ASOPA, J. - (1.) BY the instant writ petition, the petitioner has prayed for an appropriate writ, order or direction to the respondents to amend order dated 2-6-1998 (Anx. 3) so far as it relates to not passing any order for treating the period from 29-12-1983 to 14-12-1997 as spent on duty for all purposes and full pay and allowances. The petition has further prayed to allow all consequential benefits of service from 30-11-1979 to 2-6-1998 including pay and allowances, annual grade increment, bonus, liveries along with interest at the rate of 12% per annum from 2-6-1998 to the date of payment as well as to fix his pay in the Revised Pay Scale Rules, 1981, 1986, 1989 and 1996 as also to grant selection scale as per order dated 25-1-1992. Although the petitioner has prayed for pensionary benefits including pension, gratuity, leave encashment but on the date of final arguments i. e. 18-5-2007, counsel for the petitioner has not pressed for the relief of pension.
(2.) THE facts, in brief, of the case, as per the petitioner are that on 30-11-1979, while the petitioner was working as Helper Grade-II was placed under suspension on the ground of criminal charge. After conviction by the criminal court in anti corruption case, under Sec. 22 (4) (a) of the Technical Workers' Service Rules, 1975 (in short the Rules of 1975') services of the petitioner from the post of Helper Grade-I were terminated vide order dated 28-12-1982. On filing S. B. Criminal Appeal No. 35/1983, vide judgment dated 15-12-1997, the conviction was set aside by the High Court and the petitioner was acquitted of charges u/s. 161 IPC and Sec. 5 (1) (d) and Sec. 5 (2) of the Prevention of Corruption Act. Vide order dated 2-6-1998 (Anx. 3), on account of setting aside his conviction and consequent acquittal by the High Court and in compliance with the Board's order dated 3-9-1995, the petitioner was reinstated in service w. e. f. 15-12-1997 i. e. the date of his acquittal. It was further mentioned in order dated 2-6-1998 (Anx. 3) that the period of suspension i. e. from 30-11-1979 to 28-12-1983 (wrongly typed as 28-12-1983, actually it should have been 28-12-1982 as per order of termination) and from 15-12-1997 till his date of joining duty in compliance to the said order shall be treated as period spent on duty for all purposes and full pay and allowances for this period shall be allowed to the petitioner. But in the said order there is no mention with regard to regularization of the period of termination i. e. from 28-12-1982 to 14-12-1997 for which the petitioner submitted representations from time to time as well as legal notice but no heed was paid by the respondents, therefore,the petitioner has filed the present writ petition. Respondents have filed reply to the writ petition and taken objection that alternative remedy under the Industrial Disputes Act, 1947 has not been availed of by the petitioner, therefore, the writ petition is not maintainable. Further, the petitioner might have been gainfully employed elsewhere which could be ascertained by the Labour Court/industrial Court. The respondents have also raised objection that no benefit of fixation in the revised pay scales of 1981, 1986, 1989 and 1996 as well as selection scale can be given to the petitioner as he has remained out of employment for a long period of fourteen years. It has also been stated by the respondents in the reply that back wages and other benefits of the aforesaid intervening period are not admissible to the petitioner in view of the judgment of the Supreme Court in Union of India vs. Jaipal Singh (2004) 1 SCC 121. Submission of counsel for the petitioner is that he has been reinstated in service in compliance with the Board's circular dated 3-9-1975 relating to action to be taken in cases where Board's employees are convicted on a criminal charge by a competent court of law. Para (iii) of the aforesaid circular dated 3-9-1975 also deals with the fact situation of acquittal and entitlement to pay and allowances as per Regulation No. 41 of the Employees' Service Regulations, 1964 (in short `the Regulations' ). But only reinstatement has been made as per the circular dated 3-9-1975 and para (iii) of the same was not complied with which specifically deals with the intervening period from the date of termination to the date of reinstatement as well as full pay and allowances. Counsel for the petitioner has further drawn distinction between the present case and the case cited by the respondents mainly on the ground that in Jaipal (supra) there was no specific provision for dealing with the situation of acquittal and the Supreme Court made distinction between prosecution not connected with the service and the prosecution at the behest of the employer. On this issue, further submission of the counsel is that the present case of Anti Corruption was certainly connected with the service of the petitioner therefore, it cannot be said that the petitioner is not entitled to regularization of the intervening period. Counsel for the petitioner has placed reliance on a judgment of the Punjab and Haryana High Court in Shashi Kumar vs. Uttri Haryana Bijli Vitran Nigam through its Managing Director, Panchkula and another (2005 (1) SLR 659 ). Submission of counsel for the respondents is that the alternative remedy available to the petitioner under the Industrial Disputes Act, 1947 has not been availed of by him; therefore, the writ petition is not maintainable. Further submission of the counsel is that the petitioner is not entitled to regularization of the intervening period from the date of termination to the date of reinstatement in view of judgment of the Supreme Court in Jaipal Singh (supra ). Counsel also submitted that the petitioner remained out of employment for fourteen years and therefore, he is not entitled to fixation of pay in the Revised Pay Scales of 1981, 1986, 1989 and 1996 as well as selection scale. I have gone through record of the writ petition and considered rival submissions of counsel for the parties.
