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2001 DIGILAW 323 (PAT)

Subhas Chandra Yadav v. State Of Bihar

2001-04-10

SHIVA KIRTI SINGH

body2001
Judgment Shiva Kirti Singh, J. 1. The sole petitioner of this writ application was a Clerk in the service of Bihar State Road Transport Corporation (hereinafter referred to as the Corporation). On 6.9.1981, while the petitioner was posted in Bhagalpur establishment of the Corporation, a dacoity took place in the office during office hours. According to allegations by some of the employees present at the time of dacoity, the petitioner immediately after the occurrence disappeared for some time and denied that he had taken away a few bundles of currency noties which has been thrown under his tabfe in order to save that money for being looted from the cash box. On suspicion expressed by the officers and employees, police searched the house of the petitioner and recovered Rs. 6,720/-. This led to a criminal case against the petitioner as well as suspension and charge-sheet in a departmental proceeding. Since the trial court convicted the petitioner and sentenced him to rigorous imprisonment for one year, hence, on account of such conviction, he was terminated from service with effect from 18.1.1988. As a consequence, the departmental proceeding was put in abeyance. Subsequently, the petitioner was acquitted in appeal vide judgment and order dated 17.7.1993. Since the petitioner was not being permitted to join hence, he had to file a writ application in this Court bearing CWJC No. 4711/94 which was disposed of vide order dated 3.7.1995 (Annexure-2). The petitioner was taken back in service and the departmental proceeding was revived. The enquiry officer as per his report dated 3.6.1996 (Annexure-7) found the petitioner guilty of the charges. The disciplinary authority thereafter terminated petitioners service vide the impugned order dated 23.7.1996 contained in Annexure-1. 2. Petitioner has prayed for issuance of writ of certiorari to quash the order of termination dated 23.7.1996 on two grounds; firstly, that it is in violation of order of this Court dated 3.7.1995 as contained in Annexure-4 and secondly, that after his acquittal by the appellate court it was not open to the authorities to hold the petitioner guilty of same charge and to terminate his service on the ground that the charge has been found proved in departmental enquiry. Petitioner has also prayed for a mandamus to direct the respondents to reinstate him in service with back wages. 3. Petitioner has also prayed for a mandamus to direct the respondents to reinstate him in service with back wages. 3. So far as the first ground urged on behalf of the petitioner is concerned, a perusal of earlier order of this Court dated 3.7.1995 passed in CWJC No. 4711 of 1994 shows that the said writ application was for a limited relief that the respondents be directed to accept petitioners joining. The Court observed that if the charges in the criminal case and the departmental proceeding were same then the petitioner should be allowed to join and the departmental proceeding should be disposed of expeditiously, preferable within a period of two months by passing appropriate order in accordance with law. Thus, from the order dated 3.7.1995 it cannot be concluded that this Court either quashed the departmental proceeding or prohibited the respondents from proceeding with the same. 4. So far as the second plea is concerned, learned counsel for the petitioner placed reliance upon a judgment of the Apex Court in the case of M. Paul Anthony V/s. Bharat Gold Mine Limited, AIR 1999 SC 1416 , to submit that after acquittal in the criminal case it was not open to the disciplinary authority to hold the petitioner guilty of the same charge which was subject matter of criminal case and hence, the termination order was illegal. 5. Learned counsel for the respondent Corporation has raised a preliminary objection to the maintainability of the writ application on the ground that it was open for the petitioner to raise an industrial dispute under the provisions of the Industrial Disputes Act, 1947 to challenge the impugned order of termination because he is a workman and the undertaking of the Corporation is an industry. In support of this proposition he relied upon a judgment of the Supreme Court in the case of Rajasthan State Road Transport Corporation V/s. Krishna Kant, reported in (1995) 5 SCC 75 . 6. In support of this proposition he relied upon a judgment of the Supreme Court in the case of Rajasthan State Road Transport Corporation V/s. Krishna Kant, reported in (1995) 5 SCC 75 . 