Gujarat High Court
Bhalchandra Lakshmishankar Dave vs State Of Gujarat & on 24 August, 2016
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
C/SCA/15902/2015 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 15902 of 2015
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE J.B.PARDIWALA
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of
the judgment ?
4 Whether this case involves a substantial question of
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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BHALCHANDRA LAKSHMISHANKAR DAVE....Petitioner(s)
Versus
STATE OF GUJARAT & 1....Respondent(s)
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Appearance:
MR C S MOHANAN, ADVOCATE for the Petitioner(s) No. 1
MR UTKARSH SHARMA, AGP for the Respondent(s) No. 1
NOTICE SERVED BY DS for the Respondent(s) No. 2
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 24/08/2016
CAV JUDGMENT
By this writ-application under Article 226 of the Constitution of India, the writ applicant, a former Government Page 1 of 54 HC-NIC Page 1 of 54 Created On Sat Aug 27 06:23:17 IST 2016 C/SCA/15902/2015 CAV JUDGMENT servant, has prayed for the following reliefs :
"(A) This Hon'ble Court may be pleased to issue a writ of mandamus or any other appropriate writ, order or direction in the nature of mandamus, quashing and setting aside the order of dismissal dated 14.3.2005 at Annexure-P, holding that the said order of dismissal was void ab initio and that the petitioner was entitled to continue in service till he attained the age of superannuation;
(B) This Hon'ble Court may be pleased to hold and declare that the petitioner is entitled to all the benefits of reinstatement in service till the date he was due to retire on 28.2.012, and be pleased to further direct the respondents to grant him the benefits flowing from the judgments of this Hon'ble Court in Special Civil Application No.1629/1989 and 3938/1992;
(C) This Hon'ble Court may be pleased to direct the respondents to pay the arrears of salary of the petitioner from the date of his dismissal from service till 28.2.2012 and also to pay pension and gratuity and other benefits due to him as if he had continued in service till 28.2.2012;
(D) Pending hearing and final disposal of this petition, this Hon'ble Court may be pleased to direct the respondents to pay provisional pension to the petitioner on the basis of the last salary drawn by the petitioner;
(E) This Hon'ble Court may be pleased to allow this petition with costs."
The case of the writ-applicant may be summarised as under :
The writ-applicant was selected in the year 1980 by the Gujarat Public Service Commission for the appointment to Class-II post in the Labour and Employment Department. He Page 2 of 54 HC-NIC Page 2 of 54 Created On Sat Aug 27 06:23:17 IST 2016 C/SCA/15902/2015 CAV JUDGMENT joined as the Principal (Class-II) in the Government ITI, Saraspur, Ahmedabad, on 20th August 1982 under the Directorate of Employment and Training. On completion of the probation period of two years on 19th August 1984, he was appointed on the long term basis. While he was working as the Assistant Director (Training) and Incharge Principal (Class-I) in the Industrial Training Institute, Ankleshwar, an FIR was registered against him in the Bharuch ACB Police Station vide CR No.I-4/2000 for the offence punishable under Sections 7, 13(1)(d) read with 13(2) of the Prevention of Corruption Act. The filing of the charge-sheet culminated in the Special ACB Case No.14 of 2000. It was alleged that the writ-applicant had demanded a sum of Rs.5,000=00 from one Kalpesh Jashvantbhai Rana by way of illegal gratification and the said amount was accepted by him on 24th April 2000 in his chamber situated within the premises of the Government ITI, Ankleshwar. According to the case of the prosecution, the original first informant was serving as an Instructor in the Computer Training. The Principal Secretary, Labour and Employment Department, Gandhinagar, accorded sanction under Section 19 of the Act to prosecute the writ-applicant. The writ-applicant was placed under suspension by order dated 2nd June 2000. Later on, the order of suspension was revoked and the writ-applicant was posted as the Assistant Director (Training) in the office of the Director of Employment and Training. The State Government, in its Labour and Employment Department, also considered initiation of departmental inquiry. However, no departmental inquiry was initiated at any point of time. The Special Judge, Fast Track Court No.3, Bharuch, held the writ-applicant guilty of the offence punishable under the provisions of the Corruption Act and passed an order of Page 3 of 54 HC-NIC Page 3 of 54 Created On Sat Aug 27 06:23:17 IST 2016 C/SCA/15902/2015 CAV JUDGMENT conviction and sentenced him to undergo simple imprisonment for a period of three years with fine of Rs.5,000=00.
Since the trial Court convicted the writ-applicant holding him guilty of the offence under the Prevention of Corruption Act, the writ-applicant was ordered to be dismissed from service vide order dated 6th September 2005. The order of dismissal was made the subject matter of challenge by filing the Special Civil Application No.12391 of 2005 before this Court. The said writ-application was ordered to be summarily rejected vide order dated 6th September 2005, which reads as under :
"The petitioner challenges the order of punishment dated 14th March, 2005 made by the State Government.
In Bharuch ACB Police Station Crime Register No. 4 of 2000, an offence punishable under Sections 7, 13 [1] & 13 [2] of the Prevention of Corruption Act was registered against the petitioner, a Principal in the Industrial Training Institute, Ankleshwar. Pursuant to the said complaint, the petitioner was prosecuted in Special ACB Case No. 14 of 2000. By the judgment and order dated 15th January, 2003 passed by the Special Judge, Bharuch, the petitioner has been convicted for offence punishable under Secs. 235 (2) IPC and Secs. 7, 13 [1] & 13 [2] of the Prevention of Corruption Act. In view of the said conviction, the petitioner has been sentenced to undergo in all five years of imprisonment and to pay fine of Rs. 10,000/=. In the event, the petitioner fails to pay the fine, an additional sentence of imprisonment for one year has been imposed upon the petitioner. Pursuant to the said order of conviction and sentence the petitioner has been dismissed from service by the impugned order.
The only contention that is raised before me is that against the order of conviction, the petitioner has preferred Criminal Appeal No. 92 of 2003 before this Court which is admitted to final hearing. Pending the Appeal, the petitioner has been released on bail. It is Page 4 of 54 HC-NIC Page 4 of 54 Created On Sat Aug 27 06:23:17 IST 2016 C/SCA/15902/2015 CAV JUDGMENT submitted the petitioner has also preferred Misc. Civil Application No. 7709 of 2005 for stay of the conviction and finding of guilt recorded by the Criminal Court.
In view of the Full Bench decision of this Court in the matter of P.D Waghela & Ors. v. G.C. Raiger, Deputy I.G.P & Ors.[1994 (1) GLR 241], the State Government has authority to initiate departmental proceeding against the delinquent servant who has been convicted on a criminal charge by the competent Court. Pendency of appeal against conviction and sentence or release of the delinquent on bail, pending such appeal shall not debar the State Government from taking disciplinary action against the convicted servant.
Having regard to the nature of guilt proved against the petitioner, the order of dismissal from service is wholly justified. The petition is summarily rejected."
Being dissatisfied with the summary rejection of the writ- application, the writ-applicant herein preferred the Letters Patent Appeal No.330 of 2006. A Division Bench of this Court, by order dated 24th March 2006, dismissed the appeal in the following terms :
"This appeal is directed against the order dated 6.9.2005 of the learned Single Judge dismissing the petition in which the appellant had challenged the order of dismissal from service on the ground of conviction for the offences punishable under Section 235(2) of the Indian Penal Code and Sections 7, 13(1) and 13(2) of the Prevention of Corruption Act and the appellant has also been sentenced to undergo five years of imprisonment and to pay fine of Rs.10,000/-. The appellant contended that his Criminal Appeal has been admitted by this Court and that he has been released on bail.
The learned Single Judge has rightly relied on the decision of a Full Bench of this Court in PD Waghela vs. GC Raiger, Deputy IGP, 1994 (1) GLR 241 holding that the State Government has power to initiate departmental proceeding and pass an order of dismissal against the Page 5 of 54 HC-NIC Page 5 of 54 Created On Sat Aug 27 06:23:17 IST 2016 C/SCA/15902/2015 CAV JUDGMENT delinquent employee who has been convicted on a criminal charge and that pendency of appeal against conviction or release of the delinquent on bail, pending such appeal does not debar the State Government from taking disciplinary action against the convicted servant.
2. The contention raised by the appellant before us was that the Joint Secretary who signed the impugned order dated 14.3.2005 had no authority was not raised before the learned Single Judge. Even otherwise, the Joint Secretary is merely a communicating agency. The impugned order is passed under the orders of, and in the name of the Governor, and, therefore, the contention appears to be misconceived.
The appellant also sought to raise other contentions which might have a bearing on the question of his conviction. However, in this appeal we cannot entertain those contentions.
3. The appeal is, therefore, summarily dismissed.
4. Since the appeal is dismissed, the Civil Application does not survive and is disposed of accordingly."
The writ-applicant, being dissatisfied with the judgment and order of conviction passed by the trial Court, preferred the Criminal Appeal No.92 of 2003 before this Court. The said appeal was admitted on 21st January 2003 and the substantive order of sentence was ordered to be suspended from its operation till the final disposal of the criminal appeal. The appeal was taken up for hearing by a learned Single Judge of this Court, and vide judgment and order dated 12th January 2015, allowed the same. The judgment and order dated 15 th January 2003 passed by the Special Judge, Bharuch, was ordered to be quashed and set-aside.
It appears that this Court gave benefit of doubt to the writ-applicant and acquitted him of all the charges. This Court Page 6 of 54 HC-NIC Page 6 of 54 Created On Sat Aug 27 06:23:17 IST 2016 C/SCA/15902/2015 CAV JUDGMENT took the view that mere recovery of the currency notes by itself would not be sufficient to hold the accused guilty, more particularly, when the prosecution was unable to satisfactorily prove the demand.
In such circumstances referred to above, the writ- applicant prays that since he has been acquitted by this Court the order of dismissal from service dated 14th March 2005 should go and he should be paid the full salary for the interregnum period, i.e. for the period between the date of dismissal till the date he attained superannuation.
One of the reliefs prayed for in this writ-application is that since he has been acquitted by this Court, he should also get the benefits flowing from the judgment of this Court delivered in the Special Civil Application Nos.1629 of 1989 and 3938 of 1992 respectively. The two writ-applications were filed by the writ-applicant in connection with the issue relating to promotion.
Mr.Mohanan, the learned counsel appearing for the writ- applicant vehemently submitted that the order of dismissal from service was passed since the writ-applicant was held guilty by the trial Court and was convicted and sentenced to undergo three years simple imprisonment. According to Mr.Mohanan, since his client has now been acquitted by this Court in appeal, the order of dismissal from service would be rendered void-ab-initio. According to him, his client is entitled to full backwages from the date of dismissal till the date he attained superannuation.
He would submit that with the conviction being set-aside Page 7 of 54 HC-NIC Page 7 of 54 Created On Sat Aug 27 06:23:17 IST 2016 C/SCA/15902/2015 CAV JUDGMENT by the appellate court, the position at law would be as if the writ-applicant was never convicted at law and the dismissal, not having been made in conformity with Article 311(2) of the Constitution, became a nullity from the date of acquittal on appeal.
