Jharkhand High Court
4 Anjani Kumari D/O S/O Late Ramesh ... vs Central Coalfields Ltd. Through Its ... on 12 June, 2024
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad
IN THE HIGH COURT OF JHARKHAND AT RANCHI
--------
L.P.A. No. 217 of 2022
With
I.A. No. 9385 of 2023
------
1.1 Saraswati Devi w/o Late Ramesh Vishwakarma, aged about 50 years,
1.2 Alok Vishwakarma s/o Late Ramesh Vishwakarma, aged about 28
years,
1.3 Anup Vishwakarma, s/o Late Ramesh Vishwakarma, aged about 26
years,
1.4 Anjani Kumari d/o s/o Late Ramesh Vishwakarma, aged about 25
years,
All resident of Qr. No.B-22/32 B Type, Rajrappa Project, P.O.
Rajrappa Project, P.S. Rajrappa, District-Ramgarh.
... ... Petitioners/Appellants
Versus
1. Central Coalfields Ltd. through its Chairman-cum-Managing Director,
having its office at Darbhanga House, Ranchi, P.O., G.P.O., P.S.
Kotwali, District-Ranchi.
2. Director (Personnel) Central Coalfields Ltd., having its office at
Darbhanga House, Ranchi, P.O., G.P.O., P.S. Kotwali, District-Ranchi.
3. The General Manager (P&IR), Central Coalfields Ltd., having its office
at Darbhanga House, Ranchi, P.O., G.P.O., P.S. Kotwali, District-
Ranchi.
4. General Manager, Rajrappa Area, Central Coalfields Ltd. having its
office at Rajrappa, P.O. Rajrappa Project, P.S. Rajrappa, District-
Ramgarh.
5. Project Officer, Rajrappa Project, Central Coalfields Ltd., having its
office at Rajrappa, P.O. Rajrappa Project, P.S. Rajrappa, District-
Ramgarh.
6. Manager, Rajrappa Open Cast Project, Central Coalfields Ltd., having
its office at Rajrappa, P.O. Rajrappa Project, P.S. Rajrapa, District-
Ramgarh.
.. ... Respondents/Respondents
CORAM: HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON'BLE MR. JUSTICE ARUN KUMAR RAI
.....
For the Appellant : Mr. Alok Anand, Advocate
Page 1 L.P.A. No. 217 of 2022
Mr. Ramesh Kr. Singh, Advocate
Mr. Abhinesh Kumar, Advocate
For the Respondents : Mr. Amit Kr. Das, Advocate
Ms. Swati Shalini, Advocate
.....
07/Dated: 12th June, 2024
Per Sujit Narayan Prasad, J.:
I.A. No. 9385 of 2023:
1. This interlocutory application has been filed for condoning the delay of
47 days, which has occurred in preferring this appeal.
2. No counter to the delay condonation application has been filed.
3. Heard the parties.
4. Having heard the learned counsel for the parties and considering the
statements made in this application, we are of the view that the
appellants were prevented from sufficient cause in preferring this
appeal within time.
5. Accordingly, this interlocutory application is allowed and the delay of
47 days in preferring this appeal, is hereby condoned.
L.P.A. No. 217 of 2022:
Prayer:
6. The instant appeal under clause 10 of the letters patent is directed
against the order/judgment dated 14.02.2022 passed by the learned
Single Judge in W.P.(S) No. 1131 of 2021, whereby and whereunder,
the writ petition has been dismissed refusing to interfere with the order
of dismissal dated 25.07.2020 on being sought to recall the order of
dismissal after acquittal in the criminal case.
Facts:
7. The brief facts of the case as per the pleading made in the writ petition
which requires to be enumerated herein, reads as under:
The original writ-petitioner, namely, Ramesh Vishwakarma,
while in employment at Rajrappa Project of respondent-CCL, was
issued a showcause dated 16.07.2020 to the effect that his 'conviction'
awarded by learned Sub-Divisional Judicial Magistrate, Ramgarh
(Jharkhand) in GR/ Cases/ 00000/2017, CNR No.
JHRG030003142017, amounts to misconduct under Clause 26.08 of
Certified Standing Orders of CCL and thereby he was sought for his
explanation as to why he should not be dismissed from the employment
of company.
