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2009 DIGILAW 577 (JHR)

Panchdeo Singh v. Bharat Coking Coal Limited

2009-04-20

D.K.SINHA, M.Y.EQBAL

body2009
JUDGMENT : M. Y. Eqbal, J. In the instant appeal, the short question that falls for consideration is as to whether the appellant after acquittal in a criminal case is entitled to back wages. The learned Single Judge in terms of impugned judgment passed in W.P. (S) No.5029 of 2003 did not interfere with the order passed by the authority rejecting his claim of back wages. 2. The facts of the case lie in a narrow compass: 3. The appellant was working as Fan Operator/Switch Board Attendant at Angarpathra Colliery, Katras, a unit of M/s. Bharat Coking Coal Limited. It appears that he was involved in a criminal case under Section 302/149 of the Indian Penal Code and he was convicted by the Court of Sessions Judge in terms of judgment dated 23.12.1988 and was sentenced to undergo life imprisonment. In view of the conviction of the appellant in a criminal case, he was dismissed from service with effect from 22.4.1989. However, against the said judgment of conviction, the appellant preferred appeal which was dismissed by the High Court in terms of judgment dated 14.9.1999. Thereafter, the appellant moved before the Supreme Court and the appeal was allowed by the Supreme Court and order of conviction and sentence was set aside in terms of judgment dated 7.12.2001. Consequent upon the acquittal, the appellant made a representation before the concerned respondents praying for his reinstatement with effect from 22.4.1989, but the same was rejected. The petitioner then moved this Court by filing a writ petition being W.P. (S) No. 3211 of 2002 which was allowed in terms of order dated 30.4.2001 and the order of refusal of reinstatement passed by the authority was set aside and the matter was remitted back to the respondents for its reconsideration. The petitioner then filed another representation for his reinstatement and also for payment of back wages. On consideration of the representation, the concerned authority in terms of order dated 28.4.2003 held that the petitioner is entitled to reinstatement in service but he is not entitled to back wages and consequential benefits. The petitioner thereafter joined the service on 23.6.2003. The petitioner again filed a representation before the concerned authority for payment of back wages, but nothing was done. 4. Aggrieved by the order denying back wages, the petitioner moved this Court by filing a writ petition being W.P. (S) No.5029 of 2003. The petitioner thereafter joined the service on 23.6.2003. The petitioner again filed a representation before the concerned authority for payment of back wages, but nothing was done. 4. Aggrieved by the order denying back wages, the petitioner moved this Court by filing a writ petition being W.P. (S) No.5029 of 2003. Learned Single Judge, however, after considering the ratio decided by the Supreme Court in the case Allahabad Jal Sansthan Vs. Daya Shankar Rai & anr [ 2005 (3) P.L.J.R (S.C.) Page 34] and in the case of Union of India and others Vs. Jaipal Singh [ (2004) 1 S.C.C. 121 ], dismissing the writ application holding that the appellant is not entitled to back wages. 5. Mr. M.K. Laik, learned counsel appearing for the appellant, assailed the impugned judgment mainly on the ground that the learned Single Judge has not discussed the ratio decided by the Supreme Court in Jaipal Singh’s case (supra). According to the learned Single Judge, the appellant is at least entitled to get back wages from the date of his acquittal in a criminal case. Mr. Ashutosh Anand, learned counsel appearing for the respondents, on the other hand, submitted that the learned Single Judge has rightly dismissed the writ application in the light of the decision of the Supreme Court in Jaipal Singh’s case (supra). 6. As stated above, the question that falls for consideration is as to whether the appellant is entitled to back wages in the facts and circumstances of the case? Before coming to the conclusion, we would like to discuss the ratio decided by the Supreme Court. 