Raj Kumar Singh vs District Inspector Of Schools And ...
2012 Latest Caselaw 5974 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Court No. - 31
 
Case :- WRIT - A No. - 1647 of 2008
 
Petitioner :- Raj Kumar Singh
 
Respondent :- District Inspector Of Schools And Others
 
Petitioner Counsel :- Ravi Agrawal
 
Respondent Counsel :- C.S.C.
 
............
 

 
Hon'ble Pradeep Kumar Singh Baghel,J.

The petitioner who is a Clerk in an Intermediate College preferred this writ petition for issuance of a writ of certiorari to quash the order dated 5.12.2007 whereby his representation for payment of his salary from May, 1990 to 9.11.2003 was rejected by the respondent no.1, the District Inspector of Schools, Bulandshahar.

A brief reference to the factual aspect would suffice.

The Janta Intermediate College (for short Institution), Panchgai, district Bulandshahr is a recognized institution. A Society registered under the provisions of the Societies Registration Act, 1860 has established this institution. The institution is administered by the Committee of Management. It receives the aid from the State fund, at the level of the High School. The affairs of the institution, its teachers and employees are governed by the U.P. Intermediate Education Act, 1921; the regulations framed thereunder and U.P. Secondary Education Service Selection Board Act, 1982.

The petitioner was initially appointed in the year 1976. He was suspended on 29.10.1980 as he was made accused in a criminal case. On the said ground his services were terminated by the Committee of Management on 30.11.1980. The Committee of Management sent the papers to the District Inspector of Schools for the approval. The District Inspector of Schools accorded the approval for his termination. Aggrieved by the said order the petitioner filed an Appeal before the Deputy Director of Education who set aside the order of termination and approval of the District Inspector of Schools vide order dated 11.2.1999. He directed that the petitioner would be placed under suspension and his termination would be subject to the outcome of the criminal proceedings. In the meantime the Committee of Management appointed one Kunwarpal Singh on 18.11.1981 on temporary basis. The District Inspector of Schools approved his appointment on 2.2.1982 and he started functioning as Assistant Clerk and he was paid salary.

In criminal case no. 299 of 1980 the petitioner was acquitted of all the charges by order dated 24.7.1987 passed by the court of II Additional Munsif Magistrate, Khurja, Bulandshahar. The petitioner submitted the copy of the judgment of the trial court to the Committee of Management and on 26th August, 1988 it took a resolution to reinstate the petitioner and by the same order the salary of Kunwarpal Singh was stopped. Aggrieved by the said order Kunwarpal Singh preferred Writ Petition No. 1281 of 1990 in which on 16.1.1990 interim mandamus was issued by this Court to respondent no.1 to pay the salary of the petitioner therein (Kunwarpal Singh) or show cause. Copy of the said order of this Court is placed on record as Annexure-7 to the writ petition. The order of the Division bench is extracted hereunder for the sake of convenience:-

"Issue notice.

An interim mandamus is issued to the respondent no.1 to pay the salary to the petitioner from July, 1988 to December, 1989 and in future within a period of one month from the date a certified copy of this order is produced before him or show cause within the said period."

It appears that the authorities concerned for the reasons best known to them did not show cause and they failed to bring the correct fact to the notice of this Court that the petitioner's termination was disapproved by the Deputy Director of Education by order dated 22.1.1983 and the petitioner stood acquitted by the trial court on 24.7.1987 and in compliance of the order of the Deputy Director of Education the Committee of Management had passed a resolution to reinstate the petitioner. Without showing cause the concerned authorities preferred to comply the interim mandamus by order dated 20.7.1992 and issued an order for payment of salary to Kunwarpal Singh. The writ petition remained pending for thirteen years and ultimately it came to be dismissed on merit in the year 2003. Feeling aggrieved by the order of the learned Single Judge dated 10.11.2003 a Special Appeal No. 1301 of 2003 was filed by Kunwarpal Singh which was dismissed by order dated 3.12.2003, copy of the said order is placed on record as Annexure-8 to the writ petition. Aggrieved by the said order he filed Special Leave Petition (SLP) in the Supreme Court and his Special Leave Petition was also dismissed on 1.10.2004, copy of which is Annexure-9 to the writ petition.

Petitioner also preferred Writ Petition No. 23506 of 1991 for payment of his salary. This Court directed the District Inspector of Schools to decide his representation by a reasoned and speaking order in accordance with law within two months. Copy of the order of the learned Single Judge dated 24.7.2007 is placed on record as Annexure-10 to the writ petition. In compliance thereof the District Inspector of Schools has passed the impugned order whereby he has rejected the representation of the petitioner for the payment of his salary from May, 1990 to 9.11.2003, only on the ground that during that period the Committee of Management had appointed Kunwarpal Singh who was working on the strength of the interim order dated 16.1.1990.

Sri Pankaj Lal, learned counsel for the petitioner submits that there was no fault of the petitioner. His appeal against termination order was allowed by the Deputy Director of Education and in criminal case he was also acquitted. The Committee of Management has made illegal appointment of Kunwarpal Singh and the petitioner is entitled for his salary in terms of the order of the Deputy Director of Education dated 22.1.1983 whereby he had issued a direction that the petitioner will remain under suspension subject to the decision of the criminal court. After the acquittal on 24.7.1987 he was entitled to continue on his post.

