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2007 DIGILAW 974 (ALL)

SHIV JAGAT PANDEY v. STATE OF U P

2007-04-13

ARUN TANDON

body2007
ARUN TANDON, J. Heard Sri Vipin Bihari, learned Counsel for petitioner and Sri C. B. Yadav, learned Chief Standing Counsel for respondents. 2. These two writ petitions have been filed by Shiv Jagat Pandey (petitioner), who was appointed as temporary constable in Provincial Armed Constabulary (for short pac) and posted at 14th Batalion, 37th Vahini, PAC, Kanpur. Under an order dated 14th November, 1973, the Governor in exercise of powers under Article 311 (2) decided to dismiss the said constable from service. The reasons disclosed from the record is that the petitioner was involved in PAC revolt of 1973, which had resulted in Crime Case No. 506 of 1973 under Sections 147, 148, 149, 302, 307, 324, 326, 380, 457, 397, 121/121-A of the Indian Penal Code being registered at Police Station Chhavani, Kanpur Nagar. The sessions trial resulted in a judgment of the Additional Sessions Judge, Kanpur Nagar dated 23rd December, 1981, whereby large number of PAC constables were convicted of the offence of which they were charged. Against the said judgment of the Sessions Court, large number of Criminal Appeals were filed including Criminal Appeal No. 479 of 1982 filed by the present petitioner, Shiv Jagat Pandey. The appeal was heard by two Honble Judges of this Court and two different orders were passed for the purposes of allowing the appeal filed by the petitioner (Shiv Jagat Pandey ). Judgments delivered by two Honble Judges separately on 21st December, 1992 qua Criminal Appeal No. 479 of 1982 read as follows : "criminal Appeal No. 479 of 1982 (wrongly typed as 478 of 1982 ). Shiv Jagat Pandey v. State (156) Shiv Jagat Pandey of e company had been identified by Sheo Kumar Tripathi P. W. 14 and Mohd. Naqui P. W. 25. The statement of these witnesses cannot be taken into consideration for convicting an accused. The appeal of Shiv Jagat Pandey is allowed. His conviction and sentences awarded to him are set aside. He is acquitted of all the charges levelled against him. He is on bail. He need not surrender to his bail bonds which are discharged. " "criminal Appeal No. 479 of 1982. Shiv Jagat Pandey e Company : This appeal is allowed. He was not an injured accused. He was not on duty nor he has been named by two witnesses. Therefore, his participation in the incident is doubtful. He is on bail. He need not surrender to his bail bonds which are discharged. " "criminal Appeal No. 479 of 1982. Shiv Jagat Pandey e Company : This appeal is allowed. He was not an injured accused. He was not on duty nor he has been named by two witnesses. Therefore, his participation in the incident is doubtful. He is entitled to the benefit of doubt and acquittal. He is on bail. He need not surrender and his bail bonds are discharged. " 3. On the strength of the said acquittal, petitioner filed Civil Misc. Writ Petition No. 20080 of 1993 for being restored back in service. The writ petition was disposed of vide judgment and order dated 22nd November, 1996 with a direction upon the petitioner to make a representation before the authority concerned. Petitioner filed representation before the authority concerned for reinstatement, request was not accepted, therefore, petitioner alongwith other persons filed Civil Misc. Writ Petition No. 19828 of 1998. On 17th September, 1998, the writ petition was also disposed of with a direction upon the respondents to decide the representations of the petitioners within the time specified. 4. In the meantime the State Government came out with a Government Order dated 7th September, 1998, which provided for re-consideration of the claim of the P. A. C. Constables, who had been removed from service because of participation in the 1973 P. A. C. Revolt (copy has been enclosed as Annexure-6 to writ petition No. 36194 of 1999 ). The Government Order dated 7th September, 1998 categorized the Constables, who had been dismissed from service because of participation in 1973 Revolt in following Categories : (a) Permanent constables, who had been dismissed under the order of the Governor, (b) Temporary constables who had been dismissed from service after one months notice or salary in lieu thereof. 5. It was clarified that in respect of (b) category constables, whose services were terminated because of their participation in 1973 P. A. C. Revolt on the ground that their services were no longer required being temporary employees would not be entitled to the benefits of the orders of the Honble High Court dated 13th March, 1997 and dated 26th September, 1997 passed in various writ petitions. It was clarified that the representations made by such employees be rejected and in case any difficulty is faced by the concerned officer, he may seek legal opinion. 