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Rajasthan High Court · body

2007 DIGILAW 1275 (RAJ)

Nathu Ram v. Jaipur Vidyut Vitran Nigam Ltd.

2007-07-06

P.S.ASOPA

body2007
Honble ASOPA, J.– By the instant writ petition, the petitioner has prayed for an appropriate writ, order or direction to the respondents to amend order dated 2-6-1998 (Anx. 3) so far as it relates to not passing any order for treating the period from 29-12-1983 to 14-12-1997 as spent on duty for all purposes and full pay and allowances. The petition has further prayed to allow all consequential benefits of service from 30-11-1979 to 2-6-1998 including pay and allowances, annual grade increment, bonus, liveries along with interest at the rate of 12% per annum from 2-6-1998 to the date of payment as well as to fix his pay in the Revised Pay Scale Rules, 1981, 1986, 1989 and 1996 as also to grant selection scale as per order dated 25-1-1992. Although the petitioner has prayed for pensionary benefits including pension, gratuity, leave encashment but on the date of final arguments i.e. 18-5-2007, counsel for the petitioner has not pressed for the relief of pension. (2). The facts, in brief, of the case, as per the petitioner are that on 30-11-1979, while the petitioner was working as Helper Grade-II was placed under suspension on the ground of criminal charge. After conviction by the criminal court in anti corruption case, under Sec. 22(4)(a) of the Technical Workers Service Rules, 1975 (in short the Rules of 1975) services of the petitioner from the post of Helper Grade-I were terminated vide order dated 28-12-1982. On filing S.B. Criminal Appeal No. 35/1983, vide judgment dated 15-12-1997, the conviction was set aside by the High Court and the petitioner was acquitted of charges u/S. 161 IPC and Sec. 5(1)(d) and Sec. 5(2) of the Prevention of Corruption Act. Vide order dated 2-6-1998 (Anx. 3), on account of setting aside his conviction and consequent acquittal by the High Court and in compliance with the Boards order dated 3-9-1995, the petitioner was reinstated in service w.e.f. 15-12-1997 i.e. the date of his acquittal. It was further mentioned in order dated 2-6-1998 (Anx. 3) that the period of suspension i.e. from 30-11-1979 to 28-12-1983 (wrongly typed as 28-12-1983, actually it should have been 28-12-1982 as per order of termination) and from 15-12-1997 till his date of joining duty in compliance to the said order shall be treated as period spent on duty for all purposes and full pay and allowances for this period shall be allowed to the petitioner. But in the said order there is no mention with regard to regularization of the period of termination i.e. from 28-12-1982 to 14-12-1997 for which the petitioner submitted representations from time to time as well as legal notice but no heed was paid by the respondents, therefore,the petitioner has filed the present writ petition. (3). Respondents have filed reply to the writ petition and taken objection that alternative remedy under the Industrial Disputes Act, 1947 has not been availed of by the petitioner, therefore, the writ petition is not maintainable. Further, the petitioner might have been gainfully employed elsewhere which could be ascertained by the Labour Court/Industrial Court. The respondents have also raised objection that no benefit of fixation in the revised pay scales of 1981, 1986, 1989 and 1996 as well as selection scale can be given to the petitioner as he has remained out of employment for a long period of fourteen years. It has also been stated by the respondents in the reply that back wages and other benefits of the aforesaid intervening period are not admissible to the petitioner in view of the judgment of the Supreme Court in Union of India vs. Jaipal Singh (2004) 1 SCC 121 . (4). Submission of counsel for the petitioner is that he has been reinstated in service in compliance with the Boards circular dated 3-9-1975 relating to action to be taken in cases where Boards employees are convicted on a criminal charge by a competent court of law. Para (iii) of the aforesaid circular dated 3-9-1975 also deals with the fact situation of acquittal and entitlement to pay and allowances as per Regulation No. 41 of the Employees Service Regulations, 1964 (in short `the Regulations). But only reinstatement has been made as per the circular dated 3-9-1975 and para (iii) of the same was not complied with which specifically deals with the intervening period from the date of termination to the date of reinstatement as well as full pay and allowances. Counsel for the petitioner has further drawn distinction between the present case and the case cited by the respondents mainly on the ground that in Jaipal (supra) there was no specific provision for dealing with the situation of acquittal and the Supreme Court made distinction between prosecution not connected with the service and the prosecution at the behest of the employer. On this issue, further submission of the counsel is that the present case of Anti Corruption was certainly connected with the service of the petitioner therefore, it cannot be said that the petitioner is not entitled to regularization of the intervening period. Counsel for the petitioner has placed reliance on a judgment of the Punjab and Haryana High Court in Shashi Kumar vs. Uttri Haryana Bijli Vitran Nigam through its Managing Director, Panchkula and another (2005(1) SLR 659). (5). Submission of counsel for the respondents is that the alternative remedy available to the petitioner under the Industrial Disputes Act, 1947 has not been availed of by him; therefore, the writ petition is not maintainable. Further submission of the counsel is that the petitioner is not entitled to regularization of the intervening period from the date of termination to the date of