# The Union of India and another v. Bhikham Singh

- **Citation:** (2004) 2 ILRA 611
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2004-08-18
- **Case number:** Special Appeal No. 682 of 2002
- **Bench:** M. Katju, Umeshwar Pandey
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/the-union-of-india-and-another-v-bhikham-singh-40275
- **Pages:** 7

## Headnote

Constitution of India-Art. 226-C.R.P.F.
Rules,
1975-Service
law-Misconduct-
Dismissal-concealment of material facti
regarding involvement in Criminal caseabout arrest and subsequent release on
bail-Discretionary
enquiry-Order
of
dismissal-Writ against-Single Judge held
that misconduct stood washed off on
acquittal
of
petitioner
and
that
punishment
of
dismissal
was
disproportionate to misconduct-Special
Appeal-For proving or disproving guilt of
concealment of material facts, final
acquittal of petitioner by Trial Court is
immaterial-Held,
petitioner
was
not
entitled
for
relief
of
quashing
punishment order which stood merged
with appellate order-Since petitioner had
not asked for relief of quashing of
appellate
order-Further,
writ
court
strived
in
vain
to
question
proportionality
of
quantum
of
punishment,
where
there
was
no
justification to exhonate petitioner of
charges of concealment of substantive
facts about his arrest etc. in connection
with
a
criminal
case-Hence
appeal
allowed.

Held: Para 10,16 17

Copy of the statement of Ishwar SinghCompany Commander filed as Annexure2 to the memorandum of appeal, reveals
that it was recorded in the presence of
the petitioner and the proceedings were
not taken up behind his back. The
aforesaid facts are fully established on
the record and the petitioner was rightly
found
guilty
for
concealment
of
important facts, which he was bound to
divulge before his authorities and thus
he had grossly misconduct himself. In
view of the aforesaid, we find that for
proving or disproving this guilt, the
circumstance that the petitioner was
finally acquitted in the rape and Marpeet
case by the trial court is hardly of any
consequence, though it definitely finds
great emphasis in the judgment of the
learned Single Judge.

Thus, while summing up the entire facts
and circumstances in the light of the
above observations recorded by us in the
judgment, we hold that the petitioner
was not
entitled for
the
relief of
quashing the punishment order dated
30.1.1991 which had stood merged with
the appellate order as he had not sought
for the relief to quash the appellate
order dated 12.12.1993. We also find
that the learned Single Judge has strived
in vain to question the proportionality of
the quantum of punishment when there
was hardly any justification to exonerate
the
petitioner
of
the
charges
of
deliberate concealment of important and
sensitive facts about his arrest etc in
connection with a criminal case.

On the facts and circumstances, we find
that the petition of the delinquent
employee does not have any force at all
and instead of granting relief in his
favour the petition itself should have
dismissed. We thus find that there is
sufficient merit in the appeal, which
deserves to be allowed.
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 INDIAN LAW REPORTS ALLAHABAD SERIES [2004
612
Case law discussed:
(2003) 4 SCC 364
(1997) 3 SCC 371
(1995) 6 SCC 749
(1997) 7 SCC 463
(1994) 2 SCC 537
1997 (76) FLR 775
AIR 1987 SC 2386

## Text

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2 All] The Union of India and another V. Bhikham Singh
611
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.08.2004

BEFORE
THE HON'BLE M. KATJU, J.
THE HON'BLE UMESHWAR PANDEY, J.

Special Appeal No. 682 of 2002

The Union of India and another

...Appellants
Versus
Bhikham Singh

 ...Respondent

Counsel for the Applicants:
Sri Subodh Kumar
Sri M.I. Khan
Sri B.N. Singh, S.S.C.

