Constable Bhola Singh vs State of Punjab and Others

A.K. Sikri, C.J.—The facts which are not in dispute are that the appellant herein was dismissed from service after holding departmental enquiry against him. His departmental appeals were also rejected. He challenged the order of dismissal by filing civil suit. This civil suit was decreed in his favour vide judgment and decree dated 24.2.1998 passed by the Civil Court. As per that judgment, the dismissal was set aside and direction was given to reinstate the appellant in service. However, it was also stated that the appellant shall not be entitled to any salary or benefits as he had not been in service for the period when he was under dismissal. The effect of that would be that the appellant was to be reinstated after the passing of the decree, though he was to be denied the salary for the period prior thereto. The respondents, however, challenged the said judgment and decree by filing first appeal, which was dismissed by the Additional District Judge. The respondents then filed second appeal and the same was dismissed by this Court. Thereafter, the respondents also filed SLP in the Supreme Court which was initially granted. However, Civil Appeal was dismissed by the Supreme Court ultimately vide order dated 8.2.2006. Thereafter, the appellant was reinstated in service. The appellant demanded salary from the date of decree till his reinstatement. On this request, the respondents passed orders dated 31.3.2006, stating that the appellant was not entitled to any pay and benefit for dismissal period and, therefore, he would not be entitled to the salary for the intervening period. The writ petition filed by the appellant against that order has been dismissed by the learned single Judge vide impugned order dated April 06, 2010 on the ground that the State was bonafidely pursuing its legal remedies as available in law and the appellant remained out of service without performing any duties. It was not a case grant of any arrears of pay for the period in question. Challenging that order, the present intra-court appeal is filed.

No doubt, the decree dated 24.2.1998 passed by the civil court debars the appellant from getting any salary for the period when he was under dismissal. However, on the date when the judgment and decree was passed, the dismissal order had been set aside and it was no longer in existence. There cannot be any quarrel that the respondents had right to avail the legal remedies and challenge the said decree. However, the respondents remained unsuccessful in their attempts and the decree was affirmed up to the highest court, i.e., supreme Court as well. In these circumstances, we are of the opinion that when the judgment and decree passed by the Civil Judge is upheld, at least, from the date of decree the appellant shall be entitled to the salary. If he was not taken in service after passing of the decree because of the reason that the State was availing further legal remedy, the appellant cannot be blamed therefore. We would like to reproduce the operative portion of the judgment dated 24.2.1998 passed by the Civil Judge which reads as under:

As a result of my findings on the above issues, the suit of the plaintiff is decreed with costs for declaration to the effect that the dismissal order passed by A.I.G. Govt. Railway Police dated 24.2.94, order passed by the I.G. in the appeal dated 6.5.94 and the order dated 28.7.94 whereby the revision of the plaintiff was dismissed by the Director General of Police, Govt. Railway Police, Punjab are illegal, null and void and the plaintiff is entitled to be reinstated in service as constable. Further, it is made clear that he is not entitled to any salary or benefits as he had not been in service for the said period, as he was under dismissal.

From the said judgment, it clearly transpires that the appellant was also held not entitled to any salary or benefits as he had not been in service for the said period and the period in question was from the date of dismissal till the passing of the decree.

Learned counsel for the appellant has also relied upon various judgment for the proposition that when the dismissal order is set aside on merits, the effect thereof would be as if there was no dismissal and the delinquent employee shall be entitled to full pay and allowances for the intervening period. The Supreme Court in a recent judgment in the case of Gurpal Singh Vs. High Court of Judicature for Rajasthan, has given the following decision in the similar context:

Again it is a matter of record, that even in the departmental enquiry the charges against the petitioner were not proved and he was exonerated of the same. It was only at that stage that the suspension of the petitioner was revoked. The petitioner had already moved the present writ petition immediately after the order of acquittal was upheld by the Delhi High Court. The enquiry proceedings were completed during the pendency of the writ petition. Undoubtedly, the order of suspension was revoked by the High Court on 26th March, 2008 but without giving any direction as to how the period of suspension was to be treated. It was only subsequently that the matter with regard to regularization of his period of suspension was considered by the Full Court in the meeting held on 29th November, 2008. Even at that stage though the Full Court passed a resolution that period of suspension shall be treated as period spent on duty, but it was to be without payment of any salary except for the subsistence allowance already paid to him. On the basis of the aforesaid resolution, the High Court passed the order dated 24th January, 2009. So even by order dated 24th January, 2009, the petitioner was granted only partial relief. This necessitated the amendment of the writ petition by the petitioner questioning the legality of the aforesaid order. It was only at that stage that this Court by order dated 5th April, 2011 directed the High Court to pass appropriate orders under Rule 54 of the Rules. It appears even at that stage the High Court did not consider it necessary to grant any further relief to the petitioner.

