Holding

The termination order was set aside as it was based on a conviction later nullified, and the widow is entitled only to pension, not back wages.

Summary

The appellant, a widow, sought retirement benefits for her deceased husband who had been an Assistant with the Bihar School Examination Board. He was convicted in 1989 under several IPC sections for tampering with examination marks and was dismissed from service in 1992 on the basis of that conviction. While his criminal appeal was pending, he died; the Sessions Court later acquitted him, setting aside the conviction. The widow’s representations for pension and back wages were rejected, and the High Court dismissed her writ petition, citing delay and acquiescence. The Supreme Court held that the dismissal was invalid because it was predicated on a conviction later nullified, and that the widow is entitled only to a pension, not arrears of salary. Consequently, the appeal was allowed and the termination order set aside.

Issues considered

Whether a service termination order based on a criminal conviction can be challenged after the conviction is set aside, despite the passage of time.
Whether the doctrine of laches or acquiescence bars the widow’s claim for retirement benefits.
Whether the widow is entitled to pension only or also to back wages and other monetary benefits.
Whether the employer must set aside the dismissal order in view of the acquittal.

Legislation cited

Bihar Service Code
Constitution of Indias. Article 136, s. Article 226, s. Article 227
Indian Penal Code, 1860s. 120-B, s. 420, s. 458, s. 467, s. 471

Subjects

service lawtermination of servicecriminal convictionacquittalpensionback wageslachesdelaywidow's rightsIndian Penal Code

Judgment

[2009J 9 S.C.R. 367

BASANTI PRASAP A
v.
THE CHAIRMAN, BIHAR SCHOOL EXAMINATION BOARD
AND OTHERS
(Civil appeal No. 3564 of 2009)
B
MAY 14, 2009
:"-
[TARUN CHAITERJEE AND H.L. DAITU, JJ.]

Service law - Retiral benefits - Claim of - Conviction
order against employee under the provisions of Penal Code c
- Termination of service during pendency of appeal -
Thereafter, death of employee - Subsequently order of
acquittal passed - Representation by employee's wife
seeking retiral benefits, rejection of - Writ petition seeking
monetary and service benefits as also interim application D
seeking quashing of termination order - Dismissal of - LPA
also dismissed - On appeal, held: Order of High Court not
justified - Employee was dismissed on basis of conviction
order - No departmental enquiry was held against delinquent
employee - There was no negligence or /aches or E
acquiescence on part of petitioner- Employee could not have
questioned the dismissal till he was acquitted - Conviction
order has been set aside by s(.Jperior forum and has become
final - Writ court should have exercised its extraordinary
jurisdiction by directing the employer to redress the grievance F
of petitioner - Thus, matter should be remanded back -
However, litigation Is pending for last one decade and
petitioner is a poor widow - Dismissal order is set aside without
back wages - Petitioner is only entitled to pension.

G.M. Tank v State of Gujarat (2006) 5 SCC 446, Relied G
on.

Moon Mills Ltd. vs. M. R. Mehar, President, Industrial
Court AIR 1967 SC 1450; Maharashtra State Road Transport
367 H
368 SUPREME COURT REPORTS [2009] 9 S.C.R.

A Corporation vs. Ba/want Regular Motor Service (1969) 1 SCR
~
808; State of Madhya Pradesh vs. Nandlal Jaiswal (1986) 4
SCC 566 and Shri Vallabh Glass Works Ltd. vs. Union of

B
India (1984) 3 SCC 362, referred to.

Lindsay Petroleum Co. v. Prosper Armstrong Hurd
Abram Farewall and John Kemp (1874) 5 PC 221, referred
• I

to. .\<:

Case Law Reference:

c AIR 1967 SC 1450 Referred to. Para 15

(1969) 1 SCR 808 ~eferred to. Para 15

(1874) 5 PC 221 Referred to. Para 15 ....
(1986) 4 sec 566 Referred to. Para 16
D
(1984) 3 sec 362 Referred to. Para 17

(2006) 5 sec 446 Relied on. Para 22

CIVIL APPELLATE JURISDICTION : Civil Appeal No.
E 3564 of 2009.

