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Madhya Pradesh High Court · body

2008 DIGILAW 608 (MP)

R. P. Upadhyaya v. State of M. P.

2008-04-22

ABHAY M.NAIK

body2008
ORDER : - Facts of the writ petition are in a narrow compass that a Criminal Case punishable under section 161, Indian Penal Code read with section 5 of the Prevention of Corruption Act, 1947 was registered against the petitioner in the year 1984 when he was working as a Tahsildar in Distt. Rewa. After due sanction, the case was tried and the petitioner was ultimately acquitted by the Court of Special Judge, Rewa in Case No. 12/94 on 1-2-1997 (Annexure/P1). Acquittal attained finality for want appeal by the State Government. A Departmental Promotion Committee was convened on 27/28-10-1988 for considering the promotions on the post of Deputy Collector from the post of Tahsildar. Petitioner's case was kept in sealed cover due to pendency of the criminal case whereas certain Tahsildars junior to the petitioner were promoted on 28-8-1989. After acquittal in the criminal case, the petitioner made representation for his consideration for promotion which was ignored. He submitted O.A. No. 77/93 wherein the M. P. State Administrative Tribunal vide its order dated 23-3-1999 (Annexure/A2) directed the State Government to open the sealed cover and give effect to the recommendations of the D.P.C. within a period of three months. It was observed by the Tribunal that the principle of 'no work, no pay' would obviously be not applicable if the petitioner has been on merits honourably exonerated of the charges framed against him. But if he has been acquitted by extending benefit of doubt or due to non-availability of evidence due to acts attributable to the petitioner, then the competent authority shall pass an appropriate order regarding payment of back salary etc. keeping in view the observations made in paragraph-7 of the Janki Raman's case reported as AIR 1991 SC 2010 , Union of India vs. Janki Raman and others. Pursuant to this order, the sealed cover was opened and the petitioner was found suitable for being promoted to the post of Deputy Collector. Accordingly, by order dated 12-6-2000 (Annexure/A-3) the petitioner was promoted as Deputy Collector by giving him notional promotion with retrospective effect from 28-8-1989, that is the date from which his juniors were promoted as Deputy Collector but without pay and allowances. Petitioner was not aggrieved by the seniority which was correctly assigned, however, he made a representation for backwages w.e.f. 28-8-1989 to 3-11-1993 that is the date on which he tookover the charge of Deputy Collector. Petitioner was not aggrieved by the seniority which was correctly assigned, however, he made a representation for backwages w.e.f. 28-8-1989 to 3-11-1993 that is the date on which he tookover the charge of Deputy Collector. The representation was rejected on 23-11-2000. Aggrieved by the same, the petitioner preferred O. A. No. 837/2001 before the M. P. State Administrative Tribunal which on account of its abolition stood transferred to this Court. 2. Contention of the petitioner is that he was completely exonerated from the criminal charge and has not been visited with the penalty even of censure and also that his acquittal in the criminal proceedings has not been proved to be due to non-availability of evidence due to the acts attributable to him hence he is entitled to get arrears of pay and allowances for the intervening period from 28-8-1989 to 3-11-1993 in view of the principles of law laid down in Janki Raman's case (supra). 3. Respondents in their return, contended that the petitioner has not been exonerated honourably. He was acquitted due to non-availability of evidence which does not amount to bona fide exoneration of the charges. Accordingly, the petitioner is not entitled to backwages as has been rightly held by the authorities while rejecting the representation. Reliance has been placed on the decision of Hon'ble Supreme Court in the case of Management of Reserve Bank of India, New Delhi vs. Bhopal Singh Panchal, (1994) 1 SCC 541 . 4. In view of the pleadings and material on record (including the additional pleadings and additional documents), the crucial question before this Court is whether the petitioner is entitled to the salary and allowances of the post of Deputy Collector for the period from 28-8-1989 to 3-11-1993. The M. P. State Administrative Tribunal vide its order Annexure/A-2 dated 23-3-1999 directed as follows :- "In view of this situation, the present petition is partially allowed and it is directed that the recommendation of the Departmental Promotion Committee, pertaining to grant or otherwise of promotion of the petitioners, kept in the sealed cover be now opened positively within a period of one month from the date of communication of this order and the said recommendation should be given effect to within a period of 3 months of communication of this order to the authorities concerned. If according to the said recommendation of the Departmental Promotion Committee, promotion is granted to the petitioner with retrospective effect, then an order should also be passed by the competent authority regarding the aspect as to whether the petitioner shall be entitled to any arrears of pay for the period of notional promotion preceding the date of actual promotion and if so to what extent. Principle of "no work no pay" would obviously be not applicable if the petitioner has been on merits honourably exonerated of the charges framed against him. But if he has been acquitted by extending benefit of doubt or due to non-availability of evidence due to acts attributable to the petitioner, then the competent authority concerned shall pass an appropriate order regarding payment of back salary etc. Keeping in view observations made in para No. 7 of the judgment delivered in Janki Raman's case reported in AIR 1991 SC at page 2010, Union of India vs. Janki Raman and others. This exercise be completed within three months of communication of this order to the respondents No. 1 and 2." 