IN THE HIGH COURT OF JAMMU & KASHMIR AND

LADAKH AT JAMMU

SWP No. 1207/2013

Reserved on: 16.05.2024

Pronounced on: 24.05.2024

Prem Pal Singh Ex. Driver No. 930920695, CRPF son of Sh. Sohanpal

Singh age 38 years resident of village Nagla Kanshi Post Office Samana

District Panchsheel Nagar UP.

…Petitioner

Through: - Mr. A.K.Sharma Advocate with

Mr. S.M.Wajahat Advocate.

Vs.

1 UOI through Home Secretary Ministry of Home Government of India

New Delhi

2. Director General, CRPF New Delhi

3. Inspector General CRPF, Bihar Sector Patna

4. Deputy Inspector General CRPF Group Center Muzaffarpur Bihar

5. Commandant 116 Bn. CRPF care of 56 APO.

…Respondents

Through: - Mr. Vishal Sharma DSGI

CORAM: HON’BLE MR. JUSTICE SANJAY DHAR , JUDGE

JUDGMENT

1 The petitioner has challenged order dated 02.04.2012 issued

by respondent No.5/Commandant, 116 Bn. CRPF whereby he has been

dismissed from service. Challenge has also been thrown to order dated

18.09.2012 issued by respondent No.4 whereby the appeal of the

petitioner against order dated 02.04.2012 (supra) has been dismissed. The

petitioner has further challenged order dated 27.02.2013 issued by

respondent No.3 whereby the revision petition against order dated

02.04.2018 (supra) has been dismissed.

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2 The facts, emerging from the pleadings of the parties, are that

the petitioner was appointed as Constable in Central Reserve Police Force

(for short ‘CRPF’) on 28.09.1993. He was transferred to 133 Bn. on

15.06.1994 and after qualifying driver’s course, he continued to serve with

CRPF as Constable Driver. According to the petitioner, on 11.04.2011, he

was assigned the duty of getting the keys of a Treasury/Safe prepared from

Ware House, Nehru Market, Jammu and, accordingly, he proceeded in the

Bus bearing No. MH 31-7338 to the said place and he was accompanied

by Havaldar G.D. Baban Kakoti of 116 Bn. CRPF. After getting the task

accomplished, while he was driving out the Bus from Ware House, Nehru

Market, Jammu, the said Bus was intercepted by the local police. This was

done pursuant to registration of FIR No. 68/2011 for offences under

Sections 409/411 RPC on the basis of the allegations that the petitioner

was involved in selling of fuel to the civilians. After investigation of the

case, the charge-sheet was laid before the Court of learned CJM, Jammu

wherein the petitioner was arrayed as accused No.2. Vide order dated

21.11.2011 the learned CJM discharged the petitioner and dismissed the

challan as against him. The State preferred a revision petition against the

order of the CJM, but without any success and the revision petition was

dismissed by the learned Principal Sessions Judge, Jammu on 26.03.2012.

3 It has been averred by the petitioner that on the identical

charge of selling fuel of Bus bearing registration No. MH31-7338 to

civilians in Ware House area of Jammu city on 11.04.2011, a departmental

enquiry was initiated against him. After culmination of the departmental

proceedings, charge against the petitioner was stated to have been

established and, accordingly, the impugned order dated 02.04.2012 came

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to be passed by respondent No.5. The appeal filed by the petitioner against

the said order was dismissed by respondent No.4 vide impugned order

dated 18.09.2012 and the revision petition filed by the petitioner was

dismissed by respondent No.3 in terms of impugned order dated

27.02.2013.

4 The petitioner has challenged the impugned orders on the

ground that the respondents have not adhered to the provisions contained

in Rule 27 (2)(ccc) of the Central Reserve Police Force Rules, 1955

(‘Rules of 1955’ for short) which provides that without prior sanction of

Inspector General, a member of the Force cannot be punished

departmentally in case he is acquitted by a criminal Court on a similar

charge. It has been contended that the petitioner has not committed any

misconduct warranting his dismissal from service and that the finding of

the Inquiry Officer in this regard is based on no evidence. It has been

further contended that the petitioner has been condemned unheard and that

the Inquiry Officer has ignored the order of discharge passed by the

learned CJM, Jammu.

