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2016 DIGILAW 439 (CAL)

Tamal Sen v. Food Corporation of India

2016-05-19

ARIJIT BANERJEE

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JUDGMENT : Arijit Banerjee, J.: 1. The only question that falls for determination in this case is whether or not the petitioner is entitled to back wages for the period during which he was out of service due to dismissal from service by reason of his conviction under Section 498A of the Indian Penal Code and subsequent reinstatement in service upon his acquittal by the Appellate Court. The brief facts of this case in so far as the material for the present purpose are as follows. 2. At all material times the petitioner was an employee of Food Corporation of India (in short ‘FCI’). 3. On or about 18 September, 1997, the petitioner’s wife caught fire and succumbed to the burn injury. Subsequently, a criminal case was registered against the petitioner under Sections 498A/34 and 304B/34 of the IPC. By an order dated 31 August, 2001, the criminal court acquitted the petitioner from the charge under Section 304B of the IPC but found him guilty under Section 498A. He was awarded a punishment of rigorous imprisonment for three years. Immediately, upon his conviction, FCI dismissed the petitioner from service invoking the provision of Regulation 63(1) of the Food Corporation of India (Staff) Regulations, 1971. The Appellate Authority affirmed the said order of dismissal on 16 April, 2004. 3. In the meantime, the petitioner had filed an appeal from the order of conviction before this Court being CRA No. 323 of 2011. 4. The petitioner challenged the Appellate Authority’s order affirming the order of dismissal of the petitioner by filing WP No. 9757(W) of 2004. The said writ petition was disposed of by this Court by a judgment and order dated 4 February, 2005 by observing that in case the writ petitioner was ultimately acquitted in appeal, he would be entitled to approach the authority for his reinstatement. 5. About six years thereafter, the petitioner filed another writ petition being WP No. 5048 (W) of 2011 challenging the vires of the Food Corporation of India (Staff) Regulations, 1971 and prayed for reinstatement. 5. About six years thereafter, the petitioner filed another writ petition being WP No. 5048 (W) of 2011 challenging the vires of the Food Corporation of India (Staff) Regulations, 1971 and prayed for reinstatement. By a judgment and order dated 6 April, 2011 this Court dismissed the writ petition holding that since this Court had earlier refused to interfere with the order of dismissal in WP No. 9757(W) of 2004, it was not open to the petitioner to challenge the same order on other grounds and further observed that the writ application had been filed after lapse of a period of six years. 6. Subsequently, by a judgment and order dated 7 September, 2012 the appeal of the petitioner against the order of conviction was allowed. The petitioner was found not guilty of the charge under Section 498A of the IPC and he was released from his bail bond. 7. In the meantime, the petitioner had preferred an appeal being MAT 531 of 2012 against the order of dismissal of his second writ petition. The said appeal was allowed by a judgment and order dated 15 December, 2012. In view of the acquittal of the petitioner by the criminal Appellate Court, the Division Bench while disposing of the appeal recorded its sincerest expectation that the authorities will take action as expeditiously as possible in accordance with the observations made in the order. 8. By an order dated 14 January, 2013, the petitioner was reinstated in service. It was stated in the said order that the period of the petitioner’s absence in service from the date of dismissal till the date of reinstatement will be treated as non-duty for all purposes and for that period he will not be entitled to any back wages/yearly increments, seniority and will not earn any kind of leave. 9. The petitioner contends that on a true and correct interpretation of Regulation 66 of the Food Corporation of India (Staff) Regulations, 1971, he is entitled to back wages for the entire period during which he was kept out of service. Accordingly, he moved an application being CAN 4611 of 2013 in MAT 531 of 2012 renumbered as FMA 1563 of 2013 which already stood disposed of by the judgment and order dated 5 December, 2012. Accordingly, he moved an application being CAN 4611 of 2013 in MAT 531 of 2012 renumbered as FMA 1563 of 2013 which already stood disposed of by the judgment and order dated 5 December, 2012. In the said application the petitioner prayed for modification of the order dated 5 December, 2012 by clarifying that he is entitled to get all other service benefits including continuity of service, seniority, yearly increments and back wages for the period from the date of his dismissal to the date of his reinstatement. The said application was dismissed by the Appellate Court by a judgment and order dated 21 June, 2013. However, it was observed by the Appellate Court, any order passed after disposal of the appeal will always constitute a fresh cause of action and the order dismissing the application being CAN 4611 of 2013 will not prejudice the petitioner if he chose to challenge the order of reinstatement praying for reliefs that he prayed for in the said application. 