CJf I fr? IN THE HIGH COURT OF CHATTISGRH AT BILASPUR C G WRIT PETITIONfSm No. 603$? 0f 2009 H PETITIONER / K. Sunder Raj, s/o late Shri K. Bal Raj, aged about 64 years, r/o c/o C.H. Chhinioh, Qr. No. 114/1, Banglow Yard, Bilaspur (C.G.) ‘ VERSUS Union of India Through the Secretary,Ministry of Railways, Government of India, Rail Bhavan, New Delhi. General Manager, South East Central Railways, Bilaspur (C.G.) / 3. Chief Personnel Officer, South East Central Railways, Bilaspur (C.G.) 4. Senior Divisional Personnel Officer, South East Central Railways, / Bilaspur‘ (C.G.) 226 WRIT PETITION UNDER ARTICLE %,227 OF THE . r CONSTITUTION OF INDIA W HIGH COURT OF CHHATTISGW AT BILA5; UR POR ETITINE K. Sunder Raj. RER SPONDENT Ui s. non of India & Other Iudgrnent for c‘onsidrio‘ Sdl— . Satish K. Agnihotrl Judge on’ble hri Justice Radhe Shyam Sharma 3 H S Omxb£\~/» #:7W sd/_ 11.5. Shama Judge / ost for pronouncemant of the judgment on thé /8+éa. ofJul 201 Sd/-‘ WRIT PETITION (S) No..6o98 of2009 eatn P y y, 1 HIGH COURT OF CHHATTISGARH AT BILASPUR WRIT PETITION (S) No. 6098 0f2009 \ WRIT PETITION UNDER ARTICLE 226 OF THE CONSTITUTION OF ‘ INDIA ' Coram : Hon’ble Shri Satish K. Agnihotri & Hon’ble Shri Radhe Shvam Sharma. JJ. Present: Shri Pramod Verma, Senior Advocate with Shri Raghavendra Verma, Advocate for the petitioner. Ms. Naushina Afrin Ali, Advocate for the respondents: (Delivered on .lé. ffday ofJuly, 201 1) Per SATISH K; AGNIHQTRI; J. ‘ 1. Challenge in this petition is to the order dated 17.12.2008 (Annexure P/l) passed by the Central Administrative Tribunal, Jabalpur, in O.A. No. 748/2008. In addition, a. direction to the respondents to pay full backwages with all the allowances for the period 19.1 1.19'90 to 30.06.2004 with interest. 2. The case of the petitioner is that the petitioner, working as Senior Clerk in Mechar‘iical Bill Section, South East Central railway; v" I KL Bilaspur, was charge-sheeted under section 5(2) read with section 5(1) of the Prevention of Corruption Act, 1947 and section 161 of the Indian Penal Code, 1860. for having accepted bribe of Rs. 100/- from one Sukhchand on 21.05.1985. The petitioner was convicted by the Trial Court on 06.10.1990 in Special Case N0; 161/1984. On conviction by the Trial Court, the petitioner was PETITIONER : K. Sunder Raj. VERSUS RESPONDENTS : Union of India & preferred aniaepeal before the High Court‘ of Madhya Pradesh at Jabalpur in Criminal. Appeal no. 979/1980. The High Court acquitted .the' petitioner of the charges on» 06,072006. After cquittal; theorder of dismissal dated 19.91.1990 was revoked o 21.04.2007. The petitioner could not be reinstated in service e retired on attaining the age of superannuation on 30.06.2004 h ; he petitioner preferred‘an application before the Centr T al dministrative Tribunal,‘ Jabalpur,’ Circuit Benc atBilaspur _‘ v A h z seeking following reliefs a : “To direct the respondents to pay full pay and llowances with interest to the applicant to r whom he would have been entitled had he not een dismissed i.e. for the period commencin b g 91199 30200 1..10 to 064.” he Tribunal; relin on the decision of the Supreme Court .i nion oflndia & Others v; Jaipal Singhl held that the petitione to fu pay and allowa fr .9 as not. entitle 306.2004. .0 Shri Pramod Verma,’ learned Senior Counsel appearing with Shri Raghavendra Verma; learned Advocate for the petitioner, Would ubmit that the ratio laid down in Jaipal Singh has not bee . v roperly applied to the facts of the instant case as the Suprem p e , Court, in: para ,4 had observed that i prosecuton whic ltimately resulted in acquittal of the person concerned was at th u e behest of or by the department itself perhaps different considerations. ma ari>se.