Guman Singh vs General Manager/Network-Ii/Local Head Office And Others

The petitioner has filed the present petition challenging the order dated 12.09.2017 passed by the respondents.

The petitioner was a Scale-III Officer in the State Bank of India and at the relevant time, he was posted as Field Officer Kareli Branch. One M/s

Ashish Computer Point was maintaining a Cash Credit Account at the said Branch. Shri Ashish Kumar Nema, the proprietor of the firm lodged a

complaint with CBI on 14.09.2008 alleging that the petitioner has demanded illegal gratification of Rs.5,000/- for allowing payments from his CC limit

account. The petitioner was trapped by CBI on 15.09.2008 and recovered tainted Rs.5,000/- from him. The petitioner was arrested on 15.09.2008 and

was later on released on bail on 16.09.2008. On account of his involvement in criminal case and his arrest by the police, the petitioner was placed

under suspension vide order, dated 27.09.2008. Thereafter, he was served with the charge-sheet dated 19.08.2009. After departmental enquiry, a

punishment of reduction to a lower stage in time scale of pay by two stages for a period of two years, with further direction that he will not earn

increments to pay during the period of such reduction and on expiry of such period, the reduction will have the effect of postponing the future

increments of pay. The punishment was imposed on the petitioner vide order dated 20.05.2010. This order was not challenged by the petitioner and

has attained the finality.

The CBI after investigation filed a challan to the Court of Special Judge (CBI), Jabalpur and the petitioner was tried in Special Case No. 13/2009.

The trial Court vide judgement dated 27.01.2014 convicted the petitioner for offences punishable under Section 7 and Section 13(1)(d) read with

Section 13(2) of Prevention of Corruption Act, 1988 and sentenced him to R.I for two years and fine of Rs.5,000/- and R.I of three years and fine of

Rs.10,000/- respectively. As a result of his conviction, the petitioner was discharges from service with effect from 21. 10.2014, in terms of Rule 68(7)

(i) of SBI Officer's Service Rule, 1992. The petitioner has filed an appeal against the order passed by the trial Court and he has been acquitted from

criminal charges vide order dated 20. 04.2017. Thereafter, the petitioner has filed a representation dated 18.08.2017, requested for his reinstatement in

service with full benefits. After obtaining the approval from Corporate Center, the petitioner has been directed to reinstate in service vide order dated

12.09.2017 on certain conditions i.e. the petitioner shall not be entitled to back wages and period from 22.10.2014 till the date of his actual joining shall

be treated as break in service and the same will not be counted for any purpose i.e. Seniority, Pension, Gratuity etc. and he will not be entitled to any

increments or consequential benefits for the said period. Being aggrieved by the Condition No. 2, the petitioner has filed the present petition.

The petitioner appears in persons and argues that the impugned order by which he was denied the back wages and continuity in service is illegal

and arbitrary. He submits that the principle of 'No work No pay' would not be applicable in his case and he is entitled for getting the back wages for

the period under which he was remained suspended. He further submits that the order of conviction has been set aside by this Court and he has been

Honourably acquitted by the Court in appeal and in such circumstances, he is entitled to get the back wages for the entire period.

The respondent No. 1 has filed reply and in the reply, the respondent has stated that in spite of the order of reinstatement issued to the petitioner,

the petitioner has not joined his duty as of now. He issued a letter dated 20. 09.2017 and he conveyed his disagreement with Condition Nos. (a) & (b)

of the reinstatement. The respondent has further stated that even if the conditions are not acceptable to him, the petitioner should have joined the

service. However, he failed to do so and filed the instant writ petition. The issue pertaining to the Condition Nos. (a) & (b) of the reinstatement order

would be decided by this Court. However, the petitioner has again written another letter dated 16.12.2017 to the respondent Bank instead of joining

the Bank, to issue reinstatement-cum-posting order to him. The respondent Bank again advised to the petitioner vide letter dated 28.12.2017 to report

for duty before the Deputy General Manager (B&O), Administrative Office, Jabalpur and issues related to back wages is also pending before this

Court. The petitioner was involved in a criminal case because of his own conduct. The respondent has further relied on Section 10(1)(b) of the

Banking Regulation Act, 1949. By virtue of these provisions, the respondent has stated that, the petitioner automatically incurs disqualification to

continue in Bank's employment. After acquittal from this Court, the petitioner has been given offer of reinstatement, however, he has not joined the

service under the garb of certain conditions lawfully imposed by the Competent Authority. Subsequently, acquittal though obliterates his conviction

does not operate retrospectively to wipe out the legal consequences of the conviction under the Act. In view of the aforesaid, learned counsel for the

respondent Bank submits that the decision of the Bank is legal and valid and warrants no interference of this Court. He further relied on the judgement

passed by Apex Court in the case of Union of India and others Vs. Jaipal Singh, AIR 2004 SC 1005, the judgement passed by the Apex Court in the

case of Gurpreet Singh Vs. State of Punjab and others, (2002) 9 SCC 492 and the judgement passed by the Apex Court in the case of State Bank of

India and another Vs. Mohammed Abdul Rahim, (2013) 11 SCC 67.

Heard learned counsel for the parties and perused the record.

