Delhi High Court - Orders
Jahan Singh vs Tribal Cooperative Marketing ... on 14 July, 2022
Author: Satish Chandra Sharma
Bench: Chief Justice, Subramonium Prasad
$~10.
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ LPA 174/2022
JAHAN SINGH ..... Appellant
Through: Ms. Purnima Maheshwari, Advocate.
versus
TRIBAL COOPERATIVE MARKETING DEVELOPMENT
FEDERATION OF INDIA LTD. (TRIFED) ..... Respondent
Through: Mr. Rajesh Gogna, CGSC with Ms.
Priya Singh, Advocate for respondent.
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE SUBRAMONIUM PRASAD
ORDER
% 14.07.2022
1. The present appeal is arising out of the judgement dated 10.02.2022, passed by the learned Single Judge in W.P.(C.) No. 3361/2021.
2. The facts of the case reveal that the appellant was appointed as an Accounts Clerk by an appointment letter dated 22.10.1990. He was promoted to the post of Account Grade-II in 1992, and further to the post of Accountant Grade-I in 1999. While he was serving as an Accountant Grade- I, a criminal case was registered against him for offence under Sections 7 and Section 15 of the Prevention of Corruption Act, 1988 (PC Act), by the Central Bureau of Investigation (CBI).
Signature Not Verified Digitaaly Signed By:BHUPINDER SINGH ROHELLA Signing Date:22.07.2022 17:45:083. Consequently, he was placed under suspension vide order dated 20.10.2003, with effect from 17.10.2003. The appellant vide judgement dated 22.11.2012, passed by the Special Judge, CBI Courts Delhi, was convicted and was sentenced vide order dated 03.12.2012.
4. Thereafter, a show cause notice dated 26.02.2013 was issued by the respondent based upon his conviction, in exercise of powers conferred under Rule l9 of the CCS(CCA) Rules, 1965 (hereinafter referred to as 'the Rules, 1965'). The appellant responded to the show cause notice. At the same time, an appeal bearing Cr. A No. 106/2013, was also preferred against the judgement convicting the appellant. During the pendency of the appeal, he was dismissed from service vide order dated 19.03.2013.
5. The criminal appeal was finally decided by this Court vide judgement dated 04.05.2020, which resulted in the appellant's acquittal. However, the State/ CBI did not prefer any appeal before the Hon'ble Supreme Court, and till date no appeal has been preferred in the matter. The petitioner/ appellant, immediately after the acquittal, approached the employer requesting reinstatement as well as payment of arrears of salary. A request was also made to grant him the benefit of revised pay scale as per the 6th and 7th Pay Commission. On denial of the same, a writ petition was preferred with the following prayers:
"a) to issue appropriate writ and or directions in the nature of certiorari/ mandamus thereby set aside and quash the Petitioner's dismissal from service Order No.TFD/HONIG/90/03Nol.II/1610/140 dated 19.03.2013 as well as the Memorandum No.TFD/HO/VIG/90/03/ Vol.II/1590/1889 dated 26.02.2013 issued by the Respondents;Signature Not Verified Digitaaly Signed By:BHUPINDER SINGH ROHELLA Signing Date:22.07.2022 17:45:08
b) to issue appropriate writ and or directions in the nature of mandamus thereby direct the Respondents to re-instate/ reemploy the Petitioner with all consequential benefits and forthwith pay the amount due & payable to the Petitioner as per rules;
c) to issue appropriate writ and or directions in the nature of mandamus thereby direct the Respondents to grant and pay with retrospective effect all past & present service continuity benefits, arrears of salary and allowances as per rules calculated on the basis of applicable pay scales w.e.f.
17.10.2003 and as per 6th & 7th Pay commission and promotion status w.e.f 1.01.2006 and 2016, respectively i.e. as Senior Accountant on basic pay Rs.58600/- p.m. (revised basic pay of Rs.66,000/- p.m.) plus DA 17%, HRA 16% and allowances as per Rules of TRIFED, Govt. of India;
d) to issue appropriate writ and or directions in the nature of mandamus thereby direct the Respondents to pay the aforesaid amounts and all dues along with interest @9% p.a. from the date due till the date of payment; "
6. A detailed and exhaustive reply was filed in the matter before the learned Single Judge and the charges which were leveled against the appellant/ petitioner in the criminal trial, were brought to the notice of the learned Single Judge. It was also argued before the learned Single Judge that keeping in view the conduct of the employee, even though he has been acquitted, the acquittal is not an honourable one, and, therefore, the question of reinstatement does not arise.
