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2007 DIGILAW 630 (GAU)

Abdul Selim v. State of Tripura

2007-09-19

H.N.SARMA

body2007
JUDGMENT H.N. Sarma, J. 1. Challenging the legality and validity of the order passed by the respondent/authorities dated 30.5.2000 restricting the pay and allowances of the petitioner to the subsistence allowance paid to him for the period from 13.3.87 to 12.9.88 and directing to regularize the period between the dismissal from service and reinstatement with effect from 7.7.95 to 3.10.97 by granting admissible leave and also praying for direction to the respondents for consideration of his case for promotion to the next higher rank, the present petition has been filed by the petitioner. 2. I have heard Mr. P. Roy Barman, learned Counsel for the petitioner and Mr. Sarkar, learned Standing counsel for the Corporation. 3. The brief facts necessary for disposal of the writ petition are as follows: 4. The petitioner was appointed as Sales Asstt. Under the Director of Handloom and Handicraft Development Corporation Ltd., Respondent No. 2, a Public Sector Organization in the State of Tripura on 27.06.81. In contemplation of disciplinary proceeding, the petitioner was placed under suspension with effect from 13.3.87. On 5.6.89. An FIR was also lodged against the petitioner with East Agartala Police Station alleging misappropriation of certain amount of the Corporation while he was serving as Sales Asstt. The aforesaid FIR resulted into registration of a Police case being Case No. 9(6)/89 under Section 5(2) of the Prevention of Corruption Act, 1947 and under Section 409 IPC. After necessary investigation, the investigating agency having found prima facie materials submitted charge-sheet against the petitioner. The case was tried by the learned Special Judge, Agartala who vide judgment and order dated 7.7.95 passed in Special Case No. 2/94, having found the allegation against the petitioner proved, convicted him under Section 409 IPC and sentenced him to suffer RI for 5 (five) years and to pay fine of Rs. 5,000/- in default further RI for six months. The aforesaid conviction was challenged by the petitioner in Criminal Appeal No. 17/95 before this High Court. The High Court vide judgment and order dated 30.4.97 allowed the appeal and acquitted the accused on benefit of doubt. However, at paragraph 26 of the judgment the High Court observed as follows: ...Consequently it is evident that the convict-appellant can not avoid his responsibility in not discharging his duties faithfully. The High Court vide judgment and order dated 30.4.97 allowed the appeal and acquitted the accused on benefit of doubt. However, at paragraph 26 of the judgment the High Court observed as follows: ...Consequently it is evident that the convict-appellant can not avoid his responsibility in not discharging his duties faithfully. If the convict-appellant has not place the carbon paper in the duplicate and triplicate copy of the cash memo, then there is possibility of tempering the amount in the duplicate and triplicate copy of the cash memo. It has not been proved by the prosecution who has written the duplicate and triplicate copy of the cash memo. But even if such writing is not proved the convict-appellant can not escape his responsibility for not discharging his duties properly.... How ever, the convict-appellant cannot avoid his responsibility of negligence in duty. 5. In the meantime after conviction of the petitioner by the learned Special Judge, he was dismissed from service of the Corporation vide order dated 26.8.95 invoking Rule 19(1) of the CCS (CCA) Rules, 1965. This dismissal order was preceded with show-cause notice dated 11.08.95 to which he re-plied on 19.08.95. After getting acquittal of the criminal charges from the High Court in the aforesaid appeal, the petitioner made a prayer before the Corporation furnishing a copy of the judgment for reinstatement in service revoking the order of dismissal which was followed by another letter dated 18.9.97. The respondents authority in pursuance to the judgment and order dated 30.9.97 passed by the High Court revoked the order of dismissal dated 26.8.95 and the petitioner was directed to report for his duty. 6. In terms of the aforesaid order dated 30.9.97 the petitioner joined in his service immediately on 3.10.97. The respondents authority in pursuance to the judgment and order dated 30.9.97 passed by the High Court revoked the order of dismissal dated 26.8.95 and the petitioner was directed to report for his duty. 6. In terms of the aforesaid order dated 30.9.97 the petitioner joined in his service immediately on 3.10.97. After joining in the service the petitioner made a prayer for regularization of his service with full pay and allowance as admissible under the Rules during the period of suspension and dismissal and on such prayer the respondent authority passed an order on 15.2.2000 to the effect that-(1) the period of suspension w.e.f. 13.3.87 to 12.9.88 would be treated as on duty only for the purpose of counting his service and counting for pensionary benefit and the amount paid to him as subsistence allowance during the period of suspension would be treated as his pay for all practical purposes, (2) The intervening period between the dismissal and reinstatement w.e.f. 7.7.95 to 3.10.97 would be regularized by granting admissible leave since the incumbent did not perform any duty during that period and he was acquitted on the ground of benefit of doubt and (3) all pending increments would be released as per