Madhya Pradesh High Court
Ashwani Kumar Kaushik vs The State Of Madhya Pradesh on 16 January, 2025
Author: Vishal Mishra
Bench: Vishal Mishra
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IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VISHAL MISHRA
ON THE 16th OF JANUARY, 2025
WRIT PETITION No. 1941 of 2021
ASHWANI KUMAR KAUSHIK
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Mr. Atul Anand Awasthy - Senior Advocate with Ms. Renu Tiwari -
Advocate for petitioner.
Mr. Jubin Prasad - Panel Lawyer for respondents/State.
ORDER
This petition has been filed assailing show cause notice dated
06.01.2021 (Annexure P/6) whereby the petitioner was asked to show cause
as to why he be not removed from service as his conduct is unbecoming of a
Government servant.
2. It is the case of the petitioner that as he having required qualifications
to be appointed as Shiksha Karmi Grade III, applied for the same in the year
1998. He was found in the merit list. Thereafter, the documents submitted by
the petitioner as well as his candidature were duly verified by the authorities
as well as the police verification was carried out and finding him eligible to
hold the post in question, the appointment order was issued on 07.08.1998.
The petitioner was having an unblemished service record and there were no
complaints as against his working. During his service tenure, certain
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complaints were made against the petitioner by some private persons that he,
on earlier occasion, was prosecuted and later on he was acquitted. It is
pointed out that a criminal case for the offence under Sections 294, 506 Part
II, 148 and 323 read with 149 of IPC was registered against petitioner for the
alleged crime committed on 03.02.2000 in which after registration of
criminal case, he was tried and vide judgment dated 09.01.2009, he was
acquitted. There was no departmental enquiry ever conducted by the
authorities against the petitioner.
3. Thereafter, in one of the property matter, on a false complaint which
was registered by complainant Smt. Asha Tripathi, petitioner was again
prosecuted for offence under Sections 419/34, 420/34, 467/34, 468/34 and
471/34 of IPC and vide judgment dated 23.05.2019, he was again acquitted.
In both the cases, there is no element of any moral turpitude or the charges
of moral turpitude are levelled against him. Both the offences have taken
place after appointment of the petitioner in the respondent-department. At the
time of petitioner's appointment vide order dated 07.08.1998, there were no
criminal cases registered against him, therefore, it cannot be said that there
was any false declaration made by the petitioner at the relevant time. Even
otherwise, the petitioner has already been acquitted in both the cases
registered against him. The authorities have not taken any action against the
petitioner owing to registration of the criminal cases at the relevant time and
permitted him to continue on the post in question. Until and unless the
petitioner is found guilty of any offence being registered against him, no case
is made out to terminate his services.
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4. It is argued that despite the offences being registered against the
petitioner in the years 2000 and 2010, no action was taken by the authorities
against him. The petitioner continued to serve the respondent-department for
more than two decades and it is only on 06.01.2021, a show cause notice was
issued to the petitioner on the report submitted by the Assistant Inspector
General of Police pointing out the fact that looking to his conduct, he is unfit
to remain in the Government service.
5. It is further argued that the authorities have not taken note of the fact
that the petitioner has already been acquitted in both the criminal cases by
the learned trial Court. The petitioner cannot be punished for no fault of his
own as he has already been acquitted in both the criminal cases. The
petitioner is a regular employee in the department and without conducting a
detailed departmental enquiry into the matter and without levelling any
allegation against the petitioner, the authorities could not have even issued a
show cause notice against him. Therefore, the petition has been filed.
6. On notice being issued, a reply has been filed by the respondents-
authorities pointing out the fact that the petition itself is not maintainable as
the same is against issuance of show cause notice. It is submitted that it is
only a show cause notice which has been issued to the petitioner and till date,
no final decision has been taken by the authorities regarding his termination.
It is contended that the petitioner was found involved in two criminal cases,
although he was acquitted by the trial Court in both the cases, the matter was
sent to the police for character verification on 04.12.2019 and for re-
verification and after due verification being carried out by the Assistant
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Inspector General of Police, it was opined that the concerning official is unfit
to remain in Government service looking to his conduct and his involvement
in the criminal cases. Reliance has been placed on the decision rendered in
the case of Commissioner of Police vs Mehar Singh, reported in (2013) 7
SCC 685 as well as order passed by this Court in the case of Deepak Vishnoi
vs State of M.P. : WP No. 20686 of 2023 decided on 20.08.2023. They have
prayed for dismissal of the writ petition.
7. A rejoinder has been filed by the petitioner denying the contentions
made in the reply and placing reliance upon the cases viz. Panna Mehta vs
State of M.P. reported in ILR 2002 MP 1047; Upendra Gurjar vs State of
M.P. : WP No.4324/2017 decided on 20.07.2017; Dwarika Prasad Kashiyap
vs State of MP reported in 2010 (3) MPHT 180; Arun Kumar Shukla vs
Union of India : WP No.7680/2012 decided on 06.03.2013 and the
judgments passed by the Hon'ble Supreme Court in the cases of Union of
India vs Jaipal Singh, reported in 2004 (1) SCC 121 and Rajnarayanvs Union
of India, reported in 2019 (5) SCC 809, it is submitted that accused being
acquitted by giving benefit of doubt clearly goes to show that the prosecution
has failed to prove the charges levelled against him. The authorities cannot
distinguish acquittal and the acquittal based upon benefit of doubt being
granted to him or prosecution has failed to prove the charges against the
accused. The fact remains that it is acquittal granted to the accused by the
learned trial Court. The similar is the situation in the present case. He has
further placed reliance upon the judgment passed by the Hon'ble Supreme
Court in the case of Pawan Kumar vs Union of India reported in (2023) 12
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SCC 317 wherein it is held that all the cases cannot be put in a straight jacket
formula and have to be considered on the facts and circumstances of each
case. He has prayed for quashment of the impugned notice.
