(WRIT PETITION UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA)
SATISH K. AGNIHOTRI, J.
1. Challenge in this petition is to the order dated 17.12.2008 (Annexure P/1) passed by the Central Administrative Tribunal, Jabalpur, in O.A. No. 748/2008. In addition, a direction to the respondents to pay full backwages with all the allowances for the period 19.11.1990 to 30.06.2004 with interest.
2. The case of the petitioner is that the petitioner, working as Senior Clerk in Mechanical Bill Section, South East Central railway, Bilaspur, was charge- sheeted under section 5(2) read with section 5(1) of the Prevention of Corruption Act, 1947 and section 161 of the Indian Penal Code, 1860 for having accepted bribe of Rs. 100/- from one Sukhchand on 21.05.1985. The petitioner was convicted by the Trial Court on 06.10.1990 in Special Case No. 161/1984. On conviction by the Trial Court, the petitioner was dismissed from service on 19.11.1990. Thereafter, the petitioner preferred an appeal before the High Court of Madhya Pradesh at Jabalpur in Criminal Appeal no. 979/1980. The High Court acquitted the petitioner of the charges on 06.07.2006. After acquittal, the order of dismissal dated 19.1.1990 was revoked on 21.04.2007. The petitioner could not be reinstated in service as he retired on attaining the age of superannuation on 30.06.2004. The petitioner preferred an application before the Central Administrative Tribunal, Jabalpur, Circuit Bench at Bilaspur, seeking following reliefs:
"To direct the respondents to pay full pay and allowances with interest to the applicant to whom he would have been entitled had he not been dismissed i.e. for the period commencing 19.11.1990 to 30.06.2004."
3. The Tribunal, relying on the decision of the Supreme Court in Union of India and Others v. Jaipal Singh held that the petitioner was not entitled to full pay and allowances from 19.11.1990 to 30.06.2004.
4. Shri Pramod Verma, learned Senior Counsel appearing with Shri Raghavendra Verma, learned Advocate for the petitioner, would submit that the ratio laid down in Jaipal Singh1 has not been properly applied to the facts of the instant case as the Supreme Court, in para 4 had observed that 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 in appeal subsequently the department can not, in any manner be faulted 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 that be retained in service.
5. Shri Verma would next contend that the respondent/Department had role in prosecution in question as the `sanction' was granted by the authorities. He would next contend that if the department had no role in prosecution, the department cannot be saddled with payment of backwages. But in the case on hand, since the prosecution of the petitioner proceeded after grant of sanction wherein the authorities have applied their mind before granting sanction and without grant of sanction the petitioner could not have suffered rigour of trial which ultimately resulted into acquittal from all charges, thus, the respondent/department is liable to pay all the backwages with allowances.
6. On the other hand, Ms. Naushina Afrin Ali, learned counsel appearing for the respondents would submit that the petitioner could not be allowed to work lawfully on account of pendency of the trial. The petitioner was caught red-handed, and as such, he was prosecuted in criminal case. The prosecution was not at the behest of the respondents as the petitioner was caught red-handed by a trap party by the officers of the C.B.I. A complainant was lodged before the Lokayukt, by the complainant Sukhchand, who was working as Fitter, Grade III at Karanji Railway station. The prosecution was on account of alleged demand of money as bribe by the petitioner. Granting sanction by the authorities cannot be placed at higher pedestal that had it not been granted, the case would not have been proceeded. Thus, the department should be saddled with the liability of payment of backwages.
7. Ms. Ali would further submit that order of the sanctioning authority i.e. the Senior Divisional Personnel Officer, Bilaspur was not challenged before any court. Thus, after acquittal from the High Court, the petitioner cannot be permitted to argue that the prosecution was at the behest of the Department or the Department had any role, thus, the petitioner is entitled to backwages after acquittal from the charges. She would next contend that the provisions for sanction is most salutary safeguard to save responsible officers from malicious prosecution. However, when on application of mind it was found that the alleged offence was of serious nature as the facts are in this case, the authorities could not have declined to grant sanction. Ms. Ali would rely on decisions of the Supreme Court in K.Veera Swami v. U.O.I., Jaswant Singh v. State of Punjab, Bishwabhushan Naik v. State of Orissa, Gokuldas Morarka v. The King, Madan Mohan Singh v. State of U.P., Mohd. Iqbal Ahmed v. State of A.P., R.S.Nayak v. A.R.Antulay, Inguva Malikarjuna Sharma v. State of A.P., Matajog Dubey v. H.C. Bihar, C.S.Krishna Murti v. State of Karnataka, Prakash Singh Badal and another v. State of Punjab and Others, State of Madhya Pradesh v. Harishankar Bhagwan Prasad Tripathi, Banshidhar v. State of Rajasthan, Union of India v. Jaipal Singh.
8. The facts are indisputable. The question of law which arises for out consideration is asto whether grant of sanction by the competent authority in case of an employee, amounts to prosecution at the behest of the Department or the Department has any role in prosecution of the employee. The Supreme Court, in Jaipal Singh, held as under:
"4.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 it 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 re- instatement cannot be sustained and the respondent has to be re- instated, 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 in so far as it directed payment of back wages are liable to be and is hereby set aside"
9. Contention of Shri Verma that the respondent had a role in prosecution of the petitioner, thus, it is the liability of the respondents to pay backwages cannot be countenanced. In Jaipal Singh, the word is not `role of the department/government', but if the prosecution was at the behest of the Department itself. In the case on hand, it cannot be held that the prosecution was at the behest of or by the respondent/Department as the petitioner was caught red-handed by the officers of the C.B.I. and C.B.I. was the prosecuting agency for the offence committed by the petitioner. It can also not be held as it was at the behest of the respondents.
