HIGH COURT OF MADHYA PRADESH : AT JABALPUR Writ Petition No :
7680. of 2012 Arun Kumar Shukla - V/s - Union of India and others Present : Hon’ble Shri Justice S.A.Bobde, CJ.
Hon’ble Shri Justice Rajendra Menon, J.
-------------------------------------------------------------------------------------- Shri Naman Nagrath, Senior Advocate, with Shri Swapnil Sohgoura, counsel for the petitioner.
Shri S.K.Mishra, counsel for the respondents.
-------------------------------------------------------------------------------------- Whether approved for reporting: Yes / No.ORDER
06/03/2013 Per Rajendra Menon, J :- Challenging an order-dated 1.3.2012 passed by the Central Administrative Tribunal, Jabalpur in O.A.No.30/2009, denying backwages and continuity of service to the petitioner for certain period when he remained out of service, this writ petition has been filed.
2- Facts in brief go to show that petitioner was working as a Junior Stenographer Grade III in the office of respondent No.3, at Jabalpur.
In the year 1989, the petitioner was implicated in a criminal case for offence under section 451, 376 and 506 IPC, he was put to trial in Sessions Trial No.99/1989 and by judgment dated 25.4.1990, the learned Sessions Judge convicted him to undergo various imprisonments, for periods ranging from two years to seven yeaRs.Due to his conviction in the criminal case, petitioner’s services were terminated vide order-dated 14.9.1990.
However, against his conviction Writ Petition No ::
7680. ”
2. Arun Kumar Shukla versus Union of India and otheRs.petitioner preferred Criminal Appeal bearing No.464/1990 before this Court and vide judgment-dated 8.2.2005, the conviction and sentence were set aside and the petitioner was acquitted of all the charges levelled against him.
Immediately after his acquittal on 8.2.2005, petitioner submitted an application on 21.2.2005, seeking reinstatement in service with all consequential benefits mainly on the ground that the reasons for his termination from service is no more in existence, therefore, he should be taken back in service.
When the aforesaid representation was not considered, he approached the Central Administrative Tribunal by filing O.A.No.1157, and vide order-dated 3.1.2005 the learned Tribunal disposed of the application with a direction to decide the representation of the petitioner for reinstatement within two months.
When nothing was done, Contempt Petition No.21/2006 was filed, wherein again directions were issued on 2.5.2006.
However, the petitioner was reinstated in service vide order-dated 4.5.2006, but as backwages for the period the petitioner remained out of employment i.e… from 14.9.1990 till 4.5.2006 was denied and as an order was passed treating this period on the principle of ‘no work no wage’, and as the benefit of continuity in service for the intervening period was also denied and orders were passed rejecting the same, petitioner approached the Central Administrative Tribunal and the Tribunal having rejected the claim by the impugned order-dated 1.3.2012 – Annexure P/6, this writ petition has been filed.
3- A perusal of the order passed by the Central Administrative Tribunal goes to show that the Tribunal has found that the action for termination of petitioner’s service was undertaken because of his involvement in the criminal case and after placing reliance of two judgments of the Supreme Court in the case of Ranchhodji Chaturji Thakore’s versus Superintendent Engineer, Gujarat Electricity Board and another, 1997 SCC (L&S) 491; and, another judgment in the case of Union of India and others versus Jaipal Singh, 2006 SCC (L&S) 121, it is held that the petitioner is not entitled for any benefit and his claim has been rejected.
Writ Petition No ::
7680. ”
3. Arun Kumar Shukla versus Union of India and otheRs.4- Shri Naman Nagrath, learned Senior Advocate appearing for the petitioner, took us through the facts of the case as are detailed hereinabove, the judgment passed in the criminal case and emphasized that the petitioner’s implication in the criminal case was a false one and as the allegations are not at all established, he has been acquitted of all the charges, therefore, not he is entitled not only for reinstatement in service but also all consequential benefits of full backwages for the entire period and continuity of service for all purpose.
Taking us through the findings recorded by the Tribunal and the principle laid down by the Supreme Court in the case of Ranchhodji Chaturji Thakore (supra).learned Senior Advocate emphasized that as conviction of the petitioner was the sole reason for his termination and as this conviction itself is set aside, he is entitled to be paid the entire backwages and all consequential benefits.
5- Learned counsel for the respondents refuted the aforesaid and apart from placing reliance on the judgments as indicated hereinabove, invited out attention to another judgment of the Supreme Court in the case of Baldev Singh versus Union of India, 2005(8) SCC 74.to contend that once an employee is convicted in a criminal case, his conviction being not for any act attributable to the employer, no backwages or other benefits can be granted.
It is emphasized that in this case two separate orders were passed: one denying backwages i.e… Annexure A/5 dated 4.5.2006; and, another order was passed denying continuity of service.
It is argued by learned counsel for the respondents that this subsequent order denying continuity of service is not challenged and, therefore, no benefit can be granted to the petitioner.
6- Learned counsel for the respondents emphasized that the petitioner is responsible for his conviction in the criminal case and as the act of his termination is because of his involvement in the criminal case, which ultimately resulted in his conviction, the employer cannot be saddled with the liability of payment of backwages and other consequential benefits.
Writ Petition No ::
7680. ”
4. Arun Kumar Shukla versus Union of India and otheRs.7- We have heard learned counsel for the parties at length and perused the records.
8- In the case of Ranchhodji Chaturji Thakore (supra).Supreme Court has considered the question of reinstatement of an employee whose service was terminated due to his conviction in a criminal case and the effect of the consequential acquittal in the criminal case by the appellate court and the right of an employee to claim backwages and other benefits.
9- The Supreme Court in the aforesaid case has held that once the disqualification due to which his services were terminated is wiped out due to acquittal in the criminal case, reinstatement has to be granted.
