CWP No. 11994 of 2007 (1) IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No. 11994 of 2007 Date of Decision: 01-09-2008 Chhinder Pal ....Petitioner Versus Commissioner, Municipal Corporation, Ludhiana and others .....Respondents Coram: HON'BLE MR. JUSTICE HEMANT GUPTA HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present: Shri B.S. Kanwar, Advocate, for Shri Govind Goel, Advocate, for the petitioner. Shri Sandeep Moudgil, DAG, Punjab. 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? HEMANT GUPTA, J. The petitioner has sought a writ of certiorari for quashing of the order dated 20.4.2007, passed by the Labour Court, Ludhiana, whereby the claim of the petitioner for payment of arrears of salary and allowance with interest, was declined. The petitioner was working as Beldar with the respondent- Management, when an FIR No. 164 dated 31.5.1996 under Section 18 of the Narcotic Drugs and Psychotrophic Substances Act, 1881 Act, was lodged against him. He was acquitted by the Criminal Court on 22.10.1998. Though, an order regarding suspension of the petitioner CWP No. 11994 of 2007 (2) was passed on 3.6.1997, the petitioner was allowed to resume duty after his acquittal on 21.12.1998. Thus, the petitioner claimed wages from 31.5.1996 to 28.12.1998 by moving an application under Section 33C (2) of the Industrial Disputes Act, 1947. In support of his argument that the petitioner is entitled to the salary for the entire period from 31.5.1996 to 28.12.1998, the learned counsel for the petitioner has relied upon New Tajmahal Cafe (P) Ltd. v. Labour Court, Hubli and another etc., (1970) 2 LLJ 51 and Brahma Chandra Gupta v. Union of India, (1984) 2 Supreme Court Cases 433. The learned Labour Court relied upon a judgment of the Hon’ble Supreme Court reported as Municipal Corporation of Delhi v. Ganesh Razak and another, (1995) 1 Supreme Court Cases 235, wherein it has been held that the dispute relating to entitlement is not incidental to the benefit claimed and, therefore, is clearly outside the scope of the provisions of Section 33C(2) of the Act. Consequently, the application was found to be without any merit and dismissed. Though there is dispute to the entitlement of the petitioner to claim wages under Section 33C(2) of the Act for the period from the date of his alleged involvement in a criminal case till his reinstatement, but we are examining the rights of the petitioner to claim wages for the aforesaid period so as to avoid further delay in respect of wages, if any, payable to the petitioner, particularly when the issue raised is legal. The Hon’ble Supreme Court in The Management of Reserve Bank of India, New Delhi v. Bhopal Singh Panchal, AIR 1994 Supreme Court 552, while interpreting the provisions of Reserve Bank of India (Staff) Regulation (1948), has held that if an employee is acquitted of all blame and is treated by the competent authority as being on duty during the period of suspension, such employee is entitled to full pay and allowances for the said period. It has been held CWP No. 11994 of 2007 (3) that if an employee is absent for reasons of his own involvement in the misconduct and the Bank is in no way responsible for keeping him away from his duties, the Bank cannot be saddled with the liability to pay him his salary and allowances for the period. A Division Bench of this Court in Jai Bhagwan v. Dakshin Haryana Bijli Vitran Nigam Ltd. and others (CWP No. 18691 of 2005 decided on 11.3.2008) has examined a similar claim in respect of an employee governed by the Punjab Civil Services Rules Vol. I Part I. Relying upon the Hon’ble Supreme Court judgment reported as Ranchhodjii Chaturji Thakore v. Supdt. Engineer, Gujarat Electricity Board, (1996) 11 SCC 663, this Court, has held to the following effect:- “It is the said judgment which was set aside by the Hon'ble Supreme Court in the case of Union of India v. Jaipal Singh, (2004)1 SCC 121, wherein the Hon'ble Supreme Court has held that if the prosecution which ultimately resulted in acquittal of the person concerned was at the behest or by the Department itself, different considerations may arise, but if the citizen gets involved in a criminal case, the department cannot in any manner be found fault for keeping him out of service during the trial of the said case. It was held to the following effect:- “If prosecution, which ultimately resulted in acquittal of the person concerned was at the behest or by department itself, perhaps different considerations may arise. On the other hand, if a citizen the employee or a public servant got involved in a criminal case and if after initial conviction by the trial court, he gets acquittal on appeal subsequently, the CWP No. 11994 of 2007 (4) department cannot in any manner be found fault with for having kept him out of service, since the law obliges, a person convicted of an offence to be so kept out not to be retained in service. Consequently, the reasons given in the decision relied upon, for the appellants are not only convincing but are in consonance with reasonableness as well. Though exception taken to that part of the order directing re- instatement cannot be sustained and the respondent has to be re-instated, in service, for the reason that the earlier discharge was on account of those criminal proceedings and conviction only, the appellants are well within their rights to deny back wages to the respondent for the period he was not in service. 