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2025 DIGILAW 100 (KER)

K. Sunil Kumar v. Food Corporation of India (FCI)

2025-01-22

D.K.SINGH

body2025
JUDGMENT Heard Mr S P Aravindakshan Pillay learned Counsel for the petitioner, and Mr Jose Kuriakose learned Standing Counsel for the Food Corporation of India (FCI). Facts : 2. The present writ petition has been filed by the petitioner, who is employed as Manager (General) in the service of the Food Corporation of India (?FCI? for short), aggrieved by the non-regularization of his period of suspension with effect from 16.08.2015 to 15.02.2016 as a duty for all purposes. 2.1 The facts of the case, as stated in the writ petition, disclose that the petitioner was implicated in an Abkari case while working as Assistant Grade-1 (General) at the Food Corporation of India?s District office, Kannur. He was in judicial custody from 16.08.2015 until he got bail on 09.09.2015. 2.2 As per the final report submitted by the Excise Department vide charge sheet no.31/2016 dated 29.02.2016 under Section 173 of Cr.P.C, the petitioner was apprehended transporting 14.25 litres of foreign liquor, which was seized by the Excise Officers and Crime No.129/2015 under Section 58 of the Abkari Act was registered against him. The petitioner was sent to judicial custody on 16.08.2015. The petitioner was placed under suspension in terms of sub-regulation 2(a) of Regulation 66 of the FCI (staff) Regulation 1971, with a change in headquarters to District Office Kozhikode. The suspension was extended for a period of 90 days vide the order dated 14.12.2015, and thereafter, the suspension was revoked with effect from 15.02.2016 vide the order dated 17.02.2016. 3. The Disciplinary proceedings were initiated against the petitioner under Regulation 58 of the FCI (Staff) Regulations 1971 vide Memorandum dated 07.03.2017, for the following charges:- ?ARTICLE-1 Shri K Sunil Kumar, Asst. Grade-I (Genl.), while working at FCI, District Office, Kannur has behaved in a manner very much unbecoming of an employee of the Corporation. As per the final report submitted by the Excise Department charge sheet No. 31/16, dtd: 29.02.2016 under section 173 Cr.PC, the Official on 16.08.2015 at 06.45 AM on the road Edathodi to Vatakara Railway station in front of Rinsha Hotel while the CO (Charged Official) transporting 14.25 Litrs foreign Liquor of Mahi, Excise Inspector Shri R-N-Byju and party who were the Officers of Vatakara Excise Circle detected the crime and registered case as Crime No.129/2015 under Section 58 of Abkari Act 1077. Also the case is in Assistant Sessions Court, Vatakara vide Case number SC No.866/16. Also the case is in Assistant Sessions Court, Vatakara vide Case number SC No.866/16. Accused and the seized articles were produced before the JFCM Vatakara and the accused was remanded by the Honble Court. Thus, Shri K Sunil Kumar, Asst. Grade- 1(Genl) has contravened Regulation 31, 32,45 & 32.A (5), (17), (19), (24), (30) and (38)?of FCI(Staff) Regulations, 1971.? 3.1 The Enquiry Officer concluded that the charge against the petitioner was proved, and the Disciplinary Authority, vide the punishment order dated 07.08.2018 [Ext P4], imposed the penalty of ?reduction to two-stage lower in the time scale of pay for three years with cumulative effect but same shall not have the effect of postponing his future increment of pay after penalty period?. 3.2 The Assistant Session Judge Vatakara, in Sessions Case No.866/2016, acquitted the petitioner in the Abkari case. The judgment of the Assistant Session Judge, Vatakara, dated 30.03.2021 in Sessions case No.866/2016, has been placed on record. Paragraphs 25 and 26 of the said judgment would read as under:- ?After analysing the entire evidence, this Court find that there are suspicious circumstances behind the apprehension of the accused as alleged by the prosecution. Since the liquor bottles produced before the Court do not show that there are hologram of the State of Puducherry, prosecution case cannot be accepted because PW5, the detecting Officer deposed that there was hologram of Puducherry State on those bottles. Inventory prepared by the Deputy Excise Commissioner is Incomplete, and it does not give correct details of the bottles alleged to have been seized from the possession of the accused. To conclude, this court hold that prosecution has not succeeded in establishing the offence against accused beyond reasonable doubt. Points found against the prosecution. 26. Point No.(III):- In view of the finding on Point Nos.(i) and (ii), the accused is not found guilty of offfence punishable under Section 55(a) and 58 of the Abkari Act and he is acquitted u/s.235 Cr.P.C. Bail bond executed by the accused stands cancelled and he is set at liberty forthwith.? 