Original Application No. 126 of 2011 · High Court · 2012

t society. 8. Aggrieved by the dismissal of the O.A. No. 126 of 2011, the petitioner a pplied for review of the learned Tribunal’s order, dated 07.02.2012. The review application, so filed by the petitioner, gave rise to Review Application No. 4 o f 2012. The review application was, however, turned down by the learned Tribuna l by reiterating in its order, dated 02.05.2012, that the impugned order of term ination had been passed against the petitioner on completion of his contractual period of 5 (five) years and that the acquittal of the petitioner, in the crimin al case, had no bearing on the termination of his contractual employment, partic ularly, when his acquittal was subsequent to the termination of his contractual employment and, hence, there was no mistake or error apparent on the face of the record and that there was no other sufficient reason calling for review of its It is in the backdrop of the above facts that the present writ petition earlier order, dated 07.02.2012, aforesaid. 9. has been filed by the aggrieved employee. 10. We have heard Mr. N. Dutta, learned Senior counsel, appearing on behalf of the writ petitioner, and Mr. K. Paul, learned Central Government counsel, app earing on for the respondents. 11. Appearing on behalf of the petitioner, Mr. Dutta, learned Senior counsel , has pointed out that after the petitioner had been placed under suspension by order, dated 19.12.2008, a policy was adopted, on 26.04.2010, by the respondent society, whereunder the officers and staff, who had been appointed, on contractu al basis, against vacant posts, for a period of 5 (five) years, were to be regul arized and, in terms of the said policy decision, while other contractual emplo yees of the respondent society were considered for regularization and requisite orders were issued accordingly for their regularisation, the petitioner’s case w as not considered, because of the fact that no vigilance clearance could be give n in favour of the petitioner, for, a criminal proceeding, as we have mentioned above, had been pending against the petitioner. 12. When, however, points out Mr. Dutta, the petitioner was acquitted in the criminal case, he ought to have been reinstated in service and he ought to have also been, upon reinstatement, considered for regularization of his contractual appointment in the same manner as had been done, in the past, in the case of ot her contractual employees of the respondent society. 13. When an employee, according to Mr. Dutta, happens to be suspended on the ground that there is a criminal case pending against him, such an employee, eve n if contractual, has to be reinstated in service on acquittal of the employee i n the criminal case. In the case at hand, admits Mr. Dutta, the petitioner’s acquittal took p 14. lace subsequent to the termination of his contractual employment; but Mr. Dutta contends that notwithstanding the fact that the termination of the petitioner’s service was on expiry of the period of his contractual appointment, the petition er, nonetheless, ought to have been reinstated in service and, then, his case ou ght to have been considered for regularization in terms of the policy, which the respondent society had adopted, on 26.04.2012, for, while the cases of the othe r contractual employees had been considered for regularization, the petitioner’s case could not be considered due to the fact that he was under suspension and, thus, his right to be considered for regularization was denied, because of his h aving been placed under suspension on the ground that a criminal case was pendin g against him, though he ought to have been reinstated on his acquittal and cons idered for regularization. In support of his submission that an employee, situated as the petitione 15. r was, remains entitled to be reinstated and considered for regularization of hi s service, when he is acquitted in the criminal case in connection wherewith he stood suspension even if he was an ad hoc on contractual employee and even if hi s employment had come to an end, because of the fact that the period of his empl oyment had been over, Mr. Dutta, learned Senior counsel, has placed reliance on the cases of Babu Lal vs. State of Haryana and others, reported in (1991) 2 SCC 335, Ranchhodji Chaturji Thakore vs. Superintendent Engineer, Gujarat Electricit y Board, Himmatnagar (Gujarat) and another, reported in (1996) 11 SCC 603, and U nion of India and others vs. Jaipal Singh, reported in (2004) 1 SCC 121. 16. It is further submitted by Mr. Dutta that in the present case, the learn ed Tribunal has fallen in error by not taking into account the legal effect of a cquittal of the petitioner on his suspension, particularly, when the petitioner had been put under suspension solely on the ground that a criminal case had been pending against him. This aspect, according to Mr. Dutta, ought to have been c onsidered by the learned Tribunal even if the petitioner’s service had been term inated, during the period of his suspension, on the ground that the period of th e contractual employment was over and, hence, the learned Tribunal’s initial ord er, dated 07.02.2012, and also the subsequent order, on the review application, passed on 02.05.2012, need to be set aside. 17. Controverting the submissions, made on behalf of the petitioner, Mr. K. Paul, learned Central Government counsel, has submitted that the termination of the contractual employment of the present petitioner was because of the fact tha t his period of contractual employment had been over and, since on the date, whe n the termination took place, the case against the petitioner was still pending, his subsequent acquittal had no bearing on the legality of the termination of h is contractual appointment, particularly, when his suspension had come to an end on the period of his contractual employments being over.