rule. Opinion of the petitioner was sought for in this regard whether he would accept the same or not. In his reply dated 18.2.2000, the petitioner reiterated his demand for getting full pay and allowance for the aforesaid period. Upon receipt of said reply, the Managing Director of the Corporation passed the impugned order dated 30.5.2000 by which the prayer of the petitioner for payment of back wages were duly considered as follows: (1) Period of suspension w.e.f. 13.3.87 to 12.9.88 would be treated period spent as on duty for the limited purpose of counting his past service and counting of retirement benefits. The amount already received by him as subsistence allowance during the period of suspension will be treated as his pay for all practical purpose. (ii) The intervening period of unemployment in between the day of dismissal from service and reinstatement w.e.f. 7.7.95 to 3.10.97 will be regularized by granting admissible leave since the incumbent did not perform duty during that period and he was acquitted by the Hon'ble High Court on the ground of benefit of doubt. (ii) The intervening period of unemployment in between the day of dismissal from service and reinstatement w.e.f. 7.7.95 to 3.10.97 will be regularized by granting admissible leave since the incumbent did not perform duty during that period and he was acquitted by the Hon'ble High Court on the ground of benefit of doubt. (iii) All the pending increments of pay of the incumbent shall be released as per rule including the benefits arising out of R.O.P. 99. 7. Challenging the aforesaid order as well as for non-consideration of his case for promotion to the next higher grade, the present petition has been filed by the petitioner invoking writ jurisdiction of the High Court under Article 226 of the Constitution. 8. Opposing the prayer of the petitioner, the Corporation has filed a counter affidavit wherein it is pleaded that the petitioner is not entitled to back wages in full as claimed and the Corporation having its discretion in the matter has dealt with the case of the petitioner, as per Rule showing much lenient. Mr. Roy Barman, the learned Counsel for the petitioner during the course of argument submits that the authority in the instant case having resorted to dismiss the petitioner from service by invoking Rule 19 in view of his conviction in the criminal case, is entitled to be reinstated with full back wages after his reinstatement on acquittal from criminal charges but they not having been paid the back wages, acted arbitrarily causing prejudice to him. It is further submitted that while taking a decision to dismiss the petitioner, the authority did not apply its mind effectively to consider his case in terms of Rule 19 of CCS (CCA) Rules. The learned Counsel further submits that the period of suspension and dismissal not being a very large one and on the face of allowing the continuity in his service, the petitioner ought to have been provided with full back wages, to which he was entitled under the aforesaid Rules. 9. In support of his contention, the learned Counsel refers the following decisions of the Apex Court: i) The Divisional Personnel Officer. Southern Railway and Anr. v. T.R. Chellappan. ii) Babulal v. State of Haryana and Ors. iii) (2001) 2 SCC 54 .P.G.I. of Medical Education and Research, Chandigarh. iv) U.P. SRTC Ltd. v. Sarada Prasad Misra and Anr. v) State of Rajasthan and Anr. v. Ghyan Chand. 10. Southern Railway and Anr. v. T.R. Chellappan. ii) Babulal v. State of Haryana and Ors. iii) (2001) 2 SCC 54 .P.G.I. of Medical Education and Research, Chandigarh. iv) U.P. SRTC Ltd. v. Sarada Prasad Misra and Anr. v) State of Rajasthan and Anr. v. Ghyan Chand. 10. Referring the grievance for not providing promotion it is submitted by the learned Counsel for the petitioner that the respondent not having controverted his claim for promotion in the counter and he being unreasonably denied with promotion to the next higher grade, is also entitled for suitable direction in this regard. 11. Per contra, the learned Counsel appearing for the Corporation submits that although the petitioner was acquitted from the criminal charges by the appellate court but reading of the appellate judgment as a whole it is to be found that the offence of misappropriation of corporation money committed by the petitioner has not been disbelieved and the Corporation taking all aspects into consideration and by taking very lenient view, was reinstated the petitioner in service by regularizing the period restricting his back wages as indicated in the impugned order. It is further submitted that the Corporation has got discretion in the matter of paying back wages in such a case as contemplated under the Rule and such discretion having been exercised by the Corporation reasonably with proper application of mind, the same is not required be interfered with. It is further submitted that the petitioner is also not entitled to get the back wages beyond what has been provided to him on the principle of 'no work no pay'. 12. I have considered the rival submissions made by the learned Counsel for the parties and also perused the related pleadings of the parties and other materials available before me. 13. The broad facts relating to suspension of the petitioner and his conviction by the learned Special Judge, dismissal from service in exercise of power under Rule 19 (1) of the CCS (CCA) Rules and subsequent acquittal of the petitioner, revoking the order of dismissal on the basis of the judgment of appellate court and passing of the impugned order after providing necessary opportunity to the petitioner, are not in dispute. Thus the question that remains to be considered here is as to whether the Corporation is justified in law or in facts in issuing the impugned order restricting his back wages in the manner as indicated therein. 