Sandhya vs State Of Maharashtra And Anr

The challenge raised in the present writ petition is to the order dated 31.03.2006 passed by the Additional Commissioner in an appeal preferred

under Rule 14 of the Maharashtra Zilla Parishads District Services (Discipline and Appeal) Rules, 1964 (for short, 'the Discipline and Appeal Rules').

By the said order, the appeal preferred by the petitioner challenging the order passed by the Chief Executive Officer, Zilla Parishad, Amravati

dismissing the petitioner from service and treating the period of suspension as period of punishment has been dismissed.

The facts in brief are that the petitioner was appointed as Assistant Teacher with Panchayat Samiti, ChandurÂRailway. The petitioner's sisterÂ‐

in law committed suicide and the brother of the victim alleged that it was the petitioner who had caused the said victim to commit suicide. Hence a

complaint was lodged and after investigating the matter, an offence was registered against the petitioner and two others. The petitioner was

accordingly arrested on 18.09.1999 in Crime No. 139/1999. The said crime was registered under the provisions of Sections 306, 498 A read with

Section 34 of the Indian Penal Code. The petitioner remained in custody for the period from 18.09.1999 to 24.09.1999. In view of aforesaid, the

petitioner was placed under suspension by the order dated 14.10.1999. In the criminal trial the petitioner came to be convicted by the judgment dated

30.11.2004 and was sentenced to suffer simple imprisonment for two years and to pay a fine of Rs.1,000/Â. This order of conviction was challenged

by the petitioner in Criminal Appeal No.764/2004. In the meanwhile based on aforesaid order of conviction dated 30.11.2004 a show cause notice was

issued to the petitioner on 13.04.2005. In the enquiry proceedings the petitioner was held guilty and hence on 10.05.2005 the Chief Executive Officer

passed an order under Rule 9 (1) of the Discipline and Appeal Rules thereby dismissing the petitioner from service. The period of suspension was

treated as period of punishment. The petitioner being aggrieved, preferred an appeal under Rule 14 of the Discipline and Appeal Rules. The Additional

Commissioner referred to para 4.6 of the Departmental Enquiry Manual as well as Rule 9(1) of the Discipline and Appeal Rules. Considering the

gravity of the criminal charges and on the basis of order of conviction, the Additional Commissioner maintained the order of punishment of dismissal

imposed by the Chief Executive Officer. Being aggrieved, the aforesaid order has been challenged in the present writ petition.

Shri A.S.Dhore, learned counsel for the petitioner submitted that during pendency of the writ petition, the criminal appeal preferred by the petitioner

being Criminal Appeal No.764/2004 came to be allowed by the judgment dated 25.04.2018. The order of conviction passed by the Sessions Court in

Sessions Trial No.138/1999 was set aside and the petitioner was acquitted of the offences in question. It was submitted that the Court had held that

the prosecution had failed to prove the allegations as made and hence acquittal in question was not based on granting benefit of doubt to the petitioner.

Since the acquittal in question was a clean acquittal, the entire premise for dismissing the petitioner from service was washed out. It was then

submitted that though notice dated 31.01.2000 along with copy of the chargeÂsheet was served upon the petitioner for the purposes of holding an

enquiry, no enquiry was conducted nor was copy of any enquiry report supplied to the petitioner. It was his contention that as no enquiry was held

against the petitioner and the order of dismissal was based purely on the conviction of the petitioner which order of conviction had been set aside, the

order of dismissal could not be sustained. In that regard, he referred to the judgment of the Division Bench in Baban s/o Shriram Wafare Vs. Zilla

Parishad, 2002 (3) Mh.L.J.390 wherein it was held that on acquittal from the criminal charges, the employee was entitled for reinstatement in service

with continuity and other consequential benefits. He also referred to the decision in Capt. M.Paul Anthony Vs. Bharat Gold Mines Ltd. and anr. AIR

1999 SC 1416 in that regard. Attention was then invited to the affidavit dated 14.06.2019 filed on behalf of the petitioner in which it was stated that the

petitioner was paid suspension allowance to the extent of 75% of her salary till March 2018 and that the petitioner was willing to relinquish her claim

to the difference of salary in the event of her reinstatement in service. He also placed reliance on the decision in Babu Lal Vs. State of Haryana and

others, (1991) 2 SCC 335 in support of his submissions. It was thus submitted that as the entire basis for dismissing the petitioner from service had

ceased to exist, the petitioner was entitled to be reinstated in service.

