High Court of H.P.IN THE HIGH COURT OF HIMACHAL PRADESH,

SHIMLA.

CWP No. 3204/2009

Reserved on: 2.1.2016

Decided on: 7.1.2016

___________________________________________________

Bimla Devi. …Petitioner.

Versus

State of Himachal Pradesh and others. …Respondents.

______________________________________________________________

Coram:

Hon’ble Mr. Justice Rajiv Sharma, Judge.

Hon’ble Mr. Justice P.S. Rana, Judge.

Whether approved for reporting?

1

Yes

For the Petitioner: Mr. Sanjeev Bhushan, Sr. Advocate with Ms.

Abhilasha Kaundal, Advocate.

For the Respondents: Mr. J.S. Guleria, Assistant Advocate General

for the respondent-State.

_________________________________________________________

Per Justice Rajiv Sharma, Judge:

The petitioner has sought judicial review of the

judgment rendered by the Himachal Pradesh

Administrative Tribunal in OA (M) No. 331/2001 dated

20.7.2007 by way of present writ petition.

2. “Key facts” necessary for the adjudication of

this petition are that Roshan Lal, husband of petitioner,

1

Whether reporters of the local papers may be allowed to see the judgment? Yes

::: Downloaded on - 15/10/2022 20:00:24 :::CIS

High Court of H.P. 2

was appointed as Forest Guard with the respondent

department. He was promoted as Deputy Ranger on

3.7.1970. He was charged with and tried for offences

punishable under sections 41 and 42 of the Indian

Forest Act. He was convicted by the trial court. In an

appeal, his conviction was upheld. However, Roshan Lal

filed a Criminal Revision before this Court. It was

allowed on 5.12.1997. He was acquitted. The operative

portion of the judgment reads as under:

“After scrutinizing the entire oral and documentary evidence

on record, I am of the considered view that both the courts

below have committed grave error in appreciating the

evidence in its right perspective and the judgments and orders

of convictions and sentences have entailed miscarriage of

justice to the convicts in the present case. No doubt, 91

sleeps of Deodar were recovered by the DFO, which were being

illicitly transported in the truck hired by convict Narinder

Kumar for transporting 146 logs in pursuance of challan

Ex.PW-1/A. From the evidence on record, the prosecution has

failed to prove beyond reasonable doubt that the timber was

transported by convict Narinder Kumar and other convicts

forest officials had conspired with him and allowed the

transportation of the timber illegally. There is no evidence on

record to show that 146 logs transported by convict Narinder

Kumar under challan Ex.PW -1/A were not in conformity with

the rules and thereby convicts have committed offence

punishable under sections 41 and 42 of the Indian Forest Act

for the reasons stated in the earlier part of the judgment.

In the result, for the above said reasons, all the revision

petitions are allowed and the judgment and orders of

convictions and sentences passed by both the court s below are

::: Downloaded on - 15/10/2022 20:00:24 :::CIS

High Court of H.P. 3

set aside. The convicts shall stand acquitted of the charges.

Bail bonds are discharged. Fine if deposited, be refunded to

the petitioners.”

3. His suspension was also revoked on

5.6.1998. In the meantime, the Departmental Promotion

Committee was also held on 12.5.1988 for considering

him for promotion to the post of Ranger. However, the

recommendations were kept in sealed cover due to

pendency of criminal case. He was promoted notionally

on 21.7.2000. Roshan Lal aggrieved by the order dated

21.7.2000 filed O.A. (M) No.331/2001. It was dismissed

by the H.P. Administrative Tribunal on 20.7.2007.

Hence, the present petition.

4. Case of the petitioner precisely is that her

husband was acquitted by this Court on 5.12.1997. His

suspension was also revoked on 5.6.1998. In view of

this, petitioner’s husband should have been granted

actual/effective monetary benefits with effect from

8.2.1989. Case of the respondents precisely is that

acquittal of the husband of the petitioner was not based

on positive findings and moreover, he has not performed

the duties/responsibilities of the higher post as Forest

::: Downloaded on - 15/10/2022 20:00:24 :::CIS

High Court of H.P. 4

Ranger. Thus, he was promoted as Ranger on 21.7.2000

on notional basis.

5. Mr. J.S. Guleria, learned Asstt. Advocate

General has drawn the attention of the Court to para

16.32 (2) iv) of the Handbook on Personnel Matter. The

relevant extract of the same has been placed on record.

According to these instructions, on the conclusion of

disciplinary case/criminal prosecution which results in

dropping of allegations against the Government servant,

the sealed cover or covers shall be opened. In case the

Government servant is completely exonerated, the due

date of his promotion will be determined with reference

to the position assigned to him in the findings kept in

the sealed cover/covers and with reference to the date of

promotion of next junior on the basis of such person.

