Madhya Pradesh High Court
Brahma Dutt Pathak vs The State Of Madhya Pradesh on 5 February, 2025
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK JAIN
ON THE 5th OF FEBRUARY 2025.
-WRIT PETITION NO. 20189 OF 2016 (S)
Brahma Dutt (B.D.) Pathak
VS.
State of Madhya Pradesh & others.
-------------------------------------------------------------------------------------
Appearance:
Shri K.N. Pethia - Advocate for the petitioner.
Ms. Supriya Singh - Government Advocate for respondent- State.
Shri P.K. Mishra - Advocate for the MPSRTC.
-------------------------------------------------------------------------------------
(O R D E R)
The present petition has been filed challenging the order Annexure
P/1 dated 24.08.1998 whereby the services of the petitioner have been
terminated so also the consequential order dated 04.04.2016 Annexure
P/7 whereby his representation has been turned down.
2. Learned counsel for the petitioner has submitted that the petitioner
was posted as incharge Depot Manager in Jagdalpur Depot of M.P. State
Road Transport Corporation (MPSRTC for short) in 1994, i.e. at the time
when the State of Madhya Pradesh was not divided and the State of
Chhattisgarh has not been bifurcated from the State of M.P. There was an
allegation against the petitioner that on 03.3.1994, he was trapped red
handed by Special Police Establishment Lokayukta, Raipur, then a part of
State of Madhya Pradesh. The said matter resulted in trial of the petitioner
under various provisions of Prevention of Corruption Act wherein by
judgment dated 17.08.1998, the Sessions Court convicted the petitioner
and awarded jail sentence as well as fine. The termination order was not
followed by any independent enquiry into the allegations against the
petitioner and it was only on the ground of the petitioner being convicted
by a criminal Court.
3. Further the case of the petitioner is that he was subsequently
acquitted in Cr.A. No. 1857/1998 which was initially filed before High
Court of M.P. but thereafter transferred to High Court of Chhattisgarh and
by judgment dated 20.04.2012 the conviction of the petitioner was set-
aside and he was acquitted of the charges levelled against him. The
acquittal of the petitioner on merits in criminal appeal is not disputed at
all.
4. After the petitioner was acquitted, he filed a application before the
Chhattisgarh Infrastructure Development Corporation which is the
successor body of MPSRTC in the State of Chhattisgarh. The said
Corporation rejected his representation on the ground that his services
were terminated while working in undivided Madhya Pradesh therefore,
Chhattisgarh Corporation will not decide his representation. Thereafter he
represented to the authority of MPSRTC for reinstatement and grant of
consequential benefits because the substratum of his termination had been
wiped off by his acquittal. The petitioner filed writ petition before this
Court being W.P. No. 18523/2012 wherein it was directed to decide his
representation. When the representation was not decided he again filed
W.P. No. 9585/2013 which was dismissed and thereafter, his
representation was decided by the authorities of MPSRTC granting him
certain benefits like arrears of dearness allowance, leave encashment,
Gratuity etc. However, salary for the aforesaid period of termination was
not paid to him. A contempt petition No. 1112/2013 was also rejected
which was filed alleging non-compliance of the order passed in W.P. No.
18523/2012 holding that the order seems to be complied with and if
something remains to be decided, the petitioner may raise it in
appropriate proceedings. Thus, it is contended that the termination of the
petitioner being based on conviction in criminal case, deserves to be set-
aside because his conviction has now been reversed in appeal and he has
been granted clean acquittal by High Court of Chhattisgarh.
5. The counsel for the respondent No. 2 and 3 has vehemently
opposed the present petition and heavily relied on an interim order passed
by this court during the course of hearing of the present petition on
20.07.2018 which is as under :-
"Shri K.N. Pethia, learned counsel for the petitioner after arguing for
some time prays for time to prepare the matter on the question whether
the termination order Annexure P/1 can be challenged after twenty
years and secondly when petitioner filed earlier writ petition before this
court and Chhattisgarh High Court he did not challenge the said order
or no interference was made on the said order. Representation
preferred thereafter was confined to financial benefits. Thus, petitioner
prays for time to examine whether he is barred by principle of
constructive resjudicata or a principle which is analogous to Order 2
Rule II and Section 11(v) CPC.
