Himachal Pradesh High Court
Dalip Kumar vs State Of Hp & Others on 23 July, 2024
Author: Vivek Singh Thakur
Bench: Vivek Singh Thakur
( 2024:HHC:5930 )
IN THE HIGH COURT OF HIMACHAL PRADESH,
.
SHIMLA
CWPOA No 6725 of 2020
Date of decision: 23rd July, 2024.
Dalip Kumar ...Petitioner
Versus
State of HP & others ...Respondents.
Coram
Hon'ble Mr. Justice Vivek Singh Thakur, Judge.
Hon'ble Mr. Justice Ranjan Sharma, Judge.
Whether approved for reporting? Yes
For the Petitioner: Mr. C.D. Negi, Advocate.
For the Respondent: Mr. Anup Rattan, Advocate General
with Mr.Baldev Negi, Additional
Advocate General.
Vivek Singh Thakur, Judge (Oral)
Petitioner has approached this Court seeking the following main reliefs:-
"(i) That the respondents may very kindly be directed to re-engage the services of the applicant as Mason at the same place where he was working prior to the termination of his services.
(ii) That the respondents may kindly be directed to grant work charged status/regularization to the applicant as Mason w.e.f.
01.01.2008 as per 8 years regularization policy framed by the State ::: Downloaded on - 29/07/2024 21:57:30 :::CIS 2 ( 2024:HHC:5930 ) Government in the year 2000 as well as judgment delivered by the Hon'ble High Court of Himachal Pradesh in CWP No. 2735/2010 titled as Rakesh Kumar versus State of HP decided on 28.07.2010, with all consequential benefits such as arrears of pay, pay fixation .
and seniority etc."
2 Case of petitioner is that he had served as a Mason with the respondent Departmental from the year 2002 to 2011 with minimum 240 days in each calender year. In the year 2011, a case under Sections 376 and 306 IPC was registered against the petitioner and he was arrested and remained in custody for about a period of 8 months. In furtherance to aforesaid FIR, Sessions Trial No. 010007/2012 was instituted against the petitioner on 24 th March, 2012 and vide judgment dated 16th December, 2017 petitioner was acquitted. It is the claim of petitioner that despite approaching the respondents, they did not re-engage him after his enlargement on bail or even after his acquittal vide judgment dated 16th December, 2017, whereas he was entitled for that, especially when no appeal was preferred by State of HP against the acquittal of petitioner.
3 Respondents Department has filed reply to petition stating therein that after arrest of petitioner in the year 2011, he could not attend the work, but after his release on bail he never approached the respondents Department and, therefore, it has been claimed that ::: Downloaded on - 29/07/2024 21:57:30 :::CIS 3 ( 2024:HHC:5930 ) petitioner had abandoned the job after 2011 and even he did not approach the Department immediately after his acquittal for his re-
.
engagement or fresh engagement on dailywage basis and further that he has filed this petition in the year 2019 after a considerable inordinate unexplained delay.
4. Along with reply of State, Mandays Chart has been filed which substantiates the claim that petitioner had served for minimum 180 days, as required in Tribal area, in each calender year from 2002 to 2008 and, thereafter, 170 days in the year 2009 and for 301 and 245.5 days in the years 2010 and 2011 respectively.
5. In rejoinder to reply, petitioner has claimed that he had approached the Department by submitting applications Annexures P-4 and P-5. Application Annexure P-4 is dated 4.6.2012 which is addressed to the Junior Engineer, Moorang Sub Division, District Kinnaur whereas application and Annexure P-5, dated 18.1.2018, is addressed to the Assistant Engineer, Moorang Sub Division, District Kinnaur.
6 In response to claim of petitioner in rejoinder, it was stated by the Department, vide instructions dated 18th June, 2024, that application Annexure P-5 was never submitted by petitioner in the office of respondents and it is addressed to the Assistant Engineer, ::: Downloaded on - 29/07/2024 21:57:30 :::CIS 4 ( 2024:HHC:5930 ) who was and is not competent authority to re-engage the petitioner as Beldar and no such application was ever submitted by petitioner in the .
