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The Indian Penal Code, 1860
Article 311 in The Constitution Of India 1949
Reserve Bank Of India vs Bhopal Singh Panchal on 3 November, 1993
Rama Kant Pandey vs Union Of India on 5 February, 1993
Section 302 in The Indian Penal Code, 1860

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Madhya Pradesh High Court
Munnalal Mishra vs Union Of India (Uoi) And Ors. on 4 May, 2005
Equivalent citations: 2005 (3) MPHT 125
Author: R Raveendran
Bench: R Raveendran, S Kemkar

ORDER

R.V. Raveendran, C.J.

1. The petitioner was working as a Khalasi in the Central Railway. He was arrested in a criminal case under Sections 302, 147, 148 and 149 of the IPC in the year 1991, as a consequence of which, he was kept under suspension by order dated 19-2-1991. After trial, the Additional Sessions Judge, Maihar, District Satna, convicted him on 9-10-1993 and he was sentenced to undergo life imprisonment. As a consequence of such conviction and sentence, the petitioner was dismissed from service on 9-3-1995. Such dismissal was not in pursuance of any disciplinary proceedings by holding an inquiry but on the basis of the special procedure which enabled the employer to dismiss an employee on the ground of conduct which led to his conviction on a criminal charge.

2. The petitioner was being paid subsistence allowance from the date of suspension to the date of his dismissal from service (19-2-1991 to 8-3-1995). The subsistence allowance was stopped with effect from the date of dismissal. The petitioner challenged his conviction in Criminal Appeal No. 1004/1993. This Court by judgment dated 31-8-1999 acquitted him by giving benefit of doubt. Thereafter, the petitioner gave a representation dated 4-10-1999 for reinstatement in view of his acquittal, the said request was rejected on 3-8-2000. Feeling aggrieved, the petitioner approached the Central Administrative Tribunal, Jabalpur Bench, in O.A No. 1139/2000. During the pendency of the said application, the respondents reconsidered the matter and reinstated the petitioner into service by order dated 4-10-2001. In view of it, O.A. No. 1139/2000 was closed as having become infructuous by order dated 18th March, 2002.

3. Thereafter, the petitioner made a representations dated 24-5-2002 and 10-6-2002 for treating the period between 9-3-1995 and 4-10-2001 as period in service and for payment of part pay and allowances under F.R. 54 (7).

The said request was rejected by communication dated 19-6-2002 wherein the period from 19-2-1991 to 8-3-1995 was treated as period during which he was entitled to subsistence allowance, and the period from 9-3-1995 to 4-10-2001 was treated as dies-non. The said order treating the period 9-3-1995 to 4-10-2001 as 'dies-non' was challenged by the petitioner in O.A. No. 606/2002. The Tribunal dismissed the petition by order dated 1-10-2002 holding that as the petitioner did not do any work during that period and had absented for reasons of his own involvement in an incident for which the employer was not responsible, the employer can not be saddled with the liability to pay him his salary and allowances for such period. The Tribunal followed the decision of the Supreme Court in Management of Reserve Bank of India v. Bhopal Singh Panchal, AIR 1994 SC 552. The said order of the Tribunal is challenged in this petition.

4. The petitioner strongly relied on Fundamental Rule 54 and a decision of learned Single Judge of Delhi High Court in Mohan Lal v. Union of India, 1982 (1) SLR 573 and a decision of the Central Administrative Tribunal in Rama Nand v. Union of India, 2003(1) ATJ 378.

