SANJEEV PRAKASH SHARMA, J. - (1.) Counsel for the petitioner submits that after the order having been passed on 17.10.1997 in review petition upholding the order of punishment dated 29.7.1995 and the order by which he was punished with stoppage of five grade increments with cumulative effect in a case registered under Section 409 IPC against the petitioner relating to the same incident, the petitioner has been acquitted and the evidence which has come on record before the Court hearing the criminal case, shows that the petitioner was not having the charge of the said revolver and, therefore, this Court ought to take into consideration the acquittal of the petitioner in a criminal case and the punishment of stoppage of five grade increments with cumulative effect ought to be set aside. Learned counsel relies on the judgment passed by the Supreme Court reported in (2006) SCCC 446- GM Tank Vs. State of Gujarat and Ors. to submit that once the petitioner has been honorably acquitted in a criminal case, the punishment awarded to him on the same set of charge in departmental proceedings ought to be set aside.
(2.) Learned Counsel appearing for the State opposes the aforesaid proposition and submits that the departmental enquiry is an independent proceeding where the charges levelled are also different in nature while in the criminal case, the concerned competent Court was examining whether the petitioner has committed offence under Section 409 IPC. The evidence which has been read in the criminal case cannot be taken into consideration to oust the evidence recorded during departmental proceedings. Learned Counsel further submits that there is an admission on the part of the accused petitioner in departmental proceedings of having taken over the charge of the said revolver.
(3.) I have heard learned Counsels at length and find that the order dated 16.02.1995 by which the petitioner has been punished with stoppage of five grade increments with cumulative effect has been passed on the basis of the two charges levelled against the petitioner; the first charge levelled against the petitioner was that while he was posted as Head Constable of the Kot and had taken over the charge on 11.9.1991, one revolver Webley and Scott 38 Bore No.50215 was under his charge was not found in the Kot. Subsequently the petitioner himself had informed the Superintendent information relating to the said missing of the arm. The second charge levelled was that a case has been registered against him under Section 380 IPC and under Section 7 and 8/25 of the Arms Act. With regard to the first charge, departmental enquiry was conducted and evidence was recorded. Witnesses have deposed stating of the revolver having been handed over from time to time. The disciplinary authority has reached to the conclusion that last time the revolver was handed over by Govind Ram, R.S.I to the petitioner who had himself deposited the same on 29.7.1991, therefore, if the disciplinary authority has found charge to be proved that when the revolver was lost the petitioner was having the charge of the said revolver, apparently there is a perversity in the order passed by the disciplinary authority as it is apparent from the charge-sheet issued to the petitioner that the petitioner was handed over the charge of the Kot on 11.9.1991. Thus on 29.07.1991 the petitioner could not be said to be having the charge of the Kot and he was not in a position to give a finding that the petitioner had taken over the charge of the revolver from Govind Ram on 29.07.1991. It is noticed that the petitioner in his reply to the charge-sheet as well as in the appeal has everywhere mentioned that he was not having the charge of the arms and ammunition on that day and only taken over the charge on 11.9.1991. A look at the order passed in review petition shows that the reviewing authority has taken a different stand that Trilok Chand was transferred on 18.03.1991 and the revolver had been taken lastly on 20.7.1991. Thereafter, the revolver was returned and deposited on 29.07.1991. However, the dates do not tally with the date on which the petitioner has taken over charge as it is noticed that even as per the review order the petitioner has taken over the charge from one Amar Chand, Head Constable on 11.9.1991. Thus, to hold the petitioner guilty of having the charge of the revolver is found to be not proved and is doubtful. Even in a case registered under Section 409 IPC no case is found to be proved against the petitioner. In the case of GM Tank (supra), the apex Court has held in para 16 as under:- "16. 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." A look at charge No.1 levelled against the petitioner and the charge framed against the petitioner in the criminal case show that both the charges are same. The petitioner has been acquitted in the criminal case though subsequently but even from the departmental proceedings I find that there is a perversity in the order holding the petitioner guilty of the arms having been lost while under his charge, although the charge of the Kot has been taken over by the petitioner only on 11.9.1991. ;