The State Of Jharkhand vs Laxman Prasad
2023 Latest Caselaw 1826 Jhar

                                         1


             IN THE HIGH COURT OF JHARKHAND AT RANCHI
                                  L.P.A. No. 94 of 2020
                                          With
                                  I.A. No. 1318 of 2020
     1. The State of Jharkhand.
     2. The Secretary, Department of Industries, Government of Jharkhand, Nepal
        House, P.O. & P.S. Doranda, District Ranchi.

     3. The Director, Department of Industries, Government of Jharkhand, Nepal
        House, P.O. and P.S. Doranda, District Ranchi.

                                                     ... ... Respondents/Appellants
                                          Versus
      Laxman Prasad, son of Late Munni Narayan Prasad, resident of Hirapur
      Police Line, Baoripara, P.O. and P.S. Hirapur, District Dhanbad.
                                                          ... ... Petitioner/Respondent
                                           -------

CORAM: HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD HON'BLE MR. JUSTICE SUBHASH CHAND

-------

For the Appellant : Ms. Soumya S. Pandey, AC to AAG-I For the Respondent : None

----------------------------

ORAL JUDGMENT 06/Dated: 01st May, 2023

I.A. No. 1318 of 2020:

1. This interlocutory application has been filed for condoning the delay of 152 days, which has occurred in preferring this appeal.

2. No counter affidavit to the delay condonation application has been filed.

3. Heard the learned counsel for the appellants.

4. Having heard the learned counsel for the appellants and considering the statements made in this application, we are of the view that the appellants were prevented by sufficient cause in preferring this appeal within time.

5. Accordingly, this interlocutory application is allowed and the delay of 152 days in preferring this appeal, is hereby condoned.

L.P.A. No. 94 of 2020:

6. The instant appeal under clause 10 of the letters patent is directed against the order/judgment dated 07.08.2019 passed by the learned Single Judge in W.P.(S) No. 4025 of 2013, whereby and whereunder, the order dated

03.08.2004 by which the writ petitioner has been dismissed from service on charge of conviction in a criminal case, has been quashed and set aside by allowing the writ petition.

7. The brief facts of the case as per the pleading made in the writ petition which require to be enumerated herein, read as under:

The writ petitioner while working as Adheshpal (Peon) in the Department of Industries at Dhanbad was subjected to a criminal case registered under Section 420 of IPC and under Section 7 and 13(1)(d) of Prevention of Corruption Act. The aforesaid criminal proceeding culminated into the judgment of conviction dated 19.12.2002.

The disciplinary authority although had initiated a departmental proceeding by serving the memorandum of charge but the said departmental proceeding was kept at hold awaiting for the outcome of the criminal case. The disciplinary authority, after the judgment of conviction having been passed, has passed the order of dismissal on 03.08.2004.

The writ petitioner-respondent challenged the judgment of conviction which finally resulted into his acquittal. The writ petitioner challenged the order of dismissal dated 03.08.2004 on the ground that since the dismissal order is based upon the conviction and the very basis of the order of dismissal, i.e., conviction in the criminal case, has already been quashed and set aside by its reversal with the order of acquittal, therefore, the order of dismissal is required to be recalled.

The learned Single Judge, while allowing the writ petition vide order dated 07.08.2019, has quashed the order of dismissal dated 03.08.2004 and remitted the matter to the respondent no.3, appellant no.3 herein, so as to pass afresh order in accordance with law on the basis of the observation made in the order within a period of eight weeks from the date of receipt/production of copy of the order. The same is the subject matter of the instant appeal.

8. Ms. Soumya S. Pandey, learned AC to AAG-I appearing for the appellant-

State has submitted that it is not a case where the departmental proceeding has not been initiated rather the departmental proceeded had been initiated

by issuance of memorandum of charge against the writ petitioner but on the request made by the writ petitioner for staying the departmental proceeding during the pendency of the criminal case, the departmental proceeding was kept at hold.

It has been submitted that when the departmental proceeding was kept at hold, the criminal case has been resulted into the judgment of conviction. The disciplinary authority after knowing about the fact of the judgment of conviction, has passed the order of dismissal on 03.08.2004. Therefore, submission has been made that when the departmental proceeding has been kept at hold on the request made by the writ petitioner, the writ petitioner cannot be allowed to take advantage of the acquittal in the criminal case for the purpose of recall of the order of his dismissal.

According to the learned State counsel, the aforesaid aspect of the matter had not been considered, hence, the instant appeal.

9. This Court has heard the learned counsel for the appellant, perused the documents available on record as also the finding recorded by the learned Single Judge.