Office of Executive Engineer/competent Authority.
7 Without going into the merits of rival claim with respect to submission of applications, (Annexures P-4 and P-5), it is apt to record that even if it is presumed that petitioner had approached the respondents in the year 2012 and/or 2018, then also he did not approach the Court till April, 2019.
8. It is also relevant to notice that it is not the case of respondents Department that on account of any departmental enquiry or otherwise any departmental action or for arrest of petitioner in criminal case supra, his services were terminated or dispensed with.
9. In any case, petitioner has approached the Court in April, 2019 by filing present petition seeking his re-engagement in the Department. For adjudicating the claim of petitioner to re-engage him after acquittal in criminal case, it would be relevant to refer the judgment of Division Bench of this Court in CWP No. 191 of 1984 titled Surinder Kumar vs. State of HP decided on 28 th May, 1984 (ILR 1984 HP 243; 1984(2) All India Service Law Journal 347) wherein it has been observed as under:-
"4. Pursuant to the investigations held consequent upon the lodgment of the first information report, two separate ::: Downloaded on - 29/07/2024 21:57:30 :::CIS 5 ( 2024:HHC:5930 ) challans were presented by the prosecuting agency against the petitioner each for an offence punishable under Section 409 IPC. The Chief Judicial Magistrate, Solan, who tried .
those two cases, convicted the petitioner under Section 409 IPC and sentenced him to imprisonment for a term of one year and a fine of Rs.2000/- and, in default, to rigorous imprisonment for six months, in each case. The orders of conviction and sentence were passed on April 11, 1980. The petitioner preferred two separate appeals against the said orders of conviction and sentence. Those appeals were heard by the Sessions Judge, Solan, Sessions Division at Nahan. By two separate judgments and orders, rendered on November 30, 1981, the appeals were accepted and the petitioner was acquitted in both the cases.
................
12. It may be recalled in this connection that as a result of the lodgement of the first information, the petitioner was detained in custody and that after investigation, he was put up for trial in two cases before a criminal court. The trial court convicted him but the appellate court acquitted him in both the cases. The orders of acquittal are indubitably under challenge in the High Court. The preferment of acquittal appeals cannot, however, be regarded as the continuance of the trial. The trials have concluded with the judgment of acquittal (See State vs. B.C. Dwivedi. The initial presumption of innocence must, therefore, be regarded as having been doubly reinforced by orders of acquittal passed in favour of the petitioner. Under such circumstances, the continued operation of the order of suspension as from the date of acquittal cannot be ::: Downloaded on - 29/07/2024 21:57:30 :::CIS 6 ( 2024:HHC:5930 ) regarded as reasonable, fair and just. Merely because the petitioner was, at one point of time, detained in custody for a period exceeding forty-eight hours, he cannot be kept .
under suspension perpetually, especially when the allegations on the basis of which he was detained and which ultimately became the subject matter of two trials before the criminal court, are found by a court of competent jurisdiction to have been not established beyond reasonable doubt. Under the circumstances, in our opinion, on a rational and just view of the facts and circumstances of the case, the Petitioner is required to be re-instated in service on and with effect from the date of the orders of acquittal. If the acquittal appeals are allowed and the Petitioner is convicted, there is nothing to prevent the competent authority from dealing with the Petitioner in accordance with law. If, on the other hand, the acquittal appeals fail and a departmental inquiry, if any, is ordered to be instituted on the same charges, it would not be fair and just and reasonable to suspend the Petitioner once again in view of the initial presumption of innocence having been reinforced twice over.
