Central Administrative Tribunal - Delhi
Balwan Singh vs M/O Defence on 3 September, 2024
1
OA No.1622 /2021
Court No.2 (item No.31)
Central Administrative Tribunal
Principal Bench
OA No. 1622/2021
Reserved on:08.08.2024
Pronounced on : 03.09.2024
Hon'ble Mr.R.N. Singh, Member (J)
Hon'ble Mr. Rajinder Kashyap, Member (A)
Balwan Singh, aged 60 years, Group 'C'
S/o Shri Nahar Singh
Resident of Village Judola
District Gurugram, State Haryana
- Applicant
(Through Advocate: Mr.Sukh Dev Singh)
Versus
1. Union of India
Through its Secretary to Government of India
Ministry of Defence, (South Block)
New Delhi, PINCode- 110001
2. The Director General,
Ordnance Corps,
Ministry of Defence, North Block,
Sena Bhawan, New Delhi.
3. The Brig, OIC Records,
AOC Records, Sikandrabad (A.P.) C/o 56 APO
PINCode-900453
4. The Commandant
Central Ordance Depot.
C/o 56 APO,
Delhi Cantt. PINCode-900106
-Respondents
(Through Advocate: Mr. Ranjan Tyagi)
2
OA No.1622 /2021
Court No.2 (item No.31)
ORDER
By Hon'ble Mr. Rajinder Kashyap, Member (A):-
The applicant has filed present Original Application under Section 19 of the Administrative Tribunals Act., seeking the following relief(s):-
"a) To call for the records of the case.
b) Quash and set aside the impugned order date 24"
August,2020 issued by the respondent and Quash and set aside the impugned of memorandum dated 27/02/2020 issued by the respondent to the extent for not granting salary for the period from 14 June. 2013 to 16h October, 2019
c) To direct the Respondents to Payment of salary from back salary w.e.f. 14" June, 2013 to 16" October, 2019 on account of acquittal of Hon'ble High Court dated 17/10/2019.
d) To direct the Respondents to Salary from the date of reinstatement i.e. 17/10/2019 till his retirement on 31/07/2020 as agreed by respondents.
e) To direct the Respondents to grant of increments, pay revision, promotion and post retirement benefits, leave encashment, gratuity, and other consequential benefits accrued from time to time.
f) To direct the Respondents to grant of provisional pension as per rules and payment of above said benefits along with interest @ 12 per cent per annum.
g) To issue any other order of direction which this Hon'ble Tribunal may deem fit and proper in the peculiar facts and circumstances of the case to which the applicants may not have prayed inadvertently may also kindly be passed in favour of the applicant.
h) Costs of the application be awarded in favour of the applicants 3 OA No.1622 /2021 Court No.2 (item No.31)
2. The applicant was working under the respondents. The applicant states that there was a family dispute between the brothers and cousins over the property which resulted into clash between the parties. An FIR was lodged against the applicant and his brother. A conviction order was passed by the Court of Learned SDJM Pataudi, Gurgoan on 01.04.2013. The applicant and the other challenged the said order before the Learned Additional Session Judge Gurgoan and at last they filed Criminal Misc. Application No. 2618/2016 before the Hon'ble Punjab and Haryana High Court at Chandigarh in which the Hon'ble Court of Punjab and Haryana vide its judgment dated 17.10.2019 passed the following order:-
"In view of the same, the present revision is accepted and the judgments and order passed by the Courts below are set aside. The offences, on the basis of the compromise, are compounded and as consequence thereof, the petitioners are acquitted of the charges framed against them."
