Rajasthan High Court - Jodhpur
Sohanlal Rajpurohit vs Chairman Cum M.D., Rrvpn Ltd. & Anr on 30 October, 2012
Author: Govind Mathur
Bench: Govind Mathur
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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.
O R D E R
Sohanlal Rajpurohit v. The Chairman, RRVP Nigam
Ltd., Jaipur & Anr.
S.B.CIVIL WRIT PETITION NO.5862/2010
under Article 226 of the Constitution of
India.
Date of Order :: 30th October, 2012
P R E S E N T
HON'BLE MR.JUSTICE GOVIND MATHUR
Mr. M.R.Singhvi, Senior Advocate, assisted by
Mr. Mohit Singhvi, for the petitioner.
Mr. Ravi Bhansali, for the respondents.
....
BY THE COURT :
REPORTABLE The petitioner, a Junior Engineer with Rajasthan State Electricity Board (predecessor of the respondent company - the Rajasthan Rajya Vidhyut Prasaran Nigam Ltd., Vidhyut Bhawan, Jaipur) by order dated 22.7.1986 was placed under suspension as a consequent to initiation of investigation for a criminal charge. After filing police report and framing of charge he was subjected to a trial that culminated into his conviction for the offences punishable under Prevention of Corruption Act, 1988. The disciplinary authority by order dated 5.8.1992 dismissed him from service looking to the conduct that led to his conviction. The conviction recorded by the trial court vide judgment dated 19.6.1992 came to be set aside and the -2- petitioner was acquitted from the charges levelled on acceptance of the appeal (SBCriminal Appeal No.254/1992) by this Court on 27.11.2008. On acquittal, the petitioner claimed for reinstatement in service but of no consequence, thus, this petition for writ was preferred to have a direction for reinstatement in service with all consequential benefits including extension of an opportunity to opt for pension introduced by the Rajasthan State Electricity Board in the year 1989. During pendency of the writ petition, the Secretary (Administration) of the Rajasthan Rajya Vidhyut Prasaran Nigam Ltd. vide order dated 28.12.2010 set aside the order dated 5.8.1992, reinstated the petitioner in service but denied payment of back wages and also for any amount beyond the subsistence allowance already paid for the period of suspension. The contents of the order dated 28.12.2010 are as under:-
"Pursuant to the judgment dated 27.11.2008 passed in SB Criminal Appeal No.254/1992 by the Hon'ble Raj. High Court, Jodhpur, the Chairman & Managing Director, RVPN, in consultation with the Director (Fln.), RVPN, Jaipur, has decided that -
(1)The dismissal of Shri Sohan Lal Rajpurohit, JEn, RSEB, Siwana, ordered vide order No.RSEB/Enq./C-4059/D.1667 dated 5.8.1992 is set-
aside and he shall be deemed to have been reinstated in service w.e.f. 05.08.1992.
(2)Since Shri Sohan Lal Rajpurohit, has been acquitted from the charges leveled against him by allowing the benefit of doubt by the Hon'ble Raj.
High Court, his acquittal cannot be treated as fully exoneration in terms of clause 2 of Reg.41 of ESR-1964, as such -
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(i)Shri Rajpurohit would not be entitled for the pay and allowances during the suspension period i.e. w.e.f. 22.7.1986 to 4.8.1992 except the subsistence allowance already paid to him.
(ii)His period of suspension shall be treated as the period spent on duty only for the purpose of continuity of service.
(3) Shri Rajpurohit, shall be deemed to have been retired on 31.12.2007.
(4)The pay & allowances for the period 5.8.1992 to 31.12.2007 shall not be paid to Shri Sohan Lal Rajpurohit, JEn in cash as he had not performed any kind of duties during this period. However, notional pay fixations shall be allowed to him for this period."
The petition for writ then was suitably amended to challenge the order dated 28.12.2010 to the extent it denies payment of wages beyond the subsistence allowance during the period of suspension and the complete back wages from the date of dismissal to 31.12.2007, the day on which the petitioner would have been retired from service, if he would have not been dismissed.
