Gujarat High Court
Pachchim Gujarat Vij Co. Ltd vs R B Patel on 13 October, 2023
Author: Sunita Agarwal
Bench: Sunita Agarwal, N.V.Anjaria
NEUTRAL CITATION
C/LPA/15/2017 CAV JUDGMENT DATED: 13/10/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 15 of 2017
In R/SPECIAL CIVIL APPLICATION NO. 4098 of 2008
With
CIVIL APPLICATION (FOR VACATING INTERIM RELIEF) NO. 1 of 2023
In R/LETTERS PATENT APPEAL NO. 15 of 2017
With
CIVIL APPLICATION (DIRECTION) NO. 2 of 2023
In R/LETTERS PATENT APPEAL NO. 15 of 2017
With
R/LETTERS PATENT APPEAL NO. 710 of 2019
In R/SPECIAL CIVIL APPLICATION NO. 2934 of 2008
With
R/LETTERS PATENT APPEAL NO. 162 of 2017
In R/SPECIAL CIVIL APPLICATION NO. 2934 of 2008
FOR APPROVAL AND SIGNATURE:
HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE SUNITA AGARWAL
and
HONOURABLE MR. JUSTICE N.V.ANJARIA
==============================================================
1 Whether Reporters of Local Papers may be No allowed to see the judgment ?
2 To be referred to the Reporter or not ? Yes 3 Whether their Lordships wish to see the fair No copy of the judgment ?
4 Whether this case involves a substantial No question of law as to the interpretation of the Constitution of India or any order made thereunder ?
============================================================== PACHCHIM GUJARAT VIJ CO. LTD. & 3 other(s) Versus R B PATEL ============================================================== Appearance:
MR DIPAK R DAVE(1232) for the Appellant(s) No. 1,2,3,4 PARTY IN PERSON(5000) for the Respondent(s) No. 1 MR ANVESH VYAS for the Respondent in LPA No.162/2017 & appellant in LPA No.710/2019 ========================================================== Page 1 of 54 Downloaded on : Fri Oct 13 20:51:12 IST 2023 NEUTRAL CITATION C/LPA/15/2017 CAV JUDGMENT DATED: 13/10/2023 undefined CORAM:HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE SUNITA AGARWAL and HONOURABLE MR. JUSTICE N.V.ANJARIA Date : 13/10/2023 COMMON CAV JUDGMENT (PER : HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE SUNITA AGARWAL)
1. These three connected Letters Patent Appeals are arising out of the judgment and order dated 03.08.2016 passed in two writ petitions, namely, Special Civil Application No.2934 of 2008 and Special Civil Application No.4098 of 2008. The writ petitioner therein, namely, Mr.R.B.Patel, impleaded as respondent No.1 in the Letters Patent Appeal No.15 of 2017 is a Party-in-person; whereas another writ petitioner, namely, Mr.Babubhai Ishwarlal Patel, impleaded as the respondent in the Letters Patent Appeal No.162 of 2017, is represented through his counsel, namely, Mr.Anvesh Vyas.
2. Letters Patent Appeal No.710 of 2019 has been filed by Mr.Babubhai Ishwarlal Patel against an order dated 01.09.2016, whereby the Note for Speaking to Minutes filed by the said writ petitioner in Special Civil Application No.4098 of 2008 before the learned Page 2 of 54 Downloaded on : Fri Oct 13 20:51:12 IST 2023 NEUTRAL CITATION C/LPA/15/2017 CAV JUDGMENT DATED: 13/10/2023 undefined Single Judge was disposed of as not pressed, on the statement made by his counsel that he would like to prefer a Miscellaneous Civil Application for review or necessary clarification. No review application or clarification application has been moved by the said writ petitioner before the learned Single Judge nor any such fact or order has been brought before us.
Only prayer made in the Letters Patent Appeal No.710 of 2019 is to quash the order dated 01.09.2016 passed by the learned Single Judge in disposing of the Note for Speaking to Minutes, which was moved with the prayer to make corrections in the judgment and order dated 03.08.2016.
3. It may be noted, at the outset, that while challenging the order dated 01.09.2016, of disposal of the Note for Speaking to Minutes, seeking corrections in the judgment and order dated 03.08.2016, the said order of disposal of the main writ petition has not been challenged by the writ petitioner, namely, Mr.Babubhai Ishwarlal Patel. Various grounds raised in the Letters Patent Appeal Page 3 of 54 Downloaded on : Fri Oct 13 20:51:12 IST 2023 NEUTRAL CITATION C/LPA/15/2017 CAV JUDGMENT DATED: 13/10/2023 undefined No.710 of 2019 are that the learned Single Judge has committed an illegality in granting only 50% of back- wages to the writ petitioner instead of full back- wages, that too without any interest. The ground in the appeal is stated that the order impugned dated 01.09.2016 is bad in the eye of law, inasmuch as, the learned Single Judge has failed to appreciate the facts of the case in granting only partial relief of providing back-wages, when the writ petitioner had been fully exonerated on acquittal by the Competent Court of law. All the benefits consequent to the acquittal are liable to be paid to the writ petitioner and he is entitled for full back-wages.
4. Dealing with the grounds taken in Letters Patent Appeal No.710 of 2019, to assail the order of disposal of the Note for Speaking to Minutes, suffice it to note that the judgment and order dated 03.08.2016, which decides the claim of the petitioner in the Special Civil Application No.2934 of 2008 has not been challenged. Even otherwise, the Note for Speaking to Minutes was not pressed by the learned Page 4 of 54 Downloaded on : Fri Oct 13 20:51:12 IST 2023 NEUTRAL CITATION C/LPA/15/2017 CAV JUDGMENT DATED: 13/10/2023 undefined counsel appearing for the writ petitioner, with the plea that he would like to prefer an application for review or necessary clarification. We may further note, at this juncture, that a Note for Speaking to Minutes can be moved only for seeking correction of typographical mistakes and by such move, the review or clarification on the merits of the order cannot be sought.
5. For the aforesaid, we do not find any merit in the Letters Patent Appeal No.710 of 2019, filed by one of the respondents herein, namely, Mr.Babubhai Ishwarlal Patel, with a view to assail the decision of the learned Single Judge in granting 50% of the back-wages to him for the period for which he did not remain on duty.
6. Proceeding further, we are left with two Letters Patent, namely, L.P.A. No.15 of 2017 and L.P.A. No.162 of 2017, which have been filed by the department, namely, Paschim Gujarat Vij Company Limited and others, seeking to challenge the order Page 5 of 54 Downloaded on : Fri Oct 13 20:51:12 IST 2023 NEUTRAL CITATION C/LPA/15/2017 CAV JUDGMENT DATED: 13/10/2023 undefined passed by the learned Single Judge granting relief to the above-noted two writ petitioners in the following manner :-
"59. The last question I need to answer is as regards the final relief. I have already stated above that so far as Shri R.B. Patel is concerned, the relief prayed for by him deserves to be granted. Thus, the Special Civil Application No.4098 of 2008 is allowed. The impugned orders at Annexures: "E" and "H"
are hereby ordered to be quashed. It is declared that the writ applicant is entitled to all the consequential benefits including the full back wages. All the benefits, which are otherwise admissible, shall be calculated and paid to the writ applicants within a period of two months from the date of the receipt of this order. So far as the other reliefs are concerned, it appears that Shri R.B. Patel was also promoted from the due date.
