Jharkhand High Court
Sobhan Ram vs Coal India Limited Through Its ... on 10 January, 2022
Author: Anubha Rawat Choudhary
Bench: Anubha Rawat Choudhary
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(S) No. 5754 of 2009
Sobhan Ram, son of Late Karmu Ram, resident of Village-
Hesag, P.O. Hatia, P.S. Jagarnathpur, District- Ranchi
... ... Petitioner
Versus
1. Coal India Limited through its Chairman-cum-Managing
Director, 10 Netaji Subhash Road, Kolkatta.
2. Central Coal Field Limited, through its Chairman-cum-
Managing Director, Darbhanga House, Ranchi.
3. Bharat Cocking Coal Limited through its Chairman-cum-
Managing Director, Dhanbad.
4. CMPF Commissioner, Dhanbad, P.O. and P.S. Dhanbad,
District - Dhanbad Jharkhand
... ... Respondents
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CORAM :HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
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For the Petitioner : Mr. Rajendra Krishna, Advocate For the Resp.-CCL : Mr. Amit Kumar Das, Advocate For the C.M.P.F. : None
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Through Video Conferencing
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38/10.01.2022 Heard Mr. Rajendra Krishna, learned counsel appearing on behalf of the petitioner.
2. Heard Mr. Amit Kumar Das, learned counsel appearing on behalf of the respondent-C.C.L.
3. Nobody appears on behalf of the respondent- C.M.P.F.
4. The present petition has been filed challenging the order no. 752 dated 29/30.10.2009 passed by the respondent no. 1 whereby the representation filed by the petitioner in pursuance of order passed by this Court in W.P.(S) No. 3180 of 2009 has been rejected. The petitioner has also prayed for setting aside the order no. 763 dated 06.07.1999 issued by the Respondent No. 1 whereby the petitioner has been dismissed from service on the sole ground of conviction in criminal case. Arguments of the Petitioner.
5. The petitioner was terminated on account of conviction in a criminal case but without holding any regular departmental enquiry and subsequently, the petitioner has been acquitted.
2The petitioner had moved this Court in W.P.(S) No. 3180 of 2009 challenging his order of termination on the ground of acquittal in the criminal case and the writ petition was disposed of with a direction to the appointing authority to examine the representation of the petitioner and to pass an appropriate reasoned order, either directing or refusing reinstatement of the petitioner and if reinstatement is ordered, to consider as to whether the petitioner should or should not be paid the entire back wages from the date of dismissal till the date of reinstatement.
6. It is not in dispute that the petitioner was Ex-Deputy Personnel Manager, Personnel, CCL, Ranchi (earlier posted in B.C.C.L.) and was convicted by the Special Judicial Magistrate, C.B.I., Dhanbad vide judgement dated 21.12.1998 in R.C. Case No. 3 and 9 of 1984 for alleged act relating to illegal appointment of 13 persons in B.C.C.L. On account of conviction, the petitioner was dismissed from the service of the company vide order dated 06.07.1999 issued by the Chairman- Cum-Managing Director and Disciplinary Authority, Coal India Limited. The judgement of conviction was upheld by the appellate court in Criminal Appeal No. 7 of 1999 and thereafter, the petitioner filed Criminal Revision No. 545 of 2006 before this Court. The criminal revision was allowed vide order dated 16.04.2009 and the petitioner has been acquitted.
7. Thereafter, the petitioner had filed the aforesaid writ petition being W.P.(S) No. 3180 of 2009 before this Court for his reinstatement in service and release of entire arrears of difference of salary as well as consequential benefits and promotion and the matter was remitted back to the appointing authority for examining the representation of the petitioner. The appointing authority i.e. the respondent no. 1 vide impugned order dated 30.10.2009 considered the representations of the petitioner and found that the petitioner 3 had already retired on superannuation with effect from 31.01.2009 i.e. before he was acquitted in criminal revision. The authority was of the view that reinstatement of service of the petitioner cannot be considered. Further, the authority held that until the date of his retirement on 31.01.2009, the petitioner was a convict by virtue of the order passed by a competent court and therefore, the petitioner is not entitled to get any back wages during the period from 21.07.1999 to 31.01.2009 as he did not work during the said period. The authority also held that the petitioner cannot claim consequential benefit like promotion etc. since he was not in service nor he could be promoted as because on the date of reaching his superannuation, he was a convict.