>O‘n the other hand if as a citizen‘t employee or a public servant got involved in a criminal case and ‘s‘ c ggm 1 sc 121 a n " as a I T yg n' U r w d \ ll nces om 19.11190 to ’ s l n ‘ f i h ' y he- ‘ i appeal subisééuent‘ly- the department can not; in any manner b aulted with, for having kept Ahim out of service, since the, lar f w obligeska person conviCteti of an offence to be s ept out and no \ tat be tne i service. _ hri erma would next contend that the respondent/Departmen S V t had role inprosecutiOn in question as the ‘sanction’ wasgr‘ant‘e by the authorities. He would next contend thatif the‘depart’ment h d n e rosecution of the petitioner proceeded after grant of sanctio p n wherein the authorities have applied their mind before grantin sanction and without grant of sanction the petitioner coul not d ' have suffered rigour of trial which ultimately resulted into cquittal from all charges, thus, the respondent/department liable to payiall the backwageswith allowance e , l On th other hand Ms. Naushina Afrin' Ali,‘ learned counse n r appearig fo‘r the respondents would submit that the petitione could not beiallowed to work lawfully on account of pendency of the trial. Thelpetitioner was caught red-handed, and as such,‘ he was prosecuted in criminal case. The prosecutionwas not at t by a trap party by the officers of the C.B.I. A complainant w lodged before the Loka'yukt, by the complainant Sukhchand, w w i The as working as Fitter,.-Grade III at Karanji Railway staton. rosecution was 9n account ofalleged demandf moneyas brb by the petitioner. Granting sanction by the authorities cannot b ad no role in prosecution, the department cannot be saddle with paymet of backwages. But in the case on hand, Since th ;. e' o k t h reaid n d; g: a a is r s. " ~ he as ho ' p O ie N ”H r , n ' e ~AIR 2 (1991) 1958 3 scc sc 124 655 (v 45 c 19) _ AIR 1954, sc 3 ’ ‘ A1R 1948 PC 82 IR 1954 sc 637 A1R19794 sc, \ A1R 1984 sc 684" 1978-CRLJ 1153 9 AIR 1956 sc 44 (2005) 4 scc 81- x» 3 “ 59 5 ‘A 3 7 2 9 ‘ “ ; Singh Badal & another v. State ofPunjab & Others”, State‘of Madhya Pradesh v Harzshankar Bhagwan Prasad Trlpathz Banshzdhar v State of Rajasthan 4, Unzon of India v Jazpal ‘ v‘ Singhj. r 8. g The facts are indisputable. The question of law which arises for out consideration is asto Whether grant of sanction by the »compete_nt‘ authority in case. of an employee, amounts to proseeution at the behest of the Department or the Department ‘ has any role ‘in prosecution ofthe employee. The Supreme Court, 1n Jazpal Smgh 'held as under i “4 If prosecution which ultimately resulted 1n acquittal of the person concerned was at the v behest or by department 1tse1f perhaps different considerations may arise On the other hand if ' _ as a c1tizen the employee or a publlc servant got ' involved 1n a crlmlnal case and 1t after 1n1t1al convrctlon by the trlal court he gets acqulttal on appeal subsequently, the department cannot 1n any manner be found fault With for hav1ng kept him out of serVice smce the law obliges a i person conv1cted of an offence to be so kept out and not to be retained 1n serv1ce Consequently, 'r u. the reaSOns given in the dec1s10n relied upon for the appellants are not only conVinc1ng but . ' are in consonance With reasonableness as well Though exception taken to that part of the order directing re-instatement cannot be sustainedand‘ the respondent has to be re—instated, in service, » fer the reasonthat the earlier discharge was on account of those criminal proceedings and , . conv1ction only, the appellants are well Within their rights to deny back wages to the respondent for the period he was not in servrce The appellants cannot be made liable to pay for the period for which they could not'avail of the ‘ services of the respondent The High Court ‘ in our