60. So far as the writ application being the Special Application No.2934 of 2008 is concerned, the same is allowed in part. Having regard to the overall facts of the case, I deem fit to order that 50% of the back wages and other consequential benefits be paid to the writ applicant within a period of two months from the date of the receipt of this order. So far as the other relief is concerned, the writ applicant was promoted as the 'Superintendent' on 9th March 2011. He was also given the benefit of the higher grade of the 'Superintendent of Accounts' with effect from 22nd January 2008."
7. The challenge, thus, is to the order passed by the learned Single Judge to grant full back-wages and Page 6 of 54 Downloaded on : Fri Oct 13 20:51:12 IST 2023 NEUTRAL CITATION C/LPA/15/2017 CAV JUDGMENT DATED: 13/10/2023 undefined all consequential benefits to the writ petitioner, namely Mr.R.B.Patel in Special Civil Application No.4098 of 2008 and 50% of back-wages with all consequential benefits to the writ petitioner, namely Mr.Babubhai Ishwarlal Patel in Special Civil Application No.2934 of 2008.
8. The moot question before us is as to whether the writ petitioners are entitled for back-wages at all, for the period from the date of dismissal of their services till the date of reinstatement, on their acquittal by the Criminal Court. While granting the above-noted reliefs, the learned Single Judge has noted that on being acquitted by the High Court in Criminal Appeal Nos.711 of 1991 and 722 of 1991, both the writ petitioners were reinstated in service, but no back-wages, increments or any consequential benefits were granted to them.
9. Insofar as the acquittal of the writ petitioner, namely Mr.Babubhai Ishwarlal Patel, it was made by the High Court by giving the benefit of doubt. Whereas the acquittal of the writ petitioner, Page 7 of 54 Downloaded on : Fri Oct 13 20:51:12 IST 2023 NEUTRAL CITATION C/LPA/15/2017 CAV JUDGMENT DATED: 13/10/2023 undefined namely Shri R.B.Patel was a clean acquittal. While addressing the reliefs prayed by the writ petitioners for grant of full back-wages with all consequential benefits, the learned Single Judge has proceeded to consider the Regulation No.241 of the Service Regulations of the Gujarat Electricity Board, 1995, as also the Circulars issued in exercise of the powers conferred upon it by Section 79(c) of the Electricity (Supply) Act, 1948, which were relied by the learned counsel for the petitioners therein to claim full back-wages and allowances on acquittal by a Court of law. Reliance was also placed on G.E.B.'s Circular No.ENT/III/DA/10802 dated 18.09.1964 and the decisions of the Apex Court in Jaipur Vidyut Vitran Nigam Limited and others vs. Nathu Ram - AIR 2010 SC 19 and Ramsinhji Viraji Rathod vs. State of Gujarat - 1971 SLR 743, therein.
10. The learned counsel appearing for the department - appellants herein, however, argued therein that an employee having involved himself in a criminal case though later on acquitted could be said Page 8 of 54 Downloaded on : Fri Oct 13 20:51:12 IST 2023 NEUTRAL CITATION C/LPA/15/2017 CAV JUDGMENT DATED: 13/10/2023 undefined to have disabled himself from rendering the services on account of conviction and incarceration in jail. In such circumstances, such an employee is not entitled to the payment of back-wages. The contention before the writ Court was that the question of grant of back-wages has to be determined on the facts of a particular case. The learned Single Judge while considering the said arguments has relied upon the decision of the Apex Court in Jaipur Vidyut Vitran Nigam Limited (supra) and held that the language and the object with which the Circular dated 18.09.1964 came to be issued and also the Regulation No.241 of the Regulations, 1995, has made no distinction between an order of dismissal in a disciplinary proceeding and an order of dismissal, which is recorded as a consequence of conviction by a Criminal Court. It was further held that :-
"36. The circular makes it very clear that if an employee is reinstated in service on acquittal, then the competent authority is obliged to go through the judgment of acquittal and find out whether the employee concerned has been or has not been honourably acquitted. If it is ultimately found that the employee has been hounourably acquitted, then the period of absence from duty will have to be treated as a period of spent on duty and Page 9 of 54 Downloaded on : Fri Oct 13 20:51:12 IST 2023 NEUTRAL CITATION C/LPA/15/2017 CAV JUDGMENT DATED: 13/10/2023 undefined the employee would be entitled to full wages and allowances after deducting the amount of subsistence allowance already paid to him for the period of his absence from duty."
11. Having said so, the learned Single Judge has proceeded to analyze the findings returned by the Criminal Court of acquittal of both the writ petitioners. It was noted that this Court in appeal had noticed that there was absolutely nothing against Mr.R.B.Patel and accordingly, gave him clean-chit. Whereas, in the case of Mr.Babubhai Ishwarlal Patel, it appears that the bribe amount was recovered from the brother of the said writ petitioner, namely, Mr.Babubhai Ishwarlal Patel, who was also accused therein. Mr.Babubhai Ishwarlal Patel and his brother were given the benefit of doubt since there was no sufficient, cogent and reliable evidence to indicate that the amount accepted by the brother was at the instance of the writ petitioner, namely, Mr.Babubhai Ishwarlal Patel.
12. Noticing the above, it was held that the writ petitioner, namely Mr.R.B.Patel is entitled to all the reliefs which he has prayed for in the writ Page 10 of 54 Downloaded on : Fri Oct 13 20:51:12 IST 2023 NEUTRAL CITATION C/LPA/15/2017 CAV JUDGMENT DATED: 13/10/2023 undefined petition. Whereas, in the case of Mr.Babubhai Ishwarlal Patel, after a detailed discussion of the decisions of the Apex Court, to draw distinction between "full exoneration" and "acquittal on technical grounds or benefit of doubt", it was held that the question as to whether the employee would be entitled to the back-wages and other benefits from the date of dismissal to the date of his reinstatement should be left to be decided by the authority concerned, according to law, after culmination of the proceedings and depending upon the final outcome. It was noted that no departmental proceedings were instituted against the said writ petitioners, but later on they both were promoted. The State Government did not deem it fit to challenge the judgment of acquittal of both the writ petitioners. In light of the said discussion, it was held that having regard to the overall facts of the case, the writ petitioner, namely, Mr.Babubhai Ishwarlal Patel was entitled to only 50% of the back- wages and other consequential benefits. Page 11 of 54 Downloaded on : Fri Oct 13 20:51:12 IST 2023
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13. Challenging the order of the learned Single Judge, it was argued by Mr.Dipak R. Dave, learned counsel for the appellant, namely, Paschim Gujarat Vij Company Limited, that there was no question of grant of back-wages to any of the writ petitioners - respondents herein. Both the writ petitioners were convicted by a competent court of law vide judgment and order dated 09.09.1991; Show cause notices were, thereafter, issued to them as it was incumbent upon the appellants to terminate their services on their conviction. The Show Cause Notice dated 27.11.1991, issued to both the writ petitioners, individually, indicated that they were convicted by the Trial Court in Special (ACB) Case No.2 of 1989 by the Special Judge, Mehsana, on the charges of corruption vide judgment and order dated 09.09.1991 and were awarded the sentence of two years rigorous imprisonment with fine. They were called upon to show cause as to why punishment of dismissal from the Board's service with immediate effect be not inflicted upon them. The dismissal order was passed on 23.01.1992, separately, against each of the writ petitioners stating therein Page 12 of 54 Downloaded on : Fri Oct 13 20:51:12 IST 2023 NEUTRAL CITATION C/LPA/15/2017 CAV JUDGMENT DATED: 13/10/2023 undefined that looking to the magnitude of the offence committed and punishment inflicted on them by the Court, it was not desirable to continue them in the services of the Board. The contention of the learned counsel for the appellants is that on account of conviction of employees by a competent Court of law, there was no option with the employer, but to dismiss them from service, as they disabled themselves on account of conviction and incarceration as a result of the sentence, to continue in service. The submission is that no illegality can be attached to the order of dismissal of the writ petitioners dated 23.01.1992. Upon their acquittal by the High Court in appeal vide judgment and order dated 12.12.2006, they were reinstated in service by the order dated 20.06.2007. The order of reinstatement categorically recorded that the employees were being reinstated without back-wages and without any consequential benefits. For the period between the date of acquittal till the date of reinstatement also, back- wages and other consequential benefits had been paid to both the writ petitioners. The submission is that Page 13 of 54 Downloaded on : Fri Oct 13 20:51:12 IST 2023 NEUTRAL CITATION C/LPA/15/2017 CAV JUDGMENT DATED: 13/10/2023 undefined for the period during which both the writ petitioners remained out of employment, on account of conviction by a Court of law, i.e. from 23.01.1992 till 12.12.2006, none of them are entitled for the back- wages. It was urged that no financial benefits for the period when the writ petitioners remained out of employment, without any fault attributable to the employer - appellants herein, can be said to be payable to them.
