No relief from HC to prison guard carrying brown sugar in jail

The Bombay High Court has refused to interfere with a 2008 order of Maharashtra Administrative Tribunal (MAT) confirming departmental penal action of stopping increment for three years in case of a prison guard who was found carrying 40 grams of brown sugar at Yerwada central prison in Pune more than a decade ago.
The guard claimed that he was acquitted by the trial court and hence the departmental action of imposing penalty of stopping increment was not legally justified.
A division bench, however, held, "merely because a government servant may have been acquitted in criminal prosecution, that by itself, is neither a bar to commence departmental proceedings nor a bar to hold the charges in the departmental enquiry, as proved.

"The Enquiry Officer, the disciplinary authority and the appellate authority have correctly appreciated the position in this regard and confirmed findings that the charge levelled against the petitioner stands proved. The MAT has also appreciated the material on record as well as the legal position and declined to interfere with the penalty imposed upon the petitioner," a bench of Justices V M Kanade and M S Sonak observed in a recent order.
The bench also held that the charge levelled against the prison guard was "quite serious".
Shankar Shivaji Khuspe was charged with smuggling narcotics substance in jail premises. However, he was acquitted by the special NDPS court on October 30, 2007.

During the trial, however, departmental action was taken against him by stopping his increment for three years following which he challenged the same before MAT which later confirmed penal step against the prison guard and dismissed his plea.

Being aggrieved, he moved the High Court which declined to set aside the MAT order.
The lawyer of prison guard, Nitin Dalvi, submitted that the foundation of the charge in the disciplinary proceedings and foundation of charge in the NDPS prosecution launched against the petitioner was one and the same.
The High Court, however, held, "We are satisfied that
there is no substance in the contentions raised by advocate Dalvi on behalf of the petitioner. The charge levelled against him is quite a serious one, in that, the petitioner was found in possession of brown sugar weighing 40 grams at the gate of Yervada Central Prison, where, he was posted as a guard."

The High Court further said that if the judgement of the NDPS court of October 30, 2007 is perused, it would be observed that it is not the case of clear acquittal of the petitioner as he was granted benefit of doubt by trial court.
"That apart, it is well settled that the scope and object of criminal proceedings and departmental proceedings is distinct and different. In criminal proceedings, prosecution is required to prove the charge beyond reasonable doubt. Conviction in a criminal prosecution might result in curtailment of liberty. In contrast, the standard of proof in departmental proceedings is only preponderance of probabilities," the HC observed.

Adverse findings in departmental proceedings, might result in imposition of penalty, which may range from, minor penalty like the one awarded to the petitioner in the present case or penalty of dismissal, the bench observed.
"Merely because a government servant may have been acquitted in criminal prosecution, that by itself, is neither a bar to commence departmental proceedings nor a bar to hold the charges in the departmental enquiry, as proved," the Judges remarked.
"In the present case, there is no complaint of any violation of principles of natural justice in the course of the departmental proceedings. There is no question of disproportionate penalty, particularly because, we are satisfied that the minor penalty, with which, the petitioner has got away is in fact not proportionate to the charge which is held as proved against him," the Judges further observed.

The Judges said, "It must be remembered that the petitioner is a prison guard and normally, there is no question of leniency, when, charge of attempting to smuggle narcotic substances is held as proved. Possibly, minor penalty has been imposed, taking into consideration some mitigating circumstances, which are not evident from the record. Be that as it may, we are satisfied that no case whatsoever has been made out to interfere with the impugned order.