Mere bail not enough. Conviction under 498a 304B to be STAYED to get backwages. Criminal taint stops employement. GUJARAT HC
/// the fatum of conviction and when it was not stayed by any competent Court would entail the originality and when offence under Sections 498A and 306 of the Indian Penal Code, the Hon’ble Supreme Court has held that the employer cannot be saddled with the liability of paying the wages to the employee when he was dismissed on account of conviction irrespective of reinstatement on account of acquittal. We hastened to add here that the situation would have been different if the conviction order itself was stayed by the Court. Mere enlargement of the employee on bail itself, would not amount to stay the conviction and, therefore, stigma attached to the employee on account of conviction remains and it would effect only when the competent Court converted the conviction into acquittal./////
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 2236 of 2019
SHARAD JIVANLAL KURANI
UNION OF INDIA
MR PH PATHAK(665) for the PETITIONER(s) No. 1
for the RESPONDENT(s) No. 1,2,3,4,5
CORAM: Hon’ble MR.JUSTICE S.R.BRAHMBHATT
Hon’ble MR.JUSTICE A.G.URAIZEE
Date : 06/02/2019
(PER : Hon’ble MR.JUSTICE S.R.BRAHMBHATT)
Heard Shri P. H. Pathak, learned counsel appearing for the petitioner.
Petitioner, who happened to be an applicant in original application being Original Application No.490 of 2012 with M.A. No.79 of 2013 has taken out this petition under Articles 226 and 227 of the Constitution of India assailing the judgment and order of the Central Administrative Tribunal, Ahmedabad Bench dated 31.08.2016, whereby the tribunal has rejected the prayer of backwages for the period from dismissal to the acquittal and reinstatement.
2. The facts in brief, could be gathered from the decision and the memo of petition, deserves to be set-out as under, for appreciating the controversy.
2.1 The petitioner was working as T. S. Clerk with Gujarat Telecom Circle of the Indian Post and Telegraphs Department from 01.01.1983. Later on, he was promoted as Sr. TOA (G) and was working with Telecom District, Rajkot. The Bharat Sanchar Nigam Limited (BSNL) came into existence w.e.f. 01.10.2000 and under an order dated 18.01.2002, the petitioner was absorbed in BSNL w.e.f. 01.10.2000. The petitioner had to face criminal prosecution u/s. 498A and 304B read with Section 114 of the Indian Penal Code in Sessions Case No.138 of 1991. The Sessions Court has acquitted the petitioner vide order dated 22.01.1997. Such acquittal order dated 22.01.1997 was challenged by the State Government, in Criminal Appeal No.335 of 1997. The High Court of Gujarat on 06.05.2004 allowed the said Criminal Appeal No.335 of 1997 and order of acquittal dated 22.01.1997 in Sessions Case No.138 of 1991 was set aside and acquittal was converted into conviction, punishable under Sections 498A and 306 of the Indian Penal Code and sentence of 5 years rigorous imprisonment and fine of Rs.3000/-, in default whereof further rigorous imprisonment of 6 months was awarded. Being aggrieved, the order of the High Court rendered on 06.05.2004 in Criminal Appeal No.335 of 1997 was assailed in Special Leave to Appeal (Criminal) No.3154 of 2004. Main contention of the petitioner is that on account of his conviction in the Criminal Appeal, he came to be dismissed from C/SCA/2236/2019 ORDER services vide order dated 26.09.2006 i.e. after some time of conviction by the High Court and the petitioner was through out enjoying the bail and he was not in custody. The appeal in the Hon’ble Supreme Court being Criminal Appeal No.810 of 2004 was allowed and trial Court’s order was restored. The petitioner has filed Original Application for seeking appropriate relief and reinstatement. The department had reinstated the petitioner on 12.08.2011. The tribunal has rendered the decision on 31.08.2016, whereby, the petitioner was not granted the backwages from the date of dismissal, till the date of reinstatement based upon the fact that the Hon’ble Supreme Court in its decision cited in the judgment, which are reproduced as under, held that the respondent cannot be saddled with liability to make payment for the period, when the petitioner did not discharge his duties.
So the said order was assailed in this petition under Articles 226 and 227 of the Constitution of India.;
(1) “In the case of Ranchhodji Chaturji thakore vs. Superintendent Engineer, Gujarat Electricity Board, Himmatnagar (Gujarat) and Anr. reported in (1996) 11 SCC 603 the Hon’ble Supreme Court considered whether back wages would be paid to the employees for the period between the date of dismissal and the date of reinstatement. The Hon’ble 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 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 back wages.”
(2) In case of Union of Inida & Ors. vs. Jaipal Singh reported in (2004) 1 SCC 121, the Hon’ble Supreme Court after expressing the agreement with the view in Ranchhodji (supra) 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 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 reinstatement cannot be sustained and the respondent has to be reinstated, 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 are liable to be and is hereby set aside . The respondent will be entitled to backwages from the date of acquittal and except for the purpose of denying the respondent actual payment of backwages, that period also will be counted as period of service, without any break.””
4. Learned counsel for the petitioner has contended that the factum of restoration of service of the petitioner ought to have been appreciated by the tribunal. He has further contended that petitioner was not permitted to serve the department. Therefore, when he was available to discharge his duty, the dismissal order itself was not justified, as it was passed after one and half years of the order of conviction. The Hon’ble Supreme Court has also not said that the conviction and dismissal based thereupon would not entail the order of back-wages even after reinstatement in all cases. The facts and circumstances of the case have to be examined and appropriate relief is required to be granted.
This Court is of the view that the petition requires to be dismissed as the judgment and order passed by the tribunal does not call for any interference for the following reasons;
4.1 The Hon’ble Supreme Court’s judgments relied upon by the tribunal and extract of which were cited herein above, indicates the fatum of conviction and when it was not stayed by any competent Court would entail the originality and when offence under Sections 498A and 306 of the Indian Penal Code, the Hon’ble Supreme Court has held that the employer cannot be saddled with the liability of paying the wages to the employee when he was dismissed on account of conviction irrespective of reinstatement on account of acquittal. We hastened to add here that the situation would have been different if the conviction order itself was stayed by the Court. Mere enlargement of the employee on bail itself, would not amount to stay the conviction and, therefore, stigma attached to the employee on account of conviction remains and it would effect only when the competent Court converted the conviction into acquittal.
Therefore, in our view, the tribunal’s reasonings cannot be said to be suffers from any infirmity, so as to call for any interference. As a result thereof, the petition fails and hereby dismissed.
(S.R.BRAHMBHATT, J) (A.G.URAIZEE, J)
DRASHTI K. SHUKLA