- (1.) The challenge in this appeal is as to the order of the High Court directing to make fresh enquiry and denying back wages to the appellant.
(2.) By this common judgment, we propose to dispose of these two appeals, as they arise out of common judgment. Civil Appeal No. 5217 of 2002 is filed by the employee and cross-appeal being Civil Appeal No. 5218 of 2002 is filed by the management.
(3.) Briefly stated the facts are as follows: The appellant joined his services in the respondent Bank as Messenger on 24.1.1977. He was confirmed in the said post on 30.11.1977. On 31.3.1987, a criminal case was instituted against him u/s. 381 of the Indian Penal Code on a complaint filed by the cashier of the Bank alleging that the appellant had stolen a bundle of notes of the denomination of Rs. 100.00 amounting to Rs. 10,000.00 from the cash counter. By order dated 18.04.1987 the appellant was placed under suspension in contemplation of a departmental enquiry. As it would appear from the various representations, the appellant requested the authority that since criminal proceedings were pending against him, departmental enquiry may be postponed till the disposal of the criminal case. Taking this contention, the appellant did not participate in the departmental enquiry, despite repeated reminders to do so, resulting in passing of an order of ex parte enquiry. On conclusion of enquiry, the enquiry officer found him guilty of the charge. Consequently, he was dismissed from the service on 6.10.1987. He carried an unsuccessful appeal before the Deputy Commissioner of Labour, Trichy, Tamil Nadu under the Shops and Establishments Act. Aggrieved thereby the appellant filed a writ petition before the learned Single Judge which favoured him by setting aside the order of dismissal. Thereafter, the respondent Bank filed a writ appeal before the High Court. The Division Bench of the High Court after hearing the parties dismissed the writ appeal with the following observation: "Therefore, while we agree with the order of the learned Single Judge in giving an opportunity to the first respondent herein to face the departmental enquiry afresh, we direct that the first respondent herein will not be entitled to get the benefit of back wages for the period out of employment including continuity of service for retirement benefit at later stage in the event of succeeding in the departmental enquiry initiated against him.";