Jharkhand High Court
Shankar Singh vs Chief Secretory on 30 October, 2013
1.
W. P. (S). No. 2853 of 2013
[In the matter of an application under Article 226 of the Constitution of India]
...........
Shankar Singh ... Petitioner
Versus
1. The State of Jharkhand through
Chief Secretary, Ranchi
2. The Commandant, Jharkhand
Armed Police8, Lesliganj, Palamau
3. The Director General of Police, Jharkhand
Armed Police1, Doranda, Ranchi
... Respondents
............
For the Petitioner : Mr. Mahesh Tewari, Advocate
For Respondents : Mr. Deepak K. Prasad, J.C. to G.P. III
............
P R E S E N T
HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR
.............
By Court The petitioner has approached this Court challenging the
penalty order dated 27.04.2011 and the appellate order dated
21.02.2013.
2. The brief facts of the case are that, the petitioner was appointed as a Constable on 27.11.2004 and he proceeded for 20 days' leave on 26.09.2008. The petitioner was to report for duty on 16.10.2008 however, he could not resume his duties due to family dispute and he was involved in a criminal case registered on 09.11.2008. In the meantime, the petitioner was suspended by order dated 15.05.2009. A chargememo dated 13.08.2009 was issued to the petitioner on the allegation that he remained absent for 286 days unauthorizedly. The petitioner submitted his reply to 2. the showcause notice however, it was not found satisfactory and therefore, an enquiry was initiated in which, the charge against the petitioner was held to be proved. The petitioner was issued a second showcause notice however, a copy of the enquiry report was not furnished to the petitioner. The petitioner was dismissed from service by order dated 27.04.2011 and thereafter, he preferred an appeal against the order of dismissal. In the meantime, the petitioner was acquitted by the trial court by order dated 05.04.2012 however, this fact was not considered by the appellate authority and his appeal was dismissed by order dated 21.02.2013. Therefore, the petitioner has approached this Court by filing the present writ petition.
3. Heard counsel for both the parties and perused the documents on record.
4. The learned counsel appearing for the petitioner has submitted that since in the chargememo itself, it has been recorded that the petitioner got involved himself in a criminal case and he remained in a judicial custody, the charge of unauthorized absence of 286 days was improper. He has further submitted that since the petitioner was involved in a false criminal case in which, he has been acquitted by the trial court by order dated 05.04.2012, this fact was relevant for deciding the appeal of the petitioner however, the appellate authority has ignored this aspect of the matter and dismissed the appeal of the petitioner by order dated 21.02.2013, 3. which does not disclose any application of mind by the appellate authority. He has relied on decision of the Hon'ble Supreme Court in "Capt. M. Paul Anthony Vs. Bharat Gold Mines Ltd. and another", reported in (1999) 3 SCC 679, which has been followed by the Hon'ble Supreme Court in subsequent cases and which still holds the field.
5. Learned counsel appearing for the respondents has submitted that since the charge framed against the petitioner is of unauthorized absence, acquittal of the petitioner in the criminal case was not relevant for deciding the appeal of the petitioner. It is well settled by a catena of judgments of the Hon'ble Supreme Court that the departmental proceeding and the criminal proceeding can continue simultaneously and acquittal in the criminal case may not be relevant in the departmental proceeding and merely because a delinquent has been acquitted from the criminal charge, that may not be a ground for interfering with the penalty order passed in a properly constituted domestic enquiry. He relies on the decision in "Divisional Controller, G.S.R.T.C. Vs. Kadarbhai J. Suthar", reported in (2007) 2 JLJR 196 (SC).
6. Now adverting to the facts of the case, I find that it is not the case of the department that the petitioner absconded from duty from 26.09.2008. Initially, the petitioner was granted 20 days' leave and he proceeded on leave on 26.09.2008. He was to report for duty on 16.10.2008 however, it appears that a dispute arose 4. between the parties and subsequently, a criminal case was lodged against the petitioner in which the petitioner was arrested on 10.11.2008 and therefore, it cannot be said that the petitioner absented himself from duty deliberately. The petitioner was prevented from joining his duty for the reasons beyond his control and this has not been considered by the departmental authorities though, it has been specifically mentioned in the ChargeMemo that a criminal case was registered against the petitioner. Further, a finding has to be recorded by the departmental authorities that the misconduct was of the gravest nature.
7. In "Krushnakant B. Parmar Vs. Union of India and another", reported in (2012) 3 SCC 178, the Hon'ble Supreme Court has held as under :
18. "In a departmental proceeding, if allegation of unauthorised absence from duty is made, the disciplinary authority is required to prove that the absence is wilful, in the absence of such finding, the absence will not amount to misconduct.
19. In the present case the inquiry officer on appreciation of evidence though held that the appellant was unauthorisedly absent from duty but failed to hold that the absence was wilful; the disciplinary authority as also the appellate authority, failed to appreciate the same and wrongly held the appellant guilty.
20. The question relating to jurisdiction of the court in judicial review in a departmental proceeding fell for consideration before this Court in M.V. Bijlani v.
