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2013 DIGILAW 285 (JHR)

Bageshwar Singh v. Bokaro Steel Plant

2013-02-26

APARESH KUMAR SINGH

body2013
ORDER Heard counsel for the parties. 2. The petitioner is aggrieved by part of the office order dated 04.04.2006, Annexure3, by which pay fixation order of the petitioner has been issued granting him promotion from Grade S7 to Grade S11 but with a condition that no arrears would be payable for such promotion granted during the said period from 1982 2006. 3. Counsel for the petitioner submits that the petitioner was prosecuted by the respondents in a criminal case instituted on their behalf alleging certain charges of wrongful loss to the management by indulging in forgery of bonds in receiving certain documents. The petitioner faced the trial and has been acquitted by the judgment dated 12.08.2005 in R.C. Case No. 9 of 1978(R), vide Annexure1 passed by the court of SDJM-cum-Special Judicial Magistrate, C.B.I., Ranchi in Trial No. 2/2005 along with three others. It the contention of the petitioner that the criminal case was instituted by the employer himself and on ending in acquittal, the respondents themselves granted him promotion notionally, vide Annexure2, and the pay fixation order was issued, vide Annexure3, however, he has been denied the back wages on the promoted post due to criminal case instituted by the employer himself which, however, ended in acquittal. Counsel for the petitioner submits that in the case of one K.L. Gandhi, vide Annexure5 dated 28.08.1999, the employee was reinstated in service after acquittal and has been granted full back wages by the employer-respondents themselves. Counsel for the petitioner submits that in a similar case of dismissal from service by the respondents-Steel Authority of India Limited, the respondents were directed to reinstate him upon his acquittal vide order passed in C.W.J.C. No. 2338 of 1994(R), vide Annexure6 and were also directed to consider his claim for grant of full salary for the period for which he was out of service. In these facts, learned counsel for the petitioner relied upon a judgment of the learned single Judge of this Court in the case of Binod Kumar Singh Vs. In these facts, learned counsel for the petitioner relied upon a judgment of the learned single Judge of this Court in the case of Binod Kumar Singh Vs. Coal India Limited, reported in (2007) 1 JLJR 51 and submits that if an employee has been deprived of the benefit of his service on account of the acts of the employer by initiation of a criminal proceeding, on his acquittal, the employee concerned is entitled to the back wages and the benefits which were denied to him because of the pendency of the said proceeding. It is submitted that this case is identical to one referred to hereinabove where the complaint was not instituted by a third party but by the employer himself and, therefore, the petitioner is also entitled to similar consideration. 4. Respondents have appeared and filed their counter affidavit. It is the case of the respondents that as per the order of acquittal as contained in Annexure1, it would be obvious that it is not a clean acquittal but he has been given the benefit of doubt by the concerned trial Court. It is submitted that the aforesaid facts have been considered by the respondents by giving him notional promotion for the period in which, though he remained in service but was not granted promotion due to pendency of a criminal case. Counsel for the respondents has relied upon the judgments rendered in the case of Union of India Vs. B.M. Jha, reported in (2007) 11 SCC 632 and in the case of A.K. Soumini Vs. State Bank of Travancore, reported in (2003) 7 SCC 238 . It is submitted on behalf of the respondents that employee is not entitled to the benefits of arrears on the promoted post if the promotion has been granted retrospectively and the employee concerned has not actually worked on the promoted post for the said period. Counsel for the respondent further submits that the employee as mentioned in Annexure-5 were not similarly placed like the present petitioner as in their case the acquittal was a clean acquittal. However, counsel for the petitioner has opposed the said submissions by stating that such distinguishable feature has not been made out in the counter affidavit of the respondents. 5. I have heard counsel for the parties at length and gone through the relevant materials on record. However, counsel for the petitioner has opposed the said submissions by stating that such distinguishable feature has not been made out in the counter affidavit of the respondents. 5. I have heard counsel for the parties at length and gone through the relevant materials on record. The petitioner admittedly was prosecuted in a criminal case instituted by the employer himself being R.C. Case No. 9 of 1978(R) along with three other persons and by the judgment rendered on 12.08.2005 in Trial No. 2 of 2005 passed by the court of SDJM-cum-Special Judicial Magistrate, C.B.I., Ranchi, the petitioner was acquitted by the trial Court by giving him benefit of doubt. The petitioner has, therefore, made out a case that he has remained in service and no departmental proceeding has been initiated against him nor he was placed under suspension on account of such criminal charges, however, he was not given promotion during the pendency of the said criminal case. The respondents, after his acquittal, considered his case and granted him promotion, vide Annexure2 and pay fixation order, as contained in Annexure3 dated 04.04.2006 was issued fixing his salary notionally on the promoted Grade from S7 to S11, however, with a condition that no arrears would be payable to the petitioner on account of such notional promotion. 6. It is not in dispute that on account of pendency of the criminal case the petitioner has not been granted promotion in the entire period of the pendency of the criminal case and has been subsequently granted the said promotion on his acquittal by the trial court in the criminal case itself instituted by the employer himself against the petitioner. The judgment relied upon by the petitioner in the case of Binod Kumar Singh Vs. Coal India Limited, reported in (2007) 1 JLJR 51 (Supra), therefore, appears to be applicable to the case of the petitioner as well. In the said case also the employee concerned was implicated in a criminal case instituted by the employer and has been deprived of the benefit of service during the pendency of the criminal proceeding and after which he was finally acquitted in the criminal case. In the said case also the employee concerned was implicated in a criminal case instituted by the employer and has been deprived of the benefit of service during the pendency of the criminal proceeding and after which he was finally acquitted in the criminal case. On that score the learned single Judge of this Court has held that if the criminal proceeding is initiated by a third party against the employee concerned on account of which he was prevented from discharging his duty as an employee then he may not be entitled to claim back wages. However, when the criminal