There is also a rider that there may be cases where the

proceedings whether disciplinary or criminal are for

example delayed at the instance of the employee or the

clearance in the disciplinary proceedings or acquittal in

the criminal proceedings is with benefit of doubt or on

account of non-availability of evidence due to the acts

attributable to the employee, in these cases, competent

::: Downloaded on - 15/10/2022 20:00:24 :::CIS

High Court of H.P. 5

authority may deny the arrears of salary or part of it.

However, it has to record its reasons for doing so.

Roshan Lal has been acquitted since the prosecution has

failed to prove the case against him beyond the

reasonable doubt. He has not been acquitted merely by

giving him benefit of doubt. Thus, Roshan Lal was

required to be promoted with effect from 8.2.1989 by

giving him actual monetary benefits instead of promoting

notionally with all the consequential benefits.

6. Division Bench of Orissa High Court in

Jogendra Garabadu and others vs. Lingaraj Patra

and others, AIR 1970 Orissa 91 has held that "acquittal

on merits" mean s an acquittal after trial on a

consideration of the evidence as distinguished from

acquittals due to certain defects such as want of

sanction, acquittals on weakness of prosecution

evidence, on benefit of doubt or on insufficiency of

evidence. Division Bench has held as under:

[16] What the words "acquittal on merits" precisely connote

have not been dealt with in any of the decisions. Reference

was made to a decision of our High Court reported in (1959)

25 Cut LT 366 = (AIR 1960 Orissa 29) where a distinction has

been made between "acquittal on grounds of extreme

weakness of the prosecution evidence" and "acquittal by giving

benefit of doubt." It has been observed that while the former

::: Downloaded on - 15/10/2022 20:00:24 :::CIS

High Court of H.P. 6

will amount to an acquittal on merits, the latter will not. For

this purpose, it was observed that the criminal court judgment

can be gone through to find out the reasons for the acquittal,

though the reasonings and conclusions therein cannot be

relied upon as conclusive or decisive in the civil suit claiming

damages for malicious prosecution.

[17] It is well settled that in every suit for malicious

prosecution, the civil Court must hear the evi dence on both

sides and decide for itself independently whether or not the

prosecution was without reasonable and probable cause and

malicious. It is equally well settled that the judgment of the

criminal Court is evidence and conclusive at that to show th e

acquittal of the plaintiffs as a fact in issue which is one of the

essential elements to be determined in a suit for damages, for

malicious prosecution. No doubt the judgment of a criminal

Court is admissible to show certain facts and circumstances,

such as, the names of witnesses examined, the documents

exhibited or that the acquittal was on some technical grounds

without going into the evidence or on the merits of the

evidence, but in our opinion, the reasonings and conclusions

in the judgment of a criminal Court cannot be gone into to

determine whether the acquittal resulted on account of the

prosecution evidence being weak, insufficient or doubtful.

Therefore, the words "acquittal on merits" must mean

an acquittal after trial on a consideration of the evidence as

distinguished from and in contradistinction to acquittals

which occur due to certain technical defects, such as, want of

sanction etc. There seems to be no authority, and in our

opinion, no adequate justification to make a further

distinction between acquittals on weakness of prosecution

evidence, acquittals by giving benefit of doubt or acquittals on

insufficiency of evidence and holding that only some of them

will amount to acquittals on merits and others not. Embarking

on making such a distinction will necessarily mean utilisation

of reasonings and conclusions in the criminal court judgment

by the civil court in the trial of the suit which is not

permissible.

::: Downloaded on - 15/10/2022 20:00:24 :::CIS

High Court of H.P. 7

7. The expression “benefit of doubt” has been

explained by their Lordships of the Hon’ble Supreme

Court in State of U.P. vs. Iftikhar Khan and others,

(1973) 1 SCC 512 as under:

[27] Mr. Mookerjee no doubt urged that the High Court might

have been influenced by the fact that the evidence of the

defence witnesses creates a lot of doubt about the

participation of the first respondent in the crime. We are

prepared to agree that if the said evidence really raises a

reasonable doubt in the mind of the Court regarding the

participation in the crime by the first respondent, that doubt

must be resolved in his favour. In this context, it is pertinent

to quote the following observations in the decision in AIR

1972 SC 975 (supra) :

"The benefit of doubt to which the accused is entitled is

reasonable doubt-the doubt which rational thinking men will

reasonably, honestly and conscientiously entertain and not

the doubt of a timid mind which fights shy-though unwittingly

it may be-or is afraid of the logical consequences, if that

benefit was not given, or as one great Judge said it is not the

doubt of a vacillating mind that has not be moral courage to

decide but shelters itself in a vain and idle scepticism."