5. F.R. 54 of Fundamental Rules corresponds to Rule 1342 of the Indian Railway Establishment Code Vol. II ('Railway Code' for short). As we are concerned with a Railway servant, we will refer to the relevant para of the Railway Code. Sub-rules (1), (2), (3), (4) and (7) of Rule 1343 of the Railway Code [corresponding to Sub-rules (1) to (4) and (7) of Fundamental Rule 54] which are relevant are extracted below:--

F.R. 54. (1) When a railway 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 preceding the dismissal, removal or compulsory retirement, the authority competent to order reinstatement shall consider and make a specific order--

(a) regarding the pay and allowances to be paid to the railway 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 reinstatement is of opinion that the Railway servant who had been dismissed, removed or compulsorily retired has been fully exonerated, the Railway servant shall, subject to the provisions of Sub-rule (6), be paid the 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 opinion that the termination of the proceedings instituted against the railway servant had been delayed due to reasons directly attributable to the Government servant, it may, after giving him an opportunity to make his representation and after considering the representation, if any, submitted by him, direct, for reasons to be recorded in writing, that the railway servant shall, subject to the provisions of Sub-rule (7), be paid for the period of such delay, only such amount of such pay and allowances as it may determine.

(3) In a case falling under Sub-rule (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.

(4) In cases other than those covered by Sub-rule (2) (including cases where the order of dismissal, removal or compulsory retirement from service is set aside by the appellate or reviewing authority solely on the ground of non-compliance with the requirements of Clause (2) of Article 311 of the Constitution and no further inquiry is proposed to be held) the railway servant shall, subject to the provisions of Sub-rules (6) and (7), be paid such amount 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, as the Competent Authority may determine, after giving notice to the railway servant of the quantum proposed and after considering the representation, if any, submitted by him in that connection within such period which in no case shall exceed sixty days from the date on which the notice has been served as may be specified in the notice :

Provided that any payment under this sub-rule to a railway servant [other than a railway servant who is governed by the provisions of the Payment of Wages Act, 1936 (4 of 1936)], shall be restricted to a period of three years immediately preceding the date on which orders for reinstatement of such railway servant are passed by the Appellate Authority or reviewing authority or immediately preceding the date of retirement on superannuation of such railway servant, as the case may be.

(7) The amount determined under the proviso to Sub-rule (2) or under Sub-rule (4) shall not be less than the subsistence allowance and other allowances admissible under Rule 1342 (F.R. 53).

6. In Mohan Lal (supra), Delhi High Court considered a case where a Government servant was kept under suspension on 20-7-1965 in view of a criminal case against him. When he was acquitted in the criminal case, he was taken back to duty on 31-7-1970. The Government servant requested that the period of suspension should be treated as period spent on duty. The said request was rejected and the said period was held to be period 'not spent on duty' under F.R. 54 (3) and his request for full pay and allowance for the said period was also rejected. The Delhi High Court interfered with the order holding that F.R. 54 was not applicable to cases where a Government servant was suspended in view of the pending criminal case, and it was applicable only to the case of reinstatement (on revocation of the suspension order) where an order of dismissal, removal or compulsory retirement passed in departmental proceedings is set aside. As there was no provisions of law whereby a Government servant could be denied the benefit of 'duty' and full pay where such a servant is suspended due to the pendency of a criminal case in which he is acquitted, the Court directed that the petitioner therein be treated as on duty for the period of suspension. In that context, the Delhi High Court made the following observation :--

"It is a mandatory requirement of F.R. 54 (3) that period spent on suspension should be treated as a period spent on duty for all purposes when a delinquent servant is fully exonerated and his order of dismissal, removal or compulsory retirement is set aside. On plain reading, F.R. 54 (3) is not applicable to the present case. The term "fully exonerated" is not defined or explained in the Fundamental Rules. Fundamental Rules 54 (4) throws some light on the concept of full exoneration. The said rule provides that if a Government servant is exonerated for non-compliance with requirements or Clause (2) of Article 311 of the Constitution, the Government mentioned therein, to pay an amount smaller than the full pay. The spirit of the provisions appears to be that if a delinquent servant is exonerated merely for non-compliance of the technical procedural Rules and is not exonerated on merits, he is not entitled to full pay. Even assuming that the petitioner was acquitted on benefit of doubt, it can not be said that he is acquitted for non-compliance with the technical Rules of procedure. Indeed, in criminal law an acquittal on benefit of doubt is a complete acquittal on merits. Reasoning of the D.I.G. is contrary to law. The State did not prefer an appeal against the order of acquittal by the Magistrate. Therefore, the judgment of acquittal has become final. It means that the acquittal on merits has become final. If it was a mere case of a doubt according to the strict requirement of rules in a criminal trial, the petitioner could have been proceeded against departmentally. Technical rules of evidence are not applicable to departmental proceedings. The petitioner was charged under Section 294 of the IPC. Indecent behaviour with a woman is certainly a conduct unbecoming of a Government servant. But it appears that the respondents were convinced that there was no sufficient evidence to hold that the conduct of the petitioner was unbecoming of a Government servant. By inference one can reach this conclusion, as no departmental proceeding was held against the petitioner. The impugned order was passed by the D.S.P. within four months of his acquittal. The impugned order can not be justified under F.R. 54(1) (2) (3) or (4)."

