Santosh Kumar Patnayak vs State Of Chhattisgarh

The petitioner has preferred the present writ petition praying for the following reliefs:-

“10.1. This Hon'ble Court may kindly be pleased to call the records in relating to the petitioner.

10.2. The Hon'ble court may kindly be pleased to set-aside the order dated 19/06/2018 (Annexure P/1) passed by the Respondent No-3.

10.3. That, the Hon'ble court may kindly be pleased to respondent authority may be directed to consider the petitioner to be in service with effect from 11/01/1999 to 6/5/2014 for the purpose of calculating seniority, pension, gratuity and other retiral benefits with interest of 9% per annum..

10.4. Any other relief in the discretion of this Hon'ble Court.”

Brief facts of the case are that on 28/06/1984 the petitioner joined his service on the post of Patwari at Gharghoda, District Raigarh. In the year 1990 in month of June, when he was working on the same post at village Terum District Raigarh (C.G), one Fakiro made a written complaint against the petitioner before the Superintendent of Police, on the basis of which the offence was registered and the petitioner was prosecuted under Sections 7 & 13 (1) (d) with Section 13(2) of the Prevention of Corruption Act, 1998 whereby the Petitioner was convicted by the learned Special Judge, Raipur under the aforesaid offences on 24/11/1998. On the basis of conviction, the Petitioner was removed from his service on 11/01/1999. Being aggrieved by the judgment passed by the trial court, the petitioner preferred an appeal before the High Court, which was allowed and the Petitioner was acquitted vide order dated 23/08/2013 from all the charges as levelled against him. After acquittal from the said charges, the petitioner moved an application for his reinstatement in his service, the same was considered and the petitioner was taken in service, but, vide order dated 06/05/2014, the period for which the petitioner was out of service has been wrongly decided as "NO WORK NO PAY", against which the petitioner preferred writ petition bearing W.P.S No.2548/2018 before this Court. The aforesaid writ petition was allowed by this Court vide order dated 23/03/2018 and the aforesaid order was quashed and the matter was remitted back to the respondent no.3 to pass a reasoned order after granting opportunity of hearing to the petitioner. The respondent no 3 did not provide any opportunity to the petitioner and vide the impugned order dated 19/06/2018 simply repeated the earlier order without considering the directions issued by this Court, thereafter the petitioner preferred contempt petition bearing Cont Case (C) No.974/2018, wherein this Court vide order dated 11/09/2018 granted liberty to the petitioner to challenge the second order passed by the respondent authorities afresh. Hence the present writ petition has been filed by the petitioner.

Learned counsel for the petitioner submits that the order of the respondent authorities is unsustainable in law. The conviction of the petitioner by the learned Special judge, Raipur was contrary to law and facts of the case, against which the appeal preferred by the petitioner before the High Court has been allowed and the Petitioner has been honorably acquitted from the aforesaid charges and therefore, the conviction and sentence passed by the learned special judge, Raipur was not just and proper and only on the ground of conviction, the petitioner was terminated from his service, for which the Petitioner was not responsible and during the period from 11/01/1999 to 23.08.2012, the petitioner is entitled for full back wages as he was in service. The criminal case was pending before the Learned Special Judge, Raipur from 1992 to 24.11.1998 where the petitioner was facing trail and there was no delay in trial on the part of the petitioner and convicted in the year 1998, whereas his appeal was pending before the High Court and it was decided in the year 2013 i.e. after 15 years from the year of filing of the Appeal as such there is also no delay on the part of the Petitioner and therefore, the petitioner is entitled for full back wages for the aforesaid period. Therefore, the writ petition may kindly be allowed and the petitioner be paid full back wages for the aforesaid period. Reliance has been placed on the judgment rendered by this Court in the matter of Shankar Lal Soni (died) through LRs vs The State of Chhattisgarh and others, passed in WPS No.994/2010, decided on 09.07.2021.

