Gurmit Singh vs State Of Punjab And Others

Civil Writ Petition No.2127 of 1994 1

In the High Court of Punjab and Haryana, at Chandigarh.

Civil Writ Petition No.2127 of 1994

Date of Decision: August 16, 2010

Gurmit Singh ...Petitioner Versus State of Punjab and Others ...Respondents

CORAM: HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA.

1. Whether Reporters of local papers may be allowed to see the judgment? 2. Whether to be referred to the reporters or not? 3. Whether the judgment should be reported in the Digest?

Present: Mr. Arihant Jain, Advocate for the petitioner.

Mr. J.S. Puri, Additional Advocate General, Punjab, for the respondents.

Kanwaljit Singh Ahluwalia, J.

The petitioner seeks quashing of impugned order of dismissal

from service, dated 8.10.1987 (Annexure P2), passed by respondent

No.4-Senior Superintendent of Police, Sangrur, order dated 26.7.1993

(Annexure P4), whereby the appeal was dismissed by the Deputy

Inspector General of Police, Patiala Range, Patiala, along with order

dated 17.11.1993 (Annexure P5) which resulted into dismissal of the

revision-cum-mercy petition, passed by the Inspector General of Police,

Punjab. It has been further prayed that because of acquittal in a criminal

case, the petitioner be reinstated into service.

The petitioner was enrolled as a Constable on 26.9.1977.

Thereafter, he was promoted as a Head Constable. It is pleaded that Civil Writ Petition No.2127 of 1994 2

so far as his service record is concerned, the petitioner had earned

commendation certificates along with cash reward. The petitioner was

named as an accused in case FIR No.100 dated 28.9.1987, registered

at Police Station Tapa, under Section 15 of the Narcotic Drugs and

Psychotropic Substances Act, 1985, wherein it was stated that the

petitioner was allegedly found in possession of 51 bags, each containing

48 kgs. poppy husk, along with his two co-accused. In the above said

FIR, the challan against the petitioner was submitted. The petitioner was

tried by the Court of Additional Sessions Judge, Barnala, who vide its

judgment dated 4.2.1992, acquitted the petitioner by granting benefit of

doubt.

After registration of the case, during the pendency of the trial,

the petitioner was dismissed from service by the order of Senior

Superintendent of Police, Sangrur, invoking the provisions of Clause (2)

(b) of Article 311 of the Constitution of India. In the impugned order, it

was stated that the petitioner was having links with opium smugglers

and was also helping them in the smuggling activities. The order further

stated that these activities of the petitioner were highly prejudicial and

detrimental to the police force.

The petitioner was the member of a disciplined force. He was

involved in a case pertaining to smuggling of narcotic drugs.

Mr. Arihant Jain, Advocate, appearing for the petitioner, has

relied upon Ashok Kumar v. State of Punjab and Others 1990(2)

Recent Service Judgments 209 to state that before the provisions of

Article 311(2) are to be invoked under Rule 16.38 of Punjab Police

Rules, the District Magistrate is to decide as to whether departmental Civil Writ Petition No.2127 of 1994 3

enquiry should be held or a criminal prosecution should be launched.

The second contention raised is that before that the Senior

Superintendent of Police, Sangrur, had to formulate an opinion that it

was not reasonably practicable to hold an enquiry in the case. It is urged

that before taking recourse to Article 311 of the Constitution of India, for

dispensing with the enquiry, it is necessary that there should be material

before the competent authority to come to this conclusion. Lastly, it is

submitted that once the petitioner was acquitted in the criminal case,

the termination order is liable to be set aside. In support of this

contention, reliance has been placed upon Sher Gir v. State of Punjab

(Civil Writ Petition No. 13602 of 1991, decided on 23.12.2008) and

Karamjit Singh v. State of Punjab and Another (Civil Writ Petition

No. 2495 of 2001, decided on 28.5.1993).

I have heard learned counsel for the parties.

The judgments relied upon by learned counsel for the

petitioner are not applicable to the facts of the present case.

From the perusal of the facts, which have been enumerated

above, the following questions arise for the consideration of this Court:-

A) Whether there was a justification for the Punishing

Authority to dispense with the regular enquiry by

invoking Clause (2)(b) of Article 311 of the

Constitution of India?

B) What is the effect of acquittal of the petitioner in a

criminal case especially when the acquittal has

been recorded by granting benefit of doubt?