From the Judgment & Order dated 12.07.2007 of the High
Court of Judicature at Patna in LP.A. No. 521 of 2007. ~

Ranjan Mukherjee for the Appellants. J-1'

F
Gopal Singh, Manish Kumar and Rohan Cama for the
Respondents.

The order of the Court was delivered by

G 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
H
BASANTI PRASAD v. CHAIRMAN, BIHAR SCHOOL 369
EXAMINATION BOARD AND ORS.
~<
dated 12.7.2007 of the High Court of Judicature at Patna in A
='-. LP.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
8
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
.t' employees of the Board for tempering with the Marks Sheets c
---f 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 D
husband and other employees of the Board under Section 420,
467, 471, 458 and 120-B of the l.P .C. before Judicial
Magistrate, Patna. After the trial, the Judicial Magistrate had
="I
convicted the appellant's husband and other employees of the
Board for the offences alleged in the charge sheet and
E
sentenced them to undergo rigorous imprisonment for two
years for each of the offences under Section 467, 468, 471 and
120-B of the 1.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 F
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 G
dated 4th August, 1992, terminated the services of the
appellant's husband, since he had been convicted by the
<.4/
learned Chief Judicial Magistrate, Patna; tor offences under
l.P.C. in Crime Case No. 18/7/TR No. 121/1998 of Police
",... Station Kotwali, Patna.
H
370 SUPREME COURT REPORTS (2009] 9 S.C.R.

'f ,_
....
A 8. The appellant's husband expired during the pendency
gf the appeal pefore the S?ssion$ Court, Patna. With the >-
permission of the CQl,lrt, th~ appellant herein had contin1.,1ed to
~rC?s.~9ute the criminal appeal. The learneci Sessions J1.,1dge,
Patna, has allowed th~ 13p,pe13.I§ i:md thereby has acquitted the
appellant's husbanq and gthers. 'I'
8
9. After disposal of the criminal appeal, the appellant had y

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
c 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 1
~
from service and, therefore, she is entitled for all the retiral
benefits of her late husband. Since her representations were
D rejected by the Board (Committee}, the appellant was 'f

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
E 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 _,,.
F 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
G
question the order of termination of services passed by the
Board (Committee.), According to the learned Judge, the delay
and !aches 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 condoned. It is also observed in the order, since the ...
....,
H
-
BASANTI PRASAD v. CHAIRMAN, BIHAR SCHOOL 371
EXAMINATION BOARD AND ORS.
appellant's husband was terminated from service, in view of the A
order of conviction passedfby a criminal court and since that
order is neither modified nor annulled by any superior forum,
the appellant is not entitled to the relief sought for in the writ
petition. The Letters Patent Appeal filed by the appellant is
rejected by the High Court on the ground, that, the appellant's B
.,. husband had not questioned the order of termination passed
by the Board (Committee), while he was alive and, therefore,
t'
the appellant is not entitled for any relief, since according to
them, it appears to be a case of acquiescence. The court has
also obse1ved, that, nothing prevented the appellant's husband c
while he was alive to challenge the order of dismissal passed
by the Board before the competent forum. The appellant is
....., before us in this appeal, being aggrieved by the aforesaid
finding and the conclusion reached by the court in L.P.A. No.
521 of 2007 dated 12.7.2007.
"" D
11. The learned counsel for the appellant would contend,
that, the deceased employee while he was in service, did not
challenge the order of dismissal passed by th,e Board
(Committee), since the dismissal order was the direct result of
his conviction by the learned Magistrate for the offences E
punishable under the orovisions of Indian Penal Code.
Assuming even he had questioned it before any superior forum,
it would not have yielded any better result, since Bihar Service
Code authorizes the employer to terminate the services of
government employee, if he is convicted for offences punishable F
under Indian Penal Code by a competent criminal court, and
since the result of the appeal was 'obvious, the appellant's
husband had not questioned the order, terminating his services
by the Board. Further, the learned counsel would submit, even
if he had filed Writ Petition under Article 226 and 227 of the G
Constitution, he would not have been successful, since the Bihar
Service Code authorizes the employer to severe the
relationship of employer and employee, if for any reason, an
employee is convicted for offences under the Indian Penal
Code. It is also submitted, that the delinquent employee could H
372 SUPREME COURT REPORTS [2009] 9 S.C.R.
~
..
A not have kept the petition alive before the High Court, on the
ground, that, his criminal appeal is pending before the Sessions
Court against the order of conviction passed by Judicial
Magistrate. Therefore, it is pointed out by the learned counsel,
that, the High Court has committed an error in rejecting the relief
B sought by the appellant only on the ground, that, in the petition
filed in the year 2005, the appellant could not have called in
question the order of dismissal passed by the Board
(Committee) against her husband in the year 1992. It is further
argued by the learned counsel for the appellant that during the
c pendency of the criminal appeal filed before the Sessions Court
against the order of conviction passed by the learned
Magistrate, the appellant's husband could not have sought for
any relief from any other forum, since the order of dismissal was
staring at the appellant and the cause of action for the appellant
did arise only after disposal of the criminal appeal, wherein the
D 'f
Sessio.ns Court has acquitted the appellant's husband and
other employees of the Board.