7. Following the said judgment of the Delhi High Court, the Tribunal in the case of Rama Nand (supra) held that an acquittal by giving benefit of doubt is a complete acquittal on merits and conviction is obliterated on acquittal and consequently any conduct leading to the conviction was also obliterated and could not be considered in any manner to the detriment of the employee; and that therefore the employer had to treat the employee as deemed to have been reinstated from the date of his dismissal and accord him consequential financial and other benefits.

8. We find that the decision of Delhi High Court was prior to the insertion of F.R. 54-A and 54-B and related to a case of suspension only. The decision is not therefore of any assistance. Further, we have carefully considered the decision of the learned Single Judge of the Delhi High Court in Mohan Lal and the decision of Central Administrative Tribunal in Rama Nand, holding that an 'acquittal on benefit of doubt' as a 'complete acquittal on merits' amounts to 'full exoneration'. We respectfully disagree. 'Acquittal by giving benefit of doubt' is not 'honourable and complete exoneration'. While acquittal by giving benefit of doubt does not take away the right to institute or continue the departmental inquiry, a honourable or complete exoneration will come in the way of initiation or continuation of the domestic inquiry [Vide R.R. Kapur v. Union of India, AIR 1964 SC 787 and Corporation of Nagpur v. Ramachandra G. Modak, AIR 1984 SC 626 and State of Andhra Pradesh v. K Allabaksh, (2000) 10 SCC 177].

9. The position with reference to F.R. 54, 54-A and 54-B (corresponding to the Rules 1343, 1344 and 1345 of the Railway Code) may be summarised thus:--

(i) When a Government servant (or Railway servant) is subject to a disciplinary proceedings and inquiry and as a consequence is dismissed, removed or compulsorily retired and such order of termination is subsequently reversed or modified by the Appellate Authority or Reviewing Authority, the principles in F.R. 54(Rule 1343 of Railway Code) would apply in so far as pay and allowance for the period between the date of suspension to the date of termination and the period between the termination till the date of reinstatement.

(ii) If the order of dismissal, compulsory retirement or removal of the Government (or Railway) servant in pursuance of the disciplinary proceedings is set aside, not by an Appellate or Reviewing Authority under the Rules, but by Court of law, then the consequences would be governed by Fundamental Rule 54-A (Rule 1344 of Railway Code).

(iii) When a Government (or Railway) servant who has been suspended is reinstated, then the principles in F.R. 54-B (Rule 1345 of the Railway Code) will apply.

10. But when a Government (or Railway) servant is dismissed or removed or compulsorily retired, not in pursuance or any disciplinary proceedings, but without inquiry on the ground of conviction in a criminal case, then F.R. 54, 54-A and 54-B (or corresponding Rules 1343, 1344 and 1345 of Railway Code) would not apply. As a consequence, we will have to fall back on the general principles and Fundamental Rule No. 17 (1) which provides that no work will mean no pay. Therefore, the Government (or Railway) servant will not be entitled to any pay for the period when he was not in service. He will be entitled to be reinstated from the date of acquittal. If he is not reinstated on acquittal, he will be entitled to pay and allowances from the date of acquittal. This position is made clear by the Supreme Court in several decisions.