The submission of counsel for the petitioner is that once the petitioner has been acquitted from the criminal charges and he has been reinstated in service, then there is no justification for denying complete back wages including the wages in addition to subsistence allowance. It is asserted that the respondents at their own decided to dismiss the petitioner without waiting for final out come of the appeal against the judgment of the trial court, thus, it is not open for them to bank upon the -4- doctrine of "no work no pay". The contention advanced is supported by a Full Bench judgment of this Court in Union of India v. Ramswarup (DBCivil Special Appeal No.44/1983) decided on 4.3.1987. In the case aforesaid the Full Bench while examining the referred question that "whether the dismissal from service on the ground of conviction of a government servant during the pendency of his appeal against the conviction and sentence before this Court is valid even though till then the conviction of the respondent had not become final?", held as under:-
"The provisions in clause (a) of the second proviso to Article 311(2) of the Constitution have been incorporated in public interest and for public good like the provisions contained in Article 31(2) of the Constitution of India. As held by the courts the reason is that a government servant during the criminal trial gets sufficient opportunity to defend himself. Even in case of departmental enquiry under Article 311(2) of the Constitution after a government servant is punished and is dismissed, removed or reduced in rank he has a right to file an appeal but for that matter the order of dismissal or removal or reduction in rank is xxxxx xxxxx in abeyance by mere filing of an appeal. But stay xxxxx xxxxx by the appellate court if the theory of merger in the appellate order is attracted which is bound to be attracted as and when the appeal is disposed of, thereby mere filing of the departmental appeal the order may become inoperative, which it does not become. Even in cases where by having recourse to clause (a) of the second proviso, where the same can be applied, a penalty mentioned therein is inflicted, the employee has a right of departmental appeal during the pendency of that -5- appeal the conviction by the trial court may be set aside, then the conviction will be ineffective, nonest from the date it was recorded and the appeal will have to be accepted. Even otherwise on the quantum of penalty the appellate court may take a lenient view than one taken by the appointing authority. To our mind the true construction of clause (a) is that the conviction of a person by a criminal court comes into operation no sooner it is made and it will be open to the government to pass an order of dismissal or removal or reduction in rank immediately after the criminal court records conviction and it is for the appointing authority to decide as to whether the conduct which has led to conviction on a criminal charge should be considered during the pendency of appeal against conviction or not. If the appointing authority decides that the conduct which has led to the conviction of a government servant on a criminal charge should be taken into consideration and the government servant should be dismissed or removed or reduced in rank, it will always run the risk of conviction being later set aside in appeal or revision and no sooner the conviction is set aside, it will take effect from the date it was recorded and is wiped of and the government servant will be entitled to be reinstated with full back wages. If we read clause (a) of the second proviso to Article 311(2) of the Constitution, as it is and as we should read it, we are unable to construe 'conviction' and to our mind the conviction will mean and include the conviction by the trial court and clause (a) of second proviso to Article 311(2) of the Constitution, will be attracted even though an appeal against conviction is pending in a higher court, and the proceedings have not been disposed of."-6-
It is also submitted by learned counsel that during pendency of the suspension the respondents introduced pension scheme for its employees under a notification dated 6.1.1989 and as per clause (1) of the scheme aforesaid an opportunity should have been given to the petitioner to opt for pension scheme within one month from the date of his reinstatement, but no such opportunity was accorded in the instant matter.
Per contra, the stand of the respondents is that as per regulation 41 of the Rajasthan State Electricity Board Employees' Service Regulations, 1964 (hereinafter referred to as "the Regulations of 1964") the case of the petitioner was considered for grant of pay and other allowances, but the same were not allowed to him as neither suspension nor dismissal from service were wholly unjustifiable. The competent authority after considering the entire material available on record arrived at the conclusion that the employee was not fully exonerated and also that his suspension was not unjustified, thus, no claim as made is sustainable. As such, in view of the provision referred above the order impugned does not suffer from any wrong. The submission advanced is supported by the judgments of Hon'ble Supreme Court in Management of the Reserve Bank of India, New Delhi v. Bhopal Singh Panchal [(1994)1 SCC 541] and the Greater Hyderabad Municipal Corporation v. M. Prabhakar Rao [(2011)8 SCC 155].
