Judgment:
ORDER
D.K. Sinha, J.
1. This Letters Patent Appeal is directed against the order dated 13.02.2009, passed in W.P.(S) No. 2565 of 2007, by which the learned Single Judge dismissed the writ petition of the appellant.
2. The appellant had filed the said writ petition for issuance of appropriate writ(s)/order(s)/direction(s) for quashment of the order dated 13.11.2002, passed by the Respondent No. 2, by which the petitioner was dismissed from his service against the charge related to moral turpitude for that he was arrested for an offence under Section 376/511 of the Indian Penal Code and further to reinstate him in service on the ground that he was acquitted from the charge that was framed under Section 354 I.P.C. by the Chief Judicial Magistrate, Bokaro on 22.02.2007 and payment of back wages.
3. The short fact of the case was that the appellant was working as clerk in the Jharkhand Armed Police-IV at Bokaro. In the meantime, a criminal case was registered against him by the informant, who was also working in the same police force alleging, inter alia, that the appellant had attempted to commit rape on his daughter on 27.05.1996 and thereby a case was registered for the offence under Sections 376/511 of the Indian Penal Code. For the allegation that the appellant was arrested on his involvement in an offence related to moral turpitude, a separate departmental proceeding was initiated against him and after according opportunity of audience to the appellant, he was dismissed from the service on 13.11.2002.
4. Against such dismissal, the appellant preferred W.P.(S) No. 6093 of 2002, which was disposed of by this Court by the order dated 29.11.2002 however with the observation,
So far as the order of removal dated 13.11.2002 (Annexure-8) is concerned, the petitioner may prefer appeal. He may also take the advantage if he is acquitted in the criminal case. The writ petition stands disposed of.
5. The appellant was put on trial for the charge framed for the offence under Section 354 of the Indian Penal Code but was acquitted by the Court of the Chief Judicial Magistrate, Bokaro, in Trial No. 2014 of 2007 arising out of G.R. No. 599 of 1996 on 22.02.2007 by giving him benefit of doubt as the court observed that the prosecution failed to prove the charge against the appellant beyond all reasonable doubt.
6. Before the judgment of acquittal of the appellant was recorded, he had preferred an appeal before the competent authority i.e the Inspector General of Police, Headquarters, Jharkhand pursuant to the observation made by this Court in W.P.(S) No. 6093 of 2002. However, his appeal was dismissed by a detailed order with the observation that it was settled law that the criminal trial and departmental proceeding may proceed simultaneously for the common cause of action.
7. The appellant raised the plea before the writ court that since he has been acquitted from the charge under Section 354 of the Indian Penal Code, he should have been reinstated to his job by the respondents with the back salary and the interest thereon with effect from 13.11.2002.
8. Mr. I. Sinha, learned Counsel appearing on behalf of the appellant submitted that the appellant had a genuine cause for his reinstatement on the post of clerk as he was working in the Jharkhand Armed Police-IV at Bokaro prior to his dismissal. Though the charge-sheet was submitted under Section 376/511 of the Indian Penal Code but the charge could be framed by the C.J.M. upon finding prima facie case under Section 354 of the Indian Penal Code and that since the charge could not be proved, the appellant was acquitted admittedly, after according him benefit of doubt and in that manner the appellant ought to have been reinstated.
9. Mr. I. Sinha, the Counsel pointed out that a similar situation fell for consideration and the Hon'ble Supreme Court of India in 'G.M. Tank v. State of Gujarat and Ors.' reported in : (2006) 5 SCC 446 held,
There is no iota of evidence against the appellant to hold that the appellant is guilty of having illegally accumulated excess income by way of gratification. The respondent failed to prove the charges levelled against the appellant. It is not in dispute that the appellant being a public servant used to submit his yearly property return relating to his movable and immovable property and the appellant has also submitted his return in the year 1975 showing his entire movable and immovable assets. No query whatsoever was ever raised about the movable and immovable assets of the appellant. In fact, the respondent did not produce any evidence in support of and/or about the alleged charges levelled against the appellant.