3. The applicant states that he was involved in a criminal case in the family dispute in which he was convicted by the lower court. Based on which the respondents removed the applicant from service without any charge sheet or enquiry. However, based on the judgment dated 17.10.2019 of the Hon'ble High 4 OA No.1622 /2021 Court No.2 (item No.31) Court of Punjab and Haryana at Chandigarh, the applicant was reinstated into the service from 17.10.2019. The respondents, vide their letter dated 27.02.2020 asked the respondents to submit representation on the proposal of regularization of the period. The applicant has submitted his representation on 18.07.2020 wherein he requested that the order of no pay and allowances from the date of removal from service issued by the Disciplinary Authority (offig. Comdt.) vide COD Delhi Cantt. order dated 14.6.2013 (i.e. for the period from 14.06.2013 to 16.10.2019) may kindly be withdrawn and the applicant be granted full back wages from 14.06.2013 to 16.10.2019 and also the salary for the period from 17.10.2019 to 31.08.2020 i.e. from the date of reinstatement till the date of his retirement along with his continuity in service, increments other benefits of pay revision, promotion and post retirement benefits, gratuity and other consequential benefits accrued from to time. He further states that he retired from service on 31.07.2020. The alleged criminal cases did not relate to any misconduct done by the applicant in his official capacity during the entire tenure of service. He 5 OA No.1622 /2021 Court No.2 (item No.31) states that he was reinstated by the respondents w.e.f. 17.10.2019. No back wages for the intervening period w.e.f. 14.6.2013 to 16.10.2019 was paid to him nor was he paid wages from the date of his reinstatement into the service w.e.f. 17.10.2019 till his retirement on 31.07.2020. The applicant further states that he was not involved in embezzlement of funds or illegitimate demand and acceptance of gratification or any act of omission while working with the respondents during the long period of service. Rather, he was wrongly implicated in a criminal case arising out of a family dispute in which he was convicted by the lower court but the Hon'ble High Court of Punjab and Haryana at Chandigarh honorably acquitted the applicant. Therefore, the applicant is entitled to full back wages from 14.6.2013 to 16.10.2019 i.e. from the date of removal from service to the date of reinstatement into the service. The applicant states that despite submitting his representation to the respondents, the respondents have neither settled his retiral benefits including the back wages for the period for the period from 14.06.2013 to 16.10.2019 with his continuity in service nor increment and other benefits and post 6 OA No.1622 /2021 Court No.2 (item No.31) retirement benefits which have accrued to him from time to time have been given at the time of retirement. He also stated that even the wages for the period from 17.10.2019 to 31.07.2020 have not been paid. The applicant states that consequent upon acquittal of applicant by the Hon'ble High Court of Punjab and Haryana at Chandigarh vide its judgment dated 17.10.2019, the respondents passed an order dated 24.08.2020 vide which the earlier order dated 14.06.2013 (removal from service) was set aside. The respondents took a decision not to pay back wages for the above mentioned period. The contention of the applicant is that when the order of removal from service was set aside and the period of absence from duty was regularized, the applicant is entitled to the wages for the entire intervening period i.e. from 14.06.2013 till his retirement. The applicant states that the respondents did not take any step even after his retirement on 31.07.2020 to clear his legal dues nor his back wages nor his wages after retirement and retiral benefits. The applicant filed OA No. 1367/2021 before this Tribunal. On 05.08.2021, this Tribunal was pleased to dismiss the above mentioned OA as 7 OA No.1622 /2021 Court No.2 (item No.31) withdrawn with permission to file a better application (Original Application) as the applicant did not pray for quashing the order dated 24.08.2020 and a memorandum dated 27.02.2020 in the payer clause of the said OA. Accordingly, the applicant has filed the present Original Application with the aforementioned prayer.
4. The respondents have filed reply on 13.04.2022. They have stated that the applicant was appointed as a laborer in Central Ordnance Depot., Delhi Cantt. He was promoted to the post of highly skilled on 01.07.2013. The applicant was detained under custody w.e.f. 10.06.2003, vide FIR No. 54 dated 04.06.2003. The applicant remained under deemed suspension from service on 11.09.2003. He was released on Bail and was also allowed to join duty on 17.10.2003. They contend that the applicant was duty bound to inform the Administrative Authority about his arrest well within the time. He failed to do so. Therefore, they awarded a penalty of stoppage of two increments without recurring effect. They further state that when the criminal case against the applicant was under trial he was granted a higher pay scale w.e.f. 01.07.2010. 8 OA No.1622 /2021 Court No.2 (item No.31) They also state that the applicant was convicted by the SDJM, Pataudi, Gurgoan and, therefore, he was removed from service on 14.06.2013. The applicant filed an appeal before the Hon'ble Punjab and Haryana High Court at Chandigarh which was decided on 17.10.2019. In the said decision, Hon'ble High Court of Punjab and Haryana acquitted the applicant. The competent authority issued a memorandum dated 27.02.2020 to the applicant to represent his case. The applicant reported for duty on 02.06.2020 and was also allowed to join duty and subsequently on 01.08.2020 he retired from service. The applicant submitted his representation on 18.07.2020, a final order was passed by the competent authority on 24.08.2020. The respondents state that the service record of the applicant was forwarded to the audit authority for final audit for granting of retirement dues. The relevant portion of the said reads as under:-
"It is submitted that after retirement of the applicant, service records of the applicant were forwarded to audit authority for final audit for grant of retirement dues. It is pertinent to mention here that the Audit Authority during audit observed that during currency of Trial of Criminal Case applicant has been granted two promotional benefits which are against the existing Rules and 9 OA No.1622 /2021 Court No.2 (item No.31) further directed to rectify the mistake for grant of correct payment of serving period and retirement dues. Thereafter case was processed with the competent authority to hold review DPC. On receipt of orders, Review DPC has been convened to amend the date of promotion.
