IN TH HIGH COURT OF CHATTISGARH AT BILASPUR
MCCS No. 34 of 2005
Pohari Sharan Pandey
...Petitioners
VERSUS
1. The State of M.P.(Now C.G.)
2. The Superintendent of Police
...Respondents
! Shri Ratan Pusty, Advocate for the petitioner
^ Smt. Anju Ahuja, Deputy Govt. Advocate for the respondents/State.
Hon'ble Justice Shri Satish K. Agnihotri, J)
Dated: 24/07/2007
: Order
APPLICATION UNDER SECTION 22 OF THE ADMINISTRATIVE
TRIBUNAL ACT, 1985 FOR REVIEW OF THE ORDER DATED
13.8.1998, PASSED IN T.A.NO. 3343 OF 1988 STATE OF
M.P. VERSUS POHARI SHARAN PANDEY.
ORDER
(Passed on 24th this day of July, 2007)
1. The present application seeks a review of the order dated
13.8.1998 passed by the Madhya Pradesh Administrative Tribunal,
Jabalpur in T.A. No. 3343/1988 (State of M.P. & another Vs. Pohri
Sharan).
2. The facts in nutshell are that in the year 1979 the
petitioner was working as Police Constable in the office of the
Sub Divisional Officer (Police), Kawardha. The petitioner was
issued a charge-sheet on 11/13.8.1981 to the effect that he had
submitted forged bills for claiming traveling allowance in
respect of the period 6.12.1979 to 29.2.1980 and fraudulently
induced the government to release the amount against the said
bills. The departmental enquiry was initiated against the
petitioner and he was dismissed from service vide order dated
25.1.1982. The appeal against the order of dismissal dated
25.1.1982 was also dismissed on 28.1.2002.
3. The petitioner was prosecuted for the same charges in
Criminal Case No. 257/92 under the provisions of Section 467, 471
and 420 of the Indian Penal Code. The Judicial Magistrate First
Class, Rajnandgaon vide judgment and order dated 25.11.1992
(Annexure A/1) acquitted the petitioner from above stated charges
on the ground that the prosecution has failed to prove the
charges beyond reasonable doubts. It was further observed that
the prosecution was perhaps on account of malice on the part of
the Police Station Incharge Shri A. H. Khan towards the
petitioner.
4. The petitioner also field Civil Suit No. 3-A/86 before the
Civil Judge Class-I, Rajnandgaon, challenging the order of
dismissal dated 25.1.1982. The suit was decreed vide judgment
dated 17.8.1987 in favour of the petitioner on the ground that
the sufficient opportunity of hearing was not afforded to the
petitioner. The enquiry officer Shri G.S.Chandrol despite
complaint against him, was allowed to complete the enquiry.
5. The respondent/State preferred an appeal against the
judgment and decree dated 17.8.2004 in the Court of District
Judge, Rajnandgaon. During the pendency of the appeal in the
Court of District Judge, the Madhya Pradesh Administrative
Tribunal came into existence and the said appeal stood
transferred to the Tribunal and it was numbered as T.A.No.
3343/88. The Tribunal, vide order dated 13.8.1998 (Annexure A/3)
allowed the appeal and the order dated 17.8.1987, passed by the
Civil Judge Class-I was quashed. Consequently, the order of the
disciplinary authority terminating the service of the petitioner
stood maintained.
6. The petitioner has filed this review petition on the ground
that perhaps the information about acquittal of the petitioner
from criminal charges, which attained finality, could not be
pointed out before the Tribunal when the petitioner is protected
under Regulation No. 241 of the Madhya Pradesh Police Regulations
(for short `the Regulations’).
7. The petitioner has field this review application that
perhaps the facts with regard to the acquittal of the petitioner
in criminal case was not pointed out before the Tribunal though
the judgment of acquittal in criminal case was already on record
in the file when the case was heard and decided by the M. P.
Administrative Tribunal.
8. Shri Ratan Pusty, learned counsel appearing for the review
petitioner submits that there is error apparent on the face of
record as the acquittal of the petitioner in criminal Court was
not considered by the Tribunal while deciding the appeal vide
order dated 13.8.1998. According to learned counsel for the
petitioner, the police regulations are statutory in nature, as
has been affirmed by the decisions of the Madhya Pradesh High
Court, thus the petitioner is entitled to the benefit of
Regulation 241 of the Regulations. He further submits that once
the petitioner has been acquitted in criminal case for the same
charges, the petitioner be reinstated in service as a rule and he
should not be punished departmentally when the offence for which
he was tried, constituted the sole ground of punishment.
9. Smt. Anju Ahuja, learned counsel appearing for the
respondents/ State would submit that the fact of acquittal in the
criminal Court was already brought into the notice of the
Tribunal as that formed the part of the records. The petitioner
has been terminated after conducting proper departmental enquiry
in 1982. Thus the acquittal in criminal case vide order dated
25.11.1992 will have no effect in the case. The petitioner
belongs to a disciplined force wherein a person having such
conduct is not desirable in the service. The finding of the
criminal Court is on the basis that the prosecution could not
establish the case against the petitioner beyond reasonable
doubts.
10. Having heard learned counsel for the parties and having
perused the pleadings and records appended thereto, it appears
that the petitioner was found guilty in the departmental enquiry
and the learned Tribunal has not considered the facts of
acquittal in criminal case before coming to the conclusion that
the punishment pursuant to the departmental enquiry imposed on
the petitioner was proper. The Tribunal has passed the judgment
and order on 13.8.1998 whereas the petitioner was exonerated in
criminal case on 25.11.1992. The petitioner ought to have pointed
out the facts of acquittal before the Tribunal. It appears that
the petitioner has failed to produce the same before the
Tribunal, though the judgment in criminal case was a part of
record.
