M.H.S. Ansari, J.@mdashBrief facts alone need to be stated. They are:
While petitioner was working in the Respondent corporation, prosecution was launched by Central Bureau of Investigation (C.B.I.) against the petitioner and the petitioner was convicted u/s 120B, 409 IPC and Section 5(2) of the Prevention of Corruption Act by the learned Special Judge at Gauhati. Based on his conviction, the petitioner was placed under suspension by the Respondent Organisation vide Office Order No. 5/7/74-Vig. dated 3-5-1982. Thereafter the petitioner was dismissed from service of the Respondent Corporation vide Office Order No. 5/7/74-Vig. dated 6-6-1983 under Reg. No. 41(A)/CDA Regulation.
2. The petitioner preferred an appeal against his conviction before the High Court of Gauhati at Assam. During the pendency of the said appeal, the petitioner preferred W.P. No. 5139 of 1993 before this High Court, which was disposed of by a learned single Judge of this Court by orders dated 28-11-1993. In that writ petition, the petitioner had questioned the order of dismissal dated 6-6-1983 on the ground that the same was passed without giving him a personal hearing and thus violative of principles of natural justice. This Court in its order dated 28-11-1993, observed that where action is taken for termination of service on the ground of conduct which led to conviction by Criminal Court, it cannot be said that personal hearing was obligatory. The Writ Petition was dismissed. However, it was clarified that if the conviction by the Appellate Court is set aside and the petitioner is acquitted, the authority shall reinstate the petitioner in service. In case of any modification by the Appellate Court, the competent authority shall review the matter in the light of the judgment of the Court. The Appeal filed by the petitioner against his conviction was allowed by the High Court of Gauhati, Assam and petitioner was acquitted of all the charges. The Respondent Organisation vide Proceedings No. 29/168/62-Estt. Tech./DBG dated 28-4-1993 reinstated the petitioner into service to the post of Senior Driller which post was re-designated as Executive Engineer (Drilling). The petitioner laid a claim for full pay and allowances such as pay, travelling allowance and dearness allowance, drilling allowances, bonus and incentives, legal expenses, promotion etc., in terms of the Regulations applicable to his cadre for the period from the date of suspension till reinstatement. As no action was taken by the respondent organisation, the above Writ Petition was filed seeking a declaration that the petitioner is entitled to consequential benefits pursuant to reinstatement into service. Subsequently, it appears that provisionally a sum of Rs. 1,32,287/- was paid to the petitioner towards the arrears of pay and allowances after statutory deductions for the period between 3-5-1982 to 30-4-1993. Thereafter, however, by proceedings dated 3-5-1995, the competent authority directed that the period of suspension and dismissal of the petitioner from 3-5-1982 to 9-5-1993 be treated as period not spent on duty and that the petitioner is not entitled to any back-wages for the period of his suspension and dismissal.
3. The petitioner thereupon filed W.P.M.P. No. 17024 of 1997 seeking amendment of the prayer in the above writ petition for issue of writ of Certiorari for quashing the said proceedings dated 3-5-1995 and another W.P.M.P. No. 17025 of 1997 was filed for raising additional grounds in respect of the amendment prayed for. The said two petitions have been heard along with the writ petition. The petition to amend the prayer is to be allowed in view of the changed circumstances and the petitioner, cannot be denied the right to seek appropriate relief based on the same cause of action by amending the prayer. Consequently the petition to raise additional grounds has to be allowed and is accordingly allowed.
4. Counter affidavits have been filed on behalf of Respondents 1, 2 and 3 and reply affidavit has also been filed to the said counter by the petitioner.
