IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.6666 of 2002 BRIJ NANDAN PRASAD @ PEYAREY Mahto @ Ramesh Chandra Sinha, son of late Lala Prasad, resident of village- Dhobi Bigha, P.O. and P.S. Asthawan, District- Nalanda. … Petitioner. Versus 1. THE STATE OF BIHAR 2. The Director, Primary Education, New Secretariat, Bihar, Patna. 3. The District Magistrate-cum-Chairman, District Education Establishment Committee, Nalanda. 4. The District Superintendent of Education, Nalanda. … Respondents. ----------- 3. 14.09.2010 Having heard counsel for the petitioner and counsel for the State in respect of the following prayer of the petitioner made in this writ application; “1. That this writ application is directed for quashing the order contained in letter no. 127 dated 21.1.99 by which claim of the petitioner for reinstatement has been rejected and the order contained in Memo N o. 92 dated 2.2.92 including the order contained in Memo No. 1781 dated 14.5.2002 by which a seal has been given to the above said order and to direct the respondent to reinstate him treating him in continuous service with effect from 6.3.1991.” this Court is of the firm view that once the order of dismissal from service in a departmental proceeding was passed on 2.2.1992 and the said order of punishment was also affirmed by a Division Bench of this Court by an order dated 14.5.1993 in CWJC No. 2095 of 2 1993 holding inter alia; “… In this case by order dated 10.1.1992 as contained in Annexure-7, the services of the petitioner has been terminated, since in enquiry it was found that Ramesh Chandra Sinha who claims to be petitioner in the present case had in fact died on 9.6.1973 and his brother Brajnandan Prasad had been working in his place on misrepresentation that the said Ramesh Chandra Sinha is still alive. The writ application is accordingly dismissed.” there would be no question of at least tinkling with the order of punishment dated 2.2.1992 only because subsequently in the criminal case filed against the petitioner an order of acquittal was passed on 25.6.1996. Moreover, from perusal of the judgment of acquittal dated 25.6.1996, it is absolutely clear that not only the petitioner was given a benefit of doubt but was also acquitted only because the two most relevant witnesses, namely, informant, District Education Officer and the Investigating Officer had not been examined as is clear from reading of following extract of judgment; “15%& bl ekeys esa vfHk;kstu us bl ekeys ds lwpd ftyk f'k{kk inkf/kdkjh dks lk{; esa izLrqr ugha fd;k gS vkSj u gh muds }kjk fd;s x;s izFke lwpuk izfrosnu dks lkfor fd;k gSA bl ekeys esa vuqla/kkudrkZ dks Hkh izLrqr ugha fd;k x;k gSA tcfd bu nksuksa lk{kh;ksa dk lk{; gksuk bl ekeys esa 3 vfrvko';d Fkk vfHk;kstu ds ekeys dks lkfor djus ds fy,A 16- i=koyh ij miyC/k leLr rF;ksa ,oa lk{;ksa ds foLr`r foospu ds i'pkr eSa bl fu"d"kZ ij igwWpk gwW fd vfHk;kstu vius ekeys dks ;qDrh ;qDr <ax ls rFkk lUnsg ls ijs fl) ugha dj ik;k gSA vr% ,slh fLFkfr esa eSa bl ekeys ds vfHk;qDr c`tuUnu izlkn mQZ jes'k pUnz flUgk dks Hkkjrh; n.Mfo/kku dh /kkjk 420@467@468@471@170@120ch ds vkjksi ls lUnsg dk ykHk nsrs gq, nks"keqDr djrk gWw pwWfd vfHk;qDr tekur ij gSa vr% mls tekur ds nkf;Ro ls Hkh eqDr djrk gwWA” The submission of learned counsel for the petitioner that since this Court by order dated 4.5.2000 in CWJC No. 1379 of 1999 had given opportunity to the petitioner to file an application before the Competent Authority for recall of the order of dismissal dated 2.2.1992, the consequential impugned order passed on 14.5.2002 is unsustainable as the observation made in the said order have not been correctly applied. As a matter of fact from the reading of the impugned order dated 14.5.2002 (Annexure-7), it would be clear that a detail consideration was made to the entire materials on record and the petitioner was given a further opportunity by way of second show-cause notice dated 9.2.2002. The petitioner had again filed a reply on 22.2.2002 whereafter the impugned order with the detailed reasons has been 4 passed rejecting the claim of the petitioner for his reinstatement. While recording such reasons the competent authority in the impugned order had taken full care of the possible plea of the petitioner as with regard to his subsequent acquittal in the criminal case but has also gone into the other materials available on record to find out as to how the petitioner had made an attempt to impersonate the deceased employee Ramesh Chandra Sinha and was trying to get the benefit of employment in place of deceased brother Ramesh Chandra Sinha. The order of dismissal of the petitioner from service dated 2.2.1992 having become final after dismissal of the writ petition, CWJC No. 2095 of 1993, the petitioner could not have been taken back in service only because he was subsequently acquitted of criminal charge and that too by giving benefit of doubt which cannot be equated with clean acquittal. This aspect of the matter stands also settled in the judgment of Apex Court in the case of Union of India & another vs. Bihari Lal Sidhana, reported in (1997) 4 SCC 385 and in the case of Noida Entrepreneurs Association vs. Noida and others, 5 reported in (2007) 10 SCC 385. In fact, there is a conscious judicial pronouncement on this aspect that even when a judgment of acquittal on the same criminal charge, on which earlier a departmental proceeding had ended in punishment from removal of service, the same cannot be reviewed for reinstating the petitioner. Presently herein the situation is even worse inasmuch as the petitioner had not been clean acquittal from the criminal court. Additionally, this Court would find that the petitioner was given full opportunity even after the matter was remitted back by this Court inasmuch as the petitioner was given a show-cause notice as also the reasons weighing upon the authority for not reinstating him in service and the petitioner had also filed his detail exhaustive reply as is clear from Annexure- D to the counter affidavit. In that view of the matter, there is also no error in the decision making process before passing of the impugned order. The reliance placed by the learned counsel for the petitioner on a judgment of this Court in the case of Braj Kishore Singh vs. State of Bihar & Ors., reported 6 in 2000(4) PLJR 411 is equally misplaced inasmuch as the challenge in the aforementioned case was to an order of punishment in the first round and in that context it was held that if the Enquiry Officer had exonerated the petitioner and Disciplinary Authority had wanted to differ with the such findings, he had to give an opportunity to the delinquent petitioner. In fact the reasons which had weighed upon the Disciplinary Authority in the case of Braj Kishore Singh (Supra) while terminating the petitioner of that case from service was that the same criminal charge had led to his acquittal whereafter the departmental proceeding was initiated by framing charge on 30th September 1997 in which even when the Enquiry Officer had exonerated the delinquent Braj Kishore Singh and yet an order of punishment was passed against the delinquent-Braj Kishore Singh, by the Disciplinary Authority by differing with the Enquiry Officer. Therefore whatever was said in that context by referring to judgment of Apex Court in the case of M. Paul Anthony vs. Bharat Gold Mines Ltd, reported in (1999) 3 SCC 679 can not be made applicable in the facts of the present case where the order of dismissal in a departmental proceeding had 7 already been passed in the year 1992 which also stood affirmed by the Division Bench of this Court in the year 1993 whereafter the judgment of acquittal by way of benefit of doubt was delivered in the year 1996. Thus, this Court must hold that this writ application, virtually questioning the order of punishment dated 2.2.1992 which has already stood affirmed by Division Bench of this Court in the order dated 14.5.1993 is wholly misconceived and is, accordingly, dismissed. kanchan (Mihir Kumar Jha, J.)