Counsel for the Respondents:
Sri I.P. Yadav
Sri Krishnaji Khare

Constitution of India-Art. 226-C.R.P.F.
Rules,
1975-Service
law-Misconduct-
Dismissal-concealment of material facti
regarding involvement in Criminal caseabout arrest and subsequent release on
bail-Discretionary
enquiry-Order
of
dismissal-Writ against-Single Judge held
that misconduct stood washed off on
acquittal
of
petitioner
and
that
punishment
of
dismissal
was
disproportionate to misconduct-Special
Appeal-For proving or disproving guilt of
concealment of material facts, final
acquittal of petitioner by Trial Court is
immaterial-Held,
petitioner
was
not
entitled
for
relief
of
quashing
punishment order which stood merged
with appellate order-Since petitioner had
not asked for relief of quashing of
appellate
order-Further,
writ
court
strived
in
vain
to
question
proportionality
of
quantum
of
punishment,
where
there
was
no
justification to exhonate petitioner of
charges of concealment of substantive
facts about his arrest etc. in connection
with
a
criminal
case-Hence
appeal
allowed.

Held: Para 10,16 17

Copy of the statement of Ishwar SinghCompany Commander filed as Annexure2 to the memorandum of appeal, reveals
that it was recorded in the presence of
the petitioner and the proceedings were
not taken up behind his back. The
aforesaid facts are fully established on
the record and the petitioner was rightly
found
guilty
for
concealment
of
important facts, which he was bound to
divulge before his authorities and thus
he had grossly misconduct himself. In
view of the aforesaid, we find that for
proving or disproving this guilt, the
circumstance that the petitioner was
finally acquitted in the rape and Marpeet
case by the trial court is hardly of any
consequence, though it definitely finds
great emphasis in the judgment of the
learned Single Judge.

Thus, while summing up the entire facts
and circumstances in the light of the
above observations recorded by us in the
judgment, we hold that the petitioner
was not
entitled for
the
relief of
quashing the punishment order dated
30.1.1991 which had stood merged with
the appellate order as he had not sought
for the relief to quash the appellate
order dated 12.12.1993. We also find
that the learned Single Judge has strived
in vain to question the proportionality of
the quantum of punishment when there
was hardly any justification to exonerate
the
petitioner
of
the
charges
of
deliberate concealment of important and
sensitive facts about his arrest etc in
connection with a criminal case.

On the facts and circumstances, we find
that the petition of the delinquent
employee does not have any force at all
and instead of granting relief in his
favour the petition itself should have
dismissed. We thus find that there is
sufficient merit in the appeal, which
deserves to be allowed.
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 INDIAN LAW REPORTS ALLAHABAD SERIES [2004
612
Case law discussed:
(2003) 4 SCC 364
(1997) 3 SCC 371
(1995) 6 SCC 749
(1997) 7 SCC 463
(1994) 2 SCC 537
1997 (76) FLR 775
AIR 1987 SC 2386

(Delivered by Hon'ble Umeshwar Pandey, J.)

1. By this intra court appeal, the
appellant-Union of India has challenged
the judgment and order dated 10.9.2002
passed by the learned Single Judge
granting relief of quashing the dismissal
order of the petitioner-respondent and
directing the authorities to reinstate him in
service with all consequential benefits etc.

2. The brief facts are that the
petitioner while on earned leave for some
time, was involved in a criminal case
under Section 376, 452 and 323 of I.P.C.
at his home police station of district Agra.
He was said to have entered the house of
Smt. Roopam Devi, the prosecutrix of a
criminal case and committed rape against
her and also assaulted her family
members. After his return from leave, the
petitioner did not inform his immediate
authorities about registration of the
criminal case against him and then had
proceeded for 40 days earned leave. In
that criminal case the petitioner was taken
into
police
custody
during
the
investigation proceedings and was later
on released on bail. The petitioner also
did not give information of his arrest in
the case and subsequent release on bail to
his immediate superior officer. It was the
aforesaid Smt. Roopam Devi who gave
this
information
to
the
Company
Commander of the petitioner. On receipt
of this information, details of the criminal
case were obtained by the department
from the police station concerned. Since
the conduct of the petitioner was gravely
prejudicial to the required standard of
discipline of the force to which he
belonged, disciplinary proceedings were
started against him under the relevant rule
of C.R.P.F. Rules, 1975. The Inquiry
Officer,
after
conclusion
of
the
proceedings, found that the charges of
mis-conduct about the concealment of
facts regarding his arrest in the aforesaid
criminal case and subsequent release on
bail, had been fully established against
him.
Accordingly,
the
disciplinary
authority concurring with the report of the
inquiry and on considering the reply
submitted by the petitioner found that
even if the police case registered against
the petitioner was fabricated, he, in all
propriety, as a member of a disciplined
force should have reported the full facts to
his Company Commander on coming
back from the leave but he deliberately
did not do so. Accordingly not finding the
petitioner a fit person to be retained in
service as a member of the force, he
passed the impugned order of dismissal
from service.

