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2013 DIGILAW 13 (MEG)

Arvind Kumar Singh v. State Of Meghalaya

2013-05-13

T.NANDAKUMAR SINGH

body2013
JUDGMENT : T. Nandakumar Singh, J. 1. Heard Mr. R. Jha, learned counsel appearing for the petitioner and Mr. K. Khan, learned counsel appearing for the respondents No. 1-3. Also heard Mr. S. Sen, learned counsel appearing for the respondents No. 4. By this writ petition, the petitioner is assailing the order of the Authorities of the St. Anthony's Higher Secondary School, Shillong dated 23.02.2006 for approving the meeting of the Managing Committee held on 16.12.2005 for terminating the service of the petitioner from the post of Assistant teacher of the St. Anthony's Higher Secondary School w.e.f. 31.12.2005 and also the order of the Principal and Secretary, St. Anthony's Higher Secondary School dated 23.02.2006 for informing the petitioner that he has been terminated from service as Assistant teacher-cum-Secretary in St. Anthony's Higher Secondary School with immediate effect and also for a direction to the respondents to reinstate his service as Assistant teacher-cum-Secretary in the St. Anthony's Higher Secondary School. 2. The petitioner is a Science graduate holding diploma in Computer Applications and he was appointed as Assistant teacher for Computer Science at St. Anthony's Higher Secondary School, Shillong in 2000 and he continued to serve in the said capacity till he was terminated from service. For an unfortunate incident on 24.06.2004, the petitioner was put under suspension and for that incident, the school authority had initiated a departmental enquiry for the charges:-- (i) That, on 24.06.2004 at about 5:00 pm during the absence of the Principal, you were seen standing near the office-drawer of the Principal's office and a sum of Rs. 7000/- (Rupees seven thousand) was found missing. Since you were found in a forbidden place, you expressed shock, upon the Principal's sudden entry. (ii) That, during the year 2000, you misbehaved with your office colleague Ms Rupa Gurung and attempted to violate her modesty and mentally tortured her in the workplace. 3. For the said incident, the school authority lodged an ejahar dated 25.06.2004 with the Officer-in-Charge, Laitumkhrah PS and on receipt of the ejahar, the Officer-in-Charge, Laitumkhrah PS also registered a criminal case. For ready reference, the said ejahar dated 25.06.2004 is quoted herein-under:-- St. Anthony's Higher Secondary School (A Don Bosco Institution) Shillong-793003 --------------------------------------------------------------------------------------- Ref. No. SAHSS/FIR/2004-01 Dated 25th June, 2004. The Officer Incharge, Laitumkhrah Police Station, Shillong-793003. Subject: FIR. Sir, I would like to lodge an FIR regarding the theft of a sum of Rs. For ready reference, the said ejahar dated 25.06.2004 is quoted herein-under:-- St. Anthony's Higher Secondary School (A Don Bosco Institution) Shillong-793003 --------------------------------------------------------------------------------------- Ref. No. SAHSS/FIR/2004-01 Dated 25th June, 2004. The Officer Incharge, Laitumkhrah Police Station, Shillong-793003. Subject: FIR. Sir, I would like to lodge an FIR regarding the theft of a sum of Rs. 7000 (seven thousand) on the 24th June, 2004 at 5:00 pm from the office-drawer of the Principal. The prime suspect is Mr. Arvind Kumar Singh, my Office Secretary. When I, the Principal Suddenly entered the office, Mr. Arvind was found near my office-drawer, which was kept partly opened. He expressed a sudden shock at my entry. He was alone in the office and there was no reason for him to be found near my office-drawer. Two days prior to this, I had lost a bag with an amount of Rs. (approx) 35,000/- and we have been making searches for the same. In the month of February, a brand new camera was lost from my office. Only Mr. Arvind had access to it and knew the location where it was kept. Small items like camera rolls, CD's etc are constantly missing. After yesterday's event, I am convinced that Mr. Arvind Kumar Singh who has been guilty of many thefts in the past. I earnestly request the Police to arrest Mr. Arvind immediately and proceed against him according to law and help in the recovery of stolen cash and goods. Thanking you, Sd/- Fr. PD. John, Sdb, Principal. 4. There were additional charges in the departmental enquiry against the petitioner. The additional charges were:-- (i) Cheating and lying to your colleague. (ii) Misuse of school facilities and indulging in unlawful activities in the absence of the Principal - Xerox, Telephone, Computer, Printer etc. (iii) Serious carelessness in your work 5. The petitioner was allowed to file his written statement of defence and also available ample opportunity to produce his evidence in the departmental enquiry. The enquiry officer submitted an enquiry report that the charges leveled against the petitioner had been proved. After giving opportunity to the petitioner to submit his comment/statement against the enquiry report, the school authority accepted the enquiry report. The said enquiry report was also placed before the Managing Committee of the St. The enquiry officer submitted an enquiry report that the charges leveled against the petitioner had been proved. After giving opportunity to the petitioner to submit his comment/statement against the enquiry report, the school authority accepted the enquiry report. The said enquiry report was also placed before the Managing Committee of the St. Anthony's Higher Secondary School and the Managing Committee in its meeting held on 16.12.2005 passed a resolution for terminating the petitioner from service as Assistant teacher of the School w.e.f. 31.12.2005. The proceeding of the Managing Committee had also been approved vide the impugned order dated 21.02.2006. The petitioner had been informed vide the impugned Office Order dated 23.02.2006 that the petitioner had been removed from service as Assistant teacher-cum-Secretary in the St. Anthony's Higher Secondary School, Shillong. 