Naresh Kumar Ahlawat vs Mahanagar Telephone Nigam Ltd.
2006 Latest Caselaw 301 Del

JUDGMENT

S. Ravindra Bhat, J.

1. Issue Rule. Mr. Rao waives notice of Rule.

2. With consent of counsel for the parties the matter is taken up for final disposal.

3. The controversy in this petition is as to the correct entitlement of the Writ Petitioner for salary and allowances for the period he was kept under suspension.

4. The Petitioner an employee of the Respondent MTNL, was placed under suspension on 23.9.1985 on the ground that criminal proceedings had been initiated against him. It was alleged that the Petitioner was guilty of offences under Sections 376 and 302 of the Indian Penal Code. The Petitioner was convicted by a judgment and order dated 7.9.1992; he appealed to the Punjab and Haryana High Court. The appeal was allowed and the conviction as well as sentence were set aside by judgment dated 4.10.1993.

5. The MTNL however did not accede to the Petitioner's request to reinstate him into its services. Apparently it was of the opinion that since the State had appealed to the Supreme Court, against acquittal, it would be prudent to await the final outcome of the proceedings. On 4.2.2003 the Supreme Court dismissed the criminal appeal filed in the matter. The order indicates that the Court affirmed the High Court's view that reliance could not be placed upon an extra judicial confession, which apparently was one of the principal reasons of the Petitioner's initial stage conviction.

6. After the final order of the Supreme Court the Petitioner represented the MTNL which passed an order dated 19.11.2004 reinstating him into its services. The MTNL issued a separate order indicating the manner of treatment of the period of suspension between 12.9.1985 and 31.8.1992. It decided that the subsistence allowances already been paid for the period between 12.9.1985 and 31.8.1992 was to be treated. For the subsequent period between 1.9.1982 and 19.11.2004 the MTNL indicated that the Petitioner would be entitled to a proportionate amount equal to 50% of the basic pay along with other allowances as admissible.

7. Mr. Harpreet Singh, learned counsel appearing for the Petitioner, who ably argued the case, urged that the impugned order dated 1.3.2005 is arbitrary. He submitted that the MTNL has placed reliance upon FR-54B (5). According to counsel the concerned Rule ought to have been FR-54B(3) which entitled the authorities to treat the period of suspension as unjustified and therefore entitled the Petitioner for full salary and other allowances for the entire period.

8. Counsel urged that the Petitioner had been admittedly acquitted on 4.10.1993. With effect from that date there was no hindrance/impediment upon the reinstatement or back into service. Yet the employer chose to keep the Petitioner away from its services in an unreasonable manner and continued with the suspension order. The fact that the Petitioner was taken back into employment shows that there was no blemish attached to him and the order of the High Court was legally correct.

9. Learned counsel has placed reliance on judgments of this Court as well as other High Courts and the Supreme Court, including Brahma Chandra Gupta v. Union of India , Sulekh Chand and Salek Chand v. Commissioner of Police and Ors. 1994 Supp (3) SCC 674, Hira Lal, Petitioner and Ors. v. D.D.A., 1995 Lab. I.C. 2196 and Jagwant Singh v. The State of Punjab and Ors. 1996(1) SLR 450. According to counsel all these decisions support the proposition that upon the acquittal of an employee of criminal charges the employer is under an obligation to reinstate him forthwith and ensure full payment of arrear, salary and allowances.

10. Mr. V.K. Rao, appearing for the Respondent, submitted that the impugned order cannot be termed arbitrary. It was submitted that the impugned order discloses that the Petitioner himself was at fault. Therefore, the authority was of the opinion that the subsistence allowance already paid for the period was adequate and that for the further period proportionate amount equal to 50% of basic pay along with other allowances were admissible.

11. Counsel also relied upon FR-54-B(5) to say that the provision specifically deal with the fact situation applicable in the present case where the suspension stood revoked or cancelled and the employee had to be paid only a proportion of the salary. Therefore, there was no question of his being entitled to the entire amount of arrears of full salary. It was also submitted that the Respondents did not proceed with any departmental proceedings which they were entitled to. In such an eventuality the Petitioner might have possibly faced with a penalty of dismissal in which event even his right to claim reinstatement would have been foreclosed.

12. The relevant part of the impugned order reads as follows:

AND WHEREAS after considering his submission in this regard as also keeping in view the of case inter alia aspect of non-intimation of conviction of life imprisonment to the office and rules in this regard. It has been decided to treat the subsistence allowance already paid for the period from 12.9.1985 to 31.8.1992 as the final payment. Further for the period spent under suspension from 1.9.1992 to 19.11.2004 for which no subsistence allowance has been paid, a proportionate amount equal to 50% of the basic pay along with other allowance as admissible to be paid in accordance with rules FR-54-B(5) Subject to the adjustment of subsistence allowance already paid after observing and completion of due formalities.

The receipt of memorandum shall be actuated by Sh. Naresh Kumar Ahlawat, LDC (CL-03577).

13. As is evident the impugned order has referred expressly to FR-54-B(5). It would be relevant to reproduce FR-54-B (2) (3) and (5) which have been relied upon in these proceedings:

(2) Notwithstanding anything contained in Rule 53, where a Government servant under suspension dies before the disciplinary or the Court proceedings instituted against him are concluded, the period between the date of suspension and the date of death shall be treated as duty for all purposes and his family shall be paid the full pay and allowances for that period to which he would have been entitled had he not been suspended, subject to adjustment in respect of subsistence allowance already paid.

(5) In cases other than those falling under Sub-rules (2) and (3) the Government servant shall, subject to the provisions of Sub-rules (8) and (9) be paid such amount (not being the whole) of the pay and allowances to which he would have been entitled had he not been suspended, as the competent authority may determine, after giving notice to the government servant of the quantum proposed and after considering the representation, if any, submitted by him in that connection within such period (which in no case shall exceed sixty days from the date on which the notice has been served) as may be specified in the notice.?