8. The learned counsel for the petitioner, while assailing the aforesaid order dated 30.10.2009, has submitted that one of the similarly placed co-convict with the petitioner, namely Binod Kumar Singh, was acquitted by the appellate court and was also dismissed on account of his involvement in the criminal case and he was acquitted by the appellate court after his retirement. Said Binod Kumar Singh had also filed a writ petition before this Court in W.P.(S) No. 1619 of 2004 challenging his termination from service and the matter was remitted to the Chairman -cum- Managing Director, B.C.C.L. to pass an order, and his representation was disposed of vide communication dated 03.06.2004 rejecting his claim for back wages/salary for the period of conviction. The said communication dated 03.06.2004 as well as the order of dismissal dated 06.07.1999 was under challenge in this Court in W.P.(S) No. 3176 of 2004 (Binod Kumar Singh Vs. Coal India Ltd, Kolkata and Ors.). The Hon'ble writ court was of the view that denial of back wages and other service benefits to the said petitioner was not justified and accordingly, the dismissal order as well as the communication dated 03.06.2004 was set-aside 4 and a direction was issued to pay back wages and other service benefits to the said petitioner. However, the same judgement of learned writ court was subject matter of challenge in L.P.A. No. 530 of 2006 wherein this Court observed that the said employee namely Binod Kumar Singh had attained the age of superannuation and the question of reinstatement did not arise. However, because of the judgement of acquittal, the writ petitioner namely Binod Kumar Singh was found to be entitled to his retiral benefits and considering the entire facts and circumstances of the case, 50 percent back wages for the period he remained out of service, was granted to meet the ends of justice.
9. The learned counsel for the petitioner has submitted that the case of the writ petitioner is on similar footing as that of Binod Kumar Singh.
10. The learned counsel has also submitted that the petitioner was not named in the First Information Report and upon perusal of the judgement passed in Cr. Rev. No. 545 of 2006 decided on 16.04.2009, it is apparent that the petitioner was acquitted as the prosecution could not prove the case beyond the shadow of all reasonable doubt.
11. The learned counsel has referred to the judgement passed by the Hon'ble Supreme Court reported in (2013) 10 SCC 324 (Deepali Gundu Surwase Vs. Kranti Junior Adhyapak Mahavidyalaya (D. ED.); (1996) 11 SCC 603 (Ranchhodji Chaturji Thakore Vs. Superintendent Engineer, Gujarat Electricity Board, Himmatnagar (Gujarat) and Anr.) and 2006 (4) JCR 508 (Binod Kumar Singh Vs. Coal India Ltd. and Ors.). The learned counsel has also submitted that admittedly no departmental proceeding was initiated and the petitioner was dismissed from service only on account of the fact that he was convicted in the criminal case and the petitioner having acquitted in the criminal case ultimately by this Court in 5 criminal revision and the case of the petitioner being similarly situated as that of Binod Kumar Singh as both the persons i.e. the present petitioner as well as Binod Kumar Singh were accused in the same criminal case, the same relief as has been granted to Binod Kumar Singh by the Division Bench in L.P.A. No. 530 of 2006, may be granted to the petitioner. Arguments of the Respondents.
12. The learned counsel appearing on behalf of the respondent-C.C.L., on the other hand, has submitted that the impugned order is a well-reasoned order and the respondent no. 1 has exercised his discretion in the matter of grant of back wages to the petitioner and there is no illegality in the impugned order and therefore, it does not call for any interference.
