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CASE NO.: Appeal (civil)  4400 of 2005

PETITIONER: Banshi Dhar                                                              

RESPONDENT: State of Rajasthan and Anr.                                      

DATE OF JUDGMENT: 31/10/2006

BENCH: S.B. Sinha & Markandey Katju

JUDGMENT: J U D G M E N T  

S.B. SINHA,  J :

       Appellant was a Patwari working at village Minda in the year 1976.   On an allegation that he had sought illegal gratification, on or about  13.7.1976, a complaint was lodged in the office of Deputy Superintendent of  Police, Anti-Corruption, Jaipur (Rural) that the appellant had asked for  illegal gratification.  A raiding party laid a trap on the said date and he was  found to have accepted illegal gratification.  Pursuant thereto he was  prosecuted for alleged commission of an offence under Section 5(1)(d) of  the Prevention of Corruption Act read with Section 161 of the Indian Penal  Code.  He was placed under suspension.  He was convicted under Section  5(1)(d) of the Prevention of Corruption Act read with Section 161 of the  Indian Penal Code by reason of a judgment dated 25.02.1985 passed by the  Special Judge (A.C.D.) in criminal case No. 17 of 1979.  He was dismissed  from service in terms of the said judgment of conviction by an order dated  3.10.1987.   

       The appellant preferred an appeal against the said judgment of  conviction and sentence and by reason of a judgment and order dated  16.01.2001, the said appeal was allowed.  The appellant, thus, stood  acquitted.   

       In the meanwhile, i.e., in the year 1998, the appellant reached his age  of superannuation.  Having been acquitted in the criminal proceeding, he  filed a writ petition before the High Court of Rajasthan which was marked as  SB Civil Writ Petition No. 3111 of 2002.  By an order dated 19.02.2003, a  learned Single Judge of the High Court directed that in the event the  appellant files a representation before the competent officer with regard to  pension, the same may be considered within a period of three months  therefrom.  An appeal preferred thereagainst was dismissed by reason of the  impugned order passed by the Division Bench.

       Before we advert to the contentions raised by the appellant  questioning the correctness or otherwise of the judgment of the learned  Single Judge as also the Division Bench of the High Court denying him back  wages, we may notice that pursuant to or in furtherance of the said judgment  dated 19.02.2003, he filed a representation before the Collector and the said  authority by an order dated 25.11.2004 directed:

"The first appointment of Sh. Vanshidhar was  made on 22.10.60 in the Office of Tehsildar,  Nagore and on 3.10.87, he was dismissed from his  service.  Accordingly, the service tenure of Sh.  Vanshidhar comes to 26 years, 11 months and 13  days.  This service tenure comes within the

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pensionable service category.

       Therefore, while allowing the representation  dated 6.8.04 submitted by Sh. Vanshidhar, Ex.  Patwari, I think it proper to allow the pension  benefit to him under the provisions of Rajasthan  Pension Rule, 1996.

       Therefore, in the light of aforesaid all facts  and circumstances, the pensionary benefit of Sh.  Vanshidhar, Ex. Patwari is hereby allowed and it is  directed that in compliance of the Circular No. F  10/35/Vitta/Niyam 96/R.S.R. 2/03 dated 04.02.03  of the Finance Department the case shall be  forwarded to the Finance Department for necessary  action."

                Mr. K.S. Bhati, learned counsel appearing on behalf of the appellant,  submitted that it being not a case where he had remained in custody for  alleged commission of an office which prevented him from attending the  duties, he could not have denied back wages.  It was urged that the decision  of this Court in Ranchhodji Chaturji Thakore v. Superintendent Engineer,  Gujarat Electricity Board, Himmatnagar (Gujarat) and Another [(1996) 11  SCC 603] was wrongly applied by the High Court as the appellant therein  was convicted for an offence under Section 302 read with Section 34 of the  Indian Penal Code. In Ranchhodji Chaturji Thakore (supra) this Court  opined:

"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. The learned  Single Judge and the Division Bench have not  committed any error of law warranting  interference."

       It was contended that the decision of this Court following the said  dicta in Union of India and Others v. Jaipal Singh [(2004) 1 SCC 121] and  Baldev Singh v. Union of India and Others [(2005) 8 SCC 767] being based  on the same reasonings, must also be held to be not applicable in the instant  case.

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         The appellant had all along remained under suspension for eleven  years.  He undoubtedly received subsistence allowance during the said  period.

       It may be true that the reason for long pendency of the trial or the  criminal appeal filed by him may not be attributed to his acts of omission  and commission but the fact remains that the entire period between  13.7.1976 and the date when he reached his age of superannuation he did not  work.  He was placed under order of suspension validly from 1976 to  2.10.1987.  Legality of the order of dismissal on the basis of the judgment of  conviction and sentence dated 25.2.1985 has also not been questioned.  It is  true that his services were dispensed with as he had been convicted in a  criminal case involving grave misconduct.  On his acquittal, he was to be  reinstated in service.  He has been directed to be paid his pensionary  benefits.  The entire period during which he remained under suspension,  thus, would be considered for calculating his pensionary benefits.   Continuity of his service has also not been denied to him.  The only question  which arises for consideration, as noticed hereinbefore, is as to whether in a  situation of this nature back wages should have been granted to him.

