- (1.) The petitioner, a Junior Engineer with Rajasthan State Electricity Board (predecessor of the respondent company the Rajasthan Rajya Vidhyut Prasaran Nigam Ltd., Vidhyut Bhawan, Jaipur) by order dated 22.7.1986 was placed under suspension as a consequent to initiation of investigation for a criminal charge. After filing police report and framing of charge he was subjected to a trial that culminated into his conviction for the offences punishable under Prevention of Corruption Act, 1988. The disciplinary authority by order dated 5.8.1992 dismissed him from service looking to the conduct that led to his conviction. The conviction recorded by the trial court vide judgment dated 19.6.1992 came to be set aside and the petitioner was acquitted from the charges levelled on acceptance of the appeal (SBCriminal Appeal No.254/1992) by this Court on 27.11.2008. On acquittal, the petitioner claimed for reinstatement in service but of no consequence, thus, this petition for writ was preferred to have a direction for reinstatement in service with all consequential benefits including extension of an opportunity to opt for pension introduced by the Rajasthan State Electricity Board in the year 1989. During pendency of the writ petition, the Secretary (Administration) of the Rajasthan Rajya Vidhyut Prasaran Nigam Ltd. vide order dated 28.12.2010 set aside the order dated 5.8.1992, reinstated the petitioner in service but denied payment of back wages and also for any amount beyond the subsistence allowance already paid for the period of suspension. The contents of the order dated 28.12.2010 are as under:- "Pursuant to the judgment dated 27.11.2008 passed in SB Criminal Appeal No.254/1992 by the Hon'ble Raj. High Court, Jodhpur, the Chairman & Managing Director, RVPN, in consultation with the Director (Fln.), RVPN, Jaipur, has decided that - (1)The dismissal of Shri Sohan Lal Rajpurohit, JEn, RSEB, Siwana, ordered vide order No.RSEB/Enq./C-4059/D.1667 dated 5.8.1992 is setaside and he shall be deemed to have been reinstated in service w.e.f. 05.08.1992. (2)Since Shri Sohan Lal Rajpurohit, has been acquitted from the charges leveled against him by allowing the benefit of doubt by the Hon'ble Raj. High Court, his acquittal cannot be treated as fully exoneration in terms of clause 2 of Reg.41 of ESR-1964, as such - (i)Shri Rajpurohit would not be entitled for the pay and allowances during the suspension period i.e. w.e.f. 22.7.1986 to 4.8.1992 except the subsistence allowance already paid to him. (ii)His period of suspension shall be treated as the period spent on duty only for the purpose of continuity of service. (3) Shri Rajpurohit, shall be deemed to have been retired on 31.12.2007. (4)The pay & allowances for the period 5.8.1992 to 31.12.2007 shall not be paid to Shri Sohan Lal Rajpurohit, JEn in cash as he had not performed any kind of duties during this period. However, notional pay fixations shall be allowed to him for this period."
(2.) The petition for writ then was suitably amended to challenge the order dated 28.12.2010 to the extent it denies payment of wages beyond the subsistence allowance during the period of suspension and the complete back wages from the date of dismissal to 31.12.2007, the day on which the petitioner would have been retired from service, if he would have not been dismissed.
(3.) The submission of counsel for the petitioner is that once the petitioner has been acquitted from the criminal charges and he has been reinstated in service, then there is no justification for denying complete back wages including the wages in addition to subsistence allowance. It is asserted that the respondents at their own decided to dismiss the petitioner without waiting for final out come of the appeal against the judgment of the trial court, thus, it is not open for them to bank upon the doctrine of "no work no pay". The contention advanced is supported by a Full Bench judgment of this Court in Union of India v. Ramswarup (DBCivil Special Appeal No.44/1983) decided on 4.3.1987. In the case aforesaid the Full Bench while examining the referred question that "whether the dismissal from service on the ground of conviction of a government servant during the pendency of his appeal against the conviction and sentence before this Court is valid even though till then the conviction of the respondent had not become final?", held as under:- "The provisions in clause (a) of the second proviso to Article 311(2) of the Constitution have been incorporated in public interest and for public good like the provisions contained in Article 31(2) of the Constitution of India. As held by the courts the reason is that a government servant during the criminal trial gets sufficient opportunity to defend himself. Even in case of departmental enquiry under Article 311(2) of the Constitution after a government servant is punished and is dismissed, removed or reduced in rank he has a right to file an appeal but for that matter the order of dismissal or removal or reduction in rank is xxxxx xxxxx in abeyance by mere filing of an appeal. But stay xxxxx xxxxx by the appellate court if the theory of merger in the appellate order is attracted which is bound to be attracted as and when the appeal is disposed of, thereby mere filing of the departmental appeal the order may become inoperative, which it does not become. Even in cases where by having recourse to clause (a) of the second proviso, where the same can be applied, a penalty mentioned therein is inflicted, the employee has a right of departmental appeal during the pendency of that appeal the conviction by the trial court may be set aside, then the conviction will be ineffective, nonest from the date it was recorded and the appeal will have to be accepted. Even otherwise on the quantum of penalty the appellate court may take a lenient view than one taken by the appointing authority. To our mind the true construction of clause (a) is that the conviction of a person by a criminal court comes into operation no sooner it is made and it will be open to the government to pass an order of dismissal or removal or reduction in rank immediately after the criminal court records conviction and it is for the appointing authority to decide as to whether the conduct which has led to conviction on a criminal charge should be considered during the pendency of appeal against conviction or not. If the appointing authority decides that the conduct which has led to the conviction of a government servant on a criminal charge should be taken into consideration and the government servant should be dismissed or removed or reduced in rank, it will always run the risk of conviction being later set aside in appeal or revision and no sooner the conviction is set aside, it will take effect from the date it was recorded and is wiped of and the government servant will be entitled to be reinstated with full back wages. If we read clause (a) of the second proviso to Article 311(2) of the Constitution, as it is and as we should read it, we are unable to construe 'conviction' and to our mind the conviction will mean and include the conviction by the trial court and clause (a) of second proviso to Article 311(2) of the Constitution, will be attracted even though an appeal against conviction is pending in a higher court, and the proceedings have not been disposed of.";