3. It was contended on behalf of the
petitioner that in the course of time he
faced trial in the criminal case and was
acquitted for the offences with which he
was charged. As such, that incident
should not be construed as a mis-conduct
on his part and he cannot be held guilty
which could entail the award of extreme
punishment of dismissal. It is further
contended that the petitioner on return
from his earned leave had come to the
office and had detailed the entire fact
about his arrest and release etc. to his
Company
Commander-Ishwar
Singh.
Thus, he could not be accused of having
concealed this fact from his superiors in
the force.

4. The learned Single Judge after
having considered the entire aspect of the
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2 All] The Union of India and another V. Bhikham Singh
613
matter found that the charge of alleged
concealment of fact by the petitioner
about his involvement and arrest in the
criminal case and later on his release on
bail, could not stand to judicial scrutiny
and
the
alleged
mis-conduct
of
involvement in a criminal case of rape etc.
also stood completely washed off on
petitioner's ultimate acquittal in the
criminal case. The learned Single Judge
also found that the award of punishment
of dismissal from service was highly
disproportionate to the charges levelled
against the petitioner and he accordingly
allowed the petition and passed the
impugned order.

5. We have heard Sri Subodh
Kumar, learned counsel appearing for the
appellants
and
Sri
Krishnaji
Khare
representing the respondent-petitioner and
have gone through the entire record.

6. The learned counsel for the
appellant has tried to emphasise that the
learned Single Judge while granting relief
in the present writ petition has given
undue weightage to petitioner's acquittal
in the criminal case of rape etc., whereas
this aspect should not be of much
relevance in a departmental proceeding
started against a delinquent in connection
with the charges relating to that criminal
incident and his subsequent conduct in
respect thereto. Sri Subodh Kumar,
learned counsel for the appellant in this
context has relied upon the decision in
Chairman & Managing Director, United
Commercial Bank Vs. P.C. Kakkar
reported in (2003) 4 S.C.C. 364 and has
contended that acquittal in a criminal case
could not be determinative of the
commission of mis-conduct and it is open
to the authorities to proceed with the
disciplinary proceedings notwithstanding
such acquittal in the criminal case. The
employee is not entitled to claim
immunity from such proceeding on that
basis. That may be a circumstance to be
considered while awarding punishment
and it would depend upon the facts of
each case. There cannot be any universal
application of such circumstance. Learned
counsel for the appellants has also
contended that the proportionality of the
punishment awarded as judged by the
learned Single Judge in his impugned
order, is also not legally justifiable. It is
further submitted that the petitioner has
only challenged the order of dismissal
dated 30.1.1991 from service whereas he
had preferred a departmental appeal
which was dismissed vide order dated
12.12.1993. The dismissal order dated
30.1.1991 passed by the disciplinary
authority thus, stood merged with the
order of the appellate authority dated
12.12.1993 and in case the appellate order
has not been challenged in the petition,
the relief of quashing the order of
dismissal from service could not be
legally granted by the learned Single
Judge.

