Monday, July 22, 2013

Mohammed Abdur Raheem vs State Bank Of India on 14 July, 2011, Madurai bench of madras HC


We have reasons to believe that this judment has been set aside by the honourable supreme court of India.... so this is posted here JUST for info and chronology of event s!


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Breif facts
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  • Husband IS working in state bank of India
  • His wife , ablaa naari, files dowry case
  • lower court convicts husband\
  • bank dismisses husband
  • then husband goes on appeal
  • husband wins appeal and is aquqitted in appeal
  • bank re instates husband but WITHOUT back wages
  • but many years are lost in this process
  • so husband seeks back wages
  • bank refuses back wages
  • husband wins case in madras HC and madras HC says back wages are to be paid

  • NOW We have reasons to believe that this judment has been set aside by the honourable supreme court of India, MEANING the husband WILL NOT get back wages 

  • this IF true will be a setback to honest husbands !!!


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Madras High Court

Mohammed Abdur Raheem vs State Bank Of India on 14 July, 2011

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

Dated: 14/07/2011

Coram

THE HONOURABLE MR. JUSTICE VINOD K. SHARMA

Writ Petition(MD)No.8079 of 2005

Mohammed Abdur Raheem,

aged 54 years,

S/o. Sokku,

724, Rethinasamy Nagar,

6th Street, Nanjikottai Road,

Thanjavur, Thanjavur District. ...... Petitioner

Vs

1. State Bank of India,

Rep. by its Chief General Manager,

Rajaji Salai, Chennai - 1.

2. The Asst. General Manager,

(Region II),

State Bank of India,

Zonal Office,

Mc. Donald's Road,

Thiruchirappalli. ...... Respondents

Writ Petition filed under Article 226 of the Constitution of India praying for issuance of a Writ of Certiorarified Mandamus, to call for the proceedings of the second respondent in AGM-II/12/04677 dated 07.11.2002 and quash the impugned order in so far as it relates to the refusal to grant backwages for the period from the date of discharge till the date of reinstatement of the petitioner in service and direct the second respondent to pay backwages to the petitioner for the period between 07.06.1999 to 07.11.2002.

!For Petitioner ... Mr. M. Karunanithi

^For Respondents... Mr. N. Murugesan

- - - - - - - -

:ORDER

The petitioner prays for issuance of a Writ in the nature of Certiorari, to quash the order dated 07.11.2002, passed by the Assistant General Manager, Region II, State Bank of India, Thiruchirappalli, denying to the petitioner the benefit of backwages.

2. The admitted facts of the case, are that the petitioner is working as an Assistant (Accounts) with the State Bank of India at Main Branch, Thanjavur. The petitioner was earlier appointed as award staff in the main branch of State Bank of India, Thanjavur.

3. A criminal case was registered against the petitioner under Section 498(A) I.P.C., read with Section 4 of the Dowry Prohition Act. The petitioner was convicted by the learned Additional Sessions cum Chief Judicial Magistrate, Ramanadapuram on 03.11.1997 and sentenced to undergo imprisonment for six months and to pay a fine of Rs.500/-.

4. The petitioner was discharged from service, on account of his conviction by the Criminal Court. The ground for dismissal was, that the conduct leading to the conviction of the petitioner amounted to moral turpitude, which entitled the respondents to dispense with the services of the petitioner.

5. It is not in dispute that the discharge of the petitioner was solely based on the conviction by the Criminal Court and no departmental proceedings were held against him.

6. The petitioner preferred an Appeal against his conviction and sentence. The sentence awarded to the petitioner was suspended and thereafter, the appeal was allowed vide Judgment dated 22.02.2002, acquitting the petitioner of the charge.

7. The petitioner had challenged the order of discharge by filing W.P.No.12056 of 1999. The writ petition was filed pending criminal appeal. The writ was dismissed, being pre-mature.

8. However, the petitioner was given liberty to work out his remedy, depending on the outcome of the criminal appeal.

9. The petitioner, after acquittal made a request for his reinstatement. His request was partly accepted, and by way of the impugned order, while reinstating the petitioner with continuity of service and other benefit, the petitioner was denied the backwages. The impugned order reads as under:-

"Request for Reinstatement

Please refer to our letter No.AGM II/12/1815 dated 07.06.1999 discharging you from Bank's Service and your letter No.Nil dated 22.04.2002 requesting your reinstatement.

2. In this connection it has been decided to reinstate you in service at THANJAVUR BRANCH.

3. Please note that you are reinstated with continuity of service but without back wages.

4. Please therefore report immediately to the THANJAVUR BRANCH".

10. The petitioner made a representation against the impugned order by claiming the backwages. The second respondent vide order dated 16.08.2005 rejected the request of the petitioner for grant of backwages.

11. The petitioner, thereafter, has approached this Court by filing this writ petition.

12. The learned counsel for the petitioner, vehemently contends that the impugned part of the order, denying backwages to the petitioner, cannot be sustained in law, as the only reason for his discharge was the conviction by the Criminal Court. Therefore, on acquittal, the petitioner was entitled to all the benefits, including backwages, as the decision of the Court always operates retrospectively, therefore for all intended purpose, he was innocent right from the date of registration of F.I.R against him. The order of discharge therefore was contrary to law.

