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2018 DIGILAW 819 (JK)

Raj Kumar Fotedar v. State of J&K

2018-10-22

SANJEEV KUMAR

body2018
JUDGMENT : 1. Shorn of unnecessary details, the facts which are relevant for the disposal of this writ petition are as under: 2. While the petitioner was discharging his duties as Junior Engineer, an FIR No. 09/2013 came to be registered on 06.02.2003 in the Police Station, Vigilance Organization, Jammu for alleged commission of offences under section 5(2) of Prevention of Corruption Act read with section 161 RPC against him. Investigation in the FIR led to the filing of the charge-sheet before the Special Judge Anti-Corruption Judge, Jammu. During the pendency of the investigation in the FIR, the petitioner was suspended by the respondent vide Government order No. 06-PDD of 2004 dated 12.01.2004. The trial remain pending almost for a period of seven years before it ended in acquittal in terms of the judgment dated 27.10.2010 passed by the learned Special Judge Anti-Corruption. Notwithstanding the acquittal of the petitioner by the trial court, the respondents decided to hold a departmental enquiry against the petitioner and also took a decision to file a criminal acquittal appeal against the judgment dated 27.10.2010 passed by the trial court. 3. Pursuant to the decision taken by the Administrative Department, Sh. P.K. Puri, Superintending Engineer, Maintenance and Rural Electrification Circle, Jammu was nominated as enquiry officer for conducting the requisite departmental enquiry against the petitioner. It appears that the Superintending Engineer, who was appointed as enquiry officer to conduct the enquiry against the petitioner, appointed a committee of three officers to conduct a detailed departmental enquiry against the petitioner and submit a report within two weeks. This was, however, immediately objected by the Chief Engineer, who vide his communication No. CEJ/Court/2077-82 dated 27.11.2011 advised the enquiry officer to conduct the enquiry himself and not delegate the said function to any person or committee. It was also conveyed to the Superintending Engineer (enquiry officer) that the constitution of the committee by him for conducting enquiry was illegal and had no sanctity in law. In the meanwhile, the committee appointed by the Superintending Engineer taking note of the judgment of acquittal passed by the trial court in favour of the petitioner and holding some enquiry, virtually exonerated the petitioner of any misconduct. In the meanwhile, the committee appointed by the Superintending Engineer taking note of the judgment of acquittal passed by the trial court in favour of the petitioner and holding some enquiry, virtually exonerated the petitioner of any misconduct. Since the Superintending Engineer, who was appointed as enquiry officer, did not carry the mandate of the directions issued by the Administrative Department, as such, the report prepared by the committee constituted by him was not accepted and a decision was taken to hold a formal departmental enquiry against the petitioner. 4. Apprehending that a formal enquiry into the misconduct could be initiated by the respondent, the petitioner pre-empted the move and challenged his suspension, besides seeking his reinstatement into service by filing SWP No. 2271/2012. While the aforesaid writ petition was pending, the respondent served upon the petitioner the statement of articles of charge and statement of imputation in support of the charge vide memorandum No. PDD/1/19/2003 dated 03.10.2012 and appointed Sh. Gurbachan Singh, Incharge Superintending Engineer, EM&RE, Circle-I, Jammu as enquiry officer. This was done by the respondent vide Government order No. 300-PDD of 2012 dated 03.10.2012. The petitioner, however, withdrew SWP No. 2271/2012 with liberty to file a fresh writ petition in terms of order of this Court dated 29.11.2012. After submitting reply to the charge-sheet, but without participating in the enquiry the petitioner chose to challenge the same by way of SWP No. 2593/2012. This Court vide order dated 10.12.2012 passed in the aforesaid writ petition stayed the enquiry proceedings. Subsequently another interim order was passed on 29.08.2013 directing the respondent No. 1 to consider the case of the petitioner and reinstate him into service within fifteen days pending decision in the writ petition. In compliance to the directions passed by the Court, the respondents stayed their hands insofar as the enquiry is concerned but passed an order being Government Order No. 92-PDD of 2014 dated 22.04.2014 reinstating the petitioner into service with immediate effect with a rider that he shall not be posted in any sensitive/important posting. In the order aforesaid, it was also stipulated that the period of suspension of the petitioner shall be decided only after the final decision in the acquittal appeal filed by the State and SWP No. 2593/2012 filed by the petitioner as also after consideration of the findings of fresh enquiry, if concluded. 5. In the order aforesaid, it was also stipulated that the period of suspension of the petitioner shall be decided only after the final decision in the acquittal appeal filed by the State and SWP No. 2593/2012 filed by the petitioner as also after consideration of the findings of fresh enquiry, if concluded. 5. It may be noted that the acquittal appeal filed by the State as also SWP No. 2593/2012 filed by the petitioner are stated to be sub judice and not finally decided. The fresh enquiry ordered by the respondent, however, had not proceeded in view of the interim directions dated 10.12.2012 passed in SWP No. 2593/2012. 6. The petitioner is aggrieved of the Government order No. 92-PDD of 2014 dated 22.04.2014 insofar as it defers the settlement of period of the suspension of the petitioner for the reasons stated in the aforesaid order. The petitioner also seeks his reinstatement into service retrospectively w.e.f. 12.01.2004 when he was placed under suspension. In short, the petitioner claims that he should be treated to be as in-service in continuity notwithstanding his suspension and held entitled to all consequential benefits including the release of increments, in-situ promotion and also the functional promotion to the post of Assistant Engineer. 