Himachal Pradesh High Court
Sanjeev Kumar Sharma vs State Of Himachal Pradesh & Another on 22 September, 2023
Author: Ajay Mohan Goel
Bench: Ajay Mohan Goel
.
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWPOA No.3183 of 2019 Reserved on: 19.08.2023 Decided on: 22.09.2023 Sanjeev Kumar Sharma ...Petitioner.
of
Versus
State of Himachal Pradesh & another
rt ... Respondents.
Coram
Hon'ble Mr. Justice Ajay Mohan Goel, Judge.
Whether approved for reporting?1 Yes _____________________________________________________ For the petitioner: M/s Onkar Jairath and Shubham Sood, Advocates.
For the respondents: Mr.Pranay Pratap Singh, Additional Advocate General, with M/s Arsh Rattan and Sidharth Jalta, Deputy Advocate Generals.
Ajay Mohan Goel, Judge By way of this petition, the petitioner has, inter alia, prayed for the following reliefs: "i) For issuing a writ of Certiorari to the Respondents for quashing annexures P9 and P11 whereby the petitioner was suspended and thereafter removed from his services.
(i) (a) For issuing a writ of Certiorari to the Respondents for quashing annexures P17.
(ii) For issuing a writ of Mandamus to the Respondents for reinstating the Petitioner into service along with all consequential service benefits."
2. The petitioner was appointed as a Lecturer (School 1 Whether reporters of the local papers may be allowed to see the judgment?
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Cadre) in the Education Department in the year 1997. While he was serving in Government Senior Secondary School Bharoli Kohala, District Kangra, H.P., FIR No.20/1998, dated 07.08.1998 was registered against him under Section 376 of the Indian Penal Code of read with Section 18 of the Scheduled Caste & Scheduled Tribe (Prevention of Atrocities) Act, 1989. Upon lodging of this FIR, the rt petitioner was placed under suspension vide order dated 02.11.1998 (Annexure P9). Vide Memorandum dated 04.01.1999 (Annexure P
11), respondent No.2 terminated the services of the petitioner by invoking subrule (1) of the Rule 5 of the Central Civil Services (Temporary Service) Rules, 1965. The trial in the FIR registered against the petitioner led to his conviction and he was sentenced to undergo rigorous imprisonment of seven years and to pay a fine of Rs.20,000/ for committing rape on the prosecutrix. The appeal filed by the petitioner against the judgment of conviction was allowed by this Court. The judgment of acquittal passed in Criminal Appeal No.14 of 2003, titled Sanjeev Kumar vs. State of H.P. dated 15.06.2010, is appended with the petition as Annexure P15. After his acquittal, the petitioner made a representation to the competent authority for his reinstatement in service and vide impugned order (Annexure P17), the same was rejected by respondent no.1.
3. I have heard learned counsel for the petitioner as well as learned Additional Advocate General and have also carefully gone ::: Downloaded on - 27/09/2023 20:33:23 :::CIS 3 .
through the pleadings as well as documents appended therewith.
4. A perusal of order dated 20.10.2011 demonstrates that rejection of the representation of the petitioner by the Authority is on the ground that acquittal in a criminal case has no effect on the of departmental proceedings, as both have different areas of consideration and further the rt official has not been honourably acquitted by the Criminal Court, but the order was based on technical grounds, therefore, the acquittal does not automatically give right to the applicant to reinstatement in service. It is mentioned in this order that after his acquittal, the petitioner made a representation to the Director of Higher Education for his reinstatement in service retrospectively, which was rejected. In order to clarify this fact, on 04.08.2023, this Court had passed the following order: "Heard for some time.
A perusal of the order passed by the Appellate Authority demonstrates that there is a reference therein of an order passed by the Director, in terms whereof, the representation filed by the petitioner after his acquittal, was rejected by the said authority. Learned Deputy Advocate General is directed to produce the relevant record including the order passed by the Director, which stands referred to in the order passed by the Appellate Authority on the next date of hearing.
