[Cites 12, Cited by 0]
Delhi High Court
Mithlesh Sharma vs Uoi & Ors on 13 March, 2026
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment reserved on: 16.02.2026
Judgment pronounced on: 13.03.2026
+ W.P.(C) 3231/2005
MITHLESH SHARMA .....Appellant
Through: Mr. R.K. Saini, Adv.
versus
UOI & ORS. .....Respondents
Through: Mr. Amit Tiwari, CGSC with
Ms. Ayushi Srivastava, Mr.
Ayush Tanwar, Mr. Arpan
Narwa and Mr. Kushagra Malik,
Advs. for R-1/UOI.
CORAM:
HON'BLE MR. JUSTICE ANIL KSHETARPAL
HON'BLE MR. JUSTICE AMIT MAHAJAN
JUDGMENT
AMIT MAHAJAN, J.
1. The present Writ Petition is filed assailing the order dated
19.09.2003 (hereinafter 'impugned order') passed by the learned
Central Administrative Tribunal, Principal Bench, New Delhi
(hereinafter 'Tribunal') in O.A. No. 937/2003.
2. Succinctly stated, the present petition is filed by the widow of
late Shri Tirath Prakash, who was employed as a clerk in the Foreign
Post Office, New Delhi. The husband of the Petitioner was placed under
suspension with effect from 26.07.1973, by Respondent No. 2, on
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account of a criminal investigation for corruption being initiated against
him by the Central Bureau of Investigation.
3. The learned Trial Court, vide order dated 23.05.1977, convicted
the husband of the Petitioner under Section 5(2) read with Section
5(1)(d) of the Prevention of Corruption Act, 1947 and Section 157 of
the Indian Penal Code, 1860. The learned Trial Court further sentenced
the husband of the Petitioner to undergo one-year rigorous
imprisonment and a fine of Rs. 2,000/-, for the offences punishable
under the Prevention of Corruption Act, 1947, and one-year rigorous
imprisonment and a fine of Rs.500/-, for the offences punishable under
the Indian Penal Code, 1806.
4. As a consequence of the aforesaid conviction, the Petitioner's
husband was dismissed from service by Respondent No. 2, vide order
dated 27.07.1977. The relevant extract is reproduced as follows:
"Whereas Shri Tirath Parkash, clerk Foreign Post, New Delhi has
been convicted on a Criminal Charge under Section 5(2) read with
section 5(l)(d) of the Prevention of Corruption Act, 1947 and under
section 161 I.P.C.
And, Whereas it is considered that the conduct of the said Sh. Tirath
Parkash, Clerk, Foreign Post, New Delhi, which has led to his
conviction is such as to render his further retention in the Public
Service undesirable.
Now, therefore, in exercise of the Powers conferred by rule 19(1) of
the C.C.S. ( C.C.&A ) Rules 1965, the undersigned hereby dismisses
the said Shri Tirath Parkash, Clerk, Foreign Post, New Delhi, from
service with effect from 27.7.1977."
5. Aggrieved by the decision of the learned Trial Court, the
Petitioner's husband preferred an appeal bearing Criminal Appeal No.
205 of 1977, against his conviction before this Court. During the
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pendency of the said appeal, the Petitioner's husband expired on
23.05.1993 and thereafter, the Petitioner was granted leave by this
Court to continue the Appeal. Vide judgment dated 10.07.2001, this
Court allowed the appeal filed by the Petitioner's husband with the
following observations: -
"22. For the foregoing reasons, 1 have no hesitation in holding that
the present prosecution was launched without a valid sanction
and, therefore, cognizance taken by the Special Judge was without
jurisdiction. Further, the trial was also vitiated on account of
defective recording of statement of the appellant under Section 313
of the Code and for the incorrect framing of charge. The appeal
accordingly allowed on the legal grounds, without going into the
merits of the allegations. The judgment of the learned Special Judge
is set aside and the conviction and sentence passed on the appellant
are quashed."
(Emphasis supplied)
6. Thereafter, the Petitioner made a representation to Respondent
No. 2, claiming that on account of the conviction of the Petitioner's
husband being set aside, he would have been entitled to be reinstated in
service with consequential benefits of arrears of salary and allowances.
The Petitioner claimed that since her husband had expired on
23.05.1993, during the pendency of the appeal, she was entitled to
receive all the benefits, which accrued to her husband as arrears of
salary, allowances, etc. till the date of his death and other benefits such
as gratuity, pension, which would have become payable after his death.
7. Upon receiving no reply to the aforesaid representation, the
Petitioner approached this Court by way of Writ Petition No.
7635/2001, however, the said petition was disposed of as withdrawn,
granting liberty to the Petitioner to approach the learned Tribunal.
