RANJIT SINGH, J.

What would be the fate and effect of acquittal of an employee in a criminal proceedings, who is dismissed from service on the basis of the same very allegations by a Disciplinary Authority after having been charge-sheeted and on the basis of a finding by disciplinary enquiry? This question offenly is raised and has been subject matter of adjudication one way or the other. The same question is raised in the present writ petition by the petitioner, who was a Constable working in the Police Department, where he has joined on 7.11.2003

On 6.8.2005, an FIR under Section 354, 376 (2)(g) IPC and 3(xi) of the SC/ST Act was registered against the petitioner. This FIR was lodged by one girl named Papli, who complained that she was raped by 7 accused persons between 31.7.2005 and 5.6.2008 The petitioner would term this FIR to be a false one and registered at the behest of person who carried a grudge against his father and, thus, to be a concocted story.

The petitioner was tried for this offences as mentioned in the FIR and was acquitted on 14.2.2006 It appears that simultaneously departmental proceedings were also initiated against the petitioner. Statements of various witnesses were recorded, including that of Papli Devi. As per the petitioner, all the witnesses, except Papli Devi, were recorded in his absence. The petitioner would further say that though none of the witnesses have supported the case against him, yet the Enquiry Officer has held the charges proved, on the basis of which, Superintendent of Police, Faridabad, served a show cause notice on him on 2.11.2006 The petitioner submitted detailed reply, pleading his false implication due to party faction. He also pleaded the ground of his acquittal to show that allegations against him were not established. Despite this, Superintendent of Police, Faridabad, on 16.11.2006, passed an order, dismissing the petitioner from service. The petitioner thereafter filed an appeal before Inspector General of Police on 11.12.2006 The same was dismissed on 9.4.2007 The petitioner then filed a revision before Director General of Police, which has been dismissed on 5.1.2009 He has, therefore, filed the present writ petition to challenge the order of his dismissal.

Written statement has been filed by respondent No. 4 on behalf of all the respondents. Preliminary submissions are made to state that the writ petition is not maintainable as departmental enquiry has been held against the petitioner by following due process of law. It is then disclosed that the petitioner is accused of raping minor school going girl, for which an FIR as aforementioned was registered against him. The fact that the petitioner was acquitted of the charge is conceded but it is stated to be on the ground that witnesses, including the prosecutrix turned hostile. It is maintained that the departmental enquiry was conducted against the petitioner on the ground that a criminal case had been registered against him. The enquiry has concluded that all the charges against the petitioner are proved. Therefore, a show cause notice was served upon the petitioner and after considering his reply, the petitioner has been dismissed. Respondents would say that the petitioner has committed a gravest act of misconduct and hence, can not be retained in a disciplined force and, thus, pleaded for dismissing the writ petition.

Learned counsel for the petitioner has placed strong reliance on the provisions of Rule 16.3 of Punjab Police Rules, which according to him regulates the action, which is to follow on a judicial acquittal of a person in a criminal case. Rule 16.3 reads as under:-

“16.3 Action following on a judicial acquittal:-

(1) When a Police Officer has been tried and acquitted by a criminal court he shall not be punished departmentally on the same charge or on a different charge upon the evidence cited in the criminal case whether actually led or not, unless:-

(a) the criminal charge has failed on technical grounds; or

(b) in the opinion of the Court or of the Superintendent of Police, the prosecution witnesses have been won over; or

(c) the Court has held in its judgment that an offence was actually committed and that suspicion rests upon the police officer concerned; or

(d) the evidence cited in the criminal case discloses facts unconnected with the charge before the court which justify departmental proceedings on a different charge; or

(e) additional evidence admissible under rule 16.25 (1) in departmental proceedings is available.

(2) Departmental proceedings admissible under sub-rule (1) may be instituted against Lower Subordinates by the order of the Superintendent of Police but may be taken against Upper Subordinates only with the sanction of the Deputy Inspector General of Police and a police officer against whom such action is admissible shall not be deemed to have been honourably acquitted for the purpose of Rule 7.3 of the Civil Services Rules (Punjab), Volume I, Part I.”

The counsel would, thus, contend that when a police officer has been tried and acquitted by a criminal Court, he is not to be punished departmentally on the same charge or on a different charge upon the evidence cited in the criminal case, whether actually led or not. Ofcourse, this is subject to exception as contained above in Rule 16.3 as reproduced above. Taking support of this Rule, the counsel contends that departmental proceedings held against the petitioner are without jurisdiction.

