Hon'ble Dr. Satish Chandra,J.
Heard Shri Dipak Seth learned counsel for the petitioner. Learned Standing Counsel appears for the State-respondents.
The petitioner was serving as Deputy Superintendent of Police/Circle Officer, Sadar, District Pratapgarh. He was placed under suspension on 10.6.2008, on the allegations that he committed rape of the wife of a follower in GRP, on 6.6.2008, and was arrested in the crime under Section 376 (2) (a) IPC giving rise to the writ petition.
In this petition, the Court had stayed the final decision to be taken in the departmental inquiry.
Learned Standing Counsel has pointed out that the petitioner did not participate in the departmental enquiry. After completing the enquiry the inquiry officer sent the report with recommendation to dismiss the petitioner form service. On account of the stay order the final decision could not be taken by the disciplinary authority. The criminal case under Section 376 (2) (a) IPC, on account of which the petitioner was suspended, has resulted into acquittal on 18.11.2009.
Learned counsel for the petitioner states that where an employee has been acquitted, he can not be dismissed from service on the basis of same charges which were subject matter of the criminal case. He has relied upon G.M. Tank v. State of Gujarat and others reported in (2006) 5 SCC 446 in -2- which it was held that where the departmental inquiry and criminal proceedings are based on same set of facts, charges, evidence and witnesses and in which accused has been honourably acquitted, in a case on corruption charges there could be no evidence against the employee to hold him guilty in the departmental proceedings and thus, the dismissal order was not sustainable. The petitioner also relied upon the judgments in Sulekh Chand and Salek Chand v. Commissioner of Police and others 1994 Supp (3) SCC 674 and the judgment in Hari Shankar Mishra v. State of U.P. and others in Special Appeal No.180 of 2007 decided on 27.02.2007.
In Sulekh Chand's case, the Supreme Court held in a matter relating to promotion that where the criminal prosecution, suspension and departmental inquiry are on the same charges and the departmental enquiry was dropped after acquittal on merits, the need of the departmental inquiry stood obviated. The same view was taken by the Division Bench of this Court. In Hari Shankar Misra, the Court held that the suspension can be resorted to, only if an enquiry is under contemplation.
The petitioner submits that no departmental inquiry was conducted. The State, on the other hand, asserts that in spite of notice of the proceedings the petitioner did not appear in the departmental, inquiry and that he has not been acquitted honourably.
Be that as it may, now after the petitioner has been acquitted, it is always been open for the petitioner to place the order of acquittal before the departmental authorities, to take a final decision in the departmental enquiry. The judgments on which the petitioners has relied upon, are based -3- on honourable acquittal, in which the charges were found proved.
In the present case, the Criminal Court has observed that the prosecution would not prove the charges beyond doubt. The judgments produced by the counsel for the petitioner are therefore not applicable to the facts and circumstances of the case. The effect of the order of acquittal has to be seen and examined by the disciplinary authority before taking any decision in the matter.
We, consequently, dismiss the writ petition filed against the suspension order, with liberty to the petitioner to place the judgment of acquittal before the disciplinary authority, to take an expeditious reasoned decision in accordance with law.
Order Date :- 27.1.2010 VNP/-