List on 18.08.2023."
This was followed by the following order being passed by this Court ::: Downloaded on - 27/09/2023 20:33:23 :::CIS 4 .
on 19.08.2023: "In terms of the last order, learned Deputy Advocate General has produced the relevant record. He was specifically called upon to show to the Court the rejection of of the representation of the petitioner by the Director of Higher Education, which finds mentioned in the order passed by the Secretary Higher Education dated rt 20.10.2011, i.e. in the 1st para of the 2nd page of the said order. Learned Deputy Advocate General has fairly submitted before the Court on the basis of the record, that the only order passed by the Director of Higher Education is the one dated 4th January, 1999 and there is no such order in terms whereof the representation of the petitioner has been rejected as stands referred to in the second page of this order. This fact is taken on record. Arguments heard. Judgment reserved."
5. Be that as it may, the record demonstrates that the services of the petitioner were terminated vide Annexure P11, dated 04.01.1999. Though he made a representation against the same, which was rejected by respondent No.2 on 30.01.1999 (Annexure P
12), but the said order, i.e. Annexure P11, was not challenged before the Court by the petitioner on the ground that his services could not have been terminated under the provisions of the Central Civil Services (Temporary Service) Rules, 1965, as was argued before the Court by learned counsel for the petitioner.
6. Therefore, this Court is not going to adjudicate on the ::: Downloaded on - 27/09/2023 20:33:23 :::CIS 5 .
validity of Memorandum dated 04.01.1999, as the same was not assailed by the petitioner before the Court within reasonable time and challenge thereto has been made only by way of this writ petition, which was filed in the year 2011. However, the fact of the of matter still remains that what led to the issuance of Memorandum dated 04.01.1999 was the registration of the FIR against the rt petitioner, trial whereof initially led to his conviction and thereafter, in an appeal filed against the said conviction, he was acquitted by this Court.
7. No doubt, the parameters which determines the course of departmental proceedings are different as compared to the criminal proceedings, but where the foundation of the departmental proceedings and criminal proceedings is the same, the final outcome in the criminal proceedings, if an incumbent has been terminated from service, does have some bearing, taking into consideration the facts of the case.
8. Herein, it is not in dispute that the services of the petitioner were terminated on 04.01.1999, on account of the FIR having been lodged against him. The petitioner was convicted by the learned Trial Court in the year 2003 and the appeal filed against said conviction was allowed by this Court on 15.06.2010. The representation of the petitioner for reinstatement in service was rejected by respondent No.1 on 20.10.2011 on the reasoning already ::: Downloaded on - 27/09/2023 20:33:23 :::CIS 6 .
mentioned hereinabove.
9. Having carefully gone through the judgment passed by this Court in Criminal Appeal No.14 of 2003, which was preferred by the petitioner against the judgment of his conviction, this Court has of no hesitation in holding that the observations made in order dated 20.10.2011, Annexure P17, that the petitioner was not honorably rt acquitted, are incorrect.
10. A perusal of the judgment passed in Criminal Appeal demonstrates that this Court acquitted the petitioner on merit. This is apparent and evident from the language of the judgment itself. In Para16 of the judgment, this Court after taking into consideration the evidence on record, went on to hold that the reason for foisting a false case upon the petitioner appears to be obvious, as the prosecutrix might have developed liking for the appellant, because she wanted to marry with him. The petitioner was transferred from that station and the prosecutrix concocted a case inconnivance with the relatives to get herself married with him. Para16 of the aforesaid judgment is quoted hereinbelow for clarity: "16. Except the aforesaid evidence, there is no other evidence with respect to the incident and all the statements are varied and have marked difference with respect to the incident in question. It is also important to note that Suresh Kumar, who used to reside in the same building and used to teach prosecutrix and other students was present in his room, he was not examined ::: Downloaded on - 27/09/2023 20:33:23 :::CIS 7 .
as witness to lend strength to the case of the prosecution. In view of the above, statement of the prosecutrix has lost its credibility. Reason for foisting of a false upon the appellant appears to be obvious that the of prosecutrix might have developed liking for the appellant and she wanted to marry with him. He was transferred from that Station, thus concocted the present case in rt connivance with her relative to get her married with him."