10. This Court, before entering into the legality and propriety of the impugned judgment, deems it fit and proper to refer certain judicial pronouncement regarding the power of the disciplinary authority to initiate a departmental proceeding in course of pendency of judicial proceeding as has been held by the Hon'ble Apex Court in Depot Manager Andhra Pradesh State Road Transport Corporation Vrs. Md. Yousuf Miya and Ors., reported in (1997) 2 SCC 699, wherein the Hon'ble Apex Court has been pleased to make difference between the purpose of departmental enquiry and criminal trial while holding therein it has been laid down that purposes of departmental enquiry and the prosecution are two different and distinct aspects. The criminal prosecution is launched for an offence in violation of duty, the offender owes to the society or for breach of which law has provided that the offender shall make satisfaction to the public, so crime is an act of commission in violation of law or omission of public duty.

The departmental enquiry is to maintain discipline in service and efficiency of public servant. It would, therefore, be expedient that the disciplinary proceedings are conducted and completed as expeditiously as possible. It is not, therefore, desirable to lay down any guideline as inflexible rules in which the departmental proceeding may or may not be stayed pending trial in criminal case against the delinquent officer. Each case requires to be considered in the backdrop of its own facts and circumstances.

There would be no bar to proceed simultaneously with the departmental proceeding and trial of a criminal case unless the charge in a criminal trial is of grave nature involving complicated questions of fact and law. Offence generally implies infringement of public as distinguished from mere private right punishable under criminal law, when trial for criminal offence is conducted it should be in accordance with the proof of offence as per the evidence defined under the provisions of the Evidence Act. Converse in the case of departmental enquiry in a departmental proceeding relates to conduct or breach of duty of the delinquent officer who punished him for his misconduct defined under the relevant statute/rule or law that strict standard of rule or applicability of Evidence Act stands excluded in a settled legal position.

The enquiry in the departmental proceeding relates to the conduct of the delinquent officer and proof in that behalf is not as high as in an offence in criminal charge. It is seen that invariably the departmental enquiry has to be conducted expeditiously so as to effectual efficiency in public administration and the criminal trial will take its own course. The nature of evidence in criminal trial is entirely different from the departmental proceeding.

In the former, prosecution is to prove its case beyond reasonable doubt under touch stone of human conduct. The stand of proof in the departmental proceeding is not the same as in the criminal trial. The evidence is also on different stand point of Evidence Act. The evidence required in the departmental enquiry is not regulated on the facts under these circumstances, what is required to be seen is whether the departmental enquiry would seriously prejudice the delinquent employee

in his defence at the trial in a criminal case. It is always a question of fact to be considered in each case depending on its own facts and circumstances.

In other judgment rendered by Hon'ble Apex court in State of Rajasthan Vs. B.K. Meena and Others, reported in (1996) 6 SCC 417 the same view has been reiterated by the Hon'ble Apex court.

In Capt. M. Paul Anthony Vs. Bharat Gold Mines Ltd. and Another, reported in (1999) 3 SCC 679, the Hon'ble Apex Court while dealing with the situation of simultaneous continuation of departmental proceeding visà-vis criminal proceeding, has arrived at following conclusions"

(i) Departmental proceeding as well as proceeding in a criminal case can proceed simultaneously as there is no bar in their being conducted simultaneously though separately.

(ii) If the departmental proceeding and the criminal case are based on identical and similar set of facts and the charges in the criminal case against the delinquent employee involves complicated question of law and fact, it would be desirable to stay the departmental proceeding till conclusion of the criminal case.

(iii) Whether the nature of the charge in a criminal case is grave and whether complicated question of facts and law involved in that case will depend upon the nature of offence, the nature of a case launched against the delinquent employee on the basis of evidence and the material facts against him during investigation or as reflected in the charge.

(iv) The factors mentioned at (i) and (iii) above cannot be considered in isolation to stay the departmental proceeding but due regard has to be given to the facts that the departmental proceeding cannot be unduly delayed.

(v) If the criminal case does not proceed or disposal is unduly delay, the departmental proceeding, even if there is stay on account of pendency of the criminal case, can be resumed and proceed with so as

to conclude them at an early date, so that the employee if found not guilty his honour may be protected and in case he is found guilty, the administration may get rid of him at an earliest.