The petitioner has been charge sheeted in the departmental proceedings for the same allegations for which he faced a criminal trial and the department has relied upon the same witnesses who had earlier deposed before the Special Judge, Gurgaon. Besides this, the counsel would also plead that there is no evidence led even in the departmental proceedings to substantiate the charge and the finding against the petitioner is on the basis of no evidence at all. This plea is based on the fact that even the prosecutrix Papli had not identified the petitioner while giving her statement before the departmental enquiry and what all she stated can not be taken on record against the petitioner to attributed any allegation against the petitioner. In support the counsel for the petitioner has also referred to observations made in the case of Capt. M. Paul Anthony v. Bharat Gold Mines Ltd. And another, AIR 1999 Supreme Court 1416.

Mr. Yashwinder Singh, Assistant Advocate General, appearing for the State, however, would support the order passed by the respondents. He would contend that provisions of Rule 16.3 itself carves out an exception, when departmental proceedings can be held against an employee, which according to the State counsel, would be attracted the facts of the present case. State counsel primarily has relied upon Rule 16.3 (1)(d), which provides that where the Superintendent of Police is of the view that the prosecution witnesses have been won over, then the provisions of Rule 16.3 would not come to the rescue of the employee.

Thus, it is now to be seen if the provisions of Rule 16.3 would be applicable to the facts of the present case or not or any exception would apply in the case. The charge sheet for which the petitioner was tried and acquitted and the allegations for which the departmental proceedings were held would show that both the proceedings were for the same very allegations and was sought to be supported on the basis of the same evidence. The petitioner has placed on record a copy of the judgment passed by Special Judge, Gurgaon, while acquitting him. A perusal thereof would show that even the prosecutrix had turned hostile and refused to even identify the accused, including the petitioner. In fact, she gave evidence specifically stating that the accused persons were not those persons who had sexually assaulted her. She was accordingly declared hostile and was subject to cross-examination by the Public Prosecutor. Her father, though appeared as a witness. but did not state much against the petitioner. Jai Narain (PW3) also turned hostile. He was the one to whom Papli, as per the prosecution, had narrated the story. He categorically stated that the prosecutrix had not narrated anything to him, when she met him.

Can on the basis of the evidence, it be stated that the witnesses were won over to bring the case within the purview of exception carved out in Rule 16.3? It is normally understood that the witnesses which are won over are given up by the prosecution and not produced in the Court. A witness, who is produced in the Court by prosecution but does not support its case, is a witness which is termed that he or she has turned hostile. The law permits such witness to be asked a question by the party producing him, which are generally put by opposing party. The evidence of a witness who has turned hostile can not be discarded merely on that ground in entirety and this evidence can still be relied upon if otherwise found trustworthy. Thus, it would be difficult to brand a witness, who turns hostile, to be a witness who is won over. Such witness is a witness, who is suppressing the truth and to elicit truth, an opportunity is given to opposing party to address question in the nature of cross-examination.

In any event, this is not even the ground taken by Superintendent of Police, respondent No. 4, to ignore the acquittal of the petitioner by Criminal Court. This part of the submission and the effect of Rule 16.3 appears to have escaped the notice of respondent No. 4 while passing the impugned order. Respondent No. 4 has noticed as one of the contention raised by the petitioner that he was acquitted by the Criminal Court. This, in the context of Rule 16.3, was required to be considered but has been ignored.

Respondent No. 4 is also not justified in brushing aside the plea of the petitioner that Papli, Jai Narain and Kamal Singh did not support the charge against him. A perusal of statement made by Papli, which is reproduced in the report of the Enquiry Officer would show that she did not even name the petitioner, while giving her version before the Enquiry Officer. Respondent No. 4 has ignored this aspect simply and has relied upon the version contained in the FIR, which Papli had recorded and admitted before the Enquiry Officer that she had recorded the FIR. Will it be legally permissible to rely upon contents of an FIR, when the same witness is subsequently examined and has given evidence on oath, resiling from the version in the FIR to give different version before the Court and even before the Enquiry Officer. The sworn statement is totally contrary to what is recorded in the FIR? This approach, to rely on the version in the FIR and to ignore the version given before Enquiry Officer, in my view, would not be a legal and fair approach. Respondent No. 4 apparently has got swayed by the nature of allegations made against the petitioner and has ignored a judicial verdict of acquittal standing in favour of the petitioner. In this context, respondent No. 4 was also required to see the effect of Rule 16.3, which would go to affect his jurisdiction to decide the issue in this case. Rule 16.3 would come to the rescue of the petitioner, unless respondent No. 4 was to take a view that any of the exceptions contained in the Rule would be attracted to the facts of the case. There is no indication in the order if respondent No. 4 has taken this aspect into consideration. That is not even observed or noticed in the impugned order. In the appeal filed by the petitioner, he has raised a specific plea on the basis of Rule 16.3 and the fact that the petitioner has been falsely implicated in this case. This again did not receive a proper attention either by the Appellate Authority or the Authority which had earlier passed the order of dismissal. The Appellate Authority has again not considered the plea of the petitioner as raised on the basis of Rule 16.3 A mere mention is made in the order that the prosecutrix did not support the charge against the petitioner as she was won over. This is so stated without any basis.

