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2009(5) Supreme 250
SUPREME COURT OF INDIA
(From Patna High Court)
Tarun Chatterjee and H.L. Dattu, JJ.
Basanti Prasad — Appellant
versus
The Chairman, Bihar School Examination Board and Others — Respondents
Civil Appeal No. 3564 of 2009
(Arising out of SLP(C) No. 9263 of 2008)
Decided on : 14-05-2009
AIR 1967 SC 1450; (1969) 1 SCR 808; (1874) 5 PC 221; (1986) 4 SCC 566 – Relied upon.
(b) Service Law – Dismissal – Delinquent dismissed in view of the order of conviction passed by the Magistrate – Therefore he could not have questioned the dismissal till the Magistrate’s order was set aside by a superior forum – Thus there was no delay or laches or negligence on the part of the appellant – High Court not justified in rejecting the writ petition on ground of delay and laches. (Para 19)
(c) Service Law – Dismissal – Dismissal ordered in view of conviction by a criminal court, and not as a result of departmental proceeding – Therefore on the conviction having been set aside by a superior forum and that attaining finality, dismissal ought to have been set aside. (Para 21)
(d) Service Law – Back wages – Grant of back wags depends upon a number of factors – Since the delinquent was acquitted in appeal posthumously, he is not entitled to back wages – He is entitled to pension, though. (Para 23)
(2006) 5 SCC 446 – Relied upon.
Facts of the case :
1. The appellant is the wife of deceased Bhrigu Ashram Prasad. While he was alive, he was working as an Assistant in Bihar School Examination Board.
2. Sometime in the year 1976, criminal proceedings ere initiated against the appellant’s husband for tempering with the Marks Sheets and he was kept under suspension.
3. After the trial, the Judicial Magistrate had convicted the appellant’s husband and other employees of the Board for the offences alleged in the charge sheet and sentenced them to undergo rigorous imprisonment for two years for each of the offences by his order dated 7.2.1989.
4. The appellant’s husband and other charge sheeted employees had filed Criminal Appeals before the Additional Sessions Judge.
5. While the appeals were pending for consideration, the Bihar School Examination Committee, Patna, by its order dated 4th August, 1992, terminated the services of the appellant’s husband, since he had been convicted by the learned Chief Judicial Magistrate.
6. The appellant’s husband expired during the pendency of the appeal.
7. The learned Sessions Judge, Patna, has allowed the appeals and thereby has acquitted the appellant’s husband and others.
8. The appellant approached the Bihar School Examination Committee representing that since her husband has been honourably acquitted by the Sessions Court her husband is deemed to have remained in service till the date of retirement from service and, therefore, she is entitled for all the retiral benefits of her late husband.
9. Since her representations were rejected by the Board (Committee), the appellant filed writ petition before High Court which was rejected.
Finding of the Court :
High Court erred in rejecting the writ petition.
Result : Appeal allowed.
ORDER
1. Leave granted.
2. This is a petition for special leave to appeal under Article 136 of the Constitution from the judgment and order dated 12.7.2007 of the High Court of Judicature at Patna in L.P.A. No. 521 of 2007. By the impugned judgment, the High Court has dismissed the appeal.
3. The relevant facts are, the appellant is the wife of deceased Bhrigu Ashram Prasad. While he was alive, he was working as an Assistant in Bihar School Examination Board.
4. Sometime in the year 1976, the appellant’s husband was kept under suspension on account of initiation of criminal proceedings against the appellant’s husband and other employees of the Board for tempering with the Marks Sheets of several candidates who had appeared in the Annual Secondary School Examination.
5. On the complaint filed by the Board, the jurisdictional police authorities had filed charge sheet against the appellant’s husband and other employees of the Board under Section 420, 467, 471, 458 and 120-B of the I.P.C. before Judicial Magistrate, Patna. After the trial, the Judicial Magistrate had convicted the appellant’s husband and other employees of the Board for the offences alleged in the charge sheet and sentenced them to undergo rigorous imprisonment for two years for each of the offences under Section 467, 468, 471 and 120-B of the I.P.C. by his order dated 7.2.1989.
6. The appellant’s husband and other charge sheeted employees had filed Criminal Appeals before the Additional Sessions Judge, Patna, being aggrieved by the order passed by the Judicial Magistrate, Patna.
7. While the appeals were pending for consideration, the Bihar School Examination Committee, Patna, by its order dated 4th August, 1992, terminated the services of the appellant’s husband, since he had been convicted by the learned Chief Judicial Magistrate, Patna, for offences under I.P.C. in Crime Case No. 18/7/TR No. 121/1998 of Police Station Kotwali, Patna.
8. The appellant’s husband expired during the pendency of the appeal before the Sessions Court, Patna. With the permission of the court, the appellant herein had continued to prosecute the criminal appeal. The learned Sessions Judge, Patna, has allowed the appeals and thereby has acquitted the appellant’s husband and others.
9. After disposal of the criminal appeal, the appellant had approached the Bihar School Examination Committee by filing representations, inter alia representing, that, since her husband has been honourably acquitted by the Sessions Court in the criminal appeal filed by him against the order of conviction passed by the Judicial Magistrate, the appellant’s husband is deemed to have remained in service till the date of retirement from service and, therefore, she is entitled for all the retiral benefits of her late husband. Since her representations were rejected by the Board (Committee), the appellant was constrained to file the writ petition before High Court of Judicature at Patna in C.W.J.C. No. 14536 of 2005, inter alia seeking a writ in the nature of mandamus to the Bihar School Examination Board to settle all the monetary and service benefits payable to her late husband. During the pendency of the writ petition, appellant had filed I.A. No. 1256 of 2007, inter alia requesting the court to issue a writ in the nature of certiorari to quash the order passed by the Board (Committee) dated 4th August, 1992, terminating the services of the appellant on the ground that he has been convicted in a criminal case.
10. The court has rejected the writ petition, primarily on the ground that, since the appellant’s husband had not questioned the order of termination dated 4.8.1992, while he was alive and at this belated stage the appellant cannot be permitted to question the order of termination of services passed by the Board (Committee). According to the learned Judge, the delay and laches on the part of the appellant in questioning the said order by filing application on 26.2.2007 is fatal and the same cannot be condone
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