14. A reference has been made to the General Standing Order No.7 dated 04.10.1960 of the Gujarat Electricity Board, the Fundamental Rules 15, to assert that the services of an employee of the Board/ Corporation who is convicted in a Court of law are liable to be terminated. The appellants - employer had no option but to terminate the services of the writ petitioners as a result of the conviction by a Court of law. It was further argued that Regulation No.241 of the Services Regulations has wrongly been interpreted by the learned Single Judge while recording that the same does not make any distinction Page 14 of 54 Downloaded on : Fri Oct 13 20:51:12 IST 2023 NEUTRAL CITATION C/LPA/15/2017 CAV JUDGMENT DATED: 13/10/2023 undefined between an order of dismissal in a disciplinary proceeding and an order of dismissal which is recorded as a consequence of conviction by a Criminal Court. It was argued that the entire scheme of the regulation has to be looked into to ascertain as to how Regulation No.241 has been placed therein, to interpret the language employed therein.
15. It was submitted that Chapter-VII of the Service Regulations pertains to disciplinary action and punishment. Various clauses in the said chapter provide for the Code of Conduct of an employee of the Board/Corporation. Regulation No.236 enumerates acts of misconduct or breach of discipline, which are punishable as acts of misconduct, which are indicative of such acts and breaches. Regulation No.237 provides for the punishments, to be inflicted on an employee who is found guilty of any act of misconduct or of any breach of discipline, according to the gravity of the breach or misconduct. Regulation No.238 states that the Board may prescribe a procedure for dealing with cases of acts of Page 15 of 54 Downloaded on : Fri Oct 13 20:51:12 IST 2023 NEUTRAL CITATION C/LPA/15/2017 CAV JUDGMENT DATED: 13/10/2023 undefined misconduct and breach of discipline, to hold guilty and to impose punishment, to pass order in disciplinary act and to hear appeal.
16. Regulation No.239(a) further states that an employee charged with any act of misconduct or any serious breaches of discipline is liable to be suspended pending inquiry, in accordance with the procedure prescribed in Regulation No.238. Regulation No.239(b) and (c) are relevant, insofar as suspension on the arrest of an employee of the Board, on a criminal charge and read as under :-
"239(b) An employee of the Board against whom the proceedings have been taken for his arrest on a criminal charge, should be considered as under suspension for any periods during which he is detained in custody.
(c) An employee of the Board, against whom a criminal charge is also liable to be suspended by the Competent Authority, during the periods when he is not actually detained in custody (e.g. whilst released on bail), if the charge made against him is connected with his position as a Board's Servant or is likely to embarrass him in the discharge of his duties or involves moral turpitude."
17. Regulation No.240 deals with the payment of subsistence allowance. Regulation No.241, relevant Page 16 of 54 Downloaded on : Fri Oct 13 20:51:12 IST 2023 NEUTRAL CITATION C/LPA/15/2017 CAV JUDGMENT DATED: 13/10/2023 undefined for our purposes is to be noted hereunder.
"241(1) When an employee of the Board who has been dismissed, removed or suspended is reinstated, the authority competent to order the reinstatement shall consider and make a specific order.
(a) Regarding pay and allowances to be paid to the employee for the period of his absence from duty.
(b) Whether or not the said period shall be treated as period spent on duty. (2) Where the authority mentioned in sub-rule (1) is of opinion that the employee has been fully exonerated or in the case suspension that it was wholly unjustified the employee shall be given the full pay and allowance to which he would have been entitled had he not been dismissed, removed or suspended as the case may be.
(3) In other case i.e. when the suspension is not wholly unjustified or the employee has been partially exonerated, he shall be given such proportion of pay and allowance as the competent authority prescribe by a specific order.
(4) In case falling under clause (2), the period of absence from duty shall be treated as a period spent on duty for all purpose. (5) In cases 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 specific purpose provided if the 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 employee.
(6) If the employee is found to be guilty or partially guilty he shall be liable to be punished according to the gravity of charge against him."Page 17 of 54 Downloaded on : Fri Oct 13 20:51:12 IST 2023
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18. Placing reliance on Regulation No.239(b) and
(c) and Regulation No.241, it was submitted by the learned counsel for the appellants that none of the clauses in the Regulations deals with the dismissal of an employee on account of conviction by a Court of law. So far as Regulation No.239(b) and (c) are concerned, they deal with the power of the Board to place an employee under suspension who has been arrested on a criminal charge and detained in custody and mandates that if the charge against an employee is connected with his position as a Board Servant or is likely to embarrass him in discharge of his duties or involves moral turpitude, he is liable to be suspended. Regulation No.241, however, provides the consequence of reinstatement of an employee who has been dismissed, removed or suspended. The submission is that Clause (2) of Regulation No.241 which provides for grant of full pay and allowances as a consequence of reinstatement of an employee who has been fully exonerated or whose suspension is found wholly unjustified, does not contemplate a situation where the services of an employee has been dismissed on account of his conviction in a Court of law.
