Sunil Ambwani, A.C.J:— We have heard learned counsel appearing for the parties.
2. The Special Appeals arise out of the judgments dated 1.10.2004 and 5.10.2004 passed by Hon'ble Mr. Justice Sunil Kumar Garg (as he then was) and Hon'ble Mr. Justice B.Prasad (as he then was) respectively, by which they have dismissed the writ-petitions against the orders dated 24.4.2001, by which the review petitions filed by the appellants-petitioners were rejected by the Governor of Rajasthan, to review the orders dated 10.6.1998 passed by the DIG Police, Jodhpur Range, Jodhpur rejecting the representations of the appellants-petitioners, 3.6.1981 by the Inspector General of Police, Rajasthan, Jaipur dismissing the appeal of the appellants-petitioners and 7.9.1978 passed by the Dy. Inspector General of Police, Jodhpur Range, Jodhpur, by which after a departmental enquiry under Rule 16 of the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958 (for short, hereinafter referred to as “the Rules of 1958”), the appellants-petitioners were dismissed from service.
3. Shri Asgar Ali-appellant in Special Appeal No. 253/06 and Shri Idanappellant in Special Appeal No. 12/05 were serving as Constable and Sub-Inspector, Police Station Desuri District Pali. They were placed under suspension and charge-sheeted on 24.9.1975 under Rule 16 of the Rules of 1958 on the charges as follows:—
“(a) Charges against Shri Asgar Ali
i) That the petitioner was posted as Constable at the Police Station Desuri for the period from 2.3.1975 to 12.9.1975 and while he was Page: 2743posted as such, on 28.6.75, Lal Mohd. brought two men and three women having three small cloth bags with them and on the search being conducted by Sub Inspector Idan, 15 kgs. of contraband opium was found in them and said opium was misappropriated by Sub Inspector Idan and Sub Inspector Idan released the accused persons and thus, the present petitioner was also a party to the conspiracy fulfilling selfish motive and leaving the duty without taking any sort of permission and providing succor in disposition of illegal opium.
ii) Not only that, thereafter, the petitioner without informing the higher authorities accompanied Sub Inspector Idan in a jeep and disbursed the contraband opium for illegal consideration and further more he did not inform about happenings of that incident to the higher authorities.
(b) Charges against Shri Idan
4. The appellants-petitioners submitted reply to the charge-sheet and participated in the departmental enquiry. The disciplinary enquiry was held jointly alongwith the departmental enquiry against Head Constable Shri Bakhtawar Singh, FC-Shri Sultan Ahmed, FC-Shri Khuda Bux, FC Shri Lal Mohd., FC-Shri Govind Ram and FC-Shri Jeev Singh charged in the same incident. After conclusion of departmental enquiry, the Dy. Superintendent of Police, Circle Sojat District Pali submitted enquiry report holding the appellants-petitioners guilty of the charges. The charges against other police personnel were not found proved.
5. After considering the enquiry report, the Disciplinary Authority-Dy. Inspector General of Police, Jodhpur Range, Jodhpur issued a show cause notice to the appellants-petitioners on 24.5.1977 proposing the punishment of removal from service. A copy of the enquiry report was also sent to them alongwith the notice.
6. Both the appellants faced criminal prosecution on the registration of criminal case against them under sections 409, 217 and 225A IPC, in which the charges were framed on 1.9.1978
7. The appellants made a request on 4.9.1978 to the DIG, Jodhpur Range, Jodhpur, to stay the departmental proceedings until the conclusion of the criminal trial. However, instead of staying the departmental proceedings, the Dy. Inspector General of Police, Jodhpur Range, Jodhpur vide order dated 7.9.1978 dismissed the appellants-petitioners from service, on the finding that charges were found proved against them. The appeals filed by the appellants-petitioners against the dismissal order were dismissed by the Inspector General of Police, Jaipur on 3.6.1981
8. It is submitted that since the criminal trial was pending against the appellants-petitioners on the same charges, they were advised not to pursue the matter against the appellate order dated 3.6.1981 and to wait for the result of the criminal trial.
