Dr Prabhat Kumar Gupta Vs. Coal India Limited Through Its Chairman Cum Managing Director and ors - Court Judgment

SooperKanoon Citationsooperkanoon.com/1008858
CourtJharkhand High Court
Decided OnJul-18-2013
AppellantDr Prabhat Kumar Gupta
RespondentCoal India Limited Through Its Chairman Cum Managing Director and ors
Excerpt:
in the high court of jharkhand at ranchi w.p.(s) no 448 of 2013 dr. prabhat kumar gupta ... petitioner versus 1. coal india limited through its chairman-cum-managing director, kolkata (west bengal).2. m/s. bharat coking coal limited through its chairman-cum-managing director, dhanbad.3. chief manager (personnel), m/s. bharat coking coal limited, dhanbad. .....respondents for the petitioner :m/s. p. a. s. pati, & raunak sahay advocates for the respondents : mr. ananda sen, advocate. coram: hon'ble mr. justice shree chandrashekhar 02 18.7.2013 the petitioner has approached this court for the following reliefs: (i) for issuance of an appropriate writ/order/direction for quashing that part of the order dated 14/15.11.2011 issued under the signature of the chairman-cum-managing director, coal india limited whereby it has been ordered that no back wages shall be paid for the period the petitioner was purportedly absent from duty. (ii) for further issuance of a writ/order or direction for quashing the letter dated 16.07.2012 issued under the signature of chief manager(p)/hod(ee) whereby the representation of the petitioner for pecuniary benefits on his reinstatement has been purportedly rejected by an officer who has absolutely no jurisdiction and authority to deal with this matter. (iii) upon quashing of the aforesaid orders/letters, a further writ/order or direction be issued commanding upon the respondents to forthwith pay the salary from the date of his removal till the date of his reinstatement along with all consequential benefits including notional seniority etc. (iv) any other appropriate writ(s), order(s) or direction(s) as may be deemed fit and proper.2. the brief facts of the case are that, the petitioner was appointed as medical officer on 14.12.1990. o”26. 8.1993 a case being rc case no. 17 (a)/93-d was registered on the allegation that the petitioner was caught red-handed while taking bribe of rs. 100/-. the petitioner was convicted by the trial court by judgment and order dated 30th november, 2001 and by order dated 22.7.2002 the petitioner was dismissed from service. the petitioner took the matter to the hon'ble supreme court and by order dated 07.9.2010 the criminal appeal preferred by the petitioner has been allowed. the petitioner, thereafter moved to his employer for his reinstatement in service and by order dated 14/15.11.2011 the petitioner has been reinstated in service with immediate effect however, it has been stated that no back wages during the said period would be paid to the petitioner. aggrieved by the order whereby it has been ordered that petitioner would not be entitled for back wages during the period of his absence from duty, the petitioner has approached this court by filing the present writ petition.3. heard learned counsel for the parties and perused the documents on record.4. learned counsel appearing for the petitioner has raised a contention that after the acquittal from the criminal charges and subsequent reinstatement in service, the petitioner is entitled for grant of back wages and other consequential benefits, of which the petitioner has been deprived of by the impugned order dated 14/15.11.2011. relying on the judgments of the hon'ble supreme court in deputy director of collegiate education (administration), madras vs. s. nagoor meera, reported in (1995) 3 scc 37.and in k.c. sareen vs. cbi, chandigarh reported in (2001)6 scc 584.the learned counsel for the petitioner has contended that upon reinstatement, the petitioner is entitled for grant of all the benefits as if he was in service.5. mr. ananda sen, learned counsel appearing for the respondents has submitted that the petitioner was involved in 3 criminal case and the company was not the complainant/informant of the said case and it is not the act of the employer pursuant to which criminal proceeding was initiated against the petitioner, therefore, the petitioner is not entitled for grant of any back wages. relying on the decision of the hon'ble supreme court in union of india and others vs. jaipal singh, reported in (2004) 1 scc 121.and ranchhodji chaturji thakore vs. superintendent engineer, gujrat electricity board, himmatnagar (gujrat) and another, reported in (1996)11 scc 603.the learned counsel for the respondents submits that since it was not any act or omission on the part of the employer due to which the petitioner was prevented from discharging his duties, the petitioner cannot be granted back wages for the said period.6. before adverting the contentions raised on behalf of the counsel for the parties, it