7. From a perusal of the impugned
judgment of the learned Single Judge, it is
apparent that the appeal preferred by the
petitioner before the appellate authority
against the order of dismissal dated
30.1.1991 had been dismissed vide
appellate order dated 12.12.1993. A copy
of the appellate order is filed as
Annexure-4 to the affidavit filed along
with memo of appeal. If the petitioner's
appeal against his dismissal order had
been rejected by the authority, it is quite
obvious that the said dismissal order
challenged in the petition stood merged
with the appellate order but by the time
the petition was argued before the learned
Single Judge and till its disposal by the
impugned judgment, the appellate order
was not challenged by the petitioner. If
such appellate order survives, there is
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 INDIAN LAW REPORTS ALLAHABAD SERIES [2004
614
absolutely no meaning of quashing the
order of dismissal by the Court under
Article 226 of the Constitution of India.
The said order of dismissal remains alive
in the form of the appellate order which
continues to be operative. Thus, the relief
claimed in the petition actually becomes
redundant so long as the petitioner does
not claim the relief to quash the appellate
order. In this view of the matter, the
present petition being silent about the
appellate order and not challenging the
same would be deemed to be not
maintainable and on this score itself the
petition deserves to be dismissed. This
aspect of the matter has not been
considered by the learned Single Judge
even though the fact that the appeal of the
petitioner had been dismissed by the
authority was very much in the notice of
the learned Single Judge. While referring
to the contentions of the counter affidavit,
this allegation of the appellant-Union of
India finds reference in the last paragraph
of the impugned judgment at page 15 of
the paper book of this appeal. On this
ground itself that the petition was liable
for dismissal we find that the impugned
judgment thus cannot be sustained in the
eye of law.

8. We also fully agree with the
submissions of the learned counsel for the
appellants that undue weightage has been
given in the judgment of the learned
Single Judge to the fact that the
petitioner-respondent in the trial in the
case of rape and Marpeet had not been
found guilty and was acquitted for those
offences.

9. In the aforesaid case of Chairman
& Managing Director (UCO Bank)
(supra), the Apex Court has in quite
categorical terms held that acquittal in the
criminal case is not determinative of
commission of mis-conduct and it is open
to the authorities to proceed with the
disciplinary proceeding notwithstanding
acquittal in the case. Such acquittal order
of the criminal court does not entitle an
employee
to
claim
immunity
from
disciplinary proceedings and at the most it
may be a circumstance to be considered
while awarding punishment. That too
would depend upon the facts of each case
and that cannot be a circumstance
available for universal application.

10. A perusal of the inquiry report
(Annexure-2 to the memo of appeal) and
the impugned order of dismissal dated
30.1.1991
(Annexure-3
to
the
memorandum of appeal) shows that the
petitioner has not been found guilty and
punished for the charges of committing
the offence of rape and Marpeet but in
fact he was found guilty for the charges of
deliberate concealment of the fact that he
was involved in the case, as a result of
which he was arrested by the police, kept
in the lock up for some days and
thereafter released on bail. It is not
disputed that in such a criminal case as
aforesaid, the petitioner was involved and
that he was arrested by the police during
the investigation, kept in judicial lock up
and was later on released. The fact of the
petitioner's involvement in a rape case
and the happenings subsequent to the
registration of the case were actually not
communicated to his immediate superior,
the Company Commander-Ishwar Singh,
who was examined as a witness during
the inquiry proceedings in presence of the
petitioner. The petitioner was on leave
from 20.7.1990 to 28.8.1990 during
which period he had been arrested in the
criminal case and later on released on
bail. He as a personnel belonging to the
disciplined force of C.R.P.F. was bound
to intimate his immediate authorities
about all these incidents of his arrest etc.
But as per his Company Commander-
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2 All] The Union of India and another V. Bhikham Singh
615
Ishwar Singh, he did not inform him
about all these facts, thereby committing a
serious mis-conduct making himself liable
for
disciplinary
action.
The
report
submitted by the Inquiry Officer and
relied upon by the disciplinary authority
(Annexure 2 and 3) clearly discloses this
fact that the petitioner was found guilty of
making deliberate concealment of those
incidents which had happened with him
during the period of his earned leave from
20.7.1990 to 28.8.1990. The Inquiry
Officer has relied upon the statement of
Ishwar
Singh-Company
Commander
regarding the aforesaid finding against the
petitioner. We, while exercising our
jurisdiction under Article 226 of the
Constitution of India, cannot reverse the
finding of fact so recorded by the Inquiry
Officer or the disciplinary authority. Copy
of the statement of Ishwar SinghCompany Commander filed as Annexure2 to the memorandum of appeal, reveals
that it was recorded in the presence of the
petitioner and the proceedings were not
taken up behind his back. The aforesaid
facts are fully established on the record
and the petitioner was rightly found guilty
for concealment of important facts, which
he was bound to divulge before his
authorities and thus he had grossly
misconducted himself. In view of the
aforesaid, we find that for proving or
disproving this guilt, the circumstance
that the petitioner was finally acquitted in
the rape and Marpeet case by the trial
court is hardly of any consequence,
though it definitely finds great emphasis
in the judgment of the learned Single
Judge.

