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GAHC010069072019
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/2179/2019
KUSHAL DAS
S/O- LT RATNESWAR DAS, R/O- BISHNURABHA NAGAR, NOONMATI, DIST-
KAMRUP (M), ASSAM, PIN- 781020
VERSUS
THE STATE OF ASSAM AND 3 ORS.
REP. BY THE SECY. TO THE GOVT. OF ASSAM, EDUCATION DEPTT.,
DISPUR, ASSAM, PIN- 781006
2:THE CHAIRMAN
BOARD OF SECONDARY EDUCATION
ASSAM BAMUNIMAIDAM
GHY ASSAM
PIN- 781021
3:THE SECRETARY
BOARD OF SECONDARY EDUCATION
ASSAM BAMUNIMAIDAM
GHY ASSAM
PIN- 781021
4:THE CHIEF ACCOUNTS OFFICER
BOARD OF SECONDARY EDUCATION
ASSAM BAMUNIMAIDAM
GHY ASSAM
PIN- 78102
Advocate for the Petitioner : MR D SARMA
Advocate for the Respondent : SC, SEC. EDU.
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BEFORE
HON'BLE MR. JUSTICE MANASH RANJAN PATHAK
ORDER
28-01-2021 Heard Mr. Diganta Sarma, learned counsel for the petitioner and Syed Md. Touhid Chistie, learned Standing counsel, Secondary Education Department for the respondent No. 1. Also heard Mr. Diganta Kumar Roy, learned Standing counsel, Board of Secondary Education, Assam for the respondent Nos. 2 to 4.
2) Issue involved in this writ petition is that inspite of being acquitted in the criminal proceeding by the Appellate Court, i.e., this High Court, the respondent Board of Secondary Education, Assam (SEBA, in short) rejected petitioner's plea for his reinstatement in its service holding that his acquittal by the High Court was not honourable and that the same was on benefit of doubt.
3) The petitioner was a regular employee of respondent SEBA since 12.05.1998 and was serving as Lower Division Assistant cum Typist in the office of SEBA at Guwahati. While in service, his marriage was solemnised on 02.05.2008. But after four months of their marriage, petitioner's wife committed suicide on 18.09.2008. Because of said unnatural death, his father-in-law lodged an FIR pertaining to the death of his daughter and accordingly, Noonmati Police Station Case No. 298/2008 under Section 304(B)/34 IPC was registered, in which the petitioner was arrested on 10.09.2008 and was in police and jail custody.
4) As he was arrested and sent to judicial custody in connection with a criminal case, i.e., said Noonmati P.S. Case No. 298/2008, the respondent SEBA by order No. SEBA/EST/17/98/2702-2726 dated 24.09.2008 suspended the petitioner from service w.e.f. 19.09.2008, allowing him to draw subsistence allowance during his suspension period, as admissible under the rules.
5) Police submitted charge sheet in said Noonmati P.S. Case No. 298/2008 against the petitioner and other accused persons of the case. A criminal proceeding being Sessions Case No. 266(KG)/2009 was accordingly registered against the accused persons of the case, including the petitioner. The Trial Court, i.e., the Court of learned Sessions Judge, Kamrup, Guwahati framed charge under Sections 302/304(B)/34 IPC against the petitioner.
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6) The learned Sessions Judge, Kamrup, Guwahati by its judgment dated 26.09.2012, passed in said Sessions Case No. 266(KG)/2009, convicted the petitioner under Sections 304(B)/34 IPC and sentenced him to undergo rigorous imprisonment for 7 (seven) years.
7) Because of his said conviction and sentence dated 26.09.2012 in said Criminal Case, i.e., Sessions Case No. 266(KG)/2009 [arising out of said Noonmati P.S. Case No. 298/2008], the respondent SEBA by its Speaking Order No. SEBA/EST/17/98/2975-3000 dated 23.11.2012 terminated the petitioner from his service of w.e.f., 26.09.2012 (Annexure-I to this writ petition).
8) The petitioner, being aggrieved with the said judgment of conviction and sentence dated 26.09.2012, passed in said Sessions Case No. 266(KG)/2009 by the learned Sessions Judge, Kamrup, Guwahati, preferred an appeal before this Court being Criminal Appeal No. 222/2012. After hearing the learned counsels for the parties and on perusal of the records of the Trial Court, the Appellate Court by its Judgment and Order dated 11.01.2018 allowed the said appeal preferred by the petitioner by setting aside his said conviction and sentence dated 26.09.2012, passed by the learned Sessions Judge, Kamrup, Guwahati in Sessions Case No. 266(KG)/ 2009 and accordingly, allowed the said appeal of the petitioner (Annexure-II to this petition).