3.3 After the petitioner was acquitted by the Court of Sessions in Sessions Case No.866/2016 vide judgment dated 30.03.2021. The petitioner filed an appeal before the Executive Director (South)/ Appellate Authority against the punishment order passed by the Disciplinary Authority in Ext.P4. 3.3 After the petitioner was acquitted by the Court of Sessions in Sessions Case No.866/2016 vide judgment dated 30.03.2021. The petitioner filed an appeal before the Executive Director (South)/ Appellate Authority against the punishment order passed by the Disciplinary Authority in Ext.P4. The Appellate Authority, after taking note of the judgment dated 30.03.2021 of the Assistant Sessions Court, Vatakara, and hearing the petitioner at length was of the view that the charges framed in the disciplinary proceedings against the petitioner were based on the charge sheet filed against him by the Excise Department and the charge memo issued to the petitioner was similar to the criminal case filed against the petitioner. Therefore, the judgment passed by the Sessions Court was required to be taken into cognizance. The petitioner was exonerated from the charges framed against him by the Disciplinary Authority. Thus, the petitioner was exonerated from the penalty of a ?reduction of two-stage lower in the time scale of pay for three years with the cumulative effect, but the same shall not have the effect of postponing his future increment of pay after the penalty period?. 4. After exoneration by the Appellate Authority vide order dated?04.08.2021 in Ext.P6, the petitioner moved further representation dated 24.08.2021 requesting the Disciplinary Authority to treat the suspension period as the period spent on duty as per the Sub-Regulation 8(a) of Regulation 66 of FCI (Staff) Regulations 1971 and requested for payment of full pay and allowances. 4.1 The Disciplinary Authority vide impugned order dated?22.11.2021, on Ext.P7 representation of the petitioner dated 24.08.2021, held that the petitioner?s acquittal was not ?honourable? from the charges levelled against him. The petitioner was suspended vide order dated?19.08.2015 on his arrest on 16.08.2015 in the Excise case. He was granted bail only on 09.09.2015. The petitioner, however, reported at District Office Calicut only on 12.11.2015 and left the Headquarters on the same day without obtaining prior permission, and he did not give any explanation for his absence from 09.09.2015 to 11.11.2015. 4.2 The petitioner, again, remained unauthorizedly absent from?13.11.2015 to 15.01.2016, 17.01.2016 to 14.02.2016 and 15.02.2016 to 10.03.2016. Therefore, the Disciplinary Authority was of the view that the period of suspension from 16.08.2015 to 15.02.2016 cannot be treated as the period spent on duty. 4.3 Aggrieved by the Disciplinary Authority?s decision, the petitioner preferred an appeal to the Executive Director (South)/ the Appellate Authority. Therefore, the Disciplinary Authority was of the view that the period of suspension from 16.08.2015 to 15.02.2016 cannot be treated as the period spent on duty. 4.3 Aggrieved by the Disciplinary Authority?s decision, the petitioner preferred an appeal to the Executive Director (South)/ the Appellate Authority. The Appellate Authority vide impugned order dated 12.09.2022 in Ext.P10 did not find substance in the appeal and dismissed the appeal. Against the said decision of the Appellate Authority, the petitioner filed a Review before the Managing Director/ the Reviewing Authority of the Food Corporation of India. However, the said Review Petition was dismissed vide order dated 14.11.2023 in Ext.P12. Petitioners? submission : 5. The learned Counsel for the petitioner submits that the findings recorded by the Disciplinary Authority in the impugned order in Ext.P8 that the petitioner?s acquittal in the criminal case was not ?honourable?, is not correct. The petitioner was honourably acquitted. On that basis, the petitioner was exonerated from the punishment of reduction of two-stage lower in the time scale of pay for three years with cumulative effect. 