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Kailash Chandra-II v. State Of U.P.& Others - WRIT - A No. 9165 of 2000  RD-AH 637 (4 March 2005)
Reserved on 9.2.2005
Civil Misc. Writ Petition No. 9165 of 2000
Kailash Chandra II Petitioner
State of U.P. and others Respondents
Hon'ble Sabhajeet Yadav, J
The facts of the case in brief are that while working as Collection Amin in the revenue department of the Government of Uttar Pradesh, a FIR was registered against the petitioner along with five other persons u/s 147,148, 149 and 302 IPC, at Police Station Jani, District Meerut. After trial of the aforesaid case all the six persons including the petitioner were convicted by court of Ist Additional Sessions Judge, Meerut vide judgment and order dated 30.6.1984. According to the petitioner, on account of his conviction u/s 148,149 and 302 I.P.C., in the aforesaid criminal case his services were terminated vide order dated 10.12.1987 passed by the District Magistrate/Collector, Meerut. Against the order of conviction and sentence dated 30.6.1984, the petitioner and other convicted persons have preferred an appeal before this Court, which was numbered as Criminal Appeal No. 1772 of 1984. On 4.4.1996 the aforesaid appeal was allowed by Division Bench of this Court, whereby the order of conviction and sentence has been set aside. In para 8 of the writ petition it is stated that the "appellate court has held that considering all these circumstances, it must be held that the doubt having arisen on the question of the acceptability or reliability of the prosecution story is of such nature which is not only a reasonable one but which also reinforces the theory that Manohar and Kunita were not there at the time of murder of Subhash". It is further stated that the petitioner has submitted a certified copy of order passed by this Court in the aforesaid criminal appeal, to the Collector, Meerut along with an application made to him on 22.4.1996. It is stated in the aforesaid application that in view of G.O. dated 12.10.1979, a copy of which is on record as Annexure-3 to the writ petition, the petitioner is entitled to be reinstated in service on account of his acquittal in the aforesaid criminal case. The petitioner has also filed the order of reinstatement of Sri Virendra Giri and Sri Brijendra Giri, who were co-accused with him in the aforesaid criminal case and acquitted in the same judgment and order passed by this court in appeal. The orders of reinstatement passed in respect of the aforesaid persons by the officers of different department are on record as annexure 4 and 5 of the writ petition. The respondent did not pass any order in respect of petitioner for a quite long time. Feeling aggrieved against the in-action of respondent the petitioner has earlier filed a writ petition no. 30966 of 1998 which was decided by this court on 23.9.1998,and in compliance of the aforesaid order, the Collector; Meerut has passed an order on 18.2.1999 whereby the claim of the petitioner for reinstatement in service has been rejected. Feeling aggrieved against the aforesaid order dated 18.2.1999 the petitioner had preferred an appeal before the Commissioner Meerut Division Meerut, which was dismissed by him on 2.12.1999. Feeling aggrieved against the aforesaid orders passed by the Collector/District Magistrate, Meerut and Commissioner, Meerut the petitioner has filed above noted writ petition seeking writ of certiorari for quashing the order dated 18.2.1999 and 2.12.1999 contained in annexure 8 and 11 of the writ petition and further a direction in nature of mandamus is sought for commanding the respondents to treat the petitioner as Collection Amin since 1986 up to 30.7.1995 and entire benefit of service may be given to him and thereafter the respondents may be directed to pay his pension admissible to the post in question. A further mandamus is sought for commanding the respondents to pay the arrears of salary and other consequential benefits since 11.8.1983.
2. On behalf of the respondents a detailed counter affidavit has been filed. In para 4 of the counter affidavit it has been stated that the petitioner was convicted u/s 302/149 IPC on 30.6.1984 by the order of Ist. Additional District and Sessions Judge, Meerut and he was sentenced for imprisonment of life and u/s 148 IPC he was sentenced for a period to 18 months. On the basis of aforesaid conviction the petitioner was suspended by order dated 8/9.9.1986. Thereafter on 30.10.1986 he was served a charge sheet and was asked to submit his reply within 15 days, by Enquiry Officer appointed for holding inquiry against him. Who after holding inquiry submitted report to the District Magistrate on 24.10.1987 and after going through the record i.e. finding recorded by Enquiry Officer and reply of the petitioner, the District Magistrate/Collector Meerut has passed a detailed order on 10.12.1987 whereby the petitioner was dismissed from service. The order of dismissal passed by the Collector Meerut dated 10.12.1987 is already on record as annexure 1 of the writ petition but the petitioner did not challenge the aforesaid order of dismissal either at any departmental forum or any judicial forum and did not seek any relief of certiorari for quashing the same either in earlier writ petition or in this writ petition. As such a preliminary objection has been raised by the respondents that the aforesaid order has become final against the petitioner. In para 11 of the counter affidavit the respondents have taken a clear-cut stand that the petitioner's service have been terminated by way of dismissal after holding full- fledged disciplinary inquiry against him. In para 16 and 17 of the counter affidavit it has been stated that the Government Order dated 12.10.1979 is not applicable in the case of the petitioner. In para 18 of the counter affidavit, it has been stated that petitioner cannot claim parity with regard to Virendra Giri and Brijendra Giri who were co-accused, but were employees of other departments. It is not known to the deponent of that counter affidavit as to whether any departmental / disciplinary inquiry had been held against the aforesaid persons or not.
3. I have heard Sri Hemendra Kumar Advocate learned counsel for the petitioner and learned Standing Counsel for the respondents and also perused the record.
4. On the basis of rival contentions and submissions of the parties and pleadings of the case following questions emerge for consideration.
1. As to whether in facts and circumstances of the case, the petitioner is entitled to be reinstated in service on account of his acquittal in a criminal case with full back wages and other consequential benefit of service as referred above?
2. As to whether the petitioner is entitled for the same benefit of reinstatement and other consequential benefits of service which have been given to the other co-accused namely; Sri Virendra Giri and Brijendra Giri?
5. In order to answer the first question it is necessary to point out that the provision of Constitution and other statutory Rules applicable to the petitioner who was government employee, are silent on the point. The G.O. dated 12.10.1979 also does not cover and comprehend the whole situation, therefore, the judicial pronouncements on the question in issue are only the guiding factor and source of law to find out complete answer to the question in controversy involved in the case. But before examining the judicial pronouncements on the issue, it is necessary to have a glance over the constitutional and statutory provisions having material bearing on the issue. In this regard it is necessary to refer the provisions of Article 311 of the Constitution of India.
Article 311 :- (1) No person who is a member of a civil service of the Union or an all-India service or a civil service of a State or holds civil post under the Union or a State shall be dismissed or removed by an authority subordinate to that by which he was appointed.
(2) No such person as aforesaid shall be dismissed or removed or reduced in rank except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges.
"[Provided that ........................
Provided further that this clause shall not apply-]"
(a) where a person is dismissed or removed or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge"
6. From bare reading of provisions of clause (2) of Article 311 of Constitution of India it is clear that person referred in clause (1) shall not be dismissed or removed or reduced in rank except after an enquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges. The second proviso carves out exception to the aforesaid General Rule contained in Article 311 (2) of the Constitution of India. Clause (a) of the second proviso clearly postulates that where a person is dismissed or removed or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge, it would not be necessary to afford him reasonable opportunity of being heard in respect of those charges. Thus it is clear that if a government servant is convicted on a criminal charge no full-fledged inquiry is required under Article 311 (2) of the Constitution of India and government employee can be dismissed, removed or reduced in rank on the basis of his conduct led to his conviction. The aforesaid view has been settled by Constitution Bench in Historical case of Union of India and Another versus Tulsi Ram Patel AIR 1985 SC 1416 in the land mark judgment of Hon'ble Supreme Court.
7. Similar provision has also been made in Rule 55 (1) of Civil Services (Classification Control & Appeal) Rules 1930, which was also applicable in case of the petitioner at the relevant time, but later on it was superceded by U.P.Government Servant (Discipline and Appeal )Rules, 1999. For ready reference the relevant extract of the provision of the aforesaid Rule, 1930 is reproduced as under :-
" Without prejudice to the provisions of the Public Servant Inquiries Act, 1850, an order (other than an order based on facts which had led to his conviction in a criminal court or by a court-martial) of dismissal, removal or reduction in rank (which includes reduction to a lower post or time scale, or to a lower stage in a time scale but excludes the reversion to a lower post of a person who is officiating in a higher post shall be passed on a person who is member of a Civil Service, or holds a civil post under the State unless he has been informed in writing of the grounds on which it is proposed to take action and has been afforded an adequate opportunity of defending himself.
8. From a close scrutiny of the aforesaid provisions of Constitution of India in as much as the aforesaid rule, it is clear that the rule is completely silent and does not comprehend the situation under which, a government servant who is charged with criminal charge, if acquitted there from what would be further course of action in respect of such Government/public servant or employee by the department concerned? The government servant who has been dismissed on account of his conviction in a criminal charge and later on in appeal the order of conviction is set aside and he is acquitted from the criminal charges as to whether such government servant would be reinstated in service with full back wages and other consequential benefits of service or not? In this connection it appears that government of U.P. has issued G.O. dated 12.10.1979 contained in annexure 3 to the writ petition. Para 2 of the aforesaid G.O. provides that if a government employee has been dismissed, removed or reduced in rank only on account of his conduct led to his conviction in criminal charges without affording him a reasonable opportunity of hearing as contemplated by Article 311 (2) of the Constitution of India and later on in appeal if the aforesaid conviction the order is set aside by the appellate court and he is acquitted from the criminal charge in that eventuality government servant is entitled to be reinstated in service with full back wages and other consequential benefits of service.
9. At this juncture it is also necessary to have a glance on some case laws, though they are on a slightly different issue whether a departmental proceedings and criminal proceedings against a govt. servant launched on the same set of facts can be continued simultaneously, but throws some light to find out correct answer of the question in issue involved in the case. The aforesaid question has been dealt with by the apex court in detail while noticing the earlier decisions rendered from time to time in case of Capt. M. Paul Anthony Versus Bharat Gold Mines Ltd. and another AIR 1999 S.C. 1416. The relevant paragraphs of the aforesaid Judgment are quoted as under:-
14. "The first decision of this court on the question was rendered in Delhi Cloth and General Mills Ltd. V. Kushal Bhan, (1960) 3 SCR 227: AIR 1960 SC 806:b (1960) I Lab LJ 520, in which it was observed as under (para 3 of AIR.)
