Jagdish Singh vs Delhi Jal Board

Mukundakam Sharma, C.J.—This appeal is directed against the judgment and order dated 12th January, 2006 whereby the learned Single Judge dismissed the writ petition filed by the appellant holding that no case for interference under the provisions of Article 226 of the Constitution of India was made out. The appellant herein was employed by the respondent, namely Delhi Jal Board, originally in 1981. He was regularised as Beldar in the year 1989 and subsequently appointed as Assistant Pump Driver in the year 1992. While working as such, the appellant was named in the First Information Report along with several other persons for commission of offences under the provisions of various Sections of the Indian Penal Code, including Sections 302/307. Charges were framed as against the appellant in those proceedings and the appellant along with other accused persons was sent for trial.

The respondent, upon receiving information that the appellant is involved in the aforesaid criminal case, put him under suspension effective from 15th April, 1995. The learned trial court, however, acquitted the appellant of the charges by recording the following findings:

From the above statements of the witnesses it is clear that the prosecution produced all the necessary witnesses before this Court, but none of them supported the prosecution version. These witnesses have admitted that Amarpal, Jagpal and Brahmpal were murdered in this occurrence and that Kumari Poonam, Yashpal and Reajesh sustained injuries, they have not admitted the firing of shots and pelting of stones by the accused and have expressly stated that they have not seen the accused doing those acts. These witnesses not having lent support to the prosecution version, there was no use of examining rest of the witnesses. Since the accused admitted formal authenticity of the prosecution record, it was deemed proper to close the prosecution evidence. From the statements of the witnesses it is clear that both the sides have arrived at an amicable settlement, compromise, on account of which prosecution witnesses have not adduced evidence against accused. In cases in which important witnesses do not support the prosecution version, the court has no alternative except to acquit the accused. Accordingly, all the accused deserve to be acquitted.

After his acquittal, the appellant brought the aforesaid fact to the notice of the respondent. Consequently, by order dated 15th May, 2002, the competent authority issued an order directing reinstatement of the appellant, but at the same time passing an order restricting the pay and allowances of the suspension period to the amounts already paid to him. Resultantly, the benefit of payment of full salary and allowances was denied to the appellant.

Being aggrieved by the aforesaid action of the respondent, the appellant filed an appeal to the Board, which was rejected by order dated 9th September, 2002. The appellant, being aggrieved, filed a writ petition in this court, which was registered as WP(C) No. 7433/2002.

The learned Single Judge, after hearing the counsel for the parties, passed an order on 12th January, 2006 whereby the writ petition was dismissed as aforesaid. While recording the findings leading to the dismissal of the writ petition, the learned Single Judge has also referred to the records as also to the judgment of the Supreme Court in State of U.P. and another Vs. Ved Pal Singh and another, .

We have heard the learned counsel appearing for the parties on this appeal. We have also perused the records placed before us and also the judgment passed by the Supreme Court in the case of State of U.P. and another (supra).

Counsel appearing for the appellant has submitted before us that in the same criminal case there was another accused, namely, Geetam Singh, who was also similarly acquitted like the appellant, but in his case the respondent reinstated him in service with full salary and allowances. It is submitted by him that there is a hostile discrimination so far as passing orders in respect of the case of the appellant is concerned, which is apparent on the face of the records of the case.

In order to appreciate the aforesaid contention, we have also perused the judgment and order passed by the criminal court. It is clearly recorded therein that from the statements of the witnesses, it was clear that both the sides had arrived at an amicable compromise on account of which prosecution witnesses have not adduced evidence against the accused persons. The learned Additional Sessions Judge has clearly recorded in his order that important witnesses did not support the prosecution version due to the aforesaid settlement or compromise, which is arrived at between the parties. The aforesaid order was passed on 8th January, 2001. Thereafter, the case of the appellant was considered and while ordering for his reinstatement in service, it was ordered that he would not be paid the back wages, but would be entitled to other benefits. In the aforesaid decision, which is referred to and relied upon by the learned Single Judge, namely, State of U.P. and another (supra), in paragraph 4 it is recorded as follows:

..... Criminal prosecution launched against the public servant many a time may end may be due to technical defects or apathy on the part of prosecution or approach in consideration of the problem or the witnesses turning hostile or other diverse reasons but the meat of the matter is that on equitable consideration the Government servant claims reinstatement into service. Equity per se may not prevent the Government to take appropriate action under the conduct rules or under Article 311 of the Constitution but many a time they do become a fruitless exercise. Resultantly, a public servant on reinstatement claims consequential benefits including back wages......

