Jharkhand High Court
State Of Bihar (Now Jharkhand) vs Ajay Kumar Nand ? Jai Prakash on 8 January, 2014
Equivalent citations: 2014 (3) AJR 38
Author: R. Banumathi
Bench: Chief Justice, Aparesh Kumar Singh
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
L.P.A. No. 177 of 2012
The State of Bihar (Now Jharkhand) & Others ... Appellants
Vs.
Ajay Kumar Nand @ Jai Prakash Mandal ... Respondent
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CORAM : HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE APARESH KUMAR SINGH
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For the Appellants : Mr. Rajiv Ranjan Mishra, G.P.-II
For the Respondent : Mr. Arshad Hussain, Advocate
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CAV on 3rd of January, 2014 Pronounced on 8thof January, 2014
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R. Banumathi, C.J. This Letters Patent Appeal is preferred
against the order dated 19.11.2011 passed by the learned Single
Judge in C.W.J.C. No. 5762 of 2000P by which the learned Single
Judge set aside the punishment of dismissal from service and
ordered reinstatement with 40% of arrears of salary. The short
point involved in this appeal is whether the punishment of
dismissal awarded in departmental proceedings is liable to be
quashed merely on the ground that the criminal case ended in
acquittal.
2. The respondent was appointed as Revenue Employee
(Rajaswa Karamchari) by an order No. 11 dated 29.08.1990
issued by the Collector, Sahebganj. By an order No.12 dated
04.10.1990the respondent and similarly situated persons were given posting and respondent was posted at Anchal Pakuria. The respondent is alleged to have obtained appointment in the name of Ajay Kumar Nand (who is actually stated to be Jai Prakash Mandal, son of Nirmal Kumar Mandal). On 01.11.1993 a 2 complaint was received from one Rajendra Prasad Mandal alleging that the respondent‟s appointment in the year 1990 was by impersonating the name of Ajay Kumar Nand while his actual name is Jai Prakash Mandal son of Nirmal Kumar Mandal and he is resident of Village Nandgolla, P.O. Patharghatta, P.S. Antichak (Kahalgaon), District Bhagalpur.
3. Based on the complaint, verification and enquiry have been done about the permanent address and school address furnished by the respondent. The Sub Divisional Officer, Pakur submitted his report stating that even though the respondent claims to have passed Matriculation examination in First Division from Netarhat Government High School, the respondent was not able to write in English, Year of Examination and Roll Code etc. and that he does not know where the Netarhat Government School is situated. The Sub Divisional Officer, Pakur recommended for lodging first information report against the respondent.
4. The enquiry was conducted in the native village of the respondent-Nandgolla, P.S. Antichak, P.S. Patharghatta, District Bhagalpur. During enquiry the co-villagers have given a written statement that no person of the name of Ajay Kumar Nand, son of Ram Ratan Prasad Singh is residing in the village-Nandgolla. In the course of enquiry, the co-villagers also informed that the actual name of the respondent is Jai Prakash Mandal, son of Nirmal Mandal and he is posted as Revenue Employee in Pakuria. The same was also confirmed by the mother of the respondent. 3
5. On enquiry in the concerned Netarhat High School, the Executive Magistrate found that Ajay Kumar Nand son of Sri Ram Ratan Prasad Singh, passed Matriculation Examination in First Division from Netarhat Government School in the year 1984 and the said Ajay Kumar Nand has completed his I.Sc. from St. Xaviers College, Ranchi and Engineering from Sindri Institute and that he was then preparing for U.P.S.C. from Delhi. His father Ram Ratan Prasad Singh, working as a Teacher in Rajkiya Middle School, stated that his son is not doing job anywhere. He stated that his permanent address is Village Hetinpur, P.O. Hetinpur, P.S. Patori, District Samastipur and that he is Yadav by caste.
6. On the basis of inquiry, first information report was registered vide Pakuria Police Station Case No. 13/1994 dated 11.03.1994 under Sections 198, 200, 416, 420, 463, 467, 468 and 471 of the Indian Penal Code against the respondent. After completion of investigation, chargesheet was filed. After trial, the respondent was acquitted by the Trial Court by the judgment dated 29.08.1996 (Annexure-10). Government Appeal preferred against the acquittal was dismissed by the High Court vide order dated 09.02.1998.
