Research › Search › Judgment

Uttarakhand High Court · body

2019 DIGILAW 62 (UTT)

Krishan Kant Anand v. Union of India

2019-02-11

R.C.KHULBE, RAMESH RANGANATHAN

body2019
JUDGMENT : RAMESH RANGANATHAN, J. 1. Heard Mr. Navnish Negi, learned counsel for the petitioner and Mr. Shobhit Saharia, learned counsel for respondent nos. 2 & 3. 2. The petitioner invoked the jurisdiction of this Court seeking a writ of mandamus to quash the order dated 08.02.2014 passed by the Director(Personal)/Appointing Authority, which was issued on the basis of the recommendations dated 06.02.2014 and 08.02.2017 passed by the General Manager(Project)/Disciplinary Authority removing the petitioner from service with effect from 06.02.2014 because of his conviction under Section 373/34 IPC by the First Upper Class Session Judge(ADJ-First), Rishikesh, District Dehradun in Case No. ST 97 of 2010 in FIR No. 314 of 2003 vide judgment dated 30.01.2014, which was set aside by this Court by its order dated 11.01.2017 setting aside the impugned order and judgment dated 30.01.2014; and a writ of mandamus commanding the respondent to reinstate the petitioner in the post of Deputy Manager and extend all consequential service benefits and costs to respondents and pay him salary with effect from 06.02.2014 with admissible interest. 3. Facts, to the limited extent necessary, are that a criminal complaint was lodged against the petitioner under Section 373 IPC read with Section 34 thereof (FIR No.314 of 2003). The petitioner was removed from service by order dated 14.10.2010. The appeal preferred by the petitioner there-against was dismissed by order dated 21.03.2011. The petitioner filed Writ Petition No.108 of 2011 which was allowed by the order of Division Bench of this Court dated 21.03.2013, and the respondents were directed to reinstate the petitioner with all consequential benefits and back wages. 4. Aggrieved thereby, the respondent-corporation carried the matter in appeal to the Supreme Court which, by its order in Special Leave to Appeal (Civil) No.16834 of 2013 dated 02.05.2013, dismissed the appeal expressing its dismay over the manner in which the corporation had dealt with the petitioner. The Supreme Court found it intriguing that the concerned authority had revoked the suspension of the first respondent despite the fact that he was accused of committing a serious crime, and opined that they were satisfied that the concerned authority had revoked the suspension for reasons which had no bearing on public interest or the service of the corporation. 5. The Supreme Court found it intriguing that the concerned authority had revoked the suspension of the first respondent despite the fact that he was accused of committing a serious crime, and opined that they were satisfied that the concerned authority had revoked the suspension for reasons which had no bearing on public interest or the service of the corporation. 5. The Supreme Court further observed that failure of the concerned authority to lead evidence to prove the allegations leveled against the writ petitioner demonstrated that they had not dealt with the issue with the requisite seriousness. While making it clear that the respondent-corporation was free to place the writ petitioner under suspension, and to hold fresh inquiry, the Supreme Court expressed its hope and trust that the officers of the corporation would show guts to suspend a person who was being prosecuted for a serious offence. It was also made clear that the observations contained in the said order shall not prejudice the defence of the petitioner who shall be free to contest the charge on all legally permissible grounds. 6. On the allegations that he was found in the company of two women, in a room in the field hostel of the Corporation on 24.06.2005, the petitioner was again placed under suspension on 30.06.2005, and was removed from service on 21.01.2011. Yet again on 28.01.2009, on the allegation that he was found in the company of two women in a car, the petitioner was removed from service by proceedings dated 26.02.2011. Questioning both the orders of removal dated 21.01.2011 and 26.02.2011, the petitioner filed WPSB No. 121 of 2013. A Division Bench of this Court in its order dated 15.07.2013, after taking note of the submission of the corporation that the termination orders were being withdrawn unconditionally, observed that this would not prevent the employer to initiate appropriate disciplinary action against the petitioner, if the employer so thought fit and the same should be concluded in accordance with the Disciplinary Rules applicable to an employee of the corporation. 7. While matters stood thus, the petitioner was convicted by the Additional District Judge First, Rishikesh for offences under Section 373 r/w Section 34 IPC, with respect to the compliant lodged in FIR No. 314 of 2003. 7. While matters stood thus, the petitioner was convicted by the Additional District Judge First, Rishikesh for offences under Section 373 r/w Section 34 IPC, with respect to the compliant lodged in FIR No. 314 of 2003. The Additional District Judge, Rishikesh, in his judgment in S.T. No. 97 of 2010 dated 30.01.2014, held the petitioner guilty of the offences punishable under Section 373 R/w Section 34 IPC, and awarded him a sentence of imprisonment of 5 years along with a fine of Rs.5,000/-. Pursuant to the order of conviction, the petitioner was removed from service vide order dated 08.02.2014. 