1. Petitioner Motising Chhagu-sing Vaghela has filed this petition under Article 226 of the Constitution of India. There is no dispute that, at all the relevant times, petitioner was an unarmed Police Head Constable and as such, an employee of the former Bombay State. The original respondent was Shri C. M. Thaker, who was District Superintendent of Police. Mehsana There is no dispute that he was, at the relevant time, the officer competent to dismiss petitioner from service. The present respondent Shri S. D. Mehta is the successor in-office of the original respondent Shri C. M. Thaker It will be convenient to mention the facts leading up to the present petition at first. On 16th April 1959, petitioner was serving at Patan Police Station, District Mehsana. On that day, he was suspended by the original respondent on the ground that he was involved in a corruption case. Subsequently, petitioner was prosecuted in Special Case No. 3 of 1959 before the learned Special Judge. Mehsana on the allegation that, on or about 25th January 1959, petitioner had accepted a bribe of Rs. 90 from one Shanker Parshottam of village Borsan as motive or reward for showing favour to the said Shanker Parshottam, viz., to forbear from prosecuting that person for an alleged offence of trafficking in women and that the favour was shown by petitioner in the exercise of his official function On 30th September 1959, petitioner was acquitted by the learned Special Judge and he ordered that a B-Summary might be granted Aggrieved by this order of acquittal, the State Government preferred an appeal to this High Court, the appeal being Criminal Appeal No. 81 of 1960. That appeal was dismissed by this Court by a judgment delivered on 14th and 15th September 196. This Court not only upheld the findings recorded by the learned Special Judge but held that "on the evidence, the conclusion is irresistible that the case which has been alleged against the accused is without any foundation and concocted". Petitioner's grievance is that though, according to Instruction No. 5 (iii)(a) issued by the former Government of Bombay and published in 1958 in the book entitled "Instructions regarding the holding of Departmental Enquiries against Police Officers and below the rank of Police Inspectors of Police Force in the State of Bombay", petitioner was entitled to be reinstated in service with minimum delay, petitioner was not reinstated in service for a long period of time and that, instead of such reinstatement, petitioner was served with a charge-sheet on 16th October 1901 in which two charges were levelled against him and a departmental enquiry was proposed to be instituted against him. The first charge in this departmental charge-sheet was the same as the charge which was framed in the criminal trial. The second charge was that petitioner had failed to obey the legal orders of the Police Inspector, Anti-Corruption Branch, at the time when the trap on 26th January 1959 was implemented by him, that he tried to run away on that occasion, that he scuffled with the above officer and that he caused him bodily injury The show cause notice mentioning the aforesaid charges was given to petitioner by the original respondent. Petitioner appeared in response to this notice and contended before the original respondent that he had no authority to hold the departmental enquiry and that the holding of the departmental enquiry constituted a contempt of the High Court. The original respondent, however, proceeded further with the enquiry and after recording evidence, summed up his findings in an order, dated 31st March 1962, a copy of which was served to petitioner. The original respondent thereafter, on 1st April 1962, issued the second show cause notice to petitioner informing him that petitioner should show cause why he should not be dismissed from service on the basis of the findings recorded by him against petitioner. The original respondent held that both the aforesaid charges had been proved. At that stage, petitioner came up to this Court and filed the present petition in which he challenged the proceedings on some of the grounds, to be presently mentioned. At that stage, the contention of petitioner was that the original respondent had no jurisdiction to hold an enquiry against him and that in any case, the enquiry was had because the suspension order had not been withdrawn; that the original respondent had no right to take a view different from the one that had been taken by the High Court in the criminal proceedings on the basis of the same evidence which had been considered by that Court; that the departmental proceedings constituted a contempt of the findings recorded by the High Court; and that, in any case, the facts of the case disclosed that the original respondent had made up his mind to punish petitioner. That petition was admitted by this Court on 23rd April 1962 and a rule was issued to the original respondent. Petitioner, at that time, prayed for an interim relief for restraining the original respondent from proceeding further with the departmental enquiry. However, such an interim relief was refused. During the pendency of this petition, therefore, the proceedings started by the second show