Laxman Harizan vs State Of Jharkhand And Ors

Heard Mr. Awnish Shankar, learned counsel for the petitioner and Mr. Shadab Bin Haque, learned counsel for the respondents-State.

This writ petition has been heard through Video Conferencing in view of the guidelines of the High Court taking into account the situation arising due

to COVID-19 pandemic. None of the parties have complained about any technical snag of audio-video and with their consent this matter has been

heard.

The petitioner has preferred this writ petition for quashing the order dated 19.06.2019 contained in Annexure-7 whereby payment of retiral benefit of

the petitioner has been rejected.

The petitioner was working as Forester in Chouparan State Trading Division (West), Range Chouparan, District Hazaribag. The First Information

Report was instituted against the petitioner and one Ishwar Singh by the respondent no.4 which was registered as Chouparan P.S. Case No.103 of

1999 dated 05.08.1999 under Section 409/120B of the Indian Penal Code. The allegation was that the petitioner who was posted as Forester along

with co-accused Patrick Joseph Hansdah who was the range officer and Ishwar Singh, daily wages Munshi committed the criminal breach of trust of

Government goods of total amount of Rs.33,95,171.40. The charge sheet was submitted against the petitioner and co-accused Ishwar Singh under the

aforesaid Sections. The departmental proceeding was initiated against the petitioner on 12.12.1996 and the petitioner was put under suspension on

30.11.1996. The petitioner pursuant to departmental proceeding, was dismissed from the service for the charges levelled against him for defalcation of

sum of Rs.33,95,170.40. He has not co-operated in physical verification of the materials which were kept in godown. He was not diligent in

performing his duties and dereliction of duties. On these charges, the dismissal order dated 12.05.2000 was passed. The petitioner in the trial was held

guilty for by the judgment dated 28.05.2013. The petitioner preferred appeal before learned Sessions Judge, Hazaribag which was allowed in terms of

judgment dated 02.12.2014. After acquittal in the criminal case by the Appellate Court, the petitioner moved before this Court in W.P.(S) No.4169 of

2016 which was disposed of in terms of order dated 08.02.2019 directing the petitioner to file representation and direction was issued to respondent-

State to consider the representation of the petitioner on the ground that the petitioner has been acquitted in the criminal case. Pursuant to that, the

impugned order has been passed whereby the case of the petitioner has been considered and the claim of the petitioner has been rejected. Aggrieved

with this, the petitioner has filed this writ petition.

Mr. Awnish Shankar, learned counsel for the petitioner submits that the petitioner has been acquitted by the Appellate Court by the judgment dated

02.12.2014. He submits that the acquittal was honorable in that view of the matter, the petitioner is entitled for all the retiral benefits. He further

submits that in the dismissal order which is Annexure-2 to the writ petition there is observation that the case of the petitioner will further be considered

after final order passed in criminal case. He also submits that technical acquittal and honorable acquittal has been considered by the Hon'ble High

Court in the case of Union Territory, Chandigarh Administration & Others Versus Pradeep Kumar & Others reported in AIR 2018 SC 376

particularly para 10 and 11 which is quoted herein below:-

The acquittal in a criminal case is not conclusive of the suitability of the candidates in the concerned post. If a person is acquitted or discharged, it

cannot always be inferred that he was falsely involved or he had no criminal antecedents. Unless it is an honourable acquittal, the candidate cannot

claim the benefit of the case. What is honourable acquittal, was considered by this Court in Deputy Inspector General of Police and another v. S.

Samuthiram (2013) 1 SCC 598 : (AIR 2013 SC 14, Para 21), in which this Court held as under:

The meaning of the expression ""honourable acquittal"" came up for consideration before this Court in RBI v. Bhopal Singh Panchal (1994) 1 SCC

541 : (AIR 1994 SC 552). 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.

