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2023 DIGILAW 309 (RAJ)

Saroj Agarwal v. State of Rajasthan

2023-01-27

ANOOP KUMAR DHAND

body2023
ORDER 1. This petition has been filed by the petitioner with the following prayer: 'It is, therefore, humbly prayed that the Hon'ble Court may kindly be pleased to allow the writ petition and by appropriate writ order or direction the order dated 23.06.2015 so far it is relates to denial of pay and allowances from the date of suspension i.e. 04.09.2006 to the date of termination i.e. 28.12.2007 despite treating it to be the period spend on duty and the period from 28.12.2007 to 08.05.2015 by treating it to be non working may kindly be quashed and set aside and the respondents be directed to grant all consequential benefits to the petitioner from 04.09.2006 to 08.05.2015 including pay and allowances for the said period. Or any other appropriate relief which this Hon'ble Court deems fit and proper may kindly be passed in favour of the petitioner.' Learned counsel for the petitioner submits that the petitioner was working on the post of Lower Divisional Clerk (LDC). Counsel submits that the petitioner was arrested in a Criminal Case lodged against her for the offence under Section 302 and 120B IPC. On the basis of her arrest, she was placed under suspension on 04.09.2006 and she remained under suspension till 13.09.2007. When the petitioner was convicted for the offence under Section 302 and 120B IPC by the Court of Additional Sessions Judge, Rajgarh, Alwar in Sessions Case No.38/2006 and she was sentenced to undergo life imprisonment. Counsel submits that on the basis of judgment of conviction dated 13.09.2007, the services of the petitioner were terminated vide order dated 28.12.2007. Counsel submits that against the judgment of conviction and sentence dated 13.09.2007, the petitioner submitted D.B. Criminal Appeal No.1651/2007 before this Court and the same was allowed by this Court vide judgment dated 08.05.2015 and the petitioner was acquitted from all the charges. Counsel submits that after the judgment of acquittal, the petitioner was reinstated back in service by the respondents vide order dated 23.06.2015 with the following terms and conditions: 1. Since the petitioner was acquitted by giving the benefit of doubt, hence the suspension period of the petitioner w.e.f. 04.09.2006 to 28.12.2007 was treated as a suspension period for the purpose of counting the service of the petitioner no pay and allowances or any additional difference amount was paid for this intervening period. 2. Since the petitioner was acquitted by giving the benefit of doubt, hence the suspension period of the petitioner w.e.f. 04.09.2006 to 28.12.2007 was treated as a suspension period for the purpose of counting the service of the petitioner no pay and allowances or any additional difference amount was paid for this intervening period. 2. With effect from 28.12.2007 to 08.05.2015 was treated as dies non and no pay and other allowances were given for this period. 3. All other service benefits were granted to the petitioner w.e.f. 08.05.2015 i.e. from the date of his acquittal. 4. Counsel submits that so far as the condition No.3 is concerned, the petitioner is not aggrieved. The petitioner is aggrieved by the Condition Nos.1 and 2. Counsel submits that the petitioner has been given honourable acquittal by this Court, hence, she is entitled to get all service benefits including pay grade, increments etc. for the purpose of counting her pensionary service. Counsel submits that before passing the impugned order dated 28.12.2007, no opportunity of hearing was provided to the petitioner which has resulted in violation of principle of natural justice. Counsel submits that under similar circumstances in the case of State of Rajashtan and Anr. vs. Mangat Lal Sidana (Civil Appeal No.2386/2022), the Hon'ble Apex Court had dealt with an identical issue and held that the employee must be given an opportunity before passing any adverse order against him under Rule 54(2) and 54(3) of the Rajasthan Services Rules (for short 'RSR'). Apart from above, counsel for the petitioner has placed reliance on the judgment of Hon'ble Apex Court in the case of State of Punjab vs. Shambu Nath Singla (Civil Appeal No.11459/1995). He has also placed reliance on the judgment of this Court in the case of Nemi Chand vs. State of Rajasthan and Ors. Reported in 2004(5) WLC 642 and Indra Raj Barupal vs. The State of Rajashtan and Ors. (S.B. Civil Writ Petition No.6700/2007) and the judgment of Punjab and Haryana High Court in the case of Shiv Kumar Goel vs. State of Haryana and Anr. (Civil Writ Petition No.1338/2003). Counsel submits that under these circumstances, interference of this Court is warranted. It was also argued by the counsel for the petitioner that the petitioner stood retired on 13.11.2022 after attaining the age of superannuation, so appropriate writ order or directions be passed in favour of the petitioner. 5. (Civil Writ Petition No.1338/2003). Counsel submits that under these circumstances, interference of this Court is warranted. It was also argued by the counsel for the petitioner that the petitioner stood retired on 13.11.2022 after attaining the age of superannuation, so appropriate writ order or directions be passed in favour of the petitioner. 