6. By means of the Government Order dated 13th November, 1998 (Annexure-7 to the writ petition No. 36194 of 1999), a further clarification was provided and it was stated that the representation made by such temporary constables, who had been dismissed under the order of the Governor in the background of their participation in the 1973 P. A. C. Revolt, may be considered and decided keeping in mind that under Article 311 (2) of the Constitution of India, the Governor has power to dismiss such employees either after months notice or one months pay in lieu thereof. 7. Petitioner was reinstated under an order dated 6th March, 1999 passed by the Commandant, 37 Vahini P. A. C. , Kanpur with reference to Government Order dated 7/17th September, 1998 on the ground that petitioner fulfilled the requirements of all the conditions mentioned in the Government Order. However, on 6th August, 1999 the Commandant, 37 Vahini P. A. C. , Kanpur revoked the order of reinstatement, as directed vide order dated 6th March, 1999 on the ground that it was contrary to the terms and conditions mentioned in the Government order dated 7/17th September, 1998. 8. Feeling aggrieved by the said order of the Commandant, petitioner filed Civil Misc. Writ Petition No. 36194 of 1999. This Court vide order dated 24th August, 1999 stayed the operation of the order dated 6th August, 1999. In compliance of the interim order of this Court dated 24th August, 1999, the Commandant passed an order dated 6th April, 2000, which provided that the petitioner is being reinstated and that in respect of back-wages and other allowances, separate orders shall be passed, after obtaining instructions from the State Government. Petitioner claims to be working since then and is being paid salary regularly. 9. The State Government vide order dated 15th April, 2004 came out with a policy decision, wherein it was recorded that Constables involved in 1973 P. A. C. Revolt, who have since been reinstated shall not be paid salary for the period they had remained out of employment on the Principle of no Work, No Pay. However, it was provided that such period would be counted for the purposes of determination of pension. However, it was provided that such period would be counted for the purposes of determination of pension. In view of the Government Order dated 15th April, 2004, the Commandant, 37 Vahini, P. A. C. Kanpur, vide order dated 20th November, 2004, directed to reduce the salary and recovery of the excess salary paid to the petitioner. 10. Feeling aggrieved by the aforesaid Government Order dated 15th April, 2004 as well as by the consequential order dated 20th November, 2004, petitioner filed Civil Misc. Writ Petition No. 6599 of 2006 (2nd writ petition ). 11. Learned Counsel for the petitioner has placed reliance upon the Division Bench Judgment of this Court passed in Special Appeal No. 110 of 2000, State of U. P. v. Gajadhar Pandey, Judgments of the Honble Supreme Court in the case of (i) Ramesh Chander & Ors. v. Delhi Administration & Ors. reported in 1006 S. C. S. R. (15) 726, (ii) judgment passed in Civil Appeal No. 1844 of 1984, Maharaja Sayajirao University of Baroda & Ors. v. Sri R. S. Thakar decided on 27th January, 1988, (ii) Burn Standard Company Ltd. v. Tarun K. Chakarwarti, reported in S. C. C. (L&s) 1015, specifically Para-7 as well as in the case of (iv) Union of India v. K. V. Janki Raman reported in 1991 (Vol. 5) S. L. R. 602, Paragraph-25, for the proposition that reasons for denial of back-wages must be supported by cogent reasons, as well as for the proposition that the normal rule of "no work no pay" is not applicable in cases such as the present one where the employee although he is willing to work, is kept away from duties by the authorities for no fault of the employee. Learned Counsel submits that this is not a case where the employee has remained away from work on his own despite the work being offered to him. 12. With regard to the order dated 6th August, 1999, it is contended that since the petitioner has been acquitted of the criminal charges, the basis for the order dismissing him from service, has become non- existent, and therefore, the petitioner is entitled for reinstatement with full back-wages. 12. With regard to the order dated 6th August, 1999, it is contended that since the petitioner has been acquitted of the criminal charges, the basis for the order dismissing him from service, has become non- existent, and therefore, the petitioner is entitled for reinstatement with full back-wages. Reliance in that regard has been placed upon the Division Bench Judgment of this Court in the case of State of U. P. v. Gajadhar Pandey, passed in Special Appeal No. 110 of 2000, decided on 15th November, 2002, wherein the Division Bench has held that State Government cannot refuse similar treatment to the appellants on the ground that they were temporary, inasmuch as punishment of all such Constables involved in P. A. C. Revolt was one and for the same reason. It has been recorded that absolutely no enquiry had taken place and therefore, there cannot be different treatment for different Constables, may be even if their services were temporary in nature. 