Himachal Pradesh High Court
State Of Hp & Ors vs Manish Kumar on 8 July, 2024
Author: Vivek Singh Thakur
Bench: Vivek Singh Thakur
( 2024:HHC:4830 )
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
.
LPA No. 181 of 2024
Date of decision: 8th July, 2024.
State of HP & ors. ...Appellant
Versus
Manish Kumar ...Respondent.
Coram
Hon'ble Mr. Justice Vivek Singh Thakur, Judge.
Hon'ble Mr. Justice Ranjan Sharma, Judge.
Whether approved for reporting? Yes
For the Appellant: Mr. Baldev Negi, Additional Advocate
General.
For the Respondent: Mr. Arun Raj, Advocate vice Mr. Tanuj
Thakur, Advocate.
Vivek Singh Thakur, Judge (Oral)
This appeal has been preferred by the State against the judgment
dated 7.07.2023 passed in CWP No. 4398 of 2021 titled Manish Kumar vs.
State of HP, whereby petition has been allowed with following directions:-
"In view of the above, the writ petition is allowed to the
limited extent that respondent No.3/competent authority is
directed to consider and decide the case of the petitioner for his
re-instatement/re-engagement in accordance with law within a
period of three weeks from today."
2 Parties to the lis are being referred according to their status in the
Writ Petition for convenience.
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3. Petitioner had approached the Court by filing CWP No. 4398 of
2021 on the ground that respondent/State had refused to consider his
representation praying for his re-engagement/re-instatement, only on the
.
ground of pendency of Criminal Appeal preferred by State against the acquittal
of petitioner in a criminal case in case FIR No. 66 of 2013 registered in Police
Station Dalhousie, District Chamba.
4. Learned Single Judge has allowed the petition on the ground that
mere pendency of appeal cannot be taken as a ground for not considering the
prayer of petitioner for taking him back in service when he has been acquitted
of the charge framed against him because acquittal does not get annihilated by
mere pendency of appeal.
5 Similar issue has already been decided by the Division Bench of
this Court in CWP No. 191 of 1984 titled Surinder Kumar vs. State of HP
decided on 28th May, 1984 (ILR 1984 HP 243; 1984(2) All India Service Law
Journal 347) wherein it has been observed as under:-
"4. Pursuant to the investigations held consequent upon the
lodgment of the first information report, two separate challans
were presented by the prosecuting agency against the petitioner
each for an offence punishable under Section 409 IPC. The Chief
Judicial Magistrate, Solan, who tried those two cases, convicted
the petitioner under Section 409 IPC and sentenced him to
imprisonment for a term of one year and a fine of Rs.2000/- and,
in default, to rigorous imprisonment for six months, in each case.
The orders of conviction and sentence were passed on April 11,
1980. The petitioner preferred two separate appeals against the
said orders of conviction and sentence. Those appeals were
heard by the Sessions Judge, Solan, Sessions Division at Nahan.
By two separate judgments and orders, rendered on November
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30, 1981, the appeals were accepted and the petitioner was
acquitted in both the cases.
................
12. It may be recalled in this connection that as a result of the
.
lodgement of the first information, the petitioner was detained in
custody and that after investigation, he was put up for trial in two
cases before a criminal court. The trial court convicted him but
the appellate court acquitted him in both the cases. The orders of
acquittal are indubitably under challenge in the High Court. The
preferment of acquittal appeals cannot, however, be regarded as
the continuance of the trial. The trials have concluded with the
judgment of acquittal (See State vs. B.C. Dwivedi. The initial
presumption of innocence must, therefore, be regarded as having
been doubly reinforced by orders of acquittal passed in favour of
the petitioner. Under such circumstances, the continued operation
of the order of suspension as from the date of acquittal cannot be
regarded as reasonable, fair and just. Merely because the
petitioner was, at one point of time, detained in custody for a
period exceeding forty-eight hours, he cannot be kept under
suspension perpetually, especially when the allegations on the
basis of which he was detained and which ultimately became the
subject matter of two trials before the criminal court, are found by
a court of competent jurisdiction to have been not established
beyond reasonable doubt. Under the circumstances, in our
opinion, on a rational and just view of the facts and circumstances
of the case, the Petitioner is required to be re-instated in service
on and with effect from the date of the orders of acquittal. If the
acquittal appeals are allowed and the Petitioner is convicted,
there is nothing to prevent the competent authority from dealing
with the Petitioner in accordance with law. If, on the other hand,
the acquittal appeals fail and a departmental inquiry, if any, is
ordered to be instituted on the same charges, it would not be fair
and just and reasonable to suspend the Petitioner once again in
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view of the initial presumption of innocence having been
reinforced twice over.