It is the case of the writ petitioner that his wife had informed the
Project Management of CCL regarding arrest of the writ-petitioner on
21.07.2017. Subsequently, the writ-petitioner was issued a charge-sheet
dated 28.01.2017 for the same set of charge which was the subject
matter of criminal trial leading to his conviction. The writ-petitioner
replied to the chargesheet on 28.01.2017, while he was in judicial
custody at Ramgarh Jail. On being enlarged on bail on 07.02.2017,
petitioner reported for duty on 08.02.2017 and was allowed to resume
his duty by office order dated 13.02.2017. However, further
proceedings in relation to the charge-sheet dated 28.01.2017 remained
awaited and thereby findings to the alleged act of misconduct including
moral turpitude did not reach to its logical end and remain inconclusive.
However, on receipt of the show-cause dated 16.07.2020, the petitioner
submitted representation on 18.07.2020 seeking one week's time to
submit his reply since three days' time was not sufficient to submit his
reply.
The writ-petitioner further submitted a representation on
20.07.2020 stating that he had not received the copy of order/ judgment
delivered by learned Trial Court and as such, he was unable to submit
explanation. However, the respondents instead of giving an objective
consideration to the writ-petitioner's representations, passed the
impugned order of punishment dated 25.07.2020, dismissing the
petitioner from the services of the Company holding him guilty under
Clause 26.8 of Certified Standing Orders of M/s. CCL. It is the specific
case of the writ-petitioner that before inflicting the order of punishment
no opportunity of hearing was afforded to the petitioner.
Being aggrieved with the said order of dismissal dated
25.07.2020 approached to this Court by filing writ petition being
W.P.(S) No. 1131 of 2021 which has been dismissed refusing to
interfere with the order of dismissal against which the instant intra-
court appeal has been preferred.
8. It is evident from the factual aspect that the writ petitioner while
working as Senior Dumper Coal Operator under the respondent-Central
Coalfields Ltd. although was decided to be proceeded departmentally
by issuance of chargesheet, however, one criminal case was also
instituted for the same set of allegations, hence, the respondents have
decided not to proceed with departmental proceeding for the purpose to
wait for the outcome of the criminal case.
In the said criminal case, the writ-petitioner had been convicted
by the concerned learned trial court. The writ-petitioner, thereafter, has
been dismissed from service vide order dated 25.07.2020 after being
issued with the show cause on 16.07.2020.
The writ-petitioner preferred appeal against the judgment of
conviction in which the judgment of conviction has been reversed to
that of acquittal and thereafter, the writ petitioner made an application
for review/recall of the order of dismissal on the ground that the order
of dismissal was passed solely on the ground of conviction which has
been reversed, as such, the very basis of the dismissal since has been
found to be not in existence but the authority concerned has not passed
any order due to the reason that in the meanwhile, the writ petitioner
had preferred a writ petition before this Court.
The learned Single Judge has called upon the respondent-CCL
wherein the ground had been taken by referring to the judgment of
acquittal that since the judgment of acquittal is based on benefit of
doubt, as such, it cannot be said to be honourable acquittal hence, the
principle of acquittal in a criminal case will not be applicable once the
order of dismissal has been passed by the employer.
The learned Single Judge has agreed with the said submission
and has dismissed the writ petition against which the present intra-court
appeal has been preferred.
Arguments on behalf of the Appellants:
9. Mr. Sharad Kaushal, learned counsel for the appellant has taken the
following grounds:
(i) The learned Single Judge has not appreciated the legal issues in
the pretext that when the order of dismissal was passed only on
the basis of conviction in the criminal case, although the
memorandum of charge was issued but the departmental
proceeding was kept at hold awaiting outcome of the criminal
case, therefore, the contention has been raised that the moment
the writ-petitioner has been acquitted in the criminal case by the
superior forum then the very ground of dismissal since not in
existence, the respondent-authority ought to have recalled the
order of dismissal but instead of doing so, no order was passed
on the application filed for recall of the order of dismissal.
(ii) Learned counsel has submitted that the said principle is
applicable only in a case where the departmental proceeding and
judicial proceeding if initiated on the same set of facts and the
order of dismissal or any punishment whatsoever as enshrined in
the conduct rule, if imposed, depending upon the finding
recorded by the enquiry office then the said principle will be
applicable but the principle in case of dismissal based upon the
conviction only without having any finding by the enquiry
officer, the same will not be applicable.
