Punjab-Haryana High Court
Balwant Singh vs State Of Hry. & Ors on 25 March, 2025
Neutral Citation No:=2025:PHHC:040456
CWP-6913-2006 (O&M).
CWP-6914-2006 (O&M). -1-
THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH.
551
Reserved on: 28.02.2025.
Date of Decision: 25.03.2025.
(1) CWP-6913-2006 (O&M).
BALWANT SINGH
... Petitioner
Versus
STATE OF HARYANA AND OTHERS
... Respondent(s)
(2) CWP-6914-2006 (O&M).
SUCHA SINGH
... Petitioner
Versus
STATE OF HARYANA AND OTHERS
... Respondent(s)
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CWP-6913-2006 (O&M).
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CORAM: HON'BLE MR. JUSTICE VINOD S. BHARDWAJ.
Present: Mr. R.K. Malik, Sr. Advocate, with
Mr. Kartikey Chaudhary, Advocate,
for the petitioner(s) in both the petitions.
Mr. K.K. Chahal, Addl. A.G. Haryana.
VINOD S. BHARDWAJ, J. (ORAL)
Involving a question as to whether an employee is entitled to all
service benefits consequent upon his acquittal in criminal proceedings that
had no connect to any official duties, both these petitions have been filed by
the petitioners who were employees with the same Department and were co-
accused in the FIR but stand acquitted. The facts, for ready reference are
being culled out from CWP-6913-2006 titled as 'Balwant Singh Vs. State of
Haryana and others.'
2 The said petition has been filed seeking quashing of the
condition imposed vide order dated 28.04.2006 to the extent the petitioner
has been deprived backwages for the period during which he remained out of
service. A prayer has also been made that the respondents be directed to pay
full salary and allowances for the period he remained out of job.
FACTS
3 The petitioner was appointed as a Conductor in the respondent
department in 1985. He was convicted for offences under Sections 498-A and
304-B IPC vide judgment dated 29.04.1991 and was subsequently dismissed
from service on 22.08.1991 on the basis of this conviction.
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4 The petitioner challenged his dismissal in CWP No. 3119 of
1992 on the ground that the General Manager was not the competent authority
to pass such an order. The writ petition was allowed on 03.11.1992, leading
to the petitioner's reinstatement in compliance with the court's order.
5 However, he was again suspended on 05.01.1993, and
eventually the Transport Commissioner dismissed him from service on
15.02.1993, reiterating that the dismissal was based solely on his conviction.
6 The petitioner preferred a criminal appeal against his conviction
which was allowed by the Hon'ble High Court vide judgment dated
17.11.2005, acquitting him of all charges.
7 Following his acquittal, the petitioner submitted a representation
on 13.02.2006, seeking reinstatement with continuity of service and full back
wages but no action was taken. A final demand notice was hence served,
indicating that failure to reinstate him by 31.03.2006 would compel him to
seek legal recourse.
8 Consequently, the petitioner filed CWP No. 5396 of 2006 titled
as 'Balwant Singh v. State of Haryana' in which a notice of motion was
issued for 01.05.2006. The respondents however reinstated him on
28.04.2006 but imposed a condition denying back wages for the period he
remained out of service. Hence, the present petition.
ARGUMENTS OF THE PETITIONER
9 The counsel for the petitioner contends that the petitioner's
dismissal from service was premised solely on his conviction under Sections
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498-A and 304-B of the Indian Penal Code. However, upon his acquittal by
the Hon'ble High Court, the conviction order passed by the Learned Sessions
Judge stood set aside. Once the foundation of the dismissal ceased to exist,
the petitioner was legally entitled to reinstatement with all consequential
benefits. Any action to the contrary would be unsustainable in law, as it
would amount to penalizing an individual despite the judicial annulment of
the very basis of the dismissal.