The observations made Hon'ble Supreme Court in the case of Capt. M. Paul Anthony (Supra) would also come to the rescue of the petitioner. In this case, it has been held that where departmental proceedings in a criminal case are based on identical set of facts and evidence in both the proceedings is common and where the employee is acquitted in the criminal case, then said order of acquittal can conclude the departmental proceedings. The order of dismissal in Capt. M. Paul Anthony's case (Supra), was passed before the decision of the criminal case but still it was held liable to be set-aside. The case of the petitioner appears to be rather placed on better footing as he has earned his acquittal in the criminal trial before the order of dismissal was made. In a recent decision of the Hon'ble Supreme Court in the case of The Managing Director, State Bank of Hyderabad and another v. P. Kata Rao, AIR 2008 Supreme Court 2146, has held that when criminal prosecution and disciplinary proceedings are initiated simultaneously on the same facts, then the punishment of dismissal imposed in the disciplinary proceedings are improper when a person is acquitted in the criminal case. While so holding, the Supreme Court has made reference to various earlier decisions, including in the case of Capt. M. Paul Anthony (supra) and has held as under:-

“We are not unmindful of different principles laid down by this court from time to time. The approach that the court's jurisdiction is unlimited although had not found favour with some Benches, the applicability of the doctrine of proportionality, however, had not been deviated from. The legal principle enunciated to the effect that on the same set of facts the delinquent shall not be proceeded in a departmental proceedings and in a criminal case simultaneously, has, however, been deviated from. The dicta of this Court in Capt. M. Paul Anthony v. Bharat Gold Mines Ltd. And another, 1999(2) SCT 660, however, remains unshaken although the applicability thereof had been found to be dependent on the fact situation obtaining in each case.”

Reference may also be made to the case of G.M Tank v. State of Gujarat and others, 2006 (5) SCC 446, where it is held as under:-

“The judgments relied on by the learned counsel appearing for the respondents are distinguishable on facts and on law. In this case, the departmental proceedings and the criminal case are based on identical and similar set of facts and the charge in a departmental case against the appellant and the charge before the criminal court are one and the same. It is true that the nature of charge in the departmental proceedings and in the criminal case is grave. The nature of the case launched against the appellant on the basis of evidence and material collected against him during enquiry and investigation and as reflected in the charge-sheet, factors mentioned are one and the same. In other words, charges, evidence, witnesses and circumstances are one and the same. In the present case, criminal and departmental proceedings have already noticed or granted on the same set of facts, namely, raid conducted at the appellant's residence, recovery of articles therefrom. The Investigating Officer Mr. V.B Raval and other departmental witnesses were the only witnesses examined by the enquiry officer who by relying upon their statement came to the conclusion that the charges were established against the appellant. The same witnesses were examined in the criminal case and the criminal court on the examination came to the conclusion that the prosecution has not proved the guilt alleged against the appellant beyond any reasonable doubt and acquitted the appellant by its judicial pronouncement with the finding that the charge has not been proved. It is also to be noticed that the judicial pronouncement was made after a regular trial and on hot contest. Under these circumstances, it would be unjust and unfair and rather oppressive to allow the findings recorded in the departmental proceedings to stand.

In our opinion, such facts and evidence in the departmental as well as criminal proceedings were the same without there being any iota of difference, the appellant should succeed. The distinction which is usually proved between the departmental and criminal proceedings on the basis of the approach and burden of proof would not be applicable in the instant case. Though the finding recorded i the domestic enquiry was found to be valid by the courts below, when there was an honourable acquittal of the employee during the pendency of the proceedings challenging the dismissal, the same requires to be taken note of and the decision in Paul Anthony case will apply. We, therefore, hold that the appeal filed by the appellant deserves to be allowed.”

The sweep of Rule 16.3 of the Rules came up for consideration before a Division Bench of this Court, though not directly in a case titled Sukhjit Singh Khaira v. State of Punjab and others, 2005 (1) SCT 50. While discussing the ratio of law laid down in another case titled Balwant Singh, Ex.Constable v. Inspector General of Police and others, 1983 (1) SLJ 176. The Division Bench in the case of Sukhjit Singh Khaira (supra) observed as under:-