13. The learned counsel for the respondents has further submitted that the petitioner in Cr. Rev. No. 545 of 2006 was granted the benefit of doubt and therefore also, he is not entitled to any back wages. The learned counsel submits that the petitioner may not be granted the same relief as that of Binod Kumar Singh in L.P.A. No. 530 of 2006. He has further referred to the judgements passed by Hon'ble Supreme Court reported in (2007) 1 SCC 324 (Banshi Dhar Vs. State of Rajasthan and Anr.); (2009) 6 SCC 791 (Basanti Prasad Vs. Chairman, Bihar School Examination Board and Ors.) and (2019) 18 SCC 814 (Management of Regional Chief Engineer, Public Health and Engineering Department, Ranchi Vs. Their Workmen represented by District Secretary) and submitted that in the judgement which is reported in (2007) 1 SCC 324 (supra), it has been held that grant of back wages is not automatic and the present case relates to involvement of the petitioner in grant of illegal appointment to 13 persons and therefore, the impugned order does not call for any interference. The learned counsel submits that under similar circumstances, the Hon'ble 6 Supreme Court in the aforesaid case, where the employee had retired prior to his acquittal, did not find it proper to grant him back wages although he was entitled for payment of retiral benefits.
14. The learned counsel for the respondents- C.C.L. has further submitted that a counter-affidavit has been filed in the present case which is dated 12.04.2018. In the said counter- affidavit, it has been mentioned that so far as the claim of pension is concerned, as the petitioner was terminated on 21.12.1998, he is required to deposit his contribution at the rate of 2% along with interest for the purposes of becoming eligible for claiming pension and the said amount has been calculated to be Rs. 2,13,475/- and the petitioner was requested to submit the said amount vide letter dated 01.05.2017, but till date, he has not deposited the said amount and in absence of such deposit, he is not eligible for claiming pension. The learned counsel for the respondents-C.C.L. has also referred to para 11 of the said affidavit to submit that it is the duty and responsibility of the petitioner to submit the application for pension along with the amount of Rs. 2,13,475/- in the prescribed format and he submits that if such an application is filed, the same will be duly forwarded to the concerned authority i.e. Coal Mines Provident Fund and then, the petitioner will be entitled for payment of pension, if otherwise eligible.
15. The learned counsel for the respondents-C.C.L. has submitted that the pension of the petitioner has not been forfeited and the issue involved in the present case is as to whether the petitioner would be entitled to any back wages on account of his acquittal from the criminal case after his retirement. The learned counsel also submitted that the petitioner was simply given the benefit of doubt in the criminal revision application and accordingly, the case of the petitioner is distinguishable from the case of Binod Kumar Singh.
7Findings of this Court
16. However, during the course of hearing, it is not in dispute that against the judgement passed in the case of Binod Kumar Singh in L.P.A., was subject matter of appeal before the Hon'ble Supreme Court in S.L.P. No. 3959 of 2007 and the same has been dismissed. It is further not in dispute during the course of hearing that the petitioner as well as Binod Kumar Singh were co-accused in the same case and Mr. Binod Kumar Singh was acquitted by the appellate court and the petitioner was acquitted by the revisional court and both were acquitted after their date of superannuation. It is further not in dispute that no disciplinary proceeding as such was initiated either against the petitioner or against Binod Kumar Singh and the only reason for their dismissal was their conviction in the criminal case. It is further not in dispute that both the petitioner as well as Binod Kumar Singh were not named accused in the First Information Report though both of them faced the trial.
17. Upon perusal of order dated 16.04.2009 passed in Cr. Rev. No. 545 of 2006 in the case of the petitioner, which has been annexed as Annexure-5 to the present writ petition, it appears that this Court considered the evidence of P.W. 2 and P.W. 5 and recorded a finding that though the Bonus register and B Form register were always lying with the petitioner, but at the same time, those registers were kept in an open rack not under the personal custody or under lock and key of the petitioner as because a number of clerks used to deal with the said registers. This Court also recorded that mines inspector also used to handle those registers. In this view of the matter, this Court in criminal revision was of the view that it cannot be said that the said registers were in exclusive possession and custody of the petitioner for all times and therefore, there was some doubt whether the petitioner had any knowledge regarding the manipulation in these registers and he was in conspiracy in 8 maneuvering in the aforesaid two registers i.e. B form register and Bonus register. In this background, this Court was of the view that the prosecution has not been able to prove the case against the petitioner beyond shadow of reasonable and probable doubts.
