# Indra Kumar Ex Constable v. U.O.I

- **Citation:** (2023) 4 ILRA 1022
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-04-17
- **Case number:** Writ A No. 6787 of 2012
- **Bench:** Karunesh Singh Pawar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/indra-kumar-ex-constable-v-u-o-i-49787
- **Pages:** 10

## Headnote

A. Service Law - Disciplinary proceedings
- C.R.P.F. Rules, 1995 - Rule 27(A),
Section 27 (ccc) - Central Civil Services
(Classification, Control and Appeal) Rules,
1964
-
Rule
10(2)
-
Whenever,
a
disciplinary authority is in disagreement
with the recommendation of the Inquiry
Officer
and
proposes
to
pass
a
punishment/major
punishment,
he
is
bound to assign the reasons for such
disagreement and is also required to give
a show cause notice to the petitioner
indicating such reasons so that the
delinquent employee can have a proper
opportunity to defend himself. (Para 16)

The disciplinary authority while proceeding
against the petitioner has considered the inquiry
report however, has disagreed with such inquiry
report and proceeded to pass major punishment
of removal against the petitioner however, while
disagreeing with the Inquiry Officer, the
authority has not given a show cause notice to
the petitioner which he was entitled under law.
(Para 16)

B. C.R.P.F. Rules, 1995 - Section 27 (ccc) -
When a member of the force has been
tried and acquitted by a criminal court, he
shall not be punished departmentally
under this rule on the same charge or on
the similar charge upon the evidence cited
in the criminal case, whether actually led
or not except with the prior sanction of
the Inspector General.

The Inquiry Officer vide inquiry report dated
23.06.2011 has found charge No. 1 proved in
view of the admission made by the petitioner
however, charge No. 2 was not found by him to
be proved.

In this case admittedly, the petitioner was being
tried for more or less the same charges (i.e.
charge No. 2) before the criminal court
therefore, in view of the express provision of the
Act, the disciplinary authority could not have
proceeded against the petitioner except with the
prior sanction of the Inspector General. (Para
16)

C.
When
there
was
an
honourable
acquittal of the employee during the
pendency of the proceedings challenging
4 All. Indra Kumar Ex Constable Vs. U.O.I.
1023
the dismissal, the same requires to be
taken note of. (Para 17)

In present case, the petitioner was acquitted by
the judgment and order dated 21.02.2012. A
perusal of the said judgment shows that the
acquittal order was passed on the ground that
the prosecution has failed to prove its charge
and thus, it is honorable acquittal, no benefit of
doubt was given to the petitioner and therefore,
the mandate u/s 27 (ccc) of the Rules, 1955
ought to have been followed by the authority
while passing the removal order. (Para 17)

Writ petition allowed. The impugned
orders are set aside. The matter is
remanded
back
to
the
disciplinary
authority. (E-4)

Precedent followed:

## Text

1022 INDIAN LAW REPORTS ALLAHABAD SERIES
would not only be impracticable, unworkable
but also unfair and unreasonable. We are
also directing the University to apply the
reservation policy afresh in the light of the
settled law. The University has to carry out
fresh exercise of calculating the reservation
for each department/subject. The relief, in
our opinion, cannot be confined only to the
department/subject in which the petitioners
are the applicants."

21. The view taken in aforesaid
judgment of the Division Bench of this
Court, was affirmed in Vijay Prakash
Bharti vs. Union of India and Others
reported in (2019) 12 SCC 410.

22. In view thereof, I find no
substance and merit in the present petition,
which is hereby dismissed.
----------
(2023) 4 ILRA 1022
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 17.04.2023

BEFORE

THE HON'BLE KARUNESH SINGH PAWAR, J.