11. Regulation 241 reads as under:
“241. Cases of acquittal.-When a police officer
has been tried and acquitted by a criminal court,
he must as a rule be reinstated. He may not be
punished departmentally when the offence for which
he was tried constitutes the sole ground of
punishment. If, however the acquittal, whether in
the court of original jurisdiction or of appeal,
was based on technical grounds, or if the facts
established at the trial show that his retention
in Government service is undesirable, the
Superintendent may take departmental cognizance of
his conduct, after obtaining the sanction of the
Inspector-General.
241-A. The following instructions are laid down
for the guidance of the magistracy and superior
courts regarding the procedure to be followed in
enquiries into alleged misconduct on the part of
the police acting in their official capacity.”
12. The Hon’ble Supreme Court in the matter of Union of India
and another Vs. Bihari Lal Sidhana1 held as under :-
“5. It is true that the respondent was acquitted
by the criminal court but acquittal does not
automatically give him the right to be reinstated
into the service. It would still be open to the
competent authority to take decision whether the
delinquent government servant can be taken into
service or disciplinary action should be taken
under the Central Civil Services (Classification,
Control & Appeal) Rules or under the Temporary
Service Rules. Admittedly, the respondent had
been working as a temporary government servant
before he was kept under suspension. The
termination order indicated the factum that he, by
then, was under suspension. It is only a way of
describing him as being under suspension when the
order came to be passed but that does not
constitute any stigma. Mere acquittal of
government employee does not automatically entitle
the government servant to reinstatement. As
stated earlier, it would be open to the
appropriate competent authority to take a decision
whether the enquiry into the conduct is required
to be done before directing reinstatement or
appropriate action should be taken as per law, if
otherwise, available. Since the respondent is only
a temporary government servant, the power being
available under Rule 5(1) of the Rules, it is
always open to the competent authority to invoke
the said power and terminate the services of the
employee instead of conducting the enquiry or to
continue in service a government servant accused
of defalcation of public money. Reinstatement
would be a charter for him to indulge with
impunity in misappropriation of public money.”
13. The Hon’ble Supreme Court in the mater of G. M. Tank Vs.
State of Gujarat & another2 wherein the case of Union of India
and another Vs. Bihari Lal Sidhana (supra) was not considered,
held as under:-
“32. In our opinion, such facts and evidence in
the department as well as criminal proceedings
were the same without there being any iota of
difference, the appellant should succeed. The
distinction which is usually proved between the
departmental and criminal proceedings on the basis
of the approach and burden of proof would not be
applicable in the instant case. Through finding
recorded in the domestic enquiry was not found to
be valid by the Courts below, when there was an
honorable acquittal of the employee during the
pendency of the proceedings challenging the
dismissal, the same requires to be taken note of
and the decision in Paul Anthony’s case (supra)
will apply. We, therefore, hold that appeal filed
by the appellant deserves to be allowed.”
14. In the case in hand the charge in the criminal case as well
as in the departmental enquiry was one and the same. The alleged
forged police rojnamcha sanha was produced before the Magistrate.
Shri A. H. Khan, the then Incharge was also examined and cross
examined. The Magistrate had found that the witness Shri P. R.
Sao had admitted the alleged forged bills as genuine. The then
S.D.O.(P) Shri G. R. Shrivastava also supported the case of the
petitioner and the criminal Court found that the prosecution was
lodged on account of the malice on the part of the Police Station
Incharge Shri A. H. Khan towards the petitioner. In the
departmental enquiry Shri P. R. Sao and Shri A. H. Khan were also
examined. The then S.D.O.(P) was not examined, under whom the
petitioner had actually worked, at the relevant time but other
S.D.O.(P) Shri P. N. Awasthi was examined. Thus, it is found that
the evidence and the documents produced before the criminal
Court, as well as before the enquiry authority, were almost the
same, except that some new witnesses like Shri P. N. Awasthi,
S.D.O.(P), who was not S.D.O.(P) at the relevant time, were
examined in the departmental enquiry. The petitioner is entitled
to the benefit under Regulation 241 of the Regulations, which is
statutory in nature. Regulation 241 clearly mandates that when a
police officer has been tried and acquitted in a criminal Court,
he must, as a rule, be reinstated. He may not be punished
departmentally when the offence for which he was tried
constitutes the sole ground of punishment. In the case of
acquittal on technical grounds, the departmental cognizance of
misconduct may be taken after obtaining the sanction of the
Inspector General of Police. In the present case there was clear
cut exoneration and there was no finding against the petitioner
that he was undesirable in service.
15. As a result, and for the reasons mentioned herein above, the
review application is allowed. The petitioner is entitled to the
reinstatement in service without consequential benefits, except
back wages.
16. However, with regard to the payment of back wages the same
cannot be decided as no foundation has been laid with regard to
the gainful employment of the petitioner elsewhere, during this
period. The petitioner was terminated from service on 25.11.1982,
what would be the financial implications, there is no material
available for taking any decision with regard to the grant of
back wages. Accordingly, the petitioner is granted liberty to
make a representation before the authorities concerned, pointing
out details about his gainful employment elsewhere and other
relevant materials for appropriate relief. The State Authorities
shall consider the representation, on its own merits, in
accordance with law, within a reasonable period, after having
afforded the opportunity of hearing to the petitioner. In the
facts and circumstances of the case there shall be no order as to
costs.
J U D G E