Himachal Pradesh High Court
Reserved On:26.05.2025 vs State Of H.P. & Others on 15 July, 2025
Author: Vivek Singh Thakur
Bench: Vivek Singh Thakur
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IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
CWPOA No.6579 of 2020
Reserved on:26.05.2025
.
Date of Decision: July 15, 2025
Daljeet Singh ...Petitioner.
Versus
State of H.P. & others ..Respondents.
Coram:
The Hon'ble Mr. Justice Vivek Singh Thakur, Judge.
The Hon'ble Mr. Justice Ranjan Sharma, Judge.
Whether approved for reporting?1
For the Petitioner: Mr.D.S. Nainta, Advocate.
For the Respondents: Mr.Varun Chandel, Additional Advocate
General.
Vivek Singh Thakur, J.
Petitioner had filed this petition as Original
Application No.1455 of 2019 before Erstwhile H.P. State
Administrative Tribunal. On abolition of erstwhile Tribunal, it was
transferred to this High Court and registered as present petition
CWPOA No.6569 of 2020.
2. Petitioner has approached the Court against his
dismissal from service as a consequence of major penalty
imposed upon him by the Authority under Rule 11 (ix) of Central
Civil Services (Classification, Control and Appeal) Rules, 1965
after 21 years of service by accepting Departmental Inquiry
Report conducted in pursuance to Office Order No.P-III(2)
1
Whether reporters of the local papers may be allowed to see the judgment?
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D.S./04-II/17756 dated 05.07.2004 (Annexure R-1) by Inquiry
Officer appointed by Director General of Police, H.P., Shimla, on
the charges that during surprise checking of Cash Chest, a sum
.
of `1,07,449/- was found short and there was unauthorized
absence of the petitioner on different occasions, for a total
period of 43 ½ days. At the relevant time, petitioner was posted
in 2nd India Reserve Batallion, Jungle Beri, as Junior Assistant.
3. After receiving finding from the Inquiry Officer, copy
of Inquiry Report was supplied to the petitioner alongwith Show
Cause Notice rdated 28.04.2007 which was subsequently
withdrawn on technical ground. Thereafter, vide memo dated
25.06.2007 (Annexure R-2) petitioner was directed to submit
representation, if any, against Inquiry Report, within fifteen days.
4. Petitioner had submitted representation against
finding of Inquiry Officer, but the same was considered to be
devoid of any merit by the Authority and consequently a Show
Cause Notice dated 07.11.2007 (Annexure R-3) was served upon
the petitioner proposing penalty of dismissal from service under
Rule 11(ix) of CCS (CCA) Rules, 1965 referring gravity of the
charge against the petitioner for violation of provisions of Rule 3
of CCS (Conduct) Rules, 1964 and CCS (Leave) Rules, 1972 by
accepting Inquiry Report with finding that following charges have
been proved against the petitioner:-
“(i) During his temporary posting in the office of
Commandant 2nd IRBn. Jungle Berry w.e.f. 10.4.01 to
13.6.03 on suspicion, a surprise checking of cash
chest was made and a sum of Rs. 1,07,449/- was
found short in the cash chest; and::: Downloaded on – 15/07/2025 21:20:51 :::CIS
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(ii) Sh.Daljeet Singh, Jr. Asstt. willfully absented
himself from his duty a number of times for total 43 ½
days (i.e. 44 days) during the period of 16.1.02 to
15.12.02.”
.
5. Petitioner had submitted his representation against
proposed penalty on 22.11.2007 which was rejected and
ultimately penalty of dismissal from service was imposed vide
order dated 07.12.2007 (Annexure A-1).
6. The aforesaid punishment order dated 07.12.2007
was assailed by the petitioner by filing Original Application
No.3154 of 2007 before erstwhile H.P. State Administrative
Tribunal.
7. Erstwhile Tribunal vide order dated 10.01.2008
directed the Principal Secretary (Home) to the Government of
Himachal Pradesh to treat O.A. as representation and decide the
same within eight weeks after giving personal hearing to the
applicant-petitioner.
8. At the same time, petitioner had also preferred
appeal dated 09.01.2008 to Principal Secretary (Home) to the
Government of H.P., under CCS CCA Rules against the impugned
order passed on conclusion of Departmental Inquiry. Therefore,
O.A./representation of the petitioner was disposed of on
12.11.2008 after giving him opportunity of personal hearing on
10.03.2008.
9. Appellate Authority [(Principal Secretary (Home) to
the Government of H.P.)] dismissed the appeal vide order dated
10.02.2009 (Annexure R-4).
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10. According to the respondents, the aforesaid order
was duly communicated to the petitioner vide letter dated
11.02.2009 (Annexure R-5).
.
11. Apart from Departmental proceedings, for alleged
misappropriation of Government money, a criminal case FIR No.9
of 2004 dated 09.01.2004 under Sections 409, 467 and 468 of
the Indian Penal Code was also registered against the petitioner
in Police Station Sujanpur, District Hamirpur, H.P. Petitioner was
subjected to trial before the Judicial Magistrate, First Class, Court
No.1, Hamirpur and was convicted for commission of offence
punishable under Sections 409, 467 and 471 of IPC vide
judgment dated 17.12.2012 and was sentenced to undergo
imprisonment for 3 years and pay fine of `5000/- for each
offence and in default of payment of fine, to further undergo
imprisonment for 7 days for each offence. All sentences were
ordered to run concurrently.