8. Learned Single Judge of Gauhati High Court

in Pratul Bhattacharjee vs. The State of Assam ,

Crimes 1987 (2) 816 has held that when the trial court

comes to the finding that the prosecution totally fails to

prove the charge, then the user of the expression 'benefit

of doubt' in acquitting the accused is improper and

illegal. Learned Single Judge has held as under:

::: Downloaded on - 15/10/2022 20:00:24 :::CIS

High Court of H.P. 8

[5] The trial courts should be v ery cautious in using that

expression in a case where" Government servant is involved It

should not be used as a fashion or ornamentally if not

warranted, because the expression may be detrimental to the

service career of-the person getting acquittal. When the trial

court comes to the finding that the prosecution totally fails to

prove the charge, then the user of the expression 'benefit of

doubt' in acquitting the accused is improper and illegal. The

present case comes within this category.”

9. In the present case also, the prosecution has

failed to prove the case against Roshan Lal as per the

evidence discussed by the learned Single Judge.

10. In criminal cases the charges are to be proved

beyond reasonable doubt. The expression “beyond

reasonable doubt” has not been correctly appreciated by

the Tribunal while dismissing the original application.

11. Learned Single Judge of the Allahabad High

Court in Sita Ram Dixit vs Divisional Commissioner,

Allahabad Division, 1991 Law Suit (All) 322 has held

that there is a distinction between the words “benefit of

doubt” and “establishment of guilt beyond reasonable

doubt”.

12. Roshan Lal has been acquitted and the words

“the prosecution has failed to prove beyond reasonable

doubt” in the judgment of this Court has been taken by

::: Downloaded on - 15/10/2022 20:00:24 :::CIS

High Court of H.P. 9

the Tribunal as Roshan Lal has been given benefit of

doubt. The exception given in para 16.32 (2) iv) of the

Handbook on Personnel Matter not to grant benefit and

restricting the same would be applicable in those cases

where the person has been given benefit of doubt etc.

13. Their Lordships of the Hon’ble Supreme

Court in Bank of India and another vs. Degala

Suryannarayana , (1999) 5 SCC 762 have held that the

sealed cover procedure is adopted when an employee is

due for promotion, increment e tc. but

disciplinary/criminal proceedings are pending against

him and hence the findings as to his entitlement to the

service benefit of promotion, increment etc. are kept in a

sealed cover to be opened after the proceedings in

question are over. Their Lordships have held as under:

“[14] However, the matter as to promotion stands on a

different footing and the judgments of the High Court have to

be sustained. The sealed cover procedure is now a well

established concept in service jurisprudence. The procedu re is

adopted when an employee is due for promotion, increment

etc. but disciplinary/criminal proceedings are pending against

him and hence the findings as to his entitlement to the

service benefit of promotion, increment etc. are kept in a

sealed cover to be opened after the proceedings in question

are over (see Union of India v. K. V. Jankiraman, AIR 1991 SC

2010, 2113 : (1991 AIR SCW 2276 : 1991 Lab IC 2045). As on

1-1-1986 the only proceedings pending against the respondent

::: Downloaded on - 15/10/2022 20:00:24 :::CIS

High Court of H.P. 10

were the criminal proceedings which ended into acquittal of

the respondent wiping out with retrospective effect the

adverse consequences, if any, flowing from the pendency

thereof. The departmental enquiry proceedings were initiated

with the delivery of the charge -sheet on 3-12-1991. In the

year 1986-87 when the respondent became due for promotion

and when the promotion committee held its proceedings,

there were no departmental enquiry proceedings pending

against the respondent. The sealed cover procedure could not

have been resorted to nor could the promotion in the year

1986-87 withheld for the D. E. proceedings initiated at the fag

end of the year 1991. The High Court was therefore right in

directing the promotion to be given effect to which the

respondent was found entitled as on 1-1-1986. In the facts and

circumstances of the case, the order of punishment made in

the year 1995 cannot deprive the respondent of the benefit of

the promotion earned on 1-1-1986.”

14. The criminal proceedings launched against

Roshan Lal ended in acquitta l wiping out the

retrospective effect of the adverse consequences.

15. There is no material placed on record of this

case that after the acquittal of Roshan Lal any

departmental proceedings were initiated against him.

Moreover, this power to initiate disciplinary proceedings

after the acquittal has to be exercised equitably and

reasonably.