10 Further, the counsel for the petitioner places reliance on Rule
7.5, Volume I, Part I of the Punjab Civil Service Rules, which explicitly
provides that an employee placed under suspension due to criminal
proceedings is entitled to full pay and allowances upon acquittal. He contends
that the said provision embodies the principle that an employee should not
suffer financial prejudice due to a criminal charge that ultimately does not
stand judicial scrutiny. It is argued that the respondents 'decision to deny the
petitioner back wages despite the clear mandate of Rule 7.5 is legally
untenable and contrary to established service jurisprudence.
11 Further, the counsel submits that it is a well-settled principle of
law that before determining the manner in which the period of suspension
and dismissal is to be treated, an employee must be given an opportunity of
hearing. This requirement stems from the fundamental principles of natural
justice, which mandate that no adverse decision affecting the rights of an
individual should be taken without affording them an opportunity to present
their case. In the present case, the respondents failed to issue a show-cause
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notice or provide the petitioner with any opportunity to be heard before
passing the impugned order. Such procedural impropriety vitiates the order,
rendering it arbitrary and liable to be set aside.
12 He also submits that the record reflects that despite the
petitioner's acquittal on 17.11.2005, his reinstatement was unduly delayed
until 28.04.2006. This delay, being unexplained and arbitrary, has resulted in
the wrongful deprivation of the petitioner's salary for the intervening period.
The respondents, having failed to justify such delay, cannot be permitted to
deny the petitioner his lawful entitlement for the period during which he was
wrongfully kept out of service.
13 The counsel places reliance on a Division Bench judgment of
this Court in Shashi Kumar v. UHBVN & Another reported as 2005 (1) RSJ
718 and contends that in light of the precedent set by the Hon'ble Division
bench, it is evident that an employee who has been acquitted by a criminal
court is entitled to reinstatement with all consequential benefits. The
petitioner, being similarly situated, is entitled to the same relief. Accordingly,
the principles laid down in the said judgment must be applied to the present
case, ensuring that the petitioner is granted reinstatement along with all
attendant benefits.
ARGUMENTS OF THE RESPONDENTS
14 The learned counsel for the respondents submits that the
petitioner was implicated in a criminal case registered under Sections 498-A
and 304-B of the Indian Penal Code (IPC) on the basis of a complaint filed
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by Baj Singh, the brother of the deceased Baljit Kaur. The said FIR, bearing
No. 34 dated 18.05.1990, was lodged at Police Station G.R.P., Kurukshetra.
At the time of registration of the case, the petitioner was employed as a
Conductor with Haryana Roadways, Kurukshetra.
15 The petitioner, along with his co-accused Suchha Singh, was
tried before the Learned Additional Sessions Judge, Kurukshetra. Upon
conclusion of the trial, the petitioner was convicted vide order dated
29.04.1991 and sentenced to rigorous imprisonment of two years with a fine
of Rs. 1,000 under Section 498-A IPC and rigorous imprisonment of seven
years under Section 304-B IPC. In light of the conviction, the petitioner's
services were terminated by order No. 2914/ECC dated 22.08.1991, passed
by Respondent No. 3. The other factual aspects about the first round of
litigation and the subsequent acquittal by the High Court in criminal
proceedings is not disputed.
16 Following his acquittal, he was reinstated into service with
immediate effect. However, the reinstatement order dated 28.04.2006
(Annexure P-3) specifically stated that the petitioner would not be entitled to
back wages for the period he remained out of service due to his conviction.
17 The counsel for the respondents contends that the Transport
Department had no role in the initiation of criminal proceedings against the
petitioner, as the case arose out of a private complaint. The conviction of the
petitioner was the sole reason for his dismissal, and as a result, the department
was unable to avail his services during the intervening period. In such
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circumstances, the respondents cannot be held liable for the payment of back
wages on the principle of 'no work no pay.'
18 The respondents place strong reliance on the judgment of the
Hon'ble Supreme Court in Union of India & Others v. Jai Pal Singh, Civil
Appeal No. 8565 of 2003, reported as 2004 (2) S.L.R. (SC) 251, wherein it
was held that back wages are not an automatic entitlement upon acquittal. It
is argued that unless an acquittal is based on a finding of false implication or
malicious prosecution, the employer is not obligated to compensate an
employee for the period during which they were lawfully dismissed. The
respondents emphasize that the petitioner's acquittal does not, in itself, entitle
him to back wages, particularly since his dismissal was the direct result of a
judicially pronounced conviction.
