The Principal Secretary Human Resources Department, Govt. of Bihar v. Patna
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.13825 of 2013 ====================================================== Shatrughan Prasad Sah, son of late Jannu Sah, resident of village Bhaptyahi, P.O. Bhaptyahi, P.S. Bhaptyahi, District Supaul, at present posted as Peon Bihari Gurmaita High School, Bhaptyahi .... .... Petitioner/s 1. The State Of Bihar 2. The Principal Secretary Human Resources Department, Govt. of Bihar, Versus Patna 3. The Director of Education, Bihar, Patna 4. The District Education Officer Supaul, District Supaul 5. The Headmaster of Bihari Gurmaita High School Bhaptyahi, District Supaul .... .... Respondent/s ====================================================== Appearance : For the Petitioner/s : Mr. Rajiva Ranjan For the Respondent/s : Mr. Rishiraj Sinha ====================================================== CORAM: HONOURABLE MR. JUSTICE MIHIR KUMAR JHA ORAL ORDER 2 24-07-2013 Heard learned counsel for the parties. 2. The prayer of the petitioner in this writ application reads as follows: “Directing the respondents to pay the salary of the petitioner from 31.8.2010 to 25.8.2011 in which period the petitioner was in jail custody and was acquitted from the case.” 3. Learned counsel for the petitioner has submitted that the petitioner was as a Peon in the Government High School but having been made an accused in Bhaptyahi P.S.Case No. 48/2010he was sent to jail and had remained in jail custody till 2.9.2011 and on account of his being made accused in a criminal case he had remained suspended till he was taken back in service Patna High Court CWJC No.13825 of 2013 (2) dt.24-07-2013 2 on 25.2.2013 when he was acquitted of the charge under judgment of the trial court dated 20th February, 2013. Learned counsel for the petitioner in this regard also explains that payment of salary of the petitioner for the period 31.8.2010 to 25.8.2011 in which the petitioner was in jail custody has not been made and to that extent the order of the District Education Officer, Supaul dated 16.4.2013 is bad. 4. Learned counsel for the petitioner in this regard has also placed reliance on an order of this Court dated 3.1.2013 in C.W.J.C.No. 8713/2010 (Nageshwar Prasad v. the State of Bihar & ors.).
Legal Reasoning
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 Patna High Court CWJC No.13825 of 2013 (2) dt.24-07-2013 10 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 Patna High Court CWJC No.13825 of 2013 (2) dt.24-07-2013 11 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 insofar as it directed payment of back wages is liable to be and is hereby set aside.” (underlining for emphasis) 10. 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 Anor. Patna High Court CWJC No.13825 of 2013 (2) dt.24-07-2013 12 (1996)11 SCC 603. The position was reiterated in Union of India and ors. vs. Jaipal Singh, 2004(1) SCC 121.” (underlining for emphasis) 11. Thus, in view of settled law which has not at all been noticed by the learned Single Judge in the case of Nageshwar Prasad (supra), this Court will go to hold that the petitioner’s prayer for payment of salary for the period he was in jail custody or even during the period of suspension after he had been released on bail and till the date of revocation of his suspension on account of pending criminal case can not be allowed by this Court. 12. As a matter of fact even otherwise whatever has been considered by the learned Single Judge of this Court in the case of Nageshwar Prasad (supra) will not be applicable because whatever was done in that case in relation to holding of a departmental proceeding after acquittal in the criminal case is not applicable in the facts of the present case. There would be also no occasion for this Court to go into the correctness or otherwise of the view taken by the learned Single Judge in the case of Nageshwar Prasad (supra) which is based on consideration of provisions of Rule 97(3) of the Bihar Service Code. In the present case the denial of salary for the period of suspension beyond subsistence allowance however is not in question. The petitioner only wants a direction Patna High Court CWJC No.13825 of 2013 (2) dt.24-07-2013 13 from this Court that the respondents should have paid the full salary for the period the petitioner was in jail custody because he was subsequently acquitted of the charge by the trial court. That, however, does not seem to be a valid claim of the petitioner because once it becomes clear that the petitioner was involved in a criminal case pertaining to his own family affairs in which his employer had no role to play, the State cannot be saddled with the burden of paying salary for the period the petitioner had not worked on account of his being in jail custody. 13. In that view of the matter, this Court would hold that no error was committed by the District Education Officer in not allowing payment of salary for the period the petitioner was in jail custody and therefore, the same can also not be interfered in any manner by this Court.