10. Pursuant to the aforesaid observations of the appeal court, the petitioner has filed the present writ petition for a direction on the respondent authorities to grant to the petitioner full benefits for the period from the date of his dismissal till the date of his reinstatement. 11. The petitioner has relied on Rule 66(8) of the FCI (Staff) Regulations, 1971 which reads as follows:- “66(8).- When the suspension of an employee is held to be unjustified or not wholly justified or when an employee has been dismissed or suspended is reinstated, the disciplinary, appellate or reviewing authority, as the case may be, whose decision shall be final, may grant him for the period of his absence from duty; (a) If he is honourably acquitted, the full pay and allowances other than conveyance allowance to which he would have been entitled, if he had not been dismissed or suspended, less the subsistence grant; (b) If otherwise, such proportion of pay and allowances other than conveyance allowances as the disciplinary, appellate or reviewing authority may prescribe. In a case falling under clause (a), the period of absence from duty will be treated as a period spent on duty. In a case falling under clause (b) it will not be treated as a period spent on duty unless the disciplinary, appellate or reviewing authority, as the case may be, whose decision shall be final, so directs. In a case falling under clause (a), the period of absence from duty will be treated as a period spent on duty. In a case falling under clause (b) it will not be treated as a period spent on duty unless the disciplinary, appellate or reviewing authority, as the case may be, whose decision shall be final, so directs. No order passed under this regulation shall have the effect of compelling any employee to refund any part of the subsistence grant paid to him.” 12. The short submission of the petitioner is that since the petitioner has been honourably acquitted of the criminal charge, he is entitled to full back wages as provided in the Rule 66 extracted above. The petitioner relied on a decision of the Hon’ble Apex Court in the case of Deputy Inspector General of Police-vs.-S. Samuthiram, (2013) 1 SCC 598 . In particular he relied on paragraph 27 of the judgment which reads as follows:- “27. We have also come across cases where the service rules provide that on registration of a criminal case, an employee can be kept under suspension and on acquittal by the criminal court, he be reinstated. In such cases, the reinstatement is automatic. There may be cases where the service rules provide in spite of domestic enquiry, if the criminal court acquits an employee honourably, he could be reinstated. In other words, the issue whether an employee has to be reinstated in service or not depends upon the question whether the service rules contain any such provision for reinstatement and not as a matter of right. Such provisions are absent in the Tamil Nadu Service Rules.” 13. The petitioner also relied on a decision of the Hon’ble Apex Court in the case of State of West Bengal-vs.-Shankar Ghosh (Civil Appeal No. 10729 of 2013 arising out of Special Leave Petition (Civil) No. 29808 of 2010), wherein at paragraph 16, the Hon’ble Apex Court quoted its observations in its earlier decision in the case of S. Samuthiram (supra) which have been extracted above. 14. 14. The petitioner then relied on a decision of the Madras High Court delivered in Writ Appeal (MD) No. 1715 of 2011 (State Bank of India-vs.-Mohammed Abdul Raheem) wherein the Division Bench of the Madras High Court held that in view of the acquittal order of the Appellate Court in the criminal case lodged against the writ petitioner and on the admitted fact that there was no departmental proceedings initiated at any point of time, there was no justification to deny the full pay and allowances that were to be paid to the writ petitioner. 15. The petitioner finally relied on a decision of the Patna High Court delivered in Civil Writ Jurisdiction Case No. 2076 of 2009 (Vijayendra Kumar-vs.-Food Corporation of India & Ors.) wherein the Court upheld the writ petitioner’s claim to back wages in view of the Regulation 66(8) of the FCI (Staff) Regulations, 1971. 