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2004 DIGILAW 521 (KER)

A. A. Joseph v. Union Bank of India

2004-11-02

J.B.KOSHY, K.P.BALACHANDRAN

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Judgment :- Koshy, J. Appellant/petitioner an Ex-service man, while working as Armed Guard in the panambilly Nagar Branch of the respondent Bank, was prosecuted on the allegation that he has stolen a signed blank cheque of a customer of the Bank and then used it for his own purpose and he was convicted by the Chief Judicial Magistrate Court, Ernakulam. He was suspended by Ext.P2 memo dated 8.5.1996. He was dismissed from service by Ext.P3 order dated 1.8.1997 as he was convicted in the criminal case. No departmental enquiry was conducted against him. By Ext.P4 appellate judgment dated 4.9.1997, he was acquitted. He made several representations like Exts. P5 and P6 to the management for reinstatement. On 3.2.1998 by Ext.P7 memo he was informed that it was decided by the Management to reinstatement him in service without pay and allowance for the intervening period and he was asked to await posting. Thereafter, he was posted only on 18.2.1998 by Ext. P8. He rejoined service and by Ext.P9 representation dated 6.4.1998, he requested for backwages. Since that was rejected, he approached this court for backwages. The learned single judge accepted the submission of the counsel for the Bank that bipartite settlement did not provide payment of backwages for the above period and held that he is not entitled for backwages. The above finding is challenged before us. 2. According to the counsel for the appellant he was acquitted by the criminal court after having found that he is not guilty of the offence. In Ext.P4 there is a clear finding that prosecution did not prove the case, that it was a cooked up story and the accused was made as a scapegoat and that there is no evidence to support the case of the prosecution. In the above circumstances, it is the submission of the appellant that he was illegally denied employment for a long period and he is entitled to backwages for the same. The learned counsel for the Bank again reiterated that provisions of the bipartite settlement did not give him a right to get backwages for that period. It is also submitted that since he has rejoined duty without making protest he is not entitled to claim backwages. Now we will consider the relevant clauses in the bipartite settlement. 3. The learned counsel for the Bank again reiterated that provisions of the bipartite settlement did not give him a right to get backwages for that period. It is also submitted that since he has rejoined duty without making protest he is not entitled to claim backwages. Now we will consider the relevant clauses in the bipartite settlement. 3. Clause 19.3 (c) and (d) are the relevant provisions, which are as follows: “(c) If he be acquitted it shall be open to the management to proceed against him under the provisions set out below in Clauses 19.11 and 19.12 infra relating to discharges. However, in the event of the management deciding after enquiry not to continue him in service, he shall be liable only for termination of service with three months pay and allowances in lieu of notice. And he shall be deemed to have been duty during the period of suspension, if any, and shall be entitled to the full pay and allowances minus such subsistence allowance as he has drawn and to all other privileges for the period of suspension, provided that if he be acquitted by being given the benefit of doubt he may be paid such portion of such pay and allowances as the management may deem proper, and the period of his absence shall not be treated as a period spent on duty unless the management so direct. (d) If he prefers an appeal or revision application against his conviction and is acquitted, in case he had already been dealt with as above and he applies to the management for reconsideration of his case, the management shall review his case and may either reinstate him or proceed against him under the provisions set below in Clause 19.11 and 19.12 infra relating to discharge, and the provision set out above as to pay, allowances and the period of suspension will apply, the period up-to-date for which full pay and allowances have not been drawn being treated as one of suspension. In the event of the management deciding, after enquiry not to continue him in service, the employee shall be liable only for termination with three months pay and allowances in lieu of notice, as directed above.” The employer can either take disciplinary action or await the decision of the criminal proceedings. In the event of the management deciding, after enquiry not to continue him in service, the employee shall be liable only for termination with three months pay and allowances in lieu of notice, as directed above.” The employer can either take disciplinary action or await the decision of the criminal proceedings. The provisions in the bipartite settlement enables the Management to take disciplinary action even after his acquittal. But it provides that even in cases where management decided to terminate the services of an employee after taking disciplinary proceedings, he is entitled to full pay and allowances for the period of suspension minus such subsistence allowance he has drawn as he was acquitted by the criminal court. However, the Management was given a discretion to deny portion of the backwages, if he is acquitted by giving benefit of doubt. Clause 19.3(d) says that even if his services are terminated after finding of conviction and in