11. As regard the quantum of
punishment awarded to the petitioner,
there is a catena of case law in which the
propriety of the courts interfering with the
quantum of punishment awarded to the
delinquent have been questioned. The
Apex Court in several cases has in very
clear words made this scope of courts
interference as extremely limited. In case
the findings recorded by the disciplinary
authority are not found questionable and
worth interference in the judicial review,
the courts are not supposed to interfere
with the punishment awarded to the
delinquent. Even if a lesser punishment
has been awarded, the courts are not
supposed
to
interfere
with
such
administrative orders also vide Balbir
Chauhan Vs. Food Corporation of India
Ltd. and others, (1997) 3 S.C.C. 371 para6.

12. In B.C. Chaturvedi Vs. Union of
India & others, (1995) 6 S.C.C. 749, the
Apex Court in para-18 of the judgment
has observed as below:-

......the disciplinary authority, and
on appeal the appellate authority, being
fact finding authorities have exclusive
power to consider the evidence with a
view to maintain discipline. They are
invested with the discretion to impose
appropriate punishment keeping in view
the
magnitude
or
gravity
of
the
misconduct. The High Court/Tribunal,
while exercising the power of judicial
review, cannot normally substitute its own
conclusion on penalty and impose some
other penalty. If the punishment imposed
by the disciplinary authority or the
appellate authority shocks the conscience
of the High Court/Tribunal, it would
appropriately mould the relief, either
directing
the
disciplinary/appellate
authority to reconsider the penalty
imposed, or to shorten the litigation, it
may itself, in exceptional and rare cases,
impose appropriate punishment with
cogent reasons in support thereof.

In Union of India and another Vs.
G. Ganayutham, (1997) 7 S.C.C. 463, the
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 INDIAN LAW REPORTS ALLAHABAD SERIES [2004
616
Supreme Court has summarized the scope
of judicial review against a punishment
order in the following words:-

"In such a situation, unless the
court/tribunal opines in its secondary
role, that the administrator was, on the
material before him, irrational according
to Wednesbury or CCSU norms, the
punishment cannot be quashed. Even
then, the matter has to be remitted back to
the
appropriate
authority
for
reconsideration. It is only in very rare
cases as pointed out in B.C. Chaturvedi
case that the Court might --to shorten
litigation--think of substituting its own
view as to the quantum of punishment in
the place of the punishment awarded by
the competent authority."

13. The Supreme Court in another
case of State Bank of India Vs.
Samrendra Kishore Endow, (1994) 2
S.C.C 537 while considering the order of
the Tribunal which quashed the charges as
based on no evidence, went in detail into
the question as to whether the Tribunal
had power to appreciate the evidence
while exercising power of judicial review
and held that a Tribunal could not
reappreciate the evidence and substitute
its own conclusion for that of the
disciplinary authority. It would, therefore,
be clear that the Tribunal (or Court)
cannot embark upon the appreciation of
evidence to substitute its own findings of
fact for that of a disciplinary/appellate
authority,
and
it
cannot
ordinarily
interfere with the quantum of punishment.

14. The Court will not apply
proportionality as a primary reviewing
court. It is, thus, established that the
disciplinary authority or the appellate
authority, as the case may be, being fact
finding authorities have exclusive power
to consider the evidence recorded in
disciplinary proceedings with a view to
maintain
discipline.
They
are
also
invested with the discretion to impose
appropriate punishment keeping in view
the magnitude or gravity of the misconduct. The Courts while exercising
power of judicial review cannot substitute
its own conclusion on penalty and impose
some other penalty. In the aforesaid B.C.
Chaturvedi's case (supra), the Supreme
Court has gone to the extent of laying
down a principle that the High Court or
Tribunal
in
very
exceptional
circumstances can appropriately mould
the
relief
either
directing
the
disciplinary/appellate
authority
to
reconsider the penalty imposed, or to
shorten the litigation, it may itself, in
exceptional and rare cases, impose
appropriate
punishment
with
cogent
reasons in support thereof.