10. The Supreme Court, in Prakash Singh Badal and another, observed on the requirement of sanction and necessity of sanction, as under:
"20. The principle of immunity protects all acts which the public servant has to perform in the exercise of the functions of the Government. The purpose for which they are performed protects these acts from criminal prosecution. However, there is an exception. Where a criminal act is performed under the colour of authority but which in reality is for the public servant's own pleasure or benefit then such acts shall not be protected under the doctrine of State immunity"
11. In State, through Anti Corruption Bureau, Government of Maharashtra, Bombay v. krishanchand Khushalchand Jagtiani, the Supreme Court, observed as under:
"8...It must be remembered that the object of Section 6(1)(C) or for that matter Section 197 of the Criminal Procedure Code is that there should be no unnecessary harassment of public servant; the idea is to save the public servant from the harassment which may be caused to him if each and every aggrieved or disgruntled person is allowed to institute a criminal complaint against him. The protection is extended against prosecution even by a State agency but the protection is not absolute or unqualified."
12. In Jaswant Singh, the Supreme Court defined the object of sanction as under:
"4.The object of the provision for sanctions is that the authority giving the sanction should be able to consider for itself the evidence before it comes to a conclusion that the prosecution in the circumstances be sanctioned or forbidden."
13. The sanction is not the final conclusion and also it cannot be held that by grant of sanction, the respondents had played any role. The sanctioning authority, after having considered the relevant facts, material and evidences produced before him, applied its mind. Prima facie view was made out in respect of object asto whether the prosecution was for the purpose to harass the public or there is some material for prosecution. Thus, it cannot be held that by grant of sanction to prosecute, the employee who was caught accepting bribe, comes within the definition of prosecution by the authorities or at the behest of the authority.
14. The word `prosecution' has been defined in P. Ramnatha Aiyar's Advanced Law Lexicon, 3rd Edition, 2005, as under:
"Prosecution is the institution or commencement of a criminal proceeding the process of exhibiting formal charges against an offender before a legal tribunal, and pursuing them to final judgement on behalf of the state or government or by indictment or information. A prosecution exists until terminated in the final judgment of the Court, to wit, the sentence, discharge or acquittal."
15. The word `prosecution' in the context of section 64 of the Narcotic Drugs and Psychotropic Substances Act, 1985 means the entire proceeding till the judgment of the court is delivered. (See: Jasbir Singh v. Vipin Kumar Jaggi, (2001) 8 SCC 289).
16. The Black's Law Dictionary, Eighth Edition, defines the term `prosecution' as under:
"1. The commencement and carrying out of any action or scheme < the prosecution of a long, bloody war > 2. A criminal proceeding in which an accused person is tried < the conspiracy trial involved the prosecution of seven defendants>. - Also termed criminal prosecution."
17. In Chambers 21st Century Dictionary, the term `at the behest' has been defined as under:
"behest noun, formal or old use a command or request. at the behest of someone or someone's behest at their request; when they asked or commanded. 12c: from Anglo-Saxon behaes or vow or promise."
18. The term `at the instance' has been defined in P. Ramnatha Aiyar's Advanced Law Lexicon, 3rd Edition, 2005, as under:
"At the instance of. On being urged by. It means `at the behest of, or at the solicitation of'. `Instance' does not imply same degree of obligation to obey as does `command'. Where a person acting for and on behalf of Electricity Board lodges a complaint with police in respect of unlawful extraction of electricity energy, the prosecution must be regarded as instituted at the instance of the Board. State of Karnataka v. Adimurthy, AIR 1983 SC 822."
19. In the case on hand, the validity of grant of sanction is not in question, therefore, it is not necessary to go into the question asto whether or not, sanction was rightly granted. Thus, the question asto sanction granted by the respondent authorities means prosecution or prosecution at the behest of the authorities, is answered in negative. In this case a raid was conducted and the employee/petitioner was caught red-handed by the C.B.I. officers and the prosecution was done by the C.B.I. and at the behest of C.B.I., not by the Railway authorities. The petitioner has not made out a case that he was out of service because of the Railway authorities. Thus, he is not entitled to grant of backwages.
20. In Banshidhar, the Supreme Court while considering grant of backwages in case of an employee who was exonerated from the charges by the High Court, held as under:
9. No hard and fast rule can be laid down in regard to grant to back wages. Each case has to be determined on its own facts. A grave charge of criminal misconduct was alleged against him. He was also found guilty of the charges levelled against him by the Special Judge. The High Court while delivering its judgment dated 16.01.2001 in S.B. Criminal Appeal No. 68 of 1985 inter alia held that the prosecution has not been able to prove that any demand had been made by him.
10. It is now a trite law that judgment of acquittal itself would not have exonerated him of the charges levelled against him. He could have been proceeded against in a departmental proceeding. (See Manager, Reserve Bank of India, Bangalore v. S. Mani and Others, and Commissioner of Police, New Delhi v. Narender Singh.)
13. Even in relation to the industrial disputes, this Court, in many judgments, has held that back wages need not be granted automatically although the order of termination passed against the concerned workman was found to be invalid. (U.P. State Brassware Corpn. Ltd. and Another v. Uday Narain Pandey and Municipal Council, Sujanpur v. Surinder Kumar)
21. In Ranchhodji Chaturji Thakore v. Superintendent Engineer, Gujarat Electricity Board, Himmatnagar (Gujarat) and Another, the Supreme Court observed as under:
"3.The question of back wages would be considered only if the respondents have taken action by way of disciplinary proceeding 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."
22. The decision of the Tribunal is just and proper and does not warrant any interference of this Court.
23. As an upshot, the writ petition is shorn of merit and is accordingly dismissed.
24. There shall be no order as to costs.