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2025 DIGILAW 923 (HP)

Guman Singh v. State of H. P.

2025-05-06

SATYEN VAIDYA

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JUDGMENT : Satyen Vaidya, J. By way of instant petition, petitioner has prayed for following substantive reliefs:- i) That writ of certiorari may kindly be issued, quashing and setting aside the impugned order dated 31.07.2020 (Annexure P-8). ii) That writ of mandamus may kindly be issued, directing the respondents reinstate the petitioner in service as Sweeper-cum Class IV employee with all consequential benefits. 2. The case as set-up by the petitioner is that he was appointed as Part Time Sweeper- cum-Class-IV, on contract basis on the honorarium of Rs.300/- per month by respondent No. 3, vide office order dated 28.07.1999. Petitioner joined his duties on 29.07.1999 in the office of 4th respondent. He was deputed at Primary Health Centre, Gatadhar, Tehsil Sangrah, District Sirmour, H.P. The appointment of petitioner was challenged before the erstwhile H.P. Administrative Tribunal, on the ground that the qualification certificate of the petitioner was not genuine. An inquiry was ordered by respondent No. 2, which led to registration of an FIR in the matter. The petitioner was prosecuted and finally acquitted vide judgment dated 13.09.2019 passed by learned Judicial Magistrate First Class, Shillai, District Sirmour, H.P. 3. The petitioner made a representation to the 2nd respondent with the request to reinstate him in service with all consequential benefits on the grounds firstly that he stood acquitted in the criminal case and secondly his termination was based on a suspicion only. The representation of the petitioner having remained undecided, he preferred CWP No. 1211 of 2020 before this Court, which came to be disposed of vide judgment dated 15.06.2020 with direction to the 2nd respondent to decide the representation of the petitioner by passing a detailed and reasoned order. Petitioner was also granted liberty to file fresh representation, if so advised. 4. In compliance to directions issued by this Court, petitioner submitted a representation dated 25.06.2020 to the 2nd respondent. The representation was not decided within the time specified by this Court. Petitioner submitted a reminder dated 12.08.2020. 5. Thereafter, the 2nd respondent passed the impugned order dated 31.07.2020, Annexure P-8, whereby the claim of the petitioner was rejected. 6. Petitioner has raised challenge on the ground that the 2nd respondent while passing the order dated 31.07.2020 has overstepped his jurisdiction by wrong interpretation of judgment dated 13.09.2019, passed by learned Judicial Magistrate First Class, Shillai. 5. Thereafter, the 2nd respondent passed the impugned order dated 31.07.2020, Annexure P-8, whereby the claim of the petitioner was rejected. 6. Petitioner has raised challenge on the ground that the 2nd respondent while passing the order dated 31.07.2020 has overstepped his jurisdiction by wrong interpretation of judgment dated 13.09.2019, passed by learned Judicial Magistrate First Class, Shillai. It has also been contended that the finding of 2nd respondent with respect to non-submission of the 5th Class certificate by petitioner is wrong in as much as no inquiry has ever been held by the competent authority and the petitioner has not been afforded any chance to defend himself. As per petitioner, respondents being model employer were obligated to act in a fair and transparent manner, but the conditions of the petitioner have been exploited to his disadvantage. Neither any inquiry was held nor any formal order of termination was ever issued. It has also been submitted that there was no requirement of passing 5th standard as a pre- condition for appointment as Part Time Helper/Class IV. 7. Respondents have filed the reply. It has been submitted that the petitioner had initially been engaged as Part Time Sweeper-cum- Class IV by respondent No. 4 in the year 1999 for a period of three months on a fixed honorarium to be paid by the Indian ‘Red Cross Society’, Sirmour. The services of the petitioner were engaged afresh as Peon-cum-Water Carrier under ‘Rogi Kalyan Samiti Scheme’ for 89 days, vide memo dated 25.10.2002 by 3rd respondent purely on contract basis on fixed remuneration. Petitioner had accordingly submitted his joining report on 03.12.2002. The said contractual engagement of petitioner came to be continued by renewal of the contract from time to time till 24.08.2004. 