Jharkhand High Court
Dakshin Kumar Mahato @ ... vs The State Of Jharkhand on 28 March, 2022
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(S) No. 4486 of 2009
Dakshin Kumar Mahato @ Dakshineshwar Mahato, aged about 59
years, Son of Late Bijay Ram Mahato, resident of Village -Pundru.
Tola Kushtard, P.O. Pundru, P.S. Pindrajora, District Bokaro.
... ... Petitioner
Versus
1. The State of Jharkhand
2. The Director, Secondary Education, Government of Jharkhand,
Project Bhawan, Dhurwa, at & P.O. Dhurwa, P.S. Hatia, Ranchi.
3. The Regional Deputy Director of Education, North Chhotanagpur
Division, at, P.O. & P.S. Hazaribagh, District-Hazaribagh.
4. The District Education Officer, at, P.O. & P.S. & District-Bokaro.
5. The Sub-Divisional Education Officer, at, P.O., P.S. & District-
Bokaro.
6. The Headmaster, Janata High School, at & P.O. Pundru, P.S.
Pindrajora, District- Bokaro. ... ... Respondents
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CORAM :HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
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For the Petitioner : Mr. Atanu Banerjee, Advocate
Ms. Pooja Kumari, Advocate
For the Respondents : Mr. Jayant Franklin Toppo, Advocate
25/28.03.2022
1. Learned counsel for the parties are present.
2. Heard Mr. Atanu Banerjee, learned counsel appearing on behalf
of the petitioner.
3. Heard Mr. Jayant Franklin Toppo, learned counsel appearing on
behalf of the Respondents.
4. This writ petition has been filed for the following reliefs: -
"THAT the Petitioner prays for issuance of a Writ in
the nature of Mandamus; or an appropriate
Writ(s)/Rule(s)/Order(s)/Direction(s) QUASHING the
order of dismissal of the Petitioner passed by District
Education Officer, Bokaro (Respondent No. 4) by
Office Order No. 503/Bokaro dated 19.05.2004 as
contained in Annexure-5, without issuing Notice to the
petitioner to show-cause to that effect, and without
initiating any Departmental Enquiry, on the ground
that the Petitioner has been convicted in a criminal
case in connection with a land dispute in the village,
which has no concern with his Service as a Clerk in the
School, and in spite of the fact that prior to passing of
the said Order the present Petitioner has been granted
Bail by Order dated 8.4.2004 by the Hon'ble High
Court on admission of his Criminal Appeal 439/2004
alongwith others; and for Commanding upon the
respondents to allow the Petitioner to continue in his
duty/service with all consequential benefits; and
further, for issuance of a Writ in the nature of
Prohibition for restraining the respondents from
acting in pursuant to the Office Order as contained in
Annexure-5."
5. Prayer for Amendment to the writ petition vide I.A. No. 429 of
2022 has been allowed by the last order. Accordingly, decision of the
District Level Establishment Committee taken on 26.09.2020 and
communicated to the petitioner vide memo no. 1561 dated 29.09.2020
by the District Education Officer, Bokaro is also under challenge in
this writ petition. By the said order claim of pay to the petitioner
during the period from 26.02.2004 to 30.04.2010 has been rejected on
principle of "no work no pay" and it has also been directed not to
calculate the said period for the purpose of pension etc.
6. It has also been pointed out that the communication bearing
memo no. 1561 dated 29.09.2020 is on record in the supplementary
counter-affidavit filed by the State dated 08.10.2020 at Annexure-D
and the decision of the District Establishment Committee is a part of
the reply to another interlocutory application filed on 20.02.2021 by
the respondent no. 4 vide affidavit dated 05.03.2021 as Annexure- A
to the said reply.
Arguments of the Petitioner
7. The learned counsel for the petitioner submits that the petitioner
was convicted on 26.02.2004 in a criminal case pursuant to which, he
was dismissed from service. He attained the age of superannuation on
30.04.2010 and subsequently, he was acquitted by this Court in Cr.
