Orissa High Court
Union Of India And Others vs Smt. Sweta Narendra And Others ..... ... on 18 April, 2024
Author: B.R.Sarangi
Bench: B.R.Sarangi
ORISSA HIGH COURT: CUTTACK
AFR W.P.(C) NO. 8692 OF 2022
In the matter of an application under Articles 226 and
227 of the Constitution of India.
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Union of India and others ..... Petitioners
-Versus-
Smt. Sweta Narendra and others ..... Opp. Parties For petitioners : Mr. Debasis Tripathy, Central Government Counsel For opp. parties : Mr. N.R. Routray, Advocate P R E S E N T:
THE HONOURABLE DR. JUSTICE B.R.SARANGI AND THE HONOURABLE MR JUSTICE G. SATAPATHY Date of Judgment : 18.04.2024 DR. B.R. SARANGI, J. Union of India and its functionaries have filed this writ petition seeking to quash the order dated 03.06.2020 passed by the Central Administrative Tribunal, Cuttack Bench, Cuttack in O.A. No. 936 of 2013 under Annexure-8, by which direction has been issued to the present petitioners to grant full TRCA in favour of the deceased employee for the intervening Page 1 of 22 period in question within a period of three months of the receipt of the order.
2. The factual matrix of the case, in brief, is that Late Sudhir Narendra, deceased husband of opposite party no.1, was appointed as a Extra Departmental (ED) Gramin Dak Sevak (GDS), Branch Post Master of Balabhadrapur Branch Post Office under Kanasa Sub- Post Office in Puri Postal Division w.e.f. 11.05.1985 and while working as such the deceased employee was implicated in a criminal case and was arrested by the police. The incident of criminal case had occurred on 22.01.1990, in which the deceased employee was convicted by the learned District & Sessions Judge, Puri in S.T. Case No.79/390 of 1993. The petitioners issued order of "put off duty" against him on 15.05.1997. Vide letter dated 26.05.1997, the petitioners asked the deceased employee to show cause as to why the punishment of dismissal shall not be imposed but the deceased employee could not submit his defence representation against the proposed punishment and the petitioner no.3 passed the order of dismissal vide Memo Page 2 of 22 No.A-338/PF dated 09.09.1997, against which the deceased employee preferred appeal. The appellate authority, relying on the instruction contained in Rule- 19, held the decision of the lower authority to be correct and rejected the case of deceased employee vide order dated 15.12.1997.
2.1. Aggrieved by the order of conviction passed by the learned District & Sessions Judge, Puri, the deceased employee preferred appeal before this Court. After hearing both sides, this court set aside the order of learned District & Sessions Judge and acquitted the deceased employee of all the charges. After being acquitted by this Court, the deceased employee was reinstated by the petitioners w.e.f. 21.05.2008 vide office memo dated 13.05.2008.
2.2. After reinstatement in service, the deceased employee made representation to the petitioners to regularize his service and to pay the back wages (TRCA) w.e.f. 15.07.1997 to 21.05.2008. In response to the said representation, the petitioners issued a letter to deceased Page 3 of 22 employee clarifying that there is no such provision in EDAs/GDS Conduct & Employment Rules for payment of TRCA, as claimed by him in his application dated 21.05.2008. The same was communicated vide office memo no. A-330/PF dated 23.01.2009.
2.3. Against such rejection, the deceased employee again preferred representation to the Senior Superintendent, Puri. His representation was considered by the Senior Superintendent of Puri vide order dated 25.02.2009 and it was ordered that the entire period from 15.07.1997 to 15.01.2008 shall be treated as "Put off duty", and the period from 16.01.2008 to 21.05.2008 would be treated as "duty period".
2.4. Aggrieved by the aforesaid order dated 25.02.2009, the deceased employee filed O.A. No. 728/2010 before the Central Administrative Tribunal, Cuttack Bench, Cuttack claiming back wages for entire period of "Put Off Duty". During pendency of the O.A., the government employee Sudhir Narendra died, and was substituted by his legal heirs. His legal heirs Page 4 of 22 preferred to withdraw the said O.A. with a liberty to file better application, which was allowed, vide order dated 24.06.2013. Thereafter, the legal heirs of deceased employee filed O.A. No. 936/2013 before the Tribunal seeking to quash the order dated 25.02.2009 vide Annexure-A/6 to the Original Application and to direct the petitioners to treat the entire period from 15.07.1997 to l5.01.2008 as on duty with all consequential service benefits including back wages (TRCA) with interest and cost.
