Punjab-Haryana High Court
Punjab State Through Its Collector And ... vs Ex. Constable Gulzar Singh on 1 February, 2012
Author: G. S. Sandhawalia
Bench: G.S.Sandhawalia
RSA No.2394 of 2010 -1-
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IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
RSA No.2394 of 2010(O&M)
Date of decision: 1.2.2012
Punjab State through its Collector and another ....Appellants
Vs.
Ex. Constable Gulzar Singh ....Respondent
CORAM: HON'BLE MR.JUSTICE G.S.SANDHAWALIA
Present: Mr. Yatinder Sharma, Deputy Advocate General, Punjab
for the appellant.
Mr. G.L.Bajaj, Advocate for the respondent.
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G. S. SANDHAWALIA, J.
1. The present appeal has been filed by the State of Punjab which is aggrieved against the judgments and decrees of the Courts below which had set aside the dismissal order of the plaintiff and held him entitled to be reinstated in service along with arrears of pay and seniority from the date of his dismissal till the actual date of reinstatement in service.
2. The suit filed by the plaintiff Ex. Constable Gulzar Singh sought to challenge the order dated 14.7.2003 whereby he was dismissed from service by the Senior Superintendent of Police, Ferozepur and the subsequent order dated 20.12.2003 whereby his appeal was rejected by the Deputy Inspector General of Police, Ferozepur Range, Ferozepur. The case of the plaintiff was that he was a permanent regular member of the Police and recruited in the Police Department on 8.8.1979 and having a long length of service. It is alleged that on 18.10.2001 one Harbhajan Singh ASI held a Naka near Bikaneri Chungi, Ferozepur and during the RSA No.2394 of 2010 -2- **** said Nakabandi, the plaintiff was apprehended on the basis of suspicion when he was coming on his scooter and on search 19 Kgs. of poppy husk was recovered from him lying on the floor of the scooter between the feet of the plaintiff and accordingly FIR No.85 dated 18.10.2011 under Sections 15/61/85 of the N.D.P.S.Act was registered at Police Station, Ferozepur City. It was accordingly alleged that on completion of departmental enquiry, the plaintiff was found guilty and awarded punishment of dismissal from service. On the same day another order was passed against the plaintiff whereby his 5 annual increments were forfeited with permanent effect and the period of absence was also treated as no work no pay by way of punishment. Both the orders being interconnected were passed on the basis of the registration of the above said case. The plaintiff filed two appeals before the Deputy Inspector General of Police, Ferozepur Range, Ferozepur and the Appellate Authority who dismissed the appeals vide orders dated 20.12.2003 and 30.12.2003 respectively. The said orders were accordingly challenged on the ground that the plaintiff was wrongly made the victim of double jeopardy by passing two separate orders for one lapse and they were interconnected with each other and the authority should have waited for the decision of the criminal Court and thereafter, the plaintiff should have been punished. No prior sanction from the District Magistrate was obtained before holding the enquiry. The proper procedure had not been followed by the punishing authority while holding the departmental enquiry and no prior intimation was given with regard to screening of back service record of the plaintiff. The additional ground was taken that case was still to be tried by the criminal Court and since no report of Chemical Examiner had been called and the long length of service of the plaintiff which was 24/25 years had not been taken into RSA No.2394 of 2010 -3- **** consideration and the absence of the plaintiff was beyond his control as he remained in judicial custody and did not amount to intentional absence and the suspension period could not be treated as absence period. Various other grounds were also taken regarding supply of the copies of various documents and witnesses were examined without administering oath. Accordingly, it is prayed that said orders be declared null and void and the consequential relief of reinstatement of the plaintiff in service along with arrears of pay, seniority etc. be given along with interest at the rate of 18% per annum.