Appeal No. 439 of 2004 on 13.12.2018 and therefore, the order which
is challenged in I.A. No. 429 of 2022 is not sustainable.
8. The learned counsel for the petitioner has submitted that the
writ petition was earlier filed in the year 2009 challenging the order of
dismissal, but during the pendency of the present case, the petitioner
attained the age of superannuation on 30.04.2010 and thereafter,
another order dated 29.09.2020 has been passed rejecting the claim of
back wages to the petitioner for the period 26.02.2004 to 30.04.2010
and the said period has been kept out of the pensionable service of the
petitioner which is now under challenge.
9. The learned counsel for the petitioner further submits that after
the petitioner was granted bail in the criminal case, the petitioner
made a representation dated 19.05.2004 for joining before the
Principal of the school and on the same day, the District
Superintendent of Education had passed the order of dismissal on
account of conviction of the petitioner on 26.02.2004. The learned
counsel submits that the petitioner was acquitted after his retirement
vide judgement dated 13.12.2018 passed in Cr. Appeal No. 439 of
2004 and in the judgement passed in the criminal appeal, it was held
that the prosecution party was the aggressor and consequently, benefit
of doubt was extended to the petitioner and others.
10. The learned counsel for the petitioner has also submitted that
as per Jharkhand Pension Rules i.e. Rule 43 and Rule 139, there is no
provision under which the aforesaid period could have been deducted
from the pensionable service of the petitioner and therefore, the
impugned order dated 29.09.2020 deducting the aforesaid period i.e.
the period from the date of conviction till the date of retirement from
the pensionable service, is perverse and is fit to be set-aside.
11. So far as the back wages is concerned, the learned counsel has
referred to Rule 97(2) of Jharkhand Service Code to submit that when
the authority mentioned under sub-rule 1 of Rule 97(2) is of the
opinion that the government servant has been fully exonerated, then
full pays and allowances to which he would be entitled should be
given. He submits that payment of full back wages is a matter of rule
and denial of full back wages is an exception.
12. The learned counsel submits that the authorities have not
applied their mind while denying the back wages for the period from
the date of his conviction till the date of his retirement and also while
refusing to calculate the said period for the purpose of pensionary
benefits.
13. The learned counsel has relied upon the judgements passed by
the Hon'ble Supreme Court reported in (2013) 7 SCC 685 (para 24
and 25); (1991) 4 SCC 109 (Union of India and Others Vs. K. V.
Jankiraman and Others) (para 25) and (2013) 11 SCC 67 (State
Bank of India and Another Vs. Mohammed Abdul Rahim) to
challenge the impugned orders.
Arguments of the Respondents
14. The learned counsel appearing on behalf of the respondents, on
the other hand, has opposed the prayer and has relied upon the
judgement passed by the Hon'ble Supreme Court reported in (1996)
11 SCC 603 (Ranchhodji Chaturji Thakore Vs. Superintendent
Engineer, Gujarat Electricity Board, Himmatnagar (Gujarat) and
Another) and also the judgement passed by this Court in L.P.A. No.
555 of 2014 to submit that when a criminal case is instituted at behest
of private third party and the employee is convicted, then the
employer i.e. the State of Jharkhand is a sufferer and cannot be
saddled with any liability of the payment of salary for the period for
which the employee did not work.
15. The learned counsel for the respondents has also submitted that
the petitioner had attained the age of superannuation while his order
of conviction was in force and therefore, the impugned order refusing
to calculate the period of his date of conviction till his date of
retirement for the purposes of calculation of pension, is in accordance
with law. He also submits that for the same reason, the impugned
order does not call for any interference. The learned counsel has
placed the impugned orders and submitted that the same is a well-
reasoned order and does not call for any interference by this Court. He
also submitted that the post-retirement benefits etc. have been
calculated for the petitioner during the period prior to his conviction
and any benefit post his conviction which was followed by the order
of dismissal is not admissible to the petitioner.
