Airports Authority of India and Others vs Gautam Das and Others

T.K. Dutt, J.—This Court has heard the learned Advocates for the respective parties and has considered the relevant materials on record.

The respondent Nos. 2 and 5 in the writ petition (W.P. 5806 (W) of 2001) are the appellants in the instant appeal. The writ petitioner is the respondent No. 1 in the instant appeal. The order challenged in the instant appeal is an order dated 7.2.2005 passed by a learned Single Judge of this Court in the said W.P. 5806 (W) of 2001. It appears that the writ petitioner is an employee of the Airports Authority of India i.e. an employee under the appellants. The writ petitioner was implicated in a criminal case and there is no dispute that a criminal case was initiated against the writ petitioner on the charge that the writ petitioner has accepted bribe. The said criminal case went up for trial but it was found that the petitioner was not guilty of any offence and the writ petitioner was acquitted by the Criminal Court on a positive finding. However, during the period the petitioner faced trial, he was kept under suspension by the authority concerned. There is also no dispute with regard to the fact that the authorities concerned did not proceed against the writ petitioner departmentally.

The learned Advocate appearing on behalf of the writ petitioner/respondent No. 1 submitted that the writ petitioner was in jail only for a period of 48 hours and thereafter the writ petitioner was released on bail.

The learned Advocate for the appellants did not dispute such submission of the learned Advocate for the respondent No. 1.

It further appears that after the writ petitioner was acquitted by the Criminal Court, the writ petitioner approached the authorities concerned for reinstatement in service but the authority concerned remained inactive in the matter which compelled the Writ petitioner to move this Court in a writ proceeding on an earlier occasion. However, ultimately the authority concerned reinstated the writ petitioner in service but without any back wages. It appears that the authority concerned i.e. the appellant No. 2 by order dated 8.3.2001 ordered that the order of suspension is revoked and the writ petitioner is reinstated in his service as Junior Engineer (Civil) with effect from 8.3.2001 but the writ petitioner''s period of absence during the period of suspension will not be treated as period spent on duty and such reinstatement is being done without any back wages. It will also appear from the said order dated 8.3.2001 that the appellant No. 2 took into consideration the past records of the writ petitioner and the said appellant No. 2 observed in the said order that during the year 1984 the writ petitioner''s two increments were stopped for submission of fake inspection report pertaining to release of S.B.A. instalments for construction of house by an employee. It was also observed by the appellant No. 2 in the said order that the writ petitioner did not render any service to the organization concerned during the period of suspension.

Challenging such order dated 8.3.2001 passed by the appellant No. 2, the writ petitioner moved the aforesaid writ petition and a learned Single Judge by the said order dated 7.2.2005 was pleased to direct the authority concerned to grant the writ petitioner full back wages by treating the writ petitioner as on duty in respect of the period of suspension and his Lordship was pleased to modify the said order passed by the appellant No. 2 accordingly.

The appellants have challenged the said order dated 7.2.2005 in the instant appeal.

The learned Single Judge was pleased to observe in the order under challenge in the instant appeal that the writ petitioner was exonerated from the criminal charges on a positive finding and it appears that the authorities concerned have overlooked such fact.

The learned Advocate appearing on behalf of the appellants i.e. the authorities concerned, has submitted that the writ Court should not have interfered with the order passed by the disciplinary authority as judicial review is concerned with reviewing not the merits of the decision but the decision-making process itself. In support of such contention he cited a decision reported at Tata Cellular Vs. Union of India, and referred to paragraph 90 of the said reports. There cannot be any dispute with regard to such proposition of law as laid down by the Hon''ble Apex Court but in the facts of the instant case it appears from the aforesaid order dated 8.3.2001 that the disciplinary authority took into consideration a certain incident which took place in the year 1984 when two increments of the writ petitioner were stopped on certain grounds. The stoppage of increments has no connection with the present dispute.

The learned Advocate appearing on behalf of the writ petitioner/respondent No. 1 rightly submitted that in so far as the incident of 1984 is concerned, it was an extraneous matter which should not have been taken into consideration by the disciplinary authority while passing the said order dated 8.3.2001. The said learned Advocate submitted that if the writ petitioner had committed a mistake or was found guilty of any misconduct, he was adequately punished by stoppage of the said increments and the said incident in the present case should not have weighed with the disciplinary authorities.

