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2023 Supreme(HP) 395
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
JYOTSNA REWAL DUA, J.
Manish Kumar - Petitioner
Versus
State of H.P. and others - Respondents
CWP No. 4398 of 2021
Decided On : 07-07-2023
For the Petitioner: Mr. Arun Raj and Mr. Tanuj Thakur.
For the Respondents:Mr. Y.P.S. Dhaulta, Additional Advocate General with Ms. Seema Sharma, Deputy Advocate General.
Point of Law : It is well settled that acquittal in a criminal case does not automatically entitle him for appointment to post.
Headnote:
Narcotic Drugs & Psychotropic Substances Act, 1985 - Section 20 - Re-instate in service - Acquittal in criminal case - Grievance of petitioner is that though he has been acquitted by learned Trial Court in criminal case, yet, respondents have not re-instated him in service - Acquittal in a criminal case is not conclusive of suitability of candidates for post concerned - Para 4(i).
Finding of the Court :
Respondents have refused to consider representation of petitioner, praying for his re-engagement/re-instatement only on account of pendency of appeal - Respondents are per se not against petitioner’s serving in respondent department - They would accept petitioner as a fresh candidate, but will not re-instate him in service at this stage due to pendency of appeal presently pending against judgment of acquittal - Mere pendency of appeal cannot be taken as a ruse for not considering prayer of petitioner for taking him back in service - Acquittal does not get annihilated by mere pendency of appeal - When petitioner was not allowed to work only on strength of a criminal case registered against him; no departmental proceedings were ever conducted against him; criminal case has ended in acquittal of petitioner and; when respondents per se are also not against considering case of petitioner as a fresh appointee; then respondent is not precluded from considering case of petitioner for his re-instatement/re-engagement notwithstanding pendency of appeal instituted by respondents-State.
Result : Petition allowed.
JUDGMENT :
Jyotsna Rewal Dua, J.
The grievance of the petitioner is that though he has been acquitted by the learned Trial Court in the criminal case, yet, the respondents have not re-instated him in service.
2. Facts:-
2(i). The petitioner was appointed as Panchayat Veterinary Sahayak on 01.01.2012 at Veterinary Dispensary Sangooti under Veterinary Hospital Koti, District Chamba. FIR No.66 of 2013, dated 10.12.2013, under Section 20 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (in short ‘NDPS Act’), was registered against the petitioner, wherein he was arrested on 10.12.2013. Learned Trial Court vide its judgment dated 20.01.2015 in Sessions Trial No.34/2014, acquitted the petitioner. This judgment has been assailed by the respondents-State in Criminal Appeal No.445 of 2015, which is pending adjudication in this Court.
2(ii). Based upon his acquittal in the criminal case, petitioner made a request to the respondents to re-instate him. Respondent No.3-the Director Animal Husbandry, Himachal Pradesh vide office letter dated 26.06.2015 (Annexure P-2), declined to consider petitioner’s case till the final outcome of the appeal instituted by the respondents against the judgment of acquittal. Relevant para of this office letter reads as under:-
“Subject:- Regarding judgment dated 20.01.2015 passed by the Session Trial 34/2014 (Regd. No.11/2014) State of H.P. vs. Manish Kumar.
Memo;
Reference to your letter No.AHY-CHM/F(7)-334/2013-13 dated 1.4.2015 on the subject cited above.
In this connection, it is submitted that Under Secretary (Home) to the Government of H.P. has informed this office vide his letter No.Home-E(5)-2-583/2015 dated 15.6.2015 that the Government has decided to go in appeal in this case. The Advocate General H.P. Shimla-1 has been requested to file an appeal in the matter before the Hon’ble High Court, H.P. and the case is still pending for decision in the Hon’ble High Court of H.P. (copy enclosed). Hence, this case can’t be considered at this point of time till the final outcome of the appeal.
Encl.1.
Sd/-
Director, Animal Husbandry,
Himachal Pradesh.”
2(iii). Feeling aggrieved, the petitioner has instituted this writ petition seeking quashing and setting aside of the aforesaid decision taken by respondent No.3 to not to consider petitioner’s case for his reinstatement till the pendency of the appeal. The substantive reliefs prayed by the petitioner run as under:-
“(i) Issue a writ, order or direction in the nature of Certiorari or any other writ for quashing and setting aside impugned communication letter dated 26.06.2021 (Annexure P-2).
(ii) Issue a writ of mandamus directing the respondent no.2 to re-engage the services of the petitioner by giving him all the consequential benefits viz. continuity of service, fixation of pay alongwith arrears of pay till his joining.”
3. I have heard learned counsel on both sides and considered the case file.
4. Observations:-
4(i). In Special Leave Petition (C) No.678 of 2021 (Imtiyaz Ahmad Malla versus The State of Jammu and Kashmir and others), decided on 28.02.2023, Hon’ble Apex Court reiterated that if a person is acquitted or discharged, it cannot always be inferred that he was falsely involved. Unless it is an honourable acquittal, the candidates cannot claim the benefit of the same. What is honourable acquittal was considered in (2013) 1 SCC 598 (Inspector General of Police v. S. Samuthiram), wherein the Court held that the expressions ‘honourable acquittal’, ‘acquitted of blame’ and ‘fully exonerated’ are unknown to the Code of Criminal Procedure or Penal Code. These are coined by judicial pronouncements after full consideration of prosecution evidence and that when the prosecution had miserably failed to prove the charges levelled against the accused, it can possibly be said that the accused was honourably acquitted. The acquittal in a criminal case is not conclusive of the suitability of the candidates for the post concerned. Acquittal in a criminal case does not automatic
