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Judgment
NAMIT KUMAR, J.
The present petition has been filed by the petitioner under Article 226 of the Constitution of India for issuance of a writ in the nature of certiorari for quashing charge-sheet dated 06.06.2013 (Annexure P-2) issued by respondent No.4; order dated 23.02.2017 (Annexure P-5) passed by respondent No.3, whereby his services were terminated; order dated 15.10.2020 (Annexure P-7) passed by respondent No.2, whereby appeal preferred by the petitioner against the order of dismissal was rejected; and communication having Memo No.35718 dated 06.11.2023 (Annexure P-12), conveyed to the petitioner vide letter dated 29.11.2023 (Annexure P-13), whereby representations dated 26.06.2023 (Annexure P-10) and 21.11.2023 (Annexure P-11) submitted by the petitioner seeking reinstatement in service, were rejected. Further, a writ in the nature of mandamus has been sought directing the respondents to reinstate the petitioner in service with all consequential benefits along with interest @ 18% p.a.
Briefly stated, the facts of the case are that the petitioner was appointed as Regular T-Mate with the erstwhile Punjab State Electricity Board [now Punjab State Power Corporation Ltd. (PSPCL)] on 24.10.1990 and was subsequently promoted to the post of Assistant Lineman on 17.10.1996.
It has further been pleaded that the petitioner was residing in a joint family along with his father and brother. His brother had rented out a portion of the house in the year 2012 to one Ravinder Singh son of Manmohan Singh, a private contractor running the business under the name and style of M/s S.R.Powers, Guruharsai. The said tenant/contractor was working with PSPCL and, according to the petitioner, he had made an illegal direct connection from the meter in order to obtain electricity supply in an unauthorized manner, without the knowledge of the petitioner and his family members. The petitioner has asserted that he had no direct dealing with the said tenant and had no knowledge of the alleged illegal connection.
On 01.03.2013, officials of the PSPCL conducted an inspection at the premises. During inspection, it was noticed that the meter, which was installed on the pillar box outside the house, was neither locked nor bearing MTC seals. The LED of the meter was not flickering, the terminal block of meter was burnt and the incoming wire had allegedly been connected directly by bypassing the meter. On the basis of said inspection, the inspecting officials recorded a finding that the residents of the inspecting premises were obtaining electricity supply in an unauthorized manner. Consequently, a notice was issued to the petitioner to deposit Rs.2,62,566/- as compensation and Rs.50,000/- as compounding fee. Pursuant to the report submitted by the inspecting team, the petitioner was placed under suspension.
Subsequently, FIR No.82 dated 07.03.2013 under Section 135 of the Electricity Act was registered against the petitioner at Police Station Anti Power Theft Bathinda, Bathinda. Thereafter, the petitioner was served with charge-sheet dated 06.06.2013 containing the following charge:
“The Addl. SE/Enforcement, PSPCL, Sri Muktsar Sahib checked A/c No.CK46/503 on dated 01.03.2013, which was in the name of Sh. Natha Singh. During checking, it was found that he (Sh. Sukhwinder Singh, Assistant Lineman) is residing in this premises and he (Sh. Sukhwinder Singh, Assistant Lineman) is getting electricity concession on this account. His meter was installed in the pillar box outside his residence. The pillar box was not locked and there was no MT seal attached to it. The LED flicker of meter was closed. The terminal block of meter was burnt. He (Sh. Sukhwinder Singh, Assistant Lineman) was found indulging in the theft of energy through incoming electric wire by bypassing the meter. Besides above, he (Sh. Sukhwinder Singh, Assistant Lineman) made a joint in 4 core cable passing over the roof of his house by adjoining it with 3 phase supply to run his cutter/press motor and in this way, he was found indulging in theft of energy. Due to above omissions/commissions/irregularities, he (Sh. Sukhwinder Singh, Assistant Lineman) is held directly responsible under Act 4 and 20 A of Employees Conduct Regulation – 1971 of PSEB now PSPCL.”
The petitioner submitted a detailed reply to the charge-sheet on 28.06.2013 (Annexure P-3). However, no departmental inquiry was conducted thereafter. Meanwhile, the criminal proceedings arising out of FIR No.82 dated 07.03.2013, culminated in the conviction of the petitioner by the learned Judge, Special Court, Sri Muktsar Sahib, vide judgment of conviction and order of sentence dated 24.01.2017 (Annexure P-4) and he was ordered to undergo rigorous imprisonment for a period of 2 years. The petitioner challenged the judgment of conviction and order of sentence dated 24.01.2017 (Annexure P-4) by filing CRA-S-625-SB-2017 before this Court. On the basis of said conviction, the petitioner was dismissed from service vide order dated 23.02.2017 (Annexure P-5).
