State Bank of India and Another vs Mohammed Abdul Raheem

Ms. Chitra Venkataraman, J.—The respondents in the writ petition are on appeal before this Court as against the order of the learned single

Judge in W.P. (MD) No. 8079/2005 dated July 14, 2011, wherein, the writ petitioner/respondent herein sought for a writ of certiorarified

mandamus to quash the proceedings dated November 7, 2001 insofar as it related to the refusal to the grant of back-wages for the period from

the date of discharge till the date of reinstatement of the petitioner in service and to direct the Assistant General Manager (Region II),

Thiruchirappalli to pay back-wages for the period from June 7, 1999 to November 7, 2002. The facts which gave rise to the filing of the writ

petition are as follows:

The writ petitioner is working as Assistant (Accounts) in the State Bank of India at Main Branch, Thanjavur. In the matrimonial dispute between

the writ petitioner and the writ petitioner''s former wife, a criminal case was registered against the writ petitioner under the Dowry Prohibition Act

and charge-sheet was laid u/s 498A of the IPC and Section 4 of the Dowry Prohibition Act before the Additional Sessions-cum-Judicial

Magistrate Court, Ramanathapuram in C.C. No. 4 of 1996. By judgment dated November 3, 1997, the writ petitioner was convicted of the

offence u/s 498A of the IPC and he was sentenced to undergo six months simple imprisonment and in respect of the offence committed u/s 4 of

the Dowry Prohibition Act, he was sentenced to undergo six months simple imprisonment with a fine of Rs. 500/- with default stipulation.

Aggrieved by the said decision, the writ petitioner went on appeal before the Principal Sessions Court, Ramanathapuram in C. A. No. 10/2001.

By judgment dated February 22, 2002, the writ petitioner was acquitted by giving him the benefit of doubt.

It is seen from the documents placed (before this Court that immediately on the judgment of the trial Court, the writ petitioner was discharged

under letter dated June 7, 1999. A perusal of the letter shows that the discharge letter came in the wake of the conviction and sentence ordered by

the criminal Court involving moral turpitude; thus in terms of Section 10(1)(b)(i) of the Banking Regulation Act, 1949 read with Para 521(2)(b) of

Sastry Award, service of the writ petitioner was discharged forthwith.

Considering the fact that the appellate Court had set aside the order of conviction made by the Criminal Court, the writ petitioner made an

application on April 22, 2002 for reinstatement with effect from June 7, 1999 and for all back-wages and consequential promotions too. The

petitioner stated that the reinstatement without break of service be granted at the earliest.

By proceedings dated November 7, 2002, the appellants herein informed the writ petitioner/respondent in the writ appeal about the decision to

reinstate the petitioner in service with continuity of service but without back-wages.

On November 7, 2003, the writ petitioner once again addressed a letter to the Assistant General Manager, Tiruchirappalli mentioning that he

joined duty on November 7, 2002 and was working as Assistant (Accounts) at Thanjavur Branch and, though he was granted continuity of

service, back-wages have not been given. Referring to the Sastry Award, the writ petitioner contended that he be paid the back-wages. The said

request was reiterated on February 15, 2005 and August 16, 2005. The appellants herein, however, rejected his claim. Aggrieved by this, the writ

petitioner/the respondent herein approached this Court for quashing of the same and to give him back-wages.

On notice, the appellants herein filed the counter affidavit before this Court taking the stand that since the petitioner got himself involved in a

criminal case on account of his conduct, and the petitioner was out of service, he was not eligible to claim any back-wages.

In considering the said claim of the rival parties, learned single Judge pointed out that the denial of back-wages could be ordered in the cases

where on account of default of the employee, there was no service performed but, not in cases where the employee was not permitted to perform

his duty. Consequently, the action of the Management was held to be bad and the denial of back-wages would amount to punishing the employee

for no fault of his.

Referring to the reliance placed on the decision of a Division Bench of this Court in the Secretary, The Secretary, Vallalar Gurukulam Higher

Secondary School Vs. District Educational Officer and G. Anbarasan, , learned Judge pointed out that admittedly, the petitioner was not placed

under suspension in spite of registration of the case and he continued to work with the Bank till the date of conviction. On appeal against the

conviction, the sentence was suspended by the appellate Court. It was pointed out that in spite of the said suspension of sentence, the

Management, however, did not permit the writ petitioner to work. Thus, on acquittal by the Criminal Court, the petitioner was entitled to

reinstatement of service as well as back-wages payable to the writ petitioner.

Learned single Judge pointed out that the appellant''s reliance on the decision of the Apex Court in Shrimati Tarulata Shyam and Others Vs.

