State of J&K vs Balbir Singh

Mr. N. Paul Vasanthakumar, C.J. - This appeal is preferred against the order of learned Writ Court made in SWP No. 1444/2000, dated

06.04.2005 allowing the Writ Petition, wherein a prayer was made for commanding the appellants not to continue with the disciplinary proceedings

after acquittal recorded by the Criminal Court was on the very same charge.

The case of the writ petitioner-respondent before the writ Court was that he came to be recruited in Police Department as constable driver on

26.08.1985 on the basis of qualification certificate of middle pass. A complaint was received stating that the respondent's middle pass certificate

was a forged one. Departmental enquiry was initiated for producing fake middle pass certificate and using the same to secure employment. It was

thus alleged that the respondent has fraudulently secured the Government job. Along with the initiation of the departmental proceedings, a criminal

complaint was also came to be registered against the respondent and challan was produced in the Court on 08.08.1989. In view of the pendency

of the criminal trial, departmental proceedings were not continued. On conclusion of the trial, respondent came to be acquitted by the 3rd

Additional Session Judge, Jammu by judgment dated 14.07.1999. After acquittal in the criminal case the department/appellants herein re-initiated

the departmental proceedings, which action was challenged by the respondent by filing the writ petition. Appellants opposed the writ petition by

stating that acquittal in the criminal case is not an impediment for them to proceed against the respondent departmentally. It was stated that

respondent used fake middle pass certificate at the time of securing appointment and is liable to be proceeded departmentally notwithstanding

acquittal in the criminal case.

The Writ Court considering the clear findings recorded by the Criminal Court on merits with regard to the genuineness of the middle pass

certificate produced by the writ petitioner held that the department cannot proceed against the respondent departmentally on the basis of the

charge, which was framed before recording acquittal by the criminal court.

The respondent having been a member of the police force Rule 338 of Police Rules is applicable, which reads thus:-

338(1) An enrolled police officer sentenced judicially to rigorous imprisonment of and exceeding one month or to any other punishment not less

severe shall, if such sentence is not quashed on appeal or revisions, to be dismissed. An enrolled police officer sentenced by a criminal court to a

punishment of fine or simple imprisonment of both or to rigorous imprisonment not exceeding one month may be dismissed or otherwise dealt with

at the discretion of the officer empowered to punish him. Final departmental orders in such cases shall be postponed until the result of any appeal

or revision proceedings is known.

(2) The procedure prescribed for the trial of summons cases shall apply mutatis mutandis to the departmental enquiries provided that when the

evidence against an officer discloses, prima facie, the commission of a cognisable offence by him, the authority inquiring into the case shall stay his

hands and refer the matter to the Inspector General of Police to be dealt with in accordance with law.

(3) When a police officer has been tried judicially and acquitted on a criminal charge he shall not be punished departmentally on the same charge or

on a charge based on evidence which has been rejected by the criminal court.

(4) When a criminal charge against a police officer has failed solely for technical reasons or when the court notes the facts as suspicious and gives

the accused the benefit of doubt or records the opinion that witnesses for the prosecution have resile through the exercise of influence upon them or

when though an acquittal is ordered on the main charge, facts are brought to light in the course of the trial which justify a separate departmental

charge, the judicial acquittal shall not in itself be a bar to departmental action nor shall it ordinarily be considered to be an honourable acquittal for

the purposes of Article 108-b(i); of the State Service Regulations.

Sub-Rule (3) of the said Rules creates a bar to proceed departmentally as the respondent was acquitted honourably. The Hon'ble Supreme

Court in the decision reported in 2013 (1) SCC 598 (Deputy Inspector General of Police & Anr. v. S. Samuthiram), held thus:-

We have also come across cases where the service rules provide that on registration of a criminal case, an employee can be kept under

suspension and on acquittal by the criminal court, he be reinstated. In such cases, the reinstatement is automatic. There may be cases where the

service rules provide that in spite of domestic enquiry, if the criminal court acquits an employee honourably, he could be reinstated. In other words,

the issue whether an employee has to be reinstated in service or not depends upon the question whether the service rules contain any such

provision for reinstatement and not as a matter of right. Such provisions are absent in the Tamil Nadu Service Rules.

The respondent after being appointed on 26.08.1985 as constable driver is continuing all these years i.e. over 30 years without any blemish.

Considering all these facts and in particular the criminal court having given a factual finding after analysing the record and the evidence that the

writ petitioner's middle pass certificate is genuine, the acquittal recorded is an honourable acquittal. As stated supra the Police Rule, 338(3) put an

embargo to proceed with departmental proceedings. Hence, we are of the view that the learned Single Judge was right in not permitting the

department/appellants to proceed with the departmental proceedings against the respondent on the very same allegation of producing fake middle

pass certificate to get appointment.

There is no merit in the appeal. Same is dismissed No costs.