Sushma Devi v. The State Of Bihar

(warning). Learned counsel for the petitioner on the basis of aforesaid admitted facts has submitted the petitioner cannot be denied entitled for payment of full salary for the period of suspension beyond subsistence allowance paid to her.

3. Learned counsel for the State on the other hand has submitted that the suspension of the petitioner being Patna High Court CWJC No.15334 of 2012 (2) dt.12-02-2013 3 passed due to pendency of criminal case arising out of a purely private litigation and not at the behest of employer she was not entitled for payment of salary for the period of suspension specially when even in the departmental proceeding, she was not fully exonerated.

4. In the considered opinion of this Court, the first and foremost question would be as to whether the criminal case which was lodged against the petitioner was on account of any departmental action? It is here that from the records of the Criminal Appeal No. 1 of 2002 of the Court of Sessions Judge, Patna, it is found that the petitioner and one Jagdish Sah were made accused in criminal case for the offences punishable under Sections- 25(1-B) (a) and 26/35 of the Arms Act. In the First Information Report filed against the petitioner, it was alleged that she had made an attempt to enter into the Secretariat Campus in an unauthorized manner without showing entry pass and in course of her search and seizure a country made pistol was recovered from her bag. The Patna High Court CWJC No.15334 of 2012 (2) dt.12-02-2013 4 trial Court in its judgment had held the petitioner guilty and she was taken into judicial custody whereafter she was awarded sentence to undergo rigorous imprisonment for the offence punishable under Section-25 of the Arms Act as also a separate sentence of rigorous imprisonment for one year for Section-26 of the Arms Act.

5. The aforesaid conviction of the petitioner was sufficient for being removed from service but then the petitioner had continued under suspension because of the pendency of the appeal preferred by her in which the appellate Court had acquitted her of the charge by a judgment dated 04.02.2004.

6. This Court would now not like to make any comment on the perfunctory judgment of the appellate Court as the same in absence of any revision filed by the State has become final but the fact remains that the petitioner both in pre-conviction and post-conviction had remained in custody as with regard to the alleged offence of carrying unlicensed fire arm. As a matter of fact, the Patna High Court CWJC No.15334 of 2012 (2) dt.12-02-2013 5 petitioner was also not exonerated in the departmental proceeding and was awarded a minor punishment.

7. The issue therefore would be as to whether such a person who is acquitted based on insufficient evidence in a criminal case would be entitled for payment of full salary for the period of suspension.

8. The Apex Court in its judgment in the case of Ranchhodji Chaturji Thakore vs Superintendent Engineer, Gujarat Electricity Board, Himmatnagar (Gujarat) and Another reported in 1996(11) SCC 603 had held that mere reinstatement of a person, an accused in a criminal case on acquittal, back in service would not also entitle him to claim back wages because his conduct of involving himself in the crime was the reason for his being not allowed to continue in service and as such even if after his acquittal though he may be entitled for reinstatement back in service but even then back wages cannot be paid to such person and in this regard had held as follows:- "This case does not warrant interference for the reason Patna High Court CWJC No.15334 of 2012 (2) dt.12-02-2013 6 that, admittedly, the petitioner was charged for an offence under Section 302 read with 34 IPC for his involvement in a crime committed on 01.10.1986. The Sessions Judge had convicted the petitioner under Section 302 read with 34 IPC and sentenced him to undergo imprisonment for life. On that basic, the respondents had taken action to have him dismissed from service since he was working as a Junior Clerk in the respondent-Electricity Board. The petitioner challenged the validity of the dismissal order by way of a special civil application filed under Article 226 of the Constitution. Pending disposal, the Division Bench of the High Court by its judgment dated 14.10.1992 acquitted him of the offence. Consequently, while disposing of the writ petition, the learned single judge directed the respondent to reinstate him into the service with continuity of the service, but denied back wages. The petitioner then filed Letters Patent Appeal No.319 of 93 which was dismissed by the impugned order dated 26.08.1993. Thus, this special leave petition. 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 to the situation. The question of back wages would be considered only if the respondents have taken action by way of disciplinary proceedings 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 its 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." (underlining for emphasis)