In support of his submissions, he has placed reliance on the following decisions :
(1) Deputy Director of Collegiate Education (Administration), Madras v. S.Nagoor Meera, (1995)3 SCC 377;
(2) Tarini Kumar v. Chief Commercial Superintendent, Eastern Railway, AIR 1965 Calcutta 75;
(3) Kunwar Bahadur v. Union of India, AIR 1969 Allahabad 414;
(4) P.D.Waghela and others v. G.C.Raiger, Deputy IGP and others, (1994)1 GLR 240.
Mr.Mohanan prays that there being merit in this writ- application, the same be allowed and the reliefs as prayed for be granted.
On the other hand, this writ-application has been vehemently opposed by the learned AGP appearing for the respondents. According to the learned AGP, the judgment and order of acquittal passed by this Court in the Criminal Appeal No.92 of 2003 could not be said to have attained finality as the State has preferred the Special Leave to Appeal before the Page 8 of 54 HC-NIC Page 8 of 54 Created On Sat Aug 27 06:23:17 IST 2016 C/SCA/15902/2015 CAV JUDGMENT Supreme Court and the matter is pending as on date before the Supreme Court.
The learned AGP submitted that the acquittal could not be said to be an honourable acquittal or clean acquittal. Having regard to the evidence on record, the appellate court thought fit to give the benefit of doubt to the writ-applicant. In such circumstances, even if ultimately the appeal before the Supreme Court fails, the writ-applicant would not be entitled to full pay and allowances as claimed by him in this writ- application.
The learned AGP has placed reliance on Rule 70 of the Gujarat Civil Services (Joining Time, Foreign Service, etc.) Rules, 2002, in this regard. The learned AGP pointed out that Rule 70 of the GCSR is paramateria to Rule 152 of the Bombay Civil Services Rules. A Division Bench of this Court, in the case of D.M.Gohil v. State of Gujarat and others, (2000)2 GLR 1574, had an occasion to consider Rule 152 of the BCSR. The learned AGP pointed out that in the case of D.M.Gohil (supra), the very same argument was canvassed like the one in the case in hand. The Division Bench, having taken notice of the fact that an acquittal appeal was filed by the State of Gujarat in this Court and was pending for final hearing, took the view that the petitioner was not entitled to claim regularisation of the period of suspension and the consequential benefits till the final disposal of the criminal appeal.
In such circumstances referred to above, the learned AGP prays that there being no merit in this writ-application, the same be rejected.
Page 9 of 54HC-NIC Page 9 of 54 Created On Sat Aug 27 06:23:17 IST 2016 C/SCA/15902/2015 CAV JUDGMENT Having heard the learned counsel appearing for the parties and having considered the materials on record, the only question that falls for my consideration is, whether the writ-applicant is entitled to the reliefs as prayed for in this writ- application.
It appears from the affidavit-in-reply filed on behalf of the respondent no.1 that the State of Gujarat has preferred the Special Leave to Appeal in the Supreme Court challenging the judgment and order of acquittal passed by this Court in the Criminal Appeal No.92 of 2003. It also appears that there was delay in filing such appeal before the Supreme Court and the delay came to be condoned vide order dated 16th October 2015 and notice was issued to the other side, i.e. the writ-applicant herein.
I am told that till this date, no leave has been granted and the appeal is yet to be admitted.
Be that as it may, the fact remains that the judgment and order of acquittal passed by this Court is the subject matter of challenge before the Supreme Court. The Supreme Court may grant the leave and admit the appeal or may even deem fit to dismiss the appeal without granting any leave. If the appeal before the Supreme Court is dismissed, then that would put an end to the matter, but if it is ultimately admitted and allowed, then the entire scenario would get changed.
At this stage, let me look into Rule 70 of the Gujarat Civil Services Rules.
"70. Regularisation of pay and allowances and the period of absence from duty where dismissal, removal or suspension is set aside as a result of appeal or review Page 10 of 54 HC-NIC Page 10 of 54 Created On Sat Aug 27 06:23:17 IST 2016 C/SCA/15902/2015 CAV JUDGMENT and such Government employee is re-instated :
(1) When a Government employee who has been dismissed, removed or suspended is reinstated, the authority competent to make order of re-instatement shall consider and make a specific order :-
(a) regarding the pay and allowances to be paid to the Government employee for the period of his absence from duty; and
(b) whether or not the said period shall be treated as a period spent on duty.
(2) Where the authority mentioned in sub-rule (1) is of opinion that the Government employee has been fully exonerated or in the case of suspension that it was wholly unjustified; the Government employee shall be given the full pay and allowances to which he would have been entitled had he not been dismissed, removed or suspended as the case may be.
(3) In other case, the Government employee shall be given proportion of such pay and allowances as the competent authority may prescribed :
Provided that the payment of allowances under sub-rule (2) or (3) shall be subject to all other conditions under which such allowances are admissible."
Let me now look into the decisions on which strong reliance has been placed by the learned counsel appearing for the writ-applicant. The decisions are not directly applicable. Some of the observations do support the contention put forward by the learned counsel appearing for the writ- applicant.
In the case of the Deputy Director of Collegiate Education (supra), the Supreme Court observed as under :
"6.Article 311(2) declares that no person, who is a member of the civil service of the Union or All-India Page 11 of 54 HC-NIC Page 11 of 54 Created On Sat Aug 27 06:23:17 IST 2016 C/SCA/15902/2015 CAV JUDGMENT service or a civil service of a State or holds a civil post under the Union or a State shall be dismissed, removed or reduced in rank except after an enquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges. The second proviso, however, carves out three exceptions to the said rule. We arc concerned with the first exception mentioned under clause (a). Insofar as it is relevant, the second proviso reads as follows:
"Provided further that this clause shall not apply -
(a) where a person is dismissed or removed or reduced in rank on the ground o f conduct which has led to his conviction on a charge."
7. This clause, it is relevant to notice, speaks of "conduct which has led his conviction on a criminal charge". It does not speak of sentence or punishment awarded. Merely because the sentence is suspended and/or the accused is released on bail, the conviction does not cease to be operative. Section 389 of the Code of Criminal Procedure, 1973 empowers the appellate court to order that pending the appeal "the execution of the sentence or order appealed against be suspended and also if he is in confinement that he be released on bail or on his own bond." Section 389(1), it may be noted, speaks of suspending "the execution of the sentence or order", it does not expressly speak of suspension of conviction. Even so, it may be possible to say that in certain situations, the appellate court may also have the power to suspend the conviction - an aspect dealt with recently in Rama Narang v. Ramesh Narang (1995 (1) J.T.
515). At pages 524 and 525, the position under Section 389 is stated thus:
"Section 389(1) empowers the Appellate Court to order that the execution of the sentence or order appealed against be suspended pending the appeal. What can be suspended under this provision is the execution of the sentence or the execution of the order. Does 'Order' in Section 389(1) empowers the Appellate Court to order that the execution of the sentence or order appealed against be suspended pending the appeal. What Page 12 of 54 HC-NIC Page 12 of 54 Created On Sat Aug 27 06:23:17 IST 2016 C/SCA/15902/2015 CAV JUDGMENT can be suspended under this provision is the execution of the sentence or the execution of the order. Does 'Order' in- Section 389(1) mean order of conviction or an order similar to the one under Sections 357 or 360 or the Code? Obviously, the order referred to in Section 389(1) must be an order capable in execution. An order of conviction by itself is not capable of execution under the Code. It is the order of sentence or an order awarding compensation or imposing fine or release on probation which are capable of execution and which if not suspended, would be required to be executed by the authorities......
In certain situations the order of conviction can be executable, in the sense, it may incur a disqualification as in the instant case. In such a case the power under Section 389(1) of the Code would be invoked. in such situations, the attention of the Appellate Court must be specifically invited to die consequence that is likely to fall to enable it to apply its mind to the issue since under Section 389(1) it is under an obligation to support its order 'for reasons to be recorded by it in writing'. If the attention of the Court is not invited to this specific consequence which is likely to fall upon conviction how can it be expected to assign reasons relevant thereto?...... If such, a precise request was made to the Court pointing out the consequences likely to fall on the continuance of the conviction order, the Court would have applied its mind to the specific question and if it thought that case was made out for grant of interim stay of the conviction order, with or without conditions attached thereto, it may have granted an order to that effect. "
8. We need not, however, concerns ourselves any more with the power of the appellate court under the Code of Criminal Procedure for the reason that what is relevant for clause (a) of the second proviso to Article 311(2) is the "conduct which has led to his conviction on a criminal charge" and there can be no question of suspending the conduct. We are, therefore, of the opinion that taking proceedings for and passing orders of dismissal, removal or reduction in rank of a government servant who has been convicted by a criminal court is not barred merely Page 13 of 54 HC-NIC Page 13 of 54 Created On Sat Aug 27 06:23:17 IST 2016 C/SCA/15902/2015 CAV JUDGMENT because the sentence or order is suspended by the appellate court or on the ground that the said government servant-accused has been released on bail pending the appeal.
9. The Tribunal seems to be of the opinion that until the appeal against the conviction is disposed of, action under clause (a) of the second proviso to Article 311(2) is not permissible. We see no basis or justification for the said view. The more appropriate course in all such cases is to take action under clause (a) of the second proviso to Article 311(2) once a government servant is convicted of a criminal charge and not to wait for the appeal or revision, as the case may be. If, however, the government servant- accused is acquitted on appeal or other proceeding, the order can always be revised and if the government servant is reinstated, he will be entitled to all the benefits to which he would have been entitled to had he continued in service. The, other course suggested, viz., to wait till the appeal, revision and other remedies are over, would not be advisable since it would mean continuing in service a person who has been convicted of a serious offence by a criminal court. It should be remembered that the action under clause (a) of the second proviso to Article 311(2) will be taken only where the conduct which has led to his conviction is such that it deserves any of the three major punishments mentioned in Article 311(2). As held by this court in Shankardass v. Union of India (1985 (2) S.C.R. 358):
"Clause (a) of the second proviso to Article 311(2) of the Constitution confers on the government the power to dismiss a person from services "on the ground of conduct which has led to his conviction on a criminal charge." But that power like every other power has to be exercised fairly, justly and reasonably. Surely, the Constitution does not contemplate that a government servant who is convicted for parking his scooter in a no-parking area should be dismissed from service. He may perhaps not be entitled to be heard on the question of penalty since clause (a) of the second proviso to Article 311(2) makes the provisions of that article inapplicable when a penalty is to be imposed on a Page 14 of 54 HC-NIC Page 14 of 54 Created On Sat Aug 27 06:23:17 IST 2016 C/SCA/15902/2015 CAV JUDGMENT Government servant on the ground of conduct which has led to his conviction on a criminal charge. But the right to impose a penalty carries with it the duty to act justly."