reinstatement in view of judgment of the Supreme Court in Jaipal Singh (supra). Counsel also submitted that the petitioner remained out of employment for fourteen years and therefore, he is not entitled to fixation of pay in the Revised Pay Scales of 1981, 1986, 1989 and 1996 as well as selection scale. (6). I have gone through record of the writ petition and considered rival submissions of counsel for the parties. (7). Before proceeding further, it would be useful to quote circular dated 3-9-1975 which reads as under: "RSEB/OSD/C-985/D.3810 Jaipur, Dt. 3-9-75 CIRCULAR Sub: Action to be taken in cases where Boards employees are convicted on a criminal charge by a competent court of law. The following procedure should be adopted in a case of conviction of a Boards employee by a Court of Law on a criminal charge:- (i) ..... (ii) ..... (iii) Ifan appeal/revision against the conviction succeeds and Boards employee is acquitted, the order of dismissal, removal or compulsory retirement based on his conviction which no longer stands, becomes liable to be set aside. A copy of the judgment of the appellate Court should be immediately procured and got examined with a view to decide whether despite the acquittal, the facts and circumstances of the case are such as to call for the departmental enquiry against the Boards employee on the basis of the allegation on which he was previously convicted. A copy of the judgment of the appellate Court should be immediately procured and got examined with a view to decide whether despite the acquittal, the facts and circumstances of the case are such as to call for the departmental enquiry against the Boards employee on the basis of the allegation on which he was previously convicted. If it is decided that a departmental enquiry should be held, formal orders should be made: (1) setting aside the order or dismissal, removal or compulsory retirement, and (2) ordering such a departmental enquiry. Such an order should also state that under Regulation No. 9 of the RSEB (CC & A) Regulations 1962, the Boards employee is deemed to be under suspension with effect from the date of the dismissal/removal/compulsory retirement (A Standard Form-II is enclosed). In case where neither of the aforesaid course is allowed, a formal order should be made setting aside the previous orders of dismissal, removal and compulsory retirement and reinstating him in service (A Standard Form No. III for such an order is enclosed). The period between the date of dismissal etc. and the date on which he resumes duty should be dealt with under Regulation No. 41 of the Rajasthan State Electricity Board Employees Service Regulations and in doing so he should be deemed to be entitled to full pay and allowances for the period from the date of his acquittal to the date of his reinstatement, such period being counted for duty for all purposes and for the period from the date of dismissal to the date of acquittal, he should not be allowed pay and allowances less than what would have been admissible to him had be remained under suspension. While issuing orders for dismissal, it should be borne in mind that the order is issued by the authority competent to inflict major penalty against that person. Sd/- N.S. Bhandari Dy. Secretary (Enq.)" (8). Regulation 41 of the Regulations read as under: "41 Re-instatement after suspension, removal or dismissal: When an employee who has been dismissed, removed or suspended is reinstated, the authority competent to order the reinstatement shall consider and make a specified order: 1. (a) Regarding the pay and allowance to be paid to the employee for the period of his absence from duty, and (b) Whether or not the said period shall be treated as a period spent on duty. (a) Regarding the pay and allowance to be paid to the employee for the period of his absence from duty, and (b) Whether or not the said period shall be treated as a period spent on duty. (c) Whether or not the suspension, removal or dismissal was wholly unjustifiable. 2. Where such competent authority holds that the employee has been fully exonerated or in the case of suspension that it was wholly unjustified, the employee shall be given the full pay and dearness allowance to which he would have been entitled had he not been dismissed, removed or suspended, as the case may be." 3. ..... 4. ..... 5. ..... 6. ..... 7. ..... (9). Relevant portion of para 8 of the Division Bench judgment of Punjab and Haryana High Court in Shashi Kumar (supra) cited by the petitioner reads as under: "8. The aforesaid judgment of the Madras High Court... observations of Rajamannar, C.J. in Jayarams case, AIR 1960 Mad 325". Further more a Division Bench of this Court, after examining the relevant rules in the case of Hukam Singh (supra) had held as under:- "It is abundantly .... present case. In our this view, we are supported by the judgment of this Court in the case of Maha Singh vs. State of Harayana and another 1993(8) Services Law Reporter 188. Same view was expressed by this Court in the case of Lehna Singh vs. The State of Haryana and others, 1993(3) Recent Services Judgments 119: (1993 (6) SLR 320 (Pb. & Hry.). Keeping in view the aforesaid, we have no hesitation in holding that the impugned order cannot be sustained. In terms of Rule 7.5 of the Rules, on petitioners being acquitted, he would be entitled to full salary and allowances for the period of suspension and dismissal.." We are of the considered opinion that in view of the settled law the petitioner is clearly entitled to be reinstated in service with all consequential benefits. We quash the impugned order dated 27-8-2003 (Annexure P. 4). We direct the respondents to reinstate the petitioner into service with full back wages. Mr. Agnihotri has argued that the respondents be given opportunity to now conduct