Union of India wherein this Court held: (SCC p. 95, para 25) "25. It is true that the jurisdiction of the court in judicial review is limited. Disciplinary 5. proceedings, however, being quasicriminal in nature, there should be some evidence to prove the charge. Although the charges in a departmental proceeding are not required to be proved like a criminal trial i.e. beyond all reasonable doubt, we cannot lose sight of the fact that the enquiry officer performs a quasi judicial function, who upon analysing the documents must arrive at a conclusion that there had been a preponderance of probability to prove the charges on the basis of materials on record. While doing so, he cannot take into consideration any irrelevant fact. He cannot refuse to consider the relevant facts. He cannot shift the burden of proof. He cannot reject the relevant testimony of the witnesses only on the basis of surmises and conjectures. He cannot enquire into the allegations with which the delinquent officer had not been charged with."
21. In the present case, the disciplinary authority failed to prove that the absence from duty was wilful, no such finding has been given by the inquiry officer or the appellate authority. Though the appellant had taken a specific defence that he was prevented from attending duty by Shri P. Venkateswarlu, DCIO, Palanpur who prevented him to sign the attendance register and also brought on record 11 defence exhibits in support of his defence that he was prevented to sign the attendance register, this includes his letter dated 3101995 addressed to Shri K.P. Jain, JD, SIB, Ahmedabad, receipts from STD/PCO office of telephone calls dated 2991995, etc. but such defence and evidence were ignored and on the basis of irrelevant fact and surmises the inquiry officer held the appellant guilty."
8. From the aforesaid, it is thus clear that without considering the reason for absence, an order was passed dismissing the petitioner from service and even though, the petitioner was acquitted in the criminal case by order dated 05.04.2012, the appellate authority has not considered this aspect of the matter. The impugned orders dated 27.04.2011 and 21.02.2013 are liable 6. to be quashed and are hereby quashed.
9. When a criminal proceeding is initiated at the instance of the employer, after acquittal in the criminal case the delinquent employee would be entitled for reinstatement in service from the date of dismissal. However, if the criminal case has been instituted at the instance of the third party, the delinquent employee would be reinstated in service from the date of acquittal in the criminal case.
10. In "Ranchhodji Chaturji Thakore Vs. Superintendent Engineer, Gujrat Electricity Board, Himmatnagar (Gujrat) and Another", reported in (1996) 11 SCC 603, the Hon'ble Supreme Court has held as under :
3. "The reinstatement of the petitioner into the service has already been ordered by the High Court.
The only question is whether he is entitled to back wages. It was his conduct of involving himself in the crime that was taken into account for his not being in service of the respondent. Consequent upon his acquittal, he is entitled to reinstatement for the reason that his service was terminated on the basis of the conviction by operation of proviso to the statutory rules applicable to the situation. The question of back wages would be considered only if the respondents have taken action by way of disciplinary proceedings and the action was found to be unsustainable in law and he was unlawfully prevented from discharging the duties. In that context, his conduct becomes relevant. Each case requires to be considered in its own backdrop. In this case, since the petitioner had involved himself in a crime, though he was later acquitted, he had disabled himself from rendering the service on account of conviction and incarceration in jail. Under these circumstances, the petitioner is not entitled to payment of back wages. The learned Single Judge and the Division Bench have not committed any error of law warranting interference."
7.
11. In "Union of India and Others Vs. Jaipal Singh", reported in (2004) 1 SCC 121, the Hon'ble Supreme Court has held as under :
4. "............... On going through the same, we are in respectful agreement with the view taken in Ranchhodji. If prosecution, which ultimately resulted in acquittal of the person concerned was at the behest of or by the department itself, perhaps different considerations may arise. On the other hand, if as a citizen the employee or a public servant got involved in a criminal case and if after initial conviction by the trial court, he gets acquittal on appeal subsequently, the department cannot in any manner be found fault with for having kept him out of service, since the law obliges a person convicted of an offence to be so kept out and not to be retained in service. Consequently, the reasons given in the decision relied upon, for the appellants are not only convincing but are in consonance with reasonableness as well.
Though exception taken to that part of the order directing reinstatement cannot be sustained and the respondent has to be reinstated in service, for the reason that the earlier discharge was on account of those criminal proceedings and conviction only, the appellants are well within their rights to deny back wages to the respondent for the period he was not in service. The appellants cannot be made liable to pay for the period for which they could not avail of the services of the respondent. The High Court, in our view, committed a grave error, in allowing back wages also, without adverting to all such relevant aspects and considerations. Consequently, the order of the High Court insofar as it directed payment of back wages is liable to be and is hereby set aside.
5. The respondent will be entitled to back wages from the date of acquittal and except for the purpose of denying the respondent actual payment of back wages, that period also will be counted as period of service, without any break. The reinstatement, if not already done, in terms of the order of the High Court will be done within thirty days from today."
12. Since, the ChargeMemo itself records that the petitioner got himself involved in the criminal case and he remained in judicial 8. custody, the charge against the petitioner was framed after the registration of the criminal case in which, the petitioner has now been acquitted and thus, I am of the view that the petitioner is entitled for reinstatement in service from the date of order of acquittal from the trial court.
12. This writ petition is allowed in the aforesaid terms.
(Shree Chandrashekhar, J.) JHARKHAND HIGH COURT, RANCHI Dated :- 30th October, 2013 R.K. / A.F.R.