Hinge Maninder vs Ap Grameena Vikas Bank, Rep.By Its Chairman

This Writ Petition is filed seeking a Writ of Mandamus declaring the action of the 2nd and 3rd respondents in so far as denying back wages and other attendant benefits to the petitioner vide impugned proceedings issued in Lr.No.APGVB/V & DP/271/1-12, dated 07.07.2011, and Cr.No.APGVB/PER/1480-2011-12, dated 23.07.2011, respectively consequent to his acquittal by this Court in Crl.R.C.No.84 of 2006, as being illegal, arbitrary and in violation of Article 14 of the Constitution of India and consequently hold that the petitioner is entitled for payment of back wages from the date of dismissal from service i.e., 30.01.2004 to 23.07.2011 i.e., the date of reinstatement into service duly regularizing the suspension period as on duty with all consequential benefits such as seniority, promotion, pay fixation and arrears.

Brief facts of the case are that while working as Office Messenger in the 1st respondent bank, the petitioner was placed under suspension with effect from 16.02.2009 vide proceedings dated 01.03.1999 on the ground that he was involved in a criminal case. Subsequently, the petitioner was dismissed from service vide proceedings dated 12.05.2005 with effect from 30.01.2004 i.e., date of conviction in C.C.No.276 of 2001 on the file of the Special Judicial Magistrate of First Class for PCR Cases, Warangal. Aggrieved by the order of dismissal, the petitioner preferred an appeal to the Chairman and the same was rejected on 03.08.2005. The petitioner also preferred an appeal against the order of conviction vide Crl.A.No.14 of 2004 before the V-Additional Sessions Judge, Warangal, and the same was dismissed on 10.01.2005. Thereafter, the petitioner filed Crl.R.C.No.84 of 2006 and that this Court, by order dated 24.02.2011, allowed the said revision and set aside the conviction and sentence imposed against him by the trial Court and the appellate Court. It is further stated that in view of acquittal in the criminal case, the petitioner was reinstated into service vide proceedings dated 07.07.2011 issued by the 2nd respondent, wherein it was mentioned that he would not be entitled for any back wages and attendant benefits for the period during which he was not in employment of the respondent bank. It is further stated that no reasons have been assigned in the impugned order as to why he was not entitled for back wages and as per Fundamental Rule 54, an employee whose acquittal is on merits is entitled to back wages and that the period of suspension has to be regularized as on duty for all purposes.

A detailed counter-affidavit has been filed by the respondents stating that when an employee is suspended on arrest by police is within the purview of the competent authority and, therefore, it ordered reinstatement without back wages and that there is neither any illegality nor arbitrariness as alleged by the petitioner. It is further contended that the competent authority under relevant provisions of the Staff Service Regulations had initiated proceedings and suspended the employee on his arrest and subsequently dismissed from service on 24.01.2004 on his conviction by the trial Court. The petitioner was out of employment for more than six years due to his own acts of involvement in criminal charges and the trial Court had convicted him for the alleged charges, which was confirmed by the appellate Court, and thereafter this Court had acquitted him in a revision filed by him. It is further contended that the orders of the competent authority dated 07.07.2011 were received by the petitioner on 11.07.2011 and he had accepted the offer of reinstatement duly knowing that he is not entitled for back wages for which period he had been not in employment of the bank and, therefore, he cannot agitate that the conditions of reinstatement were arbitrary. Under Regulation 29 of the Kaktiya Grameena Bank (Officers & Employees) Staff Service Regulations, 1983 & 2001, the competent authority can decide upon the period not in employment of the bank and the same cannot be questioned by the petitioner when there is no attributable delay caused by the competent authority. Since the petitioner himself got involved in criminal case on account of his conduct and he was out of service, he is not eligible to claim any back wages. Therefore, it is prayed to dismiss the writ petition without granting any of the reliefs sought by the petitioner.

Heard learned Counsel for the petitioner and the learned Standing Counsel for the respondents and perused the entire material available on record.

The short point to be decided in this case is whether on being acquitted from a criminal charge, the petitioner can get his back wages and attendant benefits for the period during which he was not in employment of the respondent bank.

A perusal of the material on record would disclose that the petitioner was placed under suspension on the ground that he was involved in a criminal case. After recording conviction against the petitioner in C.C.No.276 of 2001 on the file of the Judicial Magistrate of First Class for PCR Cases, Warangal, the petitioner was dismissed from service with effect from 30.01.2004. It is also not in dispute that the petitioner had filed an appeal against the order of dismissal, which was rejected by the Chairman on 03.08.2005. The record further discloses that against his conviction and sentence in C.C.No.276 of 2001, the petitioner filed Crl.A.No.14 of 2004 before the V-Additional Sessions Judge, Warangal, which was dismissed on 10.01.2005. Aggrieved by the same, the petitioner preferred Crl.R.C.No.84 of 2006 before this Court. By an order, dated 24.02.2011, this Court allowed the said revision by setting aside the conviction and sentence imposed by the trial Court, which was affirmed by the appellate Court. While acquitting the petitioner, this Court has given a categorical finding that there is absolutely no evidence on record to sustain the conviction of the petitioner. It is also not in dispute that in view of acquittal, the petitioner was reinstated into service vide proceedings dated 07.07.2011, but in the said reinstatement order, it was mentioned that the petitioner is not entitled for any back wages and attendant benefits for the period during which he was not in employment.