Learned Standing Counsel submits that the petitioner did not work from May, 1990 to 9.11.2003 and as such he is not entitled for his salary during that period on the principle of no work and no pay. He further urged that Kunwarpal Singh was allowed to continue in compliance of the interim order and as such for the same period salary to two employees cannot be made.

I have heard learned counsel for the respective parties and perused the record.

The petitioner was appointed as a Clerk in the year 1976, he was implicated in a criminal case. In the said criminal case he stood acquitted on 24.7.1987. The committee of management had terminated his services which was ultimately dis-approved by the Deputy Director of Education with a direction that he would be under suspension and his continuance shall be subject to the decision of the criminal case. In the meantime the Committee of Management had appointed one Kunwarpal Singh who had worked as Assistant Clerk in the institution.

However, after the petitioner's acquittal in criminal case the Committee of Management resolved in the year 1988 to reinstate him and terminate the services of Kunwarpal Singh. Aggrieved by the order of the Committee of Management terminating Kunwarpal Singh services and permitting the petitioner to join his post after acquittal from the criminal court, Kunwarpal Singh preferred a writ petition. In the said writ petition on 16.1.1990 an interim mandamus was issued to pay his salary or show cause. The then District Inspector of Schools ought to have filed a reply/show cause by way of counter affidavit bringing the facts to the notice of this Court the order of the Deputy Director of Education whereby the petitioner was reinstated subject to the decision of the criminal court and his subsequent acquittal on 24.7.1987, by which he was entitle for reinstatement and the Committee of Management has rightly reinstated him. However, for the reasons best known to the then District Inspector of Schools this important fact was not brought on the record of this Court, and he also preferred not to file reply/show cause to the interim mandamus dated 16.1.1990 and preferred to comply interim mandamus by issuing an order for payment of salary of Kunwarpal Singh. The order of the District Inspector of Schools for payment of salary to Kunwarpal Singh is placed on record as Annexure-CA-7 to the counter affidavit filed on behalf of respondent no.1. After the dismissal of Writ Petition Kunwarpal Singh preferred Special Appeal before this Court and SLP before Supreme Court which came to dismissed on dates mentioned above.

The only question which falls for determination by this Court is as to whether the petitioner is entitle for the full salary and other benefits or not. Indisputably, the petitioner's termination order was set aside by the Deputy Director of Education in the appeal filed by the petitioner and a direction was issued that his suspension order shall be subject to the order of the criminal proceedings. In the criminal proceedings he was acquitted. After the acquittal of the petitioner the committee of management passed a resolution on 28.6.1988 that the petitioner may be reinstated as thee is no serious allegations against him and it was also resolved for payment of his salary. The said resolution was unanimously passed. A copy of the minutes of the said resolution has been placed as Annexure-4 to the writ petition. This fact establishes that against the petitioner there was no serious charge of any kind of mis-conduct as after his acquittal the committee of management did not take a decision to initiate any disciplinary proceedings against him on the same charge of misconduct.

The Principal of the College the respondent no.3 has filed a counter affidavit. The stand taken in the counter affidavit is that that the petitioner joined his services on 1.7.1988. The relevant part of the paragraph 8 of the counter affidavit is extracted as under :-

"the respondent no.1 has malafidely and arbitrarily rejected the representation of the petitioner without application of mind and evidence on record i.e. attendance register, service book etc. given by the deponent regarding the petitioner's regularly working as a Clerk in the College after his reinstatement since 1.7.1988. the deponent again wrote a letter to the respondent no.2 on 9.12.07 seeking the similar query as aforesaid."

From the aforesaid averments and some of the communication which has been attached with the counter affidavit filed by the respondent, it is evident that the petitioner was permitted to join the Institution in pursuance of the resolution passed by the committee of management on 1.7.1988.

In case interim order is vacated ,it is the duty of the Court to put the parties to the same term. The Supreme Court in the case of Kanodia Chemicals & Industries Ltd. and others v. U.P.Electricity Board and others reported 1997 (5) SCC 772 held that an order of stay granted pending disposal of a writ petition/suit or other proceedings, comes to an end with the dismissal of the substantive proceedings and it is the duty of the Court in such a case to put the parties in the same position they would have been but for the interim orders of the Court.

In the present case on account of connivance/negligence of the office of the District Inspector of Schools, Kunwarpal Singh continued to receive his salary in pursuance of an interim order from the year 1990 to 2003 when his writ petition, special appeal and SLP were dismissed. During this period from 1998 onwards the petitioner was permitted to join his duty and in his Writ Petition No. 23506 of 1991 interim mandamus was issued on 22.8.1991. Copy of which is placed on record as Annexure-CA-5 to the counter affidavit field by the District Inspector of Schools the respondent no.1 herein.

In case an employee is acquitted in a criminal case there are two options before the employer if the charges of the criminal case and the departmental proceedings are identical and same then in the case of acquittal from the criminal trial the departmental proceedings can be dropped and the employee can be reinstated . The second option before the employer is to continue the departmental proceedings as scope of the departmental proceedings and the criminal proceedings are different.

