Gujarat High Court
Gujarat Energy Tranmission ... vs Pravin B Raval on 28 August, 2017
Bench: M.R. Shah, B.N. Karia
C/LPA/1234/2016 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS PATENT APPEAL NO. 1234 of 2016
In
SPECIAL CIVIL APPLICATION NO. 9471 of 2014
With
CIVIL APPLICATION NO. 11506 of 2016
In
LETTERS PATENT APPEAL NO. 1234 of 2016
With
SPECIAL CIVIL APPLICATION NO. 1415 of 2016
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE M.R. SHAH sd/
and
HONOURABLE MR.JUSTICE B.N. KARIA sd/
=========================================
1 Whether Reporters of Local Papers may be allowed to see YES
the judgment ?
2 To be referred to the Reporter or not ? YES
3 Whether their Lordships wish to see the fair copy of the NO
judgment ?
4 Whether this case involves a substantial question of law as NO
to the interpretation of the Constitution of India or any
order made thereunder ?
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GUJARAT ENERGY TRANMISSION CORPORATION LIMITED &
3....Appellant(s)
Versus
PRAVIN B RAVAL....Respondent(s)
=============================================
Appearance:
MR DIPAK R DAVE, ADVOCATE for the Appellant(s) No. 1 4
MR DG SHUKLA, CAVEATOR for the Respondent(s) No. 1
=============================================
CORAM: HONOURABLE MR.JUSTICE M.R. SHAH
and
HONOURABLE MR.JUSTICE B.N. KARIA
Date : 28/08/2017
ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE M.R. SHAH) 1.0. As common question of law and facts arise in present Letters Page 1 of 11 HC-NIC Page 1 of 11 Created On Fri Sep 29 23:16:29 IST 2017 C/LPA/1234/2016 JUDGMENT Patent Appeal as well as Special Civil Application, both Letters Patent Appeal as well as Special Civil Application are decided and disposed of together by this common judgment and order.
2.0. Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the learned Single Judge passed in Special Civil Application No. 9471 of 2014, by which, the learned Single Judge has allowed the said Special Civil Application preferred by the respondent and has directed the appellants to pay full back wages from the date of acquittal till the respondent attained the age of superannuation, on subsequently being acquitted, original respondents management Gujarat Energy Transmission Corporation Limited and others have preferred the present Letters Patent Appeal under clause 15 of the Letters Patent.
3.0. The issue involved in Special Civil Application No. 1415 of 2016 with respect to another employee is as similar to that of present Letters Patent Appeal, Special Civil Application No. 1415 of 2016 is ordered to be tagged and heard along with present Letters Patent Appeal. By way of Special Civil Application No. 1415 of 2016, the petitioner employee has prayed for appropriate writ, direction and order directing the respondent authorities to pay terminal benefits including back wages, arrears of wages for the period of suspension etc. 4.0. Heard the learned advocates for the respective parties at length. At the outset, it is required to be noted that in the Letters Patent Appeal as well as Special Civil Application, both the Page 2 of 11 HC-NIC Page 2 of 11 Created On Fri Sep 29 23:16:29 IST 2017 C/LPA/1234/2016 JUDGMENT respective employees who were working with the Electricity Company were facing conviction for the offences under the Prevention of Corruption Act. Considering the relevant Regulation, more particularly, considering GSO7, on their conviction by the competent criminal Court, both of them came to be dismissed from service and on their subsequent acquittal by the High Court by giving benefit of doubt in one case and by acquitting in another case, the concerned employees challenged the order of termination on the ground that basis for termination i.e. conviction do not stand / exists. In the meantime, the respective petitioners attained the age of superannuation and therefore, the question arose with respect to retirement benefits / pensionary benefits as if order of termination do not exists and also back wages for the period between the date of acquittal till age of superannuation.
4.1. That by impugned judgment and order, the learned Single Judge has allowed the Special Civil Application No.9471 of 2014 and has directed the employer to pay retirement benefits / pensionary benefits as if order of termination do not exist and also directed the employer to pay back wages for the interregnum period i.e. for the period between date of termination till employee attained the age of superannuation. The same is subject matter of Letters Patent Appeal No. 1234 of 2016.