7. The learned Single Judge dismissed the writ petition. The relevant paragraphs of the order passed by the learned Single Judge read as under:
"20. Having heard the learned counsel for the parties and perused the record, the question which arises for consideration is that, whether in view of the Judgment of this Signature Not Verified Digitaaly Signed By:BHUPINDER SINGH ROHELLA Signing Date:22.07.2022 17:45:08 Court dated May 4, 2020 whereby the conviction of the petitioner for offences under the Act of 1988 has been set aside, the petitioner is entitled to reinstatement. By the order of conviction dated November 22, 2012 and the order of sentencing dated December 13, 2012 passed by the Special Judge, CBI, the petitioner was convicted under Section 7 and Section 15 of the Act of 1988. He was sentenced to undergo rigorous imprisonment for one year under Section 7 of the Act of 1988 and another one year under Section 15 of the Act of 1988, along with a fine of ₹5,000/- each under both the provisions, default whereof would warrant simple imprisonment for one month each.
21. On appeal, this Court has set aside the conviction by holding in paragraphs 42 and 43 as under: -
"42. The prosecution case meets its Waterloo on the above aspect in the contradiction appearing in its case put up in the charge sheet as compared to the evidence recorded in the trial. Whereas in the complaint (Ex.PW13/A), the charge sheet and the sanction order, it was the specific case of the CBI that the whole talk about dividing the amount of Rs.4 lacs in two installments took place on 16.10.2003 and not on 17.10.2003. However, during the trial, as per the complainant's testimony, the entire conversation of splitting of amount in two installments took place on 17.10.2003 and not on 16.10.2003.
43. Further, as per prosecution case, the prime witnesses i.e., the complainant and Dr. Shaukatullah were stated to be present on 16.10.2003 and 17.10.2003 in the hotel room when the appellant is stated to have visited and demanded the bribe amount. A combined reading of their testimonies would show that Dr. Shaukatullah has not stated the material particulars of the conversation as deposed by the complainant. So far as demand made on 16.10.2003 is concerned, he has neither given any details Signature Not Verified Digitaaly Signed By:BHUPINDER SINGH ROHELLA Signing Date:22.07.2022 17:45:08 nor stated any amount. For the demand stated to be made on 17.10.2003 although the complainant had stated that initially Rs.4 lacs were agreed to be paid but later, the amount was agreed to be paid in two equal installments but Dr. Shaukatullah is completely silent on this aspect. He rather stated that the agreed amount was Rs.4.35 lacs. So far as the independent witness namely, Satbir Singh, stated to be hiding in the bathroom, is concerned, he has also not stated the details of conversation as stated by the complainant. Further, he did not witness the conversation but only heard it only through an earphone."
22. It may be stated here that pursuant to his conviction by the Special Judge, CBI, the petitioner who was working with the respondent organisation, was issued a Memorandum, informing that the disciplinary authority has proposed the penalty of dismissal under Rule 19 (i) of the CCS (CCA) Rules, 1965 and calling upon him to reply to the same.
23. On March 13, 2013, the petitioner was dismissed under the said provision. The submission of Ms. Maheshwari is primarily that the petitioner, having been acquitted in the appeal and the CBI not having preferred any appeal thereto before the Supreme Court, is entitled to reinstatement. Mr. Gogna has contended otherwise inasmuch as, the petitioner is not entitled to reinstatement automatically. Moreover, it is his submission that the acquittal granted by this Court was not an honourable acquittal, but merely an acquittal where a benefit of doubt was granted, because the prosecution had failed to prove the charges against the petitioner.
