Shambhu Dayal Rawat vs State of M.P. and others

R. K. Gupta, J.

The present petition is filed by the petitioner seeking modification of the order dated 15-11-1996 (Annexure A/9). By this order, the respondents have directed to reinstate the petitioner but for the intervening period i.e. 7-3-1988 to 21-3-1995 the petitioner has not been granted any backwages by applying the principle of "No work No wages".

The facts leading to the present case are that petitioner was employed on the post of Clerk Grade II and was posted in the office of Collectorate, Tikamgarh. He was arrested for an offence punishable u/s 409 of Indian Penal Code before the Judicial Magistrate, First Class, Niwadi. The said Court passed an order of conviction on 30-3-1984 and sentenced him four months imprisonment along with fine of Rs. 100/-.

The petitioner preferred an appeal against the said order of conviction in the Sessions Court, Tikamgarh and the said appeal was registered as Criminal Appeal No. 25/84. The aforesaid criminal appeal was dismissed by the Sessions Court by an order dated 17-9-1987 and thus the order of conviction and sentence passed by the Judicial Magistrate, Niwadi has been confirmed.

On the basis of the same, respondents passed an order of termination dated 7-3-1988. The order has been placed on record as Annexure A/2 to the petition. It appears that a revision was preferred to this Court against the order passed by the Sessions Court and the same was also dismissed.

The petitioner preferred a criminal appeal before Supreme Court which was registered as Criminal Appeal No. 230 of 1992. The judgment passed by the Supreme Court is placed on record as Annexure A/3 to the petition. The Supreme Court held that no offence against the petitioner punishable u/s 409 of Indian Penal Code is made out because the money which was collected by the petitioner was not while discharging his official duties but the money was collected by the petitioner because of his own arrangement made by the employee for the purposes of contributing a sum towards the Central Account of the Chief Minister''s Relief Fund and on this basis the Supreme Court held that offence u/s 406 of Indian Penal Code is made out and not offence punishable u/s 409 of Indian Penal Code. The Supreme Court further held that in the aforesaid case since the amount was involved is Rs. 175/- only and the offence punishable u/s 406 of Indian Penal Code is compoundable therefore, the Supreme Court directed for compounding of the offence resulting into acquittal of the petitioner.

After when the judgment was passed by the Apex Court, the petitioner submitted a representation for his reinstatement. The respondents on the representation of the petitioner passed an order on 15-11-1996 (Annexure A/9) directing for reinstatement of the petitioner and it was further directed that for the total intervening period when the petitioner remained out of employment i.e. from 7-3-1988 to 20-3-1995, the petitioner shall not be entitled for any backwages and accordingly he has been deprived of the backwages.

Learned counsel appearing on behalf of the petitioner submitted that after the acquittal of the petitioner, the State Govt, was not justified in applying the principle of "No work No wages" to deprive the petitioner of the backwages for the intervening period. It is contended that it is a case where the petitioner has been acquitted by the Apex Court which is clear from the judgment passed by the Apex Court, Annexure P/3 and accordingly it was submitted that petitioner is entitled for the full salary for the intervening period.

On behalf of the respondents, it is submitted that the State Gov''t, has rightly applied the principle of "No work No wages". It is submitted that even assuming that petitioner initially was convicted for an offence punishable u/s 409 of Indian Penal Code and ultimately the Apex Court converted the said offence u/s 406 of Indian Penal Code, it is not a case where the Apex Court has completely exonerated the petitioner from the charges holding that petitioner was not guilty of any offence but before the Apex Court, the offence was compounded and the acquittal of the petitioner was the result of compounding of an offence and not otherwise. On this basis, it is submitted that even though there had been acquittal of the petitioner for an offence punishable u/s 409 of Indian Penal Code yet there would be no justification to allow backwages in favour of such an employee.

The rival submissions made by the parties are considered.

In this reference, it is seen that the judgment of the Apex Court in Ranchhodji Chaturji Thakore Vs. Superintendent Engineer, Gujarat Electricity Board, Himmatnagar, (Gujarat) and another, and another is relevant and para 3 of the aforesaid judgment is relevant which is quoted as under :-

The reinstatement of the petitioner into the service has already been ordered by the High Court. The only question is : Whether he is entitled to backwages? It was his conduct of involving himself in the crime that was taken into account for his not being in service of the respondent. Consequent upon his acquittal, he is entitled to reinstatement for the reason that his service was terminated on the basis of the conviction by operation of proviso to the statutory rules applicable to the situation. The question of backwages would be considered only if the respondents have taken action by way of disciplinary proceedings and the action was found to be unsustainable in law and he was unlawfully prevented from discharging the duties. In that context, his conduct becomes relevant. Each case requires to be considered in his own backdrops. In this case, since the petitioner had involved himself in a crime, though he was later acquitted, he had disabled himself from rendering the service on account of conviction and incarceration in jail. Under these circumstances, the petitioner is not entitled to payment of backwages. The learned single Judge and the Division Bench have not committed any error of law warranting interference.

As it is evident from the judgment passed by the Apex Court on which the reliance is placed by the respondents, it is clear that even though an incumbent has been acquitted of the charges yet it is to be seen the said conduct lias resulted into the prosecution. The Apex Court further held that if an incumbent had involved himself in a crime, though he was later acquitted, he had disabled himself from rendering the service on account of conviction and incarceration in jail. On these circumstances, the Apex Court has not granted the backwages.