Writ A No. 6787 of 2012

Indra Kumar Ex Constable ...Petitioner
Versus
U.O.I. ...Respondent

Counsel for the Petitioner:
Piyush Asthana, Abdul Samad, M.P. Raju,
Maneesh Kumar Singh, Navita Sharma,
Rajendra Singh

Counsel for the Respondent:
A.S.G., Ajay Kumar Singh, Raj Kumar Singh,
Sandeep Sharma, Savitra Vardhan Singh

A. Service Law - Disciplinary proceedings
- C.R.P.F. Rules, 1995 - Rule 27(A),
Section 27 (ccc) - Central Civil Services
(Classification, Control and Appeal) Rules,
1964
-
Rule
10(2)
-
Whenever,
a
disciplinary authority is in disagreement
with the recommendation of the Inquiry
Officer
and
proposes
to
pass
a
punishment/major
punishment,
he
is
bound to assign the reasons for such
disagreement and is also required to give
a show cause notice to the petitioner
indicating such reasons so that the
delinquent employee can have a proper
opportunity to defend himself. (Para 16)

The disciplinary authority while proceeding
against the petitioner has considered the inquiry
report however, has disagreed with such inquiry
report and proceeded to pass major punishment
of removal against the petitioner however, while
disagreeing with the Inquiry Officer, the
authority has not given a show cause notice to
the petitioner which he was entitled under law.
(Para 16)

B. C.R.P.F. Rules, 1995 - Section 27 (ccc) -
When a member of the force has been
tried and acquitted by a criminal court, he
shall not be punished departmentally
under this rule on the same charge or on
the similar charge upon the evidence cited
in the criminal case, whether actually led
or not except with the prior sanction of
the Inspector General.

The Inquiry Officer vide inquiry report dated
23.06.2011 has found charge No. 1 proved in
view of the admission made by the petitioner
however, charge No. 2 was not found by him to
be proved.

In this case admittedly, the petitioner was being
tried for more or less the same charges (i.e.
charge No. 2) before the criminal court
therefore, in view of the express provision of the
Act, the disciplinary authority could not have
proceeded against the petitioner except with the
prior sanction of the Inspector General. (Para
16)

C.
When
there
was
an
honourable
acquittal of the employee during the
pendency of the proceedings challenging
4 All. Indra Kumar Ex Constable Vs. U.O.I.
1023
the dismissal, the same requires to be
taken note of. (Para 17)

In present case, the petitioner was acquitted by
the judgment and order dated 21.02.2012. A
perusal of the said judgment shows that the
acquittal order was passed on the ground that
the prosecution has failed to prove its charge
and thus, it is honorable acquittal, no benefit of
doubt was given to the petitioner and therefore,
the mandate u/s 27 (ccc) of the Rules, 1955
ought to have been followed by the authority
while passing the removal order. (Para 17)

Writ petition allowed. The impugned
orders are set aside. The matter is
remanded
back
to
the
disciplinary
authority. (E-4)

Precedent followed:

1. Ram Kishan Vs U.O.I. & ors., (1995) 6 SCC
157 (Para 9)

2. G.M. Tank Vs St. of Guj. & ors., (2006) 5 SCC
446 (Para 10)

3. U.O.I. & ors. Vs Ghulam Mohd. Bhat, Appeal
(Civil) No. 4950 of 1999 (Para 13)

Present petition challenges orders dated
19.07.2012, 23.11.2011 and order dated
19.07.2011, passed by the opposite party
No. 2, 3 & 4 respectively.

(Delivered by Hon'ble Karunesh Singh
Pawar, J.)

1. Heard Ms. Navita Sharma, learned
counsel for the petitioner and Sri Raj
Kumar Singh, learned counsel for the
Union of India.

2. This petition has been filed by the
petitioner seeking the following reliefs:-

"1. A writ, order or direction in the
nature of Certiorari quashing the impugned
order dated 19.07.2012 (Annexure No.1),
impugned
order
dated
23.11.2011
(Annexure No.2) and impugned order dated
19.07.2011 (Annexure No.3) passed by the
opposite party No.2, 3 & 4 respectively.

2. A writ, order or direction in the
nature of Mandamus commanding the
opposite parties to reinstate the petitioner
in service w.e.f. 19.07.2011 with all
consequential benefits.

3. Any other writ, order or direction
which this Hon'ble Court deem fit, in the
interest of justice may kindly be passed.

4. Award the cost of the case."

3. Brief facts of the case for
adjudicating the controversy are that the
petitioner joined C.R.P.F. on 20.09.2007
and reported F/117 Battalion in Central
Reserve Police Force (in short, ?C.R.P.F?).
He applied for 15 days casual leave w.e.f.
12.01.2011
to
01.02.2011
to
his
Commanding Officer on account of some
serious
illness
of
his
mother
and
accordingly, the leave was sanctioned and
he was dispatched to Jammu.