cause notice on 1st April 1962 proceeded further and, ultimately, the original respondent ordered on 30th April 1962 that petitioner be dismissed from service. Thereupon, petitioner made Civil Application No. 1029 of 1963 for amending the petition, which application was granted by an order, dated 16th July 1963. Though the events which took place after the present petition was admitted have been recited in the above civil application no corresponding amendments were applied for in the original petition itself, nor were any additional grounds incorporated in the petition, But, we permitted Mr. Barot to frame his submissions on the basis of the fresh events which had taken place and Mr. Sompura on behalf of the respondent did not raise any objection. The original petition was amended only by incorporating three reliefs which have been numbered as (g), (h) and (i). Mr. Barot concedes that, in view of the new events which took place after the admission of the petition, the original reliefs (a) to (e) do not survive. Therefore, in the present petition, we are only concerned with the reliefs (f), (g), (h) and (i) mentioned in the petition. By those reliefs, petitioner prays that this High Court should hold that order of dismissal, dated 30th April 1902, was illegal and invalid; that this High Court should direct respondent or any of his successor-in-office to reinstate petitioner forthwith in service and that this High Court should further direct respondent or any of his successors to pay to petitioner full salary "as if he was never dismissed from service". The facts so far narrated by us are not in dispute, except that we may state that respondent does not admit that the evidence on the basis of which the order of dismissal was passed was not the same as the evidence in the criminal proceeding. All that is admitted by respondent is that the witnesses who were examined in the criminal proceeding were the same who were examined in the departmental proceedings.
2. On the basis of the aforesaid facts, the submissions which Mr. Barot makes for the decision of this Court are as follows:
(1) That the departmental enquiry is bad since petitioner was acquitted by the High Court on the same facts (2) That there was no evidence whatsoever before the original respondent which would support or sustain the findings recorded by him that the aforesaid two charges were proved against petitioner.
4. That brings us to a consideration of Qamarali's case, AIR 1959 Madh Pra 46. Qamarali was a Sub-Inspector of Police and he, along with some others, was prosecuted for offences under Ss. 304, 331 and 201, Indian Penal Code, in the Court of a First Class Magistrate. The learned Magistrate acquitted all the accused "honourably". The matter was not taken up further by the prosecution. The charge against Qamarali was that, on the night of 7th February 1944, he had treated one Mozi by third degree methods in the course of an investigation in connection with a theft alleged to have been committed by that person and that, as a result of the torture, Mozi's two ribs were fractured, his spleen was ruptured and ultimately Mozi died. The Magistrate found that there was no healing on the night of 7th February 1944; that, after the investigation, Mozi went back to his house alive; and that there were no marks of injury on Mozi's body, but that his two ribs were fractured and his spleen was ruptured Thereafter, a departmental enquiry was held against Qamarali and the charge in the departmental enquiry was that Qamarali had concealed the facts as to the cause of the death of Mozi "who was alleged to have met his death at the hands of" Qamarali and other police officers during the investigation Ultimately, as a result of the enquiry, Qumarali was dismissed. Qamarali then brought the suit, from which the second Appeal was being decided by Tare, J., for a declaration that the order of dismissal was void. The ground on which that contention was urged was that the departmental authorities had no right to sit in judgment over the decision of the criminal Court and, therefore, the order of dismissal was wholly without jurisdiction. The contention of the State Government in that case was that the charge in the criminal trial was different from the charge in the departmental enquiry. This contention was upheld by Tare, J. He held that the concealment of facts referred to other matters about conducting the investigation or holding the Interrogation prior to the death of Mozi which could not be a subject-matter of the charge under Section 201 of the Indian Penal Code. Mr. Sompura's contention is that the point which Mr. Barot raises in the present case, therefore, did not arise for consideration in the above judgment. Having regard to what we have stated uptill now, Mr. Sompura is right. In paragraph 5, after recording the findings as aforesaid, the learned Judge proceeds to hold that, on that finding, "there was no bar to the holding of a departmental enquiry as was laid down by Their Lordships of the Supreme Court in the case of Venkata-raman", to which we have already referred Mr. Sompura is also right in contending that the learned Judge has, with due respect, misunderstood the decision in