10. What is really relevant thus is the conduct of the government servant which has led to his conviction on a criminal charge. Now, in this case, the respondent has been found guilty of corruption by a criminal court. Until the said conviction is set aside by the appellate or other higher court, it may not be advisable to retain such person in service. As stated, above, if he succeeds in appeal or other proceedings, the matter can always be reviewed in such a manner that he suffers no prejudice."
The decision of the Supreme Court lays down a proposition of law that a Government servant can be proceeded departmentally even if the appeal before the higher court against the judgment and order of conviction is pending and the sentence is suspended from its operation under Section 389 of the Code of Criminal Procedure.
What is important for the writ-application is para 10, which has been quoted above. The Supreme Court, in para 10, has taken the view that until the conviction is set-aside by the appellate or other higher courts, it may not be advisable to retain such person in service. However, if such person succeeds in appeal or other proceedings, the matter can always be reviewed in such a manner that he would suffer no prejudice.
The Full Bench of this Court in P.D.Waghela (supra) was called upon to answer a reference. The question was as under :
"Would the 'conviction' at the hands of a competent Criminal Court in the first instance suffice, or should the Page 15 of 54 HC-NIC Page 15 of 54 Created On Sat Aug 27 06:23:17 IST 2016 C/SCA/15902/2015 CAV JUDGMENT 'conviction' await confirmation at the hands of a final or ultimate competent Criminal Court ?"
The Full Bench of this Court in P.D.Waghela (supra) has taken note of both the Calcutta High Court decisions on which reliance has been placed by Mr.Mohanan. The Full Bench observed as under :
"[10] In R.S.Das, s/o. Kamta Prasad v. Divisional Superintendent, Allahabad, ATR 1960 Allahabad 538, a learned single Judge of the High Court of Allahabad dealt with a case, where the dismissal occurred on conviction by the first Court and, on appeal, the conviction was reversed and the servant was acquitted and the servant demanded reinstatement and in that contingency, it was opined that by the learned single Judge of the High Court of Allahabad that the very foundation on which the disciplinary order was based has fallen and when the foundation should disappear, the edifice must also necessarily go.
[11] In The Divisional Superintendent, Northern Railway, Allahabad v. Ram Saran Das, AIR 1961 Allahabad 336, a Bench of the High Court of Allahabad also dealt with a case of dismissal happening on conviction and the conviction getting reversed and acquittal being awarded to the servant on appeal and the servant asking for reinstatement. The Bench held that the removal of the order of conviction had the effect of removing the entire basis of such an order and hence, the order of dismissal based on that must also fall with it.
[12] In Union of India, represented by the General Manager, Park Town, Madras v. R. Akbar Sheriff, AIR 1961 Madras 488, a Bench of the High Court of Madras dealt with a case, where the dismissal was based on conviction and subsequently, the conviction was set aside and the servant was reinstated. He was, however, denied the salary for the period from the date of his dismissal to the date of his reinstatement. After referring to the scope of Arts. 310 and 311, the opinion was expressed as follows :Page 16 of 54
HC-NIC Page 16 of 54 Created On Sat Aug 27 06:23:17 IST 2016 C/SCA/15902/2015 CAV JUDGMENT "... The immunity of a civil servant under the Union of India from dismissal or removal from service or reduction in rank until he has been given a reasonable chance of showing cause against the action proposed to be taken against him is taken away under proviso (a) to Art. 311(2) in a case where the dismissal or removal from service or reduction in rank is based upon the ground of conduct which resulted in his conviction on a criminal charge. In order to sustain an order of dismissal from service of a civil servant without compliance of the provisions of Art. 311(2), there must be a conviction of that person on a criminal charge by a competent Court.
Once the conviction is set aside or quashed the dismissal order must fall to the ground. An acquittal of a person of a criminal charge by a Higher Court setting aside the conviction passed by a subordinate or an inferior Court is tantamount to, the person not having been convicted at all. The setting aside of a wrong order of a Court results in the position as if such order was never in existence, though as a fact the order was passed and lasted till it was set aside. This view of the matter is not a legal fiction as the proceedings forming the subject- matter of a criminal charge against a person from the primary Court of trial to the ultimate Court of final appeal or revision really constitute one proceeding and however varying the fortunes of the person indicated may be, the proceeding can always have only one result, and that is the result of the last proceeding which becomes indefeasibly final..."
The learned Judges of the Bench of the High Court of Madras relied on the pronouncements in Dilbagh Rai v. Divl. Supdt, Northern Rly., AIR 1959 Punjab 401, and in R.S.Dass v. Divl. Superintendent, Allahabad, AIR 1960 Allahabad 538.
[13] In Dhanji Ram Sharma v. Union of India & Anr., AIR 1985 Punjab 153, a learned single Judge of the High Court of Punjab held that when the conviction, on the basis of which the servant was visited with an order of dismissal, was set aside on appeal, he will be entitled to Page 17 of 54 HC-NIC Page 17 of 54 Created On Sat Aug 27 06:23:17 IST 2016 C/SCA/15902/2015 CAV JUDGMENT reinstatement, as the order of dismissal has already turned out to be illegal, void and ineffective.
[14] In Kunwar Bahadur v. Union of India & Ors., AIR 1969 Allahabad 414, a Full Bench of the High Court of Allahabad dealt with a case, the facts of which ran as follows :
On 17-5-1956, the servant was convicted for taking a bribe. On 21-5-1956, the services of the servant were terminated and no opportunity to show cause as provided in Art. 311(2), was given to him. The servant appealed against his conviction and the appeal was allowed oh 9-4-1957. The servant instituted a suit for a declaration that the order of termination of his services is void and he must be held to have continued in service. His plea was countenanced and the Full Bench answered the question posed before it in his favour. The question, the Full Bench was called upon to answer, was as to whether the servant was entitled to the protection of clause (2) of Art. 311. Oak, J. spoke thus on the question :
"... Now, it is always open to Government to pass an order of dismissal or removal from service immediately after a Criminal Court records conviction. In that case the administration runs the risk of the conviction being later set aside in appeal or revision. It is for the administration to decide whether in a particular case it should pass an order of dismissal or removal immediately after conviction by the trial Court, or wait for the result of a possible appeal or revision. Such considerations of expediency can have little bearing on the interpretation of Art. 311 of the Constitution.
... My answer to the question of law referred to the Full Bench is this. In the circumstances of the present case, the respondents are not entitled to the benefit of sub-clause (a) of the proviso to Art. 311(2), and the plaintiff-appellant is entitled to the protection of clause (2) of Art. 311 of the Constitution..."Page 18 of 54
HC-NIC Page 18 of 54 Created On Sat Aug 27 06:23:17 IST 2016 C/SCA/15902/2015 CAV JUDGMENT Dwivedi, J. opined that where a conviction is set aside by a Court in appeal or revision, it is difficult to say that the conduct has resulted in or led to his conviction. The further passage in the judgment of Dwivedi, J. requires extraction as follows :
"... Let us now examine the context and scheme of clause (a). It is associated with clauses (b) and (c) of the proviso. Clause (b) dispenses with the hearing requirement of Art. 311(2) when it is impracticable, for instance, when the employee is absconding. Clause (c) dispenses with hearing when it is inexpedient in the interest of the security of the State. There are judicially recognized areas where the audi alteram partem rule does not operate : S. A. de Smith, Judicial Review of Administrative Action (1959 Edn ) pages 119 and 121. In the context of clauses (b) and (c) clause (a) appears to exclude the said rule because after conviction in a Court of law it is considered to be inessential. It is supposed that this area exclusion inheres in the principle of natural justice which assures the essence of justice or 'rational justice'. The reason for the exclusion of hearing is that the misconduct of the employee has already been proved in a regular trial in the Court of law. Bat this reason disappears where the conviction is upset in appeal or revision. The finding of guilt is then gone, and the misconduct remains unproven. The reason disappearing, the exclusion of hearing becomes unjust and unfair."
The learned Judge held :
"... Having regard to the language, context and scheme of clause (a) and to its serious impact on the employees' right to livelihood I concur with the opinion of Sri Justice Oak."
Gangeshwar Prasad, J., expressed his reasoning as follows :
"... So long as a conviction remains liable to be set aside it cannot be said to be determinate in its nature and its legal consequences, whether the conviction is already in question before a superior Page 19 of 54 HC-NIC Page 19 of 54 Created On Sat Aug 27 06:23:17 IST 2016 C/SCA/15902/2015 CAV JUDGMENT Court or not. The state of things created thereby is liable to change and, naturally, an order of dismissal which seeks to justify its non-compliance with the requirement of Art. 3110 on the basis of such a conviction stands upon an insecure foundation. The order cannot have a higher validity than the conviction from which it derives its precarious justification and it must remain subject to the ultimate shape which is given to the state of things by the order of the superior Court before which the conviction is challenged. If the conviction is set aside, the state of things is made to undergo a change not merely from the date of the setting aside of the conviction but from the date of the conviction itself. Indeed, a finding of guilt recorded against a person cannot be said to have been effectively set aside if the reversal and the setting aside were to operate only from the date when the order to that effect is made and the person concerned were to be, even thereafter, regarded as having remained guilty and convicted till then. Such an order, whenever it may come to be made, has the effect of wiping out the winding of guilt and the conviction altogether. Whether a person was entitled to the safeguard provided by Art,. 311(2) and whether he has had the benefit of that safeguard are justiciable matters and it should, therefore, follow that when a Court is called upon to decide these matters it has to see whether, in the light of the final out come of the criminal proceeding in respect of the conduct for which the said person was dismissed. It can be said that the proceeding had led to his conviction- If it is found that the conviction was subsequently set aside, it must, in my opinion, be held that at no point of time was the person concerned a person whose conduct, on the ground on which he was dismissed from service, had led to his conviction..."
[15] The solitary decision of a learned single Judge of the High Court of Rajasthan, to which our attention was drawn, is found in Dr. Trilochan Singh v. State of Rajasthan, 1983 (1) SLR 456. There, a contention was raised that the provisions of clause (a) of second proviso to sub-art. (2) of Art. 311 of the Constitution, which excludes the application of sub-art. (2) of Art. 311 to Page 20 of 54 HC-NIC Page 20 of 54 Created On Sat Aug 27 06:23:17 IST 2016 C/SCA/15902/2015 CAV JUDGMENT cases where a person is dismissed or removed or reduced in rank on the ground of conduct, which has led to his conviction on a criminal charge, and the provision of sub-rule (1) of Rule 19 of the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958, which enables penalty being imposed on a Government servant on the ground of conduct which has led to his conviction on a criminal charge without following the procedure laid down in the said rules, can be invoked only in those cases where the conviction has become final and that the provisions would not be attracted in cases where the conviction is under challenge in appeal and the appeal is still pending. The learned single Judge of the High Court of Rajasthan was obliged to take note that the legal position, as laid down in the earlier pronouncements of that Court, was not contested and held that so long as the appeal against the conviction is pending before the Appellate Court, the service of the Government employee cannot be terminated on the basis of the conduct which has led to his conviction. We do not want to comment upon the scope of the concerned rule in the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958. But, our opinion placed on the plain and unambiguous terms of clause (a) of the second proviso to clause (2) Art. 311, being what it is, we are not able to fall in line with the view expressed by the learned single Judge in the above pronouncement with reference to the provisions of the Constitution.