proceeding was instituted by the employer himself against the employee concerned and the service benefit of the employee concerned has been denied during the pendency of the criminal proceeding, then on the acquittal of the employee in the criminal proceeding the back wages cannot be denied as there was no fault of the employee for which he could not be given the benefit of his service during the pendency of the criminal proceeding. The learned Single Judge also discussed the two judgments of the Hon'ble Supreme Court relied on by the respondents and came to the findings. The relevant paragraphs of the said judgment are quoted hereunder: “3. Only ground that needs to be considered is whether the petitioner is entitled to salary and back wages after his acquittal by the Appellate Court for the period he was out of job on account of his dismissal vide dismissal order dated 6.7.1999 on his conviction. Learned counsel appearing for the respondents has placed reliance upon the judgment in case of Union of India vs. Jaipal Singh (supra). This judgment is also the basis for denial of the claim of the petitioner as is evident from the impugned communication dated 3.6.2004. In the aforesaid judgment, an employee was convicted for an offence under Section 302 read with Section 34 of I.P.C along with his brother and later acquitted by the Appellate Court. It is relevant to notice the observations of the Apex Court in the aforesaid judgment which reads as under: “On going through the same, we are in respectful agreement with the view taken in 1996 (11) SCC 603 (supra). It prosecution, which ultimately resulted in acquittal of the person concerned was at the behest or by department itself, perhaps different considerations may arise. It prosecution, which ultimately resulted in acquittal of the person concerned was at the behest or by 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 convicting 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 reasons 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 in so far as it directed payment of back wages are liable to be and is hereby set aside.” 4. From the observations of the Hon'ble Supreme Court, it is evident that Court concurred with the earlier judgment of the Apex Court reported in 1996(11) SCC 603 . In the aforesaid judgment also, the employee was involved for an offence under Section 302 read with section 34 I.P.C. and convicted by the Sessions Court and later he was acquitted by the High Court. He claimed reinstatement and back wages. Hon'ble Supreme Court on consideration 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 this not being in service of the respondent. Hon'ble Supreme Court on consideration 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 this 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 required 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.” "5. From perusal of both these judgments, it transpires that the distinguishable feature in two situations where an employee is entitled to back wages and where he has to be denied the back wages appears to be conviction not relatable with his/her employment and conviction for an offence said to be committed during the course of or relating to the performance of duties and at the instance of the employer. In both the cases before the Apex Court the employee was involved in cases of murder etc. and convicted resulting in dismissal under service rules and later reinstated on acquittal. The offence of 302 committed by an employee has nothing to do with his service/employment that too if the allegations are unconnected with discharge of his duty as such an employee. Under these circumstances, it has been held by Hon'ble Supreme Court that the employer has been deprived of the benefit of the services of the employee not due to any fault of the employer and thus having not extracted any work from him is under no obligation to pay. 6. Under these circumstances, it has been held by Hon'ble Supreme Court that the employer has been deprived of the benefit of the services of the employee not due to any fault of the employer and thus having not extracted any work from him is under no obligation to pay. 6. In the present case, the allegations against the petitioner had direct connection with his employment. He was accused of an act of fraud and forgery during the course of and in relation to his employment. Finally he was acquitted of the criminal charge. Final Court has exonerated the petitioner of all the allegations against him having not been established and his conviction set aside. Dismissal of the petitioner was only on account of his conviction for the aforesaid offence. Had there been no complaint of his misconduct during the course of his employment, there had been no proceedings against him. As a matter of fact, he was tried at the instance of the employer. The conviction and later dismissal had direct nexus with the employment. it was not an individual or independent act of the petitioner which deprived the employer of the benefit of his service rather employee was denied the benefit of his service on account of criminal proceedings initiated in relation to his employment/service. His dismissal being solely on account of conviction, he cannot be denied the benefit of back wages and other service benefits on acquittal of the charges. Supreme Court has clearly indicated in 1996 (11) SCC 603 (supra) that every case has its own facts. The facts of the present case are different from both the cases referred to above where the employee was found not entitled to back wages.” 7. Accordingly, he was directed to be paid the back wages and other service benefits for the period under consideration. 8. The judgment relied upon by the respondents do not relate to claim of back wages on reinstatement on acquittal in a criminal case. They lay down the proposition that when promotion is granted retrospectively and the person concerned had not actually worked on the said promoted post on which later on he had been granted promotion, he cannot claim back wages. They lay down the proposition that when promotion is granted retrospectively and the person concerned had not actually worked on the said promoted post on which later on he had been granted promotion, he cannot claim back wages. In that view of the matter, the judgments relied upon by the respondents are distinguishable on the facts of the present case and, therefore, similar treatment should be extended to the present petitioner as well as was granted in the case of Binod Kumar Singh (supra). 9. The petitioner admittedly has been granted notional promotion on his acquittal in a criminal case instituted by the employer himself. Therefore, there is no justifiable basis for the concerned respondents to deny him the benefit of back wages for the promoted post for which he has been promoted, vide Annexure2 and pay fixation order has been issued, vide Annexure3. 10. Accordingly, this writ petition is allowed by directing the respondents to grant him back wages for the promoted post to which he has been granted promotion and pay fixation order has been issued vide Annexures 2 and 3 respectively. Petition allowed.