The writ petition no. 42027 of 2005 has been filed challenging the award of the Labour Court, Bareilly dated 4.11.2004 in adjudication case no. 31 of 1999. The dispute referred vide Government Order dated 26.2.1999 was as to whether the termination of services of the respondent no.2 namely Bheem Sen son of Hori Lal, class IV employee with effect from 23.1.1980 was legal or not.
In the connected writ petition no. 42028 of 2005, the award dated 2.11.2004 passed by the Labour Court, Bareilly is under challenge. In the said case also the dispute referred vide Government Order dated 26.2.1999 was as to whether the termination of services of respondent no.2 Sita Ram son of Shri Ram Dayal from the post of peon with effect from 23.1.1980 was legal or not.
Both the employees, namely, Bheem Sen and Sita Ram respondent no.2 in the connected writ petitions were class IV employees in the petitioner institution. They were terminated by a common order dated 29.1.1980 on the ground that they were convicted and sentenced for life imprisonment in Sessions trial no. 143 of 1979 for the offence under Sections 302 and 304 I.P.C. by judgment and order dated 22.1.1980 passed by the IV Additional District and Sessions Judge, Bareilly. Both the respondent no.2,namely, Bheem Sen and Sita Ram filed criminal appeal no. 316 of 1980(Bheem Sen and another Vs. State of U.P.) before this Court challenging the order of conviction dated 22.1.1980 passed by the Sessions Court. The appeal was allowed by the judgement and order dated 15.7.1998 and they were honourably acquitted by the appellate court. After acquittal they had approached the petitioner for their reinstatement. They were denied the same and as such they had raised industrial dispute which was referred by two separate referral order of the same date i.e. 26.2.1999.
The Labour Court, Bareilly passed two separate awards in favour of both the employees which are under challenge, in the two connected writ petition.
As the controversy involved in both the writ petitions, in substance, is same and hence both the writ petitions are being decided by this common judgement.
In so far as the writ petition no. 42027 of 2005 is concerned, the respondent no. 2 was appointed as class IV employee on the post of Daftari in the year 1963-64 in the petitioner institution. The petitioner institution was recognized up to High School at the time of appointment of the respondent no.2.
In so far as the respondent no.2 in writ petition no. 42028 of 2005 is concerned, he was appointed as class IV employee as Chaukidar in the year 1976-77.
It may be mentioned that as in the connected writ petitions both Bheem Sen and Sita Ram are arrayed as the respondent no.2 and hence they will jointly be referred as respondents hereinafter.
The facts in brief relevant for deciding the controversy are that against respondents Bheem Sen and Sita Ram, a First Information Report was lodged under Sections 302 and 364 I.P.C. and registered as case crime no. 9 of 1979 in the police station Deorania, District Bareilly. They were implicated in the charges of kidnapping and murder. They were arrested in the aforesaid crime and therefore they were suspended by the Principal by two separate orders of the same date i.e. 27.1.1979.
The respondents Bheem Sen and Sita Ram were convicted for life imprisonment in the Sessions Trial No. 143 of 1979 by judgment and order dated 22.1.1980 passed by the IV Additional District and Sessions Judge, Bareilly. On account of said conviction, the Principal of the college by a common order dated 29.1.1980 terminated the services of respondents Bheem Sen and Sita Ram with effect from 23.1.1980. The termination order is on record as "Annexure-6" to the writ petition.
A perusal of the termination order indicates that the services of the two employees were terminated only on the ground of their conviction for life imprisonment in Sessions Trial No. 143 of 1979 by judgement and order dated 22.1.1980.
In the writ petition, it has been brought on record that after the termination of the services of respondents namely Bheem Sen and Sita Ram; two class IV employees were appointed on the vacant post namely, Harish Babu and Mehar Singh after seeking approval of the District Inspector of Schools. Harish Babu was appointed on 16.3.1980 and Mehar Singh was appointed on 26.3.1979. The permission for appointment of the incumbents as class IV employee was sought by letter dated 12.2.1979 sent to the District Inspector of Schools, who had granted approval for temporary arrangement to be made on account of suspension of the respondents Bheem Sen and Sita Ram. The record further indicates that Harish Babu was appointed on the vacant post of Daftari with effect from 17.3.1980 on temporary basis whereas Mehar Singh was appointed on temporary basis with effect from 25.3.1979 on the post of Chaukidar. The information regarding appointment of Harish Babu and Mehar Singh was sent to the District Inspector of Schools by the Principal vide letters dated 16.3.1980 and 26.3.1979; respectively. The District Inspector of Schools vide letter addressed to the Principal dated 1.5.1980 had acknowledged the documents sent for appointment of Harish Babu as Daftari.
