Balbir Singh vs State of Haryana

Rajiv Narain Raina, J.—The petitioner was a conductor in Haryana Roadways. He was placed under suspension on 28th April, 1998 following registration of a criminal case against him. The Department reinstated him to service on 29th October, 1999. However, the Additional Sessions Judge, Sonepat convicted the petitioner and others vide judgment dated 26th August, 2000 for committing various criminal offences of a heinous nature including S. 148 read with S. 149, 203 read with S. 149 and 307 as well as for murder. On conviction, the petitioner was dismissed from service on 25th October, 2000 and his subsistence allowance was limited to the amounts already drawn.

The Division Bench of this Court by judgment and order dated 22nd July, 2009 acquitted the petitioner and some others of the charges framed against them by giving them the benefit of doubt. The acquittal came in Crl. Appeal No. 510-DB of 2000. The petitioner on being acquitted made a request for reinstatement to service. Since no action was taken by the respondents on the representation, the petitioner approached this Court through C.W.P. No. 15685 of 2009 which was disposed of with a direction to the respondents to consider the demand notice by passing a speaking order within a period of three months. These directions were issued on 13th October, 2009. In compliance of those directions, the petitioner was reinstated to service w.e.f. 17th February, 2010. The financial benefits for the intervening period 25th October, 2000, the date of dismissal to 17th February, 2010, the date of reinstatement were denied.

Aggrieved, the petitioner again approached this Court through C.W.P. No. 12271 of 2010 for grant of salary for the period from 22nd July, 2009, the date of acquittal to 23rd February, 2010 the date of reinstatement. The petition was disposed of with a direction granting salary for the period 22nd July, 2009 to 23rd February, 2010 which the petitioner has now received less the disputed anterior period and he was left free to represent to the department for this relief and the same, if presented, would be considered and decided by the competent authority in accordance with law keeping in view the provisions of Rule 7.5 of the Civil Service Rules, Vol. 1, Part-1 as interpreted by this Court. This order was passed on 3rd December, 2010.

Accordingly, the petitioner staked his claim for back wages and other consequential financial benefits from the period of dismissal till the date of judgment in appeal i.e. 22nd July, 2009 by making a representation to the department. The department has rejected the representation by the impugned order dated 6th April, 2011 (P-7) challenging which the present petition has been filed invoking Article 226 of the Constitution of India. The petitioner submits that this order is illegal, unjust, unfair, arbitrary and unconstitutional. Still further, he submits that it has been passed contrary to the provisions of Rule 7.5 of the Punjab Civil Service Rules in their application to the State of Haryana. Rule 7.5 reads as follows:-

"7.5 An employee of Government against proceeding have been taken either for his arrest for debt or on a criminal charge or who is detained under any law providing for preventive detention should be considered as under suspension for any periods during which he is detained in custody or is undergoing imprisonment and not allowed to draw any pay and allowances (other than any subsistence allowance that may be granted in accordance with the principles laid down in rule 7.2 for such periods until the final termination of the proceedings taken against him or until he is released from detention and allowed to rejoin duty, as the case may be. An adjustment of his allowance for such periods should there after be made according to the circumstances of the case, the full amount being given only in the event of the officer being acquitted of the blame or (if the proceedings taken against him were for his arrest for debt), of its being proved that the officer''s liability arose from circumstances beyond his control or the detention being held by the competent authority to be unjustified."

The structure of the rule is built around acquittal from blame on a criminal charge or if it is proved that the official''s liability arose from circumstances beyond his control or the detention being held by the competent authority to be unjustified. It would be well to remember that the petitioner was acquitted of murder and other serious charges by giving him the benefit of doubt. In criminal law such an acquittal even though based on benefit of doubt is taken as proof of innocence and there may be no great difference between honorable acquittal and acquittal by giving the benefit of doubt. However, in service law the meaning can be different, with different hues and diverse fallouts on the relief sought from the administrator and then from the Court. This vital difference has been explained recently in the context of false declarations made to procure appointment to public service in the police department and fitness for appointment or retention in service on discovery of false declarations in attestation forms by the Supreme Court in relation to service law in Commissioner of Police, New Delhi and Another Vs. Mehar Singh,

There is therefore no automatic right to back wages and other financial benefits on reinstatement for the period spent out of service on dismissal on conviction and much would depend on the facts of each case.