If the ratio of the Apex Court judgment is applied to the present case then it is seen that though initially the petitioner was convicted for an offence punishable u/s 409 of Indian Penal Code, subsequently before the Supreme Court the offence was converted into section 406 of Indian Penal Code, since the offence was compounded, therefore, it has resulted into the acquittal of the petitioner. The conduct in that case if it is to be assessed then according to the Supreme Court, the amount was only involved of Rs. 175/- and was compoundable, hence the Supreme Court granted permission to compound the offence though it is an acquittal but the acquittal is on a technical ground. It has to be treated as an acquittal as the Supreme Court has also directed that petitioner has been acquitted of the charges u/s 406 of Indian Penal Code but the said acquittal was recorded as the offence was compoundable.

Keeping in view the aforesaid facts and circumstances, it is very difficult to hold that petitioner would still be entitled for any backwages on the factual background of the case for which he was prosecuted.

With profit, another judgment passed by the Apex Court as reported in Union of India (UOI) and Others Vs. Jaipal Singh, is also relevant. This is also a case wherein the judgment passed by the Apex Court in Ranchhodji (supra) has been relied upon and the Supreme Court has considered two different eventualities. Firstly, when there had been prosecution of an incumbent at the behest of the employer and if it has resulted into acquittal and the second eventuality which has been considered by the Apex Court is, 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. While applying the said principle, the Supreme Court in the said judgment has denied the backwages for the intervening period to an employee after his initial conviction was terminated and was directed to be reinstated after his final acquittal. With profit, I may refer to para 4 of the said judgment which reads as under :-

On a careful consideration of the matter and the materials on record, including the judgment and orders brought to our notice, we are of the view that it is well accepted that an order rejecting a SLP at the threshold without detailed reasons therefor does not constitute any declaration of law by this Court or constitute a binding precedent. Per contra, the decision relied upon by the appellant is one on merits and for reasons specifically recorded therefor it operates as a binding precedent as well. On going through the same, we are in respectful agreement with the view taken in Ranchhodji. If prosecution, which ultimately resulted in acquittal of the person concerned was at the behest of or by department itself, perhaps different considerations 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. Consequently, the reasons given in the decision relied upon, for the appellants are not only convincing but are in consonance with reasonableness as well. Though exception taken to that part of the order directing re-instatement cannot be sustained and the respondent has to be re-instated in service, for the reason that the earlier discharge was on account of those criminal proceedings and conviction only, the appellants are well within their rights to deny backwages to the respondent for the period he was not 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. The High Court in our view, committed a grave error, in allowing backwages also, without adverting to all such relevant aspects and considerations. Consequently, the order of the High Court insofar as it directed payment of backwages is liable to be and is hereby set aside.

A bare reading of the judgment passed by the Apex Court placed on record as Annexure A/3 also indicates that collection of money was voluntary and non-official and the money was paid by the respective employees as per the circulation for its deposit to the Chief Minister''s Relief Fund and, therefore, such a conduct of the petitioner could only be said to be a conduct while discharging his duties as a citizen and, therefore, the Supreme Court found that offence punishable u/s 406 of Indian Penal Code is made out and directed for compounding of the offence.

On the basis of the same, if para 4 of the judgment passed in case of Union Bank of India (supra) is seen then it is clear that there is justification for denying the backwages to the petitioner for the period he was not in service as the State Govt, being a employer could not avail of the services of the petitioner employee.

In this reference, the judgment passed by the Apex Court in State of U.P. and another Vs. Ved Pal Singh and another, is also relevant. This was a case where the backwages were demanded by an employee whose services were also terminated because of conviction and the conviction subsequently was set aside resulting into the acquittal. The employee was reinstated in service and was claiming backwages. The ratio of the aforesaid judgment of para 4 is relevant which reads as under :-

4..................... Resultantly a public servant on re-instatement claims consequential benefits including backwages. On many an occasion, public servant avoids the detection of corruption or by skillful management proof of commission of corruption would be wanting. But his conduct gains notoriety in service and among the public in :hat behalf and payment of backwages would provide an impetus and put a premium on corruption. The society has to pay the price for corrupt officers from public exchequer. Therefore, when the Court directs payment of backwages on re-instatement, 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. The confidential reports of the officer prior to initiation of the prosecution do furnish evidence of conduct of the public servant. It is the duty of the officer to place his material and of the Government to place all the necessary records in that behalf before the Court/tribunal for consideration and it would be for the Court/tribunal to consider and decide the matter ........................................... We have confined to the question of payment of backwages with an intention that on reinstatement the appellant would reform himself purging from the proclivity of corrupt practices and prove himself to be a useful public servant to himself, to the family and to the society. In the light of the confidential reports indicating doubtful integrity, we are of the view that it is not expedient to direct payment of backwages, though he was acquitted by the criminal Court may be on technical grounds or on merits, he is not entitled to backwages. As stated earlier the circumstances of the case and conduct of the appellant do furnish justification in denying him the backwages lest it would be a premium on proclivity for corruption.

On the basis of the same, I am of the view that the denial of backwages by the respondent State Govt, by passing an order Annexure A/9 cannot be said to be either arbitrary or even to hold that petitioner was entitled for the backwages in view of the law laid down by the Apex Court as aforesaid.

In view of the aforesaid, no case is made out for interference and the petition stands dismissed.