[16] Though not on the subject of service law, yet we are obliged to advert to a pronouncement of the Supreme Court in Vidya Charan Shukla v. Purshottam Lal Kaushik, AIR 1981 SC 547, where the significance of an acquittal was taken note of in the context of a disqualification, which a returned candidate was asked to face on the date of scrutiny of his nomination papers in consequence of imposition of sentence. The Supreme Court held that the acquittal of a candidate, during the pendency of an election petition, wipes out the disqualification from the date of scrutiny. Thus, there are pronouncements in the sphere of remedial measures after the conviction is wiped out by the appellate or the revisional forum. The very conviction having been rooted out, any result solely resting on it must go. The repercussions generating from such conviction having been completely knocked out from the inception, the other Constitutional protection Page 21 of 54 HC-NIC Page 21 of 54 Created On Sat Aug 27 06:23:17 IST 2016 C/SCA/15902/2015 CAV JUDGMENT under clause (2) of Art. 311, which must be otherwise available must be held to have been breached.
[17] Now, we must advert to cases, to which our attention has been drawn and in which cases, specific service rules or instructions have taken the field. As we made it clear at the inception of this pronouncement of ours, our concentration is only on the language of clause
(a) of the second proviso to clause (2) of Art. 311 and we have not traversed beyond that provision and any opinion of ours will have relevance only where the service rule or rules are in pari materia with the above provisions of the Constitution.
[18] In Bholanath Khanna v. Union of India & Ors., 1975 (1) SLR 277, a learned single Judge of this Court had occasion to construe Rule 14 of the Railway Servants (Discipline and Appeal) Rules, 1958. The language of the Rule is not in pari materia with the language of the second proviso to clause (2) of Art. 311. To demonstrate how differently the language of that Rule is couched, we are obliged to extract that Rule as such :
"14. Special procedure in certain case :
Notwithstanding anything contained in Rules 9 to 13 -
(i) Where any penalty is imposed on a Railway servant on the ground of conduct which has led to his conviction on a criminal charge, or
(ii) Where the disciplinary authority is satisfied, for reasons to be recorded by it in writing, that it is not reasonably practicable to hold an inquiry in the manner provided in these rules; or
(iii) Where the President is satisfied that in the interest of the security of the State, it is not expedient to hold an inquiry in the manner provided in these rules;
the disciplinary authority may consider the circumstances of the case and make such orders thereon as it deems fit..."
Page 22 of 54HC-NIC Page 22 of 54 Created On Sat Aug 27 06:23:17 IST 2016 C/SCA/15902/2015 CAV JUDGMENT In the light of the language of the Rule, the learned single Judge of this Court opined that the Disciplinary Authority is bound to afford an opportunity to show cause against the proposed penalty and the valuable right conferred by Rule 10(5) cannot be taken away in the garb of dispensing with the enquiry. The right conferred on the servant is to show that having regard to the nature of the fault, the attendant circumstances, the length of service, the nature of the service put in, the personal circumstances of the so vent coerced and having regard to the other penalty, a lenient view deserves to be taken, the decision could not be of any assistance to us to pronounce upon the legitimate construction to be put on Clause (a) of the second proviso to clause (2) of Art. 311. In Kiritkumar D. Vyas v. State & Ann, XXIII (2) [1982(2)] GLR 79, a Bench of this Court was obliged to assess the implication of Rule 14 of the Gujarat Civil Services (Discipline and Appeal) Rules, 1971. The said Rule reads as follows :
"14. Special procedure in certain cases ;
(1) Nothing contained in Rule 8 or 9 shall apply -
(i) where a penalty is to be imposed on a Government servant on the ground of conduct which has led to his conviction on a criminal charge, or
(ii) where the Disciplinary Authority is satisfied for reasons to be recorded in writing that it is not reasonably practicable to follow the procedure prescribed in the said rules: or
(iii) where the Government is satisfied that in the interest of the security of the State it is not expedient to follow such procedure.
(2) In cases to which the provisions of sub-rule (I) shall apply, the Disciplinary Authority may consider the circumstances of the case concerned and pass such order thereon as it deems fit :
Provided that the Commission shall be consulted before passing such orders in any case in which such consultation is necessary."Page 23 of 54
HC-NIC Page 23 of 54 Created On Sat Aug 27 06:23:17 IST 2016 C/SCA/15902/2015 CAV JUDGMENT Here again, we are not able to spell out any parity between the rule dealt with by the Bench and the Constitutional provision, which we are called upon to construe here. The Bench was obliged to find out the scope of the term 'consider', occurring in sub-rule (2) of Rule 14 of the Gujarat Civil Services (Discipline and Appeal) Rules, 1971. The Bench adverted to the following passage in the pronouncement of the Supreme Court in Divl. Personnel Officer v. T. R. Challappan, AIR 1975 SC 2216 :
"The concluding part of Rule 14(1) merely imports a rule of natural justice in enjoining that before taking final action in the matter the delinquent employee should be heard and the circumstances of the case may be objectively considered, The word 'consider' in the last part of Rule 14(1) merely connotes that there should be active application of the mind by the disciplinary authority after considering the entire circumstances of the case in order to decide the nature and extent of the penalty to be imposed on the delinquent employee on his conviction on a criminal charge. This provision confers power on the disciplinary authority to decide whether in the facts and circumstances of a particular case what penalty, if at all, should be imposed on the delinquent employee."
It must be noted that the Supreme Court was dealing with Rule 14(1) of the Railway Servants (Discipline and Appeal) Rules, 1968. The Bench proceeded further as follows :
"..These observations also make it clear that mere conviction on a criminal charge would not dispense with the requirement of at least an application of mind on the part of the disciplinary authority on the question of quantum of punishment after affording reasonable opportunity to the delinquent to be heard in regard to the quantum of punishment. Mere conviction, therefore, cannot be utilised for passing an order of dismissal blindfoldedly without hearing the delinquent on the question of sentence..."Page 24 of 54
HC-NIC Page 24 of 54 Created On Sat Aug 27 06:23:17 IST 2016 C/SCA/15902/2015 CAV JUDGMENT This pronouncement is also of no avail for our purpose.
[19] In Laxman Waghjimal v. K N. Sharma, D.S.P. Kutch & Ann, 1985 GLH (UJ) 28, a learned single Judge of this Court was dealing with a Government Circular dated 1-8- 1966, which spoke to the effect that any action, on the basis of a conviction by a Court of law, could be taken only after the matter is finally decided in appeal or appeals and till then, no action regarding removal or compulsory retirement has to be taken. The learned single Judge characterised this provision as quite sensible. For the same reason, for which we found no assistance from the other pronouncements speaking on different rules, we cannot take any guidance from this pronouncement.
[20] In Ahmadkhan Inayatkhan v. District Superintendent of Police, Banaskantha & Am., XXX (2) [1989 (2)] GLR 1301, a Bench of this Court was again dealing with Rule 14 of the Gujarat Civil Services (Discipline and Appeal) Rules, 1971. After adverting to the pronouncement in Kiritkumar D. Vyas v. State & Ann, XXIII (2) [1982 (2)] GLR 79. and in Laxman Waghjimal v. K N. Sharma, D.S.P. Kutch, 1985 GLH (UJ) 28, the Bench opined that failure to give notice to show cause before imposing a penalty, even in the case of the Government servant convicted by a Criminal Court, vitiates the dismissal based on conviction. It is lire that the Bench in the above pronouncement was of the view that the learned single Judge in Laxman Woghjiwal v. K. N. Sharma, D.S P., Kutch, 1985 GLH (UJ) 28 held that until the criminal proceedings are finally over, no action could be taken, simply on the ground that the Lower Court has found the delinquent guilty. The Bench has not adverted to the fact that the learned single Judge in Laxman Waghjimal v. K N. Sharma, D.S.P; Kutch, 1985 GLH (UJ) 28 was concerned with a Government Circular, dated 1-8-1966 speaking on the lines, noted above. On Rules, Circulars, and Instructions providing for different contingencies and speaking in different language, we have no comment and we say this at the risk of repetition because the opinion, which we express, should not be taken to have touched upon such provisions.
[21] Accordingly we express our opinion on the question coming up for our consideration as follows :
Page 25 of 54HC-NIC Page 25 of 54 Created On Sat Aug 27 06:23:17 IST 2016 C/SCA/15902/2015 CAV JUDGMENT The conviction spoken to in clause (a) of the second proviso to clause (2) of Art. 311, to form a basis for the dismissal, removal or reduction in rank, could be one recorded by a competent Criminal Court in the first instance and the preferring of an appeal or revision against such conviction and the pendency of the same will not alter the position and action, taken on the basis of such conviction, need not conform to clause (2) of Art. 311, since by the express terms of the second proviso thereto, clause (2) of Art. 311 is dispensed with."
The ratio of the Full Bench decision discernible is, that if a Government servant is convicted by a criminal court for any criminal offence and if he is to be dismissed from service because of such conviction, Article 311(2) of the Constitution will have no application in that regard since by the express term of the second proviso thereto clause (2) of Article 311 is dispensed with. This judgment also, as such, has no direct application except the fact that if the person is acquitted and such acquittal attains finality, then that would be an end to the matter.
Mr.Mohanan also submitted that there is nothing like clean acquittal and one giving the benefit of doubt. According to Mr.Mohanan, there is no concept in the Criminal Procedure Code or the criminal jurisprudence like clean acquittal and acquittal on benefit of doubt. Therefore, in such circumstances, according to Mr.Mohanan, the writ-applicant is entitled to claim the entire backwages with increments, etc. This Court, while allowing the Criminal Appeal No.92 of 2003, observed in para 13 as under :
"In light of the aforesaid therefore, the case of the prosecution creates doubt about the veracity of the incident itself. Benefit of which has to go to the Page 26 of 54 HC-NIC Page 26 of 54 Created On Sat Aug 27 06:23:17 IST 2016 C/SCA/15902/2015 CAV JUDGMENT appellant. Merely recovery of notes would not be sufficient to convict the appellant. The prosecution has not been able to prove the demand to its hilt and the version of PW1 as well as PW2 creates doubt and therefore, as held by the Apex Court in the case of B.Jayaraj Vs. State of A.P., reported in 2014 (2) GLH 149, the prosecution has not been able to prove the demand and therefore, the prosecution has not been able to prove to its hilt the offence punishable under Section 7 of the Act..."