19 The respondents further contend that the principles of financial
accountability dictate that salary must be paid only for work performed. Since
the petitioner did not render service to the department for the period he
remained dismissed, granting him back wages would amount to an unjustified
burden on the public exchequer. It is thus submitted that the petitioner's claim
for back wages is devoid of merit and should be rejected.
20 Further, the counsel contends that the petitioner is also not
entitled to back wages or any other benefits for the period he remained out of
service even in view of the applicable service rules. The claim is devoid of
merits and the petition deserves to be dismissed.
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21 He further submits that as per Rule 7.3(5) of the Punjab Civil
Services Rules, Volume-I, Part-I, the period of absence from duty cannot
be treated as a period spent on duty unless specifically directed by the
competent authority. The said rule further provides that, at the discretion of
the authority, such absence may be converted into leave of any kind that is
due and admissible. In the present case, no such direction was issued by the
competent authority to treat the petitioner's absence as duty, thereby
disentitling him from claiming any salary or allowances for the relevant
period.
22 It is stated that Note 8 of Rule 7.3(5) explicitly states that if no
order is passed treating the period of absence as duty, it shall be treated as
"non-duty." This further reinforces the position that the petitioner cannot
claim back wages for the period during which he was out of service following
his conviction.
23 He emphatically submits that Rule 4.9 of the Punjab Civil
Services Rules, Volume-I, Part-I, stipulates that while all duty in a time-
scale post counts towards increments, periods that do not qualify for
increment shall be added to the normal date of the next increment. Since the
petitioner's absence has not been recognized as duty, he cannot claim any
increments or salary benefits for the said period. The respondent thus submits
that the petitioner has no legal right to claim back wages or other service-
related benefits for the period he remained out of employment. Accordingly,
the present writ petition is devoid of merit and liable to be dismissed.
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24 No other arguments have been raised nor any other judgment has
been cited on behalf of the counsel appearing for the parties.
25 I have heard the arguments of the parties and have also gone
through the documents appended with the present petition with their able
assistance.
CONSIDERATION
26 While it may be true that the prolonged pendency of the trial or
the criminal appeal cannot be attributed to the petitioner's actions or
omissions, the fact remains that he did not render any service during the
period from 22.08.1991 to 13.12.1992 (date he rejoined duty, order of
reinstatement was passed on 07.12.1992) and again from 05.01.1993 to
28.04.2006 (date of order of reinstatement). His suspension was imposed
lawfully and has not been challenged in the present petition. Furthermore, the
validity of his dismissal based on the conviction and sentence dated
29.04.1991 has not been challenged. It is undisputed that his termination was
a consequence of his conviction in a criminal case involving serious
misconduct. Upon his subsequent acquittal, he became entitled to
reinstatement, and he has been granted pensionary benefits. The period of
suspension has also been accounted for in the calculation of his pension, and
continuity of service has not been denied. The only remaining issue for
determination, as previously noted, is whether he should be awarded back
wages for the period in question.
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27 Before adverting to the rival contentions and the ratio decidendi
culled out in the aforementioned judgments, it would be apt to extract
relevant Rules, ibid, as under: -
"Rule 4.9 of Punjab Civil Services Rules vol. 1, Part-I provides
as under:-
"The following provisions prescribe the conditions on
which service counts for increments in a time-scale-
(a) All duty in a post on a time-scale counts for increment
in that time-scale:
Provided that, for the purpose of arriving at the date of
the next increment in that time-scale, the total of all such periods
as do not count for increment in that time scale shall be added
to the normal date of increment".
xxx xxx xxx
Rule 7.3 (5) of Punjab C.S.R. Vol.-1, Part-1. Provides as
under:
"In a case falling under sub-rule (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 employee 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 employee."
xxx xxx xxx
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Note 8 provides as under
If no order is passed under sub rule 5 of this rule directing
that the period of absence be treated as duty for any specified
purpose, the period of absence should be treated as "non duty".