In Stanzen Toyotetsu India (P) Ltd. Vs. Girish V. and Others, reported in (2014) 3 SCC 636, their lordships of Hon'ble Apex Court, while dealing with the situation of continuation of simultaneous proceeding both in departmental as well as criminal proceeding, has been pleased to hold by taking note of all the earlier judgments rendered by it, holding at paragraph 16 therein which reads as follows:--

"16. Suffice it to say that while there is no legal bar to the holding of the disciplinary proceedings and the criminal trial simultaneously, stay of disciplinary proceedings may be an advisable course in cases where the criminal charge against the employee is grave and continuance of the disciplinary proceedings is likely to prejudice their defence before the criminal court. Gravity of the charge is, however, not by itself enough to determine the question unless the charge involves complicated question of law and fact. The court examining the question must also keep in mind that criminal trials get prolonged indefinitely especially where the number of accused arraigned for trial is large as is the case at hand and so are the number of witnesses cited by the prosecution. The court, therefore, has to draw a balance between the need for a fair trial to the accused on the one hand and the competing demand for an expeditious conclusion of the ongoing disciplinary proceedings on the other. An early conclusion of the disciplinary proceedings has itself been seen by this court to be in the interest of the employees."

It is evident from all the judgments referred herein above that there is no bar in simultaneous continuation of departmental proceeding as well as criminal proceeding and each and every case has to be adjudged on the related facts of the case.

11. The reference of the judgment of the Hon'ble Apex Court is required to be made that the departmental proceeding if has been kept at hold on the request made by the writ petitioner and when the judgment of conviction has been passed, then it was left open upon the appellant-State of Jharkhand to initiate a fresh departmental proceeding on the basis of the memorandum of charge already issued.

But, the State of Jharkhand has not chosen to proceed further with the departmental proceeding rather the order of dismissal has been passed on the basis of the judgment of conviction and the said judgment of conviction has been reversed by the appellate court with the judgment of acquittal.

12. The case of the writ petitioner is that once the order of dismissal which was based upon the judgment of conviction is no more in existence, the order of dismissal cannot be said to be legal and proper and the learned Single Judge on appreciation of the aforesaid fact has found substance in the aforesaid argument and by taking into consideration the fact that the order of dismissal has been based upon the judgment of conviction and there is no other ground as referred in the impugned order, as such, the learned Single Judge has quashed the order of dismissal.

13. The law is well settled as to whether on the basis of acquittal in the criminal case, there may be reinstatement or not as per the judgment rendered by the Hon'ble Apex Court in State Bank of India and Anr. vs. Mohammed Abdul Rahim, (2013) 11 SCC 67 wherein at paragraph-6, it has been held that if the very basis of the order of dismissal is the judgment of conviction and the judgment of conviction itself has been reversed to the judgment of acquittal, then, there is no justification in carrying on the order of dismissal. Para-6 of the said judgment reads as under:

"6. On the other hand, the learned counsel for the respondent has relied on the norms under the Sastry Award governing disciplinary action in respect of employees of the public sector banks. Pointing out the relevant clauses of the Sastry Award, it is argued that upon the acquittal of the employee concerned from a criminal charge it is open for the appellant Bank to initiate a departmental proceeding which, admittedly, in the present case was not so done. The learned counsel has pointed out that in such a disciplinary proceeding, if the charges against the acquitted employee are found to be substantiated, necessary disciplinary action can be invoked. However, in that event the employee concerned would be entitled to the benefit of full pay during the suspension period, if any. In the present case, as the provisions of the Sastry Award were not invoked and no departmental proceeding was initiated, the acquittal of the respondent has attained finality and, in effect would wipe out the initial conviction thereby entitling the respondent to back wages."

14. Although the facts of the case in hand is not related to Sastry Award but the principle as has been laid down by the Hon'ble Apex Court regarding the effect of acquittal in the order of dismissal if the dismissal order had not been passed on conclusion of departmental proceeding, therefore, the same is being applied herein taking into consideration the fact that herein also the order of dismissal is not based upon the departmental proceeding rather the decision is in consequence of the conviction only.

15. This Court, on the basis of the discussion made hereinabove and after going through the finding recorded by the learned Single Judge in the impugned order, is of the view that it is not a case where the appellant- State of Jharkhand has initiated a departmental proceeding rather the departmental proceeding has been kept at hold awaiting for the outcome of the criminal case and in the criminal case, the judgment of conviction has been passed but even after the conclusion of the criminal proceeding, the departmental proceeding which was kept at hold has not been revived, thus, the very basis of the order of dismissal is the judgment of conviction and once the judgment of conviction has been set aside, the very basis of the order of dismissal will be said non-est, hence, there is no justification in carrying on with the order of dismissal.

16. The learned Single Judge after taking into consideration the aforesaid aspect of the matter has quashed the order of dismissal, which according to the considered view of this Court is correct and cannot be said to suffer from error.

17. Accordingly, the instant appeal fails and is dismissed.

18. Pending interlocutory application(s), if any, also stands disposed of.

(Sujit Narayan Prasad, J.)

(Subhash Chand, J.) Saurabh/-

A.F.R.