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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 10729 OF 2013

(@ Special Leave Petition (Civil) No.29808 of 2010)

State of West Bengal & Ors. … Appellants

Versus

Sankar Ghosh … Respondent

J U D G M E N T

K.S. Radhakrishnan, J.

1.Leave granted.

2.We are, in this case, concerned with the question

whether the respondent, who was dismissed from service

following disciplinary proceedings, is liable to be

reinstated on acquittal by a criminal court on the ground

of identity of charges in the departmental as well as

criminal proceedings.

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3.The respondent was working as a Sepoy in the 2

nd

Battalion of the Kolkata Armed Police. At the time of the

incident, he was working as a Sepoy on deputation in the

Traffic Department of Kolkata Police. He was arrested by

the police in connection with Khardah P.S. Case No.383

dated 12.11.2013 and charged for the offences under

Sections 392, 395 and 412 of the Indian Penal Code read

with Sections 25 and 27 of the Arms Act for his complicity

in the commission of a dacoity using a motor cycle bearing

Registration No.WB-24/F-3050. On his arrest, he was

produced before the Sub-Divisional Magistrate,

Barrackpore, and he was remanded to police custody till

28.11.2003 and then to judicial custody till 30.3.2004.

Later, he was released on 1.4.2004. The department

placed the respondent under suspension w.e.f. 26.11.2003

and was later served with a charge sheet on 1.6.2004.

The operative portion of the charge sheet reads as

follows :-

“You Sepoy 14610 Sankar Ghosh of 2

nd

Bn.,

K.A.P. working on deputation to Traffic

Department, Kolkata Police, presently under

suspension w.e.f. 26.11.2003 F.N. are charged

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with gross misconduct unbecoming of a

member of the Kolkata Police Force in that :-

1)You were arrested on 26.11.2003 by

Khardah P.S. for your direct complicity in

commission of dacoity vide Khardah P.S. Case

No.383 dated 12.11.2003 u/S. 392 IPC adding

Section 395/412 CPC and 25/27 Arms Act by

using a motor cycle T.V.S. Victor Blue coloured

bearing Regd No.24F/3050

2)You were produced before the Ld. SDJM

Barrackpore on the same day (2611.03) and

resumed P.C. till 28.11.2003 and then to J.C. till

30.3.2004. You were released from Dum Dum

Central Jail on 1.4.2004.

3)It appears from the record that you have

no stay out permission from the competent

authority and you were involved in the criminal

case in the jurisdiction of Khardah P.S. and also

arrested from outside the Kolkata Police

jurisdiction.

4)You being a member of the disciplined

force, your involved in such type of heinous

crime tarnished the image/prestige of the

Kolkata Police force in the estimation of the

members of the public in large.

You are hereby directed to state whether

you plead guilty to the charges or want an open

enquiry into the matter. Your written reply

should reach within 7 (seven) days of the

receipt of this charge.

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Deputy Commission of Police

Traffic Department, Kolkata.”

4.The respondent replied to the charge sheet and a

detailed enquiry was conducted by the Enquiry Officer.

On conclusion of the enquiry, the Enquiry Officer after

perusing the materials on record and after hearing the

parties drew up his report on the enquiry on 10.11.2004.

The Enquiry Officer found the respondent guilty of the

charges levelled against him. The Disciplinary Authority,

after considering the Enquiry Report as well as after

hearing the respondent, concurred with the views

expressed by the Enquiry Officer and ultimately decided

to impose the penalty of dismissal from service. The

respondent was, therefore, served with the notice to show

cause as to why he should not be dismissed from service.

A detailed reply was submitted by the respondent. After

considering the reply, the Disciplinary Authority dismissed

the respondent from the Police Force w.e.f. 27.12.2004.

The respondent then filed an appeal before the Appellate

Authority.

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5.The Appellate Authority gave a personal hearing to

the respondent on 28.2.2005. The Appellate Authority

after having noticed that the order of dismissal was not

passed by the appropriate authority, set aside the order

and left it to the appropriate authority to pass appropriate

orders based on the Enquiry Report. The Deputy

Commission of Police, 2

nd

Battalion, Kolkata Armed Police,

who is the competent authority, after considering the

entire matter passed a final order dismissing the

respondent from service w.e.f. 2.6.2005. Against the said

order, the respondent filed an appeal before the Appellate

Authority i.e. the Joint Commissioner of Police (A.P.),

Kolkata Police. The Appellate Authority after considering

the entire matter, rejected the appeal vide its order dated

25.8.2005.