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8. Thereafter, the Petitioner filed the present O.A. before the
learned Tribunal praying for the following reliefs:
"i) quash the illegal order dated 27.7.1977
ii) Direct the respondent to treat Late Shri Tirath Prakash having
continued in service after 27.7.1977.
iii) Direct the respondents to pay arrears of wages due to Late Shri
Tirath Prakash from 27.7.1977 onwards alongwith consequential
benefits of promotion to the higher posts from the date of promotion
of his juniors.
iv) Direct the respondents to pay retiral benefits settlement due of
Late Shri Tirath Prakash alongwith arrears.
v) Direct the respondent to grant family pension to the Applicant
alongwith arrears after the death of Late Shri Tirath Prakash on
23.5.1993.
vi) Direct the respondent to pay interest on these delayed payments
due upto the date of payment.
viii) Grant any other relief that this Hon'ble Tribunal may deem fit."
9. The learned Tribunal, taking note of the fact that the acquittal of
the Petitioner's husband was merely on technical grounds and that his
dismissal from service was based on the conviction in the criminal case
and not by way of disciplinary proceedings, held that the Petitioner was
not entitled to receive any back wages of her husband.
10. The learned Tribunal, however, held that in the facts and
circumstances of the present case, the Petitioner's husband shall be
deemed to have continued in service on notional basis from 27.07.1977
till the date of his superannuation on 31.01.1992. The learned Tribunal
further held that the intervening period from the date of dismissal of the
Petitioner's husband till the date of his retirement shall be taken into
account for the purpose of computation of retiral benefits due to the
Petitioner's husband and family pension, as due to the Petitioner, in
accordance with the CCS (Pension) Rules, 1972.
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11. The learned Tribunal further rejected the claim of the Petitioner
for payment of interest on the retiral benefits. The other reliefs prayed
for by the Petitioner were also rejected.
12. Aggrieved thereby, the Petitioner filed the present Writ Petition.
13. The Petitioner passed away during the pendency of the present
Writ Petition on 24.11.2009 and the Legal Representatives were
impleaded vide order dated 25.10.2010.
14. The learned counsel appearing on behalf of the Legal
Representatives of the Petitioner submitted that the learned Tribunal
failed to appreciate that the conviction and sentence passed by the
learned Trial Court having been set aside and quashed by the Hon'ble
Court vide order dated 10.07.2001, the order of dismissal dated
27.07.2001 passed in pursuance thereto had become illegal and
inoperative. Hence, the Petitioner's Husband ought to be treated as "on
service" till his superannuation and would be entitled to back wages
along with interest. To buttress the arguments, reliance is placed upon
Shobha Ram Raturi v. Haryana Vidyut Prasaran Nigam ltd. and
Ors.:(2016) 16 SCC 663 and Deepali Gundu Surwase v. Kranti
Junior Adhyapal Mahavidyalaya and Ors.:MANU/SC/0942/2013.
15. He submitted that the Petitioner's Husband would have been
entitled to all the consequential benefits of promotion to higher grades
which he could not avail due to his illegal dismissal from service.
16. Per contra, the learned counsel for the Respondents submitted
that Lt. Shri Trinath Prakash was caught redhanded demanding and
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accepting illegal gratification and was then arrested by the CBI, and
was subsequently convicted and sentenced for the offences under the
P.C. Act, after due appreciation of the evidence. He submitted that the
Petitioner's husband was dismissed from service pursuant to the said
conviction and no appeal has been preferred against the said order of
dismissal.
17. He submitted that the claim of the Petitioner for gratuity to the
tune of Rs. 27,885/- was settled on 08.04.2004 and her family pension
payment order dated 05.04.2004 was sent to PM, Naraina HO, New
Delhi on 20.04.2004. He submitted that no other amount is liable to be
paid to the Petitioner.
Analysis
18. It remains undisputed that the Petitioner's husband was
dismissed from service on 27.07.1977 pursuant to being convicted for
offences under the Prevention of Corruption Act. The said order of
conviction was set aside by this Court vide order dated 10.07.2001 on
technical grounds without going into the merits of the case. The
Petitioner's husband had passed away on 23.05.1993, during the
pendency of the said appeal.
19. It is pertinent to note that the learned Tribunal, pursuant to the
order of conviction of the Petitioner's husband being set aside, has held
that the Petitioner's husband shall be deemed to have continued in
service on notional basis from 27.07.1977 till the date of his
superannuation on 31.01.1992 and the said period shall be taken into
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account for the purpose of computation of retiral benefits and family
pension as due to the Petitioner.
20. It has also been submitted before this Court that the Petitioner
has already received gratuity and family pension pursuant to the order
of the learned Tribunal.
21. Hence, the only remaining grievance of the Petitioner was with
regard to her entitlement to receive arrears of wages, due to her husband
from 27.7.1977 onwards, alongwith consequential benefits of
promotion to the higher posts from the date of promotion of his juniors.
Further, the Petitioner claims interest on the said amount and on the
retiral benefits awarded to her.