13. It would be pertinent, in this connection, to refer to the
decision in Corporation of Nagpur City vs. Ramachandra 1981(2)
.
SCC 714. In that case, the order of suspension was passed by
the Municipal Commissioner on September 23, 1974. The order
was confirmed by the Corporation on the same day. The
suspension was ordered in connection with a departmental
enquiry relating to two accidents which occurred during the
construction of a stadium which was being looked after by the
delinquents and which resulted in the death of seven persons and
injuries to eight others. A complaint was also filed before the
police as a result of which a chargesheet u/s 304A IPC, was filed
against the delinquents on September 25, 1976. In view of the
charge-sheet submitted by the police, another order of
suspension was passed by the Municipal Commissioner on
January 13, 1977 with effect form October 8, 1976. The
delinquents filed an unsuccessful appeal to the departmental
appellate authority and thereafter moved a writ petition which was
allowed and the order of suspension was quashed on the ground
that the competent authority to pass the order of suspension was
the Corporation itself and not the Chief Executive Officer. On
appeal, the Supreme Court held that the Municipal Commissioner
was fully competent to suspend the delinquents and that,
therefore, the decision rendered in the writ petition was not
sustainable. The Supreme Court, however, proceeded to make
the following observations:
"The other question that remains is if the Respondents
are acquitted in the criminal case whether or not the
departmental inquiry pending against the Respondents
would have to continue. This is a matter which is to be
decided by the department after considering the nature of
the findings given by the criminal court....If, however, the
authority feels that there is sufficient evidence and good
grounds to proceed with the inquiry, it can certainly do so.
5 ( 2024:HHC:4830 )
In case the Respondents are acquitted, we direct that the
order of suspension shall be revoked and the
Respondents will be reinstated and allowed full salary
thereafter even though the authority chooses to proceed
with the inquiry....If the Respondents are convicted, then
.
the legal consequences under the rules will automatically
follow. (Underlining supplied)
The direction given in the aforesaid case indicates that, ordinarily,
when a delinquent, who has been hauled up before a criminal
court for trial on certain charges, is acquitted, the order of
suspension should be revoked and the delinquent should be
reinstated, even if the authority chooses to proceed depart-
mentally against the delinquent. The view which we are herein
inclined to take finds support in the observations made and
directions given in the aforesaid case by the Supreme Court."
6 Learned Singled Judge has considered the judgments of the
Supreme Court passed in Special Leave Petition (C) No. 678 of 2021
(Imtiyaz Ahmad Malla versus The State of Jammu and Kashmir and
others) and Inspector General of Police vs. S. Samuthiram reported in
(2013)1 SCC 598 in right perspective. We do not find any illegality, irregularity
or perversity in the findings arrived at by learned Single Judge that during the
pendency of appeal against acquittal, case of employee cannot be rejected or
refused to be considered on the ground of pendency of appeal against
acquittal.
7 The direction passed by learned Single Judge is only to consider
and decide the case of petitioner for his re-instatement/re-engagement in
accordance with law within a period of three weeks. In case, respondents/
Department/State has valid ground for not considering the petitioner fit for
reinstatement/re-engagement in accordance with law, but not for mere
pendency of criminal appeal, they have not been prohibited for doing so.
6 ( 2024:HHC:4830 )
8 At this stage, it has been informed by learned Additional Advocate
General that, as a matter of fact, in compliance of impugned judgment dated 7 th
July, 2023 the claim of petitioner for his reinstatement/re-employment has been
.
considered in accordance with law and vide Office Order dated 19 th February,
2024 claim of petitioner stands rejected by the Director, Animal Husbandry,
Himachal Pradesh for the reasons assigned in Office Order but not for
pendency of Criminal Appeal.
9 In aforesaid circumstances, the appeal deserves to be dismissed
being devoid of any merit. Needless to say that petitioner shall have liberty to
avail appropriate remedy including filing fresh petition against Office Order
dated 19th February, 2024 for redressal of his grievance, if any, survives.
Accordingly, appeal along with application is dismissed.
(Vivek Singh Thakur),
Judge.
8th July, 2024. (Ranjan Sharma),
(ms) Judge.
