Bombay High Court
Mohan Moreshwar Agashe vs The Managing Director ... on 3 March, 2017
Bench: S.C. Dharmadhikari
wp.7763.2013 (Colabawalla)(23.2.2017).doc
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 7763 OF 2013
Mohan Moreshwar Agashe, :
Age years, Occupation:- Junior :
Engineer, M.S.E.D.C.L. Dapoli :
Taluka:- Dapoli, Dist. Ratnagiri : ...Petitioner
VERSUS
1 The Managing Director, :
Maharashtra State Electricity :
Distribution Company Ltd., :
(Distribution Commercial & Co. :
Coordinating - 1 & Competent :
authority Prakashgad Imarat, :
4th Floor, Plot No.G9, Station :
Road, Bandra, East Mumbai :
2 The Superintending Engineer :
(RC) Maharashtra State :
Electricity Distribution Company :
Ltd. Ratnagiri, Nachane Road, :
Ratnagiri. : ...Respondents
.....
Smt. Seema Sarnaik, for the Petitioner.
Ms A.R.S. Baxi for the Respondents.
CORAM : S. C. DHARMADHIKARI &
B.P.COLABAWALLA, JJ.
Reserved on : 23rd February, 2017
Pronounced on : 3rd March, 2017
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JUDGMENT [ PER B. P. COLABAWALLA J ]:
1. By this Writ Petition, under Article 226 of the
Constitution of India the Petitioner inter alia prays for issuance of a
Writ of Mandamus calling for the record and files in respect of the
service of the Petitioner from the office of the Respondents and after
perusal of the same to declare the letters dated 30th October, 2012 (
Exh "J") and 26th March, 2013 (Exh "N") as bad-in-law, illegal and
liable to be quashed and set aside. A further relief that is sought, is to
direct the Respondents to pay to the Petitioner a sum of
Rs.20,02,178/- or such further amounts towards the salary and other
allowances for the period 4th December, 2008 to 28th February, 2012.
The main and the only contention raised before us is that the
Petitioner has been acquitted in a Criminal Case and thereafter
reinstated in the service of the Respondents, and hence should be
paid back wages and other benefits for the period from 4th December,
2008 to 28th February, 2012.
2. The brief facts necessary for appreciating this contention
are as follows:-
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(a) The Petitioner was employed with the Respondents since
23rd May, 1980 and according to him, his service record
was unblemished and he also received various certificates
of good conduct. Whilst the Petitioner was on duty in the
capacity of Junior Engineer with the Respondents at
Dapoli, District :- Ratnagiri, he was issued a charge-sheet
on 29th September, 2007 for misconduct of accepting a
bribe of Rs.5,000/-. Pending the inquiry, the Petitioner
was suspended vide an order dated 20th September, 2007.
The allegation against the Petitioner was that he was
caught while accepting a bribe of Rs.5,000/- on 12th
September, 2007 from one Sunil Atmaram Bothare. The
Petitioner refuted these allegations by filing his reply.
(b) Be that as it may, the Petitioner was arrested on 12th
September, 2007 and was released next day on bail.
Thereafter, Respondent No.1 issued a show-cause-notice
dated 3rd January, 2008 as to why the services of the
Petitioner should not be dismissed without holding a
Domestic (Departmental) Enquiry. Being aggrieved by
the dismissal notice, the Petitioner filed a complaint
before the Labour Court, Ratnagiri and also applied for
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interim relief from taking any action on the said show-
cause-notice. When the Petitioner applied for interim
relief, the same was rejected by the Labour Court vide its
order dated 8th May, 2008. Being aggrieved thereby, the
Petitioner filed a Revision Application before the
Industrial Court, who by its order dated 15th July, 2008
allowed the Revision Application and set aside the order
passed by the Labour Court. The Industrial Court further
directed that the Petitioner be continued in service on his
original post and directed the Labour Court to expedite
the matter.