Likewise, the criminal proceedings were initiated against the appellant for the alleged charges punishable under the provisions of the PC Act on the same set of facts and evidence. It was submitted that the departmental proceedings and the criminal case are based on identical and similar (verbatim) set of facts and evidence. The appellant has been honourably acquitted by the competent court on the same set of facts, evidence and witness and, therefore, the dismissal order based on the same set of facts and evidence on the departmental side is liable to be set aside in the interest of justice.
10. In Moni Shankar v. Union of India reported in : (2008) 3 S.C.C. 484, the Apex Court held,
The departmental proceeding is a quasi-judicial one.
Although the provisions of the Evidence Act are not applicable in the said proceeding, principles of natural justice are required to be complied with. The courts exercising power of judicial review are entitled to consider as to whether while inferring commission of misconduct on the part of a delinquent officer relevant piece of evidence has been taken into consideration and irrelevant facts have been excluded therefrom. Inference on facts must be based on evidence which meet the requirements of legal principles. The Tribunal was, thus, entitled to arrive at its own conclusion on the premise that the evidence adduced by the Department, even if it is taken on its face value to be correct in its entirety, meet the requirements of burden of proof, namely, preponderance of probability. If on such evidences, the test of the doctrine of proportionality has not been satisfied, the Tribunal was within its domain to interfere. We must place on record that the doctrine of unreasonableness is giving way to the doctrine of proportionality.
11. However, the learned Single Judge held that if the delinquent employee is acquitted from his criminal prosecution after giving him benefit of doubt, it cannot be observed that he was honourably acquitted and so he was entitled for reinstatement.
12. The Apex Court in Nelson Motis v. Union of India reported in : (1992) 4 S.C.C. 711 observed that the nature and scope of the criminal cases were different from those of a departmental disciplinary proceedings and an order of acquittal, therefore, cannot conclude the departmental proceedings. This is so because in a criminal case the charge has to be proved by the standard of proof beyond reasonable doubt while in departmental proceedings the standard of proof for proving the charge is preponderance of probabilities and the appellate authority did not find the case of the appellant after considering his representation to be a fit case for his reinstatement in the job on the fact finding report of the Enquiry Officer which cannot be re-apprised.
13. Learned Sr. Standing Counsel-I opposed the contention and submitted that the learned Single Judge was justified in dismissing the writ petition of the appellant on the ground that the ratio laid down in 'G.M. Tank v. State of Gujarat and Ors.' (supra) was not applicable in the case of the appellant and he was not acquitted honourably by the Trial Court rather a benefit of doubt was given to him. On the other hand, the ratio laid down in Senior Superintendent of Post-offices, Pathanamthitta and Ors. v. A. Gopalan : (1997) 11 S.C.C. 239 was more relevant in the facts and circumstances of the case and the appellant was acquitted by giving him benefit of doubt for the charge under Section 354 of the Indian Penal Code which relates to outraging the modesty of a minor girl aged about 13 years, as such, for want of clean acquittal the appellant did not deserve reinstatement in the disciplined organization like Jharkhand Armed Police.
14. In the facts and circumstances of the case, we find that the appellant was acquitted for the charge under Section 354 of the Indian Penal Code which relates to moral turpitude after according him benefit of doubt and we find substance in the argument advanced on behalf of the Respondent-State that the appellant was not honourably acquitted. The appeal preferred by the appellant before the competent authority was dismissed upon appreciation of the enquiry report by a detailed speaking order that was communicated to the appellant and the same needs no reappraisal at this stage in the Letters Patent Appeal. We are of the firm view that even in a case of acquittal for the charge related to moral turpitude but by giving benefit of doubt, the claim of the delinquent for reinstatement cannot be appreciated who was dismissed pursuant to a Departmental Enquiry/proceeding. Learned Counsel appearing on behalf of the appellant failed to show any reasonable ground so as to call for interference in the impugned order passed by the learned Single Judge in W.P.(S) No. 2565 of 2007 on 13.02.2009.
15. There being no merit, this Letters Patent Appeal is dismissed.