A perusal of the impugned order (Annexure P2), passed by Civil Writ Petition No.2127 of 1994 4

the Senior Superintendent of Police, Sangrur, on 8.10.1987, reveals that

the Punishing Authority had recorded its satisfaction to the effect that the

conduct of the petitioner was highly prejudicial and detrimental to police

working as well as against the public interest. It further noticed that the

retention of the Head Constable in the Police Department was not

desirable in the public interest. The following portion of the order

requires attention of this Court:-

"...3. And whereas I am further satisfied that it is

not reasonably practicable to hold a departmental

enquiry under Punjab Police Rules 16.24 against

this Head Const. as in such departmental enquiry if

instituted the said smugglers are not likely to depose

against him on account of their links with him".

In support of the portion of the impugned order (Annexure P2),

reproduced above, Mr. J.S. Puri, Additional Advocate General, Punjab,

appearing for the respondents, has relied heavily upon the enquiry

report, conducted by the Deputy Superintendent of Police, Barnala. In

the enquiry report, it was stated that one accused, during the course of

interrogation, had disclosed regarding the involvement of the petitioner

in the crime pertaining to Narcotic Drugs and Psychotropic Substances

Act, 1985. Once the officials had interrogated the accused, who also

named the petitioner, they could be conveniently examined by the

Enquiry Officer. Furthermore, the evidence which has been led before

the Criminal Court could also be produced before the Enquiry Officer.

Apparently, there was no justification to dispense with the enquiry. The

reasons stated in the order are too general and vague. These Civil Writ Petition No.2127 of 1994 5

allegations can be imputed to any person. It is very easy to say that the

delinquent employee had links with smugglers. It is in this context, the

Courts have always held that the enquiry should not be lightly dispensed

with. A Division Bench of this Court in Swaran Singh and Others v.

State of Punjab and Others 1996(3) Service Cases Today 113 has

observed as under:-

"...7. In regard to Article 311(2)(b) of the

Constitution, we find that not only the impugned

order does not show application of mind by the

competent authority to the requirement of

constitutional provision, the record produced by Shri

Walia also does not contain any material showing

that the competent authority was satisfied, on the

basis of good and sufficient reasons, that it was not

reasonably practicable to hold inquiry. It is not a

case in which the respondents have come forward

with a plea that holding of inquiry against the

petitioners was improbable. It was not a case in

which the respondents have come out with a case

that the persons from whom the petitioners had

extorted money would not come forward to depose

against the petitioners. It is also not a case in which

the respondents have placed any material before the

Court to show that the petitioners had threatened

any person for giving evidence against them. Thus,

we do not find any ground on the basis of which the Civil Writ Petition No.2127 of 1994 6

impugned order can be sustained with reference to

Article 311(2)(b) of the Constitution. In this

connection, we may refer to two recent decisions of

this Court in Ex-Constable Sangram Singh v.

State of Punjab and others, 1995(4) SLR 536 :

1995(3) SCT 725(P&H), and Gurdev Kaur v. State

of Punjab and others, 1995(5) SLR 610 : 1996(1)

SCT 142 (P&H)(DB). In both the cases, the court

has analysed the provision of Article 311 and has

referred to the decisions in Arjun Chaubey v.

Union of India, 1984(2) SLR 16, Jaswant Singh v.

State of Punjab, AIR 1991 SC 385 : 1991(1) SCT

125 (SC), Chief Security Officer and others v.

Singasan Rabi Das, 1991(2) SLR 140 : 1992(1)

SCT 595(SC), Kedarnath Singh v. Union of India

and others, 1984(2) SLR 347, M.K. Kunjappan v.

President of India and others, 1984(2) SLR 669,

and Shri Naresh Kumar and another v.

Commissioner of Police and others, 1992(7) SLR

177, and held that unless cogent material was

placed before the Court to show that it was not

reasonably practicable to hold the inquiry, the order

of dismissal passed with preference to Article 311(2)

(b) cannot be sustained. In our opinion the principle

laid down in these two decision is fully applicable to Civil Writ Petition No.2127 of 1994 7

the case in hand and the impugned order is liable to

be declared as void".

To borrow the words from the judgment of Division Bench

rendered in Swaran Singh's case (supra), this Court cannot observe

that any cogent material has been placed before it to say that it was not

reasonably practicable to hold the enquiry.

Learned Single Judge of this Court in Ex-Constable

Balwinder Singh v. The State of Punjab and Others 2003(2) Service

Cases Today 137 held that when the evidence could be led in a criminal

case, why that evidence could not be led in the departmental enquiry.

