Prakash Joshi vs State of Uttarakhand and Another

B.S. Verma, J.—Heard Sri G.K. Verma, holding brief of Mr. A. Rab, learned Counsel for the Petitioner and Sri N.P. Sah, learned Standing Counsel for the Respondents and perused the record.

By means of this petition, under Article 226 of the Constitution of India, the Petitioner has prayed for the following reliefs-

(a) To issue a writ order or direction in the nature of certiorari quashing the impugned order (letter No. 98/2009) dated 7-4-2009, passed by Respondent No. 2, annexed as Annexure No. 3, to the writ petition.

(b) Any such other relief as this Hon''ble Court may deem just and proper in the circumstances of this case.

(c) Award the cost of the petition to the Petitioner against the Respondents.

According to the Petitioner, he was appointed Constable in Uttarakhand Police Department on 10th October, 2001 and he was working as a permanent government servant in the Uttarakhand Police. On 6th April 2009, an F.I.R. was lodged at P.S. Kashipur, District Udham Singh Nagar against the Petitioner and one Yogesh u/s s 353/224 I.P.C. and 9/13 Prevention of Curruption Act, 1988. The S.S.P. Udham Singh Nagar passed dismissal order of the Petitioner with immediate effect vide impugned order dated 7-4-2009. The allegation of the Petitioner is that no inquiry whatsoever was ever held and without giving opportunity of hearing, the dismissal order has been passed, which is against the principle of natural justice as well as Rule 8 (2)(b) of the Uttar Pradesh Police Officers of the Subordinate Ranks (Punishment & Appeal) Rules, 1991.

Thereafter, charge sheet was submitted against the Petitioner and cognizance was taken in the matter by Special Judge (Prevention of Corruption Act)/ Sessions Judge, Nainital and trial commenced against the Petitioner and one another.

The Respondent No. 2 filed counter affidavit and denied the contents of the petition. He alleged that there is no necessity of giving any opportunity of hearing while exercising the power under Rule 8(2)(b) of the Rules, particularly, in a case where the Petitioner has escaped from custody.

The Petitioner has filed supplementary affidavit annexing therewith the judgment and order dated 23rd August, 2010 passed by Special Judge (Prevention of Corruption Act)/Sessions Judge, Nainital in special Trial No. 7 of 2009, State v. Prakash Joshi and Yogesh u/s s 224, 353, 120B/34 I.P.C. and 9/13 Prevention of Corruption Act, 1988. The learned Special Judge has acquitted the Petitioner and Yogesh from the charges levelled against them.

Now the grievance of the Petitioner is that inspite of his acquittal, the department has not reinstated his services. Therefore, his services be reinstated in the department and salary be paid to him for the period he remained terminated.

The learned Counsel for the Petitioner has submitted that the Petitioner has been acquitted from the charges levelled against him, therefore, the services of the Petitioner are liable to be reinstated and he is also entitled to get salary from the date of his acquittal. In support of his above contention learned Counsel has cited before me the case of G.M. Tank Vs. State of Gujarat and Another, .

I have gone through the above cited case. The Hon''ble Apex Court has held that when departmental enquiry and criminal proceedings based on same set of facts, charges, evidence and witnesses are instituted against an employee and he is honourably acquitted in criminal trial during the pendency of proceedings challenging dismissal, the finding to contrary recorded in departmental proceedings in such case, is unjust, unfair and oppressive, the dismissal order is not sustainable and the same is liable to be set aside.

In the instant case the services of the Petitioner were terminated by Respondent No. 2 due to registration of criminal case against him u/s s 353/224 I.P.C. and 9/13 Prevention of Corruption Act, 1988. As stated above, the Petitioner has been acquitted of the charges levelled against him in a trial by Special Judge (Prevention of Corruption Act)/Sessions Judge, Nainital, vide his judgment dated 23-8-2010 (Annexure SA-1), therefore, the services of the Petitioner are liable to be reinstated by the department.

So far as the back wages are concerned, the Hon''ble Apex Court in the above cited case has further held that the relief in terms of money can be awarded only with effect from the date of acquittal. Therefore, the Petitioner is entitled to get his back wages from the date of his acquittal by learned Special Judge (Prevention of Corruption Act)/Sessions Judge, Nainital, i.e. 23-8-2010.

In view of above the petition is allowed. The impugned order dated 07-04-2009 passed by Respondent No. 2, (Annexure No. 3 to the writ petition), is set aside and the Respondents are directed to reinstate the services of the Petitioner to his post in the department forthwith. The Petitioner shall also be entitled to get his back wages w.e.f. 23-8-2010.

No order as to cost.