The learned Single Judge has not appreciated the aforesaid
fact and hence, the impugned judgment is not sustainable in the
eyes of law.
(iii) The ground has been taken that the question of honourable
acquittal or the acquittal on benefit of doubt is immaterial if the
order of dismissal is based solely upon the conviction in the
criminal case.
(iv) It is also admitted on the part of the respondent-CCL that there is
no departmental proceeding and as such, taking no decision on
the application filed for recall of the order of dismissal is not
sustainable in the eyes of law.
10. Learned counsel for the writ-petitioner, based upon the aforesaid
ground, has submitted that the impugned order suffers from error, as
such, not sustainable in the eyes of law.
Arguments on behalf of the Respondent-CCL:
11. Ms. Swati Shalini, learned counsel for the respondent-CCL has
defended the impugned order by taking the ground that the learned
Single Judge has refused to interfere with the impugned decision which
has been passed by the respondent-employer on the ground that the
acquittal since was found to be on benefit on doubt and not on merit, as
such, if the claim of the writ petitioner was rejected on the ground of
acquittal, the same cannot be said to suffer from an error. The learned
Single Judge has taken into consideration the aforesaid aspect of the
matter which led the learned Single Judge to dismissed the writ petition
and hence, the impugned order needs no interference.
12. Learned counsel for the respondent has taken the ground in addition to
the above that the complainant has preferred acquittal appeal against
the judgment of acquittal.
Response on behalf of the Appellant:
13. Learned counsel for the appellant has submitted that so far as the
argument advanced on behalf of the respondent regarding filing of
acquittal appeal is concerned, the same cannot be taken as a ground for
consideration since the same was not the ground taken in the impugned
order while rejecting the claim of the writ petitioner for recall/review of
the order of dismissal.
Analysis:
14. We have heard the learned counsel for the parties and gone across the
pleading made in the writ petition and memo of appeal as also the
finding recorded by the learned Single Judge.
15. The undisputed fact in this case is that the writ-petitioner while
discharging his duty as Senior Dumper Coal Operator has been decided
to be proceeded departmentally. The memorandum of charge was also
served but the departmental proceeding has not proceeded since no
enquiry officer was appointed and no notice has ever been issued to the
writ petitioner to participate before the enquiry officer in the enquiry.
The said fact is admitted by the respondents.
The reason for not appointing the enquiry officer perhaps is the
pending criminal case since on the same set of allegations, a criminal
case was also instituted being G.R. No. 65 of 2017. The said criminal
case culminated into judgment of conviction. Thereafter, the respondent
has passed the order of dismissal on 25.07.2020. Thereafter, the writ-
petitioner preferred an appeal before the superior forum in which the
judgment of conviction has been quashed and set aside and thereafter,
the writ-petitioner made an application for review/recall of the order of
dismissal dated 25.07.2020 but the respondent-authority had not taken
any decision, thereafter the writ-petitioner had preferred writ petition
before this Court.
16. The learned Single Judge has considered the judgment of acquittal and
has come to the conclusive finding that the said judgment cannot be
said to be honourable acquittal rather it is on the basis of the benefit of
doubt, hence, no benefit can be given to the writ-petitioner.
17. The writ-petitioner being aggrieved with the said order passed by the
learned Single Judge, has preferred the instant appeal.
18. This Court, in order to decide the issue, requires to consider that :
(i) whether the parameter which has been followed by giving the
finding by the learned Single Judge based upon which the writ
petition has been dismissed solely on the ground that the order of
dismissal can only be interfered with if the acquittal is
honourable and not on the basis of benefit of doubt.
(ii) whether the aforesaid principle is applicable in a case where the
order of dismissal is solely based upon the judgment of
conviction or the said principle is applicable in a case where the
order of dismissal is based upon the finding recorded by the
enquiry officer in course of departmental proceeding and
subsequent thereto, if on the same set of allegations, the criminal
case has been instituted in which acquittal order has been passed
by the superior forum, can such finding be said to be legally
proper.