It is true that very often employers stay enquiries pending the decision of the criminal trial courts and that is fair; but we cannot say that principles of natural justice require that an employer must wait for the decision at least of the criminal trial Court before taking action against an employee. In Bimal Kanta Mukherjdee V. M/s. Newsman's Printing Works 1956 Lab Ac 188, this was the view taken by the Labour Appellate Triibunal. We may, however, add that if the case is of a grave nature or involves questions of fact or law, which are not simple, it would be advisable for the employer to await the decision of the trial Court, so that the defence of the employee in the criminal case may not be prejudiced."
15. This was followed by Tata Oil Mills Co. Ltd. V. Workmen, (1964) 7 SCR 555:AIR 1965 SC 155, in which it was, inter alia, laid down as under (para 9 of AIR):
" There is yet another point which remains to be considered. The Industrial Tribunal appears to have taken the view that since criminal proceedings had been started against Reghavan, the domestic enquiry should have been stayed pending the final disposal of the said criminal proceedings. As this Court has held in the Delhi Cloth and General Mills Ltd. V. Kushal Bhan (AIR 1960 SC 806), it is desirable that if the incident giving rise to a charge framed against a workman in a domestic enquiry is being tried in a criminal Court, the employer should stay the domestic enquiry pending the final disposal of the criminal case."
16. The question cropped up again with a new angle in Jang Bahadur Singh V. Baij Nath Tiwari, (1969) I SCR 134: AIR1969 SC 30, as it was contended that initiation of disciplinary proceedings during the pendency of a criminal case on the same facts amounted to contempt of Court. This plea was rejected and the Court observed as under (para 3 of AIR):
"The issue in the disciplinary proceedings is whether the employee is guilty of the charges on which it is proposed to take action against him. The same issue may arise for decision in a civil or criminal proceeding pending in a Court. But the pendency of the Court proceeding does not bar the taking of disciplinary action. The power of taking such action is vested in the disciplinary authority. The civil or criminal Court has no such power. The initiation and continuation of disciplinary proceedings in good faith is not calculated to obstruct or interfere with the course of justice in the pending Court proceeding. The employee is free to move the Court for an order restraining the continuance of the disciplinary proceedings. If he obtains a stay order, a willful violation of the order would of course amount to contempt of Court. In the absence of a stay order the disciplinary authority is free to exercise its lawful powers."
17. "These decisions indicate that though it would not be wrong in conducting two parallel proceedings. One by way of disciplinary action and the other in the criminal Court, still it would be desirable to stay the domestic inquiry if the incident giving rise to a charge framed against the employees in a domestic inquiry is being tried in a criminal court. The case law was reviewed by this Court in Kusheshwar Dubey V. M/s. Bharat Coking Coal Ltd. (1988) 4 SCC 319:1988 Supp (2)SCR 821: AIR 1988 SC 2118 and it was laid down as under (para 6 of AIR)"
"The view expressed in the three cases of this Court seem to support the position that while there could be no legal bar for simultaneous proceedings being taken, yet, there may be cases where it would be appropriate to defer disciplinary proceedings awaiting disposal of the criminal case. In the latter class of cases, it would be open to the delinquent employee to seek such an order of stay or injunction from the Court. Whether in the facts and circumstances of particular case there should or should not be such simultaneity of the proceedings would then receive judicial consideration and the Court will decide in the given circumstances of particular case as to whether the disciplinary proceedings should be interdicted, pending criminal trial. As we have already stated that it is neither possible nor advisable to evolve a hard and fast, straitjacket formula valid for all cases and of general application without regard to the particularities of the individual situation. For the disposal of the present case, we do not think it necessary to say anything more, particularly when we do not intend to lay down and general guideline."
The court further observed as under (para 7 of AIR):
" In the instant case, the criminal action and the disciplinary proceedings are grounded upon the same set of facts. We are of the view that the disciplinary proceedings should have been stayed and the High Court was not right in interfering with the trial Court's order of injunction which had been affirmed in appeal."
18. Then came the decision in Nelson Motis V. Union of India (1992)4 SCC 711:1992 Supp (1)SCR 325AIR1992 SC 1981, which laid down that the disciplinary proceedings can be legally continued even where the employee is acquitted in a criminal case as the nature and proof required in a criminal case are different from those in the departmental proceedings. Besides, the Court found that the acts, which led to the initiation of departmental proceedings, were not exactly the same, which were the subject matter of the criminal case. The question was not considered in detail. The Court observed (para 5 of AIR):
" So far the first point is concerned, namely whether the disciplinary proceedings could have been continued in the face of the acquittal of the appellant in the criminal case, the plea has no substance whatsoever and does not merit a detailed consideration. The nature and scope of a criminal case are very different from those of a departmental disciplinary proceeding and an order of acquittal, therefore, cannot conclude the departmental proceedings. Besides, the Tribunal has pointed out that the acts which led to the initiation of the departmental disciplinary proceeding were not exactly the same which were the subject matter of the criminal case."
19. The entire case law was reviewed once again by this Court in State of Rajasthan V. B.K. Meena, (1996) 6 SCC 417 AIR 1997 SC 13: (1997 )1 Lab. LI 746, where in it was laid down as under (para 14 of AIR):
"It would be evident from the above decisions that each of them starts with the indisputable proposition that there is no legal bar for both proceedings to go on simultaneously and then say that in certain situation, it may not be desirable, advisable or appropriate to proceed with the disciplinary enquiry when a criminal case is pending on identical charge. The staying of disciplinary proceedings, it is emphasized, is a mater to be determined having regard to the facts and circumstances of a given case and that no hard and fast rules can be enunciated in that behalf. The only ground suggested in the above decisions as constituting a valid ground for staying the disciplinary proceedings is that the defence of the employee in the criminal case may not be prejudiced. This ground has, however, been hedged in by proving further that this may be done in cases of grave nature involving questions of fact and law. In our respectful opinion, it means that not only the charges must be grave but that the case must involve complicated questions of law and fact. Moreover, ''advisability' , ''desirability' or ''propriety', as the case may be, has to be determined in each case taking in to consideration all the facts and the circumstances of the case. The ground indicated in D.C.M. AIR 1960 SC 806 and Tata Oil Mills, AIR 1965 SC 155 is also not an invariable rule. 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 considerations 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 are involved. They get bogged down on one or the other ground. They hardly ever reach a prompt conclusion. That is the reality in spite of repeated advice and admonitions from this Court and the High Courts. If a criminal case is unduly delayed that may itself be a good ground for going ahead with the disciplinary enquiry even where the disciplinary proceedings are held over at an earlier stage. The interests of administration and good government demand that these proceedings are concluded expeditiously. It must be remembered that interests of administration demand that undesirable elements are thrown out and any charge of misdemeanour is inquired in to promptly. The disciplinary proceedings are meant not really to punish the gui8lty but to keep the administrative machinery unsullied by getting rid of bad elements. The interest of the delinquent officer also lies in a prompt conclusion of the disciplinary proceedings. If he is not guilty of the charges, his honour should be vindicated at the earliest possible moment and if he is guilty, he should be dealt with promptly according to law. It is not also in the interest of administration that persons accused of serious misdemeanour should be continued in office indefinitely, i.e. for long periods awaiting the result of criminal proceedings. It is not in the interest of administration. It only serves the interest of the guilty and dishonest. While it is not possible to enumerate the various factors, for and against the stay of disciplinary proceeding, we found it necessary to emphasise some of the important considerations in view of the fact that very often the disciplinary proceedings are being stayed for long periods pending criminal proceedings. Stay of disciplinary proceedings cannot be, and should not be, a matter of course. All the relevant factors, for and against should be weighed and a decision taken keeping in view of the various principles laid down in the decisions referred to above."
20. This decision has gone two steps further to the earlier decisions by providing:
1. The ''advisability' ''desirability' or ''propriety' of staying the departmental proceedings go in to the scales while judging the advisability or desirability of staying the disciplinary proceedings merely as one of the factors which cannot be considered in isolation of other circumstances of the case. But the charges in the criminal case must, in any case, be of a grave and serious nature involving complicated questions of fact and law.
2. One of the contending considerations would be that the disciplinary enquiry cannot -and should not be--delayed unduly. If the criminal case is unduly delayed, that may itself be a good ground for going ahead with the disciplinary enquiry even though the disciplinary proceedings were held over at an earlier stage. It would not be in the interests of administration that persons accused of serious misdemeanour should be continued in office indefinitely awaiting the result of criminal proceedings."
"21. In another case, namely, Depot Manager, Andhra Pradesh State Road Transport Corpn. V. Mohd. Yousuf Mivan, (1997) 2 SCC 699: AIR 1997 SC 2232, again it was held that there is no bar to proceed simultaneously with the departmental inquiry and trial of a criminal case unless the charge in the criminal case is of a grave nature involving complicated questions of fact and law."
22. The conclusions which are deducible from various decisions of this Court referred to above are :
(i) Departmental 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 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 charge sheet.
(iv) The factors mentioned at (ii) and (iii) above cannot be considered in isolation to stay the departmental proceedings but the 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 empl0oyee 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."