5. Per contra, learned counsel for the State - respondent opposed the arguments raised by the counsel for the petitioner and submitted that the petitioner was involved in the offence of moral turpitude and she was arrested in a criminal case lodged against her for the offence under Sections 302 and 120B IPC. The petitioner remained in custody for more than 48 hours, hence, she was placed under suspension on 04.09.2006 and thereafter, she faced the trial for the above offences and finally she was convicted by the competent Court of law vide judgment dated 13.09.2007. Counsel submits that on the basis of the said judgment, services of the petitioner were terminated vide order dated 28.12.2007. Counsel submits that though in appeal the petitioner has been acquitted from all the charges but she has not been given honourable acquittal but she was given benefit of doubt by this Court while passing the judgment dated 08.05.2015. Counsel submits that the petitioner has been reinstated back in service as per law vide order dated 23.06.2015 and the respondents have not committed any error in putting condition Nos.1 and 2. So, interference of this Court is not warranted. In support of his contentions, he has placed reliance on the judgment of this Court in the case of Laxman R. Pinjani vs. RSRTC and Ors. (S.B. Civil Writ Petition No.2588/2005). 6. Heard and considered the rival submissions made at the Bar and perused the material available on the record. 7. The undisputed facts of this case are that the petitioner was arrested in Criminal Case for the offence under Section 302 read with Section 120B IPC and she remained in custody for more that 48 hours. Hence under Rule 13 of the CCA Rules of 1958, she was placed under suspension and she remained under suspension till conclusion of the trial in the criminal case. The petitioner was found guilty of the above offences and she was convicted and sentenced to undergo life sentence by the Additional Sessions Judge, Rajgarh, Alwar in Sessions Case No38/2006 vide judgment dated 13.09.2007. The petitioner was found guilty of the above offences and she was convicted and sentenced to undergo life sentence by the Additional Sessions Judge, Rajgarh, Alwar in Sessions Case No38/2006 vide judgment dated 13.09.2007. This fact is also not in dispute that the services of the petitioner were terminated vide order dated 28.12.2007. This fact is also not disputed that the petitioner submitted D.B. Criminal Appeal No.1651/2007 before this Court which was allowed by this Court on 08.05.2015 by giving her benefit of doubt and it was observed by the Division Bench of this Court in para No.25 as under: '25. A critical and holistic analysis of the evidence clearly reveals that the prosecution has failed to travel the distance between 'may be true' and 'must be true'. Although the prosecution has produced certain evidence, but there are too many pieces of the jigsaw puzzle, which are conspicuously missing. The evidence is neither cogent no convincing for upholding the conviction of the appellants for the alleged crime. Therefore, we grant benefit of doubt to the appellants.' 8. This fact is also not in dispute that the petitioner was reinstated back in service by the respondents vide order dated 23.06.2015 and she has been given all service benefits w.e.f. the date of the judgment of her acquittal i.e. 08.05.2015. Now, the only question which remains for consideration of this Court is whether the petitioner is entitled to get the service benefits w.e.f. the date when she was placed under suspension and she remained suspended till the date of her termination from service i.e. from 04.09.2006 to 28.12.2007. Now the question before this Court is to decide whether reasons assigned by the State respondents in the impugned order for not making the payment of salary and allowances for the period of suspension till the date of termination, are valid or relevant reasons and if so, whether said reasons justify the decision of the authority to deny the petitioner said benefits. The competent authority in the impugned order has mentioned the allegations against the petitioner that initially she was found guilty for the offence under Section 302 read with Section 120B IPC by the Court of Additional Sessions Judge, Rajgarh, District Alwar but she was given benefit of doubt by the High Court in the appeal submitted by the appellant. 9. The competent authority in the impugned order has mentioned the allegations against the petitioner that initially she was found guilty for the offence under Section 302 read with Section 120B IPC by the Court of Additional Sessions Judge, Rajgarh, District Alwar but she was given benefit of doubt by the High Court in the appeal submitted by the appellant. 