2.5. Pursuant to the notice issued by the Tribunal, the present petitioners appeared and filed their counter contending therein that the deceased employee-Sudhir Kumar Narendra was convicted in criminal case. After issuance of show cause and affording personal hearing, he was dismissed from service. After the conviction was set aside by this Court, he was reinstated in service. The representation filed by the deceased employee for payment of back wages was considered and the petitioners communicated that the period from 15.07.1997 to 15.01.2008 was treated to be under "put Page 5 of 22 off duty" and, as such, in view of the judgment of apex Court in Union of India v Jaipal Singh, (2004) 1 SCC 121, wherein the apex Court held that the Government is not liable to pay back wages for the period for which, it could not availed the service of the employee, the deceased employee is not entitled to get back wages. But the Tribunal, vide impugned order dated 03.06.2020, allowed the Original Application of the opposite parties and directed the petitioners to pay the back wages to the deceased for the period in question. Hence, this writ petition.
3. Mr. Debasish Tripathy, learned Central Government Counsel appearing for the petitioners contended that the Tribunal has committed serious error of law while deciding the O.A. by holding that the deceased employee is entitled to get full back wages for the period he was terminated (put off) from duty that is from 09.09.1997 to 13.05.2008. It is further contended that law is well settled that the employee will not be entitled for the back wages for intervening period if he has not challenged and proved the proceeding and Page 6 of 22 removal from service made thereunder as mala fide or vexatious. By citing an example, he contended that, if an employee is involved in embezzlement of funds or is found indulging in demand and acceptance of illegal gratification, the employee cannot be extended with full back wages on his acquittal by a criminal court, unless it is found that the prosecution is malicious. 3.1. He further contended that the Tribunal has failed to appreciate the position of law that the employee will be entitled to back wages from the date of acquittal only. The present petitioners have acted accordingly vide their letter dated 25.02.2009 under Annexure-5. Therefore, the order passed by the Tribunal cannot be sustained in the eye of law and is liable to be quashed. To substantiate his contention, learned Central Government Counsel has placed reliance on the judgment of the apex Court in the case of Jaipal Singh (supra) and of this Court in Shiva Prasad Satpathy v. C.G.M., S.B.I., Bhubaneswar and others, 2019 (III) ILR-CUT-313, in which one of us (Dr. Justice B.R. Sarangi) was a member.
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4. It is of relevance to mention here that while entertaining the writ petition, this Court had issued notice to the opposite parties, vide order dated 20.04.2022, and passed an interim order staying operation of the order dated 03.06.2020 passed by the Tribunal in O.A. No. 936 of 2013 till 09.05.2022. This Court also observed in the said order that though the Tribunal passed the order on 03.06.2020, the petitioners challenged the same on 04.04.2022. However, this Court taking note of the explanation given in paragraph-9 of the writ petition, held that the delay cannot be attributable to the petitioners. The explanation given in paragraph-9 of the writ petition reads as follows:-
"That the impugned order was passed on 03.06.2020 which was received by the present petitioners on 26.06.2020. At that time lock down and shut-down were being observed due to outbreak of COVID 19, offices were almost paralysed. On 25.09.2020 the Petitioner No.3 addressed a letter to the office of the learned Assistant Solicitor a General of India for Odisha and sought for his opinion on the matter. Inadvertently, no communication was made from the office of A.K. Bose, learned A.S.G.I. to the petitioner, in spite of repeated communications. After change of incumbency of the learned ASGI, Orissa High Court, on 28.01.2022, the petitioners received legal opinion from Sri P.K.Parhi, the learned A.S.G.I. to challenge the order passed by the learned C.A.T. before this Hon'ble Court.Page 8 of 22
Thereafter, the petitioner completed all formalities and file the writ petition. Due to latchcs of the counsels, parties may not suffer. Apart from that the Hon'ble Supreme Court in suo moto Writ (Civil) No. 3/2020, M.A. No. 665/2021 and M.A. No. 21/2022 was pleased to extend all limitations in different proceedings up to 01.06.2022."
