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2014 DIGILAW 745 (ORI)

Banambar Panda v. United Bank of India

2014-11-11

B.R.SARANGI

body2014
JUDGMENT B.R. Sarangi, J. 1. The petitioner has filed this writ petition seeking the following relief: “To issue notice, call for the records, after hearing the parties, quash the order dated 05.02.2010 vide Annexure-7 and direct the opposite parties to grant all the benefits, such as salary from 29.11.1994 to 30.04.2006, pensionary benefits, gratuity, Provident Fund dues, Leave encashment commutation of 1/3 pension, House Rent, Leave Fare Concession in 4 years interval etc. as well as all retiral dues with 18% interest on monthly rest.” 2. The petitioner’s date of birth being 24.04.1946, he was selected and appointed as an Assistant on 16.03.1971 under the United Bank of India. Thereafter he was promoted to the post of Deputy Manager in the year 1978. While continuing as District Coordinating Officer in Sundargarh district he was placed under suspension w.e.f. 29.11.1994 in connection with T.R. Case No. 65 of 1999 and 49 of 1994 started before the Special Judge (CBI), Bhubaneswar pursuant to investigation conducted by the CBI Petitioner was convicted of the charge under Section 13(2) and 13(1)(d) of the Prevention of Corruption Act, 1988 and was sentenced of two years imprisonment vide judgment dated 30.09.1999. The said order of conviction and judgment being challenged before this Court in Criminal Appeal No. 256 of 1999, his conviction and sentence were set aside by judgment passed in appeal on 14.09.2007 by when he had already retired on superannuation w.e.f. 30.04.2006. It is stated that since the petitioner has been acquitted after the date of his superannuation, he could not have been reinstated in service but he claims financial benefits admissible to him with effect from the date of his suspension, i.e. 29.11.1994. 3. Mr. D.R. Pattnaik, learned counsel for the petitioner strenuously urged that after being acquitted of the charges by judgment passed by this Court in Criminal Appeal No. 256 of 1999, the petitioner was entitled to the financial benefits from the date of his suspension from service till the date of his superannuation. He therefore approached this Court by filing W.P. (C) No. 17246 of 2008 wherein this Court directed the petitioner to file representation before opposite party no.3. Accordingly, the petitioner filed his representation on 04.01.2010 to opposite party no.3, who was the authority concerned claiming all financial, service and consequential benefits. He therefore approached this Court by filing W.P. (C) No. 17246 of 2008 wherein this Court directed the petitioner to file representation before opposite party no.3. Accordingly, the petitioner filed his representation on 04.01.2010 to opposite party no.3, who was the authority concerned claiming all financial, service and consequential benefits. Opposite party no.3 considering the representation, passed the impugned order rejecting the claim of the petitioner vide order dated 5.2.2010, Annexure-7. It is stated that since the petitioner was acquitted of the criminal charge, he is entitled to get all his service benefits. He further stated that even though the petitioner faced a criminal trial, the Bank authority did not initiate any disciplinary proceeding to disentitle him to get the benefits claimed by him in the writ petition. Merely, on the basis of a criminal charge which ultimately led to acquittal could not have disentitled the petitioner to the benefits due to him. 4. To substantiate his case, Mr. Pattnaik, relied upon the judgment of the apex Court in Shiv Nandan Mahto vs. State of Bihar and Others, (2011) 11 SCC 626. 5. Mr. H.M. Dhal, learned counsel for the opposite party-bank, strenuously urged that even though the petitioner has been acquitted in the aforesaid Criminal Appeal on 14.09.2007, by then the petitioner had already attained the age of superannuation which was on 30.04.2006. Therefore question of his reinstatement in service did not arise. So far as the claim for financial benefits is concerned, he is also not entitled to get the same and as such there is no need for initiation of a disciplinary proceeding in view of the fact that when a bank officer being a public servant is convicted of a corruption charge, he is not entitled to hold public office and consequently not entitled to any financial benefit. Therefore, irrespective of factum of non-initiation of any disciplinary proceeding against the petitioner, he is not entitled to get the financial benefit as claimed by him. Thereby order passed by the authority is wholly and fully justified and this Court may not interfere with the same. To substantiate his case, Mr. Therefore, irrespective of factum of non-initiation of any disciplinary proceeding against the petitioner, he is not entitled to get the financial benefit as claimed by him. Thereby order passed by the authority is wholly and fully justified and this Court may not interfere with the same. To substantiate his case, Mr. Dhal, relied upon the judgments of the apex Court in Union of India and Others vs. Jaipal Singh, AIR 2004 SC 1005 , Ranchhodji Chaturji Thakore vs. Superintendent Engineer, Gujurat Electricity Board, Himmatnagar (Gujurat) and Others, AIR 1997 SC 1802 and K.C. Sareen vs. CBI, Chandigarh, AIR 2001 SC 3320 . 