Orissa High Court
Bijoy Kumar Sahoo vs Union Of India And Others .... Opposite ... on 31 July, 2024
Author: S.K. Panigrahi
Bench: S.K. Panigrahi
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No. 4670 of 2011
(In the matter of an application under Articles 226 and 227 of the
Constitution of India, 1950).
Bijoy Kumar Sahoo .... Petitioner(s)
-versus-
Union of India and others .... Opposite Party (s)
Advocates appeared in the case through Hybrid Mode:
For Petitioner(s) : Mr. Swayam Prabhu Jena, Adv.
On behalf of
Mr. S.B. Jena, Adv.
For Opposite Party (s) : Mr. Gyanaloka Mohanty, CGC
CORAM:
DR. JUSTICE S.K. PANIGRAHI
DATE OF HEARING:-15.05.2024
DATE OF JUDGMENT: -31.07.2024
Dr. S.K. Panigrahi, J.
1. The Petitioner has filed this Writ Petition challenging the illegal action of the Opp. Parties in not disbursing the back wages with effect from the date of his removal till his reinstatement i.e. with effect from 22.04.1999.
I. FACTUAL MATRIX OF THE CASE:
2. The brief facts of the case are as follows:
(i) While the petitioner was working as a sweeper in the Central Industrial
Security Force ("CISF")/ NALCO and he was residing at Angul with his Signature Not Verified Digitally Signed Page 1 of 15 Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 15-Aug-2024 11:18:48 wife, his wife committed suicide on 30.06.1998 against which the father of his deceased wife lodged an FIR against him on 28.09.1998. The Petitioner was arrested and S.T. Case No.2 of 99 (Trial Case No.7/99) arising out of G.R. Case No.307/98 was instituted against the Petitioner. However, the Petitioner was acquitted from the charges on 22.06.1999.
(ii) During the pendency of G.R. Case No.307/1998, the Petitioner was charge-sheeted by the CISF administration for alleged gross misconduct and subjecting his wife to cruelty and harassment which drove her to commit suicide. He was also charged for dereliction of duty and suppression of fact that the petitioner did not inform the competent authority regarding his arrest by the NALCO Township Police. After a long process of enquiry, the order of punishment was passed declaring the removal of the Petitioner from his service where it has also been indicated that the suspension period from 12.7.1998 till 22.04.1999 will be treated as non-duty and he will not get anything more than what has been paid to him as substantial allowance.
(iii) Challenging the order of punishment, the Petitioner preferred an Appeal to the Opp. Party No.2 but the same was rejected vide an order on dated 6.10.1999.The petitioner also preferred a Revision before the Opp. Party No.1 and the said Revision petition was also rejected on 7.2.2001.
(iv) Challenging the orders of removal and order passed by the Appellate Authority as well as the Revisional Authority; the petitioner had filed O.J.C. No.4651/2001 praying therein to quash the order of punishment Signature Notand the order passed by the Appellate Authority as well as the Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Page 2 of 15 Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 15-Aug-2024 11:18:48 Revisional Authority. Responding to the petition, this High Court quashed the order of punishment passed by the appellate authority as well as the Revisional Authority.
(v) The Petitioner submitted several representations regarding implementation of the judgment dated 16.9.2009 and as per letter dated28.6.2010 but the Petitioner was informed that SLP No.8724/10 against the judgment dated 16.9.10 passed by this Court was sub-judice.
(vi) However, the SLP filed by the Opp. Parties was dismissed in limine at the stage of admission and the Supreme Court has straight away rejected the prayer of the Opp. Parties by confirming the judgment passed by this Court. Thereafter, the letter No.6844 dated 4.9.2010, the Opp. Party No.3passed an order reinstating the petitioner and in the said order it has pointed out that consequent upon the dismissal of the Special Leave Petition and upon examination of the matter by the Headquarter New Delhi it has been administratively decided to implement the judgment dated 16.9.09 of this High Court in toto. II. SUBMISSIONS ON BEHALF OF THE PETITIONER:
3. Learned counsel for the Petitioner earnestly made the following submissions in support of his contentions:
(i) The learned C.J.M.-cum-Assistant Sessions Judge, Angul vide its judgment dated 22.6.1999 in S.T. Case No.2-A of 1999 / Trial Case No.7 of 1999 recorded the finding that the petitioner is not guilty of the offence under section-4 of Dowry Prohibition Act and under section 304-B and 498-A of the Indian Penal Code. Since the petitioner has been Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Page 3 of 15 Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 15-Aug-2024 11:18:48 set-free from the criminal liability; the impugned orders to OJCNo.4651/2001 has been quashed by this Court.
