Hon'ble Dinesh Maheshwari,J.
(Delivered by Hon'ble Dinesh Maheshwari, J.) This intra court appeal is directed against the order dated 04.08.2014 passed in Writ A No. 13867 of 2010 whereby, the learned Single Judge of this Court has rejected the claim of the petitioner appellant for back wages and counting of service from the date of dismissal (for his conviction in a criminal case) i.e., 26.08.1995 to the date of reinstatement (after he was acquitted) i.e., 27.11.2007.
The relevant factual aspects are not much in dispute. The petitioner-appellant was working on the post of clerk since 31.01.1978 with the respondent-bank; and was promoted to the post of Special Assistant in the year 1985. An F.I.R. came to be lodged upon unnatural death of a lady Smt. Sunita Bharti, who was married to the appellant earlier; but was later on allegedly married to the other accused Bhagwan Singh. Though the appellant was not named initially in the said F.I.R., but was implicated later on.
In connection with the said criminal matter, the appellant was arrested on 28.11.1986 and the bank proceeded to suspend him from service on 27.11.1986. He was released on bail and the bank proceeded to revoke the suspension order on 27.03.1987. However, the appellant was convicted under Sections 306, 120-B, IPC by the Additional Sessions Judge, Agra in his judgment and order dated 26.08.1995 passed in S.T. No. 366 of 1987; and he was sentenced, inter alia, to 7 year's rigorous imprisonment. In view of this conviction, the bank proceeded to dismiss the appellant from service in terms of the provisions contained in Chapter XI, Regulation 21 Clause 3(a) of the Canara Bank Service Code. Against the conviction and sentence, the appellant preferred an appeal bearing No. 1488 of 1995, which was considered and allowed by a learned Single Judge of this Court on 14.05.2007; and the appellant was acquitted. In view of this acquittal, the bank proceeded to reinstate the appellant in service on 27.11.2007, but without back wages while treating the period from 26.08.1995 to 27.11.2007 as the period "not spent on duty". The petitioner-appellant preferred Writ Petition No. 12701 of 2008 in this Court which was disposed of on 22.05.2009 requiring the respondent-bank to consider his representation where he had claimed continuance of service and back wages. The representations of the appellant were considered and rejected by the respondent-bank on 01.01.2010, inter alia, with the following observations:
In view of your conviction for an offence involving moral turpitude in S.T. No. 366/87 the bank, by invoking the provision of Regulation 21 Clause 3(a) of the Canara Bank Service Code and in view of the prohibition U/s. 10(1)(i) of Banking Regulation Act dismissed you from services of the bank w.e.f. 26.08.1995.
In view of your subsequent acquittal by the Hon'ble High Court vide its judgment dated 14.05.2007 in Criminal Appeal the competent Authority reinstated you into the services of the bank vide proceedings dated 27.11.2007, treating the period of suspension, the interregnum period i.e. from the date of dismissal i.e. 26.08.1995 till the date on which you reported for your duty consequent to the reinstatement shall be treated as "Not spent on duty" and shall not be reckoned for any purpose whatsoever.
Please note that your dismissal was based on your involvement/ conviction in the Criminal Case for an offence under the provisions of Indian Penal Code involving Moral Turpitude and your reinstatement on 27.11.2007 was consequent to your acquittal in criminal Appeal filed by you. Hence in terms of Regulation 25(5) of Chapter XI of Canara Bank Service Code you have been reinstated by the competent Authority and under the above circumstances, the Regulation does not provide treating of suspension/ interregnum period between dismissal and reinstatement as "spent on duty". Moreover on the principle of "NO WORK NO PAY" no benefits is payable for the above period which is supported by various judgments of the Hon'ble Supreme Court.
In view of the above facts and circumstances of the case there are no grounds to favourably consider your representation dated 5.11.2009 & 16.1.2008 and your submissions made during the personal hearing on 9.12.2009.
