• Turning down request to treat suspension period as on duty

Respected Sir/ Madam, I am a Central Government servant. In the year 2012 a Criminal Complaint U/s 498A, 323 & 506 was lodged against me by my wife. I was arrested by the police and had to remain for 118 days in judicial custody. I was suspended during this period and was in receipt of subsistence allowance. After getting bail my suspension was revoked. I joined the service. In the year 2015 Hon'ble High Court quashed the case based on mutual compromise between me and my wife. I submitted the order of the court to my office. The Disciplinary Authority after issuing a show cause and receiving my representation against the same has decided to TREAT THE PERIOD OF SUSPENSION (118 DAYS) BE AS SUCH IN ACCORDANCE WITH FR 54-B AND THE PAYMENT RESTRICTED TO SUBSISTENCE ALLOWANCE ALREADY DRAWN BY ME citing it was not an 'honourable acquittal' but a 'compromise settlement' and the charges levied against me were serious. My Humble query is :
i) Is the decision of Disciplinary Authority good in the eyes of law ?
ii) Will approaching the Hon'ble CAT be fruitful ?
iii) Is it necessary to inform my office BEFORE moving to the CAT ? 
Kindly guide and help me.
Asked 7 years ago in Labour

Ask a question and receive multiple answers in one hour.

Lawyers are available now to answer your questions.

3 Answers

1) the decision of disciplinary authority is sustainable in law

2) it has been held by the Apex Court in 'State Bank of India and another versus Mohammed Abdul Rahim, 2013(4), Recent Service Judgments, 614' wherein it was held as under:- Singh Gurpreet 2014.07.17 11:07 "In the present case, the respondent was acquitted by the 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 respondents 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.

The issue relating to entitlement to back wages, however, stands on a somewhat different footing. While in Ranchhodji Chatuiji Thakore (supra), Jaipal Singh (supra) and Baldev Singh (supra), 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 (supra), 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. In Banshi Dhar (supra), 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 was 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 Singh Gurpreet purpose of adjudication of the entitlement of the 2014.07.17 11:07 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 of the 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 in as much as the sentence imposed on him was suspended during the 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 reversed 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 visualise as to how he would be entitled to payment of salary during that period. His subsequent acquittal though obliterates his conviction, does not operate to retrospectively wipe out the legal consequences of the conviction under the Act. The entitlement of the respondent to back wages has to be judged on the Singh Gurpreet aforesaid basis. His reinstatement, undoubtedly, became 2014.07.17 11:07 due following his acquittal and the same have been granted by the appellant-bank.

The respondent was acquitted on 22.02.2002; the demand for reinstatement was made by him on 22.4.2002 and he was reinstated in service by the appellant bank on 7.11.2002. On the view that we have taken, at the highest, what can be said in favour of the respondent is that he is entitled to wages from the date he had lodged the demand for the same following his acquittal, namely, from 22.4.2002, until the date of his reinstatement, if the same has not already been granted by the appellant-bank."

3) it may not be fruitful to file case before CAT

Ajay Sethi
Advocate, Mumbai
95205 Answers
7607 Consultations

5.0 on 5.0

Punjab-Haryana High Court

Hardeep Kaur vs State Of Punjab And Another on 11 July, 2014

Civil Writ Petition No. 1452 of [deleted]-

In the High Court of Punjab and Haryana at Chandigarh

Civil Writ Petition No. 1452 of 2014

Date of Decision: 11.7.2014.

Hardeep Kaur .......Petitioner

Versus

State of Punjab and another ......Respondents

CORAM: HON'BLE MRS. JUSTICE SABINA

Present: Mr. S.S.Tiwana, Advocate

for the petitioner.

Mr. Sushant Maini, DAG, Punjab.

Mr. S.S.Behl, Advocate

for respondent No. 2.

****

SABINA, J.

Petitioner has filed this petition challenging the order dated 16/18.7.2013 (Annexure P-1) whereby she was removed from service on account of her conviction in a criminal case.

Learned counsel for the petitioner has submitted that petitioner was appointed as a helper on 4.8.2004. Services of the petitioner were regularized vide letter dated 25.8.2005 with effect from 4.8.2004. FIR No. 114 dated 4.7.2007 was registered against the petitioner under Section 420 read with Section 34 of the Indian Penal Code, 1860 at Police Station Phase-1, Mohali. In this regard, petitioner faced trial and was convicted and sentenced by the Trial Court vide judgment/order dated 27.4.2013. In view of the conviction/sentence order passed by the Trial Court, petitioner was removed from service vide order Annexure P-1. However, in appeal, Singh Gurpreet 2014.07.17 11:07 I attest to the accuracy and integrity of this document chandigarh petitioner has earned her acquittal. Therefore, petitioner was liable to be reinstated in service. In this regard, petitioner approached the respondents vide Annexure P-4 but no action was taken on the same. Since the petitioner had been acquitted in the criminal proceedings, she was liable to be reinstated in service.