Both the issues since are interlinked, as such, are being dealt
with together but before answering the said issue, the judicial
pronouncement of the Hon'ble Apex Court needs to be referred herein
on the principle of the decision to be taken in case of pending
departmental proceeding and the judicial proceeding.,
19. The judgment which has laid down the principle of
simultaneous/parallel departmental or judicial proceeding has been
dealt with by the Hon'ble Apex Court in the case of M. Paul. Anthony
v. Bharat Gold Mines Ltd., reported in (1999) 3 SCC 679 wherein the
Hon'ble Apex Court has been pleased to hold that there is no bar in
initiating parallel proceeding by way of initiating departmental or
judicial proceeding but the proposition has been laid down in the said
judgment that the departmental proceeding is to wait for the outcome of
the criminal case if some of the conditions are available which has been
dealt with in the said judgment. Relevant paragraph of the said
judgment is being referred as under:
"22. The conclusions which are deducible from various decisions of
this Court referred to above are:
(i) Departmental proceedings and proceedings in a criminal case can
proceed simultaneously as there is no bar in their being
conducted simultaneously, though separately.
(ii) If the departmental proceedings and the criminal case are based
on identical and similar set of facts and the charge in the criminal
case against the delinquent employee is of a grave nature which
involves complicated questions of law and fact, it would be
desirable to stay the departmental proceedings till the conclusion
of the criminal case.
(iii) Whether the nature of a charge in a criminal case is grave and
whether complicated questions of fact and law are involved in
that case, will depend upon the nature of offence, the nature of the
case launched against the employee on the basis of evidence and
material collected against him during investigation or as reflected
in the charge-sheet.
(iv) The factors mentioned at (ii) and (iii) above cannot be considered
in isolation to stay the departmental proceedings but due regard
has to be given to the fact that the departmental proceedings
cannot be unduly delayed.
(v.) If the criminal case does not proceed or its disposal is being
unduly delayed, the departmental proceedings, even if they were
stayed on account of the pendency of the criminal case, can be
resumed and proceeded with so as to conclude them at an early
date, so that if the employee is found not guilty his honour may be
vindicated and in case he is found guilty, the administration may
get rid of him at the earliest."
20. Similarly, the Hon'ble Apex Court in the case of Stanzen Toyotetsu
India (P) Ltd. v. Girish V., (2014) 3 SCC 636 has reiterated the same
view in the paragraph 8 of the aforesaid judgment which reds as under:
"8. We have heard the learned counsel for the parties at some length.
The only question that falls for determination in the above backdrop is
whether the courts below were justified in staying the ongoing
disciplinary proceedings pending conclusion of the trial in the
criminal case registered and filed against the respondents. The
answer to that question would primarily depend upon whether there is
any legal bar to the continuance of the disciplinary proceedings
against the employees based on an incident which is also the subject-
matter of criminal case against such employees. It would also depend
upon the nature of the charges in the criminal case filed against the
employees and whether the case involves complicated questions of law
and fact. The possibility of prejudice to the employees accused in the
criminal case on account of the parallel disciplinary enquiry going
ahead is another dimension which will have to be addressed while
permitting or staying such disciplinary enquiry proceedings. The law
on the subject is fairly well settled for similar issues and has often
engaged the attention of this Court in varied fact situations. Although
the pronouncements of this Court have stopped short of prescribing
any straitjacket formula for application to all cases, the decisions of
this Court have identified the broad approach to be adopted in such
matters leaving it for the courts concerned to take an appropriate
view in the peculiar facts and circumstances of each case that comes
up before them. Suffice it to say that there is no short-cut solution to
the problem. What is, however, fairly well settled and was not
disputed even before us is that there is no legal bar to the conduct of
the disciplinary proceedings and a criminal trial simultaneously."