8. As per respondents, the State Government had framed the recruitment scheme for the appointment of Part Time Helper/Class- IV in the year 2006, vide notification dated 14.07.2006. In pursuance to notification of above said scheme, interviews were held for engaging Class-IV/Sweeper on part time basis in the Department of Family Welfare, Government of H.P. Petitioner also appeared in the interview after applying for the post under the scheme. He was selected and was offered the post of Class- IV on part time basis on the fixed terms and conditions vide order dated 22.05.2007. In compliance to aforesaid order, petitioner joined as Part Time Class IV on 28.05.2007. 9. He was selected and was offered the post of Class- IV on part time basis on the fixed terms and conditions vide order dated 22.05.2007. In compliance to aforesaid order, petitioner joined as Part Time Class IV on 28.05.2007. 9. The appointment of petitioner under the scheme was challenged by one Sh. Bahadur Singh by filing O.A. No. 1228 of 2007 before the erstwhile H.P. Administrative Tribunal. The said O.A. was disposed of vide order dated 29.05.2007 with directions to treat the petition as a representation of petitioner and respondent No. 2 was directed to decide the same in a time bound manner. In compliance, the applicant in O.A. No. 1228 of 2007, namely, Sh. Bahadur Singh as well as the petitioner herein were afforded opportunity to explain their position. Petitioner had assured to submit the certificate of his educational qualification through Block Medical Officer. Accordingly, the references were repeatedly sent to BMO, Sangrah, to seek submission of certificate of educational qualification of petitioner. The representation of the petitioner was finally decided by a speaking order dated 31.12.2007. The BMO, Sangrah, was directed to send the qualification certificate to the vigilance department for inquiry and after report it was found that the certificate was fake, the services of the petitioner were ordered to be dispensed with forthwith and criminal proceedings were also directed to be initiated against him. 10. Petitioner had failed to submit his qualification certificate to BMO, Sangrah, who referred the matter to Deputy Director of Primary Education, Sirmour at Nahan, vide letter dated 06.11.2007, to verify the authenticity of the copy of qualification certificate produced by the petitioner at the time of interview. The Deputy Director of Primary Education, Sirmour at Nahan, vide communication dated 01.02.2008 had informed that there was no entry bearing the name of Guman Singh S/o Sh. Kanshi Ram in the school record of Primary School, Panog and instead the entry was of Guman Singh S/o Sh. Amar Singh in school records. Since, from the above intimation, it was proved that the petitioner had managed to get the job by playing fraud, his services were terminated by the BMO, Sangrah, w.e.f. 28.05.2007, vide order dated 08.02.2008. Simultaneously, FIR No. 57/2008, dated 01.09.2008 was also registered against petitioner and another for offences under Sections 420, 467,468, 471 and 120-B of the Indian Penal Code, in Police Station Shillai. Simultaneously, FIR No. 57/2008, dated 01.09.2008 was also registered against petitioner and another for offences under Sections 420, 467,468, 471 and 120-B of the Indian Penal Code, in Police Station Shillai. After completion of investigation, petitioner was prosecuted, in which the petitioner was finally acquitted. It is contended by the respondents that the acquittal of petitioner was not honourable and further his certificate of 5th standard as produced by him at the time of interview had not been held as genuine by the Court of learned Judicial Magistrate First Class, Shillai, therefore, petitioner was not entitled for reinstatement in service or the consequential benefits as claimed by him. 11. I have heard learned counsel for the parties and have also gone through the record of the case carefully. 12. Petitioner has not been able to controvert the fact that his fresh appointment was made in pursuance to a scheme floated by the State vide notification dated 14.07.2006. A copy of his appointment order dated 22.05.2007 has been placed on record as Annexure R-3. As one of the grounds of challenge raised by petitioner it has been submitted that as per the recruitment scheme for appointment of Part Time Helper-cum-Class IV, the requirement of 5th standard certificate was not at all necessary. Thus, the petitioner cannot claim benefit of continuity of service as Part Time Sweeper-cum- Class-IV w.e.f. 1999 as claimed by him. The appointment of petitioner is held to have been made in pursuance to order dated 22.05.2007, Annexure R-3. It was this appointment of the petitioner which was challenged by Bahadur Singh by way of O.A. No. 1228 of 2007, filed before the erstwhile H.P. Administrative Tribunal on 28.05.2007. The O.A. was disposed of on 29.05.2007 with direction to the 2nd respondent to treat the petition of Bahadur Singh as representation and to decide the same in a time bound manner. Till the decision on such representation, status quo as on 29.05.2007 was ordered to be maintained. 