5.0. Shri D.R. Dave, learned advocate and Shri Hasurkar, learned advocate have appeared on behalf of the Electricity Company and employer. Shri D.G. Shukla, learned advocate has appeared on behalf of the respective employees. It is vehemently submitted by Page 3 of 11 HC-NIC Page 3 of 11 Created On Fri Sep 29 23:16:29 IST 2017 C/LPA/1234/2016 JUDGMENT learned advocate for the employer that as such as per the GSO7, a person who is convicted by the competent Criminal Court is ineligible to become employee of the electricity company and on the conviction their services is liable to be terminated as they were thereafter disqualified to be continued in service. It is submitted that therefore on conviction, the concerned employees could not have been continued in service. It is submitted that therefore, the employer was justified in terminating the services of the concerned employees. It is submitted that therefore, learned Single Judge has materially erred in directing the appellant employer to pay back wages / full wages from the date of termination till they attained the age of superannuation. In support of their above submissions, learned advocates for the employer have heavily relied upon the decision of the Hon'ble Supreme Court in the case of Banshi Dhar vs. State of Gujarat reported in (2007) 1 SCC 324, in the case of State Bank of India and Anr vs. Mohammed Abdul Rahim reported in (2013) 11 SCC 671 as well as in the case of Hukmi Chand vs. Jhabua Cooperative Central Bank Limited reported in (1998) 2 SCC
291. 5.1. Relying upon the above decisions, it is vehemently submitted by learned advocates for the employer electricity company that concerned employee shall not be entitled for the back wages automatically for the period between their acquittal by the High Court till they attained the age of superannuation. However, they have candidly admitted and conceded that concerned employee shall be entitled to all the retirement benefits/ pensionary benefits with continuity of service as if the order of termination was not in Page 4 of 11 HC-NIC Page 4 of 11 Created On Fri Sep 29 23:16:29 IST 2017 C/LPA/1234/2016 JUDGMENT existence.
6.0. Shri Shukla, learned advocate for the respective employees has submitted that as the employees were dismissed from service and / or their services were terminated solely on the conviction by the competent Criminal Court and as rightly observed by the learned Single Judge on acquittal the basis for termination had gone, thereafter employee shall be entitled to all the benefits including back wages as if order of termination which was on conviction does not exists. It is therefore, submitted that the learned Single Judge has rightly allowed the petition and granted the relief including the back wages from the date of termination till he attained the age of superannuation.
Now, so far as reliance placed upon the decisions of the Hon'ble Supreme Court referred to herein above, by the learned advocate for the employer are concerned, Shri Shukla, learned advocate for the concerned employee has heavily relied upon Rule 241(1) of the Service Regulations of the Electricity Board and has submitted that in view of Regulation 241(2), the employee shall be entitled to full pay and allowance, to which they would have been entitled as if they have not been dismissed. It is submitted that before the Hon'ble Supreme Court no such regulation was there and / or under consideration. It is submitted that therefore, the aforesaid decision shall not be applicable to the facts of the case on hand.
7.0. Heard the learned advocates for the respective parties at length. The short question which is posed for the consideration of Page 5 of 11 HC-NIC Page 5 of 11 Created On Fri Sep 29 23:16:29 IST 2017 C/LPA/1234/2016 JUDGMENT this Court is once the employee is dismissed on his conviction by the competent Criminal Court considering relevant provisions / Service Regulation and thereafter when the conviction is set aside by the High Court and / or higher forum, while reinstating and / or till the concerned employees attained the ager of superannuation, the concerned employee shall be entitled to pensionary benefits / retirement benefits including the back wages from the date of termination till reinstatement and / or till the concerned employee attained the age of superannuation whichever is earlier ?
7.1. At the outset, it is required to be noted that as such the aforesaid issue is now not res integra in view of the decisions of the Hon'ble Supreme Court in the case of Banshi Dhar (supra), Mohammed Abdul Rahim (supra) and Hukmi Chand (supra), it is required to be noted that as per GSO 7 the concerned employee has ineligible for employment and / or to be continued in service on his conviction by the competent Criminal Court. Therefore, on his conviction by the competent Criminal Court, the concerned employee could not have been continued in service considering GSO7. The concerned employee could not have remained employed with the electricity board during the period of conviction on account of the provision of Service Regulation viz. GSO7. Therefore, considering the aforesaid decisions of the Hon'ble Supreme Court, on acquittal, though the concerned employee is entitled to be reinstated in service and / or is entitled to all retirement / pensionary benefits as if order of dismissal was not in existence, he shall not be entitled to the wages from the date of dismissal / termination till he is reinstated and / or he attain the Page 6 of 11 HC-NIC Page 6 of 11 Created On Fri Sep 29 23:16:29 IST 2017 C/LPA/1234/2016 JUDGMENT age of superannuation. The Hon'ble Supreme Court in para 10, in the case of Mohammed Abdul Rahim (supra) has observed and held as under:
"10. The issue relating to entitlement to back wages, however, stands on a somewhat different footing. While in Ranchhodji Chaturji Thakore, Jaipal Singh and Baldev Singh , the basis of refusal of back wages by this Court would appear to be the inability of the employer to avail of the service of the employee due to his incarceration in jail, in Banshi Dhar , the refusal of back wages by this Court was in a situation largely similar to the case before us, namely, where the employee was all along on bail and was thus available for work. In Banshi Dhar , this Court answered the question against the employee by holding that grant of back wages is not automatic and such an entitlement has to be judged in the context of the totality of the facts of a given case. It is on such consideration that back wages was declined. In the present case, it will not even be necessary for the Court to perform the said exercise and delve into the surrounding facts and circumstances for the purpose of adjudication of the entitlement of the Respondent to back wages in view of the provisions of Section 10(1)(b)(i) of the Act. The said provisions impose a clear bar on a banking company from employing or continuing to employ a person who has been convicted by a criminal court of an offence involving moral turpitude. No discussion as to the meaning of the expression 'moral turpitude' is necessary having regard to the nature of the offences alleged against the Respondent, namely, under Section 498A of the Indian Penal Code and Section 4 of the Dowry Prohibition Act, 1961. No doubt, the Respondent was not in custody during the period for which he has been denied back wages in as much as the sentence imposed on him was suspended during the pendency of the appeal. But what cannot be lost sight of is that the conviction of the Respondent continued to remain on record until it was reversed by the appellate court on 22.02.2002. During the aforesaid period there was, therefore, a prohibition in law on the Appellant bank from employing him. If the Respondent could not have remained employed with the Appellantbank during the said period on account of the provisions of the Act, it is difficult to visualise as to how he would be entitled to payment of salary during that period. His subsequent Page 7 of 11 HC-NIC Page 7 of 11 Created On Fri Sep 29 23:16:29 IST 2017 C/LPA/1234/2016 JUDGMENT acquittal though obliterates his conviction, does not operate to retrospectively wipe out the legal consequences of the conviction under the Act. The entitlement of the Respondent to back wages has to be judged on the aforesaid basis. His reinstatement, undoubtedly, became due following his acquittal and the same have been granted by the Appellant bank."
