Arjunlal Tungaria vs S.B.B.J. and Others

Prakash Tatia, J.—Heard learned Counsel for the parties.

This appeal is against the order of learned Single Judge dated 08.08.2001 by which the appellant petitioner has been denied back wages, while issuing direction to the competent authority to decide the petitioner''s case/representation for reinstating the petitioner after his acquittal in criminal case.

According to the learned Counsel for the petitioner with the acquittal of petitioner in criminal case petitioner became entitled to reinstatement as well as for all consequential benefits. In alternate, the consideration for grant of back wages depends upon the fact of the case as held by the Hon''ble Supreme Court, and this Court while exercising the jurisdiction under Article 226 of the Constitution of India should not have straightway denied the back wages to the petitioner. It is submitted that Hon''ble Apex Court held that if the prosecution is launched by the employer itself and the employee is acquitted then, the consideration may be different for grant of back wages than the consideration when prosecution is not initiated by the employer.

Learned Counsel for the respondents employer vehemently submitted that the petitioner was acquitted by the appellate Court on technical ground, as the trial Court failed to obtain the signatures of witnesses on the statement recorded in the Court during the trial. It is submitted that it is not necessary to grant back wages in all cases of reinstatement.

Learned Counsel for the respondents relied upon the judgment of the Hon''ble Apex Court delivered in the case of Ranchhodji Chaturji Thakore Vs. Superintendent Engineer, Gujarat Electricity Board, Himmatnagar, (Gujarat) and another, wherein the petitioner was dismissed from service on account of his conviction by the criminal Court, for his involvement in the offence u/s 302/34 IPC. Subsequently, the petitioner was acquitted and therefore, was reinstated in the services. The Hon''ble Supreme Court held that the question of back wages would arise only if the action by way of Disciplinary proceedings have been taken against employee and action was found to be unjustainable in law and he was unlawfully prevented from discharging the duties. In the above case the employee was not prevented from discharging duties because of the act of the employer, therefore, and because of the conduct of the employee, he was denied the back wages.

The Hon''ble Apex Court also held that each case is required to be considered on its own background. The above judgment was considered by the Hon''ble Supreme Court in another case, Union of India (UOI) and Others Vs. Jaipal Singh, and position was reiterated.

Learned Counsel for the respondent also pointed that as per clause No. 19.3(c) of Bipartite Settlements the authority concerned itself could have taken a decision about the back-wages and the authority vide order annexure R/1 has already denied the back-wages to the petitioner appellant.

We have considered the submissions of the learned Counsel for the parties and perused the facts and order passed by the learned Single Judge.

It appears from the facts of the case that petitioner who faced the criminal charges on complaint by the employer was acquitted by the appellate Court vide judgment dated 12.10.2000. He submitted various representations before the employer for his reinstatement in service, which obviously also for the other benefits also but, those representations were not considered by the employer then, the petitioner approached this Court by filing writ petition wherein learned Single Judge directed the respondent to consider the claim of the petitioner for reinstatement along with notional benefits including seniority but, except back wages. Since the subject matter before this Court in the writ petition was only that the petitioner''s representation for his reinstatement and for grant of other benefits was not considered then, there was no occasion for this Court in writ jurisdiction to go into the entitlement of the entire claim of the service benefits of the petitioner which is further clear as the learned Single Judge himself did not choose to decide whether petitioner was entitled to reinstatement and rightly had remanded the matter to the concerned authority for passing appropriate orders after considering the representations of the petitioner then, in that situation, the matter should have been left for the decision of the competent authority even for other benefits and back wages and by order of this Court the petitioner should not have been denied the claim straightway by taking jurisdiction of the authority concerned who was competent to pass the order by considering the facts of the case and law as laid down by the Apex Court in the judgment referred above as well as, case per even Bipartite Settlement Condition No. 19.3(c).

Be that as it may be, even as per the judgment cited by the learned Counsel for the respondent himself each case is required to be examined as per the facts of the case and that could have been done by the competent authority who was competent to pass the order. At this stage, learned Counsel for the respondent submitted that in recent judgment delivered in case of Banshi Dhar Vs. State of Rajasthan and Another, even when prosecution was lodged by the employer even than back wages were denied. Since this Court is not deciding the issue whether in the facts of the case, the petitioner is entitled to back wages or for any other relief and since this issue is required to be decided by the concerned competent authority, the appeal succeeds. The order dated 08.8.2001 so far as it denied back wages to the petitioner is concerned, is set aside and it is made clear that the competent authority shall decide the issue in accordance with rules uninfluenced by any observation made in this order with respect to the petitioner''s entitlement for any other benefit or back-wages.