STATE OF WEST BENGAL & ORS.versusSANKAR GHOSH

                        [2013] 12 S.C.R. 516


A               STATE OF WEST BENGAL & ORS.
                                  v.
                          SANKAR GHOSH
                  (Civil Appeal No. 10729 of 2013)
                       NOVEMBER 28, 2013
B
         [K.S. RADHAKRISHNAN AND A.K. SIKRI, JJ.]

        Service Law:

c       Effect of acquittal in criminal case on dismissal order
  after departmental inquiry - Held: There is no rule of automatic
  reinstatement on acquittal by a criminal court even though the
  charges levelled against the delinquent before the Enquiry
  Officer as well as the criminal court are the same - Further,
  Regulation 4 of 1968 Regulations indicates that even if there
0
  is identity of charges /eve/led against the accused before the
  criminal court as well as before the Enquiry Officer, an order
  of discharge or acquittal of a police officer by a Criminal Court
  shall not be a bar to award of punishment in departmental
E proceedings - In the instant case, charges leveled against the
  respondent in departmental proceedings were proved beyond
  any shadow of doubt - Besides, there is evidence that stolen
  money was recovered from the possession of the respondent
  - A motorcycle and a private car used in commission of the
  offence were also recovered from his home - Trial court
F acquitted the respondent merely because the witness could
  not identify him during Tl parade - Therefore, it cannot be said
  that respondent was honourably acquitted - Order of
  disciplinary authority dismissing the respondent from service,
  upheld - Police Regulations of Calcutta, 1968 - Regulation
G 4.

      The respondent, a Sapoy in Kolkata Armed Police, on
  deputation in Traffic Department of Kolkata Police, was
  prosecuted for committing offices punishable u/ss 392,
H                           516
   STATE OF WEST BENGAL & ORS. v. SANKAR               517
                  GHOSH
395 and 412 !PC and ss. 25 and 27 of the Arms Act for         A
his complicity in the commission of a dacoity using a
motor cycle. A departmental inquiry was also initiated
against him with regard to the said offences. The Enquiry
Officer found him guilty of the charges and, ultimately, he
was dismissed from service. However, in the criminal          B
case, he was acquitted by the Court of Session. On such
acquittal the appellant filed an O.A. before the West
Bengal Administrative Tribunal which directed the
disciplinary authority to reinstate him in view of the
acquittal order passed by the Court of Session. The High      c
Court upheld the order of the Tribunal.

    In the instant appeal, the question for consideration
before the Court was: whether the respondent, who was
dismissed from service following disciplinary
proceedings, was entitled to be reinstated on acquittal by    D
the criminal court on the ground of identity of charges in
the departmental as well as criminal proceedings.

    Allowing the appeal, the Court
                                                              E
     HELD:1.1. There is no rule of automatic reinstatement
on acquittal by a criminal court even though the charges
levelled against the delinquent before the Enquiry Officer
as well as the criminal court are the same. On the other
hand, Regulation 4 of Chapter 19 of the Police F
Regulations of Calcutta, 1968, which is applicable to the
case in hand, specifically provides that acquittal or
discharge in a criminal proceeding shall not be a bar to
award punishment in a departmental proceeding in
respect of the same cause or matter. It indicates that even
if there is identity of charges levelled against the G
respondent before the criminal court as well as before the
 Enquiry Officer, an order of discharge or acquittal of a
 police officer by a criminal court shall not be a bar to the
 award of the departmental punishment. [para 16-18] [527-
 C-D, G-H; 528-A, C-D]                                        H
    518     SUPREME COURT REPORTS             (2013] 12 S.C.R.


