Jharkhand High Court
Raj Mani Devi vs Sate Of Bihar & Ors on 29 August, 2014
Equivalent citations: 2015 (1) AJR 183
Author: Aparesh Kumar Singh
Bench: Aparesh Kumar Singh
-1-
C.W.J.C. No. 8348 of 1999
(In the matter of an application under Article 226 of the Constitution of India)
...
Raj Mani Devi ... ... Petitioner
-V e r s u s-
1. The State of Bihar through Inspector General of BMP, Bihar Patna
2. The Deputy Inspector General (BMP), South Range, Ranchi
3. The Commandant, BMP, IV, Bokaro Steel City, Bokaro, Dhanbad
4. The Assistant Commandant BMP-IV, Bokaro Steel City, Dhanbad
5. The Commandant, BMP-IX, Jamalpur, District-Munger
6. The Inspector General, BMP, Bihar, Patna
7. The Director General, BMP, Bihar Patna... ... Respondents
...
For the Petitioner : - M/s Sanjay Prasad, Sanjay Kumar
& Kamdeo Pandey, Adv.
For the Respondents : -Mr. Kumar Vaibhav, JC to AG
.....
PRESENT
HON'BLE MR. JUSTICE APARESH KUMAR SINGH
...
By Court Heard learned counsel for the parties.
At the outset, it is to be indicated that the Appellate Order
passed in Criminal Appeal No. 409 of 1987 dated 18.07.1996,
Annexure-8 is incomplete in the record. A certified copy of the
said order has been produced by the petitioner which is kept on
record.
The present petitioner is widow of the original petitioner
Gorakh Nath Pal, who was dismissed from service on
22.03.1986by an order passed by the respondent no. 3, the Commandant, BMP-IV, Bokaro Steel City, Bokaro, Dhanbad in Departmental Proceeding no. 11/82, Annexure- 6, which has been impugned herein. The petitioner has been acquitted from the criminal charges by the Appellate Court in Cr. Appeal No. 409 of 1987 vide judgment dated 18.07.1996, whereafter the representation of the petitioner for reconsideration has been rejected vide order dated 19.04.1999 passed by the Inspector General of Police, Bihar, Patna, Annexure-11. The original petitioner had also prayed for reinstatement in service, but during the pendency of the writ petition, he died on 18.05.2009 and thereafter, the present petitioner, widow, is prosecuting the instant case.
Incidentally it is also to be stated herein that the writ petition was filed in the Patna High Court before bifurcation of the parent State of Bihar and thereafter stood transferred to this Court. It was dismissed for default on 11.09.2003 and thereafter was restored at the behest of substituted present -2- petitioner. On the earlier occasion, on 31.01.2014 when the matter was taken up after restoration, the petitioner was directed to serve the copy of the pleadings upon the office of the Advocate General, Government of Jharkhand as there was no representation on behalf of the successor State of Jharkhand till then. Thereafter, a counter affidavit has also been filed by the respondent-State of Jharkhand, which is on record. The matter has been heard at length and is being decided.
The brief background facts, which are not in dispute, are noticed to resolve the controversies raised herein.
