IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP(T) No.: 7599 of 2008. Reserved on: 29.05.2009. Decided on: 19.06.2009. Charan Dass. … … Petitioner. Versus State of H.P. and Others. … … Respondents. Coram: The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting?1 Yes. For the petitioner: Ms. Ranjana Parmar, Advocate. For the Respondents: Mr. R.K. Sharma, Senior Additional Advocate General with Mr. Rajinder Dogra, Additional Advocate General and Mr. Ramesh Thakur, Assistant Advocate General for respondents No.1 and 2. Rajiv Sharma, Judge: The petitioner was appointed as Forest Guard in the respondent- department. He was put under suspension on 18th July, 1983. He was reinstated on April 1, 1985. However, he was again suspended after the initiation of criminal proceedings against him on 31st March, 1986. He was eligible for consideration for promotion to the post of Deputy Whether reporters of local papers may be allowed to see the judgment? Yes. - 2 - Ranger. His case was considered by the Departmental Promotion Committee for promotion to the post of Deputy Ranger, however, the recommendations made by the Committee were kept in a sealed cover as per Annexure A-1, dated 14th November, 1983. He was promoted to the post of Deputy Ranger on ad hoc basis on 16th January, 1989. He was acquitted by the Special Judge (Forests) on 31.7.1997. However, despite his acquittal, his retiral benefits including gratuity and pension were not released to him. He made representation to the Principal Chief Conservator of Forests on 25.11.1997 after his acquittal by the Special Court (Forests). He had prayed for opening of sealed cover and also for release of the retiral benefits. He reiterated his prayer in March, 2000. His gratuity was released in the month of June, 2000, however, he was not paid any interest on the same. The case of the petitioner in nutshell is that once he has been acquitted by the Special Judge (Forests) on 31.7.1997, the sealed cover was required to be opened and he was to be promoted to the post of Deputy Ranger from the date his juniors were promoted as per Annexure A-1, dated 14.11.1983. It is also averred that immediately after the acquittal of the petitioner on 31.7.1997, his retiral benefits were to be paid to him. The case of the State in nutshell is that though the petitioner had been acquitted on 31.7.1997, however, an appeal has been preferred against this judgment of acquittal in this Court. Ms. Ranjana Parmar has strenuously argued that after the acquittal of her client on 31.7.1997, it was imperative upon the respondents to open the sealed cover and to consider the case of the petitioner for promotion to the post of Deputy Ranger from the date his - 3 - juniors were promoted, i.e. 14.11.1983. She then contended that the respondents were required to release the retiral benefits to the petitioner with interest from due date. Mr. R.K. Sharma, learned Senior Additional Advocate General on the basis of reply filed by the State has argued that neither the sealed cover can be opened nor the retiral benefits can be released to the petitioner till the appeal is pending in this Court against the judgment of acquittal. I have heard the learned counsel for the parties and gone through the pleadings carefully. The criminal proceedings were initiated against the petitioner. He was tried by the Special Judge (Forests). He was acquitted on 31.7.1997. He has superannuated from Government service. It is well settled by now as per the law laid down by their Lordships of the Hon’ble Supreme Court in Union of India and others versus K.V. Jankiraman and others (1991) 4 SCC 109 that sealed cover procedure is to be adopted in case departmental or criminal proceedings are pending against a person. However, immediately after the departmental or criminal proceedings are concluded and the person is exonerated or discharged or acquitted, the sealed cover should be opened and the person should be given promotion from due date. In the present case, immediately after the acquittal of the petitioner, the sealed cover was required to be opened by the respondent. The petitioner’s case for promotion to the post of Deputy Ranger was considered by the Departmental Promotion Committee, however, the recommendations were kept in sealed cover. The filing of appeal cannot however be - 4 - regarded as continuation of the trial. The petitioner had been acquitted by the trial Court. A Division Bench of Gujarat High Court in State and Another versus B.C. Dwivedi, 1983 (2) Gujarat Law Reporter 1315 has held that the trial concludes with the judgment of acquittal or conviction. Their Lordships have further held that merely because the acquittal appeal has been preferred, it cannot be said that the trial continues. Their Lordships have held as under (para 2):- “-------- The learned Assistant Government Pleader, appearing on behalf of the