9. Refusal of backwages to an employee by employer on account of her absence from duty due to involvement in a criminal case even though at a subsequent point of time she was acquitted, was subject matter of examination by the Hon'ble Apex Court in the case of Ranchhodiji Chaturji Thakore v. Superintendent Engineer, Gujarat Electricity Board, AIR 1997 Supreme Court 1802. Although, that was a case where the question directly in issue was with regard to the back-wages, but back-wages would also include the amount of difference between salary and allowances minus subsistence allowances and therefore this decision would apply to the facts of the present case. The Hon'ble Supreme Court in the said case observed as under:- '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 in 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 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.' 10. Each case required 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.' 10. Reiterating the same view, Honble Apex Court in the Case of Union of India vs. Jaipal Singh, AIR 2004 Supreme Court 1005 has held as under: '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 which 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. The appellants are well within their rights to deny backwages to the respondents 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 backwages also, without adverting to all such relevant aspects and considerations.' 11. Similarly the Division Bench of this Court in the case of Hindustan Zinc Ltd. Udaipur vs. Radhey Lal, 2007 (1) SCT 446 (D.B. Civil Special (W) No.553/2004) has dealt with the same issue as under: 'In that case the employee was suspended in connection with criminal case for offence under Section 307 and 302 IPC. The trial Court convicted him for the offence under Section 302 IPC and awarded sentence to him RL for five years by judgment dated 23.8.1989. Although initially he was only placed under suspension but later on he was removed from service. In appeal however he was acquitted by this Court. On his representation the employee was reinstated in service on 14.8.1991. He thereafter made representation to the employer for grant of arrears of salary from the date of his suspension till his reinstatement. Although initially he was only placed under suspension but later on he was removed from service. In appeal however he was acquitted by this Court. On his representation the employee was reinstated in service on 14.8.1991. He thereafter made representation to the employer for grant of arrears of salary from the date of his suspension till his reinstatement. The Single Judge of this Court relying upon the Standing orders of M/s. Hindustan Zinc Ltd. upheld the claim of the respondent with the direction to treat entire period of his absence in connection with the criminal case as spent on duty and pay him emoluments including consequential benefits as stated at the outset. While allowing the appeal of M/s. Hindustan Zinc Ltd., the Division Bench held that the appellant did not earn clean acquittal nor the court disbelieved the prosecution case. In the facts and circumstances of the case, he was held to have exercised right to private defence and given benefit of doubt. The court held that the circumstances in which the employee did not perform duty not being attributable to the management, there being no order of the management placing the respondent under suspension and thereby preventing him from performing duties, the management cannot be saddled with the burden of salary for the period during which he did not work and for which the appellants cannot be blamed.' 12. In the instant case, it is clear that the petitioner was convicted by the trial Court and acquitted by this Court and she was placed under suspension after her arrest in the aforesaid criminal case till the date of her termination from service. 13. It is note worthy to mention here that she was acquitted from the charges by this Court by giving the benefit of doubt. 14. The order of suspension can be categorized in two classes. While first class can be of the class where the employees are placed under suspension on account of initiation/contemplation of disciplinary proceedings whereas the other category can be of those who are suspended on account of their involvement in some criminal case leading to their eventual prosecution. So far as suspension orders belonging to first category are concerned, the incumbent can have legitimate claim, for payment of difference of pay and subsistence allowance if the disciplinary proceedings initiated against him has ultimately resulted in his complete exoneration. So far as suspension orders belonging to first category are concerned, the incumbent can have legitimate claim, for payment of difference of pay and subsistence allowance if the disciplinary proceedings initiated against him has ultimately resulted in his complete exoneration. The suspensions pertaining to second category case, however are resulted on account of conduct of the employee in involving himself in the crime, which is in no way related to his working in the department and the prosecution if eventually results in his acquittal either by the trial Court or in the appeal, by the appellate Court on the ground of benefit of doubt, the employer should certainly have the discretion to decide whether or not to grant to such employee payment of difference of the amount of pay and subsistence allowance and in doing so, the nature of charges/allegations against the employee shall be a relevant factor. 15. In view of the aforesaid discussion, I do not find any merit in the writ petition and the same is hereby dismissed. 16. No order as to costs.