16. Appearing on behalf of the respondents, Mr. Arunabha Sengupta, Ld. Advocate, submitted that there is a clear distinction between initiation of disciplinary proceedings by the departmental authority culminating in the concerned employee being held guilty which is subsequently set aside and a criminal conviction on personal involvement for which the authority is not responsible. In the former case, the employee may be entitled to claim back wages for the period from the date of his dismissal till the date of his reinstatement but in the later case he will not be entitled to such claim. In the this connection he relied on a decision of the Hon’ble Supreme Court in the case of Ranchhodji Chaturji Thakore-vs.-Superintendent Engineer, Gujarat Electricity Board, Himmatnagar (Gujarat), (1996) 11 SCC 603 . Ld. Advocate relied on paragraph 3 of the judgment which is set out hereunder:- “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 the situation. 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 the situation. The question of back wages would be considered only if the respondents have taken action by way of disciplinary proceeding 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.” 17. Ld. Advocate for the respondents also relied on a decision of the Hon’ble Apex Court in the case of Union of India-vs.-Jaipal Singh, (2004) 1 SCC 121 . In that case the Hon’ble Supreme Court recorded its agreement with the view taken in its earlier decision in the case of Ranchhodji Chaturji Thakore (supra). The Hon’ble Supreme Court observed that if prosecution, which ultimately resulted in acquittal of the person concerned was at the behest of or by the department itself 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 acquitted 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. 18. Ld. Advocate submitted that in the instant case, the petitioner’s initial conviction of the offence under Section 498A of the IPC was not at the instance of the respondent employer. The FCI was well within its rights to dismiss the petitioner upon his conviction as per the applicable rules and regulations. 18. Ld. Advocate submitted that in the instant case, the petitioner’s initial conviction of the offence under Section 498A of the IPC was not at the instance of the respondent employer. The FCI was well within its rights to dismiss the petitioner upon his conviction as per the applicable rules and regulations. Upon his acquittal by the Appellate Court, he was reinstated in service. However, FCI cannot be made liable for the back wages of the petitioner for the period he was out of service. 19. I have considered the rival contentions of the parties. 20. The first question that arises is whether or not the acquittal of the petitioner was ‘honourable’. The meaning of the expression ‘honourable acquittal’ came up for consideration before the Hon’ble Apex Court in the case of S. Samuthiram (supra). Referring to its earlier decision in the case of Management of Reserve Bank of India, New Delhi-vs.-Bhopal Singh Panchal, (1994) 1 SCC 541 , the Hon’ble Apex Court held that the expressions ‘honourable acquittal’, ‘acquitted of blame’, ‘fully exonerated’ etc. are unknown to the Code of Criminal Procedure or the IPC and are coined by judicial pronouncements. When the accused is acquitted after full consideration of prosecution evidence and that the prosecution had miserably failed to prove the charges levelled against the accused it can possibly be said that the accused was honourable acquitted. The Hon’ble Apex Court quoted with approval a dicta of Lort Williams, J. in the case reported in (1934) 61 ILR Cal 168 to the effect that when an accused is acquitted as fully and completely as it was possible for him to be acquitted, he can be said to have been honourably acquitted. 21. In the light of the above discussion, in my view, when a criminal court acquits an accused on contest and after considering the entire evidence on record holding that the evidence adduced does not establish or substantiate the charges brought against the accused, the accused can be said to be honourably acquitted. This is different from an acquittal simpliciter which may be for reasons like a technical defect or deficiency in the prosecution case. 22. In the instant case, the petitioner was acquitted by the Appellate Court which after considering the entire evidence on record held that the charges levelled against the petitioner was not proved. In my opinion, this was definitely an honourable acquittal. 23. 22. In the instant case, the petitioner was acquitted by the Appellate Court which after considering the entire evidence on record held that the charges levelled against the petitioner was not proved. In my opinion, this was definitely an honourable acquittal. 