Jharkhand High Court
Kameshwer Prasad vs State Of Jharkhand & Ors on 20 November, 2015
Author: Pramath Patnaik
Bench: Pramath Patnaik
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IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(S.) No. 7273 of 2011
with
W.P.(S.) No. 1398 of 2011
.......
Kameshwar Prasad, son of Late Amir Chandra Prasad, resident of
Jhumri Tilaiya, P.O.-Koderma, P.S. Koderma, District-Koderma,
Jharkhand. ... ... Petitioner
(in both the writ petitions)
Versus
1. State of Jharkhand.
2. The Secretary cum Commissioner, Road Construction
Department, Jharkhand, Project Bhavan, P.O.-Dhurwa, P.S.-Dhurwa,
Ranchi.
3. The Chief Engineer-cum-Additional Commissioner-cum-
Special Secretary, Road Construction Department, Jharkhand,
Project Bhawan, P.O.- Dhurwa, P.S.- Dhurwa, District- Ranchi.
4. The Deputy Secretary cum Enquiry Officer, Road Construction
Department, Government of Jharkhand, Project Bhavan, P.O.
Dhurwa, P.S. Dhurwa, District Ranchi.
5. The Superintending Engineer/Works Department Government
of Jharkhand, Project Bhawan, P.O.-Dhurwa, P.S. Dhurwa, Ranchi.
... ... Respondents
(in W.P.(S.) No. 1398 of 2011)
1. State of Jharkhand
2. Under Secretary, Road Construction Department, Jharkhand,
Ranchi.
3. Superintending Engineer, Road Construction Department,
Road Circle, Hazaribagh.
4. Executive Engineer, Road Construction Department, Road
Circle, Hazaribagh. ... ... Respondents
(in W.P.(S.) No. 7273 of 2011)
......
CORAM:HON'BLE MR. JUSTICE PRAMATH PATNAIK
......
For the Petitioner : Mr. Shresth Gautam, Adv.
For the Respondents : Mr. Altaf Husain, JC to G.P. V
.......
CAV on 4th September, 2015 Pronounced on :20/11/2015
In the accompanied writ applications the petitioner has
prayed for issuance of writ of certiorari for quashing the order
dated 03.09.2011 passed by respondent no. 5, the Superintending
Engineer, relating to dismissal from services and further for a
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direction upon the respondents for reinstatement in services with
all consequential benefits.
The said petitioner (in W.P.(S.) No. 1398 of 2011) has, inter-
alia, prayed for issuance of an order in the nature of certiorari for
quashing the order dated 24.04.2010 pertaining to suspension from
services.
Both the writ petitions were heard together and are being
disposed of by the common order.
2. Sans details of the facts as averred in the writ application is
that initially the petitioner was appointed as Accounts Clerk in
Public Works Department, Koderma Division on 11.04.1980.
Thereafter, he continued to work in the said post to the utmost
satisfaction of the respondents authorities. While working as
Accounts Clerk the petitioner received a letter dated 03.08.2001 by
which he was put under suspension for committing irregularities
during his tenure. It is apposite to mention here that a First
Information Report was lodged on 03.09.2001 on the allegation,
inter-alia, that the petitioner was a Bill Clerk in Public Works
Department and was preparing the bill of retired employees and has
defaulcated the amount of Rs.5,35,152/- in different occasion and it
was also alleged that the petitioner has confessed his guilt in
writing that he has withdrawn the amount of Rs. 88,322/- and was
ready to deposit it and the said amount was kept in his own account
in the bank.
The petitioner was served with a show cause along with the
charge sheet and from the same day departmental proceeding was
initiated against him as evident from the letter dated 11.09.2001
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along with charge sheet.
The petitioner replied on 11.12.2001 denying the charges
levelled against him.
The Executive Engineer vide its letter dated 16.02.2000
directed the cashier Kanhaiya Lal as well as the petitioner to
deposit the amount related to the salary and other allowance to the
employees in the Bank of Baroda and in the event the Cashier goes
on leave, the petitioner will deposit the draft in the bank.
Petitioner was given direction to re-prepare the bill of retired
employees as evident from the letter dated 11.3.2000.
3. Being aggrieved by the order of suspension the petitioner
moved before this Court vide W.P.(S.) No. 926 of 2003 and the same
was disposed of vide order dated 07.03.2003 with a direction to the
respondents. The respondent no. 3 passed an order of dismissal
dated 3.12.2003 and then the petitioner filed an appeal before the
Secretary, Public Works Department, Road Division Government of
Jharkhand giving all the details and raised all the points. The
Secretary did not consider the appeal and rejected the same vide
order 30.01.2004 affirming the order dated 03.12.2003.