12. Against conviction, petitioner preferred Criminal
Appeal No.02 of 2013, before Sessions Judge, Hamirpur. The
Appellate Court (Sessions Judge) vide judgment dated
23.09.2017 (Annexure A-3) accepted the appeal and set aside
the judgment of the Trial Court, resulting into acquittal of the
petitioner of the offences charged against him.
13. According to petitioner, he was not aware about
passing of order dated 10.02.2009 whereby appeal, preferred by
the petitioner against Departmental action was dismissed as the
said order dated 10.02.2009 by the Appellate Authority [Principal
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Secretary (Home)] alleged to be communicated vide order dated
11.02.2009 (Annexure R-5), was never communicated to the
petitioner.
.
14. According to petitioner, he after acquittal in criminal
case by Sessions Judge, Hamirpur, for having information/fate of
his representation and appeal had submitted an application
dated 27.11.2017 under Right to Information Act, 2005 (in short
‘RTI Act‘) to get decision thereon by the Home Department
alongwith noting sheet.
15. In response to the application filed under RTI Act,
photocopies of notes on file and impugned order dated
10.09.2009 was supplied to the petitioner on 08.01.2018.
16. Thereafter, petitioner approached the Authority to
reinstate him by submitting representation dated 12.03.2018
(Annexure A-4) to DGP requesting his reinstatement w.e.f.
07.12.2007 with all consequential benefits.
17. In the meanwhile, State preferred Criminal Appeal
against judgment of acquittal of the petitioner by Sessions Judge
after delay of 218 days in filing the same in July 2018. Vide order
dated 29.10.2018 delay in filing the appeal was condoned and
appeal was admitted for hearing after assigning it registration
Number Cr.Appeal No.429 of 2018.
18. Aforesaid Cr.Appeal No.429 of 2018 has been
dismissed by the High Court on 18.08.2023.
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19. Grievance of the petitioner is that he was framed
wrongly and his 43 ½ days leave period had been regularized by
the respondent-Authority after treating the said period as dies
.
non vide office order dated 07.12.2007 issued by the DGP.
20. In reply filed in response to present petition,
aforesaid facts were admitted with submission that judgment of
acquittal passed by the Sessions Judge, had been assailed by the
respondent-Department by filing an appeal (Cr.Appeal No.429 of
2018) in the High Court, and the said appeal is pending
adjudication after admitting, and thus it was contended that, in
the given circumstances, representation (Annexure A-4)
preferred by the petitioner could not be decided till the final
outcome of the appeal pending adjudication before the High
Court and, thus, it was claimed that O.A. (present petition) was
not maintainable and at that stage it deserved to be dismissed.
21. As per reply of the respondent-State, on his
temporary deployment in 2nd IRBn w.e.f. 01.04.2001 to
13.06.2003 from State CID for looking after the work relating to
accounts under the supervision of Accountant in the office of
Superintendent of Police, Hamirpur, the petitioner was
discharging duties of Cashier in consonance with nature of duties
assigned to the petitioner.
22. On 10.07.2001, petitioner, for shifting of
Headquarter of 2nd IRBn from Hamirpur District to Jungle Beri,
petitioner was handed over cash amounting to `14,35,503/-.
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23. During surprise checking of cash chest by the
Competent Authority, `1,07,449/- were found short and
petitioner was also found absent on various dates unauthorizedly
.
on different occasions for 44 days.
24. At this stage, it is also relevant to record that though
no such objection was ever raised either before the erstwhile
Tribunal or in this Court either by filing reply or any other means
that present petition is not maintainable on account of being time
barred or on account of delay and laches, however, during hearing
learned Additional Advocate General, has raised this issue
whereupon Dispatch Register of the Principal Secretary (Home) was
summoned and photocopy of relevant page was retained.
25. In afore Register, on 11.02.2009, 16 letters have
been entered to have been dispatched/sent to various offices
and authorities from the Department of Home. At Sr. No.16 letter
No.Home (A)E(3)-106/2007 is stated to have been sent to
learned Additional Advocate General. Though below it, it has also
been written C/O Daljit Singh son of late Sh.Jaswant Singh,
Rakkar, Kangra, but this entry appears to have been made
lateron because letter No. Home(A)E(3)-3/2009 at Sr. No.3, was
sent to Superintendent of Police, Nalagarh and copy thereof was
sent to the Advocate General, Himachal Pradesh, but making
separate entry in this regard with separate dispatch at Sr. No.4.
26. Similarly, letter No. Home(A)C(5)-5/2008 was sent to
various offices, including Senior Deputy Accountant General
(ASE) H.P., Accountant General (Audit), H.P., Shimla and Senior
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Accountant General (A & E) H.P. on 11.02.2009. In this matter
also, first letter was mentioned at Sr.No.5 and other
letters/copies of letters were recorded and mentioned at Sr.
.
Nos.6, 7 and 8 by writing “-do-“, “-do-“, “-do-” in place of letter
numbers by mentioning corresponding authorities against Serial
Numbers in the third column. Whereas, in case of petitioner ‘-
do-‘ word has not been written but only O/O has been mentioned
and thereafter, name of Daljeet Singh has been shown against it,
but there is no Serial Number of this entry.
