petitioner was falsely implicated as evincible
from the statements of the complainant and her
parents which suffer from material
contradiction which per se is sufficient to draw
an inference about the false implication.

(iii) The order of acquittal passed by the competent
court of jurisdiction has not been considered by
the competent authority and the appellate
authority.

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(iv) The present case is a case of no evidence and,
therefore, this Court can interfere under Article
226 of the Constitution.

11. It is strenuously urged on behalf of the petitioner that
since Presenting Officer was not appointed and the Enquiry Officer
had assumed the role of prosecution and the presenting officer,
which has vitiated the entire enquiry conducted and the consequent
orders of punishment passed are rendered illegal.

12. Since Presenting Officer was not appointed and the
Enquiry Officer had assumed the role of prosecution and the
Presenting Officer, therefore, the entire enquiry and the consequent
orders of dismissal from service and dismissal of appeals are vitiated
and liable to be quashed. In regard to the first submission of the
counsel for the petitioner that since the Presenting Officer has not
been appointed, therefore, the entire enquiry and the orders thereon
are vitiated in law, this issue has been considered by a Division
Bench of this Court in the case of Union of India through its
Secretary, Ministry of Railway, New Delhi and others vs. Mohd.
Naseem Siddiqui, ILR [2004] MP 821 wherein the legal
proposition in this regard is summarised as under:

” (i) The Inquiry Officer, who is in the position of a
Judge shall not act as a Presenting Officer, who
is in the position of a prosecutor.

(ii) It is not necessary for the Disciplinary Authority
to appoint a Presenting Officer in each and every
enquiry. Non-appointment of a Presenting
Officer, by itself will not vitiate the inquiry.

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(iii) The Inquiry Officer, with a view to arrive at the
truth or to obtain clarifications can put questions
to the prosecution witnesses as also the defence
witnesses. In the absence of a Presenting Officer,
if the Inquiry Officer puts any questions to the
prosecution witnesses to elicit the facts, he should
thereafter permit the delinquent employee to
cross-examine such witnesses on those
clarifications.

(iv) If the Inquiry Officer conducts a regular
examination-in-chief by leading the prosecution
witnesses through the prosecution case,, or puts
leading questions to the departmental witnesses
pregnant with answers, or cross-examine the
defence witnesses or puts suggestive questions to
establish the prosecution case employee, the
Inquiry Officer acts as prosecutor thereby
vitiating the inquiry.

(v) As absence of a Presenting Officer by itself will
not vitiate the inquiry and it is recognized that the
Inquiry Officer can put questions to any or all
witnesses to elicit the truth, the question whether
an Inquiry Officer acted as a Presenting Officer,
will have to be decided with reference to the
manner in which the evidence is led in any
recorded in the inquiry.”

The judgment cited hereinabove, has been followed by a
Co-ordinate Bench of this Court in the case of Ramesh Chand
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Rathore vs. State of Madhya Pradesh and others, 2010(3) MPHT

32.

13. Thus, it is not necessary for the Disciplinary Authority
to appoint a Presenting Officer in each and every inquiry. Non-
appointment of a Presenting Officer by itself will not vitiate the
inquiry. It is also held that the Enquiry Officer with a view to arrive
at the truth or to obtain clarification can put questions to the
prosecution witnesses as also defence witnesses. Thus, whether an
Enquiry Officer has merely acted only as an Enquiry Officer or has
also acted as a Presenting Officer, depends on the facts of the each
case. Thus, the submission putforth by the counsel for the petitioner
that because of non-appointment of Presenting Officer entire
enquiry and the orders are vitiated in law, has no merit.

14. The second plank of submission of the learned counsel
for the petitioner, that he has been falsely implicated, which is
ostensible from the statements of the complainant and her parents.
Upon perusal of the statement of the victim-complainant wherein
she has made a specific allegation that she was subjected to forcible
sexual intercourse by the petitioner and thereafter she was
threatened not to disclose the the same to anyone, is firm in her
examination-in-chief. The petitioner was working as a constable in
the Police Station and, therefore, non-disclosure of the incident to
her parents would not demolish the case of the department which is
natural in facts of the present case. The said statement is also
supported by the statement of her father – Babulal. No
misrepresentation or suppression or exaggeration have been found in
the statements of the victim-complainant and her parents. They are
truthful to their testimonies that the prosecutrix had not disclosed the
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name of the present petitioner with whom she was having physical
relations till delivery of a child. Merely because there is some
discrepancy in respect of burial of the newly born child after his
death, would not make the testimony of the witnesses in a
departmental enquiry untruthful or dis-creditworthy and would not
detriment to entire case of the prosecution. There is nothing in the
cross-examination of the witnesses about any previous enmity.
Besides, no defence witness has been adduced by the petitioner to
prove the fact that there was any previous enmity or animosity
between the two families. Thus, the contention of the petitioner that
he has been falsely implicated in the present case, has no merit.

15. The contradictions pointed out by the learned counsel
for the petitioner do not make the deposition of the complainant and
her parents untruthful, as the complainant-prosecutrix is firm on her
statement that the petitioner had forced her to have physical
relations under administration of threats and undue influence,
therefore, she did not disclose the incident to anyone, till delivery of
the child. Further, from the record of enquiry it cannot be held that
in the facts of the present case the Enquiry Officer has acted
partially assuming role of a prosecutor.