For their reinstatement on the post of Daftari and peon, both the respondents namely Beem Sen and Sita Ram filed C.P. Case No. 61(B) of 1998 and 62(B) 1998; respectively, and matter was referred to the Labour Court by the State Government by two separate referral orders of the same date i.e. 26.2.1999 as indicated above. It was stated in the written statements filed by both the respondents-employees that after their acquittal they had submitted representations to the management of the college but no reply was received by them. Copy of the judgement of acquittal in criminal appeal no. 316 of 1980 was also sent to the institution. As no reply was received till 22.9.1988, they were constrained to raise the present dispute.
The Principal of the institution in reply to the written statement filed by the respondents-employees before the Labour Court took the stand that after removal of the respondent-employees from service, two people have already been engaged in the college as against the vacant post and now there was no vacancy in the college. Though respondents-employees have been discharged of the offence and acquitted yet a considerable time had been elapsed between the period of their removal and acquittal and further rights of two other incumbents who were appointed on the said post had accrued. As those two incumbents were appointed in the institution from the year 1979-80, as such, there was no question of reinstatement of the respondents-employees. It was also contended that when the respondents-employees were removed from service they never made representation for their reinstatement nor filed any appeal before the higher authority against their termination order. Thus, they did not challenge the order of their removal from service. In view thereof, their claim had suffered from a considerable delay and no relief could be granted to them. The Labour Court after consideration of respective submissions of both the parties and perusal of the record, recorded a finding in both the Adjudication case No. 30 of 1999 ( in the case of Sita Ram) and No. 31 of 1999 ( in the case of Bheem Sen) that admittedly no disciplinary inquiry was conducted against these employees. Their services were terminated only on the ground that they were convicted by the Sessions Court for the offence under Sections 302 and 364 I.P.C. However, conviction was set aside by the appellate court and they were honourably acquitted.
In view of the said scenario, the termination of the services of the respondents-employees would fall within the meaning of retrenchment and as the provisions of Section 6-N of U.P. Industrial Dispute Act have not been complied with, the termination order dated 23.1.1980 was clearly illegal. The respondents-employees were directed to be reinstated with effect from the date of termination i.e. 23.1.1980 along with backwages, continuity of service and all other consequential benefits.
Learned counsel for the petitioner assailing the award submits that the finding of the Labour Court for reinstatement of respondent no.2 is illegal as it was beyond the scope of Labour Court. He further submits that the labour court had no jurisdiction to entertain the dispute with regard to the educational institution. Moreover, difficulty in reinstatement of the employees concerned was clearly narrated before the Labour Court, but it did not consider the same. He further submits that the two incumbents who joined after termination of the services of the respondents-employees were neither party before the Labour Court nor in the present writ petition.In case the termination of respondents-employees were held illegal, the two incumbents Harish Babu and Mehar Singh had to go who had a right to the posts in question on account of their working in the institution for a long time.
Learned counsel for the respondent no.2 Shri Shivendra Kumar Gupta submits that admittedly the dismissal of the two respondents-employees was in consequence to the order of conviction passed by the Sessions Court. There is no dispute that no independent departmental inquiry was ever held against these delinquent employees. Once the order of conviction was set aside by the higher court in appeal, the natural consequence would be that the respondent-employees ought to have been reinstated in service, immediately. Once the order of conviction failed, the very foundation on which the order of dismissal was based disappeared. Consequently, the order of dismissal must fall with the acquittal of the respondents-appellants.
Having heard the rival submissions of the learned counsel for the parties and perused the record, this court finds that the only controversy in the present writ petition is as to whether after the acquittal of respondents -employees by the appellate court they were entitled for reinstatement in the service or not.
Admittedly these two employees were permanent employees in the petitioner institution. They were suspended and terminated only on account of their implication and conviction (later on) in the criminal case. Both the respondents were honourably acquitted by the judgement and order of this court dated 15.7.1998. As no independent departmental inquiry was conducted against them, the natural corollary would be that the request of the employees was required to be redressed by the petitioner. Since this was not done, they had to approach the labour court for redressal of their grievances.
A very important aspect of the matter which is apparent from the record is that the two incumbents namely Harish Babu and Mehar Singh were appointed on temporary basis on the approval granted by the District Inspector of Schools in order to meet the exigencies shown by the then Principal of the institution. Mehar Singh was appointed in place of Sita Ram on 25.3.1979 by the order of the Principal of the institution dated 26.3.1979 and the same was approved by the District Inspector of Schools on 13.4.1979. The letter of the Principal addressed to the District Inspector of Schools dated 26.3.1979 is on record "as annexure-9" to the writ petition. Thus it is apparent that Mehar Singh was appointed during the period of suspension of Sita Ram meaning thereby prior to his termination with effect from 23.1.1980. There is nothing on record to indicate that the interim arrangement made during the termination of the respondents- employees by temporary appointment of Harish Babu and Mehar Singh was ever converted into permanent arrangement.