27. It is also relevant to notice that not only instead of “-
do-” word “O/O” has been written below the entry at Sr.No.16 in
the bottom. Further that Dealing Hand/Peon of the Dispatch
Branch has endorsed receipt of 16 letters. Whereas, including
letter alleged to have been sent to Daljeet Singh, there should
have been 17 letters particularly when in other case(s) copy of
the same letter while sent to different offices/persons, has been
entered separately by assigning separate number for the
purpose of dispatching the said letter to the concerned
Authorities/Offices. Therefore, plea of learned Additional
Advocate General that communication of rejection of
representation/appeal was communicated to the petitioner on
11.02.2009 has not been substantiated by contemporary record
and, thus, plea of learned Additional Advocate General to reject
the petition being time barred or on account of delay and laches,
is not sustainable.
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28. Though acquittal in criminal case cannot be a ground
to absolve or exonerate in Departmental Inquiry because in both
proceedings different standard of proof is required to establish
.
and substantiate case of the prosecution/ Department, however,
it is stand of the State that representation of the petitioner to
reinstate him could not be considered and decided till final
outcome of the appeal pending adjudication before the High
Court.
29. Neither petitioner nor State has placed on record
Inquiry Report.r
30. Plea of Additional Advocate General, based on stand
of the State in reply, is that representation preferred by the
petitioner (Annexure A-4) could not be decided till the final
outcome of the appeal pending adjudication before the High
Court of Himachal Pradesh.
31. It is also apt to record that Criminal Appeal No.429 of
2018 preferred by the State has been dismissed vide judgment
dated 18.08.2023 passed by a Division Bench of this High Court,
authored by Mr.Justice Ranjan Sharma, Judge. For stand taken by
the State, following paragraphs of the said judgment may be
relevant to quote here:-
9. ANALYSIS: QUA CHARGE UNDER SECTION 409 IPC
9(i). At the very outset, we proceed to test the ve-
racity of the prosecution story that the accused mis-
appropriated a sum of Rs.1,88,916/-, which was en-
trusted to him, as the balance was in fact
Rs.5,42,559/- but he showed this amount as
Rs.3,53,643/-.
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8(ii). From the very inception, PW-1 ( R.M.Sharma)
has generated a doubtful story by testifying that an
amount of Rs.1,88,916/- has been misappropriated
by accused or by ASI Kuldeep Chand when ASI
Kuldeep Chand was not produced/examined.
However, prosecution examined PW-8 (Kamlesh
Kumari), who deposed that her husband Kuldeep
.
Singh Rana had died on 18.05.2004. Even the F.I.R.
pertaining to the incident of the year 2001 was
registered on 9.1.2014, vide Ex.PW16/A, at the
instance of PW-1 (R.M.Sharma), who was erstwhile
Commandant of 2nd Indian Reserve Battalion, Jangal
Bairi. PW-1 (R.N.Sharma) is not certain about the
alleged amount as on one hand, he testifies that an
amount of Rs.1,88,916/- has been misappropriated
but at the same time he deposes that the
misappropriated amount was Rs.1,83,000/- and
further testifies that as per audit report Ex.PW-2/A,
the net shortage was of Rs.1,86,692/-.
8(iii). PW-6 (H.C Krishan Kumar), who admits to be
the Cashier of S.P. Office, Hamirpur as well as of the
office of Commandant 2nd Indian Reserve Battalion,
Jangal Bairi, has deposed that as per the Road
Certificate No.15/2001 dated 10.07.2001, Ex. P-1, an
amount of Rs.14,35,803/- was handed over to
accused as per details in Ex. P-2. He further admits
that Expenditure Sheet, i.e. Ex. PW-1/B, have been
prepared by him. He stated that he handed over the
records i.e. Ex. P-1 to Ex.P-5 and Ex.PW-1/B to the
Police on 07.02.2004. Statement of PW-6 (HC Krishan
Kumar) aggravates the doubt(s) in the prosecution
story in view of the fact that on one hand he deposes
that as per Road Certificate No.16/2001 dated
16.07.2001, Ex. P-3, an amount of Rs.1,88,916/- was
sent by him to accused-Daljeet Singh but this amount
was returned to him by the accused as per Road
Certificate No.1/2001 dated 11.10.2001, Ex.P-4. He
further deposes that as per Road Certificate
No.142/2001 dated 11.10.2001, Ex.P-5, an amount of
Rs.12,46,887/- was sent by him (PW-6, Krishan
Kumar) to the accused-Daljeet Singh, but he further
states that Ex.P-5 was cancelled; which lacks
credence as the cancellation qua Ex.P-5 was not
proved. Additionally, PW-6 (Krishan Kumar) has
deposed that on 03.07.2003 i.e. Ex. P-22/F, he had
deposited a sum of Rs.1,88,916/- creates suspicion
when, no material has been proved to justify as to
who gave this amount to PW-6, at whose instance, on
which date and for what purpose because it is highly
improbable that why did he deposit the amount, if
not, misappropriated by him. No records of penalty
allegedly imposed on PW-6, Krishan Kumar, were
produced. Moreover, PW-6 himself admits that he
was the Cashier on relevant time and even a perusal
of Ex. P-5 and Ex. P-22/F also negates the
prosecution story as PW-6, being Cashier had
remitted only Rs.12,46,887/- but misappropriated
Rs.1,88,916/- (deposited subsequently).