Learned State counsel opposes the submission made by the petitioner’s counsel and submits that the petitioner was working as Patwari and he was suspended vide order dated 23/6/1992 issued by the answering respondent no. 3 on account registration of criminal case against the petitioner for commission of offence under sections 7813(1)(d) with section 13(2) of Prevention of Corruption Act, 1998. The petitioner was convicted and sentenced by learned Trial Court for the above said offences vide order dated 24/11/1998. Subsequently, respondent No.3 passed the order dated 11/01/1999, by which the petitioner has been removed from service and was subsequently acquitted by the High Court, upon which respondent No.3 passed the order dated 06/05/2014 (Annexure P/3) reinstating the petitioner in service, however, the petitioner's absent period from 11/01/1999 to 06/05/2014 has been treated as 'No Work No Pay'. Against the said order dated 06/05/2014 the petitioner had preferred writ petition before this Court WP(S) No.2548/2018, which has been disposed of vide order dated 23/03/2018 remitting back the matter to the respondent No. 3 with direction to reconsider the case of the petitioner keeping in view of the provisions of Fundamental Rules 54 without being influenced by any of the observations and pass a speaking order. In compliance of the said order the petitioner's case has been considered by the respondents and after examining each and every documents, evidences and taking into consideration the provisions of Fundamental Rules, 54, it is observed that since the petitioner was absent from duty from 11/01/1999 to 06.05.2014 as such he had not performed any work during that period, therefore, he is not entitled for salary and allowance for the absent period. Accordingly the order dated 19/06/2018 (Annexure P/1) has been passed by the respondent No.3. The petitioner got retired from service on 31/03/2018 and the pension case has already been finalized and the following retiral dues have been paid to the petitioner and he is getting monthly pension as per rules. The order 19/06/2018 (Annexure P/1) issued by the respondent No. 3 is just, proper and legal. Therefore, the writ petition may kindly be dismissed. Reliance has been placed on the judgment rendered by the Hon’ble Supreme Court in the matter of Ranchhodji Chaturji Thakore vs Superintendent Engineer, Gujarat Electricity Board, Himmatnagar (Gujarat) and another, reported in (1996) 11 SCC 603.

Heard learned counsel for the parties and perused the material available on record.

It is an admitted position in this case that the petitioner was working as Patwari since 28.06.1984. Upon complaint, a criminal case was registered against the petitioner in the year 1990 and he was convicted under the offence of Prevention of Corruption Act on 24.11.1988 by the Trial Court and on the basis of conviction, the petitioner was removed from his service on 11.01.1999. It is also not disputed that the petitioner was acquitted by the High Court on 23.08.2013 from all the charges and the petitioner was reinstated by order dated 06.05.2014, but the period for which the petitioner was out of service has been treated by the respondent authorities as ‘no work no pay’, against which the petitioner preferred a writ petition bearing WPS No.2548/2018 before this Court and this Court disposed of that petition with direction to the respondent authorities to reconsider the case of the petitioner and thereafter the respondent authorities passed the impugned order dated 19.06.2018.

In the previous round of litigation, this Court vide order dated 23.03.2018 passed in WPS No.2548/2018 observed in paras 6, 7, 8 & 9 as under:-

“6. On perusal of records, particularly the judgments cited by the counsel for the petitioner, the requirement of law was that after order of acquittal has been passed in criminal case, the case of the petitioner or a government employee has to be considered under Fundamental Rules 54. That, while considering the case of an employee under Fundamental Rules 54, a reasonable opportunity of hearing to the employee should be provided. The reason to provide an opportunity is that the order which may be passed under Fundamental Rules 54 may result in pecuniary loss to the government servant and therefore while taking a decision under Fundamental Rules 54, the consideration must be objective rather than subjective.

In the case of Gopal Krishna Naidu (Supra) the Supreme Court held that if an opportunity to show cause against the action proposed is not afforded, as admittedly it was not done in the present case, the order is required to be struck down as invalid on the ground of it being breach of principles of natural justice.

In view of the aforesaid factual matrix and the legal position and also considering the contents of order dated 06.05.2014 (Annexure P/1) wherein no discussion whatsoever has been made out by the authorities concerned so far as how that intervening period has to be treated and what sort of consequential relief the petitioner would be entitled for, the same is not sustainable, it deserves to be and is accordingly set aside.

The matter stands remitted back to the respondent No.3, who in turn, in the light of the discussions held in the preceding paragraphs shall reconsider the case of the petitioner keeping in view the provisions of Fundamental Rules 54 without being influenced by any of the observations, and thereafter shall pass a speaking order afresh within a period of three months from the date certified copy of this order is made available.”

It is clear from this order that this Court directed the respondent authorities to consider the representation of the petitioner in light of provisions of the Fundamental Rules, 54.

Sub rule (1), (2), (3), (6) & (7) of the Fundamental Rules, 54 is as under:-

“F.R.54. Pay and allowances on reinstatement (1) When a Government servant who has been dismissed, removed or compulsorily retired, is reinstated as a result of appeal or review or would have been so reinstated [but for his retirement on superannuation, while under suspension or not], the authority competent to order reinstatement shall consider and make a specific order

(a) regarding the pay and allowances to be paid to the Government servant for the period of his absence from duty including the period of suspension preceding his dismissal, removal or compulsory retirement, as the case may be; and

(b) whether or not the said period shall be treated as a period spent on duty.