Therefore, when the court directs payment of back wages on reinstatement, the court/tribunal is required to consider the backdrop of the circumstances and pragmatically apply the principle to the given set of facts. No abstract principle of universal application could be laid in that behalf.....

In the present context, we also place reliance on the judgment of the Supreme Court in Krishnakant Raghunath Bibhavnekar Vs. State of Maharashtra and others, , the relevant para of which is reproduced below:

...... It is true that when a Government servant is acquitted of offences, he would be entitled to reinstatement. But the question is: whether he would be entitled to all consequential benefits including the pensionary benefits treating the suspension period as duty period, as contended by Shri Ranjit Kumar? The object of sanction of law behind prosecution is to put an end to crime against the society and laws thereby intends to restore social order and stability. The purpose of prosecution of a public servant is to maintain discipline in service, integrity, honesty and truthful conduct in performance of public duty or for modulation of his conduct to further the efficiency in public service. The Constitution has given full faith and credit to public acts. Conduct of a public servant has to be an open book; corrupt would be known to everyone. The reputation would gain notoriety. Though legal evidence may be insufficient to bring home the guilt beyond doubt or fool-proof. The act of reinstatement sends ripples among the people in the office/locality and sows wrong signals for degeneration of morality, integrity and rightful conduct and efficient performance of public duty. The constitutional animation of public faith and credit given to public acts, would be undermined. Every act or the conduct of a public servant should be to effectuate the public purpose and constitutional objective. Public servant renders himself accountable to the public. The very cause for suspension of the petitioner and taking punitive action against him was his conduct that led to the prosecution of him for the offences under the Indian Penal Code. If the conduct alleged is the foundation for prosecution, though it may end in acquittal on appreciation or lack of sufficient evidence, the question emerges: whether the Government servant prosecuted for commission of defalcation of public funds and fabrication of the records, though culminated into acquittal, is entitled to be reinstated with consequential benefits? In our considered view, this grant of consequential benefits with all back-wages etc. cannot be as a matter of course. We think that it would be deleterious to the maintenance of the discipline if a person suspended on valid considerations is given full back wages as a matter of course, on his acquittal....

In Hukmi Chand Vs. Jhabua Cooperative Central Bank Ltd., Jhabua (M.P.) and Another, , the employee had, inter alia, challenged the validity of Rule 49(ii) of the Madhya Pradesh Cooperative Central Bank Employees Rules, 1977 inasmuch as the same empowered the competent authority to direct a reinstatement upon acquittal without payment of back wages. Repelling the contention that the power available under the said Rule to the employer was a fetter and that the same was arbitrary, their Lordships held that the right to reinstatement on acquittal did not carry with it by necessary implication a right to back wages. The employer had the discretion to grant back wages which discretion could not be described as arbitrary. The Court observed:

The right to reinstatement on acquittal, therefore, does not carry with it, by necessary implication, a right to back wages under Rule 49(ii). But the employer has the discretion to grant back wages. Such a fetter if at all it is a fetter, cannot be considered as arbitrary, in view of the fact that the termination of services under Rule 49 (i) is on conviction. During the pendency of an appeal, the conviction is not obliterated. However, on acquittal, Rule 49 (ii) provides for reinstatement. The grant of back wages, in these circumstances, will obviously depend upon the facts and circumstances of each case, especially because in the interregnum, the employee does not work with the employer on account of a valid termination of service.

In the present case also the competent authority has taken notice of all the facts and thereafter passed the aforesaid order in respect of the appellant. The decision of the Supreme Court clearly lays down that entitlement to back wages or treatment of an employee as having spent as on duty for the period he was under suspension, during the time of continuation of the criminal trial is not a matter of course or an invariable right, which is vested on the said ex-person. The employer is required to consider all the pros and cons of the matter and thereafter to arrive at an opinion as to whether or not such salary and allowance is payable to the concerned employee. In the present case, the competent authority has considered the facts and circumstances of the case and thereafter passed an order denying the payment of arrear salary and allowances. The learned Single Judge has clearly recorded that the order in respect of Geetam Singh was passed subsequently during the pendency of the writ petition filed by the appellant. It is also established from the records that the aforesaid issue with regard to hostile discrimination vis-a-vis the case of Geetam Singh was not taken up by the appellant in the writ petition filed by him and that fact was only brought to the notice of the court during the course of hearing. Without there being basic facts to support a case of hostile discrimination, the learned Single Judge declined to interfere with the order passed by the competent authority. We find no infirmity with the order passed by the competent authority. We find no merit in this appeal and the same is dismissed.