Chattisgarh High Court
B. K. Sharma vs The State Of Chhattisgarh on 13 June, 2024
Author: Rajani Dubey
Bench: Rajani Dubey
Neutral Citation
2024:CGHC:19259
1
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Order reserved on : 15/03/2024
Order passed on : 13/06/2024
WPS No. 1560 of 2019
B.K. Sharma, S/o Late Keshrilal Sharma, Aged About 57 Years,
Occupation - Laboratory Technician in The Government Veer
Surendra Say PG College, Gariband, District - Gariyaband, Police
Station City Kotwali Gariyaband, R/o Near Purana Forest Naka,
Balak High School Road, Gariyaband Chhattisgarh.
---- Petitioner
Versus
1. The State of Chhattisgarh Through - Secretary Department of
Higher Education Mantralaya, New Raipur District Raipur
Chhattisgarh.
2. Commissioner Department of Higher Education Block - C, 3rd
Floor, Indravati Bhawan, New Raipur Chhattisgarh.
---- Respondents
_________________________________________________________ For Petitioner : Mr. Sunil Kumar Soni, Advocate. For Respondents/State : Mr. R.N. Pusty, G.A. _________________________________________________________ Hon'ble Smt. Justice Rajani Dubey CAV Order
1. The petitioner has preferred the present petition challenging the order dated 18.01.2019 (Annexure P/13) passed by the respondent No.1 whereby the petitioner was denied for grant of consequential benefits on the ground of no work and no pay.
2. Brief facts of the case as mentioned in the petition are that the petitioner was working as Laboratory Technician at Govt. Veer Neutral Citation 2024:CGHC:19259 2 Surendra Say PG College, Gariband, District- Gariyaband (C.G). On 22.06.1998 (Annexure P/1), the petitioner was placed under suspension for the offence under Sections 304-B of IPC & 498-A IPC and was also convicted for the said offence vide judgment dated 15.04.1998 in ST No. 335/1993 passed by 1 st Additional Sessions Judge Jagdalpur. Against this order, the petitioner preferred an appeal i.e. Criminal Appeal No. 957/1998 which was allowed on 24.01.2014 (Annexure P/3) and the petitioner stood acquitted of all the charges. Meanwhile, the respondent authorities had issued an order of dismissal from service on 31.12.2007 (Annexure P/2) on account of the petitioner being convicted in the criminal case. After the order of conviction being set aside by this Court vide its order dated 24.01.2014, the respondents issued an order of reinstatement on 09.12.2014 (Annexure P/4). However, the intervening period between 22.06.1998 to 31.12.2007 i.e. the period of suspension and from 31.12.2007 to 09.12.2014 during which he stood dismissed from service has not been considered by the respondent authorties in accordance with the requirement under Rule 54A of the Fundamental Rules. Being aggrieved by such supercilious action on the part of the respondent authorities, petitioner preferred writ petition i.e W.P. (S) No. 5665/2018 before this Court and this Court vide order dated 30.08.2018 allowed disposing of the said petition. On 12.09.2018 (Annexure P/12), notice for complying the Court's order dated 30.08.2018 was sent to the respondent authorities. Vide order dated 18.01.2019 (Annexure P/13), respondent No.1 denied the petitioner for grant of consequential benefits on the ground of no work and no pay. Hence, this petition has been filed by the petitioner for following reliefs:-
"1. Hold that passing the impugned order dated 18.01.2019 (Annexure P/13) by the O/o Respondent No.1 is bad in Law & is liable to the Struck Down being Arbitrary & Capricious.
2. Hold that the action of the respondents in not regularize Neutral Citation 2024:CGHC:19259 3 the period that Petitioner had remained under suspension and period he remained out of service on account of dismissal in term of Fundamental Rule 54 & FR 54-B is illegal, arbitrary, & a capricious besides being violative of Article 14 & 21 of the Constitution of India.
3. Respondents may kindly be directed to Regularize the Period that Petitioner had remained under Suspension and Period he Remained out of Service on Account of Dismissal in term of Fundamental Rule 54 & also also Order regarding Pay & Allowances & other Fringe Benefits immediately in terms of FR 54 with appropriate interest from the date of Entitlement.
4. That this Hon'ble Court may kindly be pleased to call the entire records of the case from the Respondents.
5. Any other relief, which this Hon'ble Court may deem fit and proper, may also be passed in favour of the petitioner together with cost of the petition."."