With regard to applicability of the pension scheme introduced on 6.1.1989, the stand of the respondent -7- company is that the petitioner in the month of January, 1989 was in employment of the Rajasthan State Electricity Board, but he did not choose to exercise option, thus, he is to be continued under the then applicable provident fund scheme, and he is not entitled to get application of the pension scheme.
Heard counsel for the parties.
Before coming to the issue regarding entitlement of the petitioner for complete back wages on his acquittal from criminal charges, I deem it appropriate to discuss the issue relating to applicability of pension scheme dated 6.1.1989 qua the petitioner. As per clause (1) of the scheme aforesaid the employees of the Rajasthan State Electricity Board were required to exercise their option within a period of 90 days from the date of notification. Counsel for the parties informed the Court that the period of 90 days was extended time to time. Be that as it may, proviso to clause (1) of the scheme aforesaid mentions that in case of a Board's employee, who is under suspension, may exercise option, within one month from the date he takes over charge of the post, in case he did not exercise option within the time limit of 90 days. In the case in hand, the petitioner was facing suspension on 6.1.1989. He came to be reinstated under the order dated 28.12.2010 and by the same order he came to retire from service w.e.f. 31.12.2007. The retirement of the petitioner was effected retrospectively, i.e. from the day he attained the age of superannuation. As per proviso to clause(1) of the notification dated 6.1.1989 the petitioner had an opportunity to exercise option on -8- 28.12.2010, when he was ordered to be reinstated, but that was not allowed. The respondents as a matter of fact should have permitted the petitioner to exercise option to have application of pension scheme under the order dated 28.12.2010 itself. Non extension of such opportunity is not only unjust and arbitrary, but is in conflict of the provisions of the proviso to clause(1) of the pension scheme. The petitioner, thus, is entitled to exercise option for pension.
The much contested issue between the parties is with regard to grant of complete wages to the petitioner from the date of his reinstatement and also for the payment of wages beyond the subsistence allowance during the period of suspension. As per regulation 41 of the Regulations of 1964 "when an employee who has been dismissed, removed or suspended is reinstated, the authority competent to order the reinstatement shall consider and make a specified order:-
(a) Regarding the pay and allowance to be paid to the employee for the period of his absence from duty, and
(b) Whether or not the said period shall be treated as a period spent on duty.
(c) Whether or not the suspension, removal or dismissal was wholly unjustifiable.
(2) Where such competent authority holds that the employee has been fully exonerated or in the case of suspension that -9- it was wholly unjustified, the employee shall be given the full pay and dearness allowance to which he should have been entitled had he not been dismissed, removed or suspended, as the case may be.
(3) In other cases, the employee shall be given such proportion of such pay and allowance not exceeding one half as such competent authority may decide.
(5) In a case falling under clause (3) the period of absence from duty shall not be treated as period on duty except under order of such competent authority only for any specific purpose including the purpose for the computation of the period of probation during which the employee remained under suspension".
Keeping in view the provision of service rules as well as judgment dated 27.11.2008, the competent authority vide order dated 28.12.2010 (Annexure-7) took following decisions :-
(1)The dismissal of the petitioner ordered vide order No.RSEB/Enq./C-4059/D.1667 dated 5.8.1992 was set-aside and he was deemed to have been reinstated in service w.e.f.
05.08.1992.
(2)The acquittal of the petitioner was treated to be based on extension of the benefit of doubt, thus, that is not full exoneration in terms of clause 2 of Reg.41 of ESR- 1964,
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(3)in view of not having a full exoneration, the petitioner was not found entitled for the pay and allowances for the suspension period i.e. w.e.f. 22.7.1986 to 4.8.1992 except the subsistence allowance already paid, (4)the period of suspension was treated as the period spent on duty only for the purpose of continuity of service, (5)the petitioner was treated retired from service w.e.f. 31.12.2007, and (6)on basis of the doctrine of "no work no pay" the actual payment of pay and allowances were denied to the petitioner, but his pay fixation was ordered to be made on notional basis by granting all increments and allowances admissible.
