UNION OF INDIA AND ORS.versusSHRI BIHARI LAL SIDHANA

A                           UNION OF INDIA AND ORS.
                                        v.
                            SHRI BIHARI LAL SIDHANA

                                 MARCH 25, 1997

B                 .[K. RAMASWAMY AND D.P. WADHWA, JJ.]

            Service Law :

            Central Civil Services (Temporwy Se1vice) Rules, 1965 :
c
          Rule 5( 1)-Temiination-Delhi Milk Scheme-Cash cler~Mis-ap­
    propriation of funds by on more than one occasion-Prosecution launched--
    Employee placed under suspension-Pending prosecution, temiination order
    passed-Employee acquitted in criminal case--Writ petition claiming
D   reinstatement-Single Judge of High Court dismissed the claim-Division
    Bench reversed the judgment holding that order of removal indicated that it
    was temiination with stigma attached by mentioning (under suspension)-But
    instead of reinstating the employee, it directed the employer to pay him Rs.
    2.50 lakhs as compensation-Held, acquittal of Govemment employee does
E   not automatically entitle him to reinstatement-Employee being a temporary
    Govemment servant, power under JUie 5( 1) could be invoked instead of
    conducting an inquily-High Court erred in directing payment of compensa-
    tion--Order of Division Bench of High Cowt set aside and that of Single
    Judge restored.

F           CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2668 of
    1997.

          From the Judgment and Order dated 12.9.96 of the Delhi High Court
    in L.P .A. 215 of 1979.
G        V.R. Reddy, Additional Solicitor General, Ms. Sushma Manchanda
    and D.S. Mehra for the Appellants.

            Gurmeet Singh for the Respondent.

H           The following Order of the Court was delivered :
                                        364
                       U.O.l. v. B.L. SIDHANA                      365

     Leave granted. We have heard learned counsel on both sides.         A

      This appeal by special leave arises from 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 B
on more than one occasion was discovered. When misappropriation of
Rs. 17,744.91 on April 2, 1972 was reported, a prosecution was laid
against the respondent. While the 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 C
       Central Civil Services (Temporary Service) Rules, 1965, I hereby
       terminate forthwith the services of Shri B.L. Sidhana, Cash
       Clerk (under suspension), Delhi Milk Sclieme and direct that
       he shall be paid a sum equivalent to the amount of pay and
       allowances for a period of one month (in lieu of the period of D
       notice) was drawing them immediately before the date on which
       he was drawing them immediately before the date on which he
       was placed under suspension."

     The respondent was acquitted of the charge in the criminal case E
and therefore, he filed a writ petition. In his order, the learned single
Judge held thus :

       "The petition of the Cash Clerk is one of confidence and respon-
       sibility. Even if the incidents averred against the petitioner were
       not proved, they were such, as to lead a prudent employer to F
       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 com-
       pleted, so, uo definite opinion had been arrived as with regard G
       to the guilt of the petitioner. 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 start of the criminal
       case. In the circumstances the order of termination simpliciter H
    366                 SUPREME COURT REPORTS                 [1997] 3 S.C.R.

A           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).
B
    Rule 5(1) of the Central Civil Services (Temporary Service) Rules, 1965
    was exercised 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
C   reinstating him into service the Court directed the appellate-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 the respondent was acquitted by the criminal court
D   but acquittal does not automatically gives him the right to be reinstated
    into the service, It would still be open to the competent authority to
    take decision whether the delinquent Government servant can be taken
    into service or disciplinary action should be taken under the Central
    Civil Service (Classification, Control & Appeal) Rules or under the
E   Temporary Service Rules. Admittedly, the respondent had been working
    as a temporary Government servant before he was kept under suspen-
    sion. The termination order indicated the factum that he, by then, was
    under suspension. It is only a way of describing him as being under
    suspension when the order came to be passed but that does not con-
    stitute any stigma. Mere acquittal of Government employee does not
F   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 directing reinstatement or appropriate action should be
    taken as per law, if otherwise available. Since the respondent is only a
G   temporary Government servant, the power being available under Rule
    5(1) of the Rules, it is always open to the competent authority to invoke
    the said power and terminate the services of the emplcyee instead of
    conducting the enquiry or to continue in service a Government servant
    accused of defalcation of public money. Reinstatement would be a
H   charter for him to indulge with impunity in misappropriation of public
'
'-
                            u.o.r. V. B.L. SIDHANA                      367

     money.                                                                    A
          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     B
     Bench stands set aside and that of the learned single Judge stands con-
     firmed. The writ petition stands dismissed. No costs.

     R.P.                                                   Appeal allowed.