It is submitted that as multiple channel/ authorities are involved for finalizing the case of the applicant which may take some more time. The Hon'ble Tribunal is requested to grant minimum 8 weeks time to file final reply against the subject OA."
5. The respondents state that the applicant has suppressed many facts in his OA and the present OA deserves to be out rightly dismissed on this ground alone. The applicant was sentenced by the Hon'ble Sub Divisional Judicial Magistrate, Pataudi Gurgaon under section 324/326/452/506 and 34 of IPC vide order dated 01.04.2013 for three years rigorous imprisonment. They further state that the case of the applicant was decided by the Hon'ble High Court of Punjab and Haryana at Chandigarh in CRR-2618-2016 on 17.10.2019 on compromise between the parties without entering into the merits of the case. They state that in view of the above, the applicant is not entitled to back wages from 14.06.2013 to 16.10.2019 as he was not exonerated by the charges proved before the 10 OA No.1622 /2021 Court No.2 (item No.31) Hon'ble S.D.J.M., Pataudi, Gurgoan and was awarded rigorous imprisonment. Therefore, the claim of the applicant to back wages is wrong, illegal, incorrect and severe loss to the State. While giving para wise reply on para 2 & 3 of the OA, the respondents state that the claim for retirement dues is not refused by the respondents and the case of the applicant is under active progress for grant of correct wages and retiral benefits. In pursuance to the order of the Hon'ble High Court of Punjab and Haryana at Chandigarh against order of S.D.J.M., Pataudi, Gurgoan, a memorandum was issued to the applicant on 27.02.2020 asking him to make representation on the proposed regularization of the period. On receipt of the representation of the applicant, the competent authority issued a final order dated 24.08.2022 wherein it has been made clear that why principal of 'No Work No Pay' under the provisions of FR 54 (2w), (3), (4) & (5) should be taken and regularization of period from time to time 14.06.2013 to 16.10.2019 vide order dated 24.08.2020. The respondents also state that the applicant was reinstated in service w.e.f. 17.10.2019 i.e. the date of order of Hon'ble Punjab and Haryana High Court at 11 OA No.1622 /2021 Court No.2 (item No.31) Chandigarh. The applicant joined the duty on 02.06.2020 due to lockdown imposed by the Government of India in view of COVID-19. The salary of the applicant could not be fixed as the audit authority has observed irregularities in the service record of the applicant and directed to regularize the same. The delay in finalization of the pay fixation of the applicant is due to the multiple channels involved in the decision making process. They further state that as per the provisions of FR 54 (2w), (3), (4) and (5) back wages for the period 14.06.2020 to 16.10.2019 has correctly been denied as 'No Work No Pay'. Since the applicant has responded to the memorandum dated 27.02.2020 after his retirement, therefore, a final order dated 24.08.2020 could be passed and the process for fixation of pay was initiated. The respondents state that the judgments cited by the applicant are not applicable as the same are distinguishable on the basis of the facts and circumstances of the present case.
6. Heard the learned counsel for the parties. The learned counsel for the applicant stated that the applicant had good conduct during his service career and he has worked in dutiful manner. The Hon'ble 12 OA No.1622 /2021 Court No.2 (item No.31) High Court of Punjab and Haryana at Chandigarh has acquitted him from the charge, hence, the applicant is entitled to retiral benefits and the pay and allowances for the period from 14.06.2013 to 16.10.2019 and till his retirement with all retirement dues.