5. As already noticed, the petitioner was placed under suspension consequent upon his conviction for offences u/s 120B, 409 IPC and Section 5(2) of the Prevention of Corruption Act. By orders dated 3-5-1982, petitioner was placed under suspension and thereafter he was dismissed from service by orders dated 6-6-1983 and was reinstated into service by orders dated 28-4-1993 consequent upon the appeal of the petitioner having been allowed and conviction having been set aside. The petitioner joined service consequent upon his reinstatement on 10-5-1993. The petitioner claims full pay and allowances for the period 3-5-1982 to 9-5-1993. By the impugned order dated 3-5-1995, the petitioner has been declared not entitled to any back-wages and the said period has been directed to be treated as period not spent on duty. Even the provisional pay and allowances paid to the petitioner during the pendency of the above Writ Petition, impugned order dated 3-5-1995 states that the petitioner is not entitled to the same and that wrong payment made requires to be looked into.
6. Consequent to the amendment of the prayer in the above writ petitioner, the validity of the proceedings dated 3-5-1995 (impugned order) are to be considered whereby the Competent authority directed that the period of suspension and dismissal be treated as "not on duty" and denying the petitioner back-wages for the said period. In other words, what has to be considered is whether the petitioner is entitled to payment of any amounts for the period of suspension and dismissal w.e.f., 3-5-1982 to 9-5-1993 and whether the impugned proceedings dated 3-5-1995 denying the same are valid in law.
7. Before considering the contentions advanced before Court, it would be useful to look at the rule position obtaining in the respondent organisation.
8. For the purpose of the instant case, the Regulations called Oil and Natural Gas Commission, Conduct Discipline and Appeal Regulations, 1976, and Pay and Allowances Regulations, 1972 alone are relevant.
9. Regulation 41 of the Conduct, Discipline and Appeal Regulations, empowers the disciplinary authority to pass such orders as it deems fit where a penalty is imposed on employee on the ground of conduct which has led to his conviction on a criminal charge.
10. Under the Pay and Allowances Regulations, 1972, Regulation 14 deals with the payments to be made during the period of suspension. Sub-regulation 3 of Regulation 14, upon which great stress has been placed by the learned Counsel for the petitioner, it would be useful to extract the same. It reads as under:
"(3) (a) When an employee, who had been dismissed, removed, compulsorily retired or suspended, is reinstated or would have been reinstated but for his retirement on superannuation while under suspension, the authority competent to order the reinstatement shall consider and make a specific order:-
(i) regarding the pay and allowances to be paid to the employee for the period of his absence from duty or for the period of suspension ending with the date of his retirement on superannuation, as the case may be, and
(ii) whether or not the said period shall be treated as a period spent on duty.
(b) Where the authority mentioned in Clause (a) above is of the opinion that the employee has been fully exonerated or, in the case of suspension, that it was wholly unjustified, the employee shall be given the full pay and allowances to which he would have been entitled had he not been dismissed, removed, compulsorily retired or suspended, as the case may be.
(c) In other cases, the employee shall be given such proportion of such pay and allowances as such competent authority may specify in this behalf;
Provided that the payment of allowance under Clause (b) or Clause (c) shall be subject to all other conditions under which such allowances are admissible.
Provided further that such proportion of such pay and allowances shall not be less than the subsistence grant admissible under these regulations.
(d) In a case falling under Clause (b), the period of absence from duty shall be treated as a period spent on duty for all purposes.
(e) In a case falling under Clause (c), the period of absence from duty shall not be treated as a period spent on duty, unless such competent authority specifically directs that it shall be so treated for any specified purpose :
11. An analysis of Sub-regulation (3) of Regulation 14 shows that the power is vested in competent authority to order reinstatement of an employee who had been dismissed, removed, compulsorily retired or suspended and is reinstated. Under this sub-regulation, the competent authority is required to make a specific order regarding pay and allowances to be paid to the employee for the period of his absence from duty and whether or not the said period shall be treated as period spent on duty. Clauses (b) and (c) come into the picture for determination of the pay and allowances payable to such employee depending upon the circumstances of the case and as referred to therein. Clauses (d) and (e) lay down as to how the period of absence shall be treated in cases respectively falling under Clauses (b) and (c).
12. Under Clause (b) of Sub-regulation (3), where the competent authority is of the opinion that the employee has been fully exonerated or in the case of suspension that it was wholly unjustified, the employee shall be given full pay and allowances. Clause (d) lays down that in such case, the period of absence from duty shall be treated as period spent on duty for all purposes.