16. The learned counsel for the respondents also submits that the
State of Jharkhand cannot be made to suffer any financial loss on
account of the acts and omissions of the petitioner and if an order for
back wages and other benefits, as claimed by the petitioner, is directed
to be paid to the petitioner, then that would be a premium to the
petitioner in spite of the fact that the petitioner has not worked during
the said period.
Findings of this Court
17. After hearing the learned counsel for the parties, this Court
finds that admittedly the petitioner was convicted on 26.02.2004 in a
criminal case filed by a 3rd party under Sections 148, 323/149,
324/149 and 504/149 of the Indian Penal Code in S.T. Case No.
173/1998 and sentenced for a period of 7 years. The petitioner filed
Cr. Appeal No. 439/2004 before this Court which was admitted on
08.04.2004 and the petitioner was directed to be enlarged on bail by
this Court.
18. Thereafter, the petitioner vide letter dated 19.05.2004 gave his
joining in the school with explanation that during the period from
26.02.2004 to 13.04.2004, he was in judicial custody due to which he
could not join. The respondent No. 4 vide impugned order dated
19.05.2004 (annexure-5) dismissed the petitioner from the service
w.e.f. 26.02.2004 solely on account of his conviction i.e., from the
date he was convicted. The petitioner attained the age of
superannuation on 30.04.2010 during the pendency of the criminal
appeal and also filed this case on 16.09.2009 challenging the order of
dismissal. During the pendency of this case the petitioner was
acquitted by this Court in the aforesaid Criminal Appeal on
13.12.2018.
19. Upon perusal of the judgment passed in Cri. Appeal No.
439/2004 dated 13.12.2018, it appears that there was case and counter
case between two groups of persons and interalia, the petitioner was
accused and convicted in S. T. No. 173/1998 arising out of Pindrajora
P.S. Case No. 77/1996. The other case was Pindrajora P.S. Case No.
78/1996. The learned trial court had convicted both the sides in the
respective cases. The convicts in Pindrajora P.S. Case No. 78/1996
had preferred Cr. Appeal (S.J.) No. 492/2004 before this Court and the
convicts, including the petitioner in Pindrajora P.S. Case No. 77/1996
filed Cri. Appeal No. 439/2004. Coincidently, Cr. Appeal (S.J.) No.
492/2004 was disposed of prior to Cr. Appeal (S.J.) No.439/2004 and
Cr. Appeal (S.J.) No. 492/2004 was dismissed with modification in
sentence. Considering the fact that the conviction of the appellants in
Cr. Appeal (S.J.) No. 492/2004 was upheld, this Court, took a view in
Cr. Appeal (S.J.) No. 439/2004 that the appellants, including the
present petitioner, were entitled to benefit of doubt as the prosecution
party who were appellant in Cr. Appeal (S.J.) No. 492/2004 were the
aggressors and had not brought on record the two versions of the case.
Accordingly, the appellants of Cr. Appeal (S.J.) No. 492/2004 along
with the present petitioner were acquitted by granting the benefit of
doubt.
20. The consequence of acquittal of the petitioner in the criminal
case vide judgement dated 13.12.2018 passed in in Cr. Appeal (S.J.)
No. 439/2004 was considered by the District Establishment
Committee and during the pendency of this case, the decision of the
District Level Establishment Committee was communicated to the
petitioner vide letter dated 29.09.2020 whereby the claim of the
petitioner for pay during the period from 26.02.2004 to 30.04.2010
was declined on the principle of "no work no pay" and it was also
directed not to calculate the said service period for the purposes of
pension.
