REPORTABLE IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO(s). 7130 OF 2009

SHASHI BHUSAN PRASAD ….APPELLANT(S)

VERSUS

INSPECTOR GENERAL CENTRAL INDUSTRIAL SECURITY FORCE & ORS.           ….RESPONDENT(S)

J U D G M E N T

Rastogi, J.

1. This appeal is directed against the final judgment and order

dated 17th  July, 2008 passed by the High Court of Orissa

dismissing the writ petition filed by the appellant.

2. The brief seminal facts which may be relevant for

consideration  of the  present appeal  are that  while serving  as

Constable in Central Industrial Security Force (in short “CISF”)

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Unit, Rourkela Steel Plant, Rourkela, a criminal case was

instituted against the appellant in Plantsite P.S. Case No. 378 of

1992 under Section 25(1) of the Arms Act and he was arrested on

30th  November, 1992 on the allegation that he had provided a

country made revolver to Subash Chandra Agarwalla, who

murdered his aunt with it, giving rise to Sessions Trial No.

188/41 of 1993.  At the same time, for a gross misconduct being

committed by him in discharge of his duties, disciplinary

proceedings were initiated against him by serving a

Memorandum along with the  charge­sheet  dated 9th  February,

1993 under Rule 34 of CISF Rules, 1969.

3. After holding disciplinary inquiry in terms of the procedure

prescribed under the scheme of Rules, 1969, the Inquiry Officer

after due compliance of the principles of natural justice, recorded

a finding of guilt and the charge against the delinquent appellant

stood proved as it reveals from the report of Inquiry(Annexure P­4

of the  paper  book)  dated  27th  April, 1994.  After copy  of the

inquiry report  was  made available to the appellant and after

affording him an opportunity of hearing, the Disciplinary

Authority concurred  with the finding recorded  by the Inquiry

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Officer and while upholding the guilt inflicted him with a penalty

of dismissal from service vide Order dated 21st May, 1994.  It

may be relevant to note that the Sessions Trial No. 188/41 of

1993 was also  proceeded against  him and  it reveals from the

record that since the material prosecution witnesses stood

hostile, he was acquitted by the competent Court of jurisdiction

vide judgment dated 12th September, 1995.   

4. Being dissatisfied with the order of dismissal passed by the

Disciplinary Authority, the appellant preferred departmental

appeal primarily on the ground that since he has been acquitted

in the criminal case which is based on the same set of facts and

evidence, the order of dismissal passed by the Disciplinary

Authority is not legally sustainable.  The appeal was rejected by

the appellate authority vide order dated 24th  April, 1996 which

was further assailed before the Revisional Authority that also met

with the fate of its dismissal.   That came to be challenged in a

Writ Petition before the High Court under Articles 226 and 227 of

the Constitution of India.  The High Court of Orissa, on appraisal

of the  material on record and taking  note of the submission

alleged by the appellant of his acquittal in the criminal trial vide

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judgment dated 12th September, 1995 still had faced the order of

dismissal by the Disciplinary Authority being not sustainable but

the High Court after examining in totality the facts and

circumstances of the case, dismissed the writ petition vide

judgment  dated  17th  July,  2008  which is a subject  matter of

appeal before us.

5. The main thrust of submission of  learned counsel for the

appellant is that since both the criminal/departmental

proceedings were based on same set of facts and evidence, and

after he has been acquitted by the Court of competent

jurisdiction vide judgment dated 12th  September, 1995, the

Disciplinary/Appellate Authority was under an obligation to give

precedence of the judicial proceedings and in the given

circumstances, inflicting penalty of dismissal from service based

on the report of inquiry was not legally sustainable and further

submitted  that the  error  has  not  only  been committed by  the

departmental authorities but also by the High Court in not

appreciating the submission made by the appellant in its right

earnest and in the given circumstances, the judgment impugned

dated 17th July, 2008 deserves to be interfered by this Court.