As prayed, list after a week."
6. It was argued that the earlier writ petition of the petitioner i.e. W.P.
No. 9585/2013 was rejected and therefore, the same issue cannot be
agitated again and again and also that the termination order Annexure P/1
cannot be put to challenge after 20 years and also that the representation
of the petitioner was confined to grant of financial benefits then how he
can pray for reinstatement by challenging the termination order.
7. Heard.
8. The termination order of the petitioner is placed on record as
Annexure P/1 and it is based only on the question of he being convicted
by a criminal Court for offences under Prevention of Corruption Act. The
order specifically mentions that enquiry has not been conducted because
on account of conviction by criminal court, there is no need to carry out
any departmental enquiry. Thus, it is clear that the sole ground of
termination was one and single and that was conviction by the criminal
court. The termination order reads as under:-
e/;izns'k jkT; lM+d ifjogu fuxe
eq[;ky; % Hkksiky
-------------@dkfeZd@lkr@98 fnukad % 24&8&98
@@vkns'k@@
Jh oh-Mh- ikBd] izHkkjh fMiks izca/kd dks txnyiqj fMiks esa izHkkjh fMiks
izca/kd ds in ij dk;Zjr jgrs gq, fnukad 3-3-94 dks Jh nhfyi dqekj
-----------/kkyd ls mls ekxZ ij pykus ,oa LfkkbZ djus ds fy;s 2500@& :i;s dh
fj'or ysrs gq;s jaxsgkFk iqfyl v/kh{kd] fo'ks"k iqfyl LFkkiuk] yksdk;qDr
dk;kZy;] jk;iqj] laHkkx jk;iqj }kjk idM+k x;k Fkk] ftlij vijk/k Øa- 2494
iathc) gqvkA vr% bl vk/kkj ij fo'ks"k l= U;k;k/kh'k] cLrj [kaM&txnyiqj
--------fo'ks"k izdj.k Øa- 2@95 fnukad 4-12-95 dks iathc) fd;k x;kA mDr
izdj.k ----esa fnukad 17-8-98 dks U;k;ky; us fu.kZ; ikfjr fd;k fdlesa Hkz"Vkpkj
fuokj.k vf/kfu;e 1988 dh /kkjk&7 ds rgr ^^,d** o"kZ dk l{ke dkjkokl rFkk
500@& :i;as vFkZn.M ls nafMr fd;k x;k gSA blh izdkj Hkz"Vkpkj fuokj.k
vf/kfu;e 1988 dh /kkjk 13 ¼1½ ¼Mh½ lgifBr /kkjk 13 ¼2½ ds rgr ^^nks** o"kZ
ds l{ke dkjkokl rFkk 500@& :i;s ds vFkZn.M ls nafMr fd;k x;k gSA
2@ U;k;ky; }kjk Jh oh-Mh-ikBd dks Hkz"Vkpkj fuokj.k vf/kfu;e 1988
dh /kkjk&7 ,oa 13 ¼1½ ¼Mh½ lgifBr /kkjk 13 ¼2½ ds vUrxZr i`Fkd&i`Fkd ----------
nks"kh ik;s tkus ij l{e dkjkokl ,oa vFkZn.M ls nafMr fd;k x;k gSA izdj.k
vR;ar xaHkhj izd`fr dk gSA U;k;ky; dk vkns'k Li"V gSA vr% izdj.k esa
foHkkxh; tkaap djus dk dksbZ vkSfpR; ugah gSA
3@ vr% Jh oh-Mh- ikBd ;krk;kr v/kh{kd ¼izHkkjh fMiks izca/kd½ lkxj fMiks
dks mDr ds izdj.k esas ^^lsokP;qr** fd;k tkrk gSA
gLrk@&
egkizca/kd 24@8@98
izfrfyfi %&
1- iqfyl v/kh{kd] fo'ks"k iqfyl LFkkiuk] yksd vk;qDr dk;kZy;] cLrj
laHkkx] txnyiqj dh vksj lwpukFkZA
2- fut lfpo] ek- v/;{k@mik/;{k@izca/k funsZ'kd@egkizca/kd] e-iz-jk-ifj-
fuxe eq[;ky;] HkksikyA
3- leLr foHkkxk/;{k] e-iz-jk-ifj- fuxe eq[;ky;] HkksikyA
4- leLr mi egkizca/kd@laHkkxh;&izca/kd@laHkkxh; ys[kkf/kdkjh] e-iz-jk-
ifj- fuxe
5- leLr eq[; dk;Z izca/kd@laHkkxh; rduhdh izca/kd@fMiks izca/kd ¼dk;Z½
vf/kdkjh@HkaMkj vf/kdkjh] e-iz-jk-ifj- fuxe A
6- Jh oh-Mh- ikBd] ;krk;kr v/kh{kd ¼izHkkjh fMiks izca/kd½ lkxj fMiksA
7- dk;kZy; v/kh{kd ¼dkfeZd ,d o nks½ eizjkifj fuxe] eq[;ky;] HkksikyA
vkslh@vkjlh@,Qlh-
gLrk@&
egkizca/kd 24@8@98
9. The petitioner was admittedly acquitted in appeal by Chhittisgarh
High Court on 20.04.2012 and before 20.04.2012 there was no question
for the petitioner to pray anything to the respondents either for release of
terminal benefits or for reinstatement in service or for salary because the