19. It was submitted that the language of Regulation No.241(2) clearly reveals that it deals with a situation where an employee has been found to be exonerated in a disciplinary proceeding initiated Page 18 of 54 Downloaded on : Fri Oct 13 20:51:12 IST 2023 NEUTRAL CITATION C/LPA/15/2017 CAV JUDGMENT DATED: 13/10/2023 undefined against him by the employer or where he has been wrongly placed under suspension by the employer. It is, thus, argued that the said provision contemplates a situation where the employer is found to be at fault. Whereas, in the instant case, with the conviction of the writ petitioners, the appellant - employer had no option but to dismiss the services of both the writ petitioners as they could not remain in employment as a result of conviction by a Court of law. No fault at all can be attached to the decision of the appellants in dismissing the services of the writ petitioners. It is not a case where it can be said that the prosecution was initiated by the employer with mala fide nor any malice can be attached to the decision of the appellant - employer in dismissing the services of the writ petitioners. The criminal complaint was lodged against the writ petitioners by a private consumer when they were posted as Junior Engineers in the department. The charges were framed under the Prevention of Corruption Act and the conviction was recorded by a Court of law. The result was that the writ Page 19 of 54 Downloaded on : Fri Oct 13 20:51:12 IST 2023 NEUTRAL CITATION C/LPA/15/2017 CAV JUDGMENT DATED: 13/10/2023 undefined petitioners could not have been retained in employment. Reliance is placed on a decision of the Division Bench of this Court in Gujarat Energy Transmission Corporation Limited and others vs. Pravin B. Raval - 2018 (1) GLR 27, wherein this Court had addressed the question as to once the employee is dismissed on his conviction by the competent Criminal Court, considering the relevant provisions/service regulation, and, thereafter, when the conviction is set aside by the High Court and/or higher forum, while reinstating, whether the concerned employee shall be entitled to back-wages from the date of termination till reinstatement. It is pointed out that in the said decision the Division Bench has taken note of the General Standing Order No.7 of the Board, namely, the Fundamental Rules to record that the concerned employee therein had become ineligible for employment and could not be continued in service on his conviction by the competent Criminal Court. It was held that the concerned employee could not have remained employed with the Electricity Board during the period of conviction on account of the provisions Page 20 of 54 Downloaded on : Fri Oct 13 20:51:12 IST 2023 NEUTRAL CITATION C/LPA/15/2017 CAV JUDGMENT DATED: 13/10/2023 undefined regulating services to various posts viz. G.S.O. No.7. It was, thus, held therein that such an employee is not entitled to back-wages/full back- wages from the date of dismissal till he attained the age of superannuation (in that case).
20. Reliance is further placed on the decision of the Apex Court in Raj Narain vs. Union of India and others - 2019 (5) SCC 809, to substantiate the submission that on reinstatement after acquittal in a criminal case, the employee cannot claim back-wages as a matter of right, i.e. as a consequence of his reinstatement in service. Reliance has also been placed upon the decisions of the Apex Court in Hukmi Chand vs. Jhabua Cooperative Central Bank Limited - 1998 (2) SCC 291, Union of India vs. Jaipal Singh - 2004 (1) SCC 121, Banshi Dhar vs. State of Rajasthan - 2007 (1) SCC 324 and State Bank of India and another vs. Mohammed Abdul Rahim - 2013 (11) SCC 67, to substantiate the above submissions. A decision of the Single Bench of this Court in Rajubhai Mangalbhai Dulera vs. Gujarat Energy Transmission Corporation and Page 21 of 54 Downloaded on : Fri Oct 13 20:51:12 IST 2023 NEUTRAL CITATION C/LPA/15/2017 CAV JUDGMENT DATED: 13/10/2023 undefined another, being Special Civil Application No.8955 of 2018, dated 30.09.2019 (the bench comprising of one of us), has been placed to assert that the principles laid down in the above-noted decision of the Apex Court have been followed therein to hold that when an employee is dismissed consequent upon conviction by the Criminal Court, after his acquittal, he would not be entitled to back-wages, automatically.
21. On the reliance placed upon the General Standing Order No.7 dated 04.10.1960, which was not placed before the learned Single Judge, it was submitted by the learned counsel for the appellants that a new plea on a question of law, upon facts either admitted or proved beyond controversy, can be raised for the first time in a Court of appeal. The submission is that the appellants cannot be non- suited on the ground that General Standing Order No.7 was not placed or relied by them before the learned Single Judge.
22. In rebuttal, Shri R.B.Patel, the respondent - Party-in-person and Shri Anvesh Vyas, learned Page 22 of 54 Downloaded on : Fri Oct 13 20:51:12 IST 2023 NEUTRAL CITATION C/LPA/15/2017 CAV JUDGMENT DATED: 13/10/2023 undefined advocate appearing on behalf of another writ petitioner - respondent herein, has relied upon the Circular dated 13.04.1970 of the General Administration Department, Government of Gujarat, the Establishment Circular No.425 dated 19.04.1984 as also the Establishment Circular No.645 dated 28.02.2002, to assert that even the said circulars clearly provide that upon acquittal by the Court, full pay and allowances would be admissible for the period of absence from duty. The submission is that the Circular dated 19.04.1984 even provides for payment of subsistence allowance during the pendency of the appeal in a Criminal Court of law. A copy of the communication dated 10.10.2017, reply to the RTI application moved by Shri R.B.Patel, the Party-in- person herein, has been placed before us to assert that all Government circulars are applicable in the matter of services of the employees of the Corporation. The Government Resolution dated 02.04.1983 in relation to the sealed cover procedure for promotion of officers against whom disciplinary/Court proceedings are pending for a long Page 23 of 54 Downloaded on : Fri Oct 13 20:51:12 IST 2023 NEUTRAL CITATION C/LPA/15/2017 CAV JUDGMENT DATED: 13/10/2023 undefined time, has been placed to assert that it provides that where the acquittal by a Court is on technical grounds and if the Government does not propose to go in appeal to a higher Court or to take further disciplinary action, the decision against such an officer shall be taken as if he had been acquitted by the Court of law on merits.
23. Reliance is placed on the decision of this Court in M.V.Chauhan vs. State of Gujarat - (2000) 1 GLR 909, to assert that the principle of 'No work No pay' is not applicable in a case where no fault can be attributed to the employee. Placing further reliance on the decision of the Full Bench of this Court in P.D.Waghela and others vs. G.C. Raiger and others - (1994) 1 GLR 240, it was argued that the Full Bench while interpreting the expression 'conviction' found in Clause (a) of the second proviso to Clause (2) of Article 311 of the Constitution of India has held that :-
"21. Accordingly we express our opinion on the question coming up for our consideration as follows :Page 24 of 54 Downloaded on : Fri Oct 13 20:51:12 IST 2023
NEUTRAL CITATION C/LPA/15/2017 CAV JUDGMENT DATED: 13/10/2023 undefined The conviction spoken to in clause (a) of the second proviso to clause (2) of Article 311, from a basis for the dismissal, removal or reduction in rank, could be on recorded by a competent Criminal Court in the first instance and the preferring of an appeal or revision against such conviction, need not conform to clause (2) of Article 311, since by the express terms of the second proviso thereto, clause (2) of Article 311, is dispensed with."
24. It was submitted that while holding so, it was noted therein that in order to sustain an order of dismissal from service of a Civil Servant without compliance of the provisions of Article 311 (2), there must be a conviction of that person on a criminal charge by a competent Court. Once the conviction is set aside or quashed, the dismissal order must fall to the ground. An acquittal of a person of a criminal charge by a higher Court setting aside the conviction passed by a subordinate or inferior Court is tantamount to, the person not having been convicted at all. The setting aside of a wrong order of a Court results in the position as if such an order was never in existence, though as a fact the order was passed and lasted till it was set aside.
