Research › Search › Judgment

J&K High Court · body

2020 DIGILAW 691 (JK)

State of J&K v. Mohammad Shafi Khan

2020-12-18

RAJNESH OSWAL, SANJEEV KUMAR

body2020
JUDGMENT : Sanjeev Kumar, J. 1. This intra court appeal is directed against the judgment dated 29th September, 2018 passed by a Single Bench of this Court in SWP No. 407/2011 titled Mohammad Shafi Khan v. State of J & K and others. 2. Briefly put the facts leading to the filing of this appeal are that the respondent (writ petitioner) while working as Store Keeper in the Limber Centre in the year 1990 was placed under suspension by the Assistant Director, Food and Supplies Department, District Baramulla vide order No. A016-21/ADB dated 13.02.1990. Pending enquiry and police investigation into the allegations of mis-appropriation/embezzlement, as it appears from the sequence of events narrated in the impugned judgment, the appellants instead of initiating disciplinary proceedings against the respondent lodged an FIR which was registered as FIR No. 12/1990 under Section 409 RPC, [as it was then in force in the State of Jammu & Kashmir] in the Police Station Bijhama, Baramulla. The police after investigation produced challan against the respondent for commission of offence punishable under Section 409 RPC in the Court of Judicial Magistrate 1st Class (Munsiff), Uri. Learned Magistrate vide its judgment dated 30th August, 1995, recorded the acquittal of the respondent on the ground that prosecution had failed to prove the charge and that the investigation was shoddy and conducted in a slipshod manner. Ordinarily with the acquittal of the petitioner from the charges of misappropriation by the competent court of law and in the absence of any departmental enquiry instituted against him, the appellants should have been well advised to revoke the suspension in the year 1995 itself. However, as is the official apathy and indolence, the respondent was not reinstated and his suspension continued. 3. Aggrieved, the respondent filed SWP No. 195/2006 seeking revocation of his suspension and reinstatement in service. During the pendency of the aforesaid writ petition and purportedly on the basis of some legal opinion tendered by Mr. M.A. Wani, the then Deputy Advocate General, the respondent was reinstated by the appellants vide order No. DCADK/Adm/SH/Bla-151 dated 3rd February, 2007. While reinstating the respondent in terms of the aforesaid order it was provided that his suspension period would be decided separately. 4. M.A. Wani, the then Deputy Advocate General, the respondent was reinstated by the appellants vide order No. DCADK/Adm/SH/Bla-151 dated 3rd February, 2007. While reinstating the respondent in terms of the aforesaid order it was provided that his suspension period would be decided separately. 4. While taking note of the aforesaid development, the Single Bench of this court disposed of SWP No. 195/2006 but provided that endorsement on the order of reinstatement that 50% of the respondent's salary shall be recovered towards shortage for liquidation, shall be decided in the enquiry proposed for dealing with suspension period. It was also observed that till the enquiry was conducted, the recovery of 50% of petitioner's salary shall stay. No enquiry in the matter was conducted yet the appellant no. 2 vide its order bearing No. DCAPDK/Adm/SWP/687/Bla dated 17th August, 2010 directed that the period of suspension of the respondent be treated as on leave due to him. Reliance in this regard was placed by the appellant no. 2 on some circular instructions issued by the Administrative Department bearing No. 02-CA & PD of 2009 dated 27.10.2009. 5. Feeling aggrieved, the respondent filed SWP No. 407/2011 seeking inter alia a writ of certiorari for quashing the order dated 17th August, 2010 and mandamus to the appellants to treat the period of suspension with effect from 13th February, 1990 to 3rd February, 2007 as on duty on the ground that petitioner had been honourably exonerated of all the charges by the competent court of law. The said writ petition was resisted by the appellants (respondents therein). The appellants contended before the writ court that as per the circular of the Administrative Department dated 27th October, 2009 (supra), the suspension of the delinquent employees involved in embezzlement/mis-appropriation of food grains was not to be treated as on duty. The writ court did not accept the stand of the appellants and finding merit in the contentions of the respondent allowed the writ petition in terms of the impugned judgment. The appellants were directed to treat the period of suspension of the respondent as on duty and pay him the salary. A further direction was also issued to the appellants to consider him for promotion to which he may be due from the date his juniors had been promoted. The appellants were directed to treat the period of suspension of the respondent as on duty and pay him the salary. A further direction was also issued to the appellants to consider him for promotion to which he may be due from the date his juniors had been promoted. It is this judgment of the Writ Court the appellants are aggrieved of and are before us in this Letters Patent Appeal. 6. Having heard learned counsel for the parties and perused the record, we are of the view that the judgment of the Writ Court is perfectly valid and in consonance with law and, therefore, does not call for interference. 7. Admittedly, the petitioner was placed under suspension on 13th February, 1990 pending enquiry and police investigation into the allegations of mis-appropriation/embezzlement against the respondent. The appellants had the option of instituting a departmental enquiry against the petitioner and even simultaneously register an FIR in the concerned police station. The appellants in their wisdom decided not to hold enquiry and rather pursued criminal prosecution. As noted above, the FIR registered against the respondent and the prosecution launched against him ended with his acquittal. The court while acquitting respondent vide its judgment dated 30th August, 1995 found that the investigation in the matter had been conducted by the police in a slipshod manner and the evidence brought on record did not support the prosecution case. In that view of the matter, it cannot be said that there is no substance in the contention of the learned counsel for the respondent that respondent earned honourable acquittal from the court. 