3. The written statement filed by the defendants and took the plea that the departmental remedies had not been exhausted and since the plaintiff was involved in a serious case under the N.D.P.S. Act, therefore, he was liable to be dismissed from service being a member of a disciplined force. The allegations of non following the proper procedure was denied and it was pleaded that a proper procedure had been followed and show cause notice and notice dated 7.12.2002 and 3.1.2003 respectively had been served upon the plaintiff. After taking into consideration the pleadings, ,the following issues were framed by the trial Court:-
"1. Whether the order No.3952-61 dated 14.7.2003 read with 19472-73 dated 20.12.2003 passed by DIG Police is illegal null and void against the principles of natural justice and not binding qua the rights of the plaintiff?OPP
2. Whether plaintiff is further entitled to relief of reinstatement in service and arrears of pay along with 18% per annum interest?OPP
3. Whether no cause of action accrued to plaintiff to file RSA No.2394 of 2010 -4- **** present suit?OPP
4) Whether suit of the plaintiff having not exhausted departmental remedies is not maintainable?OPP
5) Relief"
4. The plaintiff examined himself and also brought on record Ex. P5, the certified copy of the judgment dated 7.7.2005 whereby he was acquitted of the said charge by the Special Judge, Ferozepur on the ground that prosecution had miserably failed to prove the guilt of the accused beyond reasonable doubt and by giving benefit of doubt, he was acquitted. The trial Court after examining the judgment of the Criminal Court came to the conclusion that since the plaintiff had been acquitted, he could not be departmentally punished unless his case fell under the exceptions provided under Rule 16.3 of the Punjab Police Rules. It was also noticed that no appeal or revision had been preferred against the order of acquittal by the State. Accordingly, it was held that order of punishment by way of dismissal and the Appellate orders were not binding upon the rights of the plaintiff and he was entitled to reinstatement in service and arrears of pay and seniority etc. from the date of his dismissal from service till actual date of reinstatement.
5. The State preferred an appeal before the Lower Appellate Court and came to the conclusion that the trial Court has rightly declared the orders to be illegal, null and void while placing reliance upon the judgment of the Hon'ble Supreme Court in Capt M. Paul Anthony v. Bharat Gold Mines Ltd and anr 1999(2) RSJ 318 to hold that it would have been desirable to stay the domestic proceedings till the pendency of the criminal proceedings. Accordingly, while noticing the judgment of this Court in Shashi Kumar Vs. Uttri Haryana Bijli Vitran Nigam and RSA No.2394 of 2010 -5- **** another 2005(1) RSJ 718 that after acquittal an employee is entitled to full back wages and other benefits. The appeal of the State was accordingly dismissed. Resultantly, the present Regular Second Appeal has been filed wherein the question of law as to whether the plaintiff was entitled to arrears of pay and seniority from the date of dismissal in view of the acquittal by the trial Court by giving benefit of doubt was legal or not.
6. That upon notice, the respondents appeared and placed reliance upon the judgment of the Hon'ble Supreme Court in G.M.Tank Vs. State of Gujrat and another 2006(3) RSJ 554 which was followed by this Court in Khurshid Ahmad Vs. State of Haryana and others 2009(8) SLR
447. The State also pressed into action the plea that the plaintiff was not entitled for back wages for the period he had not worked on the principle of 'no work no pay' and placed reliance upon Krishankant Raghunath Bibhavnekar Vs. State of Maharashtra and others (1997) 3 Supreme Court Cases 636.
7. Faced with the situation with regard to non entitlement of back wages, counsel for the respondent-plaintiff had sought time that his client was willing to forego the back wages provided notional benefits of seniority etc. arising out of the judgments and decrees of the Courts below was given to him. Accordingly, he has given the following statement:-
"Stated that I am agreed if the back wages for the period during which I did not serve the department are not paid to me and I have no objection if only notional benefits be given to me."
8. In G.M.Tank's case (supra) which was a case arising out of the Prevention of Corruption Act, the Special Judge acquitted the appellant on the failure of the prosecution to prove the charges and on the RSA No.2394 of 2010 -6- **** departmental side, he had been dismissed after the departmental enquiry on finding him guilty of the charge of illegally accumulating the excess income. The Hon'ble Supreme Court after considering the facts framed the question of law that whether the acquittal on merits by the Special Judge ipso facto would absolve the appellant from the liability in the departmental proceedings once the criminal proceedings were on the same facts and set of charges. After taking into account various judgments, it has been held by the Hon'ble Supreme Court that the proceedings in the departmental enquiry cannot be allowed to stand once the person had been acquitted by the Criminal Court. Relevant paragraphs of the judgment are reproduced below:-
"31. The judgments relied on by the learned counsel appearing for the respondents are not distinguishable on facts and on law. In this case, the departmental proceedings and the criminal case are based on identical and similar set of facts and the charge in a Departmental case against the appellant and the charge before the Criminal Court are one and the same. It is true that the nature of charge in the departmental proceedings and in the criminal case is grave. The nature of the case launched against the appellant on the basis of evidence and material collected against him during enquiry and investigation and as reflected in the charge sheet, factors mentioned are one and the same. In other words, charges, evidence, witnesses and circumstances are one and the same. In the present case, criminal and departmental proceedings have already noticed or granted on the same set of facts namely, raid conducted at the appellant's residence, recovery RSA No.2394 of 2010 -7- **** of articles therefrom. The Investigating Officer, Mr. V.B. Raval and other departmental witnesses were the only witnesses examined by the Enquiry Officer who by relying upon their statement came to the conclusion that the charges were established against the appellant. The same witnesses were examined in the criminal case and the criminal court on the examination came to the conclusion that the prosecution has not proved the guilt alleged against the appellant beyond any reasonable doubt and acquitted the appellant by his judicial pronouncement with the finding that the charge has not been proved. It is also to be noticed the judicial pronouncement was made after a regular trial and on hot contest. Under these circumstances, it would be unjust and unfair and rather oppressive to allow the findings recorded in the departmental proceedings to stand.