16. The next contention of the petitioner that the authorities
have failed to take into consideration the order of acquittal passed
by the Court of Law as the case of the prosecution has not been
proved. It is also contended that the respondents did not proceed
further in pursuant to the charge-sheet which was issued prior to the
conviction but later, after acquittal in a criminal case, they issued the
charge-sheet and proceeded for departmental enquiry resulting into
the impugned orders. Merely because once the charge-sheet was
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issued and after the reply the Department did not proceed against the
delinquent-employee because of institution of a criminal case,
would not preclude the Department from issuing charge-sheet after
the order of acquittal. In the present case, the petitioner has been
acquitted by the Court of Law, granting him benefit of doubt as
the prosecution could not prove the age of the prosecutix below 16
years. But the charge levelled against the petitioner is also that
because of his involvement in a criminal case like Section 376 of the
IPC, the image of the police force/Department has been impaired.
In the cases of Capt. M. Paul Anthony vs. Bharat Gold Mines Ltd.,
(1993) 3 SCC 679 and Jasbir Singh vs. Punjab and Sind Bank,
(2007) 1 SCC 566 which were followed in the case of Baljinder Pal
Kaur vs. State of Punjab and others, (2016) 1 SCC 671 it has been
held that the departmental proceedings and the proceedings in a
criminal case are distinct and separate and there is no bar and that
can also be conducted simultaneously.

17. In the case of Union of India vs. Bihari Lal Sidhana,
(1997) 4 SCC 385 the Apex Court held that the acquittal does not
automatically give right to an employee to be reinstated into service.
In the case in hand, the acquittal of the petitioner is not an
“honourable acquittal” on merits but the petitioner has been granted
benefit of doubt and, therefore, it cannot be held that the Department
has erred in issuing the charge-sheet after the acquittal and
proceeded for departmental enquiry.

18. In the cases of Commissioner of Police, New Delhi and
another vs. Mehar Singh, (2013) 7 SCC 685 and Inspector General
of Police vs. S. Samuthiram, (2013) 1 SCC 598 it has been held that
the standard of proof in a criminal case is a proof beyond reasonable
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doubt, but the proof in a departmental enquiry is preponderance of
probabilities. It is settled law that strict burden of proof required to
establish the guilt in a criminal case is not required in a disciplinary
proceeding and preponderance of probabilities is sufficient.

19. The next contention of the learned counsel appearing for
the petitioner that the present case is of no evidence and, therefore,
this Court can interfere in exercise of powers under Article 226 of
the Constitution. He has placed reliance on the authority of the
Apex Court rendered in Indian Oil Corporation Ltd. And another
vs. Ashok Kumar Arora, (1997) 3 SCC 72. The scope of
interference in the case of a departmental enquiry the law is well
settled that although the Court cannot sit in appeal over the findings
recorded by the Disciplinary Authority or the Enquiry Officer in a
departmental enquiry but it does not mean that in no circumstances
can the Court interfere. It was observed by the Apex Court in the
case of Kuldeep Singh vs. Commissioner of Police, (1999) 2 SCC 10
relying upon the earlier decisions rendered in the cases Nand
Kishore Prasad vs. State of Bihar, (1978) 3 SCC 366; State of
Andhra Pradesh vs. Rama Rao, AIR 1963 SC 1723; Central Bank
of India Ltd. vs. Prakash Chand Jain, AIR 1969 SC 983; Bharat
Iron Works vs. Bhagubhai Balubhai Patel, (1976) 1 SCC 518; and
Rajinder Kumar Kindra vs. Delhi Administration, (1984) 4 SCC
635, that power of judicial review available to a High Court under
the Constitution takes in its stride the domestic inquiry as well and
that Courts can interfere with the conclusions reached therein, if
there was no evidence in support of the findings or the findings
recorded were such as could not have been reached by ordinary
prudent man or the findings were perverse. But from evaluation of
the facts and evidence of the case in proper perspective, as discussed
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above, it is luculent from the statements of the victim-complainant,
Smt. Uma Devi and her father – Babulal, and established that the
petitioner was involved in an offence like rape punishable under
Section 376 of the IPC, which has certainly besmirched the image of
the Department. From a bare perusal of the evidence of the victim-
complainant and her parents, it is graphically clear that there is
sufficient evidence against the delinquent-petitioner, I am afraid, to
hold that the instant case is a case of no evidence.

20. In view of the obtaining factual matrix and taking into
consideration the nature of charge levelled against the petitioner,
who is a member of disciplinary force i.e., police force, which
shoulders the great responsibility of maintaining law and order and
public order in the society; and that people repose great faith and
confidence in it, this Court does not find any illegality or perversity
of approach in the impugned orders of the disciplinary authority and
affirmation thereof by the appellate authorities. The order of
punishment of dismissal from service can also not be held to be
shockingly disproportionate in the facts of the present case and no
interference is warranted on the quantum of the punishment. It is
established law, that the courts can interfere in the quantum of
punishment, only where the imposition of punishment is shockingly
disproportionate, as propounded by the Apex Court in the judgments
rendered in the cases of Commandant, 22th Battalion Central
Reserve Police Force, Srinagar vs. Surinder Kumar, (2011) 10 SCC
244; Chandra Kumar Choupra vs. Union of India and others, (2012)
6 SCC 369; and Delhi Police through Commissioner of Police and
others vs. Sat Narayan Kaushik, (2016) 6 SCC 303.

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21. Thus, in view of the aforesaid enunciation of law
discussed in preceding paragraphs, I do not find any illegality and
perversity of approach in the impugned order warranting
interference of this Court in writ jurisdiction and the same being
impregnable deserves to and are given stamp of approval of this
Court.

22. Ex-consequenti, the writ petition sans merit and is
hereby dismissed.

(Vijay Kumar Shukla)
Judge

ac.

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