24. The law in this regard is quite well settled. The Supreme Court in its decision in the case of Union Territory, Chandigarh Administration & Ors. v. Pradeep Kumar & Anr., (2018) 1 SCC 797, has held that the mere acquittal in a Signature Not Verified Digitaaly Signed By:BHUPINDER SINGH ROHELLA Signing Date:22.07.2022 17:45:08 criminal case is not conclusive of the suitability of the candidate to the post concerned. If a person is acquitted or discharged, it cannot always be inferred that he was falsely implicated or that he had no criminal antecedents. If it is not an honourable acquittal, the candidate cannot claim the benefit of the case. The Supreme Court, in paragraph 10 has also referred to its earlier decision in the case of Inspector General v. S. Samuthiram, (2013) 1 SCC 598, wherein the expression honourable acquittal was considered. The relevant paragraph is reproduced hereunder: -
"10. The acquittal in a criminal case is not conclusive of the suitability of the candidates in the post concerned. 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 Inspector General of Police v. S. Samuthiram, in which this Court held as under: (SCC p. 609, para 24) "24. The meaning of the expression "honourable acquittal" came up for consideration before this Court in RBI v. Bhopal Singh Panchal . 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 Signature Not Verified Digitaaly Signed By:BHUPINDER SINGH ROHELLA Signing Date:22.07.2022 17:45:08 be said that the accused was honourably acquitted.""
25. Looking from the prism of the law, as has been laid down by the Supreme Court, it is to be seen whether the acquittal of the petitioner by this Court in the criminal appeal bearing CRL. A. No. 106/2013, would create any entitlement on part of the petitioner to be reinstated.
26. The charge against the petitioner as noted above is that he had demanded a bribe. The finding of this Court on the aspect of the demand is in paragraphs 42 to 45 of the Judgment dated May 5, 2020, reproduced hereunder for expediency: -
"42. The prosecution case meets its Waterloo on the above aspect in the contradiction appearing in its case put up in the charge sheet as compared to the evidence recorded in the trial. Whereas in the complaint (Ex.PW13/A), the charge sheet and the sanction order, it was the specific case of the CBI that the whole talk about dividing the amount of Rs.4 lacs in two installments took place on 16.10.2003 and not on 17.10.2003. However, during the trial, as per the complainant's testimony, the entire conversation of splitting of amount in two installments took place on 17.10.2003 and not on 16.10.2003.
43. Further, as per prosecution case, the prime witnesses i.e., the complainant and Dr. Shaukatullah were stated to be present on 16.10.2003 and 17.10.2003 in the hotel room when the appellant is stated to have visited and demanded the bribe amount. A combined reading of their testimonies would show that Dr. Shaukatullah has not stated the material particulars of the conversation as deposed by the complainant. So far as demand made on 16.10.2003 is concerned, he has neither given any details nor stated any amount. For the demand stated to be made on 17.10.2003 although the Signature Not Verified Digitaaly Signed By:BHUPINDER SINGH ROHELLA Signing Date:22.07.2022 17:45:08 complainant had stated that initially Rs.4 lacs were agreed to be paid but later, the amount was agreed to be paid in two equal installments but Dr. Shaukatullah is completely silent on this aspect. He rather stated that the agreed amount was Rs.4.35 lacs. So far as the independent witness namely, Satbir Singh, stated to be hiding in the bathroom, is concerned, he has also not stated the details of conversation as stated by the complainant. Further, he did not witness the conversation but only heard it only through an earphone.
44. In A. Subair v. State of Kerala reported as (2009) 6 SCC 587, it was held that the prosecution in order to prove the charge under the above provisions has to establish by proper proof, the demand and acceptance of the illegal gratification and until that is established, the accused should be considered to be innocent.
45. In the opinion of this Court, the prosecution is duty bound to prove its case beyond reasonable doubt against the appellant by clear, cogent & convincing evidence which has not been done in the present case. In the opinion of this Court, keeping in view the above contradictions in the prosecution case, it is held that the prosecution has failed to prove the demand of Rs.4 lacs by the appellant beyond reasonable doubt and as such the appellant is entitled to the benefit of doubt."
27. A perusal of the above would reveal that the basis for this Court to set aside the conviction was primarily that there were contradictions in the case of the prosecution, due to which it failed to prove the demand of ₹4,00,000/- by the petitioner beyond reasonable doubt, and that as such, he is entitled to the benefit of doubt. The Judgment also indicates that the petitioner had indeed visited the hotel where the complainant and Dr. Shaukatullah were staying, as is clear from the statement of the petitioner himself. The prosecution relied upon the statement of independent witness one Satbir Singh, who was hiding in the bathroom and heard the conversation through an earphone.
Signature Not Verified Digitaaly Signed By:BHUPINDER SINGH ROHELLA Signing Date:22.07.2022 17:45:08The evidence of Satbir Singh was discarded as he did not depose on any other aspect of the conversation as stated by the complainant.