21. The Hon'ble Apex Court has further laid down the proposition that in
case of departmental or judicial proceeding having initiated on the same
set of allegations, what would be the effect if there is acquittal in the
criminal case. The Hon'ble Apex Court in the case of State of
Karnataka and Anr. vs. Umesh, reported in (2022) 6 SCC 563 had laid
down the proposition that if there is acquittal in the criminal case based
upon the same set of evidence, the finding has been recorded by the
enquiry officer, then the acquittal is not found to be on merit, no benefit
is to be given to the delinquent employee so far as the interference to be
shown in the order of punishment is concerned. Such proposition has
been laid down for the reason that in case of criminal trial, if the same
set of evidence, contradictory picture has been given by way of
deposition before the criminal court of jurisdiction in course of trial
contrary to the deposition made by the same witness before the enquiry
officer then by following the principle that the criminal trial is based
upon the conviction in the criminal case is to be based upon if the
charge has been found to be proved beyond all shadow of doubt while
in the departmental proceeding, the principle has been laid down of
proving charge beyond all shadow of doubt is not available rather it is
governed by the preponderance of probabilities. For ready reference,
the relevant paragraph is being referred as under:
"18. In the course of the submissions, the respondents placed reliance
on the decision in Union of India v. Gyan Chand Chattar [Union of
India v. Gyan Chand Chattar, (2009) 12 SCC 78 : (2010) 1 SCC
(L&S) 129] . In that case, six charges were framed against the
respondent. One of the charges was that he demanded a commission
of 1% for paying the railway staff. The enquiry officer found all the six
charges proved. The disciplinary authority agreed with those findings
and imposed the punishment of reversion to a lower rank. Allowing
the petition under Article 226 of the Constitution, the High Court
observed that there was no evidence to hold that he was guilty of the
charge of bribery since the witnesses only said that the motive/reason
for not making the payment could be the expectation of a commission
amount. The respondent placed reliance on the following passages
from the decision : (SCC pp. 85 & 87, paras 21 & 31)
"21. Such a serious charge of corruption requires to be
proved to the hilt as it brings both civil and criminal
consequences upon the employee concerned. He would be liable
to be prosecuted and would also be liable to suffer severest
penalty awardable in such cases. Therefore, such a grave charge
of quasi-criminal nature was required to be proved beyond the
shadow of doubt and to the hilt. It cannot be proved on mere
probabilities.
31. ... wherein it has been held that the punishment should
always be proportionate to the gravity of the misconduct.
However, in a case of corruption, the only punishment is
dismissal from service. Therefore, the charge of corruption must
always be dealt with keeping in mind that it has both civil and
criminal consequences."
19. The observations in para 21 of Gyan Chand Chattar case [Union
of India v. Gyan Chand Chattar, (2009) 12 SCC 78 : (2010) 1 SCC
(L&S) 129] are not the ratio decidendi of the case. These observations
were made while discussing the judgment [Union of India v. Gyan
Chand Chattar, 2002 SCC OnLine Guj 548] of the High Court. The
ratio of the judgment emerges in the subsequent passages of the
judgment, where the test of relevant material and compliance with
natural justice as laid down in Rattan Singh [State of
Haryana v. Rattan Singh, (1977) 2 SCC 491 : 1977 SCC (L&S) 298 :
(1977) 1 SLR 750] was reiterated : (Gyan Chand Chattar case [Union
of India v. Gyan Chand Chattar, (2009) 12 SCC 78 : (2010) 1 SCC
(L&S) 129] , SCC p. 88, paras 35-36)
"35. ... an enquiry is to be conducted against any person
giving strict adherence to the statutory provisions and principles
of natural justice. The charges should be specific, definite and
giving details of the incident which formed the basis of charges.
No enquiry can be sustained on vague charges. Enquiry has to
be conducted fairly, objectively and not subjectively. Finding
should not be perverse or unreasonable, nor the same should be
based on conjectures and surmises. There is a distinction in
proof and suspicion. Every act or omission on the part of the
delinquent cannot be a misconduct. The authority must record
reasons for arriving at the finding of fact in the context of the
statute defining the misconduct.
36. In fact, initiation of the enquiry against the respondent
appears to be the outcome of anguish of superior officers as
there had been an agitation by the railway staff demanding the
payment of pay and allowances and they detained the train
illegally and there has been too much hue and cry for several
hours on the railway station. The enquiry officer has taken into
consideration the non-existing material and failed to consider
the relevant material and finding of all facts recorded by him
cannot be sustained in the eye of the law."
(emphasis supplied)
On the charge of corruption, the Court observed in the above decision
that there was no relevant material to sustain the conviction of the
respondent since there was only hearsay evidence where the witnesses
assumed that the motive for not paying the railway staff "could be"
corruption. Therefore, the standard that was applied by the Court for
determining the validity of the departmental proceedings was whether
(i) there was relevant material for arriving at the finding; and (ii) the
principles of natural justice were complied with."