4. An information was received from
S.H.O., Police Station, Rajbag, District-Sri
Nagar vide letter dated 19.01.2011 that the
petitioner was arrested/detained in the
custody w.e.f. 19.01.2011 during his leave
period in Police Station-Kothibag, DistrictSri Nagar, which is a militant affected area
of Sri Nagar, in connection with abduction
and sexual harassment of a minor girl and
consequently, the F.I.R. was lodged as
F.I.R. No.06 of 2011 under Sections 363
and 376 of R.P.C. The petitioner was
detained exceeding 48 hours in custody
hence, he was placed under suspension vide
order dated 27.01.2011 under Rule 27 (A)
of C.R.P.F. Rules, 1995 read with sub-rule
(2) of Rule 10 of the Central Civil Services
1024 INDIAN LAW REPORTS ALLAHABAD SERIES
(Classification, Control and Appeal) Rules,
1964. The charge-sheet was filed in that
case against the petitioner under Sections
363 and 376 R.P.C. on the ground of above
offences, the disciplinary authority vide
memo
dated
14.03.2011
initiated
disciplinary
proceedings
against
the
petitioner.

5. The Inquiry Officer was appointed who
conducted the inquiry proceedings and
found charge No.1 proved against the
petitioner however, he exonerated the
petitioner from charge No.2 and thereafter,
the inquiry report was submitted. The
disciplinary authority disagreed with the
findings of the Inquiry Officer and has
removed the petitioner from service w.e.f.
19.07.2011 by exercising powers under
Rule 27 (A) of the C.R.P.F. Rules, 1955.

6. Aggrieved by the removal order passed
by the disciplinary authority, the petitioner
filed an appeal dated 16.09.2011 before the
appellate authority i.e. D.I.G., C.R.P.F.,
Allahabad Range (U.P.) which was rejected
by the appellate authority vide order dated
23.11.2011.

7. Aggrieved by the order of the appellate
authority dated 23.11.2011, the petitioner
submitted
a
revision
petition
dated
12.09.2012 however, before filing the
revision petition, a letter written by the
petitioner on 19.03.2012 sending a request
to the opposite party No.2 to reinstate him
in service which was treated as a revision
and it was decided vide impugned order
dated 19.07.2012.

8. The petitioner by way of this writ
petition has challenged the impugned order
dated 19.07.2012 passed by the revisional
authority (Annexure No.1), impugned order
dated 23.11.2011 i.e. the order passed by
the appellate authority (Annexure No.2)
and the impugned order dated 19.07.2011
order passed by the disciplinary authority
(Annexure No.3).

9. Learned counsel for the petitioner
submits that the disciplinary proceedings
were initiated against the petitioner for two
charges. The charge No.1 was that the
leave has been taken by him on the basis of
false grounds that his mother is ill and after
taking leave the petitioner returned to Sri
Nagar and stayed there. The charge No.2
against the petitioner is that in the Sri
Nagar, he was arrested by the police along
with minor girl and has committed rape
upon her due to which F.I.R. under Section
363 and 376 R.P.C. was lodged against
him. He next submitted that after the
inquiry, the Inquiry Officer found charge
No.1 proved and charge No.2 was not
found proved and the trial was pending. He
submitted that after the completion of the
inquiry, the copy of the inquiry report was
sent to the petitioner for giving reply to that
inquiry report wherein the petitioner
admitted the charge No.1 that he had taken
leave on false grounds and asked for
pardon and further the undertaking was
given by the petitioner that in future he will
not commit such mistake. However, when
the inquiry report was sent to the
disciplinary
authority
for
action,
the
disciplinary authority while passing the
impugned order of removal has treated the
charge No.2 also proved and passed the
order of removal. It is submitted that this is
not permissible and if the disciplinary
authority was not in agreement with the
Inquiry Officer and his report then, this fact
ought to have been communicated to the
petitioner against whom the order of
removal was proposed to be passed and the
reasons for the disagreement were also
required to be communicated to the
4 All. Indra Kumar Ex Constable Vs. U.O.I.
1025
petitioner and a fresh show cause notice
should have been issued indicating the
disagreement by the disciplinary authority
and the reasons for such disagreement and
also after giving due opportunity of hearing
to the petitioner, the order could have been
passed. In support of his contention,
learned counsel for the petitioner has relied
on the judgment of Ram Kishan vs. Union
of India & Ors. reported in [(1995) 6 SCC
157].