9. By the judgment and order dated 30.3.1996, the Criminal Case No. 196/93 was concluded. The Additional Chief Judicial Magistrate, Pali, after considering the entire evidence led before him, recorded the findings that the prosecution has not been able to prove that the accused Idan and Asgar Ali (appellants) were present at the Police Station at the time of alleged incident. The prosecution was also not been able to proved that any bus was checked and from which, the substance recovered was in-fact opium. It was not proved that the accused had disposed of the opium. It was also not proved that the accused had taken away the opium in a Jeep. Thus, in view of the evidence lead on record, the prosecution could not prove the crime against the accused beyond all reasonable doubt. Shri Idan was acquitted from the charge under Sec. 409 IPC Shri Asgar Ali was also acquitted of the charge u/Sec. 409/109 IPC. They were acquitted and their bail bonds were discharged.
10. In the case of appellant-Asgar Ali, learned Single Judge has distinguished the judgments cited at the Bar including the judgment of the Supreme Court in Cap. M. Paul Anthony v. Bharat Gold Mines Ltd. (1999 SCC (L&S) 810) and has relied on the judgment of the Supreme Court in Secretary, Ministry of Home Affairs v. Tahir Ali Khan Tyagi (JT 2002 (Suppl. 1) SC 520) in holding that the acquittal in criminal case will not affect the fate of the departmental enquiry as well as the punishment imposed in that enquiry. In the case of Idan, learned Single Judge has relied on the judgment of the Division Bench of this Court in Abhay Ram v. State of Rajasthan (D.B Civil Special Appeal No. 896/97 decided on 4.2.2004) and held that it is always permissible to proceed in departmental proceeding even if a criminal charge is not held to be proved.
11. In case of the appellant- Asgar Ali, learned Single Judge further held that the punishment was imposed on 7.9.1978 and the criminal case came to Page: 2745an end by the judgment dated 30.3.1996 and therefore, the criminal proceedings have no nexus with the departmental enquiry that had taken place long back and thus, the acquittal in criminal case, would not affect the impugned orders passed after the departmental enquiry. He also held that though there is no specific period of limitation for filing the writ petition, the High Court may refuse to exercise the extraordinary powers, where the petitioner is found guilty of laches and undue delay, for which there is no satisfactory explanation. It was found that in the present case, there was delay of about 18 years in between the order of punishment and acquittal and that thereafter, the petitioner waited for six years before filing the writ petition.
12. Learned counsel appearing for the appellants submits that there was no delay in filing the writ petitions, inasmuch as, having lost the appeals in the departmental enquiry, they were advised to wait, as the criminal trial on the same charges was pending. Since application filed by the appellants to stay the departmental proceedings was dismissed, the appellants were advised to wait for the conclusion of the criminal trial. After the order of acquittal, they filed representations to the Inspector General of Police and State Government, which were dismissed on 10th June, 1998 and 18th December, 1998 and thereafter, they preferred a review to the Governor of the State, which was dismissed on 24.4.2001 on the ground that there was no provision for review and thus, the review petition was returned in original alongwith letter of the Dy. Secretary, Governor, Rajasthan on 24.4.2001
13. It is submitted that in the facts and circumstances, in which the appellants were subjected to departmental enquiry and that their request to stay the departmental proceedings during the pendency of the criminal trial was not accepted and further, in view of the fact that the appellants were honourably acquitted by the criminal court, they had not taken unreasonable time in challenging the orders passed by the departmental authorities. They were all along diligent and were pursuing the legal remedies open to them.