18. In the light of what have indicated above, let us, consider the case of Babu Lal (supra), which Mr. Dutta relies upon. As the facts of Babu Lal’s case a re substantially similar to the facts of the present case, we reproduce hereinbe low the facts of the case as have been mentioned by the Supreme Court in Babu La l’s case (supra). The facts, appearing at para 2 and 3 of Babu Lal’s case, read as follows: (cid:28)2. The salient facts that gave rise to the instant appeal are as follow s: The appellant was appointed as Sub-Inspector, Food and Supplies, in the Departme nt of Food and Supplies, by respondent 2 by order dated April 13, 1975, on ad ho c basis against the ex-servicemen quota. As per the service rules, the terms an d conditions of the said appointment are as hereunder: ’(i) The post is purely temporary. Your appointment is purely on ad hoc basis a nd shall not exceed six months. Your services are liable to be terminated at an y time during this period without any notice and without assigning any reason. Your services are also liable to be terminated at any time without notice on arr ival of regular candidates from the Haryana Subordinate Services Selection Board .’ 3. The appellant had been continuing in the said post of Sub-Inspector without a ny break till November 17, 1980, i.e., the date of termination of his services. The appellant, however, was served with an order of suspension made by responde nt 2 on April 15, 1980, in view of the criminal proceedings pending against the appellant under Section 420 of the Indian Penal Code during the pendency of whic h the order of termination was made on November 17. 1980. The said criminal pro ceeding being Criminal Case No. 1413 of 1981, was decided on October 21, 1981, w herein he has been acquitted of the said charge. The Additional Chief Judicial Magistrate, Narnaul had found that : ’ &..Babu Ram accused was not present at the spot and he had no role to pay in th e distribution of the cement. The APP could not point out even a single factor from the file by which the participation of this accused can be said to have bee n proved by the prosecution. As such, accused, Babu Ram, cannot be held guilty of the offence charged and he is acquitted of the same. (cid:29)

19. The facts, as reproduced above, from the case of Babu Lal (supra), clear ly show that the appellant, Babu Lal, was an ad hoc appointee, his appointment h aving been made for a period of not exceeding six months with a condition append ed thereto that his service would be terminated, at any time, during the said pe riod of six months without any notice and without assigning any reason, the ad h oc appointment having been made on 13th April, 1975. The appellant, however, con tinued to work, on the basis of the said ad hoc appointment, as Sub-Inspector, F ood and Civil Supplies, till 17th November, 1980, when his ad hoc appointment wa s terminated. Preceeding termination of his ad hoc appointment, the appellant, B abu Lal, was, however, served with an order of suspension on 15th April, 1980, b ecause of a criminal proceeding pending against him under Section 420 IPC. While the criminal proceeding was still pending, the ad hoc service of t 20. he appellant, Babu Lal, was terminated, as indicated hereinbefore, on 17th Novem ber, 1980. Thus, there is no manner of doubt that Babu Lal’s ad hoc service was terminated during the pendency of the criminal proceeding and during the period, when he was undergoing suspension.