While concluding, in para 15, the following was observed :
"The aforesaid discussion therefore leads to the conclusion that the prosecution has failed to prove the charge levelled against the appellant and the case of the prosecution creates doubt about its veracity, benefit of which should be accorded to the appellant accused. The appellant accused is required to prove otherwise on preponderance of probability and by defence evidence, the appellant accused has discharged the same and hence, presumption under Section 20 has been wrongly appreciated by the learned Trial Court."
Thus, it is very clear that this Court extended the benefit of doubt and acquitted the writ-applicant.
Rule 70 of the GCSR noted above, talks about regularisation of pay and allowances and the period of absence from duty where dismissal, removal or suspension is set-aside as a result of appeal or review and the Government employee is reinstated. Rule 70, in my opinion, will apply to both, i.e. the departmental inquiry as well as criminal prosecution. Clause (2) of Rule 70 when it talks about the Government employee being fully exonerated, the same should be understood as fully exonerated from the departmental inquiry or the criminal Page 27 of 54 HC-NIC Page 27 of 54 Created On Sat Aug 27 06:23:17 IST 2016 C/SCA/15902/2015 CAV JUDGMENT prosecution. The term "fully exonerated" in context with the criminal prosecution should be understood as a clean acquittal or an honourable acquittal and not an acquittal by giving the benefit of doubt. If the Government employee is fully exonerated, there is no discretion perhaps left with the authority concerned, but to give full pay and allowances to which the employee would have been entitled had he not been dismissed from service. Clause (3) of Rule 70 deals with other cases. The same is suggestive of the fact that if the Government employee is not fully exonerated, then he would be entitled to a proportion of such pay and allowances as the competent authority may prescribe. Having regard to the nature of acquittal, the case of the writ-applicant would fall in Clause (3) of Rule 70.
At this stage, let me refer to the Division Bench decision of this Court in the case of D.M.Gohil (supra). The only distinguishing feature so far as the case of D.M.Gohil (supra) is concerned, is that the same was one in which the issue was with regard to the regularization of the suspension period. So far as the case in hand is concerned, the consideration would be, whether the Government servant has been fully exonerated or not. However, the principle explained by the Division Bench will apply with all force. I may quote the observations made by the Division Bench from paragraphs 10 to 14 as under :
"10. In our opinion, none of the contentions can be upheld. So far as the first prayer is concerned, the relevant provision is Rule 152 of the Rules. The said Rule is material in deciding the controversy raised in this appeal and requires to be quoted in extenso.
"152. (1) When a Government servant who has Page 28 of 54 HC-NIC Page 28 of 54 Created On Sat Aug 27 06:23:17 IST 2016 C/SCA/15902/2015 CAV JUDGMENT been dismissed, removed or suspended is reinstated, the authority competent to or the reinstatement shall consider and make a specific order -
(a) regarding the pay and allowances to be paid to the Government servant for the period of his absence from duty; and
(b) whether or not the said period shall be treated as a period spent on duty.
(2) Where the authority mentioned in sub-rule (1) is of opinion that the Government servant has been fully exonerated or in the case of suspension that it was wholly unjustified the Government servant shall be given the full pay and allowances to which he would have been entitled had he not been dismissed, removed or suspended, as the case may be.
(3) In other case, the Government servant shall be given such proportion of such pay and allowances as such competent authority may prescribe;
Provided that the payment of allowances under clause (2) or (3) shall be subject to all other conditions under which such allowances are admissible.
(4) In a case falling under clause (2) the period of absence from duty shall be treated as a period spent on duty for all purposes.
(5) In case falling under clause (3) the period of absence from duty shall not be treated as a period spent on duty unless such competent authority specifically directs that it shall be so treated for any specified purpose."
In our opinion, the only interpretation which can be given to the above rule is that the proceedings must have been finalised and the authority must have formed an opinion that the suspension of the government servant was "wholly unjustified". It is true that in the Page 29 of 54 HC-NIC Page 29 of 54 Created On Sat Aug 27 06:23:17 IST 2016 C/SCA/15902/2015 CAV JUDGMENT case on hand, the appellant was acquitted by the Special Judge, Bhavnagar. But it is equally true that an appeal against order of acquittal is filed by the State of Gujarat which is already admitted and awaits final hearing. The question whether or not the appellant was properly acquitted by the Special Judge, Bhavnagar, is at large before this Court. In our considered opinion, therefore, the acquittal recorded against the appellant cannot be said to be final and Rule 152 of the Rules cannot be pressed in service at this stage.
11. The alternative argument of the learned counsel also cannot be accepted. Since the proceedings are not over and the appeal is still pending, no direction can be issued to the authorities to decide the case of the appellant in accordance with Rule 152 of the Rules. This is a premature stage. Such question can be decided only after the proceedings are over inasmuch as on the basis of the final order passed by a competent Court in criminal proceedings and/or departmental proceedings, the authorities will have to exercise jurisdiction under Rule 152 in accordance with statutory provisions. Hence, even that direction cannot be issued.
12. There is an additional reason also for not granting an equitable and discretionary relief to the petitioner-appellant though the learned Single Judge has not dismissed the petition on that ground. From the record, it is clear that the State had decided to file appeal against an order of acquittal and the appellant-petitioner was informed about that fact. Since the appellant was acquitted by a criminal court, he was ordered to be reinstated but with a clear understanding and on condition that a decision was taken to file appeal against an order of acquittal but the department will reinstate him in service provided he will not insist for regularisation of intervening period during which he was placed under suspension. The said order was accepted by the appellant-petitioner and he was reinstated. He was asked to given an understanding to that effect. The appellant, however, did not furnish necessary undertaking which was required to be furnished by him. He was, therefore, by another communication, asked to furnish necessary undertaking. Thereafter, such undertaking was given by him which is on record. Now the appellant backs out of that undertaking and Page 30 of 54 HC-NIC Page 30 of 54 Created On Sat Aug 27 06:23:17 IST 2016 C/SCA/15902/2015 CAV JUDGMENT claims regularisation.
13. It was no doubt, submitted that there cannot be an estoppel against statute. In our view, however, the contention is ill-founded, inasmuch as the course adopted by the authorities in asking for an undertaking cannot be said to be contrary to law or against the provisions of any statute since appeal against the order of acquittal is very much before the Court and the proceedings are not finally concluded. For that reason also, in our opinion, extra ordinary and discretionary powers under Article 226 cannot be exercised in favour of the appellant.
14. It may also to be appreciated that an anomalous situation may arise if the prayer of the appellant is granted by the Court at this stage. Suppose, tomorrow the appeal against acquittal is set aside and the appellant is convicted, what will happen to an order of regularisation passed in favour of the appellant ? As on today, a competent court or an authority will have to pass an order treating the appellant as acquitted because that is the only order which holds the field. In all probability, therefore, the authority will regularize the services of the appellant by treating the period of suspension "as on duty". If the appeal against the acquittal is allowed and he is convicted, not only that there is no question of regularisation of services of the petitioner-appellant, but he will be dismissed from service. In that case, the order which had been passed by this Court or by the authorities in pursuance of direction of this Court would be contrary to law. Obviously, such mandamus cannot be issued by this Court."
I had an occasion to consider this issue of honourable acquittal and acquittal on benefit of doubt in the case of Babubhai I.Patel, Special Civil Application No.2934 of 2008 decided on 3rd August 2016. I may quote the relevant observations as under :
"40. Let me now consider the case of Shri Babubhai Page 31 of 54 HC-NIC Page 31 of 54 Created On Sat Aug 27 06:23:17 IST 2016 C/SCA/15902/2015 CAV JUDGMENT Ishwarlal Patel i.e. the writ applicant of the Special Civil Application No.2934 of 2008. As observed by me the alleged bribe amount was recovered from the original accused No.3 i.e. the brother of Shri Babubhai Ishwarlal Patel. This Court in appeal recorded the finding that there was no cogent and reliable evidence to come to the conclusion that the original accused No.3 had accepted the amount at the instance of his brother i.e. Shri Babubhai Ishwarlal Patel. Having regard to the said doubt, this Court acquitted both the brothers, but by giving them the benefit of doubt. In such circumstances, the moot question would be whether Shri Babubhai Ishwarlal Patel also sails in the same boat with Shri R.B. Patel. The vociferous submission of Mr. Trivedi is that there is nothing like clean acquittal, honourable acquittal and acquittal on benefit of doubt. Once the prosecution fails to prove the case and the accused is acquitted, it is an acquittal for all purpose.
41. In support of his submission, Mr. Trivedi has placed strong reliance on a Division Bench decision of this Court in the case of Ramsinhji Viraji (supra). In the case before the Division Bench, Ramsinhji Viraji, a Head Clerk to the District Superintendent of Police was arrested for the offence of criminal breach of trust. In his capacity as the Police Accountant, he was placed under suspension. He came to be convictd by the trial Court for the offence punishable under Section 409 of the Indian Penal Code. His appeal before the Sessions Court was also ordered to be dismissed. The High Court exercising revisional power ordered re-trial of Ramsinhji. On re-trial, Ramsinhji was acquitted. Against the judgment and order of acquittal, the State preferred acquittal appeal before this Court. This Court dismissed the acquittal appeal. Ramsinhji was dismissed from service by the Inspector General of Police on the basis of the conviction. On his reinstatement, after he was acquitted, the issue regarding the treatment of the period of suspension as well as the period of absence from duty from the date of dismissal till the date of reinstatement cropped up. The authority took the view that the acquittal of Ramsinhji Viraji from the charges levelled against him was on the basis of benefit of doubt and his acquittal could not be treated as honourable. The Division Bench took notice of Rule 152 of the Bombay Civil Services Rules. It also considered a Supreme Court decision in para 5 of the judgment and ultimately, took Page 32 of 54 HC-NIC Page 32 of 54 Created On Sat Aug 27 06:23:17 IST 2016 C/SCA/15902/2015 CAV JUDGMENT the view that the concept of Honourable acquittal or full exoneration has no place in a criminal trial. The relevant observations are as under:
"4. Rule 152 of the B.C.S. Rules provides as follows:
152 (1) when a Government servant who has been dismissed, removed or suspended is reinstated, the authority competent to order the reinstatement shall consider and make a specific order-
(a) regarding the pay and allowances to be paid to the Government servant for the period of his absence from duty; and
(b) whether or not the said period shall be treated as a period spent on duty.
(2) Where the authority mentioned in clause (1) is of opinion that the Government servant has been fully exonerated or, in the case of suspension, that it was wholly unjustified, the Government servant shall be given the full pay and allowances to which he would have been entitled had he not been dismissed removed, or suspended, as the case may be.
Though the show cause notice, dated February 18, 1967, Annexure J to the petition, uses the words honourable acquittal in substance what appears to have been in the mind of the authorities concerned is the concept of full exoneration set out in sub-rule (2) of Rule 152 of the Bombay Civil Services Rules.