7. For facility of reference, it would be appropriate to quote the relevant portion of the judgment dated 17.10.2019 of Hon'ble High Court of Punjab and Haryana at Chandigarh as under:-
"the trial Court vide which the petitioners were held guilty for the offences punishable under Sections 324, 326 and 452 read with Section 34 IPC as well as the order of sentence dated 2.4.2013 vide which the petitioners were initially sentenced to undergo rigorous imprisonment for a period of three years and to pay a fine of Rs.2,000/- each as well as the judgment dated 10.5.2016 passed by the lower appellate Court vide which the lower appellate Court upheld the conviction of the petitioners under Sections 326, 324 and 452 read with Section 34 IPC. However, the sentence was reduced to the period already undergone by the appellants keeping in view the compromise entered between the parties.
The appellate Court recorded a finding that since the petitioners/accused were in custody from 10.6.2003 to 18.9.2003, therefore, the sentence was reduced to the period already undergone by them.
During the pendency of the present revision petition, on a representation made by the parties that they are closely related to each other as the father of the petitioners/accused and the father of the injured/complainant are real brothers and they 13 OA No.1622 /2021 Court No.2 (item No.31) have effected a valid and legal compromise, both the parties were directed to appear before the Chief Judicial Magistrate, Gurugram for recording their respective statements in support of the compromise.
The Chief Judicial Magistrate, Gurugram vide his report dated 5.9.2019 has formed an opinion based on the statements of the accused persons i.e. petitioners, namely, Balwan Singh, Pardeep Kumar and Karan Singh, sons of Nahar Singh and on the basis of the statement of the complainant/injured-Jagbir Singh son of Azad Singh that a valid and legal compromise is effected between the parties, which is voluntarily without any pressure or coercion and both the parties have also recorded their statements on their own volition. The report of the Chief Judicial Magistrate is supported by the original statements of the complainant as well as the accused persons. Both the parties were duly identified by the 2 of 4 counsels representing them in the trial Court and the compromise and affidavit of the complainant are attached with the report as Ex.C1 and Ex.C2, respectively.
Counsel for the petitioners has submitted that the FIR pertains to the year 2003 and except this incident, the petitioners are not involved in any other case and subsequent to this incident, they have not repeated any such offence, after they were released on bail by the trial Court as well as by the learned lower Appellate Court, they have not misused the concession. Counsel for the petitioners has also argued that despite the lapse of 16 years, no untoward incident has taken place between the parties. He has further stated that the parties are closely related, residing in the same vicinity in the village and are maintaining peace and harmony in their brotherhood.
Counsel for the petitioners has further argued that petitioner No.1-Balwan Singh, is a vehicle mechanic in the Central Ordinance Depot, Delhi Cantt., petitioner No.2-Pardeep Kumar is a retired Hawaldar from Indian Army and petitioner No.3 is 14 OA No.1622 /2021 Court No.2 (item No.31) a teacher in Municipal Corporation, Delhi. Counsel for the petitioners also submit that though petitioner No.2-Pardeep Kumar has retired from the Indian Army yet on account of his conviction, the pensionary benefits have not been granted to him. Counsel for the petitioners has also referred to Section 320(8) of the Code of Criminal 3 of 4 Procedure which provides that the composition of an offence under this Section shall have the effect of acquittal of the accused once the offence has been compounded. Counsel for the petitioner has further argued that in view of the compromise between the parties and also in view of the good conduct of the petitioners, the offences be allowed to be compounded as the complainant has left with no grievances against the petitioners and both the parties, being in close relations are living in peace and harmony.
Counsel for complainant-Jagbir Singh has not disputed the factual position as stated by the counsel for the petitioners.
The learned State counsel has also not disputed the factual position that the compromise has been effected between the parties.
In view of the same, the present revision petition is accepted and the judgments and order passed by the Courts below are set aside. The offences, on the basis of the compromise, are compounded and as a consequence thereof, the petitioners are acquitted of the charges framed against them.
The present petition is, accordingly, disposed of."
8. The learned counsel for applicant relied upon the following judgments:-
(a) CWP No. 23306 of 2010 (O&M) decided on 11.07.2012 in the matter of Kulwant Singh vs. State of Punjab & ors., the Hon'ble High Court 15 OA No.1622 /2021 Court No.2 (item No.31) of Punjab & Haryana at Chandigarh has held as under:-
"... A constitution Bench of the Hon'ble Apex Court in case of Union of India vs. Tulsi Ram Patel reported as 1985 (2) S.L.R. 676 has already dealt with such precise question and it was held as under:-
Where a disciplinary authority comes to know that a government servant has been convicted on a criminal charge, it must consider whether his conduct which has led to his conviction was such as warrants the imposition of a penalty and, if so, what that penalty should be. For that purpose, it will have to peruse the judgment of the criminal court and consider all the facts and circumstances of the case. Once the disciplinary authority reaches the conclusion that the government servant's conduct was such as to require his dismissal or removal from service or reduction in rank he must decide which of these three penalties should be imposed on him. This too it has to do by itself and without hearing the government servant concerned by reason of the exclusionary effect of the second proviso. However, a conviction on a criminal charge does not automatically entail dismissal, removal or reduction in rank of the government servant concerned and, therefore, it is not mandatory to impose any of these major penalties."
