1. Heard Sri Hanuman Upadhyay, learned counsel for the petitioner and Sri Govind Saran, learned counsel for the respondents.
2. In Writ A No. 63734 of 2006 the petitioner No.1 has prayed for following prayers:
"(a) Issue a writ, order or direction in the nature of certiorari to quash impugned orders dated 19.09.2006 (Annexure-6) passed by respondent no.2, 15.07.2005 (Annexure-3) and 16.02.1990 (Annexure-1) passed by respondent No.3.
(b) Issue a writ, order or d direction in the nature of Mandamus directing the respondents to make payment all the consequential benefits including post retiral benefits to the petitioner treating him in service.
(c) Issue any other writ, order or direction which this Hon'ble Court may deem fit and proper in the circumstances of the case.
(d) Award costs."
3. In Writ A No.76120 of 2005 the petitioner no.2 has prayed for following reliefs:-
"(i) issue a writ, order or direction in the nature of certiorari quashing the impugned judgment order dated 15.7.2005 and dismissal order dated 16.9.1990 passed by respondent no.2.
(ii) issue a writ, order or direction in the nature of mandamus directing the respondents to reinstate petitioner in the service with effect from the date of dismissal dated 16.2.1990 and pay arrears of salary.
(iii) issue a writ, order or direction as this Hon'ble Court may deem fit and proper under the circumstances of the case.
(iv) award the cost of petition to the petitioner."
4. Since the facts and circumstances of both the writ petitions are common, the writ petitions are decided by a common judgment.
5. The brief facts giving rise to these writ petitions are that Shri Phaya Nath Pandey (petitioner in Writ A No.63734 of 2006) and Shri Dharam Pal (petitioner in Writ A No. 76120 of 2005) were appointed in the years 1966 and 1977 in Railway Protection Force and were registered as Constable Nos. 1670 and No.2492 respectively. They were incriminated in Criminal Case No. 49/85 of 1985 under section 120-B read with section 302 of Indian Penal Code and section 27 of the Arms Act. The said case was tried by the Sessions Judge, Begusarai, Bihar vide Sessions Trial No. 476 of 1986, and finally the trial was concluded and petitioners were convicted and sentenced to life imprisonment. Thereafter, the petitioners were put under suspension vide order dated 23.12.1989 in terms of Rule 136 (1) (b) of the Railway Protection Force Rules 1987 (hereinafter referred as 'Rules').
6. It is apparent from the record that, thereafter, the petitioners had preferred a Criminal Appeal No. 009 of 1990 against the said conviction before the Hon'ble High Court at Patna. The said criminal appeal was registered as 009 of 1990 (Phaya Nath Pandey and others Vs. State of Bihar).
7. The petitioners were immediately enlarged on bail in the above noted criminal appeal by Hon'ble Patna High Court vide order dated 29.01.1990. Immediately thereafter, the petitioners reported Company Commander that they are ready for duty on 05.02.1990. The respondent no.3, i.e. Commanding Officer, No.-II Battalion, Railway Protection Force, Gorakhpur, took cognizance of the trial court judgment dated 18.12.1989 and he came to the conclusion that petitioners were not fit to be kept in service, and their presence in service would destroy the discipline of the force and tarnish its image. In this view of the matter, the respondent no.3 dismissed the petitioners from service w.e.f. 18.12.1989, as per provisions of Rule 162 (1) and (2). The relevant rules is reproduced herein below:-
"162.1- The Divisional Security Commissioner or the Commanding Officer shall go through the record of every case brought against an enrolled member of the Force in the court, and shall take departmental cognizance of every Criminal case in which an enrolled member of the Force is convicted or acquitted or discharged (except when the case is false) and record on appropriate order.
162.2 Effect of imprisonment.-Every enrolled member of the Force punished with imprisonment or released on probation after conviction for an offence implying moral turpitude, such as theft, perjury, rape, or with imprisonment exceeding one month for any other offence or for any matter specified in section 17 shall be proceeded against for dismissal, and shall ordinarily be dismissed from service."
8. Aggrieved with the dismissal order dated 16.02.1990, the petitioner no.1 has preferred Civil Misc. Writ Petition No. 6064 of 1990, before this Hon'ble Court, but during the pendency of the above noted writ petition, the Criminal Appeal No. 099 of 1990, which was filed by the petitioners against the conviction and sentence order dated 18.12.1989, was allowed and the petitioners were acquitted vide order dated 01.10.1997, passed by the Hon'ble Patna High Court. For proper adjudication of the present matter it would be appropriate to reproduced the certain paragraphs of the acquittal order dated 01.10.1997:
"8. There is no eye witness of the alleged occurrence. The learned trial court held these appellants guilty on the circumstantial evidence that these appellants were on patrolling duty with the deceased and that being restricted zone, no outsider could go inside the yard and that the conduct of the appellants in saying this case to be a case of suicide when apparently Jagdish Chandra died a homicidal death go to indicate that these appellants were responsible for his death. Admittedly this appellants were on patrolling duty inside the yard. The yard comprises of a big area. Presence of PW.1, railway driver, PW.2 railway guard, PW.3 another railway driver, got to show that besides the members of patrolling party other railway employees could also go inside the yard. In the first information report ( Exhibit 6), the informant pointed out towards six circumstances to show that these appellants were responsible or the death of Jagdish Chandra. Regarding those six points there is nothing on the record to establish that appellants Mani Ram Yadav, Kabinder Sharma and Lallan Prasad Singh were at 5.30 AM near the place of occurrence or that they denied to have heard any sound of firing. Moreover, it is meaningless in view of the statement of PW.1 that shots were fired in between 3.30 AM and 3.45 AM. The exist injury was in the abdomen and a lay man may be mistaken to treat it as the wound of entry. There is no material on the record to support the sixth point that the appellants wanted to commit theft of articles of wagons and the deceased strongly resisted and for that the appellants killed him.
9. Mr. Ashwani Kumar Siongh, learned advocate for the appellants, cited a decision of case of Gautam Maroti Umale Vs. State of Maharasthtra, reported at 1994 Suppl. (III) SCC 326, where it was held that prosecution must prove each of the circumstances in a case of circumstantial evidence and the circumstances so proved should form a complete chain, inconsistent with innocence of the accused and excluding every other hypothesis, however, remote. It was rightly argued by him that the circumstances against the appellants, much less making out a complete chain, have not been brought on record pointing towards the only inference indicating that these appellants alone could be responsible for the death of Jagdish Chandra.