6.The Additional Sessions Judge, Barrackpore, who was

trying the criminal case levelled against the respondent

and five other accused persons for committing the offence

under 395/412 IPC read with Section 25(1)(a)/27/35 of the

Arms Act, in the meanwhile found that the charges

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levelled against the accused persons including the

respondent were not found proved and consequently vide

judgment dated 7.12.2007 acquitted all the accused

persons. The respondent on his acquittal in the criminal

case filed O.A. No.3961 of 2008 before the West Bengal

Administrative Tribunal. The Tribunal after perusing the

judgment of the Sessions Court acquitting the respondent

and others took the view that the said judgment should

have a bearing on the decision of the Enquiry Officer

regarding disciplinary proceedings. Holding so, the

appeal was disposed of with a direction to the Disciplinary

Authority to reinstate the respondent in view of the

acquittal order passed by the Sessions Court in the

criminal case.

7.Aggrieved by the said order, the State of West

Bengal along with two others, filed W.P.S.T. No.570 of

2009 before the Calcutta High Court. The High Court

dismissed the appeal upholding the order of the Tribunal,

against which this appeal has been preferred.

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8.Mr. Kalyan Bandopadhyay, learned Senior Advocate,

appearing for the State of West Bengal submitted that the

Tribunal and the High Court have committed an error in

directing reinstatement of the respondent in service

considering the mere fact that the respondent along with

others was acquitted by the Criminal Court. Learned

senior counsel submitted that the respondent was not

honourably acquitted by the Criminal Court. The

acquittal was by way of giving benefit of doubt since the

accused persons could not be identified during the T.I.

parade. Further, it was also pointed out that the High

Court has not properly appreciated Regulation 4 of

Chapter 19 of the Police Regulations of Calcutta, 1968,

which was applicable to the respondent.

9.Mr. Nikhil Goel, learned counsel appearing for the

respondent, submitted that the Tribunal and the High

Court have correctly applied the ratio laid down by this

Court in Capt. M. Paul Anthony v. Bharat Gold Mines

Ltd. & Anr. [(1993) 3 SCC 679], Sulekh Chand & Salek

Chand v. Commissioner of Police & Ors. [1994 Supp.

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(3) SCC 674] and G.M. Tank v. State of Gujarat & Ors.

[(2006) 5 SCC 446] and ordered reinstatement of the

respondent. Learned counsel also submitted that since

the accused persons could not be identified in the TI

Parade, their complicity could not be established.

Consequently, the acquittal of the respondent was an

honourable acquittal. Going by the various judicial

precedents laid down by this Court, learned counsel

submitted that the respondent was rightly reinstated in

service and the order passed by the Tribunal as well as

the High Court calls for no interference.

10.We may, at the very outset, point out that the

respondent was a member of the disciplined force. He

was working as a Sepoy in the 2

nd

Battalion of the Kolkata

Armed Force and at the relevant point of time he was

working as Sepoy on deputation with the traffic

department of Kolkata Police. It is true that the

respondent was dismissed from service due to his

involvement in the criminal case, wherein he was charged

with the offences under Sections 395/412 IPC and

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Sections 25/27 of the Arms Act. It is also the stand of the

department that being a member of the disciplined force,

his involvement in such a heinous crime tarnished the

image/prestige of the Kolkata Police Force in the

estimation of the members of public in general. Before

the Enquiry Officer from the side of the department, four

witnesses were examined, including Jiban Chakraborty,

the S.I. Police. Exh. A-3 to A-12 are the documents

produced before the Enquiry Officer. PW3, S.I. Jiban

Chakraborty, the Inspector of Police before the Enquiry

Officer deposed as follows :

“During investigation he arrested some

suspects into this case. In pursuance to the

statement of the suspects he arrested the C.O.

from his residence situated in 389, Milangarh,

Natagarh under P.S. Ghosla (24 Pgs.-N) on

26.11.03 at 01.05 hrs. He prepared the arrest

memo (Exhibit No.A5). He conducted in search

at this residence and recovered a sum of

Rs.10,000/- from his possession being the stolen

recovered money of the said case. He also

recovered the motor cycle bearing No.WB24F-

3050 from his house. During investigation he

also recovered one private car. He stated that

both the motor cycle and the private car were

used during the commission of the crime.

During investigation he came to know that the

O.C. is a Constable of Kolkata Police posted to

2

nd

Bn of Kolkata Police working on deputation

traffic deptt. The C.O. was produced before the

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Ld. Court of SDJM, Barrackpore and was

remanded to P.O. till 29.11.03 on further

production, the C.O. was remanded to jail

custody and enlarged on Bail on 30.3.04. After

completion of investigation he submitted

charge-sheet against the C.O. & others u/s

395/412 CPC, 25/27/35 Arms Act

During cross examination, the P.W. stated that

he seized motor cycle was registered in the

name of Sri Swapan Ghosh and the same was

seized from the possession of Swapan Ghosh.