10. The next contention of learned counsel
for petitioner is that Section 27 (ccc) of
C.R.P.F. Rules, 1955 (hereinafter referred
to as, ?the Rules, 1955) provides that if a
person has been acquitted for an offence
then on the same charge, the punishment
cannot be given unless sanction is taken
from the I.G. This means that till the
conclusion of the trial the punishment order
cannot be passed and therefore, the order of
the disciplinary authority is bad in law to
treat the charge No.2 proved while the
Inquiry Officer was of the opinion that only
charge No.1 was proved. The correct
procedure would have been that either the
whole inquiry should have been deferred
till the decision in the trial or the inquiry
for charge No.2 should have been initiated
only after conclusion of the trial but neither
of the two courses were followed by the
disciplinary authority. It is next submitted
that petitioner was honorably acquitted by
the learned trial court under Sections 363
and 376 R.P.C. vide acquittal order dated
21.02.2012
in
file
No.57/B/153/S/17/receipt
(Annexure
No.6). In support of his contention, learned
counsel for the petitioner has relied on the
judgment of Hon?ble Supreme Court in the
case of G.M. Tank vs. State of Gujarat &
Ors. reported in [(2006) 5 SCC 446]
emphasis is on para 7, 13, 14, 16, 22, 31
and 32. It is submitted on behalf of the
petitioner that once the acquittal order was
passed by the learned trial court, the order
passed
on
the
same
charge
under
departmental inquiry was always open to
the review and petitioner could have been
reinstated. He submits that the petitioner is
entitled for full back-wages from the date
of acquittal. It is also submitted that the
petitioner has been acquitted honorably, the
trial court observed that prosecution has
failed to prove its case. It is submitted that
only those acquittals are not treated as
honorable acquittal in which benefit of
doubt is given to the accused here is not
such a case. So far as charge No.1 is
concerned, it is not disputed between the
parties that charge No.1 was admitted by
the petitioner. It is submitted by learned
counsel for the petitioner that its a minor
allegation and only minor punishment of
stoppage of one or two increments etc. can
be given and punishment of removal cannot
be given for that charge.

11. Per contra, Sri Raj Kumar Singh,
learned counsel for the respondents has
opposed the submission. He submits that
petitioner proceeded on casual leave on the
false grounds with per-planed intention of
coming back to Sri Nagar from Jammu and
abducting the minor girl and stayed with
her. Such kind of conduct is unbecoming of
an Officer in the C.R.P.F. therefore, it is
not a fit case where interference by this
Court is warranted. He submits that
departmental inquiry was conducted and
sufficient opportunity was given to the
petitioner to defend himself as there is no
violation of principles of natural justice. He
submits that application dated 19.03.2012
of the petitioner was treated as revision
under Rule 29 (b) of C.R.P.F. Rules, 1955
and the same has been rejected vide order
dated 19.07.2012. He submits that statutory
revision dated 12.09.2012 was moved by
1026 INDIAN LAW REPORTS ALLAHABAD SERIES
the petitioner beyond the limitation period
prescribed under the Rules and therefore,
the same was rejected on this ground. The
Central Reserve Police Force Act, 1949
provides for the constitution and regulation
of Arms Central Reserve Police Force.
Section 27 of the Rules, 1955 provides the
procedure for the award of punishments.
Section 27 sub-section (c) of the Rules,
1955 provides the procedure for conducting
a departmental inquiry which is extracted
below:-

" (c) The procedure for conducting a
departmental enquiry shall be as follows:-

(1) The substance of the accusation
shall be reduced to the form of a written
charge which should be as precise as
possible. The charge shall be read out to
the accused and a copy of it given to him at
least 48 hrs. before the commencement of
the enquiry.