The petitioner was appointed on 25.06.1964 as temporary constable in Bihar Military Police, Jamalpur and he thereafter continued in service. He proceeded on leave to his native place some time in April, 1982 where he was implicated in a criminal case i.e. Jamalpur P. S. Case No. 75 of 1982 along with eight other persons under Sections 147, 302/149, 323 and 460 of the Indian Penal Code. The present petitioner-widow was also in fact an accused in the said criminal case along with other family members. The respondents issued charge sheet upon him with allegation that he has been made an accused in a criminal case during his period of leave and had been taken in custody. It is not in dispute that the petitioner did not respond to the show cause notice issued in the departmental proceeding no. 11/82 and after being released on bail, reported on 08.06.1982 in his Battalion. The second show cause notice was issued on 05.01.1983, which was challenged in CWJC No. 125/1983(R). The said writ petition was disposed of staying the departmental proceeding till the outcome of the criminal case vide order dated 01.02.1983. However, again 2nd show cause was issued on 21.02.1986 which was again challenged by the petitioner in CWJC No. 1610/1986. On this occasion, the respondents were directed to proceed with the 2nd show cause notice as would appear from Annexure-4, letter dated 21.02.1986. Thereafter, the petitioner was dismissed from service vide impugned order dated 22.03.1986. The writ petition being CWJC No. 1610 of 1986 was permitted to be withdrawn in view of the said dismissal with liberty to the original petitioner to seek remedy in an appropriate forum vide order dated 09.04.1986, Annexure-7. The petitioner's appeal was rejected on 01.03.1988 with a cryptic order, which was again challenged in CWJC No. -3- 2151 of 1988 and the matter was remanded to the Appellate Authority to pass a fresh order. After hearing the petitioner, again the appeal of the original petitioner was rejected on 30.07.1988, which is Annexure-B to the counter affidavit. This order, however, has not been challenged thereafter admittedly, but the petitioner in the meantime was convicted on 01.12.1987 by the Trial Court along with three others, which, however, acquitted other five persons. The trial Court, however, convicted the original petitioner only on the charges of Sections 458 and 323 of the Indian Penal Code with rigorous imprisonment for 5 years and 6 months respectively to run concurrently. The present petitioner-widow of the employee was convicted under Section 325 of the Indian Penal Code and released on executing bail bond of Rs. 3,000/- for maintaining peace and good behaviour for a period of two years. The original petitioner, his widow and two others preferred Criminal Appeal being Cr. Appeal No. 409 of 1987 against the said conviction before the Patna High Court. The learned Single Bench of the Patna High Court vide judgment dated 18.07.1996 passed in Cr. Appeal No. 409 of 1987 set aside the conviction and sentences passed against the appellants and acquitted them from all the charges.
The original petitioner thereafter preferred a representation for his reinstatement on 16.08.1996, which was not entertained by the Commandant, BMP-IV as per his communication dated 13.09.1996, Annexure-9 as the appeal had earlier been dismissed.
This communication was again challenged by the original petitioner in CWJC No. 10066 of 1996. On 27.04.1998, the writ petition was allowed to be withdrawn to move before the Competent Authority. The original petitioner filed appeal against the communication dated 13.09.1996 in May, 1998, and the same has been dismissed by the Appellate Order dated 19.04.1999 by the respondent no. 6.
These chronology of events as are borne out from the records, have not been disputed by either of the parties.
In the backdrop of the aforesaid factual narration the question posed for consideration before this Court is whether the dismissal of the employee warrants interference by this Court in exercise of writ jurisdiction and if so to what relief the -4- petitioner is entitled ? The reason for dismissing the original petitioner as are evident from the original order of dismissal dated 22.3.1986 as also the appellate order dated 30.07.1988 and the order at Annexure-11 passed on 19.04.1999, impugned herein, are that the conduct of the delinquent being made an accused in a criminal case while being only on leave was unbecoming of a member of the police force and that he had been taken in custody pursuant thereto. Thereafter he had also failed to give any reply to the show cause issued and moreover the Investigating Agency had also submitted the charge-sheet against the petitioner for the alleged offences. The order of dismissal was passed apparently on 22nd March, 1986 though he was convicted on 1st December, 1987 by the Trial Court. The petitioner, in spite of that challenged the order in appeal and after remand the Appellate Authority once again rejected his appeal vide order dated 30th July, 1988. The petitioner therefore had no reason to challenge the same once again till the order of his conviction remained, as the order of dismissal was based purely upon his implication in the criminal case. Once the judgment of conviction was set aside by learned Single Judge of the Patna High Court in Cr. Appeal No. 409 of 1987 dated 18th July, 1986, the petitioner immediately represented on 16th August, 1996 which however was not entertained by the respondents on account of earlier dismissal of his appeal. The petitioner, after his acquittal, would have only sought for reconsideration of his dismissal which he made through his said representation and the said order of refusal dated 13.09.1996 passed by the Commandant BMP IV, Bokaro Steel City was challenged in CWJC No. 10066 of 1996. The Patna High Court vide its order dated 27th April, 1998 allowed the petitioner to move before the appropriate authority. The petitioner's representation/appeal thereafter filed in May, 1998 itself, was declined vide Annexure-11 on 19th April, 1999. Therefore, the issue that has to be considered is whether on the petitioner's acquittal the respondents should have reconsidered the matter as his dismissal was based purely on the implication in the same criminal case in which he was acquitted or not ? The law in respect of such issue as has also been relied upon by the learned counsel for the Respondent-State through one of the judgments rendered by learned Division Bench of this Court in -5- the case of The State of Bihar (Now Jharkhand) & Ors.