(c) Being aggrieved by the order passed in the Revision
Application, Respondent No.1 approached this Court by
filing Writ Petition No.6751 of 2008. This Court by its
order dated 17th November, 2008 set aside the order
passed by the Industrial Court in Revision and ordered
that the application for interim relief was to stand
dismissed. After this order, the Respondents terminated
services of the Petitioner by their order dated 4th
December, 2008. Being aggrieved by this termination,
the Petitioner preferred a First Appeal before the
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appropriate authority, which was also dismissed on 7th
December, 2009. Thereafter, the Petitioner preferred the
Second Appeal which was also dismissed on 9th October,
2010.
(d) Be that as it may, during the pendency of the disposal of
the complaint filed by the Petitioner before the Labour
Court, the criminal prosecution in respect of the incident
of corruption on 12th September, 2007 (bearing Special
Case No.06 of 2008) was disposed of by the learned
Special Court, Khed, by its Judgment and Order dater 3rd
May, 2011. The Petitioner was acquitted as the
prosecution had failed to prove the commission of the
alleged offences beyond a reasonable doubt. A copy of
this Judgment can be found at Exh "E" to the Petition.
(e) In view of the fact that the Petitioner had been acquitted
from the Criminal Case, by his representations dated 3rd
August, 2011 and 8th August, 2011, the Petitioner
requested the Respondents for reconsidering his
termination dated 4th December, 2008. Considering the
representations made by the Petitioner as well as the fact
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that the Anti Corruption Bureau, Ratnagiri had decided
not to challenge the Judgment and Order dated 3rd May,
2011 (acquitting the Petitioner), the Respondents by
their letter dated 21st February, 2012 revoked the order
of termination and permitted the Petitioner to resume his
duties again as a Junior Engineer. However, the period
from 4th December, 2008 to 28th February, 2012 was
treated by the Respondents as a period "without pay"
and which was communicated to the Petitioner by their
letter dated 30th October, 2012. The Petitioner was
informed that the period from 4th December, 2008 to 28th
February, 2012, was treated as "leave without pay" on
the principle of "NO WORK NO PAY". The same was
again informed to the Petitioner by the Respondents vide
their letter dated 26th March, 2013. It is, in these
circumstances, that the Petitioner is before us
challenging the letters dated 30th October, 2012 (Exh "J"
to the Petition) and 26th March, 2013 (Exh "N" to the
Petition).
3. In this factual backdrop Ms Sarnaik, the learned advocate
appearing for the Petitioner contended that the Petitioner was
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always ready and willing to work with the Respondents. The
Petitioner being acquitted honourably in Special Criminal Case No. 6
of 2008, and having been terminated in a summary manner without
holding any inquiry on the ground that the Petitioner was involved in
a case of corruption, the Petitioner would be entitled for
reinstatement with continuity in service with all consequential
benefits. She submitted that the Petitioner has been wrongly
deprived of the wages and other benefits from the date of termination
till he resumed his duties on 28th February, 2012.
4. To be fair to Ms Sarnaik, she brought to our attention a
recent decision delivered by us in the case of Ramchandra
Bapusaheb Desai Vs Maharashtra State Electricity Distribution
Company Limited,1 where we have considered the exact same
arguments. She sought to distinguish this decision basically on two
grounds:-
(i) She submitted that the reliance placed by us on the
Service Regulation 10-A to dismiss the said Writ
Petition, was inapplicable in the facts of the present
case, because the said Regulation applied only to
cases where an employee was first convicted by the
trial court and thereafter got acquitted in appeal. It
1 Writ Petition No.2301 of 2013, decided on 9th January, 2017
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is only, in such circumstances, that the said Service
Regulation stipulates that even though an employee
can be reinstated in service, he would not be eligible
for any payment from the date of termination of his
service to the date of his reinstatement, on the
principle of "NO WORK NO PAY". According to Ms
Sarnaik, the facts of the present case would clearly
show that the Petitioner before us was not one that
was originally convicted and thereafter acquitted in
appeal. He was acquitted by the trial court itself
and in fact the order of acquittal was not even
challenged by the Anti Corruption Bureau,
Ratnagiri and had attained finality. She, therefore,
submitted that this Judgment would have no
application to the facts of the present case;
(ii) in the facts before us in Writ Petition No.2301 of
2013, the same was not a case of a clean acquittal
but the acquittal was on the basis of a reasonable
doubt. According to Ms Sarnaik, this was an
another fact which was to be taken into
consideration by us to grant relief to the Petitioner.