As per regulation 41, the competent authority was to consider and make a specified order regarding pay and allowance to be paid to the petitioner for the period of suspension and dismissal by examining as to whether the suspension or dismissal was wholly unjustifiable or not.
The competent authority, on acquittal allowed notional pay fixation for the entire period of dismissal as spent on duty. Meaning thereby, there is no break in his service and he shall be entitled for determination of pension and other post retiral benefits by taking into consideration the entire period of his services i.e. from 12.11.1970 to 31.12.2007. As such, no loss shall occur to
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the petitioner in his pension and other post retiral benefits due to his dismissal from service under the order dated 5.8.1992.
The pay and allowances for the period of suspension has been denied to the petitioner in light of clause (2) of regulation 41 of the Regulations of 1964, being not found unjustifiable. The denial of the wages beyond the subsistence allowance suffers from no wrong in view of the judgment of Hon'ble Supreme Court in Greater Hyderabad Municipal Corporation's case (supra). In the case in hand also the petitioner was placed under suspension on being subjected to investigation for criminal charges. His placement under suspension was found necessary for fair investigation and also to maintain public faith in public service. The suspension, thus, was justified and in view of the regulation 41, which as a matter fact is analogous to FR 54-B(3) considered by Hon'ble Apex Court in the case of Greater Hyderabad Municipal Corporation's case (supra), the competent authority rightly denied the full wages for the period of suspension.
The issue with regard to grant of pay and allowances for the period from 5.8.1992 to 31.12.2007 is considered in para 4 of the order impugned and such payment has been denied on the count that the petitioner "had not performed any kind of duties during this period".
In precise, the issue now deserves consideration is about application of the concept of "no work no pay" in present set of facts. The stand of the petitioner is that
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as per judgment of Hon'ble Full Bench in Union of India v. Ramswarup (supra), if a civil servant is dismissed from service on the count of the conduct that led to his conviction, then on acquittal by higher court a risk and liability for reinstatement in service with full back wages is to be borne by the employer. This ratio, however, is required to be examined in light of the law laid down by the Apex Court in several other cases including in the State of Kerala & Ors. v. E.K. Bhaskaran Pillai [(2007)6 SCC 524] and Commissioner, Karnataka Housing Board v. C. Muddaiah [(2007)7 SCC 689]. In these cases Hon'ble Supreme Court examined the concept of "no work no pay" in detail and ruled that this principle cannot be applied as a rule of thumb. In the case of State of Kerala v. E.K. Bhaskaran Pillai (supra) the Apex Court observed that "so far as the situation with regard to monetary benefits with retrospective promotion is concerned, that depends upon case to case. There are various facets which have to be considered. Sometimes in a case of departmental enquiry or in criminal case it depends on the authorities to grant full back wages or 50 per cent of back wages looking to the nature of delinquency involved in the matter or in criminal cases where the incumbent has been acquitted by giving benefit of doubt or full acquittal. Sometimes in the matter when the person is superseded and he has challenged the same before court or tribunal and he succeeds in that and direction is given for reconsideration of his case from the date persons junior to him were appointed, in that case the court may grant sometimes full benefits with retrospective effect and sometimes it may not. Particularly when the administration has wrongly denied his due then in that case
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he should be given full benefits including monetary benefit subject to there being any change in law or some other supervening factors. However, it is very difficult to set down any hard-and-fast rule. The principle "no work no pay"
cannot be accepted as a rule of thumb. There are exceptions where courts have granted monetary benefits also".
