Chattisgarh High Court
Smt.Bismilla Bee vs State Of Chhattisgarh And Anr on 5 October, 2023
Author: Rajani Dubey
Bench: Rajani Dubey
1
AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Order Reserved on : 08/08/2023
Order passed on : 05/10/2023
WPS No. 445 of 2015
Smt. Bismilla Bee wife of Late Shri Akbar Ali, aged about 41
years, resident of Shahid Rajeev Pandey Nagar, Dr. Rajendra
Prasad Ward, New Rajendra Nagar, Raipur, District Raipur (CG)
---- Petitioner
Versus
1. State of Chhattisgarh, through the Secretary, Health and Family
Welfare Department, Mahanadi Bhawan, Mantralaya, New
Raipur (CG)
2. The Dean, Pt. Jawahar Lal Nehru Smriti Mahavidyalaya, Raipur
(CG)
---- Respondents
For Petitioner : Mr. Kanwaljeet Singh, Advocate on behalf of Ms. Reena Singh, Advocate For State : Ms. Beenu Sharma, Panel Lawyer Hon'ble Smt. Justice Rajani Dubey CAV ORDER This petition under Article 226 of the Constitution of India has been filed against the order dated 3.2.2014 (Annexure P/1) whereby respondent No.2 has informed the petitioner that she would not be entitled for any salary for a period from 17.4.2001 to 19.2.2012 on the basis of principles of No Work, No Pay.
02. Brief facts of the case are that the petitioner was appointed on the post of Assistant on compassionate ground in the office of Dean, Pandit Jawharlal Nehru Smriti Mahavidyalaya. During her service 2 tenure, she was arrested on 16.4.2001 for the offence punishable under Sections 147, 148, 149, 307 and 302 of IPC by the Police Station-Ganj, Raipour. On 5.5.2001 she was terminated from service on the ground that she is detained in Central Jail, Raipur for the above offences. After completion of investigation, charge sheet was filed and after conclusion of trial, the learned trial Court by judgment dated 28.11.2002 passed in ST No.279/2001 convicted her under Sections 324, 302 read with 34 of IPC and sentenced her to undergo RI for six months and life imprisonment apart from fine sentence. However, on appeal being preferred by the petitioner before this Court i.e. CRA No.235/2003, this Court vide judgment dated 22.7.2008 allowed the appeal and she was acquitted of all the charges.
The petitioner thereafter filed an application on 10.12.2008 before respondent No.2 for joining her duties on the post from which she was terminated. Despite several representations filed by the petitioner, respondent No.2 gave her joining only on 20.3.2012 without giving her arrears of salary. After joining the post of Assistant, she again filed representations before the authorities concerned, but without considering her case in its true letter and spirit, the respondent authorities came to the conclusion that she would not be entitled for salary from 17.4.2001 to 19.2.2012 on the basis of principles of No Work, No Pay. Hence this petition filed by the petitioner for the following reliefs:
"I. This Hon'ble Court may kindly be pleased to set-aside/quash the impugned order dated 03.02.2014 passed by respondent no.2 and further be pleased to direct the respondent 3 authorities to grant arrears of salary from 17.04.2001 to 19.02.2012 to the petitioner.
II. Any other relief/order which may deem fit and just in the facts and circumstances of the case including award of the costs of the petition may be given."
03. Learned counsel for the petitioner submits that the impugned order dated 3.2.2014 is bad in law, perverse, erroneous, unauthorized, arbitrary and discriminatory, therefore, it is liable to be set aside. The principles of No Work, No Pay will not be applicable where the employee was ready and willing to work. In the present case also, immediately after getting acquittal from the High Court, the petitioner filed representation before the authorities concerned for giving her joining but they were sitting tight over the matter for four years and only on 19.3.2012 allowed her to join her duties. Therefore, in such circumstances, the principles of No Work, No Pay would not be applicable. Hence the impugned order is liable to be set aside and the respondent authorities be directed to grant arrears of salary to the petitioner for a period from 17.4.2001 to 19.2.2012.
Reliance has been placed on the decision of the Hon'ble Supreme Court in the matter of Raj Narain Vs. UOI and others, (2019) 5 SCC 809.
04. On the other hand, learned counsel for the respondent/State strongly opposes the prayer of the petitioner and submits that the petitioner was arrested by the police and thereafter, she was convicted and sentenced by the trial Court, however, after her acquittal by the 4 High Court, considering the representation made by her, she was given joining on her previous post on 19.3.2012. Therefore, she is not entitled for any salary from 17.4.2001 to 19.2.2012 and the present petition being devoid of any merits is liable to the dismissed.
05. Heard learned counsel for the parties and perused the material available on record.
06. It is not in dispute that the petitioner was acquitted by the High Court vide judgment dated 22.7.2008 (Annexure P/3) of all the charges. Thereafter, on 10.12.2008 she submitted a representation before respondent No. 2 for giving her joining but she was allowed to join her duties only on 20.3.2012.
07. Hon'ble Supreme Court in the matter of Raj Narain (supra) held in paras 6 & 7 as under:
"6. The decision of Ranchhodji Chaturji Thakore, (1996) 11 SCC 603 was followed by this Court in Union of India and Others v. Jaipal Singh, (2004) 1 SCC 121 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 endeavored 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 and Others v. Jaipal Singh (supra) 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 5 initiation of the criminal proceedings by the department vis-
a-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.
7. The point that remains to be considered is whether the Appellant is entitled to payment of full wages between 1979 and 1987. The Appellant was placed under suspension on 23.10.1979 and his suspension was revoked on 21.10.1987. An interesting development took place during the interregnum by which the disciplinary proceedings were dropped on 21.03.1983. It is clear from the record that the Appellant was the one who was seeking postponement of the departmental inquiry in view of the pendency of criminal case. The order of suspension was in contemplation of disciplinary proceedings. By virtue of the disciplinary proceedings being dropped, the Appellant becomes entitled to claim full salary for the period from the date of his suspension till the date of closure of the departmental inquiry. Thereafter, the Respondents took four years to reinstate him by revoking his suspension. The order of suspension dated 23.10.1979 came to an end on 21.03.1983 which is the date on which disciplinary proceedings were dropped. The Appellant ought to have been reinstated immediately thereafter unless a fresh order was passed, placing him under suspension during the pendency of the criminal trial which did not happen. Ultimately, the Appellant was reinstated by an order dated 21.10.1987 by revocation of the order of suspension. Though, technically, the learned Additional Solicitor General is right in submitting that the impugned judgment does not even refer to the I.A., we are not inclined to remit the matter to the High Court at this stage for fresh consideration of this point. We hold that the Appellant is entitled for full wages from 23.10.1979 to 21.10.1987 after adjustment of the amounts already paid towards subsistence allowance."
08. The petitioner demanded her salary from 17.4.2001 but looking to the facts and circumstances of the case and considering the acquittal of the petitioner (Annexure P/3), in the opinion of this court, she is entitled for salary only after her acquittal when she made representation (Annexure P/4) for giving her joining. 6
09. Thus, in the totality of facts and circumstances of the case and the aforesaid order of the Hon'ble Supreme Court, the petition is allowed in part. The impugned order dated 3.2.2014 (Annexure P/1) is hereby set aside. The respondent authorities are directed to give arrears of salary to the petitioner from 10.12.2008 to 19.2.2012 with all consequential benefits. The above exercise shall be completed within a period of three months from the date of receipt/production of copy of this order.
Sd/ (Rajani Dubey) Judge Khan