Artabandhu Behera vs State Of Odisha
2024 Latest Caselaw 16301 Ori

Orissa High Court

Artabandhu Behera vs State Of Odisha on 6 November, 2024

Author: B.P. Routray

Bench: B.P. Routray

Signature Not Verified
Digitally Signed
Signed by: CHITTA RANJAN BISWAL
Reason: Authentication
Location: Orissa High Court, Cuttack
Date: 12-Nov-2024 14:24:17



                                       IN THE HIGH COURT OF ORISSA AT CUTTACK
                                                  W.P.(C) No. 8596 of 2021
                                   (Under Article 226 and 227 of the Constitution of India)


                            Artabandhu Behera                           ....                 Petitioner

                                                            -versus-

                            State of Odisha, represented through
                            its Special Secretary, Home
                            Department and Others                       ....        Opposite Parties

                           Advocate(s) appeared in this case:-

                               For Petitioner             : Mr. Umakanta Sahoo, Advocate
                               For Opposite Parties       : Mr. G. Tripathy, AGA


                                          CORAM: JUSTICE B.P. ROUTRAY


                                                          JUDGMENT

6th November, 2024 B.P. Routray, J.

1. Heard Mr. U.K. Sahoo, learned counsel for the Petitioner and

Mr. G. Tripathy, learned AGA for State - Opposite Parties.

2. The Petitioner who is serving as Havildar in Government

Railway Police has prayed for release of his salary and other

financial benefits for the period he was dismissed from service on

account of conviction in criminal case.

Signed by: CHITTA RANJAN BISWAL

Location: Orissa High Court, Cuttack Date: 12-Nov-2024 14:24:17

3. On 21st May, 1999 when the Petitioner was posted in Odisha

Motor Vehicle Department and discharging his duty of checking the

vehicles at Link road, Cuttack was found collecting illegal money

from the vehicles and accordingly upon vigilance raid huge amount

of unexplained cash was found from possession of the Petitioner.

Thus a case was registered for commission of offences under

Sections 7 & 13(2) read with Section 13(1) (d) (i) (ii) of the PC Act,

1988. In the trial in TR Case No.204 of 2007/15 of 2001 the

Petitioner was convicted and consequently he was dismissed from

service on 6th December, 2010. The Petitioner then preferred appeal

before the High Court in Criminal Appeal No.455 of 2010 wherein

by judgment dated 17th May, 2019 this court directed for his

acquittal by setting aside the impugned judgment of conviction and

sentence. Pursuant to his acquittal in appeal the Petitioner was

reinstated in service on 19th August, 2019 and discharged his duty as

usual. In the order of reinstatement dated 19th August, 2019 his

period of dismissal / absence from duty from 7th December, 2010 to

19th August, 2019 was treated as extraordinary leave i.e. leave

without pay. Being aggrieved with the same he preferred WP(C)

No.33434 of 2020 and pursuant to order dated 4th December 2020

Signed by: CHITTA RANJAN BISWAL

Location: Orissa High Court, Cuttack Date: 12-Nov-2024 14:24:17

the authorities were directed to consider the representation of the

Petitioner seeking back wages for such period of leave. The

authority then in order dated 23rd February, 2021 under Annexure-7

considered the representation and rejected the prayer of the

Petitioner to release his back wages for the period of absence from

duty.

4. The short question falls for determination here is that, whether

the Petitioner after his dismissal from service, consequent upon his

conviction in the criminal case, would be entitled for salary and

other financial benefits upon his subsequent acquittal by the

Appellate Court?

5. The law is no more res integra on the question and it has been

decided in several decisions of the Hon'ble Supreme Court. The

Supreme Court in the case of Ranchhodji Chaturji Thakore v.

Superintendent Engineer, Gujarat Electricity Board,

Himmatnagar (Gujarat) and Another, (1996) 11 SCC 603 have

held that question of back wages would be considered only if the

respondents have taken action by way of disciplinary proceeding and

the action was found to be unsustainable in law and the Petitioner

Signed by: CHITTA RANJAN BISWAL

Location: Orissa High Court, Cuttack Date: 12-Nov-2024 14:24:17

was unlawfully prevented from discharging the duties. The Supreme

Court have further held that since the Petitioner was involved in a

crime, though being acquitted later, he had disabled himself from

rendering the service on account of conviction and incarceration in

jail and under such circumstances he is not entitled for payment of

back wages.

6. In Krishnakant Raghunath Bibhavenekar Vs. State of

Maharashtra and others, (1997) 3 SCC 636, where the petitioner

was convicted for criminal charges and was put under suspension

but acquitted subsequently, the Supreme Court have held as

follows:-

"4. xxxxxxxxxxx. It is true that when a Government servant is acquitted of offences, he would be entitled to re-instatement. But the question is : whether he would be entitled to all consequential benefits including the pensionary benefits treating the suspension period as duty period, as contended by Shri Ranjit Kumar? The object of sanction of law behind prosecution is to put an end to crime against the society and laws there by intends to restore social order and stability. The purpose of prosecution of a public servant is to maintain discipline is service, integrity, honesty and truthful conduct in performance of public duty or for modulation of his conduct to further the efficiency in public service. The Constitution has given full faith and credit to public acts. Conduct of a public servant has to be