10. Apart from the objections raised on behalf of the appellants on the ground of fact that no reliable evidence is on record and that circumstances also do not unfailingly indicate towards the appellants for the commission of the murder of Jagdish Chandra, this case must fail only on legal point also as, admittedly, the first information report of this case was the second first information report about the incident. It is admitted in this first information report ( Exhibit 6) itself that on the basis of Fard beyan of appellant Dharampal Singh, Barauni GRP Case No. 49/85 under section 302 of the Indian Penal Code was registered on 24.3.85 by the informant and thereafter this another first information report of the same incident on the own statement of the investigating officer was registered as Barauni GRP Case No. 75/85 dated 10.5.85. The information given in the earlier first information report was not cryptic and it can not be argued that investigation was not initiated on the basis of that first information report. It has been held in Nanavati's Case, reported at AIR 1962 SC 605 that the question whether investigation had commenced or not is a question of fact and it does not depend upon any irregularity committed by the police officer in the matter of recording the first information report. Now once it is established that the present first information report, giving rise to trial of this case was the second first information report of the incident, I must say that the very basis of this case was barred under section 162 of the Criminal Procedure Code. This case must fail on this very ground alone as section 162 of the Criminal Procedure Code imposes a complete ban on the use of statements recorded by the police officer under section 161 of the Criminal Procedure Code for th purpose of corroboration or as substantive evidence.
11. In the result, these appeals are allowed and the judgment of conviction and order of sentence passed against the appellants are set aside. The appellants, who are on bail, are also released from the liabilities of their bail bonds."
9. Thereafter, the petitioner no.1 had filed supplementary affidavit in pending Writ Petition No. 6064 of 1990, alongwith acquittal order dated 01.10.1997, and finally this Court vide order dated 19.02.2005 had disposed of the said writ petition with following observation:-
"By means of the writ petition the petitioner approached this Court for issuing a writ of Certiorari quashing the order dated 16.02.1990 dismissing the petitioner from service. It has been stated by the petitioners that the petitioners were dismissed from service only on the ground of pendency of the criminal case. It has been stated by the petitioner that an F.I.R. was lodged against the petitioners and the petitioners were tried and convicted by the IIIrd Additional Sessions Judge, Begusarai in S.T. No. 476 of 1986 vide order dated 18.12.1989. The copy of the same have been annexed as Annexure-3 to the writ petition. The petitioner further submits that on the basis of the conviction an order dated 16.10.1990 has been passed against the petitioners dismissing the service of the petitioners under Rule 162 (1) (2) of the Railway Protection Force Rules 1987. By way of the supplementary affidavit the petitioners have annexed a Judgment of Patna High Court in Criminal Appeal No. 550 of 1989 and Criminal Appeal No. 009 of 1990. The Patna High Court vide its order dated 15.09.1997 has acquitted the petitioners and the appeal filed on behalf of the petitioners have been allowed / Further case of the petitioner is that on the basis of acquittal by criminal court, the petitioners have submitted an application that as the petitioners have already been acquitted, therefore, the order of dismissal be set aside and the petitioners be reinstated in service. The said application has been field by the petitioners on 27.05.2003, copy of which has been filed by petitioners with the supplementary affidavit.
A counter affidavit has been field by the respondents stating the facts that the copy of the criminal appeal which was submitted by the petitioner was not eligible, therefore, the petitioners were directed to furnish an eligible copy and to appear before the Commanding Officer. It has been stated that up till date they have not appeared before the Competent Authority.
I have heard the learned counsel for the petitioners and Sri Lal Ji Sinha appearing for the respondents. Taking into consideration the facts and circumstances of this case, I feel that it will be appropriate that a direction to this effect be issued to respondent to consider the case of the petitioners on the basis of the application which has been filed annexing copy of the High Court Judgment acquitting the petitioners from criminal charges. The respondent is directed to pass appropriate order for the purpose of grievance of the petitioner relating to reinstatement in service, preferably within a period of three months from the date of production of a certified copy of this order before him.
With these observation the writ petition is disposed of."
10. It is also transpires from the record that petitioner no.1 immediately moved a fresh representation alongwith the copy of the order dated 09.02.2005, passed by this Court, before the respondent no.3, but the same was rejection by the impugned order dated 15.07.2005.
11. Again the petitioner no.1 had preferred Civil Misc. Writ Petition Nos. 76120 of 2005 (Phaya Ram Vs. Union of India and others), and 29472 of 2006 (Dharam Pal Singh vs. Union of India) challenging the order dated 15.07.2005 and 16.02.1990 passed by the respondent no.3 and this Court vide order dated 25.05.2006 had finally disposed of the said writ petitions. It would be useful to reproduced the order dated 25.05.2006:-
"Heard learned counsel for the petitioner and Sri S.S. Srivastava holding brief of Sri Govind Saran for the respondents.
The petitioner was convicted by the trial court in a criminal case. His services were dispensed with by the respondents in the year 1990. The petitioner was, however, ultimately acquitted in a criminal appeal by a judgment of the Patna High Court. The petitioner, thereafter, applied to the respondents for reinstatement in service. The said request of reinstatement has been rejected by the Commanding Officer vide order dated 15.07.2005. The order was passed pursuant to the directions issued by this Court in a writ petition filed by the petitioner challenging his termination order. From a perusal of paragraph 219.4 of the Rules applicable to the controversy, it is evident that the higher authority other than the authority who had passed the order can revise the order in the manner prescribed therein. Learned counsel for the petitioner has invited the attention of the Court to the request made by the petitioner to the Inspector General of Police, Railway Protection Force, Railway Board, New Delhi, dated 27.08.2005. He contends that the said request has not been attended to so far and it is alleged that no decision has been communicated by the Inspector General of Police - Respondent No.2.
Keeping in view the provisions indicated herein above, the Respondent No.2 is directed to decide the said petition of the petitioner dated 27.08.2005 which shall again be produced by the petitioner along with a certified copy of this order and the decision shall be rendered as expeditiously as possible preferably within a period of 3 moths from the date of presentation of a certified copy of this order before the said respondent.
With the aforesaid direction the writ petition is disposed of."
12. In compliance of the order dated 25.05.2006, passed by this Court, the same was rejected by the respondent no.2, the Inspector General, Railway Protection Special Force, Railway Borad, New Delhi, on 19.09.2006 (Annexure No.6 to the writ petition).
13. Sri Hanuman Upadhyay, learned counsel for the petitioners submits that the finding recorded by the respondents while passing the impugned orders, have failed to appreciate the case of the petitioner and rejected the claim in most arbitrary manner. The authorities have also failed to comply with the rule 161 and 162 of the Railway Protection Force Rules, 1987, which have framed under section 21 of the Railway Act.
14. Once the petitioners were acquitted by the Hon'ble Patna High Court and the respondents had also assailed the said dismissal of the criminal appeal, by means of Special Leave Petition, which was also rejected by the Hon'ble Apex Court, therefore, the petitioners could not be blamed for guilty.