16. Their Lordships of the Hon’ble Supreme

Court in Deputy Inspector General of Police and

another vs. S. Samuthiram, (2013) 1 SCC 598 have

::: Downloaded on - 15/10/2022 20:00:24 :::CIS

High Court of H.P. 11

dealt with expression “honourable acquittal”. Their

Lordships have held that the expressions “honourable

acquittal”, “acquitted of blame”, “fully exonerated” are

unknown to the Code of Criminal Procedure or the Penal

Code, which are coined by judicial pronouncements. It

is difficult to define precisely what is meant by the

expression “honourably acquitted”. When the accused is

acquitted after full consideration of prosecution evidence

and that the prosecution had miserably failed to prove

the charges levelled against the accused, it can possibly

be said that the accused was honourably acquitted.

Their Lordships have also explained that there may be a

case where a person is acquitted for technical reasons or

the prosecution giving up other witnesses since few of

the other witnesses turned hostile. Their Lordships have

held as under:

[24] The meaning of the expression 'honourable acquittal'

came up for consideration before this Court in Management of

Reserve Bank of India, New Delhi v. Bhopal Singh Panchal,

1994 1 SCC 541. In that ca se, this Court has considered the

impact of Regulation 46(4) dealing with honourable acquittal

by a criminal court on the disciplinary proceedings. In that

context, this Court held that the mere acquittal does not

entitle an employee to reinstatement in service, the acquittal,

it was held, has to be honourable. The expressions 'honourable

acquittal', 'acquitted of blame', 'fully exonerated' are unknown

::: Downloaded on - 15/10/2022 20:00:24 :::CIS

High Court of H.P. 12

to the Code of Criminal Procedure or the Penal Code, which

are coined by judicial pronouncements. It is difficult to define

precisely what is meant by the expression 'honourably

acquitted'. When the accused is acquitted after full

consideration of prosecution evidence and that the

prosecution had miserably failed to prove the charges levelled

against the accused, it can possibly be said that the accused

was honourably acquitted.

[25] In R.P. Kapoor v. Union of India, 1964 AIR(SC) 787, it was

held even in the case of acquittal, departmental proceedings

may follow where the acquittal is other than honourable. In

State of Assam and another v. Raghava Rajgopalachari,1972

SLR 45, this Court quoted with approval the views expressed

by Lord Williams, J. in 1934 61 ILR(Cal) 168 which is as

follows:

"The expression "honourably acquitted" is one which is

unknown to court of justice. Apparently it is a form of order

used in courts martial and other extra judicial tribunals. We

said in our judgment that we accepted the explanation given

by the appellant believed it to be true and considered that it

ought to have been accept ed by the Government authorities

and by the magistrate. Further, we decided that the appellant

had not misappropriated the monies referred to in the charge.

It is thus clear that the effect of our judgment was that the

appellant was acquitted as fully and completely as it was

possible for him to be acquitted. Presumably, this is

equivalent to what Government authorities term 'honourably

acquitted'".

[26] As we have already indicated, in the absence of any

provision in the service rule for reinstatement, if an employee

is honourably acquitted by a Criminal Court, no right is

conferred on the employee to claim any benefit including

reinstatement. Reason is that the standard of proof required

for holding a person guilty by a criminal court and the enquiry

conducted by way of disciplinary proceeding is entirely

different. In a criminal case, the onus of establishing the guilt

of the accused is on the prosecution and if it fails to establish

the guilt beyond reasonable doubt, the accused is assumed to

::: Downloaded on - 15/10/2022 20:00:24 :::CIS

High Court of H.P. 13

be innocent. It is settled law that the strict burden of proof

required to establish guilt in a criminal court is not required

in a disciplinary proceedings and preponderance of

probabilities is sufficient. There may be cases where a person

is acquitted for technical reasons or the prosecution giving up

other witnesses since few of the other witnesses turned

hostile etc. In the case on hand the prosecution did not take

steps to examine many of the crucial witnesses on the ground

that the complainant and his wife turned hostile. The court,

therefore, acquitted the accused giving the benefit of doubt.

We are not prepared to say in the instant case, the respondent

was honourably acquitted by the criminal court and even if it

is so, he is not entitled to claim reinstatement since the Tamil

Nadu Service Rules do not provide so.”

17. We have gone through the judgment rendered

by the learned Single Judge. The Court has appraised

the entire evidence led by the prosecution and has

categorically held that the prosecution has failed to prove

the case against the accused beyond reasonable doubt.

Thus, the acquittal of the accused was “honourable

acquittal”. It is not a case where accused Roshan Lal was

acquitted for technical reasons, but he was acquitted

after consideration of entire evidence led by the

prosecution.