5 In Gopalkrishna v. State of M.P. AIR 1968 SC 240 the Supreme Court considered a similar rule, viz., Fundamental Rule 54 applicable to the employees in the Public Works Department of the Madhya Pradesh Government. Shelat, J, delivering the judgment of the Supreme Court pointed out in para 9 at page 243 of the report:-
"It is true that the order under F. R. 54 is in a sense a consequential order in that it would be passed after an order of reinstatement is Page 33 of 54 HC-NIC Page 33 of 54 Created On Sat Aug 27 06:23:17 IST 2016 C/SCA/15902/2015 CAV JUDGMENT made. But the fact that it is a consequential order does not determine the question whether the Government servant has to be given an opportunity to show cause or not. It is also true that in a case where reinstatement is ordered after a departmental inquiry the Government servant would ordinarily have had an opportunity to show cause. In such a case, the authority no doubt would have before him the entire record including the explanation given by the Government servant from which all the facts and circumstances of the case would be before the authority and from which he can form the opinion as to whether he has been fully exonerated or not and in case of suspension whether such suspension was wholly unjustified or not. In such a case the order passed under a rule such as the present Fundamental Rule might be said to be a consequential order following a departmental inquiry. But there are three classes of cases as laid down by the proviso in Art. 311 where a departmental inquiry would not be held viz., (a) where a person is dismissed removed or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge, (b) where the authority empowered to dismiss or remove a person or to reduce him in rank is satisfied for reasons to be recorded in writing that it is not reasonably practicable to hold such an inquiry, and (c) where the President or the Governor as the case may be is satisfied that in the interest of security of the State it is not expedient to hold such inquiry. Since there would be no inquiry in these classes of cases the authority would not have before him any explanation by the government servant. The authority in such cases would have to consider and pass the order merely on such facts which might be placed before him by the department concerned. The order in such a case would be exparte without the authority having the other side of the picture. In such cases the order that such authority would pass would not be a consequential order as Page 34 of 54 HC-NIC Page 34 of 54 Created On Sat Aug 27 06:23:17 IST 2016 C/SCA/15902/2015 CAV JUDGMENT where a departmental inquiry has been held.
Therefore, an order passed under Fundamental Rule 54 is not always a consequential order nor is such order a continuation of the departmental proceeding taken against the employee.
xx xx xx In such a case if an opportunity to show cause against the action proposed is not afforded, as admittedly it was not done in the present case, the order is liable to be struck down as invalid on the ground that it is one breach of the principles of natural justice.
xx xx xx We find that the High Court of Maharashtra has also taken in V R. Gokhale v. State of Maharashtra. ILR (1963) Bom 537 = (AIR 1963 Bom 137) the same view which we are inclined to take of the nature of function under Rule 152 of the Bombay Civil Service Rules, 1959 a rule in terms identical to those of Fundamental Rule 54 before us."
6. In the instant case, we find that following the correct legal principles, the State of Maharashtra, did issue the show cause notice but the show cause notice and the final order passed under Rule 152 both proceed on the footing that the petitioner was not honourably acquitted; or to use the language of Rule 152(2) was not fully exonerated.
7. In this context we may point out that a similar problme arose before a Division Bench of the Madras High Court in Union of India v. Jayaram, AIR 1960 Mad. 325; Rajamannar, C. J., delivering the judgment of the Division bench pointed out:-
"There is no conception like "honourable acquittal" in Criminal P. C. The onus of establishing the guilt of accused is on the prosecution, and, if it fails to establish the guilt beyond reasonable doubt, the accused is entitled to be acquitted.
Clause (b) of Article 193 of the Civil Service Regulation which says that when a Page 35 of 54 HC-NIC Page 35 of 54 Created On Sat Aug 27 06:23:17 IST 2016 C/SCA/15902/2015 CAV JUDGMENT Government servant who was under
suspension is honourably acquitted, he may be given the full salary to which he would have been entitled if he had not been suspended, applies only to the case of departmental inquiry.
Where the servant was suspended because there was a criminal prosecution against him, and he was acquitted therein, and reinstated, he is entitled under the general law, to the full pay during the period of his suspension. To such a case Art. 193(b) does not apply."
Clause (b) of Article 193 of the Civil Service Regulations, which was under consideration before the Madra High Court was substantially similar to our Rule 152, with this difference, that instead of the words fully exonerated the words were honourably acquitted. With respect we are in agreement with the reasoning of Rajamannar C. J. and in our opinion, it is not open to the authorities concerned to bring in the concept of honourable acquittal or full exoneration so far as the judgment of the Criminal Court is concerned. In a criminal trial the accused is only called upon to meet the charge levelled against him and he may meet the charge
(a) by showing that the prosecution case against him is not true or (b) that it is not proved beyond reasonable doubt; or (c) by establishing positively that his defence version is the correct version and the prosecution version is not correct. In any one of these three cases, if the Court comes to the reasonable doubt or that the prosecution case is not true or that the defence version is correct and is to be preferred as against the prosecution version, the Criminal Court is bound to acquit the accused. The accused is not called upon in every case to establish his complete innocence and it is sufficient for the purposes of criminal trial that he satisfies the Court that the prosecution has not established its case beyond reasonable doubt. Since he is not called upon to prove a positive case, the concept of honourable acquittal or full exoneration can have no place in a criminal trial and it is because of this reasoning that we agree with the observations of Rajamannar, C.J., in Jayarams case, AIR 1960 Mad.
Page 36 of 54HC-NIC Page 36 of 54 Created On Sat Aug 27 06:23:17 IST 2016 C/SCA/15902/2015 CAV JUDGMENT 325.
8. We find that this decision of the Madras High Court was followed by the Punjab High Court in AIR 1967 Punj. 422 and by the High Court of Jammu and Kashmir in Ghulam Nabi v. State, AIR 1966 J. and K. 27.
9. As against these three decisions and our view regarding the position as it emerges from the Criminal Procedure Code and Criminal Jurisprudence, the learned Assistant Government Pleader, on behalf of the first respondent relied upon certain observations of Narasimham, C.J., in State of Orissa v. Sailabehari, AIR 1963 Orissa 73. The learned Chief Justice of the Orissa High Court has observed at page 78 of the report:-
"But the learned Sessions Judge did not acquit the respondent honourably on the ground that the evidence of Gopal Sahu was not false. On the contrary he expressly stated that though there was a strong suspicion against the respondent the prosecution evidence did not completely exclude the possibility of the theory of planting. This only shows that the learned Judge applied the well known rule of criminal jurisprudence that in a criminal case the accused was entitled to the benefit of doubt. Thereafter further departmental enquiry in respect of the same subject matter was not excluded especially as the standard of proof required in such an enquiry against a delinquent public servant is not the same as that required against an accused in a criminal case."
With respect to the learned Chief Justice of the Orissa High Court, we are unable to agree with his reasoning that wherever an accused person has been acquitted in a criminal trial because of the application of the rule of benefit of doubt being given to the accused, there cannot be said to be honourable acquittal. In our opinion, it would be proper on our part to follow the decision of Rajamannar, C. J., cited above rather than the Page 37 of 54 HC-NIC Page 37 of 54 Created On Sat Aug 27 06:23:17 IST 2016 C/SCA/15902/2015 CAV JUDGMENT decision of Narashimham, C. J., and we prefer to follow the reasoning of Rajamannar, C. J.
10. In the instant case, it will open to the Government of Maharashtra if it so chose, to start a departmental enquiry in the proper manner for the purpose of establishing whether on the facts and in the circumstances of the case, the petitioner had been fully exonerated or deserved to be fully exonerated or not. In the absence of any such departmental Enquiry, it cannot be said that the State of Maharashtra has applied the correct principles of the facts of the present case.
11. Under these circumstances, the order passed by the State of Maharashtra on April 23, 1968 and communicated to the petitioner by the District Superintendent of Police, Banaskantha District by his letter, dated June 27, 1968, must be set aside and it must be held that the petitioner, who was suspended because there was criminal prosecution against him and was reinstated after he was acquitted is entitled to full pay during the period of his suspension as required under the general provisions of law.
12. We, therefore, quash and set aside the show cause notice, dated February 18, 1968; and we direct the opponents to treat the period from June 6, 1957 to October 28, 1965, as period spent on duty and we further direct the opponent to pay to the petitioner full pay and allowances for the entire period. The opponents will pay the costs of his petition to the petitioner. We further direct that the amount shall be paid to the petitioner within three months of the issuance of the Writ by this High Court. In the result, this Special Civil Application is allowed and the rule is made absolute."
42. I take notice from the materials on record of the fact that Rule 152 of the Bombay Civil Services Rules would be applicable in the present case. This is evident from the information received by Shri R.B. Patel under the Right to Information Act, 2005. In the case of M.V. Chauhan v. State of Gujarat [2000 (1) GLR 090], a Page 38 of 54 HC-NIC Page 38 of 54 Created On Sat Aug 27 06:23:17 IST 2016 C/SCA/15902/2015 CAV JUDGMENT learned Single Judge of this Court, while considering Rule 152 of the Bombay Civil Services Rules which is pari materia to Regulation 241 framed by the respondent herein, observed as under:
"A perusal of the rule discloses the scheme that when a person has been absent from duty either as a result of dismissal, removal or on being suspended is reinstated, the consequence of regularization of period of such absence from duty and payment of emoluments full or in addition to the subsistence allowance does not follow automatically, but requires order to be made separately in respect of two matters, firstly whether the period under consideration is to be treated as a period spent on duty or not and secondly, regarding the pay and allowance to be paid to the Government servant for the period of his absence from duty. That emanates from sub-rule [1]. Then envisaging distinction between the quality of reinstatement, the rule further provided guidelines for exercising of authority for the purpose of sub- rule [1]. Sub-rule [2] envisages where the Competent Authority is of the opinion that the government servant has been fully exonerated or in the case of suspension, it was wholly unjustified, he would have been entitled to full pay and allowances had he not been dismissed or suspended as the case may be. Sub-rule [3] envisages that in other case not falling in sub rule [2], the government servant shall be given such proportion of pay and allowances as the competent authority may prescribe. Rule also provides that the payment of allowance under clause [2] or [3] to be subject to all other conditions to which such allowances are admissible. Thus, providing for the pay and allowances to be paid for the period in question, namely in the case of full exoneration or a suspension wholly justified, the full pay and allowance in other cases as per the orders made by the competent authority, the provisions in sub-rule [4] and [5] relate the question of period of absence from duty to be treated as a period spent on duty or not. Where a case falls in sub-rule [2], the entire period of absence from duty is to be treated as a period spent on duty for all purposes. That is to say, Page 39 of 54 HC-NIC Page 39 of 54 Created On Sat Aug 27 06:23:17 IST 2016 C/SCA/15902/2015 CAV JUDGMENT treatment of entire period of absence from duty as a period spent on duty for all purposes without adjusting against available leave of any kind, is related to grant of full pay and allowances for the period of absence from duty. Sub-rule [5] governs the case of treatment of period of absence from duty in cases not governed by sub-rule [2]. As against treating that period automatically as a period spent on duty, u/s [4] read with rule [2], it envisaged specific order to be made in that regard. A specific order is required to be made to specify for the purpose for which it is to be treated on duty and for the purpose for which it is not to be treated on duty. Sub-rule [4] and sub-rule [5] makes two things amply clear. Where the period of absence is treated as a period spent on duty for all purposes, the payment of full pay and allowance for such period follows, or where sub-rule [2] operates, a specific order for treating the period of absence to be period on duty is not necessary. It follows as a matter of natural consequence. In other words, for the purpose of pay and allowances, scheme of rules intertwines the period of absence treated as period spent on duty for all the purposes which carries full pay and allowances. Sub-rule [3] and sub-rule [5] constitute part of same scheme, where the emoluments are to be paid in proportion as the competent authority may prescribe. This has obviously reference to the proportion between the period of absence from duty which has been treated as on duty and the period which has not been treated as spent on duty, but is adjusted against leave etc. There may be a case where period though treated as spent on duty for some specified purpose only, but not for the purpose of emoluments. There is no dispute and law is settled by a pronouncement of the Division Bench of this Court in case of Ramsunder Shamlal v/s Y.B.Jhala or his successor reported in 1999[1] GLH 150 that whenever an order is required to be made under sub-rule [3], as it affects the right of civil servant adversely, it is to be made in consonance with the principles of natural justice by affording the incumbent an opportunity of hearing before making such order, curtailing the emoluments or impinging in regularization of the period of absence from duty Page 40 of 54 HC-NIC Page 40 of 54 Created On Sat Aug 27 06:23:17 IST 2016 C/SCA/15902/2015 CAV JUDGMENT by not treating it fully or for all purpose to be on duty.