Thereafter, the matter was taken up on 05.05.2022, on which date this Court directed to accept the requisites which were filed late. On 09.05.2022, this Court observing that the notice could not be made sufficient as against the opposite parties since requisites were filed late, adjourned the matter and extended the interim order till 19.05.2022. Thereafter, on 19.05.2022, when this matter was taken up, Mr. N.R. Routray, learned counsel contended that he has instructions to appear on behalf of opposite parties and accordingly the petitioners were directed to serve a copy of the brief, along with annexures, on him for enabling him to obtain instructions and file counter affidavit. Accordingly, the name of Mr. N.R. Routray, learned counsel for opposite parties was also indicated in the cause list and notice against the opposite parties was made sufficient. But, today, at the time of call, none is present on behalf of the opposite parties, nor any counter affidavit has also been Page 9 of 22 filed. No request is also made on behalf of the learned counsel for opposite parties for grant of time to file counter affidavit. Since this is a certiorari proceeding and it emanates from the order dated 03.06.2020 of the Central Administrative Tribunal passed in O.A. No. 936 of 2013 under Annexure-8, instead of granting any adjournment, on perusal of the records available, this Court proceeded to decide the matter finally by assessing the correctness of the order impugned passed by the Tribunal. It is made clear that while considering the case of the opposite parties, this Court has taken note of the pleadings made in the Original Application filed by the opposite parties before the Tribunal and the documents relied upon therein for the just and proper adjudication of the case.
5. On the basis of the factual matrix, as delineated above, the only question revolves around in this case to be decided is, whether the deceased employee, consequent upon his reinstatement after acquittal from criminal case, is entitled to get full back wages for the period he was dismissed from service, i.e., Page 10 of 22 from 15.07.1997 to 15.01.2008, with all consequential service benefits, including back wages (TRCA) with interest and cost, particularly when the deceased employee was convicted in a criminal case and he never challenged his dismissal as mala fide and illegal?
6. There is no dispute before this Court that the deceased employee Sudhir Kumar Narendra, who was working as GDS BPM, Garh Balabhadrapur Branch Post Office under Kanas S.O., was put off from duty with effect from 15.07.1997, for his conviction on the basis of the judgment dated 20.11.1996 passed by the learned Additional Sessions Judge, Puri in S.T. Case No.79/390 of 1993, vide office memo dated 09.09.1997. Subsequently, the judgment of conviction was set aside by this Court, vide judgment dated 15.01.2008 passed in Criminal Appeal No.304 of 1996. As a consequence thereof, the deceased employee was reinstated in service with effect from 21.05.2008 A.N., vide office memo of dated 13.05.2008, on his acquittal from the criminal charge based on the judgment dated 15.01.2008 of this Court in Criminal Appeal No. 304 of 1996.
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7. Vide letter dated 23.01.2009 the entire period, i.e., from 15.07.1997 to 21.05.2008 was treated as non- duty for all purposes with the exception that the period should be counted for the purpose of departmental examinations and eligibility for sanction of ex gratia gratuity and severance allowance and for the purpose of TRCA, the same should be limited to the ex-gratia compensation already paid to the deceased employee during the period of his put off duty. Opportunity was given to the deceased employee to make a representation against the proposal, vide letter dated 23.01.2009, for the period from 15.07.1997 to 21.05.2008, which was treated as non duty for all purposes with exception as mentioned above. In response to the same, the deceased employee submitted his written representation saying that there was no misconduct on his part, so far as his work and conduct as an ED Agent is concerned, and he was ultimately acquitted by this Court vide judgment dated 15.01.2008 in Criminal Appeal No.304 of 1996. A conduct not in the course of employment cannot be a misconduct and a conduct which is not misconduct as Page 12 of 22 per the Conduct Rules cannot be the subject matter of disciplinary action against a government servant and the mere fact, that he was convicted by a criminal court on the ground of misconduct occurred at a place away from the place of employment, cannot be the basis for invoking the powers conferred on the disciplinary authority under Rule 8-A(1) and Rule-7(vi) of EDAs (Conduct and Service) Rules and, as such, the show cause notice has no force since the incident is not connected with duty as Branch Postmaster and it does not attract any of the violations as enjoined in Rule-17 of the EDAs (Conduct and Service) Rules. Thereby, prayed for treatment of the entire period of put off duty as duty for all purposes including payment of TRCA in the light of the judgments passed by the Central Administrative Tribunal, Patna Bench, Patna in OA No. 623/1990 and Madras Bench in O.A. No. 643 of 1990.