(2) At the commencement of the
enquiry the accused shall be asked to enter
a plea of Guilty or Not Guilty after which
evidence necessary to establish the charge
shall be let in. The evidence shall be
material to the charge and may either be
oral or documentary, if oral:

(i) it shall be direct:

(ii) it shall be recorded by the Offcer
conducting, the enquiry himself in the
presence of the accused:

(iii) the accused shall be allowed to
cross examine the witnesses.

(3) When documents are relied upon
in support of the charge, they shall be put
in evidence as exhibits and the accused
shall, before he is called upon to make
his defence be allowed to inspect such
exhibits.

(4) The accused shall then be
examined and his statement recorded by
the officer conducting the enquiry. If the
accused has pleaded guilty and does not
challenge the evidence on record, the
proceedings shall be closed for orders. If
he pleads "Not guilty". he shall be
required to file a written statement and a
list of such witnesses as he may wish to
cite in his defence within such period,
which shall in any case be not less than a
fortnight, as the officer conducting
enquiry may deem reasonable in the
circumstances of the case. If he declines
to file a written statement, he shall again
be examined by the officer conducting the
enquiry on the expiry of the period
allowed.

(5) If the accused refuses to cite any
witnesses or to produce any evidence in
his defence, the proceedings shall be
closed for orders. If he produces any
evidence the officer conducting the
enquiry shall proceed to record the
evidence. If the officer conducting the
enquiry considers that the evidence of
any witness or any document which the
accused wants to produce in his defence
is not material to the issues involved in
the case he may refuse to call such
witness or to allow such document to be
produced in evidence, but in all such
cases he must briefly record his reasons
for
considering
the
evidence
inadmissible. When all relevant evidence
has
been
brought
on
record,
the
proceedings shall be closed for orders.

(6) If the Commadant has himself held
the enquiry, he shall record his findings
and pass orders where he has power to do
4 All. Indra Kumar Ex Constable Vs. U.O.I.
1027
so. If the enquiry has been held by any
officer other than the Commandant, the
officer
conducting
the
enquiry
shall
forward his report together with the
proceedings to the Commandant who shall
record his findings and pass order where
he has power to do so.

(7) Deleted vide GSR 75 dated 26.1.80."

12. Section 27 (ccc) of the Rules, 1955
provides that when a member of force has
been tried and acquitted by a criminal
court,
he
shall
not
be
punished
departmentally under this Rule on the same
charge or on the similar charge. The
aforesaid Section 27 (ccc) of the Rules,
1955 is also extracted below:-

" (ccc) When a member of the Force
has been tried and acquitted by a criminal
court,
he
shall
not
be
punished
departmentally under this rule 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"

13. Learned counsel for Union of India has
further submitted that unauthorized absence
from the duty in disciplined post like
C.R.P.F. entails major punishment hence,
no lenient view is required to be adopted by
the court. In support of his contention, he
has relied on the judgment of Hon?ble
Supreme Court in the case of Union of
India & Ors. vs. Ghulam Mohd. Bhat
[Appeal (civil) No.4950 of 1999].

14. Heard learned counsel for both the
parties.

15. The two charges framed against the
petitioner are extracted as under:-

"(1) यह कक बल संख्या 075184846
भस०/जीडी इन्र कुिार एफ/117 बटाभलयन ने
केन्रीय ररजित पुभलस बल िें भसपाही / जीडी के
पद
पर
कायतरत
रहते
हुए
के.रर.पु.बल,
अधिननयि 1949 की िारा- 11(1) के अिीन बल
का सदस्य होने की हैभसयत से आदेशों की و
अिज्ञा/उपेक्षा/अनुशासनहीनता
तथा
अन्य
कदाचार का व्यिहार ककया है, जजसिें िह अपनी
िाता के सख्त बीिार होने के संबंि िें झूठा
प्राथतना पत्र किाडडंग आफीसर को प्रस्तुत कर
15 ददन स्िीकृत आकजस्िक अिकाश ददनांक.
12/1/2011 से 01/2/2011 (अनुिनत ददनांक
14/01/11,
15/01/11,
16/01/11,
23/01/11,
26/01/11 एिं 30/01/11) तक स्िीकृत कराया
तथा ददनांक 12/01/11 को डाउन कानिाय के
िाध्यि से श्रीनगर से जम्िू िेजे जाने के
उपरांत िह बबना ककसी सूचना के िापस श्रीनगर
आकर लालचौक तथा उसके आस-पास के अनत
संिेदनशील जगह पर रहा। तथा उसे भसिल
पुभलस द्िारा एक स्थानीय नाबाभलग ल़िकी के
साथ संदेहास्पद जस्थनत िें पक़ि कर पुभलस
स्टेशन राजबाग श्रीनगर के सुपुदत ककया गया
जहााँ उसे भसिल पुभलस द्िारा ददनांक 19/01/11
को 48 घंटे से अधिक सिय तक पुभलस
दहरासत िें रखा गया। बल संख्याः 075184846
भसपाही/जीडी इन्र कुिार, का यह कदाचार बल
के ननयिों के विपरीत है तथा के०रर०पु०बल
ननयििाली-1955 के ननयि 27 के तहत
दण्डनीय अपराि है।