Commissioner of Income Tax, West Bengal, cannot have a direct application to the facts of the case. In the circumstances, the writ petition was

allowed, directing the appellants herein to grant back-wages for the period from the date of discharge till the date of reinstatement. Aggrieved by

this, the Management is on appeal before this Court.

Learned Counsel appearing for the appellants contended that the respondent was discharged from service on the ground of moral turpitude by

reason of the conviction for an offence u/s 498A IPC and Section 4 of the Dowry Prohibition Act. Hence the appellants contended that the

question of paying any back-wages during the period when he was discharged did not arise. Hence Learned Counsel submitted that the acquittal

order made by the appellate Court, however, would not confer any monetary benefits for the earlier period when he was not in service. Thus,

rightly, when the Management passed the order of reinstatement, it was without any monetary benefits for the interregnum period.

Learned Counsel for the appellants herein placed reliance on the decision of the Kerala High Court in Vincent Varghese v. State Bank of India

2000-I-LLJ-1268 as well as Allahabad High Court in Rajendra Prasad Pandey Vs. Allahabad High Court and another, , Udai Shankar Tiwari Vs.

District Inspector of Schools, Kanpur Nagar and others, and Ran Vijay Chandra Vs. State of U.P. and Others, , only to stress on the fact that

when the offence involved is one of moral turpitude, back-wages can be deprived. So, the question of the writ petitioner being considered for

back-wages did not arise.

Per contra, Learned Counsel for the writ petitioner/respondent in the writ appeal placed reliance on the Sastry Award and submitted that,

admittedly, the appellants herein did not take any disciplinary action for dismissing the respondent from service. It was only on the basis of the trial

Court''s judgment that the writ petitioner was discharged from service. A perusal of the judgment of the appellate Court, in any event, shows that it

was not just a case of acquittal giving him the benefit of doubt, but, on the other hand, going through the evidence, the appellate Court pointed out

that the allegations were merely an after-thought and were not true. Thus, the acquittal is more in the nature of honourable acquittal. In any event, in

the absence of any disciplinary proceedings taken by the appellants, there can be no denial of back-wages.

Learned Counsel for the respondent placed reliance on the decision of the Division Bench of this Court in the Secretary, Vallalar Gurukulam

Higher Secondary School, Vadalur, Cuddalore District Vs District Educational Officer, Cuddalore, Cuddalore District (supra), wherein, this Court

had taken the view that when no disciplinary proceedings were instituted against an employee charged with an offence and once a person is

acquitted in a criminal case, it has to be deemed that he never committed that offence and the judgment will operate retrospectively. Thus, when no

departmental proceedings are instituted against an employee on account of the criminal case, he is entitled for reinstatement along with back-

wages. The decision in Bank of India v. M.R. Natarajan 2007 (1) C.L.T 710 : LNIND 2007 MAD 2208 : 2008-II-LLJ-763 is also to the same

effect. Hence, Learned Counsel for the respondent pleads that the respondent be granted the relief of back-wages.

We have heard the learned the counsel for the appellants as well as the Learned Counsel for the respondent.

We agree with the contention of the Learned Counsel for the respondent in this writ appeal and thereby, we have no hesitation in confirming

the order passed by the learned single Judge.

A perusal of the decision in Secretary, Vallalar Gurukulam Higher Secondary School, Vadalur, Cuddalore District v. District Educational

Officer, Cuddalore, Cuddalore District (supra), relied on by the Learned Counsel for the respondent, shows that it related to the case of a staff in a

school against whom criminal proceedings were launched. this Court held that once a person is acquitted in a criminal proceedings, the said

judgment would operate retrospectively, unlike a legislation which normally operates prospectively. this Court pointed out in the case of a

delinquent officer who was implicated in a criminal case,; that when the misconduct is committed by an employee, the authorities have the option to

take two kinds of proceedings against him -firstly a criminal proceeding if he is accepted to have committed an offence and in addition, they can

also take departmental proceedings against him. If he is acquitted, the employer could yet punish him if he is found guilty in the departmental

proceedings. When once a person is acquitted in a criminal case and there being no other departmental proceeding against him for the said

misconduct, there being only one proceeding against him, it has to be deemed that he had not committed the offence. The order of the appellate

Court has to be taken to the original stage and the benefits have to be necessarily granted to the respondent while he was in service. Consequently,

the said employee was entitled to salary for the period of his unemployment apart from reinstatement.