(ii) The Supreme Court in Shiv Nandan Mahto v. State of Bihar and Others1 has held that the principle of no work no pay will not be applicable if an employee is kept out of service due to mistake committed by the state and an employee cannot be denied benefit of back wages on the ground that he had not worked for the period when he was illegally kept out of service.
(vii) In pursuance to the Office Order bearing No.6894dated 4.9.2010; the petitioner has submitted his joining report, on 20.9.2010 and discharged his duties as Sweeper. While the matter stood thus, per Unit Service Order: Part-I/ No.108/2010 dated 25.9.2010; the Opp. Party No.3 informed all concerned that the petitioner has been reinstated;
consequent upon the dismissal of the S.L.P. filed by the Opp. Parties.
(viii) The Commandant, CISF Unit NALCO, Angul ("Opp. Party No.3") again issued an order as per Unit Service Order Part-I No.10/2011 dated 29.1.2011 pointing inter alia that consequent upon judgment order passed by this Court on 15.09.2009 and decision of HQ New Delhi vide message No.V-14013/2p50/2001/L&R/2233 dated 19.08.2010, and Office Order No.V-14014/LER/N(A)/BKS/2011/826, he is taken on strength of this Unit as well as CISF with effect from 16.09.2009(FN). It was further directed that his previous period will be counted towards his service but he will not get any back wages on the principal of "no work no pay".
Signature Not1(2013) Verified 11 SCC 626 Digitally Signed Signed by: BHABAGRAHI JHANKAR Page 4 of 15 Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 15-Aug-2024 11:18:48
(ix) Since the order of punishment or removal, and further, the suspension period which was treated as such having been set aside by the this Court; the Opp. Parties should not have directed that the 'period for which the petitioner has not worked will not get any back wages on the principle of "no work no pay". The petitioner has no role or he has no fault for not working with effect from 22.4.1999 till his reinstatement as he was not allowed to work for the above-mentioned period.
(x) When this Court has set aside the order of punishment, it is presumed that the petitioner has discharged his duties and for which the applicability of "no work no pay" in this particular case will not stand.
(xi) Since the order of entitlement of back wages on the principle of "no work no pay" has been issued in pursuance to the order of the higher authorities; the petitioner has no chance for an appeal and for which the office order No.V-14014/LER/N(A)/BKS /2011/826directing that the petitioner is not entitled to get any back wages is to be set aside. III. SUBMISSIONS ON BEHALF OF THE OPPOSITE PARTIES:
4. Per contra, learned counsel for the Opp. Parties earnestly made the following submissions in support of his contentions:
(i). The petitioner had been arrested by Police on 12.07.1998 and a police case was filed vide Case No.59/98 under Section 498(A)/304(B)/306 of IPC was registered against him. Further, he was remanded to judicial custody. Ergo, he was placed under suspension with effect from
12.07.1998, as per rules on the subject.
(ii). Thereafter, he was charge sheeted under Rule-34 of CISF Rules-2001 Signature Not("CISF Rules") for subjecting his wife to cruelty and harassment which Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Page 5 of 15 Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 15-Aug-2024 11:18:48 drove her to commit suicide and also for suppressing the material fact of his arrest by police and remand to judicial custody for further investigation. The Petitioner neither tried to send information to competent authority about his arrest by police nor requested police authorities to pass the message about his arrest to competent authority.
(iii). After careful consideration, the Disciplinary Authority i.e. Commandant, CISF Unit, NALCO, Angul awarded the Punishment of "Removal from Service" vide final order No. V-15014 /(15)/ L&R/ N(A)/ 98-99/ 3182 dated 22.04.1999
(iv). However, post the order of this High Court in OJC No.4651/2001 and dismissal of SLP No.CC-8724/2010 challenging the abovementioned order, the Petitioner was re-instated in service with effect from 20.09.2010 (AN) vide USO Part-I No.108/2010 dated 25.09.2010 and as per amended USO Part-I No.10/2011 dated 29.01.2011.