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25. It was, thus, argued on behalf of the respondents that the termination order which was passed solely based on the conviction by the Criminal Court will obliterate, as soon as the writ petitioners were acquitted of the criminal charge by the High Court in appeal. The consequential benefits are liable to be paid to the writ petitioners placing them in the original position as if such orders (dismissal orders) were never in existence. Further reliance is placed on the decision of the Apex Court in Jaipur Vidyut Vitran Nigam Limited (supra), to assert that pari materia provisions as contained in the Service Regulation No.241 herein, were considered therein, which provided for payment of full pay and allowances to an employee dismissed from service on conviction and later acquitted. Reference has been placed to a decision of the C.E.O. & S.E. (O & M), Paschim Gujarat Vij Company Limited (PGVCL), wherein the suspension order of an employee against whom a criminal complaint was lodged by the department was revoked by applying the provisions of the Service Regulation No.241(2), to decide that the suspension Page 26 of 54 Downloaded on : Fri Oct 13 20:51:12 IST 2023 NEUTRAL CITATION C/LPA/15/2017 CAV JUDGMENT DATED: 13/10/2023 undefined period of the said employee should be treated as 'spent on duty for all the purposes'. The communication dated 01.08.2007 of the said authority has been placed before us to place that in the case of acquittal by the Trial Court, it was treated as exoneration from all charges levelled against him in view of the Service Regulation No.241(2). With the above, the contention of the learned counsel for the respondents is that the argument of the appellants that Regulation No.241 shall not apply in case of acquittal in a criminal case, is a misconceived argument.
26. Heard learned counsels for the parties and perused the records. To deal with the contentions of the learned counsels for the rival claimants, we are first required to discuss the law laid down by the Hon'ble Apex Curt in a long-line of decisions in the matter of award of back-wages, in the case of reinstatement of the employee.
27. In Deepali Gundu Surwase vs. Kranti Junior Adhyapak Mahavidyalaya (D.ED.) reported in (2013) 10 Page 27 of 54 Downloaded on : Fri Oct 13 20:51:12 IST 2023 NEUTRAL CITATION C/LPA/15/2017 CAV JUDGMENT DATED: 13/10/2023 undefined SCC 324, the Apex Court decided the issue of reinstatement with continuity of service and back- wages in the cases of wrongful termination of service. The principles culled out by the Apex Court in paragraph '33', in brief, are noted as under : -
"(i) In cases of wrongful termination of service, reinstatement with continuity of service and back wages is the normal rule.
(ii) The said rule is subject to the rider that the adjudicating authority or the Court, while deciding the issue of back-wages, may take into consideration the factors ;
(a) length of service of the
employee/workman
(b) the nature of misconduct, if any,
found proved against the employee
(c) the financial condition of the
employer
(d) similar other factors.
(iii) The question as to whether employee or workman whose services are terminated was gainfully employee or was getting wages equal to the wages, he/she gets wages prior to the termination of the services, would be subject to the proof, burden of which lay on the employee to show that he was not employed, the onus then would lie on the employer to specifically plead and prove that the employee was gainfully employed and was getting the same or substantially similar emoluments.
(iv) The cases wherein it is found that though the inquiry held against the employee is Page 28 of 54 Downloaded on : Fri Oct 13 20:51:12 IST 2023 NEUTRAL CITATION C/LPA/15/2017 CAV JUDGMENT DATED: 13/10/2023 undefined consistent with the rules of natural justice and certifying the standing orders / rules, but if the punishment was held disproportionate to the misconduct found proved, then the Court will have discretion not to award full back wages. However, if it finds that employee is not at all guilty of any misconduct or that the employer had foisted a false charge, then there will be ample justification for award of full back wages.
(v) The cases wherein the Court finds that the employer has acted in gross violation of the statutory provisions and/or the principles of natural justice or is guilty of victimizing the employee, then the Court will be fully justified in directing payment of full back wages. In such cases, the superior Courts should not interfere with the award, merely because there is a possibility of forming a different opinion on the entitlement of the employee/workman to get full back wages. The Court must always be kept in view that in the cases of wrongful /illegal termination of service, the wrongdoer is the employer and sufferer is the employee and there is no justification to give premium to the employer of his wrongdoings by relieving him of the burden to pay to the employee/workman for his dues in the form of full back wages.
(vi) In a number of cases, the superior Courts have interfered with the award of the primary adjudicatory authority on the premise that finalization of litigation has taken long time ignoring that in majority of cases the parties are not responsible for such delays.
Lack of infrastructure and manpower is the principal cause for delay in the disposal of cases. For this the litigants cannot be blamed or penalised. It would amount to grave injustice to an employee or workman if he is denied back wages simply because there is long lapse of time between the termination of his service and finality given to the order of reinstatement. The Courts should bear in mind Page 29 of 54 Downloaded on : Fri Oct 13 20:51:12 IST 2023 NEUTRAL CITATION C/LPA/15/2017 CAV JUDGMENT DATED: 13/10/2023 undefined that in most of these cases, the employer is in an advantageous position vis-à-vis the employee or workman. He can avail the services of best legal brain for prolonging the agony of the sufferer, i.e., the employee or workman, who can ill afford the luxury of spending money on a lawyer with certain amount of fame. Therefore, in such cases it would be prudent to adopt the course suggested in Hindustan Tin Works Private Limited v. Employees of Hindustan Tin Works Private Limited, (1979) 2 SCC 80."
28. Going through the above-noted decision, we find that the fundamental principle in the matter of granting of back-wages, as laid down by the Apex Court in Deepali Gundu Surwase (supra), is based on the fault theory. The crux is that the cases wherein the employer is found at fault or is a wrongdoer and the employee is a sufferer, the employee would be entitled to get full back-wages. The denial of back- wages to the employee, in such cases, where fault is found at the ends of the employee and the inquiry, wherein allegations of misconduct are proved is held in accordance with the statutory rules and in compliance of the natural justice, is held justified. The basic rule is that wrongdoer cannot be given premium of his wrongdoings.
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29. Keeping is mind this basic principle in the matter of payment of back-wages in the cases of reinstatement, we may go through the decisions, wherein the Apex Court has specifically dealt with the question of payment of back-wages in case the services of the employee had been dismissed on account of the conviction in a criminal case.
30. In Hukmi Chand vs. Jhabua Cooperative Central Bank Limited (supra), the appellant - employee was chargesheeted in the criminal case and was convicted and sentenced to rigorous imprisonment for one year with fine for the offences under the Essential Commodities Act. The appeal against the conviction order was dismissed. In the revision filed before the High Court, the High Court has set aside the conviction on the ground that the prosecution had failed to prove the charges against the appellant - employee. In the meanwhile, on account of the conviction of the appellant, his services were terminated by the employer under the service rules. On account of ultimate acquittal of the appellant, he Page 31 of 54 Downloaded on : Fri Oct 13 20:51:12 IST 2023 NEUTRAL CITATION C/LPA/15/2017 CAV JUDGMENT DATED: 13/10/2023 undefined was reinstated without back-wages in service. The Apex Court while reading the service rules, has observed that under the relevant rule, there is a clear implied power to order back-wages if the employer considers it appropriate looking to the facts and circumstances of a given case. All that the rule provides is that the order must state that such back wages are being granted. It was observed that in the absence of an order specifying the order of grant of back-wages, the reinstatement will not automatically entitle an employee to back wages. The right to reinstatement on acquittal, therefore, does not carry with it, by necessary implication, a right to back wages under the relevant Rules. The employer has discretion to grant back wages. It was held that during the pendency of the appeal, the conviction is not obliterated. Service rule provides for reinstatement only on acquittal. The grant of back- wages in this circumstances, will obviously depend upon the facts and circumstances of each case, especially because in the interregnum, the employee does not work with the employer on account of a valid Page 32 of 54 Downloaded on : Fri Oct 13 20:51:12 IST 2023 NEUTRAL CITATION C/LPA/15/2017 CAV JUDGMENT DATED: 13/10/2023 undefined termination of service. It was held that the decision of the employer not to grant back-wages to the appellant, cannot be considered as totally unreasonable requiring interference in the said case.