In Shobha Ram Raturi v. Haryana Vidyut Prasaran Nigam Limited (2016) 16 SCC 663 the Apex Court while dealing with the payment of back wages consequent to the acquittal, held as under:-

“3. Having given our thoughtful consideration to the controversy, we are satisfied, that after the impugned order of retirement, dated 31.12.2002 was set aside, the appellant was entitled to all consequential benefits. The fault lies with the respondents in not having utilised the services of the appellant for the period from 01.01.2003 to 31.12.2005. Had the appellant been allowed to continue in service, he would have readily discharged his duties. Having restrained him from rendering his services with effect from 01.01.2003 to 31.12.2005, the respondent cannot be allowed to press the self-serving plea of denying him wages for the period in question, on the plea of the principle of “no work no pay”.

In the instant case also, the petitioner was an accused of an act of fraud and forgery during the course of his employment. Finally, he was acquitted of the said charges and this Court has exonerated the petitioner of all the allegations levelled against him having not been established and his conviction was set aside.

Learned Standing Counsel appearing for the respondents would submit that since the petitioner was absented from duty as he was arrested on account of his involvement in a criminal case, the respondent bank is in no way responsible for keeping him away from his duty and, therefore, the petitioner is not entitled for back wages. In support of her contention, she relied upon the judgment of the Apex Court in Reserve Bank of India v. Bhopal Singh Panchal (1994) 1 SCC 541. In the said judgment, the Apex Court observed that Regulation 46 of the Reserve Bank of India (Staff) Regulations, 1948 is a self contained provision for dealing with an employee's absence from duty when he is arrested either for debt or on a criminal charge or when he is detained in pursuance of any process of law. Sub-regulation (1) of that Regulation was analyzed by the Apex Court in that case which suggests that when an employee is absent from duty on account of arrest for debt or criminal charge or is detained in pursuance of any process of law, he may be considered as being under suspension from the date of his arrest or his detention till such date as the competent authority may direct in that behalf. The sub Regulation further provides that when the competent authority directs his suspension, the employee is entitled to such subsistence allowance as is admissible to the employee under suspension under sub-regulation (4) of Regulation 47. Regulation 47 thus comes in the picture only for the purpose of determining the amount of subsistence allowance payable to such employee and further only when the competent authority directs that such employee should be treated as being under suspension during the period of his absence. After analysis of the said regulations, the Supreme Court held as under:-

“15. We have already pointed out the effect of the relevant provisions of Regulations 39, 46 and 47. The said regulations read together, leave no manner of doubt that in case of an employee who is arrested for an offence, as in the present case, his period of absence from duty is to be treated as not being beyond circumstances under his control. In such circumstances, when he is treated as being under suspension during the said period, he is entitled to subsistence allowance. However, the subsistence allowance paid to him is liable to be adjusted against his pay and allowances if at all he is held to be entitled to them by the competent authority. The competent authority while deciding whether an employee who is suspended in such circumstances is entitled to his pay and allowances or not and to what extent, if any, and whether the period is to be treated as on duty or on leave, has to take into consideration the circumstances of each case. It is only if such employee is acquitted of all blame and is treated by the competent authority as being on duty during the period of suspension that such employee is entitled to full pay and allowances for the said period. In other words, the Regulations vest the power exclusively in the Bank to treat the period of such suspension on duty or on leave or otherwise. The power thus vested cannot be validly challenged. During this period, the employee renders no work. He is absent for reasons of his own involvement in the misconduct and the Bank is in no way responsible for keeping him away from his duties. The Bank, therefore, cannot be saddled with the liability to pay him his salary and allowances for the period. That will be against the principle of 'no work, no pay' and positively inequitable to those who have to work and earn their pay. As it is, even during such period, the employee earns subsistence allowance by virtue of the Regulations. In the circumstances, the Bank's power in that behalf is unassailable.”

The judgment relied upon by the learned Standing Counsel for the respondents-bank is not applicable to the facts of the present case. The dismissal of the petitioner was neither because of the pending departmental enquiry nor in contemplation of a departmental enquiry. Dismissal of the petitioner was only on account of his conviction for the offences alleged against him on the complaint lodged by the respondent bank. If no complaint was made by the respondent bank, there would not have been any proceedings against him. As a matter of fact, he was tried at the instance of the employer. The conviction and later dismissal had direct nexus with the employment. It was not an individual or independent act of the petitioner which deprived the employer of the benefit of his service rather employee was denied the benefit of his service on account of criminal proceedings initiated in relation to his employment/service. His dismissal being solely on account of conviction, he cannot be denied the benefit of back wages and other service benefits on acquittal of the charges.

For the aforesaid reasons, there is absolutely no justification on the part of the respondents to deny back wages and other attendant benefits to the petitioner.

Accordingly, the Writ Petition is allowed setting aside the proceedings in Lr.No.APGVB/V & DP/271/11-12, dated 07.07.2011, to the extent of denying the back wages and other attendant benefits to the petitioner for the period from 30.01.2004 to 23.07.2011. The respondents are directed to pay the petitioner all the back wages and other attendant benefits for the aforesaid period, within a period of two months from the date of receipt of a copy of this Order. There shall be no order as to costs.

Miscellaneous petitions, if any, pending shall stand closed.