Thereafter, the only question would be with regard to entitlement for backwages and other consequential relief.
It is held that it was the conduct of the employee in involving himself in the criminal act which resulted in termination of his service.
Consequent upon his acquittal, it is held that he is entitled to be reinstated for the simple reason that the conviction, which formed the basis for his termination, is no more in existence and as the action for termination is not taken against him on the basis of any statutory service rules not any disciplinary action taken, he cannot be denied reinstatement.
However, with regard to the question of payment of backwages, it has been held by the Supreme Court in the aforesaid case that as the employee is not proceeded against and his services are not terminated by way of disciplinary proceedings, the normal rule of granting backwages on quashing of the disciplinary proceedings may not apply, but every case is required to be considered in its own circumstances and a decision has to be taken.
It has been held that normally when the conduct of the employee in involving himself in a criminal case is the reason for his termination, then consequent upon his acquittal normally he may not be entitled for backwages.
10- The question was thereafter again considered in the case of Jaipal Singh (supra) and the following principle has been laid down: “4.
…….if as a citizen the employee or a public servant got involved in a criminal case and if after the initial Writ Petition No ::
7680. ”
5. Arun Kumar Shukla versus Union of India and otheRs.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 be remained 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.”
11- In the aforesaid judgment, it has been clearly held that under law the employer is obliged to keep an employee, convicted of an offence out of service and once he is to remain out of service because of his involvement in the criminal case, he would not be entitled to backwages after his acquittal and reinstatement for the simple reason that it is the employee himself, who is responsible for his involvement in the criminal case and the employer is not obliged to pay him backwages.
12- Similar views are laid down in the case of Baldev Singh (supra).whereby backwages have been denied to an employee similarly situated.
13- Keeping in view the totality of the circumstances, we are of the considered view that the action of the respondents in denying backwages to the petitioner cannot be found fault with.
However, once the employee has been reinstated in service, the principle of ‘no work no wage’ for the period he remained out of employment can be applied and given effect to, for the period when the employee did not work, but as the grounds and reasons for which the service is terminated is no more in existence and the employee is acquitted of the charges levelled against him and his conviction is also set aside, there is no reason for denying him continuity of service for the intervening period so far as his case for grant of pension and other service benefits.
14- Even though by placing reliance on the decision of Baldev Singh (supra).learned counsel for the respondents tried to emphasize that as the employee has not rendered service, the period cannot be reckoned even for grant of pension, we are of the considered view that in Writ Petition No ::
7680. ”
6. Arun Kumar Shukla versus Union of India and otheRs.the case of Baldev Singh (supra).the facts and the rules applicable were with regard to working in the armed forces.
They were entirely different whereas in the case of Ranchhodji Chaturji Thakore (supra) and Jaipal Singh (supra).the law laid down is only to deny arrears of salary or backwages for the period in question on the principle of ‘no work no wages’.
For all other purposes, the employee can be deemed to be in service.
That being so, the order passed by the learned Central Administrative Tribunal denying continuity of service for the intervening period cannot be upheld.
To that effect, relief has to be granted to the petitioner.
15- During the couRs.of hearing it was submitted by learned counsel for the petitioner that the petitioner was acquitted in the criminal case on 8.2.2005 and immediately within 15 days he submitted a representation seeking reinstatement on 21.2.2005.
Nothing was done, the representation was kept pending for more than a year and in between the petitioner had to file the original application before the Central Administrative Tribunal, had to come to this Court in a writ petition and had to initiate contempt proceedings and it is only after a period of one year and three months, that he was reinstated on 4.5.2006.
That being so, learned counsel argues that petitioner is entitled to backwages atleast from 8.2.2005 i.e….
the date of his acquittal in the criminal case, when the disqualification attached to his engagement in service came to an end.
16- We find some force in this submission of the petitioner.
When the petitioner was acquitted on 8.2.2005 and when he submitted a representation on 21.2.2005, the respondents should have decided the representation in accordance to law within a reasonable time of atleast three months.
Keeping the matter pending for a period of more than a year and three months was not appropriate.
In that view of the matter, we are of the considered view that after his acquittal on 8.2.2005, petitioner is entitled to be treated as reinstated in service and granted the consequential benefit of arrears of salary after a period of three months of his submitting the representation on 21.2.2005.
Writ Petition No ::
7680. ”
7. Arun Kumar Shukla versus Union of India and otheRs.17- Accordingly, this petition is allowed in part.
Impugned order-dated 1.3.2012 – Annexure P/6, passed by the Central Administrative Tribunal, denying arrears of salary to the petitioner, for the period he remained out of service is upheld.
To that effect, the order passed by the Administrative Tribunal is upheld.
However, on his acquittal and reinstatement in service, the petitioner shall be granted continuity of service for the entire period he remained out of employment i.e… from the date of his termination on 14.9.1990, till his reinstatement and for the said period except for payment of actual salary i.e… backwages – on the principle of ‘no work no wage’, the period shall be treated as continued in service for the purpose of all other service benefits.
18- As the respondents have kept the matter pending for a period of more than a year and three months even after acquittal of the petitioner, respondents are directed to treat the petitioner to have been reinstated in service with effect from 21.5.2005 i.e….
after a period of three months of his submitting the representation seeking reinstatement in service.
With effect from 21.5.2005, petitioner shall be deemed to be reinstated and all backwages and arrears of salary paid.
The entire claim in this regard be settled within a period of two months, from the date of receipt of certified copy of this order.
19- With the aforesaid, the petition stands allowed in part and disposed of.
( S.A.BOBDE ) ( RAJENDRA MENo.) CHIEF JUSTICE JUDGE Aks/-