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8(iv). The prosecution has also failed to prove
whether this amount of Rs.1,88,916/- was a part of
the amount of Rs.14,35,803/- (as in Ex. P-1, Ex.P-2
and Ex. PW-1/B) or was part of an amount of
Rs.1,88,916/-, which was returned by accused on
11.10.2001, Ex. P-4 or was part of an amount of
.
Rs.1,88,916/-, which was deposited by PW-6 (HC
Krishan Kumar) on 03.07.2003, Ex.P-22/F or was an
amount in addition to amount of Rs.12,46,887/-, Ex.P-
5 (supra). The prosecution has failed to produce the
cash book and the ledger(s), which were duly
maintained and inspected by higher authorities. The
prosecution has failed to establish entrustment and
the dishonest intention of the accused in alleged
misappropriation when, it is PW-6, Krishan Kumar,
who being the Cashier at relevant time, who had
misappropriated this amount, which admittedly was
deposited by him on 03.07.2003, Ex.P-22/F. In
absence of any proof of entrustment; dishonest
intention to misappropriate and violation of any
direction of law or any legal contract, the entire
prosecution story is untrustworthy, lacks credence, is
doubtful and needs to be discarded.
10. Besides the above, the prosecution story
suffers from serious and material inherent
contradictions, which as detailed here-in-below:-
10(i). DISCREPANCY WITH RESPECT TO AMOUNT
ALLEGEDLY MISAPPROPRIATED:
A perusal of F.I.R. Ex.PW-1/A and the charge
framed on 6.7.2007 by learned Trial Court, specifically
alleges that the respondent-accused hasmisappropriated an amount of Rs.1,88,916/-, which is
in total contradiction to the audit report dated5.6.2003 Ex.PW-2/A whereby the net shortage of
funds of minor work was shown to be Rs.1,86,692/-. In
addition to this, an amount of Rs.1,86,692/- has been
shown as alleged shortage in para 8 of the instantappeal. In view of these material contradiction(s) the
entire prosecution story that the respondent-accused
has misappropriated an amount of Rs.1,88,916/- is
under shadow of doubt.
10(ii) DISCREPANCY REGARDING PERSONS AL-
LEGEDLY INVOLVED IN MISAPPROPRIATION:
PW-1, R.M.Sharma, who was the then
Superintendent of Police, Hamirpur, and was also
holding the additional charge of Commandant, 2nd
Indian Reserve Battalion, Jangal Bairi, has specifically
deposed that the alleged misappropriation was done
by the respondent-accused herein or by the
Accountant ASI Kuldeep Chand in collusion with each
other. The prosecution has failed to examine the
aforesaid ASI Kuldeep Chand. However, a perusal of
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12 2025:HHC:22801one Sh. Kuldeep Singh Rana, ASI, expired on
18.04.2004. In absence of any proof of charge, mere
statement of PW-1, cannot be taken as gospel truth.
10(iii) PROSECUTION STORY BASED ON AUDIT RE-
PORT:
.
In Audit Report Ex.PW-2/A, dated 5.6.2003 the
net-shortage was shown of Rs.1,86,692/- which is in
total variance to the alleged misappropriated amount
of Rs.1,88,916/-. In addition to this, the Audit Report
Ex.PW-2/A cannot be used against the accused when,
the Section Officer, who conducted the aforesaidaudit, had neither associated nor he had issued any
notice to the accused to participate during audit.
Even the accused was not apprised of the records
which were relied upon by audit. Thus, the audit
conducted behind the back of accused cannot berelied upon against the accused.
10(iv). DEPOSIT AND RETURN OF Rs.1,88,916/-
A perusal of Ex.P-3, Road Certificate reveals
that though the amount of Rs.1,88,916/- was sent to
r the Accounts Branch and handed over to accusedDaljeet Singh but a perusal of Ex.P-4 dated
11.10.2001 i.e. the Road Certificate undoubtedly
establishes that Rs.1,88,916/- was returned by the
accused to the Incharge Accounts, S.P.Office. In view
of this, once the alleged amount was returned to the
Incharge Accounts, S.P.Officer, Hamirpur then, the
entire prosecution story as contained in F.I.R. i.e.
Ex.PW-1/A and the charges framed on 6.7.2001 falls
to the ground.
10(v). DEPOSIT OF Rs.1,88,916/- BY PW-6 KRISHAN
KUMAR:
In cross-examination PW-1 (R.M.Sharma)
admits that Rs.1,88,916/- was deposited by PW-6 (H.C
Krishan Kumar), which is also admitted by PW-6 incross-examination that he had deposited the amount
of Rs.1,88,916/- on 3.7.2003 vide Ex.PW-22/F. A
perusal of the statement of PW-6 further reveals that
this amount was deposited as the head of department
had imposed a penalty on him. This statement of PW-
6 creates doubt with respect to the factum and
rational behind the deposit of this amount. Had any
department proceedings and penalty been imposed
for which the aforesaid amount of Rs.1,88,916/- was
deposited by PW-6, then, the prosecution was duty
bound to examine the records and to corroborate the
veracity of such statement as to whether the
aforesaid amount was deposited was result of penalty
so imposed or not. In absence of any such
collaboration, the deposition of PW-6 that the amount
so deposited in lieu of penalty is unbelievable.
However, once the amount of Rs.1,88,916/- has
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admittedly been deposited then, prosecution story
alleging misappropriation is without any foundation
leading the prosecution edifice to consequently fall.
10(vi). DEPOSIT OF AMOUNT BEFORE F.I.R.
