Devchand Ram vs State Of Chhattisgarh And Ors.

The challenge in the present writ petition is to the order dated 31.10.2009 (Annexure P/1) which has been issued pursuant to an earlier direction

given by this court in WPS No.844 of 2009 decided on 31.08.2009.

The petitioner was working as a Manager under the respondent No.7 which is a primary society under the respondents No.3&4. The initial order of

appointment of the petitioner was issued on 19.12.1996. He continued to work on the said post till 28.05.2006. Thereafter, he was absent from duty for

pretty long time. In between the petitioner was arrested in a criminal case for the offence punishable under Sections 147,148,307 in alternative

307/149, 186 and 353 IPC and Sections 25 and 27 of Arms Act. In addition, Sections 3,5 and 7 of Explosive Substance Act. He remained in custody

till 21.08.2008 i.e. the date on which he stood acquitted in the criminal case. Since the petitioner was absent from duty from 28.05.2006 to 21.08.2008,

the respondent No.7 meanwhile passed a resolution on 02.06.2006 removing the petitioner from service and in his place the respondent No.6 had been

ordered to be appointed.

The petitioner subsequent to his acquittal from the criminal case filed a writ petition before this court vide WPS No.844 of 2009 which stood

decided on 31.08.2009 directing the petitioner to prefer a representation to the authorities concerned, who in turn, was directed to decide the same.

Pursuant to the order dated 31.08.2009, the petitioner made a detailed representation. The said representation stood decided vide impugned order

dated 31.10.2009 which is under challenge in the present writ petition.

The contention of the petitioner is that except for the resolution which has been passed against the petitioner deciding to remove the petitioner from

service, there is no formal order of removal from service or any order of termination issued by any of the authorities in the department either under the

respondents No.3&4 or by the respondent No.7&8. He further submits that the petitioner indisputably was a permanent employee. The services of the

petitioner could not have been terminated without conducting a detail enquiry whatsoever. It was also the contention of the petitioner that even

otherwise since the petitioner was wrongly implicated in the criminal case and was put under custody for a period of more than two years, he was

otherwise not in a position to discharge his duties under the respondents. That, the circumstances were beyond his control from making himself

available for the work, nor could he have participated in any of the enquiry proceedings, if any, conducted by the respondents.

It was also the contention of the petitioner that after acquittal of the petitioner from the criminal charge and that there being no enquiry conducted

by the respondents, as a natural consequence the respondents should have permitted the petitioner to resume his duties and the authorities ought to

have passed a fresh order as to how the intervening period i.e. the period of absence from duty had to be treated. In the absence of any such

situations, the alleged act on the part of the respondents in removing the petitioner from service is bad in law. The same is also not sustainable and

deserve to be set aside/quashed.

The counsel for the respondents however opposing the petition submits that it is a case where the petitioner admittedly was absent from duty

unauthorizedly for the period of two years and three months and in the intervening period since the place where the petitioner was discharging his duty

was suffering on account of his absence, the authorities concerned had no other option but to replace the petitioner with another Manager and that is

the proposal what has been taken by way of resolution dated 02.06.2006. He further submits that if we peruse the conduct of the petitioner, first of all

he was absent for pretty long period, secondly he was involved in a criminal case with serious charge and all these facts must have come in the mind

of the department which led to passing of the resolution. Thus, prayed for rejection of the petition holding it to be devoid of merit.

Having heard the counsel for the parties and on perusal of records, admittedly the petitioner was appointed as Manager under the respondent No.7

on 19.12.1996. He continued to work in the said post till 28.05.2006 when abruptly he had been arrested under judicial detention. He was prosecuted

in criminal case for the offence punishable under Sections 147,148,307 in alternative 307/149, 186 and 353 IPC and Sections 25 and 27 of Arms Act.

In addition, Sections 3,5 and 7 of Explosive Substance Act. The criminal case ultimately resulted in acquittal on 28.08.2008. Thereafter, for all

practical purposes, there were no impediment against the present petitioner which could have prevented the authorities from providing him

reinstatement in service.

It is settled position of law that once when there is an order of acquittal in a criminal case and the services of the petitioner had been removed only

on account of his being involved in criminal case without any departmental enquiry or even preliminary investigation whatsoever, the natural

consequence would be that the petitioner has to be granted reinstatement. In the instant case there does not appear to have been any decision taken

by the respondents after the petitioner reported for duty subsequent to his acquittal from the criminal case. Moreover, the petitioner on an earlier round

had filed a writ petition which was disposed of by this court directing the authorities to decide the representation of the petitioner so as to ensure that

his grievance stands redressed. Yet, the authorities did not try to redress the grievance of the petitioner and on the contrary has rejected the

representation vide impugned order leading to second round of litigation i.e. the present writ petition.

Given the facts and circumstances of the case, particularly taking into consideration the fact that the petitioner was a permanent employee of the

respondents; the petitioner was falsely implicated in a criminal case which ultimately led to his acquittal; in between the petitioner was in judicial

detention for a period of more than two years and therefore, the petitioner was helpless to either intimate the authorities or to appear for duties with

the respondents.

For all the aforesaid reasons, the alleged action on the part of respondents in removing the petitioner from service is not sustainable. The same

deserves to be and is accordingly held to be illegal and bad in law.

As a consequence, it is directed that the respondents shall forthwith take the petitioner back into service. Since the petitioner admittedly was

involved in criminal case and for which he had also undergone criminal trial, the petitioner would not be entitled for back wages for the period of his

absence from duty i.e. 28.05.2006 to 21.08.2008 i.e. the date of acquittal.

However, subsequent to that when the petitioner had reported for duty, the service of the petitioner ought to have been reinstated. The

respondents having not done so, the petitioner cannot be put to loss for the intervening period. Therefore, the petitioner shall be entitled for the

consequential benefits of 50 percent of back wages from the period 21.08.2008 till the petitioner is reinstated in service. The petitioner would also be

entitled for all other consequential benefits like continuity in service and seniority etc.

The writ petition accordingly stands allowed and disposed of.