The decision Bank of India v. M.R. Natarajan (supra), relied on by the respondent, cited supra, relates to a case of an employee of the State

Bank of India, who was convicted of the offence under the provisions of Prevention of Corruption Act. The Bank informed the delinquent staff that

though he would cease to be in service as on October 31, 1997, he would nevertheless be continued in service till the criminal case was concluded

and final order was passed in the criminal case. On appeal, the criminal case ended in acquittal. During the pendency of the appeal, the sentence

was suspended. When the Bank issued show cause notice as to why he should not be dismissed pursuant to conviction by the trial Court as per

the Banking Regulation Act, the employee filed a writ petition before this Court, challenging the notice as well as payment of subsistence

allowance. On an appeal filed by the Bank as against the order of the learned single Judge allowing the writ petition, this Court pointed out that

when the Bank had not shown any intention of initiating enquiry proceedings, it could not contend that suspension as per the original order dated

September 15, 1981, issued during the pendency of the criminal proceedings, would still continue. Under the circumstances, this Court held that

the employee was entitled to retirement benefits from the date of joining till the date of his retirement.

A reading of Paragraph 12 of the judgment shows that this Court held that in the absence of any disciplinary proceedings against the employee

for any misconduct or dereliction of duty and there being no intention of issuing any disciplinary proceedings at any point of time, the question of

denying benefits consequent on the acquittal ordered in the appeal could not be sustained. As rightly pointed out by the Learned Counsel for the

respondent herein, the situation herein is no different. In fact, he would submit that the present case is a shade better than all other cases. The

respondent''s acquittal by the appellate Court in a criminal proceedings is not one on the ground of granting the benefit of doubt. A perusal of the

criminal Court''s appeal judgment shows that on appreciation of the evidence of the complainant/wife P.W. I, the appellate Court held that there

was absolutely no material to show that at any point of time, the complainant complained about the respondent demanding dowry. Thus, on

appreciation of the entire evidence, learned Judge, in the Criminal Appeal, pointed out that even after notice was issued by the complainant/wife,

the couple lived together and that only during that time, the wife alleged that the respondent/husband herein demanded dowry. The appellate Court

pointed out this as an after-thought and created only for the purpose of the case alleged against the respondent.

In the circumstances, the appellate Court pointed out that the charges were not proved beyond reasonable doubt. In the decision D.

Mahadevan Vs. The Director General of Police, this Court held that where, after considering the evidence, the Court finds that the prosecution had

failed to prove the charges, the acquittal would amount to honourable acquittal. In the background of the facts found in this case, if we look at the

Sastry Award, particularly Paragraph 3(c), it discloses that where an employee is acquitted, it is open to the Management to proceed against him

departmentally under Clauses 11 and 12 relating to discharge.

Clause 2 of the Sastry Award defines ""offence"" to mean any offence involving moral turpitude for which an employee is liable to conviction and

sentence under any provision of law. There is no definition of the word ""moral turpitude"". All that Clause 2 says is that the expression ""offence

shall mean any offence involving moral turpitude for which an employee is liable to conviction and sentence under any provision of law. The word

has not been defined in the Indian Penal Code or anywhere else. In the decision Ran Vijay Chandra v. State of U.P. and Others (supra), relied on

by the Learned Counsel for the appellant, definition of moral turpitude, as been given in BLACK''S LAW DICTIONARY, is given as follows:

Moral turpitude.- An act of baseness, vileness, or depravity in the private and social duties which a man owes to his fellowmen, or to society in

general, contrary to the accepted and customary rule of right and duty between man and man.

Conduct contrary to justice, honesty, modesty, or good morals.

Referring to this the Allahabad High Court held in paragraph 9, as follows:

Different persons may have different views in regard to baseness, vileness or depravity in conduct of a man. One may take a narrow view and the

other may take a liberal view. The broad principle may be when the conduct of a man shocks the conscience of people in regard to action or

conduct of a man. If the law prohibits to do an act and it is violated, such violation may be with a deliberate intention or it may be under certain

circumstances which may not amount to ""moral turpitude"". It depends upon the facts of each case. It has been subject to discussion in various

decisions.

The said decision, in paragraph 12, also referred to the decision in D. Mahadevan Vs. The Director General of Police, laying down the

following three tests to find out whether the offence involved moral turpitude:

(1) Whether the act leading to a conviction was such as could shock the moral conscience of society in general.

(2) Whether the motive which led to the act was a base one, and

(3) Whether on account of the act having been committed, the perpetrator could be considered to be of a depraved character or a person who

was to be looked down upon by the society.