5. In this connection, it will also be apposite to notice that expression `fully exonerated' in the case where a person is being tried on a criminal charges and is acquitted requires consideration of the nature of acquittal. The government in its wisdom for maintaining uniformity has issued guidelines relevant for the present purpose that in what circumstances an acquittal on technical ground can be treated equivalent to acquittal on merit. The resolution of the government dated 2nd April 1983, clause [5] reads that :-
"Where the acquittal by court is on technical grounds, and if the government does not propose to go in appeal to a higher court or to take further departmental action, action should be taken in the same manner as if the official has been acquitted by the court on merits."
At least there is no dispute for the purpose of promotion, the acquittal in such event is treated to be a `full exoneration' and acquittal not merely on technical grounds.
6. The facts which requires to be noticed at this stage are that in consequence of acquittal of the petitioner vide judgement of the Supreme Court dated 3rd September 1997, by its order dated 22nd December 1997, respondents have promoted the petitioner to the post in question in consonance with the said resolution. The order of promotion reveals the consideration that the Supreme Court by its order dated 3rd September 1997 has declared the incumbent innocent which the State Government accepts and it has decided not to take any departmental action in respect of those charges as well. With these orders, it also directed that the entire period of absence from duty during suspension upto the date of retirement is to be treated as the period spent on duty uninhibitedly.
Page 41 of 54HC-NIC Page 41 of 54 Created On Sat Aug 27 06:23:17 IST 2016 C/SCA/15902/2015 CAV JUDGMENT The purpose for which such period is to be treated on duty was not restricted to any specified purpose. Once an uninhibited order of treating the entire period of absence from duty as spent on duty is made, the consequence must follow, as envisaged in the scheme of Rule 152, in entitling full pay and allowance to the incumbent as in case of period of absence from duty is deemed to be spent on duty for all purpose."
43. I take notice of the fact that the State Government in the cases in hand did not deem fit to challenge the judgment of acquittal passed by this Court before the Supreme Court. It accepted the judgment.
44. Thus, this Court in M.B. Chauhan (supra) made it clear that no distinction should be drawn between full exoneration and acquittal on technical ground or benefit of doubt for the purpose of promotion. However, will this proposition hold good so far as the claim for the back wages is concerned. No doubt in this regard, the submission of Mr. Trivedi is fortified to a considerable extent by the Division Bench decision of this Court in the case of Ramsinhji (supra).
45. I take notice of the fact that the decision in the case of Ramsinhji was delivered almost four decades back. Over a period of time, there has been a considerable shift in the concept of honourable acquittal and acquittal on the benefit of doubt. Let me explain in my own way the concept of acquittal on the basis of the benefit of doubt and honourable acquittal. There is nothing like an honourable acquittal, but the appropriate term should be clean acquittal. In a criminal prosecution, the guilt of the accused has to be proved beyond the reasonable doubt unlike the misconduct to be determined in a departmental proceeding on the preponderance of probability. There is a fine distinction between the two. Abundant caution is always desirable in all spheres of human activities. Any restraint by way of abundant caution need not be entangled with the concept of benefit of doubt. The principle of benefit of doubt belongs exclusively to the Criminal Jurisprudence. The pristine doctrine of the benefit of doubt can be invoked when there is reasonable doubt regarding the guilt of the Page 42 of 54 HC-NIC Page 42 of 54 Created On Sat Aug 27 06:23:17 IST 2016 C/SCA/15902/2015 CAV JUDGMENT accused. It is the reasonable doubt which a conscientious judicial mind entertains on a conspectus of the entire evidence that the accused might not have committed the offence, which affords benefit to the accused at the end of the criminal trial. Like in the present case, this Court, while allowing the criminal appeals, took the view so far as Shri Babubhai Ishwarlal Patel is concerned that it was highly doubtful whether the brother of Babubhai Patel had accepted the bribe amount at the instance of Babubhai Patel since the bribe amount was recovered from the brother of Shri Babubhai Ishwarlal Patel. As there was no clear and cogent evidence in this regard, the learned Single Judge of this Court entertained a doubt in his mind and once a reasonable doubt arises in the mind of the Judge, the benefit ordinarily should go to the accused. It is equally well settled that the benefit of doubt is not a legal dosage to be administered at every segment of the evidence, but an advantage to be afforded to the accused at the final end after consideration of the entire evidence, if the Judge conscientiously and reasonably entertains doubt regarding the guilt of the accused. It is nearly impossible in any criminal trial to prove all the elements with scientific precision. A Criminal Court could be convinced of the guilt only beyond the range of a reasonable doubt. In my view, the expression reasonable doubt is incapable of a precise definition. The modern thinking is in favour of the view that the proof beyond a reasonable doubt is the same, as the proof which affords moral certainty to the Judge. [See : State of Haryana v. Bhagirath, AIR 1999 SC 2005]
46. Francis Wharton, a celebrated writer on the Criminal Law in the United States has quoted from judicial pronouncements in his book on "Wharton's Criminal Evidence" as follows:
"It is difficult to define the phrase "reasonable doubt." However, in all criminal cases a careful explanation or the term ought to be given. A definition often quoted or followed is that given by Chief Justice Shaw in the Webster Case. He says : It is not mere possible doubt, because everything relating to human affairs and depending upon moral evidence is open to some possible or imaginary doubt. It is that state of the case which, Page 43 of 54 HC-NIC Page 43 of 54 Created On Sat Aug 27 06:23:17 IST 2016 C/SCA/15902/2015 CAV JUDGMENT after the entire comparison and consideration of all the evidence, leaves the minds of the jurors in that consideration that they cannot say they feel an abiding conviction to a moral certainty of the truth of the charge."
47. In the treatise on "The Law of Criminal Evidence"
authored by HC Underhill, it is stated:
"The doubt to be reasonable must be such a one as an honest, sensible and fair-minded man might, with reason, entertain consistent with a conscientious desire to ascertain the truth. An honestly entertained doubt of guilt is a reasonable doubt. A vague conjecture or an inference of the possibility of the innocence of the accused is not a reaosnable doubt. A reasonable doubt is one which arises from a consideration of all the evidence in a fair and reasonable way. There must be a candid consideration of all the evidence and if, after this candid consideration is had by the jurors, there remains in the minds a conviction of the guilt of the accused, then there is no room for a reasonable doubt."
48. In the case of the Deputy Inspector General of Police v. S. Samuthiram [2013 (1) SCC 598], the Supreme Court made the following observations as under:
"The meaning of the expression 'honourable acquittal' came up for consideration before this Court in Management of Reserve Bank of India, New Delhi v. Bhopal Singh Panchal (1994) 1 SCC 541 :
(AIR 1994 SC 552 : 1993 AIR SCW 4044). 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 Page 44 of 54 HC-NIC Page 44 of 54 Created On Sat Aug 27 06:23:17 IST 2016 C/SCA/15902/2015 CAV JUDGMENT 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."
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 44, this Court quoted with approval the views expressed by Lord Williams, J. in (1934) 61 ILR Cal. 168 : (AIR 1933 Cal 800) 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'."
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 by way of disciplinary proceeding is entirely different. In a criminal case, the onus of establishing the guilt of the accused is on the Page 45 of 54 HC-NIC Page 45 of 54 Created On Sat Aug 27 06:23:17 IST 2016 C/SCA/15902/2015 CAV JUDGMENT 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.
"We have also come across cases where the service rules provide that on registration of a criminal case, an employee can be kept under suspension and on acquittal by the criminal court, he be reinstated. In such cases, the reinstatement is automatic. There may be cases where the service rules provide in spite of domestic enquiry, if the criminal court acquits an employee honourably, he could be reinstated. 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. Such provisions are absent in the Tamil Nadu Service Rules."
49. A Full Bench of the Madras High Court in the case of Manikandan v. Chairman, Tamil Nadu Uniformed Services Recruitment Board [2008 (4) SLR 213] had the occasion to consider the effect of acquittal or discharge on benefit of doubt. In the said case, the amended Rule 14(b) of the Tamil Nadu Special Police Subordinate Rules was challenged as ultra vires. A learned Single of the Madras High Court sought a reference of the following issues to the Full Bench:
Page 46 of 54HC-NIC Page 46 of 54 Created On Sat Aug 27 06:23:17 IST 2016 C/SCA/15902/2015 CAV JUDGMENT "i. Whether the acquittal or discharge of a person in a criminal case on benefit of doubt would amount to a stigma on the life of a person so as to make him ineligible as per Rule 14(b), Explanation-1 of the Tamil Nadu Special Police Subordinate Rules?
ii. Whether the non-disclosure of involvement in a criminal case, which has ultimately ended in acquittal, but in some cases disclosed after acquittal, can be a ground for disqualifying the persons concerned from entering into the Government service?"
While answering the reference His Lordship A.P. Shah, J., made the following observations. In the Full Bench His Lordship F.M. Ibrahim Kalifulla (as His Lordship then was) was also a party:
"20. Having found that the amended Rule 14(b) cannot be assailed as ultra vires, let us now take up the first question referred to the Full Bench, viz., as to whether the acquittal or the discharge of a person on benefit of doubt would make a person ineligible for appointment to public service forever, by virtue of Explanation-1 under Clause (iv) of Rule 14(b) of the aforesaid Rules.