Shri S.A. Saoji, learned counsel for the respondent no.2ÂZilla Parishad on the other hand supported the impugned order. According to him, since

the petitioner was convicted in the criminal trial by the Sessions Court on 30.11.2004, the provisions of Rule 9(1) of the Discipline and Appeal Rules

were rightly invoked by the Chief Executive Officer for dismissing the petitioner from service. The charges levelled against the petitioner were of

serious nature and there was no reason to interfere with the impugned order dismissing the petitioner from service. He placed reliance on the decision

in A.S.Manjrekar Vs. Bombay Port Trust, 2010(5) Mh.L.J. 631 and submitted that mere acquittal in the criminal case would not enable the petitioner

to seek reinstatement in service. He thus submitted that no interference with the impugned order was called for.

I have heard the learned counsel for the parties at length and with their assistance, I have perused the material on record. When the notice was

issued in this writ petition on 16.06.2006 this Court had directed the parties to maintain statusÂquo as on that date. Thereafter on 22.09.2006 when the

writ petition was admitted the interim order dated 16.06.2006 was vacated. Thereafter pursuant to order dated 18.12.2018 the Chief Executive Officer

remained present before the Court. However, further record as directed to be produced was not so produced. It is also not in dispute that during the

pendency of the writ petition, Criminal Appeal No.764/2004 was decided by this Court on 25.04.2018. After setting aside the judgment of the Sessions

Court in Sessions Trial No.138/1999, the petitioner along with other accused were acquitted of the offences with which she was charged. Another

fact that has been brought on record is that the petitioner was being paid suspension allowance to the extent of 75% of her salary till March 2018. It is

in these facts that the challenge as raised to the impugned order would have to be considered.

The offence in question for which the petitioner was implicated was registered on 13.09.1999. The petitioner was placed under arrest when the said

offence was being investigated. On 31.01.2000 the Deputy Chief Executive Officer passed an order informing the petitioner that under the provisions

of Rule 6 of the Discipline and Appeal Rules, an enquiry was proposed to be held against the petitioner. She was asked to show cause in that context.

On the same day, the Block Education Officer, Panchayat Samiti, ChandurÂRailway was appointed as a Presenting Officer. As per the charge

proposed against the petitioner her implication in Crime No.139/1999 and arrest for the period from 18.09.1999 to 24.09.1999 was stated to be the

foundation of her imputation. The petitioner was convicted by the Sessions Court on 30.11.2004. On the basis of her conviction, her services were

terminated vide order dated 10.05.2005. As noted above, the petitioner stands acquitted from the aforesaid offence by virtue of the judgment in

Criminal Appeal No.764/2004 dated 25.04.2018. As per the affidavit filed on behalf of the petitioner on 14.06.2019 she was never supplied any

enquiry report nor was any enquiry held against her. There is no rebuttal to the aforesaid affidavit. On the contrary, it was submitted on behalf of the

respondent no.2ÂZilla Parishad that there was no record available of such enquiry against the petitioner having been held. It is thus clear that the

services of the petitioner came to be terminated only on the ground that she was convicted in the criminal trial.