(v). The petitioner filed a Writ Petition bearing OJC No.4651/2001, against the order of "Removal from Service" in this Court. The spirit of the judgment order was very clear and his entitlement was not restricted. The matter was taken up with higher authority in connection with implementation of order. As per legal opinion of ASG and the direction of higher authority, the Petitioner was ordered for re-instatement. Petitioner is not entitled for any wages on the principle of "no work no pay."
(vi). The acquittal was not with full honour but it is more for prosecution failure to establish the charge beyond reasonable doubt. However, his Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Page 6 of 15 Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 15-Aug-2024 11:18:48 acquittal in criminal case is nothing to do with the charges leveled against him which were proved in departmental proceedings.
(vii). It is submitted that the Petitioner has been paid his entitlement as per the judgment of this Court. He cannot be paid the wages for the rest of period for which he had not performed any duty.
IV. COURT'S REASONING AND ANALYSIS:
5. I have heard the rival contentions of the parties, perused the materials placed on record.
6. It is evident that the Petitioner was suspended and subsequently terminated due to his involvement in a criminal case. The criminal proceedings were not initiated by the Opposite Parties; they merely initiated disciplinary proceedings following the Petitioner's arrest and subsequent prosecution. The Petitioner was eventually acquitted by the court of law. Moreover, this court, in OJC No. 4651 of 2001, quashed the disciplinary proceedings and the termination order, deeming the termination to be perverse and illegal. Consequently, the Petitioner was reinstated into service as per the relevant orders and letters issued by the Opposite Parties but only after nearly 11 years of his acquittal. However, it is to be seen whether the Opp. Parties will be liable to pay back wages to the Petitioner for the duration that the Petitioner was kept away from the post by the Opp. Parties.
7. The learned counsel for the Opp. Parties has relied on two important judgments of the Supreme Court which have dealt with the issue of back wages after acquittal from criminal charges. Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Page 7 of 15 Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 15-Aug-2024 11:18:48
8. The Supreme Court in Ranchhodji Chaturji Thakore v. Superintendent Engineer, Gujarat Electricity Board and Anr.,2 considered the case of an employee who sought back wages for the period he was kept out of duty during the pendency of a criminal case for his involvement in an offence under Section 302, IPC. The claim of the Petitioner therein was that he was entitled to full wages on his acquittal by the Criminal Court. The Supreme Court rejected the said submission by holding that the question of payment of back wages would arise only in case of termination of service, pursuant to findings recorded in a departmental enquiry. In the event of the dismissal order being set aside by the Court, the delinquent employee would be entitled to claim back wages as he was unlawfully kept away from duty by the employer. This Court was of the opinion that an employee against whom criminal proceedings are initiated would stand on a different footing in comparison to an employee facing a departmental inquiry. The employee involved in a crime has disabled himself from rendering his services on account of his incarceration in jail. The relevant excerpt from the judgment is produced hereinbelow:
"The reinstatement of the petitioner into the service has already been ordered by the High Court. The only question is:
whether he is entitled to back wages? It was his conduct of involving himself in the crime that was taken into account for his not being in service of the respondent. Consequent upon his acquittal, he is entitled to reinstatement for the reason that his service was terminated on the basic of the conviction by operation of proviso to the statutory rules applicable the Signature Not2 AIR Verified 1997 SC 1802 Digitally Signed Signed by: BHABAGRAHI JHANKAR Page 8 of 15 Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 15-Aug-2024 11:18:48 situation. The question of back wages would be considered only if the respondents have taken action by way of disciplinary proceeding and the action was found to be unsustainable in law and he was unlawfully prevented from discharging the duties. In that context, his conduct becomes relevant,each case requires to be considered in his own backdrops. In this case, since the petitioner had involved himself in a crime, though he was later acquitted, he had disabled himself from rendering the service on account of conviction and incarceration in jail. Under these circumstances, the petitioner is not entitled to payment of back wages. The learned single judge and the Division Bench have not committed any error of law warranting interference."
(Emphasis supplied)
9. In yet another case, in Union of India and Others v. Jaipal Singh3, the Supreme Court again refused to grant 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 as following:
"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 it 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 Signature Not32004 Verified (1) SCC 121 Digitally Signed Signed by: BHABAGRAHI JHANKAR Page 9 of 15 Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 15-Aug-2024 11:18:48 consonance with reasonableness as well. Though exception taken to that part of the order 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."
