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2012 DIGILAW 277 (UTT)

Mohd. Tahir v. State of Uttarakhand

2012-06-14

TARUN AGARWALA

body2012
JUDGMENT : The petitioner was employed in a permanent capacity as a Labourer in the respondent organization. It transpires that the petitioner was taken in police custody on 29.11.2001 and remained in jail till 10th January, 2002 in connection with some criminal case. When the respondents came to know about his detention, an order dated 16th April, 2002 was passed suspending the petitioner w.e.f. 29th November, 2001. It further transpires that chargesheet u/S 302 and 307 I.P.C. was filed against the petitioner. The trial court convicted the petitioner giving him life imprisonment and a fine of Rs.2,000/- by an order dated 5th October, 2007. The respondent issued an order dated 15th December, 2007 dismissing the petitioner from the services exercising the powers under Rule 14 and Rule 11 of the C.C.S. (C.C.A.) Rules, 1965 for violation of Rule 3 (1) (i) of C.C.S. (Conduct) Rules, 1964. The petitioner was dismissed from the services from the date of issuance of the judgment by the trial court, i.e. 5th October, 2007. The order of dismissal is quoted in extenso:- “ORDER 1. WHEREAS, Mohd. Tahir, Civ/Labourer of 297 Coy ASC (Sup) Type ‘C’ Roorkee is suspended wef 29 Nov 2001, in terms of Sub Rule (2) of Rule 10 of CCS (CC&A) Rule 1965 due to his involvement in serious criminal case under Sec 302 and 307 of IPC and was in detention in police custody wef 29 Nov 2001 to 10 Jan 2002. The individual was suspended wef 29 Nov 2001 vide 297 Coy ASC (Sup) Type ‘C’ Roorkee Suspension Order No 122/DISC/Civ/ST-12 dated 16 Apr 2002. 2. WHEREAS, all criminal charges under Sec 302 and 307 of IPC framed against Mohd Tahir, Civ/Labourer of 297 Coy ASC (Sup) Type ‘C’ Roorkee was proved in 1st Fast Track Court / Addition Sessions Judge, Haridwar (Uttarakhand). The copy of the judgment received from 1st Fast Track Court / Addition Sessions Judge, Haridwar (Uttarakhand) No nil dt 05 Oct 2007 vide which life imprisonment and Rs. 2000/- financial punishment awarded to Mohd Tahir, Civ/Labourer of 297 Coy ASC (Sup) Type ‘C’ Roorkee to his conviction on a criminal charge under Sec 302 and 207 of IPC and the same was published in Daily News Paper “Amar Ujala” dt. 2000/- financial punishment awarded to Mohd Tahir, Civ/Labourer of 297 Coy ASC (Sup) Type ‘C’ Roorkee to his conviction on a criminal charge under Sec 302 and 207 of IPC and the same was published in Daily News Paper “Amar Ujala” dt. 06 Oct 2007 and Special Review Committee of 297 Coy ASC (Sup) Type ‘C’ Roorkee also recommends that Mohd Tahir, Civ/Labourer of 297 Coy ASC (Sup) Type ‘C’ Roorkee to be dismissed from Govt service wef 05 Oct 2007 under Rule 14 and Rule 11 of (ix) of CCS (CC&A) Rule 1965 for violation of Rule 3 (1) (iii) and Govt. of India decision No. 23 (9) of Rule 3-C CCS (Conduct) Rule 1964. 3. WHEREAS, the undersigned has carefully considered the Special Review Committee Report and agrees with the recommendations of Special Review Committee Report. 4. NOW THEREFORE, the undersigned in exercise of the powers conferred by Rule 14 and Rule 11 of (ix) of Central Civil Services (Classification, Control and Appeal) Rules 1965 for violation of Rule 3 (1) (iii) and Govt of India decision No. 23 (9) of Rule 3-C CCS (Conduct) Rules 1964 hereby imposes the following penalties on the said Mohd Tahir, Civ/Labourer of 297 Coy ASC (Sup) Type ‘C’ Roorkee :- (a) Suspension period not to be extended wef 05 Oct 2007. (b) To be dismissed from service from the date of issue of judgment by 1st Fast Track Court / Addition Sessions Judge, Haridwar (Uttarakhand) ie. 05 Oct 2007 which shall not be a disqualification for future employment under Govt. Case No. 122/PC/Civ/St-12 (Jiten Ale) Lt Col Station : Roorkee Commanding Officer Dated : 15 Dec 2007” From the perusal of the aforesaid order, it is clear that the dismissal of the petitioner from the services of the respondent-organisation was based on the conviction by the trial court and, that the dismissal was not based on any domestic inquiry as a result of the chargesheet issued by the respondent. Even though, the impugned order states that the dismissal order has been passed under Rule 14 read with Rule 11 of the C.C.S. (C.C.A.) Rules, 1995 which, apparently on the face of it, is incorrect. Even though, the impugned order states that the dismissal order has been passed under Rule 14 read with Rule 11 of the C.C.S. (C.C.A.) Rules, 1995 which, apparently on the face of it, is incorrect. As stated earlier, the petitioner filed an appeal against his conviction before the High Court of Uttarakhand which was allowed by a judgment dated 8th October, 2009 and the conviction of the petitioner alongwith others was set aside. The Court held that the prosecution has utterly failed in establishing the guilt of the accused beyond a reasonable doubt. The operative portion of the order of the High Court setting aside the conviction is quoted hereunder:- “For the reasons stated above, we come to the conclusion that the prosecution has utterly failed in establishing the guilt of the accused persons beyond reasonable doubt. The conviction and