13. It would be pertinent, in this connection, to refer to the decision in Corporation of Nagpur City vs. Ramachandra 1981(2) SCC 714. In that case, the order of suspension was passed by the Municipal Commissioner on September 23, 1974. The order was confirmed by the Corporation on the same day. The suspension was ordered in connection with a departmental enquiry relating to two accidents which occurred during the construction of a stadium which was being looked after by the delinquents and which resulted in ::: Downloaded on - 29/07/2024 21:57:30 :::CIS 7 ( 2024:HHC:5930 ) the death of seven persons and injuries to eight others. A complaint was also filed before the police as a result of which a chargesheet u/s 304A IPC, was filed against the .
delinquents on September 25, 1976. In view of the charge-
sheet submitted by the police, another order of suspension was passed by the Municipal Commissioner on January 13, 1977 with effect form October 8, 1976. The delinquents filed an unsuccessful appeal to the departmental appellate authority and thereafter moved a writ petition which was allowed and the order of suspension was quashed on the ground that the competent authority to pass the order of suspension was the Corporation itself and not the Chief Executive Officer. On appeal, the Supreme Court held that the Municipal Commissioner was fully competent to suspend the delinquents and that, therefore, the decision rendered in the writ petition was not sustainable. The Supreme Court, however, proceeded to make the following observations:
"The other question that remains is if the Respondents are acquitted in the criminal case whether or not the departmental inquiry pending against the Respondents would have to continue. This is a matter which is to be decided by the department after considering the nature of the findings given by the criminal court....If, however, the authority feels that there is sufficient evidence and good grounds to proceed with the inquiry, it can certainly do so. In case the Respondents are acquitted, we direct that the order of suspension shall be revoked and the Respondents will be reinstated and allowed full salary thereafter even though the authority chooses to proceed with the ::: Downloaded on - 29/07/2024 21:57:30 :::CIS 8 ( 2024:HHC:5930 ) inquiry....If the Respondents are convicted, then the legal consequences under the rules will automatically follow.
(Underlining supplied) .
The direction given in the aforesaid case indicates that, ordinarily, when a delinquent, who has been hauled up before a criminal court for trial on certain charges, is acquitted, the order of suspension should be revoked and the delinquent should be reinstated, even if the authority chooses to proceed depart-mentally against the delinquent. The view which we are herein inclined to take finds support in the observations made and directions given in the aforesaid case by the Supreme Court."
10. It has also been contended on behalf of respondents that in case of honourable acquittal only, petitioner would have been entitled for re-engagement but in present case, petitioner has been acquitted by extending the benefit of doubt to him. Whereas learned counsel for petitioner has referred paras 38 and 39 along with para 46 of judgment of acquittal, wherein it has been observed that there was no other direct evidence for linking the petitioner with the alleged commission of crime and, therefore, prosecution story was doubted and resultantly, in view of principle of criminal jurisprudence, the petitioner was acquitted and thus, the petitioner is entitled for re-
engagement. Paras 38, 39 and 46 read as under:-
"38. If the nature of the conclusion drawn by the expert as mentioned in Ext.PX are taken into to consideration, then same goes to show that the accused had not been opined to be the biological father of the fetus. Thus it goes to show that the scientific ::: Downloaded on - 29/07/2024 21:57:30 :::CIS 9 ( 2024:HHC:5930 ) piece of evidence relied upon by the prosecution had contradicted the dying declaration made by the deceased. In case titled as Rattan Dass Vs. State of Himachal Pradesh reported in 2010 (2) Him.L.C. 1052 H.P., Hon'ble High Court of Himachal Pradesh had .
disbelieved the statement of the prosecutrix on the point of rape and had preferred to place reliance upon DNA report wherein too DNA of the accused had not matched with the DNA of the child which, according to the prosecutrix, was the result of the repeated forcible sexual intercourse done by the accused with her.
39. There as no other direct evidence on the point of rape allegedly committed by the accused with the deceased.
.... .... ...
46. So in view of the nature of discussion made above, the point under consideration cannot be safely answered in the affirmative. It is the cardinal principle of criminal jurisprudence that in case any doubt creeps into the prosecution case, the benefit thereof has to be given to the accused."