A perusal of F.I.R. Ex.PW-1/A, reveals that it
.
was registered as F.I.R. No. 9 of 2004 dated 9.1.2004,
whereas Ex.PW-2/F dated 3rd July, 2003 proves on
record that the amount of Rs.1,88,916/- had already
been deposited by PW-6 Krishan Kumar before the
registration of F.I.R. and therefore the basis of
criminal breach of trust cannot in any manner be
attributed to the accused herein.
10(vii). BILLS-PAYMENTS RELEASED UNDER AUTHORITY OF
DDO.
Moreover, a perusal of the records i.e. the bills
under which the disbursement of amount was made
were drawn under the signature of D.D.O, but the
prosecution has not made any attempt to produce the
DDO(s) to prove its case. Thus, non-cross-
r examination of material witnesses i.e. DDO’s is
sufficient to disbelieve the prosecution story which
has no foundation.
10(viii). EXPLANATION OF ACCUSED UNDER SECTION 313
CR.P.C.
Even the explanation given by the accused, un-
der Section 313 Cr.P.C. disproves the case of prosecu-
tion, whereby the accused has specifically stated that
PW-6 (HC Krishan Kumar), who was cashier, had mis-
appropriated the alleged amount of Rs.1,88,916/-.
11. ANALYSIS QUA CHARGE UNDER SECTIONS 467, 468 AND
471 IPC
11(i). The appellant-State in order to find a bird in
the sky has relied upon FSL report i.e. Ex.PW-24/J, to
show that in Expenditure Statement, Ex.PW-1/B,
Questioned Item i.e. Q-5 therein regarding Entry No.5
of Rs.1,88,196/- was inserted by the accused. This
reliance is without any merit when the FSL i.e.
Scientific Officer, Document and Photo Division, SFSL,
Junga, H.P. has opined in Ex.PW24/J that it has not
been possible to express any opinion regarding the
authorship of Questioned Item Q-5, due to non-
availability of similar material for comparison. Once
the authorship of Questioned Item Q-5 remains
unanswered, even by the expert, then, the
prosecution story and the accusation that an amount
of Rs.1,88,916/- was misappropriated by the accused
is without any substance. In addition to this, the
provisions of Section 47 of the Indian Evidence Act,
1872 mandates that that an opinion as to the person
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by whom any document was written or signed can
only be formed by proving the same on the basis of
opinion of any person acquainted with the
handwriting of the person by whom it is supposed to
be written or signed. In the instant case, once the
prosecution has failed to examine any person, who
could prove, the averments in Questioned Item Q-5,
.
then, the prosecution story and the accusation has
rightly not been held to be not proved, against the
accused.
11(ii). Thus the offence(s) under Sections 467, 468
and 471 of the Indian Penal Code are not made out on
facts and in law.”
32. In present case, criminal case was registered and
trial was conducted on the basis of the same charges and
evidence on record for short fall of `1,07,449/- in the chest and
for unauthorized absence. So far as absence of 43 ½ days is
concerned, in this regard plea of the petitioner is that the same
was treated as dies non vide order dated 07.12.2007 issued by
DGP, has not been disputed in reply and, therefore, the said
period deserves to be regularized.
33. Once Competent Authority instead of punishing an
employee has treated the period of absence as dies non, it
should be construed that the said absence was not willful or
intentional. In this regard, it is also relevant that in information
supplied under RTI by the respondent, it has been recorded that
petitioner had applied for Medical Leave on various occasions.
Unless absence is willful or intentional, causing doubt to the
integrity/devotion of duties, an employee cannot be punished
that too with penalty of dismissal from service. In this regard,
following observations of judgment of Supreme Court in
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Krushnakant B. Parmar vs. Union of India and another, (2012) 3
SCC 178, are relevant:-
“15. Rule 3(1)(ii) and Rule 3(1)(iii) of Central Civil
Services (Conduct) Rules, 1964, relates to all time.
maintaining integrity, devotion to duty and to do
nothing which is unbecoming of a Governmentservant and reads as follows:
“Rule 3 – General.
(1) Every Government servant shall at all times–
(i) maintain absolute integrity;
(ii) maintain devotion to duty; and
(iii) do nothing which is unbecoming of a
Government servant.”
16. In the case of appellant referring to
unauthorised absence the disciplinary authority
r alleged that he failed to maintain devotion of duty
and his behaviour was unbecoming of a Government
servant. The question whether unauthorised absence
from duty’ amounts to failure of devotion to duty or
behaviour unbecoming of a Government servant
cannot be decided without deciding the question
whether absence is wilful or because of compelling
circumstances.
17. If the absence is the result of compelling
circumstances under which it was not possible to
report or perform duty, such absence can not be held
to be wilful. Absence from duty without any
application or prior permission may amount to
unauthorised absence, but it does not always mean
wilful. There may be different eventualities due to
which an employee may abstain from duty, including
compelling circumstances beyond his control like
illness, accident, hospitalisation, etc., but in such case
the employee cannot be held guilty of failure of
devotion to duty or behaviour unbecoming of a
Government servant.
18. In a Departmental proceeding, if allegation of
unauthorised absence from duty is made, the
disciplinary authority is required to prove that the
absence is wilful, in absence of such finding, the
absence will not amount to misconduct.