Therefore, non holding of regular enquiry by invoking the provisions of

Clause (2)(b) of Article 311 of the Constitution of India was held bad. The Hon'ble Apex Court in Sudesh Kumar v. State of Haryana and

Others (2005)11 Supreme Court Cases 525 held that an enquiry under

Article 311(2) of the Constitution of India is a rule and dispensing with

the enquiry is an exception. It was further held that the Authority,

dispensing with the enquiry under Article 311 (2)(b) of the Constitution of

India, must satisfy for reasons to be recorded that it is not reasonably

practicable to hold an enquiry. The reasons stated that if departmental

enquiry is instituted, the smugglers would not depose with whom the

petitioner had links is not a satisfied explanation. To rely upon the

inference made by this Court, it will be necessary to reproduce the

following portion of the judgment rendered in Sudesh Kumar's case

(supra):-

"...5. It is now established principle of law that

an inquiry under Article 311(2) is a rule and Civil Writ Petition No.2127 of 1994 8

dispensing with the inquiry is an exception. The

authority dispensing with the inquiry under Article

311(2)(b) must satisfy for reasons to be recorded

that it is not reasonably practicable to hold an

inquiry. A reading of the termination order by

invoking Article 311(2)(b), as extracted above,

would clearly show that no reasons whatsoever

have been assigned as to why it is not reasonably

practicable to hold an inquiry. The reasons disclosed

in the termination order are that the complainant

refused to name the accused out of fear of

harassment; the complainant, being a foreign

national, is likely to leave the country and once he

left the country, it may not be reasonably practicable

to bring him to the inquiry. This is no ground for

dispensing with the inquiry. On the other hand, it is

not disputed that, by order dated 23.12.19999, the

visa of the complainant was extended up to

22.12.2000. Therefore, there was no difficulty in

securing the presence of Mr. Kenichi Tanaka in the

inquiry.

6. A reasonable opportunity of hearing

enshrined in Article 311(2) of the Constitution would

include an opportunity to defend himself and

establish his innocence by cross-examining the

prosecution witnesses produced against him and by Civil Writ Petition No.2127 of 1994 9

examining the defence witnesses in his favour, if

any. This he can do only if inquiry is held where he

has been informed of the charges levelled against

him. In the instant case, the mandate of Article 311

(2) of the Constitution has been violated depriving

reasonable opportunity of being heard to the

appellant".

This Court is conscious of the fact that the Hon'ble Apex Court

in Kuldip Singh v. State of Punjab and Others 1996(4) Service

Cases Today 595 relying upon Union of India v. Tulsi Ram Patel

1985 Supplementary(2) SCR 131 has held that the satisfaction of the

Punishing Authority cannot be lightly interfered and the power of the

judicial review under Article 226 of the Constitution of India should not

be exercised in the manner as the Writ Court will sit over the judgment

of the Punishing Authority like the Court of First Appeal. Even that being

so, the legal position which emerges is that the Court should be

reasonably satisfied that there was some cogent material before the

Punishing Authority to dispense with the enquiry envisaged under Article

311(2)(b) of the Constitution of India. The words that it was not

reasonably practicable to hold an enquiry must be justified by the

Authority before the Court by placing some cogent material. Once the

Court is satisfied that there was some material before the Disciplinary

Authority it will be hesitant to apply its mind, regarding the truth and

veracity of the allegations.

Thus, in view of the discussion made above, this Court is of

the opinion that the order of dismissal, passed with preference to Article Civil Writ Petition No.2127 of 1994 10

311(2)(b) of the Constitution of India cannot be sustained, in view of the

ratio of law as noticed by a Division Bench of this Court in Swaran

Singh's case (supra). The impugned order dated 8.10.1987 (Annexure

P2) along with subsequent orders dated 26.7.1993 (Annexure P4) and

17.11.1993 (Annexure P5), passed by the Appellate and Revisional

Authorities, is liable to declared as void.

The above said view formulated by this Court is also fortified

by a well reasoned judgment of this Court pronounced in Smt. Surinder

Kaur Wd/o Sh. Labh Singh v. State of Punjab through Director

General of Police, Chandigarh, 2008(1) Service Cases Today 396.

Question No.2.

Now it is well settled that the rules governing a criminal trial

are so stringent that a delinquent official, as an accused, may get benefit

of doubt and the resultant acquittal may not necessarily entitle the

employee for exoneration in the departmental enquiry.