This apart, it is trite law that once the order of conviction passed by the trial court is set aside by the higher court , there does not exist any conviction in the eye of law at all. Punitive action taken against the respondents-employees was based solely on the order of conviction and the removal of the order of conviction has the result of removing the entire basis of the order of termination.
This Court in 1961(2)FLR, 241 Divisional Superintendent N. Rly. Allahabad Vs. Ram Saran Das has observed that with the setting aside of the order of conviction, the very foundation on which the order of dismissal,removal or reduction in the rank must fall. In the case of G.M. Tank Vs. State of Gujarat and others reported in (2006) 5 SCC 446 the Apex Court has considered the sustainability of the departmental proceedings based on the identical and similar set of facts as in the criminal case and it was held that as there was no evidence against the employee to hold him guilty and he had been honourably acquitted in criminal trial during the pendency of the proceedings,challenging his dismissal, the same required to be taken note of and the appeal deserves to be allowed. However, payment of backwages was denied. In (2009)6 SCC 791 Basanti Prasad Vs. Chairman, Bihar School Examination Board and others, it was held that the punishment was imposed on the basis of an order of conviction having been set aside and no independent departmental inquiry was held against the delinquent employee, grievances raised by the employee's wife for monetary and service benefits payable to her late husband (who died during the pendency of litigation) could not have been rejected, resorting to a hypertechnical approach by the the high court. However, placing reliance on G.M. Tank (Supra) it was held that the appellant was not entitled to backwages. In the case of State of Uttar Pradesh and another Vs. Mahindra Nath Tiwari reported in 2010 (2) SCC 252 it was held that only question remains of back-wages as employee dismissed from the service on conviction was not reinstated on acquittal in appeal. There was delay of 22 years in filing the writ petition against the order of termination of the services of the employee. The appeal was disposed of by the Apex Court with the clarification that the employee respondent would not be entitled to back-wages.
In view of the law laid down by the Apex Court now the question remains to be decided by this court is as to what relief can be granted to the respondents-employees at this stage.
In so far as the employee Bheem Sen in writ petition no. 42027 of 2005 is concerned, it has been brought on record by way of supplementary counter affidavit filed by him that he was superannuated from the service on 31.3.2005 and he was never reinstated.
The interim order passed in writ petition no. 42027 of 2005 is that execution of the award shall remain stayed till the next date of listing. The order sheet indicates that the interim order was extended from time to time. As the respondent-employee could not be reinstated in service after termination order passed in the year 1980, this court is of the view that he is not entitled to back-wages. However it is apparent from the record that the respondent employee namely Bheem Sen son of Hori Lal had suffered on account of illegal approach of the petitioner institution.Though he was entitled for reinstatement as early as in the year 1978 when he was acquitted,yet the benefit was illegally denied to him. In view thereof in order to meet the ends of justice the court directs that in (writ petition no. 42027 of 2005) Bheem Sen son of Hori Lal be awarded a lump sum compensation of Rs. 50,000/- for the hardships and sufferance on account of illegal act of the petitioner institution.
it is,therefore, directed that, in case, the respondent no.2 Bheem Sen is entitled for any other benefit for the period of services rendered by him in the institution, the same shall also be calculated and paid to him within a period of two months from the date of production of certified copy of this order.
In so far as the case of Sita Ram (in writ petition no. 42028 of 2005) is concerned , it may be noted that in the said case the interim order dated 24.5.2005 passed by this court is as follows:-
"In the meantime, if the petitioner reinstates the respondent-workman within one month from today and ensures payment of wages regularly, the operation of the award impugned in the present writ petition dated 2nd November, 2004 shall remain stayed.
In case of default, the petitioner shall not be entitled to the benefits of this order."
It has been brought on record that pursuant to the interim order dated 24.5.2005 passed by this court, the petitioner institution allowed him to join the duties under compelled circumstances. An application dated 7.3.2011 bringing on record the said fact has been filed before this court.
Shri Dinesh Chandra Mishra, learned counsel for the petitioner also stated at bar that in pursuance of the order dated 19.4.2010 passed by the District Inspector of Schools, Mehar Singh was adjusted against the vacant post of another class IV employee with effect from 1.2.2010. The respondent Sita Ram had already joined the services on 21.6.2005 under the interim order passed by this court.
In view of the facts discussed above, this court directs that the salary of Sita Ram be paid with effect from the date of his reinstatement ie. 21.6.2005 pursuant to the interim order, if not already paid, as he has been held entitled to reinstatement after acquittal in criminal case in the year 1998. However he shall not be entitled to back-wages. It is further directed that the arrears of salary of Sita Ram along with all other consequential benefits, if any, shall be calculated and paid to him within a period of four months from the date of production of certified copy of this order, in the petitioner institution.
Consequently, both the writ petitions are allowed with the observations made above.
DATE:28.1.2014 Aks