31. In Union of India vs. Jaipal Singh (supra), the respondent - employee therein was convicted for the offence under Section 302 read with Section 34 of the Indian Penal Code. On appeal, the High Court returned the verdict of acquittal. The employee was not reinstated in spite of the order of acquittal and hence, he moved the High Court which allowed the writ petition granting the relief of reinstatement with full back-wages and consequential benefits to the respondent - employee. The Appeal before the Apex Court was filed by the Union of India challenging the grant of back-wages. The Apex Court concurring with the view taken in a similar decision in Ranchhodji Chaturji Thakore versus Supdt. Engineer, Gujarat Electricity Board - (1996) 11 SCC 603, has observed that if prosecution, which ultimately resulted in acquittal of the person concerned, was at the behest Page 33 of 54 Downloaded on : Fri Oct 13 20:51:12 IST 2023 NEUTRAL CITATION C/LPA/15/2017 CAV JUDGMENT DATED: 13/10/2023 undefined or by department itself, perhaps different consideration may arise. However, if a citizen, the employee or the public servant got involved in the criminal case and if after initial conviction by the trial Court, he gets acquittal in the appeal subsequently, the department cannot, in any manner, be found at fault for having kept him out of service, since the law obliges a person convicted of an offence to be so kept out and not be retained in service. It was held that though reinstatement in service cannot be interfered with as the respondent employee was discharged on account of conviction only, however, the appellants - employers were well within their right to deny back-wages to the respondent - employee for the period he was not in service. The appellant cannot be made liable to pay for the period for which they cannot avail of the services of the respondent. It was, thus, concluded that the High Court had committed a grave error in allowing the back-wages also, without adverting to such relevant aspects and considerations. Page 34 of 54 Downloaded on : Fri Oct 13 20:51:12 IST 2023
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32. In Banshi Dhar vs. State of Rajasthan (supra), the appellant - employee therein was convicted for the offence under the Prevention of Corruption Act read with Section 5(1)(d) of the Prevention of Corruption Act read with 161 of the Indian Penal Code. He was placed under suspension and later dismissed from the service on conviction by the competent court of law. Th appeal preferred against the judgment of conviction and sentence was allowed and the appellant was acquitted. In the meanwhile, the appellant reached his age of superannuation. On challenge, the Court though granted pensionary benefits, but was denied back-wages. The contention of the learned counsel for the appellant therein before the Apex Court was that it being not the case where the employee had remained in custody for alleged commission of the offence which prevented him from attending the duty, he could not have been denied back-wages. The decision in Ranchhodji Chaturji Thakore vs. Supdt. Engineer, Gujarat Electricity Board (supra), had wrongly been applied by the High Court. It was argued that the dictum in Page 35 of 54 Downloaded on : Fri Oct 13 20:51:12 IST 2023 NEUTRAL CITATION C/LPA/15/2017 CAV JUDGMENT DATED: 13/10/2023 undefined Union of India vs. Jaipal Singh (supra), was not applicable in the facts of the said case. It was noted by the Apex Court that the employee - appellant remained under suspension for 11 years and received subsistence allowance during the said period. The long pendency of the trial or the criminal appeal filed by him, may not be attributed to his acts of omission and commission, but the fact remains that till the employee reached at the age of superannuation, he did not work. Legality of the order of dismissal on the basis of the judgment of conviction and sentence had not been questioned. The services were dispensed with after conviction in the case involving grave misconduct. On acquittal, he was to be reinstated in the services, but on account of superannuation, he was paid pensionary benefits. The entire period during which the employee remained under suspension, was considered for calculating his pensionary benefits. The continuity of services has not been denied to him. In such situation, the question as to whether, back-wages should have been granted to the said employee was considered by the Page 36 of 54 Downloaded on : Fri Oct 13 20:51:12 IST 2023 NEUTRAL CITATION C/LPA/15/2017 CAV JUDGMENT DATED: 13/10/2023 undefined Apex Court. It was observed in paragraph Nos.'9, 10, 11' as under: -
"9. No hard and fast rule can be laid down in regard to grant to back wages. Each case has to be determined on its own facts. A grave charge of criminal misconduct was alleged against him. He was also found guilty of the charges levelled against him by the Special Judge. The High Court while delivering its judgment dated 16.01.2001 in S.B. Criminal Appeal No. 68 of 1985 inter alia held that the prosecution has not been able to prove that any demand had been made by him.
10. It is now a trite law that judgment of acquittal itself would not have exonerated him of the charges levelled against him. He could have been proceeded against in a departmental proceeding. [See Manager, Reserve Bank of India, Bangalore v. S. Mani and Others, (2005) 5 SCC 100 and Commissioner of Police, New Delhi v. Narender Singh, (2006) 4 SCC 265]
11. Departmental proceedings, however, could not be held as on the date of passing of the judgment of acquittal, he had already reached his age of superannuation. The learned counsel may be right that the decisions of this Court referred to hereinbefore involved the respective appellants therein on charge of murder under Section 302 of the Indian Penal Code, but, as noticed, it has also been laid down that each case has to be considered on its own facts.
The High Court refused to exercise its discretionary jurisdiction having regard to the aforementioned decision of this Court in Ranchhodji Chaturji Thakore (supra). We do not see any reason to take a different view. Grant of back wages, it is well settled, is not automatic. Even in cases where principles of natural justice have been held to have not been complied with, while issuing a direction Page 37 of 54 Downloaded on : Fri Oct 13 20:51:12 IST 2023 NEUTRAL CITATION C/LPA/15/2017 CAV JUDGMENT DATED: 13/10/2023 undefined of reinstatement, this Court had directed placing of the delinquent employee under suspension."
33. In State Bank of India and Anr. (supra), the question before the Apex Court was that whether the respondent employee was entitled to the benefit of back-wages for the period for which he remained out of employment following his conviction in the criminal case. The High Court therein has taken a view that the employee was entitled for back-wages, for the reasons assigned by it. It was observed that in a case of misconduct that give rise to a criminal offence, it is always open for the employer to initiate departmental proceedings which option the employer may or may not exercise. In the event, the employer choose to initiate departmental proceedings, it would be open for such an employer to continue with departmental action, notwithstanding the acquittal of the employee in the criminal case that may have been lodged against him. This is on the principle that the standard of proof in the criminal case and departmental proceedings is different. However, in the case where the employer chooses not Page 38 of 54 Downloaded on : Fri Oct 13 20:51:12 IST 2023 NEUTRAL CITATION C/LPA/15/2017 CAV JUDGMENT DATED: 13/10/2023 undefined to initiate a departmental proceeding and acts only on the basis of conviction in the criminal case, he would be bound by the final verdict in the same, i.e. in the case of reversal. It was observed that there can be no manner of doubt that the acquittal by the appellate Court would relate back and the initial order of conviction would stand obliterated. There can be no manner of doubt that the substratum of the cause that had led to the respondent's dismissal/discharge in the present case had ceased to exist. The same would entitle him to be reinstated in service. However, on the issue of back-wages, the respondent- employee could not have remained employed with the appellant - Bank during the period of conviction by the trial court till acquittal by the appellate court, under the service rules. It was, thus, difficult to visualize as to how he would be entitled to payment of salary during that period. It was held that the subsequent acquittal of the employee though obliterates his conviction, but does not operate retrospectively, to wipe out the legal consequences of conviction under the Act. The Page 39 of 54 Downloaded on : Fri Oct 13 20:51:12 IST 2023 NEUTRAL CITATION C/LPA/15/2017 CAV JUDGMENT DATED: 13/10/2023 undefined entitlement of the respondent employee of back-wages has to be judged on the aforesaid basis.