7. In the case of Ranchhodji Chaturji Thakore Vs. Superintendent Engineer Gujarat Electricity Board and another [ (1996) 11 S.C.C. 603 ], the fact of the case was that the petitioner who was the employee of Gujarat State Electricity Board was charged for an offence under Sections 302 read with 34 I.P.C. for his involvement in a crime. The Sessions Judge convicted the petitioner under Section 302 read with Section 34 of the I.P.C. and sentenced him to undergo imprisonment for life. On that basis, petitioner was dismissed from service. The petitioner then challenged the validity of the dismissal order by way of application under Article 226 of the Constitution of India. However, pending disposal, the Division Bench of the High Court in terms of judgment dated 14.10.1992 acquitted him of the offence. On that basis, petitioner was dismissed from service. The petitioner then challenged the validity of the dismissal order by way of application under Article 226 of the Constitution of India. However, pending disposal, the Division Bench of the High Court in terms of judgment dated 14.10.1992 acquitted him of the offence. Consequently, while disposing of the writ petition, learned Single Judge directed the respondents to reinstate him into service with continuity, but denied back wages. Petitioner then filed Letters Patent Appeal which was dismissed by the Division Bench of the High Court. Petitioner then preferred Special Leave Petition before the Supreme Court. While dismissing the S.L.P., the Supreme Court observed as under: - “3. The reinstatement of the petitioner into the service has already been ordered by the High Court. The only question is whether he is entitled to back wages. It was his conduct of involving himself in the crime that was taken into account for his not being in service of the respondent. Consequent upon his acquittal, he is entitled to reinstatement for the reason that his service was terminated on the basis of the conviction by operation of proviso to the statutory rules applicable to the situation. The question of back wages would be considered only if the respondents have taken action by way of disciplinary proceedings and the action was found to be unsustainable in law and he was unlawfully prevented from discharging the duties. In that context, his conduct becomes relevant. Each case requires to be considered in its own backdrop. In this case, since the petitioner had involved himself in a crime, though he was later acquitted, he had disabled himself from rendering the service on account of conviction and incarceration in jail. Under these circumstances, the petitioner is not entitled to payment of back wages. The learned Single Judge and the Division Bench have not committed any error of law warranting interference.” 8. The aforesaid decision of the Supreme Court was followed in the case of Union of India and others Vs. Jaipal Singh [ (2004) 1 S.C.C. 121 ]. In that case, the respondents was involved in a criminal case under Section 302 read with Section 34 of the Indian Penal Code along with his brother and after he was convicted by the Addl. Sessions Judge, but on appeal before the High Court, the Division Bench acquitted him from the charges. Jaipal Singh [ (2004) 1 S.C.C. 121 ]. In that case, the respondents was involved in a criminal case under Section 302 read with Section 34 of the Indian Penal Code along with his brother and after he was convicted by the Addl. Sessions Judge, but on appeal before the High Court, the Division Bench acquitted him from the charges. As a consequence thereto, he moved the concerned authority for reinstatement after acquittal and when the same was not done, he filed a writ application in the High Court which was allowed. Aggrieved by the order, the Union of India moved the Supreme Court. While allowing the S.L.P., the Supreme Court held as under: “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 rejecting a special leave petition at the threshold without detailed reasons therefor 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 therefor 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. 6. The appeal is allowed and disposed of on the above terms.” 9. In the case of State of Kerala and others Vs. E.K. Bhaskaran Pillai [ (2007) 6 S.C.C. 524 ], the fact was as to whether in case of grant of retrospective promotion, an employee would be entitled to back wages. Answering the question, the Supreme Court observed as under: - “4. Learned counsel for the State has submitted that grant of retrospective benefit on promotional post cannot be given to the incumbent when he has not worked on the said post. Therefore, he is not entitled to any benefit on the promotional post from 15-6-1972. In support thereof, the learned counsel invited our attention to the decisions of this Court in Paluru Ramkrishnaiah v. Union of India1, Virender Kumar v. Avinash Chandra Chadha, State of Haryana v. O.P. Gupta, A.K. Soumini v. State Bank of Travancore and Union of India v. Tarsem Lal. In support thereof, the learned counsel invited our attention to the decisions of this Court in Paluru Ramkrishnaiah v. Union of India1, Virender Kumar v. Avinash Chandra Chadha, State of Haryana v. O.P. Gupta, A.K. Soumini v. State Bank of Travancore and Union of India v. Tarsem Lal. As against this, the learned counsel for the respondent has invited our attention to the decisions given by this Court in Union