5. Although, the Tribunal directed to pass an appropriate order keeping in view the law laid down by the Apex Court in Janki Raman's case (supra), other judgments of Hon'ble Supreme Court of India are obviously to be taken into consideration in view of Article 141 of the Constitution of India which lays down that law declared by the Supreme Court shall be binding on all Courts within the territory of India. Accordingly, this Court is required to examine the claim of the petitioner with regard to back salary and allowances in the light of various pronouncements discussed below. 6. Special Court of Rewa in its judgment Annexure/A-1 dated 1-2-1997 has clearly observed in paragraph-43 that the evidence of the prosecution is not sufficient to prove the offence against the petitioner punishable under section 161, Indian Penal Code and sections 7, 13(1)(d) read with section 1(2) of Prevention of Corruption Act. Accordingly, the petitioner was acquitted for want of evidence as clearly observed in paragraph-43 itself. 7. Shri Namdeo, learned counsel placed reliance on the Division Bench decision of this Court in the case of Union of India and others vs. Mohd. Accordingly, the petitioner was acquitted for want of evidence as clearly observed in paragraph-43 itself. 7. Shri Namdeo, learned counsel placed reliance on the Division Bench decision of this Court in the case of Union of India and others vs. Mohd. Sharif Khan, 2006(4) M.P.H.T. 140 to contend that in criminal jurisprudence, there is no difference between "clean acquittal", "honourable acquittal" or "acquittal based on giving benefit of doubt". Accordingly, it is contended that there is no justification on the part of the respondents to reject the prayer for backwages on the ground that acquittal of the petitioner was not honourable. He further referred to the Single Bench decision of this Court in the case of Seeta Charan Banwari vs. M. P. Rajya Bhumi Vikas Nigam and another, 2003(4) MPLJ 274 . Accordingly, it is contended that the petitioner could not work during the subject period because he was not allowed to work on the post of Deputy Collector. Shri Namdeo, learned counsel also relied upon the Division Bench decision of this Court in the case of State of M. P. and another vs. Shankar lal Sahu and another, 2001(2) M.P.H.T. 19 which though is based on Janki Raman's case, does not provide any specific guidance for the question involved herein. 8. In Janki Raman's case (supra) it is held :- "The normal rule of "no work no pay" is not applicable to such cases where the employee although he is willing to work is kept away from work by the authorities for no fault of his. This is not where the employee remains away from work for his own reasons, although the work is offered to him." However, in the same case it has been further observed :- "We are therefore, broadly in agreement with the finding of the Tribunal that when an employee is completely exonerated meaning thereby that he is not found blameworthy in the least and is not visited with the penalty even of censure, he has to be given the benefit of the salary of the higher post along with the other benefits from the date on which he would have normally been promoted but for the disciplinary/criminal proceedings." 9. It is true that in criminal jurisprudence no phraseology such as "acquitted honourable" or "clean acquittal" has to be employed necessarily by Criminal Courts. It is true that in criminal jurisprudence no phraseology such as "acquitted honourable" or "clean acquittal" has to be employed necessarily by Criminal Courts. Yet the interpretation clause of the Indian Evidence Act, 1872 defines "Proved", "Disproved" and "Not proved" in the following manner :- "Proved" - A fact is said to be proved when, after considering the matter before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. "Disproved" - - A fact is said to be disproved when, after considering the matters before it, the Court either believes that it does not exist, or considers its non-existence so probable that prudent man ought, under the circumstances of the particular case, to act upon the supposition that it does not exist. "Not proved" - A fact is said not to be proved when it is neither proved nor disproved. 10. An employee is said to be completely exonerated when he is not found blameworthy in the least. It implies that the charges against such employee must be found to be disproved. If an employee is exonerated on account of insufficient evidence, he cannot necessarily said to be completely exonerated for the purpose of the backwages, though, he may be said to be exonerated fully for the purpose of reinstatement, when he was removed on account of criminal proceedings. In case of any other interpretation, an employee against whom the criminal charges are disproved and an employee against whom the criminal charges are merely not proved for want of sufficient evidence will be on same footing for the purpose of backwages which perhaps may not be the intention of the Apex Court while mentioning that an employee is completely exonerated when he is not found blameworthy in the least. It is true that even in case of acquittal on account of want of proper and sufficient evidence, an accused may not be blamed but it is equally true that he cannot be said to have been found totally unblameworthy as required by the Apex Court in Janki Raman's case (supra). Interpretation clause contained in section 3 of the Evidence Act has drawn a clear distinction between the words "not proved" and "disproved". Interpretation clause contained in section 3 of the Evidence Act has drawn a clear distinction between the words "not proved" and "disproved". Accordingly, a criminal charge is said to be not proved when it is neither proved nor disproved. It may be on account of shortage of evidence or any other technical reason that an accused may be acquitted because the charge is not proved. On the other hand, a fact is said to be disproved when, after considering the matters before it, the Court either believes that it does not exist, or considers its non-existence so probable that prudent man ought, under the circumstances of the particular case, to act upon the supposition that it does not exist. It is a later situation which entitles an employee acquitted of criminal charges to claim backwages as of right. An employee who is acquitted on account of insufficiency of evidence, or on account of any technical flaw, cannot therefore legally claim the backwages as of right by invoking the law laid down by the Apex Court in Janki Raman's case. 11. In a