Learned counsel for the petitioner relies on the judgment of the Supreme Court in Jaipur Vidyut Vitran Nigam Ltd. and Others Vs. Nathu Ram, . In this case, the Supreme Court dealt with the case of a casual labour working in the erstwhile Rajasthan State Electricity Board who was subsequently regularized on the post of Helper but was caught accepting bribe by the Anti Corruption Bureau which led to his suspension and registration of a criminal case. He was sentenced by the trial Court for committing offences under various provisions of Indian Penal Code read with S. 5(1)(d) and S. 5(2) of the Prevention of Anti Corruption Act, 1947 and was sentenced to one year rigorous imprisonment. The trial Court acquitted the Helper of the charges framed against him. He was reinstated but denied back wages. In these circumstances, the Court held that the circular issued by the Nigam provided that the employee could be deemed to be notified to full pay and allowances for the period from the date of acquittal to the date of reinstatement. The Supreme Court considered its earlier judgment in Union of India (UOI) and Others Vs. Jaipal Singh, to which this Court would refer to later in the narration of the case.

Learned counsel for the petitioner then relies on Division Bench judgment of this Court to which I was a party in the case, General Manager Operation Circle, Dakshin Haryana Bijli Vitran Nigam, Narnaul and others v. Mathura Dass Gupta, 2012 (4) S.C.T. 7 : 2013 (1) SLR 389 : 2012 (4) RSJ 306. The issue involved grant of consequential benefits on acquittal of a criminal charge. This Court said that the normal rule of "No work no pay" is not applicable to cases where an employee although willing to work is kept away from discharging labour to justify salary by the authorities for no fault of his then he would be entitled to consequential benefits. The Court here was dealing with a case arising from an FIR registered against Mathura Dass Gupta under S. 7 of the Prevention of Corruption Act, 1988. The trial Court''s conviction recorded was overturned by this Court after noticing Jaipal Singh and Nathu Ram cases. In both the above cases relied upon by counsel, the employer had a direct role in the charges arising out of relationship of master and servant in the background of corruption charges laid and therefore, on failure of the prosecution in bringing home the charge it could be said that employees were kept out of work by acts of the employer and therefore the question would arise of restitution of money for the period a person was deprived of performing duty.

Learned counsel for the petitioner still further relies on a Division Bench decision of this Court in Shashi Kumar v. Uttari Haryana Bijli Vitran Nigam and another, 2005 (1) S.C.T. 576 : 2005 (1) RSJ 718 which was also decided on a similar frame-work of facts as in the above Division Bench decision where the common thread of a charge laid under the Prevention of Corruption Act, 1988 failed before the trial Court and before the High Court leading to acquittal. In Shashi Kumar''s case this Court held that the concept of honorable acquittal or full exoneration can have no place in criminal trial. The moment the criminal charge fails in a Court of law, the person should be deemed to be acquitted of the blame. The Court held that any other interpretation would defeat the very purpose of Rule 7.5 of the Civil Services Rules and Regulation 7.2(d) of the HSEB Employees'' Punishment and Appeal Regulations, 1990. The legal statement at the time the judgment was rendered may be correct. However, an altogether new angle arises on this issue in the context of a criminal charge put to trial when examined on service law principles. The true question which arises from the angle of the pay master is whether it had anything to do with the charge laid, the trial held, the conclusion that followed or acquittal ordered by a superior court whether honorable or by giving benefit of doubt. If an offence is committed against society and against the body of persons privately executed outside employment has really nothing to do with the employer. It was not part of the duty of the petitioner viz-a-viz his employer to commit crime because of which he deprived the State of his services or to demand salary for the period and yet the State be saddled with backwages for work not done. On acquittal in a criminal case of which the employer had nothing to do then the question arises as to why should it be compelled to pay money on the principle of ''no work, no pay''. In Union of India Vs. K.V. Jankiraman, etc. etc., relied on by the petitioner the Supreme Court held that the normal rule of ''no work no pay'' is not applicable to cases where the employee is completely exonerated in criminal/disciplinary proceedings. The tests of complete exoneration on a charge laid by the employer is another matter. The words ''complete exoneration'' used in K.V. Jankiraman case are meaningful words and meaningful words have to be given full meaning.