7.2. Identical question came to be considered by the Hon'ble Supreme Court in the case of Banshi Dhar (supra) while denying the back wages from the date of order of dismissal (which was on the basis of the conviction) and / or order of reinstatement till the concerned employee attained the age of superannuation. The Hon'ble Supreme Court has observed in para 8 to 11 as under:
"8.It may be true that the reason for 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 the entire period between 13.7.1976 and the date when he reached his age of superannuation he did not work. He was placed under order of suspension validly from 1976 to 2.10.1987. Legality of the order of dismissal on the basis of the judgment of conviction and sentence dated 25.2.1985 has also not been questioned. It is true that his services were dispensed with as he had been convicted in a criminal case involving grave misconduct. On his acquittal, he was to be reinstated in service. He has been directed to be paid his pensionary benefits. The entire period during which he remained under suspension, thus, would be considered for calculating his pensionary benefits. Continuity of his service has also not been denied to him. The only question which arises for consideration, as noticed hereinbefore, is as to whether in a situation of this nature back wages should have been granted to him.
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 Page 8 of 11 HC-NIC Page 8 of 11 Created On Fri Sep 29 23:16:29 IST 2017 C/LPA/1234/2016 JUDGMENT 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.
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 of reinstatement, this Court had directed placing of the delinquent employee under suspension."
7.3. Considering the aforesaid two decisions of the Hon'ble Supreme Court, the learned Single Judge has materially erred in allowing the Special Civil Application No. 9471 of 2014 by directing the appellant board/ Electricity Company to pay back wages / full wages from the date of order of dismissal till respondent employee attained the age of superannuation. The impugned judgment and order passed by the learned Single Judge passed in Special Civil Application No. 9471 of 2014 deserves to be quashed and set aside to the extent awarding back wages from the date of order of dismissal till respondent employee attained the age of superannuation. Rest of the judgment and order passed by the learned Single Judge is not required to be interfered with.
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C/LPA/1234/2016 JUDGMENT
8.0. Similarly, Special Civil Application No.1415 of 2016 as such deserves to be partly allowed by directing the respondent electricity Company employer to pay all the retirement / pensionary benefits including the amount of gratuity etc. to the petitioner on his being acquitted by the High Court and the conviction being set aside, as if order of dismissal does not exist. However, he shall not be entitled to back wages / full back wages from the date of order of dismissal till he attained the age of superannuation. Special Civil Application No. 1415 of 2016 is required to be partly allowed to the aforesaid extent.
9.0. In view of the above and for the reasons stated above, Letters Patent Appeal No. 1234 of 2016 is hereby partly allowed. The impugned judgment and order passed by the learned Single Judge passed in Special Civil Application No. 9471 of 2014 is hereby quashed and set aside to the extent directing the appellants to pay back wages / full back wages to the respondent employee from the date of order of dismissal till he attained the age of superannuation. Rest of the judgment and order passed by the learned Single Judge is hereby confirmed.
In view of order passed in Letters Patent Appeal, Civil Application No.11506 of 2016 stands disposed of.
9.1. In view of the above and for the reasons stated above, Special Civil Application No.1415 of 2016 is hereby partly allowed. The respondents are hereby directed to pay amount of gratuity, pensionary benefits/ retirement benefits to the petitioner as if order Page 10 of 11 HC-NIC Page 10 of 11 Created On Fri Sep 29 23:16:29 IST 2017 C/LPA/1234/2016 JUDGMENT of dismissal does not exist on conviction being set aside. However, he shall not be entitled to the back wages for the interregnum period i.e. from the date of order of dismissal till he attained the age of superannuation. The concerned respondents are directed to pay all other retirement / pensionary benefits including the gratuity to the petitioner within a period of four weeks from today, if not paid so far as. Rule is made absolute to the aforesaid extent. No costs.
sd/ (M.R. SHAH, J.) sd/ (B.N. KARIA, J.) Kaushik Page 11 of 11 HC-NIC Page 11 of 11 Created On Fri Sep 29 23:16:29 IST 2017