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2013 DIGILAW 2672 (MAD)

P. Mathirajan v. District Collector, Thanjavur

2013-07-26

S.RAJESWARAN

body2013
Judgment :- 1. The Writ Petition has been filed to call for the proceedings of the 2nd respondent in his proceedings Na.Ka.6942/A3/09 dated 23.09.2009 and quash the condition insofar as it relates to refusal to grant backwages alone for the period from the date of discharge till the date of reinstatement of the petitioner in service and direct the 2nd respondent to pay the backwages to the petitioner for the period of unemployment. 2. The case of the petitioner as given in the affidavit filed in support of the writ petition is that he was working as a Drawing Master in the Government Higher Secondary School, Perumagalur. On a false complaint foisted, a case in Cr.No.61/1999 was registered against him before the Vattathikottai Police Station and on trial in S.C.No. 46/2000, he was found guilty and he was convicted. Challenging the said conviction and sentence, the petitioner and another similarly placed person preferred Crl.A.Nos.1176 and 1180 of 2000 before the Principal Bench of this Court, Madras. Finally, the said appeal was allowed by the Principal Bench of this Court, Madras on 26.02.2008 holding that the prosecution had failed to prove the charges. While the appeal was pending adjudication, a show-cause notice in Na.Ka.No.13432/A3/2000 by the Chief Educational Officer, Thanjavur, dated 20.12.2000, was issued to the petitioner calling upon him to give explanation as to why he should not be removed from service. Even though satisfactory explanation was offered by the petitioner, he was removed from the service invoking Rule 17(c) of Tamil Nadu Government Civil Services (Disciplinary and Appeal) Rules, on 16.07.2001, by the Chief Educational Officer, Thanjavur District, second respondent herein. But there were no charges framed and no enquiry was conducted before passing the order of removal from the department. Even the backwages have not been released for the period during which he was removed from service. Once he has been acquitted in a criminal case on merits, it is deemed that he has never committed that offence. Therefore, denial of the backwages is opposed on all canons of law. Moreover, the order of acquittal, will operate retrospectively and all the service benefits should be given to him. On the basis of the order of acquittal, the second respondent passed an order of reinstatement, vide his order dated 23.09.2009. But it was ordered that he was not eligible to get salary for the period of removal from service. Moreover, the order of acquittal, will operate retrospectively and all the service benefits should be given to him. On the basis of the order of acquittal, the second respondent passed an order of reinstatement, vide his order dated 23.09.2009. But it was ordered that he was not eligible to get salary for the period of removal from service. Hence, the petitioner has filed the present writ petition with the above said prayer, challenging the order of reinstatement without backwages. 3. A counter affidavit has been filed by the second respondent, wherein, while admitting the averments and allegations made in the affidavit of the petitioner filed in the writ petition, he has stated that only after issuing show-cause notice to the petitioner and after observing all the formalities of framing charges, allowing reasonable opportunity to defend his case and duly conducting personal hearing, the impugned order was passed removing his from service. With regard to non-payment of backwages, the second respondent stated that since the petitioner was not actually in service during the relevant time, backwages was not paid to him. Therefore, the second respondent prays for dismissal of the writ petition. 4. I have heard the learned counsel appearing for the petitioner and the learned Additional Government Pleader appearing for the respondents. I have gone through the documents available on record. 5. Perusal of the records show that on 20.12.2010, a show-cause notice was issued to the petitioner by the second respondent calling upon him to offer explanation, on the basis of his conviction rendered by the Criminal Court as to why he should not be removed from the service of the Government. The petitioner is and by a letter dated 17.01.2001, offered his explanation. But, not having satisfied with the explanation offered, by an order dated 16.07.2001, the second respondent passed an order removing the petitioner from the service of the Government. Thereafter, on 26.02.2008, the Principal Bench of this Court, while considering the Criminal Appeal Nos. 1176 and 1180 of 2000, filed by the petitioner as well as another similarly placed person, by a common judgment dated 26.02.2008, set aside the conviction rendered by the Lower Court and acquitted the appellants namely the petitioner and other person of the charges leveled against him. 1176 and 1180 of 2000, filed by the petitioner as well as another similarly placed person, by a common judgment dated 26.02.2008, set aside the conviction rendered by the Lower Court and acquitted the appellants namely the petitioner and other person of the charges leveled against him. Thereafter, the petitioner sent a communication to the second respondent enclosing a copy of the judgment of acquittal dated 26.02.2008, requesting him to reinstate him with all benefits, such as backwages and consequent promotion etc. But by the impugned order dated 23.09.2009, the second respondent, while ordering reinstatement of the petitioner, denied the backwages stating that he had not attended duty during that period. 6. Admittedly, as contended by the learned counsel for the petitioner, in this case though charges have been framed against him, no disciplinary proceedings were initiated against him and no enquiry officer was appointed to go into the veracity of the charges. A perusal of the impugned order of removal dated 16.07.2001 without conducting an enquiry, the impugned order of removal has been passed only on the basis of the order of conviction passed by the trial Court. However, the conviction rendered by the Lower Court was set aside and he was acquitted from the charges of conviction by the Principal Bench of this Court by way of a judgment dated 26.02.2008. Further, as rightly contended by the learned counsel for the petitioner, no disciplinary proceedings were instituted against the employee, who was charged with an offence and once a person is acquitted from a criminal case, it has to be deemed that he never committed the offence and the judgment would operate retrospectively. In this case, no departmental proceedings were initiated against the petitioner on account of the criminal case, he is entitled for reinstatement along with back wages. 7. At this juncture, it is also useful to refer to the judgment reported in (State Bank of India, rep. by its Chief General Manager & Another vs. Mohammed Abdul Raheem), relied on by the learned counsel for the petitioner, wherein a Division Bench of this Court has held that once a person charged with an offence is acquitted in a criminal case, it has to be deemed that he never committed that offence and the judgment will operate retrospectively. by its Chief General Manager & Another vs. Mohammed Abdul Raheem), relied on by the learned counsel for the petitioner, wherein a Division Bench of this Court has held that once a person charged with an offence is acquitted in a criminal case, it has to be deemed that he never committed that offence and the judgment will operate retrospectively. W hen no departmental proceedings are instituted against an employee on account of the criminal case, he is entitled for reinstatement along with back-wages. The facts of that case would squarely apply to the facts of the case on hand. 8. In these circumstances, looking at the facts of the case, particularly with reference to the acquittal order of the appellate Court in the criminal case filed against the petitioner and on the admitted fact that there was no departmental proceedings at any point of time initiated, I do not find any justification to deny the full pay and allowances that are to be paid to the petitioner herein. Therefore, the impugned order dated 23.09.2009, passed by the second respondent is set aside, insofar as it relates to refusal to grant backwages alone for the period from the date of discharge till the date of reinstatement of the petitioner in service is concerned and the 2nd respondent is hereby directed to pay the backwages to the petitioner for the period he was not in service, within the period of three months from the date of receipt of copy of this order. 9. In the result, the writ petition is allowed as prayed for. No costs. Consequently, connected M.P.No. 1 of 2009 is closed.