Venkataraman's case, AIR 1954 SC 376. We have already set out the ratio of Venkataraman's case, AIR 1954 SC 375. The ratio of that case, as already pointed out, is that a decision re corded by a Commissioner under the Public Servants (Enquiries) Act, 1850, is not a prosecution within the meaning of Article 20(2). That case did not decide as Tare, J., considers in the case under consideration that a departmental proceeding is barred if there is an order of acquittal passed by a criminal Court on the same facts. Though Mr. Barot did not concede in express terms that Qamarali's case, AIR 1959 Madh Pra. 46 is not identical with the facts of the present case, Mr Barot had nothing to urge against the argument of Mr Sompura that, in that case, the charges in the departmental and the criminal proceedings being different, the point which is raised by Mr. Barot in the present case did not conic up for consideration and was not decided But what Mr. Barot contends very strenuously is that the decision in Qamarali's case, AIR 1959 Madh Pra 4G was recorded on a set of facts which was weaker than the facts obtaining in the present case' and this is based upon the observations made by Tare, J.. in paragraphs (6) and (9) of the judgment reported on pages 48 and 49 of the citation. The learned Judge begins the discussion on the aforesaid aspect of the case by observing that it was true that although the subject-matter of the departmental enquiry and the subject-matter of the charges in the criminal case were different, the record showed that the substance of the charge was based "on the assumption of the plaintiff's guilt in the criminal case". Having pointed this out, the learned Judge proceeds to make the following observations :--
"Once the criminal Court came to the conclusion that the deceased Mozi did not the on the night of 7-2-1944, the same fact could not be taken as the basis for any departmental action for the purpose of framing any charge, Once the alleged cause of death on 7-2-1944 was negatived by a Court of Law by a judgment, which had become final, no other authority or Court or even a private individual could assume that the plaintiff was guilty of the offence. If a private individual were to repeat the allegations contained in a charge, of which the accused had been acquitted in a Court of law, the accused could certainly proceed against the other person civilly or criminally for defamation.
"Even a public authority would not be protected, if it flouted the verdict of the law Court. Further Ex. P-13 shows that the Inspector General of Police was mainly guided by the assumption of the plaintiff's guilt in the said crime and it was from that point of view that he judged the material in the departmental inquiry. Therefore, the very basis of the order of dismissal was unwarranted and illegal. Such an order based on unwarranted and unauthorised assumplions could not be said to be an order passed within powers or within jurisdiction of the authority."
Mr. Barot very strongly relies upon these observations. Mr. Sompura, however, contends that the aforesaid observations must be read in the context of the facts obtaining in the case and he submits that the said observations do not mean anything further than this that the order of dismissal in the aforesaid case was based on an assumption of Mozi having died on a particular date, which assumption was not borne out by the record of the case and, therefore, that fact could not have been made the basis of an order of dismissal specially when that fact was inconsistent with the finding solemnly recorded by a Court of Law. Though some of the aforesaid observations can be explained on the ground sought to be put forward by Mr. Sompura, all the observations cannot be explained on that ground. If Mr. Sompura were right, then, it would not have been necessary for the learned Judge to make the first part of the observations reproduced above. The decision then would be based on the simple ground that the order of dismissal was based on an assumption and not on proof of an important fact in controversy. That the learned Judge did intend to decide that a departmental proceeding cannot be initiated or an order of dismissal cannot be supported when a criminal Court has recorded an order of acquittal is further clear from a number of passages which occur in paragraph (9). In that paragraph, the learned Judge after pointing out that in every proceeding under Article 311, clause (2) of the Constitution, there are two slages in which two opportunities are given to the delinquent, proceeds to observe as follows:--
"The former opportunity is justifiable on the ground of the principle of natural justice, while the latter is specifically provided for by the Constitution. It would be reducing the constitutional guarantee to a nullity, if a Government servant without any tentative conclusion of guilt were called upon to show cause against the action proposed to be taken. In such an event, he could not be called upon to show any cause whatsoever, as was held by a Division Bench of this Court consisting of Sinha C. J. (as he then was) and Bhutt J. in the case of
M. A. Waheed v. The State of M. P.,
ILR (1654) Nag 371:
AIR 1954 Nag 229"
.