a departmental enquiry. We are of the considered opinion that in view of the categoric findings recorded by the High Court, there would be hardly any justification in permitting further departmental action. We direct the respondents to reinstate the petitioner into service with full back wages. Mr. Agnihotri has argued that the respondents be given opportunity to now conduct a departmental enquiry. We are of the considered opinion that in view of the categoric findings recorded by the High Court, there would be hardly any justification in permitting further departmental action. We, therefore, decline the request made by the counsel for the respondents." (10). Paras 2, 3, 4 and 5 of the judgment in Jaipal Singh (supra) read as under: "2. The above appeal has been filed against the order of the Division Bench of the High Court of Punjab and Haryana at Chandigarh dated 30-10-2001 in CWP No. 12929 of 1999 where under the Division Bench has allowed the writ petition filed by the respondents and ranted relief, as prayed for, directing reinstatement of the respondent with full back wages and consequential benefits. The respondent was involved in a criminal case and he was charge-sheeted for an offence under Section 302 read with Section 34 IPC along with his brother and though he was convicted by the learned Additional Sessions Judge, Rewari for the same by a judgment dated 5-3-1997, on further appeal, before the High Court, the Division Bench of the High Court returned the verdict of Division Bench of the High Court returned the verdict of acquittal. As a consequence thereof, since he was not reinstated in spite of the order of acquittal, he moved the High Court and obtained orders, as noticed supra. Aggrieved, the appellants have come before this Court. 3. Heard Mr. Raju Ramchandran, learned Additional Solicitor General appearing for the appellants, who placed strong reliance upon the decision of this Court in Ranchhodji Chaturji Thakore vs. Supdt. Engineer, Gujarat Electricity Board wherein this Court, in a case identical to the facts of the present case, has chosen to order only reinstatement but denied back wages on the ground that the Department was in no way concerned with the criminal case and, therefore, cannot be saddled with the liability also for back wages for the period when he was out of service during/after conviction suffered by the respondent in the criminal case. Per contra, Mr. Per contra, Mr. Ranbir Singh Yadav, learned counsel for the respondent sought to place reliance upon an order of this Court dismissing the special leave petition filed summarily against the judgment of the very same High Court dated 19-7-2001 in CWP No. 10201 of 2000. The learned counsel for the respondent, by inviting our attention on the judgment of the High Court in that case contended that on the facts the case on hand was also similar to the case considered therein but this Court dismissed the special leave petition when the relief granted for reinstatement and back wages was contested by therein but this Court dismissed the special leave petition when the relief granted for reinstatement and back wages was contested by the authorities before this Court. 4. On a careful consideration of the matter and the materials on record, including the judgment and orders brought to our notice, we are of the view that it is well accepted that an order ejecting a special leave petition at the threshold without detailed reasons therefore does not constitute any declaration of law by this Court or constitute a binding precedent. Per contra, the decision relied upon by the appellant is one on merits and for reasons specifically recorded therefore it operates as a binding precedent as well. On going through the same, we are in respectful agreement with the view taken in Ranchhodji. If prosecution, which ultimately resulted in acquittal of the person concerned, was at the behest of or by the department itself, perhaps different considerations may arise. On the other hand, if as a citizen the employee or a public servant got involved in a criminal case and if after initial conviction by the trial Court, he gets acquittal on appeal subsequently, the department cannot in any manner be found fault with for having kept him out of service, since the law obliges a person convicted of an offence to be so kept out and not to be retained in service. Consequently, the reasons given in the decision relied upon, for the appellants are not only convincing but are in consonance with reasonableness as well. Consequently, the reasons given in the decision relied upon, for the appellants are not only convincing but are in consonance with reasonableness as well. Though exception taken to that part of the order directing reinstatement cannot be sustained and the respondent has to be reinstated in service, for the reason that the earlier discharge was on account of those criminal proceedings and conviction only, the appellants are well within their rights to deny back wages to the respondent for the period he was not in service. The appellants cannot be made liable to pay for the period for which they could not avail of the services of the respondent. The High Court, in our view, committed a grave error, in allowing back wages also, without adverting to all such relevant aspects and considerations. Consequently, the order of the High Court insofar as it directed payment of back wages is liable to be and is hereby set aside. 