15. He further drew the attention of this Court that respondents with malafide intention had deliberately recorded the finding against the petitioners and made certain comments and observation over the judgment passed by Hon'ble Patna High Court. The same is impermissible in law, and the authority can not make any observation against the decision made by the High Court.
16. He has also placed reliance on the observation, which was made by the respondent no.2, while rejecting the claim of the petitioners, that "Government Advocate failed to argue the case before Hon'ble Patna High Court and could not place the correct facts and only on this account the petitioners were acquitted from Hon'ble Patna High Court".
17. Sri Hanuman Upadhyay, learned counsel for the petitioners vehemently submitted that the observation made by the respondent no.2 against the decision made by Hon'ble Patna High Court, is wholly illegal, arbitrary and with full malafide. The petitioners have been victimize by high handedness of respondents and in most sarcastic manner the officer concerned had made remarks over the acquittal order passed by the Patna High Court. For ready reference the relevant observation which was made by the Commanding Officer, No.2BN/RPSF/GRP, in his order dated 15.07.2005 is reproduced herein below:-
"That all accused person convicted by the Additional Sessions Judge filed an appeal to Hon'ble Court Patna. The appeal heard by Hon'ble Mr. Justice N. N. Singh & N. Pandey who without going on merit of the case or discussing the evidence recorded by the Additional Sessions Judge or without giving any adverse comment on the judgment allowed the appeal on very technical ground that recording of another FIR by SVGRP was against the provision of CR.P.C. And acquitted the accused persons. On the face of it the judgment does not seem to be based on correct appreciation of Cr.P.C. It also shows that Government Advocate also failed to argue the case before the Hon'ble High Court Patna as there are thousands of cases where FIR are registered against unknown and after due investigation the cases are converted against named accused person and they are prosecuted and convicted. Accordingly the undersigned sent a proposal to Bihar Government to file an appeal before the Hon'ble Supreme Court after requesting to condone the long delay as a case is important one, where a SRK was murdered by his colleague while performing his lawful duty and especially when the accuse and the deceased where personnel of an Armed Force. The proposal is under the active consideration of Bihar Government.
-----------------------------------I am of the firm opinion that such staff like Dharam Pal and Phaya Nath Pandey who are responsible to murder their colleague and to give the wrong information to Police are responsible for serious misconduct and unbecoming of a member of an Armed Force. it is not reasonable practicable to hold any disciplinary proceeding for their great misconduct which will create high tension and demoralization of the Force. Accordingly action under rule-161.2 has to be taken against them to meet both ends of justice. If at all the order of dismissal dated 16.02.1990 is to be recalled for to meet certain procedural requirement."
18. Sri Hanuman Upadhyay, learned counsel for the petitioners has also drawn attention of the Court towards the observation record by the IG-cum-CSC/RPSF, Railway Board, vide his order dated 19.09.2006. The relevant portion of the order is reproduced herein below:-
"I have gone through the case in detail. This is a case where the Armed Force personnel murdered their colleague by shooting him down from his rifle and further gave a false FIR to Police that some other person had shot him dead. It was really creditable on the part of SI/GRP Shri Anil Kumar Singh to workout the case and prosecute all the above accused persons and get them convicted on the basis of strong circumstantial evidence. It was unfortunate and rather disgusting that the Government Advocate failed to argue the appeal correctly and failed to emphasize the provision of Cr.P.C. correctly due to which Hon'ble Patna High Court allow the appeal of accused person on technical ground as stated above. Due to which the accused persons are pressing that they should be re-instated in service."
19. Learned counsel for the petitioners has vehemently urged to the Court that the conduct of the respondent would eventually establish before this Hon'ble Court that from very beginning the respondents were bent upon to terminate the services of the petitioners, even though the petitioner was Honorably acquitted in the criminal case. The respondents, who were holding a responsible post, had deliberately made observation as indicated above to tarnish the image of judiciary and to achieve their hidden agenda for not allowing the petitioner in service.
20. He further submits that there was no occasion for making such comments and holding the petitioners guilty in a criminal case. In the impugned order the respondents have casted stigma over the petitioner to such an extent that infact the petitioner had killed his colleague, even though he had been acquitted by the Patna High Court, which had considered the case throughly and held with categorical finding that no reliable evidence was on record and that circumstances also not unfailingly indicate towards the appellants for the commission of the murder of Jagdish Chandra.
21. He further submits that once the Hon'ble Patna High Court has acquitted the petitioners and thereafter the State Government has also preferred the Special Leave Petition before Hon'ble Apex Court against the said acquittal, which was also rejected by the Hon'ble Apex Court, then the respondents had no right to make any observation regarding honorable acquittal.
22. He further submits that in the present matter admittedly no departmental inquiry had taken place and placed his reliance over the Rules 161 (ii). For ready reference, the same is reproduced herein below:-
"161 (ii)-where the authority competent to impose the punishment is satisfied for reason to be recorded by it in writing that it is not reasonably practicable to hold an inquiry in the manner provided in these rules."
23. Learned counsel for the petitioners submits that while taking recourse of Rules 161.2 the Commanding Officer has not made any observation or recorded reasons that, under what circumstances, it was not reasonably practicable to hold an inquiry in the matter, where as the respondents have only made observation that "it is not reasonable practicable to hold any disciplinary proceeding for their great misconduct which will create high tension and demoralization of the Force. Accordingly action under rule-161.2 has to be taken against them to meet both ends of justice."
24. Learned counsel for the petitioners has placed reliance the judgment passed by this Court in Suraj Singh Vs. State of U.P. and others, reported in 2007 Vol 1 ESC 699 (Allahabad). The relevant portion of the judgment is reproduced herein below:-
"12. Learned counsel for the petitioner has drawn attention of this Court to a judgment of this Court rendered in the case of Dhani Ram versus Superintendent of Police, Hardoi, reported in (1989) 1 UPLBEC 624 (Lucknow Bench). In this case, it has been held that the Regulation 493 (c) simply provides for ''a judicial acquittal'.
13. Having heard learned counsel for the petitioner and the learned standing counsel and having perused the relevant provisions of Regulation 493 (c ) of the U.P. Police Regulations, it is abundantly clear that there is no stipulation in the Regulation 493 (c) with regard to the nature of acquittal and no distinction has been made between a ''clear acquittal' and ''acquittal', which is made basis of "benefit of doubt" in the impugned order.
14. Denial of the benefit of words "judicially acquitted" as provided in of Regulation 493 (c), after the affirmation of judgment of acquittal by the Hon'ble Apex Court, on the pretext that the judgment of acquittal is based on "benefit of doubt" is nothing else but sitting over an appeal or revision of the judgment of acquittal. ''Judicial acquittal' means ''acquittal' by the court of law. As such judicial acquittal is an ''acquittal' simplicitor.