6. After the petitioner had been dismissed from service, basing on the enquiry report, the learned Chief Judicial Magistrate, Shillong passed the judgment and order dated 23.12.2010 in GR. Case No. 31(S) 2005 for acquitting the petitioner on benefit of doubt. The operative portion of the judgment and order of the learned Chief Judicial Magistrate, Shillong dated 23.12.2010 for acquitting the petitioner in the said G.R. Case No. 31 (S)2005 reads as follows:-- Under the above circumstances and observation I find the prosecution has failed to prove the charge u/s 381 IPC against the accused person. The prosecution story may be true but conjecture is no proof. In criminal case surmise cannot be used in arriving at conclusion to convict the accused person. Manjal v. State AIR 167 ALL 204 Anant Babu Roa v. State : AIR 1967 BOM 109 : 1967 Cr.LJ. 440 . Hence the accused person is giving (sic) the benefit of doubt as he is not found guilty u/s 381 IPC and acquitted. 7. On bare perusal of the judgment and order of the learned Chief Judicial Magistrate dated 23.12.2010 for acquitting the petitioner in G.R. Case No. 30(S) 2005, it is crystal clear that the petitioner had been acquitted from the charge u/s 381 IPC only on the benefit of doubt. In the present case, it is the case of the petitioner that since the petitioner had been acquitted by the learned Chief Judicial Magistrate by the said judgment and order dated 23.12.2010 passed in GR. In the present case, it is the case of the petitioner that since the petitioner had been acquitted by the learned Chief Judicial Magistrate by the said judgment and order dated 23.12.2010 passed in GR. Case No. 30(S)2005 for the said incident i.e. 24.06.2004 for which departmental enquiry had been initiated against the petitioner and terminated from service on the basis of the report of the said departmental enquiry, the petitioner should be reinstated in service. 8. Mr. S. Sen, learned counsel appearing for the respondent No. 4 strenuously contended that the service rules which governs the service of the petitioner does not provide that an employee later on acquitted by a criminal Court in respect of the same set of facts for which the departmental enquiry was initiated and also terminated from service on the basis of the enquiry report, right is conferred on the employee to claim any benefit including reinstatement. Mr. R. Jha, learned counsel appearing for the petitioner also fairly admits that there is no provisions in the service rules for reinstatement in service in case an employee honourably acquitted by a criminal Court for the same set of facts for which the departmental enquiry was also initial against the concerned employee and terminated from service on the finding of the departmental enquiry. 9. Mr. S. Sen, learned counsel appearing for the respondent No. 4 by placing heavy reliance on the decision of the Apex Court in Deputy Inspector General of Police & Anr. Vs. S. Samuthiram: (2013) SCC 598 strenuously contended that the Apex Court had held in a clear term that in the absence of any provisions in the service rules for reinstatement, if an employee is honourably acquitted by a criminal Court, no right is conferred on the employee to claim any benefit including reinstatement It is fairly settled that in a criminal case, the onus of establishing the guilt of the accused is on the prosecution and if it fails to establish the guilt beyond reasonable doubt, the accused is assumed to be innocent It is equally settled that the strict burden of proof required to establish guilt in criminal Court is not required in a disciplinary proceedings and preponderance of probabilities is sufficient. The Apex Court in R.P. Kapur Vs. The Apex Court in R.P. Kapur Vs. Union of India: : AIR 1964 SC 787 , held that in a case of acquittal, departmental proceedings may follow where the acquittal is other than honourable. The Apex Court is of the similar view in the State of Assam Vs. Raghava Rajgopalachari 1972 SLR 44 (SC). 