JHA, CJ. - (1.) THIS special appeal is directed against an order by which, allowing the writ petition of the respondent, the learned Single Judge directed the appellants to treat the period of respondent's absence on account of incarceration in a criminal case on duty and pay him full emoluments including consequential benefits of increments, seniority etc.
(2.) BRIEF facts of the case are that the respondent was appointed in the service of the appellant Hindustan Zinc Ltd. as Helper some time in 1973. On 20. 9. 1984 he was arrested in connection with a criminal case registered at Dabok Police Station under Section 302, 307 etc. of the Indian Penal Code. The trial Court convicted him under section 307 of the code and awarded sentence of 5 years rigorous imprisonment and fine on 23. 8. 1989. On appeal he was acquitted by this Court on 9. 10. 1990. On 26. 103. 1990, the respondent filed application to take him in employment. On 14. 12. 1990 he filed another application and on 24. 12. 1990 order was passed to that effect, and he was re- instated. On 14. 8. 1991, the respondent filed application for payment of arrears of salary etc. Therein he stated that he had never been placed under suspension or served with any kind of notice and hence he was entitled to salary etc. for the intervening period. After giving reminders which went to vain, the respondent filed the writ petition, SBCWP No. 2370/1992, seeking direction upon the respondents i. e. appellants herein to pay arrears of salary from 21. 9. 1984 till the date of his reinstatement. Relying on the standing order, the learned Single Judge upheld the claim of the respondent with direction to the appellants to treat the entire period of absence in connection with the criminal case as on duty and pay him emoluments including consequential benefits as stated at the outset. The particular provision of the standing order mentioned as "standing Order 21 (A) (C)" in the order of the learned Single Judge does not find place in the certified standing orders produced by the counsel for the parties at the time of hearing. The provision relevant to the case appears to be sub-clause (d) of Standing Order 21 (4) However, to appreciate the true import of sub-clause (d), it would be appropriate to quote other parts also of clause 4 of standing order 21, so far as relevant, as under: " 21. Procedure in dealing with cases of misconduct: . . . . . . . . . . . . 4. (a) Where a disciplinary proceedings against a workman is contemplated or is pending or where criminal proceedings against him in respect of any offence are under investigation or trial and the manager is satisfied that it is necessary or desirable to place the workman under suspension, he may be an order in writing suspend him with effect from such date as may be specified in the order. A statement setting out in detail the reasons for such suspensions shall be supplied to the workman within a week from the date of suspension. (b) A workman who is placed under suspensions under Clause (a) shall, during the period of suspension, be paid a subsistence allowance at the following rates namely. (c) If on the conclusion of the enquiry or, as the case may be, of the criminal proceedings, the workman has been found guilty of the charges framed against him and it is considered that the imposition of any of the penalties prescribed in standing order 20a, above would meet the ends of justice, the manager shall pass an order accordingly. Provided that. . . . . . . . . (d) If on the conclusion of the enquiry, or as the case may be, of the criminal proceedings, the workman has been found to be not guilty of any of the charges framed against him, he shall be deemed to have been on duty during the period of suspension and shall be entitled to the same wages as he would have received if he had not been placed under suspension, after deducting the subsistence allowance paid to him for such period. (e ). . . . . . . . . " On a plain reading of the above provisions, it is manifest that Clause (d) of Standing Order 21 (4) can be applied in a case where the workman/employee has been placed under suspension on account of departmental proceeding or criminal proceeding, as the case may be. Clause (a) deals with power of suspension in the work of disciplinary proceeding or criminal proceeding; Clause (b) provides for subsistence allowance; Clause (c) deals with imposition of penalty in the event of the workman being found guilty in the departmental proceeding or the criminal proceeding, as the case may be; Clause (d) envisages and deals with the situation where the workman is found not guilty in the departmental or criminal proceeding, as the case may be, and the manner in which the suspension period is to be dealt with. In the instant case, the respondent admittedly was never placed under suspension and the point for consideration is whether Clause (d) can be applied in his case and he can be treated to be on duty during the suspension and paid emoluments. The learned Single Judge observed that the position of the respondent cannot be worse than a person in respect of whom the employer had exercised the right of suspension. Counsel for the respondent placed reliance on the above observation submitted that notwithstanding that the respondent was never placed under suspension, by virtue of acquittal of the charge in the criminal proceeding, the respondent would be entitled to full emoluments for the intervening period under Clause (d ). The argument is specious but overlooks the fact that where an employee is placed under suspension on account of some misconduct or pendency of criminal proceeding, he is prevented from performing the duties by the employer but where he is taken in custody in connection with a criminal case and put under incarceration, he is prevented from performing the duties pursuant to a lawful judicial order of the Court of law and not any independent order of the employer. Sub-clause (d), in our opinion, postulates a situation where the employee was prevented from performing the duties by the management i. e. the employer, and therefore, where the person has been taken in custody and put under incarceration, the employee cannot claim benefit of the provision thereof.