In such events the past service ( i.e. service rendered being
dismissed removal, compulsory retirement or suspension) will
not be forfeited.
xxx xxx xxx
Rule 7.5 : An employee of Government against whom
proceedings have been taken either for his arrest for debt or on
a criminal charge or who is detained under any law providing
for preventive detention should be considered as under
suspension for any periods during which he is detained in
custody or is undergoing imprisonment, and not allowed to draw
any pay and allowances ( other than any subsistence allowance
that may be granted in accordance with the principles laid down
in rule 7.2) for such periods until the final termination of the
proceedings taken against him or until he is released from
detention and allowed to rejoin duty, as the case may be. An
adjustment of his allowances for such periods should thereafter
be made according to the circumstances of the case, the full
amount being given only in the event of the officer being
acquitted of blame or (if the proceedings taken against him were
for his arrest for debt), of its being proved that the officer's
liability arose from circumstances beyond his control or the
detention being held by the competent authority to be
unjustified."
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28 Rule 7.5 contemplates situations where an employee is subjected
to proceedings that may result in suspension and loss of pay, pending final
determination. While the rule explicitly mentions arrest for debt, criminal
charges, or preventive detention, the term proceedings must be interpreted
broadly to mean departmental proceedings. Departmental proceedings are
quasi-judicial in nature and can lead to penalties, including dismissal or
suspension, akin to criminal charges affecting employment status. The
underlying rationale of Rule 7.5 is to regulate the financial entitlements of an
employee facing disciplinary scrutiny. Therefore, if departmental
proceedings culminate in exoneration or a finding that the suspension was
unjustified, the employee should be entitled to full salary and allowances for
the period of suspension, just as in cases of acquittal in criminal proceedings.
29 There is no hard and fast rule governing the grant of back wages;
each case must be assessed based on its specific facts and circumstances. It
is well-established in law that an acquittal in a criminal case does not
automatically absolve an individual of the charges for service-related
purposes. The employer retains the authority to initiate departmental
proceedings independently.
30 In the case at hand, departmental proceedings were never
initiated against the petitioner. The petitioner faced a Sessions trial and was
subsequently acquitted. While this acquittal may be considered honorable in
a broader societal context, it does not necessarily qualify as an honorable
acquittal under service law. The petitioner's suspension was an automatic
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consequence of his arrest following the registration of a criminal case, rather
than a decision taken by the employer subsequent to any departmental
proceedings initiated on account of any misconduct in the course of
employment.
31 Hon'ble Supreme Court in the case of Ranchhodji Chaturji
Thakore v. Gujarat Electricity Board reported as (1996) 11 SCC 603, has
examined the issue regarding the entitlement of back wages for an employee
kept out of service due to pending criminal proceedings. In that case, the
petitioner, who was accused under Section 302 IPC, contended that he was
entitled to full back wages upon his acquittal by the criminal court. However,
this Court rejected the claim, clarifying that back wages are typically granted
in cases where termination follows a departmental inquiry, and the dismissal
is subsequently set aside by a court of law. The rationale behind this
distinction lies in the nature of the proceedings: while departmental inquiries
are employer-driven and concern misconduct in service, criminal
proceedings arise from an individual's alleged violation of penal laws, which
may result in incarceration. The Court emphasized that an employee facing
criminal charges, particularly one undergoing imprisonment, effectively
renders himself incapable of performing his duties, thereby preventing the
employer from utilizing his services. In such circumstances, the employer
cannot be held liable for non-payment of salary for the period of absence.
Furthermore, even if the employee is later acquitted by an appellate court,
such acquittal does not automatically entitle him to back wages, as his
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inability to work was not due to any wrongful act on the part of the employer.
This distinction underscores the principle that acquittal in a criminal case
does not necessarily translate to an automatic right to reinstatement with full
benefits, unless a wrongful termination pursuant to a departmental
proceeding is also established. The operative part of the said judgment is
extracted as follows: -
"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."
