The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.15879 of 2019 An application under Articles 226 and 227 of the Constitution of India. Tapan Kumar Pradhan @ Tapan Pradhan Petitioner Mr. Panchanan Sahoo, Advocate -versus- State of Odisha & another Opp. Parties Mr. N.K. Praharaj, A.G.A. CORAM: JUSTICE A.K. MOHAPATRA _____________________________________________________ Date of hearing : 30.01.2024 | Date of Judgment: 30.01.2024 ______________________________________________________ A.K. Mohapatra, J. : 1. Heard Mr. Panchanan Sahoo, learned counsel appearing for the Petitioner as well as Mr. N.K. Praharaj, learned Addl. Government Advocate for the State-Opposite Parties. Perused the pleadings of the parties as well as documents annexed thereto. 2. The present writ application has been filed with a prayer for a direction to the Opposite Parties to reinstate the Petitioner as a Home Guard in the Home Guard Organization, Sambalpur after his acquittal in the criminal case by quashing the impugned discharge order dated 20.04.2018. // 2 // 3.
Facts
The factual background of the case leading to filing the present case, in short, is that, the Petitioner was initially appointed as a Home Guard on 30.06.2008. After such appointment the Petitioner joined the Home Guard training on 01.11.2008. Thereafter, the Petitioner had successfully completed such training on 12.12.2008 as per the certificate under Annexure-2 to the writ application. While continuing to work as a Home Guard the petitioner was awarded for his performance on 01.04.2015 under Annexure-3 to the writ application. 4. While the matter stood thus, on 02.01.2017 the Petitioner was entangled in a criminal case registered in Charmal Police Station bearing P.S. Case No.2/17 for commission of offence punishable under Section 379/34 I.P.C. In the F.I.R. lodged by the informant in the above noted criminal case, it was alleged that a truck carrying Nestle Company products met with an accident. Some persons belonging to the locality have stolen the products, which were being transported in the truck. Since the Petitioner was implicated/ named in the F.I.R., the petitioner was discharge from the service of the Home Guard vide order dated 09.08.2017 under Annexure-4 to the writ application. After his discharge from service, the Petitioner pursued the criminal case bearing G.R. Case No.9/17 corresponding to Trial Case No.254/17 pending in the // 3 // court of learned S.D.J.M. Rairakhol. In the aforesaid criminal case, after conducting a trial, the learned Trial Court has acquitted the Petitioner vide its judgment dated 07.11.2017 from the alleged commission of offence under Section 379 read with 34 I.P.C. A copy of the trial court judgment has been filed as Annexure-5 to the writ application. 5. This Court carefully scrutinized the judgment dated 07.11.2017 under Annexure-5 to the writ application. On a careful consideration, this Court observed that several persons were implicated as accused in the above noted case for commission of alleged crime. However, the Trial Court after recording evidence of the witnesses, has finally come to a conclusion that the prosecution has not been able to establish it’s case against accused persons beyond all reasonable doubt and as such the benefit of doubt is to be extended to the accused persons. Since the accused persons were not found to be guilty for offences punishable under Section 379/34 I.P.C., they were acquitted under the provisions of Section 248(1) of the Cr.P.C. and they were set at liberty. 6. Upon a careful scrutiny of the judgment, this Court is of the considered view that no credible/ trustworthy evidence was produced by prosecution to implicate the accused persons including the present petitioner in the alleged crime. Thus, the accused // 4 // persons including the present petitioner have been acquitted in the aforesaid criminal case. On the basis of such acquittal order the Petitioner approached the Opposite Parties for his reinstatement in service. However, the Opposite Party No.1-Commandant General, Home Guard vide his order dated 20.04.2018 rejected the application of the Petitioner. On perusal of the rejection order under Annexure-6, it is seen that the Commandant General has observed that order of acquittal was passed by giving the benefit of doubt to the accused. On such ground the Commandant General-cum- Appellate authority has rejected the prayer of the Petitioner for reinstatement in service. 7.
