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2006 DIGILAW 1121 (DEL)

NARESH AHLAWAT v. MAHANAGAR TELEPHONE NIGAM LTD

2006-07-07

SHIV NARAYAN DHINGRA, T.S.THAKUR

body2006
( 1 ) THIS Letters Patent Appeal arises out of an order passed by a learned single Judge of this Court whereby a writ petition filed by the appellant herein challenging an order granting only 50% back wages during the period of his suspension has been dismissed. ( 2 ) THE petitioner was working as Lower Division Clerk in the MTNL. He was arrested in connection with FIR No. 268/1985 for an offence punishable under section 376/302 of the IPC. He was on that basis placed under suspension in september 1985. An Additional Sessions Judge before whom the petitioner was tried for the offences aforementioned, eventually convicted and sentenced him to life imprisonment holding that the charge of rape with murder was established against the petitioner. ( 3 ) IN an appeal preferred by the petitioner against the said order of conviction and sentence, the High Court of Punjab and Haryana acquitted the petitioner in terms of a judgment dated 4th October, 1993. Shortly thereafter, the petitioner represented to the respondent for revocation of his suspension and reinstatement in service. This was followed by reminders and eventually a legal notice seeking the petitioner's reinstatement. In the meantime, Mr. Khazan Singh, the father of the deceased preferred a Special Leave Petition before the Supreme Court against the order of acquittal passed by the High Court which was finally dismissed by the Supreme Court in February, 2003. ( 4 ) THE petitioner once again represented for his reinstatement and then filed WP (C) No. 6698/2003 in this Court. The said petition was disposed of by a single Bench of this Court on 6th December, 2004 taking note of the revocation of the order of suspension and the reinstatement of the petitioner. The Court also took note of the submission made on behalf of the respondent that the competent authority would take a decision regarding the treatment to be given during the period of suspension to the petitioner and payment of back wages to him. ( 5 ) CONSEQUENT upon the order passed by the Court, the respondent issued a show cause notice to the petitioner in which it proposed to treat the subsistence allowance already paid to the petitioner from 12. 09. 85 to 31. 08. 92 as the final payment. ( 5 ) CONSEQUENT upon the order passed by the Court, the respondent issued a show cause notice to the petitioner in which it proposed to treat the subsistence allowance already paid to the petitioner from 12. 09. 85 to 31. 08. 92 as the final payment. It also proposed to pay a proportionate amount equal to 50% of the basic pay along with other allowances to the petitioner for the period spent under suspension from 01. 09. 92 to 19. 11. 94 and called upon the petitioner to make a representation against the proposed action. The petitioner appears to have submitted his reply upon consideration whereof, the respondents passed an order on 1st March, 2005 granting 50% of the basic pay along with admissible allowances under FR 54-B (5) to the petitioner for the period 1. 9. 92 to 19. 11. 04 and treating the subsistence allowance already paid for the period 12. 09. 85 to 31. 08. 92 as the final payment. ( 6 ) AGGRIEVED by the order aforementioned, the petitioner filed WP (C) No. 4924/2005 in which he assailed the correctness of the view taken by the respondents and sought a mandamus directing payment of full back wages to the petitioner from the date he was placed under suspension with interest and also for grant of promotion to the next higher post. This petition was opposed by the respondent on several grounds and was eventually disposed of by the learned single Judge in terms of the order impugned in the present appeal. The learned single Judge held that grant of back wages or salary would depend upon the circumstances of each case and that the decision taken by the respondent not to pay full back wages could not be described as arbitrary. The Court further held that a writ Court could not examine the validity of an administrative decision and on a subjective analysis, hold that the view taken by the authority was arbitrary. The present appeal as already noticed earlier assails the correctness of the above order. ( 7 ) WE have heard learned counsel for the appellant and perused the order under challenge. Appearing for the appellant Mr. C. Hari Shankar made a two-fold submission before us. The present appeal as already noticed earlier assails the correctness of the above order. ( 7 ) WE have heard learned counsel for the appellant and perused the order under challenge. Appearing for the appellant Mr. C. Hari Shankar made a two-fold submission before us. Firstly, it was argued that there was no justification for the continued suspension of the petitioner even after he had been acquitted by the High Court of Punjab and Haryana. He urged that the petitioner was entitled to full back wages for the entire period after his acquittal, but even if the suspension was held to be justified after the date of the petitioner's acquittal, the same could never be so after the High Court had delivered its judgment. Denial of 50% of the back wages to the appellant from the date of the acquittal of the appellant up to the date of his reinstatement was in any case unjustified and arbitrary, argued the learned counsel. ( 8 ) THERE is, in our opinion, no merit in the contention urged by the learned counsel. It is true that the appellant had been acquitted of the charges by the High Court in the year 1993 but it is equally true that the said judgment had not attained finality till the special