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2021 DIGILAW 609 (JHR)

Chandrika Prasad Yadav v. State of Jharkhand

2021-08-10

DEEPAK ROSHAN

body2021
JUDGMENT : Heard through V.C. 2. The instant writ application has been preferred by the petitioner praying for quashing and setting aside the order dated 08.07.2010, passed by the respondent No.3, whereby the service of the petitioner has been terminated. The petitioner has further prayed for a direction upon the concerned respondent to reinstate the petitioner in service with all consequential benefits. 3. The facts of the case lie in a narrow compass. The petitioner was appointed on the post of Assistant Teacher on 08.09.1987 and pursuant thereto; he joined the said post in Hazaribagh District (presently, Koderma) on 17.09.1987. While the petitioner was posted and working at Koderma, the Vigilance Bureau, Ranchi has lodged a complaint against this petitioner vide Complaint Case No.115/2008 which was registered as Satgawan P.S. Case No.44/2008, corresponding to G.R. No.812/2008. Pursuant to the First Information Report; the respondent No.3 terminated the service of the petitioner without holding any departmental proceeding and/or calling a meeting of Establishment Committee. At this stage, it is pertinent to mention here that the said impugned order clearly transpires that it has been passed after holding internal inquiry but only pursuant to the filing of FIR. Subsequently, in the year, 2012, after thorough investigation, the police filed a final report before the Court on 31.03.2012 mentioning therein that the entire allegation against the petitioner is false and the case has been filed as mistake of fact. Subsequently, the said final report filed by the Investigating Officer has been accepted by the Court vide order dated 24.08.2012. It has been informed by learned counsel for the parties that the State has never challenged the order accepting the final form; meaning thereby to say that the said dispute was set at rest. Pursuant to the aforesaid order accepting the final form; the petitioner approached the respondent No.3 for his reinstatement but the same was denied and forced with the situation, the petitioner approached this Court. 4. Mr. Prashant Pallav, learned counsel for the petitioner submits that the FIR and the memo of charge are based on same set of fact arising out of Complaint Case No.115 of 2008, dated 19.08.2008 lodged by Vigilance Bureau, Ranchi. In the said criminal case, a final report has been submitted by the Investigating Officer mentioning therein that the entire allegation against the petitioner is false and case has been filed as mistake of fact. In the said criminal case, a final report has been submitted by the Investigating Officer mentioning therein that the entire allegation against the petitioner is false and case has been filed as mistake of fact. The said final form is annexed as Annexure- 4 to the writ application. Thereafter, the petitioner filed a representation on 12th September, 2012 but no decision has been taken. 5. He further submits that the petitioner was terminated from the post of Assistant Teacher without initiation of any departmental proceeding or without giving him any opportunity of being heard. He further contended that when the FIR and memo of charge are based on same set of facts and evidence then after filing of the final report submitted by the Investigating Officer and accepted by the Court mentioning therein that the entire allegation against the petitioner is false and case has been filed as mistake of fact; there is no justification in not reinstating this petitioner. He contended that the entire departmental case is a case of no evidence, inasmuch as, the impugned order itself speaks about the criminal case and in the said criminal case the petitioner has been honorably acquitted, so much so that he has not even put on trial. Learned counsel further referred the judgment of Hon’ble Apex Court in the case of Capt. M. Paul Anthony versus Bharat Gold Mines Ltd. and Another reported in (1999) 3 SCC 679 wherein the Hon’ble Apex Court has held in paragraph No.34 as under: “34. There is yet another reason for discarding the whole of the case of the respondents. As pointed out earlier, the criminal case as also the departmental proceedings were based on identical set of facts, namely, “the raid conducted at the appellant’s residence and recovery of incriminating articles therefrom”. The findings recorded by the enquiry officer, a copy of which has been placed before us, indicate that the charges framed against the appellant were sought to be proved by police officers and panch witnesses, who had raided the house of the appellant and had effected recovery. They were the only witnesses examined by the enquiry officer and the enquiry officer, relying upon their statements, came to the conclusion that the charges were established against the appellant. They were the only witnesses examined by the enquiry officer and the enquiry officer, relying upon their statements, came to the conclusion that the charges were established against the appellant. The same witnesses were examined in the criminal case but the Court, on a consideration of the entire evidence, came to the conclusion that no search was conducted nor was any recovery made from the residence of the appellant. The whole case of the prosecution was thrown out and the appellant was acquitted. In this situation, therefore, where the appellant is acquitted by a judicial pronouncement with the finding that the “raid and recovery” at the residence of the appellant were not proved, it would be unjust, unfair and rather oppressive to allow the findings recorded at the ex parte departmental proceedings to stand.” He further referred the judgment rendered in the case of R.P. Kapur Versus Union of India and Another reported in (1964) 5 SCR 431 wherein the Hon’ble Apex Court has held that if the trial of Criminal charge results in conviction, disciplinary proceedings are bound to follow against public servants so convicted. Even in case of acquittal, proceedings may follow where the acquittal is other than honorable. He contended that in the instant case there cannot be a better case of acquittal where the petitioner has not even put on trial and the State has accepted the final form and did not challenge before any forum. He submits that acceptance of final form absolutely on merit amounts to clear exoneration of the petitioner by the trial court. 