Aggrieved against the order of dismissal, the petitioner preferred an appeal before the Appellate Authority. Since the appeal was not being considered and decided, the petitioner approached this Court by filing CWP-12379-2020 titled ‘Sukhwinder Singh Vs. Punjab State Power Corporation Limited, Patiala & others’. The said writ petition was disposed of by this Court, vide order dated 21.08.2020 (Annexure P-6), thereby directing the Appellate Authority to decide the appeal filed by the petitioner against the order of dismissal dated 23.02.2017, within a period of three months. In compliance thereof, the Appellate Authority considered the appeal of the petitioner and rejected the same, vide order dated 15.10.2020 (Annexure P-7).
The petitioner, thereafter, challenged the said order dated 15.10.2020 (Annexure P-7), by filing CWP-23330-2021 titled ‘Sukhwinder Singh Vs. Punjab State Power Corporation Limited, Patiala & others’. However, since the criminal appeal preferred by the petitioner against his conviction was pending adjudication, the said writ petition was withdrawn with liberty to file a fresh petition after the decision of the appeal, vide order dated 17.08.2022 (Annexure P-8).
The criminal appeal i.e. CRA-S-625-SB-2017, was thereafter allowed by this Court, vide judgment dated 08.06.2023 (Annexure P-9), and the petitioner was acquitted of the charges leveled against him.
After his acquittal in the criminal case arising out of FIR No.82 dated 07.03.2013, the petitioner submitted a representation dated 26.06.2023 (Annexure P-10) seeking reinstatement in service, followed by reminder dated 21.11.2023 (Annexure P-11). However, the claim of the petitioner for reinstatement has been rejected, vide internal communication dated 06.11.2023 (Annexure P-12), which was conveyed to the petitioner, vide letter dated 29.11.2023 (Annexure P-13). Hence, the present writ petition.
Short reply on behalf of the respondents has been filed, wherein all the material facts stated in the petition have been admitted. It has been stated that after issuance of charge-sheet dated 06.06.2013 and submission of reply by the petitioner on 28.06.2013, the petitioner was convicted by the learned Judge, Special Court, Sri Muktsar Sahib and was ordered to undergo rigorous imprisonment for a period of 2 years, vide judgment of conviction and order of sentence dated 24.01.2017 (Annexure P-4) and consequently, the petitioner was dismissed from service, vide order dated 23.02.2017 (Annexure P-5). It is further admitted that the petitioner was subsequently acquitted by this Court vide judgment dated 08.06.2023 (Annexure P-9) in CRA-S-625-SB-2017. However, the stand of the respondents is that since the Appellate Authority had already rejected the petitioner’s appeal, vide order dated 15.10.2020 and this Court, while acquitting him, had not granted any relief regarding reinstatement, therefore, no further action was required on his representation.
Learned counsel for the petitioner submits that the very foundation of the order of dismissal was the conviction of the petitioner in the criminal case i.e. FIR No.82 dated 07.03.2013, and once such conviction has been set aside by this Court and the petitioner has been acquitted of the charges, the respondents cannot deny him reinstatement on the basis of the very same allegations. It is further submitted that the departmental charge-sheet was never taken to its logical conclusion and no finding of guilt was recorded against the petitioner in any departmental inquiry. Learned counsel submits that the petitioner is, therefore, entitled to reinstatement with continuity of service and consequential benefits, including release of full salary for the period of suspension and payment of back wages. In support of his submissions, reliance has been placed upon the judgment of the Hon'ble Supreme Court in Raj Narain Vs. Union of India & others, (2019) 5 SCC 809.
Per contra, learned counsel representing the respondents submits that the petitioner was dismissed from service pursuant to his conviction in a criminal case and that the order dated 15.10.2020 passed by the Appellate Authority had attained finality. It is further submitted that the subsequent acquittal of the petitioner would not, by itself, confer an automatic right to reinstatement or back wages. Learned counsel for the respondents placed reliance upon the judgment of Hon’ble Supreme Court in Union of India & others Vs. Jaipal Singh, 2004(1) SCT 108.
I have heard learned counsel for the parties and have perused the record.