13. In compliance to order dated 29.05.2007, passed in O.A. No. 1228 of 2007, order dated 31.12.2007, was passed by Director Health Services i.e. respondent No. 2. The perusal of the said order reveals that no decision was taken on the merits of the case, rather the order was passed in following terms:- “ In view of above, it is decided that the educational certificates of Sh. The perusal of the said order reveals that no decision was taken on the merits of the case, rather the order was passed in following terms:- “ In view of above, it is decided that the educational certificates of Sh. Guman Singh part Time helper PHC-Gatadhar be sent by the block Medical Officer Sangrah and CMO District Sirmour at Nahan to the Vigilance Department/ Enforcement Department at Nahan for enquiry and after report, if it is found that the certificate of qualification are fake the services of respondent No. 5 be dispensed with forthwith and criminal proceeding got started against respondent No. 5 in consultation with the District Attorney, District Sirmour at Nahan and the Vigilance/Enforcement Department. A case for conducting interview again for selection to the post of part time helper also referred for permission to the Director Health Services at the same time . Medical-II Branch is hereby directed to start a process for taking action against the erring BMO, Sangrah and CMO Nahan for not taking any action in the matter till date and for being negligent and having dealt with the subject matter in a negligent and cursory manners, as non-issuance of proceeding/decision in the present OA i.e. the representation may amount to disobedience to the orders of the Hon’ble Tribunal.” 14. Noticeably, vide aforesaid order dated 03.12.2007, the 2nd respondent had directed the certificate submitted by petitioner to be handed over to vigilance department for inquiry and to dispense with the services of the petitioner in case after inquiry it was found that the certificate was fake besides to initiate the criminal action against the petitioner. 15. The services of the petitioner were terminated by respondent No. 5, vide office order dated 08.02.2008, retrospectively, w.e.f. 28.05.2007. In the said office order, there was no reference to the report of an inquiry, if any, conducted by the vigilance department. The order was passed on the basis of the report submitted by the Deputy Director of Primary Education, District Sirmour, whereby it was informed that in the school record of Government Primary School, Panog, the name of petitioner was not found. The fact was presumed to be proved by respondent No. 5 and as a result thereof office order dated 08.02.2008 was issued. 16. The fact was presumed to be proved by respondent No. 5 and as a result thereof office order dated 08.02.2008 was issued. 16. It is not in dispute that the petitioner was prosecuted for offences under Sections 420, 465, 467 and 468, 471 read with Section 120-B of the Indian Penal Code, in the criminal case No. 3/2 of 2019/2010 by learned Judicial Magistrate First Class, Shillai, District Sirmour, H.P. and was acquitted vide judgment dated 13.09.2019. The charge against the petitioner was that he in criminal conspiracy with his co-accused had forged 5th standard certificate allegedly issued by Head Master of Primary School, Panog, to claim qualification upto 5th standard. 17. Learned Judicial Magistrate First Class, Shillai, vide judgment dated 13.09.2019 has held that the prosecution had failed to prove the charge against petitioner beyond reasonable doubts, which resulted in acquittal of the petitioner and other co-accused. 18. According to the respondents, the acquittal of the petitioner cannot be said to be honourable. 