7. The Deputy Commissioner, Pakur ordered for initiation of Departmental Proceeding against the respondent and charge was framed against respondent for producing bogus certificate and getting appointment on the basis of false certificate (Annexure-11). The respondent contested the departmental 4 proceedings stating that the charges levelled against him are baseless and that his real name is Ajay Kumar Nand, son of Ram Ratan Prasad Singh, resident of Village Nandgolla, P.S. Antichak, P.S. Patharghatta, District Bhagalpur. During the proceedings, respondent took the stand that he has been acquitted by the Criminal Court and the appeal filed by the Government was dismissed by the Hon‟ble High Court. The respondent contended that on the self-same charge he cannot be proceeded departmentally. The Enquiry Officer held that the charges levelled against the respondent are proved and concluded that the respondent has obtained appointment for the post of Revenue Employee on forged educational certificate in the name of Ajay Kumar Nand. The respondent was issued second show cause notice and by order dated 27.05.2000, the respondent was imposed punishment of dismissal from service.
8. Challenging the order of dismissal from service, the respondent filed the writ petition contending that the criminal case in G.R. No. 89 of 1994 ended in acquittal and that the Government Appeal No. 01 of 1997 preferred against the order of dismissal before the High Court, Ranchi Bench was also dismissed by the High Court vide order dated 09.02.1998 and while so, the charges similar to criminal proceeding are not sustainable.
9. The learned Single Judge allowed the writ petition setting aside the punishment of dismissal from service and ordering 5 reinstatement of the respondent with 40% of arrears of salary. Referring to 2009 (2) JCR 269 (Rafique Mian Vs. Central Coalfields Ltd. and Ors.), the learned Single Judge held that the charges leveled against the delinquent-respondent in the departmental proceeding vis-à-vis the charges leveled against him in criminal case are similar and once the criminal case ended in acquittal, there is no meaning to proceed further in the departmental proceeding for the similar charges.
10. Challenging the order in the writ petition, the Government has preferred this appeal. The learned Government Pleader Mr. Rajiv Ranjan Mishra contended that the learned Single Judge failed to consider that the nature and scope of a criminal case is entirely different from those of a Departmental Proceeding and an order of acquittal, therefore, cannot terminate the Departmental Proceeding or the punishment imposed be set aside. The learned Counsel further submitted that the real name of the respondent is Jai Prakash Mandal and his father‟s name is Nirmal Prasad Mandal and when the materials placed in the disciplinary proceedings clearly show that the respondent has secured appointment on the basis of bogus certificate falsely in the name of Ajay Kumar Nand, son of Sri Ram Ratan Prasad Singh, the learned Single Judge was not right in quashing the impugned order of dismissal from service.
11. Reiterating the contentions in the writ petition, the learned counsel for the respondent submitted that when the criminal case 6 ended in acquittal, the departmental proceeding initiated on the same set of charges cannot be sustained and the learned Single Judge rightly held that there is no meaning to proceed further in the departmental proceeding for the similar charges. The learned counsel further submitted that the respondent studied in Netarhat Government High School while the officers made enquiry about one Ajay Kumar Nand who studied in Netarhat Residential School and arrived at the wrong conclusion, based on the alleged enquiry and materials placed in the departmental proceedings have no bearing.
12. The learned Single Judge allowed the writ petition mainly on the ground that the criminal case ended in acquittal and that the charges leveled against the delinquent-respondent in the departmental proceeding vis-à-vis charges leveled against him in the criminal proceeding are similar and therefore there is no meaning in the departmental proceeding.
13. For securing employment, the respondent is alleged to have produced false educational certificate of Ajay Kumar Nand, son of Sri Ram Ratan Prasad Singh stating that he has passed the Secondary School Examination from Government High School, Netarhat and stating his community as "Kurmi". Based on the report of the S.D.O., criminal case was registered against the respondent under Sections 198, 200, 416, 420, 463, 468 and 471 I.P.C. In the criminal case the respondent was charged for the offences of forgery, using of forged document as genuine to secure 7 employment, cheating and misappropriation of Government fund by obtaining Government service using unfair means.
14. The charges framed against the respondent in the departmental proceeding is that the actual name of the respondent is Jai Prakash Mandal, son of Nirmal Mandal and that the respondent has obtained Government job in the name of Ajay Kumar Nand, son of Sri Ram Ratan Prasad Singh and that he secured the post of Revenue Employee in Circle Office, Pakuria by obtaining marksheet and certificate of Ajay Kumar Nand using unfair means.