(2) यह कक बल संख्या 075184846
भसपाही/जीडी इन्र कुिार एफ/117 बटाभलयन ने
केन्रीय ररजित पुभलस बल िें भसपाही/ जीडी के
पद पर कायतरत रहते हुए के०रर०पु०बल
1028 INDIAN LAW REPORTS ALLAHABAD SERIES
अधिननयि-1949 की िारा 11(1) के अिीन बल
का सदस्य होने की हैभसयत से, आदेशों की
अिज्ञा/उपेक्षा/अनुशासनहीनता
तथा
अन्य
कदाचार का व्यिहार ककया है, जजसिें िह 15
ददन आकसभिक अिकाश ददनांक 12/1/2011 से
01/2/2011 (अनुिनत ददनांक 14/01/11, 15/01/11,
16/01/11, 23/01/11, 26/01/11 एिं 30/01/11) के
दौरान बबना ककसी पूित सूचना तथा सक्षि
प्राधिकारी
की
अनुिनत लाल
चौक
जैसे
अनतसंिेदनशील इलाके िें रहा था एक स्थानीय
नाबाभलग ल़िकी के साथ अिैि संबंि स्थावपत
ककये जजसके संबंि िें भसिल पुभलस द्िारा
उक्त भसपाही के र्खलाफ पुभलस स्टेशन राजबाग
श्रीनगर िें रणबीर पैनल कोड की िारा 363/376
प्राथभिक सूचना संख्या 6/2011 के अंतगत
आपराधिक िािला दजत कर उसे ददनांक
19/1/11 को 48 घंटे से अधिक सिय तक पुभलस
दहरासत िें रखा। बल संख्या 075184846
भसपाही/जीडी
इन्र
कुिार
ने
उक्त
अिचार/कदाचार का कृत्य कर बल की छवि को
िूभिल ककया है जो बल के ननयिों के विपरीत
है तथा के०रर०पु०बल ननयिािली 1955 के
ननयि 27 के तहत दण्डनीय अपराि है।"

16. A perusal of the first charge shows that
the petitioner was charged for producing
the false and wrong information to his
Commanding Officer for sanctioning of his
15 days casual leave of his mother?s
serious illness. The second charge was
staying in a sensitive area of Sri Nagar
during the leave period without the consent
of
his
Officer
commanding
or
the
Commandant and defaming the image of
the
force
by
involving
himself
in
undisciplined activity and establishing
sexual relationship with a minor girl and
thus, a misconduct was committed. The
Inquiry Officer vide inquiry report dated
23.06.2011 has found charge No.1 proved
in view of the admission made by the
petitioner however, charge No.2 was not
found by him to be proved. It is admitted
between the parties that the disciplinary
authority has concluded the disciplinary
proceedings on the above charges during
the
trial
of
the
petitioner
in
file
No.57/B/153/S/17/receipt. A perusal of the
Section 27 (ccc) of the Rules, 1955 makes
it clear that when a member of the force has
been tried and acquitted by a criminal
court,
he
shall
not
be
punished
departmentally under this rule on the same
charge or on the similar charge upon the
evidence cited in the criminal case, whether
actually led or not except with the prior
sanction of the Inspector General. In this
case admittedly, the petitioner was being
tried for more or less the same charges that
is charge No.2 before the criminal court
therefore, in view of the express provision
of the Act, the disciplinary authority could
not have proceeded against the petitioner
except with the prior sanction of the
Inspector General. There is nothing on the
record to indicate that any prior sanction
with the Inspector General was obtained by
the Department hence, this Court is of the
view that the disciplinary authority has
conducted the proceedings against the
petitioner in flagrant violation of Section
27 (ccc) of the Rules, 1955. The contention
of the petitioner that disciplinary authority
while proceeding against the petitioner has
considered the inquiry report however, has
disagreed with such inquiry report and
proceeded to pass major punishment of
removal against the petitioner however,
while disagreeing with the Inquiry Officer,
the authority has not given a show cause
notice to the petitioner which he was
entitled under law and the law on this point
4 All. Indra Kumar Ex Constable Vs. U.O.I.
1029
is settled that whenever, a disciplinary
authority is in disagreement with the
recommendation of the Inquiry Officer and
proposes to pass a punishment/major
punishment, he is bound to assign the
reasons for such disagreement and is also
required to give a show cause notice to the
petitioner indicating such reasons so that
the delinquent employee can have a proper
opportunity to defend himself. In this case
admittedly, this has not been done. The
Hon?ble Supreme Court in the case of Ram
Kishan (supra) in para 10 has held as
under:-

