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Judgment
Heard.
Rule.Rule made returnable forthwith.
Heard finally by consent.
This is a case in which two similarly situated employees have been treated differently in an arbitrary manner.
There were two accused in Regular Criminal Case No.36/2011 before the Judicial Magistrate, First Class, Deori, District Gondia, namely, one
Kishor Motilal Meshram, as an accused No.1 and Ku. Roshani Daulatrao Waghmare, petitioner as an accused No.2.
In this case both the accused Nos.1 and 2 were prosecuted for offences punishable under Section 498ÂA and 506(2) read with Section 34 of the
Indian Penal Code.On merits of the case, learned Magistrate found that the prosecution could not prove the charge so made against both the accused
beyond reasonable doubt and therefore by the order passed on 13.2.2014, the learned Magistrate acquitted both the accused.
Prior to this acquittal of both the accused as aforestated, there was a trial held for the same offences and both the accused were found guilty and
convicted of the same offences.This conviction was maintained by the appellate Court but in revision filed before this Court, the concurrent findings of
guilt and conviction of both the accused were upset by this Court and the matter was remanded back to the trial Court for holding the trial for the said
offences afresh.Accordingly, after remand, the trial, vide Regular Criminal Case No.36/2011, was held and as stated earlier, the trial culminated in
acquittal both the accused.It is pertinent to mention here that the order of remand passed by this Court in revision application was of the date of
13.11.2006.
Both these accused persons, were Assistant Teachers in a school run by the respondent No.1.In consequence of conviction given to both these
accused in previous trial which was confirmed by the appellate Court, both these accused persons were terminated from service by the respondent
No.1.But, as the convictions were set aside by the High Court in the revision application on 13.11.2006 and a reÂtrial was ordered, the accused No.1
Kishore Motilal Meshram chose to make a representation to the respondent No.1 for his reinstatement in service. This representation was made on
3rd September, 2010.At that point of time, the trial Court after remand, had not disposed of the criminal case. This petitioner, accused No.2, however
did not make any representation to the respondent No.1 for seeking reinstatement just as the coÂaccused Kishor Meshram had made.
The order of acquittal was passed by the trial Court after remand on 13.2.2014.So, it was expected that the representation dated 3rd September,
2010 filed by the coÂaccused Kishore Meshram was kept pending till final decision of the criminal case.But, that was not to be and he was directed to
be reinstated in service by respondent No.1 w.e.f. 14.10.2011, much before the order of acquittal was passed by the Criminal Court.One does not
understand as to what the Department would have done just in case there was a reversal of fortunes for the co accused Kishore Meshram.Be that as
it may, the fact remains that the coÂaccused Kishore Meshram was reinstated in service from 14.10.2011 and there is no disputeabout the fact that
he was equally situated as the present petitioner.
Now, the question would be as to whether this petitioner would also be entitled to claim and receive similar benefits as Kishore Meshram or
not.The question would have to be answered as in the affirmative for the reason that both Kishore Meshram and this petitioner were terminated from
service solely on the ground of their conviction in a criminal case, which was initiated not by the Department or at the behest of the Department but
because of some activities carried out by these persons outside the Department. In such a case, after verdict of acquittal came, it would have been
necessary for the Department to treat both the similarly situated accused persons equally or otherwise there would have been a violation of the
principle of rule of law and equality as enunciated by Articles 14 and 21 of the Constitution of India.
In the case of Union of India and others vs. Jaipal Singh, reported in 2004(3) Mh.L.J. 793, the Hon'ble Apex Court has carved out two categories
of cases so as to fix the responsibility of the Department regarding payment of backwages from a particular date.The first category consists of the
cases which are initiated by or at the behest of the Department and in this category of cases, whenever the verdict of acquittal is rendered by a
criminal Court, the Hon'ble Apex Court has held that different principle would rule for it would have to be seen as to whether Department was
justified in issuing the termination order or not. The second category comprises criminal cases which are initiated because of some action done by the
employees outside the scope of their duty and in a private manner, for which the Department is not responsible.In this category of the cases, the
Hon'ble Apex Court has held that the Department cannot in any manner be found fault withfor having kept the employee out of service and, therefore,
Department would not be liable to pay the backwages.So, the basic principle is that the Department would be liable to pay or would not be liable to
pay the backwages depending upon the absence or presence of the fault on the part of the Department.
Having regard to this law, it would have to be examined as to whether there was any fault on the part of the Department and if it was, as to from
what date the fault could be found out.As stated earlier, if the Department thought it fit to reinstate in service a similarly situated accused person from
14.10.2011, there was no reason for the Department to have deprived the petitioner, also a similarly situated Assistant Teacher, of the same
benefit.Rather, the petitioner was made to run from pillar to post and to issue Advocate's notice for initiating contempt proceedings and it was only
after receipt of such a threat that the Department issued order of reinstatement to the petitioner in response to which the petitioner joined her post
w.e.f. 8.7.2015.Learned counsel for the Department submits that the petitioner was asked to join her service by letter issued on 4.6.2015, but she did
not.The argument cannot cannot be accepted for the reason that this letter was conditional and it made the reinstatement in service of the petitioner
subject to her fulfilling certain conditions, which criterion was not applied while reinstating in service the coÂaccused Kishore Meshram w.e.f.
14.10.2011. So the fact that is established on record is that this petitioner was unreasonably and arbitrarily treated differently from the similarly
situated coÂemployee and coÂaccused Kishore Meshram and as such from the date on which the benefit was given to Meshram till the time the
petitioner joined her service, the petitioner would have to be held as entitled to receive all the benefits including backwages that her similarly situated
coÂemployee have been granted by the Department.So, denial of similar benefits from the same date is a fault of the Department and the petitioner
for the fault of the Department cannot be made to suffer. 13. Shri Rohit Joshi, learned counsel for the petitioner relying upon the case Baban Shriram
Wafare Vs. Zilla Parishad, Ahmednagar, decided by the Division Bench of this Court 2002(3) Mh.L.J 390 submits that in this case, which involved
prosecution of the employee for an offence punishable under Section 302 I.P.C., the Division Bench of this Court directed the Department to reinstate
in service the employee along with the backwages after a verdict of acquittal was recorded by the trial Court, notwithstanding no fault on the part of
the Department. However, considering the law laid down by the Hon'ble Apex Court in the case of Jaipal Singh (supra) which casts a duty upon the
Court to act only upon the principle of fault liability, I do not think that this Court can consider any application of the decision of this Court in Baban
(supra) to the facts of the case.Accordingly, the case of Baban would render no assistance to the petitioner in the present case.
In the result, the petition deserves to be allowed and it is allowed accordingly.
The respondent Nos.1 and 2 are directed to pay the backwages in the scale as applicable to the post of Assistant Teacherto the petitioner w.e.f.
14.2.2011 till 7.7.2015 within three months from the date of order.
It no full salary is being paid to the petitioner by the respondent Nos.1 and 2, it would be in order now that full salary in the scale of Assistant
Teacher is paid to the petitioner w.e.f. 8.7.2015 and the difference of the backwages on this count, if any, also be paid within three months from the
date of order.
The order be complied with by respondent Nos.1 and 2 within three months from the date of order.
Rule is made absolute in the above terms.No costs.