A      1.2. In the instant case, the respondent was a
  member of the disciplined force. He was dismissed from
  service due to his involvement in the criminal case,
  wherein he was charged with the offences u/s 395/412
  IPC and s.25/27 of the Arms Act. It is the stand of the
B department that being a member of the disciplined force,
  his involvement in such a heinous crime tarnished the
  image/prestige of the Police Force in the estimation of the
  members of public in general. Before the Enquiry Officer
  from the side of the department, four witnesses were
c examined. The Enquiry Officer believed the evidence of
  PW3 and concluded that the charges levelled against the
  respondent were proved beyond any shadow of doubt,
  except the charge that the respondent stayed out without
  permission. [para 10-11] [523-G-H; 524-A-B; 525-B-C]
D     1.3. Both the Disciplinary Authority as well as the trial
  court were of the view that there are vital evidence on
  record regarding recovery of stolen money and fire arms.
  PW3, the SI, deposed further that the money was
  recovered from the house of the respondent so also the
E motor bike as well as the car which were used during the
  commission of crime. The trial court, however, had to
  acquit the respondent since the witness could not
  identify l".im during the Tl Parade. On going through the
  judgment of the trial court, it cannot be said that the
F respondent was honourably acquitted. [para 13] [525-H;
  526-A-C]
       Deputy Inspector General v. S. Samuthiram 2012
  (11) SCR 174 = (2013) 1 SCC 598; and Commissioner of
  Police, New Delhi & Anr. V. Mehar Singh (2013) 7 SCC 685
G - referred to.
      1.4 The Tribunal as well as the High Court have not
  considered the provision of Regulation 4 of Chapter 19
  of the Police Regulation, Calcutta 1968 and have
  committed a mistake in holding that since the respondent
H was acquitted by a criminal court of the same charges,
  STATE OF WEST BENGAL & ORS. v. SANKAR                     519
                 GHOSH
reinstatement was automatic. The finding recorded by the             A
Tribunal which was confirmed by the High Court cannot
be sustained. Therefore, the order of the Tribunal, which
was affirmed by the High Court is set aside. [para 18]
[528-D-E]
                                                                     B
     Capt. M. Paul Anthony v. Bharat Gold Mines Ltd. & Anr.
(1993) 3 SCC 679, Sulekh Chand & Salek Chand v.
Commissioner of Police & Ors. 1994 (4) Suppl. SCR
119 =1994 Supp. (3) SCC 67 4 and G. M. Tank v. State of
Gujarat & Ors. 2006 (2) Suppl. SCR 253 = (2006) 5 SCC 446            C
- cited.

                      Case Law Reference:

     (1993) 3 sec 679              cited              para 9
     1994 (4) Suppl. SCR 119 cited                    para 9         D

     2006 (2) Suppl. SCR 253 cited                    para 9
      2012 (11)SCR174              referred to        para 14
     (2013) 7 sec 685              referred to        para 15
                                                                     E
    CIVIL APPELLATE JURISDICTION : Civil Appeal No.
10729 of 2013.

     From the Judgment and order dated 20.08.2010 of the
 High Court of Calcutta in W. P. S. T. 570 of 2009.
                                                                     F
     Kalyan Bandopadhyay, Soumitra G. Chaudhuri (for Anip
 Sachthey) for the appellants.

     Nikhil Goel (for A. Venayagam Balan) for the respondent.

     The Judgment of the Court was delivered by                      G

     K.S. RADHAKRISHNAN, J.1. Leave granted.

      2. We are, in this case, concerned with the question
 whether the respondent, who was dismissed from service
 following disciplinary proceedings, is liable to be reinstated on       H
         520      SUPREME COURT REPORTS                [2013] 12 S.C.R.

     A acquittal by a criminal court on the ground of identity of charges
       in the departmental as well as criminal proceedings.

              3. The respondent was working as a Sepoy in the 2nd
         Battalion of the Kolkata Armed Police. At the time of the
         in~dent, he was working as a Sepoy on deputation in the
     B ··Traffic Department of Kolkata Police. He was arrested by the
         police in connection with Khardah P.S. Case No.383 dated
         12.11.2013 and charged for the offences under Sections 392,
         395 and 412 of the Indian Penal Code read with Sections 25
         and 27 of the Arms Act for his complicity in the commission of
     C a dacoity using a motor cycle bearing Registration No.WB-24/
         F-3050. On his arrest, he was prod<1ced before the Sub-
        Divisional Magistrate, Barrackpore, and he was remanded to
        police custody till 28.11.2003 and then to judicial custody till
        30.3.2004. Later, he was released on 1.4.2004. The
     D department placed the respondent under suspension w.e.f.
        26.11.2003 and was later served with a charge sheet on
        1.6.2004. The operative portion of thEl charge sheet reads as
        follows:-

