Jaipur Vidyut Vitran Nigam Ltd.& Ors vs Nathu Ram

Jaipur Vidyut Vitran Nigam Ltd. & Ors. ...Appellants

Versus

Nathu Ram ...Respondent

JUDGMENT

TARUN CHATTERJEE, J.

1. Leave granted.

2. This appeal by way of a special leave petition at the instance

of Jaipur Vidyut Vitran Nigam Ltd has been filed from a

judgment and order dated 19th of November, 2007 in DB

Civil Special Appeal (Writ) No.1085 of 2007 arising out of a

writ petition filed by Nathu Ram (the respondent herein) for

payment of back wages from 29th of December, 1982 to 14th

of December, 1997 after he was reinstated in service by the

appellants.

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3. Before we proceed further, we may say at this stage that

while this Special Leave Petition was posted for hearing

before a Bench of this Court, the following order was

passed:-

"Issue notice limited to the question of payment of amount which is to be paid from 28.12.1982 to 15.12.1997."

4. The facts leading to the filing of this appeal may be

narrated as follows:

Jaipur Vidyut Vitran Nigam Ltd. (hereinafter referred to

as `the Corporation') has come into existence as a result of

dissolution of Rajasthan State Electricity Board to form

separate companies. The Corporation adopted the Rules,

Regulations and directions issued by the predecessor of the

Corporation until they framed their own rules. A Circular

dated 3rd of September, 1975, which relates to action to be

taken in cases where employees of the Rajasthan State

Electricity Board were convicted on criminal charges by a

competent court of law, was issued by the Rajasthan State

Electricity Board.

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5. Nathu Ram, the respondent, was appointed as a casual

labour in the erstwhile Rajasthan State Electricity Board and

was subsequently regularized on the post of Helper Grade II.

On 19th of September, 1979, the Respondent was allegedly

caught accepting bribe by the Anti Corruption Bureau, as a

result of which he was suspended from service by an order

dated 30th of November, 1979. On 22nd of December, 1982, the

learned Special Judge, Anti-Corruption cases, Jaipur held that

the respondent was guilty of offences under Section 161 of The

Indian Penal Code and under Section 5(1)(d) read with Section

5(2) of Anti Corruption Act, 1947 and sentenced him to one

year rigorous imprisonment with a fine of Rs.300/- for each of

the said offence. An appeal was carried by the respondent to

the High Court of Rajasthan at Jaipur challenging the

aforesaid conviction passed against him. In view of the

conviction passed against him, the Corporation terminated his

service by an order dated 28th of December, 1982. By an order

dated 15th of December, 1997, the High Court acquitted the

respondent of the charges leveled against him. The

Corporation, by virtue of this order of acquittal, reinstated the 4

respondent in service w.e.f. 15th of December, 1997, i.e. the

date of the acquittal and posted him in the office of Assistant

Engineer (Rural), Rajasthan State Electricity Board, Kunda Ki

Dhani by an order dated 2nd of June, 1998. The respondent

was given full pay and allowances for the period of suspension,

i.e. from 30th of November 1979 to 28th of December, 1982 and

from 15th of December, 1997 till his joining the duty. From the

above, it is clear that there was a break of 15 years in his

service. On 3rd of June, 1998, the Respondent joined the

service in the Corporation. He, however, retired on 31st of

May, 2003. After retirement, he filed a writ petition being SB

CWP No. 6440 of 2003 in the High Court of Rajasthan at

Jaipur in which, inter alia, the following reliefs were claimed

by the respondent :-

1)amendment of the order dated 2nd of June, 1998

reinstating the respondent in service to the effect that the

period from 29th of December, 1982 to 14th of December,

1997 may also be treated as period spent on duty for all

purposes with full pay and allowances. 5

2) consequential benefits of service from the date of his

suspension i.e. from 30th of November, 1979 to 2nd of June,

1998, which was the date of his reinstatement, including

pay and allowances, annual grade increment, bonus,

liveries along with interest @ 12 % per annum from 2nd of

June, 1998 to the date of payment, fixation benefits in

revised pay scales for the years 1981, 1986, 1989 and 1996,

selection scales as per Order dated 25th of January, 1992,

arrears of pay and allowance with interest @ 12 % per

annum from 2nd of June, 1998 to the date of payment.

3)Pensionary benefits including pension, gratuity, and leave

encashment after fixing his pay in revised pay scales and

selection scale along with interest @ 12 % per annum from

1st of June, 2003 to the date of payment.