reason for termination was very well in existence and that was his
conviction in criminal case. It was only after his acquittal that he for the
first time filed an application before Chhattisgarh Infrastructure
Development Corporation on 14.05.2012 which was rejected on the
ground that this application should be filed before MPSRTC. Then
without any delay he filed application before MPSRTC on 12.07.2012
wherein a clear prayer was made that he should be taken back in duty and
also paid his dues.
10. Then he filed writ petition No. 18523/2012 which was decided vide
order dated 19.11.2012 Annexure P/4 directing the respondents to decide
his representation. The representation as already noted above was for
reinstatement as well as for grant of benefits. The representation is on
record as Annexure P/3.
11. So far as the rejection of W.P. No. 9585/2013 is concerned, the said
rejection of the writ petition was not on merit but is on the ground that
already there is direction in W.P. No. 18523/2012 for deciding his
representation and the representation has not yet been decided by the
respondents and the contempt petition No. 1112/2013 is pending and
therefore at this stage second writ petition seeking same relief is not
maintainable.
12. The writ petition was not dismissed on merit and this order did not
wipe off the order passed in W.P. No. 18523/2012 wherein direction was
issued to decide his representation. In contempt petition No. 1112/2013
which was filed in the matter of non-compliance of order in WP No.
18523/2012, ultimately the same was dismissed as some action had been
taken by the M.P.S.RT.C. and liberty was granted to the petitioner to
raise any issue if it remains to be decided, in an appropriate proceeding.
Thus, from the events as narrated above, it is clear that no res-judicata
much less any constructive res-judicata would apply against the petitioner
by effect of order passed in the W.P. 9585/2013.
13. The respondents thereafter, decided his case and the decision is
placed on record as Annexure P/6. In the said decision the respondents
have granted the benefit of leave encashment and certain arrears of D.A.
From this, recoveries of house rent, water charges etc. have been
deducted and the net amount of Rs. 75,980/- has been paid. This order
also indicates that the gratuity of the petitioner has also been paid.
14. Thus, from the order Annexure P/6, it is evident that the petitioner
has received his gratuity and leave encashment and now only the issue
remains is as to salary for the intervening period. The order Annexure P/6
also mentions in clear terms that he had received an amount of Rs.
31,458/- from Sagar Depot in the year 2008 towards D.A. and leave
encashment after effecting recoveries and that now gratuity amount of Rs.
78,123/- is also being sanctioned. The petitioner has admittedly been paid
gratuity amount of Rs. 75,980/- after deducting recovery of Rs. 2,043/-
from the said amount which he had received.
15. The termination order as already noted above is solely based on the
petitioner being convicted by the Sessions Court in a case under
Prevention of Corruption Act and was not subjected to any independent
separate enquiry by the employer. Therefore, once the petitioner had been
acquitted by the High Court of Chhattisgarh in criminal appeal,
substratum of termination order had been wiped off and the petitioner had
got a right to be reinstated in service.