34. In light of the above, the appeal was allowed therein and in the facts of the said case where there was delay in reinstatement on the part of the appellant - Bank, the respondent - employee was held entitled to wages from the period he had lodged demand of the same following his acquittal, until the date of his reinstatement, as the same had not been granted by the appellant - Bank.
35. Further, a long-line of decisions have been considered by the Apex Court in a recent judgment in Raj Narain vs. Union of India and others (supra), wherein the appellant employee therein was dismissed from service in view of his conviction under Sections 409, 467, 420 of IPC. He was sentenced to imprisonment for three years. The appeal against conviction was allowed and he was acquitted of the charges for the said offences. The request of the appellant for reinstatement of the appellant was refused and hence, he approached the Tribunal, which Page 40 of 54 Downloaded on : Fri Oct 13 20:51:12 IST 2023 NEUTRAL CITATION C/LPA/15/2017 CAV JUDGMENT DATED: 13/10/2023 undefined had directed for reinstatement of the appellant by holding that he shall be entitled for seniority and notional fixation of pay with increments from the date of his dismissal till reinstatement. However, he was held dis-entitled for back-wages for the period during which he was not in service. On further challenge, the High Court had held that the appellant shall be entitled to full back-wages from the date of the order of his acquittal till date of his reinstatement. The denial of back-wages for the period after conviction till date of acquittal by the High Court was challenged before the Apex Court. The Apex Court having considered its earlier decisions in Ranchhodji Chaturji Thakore vs. Supdt. Engineer, Gujarat Electricity Board (supra), and Union of India vs. Jaipal Singh (supra), has reiterated the principles therein as under : -
"6. The decision of Ranchhodji Chaturji Thakore (supra) was followed by this Court in Union of India and Others v. Jaipal Singh (supra) 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 Page 41 of 54 Downloaded on : Fri Oct 13 20:51:12 IST 2023 NEUTRAL CITATION C/LPA/15/2017 CAV JUDGMENT DATED: 13/10/2023 undefined 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 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".
36. It was, thus, held that the appellant employee therein shall be entitled for the back-wages only from the date of acquittal till the date of his reinstatement in service.
37. We may also note the decision of the Division Bench of this Court in the case of Gujarat Energy Page 42 of 54 Downloaded on : Fri Oct 13 20:51:12 IST 2023 NEUTRAL CITATION C/LPA/15/2017 CAV JUDGMENT DATED: 13/10/2023 undefined Transmission Corporation Limited and others vs. Pravin B. Raval, (supra), relied upon by the learned counsel for the appellants, which relates to an employee of Gujarat Energy Transmission Corporation Ltd., who was facing conviction for the offences under the Prevention of Corruption Act. The Division Bench of this Court therein had considered the General Standing Order-7 ('GSO-7' for short) to record that as per GSO-7, the concerned employee had become ineligible to be continued in service on his conviction by the competent criminal court. The above noted decisions of the Apex Court have been noticed therein to hold that such an employee though shall be entitled to all the retirement / pensionary benefits including the amount of Gratuity etc. on his being acquittal by the High Court in appeal and the conviction being set aside, as if, the order of dismissal dos not exist, but he shall not be entitled to back-wages / full back-wages from the date of dismissal till he attained the age of superannuation which he had reached before acquittal. Page 43 of 54 Downloaded on : Fri Oct 13 20:51:12 IST 2023
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38. In light of the above legal position, reverting to the facts of the instant case, the respondent employees were dismissed from service on their conviction and the award of sentence of two years imprisonment by the criminal court of law. We may record, at the outset, that we do not find any error in the action of the employer in dismissing the services of the said employees, the petitioners - respondents herein, as a result of their conviction and the reliance placed by the learned counsel for the appellants on Clause 15 of the GSO-7, which provides that the service of an employee of the Board who is convicted in the Court of law, are liable to be terminated. We may note that both the respondents herein did not challenge the termination of their services on account of the conviction.
39. We do not find any error in the decision of the employer not to proceed with the departmental inquiry while dismissing the respondents from service simply on account of the conviction in criminal cases Page 44 of 54 Downloaded on : Fri Oct 13 20:51:12 IST 2023 NEUTRAL CITATION C/LPA/15/2017 CAV JUDGMENT DATED: 13/10/2023 undefined lodged against them by a private person - a consumer. The present case is one of those cases where no fault can be attributed to the employer in dismissing the respondent-employees from service on their conviction. It is not one of those cases where allegations of commission of offence under the Prevention of Corruption Act were levelled by the employer. The criminal charge under the Prevention of Corruption Act, for which the respondent employees were convicted, was levelled at the instance of a consumer / private person. The result is that no fault can be attributed to the appellants in keeping the respondent-employee out of employment. After conviction was recorded, the services of both the respondents were dismissed after giving them show- cause notice. After their acquittal in the appeal, they were reinstated and back-wages from the date of acquittal till the date of reinstatement were also paid to both of them.
40. In the said scenario, the question as to whether the respondents - writ petitioners are Page 45 of 54 Downloaded on : Fri Oct 13 20:51:12 IST 2023 NEUTRAL CITATION C/LPA/15/2017 CAV JUDGMENT DATED: 13/10/2023 undefined entitled for full back-wages from the date of dismissal till the date of acquittal, has to be answered keeping in mind the above noted position of law. We are also required to consider the applicability of Regulation 241(2) in the cases of dismissal on account of conviction. As noted above, the learned Single Judge on consideration of the Regulation 241, reached at the conclusion that the said regulation has made no distinction between the order of dismissal in disciplinary proceedings and an order of dismissal, which is recorded as consequence of conviction by the criminal Court.
41. Having carefully gone through the law holding the field in the matter of grant of back-wages, noted above, and carefully gone through the various clauses of the Service Regulation 1995 noted above, we are afraid to convince ourselves to agree with the aforesaid opinion of the learned Single Judge. With all humility at our command, we may say that the learned Single Judge has erred in reading the Regulation 241 in conjunction with the circular dated Page 46 of 54 Downloaded on : Fri Oct 13 20:51:12 IST 2023 NEUTRAL CITATION C/LPA/15/2017 CAV JUDGMENT DATED: 13/10/2023 undefined 18.09.1964 to hold that even in the case of dismissal on conviction, when an employee is acquitted of the offence by the Appellate Court, the payment of back- wages is automatic or normal rule. Learned Single Judge has travelled beyond the controversy in proceeding to consider as to whether the acquittal was honourable or by giving benefit of doubt, to examine as to which of the respondents would be entitled to full back-wages. It seems to us that the said inquiry was made by the learned Single Judge based on the decision of the Apex Court, as it has reached at the conclusion that the Regulation 241(2) mandates the payment of full back-wages and allowances even in case of acquittal of a criminal charge after conviction by the trial court, treating it as exoneration of the employee of all the charges levelled against him.