6. Considering the facts pleaded above and after going through the records, it appears that admittedly the petitioner was a public servant being employee of a bank. He was convicted under Section 13(2) and 13(1)(d) of the Prevention of Corruption Act, 1988 and was sentenced to two years’ imprisonment in T.R. Case No. 65 of 1999 and 49 of 1994 by the Special Judge, CBI, Bhubaneswar. Against the said judgment and conviction, the petitioner preferred Criminal Appeal No. 256 of 1999 before this Court which was disposed of on 14.09.2007 setting aside the conviction of sentenced passed against the petitioner. It is admitted fact that pending criminal proceeding the petitioner was placed under suspension on 29.11.1994 and being convicted by the Special Judge on 30.09.1999, he was dismissed from service on 21.10.1999. In the meantime on attaining the age of superannuation he was retired from service on 30.04.2006. He was however acquit of the charge in Criminal Appeal No. 256 of 1999 by this Court. Being acquitted by this Court, the petitioner claims that he is entitled to get the financial benefits. Therefore, he approached this Court earlier by filing W.P. (C) No. 17246 of 2008 and by order dated 7.12.2009 this Court directed the petitioner to file representation before opposite party no.3 and disposed of the said writ petition. Accordingly, the petitioner filed representation before the opposite party no.3 and on consideration of the grievance made by the petitioner, the said opposite party rejected his claim vide Annexure-7. The petitioner submits that although a criminal case was initiated against him, the authorities never initiated a disciplinary proceeding against him and therefore, the financial benefits admissible to him should be extended to him. The petitioner submits that although a criminal case was initiated against him, the authorities never initiated a disciplinary proceeding against him and therefore, the financial benefits admissible to him should be extended to him. His contention is that since he was placed under suspension w.e.f. 29.11.1994 which continued till 30.04.2006 which was the date of his attaining the age of superannuation, treating the said period as duty period, he ought to have been paid the dues as admissible to him. This Court is of the view that after suspension on 29.11.1994 the services of the petitioner had been terminated on 20.10.1999 and with that order the period of his suspension having been merged, the petitioner cannot claim to be continuing in service being under suspension till his date of his superannuation date i.e. 30.04.2006. Therefore, the period from 29.11.1994 to 30.04.2006 cannot be treated as period of suspension. 7. In the counter affidavit it is specifically stated that the petitioner having been acquitted in Criminal Case No. 256 of 1999 vide judgment dated 14.09.2007, the bank had taken into consideration the entire service period of the petitioner up to 30.04.2006 on which he was superannuated on attaining the age of superannuation to be the qualifying service for determining the pension. Accordingly, he has been paid the dues he was entitled to pursuant to a payment order. His entitlement determined by the Bank was communicated to him vide Bank’s letter No. PD/DIR/CC-647 in June 25, 2013 as follows:- “Although, it is observed that the Competent Authority of the Bank has duly approved the release of admissible retiral dues to you consequent upon your acquittal vide judgment dated 14.09.2007 of the Hon’ble Orissa High Court and the same has already been paid to you as per calculation of the Bank after effecting notional fitment of your basic pay since 29.11.1994 till the date of your normal retirement i.e. 30.04.2006 yet, in deference to the order dated 16.05.2013 passed by the Hon’ble Orissa High Court, the Bank has thoroughly re-examined entire records relating to payment of your retiral benefits and observed as follows: 1. The remaining salary benefit from the period of your suspension i.e. from 24.11.1994 to the date of dismissal i.e. 21.10.1999 amounting to Rs.3,81,088.42 has been paid to you by the Bank’s Sundargarh Branch on 18.02.2009 as you had already received the 50% of salary by way of subsistence allowance during your suspension. 2. Staff Provident Fund dues amounting to Rs.92,304.00 has been paid to you on 04.04.2002 vide Cheque No. 569946 dated 04.04.2002. 