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6. In support of his submission, learned counsel for the

appellant has placed reliance on the judgment of this Court

reported in M. Paul Anthony Vs. Bharat Gold Mines Ltd. and

Ors.   1   and G.M. Tank Vs. State of Gujarat and Ors.   2   

7. Per contra, learned counsel for the respondents, on the

other hand, while supporting the finding recorded by the High

Court under the impugned judgment dated 17th  July, 2008

further submits that the charge in a departmental inquiry and in

the criminal case stood against the appellant were totally

different, in the criminal case he was charged for committing an

offence under Section 25(1)(a) of the Arms  Act,  while in the

departmental inquiry, the charge was of a delinquency which he

committed in discharge of his duties in handing over an

unlicensed fire arm with ammunitions(a country made revolver)

concealed in a brief case at the residence of Constable S.P. Patel

on 19th  November, 1992 which has facilitated Subash Chandra

Agarwalla (accused) in a criminal case against in committing an

1 1999(3) SCC 679 2 2006(5) SCC 446

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offence under Section 302/392 IPC and under Section 27 of the

Arms Act.

8. According to the learned counsel, both the allegations are

based on different sets of facts and evidence having no co­

relationship and once the appellant  has  been held guilty in a

disciplinary inquiry has been rightly punished with the penalty of

dismissal from service,  having no nexus with  the  judgment  of

acquittal passed by the Court of competent jurisdiction.   

9. Learned counsel further submits that what being urged by

the  appellant  has  been examined by the  High Court  and  this

being the settled principles of law that in a disciplinary inquiry

one has to proceed on the “preponderance of probability” whereas

in the criminal case, the charge is to be “proved beyond

reasonable doubt” being based on two sets of fundamental

principles which has been examined by the High Court in extenso

needs no interference by this Court.

10. We  have  heard learned  counsel for the  parties  and  with

their assistance perused the material available on record.

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11. At the outset, it may be apposite to take note of the Article

of charge which was imputed against him in the departmental

proceedings: ­

“No : 884481265 Constable Sashi Bhushan Prasad is charged with gross misconduct and serious breach of discipline unbecoming of a member of the armed force in  that  he  handed over  an unlicensed  fire  arm with ammunitions (a country made revolver) concealed in a brief case at the residence of No. 88441220 Constable S.P. Patel on 19.11.92 in the evening by suppressing the fact that the same was used in a case of murder in the same day.”

12. Disciplinary inquiry was held against him under Rule 34 of

CISF Rules, 1969 for the gross misconduct and serious breach

committed by him in discharge of his official duties in handing

over unlicensed fire arm  with ammunitions (a country  made

revolver) concealed in a brief case at the residence of Constable

S.P. Patel on 19th November, 1992 and in support of the charge,

the statement of PW­5 Smt. Laxmi Patel w/o Constable S.P. Patel

was recorded.   In the course  of  disciplinary inquiry, she  had

categorically stated that the  appellant  Constable came to  her

house in the evening and handed over small brief case to her for

keeping it in the house.   When she asked the appellant at the

time of handing over of the brief case as to what it contained, the

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appellant replied that it contained clothes.   When her husband

came back from duty, she told him of the brief case handed over

to her by the appellant for keeping it in the house.  Her husband

PW­4  Constable S.P. Patel also narrated the fact which  was

reported by his wife PW­5 Laxmi Patel when he returned back on

19th November, 1992.   

13. There was further allegation against him that he had

suppressed the fact that the country made revolver was used in

the murder case the same day.  After an independent inquiry was

conducted by the Inquiry Officer the charge stood proved against

him and  it was confirmed by the Disciplinary Authority, after

affording  him an  opportunity  of  hearing,  and  being  a serious

misconduct on the part of the appellant, which he had committed

in discharge of  duties,  penalty of  dismissal  was  inflicted upon

him, after due compliance of the principles of natural justice in

terms of the scheme of CISF Rules 1969 and that came to be

confirmed on rejection of his appeal/revision by the

Appellate/Revisional  Authority  and also  by the  High Court  on

dismissal of the  writ petition vide judgment dated 17th  July,

2008.

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14. At the same time, in the criminal case which was instituted

against him, the charge against the appellant was  “Accused

Sashi bhusan Prasad stands charged U/s 25(1)(a)  of the Arms

Act.”   

15. So far as the charge in the departmental inquiry and the

charge in the criminal case is concerned, indubitably it was

different having been inquired on an independent set of facts and

evidence in a departmental/judicial proceedings.  That apart, the

fact which reveal from the judgment of acquittal passed by the

Court of competent jurisdiction dated 12th September, 1995 that

Shankar Prasad Patel and his wife Laxmi Patel had appeared in a

criminal case as PW­4 and PW­5 and both were declared hostile.

Apart from that, the other material witnesses were also declared

hostile and that was the reason for which the Court came to the

conclusion that the prosecution failed to prove the charge against

him while acquitting him vide  judgment dated 12th  September,

1995.