We are of the considered opinion, having regard to the sequence of events narrated above, that it would be unjust to deny the salary to the petitioner with effect from the date the appeal against acquittal was dismissed by the High Court of Delhi. We see no cogent reason as to why it was necessary to continue the suspension of the petitioner during the pendency of the departmental proceedings. There was no distinction between the facts or the evidence relied upon in the criminal trial as well as the department proceedings. This apart, the petitioner had been acquitted of any involvement in the crime of murder. Whilst exercising its jurisdiction under Rule 54, it was necessary for the High Court to pass a detailed and reasoned order as to whether the period of suspension was wholly unjustified. Undoubtedly, the power under Rule 54 is discretionary but such discretion has to be exercised reasonably and by taking into consideration the material relevant to the decision. Upon acquittal of the petitioner from the criminal charges, it was no longer necessary to keep him under suspension during the pendency of the departmental enquiry. In our opinion, the High Court failed to exercise its jurisdiction properly under Rule 54, as directed by this Court in the order dated 5th April, 2011. In our opinion, the suspension of the petitioner ought to have been revoked upon acquittal by the High Court even during the pendency of the departmental enquiry.

This now leads us to the last submission of Mr. Calla that upon exoneration in the departmental proceedings, the petitioner was required to be considered for promotion from the date a person junior to him was promoted.

In view of the authoritative judgment rendered by this Court in the case of Jankiraman (supra), the submissions made by Mr. Calla would have to be accepted. In the aforesaid judgment it was held that:-

We are, therefore, broadly in agreement with the finding of the Tribunal that when an employee is completely exonerated meaning thereby that he is not found blameworthy in the least and is not visited with the penalty even of censure, he has to be given the benefit of the salary of the higher post along with the other benefits from the date on which he would have normally been promoted but for the disciplinary/criminal proceedings.

In this case, it is a matter of record that upon exoneration in the departmental enquiry, the petitioner was reinstated in service. No punishment was inflicted on him at all. However, during the pendency of the criminal trial as also the departmental proceedings, he was not considered for promotion, when the cases of persons junior to him were considered. In our opinion, the High Court erred in directing in the Full Court Resolution dated 29th November, 2008, and the communication dated 24th January, 2009 that the petitioner shall not be entitled for any promotion.

We, therefore, partly allow the writ petition. We reject the submissions of Mr. Calla that the suspension of the petitioner was rendered wholly unjustified upon acquittal by the trial court. We also reject the submissions of Mr. Calla that the suspension of the petitioner was wholly unjustified during the pendency of the appeal before the High Court. We, however, hold that the continued suspension of the petitioner during the pendency of the departmental proceedings was wholly unjustified. The petitioner is, therefore, held entitled to full pay and allowances from 27th September, 2005, i.e. the date of the judgment rendered by the Delhi High Court onwards. We further hold that the petitioner was entitled to be considered for promotion notionally from the date when an officer junior to him was promoted. We, therefore, direct the High Court to consider the case of the petitioner for promotion (if he otherwise satisfies the requirements as per the rules) from the date when a person junior to him was considered and promoted to the next higher post. Let such a decision be taken by the High Court within a period of three months from the date of receipt of this order. We further direct that the petitioner would be entitled to all consequential benefits, such as salary and other allowances by treating him on duty with effect from the date the appeal against acquittal was dismissed by the Delhi High Court and after fixing his last pay drawn correctly. The consequential benefits shall be paid to him with 6% interest from the date of the dismissal of the appeal by the High Court on 27th September, 2005. The enhanced retiral benefits shall be released to him within three months of the receipt of a copy of this order.

Following the aforesaid judgment, we allow this appeal and set aside the order of the learned single Judge as well as order dated 31.3.2006 passed by the respondents denying the benefit of pay and allowances with effect from 24.3.1998, i.e., date of decree till the appellant was reinstated.