State, urged that inasmuch as the State Government has preferred an appeal from the judgment and order of the Special Judge, Surendranagar acquitting the respondent- petitioner, the power of suspension under Rule 5 1(b) is still available to the authority concerned. We cannot agree with the learned Assistant Government Pleader since the concept of trial in criminal law has a well recognised connotation and the trial would mean all proceedings including sentence (vide : B.R. Lawrence v. Emperor AIR 1933 PC 218). In other words, the trial concludes with the judgment of acquittal or conviction (vide : The State v. Naramuddin Ahmed and Anr. AIR 1955 Assam 214 and Joti Prasad v. State AIR 1951 Allahabad 549). Merely because the acquittal appeal has been preferred, it cannot be said that the trial continues. --------“ This question had also been decided by a Division Bench of this Court in Surinder Kumar versus State of Himachal Pradesh and another, 1984 Sim. L.C. 254. Their Lordships have held as under (para 12):- - 5 - “It may be recalled in this connection that as a result of the lodgement of the first information, the petitioner was detained in custody and that after investigation, he was put up for trial in two cases before a criminal court. The trial court convicted him but the appellate court acquitted him in both the cases. The orders of acquittal are indubitably under challenge in the High Court. The preferment of acquittal appeals cannot, however, be regarded as the continuance of the trial. The trials have concluded with the judgment of acquittal. [See State v. B.C. Dwivedi, 1983 (2) XXIV GLR 1315]. The initial presumption of innocence must, therefore, be regarded as having been doubly reinforced by orders of acquittal passed in favour of the petitioner. Under such circumstances, the continued operation of the order of suspension as from the date of acquittal cannot be regarded as reasonable, fair and just. Merely because the petitioner was, at one point of time, detained in custody for a period exceeding forty-eight hours, he cannot be kept under suspension perpetually, especially when the allegations on the basis of which he was detained and which ultimately became the subject matter of two trials before the criminal court, are found by a court of competent jurisdiction to have been not established beyond reasonable doubt. Under the circumstances, in our opinion, on a rational and just view of the facts and circumstances of the case, the petitioner is required to be re-instated in service on and with effect from the date of the orders of acquittal. If the acquittal appeals are allowed and the petitioner is convicted, there is nothing to prevent the competent authority from dealing with the petitioner in accordance with law. If, on the other hand, the acquittal appeals fail and a departmental inquiry, if any, is ordered be instituted on the same charges, it would not be fair and - 6 - just and reasonable to suspend the petitioner once again in view of the initial presumption of innocence having been reinforced twice over.” In view of the definitive law laid down by their Lordships in the cases referred to above, the respondents cannot insist that the sealed cover shall not be opened till the decision of the appeal preferred by the State against the judgment of acquittal. Similarly, the respondents cannot withhold the retiral benefits to the petitioner on the ground of pendency of appeal against the judgment of acquittal. It was necessary for the respondents to immediately release the retiral benefits to the petitioner after the acquittal of the petitioner by the Special Judge (Forests) on 31.7.1997. He has made representation whereby he has brought to the notice of the authorities the factum of his acquittal, but despite this the retiral benefits have not been released to the petitioner. Accordingly, in view of the observations made hereinabove, the petition is allowed. The respondents are directed to open the sealed cover within a period of six weeks from today and to consider the case of the petitioner for promotion from the date his juniors were promoted as Deputy Ranger, i.e. 14.11.1983 with all consequential benefits. It is clarified that in view of the law laid down in Union of India and others versus K.V. Jankiraman and others (1991) 4 SCC 109, the principle of “no work no pay” shall not be invoked by the State. The respondents are further directed to release all the retiral benefits to the petitioner within a period of eight weeks from today. This amount shall carry interest at the rate of 12% per annum. The respondents shall also pay to the petitioner interest on the gratuity amount already released as per - 7 - Rule 68 of the Central Civil Services (Pension) Rules, 1972 read with instruction/decision No.2 thereto. There shall, however, be no order as to costs. June 19, 2009. (Rajiv Sharma) (sck). Judge.