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16. The facts noticed by  us  which  have been inquired in a

disciplinary inquiry and in the judicial proceedings indisputedly

are  based on different  allegations and  the  set  of  evidence  not

based on  the  same  facts  and circumstances  and  in  the  given

situation, the very submission made by the appellant of taking

the benefit of acquittal in a judicial proceedings instituted against

him on the plea of  having nexus with the disciplinary  inquiry

loses its foundation.

17. The scope of departmental enquiry and judicial proceedings

and the effect of acquittal by a criminal Court has been examined

by a three Judge Bench of this Court in  Depot Manager A.P.

State Road Transport  Corporation Vs.  Mohd.  Yousuf Miya

and Others   3.  The relevant para is as under:­

“…The purpose of departmental enquiry and of prosecution are two different and distinct  aspects. The criminal prosecution is launched for an offence for violation of a duty, the offender owes to the society or for breach of which law has provided that the offender shall make satisfaction to the public. So crime is an act of commission in violation of law or of omission of public duty. The departmental enquiry is to maintain discipline in the service and efficiency  of  public  service. It  would, therefore,  be expedient that the disciplinary proceedings are conducted and completed as expeditiously as possible. It is not, therefore, desirable to lay down

3 1997(2) SCC 699

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any guidelines as inflexible rules in which the departmental proceedings may or may not be stayed pending trial in criminal case against the delinquent officer. Each case requires to be considered in the backdrop of its own facts and circumstances. There would be no bar to proceed simultaneously  with departmental enquiry  and  trial of  a  criminal case unless  the charge  in  the criminal trial is  of  grave nature involving complicated questions of  fact and law. Offence generally implies infringement of public (sic duty), as distinguished from mere private rights punishable under criminal law. When trial for criminal offence is conducted it should be in accordance with proof of the offence as per the evidence defined under the provisions of the Evidence Act. Converse is the case of departmental enquiry. The enquiry in a departmental proceedings relates to conduct or breach of duty of the delinquent officer to punish him for his misconduct defined under the relevant  statutory rules  or law. That the strict standard of proof or applicability of the Evidence Act stands excluded is a settled legal position.  The enquiry in the departmental proceedings relates to the conduct of the delinquent officer and proof in that behalf is not as high as in an offence in criminal charge. It is seen that invariably the departmental enquiry has to be conducted expeditiously so as to effectuate efficiency in public administration and the criminal trial will take its own course.  The nature of evidence in criminal trial is entirely different from the departmental proceedings. In the former, prosecution is to prove its case beyond reasonable doubt on the touchstone  of  human  conduct. The standard of proof in the departmental proceedings is not the same as of the criminal trial. The evidence also is different from the standard point of the Evidence Act. The evidence required in the departmental enquiry is not regulated by the Evidence Act.  Under  these circumstances,  what  is required to be seen is  whether the departmental enquiry would seriously prejudice the delinquent in his defence at the trial in a criminal case. It is always a question of fact to be considered in each case depending on its own facts and circumstances. In this case, we have seen that the charge is failure to anticipate the accident and prevention thereof. It has nothing to do with the culpability of the offence

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under  Sections  304­A  and 338, IPC.  Under these circumstances, the High Court was not right in staying the proceedings.”

       (Emphasis supplied)

18. The exposition has been further affirmed by a three Judge

Bench of this Court in  Ajit Kumar Nag Vs.  General Manager

(PJ), Indian  Oil  Corporation  Limited,  Haldia  and  Others   4,

this Court held as under: ­

“As  far as acquittal of  the appellant by a criminal court is concerned, in our opinion, the said order does not  preclude  the Corporation  from taking an action if it is otherwise permissible. In our judgment, the law is fairly well settled. Acquittal by a criminal court would not debar an employer from exercising power in accordance with the Rules and Regulations in force. The two proceedings, criminal and departmental, are entirely different. They operate in different fields and have different objectives. Whereas the object of criminal trial is to inflict appropriate punishment on the offender, the purpose of enquiry proceedings is to deal with the delinquent departmentally and to impose penalty in accordance with the service rules. In a criminal trial, incriminating statement  made by the accused in certain circumstances or before certain officers is totally inadmissible in evidence. Such strict rules of evidence and procedure would not apply to departmental proceedings. The degree of proof which is necessary to order a conviction is different from the degree of proof necessary to record the commission of delinquency. The rule relating to appreciation of  evidence  in  the  two proceedings  is also not similar. In criminal law, burden of proof is on the  prosecution  and  unless the  prosecution is able to prove the guilt of the accused “beyond reasonable doubt”, he cannot be convicted by a court of law. In a departmental enquiry, on the other

