M.S. Liberhan, J. - (1.) THE Petitioner to this writ petition has sought a mandamus directing the Respondents to reinstate the Petitioner in service since he stands acquitted in a criminal case on account of the pendency of which he was suspended.
(2.) THE above said relief's was claimed in view of the following facts: The Petitioner was working with the Respondents as a Clerk when First Information Report No. 336 dated November 24, 1978 was lodged against him alleging that he was a conspirator for committing the offences under Sections 409/420/465/468/471/381/120 -B of the Indian Penal Code. The Petitioner was suspended in the year 1978 He was tried by the Judicial Magistrate 1st Class, Jalandhar who acquitted him vide order dated July 1(sic) 1983. The Petitioner was not reinstated in spite of the representations having been made by him since 1983 after the acquittal order. The Respondents, controverting the claim of the Petitioner, has averred that since an appeal against the order of acquittal was pending in the High Court; the Petitioner could not be reinstated. It was averred that since the investigation and enquiry against the Petitioner have not been finalised as yet, therefore, he has no right to be reinstated. The matter is still sub judice as the appeal is pending The Respondents took preliminary objections to the effect that since the Petitioner has an alternative remedy under the Industrial Disputes Act, the writ petition is not maintainable and, secondly, the Petitioner is governed by the First Bipartite Settlement which governs the service conditions of the Petitioner. It is provided under the said agreement that when, in the opinion of the management, an employee has committed an offence and unless he be otherwise prosecuted, the bank may take steps to prosecute him or get him prosecuted In such a case, the bank may suspend him It is further provided that if he is convicted in such prosecution the bank may dismiss him from service with effect from the date of conviction, or may give any lesser punishment as mentioned in the agreement. It is further provided that in case of his acquittal, it shall be open to the management to proceed against him under provisions set out in clauses 19.11 and 19.12 of the Settlement relating to discharge. In the event of the management deciding after enquiry not to permit him to continue in service, his services are liable to be terminated with three months' pay and allowances in lieu of notice. It is provided in the said agreement that he shall be deemed to be on duty during the period of suspension and shall be entitled to the full pay and allowances minus such subsistence allowance as he has drawn along with all other privileges for the period of suspension provided that if he be acquitted by being given the benefit of doubt he may be paid such portion of such pay and allowances as the management may deem proper and the period of his absence shall not be treated as a period spent on duty unless the management so direct. There is no dispute that the management had not taken any steps to proceed under Clauses 19.11 and 19.12 nor any decision was taken after enquiry not to continue him in service. There is no dispute that the Petitioner has been acquitted. No benefit of doubt has been given while acquitting the Petitioner.
(3.) THE counsel for the Petitioner states that in view of the admitted facts, the pendency of the appeal against acquittal cannot be regarded as a continuation of the trial nor it can be said that the offence is under investigation or any enquiries are pending against the Petitioner. The Respondents have got only a right to keep him suspended during the investigation or when enquiries are pending against him or during the trial before the competent authority. The counsel for the Petitioner resies on Surinder Kumar v. State of Himachal Pradesh, 1985(3)S.L.R 254, to support his submissions, wherein it has been observed: The order of acquittal indubitably under challenge in the High Court. The preferment of acquittal appeals cannot, however, be regarded as the continuance of the trial. The trials has concluded with the judgment of acquittal (See State v. B.C. Dwiwedi,, 1983(2) 27 GLR 1315 (sic). The initial presumption of innocence must, therefore, be regarded as having been doubly reinforced by orders of acquittal passed in favour of the Petitioners. Under such circumstances; the continued operation of the order of suspension as from the date of acquittal cannot be regarded as reasonable, fair and just. Merely because the Petitioner was, at one point of time, detained in custody for a period exceeding forty eight hours, he cannot be kept under suspension perpetually, especially when the allegations on the basis of which he was detained and which ultimately became the subject matters of two trials before the criminal Court; are found by a competent jurisdiction to have not been established beyond reasonable doubt.;