later case of Management of Reserve Bank of India, New Delhi vs. Bhopal Singh Panchal, (1994) 1 SCC 541 the Apex Court was dealing with the concept of 'honourable acquittal". In regulation 46 of the Reserve Bank of India, there was a provision where an employee has been dismissed in pursuance of sub-section (3) and the relevant conviction is set aside by the higher Court and the employee is acquitted honourably, he will be reinstated in service, hi this case, the employee was acquitted by the High Court by giving the benefit of doubt. Bank refused to reinstate the employee. Central Government Industrial Tribunal ordered the Bank to reinstate the employee. The Bank reinstated him in service. However, with regard to the difference in the amount paid to the employee towards subsistence allowance, he submitted an application before Central Government Labour Court which was allowed. The matter came-up before Hon'ble Supreme Court which observed that when the High Court on November, 21 gave the benefit of doubt, the Bank rightly refused to reinstate him in the services on the ground that it was not an honourable acquittal as required by Regulation 16(4). The matter came-up before Hon'ble Supreme Court which observed that when the High Court on November, 21 gave the benefit of doubt, the Bank rightly refused to reinstate him in the services on the ground that it was not an honourable acquittal as required by Regulation 16(4). The Apex Court further observed :- "The competent authority while deciding whether an employee who is suspended in such circumstances is entitled to his pay and allowances 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. It is only if such employee is acquitted of all blame and is treated by the competent authority as being on duty during the period of suspension that such employee is entitled to full pay and allowances for the said period. In other words, the Regulations vest the power exclusively in the Bank to treat the period of such suspension on duty or on leave or otherwise. The power thus vested cannot be validly challenged. 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 to 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. In the circumstances, the Bank's power in that behalf is unassailable." 12. Broadly speaking, cases of acquittal may be divided in following categories :- (i) acquittal based on the finding that the charges are disproved. (ii) all possible evidence is produced but the same is insufficient to uphold the employee guilty of charges. (iii) certain important evidence is withheld for the reasons best known to prosecution causing shortage of cogent evidence to uphold the guilt, (iv) acquittal due to technical flaws like limitation or want of necessary sanction etc. (v) acquittal for want of proper and sufficient evidence due to the acts attributable to the employee himself. (iii) certain important evidence is withheld for the reasons best known to prosecution causing shortage of cogent evidence to uphold the guilt, (iv) acquittal due to technical flaws like limitation or want of necessary sanction etc. (v) acquittal for want of proper and sufficient evidence due to the acts attributable to the employee himself. In category (i) and (ii), the accused may be definitely said to have been found totally unblameworthy or not blameworthy in the least and shall be entitled to full backwages and allowances as of right. In case of acquittal under category (v) the employee would not entitled to backwages. However, in cases of acquittal under category (iii) and (iv), an accused cannot be said to have been found totally unblameworthy and the departmental authority shall have to examine each such case meticulously without entertaining an anti-employee feeling. Apex Court in Janki Raman's case has held that an employee is entitled to full backwages if he is not found blameworthy in the least in criminal proceedings. At times, criminal Courts do not give specific finding about unblameworthiness of the accused and acquit the accused by extending benefit of doubt. An employee/accused cannot be blamed in such matter and cannot be made to suffer for such verdicts of criminal Courts. Absence of finding about unblameworthiness due to working manner of criminal Courts does not necessarily lead to an inference against the employee. In such a situation there would be greater responsibility on departmental authority to examine the case of an employee with greater caution to ascertain that whether accused employee may be said to be blameworthy and if yes, to what extent. Accordingly, backwages may be granted or denied in appropriate proportions. 13. In the light of the aforesaid discussion, it may be seen that the respondents have not decided the claim of the petitioner with regard to backwages and allowances in the light of aforesaid parameters. Annexure/A-5 dated 23-11-2000 is totally an unreasoned order. Respondents have not made any exercise to determine whether the petitioner in the light of the judgment of the criminal Court could be said to have been found blameworthy in the least or totally unblameworthy in the incidence leading to his trial in the criminal case. Without making such an exercise, the claim of the petitioner could not have been legally declined in the impugned manner. 14. Without making such an exercise, the claim of the petitioner could not have been legally declined in the impugned manner. 14. In the result, petition is allowed in part to the extent that Annexure/P-5 is hereby quashed. Respondents are hereby directed to determine on the basis of judgment of Criminal Court that whether the petitioner was found totally unblameworthy. In case, if, the petitioner is found blameworthy then to what extent he may be blamed. Accordingly, his claim for backwages and allowances may be decided without entertaining an anti-employee feeling. It is made clear that in case, if, the petitioner is found entitled to the backwages and allowances, he would also be entitled to interest @ 6% per annum from the date of entitlement. Necessary orders and payment shall follow the same. The entire aforesaid exercise shall be made within a period of three months from the date of receipt of certified copy of this order. 15. Petition, accordingly stands disposed of in the aforesaid terms. No order as to costs. Petition partly allowed.