28. At this juncture, I must state, that the nature of the charges levied against petitioner, coupled with the fact that he was merely accorded the benefit of doubt on account of the failure of the prosecution to prove their case beyond reasonable doubt, would cast a shadow of doubt, in the eyes of the employer, insofar as his suitability for re-employment / reinstatement in public service is concerned. In this regard, I may refer to the observations made by the Supreme Court in the case of Krishnakant Raghunath Bibhavnekar v. State of Maharashtra and Ors., 1997 3 SCC 636 as reproduced below:
".........The object of sanction of law behind prosecution is to put an end to crime against the society and laws thereby intends to restore social order and stability. The purpose of the prosecution of a public servant is to maintain discipline in service, integrity, honesty and truthful conduct in performance of public duty or for modulation of his conduct to further the efficiency in public service. The Constitution has given full faith and credit to public acts. Conduct of a public servant has to be an open book; corrupt would be known to everyone. The reputation would gain notoriety. Though legal evidence may be insufficient to bring home the guilt beyond doubt or foolproof. The act of reinstatement sends ripples among the people in the office/locality and sows wrong signals for degeneration of morality, integrity and rightful conduct and efficient performance of public duty. The constitutional animation of public faith and credit given to public acts would be undermined. Every act or the conduct of a public servant should be to effectuate the public purpose and constitutional objective. Public servant renders himself accountable to the public........."Signature Not Verified Digitaaly Signed By:BHUPINDER SINGH ROHELLA Signing Date:22.07.2022 17:45:08
Further, in the case of T.N.C.S. Corpn. Ltd. v. K. Meerabhai, (2006) 2 SCC 255, the Supreme Court in paragraph 35 has held as under:
"35. In the instant case, the charged employee holds a position of trust where honesty and integrity are inbuilt requirements of functioning and, therefore, in our opinion, the matter should be dealt with firmly with firm hands and not leniently. In the instant case, the respondent deals with public money and is engaged in financial transactions or acts in a fiduciary capacity and, therefore, highest degree of integrity and trustworthiness is a must and unexceptionable. Judged in that background, the conclusion of the learned Single Judge as affirmed by the Division Bench of the High Court do not appear to be proper. We have no hesitation to set aside the same and restore the order passed by the disciplinary authorities upholding the order of dismissal."
29. While there are no standards in service jurisprudence as to how integrity, honesty and trustworthiness of an employee can be measured, the meaning of these terms in general parlance has to be taken into accord. No doubt, the prosecution of the petitioner, who was an accountant in public service, has culminated in his acquittal on account of the benefit of doubt, however while seeking reinstatement, such acquittal alone cannot be claimed to be an indubitable testament to the bona fide conduct of the petitioner.
30. The issue can also be seen from another angle, inasmuch as, it is a settled position of law that the nature of evidence required to be seen in criminal proceedings and in disciplinary proceedings is different. In disciplinary proceedings, the charge framed needs to be proved on preponderance of probability, unlike in a criminal case where the offence has to Signature Not Verified Digitaaly Signed By:BHUPINDER SINGH ROHELLA Signing Date:22.07.2022 17:45:08 be proved beyond reasonable doubt. Had disciplinary proceedings been initiated against the petitioner on the charge which was the subject matter of the criminal proceedings on the basis of the evidence that has surfaced, i.e., the fact the petitioner had visited the hotel and that Satbir Singh, the independent witness who was hiding in the bathroom had heard the conversation wherein the petitioner had made a demand of ₹4,00,000/-, the same would have been a sufficient ground for dismissal of the petitioner from service.
31. Given the nature of the offence for which the petitioner was proceeded against, and the conviction having been set aside only on a technical ground that the offence could not be proved by the prosecution beyond reasonable doubt, and the acquittal not being an honourable acquittal, it must be held that the reinstatement of the petitioner cannot flow as a matter of right. This Court is of the view that the petitioner is not entitled to the prayers made in the petition, inter alia, for setting aside the order of dismissal dated March 19, 2013 and reinstating him in service. If such a relief is granted, it would have the effect of turning a blind eye towards the concern of the employer regarding the integrity, honesty and trustworthiness of the employee. Such a concern of the employer cannot be ignored merely because the petitioner was accorded the benefit of doubt in a criminal case, more so, in light of the judgments referred to above.
