Jharkhand High Court
Ajay Kr. Nand @ Jai Prakash vs State Of Bihar & Ors on 19 November, 2011
Author: P.P. Bhatt
Bench: P.P. Bhatt
CWJC No. 5762 of 2000P
In the matter of an application under Article 226 of the Constitution of India
Ajay Kumar Nand @ Jai Prakash Mandal ... Petitioner
Versus
State of Bihar(now Jharkhand)and Ors. ... ... Respondents
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For the Petitioner : M/s Sohail Anwar, Afaque Ahmad, Altaf Hussain.
For the Respondent(s) : Mr. Binoda Nand Tiwary, JC. To G.P.-II
PRESENT:
THE HON'BLE MR JUSTICE P.P. BHATT.
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By Court: Heard the learned counsel for the parties and perused the
records.
2. The present petition has been filed under Article 226 of the Constitution of India with a prayer for issuance of appropriate writ/order/direction to quash the order of dismissal of the petitioner dated 27.5.2000 contained in Memo No. 167 passed by the Dy. Commissioner, Pakur (Respondent No. 2) on the basis of report of the S.D.O., Pakuria. It has also been prayed for a direction upon the respondents to pay full salary form the year 1994 till date and other consequential benefits.
3. Learned counsel for the petitioner submitted that a short question of law is involved in this matter as to whether the departmental enquiry proceeding can stand on the basis of same charges where the criminal court has acquitted the delinquent for the same charges. The learned counsel for the petitioner has referred Annexure-1 i.e. order of dismissal dated 27.5.2000 (Annexure-1) with a view to show the charges levelled against the petitioner in a departmental inquiry. Likewise, the learned counsel for the petitioner also referred Annexure-4, which is a criminal complaint, filed against the petitioner to indicate the charges levelled therein. The learned counsel for the petitioner has also invited attention to this Court that the petitioner has been acquitted by order dated 29.8.1996 (Annexure-5) in a criminal case being G.R. No. 89 of 1994. Learned counsel for the petitioner has also invited attention of this Court that being aggrieved and dissatisfied by the order of acquittal passed by the criminal court, the then State of Bihar preferred an appeal being a Govt. Appeal No. 01/97 before the High Court, Ranchi Bench and the said appeal was dismissed by the High Court vide order dated 9.2.1998(Annexure-6). However, the disciplinary authority has not considered the factum of acquittal by the criminal court having charges similar to departmental proceeding as also dismissal of appeal preferred by the State against acquittal by the High Court, meaning thereby acquittal is confirm by the High Court. The learned counsel for the petitioner referred to Para- 5 of Annexure-9 i.e. written explanation and invited attention of this Court and submitted by the petitioner in response to show cause notice in the departmental proceeding with a view to show that fact of acquittal in a criminal case having similar charges and dismissed of appeal preferred by the State was very much brought to the notice of the disciplinary authority. It is submitted that there is no whisper about the said fact in the order of dismissal of the petitioner passed by the disciplinary authority. Learned counsel for the petitioner submitted that the order passed by the disciplinary authority is in clear contravention of principle of natural justice and, therefore, on this count, the order of dismissal of the petitioner passed by the disciplinary authority is required to be set aside. In support of his submission, the learned counsel for the petitioner has also referred and relied upon the judgment reported in 2009(2) JCR 269 ( Rafique Mian Vs. Central Coalfields Ltd. and Ors.).
4. Learned counsel for the State, while opposing this writ application, has referred and relied upon the averments made in the counter affidavit, filed by respondent No. 2, and submitted that the order passed by the disciplinary authority is legal and valid and has been passed after considering the seriousness of the charges levelled against the delinquent-petitioner. It is further submitted that the order of acquittal passed in a criminal case has no bearing on the departmental proceeding, rather, the court dealing with criminal case has been pleased to acquit the petitioner for lack of evidence. It is further stated that unless and until the charges/offence against the wrong doer is proved beyond all reasonable doubts and the criminal court cannot given any punishment of imprisonment or fine and therefore, the departmental proceeding and the criminal proceeding are different and distinct and therefore, it can not be said that the order passed by the disciplinary authority is not legal and valid and it can not be said that the disciplinary authority has no power to pass any order when the criminal court has acquitted the delinquent for same and similar charges.
5. Considering the aforesaid submissions and on perusal of the materials available on record, it appears that the short question is involved in this writ petition, whether punishment of dismissal can be awarded in a Departmental proceeding even after order of acquittal in a criminal case by the court having the similar charges? As per the judgment given in a case of Rafique Mian Vs. Central Coalfields Ltd. and Ors.(Supra), the departmental proceedings cannot stand any further when the order of acquittal is passed in a criminal case by the court having similar charges. .
6. From perusal of the order passed by the disciplinary authority dated 27.5.2000, it appears that dispite specifically mentioned by the delinquent-petitioner about the factum of his acquittal-order passed by the court and the said order has been affirmed by the High Court in a Govt Appeal, preferred by the State against acquittal, the disciplinary authority did not consider the said vital issue.
7. Having regards to the facts and circumstances of the present case more particularly, on perusal of the charges levelled against the delinquent-petitioner in the departmental proceeding vis-a-vis charges levelled against him in criminal case, it appears that they are similar. It also appears that the State preferred an appeal against acquittal before the High Court and the High Court who pleased to dismissed the said appeal as there was no merit in the appeal. Thus once the acquittal order passed by the court is confirmed by the High Court, there is no meaning to proceed further in the departmental proceeding for the similar charges. Therefore, considering the judgment given by this Court in a case of Rafique Mian Vs. Central Coalfields Ltd. and Ors. Reported in 2009(2) JCR 269, this petition deserves to be allowed and the order passed by the disciplinary authority dated 27.5.2000 is required to be quashed and set aside. Accordingly, the order dated 27.5.2000 passed by the disciplinary authority is ordered to be set aside.
8. So far as payment of arrears of salary is concerned, considering the principles of no work no pay, there is no question for making payment of full salary to the petitioner. However, looking to the peculiar facts and circumstances of this case, the petitioner is entitled to get 40% of his arrears of salary. The respondents authority shall pay the arrears of pay accordingly within three months from the date of this order. Accordingly, this writ petition is allowed.
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(P.P. Bhatt, J.) Jharkhand High Court, Ranchi Dated: 19.11.2011 Anu/NAFR