would be useful to notice the judgments of the hon'ble supreme court relied upon by the counsel for the parties.7. in deputy. director of collegiate education (administration), madras vs. s. nagoor meera, reported in (1995) 3 scc 377.the hon'ble supreme court has held as under:9. the tribunal seems to be of the opinion that until the appeal against the conviction is disposed of, action under clause (a) of the second proviso to article 311(2) is not permissible. we see no basis or justification for the said view. the more appropriate course in all such cases is to take action under clause (a) of the second proviso to article 311(2) once a government servant is convicted of a criminal charge and not to wait for the appeal or revision, as the case may be. if, however, the government servant-accused is acquitted on appeal or other proceeding, the order can always be revised and if the government servant is reinstated, he will be entitled to all the benefits to which he would have been entitled to had he continued in service.8. in k.c. sareen vs. cbi, chandigarh, reported in (2001) 6 scc 584.the hon'ble supreme court has observed as under:14. we are fortified in holding so by two other decisions of this court. one is dy. director of collegiate education 4 (admn.) v. s. nagoor meera. the following observations of this court are apposite now: (scc p. 381, para9) the more appropriate course in all such cases is to take action under clause (a) of the second proviso to article 311(2) once a government servant is convicted of a criminal charge and not to wait for the appeal or revision, as the case may be. if, however, the accused government servant is acquitted on appeal or other proceeding, the order can always be revised and if the government servant is reinstated, he will be entitled to all the benefits to which he would have been entitled to had he continued in service. the other course suggested, viz., to wait till the appeal, revision and other remedies are over, would not be advisable since it would mean continuing in service a person who has been convicted of a serious offence by a criminal court.9. in ranchhodji chaturji thakore vs. superintendent engineer, gujrat electricity board, himmatnagar (gujrat) and another, reported in (1996) 11 scc 60., the hon'ble supreme court has held as under :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 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 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.10. in union of india and others vs. jaipal singh, reported in (2004) 1 scc 121.the hon'ble supreme court has held as under :4. 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 5 accepted that an order rejecting a special leave petition at the threshold without detailed reasons therefor does not constitute any declaration of law by this court or constitute a binding precedent. per contra, the decision relied upon by the appellant is one on merits and for reasons specifically recorded therefor it operates as a binding precedent as well. on going through the same, we are in respectful agreement with the view taken in ranchhodji. if prosecution, which ultimately resulted in acquittal of the person concerned was at the behest of or by the 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 reinstatement cannot be sustained and the respondent has to be reinstated 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 insofar as it directed payment of back wages is liable to be and is hereby set aside.5. 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 reinstatement, if not already done, in terms of the order of the high court will be done within thirty days from today.11. from the above discussion, it is clear that an employee who was involved in a criminal case, which was not initiated at the instance of the employer, is not entitled for grant of back wages however, the employee would be entitled for grant of back wages from the date of acquittal in the criminal case and other consequential benefits.12. coming to the facts of the case, it is clear that the allegation against the petitioner was of accepting bribe of 6 rs. 100/- in the year, 1993. the petitioner has been finally acquitted from the criminal charges by the hon'ble supreme court and therefore, i am of the opinion that it would serve the interest of justice if the petitioner is granted 25% back wages from the date of dismissal, which would be almost equal to the amount of back-wages, if paid from the date of acquittal. other consequential benefits would also granted to the petitioner, notionally.13. the writ petition is disposed of in the aforesaid terms. (shree chandrashekhar, j.) satyarthi /a.f.r.
Judgment:

IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(S) No 448 of 2013 Dr. Prabhat Kumar Gupta ... Petitioner Versus 1. Coal India Limited through its Chairman-cum-Managing Director, Kolkata (West Bengal).

