WA/1523/2005 of Andhra Bank Farmers Service Coop. Society Ltd., r Vs Challa Rathaiah S/o Kabaiah on 28 December 2005

THE HON'BLE MR JUSTICE J.CHELAMESWAR

And THE HON'BLE MR JUSTICE P. LAKSHMANA REDDY

WRIT APPEAL No : 1523 of 2005

DATED: 28.12.2005

BETWEEN:

Andhra Bank Farmers’ Service Coop., Society Ltd.,Rep., by its Managing Director,Dhulipalla, Sattenapalli Mandal,Guntur Distirct.… Appellant

AND

Challa Rathaiah

… Respondent

THE HON'BLE MR JUSTICE J.CHELAMESWAR

And

THE HON'BLE MR JUSTICE P. LAKSHMANA REDDY

WRIT APPEAL No.1523 of 2005

ORDER:- (PER THE HONOURABLE JC,J)

The respondent in WP.No.4523 of 2000 is the appellant herein. The solerespondent herein is the petitioner in the abovementioned writ petition. Therespondent is an employee of the appellant, working as Accountant. A criminal casewas registered against the respondent under various sections including Section 302IPC. The further details may not be necessary for the present case. Pursuant to theregistration of the criminal case, the appellant herein kept the respondent undersuspension on 14.06.1993. The criminal case ended in acquittal by a judgment,dated 02.03.1998, of the competent criminal Court. Consequent upon the acquittal,the respondent was reinstated into service on 31.03.1998. On reinstatement, therespondent claimed wages and all benefits attached to his employment for theperiod, which he was under suspension. The appellant herein by an order, dated12.11.1998, rejected the claim of the respondent. Challenging the said decision, therespondent approached this Court by way of the abovementioned writ petition,which was allowed by the order under appeal. Hence, the present writ appeal.

It is stated by the learned counsel for the appellant that the relevant rules of theappellant’s organization create a legal fiction that an employee who suffers custodyunder a criminal charge for a period exceeding (48) forty eight hours, is deemed tobe under suspension. Therefore, the employer had no option, but to continue therespondent under suspension during the pendency of the trial of the criminal case.The learned counsel, therefore argued that as the employee did not render anyservice during the period of suspension, the appellant is relieved of his obligation tomake any payment for the said period as the employee did not render any service tothe appellant.

Admittedly, the respondent was arrested on 06.05.1993 by the police and he wasunder custody till 19.05.1993, on which date, it appears, he was enlarged on bail bythe competent Court. For the said period, undoubtedly, by virtue of the operation oflaw even if the employer-appellant wished to continue the respondent in service, itcould not have continued him because, by the process approved by the law, therespondent was prevented from discharging his contractual obligations of theemployment with the employer-appellant. But, from 19.05.1993 when the respondentwas enlarged on bail, it was the option of the employer whether to continue theemployee-respondent under suspension or not. In other words, there was no legal compulsion obligating the appellant-employer to continue the employee undersuspension say a self-imposed rule by which the appellant-employer thought it fit orwise to keep the employee under suspension though physically the employee wasavailable and willing to serve the appellant.

The learned counsel for the appellant, however, relied on a judgment of SupremeCourt reported in BALDEV SINGH v. UNION OF INDIA & OTHERS. It was a casewhere the appellant before the Supreme Court was arrested on 30.03.1987 on acharge under Section 302 IPC, among other charges. He was convicted by the TrialCourt, but, on an appeal the conviction was reversed. Eventually, he was releasedfrom jail on 04.04.1992. The Supreme Court, as a matter of fact, recorded that fromthe date of the arrest i.e., on 30.03.1987 till the reversal of the conviction in theappeal, the appellant was in custody, either pre-trial or imprisonment pursuant to theconviction.

In the abovementioned factual background, when the appellant sought to recoverthe salary and other monetary benefits for the period he spent in the custody from hisemployer, the Supreme Court declared that the appellant was not entitled for therelief sought for on the ground that he did not render service for the said period.

We understood from the above decision that the principle underlying such aconclusion is that even if the employer wishes to continue the employee, neither theemployer nor the employee could have continued the relationship by virtue of theoperation of law as employee was kept in custody.

We, therefore, are of the opinion that the decision has no application to the facts ofthe present case insofar as it pertains to the period in dispute except for the limitedperiod commencing from 06.05.1993 ending with 19.05.1993 during which periodthe respondent herein was in custody and prevented from rendering service forreasons beyond the control of either employee or the employer.

dismissed at the admission stage, except to the limited extent indicated above.

After the order is dictated, the learned counsel for the appellant requested that hemay be permitted to make payment as demanded by the respondent, within a periodof eight weeks from today. Prayer granted.

_____________________

J.CHELAMESWAR, J

___________________________

P. LAKSHMANA REDDY, J

Date: 28.12.2005ES