Baban Shriram Wafare vs Zilla Parishad, Ahmednagar
2001 Latest Caselaw 774 Bom

JUDGMENT

B.H. Marlapalle, J.

1. The petitioner came to be appointed as primary teacher by order dated 1-7-1963 under a school run by the Zilia Parishad. He was posted at the primary school at Kerjule Harya, Taluka Parner, Dist. Ahmednagar and on 14-5-1982 while he was working at the said school a criminal complaint came to be lodged against him and other for an offence punishable under Section 302 of the Indian Penal Code with the Parner Police Station. Offence under Crime No. 1-57/1982 came to be registered against the petitioner and others and he was arrested on 25-5-1982 in connection with the said crime. After committing the case to the Sessions Court, it came to be registered as Sessions Case No. 23/1983 before the Sessions Court at Ahmednagar. The petitioner came to be convicted by order dated 20-6-1983 for offences punishable under Section 304, Part II and Section 323 of the Indian Penal Code and he was sentenced to suffer rigorous imprisonment for a period of 3 years and to pay a fine of Rs. 1,000/-, in default to suffer further Rule I. for 6 months. In addition to a fine of Rs. 200/-, in default to suffer Rule I for 15 days. While this Sessions case was pending against the petitioner, he was suspended by an order dated 6-8-1982 and the said order was effective retrospectively from 26-5-1982. This order of suspension was specifically based on the crime registered against the petitioner and he was informed that during the period of suspension, he would not be eligible to accept any assignment either in Government of private service.

2. The conviction and sentence order passed by the Sessions Court came to be challenged in Criminal Appeal No. 360/1983 and during the pendency of this appeal, the petitioner submitted a representation on 18-2-1986 praying for reinstatement in service by withdrawing the suspension order. However, by order dated 24-7-1986 he came to be dismissed from service under the provisions of Rule 9(i) of the Maharashtra Zilla Parishads District Services (Discipline and Appeal) Rules, 1964, Criminal Appeal No. 360/1983 came to be decided and allowed by this Court on 29-1-1987 and it appears that the petitioner had submitted a fresh representation for reinstatement in service based on this acquittal order on 9-3-1987. The petitioner alleges that he was not heard on that representation at any time and finally on 24-7-1987 he was issued a fresh order of appointment as Assistant Teacher in a primary school. This order of appointment was based on the outcome of Criminal Appeal No. 360/1983 and the petitioner reported for duty on 8-9-1987. On 1-2-1988 the petitioner submitted a representation stating that he was being paid salary on the basis that he was freshly appointed and he had lost his seniority as well. He represented that at the time he was suspended, his basic pay was Rs. 390/- and he was entitled for six annual increments on his appointment on 24-7-1987. The same request was followed by submitting representation on 21-4-1988 and finally on 22-8-1988 a show cause notice came to be issued to the petitioner. On 29-11-1988 the Chief Executive Officer, Zilla Parishad passed an order purportedly invoking the provisions of Rule 71(2) of the Maharashtra Civil Services (Joining Time Foreign Service and Payments during Suspension, Dismissal and Removal) Rules, 1981 and informed the petitioner that the period of suspension from 26-5-1982 to 23-7-1986 shall be treated as suspension and the period from 24-7-1986 to 6-9-1987 shall be treated as leave period. Both these orders i.e. order dated 24-7-1987 and 29-11-1988 have been assailed before us.

3. The Zilla Parishad has filed the return and opposed the petition. An additional affidavit has been presented today. It is contended by the Zilla Parishad that the acquittal order passed by this Court was taken note of and the petitioner was reappointed in service by the impugned order dated 24-7-1987 and by the subsequent order dated 29-11-1988 he has been granted the benefit of continuity in service and his pension has been fixed on the said basis. This affidavit is silent regarding the fixation of the petitioner's salary while issuing the appointment order dated 24-7-1987 as well as for his pensionary benefits. The question before us is whether the petitioner is entitled for the consequential benefits on his reappointment on account of acquittal and the learned counsel for the Zilla Parishad submits that such a course is not permissible and whatever was permissible under the Rules, has been granted to the petitioner and therefore, nothing further survives in the petition.

4. There is no doubt that the provisions of Rule 9(i) of the Appeal Rules are based on the provisions of Article 311(2) (second proviso) of the Constitution and Clause (a) of the said proviso reads as under:--

"Provided further that this clause shall not apply.

(a) where a person is dismissed or removed or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge;

or....."

In the Appeal Rules, there is no provision to deal with the exigency arising upon an order of acquittal by the Appellate Court and in support of the action taken by the Zilla Parishad, the learned counsel has relied upon the provisions of Rules 70 and 71 of the Maharashtra Civil Services (Joining Time Foreign Service and Payment during Suspension, Dismissal and Removal) Rules, 1981. Rule 70 deals with a situation where a Government servant who was dismissed, removed or compulsorily retired is reinstated, as a result of appeal or review. These are the proceedings contemplated under the appeal rules and before the appellate/review authority provided under the said rules, whereas Rule 71 deals with the situation where the order of dismissal, removal or compulsorily retirement of a Government servant is set aside by a Court of law and such a Government servant was reinstated without holding any further enquiry. Both these rules do not deal with the situation where the Government servant is required to be reinstated on account of his acquittal by the Appellate Court.

5. The provisions of Rule 19(a) of the Tamilnadu Civil Services (CCA) Rules came up for interpretation in the case of Deputy Director of Collegiate Education (Administration) Madras v. S. Nagoor Meera, and the Supreme Court, referring to the provisions of Clause (a) of the second proviso to Article 311(2) of the Constitution, held :

"..... 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. 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."

The Apex Court further held that pendency of an appeal against an order of conviction and sentence would not be a reason for the Government servant concerned to seek reinstatement in service and such a relief cannot be sought for unless the appeal resulted in acquittal and on his success in the appeal, the issue can also be reviewed in such a manner that he suffers no prejudice.

We have not been shown any other rule in the Appeal Rules as applicable to the petitioner which empowers the Zilla Parishad to deny him the benefit of

continuity in service with consequential benefits including pay and its fixation, on acquittal in appeal, by this Court. The law laid down by the Apex Court in the case of Deputy Director of Collegiate Education (Administration), Madras (supra) obviously supports the contentions of the petitioner and therefore, the orders impugned cannot be sustained.

6. In the result, we allow the petition and quash and set aside the order dated 24-7-1986 and 29-11-1988 as well as the order dated 30-4-1989. We hold that the petitioner, on his acquittal by this Court, was entitled for reinstatement in service with continuity and other consequential benefits including pay and its fixation as if he continued in service in the absence of the criminal case registered and decided against him. The respondent Zilla Parishad is therefore, directed to take appropriate steps for revision of the petitioner's pensionary benefits and also payment of arrears if any. This shall be done within a period of two months from today.