42. We may note that though GSO-7 namely General Standing Order No.7 had not been brought before the learned Single Judge, but there is no dispute about the order of dismissal of the services of the Page 47 of 54 Downloaded on : Fri Oct 13 20:51:12 IST 2023 NEUTRAL CITATION C/LPA/15/2017 CAV JUDGMENT DATED: 13/10/2023 undefined appellants on account of their conviction by the criminal court of law, without any departmental inquiry having been held by the employer. The respondent employees had never raised any dispute with regard to the dismissal of their services on account of convicted by the Court of law.
43. The contention of the learned counsel for the respondent is that GSO-7, which has been placed first time before us in the intra-court appeal, pertains to the procedure prescribed in regard to the recruitment of various posts under the Board, by direct recruitment or by promotion, and Clause 15 of GSO-7, as such, does not apply to the facts of the instant case, inasmuch as, it pertains to the stage of recruitment of a candidate in Board service, and deals with eligibility of a candidate who is convicted in the Court of law.
44. Dealing with the said contention, suffice it to say that for the fact that the respondent had never challenged the dismissal of their services on Page 48 of 54 Downloaded on : Fri Oct 13 20:51:12 IST 2023 NEUTRAL CITATION C/LPA/15/2017 CAV JUDGMENT DATED: 13/10/2023 undefined conviction only, the question with regard to the applicability of Clause 15 of GSO-7 will have no consequence. The fact remains that the services of the respondents were terminated on account of their conviction by the criminal court without holding any departmental inquiry, after issuing show-cause notices to them, by the employer. The respondents had acquiesced with the position and did not raise a dispute that they cannot be kept out of employment on their conviction, only. For this reason, the fact that the sentence was suspended on the admission of the Appeal by the High Court, would also be of no consequence.
45. It is evident that the respondents employees had disabled themselves from continuing in employment of the appellants, on account of conviction in the criminal cases for the offence under the Prevention of Corruption Act. No fault can be attributed to the employer for taking the decision to keep the respondent employees out of employment. No wrong can be attributed to the act of the employer, even after Page 49 of 54 Downloaded on : Fri Oct 13 20:51:12 IST 2023 NEUTRAL CITATION C/LPA/15/2017 CAV JUDGMENT DATED: 13/10/2023 undefined the acquittal of the petitioners by the criminal court of law, inasmuch as, the criminal charges were not levelled against them by the employer. It is not a case where it can be said that the employer had foisted false charges against the respondent - employees.
46. Now coming to the impact of Regulation 241(2), we may note that the said regulation contained in Chapter VII pertains to disciplinary action and punishment against the employees of the Board. As noted above, the chapter prescribes the procedure of holding a departmental inquiry, placing an employee on suspension and to punish him, if found guilty of any act of misconduct or of breach of discipline. Regulation 239(b) and (c) as extracted above, enables an employer to suspend an employee on his arrest in the proceedings on a criminal charge and also during the period when he is not actually detained in the custody. However, Regulation 241 deals with a situation where an employee of the Board who has been dismissed, removed, or suspended, can be reinstated. Page 50 of 54 Downloaded on : Fri Oct 13 20:51:12 IST 2023
NEUTRAL CITATION C/LPA/15/2017 CAV JUDGMENT DATED: 13/10/2023 undefined Clause 1 of sub-clause (a) and (b) of Regulation 241 provides that an authority is competent to order to reinstate an employee by passing a specific order as to whether he is entitled for pay and allowances for the period of his absence from duty and whether the said period shall be treated as period spent on duty on his reinstatement in his service.
47. Further a careful reading of the Clause (2) of Regulation 241 indicates that, in the case, where the competent authority reached at the opinion that an employee has been fully exonerated or the suspension was wholly unjustified, it would pass an order to give full pay and allowances to him as if he had not dismissed, removed or suspended as the case may be.
48. In our considered opinion, the above clause contemplates the situation where an employee is not found guilty of the charges levelled against him in the disciplinary inquiry or it is found that the suspension of his services was unjust on the part of the employee. The phrase "fully exonerated" as Page 51 of 54 Downloaded on : Fri Oct 13 20:51:12 IST 2023 NEUTRAL CITATION C/LPA/15/2017 CAV JUDGMENT DATED: 13/10/2023 undefined occurring in clause (2) of Regulation 241 cannot be read to mean to ipso facto include 'acquittal' by a competent court of law. As noted above, the employer was not at fault in dismissing the services of the respondents - employees on account of their conviction by the criminal court. Their subsequent acquittal by the Appellate Court though obliterates their conviction, but does not operate retrospectively to wipe out the legal consequence of the conviction, under the Rules of the Board. As held by the Apex Court, the employer cannot be saddled with the back-wages on the acquittal of the respondent-employees by the Criminal Court, unless it is found that the prosecution was malicious. As noted by the Apex Court in the case of Raj Narain (supra), the observations made in the judgment of Union of India vs. Jaipal Singh (supra), has to be understood in a manner in which the department would become liable for back-wages in the event of finding that initiation of the criminal proceedings was mala fide or with vexatious intent. In all other cases, even where the criminal proceedings has been Page 52 of 54 Downloaded on : Fri Oct 13 20:51:12 IST 2023 NEUTRAL CITATION C/LPA/15/2017 CAV JUDGMENT DATED: 13/10/2023 undefined initiated by the department, reversing the criminal case lodged by the police, there shall be no difference in the matter of grant of back-wages.
49. As no such circumstance exists in the instant case, in view of the settled legal position, the basic rule that reinstatement with back-wages is a normal rule only in the case of wrongful termination, we do not concur with the decision of the learned Single Judge. With due respect to the Bench, we hold that the learned Single Judge has erred in law in reading of the Regulation 241(2) of Service Regulation, 1995 and in holding that payment of full back-wages is a normal rule in case of subsequent acquittal of an employee of the appellant department, in the appeal against conviction by the competent criminal court and the discretion would be only in cases where employee has been given benefit of doubt.
50. For all the above discussion, we find merit in the appeals. While setting aside the judgment and order dated 03.08.2016 passed by the learned Single Page 53 of 54 Downloaded on : Fri Oct 13 20:51:12 IST 2023 NEUTRAL CITATION C/LPA/15/2017 CAV JUDGMENT DATED: 13/10/2023 undefined Judge, both the appeals are allowed. In the result, both the writ petitions stand dismissed.
51. Letters Patent Appeal No.710 of 2019 is dismissed in view of the discussions in the foregoing paragraphs of this judgment. Civil Application(s) pending in the Appeals, if any, also stand disposed of. No order as to costs.
(SUNITA AGARWAL, CJ ) (N.V.ANJARIA, J) GAURAV THAKER/AMAR SINGH Page 54 of 54 Downloaded on : Fri Oct 13 20:51:12 IST 2023