A Division Bench of this Court in Krishan Chander v. Union

of India and Others 2008(1) Service Cases Today 613 has observed

as under:-

"...11. In our opinion, this order did not preclude

the respondents from taking departmental action.

The rules governing a criminal trial are so stringent

that a delinquent official as an accused may get

benefit of doubt and resultant acquittal, but that

necessarily may not entitle him clearance in the

departmental inquiry. It is well-settled that

departmental proceedings can be continued even Civil Writ Petition No.2127 of 1994 11

after acquittal of the delinquent in the criminal case

and the disciplinary authority can pass appropriate

order on the basis of evidence produced during the

inquiry. The object of criminal trial is to inflict

appropriate punishment on the offender/delinquent,

while the purpose of departmental proceedings is to

deal with the delinquent official in such a manner as

to serve as a deterrent to other employees. In

criminal trial, confession made by the accused

before someone or before the superior officers is

inadmissible in evidence against him, which is not

the case in the departmental inquiry. The strict rules

of evidence and procedure do not apply in

departmental proceedings. The degree of proof

which is necessarily required in order to record a

conviction against the accused is also different as

compared to the punishment in departmental

proceedings. However, the fact remains that merely

because the delinquent has been acquitted, the

power of the department to continue with the

departmental proceedings is not taken away or in

any way fettered to proceed against the accused

departmentally. In the case of State of Andhra

Pradesh and others v. Sree Rama Rao, AIR 1963

SC 1723, it has been held by the Apex Court that

the report of the Inquiry Officer that the judgment of Civil Writ Petition No.2127 of 1994 12

the Magistrate holding a criminal trial against a

public servant could not always be regarded as

binding in a departmental inquiry against that public

servant was not suffering from any error. It was

further held that the conclusions of the departmental

officers were borne out from the evidence before

them and the High Court has no jurisdiction to set

aside the order either on the ground that the

approach to the evidence was not consistent with

the approach in a criminal case nor on the ground

that the High Court would have on that evidence

come to a different conclusion".

In the judgment rendered in Commissioner of Police, New

Delhi v. Narender Singh (SC) 2006(2) Service Cases Today 441, the

Hon'ble Apex Court observed as under:-

"...12. It is not in dispute that the standard of

proof required in recording a finding of conviction in

a criminal case and in a departmental proceeding

are distinct and different. Whereas in a criminal

case, it is essential to prove a charge beyond all

reasonable doubt, in a departmental proceeding

preponderance of probability would serve the

purpose. [See Kamaladevi Agarwal v. State of

W.B. and Others, (2002)1 SCC 555]

13. It is now well-settled by reason of a catena

of decisions of this Court that if an employee has Civil Writ Petition No.2127 of 1994 13

been acquitted of a criminal charge, the same by

itself would not be a ground not to initiate a

departmental proceeding against him or to drop the

same in the event an order of acquittal is passed.

14. In Manager, Reserve Bank of India,

Bangalore v. S. Mani and Others, 2005(2) SCT

404 : [(2005)5 SCC 100], this Court held :

"It is trite that a judgment of acquittal

passed in favour of the employees by

giving benefit of doubt per se would not be

binding upon the employer..."

[See Bank of India and Another v. Degala

Suryanarayana, 1999(3) SCT 669 : (1999)5 SCC

762; Ajit Kumar Nag v. General Manager (PJ),

Indian Oil Corporation Ltd., Haldia and Others,

2005(4) SCT 341 : (2005)7 SCC 764]".

Thus, an acquittal of a delinquent official ipso facto may not

absolve him of undergoing disciplinary enquiry. However, where the

charges were absolutely identical, ordinarily the same enquiry ought not

to be resorted to. In Sham Sunder Gupta v. State Bank of India (P&H)

1996(3) Service Cases Today 444, it was held that the employer is not

barred from initiating enquiry against the delinquent employee, after his

acquittal unless the Criminal Court had returned the finding that the

charge levelled against the delinquent was frivolous or false.

In the present case, the conclusion of the judgment of acquittal

reveals that the Additional Sessions Judge, Barnala, who tried the Civil Writ Petition No.2127 of 1994 14

petitioner in the judgment dated 4.2.1992 (Annexure P3) had recorded

acquittal of the petitioner by granting benefit of doubt.

