Prabhunath Mishra vs State Of U.P. And 6 Ors.
2018 Latest Caselaw 3762 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

	 									   AFR
 
Court No. - 6
 

 
Case :- WRIT - A No. - 57028 of 2016
 

 
Petitioner :- Prabhunath Mishra
 
Respondent :- State Of U.P. And 6 Ors.
 
Counsel for Petitioner :- Amar Nath Bhargava,Prashant Shukla,Vishnu Pandey
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Yashwant Varma,J.

Order on Amendment application

Amendment application is allowed.

Let amendment in the relief clause be carried out forthwith.

Order on the writ petition

Heard learned counsel for the petitioner and the learned Standing Counsel.

This petition as originally preferred sought a direction for the grant of retiral benefits along with other financial dues to the petitioner. By way of the amendment application, a further challenge has been raised to an order dated 23 June 2016, in terms of which the claim of the petitioner to similar effect was negatived by the respondents. This order came to be passed pursuant to directions issued by the Court in an earlier writ petition preferred by the petitioner being W.P. No. 24159 of 2007. The ground taken by the respondents in the order impugned is that the petitioner has not been honorably acquitted in the criminal case and, therefore, there arises no occasion for the order of dismissal being recalled and consequential reliefs being granted.

However before proceeding further, it would be relevant to note the following salient facts in the backdrop of which the claim of the petitioner must be necessarily adjudged.

The petitioner, who was in the service of the respondents, was dismissed from service on 23 July 1988. This order of dismissal was challenged by him in W.P. No. 25031 of 1988. Although on this writ petition an interim order initially operated, the Division Bench proceeded to dismiss the writ petition with the following significant observations: -

"We have considered the submissions of learned counsel for the parties and perused the record.

Copy of the order of dismissal, which has been brought on the record along with the counter affidavit, mentions all relevant facts including issue of charge-sheet containing eleven charges, supplementary charge-sheet, inquiry reports dated 30th September, 1985 and 7th August, 1987, letters of the petitioner dated 25th December, 1985 and 7th August, 1986 asking for showing the documents, which clearly indicate that petitioner was well aware of the enquiry in which he asked for the documents. The petitioner did not file the copy of the dismissal order, rather filed only operative portion of the order referring the same as dismissal order. When the detail order, which was passed for dismissing the petitioner on 23rd July, 1988 was not brought on the record, the Court could not have even looked into the dismissal order while entertaining the writ petition and passing the interim order. The petitioner has challenged the dismissal order dated 23rd July, 1988 and filed the order which was not actual order, the said act of the petitioner is nothing but an act of misleading the Court with intention to obtain a favourable order. The jurisdiction under Article 226 of the Constitution of India is discretionary. The petitioner, who did not come with clean hand and concealed the relevant materials, is not entitled for any indulgence as has been laid down by a Full Bench of this Court in the case of Asiatic Engineering Co. vs. Achhru Ram, reporte in A.I.R. (88) 1951 Allahabad 746. Full Bench of this Court in the in the above case laid down following in paragraph 51:-

"51. In our opinion, the salutary principle laid; down in the cases quoted above should appropriately be applied by Courts in our country when parties seek the aid of the extraordinary powers, granted to the Court under Article 226 of the Constitution. A person obtaining an ex parte order or a rule nisi by means of a petition for exercise of the extraordinary powers under Article 226 of the Constitution must come with clean hands, must not suppress any relevant facts from the Court, must refrain from making misleading statements & from giving incorrect information to the Court. Courts, for their own protection, should insist that persons invoking these extraordinary powers should not attempt, in any manner, to misuse this valuable right by obtaining ex parte orders by suppression, misrepresentation or misstatement of facts. Applying this principle to the pre sent case, we feel that, in this case, the petitioner Company has disentitled itself to ask for a writ of prohibition by material suppressions, misrepresentations & misleading statements which have been found by us above."

This Court taking into consideration the relevant facts passed an order on 24th November, 2004 proposing to direct for prosecution of the petitioner for perjury. The explanation, which has been submitted by the petitioner in paragraph 4 of the supplementary affidavit, is not convincing. The petitioner sought to contend that he was permitted to note the operative portion of the order, which fact was not mentioned in the writ petition, hence the said explanation is only an after thought.

