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Sharad Jivanlal Kurani vs Union Of India on 6 February, 2019

C/SCA/2236/2019 ORDER

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

R/SPECIAL CIVIL APPLICATION NO. 2236 of 2019

SHARAD JIVANLAL KURANI
Versus
UNION OF INDIA

Appearance:
MR PH PATHAK(665) for the PETITIONER(s) No. 1
for the RESPONDENT(s) No. 1,2,3,4,5

CORAM: Hon’ble MR.JUSTICE S.R.BRAHMBHATT
and
Hon’ble MR.JUSTICE A.G.URAIZEE

Date : 06/02/2019

ORAL ORDER

(PER : Hon’ble MR.JUSTICE S.R.BRAHMBHATT)

1. Heard Shri P. H. Pathak, learned counsel appearing for the

petitioner. Petitioner, who happened to be an applicant in original

application being Original Application No.490 of 2012 with M.A.

No.79 of 2013 has taken out this petition under Articles 226 and

227 of the Constitution of India assailing the judgment and order of

the Central Administrative Tribunal, Ahmedabad Bench dated

31.08.2016, whereby the tribunal has rejected the prayer of

backwages for the period from dismissal to the acquittal and

reinstatement.

2. The facts in brief, could be gathered from the decision and

the memo of petition, deserves to be set-out as under, for

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C/SCA/2236/2019 ORDER

appreciating the controversy.

2.1 The petitioner was working as T. S. Clerk with Gujarat

Telecom Circle of the Indian Post and Telegraphs Department from

01.01.1983. Later on, he was promoted as Sr. TOA (G) and was

working with Telecom District, Rajkot. The Bharat Sanchar Nigam

Limited (BSNL) came into existence w.e.f. 01.10.2000 and under an

order dated 18.01.2002, the petitioner was absorbed in BSNL w.e.f.

01.10.2000. The petitioner had to face criminal prosecution u/s.

498A and 304B read with Section 114 of the Indian Penal Code in

Sessions Case No.138 of 1991. The Sessions Court has acquitted

the petitioner vide order dated 22.01.1997. Such acquittal order

dated 22.01.1997 was challenged by the State Government, in

Criminal Appeal No.335 of 1997. The High Court of Gujarat on

06.05.2004 allowed the said Criminal Appeal No.335 of 1997 and

order of acquittal dated 22.01.1997 in Sessions Case No.138 of

1991 was set aside and acquittal was converted into conviction,

punishable under Sections 498A and 306 of the Indian Penal Code

and sentence of 5 years rigorous imprisonment and fine of

Rs.3000/-, in default whereof further rigorous imprisonment of 6

months was awarded. Being aggrieved, the order of the High

Court rendered on 06.05.2004 in Criminal Appeal No.335 of 1997

was assailed in Special Leave to Appeal (Criminal) No.3154 of

2004. Main contention of the petitioner is that on account of his

conviction in the Criminal Appeal, he came to be dismissed from

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C/SCA/2236/2019 ORDER

services vide order dated 26.09.2006 i.e. after some time of

conviction by the High Court and the petitioner was through out

enjoying the bail and he was not in custody. The appeal in the

Hon’ble Supreme Court being Criminal Appeal No.810 of 2004 was

allowed and trial Court’s order was restored. The petitioner has

filed Original Application for seeking appropriate relief and

reinstatement. The department had reinstated the petitioner on

12.08.2011. The tribunal has rendered the decision on 31.08.2016,

whereby, the petitioner was not granted the backwages from the

date of dismissal, till the date of reinstatement based upon the fact

that the Hon’ble Supreme Court in its decision cited in the

judgment, which are reproduced as under, held that the

respondent cannot be saddled with liability to make payment for

the period, when the petitioner did not discharge his duties. So the

said order was assailed in this petition under Articles 226 and 227

of the Constitution of India.;

(1) “In the case of Ranchhodji Chaturji thakore vs.
Superintendent Engineer, Gujarat Electricity Board,
Himmatnagar (Gujarat) and Anr. reported in (1996) 11
SCC 603 the Hon’ble Supreme Court considered whether
back wages would be paid to the employees for the period
between the date of dismissal and the date of reinstatement.
The Hon’ble Supreme Court held thus;

“The reinstatement of the petitioner into the service
has already been ordered by the High Court. The only
question is : Whether he is entitled to back wages? It
was his conduct of involving himself in the crime that
was taken into account for his not being in service of

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C/SCA/2236/2019 ORDER

the respondent. Consequent upon his acquittal, he is
entitled to reinstatement for the reason that his service
was terminated on the basis of the conviction by
operation of proviso to the statutory rules applicable to
the situation. The question of back wages would be
considered only if the respondents have taken action by
way of disciplinary proceedings and the action was
found to be unsustainable in law and he was unlawfully
prevented from discharging the duties. In that context,
his conduct becomes relevant. Each case requires to be
considered in his own backdrops. In this case, since the
petitioner had involved himself in a crime, though he
was later acquitted, he had disabled himself from
rendering the service on account of conviction and
incarceration in jail. Under these circumstances, the
petitioner is not entitled to payment of back wages.”

(2) In case of Union of Inida Ors. vs. Jaipal Singh
reported in (2004) 1 SCC 121, the Hon’ble Supreme Court
after expressing the agreement with the view in Ranchhodji
(supra) observed thus;

“…….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 as 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 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 and 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 reinstatement cannot be sustained and
the respondent has to be reinstated, 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
backwages 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 backwages
also, without adverting to all such relevant aspects and

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C/SCA/2236/2019 ORDER

considerations. Consequently, the order of the High
Court insofar as it directed payment of backwages are
liable to be and is hereby set aside .

The respondent will be entitled to backwages from the
date of acquittal and except for the purpose of denying
the respondent actual payment of backwages, that
period also will be counted as period of service, without
any break.””

3. Learned counsel for the petitioner has contended that the

factum of restoration of service of the petitioner ought to have

been appreciated by the tribunal. He has further contended that

petitioner was not permitted to serve the department. Therefore,

when he was available to discharge his duty, the dismissal order

itself was not justified, as it was passed after one and half years of

the order of conviction. The Hon’ble Supreme Court has also not

said that the conviction and dismissal based thereupon would not

entail the order of back-wages even after reinstatement in all

cases. The facts and circumstances of the case have to be examined

and appropriate relief is required to be granted.

4. This Court is of the view that the petition requires to be

dismissed as the judgment and order passed by the tribunal does

not call for any interference for the following reasons;

4.1 The Hon’ble Supreme Court’s judgments relied upon by the

tribunal and extract of which were cited herein above, indicates the

fatum of conviction and when it was not stayed by any competent

Court would entail the originality and when offence under Sections

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C/SCA/2236/2019 ORDER

498A and 306 of the Indian Penal Code, the Hon’ble Supreme Court

has held that the employer cannot be saddled with the liability of

paying the wages to the employee when he was dismissed on

account of conviction irrespective of reinstatement on account of

acquittal. We hastened to add here that the situation would have

been different if the conviction order itself was stayed by the Court.

Mere enlargement of the employee on bail itself, would not amount

to stay the conviction and, therefore, stigma attached to the

employee on account of conviction remains and it would effect only

when the competent Court converted the conviction into acquittal.

5. Therefore, in our view, the tribunal’s reasonings cannot be

said to be suffers from any infirmity, so as to call for any

interference. As a result thereof, the petition fails and hereby

dismissed.

(S.R.BRAHMBHATT, J)

(A.G.URAIZEE, J)
DRASHTI K. SHUKLA

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