             "You Sepoy 14610 Sankar Ghosh of 2nd Bn., K..A r.
     E
             working on deputation to Traffic Department, Kolkata
             Police, presently under susp~nsion w.e.f. 26.11.2003 F.N.
             are charged with gross misconduct unbecoming of a
             member of the Kolkata Police Force in that :-

     F       (1) You were arrested on 26.11.2003 by Khardah P.S. for
             your direct complicity in commission of dacoity vide
             Khardah P.S. Case No.383 dated 12.11.2003 u/S. 392
             IPC adding Section 395/412 CPC and 25/27 Arms Act by
             using a motor cycle T.V.S. Victor Blue coloured bearing
     G       Regd No.24F/3050

--          (2) You were produced before the Ld. SDJM Barrackpore
            on the same day (2611.03) and resumed P.C. till
            28.11.2003 and then to J.C. till 30.3.2004. You were
            released from Oum Oum Central Jail on 1.4.2004.
     H
   STATE OF WEST BENGAL & ORS. v. SANKAR                    521
        GHOSH [K.S. RADHAKRISHNAN, J.]

    (3) It appears from the record that you have no stay out        A
    permission from the competent authority and you were
    involved in the criminal case in the jurisdiction of Khardah
    P.S. and also arrested from outside the Kolkata Police
    jurisdiction.
                                                                    B
    (4) You being a member of the disciplined force, your
    involved in such type of heinous crime tarnished the image/
    prestige of the Kolkata Police force in the estimation of
    the members of the public in large.

          You are hereby directed to state whether you plead        C
    guilty to the charges or want an open enquiry into the
    matter. Your written reply should reach within 7 (seven)
    days of the receipt of this charge.

                                 Deputy Commission of Police        D
                                  Traffic Department, Kolkata."

     4. The respondent replied to the charge sheet and a
detailed enquiry was conducted by the Enquiry Officer. On
conclusion of the enquiry, the Enquiry Officer after perusing the
materials on record and after hearing the parties drew up his       E
report on the enquiry on 10.11.2004. The Enquiry Officer found
the respondent guilty of the charges levelled against him. The
Disciplinary Authority, after considering the Enquiry Report as
well as after hearing the respondent, concurred with the views
expressed by the Enquiry Officer and ultimately decided to          F
impose the penalty of dismissal from service. The respondent
was, therefore, served with the notice to show cause as to why
he should not be dismissed from service. A detailed reply was
submitted by the respondent. After considering the repl")', the
Disciplinary Authority dismissed the respondent from the            G
Police Force w.e.f. 27.12.2004. The respondent then filed an
appeal before the Appellate Authority.

    5. The Appellate Authority gave a personal hearing to the
respondent on 28.2.2005. The Appellate Authority after having       H
    522      SUPREME COURT REPORTS               [2013] 12 S.C.R.


A noticed that the order of dismissal was not passed by the
  appropriate authority, set aside the order and left it to the
  appropriate authority to pass appropriate orders based on the
  Enquiry Report. The Deputy Commission of Police, 2nd
  Battalion, Kolkata Armed Police, who is the competent authority,
B after considering the entire matter passed a final order
  dismissing the respondent from service w.e.f. 2.6.2005. Against
  the said order, the respondent filed an appeal before the
  Appellate Authority i.e. the Joint Commissioner of Police (A.P.).
  Kolkata Police. The Appellate Authority after considering the
c entire matter, rejected the appeal vide its order dated
  25.8.2005.

