A. Nazer Babu v. Director Institute of Human Resources Development (IHRD) & Principal, College of Applied Science, Institute of Human Resources Development, Mavelikkara

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE AMIT RAWAL** **THURSDAY, THE 21[ST] DAY OF OCTOBER 2021 / 29TH ASWINA, 1943** ## **WP(C) NO. 22810 OF 2009** ## **PETITIONER/S:** A.NAZER BABU AGED 37 YEARS JUNIOR OFFICE ASSISTANT, IHRD COLLEGE OF ENGINEERING, ADOOR. BY ADVS. SRI.B.RAGUNATHAN SRI.G.BAIJU SRI.V.V.MATHEW SRI.R.SRINATH SRI.J.VIMAL ## **RESPONDENT/S:** 1 DIRECTOR INSTITUTE OF HUMAN RESOURCES DEVELOPMENT, PRAJOE TOWERS,, VAZHUTHACAUD, THIRUVANANTHAPURAM 695 014. 2 PRINCIPAL, COLLEGE OF APPLIED SCIENCE, INSTITUTE OF HUMAN RESOURCES, DEVELOPMENT, MAVELIKARA -690 101. BY ADVS. SRI.DEEPU THANKAN, SC, IHRD SRI.N.N.SUGUNAPALAN SR. SRI.S.SUJIN, SC, IHRD THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 28.09.2021, THE COURT ON 21.10.2021 DELIVERED THE FOLLOWING: **WP(C) NO. 22810 OF 2009** **2** ## **JUDGMENT** Petitioner while working as Junior Office Assistant in the College of Applied Science under IHRD was placed under suspension by order dated 6.3.2000 of the 1[st] respondent, Director IHRD. On 30.8.2000 was served with memo of charges Ext.P1, which were duly replied on 4.6.2001. A criminal complaint on the same charges was lodged by the 2[nd] respondent ie., Crime No.228/2000, which was tried by the Judicial I Class Magistrate's Court, Mavelikkara as CC No.1024/2002 under Sections 409, 420, 468, 471 IPC. As per the judgment dated 31.1.2006, petitioner was acquitted as per the provisions of Section 248(1) of Cr.P.C. 2. Learned counsel for the petitioner submitted that when there was delay to reinstate him in service, the petitioner approached this Court in W.P.(C) No.14122 of 2006. This Court vide judgment dated 11.5.2006 directed the 1[st] respondent to take a decision on representation within a period of two weeks. When there was indefinite delay in completing the departmental proceedings as assured by the 1[st] respondent and further he was kept out of the service unnecessarily, the petitioner was constrained to approach **WP(C) NO. 22810 OF 2009** **3** this Court again in W.P.(C) No.33284 of 2006. This Court vide judgment dated 2.4.2007 Ext.P8 ordered for reinstatement of the petitioner with a liberty to the respondents to continue departmental proceedings. Petitioner thereafter vide Ext.P10 dated 13.3.2008 was called upon to file a reply with regard to the departmental enquiry as the records from the police was received by the Department. Request was made to supply the certain documents and also drop the charges on the premise that once there was an acquittal on the same charges, the proceeding cannot continue. It is in that background, the impugned order dated 13.7.2009, Ext.P24 has been passed. 3. Learned counsel for the petitioner submitted that in the judgment of the Supreme Court in _**Bhaskar Reddy v. Superintendent of Police (2015 (2) SCC 365**_ it was held the criminal proceedings as well as disciplinary proceedings initiated on similar charges and if honourably acquitted by criminal court, order of dismissal from service passed in disciplinary proceedings is liable to be set aside. Reliance has also laid to _**Tank v. State of Gujarat (2006 (3) KLT 514 (SC)**_ , that the departmental proceedings and criminal case based on identical and similar set of facts, results into acquittal on merits amounting to clear exoneration by Court bars disciplinary proceedings. **WP(C) NO. 22810 OF 2009** **4** 4. On the other hand learned counsel for the respondent submitted that the aforementioned judgments would not come to the rescue of the petitioners, for, this Court while ordering the reinstatement in the judgment granted liberty to continue departmental proceedings but departmental action could not be proceeded as the records were already taken by the police to prosecute before the Criminal Court. In most of the cases, the petitioner had never objected to the departmental proceedings but insisted for documents and an expeditious disposal. Later on, raised the plea of non continuation of the departmental proceedings and urges this Court for dismissal of the writ petition. 