11. Learned counsel for petitioner has also referred judgment of a Single Bench dated 22.9.2023, passed in CWPOA No. 3183 of 2019 titled Sanjeev Kumar vs. State of HP, wherein after taking into consideration the pronouncements of the Supreme Court dealing with expressions "honourable acquittal", "acquitted of blame", "fully exonerated", direction has been given to concerned Department to consider Sanjeev Kumar's (petition therein) case/representation for re-instatement. Though learned Additional Advocate General has submitted that LPA has been preferred against the said judgment, however learned counsel for petitioner has placed on record the copy ::: Downloaded on - 29/07/2024 21:57:30 :::CIS 10 ( 2024:HHC:5930 ) of Office Order dated 12.3.2024, whereby aforesaid Sanjeev Kumar Sharma has been re-engaged after re-looking after his representation.
.
12. Judgments referrred by learned Single Judge in CWPOA No. 3183 of 2019 are also relevant to refer in present matter, which read as under:-
"12. Hon'ble Supreme Court in Deputy Inspector General of Police and Another vs. S. Samuthiram, (2013) 1 Supreme Court Cases 598 on the expression "honorable acquittal" has held as under:-
"24. The meaning of the expression 'honourable acquittal' came up for consideration before this Court in Management of Reserve Bank of India, New Delhi vs. Bhopal Singh Panchal (1994) 1 SCC 541. 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 ::: Downloaded on - 29/07/2024 21:57:30 :::CIS 11 ( 2024:HHC:5930 ) be said that the accused was honourably acquitted.
25. In R.P. Kapoor v. Union of India, AIR 1964 SC 787, it was held even in the case of acquittal, departmental .
proceedings may follow where the acquittal is other than honourable. In State of Assam and another v. Raghava Rajgopalachari reported in 1972 SLR 45, this Court quoted with approval the views expressed by Lord Williams, J. in (1934) 61 ILR Cal. 168 which is as follows:
"The expression "honourably acquitted" is one which is unknown to court 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'".
26. As we have already indicated, in the absence of any provision in the service rule for reinstatement, if an employee is honourably acquitted by a Criminal Court, no right is conferred on the employee to claim any benefit including reinstatement. Reason is that the standard of proof required for holding a person guilty by a criminal court and the enquiry conducted ::: Downloaded on - 29/07/2024 21:57:30 :::CIS 12 ( 2024:HHC:5930 ) by way of disciplinary proceeding is entirely different. In a criminal case, the onus of establishing the guilt of the accused is on the prosecution and if it fails to .
establish the guilt beyond reasonable doubt, the accused is assumed to be innocent. It is settled law that the strict burden of proof required to establish guilt in a criminal court is not required in a disciplinary proceedings and preponderance of probabilities is sufficient. There may be cases where a person is acquitted for technical reasons or the prosecution giving up other witnesses since few of the other witnesses turned hostile etc. In the case on hand the prosecution did not take steps to examine many of the crucial witnesses on the ground that the complainant and his wife turned hostile. The court, therefore, acquitted the accused giving the benefit of doubt. We are not prepared to say in the instant case, the respondent was honourably acquitted by the criminal court and even if it is so, he is not entitled to claim reinstatement since the Tamil Nadu Service Rules do not provide so."
13. Hon'ble Supreme Court in Imtiyaz Ahmad Malla vs. The State of Jammu and Kashmir and Others, 2023 Live Law (SC) 150, after referring to its earlier judgments, on the expression "honorable acquittal" went on to hold as under:-
"11. The expression "honourable acquittal" had also come up for consideration in other cases namely, Management of Reserve Bank of India, New Delhi Vs. Bhopal Singh Panchal3 ; and in R.P. Kapur Vs. ::: Downloaded on - 29/07/2024 21:57:30 :::CIS 13 ( 2024:HHC:5930 ) Union of India and Another4 whereby it was held inter alia that the mere acquittal does not entitle an employee to the reinstatement 3 (1994) 1 SCC 541 4 .