Another question which arises for consideration of this Court is

that where even though the acquittal has been recorded by granting

benefit of doubt, whether the Court can examine the judgment of

acquittal to say that even benefit of doubt meant honourable acquittal. A

Division Bench of this Court in Bhag Singh v. Punjab and Sind Bank

2006(1) Service Cases Today 175 has held that mere mentioning of

words "benefit of doubt" by the Criminal Court is not sacrosanct. That

question has been left open to the discretion of the Enquiry Officer. It

will be apposite here to reproduce below the relevant portion of Bhag

Singh's case (supra):-

"...In both the cases, he was acquitted by the

Designated Court, Sangrur. In the trial held on the

basis of FIR dated 10.12.1988, the trial Court, whilst

acquitting the petitioner, observed as follows :-

"6. In this case the charge against the

accused persons is that on 10.8.88 they

had assembled in the area of V. Ghabdan

armed with deadly weapons and were

making preparation for dacoity and they

were holding meeting and talking about

the same. None of the witnesses

examined by the prosecution has repeated

the words uttered by each of the accused.

It cannot be believed that the secret Civil Writ Petition No.2127 of 1994 15

informer heard their talks and he told the

talks to the police and when I.O. came to

the spot, they repeated the same

utterance. It cannot be believed that

accused will be holding a meeting near the

main road where they can easily be

spotted. There is no independent

corroboration. The prosecution case rests

solely on the testimony of official

witnesses. The accused have been

involved in two other cases as also one

u/s 302 IPC read with Section 34 IPC,

307/34 IPC, 397 IPC, 120-B IPC and

Section 3 TADA Act and the other under

Section 25 Arms Act wherein they have

been acquitted today. No weapon has

been shown to have been recovered from

the accused in this case, nor the

recovered weapons have been produced

at the time of statement of I.O. or other

P.W. From all this I am of the considered

view that the prosecution has not been

able to prove the charge against the

accused beyond reasonable doubt. The

accused is entitled to benefit of doubt and

acquitted."

Civil Writ Petition No.2127 of 1994 16

Records be consigned.

Pronounced Sd/- Addl. Judge 3.6.98 Designated Court, Sangrur"

8. FIR No. 152 was under Sections 307/34,

307, 120-B, IPC, 302/34 IPC, read with Section 3 of

the TADA Act, 1987. During trial, 22 witnesses were

examined by the prosecution. Again the petitioner

has been acquitted with the following observations:-

"The prosecution case was that on

25.11.88 Varinder Singh Cashier handed

over currency notes of Rs. 1.5 lac to Sh.

Bharpur Singh Cashier for depositing the

same at Bhawanigarh Branch of the bank.

Bharpur Singh Cashier alongwith Sukhdev

Singh Gunman went on Scooter No. PAS

4995 for depositing the amount and when

they reached near bus stop Jhuneri three

Sikh gentlemen came from behind on

scooter and brought near the scooter of

Bharpur Singh and fired shot hitting

Sukhdev Singh Gunman on right temple

and when he fell down some more shots

were fired. Sukhdev Singh was killed,

Bhupinder Singh was injured. This

Bhupinder Singh Cashier did not support

the prosecution version. He is injured and Civil Writ Petition No.2127 of 1994 17

star witness of the prosecution. He was

declared hostile and even in his cross-

examination prosecution could not bring

anything in its favour. None of the

remaining witnesses whose evidence has

been discussed has stated that accused

Bhag Singh, Mohinder Singh were

involved in the crime in any manner. The

witnesses even did not identify them in

Court. In theses circumstances I hold the

prosecution has failed to bring home the

charge to the accused beyond any

reasonable doubt. The accused are,

therefore, given benefit of doubt and are

acquitted of the charge framed against

them. They are on bail and their bail

bonds are discharged. Records be

consigned.

Pronounced 3.6.98 Sd/- Add. Judge Designated Court, Sangrur."

In both the cases, inspite of the clear observations

that there was no evidence against the petitioner,

the trial Court observed that the accused are given

benefit of doubt and acquitted of the charges framed

against them. Relying on the aforesaid observation, Civil Writ Petition No.2127 of 1994 18

the respondents have denied the benefit of full pay

and allowances to the petitioner. In our opinion, the

mere use of the expression "benefit of doubt" or "not

proved beyond reasonable doubt" by the trial Court

or the appellate Court, cannot be permitted to

convert an acquittal on the ground of no evidence, to

something less than that. The concepts of

"Honourable Acquittal", "fully exonerated" or

"acquitted of blame" are all unknown to the Criminal

Procedure Code, 1973. Therefore, the term "benefit

of doubt" cannot detract from the impact of the

acquittal. A similar view has been expressed by this

court in the case of Jagmohan Lal v. State of

Punjab through Secy. to Punjab Govt. Irrigation

and others, AIR (54) 1967 Punjab and Haryana

422 as follows :-

"J.N. Kaushal, J. -

(3) In my opinion, the relevant rule is 7.5.