Aggrieved by the aforesaid, the appellant filed the writ petition, which has been considered and dismissed by the learned Single Judge in the order impugned while observing that the bank had adopted a liberal approach in granting maximum relief to him; and he was not entitled to any further relief. Learned Single Judge has, inter alia, observed as under:
It is the petitioner's contention that since no disciplinary proceeding was initiated against him by the bank, this period in the interregnum should be counted towards his years of service in the bank in order that he may get the benefit of these years while calculating his pension.
While making this prayer, the petitioner has not been able to show any reason why even though these years were spent by the petitioner in pursuing his criminal proceedings they should be counted towards his years of service. On the contrary the relevant regulation itself provides that even in a case of acquittal it is solely the discretion of the Chief General Manager or the authority concerned to give reliefs in this aspect and while considering the prayers and representation of the petitioner the authority concerned by the impugned order dated 01.01.2010 has rejected this contention of the petitioner stating clearly that his dismissal was clearly based on his involvement/conviction in a criminal case under the provisions of the Indian Penal Code involving moral turpitude. His reinstatement was duly made by the competent authority after acquittal after also taking into account the fact that the regulation does not provide the treating of suspension period between dismissal and reinstatement as a period "Spent on Duty". Moreover, it is admitted fact that the petitioner did no work during this period and, therefore, no money would also be admissible to him on the principle of no work no pay.
Having heard learned Counsels on both side and having perused the regulation as well as its interpretation made by the competent authority in the impugned order there is no doubt in my mind that the petitioner has been given a fair opportunity of hearing and also the maximum relief that the bank could have given him in these circumstances. In fact the bank has adopted a extremely liberal approach while granting relief to the petitioner. The reliefs as sought by the petitioner in this petition, therefore, are not admissible at all to him and this Court is unable to give him any further relief other than what has also been granted by the bank. This is, therefore, not a fit case for interference under Article 226 of the Constitution of India. It is dismissed.
Seeking to question the order so passed by learned Single Judge, learned counsel for the appellant has submitted that in the present case, the appellant had unfortunately been involved in a criminal case relating to the suicidal death of his ex-wife who had, in fact, remarried after severance of ties with him; and the appellant was erroneously convicted by the trial court on 26.08.1995 but was ultimately acquitted by this Court on 27.11.2007. Learned counsel has strenuously argued that the appellant was not even remotely concerned with the matter where he got untangled unnecessarily and, looking to the facts and circumstances, he was entitled to be reinstated with back wages; or at any rate, with other consequential benefits. It is submitted that since no disciplinary proceeding was initiated against the appellant, the interregnum period, from the date of his dismissal until the date of reinstatement, ought to be counted towards his years for service in the bank. Learned counsel for the appellant also submitted that it was an erroneous order of the bank authority to put him under suspension when the so called offence was not regarding his discharge of duties with the bank; and it is entirely unjustified to penalize him with denial of back wages and continuance of service. The learned counsel has referred to and relied upon the decisions in Gurpal Singh Vs. High Court of Judicature of Rajasthan, (2012) 13 SCC 94, State Bank of India and another Vs. Mohammed Abdul Rahim, (2013) 11 SCC 67 and State of Kerala and others Vs. E. K. Bhaskaran Pillai, (2007) 6 SCC 524.
Per contra, learned counsel for the respondent bank has duly supported the order impugned and submitted that in the indisputable fact situation where the appellant was convicted by the trial court on 26.08.1995, the bank had rightly dismissed him from service in terms of its Service Code and rather, could not have retained him in service for the prohibition contained in Section 10(1)(b)(i) of the Banking Regulation Act, 1949. Learned counsel further contended that after allowing of the appeal and his acquittal, the bank had the option either to proceed against the appellant departmentally or to reinstate him; and looking to the circumstances, instead of proceeding departmentally, he was reinstated. Thus, according to the learned counsel, dealings of the respondent bank with the appellant had been in accordance with Regulation 21(5) of the Service Code and do not suffer from any illegality. The learned counsel contended that the appellant having remained out of service from 26.08.1995 to 27.11.2007, this interregnum could not have been treated as the period spent on duty and on the principle of no work no pay, no benefit was available to the petitioner. The learned counsel submitted that the representation of the petitioner filed in terms of the earlier order passed by this court has been disposed of by a detailed and reasoned order and no case for interference is made out.