21. It is not in dispute that the criminal case against the petitioner
was not instituted by his employer, and it was a private case. It is
further not in dispute that the petitioner was dismissed from service
vide impugned order dated 19.05.2004 (Annexure-5) solely on
account of his conviction in the aforesaid criminal case and he attained
his age of superannuation while he remained convicted and was
acquitted in the year 2018 by extending benefit of doubt and holding
that the informant party were the aggressors.
22. During the course of hearing no arguments have been advanced
by the learned counsel for the petitioner regarding legality or validity
of dismissal of the petitioner solely on account of conviction of the
petitioner in a private criminal case. The arguments advanced by the
respective parties has been recorded in order dated 21.02. 2022.
Pursuant to earlier orders passed by this court, it has been brought on
record by the respondents that the petitioner had worked only till
26.02.2004 and admittedly the petitioner was taken into custody on
26.02.2004. On the basis of the arguments advanced by the parties,
the points to be considered in the present writ petition are: -
(a) Whether upon acquittal in the criminal case, the
petitioner is entitled for any back wages during the intervening
period from 26.02.2004 to 30.04.2010 under the facts and
circumstances of this case?
(b) Whether the aforesaid period between 26.02.2004 to
30.04.2010 is to be counted to be a part of service period for the
purposes of computation of pension etc?
Point no.(a)
Pay for the period from 26.02.2004 to 30.04.2010, during which
the petitioner remained convicted in criminal case and
consequently terminated from service
23. So far as the payment of back wages is concerned, it is the case
of the petitioner who has relied upon a judgment passed by the
Hon'ble Supreme Court reported in (2013) 7 SCC 685 (supra) to
submit that the term 'benefit of doubt' has been explained by the
Hon'ble Supreme Court and in the present case, the petitioner has
been a victim of the act of the aggressor as recorded by this Court
while acquitting the petitioner in the criminal case and therefore, the
acquittal of the petitioner is to be treated as honorable acquittal and
consequently, the petitioner should be held entitled for arrears of pay.
24. Upon perusal of the judgement of acquittal passed by the
appellate court, this court finds that the petitioner has clearly been
given benefit of doubt as the informant party were held to be
aggressor and the informant party stood convicted till the appeal in the
counter case. Accordingly, the acquittal of the petitioner cannot be
treated as honorable acquittal.
25. In the judgement passed in the case of Union of India v. K.V.
Jankiraman, (1991) 4 SCC 109 it has been held that the normal rule
of "no work no pay" is not applicable to such cases where the
employee is willing to work and is kept away from work by the
authorities for no fault on his part. This judgement does not apply to
the facts and circumstances of this case as the petitioner stood
dismissed during the period in question by the operation of law on
account of his conviction in a criminal case for which the respondents
were not at all responsible.
26. Admittedly the criminal case against the petitioner was arising
out of private dispute and was not instituted at the instance of the
employer and in such circumstances, admittedly there has been no
departmental proceedings as the department had nothing to do with
the criminal case. The petitioner was dismissed from service by the
force of law on account of his conviction in the criminal case and was
acquitted in the year 2018, after attaining his age of superannuation in
2010.
27. In the judgement passed by Hon'ble Supreme Court in the case
of Ranchhodji Chaturji Thakore v. Gujarat Electricity Board, (1996)
11 SCC 603, the appellant was convicted in a private dispute under
section 302/34 of IPC and solely on account of his conviction he was
dismissed from service and was acquitted subsequently. The Hon'ble
Supreme Court, while denying back wages on the principle of "no
work no pay" held in para 3 as under: -
"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."