It is an admitted fact that the petitioner was issued charge-sheet dated 06.06.2013 (Annexure P-2) on the same set of allegations, which were subject matter of the criminal case. After submitting reply to the charge-sheet on 28.06.2013 (Annexure P-3), no further action was taken by the respondents. It is only after the judgment of conviction and order of sentence dated 24.01.2017 (Annexure P-4), the petitioner was dismissed from service, vide order dated 23.02.2017 (Annexure P-5). Thus, the dismissal was not founded upon any finding of guilt recorded in departmental proceedings. Thereafter, the petitioner preferred criminal appeal bearing CRA-S-625-SB-2017 against the judgment of conviction and order of sentence and was acquitted by this Court, vide judgment dated 08.06.2023 (Annexure P-9), wherein the following findings were recorded:
7.In view of the amendment if the meter is installed outside the premises of the consumer he will not be responsible for the protection of the meter not only from the theft or damage to the seals/ meter, but also in case of tempering of the seals/ meter, however, the benefit of the extended scope of this regulation was not given to the appellant as this notification came into force on 21.06.2013, whereas, in the present case, inspection was carried out on 01.03.2013. It was held by Hon'ble Apex Court in “T. Barai v. Henry Ah Hoe and Another” reported as 1983 (1) SCC 177 that:
“22.It is only retroactive criminal legislation that is prohibited under Article 20(1). The prohibition contained in Article 20(1) is that no person shall be convicted of any offence except for violation of a law in force at the time of the commission of the act charged as an offence prohibits nor shall he be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence. It is quite clear that insofar as the Central Amendment Act creates new offences or enhances punishment for a particular type of offence no person can be convicted by such ex post facto law nor can the enhanced punishment prescribed by the amendment be applicable. But insofar as the Central Amendment Act reduces the punishment for an offence punishable under Section 16(1)(a) of the Act, there is no reason why the accused should not have the benefit of such reduced punishment. The rule of beneficial construction requires that even ex post facto law of such a type should be applied to mitigate the rigour of the law. The principle is based both on sound reason and common sense.”
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11.Secondly, on record this is an admitted fact that procedure regarding seizure of equipments used for the purpose of theft or tampering was not followed by the raiding team. Regulation 37.2 (a)(ii) of Supply Code – 2007 which laid down the procedure in this regard is as under:-
“(ii)In case where a consumer is suspected to have indulged/indulging in electricity by tampering theft with of the meter/metering equipment and/or its seals or otherwise then such equipment shall be sealed by the Authorized Officer so as to keep it as 'in found condition'. The consumer or his representative will also be permitted to affix his seal at that time.”
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This is also an admitted fact that meter was not taken into the possession. No photography or videography of the incident was conducted. Though, a CD regarding videography was produced by PW1-Kulwant Singh during his testimony; but it was rightly rejected by the learned Court as no mention of any such videography was made in the checking report while admittedly, it was procedurally mandated to record any such activity in the checking report.
12.In view of the discussion made above and on the basis of conjoint consideration of all the aspects, in my considered opinion, prosecution has failed to prove its case beyond reasonable doubts, therefore, the present appeal is allowed and appellant is acquitted of the charges in the present case.”
Once the petitioner has been acquitted of the charges leveled against him, the petitioner gets the right to be reinstated into service. The dismissal is not on the basis of having proved the charge in the departmental inquiry and it is the case of the respondents that after the petitioner submitted his reply, the charge-sheet issued to the petitioner was kept pending. It is also not disputed that the petitioner was dismissed from service, vide order dated 23.02.2017 (Annexure P-5), solely on account of his conviction by the learned Judge, Special Court, Sri Muktsar Sahib, vide judgment dated 24.01.2017 (Annexure P-4). Thus, the dismissal was not founded upon any independent finding of guilt recorded in departmental proceedings. The entire basis of the order of dismissal was the conviction suffered by the petitioner in the criminal case. The said conviction, however, no longer survives. This Court in CRA-S-625-SB-2017, vide judgment dated 08.06.2023 (Annexure P-9), examined the matter on merits and acquitted the petitioner. While doing so, this Court specifically noticed material deficiencies in the inspection and seizure procedure and ultimately recorded a categorical finding that the prosecution had failed to prove its case beyond reasonable doubt. Once the conviction, which constituted the sole foundation for the order of dismissal, has been set aside and the petitioner has been acquitted of the charges leveled against him by this Court, the very basis on which the petitioner was dismissed from service stands extinguished.