We have given thoughtful consideration to the rival submissions and have examined the record.
The respondent bank has essentially referred to Regulation 21(3)(a) of the Canara Bank Service Code as also Section 10(1)(b)(i) of the Banking Regulation Act, 1949 to justify its action of dismissing the appellant from service with effect from 26.08.1995, on his conviction by a criminal court. Indisputably, the appellant was acquitted by this Court in the judgment dated 14.05.2007 rendered in Criminal Appeal No. 1488 of 1995. The appellant was, thereafter, reinstated in service in the bank proceedings dated 27.11.2007 but with the stipulation that the period of suspension, the interregnum period from the date of dismissal until the appellant's reporting on duty consequent to reinstatement shall be treated as "not spent on duty"; and shall not be reckoned for any purpose whatsoever. For this stipulation, the respondent bank has relied upon Regulation 21(5) of the Chapter XI of the Service Code. It is suggested that in terms of the said Regulation, the bank had the option either to proceed against the appellant departmentally or to reinstate him but the bank has been liberal towards the appellant and, instead of proceeding against him departmentally, he was reinstated but then, the period, which he did not spend on duty, could not have been counted for any purpose. Having regard to the submission made, it appears appropriate to take note of the relevant law applicable to the case.
The relevant provision contained in clause (b)(i) of Section 10(1) of the Banking Regulation Act, 1949 reads as under:
".....10. Prohibition of employment of managing agents and restrictions on certain forms of employment.-(1) No banking company-
(b) Shall employ or continue the employment of any person-
(i) who is, or at any time has been, adjudicated insolvent, or has suspended payment or has compounded with his creditors, or who is, or has been, convicted by a criminal court of an offence involving moral turpitude; or....." ......................
Regulation 21 in Chapter XI of the Canara Bank Service Code reads as under:-
21(1). For the purpose of this Regulation the expression "offence" shall mean any offence involving moral turpitude for which an employee is liable to conviction and sentence under any provision of law.
(2)(a) If in the option of the Deputy General Manager of Circle Office / International Division / Inspection Department / Assistant General Manager of Personnel Wing, Head Office, any employee of the Bank has committed an offence, unless the employee be otherwise prosecuted, the Deputy General Manager of Circle Office / International Division / Inspection Department / Assistant General Manager of Personnel Wing, Head Office, may either himself take steps to prosecute the employee or get him prosecuted or direct any officer of the Bank, competent to enquire into any misconduct of the said employee to take steps to prosecute the employee or get him prosecuted.
(b) If the opinion of a Branch Manager any employee working under him in his branch, office or department, as the case may be, has committed an offence, he shall at once report the matter to the Deputy General Manager of Circle Office / International Division / Inspection Department / Assistant General Manager of Personnel Wing, Head Office, with full particulars. It it appears to the Deputy General Manager of Circle Office / International Division / Inspection Department / Assistant General Manager of Personnel Wing, Head Office, that there are prima facie grounds for the Branch Manager's opinion, he may, unless the employee be otherwise prosecuted direct the Branch Manager to take steps to prosecute the employee or get him prosecuted.
(3) If on a prosecution instituted against an employee [under clause (2) of this Regulation:]
(a) the employee is convicted, he may be dismissed with effect from the date of his conviction or be given any lesser punishment mentioned in Regulation 4 of this Chapter or be discharged as provided in Regulation 11 of this Chapter:
(b) the employee is acquitted, it shall be open to the Deputy General Manager of Circle Office / International Division / Inspection Department / Assistant General Manager of Personnel Wing, Head Office, to proceed against him under the provisions set out herein above regarding misconducts. If after enquiry it is decided not to continue the employee in service, he shall be liable only for termination of service with three month's pay and allowances in lieu of notice; and he shall be deemed to have been on duty during the period of suspension, if any, and shall be entitled to full pay and allowances minus such subsistence allowance as he was drawn and all other privileges for the period of suspension.
