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2013 DIGILAW 993 (JHR)

Tarak Nath Choudhury v. Bharat Coking Coal Ltd.

2013-08-30

APARESH KUMAR SINGH

body2013
ORDER Heard learned counsel for the parties. 2. The petitioner has approached this Court in the present writ petition being aggrieved against part of the letter dated 13.9.2010 issued by the respondent no. 6, Deputy Chief Personnel Manager, Burdwan by which he has ordered that the petitioner will not claim any back wages and the period of his idleness, from the date of his dismissal till resumption of duty, shall be treated as dies non. The petitioner consequently seeks direction upon the respondents to pay the back wages for the period from January, 1992 to January, 1996 i.e. the period of his suspension for which he was only paid 75% of basic pay. He also seeks full salary from March, 2003 i.e. from the date he was out of service on being dismissed to September, 2010 till he was reinstated. He also seeks correction in his basic pay as Rs. 21,457.80 in place of Rs. 17,447.84 and consequent arrears of salary on that account. 3. The short facts of the case, according to the petitioner, are that he was in service of the respondent-BCCL on being appointed as Clerk at Nichitpur Colliery, Dhanbad on 1.10.1971. In January, 1992, he was implicated in a criminal case on the basis of the allegation that he was caught red-handed by the CBI team while demanding illegal gratification of Rs. 2,000/- from one employee for processing his case for joining duty as a loader in Nichitpur Colliery. The petitioner, after registration of the said criminal case being R.C. Case No. 2(A) of 1992, was put under suspension in January, 1992 and till January, 1996 he was paid only 75% of basic salary as subsistence allowance. His suspension was revoked in January, 1996. He continued to work under the respondent in his transferred place of posting on Chanch Victoria Area-XII of BCCL and also resumed his duty with full salary. However, he was convicted for the offence proceeded against in the criminal case instituted by the CBI vide judgment dated 26.2.1998 and order of sentence dated 9.3.1998. He preferred a Criminal Appeal No. 65 of 1998(R) before the High Court. He was dismissed from service on the basis of conviction in March, 2003 by the respondent-BCCL. The Criminal Appeal No. 65 of 1998(R) was however allowed by this Court and he was acquitted of the charges vide judgment dated 8.9.2009. He preferred a Criminal Appeal No. 65 of 1998(R) before the High Court. He was dismissed from service on the basis of conviction in March, 2003 by the respondent-BCCL. The Criminal Appeal No. 65 of 1998(R) was however allowed by this Court and he was acquitted of the charges vide judgment dated 8.9.2009. The order of conviction and sentence dated 26.2.1998 and 9.3.1998 respectively were set aside. Thereafter, on his representation made before the General Manager, Chanch Victoria Area-XII, BCCL, the petitioner was reinstated in service vide order dated 13.9.2010 by the order of Deputy Chief Personnel Manager, Chanch Victoria Area-XII on the basis of approval of the Competent Authority. However, the petitioner is aggrieved as the order of reinstatement denies him back wages for the period he remained out of service as also treated that period as dies non. That is the reason for moving this Court in the present writ petition. 4. Learned counsel for the petitioner submits that, in relation to charge of illegal gratification, which is connected to course of his employment, the petitioner was proceeded against and convicted in the criminal case initiated by the CBI in which the official of the respondent-BCCL deposed as witness. That was the reason for his dismissal as well. Upon being acquitted in the said criminal case by the Appellate Court i.e. High Court and upon his reinstatement, he deserves to be granted full back wages and remaining salary for the period of his suspension and correction of his Basic Pay. Learned counsel for the petitioner submits that in similar circumstances, the Division Bench of this court in the case of The Chairman-cum-Managing Director, BCCL & Anr. vs. Binod Kumar Singh & Anr. reported in 2007(1) AIR Jhar R 866 [ : 2007(1) JLJR 469 ] has allowed 50% back wages to such employee, who was dismissed on conviction in a criminal case at the instances of the employer and who was acquitted of the said charges by the Appellate Court. Learned counsel for the petitioner, therefore, submits that in the instant case, charges are related with the course of employment in which the petitioner was convicted on the basis of the evidence adduced by the respondent themselves. Therefore, the same benefit of back wages on reinstatement should also be granted to him. Learned counsel for the petitioner, therefore, submits that in the instant case, charges are related with the course of employment in which the petitioner was convicted on the basis of the evidence adduced by the respondent themselves. Therefore, the same benefit of back wages on reinstatement should also be granted to him. Learned counsel for the petitioner, has also assailed the Memorandum of Settlement which is said to have entered into between the petitioner and the Management vide Annexure-A to the counter affidavit, dated 28.7.2010 relying upon which, the respondents have denied back wages to the petitioner for the period he remained out of service upon his dismissal. He submits that the said settlement is not in consonance with Rule 58 of the I.D. Act. Therefore, in a matter of unconscionable bargaining position of the poor petitioner with mighty Management, this terms of such settlement cannot be enforced and the petitioner should not be denied back wages in question. 