Entering into the police service required a candidate to be of good character, integrity and clean antecedents. In Commissioner of Police, New

Delhi and another v. Mehar Singh (2013) 7 SCC 685 : (AIR 2013 SC 286,1 paras 19, 20, 21, 23, 28), the respondent was acquitted based on the

compromise. This Court held that even though acquittal was based on compromise, it is still open to the Screening Committee to examine the suitability

of the candidate and take adecision. Emphasizing upon the importance of character and integrity required for joining police force/discipline force, in

Mehar Singh case, this Court held as under:

A careful perusal of the policy leads us to conclude that the Screening Committee would be entitled to keep persons involved in grave cases of

moral turpitude out of the police force even if they are acquitted or discharged if it feels that the acquittal or discharge is on technical grounds or not

honourable. The Screening Committee will be within its rights to cancel the candidature of a candidate if it finds that the acquittal is based on some

serious flaw in the conduct of the prosecution case or is the result of material witnesses turning hostile. It is only experienced officers of the Screening

Committee who will be able to judge whether the acquitted or discharged candidate is likely to revert to similar activities in future with more strength

and vigour, if appointed, to the post in a police force. The Screening Committee will have to consider the nature and extent of such person's

involvement in the crime and his propensity of becoming a cause for worsening the law and order situation rather than maintaining it. In our opinion,

this policy framed by the Delhi Police does not merit any interference from this Court as its object appears to be to ensure that only persons with

impeccable character enter the police force.

Per contra, Mr. Shadab Bin Haque, learned counsel for the respondents-State submits that dismissal order contained in Annexure-2 is not under

challenge by the petitioner at any stage of litigation. He submits that in W.P.(S) No.4169 of 2016 prayer of the petitioner was made for payment of

retiral benefit in view of the fact that the petitioner has been acquitted by the Appellate Court. He further submits that the petitioner's case has been

considered by the authority concerned and they have come to the conclusion that only on technical ground acquittal of petitioner has been allowed and

in view of settled principle of law the criminal trial and the departmental proceeding, the case of the petitioner is not fit to be considered and the claim

of the petitioner has rightly been rejected.

Having heard learned counsel for the parties, the Court has gone through the materials on record. It is an admitted fact the petitioner has not

challenged the dismissal order contained in Annexure-2 dated 12.05.2000.

The Appellate Court has considered of Section 409 Indian Penal Code and observed its ingredients. The informant and I.O. has not been examined by

the prosecution that was fatal for the prosecution, in that view of the matter, the Appellate Court acquitted the petitioner. The honorable acquittal in a

criminal case does not mean that in respect of order of punishment meted out by the delinquent officer particularly considering the order of acquittal

has not been passed by the learned Sessions Judge at the same set of fact on the ground of evidence as of the departmental proceeding. In a criminal

trial, a departmental proceeding and where the delinquent officer was charged at the same time that is subject matter in the criminal case. It is well

settled principle that the standard of proof in a criminal case is a proof beyond all reasonable doubt, the proof in a departmental proceeding is

preponderance of probabilities. In the case in hand, disciplinary proceeding has been concluded after following the procedure and nothing has been

pointed out against the said departmental proceeding by the learned counsel for the petitioner. Reference in this regard the case of Dy. Inspector

General of Police Vs. S. Samuthiram reported in (2013) 1 SCC 598 particularly para 23 and 26 which is quoted hereinbelow:-

We are of the view that the mere acquittal of an employee by a criminal court has no impact on the disciplinary proceedings initiated by the

Department. The respondent, it may be noted, is a member of a disciplined force and non-examination of two key witnesses before the criminal court

that is Adiyodi and Peter, in our view, was a serious flaw in the conduct of the criminal case by the prosecution. Considering the facts and

circumstances of the case, the possibility of winning over PWs 1 and 2 in the criminal case cannot be ruled out. We fail to see, why the prosecution

had not examined Head Constable Adiyodi (No. 1368) and Peter (No. 1079) of Tenkasi Police Station. It was these two Head Constables who took

the respondent from the scene of occurrence along with PWs 1 and 2, husband and wife, to Tenkasi Police Station and it is in their presence that the

complaint was registered. In fact, the criminal court has also opined that the signature of PW 1 (complainant husband) is found in Ext. P-1 complaint.

Further, the doctor, PW 8 has also clearly stated before the enquiry officer that the respondent was under the influence of liquor and that he had

refused to undergo blood and urine tests. That being the factual situation, we are of the view that the respondent was not honourably acquitted by the

criminal court, but only due to the fact that PW 1 and PW 2 turned hostile and other prosecution witnesses were not examined.

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.

The yardstick and standard of proof in a criminal case is different from the criminal proceeding. Moreover, the dismissal order contained in Annexure-

2 has not been challenged.

As a cumulative effect of the aforesaid discussion, the writ petition is dismissed.