7. This petition was admitted to hearing on 08.11.2017 and vide order dated 12.07.2018 the time to file counter affidavit granted to the respondents was extended by two weeks making it clear that in case of failure of the respondents to file the counter affidavit, the matter would be considered in the absence of the counter affidavit. This is how this petition was heard without their being any reply affidavit of the respondents. In the backdrop of aforesaid factual matrix, the learned counsel for the parties were heard at length. 8. Having heard learned counsel for the parties and perused the record, I am of the considered view that the order impugned does not call for any interference by this Court in exercise of its writ jurisdiction. 9. It is not in dispute that the petitioner was placed under suspension pursuant to an FIR registered in the Police Station, Vigilance Organization, Jammu for commission of offences under the Prevention of Corruption Act. He was arrested in connection with the aforesaid FIR. 9. It is not in dispute that the petitioner was placed under suspension pursuant to an FIR registered in the Police Station, Vigilance Organization, Jammu for commission of offences under the Prevention of Corruption Act. He was arrested in connection with the aforesaid FIR. Investigation was concluded by the Vigilance Organization Jammu as proved and challan was presented before the competent court of law i.e. Special Judge Anti-Corruption, Jammu (trial court). It is true, the trial ended in acquittal and the petitioner was exonerated of the charges. State was not satisfied with the judgment of acquittal passed by the trial court and therefore, preferred criminal acquittal appeal, which is still sub judice and has not been finally decided. That apart, the respondent also decided to hold a departmental enquiry into the conduct of the petitioner, his acquittal in the criminal trial notwithstanding. Initially Superintending Engineer, Mr. P. K. Puri was appointed as enquiry officer to conduct the enquiry, but he committed faux pas and instead of himself conducting the enquiry, constituted an enquiry committee to go into the allegations of misconduct of the petitioner. The enquiry report submitted by the aforesaid Superintending Engineer on the basis of material collected by the committee was not accepted by the Government and accordingly, a formal enquiry was initiated. Articles of charge and the statement of imputation in support of the charge was served upon the petitioner by the respondent and vide his order No. 300-PDD of 2012 dated 03.10.2012, Sh. Gurbhachan Singh, Incharge Superintending Engineer, EM&RE, Circle-I, Jammu was appointed as new enquiry officer. The petitioner, though submitted his reply to the articles of charge and statement of imputation, yet did not participate in further proceedings. He instead challenged the initiation of enquiry proceedings before this Court by filing SWP No. 2593/2012. The aforesaid writ petition is still pending and it is yet to be decided by this Court as to whether it is legally permissible to hold the departmental enquiry impugned in the aforesaid writ petition. No one including the petitioner can presuppose the outcome of the aforesaid writ petition. In the event the writ petition is dismissed and respondents are held entitled to proceed with the enquiry, the fate of the petitioner would be decided only on the basis of result of such enquiry. No one including the petitioner can presuppose the outcome of the aforesaid writ petition. In the event the writ petition is dismissed and respondents are held entitled to proceed with the enquiry, the fate of the petitioner would be decided only on the basis of result of such enquiry. This exactly has been observed by the respondent in the order impugned, while directing the reinstatement of the petitioner into the service after revoking his suspension. Similarly, there is no certainty with regard to the decision that could be handed down by this Court in the criminal acquittal appeal. In such situation, conceding the prayer of the petitioner for his reinstatement retrospectively with all consequential benefits would be pre-empting the decision of the acquittal appeal as well as SWP No. 2593/2012 in favour of the petitioner. The argument raised therefore, is too specious to be accepted. One may tend to accept the plea of the petitioner that criminal acquittal appeal is not continuation of the trial and the exoneration of the accused of the criminal charges by the trial court reinforces the presumption of innocence in favour of the accused as is held by some of the High Courts but that would not change the complexion of the instant case. The acquittal of an employee in a criminal trial does not per se bar the holding of departmental enquiry in all eventualities. In an appropriate case and subject to settle legal limitations, the employer can hold a departmental enquiry into the allegations of misconduct of delinquent notwithstanding his acquittal in the criminal trial of the same charges. I would not delve deep into this aspect for the simple reason that the issue is pending adjudication in the Court in SWP No. 2593/2012 and anything said here, may prejudice the case of either party in the aforesaid writ petition. 