15. Notably once the judgment of acquittal has become final by the order of Hon'ble Apex Court, under Article 141 of the Constitution of India, it is incumbent upon every State, Tribunal, Courts and functionary of the State to comply with it in letters and spirit.
16. It is also contended on behalf of the State that the petitioner is not entitled to any back wages on the principle of "no work no pay" and the petitioner is also not entitled to any other consequential benefits for the duties that he has not discharged from the date of acquittal. The petitioner was acquitted with effect from 24.2.1994 and he made a representation to be reinstated on 7.12.1995. The authorities concerned has frustrated the attempt of the petitioner to get reinstated. Despite the fact that the Regulation 493 (c) clearly provides that once a person is acquitted on criminal charges, he is liable to get reinstated.
17. The Hon'ble Supreme Court in the case of Union of India versus K.V. Jankiraman, reported in AIR 1991 SC 2010, held that normal rule of "no work no pay" cannot be applied to cases such as the present one where the employee although he is willing to work is kept away from work by the authorities for no fault of his. This is not a case where the employee remained away from work for his own reasons. Other than the criminal proceedings, which were initiated against the petitioner from which he was judicially acquitted, there is not even censor note against him. In the present case the authority concerned failed to exercise the jurisdiction vested in him under Regulation 493 (c) by not passing an appropriate order of reinstatement. Therefore in view of the above discussion, I am of the opinion, the petitioner deserves to be reinstated with full consequential benefits.
18. Such being the case, the petitioner having been tried and judicially acquitted which was later on confirmed by the Hon'ble Apex Court by its order dated 23.9.2003, there could be no doubt that the he has been ''judicially acquitted' and therefore he is entitled for the benefit of Regulation 493 (c) of the U.P. Police Regulations. The order dated 30.10.2000, by which the distinction has been sought to be made, is clearly misconceived and deserves to be quashed."
25. Learned counsel for the petitioners has also argued that in the present matter the authority had never given any cogent reason why the departmental enquiry was not possible and had placed reliance the judgment passed by Hon'ble Apex Court in Ravindra Prasad Vs. Union of India, reported in 2010 Vol 6 AWC 5711. The relevant portion of the judgment is reproduced herein below:-
"6. Having heard learned counsel for the parties. In my opinion, the reason for dispensing with the inquiry is in clear teeth the of law pronounced by the Apex Court in the case of Chief Security Officer (supra) in Para 5 thereof quoted below:-
"In our view it is not necessary to go into the submission made by Dr. Anand Prakash because we find that in this case the reason given for dispensing with the enquiry is totally irrelevant and totally insufficient in law. It is common ground that under Rules 44 to 46 of the said Rules the normal procedure for removal of an employee is that before any order for removal from service can be passed the employee concerned must be given notice and an enquiry must be held on charges supplied to the employees concerned. In the present case the only reason given for dispensing with that enquiry was that it was considered not feasible or desirable to procure witness of the security/other railway employees since this will expose these witnesses and make them ineffective in the future. It was stated further that if these witnesses were asked to appear at a confronted enquiry they were likely to suffer personal humiliation and insults and even their family members might become targets of acts of violence. In our view these reasons are totally insufficient in law. We fail to understand how if these witnesses appeared at a confronted enquiry, they are likely to suffer personal humiliation and insults. These are normal witnesses and they could not be said to b e placed in any delicate or special position in which asking them to appear at a confronted enquiry would render them subject to any danger to which witnesses are not normally subjected and hence these grounds constitute no justification for dispensing with the enquiry. There is total absence of sufficient material or good grounds for dispensing with the enquiry. In this view it is not necessary for us to consider whether any fresh opportunity was required to be given before imposing an order of punishment. In the result the appeal fails and is dismissed. There will be no order as to costs."
7. The rules applicable to the present controversy namely Rule 161 is quoted bellow:
"161. Special Procedure in certain cases.- Notwithstanding anything contains anywhere in these rules-
(i) Where are punishment is imposed on an enrolled member of the Force on the ground of conduct which has led to his conviction on a criminal charge or;
(ii) (ii) Where the authority competent to impose the punishment is satisfied for reasons to be recorded by it in writing that is not reasonably practicable to hold an inquiry in the manner provided in these rules;
(iii) Where the President is satisfied that in the interest of security of State and the maintenance of integrity in the Force, it is not expedient to hold any inquiry in the manner provided in these rules; the authority competent to impose the punishment may consider the circumstances of the case and make such orders thereof as it deems fit."
8. A perusal of the Sub Rule (ii) leaves no room for doubt that a satisfaction which has to be recorded by the competent authority is to be supported by reasons to be recorded in writing that it is not reasonably practicable to hold an enquiry.
9. In the instant case the reason given in support of such satisfaction does not satisfy the test of law as indicated herein above.
10. The checking team constitutes of officials and there is no plausible explanation as to why they could not be produced to testify the incident during enquiry. The satisfaction therefore as recorded is no satisfaction in the eyes of law and does not hold water nor does it appeal to reason. In such a situation and in view of the similar interpretation of law given with regard to similar set of rules under the U.P. Police Officers of Subordinate Ranks (Punishment and Appeal) Rules, 1991 as pronounced in the case of Ram Babu Singh Vs. State of U.P. and another, reported in 2009 (5) ADJ 581 and Ravindra Raghav Vs. State of U.P. and others, reported in 2005 (3) AWC 2409 the order impugned is unsustainable. Accordingly the impugned order dated 10th April 2007 is quashed.
11. In view of the above the consequential orders of appeal and reversion dated 8th October, 2007 and 28th April, 2008 are also quashed.
12. It shall be open to the authority to proceed to hold an enquiry against the petitioner in accordance with the rules applicable."
26. Learned counsel for the petitioners has also placed reliance the judgment passed by this Court in Rajendra Singh Vs. State of U.P. And others, reported in 2012 Vol 4 ESC 2338. The relevant portion of the judgment is reproduced herein below:-
"9. Having considered the submissions, we find substance in the argument advanced by the learned counsel for the appellant. Rule 8(2)(b) of the 1991 Rules is an exception to the general procedure followed in awarding punishment to the Government Servants. It is also an exception to Article-311 (1) and (2) of the Constitution of India, therefore, due caution and care is to be exercised while invoking the said provision. The Rule itself mentions that no Police Officer shall be dismissed or removed or reduced in rank except after proper enquiry and disciplinary proceeding as contemplated in the said Rules, provided that the said Rule would not apply under the following three given circumstances:-
(i) Where the punishment is on the ground of conduct which has led to the conviction of the employee on the criminal charge.