5 The respondents have contested the writ petition by filing a

reply thereto. In their reply, the facts narrated in the writ petition have

been admitted by the respondents. However, it has been contended that

acquittal of petition in criminal proceedings does not, ipso facto, amount

to his exoneration from the departmental proceedings. It has been

submitted that though the petitioner has been acquitted of the charges of

selling fuel, but his act has tarnished the image of CRPF for which he has

been appropriately dealt with departmentally. It has been further

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submitted that the petitioner has been dismissed from service after holding

a proper inquiry and after giving him opportunity of hearing and leading

evidence in defence. It has also been submitted that arrest of the petitioner

by police for selling fuel to civilians in itself is a serious charge which has

been proved during the inquiry and, as such, he deserved to be dismissed

from service.

6 I have heard learned counsel for the parties and perused the

record of the case.

7 As already stated, so far as the factual aspects of the matter

are concerned, the same are not in dispute. The question, that is required

to be determined in this case, is whether discharge of the petitioner by a

criminal Court in respect of a charge, which was also the subject matter

of determination in the departmental proceedings, would vitiate the

impugned order of dismissal of the petitioner from service. In this regard,

we need to have a look at the allegations made in the charge-sheet against

the petitioner and the allegations made against him in the articles of charge

framed against him in the departmental proceedings.

8 In the criminal case, the case set up by the prosecution was

that on 11.04.2011,the police received an information from reliable

sources that drivers of vehicles belonging to police department and CRPF

indulged in misappropriation of fuel issued to them for use in their official

vehicles and that these drivers sell the said misappropriated fuel to the

civilians. On receiving this information, the police swung into action,

registered FIR No. 68/2011 for offences under Sections 409/411 RPC and

intercepted, inter alia, the vehicle that was being driven by the petitioner

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and it was found that he was selling diesel to accused No.3 in the charge-

sheet. Thus, the allegation against the petitioner in the charge-sheet has

that he was misappropriating the fuel that was issued in favour of Bus

bearing No. MH31-7338 which was in charge of the petitioner and selling

the same to civilians.

9 If we have a look at the articles of charge framed against the

petitioner in the departmental proceedings, it is alleged therein that on

09.04.2011, the petitioner was detailed for official duty and given charge

of vehicle bearing No. MH31-7338 for taking it to Jammu, but on

11.04.2011 at about 1120 hours, he was caught by police of Police Post,

Ware House, Jammu selling fuel to certain civilians, where-after, he was

arrested and taken into custody by the police. It was also alleged that this

occurrence was covered by media with photographs, as a result of which,

adverse impact was caused to the reputation of CRPF..

10 From the narration of the allegations made in the charge-

sheet and the allegations made in the articles of charge framed in the

departmental proceedings, it is clear that genesis of both the proceedings

is the alleged misappropriation of fuel by the petitioner and its sale to

civilians. So, there can be no doubt to the fact that the allegations made in

the two proceedings viz the criminal proceedings and the departmental

proceedings in the instant case are identical except that in the departmental

proceedings, it has been alleged that arrest of the petitioner, which was

covered by the media, has caused adverse impact to the image of CRPF.

However, the fact of the matter remains that the basis of even these

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allegations is the selling of fuel of official vehicle by the petitioner to the

civilians.

11 The learned CJM, Jammu, while considering the case for

framing of charge against the petitioner, has concluded that there is no

evidence collected by the Investigating Agency that would become a

basis for proceeding against the petitioner and, accordingly, he has been

discharged vide order dated 21.11.2011 passed by the CJM. In this regard,

the conclusion arrived at by the learned CJM is reproduced as under:

“Once the figures regarding the balance of fuel available in

the fuel tank, as shown by the issuing authorities in their

records and that which was removed by the investigating

officer from the fuel tanks of the vehicles at the time of

occurrence only works out to be equal, in the opinion of this

court, prima facie the accused No.1 and 2 cannot be held

liable for the commission of offence of criminal breach of

trust for there is no reason to disbelieve the authenticity of

the record submitted by the authorities responsible for

issuing fuel to the said accused persons. The record (supra),

as already noticed, has been made part of the charge sheet

by the Investigating officer himself. Moreover, there is no

direct evidence regarding the sale of fuel to the accused No.3

by accused No.1 and 2. Any element of suspicion against the

accused persons on the basis of the attending circumstances

like recovery of diesel in plastic cans and barrels, the pipes

etc. and presence of the accused No.3 on spot at the time of

occurrence just pales into insignificance in view of the

record submitted by the authorities responsible for issuing

fuel to the accused No.1 and 2 which, as already noticed,

totally matched with the balance fuel that was recovered from

the fuel tanks by the authorities of police”

12 From the foregoing observations of learned CJM, it is clear

that the quantity of fuel issued for the vehicle that was in charge of the

petitioner, after taking into account the distance that was covered by the

said vehicle, matches with the quantity of fuel that was actually found in

tank of the vehicle meaning thereby that there was no shortfall of fuel and,

as such, nothing was misappropriated by the petitioner. The learned CJM

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has also concluded that merely because two Jerry Cans filled with fuel

were found in the Bus in question does not mean that the petitioner was

indulging in sale of fuel, particularly when there was no evidence that he

had sold the same to accused No.3. The said order of the learned CJM has

been upheld by the learned Principal Sessions Judge, Jammu in the

revision petition filed by the State.

13 That takes us to the findings recorded by the Inquiry Officer

during the departmental proceedings. The Inquiry Officer, after recording

the statements of witnesses, concluded that because two Jerry cans of fuel

were found inside the Bus, that was being driven by the petitioner, it is

established that the petitioner was indulging in sale of fuel to the civilians.

14. It is a settled law that this Court, in exercise of its writ

jurisdiction, cannot go into the sufficiency of evidence on the basis of

which the Inquiry Officer has given his findings, yet, it is open to this

Court to interfere in the findings of the Inquiry Officer if the same are

based upon no evidence or if the said findings are based upon irrelevant

material. With this position of law in mind, let us now advert to the case

at hand.

15 The only evidence before the Inquiry Officer for concluding that

two Jerry Cans of fuel were found inside the bus that was being driven by

him is the statement of Baban Katia. Merely because two Jerry cans of

fuel were found inside the Bus does not mean that the petitioner indulged

in sale of fuel, particularly when no shortfall of fuel was found in tank of

the vehicle. There was no evidence on record before the Inquiry Officer

to show that the petitioner had either expressed his intention to sell the

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fuel to anyone or that he was found conversing with any civilian for

striking a deal. In fact, a perusal of the statement of Baban Katia recorded

during the departmental proceedings reveals that he has clearly stated that

the petitioner never withdrew any fuel from tank of the Bus, nor did he

put it in Jerry Can. He further clarified that the petitioner did not enter into

conversation with any civilian with regard to the sale of fuel. This part of

the statement of Baban Katia, the person who was accompanying the

petitioner at the relevant time, has been totally ignored by the Inquiry

Officer, as a result of which, he has landed into error in arriving at the

conclusion that the petitioner was found indulging in sale of fuel just

because two Jerry Cans of fuel were found inside the Bus.

16 Further the Inquiry Officer has totally ignored the order of

learned CJM whereby the petitioner has been discharged and exonerated

in connection with similar allegations. Although, in his report the Inquiry

Officer has taken note of the order of learned CJM, yet he has neither

discussed it nor has he assigned any reason for taking a different view.

Thus, it is a case of non-consideration of the relevant material by the

enquiry officer, as such, this Court does have jurisdiction to interfere in

the findings recorded by the Inquiry Officer which, on the face of it,

appear to be perverse.

