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2008 DIGILAW 1142 (JHR)

Rabhan Hembram v. State of Jharkhand

2008-09-23

AJIT KUMAR SINHA

body2008
Order The present writ petition has been preferred for issuance of an appropriate writ, order of direction in the nature 'of certiorari for quashing the order, as contained in Memo No. 1082/Ranchi, dated 8th September, 2001, whereby and whereunder, respondent no. 2, Inspector General of Prisons, Home (Prison) Department, Government of Jharkhand, Ranchi, acting as Departmental Appellate Authority, imposed punishment of stoppage of 5th pay increment of the petitioner and deprived him of his full salary for the period of suspension without even considering the judgment dat6d 29th July, 1998 passed by the Criminal Court, whereby, he was acquitted. 2. In the instant case a departmental proceeding was initiated against the petitioner alongwith two others, who were working as Jail Warden, for an incident, which took place in Chas Jail, which led to two criminal, namely, Bharat Rajak and Mahesh Murmu, fleeing away from the jail on 6.5.1989. The offence being serious in nature concerning the security of the Jail Department, an enquiry was held and the petitioner and two others were proceeded against. Initially one Mr. Saryug Ram, Warden, was held guilty and by way of punishment he was put in the initial pay scale in which he was appointed. 3. It appears that thereafter fresh enquiry was held in which this petitioner and two others as aforementioned were proceeded against and after a lapse of almost 10 years of the alleged occurrence, the Superintendent, Central Jail, Hazaribagh, by his order as contained in Memo No. 4342 dated 16.8.1999 passed an order of punishment against the petitioner whereby the petitioner was put in the initial pay scale of Warden and it was further directed that the petitioner shall not be paid anything save and except subsistence allowance for the period of his suspension and the suspension period shall not be considered as break for the purposes of pension. 4. In relation to the said occurrence, a criminal case being G.R. No. 384B of 1989, corresponding to T.R. No. 665 of 1998, was also registered against the petitioner, Ram Ratan Prasad and Jayant Sanga. In the said criminal case, all the aforesaid three persons were tried and by terms of judgment dated 29.7.1998 all the three persons were acquitted. 5. In relation to the said occurrence, a criminal case being G.R. No. 384B of 1989, corresponding to T.R. No. 665 of 1998, was also registered against the petitioner, Ram Ratan Prasad and Jayant Sanga. In the said criminal case, all the aforesaid three persons were tried and by terms of judgment dated 29.7.1998 all the three persons were acquitted. 5. The main contention raised is that for the same set of charges, a criminal case being G.R. No. 384B of 1989 corresponding to T.R. No. 665 of 1998, was initially registered against the petitioner and two others and all the three persons, who were tried together, were acquitted of the charges vide order dated 29th July, 1998. He has further submitted that the entire set of witnesses and evidences as also the charges in both the criminal as well as disciplinary proceedings are identical and even otherwise the petitioner is entitled to be exonerated of the charges in the disciplinary proceedings and. thus, the punishment inflicted against the petitioner is illegal. 6. In this regard learned counsel for the petitioner has referred to and relied upon the judgments, rendered in the case of Ram Khelawan Paswan vs. State of Jharkhand, as reported in 2008(2) JLJR page 618 and Dilip Bhuian vs. Central Coalfields Ltd., as reported in 2008(3) JLJR page 61. In my view, the aforesaid cases do not apply to the facts of the present case for the reason that in 2008(3) JLJR Page 61 (supra) the learned Single Judge only observed that the matter can be reconsidered by the authorities and has not even allowed the writ petition. Again in 2008(2) JLJR Page 618 (supra) the learned Single Judge held that the finding of the Enquiry Officer was perverse and the case was of no evidence and it also recorded that the Enquiry Officer has committed error apparent on record. In this case the learned Single Judge went into the merit of the disciplinary proceedings for setting it aside. 7. In this case the learned Single Judge went into the merit of the disciplinary proceedings for setting it aside. 7. Learned counsel for the respondent-State has contended that once the disciplinary proceeding has been initiated and concluded after due participation and an order of punishment has been passed, based on the evidence, the same cannot be reopened or re-appreciated by this Hon'ble Court and in this regard he has referred to and relied upon a decision of the Hon'ble Supreme Court in the case .of State of Meghalaya vs. Mecken Singh N. Marak, as reported in 2008 AIR SCW page 4726. 