5. The respondent will be entitled to back wages from the date of acquittal and except for the purpose of denying the respondent actual payment of back wages, that period also will be counted as period of service, without any break. The reinstatement, if not already done, in terms of the order of the High Court will be done within thirty days from today." (11). On consideration of the aforesaid circular and judgments cited by the parties, it is clear that in view of para (iii) of the circular dated 3-9-1975 if an appeal/revision against the conviction succeeds and the Boards employee is acquitted, the order of dismissal, removal or compulsory retirement based on conviction, remains no longer and becomes liable to be set aside. (12). As regards regularization of the period from the date of dismissal to the date of reinstatement, reference of Regulation 41(2) of the Regulations has been made in last but one para of the circular dated 3-9-1975 which specifically makes the incumbent also entitled to pay and allowances not less than what would have been admissible to him had he remained under suspension. The said intervening period is to be regularized as per Regulation No. 41(2) of the Regulations. The said intervening period is to be regularized as per Regulation No. 41(2) of the Regulations. Regulation No. 41(2) of the Regulations although deals with the departmental enquiry where after exoneration of the charges or in case suspension period is held to be wholly unjustified the incumbent is entitled to full pay and allowances for the intervening period but here in the instant case, neither there was any charge sheet nor the petitioner was suspended, therefore, after acquittal the incumbent has been made entitled only to pay and allowances not less than what would have been admissible to him had he remained under suspension, as such, regularization of the intervening period has to be made as per Regulation No. 41(2)of the Regulations treating the same wholly unjustified on account of setting aside the conviction. Since the petitioner has been acquitted, non-regularization of the said intervening period during which the petitioner remained out of service is not justified at all. Apart from the above, the Supreme Court has regularized the intervening period even in case of acquittal in a criminal case where the employee was personally involved in the crime/offence which was not connected with service. Moreover,in the present case, no departmental enquiry was initiated and the petitioner superannuated on 31-5-2003. Therefore, case of the petitioner would be governed by last but one para of the circular dated 3-9-1975 and the petitioner is entitled to regularization of the intervening period. (13). The case of Shashi Kumar (supra) cited by counsel for the petitioner is of Punjab and Haryana High Court whereas the case of Jaipal Singh cited by counsel for the respondents is of the Supreme Court in which earlier judgment in Ranchhodji Chaturji Thakore vs. Supdt. Engineer, Gujarat Electricity Board (1996) 11 SCC 603 has been followed. Supreme Court has drawn distinction between involvement of an employee in crime not connected with the service or prosecution started at the behest of or by the department itself. The said case related to offence u/S. 302 IPC for which the department cannot be saddled with the responsibility of making payment of full pay and allowances from the date of termination to the date of reinstatement. The said case related to offence u/S. 302 IPC for which the department cannot be saddled with the responsibility of making payment of full pay and allowances from the date of termination to the date of reinstatement. Supreme Court ultimately granted back wages from the date of acquittal and except for the purpose of denying the respondent actual payment of back wages, that period also will be counted as period of service without any break. Further direction was given for reinstatement if not already done, in terms of the order of the High Court will be done within thirty days from the date of judgment. Therefore, the facts of present case are different from the facts of the case of Jaipal Singh (supra). However, the same is to be decided as per the law laid down by the Supreme Court to the effect that the prosecution which ultimately resulted in acquittal of the person was at the behest or by the department itself, perhaps different considerations may apply. (14). In Jaipal Singh (supra) there was he such circular dated 3-9-1975 according to last but one para of clause (iii) of which petitioner is entitled to be allowed payment of pay and allowances not less than what would have been admissible had he remained under suspension for the intervening period. The reference of circular dated 3-9-1975 has been made in reinstatement order dated 2-6-1998. (15). Herein the instant case, involvement in the crime is connected with the service as a public servant and therefore, different considerations will apply and as per circular dated 3-9-1975 the petitioner is entitled to get pay and allowances not less than what would have been admissible to him had he remained under suspension. (16). In view of the above, the respondents are directed to make payment of pay and allowances to the petitioner, not less than what would have been admissible to him had he remained under suspension from the date of termination to acquittal in criminal case. The said period from the date of termination to the date of acquittal shall be treated as spent on duty without any break and the respondents are further directed to fix pay of the petitioner in the Revised Pay Scales of 1981, 1986, 1989 and 1996 and further consider his case for grant of selection scale. The said period from the date of termination to the date of acquittal shall be treated as spent on duty without any break and the respondents are further directed to fix pay of the petitioner in the Revised Pay Scales of 1981, 1986, 1989 and 1996 and further consider his case for grant of selection scale. Appropriate orders shall be passed within a period of three months from today. (17). The writ petition is disposed of accordingly.