Biren Vaishnav, J
1. Heard Ms. Urvi Raval, learned advocate appearing for the appellant.
2. The appeal under Clause 15 of the Letters Patent arises out of an order of the learned Single Judge dated 05.05.2010 by which, the learned Single Judge dismissed the petition.
3. Prayers in the petition which was filed before the learned Single Judge read as under :-
“(A) Your Lordships be pleased to allow and admit this petition;
(B) Your Lordships be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction, directing the respondents to grant promotion in the cadre of senior clerk or pay higher grade scale of Rs. 4000-6000 w.e.f. 01.01.2003 on the basis of above pay revision;
(C) Your Lordships be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction, directing the respondents grant of annual increment from the date of reinstatement within a stipulated period of time;
(D) Your Lordships may be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction, directing the respondents to grant the unpaid subsistence allowance at the rate of revised pay scale within a stipulated period of time.
(E) Your Lordships may be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction, directing the respondents revised salary from date of reinstatement order within a stipulated time.”
4. Ms. Urvi Raval, learned counsel for the appellant would submit that the order impugned in the petition which denied the benefit of subsistence allowance and other benefits on the ground that the State had challenged the order of acquittal before this Court and as the appeal was pending, the benefits could not be granted, was wrong.
4.1. She submitted that the appellant had been acquitted without any qualification. It therefore being a clean acquittal, she was entitled to the benefits as prayed for. In support her submission, she would rely upon the decision of this Court in the case of State v. B.C. Dwivedi reported in 1983 (2) GLR 1315. She would press into service the finding of the Court in the case of B.C. Dwivedi (supra) which indicated that once an employee has been acquitted, mere filing an appeal by the State would not be continuance of trial. In other words, it was her submission that having been acquitted, denial of the benefits only on the ground of the pendency of the State’s appeal is misconceived.
5. Ms. Roshni Patel, learned Assistant Government Pleader would support the order of the learned Single Judge.
6. Having considered the submissions made by the learned counsels for the parties, and though the emphasis has been laid by the learned counsel for the appellant to take us through the order of the criminal court to persuade us to consider the case as that of clean acquittal, reading of the operative part of the judgment would indicate that the appellant was acquitted only on the benefit of doubt. We cannot sit in appeal over the judgment of the trial court in appeal which is a subject matter at large before an appropriate Bench of this Court in Criminal Appeal filed by the appellant herein. The Hon’ble Apex Court in the case of State of West Bengal & Ors., v. Sankar Ghosh reported in (2014) 3 SCC 610, in paragraph 16 has considered the distinction between clean acquittal and acquittal on the ground of benefit of doubt.
Paragraph 16 of the judgment reads as under :-
“16. In Inspector General v. S. Samuthiram [(2013) 1 SCC 598], this Court in paragraph 24, 25 and 26 of the judgment has elaborately examined the meaning and scope of the “honourable acquittal” and held as follows :-
“26. As we have already indicated, in the absence of any provision in the service rules 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 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 that 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.”
7. Having found no fault with the order of the learned Single Judge, we dismiss the appeal.
8. We may clarify that since the impugned communication which was challenged before the learned Single Judge, indicated that it was only on the ground of the pendency of appeal that the appellant was not being considered for any other benefits, the State shall consider the case of the appellant for appropriate orders, subject to the outcome of the Criminal Appeal filed before this Court.