12. Learned counsel appearing for the appellants submits that learned Single Judge has erred in law in applying the judgment of the Supreme Court in Secretary, Ministry of Home Affairs v. Tahir Ali Khan Tyagi (supra), to the present case, in which the facts are distinguishable. In Tahir Ali Khan Tyagi's case (supra), the respondent was caught in a trap and was prosecuted on a criminal charge of taking bribe, in which he was acquitted, as the persecution witnesses did not support the prosecution case. Subsequently, the department initiated departmental proceedings on the same charge. The Administrative Tribunal quashed the proceedings on the ground of acquittal in the criminal case. The High Court dismissed the writ petition, after which the Supreme Court held that there was no prohibition for continuation of criminal proceedings and departmental proceedings simultaneously and that even after acquittal in the criminal proceedings, the departmental proceedings could continue, since the degree of proof varies. The order of the High Court that the departmental proceedings could not be allowed to continue, was erroneous. The order of the High Court was set aside and the departmental proceedings were directed to be concluded expeditiously.
15. It is submitted by learned counsel appearing for the appellants that the facts of the case in Cap. M. Paul Anthony (supra) decided on 30.3.1999 by Page: 2746the Hon'ble Supreme Court as a landmark judgment on the subject, are similar to the present case. In Cap. M. Paul Anthony's case (supra), the disciplinary proceedings were initiated on the charges that 4.5 grams of mining sponge gold ball and 1276 grams of ‘gold-bearing sand’ were recovered from the house of the appellant. The officer serving as Security Officer was acquitted in a criminal case on the same charges, with the categorical finding that the prosecution had failed to establish its case. In the disciplinary proceedings, he requested for reinstatement, but his request was turned down. The Supreme Court allowed the appeal and set aside the judgment of the Division Bench of the High Court. Though learned Single Judge gave liberty to the respondents to initiate fresh disciplinary proceedings, but in the peculiar circumstances of the case, specially having regard to the fact that the appellant was undergoing agony since 1985 despite having been acquitted by the criminal court in 1987, the Supreme Court did not direct any fresh departmental enquiry to be instituted against the appellant on the same set of facts. The appellant was directed to be reinstated forthwith as Security Officer and he be paid the entire arrears of salary, together with all allowances from the date of suspension till his reinstatement, as also Rs. 15,000/- as costs.
16. The Supreme Court in Cap. M. Paul Anthony's case (supra), also gave guidelines regarding the course to be adopted where a person is charge-sheeted in a departmental proceeding and on the same charges, criminal prosecution is also instituted against him. In paragraphs 22 and 34 of the judgment, the Supreme Court held as follows:—
“22. The conclusions which are deducible from various decisions of this Court referred to above are:
(i) Departmental proceedings and proceedings in a criminal case can proceed simultaneously as there is no bar in their being conducted simultaneously, though separately.
(ii) If the departmental proceedings and the criminal case are based on identical and similar set of facts and the charge in the criminal case against the delinquent employee is of a grave nature which involves complicated questions of law and fact, it would be desirable to stay the departmental proceedings till the conclusion of the criminal case.
(iii) Whether the nature of a charge in a criminal case is grave and whether complicated questions of fact and law are involved in that case, will depend upon the nature of offence, the nature of the case launched against the employee on the basis of evidence and material collected against him during investigation or as reflected in the charge sheet.
(iv) The factors mentioned at (ii) and (iii) above cannot be considered in isolation to stay the Departmental proceedings but due regard has to be given to the fact that the departmental proceedings cannot be unduly delayed.
(v) If the criminal case does not proceed or its disposal is being unduly delayed, the departmental proceedings, even if they were stayed on account of the pendency of the criminal case, can be resumed and proceeded with so as to conclude them at an early date, Page: 2747so that if the employee is found not guilty his honour may be vindicated and in case he is found guilty, the administration may get rid of him at the earliest.
