V.O. VARKEY v. SOUTH MALABAR GRAMIN BANK & ORS

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN TUESDAY, THE 14TH OCTOBER 2008 / 22ND ASWINA 1930 OP.No. 21752 of 1999(M) ----------------------- PETITIONER(S): --------------V.O.VARKEY, STAFF NO.407, OFFICER, SOUTH MALABAR GRAMIN BANK, VYTHIRI. BY ADV. SRI.S.P.ARAVINDAKSHAN PILLAY SMT.RESMI G. NAIR RESPONDENT(S): --------------- 1. SOUTH MALABAR GRAMIN BANK, H.O. MALAPPURAM, REP. BY ITS GENERAL MANAGER. 2. CHAIRMAN, SOUTH MALABAR GRAMIN BANK, H.O. MALAPPURAM. 3. GENERAL MANAGER, PERSONNEL ADMINISTRATION DEPARTMENT, SOUTH MALABAR GRAMIN BANK, H.O.MALAPPURAM. ADV. SRI.T.R.RAVI THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 14/10/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P.NO.21752/99. ## APPENDIX ## PETITIONER'S EXHIBITS: - P1. COPY OF THE ORDER DTD.18.1.95 BY R2. - P2. COPY OF THE PROCEEDINGS OF THE CHAIRMAN DTD.20..11.95. - P3. COPY OF THE REPRESENTATION DTD.15.4.96. - P4. COPY OF THE LETTER DTD.18.12.96 TO R3. - P5. COPY OF THE APPEAL DTD.10.1.97. P6. COPY OF THE LETTER DTD.5.1.98 OF R3. ## Sdk+ ///True copy/// P.A. to Judge S.SIRI JAGAN, J. ================== ## O.P.No.21752 of 1999 ================== Dated this the 14[th] day of October, 2008 **==> picture [105 x 11] intentionally omitted <==** The petitioner is an employee of the 1[st] respondent Bank. Having been found guilty in a criminal case by the trial court, he was dismissed from service, by Ext.P1 order. Later, by Ext.P7 judgment, this Court, in an appeal filed by the petitioner against the conviction by the trial court, set aside the conviction on the ground that no case has been made out against the petitioner. Thereafter, by Ext.P2 order, he was reinstated in service. In Ext.P2 it is stated that his absence from duty from 8.1.1995 till the date of rejoining will be treated “as absence without leave and hence on loss of pay”. The petitioner's representation in this regard was rejected by Ext.P4 order. The petitioner filed Ext.P5 appeal before the Board of Directors of the Bank, who also confirmed the earlier orders, by Ext.P6 order. The petitioner is challenging Exts.P2, P4 and P6 to the extent it deny the petitioner salary and allowances during the period when he was kept out of service because of the conviction in the criminal case. According to the petitioner, by Ext.P7 judgment, this Court had 2 o.p.21752/99 honourably acquitted the petitioner. He therefore, submits that going by the service rules applicable to the petitioner, he is entitled to get full pay and allowances during the period when he was kept out of service. He relies on certain clauses in SMGB Staff Regulations applicable to the petitioner. Regulation 29(4) deals with reinstatement of a person whose conviction in a criminal has been set aside by a higher court, which reads thus: “Where an officer or employee has been dismissed in pursuance of sub regulation (3) and the relative conviction is set aside by a higher court and the officer or employee is honourably acquitted he shall be reinstated in service.” Although the rules provide for the manner in which a person's suspension period has to be regulated when he is not imposed with any penalty, no corresponding provision is seen in respect of an employee dismissed from service on being convicted in a criminal case, who is subsequently reinstated pursuant to acquittal. The petitioner would submit that the petitioner is entitled to the same benefit as applicable to a person who was suspended from service and who was not found guilty in the departmental proceedings which is reinstatement with full salary and allowances. The petitioner also relies on the Supreme Court decision in _**BRAMHA CHANDRA GUPTA v. UNION OF INDIA**_ [(1984) 2 3 o.p.21752/99 SCC 433] in support of his contentions. 2. The learned Standing Counsel for the Bank points out that the Supreme Court had occasion to deal with an exactly identical case in _**UNION OF INDIA AND OTHERS v. JAIPAL SINGH**_ [(2004) 1 SCC 121], wherein the Supreme Court held that the employee dismissed from service on conviction and reinstated on acquittal in appeal is not entitled to back wages for the period of absence ie., from the date of dismissal to reinstatement and therefore, the petitioner is not entitled to the reliefs prayed for in the original petition. 3. In answer to the contentions raised by the counsel for the respondents, the learned counsel for the petitioner points out that _**Brahma Chandra Gupta's case**_ (supra) cited by him is a three Bench decision whereas _**Jaipal Singh's case**_ (supra) is a two Bench decision and therefore, the decision in _**Brahma Chandra Gupta's case**_ (supra) should prevail. 4. I have considered the rival contentions in detail. 5. On a reading of the decision in the _**Brahma Chandra Gupta's case**_ (supra) I find that in that judgment the Supreme Court had not laid down any proposition of law as such. In fact a 4 o.p.21752/99 reading of paragraph 6 of the judgment would show that the Court was not inclined to hear the question on merits at all. On the other hand, the Court thought that the petitioner in that case must receive a measure of socio-economic justice. Therefore, that decision was clearly on the facts of the particular case invoking the power of the Supreme Court to do complete justice to parties, which cannot be taken as a proposition of law, especially since in _**Jaipal Singh's case**_ (supra), following another judgment in _**Ranchhodji Chaturji Thakore v. Supdt. Engineer, Gujarat Electricity Board**_ [(1996) 11 SCC 603] the Supreme Court had in an identical case held that such employee on acquittal is not entitled to back wages. In that decision the Supreme Court held thus: “4. On a careful consideration of the matter and the materials on record, including the judgment and orders brought to our notice, we are of the view that it is well accepted that an order rejecting a special leave petition at the threshold without detailed reasons therefor does not constitute any declaration of law by this Court or constitute a biding precedent. Per contra, the decision relied upon by the appellant is one on merits and for reasons specifically recorded therefor it operates as a binding precedent as well. On going through the same, we are respectful agreement with the view taken in _Ranchhodji_ . If prosecution, which ultimately resulted in acquittal of the person concerned was at the behest of or by the 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 5 o.p.21752/99 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 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 insofar as it directed payment of back wages is liable to be and is hereby set aside.” (emphasis supplied) The facts of that case and this case are exactly identical. Therefore, I am bound to follow that judgment. That being so, clearly law says that the petitioner is not entitled to back wages till the date of acquittal. In the above circumstances, I dispose of this original petition declaring that the petitioner is not entitled to any back wages till the date of acquittal and that he would be entitled to backwages from the date of acquittal till the date of actual reinstatement in service. sdk+ Sd/S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge 6 o.p.21752/99 ## S.SIRI JAGAN, J. ================== ## O.P.No.21752 of 1999 ================== Dated this the 14[th] day of October, 2008 O R D E R Judgment in this case was dictated on 13.10.2008 in the absence of the counsel for the respondents. After the judgment was pronounced, the counsel for the respondents appeared before me and made a request that he also may be heard in the matter. It is under the above circumstances, I have posted this original petition today. In view of the fact that the counsel for the respondents was not heard, I recall my judgment dictated on 13.10.2008 and the matter is taken up for hearing afresh. sdk+ S.SIRI JAGAN, JUDGE o.p.21752/99 7