10. It is evident that the petitioner was suspended due to his involvement in a criminal case. The case was not instigated by the Opp. Parties; they merely commenced the disciplinary proceedings following the petitioner's arrest and subsequent prosecution. The Opp. Parties cannot be faulted for initiating the disciplinary proceeding against the petitioner and later suspending him for his involvement in the criminal case, even though he was subsequently acquitted. The Opp. Parties acted within its rights and responsibilities to maintain the integrity and trust within its organization, responding appropriately to the serious allegations at the time. The acquittal, while significant, does not retroactively invalidate the Opp. Parties' justified actions based on the information available during the initial proceedings. Ergo, it is clear that the prosecution of the Petitioner, as well as his suspension, was not driven by malice.
Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Page 10 of 15 Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 15-Aug-2024 11:18:48
11. The aforementioned cases serve as a useful precedent in the present matter, establishing that the petitioner is not entitled to back wages for the period of his suspension to his acquittal, i.e. from 12.07.1998, to 22.05.1999. However, these cases do not provide a rationale for denying the petitioner back wages for the period following his acquittal when he was unjustly kept from service by the Opp. Party.
12. The Bombay High Court in Abhimanyu Laxman Kumbhar v.
Maharashtra State Electricity Distribution Company Ltd.4 held that an employer cannot deny wages citing pendency of a criminal appeal against an employee's acquittal on the principle of 'no work no pay'. The Court relied on the judgment of the Himanchal Pradesh High Court in Surinder Kumar v. State of Himachal Pradesh,5 and the judgment of Kerala High Court in Union of India v. T. Karunakaran,6 and held as following:
"17. We would also consider the views taken by some of the High Courts on the issue of effect of pendency of appeal against acquittal. Division Bench judgment of Himachal Pradesh High Court in, reported in observed as under:
'The orders of acquittal are indubitably under challenge in the High Court. The preferment of acquittal appeals cannot, however, be regarded as the continuance of the trial. The trials have concluded with the judgment of acquittal (See State v. B.C. Dwivedi, (1983) 24(2) GLR 1315). The initial presumption of innocence must, therefore, be regarded as having been doubly reinforced by orders of acquittal passed in favour of the petitioner. Under such 4 2022 SCC OnLineBom 2965 5 Signature Not6(1985) 3 SLR 254 Verified 2020 SCC OnLine Ker 17734 Digitally Signed Signed by: BHABAGRAHI JHANKAR Page 11 of 15 Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 15-Aug-2024 11:18:48 circumstances, the continued operation of the order of suspension as from the date of acquittal cannot be regarded as reasonable, fair and just. Merely because the petitioner was, at one point of time, detained in custody for a period exceeding forty-eight hours, he cannot be kept under suspension perpetually, especially when the allegations on the basis of which he was detained and which ultimately became the subject matter of two trials before the criminal Court, are found by a Court of competent jurisdiction to have not been established beyond reasonable doubt.'
18. In Union of India v. T. Karunakaran, 2020 SCC OnLine Ker 17734 a Division Bench of the Kerala High Court followed the decision in Surinder Kumar (supra) in addition to few more judgment on same lines and held as under:
'5. In Surinder Kumar (supra) a Division Bench of the Himachal Pradesh High Court was concerned with an order of suspension imposed upon an employee following his detention in a criminal case. The court came to the conclusion that there is no cause to continue the suspension of an employee when the criminal charges which led to his detention in the first place have been found to be not established. In Balak Singh Takur (supra) a learned single judge of the Madhya Pradesh High Court has taken the view that the preferment of a criminal revision or appeal against an order of acquittal cannot be treated as a continuation of the trial or the pendency of a judicial proceeding. This finding was with specific reference to the definition of 'Judicial proceeding' in Section 2(i) of the Code of Criminal Procedure. It was held "A person so acquitted of the charges stand at par with a person who is not being charged and was not subjected to a criminal proceeding. The preferment of a criminal revision or an appeal against an acquittal cannot be regarded as a continuance of the trial and cannot be treated to be pendency of judicial proceeding as the initial Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Page 12 of 15 Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 15-Aug-2024 11:18:48 presumption of innocence gets re-enforced by the orders of acquittal." In S. Rajagopal (supra) a Division Bench of the Madras High Court was considering the issue of regularization of the suspension period following the acquittal, the suspension having been made on account of either having been arrested and kept in custody or otherwise on account of the Criminal proceedings. It was held that the term 'judicial proceedings' in so far as criminal cases are concerned comes to an end when an order of acquittal is passed. In Rajagopal (supra) the Division Bench of the Madras High Court referred to Surinder Kumar (supra); State of West Bengal v. HariRamalu, (2000) 3 LLN 638; Chandu Ram v. State of H.P., 2009 SCC OnLine HP 1303; State of Haryana v. BanwariLal, 2010 SCC OnLine P&H 183, Chief Commissioner of Land Administration A.P, Hyderabad v. R.S. Ramakrishna Rao, (2010) 2 ALD 773, R.C. Dubey v. M.P. State Electricity Board, 2013 SCC OnLine MP 1004 and held:--
20. While that be the clear finding recorded in the judgment, acquitting the petitioner, under the premise of appeal, being filed and pending, against the order of acquittal, the petitioner cannot be deprived of the regularisation of the suspension period, endlessly. Disposal of the appeal may take a long time.