During cross examination the P.W. stated that it

is not a fact that the C.O. has no complicity into

the case. After thorough investigation &

enquiry prima facie charge established against

the C.O. and others.

11.The Enquiry Officer believed the evidence of PW3

and concluded that the charges levelled against the

respondent were proved beyond any shadow of doubt,

except the charge that the respondent stayed out without

permission. PW3 had categorically stated that he

conducted a search at the residence of the respondent

and recovered a sum of Rs.10,000/- from his possession

being the stolen money. He had also recovered the motor

cycle bearing No.WB24F-3050 from the respondent’s

house which was used for the commission of the crime.

During the investigation, he had also recovered one

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private car from the respondent’s residence. Investigation

revealed that both the motor cycle and the private car

were used during the commission of the crime.

12.We have gone through the judgment of the Sessions

Court. Sessions Court though acquitted the accused

persons including the respondent, concluded as follows :-

“While there are vital evidence on the record

regarding recovery of money, recovery of

firearm, recovery of unused writing pad of Dr.

R.P. Mitra, but the most vital missing link is the

identification made by him in the TI Parade but

because of the time lag between the date of

incident and the date of TI Parade and the date

of his statement u/s 164 Cr.P.C. (1.12.03) and

the further time lag of about six days for the TI

Parade on 6.12.03 does not convince my mind

to accept such evidence relating to identity of

the accused persons during the trial could not

be bridged by the prosecution through any

evidence. The prosecution, therefore, fails as

the identity of the accused persons has not

been established before the Court during the

trial.”

13.We, therefore, notice that both the Disciplinary

Authority as well as the Sessions Court were of the view

that there are vital evidence on record regarding recovery

of money, fire arms and recovery of unused writing pad of

Dr. R.P. Mitra, PW3, the SI deposed further that the

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money was recovered from the house of the respondent

so also the motor bike as well as the car. The Sessions

Court, however, had to acquit the respondent since Dr.

R.P. Mitra could not identify him during the TI Parade. On

going through the judgment of the Sessions Court, it

cannot be said that the respondent was honourably

acquitted.

14.In Deputy Inspector General v. S. Samuthiram

[(2013) 1 SCC 598], this Court in paragraph 24, 25 and 26

of the judgment has elaborately examined the meaning

and scope of the “honourable acquittal” and held as

follows :-

“26. As we have already indicated, in the

absence of any provision in the service rules 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

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guilt in a criminal court is not required in a

disciplinary proceedings and preponderance 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 that 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.”

15.The judgment of S. Samuthiram (supra) was later

followed by another Bench of this Court in Commissioner

of Police, New Delhi & Anr. V. Mehar Singh [(2013) 7

SCC 685].

16.We indicate that the respondent could not lay his

hand to any rule or regulation applicable to the Police

Force stating that once an employee has been acquitted

by a Criminal Court, as a matter of right, he should be

reinstated in service, despite all the disciplinary

proceedings. In otherwise there is no rule of automatic

reinstatement on acquittal by a Criminal Court even

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though the charges levelled against the delinquent before

the Enquiry Officer as well as the Criminal Court are the

same. On this aspect, reference may be made to para 27

of the judgment in S. Samuthiram (supra), which reads

as under:-

“27. 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

reinstatement is automatic. There may be cases

where the service rules provide that 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.”

17.Regulation 4 of Chapter 19 of the Police Regulations

of Calcutta, 1968, which is applicable to the case in hand,

specifically provides that acquittal or discharge in a

criminal proceeding shall not be a bar to award

punishment in a departmental proceeding in respect of

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the same cause or matter. The said Regulation is

extracted below for easy reference :

“4.Discharge or acquittal not a bar to

departmental punishment. – An order of

discharge or acquittal of a Police Officer shall

not be a bar to the award of departmental

punishment to that officer in respect of the

same cause or matter.”

18.Above rule indicates that even if there is identity of

charges levelled against the respondent before the

Criminal Court as well as before the Enquiry Officer, an

order of discharge or acquittal of a police officer by a

Criminal Court shall not be a bar to the award of the

departmental punishment. The Tribunal as well as the

High Court have not considered the above-mentioned

provision and have committed a mistake in holding that

since the respondent was acquitted by a Criminal Court of

the same charges, reinstatement was automatic. We find

it difficult to support the finding recorded by the Tribunal

which was confirmed by the High Court. We, therefore,

allow the appeal and set aside the order of the Tribunal,

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which was affirmed by the High Court. However, there

will be no order as to costs.

…..………………………J.

(K.S. Radhakrishnan)

………………………….J.

(A.K. Sikri)

New Delhi,

November 28, 2013.