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2013 DIGILAW 47 (UTT)

MANOJ KUMAR v. STATE OF UTTARAKHAND

2013-02-20

V.K.Bist

body2013
JUDGMENT Hon’ble V.K. Bist, J. CLMA No. 843/13 (Delay Condonation Application) Heard. 2. For the reasons stated, the delay condonation application is allowed. Counter affidavit filed by the respondent is taken on record. 3. By way of instant petition, the petitioner is seeking direction to the respondents to reinstate him into service will all consequential benefits and service benefits. 4. The petitioner was an employee in the State Observatory, Nainital on the post of Laboratory Assistant. One criminal case was registered against the petitioner and he was arrested and sent to jail. As a consequence thereof, the petitioner was suspended from service. The criminal case being Session Trial No. 106 of 2003 under Section 302 & 120-B was tried by District and Sessions Judge, Nainital and the Session Judge vide judgment and order dated 28.09.2004 convicted the petitioner for the offence punishable under Section 302/34 I.P.C. As a result of conviction, the petitioner was terminated from service vide order dated 12.04.2005. Against the said conviction, the convict/petitioner preferred a criminal appeal bearing no. 303 of 2004 and this Court vide judgment and order dated 30.03.2011 allowed the appeal of the petitioner and acquitted the petitioner from the offence punishable under Section 302 & 120-B I.P.C. 5. The petitioner was terminated from the service vide order dated 12.04.2005 alleging that the petitioner has been charged in the said offence under Section 302/34 I.P.C. and has been convicted by the Sessions Judge. It is asserted that, now the petitioner has been acquitted from the charge levelled against him, hence the departmental charges rendered infructuous. Further, even after acquittal from the charges, the respondents are not reinstating the petitioner. 6. The respondent no.3 filed a counter affidavit in which merely mentioning that the State is going to file an S.L.P. before the Apex Court, have not controverted the factual aspects depicted in the petition. 7. From perusal of termination order, it is evident that dismissal of petitioner from service of respondent is based on the conviction of Sessions Judge. As stated above, the petitioner filed an appeal against the conviction before the High Court, which stood allowed and the conviction of petitioner alongwith another was set-aside. The High Court held that the prosecution has failed in proving charge of offences punishable under Section 302 and 120-B I.P.C. against accused/appellants Manoj Kumar and Neelam Shilong. 8. As stated above, the petitioner filed an appeal against the conviction before the High Court, which stood allowed and the conviction of petitioner alongwith another was set-aside. The High Court held that the prosecution has failed in proving charge of offences punishable under Section 302 and 120-B I.P.C. against accused/appellants Manoj Kumar and Neelam Shilong. 8. Pursuant to the judgment of the High Court, the petitioner applied for reinstatement and moved application on 25.07.2011 and when no action was taken on the representation of the petitioner, the petitioner again submitted representation on 24.01.2012 and 31.03.2012. Due to inaction on the part of the respondents, the petitioner constrained to file instant petition. 9. 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? 10. 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. 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. 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.” 4 11. The petitioner’s application for reinstatement has remained pending and no action whatsoever has been taken by the respondents as yet. 12. The law on this issue has been settled by a catena of cases by the Supreme Court of India. 13. 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. 13. 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. (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.” 14. 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. 15. 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. 16. 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.” 17. 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. 18. 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. 18. 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. 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.” 19. 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. 20. 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 set-aside. 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. 8 21. In the light of the aforesaid, the writ petition is allowed. The respondents are directed to reinstate the petitioner into service forthwith with all consequential benefits. However, the respondents-employer should keep in mind that the petitioner has been honourably acquitted on merits by a superior court of law. 8 21. In the light of the aforesaid, the writ petition is allowed. The respondents are directed to reinstate the petitioner into service forthwith with all consequential benefits. No order as to costs.