23. Coming to the question of back wages, I have considered Regulation 66(8) of the FCI (Staff) Regulations, 1971 carefully. The said rule vests a discretion in the disciplinary authority, appellate or reviewing authority to grant to an employee back wages for the period of his absence from duty due to dismissal if he is reinstated upon being honourably acquitted of the charges levelled against him conviction on account of which resulted in his dismissal. In the case of Vijayendra Kumar (supra), the Patna High Court came to a finding that it cannot be said that the prosecution of the employee concerned was not at the behest of the employer or that that employee did not remain out of service on account of action of the employer. Hence, the back wages were awarded to the employee concerned for the period of his absence from service. 24. In the case of State Bank of India-vs.-Mohammed Abdul Raheem (supra), the Madras High Court while noting the case of Ranchhodji Chaturji Thakore (supra) did not state in the judgment as to why the principle enunciated by the Hon’ble Apex Court in Ranchhodji (supra) was not applicable. 25. The principle that clearly emerges from the Hon’ble Apex Court’s decisions in the case of Ranchhodji Chaturji Thakore (surpa) and Jaipal Singh (supra) is that if the employer was in no way instrumental in prosecution of the employee resulting in his conviction which in turn resulted in his dismissal from service as per the prevalent rules and regulations, then even if subsequently the employee is acquitted by a higher forum, and is accordingly reinstated, the employer cannot be saddled with the liability of back wages for the period the employee was out of service. This is the law declared by the Hon’ble Apex Court. In my opinion, Rule 66(8) of the 1971 Regulations does not confer any absolute or indefeasible right on the petitioner to receive back wages for the period he was out of service. FCI had no role to play in the criminal conviction of the petitioner. This is the law declared by the Hon’ble Apex Court. In my opinion, Rule 66(8) of the 1971 Regulations does not confer any absolute or indefeasible right on the petitioner to receive back wages for the period he was out of service. FCI had no role to play in the criminal conviction of the petitioner. The dismissal of the petitioner was in strict accordance with the rules and regulations applicable to him and FCI cannot be faulted for such termination of service of the petitioner. Hence, it would be unfair, unjust and inequitable to foist the liability of back wages on FCI for the period the petitioner was out of service. 26. It is true that the discretion vested in the authorities under Rule 66(8) has to be exercised reasonably and not capriciously. Arbitrary or unreasonable exercise of a power or discretion by a public authority vitiates the resultant act or decision. In the facts of the present case, I am of the view that the authority’s exercise of the discretionary power in refusing the petitioner’s claim for back wages and allowances for the period during which he was out of service, was not unreasonable or arbitrary or in any manner violative of Art. 14 of the Constitution. It would have been so, had FCI been in any way responsible for the prosecution and consequent conviction of the petitioner. In my opinion, FCI was perfectly justified in dismissing the petitioner from service upon his conviction as it is not desirable for a public organization to have in its employment a person who has been convicted of a criminal offence. It is a public policy and in my view, a perfectly reasonable one. It is true that the sentence of the petitioner was stayed by an interim order by the Appellate Court but the fact remains that he remained a convict until his acquittal by the Appellate Court. I can find no fault on the part of the FCI which would justify making FCI liable for the back wages of the petitioner for the period of his absence from service. 27. Moreover, during the period from the date of his dismissal till the date of his reinstatement, the petitioner rendered no service to the respondent company. I can find no fault on the part of the FCI which would justify making FCI liable for the back wages of the petitioner for the period of his absence from service. 27. Moreover, during the period from the date of his dismissal till the date of his reinstatement, the petitioner rendered no service to the respondent company. Hence, directing the respondents to pay back wages to the petitioner for the period of his absence from service would, in my view, amount to unjust enrichment of the petitioner. Hence, in my opinion, the petitioner is not entitled to the wages or allowances during the period he was out of service. 28. This writ application accordingly fails and is dismissed without, however, any order as to costs. 29. Urgent certified photocopy of this judgment and order, if applied for, be given to the parties upon compliance of necessary formalities.