17 It is true that from the evidence led before the Inquiry

Officer, it is established that the petitioner was arrested from spot and the

media persons covered the event, but for this ,the petitioner cannot be held

responsible. He has been exonerated by the criminal Court and in fact, the

case lodged against the petitioner by the police could not even proceed to

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the stage of trial, meaning thereby that the case against the petitioner was

based on no material. In spite of this state of affairs, if the petitioner was

arrested and it made a big news in the media, he cannot be blamed for it,

nor can he be made a scapegoat for an act for which either the police or

the media is to be blamed. The conclusion of the Inquiry Officer in this

regard is devoid of any logic and reasoning and, as such, cannot be

sustained in law.

18 It has been argued by learned counsel appearing for the

respondents that mere discharge by a criminal Court will not debar the

respondents from holding departmental inquiry against the petitioner and

inflict punishment upon him.

19 There cannot be any dispute to the legal proposition that mere

acquittal by a criminal Court will not confer on an employee a right to

claim any benefit including reinstatement. However, if the charges in the

departmental inquiry and the criminal Court are identical or similar, then

the matter acquires a different dimension. This aspect has been dealt with

by the Supreme Court in a recent case of Ram Lal vs State of Rajasthan

and others, (Civil Appeal No. 7935 of 2023 arising out of SLP (C) No.

33423 of 2018) wherein the Supreme Court after examining the legal

position, observed as under:

“12 We are also conscious of the fact that mere acquittal

by a criminal court will not confer on the employee a right to

claim any benefit, including reinstatement. (See Deputy

Inspector General of Police and Another v. S. Samuthiram,

(2013) 1 SCC 598).

13. However, if the charges in the departmental enquiry and

the criminal court are identical or similar, and if the

evidence, witnesses and circumstances are one and the same,

then the matter acquires a different dimension. If the court in

judicial review concludes that the acquittal in the criminal

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proceeding was after full consideration of the prosecution

evidence and that the prosecution miserably failed to prove

the charge, the Court in judicial review can grant redress in

certain circumstances.

The court will be entitled to exercise its discretion and grant

relief, if it concludes that allowing the findings in the

disciplinary proceedings to stand will be unjust, unfair and

oppressive. Each case will turn on its own facts. [See G.M.

Tank vs. State of Gujarat & Others, (2006) 5 SCC 446, State

Bank of Hyderabad vs. P. Kata Rao, (2008) 15 SCC 657 and

S. Samuthiram (supra)]”

From the above, it is clear that if it is found that acquittal in

the criminal proceedings was after full consideration of the prosecution

evidence and that the prosecution miserably failed to prove the charge, it

would be open to the Court to exercise its power of judicial review and

interfere in the findings of the disciplinary inquiry.

20 In the instant case, as already stated, the charges in the

criminal case and the departmental proceedings are similar in nature. The

departmental proceedings, as is clear from the record, are primarily based

upon the material collected by the police during investigation of the case.

The police case against the petitioner, as already stated, has been thrown

out by the criminal Court. at the charge stage itself, not on technical

grounds, but after considering the material collected by the Investigating

Agency. Therefore, in the peculiar circumstances of the instant case, it

would be open to this Court to interfere in the findings of the disciplinary

proceedings which, as already stated, are perverse and deserve to be set

aside.

21 Apart from the above, it appears that the respondents have

not adhered to the provisions contained in Rule 27 (2)(ccc) of Rules of

1955 which provides that when a member of the Force has been tried and

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acquitted by a Criminal Court, he shall not be punished departmentally on

the same charge or on a similar charge upon the evidence cited in the

criminal case, whether actually led or not, except with the prior sanction

of the Inspector General which means that once a member of the Force

has been tried and acquitted by a criminal Court, he cannot be punished

departmentally for the same charge without the prior sanction of the

Inspector General.

22 As already noted, in the instant case, the allegations which

formed the basis of criminal prosecution and the allegations which formed

the basis of departmental proceedings against the petitioner are similar in

nature. The petitioner has been discharged by the criminal Court, but the

respondents have proceeded departmentally against the petitioner on the

same charge without seeking sanction of the Inspector General.

23 Learned counsel for the respondents has argued that

sub-clause (ccc) of Rule 27(2) of the Rules of 1955 uses the expression

“tried and acquitted” and, therefore, if an accused is discharged by a

criminal Court, the provisions contained in the said sub-clause would not

get attracted.