10. From close scrutiny of the aforesaid decisions, it is clear that in cases where departmental and criminal proceedings against Govt. servant launched on same set of facts, both can continue simultaneously in the situation warranted by facts and circumstances of each individual case and no hard and fast rule in straight jacket formula can be drawn in this regard. It is possible that departmental proceedings may be concluded earlier to the criminal proceedings against a government/ public servant. Such departmental disciplinary proceeding can logically end in both the ways i.e. in exoneration from the charges and in punishment of delinquent Government/public servant. The former situation cannot be expected of, as it would be subversive to discipline in public service and travesty of Service Law Jurisprudence and mockery of legal system of the country, but in later situation if in the disciplinary enquiry Government servant is punished earlier to the conclusion of criminal trial , which too can be ended in both ways, either in conviction or in acquittal. If it is ended in conviction of accused Government servant, the relevant service rules and provisions of Article 311(2) Proviso (II)(a) of the Constitution are complete answer to the question and appropriate action against the Govt. servant is to be taken accordingly. In my considered view , the departmental authorities are bound to take appropriate action against the Government servant without holding full fledged inquiry as contemplated under Article 311(2) of the Constitution and the relevant service rules, as no discretion can be left to the departmental authorities in connection of taking of decision for imposing penalties. However, in respect of nature of penalties or punishment, the departmental authorities have sufficient discretion to award punishment as enumerated under Article 311(2) of the Constitution and the relevant service rules, having regard to the gravity of criminal charges, which have led to the conviction of such Government servant, but if criminal case is ended in acquittal , which may also be of different nature i.e. clean and honourable acquittal on merits or other sort of acquittal like on technical grounds or on the basis of benefit of doubts including appreciation or lack of sufficient evidence, what would be the future course of action in respect of such Government servant? First line of cases referred earlier herein before have not dealt with the question in issue, therefore, they cannot be of much assistance to find out the complete answer of the question in issue. In this connection I would like to refer few other cases decided by the Hon'ble Apex Court and this Court as well as other High Courts :-
11. In State of Andhra Pradesh and others versus S. Sree Rama Rao reported in AIR 1963 SC 1723 the question in controversy before the Hon'ble Apex Court was as to whether the Rule to prove offence in criminal trial beyond reasonable doubt is applicable in proving misconduct in disciplinary proceedings or not? The aforesaid question was answered by Hon. Apex Court in detail and it was held that the rule to prove offence in criminal trial beyond reasonable doubt is not applied in proving misconduct of employee in departmental disciplinary proceeding and it was also held that the findings of criminal court is not always binding upon the departmental authorities holding disciplinary inquiry against such government employee. For ready reference the relevant extract of para 7 and 8 is quoted as under: -
"(7) There is no warrant for the view expressed by the High Court that in considering whether a public officer is guilty of the misconduct charged against him, the rule followed in criminal trails that an offence is not established unless proved by evidence beyond reasonable doubt to the satisfaction of the Court, must be applied and if that rule be not applied, the High Court in a petition under Article 226 of the Constitution of competent to declare the order of the authorities holding a departmental enquiry invalid. The High Court is not constituted in a proceeding under Article 226 of the Constitution a Court of appeal over the decision of the authorities holding a departmental enquiry against a public servant; it is held by an authority competent in that behalf , and according to the procedure prescribed in that behalf , and whether the rules of natural justice are not violated. Where there is some evidence, which the authority entrusted with the duty to hold the enquiry has accepted and which evidence may reasonably support the conclusion that the delinquent officer is guilty of the charge, it is not the function of the High Court in a petition for a Writ under Article 226 to review the evidence and to arrive at an independent finding on the evidence. The High Court may undoubtedly interfere where the departmental authorities have held the proceeding against the delinquent in a manner inconsistent with the rules of natural justice or in violation of the statutory rules prescribing the mode of enquiry or where the authorities have disabled themselves from reaching a fair decision by some considerations extraneous to the evidence and the merits of the case or by allowing themselves to be influenced by irrelevant considerations or where the conclusion on the very face of it is so wholly arbitrary and capricious that no reasonable person could ever have arrived at that conclusion, or on similar grounds. But, the departmental authorities are, if the enquiry is otherwise properly held, the sole judges of facts and if there be some legal evidence on which their findings can be based , the adequacy or reliability of that evidence is not a matter which can be permitted to be canvassed before the High Court in a proceeding for a writ under Article 226 of the Constitution.
(8) The Enquiry Officer appears to have stated that the judgment of the Magistrate holding a criminal trial against a public servant could not always be regarded as binding in a departmental enquiry against that public servant. In so stating the Enquiry Officer did not commit any error.
12. In Sri R.P. Kapur versus Union of India and another reported in AIR 1964 SC 787 in para 9 of the judgment (at page 792 AIR) the Hon'ble Apex Court has held that if the trial of criminal charge results in conviction a disciplinary proceedings are bound to follow against the public servant so convicted, even in case of acquittal proceedings may follow where the acquittal is other than "honourable." For ready reference the relevant extract of para 9 is quoted as under: -
" If the trial of the criminal charge results in conviction, disciplinary proceedings are bound to follow against the public servant so convicted, even in case of acquittal proceedings may follow where the acquittal is other than honourable. The usual practice is that where a public servant is being tried on a criminal charge, the Government postpones holding a departmental enquiry and awaits the result of the criminal trial and departmental proceedings follow on the result of the criminal trial."
13. In State of Orissa versus Sailabehari Chatterji reported in AIR 1963 Orissa 73, a Division Bench of Orissa High Court has dealt with the issue in detail and the distinction between criminal proceeding and departmental enquiry has been pointed out. The question as to whether the finding of court holding criminal trial is binding on a departmental enquiry has also been answered in negative. Besides this the question like acquittal from the criminal charge on the basis of benefit of doubt where the departmental enquiry in respect of same charge is or not against the natural justice has also been dealt with. For ready reference the relevant extract of para 12 and 13 of the decision is being quoted as under: -
12....But in the departmental proceeding the position becomes entirely different. Once the Government have shown that the amount of money recovered from the possession of the delinquent servant was disproportionate to his known resources and also that the circumstances under which the money was kept indicated that he was anxious to conceal its presence, the reasonable inference would be that the money was acquired by means other than honest and the burden of proving that it was acquired by honest means would shift to the public servant concerned. In fact even if he has been prosecuted in a criminal case for an offence under Sec. 5 (2) of the Prevention of Corruption Act (Act III of 1947) the burden would have been shifted on him by S. 5 (3)of that Act to prove this fact. In a departmental proceeding the position of a Government servant could not be better than that of an accused in a Criminal case.
(13)....Doubtless, if the Criminal Court had acquitted the respondent honourably, a subsequent enquiry in respect of the same allegations may offend the rules of natural justice and may have to be quashed, as held in Qamarali v. State of M.P. AIR 1959 Madh Pra. 46.
But the learned Sessions Judge did not acquit the respondent honourably on the ground that the evidence of Gopal Sahu was not false. On the contrary he expressly stated that though there was a strong suspicion against the respondent the prosecution evidence did not completely exclude the possibility of the theory of planting. This only shows that the learned Judge applied the well-known rule of criminal jurisprudence that in a criminal case the accused was entitled to the benefit of doubt. Thereafter further departmental enquiry in respect of the same subject matter was not excluded especially as the standard of proof required in such an enquiry against a delinquent public servant is not the same as that required against an accused in a criminal case.
14. In S. Krishnamurthy versus Chief Engineer, Southern Railway P.T. Madras and another reported in AIR 1967 Madras 315, the question in controversy was whether holding of departmental inquiry on the same charges in which a government servant has been acquitted is permissible or the same is violative of Article 20 (2) or Article 311 of Constitution of India or not? In para 5 of the judgment the question has been answered in following manner:-
(5) " Under those circumstances, it appears to be very clear to us that the appellant could have been proceeded with in disciplinary jurisdiction, upon the present facts, notwithstanding the ultimate acquittal on the criminal charge."
15. In K. Rangaranjan v. The State of Madras reported in 1968 Lab. I.C. 63, after placing reliance upon two decisions of Supreme Court, the Madras High Court in para 3 of the judgment has held as under:
(3) " ....The two decisions above cited make it clear that it cannot be said that in the case of an acquittal by a criminal Court the departmental proceedings cannot be initiated on the same facts. Even in the case of acquittals the departmental proceedings may follow when the acquittal is "other than honourable."......No doubt it would be a strange predicament, if, in spite of a trial by a criminal Court on the same facts, the domestic tribunal were to come to a different conclusion on the same facts. But there cannot be a complete prohibition against the tribunal coming to a different conclusion, for it is well known that the Tribunal is not bound by several rules that are binding on appreciation of evidence, by a criminal Court. As for instance, a criminal Court would not accept the evidence of an accomplice, unless corroborated in material particulars, while the departmental enquiry may base its finding on the uncorroborated testimony of the accomplice.
16. In Khushi Ram v. Union of India reported in 1974 Lab. I.C.553, while dealing with the controversy in detail in paras 5,6 and 7 of the judgment, The Himanchal Pradesh High Court has held that removal of Patwari in the instant case was not invalid or contrary to law on the ground that on the same charge he was acquitted by criminal court. The department was not bound to drop the charges. For ready reference the observation made by the Court in para 6 of the judgment is quoted as under: -
(6) " That does not mean, however, that the findings in the criminal trial must necessarily be adopted by the departmental tribunal. Quite conceivably, the evidence on which the criminal court has proceeded may not be the same as the material before the departmental tribunal, and it is possible that while the case in the criminal court may fail for want of evidence there may be sufficient evidence forthcoming in the departmental proceeding. The proceeding in the criminal court may also fail for want of sanction or other technical ground, while no such infirmity may vitiate the departmental proceeding."
17. In Doraikannu v. the General Manager, Parrys ConfectionaryLtd. Nellikuppam and another reported in 1977 Lab. I.C. 1471, (Madras High Court) the question in controversy was whether an enquiry is bonafide in view of acquittal by a competent court. It was held that if acquittal is on merit no departmental enquiry could have taken against the employee on the same charge but if it is based on benefit of doubt the departmental enquiry was not barred. For ready reference the relevant extract of para 4 of the aforesaid decision is quoted as under :-
(4) "...if the acquittal is made as a result of giving of the benefit of doubt and it is not founded on merits, there is no bar to a departmental enquiry of the same charge. We concur with this view."