14. The above provisions indicate that if the authority competent to order reinstatement is of the view that the suspension of the employee was unjustified, he would be entitled to full salary and allowances. This is as per FR-54-B(3). Sub-Rule (5) which occurs thereafter; entitles payment of a proportion (not being the whole of the pay and allowances) which the public servant would have been entitled had he not been suspended. The concerned proportion of the salary and allowances would have to be determined specifically by the competent authority after issuing notice.

15. The facts of this case show that the Petitioner was initially convicted in the year 1992. At that time he had undergone a suspension order of 7 years. He was acquitted in October, 1993. The employer namely the MTNL was of the opinion that the State's appeal had been filed and that it would be appropriate to await its outcome. Eventually the Supreme Court affirmed the view of the High Court in the criminal appeal. The question is therefore whether the denial of full salary and allowances for the period between 1.9.1992 and 19.11.2004 can be characterised as arbitrary. During the course of hearing counsel for the Petitioner fairly stated that the the Petitioner would not be claiming full salary between 1.9.1992 and 4.10.1993 since the conviction had stood against the Petitioner.

16. It would be necessary to discuss briefly the case law relied upon on behalf of the Petitioner. In Brahma Chandra Gupta's case (supra), the narration of facts shows that the authority had during the currency of the suspension, itself decided that the employee would be entitled to 75% of the salary and allowances as subsistence allowance. The Court was of the opinion that the authority has not held that the suspension was wholly justified because the three fourths of the salary had been paid. On this premise the Court concluded that the employee was entitled to full salary and allowances. It would be apparent that the Court was not dealing with FR-54-B (3) or (5). It was proceeding on the facts of the case and concerned with the general understanding of what the rights of the parties were in the peculiar set of circumstances. In Sulekh Chand and Salek Chand's case (supra) the judgment was based on a different set of circumstances. The concerned employee had claimed a right to be considered for promotion. His name has not been considered because criminal proceedings were pending. The Court directed that when the criminal proceedings culminated and departmental enquiry was dropped, the foundation of the view of the DPC not to consider his case no longer existed. I am of the view that the facts of that case in no way are similar to the facts at hand.

17. In the decision of this Court in Hira Lal's case (supra) the Court undoubtedly was concerned with an interpretation of FR-54-B. A reading of para 5 of the decision indicates that this Court also took the view that the competent authority has to conclude that the suspension was legally unjustified while directing full back wages. The narration of facts would disclose that the employee there had not faced criminal proceedings; he had faced prolonged suspension.

18. The last case relied upon namely Jagwant Singh's case (supra) to an extent does support the Petitioner's case. It deals with a situation where the employee had been acquitted and the Court directed that the period between acquittal and reinstatement and subsequently till the period of his retirement ought to have been treated as having spent on duty.

19. The issue as to what should be the correct approach in such circumstances is no longer res integra. The Supreme Court has dealt with this aspect in at least 4 judgments. In Krishnakant Raghunath Bibhavnekar Vs. State of Maharashtra (1997) 3 SCC 636, the Court explained the right of an employee to claim backwages, after reinstatement, upon being acquitted, in the following manner:

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.? The latter decisions in Hukmi Chand v. Jhabua Coop. Central Bank Ltd., . Ranchodji Chaturji Thakore v. Superintendent Engineer, Gujarat Electricity Board, , Union of India v. Jaipal Singh reiterated this view, in respect of other offences.

20. The grant of back wages or full salary would depend upon the circumstances of each case. The exercise of discretion by the employer, in issuing the order or granting a part thereof would have to be seen in the overall conspectus of facts as presented before the Court. In cases where the employee is suspended or even dismissed, as per rules, on account of being arrested or having been convicted, the right to claim reinstatement arises only after the superior or the appellate court acquits the employee. In this case undoubtedly the Petitioner was acquitted in the year 1993. But the State admittedly carried the matter in appeal to the Supreme Court. As per provisions of law such an appeal is as a matter of right since the Trial Court had convicted the Petitioner and the Appellate Court namely the High court had acquitted him. In view of these circumstances, the employer namely the MTNL took the view that it would be prudent to await the decision of the Supreme Court. The Supreme Court affirmed the decision of the High court. After considering all these circumstances the MTNL issued the order on 1.3.2005 deciding that the period between 1.9.1992 to 19.11.2004 which is more than 12 years, the Petitioner would be entitled to proportionate amount equal to 50% of the basic pay along with allowances as admissible.

21. I am of the opinion that having regard to the facts of this case the view or opinion of the MTNL not to pay full back wages cannot be termed as arbitrary. Concededly the order might seem harsh. However, it is equally true that the Court sitting under Article 226 cannot view that administrative decision as an Appellate Court and on a subjective analysis of the circumstances hold that such an opinion is arbitrary. Thought the Petitioner was reinstated he also did not work for the period of about 12-13 years. In normal situations an employee dismissed for having been convicted, issued with an order of reinstatement would not have been entitled automatically to full back wages. The Court is even in such cases under duty to weigh, or balance the equities and pass an appropriate order.

22. It was submitted that the impugned order has the effect of treating the Petitioner on duty for all periods but that full salary and allowances would not be paid the Petitioner would be entitled to proportionate amounts equal to 50% of the basic pay. The impugned order is not restrictive; it entitles the Petitioner to 50% of basic pay and allowances along with all other entitlements flowing there from, proportionately, for the relevant period. In view of the above findings, I am of the view that the opinion of the MTNL in the impugned order is not arbitrary or illegal in any manner. The petition is accordingly dismissed. No costs.