Raj Narain vs Union Of India

CIVIL APPEAL No. 3339 of 2019 [ Arising out of S.L.P. (Civil) No. 100 of 2016 ]

RAJ NARAIN .... Appellant

Versus

UNION OF INDIA & ORS. …. Respondents

JUDGMENT

L. NAGESWARA RAO, J.

Leave granted.

1. The Appellant was placed under suspension on

23.10.1979 while he was working as Sorting Assistant in

Railway Mail Service (RMS) at Mughalsarai, in

contemplation of disciplinary proceedings on the

allegations of involvement in forged payments of high

value money orders. An FIR was lodged against the

Appellant at Mughalsarai Police Station and the case was

registered as Crime No.358 of 1979 under Section 409/420 Signature Not Verified Digitally signed by VISHAL ANAND Date: 2019.04.01 16:16:05 IST IPC. The order of suspension was revoked on 21.10.1987 Reason:

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pursuant to which he joined duty and worked till

28.02.1997, when he was dismissed from service in view of

his conviction under Section 409, 467 and 420 IPC. He was

sentenced to imprisonment for three years. The Appellant,

thereafter, filed an appeal against his conviction. The

Criminal Appeal filed by the Appellant was allowed and he

was acquitted of the charges for offences under Section

409, 420 and 467 IPC.

2. The request of the Appellant for reinstatement after

acquittal was refused on 13.06.2002. It was mentioned in

the Memo dated 13.06.2002 that the Appellant could be

reinstated as he was already dismissed from service more

than six years ago. The order of dismissal dated

28.02.1997 and the order of refusal to reinstate in service

dated 13.06.2002 were challenged by the Appellant before

the Tribunal. The Tribunal allowed the original application

and directed the reinstatement of the Appellant by holding

that he shall be entitled for seniority and notional fixation

of pay with increments from the date of his dismissal till

his reinstatement. However, the Tribunal held that the

Appellant shall not be entitled for any back wages for the

2 period during which he was not in service. Pursuant to the

order of the Tribunal, the Appellant was reinstated on

20.01.2003. By an order dated 01.05.2003, the Senior

Superintendent of RMS, Allahabad rejected the

representation of the Appellant for full pay and allowances

for the period of the suspension i.e. 23.10.1979 to

11.11.1987. The Writ Petition filed by the Appellant

against the order of the Tribunal by which he was not

granted back wages was partly allowed by the High Court.

The High Court held that the Appellant shall be entitled to

full back wages from the date of the order of his acquittal

i.e. 31.08.2001 till the date of his reinstatement i.e.

20.01.2003. The Appellant is before us assailing the

legality and validity of the judgment of the High Court by

which the payment of back wages was restricted only to

the period between the date of his acquittal and the date

of his reinstatement.

3. The learned counsel appearing for the Petitioner

relied upon the judgment of this Court in Ranchhodji

Chaturji Thakore v. Superintendent Engineer,

3 Gujarat Electricity Board and Anr.1 and Union of

India and Others v. Jaipal Singh2 to contend that in

case the criminal proceedings are initiated at the behest of

the employer, and the employee is acquitted, he would be

entitled to claim full wages for the period he was kept out

of duty during the pendency of the criminal proceedings.

He also submitted that the Appellant is entitled to full

salary for the period from 1979 to 1987. He submitted

that the Appellant has filed an Interlocutory Application

seeking the said relief in the High Court which was not

considered.

4. Ms. Madhavi Divan, learned Additional Solicitor

General contended that the Appellant is not entitled to

back wages. She submitted that there was no difference

between a criminal case initiated at the instance of the

employer and one by the police. She also submitted that

the Appellant was not entitled to any relief of payment of

full back wages between 1979 to 1987 as the I.A. filed by

the Appellant does not find mention in the impugned

judgment of the High Court.