6. On merits, learned counsel appearing for the respondent-Corporation submitted that the judgment of acquittal in favour of the petitioner was not on merits but on account of benefit of doubt and hence, such acquittal by itself cannot be a bar to continuance of the departmental proceeding in accordance with law and once the petitioner was found guilty of the charge in the departmental proceeding constituted and conducted in proper manner then it was within the legal competence of the disciplinary authority to pass the impugned order of termination. Learned counsel for the Corporation placed reliance upon the judgment of the Apex Court in the case of M. Paul Anthony (supra) as well as two other judgments-(i) (1992) 4 SCC 711 : 1993(2) PLJR (SC)118 (Nelson Motis V/s. Union of India), (ii) (1997) 11 SCC 239 (Senior Superintendent of Post Offices V/s. A. Gopalan) and a recent judgment of a Division Bench of this Court dated 31.1.2001 in LPA No. 1217/2000 (The Bihar State Electricity Board V/s. Braj Kishore Singh and others). 7. So far as the preliminary objection raised on behalf of the respondent-Corporation is concerned, this Court is not inclined to accept the same firstly for the reason that no such objection was raised at the time of admission of this case and after keeping this writ application pending for hearing for several years it does not appear proper and desirable to relegate the petitioner to an alternative forum of industrial tribunal and secondly, on persusal of the judgment in the case of Rajasthan State Road Transport Corporation (supra) it is found that the issue falling for determination in that case was whether jurisdiction of civil court is barred in disputes involving recognition, observance or enforcement of rights and obligations created under the Industrial Disputes Act or similar sister enactments. The Apex Court came to the finding that jurisdiction of civil court in such matters would be barred but clarified that where disputes, even industrial disputes, involve reliefs based on general law of contract, civil court has alternative jurisdiction. Such a bar cannot, ipso facto, apply to writ jurisdiction of the High Court which is conferred by the Constitution of India. Such a bar cannot, ipso facto, apply to writ jurisdiction of the High Court which is conferred by the Constitution of India. No doubt, self imposed limitations on exercise of writ jurisdiction will ordinarily persuade this Court not to exercise jurisdiction in respect of rights created by the Industrial Disputes Act because in such cases the proper remedy would be to resort to dispute resolving forum available under the Industrial Disputes Act itself. In the present case, however, the petitioner has not raised any plea involving recognition, observance or enforcement of any rights or obligations created under the Industrial Disputes Act and hence, there is no occasion for this Court to limit its writ jurisdiction even on the basis of well known self imposed limitations. As a result, the preliminary objection to maintainability of the writ application is rejected. 8. Coming to the merit of the second submission and on consideration of the aforesaid judgments of the Apex Court and of this Court, it is found that the issue is no longer res Integra and the contention advanced on behalf of the respondent-Corporation has to be accepted. In this case a perusal of the. judgment and order of acquittal in criminal case as contained in Annexure-4 shows that the petitioner was acquitted by extending him the benefit of doubt and recently while considering a similar issue in CWJC No. 3611/2001 (Jitendra Prasad Singh V/s. Bihar State Electricity Board and others), I had the occasion to examine the aforesaid precedents as well as some other judgments of this Court and the conclusion arrived at was in following words : "From the judgments noticed earlier it is clear that in spite of acquittal in a criminal case, departmental proceeding and disciplinary actions can remain intact. In such cases like the present one the Court is called upon to apply its mind to aii the relevant facts and especially to the contents of the judgment of acquittal before coming to a finding whether in the facts and circumstances of the case the disciplinary action would be illegal, arbitrary or malafide. The judgment of acquittal can be of some help to the concerned employee in cases where the acquittal is on merits and contains positive finding to dislodge the allegations and charges levelled in the departmental proceeding. The judgment of acquittal can be of some help to the concerned employee in cases where the acquittal is on merits and contains positive finding to dislodge the allegations and charges levelled in the departmental proceeding. In cases where the acquittal is on technical grounds or based upon benefit of doubt without any positive finding in favour of the delinquent on the merit of relevant charge/allegation, the delinquent employee cannot derive any advantage for the purpose of challenging the departmental action solely on the basis of such judgment of acquittal." 9. Accordingly, this Court finds no merit even in the second submission advanced on behalf of the petitioner. Since no other grounds were urged on behalf of the petitioner hence, this Court finds no ground to interfere with the impugned order and accordingly, this writ application is dismissed. However, in the facts of the case, there shall be no order as to costs.