"10. The next question is whether the
show cause notice is valid in law. It is true,
as rightly contended by the counsel for the
appellant, that the show cause notice does
not indicate the reasons on the basis of
which the disciplinary authority proposed
to disagree with the conclusions reached by
the inquiry officer. The purpose of the show
cause notice, in case of disagreement with
the findings of the enquiry officer, is to
enable the delinquent to show that the
disciplinary authority is pursuaded not to
disagree with the conclusions reached by
the inquiry officer for the reasons given in
the inquiry report or he may offer
additional reasons in support of the finding
by the inquiry officer. In that situation,
unless the disciplinary authority gives
specific reasons in the show cause on the
basis of which the findings of the inquiry
officer in that behalf is based, it would be
difficult for the delinquent to satisfactorily
give reasons to pursuade the disciplinary
authority to agree with the conclusions
reached by the inquiry officer. In the
absence of any ground or reason in the
show cause notice it amounts to an empty
formality
which
would
cause
grave
prejudice to the delinquent officer and
would result in injustice to him. The mere
fact that in the final order some reasons
have been given to disagree with the
conclusions reached by the disciplinary
authority cannot cure the defect. But, on
the facts in this case, the only charge which
was found to have been accepted is that the
appellant had used abusive language on
the
superior
authority.
Since
the
disciplinary authority has said that it has
agreed
partly
to
that
charge,
the
provisional conclusion reached by the
disciplinary authority in that behalf even in
the show cause notice, cannot be said to be
vague. Therefore, we do not find any
justification to hold that the show cause
notice is vitiated by an error of law, on the
facts in this case."

17. In this case the petitioner was acquitted
by
the
judgment
and
order
dated
21.02.2012. A perusal of the said judgment
shows that the acquittal order was passed
on the ground that the prosecution has
failed to prove its charge and thus, it is
honorable acquittal, no benefit of doubt
was given to the petitioner and therefore,
the mandate under Section 27 (ccc) of the
Rules, 1955 ought to have been followed
by the authority while passing the removal
order. Law in this regard has been settled
by the Honble Supreme Court in the case of
G.M.
Tank
(supra).
The
relevant
paragraphs 7, 22 and 31 are extracted
below:-

7. The Special Judge had honourably
acquitted the appellant of the offence
punishable under Section 5(1)(e) read with
Section 5(2) of the Act by holding that the
prosecution has failed to prove the charges
levelled against the appellant and thus the
appellant cannot be held to be guilty of the
said offence. This acquittal is by way of
complete exoneration and not by giving
benefit of doubt which is evident from the
1030 INDIAN LAW REPORTS ALLAHABAD SERIES
judgment of the Special Judge. The
Division Bench, however, overlooked this
fact and the additional fact that on the
basis of very report submitted by Mr. V.B.
Raval, the Special Judge had acquitted the
appellant.