The heading under which this rule has

been framed is "Suspension During

Pendency of Criminal proceedings etc."

The rule reads like this :-

"7.5 A servant of Government against

whom proceedings have been taken either

for his arrest for debt or on a criminal

charge or who is detained under any law Civil Writ Petition No.2127 of 1994 19

providing for preventive detention should

be considered as under suspension for

any periods during which he is detained in

custody or is undergoing imprisonment

and not allowed to draw any pay and

allowances (other than any subsistence

allowance that may be granted in

accordance with the principle laid down in

Rule 7.2) for such periods until the final

termination of the proceedings taken

against him or until he is released from

detention and allowed to rejoin duty, as

the case may be. An adjustment of his

allowance for such period should

thereafter be made according to the

circumstances of the case, the full amount

being given only in the event of the officer

being acquitted of blame or (if the

proceedings taken against him were for

his arrest for debt), of its being proved that

the officer's liability arose from

circumstances beyond his control or the

detention being held by the competent

authority to be unjustified."

There is no doubt that the rule contemplates the

payment of the full amount only in the event of the Civil Writ Petition No.2127 of 1994 20

officer being acquitted of blame. The stand of the

Government indicated in Annexure `D' was in these

words -

".............According to Rule 7.5 ibid full

amount has to be given only if the official

is acquitted of the blame. The words `of

blame' are not redundant. As the petitioner

was given benefit of doubt it cannot be

said that he was acquitted of `blame'. In

the circumstances, the petitioner is not

entitled to his full pay and allowances for

the period of suspension."

The interpretation which has been put by

the Government on the rule is incorrect.

The blame which attached to the petitioner

was that there was a criminal charge

against him under which he was standing

his trial. The moment he is acquitted of the

charge, he is acquitted of the blame. In

criminal law, the Courts are called upon to

decide whether the prosecution has

succeeded in bringing home the guilt to

the accused. The moment the Court is not

satisfied regarding the guilt of the

accused, he is acquitted. Whether a

person is acquitted after being given a Civil Writ Petition No.2127 of 1994 21

benefit of doubt or for other reasons, the

result is that his guilt is not proved. The

Code of Criminal Procedure does not

contemplate honourable acquittal. The

only words known to the Code are

"discharged" or "acquitted". The effect of a

person being discharged or acquitted is

the same in the eyes of law. Since,

according to the accepted notions of

imparting criminal justice, the Court has to

be satisfied regarding the guilt of the

accused beyond a reasonable doubt, it is

generally held that there being a doubt in

the mind of the Court, the accused is

acquitted......................"

"It is futile to expect a finding of either

honourable acquittal or complete

innocence in a judgment of acquittal. The

reason is obvious; the criminal Courts as

are not concerned to find the innocence of

the accused. They are only concerned to

find whether the prosecution has

succeeded in proving beyond a

reasonable doubt the guilt of the accused."

9. A Division Bench of this Court, of which

one of us (S.S. Nijjar, J.) was a member, has earlier Civil Writ Petition No.2127 of 1994 22

considered the term of "benefit of doubt" in the case

of Shashi Kumar v. Uttri Haryana Bijli Vitran

Nigam through its Managing Director, Panchkula

and Anr., 2005(1) SLR 659. It has been held as

under :-

"A perusal of the order passed by the

respondents removing the petitioner from

service shows that the respondents had

passed the same basing it purely on the

conviction of the petitioner. The order

states that in view of the conviction, the

petitioner is removed from service on

account of conduct which led to his

conviction. Excepting for the aforesaid

sentence, the order does not elude to any

circumstances which could be related to

the conduct of the petitioner leading to the

conviction. Therefore, in our opinion, the

impugned order is liable to be quashed on

this short ground as it has been passed,

without taking into consideration the

relevant material. In any event, the

petitioner having been acquitted in appeal,

the justification of the order of removal no

longer existed. The High Court has

ordered the acquittal of the petitioner after Civil Writ Petition No.2127 of 1994 23

threadbare examination of the evidence. It

has been noticed that the complainant,

Puarn Singh PW-8 was the owner of 8-1/2

killas of land situated in villages Jundla.