19. The question as to what should be termed as honorable acquittal has been considered in a number of judgments rendered by the Hon’ble Supreme Court. The latest exposition on the subject has been made by the Hon’ble Supreme Court in Union of India and others Vs. Methu Meda (2022) 1 SCC 1 . The relevant extract of aforesaid exposition can be gainfully noticed as under: - “10. While addressing the question, as argued the meaning of expression ‘acquittal’ is required to be looked into. The expressions ‘honorable acquittal’, ‘acquitted of blame’ and ‘fully acquitted’ are unknown to the Code of Criminal Procedure or the Penal Code, 1860. It has been developed by judicial pronouncements. In State of Assam & Another vs. Raghava Rajagopalachari, (1972) 7 SLR 44, the effect of the word ‘honorably acquitted’ has been considered in the context of the Assam Fundament Rules (FR) 54 (a) for entitlement of full pay and allowance if the employee is not dismissed. The Court has referred to the judgment of Robert Stuart Wauchope vs. Emperor, (1934) 61 ILR Cal. 168, in the context of expression ‘honourably acquitted’, Lord Williams, J. observed as thus: “The expression “honourably acquitted” is one which is unknown to courts of justice. Apparently, it is a form of order used in courts martial and other extra judicial tribunals. The Court has referred to the judgment of Robert Stuart Wauchope vs. Emperor, (1934) 61 ILR Cal. 168, in the context of expression ‘honourably acquitted’, Lord Williams, J. observed as thus: “The expression “honourably acquitted” is one which is unknown to courts 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”. 11. In R.P. Kapur vs. Union of India AIR 1964 SC 787 , it is observed and held by Wanchoo, J., as thus: (AIR p.792, para 9) “9…. Even in case of acquittal, proceedings may follow where the acquittal is other than honourable.” 12. In view of the above, if the acquittal is directed by the court on consideration of facts and material evidence on record with the finding of false implication or the finding that the guilt had not been proved, accepting the explanation of accused as just, it be treated as honourable acquittal. In other words, if prosecution could not prove the guilt for other reasons and not ‘honourably’ acquitted by the Court, it be treated other than ‘honourable’, and proceedings may follow. 13. The expression ‘honourable acquittal’ has been considered in State vs. S. Samuthiram (2013) 1 SCC 598 after considering the judgments in Reserve Bank of India vs. Bhopal Singh Panchal (1994) 1 SCC 541 and R.P. Kapur (supra), Raghava Rajagopalachari (supra); this Court observed that the standard of proof required for holding a person guilty by a criminal court and enquiry conducted by way of disciplinary proceeding is entirely different. In a criminal case, the onus of establishing guilt of the accused is on the prosecution, until proved beyond reasonable doubt. In a criminal case, the onus of establishing guilt of the accused is on the prosecution, until proved beyond reasonable doubt. In case, the prosecution failed to take steps to examine crucial witnesses or the witnesses turned hostile, such acquittal would fall within the purview of giving benefit of doubt and the accused cannot be treated as honourably acquitted by the criminal court. While, in a case of departmental proceedings, the guilt may be proved on the basis of preponderance of probabilities, it is thus observed that acquittal giving benefit of doubt would not automatically lead to reinstatement of candidate unless the rules provide so. 14. Recently, this Court in State (UT of Chandigarh) vs. Pradeep Kumar, (2018) 1 SCC 797 , relying upon the judgment of S. Samuthiram (supra) said that acquittal in a criminal case is not conclusive of the suitability of the candidates on the post concerned. It is observed, acquittal or discharge of a person cannot always be inferred that he was falsely involved or he had no criminal antecedent. The said issue has further been considered in State vs. Mehar Singh (2013) 7 SCC 685 , holding non-examination of key witnesses leading to acquittal is not honourable acquittal, in fact, it is by giving benefit of doubt. The Court said that nature of acquittal is necessary for core consideration. If acquittal is not honourable, the candidates are not suitable for government service and are to be avoided. The relevant factors and the nature of offence, extent of his involvement, propensity of such person to indulge in similar activities in future, are the relevant aspects for consideration by the Screening Committee, which is competent to decide all these issues.” 20. Noticeably, what has been held by the learned Judicial Magistrate First Class, Shillai, is that the prosecution had failed to prove its case beyond reasonable doubts. It had also been noticed by that court that a number of prosecution witnesses had not supported the case of prosecution, thus, one of the reasons for acquittal was witnesses of prosecution had turned hostile. As a result, keeping in view the above exposition, the acquittal of petitioner cannot be said to be honourable. 