        6. The Additional Sessions Judge, Barrackpore, who was
  trying the criminal case levelled against the respondent and five
  other accused persons for committing the offence under 395/
D 412 IPC read with Section 25(1)(a)/27/35 of the Arms Act, in .
  the meanwhile found that the charges levelled against the
  accused persons including the respondent were not found
  proved and consequently vide judgment dated 7.12.2007
  acquitted all the accused persons. The respondent on his
E acquittal in the criminal case filed O.A. No.3961 of 2008 before
  the West Bengal Administrative Tribunal. The Tribunal after
  perusing the judgment of the Sessions Court acquitting the
  respondent and others took the view that the said judgment
  should have a bearing on the decision of the Enquiry Officer
F regarding disciplinary proceedings. Holding so, the appeal was
  disposed of with a direction to the Disciplinary Authority to
  reinstate the respondent in view of the acquittal order passed
  by the Sessions Court in the criminal case.

G       7. Aggrieved by the said order, the State of West Bengal
    along with two others, filed W.P.S.T. No.570 of 2009 before the
    Calcutta High Court. The High Court dismissed the appeal
    upholding the order of the Tribunal, against which this appeal
    has been preferred.

H         8. Mr. Kalyan Bandopadhyay, learned Senior Advocate,
  STATE OF WEST BENGAL & ORS. v. SANKAR                     523
       GHOSH [K.S. RADHAKRISHNAN, J.]
appearing for the State of West Bengal submitted that the            A
Tribunal and the High Court have committed an error in
directing reinstatement of the respondent in service considering
the mere fact that the respondent along with others was
acquitted by the Criminal Court. Learned senior counsel
submitted that the respondent was not honourably acquitted by        B
the Criminal Court. The acquittal was by way of giving benefit
of doubt since the accused persons could not be identified
during the T.I. parade. Further, it was also pointed out that the
High Court has not properly appreciated Regulation 4 of
Chapter 19 of the Police Regulations of Calcutta, 1968, which        c
was applicable to the respondent.

       9. Mr. Nikhil Goel, learned counsel appearing for the
respondent, submitted that the Tribunal and the High Court have
correctly applied the ratio laid down by this Court in Capt. M.
 Paul Anthony v. Bharat Gold Mines Ltd. & Anr. [(1993) 3 SCC         D
679], Sulekh Chand & Salek Chand v. Commissioner of
 Police & Ors. [1994 Supp. (3) SCC 674] and G.M. Tank v.
 State of Gujarat & Ors. [(2006) 5 SCC 446] and ordered
 reinstatement of the respondent. Learned counsel also
 submitted that since the accused persons could not be               E
 identified in the Tl Parade, their complicity could not be
.established. Consequently, the acquittal of the respondent was
 an honourable acquittal. Going by the various judicial
 precedents laid down by this Court, learned counsel submitted
 that the respondent was rightly reinstated in service and the       F
 or<;ler passed by the Tribunal as well as the High Court calls
 for no interference.

      10. We may, at the very outset, point out that the
 respondent was a member of the disciplined force. He was            G
 working as a Sepoy in the 2nd Battalion of the Kolkata Armed
 Force and at the relevant point of time he was working as
 Sepoy on deputation with the traffic department of Kolkata
 Police. It is true that the respondent was dismissed from service
 due to his involvement in the criminal case, wherein he was
                                                                     H
    524     SUPREME COURT REPORTS              [2013] 12 S.C.R.


A charged with the offences under Sectiors 395/412 IPC and
  Sections 25/27 of the Arms Act. It is also the stand of the
  department that being a member of the disciplined force, his
  involvement in such a heinous crime tarnished the image/
  prestige of the Kolkata Police Force in the estimation of the
B members of public in general. Before the Enquiry Officer from
  the side of the department, four witnesses were examined,
  including Jiban Chakraborty, the S.I. Police. Exh. A-3 to A-12
  are the documents produced before the Enquiry Officer. PW3,
  S.I. Jiban Chakraborty, the Inspector of Police before the
C Enquiry Officer deposed as follows :