He further stated that about two years

prior to the recording of the statement in

Court on 5.8.1997, he had gone to the

office of Vigilance Department and

reported against Haryana State Electricity

Board Officer Natha Ram for demanding

Rs. 7500/-. This amount had been

demanded for installation of new

transformer as old transformer was

overloaded and his tubewell meter was not

functioning property. He also stated that

he had earlier paid Rs. 3200/- to Natha

Ram. He further stated that Junior

Engineer of his feeder was Sukhbir Singh

Malik. He then categorically stated that he

did not know Shashi Kumar, the petitioner.

It was also stated by him that the

petitioner never remained Junior Engineer

of his feeder. He never demanded any

amount from him nor he paid any amount

to him. This witness was declared hostile,

but nothing useful emerged from his Civil Writ Petition No.2127 of 1994 24

cross-examination. In fact in the cross-

examination, he further admitted that there

was a scuffle among HSEB employees

and the police employees. He reiterated

that he did not pay any amount to the

petitioner. Therefore, the High Court

concluded that according to the statement

of the complainant, the petitioner did not

know the complainant nor did the

petitioner demanded any amount from

him. Even the trap witness PW2 in the

cross-examination admitted that he was

an employee of the Vigilance Department,

Karnal. He had remained posted as a

Peon for the last 10 to 15 years at Karnal.

He further admitted that he had joined 3-4

raids with the Vigilance Officer. Therefore,

the High Court came to the conclusion that

PW was not an independent witness as he

was under the control of DSP (Vigilance).

The High Court relied on a judgment of the

Supreme Court in the case of State of

Madhya Pradesh v. J.B. Singh, 2000

Crl.L.J. 4591 wherein it has been held

that an offence under the Prevention of

Corruption Act would not be established Civil Writ Petition No.2127 of 1994 25

unless there is evidence to prove the act

of demand of illegal gratification. Relying

on the aforesaid ratio of law, the petitioner

has been acquitted. In such

circumstances, it can hardly be said that

the acquittal of the petitioner is not

honourable." (Emphasis supplied)

10. The expression "honorable acquittal" has been

considered by a Division Bench of the Madras High

Court in the case of Union of India v. Jayaram,

AIR 1960 Mad. 325. In that case, Rajamannar, C.J.

delivering the judgment, observed as under :-

"There is no conception like "honourable

acquittal" in Criminal P.C. The onus of

establishing the guilt of accused is on the

prosecution, and if it fails to establish the

guilt beyond reasonable doubt, the

accused is entitled to be acquitted.

Clause (b) of Article 193 of the Civil

Service Regulations which say that when

a Government servant who was under

suspension is honourably acquitted, he

may be given the full salary to which he

would have been entitled if he had not

been suspended applies only to the case

of departmental inquiry.

Civil Writ Petition No.2127 of 1994 26

Where the servant was suspended

because there was a criminal prosecution

against him, and he was acquitted therein,

and reinstated he is entitled under the

general law, to the full pay during the

period of his suspension. To such a case

Article 193(b) does not apply."

Another Division Bench of this Court in Shiv Kumar Goel v.

State of Haryana and Another 2007(1) Service Cases Today 739

has observed that in case the Criminal Court recorded finding that there

was no evidence to prove the charge of corruption against the charged

employee, notwithstanding the observations as to acquittal by benefit of

doubt, it will be considered as honourable acquittal.

In the light of the above observations, it will be necessary to

examine the judgment of the Criminal Court (Annexure P3) whereby

acquittal of the petitioner was recorded. The prosecution story, as set

out against the petitioner, is that he along with two persons was found

sitting on the gunny bags containing poppy husk. On seeing the police

party, the petitioner escaped from the spot and was not apprehended.

The trial Court came to a conclusion that the entire prosecution case

against the petitioner was based upon the solitary testimony of Balwant

Singh, Sub Inspector. The Court held that Balwant Singh, Sub Inspector

was not a truthful witness. Para 7 of the judgment of acquittal

(Annexure P3) reveals as under:-

"...7. After going through the evidence on the

record and hearing both sides, I agree with the Civil Writ Petition No.2127 of 1994 27

learned defence counsel that the prosecution has

ailed to prove the charge against the accused

beyond a reasonable doubt. As already stated, the

case against the accused rests on the solitary

statement of S.I. Balwant Singh. There is no

corroboration to his statement Gurdeep Singh and

Pritam Singh were stated to be witnesses of the

alleged recovery. But Gurdeep Singh has

contradicted S.I. Balwant Singh while appearing as

PW2 that the accused or their deceased companion

were sitting on the bags containing poppy husk

when they reached there. There was no reason for

him to make a false statement. He does not belong

to the village of the accused and as no connection

with them. He belongs rather to the village of S.I.