22. Undisputedly, the Petitioner's husband did not work for the
Respondents from 27.07.1977 till his death on 23.05.1993, on account
of him being convicted by the learned Trial Court. Firstly, applying the
principle of "no work no pay", the Department cannot be asked to pay
the Petitioners wages for the period he had admittedly not served the
department.
23. Though much has been emphasised upon the dismissal being
illegal after acquittal and the Petitioner's husband not being able to
serve the department because of their own decision. The Petitioner has
placed reliance on the judgments of the Hon'ble Apex Court in Shobha
Ram Raturi v. Haryana Vidyut Prasaran Nigam ltd. and Ors. (supra)
and Deepali Gundu Surwase v. Kranti Junior Adhyapal
Mahavidyalaya and Ors.(supra), to agitate that the Petitioner would be
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entitled to receive back wages of her husband as he had been wrongfully
dismissed due to the fault of the Respondents.
24. In the opinion of this Court, the reliance placed by the Petitioner
on the aforesaid judgments is misplaced as those decisions arose in the
context of illegal termination or wrongful denial of reinstatement by the
employer, where the action of the employer itself was found to be
unjustified.
25. In the present case, it remains undisputed that the Petitioner's
husband was convicted on the basis of appreciation of evidence as he
was held guilty of demanding and accepting illegal gratification. The
Petitioner's husband's dismissal from service was not due to any
independent action by the department which has been subsequently
found to be illegal, but admittedly on the basis of his conviction in a
criminal case, that too with respect to abuse of official powers for
demanding illegal gratification. The legality of such dismissal is to be
assessed with reference to the circumstances prevailing on the date the
order was passed. Thus, the department cannot, in any manner, be found
at fault for dismissing him from service as a conviction for such an
offence, upon appreciation of evidence, reflects that his conduct not
only rendered him unbecoming of a government servant but also against
the foundational principles of integrity and devotion to duty.
Pertinently, no appeal had been preferred against this dismissal by the
Petitioner or her husband.
26. Even otherwise, the subsequent acquittal, is admittedly, as also
recorded in the order passed by this Court, essentially on the ground of
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the sanction accorded being improper and was without delving into the
merits or allegations of the case. Such a setting aside of conviction
cannot be equated with an honourable acquittal establishing the
innocence of the accused. Hence, in the facts of the present case, the
subsequent setting aside of the conviction would not ipso facto render
the dismissal illegal from its inception, particularly when the employer
had no role in initiating the criminal prosecution and the conviction was
recorded after due trial by a competent court.
27. This view is further strengthened by the view taken by the
Hon'ble Apex Court in Union of India v. Jaipal Singh : (2004) 1 SCC
121, wherein it was held that when a public servant is implicated in a
criminal case and, upon trial, is convicted by the competent court, the
department is legally bound to keep such an employee out of service.
In the event the conviction is subsequently set aside, no fault can be
attributed to the department for having excluded him from service
during the period of conviction, as the law obliges that a person
convicted of an offence cannot be retained in service. The relevant
extract of the aforesaid judgment is reproduced herein below:
"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 detailed reasons
therefor 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 therefor it operates as a binding precedent as well. On
going through the same, we are in respectful agreement with the
view taken in Ranchhodji [(1996) 11 SCC 603 : 1997 SCC (L&S)
491] . 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
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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 not 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.
28. A similar view has also been taken by the Hon'ble Apex Court
in Ranchhodji Chaturji Thakore v. Gujrat Electricity Board,
Himmatnagar : (1996) 11 SCC 603.
29. Hence, considering that the acquittal of the husband was solely
on legal grounds, without going into the merits of the case, while he had
been convicted by the learned Trial Court after due appreciation of
evidence, the learned Tribunal has already taken a lenient view in
awarding the Petitioner retiral benefits by holding him notionally in
service in the said period. No case has been made out by the Petitioner
for awarding back wages to the Petitioner for the period from 27.7.1977
onwards alongwith consequential benefits of promotion, especially
considering that undisputedly, the Petitioner's husband did not serve
with the Respondents from 1977 till his death and was dismissed from
service due to his conviction.
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30. The Petitioner is also not entitled to receive any interest on the
amount awarded to her considering that the post retiral benefits have
been allotted belatedly only because the Petitioner's husband had been
previously convicted in a criminal case and no fault can be attributed to
the Respondents for the same.
31. Any contentions with respect to the procedural lapses by the
department while dismissing the Petitioner's husband, are untenable
and cannot be agitated at this stage, since undisputedly, the Petitioner
or her husband had chosen not to challenge the dismissal from service
in 1977, i.e. almost 5 decades ago.
32. In view of the above, we find no reason to interfere with the
impugned order.
33. Accordingly, the present petition is dismissed, along with
pending application(s), if any.
AMIT MAHAJAN, J.
ANIL KSHETARPAL, J.
MARCH 13, 2026
vv
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