5.1 The learned Counsel further submits that after the examination of the evidence brought on record by the prosecution, the Sessions Court did not find the charges proved against the petitioner, and therefore, he was acquitted by the Sessions Court in the Criminal Case. The findings recorded by the Disciplinary Authority, which has been upheld by the Appellate Authority and the Reviewing Authority, are against several judgments including the judgments in the case of State of West Bengal v. Sankar Ghosh, 2014 (3) SCC 610 ; Deputy Inspector General of Police v. S Samuthiram, 2013 (1) SCC 598 and Imtiyaz Ahmad Malla v. The State of Jammu and Kashmir, 2023 SCC Online SC 205 . Respondent?s submission : 6. On the other hand, learned Standing Counsel for the respondent Corporation has submitted that the question involved in this writ petition is the regularisation of his period of suspension and unauthorized absence in service. The Disciplinary Authority has noted the petitioner?s conduct in remaining unauthorizedly absent from duty.?The petitioner was not honourably acquitted, and, in fact, the Management has been gracious and magnanimous enough to exonerate him from the punishment of reduction of two-stage lower in the time scale of pay for three years with cumulative effect. The Disciplinary Authority has noted the petitioner?s conduct in remaining unauthorizedly absent from duty.?The petitioner was not honourably acquitted, and, in fact, the Management has been gracious and magnanimous enough to exonerate him from the punishment of reduction of two-stage lower in the time scale of pay for three years with cumulative effect. When the petitioner remained in jail and, after he was granted bail, did not join the duties and remained unauthorizedly absent, the petitioner is not entitled to get his unauthorized absence in service treated as time spent on duty. The claim for payment of salary for the said period is wholly unjustified. Discussion and Analysis : 7. The question whether a person has been acquitted honourably or he has been acquitted, giving the benefit of the doubt, has come for consideration in several judgments before the Supreme Court. 8. Though the phrase ?honourable acquittal? is not defined anywhere in the Criminal Procedure Code, this has been the consistent view in the judicial pronouncements that the expression ?honourable acquittal? could be when the accused is acquitted after full consideration of the prosecution case and the Prosecution miserably fails to prove the charges levelled against the accused [ Commissioner of Police, New Delhi v. Mehar Singh, 2013 (7) SCC 685 paragraph 25]. 8.1 It is also well-settled that mere acquittal in a criminal case does not entitle an employee to reinstatement in service. The acquittal has to be ?honourable? [ Management of Reserve Bank of India, New Delhi v. Bhopal Singh Panchal, 1994 (1) SCC 541 and R.P. Kapoor v. Union of India, AIR 1964 SC 787 ] 8.2 In Union Territory, Chandigarh Administration v. Pradeep Kumar, (2018) 1 SCC 797 it has been held that if a person is acquitted or discharged in a criminal case, the same cannot be inferred that he was falsely involved or he had no criminal antecedents. Paragraphs 10, 11, 12 and 13 of the said judgment, which have been taken note of in the subsequent?judgment in Imtiyaz Ahmad Malla (supra), are extracted hereunder: ?10. The acquittal in a criminal case is not conclusive of the suitability of the candidates in the concerned post. If a person is acquitted or discharged, it cannot always be inferred that he was falsely involved or he had no criminal antecedents. Unless it is an honourable acquittal, the candidate cannot claim the benefit of the case. The acquittal in a criminal case is not conclusive of the suitability of the candidates in the concerned post. If a person is acquitted or discharged, it cannot always be inferred that he was falsely involved or he had no criminal antecedents. Unless it is an honourable acquittal, the candidate cannot claim the benefit of the case. What is honourable acquittal, was considered by this Court in Deputy Inspector General of Police v. S Samuthiram (2013) 1 SCC 598 , in which this Court held as under:- "24. The meaning of the expression ?honourable acquittal? came up for consideration before this Court in RBI v. Bhopal Singh Panchal (1994) 1 SCC 541 . In that case, this Court has considered the impact of Regulation 46(4) dealing with honourable acquittal by a criminal court on the disciplinary proceedings. In that context, this Court held that the mere acquittal does not entitle an employee to reinstatement in service, the acquittal, it was held, has to be honourable. The expressions ?honourable acquittal?, ?acquitted of blame?, ?fully exonerated? are unknown to the Code of Criminal Procedure or the Penal Code, which are coined by judicial pronouncements. It is difficult to define precisely what is meant by the expression ?honourably acquitted?. When the accused is acquitted after full consideration of prosecution evidence and that the prosecution had miserably failed to prove the charges levelled against the accused, it can possibly be said that the accused was honourably acquitted." 