32. In our opinion, such facts and evidence in the department as well as criminal proceedings were the same without there being any iota of difference, the appellant should succeed. The distinction which is usually proved between the departmental and criminal proceedings on the basis of the approach and burden of proof would not be applicable in the instant case. Though finding recorded in the domestic enquiry was found to be valid by the Courts below, when there was an honourable acquittal of the employee during the pendency of the proceedings challenging the dismissal, the same requires to be taken note of and the decision in Paul Anthony's case (supra) will apply. We, therefore, hold that the appeal filed by RSA No.2394 of 2010 -8- **** the appellant deserves to be allowed."
9. The Apex Court also set aside the order of dismissal but since the appellant in that case had been retired, it was held that no back wages would be paid but he would be entitled to pension. This Court in Khurshid Ahmad's case (supra) while examining the facts of the case of a Constable working in the Police Department who was accused of offence of rape and had been dismissed from service, allowed the writ petition of the employee since the said person had been acquitted. Rule 16.3 of the Punjab Police Rules was also taken into consideration to hold that the police officer cannot be punished departmentally on the same charge where he has been acquitted by the Criminal Court and until the charge has failed on technical ground or the prosecution witnesses had been won over. Rule 16.3 of the Punjab Police Rules reads as under:-
"16.3 Action following on a judicial acquittal:-
(1)When a Police Officer has been tried and acquitted by a criminal court he shall not be punished departmentally on the same charge or on a different charge upon the evidence cited in the criminal case whether actually led or not, unless:-
(a) the criminal charge has failed on technical grounds; or
(b) in the opinion of the Court or of the Superintendent of Police, the prosecution witnesses have been won over; or
(c) the Court has held in its judgment that an offence was actually committed and that suspicion rests upon the police officer concerned; or
(d) the evidence cited in the criminal case discloses facts unconnected with the charge before the court which justify departmental proceedings on a different charge; or RSA No.2394 of 2010 -9- ****
(e) additional evidence admissible under rule 16.25 (1) in departmental proceedings is available.
(2) Departmental proceedings admissible under sub-rule (1) may be instituted against Lower Subordinates by the order of the Superintendent of Police but may be taken against Upper Subordinates only with the sanction of the Deputy Inspector General of Police and a police officer against whom such action is admissible shall not be deemed to have been honourably acquitted for the purpose of Rule 7.3 of the Civil Services Rules (Punjab), Volume I, Part I."
10. Counsel for the state contended that acquittal was on the ground of benefit of doubt by the Special Judge and, therefore, the said judgment and decree were not justified. The said contention cannot be accepted since a Division Bench of this Court in Shashi Kumar's case (supra) has gone on to hold that there is no concept of honourable acquittal in the Code of Criminal Procedure and that in the absence of the same, words fully exonerated or honourable acquittal could not be used. The department could not deny the benefit as once the prosecution had failed to establish its case, the Criminal Court was bound to acquit the accused. In the said case, the employee was put back into service with full back wages which was being denied to the employee on his acquittal on the ground that the Criminal Court had used the term acquittal by giving benefit of doubt.
11. Keeping in view the settled law that on acquittal on the criminal side, the finding in the departmental proceedings on the same set of charges cannot be allowed to stand. No fault can be found in the judgments and decrees of the Courts below which allowed the suit of the RSA No.2394 of 2010 -10- **** plaintiff. However, as mentioned above, the plaintiff has agreed to forego his claim for back wages, therefore, the judgments and decrees of the Courts below are modified to the extent that the plaintiff is entitled to reinstatement in service alongwith seniority and other notional benefits from the date of his dismissal. It is made clear that he is not entitled for the back wages from the date of his dismissal till the actual date of his reinstatement in service. It is open to the authority to pass appropriate orders regarding the period of suspension as per relevant rules.
(G.S.SANDHAWALIA) JUDGE 1.2.2012 Pka