Vinod Kumar Malik vs State Bank Of India And Ors.
2005 Latest Caselaw 339 Del

JUDGMENT

Vikramajit Sen, J.

1. The question that arises in this Petition is whether the Petitioner is entitled to payment of wages/salary for the period commencing on 07.07.1999 which is the date of the termination of his services predicated of his conviction under Section 148-A, IPC and ending on 3.10.2001 when Petitioner joined duties. On 28.7.2001 he had been acquitted by the learned Sessions Judge.

2. Learned counsel for the Respondent Bank states that the Bank is statutorily bound to terminate the services of any of its employees who has been convicted of any offence involving moral turpitude, as per Section 10(1)(b)(i) of the Banking Regulations Act, 1949. Reliance has been placed on the decision of the Hon'ble Supreme Court in Ranchhodji Chaturji Thakore vs. Superintendent Engineer, Gujarat Electricity Board, Himmatnagar (Gujarat) and Anr., where the Court observed as follows:

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.

3. In Union of India and Ors. vs. Jaipal Singh, , the Apex Court took note of the observations in Ranchhodji's case (supra) and opined as follows:

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 accepted that an order rejecting a special leave petition at the threshold without detail d reasons therefore 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 therefore 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 no 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.

4. Apart from these two cases, the following paragraph from Krishnakant Raghunath Bibhavenekar v. State of Maharashtra and Ors., is relevant:

It is true that when a government servant is acquitted of offences, he would be entitled to reinstatement. But the question is whether he would be entitled to all consequential benefits including the pensionary benefits treating the suspension period as duty period, as contended by Shri Ranjit Kumar? The object of sanction of law behind prosecution is to put an end to crime against the society and laws thereby intends to restore social order and stability. The purpose of the prosecution of a public servant is to maintain discipline in service, integrity, honesty and truthful conduct in performance of public duty or for modulation of his conduct to further the efficiency in public service. The Constitution has given full faith and credit to public acts.

Conduct of a public servant has to be an open book; corrupt would be known to everyone. The reputation would gain notoriety. Though legal evidence may be insufficient to bring home the guilt beyond doubt or foolproof. The act of reinstatement sends ripples among the people in the office/locality and shows wrong signals for degeneration of morality, integrity and rightful conduct and efficient performance of public duty. The constitutional animation of public faith and credit given to public acts would b undermined. Every act or the conduct of a public servant should be to effectuate the public purpose and constitutional objective. Public servant renders himself accountable to the public. The very cause for suspension of the petitioner and taking punitive action against him was his conduct that led to his prosecution for the offences under the Indian Penal Code. If the conduct alleged is the foundation for prosecution, though it may end in acquittal on appreciation or lack of sufficient evidence, the question emerges whether the government servant prosecuted for commission of defalcation of public funds and fabrication of the records, though culminated into acquittal, is entitled to be reinstated with consequential benefits. In our considered view this grant of consequential benefits with all back wages etc. cannot be as a matter of course. We think that it would be deleterious to the maintenance of the discipline if a person suspended on valid considerations is given full back wages as a matter of course on his acquittal. Two courses are open to the disciplinary authority, viz., it may enquire into the misconduct unless, the selfsame conduct was subject of charge and on trial the acquittal was recorded on a positive finding that the accused did not commit the offence at all; but acquittal is not on benefit of doubt given. Appropriate action may be taken thereon. Even otherwise, the authority may, on reinstatement after following the principle of natural justice, pass appropriate order including treat in suspension period as period of not on duty (and on payment of subsistence allowance etc.)

(underlining added for emphasis)

5. In all these cases the employer cannot be faulted for terminating the services of its employee who has been convicted by a Criminal Court. On coming to learn of registration of an FIR against the employee the employer must consider whether or not to suspend him from service. That will bring into focus the question of whether Suspension Allowance is to be paid, and if so, at what rate. There may be instances where the prosecution has been instigated or initiated by the employer. If there is an in arceration as a consequence thereof, or a conviction which is ultimately found to be unsustainable, the employer has, in almost a direct manner, caused the disruption of the employees services. This would also apply to cases where a Departmental Inquiry is initiated as a consequence of which the employee is suspended, and thus the abstention of work is attributable to the employer. On an analysis of the above Judgments it appears to me that these considerations have been kept in mind by the Hon'ble Supreme Court in coming to the conclusion that even in cases where there is an acquittal, while reinstatement may be in order, it is not automatic that all consequential benefits would follow.

6.Learned counsel for the Petitioner draws attention to the decision of a Three Judge Bench in Brahma Chandra Gupta vs. Union of India, which had not been cited in any of the three cases mentioned above. It is contended by learned counsel for the Petitioner that this decision must be followed in preference to the other three. This may be the only course open to the Court if their ratio decided are irreconcilable. Reliance has been placed on the last paragraph of the Judgment in Braha's case (supra) which is reproduced for facility of reference:

6. Mr. R.K. Garg, learned counsel for the appellant wanted us to examine the scope and ambit of Article 193 and Mr. Gujaral learned counsel for the Union of India was equally keen on the other side to do the same thing. We steer clear of both. The appellant was a permanent UDC who has already retired on superannuation and must receive a measure of socio-economic justice. Keeping in view the facts of the case that the appellant was never hauled up for departmental enquiry, that he was prosecuted and has been ultimately acquitted, and on being acquitted he was reinstated and was paid full salary for the period commencing from his acquittal, and further that even for the period in question the concerned authority has not held that the suspension was wholly justified because three-fourth of the salary is ordered to be paid, we are of the opinion that the approach of the trial court was correct and unassailable. The learned trial Judge on appreciation of facts found that this is a case in which full amount of salary should have been paid to the appellant on his reinstatement for the entire period. We accept that as the correct approach. We according allow this appeal, set aside the judgment of first appellate court as well of the High Court and restore the on of trial court with this modification that the amount decreed shall be paid with 9 per cent interest p.a. from the date of suit till realisation with costs throughout.

7. On a careful reading of the Brahma Judgment it will be evident that it did not concern the payment of wages/salary for the period between the termination of the services of an employee on the grounds of his conviction, and his reinstatement consequent upon his acquittal. In the present case the Petitioner was incarcerated under Section 498-A of the IPC and it can be nobody's case that the Bank had instigated this prosecution. In terminating the services of the Petitioner the Bank was only complying with the statutory provisions which mandated the termination of the Petitioner's services. On hearing of the Petitioner's acquittal, the Respondent Bank has been quick to reinstate the Petitioner. It has, therefore, not played any role in the Petitioner's abstention from work or cessation from duty. Why then should the Bank be fastened with the liability to pay salary to the Petitioner. Should the Employer also be burdened with payment of compensation of the wife's malicious prosecution? The answer can only be emphatically in the negative. In Brahma's case (supra) the Hon'ble Supreme Court merely clarified that full wages should be paid even in respect of the period in which the Petitioner remained on suspension. The Court was neither called upon nor entered to go any further. Let us assume that the Bank had decided to suspend the Petitioner on learning of the lodging of the FIR against him. The opinion in Brahma's case would then come into operation and it would be soundly arguable that if the Bank was not bound to suspend the Petitioner and yet it did so, it should pay his wages for the period of suspension. Viewed in this manner all the Judgments of the Hon'ble Supreme Court can be reconciled.

8. The Petitioner's claim for payment of wages for the period commencing with the termination of his services consequent upon his conviction, and his reinstatement pursuant to his acquittal, cannot be sustained in law.

9. The Petition is without merit and is dismissed.