11. Entering into the police service required a candidate to be of good character, integrity and clean antecedents. In Commissioner of Police, New Delhi v. Mehar Singh (2013) 7 SCC 685 , the respondent was acquitted based on the compromise. This Court held that even though acquittal was based on compromise, it is still open to the Screening Committee to examine the suitability of the candidate and take a decision. Emphasizing upon the importance of character and integrity required for joining police force/discipline force, in Mehar Singh case, this Court held as under:- "23. A careful perusal of the policy leads us to conclude that the Screening Committee would be entitled to keep persons involved in grave cases of moral turpitude out of the police force even if they are acquitted or discharged if it feels that the acquittal or discharge is on technical grounds or not honourable. A careful perusal of the policy leads us to conclude that the Screening Committee would be entitled to keep persons involved in grave cases of moral turpitude out of the police force even if they are acquitted or discharged if it feels that the acquittal or discharge is on technical grounds or not honourable. The Screening Committee will be within its rights to cancel the candidature of a candidate if it finds that the acquittal is based on some serious flaw in the conduct of the prosecution case or is the result of material witnesses turning hostile. It is only experienced officers of the Screening Committee who will be able to judge whether the acquitted or discharged candidate is likely to revert to similar activities in future with more strength and vigour, if appointed, to the post in a police force. The Screening Committee will have to consider the nature and extent of such person?s involvement in the crime and his propensity of becoming a cause for worsening the law and order situation rather than maintaining it. In our opinion, this policy framed by the Delhi Police does not merit any interference from this Court as its object appears to be to ensure that only persons with impeccable character enter the police force. 24. We find no substance in the contention that by cancelling the respondents? candidature, the Screening Committee has overreached the judgments of the criminal court. We are aware that the question of co-relation between a criminal case and a departmental enquiry does not directly arise here, but, support can be drawn from the principles laid down by this Court in connection with it because the issue involved is somewhat identical, namely, whether to allow a person with doubtful integrity to work in the department. While the standard of proof in a criminal case is the proof beyond all reasonable doubt, the proof in a departmental proceeding is preponderance of probabilities. Quite often criminal cases end in acquittal because witnesses turn hostile. Such acquittals are not acquittals on merit. An acquittal based on benefit of doubt would not stand on a par with a clean acquittal on merit after a full-fledged trial, where there is no indication of the witnesses being won over. Quite often criminal cases end in acquittal because witnesses turn hostile. Such acquittals are not acquittals on merit. An acquittal based on benefit of doubt would not stand on a par with a clean acquittal on merit after a full-fledged trial, where there is no indication of the witnesses being won over. In R.P. Kapur v. Union of India, AIR 1964 SC 787 this Court has taken a view that departmental proceedings can proceed even though a person is acquitted when the acquittal is other than honourable. 25. The expression ?honourable acquittal? was considered by this Court in S. Samuthiram, (2013) 1 SCC 598 . In that case this Court was concerned with a situation where disciplinary proceedings were initiated against a police officer. Criminal case was pending against him under Section 509 IPC and under Section 4 of the Eve-Teasing Act. He was acquitted in that case because of the non-examination of key witnesses. There was a serious flaw in the conduct of the criminal case. Two material witnesses turned hostile. Referring to the judgment of this Court in RBI v. Bhopal Singh Panchal, (1994) 1 SCC 541 , where in somewhat similar fact situation, this Court upheld a bank?s action of refusing to reinstate an employee in service on the ground that in the criminal case he was acquitted by giving him benefit of doubt and, therefore, it was not an honourable acquittal, this Court held that the High Court was not justified in setting aside the punishment imposed in the departmental proceedings. This Court observed that the expressions ?honourable acquittal?, ?acquitted of blame? and ?fully exonerated? are unknown to the Criminal Procedure Code or the Penal Code. They are coined by judicial pronouncements. It is difficult to define what is meant by the expression ?honourably acquitted?. This Court expressed that when the accused is acquitted after full consideration of the prosecution case and the prosecution miserably fails to prove the charges levelled against the accused, it can possibly be said that the accused was honourably acquitted. ................ 