10. The Apex Court in catena of cases had also considered the meaning of expression ("honourable acquittal") and held that a mere acquittal does not entitle an employee to reinstatement in service, the acquittal, it was held, has to be honourable. In other words, an employee entitled to reinstatement in service when acquittal in the criminal case is of honourable acquittal. The words "honourable acquittal" mean fully exonerated after considering the case of the prosecution and not on benefit of doubt. In the instant case, the learned Chief Judicial Magistrate in her judgment and order dated 23.12.2010 had acquitted the petitioner from the criminal case only on benefit of doubt. This Court is of the considered view that acquittal of the petitioner from the charge in GR Case No. 31 (S) 2005 is not honourable acquittal but on benefit of doubt. Paras 24, 25, 26 and 27 of the SCC in Deputy Inspector General of Police case (supra) read as follows:- 24. The meaning of the expression honourable acquittal' came up for consideration before this Court in Management of Reserve Bank of India, New Delhi v. Bhopal Singh Panchal (1994) 1 SCC 541 : 1994 SCC (L&S) 594 (1994) 26 ATC 619 . In that case, this Court has considered the impact of Regulation 46(4) dealing with honourable acquittal by a criminal Court on the disciplinary proceedings. In that context, this Court held that the mere acquittal does not entitle an employee to reinstatement in service, the acquittal, it was held, has to be honourable. The expressions 'honourable acquittal', 'acquitted of blame', 'fully exonerated' are unknown to the Code of Criminal Procedure or the Penal Code, which are coined by judicial pronouncements. It is difficult to define precisely what is meant by the expression 'honourably acquitted'. When the accused is acquitted after full consideration of prosecution evidence and that the prosecution had miserably failed to prove the charges levelled against the accused, it can possibly be said that the accused was honourably acquitted. 25. It is difficult to define precisely what is meant by the expression 'honourably acquitted'. When the accused is acquitted after full consideration of prosecution evidence and that the prosecution had miserably failed to prove the charges levelled against the accused, it can possibly be said that the accused was honourably acquitted. 25. In R.P. Kapoor v. Union of India, : AIR 1964 SC 787 , it was held even in the case of acquittal, departmental proceedings may follow where the acquittal is other than honourable. In State of Assam & Anr. v. Raghava Rajgopalachari reported in 1972 SLR 44 (SC), this Court quoted with approval the views expressed by Lord Williams, J. in Robert Stuart Wauchope v. Emperor: : ILR (1934) 61 Cal 168 which is as follows: (Raghava case: 1972 SLR 44 (SC) p.47, para 8) 8. The expression "honourably acquitted" is one which is unknown to Court of justice. Apparently it is a form of order used in Courts martial and other extra judicial tribunals. We said in our judgment that we accepted the explanation given by the appellant believed it to be true and considered that it ought to have been accepted by the Government authorities and by the magistrate. Further, we decided that the appellant had not misappropriated the monies referred to in the charge. It is thus clear that the effect of our judgment was that the appellant was acquitted as fully and completely as it was possible for him to be acquitted. Presumably, this is equivalent to what Government authorities term 'honourably acquitted." ( Robert Stuart case : ILR (1934) 61 Cal 168, IL Rpp. 188-89 ). 26. As we have already indicated, in the absence of any provision in the service rule for reinstatement, if an employee is honourably acquitted by a Criminal Court, no right is conferred on the employee to claim any benefit including reinstatement. Reason is that the standard of proof required for holding a person guilty by a criminal Court and the enquiry conducted by way of disciplinary proceeding is entirely different. In a criminal case, the onus of establishing the guilt of the accused is on the prosecution and if it fails to establish the guilt beyond reasonable doubt, the accused is assumed to be innocent. In a criminal case, the onus of establishing the guilt of the accused is on the prosecution and if it fails to establish the guilt beyond reasonable doubt, the accused is assumed to be innocent. It is settled law that the strict burden of proof required to establish guilt in a criminal Court is not required in a disciplinary proceedings and preponderance of probabilities is sufficient. There may be cases where a person is acquitted for technical reasons or the prosecution giving up other witnesses since few of the other witnesses turned hostile etc. In the case on hand the prosecution did not take steps to examine many of the crucial witnesses on the ground that the complainant and his wife turned hostile. The Court, therefore. acquitted the accused giving the benefit of doubt. We are not prepared to say in the instant case, the respondent was honourably acquitted by the criminal Court and even if it is so. he is not entitled to claim reinstatement since the Tamil Nadu Service Rules do not provide so. 27. We have also come across cases where the service rules provide that on registration of a criminal case, an employee can be kept under suspension and on acquittal by the criminal Court, he be reinstated. In such cases, the reinstatement is automatic. There may be cases where the service rules provide in spite of domestic enquiry, if the criminal Court acquits an employee honourably, he could be reinstated. In other words, the issue whether an employee has to be reinstated in service or not depends upon the question whether the service rules contain any such provision for reinstatement and not as a matter of right. Such provisions are absent in the Tamil Nadu Service Rules. For the foregoing reasons, this Court is of the considered view that there is no material for interfering with the impugned termination and also for a direction to the respondents to reinstate the petitioner in service. Accordingly, this writ petition is dismissed.