View committed a grave error in allow1ng back Wages also Without adverting to all such I relevant aspects and consrderations Consequently, the order of the High Court in so 12 (2007) 1' scc 1 V ' L7 ‘ ” 13 i4 (2010) (2007) 8 1 sec sec 655 324 m a J lt ment a r l n ere set as h ha in' Contention of Sri‘ Verma tt the respondent had‘ a role p h he rosecution ‘of the petitiOner, tus, it i‘s the liability of t ingihl,"the WOrd is not‘:‘role of thei departtnent/gOvernment’, bu if the rosecution was at the behest of the Department itself. he case on hand it cannot be eld that the prosecution was at th t , h e V bhest of or by the respodet/Depaet as the petiione was a . _ ' ’ e nnrtmn tr caught red-haned by the officers ofthe .B.I.‘ an .B.. was t d C d Cl he rosecutin aenc for the offence committed by ,th pg gy e': etitioner. It, can also not be he as .it.was at the behest of th r p ld e ' rd.‘ esponents o f bserved on the requirement of sanction and necessity o sanction, as under: 20.'The principle of mmunity protects all a, which the public servant has to perform inte exercise of the functions of the Govemmen. r thy r er . pec se ts frm crima 'i However there is an exceptio Where a ‘ crlminal act is performed under te colour of aorit ut ic lity 1 o th bc s's n peur r beneit en c at shall not be protected under the doctrine o State immunity 11. In Staté through Anti Corruption Bureau, Government of M Bobay v krishanch Khuhalchand Jgtiani”; l i he'Sureme: Court, observed as under: tp , aharashtra; m . and s' a 8.....It'must be rememered that the object o Section 6(1)(C) or for that matter Section 197 f the Criminal Procedure Coe is that ther o d e a. 15 1996) 4 SCC 47 x $ 2 far as 1t drcced pay of back wges ae llabe to be ad 1s hby 1de 'S t " w : :‘ p In \, “ i cts ih t The purpose fe which e ae pformed V rotts the ac o inl prosecutlon n m h uthy b whh m rea s fr e puli I ervant ow lase o f th suh cs f 7 t “ b f ‘ ' ' criminal complaint against him. The protectio s extended against pmsecution a S ' n bsolute tate agency or unqualified.” but the protectio n ‘ eVen' by, i not In Jaswant' Sin/13, sanction as under the Supreme Court defined the object of 3 ’ The sanctiOn is not the fin hat by grant of sanCtion, he sanctioning authorit a1 conclusion and also it cannotrbe hel he respondents had, played any role. after having consideredthe relevan caught accepting bribe, es within the definition of; t . d in qha prosecution by the authorities or at the behest ofhe authority The Word fprosecution’ has [been deiine . P. Rmnat zy'ar ’s' AdvancédLaw Lexicom 3’dEdition, 005, has under A 2 : “n Prosecutio itn nstituio i a s g : d t t T y, t com \ 15. The word ‘prosecution’ in the context of section 64 of the Narcotic Drugs and Psychotropic Substances Act, 1985 means , s the entire proceeding till the judgment of the court. is delivered. (See Jasbzr Smgh v Vpm Kumar Jaggz, (2001) 8 SCC 289) l6. The Black s Law Dzctzonary, Ezghth Edmon deflnes the term prosecution as under. lr' ‘ ‘. “1‘. The commencement and carrying out of any ‘ action or scheme < the prosecution Of a long, V bloody war > 2.'A criminal proceeding in which ’ an accused person is tried < the conspiracy trial - V involved the nroseCution of seven defendants>. ‘ — Also termed crzmmalpmsecunon ' 17. In Chambers 21" Century Dzctzonary, the term at the behest’ has been defined as under v “behest noun, formal or old use a command or request at the behest of someone or someone s behest at their request when they asked or commanded 12c from Anglo Saxon . I V behaes or vow or promise ‘ 18. The term at the Instance has been defined in P. Ramnatha Aiyar’s‘Advanced Law Lexicon, 3rd Edmon, 2005, as under: V ,. I ,. ._ '“At the instance of. On’being urged by. It means ‘at the behest of, or