33. So far as respondent Mehar Singh is concerned, his case appears to have been compromised. It was urged that acquittal recorded pursuant to a compromise should not be treated as a disqualification because that will frustrate the purpose of the Legal Services Authorities Act, 1987. We see no merit in this submission. ................ 33. So far as respondent Mehar Singh is concerned, his case appears to have been compromised. It was urged that acquittal recorded pursuant to a compromise should not be treated as a disqualification because that will frustrate the purpose of the Legal Services Authorities Act, 1987. We see no merit in this submission. Compromises or settlements have to be encouraged to bring about peaceful and amiable atmosphere in the society by according a quietus to disputes. They have to be encouraged also to reduce arrears of cases and save the litigants from the agony of pending litigation. But these considerations cannot be brought in here. In order to maintain integrity and high standard of police force, the Screening Committee may decline to take cognizance of a compromise, if it appears to it to be dubious. The Screening Committee cannot be faulted for that. ............... 35. The police force is a disciplined force. It shoulders the great responsibility of maintaining law and order and public order in the society. People repose great faith and confidence in it. It must be worthy of that confidence. A candidate wishing to join the police force must be a person of utmost rectitude. He must have impeccable character and integrity. A person having criminal antecedents will not fit in this category. Even if he is acquitted or discharged in the criminal case, that acquittal or discharge order will have to be examined to see whether he has been completely exonerated in the case because even a possibility of his taking to the life of crimes poses a threat to the discipline of the police force. The Standing Order, therefore, has entrusted the task of taking decisions in these matters to the Screening Committee. The decision of the Screening Committee must be taken as final unless it is mala fide. In recent times, the image of the police force is tarnished. Instances of police personnel behaving in a wayward manner by misusing power are in public domain and are a matter of concern. The reputation of the police force has taken a beating. In such a situation, we would not like to dilute the importance and efficacy of a mechanism like the Screening Committee created by the Delhi Police to ensure that persons who are likely to erode its credibility do not enter the police force. The reputation of the police force has taken a beating. In such a situation, we would not like to dilute the importance and efficacy of a mechanism like the Screening Committee created by the Delhi Police to ensure that persons who are likely to erode its credibility do not enter the police force. At the same time, the Screening Committee must be alive to the importance of the trust reposed in it and must treat all candidates with an even hand." The same principle was reiterated in State of Madhya Pradesh v. Parvez Khan, (2015) 2 SCC 591 . 12. While considering the question of suppression of relevant information or false information in regard to criminal prosecution, arrest or pendency of criminal case(s) against the candidate, in Avtar Singh v. Union of India (2016) 8 SCC 471 , three-Judges Bench of this Court summarized the conclusion in para (38). As per the said decision in para (38.5), "In a case where the employee has made declaration truthfully of a concluded criminal case, the employer still has the right to consider antecedents, and cannot be compelled to appoint the candidate." 13. It is thus well settled that acquittal in a criminal case does not automatically entitle him for appointment to the post. Still it is open to the employer to consider the antecedents and examine whether he is suitable for appointment to the post. From the observations of this Court in Mehar Singh and Parvez Khan cases, it is clear that a candidate to be recruited to the police service must be of impeccable character and integrity. A person having criminal antecedents will not fit in this category. Even if he is acquitted or discharged, it cannot be presumed that he was honourably acquitted/completely exonerated. The decision of the Screening Committee must be taken as final unless it is shown to be mala fide. The Screening Committee also must be alive to the importance of the trust repose in it and must examine the candidate with utmost character.? 