However, in the case of High Court of Judicature at Bombay
Vs. Uday Singh and others, reported in (1997) 5 SCC 129, the law has
been laid down that in the departmental proceeding the cogent evidence
is required to be there for inflicting punishment. For ready reference,
paragraph-10 is being referred as under:
"-------- the doctrine of proof beyond doubt has no application.
Preponderance of probabilities and some material on record would be
necessary to reach a conclusion whether or not the delinquent has
committed misconduct-------."
22. It is, thus, evident that the parameter for interference to be shown in the
order of dismissal which has been passed on conclusion of the
departmental enquiry will be different to that of the order of dismissal
has been passed without conclusion of departmental proceeding basing
the order of punishment only on outcome of the criminal case then what
would be the situation if the delinquent employee subsequently has
been found to be innocent.
23. This Court, on the basis of the aforesaid proposition is now to proceed
to examine the factual aspect of the present case.
24. Herein, admittedly the memorandum of charge was served but the
departmental proceeding was kept at hold since no enquiry officer was
appointed. However, in the criminal case, the writ petitioner was
convicted by the learned trial court and thereafter, the writ petitioner
was dismissed from service. The said judgment of conviction had been
reversed to that of the judgment of acquittal.
25. The writ petitioner, thereafter, made an application for recall/review of
the order of dismissal on the ground that since the order of dismissal is
solely based upon the judgment of conviction but no order was passed
by the respondent authority and in the meanwhile, the writ petitioner
had preferred writ petition.
26. The question herein is that if the ground based upon which the order of
dismissal has been passed by the employer has been extinguished then
what would be the consequence. The answer of this Court is that the
sole ground of dismissal if has been found to be extinguished
subsequently, then the foundation of the decision so taken by the
respondent will also be demolished.
27. The consideration to that effect has been made by the Hon'ble Apex
Court in the case of Basanti Prasad vs. Chairman, Bihar School
Examination Board and Ors., (2009) 6 SCC 791. Although the issue
which was assailed in the said judgment was with respect to the
applicability of the principle of delay and laches if the punishment
order has been passed based upon the judgment of conviction in the
criminal case but subsequently the appellate forum has reversed the
judgment of conviction to that of the judgment of acquittal but the
matter remained pending before the superior forum since the appeal
against the judgment of conviction was sub-judice.
The Hon'ble Apex Court has answered the said issue on such
facts and circumstances the principle of delay and laches will not be
applicable since the pendency of the appeal before the High Court was
not within the control of the litigant concerned. However, while dealing
with the said judgment, the fact has been taken note regarding the
consequence of acquittal in the criminal case on the decision taken by
the employer on punishment solely based upon the judgment of
conviction which is evident from paragraphs-27 & 28. For ready
reference, the aforesaid paragraphs are being referred as under:
"27. The facts are not in dispute. The services of the appellant's
husband were terminated only on the ground that he was convicted by
a Judicial Magistrate for the offences under the Penal Code. That only
means, no independent departmental enquiry was held against the
delinquent employee. In the appeal filed before the Sessions Court
against the order of conviction, the appellant has succeeded.
28. Since the punishment imposed was based on an order of
conviction and since the same is set aside by an order passed by a
superior forum and that order having become final for various
reasons, including the death of the appellant's husband, as natural
corollary, the request of the appellant requires to be redressed by the
employer and since that was (sic not) done, a writ court ought to have
exercised its extraordinary jurisdiction by commanding the
respondents to redress the grievance of the appellant without
resorting to a hypertechnical approach. In view of the above, the
order passed by the respondents terminating the services of the
appellant requires to be set aside and we do so."
28. The Hon'ble Apex Court by coming to the conclusion negating the
applicability of delay and laches has passed the order of reinstatement
of the appellant of the said case but without back wages which has been
dealt with at paragraph-29 of the aforesaid judgment. For ready
reference, the aforesaid paragraph is being referred as under:
"29. It is argued by the learned counsel for the respondent that if the
delay is condoned and relief is granted to the appellant, the respondent
would have to bear the brunt of paying huge arrears of salary and other
monetary benefits and, secondly, direction to pay arrears of wages is
not automatic and it depends on several factors. The learned counsel
has drawn our attention to the observation made by this Court in G.M.
