Period Of Absence Of Convicted Employee Who Is Later Acquitted To Be Counted Towards Seniority And Subsistence Allowance But Not Backwages: Delhi HC

The Delhi High Court has ruled that the period under which an employee is placed under suspension, cannot be treated as period “not spent on duty” for all intents and purposes. The court remarked that the period can be treated as “not spent on duty” only for the purposes of back wages and not for the purposes of seniority and promotion.

The court also said that an employee who is placed under suspension and dismissed from services on conviction in criminal proceedings, and later re-instated on his acquittal in appeal, will not be entitled to back wages or any pay or allowances for the period of suspension on the basis of the principle of “no work, no pay”. However, the employee would be entitled to subsistence allowance during the suspension period, adding that the denial of the same would amount to violation of Article 21 of the Constitution of India.

“The very nomenclature of subsistence allowance demonstrates that the same is given to an employee to sustain himself and his family during the period of suspension. Subsistence allowance is not a largesse, but the statutory right of an employee, and any denial of the same would amount to violation of Article 21 of the Constitution of India,” the bench of Justices V. Kameswar Rao and Anoop Kumar Mendiratta said.

The court was also of the view that the period of suspension, treated as “not spent on duty”, will be counted for the purpose of assessing and granting seniority and consequential benefits including promotion to the employee.

The court made the observation while hearing the petition filed by a former constable of Delhi Police (deceased), whose plea for grant of back wages, seniority, promotion and other benefits for the period of suspension, was rejected by the Central Administrative Tribunal (CAT).

The petitioner was arrested for his alleged involvement in an FIR for the offence of theft and cheating. He was later placed under suspension in view of the pendency of the criminal case against him.

After the Trial Court found the petitioner guilty in the criminal proceedings, he was dismissed from service in 2014, in terms of Rule 11 of the Delhi Police (Punishment and Appeal) Rules, 1980. It was also ordered that the period of his suspension, from November 18, 1996 to July 16, 2012, be treated as period not spent on duty for all intents and purposes.

In the appeal filed against the conviction and sentence, the petitioner was acquitted from all the criminal charges. In view of the same, the petitioner was reinstated in service on November 26, 2015 with notional benefits, but without any arrears or back wages for the period of dismissal.

The High Court was informed that the petitioner had not been paid any salary or any subsistence allowance during the period of his suspension.

The court remarked that the denial of subsistence allowance to the petitioner during the period he was placed under suspension, would amount to violation of Article 21 of the Constitution.

“The law in this regard is very well settled in terms of a catena of judgments, including the decision of the Supreme Court in M. Paul Anthony v. Bharat Gold Mines Ltd., (1999) 3 SCC 679. If the subsistence allowance was not paid to the petitioner, he shall be entitled to the same at the rate applicable under the rules, along with interest for the period for which he was denied the same,” the court said.

With respect to the plea for grant of back wages, the court, after referring to a catena of judgments of the Supreme Court, said that, when an employee gets involved in a crime, disabling himself from rendering his services on account of conviction or incarceration, even if he is subsequently acquitted on appeal and re-instated in service, he cannot, as a matter of right, claim back wages for the period when he was not in service.

On the issue whether the petitioner was entitled to seniority in line with his batch-mates, the Delhi government argued that since the period of suspension of the petitioner was treated as “period not spent on duty” for all intents and purposes, he cannot be granted seniority and consequential benefits.

Rejecting this submission, the Court said that such a stand, if accepted, would have serious consequences, as the period between November 18, 1996 and July 16, 2012 would be written off in the career of the petitioner, significantly impeding his career advancement.

“Such a situation cannot be allowed to happen, more so when the petitioner has been acquitted by the Appellate Court and reinstated in service from the date of his initial dismissal,” the court said, adding that the period treated as “not spent on duty” will be counted for the purpose of seniority and also, for all consequential benefits.

“On account of the foregoing, we are of the view that the period from November 18, 1996 to July 16, 2012 cannot be treated as period not spent on duty for all intents and purposes. The period shall be counted for assessing and granting seniority and consequential benefits including promotion to the petitioner. However, on the basis of the principle of “no work, no pay”, he would not be entitled to any pay or allowances except subsistence allowance that is to be granted to him on the strength of this order,” the court said.

The court thus directed grant of subsistence allowance for the relevant period, along with interest. “The deceased employee shall be entitled to seniority and consequential benefits including promotion at par with the last junior of his batch. His case shall be considered in accordance with rules”, the court said, adding that if found fit, the consequential benefits shall be released to the legal representatives of the deceased employee, who have come on record.

Case Title: Vinod Kumar vs G.N.C.T. of Delhi and Ors.

Citation: 2023 LiveLaw (Del) 901

Dated: 25.09.2023

Counsel for the Petitioner: Mr. K.C. Mittal, Mr. Yugansh Mittal & Mr. Vaibhav Yadav, Advs.

Counsel for the Respondent: Mrs. Avnish Ahlawat, SC with Mr. Nitesh Kumar Singh, Ms. Tania Ahlawat, Ms. Palak Rohmetra, Ms. Laavanya Kaushik & Ms. Aliza Alam, Advs.

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