NEW
DELHI,
DEC 07, 2006 : AN employee
was dismissed from the services consequent of his conviction by a judgement
in an illegal gratification case. Subsequently the said judgement was set
aside and he was acquitted from the charges. By this time, he attained superannuation
and pension was allowed to him in view of the acquittal. Now the question
is whether he should be paid the back wages for the period between his dismissal
and his acquittal. This question came up before the Hon'ble Supreme Court
in a recent case and the details are as follows:
The appellant was working as a Patwari. On allegation that he had sought illegal
gratification, a trap was laid and he was found to have accepted the illegal
gratification. 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 passed by the Special Judge ( A.C.D.). He was dismissed from service
in terms of the said judgment of conviction by an order dated 3.10.1987. He
preferred an appeal against the said judgment of conviction and by a judgment
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. 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. However, he was denied the back wages. An appeal
preferred thereagainst was dismissed by the Division Bench. Thus the matter
reached the Supreme Court.
Learned counsel 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.
The Hon'ble Supreme Court dismissed the appeal by holding that :
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
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.
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 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
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].
(See
case law
2006-HRIOL-31-SC-SERVICE in 'Laws 4 U')