Similarly, Paras19 to 23 of the judgment of this Court are quoted hereinbelow: "19. Another piece of evidence is the statement of the doctor PW16 Daljit Kaur. On her medical examination doctor did not find anything which could supply any evidence of having committed rape with the prosecutrix. According to doctor, it could only be said that in view of the medical examination, intercourse had taken place in the past because hymen was found absent and carunculae myrtiformes were found present. In her crossexamination, she particularly stated that the prosecutrix told her that sexual intercourse had been committed with her consent.
20. The mother of the prosecutrix stated to the doctor that at the time of alleged incident, she was aged about 16 years. 21. Her mother PW2 Sanam Dassi stated that date of birth was got recorded by her husband in the Panchayat. She pertinently stated that prosecutrix was got admitted in the School by her 12 years ago from the date of her examination in the Court on 19.9.2002 which comes to the year 1990 when she was stated to be six ::: Downloaded on - 27/09/2023 20:33:23 :::CIS 8 .
years of age. Thus her age on the date of the alleged incident comes more than 16 years and according to the report of the Radiologist it could be of even 16 ½ years, which is the age of her discretion.
of
22. In view of the aforesaid statement with respect to the age of the prosecutrix, and in any case the prosecutrix being a consenting party, as stated by the rt doctor, the marked delay in lodging the FIR and also the varied version about the incident by the witnesses make the entire case of the prosecution a suspect and in view of the this, the case of the prosecution, especially statement of the prosecutrix did not inspire confidence with respect to the offence in question.
23. Consequently, the appeal is allowed and the judgment of conviction and sentence passed by the learned trial Court is set aside."
A perusal of the findings returned by this Court leave no room for any doubt whatsoever that the petitioner was honorably acquitted by this Court by setting aside the judgment of conviction and the acquittal was not on technical grounds, as has been held by the Competent Authority, which rejected the representation of the petitioner
11. Hon'ble Supreme Court in series of judgments has been pleased to observe that the expressions "honourable acquittal", "acquitted of blame", "fully exonerated" are unknown to the Code of Criminal Procedure or the Penal Code and the are coined by judicial pronouncements and it is difficult to define what is meant by the ::: Downloaded on - 27/09/2023 20:33:23 :::CIS 9 .
expression "honourably acquitted". Hon'ble Apex Court has observed that when the accused is acquitted after full consideration of the prosecution case and the prosecution miserably failed to prove the charges levelled against the accused, it can possibly be said that the of accused was honourably acquitted.
12. Hon'ble Supreme Court in Deputy Inspector General rt of Police and Another vs. S. Samuthiram, (2013) 1 Supreme Court Cases 598 on the expression "honorable acquittal" has held as under: "24. The meaning of the expression 'honourable acquittal' came up for consideration before this Court in Management of Reserve Bank of India, New Delhi vs. Bhopal Singh Panchal (1994) 1 SCC 541. In that case, this Court has considered the impact of Regulation 46(4) dealing with honourable acquittal by a criminal court on the disciplinary proceedings. In that context, this Court held that the mere acquittal does not entitle an employee to reinstatement in service, the acquittal, it was held, has to be honourable. The expressions 'honourable acquittal', 'acquitted of blame', 'fully exonerated' are unknown to the Code of Criminal Procedure or the Penal Code, which are coined by judicial pronouncements. It is difficult to define precisely what is meant by the expression 'honourably acquitted'. When the accused is acquitted after full consideration of prosecution evidence and that the prosecution had miserably failed to prove the charges levelled against the accused, it can possibly be ::: Downloaded on - 27/09/2023 20:33:23 :::CIS 10 .
said that the accused was honourably acquitted.