18. In Corporation of the City of Nagpur Civil Lines Nagpur and another v. Ramchandra G. Modak and others reported in AIR 1984 SC page 626, the question in controversy was whether or not the departmental enquiry pending against employee involved in a criminal case should be continued even after his acquittal in criminal case? The question was answered in para 6 of the judgment as under :-
(6) "The other question that remains is if the respondents are acquitted in the criminal case whether or not the departmental inquiry pending against the respondents would have to continue. This is a matter, which is to be decided by the department after considering the nature of the findings given by the criminal court. Normally where the accused is acquitted honourably and completely exonerated of the charges it would not be expedient to continue a departmental inquiry on the very same charges or grounds or evidence, but the fact remains, however, that merely because the accused is acquitted, the power of the authority concerned to continue the departmental inquiry is not taken away nor is its direction (discretion) in any way fettered. "
19. In P.N. Tripathi versus Central Bank of India and others reported in 1985 Lab.I.C 991 , a Division Bench of this Court after going through the decisions of the apex court in para 6 of the judgment has held as under :-
(6)...The Supreme Court has emphasized that the mere fact that a person has been acquitted honourably and completely exonerated of the charge will not divest the jurisdiction of the authority concerned to either initiate or continue a departmental enquiry on the very same charges or grounds or evidence. According to the Supreme Court the power of the officer concerned to direct a departmental enquiry remains unaltered. The discretion of such an officer or authority remains unhampered. The only thing, according to the Supreme Court, which has to be seen is whether in a given case it would be expedient and fair to continue with the departmental proceedings on charges which are identical to those which were levelled against a delinquent in a criminal case before a regular Court and that Court had given him a clean acquittal. In view of the dictum of the Supreme Court, in our opinion, the proposition laid down in the aforementioned two cases that the departmental proceedings on identical charges cannot be allowed to take place cannot be accepted in its absolute form. "
20. In Jayaram Panda V. D.V. Raiyani and others reported in AIR 1989 Orissa 109, a Full Bench of Orissa High Court after a detailed scrutiny of law on subject has held that an order of acquittal passed in criminal case does not debar a departmental inquiry on self same charges even if the delinquent "honourably" acquitted. This could be a consideration for the departmental authority to take into account and decide whether the departmental inquiry would be continued or not but the power of authority to continue of the same is not taken away nor discretion has been fettered in any manner. For ready reference the observation made by Full Bench in para 11 of the aforesaid judgment is quoted as under :-
11."The order of acquittal recorded in a criminal proceeding bars a second prosecution on the same facts in view of the principles laid down in S.403, Criminal P.C. and Art. 20 of the Constitution. The decision to hold a departmental inquiry against a delinquent Government servant, which is required. In the interest of public administration is entirely a different proceeding. The object of holding a departmental enquiry is entirely a different i.e. whether the delinquent is guilty of any misconduct or delinquency and the mere fact that the enquiring officer may reach a conclusion different from that recorded by the criminal court does not abridge his right. There is no constitutional, statutory or legal bar on the basis of which it can be held that a departmental inquiry is bad in view of the order of acquittal recorded by a criminal court. Once the cardinal difference between a criminal proceeding and a disciplinary proceeding is kept in mind, there would be no scope for any confusion on this account. The dominant purpose of a criminal proceeding is to achieve the protection of the public while that in the disciplinary proceeding is purity and efficiency of public service. Obviously, therefore, the fields of operation of the two proceedings are quite different and independent. In a disciplinary proceeding, the strict rules of evidence and the standard of proof are also not required as in a criminal trial."
21. In Krishnakant Raghunath Bibhavnekar V. State of Maharashtra and others reported in AIR 1997 S.C. 1434, the appellant of the aforesaid case while working as compositor in the Government of India Printing Press was charged for the offence under Section 409 IPC pending trial, he was kept under suspension. After his acquittal he was reinstated, but the respondents did not grant the consequential benefits to him. In the aforesaid facts and situation of the case, the question in controversy before the Hon'ble Apex Court was whether a government servant would be entitled to all the consequential benefits including the back wages. If during the period of his suspension he was acquitted from the pending criminal charge on the basis on which he was placed under suspension and what would be further course of action if alleged misconduct is a foundation of prosecution, as to whether the disciplinary authority may inquire into the matter and take appropriate action thereon or not?. In para 4 of the judgment the apex court has dealt with the issue in detail. For ready reference the relevant extract of para 4 of the judgment is reproduced as under :-
4"....It is true that when a Government servant is acquitted of offences, he would be entitled to re-instatement. But the question is: whether he would be entitled to all consequential benefits including the pensionary benefits treating the suspension period as duty period, as contended by Shri Ranjit Kumar ? The object of sanction of law behind prosecution is to put an end to crime against the society and laws thereby intends to restore social order and stability. The purpose of prosecution of a public servant is to maintain discipline in service, integrity, honesty and truthful conduct in performance of public duty or for modulation of his conduct to further the efficiency in public service. Though legal evidence may be insufficient to bring home the guilt beyond doubt or fool proof. The act of reinstatement sends ripples among the people in the office/locality and sows (sends) wrong signals for degeneration of morality, integrity and rightful conduct and efficient performance of public duty. The constitutional animation of public faith and credit given to public acts would be under mind. Every act or the conduct of a public servant should be to effectuate the public purpose and constitutional objective. Public servant renders himself accountable to the public. The very cause for suspension of the petitioner and taking punitive action against him was his conduct that led to the prosecution of him for the offences under the Indian Penal code. If the conduct alleged is the foundation for prosecution, though it may end in acquittal on appreciation or lack of sufficient evidence, the question emerges; whether the Government servant prosecuted for commission of defalcation of public funds and fabrication of the records, though culminated into acquittal, is entitled to be reinstated with consequential benefits? In our considered view this grant of consequential benefits with all back wages etc. cannot be as a matter of course. We think that it would be deleterious to the maintenance of the discipline if a person suspended on valid consideration is given full back wages as a matter of course, on his acquittal. Two courses are open to the disciplinary authority, viz, it may enquire into misconduct unless, the self-same conduct was subject of charge and on trial the acquittal was recorded on a positive finding that the accused did not commit the offence at all; but acquittal is not on benefit of doubt given. Appropriate action may be taken thereon. Even otherwise, the authority may, on reinstatement after following the principle of natural justice, pass appropriate order including treating suspension period as period of not on duty."
22. In this case after making above observation, Hon'ble Apex Court has dismissed the appeal of the appellant . From scrutiny of the judgment, it is clear that in this case the question of entitlement of reinstatement of appellant was not in issue, rather Government itself had reinstated the appellant in service on his acquittal from criminal case. Thus only question of consequential benefits of service and back wages during the period of suspension was in issue before the Hon'ble Apex Court, which too was decided against him , as such any observation made by the Hon'ble Apex Court in connection of reinstatement of the appellant should be understood in context of the particular facts and circumstances of the case only.
23. In Capt. M. Paul Anthony, V. Bharat Gold Mines Ltd. and another reported in AIR 1999 S.C. 1416, the question in controversy was in a slightly different context wherein both the proceedings were held simultaneously against the employee concerned and in disciplinary inquiry he was dismissed from service. Later on he was acquitted by the court from criminal charge levelled against him. The Hon'ble Apex Court found as a fact that during the period of suspension the employee concerned was not paid subsistence allowance in as much as disciplinary inquiry was also held exparte. The court dealing with criminal case has thrown out the entire prosecution story and found as false and had held that prosecution has failed to establish the guilt against the employee concerned. In view of those facts and circumstances of the case, the question for consideration before the Hon'ble Apex Court was as to whether if the departmental proceedings in a criminal case based on identical set of fact and in which employee acquitted in criminal case as to whether such acquittal can conclude the departmental proceedings? In paras 34, 35 and 36 of the judgment, the apex court has held that if the whole case of prosecution was thrown out and employee was acquitted by judicial pronouncement holding that the criminal case was wholly false. It would be unjust, unfair rather oppressive to allow the findings recorded as exparte in departmental proceedings to stand. For ready reference relevant portion of paras 34, 35 and 36 are being quoted as under :-
34. " ....The same witnesses were examined in the criminal case but the Court, on a consideration of the entire evidence , came to the conclusion that no search was conducted nor was any recovery made from the residence of the appellant. The whole case of the prosecution was thrown out and the appellant was acquitted. In this situation, therefore, where the appellant is acquitted by a judicial pronouncement with the finding that the ''raid and recovery' at the residence of the appellant were not proved, it would be unjust, unfair and rather oppressive to allow the findings recorded at the exparte departmental proceedings, to stand.
35. Since the facts and the evidence in both the proceedings, namely, the departmental proceedings and the criminal case were the same without there being any iota of difference, the distinction, which is usually drawn as between the departmental proceedings and the criminal case on the basis of approach and burden of proof, would not be applicable to the instant case."
36. ". In the peculiar circumstances of the case, specially having regard to the fact that the appellant is undergoing this agony since 1985 despite having been acquitted by the criminal court in 1987, we would not direct any fresh departmental inquiry to be instituted against him on the same facts. The appellant shall be reinstated forth-with on the post of Security Officer and shall also be paid entire arrears of salary, together with all allowances from the date of suspension till his reinstatement, within three months."
24. Except last one case of Capt. M. Paul Anthony all the cases referred herein before, are the cases in which the Government servant or delinquent employees were prosecuted in criminal offence by postponing the domestic inquiry in respect of their alleged misconduct which was also subject matter and foundation of prosecution in a criminal trial and after their acquittal in criminal trial according to law laid down by the Hon'ble Apex Court as well as other High Court referred earlier their such misconduct in departmental inquiry vis-à-vis nature of their acquittal were subject in issue for consideration. In that context the Hon'ble Apex Court as well as other Courts have held that except in a case of clean and honourable acquittal on merit in other cases of acquittal referred in earlier part of this judgment, it is open for the departmental authorities to hold departmental inquiry in respect of misconduct of delinquent employee and take appropriate and proper action in accordance with the provisions of law. Only in case of Capt. M. Paul Anthony the departmental inquiry though exparte has already been ended in the dismissal of the appellant of the aforesaid case. Later on in a criminal trial the appellant was acquitted and Hon'ble Supreme Court found that the prosecution story has been found false and thrown out by criminal court. In that situation the Hon'ble Apex Court has held that in given facts and circumstances of the case it would be unjust, unfair rather oppressive to allow the findings recorded at the exparte departmental proceedings to stand and in peculiar circumstances of the case specially having regard to the fact that the appellant is under going this agony since 1985 despite having been acquitted by criminal court in 1987, it would not be desirable to direct any fresh departmental inquiry to be instituted against the appellant on the same set of facts and appellant was directed to be reinstated forthwith on the post in question with arrears of salary together with other allowances from the date of suspension till the date of his reinstatement. The observation made by the Hon'ble Apex Court in para 36 of the decision appears to have been made in peculiar facts and circumstances of the aforesaid case and has not been intended to lay down any general proposition for universal application under Article 141 of the Constitution of India rather it should be understood in facts and circumstances of the case and should be treated to be under Article 142 of the Constitution of India, which have binding effect between the parties alone. Therefore, the observations made in para 36 of the decision should not be treated as ''ratio of the decision'. What is ratio of the decision of the aforesaid case can be found out on reading of paras 34 and 35 of the aforesaid decision.
