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Judgment
Nagesh Bheemapaka, J
Petitioners-M. Dayakar Reddy and P. Buchaiah, while working in Munpally Police Station,havetaken BegariNarsimhulu and Jayaram Reddy to the Police Station on 20.06.1997 on the allegation of theft of wooden frames of Siva Sivani International School. Petitioners let off Jayaram Reddy, however, confined BegariNarsimhulu in the Police Station, beat him with rubbers, poured hot water, and tortured him. Unable to bear the torture, BegariNarsimhulupoured keroseneupon himself and attempted suicide by setting himself ablaze. He was taken to Gandhi Hospital hospital where he succumbed to burns on 07.07.1997 after giving Dying Declaration to the learned Magistrate.
Upon the orders of Addl. DGP, CID, A.P. Hyderabad, vide Memo dated 03.02.1998, the Deputy Superintendent of Police, CID, Nizamabad Zone, took up investigation and filed charge sheet before the Additional Judicial Magistrate of First Class, Sangareddy, which was registered as PRC No.17/2000, and taken cognizance for the offences punishable under Sections 342, 347 and 306 IPC and Section 3(1)(x) of the SC/ST (POA) Act, 1989. Upon committing the case to the Court of Sessions, the same was made over to the Special Judge for trial of offences under SC/ST (POA) Act, 31989, Medak, Sangareddy, (for short, the trial Court). The trial Court, after appreciation of evidence of PWs.1 to 23 and documents Exs.P1 to P23 filed on behalf of prosecution, and Ex.D1 on behalf of accused, convicted the petitioners/accused for the offence punishable under Section 306 IPC by Judgment dated 24.01.2005, while acquitting them of the offences under Sections 342 and 347 IPC and Section 3(1)(x) of the SC/ST (POA) Act, 1989.
Consequent to the judgment of the trial Court, dated 24.01.2005, the petitioners were dismissed from service w.e.f. 24.01.2005.
The petitioners filed an Appeal, i.e., Criminal Appeal No.72 of 2005 challenging the judgment of the trial Court. This Court vide Judgment dated 20.03.2012 allowed the Appeal acquitting the petitioners of the offence under Section 306 of IPC.
Consequent to the acquittal of the petitioners, the petitioners were reinstated into service by setting aside of dismissal orders, and directing Departmental enquiry on the misconduct that had the effect of imposing penalty of dismissal from service under Andhra Pradesh Civil Services (Classification, Control & Appeal) Rules, 1991, and directing to deem the period between the date of judgment of trial Court convicting the petitioners and the date of reinstatement consequent to acquittal by the High Court, as deemed suspension.
In the Departmental Enquiry, the Enquiry Officer recorded the statements of prosecution witnesses, and held that the allegations/charge against both the petitioners as “Not Proved”. The Department has written to the Government vide letter dated 09.01.2015 seeking instructions in the matter. The Government vide Memo dated 26.08.2015 informed that the Government neither suspended nor reinstated the petitioners and hence the competent authority who issued suspension/reinstatement orders have to take a decision on the regularization of deemed suspension of the petitioners under Fundamental Rule 54-B.
Thereafter, respondent No.1-Superintendent of Police, Medak, after going through entire OE records i.e., Preliminary Enquiry report, OE Minutes, Government Memos and other records, and keeping in view the judgments of Hon’ble Supreme Court passed Order dated 20.05.2016 holding that the period from 24.01.2005 to 10.10.2012 in respect of petitioner-M.Buchaiah, and the period from 24.01.2005 to 03.07.2013 in respect of petitioner-M.Dayakar Reddy be treated as Not on Duty.
The petitioners filed an Appeal before the respondent No.4-Deputy Inspector General. The respondent No.4 disposed of the Appeal by upholding the decision of Superintendent of Police, Medak, Sangareddy, in treating the period from 24.01.2005 to 10.10.2012 in respect of petitioner-P.Buchaiah, and the period from 24.01.2005 to 03.07.2013 in respect of petitioner-M.Dayakar Reddy be treated as Not on Duty.Thereafter, petitioner-P. Buchaiah filed a Mercy Petition before the respondent No.5-Director General of Police, and the respondent No.5, vide Memo dated 18.06.2018 informed the respondent No.3-Superintendent of Police that the petitioner has exhausted all the channels of remedies provided in APCS (CC&A) Rules, 1991, and according to Government Memo dated 10.07.2000, there is no provision for mercy petition under the Rules.
Thereafter, the respondent No.6 vide Memo dated 17.09.2018 informed that the representation of the petitioners to treat the suspension and out of employment period as “on duty” has been examined and lodged at Government level. Petitioners challenge the Order dated 20.05.2016 passed by respondent No.1-Superintendent of Police, Medak, in treating the period from 24.01.2005 to 10.10.2012 in respect of petitioner-P.Buchaiah, and the period from 24.01.2005 to 03.07.2013 in respect of petitioner-M.Dayakar Reddy as Not on Duty; and the inaction of respondent No.1-Government in passing final orders on their representation to treat their suspension periods as ‘On duty’ for all purposes with all consequential benefits.