14. In juxtaposition of the claim of the petitioner for reinstatement with full back wages after his acquittal in the criminal case and in the light of the refusal of the employer to pay the same, the question now falls for consideration is whether the acquittal in a criminal case of a public servant who was under suspension during the period is automatically entitled to get the full back wages after reinstatement. 15. Payment of back wages on reinstatement of a suspended employee depends on various consideration. In this regard we may profitably refer to the decision of the Apex Court rendered in U.P. SRTC Ltd. v. Sarda Prasad Misra and Anr. as referred by Mr. Roy Barman. The Apex Court in the said case in paragraph 13 held as follows: But even otherwise, the award passed by the Labour Court as also the order of the High Court granting back wages deserves interference. In several cases, this Court has held that payment of back wages is a discretionary power which has to be exercised keeping in view the facts and circumstances of each case and neither straitjacket formula can be evolved, nor a rule of universal application can be adopted (vide P.G.I. of Medical Education and Research v. Raj Kumar; Hindustan Motors Ltd. v. Tapan Kumar Bhattacharya). In Kendriya Vidyalaya Sangathan v. S.C. Sharma this Court held that when question of determination of entitlement of back wages comes up for consideration, prima facie, it is for the employee to prove that he had not been gainfully employed. Initial burden is on the employee to show that he remained without any employment. In several cases, similar view has been taken by this Court in recent years. In M. P. SEB v. Jarina Bee it was observed that reinstatement in service and payment of back wages are two different things and payment of back wages is not a natural consequence of setting aside an order of dismissal. In Allahabad Jal Sansthan v. Daya Shankar Rai, it was indicated that the law is not in absolute terms that in all cases of illegal termination of services, a workman must be paid full back wages. In Allahabad Jal Sansthan v. Daya Shankar Rai, it was indicated that the law is not in absolute terms that in all cases of illegal termination of services, a workman must be paid full back wages. In Haryana State Coop. Land Development Bank v. Neelam it was stated that the aim and object of the Industrial Disputes act is to impart social justice to the workman but keeping in view his conduct. Payment of back wages, therefore, would not be automatic on entitlement of the relief of reinstatement. In G.M., Haryana Roadways v. Rudhan Singh the Court reiterated that there is no rule of thumb that in each and every case, where the Industrial Tribunal records a finding that the order of termination of service was illegal that an employee is entitled to full back wages. A host of factors which are relevant, must be taken into account. 16. Consideration for payment of back wages to an employee after revocation of the order of suspension also came up for consideration of the Apex Court in a case reported in (Krishnakant Raghunath Bibhavnekar v. State of Maharashtra and Ors.). In the said case the Apex Court inter alia held that the purpose of the prosecution of a public servant is to maintain discipline in service, integrity, honesty and truthful conduct in performance of public duty or for modulation of his conduct to further the efficiency in public service. The Constitution has given full faith and credit to public acts. Conduct of a public servant has to be an open book; corrupt would be known to every one. The reputation would gain notoriety. Though legal evidence may be insufficient to bring home the guilt beyond doubt or foolproof. 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 to effectuate the public purpose and constitutional objective. Public servant renders himself accountable to the public. The very cause for suspension of the petitioner and taking punitive action against him was his conduct that led to his prosecution for the offence under the Indian Penal Code. The constitutional animation of public faith and credit given to public acts would be to effectuate the public purpose and constitutional objective. Public servant renders himself accountable to the public. The very cause for suspension of the petitioner and taking punitive action against him was his conduct that led to his prosecution for the offence under the Indian Penal Code. If the conduct alleged is the foundation for prosecution, though it may end in acquittal on appreciation or lack of sufficient evidence, the question emerges whether the government servant prosecuted for commission of defalcation of public funds and fabrication of the records, though culminated into acquittal, is entitled to be reinstated with consequential benefits. In our considered view this grant of consequential benefits with all back wages etc. cannot be a matter of course. We think that it would be deleterious to the maintenance of the discipline if a person suspended on valid considerations is given full back wages as a matter of course on his acquittal. Two courses are open to the disciplinary authority, viz., it may enquire into the misconduct unless, the selfsame conduct was subject of charge