9. The same issue was again gone into by the Apex Court the case of Krishnakant Raghunath Bibhavnekar vs State of Maharastra and ors reported in 1997(3) SCC 636, wherein, it was held as follows:- "3. The appellant while working as Compositor in Patna High Court CWJC No.15334 of 2012 (2) dt.12-02-2013 7 the Government of India Printing Press, was charged for offences punishable, inter alia, under Section 409 of IPC. Pending trial, he was kept under suspension and was paid subsistence allowance. After his acquittal, the appellant was reinstated but the respondents did not grant the consequential benefits to him. Consequently, the appellant approached the Administrative Tribunal. The Tribunal by the impugned order dated 27-4-1995 in OA No. 40 of 1992, dismissed the application. Thus, this appeal by special leave. 4. Mr Ranjit Kumar, learned counsel for the appellant, contends that under Rule 72(3) of the Maharashtra Civil Services (Joining Time, Foreign Services and Payment during Suspension, Dismissal and Removal) Rules, 1991 (for short “the Rules”), the Rules cannot be applied to the appellant nor would the respondents be justified in treating the period of suspension of appellant, as the period of suspension, as not being warranted under the Rules. We find no force in the contention. It is true that when a government servant is acquitted of offences, he would be entitled to reinstatement. But the question is whether he would be entitled to all consequential benefits including the pensionary benefits treating the suspension period as duty period, as contended by Shri Ranjit Kumar? The object of sanction of law behind prosecution is to put an end to crime against the society and laws thereby intends to restore social order and stability. The purpose of the prosecution of a public servant is to maintain discipline in service, integrity, honesty and truthful conduct in performance of public duty or for modulation of his conduct to further the efficiency in public service. The Constitution has given full faith and credit to public acts. Conduct of a public servant has to be an open book; corrupt would be known to everyone. The reputation would gain notoriety. Though legal evidence may be insufficient to bring home the guilt beyond doubt or foolproof. The act of reinstatement sends ripples among the people in the office/locality and sows wrong signals for degeneration of morality, integrity and rightful conduct and efficient performance of public duty. The constitutional animation of public faith and credit given to public acts would be undermined. Every act or the conduct of a public servant should be to effectuate the public purpose and constitutional objective. Public servant renders himself accountable to the public. The very cause for suspension of the petitioner and taking punitive action against him was his conduct that led to his prosecution for the offences under the Indian Penal Code. If the conduct alleged is the foundation for in acquittal on prosecution, appreciation or lack of sufficient evidence, the question it may end though Patna High Court CWJC No.15334 of 2012 (2) dt.12-02-2013 8 In our considered view emerges whether the government servant prosecuted for commission of defalcation of public funds and fabrication of the records, though culminated into acquittal, is entitled to be reinstated with consequential benefits. this grant of consequential benefits with all back wages etc. cannot be as a matter of course. We think that it would be deleterious to the maintenance of the discipline if a person suspended on valid considerations is given full back wages as a matter of course on his acquittal. Two courses are open to the disciplinary authority, viz., it may enquire into the misconduct unless, the selfsame conduct was subject of charge and on trial the acquittal was recorded on a positive finding that the accused did not commit the offence at all; but acquittal is not on benefit of doubt given. Appropriate action may be taken thereon. Even otherwise, the authority may, on reinstatement after following the principle of natural treating justice, pass appropriate order suspension period as period of not on duty (and on payment of subsistence allowance etc.). Rules 72(3), 72(5) and 72(7) of the Rules give discretion to the disciplinary authority. Rule 72 also applies, as the action was taken after the acquittal by which date the Rule was in force. Therefore, when the suspension period was treated to be a suspension pending the trial and even after acquittal, he was reinstated into service, he would not be entitled to the consequential benefits. As a consequence, he would not be entitled to the benefits of nine increments as stated in para 6 of the additional affidavit. He is also not entitled to be treated as on duty from the date of suspension till the date of the acquittal for purpose of computation of pensionary benefits etc. The appellant to any other is also not entitled consequential benefits as enumerated in paras 5 and 6 of the additional affidavit." including (underlining for emphasis)

10. The aforesaid view of the Apex court in the case of Ranchhodji Chaturji Thakore (supra) was again reiterated in the case of Union of India and others vs Jaipal Singh reported in 2004(1) SCC 121, wherein, it was held as follows:- Patna High Court CWJC No.15334 of 2012 (2) dt.12-02-2013 9 "Heard Mr. Raju Ramachandran, learned Additional Solicitor General appearing for the appellants, who placed strong reliance upon the decision of this Court in Ranchhodji Chaturji Thakore vs Supdt. Engineer, Gujarat Electricity Board reported in (1996)11 SCC 603 wherein this Court, in a case identical to the facts of the present case, has chosen to order only reinstatement but denied back wages on the ground that the Department was in no way concerned with the criminal case and, therefore, cannot be saddled with the liability also for back wages for the period when he was out of service during/after conviction suffered by the respondent in the criminal case. Per contra, Mr. Ranbir Singh Yadav, learned counsel for the respondent sought to place reliance upon an order of this Court dismissing the special leave petition filed summarily against the judgment of the very same High Court dated 19-7-2001 in CWP No. 10201 of 2000. The learned counsel for the respondent, by inviting our attention to the judgment of the High Court in that case contended that on the facts the case on hand was also similar to the case considered therein but this Court dismissed the special leave petition when the relief granted for reinstatement and back wages was contested by the authorities before this Court. 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 by the appellant is one on merits and for reasons specifically recorded therefore it operates as a binding precedent as well. On going through the same, we are in respectful agreement with the view taken in Ranchhodji (supra). If prosecution, which ultimately resulted in acquittal of the person concerned was the behest of or by the department itself, perhaps different consideration 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 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 relevant aspects and considerations. Patna High Court CWJC No.15334 of 2012 (2) dt.12-02-2013 10 Consequently, the order of the High Court insofar as it directed payment of back wages is liable to be and is hereby set aside." (underlining for emphasis)