The petitioner is stated to have retired from service. There is no certainty that the State would be satisfied, even if the appeal in the High Court fails. If the State chooses to prefer a further appeal to the Hon'ble Supreme Court, the Department may again contend that the appeal is pending before the Apex Court. Thus, if the arguments of the respondents 2 and 3 have to be accepted, then there is no finality to the judgment of acquittal. In the light of the discussion and decisions considered, the further contention of the learned counsel that Vigilance has not given a clearance, cannot be countenanced." Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Page 13 of 15 Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 15-Aug-2024 11:18:48
13. The applicability of the rule of 'no work no pay' in a similar situation came up in Union of India v. K.V.Jankiraman,7 and where the Supreme Court held as under:
"The normal rule of "no work no pay" is not applicable to cases such as the present one where the employee although he is willing to work is kept away from work by the authorities for no fault of his. This is not a case where the employee remains away from work for his own reasons, although the work is offered to him."
.........We are, therefore, broadly in agreement with the finding of the Tribunal that when an employee is completely exonerated meaning thereby that he is not found blameworthy in the least and is not visited with the penalty even of censure, he has to be given the benefit of the salary of the higher post along with the other benefits from the date on which he would have normally been promoted but for the disciplinary/criminal proceedings."
14. Consequently, when the Petitioner was acquitted and his termination through departmental proceedings was quashed on the grounds of being illegal, the Opposite Party acted improperly by not reinstating the petitioner in a timely manner, thereby depriving him of his rightful wages. This failure to reinstate promptly constitutes a violation of the petitioner's rights, as well as principles of equity and fairness. Furthermore, the undue delay in reinstatement exacerbated the petitioner's financial and professional hardship, warranting a thorough examination of the Opposite Party's accountability for the resultant damages. It is imperative that the Petitioner be compensated for the period during which he was unjustly kept from service, reinforcing the Signature Not71991(3) Verified SCT 317 Digitally Signed Signed by: BHABAGRAHI JHANKAR Page 14 of 15 Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 15-Aug-2024 11:18:48 legal obligation to restore his rightful position and entitlements without undue delay.
V. CONCLUSION:
15. In light of the facts and circumstances of the present case, this Court is of the considered view that the action of the Opposite Parties in not reinstating the Petitioner immediately after his acquittal and denying back wages to the petitioner, even after the judgment of this court in OJC No. 4651 of 2001, was clearly unjustified.
16. Ergo, the impugned orders to the extent that the Opposite Parties seek to deny back wages after the date of acquittal are set aside.
17. The Opposite Parties are directed to pay the Petitioner full back wages from the date of acquittal, i.e. 22.06.1999, until the date of reinstatement, i.e., 04.09.2010, with 10% interest on the cumulative arrears. However, the Petitioner shall not be entitled to back wages from the date of suspension from service, i.e., 12.07.1998, until his acquittal on 22.06.1999.
18. The Writ Petition is accordingly allowed. No order as to costs.
(Dr. S.K. Panigrahi) Judge Orissa High Court, Cuttack, Dated the 31st July, 2024/ Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Page 15 of 15 Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 15-Aug-2024 11:18:48