Himachal Pradesh High Court
Duni Chand vs The State Of Himachal Pradesh And ... on 12 October, 2023
Bench: Ajay Mohan Goel
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
CWPOA No. 511 of 2020
Decided on : 12.10.2023
.
Duni Chand ....Petitioner.
Versus
The State of Himachal Pradesh and others ...Respondents.
Coram
The Hon'ble Mr. Justice Ajay Mohan Goel, Judge.
Whether approved for reporting?1 Yes
For the petitioner : Mr. Lokender Paul Thakur,
Advocate.
For the respondents : Mr. Pushpender Jaswal, Additional
r Advocate General with M/s Ranjana
Patial and Sumit Sharma, Deputy
Advocate Generals and Rajat Chauhan,
Law Officer.
Ajay Mohan Goel, Judge (Oral)
CMP-T No. 710 of 2023
For the reasons assigned therein, the application
is allowed.
CWPOA No. 511 of 2020
2. With the consent of learned Counsel for the
parties, the petition is taken up for hearing today itself and is
being disposed of after hearing learned Counsel for the
parties.
1 Whether reporters of the local papers may be allowed to see the judgment?
3. By way of this petition, the petitioner has inter alia
prayed for the following reliefs:-
.
(i) That the (Annexure A-1) dated 1.10.2015 may kindly
be quashed and set aside and the respondents may
kindly be directed to release the full pay and
allowances w.e.f. from 19.9.2001 to 17.6.2008 with
up to date increments with interest to the applicant
with all consequential benefits."
4. The case of the petitioner is that while working
as a work charged Beldar in I&PH Division Kandaghat,
District Solan, H.P. an FIR was registered against him, i.e.
FIR No. 11/96, dated 10.12.1996, at Police Station
Kandaghat, District Solan, under Sections, 306, 498-A,
109, 149 read with Section 34 of the Indian Penal Code.
The trial led to his conviction vide judgment dated
19.09.2001. The petitioner preferred an appeal against the
judgment of conviction and the High Court in Criminal
Appeal No. 553 of 2001, set aside the judgment of
conviction vide judgment dated 17.06.2008.
5. After the lodging of the FIR, the petitioner was
initially placed under suspension w.e.f. 19.09.2001 and
after his conviction by the learned Trial Court, his services
were terminated w.e.f. 18.07.2005. However, after the
judgment of conviction passed by learned Trial Court was
set aside in appeal, the petitioner was reinstated in service
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on 18.08.2010 with immediate effect. A copy of office order
dated 18.08.2010 is appended with the petition as
Annexure A-3.
6. Thereafter, the petitioner filed an Original
Application No. 1711 of 2015 before the erstwhile Himachal
Pradesh Administrative Tribunal inter alia seeking the
following relief:-
"(i) That the respondents may kindly be directed
to release the full pay and allowances w.e.f.
19.9.2001 to 18.8.2010 with up-to-date
increments with interest to the applicant with all
consequential benefits."
7. Said original application was disposed of by
learned Tribunal vide order dated order dated 25.08.2015,
directing the petitioner to file a representation to the
concerned Executive Engineer within a period of two weeks
with a further direction to the officer concerned to decide
the same after hearing the parties. The representation made
by the petitioner was rejected by the Executive Engineer
vide impugned order dated 01.10.2015, against which, this
petition has been filed.
8. Learned Counsel for the petitioner has argued
that the rejection of the claim of the petitioner for the grant
.
of full back wages with effect from the date he was placed
under suspension is not sustainable in the eyes of law as
once the judgment of conviction passed by learned Trial
Court was set aside by this Court in appeal, then said
judgment of conviction merges into the judgment of
acquittal passed by this Court and the petitioner has a
right to be presumed innocent from the very inception.
Learned Counsel has further argued that herein services of
the petitioner were not terminated after holding of an
enquiry but on account of his conviction. After the
judgment of conviction was set aside, he was reinstated in
service and in fact, he has been paid full wages w.e.f.