and on trial the acquittal was recorded on a positive finding that the accused did not commit the offence at all; but acquittal is not on benefit of doubt given. Appropriate action may be taken thereon. Even otherwise, the authority may, on reinstatement after following the principle of natural justice, pass appropriate order including treating suspension period as period of not on duty (and on payment of subsistence allowance etc.) The Apex Court further held that the employee who is absent from duty on account of his arrest for debt or on a criminal charge or on account of his detention is not to be considered to be absent on account of circumstances beyond his control. His absence throughout such period is to be treated as period spent on extraordinary leave when the absence is not followed by discharge, termination of service or dismissal, as the case may be. The Apex Court further observed that during this period, the employee renders no work. He is absent for reasons of his own involvement in the misconduct and the Bank is in no way responsible for keeping him away from his duties. The Bank, therefore, cannot be saddled with the liability to pay him his salary and allowances for the period. The Apex Court further observed that during this period, the employee renders no work. He is absent for reasons of his own involvement in the misconduct and the Bank is in no way responsible for keeping him away from his duties. The Bank, therefore, cannot be saddled with the liability to pay him his salary and allowances for the period. That will be against the principle of 'no work, no pay' and positively inequitable to those who have to work and earn their pay. As it is, even during such period, the employee earns subsistence allowance by virtue of the Regulations. 17. Again in the case of The Management of Reserve Bank of India, New Delhi v. Bhopal Singh Panchai reported in the Apex Court interpreting Regulations 39, 46 and 47 of the Reserve Bank of India (Staff) Regulation, 1948 held that in case of an employee who is arrested for an offence his period of absence from duty is to be treated as not being beyond circumstances under his control. In such circumstances, when he is treated as being under suspension during the said period, he is entitled to subsistence allowance. However, the subsistence allowance paid to him is liable to be adjusted against his pay and allowances if at all he is held to be entitled to them by the competent authority. The competent authority while deciding whether an employee who is suspended in such circumstances is entitled to his pay and allowance or not and to what extent, if any, and whether the period is to be treated as on duty or on leave, has to take into consideration the circumstances of each case. His acquittal even if it is without blame or his release from detention even if his arrest is not on account of improper conduct on his part, does not automatically entitle the employee to full pay and allowances. The competent authority has to pass an order in each case taking into consideration all circumstances to treat the period of absence as period on duty taking into all relevant consideration circumstances. 18. In the instant case the basis of claim of the petitioner for full back wages is his acquittal in the criminal case. The judgment and order of acquittal in the criminal appeal contains certain positive observations against the petitioner. 18. In the instant case the basis of claim of the petitioner for full back wages is his acquittal in the criminal case. The judgment and order of acquittal in the criminal appeal contains certain positive observations against the petitioner. If the petitioner relies on the same and seeks to take the benefit of appellate judgment then the observations made therein would also be applicable. The observations made in the judgment clearly disclose that the petitioner was negligent in the performance of his duties and on such consideration the Corporation felt not inclined to provide back wages to the petitioner in full the period for which he was not in service. The aforesaid consideration was made by the Corporation upon proper, effective and relevant consideration of the relevant facts germane to the issue involved and no perversity could be shown by the petitioner to this effect. In view of the aforesaid facts and circumstances of the case, the petitioner, having been found negligent in discharging his duty though he was acquitted in the criminal case initiated for misappropriation of Corporation's money he is not entitled to get back wages in full as claimed by him. In my considered opinion, in view of the above discussion, the authority had committed no illegality and/or irregularity in passing the impugned order. I do not find any illegality in the decision making process in arriving such decision by the Corporation. 19. On the allegation of the petitioner for non-consideration of the case of the petitioner for promotion I find that such promotion from lower grade to higher grade is regulated and guided by the service Rules of the Corporation and if the authority has not yet considered the case of the petitioner, certainly the petitioner has the right to be so considered. However, this observation made by me should not be interpreted to be a direction for said promotion. The authority is free to take any decision by following due process of law for promotion to the petitioner in the next higher grade. Subject to the aforesaid observations, this writ petition stands dismissed. No costs. Petition dismissed.