25. In order to make it clear, I would like to refer observations of the Hon'ble Apex Court made in this regard in paras 18 and 19 of the judgment rendered in the case of Krishena Kumar v. Union of India and others, AIR 1990 Supreme Court 1782:-
18. The doctrine of precedent that is being bound by a previous decision, is limited to the decision itself and as to what is necessarily involved in it. It does not mean that this Court is bound by the various reasons given in support of it, especially when they contain "propositions wider than the case itself required." This was what Lord Selborne said in Caledonian Railway Co. v. Walker's Trustees (1882)(7) AC 259) and Lord Halsbury in Quinn v. Leathem (1901) AC 495(502), Sir Frederick Pollock has also said: "Judicial authority belongs not to the exact words used in this or that judgment , nor even to all the reasons given, but only to the principles accepted and applied as necessary grounds of the decision."
19. In other words, the enunciation of the reason or principle upon which a question before a Court has been decided is alone as a precedent. The ratio decidendi is the under-lying principle, namely, the general reasons or the general grounds upon which the decision is based on the test or abstract from the specific peculiarities of the particular case, which gives rise to the decision. The ratio decidendi has to be ascertained by an analysis of the facts of the case and the process of reasoning involving the major premise consisting of a pre-existing rule of law, either statutory or judge-made, and a minor premise consisting of the material facts of the case under immediate consideration, if it is not clear, it is not the duty of the Court to spell it out with difficulty in order to be bound by it.In the words of Halsbury, 4th Edn. Vol.26 para 573:
"The concrete decision alone is binding between the parties to it, but it is the abstract ratio decidendi, as ascertained on a consideration of the judgment in relation to the subject matter of the decision, which alone has the force of law and which when it is clear it is not part of a tribunal's duty to spell out with difficulty a ratio decidendi in order to be bound by it, and it is always dangerous to take one or two observations out of a long judgment and treat them as if they gave the ratio decidendi of the case. If more reasons than one are given by a tribunal for its judgment all are taken as forming the ratio decidendi."
26. On a conspectus of the whole issue, the conclusions, which are deducible from the provisions of Article 311(2) of the Constitution of India and the relevant service rule and various decisions of the Hon'ble Apex Court, other High Courts and this Court are as under:-
(i)Rule to prove the offence in criminal trial beyond reasonable doubt is not applicable in proving misconduct in disciplinary proceedings, as the strict rule of evidence is also not applicable in disciplinary proceedings under domestic inquiry. It is also well known that the domestic tribunal is not bound by several rules that are binding on appreciation of evidence by a criminal Court. As for instance, a criminal Court would not accept the evidence of an accomplice, unless corroborated in material particulars, while the departmental inquiry may base its finding on the uncorroborated testimony of the accomplice.
(ii)Finding of Court in a criminal trial against a public servant could not always be regarded as binding in domestic inquiry against that public servant in proving misconduct against him. It is quite possible that the evidence on which criminal court has proceeded may not be the same as the material before the departmental tribunal and it is possible that while the case in the criminal court may fail for want of evidence there may be sufficient evidence forthcoming in the departmental proceeding. The proceeding in the criminal court may also fail for want of sanction or other technical ground while no such infirmity may vitiate the departmental proceeding.
(iii)The nature and scope of a criminal trial are very different from those of departmental and disciplinary proceedings. The standard of proof in both the proceedings are also different altogether.
(iv) The nature and purposes of both the proceedings are also different altogether. The order of acquittal recorded in criminal proceedings bars a second prosecution on the same facts in view of principles laid down in Cr,P.C. and Article 20 (2) of Constitution of India. The decision to hold a departmental inquiry against the delinquent Government servant , which is required in the interest of the public administration, is entirely a different proceeding.
(v)The object of holding a departmental inquiry is entirely a different i.e. whether the delinquent is guilty of any misconduct or delinquency and the mere fact that the inquiry officer may reach a conclusion different from that recorded by the criminal court does not abridge his right. There is no constitutional, statutory or legal bar on the basis of which it can be held that a departmental inquiry is bad in view of the order of acquittal recorded by a criminal court.
(vi)The dominant purpose of a criminal proceeding is to achieve the protection of public while that in the disciplinary proceeding is purity and efficiency of public service , therefore the field of operation of the two proceedings are quite different and independent.
(vii)If the trial of criminal charge results in conviction, the disciplinary authorities are bound to follow and accept it and take appropriate action against such Government servant as envisaged under proviso (II)(a) of Article 311(2) of the Constitution and the relevant service rules, without holding full fledged inquiry against such Government servant and in such situation full fledged inquiry is not necessary, but in a case of acquittal the disciplinary proceeding may follow where the acquittal is other than clean and honourable acquittal on merit wherein the court dealing ;with criminal case has completely exonerated the accused by recording positive finding that he did not commit the alleged offence and the prosecution case found totally false and completely thrown out against him.
(viii) If the conduct alleged is the foundation for prosecution though it may end in acquittal on appreciation or lack of sufficient evidence or on account of benefit of doubt or on any other technical ground like lack of sanction for prosecution, the authority may take appropriate action after holding disciplinary inquiry in respect of misconduct against the delinquent employee.
27. Thus in view of law laid down by apex court and other High Court there can be no hesitation to hold that if the Government employee/public servant has been punished departmentally on his misconduct earlier which is a foundation of criminal prosecution and later on criminal case ended in acquittal and if the acquittal is clean and honourable based on merit wherein accused has been completely exonerated from the offence alleged against him and the prosecution case found totally false with positive finding that the accused did not commit the offence in question and acquitted not on account of benefit of doubt or appreciation of evidence including lack of sufficient evidence or lack of sanction for prosecution or on any other technical grounds he may be reinstated back in service with other consequential benefit including arrears of salary or other pensionary benefit admissible to him if retired earlier by treating him in service but in other situation where the acquittal is based on benefit of doubt or appreciation of evidence including lack of sufficient evidence or lack of sanction for prosecution or any other technical ground, disciplinary enquiry pending against such Government or public servant cannot be concluded, rather it would be appropriate that the departmental authority may continue with the disciplinary inquiry or hold fresh enquiry in respect of the mis-conduct , which was foundation of criminal case ended in acquittal against such Government servant. If disciplinary inquiry has already been concluded and major punishment, as envisaged under Article 311 of the Constitution of India or under the relevant service rules, has already been awarded to such Government servant, it would not be necessary and appropriate to re-open the same on account of his such acquittal from criminal charges.
28. Now an incidental question arises for consideration whether the Government order dated 12/10/1979 contained in annexure 3 of the writ petition upon which the petitioner has placed reliance for his reinstatement in service, with all consequential benefits including full back wages and pensionary benefits can with stand the test of scrutiny at the touch stone of law laid down by Hon'ble Apex Court, and High Courts ? In this connection it is necessary to point out that the aforesaid Government Order appears to have been issued by the State Government in purported exercise of executive powers under Article 162 of the Constitution of India. It has no statutory sanction and force of law, rather it is a mere executive instruction. Although the validity of the aforesaid Government Order has not been questioned by any of the party in the proceeding for simple reason that the petitioner himself has placed reliance upon it for taking advantage of the same and the respondent- State Government itself had issued the aforesaid Government Order, but in expediency of disposal of question in controversy involved in this case, it is necessary to examine its validity at the touch stone of law laid down by the Hon'ble Apex Court as well as High Courts. It is also because of the reason that this Court owes an obligation to uphold the constitution and laws, therefore it cannot and should not accept any statute or other statutory instrument, Government Order as correct on its face value for grant and refusal of relief asked for in the writ petition without examining its correctness or validity at the touch stone of law laid down by the Hon'ble Apex Court and the High Court when the grant or refusal of such relief on that basis have forereaching consequence. Although this Court is conscious about the ambit and reach of judicial review and exercise of jurisdiction under Article 226 of the Constitution of India which is in very slow pace with restraint and circumspection, but at the same time it cannot ignore the larger compelling public interest vis-à-vis state action, warranting its scrutiny in given facts and circumstances of the case. Therefore, I am of considered opinion that there can be no fetter in exercise of jurisdiction under Article 226 of the Constitution of India to examine the validity of the provisions of the aforesaid G.O. inspite of fact that either parties of the proceeding did not question its validity.
29. para 2 of the aforesaid G.O. provides that if a government employee has been dismissed/removed or reduced in rank only on account of his conduct led to his conviction in a criminal charge without affording him reasonable opportunity of hearing as contemplated by Article 311 (2) of the Constitution of India and later on in appeal, if the aforesaid conviction order is set aside by the appellate court and he is acquitted from criminal charge in that eventuality the government servant is entitled to be reinstated in service with full back wages and other consequential benefits of service and disciplinary action taken against him shall be treated to be illegal and invalid. But no further details have been given in respect of nature of acquittal of government servant such as clean and honourable acquittal on merits and acquittal on technical grounds like absence of sanction for prosecution or on account of insufficiency of evidence or appreciation of evidence including the extension of benefits of doubt by the Court in criminal case or on such other similar grounds. It appears that the aforesaid G.O. is intended to be applied in whole sale manner indiscriminately without having gone through the merit of the individual case with regard to the nature of acquittal as discussed in earlier part of the judgment. Therefore, the same can not with- stand on the test of scrutiny of reasons and at touch stone of law laid down by Hon'ble Apex Court and High Courts as indicated earlier accordingly the same can not sustain as it stands. That apart it is also necessary to point out that the aforesaid G.O. has been issued without thoughtful consideration of various situations and pros and cons of the matter. By this G.O. two different groups of acquitted Government employees who can be reasonably classified into two separate classes, have been treated alike without having gone through merit of their respective individual case. Thus all such persons, who may be unequal are treated equally, as such it violates the equality clause and Article 14 of the Constitution of India. Therefore, I have no hesitation to hold that the G.O. in question as it stands suffers from vice of unreasonableness and non application of mind and is liable to be struck down by this court to that extent.