13. It is also the contention of the learned counsel for the petitioner, that the respondent at no stage had instituted departmental proceedings and the order was based on conviction by the Criminal Court, therefore, on acquittal, respondents were bound to restore status quo anti to the petitioner, which entitled him of the consequential benefits arising from reinstatement in service.

14. In support of the contention, the learned counsel placed reliance on the decision of a Division Bench of this Court in THE SECRETARY, VALLALAR GURUKULAM HIGHER SECONDARY SCHOOL, VADALUR, CUDDALORE DISTRICT ..VS.. DISTRICT EDUCATIONAL OFFICER, CUDDALORE, CUDDALORE DISTRICT (2005 (4) C.T.C. 7) wherein the Division Bench of this Court was pleased to lay down as under:- "6. Hence it was open to the school management to take both kinds of proceedings against the teacher concerned, but it did not choose to institute departmental proceedings against him or issue him any departmental charge memo. The result was that there was only one proceeding against the teacher i.e., criminal proceeding in which he has been acquitted. Once a person is acquitted in a criminal case, it has to be deemed that he never committed that offence. This is because every judgment operates retrospectively unless expressly made prospectively, unlike a legislation which normally operates prospectively unless expressly made retrospectively. Since the employee has been acquitted in the criminal case that judgment will operate retrospectively and it has to be deemed that the teacher concerned was never guilty of that offence. Consequently, he is entitled to his salary for the period of his unemployment and he is entitled to reinstatement. We see no infirmity in the order of the learned single Judge. The position may have been different if disciplinary proceedings had also been instituted against the respondent, but that was not done.

7. Learned counsel for the appellant submitted that another teacher has been employed in the place of the second respondent and he has been getting salary. In our opinion, if there is only one vacancy, then obviously the new teacher has to go out and the second respondent has to come in again because his suspension was clearly illegal as it has to be deemed that he was never guilty of the criminal offence"

15. Reliance was also placed on the Judgment of the Hon'ble Supreme Court in the case of UNION OF INDIA ..VS.. MADHUSUDAN PRASAD (2003 (4) C.T.C. 796) wherein the Hon'ble Supreme Court was pleased to lay down as under:- "6. The above case was concerning an employee, proceeded, who was found guilty in an enquiry but the report was not furnished to the employee and show cause notice was not served on him. In view of the facts and circumstances of the case, the Court directed appropriate order should be passed regarding the back wages. In the instant case the appellate authority directed reinstatement of the respondent and held that he was not entitled to get back wages for the period he was out of service. It may be noticed that the respondent was removed from service without any enquiry and he was not even given show cause notice prior to his dismissal from service. There was fault on the part of the employer in not following the principle of natural justice. These relevant facts were considered and the learned Single Judge and also the Division Bench ordered the payment of back wages. We do not think that is a fit case where the Fundamental Rule 54 could have been invoked by the authorities. We find no merit in the appeal. The appeal is accordingly dismissed."

16. On the other hand, the learned counsel for the respondents / Bank contends, that no fault can be found with the order passed by the second respondent, as the petitioner was discharged on account of conviction by a Criminal Court and on acquittal, he was only entitled to reinstatement and not backwages.

17. In support of his contention, the learned counsel for the respondents placed reliance on the Judgment of the Hon'ble Supreme Court in RANCHHODJI CHATURJI THAKORE ..VS.. SUPERINTENDENT ENGINEER, GUJARAT ELECTRICITY BOARD (A.I.R. 1977 S.C. 1802) wherein it has been held as under:- "3. 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 hit conduct of involving himself in the crime that was taken into account for his not being in service of 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. The learned Single Judge and the Division Bench have not committed any error of law warranting interference."

18. It is well settled, that the denial of backwages can only be in case, some fault can be with the employee in not performing his duties. If the employee is not permitted to perform his duties, and subsequently action of the Management is held to be bad, the denial of backwages will amount to punishment for no fault of him, which cannot be sustained in law.

19. In the present case, in spite of registration of the case, the petitioner was not placed under suspension. The petitioner continued to work with the bank till the date of conviction. Even after the conviction, the sentence of the petitioner was ordered to be suspended by the Appellate Court, and the order was operative during the pendency of the Criminal Appeal.

20. In spite of the suspension of sentence, the respondents did not allow the petitioner to work. The order of discharge was passed solely on the basis of the conviction in the Criminal Court. Admittedly, the petitioner was acquitted of the charge.

21. In view of the acquittal by the Criminal Court, the petitioner was entitled to reinstatement of service, and there is absolutely no justification with the respondents to deny the back wages to the petitioner, as no fault can be found with him, as petitioner was always willing to perform his duties.

22. The Judgment of the Hon'ble Supreme Court in the case of RANCHHODJI CHATURJI THAKORE (supra) will not be applicable to the facts of this case, in the Judgment it has been laid down that each case is to be decided on its facts. No precedent has been laid, that an employee on reinstatement is not entitled to back wages.

23. As already observed above, in the case in hand, the petitioner was at no stage incapacitated to perform his duties, as he was not confined in jail, at any stage either before or after conviction.

24. Consequently, this writ petition is allowed, the impugned order dated 07.11.2002 passed by the second respondent, in so far as it relates to the refusal to grant backwages for the period from the date of discharge till the date of reinstatement of the petitioner in service is quashed. The petitioner held entitled to backwages also for the period he remained out of service. No costs.