6. After the Corporation appeared and contested the

writ application by filing an affidavit to the writ petition, a

learned Single Judge of the High Court of Rajasthan passed

a final order on the writ application directing the

Corporation to pay back wages from 29th of December, 1982

to 14th of December, 1997 when he was acquitted. While 6

doing so, the learned Single Judge directed that the

respondent shall be paid salaries and allowances to the

extent of what would have been payable to him had he

remained under suspension from the date of termination to

the date of acquittal. According to the learned Single Judge,

this period ought to have been treated as spent on duty

without any break. The Corporation was also directed to fix

his pay in the revised Pay Scales, as claimed, and to

consider his case for selection scale. Thus, the writ petition

of the respondent was partly allowed. While directing so, the

learned Single Judge had relied on a Circular of the

erstwhile Rajasthan State Electricity Board issued on 3rd of

September, 1975 as noted herein earlier. From the order of

the learned Single Judge, it also appears that the learned

Judge had relied on para (iii) of the circular dated 3rd of

September, 1975. As regards regularization of the period

from the date of dismissal i.e. 28th of December, 1982 to the

date of reinstatement i.e. 14th of December, 1997, it was

held that the respondent was entitled to the payment of

subsistence allowance in terms of the Circular dated 3rd of 7

September, 1975, which in fact, clearly states that the

period between the date of dismissal etc. and the date on

which the employee resumes duty should be dealt with

under Regulation 41 of the Employees Services Regulations

1964 (in short the `Regulations').

7. Feeling aggrieved by the order of the learned

Single Judge, an appeal was carried to the Division Bench

of the High Court, which affirmed the order of the learned

Single Judge and accordingly, this Special Leave Petition

has been filed by the Corporation against the order of the

Division Bench, which on grant of leave, was heard in

presence of the learned counsel for the parties.

8. Before us, the learned counsel appearing on

behalf of the Corporation at the first instance submitted

that since a Writ petition was filed by the respondent after a

long delay and even after joining the service, without

explaining why such delay was caused, the High Court

could not have entertained the writ petition. We are not in

a position to accept this submission of the learned counsel

for the Corporation on the question of delay only because 8

the question of delay in filing the writ petition was not even

taken by the Corporation either before the learned Single

Judge or even before the Division Bench of the High Court.

This question was only raised for the first time in the

Special Leave Petition before this Court. The question of

delay not having been raised before the High Court, we are

unable to entertain this question at this stage. Accordingly,

this submission of the learned counsel for the Corporation

stands rejected.

9. Secondly, it was contended that since the

respondent had not worked during the period of dismissal,

he was not entitled to any remuneration for the period

mentioned herein earlier. In support of this submission,

the learned counsel for the Corporation had drawn our

attention to two decisions of this Court in the case of

Ranchhodji Chaturji Thakore vs. Superintendent

Engineer, Gujarat Electricity Board, Himmatnagar,

Gujarat and another [1996 (11) SCC 603] and Union of

India & Ors. Vs. Jaipal Singh [2004 (1) SCC 121]. Before

we deal with the aforesaid two decisions as relied on by the 9

learned counsel for the Corporation, we may consider the

Circular dated 3rd of September, 1975, issued by the

erstwhile Rajasthan State Electricity Board, on which

strong reliance was placed by the courts below, needs to be

looked into. It cannot be disputed that the said circular

itself was binding on the Corporation. Therefore, at this

stage, we may reproduce the said Circular dated 3rd of

September, 1975 as well as Regulation 41 of the

Regulations which are as follows :

"Sub: Action to be taken in cases where Board's employees are convicted on a criminal charge by a competent court of law.

The following procedure should be adopted in a case of conviction of a Board's employee by a Court of Law on a criminal charge:

(i)...

(ii)...

(iii) If an appeal/revision against the conviction succeeds and Board's employee is acquitted, the order of dismissal, removal or compulsory retirement based on his conviction which no longer stands, becomes liable to be set aside. A copy of the judgment of the appellate Court should be immediately procured and got examined with a view to decide whether despite the acquittal, the facts and circumstances of the case are such as to call for the departmental enquiry against the 10

Board's employee on the basis of the allegation on which he was previously convicted.

If it is decided that a departmental enquiry should be held, formal orders should be made:

(1) setting aside the order or dismissal, removal or compulsory retirement, and

(2) ordering such a departmental enquiry.

Such an order should also state that under Regulation No. 9 of the RSEB (CC & A) Regulations 1962, the Board's employee is deemed to be under suspension with effect from the date of the dismissa1/remova1/compulsory retirement (A Standard Form-II is enclosed).

In case where neither of the aforesaid course is allowed, a formal order should be made setting aside the previous orders of dismissal, removal and compulsory retirement and reinstating him in service (A Standard Form No. III for such an order is enclosed).

The period between the date of dismissal etc. and the date on which he resumes duty should be dealt with under Regulation No. 41 of the Rajasthan State Electricity Board Employees Service Regulations and in doing so he should be deemed to be entitled to full pay and allowances for the period from the date of his acquittal to the date of his reinstatement, such period being counted for duty for all purposes and for the period from the date of dismissal to the date of acquittal, he should not be allowed pay and allowances less than what would have been admissible to him had be remained under suspension.

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While issuing orders for dismissal, it should be borne in mind that the order is issued by the authority competent to inflict major penalty against that person."

Regulation 41 :-

"Re-instatement after suspension, removal or dismissal:

When an employee who has been dismissed, removed or suspended is reinstated, the authority competent to order the reinstatement shall consider and make a specified order :

1. (a) Regarding the pay and allowance to be paid to the employee for the period of his absence from duty, and

(b) Whether or not the said period shall be treated as a period spent on duty.