8. It may not be in contention that the appellants could have proceeded against the respondent in disciplinary proceedings even after his acquittal in the criminal charge subject of-course to the well known parameters laid down by this court as well as the Supreme Court. We could have deliberated on such parameters to be followed in launching a parallel departmental proceeding but for the reason that the appellants choose not to hold any departmental proceedings we refrain ourselves from doing so. It is a fact that even after the acquittal of the respondent in the criminal charge by the court on 30th August, 1995, no departmental enquiry against the respondent was conducted or even envisaged. It is a fact that even after the acquittal of the respondent in the criminal charge by the court on 30th August, 1995, no departmental enquiry against the respondent was conducted or even envisaged. It is though intriguing to notice that respondent also remained quiet for 11 years and knocked the door of the Writ Court only in 2006 when he filed SWP No. 195/2006. The contention of the respondent that he had been pursuing his reinstatement with the appellants for all these years can only be accepted with a pinch of salt. There is no clear cut explanation from the respondent forthcoming as to why he waited for 11 years before he brought his grievance to this Court. Be that as it may, on the intervention of this Court as also the advice tendered by the then Additional Advocate General, the appellants reinstated the respondent from suspension leaving the issue of suspension period open to be decided separately. 9. As is further apparent from the order of reinstatement dated 3rd February, 2007, there is endorsement made to the Assistant Director, CAPD, Baramulla, that he will recover balance shortage from the monthly salary of the respondent till its liquidation. There is no clear evidence on record as to whether this stipulation in the endorsement was ever voluntarily accepted by the respondent but the fact remains that towards liquidation of shortage, the respondent even deposited a sum of Rs. 18500/-. The Writ Court, however, has found aforesaid deposit involuntary and made under coercion. Be that as it may, the fact remains that the appellants have not taken any decision with regard to conduct of disciplinary enquiry against the respondent though he was acquitted by the criminal court in the year 1995. 10. We could have accepted the contention of learned counsel for the appellants and permitted them to hold a departmental enquiry in the allegations of embezzlement despite his acquittal in the criminal charge as the scope of two enquiries is different and the standard of proof required is also entirely different. In the criminal prosecution, the accused is presumed to be innocent till charge leveled against him is proved and onus is on prosecution to bring home the charge against the accused beyond any reasonable doubt whereas the delinquent can be held guilty of the charge in the disciplinary proceedings on mere preponderance of probabilities. In the criminal prosecution, the accused is presumed to be innocent till charge leveled against him is proved and onus is on prosecution to bring home the charge against the accused beyond any reasonable doubt whereas the delinquent can be held guilty of the charge in the disciplinary proceedings on mere preponderance of probabilities. The acquittal of the respondent in the criminal case, as is observed by the court, is due to shoddy and slipshod investigation made by the police. However, keeping in view a huge time gap between the occurrence and the acquittal by the court, and his reinstatement, it would be too late in the day to vax the respondent yet again. 11. The allegation against the respondent is with regard to embezzlement of a sum of Rs. 90280/- out of which the respondent has already deposited a sum of Rs. 18500/- and, therefore, it would not be in the fitness of things to allow the appellants now to launch departmental enquiry when they did not do so for long 25 years. It is because of this reason that we are not inclined to permit the appellants to hold the departmental enquiry now though it was strenuously argued and vehemently insisted by learned Dy. AG. We, however, cannot lose sight of the fact that the respondent also remained silent and indolent in bringing the grievance before the Writ Court in time. He was acquitted of the criminal charge in the year 1995 and raised his grievance for the first time before the Writ Court in the year 2006. and as noted above, there is no explanation forthcoming as to why the respondent did not agitate his grievance and sought his reinstatement for 11 years. We can only presume that respondent was getting subsistence allowance equivalent to 75% of his salary and possibly gainfully employed somewhere. 12. In that view of the matter though we do not find any fault with the view taken by the Writ Court but would like to modify the judgment by providing that the respondent would not be entitled to treatment of his period of suspension from 30th August, 1995 to the date of filing of SWP No. 195/2006 as on duty. In that view of the matter though we do not find any fault with the view taken by the Writ Court but would like to modify the judgment by providing that the respondent would not be entitled to treatment of his period of suspension from 30th August, 1995 to the date of filing of SWP No. 195/2006 as on duty. The appellants, however, would be well within their right to treat the period of suspension with effect from 30th August, 1995 till filing of the writ petition as on leave of whatever kind due to him. However, as directed by the Writ Court, rest of the period of suspension shall be treated as on duty and for which the respondent would be entitled to salary minus the subsistence allowance, if any received by him. We also see no justification in directing the appellants to refund the amount of Rs. 18500/- already deposited by the respondent. We order accordingly. 13. With the modifications aforementioned, the judgment of the Writ Court is maintained. 14. LPA disposed of.