8. Even though it is not a case of departmental misconduct on the part of the GDS BPM, in fact, he was put off duty due to his involvement in a criminal case which ended in his conviction by the competent court of Page 13 of 22 law and action as required under the provision of the then prevalent Rule 8-A of EDAs (Conduct & Service) Rules, 1964 and now amended as GDS (Conduct & Employment) Rules, 2001 read with clause (a) of the second proviso to Article 311 (2) of' the Constitution has been taken against him. But, on being acquitted vide judgment dated 15.01.2008, he was reinstated in service. Therefore, for the period he remained under put off duty, i.e. from 15.07.1997 to 21.05.2008, as he had not discharged any duty for the department, he was not entitled to the wages for the said period, but the said period should be counted for the purpose of departmental examinations and eligibility for sanction of ex gratia gratuity and severance allowance. Thereby, it does not cause any prejudice to the deceased employee, because it is not for the cause of the department that he remained under put off duty, but for the cause of the employee, as he involved in a criminal case and was convicted by the competent court of law. However, on acquittal, he was reinstated in service. Therefore, for the period from 15.07.1997 to 21.05.2008, the deceased Page 14 of 22 employee has been denied the dues admissible to him. But the Tribunal has committed a gross error apparent on the face of the record in passing the order impugned dated 03.06.2020 extending such benefit to the deceased employee, which cannot be sustained in the eye of law.
9. In Jaipal Singh (supra), the apex Court at paragraphs-4 and 5 held as follows:-
"4. On a careful consideration of the matter and the materials on record, including the judgment and orders brought to our notice, we are of the view that it is well accepted that an order rejecting a special leave petition at the threshold without detailed reasons therefore does not constitute any declaration of law by this Court or constitute a binding precedent. Per contra, the decision relied upon for the appellant is one on merits and for reasons specifically recorded therefore and operates as a binding precedent as well. On going through the same, we are in respectful agreement with the view taken in [1996] 11 SCC 603 (supra). If prosecution, which ultimately resulted in acquittal of the person concerned was at the behest or by department itself, perhaps different considerations may arise. On the other hand, if as a citizen the employee or a public servant got involved in a criminal case and if after initial conviction by the trial court, he gets acquittal on appeal subsequently, the department cannot in any manner be found fault with for having kept him out of service, since the law obliges, a person convicted of an offence to be so kept out and not to be retained in service. Consequently, the reasons given in the decision relied upon, for the appellants are not only convincing but are in consonance with reasonableness as well. Though exception taken to that part of the order Page 15 of 22 directing re-instatement cannot be sustained and the respondent has to be re-instated, in service, for the reason that the earlier discharge was on account of those criminal proceedings and conviction only, the appellants are well within their rights to deny back wages to the respondent for the period he was not in service. The appellants cannot be made liable to pay for the period for which they could not avail of the services of the respondent. The High Court, in our view, committed a grave error, in allowing back wages also, without adverting to all such relevant aspects and considerations. Consequently, the order of the High Court in so far as it directed payment of back wages are liable to be and is hereby set aside.
5. The respondent will be entitled to back wages from the date of acquittal and except for the purpose of denying the respondent actual payment of back wages, that period also will be counted as period of service, without any break. The re-instatement, if not already done, in terms of the order of the High Court will be done within thirty days from today."
10. On perusal of the aforementioned judgment, it is evident that the apex Court in an unequivocal term held that the employee or a public servant got involved in a criminal case and if after initial conviction by the trial court, he gets acquittal on appeal subsequently, the department cannot in any manner be found fault with for having kept him out of service, since the law obliges, a person convicted of an offence to be so kept out and not to be retained in service.
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11. The reason, for which the deceased employee was under put off duty, is on account of his involvement in a criminal proceeding and conviction in the same. Therefore, the authorities, i.e., the petitioners are well within their right to deny back wages to the deceased employee for the period he was not in service. Thereby, the petitioners cannot be made liable to pay for the period for which they have not availed the service of the deceased employee. Consequentially, the order dated 03.06.2020 passed by the Tribunal cannot be sustained in the eye of law.
12. In Ranchhodji Chaturji Thakore v. Suptd. Engineer, Gujarat Electricty Board, (1996) 11 SCC 603, the apex Court had only directed for reinstatement but denied back wages on the ground that the department was no way concerned with the criminal case and, therefore, cannot be saddled with the liability of back wages for the period, when the employee was out of service during/after conviction suffered by him in the criminal case. The apex Court further held that if as a Page 17 of 22 citizen the employee or a public servant got involved in a criminal case and if after initial conviction by the trial court, he gets acquittal on appeal subsequently, the department cannot in any manner be found fault with for having kept him out of service, since the law obliges a person convicted of an offence to be so kept out and not to be retained in service. Consequently, the apex Court held that the reasons given in the decision relied upon, for the appellants are not only convincing but are in consonance with reasonableness as well. Though exception taken to that part of the order directing reinstatement cannot be sustained and the respondent has to be reinstated in service, for the reason that the earlier discharge was on account of those criminal proceedings and conviction only, the appellants are well within their rights to deny back wages to the respondent for the period he was not in service. The appellants cannot be made liable to pay for the period for which they could not avail of the services of the respondent. The High Court, in our view, committed a grave error, in allowing back wages also, without adverting to all such Page 18 of 22 relevant aspects and considerations. Consequently, the order of the High Court insofar as it directed payment of back wages is liable to be and is hereby set aside.
