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2016 DIGILAW 174 (JHR)

Bhagwan Ram v. State of Bihar

2016-01-21

PRAMATH PATNAIK

body2016
JUDGMENT : Pramath Patnaik, J. 1. In the accompanied writ application, the petitioner has inter-alia, prayed for quashing order dated 28.09.1988, by which petitioner has been discharged from services and order dated 20.05.1999, by which, the appeal filed by the petitioner against the order of dismissal has been rejected and further for reinstatement of the petitioner on his earlier post. 2. The facts, as disclosed, in the writ application, in a nutshell is that petitioner while discharging his duty as Constable in Bihar Military Police, a criminal case was lodged against the petitioner, on the basis of which a departmental enquiry was initiated, in which, the allegation against the petitioner was found to be true and accordingly, the disciplinary authority vide order dated 28.09.1988 dismissed the petitioner from services. Being aggrieved the petitioner approached this Court by filing CWJC No. 576 of 1996, which was disposed of as withdrawn giving liberty to the petitioner to file mercy appeal before the authority concerned. Thereafter, the petitioner preferred appeal, which was also rejected by the appellate authority vide order dated 20.05.1999. 3. Being aggrieved by the order of dismissal dated 28.09.1988 and appellate order dated 20.05.1999, the petitioner left with no efficacious, speedy and alternative remedy has approached this Court under Article 226 of the Constitution of India for redressal of his grievances. 4. Heard Ms. Ritu Kumar, learned counsel appearing for the petitioner and J.C. to learned A.A.G. for the respondents. 5. Ms. Ritu Kumar, learned counsel appearing for the petitioner submitted that the appellate authority without considering the fact that the petitioner has been acquitted in the criminal case, being S.T. No. 90/92 41/93, vide order dated 30.11.1995, which is the basis of initiation of departmental proceeding against the petitioner, has passed a cryptic order, rejecting the appeal preferred by the petitioner. Therefore, in view of the judgment passed by the trial Court in the criminal case, the conclusion of the conducting officer in the proceeding resulting in dismissal of the petitioner from services is vitiated in the eye of law. 6. Therefore, in view of the judgment passed by the trial Court in the criminal case, the conclusion of the conducting officer in the proceeding resulting in dismissal of the petitioner from services is vitiated in the eye of law. 6. In support of his argument, learned counsel for the petitioner referred to a judgment rendered in the case of Divisional Controller, Karnataka, State Road Transport Corporation vs. M.G. Vittal Rao, (2012) 1 SCC 442 , wherein the Hon'ble Apex Court has held that question of considering reinstatement after decision of acquittal or discharge by a competent criminal court arises only if dismissal from services was based on conviction by criminal court in view of provision of Article 311 (2) second proviso (a) of Constitution or analogous provisions in statutory rules applicable in a case. 7. It has been submitted that in the present case dismissal of the petitioner is based solely on the ground that a criminal case was pending against the petitioner, in which, the petitioner has now been acquitted Hence, in the changed circumstances, case of the petitioner may be considered and impugned order of dismissal may be quashed. 8. Per contra, counter affidavits have been filed by the respondent controverting the averments made in the writ application. Reiterating the fact as stated in the counter affidavit, it has been submitted while dispensing with the services of the petitioner the respondents have followed the principles of natural justice as well as the procedure of departmental enquiry. It has further been submitted that acquittal in criminal case is different and in the departmental proceeding the charges against the petitioner are proved and he is found guilty of the charges. It has further been submitted that the case law cited by the counsel for the petitioner is not applicable in the facts of the present case. 9. On perusal of memo of charge, it appears that departmental proceeding was initiated on the basis of fact a criminal case was initiated against the petitioner, in which, he was also arrested. But, from perusal of order passed in S.T. No. 90/92 41/93 dated 30.11.1995, it appears that the petitioner has been acquitted from charges as there was no evidence against the petitioner. 10. In such view of the matter, the impugned order of dismissal dated 28.09.1988 and appellate order dated 20.05.1999 are hereby quashed and set aside. But, from perusal of order passed in S.T. No. 90/92 41/93 dated 30.11.1995, it appears that the petitioner has been acquitted from charges as there was no evidence against the petitioner. 10. In such view of the matter, the impugned order of dismissal dated 28.09.1988 and appellate order dated 20.05.1999 are hereby quashed and set aside. The matter is remitted back to the disciplinary authority to take a fresh decision taking into account the fact that the petitioner has now acquitted from criminal case and case laws cited by learned counsel for the petitioner, as above, and pass a reasoned order within a period of four months from the date of receipt/ production of copy of this order. 11. With the aforesaid observations and directions, the writ petition stands disposed of.