8. Aggrieved thereby, the petitioner preferred an appeal, and a learned Single Judge of this Court, by order dated 11.01.2017 in Criminal Appeal No. 41 of 2014, held that the prosecution had failed to prove its case against the petitioner/accused beyond reasonable doubt. An adverse inference was drawn against the prosecution for non-examining the material witnesses, though they were readily available, to complete the chain of events. The learned Judge held that the prosecution had failed to prove the case against the accused beyond reasonable doubt. The order of the First Additional District Judge was set aside, and the bail bonds were discharged. Pursuant to the order of the learned Single Judge dated 11.01.2017, the petitioner was reinstated into service on 13.02.2017. He was, however, denied back wages for the period from 08.02.2014, when he was removed from service pursuant to his conviction by judgment dated 30.01.2014, till he was reinstated on 13.02.2017 i.e., for a period of three years. Questioning his being denied back wages for the aforesaid period, the petitioner has invoked the jurisdiction of this Court. 9. He was, however, denied back wages for the period from 08.02.2014, when he was removed from service pursuant to his conviction by judgment dated 30.01.2014, till he was reinstated on 13.02.2017 i.e., for a period of three years. Questioning his being denied back wages for the aforesaid period, the petitioner has invoked the jurisdiction of this Court. 9. Shri Navnish Negi, learned counsel for the petitioner, would submit that, since the order of conviction has been set aside in appeal, the petitioner is entitled to be paid his back wages from the date of his removal from service on 08.02.2014, pursuant to the order of conviction dated 30.01.2014, as the effect of the appellate order is that there is no conviction in the eye of law, and the petitioner must therefore be deemed to have been in service throughout from the date of his removal i.e. 08.02.2014; Rule 25 of the Tehri Hydro Development Corporation Limited Disciplinary Rules relates to the treatment of period of suspension; the said rule must be read in conjunction with Rule 26 of the said Rules which prescribes penalties; the punishment of removal from service, imposed on the petitioner, is under Rule 26(i) of the said Rules; a Division Bench of this Court, while interpreting a similar Rule with respect to the very same corporation, and in relation to an accused against whom an order of conviction was passed by the common order dated 30.10.2014, had, in its order in Special Appeal No. 638 of 2018 dated 22.10.2018, directed that the said employee shall be deemed to have been reinstated, from the date he was terminated, with all consequential benefits, including back wages, by applying the principle of severability; and, in the light of the judgment of the Division Bench, in Special Appeal No. 638 of 2018 dated 22.10.2018, the petitioner herein is also entitled for a similar relief. 10. 10. On the other hand, Shri Shobhit Saharia, learned counsel for the respondent-corporation, would submit that the petitioner was removed from service in terms of Rule 33 of the CDA rules on his conviction in a criminal case; it was only because the said order of conviction was set aside in appeal by this Court by its order dated 11.01.2017, was the corporation required to reinstate him into service; the corporation was obligated to remove the petitioner from service on his conviction in a criminal case in view of the Rule 33 of the CDA Rules; the petitioner did not discharge any duties with the corporation for the period from the date of his removal from service on 08.02.2014 till he was reinstated by order dated 13.02.2017; the corporation was, therefore, justified in denying him pay and emoluments for the period he did not work; the judgment of the Division Bench, on which the petitioner has placed reliance upon (Judgment in Special Appeal No.638 of 2018 dated 22.10.2018), related to an employee working as a helper in Grade-II in the respondent-corporation who was governed by the certified standing orders, unlike the petitioner who is an Executive and is governed by CDA Rules; in any event the attention of the Division Bench was not drawn to the judgments of the Supreme Court in Ranchoorji Chaturji Thakore Vs. Superintendent Engineer, Gujarat Electricity Board, Himmatnagar (Gujarat) and Another (1996) 11 SCC 603 ; Union of India and Others Vs. Jaipal Singh (2004) 1 SCC 121 ; Baldev Singh Vs. Union of India and Others (2005) 8 SCC 747 and Bansi Dhar Vs. State of Rajasthan and Another (2007) 1 SCC 324 ; and, in the light of the aforesaid judgments of the Supreme Court, reliance placed on behalf of the petitioner on the judgment of the Division Bench of this Court in Special Appeal No.638 of 2018 dated 22.10.2018 is of no avail. 11. It is not in dispute that the services of the petitioner are governed by the Conduct, Discipline & Appeal Rules of the respondent-corporation which are called the Tehri Hydro Development Corporation Disciplinary Rules (herinafter called, the Rules). 