Sanjay Saxena vs The State Of Madhya Pradesh
2022 Latest Caselaw 13545 MP

                                     1
             IN THE HIGH COURT OF MADHYA PRADESH
                          AT GWALIOR
                                BEFORE
             HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
                         ON THE 14th OF OCTOBER, 2022

                     WRIT PETITION No. 1990 of 2018

         BETWEEN:-
         SANJAY SAXENA S/O SHR PREM BIHARI
         SAXENA, AGED ABOUT 47 YEARS, OCCUPATION:
         PRIVATE JOB R/O CHOPRA, ANDAR QILA,
         VIDISHA (MADHYA PRADESH)

                                                                  .....PETITIONER
         (BY SHRI D.S. RAGHUVANSHI - ADVOCATE)

         AND
1.       THE STATE OF MADHYA PRADESH THROUGH
         THE PRINCIPAL SECRETARY, DEPARTMENT OF
         SCHOOL EDUCATION, GOVT. OF M.P., VALLABH
         BHAWAN, BHOPAL (MADHYA PRADESH)

2.       THE COLLECTOR, DISTRICT VIDISHA (MADHYA
         PRADESH)

3.       THE DISTRICT EDUCATION OFFICER, DISTRICT
         VIDISHA (MADHYA PRADESH)

4.       JANPAD PANCHAYAT VIDISHA THROUGH ITS
         CHIEF EXECUTIVE OFFICER

                                                                .....RESPONDENTS
         (BY SHRI A.K. NIRANKARI - GOVERNMENT ADVOCATE)

      Th is petition coming on for hearing this day, th e court passed the
following:
                                      ORDER

This petition under Article 226 of the Constitution of India has been filed seeking the following reliefs:-

"(i) That, the present petition filed by the petitioner may kindly

be allowed;

(ii) That, in the light of the order of acquittal dated 10.09.2015, the respondents may kindly be directed to henceforth recall the order dated 7.3.2009 Annexure P/5 by which the services of the petitioner were terminated for the same allegation.

(iii) That, other consequential benefits like arrears of salary, backwages etc. may kindly be directed to be extended to the petitioner with interest at the rate of 12% per annum.

(iv) That, any other just, suitable and proper relief, which this Hon'ble Court deems fit, may also kindly be granted to the petitioner.

Costs be also awarded in favour of the petitioner."

The facts of the case, in short, are that the petitioner was working as Samvida Shala Shikshak Class-II. Certain text books which were required to be distributed free of costs to the students were found loaded in vehicle bearing Registration No.MP04-K2691 and the petitioner is alleged to be the owner of the said vehicle.

Accordingly, not only the FIR was lodged but a notice dated 27.01.2009 was also issued calling upon the petitioner to show cause as to why his contractual service may not be terminated for the reason that the books meant for distribution to poor students under the Sarv Shiksha Abhiyan were found on the loading vehicle No.MP04-K2691 belonging to the petitioner.

It appears that the petitioner submitted his reply claiming that the said vehicle was being operated in partnership with one Shiv Kumar Sisodiya and the vehicle was in possession of the driver Suresh Kumar Ahirwar.

The reply submitted by petitioner was not found to be convincing and

accordingly, another show cause notice dated 27/01/2009 was issued to the petitioner calling upon to explain as to why his services may not be discontinued. The petitioner filed his reply dated 10/02/2009 and clarified that the vehicle in question is in the partnership with Shiv Kumar Sisodiya. He also submitted a contract agreement with driver to show that the vehicle was given to the driver on an agreement. He vaguely denied the allegation that the books meant for distribution to poor students under Sarv Shiksha Abhiyan was sent to scrap dealer by the petitioner.

The reply submitted by the petitioner was not found to be satisfactory and accordingly, by order dated 07.03.2011, the contractual services of the petitioner were discontinued.

Being aggrieved by the said order, the petitioner preferred W.P.No.1526/2009 which was dismissed by order dated 24.06.2015.

It is submitted that a criminal case was pending against the petitioner which has resulted in acquittal of the petitioner by judgment dated 10.09.2015 passed by Second Additional Sessions Judge, Vidisha in S.T. No.249/2009. Thereafter, the petitioner submitted a representation dated 20.10.2015 for his reinstatement on the ground of his acquittal. It is the case of the petitioner that the said representation is still pending and has not been decided.

Per contra, the petition is vehemently opposed by the counsel for the

State. It is submitted that W.P. No.1526/2009 was dismissed by order dated 24.06.2015 with a clear observation that since the maximum period prescribed under contractual appointment is already over, therefore, reinstatement of petitioner is not possible. It was also taken note of that the petitioner has also admitted the vehicle in question belongs to him. It was also held that the allegations of handing over the text books meant for distribution to poor

students were found from the custody of prescribed dealer is also a serious matter which cannot be done without the connivance of Government Officials. It is further submitted that the said order has attained finality and it was never challenged by the petitioner. It is further submitted that since the petitioner was initially appointed for a period of three years with yearly assessment of his work and his contractual period was extendable by a further period of three years subject to the evaluation of his work and, thus, the maximum period of contractual appointment as per the order dated 21.2.2007 was six years and since the said period had already expired much prior to decision in W.P. No.1526/2009, therefore, this Court came to conclusion the maximum period prescribed under contractual appointment is already over and thus, no reinstatement is possible. It is further submitted that it is well established principle to law that any finding given in the criminal trial has no bearing on the departmental proceedings because of the fact that the degree of proof in a criminal trial is completely different from that of the departmental proceedings . In a criminal trial, the charges are to be proved beyond reasonable doubt, whereas in the departmental proceedings, the charges are to be decided on the basis of preponderance of probabilities.

In the present case, the petitioner himself has admitted that he is proprietor of vehicle in question and he had not specifically denied the fact that the text books were not found in the vehicle.

Heard learned counsel for the parties.

The first question for consideration is as to whether the present petition is barred by doctrine of res judicata or not. The petition W.P.No.1526/2009 filed by the petitioner was already dismissed by this Court with the following

observations :-

"4. In the opinion of this Court, the contract period of the petitioner is already over. In other words, during the pendency of this petitioner, maximum period prescribed under the contractual appointment / Annexure P/2 is over. Thus, no reinstatement of petitioner is possible. The petitioner has admitted that he is co-owner of the petitioner. This is a serious matter that textbooks published by M.P. Text Book Corporation which were to be distributed amongst poor students, were found from the custody of Kabadi. This cannot be done without the connivance of Government employees. Admittedly, petitioner's vehicle was involved in the said incident. Thus, in my view, respondents have rightly discontinued the petitioner. I find no reason to interfere in discretionary and equityjurisdiction of this court flowing from Article 226 of the Constitution.

5. Petition fails and is hereby dismissed."

Once this Court has come to a conclusion that the maximum period prescribed under the contractual appointment is over and no reinstatement of petitioner is possible, then the whether the petitioner was subsequently acquitted in criminal trial or not, will not make any difference. Furthermore, because of difference in degree of proof, the acquittal of delinquent officer in a criminal trial would not ipso facto result in reinstatement or quashment of the departmental proceedings.

Considering the totality of the facts and circumstances of the case, since order dated 24.06.2015 passed in W.P. No.1526/2009 has attained finality

specifically the observations that the maximum period of contractual appointment prescribed under the appointment order was already over in the year 2013, reinstatement is not possible, this Court is of the considered opinion that this petition is barred by principle of res judicata.

Accordingly, the petition fails and is hereby dismissed.

(G.S. AHLUWALIA) JUDGE Monika

MONIKA SHARMA 2022.10.17 10:36:00 +05'30'