22. In the case of Capt. M. Paul
Anthony vs. Bharat Gold Mines Ltd. &
Anr.(supra), the question before this Court
was as to whether the departmental
proceedings and the proceedings in a
criminal case launched on the basis of the
same set of facts can be continued
simultaneously. In Paragraph 34, this Court
held as under :

"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 therefrom". The
findings recorded by the enquiry officer,
a copy of which has been placed before
us, indicate that the charges framed
against the appellant were sought to the
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 enquiry officer and the enquiry
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."

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

18. In view of above, petition succeeds
and is allowed. The impugned orders are
set aside. The matter is remanded back to
the disciplinary authority to pass a fresh
order from the stage, he has received a
copy of the inquiry report after giving
adequate opportunity of hearing to the
petitioner by giving him a show cause
notice along with the copy of the inquiry
report within a period of three months from
the date of receipt of a certified copy of this
order.
----------
4 All. Ram Kishan @ Kishan Lal & Anr. Vs. State of U.P.
1031
(2023) 4 ILRA 1031
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 21.04.2023

BEFORE

THE HON'BLE SURENDRA SINGH-I, J.

Criminal Appeal No. 1599 of 1995

Ram Kishan @ Kishan Lal & Anr.
 ...Appellants (On Interim Bail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellants:
Sri V.S. Singh, Sri Ajay Sengar

Counsel for the Opposite Party:
G.A.

Criminal Law - Indian Penal Code, 1860 -
Sections 323/34 & 427/34 Probation of
Offenders Act, 1958 - Sections 4 & 5 - The
Code of Criminal Procedure, 1973 -
Sections
313,
357,
360
-
Rigorous
imprisonment - Appeal against conviction
- As per FIR - On 26.06.1990, appellants
stopped the Bus, compelled the driver,
conductor and passengers to alight from
the bus - Appellants in furtherance of
common intention with such knowledge
caused injury to passenger, if death took
place, they would be guilty of culpable
homicide not amounting to murder -
Appellants also voluntarily caused injury
to driver - They pelted stones on the bus,
resulting in breaking of windowpanes,
causing damage of Rs. 15000/- Bus driver
(PW-1) lodged the FIR - Injuries were
simple in nature, caused by hard blunt
object - Prosecution examined PW-1 to
PW-4 as witnesses of fact, PW-5, PW-6 as
formal witnesses - From the evidence of
PW-4, it transpires that 4-5 days earlier to
the
occurrence,
there
was
quarrel
between PW-1 and accused persons, they
wanted
to
travel
by
bus
without
purchasing a ticket - Nothing has emerged
in cross examination of PW-4 which may
raise doubt about veracity of St.ment -
Evidence of PW-1, PW-2 and PW-4 proved
prosecution
case
-
Considering
the
evidence PW-5, defence fails to prove that
PW-1 and PW-2 received injury due to
assault of villagers - Hence, no illegality in
impugned order, conviction is upheld -
Directions accordingly. (Para 3, 4, 5, 10,
23, 25, 45)

Appeal is disposed of. (E-13)

List of Cases cited:

1. Leela Ram (dead) through Dull Chandra Vs
St. of Har. & ors., (2000) SCC (Crl) 222

2. Krishna Mochi & ors. Vs St. of Bihar, (2002)
SCC (Crl.) 1220

3. St. of M. P. Vs Vikram Das (2019) 4 SCC 125

4. Manohar Singh Vs St. of Raj. & ors. (2015) 3
SCC 449

5. Subhash Chand & ors. Vs St. of U.P., 2015
Lawsuit (Alld) 1343

6. St. of Maharashtra Vs Jagmohan Singh Kuldip
Singh Anand & ors. (2004) 7 SCC 659

7. Jagat Pal Singh & ors. Vs St. of Har., AIR 2000
SC 3622

(Delivered by Hon'ble Surendra Singh-I, J.)

Heard Sri Ajay Sengar, learned
counsel for the appellants and Sri Sunil
Kumar Tripathi, learned A.G.A. for the
State.

2. This criminal appeal has been
instituted against the judgement and order
dated 15.09.1995 passed by Additional
Sessions Judge, Lalitpur in Sessions Trial
No. 64 of 1993, State of U.P. Vs. Ram
Kishan and another, arising out of Case
Crime No. 105 of 1909 u/s 308, 323 and
427 I.P.C., P.S.- Mahrauni, District-
Lalitpur.