Arguments
5. Learned counsel for the State, on the other hand, has submitted that there would be no question of payment of salary for the period the petitioner had remained in jail custody because such criminal case against the petitioner was not lodged by the department and in fact the involvement of the petitioner in the criminal case was on account of his personal family dispute and therefore, the Government cannot be made liable to pay for the period he had not worked. 6. In the considered opinion of this Court the prayer of the petitioner made herein must be rejected. From the copy of the judgment of the trial court it is absolutely clear that the petitioner Patna High Court CWJC No.13825 of 2013 (2) dt.24-07-2013 3 was made accused in relation to murder of his daughter-in-law by him and his other family members. It was in relation to the murder of the daughter-in-law of the petitioner, namely, Bharti Devi that Bhaptyahi P.S.Case No. 48/2010 was lodged against the petitioner and his five other family members and the petitioner was taken into custody for the charge of murder of his own daughter-in-law. The trial court thereafter had framed the charge and the petitioner was acquitted on account of no evidence being laid to support the case. Thus, when the petitioner had earned acquittal on 20.2.2013 his suspension was revoked by the District Education Officer by his order dated 25.2.2013. The question would be whether the petitioner would be entitled for payment of salary for the period of suspension including the period in which he was in jail custody i.e. 31.8.2010 to 25.8.2011. This Court in fact would find that the petitioner would not be entitled for payment of salary for the entire period of his suspension beyond subsistence allowance for the period he was not in jail custody and not even subsistence allowance for the period he was in jail custody. 7. 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 Patna High Court CWJC No.13825 of 2013 (2) dt.24-07-2013 4 person, an accused in a criminal case on acquittal, back in service would not also entitled 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 that, admittedly, the petitioner was charged for an offence under section 302 read with 34 IPC for his involvement in a crime committed on 1.10.1986. 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 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 26.8.1993. Thus, this special leave petition. Patna High Court CWJC No.13825 of 2013 (2) dt.24-07-2013 5 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) 8. The same issue was again gone into by the Apex Court in the case of Krishnakant Raghunath Bibhavnekar vs. State of Maharastra and ors., reported in (1997) 3 SCC 636, wherein, it was held as follows:- Patna High Court CWJC No.13825 of 2013 (2) dt.24-07-2013 6 “3. The appellant while working as Compositor in 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 Patna High Court CWJC No.13825 of 2013 (2) dt.24-07-2013 7 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 prosecution though it may end in acquittal on appreciation or lack of sufficient evidence, the question emerges whether the government servant prosecuted for commission of defalcation of public funds and fabrication of the records, though culminated into qcquittal, is entitled to be reinstated with consequential benefits. In our considered view this grant of consequential benefits with all back wages etc. cannot Patna High Court CWJC No.13825 of 2013 (2) dt.24-07-2013 8 be as a matter of course. We think that it would be deleterious to the maintenance of the discipline if a person suspected on valid considerations is given full back wages as a matter of course on his acquittal. Two courses are ope 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 nto 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 principles of natural justice, pass appropriate order including treating suspension period as period of not only 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 suspensions pending the trial and even after acquittal he was reinstated into service, he would not be entitled to the consequential benefits. As a consequences, 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 is also not entitled to any other consequential benefits as enumerated in paras 5 and 6 of the additional affidavit.” Patna High Court CWJC No.13825 of 2013 (2) dt.24-07-2013 9 (underlining for emphasis) 9. 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 ors. vs. Jaipal Singh, reported in (2004)1 SCC 121, wherein, it was held as follows: “ Heard Mr. Raju Ramachandran, learned Additional Solicitor General appearing for the appellants, who
Decision
14. In the result this application fails and is, accordingly, dismissed. (Mihir Kumar Jha, J) Patna High Court Dated the 24th July 2013 A.F.R./surendra/-