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Judgment
S. Ravindra Bhat, J.—Issue Rule. Mr. M. Atayab Siddiqui, learned counsel waives notice of Rule. With consent of parties, the matter was
heard finally.
The petitioner is claiming two reliefs; first, a direction to the respondents (hereafter collectively referred to as the University) to release past
salary arrears and also to grant appropriate seniority and promote him above his juniors, on the basis of the order dated 22.2.2004
The petitioner had joined the University in the year 1989 as Helper(Workshop) in the pay-scale of Rs. 800-1150. He was continued in that
post. He was arrayed as an accused in criminal proceedings pursuant to an FIR lodged complaining of offences inter alias under Sections 379, 392
and 492 of the Indian Penal Code. The FIR, lodged sometime in 1994, also implicated him for having committed offences under Sections 25 (54
and 59) of the Arms Act. The petitioner was arrested; after receiving intimation about this event, the University placed him under deemed
suspension in accordance with its rules.
One criminal trial was concluded by judgment dated 6.11.2000. The petitioner was absolved charges leveled under the Arms Act and
accordingly acquitted; however in the subsequent judgment dated 10.11.2000 he was convicted for having committed offences u/s 379 of the
Indian Penal Code. By a separate order, the petitioner was given benefit of probation under provisions of Probation of Offenders Act and required
to submit a surety of Rs. 10,000/.
Upon receiving the intimation about the fate of the criminal proceedings, the University initially passed an order on 22.2.2001 revoking the
suspension and intimating the petitioner that he would be kept under close scrutiny. The petitioner claims to be aggrieved by what is termed as
arbitrary withholding of monetary benefits.
Mr. Suhrawardy, learned counsel for the petitioner submitted that the denial of the full salary for the period between 1.12.1994 and 22.2.2001
when the petitioner was kept under deemed suspension is arbitrary. According to him, the criminal trials, resulting in his being placed on probation,
removed the basis of the suspension and the fact that the respondent University reinstated him, revoked is deemed suspension meant that in its
opinion the petitioner is fit to continue as its employee. As a consequence, he is entitled to all the benefits which include full salary, i.e. differential
salary between what was paid to him and what has been paid to him as subsistence allowances as also seniority and promotion which would
accrued to him during that period but were denied on account of deemed suspension.
Mr. Siddiqui, learned counsel appearing on behalf of the University submits that the petitioner''s is not a case of clean acquittal and in fact he
actually convicted. He relied upon an order issued on 24.1.2001 to say that the respondents decided not to grant the entirety of salary and
allowances payable during the period of suspension. It was also submitted by learned counsel that the judgment of the Supreme Court in
Ranchhodji Chaturji Thakore Vs. Superintendent Engineer, Gujarat Electricity Board, Himmatnagar, (Gujarat) and another, which has been
subsequently followed supports the view that an employee reinstated after completion of criminal proceedings does not have an absolute
entitlement to claim the full salary and allowances.
The order dated 24.5.2001 issued by the respondent reads as follows:
Sub: Release of Salary Arrears after revocation of suspension
This has reference to your application dated 19.3.2001 on the subject noted above. In this connection, this is to inform you that your
representation was duly considered. You were acquitted by Sh. J.P. Narain, Metropolitan Magistrate, New Delhi vide Order dated 13.10.99 for
offences complained against you under sections 392/34 IPC. Furthermore, Ms. Kamini Lau, Metropolitan Magistrate (New Delhi) acquitted you
vide Order dated 6.11.2000 under Sections 25/54/59 of the Arms Act by giving a benefit of doubt. You were however convicted under Sections
379/411 IPC by Ms. Kamini Lau, Metropolitan Magistrate vide Order dt. 10.11.2000.
In the light of the facts and circumstances inclusive of your conviction under Sections 379/411 IPC, you are not entitled to the re- imbursement of
the entirety of salary and allowances during the period of your suspension.
You may however, at your absolute discretion prefer an appeal to the Vice- Chancellor against the said decision.
The undisputed facts in this case are that between 1.12.1994 and 22.2.2004, the petitioner was kept under deemed suspension. During this
period, he faced criminal proceedings on account of multiple charges of having committed offences under various Acts including Arms Act. He was
acquitted from the charges of the Arms Act but convicted of having committed offences u/s 379 of the Indian Penal Code. The petitioner was not
sentenced but kept on probation having regard to his past conduct. However, that does not efface the effect of conviction. The two issues which
were agitated during these proceedings were the entitlement of the petitioner for differential salary for the period he was under deemed suspension
and also for all consequential benefits such as seniority and promotion that would have normally accrued to him.
As far as the first aspect is concerned, that matter has been gone into by the Supreme Court in several judgments. In Krishnakant Raghunath
Bibbavnekar v. State of Maharashtra (1997) 3 SCC 676 the Supreme Court explained the right of an employee to claim back wages after
reinstatement upon being acquitted in the following manner:
If the conduct alleged is the foundation for prosecution, though it may end in acquittal on appreciation or lack of sufficient evidence, the question
emerges whether the government servant prosecuted for commission of defalcation of public funds and fabrication of the records, though
culminated into acquittal, is entitled to be reinstated with consequential benefits. In our considered view this grant of consequential benefits with all
back wages etc. cannot be as a matter of course. We think that it would be deleterious to the maintenance of the discipline if a person suspended
on valid considerations is given full back wages as a matter of course on his acquittal.
This rule was again endorsed in Hukmi Chand Vs. Jhabua Cooperative Central Bank Ltd., Jhabua (M.P.) and Another, and two other
judgments, namely, Ranchhodji Chaturji Thakore Vs. Superintendent Engineer, Gujarat Electricity Board, Himmatnagar, (Gujarat) and another,
and Union of India (UOI) and Others Vs. Jaipal Singh,
The correct approach ought to be Therefore not to accede to claims for differential salaries but consider the offence, the offender and other
circumstances. One more circumstance which has to be necessarily kept in mind by the Court is that the employer for good and valid reason
decided not against initiating departmental proceedings but merely suspend the employee concerned from the service. In the case of public
employment (as with the respondent university undoubtedly) is the suspension entitles the employees to some subsistence allowance. In this case, it
is not disputed that the subsistence allowance was 50% of the salary.
In the conspectus of the facts of this case, I am not persuaded to accept the contention of the petitioner that he is entitled to the differential
amounts as claimed. The petitioner was not acquitted. His conviction stands on the record that he was merely kept on probation. Therefore, I am
rejecting the claim for differential wages as far as prayer (1) in the petition, is concerned.
As far as the second issue of consequential benefits of seniority and promotion are concerned, the pleadings in this case are not sufficient. Even
otherwise, the order dated 24.5.2005 is silent and does not indicate that the petitioner''s rights, in any manner, have been affected. It is open to the
petitioner to approach the University with a comprehensive representation claiming whatever benefits he seeks upon the reinstatement, (except the
issue of back wages which has been held against him in this judgment), within a period of eight weeks from today. In the event of respondent
University receiving such a representation, it shall pass a speaking order and communicate the same to the petitioner within three months from the
receipt of the representation.
All rights and contentions of the parties are kept open on the issue of benefits relating to seniority and promotion, of the petitioner.
The writ petition is disposed off in the above terms.