In Pawan Kumar Vs. State of Haryana and another, the Apex Court held that moral turpitude is an expression which is used in legal as well as

societal parlance and describes the conduct which is inherently base, vile, deprave or having any connection showing depravity. Killing a person,

per se, may not come within the periphery of ""moral turpitude"" but subjecting a woman to cruelty or killing her, for or in connection with demand of

dowry, would certainly be an offence involving moral turpitude.

Clause 3(c) of the Sastry Award shows that after enquiry, if the Management decides not to continue the delinquent officer in service, he could

be terminated from service with three months'' pay and allowances in lieu of notice. The said provision further states that the delinquent officer shall

be deemed to have been on duty during the period of suspension, entitled to full pay and allowances minus subsistence allowance he has drawn,

provided that he be acquitted by being given the benefit of doubt and he would be paid such portion of such pay and allowances as the

Management may deem fit and proper. The period of his absence shall not be treated as a period spent on duty, unless the Management so

directed. Sub Clause (b) of Clause 3 states that where a person is convicted, he would be dismissed with effect from the date of conviction or be

given any lesser form of punishment, as provided for in Clause 6. Sub Clause (d) states that where, on an appeal filed against the conviction, the

delinquent officer is acquitted and in case he had already been dealt with as per Clause 3(c) and applies to the Management for re-consideration of

his case, the Management should review his case and either reinstate him or proceed against him as per Clauses 11 and 12 relating to discharge

and the provisions relating to pay and allowances in the period of suspension would apply. However, if the Management, on enquiry, decides not

to continue him in service, the employee shall be liable for termination with three months'' pay and allowances in lieu of notice, as stated in Clause

3(c).

Clause 5 defines ""gross misconduct"". There are as many as sub clauses (a) to (u). Sub clause (u) includes under the head of misconduct, the

giving or taking or abetting the giving or taking of dowry or demanding any dowry directly or indirectly from the parents or guardians of a bride or

bridegroom. For the purpose of the above clause, the meaning of ""dowry"" as given under the Dowry Prohibition Act 1961, is adopted. Clause 6

states that a person found guilty of gross misconduct may be dismissed without notice or removed from service or compulsorily retired or

discharged from service or given reduction of rank, stoppage of increment, withdrawal of special pay given, censure or warning, or fined.

Clause 7 defines ""minor misconduct"" and the punishment thereon. Clause 11 states that where it is decided to take any disciplinary action

against an employee, such decision shall be communicated to him within three days thereon. Clause 12 lays down the procedure on disciplinary

action and pending such enquiry or initiation of such enquiry, an employee could be suspended. Thus, a reading of the clauses referred to above

shows that in the case of proceedings under the Dowry Prohibition Act, the same is treated as a ""gross misconduct"". Going by Clause 3, the

employee could be dismissed with effect from the date of conviction or he may be given a lesser form of punishment, as given under Clause 6. In

the case of an acquittal, the procedure under Clauses 11 and 12 may be invoked, with the discretion of the Management. Thus, going by the above

scheme in the award, admittedly, no proceedings were taken departmentally at any point of time during the trial, to keep the appellant under

suspension, or for that matter, to hold an enquiry thereafter on acquittal. The order of discharge passed by the appellants herein shows that the

respondent was terminated only on account of the criminal Court''s decision and at that stage, the appeal was pending before the appellate Court.

In the circumstances, looking at the facts of the case, particularly with reference to the acquittal order of the appellate Court in the criminal case

lodged against the writ petitioner/the respondent herein and on the admitted fact that there was no departmental proceedings at any point of time

initiated, we do not find any justification to deny the full pay and allowances that are to be paid to the writ petitioner herein, as has been ordered by

the learned single Judge. In the circumstances, we have no hesitation in confirming the order of the learned single Judge allowing the Writ Petition.

As far as reliance placed on the decisions of the Allahabad High Court and Kerala High Court is concerned, the decisions therein have to be

seen in the context of the provisions therein. Thus applying the decisions relied on by the respondent the Secretary, Vallalar Gurukulam Higher

Secondary School, Vadalur, Cuddalore District Vs District Educational Officer, Cuddalore, Cuddalore District (supra), and in Bank of India v.

M.R. Natarajan (supra) to the facts of the case herein, when the initial order of discharge was based on the order of conviction and subsequently

on the acquittal, the respondent was reinstated under order dated November 7, 2001, rightly, learned single Judge granted the relief as sought for

by the respondent. Applying the decisions of this Court, we have no hesitation in dismissing the writ appeal, thereby confirming the order of the

learned single Judge.

In the light of the above aspect, we reject the reliance placed on the decision cited by the Learned Counsel for the appellants. In the result, the

writ appeal is dismissed and the order of the learned single Judge stands confirmed. No costs. Connected Miscellaneous Petition is closed.