34. There is yet another reason for discarding the whole of the case of the respondents. As pointed out earlier, the criminal case as also the departmental proceedings were based on identical set of facts, namely, ‘the raid conducted at the appellant's residence and recovery of incriminating articles there from.’ The findings recorded by the Inquiry Officer, a copy of which has been placed before us, indicate that the charges framed against the appellant were sought to be proved by Police Officers and Panch witnesses, who had raided the house of the appellant and had effected recovery. They were the only witnesses examined by the Inquiry Officer and the Inquiry Officer, relying upon their statements, came to the conclusion that the charges were established against the appellant. The same witnesses were examined in the criminal case but the court, on a consideration of the entire evidence, came to the conclusion that no search was conducted nor was any recovery made from the residence of the appellant. The whole case of the prosecution was thrown out and the appellant was acquitted. In this situation, therefore, where the appellant is acquitted by a judicial pronouncement with the finding that the “raid and recovery” at the residence of the appellant were not proved, it would be unjust, unfair and rather oppressive to allow the findings recorded at the ex-parte departmental proceedings, to stand.”
17. In Samar Bahadur Singh v. State of U.P (Civil Appeal No. 7643 of 2011 decided on 5th September, 2011), the Supreme Court held in paragraphs 11 and 12 of the judgment as follows:—
“11. Acquittal in the criminal case shall have no bearing or relevance to the facts of the departmental proceedings as the standard of proof in both the cases are totally different. In a criminal case, the prosecution has to prove the criminal case beyond all reasonable doubt whereas in departmental proceedings, the department has to prove only preponderance of probabilities. In the present case, we find that the department has been able to prove the case on the standard of preponderance of probabilities. Therefore, the submissions of the counsel appearing for the appellant are found to be without any merit.
12. Now, the issue is whether punishment awarded to the appellant is disproportionate to the offence alleged. The appellant belongs to a disciplinary force and the members of such a force is required to maintain discipline and to act in a befitting manner in public. Instead of that, he was found under the influence of liquor and then indulged himself in an offence. Be that as it may, we are not inclined to interfere with the satisfaction arrived at by the disciplinary authority that in the present case punishment of dismissal from service is called for. The punishment awarded, in our considered opinion, cannot be said to be shocking to our conscience and, therefore, the aforesaid punishment awarded does not call for any interference.”
18. In Deputy Inspector General of Police v. S. Samuthiram ((2013) 1 SCC 598 : AIR 2013 SC 14), the Supreme Court held in paragraphs 17, 18, 19, 20, 23, 24 and 25 as follows:—
“17. This Court, in Southern Railway Officers' Association v. Union of India, (2009) 9 SCC 24: AIR 2010 SC 1241 : 2010 AIR SCW 548, held that acquittal in a criminal case by itself cannot be a ground for interfering with an order of punishment imposed by the Disciplinary Authority. The Court reiterated that order of dismissal can be passed even if the delinquent officer had been acquitted of the criminal charge.
18. In State Bank of Hyderabad v. P. Kata Rao, (2008) 15 SCC 657: (AIR 2008 SC 2146): (2008 AIR SCW 3146), this Court held that there cannot be any doubt whatsoever that the jurisdiction of the superior Courts in interfering with the finding of fact arrived at by the Enquiring Officer is limited and that the High Court would also ordinarily not interfere with the quantum of punishment and there cannot be any doubt or dispute that only because the delinquent employee who was also facing a criminal charge stands acquitted, the same, by itself, would not debar the disciplinary authority in initiating a fresh departmental proceeding and/or where the departmental proceedings had already been initiated, to continue therewith. In that judgment, this Court further held as follows:
“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. ((1999) 3 SCC 679) : (AIR 1999 SC 1416 : 1999 AIR SCW 1098), however, remains unshaken although the applicability thereof had been found to be dependant on the fact situation obtaining in each case.”
19. In a later judgment of this Court in Divisional Controller, Karnataka State Road Transport Corporation v. M.G, Vittal Rao, (2012) 1 SCC 442, this Court after a detailed survey of various judgments rendered by this Court on the issue with regard to the effect of criminal proceedings on the departmental enquiry, held that the Disciplinary Authority imposing the punishment of dismissal from service cannot be held to be disproportionate or non-commensurate to the delinquency.