Tank v. State of Gujarat1 wherein this Court has stated: (SCC p. 461,
para 32)
"32. In the instant case, the appellant joined the respondent in the
year 1953. He was suspended from service on 8-2-1979 and got
subsistence allowance of Rs 700 p.m. i.e. 50% of the salary. On 15-
10-1982 dismissal order was passed. The appellant had put in 26
years of service with the respondent i.e. from 1953-1979. The
appellant would now superannuate in February 1986. On the basis
of the same charges and the evidence, the department passed an
order of dismissal on 21-10-1982 whereas the criminal court
acquitted him on 30-1-2002. However, as the criminal court
acquitted the appellant on 30-1-2002 and until such acquittal, there
was no reason or ground to hold the dismissal to be erroneous, any
relief monetarily can be only w.e.f. 30-1-2002. But by then, the
appellant had retired, therefore, we deem it proper to set aside the
order of dismissal without back wages. The appellant would be
entitled to pension."
The facts in the aforesaid decision are more or less akin to the facts and
circumstances of this case. Therefore, the issue that we have raised for
our consideration need not detain us for long. Therefore, we are of the
view that the appellant is not entitled to back wages. The appellant
would be entitled to pension only."
29. This Court after having discussed the legal issue along with factual
aspect and coming to the judgment passed by the learned Single Judge
has found that the learned Single Judge has not appreciated the fact
about the basis of dismissal of the writ petitioner which is solely based
upon the conviction in the criminal case and the moment the judgment
of conviction has been reversed to that of the judgment of acquittal, the
sole ground since has been extinguished, hence, consequence would be
that the delinquent employee is to be reinstatement in service.
30. It has been submitted that the original writ petitioner has been
murdered and as such, the instant letters patent appeal is being pursued
by the legal heirs, i.e., wife and children, therefore, the question of
reinstatement after the death of the employee who has been dismissed
from service, cannot be passed rather the only question would be of
disbursement of post death monetary benefits.
31. At this juncture, reference of the judgement rendered in the case of
G.M. Tank vs. State of Gujarat and Ors., (2006) 5 SCC 446 needs to
be made. The factual aspect is that during pendency of the proceeding
before the higher forum, the person concerned, the delinquent
employee, had retired, then the issue arose that after retirement in case
of acquittal in the criminal case, whether the order of reinstatement can
be passed.
32. The Hon'ble Apex Court has answered that since after retirement on
attaining the normal age of superannuation, there cannot be any
reinstatement but such employee has been held to be entitled for the
pensionary benefit and other consequential benefits. For ready
reference, relevant paragraph is being referred as under:
"30. The judgments relied on by the learned counsel appearing for the
respondents are distinguishable on facts and on law. In this case, the
departmental proceedings and the criminal case are based on
identical and similar set of facts and the charge in a departmental
case against the appellant and the charge before the criminal court
are one and the same. It is true that the nature of charge in the
departmental proceedings and in the criminal case is grave. The
nature of the case launched against the appellant on the basis of
evidence and material collected against him during enquiry and
investigation and as reflected in the charge-sheet, factors mentioned
are one and the same. In other words, charges, evidence, witnesses
and circumstances are one and the same. In the present case, criminal
and departmental proceedings have already noticed or granted on the
same set of facts, namely, raid conducted at the appellant's residence,
recovery of articles therefrom. The Investigating Officer Mr V.B.
Raval and other departmental witnesses were the only witnesses
examined by the enquiry officer who by relying upon their statement
came to the conclusion that the charges were established against the
appellant. The same witnesses were examined in the criminal case and
the criminal court on the examination came to the conclusion that the
prosecution has not proved the guilt alleged against the appellant
beyond any reasonable doubt and acquitted the appellant by its
judicial pronouncement with the finding that the charge has not been
proved. It is also to be noticed that the judicial pronouncement was
made after a regular trial and on hot contest. Under these
circumstances, it would be unjust and unfair and rather oppressive to
allow the findings recorded in the departmental proceedings to stand.
31. In our opinion, such facts and evidence in the departmental as
well as criminal proceedings were the same without there being any
iota of difference, the appellant should succeed. The distinction which
is usually proved between the departmental and criminal proceedings
on the basis of the approach and burden of proof would not be
applicable in the instant case. Though the finding recorded in the
domestic enquiry was found to be valid by the courts below, when
there was an honourable acquittal of the employee during the
pendency of the proceedings challenging the dismissal, the same
requires to be taken note of and the decision in Paul Anthony case will
apply. We, therefore, hold that the appeal filed by the appellant
deserves to be allowed."
