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2002 DIGILAW 172 (GAU)

Guna Bora v. State of Assam and Ors.

2002-04-23

J.N.SARMA

body2002
J.N. SARMA, J- This writ application has been filed to set aside and quash the impugned order dated 4.6.93 issued under the signature of the Extra Assistant Commissioner, Dibrugarh, respondent No. 5 dismissing the petitioner from service. An appeal was filed and that also was dismissed by the order dated 4.6.98. 2. The petitioner herein was a Mandal and the allegations as against him were as follows: "Statement of Allegation 1. That while you were serving as Mandal in Lot No. 1 of Sepon Mouza under Moran Revenue Circle you have forged the signature of Smti. S.H.M. Rohman, Circle Officer (A), Moran Revenue Circle on a certificate of income for old age pension issued to one Smti. Aity Baruah, W/o. Late Padmadhar Baruah on inhabitant of Haldhibari Barpather under Moran Mouza bearing the dated of 9.7.92. "You are therefore charged with forgery and criminal misconduct and such unfit to be retained in the employment of the Govt. 2. That you have not only issued the aforesaid certificate without the knowledge of the Circle Officer and the concerned Mondal of the Moran Mouza but also without verification of records. The certificate that you have issued appears that the annual income of Smti. Aity Baruah is Rs. 1,1OO/- only which less than the actual annual income of the petitioner. Shri Lalit Gogoi, Mandal, Lot No. 3 of Moran Mouza of which the petitioner is a resident, have earlier refused to issue such certificate on the ground that the annual income of the petitioner was much higher than that is required for old age pension. You are therefore charged with dishonesty, disobedience of unreliability irresponsibility and as such unfit to be retained in the employment of the Govt." 3. On the same set of charges there also was a criminal case being GR Case No. 1127/92 before the Sub-Divisional Magistrate (Sadar), Dibrugarh and by the impugned judgment dated 24.2.97 the writ petitioner was acquitted. The point for determination before the Learned Magistrate was as follows: "Whether the accused person, on 9.7.92 issued a forged income certificate in favour of one Smti. Aity Baruah of Vill. Haladhibari Barpather, forging therein the signature of Mrs. Syeda Hasina Murshida Rahman, the first informant, who was the Circle Officer (A) Moran Revenue Circle, intending that in said income certificate shall be used for the purpose of cheating and cheated the said Smti. Aity Baruah of Vill. Haladhibari Barpather, forging therein the signature of Mrs. Syeda Hasina Murshida Rahman, the first informant, who was the Circle Officer (A) Moran Revenue Circle, intending that in said income certificate shall be used for the purpose of cheating and cheated the said Smti. Aiti Baruah by dishonestly preparing the income certificate by using the seal and signature of the Circle Officer (A) Moran Revenue Circle." 4. The alleged confessional statement was also an issue before the Magistrate and the learned Magistrate came to the following findings: "Now, in the instant case at hand, the M. Ex. 3, which is the extra judicial confession of the accused alleged to have been made before the PW-3 is the only piece of concrete evidence against the accused. PW-3 evidence against the accused PW-3 state in her deposition that the accused had confessed his guilt before her and gave his statement in black and white to hit effect. But during cross-examination, PW-3 stated that the confession was not made before PW-3. PW-3 has further stated that the M.Ex.3 was not sent to hand writing expert to ascertain whether the M.Ex.3 was actually written by the accused in his own hand writing. The accused also denied to have written the M.Ex.3 during his statement u/s 313 Cr.P.C. Thus, from the above, it can well be inferred that the extra judicial confession of the accused in M.Ex.3 is not true and voluntary. And therefore, the said extra judicial confession has lost its footing and can be regarded as inadmissible being very weak piece of evidence. The other witnesses:- i.e. PW-1, PW-2 and PW-4, has not at all supported the PW-3 and has made goodbye to the prosecution case. None of the witnesses examined by the prosecution has been able to satisfy the ingredients of the Sections 468 and 420 of the Indian Penal Code which are necessary in order to sustain conviction of the accused. In the light of the above discussion, I am of the opinion that the prosecution has cut a sorry figure in bringing home the charge against the accused beyond all reasonable doubts. I therefore find the accused person not guilty u/s 468/420IPC. The accused person is therefore acquitted and set at liberty forthwith." 5. In the light of the above discussion, I am of the opinion that the prosecution has cut a sorry figure in bringing home the charge against the accused beyond all reasonable doubts. I therefore find the accused person not guilty u/s 468/420IPC. The accused person is therefore acquitted and set at liberty forthwith." 