(Emphasis supplied)
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32 The petitioner's inability to render service during his period of
police remand and judicial custody resulted from his own actions and not
from any act or decision of the employer. Since the employer was deprived
of the petitioner's services during this period while still being responsible for
salary payments, there exists no legal obligation on the employer to
compensate him for his absence. Consequently, the Corporation cannot be
held liable to pay the petitioner full salary for the period of his suspension.
33 As far as the prayer of the petitioner regarding payment of full
salary and allowances for the period he remained out of job is concerned,
Hon'ble Supreme Court in J.K. Synthetics Ltd. v. K.P. Agrawal reported as
(2007) 2 SCC 433 examined whether a delinquent employee is entitled to
claim continuity of service and all consequential benefits in every instance of
reinstatement. The Court provided clarity on the conditions under which such
benefits may be granted, distinguishing between different scenarios of
reinstatement based on the nature of the termination and the circumstances
leading to it. The operative part are extracted hereinunder: -
"17. There is also a misconception that whenever reinstatement
is directed, "continuity of service" and "consequential benefits"
should follow, as a matter of course. The disastrous effect of
granting several promotions as a "consequential benefit" to a
person who has not worked for 10 to 15 years and who does not
have the benefit of necessary experience for discharging the
higher duties and functions of promotional posts, is seldom
visualised while granting consequential benefits automatically.
Whenever courts or tribunals direct reinstatement, they should
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apply their judicial mind to the facts and circumstances to
decide whether "continuity of service" and/or "consequential
benefits" should also be directed. We may in this behalf refer to
the decisions of this Court in A.P. SRTC v. S. Narsagoud [A.P.
SRTC v. S. Narsagoud, (2003) 2 SCC 212 : 2003] , A.P. SRTC
v. Abdul Kareem [A.P. SRTC v. Abdul Kareem, (2005) 6 SCC
36] and Rajasthan SRTC v. Shyam Bihari Lal Gupta [Rajasthan
SRTC v. Shyam Bihari Lal Gupta, (2005) 7 SCC 406] ."
34 Upon a thorough examination of the matter, along with the
materials on record, including the judgments and orders cited before this
court, I am of the considered opinion that well-established legal principles
govern the issue at hand. If the prosecution, which ultimately culminated in
the acquittal of the concerned individual, was initiated at the behest of or
directly by the department, a different legal and equitable consideration might
apply. However, when a public servant or an employee, in their capacity as a
private citizen, becomes embroiled in a criminal case--wherein they face an
initial conviction by the trial court but later secure an acquittal on appeal--
the department cannot be held responsible for keeping such an individual out
of service. This is because, as per established legal norms, a person convicted
of an offense is mandated to be removed from service and cannot continue in
employment.
35 In Krishnakant Raghunath Bibhavnekar v. State of
Maharashtra reported as (1997) 3 SCC 636, the Supreme Court explained
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the right of an employee to claim backwages, after reinstatement, upon being
acquitted, in the following manner:
"If the conduct alleged is the foundation for prosecution, though
it may end an 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 consideration is given full back
wages as a matter of course on his acquittal."
36 Accordingly, the contentions put forth by the respondents are not
only legally sound but also align with the principles of fairness and
reasonableness. The respondents are well within their rights to deny back
wages for the period during which the employee was not actively serving.
The employer cannot be burdened with the financial liability of compensating
an individual for a duration in which their services were unavailable due to
legal incapacitation. In this regard, I find myself in complete agreement with
the position articulated in Ranchhodji Chaturji Thakore v. Gujarat
Electricity Board, (1996) 11 SCC 603.
37 In view of the aforesaid judicial pronouncements and the reasons
mentioned above, the petitioner(s) is held entitled at best for back wages only
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w.e.f. the date he submitted an application for re-instatement after acquittal
till the date of his actual reinstatement.
38 Both the writ petitions stand disposed of accordingly.
39 A photocopy of the order be placed on the connected file(s).
March 25, 2025. (VINOD S. BHARDWAJ)
raj arora JUDGE
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
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