AIR 1964 SC 787 5 in service. The acquittal, it was held, has to be honourable. As such, the expressions "honourable acquittal", "acquitted of blame", "fully exonerated" are unknown to the Code of Criminal Procedure or the Penal Code, and it is difficult to define precisely what is meant by expressions "honourable acquittal".
12. In Pradeep Kumar's case (supra) also it was reiterated that if a person is acquitted or discharged, it cannot obviously be inferred that he was falsely involved, or he had no criminal antecedents. The precise observations made therein are 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 [Inspector General of Police v. S. Samuthiram, (2013) 1 SCC 598 : (2013) 1 SCC ( Cri) 566 : (2013) 1 SCC (L&S) 229] , in which this Court held as under: (SCC p. 609, para 24) ::: Downloaded on - 29/07/2024 21:57:30 :::CIS 14 ( 2024:HHC:5930 ) "24. The meaning of the expression "honourable acquittal" came up for consideration before this Court in RBI v. Bhopal Singh Panchal [RBI v. Bhopal .
Singh Panchal, (1994) 1 SCC 541 : 1994 SCC (L&S) 594] . 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 rProcedure 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."
14. Hon'ble Supreme Court in G.M. Tank vs. State of Gujarat & Anr., AIR 2006 Supreme Court 2129 has held as under:-
"31. The departmental proceedings and the criminal case are based on identical and similar set of facts and the charge in a Departmental case against the appellant and the charge before the Criminal Court are one and the same. It is true that the nature of ::: Downloaded on - 29/07/2024 21:57:30 :::CIS 15 ( 2024:HHC:5930 ) 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 his judicial pronouncement with the finding that the charge has not been proved. It is also to be noticed 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.
In our opinion, such facts and evidence in the department as well as criminal proceedings were ::: Downloaded on - 29/07/2024 21:57:30 :::CIS 16 ( 2024:HHC:5930 ) 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 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, the same requires to be taken note of and the decision in Paul Anthony's case (supra) will apply. We, therefore, hold that the appeal filed by the appellant deserves to be allowed."
13. From the discussion in judgment of acquittal of the petitioner, it can be construed that there was no plausible evidence on record against him in the trial and, thus, it can also be construed that his acquittal, though stated to be o the basis of benefit of doubt, was "honourable acquittal" amounting to "acquitted of blame" or "fully exonerated", as discussed in above referred judgments of the Supreme Court.
14. In aforesaid backdrop, in the light of aforesaid judgments including of the Supreme Court as well as judgment passed by Division Bench of this High Court in CWP No. 191 of 1984 titled Surinder Kumar vs. State of HP decided on 28 th May, 1984 (ILR 1984 HP 243; 1984(2) All India Service Law Journal 347), petitioner is ::: Downloaded on - 29/07/2024 21:57:30 :::CIS 17 ( 2024:HHC:5930 ) directed to submit a fresh representation to the Competent Authority on or before 20th August, 2024 and if in case petitioner approaches the .
competent respondent-Authority, the Authority shall decide the said representation on or before 16th September, 2024 taking into consideration the observations made by Division Bench of this Court in CWP No. 191 of 1984 titled Surinder Kumar vs. State of HP decided on 28th May, 1984 (ILR 1984 HP 243; 1984(2) All India Service Law Journal 347) as well as re-engagement of Sanjeev Kumar Sharma, petitioner in CWPOA No. 3183 of 2019. The said decision shall be taken by passing a reasoned and speaking order. In case, the petitioner is re-engaged, he shall be entitled for counting his service w.e.f. April 2019 onwards but with benefit of his previous service from his engagement from the years 2000 till 2011 for consequential service benefits, however petitioner shall not be entited for back-wages from his disengagement/discontinuation till September, 2024.
Petition is allowed and disposed of in aforesaid terms including all pending miscellaneous application(s), if any.
(Vivek Singh Thakur), Judge.
23rd July, 2024. (Ranjan Sharma),
(ms) Judge.
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