2. M/s. Bharat Coking Coal Limited through its Chairman-cum-Managing Director, Dhanbad.

3. Chief Manager (Personnel), M/s. Bharat Coking Coal Limited, Dhanbad. .....Respondents For the Petitioner :M/s. P. A. S. Pati, & Raunak Sahay Advocates For the Respondents : Mr. Ananda Sen, Advocate. CORAM: HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR 02 18.7.2013 The petitioner has approached this Court for the following reliefs: (i) For Issuance of an appropriate writ/order/direction for quashing that part of the order dated 14/15.11.2011 issued under the signature of the Chairman-cum-Managing Director, Coal India Limited whereby it has been ordered that no back wages shall be paid for the period the petitioner was purportedly absent from duty. (ii) For further issuance of a writ/order or direction for quashing the letter dated 16.07.2012 issued under the signature of Chief Manager(P)/HOD(EE) whereby the representation of the petitioner for pecuniary benefits on his reinstatement has been purportedly rejected by an officer who has absolutely no jurisdiction and authority to deal with this matter. (iii) Upon quashing of the aforesaid orders/letters, a further writ/order or direction be issued commanding upon the respondents to forthwith pay the salary from the date of his removal till the date of his reinstatement along with all consequential benefits including notional seniority etc. (iv) Any other appropriate writ(s), order(s) or direction(s) as may be deemed fit and proper.

2. The brief facts of the case are that, the petitioner was appointed as Medical Officer on 14.12.1990. O”

26. 8.1993 a case being RC Case No. 17 (A)/93-D was registered on the allegation that the petitioner was caught red-handed while taking bribe of Rs. 100/-. The petitioner was convicted by the Trial Court by judgment and order dated 30th November, 2001 and by order dated 22.7.2002 the petitioner was dismissed from service. The petitioner took the matter to the Hon'ble Supreme Court and by order dated 07.9.2010 the Criminal Appeal preferred by the petitioner has been allowed. The petitioner, thereafter moved to his employer for his reinstatement in service and by order dated 14/15.11.2011 the petitioner has been reinstated in service with immediate effect however, it has been stated that no back wages during the said period would be paid to the petitioner. Aggrieved by the order whereby it has been ordered that petitioner would not be entitled for back wages during the period of his absence from duty, the petitioner has approached this Court by filing the present writ petition.

3. Heard learned counsel for the parties and perused the documents on record.

4. Learned counsel appearing for the petitioner has raised a contention that after the acquittal from the criminal charges and subsequent reinstatement in service, the petitioner is entitled for grant of back wages and other consequential benefits, of which the petitioner has been deprived of by the impugned order dated 14/15.11.2011. Relying on the judgments of the Hon'ble Supreme Court in Deputy Director of Collegiate Education (Administration), Madras Vs. S. Nagoor Meera, reported in (1995) 3 SCC 37.and in K.C. Sareen Vs. CBI, Chandigarh reported in (2001)6 SCC 584.the learned counsel for the petitioner has contended that upon reinstatement, the petitioner is entitled for grant of all the benefits as if he was in service.

5. Mr. Ananda Sen, learned counsel appearing for the respondents has submitted that the petitioner was involved in 3 criminal case and the company was not the complainant/informant of the said case and it is not the act of the employer pursuant to which criminal proceeding was initiated against the petitioner, therefore, the petitioner is not entitled for grant of any back wages. Relying on the decision of the Hon'ble Supreme Court in Union of India and Others Vs. Jaipal Singh, reported in (2004) 1 SCC 121.and Ranchhodji Chaturji Thakore Vs. Superintendent Engineer, Gujrat Electricity Board, Himmatnagar (Gujrat) and Another, reported in (1996)11 SCC 603.the learned counsel for the respondents submits that since it was not any act or omission on the part of the employer due to which the petitioner was prevented from discharging his duties, the petitioner cannot be granted back wages for the said period.