Provided that if the employee be acquitted by being given the benefit of doubt, he may be paid such portion of such pay and allowances as the Deputy General Manager of Circle Office / International Division / Inspection Department / Assistant General Manager of Personnel Wing, Head Office, may deem proper and the period of his absence shall not be treated as period spent on duty unless the Deputy General Manager of Circle Office / International Division / Inspection Department / Assistant General Manager of Personnel Wing, Head Office, do directs.
(4) For awarding punishment under sub-clause (a) of clause (3) of this Regulation no enquiry as prescribed by Regulation 7 and 9 of this Chapter shall be necessary. Any punishment under clause (3) of this Regulation shall be imposed only by a Disciplinary Authority. If no punishment is proposed to be imposed, the Disciplinary Authority shall pass an order to that effect.
(5) If the employee prefers an appeal or revision application against his conviction and is acquitted on such appeal or revision, in case he has already been dealt with as above, he may apply within 2 months from the date of such acquittal to the Disciplinary Authority for reconsideration of his case and the Disciplinary Authority shall review his case and may either reinstate him or pass orders that he may be proceeded against as provided in sub-clause (b) of clause (3) of this Regulation...
In the case of Gurpal Singh (Supra), the Hon'ble Supreme Court considered the matter of a Judicial Officer who was suspended for having remained in police custody for more than 48 hours. The petitioner therein was ultimately acquitted by the trial court finding it to be a case of no evidence. The suspension of the petitioner continued even during the pendency of the appeal against acquittal, however, ultimately, the appeal was also dismissed. The High Court, on the administrative side, however took a decision to initiate departmental proceedings against the petitioner. Even in the departmental enquiry, the charge against the petitioner was not proved and he was exonerated though his suspension continued. The Hon'ble Supreme Court found it unjustified that his suspension was continued during the pendency of such departmental proceedings and hence, he was held entitled to all consequential benefits by treating him on duty w.e.f. the date of dismissal of appeal against acquittal. Therein, the Hon'ble Supreme Court has indicated unavailability of any hard and fast rule if an employee would be entitled to full back wages or no back wages upon reinstatement. The Hon'ble Supreme Court has, inter alia, observed in the said decision as follows:
"..........34. Similarly the judgments cited by Mr. Shishodia reiterate the principle that "no-hard-and-fast rule" can be laid down as to whether on reinstatement the employee is entitled to full back wages or no back wages at all. All the cases reiterated the principle that the facts and circumstances of each case have to be examined by the authority concerned. It has to take an informed decision on the basis of the material on record. These judgments also reiterate that acquittal of an employee would not automatically entitle him to reinstatement or to payment of full back wages. The power is normally vested with the disciplinary authority to hold a departmental enquiry, even upon conclusion of the criminal trial where the employee is acquitted......."
The case of E.K. Bhaskaran Pillai (Supra) had been for consequential benefits in the case of wrongful denial of promotion. In Mohd. Abdul Rahim (Supra), the Hon'ble Supreme Court has observed and held as under:
....9. In the present case, the respondent was acquitted by the appellate court. There can be no manner of doubt that the said acquittal would relate back and the initial order of conviction would stand obliterated. On that basis, there can be no manner of doubt that the substratum of the cause that had led to the respondent's dismissal / discharge in the present case had ceased to exist. The same would entitle him to be reinstated in service, an act that has been duly performed by the appellant bank.