25. In R.P. Kapoor v. Union of India, AIR 1964 SC 787, it was held even in the case of acquittal, departmental proceedings may follow where the acquittal is other than honourable. In State of Assam and another v.
of Raghava Rajgopalachari reported in 1972 SLR 45, this Court quoted with approval the views expressed by rt Lord Williams, J. in (1934) 61 ILR Cal. 168 which is as follows:
"The expression "honourably acquitted" is one which is unknown to court of justice. Apparently it is a form of order used in courts martial and other extra judicial tribunals. We said in our judgment that we accepted the explanation given by the appellant believed it to be true and considered that it ought to have been accepted by the Government authorities and by the magistrate.
Further, we decided that the appellant had not misappropriated the monies referred to in the charge. It is thus clear that the effect of our judgment was that the appellant was acquitted as fully and completely as it was possible for him to be acquitted. Presumably, this is equivalent to what Government authorities term 'honourably acquitted'".
26. As we have already indicated, in the absence of any provision in the service rule for reinstatement, if an employee is honourably acquitted by a Criminal Court, no right is conferred on the employee to claim any benefit including reinstatement. Reason is that the standard of proof required for holding a person guilty ::: Downloaded on - 27/09/2023 20:33:23 :::CIS 11 .
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 prosecution and if it fails to establish of 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 rt court is not required in a disciplinary proceedings and preponderance of probabilities is sufficient. There may be cases where a person is acquitted for technical reasons or the prosecution giving up other witnesses since few of the other witnesses turned hostile etc. In the case on hand the prosecution did not take steps to examine many of the crucial witnesses on the ground that the complainant and his wife turned hostile. The court, therefore, acquitted the accused giving the benefit of doubt. We are not prepared to say in the instant case, the respondent was honourably acquitted by the criminal court and even if it is so, he is not entitled to claim reinstatement since the Tamil Nadu Service Rules do not provide so."
13. Hon'ble Supreme Court in Imtiyaz Ahmad Malla vs. The State of Jammu and Kashmir and Others, 2023 Live Law (SC) 150, after referring to its earlier judgments, on the expression "honorable acquittal" went on to hold as under: "11. The expression "honourable acquittal" had also come up for consideration in other cases namely, Management of Reserve Bank of India, New Delhi Vs. ::: Downloaded on - 27/09/2023 20:33:23 :::CIS 12 .
Bhopal Singh Panchal3 ; and in R.P. Kapur Vs. Union of India and Another4 whereby it was held inter alia that the mere acquittal does not entitle an employee to the reinstatement 3 (1994) 1 SCC 541 4 AIR 1964 SC 787 5 of in service. The acquittal, it was held, has to be honourable. As such, the expressions "honourable acquittal", "acquitted of blame", "fully exonerated" are rt unknown to the Code of Criminal Procedure or the Penal Code, and it is difficult to define precisely what is meant by expressions "honourable acquittal".
12. In Pradeep Kumar's case (supra) also it was reiterated that if a person is acquitted or discharged, it cannot obviously be inferred that he was falsely involved, or he had no criminal antecedents. The precise observations made therein are reproduced hereunder:
"10. The acquittal in a criminal case is not conclusive of the suitability of the candidates in the post concerned. If a person is acquitted or discharged, it cannot always be inferred that he was falsely involved or he had no criminal antecedents. Unless it is an honourable acquittal, the candidate cannot claim the benefit of the case. What is honourable acquittal, was considered by this Court in Inspector General of Police v. S. Samuthiram [Inspector General of Police v. S. Samuthiram, (2013) 1 SCC 598 : (2013) 1 SCC ( Cri) 566 : (2013) 1 SCC (L&S) 229] , in which this Court held as under: (SCC p. 609, para 24) "24. The meaning of the expression "honourable acquittal" came up for consideration before this Court in RBI v. Bhopal Singh Panchal [RBI v. Bhopal Singh ::: Downloaded on - 27/09/2023 20:33:23 :::CIS 13 .
