- (1.) The matter in issue before the learned Single Judge was whether a dismissal order confirmed up to revision by the Director General of Police, Haryana arising out of departmental proceedings, can be recalled, varied, modified or rescinded for reason of subsequent acquittal.
(2.) We do not deem it expedient to narrate entire factual matrix, suffice it to say, at the relevant moment in time, the appellant was employed as Exemptee Assistant Sub Inspector of Police and posted at Hawai Patti as In-charge, Airstrip Guard, Kalvehri. Constable ("Ct.") Ashok Kumar was working under him at the Airbase. Pursuant to a complaint made by Ct. Ashok Kumar, FIR No.93 dated 22.05.2007 under Sections 323, 377, 511, Indian Penal Code, was registered against the appellant at Police Station Kunjpura. Complainant Ashok Kumar had stated that on 21.05.2007, when he was deputed as Guard In-charge at the Airbase along with the appellant, the appellant after consuming alcohol in the evening hours offered him drinks, which he refused. And at about 10.30 p.m., at night, the appellant forced himself upon him and took his trousers and underwear off and attempted to have unnatural sex with him. When the complainant objected, he was manhandled and bitten on thumb and, thereafter, the assailant fled from the spot. Departmental proceedings were initiated against the appellant and he was served with a charge-sheet on the aforesaid allegations, on 29.06.2007. He was purported to have displayed gross negligence and indiscipline which brought disrepute to the department. The appellant duly participated in the departmental inquiry and he was afforded due opportunity to lead evidence in defence and cross examine the witnesses produced against him. The Inquiry Officer found the appellant guilty of the charges levelled against him. After soliciting his response to the show cause notice, vide order dated 29.11.2007 (Annexure P-6 with the writ petition) the appellant was dismissed from service. His appeal to the Inspector General of Police, Rohtak Range, Rohtak was rejected on 20.12.2007. Likewise, the revision preferred to the Director General of Police, Haryana was also rejected vide order dated 20.08.2008. As he was also being tried for a criminal offence, eventually he was acquitted by the Additional Chief Judicial Magistrate, Karnal vide judgment dated 20.12.2012. Post acquittal, the appellant is purported to have made a representation dated 31.01.2013, praying for reinstatement in terms of his acquittal by the trial Court. It was maintained that since the representation remained undecided, he approached this Court.
(3.) Learned Single Judge, on an analysis of the matter in issue and material on record, was of the view that the cause of action accrued to the appellant on 20.08.2008, with the dismissal of the revision petition by the Director General of Police, Haryana. It was observed that even if the order of dismissal, that was being assailed in the present case, was brought into question vide a civil suit, the same would have been time barred by 20.08.2011. Resultantly, if a suit could be barred against a cause of action, then normally even a writ would not lie unless this Court in its extra ordinary writ jurisdiction found serious infractions or breach of fundamental rights which may require instant intervention. Thus, it was observed that the short issue to be considered in the present lis was as to whether a judgment of acquittal could be said to have extended a right/cause of action to the appellant once again to question his dismissal. And was answered in these terms:- "I do not think it would be correct for this Court to hold that a judgment of acquittal by a Magistrate exercising criminal jurisdiction based on an incident which has earlier been traversed in a departmental proceedings and penalty inflicted would give rise to a fresh cause of action against an adverse administrative order having attained finality or would be enforceable in a court of law against the penalty of say, dismissal from service, notwithstanding the standard of proof being different of the two.";