PARMOD KOHLI, J. - (1.) 2003 (4) JCR 222 (SC).
(2.) PETITIONER has accordingly sought quashment of the impugned communication dated 3.6.2004, order of dismissal dated 6.7.1999 and with further directions for payment of his salary and all other service benefits up to the date of his retirement on 31.8.2002. Respondents have resisted the claim of the petitioner on the same ground as urged in the impugned communication. Only ground that needs to be considered is whether the petitioner is entitled to salary and back wages after his acquittal by the Appellate Court for the period he was out of job on account of his dismissal vide dismissal order dated 6.7.1999 on his conviction. Learned Counsel appearing for the respondents has placed reliance upon the judgment in case of Union of India v. Jaipal Singh (supra). This judgment is also the basis for denial of the claim of the petitioner as is evident from the impugned communication dated 3.6.2004. In the aforesaid judgment, an employee was convicted for an offence under Section 302 read with Section 34 of IPC along with his brother and later acquitted by the Appellate Court. It is relevant to notice the observations of the Apex Court in the aforesaid judgment which reads as under: On going through the same, we are in respectful agreement with the view taken in (supra). It 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. Consequently, the reasons given in the decision relied upon, for the appellants are not only convicting but are m consonance with reasonableness as well. Though exception taken to that part of the order directing re -instatement cannot be sustained and the respondent has to be re -instated, in service, for the reason that the earlier discharge was on account of these criminal proceedings and conviction of those criminal proceedings and conviction only, the appellants are well within their rights to deny back wages 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 back wages also, without adverting to all such relevant aspects and considerations. Consequently the order of the High Court in so far as it directed payment of back wages are liable to be and is hereby set aside. 1996 (11) SCC 603. In the aforesaid judgment also, the employee was involved for an offence under Section 302 read with Section 34, IPC and convicted by the Sessions Court and later he was acquitted by the High Court. He claimed reinstatement and back wages. Honble Supreme Court on consideration observed as under:
(3.) THE reinstatement of the petitioner into the service has already been ordered by the High Court. The only question is whether he is entitled to back wages. It was his conduct of involving himself in the crime that was taken not 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 form discharging the duties. In that context his conduct becomes relevant. Each case requires to be considered in its own backdrop. 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. The learned single Judge and the Division Bench have not committed any error of law warranting interference.;