6. On the question of back wages, learned counsel submits that since it was not a fault of the petitioner, as such, the petitioner should be reinstated in service along with back wages for that he relied upon the judgment passed in the case of Shobha Ram Raturi Versus Haryana Vidyut Prasaran Nigam Limited & Ors. reported in (2016) 16 SCC 663 wherein at paragraph Nos.2 & 3 the Hon’ble Apex Court has held as under: “2. The denial of back wages to the appellant by the High Court vide its order dated 14-9-2010 was assailed by the appellant by filing Letters Patent Appeal No. 489 of 2011. The High Court rejected the claim of the appellant, while dismissing the letters patent appeal on 26-5-2011. The denial of back wages to the appellant by the High Court vide its order dated 14-9-2010 was assailed by the appellant by filing Letters Patent Appeal No. 489 of 2011. The High Court rejected the claim of the appellant, while dismissing the letters patent appeal on 26-5-2011. The orders dated 14-9-2010 and 26-5-2011 passed by the High Court limited to the issue of payment of back wages, are the subjectmatter of challenge before this Court. 3. Having given our thoughtful consideration to the controversy, we are satisfied, that after the impugned order of retirement dated 31-12-2002 was set aside, the appellant was entitled to all consequential benefits. The fault lies with the respondents in not having utilised the services of the appellant for the period from 1-1-2003 to 31-12-2005. Had the appellant been allowed to continue in service, he would have readily discharged his duties. Having restrained him from rendering his services with effect from 1-1-2003 to 31-12- 2005, the respondent cannot be allowed to press the self-serving plea of denying him wages for the period in question, on the plea of the principle of “no work no pay”.” 7. Per contra, Mr. Rahul Saboo, learned counsel for the respondent State opposed the contention of the petitioner and raises a preliminary objection of delay and laches, inasmuch as, the criminal case was culminated in the year 2012 however, the instant writ application has been filed in the year 2014. He further submits that departmental proceedings and criminal proceedings are two different proceedings and cannot be equated in any manner. The law is now well settled that even if a delinquent is acquitted in the criminal case this will not bind the disciplinary authority to accept the finding of the criminal court. Learned counsel further submits that in the instant case it has been found that petitioner has done Matriculation from State substitute High School, Satgawan and the Principal of the School has said vide its letter dated 25.04.2010 that the self-attested Matriculation Certificate produced by the petitioner was forged; as such it is a case of fraud and due to this fact; the Vigilance Department of the State has investigated the issue. Merely because the final form has been submitted by the Investigating Officer will not ipso facto absolve the petitioner from the charges. Merely because the final form has been submitted by the Investigating Officer will not ipso facto absolve the petitioner from the charges. He further referred to the judgment passed in the case of State of Karnataka and Another Versus N. Gangaraj reported in (2020) 3 SCC 423 wherein the Hon’ble Apex Court at paragraph No.12 has held as under: “12. In State Bank of Bikaner & Jaipur v. Nemi Chand Nalwaya, this Court held that the courts will not act as an appellate court and reassess the evidence led in the domestic enquiry, nor interfere on the ground that another view is possible on the material on record. If the enquiry has been fairly and properly held and the findings are based on evidence, the question of adequacy of the evidence or the reliable nature of the evidence will not be ground for interfering with the findings in departmental enquiries. The Court held as under: “7. It is now well settled that the courts will not act as an appellate court and reassess the evidence led in the domestic enquiry, nor interfere on the ground that another view is possible on the material on record. If the enquiry has been fairly and properly held and the findings are based on evidence, the question of adequacy of the evidence or the reliable nature of the evidence will not be grounds for interfering with the findings in departmental enquiries. Therefore, courts will not interfere with findings of fact recorded in departmental enquiries, except where such findings are based on no evidence or where they are clearly perverse. The test to find out perversity is to see whether a tribunal acting reasonably could have arrived at such conclusion or finding, on the material on record. The courts will however interfere with the findings in disciplinary matters, if principles of natural justice or statutory regulations have been violated or if the order is found to be arbitrary, capricious, mala fide or based on extraneous considerations. * * * 10. The fact that the criminal court subsequently acquitted the respondent by giving him the benefit of doubt, will not in any way render a completed disciplinary proceeding invalid nor affect the validity of the finding of guilt or consequential punishment. * * * 10. The fact that the criminal court subsequently