leave petition filed against the same was heard and disposed of by the Apex Court in February, 2003. The pendency of the special leave petition against the judgment of acquittal from 1994 till the date of its dismissal in 2003 was, in our opinion, a sufficient reason for the respondent to continue the appellant under suspension. We say so because so long as the special leave petition filed against the impugned judgment remained pending before their Lordships, the criminal proceedings on account whereof the petitioner was placed under suspension must be deemed to be pending for adjudication. It was not, therefore, a case where the suspension of the petitioner had been continued beyond a particular date without the semblance of a justification for such suspension. The charge in the instant case being one of a very grave nature and the Supreme Court having entertained the Special leave Petition against the impugned judgment, the respondent was justified in waiting for the outcome of the proceedings in the Apex Court before reinstating the petitioner in service. The charge in the instant case being one of a very grave nature and the Supreme Court having entertained the Special leave Petition against the impugned judgment, the respondent was justified in waiting for the outcome of the proceedings in the Apex Court before reinstating the petitioner in service. No fault can, therefore, be found with the order passed by the respondent on that account. ( 9 ) IT was next argued by Mr. C. Hari Shankar that there was no real justification for denying to the appellant the benefit of full back wages especially when the appellant had been acquitted of the charges framed against him. We regret our inability to accept that submission also. Grant of pay and allowances for the period during which an employee remains under suspension is regulated by FR 54-B of the Rules governing the service conditions of the appellant. Sub-rule (5) of FR 54-B is applicable to the appellant and reads thus:"54-B In cases other than those falling under sub-rules (2) and (3) the Government servant shall, subject to the provisions of sub-rules (8) and (9) be paid such amount (not being the whole) of the pay and allowances to which he would have been entitled had he not been suspended, as the competent authority may determine, after giving notice to the government servant of the quantum proposed and after considering the representation, if any, submitted by him in that connection within such period (which in no case shall exceed sixty days from the date on which the notice has been served) as may be specified in the notice. " ( 10 ) IT is not the case of the appellant before us that his claim for full salary and allowances falls under Sub Rule 2 and 3 of FR 54-B. That being so, the competent authority had to determine after giving a notice to the appellant the amount payable to the appellant towards salary and allowances for the period of suspension. That is precisely what was done in the instant case. The competent authority took a decision after issuing to the appellant a notice and considering his representation against the same. Just because the competent authority could have allowed a higher amount of salary than what it has done, would not render the order passed by it illegal or outrageously unreasonable so as to justify interference by a writ court. The competent authority took a decision after issuing to the appellant a notice and considering his representation against the same. Just because the competent authority could have allowed a higher amount of salary than what it has done, would not render the order passed by it illegal or outrageously unreasonable so as to justify interference by a writ court. It is fairly well-settled that in matters of judicial review of administrative action, the writ court does not sit in appeal over the decision under challenge. So long as there is no illegality or procedural irregularity in the order and so long as the order does not suffer from any perversity, the court would be slow in interfering with the order passed by a subordinate authority especially when the order involves in some measure exercise of discretion vested in such authority. The Court may interfere only when the order passed by the authority is so outrageously unreasonable or irrational that no prudent person would have subscribed to the same. In as much as the competent authority had in the instant case decided that the appellant shall be entitled to 75% of salary and allowances already paid to him as subsistence allowance and proportionate amount equal to 50% of the basic pay and allowances for the period from 1. 9. 92 to 19. 11. 04, it did not commit any illegality, procedural irregularity or perversity to call for interference. ( 11 ) WE may, at this stage, refer to the decisions of the Supreme Court which have dealt with the question of payment of salary to an employee who is eventually acquitted of the charge framed against him. In Krishnakant Raghunath bibhavnekar Versus State of Maharashtra and Others, 1997 (3) SCC 636 , their lordships held that an employee-accused can be acquitted because the available evidence is insufficient to bring home the guilt beyond a reasonable doubt. All the same, granting reinstatement with back wages would send ripples among the people in office/locality and so seeds for degeneration of morality, integrity, rightful conduct and efficient performance of public duty. The Court observed that it would be deleterious to the maintenance of discipline if a person who was suspended on valid consideration is given full back wages as a matter of course. The Court observed that it would be deleterious to the maintenance of discipline if a