5. For all the aforesaid reasons, she was at pains to
persuade us that the facts of the present case were materially
different from the ones that were before this Court in Writ Petition
No.2301 of 2013 and hence we ought to take a different view. For all
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the aforesaid reasons, she submitted that the Writ Petition be allowed
in terms of prayer clauses (b) to (e) respectively.
6. On the other hand, Ms Baxi, learned counsel appearing on
behalf of the Respondents brought to our attention the MSEDCL
Employees' Service Regulations, 2005 as well as the Circular dated
24th November, 1992 and submitted that there is no bar to hold and
continue a Departmental Enquiry, simultaneously, pending the
outcome of the criminal case. If this be the case, then all the more
such requests as are emanating from the Petition cannot and ought
not to be granted. According to her, Service Regulation 10-A was
clear and unambiguous and granting any relief to the Petitioner
would be contrary to that very Regulation. Ms Baxi submitted that
identical arguments were considered by this Court in Writ Petition
2301 of 2013 and were rejected and the grounds on which the said
decision is sought to be distinguished are totally frivolous and
baseless. For all the aforesaid reasons, Ms Baxi submitted that there
was no merit in this Writ Petition and the same ought to be dismissed
with costs.
7. We have heard the learned counsel for parties at length
and perused the papers and proceedings in the Writ Petition. We find
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considerable force in the argument of Ms Baxi. It is now well settled
that the charge of bribery and corruption though punishable as a
criminal offence (and which was the subject matter of a criminal case
in the present matter), does not mean that it is not a misconduct
under the Service Regulations. It is equally a misconduct inasmuch
as a public servant is expected to work honestly and diligently. Any
conduct which is unbecoming of a public servant and brings his image
and reputation, together with that of the organization in disrepute, if
committed, then, all the more, the avenue of disciplinary
proceedings/ Departmental Enquiry is open, irrespective of the
outcome of the criminal proceedings. In fact, such proceedings can
also be initiated during the pendency of the criminal case. Therefore,
on conclusion of the criminal case and the same resulting in the
employee's acquittal, he may be reinstated in service, but that does
not mean that he would be entitled to payment of wages and salary
for the time he did not work. A public servant cannot as of right,
therefore, demand these dues as he has rendered no service nor has
he performed any work. Even otherwise, back wages do not follow
reinstatement and as a matter of course. Everything depends on
facts and circumstances of each case.
8. Having said this, we find that Service Regulation 10-A
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completely supports the case put forth by Ms. Baxi. Service
Regulation 10-A reads thus:-
"SR 10-A Cir. No. GAD/V/A/DAC/6573 dt. 24-11-1992.
Admission of an appeal does not stay the order of the trial Court.
The Central Administrative Tribunal has concluded that release on
bail is not the same as suspending conviction and that the
Department may impose penalty when one has been convicted by
lower court, even if he has filed an appeal.
In view of the above position following instructions are issued;
(i) On conviction of an employee by a trial court the provisions under
Service Regulation No. 10-A are to be invoked and action to
terminate the services of such convicted employee should be taken
by the Competent Authority, forthwith.
(ii) In case such employee gets acquitted in Appeal in the Appellate
Court, he should be reinstated in service. But he shall not be eligible
for any payment from the date of termination of his service to the
date of his reinstatement in the services, on the principle of "NO
W O RK N O PAY". He will, however, be eligible for restoration of
his seniority and other terminal-benefits.
Further, there is no bar to hold and continue a Departmental
Enquiry, simultaneously, pending outcome of the criminal case
provided the charges in Departmental Enquiry are other than the
charges under the consideration in criminal case against such
employee. In fact, it is advisable to start a separate Departmental
Enquiry in all such cases of criminal offence and take independent
action without awaiting the outcome of criminal case."