Legal Reasoning
26. We are satisfied that the findings of the appellate judge in the criminal case clearly indicate that the charge against the appellant was not just, "not proved" - in fact the charge even stood "disproved" by the very prosecution evidence. As held by this Court, a fact is said to be "disproved" when, after considering the matters before it, the court either believes that it does not exist or considers its non-existence the so probable circumstances of the particular case, to act upon the supposition that it does not exist. A fact is said to be "not proved" when it is neither "proved" nor "disproved" [See Vijayee Singh and Others v. State of U.P. (1990) 3 SCC 190]. that a prudent man ought, under Eventually, the Hon’ble Supreme Court in para-30 of the judgment was pleased to declare the order of termination dated 31.03.2004 and the order passed by the Appellate Authority dated 08.10.2004 and order dated 29.03.2008 and 25.06.2008 refusing, to reconsider and review the penalty respectively, are all illegal and untenable. 8. Learned Additional Government Advocate appearing for the State-Opposite Parties contended that the State-Opposite Parties // 6 // have filed a counter affidavit. Further, referring to the counter affidavit, learned Additional Government Advocate submitted that the Petitioner is no doubt acquitted by the trial court after the trial was concluded. However, such acquittal is on the basis of benefit of doubt being given to the Petitioner. He further contended that since the prosecution failed to prove it’s case beyond all reasonable doubt, therefore, the Petitioner has been given benefit of doubt by the learned Trial Court. In the aforesaid context, learned Additional Government Advocate submitted that the Petitioner is not entitled to be reinstated in service as he has been acquitted by extending the benefit of doubt and as the prosecution failed to establish it’s case beyond all reasonable doubt. 9. The learned Additional Government Advocate further contended that there are materials on record which was placed before the learned Trial Court and on scrutiny of such materials, the same will indicate towards involvement of the Petitioner in the aforesaid crime. Learned Additional Government Advocate very fairly admitted that no Disciplinary Proceeding, whatsoever, was initiated against the petitioner. He also contended that the trial court record reveals some of the stolen articles were recovered from the possession of the present Petitioner. Although no formal Disciplinary Proceeding was initiated against the present Petitioner. // 7 // However, the Petitioner has been issued with a proper show-cause notice giving him ample opportunity to put-forth his case before the authorities. After considering the reply of the present Petitioner, the Competent Authority has passed the order of removal from service. In such view of the matter, learned Additional Government Advocate submitted that the writ application is devoid of merit and accordingly, the same should be dismissed. 10. In course of his argument, learned Additional Government Advocate also referred to the judgment of the Hon’ble Supreme Court in The State of Rajasthan and ors. Vs. Phool Singh reported in AIR 2022 SC 4176. Further, referring to the aforesaid judgment, learned Additional Government Advocate submitted that in the abovementioned case the Hon’ble Supreme Court was dealing with a case similar to the Petitioner’s case. After carefully examining the case of the petitioner in the above noted case, the Hon’ble Supreme Court has come to a specific conclusion that the acquittal of the Respondent-Accused Constable in that case, was not an honorable acquittal and that the same is an acquittal or benefit of doubt. Under such circumstances, the Hon’ble Supreme Court has held that the Petitioner is not entitled to be reinstated in service. 11. With regard to the finding of the learned Single Judge as well as the Hon’ble Division Bench of the Rajasthan High Court // 8 // interfering with the order passed by the Disciplinary Authority of the Rajasthan Police by placing reliance on the judgment in the case of Captain M. Paul Anthony vs. Bharat Gold Mines Ltd. reported in (1999) 3 SCC 769, it was held to be erroneous and illegal. Further, the Supreme Court has observed that it was the Disciplinary authority which was best equipped to reach a finding whether a “misconduct” had been committed and that the prime concern of a Judge should be whether such a finding had been arrived after following a fair procedure and by following the principles of natural justice and fairness. 12. On a careful analysis of the submissions made by the learned counsels appearing for the respective parties and upon a scrutiny of the pleadings of the respective parties, this Court found that the only question that requires determination in the present writ application is whether the Petitioner, who was implicated in a case for commission of an offence punishable under Section 379 read with Section 34 I.P.C. and was discharged from service on the basis of such allegation, is entitled to be reinstated in service once he has been acquitted by the trial court. On a careful analysis of the factual background it appears that no formal Disciplinary Proceeding was ever drawn up against the present petitioner. He was only issued // 9 // with a notice to show-cause once he was implicated in the alleged crime. 