21. In other words, his ad hoc appointment, which appears to have been renew ed, from time to time, since 13th April, 1975, was terminated during the period of his suspension, but before the criminal proceeding came to an end, the termin ation having not taken place because of the pendency of the criminal proceeding, but because of the fact that his initial appointment, made on 13th April, 1975, was brought to an end on 17th November, 1980, at a time, when the petitioner wa s undergoing suspension. 22. The criminal proceeding, wherein the appellant, Babu Lal, was involved, however, ended in his acquittal. The appellant, Babu Lal, then, instituted a sui t seeking declaration to the effect that the order of suspension and the order o f termination were illegal, wrong, arbitrary and without jurisdiction and he is entitled to re-instatement with effect from the date of his suspension and, ther efore, entitled to be regularized with all benefits of service, for, in terms of the notification, dated 01.01.1980, issued by the Chief Secretary, Govt. of Har yana, an ad hoc employee was entitled to be regularized subject to fulfillment o f certain conditions and the conditions, which were required to be fulfilled by an ad hoc employee, were fulfilled and satisfied by the appellant, Babu Lal, bef ore his ad hoc appointment was terminated. 23. Notwithstanding the fact that the service of the appellant, Babu Lal, st ood terminated before he was acquitted, the learned trial Court took the view, i n the suit, that upon acquittal of the appellant, Babu Lal, his order of suspens ion ought to be revoked and his case ought to have been considered for regulariz ation. A decree was accordingly passed, which was challenged in an appeal. The l earned appellate Court upheld the decree and dismissed the appeal. A second appe al was, then, carried to the High Court by the Government and the second appeal was allowed. The decision in the second appeal came to be challenged before the Supre 24. me Court. The Supreme Court pointed out, in Babu Lal (supra), that the pivotal q uestion is, firstly, whether, during the period of suspension, arising out of th e criminal proceeding, the order, terminating the service of the appellant, Babu Lal, could have been made, when the criminal case was still pending and, second ly, whether, on his acquittal in the criminal case, Babu Lal ought to have been re-instated. 25. The Supreme Court, therefore, held, in Babu Lal (supra), that when susp ension of the appellant, Babu Lal, was on the ground that there was a criminal c ase pending against him, Babu Lal’s service could not have been terminated durin g the period of suspension, when the criminal case was still pending. Consequent ly, held the Supreme Court, on the acquittal of the appellant, Babu Lal, he was entitled to be re-instated inasmuch as it was the pendency of the criminal case, which had led to suspension of the appellant, Babu Lal, and it was during the p eriod of such suspension that his service was terminated and with the criminal c ase having ended in acquittal, the termination of the service of the appellant, Babu Lal, became bad in law calling for reinstatement of the appellant, Babu La l. 26. In other words, the Supreme Court took the view that termination of the ad hoc service of the appellant, Babu Lal, during the period of his suspension, when the suspension was due to pendency of a criminal proceeding, ought to have been revoked, the petitioner ought to have been re-instated in service by revok ing his suspension order and, then, his case ought to have been considered for r egularization in terms of the Government’s relevant notification. 27. In short, what the Supreme Court pointed out, in Babu Lal (supra), was t hat when suspension of an employee, ad hoc or otherwise, is on the ground of pen dency of a criminal proceeding, his service, ad hoc or otherwise, ought not be t erminated until the criminal case comes to an end and when the employee earns ac quittal in the criminal case, he is entitled to be re-instated in service and, t hen, considered for regularization in terms of the relevant Government policy or else, his termination would be, and would remain as, stigmatic and penal.

28. The Supreme Court further pointed out, in Babu Lal (supra), that the seq uence of facts gives rise to an irresistible inference that the impugned order o f termination of the ad hoc service of the appellant, Babu Lal, was penal in nat ure having civil consequences, though the order might have been innocuous and ev en if the order of termination is couched, as in the present case, in accordance with the terms and conditions of the order of appointment (i.e., the appointmen t was ad hoc), and, hence, such an order shall be set aside. Support for the co nclusion, so reached, were drawn by the Supreme Court from its earlier decisions in Rajinder Kaur Vs. State of Punjab, reported in (1986) 4 SCC 141, Anoop Jaisw al Vs. Government of India, reported in (1984) 2 SCC 369, and Hardeep Singh Vs. State of Haryana, reported in 1987 Supp SCC 295. With the conclusions reached, as indicated above, in Babu Lal (supra), t 29. he Supreme Court directed re-instatement of the appellant, Babu Lal, in the serv ice immediately, payment of his wages and consideration of his case for regulari zation in terms of the norms embodied in the Government’s relevant policy. In the light of what have been discussed above, in Babu Lal’s case (supr 30. a), we find that, in the present case, the termination of the petitioner’s contr actual appointment was on the ground that the period of his contractual employme nt was over. The fact of the matter, however, remains that the petitioner was u nder suspension on the date of termination of his contractual employment. Even before this termination took place, while other employees of the respondent soci ety, who were on contractual appointment, had been considered for the purpose of regularization of their contractual appointment, the petitioner’s case suffered from non-consideration for regularization, because of the fact that he was unde r suspension and the suspension was on the ground that there was a criminal case pending against him. Thus, one fact was woven with the other and the legality of the termination of the petitioner’s contractual employment cannot be consider ed de hors from, and wholly independent of, the petitioner’s subsequent acquitta l in the criminal case and the legal consequences of his acquittal on his not be ing considered for regularization. 31. While we consider, as indicated above, the legal consequences of the pet itioner’s acquittal on the termination of his contractual employment vis-à-vis n on-consideration of his case for regularization of his contractual appointment, it cannot be ignored that had the petitioner’s contractual employment continued, he would have been reinstated in service on his acquittal in the criminal case and the order of suspension would have been revoked accordingly. 32. In the light of the position of law, as laid down by the Supreme Court, in Babu Lal’s case (supra), this Court is of the considered view that since the petitioner stood acquitted in the criminal case, which was the sole ground for t he petitioner’s suspension, the respondent society ought to have reinstated him in service so that his case could be considered for regularization as the cases of other employees had already been considered in terms of the policy adopted by the respondent society. We, therefore, agree that there is substance in the gr ievance of the petitioner and the learned Tribunal, to our mind, fell in serious error in not considering the legal consequences of the acquittal of the petitio ner by ignoring the fact that the petitioner’s case had suffered from non-consid eration for regularization of his service, because of his suspension, which was the outcome of a criminal proceeding, wherein he, ultimately, stands acquitted.