9. As can be seen from said Regulation, an employee who is
acquitted should be reinstated in service, but would not be eligible for
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any payment from the date of termination of his service to the date of
his reinstatement, on the principle of "NO WORK NO PAY". He
would, however, be eligible for restoration of his seniority and other
terminal benefits.
10. In view of this clear Regulation, and the validity of which
has not been challenged in these proceedings, we are unable to agree
with Ms Sarnaik's submission that it would be inapplicable to the
Petitioner, because his was a case where he was acquitted by the trial
court and was not acquitted in appeal. This Court in the case of
Ramchandra Bapusaheb Desai Vs Maharashtra State Electricity
Distribution Company Limited,1 (in paragraph 10 of its decision)
has categorically held that a perusal of this Regulation (Regulation
10-A) would indicate as to how in case an employee gets acquitted in
appeal or is acquitted otherwise by the trial court itself, he shall be
reinstated in service. He would however not be eligible for any
payment from the date of termination of his service to the date of his
reinstatement on the principle of 'No work no pay'. We, therefore,
find no substance in the argument of Ms Sarnaik that this Regulation
would apply only in a case where an employee is first convicted by
the trial court, and thereafter, acquitted in appeal. The principle of
1 Writ Petition No.2301 of 2013, decided on 9th January, 2017
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"NO WORK NO PAY", would apply not only in cases where an
employee is first convicted and thereafter acquitted in appeal, but
would also apply in a case of an employee who is acquitted by the trial
court itself. We must mention here that even in the case of
Ramchandra Bapusaheb Desai Vs Maharashtra State Electricity
Distribution Company Limited1 the Petitioner was acquitted by the
trial court itself. Despite this, placing reliance on Regulation 10-A,
this Court took the view that the Petitioner therein was not entitled
to any payment from the date of termination of his service to the date
of his reinstatement. Not only is the said decision binding on us but
we are in full agreement with the same.
11. We also do not find any merit in the argument of Ms
Sarnaik that we ought to take a different view because in the facts of
the present case, it was a case of a 'clean acquittal' or a 'honourable
acquittal' rather than one that was on 'reasonable doubt'. Firstly, we
do not find any such differentiation in Regulation 10-A. Regulation
10-A clearly stipulates that where an employee is acquitted he should
be reinstated in service, but would not be eligible for any payment
from the date of termination of his service to the date of his
reinstatement. The Regulation makes no differentiation between an
acquittal by virtue of reasonable doubt or what Ms Sarnaik would
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term as an "honourable acquittal" or a "clean acquittal". In view of
the clear and unambigious language of Regulation 10-A staring the
Petitioner in face, and which Regulation has not been challenged
before us, then all the more we are unable to to agree with Ms.
Sarnaik on this point.
12. This apart, even otherwise in the facts of the present
case, we find that this submission is factually incorrect. It is the case
of the Petitioner itself (in paragraph 17 of the Petition) that he would
be entitled to reinstatement with all the benefits as the prosecution
had failed to prove the case "beyond reasonable doubt". Even on
perusal of the decision of trial court in Special Case No. 6 of 2008
acquitting the Petitioner, we do not find that the same is what Ms
Sarnaik would term as a "clean acquittal". From perusal of the said
decision, we find that the complainant in fact had turned hostile and
did not support the case of the prosecution even though PW 2
supported the case of the prosecution. It is in these circumstances
that the trial court held that the evidence of the complainant and PW
2 would not be sufficient to establish the bribery charges. Therefore,
the trial court at paragraph 22 held that the prosecution had failed to
prove the commission of the alleged offences by the accused beyond
reasonable doubt. In these circumstances, we are, therefore, unable
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to agree with Ms Sarnaik that this was a case of a "clean acquittal",
and therefore Regulation 10-A would not be applicable.