21. It is contended by the learned Senior Counsel appearing for the petitioners that the Code of Criminal Procedure recognises only one type of acquittal and that the Code does not create a dichotomy between what has come to be accepted in common parlance as "an honourable acquittal"
and "an acquittal on benefit of doubt".
22. The Code of Criminal Procedure, 1973, refers to "acquittal" under Sections 232, 235, 248, 255 and
300. The word "discharge" is used in the Code in Sections 227, 239 and 245. Section 227 enables a Court of Session to discharge an accused if upon consideration of the record of the case and the documents submitted, he considers that there is no Page 47 of 54 HC-NIC Page 47 of 54 Created On Sat Aug 27 06:23:17 IST 2016 C/SCA/15902/2015 CAV JUDGMENT sufficient ground for proceeding against the accused. Section 232 enables a Court of Sessions to order the acquittal of a person, if after taking the evidence for the prosecution, examining the accused and hearing the prosecution and the defence on the point, the Judge considers that there is no evidence to show that the accused committed the offence. Thus, discharge under Section 227 can be ordered before recording the evidence and the acquittal under Section 232 can be ordered after the evidence for the prosecution is recorded.
23. Similarly, Section 239 enables a Magistrate to discharge the accused, if after considering the police report and the documents sent along with it under Section 173, he considers the charge against the accused to be groundless. In cases instituted otherwise than on police report also, the Magistrate is entitled to discharge an accused, if after taking all the evidence as is referred to in Section 244, he considers that no case against the accused has been made out.
24. While the acquittal or discharge referred to in the above provisions, relate to a stage prior to the conclusion of the entire trial, the acquittal contemplated U/s. 248 and 255, by a Magistrate in a warrant case or summons case, is after trial.
25. Thus it is seen that the entire scheme of the Code of Criminal Procedure, 1973, speaks only of acquittal and not of an "honourable acquittal" or "acquittal on benefit of doubt". These concepts appear to have been developed by courts over the years. But there seems to be a reason for this.
26. Section 300 (1) of the Code prescribes that a person tried for an offence by a competent court and convicted or acquitted of such offence, shall not be liable to be tried for the same offence or on the same facts for any other offence which could have been charged against him in the same trial.
Page 48 of 54HC-NIC Page 48 of 54 Created On Sat Aug 27 06:23:17 IST 2016 C/SCA/15902/2015 CAV JUDGMENT However, the Explanation to Secion 300 of the Code makes it clear that the dismissal of a complaint or the discharge of an accused is not an acquittal for the purpose of Section 300. Therefore, the bar under Section 300(1) for a 2nd trial for the same offence or for a 2nd trial on the same facts for any other offence, may not be applicable in certain cases, where an accused is discharged.
27. The reason as to why the Code does not make a distinction between an acquittal on benefit of doubt and an honourable acquittal, is to ensure that no person shall be tried for a second time for the same offence for which he is tried and convicted or acquitted once. What is provided under Section 300(1) of the Code, is only a reassurance of the constitutional right guaranteed under Article 20(2). The principle behind this prescription under Section 300 of the Code is to avoid double jeopardy to a person. If the Code recognises such a distinction, it may make inroads into this concept of double jeopardy.
28. But the concept of double jeopardy, to some extent, is allergic to service law. In as many cases as one can think of, the Supreme Court has made it clear (i) that the imposition of a punishment and the denial of promotion did not amount to double jeopardy and (ii) that the conviction by a criminal Court and the disciplinary proceedings initiated either on the basis of conduct which led to the conviction or on pure questions of misconduct, did not amount to double jeopardy.
29. Since the concept of "acquittal is an acquittal", is an off shoot of the principle of double jeopardy underlying Section 300(1) of the Code, it cannot be imported into service law, where the principle of double jeopardy itself is looked down upon. Therefore, the Explanation 1 to Rule 14(b) of the impugned Rules, treating a person acquitted on benefit of doubt, as a person involved in a criminal case, is only in tune with well settled principles Page 49 of 54 HC-NIC Page 49 of 54 Created On Sat Aug 27 06:23:17 IST 2016 C/SCA/15902/2015 CAV JUDGMENT applicable to Service jurisprudence. A person discharged does not even have protection under Section 300 of the Code and hence such a person cannot assail the Explanation 1 to the impugned rule 14(b).
30. Therefore, we hold, in answer to the first issue referred to the Full Bench, that by virtue of Explanation 1 to clause (iv) of Rule 14 (b) of the Tamilnadu Special Police Subordinate Service Rules, a person acquitted on benefit of doubt or discharged in a criminal case, can still be considered as disqualified for selection to the police service of the State and that the same cannot be termed as illegal or unjustified."
50. In Commissioner of Police v. Mehar Singh [AIR 2013 SCC 2861], the Supreme Court made the following observations:
"20. We find no substance in the contention that by cancelling the respondents' candidature, the Screening Committee has overreached the judgments of the criminal court. We are aware that the question of co-relation between a criminal case and a departmental inquiry does not directly arise here, but, support can be drawn from the principles laid down by this Court in connection with it because the issue involved is somewhat identical namely whether to allow a person with doubtful integrity to work in the department. While the standard of proof in a criminal case is the proof beyond all reasonable doubt, the proof in a departmental proceeding is preponderance of probabilities. Quite often criminal cases end in acquittal because witnesses turn hostile. Such acquittals are not acquittals on merit. An acquittal based on benefit of doubt would not stand on par with a clean acquittal on merit after a full fledged trial, where there is no indication of the witnesses being won over. In R.P. Kapur v. Union of India [AIR 1964 SC 787] this Court has taken a view that departmental proceedings can proceed even Page 50 of 54 HC-NIC Page 50 of 54 Created On Sat Aug 27 06:23:17 IST 2016 C/SCA/15902/2015 CAV JUDGMENT though a person is acquitted when the acquittal is other than honourable.
21. The expression 'honourable acquittal' was considered by this Court in S. Samuthiram (AIR 2013 SC 14 : 2012 AIR SCW 6484). In that case this Court was concerned with a situation where disciplinary proceedings were initiated against a police officer. Criminal case was pending against him under Section 509 of the IPC and under Section 4 of the Eve-teasing Act. He was acquitted in that case because of the non-examination of key witnesses. There was a serious flaw in the conduct of the criminal case. Two material witnesses turned hostile. Referring to the judgment of this Court in Management of Reserve Bank of India, New Delhi v. Bhopal Singh Panchal [(1994) 1 SCC 541], where in somewhat similar fact situation, this Court upheld a bank's action of refusing to reinstate an employee in service on the ground that in the criminal case he was acquitted by giving him benefit of doubt and, therefore, it was not an honourable acquittal, this Court held that the High Court was not justified in setting aside the punishment imposed in departmental proceedings. This Court observed that the expressions 'honourable acquittal', 'acquitted of blame' and 'fully exonerated' are unknown to the Criminal Procedure Code or the Penal Code. They are coined by judicial pronouncements. It is difficult to define what is meant by the expression 'honourably acquitted'. This Court expressed that when the accused is acquitted after full consideration of prosecution case and the prosecution miserably fails to prove the charges levelled against the accused, it can possibly be said that the accused was honourably acquitted. In light of above, we are of the opinion that since the purpose of departmental proceedings is to keep persons, who are guilty of serious misconduct or dereliction of duty or who are guilty of grave cases of moral turpitude, out of the department, if found necessary, because they pollute the department, surely the above principles will apply with more vigour at the point of entry of a person in the police department i.e. at the time of Page 51 of 54 HC-NIC Page 51 of 54 Created On Sat Aug 27 06:23:17 IST 2016 C/SCA/15902/2015 CAV JUDGMENT recruitment. If it is found by the Screening Committee that the person against whom a serious case involving moral turpitude is registered is discharged on technical grounds or is acquitted of the same charge but the acquittal is not honourable, the Screening Committee would be entitled to cancel his candidature. Stricter norms need to be applied while appointing persons in a disciplinary force because public interest is involved in it."
51. Thus, the ratio so far as the Division Bench decision of this Court in Ramsinhji (supra) is concerned, could be said to have stood diluted by passage of time to a considerable extent, and more particularly, in view of the Supreme Court decisions which I have referred to and relied upon. In such circumstances, it is difficult for me to hold that so far as Shri Babubhai Ishwarlal Patel is concerned, he is also entitled to full back wages with all the consequential benefits in that regard."
Thus, in view of the aforesaid decision, it is difficult for me to hold that the writ-applicant could be said to have been wholly exonerated in view of the judgment and order of acquittal passed by this Court in the Criminal Appeal No.92 of 2003. As observed earlier, this Court extended the benefit of doubt in favour of the accused, i.e. the writ-applicant, and accordingly the appeal was allowed and the conviction was set-aside.
Even if I have to grant any relief to the writ-applicant in terms of Clause (3) of Rule 70, it would be difficult at this stage because of the appeal pending before the Supreme Court filed by the State of Gujarat. This aspect has been well taken care of by the Division Bench of this Court in the case of D.M.Gohil (supra) referred to above.
Having regard to all the relevant aspects of the matter, Page 52 of 54 HC-NIC Page 52 of 54 Created On Sat Aug 27 06:23:17 IST 2016 C/SCA/15902/2015 CAV JUDGMENT the question is, what relief should be granted to the writ- applicant at this stage. If the respondents are directed to pay full pay and allowances for the period between the date of the order of dismissal and the date of the superannuation, and ultimately if the State of Gujarat succeeds in the appeal pending before the Supreme Court, the same would lead to an anomalous situation. It would be thereafter very difficult for the State Government to recover the amount already paid to the writ-applicant.
In fact, I should have closed this judgment without going into any other issue except the fact that an appeal is pending before the Supreme Court, but taking into consideration that even otherwise the rights of the writ-applicant will ultimately be governed by the disposal of the appeal by the Supreme Court in one way or the other, and if the appeal is dismissed and the judgment and order of acquittal passed by this Court is affirmed, then the writ-applicant would be entitled to the benefits accordingly, i.e. having regard to Clause (3) of Rule 70 and the Pension Rules governing the pensionary benefits.
For the present, I am of the view that atleast the provisional pension and provisional gratuity should be fixed and paid to the writ-applicant in accordance with the GCSR Pension Rules, 2002. No further relief is being granted at this stage. It is needless to clarify that ultimately if the appeal is dismissed by the Supreme Court, then the writ-applicant shall be paid 50% of the salary and other allowances for the period between the date of the order of dismissal and the date of attaining the superannuation including other consequential benefits.
Page 53 of 54HC-NIC Page 53 of 54 Created On Sat Aug 27 06:23:17 IST 2016 C/SCA/15902/2015 CAV JUDGMENT This writ-application is disposed of with a direction to the State Government to fix the provisional pension and the provisional gratuity within a period of two months from the date of the receipt of the order and pay the requisite amount with arrears.
(J.B.PARDIWALA, J.) MOIN Page 54 of 54 HC-NIC Page 54 of 54 Created On Sat Aug 27 06:23:17 IST 2016