(b) CWP No.759/2004 decided on 20.02.2006 in matter of Hari Ram vs. Dakshin Haryana Bijli Vitran Nigam Ltd. and anothers; the Hon'ble 16 OA No.1622 /2021 Court No.2 (item No.31) High Court of Punjab and Haryana at Chandigarh has held as under:-
"(xiii) xxx xxx xxx The law has further been clarified by the Supreme Court in the Union of India v.
Tulsi Ram Patel, AIR 1985 SC 1416. In the aforesaid case, it has been held as under:-
"Where a disciplinary authority comes to know that a government servant has been convicted on a criminal charge, it must consider whether his conduct which has led to his conviction was such as warrants the imposition of a penalty and, if so what that penalty should be. For that purpose. it will have to peruse the judgment of the criminal court and consider all the facts and circumstances of the case. Once the disciplinary authority reaches the conclusion that the government servant's conduct was such as to require his dismissal or removal from service reduction in rank, he must decide which of these three penalties should be imposed on him. This too it has to do by itself and without hearing the government servant concerned by reason of the exclusionary effect of the second proviso. However a conviction on a criminal charge does not automatically entail dismissal, removal or reduction in rank of the government servant concerned and, therefore it is not mandatory to impose any of these major penalties."
Keeping in view the aforesaid observations of the Supreme Court, we have examined the record produced by the respondents. A perusal of the record shows that the respondents have not paid any attention to 17 OA No.1622 /2021 Court No.2 (item No.31) the conduct which led to the conviction of the petitioner as required by law. It was necessary for the respondents to examine the judgment of the Criminal Court and to assess the conduct of the petitioner to reach a conclusion as to whether it would be undesirable to keep him in service. The action of the management / employer must be based on relevant considerations. The impugned order in our opinion suffers from the vice of non-application of mind.
Consequently, we are of the opinion that the impugned order deserves to be quashed on this short ground."
(c) CWP No. 7644 of 2007 decided on 09.11.2009 in the matter of Man Singh vs. State of Haryana and others; the Hon'ble High Court of Punjab and Haryana at Chandigarh has held as under:-
"Even in the case of Union of India and another Vs. Tulsi Ram Patel, AIR 1985 SC 1416, the Hon'ble Supreme Court held as under:-
"Where a disciplinary authority comes to know that a government servant has been convicted on a criminal charge, it must consider whether his conduct which has led to his conviction was such as warrants the imposition of a penalty and, if so, what that penalty should be. For that purpose, it will have to peruse the judgement of the criminal Court and consider all the facts and circumstances of the case. Once the disciplinary authority reaches the conclusion that the government servant's conduct was such as to require his dismissal or removal from service or reduction in rank, he must decide which of these three penalties should be imposed on him. This too it has to do by 18 OA No.1622 /2021 Court No.2 (item No.31) itself and without hearing the government servant concerned by reason of the exclusionary effect of the second proviso. However, a conviction on a criminal CIVIL WRIT PETITION NO.7644 OF 2007 :{ 7 }:charge does not automatically entail dismissal, removal or reduction in rank of the government servant concerned and, therefore, it is not mandatory to impose any of these major penalties."