21. Even though the acquittal of the petitioner might not be honourable nonetheless he stands acquitted meaning thereby that the criminal charges were not found proved against him. As a result, keeping in view the above exposition, the acquittal of petitioner cannot be said to be honourable. 21. Even though the acquittal of the petitioner might not be honourable nonetheless he stands acquitted meaning thereby that the criminal charges were not found proved against him. That being so, the acquittal of petitioner cannot be justifiably held as a ground to penalise the petitioner by termination of his service. For imposition of such penalty there has to be some proceeding or inquiry under the applicable service rules more particularly when the fake qualification certificate produced by petitioner to procure job has been assigned as reason for his termination. The reason definitely is stigmatic. 22. Noticeably, the respondents have never held any inquiry against petitioner. As noticed above, the BMO Sangrah had terminated the services of the petitioner merely on the basis of a report submitted by Deputy Director of Primary Education, Sirmour. Petitioner, at no stage, was afforded opportunity to defend himself before issuance of the order of termination. 23. The appointment letter of petitioner Annexure R-3 reveal the terms and conditions of his appointment mentioned therein as under: - That the appointment was purely on contract basis for one year renewable on year to year basis subject to performance; - The services were liable to be terminated in case of misconduct or dereliction of duty; - 12 casual leaves allowed in a year; - Unpaid leave could be sanctioned on medical grounds; - Unauthorised absence beyond 15 days would result in automatic termination of service; - Services were temporary in nature and were liable for termination by issuance of one month notice; - The working hours were from 9AM to 11 AM and from 2 PM to 4 PM daily. 24. Even though the appointment of the petitioner was contractual, as per settled proposition of law, he could not be denied the benefit of principles of natural justice especially when he was sought to be terminated from service on the allegations which were stigmatic. 25. The representation of the petitioner after his acquittal has again been decided only on the basis that the acquittal was not honourable. Even if the acquittal was not honourable it could not be considered as proof of the allegation levelled against the petitioner. The facts of the case are clearly evident that the petitioner has been condemned unheard. 26. 25. The representation of the petitioner after his acquittal has again been decided only on the basis that the acquittal was not honourable. Even if the acquittal was not honourable it could not be considered as proof of the allegation levelled against the petitioner. The facts of the case are clearly evident that the petitioner has been condemned unheard. 26. The appointment of petitioner was on contract basis under recruitment scheme floated by the State Government in the year 2006. No reference has been made to any particular provision of the said scheme while terminating the service of petitioner. The conduct of respondents, as has been evident from the facts of the case, does not reveal as to under which set of service rules action has been taken against the petitioner. 27. The 2006 scheme of recruitment adopted by respondents has not seen the light of the day. No such scheme or document evidencing terms thereof has been placed on record of this case. The 2nd respondent has not even made a mention as to the requirement of passing of 5th standard as a qualification for Part Time Class- IV worker. In the reply submitted by respondents to the instant petition also there is no such mention. 28. In light of above discussion, the writ petition is allowed. The impugned order dated 31.07.2020, Annexure P-8, is quashed and set aside. It is held that the petitioner definitely has a right of consideration vis-à-vis his plea for revocation of his termination and re-engagement. The respondents are under obligation to consider the suitability of the petitioner for his continuance as Class-IV, in view of the acquittal of the petitioner of criminal charges vide judgment dated 13.09.2019, passed by learned Juridical Magistrate First Class, Shillai, District Sirmour, H.P. 29. As a result, respondent No.2 is directed to hold an independent inquiry against the petitioner and to conclude the same within a period of three months from the date of production of a copy of this order and thereafter to take decision afresh on the representation of the petitioner. 30. The petition is, accordingly, disposed of in the aforesaid terms, so also the pending miscellaneous application(s) if any.