(ii) Where for reasons to be recorded, it was found to be not reasonably practicable to hold the enquiry and lastly,
(iii) Where the Government is satisfied that in the interest of the security of the State it is not expedient to hold such enquiry.
10. He who holds the procedural sword must perish with the sword. Thus where the procedure prescribed has not been followed by the authority then the decision taken in violation of such prescribed statutory procedure cannot be sustained. Undisputedly, the punishment order dated 06.12.1999 did not spell out the reasons as to why it was not reasonably practicable to hold the enquiry. The learned Single Judge has also recorded a similar finding. However, it was specifically clarified by the learned Single Judge in the last part of the order that the order would not amount to reinstatement or setting aside of the termination order. It is this part of the order which is offending the appellant.
11. A Division Bench of this Court, of which one of us (S.R. Alam, C.J.) was a member, in the case of State of U.P. & Others Vs. Chandrika Prasad, 2006 (1) ESC 374 (All.) (DB), while considering Rule 8 of the Rules, in paragraph 15 of the judgment, observed as under :-
"15. The words some "reasons to be recorded in writing that it is not reasonably practicable to hold enquiry" means that there must be some material for satisfaction of the disciplinary authority that it is not reasonably practicable. The decision to dispense with the departmental enquiry cannot, therefore, be rested solely on the ipse dixit of the concerned authority. The Apex Court in the case of Jaswant Singh v. State of Punjab and others, AIR 1991 SC 385 in para 5 at page 390 has observed as under :-
"It was incumbent on the respondents to disclose to the Court the material in existence at the date of the passing of the impugned order in support of the subjective satisfaction recorded by respondent No.3 in the impugned order. Clause (b) of the second proviso to Article 311 (2) can be invoked only when the authority is satisfied from the material placed before him that it is not reasonably practicable to hold a departmental enquiry."
"...When the satisfaction of the concerned authority is questioned in a court of law, it is incumbent on those who support the order to show that the satisfaction is based on certain objective facts and is not the outcome of the whim or caprice of the concerned officer."
27. Learned counsel for the petitioners has also placed reliance the judgment passed by this Court in Ratan Singh Vs. State of U.P, reported in ADJ 2013 Vol 11 352. The relevant portion of the judgment is reproduced herein below:-
14. It has also been held by the Apex Court in the same judgment that in cases where an employee is convicted on a criminal charge, the, appropriate course would be in all such cases to take action and not to wait for the result of the appeal or revision as the case may be. It is always open to the authorities to revise its order and reinstate the Government Servant with all the benefit if in appeal or other proceedings the Government Servant accused is acquitted.
15. Similar view has been taken by a Division Bench of this Court in the case of Mohal Lal Vs. State of U.P., 1998 (78) FLR 987: (1998 All LJ 987) and relying on Nagoor Meera Case: (AIR 1995 SC 1364) ( supra) this Court in para 7 held as under:-
"Taking proceedings for and passing orders of dismissal, removal or reduction in rank of a Government servant who has been convicted by a criminal court is not barred merely because the sentence and order is suspended by the Appellate Court or on the ground that the said (Government servant-accused has been released on bail pending the appeal. In view of this authoritative pronouncement, the order dismissing the appellant from service cannot be set aside on the ground that the operation of the judgment by which the appellant had been convicted under Section 304, Part -I IPC has been stayed in the Criminal Appeal preferred by him."
16. In the circumstances, it cannot be held that the respondents could not have taken recourse to regulation 39(4) of regulation of 1956 considering the conduct led to conviction of a criminal charge. The submission of the learned counsel for the petitioner, therefore, is rejected."
4. It is next contended that the impugned order is founded on mere conviction and the conduct led to conviction so as to justify maximum punishment of dismissal has not been considered by competent authority. In a mechanical manner on the basis of mere conviction it has imposed maximum penalty of dismissal upon petitioner.
5. The question as to whether the order must disclose application of mind on the part of the disciplinary authority that it has considered the question of conduct led to conviction of the Government servant before passing punishment order is no more res integra.
6. In the case of Union of India Vs. Tulsi Ram Patel, AIR 1985 SC 1416, the Apex Court while considering the pare materia provision under Article 311 of the Constitution of India, held as under:-
"The second proviso will apply only where the conduct of a government servant is such as he deserves the punishment of dismissal, removal or reduction in rank. If the conduct is such as to deserve a punishment different from those mentioned above, the second proviso cannot come into play at all because Article 311(2) is itself confined only to these three penalties. Therefore, before denying a government servant his constitutional right to an inquiry, the first consideration would be whether the conduct of the concerned, government servant is such as justified the penalty of dismissal, removal or reduction in rank. Once that conclusion is reached and the condition specified in the relevant clause of the second proviso is satisfied, that proviso becomes applicable and the government servant is not entitled to an enquiry."
7. A similar question came up for consideration before a Division Bench of this Court in the case of Shyam Narain Shukla Vs. state of U.P. (1988) 6 LCD 530 and this Court held as under:-
"In view of the above decision of the Supreme Court, it has to be held that whenever a Government servant is convicted of an offence, he cannot be dismissed from service merely on the ground of conviction but the appropriate authority has to consider the conduct of such employee leading to his conviction and then to decide what punishment is to be inflicted upon him. In the matter of consideration of conduct as also the quantum of punishment the employee has not to be joined and the decision has to be taken by the appropriate authority independently of the employee who, as laid down by the Supreme Court, is not to be given an opportunity of hearing at that stage.
8. Similarly another Division Bench of this Court in Sadanand Mishra Vs. State of U.P., 1993 LCD page 70 held that on the conviction of an employee of a criminal charge, the order of punishment cannot be passed unless the conduct which has led to his conviction is also considered. Further, it is held that the scrutiny of conduct of an employee leading to his conviction is to be done ex parte and an opportunity of hearing is not to be provided for this purpose to the employee concerned.
9. In view of the finding in favour of petitioner on second issue, as above, that, the impugned order of dismissal has not been passed by competent authority after considering "conduct led to conviction" but only in a mechanical way on the basis of mere conviction, the writ petition deserves to be allowed."
28. Learned counsel for the petitioners have also placed reliance the judgment passed by Hon'ble Apex Court in THE DEPUTY DIRECTOR OF COLLEGIATE EDUCATION Vs. S. NAGOOR MEERA, reported in AIR 1995 SC 1364. The relevant portion of the judgment is reproduced herein below:-
8. We need not, concerns ourselves any more with the power of the appellate court under the Code of Criminal Procedure for the reason that what is relevant for clause (a) of the second proviso to Article 311(2) is the "conduct which has led to his conviction on a criminal charge" and there can be no question of suspending the conduct. We are, therefore, of the opinion that taking proceedings for and passing orders of dismissal, removal or reduction in rank of a government servant who has been convicted by a criminal court is not barred merely because the sentence or order is suspended by the appellate court or on the ground that the said government servant-accused has been released on bail pending the appeal. It was a case arising under Section 267 of the Companies Act, which provided a disqualification on the ground of conviction for an offence involving moral turpitude.