6. Before adverting the contentions raised on behalf of the counsel for the parties, it would be useful to notice the judgments of the Hon'ble Supreme Court relied upon by the counsel for the parties.

7. In Deputy. Director of Collegiate Education (Administration), Madras Vs. S. Nagoor Meera, reported in (1995) 3 SCC 377.the Hon'ble Supreme Court has held as under:

9. The Tribunal seems to be of the opinion that until the appeal against the conviction is disposed of, action under clause (a) of the second proviso to Article 311(2) is not permissible. We see no basis or justification for the said view. The more appropriate course in all such cases is to take action under clause (a) of the second proviso to Article 311(2) once a government servant is convicted of a criminal charge and not to wait for the appeal or revision, as the case may be. If, however, the government servant-accused is acquitted on appeal or other proceeding, the order can always be revised and if the government servant is reinstated, he will be entitled to all the benefits to which he would have been entitled to had he continued in service.

8. In K.C. Sareen Vs. CBI, Chandigarh, reported in (2001) 6 SCC 584.the Hon'ble Supreme Court has observed as under:

14. We are fortified in holding so by two other decisions of this Court. One is Dy. Director of Collegiate Education 4 (Admn.) v. S. Nagoor Meera. The following observations of this Court are apposite now: (SCC p. 381, para

9) The more appropriate course in all such cases is to take action under clause (a) of the second proviso to Article 311(2) once a government servant is convicted of a criminal charge and not to wait for the appeal or revision, as the case may be. If, however, the accused government servant is acquitted on appeal or other proceeding, the order can always be revised and if the government servant is reinstated, he will be entitled to all the benefits to which he would have been entitled to had he continued in service. The other course suggested, viz., to wait till the appeal, revision and other remedies are over, would not be advisable since it would mean continuing in service a person who has been convicted of a serious offence by a criminal court.

9. In Ranchhodji Chaturji Thakore Vs. Superintendent Engineer, Gujrat Electricity Board, Himmatnagar (Gujrat) and Another, reported in (1996) 11 SCC 60., the Hon'ble Supreme Court has held as under :

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 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 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.

10. In Union of India and Others Vs. Jaipal Singh, reported in (2004) 1 SCC 121.the Hon'ble Supreme Court has held as under :

4. 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 5 accepted that an order rejecting a special leave petition at the threshold without detailed reasons therefor does not constitute any declaration of law by this Court or constitute a binding precedent. Per contra, the decision relied upon by the appellant is one on merits and for reasons specifically recorded therefor it operates as a binding precedent as well. On going through the same, we are in respectful agreement with the view taken in Ranchhodji. If prosecution, which ultimately resulted in acquittal of the person concerned was at the behest of or by the 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 reinstatement cannot be sustained and the respondent has to be reinstated 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 insofar as it directed payment of back wages is liable to be and is hereby set aside.

5. 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 reinstatement, if not already done, in terms of the order of the High Court will be done within thirty days from today.

11. From the above discussion, it is clear that an employee who was involved in a criminal case, which was not initiated at the instance of the employer, is not entitled for grant of back wages however, the employee would be entitled for grant of back wages from the date of acquittal in the criminal case and other consequential benefits.

12. Coming to the facts of the case, it is clear that the allegation against the petitioner was of accepting bribe of 6 Rs. 100/- in the year, 1993. The petitioner has been finally acquitted from the criminal charges by the Hon'ble Supreme Court and therefore, I am of the opinion that it would serve the interest of justice if the petitioner is granted 25% back wages from the date of dismissal, which would be almost equal to the amount of back-wages, if paid from the date of acquittal. Other consequential benefits would also granted to the petitioner, notionally.

13. The writ petition is disposed of in the aforesaid terms. (Shree Chandrashekhar, J.) Satyarthi /A.F.R.