12. The learned counsel for the respondent in the course
of his argument would submit; that, since the deceased •
E employee did not challenge his order of dismissal from service '
during his life time, the High Court was justified in rejecting the
appeal on the ground of acquiescence, estoppel and delay. It
is further contended, that, since the appellant's husband has
expired, the Board (Committee) cannot initiate any disciplinary .,
I

F proceedings in which charges alleged against the appellant's
husband could have been proved and established. It is further
submitted by the learned counsel for the respondent, that, the
High Court was justified in rejecting the application filed by the
appellant for amendment of the prayers made in the Writ
G Petition, by making an application seeking additional relief in
the year 2007. Lastly, it is submitted merely because, the .
appellant's husband was acquitted of all the criminal charges·
by the Sessions Court, it does not ipso facto would entitle the
appellant for all the reliefs claimed in the writ petition and, at
any rate, the appellant is not entitled to arrears of salary from
H
• BASANTI PRASAD v. CHAIRMAN, BIHAR SCHOOL 373

- ~·
EXAMINATION BOARD AND ORS.
the date of termination till the employee is deemed to have A
'-:
retired from service on attaining the age of superannuation. In
aid of submission, the learned counsel brings to our notice the
observations made by this Court in the case of G.M. Tank vs.

..
State of Gujarat, (2006) 5 SCC 446.
8
13. Before the High Court, the principal question for
consideration was whether the appellant should be non-suited
only on the ground that she had belatedly questioned the order
- of dismissal passed against her late husband in the year 1992
in a petition filed in the year 2005 and the other incidental issue
c
was, whether the appellant is entitled for monetary and service

- benefits in view of the order passed by the Sessions Court
acquitting .the appellant's husband from the offences alleged
against him under Indian Penal Code by setting aside the order
passed by the Judicial Magistrate who had convicted him for
those offences after a full fledge trial. D

14. In the normal course, we would not have taken
exception to the order passed by the High Court. They are
justified in saying that a delinquent employee should not be
permitted to revive the stale claim and the High Court in E
exercise of its discretion would not ordinarily assist the tardy
t and indolent person. This is the traditional view and is well
supported by plethora of decisions of this Court. This Court
.._
also has taken the view, that, there is no inviolable rule, that,
whenever there is delay the. court must refuse to entertain. a F
petition. This Court has stated that the writ court in exercise of
its extraordinary jurisdiction under Article 226 of the Constitution
may condone the delay in filing the petition, if the delay is
satisfactorily explained

~ 15. Reference may be made at this stage to the decisions G
of this court in the case of Moon Mills Ltd. vs. M.R. Mehar,
President, Industrial Court, AIR 1967 SC 1450 and
Maharashtra State Road Transport Corporation vs. Ba/want
Regular Motor Service, (1969) 1 SCR 808, wherein this court
has approved the view expressed by the Privy Council in the H
•
I
-·
374 SUPREME COURT REPORTS [2009] 9 S.C.R.
·+

A case of Lindsay Petroleum Co. vs. Prosper Armstrong Hurd
Abram Farewa// and John Kemp (1874) 5 PC 221. The court
had observed :-