sentence recorded by the trial court against the accused/appellants is not liable to be sustained in the eye of law. We are, therefore, of the view that these appeals are liable to be allowed and the conviction and sentence recorded by the trial court is liable to be set aside.” It has come on record that against the order of the High Court, the complainant has preferred a Special Leave Petition before the Supreme Court of India which has been admitted but the judgment of the High Court has not been stayed. Pursuant to the judgment of the High Court dated 8th October, 2009, the petitioner applied for reinstatement and moved an application dated 31st October, 2009. When no action was taken by the respondents, the petitioner filed the present writ petition praying for the quashing of the order of dismissal dated 15/12/2007 and has further prayed that he should be reinstated in service. In the counter affidavit, the respondents admit that the petitioner was dismissed from the service on account of his conviction in a criminal case. The respondent also admits that the application dated 31st October, 2009 was received from the petitioner wherein he had prayed for his reinstatement and in that regard the respondent by a letter dated 18.11.2009 sought advice from the superior authorities with regard to his reinstatement. The respondent also admits that the application dated 31st October, 2009 was received from the petitioner wherein he had prayed for his reinstatement and in that regard the respondent by a letter dated 18.11.2009 sought advice from the superior authorities with regard to his reinstatement. It transpires that the authorities directed the respondent to deal with the case in accordance with Rule 19 of the C.C.S. Rules, 1965, inspite of which, the respondent issued letters dated 31st May, 2010 and 12th June, 2010 to their superiors intimating them that they are unable to comprehend Rule 19 of the C.C.S. Rules and, according to them, the said Rule was vague and requested the superior authority to advise them. The counter affidavit reveals that no action on the application of the petitioner for reinstatement was taken and the same remained pending. It is also necessary to point out that by an order dated 9th June, 2010, the Court had directed the respondents to decide the representation with regard to his reinstatement. Inspite of issuing such directions, no action has been taken by the respondents. The counter affidavit also reveals that had the petitioner remained in service, he would have retired on 30th June, 2011. In the light of the aforesaid, the question which the Court is required to decide is, whether upon the acquittal of the petitioner on merits exonerating him from the criminal charge and absolving the petitioner from criminal liability, the order of dismissal, which was based on the conviction by the criminal court, could not be set aside? Admittedly, the order of dismissal is based on the conviction of the petitioner by an order of the trial court. It is also clear from the record that no departmental proceedings or inquiry or domestic inquiry was conducted by the respondents in accordance with Rule 14 of the C.C.S. Rules, 1965. It is also clear that the provision of Rule 14 read with Rule 11 of the C.C.S. Rules has wrongly been quoted in the impugned dismissal order whereas the order of dismissal, if any, under the given circumstances could only have been passed under Rule 19 (i) of the Rules of 1965. For facility, Rule 19 (i) is quoted hereunder:- “19. For facility, Rule 19 (i) is quoted hereunder:- “19. Special procedure in certain cases – Notwithstanding anything contained in Rule 14 to Rule 18- i) where any penalty is imposed on a Government Servant on the ground of conduct which has led to his conviction on a criminal charge, or.” The petitioner’s application for reinstatement has remained pending and no action whatsoever has been taken by the respondents as yet. The law on this issue has been settled by a catena of cases by the Supreme Court of India. In Capt. M. Paul Anthony Vs. Bharat Gold Mines Ltd. and another, (1999) 3 SCC 679 , the issue before the Supreme Court of India was whether the departmental proceedings and criminal proceedings based on the same set of facts could be continued simultaneously or not. The Supreme Court after reviewing its various decisions quoted as under:- “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. (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. (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 epartmental 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.” The Supreme Court thereafter held that since the facts and evidence in both the proceedings, namely, departmental proceedings and the criminal case were the same without there being any iota of difference, the distinction which is usually drawn between the departmental proceedings and the criminal case on the basis of approach and burden of proof were not applicable to the instant case and, consequently, quashed the order of dismissal upon the acquittal of the petitioner from a criminal court leaving it open to the respondents to initiate a fresh disciplinary proceedings, if required. In Nelson Motis Vs. Union of