10. The issue relating to entitlement to back wages, however, stands on a somewhat different footing. While in Ranchhodji Chaturji Thakore, Jaipal Singh and Baldev Singh, the basis of refusal of back wages by this Court would appear to be the inability of the employer to avail of the service of the employee due to his incarceration in jail, in Banshi Dhar the refusal of back wages by this Court was in a situation largely similar to the case before us, namely, where the employee was all along on bail and was thus available for work.
11.In Banshi Dhar this Court answered the question against the employee by holding that grant of back wages is not automatic and such an entitlement has to be judged in the context of the totality of the facts of a given case. It is on such consideration that back wages were declined. In the present case, it will not even be necessary for the Court to perform the said exercise and delve into the surrounding facts and circumstances for the purpose of adjudication of the entitlement of the respondent to back wages in view of the provisions of Section 10(1)(b)(i) of the Act. The said provisions impose a clear bar on a banking company from employing or continuing to employ a person who has been convicted by a criminal court of an offence involving moral turpitude. No discussion as to the meaning of the expression "moral turpitude" is necessary having regard to the nature of the offences alleged against the respondent namely, under Section 498-A IPC and Section 4 of the Dowry Prohibition Act, 1961. No doubt , the respondent was not in custody during the period for which he has been denied back wages inasmuch as the sentence imposed on him was suspended during pendency of the appeal. But what cannot be lost sight of is that the conviction of the respondent continued to remain on record until it was reserved by the appellate court on 22.02.2002. During the aforesaid period there was, therefore, a prohibition in law on the appellant Bank from employing him. If the respondent could not have remained employed with the appellant Bank during the said period on account of the provisions of the Act, it is difficult to visualize as to how he would be entitled to payment of salary during that period........
Having examined the record with reference to the law applicable, we have clearly of the view that the case of the appellant has not been examined by the respondent bank in its true and correct perspective; and the matter deserves to be restored for reconsideration of authorities concerned.
The representations made by the appellant on 16.01.2008 and 05.11.2009 were required to examined by the authorities concerned dispassionately and objectively. It has repeatedly been asserted that under Regulation 21(5), disciplinary authority might have reinstated the appellant or could have ordered any other proceeding against him as per sub clause (b) of Regulation 21(3). The said sub clause (b) of Regulation 21(3) is in two parts. As per the first, upon acquittal of the employee he could be proceeded against under the provisions regarding misconduct; and if after an enquiry, it is decided not to continue him in service, the employee would be liable for termination for service with three months' pay and allowances in lieu of notice with other stipulation regarding period of suspension. As per the second part of the said sub clause (b) of Regulation 21(3), the employee, on being acquitted with benefit of doubt, may be paid such portion of pay and allowance as the referred authorities may deem proper and the period of his absence shall not be treated as a period spent on duty unless the referred authorities so direct. As per Regulation 21(1), the offence for the purpose of Regulation 21 is the one of moral turpitude. Even as per Section 10(1)(b)(i) of the Banking Regulation Act, 1949, the prohibition in employment relates to a person who is or has been convicted by a criminal court of an offence involving moral turpitude.
The core question to be examined by authorities concerned, thus, had been as to whether the appellant was involved in and convicted of an offence involving moral turpitude. The authorities appear not to have adverted to this aspect at all.
Though ordinarily the judgment of the criminal court in such matters carry relevance only to the extent of showing that there had been an acquittal in the criminal case but, looking to the nature of controversy, where the nature of offence alleged has its own relevance, it appears apposite to take note of the salient feature of the said criminal case, particularly such parts which have a co-relation with the appellant.