15. The High Court or Tribunal is
not supposed to go into the correctness of
the choice made by the disciplinary
authority amongst the various alternatives
open to him. Nor could the Court
substitute its decision for that of the
disciplinary authority. While coming to
the present case, we find that the
petitioner-respondent was a C.R.P.F.
personnel and was thus a member of a
disciplined force. The authorities had
received
information
through
some
complaint that he was arrested in a
criminal case of rape and marpeet. He was
kept under the lockup for a few days and
thereafter released on bail. Obviously,
these are such important facts, which had
to be brought to the notice to his
immediate
superiors
at
the
earliest
opportunity by the petitioner himself. As
per the findings recorded by the Inquiry
Officer, these facts were not brought to
the notice of the Company Commander
by the petitioner, instead such information
was sent to him through a letter of the
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2 All] Krishna Kumar V. Assistant General Manager, S.B.I, Kanpur and another
617
lady who was alleged to have been raped
by the petitioner. This was definitely a
mis-conduct of serious nature committed
by the petitioner, who was a member of a
disciplined force. If one belongs to a force
of the type, he is supposed to maintain
that discipline everywhere whether on
duty or off duty. Such grave mis-conduct
having
been
found
to
have
been
committed by the petitioner, there was
hardly any occasion for the learned Single
Judge to hold that the decision for the
award of punishment of dismissal from
service taken by the disciplinary authority
was so unreasonable or irrational as can
be termed shockingly disproportionate.
The learned Single Judge has referred to
the decisions in Ram Awadh Vs. The Dy.
Inspector
General, Eastern Region,
C.I.S.F., Patna & others, 1997 (76) FLR
775 and Ranjeet Thakur Vs. Union of
India, A.I.R. 1987 S.C. 2386. The
aforesaid cases are distinguishable on the
facts and principles from the present case,
especially in the background of the
principles of law laid down by the Apex
Court in the cases referred to above.

16. Thus, while summing up the
entire facts and circumstances in the light
of the above observations recorded by us
in the judgement, we hold that the
petitioner was not entitled for the relief of
quashing the punishment order dated
30.1.1991 which had stood merged with
the appellate order as he had not sought
for the relief to quash the appellate order
dated 12.12.1993. We also find that the
learned Single Judge has strived in vain to
question
the
proportionality
of
the
quantum of punishment when there was
hardly any justification to exonerate the
petitioner of the charges of deliberate
concealment of important and sensitive
facts about his arrest etc in connection
with a criminal case.

17. On the facts and circumstances,
we find that the petition of the delinquent
employee does not have any force at all
and instead of granting relief in his favour
the petition itself should have dismissed.
We thus find that there is sufficient merit
in the appeal, which deserves to be
allowed.

18. This intra court appeal is
allowed with no order as to costs and the
judgment and order dated 10.9.2002
passed by the learned Single Judge is
hereby set aside. Respondent's petition is
hereby dismissed.
Appeal Allowed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 19.08.2004

BEFORE
THE HON'BLE TARUN AGARWALA, J.

Writ Petition No. 9774 of 2002

Krishna Kumar

...Petitioner
Versus
Assistant General Manager, State Bank
of India Kanpur & others ...Respondents

Counsel for the Petitioner:
Sri R.S. Chaudhary

Counsel for the Respondents:
Sri Vipin Sinha
Sri Ashish Srivastava
S.C.

Dying in Harness Rules-S.B.I. Scheme for
appointment on Compassionate groundsObject-Income of married brothers not
staying with the family not to be
included in income of family-Further,
income received from family pension and
interest from terminal benefits, held, not
to be included in income of family-Hence
respondents
directed
to
reconsider
petitioner's application for appointment