This passage is only a prelude to some other passages which constitute really the basis of the decision and these passages are as follows:
"The same would be the position if the conclusion of guilt could not be arrived at all. In the present case, the conclusion could not be arrived at, as the appellant was honourably acquitted of all charges by the criminal Court. The assumption of guilt in the criminal offences was the very basis of the charge in the departmental enquiry. No authority could be permitted to hold a departmental enquiry on that basis. There would he no question of sitting in judgment as an appellate Court over the departmental authority. As such, this case is clearly distinguishable from the case of Bhagwandas Verma v. State of Madhya Pradesh, (M. P. No. 15 of 1955, D/- 27-8-1956 (Nag) ) (cited supra) decided by Naik, J.
"In the present case, the very elementary principle of natural justice had been violated, namely, that as per verdict of a Court of law, the appellant had been held innocent of the crime, while the departmental authority purported to sit in judgment over the law Court, as if it were an appellate authority If this were permitted, the very foundation of the administration of justice would tumble down. It is true that this Court cannol sit in judgment over the departmental authority as an appellate Court. But it is equally true that a departmental authority cannot be permitted to sit in judgment over a law Court, as if if were an appellate authority "Therefore, the charge framed in the departmental enquiry could not at all be framed. The further proceedings in the departmental enquiry were just a nullity. They can as well be ignored by this Court. The conclusion of guilt could not be arrived at in the departmental enquiry, as no such enquiry could be held. If no conclusion of guilt could be arrived at, the appellant could not be called upon to show cause against the action proposed to be taken on the basis of the conclusion arrived at in the departmental enquiry It is thus that the operation of Article 311(2) is affected xxxx".
In our judgment, the latter passages show that Mr. Sompura's reading of the aforesaid judg-ment is not correct Qamarali's case completely supports the proposition for which Mr. Barot contends. However with great respect to the learned Judge, we are unable to agree with the conclusion that he has arrived at. The principal reason given by the learned Judge for his conclusion is that the holding of a departmental enquiry on the same facts on which a criminal Court had recorded an order of acquittal was violation of the principles of natural justice With due respect we cannot agree with this view of the learned Judge. The learned Judge has expatiated this view by stating that a departmental authority cannot be permitted to sit in judgment over a law Court as if it were an appellate authority There is no principle of natural justice which prevents a departmental authority from doing this. Even apart from this as we have already pointed out, when a departmental authority investigates into the same facts, it does not purport to sit in judgment over the order of acquittal. That is not the object of his enquiry or the function that he is discharging. The object of his enquiry, as already pointed out, is to find out whether a delinquency has or has not been committed and whether the delinquent does or does not deserve to be retained in service and if he is to be re-tained, on what terms. Just as, even in legal proceedings a criminal judgment is not binding on a civil Court and if a civil Court investi-gates into the same facts already investigated into by a criminal Court, there is no breach of any principle of natural justice, similarly when a departmental authority is investigating into a case already decided upon by a criminal Court, he does not commit breach of any principle of natural justice. Another reason adduced by the learned Judge in support of his conclusion is that, in his view, if any enquiry were to be instituted against the tenor of a judgment recorded by a criminal Court, then, the person holding such an enquiry would render himself liable to a civil or criminal action for defamation. In connection with a similar argument based on the law of contempt of Court, we have rejected Mr. Barot's argument. At least, without any further authority which does not appear in the judgment of the learned Judge, nor was any cited by Mr. Barot, we are not prepared to hold that the law of defamation as stated by the learned Judge is correctly stated. So far as we have been able to see, these are the two principal reasons which appealed to the learned Judge and on the basis of which be arrived at the conclusion that he did. In our judgment, none of those two reasons is of any cogency On the contrary, for the reasons which we have already indicated above--and in our judgment these are cogent reasons,--it is impossible to hold that a departmental enquiry is barred when a criminal Court has recorded an order of acquittal Therefore, we must reject the broad submission of Mr. Barot which he formulated after Qamarali's rase was cited.