24 Technically, the learned counsel for the respondents may be

right in arguing so, but when we closely have a look at the provisions

contained in the sub-clause (cce) of Rule 27 (2) of the Rules of 1955, it

conveys that if a Criminal Court has tried and acquitted a member of the

Force in respect of a charge, whether any evidence has been led or not, he

cannot be departmentally punished without the sanction of the Inspector

General. This means that the aforesaid sub clause would get attracted to a

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case where a member of the Force has been exonerated of the allegations

even without leading of evidence in support of the charges in a criminal

case. Thus, even a case of discharge from criminal charges on a ground

other than technical ground would be covered under aforesaid sub clause.

In the instant case, the petitioner may not have been tried by the criminal

Court, but he has certainly been discharged and exonerated of criminal

charges so his case stands at the higher pedestal than acquittal, particularly

when the petitioner has been discharged on merits and not on

technicalities.

25 Thus, once it was found by the Criminal Court that the case

against the petitioner is so weak that it cannot even proceed to the stage

of trial, this Court is of the opinion that it was incumbent upon the

respondents to seek the sanction of Inspector General before proceeding

against the petitioner on same charge departmentally which, in the instant

case, has not been done. On this ground also, the impugned orders passed

by the respondents deserve to be set aside.

26 Once it is held that the findings of the departmental

proceedings are not sustainable in law, the impugned order of dismissal

of petitioner from service also becomes unsustainable in law and, as such,

the same deserves to be set aside. The next question that requires to be

determined is as to whether the petitioner would be entitled to back wages

for the period he has remained out of service. In this regard, it is to be

noted that the consistent view of the Supreme Court has been that

ordinarily, an employee whose services are terminated and who is

desirous of getting back wages is required to either plead or at least make

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a statement before the Court that he was not gainfully employed or was

employed on lesser wages. Reference in this regard is made to a judgment

of the Supreme Court in the case of National Gandhi Museum vs Sudhir

Sharma, (2021) 12 SCC 439, in which it was held that the fact whether

an employee after dismissal was gainfully employed is something within

his special knowledge. A similar view has been taken by the Supreme

Court in the case of Allahabad Bank vs Avtar Bhushan Bhartiya,

2022 LiveLaw SC 405. In the said case, the Supreme Court noticed the

propositions laid down by it in the case of Deepali Gundu Surwase vs.

Kranti Junior Adhyapak Mahavidyalaya & Ors(2013)10 SCC 324

which are reproduced as under:

“31. The propositions which can be culled out from the

aforementioned judgments are:

(i) In cases of wrongful termination of service,

reinstatement with continuity of service and back wages is

the normal rule.

(ii) The aforesaid rule is subject to the rider that while

deciding the issue of back wages, the adjudicating

authority or the Court may take into consideration the

length of service of the employee/workman, the nature of

misconduct, if any, found proved against the

employee/workman, the financial condition of the

employer and similar other factors.

(iii) Ordinarily, an employee or workman whose services

are terminated and who is desirous of getting back wages

is required to either plead or at least make a statement

before the adjudicating authority or the Court of first

instance that he/she was not gainfully employed or was

employed on lesser wages. If the employer wants to avoid

payment of full back wages, then it has to plead and also

lead cogent evidence to prove that the employee/workman

was gainfully employed and was getting wages equal to the

wages he/she was drawing prior to the termination of

service. This is so because it is settled law that the burden

of proof of the existence of a particular fact lies on the

person who makes a positive averments about its

existence. It is always easier to prove a positive fact than

to prove a negative fact. Therefore, once the employee

shows that he was not employed, the onus lies on the

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employer to specifically plead and prove that the employee

was gainfully employed and was getting the same or

substantially similar emoluments.

(iv) The cases in which the Labour Court/Industrial

Tribunal exercises power under Section 11-A of the

Industrial Disputes Act, 1947 and finds that even though

the enquiry held against the employee/workman is

consistent with the rules of natural justice and / or certified

standing orders, if any, but holds that the punishment was

disproportionate to the misconduct found proved, then it

will have the discretion not to award full back wages.