In Baban Shriram Wafare (supra) a somewhat similar situation was considered. The petitioner therein was appointed as a Primary Teacher in a

School run by the Zilla Parishad. He came to be arrested in connection with registration of an offence punishable under Section 302 of the Penal Code

after which he was tried and then convicted by order dated 20.06.1983. When the sessions case was pending his services came to be suspended. The

order of conviction which was challenged in an appeal was allowed by the High Court on 29.1.1987 and hence the petitioner therein sought

reinstatement in view of his acquittal. The said petitioner was however issued fresh order of appointment as Assistant Teacher. The petitioner

challenged his fresh appointment on the ground that he had lost his seniority by virtue of that order. The Zilla Parishad passed an order that the earlier

period of suspension would be treated as period of suspension and the same was therefore challenged by the petitioner. The question considered by

the Division Bench was whether the petitioner was entitled for consequential benefits on his reÂappointment on account of his acquittal. It was held

that by virtue of acquittal in the criminal proceedings the petitioner therein was entitled for reinstatement in service with continuity and other

consequential benefits as if he continued in service in the absence of the criminal case registered and decided against him. It is found that the facts of

the case in hand are somewhat identical to the facts of the aforesaid case.

In A.S.Manjrekar (supra) which was relied upon by the learned counsel for the Zilla Parishad, it was observed that mere acquittal in a criminal case

would not by itself entitled the employee to seek reinstatement in each and every case. If it was found that the charges levelled amounted to

misconduct as per the service conditions and if the punishment was imposed as per the service conditions, the same was not liable to be set aside only

on the ground that the employee was acquitted. In that decision the charges were proved independently and irrespective of the criminal proceedings.

This decision is clearly distinguishable in view of the fact that the departmental enquiry against the petitioner has not been shown to have been held.

It is thus found that the services of the petitioner were initially suspended only on the ground that she came to be arrested pursuant to the

registration of an offence against her. Her services were thereafter terminated only on the ground that she was convicted in the criminal proceedings

but no independent departmental enquiry is shown to have been held against the petitioner. Hence, the entire basis for suspending and thereafter

terminating the services of the petitioner has ceased to operate in view of her acquittal in the criminal proceedings. In the light of the fact that the

petitioner now stands acquitted of the criminal charges for which she was tried and on which basis her services came to be terminated on 10.05.2005,

she is entitled to be reinstated on the post held by her prior to the termination of her services. The aspect of entitlement to backÂwages would have to

be thus considered.

The petitioner was convicted in the criminal trial on 30.11.2004 and on that basis her services were terminated by the order dated 10.05.2005.

Prior thereto she was placed under suspension in view of the fact that she was arrested on 18.09.1999 and was in police custody till 24.09.1999. From

10.05.2005 till 25.04.2018 she was not in a position to render her services as the order of conviction was not set aside till that date. It is only after

25.04.2018 when the order of conviction was set aside that the petitioner was in a position to render services. The prosecution of the petitioner was

not on account of any act committed during the course of employment with the department. In other words, for an act committed when she was a

citizen the petitioner came to be prosecuted. The department was in no manner involved but it was deprived of taking services of the petitioner for the

aforesaid period. Since the department was not at fault, it cannot be called upon to pay the petitioner backÂwages for the entire period when it could

not take services from the petitioner. In this regard, it is necessary to refer to the decision in Union of India and others Vs. Jaipal Singh (2004) 1 SCC

The services of the employee therein came to be terminated on account of his involvement and subsequent conviction for an offence punishable

under Section 302 of the Indian Penal Code. On his acquittal, the employer was directed to reinstate the said employee in service with full back wages

and other consequential benefits. This order passed by the High was challenged by the employer before the Hon’ble Supreme Court. In that

context the following observations in paragraph 4 were made which are found to be relevant :Â​

4.......If prosecution, which ultimately resulted in acquittal of the person concerned was at the behest of or by the department itself, perhaps different

consideration may arise. On the other hand, if as a citizen the employee or a public servant got involved in a criminal case and if after initial conviction

by the trial court, he gets acquittal on appeal subsequently, the department cannot in any manner be found fault with for having kept him out of service,

since the law obliges a person convicted of an offence to be so kept out and not to be retained 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.