acquitted the respondent by giving him the benefit of doubt, will not in any way render a completed disciplinary proceeding invalid nor affect the validity of the finding of guilt or consequential punishment. The standard of proof required in criminal proceedings being different from the standard of proof required in departmental enquiries, the same charges and evidence may lead to different results in the two proceedings, that is, finding of guilt in departmental proceedings and an acquittal by giving benefit of doubt in the criminal proceedings. This is more so when the departmental proceedings are more proximate to the incident, in point of time, when compared to the criminal proceedings. The findings by the criminal court will have no effect on previously concluded domestic enquiry. An employee who allows the findings in the enquiry and the punishment by the disciplinary authority to attain finality by non-challenge, cannot after several years, challenge the decision on the ground that subsequently, the criminal court has acquitted him.” 8. He lastly submits that fraud vitiates everything. In this regard he relied upon the judgment passed in the case of Devendra Kumar Versus State of Uttaranchal and Others reported in (2013) 9 SCC 363 wherein the Hon’ble Apex Court has held at paragraph Nos. 13 and 25 as under: “13. It is a settled proposition of law that where an applicant gets an office by misrepresenting the facts or by playing fraud upon the competent authority, such an order cannot be sustained in the eye of the law. “Fraud avoids all judicial acts, ecclesiastical or temporal.” In Lazarus Estates Ltd. v. Beasley the Court observed without equivocation that: “… No judgment of a court, no order of a Minister can be allowed to stand if it has been obtained by fraud, for fraud unravels everything.” 25. More so, if the initial action is not in consonance with law, the subsequent conduct of a party cannot sanctify the same. Sublato fundamento cadit opus — a foundation being removed, the superstructure falls. A person having done wrong cannot take advantage of his own wrong and plead bar of any law to frustrate the lawful trial by a competent court. In such a case the legal maxim nullus commodum capere potest de injuria sua propria applies. Sublato fundamento cadit opus — a foundation being removed, the superstructure falls. A person having done wrong cannot take advantage of his own wrong and plead bar of any law to frustrate the lawful trial by a competent court. In such a case the legal maxim nullus commodum capere potest de injuria sua propria applies. The persons violating the law cannot be permitted to urge that their offence cannot be subjected to inquiry, trial or investigation. Nor can a person claim any right arising out of his own wrongdoing (jus ex injuria non oritur).” 9. On the question of back wages, learned counsel submits that since the petitioner did not work for the period from the date of dismissal; as such he is not entitled for any relief. He concluded his argument by submitting that the Writ Court cannot go in details and cannot appreciate evidence. 10. Having heard learned counsel for the parties and after going through the documents annexed with the respective affidavits and the averments made therein it appears that the petitioner was appointed as Assistant Teacher in the year 1987 and was doing his duty regularly and all of a sudden after 23 years of his service; a criminal case was lodged against this petitioner being Complaint Case No.115 of 2008, which was registered as Satgawan P.S. Case No.44 of 2008. Form record it further transpires that while the investigation was going on by the Vigilance Department; the department, all of a sudden terminated the petitioner vide its order dated 08.07.2010. From record it appears that no principle of natural justice has been followed in this case in true letter and spirit, inasmuch as, no proper show cause notice was issued to this petitioner and no witnesses were ever examined. In other words, no departmental proceeding has been initiated or culminated rather the petitioner has been terminated all of a sudden on the basis of some enquiry and one letters given by the Principal of the School that from the cross list it appears that the petitioner had submitted forged certificate since as per the cross list he failed in the examination. 11. At this stage it is pertinent to mention here that the principal of the school whose letter created the entire cause of action has not been examined. 11. At this stage it is pertinent to mention here that the principal of the school whose letter created the entire cause of action has not been examined. It further transpires from the counter affidavit filed by the Bihar School Examination Board that the Board vide letter dated 11.04.2018 has sent requisition to the school concerned for sending the original ‘Dupatiya’ and a copy of relevant cross list duly certified by the District Education Officer in order to ascertain and verify the correction and genuineness of the claim of the petitioner’s document. Even the Board deputed a special messenger vide order dated 02.08.2018 along with a reminder request letter to the Head- Master to hand over the required documents; however, no documents were handed over to the messenger. Thus, there would not be any difficulty in holding that that the letter of the principal has not been proven in the internal enquiry. Now the law is well settled that any evidence or document which is to be relied by the respondents/department should first be given to the delinquent and further the author of the document should also be examined. However, in the instant case since no departmental proceeding was initiated; there was no question of any examination of document or any witness. 