"Now the doctrine of laches in Courts of Equity is not an
arbitrary or a technical doctrine. Where it would be
B
practically unjust to give a remedy, either because the party ,,
has, by his conduct, done that which might fairly be
·regarded as equivalent to a waiver of it, or where by his
conduct and neglect he has, though perhaps not waiving
that remedy, yet put the other party in a situation in which
c it would not be reasonable to place him if the remedy were
af.terwards to be asserted, in either of these cases, lapse
of time and delay are most material. But in every case, if
an argument against relief, which otherwise would be just,
-
is founded upon mere delay, that delay of course not '!
D amounting to a bar by any statute of limitations, the validity
of that defence must be tried upon principles substantially
equitable. Two circumstances, always important in such
cases, are, the length of the delay and the nature of the
acts done during the interval, which might affect either party
E and cause a balance of justice or injustice in taking the one
course or the other, so far as relates to the remedy."
~

16. In State of Madhya Pradesh Vs. Nandlal Jaiswal .;.
(1986) 4 sec 566, it was held as under:-
F 'There can be doubt that the petitioners were guilty of gross
delay in filing the writ petitions with the result that by the
time tne writ petitions came to be filed. If there is inordinate
delay on the part of the petitioner in filing a writ petition
and such delay js not satisfactorily explained, the High
G Court may decline to intervene and qrant relief in the t

exercise of its writ jurisdiction. The evolution of this rule of
laches or delay is premised upon a number of factors. Of
Course, this ·rule of laches or delay is not a rigid rule which
can be cast in a strait jacket formula, for there may be
H cases where despite delay and creation of third party rights
~
BASANTI PRASAD v. CHAIRMAN, BIHAR SCHOOL 375
EXAMINATION BOARD AND ORS.
the High Court may still in the exercise of its discretion A

-
r,.,
1
l

'
interfere and grant relief to the petitioner. But, such cases
where the demand of justice is so compelling that the High
Court would be inclined to interfere in spite of delay or
creation of third party rights would by their very nature be
"
few and far between. Ultimately it would be a matter within B
the discretion of the court; ex hypothesi every discretion
must be exercised fairly and justly so as to promote justice
and not to defeat it. n

17. In Shri Vallabh GlassWorks Ltd. Vs. Union of India C
(1984) 3 sec 362, it was observed:

"While there are different periods of limitation prescribed
for the institution of different kinds of suits by the Limitation
Act, 1963, there is no such period prescribed by law in
respect of petitions filed under Article 226 of the D
Constitution. Whether relief should be granted to a
petitioner under Article 226 of the Constitution where the
cause of action had arisen in the remote past is a matter
of sound judicial discretion governed by the doctrine of
!aches. Where a petitioner who could have availed of the E
alternative remedy by way of suit approaches the High
Court under Article 226 of the Constitution, it is appropriate
ordinarily to construe any unexplained delay in the filing of
the writ petition after the expiry of the period of limitation
prescribed for filing a suit as unreasonable. This rule, F
however, cannot be a rigid formula. There may be cases
where even a delay of a shorter period may be considered
to be sufficient to refuse relief in a petition under Article
226 of the Constitution. There may also be cases where
there may be circumstances which may persuade the court G
to grant relief even though the petition may have been filed
beyond the period of limitation prescribed for a suit. Each
case has to be judged on its own facts and circumstances
touching the conduct of the parties, the change in situation,
the prejudice which is likely to be caused to the opposite
H
376 SUPREME COURT REPORTS [2009) 9 S.C.R.
)--

A party or to the general public etc."