In Ranchhodji Chaturji Thakore Vs. Superintendent Engineer, Gujrat Electricity Board, Himmatnagar and another, (1996) 11 SCC 60,3 an employee

who was dismissed from service on account of his conviction under Section 302 of the Indian Penal Code was directed to be reÂinstated in service

after his acquittal in appeal. He was denied back wages on the ground that he had disabled himself from rendering service on account of his

conviction and incarceration in jail.

From the aforesaid it becomes clear that if the employee as a citizen gets involved in a criminal case and the department is not responsible in any

manner then the employer cannot be called upon to pay the employee for the period for which it could not avail the services of the employee. A

similar situation arises in the present case. The involvement of the petitioner in the criminal case had nothing to do with her employment as an

Assistant Teacher. She was prosecuted as a citizen and hence for the period for which the conviction continued, the department could not have

engaged her services. It is only on her acquittal that it was possible for the employer to take her services. Hence, the petitioner would be entitled for

backÂwages from 25.04.2018 when Criminal Appeal No.764/2004 was allowed and the petitioner came to be acquitted. She was not liable to be kept

out of service thereafter. It is thus held that the petitioner is not entitled for backÂ​wages from 10.05.2005 to 24.04.2018.

It is however surprising to note that the Zilla Parishad has been paying suspension allowance to the petitioner which fact has been brought on

record by the petitioner herself. If according to the Zilla Parishad the services of the petitioner were terminated by the order dated 10.05.2005 which

order was confirmed by the Additional Commissioner on 31.03.2006, there was no reason for the Zilla Parishad to have continued to pay suspension

allowance to the petitioner. Interim orders passed by this Court were subsequently vacated 22.09.2006 and hence there does not appear to be any

justification for paying suspension allowance after having terminated the services of the petitioner. The petitioner has stated that she was receiving

suspension allowance to the extent of 75% of her salary till March, 2018. The basis on which the said suspension allowance was being paid to the

petitioner cannot be comprehended in view of the fact that her services were terminated by the order dated 10.05.2005 and by the order dated

22.09.2006 the interim relief granted earlier stood vacated. Thus in no event after 22.09.2006 the petitioner could have been paid any suspension

allowance as the order of termination had operated. The suspension allowance received by the petitioner from 22.09.2006 till 24.04.2018 would have

to be therefore adjusted while paying her backÂwages for the period from 25.04.2018 till her reinstatement. If it is found that the petitioner has

received an excess amount than the amount of back wages to which she is entitled, a proportionate deduction from her regular salary after

reinstatement would have to be made.

Thus in the light of aforesaid discussion, the following order is passed:

(i) The order dated 10.05.2005 passed by the Chief Executive Officer of the Zilla Parishad as well as the order dated 31.03.2006 passed by the

Divisional Commissioner are set aside.

(ii) It is held that the petitioner is entitled to reinstatement in service from 25.04.2018. However, the petitioner is entitled to receive backÂwages only

from 25.04.2018 till her reinstatement. The suspension allowance received by the petitioner from 22.09.2006 till 24.04.2018 shall be adjusted while

paying her back wages for the period from 25.04.2018 till her reinstatement. If it is found that the petitioner has received an excess amount than the

amount of back wages to which she is entitled, a proportionate deduction from her regular salary after reinstatement shall be made.

(iii) The Divisional Commissioner, Amravati Division, Amravati respondent no.1 shall make necessary enquiry as how the petitioner was paid

suspension allowance after 22.09.2006 despite the fact that the interim order granted in writ petition had been vacated and the order of termination of

the petitioner’s services had operated. The enquiry shall be made within two months from today and report thereof shall be submitted to this

Court. For reporting compliance the matter be placed before the Court on 07.10.2019.

(iv) The writ petition is allowed in aforesaid terms with no orders as to costs.