-Vs.- Ajay Kumar Nand @ Jai Prakash Mandal reported in 2014 (1) JLJR 432 is dealt with at paras 20 to 22 of the judgment while also referring to the judgment rendered by Hon'ble Supreme Court on the said issue. From the ratio laid down therein, it is no doubt true that mere acquittal in a criminal case by itself cannot be the ground for interfering with an order of punishment imposed by the Disciplinary Authority. Having regard to the gravity of charges, the order of dismissal can be passed even if the delinquent officer/employee has been acquitted of the criminal charges. It is well settled that in a criminal case standard of proof is beyond all reasonable doubt while proof in a departmental proceeding is based on preponderance of probabilities. The Hon'ble Supreme Court in the case of Deputy Inspector General of Police & anr. -Vs.- S. Samuthiram reported in (2013) 1 SCC 598 and in the case of Commissioner of Police, New Delhi & anr. -Vs.- Mehar Singh reported in (2013)7 SCC 685 have considered the meaning of the expression "honourable acquittal'. The ratio laid herein by the Apex Court has been referred to by the learned Division Bench in the aforesaid case of Ajay Kumar Nand(Supra). The illuminating opinion of the Apex Court as also quoted at para nos. 21 and 22 of the judgment in the case of Ajay Kumar Nand (Supra) is quoted hereunder:-
"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 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 -6- 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 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."
It is, however, to be pointed out that in the case of Ajay Kumar Nand (Supra), the learned Division Bench found that the acquittal in the criminal case of the said employee was based on benefit of doubt due to non-examination of witnesses and non production of documentary evidence. On the other hand, the disciplinary authority arrived at a decision to impose punishment of dismissal on the basis of sufficient materials produced during the enquiry that the employee had procured appointment in the name of another person by producing false educational certificate. The order of the learned Single Judge, therefore, was set aside and the dismissal of the employee was, therefore, restored by the learned Division Bench.
-7-It is true that acquittal based on benefit of doubt would not stand at par with a clean acquittal on merit after a full fledged trial. Learned counsel for the respondent has also relied upon a judgment rendered by Hon'ble Supreme Court in the case of Samar Bahadur Singh -Vs.- State of Uttar Pradesh and others reported in (2011) 9 SCC 94.
The question therefore is whether the acquittal of the employee in the instant case was 'honourable acquittal' on merit after a full fledged trial or was based on benefit of doubt which would not stand at par with a clean acquittal. Perusal of the judgment in Criminal Appeal no. 409 of 1987 indicates that FIR was lodged against nine accused persons by the informant, PW-6, that his father was assaulted by the accused persons, some of whom had come from the roof of an adjoining house and some of them had gone to the roof through staircase. The deceased had become unconscious as a result of the assault and was taken to the Railway Hospital, Jamalpur where he died at 6.20 A.M. The Fardbeyan was recorded at 9 A.M. on 30.04.1982 while the incident took place at 11 P.M. on 29.04.1982. The informant had alleged that he was sleeping on the roof of the house at 11 P.M. on the date of occurrence along with his parent including his uncle and sister. It was alleged that all nine accused persons including four appellants started assaulting his father and the accused no. 4 carrying a boulder in her hand and all other accused persons i.e. eight out of nine were armed with lathi. On assault father of the deceased came downstairs and tried to flee through the Gali to save his life when accused no. 4, Rajmani Devi aimed the boulder from the roof at his father and threw it on his head whereupon he fell down in the gali and became unconscious. As per the informant's statement besides being hit by a boulder, he was assaulted by as many as eight accused persons by means of lathi. The learned Appellate Court considered the whole prosecution case as imaginary and full of exaggeration in the light of injuries found by the Doctors while he was alive and also on the autopsy conducted after his death. The learned Single Judge found that the description of the occurrence, as claimed by the informant and the eye witnesses, was absurd that the deceased even after receiving the blows and assaulted by lathi by eight accused persons on the roof, had necessary strength to -8- come down