5. The qualified submission which Mr. Barot at first made has also no merit and deserves to be rejected. Mr. Barot's contention is that, even if a departmental enquiry can be held after an order of acquittal has been recorded, it can be held only if there is additional evidence or material at the disposal of the competent authority. Having regard to the reasons which we have given above, based on the difference in the scope of the two enquiries, the difference in the degree of proof and the difference in the principles on the basis of which evidence is appreciated, such a qualification is not at all necessary to be introduced and cannot be sustained If an enquiry can be held as we have already held that it can be so held, on the same facts on which the order of acquittal was founded, then, there is no necessity or justification in law for the introduction of the aforesaid qualification Mr. Barot contends that it is odd and in some cases it may even generate lack of confidence in public servants if an order passed by a criminal Court were not to be respected and a departmental enquiry were to be held and a different conclusion recorded and such a serious consequence were permitted to follow as an order of dismissal on the same facts and materials already considered by the criminal Court. But, it is for the Legislature to consider this aspect of the matter and not for the Court to hold that the departmental enquiry is barred specially when there is no breach of constitutional or statutory laws or any violation of the principle of natural justice. In our judgment, having regard to the present state of the law, Mr. Sompura is right in contending that the matter relates to the realm of propriety and not to the realm of validity or the enquiry of the order which may be passed therein. Mr. Sompura submits that the authorities are fully aware of this aspect of the matter and that, in this connection, at least so far as the departmental enquiries against police officers are concerned, he points out to us Rule 445 (2) in the Bombay Police Manual, 1959, Volume I, Eighth Edition, in which suitable instructions have been issued to the competent authorities as to how they should proceed when an order of acquittal has been recorded. In favour of a police officer. The instruction directs the competent authorities to consider the reasons in the case of an acquittal by a Court which led to an acquittal, but, at the same time, points out that if the officer is not satisfied after considering such reasons that the delinquent is fit for retention in public service, then, he must hold a regular departmental enquiry in the matter. We will leave the matter at that stage and say nothing further on this aspect of the matter.
6. The second submission of Mr. Barot in that there was no evidence in the departmental enquiry on the basis of which the order of dismissal can be sustained. However, Mr. Barot was unable to point out to us anything on the record which would go to show that there was no evidence whatsoever before the competent authority on the basis of which the order of dismissal could be passed. The summing up is on the record of the case and from that summing up, it is quite clear that there was evidence which, if believed, would sustain the order of dismissal. What really Mr. Barot has in mind is not total lack of evidence, but the quality of that evidence. What really Mr. Barot contends is that the order of dismissal was passed on the aforesaid evidence which had been found to be false and concocted in an appeal decided by this Court. That is entirely a different aspect and an order cannot be stated to be mala fide simply because, in a former proceeding, a higher Court, entrusted with criminal jurisdiction, had come to the conclusion that that evidence was false or was conceded. The rule of law on the subject is that the evidence must be of such a character that no reasonable person on that particular evidence could ever have recorded the finding that the competent authority has done. No argument was addressed by Mr. Barot on this subject and, therefore, the second submission of Mr. Barot must equally be refected.
7. As regards the third submission, apart from the utility of that submission in so far as the present petition intends to challenge the order of dismissal, the submission itself is based upon an improper reading of the instruction on which Mr. Barot relies. That instruction is not an absolute one. The instruction is qualified and the instruction says that the time-lag between the acquittal and the reinstatement should be reduced to the absolute minimum "if the reinstatement of an officer on acquittal or discharge is decided upon". From the facts of the present case, it is quite clear that, after the order of acquittal was recorded, the competent authority, in his discretion, thought that a reinstatement of petitioner was not proper or expedient and once he came to that particular conclusion, the aforesaid instruction cannot come into play. Under the aforesaid circumstances, the third submission of Mr. Barot must be rejected.
8. For the aforesaid reasons, in our judg-ment, there is no substance in this petition and the same deserves to be dismissed. Having regard to the facts of the case, there will be no order as to costs.
Rule discharged. No order as to costs.