9) Thereafter, the petitioner on 28.02.2018 submitted a representation before the respondent SEBA for his reinstatement in service (Annexure-III to this petition). But the respondent SEBA by its communication No. SEBA/EST/17/98/ 130 dated 14.05.2018 rejected the prayer of the petitioner for his reinstatement in service holding that the High Court by the order dated 11.01.2018 passed in Criminal Appeal No. 222/2012 though set aside the order of conviction against him, but he was not acquitted honourably and rather on benefit of doubt. Respondent SEBA by the said letter dated 14.05.2018 also informed the petitioner that the acquittal in a criminal case does not automatically entitle an accused for reinstatement in service (Annexure-IV to this petition).
10) By the said communication dated 14.05.2018, the respondent SEBA also observed that during his suspension from service w.e.f. 24.09.2008 to 22.11.2012 and since his termination from service w.e.f., 23.11.2012, the petitioner was in police custody for four years and in Page No.# 4/8 imprisonment for long 5½ years and those facts reflect that the petitioner failed to maintain a good moral character and he defamed himself by bring down his own social status and thereby proved himself unfit for public service.
11) Hence this writ petition by the petitioner, praying amongst others, for a direction to the respondent SEBA (i) to reinstate him in service with all other consequential benefits in the post from which he was dismissed on 26.09.2012; (ii) to reinstate him in service with retrospective effect and (iii) to quash and set aside the Speaking Order No. SEBA/EST/17/98/2975-3000 dated 23.11.2012, whereby the respondent SEBA terminated him from service (Annexure-I).
12) Though Notice in this case was on 03.05.2019, but the respondents did not file their affidavits in the matter. In the said order dated 03.05.2019, the Court observed that pendency of this petition shall not be a bar for the respondent SEBA to consider the prayer of the petitioner for his reinstatement in service.
13) Even during the deliberation of the matter, the respondent SEBA did not place any materials before the Court in its support except stating that the petitioner was rightly terminated from service as he was convicted and sentenced by the Criminal Court for committing offence under Sections 304(B)/34 IPC, sentencing him to undergo rigorous imprisonment for seven years. Respondent SEBA reiterated that the High Court acquitted the petitioner from the criminal offence on benefit of doubt.
14) From the reading of the judgment and order dated 11.01.2018, passed by the Appellate Court in Criminal Appeal No. 222/2012 (Annexure-II), by which the petitioner was acquitted from the conviction and sentence under Section 304(B)/34 IPC, it can be seen that the victim, i.e., wife of the petitioner died due to asphyxia as a result of ante-mortem hanging, that was suicidal in nature. As the prosecution failed to prove any of the ingredients of Section 304(B) IPC, the Appellate Court came to the finding that the offence of Section 304(B) IPC alleged to be committed by the petitioner cannot be held to be complete and therefore, he cannot be convicted in absence of proving all the essential ingredients constituting the offence of Section 304(B)/34 IPC. The Appellate Court also observed that the prosecution failed to prove beyond all reasonable doubt against the petitioner regarding the Page No.# 5/8 allegation of harassment and cruelty meted out by him to the victim, i.e., his deceased wife, for demand of dowry, soon before her death.
15) Though, in the said judgment dated 11.01.2018, passed by the Appellate Court in Criminal Appeal No. 222/2012, it was not specifically written that that the petitioner has been acquitted honourably, but in the said judgment it was also not specified that the accused petitioner has been acquitted on benefit of doubt. The Appellate Court in its said Judgment dated 11.01.2018 at Para 33 and 34, (Annexure-II) observed as follows:
"33. "In order to convict a person for a serious criminal offence like dowry death, prosecution is obliged to prove beyond reasonable doubt of each and every element and ingredient constituting the offence. Even if any of the essential ingredients is found absent, the offence cannot be held to be completed and the accused cannot be convicted in absence of proving all the essential ingredients constituting the offence. In the instant case, although prosecution has been able to prove that the death of the victim occurred within seven years of marriage, prosecution evidence is found to be grossly inadequate to establish the other vital ingredients to attract Section 304-B IPC, namely, the harassment and cruelty meted out to the victim for demand of dowry soon before the death and as such the conviction and sentence of the accused appellant (the present petitioner), cannot be maintained.
34. Accordingly, the appeal is allowed and conviction and sentence of the accused/appellant (the petitioner herein) is set aside. Bail bond if any stands discharged."
16) From the above it is clear that the accused appellant, i.e., petitioner herein was acquitted from the charge of criminal offence against him, purely on merit, but not on benefit of doubt, as the prosecution failed to prove the guilt of the petitioner beyond all reasonable doubt.
17) In the case of Avinash Sadashiv Bhosale -Vs- Union of India, reported in (2012) 13 SCC 142, the Hon'ble Supreme Court have held that - proceedings in a criminal case and the departmental proceedings operate in distinct and different jurisdictional areas. Whereas in the departmental proceedings, where a charge relating to misconduct is being investigated, the factors operating the mind of the disciplinary authority may be many such as enforcement of discipline or to investigate the level of integrity of the delinquent or the other staff, the standard of proof required in those proceedings required is also different than that required in a criminal case. While in the departmental proceeding the standard of proof is one of preponderance of the probabilities, whereas in a criminal case, the charge has to be Page No.# 6/8 proved by the prosecution beyond all reasonable doubt. The little exception may be where the departmental proceedings and the criminal case are based on the same set of facts and the evidence in both the proceedings is common without there being a variance.