stairs from the roof. Though the autopsy had shown that right temporal bone was found fractured, the learned Court observed that if such an injury would be attributed to the boulder thrown upon the deceased while running for his life, how one or two bruises only were caused as a result of assault made by as many as eight persons. The deceased admittedly was under the influence of alcohol consumed in the previous night and the learned Appellate Court, therefore, came to a conclusion upon reappraisal of all the evidences that he had fallen down under the influence of liquor which accounted for his head dashing against a hard object with considerable force and also other injuries, which was only on the body of the deceased from shoulder upwards in the nature of bruises. The learned Appellate Court, therefore, found that the trial Court did not find any case proved under Section 302 of the Indian Penal Code read with Section 149 of the Indian Penal Code and acquitted five accused persons and convicted three appellants for an offence under Section 458 of the Indian Penal Code. The learned Court also found that there was inordinate delay in reporting the matter to the police, though the Railway Hospital, Jamalpur was only 500 yards from the Jamalpur Police Station and the informant had moved his injured father to the hospital by 1.30 A.M. itself.
At the first instance though the trial proceeded for charges under Sections 147, 302/149, 323 and 460 of the Indian Penal Code against nine family members of the accused including the employee/original petitioner and his wife, but the trial court itself acquitted five of the accused persons of all the charges. The rest four persons which included present petitioner and his husband-employee were convicted for lesser offences. The original petitioner was convicted under Section 458 of the Indian Penal Code to undergo 5 years rigorous imprisonment along with other two accused and also R.I for 6 months under Section 323 of the Indian Penal Code.
The present widow petitioner was convicted under Section 325 of the Indian Penal Code and released on bond of good behaviour for a period of 2 years. The learned Single Judge of the Patna High Court in the judgment in appeal has extensively dealt with the evidences which were brought on record by the prosecution. It appears that a total of 11 prosecution witnesses -9- were examined which included the informant, P.W. 6, his mother, P.W. 3, other 3 witnesses, P.Ws. 2, 4 and 5 and also the Medical Officers, P.W.7 and P.W.9, the Investigating Officer P.W. 8 as well. The evidence of the prosecution witnesses were appreciated by the learned Court along with the opinion of the Doctor, who had opined that both the injuries on the deceased could have been caused by fall.
Learned Single Judge also found that there was inordinate delay in reporting the matter to the police. Perusal of the judgment gives an impression that the prosecution had adduced all its evidences in their support and no witnesses had turned hostile, meaning thereby, that the prosecution had made all endeavour to establish the charges against all the 9 accused persons which included offences under Section 302 of the Indian Penal Code. Learned Single Judge however after reappraisal of the evidence came to a definite conclusion which is appropriate to be quoted hereinbelow:-
"The delay in the face of it is inordinate and for want of any explanation it creates serious doubts about the truth of the prosecution version as the prosecution has exposed itself to the criticism that the informant was bying time to fabricate a false case. All this together with the fact that the whole prosecution case appears to have been highly exaggerated create serious doubts about the truth of the prosecution version. The trial court was right in disbelieving the prosecution case with regard to the charge of murder under Section 302 IPC and acquitting most of the accused persons who were put on trial along with the appellants. However, even considering the evidence in its totality one finds it difficult to disengage the truth from the falsehood and in such a case it would only be just and fair to give the benefit of doubt to the appellants by not considering the evidence trustworthy at all. I, thus, find and hold that the prosecution had miserably failed to prove the charges against the appellants beyond reasonable doubt and the trial court was in error in convicting the appellants. The conviction and sentences passed against the appellants cannot, therefore, be upheld.
In the result the criminal appeal is allowed and the judgment and conviction of the appellants are set aside. They are also discharged from the liabilities of their bail bonds."