(3.) IN Ranchhodji Chaturji Thakore vs. Superintendent Engineer, Gujarat Electricity Board, AIR 1997 SC 1802 = (1996) 11 SCC 603, the Supreme Court observed as under: " The only question is : whether he is entitled to back wages? It was his conduct of involving himself in the crime that was taken into account for his not being in service of the respondent. Consequent upon his acquittal, he is entitled to reinstatement for the reason that his service was terminated on the basis of the conviction by operation of proviso to the statutory rules applicable to the situation. The question of back wages would be considered only if the respondents have taken action by way of disciplinary proceedings and the action was found to be unsustainable in law and he was unlawfully prevented from discharging the duties. IN that context, his conduct becomes relevant. Each case requires to be considered in his own backdrops. IN this case, since the petitioner had involved himself in a crime, though he was later acquitted, he had disabled himself from rendering the service on account of conviction and incarceration in jail. Under these circumstances, the petitioner is not entitled to payment of back wages. " (Emphasis by us) Elaborating the point, in Union of India vs. Jaipal Singh, AIR 2004 SC 1005 = (2004) 1 SCC 121, the Supreme Court stated the law as under: " If prosecution which ultimately resulted in acquittal of the person concerned was at the behest or by department itself, perhaps different considerations may arise. On the other hand, if as a citizen the employee or a public servant got involved in a criminal case and if after initial conviction by the trial Court, he gets acquittal on appeal subsequently, the department cannot in any manner be found fault with for having kept him out of service, since the law obliges, a person convicted of an offence to be so kept out and not to be retained in service. . . . . The appellants are well within their rights to deny backwages to the respondent for the period he was not in service. The appellants cannot be made liable to pay for the period for which they could not avail of the services of the respondent. The High Court, in our view, committed a grave error, in allowing backwages also, without adverting to all such relevant aspects and considerations. " (Emphasis by us) Counsel for the appellant brought to our notice the application of the respondent dated 14. 12. 1990 wherein the respondent while re-iterating his request to take him back in employment had specifically stated that he may be treated as absent from duty from 21. 9. 1984 and the period may be treated as dies non. From the record it appears that after his acquittal on 9. 10. 1990, the respondent had made application on 24. 10. 1990 to take him in employment which was 'filed' by the management with an endorsement "no action" on 31. 10. 1990. It is thus, obvious that the appellants were not initially willing to take the respondent back in employment, it is only when he offered to forego the claim for back wages, that he was re-instated. Having secured employment on the condition that he would not claim back wages for the period on the principle of 'dies non', the respondent could not turn around and claim wages for the period of absence. But for that offer, on his own volition, the management might not have re-instated him considering the charge or after re-instatement, initiated departmental proceeding. It is relevant to mention here that the appellant did not earn clean acquittal nor the court disbelieved the prosecution case. The appellant in the facts and circumstances was held to have exercised right of private defence and given benefit of doubt. ;