India, 1992 (4) SCC 711 , the Supreme Court held that the disciplinary proceedings can be legally continued even where the employee was acquitted in a criminal case as the nature and proof required in a criminal case was different and distinct than that required in a departmental proceedings. In G.M. Tank Vs. In Nelson Motis Vs. Union of India, 1992 (4) SCC 711 , the Supreme Court held that the disciplinary proceedings can be legally continued even where the employee was acquitted in a criminal case as the nature and proof required in a criminal case was different and distinct than that required in a departmental proceedings. In G.M. Tank Vs. State of Gujarat and others, (2006) 5 SCC 446 , the question which the court was required to consider was : “Whether acquittal, absolutely on merits amounting to clear exoneration of the appellant by the Special Court under the P.C. Act does ipso facto absolve the appellant from the liability under the disciplinary jurisdiction when the charges leveled against the appellant in the departmental proceedings and the criminal proceedings are grounded on the same set of facts, charges, circumstances and evidence.” The Supreme Court found that the charges framed in the domestic proceedings and in the criminal proceedings were grounded on the same set of facts and circumstances and held that since the appellant had been exonerated /acquitted by the competent court on the same set of facts and evidence and witnesses, therefore, the dismissal order based on the same set of facts and evidence on the departmental side was liable to be set aside in the interest of justice. In the Corporation of the City of Nagpur, Civil Lines, Nagpur and another Vs. Ramchandra and others, (1981) 2 SCC 714 , the Supreme Court held where the accused is acquitted honourably and is completely exonerated of the charges, it would not be expedient to continue a departmental inquiry on the very same charges or grounds or evidence. For facility, paragraph 6 of the said judgment is extracted hereunder: “The other question that remains is if the respondents are acquitted in the criminal case whether or not the departmental inquiry pending against the respondents would have to continue. This is a matter which is to be decided by the department after considering the nature of the findings given by the criminal court. This is a matter which is to be decided by the department after considering the nature of the findings given by the criminal court. Normally where the accused is acquitted honourably and completely exonerated of the charges it would not be expedient to continue a departmental inquiry on the very same charges or grounds or evidence, but the fact remains, however, that merely because the accused is acquitted, the power of the authority concerned to continue the departmental inquiry is not taken away nor is its direction in any way fettered. ” In Ajit Kumar Nag Vs. G.M. (PJ), Indian Oil Corporation Ltd., (2005) 7 SCC 764 , the Supreme Court held that the acquittal of the appellant by a criminal court does not preclude the employer from taking any action even otherwise permissible. The Supreme Court further held that the acquittal by the criminal court would not debar an employer from exercising power in accordance with rules and regulations in force since the two proceedings criminal and departmental are entirely different. In the light of the aforesaid, since the order of dismissal was passed on the conviction of the petitioner pursuant to a judgment given by the criminal court which has been set aside, the order of dismissal cannot be sustained and is quashed. Since departmental proceedings and criminal proceedings operate in different fields and have different objects, the employer is not precluded from initiating disciplinary proceedings against the petitioner under the rules and regulations. However, the respondents-employer should keep in mind that the petitioner has been honourably acquitted on merits by a superior court of law and further should keep in mind as to whether it would be advisable for the respondents to initiate disciplinary proceedings on account of lapse of time coupled with the fact that the petitioner if he had been in service would have retired on 30th June, 2011. In the light of the aforesaid, the writ petition is allowed. The order of dismissal dated 15/12/2007 is quashed. The question of reinstatement of the petitioner now does not arise since he has already reached the age of superannuation but would be entitled for arrears of salary together with all allowances from the date of his suspension till his retirement. It would be open to the respondents if they are so advised to initiate the departmental proceedings under the relevant rules and regulations against the petitioner. It would be open to the respondents if they are so advised to initiate the departmental proceedings under the relevant rules and regulations against the petitioner. In view of the fact that no action was taken on the application of the petitioner for reinstatement coupled with the fact that no action was taken by the respondents pursuant to the direction of the Court, the petitioner is entitled to the cost which is quantified as Rs.20,000/-