3. Learned counsel for the petitioner submits that since withholding of pay & allowances is an enumerated punishment under the CCA Rules 1966 and without conducting lawful departmental enquiry such action cannot be resorted to. Positive Duty cast upon the competent authority to regularize the period of dismissal at the time of revocation of the dismissal in terms of FR 54 is couched in mandatory terms. Since sub-rule(1) of FR 54 uses the expression "SHALL", which normally conveys a mandatory condition/obligation. Therefore, the Competent Authority is obliged to pass an order under Sub-rule(1) of FR 54-A. FR 54 does not permit such a long and inordinate delay in passing the Order relating to Payment of Pay & allowances in Term of FR 54(1)
(a)&(b). Normal Rule of 'No Work No Pay' would not be applicable in cases where employee although is willing to Work, yet is kept away from work by the authorities for no fault of his. It is settled law that when the provisions of a statute require the statutory Neutral Citation 2024:CGHC:19259 4 authority to exercise a particular power in a given manner, it has to be exercised in that manner alone. Provision as envisaged under FR 54(2) has not been complied with by the competent authority to pass reinstatement order with regard to the suspension or dismissal being wholly unjustified or not, as a result of exoneration of the employee. Therefore, the competent authority is obliged to pass an order under Sub-rule(1) of FR 54-A. When a dismissed officer is reinstated, the officer on such reinstatement goes back to Service. A further order may have to be passed by the authority as to in what manner, the period of suspension & dismissal will be treated, but this was not done in the Present case. Therefore, impugned order dated 18.01.2019 (Annexure P/13) is liable to be set aside.
4. Reliance has been placed on the decisions of Hon'ble Supreme Court in the mater of Union of India and others Vs Jai Prakash singh and another; (2007) 10 SCC 712, Maninderjit Singh Bitta Vs. Union of India and others; (2012) 1 SCC 273, Municipal Corporation of Greater Mumbai, Through Commissioner vs. Anil Shantram Khoje and others and another connected matter; (2016) 15 SCC 726 & on the decision of High Court of Judicature, Madhya Pradesh in the matter of Y.S. Sachan Vs. State of Madhya Pradesh and others; (2003) 4 MP LJ 219.
5. Learned counsel for respondents strongly opposes the prayer of the petitioner and submits that while the petitioner was posted as Laboratory Technician in the Government Veer Surendra Sai PG College, Gariyaband the then District Raipur (presently District Gariyaband), he was placed under suspension vide order dated 22/06/1998 on account of detention for a period of exceeding 48 hours. Prior to that vide judgment of conviction and order of sentence dated 15/04/1998 passed by the Court of learned 1 st Additional Sessions Judge, Jagdalpur District Bastar (CG) in Sessions Trial No. 335/1993, the petitioner was convicted for the offence punishable under sections 304-B and 498-A of IPC and sentenced to undergo RI for 7 years and 2 years respectively for Neutral Citation 2024:CGHC:19259 5 the aforesaid offences. Thereafter vide order dated 31/12/2007, the services of the petitioner has been dismissed as per provisions of the Rule 19(1) of the Chhattisgarh Civil Services (Classification, Control and Appeal) Rules, 1966 on account of conviction of the petitioner. Challenging the termination order dated 31/12/2007, the petitioner preferred a writ petition before this Court which was registered as WPS No. 365/2008 {B.K. Sharma Vs. State of Chhattisgarh and Others}. In the said writ petition the respondents/State had already filed their detailed reply before this Court and the said writ petition was dismissed for want of prosecution vide order dated 10/02/2017. Being aggrieved by the judgment of conviction and order of sentence dated 15/04/1998 passed by the Court of Learned 1st Additional Sessions Judge, Jagdalpur District Bastar (CG) in Sessions Trial No. 335/1993, the petitioner preferred an appeal before the High Court of Madhya Pradesh which was registered as Criminal Appeal No. 95/1998 and after reorganization of the State of Madhya Pradesh, State of Chhattisgarh came into existence as well as the Chhattisgarh High Court and thereafter the said Criminal Appeal was transferred to this Court and vide judgment dated 24/01/2014, the conviction and sentence of the petitioner was set aside.