19. In the present case the Inquiry Officer on
appreciation of evidence though held that the
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appellant was unauthorisedly absent from duty but
failed to hold the absence is wilful; the disciplinary
authority as also the Appellate Authority, failed to
appreciate the same and wrongly held the appellant
guilty.
.
20.The question relating to jurisdiction of the Court in
judicial review in a Departmental proceeding fell for
consideration before this Court in M.V. Bijlani v. union
of India, (2006) 5 SCC 88 wherein this Court held:
“It is true that the jurisdiction of the court in
judicial review is limited. Disciplinary
proceedings, however, being quasi- criminal in
nature, there should be some evidence to
prove the charge. Although the charges in a
departmental proceeding are not required to
be proved like a criminal trial i.e. beyond allreasonable doubt, we cannot lose sight of the
fact that the enquiry officer performs a quasi-
judicial function, who upon analysing the
documents must arrive at a conclusion that
there had been a preponderance of probability
r to prove the charges on the basis of materials
on record. While doing so, he cannot take intoconsideration any irrelevant fact. He cannot
refuse to consider the relevant facts. He cannot
shift the burden of proof. He cannot reject the
relevant testimony of the witnesses only on the
basis of surmises and conjectures. He cannotenquire into the allegations with which the
delinquent officer had not been charged with.”
21. In the present case, the disciplinary authority
failed to prove that the absence from duty was wilful,
no such finding has been given by the Inquiry Officer
or the Appellate Authority. Though the appellant had
taken a specific defence that he was prevented from
attending duty by Shri P. Venkateswarlu, DCIO,
Palanpur who prevented him to sign the attendance
register and also brought on record 11 defence
exhibits in support of his defence that he was
prevented to sign the attendance register, this
includes his letter dated 3rd October, 1995 addressed
to Shri K.P. Jain, JD, SIB, Ahmedabad, receipts from
STD/PCO office of Telephone calls dated 29th
September, 1995, etc. but such defence and evidence
were ignored and on the basis of irrelevant fact and
surmises the Inquiry Officer held the appellant guilty.
… … …
24. In the result, the appeal is allowed. The impugned
orders of dismissal passed by disciplinary authority,
affirmed by the Appellate Authority; Central
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Administrative Tribunal and High Court are set aside.
The appellant stands reinstated.
34. In Kailash Nath Gupta vs. Enquiry Officer, (R.K. Rai),
Allahabad Bank and others, (2003) 9 SCC 480, Supreme Court
.
has observed as under:-
6. We have carefully examined the submissions
made by the learned counsel for the parties. The HighCourt did not go into the question as to whether the
order of removal of the appellant from service was
grossly disproportionate in view of the decision of this
Court in State of Bank of India v. Samarendra Kishore
Endow, (1997) 7 SCC 463.
r 7.
This Court in Union of India & Anr. vs.
G.Ganayutham [(1997 7 SCC 463] considered the
question whether judicial review powers
administrative law permit the High Courts or the
administrative tribunals to apply the principle of
in
“proportionality”. In the said judgment, reference is
made to leading cases in England and also to the
rulings of this Court touching the question of
“proportionality”. In para 15, reference is made to the
case of Ranjit Thakur vs. Union of India & Ors. [(1987)
4 SCC 611). In that case, after finding the appellant
guilty in court martial, he was dismissed from service
and a sentence of imprisonment was also imposed as
permitted by Army Act. While quashing the said
punishment on the ground that it was “strikingly
disproportionate”, this Court, in para 25 observed
thus:-
“25…. The question of the choice and
quantum of punishment is within thejurisdiction and discretion of the court-martial.
But the sentence has to suit the offence and
the offender. It should not be vindictive or
unduly harsh. It should not be so
disproportionate to the offence as to shock the
conscience and amount in itself to conclusive
evidence of bias. The doctrine of
proportionality, as part of the concert of
judicial review, would ensure that even on an
aspect which is, otherwise, within the
exclusive province of the court-martial, if the
decision of the court even as to sentence is an
outrageous defiance of logic, then the
sentence would not be immune from
correction. Irrationality and perversity are
recognized grounds of judicial review.”
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8. In the said case, the “doctrine of
proportionality” was treated as part of judicial review
in administrative law.
9. A Bench of three learned Judges of this Court in
B.C.Chaturvedi vs. Union of India & Ors. (1995) 6 SCC
749, while dealing with the power to interfere with the
.
punishment imposed by the disciplinary authority, in
para 17, stated thus (SCC pp.761-62):-
“17. The next question is whether the
Tribunal was justified in interfering with thepunishment imposed by the disciplinary
authority. A Constitution Bench of this Court in
State of Orissa vs. Bidyabhushan Mohapatra
(AIR 1963 SC 779) held that having regard to
the gravity of the established misconduct, the
punishing authority had the power andjurisdiction to impose punishment. The penalty
was not open to review by the High Court
under Article 226. If the High Court reached a
finding that there was some evidence to reach
the conclusion, it became unassessable. The
r order of the Governor who had jurisdiction and
unrestricted power to determine theappropriate punishment was final. The High
court had no jurisdiction to direct the Governor
to review the penalty. It was further held that if
the order was supported on any finding as to
substantial misconduct for which punishment“can lawfully be imposed”, it was not for the
Court to consider whether that ground alone
would have weighed with the authority in
dismissing the public servant. The Court had nojurisdiction, if the findings prima facie made
out a case of misconduct, to direct the
Governor to reconsider the order of penalty.
This view was reiterated in Union of India vs.