Reference here can also be made to other cases like The Divisional Personnel Officer, Southern Railway Vs. T.R.Chellappan, (1976) 3 SCC 190, Union of India Vs. V.K.Bhaskar, (1997) 11 SCC 383, Rajinder Singh Vs. Board of School Education Haryana and another, 1996 (4) RSJ 417 and Kulwant Singh Vs. The Deputy District Primary Education Officer, Gurdaspur, 1997 (1) SCT
282. In T.R.Chellappan's case (supra), it is observed that punishing authority must consider as to what penalty, if at all, should be imposed on the delinquent employee in view of his conviction. It is then observed that the punishing authority will have to take into account the entire conduct of the employee, namely, the gravity of the misconduct and the impact the same is likely to have on the administration. In V.K.Bhaskar's case (supra), it is noticed that it should always be determined after reading the order whether it is passed only on the basis of conviction of an employee or after considering the nature of conduct. A Division Bench of this court in Rajinder Singh's case (supra) made very pertinent observation to the effect that in cases involving moral turpitude, the employer may be justified in taking the view that the employee has lost his right to remain in service, but may choose to impose a comparatively lesser punishment. As per the Division Bench, this has to depend on the objective application of mind by the employer to the facts of the given case. Apparently, observations were made in a case where the conviction simplicitor was made the basis of dismissal of the employee from the service. The court did not find anything on record to indicate that respondents had considered the conduct of the 19 OA No.1622 /2021 Court No.2 (item No.31) petitioner therein which led to his conviction. Somewhat similar view has been taken in the case of Hari Ram (supra) by holding that there can be no automatic dismissal from service merely on conviction and it is obligatory upon the competent authority to apply its mind to the judgment of the criminal court and other material to reach a definite conclusion that it would not be desirable to retain an employee in service on account of his conviction. In Kulwant Singh's case (supra), the dismissal order was set aside as it was passed on the basis of a conviction for offences under Sections 326/324/ 34 IPC by holding that offences were not involving moral turpitude. It is, thus, clear that the requirement of law while directing dismissal of the petitioner has not been undertaken. The petitioner simply has been dismissed from service upon his conviction, which may not be permissible. Even his unblemished service of nearly 40 years was not given any consideration whatsoever while passing the impugned order. The punishing authority would be under legal obligation to consider all these aspects while passing the order of dismissal. The impugned order of dismissal, as such, cannot be sustained and the same is set- aside. The respondents would re- consider the entire case afresh in terms of the law laid down and as noticed above and pass a fresh order in accordance with law. It would be for the respondents to consider the case and see if the conviction would deserve the penalty of dismissal, removal or reduction in rank or any other penalty would suffice. Let the needful be done within a period of three months from the date of receipt of copy of this order."
(d) CWP No.3495 of 1995 decided on 19.09.1996 in the matter of Rajinder Singh vs. Board of School Education Haryana and Another; the 20 OA No.1622 /2021 Court No.2 (item No.31) Hon'ble Punjab and Haryana High Court at Chandigarh has held as under:-
In Om Prakash v. Director, Postal Service (supra), a Full Bench of this Court interpreted the relevant rules and held that what the employer is required to consider is whether the conduct of the delinquent employee which led to his conviction is such as to render his further retention in public service undesirable and this obviously involves application of mind to the relevant factors like past record of the employee, length of service and the nature of the crime committed by him. The Full Bench further held that if the employer imposes a major penalty without considering the conduct of the employee, which led to this conviction, the order of punishment is liable to be set aside.
In addition to what the Full Bench has held, we may observe that tin cases involving moral turpitude, the employee may be justified in taking the view that the employee has lost his right to remain in service but in such cases the employer may choose to impose a comparatively lesser punishment. However, that will depend on an objective application of mind by the employer to the facts of a given case. What has happened in this case is that the conviction simplicitor has been made basis for dismissing the petitioner from service. There is nothing on the record to show that respondent no.1 considered the conduct of the petitioner, which led to his conviction. There is also nothing on the record to show that the employer applied its mind to the service record of the petitioner and the nature of the crime committed by him with particular reference of its impact on the service of the petitioner. Thus, the present one is a clear case of non-application of mind and, therefore, on this ground alone, the impugned order is liable to be quashed.