30. Viewing the matter from another angle also as observed by the Hon'ble Apex Court in Krishnakant Raghunath Bibhavnekar's case (Supra) that in criminal trial though the legal evidence may be insufficient to bring home the guilt beyond reasonable doubt, but the act of reinstatement sends ripples among the people in the office /locality and sows (sends) wrong signals for degeneration of morality, integrity and rightful conduct and efficient performance of public duty. The constitutional animation of public faith and credit given to public acts, would be undermined and shaken. Every act or the conduct of a public servant should be to effectuate the public purpose and constitutional objective. Public servant renders himself accountable to the public . If the conduct alleged is the foundation for prosecution, though it may end in acquittal on appreciation or lack of sufficient evidence, the reinstatement of Government/public servant in discriminately in whole sale manner can never be in the interest of administration nor for maintenance of discipline in the Government or public services. Accordingly, it can never be in the public interest, which may serve the ''public good' or public purpose. To my mind at the most it would be a premium to such Government or public servant, whose such conduct was subjected to prosecution. Thus the aforesaid provisions of G.O. can be tested at the touch stone of the "public interest" or "public good" or public policy also. Initially the expression "public policy" was known and recognized only in the field of contract, but later on the concept of "public policy" has been imported in the field of service law also.
31. In this connection a reference can be made to a decision of Hon'ble Apex Court rendered in Central Inland Water Transport Corporation Ltd. and another Vs. Brojo Nath Ganguly and another, reported in AIR 1986 Supreme Court 1571, wherein the aforesaid expressions have been used almost as interchangeable expression to each other. At page 1612 in paragraph 93 of the report the Hon'ble Apex Court has held as under:-
"93. The contract Act does not define the expression public policy or opposed to public policy. From the very nature of things, the expressions "public policy" , "opposed to Public policy" or "contrary to public policy" are incapable of precise definition. Public policy, however, is not the policy of a particular government. It connotes some matter which concerns the public good and the public interest. The concept of what is for the public good or in the public interest or what would be injurious or harmful to the public good or the public interest has varied from time to time. As new concepts take the place of old, transactions which were once considered against public policy are now being upheld by the courts and similarly where there has been a well recognized head of public policy, the courts have not shirked from extending it to new transactions and changed circumstances and have at times not even flinched from inventing a new head of public policy. There are two schools of thought - "the narrow view" school and "the broad view" school. According to the former, courts cannot create new heads of public policy whereas the latter countenances judicial law making in this area. The adherents of "the narrow view" school would not invalidate the contract on the ground of public policy unless that particular ground had been well established by authorities. Hardly ever has the voice of the timorous spoken more clearly and loudly than in these words of Lord Davey in Janson v. Driefontein Consolidated Mines, Limited (1902) AC 484, 500, "public policy is always an unsafe and treacherous ground for legal decision." That was in the year 1902, Seventy eight years earlier, Burrough, J., in Richardson v. Malish (1824) 2 Bing 229, 252 SC 130 ER 294, 303 and (1824-34) All ER Reprint 258,266. described public policy as "a very unruly horse and when once you get astride it you never know where it will carry you". The Master of the Rolls, Lord Denning, however, was not a man to shy away from unmanageable horses and ;in words which conjure up before our eyes the picture of the young Alexander and Great Taming Bucephalus, he said in Enderby Town Football Club Ltd. v. Football Association Ltd.(1971) Ch 591,606, "with a good man in the saddle, the unruly horse can be kept in control. It can jump over obstacles." Had the timorous always held the field, not only the doctrine of public policy but even the Common Law or the principles of Equity would never have evolved. Sir William Holdsworth in his "History of English Law," Volume III, page 55, has said:
"In fact, a body of law like the common law, which has grown up gradually with the growth of the nation, necessarily acquires some fixed principles, and if it is to maintain these principles it must be able, on the ground of public policy or some other like ground, to suppress practices which, under ever new disguises, seek to weaken or negative them."
It is thus clear that the principles governing public policy must be and are capable, on proper occasion, of expansion or modification, practices which were considered perfectly normal at one time have today become obnoxious and oppressive to public policy which covers a case, then the court ;must in consonance with public conscience and in keeping with public good and public interest declare such practice to be opposed to public policy.
32. Therefore, in view of the aforesaid decision rendered by the Hon'ble Apex Court, I am of considered opinion that the aforesaid provisions contained in the aforesaid Government Order runs contrary to the public interest and public good accordingly it is held to be contrary to the public policy. The views which I have taken in this regard should not be understood that while doing so I have extended the horizon and/or dimension of the expression public policy , rather as held by the Hon'ble Apex Court that the matters which have concern with public good or public interest automatically falls within the broader spectrum of public policy. Anything which is against the public interest would be contrary to the public policy. Thus the aforesaid provisions as it stands on this count also cannot be sustainable in the eye of law and liable to be struck down by this Court. Since stricking down of the aforesaid G.O. would create undue hardship and difficulty in the public administration and administrative affairs of the State Government. Therefore, instead of quashing the aforesaid provisions of G.O., it would be appropriate to read down the observations made by the court in respect of its validity and applicability in the Government Order itself. However, it shall be open to the appropriate authority/ Government of Uttar Pradesh to issue any fresh Government Order while modifying or clarifying the earlier Government order in question in the manner indicated in the body of the judgment.
33. Thus in view of the discussions made herein before, the respondent Government of Uttar Pradesh is hereby restrained and directed not to apply G.O.No.6/10/79-Karmic-1 Lucknow dated 12.10.1979, indiscriminately in whole-sale manner, irrespective of merit of individual case of acquittal of Government servant in criminal prosecution forthwith. The aforesaid G.O.is to be applied only in cases of clean and honourable acquittal based on merits, where competent court trying the offences (including higher court hearing the appeal or revision) has completely exonerated the accused from the offence by recording positive finding to the effect that the accused did not commit the offence and whole prosecution story against him thrown out and found false. The acquittal should not be based on extension of benefits of reasonable doubts including appreciation of evidence, lack of sufficient evidence or want of sanction for prosecution or other technical grounds.
34. Now it is necessary to deal with the submissions of the counsel for the petitioner. In support of his submissions on the question in issue the learned counsel for the petitioner has cited a decision rendered by Rajasthan High Court in case of Narayan Lal versus State of Rajasthan 1992 (3) Service Law Reporter page 534 where in it appears that the petitioner who was constable was convicted in a criminal case u/s 302 and 149 of IPC there upon his services were terminated later on in an appeal the order of conviction was set aside and he was acquitted from the criminal case. On acquittal from the criminal case he filed a writ petition for reinstatement in service. The learned Single Judge of Jaipur Bench of Rajasthan High Court has directed that the petitioner of the aforesaid case be reinstated in service with all consequential benefits and full back wages. From the perusal of the judgment there is no indication at all as to whether the acquittal of the petitioner from criminal was based on merit and honourable acquittal was made or it was based on benefit of doubt on account of appreciation or insufficiency of evidence or on other technical lacuna in prosecution case. No reason has been given in the judgment in question therefore the same can be of no assistance to the case of the petitioner.
35. Another case upon which the learned counsel for the petitioner has placed reliance is Vinod Kumar Versus Executive Engineer, Electricity Distribution and others 1992 (8) SLR 772. In this case the petitioner was working as lineman in the Electricity Distribution Dub-Division, District Tehri Garhwal and was placed under suspension on account of criminal case later on he was acquitted by the court in criminal case. Thereafter he moved a representation for reinstatement. It appears that against the order of acquittal appeal was filed in High Court and on account of pendency of appeal he was kept under suspension. The learned single Judge of this Court has allowed the writ petition filed by petitioner holding that since the petitioner has been acquitted from criminal charges, therefore, he is entitled to be reinstated in service, he can not be kept under suspension simply on account of filing of appeal by the State Government against him against the order of acquittal in the High Court. It was also observed that on account of acquittal of petitioner it was open to the respondent to hold disciplinary inquiry against the petitioner but they have not chosen to do so. In support of his decision learned single judge has relied upon a decision of Hon'ble Supreme Court in Babu Lal Versus State of Hariyana and others 1991 (1) SLR (SC) 756 which laid down the proposition that after acquittal the suspended employee is entitled to be reinstated. Relying upon the aforesaid judgment of the apex court learned single judge has directed to the reinstatement of the petitioner of the aforesaid case on the post upon which he was working and also directed to pay him full salary for the entire period during which he remained under suspension. However, in case of Babu Lal (Supra) in para 3 of the judgment Hon'ble Apex Court has considered the findings of Additional Chief Judicial Magistrate, Narauli who had found that " Babu Ram accused was not present at the spot and he had no role to play in the distribution of the cement. The APP could not point out even a single factor from the file by which the participation of this accused can be said to have been proved by the prosecution. As such, accused, Babu Ram cannot be held guilty of the offence charged and he is acquitted of the same."
36. On the basis of the aforesaid findings recorded by the Court in criminal case, the Hon'ble Apex Court has rendered its judgment, which rather reinforced the theory of clean and honourable acquittal on merits. Learned Single Judge has virtually ignored the basis and ratio of the decision of Hon'ble Apex Court and went wrong in reading the conclusion alone while deciding the case before him. As there is no indication at all as to whether learned single Judge of this court has taken notice of findings of criminal court and discussed the same with regard to the nature of acquittal as indicated above. Thus on this count also the decision rendered by learned single judge is not binding upon this Court nor it can be treated to be an authority for any assistance to the petitioner's case.
