Hon'ble S.U. Khan, J. - (1.) HEARD learned counsel for the parties.
(2.) THROUGH this writ petition balance of salary for suspension period has been claimed. Petitioner was a constable in Railway Protection Force. He was suspended on 22.10.1994 and thereafter a criminal complaint was filed against him in the court of A.C.J.M (Railway), Gorakhpur under Section-3 of Railway Property(Unlawful Possession) Act which was registered as criminal case no. 6 of 1995. In the criminal case petitioned was acquitted on 10.05.2000. Thereafter, petitioner was reinstated on 20.03.2001. In respect of suspension period an order was passed on 28.03.2003 through which part of the said period was adjusted in leave due and remaining part in leave without pay. Thereafter petitioner retired in the year 2005. After retirement petitioner gave notice on 05.07.2005 and demanded copy of order dated 28.03.2003. On 14.07.2005 petitioner was informed that the copy of the said order had already been sent to him. Thereafter petitioner gave another notice, reply of which was given on 23.03.2006 by Senior Divisional Security Commissioner, Lucknow-respondent no. 3. In the said reply it was mentioned that after notice and considering the reply of the petitioner part of suspension period was converted into leave due. It was further mentioned that as sufficient leave was not available in the account of the petitioner hence the period from 14.06.1996 to 20.03.2001 was converted into leave without pay. Relevant Rules have been annexed as Annexure-C.A. 1 to the counter affidavit i.e. para 1343 and para 1344 of Indian Railway Establishment Code Vol. II (1987 Edition).
(3.) ORDER dated 28.03.2003 has not been annexed alongwith the writ petition. By virtue of aforesaid paragraph 1343 and 1344 of Railway Establishment Code Vol. II, if the acquittal is on merit then full amount is to be paid for the suspension period. Copy of judgment of acquittal is Annexure-1 to the writ petition. The allegation against the petitioner was that he had stolen 35 kg of railway property and was apprehended while carrying that property on cycle. The criminal court acquitted the petitioner granting him benefit of doubt. The court held that the items which were recovered from the petitioner and sealed were not the same as the items produced and opened in the court. The court held that there were diversions in the evidence of different witness as to whether 15 items had been seized from the petitioner or 31 items.;