person who was suspended on valid consideration is given full back wages as a matter of course. The disciplinary authority would, therefore, be competent to take a decision in regard to the period of suspension after following the principles of natural justice. The following passage succinctly sums up the law and the rationale behind the same :-"legal evidence may be insufficient to bring home the guilt beyond doubt. The act of reinstatement sends ripples among the people in the office/locality and sows wrong signals for degeneration of morality, integrity and rightful conduct and efficient performance of public duty. The constitutional animation of public faith and credit given to public acts would be undermined. Every act or the conduct of a public servant should be to effectuate the public purpose and constitutional objective. Public servant renders himself accountable to the public. If the alleged conduct is the foundation for prosecution, grant of consequential benefits with all back wages, etc. cannot be as a matter of course, even if the employee may have been acquitted on appreciation or lack of sufficient evidence. It would be deleterious to the maintenance of discipline if a person who was suspended on valid considerations is given full back wages as a matter of course, on his acquittal. The disciplinary authority has option either to enquire into the misconduct unless the selfsame conduct was subject-matter of the charge and on trial the acquittal was not based on benefit of doubt but on a positive finding that the accused did not commit the offence at all. The authority may also, on reinstatement, pass appropriate order including treating suspension period as not spent on duty, after following the principles of natural justice. " ( 12 ) IN Hukmi Chand Versus Jhabua Cooperative Central Bank Ltd. , Jhabua (M. P.) and Another, 1998 (2) SCC 291 , the employee had, inter alia, challenged the validity of Rule 49 (ii) of the Madhya Pradesh Cooperative Central Bank employees Rules, 1977 in as much as the same empowered the competent authority to direct a reinstatement upon acquittal without payment of back wages. Repelling the contention that the power available under the said Rule to the employer was a fetter and that the same was arbitrary, their Lordships held that the right to reinstatement on acquittal did not carry with it by necessary implication a right to back wages. The employer had the discretion to grant back wages which discretion could not be described as arbitrary. The Court observed :"the right to reinstatement on acquittal, therefore, does not carry with it, by necessary implication, a right to back wages under Rule 49 (ii ). But the employer has the discretion to grant back wages. Such a "fetter" if at all it is a fetter, cannot be considered as arbitrary, in view of the fact that the termination of services under Rule 49 (i) is on conviction. During the pendency of an appeal, the conviction is not obliterated. However, on acquittal, Rule 49 (ii) provides for reinstatement. The grant of back wages, in these circumstances, will obviously depend upon the facts and circumstances of each case, especially because in the interregnum, the employee does not work with the employer on account of a valid termination of service. " ( 13 ) TO the same effect is the decision of the Supreme Court in Ranchhodji chaturji Thakore Versus Superintendent Engineer, Gujarat Electricity Board, himmatnagar (Gujarat) and Another, 1996 (11) SCC 603 , where their Lordships held that each case is required to be considered in its own backdrop while examining whether or not the back wages are payable to the employee. The Court further held that since the employee had in that case involved himself in a crime of which he was later on acquitted, he had disabled himself from rendering the service on account of conviction and incarceration in jail. Back wages were under those circumstances denied to him. Reference may also be made to Union of india and Others Versus Jaipal Singh, 2004 (1) SCC 121 . That was a case in which a prosecution of the employee had failed and the question was whether he was entitled to claim back wages. Back wages were under those circumstances denied to him. Reference may also be made to Union of india and Others Versus Jaipal Singh, 2004 (1) SCC 121 . That was a case in which a prosecution of the employee had failed and the question was whether he was entitled to claim back wages. Their Lordships noticed the decision in ranchhodji's Case (supra) and observed that in cases where the prosecution was at the instance of the Department, i. e. , the employer itself, different considerations may arise, otherwise the employer may not be made liable to pay for the period for which he could not render the service on account of his getting involved in the commission of the crime. ( 14 ) THE legal position is thus fairly well-settled that the acquittal of an employee accused of a criminal case does not ipso facto entitle him to payment of back wages. The claim for any such salary/wages shall have to be considered in the peculiar facts and circumstances of each case having regard to the rules regulating the service conditions of the employee. The position in the instant case has thus to be seen from the point of view of the rules that empower the competent authority to take a decision and the validity of the decision taken by the said authority. On either count, we find no illegality, irregularity or perversity of any kind to warrant interference. The single judge was, therefore, right in dismissing the writ petition. There is no merit in this appeal which fails and is hereby dismissed but in the circumstances without any orders as to costs.