11. It is not in dispute that the services of the petitioner are governed by the Conduct, Discipline & Appeal Rules of the respondent-corporation which are called the Tehri Hydro Development Corporation Disciplinary Rules (herinafter called, the Rules). Rule 3(A) defines an employee to mean a person in the full time employment of the Undertaking other than a casual or a contingent paid Staff or a workman as defined in the Industrial Employment (Standing Orders) Act, 1946, but includes a person on deputation/ contract. 12. Rule 25 of the Rules relates to the treatment of the period of suspension and, under Sub-rule (1) thereof, when the employee under suspension is reinstated, the Competent Authority may grant him the following pay and allowances for the period of suspension: (a) If the employee is exonerated and not awarded any of the penalties mentioned in Rule 26 the full pay and allowances which he would have been entiled to, if he had not been suspended, less the subsistence allowance which he would have been entitled to, if he had not been suspended, less the subsistence allowance already paid to him; and (b) If otherwise, such proportion of pay and allowances as the Competent Authority may prescribe. 13. Rule 25(2) stipulates that in a case falling under sub-clause (a) the period of absence from duty will be treated as a period spent on duty; and in cases falling under sub-clause (b) it will not be treated as a period spent on duty unless the Competent Authority so directs. 14. Rule 26 relates to penalties, and thereunder the penalties are classified as minor penalties and major penalties. The punishment of removal from service under Rule 26(i) is a major penalty. Rule 28 prescribes the procedure for imposing major penalties and, under sub-rule (1) thereof, no major penalty specified, among others, under clause (i) of Rule 26 shall be imposed except after an inquiry is held in accordance with the Rules. A detailed procedure is prescribed regarding the manner in which the inquiry is to be conducted under Rule 28. Rule 28 prescribes the procedure for imposing major penalties and, under sub-rule (1) thereof, no major penalty specified, among others, under clause (i) of Rule 26 shall be imposed except after an inquiry is held in accordance with the Rules. A detailed procedure is prescribed regarding the manner in which the inquiry is to be conducted under Rule 28. Rule 33, on the other hand, prescribes a special procedure in certain cases and thereunder, notwithstanding anything contained in Rule 28, 29 or 30, the disciplinary authority may impose any of the penalties specified in Rule 26 in any of the circumstances mentioned thereunder including (i) when the employee has been convicted on a criminal charge or on the strength of facts or conclusions arrived at by a judicial trial. 15. In view of the Rule 33(i) of the Rules, and in as much as the said rule is applicable notwithstanding anything contained in Rules 28 to 30, the Disciplinary Authority was entitled to impose any of the penalties specified under Rule 26, on the conviction of an employee on a criminal charge, even without holding a departmental inquiry. The distinction between Rules 28 to 30 on the one hand, and Rule 33 on the other, is significant. While the former requires a detailed and elaborate inquiry to be held in cases where the employer intends to impose a major penalty on an employee under Rule 26, it is unnecessary for a departmental inquiry to be held in a case where an employee is convicted on a criminal charge. Rule 25 of the Rules, on which great stress has been placed by Shri Navnish Negi, learned counsel for the petitioner, relates to the treatment of the period of suspension. As noted hereinabove, the petitioner’s earlier suspension was set aside by the order of this Court in WPSB No.108 of 2011 dated 21.03.2013, and the petitioner was directed to be reinstated forthwith with all consequential benefits. The petitioner continued to remain in service till his conviction by the Additional District Judge on 30.01.2014, and till an order of removal was passed thereafter on 08.02.2014. The petitioner continued to remain in service till his conviction by the Additional District Judge on 30.01.2014, and till an order of removal was passed thereafter on 08.02.2014. Rule 25, which relates to the treatment of the period of suspension, has no application to the facts of the present case since the petitioner was not under suspension when he was removed from service vide order dated 08.02.2014, and the said order was passed in terms of Rule 33 of Rules solely on the ground of his conviction in the criminal case. 16. It is no doubt true that the said order of conviction was set aside by this Court in Criminal Appeal No.41 of 2014 dated 11.01.2017. The question which necessitates examination is whether, consequent upon the order of this Court dated 11.01.2017 setting aside the order of conviction dated 30.01.2014, the petitioner is entitled for his salary and other emoluments from 08.02.2014 when he was removed from service consequent of his conviction on a criminal charge, or whether the respondents were justified in denying him back wages for the period of three years from 8.2.2014 when he was removed from service till he was reinstated into service on 13.02.2017. 