11. Law laid down in the cases of Ranchchod Chaturji Thakore (supra) and Jaipal Singh was once again reiterated by the Apex Court in the case of Baldev Singh vs Union of India & Ors reported in AIR 2006 SC 531, wherein, it had held as follows:- "As the factual position noted clearly indicates the appellant was not in actual service for the period he was in custody. Merely because there has been an acquittal does not automatically entitle him to get salary for the concerned period. This is more so, on the logic of no work no pay. It is to be noted that the appellant was terminated from service because of the conviction. Effect of the same does not get diluted because of subsequent acquittal for the purpose of counting service. The aforesaid position was clearly stated in Ranchhodji Chaturji Thakore v Superintendent Engineer, Gujarat Electricity Board, Himmatnagar (Gujarat) and Anr. (1996) 11 SCC 603. The position was reiterated in Union of India and Ors v Jaipal Singh, 2004 (1) SCC 121." (underlining for emphasis)

12. In view of the aforesaid series of judgments of the Supreme Court on this very issue, it can be safely said that the authorities of Gaya Collectorate of the Revenue Office of Gaya where the petitioner was appointed on compassionate ground to work as Moharrir could have been made liable to pay salary to the petitioner for the period of suspension had the criminal prosecution been Patna High Court CWJC No.15334 of 2012 (2) dt.12-02-2013 11 launched not at their initiative. As a matter of fact, the petitioner had been made accused at Patna while she was caught red handed with an unlicensed fire arm in her bag. It was this criminal case which led to her being taken into custody in the pre trial stage as also her being convicted by the trial Court. Thus, if she was suspended for the period on account of pendency of the criminal case and ultimately could get acquittal from the appellate Court, she cannot claim payment of salary for the period of suspension.

13. As noted above the petitioner has already been reinstated in service and therefore when her suspension order was revoked in view of the acquittal by the appellate Court, she cannot claim payment of salary for the period of suspension only on account of her being acquitted of the criminal charge. The petitioner in fact on account of her being taken into custody on 07.06.1997 was placed under suspension by order dated 30.07.1997 and that order of suspension was revoked on 09.06.2004 after her Patna High Court CWJC No.15334 of 2012 (2) dt.12-02-2013 12 conviction recorded by the trial Court on 05.12.2001 was set aside by the appellate Court in its order dated

04.02.2004.

14. In that view of the matter, the petitioner would not be entitled for payment of her salary beyond subsistence allowance for the period of suspension. In fact this writ application filed on 23.08.2012 after more than 8 years of cause of action for claiming payment of salary for the period from July 1997 to July 2004 is also clearly hit by the doctrine of delay and laches.

15. As noted above the petitioner was suspended in July-1997, her order of suspension was revoked in the month of June 2004 but the present writ application was filed after more than eight years claiming payment of salary from July 1997 to July 2004 only on 23.08.2012 and thus not payable in view of law laid down by the Apex Court in the case of Union of India Vs. Tarsem Singh reported in (2008) 8 SCC 648, wherein it was held as follows:- Patna High Court CWJC No.15334 of 2012 (2) dt.12-02-2013 13

7. To summarise, normally, a belated service related claim will be rejected on the ground of delay and laches (where remedy is sought application Administrative Tribunal).......................................... Insofar as the consequential relief of recovery of arrears for a past period is concerned, the principles relating to recurring/successive wrongs will apply. As a consequence, the High Courts will restrict the consequential relief relating to arrears normally to a period of three years prior to the date of filing of the writ petition.

8. In this case, the delay of sixteen years would affect the consequential claim for arrears. The High Court was not justified in directing payment of arrears relating to sixteen years, and that too with interest. It ought to have restricted the relief relating to arrears to only three years before the date of writ petition, or from the date of demand to date of writ petition, whichever was lesser. It ought not to have granted interest on arrears in such circumstances”. (underlining for emphasis)

16. Thus both on merits as also on account of inordinate delay in moving this Court, this writ application must fail and is, accordingly, dismissed.

17. Let the records of Criminal Appeal be sent back to court below. (Mihir Kumar Jha, J) Patna High Court Dated the 12th February 2013 Amin/Ranjan-