In the present case, the petitioner was working as Scale-III Officer in the State Bank of India. While he was posted at Kareli Branch, a complaint

was lodged against him by one Shri Ashish Kumar Nema stating that he has taken illegal gratification of Rs.5,000/- from him. A complaint was made

to the CBI and trapped conducted by the CBI on 15.09.2008 and an amount of Rs.5,000/- was recovered from him. On account of his involvement in

criminal case, he was arrested by the police and was placed under suspension vide order dated 27.09.2008. He was thereafter served with a charge

sheet on 19.08.2009. Thereafter, a punishment was imposed on him regarding the reduction to a lower stage in time scale of pay by two stages for a

period of two years, with further direction that he will not entitled to get increments during this period vide order dated 20.05.2010. Against the said

order, the petitioner has not filed any appeal, therefore, the same has attained the finality. After investigation, the CBI filed challan in the Court of

Special Judge (CBI), Jabalpur. The trial Court vide judgement dated 27.01.2014 convicted the petitioner and sentenced him R.I for two years and find

of Rs.5,000/- and R.I for three years and fine of Rs.10,000/-respectively. As a result of his conviction, the petitioner was discharged from service with

effect from 21.10.2014. Against the order of conviction, the petitioner has preferred an appeal before this Court. This Court vide order dated

20.04.2017 has allowed the appeal preferred by the petitioner and acquitted the petitioner from the charges. After his acquittal, the petitioner has

submitted a representation dated 18.08.2017 requested for his reinstatement in service with full back wages. After obtaining the approval from

Corporate Center, the petitioner was directed to reinstate in service with following terms:-

“6. The matter has been examined and I decide to reinstate you in the Bank's service with the following terms and conditions.

(a) You will be reinstated in the Bank's service without back wages.

(b) The period spent from 22.10.2014 till your actual joining to the Bank's service will be treated as break in service and same will not be counted for

any purpose i.e. seniority, pension, gratuity etc. You will not be entitled for any increment/s or consequential benefits for the said period.â€​

The petitioner, therefore, refused to join the duties due to Clause (b) of the said order and has filed the present petition after submitting the

representation to the respondents.

In the present case, the petitioner was convicted by the trial Court for committing an offence under the Prevention of Corruption Act. He was,

thereafter, acquitted by this Court in appeal. As the petitioner was convicted by the trial Court, therefore, he was discharged from the services. After

acquittal, the petitioner has submitted representation to the respondents requesting for his reinstatement along with all benefits, however, the

respondents have passed the impugned order in which denied the back wages as well as other benefits to the petitioner and it was further stated that

period of suspension shall be treated as break in service.

The Section 10 of the Bank Regulation Act 1949 provides for the prohibition of employment of managing agents and restrictions on certain forms

of employment. The Section (1) Clause (b) of the Act reads as under:-

“(1)(b) shall employ or continue the employment of any person-

(i) who is, or at any time has been, adjudicated insolvent, or has suspended payment or has compounded with his creditors, or who is, or has been,

convicted by a criminal court of an offence involving moral turpitude.â€​

Thus, as per this Section, if any employee of the Bank is involved in the criminal activity, then he acquires disqualification to continue in Bank's

employment.

So far as, denial of the back wages to the petitioner is concerned, the Apex Court in the case of Union of India and others (supra) in para 3 has

held as under:-

“3...........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 reason 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.â€​

Further, the Apex Court in the case of State Bank of India and another (supra) in para 9 and 10 has held as under:-

“9. In the present case, the respondent was acquitted by the appellate court. There can be no manner of doubt that the said acquittal would relate

back and the initial order of conviction would stand obliterated. On that basis, there can be no manner of doubt that the substratum of the cause that

had led to the respondent's dismissal/discharge in the present case had ceased to exist. The same would entitle him to be reinstated in service, an act

that has been duly performed by the appellant Bank.

The issue relating to entitlement to back wages, however, stands on a somewhat different footing. While in Ranchhodji Chaturji Thakore, Jaipal

Singh and Baldev Singh, the basis of refusal of back wages by this Court would appear to be the inability of the employer to avail of the service of the

employee due to his incarceration in jail, in Banshi Dhar the refusal of back wages by this Court was in a situation largely similar to the case before us,

namely, where the employee was all along on bail and was thus available for work.â€​

Thus, in light of the aforesaid judgement, although the petitioner was acquitted by the trial Court he is entitled only for reinstatement, but not the back

wages.

So far as, continuity of services of the petitioner is concerned, the Supreme Court in the case of Gurpreet Singh (supra) in para 3 has held as

under:-

“3. Having heard the learned counsel for the parties and on examining the materials on record, we fail to understand how the continuity of service

could be denied once the plaintiff is directed to be reinstated in service on setting aside the order of termination. It is not a case of fresh appointment,

but it is a case of reinstatement. That being the position, direction of the High Court that the plaintiff will not get continuity of service cannot be

sustained and we set aside that part of the impugned order. So far as, the arrears of salary is concerned, we see no infirmity with the direction which

was given by the lower appellate court taking into account the facts and circumstances including the fact that the suit was filed after a considerable

length of time. That part of the decree denying the arrears of salary stands affirmed and this appeal stands allowed in part to the extent indicated

above.â€​

As per the said judgement, the petitioner is entitled for continuity in service because his order of discharge is already being set aside and he is directed

to be reinstated in service.

Thus, in light of the aforesaid, this petition is partly allowed. The Clause (b) of the impugned order dated 12. 09.2017 is hereby set aside and the

respondents are directed to treat the period from 22.10.2014 till his joining to the Bank as continuity in service and he will be entitled to get the benefit

of such period for the purpose of Seniority, Pension and Gratuity. However, he will not entitled to get any increment or consequential benefits for the

said period. However, Clause (a) of the order dated 12. 09.2017 so far as reinstatement is concerned, he will not to get any back wages.

No order as to costs.