atithe solicitation . ‘Of’. ‘Instanc'e’ doesnot imply same degree of obligation toobey as does command’ Where a V' person actlng for and on behalf of Electr1c1ty I Board lodges a complamt With pollce 1n respect r , of unlawful extraction of electr1c1ty energy, the, ’ ' ‘ " prosecution must be regarded as mstltuted at the , e e PM . u instance of the Board State of Karnataka v Adzmurthy, AIR 1983 SC 822 ” 19. In the case on hand the validlty of grant of sanctlon 1s not 1n A \ questlon therefore 1t 1s not necessary to go into the question asto Whether or not, Sanction was rightly granted. Thus, the question r \ . \ asto sanction granted: byi the respondent authorities means’ \\, \‘prosecution [or prosecution at the behest of the authorities, is \. 4 ) answered 1n negatlve In thls case a rald was conducted and the employee/pet1t1oher was caught red handed by the C B I officers ‘ .v ‘ an he prosecutmn was done by h C B I and at the beest of 7 d t te h , ,C BI not by the allwy authts The pt1t1oner ha not Ra or11e e s me outa case that he was ou srvie because f the ad t of ec o Rwy authorities. Thu he i t entitled to grant of aila s, s no ’ aages ' bckw. 20.- _ I nhidhar” the Supreme Cout e considri gantvof n Bas r whil eng r L” bawages 1n case of an empoyee w was exonerated fom the V, x ' , IL . , ck l ho r ges by the Hgh Court held as dr char i une a e ca l o an c age ac h ‘ etee ts ct av cont w ae ; e u g o e Sec J g g e 1na a a a e rc h r ' 4h V any demand had ben made hlm g e by 1 o aw a t av relegist a e oee aanst n epn r eer ale a ter Pe, e o t he i is n gent l a b gnt oca p o r einatn cc wa u e invalid (UP State Brassware Corpn Ltd and - Another v Uday Narazn Pandey and Munzczpal Coanczl Swanpurv Surinder Kamar) 9 NO hrd and fast rul n be lad down 1n regard t grt to bak ws Eh case as to - be drmind on i own fas. A gre charge "of r criminal misduc as llegd against , him H was also fond uilty f the charges levelled against him/by th pial udge. The _ _ High Court while deliverin its Judment datd 16 01 2001 1n S B Cr1ml Appel No 68 of . 1985 inter ha held tht th poseution as not been able to pove that lO It s nw a trite l tht Judgmen of ' acquittal itself would not he exonerated him of the chagsevlle‘daan him. He could hve ben prcedd gi i a dartmetal 1 poceeding (See Manager Rsve Bank of India, Bangor v S Mm and Ohs, and * Commisszoner of olic New Dlhz v. Narender Smgh ) 13 Even 1n relatin o t ndustrial disputes, th Court, in may judms has hed that " back wges-need not e raed autmatilly althugh the oder oftrmio passed against the onerned workman s fond to b 1 0 .. 21. V In Ranchhpdji Chaturji Thakore v. Superintendent Ehgz'heer, ‘ , I Gujarat Eleétricitj} Board, Himmatnagar (Gujafaz) & Another”; wthe Supreme Court observed as under; , W A, -"3...The question ofback wages would be - considered only if the rjespondents'have taken A 3 4‘. 'V""' 1. action. by way of/disciplinary proceeding and the action was found to be unsustainable in law and he was unlawfully prevented ‘ nom . discharging the duties. In that context, his] . conduct becomes relevant, Each case requires to V , be considered in his own backdrops. In this case; since the petitioner had involved himself ‘ in a i crime, though he was later'acquitted, he “had disabled himself nom rendering the service L on account of conviction and incarceration in jail. Under these circumstances, the petitioner is ‘ not entitled to payment of back wages?‘ , 22; ' The-decision 'oti7theTTribunaIis just & proper and 'doesnot ,I: ii, i. y warrant any interference of thisCourt. 23‘. As an upshot, the writ petition is shorn of merit and is accordingly dismissed. 24. There shall be no.0rder asto c0sts. Sd/- Satish K. Agnihotri Judge Sd/- R.S. Sharma Judge 16 ((1996) 11 scc‘ 603