Learned counsel for the petitioner submits that petitioner was also promoted in the year 2003 and has attained the age of superannuation on 30th November, 2004. From the facts, as noted above, we are of the view that petitioner is not entitled for any relief in the writ petition and the writ petition deserves to be dismissed only the ground that he concealed the material facts and filed wrong copy of the dismissal order, which has now been brought on the record along with the counter affidavit. However, looking to the fact that petitioner has already attained the age of superannuation on 30th November, 2004 (on which date this writ petition was dismissed and the dismissal order had revived), we do not propose to direct for any criminal prosecution. We further observe that during the period the petitioner received salary under the interim order of this Court and worked, the said salary be not recovered from the petitioner in view of dismissal of the writ petition upholding the dismissal order.

Sri M.D. Mishra, learned counsel for the petitioner, lastly contended that dismissal order deserves to be set-aside since it is based on the inquiry report which was not supplied to the petitioner. We having taken the view that petitioner is not entitled for any indulgence in the writ petition he having not come with clean hand and having tried to mislead the Court, we do not see any reason to enter into the said submission raised by Sri Mishra regarding dismissal order."

In the meanwhile and post the dismissal of the writ petition, the criminal case appears to have ended with the petitioner being acquitted by judgment dated 19 December 2015. It is in this backdrop that the present writ petition was filed and the reliefs as prayed, are sought.

The submission of learned counsel for the petitioner was that once the criminal court had returned findings on merits and had acquitted the petitioner after a full fledged trial, the same was clearly binding on the disciplinary authorities and it was incumbent upon them to consequently withdraw the order of dismissal. Emphasis was laid on the fact that the judgment rendered by the criminal court would establish that the petitioner was not acquitted on account of benefit of doubt or lack of evidence. According to the learned counsel, since the acquittal was on merits, the submission is that the respondents were bound to withdraw the order of dismissal and grant all consequential reliefs to the petitioner. Learned counsel also emphasized the fact that the charges in the criminal case as well as the departmental proceedings were identical. In view thereof, it was contended that the findings returned by the criminal court would clearly bind and render the order of dismissal liable to be recalled and set aside.

Having heard learned counsel for the parties, this Court finds itself unable to sustain any of the contentions advanced for the following reasons.

As is evident from the decision of the Division Bench extracted hereinabove, the Court clearly held that the petitioner was not entitled to any relief, since he had concealed material facts. The Division Bench, however, bearing in mind the fact that the petitioner had already attained the age of superannuation, desisted from initiating criminal prosecution for perjury. The writ petition was dismissed and the order of dismissal upheld.

It is pertinent to note that the learned counsel for the petitioner has not invited the attention of the Court to any statutory provision or rule which mandated an automatic reinstatement of the petitioner upon being acquitted in the criminal case. However in order to do complete justice to the cause, the Court proceeds to evaluate the contention as advanced independently and on merits. The primary question, which therefore arises, is whether the petitioner's acquittal in the criminal case would render the order of dismissal void and consequently entitle him to claim reinstatement.

The Court finds itself unable to hold that the judgment of the criminal court would result in the effacement of the order of dismissal. Regard must be had to the fact that in the criminal trial, the charge as levelled against the petitioner was liable to be decided on the principle of his guilt being proved and established beyond all reasonable doubt. In departmental proceedings, the authority is liable to test the charges on the preponderance of probability of the charges being correct. Quite apart from the fact that the order of dismissal was not interfered with by the Division Bench, the Court further notices the following observations as entered by the criminal court while recording acquittal:-