15. Though the charges in the criminal case and the charges in the departmental proceeding appear to be similar, in essence the charges are not the same. The charges leveled in the departmental proceeding are for securing employment on the basis of a false certificate in the name of Ajay Kumar Nand using unfair means. The question involved in the departmental proceeding is whether a person, who secured employment on the basis of false certificate using unfair means, can be allowed to work in the department. But in the criminal case, the charges are forgery, using forged document as genuine, impersonation etc.
16. Having regard to the gravity of the charges, we are of the view that mere acquittal of the respondent by a criminal court has no impact on the disciplinary proceeding initiated by the department. It is pertinent to note that sufficient materials were placed in the departmental proceeding to establish that the 8 respondent is actually Jai Prakash Mandal, son of Nirmal Mandal, resident of Village Nandgolla and has obtained appointment on the basis of forged educational certificate in the name of Ajay Kumar Nand, son of Sri Ram Ratan Prasad Singh, resident of village Hetinpur, P.O. Hetinpur, P.S. Patori, District Samastipur. During the course of arguments in this appeal, the learned Government Pleader Mr. Rajiv Ranjan Mishra has also produced the sealed cover containing the documents which were before the Deputy Commissioner, Pakur and also the Xerox copy of the documents relating to the departmental proceeding. The gist of these documents/reports were referred to in the charges framed against the respondent (Annexure-11). We have perused the Xerox copy of the documents/various reports placed in the departmental proceedings.
17. On receiving information that the respondent has obtained appointment on the basis of false name, address and certificate, enquiry was conducted in the native village of the respondent- Nandgolla, P.S. Antichak, P.S. Patharghatta, District Bhagalpur. By perusal of the documents produced before us (Flag 1) it is apparent that the co-villagers of Nandgolla namely Silchu Yadav, Sarovar Chaudhary, Ram Briksha Singh, Chandra Shekhar Singh, Shiv Kumar Singh and Ramsharan Chaudhary have given statement that no person of the name of Ajay Kumar Nand, son of Sri Ram Ratan Prasad Singh is residing in Village Nandgolla, Bhagalpur district. In the course of enquiry, Laddu Mandal, Ramdahin Mandal and other persons of Village Nandgolla 9 informed that a person of Village Nandgolla whose actual name is Jai Prakash Mandal, son of Nirmal Mandal was posted as Revenue Employee in Pakuria. The respondent had produced the certificate that he passed Matriculation in first division from Netarhat Government High School and has obtained 80% marks in English. Though the respondent claims to have passed Matriculation in first division from Netarhat Government High School (which is a very reputed school in the State of Jharkhand) and claims to have obtained 80% marks in English, during the enquiry by the S.D.O. it was noticed that the respondent was not able to write in English the Year of his Examination, Roll Code etc. The respondent did not even know where Netarhat Government High School is situated.
18. Further enquiry was conducted by Executive Magistrate Sri Dilip Kumar in Netarhat School. On enquiry it was found that Ajay Kumar Nand, son of Sri Ram Ratan Prasad Singh had passed Matriculation examination in first division from Netarhat Government High School in the year 1984 and that the said Sri Ram Ratan Prasad Singh is posted as Teacher in Rajkiya Middle School, Ratu, Ranchi. The Executive Magistrate Sri Dilip Kumar examined the said Sri Ram Ratan Prasad Singh at Ranchi who gave the statement on 03.04.1994 stating that his son Ajay Kumar Nand, after passing Matriculation examination from Netarhat School in 1984, completed I.Sc. from St. Xavier College, Ranchi during 1984-86 and Engineering from Sindri Engineering College during 1986-90 and preparing for U.P.S.C. from Delhi. 10 The said Sri Ram Ratan Prasad Singh stated that his son Ajay Kumar Nand is not doing any job anywhere and if anyone is appointed in the name of Ajay Kumar Nand, son of Sri Ram Ratan Prasad Singh, then he is not his son and requested that necessary legal action be taken against the person who was appointed in Government service in the name of Ajay Kumar Nand. Based on the statement of the villagers of Nandgolla, report of Sub- Divisional Officer, Pakur and the report of the Executive Magistrate Sri Dilip Kumar, the Enquiry Officer found that charge was proved and that the respondent committed fraud and cheating and obtained Government job.