18. Now, as far as applicability of “no work no

pay’ is concerned, this question is no more res integra

in view of the law laid down by their Lordships of the

::: Downloaded on - 15/10/2022 20:00:24 :::CIS

High Court of H.P. 14

Hon’ble Supreme Court in Union of India and others

vs. K.V. Jankiraman and others , (1991) 4 SCC 109.

Their Lordships have held as under:

“25. We are not much impressed by the contentions

advanced on behalf of the authorities. The normal rule of "no

work no pay" is not applicable to cases such as the present

one where the employee although he is willing to work is kept

away from work by the authorities for no fault of his. This is

not a case where the employee remains away from work for his

own reasons, although the work is offered to him. It is for this

reason that F.R. 17(1) will also be inapplicable to such cases.

26. We are, therefore, broadly in agreement with the

finding of the Tribunal that when an employee is completely

exonerated meaning thereby that he is not found blameworthy

in the least and is not visite d with the penalty even of

censure, he has to be given the benefit of the salary of the

higher post along with the other benefits from the date on

which he would have normally been promoted but for the

disciplinary/ criminal proceedings. However, there may be

cases where the proceedings, whether disciplinary or criminal,

are, for example, delayed at the instance of the employee or

the clearance in the disciplinary proceedings or acquittal in

the criminal proceedings is with benefit of doubt or on

account of non-availability of evidence due to the acts

attributable to the employee etc. In such circumstances, the

concerned authorities must be vested with the power to

decide whether the employee at all deserves any salary for the

intervening period and if he do es the extent to which he

deserves it. Life being complex, it is not possible to anticipate

and enumerate exhaustively all the circumstances under

which such consideration may become necessary. To ignore,

however, such circumstances when they exist and lay down an

inflexible rule that in every case when an employee is

exonerated from disciplinary/ criminal proceedings he should

be entitled to all salary for the intervening period is to

undermine discipline in the, administration and jeopardise

::: Downloaded on - 15/10/2022 20:00:24 :::CIS

High Court of H.P. 15

public interests. We are, therefore, unable to agree with the

Tribunal that to deny the salary to an employee would in all

circumstances be illegal. While, therefore, we do not approve

of the said last sentence in the first sub-paragraph after clause

(iii) of paragraph 3 of the said Memorandum, viz., "but no

arrears of pay shall be payable to him for the period of

notional promotion preceding the date of actual promotion",

we direct that in place of the said sentence the following

sentence be read in the Memorandum:

"However, whether the officer concerned will be

entitled to any arrears of pay for the period of notional

promotion preceding the date of actual promotion, and if so to

what extent will be decided by the concerned authority by

taking into consideration all the facts and circumstances of

the disciplinary proceeding/criminal prosecution. Where the

authority denies arrears of salary or part of it, it will record its

reasons for doing so."

19. The Departmental Promotion Committee in

the instant case was held in the year 1988. He was

acquitted on 5.12.1997 by this Court. However, despite

that he was promoted on 21.7.2000 on notional basis.

He was always ready and willing to discharge the duties

of Ranger, but has been prevented for the simple reason

that the recommendations made by the Departmental

Promotion Committee were kept in sealed cover and

these were opened only on 21.7.2000. Thus, the

principles of “no work no pay” would not be applicable.

It is reiterated that Roshan Lal has been acquitted by

this Court after perusal of entire evidence and not on

::: Downloaded on - 15/10/2022 20:00:24 :::CIS

High Court of H.P. 16

any technical defects. He was required to be promoted

with effect from due date, i.e. 8.2.1989 with monetary

benefits.

20. Accordingly, in view of the analysis and

discussion made hereinabove, writ petition is allowed.

The judgment dated 20.7.2007 rendered by the Tribunal

in O.A. (M) No. 331/2001 is set aside. Letter dated

21.7.2000, is also quashed and set aside by applying the

principle of severability and the legal heirs of Roshan Lal

would be entitled to all the consequential monetary

benefits of the promotional post of Ranger with effect

from 8.2.1989 with interest @ 9% per annum.

Respondents are also directed to work out the

pensionary benefits as per actual monetary benefits

released to the legal heirs w.e.f. 8.2.1989. The amount

shall carry out interest @ 12% per annum. Needful be

done within a period of six weeks from today. Pending

application(s), if any, also stands disposed of. No costs.

(Justice Rajiv Sharma),

Judge.

(Justice P.S. Rana),

Judge.

7.1.2016*awasthi*

::: Downloaded on - 15/10/2022 20:00:24 :::CIS