8.3 It is also relevant to take note of the legal position that even if an employee is honourably acquitted by a criminal Court, no right is conferred on the employee to claim any benefit, including reinstatement after the trial Court acquits him. 8.3 It is also relevant to take note of the legal position that even if an employee is honourably acquitted by a criminal Court, no right is conferred on the employee to claim any benefit, including reinstatement after the trial Court acquits him. 8.4 The Supreme Court in Deputy Inspector General of Police (supra), in paragraphs 22 and 23 has held as under: ?22. In R.P. Kapoor v. Union of India, AIR 1964 SC 787 , it was held even in the case of acquittal, departmental proceedings may follow where the acquittal is other than honourable. In State of Assam and another v.Raghava Rajgopalachari, 1972 SLR 45, this Court quoted with approval the views expressed by Lord Williams, J. in (1934) 61 ILR Cal.168 which is as follows: ?The expression ?honourably acquitted? is one which is unknown to court of justice. Apparently it is a form of order used in courts martial and other extra judicial tribunals. We said in our judgment that we accepted the explanation given by the appellant believed it to be true and considered that it ought to have been accepted by the Government authorities and by the magistrate. Further, we decided that the appellant had not misappropriated the monies referred to in the charge. It is thus clear that the effect of our judgment was that the appellant was acquitted as fully and completely as it was possible for him to be acquitted. Presumably, this is equivalent to what Government authorities term ?honourably acquitted??. 23. As we have already indicated, in the absence of any provision in the service rule for reinstatement, if an employee is honourably acquitted by a Criminal Court, no right is conferred on the employee to claim any benefit including reinstatement. Reason is that the standard of proof required for holding a person guilty by a criminal court and the enquiry conducted by way of disciplinary proceeding is entirely different. In a criminal case, the onus of establishing the guilt of the accused is on the prosecution and if it fails to establish the guilt beyond reasonable doubt, the accused is assumed to be innocent. It is settled law that the strict burden of proof required to establish guilt in a criminal court is not required in a disciplinary proceedings and preponderance of probabilities is sufficient. It is settled law that the strict burden of proof required to establish guilt in a criminal court is not required in a disciplinary proceedings and preponderance of probabilities is sufficient. There may be cases where a person is acquitted for technical reasons or the prosecution giving up other witnesses since few of the other witnesses turned hostile etc. In the case on hand the prosecution did not take steps to examine many of the crucial witnesses on the ground that the complainant and his wife turned hostile. The court, therefore, acquitted the accused giving the benefit of doubt. We are not prepared to say in the instant case, the respondent was honourably acquitted by the criminal court and even if it is so, he is not entitled to claim reinstatement since the Tamil Nadu Service Rules do not provide so.? 9. I have considered the judgment passed by the Sessions Court. The petitioner was acquitted by the Sessions Court on technical grounds. Conclusion : 10. It cannot be said that the prosecution has failed miserably to prove its case against the petitioner. However, for some technical reasons, the petitioner was acquitted. Therefore, this Court is of the view that the petitioner's acquittal was not the ?honourable acquittal?. Further, the Disciplinary Authority has considered the circumstances and addressed the petitioner?s case for treating him in regular service during the period of suspension and has declined the request for reasons which are justified, reasonable and proper. Result : 11. Therefore, this Court does not find that the views taken by the Disciplinary Authority, the Appellate Authority, and the Reviewing Authority require interference by this Court in the exercise of its jurisdiction under Article 226 of the Constitution of India. Thus, the writ petition fails, which is hereby dismissed. All Interlocutory Applications regarding interim matters stand closed.