Union of India & Ors Vs. Shri Bihari Lal
Sidhana [1997] INSC 339 (25 March 1997)
K.
RAMASWAMY, D.P. WADHWA
ACT:
HEADNOTE:
O R D
E R Leave granted. We have heard learned counsel on both sides.
This
appeal by special leave arises form the judgment of the Division Bench, made on
September 12, 1996 in L.P.A.No.215/1979 by the Delhi
High Court. While the respondent was working as a cash clerk in Delhi Milk
Scheme, temporary Mis-appropriation of the funds on more than one occasion was
discovered. When misappropriation of Rs.17,744,91 on April 2,1972 was reported, a prosecution was
pending, orders were passed by the competent authority on April 24, 1972 as under :
"In
pursuance of the proviso to sub-rule (1) of Rule 5 of the Central Civil
services (Temporary Services) Rules. 1965, I hereby terminate forthwith the
services of Shri B.L. Sidhana, Case clerk (under suspension), Delhi milk scheme
and direct that he shall be paid a sum equivalent to the one equivalent to the
amount of pay and allowances fr a period of notice) was drawing them
immediately before the date on which he was drawing them immediately before the
dated on which he was placed under suspension." The respondent was
acquitted of the charge in the criminal case and therefore, he filed a writ petition.
In his order, the learned single Judge held thus :
"The
petition of Cash Clerk is one of confidence and responsibility.
Even
if the incidents averred against the petitioner were not proved, they were
such, as to lead a prudent employer to terminate the services of the employer
to terminate the services of the employee on the ground of his, not being
desirable. The order of termination was passed, as noticed above, one year
after the criminal case had started and two years after the enquiry. The
enquiry appears not to have been completed, so, no definite opinion had been
arrived as with regard to the guilt of the petitioner. No. evil consequences
were visited on the termination. No. evil consequences were visited on the
petition as a result of the order of termination.
Nor
has any stigma been attached.
No.
penalties were inflicted on the petitioner despite the enquiries, and the
started of the criminal case. In the circumstances the order of termination simpliciter
is valid. Since the order is innocuous, there is no need to peer behind it,
unless malafides had been established." On appeal, the Division Bench
reversed it, holding that the order of removal does indicate that it was
termination of the services of the respondent with stigma attached by
mentioning (under suspension). Rule 5(1) of the central civil services
(Temporary service) Rules, 1965 was exercise with stigma attached in the order.
The order does indicate that he was under suspension. It postulates that it was
by way of a misconduct and thereby without conducting the enquiry, the
termination of the service of the respondent was illegal. Consequently, instead
of reinstating him into service the court directed the appellant-employer to
pay him compensation in a sum of Rs. 2.50 lakhs. Aggrieved by that order, this
appeal has been filed.
It is
true that respondent was acquitted by the criminal court but acquittal does not
automatically gives him the right to be reinstated into the services. It would
still be open to the competent authority to make decision whether the
delinquent Government servant can be taken into service or disciplinary action
should be taken under the Central civil services (Clarification, Control &
Appeal) Rules or under the Temporary services Rules. Admittedly, the respondent
had been working as a temporary Government servant before he was kept under
suspension. The termination order indicated the factum that he, by then, was
under suspension. It is only a way of describing him a being under suspension
when the order came to be passed but that does not constitute any stigma. Mere
acquittal of Government employee does not automatically entitle the Government employe
does not automatically entitle the Government servant to reinstatement. As
stated earlier, it would be open to the appropriate competent authority to take
a decision whether the enquiry into the conduct is required to be done before
directive reinstatement of appropriate action should be taken as per law, if
otherwise, available. Since the respondent is only a temporary Government
servant, The power being available under Rules, it is always open a temporary
Government servant, the power being available under rules, it is always open to
the competent authority to invoke the said power and terminate the service of
the employe instead of conducting there enquiry or to continue in service a
Government servant accused of defalcation of public money. Reinstatement would
be a charter for him to indulge with impunity in misappropriating of public
money.
Under
these circumstances, the Division Bench of the High court was clearly in error
in directing payment of the compensation which amounts to premium for
misconduct.
The
appeal is accordingly allowed. The judgment of the Division Bench stands set
aside and that of the learned single Judge stands confirmed. The writ petition
stands dismissed. No costs.
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