Panchal, (1994) 1 SCC 541 : 1994 SCC (L&S) 594] . In that case, this Court has considered the impact of Regulation 46(4) dealing with honourable acquittal by a criminal court on the disciplinary proceedings. In that of 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 rt expressions "honourable acquittal", "acquitted of blame", "fully exonerated" are unknown to the Code of Criminal Procedure or the Penal Code, which are coined by judicial pronouncements. It is difficult to define precisely what is meant by the expression "honourably acquitted". When the accused is acquitted after full consideration of prosecution evidence and that the prosecution had miserably failed to prove the charges levelled against the accused, it can possibly be said that the accused was honourably acquitted."
14. Hon'ble Supreme Court in G.M. Tank vs. State of Gujarat & Anr., AIR 2006 Supreme Court 2129 has held as under: "31. The departmental proceedings and the criminal case are based on identical and similar set of facts and the charge in a Departmental case against the appellant and the charge before the Criminal Court are one and the same. It is true that the nature of 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 ::: Downloaded on - 27/09/2023 20:33:23 :::CIS 14 .
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 of namely, raid conducted at the appellant's residence, recovery of articles therefrom. The Investigating Officer, Mr. V.B. Raval and other departmental witnesses were rt the only witnesses examined by the Enquiry Officer who by relying upon their statement came to the conclusion that the charges were established against the appellant. The same witnesses were examined in the criminal case and the criminal court on the examination came to the conclusion that the prosecution has not proved the guilt alleged against the appellant beyond any reasonable doubt and acquitted the appellant by his judicial pronouncement with the finding that the charge has not been proved. It is also to be noticed the judicial pronouncement was made after a regular trial and on hot contest. Under these circumstances, it would be unjust and unfair and rather oppressive to allow the findings recorded in the departmental proceedings to stand. In our opinion, such facts and evidence in the department as well as criminal proceedings were 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 ::: Downloaded on - 27/09/2023 20:33:23 :::CIS 15 .
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, of hold that the appeal filed by the appellant deserves to be allowed."
15. Having carefully gone through the judgments of the rt Hon'ble Supreme Court and taking into consideration the judgment passed by this Court in favour of the petitioner in Criminal Appeal No.14 of 2003, it can be safely said that the petitioner was acquitted on merit and he was not given the benefit of doubt, this petition deserves to be allowed to the extent that order dated 20.10.2011 (Annexure P17), in terms whereof, the representation of the petitioner for reinstatement was rejected by the Competent Authority by holding that the petitioner was acquitted on technical grounds, deserves to be quashed and set aside and is hereby quashed and set aside.
16. Coming back to the facts of the present case, herein this Court in the Criminal Appeal acquitted the petitioner after full consideration of the prosecution case and after holding that the prosecution had miserably failed to prove the charges levelled against him.
17. This Court did not give benefit of doubt to the petitioner, but acquitted him on merit after assigning reasons as to why there was no credibility in the case of the prosecution. Not only this, this ::: Downloaded on - 27/09/2023 20:33:23 :::CIS 16 .
Court went to the extent of holding that the prosecutrix had in fact foisted a false case upon the petitioner as she might have developed liking for the petitioner with the intent to marry him.
18. Therefore, in such like circumstance, in addition to the of quashing of the impugned order dated 20.10.2011 (Annexure P17), this Court directs the Competent Authority, i.e. respondent No.1 to rt pass a fresh order on the representation of the petitioner for his reinstatement after the judgment of acquittal passed in his favour by this Court in light of findings returned by this Court in the said judgment, within a period of six weeks from today.
19. With these observations, this petition stands disposed of. Pending miscellaneous applications, if any, also stand disposed of.
(Ajay Mohan Goel) Judge September 22, 2023 (Rishi) ::: Downloaded on - 27/09/2023 20:33:23 :::CIS