21OA No.1622 /2021 Court No.2 (item No.31)
(e) CWP No. 9270 of 2014 decided on 26.02.2020 in the matter of Tarsem Singh vs. State of Punjab and others; the Honble High Court of Punjab and Haryana at Chandigarh has held as under:-
"It is the contention of learned counsel for the petitioner, placing reliance upon the judgment passed by the Supreme Court in Union of India vs. Tulisi Ram Patel 1985 (2) SLR 576, that mere because an employee has been convicted and sentenced should not automatically entail dismissal from service as has happened in the case of the petitioner. He has also placed reliance upon the judgments of the Court in Hari Ram vs. Dakshin Haryana Bijli Vitran Nigam Ltd., 2006 (2) SCT 112 and Kaur Singh and another vs. Punjab State Electricity Board and others, 2007(4) SCT 426. Reliance has also been placed upon the judgments passed by this Court in CWP No. 233306 of 2010 titled as Kulwant Singh vs. State of Punjab and others, decided on 11.07.2012 (Annexure P-9) and CWP No. 7644 of 2007 tilted as Man Singh vs. State of Haryana and Others, decided on 09.11.2009 (Annexure P-10)
3. Learned counsel for the State, on the other hand, contends that not only the Punishing Authority but the Appellate Authority has also taken into consideration the contention, as has been raised by the petitioner. He contends that the competent authority applied its mind found that the petitioner having been convicted and sentenced by the Trial Court, which conviction order stands upheld up to the High Court except for reduction n the sentence; the 22 OA No.1622 /2021 Court No.2 (item No.31) involvement of the petitioner in the commission of the offence, therefore, cannot be doubted. He contends that the fact that the petitioner has undergone imprisonment also is not in dispute and the competent authority having considered these aspects has rightly come to a conclusion that the dismissal of the petitioner is in accordance with law and does not call for any lenient view. He, thus, contends that the impugned orders cannot be said to be unsustainable as they are based upon proper appreciation of the fact that the petitioner stands convicted and sentenced for a criminal offence after a trial.
4. I have considered the submission made by learned counsel for the parties and with their assistance, have gone through the records of the case.
5. The principles which are applicable as far as the action to be taken on the basis of an employee having been convicted in a criminal case stands settled by the Hon' ble Supreme Court in Tulsi Ram Patel's case (supra), wherein it has been held as follows:-
"Where a disciplinary authority comes to know that a government servant has been convicted on a criminal charge, it must consider whether his conduct which has led to his conviction was such as warrants the imposition of a penalty and, if so, what that penalty should be. For that purpose, it will have to persue the judgment of the criminal court and consider all the facts and circumstances of the case. Once the disciplinary authority reaches the conclusion that the government servant's conduct was such as to require his dismissal or removal from service or reduction in rank, he must decide which of these three penalties should be imposed on him. This too it has to do by itself and without hearing 23 OA No.1622 /2021 Court No.2 (item No.31) the government servant concerned by reason of the exclusionary effect of the second proviso. However, a conviction on a criminal charge does not automatically entail dismissal, removal or reduction in rank of the government servant concerned and, therefore, it is not mandatory to impose any of these major penalties.
6. Personal of the above would show that merely because an employee has been convicted for a criminal offence would not in itself be a ground for dismissal of an employee unless the competent authority comes to a conclusion that the offence for which the employee has been punished involves moral turpitude and, therefore, is not fit for retention in service. Relying on the said judgment, this Court in the case of Kulwant Singh's case (supra) as also in the case of Man Singh (Supra) in similar circumstances has proceeded to come to a conclusion that the order of dismissal cannot sustain. In the present also, on perusal of the impugned order, it is apparent that the Punishing Authority as well as the Appellate Authority have passed the order of dismissal merely on the ground that the petitioner has been convicted and sentenced in a criminal case without taking into consideration the fact as to whether the said offence would amount to moral turpitude or not. The mandate of the law as settled up to the Hon'ble Supreme Court in Tulsi Ram Patel's case (supra) having not been complied with, the impugned orders cannot sustain and, therefore, deserve to be set aside.
(f) Judgment dated 01.04.2019 of the Hon'ble Supreme Court of India in Civil Appeal No. 3339/2019 (Arising out of SLP (Civil) No. 100 of 24 OA No.1622 /2021 Court No.2 (item No.31) 2016) in the matter of Raj Narain vs. Union of India and others; the Hon'ble Sumprme Court has held 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 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 endeavoured 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."25 OA No.1622 /2021
Court No.2 (item No.31)
9. A perusal of the impugned order dated 24.08.2010 (Annexure A-1) clearly reveals that the conduct of the applicant which has led to his conviction has not been considered and no finding has been recorded by the punishing authority that the conduct of the petitioner has been found to be of such a serious magnitude that it warrants dismissal from service. The judgment of the Criminal Court was required to be read and considered by the competent authority which had passed the impugned order and upon due application of mind it was required to be concluded as to whether the petitioner was worthy of retention in service or if any other suitable punishment was required to be inflicted.
