Madhya Pradesh High Court
R.C.Dubey vs M.P.State Electricity Board on 1 February, 2013
1
W.P. No.12152/2007 (s)
01.02.2013
Shri S. Ganguly, learned counsel for the petitioner.
Shri Anoop Nair, learned counsel for the
respondents.
Heard.
Being denied the benefit of Second Higher Pay Scale, petitioner a Junior Engineer has filed this petition.
Undisputed facts are that initially, appointed as Junior Engineer (Diploma Training) on 23.4.1981, petitioner was regularized as Junior Engineer w.e.f. 23.10.1983. That, the petitioner was granted the benefit of First Higher Pay Scale by order dated 23.8.1990. This was in consonance with the policy of upgradation introduced by respondents to overcome stagnation in service whereunder two upgradation were permitted on completion of 9/18/25 years of service. However, when the petitioner became entitled for Second Higher Pay Scale the same was not granted because of criminal prosecution launched against the petitioner under Prevention of Corruption Act by Lokayukt, which led to his suspension also. The petitioner was cleared of the criminal prosecution with an acquittal order dated 12.12.2000. Whereafter petitioner was reinstated on 3.1.2001. Petitioner, on reinstatement persuaded the respondent for grant of higher pay scale. Since no heed was paid, petitioner preferred W. P. No.15568/2008 (s) 2 which was disposed of on 8.3.2006 with a direction to respondent to consider his claim. The claim was considered but rejected by order dated 29.6.2006 in the following terms-
"Considering that at present misc. criminal case 1508/2001 is pending in Hon'ble High Court of MP against the judgment dated 12.12.2000 passed by the learned Special Judge Raisen in Sepcial case no.1/2000, the recommendations may be kept under sealed cover. The Selection Committee also approved that the recommendation in respect of Shri R.C.Dubey for grant of 2nd HPS shall be opened only on final decision of the Hon'ble High Court in said appeal and if he is acquitted from the charges levelled against him in the said criminal case."
Contention of the petitioner is that having being acquitted, criminal case cannot be said to be pending merely because an appeal is directed against the acquittal order. It is accordingly, urged that the respondents be directed to open the seal cover and extend the benefit of second higher pay scale to the petitioner.
The respondents on their turn have embedded to the decision that since Appeal has been preferred against acquittal, petitioner is still under cloud and the opening of sealed cover would depend on the outcome of the Appeal.
Question is whether an appeal against an acquittal can be said to be a continuation of criminal case.
Section 2 (i) of the Criminal Procedure Code, 1973 defines expression "judicial proceeding"
"includes any proceeding in the course of which evidence is or may be legally taken on oath." The 3 definition as apparent is not exhaustive. Therefore, before proceeding can be held to be a judicial proceeding, it must be found that in the course of that proceeding evidence is or may be legally taken on oath. If evidence could not be taken legally on oath it would not judicial proceeding. (Please see Sheo Ram v. State (AIR 1964 Allahabad 290). Furthermore,a criminal proceeding is initiated when a criminal law is set at motion against a person on the basis of an information to the police that a person has committed a cognizable offence leading to an investigation into the accusation against the person and filing of report under Section 173 of the Cr. P.C whereupon an accused is tried of an offence registered leading to the conviction or the acquittal, as the case may be. With the acquittal the charges of commission of offence gets washed of. A person so acquitted of the charges stand at par with a person who is not being charged and was not subjected to a criminal proceeding.
The preferment of a criminal revision or an appeal against an acquittal cannot be regarded as a continuance of the trial and cannot be treated to be pendency of judicial proceeding as the initial presumption of innocence gets re-enforced by the orders of acquittal. The contention, therefore, put forth by the respondents that the filing of revision 4 against the judgment dated 12.12.2000 would tantamount to the pendency of judicial proceeding does not reason with the provisions as they stand under law.In the considered opinion of this Court, after acquittal, which lead to an affirmation of the innocence of the accused, an appeal or revision, as the case may be, being not a continuation of trial, will not amount to a pendency of judicial proceedings. In this context regard can be had of judgment of Division Bench of High Court of Himachal Pradesh in Shri Surinder Kumar v. State of Himachal Pradesh and another (1985 (3) SLR 254).
Regarding applicability of circular dated 30.6.1994 reliance whereof, has been placed upon by respondent. The said circular was dwelt upon by Coordinate Bench of this Court in Brij Bahadur Uphadhyay V. State of M.P. & others: W. P. (s) No.2618/2004 decided on 21.9.2012.
It is held therein-
5.Paragraph 5 of the said circular specified the procedure which is to be followed in case of adhoc promotion in such circumstances. There is nothing in this circular which restrict grant of promotion. However, while adopting the said circular vide memo dated 13/09/2004 it is already communicated by the respondents board that except the conditions mentioned in paragraph 5(1) to 5(6) of the said circular rest of the circular is made applicable. Meaning thereby the rest of the scheme prescribed in the said circular has to be applied. The first paragraph of the said circular is relating to repeal of the earlier circular and this is not relevant. Paragraph 2 of the circular deals with the procedure to be followed by the Departmental Promotion committee in cases of such officers who are facing 5 criminal prosecution or departmental inquiry. Paragraph 3 of the said circular deals with the action to be taken when the criminal prosecution is over. It nowhere prescribes that in case an employee is completely exonerated in the departmental inquiry or is acquitted of the courts of law in criminal prosecution could be denied the benefit of any such scheme or promotion for which he has been found fit. Paragraph 4 of the said circular deals with the procedure of reviewing the recommendations of the DPC in every six months where the employee concerned is facing criminal prosecution or departmental inquiry.
6.From the narration of this, it is clear that provisions where the stoppage could have been done of a benefit or adhoac promotion could have been denied as is prescribed in the circular dated 30/06/1994, have not been adopted by the respondents. Merely because an appeal is pending against the judgment of acquittal, there is nothing prescribed that the petitioner would not be entitled to grant of benefit of higher pay scale for which he was found fit long back. Consequently the respondents could not have denied such benefit to the petitioner.
This Court is in complete agreement with the view expressed in Brij Bahadur Uphadyay (supra).
In view whereof, the petition deserves to be and is hereby allowed.
Respondents are directed to extend the benefit of Second Higher Pay Scale from the due date. Let the same be done within 45 days. No costs.
(SANJAY YADAV) JUDGE das & Loretta