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 allowing back wages also, without adverting to all such relevant aspects and considerations. Consequently, the order of the High Court in so far as it directed payment of back wages are liable to be and is hereby set aside.” In fact, the judgment in Shashi Kumar's case (supra) directing the payment of the back wages, has been rendered on the lines of the earlier judgment in Jaipal Singh's case (supra). In Shashi Kumar's case (supra), the judgment of the Hon'ble Supreme Court in CWP No. 11994 of 2007 (5) Jaipal Singh's case (supra), was not brought to the notice of this Court. Therefore, for the reasons recorded in Jaipal Singh's case (supra), the view taken by this Court in Shashi Kumar's case (supra) is not a good law to that extent. Later in Baldev Singh's case (supra), the Court reiterated the principles laid down in the earlier judgments. It was held to the following effect:- “7. As the factual position noted clearly indicates, the appellant was not in actual service for the period he was in custody. Merely because there has been an acquittal does not automatically entitle him to get salary for the period concerned. This is more so, on the logic of no work no pay. It is to be noted that the appellant was terminated from service because of the conviction. Effect of the same does not get diluted because of subsequent acquittal for the purpose of counting service. The aforesaid position was clearly stated in Ranchhodji Chaturji Thakore v. Supdt. Engineer, Gujarat Electricity Board, (1996) 11 SCC 603. 8. The position was reiterated in Union of India v. Jaipal Singh, (2004)1 SCC 121.” In the present case, the petitioner was arrested for an offence under Section 302 IPC. The arrest of the petitioner was not on account of any action of the respondents. It was a private dispute of the petitioner with his fellow villagers. Therefore, for the period, the petitioner remained in custody, he cannot be granted wages as such custody was not on account of an act of the employer. Rule 7.5 of the Rules referred to by the petitioner CWP No. 11994 of 2007 (6) deals with the suspension during the pendency of the criminal proceedings. The adjustment of the allowances for such period contemplated to be made according to the circumstances of the case will make the employer liable to make the payment of the back wages only if he was deprived of the wages for an action by the employer. In the present case, the custody of the petitioner was not on account of any act of the respondents. Therefore, the order passed by the authorities granting leave of the kind due for the period of detention is in fact in terms of Rule 7.5 of the Rules and in accordance with the principles of law enumerated by the Hon'ble Supreme Court.” The judgments referred to by the learned counsel for the petitioner are not helpful to the argument raised by him. In New Taj Mahal's case (supra), the workmen were suspended by the Management pending domestic inquiry. Since no punishment was granted in the domestic inquiry, therefore, the workmen were found to be entitled to the salary for the period they remained under suspension. In Brahma Chandra Gupta's case (supra), the order of dismissal was passed against the petitioner therein subsequent to his conviction. Once the conviction was set aside, it was found that the petitioner was entitled to the back wages. As discussed in Jai Bhagwan's case (supra), the cases of the employees claiming arrears fall in two categories. One is where an employee is suspended on account of disciplinary action initiated or contemplated by the employer. In such cases, on exoneration in the departmental inquiry proceedings, the employee shall be entitled to arrears of salary, but in case, where an employee is suspended on account of his involvement in a criminal case not at the instance of the CWP No. 11994 of 2007 (7) employer, the employer cannot be saddled with the liability of payment of arrears of salary on the principle of “no work-no pay”, as such action was not initiated at the instance of the employer. In view of the aforesaid judgment, we do not find that the claim of the petitioner for arrears of salary for the period, he remained out of work, for no fault of the respondents, is legally tenable. Consequently, the present writ petition is dismissed. (HEMANT GUPTA) JUDGE (KANWALJIT SINGH AHLUWALIA) JUDGE September 01 , 2008 ds