The contention of the respondents that the order dated 15.10.2020 (Annexure P-7) passed by the Appellate Authority was not challenged by the petitioner before his acquittal also does not advance their case. The petitioner had, in fact, challenged the said order by filing CWP-23330-2021, which was permitted to be withdrawn with liberty to approach this Court after the decision of his criminal appeal. The petitioner thereafter approached the respondents immediately upon his acquittal and sought reinstatement. The subsequent acquittal of the petitioner by this Court on 08.06.2023 (Annexure P-9) constitutes a material change in circumstances. The respondents were, therefore, required to reconsider the petitioner's claim in the light of the judgment of acquittal. The rejection of the petitioner's representation merely by relying upon the earlier order dated 15.10.2020 (Annexure P-7), without considering the effect of the subsequent acquittal, cannot be sustained.
In view of the above discussion, the order dated 23.02.2017 (Annexure P-5) dismissing the petitioner from service cannot be sustained. The consequential order dated 15.10.2020 (Annexure P-7) passed by the Appellate Authority and the subsequent communication dated 06.11.2023 (Annexure P-12), conveyed vide letter dated 29.11.2023 (Annexure P-13), rejecting the petitioner's claim for reinstatement, are also liable to be set aside.
The question which now arises is as to the extent of consequential monetary benefits to which the petitioner is entitled. In Raj Narain's case (supra), relied on by the petitioner, the Hon'ble Supreme Court considered the entitlement of an employee to back wages upon his acquittal in criminal proceedings and held that such claim has to be examined having regard to the circumstances in which the employee was kept out of service. The Hon'ble Supreme Court approved the grant of back wages from the date of acquittal till the date of reinstatement and also held that the appellant therein was entitled to full salary for the period during which he remained under suspension.
At the same time, in Union of India and others v. Jaipal Singh, (2004) 1 SCC 121, relied on by the respondents, the Hon'ble Supreme Court examined the claim for consequential monetary benefits where the employee had been dismissed from service on account of his involvement in a criminal case and was subsequently acquitted. The Court held that, where the employee was kept out of service on account of his own conduct leading to his prosecution, he could not, merely because of his subsequent acquittal, claim full back wages for the entire period during which he remained out of service. The entitlement to consequential monetary benefits, therefore, has to be determined having regard to the facts and circumstances of each case and the reason for which the employee remained out of service.
The facts of the present case, however, stand on a somewhat different footing. The departmental enquiry initiated against the petitioner was never concluded and the order of dismissal was founded exclusively upon his conviction in the criminal case. The said conviction was subsequently set aside by this Court and the petitioner was acquitted vide judgment dated 08.06.2023 (Annexure P-9). Thereafter, the petitioner sought his reinstatement, but the respondents, despite being aware of his acquittal, declined to reconsider his case and continued to deny him the benefit of reinstatement in service. Thus, the continued exclusion of the petitioner from service after 08.06.2023 was no longer attributable to the criminal proceedings or to any subsisting finding of guilt, but was a consequence of the respondents’ failure to take consequential action following his acquittal.
In the light of the aforesaid decisions, the claim of the petitioner for back wages for the entire period commencing from the date of dismissal cannot be accepted merely on the ground that he was subsequently acquitted. The appropriate relief would be to grant the petitioner back wages from the date of his acquittal, i.e. 08.06.2023 (Annexue P-9), till the date of his actual reinstatement. This approach also balances the equities between the parties while ensuring that the petitioner is not deprived of salary for the period during which, despite having been acquitted, the respondents continued to deny him reinstatement.
Consequently, the present writ petition is allowed. The order dated 23.02.2017 (Annexure P-5), whereby the petitioner was dismissed from service; order dated 15.10.2020 (Annexure P-7) passed by the Appellate Authority, rejecting the petitioner’s appeal; communication bearing Memo No.35718 dated 06.11.2023 (Annexure P-12), conveyed to the petitioner vide letter dated 29.11.2023 (Annexure P-13), rejecting the petitioner's representations dated 26.06.2023 (Annexure P-10) and 21.11.2023 (Annexure P-11), are hereby quashed. The respondents are directed to reinstate the petitioner in service. The petitioner is also held entitled to back wages from 08.06.2023, i.e. the date of his acquittal, till the date of his actual reinstatement. The respondents are directed to calculate and release the arrears of back wages payable to the petitioner, within a period of three months from the date of receipt of a certified copy of this order.