13. Clause (c) deals with other cases and is in the nature of residuary provision dealing with cases not falling under Clause (b). Payment of proportionate pay and allowances is provided for under this clause and the competent authority is required to specify the amount payable which, however, shall not be less than the subsistence allowance admissible under the Regulations. Clause (e) states that in such cases, the period of absence from duty shall not be treated as a period spent on duty unless such competent authority specifically directs that it shall be so treated for any specified purpose. Power is thus vested in the competent authority to specify in such case if the absence shall be treated as ''on duty'' for any specified purpose.
14. Learned Counsel for the petitioner contended that Clause (b) of Sub-regulation (3) of Regulation 14, is applicable to the petitioner''s case and the petitioner having been exonerated and reinstated into service, the period of absence from duty is to be treated as period spent on duty for all purposes in terms of Clause (d) and that the petitioner is entitled to full pay and allowances to which he would have been entitled had he not been dismissed.
15. I cannot accede to the said contention. There is no specific regulation dealing with cases respecting suspension and dismissal of an employee, consequent on conviction based on a criminal charge and as to how the period of absence in such case is to be treated. Clause (b) of Sub-regulation (3) has no application to cases of conviction on criminal charges. The said clause is applicable in cases of reinstatement in relation to disciplinary enquiries. Clue to the same is to be found in the terminology used viz., formation of opinion by the competent authority that the "employee has been fully exonerated" and in the case of suspension "that it was wholly unsustainable (sic. unjustified)". Such a situation for formation of opinion can be postulated only for misconduct in respect of which disciplinary proceedings have been initiated and the employee is exonerated and not in respect of a case where a Court convicts an employee on criminal charge. Under Regulation 41 of the Conduct, Discipline and Appeal Regulations, the Disciplinary authority is empowered to pass appropriate orders where an employee is convicted on a criminal charge. In the instant case, the petitioner was in the first instance suspended and later his services were terminated in exercise of the power under the said Regulation 41 based on the conviction by Criminal Court. The petitioner''s case being one relating to termination after conviction of criminal charge, it could fall under the residuary Clause (c) which deals with "other cases". Under Clause (e) the period of petitioner''s absence from duty is not to be treated as period spent on duty unless so directed by the competent authority.
16. It was the submission of Sri K. Srinivasa Murthy, learned Counsel for the Respondent Corporation, that competent authority is empowered to issue directions as to how to treat the period of absence and the order dated 3-5-1995 impugned herein has been passed to the effect that the period of suspension and dismissal w.e.f., 3-5-1982 to 9-5-1993 should be treated as period not spent on duty. The said contention is buttressed by the fact that the prosecution was launched by the State and the respondent - Corporation was in no way responsible for the same or for the absence of the petitioner from duty or his conviction. The petitioner had not worked during the relevant period and his termination was because of his conviction.
17. Reliance has been placed by Sri K. Srinivasa Murthy, learned Counsel for the Respondent Corporation on the judgment of the Supreme Court in the
"It is only if such employee is acquitted of all blame and is treated by the competent authority as being on duty during the period of suspension that such employee, is entitled to full pay and allowances for the said period. In other words, the regulations vest the power exclusively in the Bank to treat the period of such suspension on duty or on leave or otherwise. The power thus vested cannot be validly challenged. During this period, the employee renders no work. He 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, therefore, cannot be saddled with the liability to pay him his salary and allowances for the period. That will be against the principle of ''no work, no pay'' and positively inequitable to those who have to work and earn their pay. As it is, even during such period, the employee earns subsistence allowance by virtue of the Regulations. In the circumstances, the Bank''s power in that behalf is unassailable."
18. The principle of "no work", no pay" is clearly discernible from the judgment of the Apex Court for disentitling an employee who is absent for reasons of his own involvement in the misconduct and when the employer is in no way responsible for keeping him away from his duties. The employee in such cases is not entitled to full pay and allowances unless the competent authority treats the said period as "on duty". Subsistence allowance by virtue of the regulations was, however, not considered inadmissible.