1 1996 (11) SCC 603 2 2004 (1) SCC 121

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5. This Court in Ranchhodji Chaturji Thakore (supra)

considered the case of an employee who sought back

wages for the period he was kept out of duty during the

pendency of a criminal case for his involvement in an

offence under Section 302, IPC. The claim of the Petitioner

therein was that he was entitled to full wages on his

acquittal by the Criminal Court. This Court rejected the

said submission by holding that the question of payment of

back wages would arise only in case of termination of

service, pursuant to findings recorded in a departmental

enquiry. In the event of the dismissal order being set aside

by the Court, the delinquent employee would be entitled to

claim back wages as he was unlawfully kept away from

duty by the employer. This Court was of the opinion that

an employee against whom criminal proceedings are

initiated would stand on a different footing in comparison

to an employee facing a departmental inquiry. The

employee involved in a crime has disabled himself from

rendering his services on account of his incarceration in

jail. Subsequent acquittal by an Appellate Court would not

entitle him to claim back wages.

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6. The decision of Ranchhodji Chaturji Thakore

(supra) was followed by this Court in Union of India and

Others v. Jaipal Singh (supra) to refuse back wages to an

employee who was initially convicted for an offence under

Section 302 read with Section 34 IPC and later acquitted

by the High Court in a criminal appeal. While refusing to

grant relief to the Petitioner therein, this Court held that

subsequent acquittal would not entitle an employee to

seek back wages. However, this Court was of the opinion

that if the prosecution is launched at the behest of the

department and the employee is acquitted, different

considerations may arise. The learned counsel for the

Appellant endeavored to distinguish the prosecution

launched by the police for involvement of an employee in a

criminal case and the criminal proceedings initiated at the

behest of the employer. The observation made in the

judgment in Union of India and Others v. Jaipal Singh

(supra) has to be understood in a manner in which the

department would become liable for back wages in the

event of a finding that the initiation of the criminal

proceedings was mala fide or with vexatious intent. In all

6 other cases, we do not see any difference between

initiation of the criminal proceedings by the department

vis-a-vis a criminal case lodged by the police. For

example, if an employee is involved in embezzlement of

funds or is found indulging in demand and acceptance of

illegal gratification, the employer cannot be mulcted with

full back wages on the acquittal of the person by a criminal

Court, unless it is found that the prosecution is malicious.

7. The point that remains to be considered is whether

the Appellant is entitled to payment of full wages between

1979 and 1987. The Appellant was placed under

suspension on 23.10.1979 and his suspension was revoked

on 21.10.1987. An interesting development took place

during the interregnum by which the disciplinary

proceedings were dropped on 21.03.1983. It is clear from

the record that the Appellant was the one who was seeking

postponement of the departmental inquiry in view of the

pendency of criminal case. The order of suspension was in

contemplation of disciplinary proceedings. By virtue of the

disciplinary proceedings being dropped, the Appellant

becomes entitled to claim full salary for the period from

7 the date of his suspension till the date of closure of the

departmental inquiry. Thereafter, the Respondents took

four years to reinstate him by revoking his suspension.

The order of suspension dated 23.10.1979 came to an end

on 21.03.1983 which is the date on which disciplinary

proceedings were dropped. The Appellant ought to have

been reinstated immediately thereafter unless a fresh

order was passed, placing him under suspension during

the pendency of the criminal trial which did not happen.

Ultimately, the Appellant was reinstated by an order dated

21.10.1987 by revocation of the order of suspension.

Though, technically, the learned Additional Solicitor

General is right in submitting that the impugned judgment

does not even refer to the I.A., we are not inclined to remit

the matter to the High Court at this stage for fresh

consideration of this point. We hold that the Appellant is

entitled for full wages from 23.10.1979 to 21.10.1987 after

adjustment of the amounts already paid towards

subsistence allowance.

8. For the reasons mentioned above, we approve the

judgment of the High Court by holding that the Appellant

8 shall be entitled for back wages only from the date of

acquittal on 31.08.2001, till the date of his reinstatement

on 20.01.2003. Further, the Appellant shall be entitled to

full salary from 23.10.1979 to 21.10.1987.

9. Accordingly, the appeal is disposed of.

.................................J. [L. NAGESWARA RAO]

..................................J. [M.R.SHAH]

New Delhi, April 01, 2019.

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