9. The Tribunal seems to be of the opinion that until the appeal against the conviction is disposed of, action under clause (a) of the second proviso to Article 311(2) is not permissible. We see no basis or justification for the said view. The more appropriate course in all such cases is to take action under clause (a) of the second proviso to Article 311(2) once a government servant is convicted of a criminal charge and not to wait for the appeal or revision, as the case may be. If, however, the government servant- accused is acquitted on appeal or other proceeding, the order can always be revised and if the government servant is reinstated, he will be entitled to all the benefits to which he would have been entitled to had he continued in service. The, other course suggested, viz., to wait till the appeal, revision and other remedies are over, would not be advisable since it would mean continuing in service a person who has been convicted of a serious offence by a criminal court. It should be remembered that the action under clause (a) of the second proviso to Article 311(2) will be taken only where the conduct which has led to his conviction is such that it deserves any of the three major punishments mentioned in Article 311(2). As held by this court in Shankardass v. Union of India (1985 (2) S.C.R. 358):
"Clause (a) of the second proviso to Article 311(2) of the Constitution confers on the government the power to dismiss a person from services "on the ground of conduct which has led to his conviction on a criminal charge." But that power like every other power has to be exercised fairly, justly and reasonably. Surely, the Constitution does not contemplate that a government servant who is convicted for parking his scooter in a no-parking area should be dismissed from service. He may perhaps not be entitled to be heard on the question of penalty since clause (a) of the second proviso to Article 311(2) makes the provisions of that article inapplicable when a penalty is to be imposed on a Government servant on the ground of conduct which has led to his conviction on a criminal charge. But the right to impose a penalty carries with it the duty to act justly."
29. Learned counsel for the petitioners submit that since induction in Railway Protection Force, the petitioner's work and conduct was always commendable and at no point of time he had ever been punished by any officer, except the said incident, in which the petitioners have been falsely implicated. The integrity and credibility of the petitioners had never been at stack.
30. He also placed his reliance that no where in the counter affidavit the department had ever been taken any plea regarding non suitability of a person to be retained in Railway Protection Force.
31. On the other hand Sri Govind Saran, learned counsel for the respondents submits that in the present matter the petitioners have not preferred any statutory appeal or revision against the impugned order, therefore, the same may be dismissed on the ground of efficacious alternative remedy.
32. Mr. Govind Saran, learned counsel for the respondents further submits that on the date of incidence i.e. 23rd/24th March, 1985 at 11.30 p.m. An Arms party of RPSF 'D' Coy. 2nd BN consisting of HRK/Jagdish Chandra, RK/Dharam Pal Singh, Phaya Nath Pandey and Bhagwan Dubey reached Garhara yard at 02.10 a.m. and reported for their duty with RPF Mani Ram Yadav, Lallan Prasad Singh and Kavinder Sharma who were on duty at Garhara Yard. While all were on duty, at about 05.30 AM., there was sound of firing and Dharam Pal rushed towards the sound but he could not find any thing. RPF/Lallan Singh informed him that a jawan of RPSF was lying and then both went to the eastern side and found that Jagdish Chandra was lying by his left hand side and his rifle was lying in his side on the ground and there was bleeding from his abdomen. By the time all other said members of RPSF and RPF reached there, a telephonic information was sent to the hospital for ambulance and the injured was brought to the hospital. A telephonic message was also sent to Mokama and GRP/Barauni. By the time RPSF Company Commander, Shri S.B. Goshwami and Outpost Incharge of Barauni, reached the hospital, Shri Jagdish Chandra had succumbed to the injuries.
33. He further submits that case was thoroughly investigated by Sri Anil Kumar Singh, SI/GRP, who by conclusive circumstantial evidence proved that SRK/Jagdish Chandra was murdered jointly by his colleagues Dharm Pal Singh, Phaya Nath Pandey, Bhagwan Dubey, Mani Ram Yadav, Lallan Prasad Singh, Kavindra Sharma by shooting him from the rifle of deceased Jagdish Chandra.
34. He further submits that on account of their involvement in criminal case, they were rightly sentenced to life imprisonment by a Sessions Court and petitioners were acquitted by Hon'ble Patna High Court on technicalities and Special Leave Petition filed by the respondents was also rejected as time barred. Therefore, it can not be presumed that the petitioners were acquitted in the criminal case honorably and the department was obliged to take such kind of persons, who had been implicated in criminal case.
35. He further submits that as per the special procedure as mentioned in Rule 161, the competent authority had every right to impose punishment, if it is satisfied for reason to be recorded that person is not suitable for the force and also to ensure the maintenance of integrity of the force, shall consider the award of punishment of dismissal or removal from service. He submits that in the present matter, petitioners were admittedly convicted from the Sessions Court, therefore, the authority was justified to terminate their services.
36. Learned counsel for the respondents has also placed his reliance on the judgment of Chandra Bhushan vs District Magistrate, Fatehpur, reported in (2000) 3 UPLBEC 2516. The relevant portion of the judgment is reproduce herein below:-
"4. We have heard learned counsel for the appellant and have perused the record. Learned counsel for the appellant has urged that when the appellant was involved in a criminal case on the same charges which were being investigated in the depart mental proceeding, then if he was acquitted from the criminal court, then the dismissal order should have been recalled and he should have been reinstated on his post. Further submission of the learned counsel is that the appellant remained under suspension for 8 years and twice inquiry started against him in respect of the same charges which was not proper in the eye of law and further the amount was ultimately recovered from the G.P.F.. therefore, the case of the appellant should have been reconsidered for reinstatement.
5. After hearing learned counsel for the appellant we are of the view that the view taken by the learned single Judge requires no interference by this Court. From the record, it is apparent that a report was submitted against the appellant for embezzlement which was enquired, opportunity was given to the appellant then the finding was recorded against him by the competent authority and it was found that the appellant is not a fit person to be retained in service. This finding is based on evidence and if the employer does not want to retain an employee on whom the employer has lost confidence and his service has been legally terminated, this Court cannot compel the employer to reappoint him. We are of the view that the judgment of learned single Judge requires no interference."
37. Learned counsel for the respondents has also placed his reliance on the judgment of Manager R.B.I. Banglor Vs. S. Mani 2005 SCC (L & S), in which it is provided that, if an employee is acquitted in criminal proceeding on the ground of benefit of doubt, the authority is not bound to re-instate him automatically.