6. After acquittal, petitioner made representation to the respondents authorities for reinstatement and grant of consequential benefits as per the provisions of Fundamental Rule 54 and 54-B and accordingly vide order dated 09/12/2014, the petitioner was reinstated back in service and in the said order the respondent authorities denied the claim of the petitioner for grant of consequential benefits in light of the judgment passed by the Hon'ble Supreme Court in the matter of Union of India Vs. K.V. Janki Raman and Others reported in (1991) 4 SCC 109. In the order dated 09/12/2014, it has been specifically mentioned that the order dated 09/12/2014 will be subject to the outcome of the order dated passed by this Court in WPS No. 365/2008 and the said writ petition has already been dismissed by this Court vide Neutral Citation 2024:CGHC:19259 6 order dated 10/02/2017 and thus, the reinstatement order dated 09/12/2014 will not remain in existence. After reinstatement of the petitioner, after an inordinate delay, the petitioner preferred writ petition bearing WPS No.5665/2018 before this Court challenging that the period during which the petitioner was placed under suspension and was subsequently reinstated has not been considered by the authorities while granting reinstatement to the petitioner. Vide order dated 30/08/2018, this Court disposed of the said writ petition with certain direction. In compliance of the directions of this Court, the petitioner submitted his representation dated 12/09/2018 which was duly considered by the respondents/State and vide order impugned dated 18/01/2019, the representation of the petitioner has been decided by a well reasoned and speaking order and there is neither any illegality nor arbitrariness in the same. The petitioner has not assailed the order dated 09/12/2014 and the said order has attained finality, however, after passing of the order dated 10/02/2017 by this Court the said order is not in existence at present. Therefore, the instant petition is liable to be dismissed on the ground of delay and laches which have been unexplained by the petitioner.
Reliance has been placed on decisions of the Supreme Court in the case of Karnataka Power Corpn. Ltd. Through its Chairman & Managing Director Vs. K. Thangappan; (2006) 4 SCC 322, Shiba Shankar Mohapatra Vs. State of Orissa; (2010) 12 SCC 471, State of Jammu and Kashmir Vs. R. K. Zalpuri; (2015) 15 SCC 602, Santosh Kumar Bhaskar Vs. State of Chhattisgarh, through the Secretary and others; 2021 SCC OnLine Chh 477, Union of India and others Vs. Jaipal Singh; (2004) 1 SCC 121 & this Court's judgment dated 18.07.2011 passed in W.P. (S) No. 6098 of 2009 in the matter of K. Sunder Raj Vs. Union of India & Ors; 2011 (III) MPJR-CG 61.
7. Heard counsel for the parties and perused the material placed on record.
Neutral Citation 2024:CGHC:19259 7
8. It is not disputed in this case that the petitioner was working as Laboratory Technician in the Govt. Veer Surendra Say PG College, Gariband, District- Gariyaband (C.G.). On 22.06.1998, the petitioner was placed under suspension for offence under Sections 304-B of IPC & 498-A IPC and was also convicted for the said offence vide judgment dated 15.04.1998 in ST No. 335/1993 passed by the 1st Additional Sessions Judge Jagdalpur. On 31.12.2007, the petitioner was dismissed on ground of conviction by Annexure P/2. On 24.01.2014, Criminal Appeal No. 95/1998 was allowed by this Court whereby the conviction of the petitioner for the said offence was set aside. On 09.12.2014, the petitioner was reinstated in service on account of conviction being set aside by this Court. It is also not disputed that the petitioner filed writ petition bearing WPS No. 5665/2018 before this Court and this Court vide order dated 30.08.2018 disposed of the same with some direction and in compliance of the order dated 30.08.2018, the petitioner filed representation before the respondent authorities and the said representation was decided by the competent authority by impugned order dated 18.01.2019 (Annexure P/13).
9. Vide order dated 30.08.2018 passed in WPS No. 5665/2018, this Court observed in paras 4 and 5 as under:-
4. The issue raised in the writ petition does not need any deliberation as it is by now well settled proposition of law that once when the order of conviction, dismissal or suspension is revoked and the employee is taken back in service, the respondents authorities are incumbent to decide the manner in which the intervening period has to be treated. In the instant case, no such order appears to have been passed. The opinion of this Court stands fortified from the decision of the Supreme Court in the case of Jaipur Vidyut Vitran Nigam Limited and others Versus Nathu Ram (2010) 1 SCC 428.
5. Given the aforesaid facts, let respondent no.2 now take a decision as regards how the period of suspension and the period Neutral Citation 2024:CGHC:19259 8 during which the petitioner stood dismissed from service has to be treated in the light of the Rule 54A of the Fundamental Rights.
The respondents would also consider whether the petitioner is entitled for all other consequential benefits which the petitioner would otherwise have got, had he not been placed under suspension or had he not been dismissed. Let this exercise be completed within a period of 90 days from the date of receipt of certified copy of this order.