of India v. K.V. Jankiraman, State of A.P. v. K.V.L. Narasimha Rao, Vasant Rao Roman v. Union of India and State of U.P. v. Vinod Kumar Srivastava. We have considered the decisions cited on behalf of both the sides. So far as the situation with regard to monetary benefits with retrospective promotion is concerned, that depends upon case to case. There are various facets which have to be considered. Sometimes in a case of departmental enquiry or in criminal case it depends on the authorities to grant full back wages or 50 per cent of back wages looking to the nature of delinquency involved in the matter or in criminal cases where the incumbent has been acquitted by giving benefit of doubt or full acquittal. Sometimes in the matter when the person is superseded and he has challenged the same before court or tribunal and he succeeds in that and direction is given for reconsideration of his case from the date persons junior to him were appointed, in that case the court may grant sometimes full benefits with retrospective effect and sometimes it may not. Particularly when the administration has wrongly denied his due then in that case he should be given full benefits including monetary benefit subject to there being any change in law or some other supervening factors. However, it is very difficult to set down any hard-and-fast rule. The principle “no work no pay” cannot be accepted as a rule of thumb. There are exceptions where courts have granted monetary benefits also.” 10. It is well settled that an employee cannot, as a matter of right, claim back wages from the date of dismissal till the date of reinstatement. Each case requires to be considered in its own back drop. There are exceptions where courts have granted monetary benefits also.” 10. It is well settled that an employee cannot, as a matter of right, claim back wages from the date of dismissal till the date of reinstatement. Each case requires to be considered in its own back drop. For example, if an employee got involved in a criminal case and convicted but subsequently gets acquittal and the department has no concern with the criminal case in which the employee was involved then in such cases the employee cannot be entitled to back wages from the date of dismissal till the date of acquittal inasmuch as the department cannot in any manner be found fault for having kept him out of service. 11. In the instant case, as noticed above, the appellant was involved in a criminal case and was convicted, however, finally the appellant was acquitted in terms of the order dated 7.12.2001 passed by the Supreme Court. After acquittal the appellant filed representation before the concerned authority of the respondents and the latter refused to reinstate him in service by order dated 30.4.2001. The appellant then moved this Court in WPC No.3211/2002,which was allowed and the order dated 30.4.2001 passed by the authority was set aside. The matter was remitted back to the respondents for reconsideration of the representation of the petitioner and for taking a decision with regard to reinstatement in service. It was only thereafter the order of reinstatement was passed on 28.4.2003 but without any back wages. Admittedly the appellant was dismissed from service solely on the ground that he was convicted and sentenced for life imprisonment in a criminal case and not on any other ground. After acquittal in criminal case when a representation was filed by the appellant for his reinstatement and for back wages, the same ought not to have been rejected in terms of order dated 30.4.2001, which was ultimately set aside by this Court in WPC No.3211/2002. 12. In the facts and circumstances of the case, the appellant may not be entitled to back wages from the date of acquittal in a criminal case but certainly from 30.4.2001 when his representation for reinstatement was rejected without any valid ground. 12. In the facts and circumstances of the case, the appellant may not be entitled to back wages from the date of acquittal in a criminal case but certainly from 30.4.2001 when his representation for reinstatement was rejected without any valid ground. Admittedly, the appellant remained out of service from the date of dismissal till the date of acquittal not on the fault of the department but certainly he remained out of service from 30.4.2002 because of the wrong decision taken by the department refusing to reinstatement him in service. In that view of the matter, at least the appellant will be entitled to back wages from 30.4.2002. This aspect of the matter has not been considered by the learned Single Judge. 13. We, therefore, allow this appeal in part and hold that the appellant shall be entitled to 50% back wages from 30.4.2001 till the date of his reinstatement in service.