10. Be that as it may, the fact remains the issue as to whether the respondents can proceed against the petitioner departmentally despite his acquittal in the criminal trial is a matter of adjudication before the court and the decision with regard to the treatment of the suspension period of the petitioner can only be taken after the outcome of the aforesaid writ petition would be known. If writ petition is decided in favour of the petitioner and the enquiry ordered by the respondent is held not permissible under law, the petitioner may have a cause to claim the reliefs as he has prayed for in this writ petition. The things can be otherwise round also and if the writ petition is dismissed and the respondents are permitted to proceed with the enquiry, the result of such enquiry would determine as to how the period of suspension of the petitioner is to be settled. In short, this Court finds this writ petition premature. The petitioner has relied upon several judgments to point out that acquittal appeal is not a continuation of the trial and the person acquitted by the trial court is not only entitled to reinstatement into service but is also entitled to all consequential benefits that he would have been entitled to, had he not been placed under suspension and put to trial in a criminal charge. To be fair to the petitioner, the judgments relied upon by the petitioner are Abdul Majid Khan vs. State of J&K and others, [1991]0 KashLJ 653, Ghulam Nabi Baba vs State of J&K, AIR 1966 (J&K) 27 , Commissioner, Karnataka Housing Board v C. Muddaiah, 2007 (7) SCC 689 and Abdul Rashid Khan vs. Director Libraries and anr, 1977 KLJ 371. 11. I have carefully gone through the aforesaid judgments and do not find that in the aforesaid judgments any such proposition of law has been laid down, which provides that if delinquent is reinstated from suspension pending enquiry, the period of his suspension is to be treated as on duty with all consequential service benefits. In the case of C. Muddaiah (supra), the proposition of law laid down is that if an employee is prevented from earning or is deprived of the legitimate benefits wrongly, unfairly and with oblique motive, the Court can direct extension of all those benefits which he would have obtained but for illegal deprivation. The Court further goes on to hold that in an appropriate case, the court can hold that employee was willing to work but was illegally and unlawfully restrained not to do so. It is not understandable as to how the ratio of the aforesaid judgments is attracted to the instant case. The Court further goes on to hold that in an appropriate case, the court can hold that employee was willing to work but was illegally and unlawfully restrained not to do so. It is not understandable as to how the ratio of the aforesaid judgments is attracted to the instant case. The enquiry pending against the petitioner has not been withdrawn or quashed by any competent court of law but is only stayed. Therefore, the same has not become final. Similarly, the other judgments relied upon by the petitioner referred to above also lay down the principles of law to be followed for treating the period of suspension in case of exoneration of the delinquent employee of all the charges levelled against him. In one of the judgments, this Court has merely held that mere filing of the acquittal appeal does not stand in the way of reinstatement of the employee but does not deal as to how the period of suspension is to be settled awaiting the outcome of the acquittal appeal. Otherwise also, the reinstatement of the petitioner from his suspension in terms of order dated 29.08.2013 passed in SWP No. 2593/2012 is conditional and subject to the outcome of the writ petition. In this regard order dated 29.08.2013 (supra) needs to be noticed. It reads as under: “In terms of order dated 10.12.2012, this Court stayed the enquiry proceedings against the petitioner. Petitioner’s case is that he has been placed under suspension in terms of Govt. Order No. 6-PDD of 2004 dated 12th January, 2004 on account of having been arrested in trap case in FIR No. 09/2013 for commission of offence under section 5(1)(d) read with Section 5(2) of J&K P. C. Act and section 161 RPC, Police Station Vigilance Organization, Jammu. It is further submitted that in terms of judgment passed on 27.10.2010 by the court of Special Judge Anticorruption, Jammu, the petitioner has been acquitted from charges levelled against him. On acquittal, respondents have initiated Departmental Enquiry, which has resulted in submission of the enquiry report by the Committee Constituted, exonerating the petitioner from the charges levelled against him. Despite petitioner’s exoneration both from criminal as also in Departmental enquiry, respondents have yet initiated fresh enquiry in terms of fresh process and appointed Sh. Gurbachan Singh Incharge Superintending Engineer, EM&RE Circle-I, Jammu as Enquiry Officer. Despite petitioner’s exoneration both from criminal as also in Departmental enquiry, respondents have yet initiated fresh enquiry in terms of fresh process and appointed Sh. Gurbachan Singh Incharge Superintending Engineer, EM&RE Circle-I, Jammu as Enquiry Officer. On consideration of the matter, this court in terms of order passed on 10.12.2012 stayed the proceedings and respondents were required to take steps for petitioner’s reinstatement into service. Admittedly the petitioner has remained under suspension for the last about nine years that too when he stands acquitted from the criminal as also from civil proceedings. It is not understood as to why the respondents are bent upon to keep the petitioner under suspension for such a long time without extracting work till he is in service. From perusal of the records, it transpired that respondent No. 1 is the only person being interested to keep the matter pending without any effective results, thereby causing great prejudice to the interest of the petitioner as also loss to the state exchequer, because the petitioner is being paid suspension allowance at the rate of 75% of the pay without extracting work from him. In the above back ground, the instant CMP is disposed of by directing the respondents particularly respondent No.1 to consider the case of the petitioner and reinstate him into service within 15days pending decision in the writ petition. Registry to convey this order to respondent No. 1 for compliance.” 12. Be that as it may, the facts of the instant case are entirely different than the factual matrix obtaining in the cases cited by the learned counsel for the petitioner. 13. For the reasons stated above, I am of the view that this writ petition is premature and the petitioner has no cause to challenge the impugned order to the extent prayed for, at this stage. The writ petition is, therefore, not maintainable and the same is dismissed. 14. No order as to costs.