It appears on perusal of the said order dated 8.3.2001 that that was the main reason as to why the said order was passed by the disciplinary authority whereby the back wages of the writ petitioner was refused. The other consideration was that the disciplinary authority found that the writ petitioner did not render any service during his period of suspension.

Thus, we find that the decision-making process itself was under challenge before this Court and not the conclusion only.

The learned Advocate for the appellants submitted that in the facts and circumstances of the instant case, the disciplinary authority was quite justified in refusing the back wages in view of Regulation No. 25 of the International Airports Authority of India Employees (Conduct, Discipline and Appeal) Regulations, 1987. The said Regulation 25 is quoted below:

"Treatment of the period of suspension.--(1) When the employee under suspension is reinstated, the competent authority may grant to him the following pay and allowances-

(a) if the employee is exonerated and not awarded any of the penalties mentioned in regulation 26, the full pay and allowances which he would have been entitled to if he had not been suspended, less the subsistence allowance already paid to him; and

(b) if otherwise, such proportion of pay and allowances as the competent authority may specify.

(2) In a case falling under clause (a), the period of absence from duty shall be treated as the period spent on duty. In a case falling under clause (b), the period of absence from duty shall not be treated as a period spent on duty unless the competent authority so directs."

The said learned Advocate referred to a decision reported at Krishnakant Raghunath Bibhavnekar Vs. State of Maharashtra and others, and referred to paragraph - 3 of the said reports. The relevant portion of the said paragraph is quoted as follows:

"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 acquittal, is entitled to be reinstated with consequential benefits? In our considered view, this grant of consequential benefits with all back wages etc. cannot be as matter of course. We think 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 misconduct unless, the self-same 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 justice, pass appropriate order including treating suspension period as not on duty, (and on payment of subsistence allowance etc.) Rules 72(3), 72(5) and 72(7) of the Rules give a discretion to the disciplinary authority."

It appears from the said paragraph that the disciplinary authority may enquire into the alleged misconduct unless the self-same conduct was subject of charge and on trial the acquittal was recorded on a positive finding. Thus, if the trial before the Criminal Court has resulted on a positive finding that the person against whom the charge was made was not guilty of any offence, the disciplinary authority cannot enquire into the matter. Of course, if the finding is based on the principle of benefit of doubt be given to the accused, the disciplinary authority can enquire into the alleged misconduct. In Regulation 25(a) of the said Regulation of 1987, it has been stipulated that if the employee is exonerated and not awarded any of the penalties mentioned in the Regulation 26, the full pay and allowances which he would have been entitled to if he had not been suspended less the subsistence allowance already paid to him should be granted to such employee on reinstatement. In the facts of the instant case the disciplinary authority could not have proceeded against the writ petitioner as the Criminal Court had acquitted the writ petitioner on a positive finding and not merely on the basis of benefit of doubt.

The learned Advocate appearing on behalf of the appellants submitted that in the instant case Regulation 25(b) should apply as there was no disciplinary proceeding and, therefore, it was the discretion of the competent authority whether or not to award back wages on reinstatement.

The question before us is whether in a case where no disciplinary proceeding could be initiated even against an employee in view of acquittal of such employee by the Criminal Court on a positive finding can there be any sufficient reason to refuse the back wages on reinstatement. There is no dispute with regard to the fact that there has been no disciplinary proceeding against the writ petitioner and the order of acquittal by the competent Criminal Court stands.

The learned Advocate appearing on behalf of the appellants referred to a decision reported at State of U.P. and others Vs. Nand Kishore Shukla and another, in support of his contention that even if only one charge is proved out of five charges made the disciplinary authority may pass an order of removal after suspension. There cannot be no dispute with regard to such proposition of law.

In the instant case it will appear from the records that the writ petitioner was not found guilty of any charge at all. Of course, the said learned Advocate for the appellants cited the said decision in the context of the said order dated 8.3.2001 passed by the disciplinary authority wherefrom it appears that the disciplinary authority took the incident of 1984 into consideration and also the fact that the writ petitioner did not render any service during the period of suspension. It may be noted here that the undisputed fact is that the writ petitioner was in jail for only 48 hours and thereafter the writ petitioner was released on bail.