18. This Court finds that the revisional court, while acquitting the petitioner, did not find any clinching evidence against the petitioner and the registers which were said to be manipulated, were found not to be in exclusive possession of the petitioner. It is further not in dispute that in spite of the fact that the allegation against the petitioner was in relation to manipulation of the said records for the purposes of illegal appointments, but no departmental proceeding was ever initiated against the petitioner although the criminal case was instituted as back as in the year 1984 and the petitioner has attained the age of superannuation on 31.01.2009. In the judgement passed by the Hon'ble Supreme Court in the case of (2007) 1 SCC 324 (Banshi Dhar Vs. State of Rajasthan and Another), the Hon'ble Supreme Court has categorically held in para 9 that there can be no hard-and-fast rule in regard to grant of back wages and each case has to be determined on its own facts. In the said case, a grave charge of criminal misconduct was made against the petitioner for taking illegal gratification in which a trap was laid and the petitioner was convicted under the provisions of Prevention of Corruption Act as well as Section 161 of Indian Penal Code. However, he was acquitted subsequently. The Hon'ble Supreme Court also considered the judgement passed by the Hon'ble Apex Court reported in (1996) 11 SCC 603 (supra) and was of the view that grant of back wages is not automatic and considering the fact that on account of acquittal, the appellant before the Hon'ble Supreme Court was paid the retiral benefit, the Hon'ble Supreme Court declined to grant back wages to the appellant.
919. This Court finds that the case of the petitioner is similarly situated as that of Binod Kumar Singh and the only distinction is that the petitioner was acquitted at the stage of Criminal Revision and Binod Kumar Singh was acquitted by the appellate court. The writ court had set-aside the order of termination and had allowed full back wages to Binod Kumar Singh and the Hon'ble Division Bench of this Court in L.P.A. No. 530 of 2006 was of the view that question of reinstatement of Binod Kumar Singh did not arise as he had attained the age of superannuation but because of judgement of acquittal in the criminal case he will be entitled to his retiral benefits and considering the facts and circumstances of the case and to meet the ends of justice, has exercised their discretion to grant 50% back wages for the period he remained out of service. The Hon'ble Division while passing the aforesaid judgement recorded at para 6 of their judgement recorded as under: -
"6. As noticed above, the prosecution was launched not by the employer but by the CBI and the investigation was carried out by the said agency. FIR was also lodged not by the employer but by the authorities of CBI. It was only because of the conviction of the Respondent which amounted to misconduct under the Conduct, Discipline and Appeal Rules, 1978, he was dismissed from service. In our view, therefore, Respondent, as a matter of Right, cannot and shall not be entitled to entire back wages for the period he was out of service because of his conviction."
20. In view of the fact that the case of the petitioner is similarly situated as that of Binod Kumar Singh, the petitioner is entitled to similar relief as that of Binod Kumar Singh. Accordingly, the order of termination dated 30.10.2009 is hereby set-aside and as the petitioner had already attained the age of superannuation on the date of his acquittal in the criminal case, he cannot be reinstated in service. However, because of the judgement of acquittal, the petitioner would be entitled to retiral benefit as per law upon deposit of the aforesaid amount and filling up the necessary forms as pointed out by the learned counsel for the respondents. Further, taking 10 into consideration the totality of the facts and circumstances of this case and in view of the aforesaid relief granted to Binod Kumar Singh in L.P.A. No. 530 of 2006, grant of 50% back wages for the period the petitioner remained out of service, will meet the ends of justice. Accordingly, the impugned order dated 30.10.2009 refusing to give back wages to the petitioner for the period from 21.07.1999 to 31.01.2009, during which he did not work, is hereby set-aside and the petitioner would be entitled to 50% back wages for the said period.
21. The 50% back wages be calculated and paid to the petitioner by the respondents within a period of four months from the date of filing of a representation by the petitioner along with a copy of this order.
22. With the aforesaid observations and directions, the present writ petition is disposed of.
(Anubha Rawat Choudhary, J.) Pankaj/Saurav