Being aggrieved, the petitioner preferred W.P.(S) No. 1057 of
2004 challenging the order of the Disciplinary Authority as well as
the Appellate Authority and this Court vide order 16.08.2004 has
been pleased to quash the order of dismissal.
Against the order dated 16.08.2004 the respondent authority
preferred L.P.A. No. 806 of 2004 which was also dismissed with
certain observations.
After the order passed in L.P.A., the petitioner was reinstated
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in services and posted in the district Chatra. Since the petitioner
was not paid salary and after interference of this Court, the
petitioner was paid the salary. After five years of reinstatement, the
petitioner for the same charges was again suspended on 24.04.2010
vide Annexure 29 to the writ application. An order of recovery from
the petitioner amounting to Rs. 13,68,794 was issued by the
Certificate Officer on 29.11.2010 vide Annexure-30 to the writ
application. The petitioner again moved before this Court in W.P.(S.)
No. 1398 of 2011. This Court vide order dated 23.08.2011 directed
the respondents authorities to conclude the enquiry as early as
possible and in pursuance to the order dated 23.08.2011 passed by
this Court, the respondent authorities passed an order dated
03.09.2011dismissing the petitioner from services vide Annexure- 31 to the writ application.
4. Being aggrieved by the order dated 03.09.2011, the petitioner left with no alternative efficacious remedy has invoked the extraordinary jurisdiction of this Court under Art. 226 of the Constitution of India ventilating his grievances.
5. Per Contra, the respondent authorities have filed a counter- affidavit repelling the contentions made in the writ application, inter-alia, stating therein while the petitioner posted as Junior Accounts Clerk at Hazaribagh during the period 28.04.1991 to 16.01.1993, was placed under suspension on charges of having committed irregularities and defalcation, by order dated 03.08.2001. An FIR was also lodged against him and during investigation he confessed to the crime. Subsequently, charge sheet was served and departmental proceeding was commenced against 5 the petitioner. After completion of the inquiry, the petitioner was dismissed from the services vide order dated 03.12.2003 issued by the Engineer-in-Chief-cum-Addl. Commissioner-cum-special Secretary. The dismissal order was set aside by the High Court in W.P.(S) No. 1057 of 2004 dated 16.08.2004. Against the said order dated 16.08.2004, the respondent state preferred an L.P.A. No. 806 of 2004 in which vide order dated 21.12.2006 division bench of this Court clarified the order of Single Bench. Thereafter, a committee was constituted by order dated 14.03.2007 of S.E.R.C.D. Road Circle, Hazaribagh for proceeding with the departmental inquiry against the petitioner. The Executive Engineer, Giridih was appointed as the conducting officer but as he was transferred and the inquiry file was kept by Sri Mohar Ram, Sr. Head Clerk but proceeding could not be started for some reasons. Finally, a committee had to be constituted afresh by an order dated 31.12.2009. The new committee commenced the enquiry and completed the same on 11.03.2010 and the report was sent to the department vide Annexure-B to the counter affidavit.
On the basis of inquiry report, the Deputy Secretary, Road Construction Department, Jharkhand, Ranchi (RCD) issued direction through letter no. 1896 dated 10.04.2010 for placing the petitioner under suspension and for holding departmental enquiry for the charges levelled against the petitioner vide Annexure-C to the counter-affidavit. By order dated 24.04.2010 issued by the Superintending Engineer, the petitioner was placed under suspension which was issued vide letter no. 643 dated 24.04.2010.
Vide letter no. 1630 (En.) dated 19.07.2011 second show cause 6 notice was served to the petitioner to give his reply within two weeks but the petitioner did not reply as evident from the Annexure-E to the counter affidavit. Again vide letter no. 1658 dated 21.07.2011, 1686 (En.) dated 25.07.2011 and 1776(En.) dated 12.08.2011 reminder was given to the petitioner for reply of show cause notice. But the petitioner did not respond as evident from Annexure-F series to the counter affidavit. Further another show cause notice was served to petitioner by letter no. 1821(En.) dated 19.08.2011 to give his reply upto 26.08.2011 vide Annexure-G to the counter affidavit. On 24.08.2011 the petitioner submitted reply of show cause. In which the petitioner has stated that allegation of financial irregularities as well as other defalcation related to road division, Chatra are baseless and quite contrary to facts. The petitioner also prayed to stop the departmental proceeding as the matter was pending before the Hon'ble Court. In the meantime, the petitioner moved before this Hon'ble Court by filing W.P.(S) No. 1358 of 2011 in which by order dated 23.08.2011 a direction was given to the Secretary RCD to supervise the pending enquiry against the petitioner so that it may be completed within a period of 30 days from the date of order.