13. Learned Standing Counsel on the other hand submits that all original records pertaining to the appointment of the petitioner are required to be examined and terms and condition mentioned therein need consideration before he may be reinstated. Learned Standing Counsel further points out that in view of the judgments of two Honble Judges passed in Criminal Appeal No. 479 of 1982 filed by Sri Shiv Jagat Pandey (petitioner) (quoted above), it logically follows that the petitioner has been acquitted after giving benefit of doubt. In such circumstances, the Authorities are under legal obligation to examine as to whether the Constable is to be proceeded with departmentally or not. 14. He further submits that the reinstatement of the petitioner, as was directed under order dated 6th March, 1999 was based on non-consideration of the conditions mentioned in the Government Order dated 7/17th September, 1998, which applied only in respect of permanent constables only. Said Government Order itself contemplates that temporary constables, who have been dismissed under order of the Governor, are not entitled to such reinstatement. 15. The Government Order dated 7/17th September, 1998 was not challenged by the petitioner at any point of time nor the petitioner has made any prayer in this petition for quashing the Government Order. Said Government Order itself contemplates that temporary constables, who have been dismissed under order of the Governor, are not entitled to such reinstatement. 15. The Government Order dated 7/17th September, 1998 was not challenged by the petitioner at any point of time nor the petitioner has made any prayer in this petition for quashing the Government Order. It is pointed out that the petitioner has not disclosed as what order was passed on the representation, which was directed to be considered under the judgment and order of this Court dated 22nd November, 1996 passed in Civil Misc. Writ Petition No. 20080 of 1993. 16. Learned Standing Counsel lastly submits that the decision of the State Government with regard to the reinstatement of the employees involved in 1973 P. A. C. revolt was clarified under Government Orders dated 7th September, 1998 and 13th November, 1998 (these orders have also not been challenged by the petitioner till date ). He, therefore, submits that entire case of the petitioner qua his reinstatement requires consideration by the authorities in light of the judgments of this Court as well as in light of the policy decision taken by the State Government and the facts applicable. 17. So far as the payment of back-wages to the petitioner for the period he was out of employment between 1973 to September, 1998 i. e. 25 years, is concerned, the learned Standing Counsel submits that the petitioner admittedly did not challenge his dismissal for a period of 20 years. He approached this Court for relief of reinstatement for the first time in the year 1993. There is no averment on record that petitioner has not gainfully employed during all these years. Learned Standing Counsel further submits that payment of back-wages to persons like the petitioner, (who were initially appointed on temporary basis), covering a period of 25 years have not discharged duties in the employment of the State Government would amount to payment for no work and would amount to fraud on public exchequer. Public money cannot be permitted to be utilised for payment of salary to persons who actually do not discharge duties in the employment of the State Government. 18. I have heard learned Counsel for the parties and have gone through the records of the present writ petition. 19. Public money cannot be permitted to be utilised for payment of salary to persons who actually do not discharge duties in the employment of the State Government. 18. I have heard learned Counsel for the parties and have gone through the records of the present writ petition. 19. Petitioner in both the writ petitions has not disclosed the date and mode and manner adopted for offering appointment to him as Constable in 14th Vahini, P. A. C. Kanpur. The period for which he had actually worked in the employment of the State Government nor a copy of the appointment letter has been brought on record. The only order in that regard on record is an order dated 14th November, 1973, wherein the Governor of the State of Uttar Pradesh is said to have dismissed the petitioner from service in exercise of power under Article 311 (2) proviso C treating the petitioner to be a temporary Constable. 20. It is further not in dispute that this order of termination was not challenged by the petitioner within reasonable time. He faced criminal trial in respect of the charges noticed herein above, which resulted in his conviction at the sessions trial. The Criminal Appeal No. 479 of 1999 filed by him was finally allowed by the Division Bench of this Court under judgment and order dated 21st December, 1992. The judgment delivered by two Honble Judges separately in the appeal has already been quoted herein above. In view of the judgment of the Division Bench of this Court it may be recorded that the petitioner cannot be said to have been acquitted to all charges. As a matter of fact in view of the judgment of one of the Honble Judges it is to be presumed that the petitioner has been granted benefit of doubt only for the purposes of acquittal. 