However, if the Labour Court/Industrial Tribunal finds

that the employee or workman is not at all guilty of any

misconduct or that the employer had foisted a false charge,

then there will be ample justification for award of full back

wages.

(v) The cases in which the competent Court or Tribunal

finds that the employer has acted in gross violation of the

statutory provisions and/or the principles of natural

justice or is guilty of victimizing the employee or workman,

then the concerned Court or Tribunal will be fully justified

in directing payment of full back wages. In such cases, the

superior Courts should not exercise power under Article

226 or 136 of the Constitution and interfere with the award

passed by the Labour Court, etc., merely because there is

a possibility of forming a different opinion on the

entitlement of the employee/workman to get full back

wages or the employer’s obligation to pay the same. The

Courts must always be kept in view that in the cases of

wrongful / illegal termination of service, the wrongdoer is

the employer and sufferer is the employee/workman and

there is no justification to give premium to the employer of

his wrongdoings by relieving him of the burden to pay to

the employee/workman his dues in the form of full back

wages.

(vi) In a number of cases, the superior Courts have

interfered with the award of the primary adjudicatory

authority on the premise that finalization of litigation has

taken long time ignoring that in majority of cases the

parties are not responsible for such delays. Lack of

infrastructure and manpower is the principal cause for

delay in the disposal of cases. For this the litigants cannot

be blamed or penalised. It would amount to grave injustice

to an employee or workman if he is denied back wages

simply because there is long lapse of time between the

termination of his service and finality given to the order of

reinstatement. The Courts should bear in mind that in most

of these cases, the employer is in an advantageous position

vis-à-vis the employee or workman. He can avail the

services of best legal brain for prolonging the agony of the

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sufferer, i.e., the employee or workman, who can ill afford

the luxury of spending money on a lawyer with certain

amount of fame.

Therefore, in such cases it would be prudent to adopt the

course suggested in Hindustan Tin Works Private Limited

v. Employees of Hindustan Tin Works Private

Limited (supra).

(vii) The observation made in J.K. Synthetics Ltd. v. K.P.

Agrawal (supra) that on reinstatement the

employee/workman cannot claim continuity of service as

of right is contrary to the ratio of the judgments of three

Judge Benches referred to hereinabove and cannot be

treated as good law. This part of the judgment is also

against the very concept of reinstatement of an

employee/workman”.

27 From the going analysis of law on the subject, it is clear that

even if an employee has succeeded in establishing that his dismissal from

service is illegal, he may be entitled to reinstatement, but it is not

necessary that he should be given full back wages. For entitling such an

employee to full back wages, he has to show that he was not gainfully

employed after dismissal of his service. This can be shown by

incorporating pleadings in the writ petition in this regard.

28. In the instant case, the petitioner has not pleaded anywhere

that he was not gainfully employed after his dismissal from service. Even

the respondents have not submitted anything on this aspect of the matter

in their reply. In these circumstances, the petitioner may not be entitled to

full back wages. In addition to this, it is not a case where the respondents

have foisted a false charge upon the petitioner but it is a case where due

to registration of criminal case against the petitioner by the police, the

respondents had no alternative but to initiate departmental proceedings

against him. Therefore, in the facts and circumstances of the case the

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relief of back wages in favour of the petitioner deserves to be restricted to

50%.

29 In view of what has been discussed hereinbefore, the writ

petition is allowed and the impugned order whereby the services of the

petitioner have been terminated is set aside. He is directed to be reinstated

with all consequential benefits with a rider that he shall be entitled to only

50% of the back wages. The respondents shall implement this judgment

within a period of three (03) months from today.

The record of Inquiry be returned to learned counsel for the

respondents.

(Sanjay Dhar)

Judge

JAMMU

24.05.2024

“Sanjeev ’ Whether order is reportable: Yes

Mohammad Altaf Bhat

I attest to the accuracy and

authenticity of this document

24.05.2024 18:15