17. As reliance is placed by Shri Navnish Negi on a judgment of Division Bench of this Court in Dharam Singh Rana Vs. Chairman-cum-Managing Director, THDC India Limited & others (Special Appeal No. 638 of 2018 dated 22.10.2018) it is necessary to refer to what the Division Bench has held therein. The appellant in Special Appeal No. 638 of 2018 was serving as a helper Grade-II in the respondent-corporation. He was also convicted under Section 373 read with Section 34 IPC by the First Additional Sessions Judge, Rishikesh vide judgment dated 30.01.2014. This judgment was set aside by a learned Single Judge of this Court in Criminal Appeal No.34 of 2014 on 11.01.2017. He was also convicted under Section 373 read with Section 34 IPC by the First Additional Sessions Judge, Rishikesh vide judgment dated 30.01.2014. This judgment was set aside by a learned Single Judge of this Court in Criminal Appeal No.34 of 2014 on 11.01.2017. The Division Bench relied on Para No. 27.6 of the standing orders governing the conditions of service of the appellant therein, and held that, since he was terminated on the basis of his conviction which was set aside, the order was upheld by the Supreme Court and no disciplinary proceedings were ever initiated against the appellant who was the accused preventing him from discharging his duties due to his conviction and since the conviction was set aside, and the appellant has also been promoted, there was no occasion for the respondent to deny him back wages from the anterior date; and the appellant was entitled to back wages. While it is no doubt true that this judgment does lend support to the submission of Shri Navnish Negi, learned counsel appearing on behalf of the petitioner, we must take note of the judgments of the Supreme Court relied upon by Shri Shobhit Saharia, learned counsel for the respondent, for, if the law declared by the Supreme Court is otherwise, it is the law declared by the Supreme Court which is binding upon the High Courts under Article 141 of the Constitution of India, and not the judgment of a Co-ordinate Division Bench of this Court, more so, as none of the judgments of the Supreme Court were noticed or referred to in the order of the Division Bench. 18. In Ranchoorji Chaturji Thakore Vs. Superintendent Engineer, Gujarat Electricity Board, Himmatnagar (Gujarat) and Another (1996) 11 SCC 603 ; the Supreme Court held:- “………..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 to 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 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 requires to be considered in his own backdrops. 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…………...(emphasis supplied) 19. Following this judgment of the Surpeme Court in Ranchoorji Chaturji Thakore Vs. Superintendent Engineer, Gujarat Electricity Board, Himmatnagar (Gujarat) and Another, a subsequent Division Bench of Supreme Court, in Union of India and Others Vs. Jaipal Singh (2004) 1 SCC 121 , observed:- ……. On a careful consideration of the matter and the materials on record, including the judgment and orders brought to our notice, we are of the view that it is well accepted that an order rejecting a special leave petition at the threshold without detailed reasons therefore does not constitute any declaration of law by this Court or constitute a binding precedent. Per contra, the decision relied upon for the appellant is one on merits and for reasons specifically recorded therefore and operates as a binding precedent as well. On going through the same, we are in respectful agreement with the view taken in (1996)11 SCC 603 . If prosecution, which ultimately resulted in acquittal of the person concerned was at the behest or by department itself, perhaps different considerations may arise. On going through the same, we are in respectful agreement with the view taken in (1996)11 SCC 603 . If 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 convincing but are in consonance with reasonableness as well. Though exception taken to that part of the order directing re-instatement cannot be sustained and the respondent has to be re-instated, in service, for the reason 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. The respondent will be entitled to back wages from the date of acquittal and except for the purpose of denying the respondent actual payment of back wages, that period also will be counted as period of service, without any break. The re-instatement, if not already done, in terms of the order of the High Court will be done within thirty days from today……….. (emphasis supplied) 20. Again in Baldev Singh Vs. Union of India and Others (2005) 8 SCC 747 the Supreme Court opined:- ……..As the factual position noted clearly indicates the appellant was not in actual service for the period he was in custody. Merely because there has been an acquittal does not automatically entitle him to get salary for the concerned period. Again in Baldev Singh Vs. Union of India and Others (2005) 8 SCC 747 the Supreme Court opined:- ……..As the factual position noted clearly indicates the appellant was not in actual service for the period he was in custody. Merely because there has been an acquittal does not automatically entitle him to get salary for the concerned period. This is more so, on the logic of no work no pay. It is to be noted that the appellant was terminated from service because of the conviction. Effect of the same does not get diluted because of subsequent acquittal for the purpose of counting service. The aforesaid position was clearly stated in Ranchhodji Chaturjj Thakore v. Superintendent Engineer, Gujarat Electricity Board, Himmatnagar (Gujarat) and Anr. (1996) 11 SCC 603 . The position was reiterated in Union of India and Ors. v. Jaipal Singh (2004) 1 SCC 121 . …….