10. Despite position mentioned in para 9 above, the respondents have taken the applicant into service after decision dated 17.10.2019 of the Hon'ble Punjab and Haryana High Court at Chandigarh which acquitted the applicant. The applicant has also submitted representation as required by the respondents on 18.07.2020, a final order was passed by the 26 OA No.1622 /2021 Court No.2 (item No.31) respondents authorities on 24.08.2020. Despite lapse of a period of four years, the applicant has not been given any retiral benefits and even the salary for the period from the date from which he was reinstated in the service till his retirement that is w.e.f. 17.10.2019 to 31.07.2020. The position in this matter is clearly laid down in the order of Hon'ble Supreme Court in the matter of Raj Narayan vs. Union of India (supra) case. We find that the criminal proceeding was initiated against the applicant without any malafide or vexatious intent. In fact in the criminal case lodged by the police against the applicant, he was sentenced to undergo rigorous imprisonment for a period of three years and to pay a fine of Rs. 2000/- (Rupees two thousand only) vide judgment dated 10.05.2016. The lower appellate court upheld the conviction of the applicant under sections 326, 324 & 452 read with section 34 of IPC, however, the sentence was reduced to the period already undergone by the appellant keeping in view the compromise entered between the parties. It is elaborately stated in the judgment dated 17.10.2019 of Hon'ble High Court that the offences, on the basis of compromises, are compounded and as a consequence 27 OA No.1622 /2021 Court No.2 (item No.31) thereof, the petitioners are acquitted of the charges framed against them. The lower appellate court has reduced the punishment imposed upon the applicant in the criminal case based on the compromise arrived between the parties (including the applicant who was accused in the criminal case). The Hon'ble High Court of Punjab and Haryana at Chandigarh in its judgment dated 17.10.2019 has also referred to the compromise entered by the accused (including the applicant) and the criminal case based on the said compromise acquitted the accused including the applicant. It is apparent that the acquittal of the applicant is not on merit. Therefore, the claim of the applicant that he has been acquitted honorably by the Hon'ble High Court is incorrect. The applicant claimed that the alleged criminal case did not relate to any misconduct done by the applicant in his official capacity during the entire period of his service with the respondents is also factually incorrect as the respondents have stated that the applicant suppressed many facts in the OA. It has been stated by them that it came to their knowledge that the applicant was detained under police custody w.e.f. 10.06.2003 in an FIR No. 54 dated 04.06.2003. 28 OA No.1622 /2021 Court No.2 (item No.31) Therefore, the applicant was under deemed suspension from service vide order dated 11.09.2003. While getting released from custody on bail, the applicant was allowed to rejoin duty w.e.f. 17.10.2003 vide order dated 16.10.2003. They further state that the applicant was duty bound to inform the administrative authority about his arrest well within the time but he failed to do so. Therefore, he was awarded a penalty of stoppage of two increments without recurring effect. The above position reveals that the applicant has indulged in misconduct in the past also, therefore, his claim to have rendered an unblemished service is not correct. He has been acquitted of the charge based on the compromise between the parties.
11. In view of the above position, the present Original Application is partially allowed with the following directions:-
a). The applicant is entitled to the payment of salary and allowances from the date of his reinstatement into the service i.e. 17.10.2019 to till his retirement on 31.07.2020. If the applicant is entitled to increment the said increment may 29 OA No.1622 /2021 Court No.2 (item No.31) also be drawn and accordingly salary should be paid. The respondents are directed to pay the salary to the applicant for the above mentioned period within four weeks from the date of receipt of a certified copy of this order.
b). The respondents are directed to decide the post retrial benefits like pension (including provisional pension, leave encashment, gratuity and other consequential benefits accrued to the applicant from time to time) within a period of 12 weeks from the date of receipt of a certified copy of this order. While making payment of post retirement benefits, interest rate as applicable to GPF shall be paid to the applicant.
c). The applicant is not entitled to salary w.e.f.
14.6.2013 to 16.10.2019 on account of his acquittal vide order dated 17.10.2019 of Hon'ble Punjab and Haryana High Court at Chandigarh and we do not intend to interfere with the order dated 24.08.2020 of respondents wherein they have taken a decision on the above mentioned period.
30OA No.1622 /2021 Court No.2 (item No.31)
(d) No order as to the costs. Pending MAs, if any, stand closed.
(Rajinder Kashyap) (R. N. Singh)
Member (A) Member (J)
/mk/