10.Petitioner submitted representation dated 12.09.2018 before the competent authority and the said representation was decidedvide impugned order dated 18.01.2019 & para 4 of the said impugned order reads as under :-
4@ ekuuh; mPp U;k;ky; }kjk fnukad 30-08-2018 dks ikfjr fu.kZ; esa ;kfpdkdrkZ dk izdj.k ewyHkwr fu;e] 54, ds vraxZr fopkj djus ds funsZ'k fn;s x;s gSA ewyHkwr fu;e 54, ds vuqlkj tgk¡ fdlh 'kkldh; lsod dh inP;qfr] fu"dklu vFkok vfuok;Z lsok fuo`fRr fdlh fof/k U;k;ky; }kjk jn~n dj nh tkrh gS] vFkok ml 'kkldh; lsod dks fdlh vkxkeh dk;Zokgh ds fcuk cgky dj fn;k tkrk gS rks] drZO; ls vuqifLFkfr dh vof/k fu;fer dh tkosxh rFkk 'kkldh; lsod dks U;k;ky; ds funsZ'kksa ds v/khu] ;fn dksbZ gks] mifu;e ¼2½ vFkok ¼3½ ds mica/kksa ds vuqlkj osru rFkk HkRrs dk Hkqxrku fd;k tk;sxkA mYys[kuh; gS fd Jh 'kekZ }kjk lsok ls inP;qfr vkns'k fnukad 31-12-2007 ds fo:) ekuuh; mPp U;k;ky; esa U;k;ky;hu izdj.k MCY;w-ih-¼,l½ 365@2008 nk;j fd;k x;k Fkk] ftls ekuuh; mPp U;k;ky; }kjk ikfjr vkns'k fnukad 10- 02-2017 }kjk [kkfjt dj fn;k x;k gSA vr% fdlh Hkh l{ke U;k;ky; }kjk Jh 'kekZ ds lsok ls inP;qfr vkns'k jn~n ugha fd;s tkus ds dkj.k ewyHkwr fu;e 54 , ds izko/kku mu ij ykxw ugha gksrk gSA bl rF; dh tkudkjh Jh 'kekZ }kjk nk;j fd;k x;k U;k;ky;hu izdj.k dz- MCY;w-ih-¼,l½ 5665@2018 esa ugh nh tkdj rF;ksa dks Nqik;k x;k gSA mijksDr foospuk ,oa rF;ksa ds vk/kkj ij Jh 'kekZ dks fuyacu vof/k esa thou fuoZgu HkRrk] tks mUgsa iwoZ esa izkIr gks pqdk gS] ds vfrfjDr vkSj dksbZ Hkh ykHk ;k LoR;ksa dh ik=rk ugha curh gSA blh izdkj inP;qfr vof/k dks u dke u nke ds fl)kar ij fdlh Hkh vkfFkZd ykHk dh ik=rk ugha curh gSA QyLo:i jkT;
'kklu lE;d fopkjksijkUr ;kfpdkdrkZ }kjk vius vf/koDrk ds ek/;e ls izLrqr vH;kosnu fnukad 30-05-2017 vekU; djrk gSA
11.This Court in the matter of Santosh Kumar Bhaskar Vs. State of Chhattisgarh, through the Secretary and others; 2021 SCC Neutral Citation 2024:CGHC:19259 9 Online Chh 477 held in paras 24, 25, 27, 28, 29 and 30 as under:-
24. In the instant case, the course of action to be pursued with regard to the pay and allowances on reinstatement of the appellant is to be in terms of Rule 14 of the Rules, 1999 (extracted already) which clearly confers a 'discretion' on the Competent Authority. In the case of other employees of the State of Chhattisgarh, similar circumstance is specifically dealt under Rule 54(1) of the Chhattisgarh Fundamental Rules, as extracted below:
"F.R. 54. Pay and allowances on reinstatement- (1) When a Government servant, who has been dismissed, removed or compulsorily retired, is re-instated as a result of appeal or review or would have been so re-instated [but for his retirement on superannuation, while under suspension or not], the authority competent to order re-instatement, shall consider and make a specific order-
(a) regarding the pay and allowances to be paid to the Government servant for the period of his absence from duty including the period of suspension preceding his dismissal, removal or compulsory retirement, as the case may be; and
(b) whether or not the said period shall be treated as a period spent on duty".
25. The above rules are almost similar to Rule 56(1) of the Kerala Service Rules dealt with by the Apex Court in K. Ponnamma (supra), as extracted below:
"Rule 56 of the Rules provides thus:
"(1) When an officer who has been dismissed, removed or compulsorily retired Including an officer who has been retired under Rules 60-A, is reinstated as a result of appeal or review or would have been so reinstated, bur for his retirement on superannuation while under suspension or not, the authority competent to order reinstatement shall consider and make a specific order:
(a) regarding the pay and allowances to be paid to the officer for the period of his absence from duty including the period of suspension preceding his dismissal, removal, or compulsory retirement, as the case may be.