5. Learned counsel for the respondents-BCCL on the other hand submits that a criminal case in question was not instituted at the behest of the employer. He draws attention of the Court to the judgment rendered in Cr. Appeal No. 63 of 1998(R), dated 8.9.2009, Annexure-1. He submits that the facts of the case show that the criminal case was instituted on the basis of telephonic information through a source to CBI upon which trap was laid for apprehending the petitioner on charges for demanding illegal gratification from Shri Bishun Bhuiyan for processing the case for joining duty as a loader in Nichitpur Colliery, BCCL, Dhanbad. He, therefore, submits that the services of the employee was reinstated but denied back wages for the period he remained out of service on account of such conviction and resultant termination. In the instant case, since employer was not responsible for instituting the case and resultant conviction and termination, therefore, for no fault of the employer, the services of the employee were denied to the employer, therefore, it cannot be saddled with the liability of the back wages. Learned counsel for the respondents relied upon the judgment of Hon'ble Supreme Court rendered in the case of Union of India and Ors. vs. Jaipal Singh reported in (2004)1 SCC 121 [ : 2004(2) JLJR (SC) 68] and in the case of Ranchhodji Chaturji Thakore vs. Superintendent Engineer, Gujarat Electricity Board, Himmatnagar (Gujarat) and Anr. Learned counsel for the respondents relied upon the judgment of Hon'ble Supreme Court rendered in the case of Union of India and Ors. vs. Jaipal Singh reported in (2004)1 SCC 121 [ : 2004(2) JLJR (SC) 68] and in the case of Ranchhodji Chaturji Thakore vs. Superintendent Engineer, Gujarat Electricity Board, Himmatnagar (Gujarat) and Anr. reported in (1996)11 SCC 603 . He submits that the ratio of the aforesaid judgment is that if the criminal prosecution is lodged by the employer himself which ends up in acquittal of the employee, then on his reinstatement, such a liability can be saddled upon the employer. But that fact is absent in the present case. Learned counsel for the respondents has also relied upon the Memorandum of Settlement entered in between the petitioner and the Management in the presence of the witnesses whereby he had foregone his back wages from the date of dismissal till the date of reinstatement as a precondition for his reinstatement upon being acquitted by the Appellate Court in the said criminal case. He submits that de hors the Memorandum of Settlement also, it is always open to the employee to accept the conditions for reinstatement by the employer and concede his claim for back wages. In the circumstances, therefore, the judgment relied upon by the petitioner is distinguishable on facts. 6. I have heard learned counsel for the parties and have gone through the relevant materials on records including the part of the order which is impugned in the present writ petition. Upon hearing learned counsel for the parties and upon perusal of the relevant materials on records including the judgment rendered in Cr. Appeal No. 65 of 1998(R), it is evident that the criminal prosecution was not lodged at the behest of the employer i.e. respondent-BCCL, but was on the basis of a source information to CBI regarding demand of illegal gratification made by the petitioner from one Bishun Bhuiyan while working as Clerk under the respondent-BCCL. The said criminal case was instituted by the CBI in connection with the said charges. The petitioner was, thereafter, suspended because of the involvement in the criminal case from January, 1992 to January, 1996. During this period, he was only paid 75% back wages of the basic salary as subsistence allowance. The said criminal case was instituted by the CBI in connection with the said charges. The petitioner was, thereafter, suspended because of the involvement in the criminal case from January, 1992 to January, 1996. During this period, he was only paid 75% back wages of the basic salary as subsistence allowance. However, he got convicted for the said offence vide judgment and order of sentence dated 26.2.1998 and 9.3.1998 respectively as a result of which he was dismissed from service on the basis of said conviction in March, 2003. The petitioner was, thereafter reinstated on being acquitted of the charges by the Appellate Court i.e. High Court in Cr. Appeal No. 65 of 1998(R) vide judgment dated 8.9.2009. On the petitioner's representation, he has been reinstated vide order dated 13.9.2010. The terms of Memorandum of Settlement is that for the period he remained out of service, he will not claim any back wages and that period should be treated as dies non. However, the said period shall be treated as continuous service for the purpose of gratuity. In the instant case, the petitioner has relied upon the judgment as reported in 2007(1) AIR Jhar R 866 [ : 2007(1) JLJR 469 ] (supra). The facts which have noticed by the learned Division Bench in the said judgment disclose that the allegation against the said petitioner had direct connection with his employment, which was in relation to grant of employment of Class-III and IV employees in the BCCL in which 16 persons were implicated including the said person. As a matter of fact he was tried at the instance of the employer. In the said case, the said employee had retired before he was acquitted by the Appellate Court. In the circumstances, learned Division Bench of this Court after considering the facts the said case on the ground that since the said person had attained the age of superannuation, granted 50% back wages for the period, he had remained out of service as the same would meet the ends of justice instead of full back wages as was granted by learned Single Judge. In the instant case, the facts noticed hereinabove show that criminal case was not instituted at the behest of the respondent-employer but lodged on the basis of source information. In the instant case, the facts noticed hereinabove show that criminal case was not instituted at the behest of the respondent-employer but lodged on the basis of source information. The Memorandum of Settlement, which was brought on record by way of Annexure-A to the counter affidavit, is not under challenge in the present writ petition. The order of reinstatement appears to be made upon the petitioner agreeing to the terms of settlement that he shall not claim any back wages for the period he remained out of service. In that view of the matter, the judgment relied upon by the respondents in their support also support their case. Therefore, the respondents cannot be accused of taking a stand that the petitioner is not entitled for the back wages for the period he remained out of service and salary for the remaining period of his suspension when he was paid 75% of his basic salary as subsistence allowance. For the same reasons the claim of the petitioner for correction in his basic pay at Rs. 21,457.90 after adding increments for the period he was out of service is also not sustainable in law and on facts as well. 7. Accordingly, this writ petition is devoid of merit and is dismissed.