Conclusion:
33. Applying the said principle of the Hon'ble Apex Court laid down in the
case of G.M. Tank vs. State of Gujarat and Ors. (supra) in the facts
and circumstances of the present case, herein also, there cannot be any
order of reinstatement.
34. It has been submitted, at this juncture, by referring to the judgment
rendered by the Hon'ble Apex Court in Basanti Prasad vs. Chairman,
Bihar School Examination Board and Ors. (supra) that the writ
petitioner will not be entitled for the back wages due to the reason that
the principle of no work no pay will be applicable.
35. The aforesaid argument, according to our considered view, is having
foundation due to the reason that the principle of no work no pay is not
a normal rule rather the principle of no work no pay is applicable only
in a case where the employee concerned is willing to discharge his duty
but is being restrained from discharging duty. Reference in this regard
be made to the judgment rendered by the Hon'ble Apex Court in Union
of India and Ors. vs. K.V. Jankiraman and Ors., (1991) 4 SCC 109.
Relevant paragraph, i.e., para-25 of the said judgment is being
reproduced as under:
"25. We are not much impressed by the contentions advanced on
behalf of the authorities. The normal rule of "no work no pay" is not
applicable to cases such as the present one where the employee
although he is willing to work is kept away from work by the
authorities for no fault of his. This is not a case where the employee
remains away from work for his own reasons, although the work is
offered to him. It is for this reason that F.R. 17(1) will also be
inapplicable to such cases."
The Hon'ble Apex Court in Commissioner, Karnataka Housing
Board vs. C. Muddaiah, (2007) 7 SCC 689, at para-34 had been
pleased to hold which reads as under:
34. We are conscious and mindful that even in absence of statutory
provision, normal rule is "no work no pay". In appropriate cases,
however, a court of law may, nay must, take into account all the facts
in their entirety and pass an appropriate order in consonance with
law. The court, in a given case, may hold that the person was willing
to work but was illegally and unlawfully not allowed to do so. The
court may in the circumstances, direct the authority to grant him all
benefits considering "as if he had worked". It, therefore, cannot be
contended as an absolute proposition of law that no direction of
payment of consequential benefits can be granted by a court of law
and if such directions are issued by a court, the authority can ignore
them even if they had been finally confirmed by the Apex Court of the
country (as has been done in the present case). The bald contention
of the appellant Board, therefore, has no substance and must be
rejected.
36. This Court is of the view that herein the dismissal from service is based
upon the conviction in the criminal case therefore, the arrears of salary
from the date of dismissal till the date of judgment of acquittal dated
19.07.2021 will not be admissible.
Further, the moment the judgment of conviction has been
reversed to that of the judgment of acquittal, i.e., on 19.07.2021, then
from the date of acquittal, the writ petitioner will be entitled for the
back wages due to the reason that it is the respondent after the
judgment of acquittal has not allowed the writ petitioner to discharge
his duty and hence, applying the ratio laid down by the Hon'ble Apex
Court in Union of India and Ors. vs. K.V. Jankiraman and Ors.
(supra) and Commissioner, Karnataka Housing Board vs. C.
Muddaiah (supra), the writ petitioner/appellants will be entitled for the
salary from the date of acquittal till the date of his murder, and
thereafter, other consequential benefits also
37. This Court, after having observed as above, is of the view that the
impugned order needs to be interfered with.
38. Accordingly, the impugned order is hereby quashed and set aside.
39. In consequence thereof, the order of dismissal dated 25.07.2020 is also
hereby quashed and set aside and the writ petition also stands allowed.
40. The respondent-authority is directed to calculate the benefits w.e.f.
19.07.2021 as has been referred in the above paragraph(s) for its
disbursement in favour of the widow of the deceased employee within
the period of eight weeks.
41. So far as the pension/family pension is concerned, the respondents are
directed to calculate the same and disburse in favour of the widow of
the deceased employee within the period aforesaid.
42. In the result, the instant appeal stands allowed with the aforesaid
observation and direction.
43. Pending interlocutory application(s), if any, also stands disposed of.
(Sujit Narayan Prasad, J.)
(Arun Kumar Rai, J.)
Saurabh / A.F.R.