37. Now coming to the facts of the case it is clear that the petitioner was convicted in criminal case u/s 148,149 and 302 IPC by order of Ist Additional District and Sessions Judge, Meerut dated 30.6.1984 while he was working as Collection Amin in revenue department of Government of U.P. in District Meerut. On 10.12.1987 his services were terminated by way of dismissal after holding full-fledged departmental inquiry against him, although charges were grounded on the same set of facts on which criminal prosecution was launched against him, but before his dismissal he was placed under suspension on 9.9.1986 and on account of his aforesaid conviction on 30.10.1986 he was served with a charge sheet where-by asked to submit reply within 15 days. The Inquiry Officer appointed to hold the inquiry, has submitted a report to the District Magistrate on 24.10.1987 after holding inquiry and after going through the inquiry report and reply of the petitioner the District Magistrate has passed a detailed order on 10.12.1987 whereby the petitioner was dismissed from service. The aforesaid order of dismissal is on record as Annexure-1 of the writ petition but the petitioner did not challenge either before any higher authority at departmental forum or any judicial forum. In this case also he did not assail the findings of disciplinary authority on any grounds whatsoever. It was left to attain finality as pointed out in the counter affidavit. Against the order of conviction dated 30.10.1984 the petitioner has preferred an appeal before the High Court, which was numbered as criminal appeal no. 1772 of 1984. On 4.4.1996 a Division Bench of this court has allowed the aforesaid appeal preferred by the petitioner whereby order of conviction and sentence has been set aside. The learned counsel for the petitioner has also placed judgment of a Division Bench of this Court passed in appeal at the time of hearing of the writ petition. For ready reference the relevant part of the judgment of this court rendered in criminal appeal of the petitioner is reproduced as under:-
"Considering all these facts it must be held that the doubt, having arisen on the question of the acceptability or reliability of the prosecution story, is of such nature which is not only a reasonable one but which also reinforces the theory that Manohar and Kunita were not there at the spot at the time of the murder of Subhash."
38. From the aforesaid finding recorded by this Court in criminal appeal filed by the petitioner, it is clear that petitioner has not been exonerated of the charges by recording any positive finding in criminal case to the effect that he did not commit the offence in question rather he has been acquitted by entertaining the benefit of doubt about the prosecution case as the prosecution has failed to establish the guilt beyond reasonable doubt as required under law. Therefore, it cannot be treated to be a honourable and clean acquittal on merits from the aforesaid criminal case and as such he cannot be held to be entitled for reinstatement in service with all consequential benefits of service. At this juncture it is also necessary to point out that the G.O. dated 12.10.1979 contained in Annexure-3 of the writ petition also covers only those cases in which the conduct of delinquent government employee has led his conviction and no disciplinary inquiry has been held by affording him reasonable opportunity of hearing in the matter as provided under Article 311 (2) of the Constitution of India or provisions of Civil Service Classification Control and Appeal Rules 1930. The petitioner was dismissed from service by holding full fledged inquiry after affording full opportunity of hearing as envisaged by Article 311(2) of the Constitution of India and relevant service rules. Therefore, the aforesaid G.O., as it stands, can also not be pressed into service to lend any support to the case of the petitioner. Since the petitioner did neither challenge the order of dismissal on any ground whatsoever and the same has become final against him. Therefore, on this count also I have no hesitation to hold that the order of dismissal passed by disciplinary authority has attained finality and perfectly justified in given facts and circumstances of the case and can not call for any interference by this Court in the process of judicial review under Article 226 of the constitution of India. Thus the first question formulated herein before is answered accordingly.
39. Now coming to the second question which arises for consideration of this Court is that as to whether the petitioner is entitled for same benefit of reinstatement and other consequential benefits of service , which have been given to the other co-accused , namely, Sri Virendra Giri and Sri Brijendra Giri? In this connection the submissions of the learned counsel for the petitioner is that Sri Virendra Giri and Sri Brijendra Giri were also Government servants, but in different department. They were co-accused in the same crime. They have also been convicted by the trial-court, but acquitted by this Court in the same appeal. Meanwhile after conviction by the trial-court, their services were terminated by way of dismissal, but on their acquittal in appeal referred above, they have been reinstated back in service with all consequential benefits. Sri Virendra Giri was reinstated in service on 17.5.1996 as Junior Clerk in Tube-well Circle in Meerut by the Chief Engineer Irrigation Department of Government of Uttar Pradesh and Sri Brijendra Giri was reinstated on 22.4.1996 as Junior Clerk in the Regional Employment Exchange Office, Meerut by the Regional Employment Officer, Meerut. Learned counsel for the petitioner has contended that in identical facts and situations the aforesaid two persons, who were also co-accused in the same crime and Government employees, have been reinstated in service with all consequential benefits including back wages alongwith the arrears of salary and other allowances and regular increments. Therefore, the petitioner may also be given the same treatment. It is further submitted that for redressal of their grievances, the petitioner has also approached the Collector, Meerut by moving an application before him, but the aforesaid application has been rejected vide impugned order dated 18.2.1999. Thereafter he preferred an appeal before the Commissioner, Meerut Division, Meerut, who has also dismissed the appeal of the petitioner vide impugned order dated 2.12.1999 without any justification under law. In support of his submissions learned counsel for the petitioner relied upon a decision of Punjab and Haryana High Court rendered in Harjap Singh and another Versus The State of Punjab and others, reported in 1993(3) SLR 565.
40. Before dealing with the aforesaid submission, it is necessary to refer certain decisions of Hon'ble Apex Court having materials bearing on the issue in which the Apex Court has dealt with similar issue in detail. In Chandigarh Administration and another Vs. Jagjit Singh and another, reported in AIR 1995 Supreme Court 705 Hon'ble Apex Court has held that a particular order passed by the authority in the case of similarly situated another person can never be a ground for issuing a writ in favour of the petitioner on the alleged ground of discrimination. As the order passed by the authority in a particular case cannot be equated with the judgment of Hon'ble Supreme Court/ High Court nor can be elevated to level of precedent. The order passed in favour of other persons might be legal and valid or it might not be . If the order passed by the authority is not warranted under law in respect of a particular person, the authority cannot be compelled to repeat the illegality over again and again. For ready reference the relevant extract of paragraph 8 of the report is reproduced as under:-
" 8. Generally speaking the mere fact that the respondent -authority has passed a particular order in the case of another person similarly situated can never be the ground for issuing a writ in favour of the petitioner on the plea of discrimination. The order in favour of the other person might be legal and valid or it might not be. That has to be investigated first before it can be directed to be followed in the case of the petitioner. If the order in favour of the other person is found to be contrary to law or not warranted in the facts and circumstances of his case, it is obvious that such illegal or unwarranted order cannot be made the basis of issuing a writ compelling the respondent-authority to repeat the illegality or to pass another unwarranted order. The extra-ordinary and discretionary power of the High Court cannot be exercised for such a purpose. Merely because the respondent-authority has passed one illegal/unwarranted order, it does not entitle the High Court to compel the authority to repeat that illegality over again and again. The illegal/unwarranted action must be corrected, if it can be done according to law-indeed, wherever it is possible , the court should direct the appropriate authority to correct such wrong orders in accordance with law- but even if it cannot be corrected, it is difficult to see how it can be made a basis for its repetition. By refusing to direct the respondent-authority to repeat the illegality, the court is not condoning the earlier illegal act/order nor can such illegal order constitute the basis for a legitimate complaint of discrimination. Giving effect to such pleas would be prejudicial to the interests of law and will do incalculable mischief to public interest. It will be a negation of law and the rule of law. Of-course, if in case the order in favour of the other person is found to be a lawful and justified one it can be followed and a similar relief can be given to the petitioner if it is found that the petitioner's case is similar to the other person's case. But then why examine another person's case in his absence rather than examining the case of the petitioner who is present before the court and seeking the relief. It is not more appropriate and convenient to examine the entitlement of the petitioner before the court to the relief asked for in the facts and circumstances of this case than to enquire into the correctness of the order made or action taken in another person's case, which other person is not before the Court nor is his case. In our considered opinion such a course barring exceptional situations- would neither be advisable nor desirable. In other words, the High Court cannot ignore the law and the well accepted norms governing the writ jurisdiction and say that because in one case a particular order has been passed or a particular action has been taken, the same must be repeated irrespective of the fact whether such an order or action is contrary to law or otherwise. Each case must be decided on its own merits, factual and legal. In accordance with relevant legal principles. The orders and actions of the authorities cannot be equated to the judgments of the Supreme Court and High Courts nor can they be elevated to the level of the precedents, as understood in the judicial world. (What is the position in the case of orders passed by authorities in exercise of their quasi-judicial power, we express no opinion. That can be dealt with when a proper case arises)."
41. In State of Bihar and others Vs. Kameshwar Prasad Singh and another reported in J.T. 2000(5) Supreme Court 389 the similar issue has been dealt with again in detail by noticing the earlier decisions rendered by the Hon'ble Apex Court in paragraph 30 of the decision and held that the concept of equality as envisaged under Article 14 of the Constitution is a positive concept , which cannot be enforced in a negative manner. When any authority is shown to have committed any illegality or irregularity in favour of any individual or group of individuals other cannot claim the same illegality or irregularity on ground of denial thereof to them. Similarly wrong judgment passed in favour of one individual does not entitle others to claim similar benefits. For ready reference the observation made by the Apex Court in paragraph 30 of the decision is reproduced as under:-
"30. The concept of equality as envisaged under Article 14 of the Constitution is a positive concept which cannot be enforced in a negative manner. When any authority is shown to have committed any illegality or irregularity in favour of any individual or group of individuals other cannot claim the same illegality or irregularity on ground of denial thereof to them. Similarly wrong judgment passed in favour of one individual does not entitle others to claim similar benefits. In this regard this Court in Gursharan Singh & Ors. V. NDMC & Ors. ( JT 1996(1) SCC 647= 1996(2) SCC 459) held that citizens have assumed wrong notions regarding the scope of Article 14 of the Constitution which guarantees equality before law to all citizens. Benefits extended to some persons in an irregular or illegal manner cannot be claimed by a citizen on the plea of equality as enshrined in Article 14 of the Constitution by way of writ petition filed in the High Court. The Court observed:
" Neither Article 14 of the Constitution conceives within the equality clause this concept nor Article 226 empowers the High Court to enforce such claim of equality before law. If such claims are enforced, it shall amount to directing to continue and perpetuate an illegal procedure or an illegal order for extending similar benefits to others. Before a claim based on equality clause is upheld, it must be established by the petitioner that his claim being just and legal, has been denied to him, while it has been extended to others and in this process there has been a discrimination."