Signed by: CHITTA RANJAN BISWAL

Location: Orissa High Court, Cuttack Date: 12-Nov-2024 14:24:17

an open book; corrupt would be known to everyone. The reputation would gain notoriety. Though legal evidence may be insufficient to bring home the guilt beyond doubt or fool-proof. The act of reinstatement send ripples among the people in the office/locality and sows wrong signals for degeneration of morality, integrity and rightful conduct and efficient performance of public duty. The constitutional animation of public faith and credit given to public acts, would be undermined. Every act or the conduct of a public servant should be to effectuate the public purpose and constitutional objective. Public servant renders himself accountable to the public. The very cause for suspension of the petitioner and taking punitive action against him was his conduct that led to the prosecution of him for the offences under the Indian Penal Code. If the conduct alleged is the foundation for prosecution, though it may end in acquittal on appreciation or lack of sufficient evidence, the question emerges : whether the Government servant prosecuted for commission of defalcation of public funds and fabrication of the records, though culminated into acquittal, is entitled to be reinstated with consequential benefits? In our considered view, this grant of consequential benefits with all back wages etc. cannot be as a matter of course. We think that it would be deleterious to the maintenance of the discipline if a person suspended on valid considerations is given full back wages as a matter of course, on his acquittal. Two courses are open to the disciplinary authority, viz., it may enquire into misconduct unless, the self-same conduct was subject of charge and on trial the acquittal was recorded on a positive finding that the accused did not commit the offence at all; but acquittal is not an benefit of doubt given. Appropriate action may be taken thereon. Even otherwise, the authority may, on reinstatement after following

Signed by: CHITTA RANJAN BISWAL

Location: Orissa High Court, Cuttack Date: 12-Nov-2024 14:24:17

the principle of natural justice, pass appropriate order including treating suspension period as period of not on duty, (and on payment of subsistence allowance etc.) Rules 72(3), 72(5) and 72(7) of the Rules give a discretion to the disciplinary authority. Rule 72 also applies, as the action was taken after the acquittal by which date rule was in force. Therefore, when the suspension period was treated to be a suspension pending the trial and even after acquittal, he was reinstated into service, he would not be entitled to the consequential benefits. As a consequence, he would not be entitled to the benefits of nine increments as stated in Para 6 of the additional affidavit. He is also not entitled to be treated as on duty from the date of suspension till the date of the acquittal for purpose of computation of pensionary benefits etc. The appellant is also not entitled to any other consequential benefits as enumerated in paragraph 5 and 6 of the additional affidavit."

7. Further in Union of India (UOI) and Others v. Jaipal Singh, (2004) 1 SCC 121 in a similar situation, the Supreme Court have held that "If prosecution, which ultimately resulted in acquittal of the person concerned was at the behest or by 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 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

Signed by: CHITTA RANJAN BISWAL

Location: Orissa High Court, Cuttack Date: 12-Nov-2024 14:24:17

are in consonance with reasonableness as well. Though exception taken to that part of the order directing re-instatement cannot be sustained and the respondent has to be re-instated, 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."

8. As stated earlier, in the case at hand the Petitioner was dismissed from service upon his conviction by the Trail Court and subsequently reinstated upon his acquittal by the Appellate Court. The period of dismissal remains from 7th December, 2010 to 19th August, 2019. As per the submission of Mr. Sahu learned counsel for the Petitioner, Rule 91 of Odisha Service Code speaks in his favour that upon his reinstatement after dismissal he is entitled for back wages. But I do not find any support from Rule 91 to favour the submission of Mr. Sahu. Rule 91 reads as under:-

"91.AUTHORITY COMPETENT TO ORDER THE REINSTATEMETN SHALL CONSIDER AND MAKE A SPECIFIC ORDER:

(1) When a Government servant who has been dismissed, removed, compulsorily retired or suspended is reinstated or would have been reinstated but for his retirement on superannuation while under suspension the authority

Signed by: CHITTA RANJAN BISWAL

Location: Orissa High Court, Cuttack Date: 12-Nov-2024 14:24:17

competent to order the reinstatement shall consider and make a specific order:

(a) regarding the pay and allowances to be paid to the Government servant for the period of his absence from duty or for the period of suspension ending with the date of his retirement on superannuation, as the case may be, and

(b) whether or not the said period shall be treated as a period spend on duty.

(2) Where such competent authority hold that the Government servant has been fully exonerated or in the case of suspension, that it was wholly unjustified, the Government servant shall be given the full pay to which he would have been entitled has he not been dismissed, removed, compulsorily retired or suspended, as the case may be, together with any allowances of which he was in receipt to his dismissal, removal or suspension.

(3) (a) In the case of dismissal, removal and compulsory retirement when a Government servant who is not completely exonerated of the charges, is reinstated in service, it shall be open to the competent authority to decide not to allow any pay or allowances to him.

(b) In the case of suspension when a Government servant, not having been exonerated of the charges fully, is reinstated in service, he may be allowed subsistence allowance only for the period of suspension as admissible under rule 90.

(4) In a case falling under Clause (2) the period of absence from duty shall be treated as a period spent on duty for all purposes.

Signed by: CHITTA RANJAN BISWAL

Location: Orissa High Court, Cuttack Date: 12-Nov-2024 14:24:17

(5) In a case falling under Clause (3) the period of absence from duty shall not be treated as a period spent on duty, unless such competent authority specifically directs that it shall be so treated for any specified purpose:

Provided that if the Government servant so desires, such authority may direct that the period of absence from duty shall be converted into leave of any kind due and admissible to the Government servant."

9. When the Petitioner has been reinstated in service pursuant to the order of acquittal passed by the Appellate Court, it was not for the fault of the employer to dismiss him and therefore, the direction of the authority not to pay the financial benefits for his period of absence from service due to dismissal cannot be faulted with. It is true that the order of dismissal of the Petitioner from service was not for the fault of the employer but for the criminal prosecution launched against him resulting his conviction. So in no circumstance, for the principles discussed above, the Petitioner is found entitled for the back wages for the period of his absence from duty due to dismissal. Accordingly no merit is seen in the contentions of the Petitioner and the writ petition is dismissed.

(B.P. Routray) Judge

C.R. Biswal, A.R-Cum-Sr. Secretary / M..K. Panda, P.A.