The observation of the learned Single Judge as quoted hereinabove shows that the prosecution had miserably failed to prove the charges against the appellants beyond all reasonable doubt and the trial court was in error in convicting the appellants. It also observed that the trial court was right in disbelieving the prosecution case with regard to the charge of murder under Section 302 IPC and acquitting most of the accused persons who were put on trial along with the -10- appellants. However, even considering the evidence in its totality the learned Single Judge found it difficult to disengage the truth from the falsehood and observed that evidence produced by the prosecution was not trustworthy at all, which entitled the appellants for a benefit of doubt. These evidences recorded by learned Appellate Court, read in conjunction with the acquittal granted by the trial court in respect of other 5 accused for a serious offence under Section 302 of the Indian Penal Code, cumulatively show that despite the best effort of the prosecution to bring home the charges, learned courts did not find it trustworthy to sustain the charges against the accused persons. That is why the learned appellate court also was persuaded to set aside the conviction of the original petitioner and his wife along with other two persons, as the prosecution had miserably failed to prove the charges. Keeping in line with the ratio laid down by Hon'ble Supreme Court, this cannot be said to be a case where a person was acquitted for technical reasons or the prosecution giving up other witnesses since few of the other witnesses turned hostile. This case also cannot be said to be a case of acquittal merely based upon benefit of doubt rather it is a case of clean acquittal on merits upon proper appreciation of all material evidence.
In such circumstances, when the very basis for dismissal of the services of the employee was his implication in a criminal case and his conviction has been set aside on merits by the Criminal Appellate Court, the respondents were required to reconsider the order of dismissal of the employee after he had moved the respondents on his acquittal. Perusal of the impugned order at Annexure-11 which rejected the petitioner's appeal on 19th April, 1999 shows that once again the appellate authority took into account the original reasons for dismissal of the employee and observed that, if the allegations in a departmental proceeding are established, though the criminal court has acquitted the accused/delinquent employee, the order of punishment in a departmental proceeding is justified. At the same time, the appellate authority in its order has treated the appeal of the petitioner as time barred after the earlier appeal was rejected in July, 1988 itself. On both counts the appellate order cannot be said to be proper in the eyes of law. This was not a case where the dismissal of the employee was based upon -11- any findings of guilt of a misconduct which were based on considerations unrelated or not wholly dependant on his involvement in the criminal case. The sole reason for the disciplinary authority to dismiss him from service was his involvement in a criminal case.
The Bihar Police Manual is being followed by the successor State of Jharkhand and Chapter-25 thereof deals with the departmental punishment. Rule 824 provides for various types of punishments including dismissal. The effect of dismissal as per rule 829 is that it precludes re-employment in Government service of the person dismissed and removal or compulsory retirement does not preclude re-employment in Government service. The power and the procedure in respect of taking departmental action where criminal prosecution have been initiated against a police officer, are provided under rule 844 to 850. Rule 844 provides for instances where departmental proceeding are to be initiated in cases where a police officer has been convicted or acquitted or discharged (except when the case is declared false) and the Superintendent of Police is obliged to go through the record of every case brought against a police officer in the courts and record an order in writing. Rule 845 provides the effect of imprisonment for an offence implying moral turpitude, such as theft, prejury, etc or for serious breach of discipline such as allowing a prisoner to escape, sleeping on sentry duty, etc. where in such case, the proceeding could be initiated with a view to dismissal. Rule 847 provides for framing of charge in proceedings under rules 845 and 846 which indicates that charge in such a proceeding shall be that the accused has been convicted, imprisoned or fined, as the case may be, for the offence concerned. It however, indicates that such a proceeding shall not be taken until the appeal against the order of conviction has been heard or the time allowed for appeal has expired. Rule 848 provides for proceedings in case of discharge; where an officer prosecuted before the Court is discharged for want of evidence, it is within the discretion of the Superintendent of Police to institute departmental proceedings or not as per rule
844. It is evident from the reading of the aforesaid rules that the charge in a proceeding under rule 845 and 846, as above, would be that the accused has been convicted, imprisoned or -12- fined, as the case may be, for the offence concerned, but such a proceeding shall not be taken until the appeal against the order of conviction has been heard or time allowed for appeal has expired. In the light of the aforesaid departmental rules, the facts of the present case indicated that the charge against the petitioner employee was framed when he was implicated in criminal case and taken into custody and the proceedings were initiated and he was dismissed even before he was convicted.