Heard Mr. P.V. Krishnanaiah, learned counsel for the petitioners, and learned Government Pleader for Services (Home). Perused the record.
Learned counsel for the petitioners would essentially contend that the petitioners were earlier convicted for the offence under Section 306 IPC, however, they were ultimately acquitted by this Court in the Criminal Appeal proceedings, and therefore, the petitioners having been acquitted of all the charges are entitled to reinstatement with all consequential benefits, and therefore denying the benefits by treating the period between dismissal from service and reinstatement as “Not on Duty”, is illegal and arbitrary.
Learned Government Pleader, on the contrary, would contend that the criminal proceedings before the Criminal Court, and the Departmental proceedings are two entirely different proceedings with different focus and application of law. Learned Government Pleader would contend that the alleged criminal offence under Indian Penal Code, and the alleged misconduct under Departmental Rules cannot be looked at on the same footing. He contends that acquittal in either of the proceedings would not automatically neither impact nor nullify action in the other proceedings.
Learned Government Pleader would rely on the judgment of the Hon’ble Supreme Court in Krishnakant Raghunath Bibhavnekar v. State Of Maharashtra1997 (3) SCC 636 and contends that acquittal does not automatically entitle one to get consequential benefits. He would further rely on Reserve Bank of India vs Bhopal Singh Panchal1994 (1) SCC 541 and contends that the employee does not automatically become entitled to full pay and allowances for suspension period. He would further contend that the Hon’ ble Supreme Court in Bhopal Singh Panchal (2 supra) observed that during the suspension period, the employee renders no work, and the reason the Bank has kept the employee away from work was due to the employee’s own involvement in the misconduct and therefore the employee is not entitled to backwages/benefits even though he is subsequently reinstated. Learned Government Pleader would further rely on judgment of the Hon’ble Supreme Court inRanchhodjiChaturji Thakore v. The Superintendent Engineer, Gujarat Electricity Board, Himmatnagar (Gujarat) (1996) 11 SCC 603 and contends that it is the conduct of petitioners themselves that has rendered the employer to keep them away from duty by dismissing them upon convicting by the trial Court. Learned Government Pleader would therefore contend that there is no illegality in treating the period of out of employment of the petitioners as “Not on Duty” and there is no impropriety in the impugned order passed by respondent authorities.
It is not in dispute that the petitioners have confined the deceased-BegariNarasimhulu in the Police station on an allegation of theft of wooden frames of a School, and thereafter the deceased committed suicide by setting himself ablaze. The Department initiated action against the petitioners, and the trial Court convicted them, and this Court acquitted them in the Criminal Appeal filed by the petitioners. In the intervening period of conviction by trial Court and acquittal by this Court, the respondent-Department dismissed the petitioners from service, however, upon acquittal by this Court, they were reinstated and the period between dismissal and reinstatement was treated as “Not on Duty”.
In Raj Narain vs Union Of India2019 (5) SCC 809, this Court while referring to the case in RanchhodjiChaturji Thakore (3 supra) held as follows:
“The claim of the Petitioner therein was that he was entitled to full wages on his acquittal by the Criminal Court. This Court rejected the said submission by holding that the question of payment of back wages would arise only in case of termination of service, pursuant to findings recorded in a departmental enquiry. In the event of the dismissal order being set aside by the Court, the delinquent employee would be entitled to claim back wages as he was unlawfully kept away from duty by the employer. This Court was of the opinion that an employee against whom criminal proceedings are initiated would stand on a different footing in comparison to an employee facing a departmental inquiry. The employee involved in a crime has disabled himself from rendering his services on account of his incarceration in jail. Subsequent acquittal by an Appellate Court would not entitle him to claim back wages.”
The decision of RanchhodjiChaturji Thakore (supra) was followed by this Court in Union of India and Others v. Jaipal Singh2004 (1) SCC 121 to refuse back wages to an employee who was initially convicted for an offence under Section 302 read with Section 34 IPC and later acquitted by the High Court in a criminal appeal. While refusing to grant relief to the Petitioner therein, this Court held that subsequent acquittal would not entitle an employee to seek back wages. However, this Court was of the opinion that if the prosecution is launched at the behest of the department and the employee is acquitted, different considerations may arise. The learned counsel for the Appellant endeavored to distinguish the prosecution launched by the police for involvement of an employee in a criminal case and the criminal proceedings initiated at the behest of the employer. The observation made in the judgment in Union of India and Others v. Jaipal Singh (supra) has to be understood in a manner in which the department would become liable for back wages in the event of a finding that the initiation of the criminal proceedings was mala fide or with vexatious intent. In all other cases, wedo not see any difference between initiation of the criminal proceedings by the department vis-a-vis a criminal case lodged by the police. For example, if an employee is involved in embezzlement of funds or is found indulging in demand and acceptance of illegal gratification, the employer cannot be mulcted with full back wages on the acquittal of the person by a criminal Court, unless it is found that the prosecution is malicious.