The element of benefit of doubt thus creeps into the decision making process, firstly at the hands of the disciplinary authority on preponderance of probabilities and then by Court on judicial review of administrative action. Benefit of doubt means that the Court was not one hundred percent sure and therefore fell back on the well accepted and cardinal principle of criminal jurisprudence that let a hundred criminals go free but not one innocent man should be hanged. K.V. Jankiraman''s case arose out of criminal charges through employer action. Therefore, reliance of the petitioner on K.V. Jankiraman is misplaced. There was no ''complete exoneration'' in this case in the sense that the Court gave the benefit of doubt to the accused.

The next submission that merely because this Court directed in its order dated 3rd December, 2010 that for the remaining period, the petitioner may make a representation and that it should be considered and decided by the competent authority in accordance with law and the provisions of Rule 7.5 of CSR Volume-I Part-I should be interpreted by this Court as one which declares any right which has to be blindly implemented by the competent authority should not detain this Court. The competent authority was bound to decide the case on merits and in accordance with rules and the law on the subject expressed through judicial pronouncements. As I read the order dated 3rd December, 2010 passed by the learned Single Judge of this Court, I do not find any imperatives expressed therein to decide the representation in a one way or the other. The competent authority was duty bound to apply the law independently and free from the burden of the order dated 3rd December, 2010 since it imposed none.

In cases involving criminal acts leading to police remand and judicial custody and thereafter accused faces trial and is convicted of criminal offences would be in deprivation of employer''s rights of availing the services of such person not by there own actions but by an act of the employee for which it pays salary for work done out of public funds and thus cannot be compelled to pay for no fault of it. Therefore, fault theory becomes relevant. Who was at fault? If the Government initiates action and fails it must pay. If the employee gets into trouble, suffers jail and faces trial which has nothing to do with the employer, is convicted or acquitted he has only himself to blame. The State exchequer cannot be lightly burdened for acts which do not originate in the employer nor over which it has any control. The employer/State Government in this case can only watch and wait for the end of the criminal trial held.

In Union of India (UOI) and Others Vs. Jaipal Singh, the Supreme Court dealt with the issue at hand in a case arising from conviction of an employee u/s 302 IPC by the trial Court but acquitted by the High Court in appeal and its effect on backwages upon reinstatement for the period he was out of service due to involvement in a criminal case observed thus:

"If prosecution, which ultimately resulted in acquittal of the person concerned was at the behest or by department itself, perhaps different considerations 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 or 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 [ins. Ranchhodji Chaturji Thakore Vs. Superintendent Engineer, Gujarat Electricity Board, Himmatnagar, (Gujarat) and another, 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 reasons that the earlier discharge was on account of those criminal proceedings and conviction only, the appellants are well within their rights to deny backwages 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 backwages also, without adverting to all such relevant aspects and considerations. Consequently, the order of the High Court insofar as it directed payment of backwages are liable to be and is hereby set aside."

For the aforestated reasons, this Court finds no legal infirmity or lack of application of mind or misapplication of rule in rejecting the request of the petitioner for full salary for the period prior to acquittal by this Court in the criminal trial. The validity of the impugned order dated 6th April, 2011 (P-7) is thus upheld.

The writ petition fails and is dismissed in limine.