28. It has been held by this Court in the judgment passed in L.P.A.
No. 555/2014((Chandrajeet Kumar @Chandrajeet Paswan versus
State of Jharkhand and others) decided on 4th September, 2015, by
clearly making a distinction between the conviction, where
prosecution is instituted at the behest of the department, and other
conviction, where prosecution arises out of private disputes with third
parties and unconnected with discharge of official duties. It has been
held that when the prosecution was never initiated at the behest of the
employer, but was initiated at the behest of private parties, it is the
State of Jharkhand who is the sufferer and consequently, the State of
Jharkhand cannot be saddled with a liability to payment of salary for
the period for which no work was done, as no service was rendered by
such a person. While deciding the aforesaid LPA, the Hon'ble
Division Bench of this court has taken into consideration a large
number of judgements decided by Hon'ble Supreme Court including
that of Ranchhodji Chaturji Thakore (supra) which has been heavily
relied upon by the respondents. This court is of the considered view
that the present case is squarely covered by the judgement passed in
the aforesaid L.P.A. cited and relied upon by the learned counsel for
the respondents.
29. Reasons recorded in Paragraphs 5(xi) and 5(xii) of the
aforesaid judgment passed in L.P.A. No. 555/2014 are quoted as
under: -
"(xi) It has been held by Hon'ble the Supreme Court in the case of
Baldev Singh v. Union of India, reported in (2005) 8 SCC
747 in paragraph nos. 7 and 8 as under:
"7. As the factual position noted clearly indicates, the
appellant was not in actual service for the period he was
in custody. Merely because there has been an acquittal
does not automatically entitle him to get salary for the
period concerned. This is more so, on the logic of no
work no pay. It is to be noted that the appellant was
terminated from service because of the conviction. Effect
of the same does not get diluted because of subsequent
acquittal for the purpose of counting service. The
aforesaid position was clearly stated in Ranchhodji
Chaturji Thakore v. Supdt. Engineer, Gujarat Electricity
Board.
8. The position was reiterated in Union of India v. Jaipal
Singh. (emphasis supplied)
(xii) It has been held by Hon'ble the Supreme Court in the case of
Corp. Mithilesh Kumar @ Mithilesh Singh v. Union of India
& Ors., in Civil Appeal Nos. 9601-9602 of 2010 arising out of
Special Leave Petition (C) No. 8440-8441 of 2009 dated 9th
November, 2010 as under:
"..... Ms. Indira Jaisingh, learned Additional Solicitor
General appearing for the Union of India has submitted
that the impugned judgment of the High Court requires
no interference and the legal position as focused by the
appellant is no longer res integra. She placed reliance on
the judgment of this Court in Ranchhodji Chaturji
Thakore Vs. Superintendent Engineer, Gujarat Electricity
Board, Himmatnagar (Gujarat) & Anr., (1996) 11 SCC p.
603. In this case also the appellant was convicted under
Section 302 read with Section34 of the I.P.C. And on that
basis he was dismissed from the service. The appellant
approached the High Court by filing an appeal against
the order of conviction and in that appeal, he was
acquitted of the offence. The respondent had reinstated
the appellant in service but denied the back-wages. This
Court examined this position and observed that "....
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 had 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...."
Learned Additional Solicitor General has also placed
reliance on a judgment of this Court in Union of India &
Ors. Vs. Jaipal Singh, (2004) 1 SCC p. 121. In this case
also the initial conviction was converted into acquittal by
the trial court. This Court observed that ".... 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. Consequently, the reasons given in the decision
relied upon, for the appellants are not only convincing
but are in consonance with reasonableness as well..."
Reliance was also placed on the decision in Baldev Singh
Vs. Union of India & Ors., (2005) 8 SCC p. 747. This
Court has reiterated the same principle that merely
because there has been an acquittal does not
automatically entitle the appellant to get the
consequential benefits.
In view of the consistent legal position, we cannot find
any fault with the impugned judgment of the High Court.
The appeals, being devoid of any merit are, accordingly,
dismissed. The parties are directed to bear their
respective costs." (emphasis supplied)
In view of the aforesaid decision, this appellant is not entitled to
get the salary for the period of suspension and the allowances
attached with the salary because the prosecution was never
initiated at the behest of the employer, but, it was initiated at the
behest of private parties because of long absenteeism of this
appellant of approximately 35 months, on the contrary, the State
of Jharkhand is a sufferer and, hence also, the State of
Jharkhand cannot be saddled with the liability of payment of
salary for the period for which, this appellant has not done any
work."