13. With regard to what is a "clean acquittal" it would be
apposite to refer to a decision of the Supreme Court in the case of
Commissioner of Police, New Delhi and another Vs. Mehar Singh.2
This decision restates those principles by which the Courts have to be
guided. For an acquittal to be termed as "clean and honourable", the
Supreme Court has set down certain principles and for the first time,
how the said expression was considered and its application
thereafter, is traced in this decision. Paragraphs 24, 25 & 26 are
very instructive in this regard and read thus:-
"24. We find no substance in the contention that by
cancelling the respondents' candidature, the Screening
Committee has overreached the judgments of the
criminal court. We are aware that the question of co-
relation between a criminal case and a departmental
enquiry does not directly arise here, but, support can be
drawn from the principles laid down by this Court in
connection with it because the issue involved is
somewhat identical, namely, whether to allow a person
with doubtful integrity to work in the department. While
the standard of proof in a criminal case is the proof
beyond all reasonable doubt, the proof in a
departmental proceeding is preponderance of
probabilities. Quite often criminal cases end in acquittal
because witnesses turn hostile. Such acquittals are not
acquittals on merit. An acquittal based on benefit of
2 (2013) 7 SCC 685
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doubt would not stand on a par with a clean acquittal on
merit after a full-fledged trial, where there is no
indication of the witnesses being won over. In R.P.
Kapur v. Union of India [AIR 1964 SC 787] this Court has
taken a view that departmental proceedings can proceed
even though a person is acquitted when the acquittal is
other than honourable.
25. The expression "honourable acquittal" was
considered by this Court in S. Samuthiram [Inspector
General of Police v. S. Samuthiram, (2013) 1 SCC 598 :
(2013) 1 SCC (Cri) 566 : (2013) 1 SCC (L&S) 229] . In that
case this Court was concerned with a situation where
disciplinary proceedings were initiated against a police
officer. Criminal case was pending against him under
Section 509 IPC and under Section 4 of the Eve-Teasing
Act. He was acquitted in that case because of the non-
examination of key witnesses. There was a serious flaw in
the conduct of the criminal case. Two material witnesses
turned hostile. Referring to the judgment of this Court
in RBI v. Bhopal Singh Panchal [(1994) 1 SCC 541 : 1994
SCC (L&S) 594 : (1994) 26 ATC 619] , where in somewhat
similar fact situation, this Court upheld a bank's action of
refusing to reinstate an employee in service on the
ground that in the criminal case he was acquitted by
giving him benefit of doubt and, therefore, it was not an
honourable acquittal, this Court held that the High Court
was not justified in setting aside the punishment
imposed in the departmental proceedings. This Court
observed that the expressions "honourable acquittal",
"acquitted of blame" and "fully exonerated" are
unknown to the Criminal Procedure Code or the Penal
Code. They are coined by judicial pronouncements. It is
difficult to define what is meant by the expression
"honourably acquitted". This Court expressed that when
the accused is acquitted after full consideration of the
prosecution case and the prosecution miserably fails to
prove the charges levelled against the accused, it can
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possibly be said that the accused was honourably
acquitted.
26. In light of the above, we are of the opinion that since
the purpose of the departmental proceedings is to keep
persons, who are guilty of serious misconduct or
dereliction of duty or who are guilty of grave cases of
moral turpitude, out of the department, if found
necessary, because they pollute the department, surely
the above principles will apply with more vigour at the
point of entry of a person in the police department i.e. at
the time of recruitment. If it is found by the Screening
Committee that the person against whom a serious case
involving moral turpitude is registered is discharged on
technical grounds or is acquitted of the same charge but
the acquittal is not honourable, the Screening
Committee would be entitled to cancel his candidature.
Stricter norms need to be applied while appointing
persons in a disciplinary force because public interest is
involved in it."
14. As a result of the above discussion, we find no merit in
this Writ Petition and the same is accordingly dismissed. However, in
the facts and circumstances of the case, we leave the parties to bear
their own costs.
( B. P. COLABAWALLA J. ) ( S. C. DHARMADHIKARI J )
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