6. In compliance of the order of the Hon'ble Court, the respondents made their best effort to get cooperation of the petitioner but from the perusal of above letters it is evident that petitioner always avoided the departmental proceedings in above mentioned circumstances having no other alternative on the basis of material on record departmental proceeding was concluded in which the petitioner was found guilty of all the charges leveled 7 against him and, therefore, the order dated 03.09.2011 has been passed which is a detailed, reasoned and speaking order whereby the services of the petitioner has been terminated. So far as the certificate proceeding is concerned it has been submitted petitioner has alternative remedy before the competent Court with the aforesaid submissions prayer has been made for dismissal of the writ application in liminie.
7. Heard, Mr. Shrestha Gautam, learned counsel for the petitioner and Mr. Altaf Husain, J.C. to G.P.V.
8. Learned counsel for the petitioner, by referring to the supplementary affidavit dated 01.04.2014, has strenuously urged that the petitioner has been acquitted in the criminal Case by the learned Chief Judicial Magistrate, Koderma vide order dated 30.03.2012 vide Annexure-31 to the supplementary affidavit.
9. Learned counsel for the petitioner vehemently submitted that the action of the respondents is utter violation of Article 14, 16 and 311(ii) of the Constitution of India as the impugned order is an ex- parte order and without hearing the petitioner. Learned counsel for the petitioner further submitted that the entire departmental proceeding vitiates as the impugned order has been passed without hearing the petitioner and without following the procedures of law. Learned counsel for the petitioner further submitted that the respondent authorities are not justified in passing the order of recovery of the amount which has already been deposited before the initiation of the proceeding. It has been further submitted that it was incumbent upon the respondent authorities to stay the departmental proceeding, which has been initiated basing on the 8 criminal proceeding and charges in both the proceedings are based on the same set of facts which are identical in nature in both the cases. Impugned order dated 3.09.2011 through which the respondents dismissed the petitioner from the services is not justified and against the canons of service jurisprudence.
To buttress his submissions learned counsel for the petitioner has referred to judgment of Apex Court reported in (2010) 13 SCC 427 in Oryx Fisheries Private Limited Vs. Union of India & Ors. and the decision rendered by this Court in CWJC No. 4426 of 2000 order dated 28.11.2013 in Mina Sinha and Ors. Vs. Indian School of Mines, Dhanbad & Ors. Learned counsel for the petitioner has also preferred I.A. No. 102 of 2014 wherein it has been stated that Criminal proceeding was initiated against the petitioner as well as departmental proceeding which are based on the same sets of facts and evidence and the petitioner has been exonerated in the criminal case and in the light of the judgment rendered by Hon'ble Apex Court in Captain M. Paul Anthony & G.M. Tank case the petitioner is to be extended the benefit of acquittal in criminal case. Moreover, the order of dismissal from the service has been passed in gross violation of Principles of Natural Justice.
10. Learned counsel for the respondents has assiduously advanced the arguments that the impugned order has been passed after giving adequate opportunity of hearing to the petitioner.
Moreover, in the instant case the petitioner accepted his guilt and he has deposited one of the defalcation amount of Rs. 88322/- with 12% interest in Government Treasury.
11. Hon'ble Apex Court in the case of Deputy Inspector General of 9 Police and Another Vs. S. Samuthiram reported in (2013) 1 SCC 598 has been held that-
"Acquittal in criminal case held, the same does not entail automatic reinstatement, since different standards of proof are applicable in criminal and departmental proceedings. Proof beyond reasonable doubt in criminal proceedings and preponderance of probabilities in departmental proceedings, are the respective standards. Acquittal may be outcome of higher level proof which prosecution could not meet yet an employee may be found guilty in departmental proceedings on account of relatively lower standard of proof. It would also depend on whether it is a technical acquittal of honourable acquittal. Reinstatement cannot therefore be claimed unless there is specific provision to this effect in relevant service rules in cases of honourable acquittal. However, this was also not the case in present case, since it was a mere technical acquittal. in case of honorable acquittal. In other words, the issue whether an employee has to be reinstated in service or not depends upon the question whether the service rules contain any such provision for reinstatement and not as a matter of right."