"izLrqr izdj.k esa ;g Hkh mYys[kuh; gS fd i=koyh ij vfHk;kstu }kjk 1991 ls 2015 rd yxHkx 24 o"kksZa esa ek= ,d lk{kh ih0MCY;w0&1 lsok fuo`Rr jkeo`{kjke oknh eqdnek dks ijhf{kr djk;k x;kA vfHk;kstu dks vU; lk{kh izLrqr djus gsrq U;k;ky; }kjk vusdks volj fn;s x;s] rFkk dbZ i= izsf"kr fd;s x;s ijUrq vfHk;kstu }kjk dksbZ lk{kh le{k U;k;ky; ugh izLrqr fd;k x;k rFkk ek= ,d lk{kh dk lk{; gh i=koyh ij miyC/k gS] bl lk{kh us vius c;ku esa Lo;a dgk fd rglhynkj eft0 }kjk eq>s fjiksVZ nh x;h] mlh vk/kkj ij ,Q0vkbZ0vkj fd;k x;kA eSaus fnukad 25-06-83 ds fuyEcu dk vkns'k ikfjr fd;k x;k] ijUrq mlesa xcu ls lfEcfU/kr dksbZ vkns'k ugh FkkA vr% lk{kh ds c;ku ls vfHk;qDr ij yxk;s x;s vkjksi v0 /kkjk&409] 420 Hkk0 n0 la0 lkfor ugh gksrs gSA"

As is evident from the above extract of the decision of the criminal court, one of the primary grounds, which weighed in entering a judgment of acquittal, was that in spite of the trial having been pending for more than 24 years, only one witness had been produced and who had failed to provide any evidence in support of the charge which was laid. Viewed in this backdrop, the submission that the acquittal was honorable clearly does not commend acceptance.

In this context, the following observations as entered by the Supreme Court in Baljinder Pal Kaur Vs. State of Punjab1 being apposite are extracted hereunder: -

10. In Commr. of Police v. Mehar Singh [(2013) 7 SCC 685 : (2013) 3 SCC (Cri) 669 : (2013) 2 SCC (L&S) 910] , this Court, in para 24, has observed as under: (SCC p. 699)

"24. ... While the standard of proof in a criminal case is the proof beyond all reasonable doubt, the proof in a departmental proceeding is preponderance of probabilities. Quite often criminal cases end in acquittal because witnesses turn hostile. Such acquittals are not acquittals on merit."

11. In Inspector General of Police v. S. Samuthiram [(2013) 1 SCC 598 : (2013) 1 SCC (Cri) 566 : (2013) 1 SCC (L&S) 229] , this Court, in para 26, has held as under: (SCC pp. 609-610)

"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."

12. In Union of India v. Bihari Lal Sidhana [(1997) 4 SCC 385 : 1997 SCC (L&S) 1076] , this Court has observed that it is true that the respondent was acquitted by the criminal court but acquittal does not automatically gave him the right to be reinstated into the service."

The expression "honourable acquittal" was explained by the Supreme Court in Inspector General of Police v. S. Samuthiram2, as under: -

"Honourable acquittal

24. The meaning of the expression "honourable acquittal" came up for consideration before this Court in RBI v. Bhopal Singh Panchal [(1994) 1 SCC 541 : 1994 SCC (L&S) 594 : (1994) 26 ATC 619] . 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 said that the accused was honourably acquitted."

Bearing the aforesaid principles in mind, it is evident that in order to hold that a person has been honourably acquitted, it must be established that the acquittal was after a full-fledged trial and upon due consideration of the entire prosecution evidence. The acquittal cannot possibly be held to be honourable in a case where the Court was either constrained to enter a judgment of acquittal on account of a prosecution failure to produce sufficient evidence or where witnesses turn hostile. In such a situation, the prosecution must be held to have fallen on technical grounds. In other words, an acquittal cannot be characterized as honourable where the Court is compelled to enter judgment exonerating the accused on account of prosecutorial laxity or indolence.

An honourable acquittal would be one where the prosecution though diligent and meticulous fails to prove the charge. An acquittal would be honourable where the Court upon due consideration of the entire evidence comes to conclude that the charge does not stand proved beyond reasonable doubt.

If the above precepts are kept in mind and the judgment of the criminal court analyzed in that light, it is manifest that the petitioner cannot be recognised to have been honourably acquitted.

In view of the above, this Court finds no merit in the writ petition which shall stand dismissed.

Order Date :- 16.11.2018

VKS