Madhya Pradesh High Court
Smt. Sumitra Namdev vs State Of Madhya Pradesh on 25 March, 2025
NEUTRAL CITATION NO. 2025:MPHC-GWL:7045
1 WP-2771-2007
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE ASHISH SHROTI
ON THE 25th OF MARCH, 2025
WRIT PETITION No. 2771 of 2007
SMT. SUMITRA NAMDEV
Versus
STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Mr. Bhagwan Raj Pandey - Advocate for the petitioner.
Mr. Vijay Sundaram - Government Advocate for the State.
ORDER
1. The petitioner has filed this petition praying for a direction to the
respondents to pay her back wages from 16.09.1993 till the date of her
reinstatement on 10.10.2003 and also to grant her seniority w.e.f. 16.09.1993.
2. The facts necessary for decision of the case are that the petitioner
was appointed as Ward Boy vide order dated 31.07.1993 (Annexure P-1). On
account of certain complaints, the appointment was canceled vide order
dated 24.08.1993 (Annexure P-2). Thereafter, the petitioner was tried in a
criminal case along with other co-accused persons in Criminal Case
No.347/1995. The criminal case was decided by the Court on 30.10.2002
(Annexure P-3), wherein the petitioner was acquitted from the charges. On
account of her acquittal in the criminal case, the petitioner was allowed to
rejoin her post vide order dated 03.10.2003 (Annexure P-5). Consequently,
the petitioner joined on the said post on 11.10.2003.
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3. From perusal of the seniority list filed as Annexure P-9, it is evident
that the petitioner was treated to have been appointed on 11.10.2003 i.e. the
date on which, she rejoined her services. Against the column of first
appointment, no date is mentioned. This shows that the petitioner has been
granted seniority w.e.f. 11.10.2003.
4. Learned counsel for the petitioner submits that she was not at fault
and on account of acquittal in the criminal case, she has been reinstated on
the post on 03.10.2003. Therefore, she cannot be deprived of benefit of
seniority from the initial date of appointment. He further submits that the
petitioner was not at fault, therefore, she is also entitled to benefit of full pay
and allowance w.e.f. 24.08.1993.
5. On the other hand, learned counsel for the respondents submits that
since the petitioner did not work on the post from 24.08.1993 to 03.10.2003,
she is not entitled to the benefit of pay and allowance on the principle of "no
work no pay". However, he could not point out any response with regard to
claim of the petitioner for grant of seniority w.e.f. 24.08.1993. The return is
completely silent on this aspect.
6. Considered the arguments and perused the record.
7. It is found that the petitioner was appointed on 31.07.1993 and soon
thereafter, within one month, the appointment was canceled on 24.08.1993.
The order was cancelled based upon allegation that the order of appointment
is forged and/or obtained by fraud. The petitioner was thereafter reinstated on
03.10.2003. Thus, her reinstatement in the year 2003 has to be treated in
continuation with her initial appointment. Thus, the denial of benefit of
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seniority w.e.f. 24.08.1993 is found to be unsustainable.
8. So far as the petitioner's claim for grant of back wages is concerned,
admittedly, the petitioner has not worked w.e.f. 24.08.1993. Since, she was
involved in a criminal case, she could not put entire blame upon respondents
for her not working on the post. Therefore, benefit of pay and allowance for
the said period is not permissible.
9. It is informed by learned counsel for the petitioner that the petitioner
has retired from service in February, 2023.
10. In view of the Apex Court judgment, passed in the case of Union
of India Vs. Jaipal Singh, reported in (2004)1 SCC 121 held in para 4 as
under:
"4. On a careful consideration of the matter and the materials on
record, including the judgment and orders brought to our notice,
we are of the view that it is well accepted that an order rejecting a
special leave petition at the threshold without detailed reasons
therefor does not constitute any declaration of law by this Court or
constitute a binding precedent. Per contra, the decision relied upon
by the appellant is one on merits and for reasons specifically
recorded therefor it operates as a binding precedent as well. On
going through the same, we are in respectful agreement with the
view taken in Ranchhodji [(1996) 11 SCC 603: 1997 SCC (L&S)
491]. If prosecution, which ultimately resulted in acquittal of the
person concerned was at the behest of or by the department itself,
perhaps different considerations may arise. On the other hand, if as
a citizen the employee or a public servant got involved in a
criminal case and if after initial conviction by the trial court, he
gets acquittal on appeal subsequently, the department cannot in
any manner be found fault with for having kept him out of service,
since the law obliges a person convicted of an offence to be so
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kept out and not to be retained in service. Consequently, the
reasons given in the decision relied upon, for the appellants are
not only convincing but are in consonance with reasonableness as
well. Though exception taken to that part of the order directing
reinstatement cannot be sustained and the respondent has to be
reinstated in service, for the reason that the earlier discharge was
on account of those criminal proceedings and conviction only, the
appellants are well within their rights to deny back wages to the
respondent for the period he was not in service. The appellants
cannot be made liable to pay for the period for which they could
not avail of the services of the respondent. The High Court, in our
view, committed a grave error, in allowing back wages also,
without adverting to all such relevant aspects and considerations.
Consequently, the order of the High Court insofar as it directed
payment of back wages is liable to be and is hereby set aside."
11. In view of the aforesaid, the petitioner is held not entitled to salary
and allowances for the period she was not in service. However, respondents
are directed to count petitioner's service w.e.f. 24.08.1993 for the purposes of
fixation of her retiral dues. She is thus held entitled to get her retiral due
fixed counting her service with effect from 24.08.1993. The respondents an
directed to re-fix petitioner's retiral dues accordingly and pay her the
resultant arrears to her. Let this exercise be completed within a period of
days from the date of production of certified copy of this order.
(ASHISH SHROTI)
JUDGE
bj/-