8. Heard learned counsels for the parties and perused the record.
9. From perusal of the record, it is not disputed that initial appointment of
the petitioner was in the year 1998 and at that time, there was no criminal
case registered against him. While he was discharging his service, a criminal
case was registered against him in the year 2000 for offence under Sections
294, 506 Part II, 148 and 323 read with 149 of IPC wherein after facing trial,
he was acquitted vide judgment dated 09.01.2009. During this intervening
period, no action was taken by the authorities; not even a show cause notice
was issued to him. Again in the year 2010, a criminal case was registered
against the petitioner for the offence under Sections 419/34, 420/34, 467/34,
468/34 and 471/34 of IPC and after facing trial, he was acquitted vide
judgment dated 23.05.2019. During this intervening period also, no action
was taken against the petitioner. Thus, it is clear that the petitioner has been
acquitted from all the charges levelled against him in the criminal cases.
None of the charges levelled against the petitioner is pertaining to moral
turpitude. There is nothing on record placed by the authorities that any
departmental action was taken against the petitioner during these two
intervening periods. Return is silent to the aforesaid fact.
10. The record indicates that the petitioner has worked in the respondent-
department for more than two decades and there were no complaints made
by the authorities regarding working of the petitioner at any point of time. It
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is only in the year 2021 on the report submitted by the Assistant Inspector
General of Police that the petitioner is unfit to hold the Government post, the
impugned show cause notice has been issued to him. The fact remains that
the petitioner has been acquitted in both the criminal cases registered against
him and the authorities failed to take note of the acquittal of the petitioner
coupled with the fact that no proceedings were initiated by the authorities
against the petitioner during the said intervening periods. The case laws
which have been relied upon by the respondents-authorities are virtually on
different footings and are not applicable to the case of the petitioner.
11. The Hon'ble Supreme Court in the case of Inspector General of Police
vs S. Samuthiram reported in (2013) 1 SCC 598 has considered that when
acquittal can be held to be "honourable acquittal" and also that a person of
doubtful integrity cannot be allowed to work in the department, but whether
the acquittal in a criminal case amounts to clean and honourable acquittal has
not been considered by the authorities.
12. Further, the Hon'ble Supreme Court in the case of Pawan Kumar
(supra) has held as follows :
17. One distinguishing factor, as noticed above, is that
the criminal complaint/FIR in the present case was
registered post submission of the application form. We
have also taken into account the nature of the
allegations made in the criminal case and that the matter
was of trivial nature not involving moral turpitude.
Further, the proceedings had ended in a clean acquittal.
As is clear from para 38 in Avtar Singh v. Union of
India, (2016) 8 SCC 471), all matters cannot be put in a
straitjacket and a degree of flexibility and discretion
vests with the authorities, must be exercised with care
and caution taking all the facts and circumstances into
consideration, including the nature and type of lapse.
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13. In the cases of Manni Lal vs Permai Lal reported in AIR 1971 SC 330
and Dilip Kumar Sharma vs State of M.P. reported in AIR 1976 SC 133, the
Hon'ble Supreme Court held that the order of acquittal means that the person
concerned has not committed the offence for which he was charged and tried.
Criminal Courts record acquittal when the prosecution fails to prove its case
beyond all reasonable doubt and benefit of doubt is given to the accused
which does not mean that he was involved in the case but the same could not
be proved by the prosecution. In Criminal Law, words "beyond reasonable
doubt" cannot be termed as stigma or proof of any criminal charge against
acquitted accused. In Panna Mehta (supra), it has been held that in criminal
jurisprudence there is no difference between "clean acquittal", "Hon'ble
acquittal" or "acquittal based on giving benefit of doubt". When the accused
is acquitted by giving benefit of doubt, it means that the prosecution was not
able to prove its case beyond reasonable doubt. In Upendra Gurjar (supra), it
is held that the authorities cannot distinguish between acquittals inter-se
because CrPC does not contemplate any differentiation in acquittal. In
Dwarka Prasad Kashyap (supra), it is held that on being acquitted the
terminated employee is entitled to be reinstated in service.
14. If the aforesaid proposition of law is applied to the facts of the present
case, then it can easily be inferred that it is a case of acquittal of the petitioner
in both the criminal cases. Thus, the very cause of issuance of show cause
notice is not available to the authorities, coupled with the fact that the
authorities themselves have kept quiet for a considerable period of more than
two decades without taking any action against the petitioner. The record
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indicates that first criminal case was registered against the petitioner in the
year 2000 and he was acquitted vide judgment dated 09.01.2009 and second
criminal case was registered against him in the year 2010 and again he was
acquitted vide judgment dated 23.05.2019. The respondents themselves
permitted the petitioner to work in the department for more than two
decades. Thus, the authorities were having no cause to even issue notice to
the petitioner. Under these circumstances, impugned notice dated 06.01.2021
(Annexure P/6) whereby the petitioner was asked to show cause as to why he
be not removed from service as his conduct is unbecoming of a Government
servant, is per se illegal.
15. In view whereof and considering the aforesaid judgments, the
impugned notice dated 06.01.2021 is unsustainable and the same is hereby
quashed. The authorities are directed to permit the petitioner to work on the
post of Shiksha Karmi Grade III in the respondent-department concerned.
16. In the result, the petition stands allowed and disposed off finally. No
order as to costs.
(VISHAL MISHRA)
JUDGE
VV