It may be noted that criminal proceedings and disciplinary proceedings are two entirely different proceedings, with different yardsticks of proof required to establish the charges, albeit they may haveidentical basis of charges against a delinquent official. The Hon’ ble Supreme Court in M/s StanzenToyotetsu India P. Ltd vs. Girish.V AIR 2014 Supreme Court 989 while holding that it is well settled that there is no legal bar to the conduct of the disciplinary proceedings and a criminal trial simultaneously, observed as follows:
“In Depot Manager, Andhra Pradesh State Road Transport Corporation v. Mohd. Yousuf Miyan [(1997) 2 SCC 699], this Court declared that the purpose underlying departmental proceedings is distinctly different from the purpose behind prosecution of offenders for commission of offences by them. While criminal prosecution for an offence is launched for violation of a duty that the offender owes to the society, departmental enquiry is aimed at maintaining discipline and efficiency in service. The difference in the standard of proof and the application of the rules of evidence to one and inapplicability to the other was also explained and highlighted only to explain that conceptually the two operate in different spheres and are intended to serve distinctly different purposes.”
In RanchhodjiChaturji Thakore (3 supra), the Hon’ble Supreme Court while deciding the aspect of backwagesupon reinstatement consequent to acquittal in criminal proceedings, observed as follows:
“The reinstatement of the petitioner into the service has already been ordered by the High Court. The only question is: whether he is entitled to back wages? It was his conduct of involving himself in the crime that was taken into account for his not being in service of the respondent. Consequent upon his acquittal, he is entitled to reinstatement for the reason that his service was terminated on the basic of the conviction by operation of proviso to the statutory rules applicable the situation. The question of back wages would be considered only if the respondents have taken action by way of disciplinary proceeding and the action was found to be unsustainable in law and he was unlawfully prevented from discharging the duties. In that context, his conduct becomes relevant, Each case requires to be considered in his own backdrops. In this case, since the petitioner had involved himself in a crime, though he was later acquitted, he had disabled himself from rendering the service on account of conviction and incarceration in jail. Under these circumstances, the petitioner is not entitled to payment of back wages. The learned single judge and the Division Bench have not committed any error of law warranting interference.”
In the instant case, admittedly, there is no finding by the trial Court or this Court that the criminal proceedings were initiated against the petitioners with malicious intent though they have nothing to do with the charges at all. Further, the respondent-Department has not dismissed the petitioners until after they were convicted by the trial Court after due trial. Further, in the Criminal Appeal before this Court, there is no observation by this Court that the Department had resorted to vexatious litigation or malicious prosecution against the petitioners. When the petitioners are acquitted of the charges by a Court of competent jurisdiction, they may be entitled to reinstatement upon making a representation or at the initiative of the employer, however, the very reinstatement upon acquittal alone would not automatically make the petitioners entitled to backwages/arrears/notional increments or attendant/consequential service benefits, in view of the settled law that disciplinary proceedings and criminal proceedings are two independent proceedings with different focus and object for decision/determination, they stand on a different pedestal.
Further, in the light of the law laid down by the Hon’ ble Supreme Court in RanchhodjiChaturji Thakore (3 supra), and in Raj Narain (4 supra) while referring to Jaipal Singh (supra),it was the conduct of the petitioners involving themselves in the crime that was taken into account for not being in the service of the respondent-Department and the petitioners.As observed by the Hon’ble Supreme Court in RanchhodjiChaturji Thakore (3 supra), the question of backwages would be considered only if the respondents have taken action by way of disciplinary proceeding and the action was found to be unsustainable in law, whereby they were unlawfully prevented from discharging their duties.Further, there is no finding of vexatious intent or malicious prosecution by the respondent-Department in prosecuting the criminal case against the petitioners, nor there is any order of the Court, while acquitting the petitioners, specifically directing that the petitioners would be entitled to any benefits, monetary or otherwise, for the period they were out of employment on account of dismissal by the respondent-Department upon being convicted by the trial Court.
In the facts and circumstances of the present case, this Court is of the view that the respondent-Departmentcannot be mulcted with payment of backwages or notional increments or any attendant/consequential benefits whatsoever, for the period the petitioners were out of service,merely for the reason they were reinstated upon acquittal by this Court. In that view of the matter, this Court does not see any illegality or impropriety in the impugned Order dated 20.05.2016, and subsequent orders passed by the respondent-Department, treating the period from 24.01.2005 to 10.10.2012 in respect of petitioner-P.Buchaiah, and the period from 24.01.2005 to 03.07.2013 in respect of petitioner-M.Dayakar Reddy as “Not on Duty”.
Accordingly, the writ petitions are dismissed. No costs. Miscellaneous petitions if any, pending, shall stand closed.