13. In State Bank of India v. Mohammed Abdul Rahim, (2013) 11 SCC 67, the apex Court, referring to the judgments in Ranchhodji Chaturji Thakore and Jaipal Singh (supra), held as follows:
"........No doubt, the respondent was not in custody during the period for which he has been denied back wages inasmuch 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 22-2-2002. 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 appellant Bank 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 acquittal though obliterates his conviction, does not operate retrospectively to 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 has been granted by the appellant Bank."
Such finding of the apex Court is also based on reasonable reasonings given in Banshi Dhar v. State of Rajasthan, (2007) 1 SCC 324, where the apex Court, Page 19 of 22 while answering the question against the employee, held 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.
14. In the case of Shiba Prasad Satapathy (supra), in which one of us (Dr. Justice B.R. Sarangi) was a member, this Court had formulated the question at paragraph-6 of the judgment to the following effect:-
"6. The facts discussed above are not in dispute. Therefore, the only question to be considered by this Court on the basis of the admitted facts is, whether the petitioner is entitled to salary and promotion from the date of his discharge from service, i.e., 16.07.996 to 31.03.2008, the date on which he attained the age of superannuation, on being acquitted of the criminal charges on 07.04.2011."
While answering such question, this Court had taken note of the aforementioned judgements and held as follows:-
"On critical analysis of the judgments, which have been relied upon by the learned counsel for the opposite parties in Ranchhodji Chaturji Thakore, Jiapal Singh, Mohammed Abdul Rahim and also in Banshi Dhar, mentioned above, this Court is of the considered view that the same are fully applicable to the present case. Applying the ratio decided therein to the case in hand, this Court does not find any illegality or Page 20 of 22 irregularity committed by the authorities in passing the order impugned in Annexure-1 dated 05.07.2012 so as to call for interference by this Court at this stage. The order impugned, which is absolutely clear that the period from the date of discharge till the date of superannuation, i.e., from 16.07.1996 to 31.03.2008 the petitioner shall be entitled to terminal benefits in terms of the State Bank of India Officers' Service Rules, 1992, is well justified. So far as payment of salary for such period with all consequential benefits, including promotion, is concerned, the same cannot have any justification, in view of the law discussed above."
15. In view of the law decided by the apex Court in the judgments rendered in Ranchhodji Chaturji Thakore, Jiapal Singh, Mohammed Abdul Rahim and Banshi Dhar (supra), which have also been referred to by this Court in the case of Shiba Prasad Satapathy (supra), this Court unhesitatingly comes to a conclusion that for the period, i.e. from 15.07.1997 to 15.01.2008, which has been treated as put off duty, the deceased employee is not entitled to get any payment as claimed by him, rather the said period should be treated for all other purposes, such as departmental examinations and eligibility for sanction of ex gratia gratuity and severance allowance and that for the purpose of TRCA, the same should be limited to the ex-gratia compensation. Page 21 of 22
Thereby, the Tribunal has committed a gross error apparent on the face of the record by allowing the benefit of back wages for the period from 15.07.1997 to 15.01.2008, which is not permissible to the deceased employee, as he had not rendered any service for the department. Accordingly, the order dated 03.06.2020 passed by the Central Administrative Tribunal in O.A. No. 936 of 2013 cannot be sustained in the eye of law and the same is liable to be quashed and is hereby quashed.
16. In the result, the writ petition filed by Union of India succeeds and is thus allowed. But, however, in the facts and circumstances of the case, there shall be no order as to costs.
(DR. B.R. SARANGI)
JUDGE
G. SATAPATHY, J. I agree.
(G. SATAPATHY)
JUDGE
Signature Not Verified
Orissa High Court, Cuttack
th
Digitally Signed
The 18 April, 2024, Arun
Signed by: ARUN KUMAR MISHRA
Designation: ADR-cum-Addl. Principal Secretary Reason: Authentication Location: High Court of Orissa, Cuttack Date: 24-Apr-2024 17:16:12 Page 22 of 22