16. However, the employer had terminated the services of the
petitioner as there was a order of conviction by a competent court for an
offence involving moral turpitude and there must have been some
enabling/authorising provision for that in the service regulations framed
under Section 45 of the Road Transport Corporations Act 1950.
Therefore, the substratum of the termination order Annexure P/1 dated
24.08.1998 has been wiped off and it deserves to be quashed.
17. but still the petitioner cannot as of right claim salary for the
intervening period because the employer was not at a fault in the matter.
The employer could not be expected to retain an employee who had been
convicted under an offence involving moral turpitude in service. The
petitioner could only seek reinstatement after he had been acquitted. The
Supreme Court in the case of Raj Narain v. Union of India reported in
(2019) 5 SCC 809 has held that there is no real difference between
initiation of criminal proceedings by the Department visa-vis a criminal
proceedings lodged by the police. It has been held that the employer
cannot be saddled with full backwages on acquittal of person by criminal
court unless it is found that the prosecution was malicious. The Hon'ble
Apex Court has held as under:-
"6. The decision of Ranchhodji Chaturji Thakore [Ranchhodji
Chaturji Thakore v. Gujarat Electricity Board, (1996) 11 SCC
603 : 1997 SCC (L&S) 491] was followed by this Court
in Union of India v. Jaipal Singh [Union of India v. Jaipal
Singh, (2004) 1 SCC 121 : 2004 SCC (L&S) 12] to refuse back
wages to an employee who was initially convicted for an offence
under Section 302 read with Section 34 IPC and later acquitted
by the High Court in a criminal appeal. While refusing to grant
relief to the petitioner therein, this Court held that subsequent
acquittal would not entitle an employee to seek back wages.
However, this Court was of the opinion that if the prosecution is
launched at the behest of the department and the employee is
acquitted, different considerations may arise. The learned
counsel for the appellant endeavoured to distinguish the
prosecution launched by the police for involvement of an
employee in a criminal case and the criminal proceedings
initiated at the behest of the employer. The observation made in
the judgment in Union of India v. Jaipal Singh [Union of
India v. Jaipal Singh, (2004) 1 SCC 121 : 2004 SCC (L&S) 12]
has to be understood in a manner in which the department
would become liable for back wages in the event of a finding
that the initiation of the criminal proceedings was mala fide or
with vexatious intent. In all other cases, we do not see any
difference between initiation of the criminal proceedings by the
department vis-à-vis a criminal case lodged by the police. For
example, if an employee is involved in embezzlement of funds or
is found indulging in demand and acceptance of illegal
gratification, the employer cannot be mulcted with full back
wages on the acquittal of the person by a criminal court, unless
it is found that the prosecution is malicious."
18. In the present case, there is nothing on record to suggest that there
was anything malicious in the prosecution of the petitioner. He was
convicted by the Sessions Court after full-fledged trial and in view of
evidence on record as assessed by the Sessions Court. However, the High
Court, in appeal acquitted him. In such a case it does not seem
appropriate to saddle the respondents with liability of full pay and
allowances for the period between termination till acquittal. However,
since the petitioner has ultimately been acquitted in appeal, the petitioner
would remain entitled to full salary from the date of acquittal till date of
superannuation on attaining age of 58 years, as prevailing in the
Corporation. However, the entire period from date of termination till
superannuation shall be counted as service period for all other purposes
except for the purpose of payment of full pay and allowances.
19. Consequently, the order of termination Annexure P/1 deserves to
be and is hereby set-aside and the petition is allowed in the following
terms :-.
a.) The petitioner is held not entitled to any salary for the period
of termination till date of acquittal.
b.) He would be entitled for arrears of salary from the date of
acquittal upto the date of superannuation (58 years of age).
c.) He would be entitled to all other consequential benefits
including notional increments for the entire termination period till
the date of superannuation and
d) His retiral benefits like leave encashment and gratuity would
be recalculated accordingly taking him to have been superannuated
on attaining the age of 58 years, after adjusting the amount already
paid.
e.) The petitioner would also be entitled to interest @ 6% per
annum on such remaining retiral benefits (Gratuity and Leave
encashment) from the date of his superannuation till the date of
actual payment.
20. In terms of the aforesaid, the petition is disposed of.
(VIVEK JAIN)
JUDGE
MISHRA