5. The enquiry report is available at Annexure-D and the same confession was utilised by the Enquiry Officer to hold that the petitioner is guilty of the criminal misconduct, dishonesty, unreliability and irresponsibility, and on the basis of it the order of dismissal was passed. In the show cause he denied that he confessed the guilt and made a statement in writing, also in the second show-cause on 14th May, 1993 it is stated as follows: "The statement that I submitted before the Circle Officer, Moran Revenue Circle, in respect of issuing the aforesaid certificate was not voluntary as I was threatened and forced by the concerning Circle Officer to write in like manners. I did not forge the signature of Smti. S.H.M. Rahman. But I wrote the particulars in that Income Certificate for an old age pension issued to Smti. Aity Baruah who is my relative." 6. In the instant case, now the question is that whether in view of the finding of the criminal Court on the same set of charges, the finding of the departmental authority can hold the field. The law on this point is settled by a decision of the Apex Court reported in AIR 1999 SCPage 1416 (Capt. M. Paul Anthony-Vs-Bharat Gold Mines Ltd. and another) wherein the Supreme Court after considering the various decisions has held as follows: "The conclusions which are deducible from various decisions of this Court referred to above are: (i) Departmental proceedings and proceedings in a criminal case can proceed simultaneously as there is no bar in their being conducted simultaneously, though separately. (ii) If the departmental proceedings and the criminal case are based on identical and similar set of facts and the charge in the criminal case against the delinquent employee is of a grave nature which involves complicated questions of law and fact, it would be desirable to stay the departmental proceedings till the conclusion of the criminal case. (ii) If the departmental proceedings and the criminal case are based on identical and similar set of facts and the charge in the criminal case against the delinquent employee is of a grave nature which involves complicated questions of law and fact, it would be desirable to stay the departmental proceedings till the conclusion of the criminal case. (iii) Whether the nature of a charge in a criminal case is grave and whether complicated questions of fact and law are involved in that case, will depend upon the nature of offence, the nature of the case launched against the employee on the basis of evidence and material collected against him during investigation or as reflected in the charge sheet. (iv) The factors mentioned at (ii) and (iii) above cannot be considered in isolation to stay the departmental proceedings but due regard has to be given to the fact that the departmental proceedings cannot be unduly delayed. (v) If the criminal case does not proceed or its disposal is being unduly delayed, the departmental proceedings, even if they were stayed on account of the pendency of the criminal case, can be resumed and proceeded with so as to conclude them at an early date, so that if the employee is found not guilty his honour may be vindicated and in case he is found guilty, administration may get rid of him at the earliest." 7. The Supreme Court further pointed out that where a provision is acquitted by "judicial pronouncement with the findings that the charges brought about against him were not proved, it would be unjust, unfair to allow the findings recorded at the departmental proceedings on the basis of same set of evidence to stand. That is what has happened in this case. The whole basis of the findings in the departmental enquiry is the alleged confessional statement and that confessional statement was discarded by the criminal Court holding that it was not voluntary but it was under threat and under coercion. 8. In that view of the matter, this writ application is allowed and Annexure-F and M to the writ application shall stand quashed. The petitioner shall be reinstated in service but it is made clear that the petitioner shall not be entitled to any backwages but the period from 1993 to 2002 shall be regularised for the purpose of retiral benefits and the future benefits. The petitioner shall be reinstated in service but it is made clear that the petitioner shall not be entitled to any backwages but the period from 1993 to 2002 shall be regularised for the purpose of retiral benefits and the future benefits. The petitioner shall taken back in service within a period of two months from to-day. 9. This disposes of the writ application. 10. Heard Mr D.R. Gogoi, learned advocate for the petitioner and Mr Phukan, learned Govt. Advocate for the respondents. 11. The petitioner shall obtain the certified copy of this order and shall produce the same before the authority to do the needful in terms of this order.