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Suraj Singh v. State Of U.P. And Others - WRIT - A No. 17514 of 2004 [2006] RD-AH 21252 (15 December 2006)


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Court no. 31

Civil Misc. Writ Petition no. 17514 of 2004

Suraj Singh


The State of U.P. and others

Hon'ble Bharati Sapru, J.

Heard Sri Gulrez Khan learned counsel for the petitioner and Sri Shree Prakash Singh learned standing counsel for the respondents.

This writ petition has been filed seeking a writ of certiorari quashing the order dated 30.10.2000 passed by the respondent no. 3 by which he has rejected the representation of the petitioner to be reinstated in the police force and the consequential order which the petitioner seeks quashing of the order of dismissal dated 28.5.1990 passed by the respondent no. 3. This is the original order by which the impugned order of dismissal was passed against the petitioner removing him from the service of the State. The next prayer, which the petitioner made, is for a writ of mandamus commanding the respondents to reinstate him in service with full back wages and all other consequential benefits.

The facts of the case are that the petitioner was working as a constable in the Provincial Armed Constabulary and was posted at Gurgaon and an F.I.R. was lodged under sections 363, 366 and 376 I.P.C. in case crime no. 740 of 1989, which was registered against the petitioner on 18.10.1989.

The investigation was conducted against the petitioner and a charge sheet was issued against him. The trail had proceeded before the Sessions Court in S.T. no. 10 of 1990. The trial Court passed an order on 30.3.1990 and the petitioner was held guilty of having committed offences under sections 366, 376 I.P.C. and was sentenced 8 years R.I. together with a fine of Rs.2000/- each in respect of both the offences.

As soon as the order of conviction was passed by the trial Court, the petitioner was dismissed from service on 28.5.1990 by the Commandant 28 Battalion P.A.C. Etawah. The order of dismissal dated 28.5.1990 is appended as Annexure 1 to the writ petition and it records in para 3 that pursuant to the provisions of Rule 55 and 55-A of the U.P. Civil Services (Classification, control and Appeal) Rules and Regulation 493 of U.P. Police Regulations read with Article 311 (2 (a) of the Constitution and in view of the Government Order dated 12.10.1979, it is reasonably appropriate to dismiss the services of the petitioner.

The extract of relevant provision of 493 (c) of the U.P. Police Regulations is quoted below:

"493.(c). If the accused has been judicially acquitted or discharged, and the period for filing an appeal has elapsed and/or no appeal has been filed, the Superintendent of Police must at once reinstate him if he has been suspended; but should the findings of the court not be inconsistent with the view that the accused has been guilty of negligence in, or unfitness for, the discharge, of his duty within the meaning of section 7 of the Police Act, the Superintendent of Police may refer the matter to the Deputy Inspector General and ask for permission to try the accused departmentally for such negligence or unfitness."

Admittedly, thereafter no disciplinary proceedings took place against the petitioner. This is evident from the counter affidavit, which has been filed and is on record.

The petitioner filed an appeal against the order of conviction passed by the trial Court being criminal appeal no. 124(SB) of 1990 which the Punjab & Haryana High Court allowed acquitting the petitioner vide its judgment dated 24.2.1994.

After the passing of the judgment dated 24.2.1994 by which the petitioner was acquitted, the petitioner applied to the authority concerned for being reinstated in service with all consequential benefits. It has also been stated in the writ petition that against the judgment of Punjab & Haryana High Court dated 24.2.1994, Government had preferred a criminal appeal being Criminal Appeal no. 2060 of 1996 and by its order dated 23.9.2003, the Hon'ble Apex Court dismissed the said Criminal Appeal. As such the judgment dated 24.2.1994 of Punjab & Haryaya High Court acquitting the petitioner has been confirmed.

During the pendency of Criminal Appeal before the Hon'ble Apex Court arises out of judgment of the Punjab & Haryana High Court acquitting the petitioner, the services of the petitioner had been removed. Aggrieved, he had made a representation on 7.12.1995 for his reinstatement, which was rejected by the impugned order dated 30.10.2000, which is also impugned in the present writ petition.

The impugned order of rejection of the representation dated 30.10.2000 has been passed adopting reasoning that because the petitioner was acquitted on the basis of "benefit of doubt" and because it was not a clear order of acquittal, he is not entitled to be reinstated in service.

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'.

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.

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.

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.

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.

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.

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.

I therefore command the respondents to reinstate the petitioner  with all consequential benefits from the date of acquittal which is dated 24.2.1994. The impugned order dated 30.10.2000 as well as the order of dismissal dated 28.5.1990 is hereby set aside.

The writ petition is allowed as above. There will be no costs.

Dated 15.12.2006



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