It is borne out from the judgment of this Court dated 14.07.2007 that the deceased Smt. Sunita Bharti though was married to the appellant in the month of April, 1980 but got separated and the appellant allegedly contacted other marriage. The said Smt. Sunita Bharti had filed the cases for recovery of amount for maintenance as also for the offence under Section 494 IPC against the appellant. However, on the other hand, the said Sunita Bharti got married to the other accused of the criminal case Shri Bhagwan Singh. The case of the prosecution had been that Bhagwan Singh and his family members had been ill-treating the deceased, who died in unnatural circumstances on 09.11.1986 wherefor, her maternal uncle lodged a first information report in which, Bhagwan Singh and his family members were named as the accused persons. A month after lodging of the F.I.R., the appellant was also implicated in the case on the allegations that because of his litigation with the deceased and her family members, he had been involved in hatching conspiracy for her ill-treatment. The F.I.R. was initially registered for the offences under Sections 302, 498-A IPC but ultimately, charge-sheet was filed for the offence under Section 306 IPC. The appellant was charged with the aid of Section 120-B IPC.
In the criminal case, it was specifically found that Smt. Sunita Bharti committed suicide by consuming poison. However, while the other accused Bhagwan Singh was convicted by the trial court for the offence under Section 306 and 498-A IPC, the appellant was convicted for offence under Section 306 read with Section 120-B IPC. The case of the prosecution was essentially of the ill-treatment of the deceased Smt. Sunita Bharti by Bhagwan Singh and his other family members which led to her unnatural death on 08.11.1986 within one year of her marriage with Bhagwan Singh. This Court clearly found in appeal that there had been nothing on record to show if there was any harassment of the deceased and that she committed suicide for being in depression after her marriage with Bhagwan Singh; and she was rather disillusioned with the conduct of her father. With these findings, this court acquitted both the accused including the appellant.
We have referred to the subject matter of the said criminal case and findings of the appellate court only to indicate that in the given set of circumstances, it is very difficult to assume that the appellant had been involved in an offence involving moral turpitude.
It had, of course, been a matter of fact that he was convicted by the trial court but such an error got rectified in the judgment of the appellate court, which, though unfortunately took a longer time and came only in the year 2007.
In the above circumstances, if the suggested proposition of the bank, of adopting the course of disciplinary proceeding against the appellant after his acquittal as per Regulations 21(3) & 21 (5) is examined, a very serious question arises as to whether there was anything available with the department which would have, even remotely, justified any disciplinary proceedings ? The obvious answer, in our view, is in the negative.
Having examined the order passed the authorities concerned in disposal of the representation of the appellant, we find that the above mentioned relevant and material aspects of the matter have not even been adverted to.
In present matter, the decision of the respondent bank on 27.11.2007, to reinstate the appellant, was obviously a justified one. However, when there was nothing wherefor the department could have subjected him to disciplinary proceeding; and unfortunately, the involvement of the appellant had been in a case where even his remote connectivity with the alleged crime was seriously questionable, then, the question arises as to whether there was any justification for treating the interregnum i.e. period between dismissal for conviction and reinstatement after acquittal as lost for all purposes ? As laid down by the Hon'ble Apex Court, every case is required to be examined on its own facts and circumstances. We are clearly of the view that in the present case, the prayers of the appellant could not have been brushed aside with an abstract reference to the fact that he has not worked during the interregnum. However, the bank has not examined all the relevant aspects of the matter including the question as to why the appellant was not entitled to continuity of service; and as a necessary corollary, why the said interregnum could at least be not considered qualifying for pensionary purposes ?
All the relevant aspect of the matter having not been examined by the bank authorities in accordance with law, we are unable to endorse the views of the learned Single Judge that the bank had already adopted a liberal approach towards the appellant.
In our view, the interest of justice demands that the decision on the representations of the appellant by respondent bank on 01.01.2010 be disapproved and the matter be remitted for consideration of the representations afresh with reference to the observations made in this judgment.
Accordingly and in view of the above, impugned order dated 04.08.2014 passed in Writ A No. 13867 of 2010 is set aside; writ petition filed by the appellant is allowed in the manner that the order passed by the respondent bank on his representations on 01.01.2010 is set aside. The representations of the appellant dated 05.11.2009 and 16.01.2008 shall be re-considered by the respondent bank keeping in view the observations foregoing.
No costs.