38. Learned counsel for the respondents has also placed reliance on the judgment dated 30.11.2012, passed by this Court in Appeal No. 8513 of 2012 (D.I.G. of Police Vs. S. Samuthiram), reported in 2013 SCC (L & S) 229. By the said judgment he submits that there is distinction between honorable acquittal and technical acquittal and Hon'ble Apex Court always deprecated the reinstatement of an employee on account of technical acquittal.
39. Learned counsel for the respondents submits that in view of the aforesaid facts and circumstances, the petitioner has no claim to be reinstated as he was not acquitted honorably, therefore, the authority was not compelled to take him in service and impugned orders passed by the respondents are fully justified and sustainable in the present facts and circumstances of the case.
40. Heard the rival submissions of learned counsel for the parties and perused the record.
41. In the present matter the petitioners were appointed in the year 1966 and 1977 in Railway Protection Force and a criminal case No. 49 of 1985 was registered against the petitioners and the said case was tried by the Sessions Judge, Begusarai, Bihar vide Sessions Trial No. 76 of 1986, and finally convicted the petitioner. Thereafter, the petitioners were placed under suspension in contemplation of Rule 136 (1) (b) of the Railway Protection Force Rules 1987.
42. Against the said conviction the petitioners had preferred a criminal appeal before the Hon'ble High Court at Patna. Initially the petitioners were enlarge on bail and thereafter, finally the Commanding Officer of the Railway Protection Force had terminated the services of the petitioners on the ground that petitioners were convicted in Sessions Trial w.e.f. 18.12.1989, as per the provisions of Rule 162 (1) and (2) of the Railway Act.
43. It is apparent from the record that finally the Patna High Court had acquitted the petitioners vide order dated 01.10.1997. In the said judgment the Hon'ble Patna High Court has clearly held that circumstances also do not unfailingly indicate that the appellants were responsible for commission of the murder of Jagdish Chandra and finally the appeal was allowed and the sentence order passed against the appellant (petitioner) was set-aside.
44. It is also apparent from the record that acquittal order dated 01.10.1997 was also assailed before Hon'ble Apex Court by the State and the same was also rejected by the Hon'ble Apex Court.
45. In the meanwhile the petitioner no.1 once acquitted had filed Writ Petition No. 6064 of 1990 for reinstatement, the same was disposed of by this Court vide order dated 19.02.205 and again the respondent no.3 had rejected the claim of the petitioners by means of impugned order dated 15.07.2005.
46. The petitioners again filed Civil Misc. Writ Petition No. 29472 of 2006 which was disposed of by this Court vide order dated 25.05.2006 and in compliance the respondent no.2, the Inspector General, Railway Protection Special Force, Railway Borad, New Delhi, had rejected the claim of the petitioners vide order dated 19.09.2006.
47. In the present matter learned counsel for the petitioners has tried to submit before this Court that once the petitioners was honorably acquitted from Hon'ble Patna High Court and Special Leave Petition was also rejected by Hon'ble Apex Court, then the petitioners had every right to be inducted in service and admittedly once the department had not made any departmental inquiry in the matter and failed to comply the rule 161 (1) & (2) of the Rules 1987 and further tried to convince the Court that respondent had no authority to make any observation against the judicial pronouncement.
48. It is apparent from the record that twice the matter had been remanded back by the Hon'ble Hihg Court to the competent authority to decide the claim of the petitioners but as observed above, it is apparent that respondent authority every time makes certain observation, which are infact contemptuous in nature, but at this stage this Court has refrained to make any observation to the authority concerned.
49. In the present matter much emphasis has been given by the learned counsel for the respondent about the honorable acquittal. The meaning of the expression ''honorable acquittal' came up for consideration before this Court in Reserve Bank of India, New Delhi v. Bhopal Singh Panchal (1994) 1 SCC 541. In that case, the Court has considered the impact of Regulation 46(4) dealing with honourable acquittal by a criminal court on the disciplinary proceedings. In that context, the 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.
50. In R.P. Kapoor v. Union of India, AIR 1964 SC 787, it was held even in the case of acquittal, departmental proceedings may follow where the acquittal is other than honourable. In State of Assam and another v. Raghava Rajgopalachari reported in 1972 SLR 45, the Hon'ble Apex Court quoted with approval the views expressed by Lord Williams, J. in (1934) 61 ILR Cal. 168 which is as follows:
"The expression "honourably acquitted" is one which is unknown to court of justice. Apparently it is a form of order used in courts martial and other extra judicial tribunals. We said in our judgment that we accepted the explanation given by the appellant believed it to be true and considered that it ought to have been accepted by the Government authorities and by the magistrate. Further, we decided that the appellant had not misappropriated the monies referred to in the charge. It is thus clear that the effect of our judgment was that the appellant was acquitted as fully and completely as it was possible for him to be acquitted. Presumably, this is equivalent to what Government authorities term ''honourably acquitted'".
51. In the present matter there is also another issue, which relates whether departmental and criminal proceedings may go on simultaneously. In the case of Capt. M Paul Anthony vs. Bharat Gold Mines Ltd. (supra), the Apex Court, after considering various decisions of the Apex Court, in paragraph 20, has formulated certain parameters with regard to departmental proceedings and the proceedings in a criminal case, which reads as under:
"20. The conclusions which are deductible from various decisions of this Court referred to above are:
(i) Departmental proceedings and proceedings in a criminal case can proceed simultaneously as there is no bar in their being conducted simultaneously though separately.
(ii) If the departmental proceedings and the criminal case are based on identical and similar set of facts and the charge in the criminal case against the delinquent employee is of a grave nature which involves complicated questions of law and fact, it would be desirable to stay the departmental proceedings till the conclusion of the criminal case.
(iii) Whether the nature of a charge in a criminal case is grave and whether complicated questions of fact and law are involved in that case, will depend upon the nature of offence, the nature of the case launched against the employee on the basis of evidence and material collected against him during investigation or as reflected in the chargesheet.
(iv) The factors mentioned at (ii) and (iii) above cannot be considered in isolation to stay the departmental proceedings, but due regard has to be given to the fact that the departmental proceedings cannot be unduly delayed.
(v) If the criminal case does not proceed or its disposal is being unduly delayed, the departmental proceedings, even if they were stayed on account of the pendency of the criminal case, can be resumed and proceeded with so as to conclude them at an early date, so that if the employee is found not guilty his honour may be vindicated and in case he is found guilty, administration may get rid of him at the earliest."