“In the case of Balwant Singh (supra), this Court was dealing with a case where no departmental action could have been taken against the petitioner in view of the provisions of Rule 16.3 of the Punjab Police Rules as he had been duly acquitted of the charge by the criminal court. It was admitted in the written statement filed on behalf of the State of Punjab that allegations contained in the charge-sheet and the criminal charge were identical. Subsequently, however, it was sought to be argued that the charge before the departmental authority related only to absence from duty. This plea was rejected by the High Court. It was held that the petitioner was entitled to the benefit of Rule 16.3 of the Police Rules. The prosecution, despite being given 6/7 opportunities to lead evidence had failed to do so. The criminal court, therefore, had no alternative, but to record the findings that the charge against the petitioner had not been substantiated and acquitted him of the charge. It was argued on behalf of the State of Punjab that the petitioner would not be entitled to the protection of rule 16.3 as the criminal charge had failed on technical ground. In these circumstances, it was held by the High Court as under:-

“5……An acquittal to be an acquittal on technical ground would be one where the evidence had substantiated the charge, but the accused had to be acquitted on account of some legal lacuna. Such is not the position here.”

Rule 16.3 of the Punjab Police Rules provides that when a Police Officer has been tried and acquitted by a criminal Court, he shall not be punished departmentally on the same charge or on a different charge upon the evidence cited in the criminal case……..”

As can be noticed, Constable Balwant Singh was acquitted of the criminal charge, when the prosecution despite 6/7 opportunities failed to lead evidence. On this basis, it was sought to be argued that the criminal charge had failed on technical ground. The Court in Constable Balwant Singh's case (supra) in this regard rightly observed that acquittal on technical ground would be one where the evidence had substantiated the charge but the accused person is acquitted or let off on account of some legal lacuna.

Undoubtedly, the Departmental proceedings in the criminal case against the petitioner are based on identical and similar set of facts and the charge in a departmental proceedings against the petitioner and the one before criminal trial are also the same. The nature of evidence led in the criminal trial and before the departmental proceedings is also almost identical. The witnesses from the Department, who were examined in addition to other witnesses who had appeared to depose facts, did not disclose anything regarding the factual issues involved in this case. Thus, it can be said that the nature of case launched against the petitioner in a criminal trial and the material which has come on record against him during enquiry, investigation etc. and the disciplinary proceedings are the same. On appreciation of the evidence given by same set of witnesses, the criminal Court had come to the conclusion that the prosecution was not able to prove the guilt of the petitioner and accordingly acquitted him by judicial pronouncement. Finding is that the charge against the petitioner was not proved. This judicial pronouncement is after a regular trial, though may not have been as hotly contested as the criminal trial generally are because the witnesses in this case had resiled and were declared hostile. In any event, the petitioner has earned acquittal in a criminal trial and it would be unjust and unfair and rather oppressive to dismiss him from the service for the same allegation on same set of witnesses. In G.M Tank's case (supra), the findings recorded in the departmental proceedings were not allowed to stand on the basis of a finding returned by Criminal Court subsequent to the finding in the departmental proceedings. Here the finding in the Criminal Court was prior to the departmental proceedings and its findings. It can also not be said that any different version has been given in the departmental proceedings by the same witnesses, who were examined by the Criminal Court to justify the different finding returned by the Enquiry Officer. The evidence in the criminal trial and the version in the departmental proceedings being same, there being no difference, the petitioner can not be made to suffer a different findings, which are not even supported by the evidence led in the departmental proceedings. As observed by the Hon'ble Supreme Court, the usual distinction between the standard of proof required in the departmental proceedings and the criminal trial, considering the nature of burden of proof in each case, would not be applicable in this case as the main witness has not linked the petitioner with the allegations alleged against him. There is, thus, a clear violation of the rule position seen as contained in Rule 16.3 of the Rules.

I have given my anxious consideration to the facts and circumstances of this case to see if the order of dismissal passed against the petitioner could be sustained or justified on any of the exceptions contained in Rule 16.3 I have not been able to convince myself that any of the exception would be attracted to the facts of this case and especially the plea which is being raised that acquittal of the petitioner in the criminal trial was on account of the fact that the witnesses were won over. This aspect has also been considered and dealt with in detail above, despite the fact that this is not even the justification advanced by respondent No. 4 while passing the impugned order. It appears to be an after thought and an attempt at this stage to justify the order of dismissal. The prosecutrix did not support the case of prosecution while appearing before the Enquiry Officer but still the Enquiry Officer has held against the petitioner and respondent No. 4 has passed an order dismissing the petitioner from service. It can be said that the impugned order passed against the petitioner is not based on any material or evidence. In a way, it is a case of no evidence. These findings of fact recorded by Enquiry Officer can, thus, be termed as perverse and based on no evidence.

The impugned order, dismissing the petitioner from service, thus, can not be sustained and the same is set-aside. The Appellate order as well as the revisional orders are also set-aside. The writ petition is accordingly allowed. There shall, however, be no order as to costs.

July 16, 2009 (RANJIT SINGH)

khurmi JUDGE