ASHOK KUMAR SHARMA Vs. ZONAL MANAGER

JUDGEMENT

(1.) The point that arises for consideration is the entitlement of the petitioner to a claim salary during the period when he was removed from service and later reinstated on account of a criminal court conviction that was current during the period of his termination and the reinstatement having been ordered when the criminal court judgment was reversed in the higher forum. The issue has an immediate relevance to the principle that comes up for consideration time and again, namely, the principle of 'no work, no pay' and the exceptions that are recognized by the judicial principles. The petitioner had been an officer in a Bank and a criminal case had been instituted against him for some alleged offences under Section 5(2) read with Section 5(1) (d) of the Prevention of Corruption Act. During all the time when the case was pending before the trial Court, the petitioner continued in service, but when the criminal court entered the conviction, the Bank served a notice against him to show cause against termination and despite the fact that the petitioner had obtained suspension of sentence and had been on bail, the Bank proceeded to terminate him from service. On the criminal court rendering a judgment on 23.11.2002 acquitting him, the petitioner was reinstated in service with continuity of service. However, his claim for salary during the entire period had been denied to him which the counsel for the petitioner contends as unreasonable. The Learned Counsel would point out to the fact that the petitioner had sought for continuation in service and expressed his willingness to continue on the basis of bail order obtained at the higher forum even when the case was pending and would further point out that during all the time when the trial was in progress, he had not been suspended or removed from service. Therefore, according to him, there was no justification for proceeding with the termination order when he had been convicted and when he had obtained a suspension of sentence.

(2.) The Learned Counsel appearing on behalf of the petitioner would refer to the interim order passed in the criminal appeal on 14.08.1996 where the petitioner had sought for suspension of conviction itself, for certain observations contained therein. It is seen from the text of the order that he had contended, that a mere suspension of sentence would not be sufficient, for, if the criminal court judgment were to go in his favour, it would cause serious financial loss. In that context, the Court had observed that if he succeeded in appeal or other proceedings, the matter could always be reviewed in such a manner that he suffered no prejudice by dismissal from service. The Court had observed that once conviction and sentence awarded against him were vacated, the petitioner would be entitled to all the consequential service benefits, like reinstatement, pay and other benefits. These observations, according to the Learned Counsel, would secure to him the benefit of his entitlement for full salary during the period when termination order was in force. The Learned Counsel would also refer to the decision of the Hon'ble Supreme Court in Union of India Versus K. V. Jankiraman, 1991 AIR(SC) 2010, when the Court held that where an employee had been completely exonerated of the charge and when the employee had not been allowed to continue in service, despite the employee expressing his willingness to work, it would bar the employer from denying to the employee the full wages from the time when he was prevented from working. The counsel also refer to the decision in Burn Standard Company Ltd. and another Versus Tarun Kumar Chakraborty and others, 2002 10 SCC 585, that held that a person, who had been initially prevented from joining by virtue of a Court order obtained at the instance of yet another person, could have been later inducted in the service when the Court order had been vacated and in such a situation, the Court found non-employment by the employer of prospective candidate, who had been previously selected, had no reasonable justification and found him entitled to full salary and allowances for the period from the day when the Court order was vacated till the date when the person had been actually allowed to join. In yet another decision of the Hon'ble Supreme Court in Principal, Ayurvedic College and others Versus Sushil Chandra Misra and another, 2006 12 SCC 703, while examining the issue of the principle of 'no work, no pay', the Hon'ble Supreme Court had allowed for payment of 50% of salary. In a Division Bench ruling of this Court in Sunder Singh Versus State of Haryana and others, 2001 2 SLR 270, this Court held that if an employee had been suspended from service during criminal proceedings, the acquittal by the criminal court will restore to the employee all the arrears of salary including allowances of suspension period forthwith.

(3.) The entitlement of a person to claim salary for the period when he was kept out of employment would always require to be seen in the context of not merely the fact of whether the employee was willing to work during the period when the case was pending but also from the point of view of whether the employer was unreasonable in keeping the person out of employment. If one exists, it may not be sufficient but both factors must go exist. The fact that the petitioner was prepared to work answers only one side of the story. The other crucial aspect was whether the Bank was unjustified in keeping him out of employment. In this case, I notice that the Bank had not adopted any hasty action of even suspending him from service or terminating him, when a CBI case had been instituted against him for alleged offences under the Prevention of Corruption Act. The petitioner had actually continued in service but the show cause notice had been issued to him only after he had been convicted by the criminal court. Again, it can be noticed that the termination at that time was made only after serving a notice. The petitioner himself knew that there was a difference between how a stay of conviction and a stay of sentence and a mere stay of sentence would still operate against the prospect of continuation in employment. It was not without any reason that he had filed a CM No. 12854 of 1996 and made an issue about the fact that not merely the suspension of sentence must be given but even the conviction must be suspended. When the Court observed that such a leave cannot be granted, it made an observation referred to above, which I would characterize as only gratuitous that if he had come by favourable consideration, he would also be entitled to all the benefits. It was not a case where the Bank was a party, when the Court was making such an observation to be used against a Bank, subsequently. The question of entitlement of wages during the period when he had lost service could be determined only at an appropriate time when the party, who had a stake, could raise its objection. I would, therefore, discard these observations as not in any way binding for this Court to immediately accede to the petitioner's request that the observation made was sufficient to secure to him all the monetary benefits.