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2002 DIGILAW 1835 (RAJ)

Shameen Khan v. State of Rajasthan

2002-11-14

SUNIL KUMAR GARG

body2002
JUDGMENT 1. 1. This writ petition under Article 226 of the Constitution of India has been filed by the petitioner on 29.8.2001 against the respondents with the prayer that by an appropriate writ, order or direction, the orders dated 13.11.1997 (Annex.3) passed by the respondent No.3 Dy.Forest Conservator, Aravali Plantation Project, Banswara by which on conviction of the petitioner for the offence under section 120-B, 201, 302 Indian Penal Code by the learned Addl. Sessions Jude, Banswara through judgment dated 22.11.1996, he was removed from service and dated 26.7.2001 (Annex.7) passed by the respondent no.2 Divisional Forest Officer, Banswara by which the prayer of the petitioner for reinstatement on his acquittal by the Division Bench of this Court vide judgment dated 23.3.2001 (Annex.4), was refused, be quashed and set aside and the petitioner be reinstated in service with all consequential benefits. 2. The case of the petitioner as put forward by him in this writ petition is as follows: The petitioner was initially appointed on the post of Cattle Guard in a work-charged cadre under the respondent No.3 Dy. Forest Conservator and was in the employment of the respondents. An FIR bearing No. 434/94 under sections 302, 201 Indian Penal Code was registered at the Police Station Kalinjara and after lodging of that FIR, the petitioner was arrested on 16.10.1994 in connection with the aforesaid criminal case and he remained in judicial custody for more than 48 hours and thus, he was suspended by the respondent No.3 Dy. Forect Conservator vide order dated 24.10.1994 under the provisions of Rule 13(2) of the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958 (hereinafter referred to as "the Rules of 1958"). A copy of the said order dated 24.10.1994 is marked as Annex. 2.Thereafter, a challan was filed against the petitioner and some other persons in the Court of Magistrate, from where the case was committed to the Court of Session and the case was decided by the learned Addl. Sessions Judge, Banswara and the learned Addl. Sessions Judge, Banswara through judgment and order dated 22.11.1996 convicted the petitioner for the offence under sections 120-B, 302, 201 Indian Penal Code and sentenced to undergo imprisonment for life.Since the petitioner was convicted by the learned Addl. Sessions Judge, Banswara vide judgment dated 22.11.1996 for the above offences, the respondent No.3 Dy. Sessions Judge, Banswara and the learned Addl. Sessions Judge, Banswara through judgment and order dated 22.11.1996 convicted the petitioner for the offence under sections 120-B, 302, 201 Indian Penal Code and sentenced to undergo imprisonment for life.Since the petitioner was convicted by the learned Addl. Sessions Judge, Banswara vide judgment dated 22.11.1996 for the above offences, the respondent No.3 Dy. Forest Conservator dismissed the petitioner from service vide order dated 13.11.1997 (Annex.3).Aggrieved from the judgment and order dated 22.11.1996 passed by the learned Addl. Sessions Judge, Banswara, the petitioner preferred an appeal before the Division Bench of this Court being D.B. Criminal Appeal No.600/1996 and the Division Bench of this Court through judgment dated 23.3.2001 allowed that appeal and set aside the judgment and order of the learned Addl. Sessions Judge, Banswara dated 22.11.1996 and acquitted the petitioner of all the charges framed against him. A copy of the Division Bench judgment dated 23.3.2001 is marked as Annex.4.After acquittal, the petitioner submitted a representation to the respondents mentioning all the facts and with the prayer that he may be reinstated back in service with all consequential benefits. A copy of the said representation is marked as Annex.5. Since the respondents did not take any action, therefore, the petitioner submitted another representation, a copy of which is marked as Annex. 6.Thereafter, the respondent No.2 Divisional Forest Officer, Banswara through order dated 26.7.2001 rejected the representation of the petitioner holding that since the Rajasthan Service Rules are not applicable in the case of the petitioner and since the petitioner was a work-charged employee and in the work-charged Rules, there is no provision for reinstatement, therefore, the petitioner cannot be reinstated back in service. A copy of the said order dated 26.7.2001 is marked as Annex. 