21. It was only after the petitioner was acquitted in the aforesaid criminal case that he chose to file writ petition No. 20080 of 1993 for reinstatement i. e. after 20 years of his dismissal. The writ petition was decided under an order dated 20th November, 1996 with liberty to the petitioner to make a representation, which was to be decided by the authorities concerned, within two months from the date of production of the order of the Court. The writ petition was decided under an order dated 20th November, 1996 with liberty to the petitioner to make a representation, which was to be decided by the authorities concerned, within two months from the date of production of the order of the Court. The decision (if any) as per the order of the Court has not been disclosed. The Commandant, 37 Vahini P. A. C. Kanpur directed reinstatement of the petitioner with reference to the Government Order dated 7th/17th September, 1998. The Government Order dated 7/17th September, 1998 apparently does not have any application qua the case of the petitioner, inasmuch as it pertains to the reinstatement of Constables, who were employed on permanent basis and had been dismissed by the Governor in exercise of power under Article 311 (2) proviso C. On the contrary the said Government Order specifically provided temporary constables, whose services have been terminated after one month notice or salary in lieu thereof would not be entitled to reinstatement. It is, thus, apparent that the Government Order dated 7/17th September, 1998 did not apply to the case of the petitioner, inasmuch as he was temporary constable, whose services have been terminated under order of the Governor in exercise of power under Article 311 (2) proviso C. The said facts on being brought to the knowledge of the Commandant, he rightly passed the order dated 6th August, 1999 revoking the order dated 6th March, 1999. 22. In the opinion of the Court the order dated 6th August, 1999 is legally justified inasmuch as reinstatement, which was directed in favour of petitioner, was based on complete misreading of the Government Order dated 7/17th September, 1998 which was binding upon the Subordinate Police authorities, namely, the Commandant. Consequently the order dated 6th August, 1999, which has the effect of correcting the mistake committed earlier cannot be faulted with in any manner. 23. The issue, which survives is as to whether the petitioner, who had been dismissed under order of the Governor because of his participation in 1973 P. A. C. Revolt is entitled to be reinstated because of his acquittal as recorded in the criminal appeal No. 479 of 1982. 24. It is no doubt true that the Honble Supreme Court of India in the case of Kanhailal v. Distt. Judge & Ors. 24. It is no doubt true that the Honble Supreme Court of India in the case of Kanhailal v. Distt. Judge & Ors. , reported in AIR 1983 SC 351 , has held that in case the motive for dismissing a temporary Government servant is a misconduct, the provisions of Article 311 (2) of the Constitution of India would be applicable and such an employee cannot be dismissed from service without holding a departmental enquiry unless and until a satisfaction is recorded by the authority that it is practically not possible to hold such an enquiry. At the same time the Honble Supreme Court of India in the case of Nelson Motis v. Union of India & Ors. , reported in 1992 (4) SCC 711, has held as follows : "so far the first point is concerned, namely whether the disciplinary proceedings could have been continued in the face of the acquittal of the appellant in the criminal case, the plea has no substance whatsoever and does not merit a detailed consideration. The nature and scope of a criminal case are very different from those of a departmental disciplinary proceeding and an order of acquittal, therefore, cannot conclude the departmental proceeding. " 25. Accordingly the authorities have to apply their mind independently, as to whether such person should be proceeded with departmentally or not. 26. The Court has also to keep in mind that the Division Bench of this Court in Special Appeal No. 110 of 2000, State of U. P. v. Gajadhar Pandey, decided on 15th November, 2002 has held that the State cannot discriminate between a temporary constable and a permanent constable in the factual matrix of the case, wherein large number of Constables were dismissed because of participation in P. A. C. Revolt of 1973. 27. In the aforesaid legal background the Court feels that for substantial justice being done between the parties, it would be fair to hold as follows : 28. The petitioner, who has been reinstated under an order dated 6th March, 1999 and has continued under the interim order passed by this Court in the present writ petition would continue to enjoy the benefits of reinstatement and paid future salary from the date of reinstatement i. e. 6th January, 1999 regularly till he attains the age of superannuation subject, however to the other service conditions applicable. He shall be entitled to all other benefits with regard to pension etc. in term of Government Order dated 15th April, 2004. Any excess salary already paid to the petitioner after his reinstatement shall not be recovered. 