18) The Hon'ble Supreme Court in the case of Deputy Inspector General of Police -Vs- S. Samuthiram, reported in (2013) 1 SCC 598 have held that 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. 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.
19) It is not the case of the respondent SEBA that termination of the petitioner from service was on the basis of a finding in a disciplinary proceeding initiated against him with regard to his misconduct, for his involvement in the criminal case and on the basis of preponderance of probabilities in the said disciplinary proceeding. Respondent SEBA accepted that it terminated the service of the petitioner because of his conviction in the said criminal case and on the basis of the finding of the Trial Court in the criminal proceeding Sessions Case No. 266(KG) of 2009. It is already noted that respondent SEBA did not file any affidavit in the matter nor placed any materials before Court in support of the impugned orders in terminating the service of the petitioner. The respondent SEBA did not state and/or submit nor could show anything before the Court in this proceeding that it had initiated a different/separate disciplinary proceeding against the petitioner for his involvement in the said criminal case, noted above, in which after proper finding following the due procedure, he was terminated from service.
20) It is seen that only because he was arrested and was sent to judicial custody in a criminal case, the petitioner was initially placed under suspension and later, when he was convicted by the Trial Court and sentenced for seven years, he was terminated from service, Page No.# 7/8 but not for any independent finding in a disciplinary proceeding initiated against him for his misconduct. Therefore, the observation made by respondent SEBA rejecting to reinstate the petitioner in service by its communication dated 14.05.2018 (Annexure-IV) on the ground that "Acquittal in the criminal case does not automatically entitle accused for re-instatement" is not applicable in the present case as the petitioner was not terminated from service by SEBA on the basis of a finding in an independent disciplinary proceeding conducted by it.
21) In the case of Nar Singh Pal -Vs- Union of India, reported in (2000) 3 SCC 588, the Hon'ble Apex Court have held that - " since the appellant was acquitted in the criminal case and it was a clean acquittal, the stigma attached to him of having been prosecuted in a criminal case should have been treated to have disappeared and no argument can be allowed to be raised for justifying the order of dismissal on the ground of appellant's involvement in a criminal case."
22) It is true that the mere acquittal of an employee by a criminal Court has no impact on the disciplinary proceedings initiated by the Department. But in the case in hand since the petitioner has been acquitted on merit of the case as the prosecution failed to prove his guilt beyond all reasonable doubt and in the absence of any finding of misconduct in service against the petitioner in a disciplinary proceeding conducted by his employer, i.e., the respondent SEBA with regard to his alleged involvement in the criminal case, the Court is of the view as well as the natural consequence would be that the petitioner is entitled to be reinstated in service.
23) After hearing the learned counsels for the parties and considering the entire aspect of the matter, the Speaking Order No. SEBA/EST/17/98/2975-3000 dated 23.11.2012 issued by respondent SEBA terminating the service of the petitioner w.e.f., 26.09.2012 (Annexure-I) as well as respondent SEBA's communication No. SEBA/EST/17/98/130 dated 14.05.2018 rejecting the representation of the petitioner dated 28.02.2018, rejecting to reinstatement the petitioner in service (Annexure-IV), being not tenable in law, are hereby set aside and quashed.
24) However, on his reinstatement in service, the petitioner shall not be entitled to any back wages, from 26.09.2012, the date when he was convicted by the Trial Court in said Page No.# 8/8 Sessions Case No. 266(KG)/2009 to 14.05.2018, the date on which respondent SEBA rejected to reinstate the petitioner in service (Annexure-IV), while rejecting the representation of the petitioner dated 28.02.2018 (Annexure-III), which the petitioner submitted after his acquittal in the criminal case by the Appellate Court.
25) Further, the petitioner shall also not entitle to any other pay during his suspension period i.e., w.e.f. 19.09.2008 to 26.09.2012, excepting the subsistence allowances as per his entitlement. But it is made clear that the period from 19.09.2008, i.e., the date from which respondent SEBA by order dated 24.09.2008 placed the petitioner under suspension to the date of his reinstatement in service, the said period shall be treated for the purpose of continuity in service of the petitioner and for whatever benefits that may ensue to him in the service, including the length of service for the purpose of pension.
26) The petitioner is directed to submit a fresh representation along with a certified copy of this order for his reinstatement in service before the respondent SEBA on or before 20.02.2021 obtaining necessary acknowledgment from the said authority in that regard.
27) Subject to the filing of such representation by the petitioner as directed above, the respondent SEBA forthwith shall reinstate the petitioner in his service in accordance with law.
28) With the above observation and direction, this writ petition stands allowed to the extent above.
JUDGE Comparing Assistant