20. We are of the view that the mere acquittal of an employee by a criminal court has no impact on the disciplinary proceedings initiated by the Department. The Respondent, it may be noted, is a member of a disciplined force and non-examination of two key witnesses before the criminal court that is Adiyodi and Peter, in our view, was a serious flaw in the conduct of the criminal case by the Prosecution. Considering the facts and circumstances of the case, the possibility of winning order P.Ws 1 and 2 in the criminal case cannot be ruled out. We fail to see, why the Prosecution had not examined Head Constables 1368 Adiyodi and 1079 Peter of Tenkasi Police Station. It was these two Head Constables who took the respondent from the Page: 2749scene of occurrence along with P.Ws 1 and 2, husband and wife, to the Tenkasi Police Station and it is in their presence that the complaint was registered. In fact, the criminal court has also opined that the signature of PW 1 (husband - complainant) is found in Ex. P1 - Complaint. Further, the Doctor P.W 8 has also clearly stated before the Enquiry Officer that the respondent was under the influence of liquor and that he had refused to undergo blood and urine tests. That being the factual situation, we are of the view that the respondent was not honourably acquitted by the criminal court, but only due to the fact that PW 1 and PW 2 turned hostile and other prosecution witnesses were not examined.
23. As we have already indicated, in the absence of any provision in the service rule 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 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. 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 pre-ponderance 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 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 in the instant case, the respondent was honourably acquitted 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.
24. We have also come across cases where the service rules provide that on registration of a criminal case, an employee can be kept under suspension and on acquittal by the criminal court, he be reinstated. In such cases, the re-instatement is automatic. There may be cases where the service rules provide in spite of domestic enquiry, if the criminal court acquits an employee honourably, he could be reinstated. In other words, the issue whether an 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.
25. In view of the above mentioned circumstances, we are of the view that the High Court was not justified in setting aside the punishment imposed in the departmental proceedings as against the respondent, in its limited jurisdiction under Article 226 of the Constitution of India.”
19. Learned counsel appearing for the respondents submit that the appellants were subjected to disciplinary proceedings, in which charges were Page: 2750found proved against them and on which they were punished with removal from service. The charges were grave and serious in nature. The appellants had not only deliberately failed to report the recovery of 15 kg. opium, which was recovered from the possession of five persons while inspecting the bus, they also did not report the crime and the recovery in the records of the Police Station and took away the recovered items and disposed of the same. As police personnel, the charges were serious and on proving the same, they were removed from service. The subsequent acquittal in criminal charges, after a long period of about 18 years would not entitle them to any relief both on the ground that in the departmental proceedings, the degree of proof of charges is different and further, that there was long and inordinate delay in challenging the punishment awarded in the departmental enquiry.
20. After considering the arguments and perusing the records including the charges in both the departmental enquiry and criminal trial, we find that from the very beginning the appellants had taken a defence that no such recovery of opium as alleged was made from the five persons while searching a bus on 28.6.1975 Since nothing was recovered, there was no question of detaining the persons and making any report or recording any recovery. The allegations of having appropriated the opium were entirely false and baseless.
21. In the enquiry report submitted in the departmental proceedings by the Dy. Superintendent of Police, Circle Sojat District Pali, the charges were sought to be proved on the statements of Raghunath Singh, Constable, Gani Khan, Driver, Jeev Singh, Constable, Lal Mohammed, Constable, Govind Ram, Constable, Khuda Bux, Constable, Hanuman Singh, Dy. SP, Sultan Ahmed, Constable and Bakhtawar Singh, Head Constable. The appellant-Idan cross-examined three of the witnesses and thereafter, absented from the departmental enquiry and did not appear, despite registered notices and summons issued from the Police Station, after which the proceedings continued against him ex-parte. Another criminal case was initiated against him in Criminal case No. 43 dated 28.10.1976 under sections 409, 217 and 225 IPC, in which the investigation was started and thus, in order to save himself from arrest, he remained absent in the departmental proceedings for a long period of time, during which he sent telegrams that he was not well and will produce medical certificates subsequently.