       No hard and fast rule can be laid down in regard to grant to back  wages.  Each case has to be determined on its own facts.  A grave charge of  criminal misconduct was alleged against him.  He was also found guilty of  the charges levelled against him by the Special Judge.  The High Court  while delivering its judgment dated 16.01.2001 in S.B. Criminal Appeal No.  68 of 1985 inter alia held that the prosecution has not been able to prove that  any demand had been made by him.

       It is now a trite law that judgment of acquittal itself would not have  exonerated him of the charges levelled against him.  He could have been  proceeded against in a departmental proceeding. [See Manager, Reserve  Bank of India, Bangalore v. S. Mani and Others, (2005) 5 SCC 100 and  Commissioner of Police, New Delhi v. Narender Singh, (2006) 4 SCC 265]

       Departmental proceedings, however, could not be held as on the date  of passing of the judgment of acquittal, he had already reached his age of  superannuation.  The learned counsel may be right that the decisions of this  Court referred to hereinbefore involved the respective appellants therein on  charge of murder under Section 302 of the Indian Penal Code, but, as  noticed, it has also been laid down that each case has to be considered on its  own facts.  The High Court refused to exercise its discretionary jurisdiction  having regard to the aforementioned decision of this Court in Ranchhodji  Chaturji Thakore (supra).  We do not see any reason to take a different view.   Grant of back wages, it is well settled, is not automatic.  Even in cases where  principles of natural justice have been held to have not been complied with,  while issuing a direction of reinstatement, this Court had directed placing of  the delinquent employee under suspension.

       In Managing Director, ECIL, Hyderabad and Others v. B. Karunakar  and Others [(1993) 4 SCC 727 : AIR 1974 SC 1074], this Court opined:

"Hence, in all cases where the enquiry officer’s  report is not furnished to the delinquent  employee in the disciplinary proceedings, the  Courts and Tribunals should cause the copy of  the report to be furnished to the aggrieved  employee if he has not already secured it before  coming to the Court/Tribunal and give the  employee an opportunity to show how his or her  case was prejudiced because of the non-supply of  the report. If after hearing the parties, the  Court/Tribunal comes to the conclusion that the  non-supply of the report would have made no

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difference to the ultimate findings and the  punishment given, the Court/Tribunal should not  interfere with the order of punishment. The  Court/Tribunal should not mechanically set aside  the order of punishment on the ground that the  report was not furnished as is regrettably being  done at present. The courts should avoid  resorting to short cuts. Since it is the  Courts/Tribunals which will apply their judicial  mind to the question and give their reasons for  setting aside or not setting aside the order of  punishment, (and not any internal appellate or  revisional authority), there would be neither a  breach of the principles of natural justice nor a  denial of the reasonable opportunity. It is only if  the Court/Tribunal finds that the furnishing of the  report would have made a difference to the result  in the case that it should set aside the order of  punishment. Where after following the above  procedure, the Court/Tribunal sets aside the order  of punishment, the proper relief that should be  granted is to direct reinstatement of the employee  with liberty to the authority/management to  proceed with the inquiry, by placing the  employee under suspension and continuing the  inquiry from the stage of furnishing him with the  report. The question whether the employee would  be entitled to the back-wages and other benefits  from the date of his dismissal to the date of his  reinstatement if ultimately ordered, should  invariably be left to be decided by the authority  concerned according to law, after the culmination  of the proceedings and depending on the final  outcome. If the employee succeeds in the fresh  inquiry and is directed to be reinstated, the  authority should be at liberty to decide according  to law how it will treat the period from the date  of dismissal till the reinstatement and to what  benefits, if any and the extent of the benefits, he  will be entitled. The reinstatement made as a  result of the setting aside of the inquiry for  failure to furnish the report, should be treated as  a reinstatement for the purpose of holding the  fresh inquiry from the stage of furnishing the  report and no more, where such fresh inquiry is  held. That will also be the correct position in  law."

       [See also South Bengal State Transport Corpn. v. Sapan Kumar Mitra  and Others, (2006) 2 SCC 584]

       Even in relation to the industrial disputes, this Court, in many  judgments, has held that back wages need not be granted automatically  although the order of termination passed against the concerned workman  was found to be invalid.  [U.P. State Brassware Corpn. Ltd. and Another v.  Uday Narain Pandey, (2006) 1 SCC 479 and Municipal Council, Sujanpur v.  Surinder Kumar, (2006) 5 SCC 173]

       We, therefore, are of the opinion that it is not a fit case, having regard  to the fact that the appellant has been paid the retiral benefits, where we  should interfere with the impugned judgment.  The appeal is dismissed.  No  costs.