(2) Where the authority competent to order re instatement is of the opinion that the Government servant who had been dismissed, removed or compulsorily retired has been fully exonerated, the Government servant shall, subject to the provisions of subrule (6), be paid full pay and allowances to which he would have been entitled, had he not been dismissed, removed or compulsorily retired or suspended prior to such dismissal, removal or compulsory retirement, as the case may be:

Provided that where such authority is of the opinion that the termination of the proceedings instituted against the Government servant had been delayed due to reasons directly attributable to the Government servant, it may, after giving him an opportunity to make his representation [within 60 days from the date on which the communication in this regard is served on him] and after considering the representation, if any, submitted by him, direct, for reasons to be recorded in writing, that the Government servant shall, subject to the provisions of subrule (7), be paid for the period of such delay, only such amount not being the whole of such pay and allowances as it may determine.

(3) In a case falling under subrule (2), the period of absence from duty including the period of suspension preceding dismissal, removal or compulsory retirement, as the case may be, shall be treated as a period spent on duty for all purposes.

(6) The payment of allowances under subrule (2) or subrule (4), shall be subject to all other conditions under which such allowances are admissible.

(7) The amount determined under the proviso to subrule (2) or under subrule (4), shall not be less than the subsistence allowance and other allowances admissible under rule 53.”

This Court in a similarly situated case vide order dated 09.07.2021 passed in WPS No.994/2010 observed in para 36 as under:-

“36. Coming to the facts of the instant case in light of aforesaid legal analysis, though the original petitioner has been honourably acquitted from criminal charges by this Court and it has been clearly stated by this Court while acquitting the petitioner that he is an honest officer, he is innocent and he has been trapped in criminal case by deceitful means, as such it is also established that he was honourably acquitted from criminal cases levelled against him and that amounts to “fully exoneration” within the meaning of subrule (2) of Rule 54 of the Fundamental Rules and therefore, by virtue of said Rules, the petitioner is entitled for full pay and allowances from 1.11.1994 to 31.1.2003 as the authority competent to order reinstatement did not say that the petitioner was responsible for delay in termination of the proceedings, as such, proviso to subrule (2) of Rule 54 of the Fundamental Rules would not be applicable, on the other hand, the authority competent to direct reinstatement while considering under sub rule (1) of Rule 54 held that on account of principle of 'No Work No Pay he is not entitled for full pay and allowances from 1.4.1994 to 31.1.2003, which the authority could not have directed in view of mandatory provisions contained in subrule (2) of Rule 54 of the Fundamental Rules. Two options were available to the authority competent to direct reinstatement on the petitioner's full exoneration from criminal charges either firstly to pay full pay and allowances in terms of subrule (2) of Rule 54 or secondly in case according to him proviso to subrule (2) of Rule 54 is applicable, then he would be entitled for amount not less than the subsistence allowance and other allowances admissible under Rule 53 and no third option of invoking principle of 'No Work No Pay' was available to the authority competent to direct reinstatement to the petitioner in teeth of subrule (2) of Rule 54 of the Fundamental Rules, as such, the State Government is absolutely unjustified in holding that the petitioner is not entitled for pay and allowances from 1.11.1994 to 31.1.2003 on the principle of 'NO Work No Pay', which is absolutely without jurisdiction and without authority of law and it is held that the petitioner is entitled for full pay and allowances as per subrule (2) of Rule 54 as it is not the case of the State Government that he was responsible for any delay in which proviso to subrule (2) of Rule 54 can be applied.”

In the present case also, it is clear that the petitioner was acquitted honorably from all the charges and he was reinstated in service, but the Competent Authority again passed the same order as ‘no work no pay’, which is absolutely illegal and without following the Fundamental Rules as well as the order passed by this Court earlier. The petitioner is entitled for full pay and allowances as per sub-rule (2) of the Fundamental Rules, as it is not the case of the State Government that he was responsible for any delay, in which proviso to sub-rule (2) of Fundamental Rules 54 can be applied.

Consequently, the impugned order dated 19.06.2018 (Annexure-P/1) is hereby set aside. The respondents are directed to grant full pay allowance to the petitioner for the period from 11.01.1999 to 06.05.2014 along with interest @ 6% per annum from the date of entitlement till the date of actual payment within a period of 3 months from the date of receipt of copy of this order.

The writ petition stands allowed.