        "During investigation he arrested some suspects into this
        case. In pursuance to the statement of the suspects he
        arrested the C.O. from his residence situated in 389,
        Milangarh, Natagarh under P.S. Ghosla (24 Pgs.-N) on
D      26.11.03 at 01.05 hrs. He prepared the arrest memo
       (Exhibit No.AS). He conducted in search at this residence
       and recovered a sum of Rs.10,000/- from his possession
        being the stolen recovered money of the said case. He
       also recovered the motor cycle bearing No.WB24F-3050
E      from his house. During investigation he also recovered one
       private car. He stated that both the motor cycle and the
       private car were used during the commission of the crime.
       During investigation he came to know that the O.C. is a
       Constable of Kolkata Police posted to 2nd Bn of Kolkata
F      Police working on deputation traffic dept!. The C.O. was
       produced before the Ld. Court of SDJM, Barrackpore and
       was remanded to P.O. till 29.11.03 on further production,
       the C.O. was remanded to jail custody and enlarged on
       Bail on 30.3.04. After completion of investigation he
G      submitted charge-sheet against the C.O. & others u/s 395/
       412 CPC, 25/27/35 Arms Act.

       Cluring cross examination, the P.W. stated that he seized
       motor cycle was registered in the name of Sri Swapan
       Ghosh and the same was seized from the possession of
H
  STATE OF WEST BENGAL & ORS. v. SANKAR                      525
       GHOSH [K.S. RADHAKRISHNAN, J.]
    Swapan Ghosh. During cross examination the P.W. stated            A
    that it is not a fact that the C.O. has no complicity into the
    case. After thorough investigation & enquiry prima facie
    charge established against the C.O. and others.

      11. The Enquiry Officer believed the evidence of PW3 and 8
concluded that the charges levelled against the respondent were
proved beyond any shadow of doubt, except the charge that
the respondent stayed out without permission. PW3 had
categorically stated that he conducted a search at the residence
of the respondent and recovered a sum of Rs.10,000/- from his C
possession being the stolen money. He had also recovered the
motor cycle bearing No.WB24F-3050 from the respondent's
house which was used for the commission of the crime. During
the investigation, he had also recovered one private car from
 the respondent's residence. Investigation revealed that both the
 motor cycle and the private car were used during the D
 commission of the crime.

     12. We have gone through the judgment of the Sessions
Court. Sessions Court though acquitted the accused persons
including the respondent, concluded as follows :-                     E

     "While there are vital evidence on the record regarding
     recovery of money, recovery of firearm, recovery of unused
     writing pad of Dr. R.P. Mitra, but the most vital missing link
     is the identification made by him in the Tl Parade but           F
     because of the time lag between the date of incident and
     the date of Tl Parade and the date of his statement u/s 164
     Cr.P.C. (1.12.03) and the further time lag of about six days
     for the Tl Parade on 6.12. 03 does not convince my mind
     to accept such evidence relating to identity of the accused
     persons during the trial could not be bridged by the             G
      prosecution through any evidence. The prosecution,
      therefore, fails as the identity of the accused persons has
      not been established before the Court during the trial."

     13. We, therefore, notice that both the Disciplinary Authority   H
    526      SUPREME COURT REPORTS                 [2013] 12 S.C.R.

A as well as the Sessions Court were of the view that there are
  vital evidence on record regarding recovery of money, fire arms
  and recovery of unused writing pad of Dr. R.P. Mitra, PW3, the
  SI deposed further that the money was recovered from the
  house of the respondent so also the motor bike as well as the
B car. The Sessions Court, however, had to acquit the respondent
  since Dr. R.P. Mitra could not identify him during the Tl Parade.
  On going through the judgment of the Sessions Court, it cannot
  be said that the respondent was honourably acquitted.