52. In the case of State Bank of India and others vs. R.B Sharma, reported in (2004) 7 SCC 27, the Apex Court, in paragraph 8, 9, 10 and 11, held as follows:
"8. The purpose of departmental enquiry and of prosecution are two different and distinct aspects. Criminal prosecution is launched for an offence for violation of a duty the offender owes to the society, or for breach of which law has provided that the offender shall make satisfaction to the public. So crime is an act of commission in violation of law or of omission of public duty. The departmental enquiry is to maintain discipline in the service and efficiency of public service. It would, therefore, be expedient that the disciplinary proceedings are conducted and completed as expeditiously as possible. It is not, therefore, desirable to lay down any guidelines as inflexible rules in which the departmental proceedings may or may not be stayed pending trial in criminal case against the delinquent officer. Each case requires to be considered in the backdrop of its own facts and circumstances. There would be no bar to proceed simultaneously with departmental enquiry and trial of a criminal case unless the charge in the criminal trial is of grave nature involving complicated questions of fact and law. Offence generally implies infringement of public duty, as distinguished from mere private rights punishable under criminal law. When trial for criminal offence is conducted it should be in accordance with proof of the offence as per the evidence defined under the provisions of the Indian Evidence Act 1872 (in short the 'Evidence Act'). Converse is the case of departmental enquiry. The enquiry in a departmental proceedings relates to conduct or breach of duty of the delinquent officer to punish him for his misconduct defined under the relevant statutory rules or law. That the strict standard of proof or applicability of the Evidence Act stands excluded is a settled legal position. Under these circumstances, what is required to be seen is whether the department enquiry would seriously prejudice the delinquent in his defence at the trial in a criminal case. It is always a question of fact to be considered in each case depending on its own facts and circumstances.
9. A three-judge Bench of this Court in Depot Manager, A.P. State Road Transport Corporation v. Mohd. Yousuf Miya and Ors. (1997 (2) SCC 699) analysed the legal position in great detail on the above lines.
10. The aforesaid position was also noted in State of Rajasthan v. B.K. Meena (1996 (6) SCC 417).
11. There can be no straight jacket formula as to in which case the departmental proceedings are to be stayed. There may be cases where the trial of the case gets prolonged by the dilatory method adopted by delinquent official. He cannot be permitted to, on one hand, prolong criminal case and at the same time contend that the departmental proceedings should be stayed on the ground that the criminal case is pending.
53. From perusal of the decisions of the Apex Court, referred hereinabove, in my view, briefly, the Apex Court has laid down following principles:
(a) Departmental proceeding and the criminal proceeding are two different and distinct proceedings. The purpose of both the proceedings are different. The criminal prosecution is launched for an offence for violation of a duty the offender owes to the society, or for breach of which law has provided that the offence shall make satisfaction to the public whereas the departmental enquiry is meant to maintain discipline in the service and efficiency of public service.
(b) There would be no bar to proceed, simultaneously with departmental enquiry and the trial of a criminal case unless the charge in the criminal trial is of grave nature involving complicated questions of fact and law.
(c) The enquiry in a departmental proceeding relates to conduct or breach of duty of the delinquent officer to punish him for his misconduct defined under the relevant statutory rules or law. The strict standard of proof or applicability of the Evidence Act stands excluded.
(d) The only ground for staying the disciplinary proceeding is "that the defence of the employee in the criminal case may not be prejudiced."
(e) 'Advisability', 'desirability' or 'propriety', as the case may be, has to be determined in each case taking into consideration all the facts and circumstances of the case. It is only a factor which will go into the scales while judging the advisability or desirability of staying the disciplinary proceedings. One of the contending consideration is that the disciplinary enquiry cannot be and should not be delayed unduly. So far as criminal cases are concerned, it is well known that they drag on endlessly where high officials or persons holding high public offices involved.
(f) The standard of proof required in the departmental proceedings is not the same as is required to prove a criminal charge and even if there is an acquittal in the criminal proceedings, the same does not bar departmental proceedings.
(g) In the absence of any provision in the Service Rule for reinstatement, if an employee is honourably acquitted by a criminal court, even then no right is conferred on the employee to claim any benefit, including the reinstatement for reason 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 a reasonable doubt, the accused is assumed to be innocent.
(h) 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., but it may not of any help in the disciplinary proceedings.
54. In the present case this is an admitted situation that department had not proceeded in the matter and taking into recourse of Rule 161.2 the services of the petitioners were terminated. But at the same time it is highly important to mention that while dispensing the inquiry the officer had observed that "it is not reasonable practicable to hold any disciplinary proceeding for their great misconduct which will create high tension and demoralization of the Force. Accordingly action under Rule-161.2 has to be taken against them to meet both ends of justice."
55. The Hon'ble Apex Court in Ravindra Prasad (Supra) clearly held that the reason for dispensing with the enquiry must be cogent and the authority is duty bound to record reason for dispensing with that enquiry and if it was considered not be feasible or desirable the same may also be indicated. But in the present matter the record clearly reveals that reason for dispensing the enquiry was totally insufficient, as indicated above the Hon'ble Apex Court has clearly laid down parameters in this regard, but the same are missing in the present matter.
56. A perusal of Sub Rule 2 of Rule 161 leaves no room for doubt, that a satisfaction must be recorded by the competent authority and there must be reasons in writing that it is not reasonably practicable to hold an inquiry. In the instance case the reason has not given for such a satisfaction of law as indicated herein above. It is clear that the procedure prescribed has not been followed by the authority when the decision was taken.
57. It is also well settled that once the government servant-accused is acquitted in appeal or in other judicial process, the order can always be revisable and if the government servant reinstated he will be entitled to all benefits which he was otherwise entitled, if he had continued in service.
58. In the present matter the petitioners were acquitted in criminal appeal and matter traveled up the Hon'ble Apex Court and the acquittal order was not upset. The respondents in mechanical manner on the basis of mere conviction in Sessions Trial, had imposed the maximum penalty of dismissal. Where the procedure prescribed has not been followed by the authority when the decision of dismissal has been taken the same was in violation of prescribed procedure, and the same can not be sustained.
59. Even though in the present matter appellate authority had every knowledge about the acquittal of the petitioners from Hon'ble Patna High Court, but instead of passing some positive order they had made certain comments over the judgment passed by the Hon'ble Patna High Court, and at no point of time, they had made any observation in the impugned order regarding under what circumstance it was not practicable to hold departmental enquiry in the matter, and as such no opportunity was afforded to the petitioners, therefore, the orders impugned cannot be sustainable as indicated above and as such the impugned orders dated 19.09.2006 (Annexure-6) passed by respondent no.2, 15.07.2005 (Annexure-3), and 16.02.1990 (Annexure-1) passed by respondent No.3 (Writ A No.63734 of 2006) and impugned order dated 16.2.1990 passed by respondent no.2 ( Writ A No.76120 of 2005) are unsustainable and accordingly quashed.
60. With the aforesaid observation, both the writ petitions are allowed.
Order Date :- 14 .10.2014 / VKG