3. Arrear salary of Rs.31,697.51 due to notional fitment of salary along with Leave Encashment of 94 days amounting to Rs.53,110.00 has been paid to you on 18.04.2009 by the Bank’s Sundargarh Branch. 4. Being a pension-optee, the pensionary benefits including monthly pension has also been accorded to you by the Bank with continuity of service till date of your notional superannuation i.e. 30.04.2006 and at present, you are receiving Rs.11,275.68 as monthly pension.” 8. It appears from the above letter that so far as the gratuity amount is concerned that has not been paid and necessary instruction was issued to concerned department to release the said amount in favour of the petitioner immediately. In view of this, it is stated that petitioner is not entitled to any benefit more. 9. Mr. D.R. Pattnaik, learned counsel for the petitioner relying upon Shiv Nandan case (supra) strenuously urged that the petitioner is entitled to get the back wages as claimed in the writ petition as he was dismissed from service but subsequently was acquitted of the Criminal charge. Therefore he is entitled to get back wages. It is stated that since dismissal order was passed for no fault of the petitioner, the claim made by the petitioner is wholly and fully justified. 10. Per contra, Mr. Dhal, strenuously relied upon the judgment in Ranchhodji Chaturji Thakore case (supra), wherein the apex Court held that where there was termination of service on the ground of conviction for criminal offence and subsequent reinstatement in service on acquittal, the petitioner is not entitled to back wages since he was disabled from rendering service on account of his conviction and not on account of any disciplinary action taken by the employer and the claim was unsustainable in law. 11. 11. Similar view has been taken in Union of India and others case (supra) wherein the apex Court held that where a public servant dismissed on conviction in a criminal case is reinstated on his subsequent acquittal, back wages cannot be granted as department cannot be found fault with for having kept him out of service. Therefore, direction given to the High Court for payment of back wages is erroneous and accordingly the same was set aside by the apex Court. 12. In K.C. Sareen case (supra), the apex Court held that the bank officer being a public servant convicted on a corruption charge under Section 13(2) of Prevention of Corruption Act, 1988 is not entitled to hold public office. Therefore, suspension of order of conviction during pendency of the appeal or revision is not permissible. 13. On an analysis of the judgments cited above, it appears that reference made to Shiv Nandan case (supra) by the learned counsel for the petitioner has no application to the present context inasmuch by no stretch of imagination it can be construed that the petitioner was kept out of employment at the behest of the employer, namely, the bank. Therefore, the question of no fault on the part of the petitioner does not arise in view of the fact that he was placed under suspension pending contemplation of disciplinary proceeding. Subsequently, in the criminal case he was sentenced to two years’ rigorous imprisonment under Section 13(2) and 13(1)(d) of the Prevention of Corruption Act, 1988. As the petitioner being a public servant was convicted of a corruption charge, he was not entitled to hold a public office. Therefore, the claim of the petitioner for payment of any dues is absolutely misconceived one. More so, this position has been clarified in Ranchhodji Chaturji Thakore and Union of India and others cases (supra) which made it clear that to public servants dismissed on conviction in a criminal proceeding but reinstated on subsequent acquittal, back wages cannot be granted as department cannot be found fault with for having kept him out of service. Having convicted the petitioner was not entitled to hold the public office and as a consequence thereof no back wages he is entitled to. 14. Having convicted the petitioner was not entitled to hold the public office and as a consequence thereof no back wages he is entitled to. 14. In that view of the matter, this Court is of the considered opinion that the decision taken by the authority vide Annexure-7 is wholly and fully justified inasmuch as the petitioner is not entitled to get any financial or service benefit keeping in view the law laid down by the apex Court as discussed above. So far as the payment of gratuity is concerned, since the authorities have already passed an order in that regard and have communicated the same to the petitioner, vide letter dated 25th June, 2013, the same shall be paid to the petitioner in accordance with law. 15. In that view of the matter, the writ petition merits no consideration and accordingly the same is dismissed.