12. After perusal of the records and on hearing of the counsels of the parties at length.
13. The submissions of the counsel for the petitioner for reinstatement of services in pursuance to acquittal in a criminal case cannot be automatic. The expression of honourable acquittal has been liberally dealt by the Hon'ble Apex Court in the case of Inspector General of Police V. S. Samuthiram reported in (2013) 1 SCC 598 has been pleased to discuss the expression of honourable acquittal in paragraph 24 of the said judgment which reads as under:
"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 10 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." (Emphasis laid by this Court) After examining the principles laid down in the above said case, the same was reiterated by in the case of Joginder Singh v. Union Territory of Chandigarh & Ors.
And Further, in Capt. M. Paul Anthony v. Bharat Gold Mines Ltd. & Anr. the Hon'ble Apex Court has held as under (1999)3SCC679 :-
"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 there from'. 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. 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.
35. Since the facts and the evidence in both the proceedings, namely, the departmental proceedings and the criminal case were the same without there being any iota of difference, the distinction, which is usually drawn as between the departmental proceedings and the criminal case on the basis of approach and burden of proof, would not be applicable to the instant case."
24. Further, in the case of G.M. Tank v. State of 11 Gujarat and Ors. reported in SCC(2006) 5 SCC 446 Hon'ble Apex Court has been pleased to observe in paras 20, 30-31 as under
"20..........Likewise, the criminal proceedings were initiated against the appellant for the alleged charges punishable under the provisions of the PC Act on the same set of facts and evidence. It was submitted that the departmental proceedings and the criminal case are based on identical and similar (verbatim) set of facts and evidence. The appellant has been honourably acquitted by the competent court on the same set of facts, evidence and witness and, therefore, the dismissal order based on the same set of facts and evidence on the departmental side is liable to be set aside in the interest of justice.
30. The judgments relied on by the learned counsel appearing for the respondents are distinguishable on facts and on law.........It is true that the nature of charge in the departmental proceedings and in the criminal case is grave. The nature of the case launched against the appellant on the basis of evidence and material collected against him during enquiry and investigation and as reflected in the charge-sheet, factors mentioned are one and the same. In other words, charges, evidence, witnesses and circumstances are one and the same. In the present case, criminal and departmental proceedings have already noticed or granted on the same set of facts, namely, raid conducted at the appellant's residence, recovery of articles therefrom. The Investigating Officer Mr V.B. Raval and other departmental witnesses were the only witnesses examined by the enquiry officer who by relying upon their statement came to the conclusion that the charges were established against the appellant. The same witnesses were examined in the criminal case and the criminal court on the examination came to the conclusion that the prosecution has not proved the guilt alleged against the appellant beyond any reasonable doubt and acquitted the appellant by its judicial pronouncement with the finding that the charge has not been proved. It is also to be noticed that the judicial pronouncement was made after a regular trial and on hot contest. Under these circumstances, it would be unjust and unfair and rather oppressive to allow the findings recorded in the departmental proceedings to stand.
31. In our opinion, such facts and evidence in the departmental as well as criminal proceedings were the same without there being any iota of difference, the appellant should succeed. The distinction which is usually proved between the departmental and criminal proceedings on the basis of the approach and burden of proof would not be applicable in the instant case. Though the finding recorded in the domestic enquiry was found to be valid by the courts below, when there was an honourable acquittal of the employee during the pendency of the proceedings challenging the dismissal, 12 the same requires to be taken note of and the decision in Paul Anthony case will apply. We, therefore, hold that the appeal filed by the appellant deserves to be allowed."
(emphasis supplied) Hon'ble Apex Court in the aforesaid case by referring various decisions including the aforesaid decisions has been pleased to set aside the order of dismissal with compulsory retirement and payment for pensionary benefits.
14. On cumulative facts, reasons and judicial pronouncements, punishment of dismissal order dated 03.09.2011 is hereby quashed and the matter is remitted to the disciplinary authority to consider afresh on the quantum of punishment and pass appropriate order within a reasonable period preferably within a period of three months from the date of receipt/production of copy of this order.
12. With the aforesaid directions the writ petition is disposed of.
(Pramath Patnaik, J.) The Jharkhand High Court, Ranchi Dated: / 11/ 2015 MM /AFR/NAFR