(3.) BEFORE proceeding further, it would be useful to quote circular dated 3-9-1975 which reads as under: " RSEB/osd/c-985/d. 3810 Jaipur, Dt. 3-9-75 CIRCULAr Sub: Action to be taken in cases where Board's employees are convicted on a criminal charge by a competent court of law. The following procedure should be adopted in a case of conviction of a Board's employee by a Court of Law on a criminal charge:- (i ). . . . . (ii ). . . . . (iii) Ifan appeal/revision against the conviction succeeds and Board's employee is acquitted, the order of dismissal, removal or compulsory retirement based on his conviction which no longer stands, becomes liable to be set aside. A copy of the judgment of the appellate Court should be immediately procured and got examined with a view to decide whether despite the acquittal, the facts and circumstances of the case are such as to call for the departmental enquiry against the Board's employee on the basis of the allegation on which he was previously convicted. If it is decided that a departmental enquiry should be held, formal orders should be made: (1) setting aside the order or dismissal, removal or compulsory retirement, and (2) ordering such a departmental enquiry. Such an order should also state that under Regulation No. 9 of the RSEB (CC & A) Regulations 1962, the Board's employee is deemed to be under suspension with effect from the date of the dismissal/removal/compulsory retirement (A Standard Form-II is enclosed ). In case where neither of the aforesaid course is allowed, a formal order should be made setting aside the previous orders of dismissal, removal and compulsory retirement and reinstating him in service (A Standard Form No. III for such an order is enclosed ). The period between the date of dismissal etc. and the date on which he resumes duty should be dealt with under Regulation No. 41 of the Rajasthan State Electricity Board Employees Service Regulations and in doing so he should be deemed to be entitled to full pay and allowances for the period from the date of his acquittal to the date of his reinstatement, such period being counted for duty for all purposes and for the period from the date of dismissal to the date of acquittal, he should not be allowed pay and allowances less than what would have been admissible to him had be remained under suspension. While issuing orders for dismissal, it should be borne in mind that the order is issued by the authority competent to inflict major penalty against that person. Sd/- N. S. Bhandari Dy. Secretary (Enq.)" Regulation 41 of the Regulations read as under: " 41 Re-instatement after suspension, removal or dismissal: When an employee who has been dismissed, removed or suspended is reinstated, the authority competent to order the reinstatement shall consider and make a specified order: 1. (a) Regarding the pay and allowance to be paid to the employee for the period of his absence from duty, and (b) Whether or not the said period shall be treated as a period spent on duty. (c) Whether or not the suspension, removal or dismissal was wholly unjustifiable. 2. Where such competent authority holds that the employee has been fully exonerated or in the case of suspension that it was wholly unjustified, the employee shall be given the full pay and dearness allowance to which he would have been entitled had he not been dismissed, removed or suspended, as the case may be. " 3 . . . . . 4. . . . . 5. . . . . 6. . . . . 7. . . . . Relevant portion of para 8 of the Division Bench judgment of Punjab and Haryana High Court in Shashi Kumar (supra) cited by the petitioner reads as under: " 8. The aforesaid judgment of the Madras High Court. . . observations of Rajamannar, C. J. in Jayaram's case, AIR 1960 Mad 325". Further more a Division Bench of this Court, after examining the relevant rules in the case of Hukam Singh (supra) had held as under:- " It is abundantly. . . . present case. In our this view, we are supported by the judgment of this Court in the case of Maha Singh vs. State of Harayana and another 1993 (8) Services Law Reporter 188. Same view was expressed by this Court in the case of Lehna Singh vs. The State of Haryana and others, 1993 (3) Recent Services Judgments 119: (1993 (6) SLR 320 (Pb. & Hry. ). Keeping in view the aforesaid, we have no hesitation in holding that the impugned order cannot be sustained. In terms of Rule 7. 5 of the Rules, on petitioner's being acquitted, he would be entitled to full salary and allowances for the period of suspension and dismissal. . " We are of the considered opinion that in view of the settled law the petitioner is clearly entitled to be reinstated in service with all consequential benefits. We quash the impugned order dated 27-8-2003 (Annexure P. 4 ). We direct the respondents to reinstate the petitioner into service with full back wages. Mr. Agnihotri has argued that the respondents be given opportunity to now conduct a departmental enquiry. We are of the considered opinion that in view of the categoric findings recorded by the High Court, there would be hardly any justification in permitting further departmental action. We, therefore, decline the request made by the counsel for the respondents. " ;