32. The petition is dismissed. No costs."
8. This Court has carefully perused the aforesaid order passed by the Learned Single Judge, and it is evident that the Learned Single Judge had minutely scanned the order passed in the criminal appeal to conclude that the appellant was acquitted by giving him the benefit of doubt. He has also held that it is not an acquittal. The Learned Single Judge after accepting the Signature Not Verified Digitaaly Signed By:BHUPINDER SINGH ROHELLA Signing Date:22.07.2022 17:45:08 plea of the respondent has dismissed the writ petition.
9. This Court has heard the learned Counsels for both the parties at length, and perused the record of the instant matter.
10. The undisputed facts of the case make it very clear that the judgement of conviction was set aside by this Court, and there is no finding arrived at by this Court in criminal appeal that the acquittal is a technical or honourable in nature. Even otherwise, the relevant statutory provisions as contained under CCS(CCA) Rules, 1965, reads as under:
"Notwithstanding anything contained in rule 14 to rule 18-
(i) where any penalty is imposed on a Government servant on the ground of conduct which has led to his conviction on a criminal charge, or
(ii) where the disciplinary authority is satisfied for reasons to be recorded by it in writing that it is not reasonably practicable to hold an inquiry in the manner provided in these rules, or
(iii)where the President is satisfied that in the interest of the security of the State, it is not expedient to hold any inquiry in the manner provided in these rules, the disciplinary authority may consider the circumstances of the case and make such orders thereon as it deems fit:
Provided that the Government servant may be given an opportunity of making representation on the penalty proposed to be imposed before any order is made in a case under clause
(i):
Provided that the Commission shall be consulted, where such consultation is necessary, and the Government servant has been given an opportunity of representing against the advice of the Commission, within the time limit specified in clause (b) of sub- rule (3) of rule 15, before any orders are made In any case Signature Not Verified Digitaaly Signed By:BHUPINDER SINGH ROHELLA Signing Date:22.07.2022 17:45:08 under this rule. "
11. Rule 19 of the Rules, 1965 provides for dismissal from service without holding an inquiry, in case a Government Servant is convicted, and Rule 19 of the Rules, 1965 does not provide for any distinction between a technical/ honourable, or one on account of benefit of doubt.
12. Rule 19(5) of the Rules, 1965 simply mentions the word 'acquittal'. It is true that Rule 19(5) of the Rules, 1965 empowers the department to hold a departmental enquiry despite an acquittal. However, in the present case, the employer has decided not to hold a departmental enquiry for reasons best known to them, and, therefore, reinstatement of the appellant has become inevitable.
13. Learned counsel for the respondent/ Union of India has vehemently placed reliance upon the judgements delivered in Krishnakant Raghunath Bibhavnekar v. State of Maharashtra and Ors., 1997 3 SCC 636 and T.N. CS. Corpn. Ltd v. K. Meerabhai, (2006) 2 SCC 255.
14. The aforesaid judgements have also been relied upon by the Learned Single Judge in the impugned judgement.
15. The judgements relied upon by learned Single Judge are distinguishable on facts. The present case is not a case where the employee is seeking employement in Government service. It is certainly not a case where an employee has made some incorrect statement in the police verification form. It is certainly not a case where a person who is seeking Government job, was subjected to trial and was later on acquitted.
16. On the contrary, the present case pertains to a Government servant -
Signature Not Verified Digitaaly Signed By:BHUPINDER SINGH ROHELLA Signing Date:22.07.2022 17:45:08who while being in service, was dismissed on account of conviction and later sought reinstatement, on account of his acquittal.
17. Therefore, in the considered opinion of this Court, the judgement delivered by the learned Single Judge deserve to be set aside, and is, accordingly set aside. The respondents are directed to reinstate the appellant in service forthwith.
18. The respondents, after reinstating appellant shall be free to pass appropriate orders keeping in view the fundamental rules in respect of his claim relating to wages for the period during which he was out of service. The exercise of passing a speaking order in respect of the claims of the appellant, relating to back wages be concluded within a period of three months from the date of receiving of certified copy of this order.
19. With the aforesaid terms, this appeal stands disposed of.
SATISH CHANDRA SHARMA, CJ SUBRAMONIUM PRASAD, J JULY 14, 2022/aks Signature Not Verified Digitaaly Signed By:BHUPINDER SINGH ROHELLA Signing Date:22.07.2022 17:45:08