The learned Advocate for the writ petitioner/respondent No. 1 submitted that it was for the authorities concerned to reinstate the writ petitioner after he was released on bail but the authorities concerned did not do so and since the writ petitioner was not in jail, the writ petitioner could have resumed his services. It is also a salutary principle of law that the discretion which has to be exercised by the authorities concerned has to be a judicious one.

In the instant case we find that the principle of no work no pay should not have been applied by the authorities concerned as the writ petitioner was very much available for resuming his services with the appellate authorities.

This Court is of the view that clause (a) of Regulation 25 is applicable in the facts of the instant case and in terms of the said clause, the authority concerned was bound to pay the full pay and allowances subject to the subsistence allowance which was paid to the writ petitioner during his period of suspension. Clause 25(a) has to be read as a whole and it appears that in terms of the said clause where an employee is exonerated and not awarded any of the penalties, he should be granted full pay and allowances. In the instant case the writ petitioner was not awarded any of the penalties and no disciplinary proceeding was even initiated against the writ petitioner. The criminal Court acquitted the writ petitioner on a positive finding. Thus, we find that there was no justification for the appellate authorities in refusing back wages to the writ petitioner on his reinstatement. The decision cited by the said learned Advocate for the appellants reported at Baldev Singh Vs. Union of India (UOI) and Others, cannot be applied to the facts and circumstances of the instant case as it appears that the person concerned in the facts of the said reported case was charged with an offence under section 302/34/452 of the Indian Penal Code and the factual position was that the said person was not in actual service for the period he was in custody. In the present case the writ petitioner was released on bail after 48 hours and the writ petitioner was very much available to resume his services. It was for the authorities to allow the writ petitioner to resume his services after 48 hours being spent in jail but the authorities decided not to allow the writ petitioner to resume his services and waited till the trial was over. Even thereafter the writ petitioner had approached the authorities concerned for reinstatement but the authorities concerned kept silent over the matter and the writ petitioner had to move this Court by way of writ petition. It was only after that that the authorities concerned took steps to reinstate the writ petitioner but without back wages. This Court is of the view that in the facts and circumstances of the present case, the principle ''no work no pay'' cannot be applied. Another decision cited by the learned Advocate for the appellants i.e. one reported at Ranchhodji Chaturji Thakore Vs. Superintendent Engineer, Gujarat Electricity Board, Himmatnagar, (Gujarat) and another, also cannot be applied in the facts and circumstances of the instant case. In the facts of the said reported case it appears that the person concerned was charged under section 302 read with section 34 of the Indian Penal Code. It was stated in paragraph-3 of the said reports that each case requires to be considered in its own backdrop. In the said case it was found by the Hon''ble Apex Court that the writ petitioner had disabled himself from rendering the service on account of conviction and incarceration in jail and under such circumstances the writ petitioner in the said case was found not entitled to back wages. In the present case as already noted above, the writ petitioner was released on bail immediately after 48 hours.

The learned Advocate for the appellants cited another decision reported at Ashok Kumar Sonkar Vs. Union of India (UOI) and Others, and referred to paragraph 27 of the said reports in support of his contention that mere violation of the principles of natural justice is not enough unless the person concerned shows that there has been some prejudice caused to him. There also cannot be any dispute with regard to such principle of law but in the present case the said decision is not relevant as it appears that the authorities concerned have taken extraneous matter into consideration while denying the writ petitioner the full back wages.

The learned Single Judge of this Court while passing the order under challenge in this appeal was pleased to direct that the authority concerned shall grant the writ petitioner full back wages by treating the period of suspension as a period the writ petitioner should be deemed to have spent on duty.

This Court is of the view that in the facts of the instant case since the authorities concerned could not have even initiated the disciplinary proceeding against the writ petitioner in view of the verdict given by the competent Criminal Court, there was no justification in withholding the back wages of the writ petitioner. In view of the discussions made above, this Court does not find any reason to interfere with the order passed by the Hon''ble Single Judge, The appeal has no merits and it is dismissed.

After the aforesaid order is passed, the learned Advocate for the appellants prays for stay of operation of the above order.

The learned Advocate for the respondent No. 1 objects to such prayer. However, the operation of the aforesaid order is stayed for a period of six weeks.

Urgent certified xerox copy of this judgment, if applied for, shall be given to the parties as expeditiously as possible on compliance of all necessary formalities.

R.K. Bag, J.

I agree.