Again in Secretary, Jaipur Development Authority, Jaipur v. Daulat Mal Jain & Ors. (JT 1996(8) SC 387=1997 (1) SCC 35) this Court considered the scope of Article 14 of the Constitution and reiterated its earlier position regarding the concept of equality holding:
"Suffice it to hold that the illegal allotment founded upon ultra vires and illegal policy of allotment made to some other persons wrongly, would not form a legal premise to ensure it to the respondent or to repeat or perpetuate such illegal order, nor could it be legalized. In other words, Judicial process cannot be abused to perpetuate the illegalities. Thus considered, we hold that the High Court was clearly in error in directing the appellants to allot the land to the respondents."
In State of Haryana & Ors. V. Ram Kumar Mann (JT 1997(3) SC 450=1997(3) SCC 321) this Court observed:
"The doctrine of discrimination is founded upon existence of an enforceable right. He was discriminated and denied equality as some similarly situated persons had been given the same relief. Article 14 would apply only when invidious discrimination is meted out to equals and similarly circumstanced without any rational basis or relationship in that behalf. The respondent has no right, whatsoever and cannot be given the relief wrongly given to them, i.e. benefit of withdrawal of resignation. The High Court was wholly wrong in reaching the conclusion that there was invidious discrimination. If we cannot allow a wrong to perpetrate, an employee, after committing mis-appropriation of money, is dismissed from service and subsequently that order is withdrawn and he is reinstated into the service. Can a similarly circumstanced person claim equality under Section 14 for reinstatement? The answer is obviously "No". In a converse case, in the first instance, one may be wrong but the wrong order cannot be the foundation for claiming equality for enforcement of the same order. As stated earlier, his right must be founded upon enforceable right to entitle him to the equality treatment for enforcement thereof. A wrong decision by the Government does not give aright to enforce the wrong order and claim parity or equality. Two wrongs can never make a right,"
42. In view of the law laid down by the Apex Court in the aforesaid decisions, the decision rendered by Punjab and Haryana High Court in case of Harjap Singh (Supra) can be no assistance to the case of the petitioner. A bare perusal of which it is clear that in the judgment in question, Punjab and Haryana High Court did not examine the case before it on the basis of law laid down by the Apex Court as indicated above.
43. Now coming to the facts of the case it is necessary to pointed out that it is not in dispute that the petitioner and other persons, namely, Sri Virendra Giri and Sri Brijendra Giri were co accused in the same crime and convicted alike by the trial court. After conviction their services were also terminated by way of dismissal. It is also not in dispute that in appeal petitioner as well as the aforesaid persons were acquitted by this Court on the ground of benefit of doubts given to them, but the aforesaid persons were reinstated in service by the departmental authorities on account of their acquittal in criminal case. In the case of Sri Virendra Giri it has been mentioned in the order of reinstatement dated 17.5.1996 that on account of conviction of Sri Virendra Giri in a criminal case on 30.6.1984 under Section 148, 149 and 302 IPC, his services were terminated by way of dismissal in view of the Government order dated 12.10.1979 vide order dated 10.7.1986. In Criminal Appeal No.1772 of 1984 this Court vide order dated 4.4.1996 has acquitted Sri Virendra Giri from the criminal charges as a result of which in view of the Government orders dated 6.10.1979 and 12.10.1979 he has been reinstated into service with all consequential benefits of service with full back wages. From the perusal of the order passed in respect of Sri Brijendra Giri contained in Annexure-5 to the writ petition, it appears that on account of the judgment and order of this Court dated 4.4.1996 whereby Sri Brijendra Giri has been acquitted from the criminal charges, he has been reinstated in service and joined his post on 22.4.1996. He has been given his arrears of dues admissible to him, but the actual order of reinstatement is not on the record and the order dated 28.4.1997 whereby his pay fixation was done, is available on the record as Annexure-5 to the writ petition. In this connection it is also necessary to mention here that the orders passed by the departmental authorities in respect of Sri Virendra Giri and Sri Brijendra Giri appear to be on the basis of the Government order dated 12.10.1979 referred earlier and on the basis of fact that after their conviction, they have been dismissed from service straight-way without holding any enquiry as contemplated by Article 311(2) of the Constitution of India and relevant service rules. Therefore, after their acquittal in appeal, the aforesaid Government order has been applied and the benefit has been given to them in-discriminately without having examined the nature of their acquittal from the criminal case.
44. Since I have already taken the view in the earlier part of this judgment that the acquittal of the petitioner as well as other co-accused by this Court in appeal is based on benefit of doubt given to them. It is not clean honourable acquittal based on merits, whereby it can be said that the prosecution story has been completely thrown out and the Court has recorded clear cut positive findings to the effect that accused persons did not commit the offence as alleged against them. Therefore the acquittal of Sri Virendra Giri and Sri Brijendra Giri do not entitle them to be reinstated in the service with all consequential benefits of service with full back wages, rather it was open to the authorities to hold a fresh disciplinary enquiry, if not already held against them by affording them full opportunity of hearing as contemplated by Article 311(2) of the Constitution inasmuch as relevant service rules, but instead of doing so it appears that the departmental authorities have reinstated them in service with all consequential benefits with full back wages by applying and giving the benefit of Government Order dated 12.10.1979 in respect of which I have taken the view in the earlier part of the judgment that the aforesaid Government order cannot be held to be valid in toto as it stands, rather some part of it is invalid and not sustainable. Therefore, I am of the considered view that the reinstatement of the aforesaid persons cannot be treated as valid reinstatement in the eye of law so as to entitle the petitioner to get same benefits on account of his alleged discrimination. In this connection it is also necessary to mention here that the aforesaid observations in respect of reinstatement of Sri Virendra Giri and Sri Brijendra Giri should not be understood for all purposes, rather it should be restricted to the limited purpose for examining the case of the petitioner from the aforesaid angle. For the simple reason that neither the validity of the aforesaid order passed in respect of aforesaid persons are questioned before me nor in view of the decision of the Hon'ble Apex Court in Jagjit Singh's case (Supra) it was necessary to examine the same. Apart from it, the orders were passed in respect of aforesaid persons in the year 1996. Since then a period of more than eight years have been passed, which too were based on Government order dated 12.10.79, the validity of which was also not examined by Court of law at that time. The aforesaid persons are also not before this Court. Therefore, in their absence and behind their back it would not be fair enough to examine the validity of orders passed by departmental authorities in their favour. Thus, it would also not be appropriate in given facts and circumstances of the case to direct the departmental authorities to correct illegality committed by them at this stage in respect of reinstatement of the aforesaid persons. It does not mean that this Court has legalized the aforesaid illegality of the departmental authorities committed in respect of Sri Virendra Giri and Sri Brijendra Giri. Beside this, it is also necessary to point out that both the departmental authorities viz. disciplinary authority as well as appellate authority have recorded categorical findings of fact that petitioner was dismissed from service, though after his conviction by the trial court in criminal case in question, but after holding full-fledged disciplinary enquiry held against him by affording full opportunity of hearing as envisaged under Article 311(2) of the Constitution of India and relevant service rules applicable to him. The order of punishment was not passed under Article 311(2) proviso (II) (a) of the Constitution so as to attract the provisions of Government Order dated 12.10.79, as it initially stands ; whereas Sri Virendra Giri and Sri Brijendra Giri were dismissed from service without holding full-fleged disciplinary enquiry, rather actions were taken against them under Government Order dated 12.10.79, that is why they have been given the benefit of reinstatement under aforesaid Government Order. Their cases are not similar to the petitioner. I do not find any error and illegality in the orders impugned in the writ petition passed by the disciplinary authority as well as the appellate authority on this count also. Thus, the petitioner is not entitled for same treatment as given to the aforesaid persons. In view of the aforesaid discussion the second question formulated by me answered accordingly.
45. Thus from the aforesaid discussions, it is clear that since the petitioner has been acquitted by this Court in appeal in a criminal case not by way of clean and honourable acquittal on merits, rather he was acquitted by this Court on account of appreciation of evidence by entertaining the benefit of doubt against the prosecution case without any positive findings to the effect that he did not commit the offence alleged against him and the competent court has completely thrown out the prosecution case and exonerated the petitioner therefrom. Therefore, in view of the discussions made above, he is not entitled to be reinstated in service and also not entitled to get the consequential benefits of service including full back wages with arrears from the date of his dismissal and other pensionery benefit on attaining the age of superannuation on account of his such acquittal. The petitioner is also not entitled to get the benefits of the Government Order in question on two counts, firstly the Government Order dated 12.10.1979 , as it stood in its original shape, is not applicable to the petitioner on the basis of discussions made in the body of the judgment and secondly, since I have taken the view that certain provisions of the aforesaid Government Order indicated above, are not sustainable in the eye of law. Therefore, on both the counts the petitioner is not entitled to have any benefit of the aforesaid Government Order. Accordingly he is not entitled to any relief claimed in the writ petition.
46. Thus in view of the findings given herein before, the respondent Government of Uttar Pradesh is hereby restrained and directed not to apply G.O.No.6/10/79-Karmik-1 Lucknow dated 12.10.1979, indiscriminately in whole-sale manner, irrespective of merit of individual case of acquittal of Government servant in criminal prosecution forthwith. The aforesaid G.O. is to be applied only in cases of clean and honourable acquittal based on merits, where competent court trying the offences (including higher court hearing the appeal or revision) has completely exonerated the accused from the offence by recording positive finding to the effect that the accused did not commit the offence and whole prosecution story against him thrown out and found false. The acquittal should not be based on extension of benefits of reasonable doubts including appreciation of evidence, lack of sufficient evidence or want of sanction for prosecution or other technical grounds.
47. Thus, in view of the observations and directions made in the body of the judgment, the writ petition stands disposed of finally. There shall be no order as to costs.
The Registrar General, High Court, Allahabad is directed to communicate this order by sending a certified copy to the Secretary (Karmik), Government of Uttar Pradesh for compliance and necessary action and to the Principal Secretary, Law/Legal Remembrance, Government of Uttar Pradesh for perusal and necessary action within fifteen days.
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