5. I have heard the learned counsel for the parties and appraised the paper book and of the view that there is no force and merit in the submissions. It would be apt to reproduce findings of this Court permitting the department to continue with the enquiry in the order dated 2.4.2007, Ext.P8. _Ext.P1 dated 06/03/2000 is the order placing the petitioner under suspension. Petitioner was served Ext.P2 memo of charges. By Ext.P4 judgment the Judicial First Class Magistrate, Mavelikkara has proceeded to acquit the petitioner of the charges levelled against him under section 248 (1) of the Code of Criminal Procedure. Petitioner filed Ext.P5 requesting to reinstate him in service immediately. This court directed the same to be considered by Ext.P6. By Ext.P8 order the Director took note of the fact that the charges against the petitioner is_ **WP(C) NO. 22810 OF 2009** **5** _that of the same charges framed by the police before the learned Magistrate. But the respondents could not proceed with the departmental action because the records were taken by the police to proceed with the case before the criminal court. It is stated that the records are available and therefore it has been decided to proceed with the departmental proceedings and complete the enquiry within two months. It is also stated that the acquittal was on the basis of the failure to conduct proper investigation and to adduce proper and adequate evidence before the Magistrate. Ext.P8 order is dated23/08/2006. Petitioner challenges Exts.P1, P2 and P8 and seeks a direction to reinstate him in service. 2. Counter affidavit is filed by respondents, where in it is inter-alia stated that petitioner was proceeded against for misappropriation of funds and suspicious payment etc. Essentially the same stand is taken as in Ext.P8. 3. I heard learned counsel for th petitioner and learned senior counsel Sri.N.N.Sugunapalan appearing for respondents also._ _4. Petitioner was suspended nearly 7 years ago. He stands acquitted under Section 248(1)Cr.P.C. vide Ext.P4 judgment. In fact, the law requires that there should be a review of the WPCNo.33284/06._ _suspension after a period of one year. In such circumstances, particularly in view of the fact that the charges for which petitioner is proceeded with the departmental proceedings is same as he was proceeded in the criminal court, it may not be proper to keep the petitioner under suspension. Accordingly, Ext.P1 and Ext.P8 to the extent that petitioner is not granted the relief of immediate reinstatement are quashed. It is however made clear that it is open to the respondents to proceed to bring the departmental proceedings commenced against the petitioner to its logical conclusion and take action based on the findings in the enquiry. Petitioner shall be reinstated in service within a period of two weeks from today._ It is on account of that findings, vide communication dated 13.3.2008, Ext.P10 petitioner was intimated for perusal of the records for continuation of the enquiry. The fault cannot be attributed to the **WP(C) NO. 22810 OF 2009** **6** respondents in not completing the enquiry after lapse of many years, apparently be violation of Article 21 of the Constitution of India but till the passing of the judgment by the criminal court on account of improper investigation particularly, when further proceedings in the enquiry stands stayed by this Court as long as on 11[th] August 2009 and confirmed on 