19. In this appeal, during the arguments, the learned counsel for the respondent produced the certificate issued by Bihar School Examination Board, Patna containing the details of marks obtained by Ajay Kumar Nand in the annual examination conducted in the year 1984 at Government High School, Netarhat. The learned counsel for the respondent contended that the respondent passed Matriculation in Government High School, Netarhat whereas the enquiry conducted by the officers was related to one Ajay Kumar Nand of Residential School of Netarhat. In the show cause filed before the enquiry officer (Annexure-12), the respondent has not raised this point that he studied in Netarhat Government Higher Secondary School and that another Ajay Kumar Nand studied in Netarhat Residential School. The learned counsel for the respondent had also produced a certificate allegedly issued by the Headmaster of Netarhat Government High 11 School. The respondent did not produce the original Matriculation Certificate or the authenticated copy of the same before the Enquiry Officer or before the Disciplinary Authority.
20. Mere acquittal in a criminal case by itself cannot be a ground for interfering with an order of punishment imposed by the disciplinary authority. Having regard to the gravity of charges, order of dismissal can be passed even if the delinquent officer had been acquitted of the criminal charges. As held by the Hon‟ble Supreme Court in the case of Commissioner of Police, New Delhi & Anr v. Mehar Singh reported in (2013) 7 SCC 685 while the standard of proof in a criminal case is a proof beyond all reasonable doubt, the proof in a departmental proceeding is preponderance of probabilities..
21. The expression „honourable acquittal‟ was considered by the Hon‟ble Supreme Court in the case of Deputy Inspector General of Police and Another v. S.Samuthiram reported in (2013) 1 SCC 598. Considering the meaning of the expression „honourable acquittal‟ in S.Samuthiram case, the Hon‟ble Supreme Court in paras-25 and 26 held as under :-
"25. In R.P.Kapur v. Union of India it was held that even in the case of acquittal, departmental proceedings may follow where the acquittal is other than honourable. In State of Assam v. Raghava Rajgopalachari this Court quoted with approval the views expressed by Lord Williams, J. in Robert Stuart Wauchope v. Emperor which is as follows : raghava case, SLR p.47, para 8) "8. ... „The expression "honourably acquitted" is one which is unknown to courts of justice. Apparently it is a form of order used in courts martial and other 12 extrajudicial 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 rules 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 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 that 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."
22. S.Samuthiram case was referred to and followed in the decision of Commissioner of Police, New Delhi & Anr v. Mehar Singh [(2013) 7 SCC 685] and it has been observed that quite often criminal cases end in acquittal because witnesses turn hostile or due to non-adducing of evidence. Such acquittals are 13 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, reported in AIR 1964 SC 787 the Hon‟ble Supreme Court has taken a view that departmental proceedings can proceed even though a person is acquitted when the acquittal is other than honourable.
23. In the light of the above, let us examine what is the nature of acquittal in the criminal case against the respondent. By perusal of the judgment of the criminal court (Annexure-10) it is seen that only the informant, who registered the case who was also the Enquiry Officer, alone was examined. The documents also were not produced and marked in the criminal case. Judicial Magistrate, Pakur pointed out that apart from the informant who was also the Enquiry Officer, no other witnesses were examined by the prosecution and the prosecution has not produced the documents. The case ended in acquittal mainly because of non- examination of the witnesses, non-production of the documentary evidence and giving benefit of doubt to the respondent.
24. We are of the view that in the criminal case the respondent was not honourably acquitted by the criminal court: but only due to the non-examination of the witnesses and non-production of the documents, the benefit of doubt was given to the respondent and he was acquitted. These aspects were not kept in view by the learned Single Judge and the learned Single Judge was not right 14 in interfering with the punishment of dismissal merely on the ground that the criminal case ended in acquittal. Having regard to the gravity of the charges that the respondent had secured employment on the basis of fake certificates, the respondent cannot be allowed to work in the department and we are of the view that the punishment of dismissal from service is commensurate with the gravity of the charges and the order of the learned Single Judge cannot be sustained and is liable to be set aside.
25. Therefore, the order dated 19.11.2011 passed in C.W.J.C. No. 5762 of 2000P is set aside. The L.P.A. is allowed.
(R. Banumathi, C.J.) (Aparesh Kumar Singh, J.) Birendra/