22. From the statements of witnesses, the enquiry officer came to the conclusion that on 28.6.1975, in the after noon, on receiving information about the gang of smuggler of opium given by Shri Lal Khan, on the instruction of Idan, the Subordinate Officers inspected the bus and recovered opium in small bags from two men and three women. They were brought to the Police Station alongwith recovered opium. Idan instead of recording the arrest and recovery, left the Police Station alongwith Asgar Ali and after reaching some distance, he left the Jeep and proceeded on motor-cycle to dispose of the opium. Asgar Ali was on the wireless duty. He left the duty and proceeded with Idan on motor-cycle to dispose of the opium. They were thus found guilty of not reporting the crime and recovery and appropriating the opium recovered from the persons travelling in the bus. The Disciplinary Authority considered the enquiry report and the reply given by the appellants and held them to be guilty with punishment of removal from service.
23. In the criminal trial, Shri Raghunath Singh, Shri Khuda Bux, Shri Jeev Singh and Shri Lal Mohd. were examined as witnesses. Shri Raghunath Singh in his examination stated that he had seen the opium to be brought to the office where the bags were opened and on sniffing it was found that the substance recovered was opium. The Addl. Chief Judicial Magistrate did not believe his statement on the ground that in cross-examination he accepted that at the time of incident, he was posted on the gate and had admitted that the place is not visible from the gate. Apart from this, he had not stated in his statement to the police that on sniffing, the material was found to be opium. The statement of Lal Mohd. that he was got down from the Jeep by Idan and when he turned round, he saw that concerned two persons were also made to get down from the jeep, was not believed, as he had not mentioned these facts in his police statement. Further, he had not stated in his statement to the police that he had informed the Clerk (Munshi) at the Police Station about the getting down of two concerned persons from the jeep. The Additional Chief Judicial Magistrate also did not believe the statements of Raghunath Singh, Khuda Bux and Jeev Singh, who had stated that Lal Mohd. had informed them that two persons were deboarded from the Jeep by Idan, as the statement of Lal Mohd was not found believable that he had informed about the incident of getting down of two concerned persons from the Jeep, to the Clerk (Munshi) and other Constables at the Police Station. The Addl. Chief Judicial Magistrate also did not believe the statement of Raghunath Singh that the bags of opium were taken to the quarter of the Police Station Incharge alongwith Asgar Ali, as no such statement was made before the police. The statement of Lal Mohd was further disbelieved as he had not stated that in his presence, Idan has kept the opium in his attache-case and in the attache-case, which was being taken away in the Jeep, there was opium. Khuda Bux had admitted in his cross-examination that he did not know as to what was the contents of the attache-case, which was being taken away in the jeep by the appellants.
24. The Additional Chief Judicial Magistrate observed that there are contradictions in the statements of the prosecution witnesses as to when Lal Mohd. had left the Police Station and came back, which Constables had gone for checking and which persons had sniffed and tasted the opium. Further, some of the witnesses had stated that opium was in the baskets, some of them stated that it was in the bags and some of them stated that it was in the kattas. There was inconsistency about the colour of the bags in which the opium was packed.
25. The Addl. Chief Judicial Magistrate further observed in his order that the witnesses have given statements by exaggerating the event and considering the contradictions in their statements, it was not appropriate to believe them and on these inconsistencies and contradictions, it was found that the charges were not proved beyond reasonable doubt. It was not proved that the accused were present in the Police Station at the time of incident and that the opium was recovered from the custody of any person during checking of the bus. The Addl. Chief Judicial Magistrate held that since on the evidence on record, the charges have not been proved beyond reasonable doubt, the accused were liable to be acquitted.