7.Aggrieved from the orders dated 13.11.1997 (Annex.3) passed by the respondent No.3 and 26.7.2001 (Annex.7) passed by the respondent No.2, the petitioner has preferred this writ petition and the main contention of the learned counsel for the petitioner is that after acquittal in criminal case, the petitioner is entitled to reinstatement in service alongwith all consequential benefits.A reply to the writ petition was filed by the respondents and it has been submitted by the respondents that order Annex.3 dated 13.11.1997 by which petitioner was removed from service, was passed in accordance with the provisions of Order 52(1) of the Standing Orders, 1973. The further case of the respondents is that services of the petitioner are governed by the Standing Orders, 1973 and since in the Standing Orders, 1973, there is no provision for reinstatement of an employee even after having been acquitted in the appeal filed against the judgment of conviction, therefore, representation of the petitioner was rightly rejected vide order Annex.7 dated 26.7.2001 and he was rightly not reinstated in service. Hence, the writ petition filed by the petitioner be dismissed. 3. I have heard the learned counsel appearing for the petitioner and the learned counsel appearing for the respondents and gone through the materials available on record. 4. There is no dispute on the point that the petitioner was first convicted and sentenced by the learned Addl. Sessions Judge, Banswara vide judgment and order dated 22.11.1996 for the offence under sections 120-B, 302, 201 Indian Penal Code and thereafter, he was removed from service vide impugned order Annex.3 dated 13.11.1997 and there is also no dispute on the point that the Division Bench of this Court vide judgment dated 23.3.2001 (Annex.4) acquitted the petitioner of all the charges framed against him. 5. During the course of arguments, the learned counsel appearing for the respondents has frankly submitted that so far as the reinstatement of the petitioner is concerned, the respondents have no objection, but so far as the paying of back wages is concerned, the petitioner is not entitled to full back wages. 6. Thus, in view of the above, there remains no dispute on the point of reinstatement of the petitioner back in service. 7. The only dispute is whether the petitioner is entitled to back wages or not and if so, from which date. 8. The Hon'ble Supreme Court in Ranchhodji Chaturji Thakore V/s Superintending Engineer, Gujarat Electricity Board, Himmatnagar and Anr. AIR 1997 Supreme Court 1802 has observed that in the case of termination of services on ground of conviction in criminal case and subsequent reinstatement on the ground of acquittal, the petitioner is not entitled to back wages. The Hon'ble Supreme Court further observed that since the petitioner of that case had involved himself in a crime, though he was later acquitted, he had disabled himself from rendering the service on account of conviction and incarceration in jail and under these circumstances, the petitioner is not entitled to payment of back wages. 9. The Hon'ble Supreme Court further observed that since the petitioner of that case had involved himself in a crime, though he was later acquitted, he had disabled himself from rendering the service on account of conviction and incarceration in jail and under these circumstances, the petitioner is not entitled to payment of back wages. 9. The Division Bench of this Court in Dhanna Ram V/s RSRTC & Ors. (2002(2) RLR 713) , held that when the termination was based solely on the ground of conviction, after his acquittal the employee became entitled to be reinstated with back wages with effect from the date of acquittal. 10. Thus, as a rule, the petitioner is not entitled to full back wages, but placing reliance on the Division Bench judgment of this Court in the case of Dhanna Ram (supra), the petitioner is entitled to back wages with effect from the date when he was acquitted by the Division Bench of this Court i.e. 23.3.2001. 11. In view of the discussion made above, the impugned orders dated 13.11.1997 (Annex.3) passed by the respondent No.3 and 26.7.2001 (Annex.7) passed by the respondent No.2 cannot be sustained and liable to be set aside and the petitioner is entitled to reinstatement in service with back wages and other benefits with effect from 23.3.2001 and this writ petition deserves to be partly allowed.Accordingly, this writ petition filed by the petitioner is partly allowed in the manner that the impugned orders dated 13.11.1997 (Annex.3) passed by the respondent no.3 Dy. Forest Conservator, Aravali Plantation Project, Banswara and 26.7.2001 (Annex.7) passed by the respondent no.2 Divisional Forest Officer, Banswara are set aside and the respondents are directed to take the petitioner back in service and the petitioner shall be entitled to back wages and other benefits with effect from 23.3.2001.No order as to costs.Petition partly allowed. *******