Reference may be made to the following judgment of the Supreme Court G.M.Tank v. State of Gujrat and others reported 2006 (5) SCC 446; Captain M.Pal Anthony v. Bharat Gold Mines Ltd. reported 1999 (3) SCC 679 ; Union of India v. Jai Pal Singh reported 2004(1) SCC 121; R.P.Kapoor v. Union of India reported AIR 1964 SC 787; Corpn. of the City of Nagpur v. Ram Chandra reported AIR (1984) 626.

In the case on hand the committee of management, the employer itself has found that charges against the petitioner were not serious enough and as such it did not take any decision to initiate domestic inquiry on those charges against the petitioner.

The only question remains to answer is whether the petitioner is entitle for the full salary ? In case where the order of dismissal or removal are set aside the reinstatement is automatic with full back wages is no more res integra . The earlier view of the Supreme Court was that if the dismissal/removal/termination order is set aside the reinstatement with the full back wages is a normal rule as held by the Supreme Court in the case of Hindustan Tin Works (P) Ltd. v, Employees reported 1979 (2) SCC 80. This view was followed in Surendra Kumar Verma v. Central Govt. Industrial Tribunal/Labour court reported 1980 (4) SCC 443 and Mohan Lal vs. Bharat Electronics Ltd. reported 1981 (3) SCC 225.

But the recent trend is not automatic reinstatement with full back wages. Reference may be made to some of the recent judgment of the Supreme Court where the reinstatement and full back wages has not been held to be automatic, as held in Allahabad Jal Sansthan v. Daya Shanker Rai reported 2005 (5) SCC 124, U.P.State Brassware Corporation Ltd. v. Udai Narain Pandey reported 2006 (1) SCC 479; Kendriya Vidyalaya Sangathan v. S.C.Sharma reported 2005 (2) SCC 363. However, the Supreme Court in the case of J.K.Synthetics Ltd. v. K.P.Agarwal and another reported 2007 (2) SCC 433 after noticing the recent trend that the reinstatement and full back wages is not automatic held that there are two exceptions. The Supreme Court while carving out the exceptions observed as under :-

"But there are two exceptions. The first is where the court sets aside the termination as a consequence of employee being exonerated or being found not guilty of the misconduct. Second is where the court reaches a conclusion that the inquiry was held in respect of a frivolous issue or petty misconduct, as a camouflage to get rid of the employee or victimise him, and the disproportionately excessive punishment is a result of such scheme or intention. In such cases, the principles relating to back wages, etc. will be the same as those applied in the cases of an illegal termination."

The aforesaid exceptions can be applied safely in the present case as the petitioner was acquitted in the criminal case and no disciplinary proceeding under the regulations of Intermediate Act was conducted by the appointing authority albeit it decided to reinstate the petitioner as it found that there was no serious charges against the petitioner. Therefore the law laid down by the Supreme Court in Hindustan Tin Works (P) Ltd. v, Employees reported 1979 (2) SCC 80 (supra) would be applicable in the present case and the principle of no work and no pay would not be applicable in the facts of this case.

This Court has also followed the same law in the case of Tasneem Fatma v. State of U.P. Thru Secy./Director Secondary Education and Ors. Reported 2009 (1) UPLBEC 321. The relevant part is extracted here under below:-

"64. In view of the discussion made herein above, I am of the view that the order impugned in this writ petition is not sustainable. The petitioner is entitled for reinstatement with all consequential benefits for the reason that she has been made to suffer on account of wholly illegal act of the respondents. Here is not a case where the petitioner should be denied benefit of back wages. The circumstances which would justify denial of back wages and where the employee must be allowed full back wages or partly, are discussed in detail by this court in Brijendra Prakash Kulshrestha vs. Director of Education, U.P. and others 2007 (3) ADJ 1, where it was held that in the kind of a case as in hand, where the termination of the employee was wholly attributable to the arbitrary and illegal case of the employer, the employee cannot be made to suffer. If the petitioner here is not allowed arrears of salary, it would cause prejudice to her without any fault on her part."

After bearing in the mind the principles culled out from the aforementioned judgments of the Supreme Court as well as of this Court in facts of the present case a direction may be issued upon the District Inspector of Schools, Bulandshahr to make the payment of the petitioner from the date of his reinstatement i.e. 26.8.1988 and not from the date of acquittal. Petitioner is entitled for the salary from his joining upto 2003. As regards payment made to Kunwarpal Singh it was a sheer negligence/connivance of the office of the District Inspector of Schools. Therefore the State Government is at liberty to fix the responsibility for the illegal payment made to Kunwarpal Singh and recover the said amount from the Officer who is found to guilty of negligence or connivance with the Kunwarpal Singh.

For the aforestated reasons the impugned order dated 5.12.2007 passed by the District Inspector of Schools, the respondent no.1 is liable to be quashed. Accordingly, it is quashed.

The petitioner shall be paid his salary from the year 1998 to 2003 within three months from the date of communication of this order.

The writ petition is allowed.

No order as to cost.

Order Date :- 10.12.2012

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