8. The Hon'ble Supreme Court in the case of Captain M. Paul Anthony vs. Bharat Gold Mines Ltd., as reported in (1999)3 SCC page 679 held that in some of the fact situations, depending upon the identical nature of evidence etc., the departmental proceedings can be kept in abeyance during pendency of a criminal trial. Again in the case of Uttaranchal Road Transport Corpn. vs. Mansaram Nainwal, as reported in (2006)6 SCC 366 , the Hon'ble Supreme Court held that there can be no straitjacket formula as to in which case the departmental proceedings are to be stayed. There may be cases where the trial of the case gets prolonged by the dilatory method adopted by delinquent official. He cannot be permitted to, on one hand, prolong criminal case and .at the same time contend that the departmental proceedings should be stayed on the ground that the criminal case is pending. In Capt. M. Paul Anthony, (1999)3 SCC 679 , the Supreme Court indicated some of the fact situations which would govern the question whether departmental proceedings should be kept in abeyance during pendency of a criminal case. 9. However, in the present case the issue is completely different, namely, as to whether a delinquent officer, who has been acquitted on being given the benefit of doubt in a criminal proceeding, is entitled to exoneration from all charges in a disciplinary proceeding. 10. In a recent judgment, rendered in the case of NOIDA Entrepreneurs Association vs. NOIDA & Ors., as reported in (2007)10 SCC 385 , the Hon'ble Supreme Court while considering an identical issue held at paragraph nos. 15 and 16 as under:- "15. 10. In a recent judgment, rendered in the case of NOIDA Entrepreneurs Association vs. NOIDA & Ors., as reported in (2007)10 SCC 385 , the Hon'ble Supreme Court while considering an identical issue held at paragraph nos. 15 and 16 as under:- "15. The position in law relating to acquittal in a criminal case, its effect on departmental proceedings, and reinstatement in service has been dealt with by this Court in Union of India vs. Bihari Lal Sidhana. It was held in para 5 as follows: (SCC pp. 387-88) 5. It is true that the respondent was acquitted by the criminal court but acquittal does not automatically give him the right to be reinstated into the service. It would still be open to the competent authority to take decision whether the delinquent Government servant can be taken into service or disciplinary action should be taken under the Central Civil Services (Classification, Control and Appeal) Rules or under the Temporary Service Rules. Admittedly, the respondent had been working as a temporary Government servant before he was kept under suspension. The termination order indicated the factum that he, by then, was under suspension. It is only a way of describing him as being under suspension when the order came to be passed but that does not constitute any stigma. Mere acquittal of Government employee does not automatically entitle the Government servant to reinstatement. As stated earlier, it would be open to the appropriate competent authority to take a decision whether the enquiry into the conduct is required to be done before directing reinstatement or appropriate action should be taken as per law, if otherwise, available. Since the respondent is only a temporary Government servant, the power being available under Rule 5(1) of the Rules, it is always open to the competent authority to invoke the said power and terminate the services of the employee instead of conducting the enquiry or to continue in service a Government servant accused of defalcation of public money. Reinstatement would be a charter for him to indulge with impunity in misappropriation of public money. 16. The standard of proof required in departmental proceedings is not the same as required to prove a criminal charge and even if there is an acquittal in the criminal proceedings the same does not bar departmental proceedings. Reinstatement would be a charter for him to indulge with impunity in misappropriation of public money. 16. The standard of proof required in departmental proceedings is not the same as required to prove a criminal charge and even if there is an acquittal in the criminal proceedings the same does not bar departmental proceedings. That being so, the order of the State Government deciding not to continue the departmental proceedings is clearly untenable and is quashed. The departmental proceedings shall continue." 11. In the aforesaid judgment which has been passed by a Full Bench of Hon'ble Supreme Court it has been specifically held that the departmental proceedings shall continue even if there is an acquittal in the criminal proceedings. The ratio of the aforesaid judgment squarely applies and covers the present case. It is further relevant to point out that in the instant case the criminal proceedings were quashed and order of acquittal was passed giving the benefit of doubt to the petitioner. 12. In the aforesaid background this writ petition is devoid of any merit and is accordingly dismissed without any order as to costs.