18. We do not think it necessary to burden this judgment
fi'
with reference to various decisions of this Court, where it has ~
been emphasized time and again, that, where there is
~
inordinate and unexplained delay and third party rights are t:::::-
B ~
created in the intervening period, the High Court would decline
to interfere. However, if the delay is properly explained, and if ,,.
the third party rights is not going to be effected, the High Court
may entertain the petition and consider the case of the
ag.grieved person on merits.
c
19. Now reverting back to the facts of this case, The \.-
services of the appellant's husband was terminated only on the
ground, that he was convicted by a Judicial Magistrate for
certain offences under the provisions of Indian Penal Code. It
D is not a case where the delinquent employee was dismissed •
from service on the ground that he was charge sheeted by the
, police for certain offences under Indian Penal Code after
holding a departmental enquiry. In the later circumstances, the ,._I
delinquent employee could not have been heard to say that he
~
E did not question the order within a reasonable time, since the
order of conviction passed by the Judicial Magistrate has
nothing to do with the order passed by disciplinary authority.
As we have already noticed, the dismissal was in view of the +
order of conviction passed by the Magistrate, till that order is
F set aside by a superior forum, the appellant's husband or the \
appellant could not have questioned the same till he was
acquitted by the Sessions Court. In view of these peculiar \
circumstances, in our view, the High Court was not justified in
rejecting the prayer of the appellant primarily on the ground of
I-
delay and laches on the part of the appellant in questioning the '
G
order of termination passed on 4.8.1992 in a petition filed in
the year 2005. In the present case, we are of the opinion that
there is no such negligence or laches or acquiescence on the
part of the appellant as may disentitle her for grant of a writ.
Having said so, the matter requires to be remanded back to
H
BASANTI PRASAD v. CHAIRMAN, BIHAR SCHOOL 377
EXAMINATION BOARD AND ORS.

'"' the High Court for taking a decision on the merits of the case. A
But taking into consideration the pendency of the litigation
between the parties from last one decade and taking also into
consideration the plight of the poor widow who is fighting the
litigation before various forums with limited resources, we
desist from remanding the matter and we intend to decide the B
matter on merits here itself in order to give quietus to this
'!' litigation.

20. What relief the appellant is entitled to is the main issue
that falls for consideration.
c
21. The facts are not in dispute. The services of the
appellant's husband was terminated only on the ground that he
was convicted by a Judicial Magistrate for the offences under
Indian Penal Code. That only means, no independent
departmental enquiry was held against the delinquent D
.;,
employee. In the appeal filed before the Sessions Court against
the order of conviction, the appellant has succeeded. Since, the
punishment imposed was based on an order of conviction and
since the same is set aside by an order passed by a superior
forum and that order having become final for various reasons, E
including the death of the appellant's husband, as natural
corollary, the request of the appellant requires to be redressed
+ by the employer and since that was not done, a writ court ought
to have exercised its extraordinary jurisdiction by commanding
the respondents to redress the grievance of the appellant
F
without resorting to a hypertechnical approach. In view of the
above, the order passed by the respondents terminating the
services of the appellant requires to be set aside and we do
so.

22. It is argued by the learned counse: for the respondent G
that if the delay is condoned and relief is granted to the
appellant, the respondent had to bear the brunt of paying huge
arrears of salarY and other monetary benefits and, secondly,
direction to pay arrears of wages is not automatic and it
depends on several factors. The learned counsel has drawn our H
378 SUPREME COURT REPORTS [2009] 9 S.C.R:

A attention to the observation made by this court in the case of
G.M. Tan,k vs. State of Gujarat, wherein this court has stated :-

"32. In the instant case, the appellant joined the
respondent in the year 1953. He was suspended from
service on 8-2-1979 and got subsistenc~ allowance of
B Rs 700 p.m. i.e. 50% of the salary. On 15-10-1982
dismissal order was passed. The appellant had put in 26
years of service with the respondent i.e. from 1953-1979.
,,
The appellant would now superannuate in February 1986.
On the basis of the same charges and the evidence, the
c department passed an order of dismissal on 21-10-1982
whereas the criminal court acquitted him on 30-1-2002.
However, as the criminal court acquitted the appellant on
30-1-2002 and until such acquittal, there was no reason
or ground to hold the dismissal to be erroneous, any relief
D monetarily can be only w.e.f. 30-1-2002. But by then, the ....
appellant had retired; therefore, we deem it proper to set·
aside the order of dismissal without back wages. The
appellant would be entitled to pension."

E 23. The facts in the aforesaid decision is more or less akin
to the facts and circumstances of this case. Therefore, the issue
that we have raised for our consideration need not detain us
for a long. Therefore, we are of the view that the appellant is
not entitled to back wages. The appellant would be entitled to
pension only.
F
24. In the result, we allow this appeal. We set aside the
order passed by the learned Single Judge in CWJC No.14536
of 2005 dated 02.05.2007 as affirmed in LP.A. No. 521 of
2007 dated 12.07.007. However, there shall be no order as to
G costs.
·~
N.J. Appeal allowed.