(c) Whether or not the suspension, removal or dismissal was wholly unjustifiable.

2. Where such competent authority holds that the employee has been fully exonerated or in the case of suspension that it was wholly unjustified, the employee shall be given the full pay and dearness allowance to which he would have been entitled had he not been dismissed, removed or suspended, as the case may be."

10. On a close examination of the Circular dated 3rd of

September, 1975 and Regulation 41(2) of the 12

Regulations, as noted hereinabove, it would be clear

that the Circular of the Corporation specifically

provides that the period between the date of

dismissal and the date on which the respondent

resumed his duty should be dealt with under

Regulation 41(2) of the said Regulations. At the

same time, Regulation 41 also clearly says that

when an employee who has been dismissed and

thereafter reinstated, the authority competent to

make the order of reinstatement shall consider the

pay and allowances to be paid to the employee for

the period of his absence from duty. This Circular

along with Regulation 41, therefore, makes it clear

that the authority is bound to take into

consideration regarding pay and allowances to be

paid to the employee for the period of his absence

from duty. The Circular also clearly says that in

doing so, the employee should be deemed to be

entitled to full pay and allowances for the period

from the date of his acquittal to the date of his 13

reinstatement. From the above discussions, it is

clear that the case of the respondent was fully

covered by the Circular of the erstwhile Board dated

3rd of September, 1975. The period in question, as

noted herein earlier, for payment of allowance is

from the date of dismissal i.e. 28.12.1982 to the

date of acquittal i.e. 15.12.1997. As noted herein

earlier, last paragraph of the Circular dated 3rd of

September, 1975 which is important for our

purpose may be reproduced as follows :

"The period between the date of dismissal etc. and the date on which he resumes duty should be dealt with under Regulation No.41 of Rajasthan State Electricity Board Employee Service Regulation and in doing so he should be deemed to be entitled to full pay and allowances for the period from the date of his acquittal to the date of his reinstatement, such period being counted for duty for all purpose and for the period from the date of dismissal to the date of acquittal he should not be allowed pay and allowances less than what have been admissible to him had he remained under suspension."

It is not in dispute that the appellant-Corporation have 14

themselves given full pay to the respondent from the date of

suspension i.e. 30th of November, 1979 to the date of

dismissal i.e. 28th of December, 1982 and from the date of

acquittal i.e. 15th of December, 1997 to the date of

reinstatement i.e. 3rd of June, 1998. Such being the state of

affairs, it is not acceptable that there was any reason for the

Corporation not to give the suspension allowances for the

period of termination i.e. 28th of December, 1982 to the date

of acquittal i.e. 15th of December, 1997 in terms of the

circular dated 3rd of September, 1975. This circular also

says that the period from the date of dismissal to the date of

acquittal, the employee should not be allowed to pay and

allowances less than what would have been admissible to

him had he remained under suspension. Therefore, from a

reading of the Circular, it would be evident that the

respondent may be paid the pay and allowances admissible

to him had he remained under suspension. This was the

view expressed by the learned Single Judge as well as the

Division Bench of the High Court. Further, as noted herein

earlier, the learned counsel for the Corporation had drawn 15

our attention to two decisions of this Court. So far as the

decision in Ranchhodji's case (supra) is concerned, we are

of the view that the principle laid down in the said decision

is not applicable to the facts and circumstances of the

present case. The facts of the present case are quite

different from that of the said decision. Apart from that, in

that decision, a disciplinary proceeding was initiated and

subsequently, it was decided that back wages should be

paid if the employer had taken action by way of disciplinary

proceeding and the action was found to be unsustainable in

law. So far as the present case is concerned, no

disciplinary proceeding was initiated. Only the termination

order was passed by the Corporation as a result of his

conviction in a criminal case. Accordingly, this decision in

Ranchhodji's case (supra) is of no help to the Corporation.

11. So far as the other decision on which strong

reliance was also placed by the learned counsel for

the Corporation, namely, Union of India & Ors.

Vs. Jaipal Singh [2004 (1) SCC 121] is concerned, 16

similarly this decision of this Court, in our view, is

also equally not applicable in the facts and

circumstances of the present case. It is true that in

that decision this Court has held that an employee

is not entitled to pay back wages for the period of

absence i.e. from the date of dismissal to

reinstatement, which would otherwise be counted

towards his service, but in view of the circular dated

3rd of September, 1975 particularly the last

paragraph of the said circular as noted herein

earlier, it cannot now be said that the respondent is

not entitled to pay back wages as directed by the

Division Bench of the High Court in the writ

petition.

12. In view of our discussions made hereinabove and

considering the Circular dated 3rd of September,

1975, we do not find any merit in this appeal. No

other point was urged by the learned counsel for the 17

Corporation before us. Accordingly, this appeal fails

and dismissed. There will be no order as to costs.

..........................J. [Tarun Chatterjee]

New Delhi; ............................J. November 23, 2009 [R.M.Lodha]