appeal he is acquitted, on representation he can be reinstated. It further says that even in such cases, he is entitled to full pay and allowances for the period of suspension and thereafter, only for three months’ pay and allowances. Therefore, the provisions are clear that even if in the disciplinary action the employee is found guilty and management decided to terminate his service, he is entitled to full pay and allowance except the subsistence allowance during the period of suspension. In this case, he was under suspension pending enquiry from 8.5.1996 to 1.8.1997. During that period he has got only subsistence allowance. In view of the terms and regulations of the bipartite settlement he is entitled to full pay and allowances for the above period after deducting the subsistence allowance already paid during the above period. It is true that he was dismissed by order dated 1.8.1997 because of the conviction made by the criminal court. It cannot be stated that the employer was faulty in dismissing him. But it is to be noted that hearing about his conviction the employer was immediate in taking action against him. He was acquitted by Ext.P4 order dated 4.9.1997. In spite of his representations, the Bank took its won time to reinstate him. In such circumstances, he is entitled to backwages from the date of acquittal only as held by the Supreme Court in Union of India and others v. Jaipal Singh ((2004) 1 SCC 121). 4. He was acquitted by Ext.P4 order dated 4.9.1997. In spite of his representations, the Bank took its won time to reinstate him. In such circumstances, he is entitled to backwages from the date of acquittal only as held by the Supreme Court in Union of India and others v. Jaipal Singh ((2004) 1 SCC 121). 4. Learned counsel for the Management relied on the decision of the Apex Court in K. Ponnamma v. State of Kerala and others ((1997) 9 SCC 36). In that case it was held that payment of backwages under the Kerala Service Rules is the discretion of the management. The above judgment is based on the provisions of the Kerala Service Rules where the employer is given the discretion to decide about granting of backwages. Considering the criminal charge, finding of acquittal etc. there the disciplinary authority exercised its discretion and denied the backwages. It was upheld by the Apex Court. Same is the decision in Ranchhodil Chaturji Thakore v. Superintendent Engineer, Gujarat Electricity Board, Himmatnagar (Gujarat) and another ((1996) 11 SCC 603). 5. In this case the appellate court held that the case against the appellant was concocted and prosecution has no case against him and appellant was made a scapegoat. Here, according to the appellant, he was illegally denied employment, hence he is entitled to full backwages. It cannot be stated that he was illegally denied employment. As originally he was convicted, the employer was justified in dismissing him and since he was acquitted, he is entitled to be reinstated. Therefore, he is not entitled to backwages for the period from the date of dismissal till the date of acquittal. But from the date of acquittal, he is entitled to full backwages. As per the Regulations, even if the acquittal is on the benefit of doubt, they are bound to pay part of the backwages at the discretion of the Management. That shows that there is a discretion left to the management in giving backwages after the date of acquittal, holding that the case is concocted. The Management also did not decide to conduct enquiry after the acquittal. 6. With regard to the claim for estoppel, the petitioner relied on the decision of the Supreme Court in Sanat Kumar Dwivedi v. Dharjila Sahakari Bhoomi Vikas Bank Maryadit and others ((2001) 9 SCC 402). There the claimant was dismissed from service on 8.3.1976. The Management also did not decide to conduct enquiry after the acquittal. 6. With regard to the claim for estoppel, the petitioner relied on the decision of the Supreme Court in Sanat Kumar Dwivedi v. Dharjila Sahakari Bhoomi Vikas Bank Maryadit and others ((2001) 9 SCC 402). There the claimant was dismissed from service on 8.3.1976. Thereafter, he was reinstated in service on condition that he will not get any backwages. He accepted that condition and rejoined duty. Much later, he claimed backwages. The Supreme Court held that since he was reinstated with a specific condition that he was not entitled to backwages, he cannot claim after long delay. In this case, after acquittal he was reinstated not as a grace of the employer or by agreement with a condition that he will not be entitled to backwages. In other words, the order of reinstatement was not made with a condition that that will be implemented only if he agreed with denial of backwages. But it is only stated that he will not be entitled to pay and allowances for that period, based upon the interpretation of the regulation. He claimed backwages immediately after the reinstatement. Therefore, it cannot be stated that a poor security guard, who was denied employment for a long time not for his fault, when given reinstatement, rejoined duty and then claimed backwages, is estopped from claiming backwages. In the above circumstances, we are of the opinion that he is entitled to wages during the period of suspension, after deducting subsistence allowance already drawn for the period he was under suspension pending enquiry, and full backwages from the date of acquittal till the date of reinstatement. But he will not be entitled to backwages from the date of dismissal till the date of acquittal. The writ appeal is allowed to the above extent.