12. Much has been argued by learned counsel for the respondent that fraud vitiates everything. This Court is in agreement with the settled principle that definitely fraud vitiates everything, but in the background of this case it is necessary to state that for the purpose of this act of fraud; the Vigilance Department initiated a proceeding and investigated the entire matter and finally came to the conclusion that “the entire allegation against the petitioner is false and case has been filed by mistake of fact.” It goes without saying that the Vigilance Department must have made an enquiry with several persons and came to the conclusion that it is a case of mistake of fact. On the other hand, the disciplinary authority without holding any proceeding and without examining any witness has terminated the petitioner from service who was serving since last 23 years. In view of the aforesaid discussions, it is held that it is not a case of fraud; rather it is a case of mistake of fact. 13. Even otherwise, the law is now no more res integra. In view of the aforesaid discussions, it is held that it is not a case of fraud; rather it is a case of mistake of fact. 13. Even otherwise, the law is now no more res integra. If the charge in a criminal case and the departmental proceeding are same and similar; without there being any iota of difference, then the decision of the criminal court cannot be brushed aside. Even in the case of R.P. Kapur (supra) the Hon’ble Apex Court has held that if the trial of criminal charge results in conviction, disciplinary proceeding is bound to follow against public servant convicted. Even in a case of acquittal, proceedings may follow, where the acquittal is other than honorable. In the attending facts of the case that after investigation it was found that the case is not even fit for subjecting the petitioner for trial and as such, the petitioner’s case stands on a better footing. 14. Lastly, the final report of the investigating officer cannot be brushed aside, where he has categorically stated that criminal investigation is an outcome of mistake of fact. This clearly goes to show that though there might have been fraud committed by some other person but due to mistaken identity; the petitioner has been entangled in this case. All these issues have not been considered by the respondents. 15. It has been informed by learned counsel for the petitioner that after the submission of final form; the petitioner approached the respondent authorities by filing representation but nothing could be done and that is the reason he was forced to approach this Court. At this stage, I would like to discuss the preliminary objection with regard to delay and laches raised by the respondents. In this regard, the fact clearly shows that the final form was submitted in the month of March, 2012 which was accepted by the learned trial court in the month of August, 2012 and thereafter, the petitioner approached the respondent No.3 for reinstatement and the instant writ application has been filed in the year, 2014. As such, there is no such delay in approaching this Court so as to brush aside the case on the technical point. 16. As such, there is no such delay in approaching this Court so as to brush aside the case on the technical point. 16. At the cost of repetition, the criminal case and the departmental proceeding was based on identical set of fact; as such there is no reason why the respondents should not accept the finding of the criminal case; so much so that the department has failed to conduct any departmental proceedings and/or to call the witness who has sent the letters and without giving any opportunity to the petitioner of being heard; just terminated him from service. 17. Learned counsel for the respondent had also drawn attention of this Court towards the averments made in the counter affidavit and submitted that the petitioner has committed fraud in obtaining the certificate. In this regard, this Court is of the firm opinion that when the Vigilance Department of the State after thorough investigation came to the conclusion that the initiation of the criminal investigation is an outcome of mistake of fact and submitted the final form; there is no reason that the departmental authority should ignore the said finding and departmental authority cannot go independently on a charge of fraud of its own only on the basis of few letters sent by few persons who has not even been examined. 18. In view of the aforesaid facts and circumstances of the case, the instant writ application is allowed and the order dated 08.07.2010, passed by the respondent No.3, whereby the service of the petitioner has been terminated, is hereby, quashed and set-aside. 19. It has been informed by the learned counsel for the petitioner that the petitioner has now retired. In this regard, relying upon the ratio as laid down in the case of Shobha Ram Raturi (supra) this Court is of the view that in the instant case the fault lies with the respondents in not having utilize the services of the petitioner. If a proper departmental proceeding would have been initiated the facts would have been otherwise and certainly if the petitioner would have been allowed to continue in service; he would have readily discharged his duties. If a proper departmental proceeding would have been initiated the facts would have been otherwise and certainly if the petitioner would have been allowed to continue in service; he would have readily discharged his duties. Having restrained him from discharging his duties by termination him; the respondent cannot be allowed to thrust the prayer of denying him wages for the period from the date of termination till the date of superannuation, on the plea of the principle of “no work no pay. Thus, the respondents are directed to give all consequential benefits to the petitioner within a period of twelve weeks from the date of receipt/production of copy of this order. 20. With the aforesaid terms, the instant writ application is allowed.