(emphasis supplied) 21. In Bansi Dhar Vs. State of Rajasthan and Another (2007) 1 SCC 324 the Supreme Court held:- “……… No hard and fast rule can be laid down in regard to grant to back wages. Each case has to be determined on its own facts. A grave charge of criminal misconduct was alleged against him. He was also found guilty of the charges leveled against him by the Special Judge. The High Court while delivering its judgment dated 16.01.2001 in S.B. Criminal Appeal No. 68 of 1985 inter alia held that the prosecution has not been able to prove that any demand had been made by him. Departmental proceedings, however, could not be held as on the date of passing of the judgment of acquittal, he had already reached his age of superannuation. The learned Counsel may be right that the decisions of this Court referred to hereinbefore involved the respective appellants therein on charge of murder under Section 302 of the Indian Penal Code, but, as noticed, it has also been laid down that each case has to be considered on its own facts. The High Court refused to exercise its discretionary jurisdiction having regard to the aforementioned decision of this Court in Ranchhodji Chaturji Thakore (supra). We do not see any reason to take a different view. Grant of back wages, it is well settled, is not automatic. The High Court refused to exercise its discretionary jurisdiction having regard to the aforementioned decision of this Court in Ranchhodji Chaturji Thakore (supra). We do not see any reason to take a different view. Grant of back wages, it is well settled, is not automatic. Even in cases where principles of natural justice have been held to have not been complied with, while issuing a direction of reinstatement, this Court had directed placing of the delinquent employee under suspension….. (emphasis supplied) 22. As has been held by the Supreme Court, in Union of India and Others Vs. Jaipal Singh, if an employee is involved in a criminal case and if, after initial conviction by the trial Court, he subsequently gets acquitted in appeal, the department cannot be faulted for having kept him out of service, since the law obliges a person, convicted of a criminal offence, to be kept out and not to be retained in service; and the employer cannot be made liable to pay for the period for which they could not avail of the services of the employee. In Baldev Singh Vs. Union of India and Others the Supreme Court observed that merely because an employee is acquitted in appeal does not automatically entitle him to get salary for the period for which he was kept out of duty consequent upon his conviction in a criminal case by the Trial Court, more so on the logic of no work no pay; and the effect of the order of conviction does not get diluted because of subsequent acquittal for the purpose of counting service. 23. As noted hereinabove, none of the aforesaid judgments of the Supreme Court were noticed by the Division Bench in Dharam Singh Rana Vs. Chairman-cum-Managing Director, THDC India Limited & others. As the law declared by the Supreme Court is binding under Article 141 of the Constitution of India, we are bound to follow the law declared by the Supreme Court, and not to be swayed by the judgment of a Co-ordinate Bench of this Court whose attention was not drawn to the aforesaid judgments of the Supreme Court. 24. As the law declared by the Supreme Court is binding under Article 141 of the Constitution of India, we are bound to follow the law declared by the Supreme Court, and not to be swayed by the judgment of a Co-ordinate Bench of this Court whose attention was not drawn to the aforesaid judgments of the Supreme Court. 24. It is unnecessary for us, therefore, to examine the contention of Shri Shobhit Saharia, learned counsel for the respondent-corporation, that the employee in Special Appeal No. 638 of 2018 dated 22.10.2018 was governed by the certified standing orders made under Industrial Employment (Standing Orders) Act, 1946, and the said judgment has no application to the case of petitioner herein who is governed by the CDA Rules, and not by the certified Standing Orders of the Corporation. 25. In the light of the law declared by the Supreme Court in the aforesaid judgments, the respondents cannot be held to have acted illegally in denying the petitioner salary and other emoluments for the period from the date of his conviction in a criminal case by the Trial Court till the date of his acquittal by the appellate court. The present special appeal fails and is, accordingly, dismissed. However, in the circumstances, without costs.