The resultant legal position emerges out is that in the cases of dismissal or removal from service the payment of complete back wages is not a natural and essential consequence of subsequent reinstatement in service, but depends upon facts of the particular case. In general, if an employee has been kept away from performing the duties on account of the act solely attributable to the employer, he shall be entitled for monetary benefits, however, if the employee remains absent without justification, then he shall not be entitled for monetary benefits on subsequent reinstatement for any reason. The quantum of monetary benefit too may vary case to case looking to the existing facts and while doing so a prime consideration is of balancing the equities between the parties.
Returning to the case in hand, the petitioner was initially convicted by the trial court for an offence punishable under the Prevention of Corruption Act, 1988 in addition to an offence punishable under Section 161 Indian Penal Code. The offences for which the petitioner was punished, certainly involve moral turpitude, thus, no wrong was committed by the employer/respondent while dismissing him from service by relying upon the conduct that led to
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his conviction. The conviction was set aside subsequently by the appellate court by extending benefit of doubt. The relevant portion of the judgment passed by the appellate court deserves to be quoted and i.e. as under:-
"It has not been proved beyond doubt that any other person could not have put the tented currency notes in the drawer. In this respect the initial version of the accused is also material in which he has specifically stated that he has not taken any bribe money and he is not aware as to who had kept the money inside the drawer. Right from the beginning he has stated the same thing and same defence plea has been taken in the statement recorded under Section 313 Cr.P.C., wherein the accused stated that somebody might have planted that money. Further he has also explained that the solution turned into pink because his hands were got dipped in the sodium carbonate solution after he took out the money from the drawer of the table at the instruction of the Dy.SP. In these circumstance the main stress of the prosecution that the colour of the solution changed, looses is significance. Further no reliance can be placed on the statement of PW- 1 Daul Singh as he is not a reliable witness. He has changed his earlier stand. It has not been found proved by any corroboration that money was put by him as per the direction of the accused. The other witnesses have not supported his version. In this factual position on the basis of other evidence no definite conclusion of guilt can be based. On the other hand the accused- appellant has from the right of the initial stage denied the receipt of bribe money. Thus the possibility of putting the tainted money by any one else cannot be ruled out, therefore, the benefit of doubt goes to the accused-appellant."
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The employer/respondent on acquittal of the petitioner set aside the order of dismissal and reinstated him in service, but merely on that count it cannot be said that dismissal was wholly unjustifiable. The dismissal effected under the order dated 5.8.1992 was having legal sanction being based on the conduct that led to conviction by the court competent. The employer/respondent exercised powers available to it under the relevant regulations. On setting aside of the conviction by extension of the benefit of doubt, the employer/respondent set aside the order of dismissal and reinstated the petitioner in service. While doing so he was declared entitled for having notional fixation of pay to determine his post retiral benefits. The dismissal of the petitioner in the factual background noticed above was a bonafide one and the employer/respondent is not required to be burdened with payment of complete back wages. However, at the same time it is also required to be kept in mind that the petitioner faced dismissal and its agony for number of years and he did not perform duties as a consequent to the order of dismissal which was essentially an act of the employer/respondent, thus, he deserves to be compensated by balancing the equities. In view of the facts and circumstances discussed above, I deem it appropriate to allow the petitioner to have 50% of back wages with interest @ 8% per annum for the period he faced dismissal from service i.e. from 5.8.1992 to 31.12.2007.
Accordingly, this petition for writ is allowed in part. The petitioner shall not be entitled for the wages beyond subsistence allowance already paid to him for the
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period he remained under suspension. The respondents shall pay 50% amount of the back wages with interest @ 8% per annum for the period the petitioner faced dismissal i.e. from 5.8.1992 to 31.12.2007. The petitioner shall also be entitled to exercise option for pension in accordance with the applicable pension scheme and if he opts for pension, he shall be entitled for the same from the date of his retirement i.e. 1.1.2008. He shall also be entitled for interest @ 8% per annum on the arrears of pension and other post retiral benefits. All the arrears accruing to the petitioner as a consequent to the directions above are required to be paid to him on or before 28.02.2013.
No order to costs.
( GOVIND MATHUR ),J.
kkm/ps.