33. We need to bear in mind that even if the petitioner was not entitled, as of right, to extension of his contractual employment, the fact remains that his initial appointment was made on contractual basis, on 27.04.2006 and the same w ould have ended on 26.04.2011, but for extension of a period of three months and with the end of the extended period of three months, his service was terminated and he was, thus, penalized on the sole ground of pendency of a criminal case i nasmuch as he was placed under suspension due to pendency of the criminal case a nd his case was also not considered for regularization, because he was under sus pension for being involved in a criminal case. With the acquittal having been ea rned by the petitioner, he was entitled to re-instatement in service and, then, to be considered for regularization in terms of the policy, which the Government had at the relevant point of time, but had not, for reasons indicated hereinbef ore, resorted to in the case of the petitioner. In the case of Ranchhodji Chaturji Thakore (supra), which, as indicated 34. above, has also been referred to by Mr. Dutta, suffice it to point out that in R anchhodji Chaturji Thakore (supra), the Supreme Court has laid down, in no uncer tain words, that, when a person is reinstated on acquittal, he is not entitled t o back wages inasmuch as the question of such person’s entitlement to back wages would be considered only if it is found that the person, who was put under susp ension, and, subsequently, reinstated in service, had been proceeded against by way of disciplinary proceedings and the action of the authority, drawing discipl inary proceeding, is found to be unsustainable in law and if the person was foun d to have been unlawfully prevented from discharging the duties. In Ranchhodji C haturji Thakore (supra), since the petitioner had involved himself in a crime, t hough he was later acquitted, he had disabled himself from rendering service on account of conviction and incarceration in jail. Under the circumstances, held the Supreme Court, that Ranchhodji Chaturji Thakore (i.e., the appellant, in Ran chhodji Chaturji Thakore (supra), was not entitled to payment of back wages. 35. Because of what have been discussed and pointed out above, we are firmly of the view that had the petitioner been a permanent employee, his acquittal wo uld have made his employer revoke the suspension order and reinstate him in serv ice and, on his reinstatement, though he might not have been entitled to back wa ges, he would have remained entitled to receive wages subsequent to the date of his reinstatement. 36. In the present case, the consequences of the petitioner’s acquittal were that he ought to have been reinstated even if he was no longer, in effect, in t he service of the respondent society and, on his reinstatement, the respondent s ociety ought to have considered his case for the purpose of regularization, as h ad done in the case of other contractual employees by the respondent society in terms of the policy, which had been adopted, at the relevant point, of time by t he respondent society. As this aspect, too, of the petitioner’s case appears to have not been given due consideration by the learned Tribunal, we feel constrai ned to interfere with the learned Tribunal’s orders, which stand impugned in thi s writ petition. In the result and for the reasons discussed above, this writ petition su 37. cceeds. The impugned orders, dated 07.02.2012 and 02.05.2012, passed by the lea rned Tribunal, are hereby set aside. The respondents are hereby directed to rev oke the petitioner’s suspension order as well as the termination order, reinstat e him in service as a contractual employee and, then, consider his case for regu larization in terms of the erstwhile policy of regularization of services of the contractual employees, which was adopted by the respondent society, as indicate d above. The petitioner shall be paid his wages from 01.12.2011, i.e., the date of his acquittal in the criminal case. With the above observations and directions, this writ petition stands di

38. sposed of. 39. No order as to costs.