4 2005(7) SCC 764

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hand, penalty can be imposed on the delinquent officer on a finding recorded on the basis of “preponderance of probability”. Acquittal of the appellant  by a Judicial  Magistrate, therefore,  does not      ipso facto      absolve  him  from  the liability  under the disciplinary jurisdiction of the Corporation. We are, therefore,  unable to  uphold the  contention of the appellant that since he was acquitted by a criminal court, the impugned order dismissing him from service deserves to be quashed and set aside.”

 (Emphasis supplied)

19. We  are in full  agreement  with the exposition  of law  laid

down by this Court and it is fairly well settled that two

proceedings criminal and departmental are entirely different.

They operate in different fields and have different objectives.

Whereas the object of criminal trial is to inflict appropriate

punishment on an offender, the purpose of enquiry proceedings

is to deal  with the delinquent departmentally and to impose

penalty in accordance with the service Rules.  The degree of proof

which  is  necessary to  order  a  conviction  is  different from the

degree of proof necessary to record the commission of

delinquency.  Even the rule relating to appreciation of evidence in

the two proceedings is also not similar.  In criminal law, burden

of proof is on the prosecution and unless the prosecution is able

to prove the guilt  of  the accused beyond reasonable doubt, he

cannot be convicted by a Court of law whereas in the

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departmental enquiry, penalty can be imposed on the delinquent

on a finding recorded on the basis of ‘preponderance of

probability’.  Acquittal by the Court of competent jurisdiction in a

judicial  proceeding  does  not ipso facto  absolve the  delinquent

from the liability under the disciplinary jurisdiction of the

authority.   This what has been considered by the High Court in

the impugned judgment in detail and needs no interference by

this Court.   

20. The judgment in  M. Paul Anthony case  (supra) on which

the learned counsel for the appellant has placed reliance was a

case where a question arose for consideration as to whether the

departmental proceedings and proceedings in a criminal case on

the basis of same sets of facts and evidence can be continued

simultaneously and this Court answered in para 22 as under:­

“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

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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 charge­sheet.

(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, so 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.”

21. It may not be of assistance to the appellant in the instant

case for the reason that the charge levelled against the appellant

in the criminal case and departmental proceedings of which

detailed reference has been made were on different sets of facts

and evidence having no nexus/co­relationship.   The kind of

criminal act/delinquency which he had committed in discharge

of  his duties  in the course of  employment.  That apart,  much

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before the judgment of the criminal case could be pronounced,

the departmental  enquiry was concluded and after  the Inquiry

Officer had held him guilty, he was punished with the penalty of

dismissal from service.

22. The judgment in  G.M. Tank case(supra) on which the

learned counsel for the appellant has placed reliance was a case

where this Court had proceeded on the premise that the charges

in the criminal case and departmental enquiry are grounded

upon the same sets of facts and evidence.  This may not be of any

assistance to the appellant as  we have observed that in the

instant case the charge in the criminal case and departmental

enquiry were different having no nexus/co­relationship based on

different sets of facts and evidence which has been independently

enquired in the disciplinary proceedings and in a criminal trial

and acquittal in the criminal proceedings would not absolve the

appellant from  the liability  under the  disciplinary  proceedings

instituted against him in which he had been held guilty and in

sequel thereto punished with the penalty of dismissal from

service.   

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23. It is not the case of the appellant that any error committed

in the procedure prescribed under the scheme of Rules 1969 has

been violated or opportunity to hearing has not been afforded or

the  principles  of  natural justice  has been violated, in absence

thereof, it is otherwise not open for the Courts to interfere in the

disciplinary proceedings under its limited scope of review under

Articles 226 & 227 of the Constitution of India.

24. Consequently, in our considered view, the appeal is without

substance and is accordingly dismissed.  No costs.

25. Pending application(s), if any, stand disposed of.

………..………………………………J. (N.V. RAMANA)

………..………………………………J. (MOHAN M. SHANTANAGOUDAR)

………………………………………..J. (AJAY RASTOGI)

New Delhi August 01, 2019

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