C        14. In Deputy Inspector General v. S. Samuthiram [(2013)
     1 SCC 598], this Court in paragraph 24, 25 and 26 of the
    judgment has elaborately examined the meaning and scope of
    the "honourable acquittal" and held as follows :-
         "26. As we have already indicated, in the absence of any
D        provision in the service rules for reinstatement, if an
         employee is honourably acquitted by a criminal court, no
         right is conferred on the employee to claim any benefit
         including reinstatement. Reason is that the standard of
         proof required for holding a person guilty by a criminal
E       court and the enquiry conducted by way of disciplinary
         proceeding is entirely different. In a criminal case, the onus
        of establishing the guilt of the accused is on the
        prosecution and if it fails to establish the guilt beyond
        reasonable doubt, the accused is assumed to be innocent.
F        It is settled law that the strict burden of proof required to
        establish guilt in a criminal court is not required in a
        disciplinary proceedings and preponderance of
        probabilities is sufficient. There may be cases where a
        person is acquitted for technical reasons or the prosecution
        giving up other witnesses since few of the other witnesses
G
        turned hostile, etc. In the case on hand the prosecution did
        not take steps to examine many of the crucial witnesses
        on the ground that the complainant and his wife turned
        hostile. The court, therefore, acquitted the accused giving
        the benefit of doubt. We are not prepared to say that in
H
  STATE OF WEST BENGAL & ORS. v. SANKAR                      527
       GHOSH [K.S. RADHAKRISHNAN, J.]
    the instant case, the respondent was honourably acquitted        A
    by the criminal court and even if it is so, he is not entitled
    to claim reinstatement since the Tamil Nadu Service Rules
    do not provide so."

     15. The judgment of S. Samuthiram (supra) was later B
followed by another Bench of this Court in Commissioner of
Police, New Delhi & Anr. V. Mehar Singh [(2013) 7 SCC 685].

      16. We indicate that the respondent could not lay his hand
to any rule or regulation applicable to the Police Force stating
that once an employee has been acquitted by a Criminal Court, C
as a matter of right, he should be reinstated in service, despite
all the disciplinary proceedings. In otherwise there is no rule of
automatic reinstatement on acquittal by a Criminal Court even
though the charges levelled against the delinquent before the
 Enquiry Officer as well as the Criminal Court are the same. On D
 this aspect, reference may be made to para 27 of the judgment
 in S. Samuthiram (supra), which reads as under:-
     "27. We have also come across cases where the service
     rules provide that on registration of a criminal case, an E
     employee can be kept under suspension and on acquittal
     by the criminal court, he be reinstated. In such cases, the
     reinstatement is automatic. There may be cases where the
     service rules provide that in spite of domestic enquiry, if
     the criminal court acquits an employee honourably, he could
     be reinstated, In other words, the issue whether an F
     employee has to be' reinstated in service or not depends
     upon the question whether the service rules contain any
     such provision for reinstatement and not as a matter of
     right. Such provisions are absent in the Tamil Nadu Service
     Rules."                                                     G

    17. Regulation 4 of Chapter 19 of the Police Regulations
of Calcutta, 1968, which is applicable to the case in hand,
specifically provides that acquittal or discharge in a criminal
proceeding shall not be a bar to award punishment in a               H
    528        SUPREME COURT REPORTS              [2013] 12 S.C.R.


A departmental proceeding in respect of the same cause or
  matter. The said Regulation is extracted below for easy
  reference :

           "4. Discharge or acquittal not a bar to departmental
           punishment. - An order of discharge or acquittal of a
B
           Police Officer shall not be a bar to the award of
           departmental punishment to that officer in respect of the
           same cause or matter."

         18. Above rule indicates that even if there is identity of
C charges levelled against the respondent before the Criminal
   Court as well as before the Enquiry Officer, an order of
   discharge or acquittal of a police officer by a Criminal Court
   shall not be a bar to the award of the departmental punishment.
   The Tribunal as well as the High Court have not considered the
D above-mentioned provision and have committed a mistake in
   holding that since the respondent was acquitted by a Criminal
   Court of the same charges, reinstatement was automatic. We
   find it difficult to support the finding recorded by the Tribunal
  \Which was ~!\firmed by the High Court. We, therefore, allow
E the appeal and set aside the orde(of the Tribunal, which was
   affirmed by the High Court. However, there will be no order as
   to costs.

    R.P.                                          Appeal allowed.