17.6.2008 onwards. Denial thereof to the petitioner from
19.09.2001 to 17.06.2008, i.e. the period during which he
initially was placed under suspension and thereafter was
terminated therefor, is not sustainable in the eyes of law.
Learned Counsel placed reliance on the judgment of
Hon'ble Division Bench of this Court in LPA No. 699 of
2011, titled as Manjit Singh vs. State of Himachal Pradesh
and others, decided on 31.08.2023.
9. Learned Additional Advocate General while
defending the order passed by respondent No. 3 has
.
submitted that during the period of suspension, an
employee is only to be paid subsistence allowance which
was duly paid to the petitioner and as the petitioner did not
serve the Department after his termination in the year
2005, there is no occasion for payment of any wages to him.
He further submitted that after the judgment of conviction
was set aside in appeal, the Department showed generosity
to the petitioner by reinstating him, though it was not
bound to do so and therefore also, the prayer of the
petitioner is totally unjustified. Accordingly, he prayed that
the present petition being devoid of merit be dismissed.
10. I have heard learned Counsel for the petitioner
as also learned Advocate General and have also carefully
gone through the pleading as well as documents appended
therewith.
11. The factual matrix already stands narrated by
me hereinabove. Moot issue herein is that, is the petitioner
entitled for reliefs being claimed by him after his acquittal
and reinstatement.
12. Hon'ble Division Bench of this Court in LPA No.
699 of 2011 titled as Manjit Singh vs. State of Himachal
Pradesh and others, decided on 31.08.2023, by placing
reliance upon a three Judge Bench of Hon'ble Supreme
.
Court in Brahma Chandra Gupta vs. Union of India (1984) 2
SCC 433 as well as State of Punjab and others vs. Shambhu
Nath Singla and Others, (1996) 1 SCC 296, has been pleased
to hold that where dismissal of an employee was only on
the ground of his conviction by the Criminal Court and
once the conviction was set aside by the judgment of the
High Court, the judgment of Trial Court convicting him
would merge in the judgment of High Court and appellant
has to be taken as innocent all through. Hon'ble Division
Bench also held that once the Department had itself
dropped the disciplinary proceedings post his acquittal, the
employee cannot be denied salary and allowances for the
period, for which the same was denied to him. It went on to
hold that even if the employee had not worked for some
period, it is to be taken that he was innocent and was
prevented from working for this period, and therefore, he
would be entitled to full salary and allowances for the said
period as well.
13. Applying the ratio of judgment passed by
Hon'ble Division Bench cited herein above, the order passed
by respondent No. 3 (Annexure P-1), cannot be sustained in
law. Herein also, once the judgment of conviction passed by
the Criminal Court against the petitioner was set aside in
.
appeal by the High Court, the judgment of the Trial Court
merged in the judgment of the High Court and the
petitioner has to be taken as innocent all through.
Incidentally, in the present case, no disciplinary
proceedings were initiated by the Department against the
petitioner at all. The argument of learned Additional
Advocate General that the petitioner cannot be paid wages
for the period he did not work can also be not accepted for
the reason that once the petitioner has to be taken to be
innocent, after his acquittal by the High Court all through,
the only inference that can be drawn is this that the
petitioner was prevented from working for the period in
issue not on account of his own act, therefore, he would be
entitled to full salary and allowances for the said period as
well.
14. Accordingly, this writ petition is allowed and
order dated 01.10.2015 (Annexure A-1), is quashed and set
aside and the respondents are directed to release full pay
and allowances in favour of the petitioner from 19.09.2001
to 17.06.2008 within a period of two months from today. If
the due amount is not released in favour of the petitioner
within two months from today, then the same shall entail
simple interest at the rate of 6% per annum as from the
.
date of passing of the judgment.
The petition stands disposed of in above terms,
so also pending miscellaneous application(s), if any.
(Ajay Mohan Goel)
October 12, 2023 Judge
(narender)
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