Learned counsel for respondent No. 2, on the other hand, has submitted that petitioner had been merely acquitted on account of the fact that the offence was compounded on the basis of compromise effected between the parties. Therefore, petitioner was not liable to be reinstated in service.

Facts in the present case are not in dispute. Petitioner faced trial in FIR No. 114 dated 4.7.2007 and was convicted and sentenced qua commission of offence punishable under Section 420 IPC. On account of her conviction in the criminal case, petitioner was removed from service vide order Annexure P-1. Thus, it is not the case where the department had held any disciplinary proceedings against the petitioner before passing the order Annexure P-1. Rather, the petitioner was removed from service on account of her conviction in the criminal case. Petitioner filed an appeal against the judgment/order dated 27.4.2013 whereby she had been convicted and sentenced qua commission of offence punishable under Section 420 IPC. In appeal, the matter was compromised by the petitioner with the complainant party and, consequently, she was acquitted by the Appellate Court vide order dated 11.9.2013 (Annexure P-2).

It has been held by the Apex Court in 'State Bank of India and another versus Mohammed Abdul Rahim, 2013(4), Recent Service Judgments, 614' wherein it was held as under:- Singh Gurpreet 2014.07.17 11:07 "In the present case, the respondent was acquitted by the I attest to the accuracy and integrity of this document chandigarh 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 respondents 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.

The issue relating to entitlement to back wages, however, stands on a somewhat different footing. While in Ranchhodji Chatuiji Thakore (supra), Jaipal Singh (supra) and Baldev Singh (supra), 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 (supra), 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. In Banshi Dhar (supra), 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 was 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 Singh Gurpreet purpose of adjudication of the entitlement of the 2014.07.17 11:07 I attest to the accuracy and integrity of this document chandigarh 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 of the 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 in as much as the sentence imposed on him was suspended during the 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 reversed 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 visualise as to how he would be entitled to payment of salary during that period. His subsequent acquittal though obliterates his conviction, does not operate to retrospectively wipe out the legal consequences of the conviction under the Act. The entitlement of the respondent to back wages has to be judged on the Singh Gurpreet aforesaid basis. His reinstatement, undoubtedly, became 2014.07.17 11:07 I attest to the accuracy and integrity of this document chandigarh due following his acquittal and the same have been granted by the appellant-bank.

The respondent was acquitted on 22.02.2002; the demand for reinstatement was made by him on 22.4.2002 and he was reinstated in service by the appellant bank on 7.11.2002. On the view that we have taken, at the highest, what can be said in favour of the respondent is that he is entitled to wages from the date he had lodged the demand for the same following his acquittal, namely, from 22.4.2002, until the date of his reinstatement, if the same has not already been granted by the appellant-bank."

Since the petitioner has earned her acquittal in the criminal proceedings, she is liable to be reinstated. The criminal offence committed by the petitioner was not in relation to her official duties but was with some private persons.

Accordingly, this petition is allowed. Order dated 16/18.7.2013 (Annexure P-1) is quashed. Petitioner is ordered to be reinstated in service with effect from the date she served the representation (Annexure P-4) with all consequential benefits. Petitioner would not be entitled to the relief of back wages for the period she remained out of service on account of her involvement in the criminal case till the date she served the representation (Annexure P-4).

(SABINA) JUDGE July 11, 2014 Gurpreet Singh Gurpreet 2014.07.17 11:07

Ajay Sethi
Advocate, Mumbai
95205 Answers
7607 Consultations

5.0 on 5.0

1. The decision of the disciplinary authority is prima facie sound in law. When a criminal proceeding is quashed on the basis of a compromise it is not a judicial affirmation of the falsity of the case or the innocence of the accused. It simply means that the complainant does not wish to prosecute the case further.

2. Going to CAT will be an exercise in futility. Be that as it may, consult a lawyer once with a copy of the HC order and the disciplinary authority's order.

Ashish Davessar
Advocate, Jaipur
30763 Answers
972 Consultations

5.0 on 5.0

Ask a Lawyer

Get legal answers from lawyers in 1 hour. It's quick, easy, and anonymous!
  Ask a lawyer