Balwant Singh and S.I. Balwant Singh also admits

this fact. It appears that S.I. Balwant Singh has

obtained the signatures of this witness on the

recovery memo Ex.PD showing the recovery in the

manner stated by him on account of his influence

over this witness Gurdeep Singh who is a driver of a

private jeep and belongs to his village. Therefore,

the testimony of Gurdeep Singh has the ring of truth

and he says that no person was near the bags when

they reached there and that he did not know any of

the accused before the recovery of the bags. His Civil Writ Petition No.2127 of 1994 28

testimony gives a lie to the testimony of Balwant

Singh that the accused and their deceased

companion were sitting on the bags and that they

ran away on seeing the police officials.

Furthermore, the Criminal Court held that the prosecution

version set out against the petitioner was unnatural, improbable and

unconvincing. The fact that the petitioner had escaped in the presence

of 20-25 police officials, who had reached the spot, in three vehicles,

was not held reliable. It was observed in para 8 of the judgment

(Annexure P3) as under:-

"...8. Even otherwise, the prosecution version

that the accused had run away on seeing the police

officials does not appeal to reason Police officials

had reached the spot in three vehicles. They were

20/25 persons in all. According to Balwant Singh

they had also chased the persons who were sitting

on the bags. It is difficult to believe that if anybody

was sitting on the bags at the relevant time so many

police officials having three vehicles with them

could have allowed him or them to run away from

the spot. Therefore, the prosecution version is quite

unnatural".

Furthermore, the Court gave a categoric finding that the

prosecution failed to prove the identity of the accused who had run away

from the spot. A detailed discussion has been made in para 9 of the

judgment (Annexure P3) to conclude that the identity of the persons, Civil Writ Petition No.2127 of 1994 29

who ran away from the spot on seeing the police officials, has not been

satisfactorily established.

Once the solitary prosecution witness was held not to be

truthful, the prosecution version was discarded being unnatural and it

was held that the prosecution failed to prove the identity of the accused

as the person, who was present at the spot, even though in the

conclusion, persons' acquittal has been recorded by giving benefit of

doubt, it cannot be said that acquittal of the petitioner was not

honourable. Thus, even though the words "benefit of doubt" has been

used, the petitioner's acquittal was due to prosecution's failure to prove

the case against him.

Having said that the Punishing Authority was not justified in

dispensing with the enquiry by invoking Clause (2)(b) of Article 311 of

the Constitution of India and the acquittal of the petitioner was on merits

and was not the result of benefit of doubt, this Court has to ponder as to

what relief the petitioner is entitled to, after he was acquitted in a case

registered against him in the year 1987. This Court is also conscious of

the fact that the impugned order (Annexure P2), whereby the petitioner

was dismissed from service, was passed on 8.10.1987. A long period of

23 years are going to elapse. The petitioner, by now, may have attained

the age of superannuation or may be on the verge of superannuation.

Holding of a de novo enquiry, at this stage, may not serve the ends of

justice as the acquittal of the petitioner, as held earlier, was on its merits

and not by grant of benefit of doubt.

In view of the discussion made above, this Court has already

held the impugned order dated 8.10.1987 (Annexure P2) along with Civil Writ Petition No.2127 of 1994 30

subsequent orders dated 26.7.1993 (Annexure P4) and 17.11.1993

(Annexure P5), passed by the Appellate and Revisional Authorities, as

illegal. However, this shall not prevent the respondents from passing an

order afresh, in accordance with the provisions of law taking into

consideration observations made in this judgment. Since the petitioner

has not discharged his duties, during the intervening period, the maxim

of "No Work No Pay" shall apply and he shall not be entitled to any

monetary benefits in the form of back wages from the date of dismissal

till the date of passing of this order. However, the petitioner shall be

entitled to retiral benefits in case the respondents opt to reinstate the

petitioner into service.

With the observations made above, the present writ petition is

disposed of.

(Kanwaljit Singh Ahluwalia) Judge August 16, 2010 "DK"