10.1. In Ranchhodji Chaturji Thakore v. Superintendent Engineer, Gujarat Electricity Board, Himmatnagar, (1996) 11 SCC 603, the Supreme Court considered a case of an employee dismissed from service on account of his conviction by a Criminal Court for his involvement in an offence under Section 302/34, IPC. Subsequently the employee was acquitted and as a consequence reinstated. The Supreme Court considered whether back wages should be paid to the employee for the period between the date of dismissal and the date of reinstatement. The Supreme Court held thus :--

"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 back wages. 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 back wages 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 its own backdrop. 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 back wages."

10.2. The question again came up for consideration in Union of India v. Jaipal Singh, (2004) 1 SCC 121. The Supreme Court after expressing agreement with the view in Ranchhodji, observed thus :--

"...If prosecution, which ultimately resulted in acquittal of the person concerned was at the behest 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 can not 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.... Though exception taken to that part of the order directing reinstatement can not be sustained and the respondent has to be reinstated in service, for the reason that earlier discharge was on account of those criminal proceedings and conviction only, the appellants are well within their rights to deny back wages to the respondent for the period he was not in service. The appellants can not 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 back wages also, without adverting to all such relevant aspects of considerations. Consequently, the order of the High Court in so far as it directed payment of back wages are liable to be and is hereby set aside.

The respondent will be entitled to back wages from the date of acquittal and except for the purpose of denying the respondent actual payment of back wages, that period also will be counted as period of service, without any break."

10.3. In the Management of Reserve Bank of India v. Bhopal Singh Panchal (AIR 1994 SC 552), the Supreme Court considered a provision in the service regulation which provided that an employee who is absent from duty without any authority shall not be entitled to any pay and allowance during the period of such absence (similar to F.R. 17) and observed thus :--

"It is only if such employee is acquitted of all blame and is treated by the Competent Authority as being on duty during the period of suspension that such employee is entitled to full pay and allowances for the said period. In other words, the Regulations vest the power exclusively in the Bank to treat the period of such suspension on duty or on leave or otherwise. The power thus vested can not be validly challenged. During this period, the employee renders no work. He is absent for reasons of his own involvement in the misconduct and the Bank is in no way responsible for keeping him away from his duties. The Bank, therefore, can not be saddled with the liability to pay him his salary and allowances for the period. That will be against the principle of 'no work, no pay' and positively inequitable to those who have to work and earn their pay."

11. Petitioner has not worked between 9-3-1995 to 4-10-2001. The dismissal was on account of conviction in criminal case. Applying the principles laid down by the Supreme Court, the contention of the petitioner that he is entitled to pay and allowances between the date of dismissal and the date of reinstatement, is liable to be rejected. However, the impugned order holding the period between the date of dismissal and the date of reinstatement shall be treated as dies-non, can not be upheld, as it is opposed to the decision of the Supreme Court in Jaipal Singh's case (supra). On acquittal, the petitioner was entitled to be reinstated in service and the period between the date of dismissal and the date of acquittal/reinstatement has to be counted as period of service, without any break. But the petitioner will not be entitled to claim pay and allowances from the date of dismissal (8-3-1995) to date of acquittal (31-8-1999). In this case, the petitioner sought reinstatement on account of the acquittal on 4-10-1999 and that was untenably rejected first and later accepted and reinstated on 4-10-2001. The petitioner will be entitled to pay or allowances with effect from 1-9-1999, though he was reinstated only on 4-10-2001.

12. The petition is, therefore, allowed in part as follows :--

(i) The petitioner will be entitled to continuity of service in respect of the period between the date of dismissal and date of reinstatement. The order directing the same be treated as 'dies-non' is quashed.

(ii) The petitioner will be entitled to back wages only from 1-9-1999 and will not be entitled to any pay or allowances for the period 8-3-1995 (date of dismissal) to 31-8-1999 (date of acquittal).

(iii) Parties to bear their respective costs.