30. In view of the ratio of the aforesaid judgment passed by the
Hon'ble Division Bench in L.P.A. when applied to the aforesaid facts
and circumstances of this case, this Court is of the considered view
that the petitioner is not entitled to any pay for the period from
26.02.2004 to 30.04.2010 and the concerned authority in the
impugned order has rightly denied the same to the petitioner on the
principle of "no work no payment".
Point no.(b)
Inclusion of the period from 26.02.2004 to 30.04.2010 as a part of
pensionable period .
31. So far as the point regarding continuity of service i.e inclusion
of the period from 26.02.2004 to 30.04.2010 as a part of pensionable
period is concerned, admittedly, the petitioner remained absent from
duty right from 26.02.2004 as he was in custody on account of his
conviction vide judgment dated 26.02.2004 and was granted bail on
08.04.2004 in Cr. Appeal (S.J.) No. 439/2004. Thereafter the
petitioner moved the principal of the concerned school to give his
joining vide letter dated 19.05.2004 and upon receiving such
information, the petitioner was dismissed w.e.f. 26.02.2004 vide
memo No. 403 dated 19.05.2004. In view of the fact that the petitioner
was convicted in a criminal case, the order of dismissal was passed
against the petitioner by virtue of the provisions of Jharkhand Service
Code. The petitioner continued to remain convicted even till his
attaining the age of superannuation on 30.04.2010 and subsequently,
in the year 2018, he was acquitted by giving the benefit of doubt. The
effect of his conviction, which resulted in his order of dismissal,
continued till his attaining age of superannuation and beyond and the
petitioner was not entitled in law to perform his duties. The fact that
the petitioner was enlarged on bail by the appellate court has no
bearing as grant of bail relates only to suspension of sentence but the
conviction remains. Admittedly, the conviction of the petitioner was
never stayed by the appellate court in order to eclipse the effect of
conviction as well as sentence so as to entitle the petitioner for
consideration of joining the duty pending appeal. However, upon his
acquittal, the solitary basis of the dismissal i.e conviction in criminal
case, has been removed and had the petitioner not attained the age of
superannuation, he would have been entitled to reinstatement.
32. In the case of Baldev Singh v. Union of India, reported in
(2005) 8 SCC 747 it has been held that the appellant who had not
rendered service on account of his conviction is not entitled to
inclusion of that period for pension and such occasion would not arise
as the effect of conviction does not get diluted because of subsequent
acquittal for the purpose of counting service.
33. This court finds that as per Rule 97 of Jharkhand Pension
Rules, when a government servant who has been dismissed, removed
or suspended is reinstated, the authority competent to reinstate is
required to make a specific order regarding pay and allowances for the
period of absence from duty and also whether or not the said period
shall be treated as period spent on duty. The discretion has to be
exercised by the authority as to how the intervening period is to be
treated.
34. In the present case, during the period of absence from duty, the
petitioner stood convicted and he was granted the benefit of doubt by
the appellate court while acquitting him in the criminal case. This
court is of the considered view that the respondent authority has
exercised sound discretion while refusing to grant continuity of
service and refusing to count the intervening period as a part of
pensionable period of service. No ground has been made out by the
petitioner for any interference in the matter of refusing to count the
intervening period as a part of pensionable period of service.
Considering these aspects of the matter, this Court is of the considered
view that the impugned order by which the respondent has directed
that the period from 26.02.2004 till his age of superannuation will not
be countered for the purposes of pension, does not call for any
interference in writ jurisdiction.
35. Thus, both the points are decided against the petitioner.
36. As a cumulative effect of the aforesaid findings, the present
writ petition is dismissed.
37. Pending interlocutory application, if any, is closed.
(Anubha Rawat Choudhary, J.)
Pankaj/Mukul