26. After considering the evidence and the findings recorded in the departmental enquiry in the year 1978 and the findings recorded by the Addl. Chief Judicial Magistrate in a criminal trial in the year 1996, after a period of about 18 years, we find that the departmental proceedings and the criminal case were based on identical and similar set of facts, but since the charges were of grave nature, which involved complicated questions facts, it was desirable for the department to stay the proceedings. The department, however, proceeded with the proceedings in which the Enquiry Officer, considering the statements of the witnesses, recorded the findings that the opium was recovered on the search of the bus from five persons, who were brought to the police station, for which no report was made. Neither arrest was made nor recovered opium was deposited at the Police Station. From the evidence of the Constables on duty at the Police Station, it is established that the recovered substance was opium and that both the appellants had conspired to dispose of the opium by taking it away in the Jeep. The findings were recorded on the basis of the statements of witnesses recorded in 1978 with regard to the incident dated 28.6.1975 The police personnel present at the Police Station had supported the charges. The appellant-Idan left the enquiry proceedings after cross-examining three witnesses and absented continuously during which he was also subjected to investigation in another criminal case. The Dy. Inspector General of Police has given sufficient reasons in believing the enquiry report based on the statements of the Constables, who were posted at the Police Station.
27. Even if for the sake of argument, it is admitted that the substance recovered was not opium, the search of the bus and apprehension of two male and three female having three bags, which were brought to the Police station, was established. The appellants, thereafter, did not give any explanation why they left the place and proceeded in a jeep RJT 2278 to Bagol, from where they proceeded on a motor-cycle and went to a unspecified space. These allegations against the Incharge Police station, who did not record the recovery and proceeded with the bags from the Police Station in a Jeep and thereafter, continued journey on motor cycle, were sufficient to prove dereliction of duty by the Police Officer, who was Incharge of the Police Station and the Constable, who was manning the wireless set. These allegations on its own, which were established after examining the witnesses and allowing cross-examination, were sufficient for awarding punishment to the appellants.
28. So far as the criminal case is concerned, the witnesses were examined after a period of about 18 years from the date of the incident. All the witnesses had supported the apprehension of five persons and the search of the bus and recovery of bags, which were opened at the Police Station and were found to be opium. The Addl. Chief Judicial Magistrate disbelieved the witnesses on the basis of the earlier statements given to the police, on minor contradictions and discrepancies, such as the place where the bags were opened, was not visible from the gate and the statement given about leaving the Police Station with the bags and informed the Clerk (Munshi) at the Police Station were contrary to the statements given to the police. During investigation, the approach of the Addl. Chief Judicial Magistrate in recording Page: 2753and discussing the evidence of an incident which happened about 18 years ago and in respect of which 8 of the witnesses had deposed about the recovery of opium, is by way of a cautious approach, which is normally adopted in a criminal case. The inconsistencies and contradictions appeared to have been crept into the depositions after a long period of time. We do not find that any of the witnesses had turned hostile in the criminal case or had given a statement, which would have helped the accused.
29. On the aforesaid facts and circumstances, we are of the view that considering the difference in the proof of charges in the departmental proceedings and criminal trial and the delay in recording the evidence in the present case in the criminal trial, as well as inordinate delay after which the appellants have approached the High Court against the findings recorded in the departmental proceedings, the appellants are not entitled to any relief from this Court.
30. The appellants Idan and Asgar Ali were posted as Incharge and Constable at the Police Station. They were responsible police personnel. The information about the smuggling, the search of bus, apprehension of five persons with bags, which were found to be opium after opening at the Police station, was necessary to be recorded in the Police records. The findings in this regard in the departmental proceedings, cannot be faulted, nor its effect cannot be taken away on the findings recorded in a criminal case, after a period of about 18 years, in which on minor contradictions and inconsistencies, the statements of witnesses for prosecution were disbelieved by the Addl. Chief Judicial Magistrate.
31. For the aforesaid reasons, we are of the view that no interference is required to be made in this case, to disturb the findings recorded by learned Single Judges, who decided the writ petitions.
32. The Special Appeals are accordingly dismissed. A copy of this judgment will be placed in the file of connected Appeal No. 12/2005.