13. Thereafter, the Commandant General has passed the order of discharge from service, and accordingly, the Petitioner was removed from service. However, subsequently the Petitioner has been acquitted in the criminal trial. On perusal of the judgment of the Trial Court under Annexure-5, this Court observed that the prosecution has failed to prove the case beyond all reasonable doubt and accordingly the trial court has extended the benefit of doubt to all the accused persons including the present petitioner. On a close scrutiny of the judgment of the trial court, this Court observes that no specific material whatsoever was produced to implicate the present Petitioner and other accused persons in the alleged crime. Further, considering the nature and magnitude of the offences committed, this Court is of the view that in a case of this nature it is quite possible that some persons may have been implicated falsely. Therefore, during adjudication by the trial court it is required to be ascertained as to whether the person is guilty or not. 14. The Trial Court, after taking into account all the available evidence has come to a specific conclusion that the prosecution has failed to prove its case beyond all reasonable doubt and accordingly, the Trial Court has extended the benefit of doubt to the // 10 // accused persons including the present petitioner. In the aforesaid context, this Court would like to refer to the judgment of the Hon’ble Supreme Court in Ram Lal’s case (supra). In Para-25 of the judgment in the Ram Lal’s case, it is clearly stated that expressions like “the benefit of doubt” or “honorably acquitted” used in any judgment by the trial court in a criminal case are not to be understood as a magic incantations. Therefore, a duty is cast upon the Court to examine the entire judgment to find out the involvement of the accused persons. Particularly, the employee who was removed from service on the basis of such allegation. 15. So far as the facts of the present case are concerned, it is an admitted position that no Disciplinary proceeding was initiated against the petitioner. He was only issued with a show-cause and thereafter, he was discharged from duty. The judgment that was relied upon by the learned Additional Government Advocate appearing for the State-Opposite Parties i.e. in Phool Singh’s case (supra), the Hon’ble Supreme Court was considering a case where a Constable was found guilty in a Disciplinary Proceeding although he was acquitted in the criminal case. Therefore, the factual background as involved in Phool Singh’s case (supra) cannot be equated with the facts of the judgment in Ram Lal’s case (supra). The distinction between the above mentioned two judgments is that // 11 // in Ram Lal’s case there was no Disciplinary Proceeding, however, in the case of Phool Singh, the person was found guilty in the Disciplinary Proceeding. Therefore, the Hon’ble Supreme Court have cautioned the courts not to interfere in the action of the Disciplinary Authority unless it is found that the Disciplinary Authority has committed some illegalities like no proper and fair procedure has been followed, or that the principles of natural justice have been violated. 16. Reverting back to the facts of the Petitioner’s case, this Court is of the considered view that since the Petitioner was only implicated in a criminal case and no Disciplinary Proceeding whatsoever was initiated against him, therefore, after the Petitioner was acquitted in the criminal case pursuant to a decision arrived at by the trial court after taking into account the evidence on record is binding upon the authorities, although it was open to the authorities to initiate Disciplinary Proceeding against the petitioner. The departmental authorities could have independently led evidence in the Disciplinary Proceeding to prove the charges against the Petitioner. The same having not been done in the case of the Petitioner, this Court is of the considered view that the case of the Petitioner is squarely covered by the judgment of the Hon’ble Supreme Court in Ram Lal’s case (supra). Accordingly, the // 12 // contentions raised by the learned Additional Government Advocate are found to be unsustainable. 17. In view of the aforesaid analysis of law, as well as keeping in view the factual position of the present case, this Court is inclined to quash the impugned order dated 20.04.2018 under Annexure-6 to the writ application. The matter is remanded back to the Opposite Party No.1 to consider the matter afresh keeping in view the judgment of the Hon’ble Supreme Court in Ram Lal’s case (supra) and take a final decision within six weeks from the date of communication of a copy of this judgment. Further, it is directed that if there is no other legal impediment, and the Opposite Party No.1 comes to a conclusion that the Petitioner’s case is covered by the judgment in Ram Lal’s case (supra), then necessary steps be taken by the Opposite parties to reinstate the Petitioner in service as expeditiously as possible preferably within six weeks from the date of coming to such a conclusion. 18.
Arguments
In course of his argument, learned counsel for the Petitioner referred to the latest judgment of the Hon’ble Supreme Court in Ram Lal vs. State of Rajasthan & ors. in Civil Appeal No.7935 of 2023 decided vide judgment dated 04.12.2023. Referring to the aforesaid judgment, learned counsel for the petitioner submitted that the expression benefit of doubt and honorably acquitted used in the judgment are not to be understood as magic incantations. For better appreciation, the relevant portion of the judgment is quoted hereinbelow:- 25. Expressions like "benefit of doubt" and "honorably acquitted", used in judgments are not to be understood as magic incantations. A court of law will not be carried away // 5 // by the mere use of such terminology. In the present case, the Appellate Judge has recorded that Exh. P-3, the original marksheet carries the date of birth as 21.04.1972 and the same has also been proved by the witnesses examined on behalf of the prosecution. The conclusion that the acquittal in the criminal proceeding was after full consideration of the prosecution evidence and that the prosecution miserably failed to prove the charge can only be arrived at after a reading of the judgment in its entirety. The court in judicial review is obliged to examine the substance of the judgment and not go by the form of expression used.
Decision
Accordingly, the writ petition is disposed of in terms of the aforesaid observations. However, there shall be no order as to cost. (A.K. Mohapatra) Judge Orissa High Court, Cuttack The 30th of January, 2024/ Anil. Signature Not Verified Digitally Signed Signed by: ANIL KUMAR SAHOO Designation: Junior Stenographer Reason: Authentication Location: High Court of Orissa Date: 10-Feb-2024 15:53:07