Sardar Bahadur (1972) 4 SCC 618. It is true
that in Bhagat Ram vs. State of H.P. (1983) 2
SCC 442 a Bench of two Judges of this Court,while holding that the High Court did not
function as a court of appeal, concluded that
when the finding was utterly perverse, the High
court could always interfere with the same. In
that case, the finding was that the appellant
was to supervise felling of the trees which were
not hammer marked. The Government had
recovered from the contractor the loss caused
to if by illicit felling of trees. Under those
circumstances, this Court held that the finding
of guilt was perverse and unsupported by
evidence. The ratio, therefore, is not an
authority to conclude that in every case the
Court/Tribunal is empowered to interfere with
the punishment imposed by the disciplinary
authority. In Rangaswami vs. State of T.N.
(1989) supp. 1 SCC 686, a Bench of three::: Downloaded on – 15/07/2025 21:20:51 :::CIS
19 2025:HHC:22801Judges of this Court, while considering the
power to interfere with the order of
punishment, held that this Court, while
exercising the jurisdiction under Article 136 of
the Constitution, is empowered to alter or
interfere with the penalty; and the Tribunal had
no power to substitute its own discretion for.
that of the authority. It would be seen that this
Court did not appear to have intended to lay
down that in no case, the High Court/Tribunal
has the power to alter the penalty imposed by
the disciplinary or the appellate authority. The
controversy was again canvassed in State Bank
of India case where the Court elaborately
reviewed the case law on the scope of judicial
review and powers of the Tribunal in
disciplinary matters and nature of punishment.
On the facts in that case, since the appellate
authority had not adverted to the relevant
facts, it was remitted to the appellate authority
to impose appropriate punishment.”
10. It is also further stated in the same judgment
r that: (SCC p.762, para 18)
“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 authority/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.”
35. Learned Additional Advocate General has referred
judgment in Mahinder Dutt Sharma vs. Union of India and others,
(2014) 11 SCC 684, but the said judgment is not applicable in
present case as issue involved therein was as to whether after
dismissal from the service, in furtherance to the Departmental
Inquiry, the employee was entitled for compassionate allowance
under Rule 41 of the CCS Leave Rules, 1972 or not.
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36. Learned Additional Advocate General has also placed
reliance on judgment passed by the Punjab High Court in
Hardeep Singh vs. State of Punjab and others, dated 16.02.2024
.
in CWP No.28436 of 2018, wherein question related to persons
who were convicted and awarded sentence was involved and the
Court had observed that on the ground of parity, High Court
cannot ask the respondents to violate the mandate of law.
37. Following observation made in Ram Lal vs. State of
Rajasthan and others, (2024) 1 SCC 175, would be relevant:-
“Questions for consideration:
8. The following two questions arise for consideration:
8.1.(a) Whether the dismissal of the appellant from service
pursuant to the departmental enquiry was justified?
8.2.(b) On the facts of the case, what is the effect of the
acquittal, ordered by the Appellate Judge in the criminal trial,
on the order of dismissal passed in the departmentalenquiry?
... ... ...
Legal Position:
10. We have examined both the questions independently.
We are conscious of the fact that a writ court’s power to
review the order of the Disciplinary Authority is very limited.
The scope of enquiry is only to examine whether the
decision-making process is legitimate. (See SBI vs. A.G.D.
Reddy, (2023) 14 SCC 391. As part of that exercise, the
courts exercising power of judicial review are entitled to
consider whether the findings of the Disciplinary Authority
have ignored material evidence and if it so finds, courts are
not powerless to interfere. (See United Bank of India vs.
Biswanath Bhattacharjee, (2022) 13 SCC 329).
11. 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).
12. However, if the charges in the departmental enquiry and
the criminal court are identical or similar, and if the
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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 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)].
… … …
Effect of Acquittal in the Criminal Proceeding – Question No. 2:
25. With this above background, if we examine the criminal
proceedings the following factual position emerges. The verysame witnesses, who were examined in the departmental
enquiry were examined in the criminal trial. Jagdish Chandra,Bhawani Singh, Shravan Lal, Raj Singh and Karan Sharma
were examined as PW2, PW3, PW6, PW9 and PW13
respectively at the criminal trial. Apart from them, eight
other witnesses were also examined. The gravamen of thecharge in the criminal case was that the appellant had
submitted an application for recruitment along with his
marksheet and he, by making alteration in his date of birth
to reflect the same as 24.04.1972 in place of 21.04.1974,and obtained recruitment to the post of Constable.
26. Though the Trial Court convicted the appellant under
Section 420 of IPC, the Appellate Court recorded the
following crucial findings while acquitting the appellant:
“Mainly the present case was based on the
documents to this effect whether the date of birth of
accused is 21.04.1972 or 21.04.1974. Exh. P-3 is
original Marksheet, in which, the date of birth of
accused has been shown as 21.04.1972 and same has
also been proved by the witnesses examined on
behalf of the prosecution. Whatever the documents
have been produced before the Court regarding the
date of birth of 21.04.1974 are either the letters of
Principal or are Duplicate T.C. or Marksheets. Neither
the prosecution has produced any such original
documents in the Subordinate Court to this effect that
when the admission form of accused was filled, what
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what was the date of birth in Roll Register of School,
what date of birth was mentioned by accused in the
Examination Form of Secondary, and nor after
bringing the original records from the concerned
witnesses, same were got proved in the evidence. In
these circumstances, this fact becomes doubtful that
.
date of birth of accused was 21.04.1974, and accused
is entitled to receive it’s benefit. In the considered
opinion of this Court, the conviction made by the Ld.