In the instant case, criminal appeal of the dismissed employee ended in his acquittal, as aforesaid, on merits. The petitioner therefore sought reconsideration of his dismissal based upon the grounds of his involvement in the criminal case.
In the circumstances discussed hereinabove, the employee was justified in seeking reconsideration of the same which seems to have been overlooked on reasons which were not germane after his acquittal by the appellate court. The petitioner could not have been accused of delay in making his representation/appeal as immediately after his acquittal on 18th July, 1996 he made representation on 16th August, 1996 for his reinstatement. After being declined, he approached the Patna High Court and after liberty was granted in CWJC No. 10066/1996 on 27th April, 1998, he once again preferred appeal in May, 1998. Therefore on both counts the impugned appellate order as well as impugned order of dismissal do not seem to survive the test of legal scrutiny. The learned counsel for the petitioner has relied upon the judgment rendered in the case of Basanti Prasad -Vs.- Chairman, Bihar School Examination Board and others reported in (2009) 6 SCC 791 wherein it is submitted that in the similar circumstances when the employee was acquitted by the trial court, and the matter had remained pending for long the order of termination challenged by the widow however was not interfered by the High Court. The Hon'ble Supreme Court in such circumstances, held that the writ petition ought to have been entertained and that the delay was satisfactorily explained. In the said case, the termination order of the employee was set aside. The question of back wages was also considered by Hon'ble Supreme Court. It was held that the appellant widow was not entitled to the back wages but only to the benefits of pension. In the facts of the instant case, as has been noticed hereinabove, the original -13- employee was dismissed from service on 22nd March, 1986 itself and from the submissions of the learned counsel for the parties it is not known as to when the employee would have reached the age of his superannuation. However, on account of the finding and the reasons recorded hereinabove, the order of dismissal 22.3.1986 and appellate order dated 19.4.1999 contained at Annexures-6 & 11 respectively, cannot be sustained in the eyes of law and are accordingly quashed.
The next question which requires to be determined is what are the consequential benefits to which the petitioner may be entitled. On this issue, it is not in dispute that the criminal case on account of which he was dismissed from service was not instituted at the behest of the employer. In fact, the employer had to suffer the absence of service of the employee on account of such a criminal case having been instituted against him by a third party and he could not have been kept as a member of the Uniform Police Force as it amounted to lowering down the image of the police. The employer therefore cannot be saddled with burden of paying the back wages for the period the petitioner would have remained in service had he not been dismissed till his superannuation for no fault of them. However, at the same time, it is also true that he was dismissed and had to remain out of service till he reached the age of superannuation only on account of his implication in a criminal case which ultimately ended up in his acquittal on merits as the evidence produced by the prosecution was not at all found trustworthy. Despite all material witnesses being produced by the prosecution which included several family members, independent witnesses, medical officers and I. O. and no one turning hostile, the learned Appellate Court came to a conclusion that the prosecution had miserably failed to establish the charges. The original petitioner subsequently died during the pendency of the writ application. In such circumstances, though the petitioner is not entitled to the back wages but she would definitely be entitled to the pensionary benefits to which the employee could have been entitled treating him to be in service upon setting aside of the order of dismissal as aforesaid. The respondents would therefore pay the admissible death cum retiral dues of the employee to the petitioner along with its arrears from the date he would have -14- reached his normal age of superannuation in accordance with law. The aforesaid course also finds support from the decision of the Hon'ble Apex Court in the case of Basanti Prasad(Supra) relied upon by the petitioner.
Let such payment be made within a reasonable time preferably within a period of 10 weeks from the date of receipt/ production of a copy of this order.
Accordingly, the writ petition is allowed.
(Aparesh Kumar Singh, J.) Jharkhand High Court, Ranchi The Day of 29th August, 2014 Kamlesh/Jitendra/N.A.F.R.