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2005 DIGILAW 579 (GAU)

Abdul Kalam Borbhuya v. State of Assam

2005-08-09

RANJAN GOGOI

body2005
JUDGMENT Ranjan Gogoi, J. 1. Heard Mr. S.S. Dey, learned Counsel for the petitioner and Mr. U.K. Mahanta, learned Government of Assam. 2. The inaction of the respondents in reinstating the petitioner in service after his acquittal in the criminal case instituted against him is the precise grievance that has been raised in the present writ petition. To understand and appreciate the grievance raised, a brief recital of the core facts is considered necessary. 3. At the relevant point of time, the petitioner was working as a Peon in the Nazarat Branch of the establishment of the Deputy Commissioner at Hailakandi. The petitioner was involved in an allegation of commission of an offence under Section 376 of the Indian Penal Code. This was sometime in the year 1994. A police case i.e. Hailakandi Police Station Case No. 39/94 under Section 376/511 of the Indian Penal Code was registered against the petitioner. While the police case was being investigated, a departmental proceeding was initiated against the petitioner on the same allegations and he was also placed under suspension. It appears that while the investigation of the police case against the petitioner was in progress, by an order dated 12th February, 1998, the departmental proceeding against the petitioner was dropped; he was reinstated in service and the period of suspension was ordered to be treated as on duty. Subsequently, charge-sheet was submitted against the petitioner in the criminal case and after trial, the petitioner was convicted by the learned Assistant Sessions judge, Harlakandi by judgment and order dated 7.2.2002. Following the aforesaid conviction by an order dated 1st April, 2002, the petitioner was dismissed from service. The petitioner filed an appeal before the learned Sessions Judge against the order of conviction of the learned Trial Court. By the judgment and order dated 23.12.2002, the appeal filed by the petitioner was allowed and the learned Sessions Judge set aside the order of conviction and sentence imposed on the petitioner. In such circumstances, the petitioner lodged a claim before the Deputy Commissioner, Hailakandi for revocation of the order of dismissal dated 1.4.2002 and to reinstate him in service. The said claim not having been disposed of, the present approach to this Court under Article 226 of the Constitution has been made in the above noted circumstances. 4. The short argument advanced on behalf of the writ petitioner by Mr. The said claim not having been disposed of, the present approach to this Court under Article 226 of the Constitution has been made in the above noted circumstances. 4. The short argument advanced on behalf of the writ petitioner by Mr. Dey, learned Counsel, is to the effect that though an acquittal in the criminal proceeding need not, ipso facto, be a ground for interfering with an order of dismissal from service, yet, in a given situation, as in the present case, the above position should be understood by the Court to be the natural result of the surrounding circumstances. According to the learned Counsel for the petitioner, the departmental proceeding on the same allegations as in the criminal case against the petitioner ended in the exoneration of the petitioner by order dated 12th February, 1998. Alter the conviction of the petitioner by the learned Trial Court by judgment and order dated 7.2.2002, no fresh departmental proceeding was drawn up against the petitioner. Instead, the power under Rule 10 of the Assam Services (Discipline and Appeal) Rules was invoked and the petitioner was dismissed from service. Rule 10 of the Rules enables the disciplinary authority to impose any punishment following an order of conviction in a criminal case without following the procedure prescribed by Rule 9. In such a situation, according to the learned Counsel for the petitioner, it is the conviction of the petitioner by the learned Trial Court which must be under-stood to be the entire of the basis for his dismissal from service. The subsequent acquittal recorded by the learned Appellate Court having set at naught the very basis of the dismissal of the petitioner, it is the submission of the learned Counsel that the petitioner has to be reinstated in service with back benefits. 5. The contention advanced on behalf of the petitioner has been sought to be controverted, by Mr. Mahanta, learned Government Advocate by contending that though acquitted, having regard to the antecedents, the petitioner would not be a suitable person to be employed by the Government and, therefore, this Court ought not to exercise its high discretionary power under Article 226 of the Constitution in favour of the Writ petitioner. Mr. Mahanta has also placed before the Court the affidavit filed on behalf of the official respondents, which is available on record. 6. Mr. Mahanta has also placed before the Court the affidavit filed on behalf of the official respondents, which is available on record. 6. The rival submissions advanced on behalf of the parties have received the most anxious consideration of the Court. The findings recorded by a Criminal Court cannot be understood to be determinative of the proceedings in a departmental action against a delinquent Government servant, even though the allegations/charges in both the proceedings may be similar. The standards of proof required to establish the charges in the two proceedings being vastly different, the Courts, from time to time have emphasized the fundamental difference in the character of the two proceedings and the consequences of the findings recorded in one proceeding on the fate of the other. However, in the instant case, though a departmental proceeding was initiated against the petitioner at one point of time, the same was dropped. Whether a fresh proceeding could have been brought against the petitioner after his conviction by the learned Trial Court is a debatable issue but the said debate need not be entered into by the Court inasmuch as no such proceeding, was drawn up against the petitioner. Rather, a reading of the order dated 1.4.2002 would go to show that the sole basis of the dismissal of the petitioner is the conviction by the learned Trial Court, a course of action that was open to the state to take in view of the provisions contained in Rule 10 of the Discipline and Appeal. Rules. The sole and only basis of the order of dismissal being the conviction of the petitioner by the learned Trial Court and the said conviction having been set aside by the learned Appellate Court, little persuasion is required to understand that the basis of the order of dismissal has ceased to exist. The suitability of the petitioner to be re employed, a point which has been argued by the learned Government Advocate, would hardly concern the Court as the said point has neither been advanced in the pleadings contained in the counter-affidavit nor is it reflected by the records of the case. The suitability of the petitioner to be re employed, a point which has been argued by the learned Government Advocate, would hardly concern the Court as the said point has neither been advanced in the pleadings contained in the counter-affidavit nor is it reflected by the records of the case. In fact the counter-affidavit filed by the Government is conspicuously silent or any of the crucial issues of the case and merely recites that the Government had, at one point of time, contemplated to file an appeal against the order of acquittal passed by the Appellate Court in favour of the petitioner. In any view of the matter, there can hardly be any doubt that an order passed by a Court of competent jurisdiction has to be given its full effect and meaning and all consequences legally and logically emanating from such an order has to be allowed to take its natural effect. Tested in that light, the acquittal of the petitioner ordered by the Appellate Court must be allowed to operate to wipe out the conviction of the petitioner was ordered by the learned Trial Court. 7. The basis of the dismissal order dated 1.4.2002 being what has already been noticed and this Court having taken the view that the said basis does not survive after the acquittal of the petitioner, the inevitable consequence that has now to follow is the interference of this Court with the order of dismissal dated 1.4.2002 and the reinstatement of the petitioner is service forthwith. The question of grant of back wages to the petitioner has also been considered by this Court and on such consideration, this Court is of the view that as the petitioner had not rendered any service during the period in question and further, having regard to the totality of the facts and circumstances of the case, the State need not pay any back wages to the petitioner. 8. Consequently and in the light of the foregoing discussions, this writ petition is allowed to the extent indicated above. Petition allowed.