Subordinate Court merely on the basis of oral
evidences and letters or duplicate documents, is not
just and proper. It is justifiable to acquit the accused.
Resultantly, on the basis of aforesaid
consideration, the present appeal filed by the
Appellant/Accused is liable to be allowed.”
(Emphasis supplied)
27. What is important to notice is that the Appellate Judge
has clearly recorded that in the document Exh. P-3 – original
marksheet of the 8th standard, the date of birth was clearly
shown as 21.04.1972 and the other documents produced by
the prosecution were either letters or a duplicate marksheet.
No doubt, the Appellate Judge says that it becomes doubtful
whether the date of birth was 21.04.1974 and that the
accused was entitled to receive its benefit. However, what
we are supposed to see is the substance of the judgment. A
reading of the entire judgment clearly indicates that the
appellant was acquitted after full consideration of the
prosecution evidence and after noticing that the prosecution
has miserably failed to prove the charge [(See S.
Samuthiram (Supra).]
28. Expressions like “benefit of doubt” and “honorably
acquitted”, used in judgments are not to be understood as
magic incantations. A court of law will not be carried away
by the mere use of such terminology. In the present case,
the Appellate Judge has recorded that Exh. P-3, the original
marksheet carries the date of birth as 21.04.1972 and the
same has also been proved by the witnesses examined on
behalf of the prosecution. The conclusion that the acquittal
in the criminal proceeding was after full consideration of the
prosecution evidence and that the prosecution miserably
failed to prove the charge can only be arrived at after a
reading of the judgment in its entirety. The court in judicial
review is obliged to examine the substance of the judgment
and not go by the form of expression used.
29. We are satisfied that the findings of the appellate judge
in the criminal case clearly indicate that the charge against
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the appellant was not just, “not proved” – in fact the charge
even stood “disproved” by the very prosecution evidence. As
held by this Court, a fact is said to be “disproved” when,
after considering the matters before it, the court either
believes that it does not exist or considers its non-existence
so probable that a prudent man ought, under the
.
circumstances of the particular case, to act upon the
supposition that it does not exist. A fact is said to be “not
proved” when it is neither “proved” nor “disproved” [See
Vijayee Singh and Others v. State of U.P. (1990) 3 SCC 190].
30. We are additionally satisfied that in the teeth of the
finding of the appellate Judge, the disciplinary proceedings
and the orders passed thereon cannot be allowed to stand.
The charges were not just similar but identical and the
evidence, witnesses and circumstances were all the same.
This is a case where in exercise of our discretion, we quash
the orders of the disciplinary authority and the appellate
authority as allowing them to stand will be unjust, unfair and
oppressive. This case is very similar to the situation that
arose in G.M. Tank (supra).”
38. In present case, in conclusion of Cr.Appeal No.429 of
2018, Division Bench of this High Court has observed that
prosecution failed to prove charges against the accused
regarding alleged misappropriation, criminal breach of trust,
forgery of records and ingredients of Section 471 of IPC. It has
also come on record of criminal case that PW.6 Krishan Kumar
was Cashier and he was the person who had misappropriated
alleged amount of `1,88,916/-. Further that perusal of record,
i.e. bills by which disbursement of amount was made, was drawn
under the Signatures of DDO, but DDO was never produced to
prove the case. It has also come on record that `1,88,916/- had
already been deposited by PW.6 Krishan Kumar before
registration of FIR. It is pertinent to record that except the
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petitioner, no other person including DDO was subjected to
inquiry or criminal proceedings.
39. It has also been submitted on behalf of the petitioner
.
that in any case, if this Court does not intend to interfere in the
findings returned by the Inquiry Officer accepted by the
Disciplinary Authority with respect to the first charge then also,
keeping in view unblemished 21 years of service of the petitioner
and family members depending upon him as well as the fact that
in criminal case it has been clearly surfaced that there was
nothing to substantiate charge imposed upon the petitioner,
petitioner, instead of ousting from service by of dismissal, is
directed to be treated to have been retired compulsorily.
40. In aforesaid facts and circumstances, we are of the
considered opinion that even if, it is construed that on acquittal
in criminal case petitioner was not entitled for reinstatement, as
he has been dismissed from the service, in furtherance to inquiry
conducted by the Department then also, penalty imposed upon
the petitioner is highly disproportionate particularly keeping in
view his length of service of more than 21 years.
41. Taking into consideration entire facts and
circumstances and the fact that petitioner is out of job since
07.12.2007 and he is agitating for his cause since December
2007 and present petition is pending since January 2014, and
now petitioner is stated to have attained age of superannuation
on 31.03.2025, therefore, keeping in view peculiar circumstances
and trauma of conviction as well as dismissal faced by the
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petitioner rather we are not remitting the proceedings to
Disciplinary Authorities for any further action, but we close the
matter with direction that the punishment imposed upon the
.
petitioner qua dismissal from the service is converted into
compulsory retirement with all consequential benefits.
42. Petition is allowed and disposed of in aforesaid term.
Pending application(s), if any, also stand disposed of.
(Vivek Singh Thakur),
Judge.
(Ranjan Sharma),
Judge.
July 15, 2025
(Purohit)
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