19. Next, reliance was placed on another recent judgment of the Supreme Court in Ranchhodji Chaturji Thakore v. The Superintending Engineer, Gujarat Electricity Board, Himmatnagar, Gujarat and Anr, 1997 (1) Supreme 152. In the said judgment, it has been laid down that 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 the employee was unlawfully prevented from discharging the duties. In case, where an employee has involved himself in a crime, though he was later acquitted, it was held that
"he had disabled himself from rendering the service on account of conviction and incarceration in jail".
20. The broad principles emerging from the two judgments of the Supreme Court cited supra, are that,
(1) The question of back-wages can be considered if the Management have taken action by way of disciplinary proceedings and the action was found to be unsustainable in law and thereby the employee was unlawfully prevented from discharging the duties.
(2) The absence of such employee for reasons of his own involvement in the misconduct for which the Management is in no way responsible for keeping him away from his duties, it is the employee that has thus disabled himself from rendering service and cannot as of right claim back-wages.
(3) Where by Rules/Regulations the power is vested in the Management to treat the period of suspension and dismissal on duty or on leave or otherwise, in the case where the employer (sic. employee) is absent on account of his involvement in Criminal case, such power exclusively vested in the competent authority by virtue of the Rules/ Regulations cannot be validly challenged.
(4) Where the Rules/Regulations so provide the employee is entitled to subsistence allowance for the period he was under suspension.
21. Applying the above to the case on hand, it is apparent that the instant case is not one where petitioner has been exonerated and reinstated pursuant to any disciplinary proceedings. The petitioner was convicted on charges of criminal offence. That consequent thereto in exercise of the power vested in the disciplinary authority under Regulation 41 of the Conduct, Discipline and Appeal Regulations, the petitioner was suspended and thereafter his services were terminated. The Respondent Corporation was in no way concerned with the prosecution launched against the petitioner or his subsequent conviction. The absence of the petitioner during the said period was for reasons of his own involvement. The petitioner had thereby disabled himself from rendering service and not for any reasons attributable to the Respondent Corporation. The petitioner cannot therefore as of right claim to be entitled to full pay and allowances for the said period nor can the Respondent Corporation be saddled with the liability to pay him his salary and allowances for that period.
22. Sub-Regulation 3(c) which deals with other cases under which category the petitioner''s case is to be considered, the competent authority is required to specify the proportion of pay and allowances. Such allowances, however, shall be subject to all other conditions under which allowances are admissible and subject to the condition that the proportionate pay together with admissible allowances shall not be less than the subsistence allowance admissible under the Regulations. Sub-Regulation (3)(e), vests power in the competent authority in such case to treat the period of absence from duty as not spent on duty. In the light of the discussion supra, the same cannot be validly challenged. No infirmity can, therefore, be found with that portion of the impugned order of the competent authority dated 3-5-1995 treating the period of the petitioner''s absence as "not spent on duty". It is accordingly so declared.
23. However, in so far as the impugned order has denied the petitioner, backwages for the said period, it has to be held that the same is contrary to the provisions contained in Sub-regulation (3)(c) of Regulation 14. The competent authority is required to specify the proportionate pay and allowances payable to the petitioner which shall be not less than the subsistence allowance and subject to the conditions applicable to such allowances under the Regulations. The impugned order to the extent that it failed to specify any amount is to be held contrary to the Sub-regulation 3(c) of Regulation 14 referred to above. It is accordingly so declared. The impugned order dated 3-5-1995 to that extent is liable to be set aside and is accordingly set aside.
24. In the result, the writ petition is allowed in part. A direction shall issue to the respondent authority to pass appropriate orders specifying the amount payable to the petitioner in terms of Sub-regulation (3)(c) of Regulation 14 of the Pay and Allowances Regulations, 1972. Time for which purpose is granted upto three months from the date of receipt of a copy of this Order. In the circumstances, there shall be no order as to costs.