29. The last issue to be considered is as to whether the petitioner is entitled to back-wages for the period he was out of employment between 1973 to 1998 i. e. 25 years. 30. The controversy with regard to the payment of back-wages to an employee after his dismissal from service has been set aside, has been subject matter of consideration in various judgments of the Honble Supreme Court of India. Suffice is to refer to the judgment in the case of Kendriya Vidyalaya Sangathan & Anr. v. S. C. Sharma, reported in 2005 (2) LBESR 861 (SC) : (2005) 2 SCC 363 , wherein paragraph-16, it has been held as follows : " (16) Applying the above principle, the inevitable conclusion is that the respondent was not entitled to full back wages which according to the High Court was a natural consequence. That part of the High Court order is set aside. When the question of determining the entitlement of a person to back wages is concerned, the employee has to show that he was not gainfully employed. The initial burden is on him. After and if he places materials in that regard, the employer can bring on record materials to rebut the claim. In the instant case, the respondent had neither pleaded nor placed any material in that regard. " 31. Reference may also be had to the Division Bench Judgment of this Court in the case of Brijendra Prakash Kulshrestha v. Director of Education, U. P. Allahabad & Ors. , reported in 2007 (1) LBESR 538 (All) : 2007 (3) ADJ 1 (DB), wherein after considering large number of the judgments of the Honble Supreme Court on the subject. The Division Bench of this Court in Paragraph-35, has held as follows : " (35) Thus, while considering the question of arrears of salary where the employee could not work for an act of the employer which is found to be illegal or unauthorised, the direction for payment of full salary or arrears of salary, is not automatic or mechanical but has to be considered in the light of the numerous attending circumstances and the facts of the case. . . . . . " 32. It is no doubt true that the Honble Supreme Court of India in the cases of Ramesh Chander, Maharaja Sayajirao University of Baroda, Burn Standard Company Ltd. and Union of India (supra) relied upon by the petitioner, has held that once the order of dismissal is declared illegal, (a) refuse of back wages must be for cogent reasons, and (b) back-wages are not to be denied if the employer has refused work while the employee was always willing to perform his duties. 33. At the same time the Honble Supreme Court of India has held that payment of back wages is not a rule of thumb and it is not necessary that in every case, where reinstatement is directed payment of full back wages must follow automatically. 34. It is in the said legal back ground that the factual matrix of the present case may be repeated again by this Court, (a) the date on which, the petitioner was appointed for the first time on temporary basis and for the period he had actually worked before he had been dismissed from service in the year 1973, have not been disclosed by the petitioner, (b) he had admittedly not questioned the order of termination for more than 20 years i. e. upto 1993, (c) there is no averment in the writ petition that the petitioner was not gainfully employed during all this period and (d) absolutely no facts justifying the payment of back-wages have been stated. 35. This Court is not ready to accept that a person would normally remain without any gainful employment for 20 years more so when the legal grounds for challenging the order of termination i. e. violation of Article 311 (2) of the Constitution of India became available to him as soon as he was dismissed from service in the year 1973. 36. In the factual background as noticed above, this Court feels that it would be unfair to tax the public exchequer by directing payment of back-wages to a temporary employee like the petitioner for the period he was not in employment of the State. 37. Accordingly it is held that it would be reasonable and fair to deny back wages to the petitioner for the period he was out of employment, therefore, the relief prayed for in that regard is refused. 0 38. 37. Accordingly it is held that it would be reasonable and fair to deny back wages to the petitioner for the period he was out of employment, therefore, the relief prayed for in that regard is refused. 0 38. The writ petitions are accordingly disposed of finally with the following directions : (1) Petitioner shall be treated to have been reinstated as Constable w. e. f. 6th March, 1999 and paid his future salary regularly. (2) Any excess salary already paid to the petitioner for the period after reinstatement as per the order dated 20th November, 2004 shall not be recovered. (3) Petitioner shall be entitled to the benefits flowing from Government Order dated 15th April, 2004 for the purposes of post retiral benefits only. (4) Petitioner shall not be entitled to any back-wages for the period 1973 to 5th March, 1999. Petition disposed of. .