- (1.) HEARD counsel for the parties.
(2.) THE petitioner is aggrieved by part of the office order dated 04.04.2006, Annexure 3, by which pay fixation order of the petitioner has been issued granting him promotion from Grade S 7 to Grade S 11 but with a condition that no arrears would be payable for such promotion granted during the said period from 1982 2006. Counsel for the petitioner submits that the petitioner was prosecuted by the respondents in a criminal case instituted on their behalf alleging certain charges of wrongful loss to the management by indulging in forgery of bonds in receiving certain documents. The petitioner faced the trial and has been acquitted by the judgment dated 12.08.2005 in R.C. Case No. 9 of 1978(R), vide Annexure 1 passed by the court of SDJM cum Special Judicial Magistrate, C.B.I., Ranchi in Trial No. 2/2005 along with three others. It the contention of the petitioner that the criminal case was instituted by the employer himself and on ending in acquittal, the respondents themselves granted him promotion notionally, vide Annexure 2, and the pay fixation order was issued, vide Annexure 3, however, he has been denied the back wages on the promoted post due to criminal case instituted by the employer himself which, however, ended in acquittal. Counsel for the petitioner submits that in the case of one K.L. Gandhi, vide Annexure 5 dated 28.08.1999, the employee was reinstated in service after acquittal and has been granted full back wages by the employer respondents themselves. Counsel for the petitioner submits that in a similar case of dismissal from service by the respondents Steel Authority of India Limited, the respondents were directed to reinstate him upon his acquittal vide order passed in C.W.J.C. No. 2338 of 1994(R), vide Annexure 6 and were also directed to consider his claim for grant of full salary for the period for which he was out of service. In these facts, learned counsel for the petitioner relied upon a judgment of the learned single Judge of this Court in the case of Binod Kumar Singh Vs. Coal India Limited, reported in (2007) 1 JLJR 51 and submits that if an employee has been deprived of the benefit of his service on account of the acts of the employer by initiation of a criminal proceeding, on his acquittal, the employee concerned is entitled to the back wages and the benefits which were denied to him because of the pendency of the said proceeding. It is submitted that this case is identical to one referred to herein above where the complaint was not instituted by a third party but by the employer himself and, therefore, the petitioner is also entitled to similar consideration. Respondents have appeared and filed their counter affidavit. It is the case of the respondents that as per the order of acquittal as contained in Annexure 1, it would be obvious that it is not a clean acquittal but he has been given the benefit of doubt by the concerned trial Court. It is submitted that the aforesaid facts have been considered by the respondents by giving him notional promotion for the period in which, though he remained in service but was not granted promotion due to pendency of a criminal case. Counsel for the respondents has relied upon the judgments rendered in the case of Union of India Vs. B.M. Jha, reported in (2007) 11 SCC 632 and in the case of A.K. Soumini Vs. State Bank of Travancore, reported in (2003) 7 SCC 238. It is submitted on behalf of the respondents that employee is not entitled to the benefits of arrears on the promoted post if the promotion has been granted retrospectively and the employee concerned has not actually worked on the promoted post for the said period. Counsel for the respondent further submits that the employee as mentioned in Annexure 5 were not similarly placed like the present petitioner as in their case the acquittal was a clean acquittal. However, counsel for the petitioner has opposed the said submissions by stating that such distinguishable feature has not been made out in the counter affidavit of the respondents.
(3.) I have heard counsel for the parties at length and gone through the relevant materials on record. The petitioner admittedly was prosecuted in a criminal case instituted by the employer himself being R.C. Case No. 9 of 1978(R) along with three other persons and by the judgment rendered on 12.08.2005 in Trial No. 2 of 2005 passed by the court of SDJM cum Special Judicial Magistrate, C.B.I., Ranchi, the petitioner was acquitted by the trial Court by giving him benefit of doubt. The petitioner has, therefore, made out a case that he has remained in service and no departmental proceeding has been initiated against him nor he was placed under suspension on account of such criminal charges, however, he was not given promotion during the pendency of the said criminal case. The respondents, after his acquittal, considered his case and granted him promotion, vide Annexure 2 and pay fixation order, as contained in Annexure 3 dated 04.04.2006 was issued fixing his salary notionally on the promoted Grade from S 7 to S 11, however, with a condition that no arrears would be payable to the petitioner on account of such notional promotion.;