7[th] October 2009. Respondents cannot be blamed for delay. I would be failing in duty in not reproducing the operative part of the order of the Criminal Court where the prosecution was attributed in not conducting the proper investigation. _15. The deposition of the investigating officers reveal that no proper investigation was conducted by them because none of the so called students who had handed over the receipts to the principal were cited as witness._ _16. From the available evidence it cannot be held that the accused had committed any of the offence as alleged by the prosecution. Therefore he is found not guilty of the offences alleged against the accused. 17. In the result, the accused is acquitted u/s 248(1) Cr.P.C._ There is no denial to the ratio decidendi culled out in the judgment cited but it is yet to be proved the departmental proceedings regarding the misappropriation. There would have been a force in the argument had the entire material been placed on record and after thorough examination, trial court would have acquitted the petitioner. It is in the absence of material, the burden **WP(C) NO. 22810 OF 2009** **7** shifts upon the department to prove the allegation on the memo of charges by examining the records, which has been received from the custody of the police. Since the matter is pending quite long, I deem it appropriate to reject the contention of the petitioner for quashing Ext.P24 and dismiss the writ petition directing the respondent department to expedite the enquiry within a period of 8 (eight) months from the date of receipt of a certified copy of this judgment. Sd/- ## **sab** **AMIT RAWAL** **JUDGE** **WP(C) NO. 22810 OF 2009** **8** APPENDIX OF WP(C) 22810/2009 PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF THE MEMO OF CHARGES DATED 30.8.2000 ALONG WITH THE STATEMENT OF ALLEGATIONS. EXHIBIT P2 TRUE COPY OF THE WRITTEN STATEMENT OF DEFENCE DATED 4.6.2001 EXHIBIT P3 TRUE COPY OF THE JUDGMENT DATED 31.1.23006 IN CC.NO.1024/2002 EXHIBIT P4 TRUE COPY OF THE REPRESENTATION DATED 11.5.2006 EXHIBIT P5 TRUE COPY OF THE JUDGMENT DATED 22.6.2006 IN W.P[C]NO. 14122 OF 2006-F EXHIBIT P6 TRUE COPY OF THE REPRESENTATION DATED 14.7.2006 - EXHIBIT P7 TRUE COPY OF THE LETTER DATED 23.8.2006 OF THE 1ST RESPONDENT EXHIBIT P8 TRUE COPY OF THE JUDGMENT DATED 02.04.2007 IN W.P[C]NO.33284 OF 2006-K - EXHIBIT P9 TRUE COPY OF THE ORDER DATED 7.5.2007 OF THE 1ST RESPONDENT - EXHIBIT P10 TRUE COPY OF THE LETTER DATD 13.3.2008 OF THE 1ST RESPONDENT EXHIBIT P11 TRUE COPY OF THE LETTER DATED 11.6.2008 OF THE 1ST RESPONDENT - EXHIBIT P12 TRUE COPY OF THE LETTER DATED 18.6.2008 SUBMITTED TO THE 2ND RESPONDENT EXHIBIT P13 TRUE COPY OF THE LETTER DATED 15.7.2008 TO THE 2ND RESPONDENT EXHIBIT P14 TRUE COPY OF THE LETTER DATED 17.7.2008 OF THE 1ST RESPONDENT EXHIBIT P15 TRUE COPY OF THE REPRESENTATION DATED 23.7.2008 TO THE 1ST RESPONDENT **9** ## **WP(C) NO. 22810 OF 2009** EXHIBIT P16 TRUE COPY OF THE LETTER DATED 26.8.2008 OF THE 1ST RESPONDENT TRUE COPY OF THE REPRESENTATION DATED 13.9.2008 TRUE COPY OF THE LETTER DATED 4.11.2008 EXHIBIT P17 TRUE COPY OF THE REPRESENTATION DATED 13.9.2008 EXHIBIT P18 TRUE COPY OF THE LETTER DATED 4.11.2008 EXHIBIT P19 TRUE COPY OF THE REPRESENTATION DATED 29.11.2008 EXHIBIT P20 TRUE COPY OF THE LETTER DATED 5.1.2009 EXHIBIT P21 TRUE COPY OF THE LETTER DATED 24.1.2009 EXHIBIT P22 TRUE COPY OF THE LETTER DATED 13.5.2009 EXHIBIT P23 TRUE COPY OF THE REPRESENTATION DATED 3.06.2009 EXHIBIT P24 TRUE COPY OF THE ORDER DATED 13.7.2009 OF THE 1ST RESPONDENT RESPONDENT EXHIBITS EXHIBIT R1 TRUE COPY OF THE REPRESENTATION DTD 14.3.2000 EXHIBIT R1 TRUE COPY OF THE LETTER NO.E/174/97/CAS DTD 9.7.2008 ISSUED BY THE 2ND RESPONDENT TO THE 1ST RESPONDENT EXHIBIT R1 A TRUE COPIES OF THE ORDERS DTD 13.07.2009 ISSUED TO THE PETITIONER AND OTHER CO-DELINQUENTS