(b) Whether or not the said period shall be treated as a Neutral Citation 2024:CGHC:19259 10 period spent on duty."
27. With reference to almost similar circumstances and the rule position prevailing various Establishments/States, similar verdicts have been passed by the Apex Court at different points of time, to the effect that acquittal in a criminal case will not make the employee concerned to claim full salary and allowance during the period of suspension, as a matter of right, once he is acquitted in the criminal case. It has been held in The Management of Reserve Bank of India, New Delhi v. Bhopal Singh Panchal; ((1994) 1 SCC 541 : AIR 1994 SC
552) that the 'discretion in this regard is vested exclusively upon the employer and the said power is unassailable. In the words of the Apex Court, the person who got involved in the criminal case for his own deeds and misdeeds and later came to be acquitted, getting the benefit of doubt (instead of honourable acquittal'), who has not rendered any work, cannot claim full salary and allowances as a matter of right. It has been further observed that, it will be against the principle of 'no work, no pay and positively inequitable to those who have to work and earn their pay.
28. The legal position was reiterated by the Apex Court again in Krishnakant Raghunath Bibhavnekar v. State of Maharashtra; ((1997) 3 SCC 636) holding that grant of consequential benefits with full backwages cannot be as a matter of course and that it would be deleterious to the maintenance of discipline, if a person suspended on valid consideration is given full backwages as a matter of course on his acquittal. The difference between an 'honourable acquittal' and 'technical acquittal' (when it is because of inadequate evidence/the witness of the prosecution turned hostile or some of the witnesses have not been examined etc.) has been explained by the Apex Court in Inspector General of Police v. S. Samuthiram; ((2013) 1 SCC 598); holding that reinstatement cannot be claimed as a matter of right, merely on acquittal under all circumstances and that it Neutral Citation 2024:CGHC:19259 11 would depend upon the circumstances whether the acquittal is a 'technical acquittal' or an 'honourable acquittal'. The principles in this regard were reiterated in the subsequent decision in State of West Bengal v. Sankar Ghosh; ((2014) 3 SCC 610). The Apex Court further made it clear in Rajasthan State Road Transport Corporation, Jaipur v. Phool Chand (Dead) through Legal Representatives; ((2018) 18 SCC 299) that a workman has no right to claim backwages from his employer as of right, only because the Court has set aside his dismissal order in his favour and directed his reinstatement in service.
29. In the above circumstances, we are of the considered view that the verdict passed by the Division Bench of the Punjab and Haryana High Court cited by the learned counsel for the Appellant is not applicable to the case in hand and that the issue herein is covered by the ruling rendered by the Apex Court in K. Ponnamma (supra), in view of the similar rules applicable in the State of Chhattisgarh.
30. In view of our findings as above, since there is no insinuation against the authorities of the State in any manner (with reference to the involvement of the Appellant in a crime registered against him in connection with the matrimonial dispute raised by the estranged wife) and further since the suspension of the Petitioner was pursuant to the arrest and detention in judicial custody in terms of Rule 4(2) a of the Chhattisgarh Panchayat Service (Discipline and Appeal) Rules, 1999 and further since he admittedly had not worked during the said period, payment of the full salary and allowances during the said period of suspension merely on his acquittal of the criminal charge (as the prosecution had failed to establish the offence) during that period will amount to 'payment of premium to the wrong-doer' i.e. complementing him without extracting any work him. As held by us on Rakesh Kumar Rathore (supra), the tax payers money cannot be sought to be siphoned out to extend unlawful gains to the Neutral Citation 2024:CGHC:19259 12 appellant, insofar as the action against the Appellant was pursuant to his own deeds or misdeeds and more so, when he does not have a case that there was any attempt on the part of the State/Respondents in falsely implicating him in the crime. In the said facts and circumstances, we hold that the appeal is devoid of any merit as well Accordingly the appeal stands dismissed, both on merit and on the delay.
12. Thus, in light of above, in the present case also, the petitioner was in custody in connection with the matrimonial dispute and further suspension & dismissal of the petitioner was pursuant to the arrest and conviction and further since he admittedly had not worked during the said period, payment of full salary and allowances during the said period merely on his acquittal of the criminal charge during that period will amount to payment of premium to wrong-doer.
13. In view of above discussion and looking to the facts and circumstances of the case, this Court does not find any good ground to interfere with the impugned order dated 18.01.2019 (Annexure P/13) and, therefore, the instant petition being devoid of merit is liable to be and is hereby dismissed.
Sd/-
(Rajani Dubey) Judge Ruchi