- (1.) Prayer in this writ application is for an order directing the Respondents to pay the petitioner his salary and other dues from 13.09.1984 till date of his retirement on 13.12.2005, on the ground that denial of the salary for the aforesaid period, was totally illegal and unjustified on the part of the Respondents.
(2.) THE petitioner was appointed as a Police Constable on 11.10.1965 and since the date of his appointment he had rendered his services at various Police Stations including Jaldega Police Station. During his tenure of posting at the Jaldega Police Station, a criminal case for the offences under Sections 376, 109 and 120 B of the I.P.C. was instituted against him and his senior officer of the Police Station. While the Senior Officer was made the principal accused for the offence of committing rape upon the prosecutrix of the said case, the petitioner was accused of having conspired with, aided and abetted the principal accused for committing the said offence. The petitioner was accordingly remanded to the judicial custody though in course of time, he secured his bail pending trial of the case against him. On the charges that a criminal case was instituted against him for serious offences, he was put under suspension and a departmental proceeding was initiated against him. He submitted his representation praying for keeping the departmental proceedings in abeyance till the conclusion of the criminal trial but his prayer was refused. Finally, after concluding the departmental proceedings ex parte, he was dismissed from service by order dated 13.09.1984. Against the order of his dismissal, he preferred a writ application before this Court, vide C.W.J.C. No. 2428 of 1998 (R) but the same was dismissed. By judgment passed on 13.06.1997, in the criminal trial, he was convicted for the charges in respect of the offences for which he was charged with and sentenced to imprisonment. Against the order of conviction, he preferred a Criminal appeal before this Court vide Cr. Appeal No. 119 of 1997 (R). By order dated 19.04.2006, the appeal was allowed and he was acquitted from all the charges for which he was convicted by the trial court. Thereafter, the petitioner filed his representation before the Respondents -authorities, claiming salary for the period since after the date of his dismissal from service and till the date of his retirement, which was due on 13.11.2005, on the ground that his dismissal from service was improper and unjustified on account of the fact that in respect of the same charge as framed in the departmental proceedings, he had faced the criminal trial and he was found not guilty by the appellate court.
(3.) MR . B. K. Dubey, learned counsel for the petitioner submits that the departmental proceeding was initiated against the petitioner simultaneously while the criminal trial was pending and the charges both in the criminal trial as well as in the departmental proceeding were one and the same. The departmental proceeding was conducted without enabling the petitioner an adequate and reasonable opportunity to be heard. Furthermore, the petitioner was not served with a copy of the enquiry Report, nor was he served with any show cause notice in respect of the punishment proposed to be imposed against him. It is further submitted that in the departmental proceedings, there was no charge against the petitioner of misconduct or dereliction of duty and the only charge against him was that a criminal case was instituted and pending against him for certain serious offences. Learned counsel argues that since on the same set of charges the criminal proceeding was already pending, the departmental proceedings ought to have been kept in abeyance till the conclusion of the criminal proceedings. Learned counsel argues further that on the same set of evidence of the witnesses in the criminal proceedings, the petitioner was ultimately found not guilty for the charges in respect of any of the offences, by the Appellate Court. As such, the evidences of the witnesses, which were identical in nature as deposed in the criminal proceedings, even if made in the departmental proceeding, cannot lead to any contrary view against the petitioner. Learned counsel argues further that although the petitioners writ application, challenging the order of his dismissal was dismissed by this Court but such order of dismissal of the petitioners writ application was passed at a time when the criminal proceeding was still pending against him. Referring to the judgment, passed by this Court in the case of Dhirendra Prasad Mandal -versus -State of Jharkhand and Anr. reported in [2008 1 J.L.J.R. 530] and also to the judgment of the Supreme Court in the case of G.M. Tank -versus -State of Gujarat and Others reported in (2006) 5 SCC 446, learned counsel argues that the principles of law as laid down in the aforesaid cases is that where the departmental proceedings and the criminal proceedings are based on one and the same charges and on the same set of evidences and the criminal proceedings ends in acquittal of the accused, holding him not guilty of the charges, it would be unjust and unfair to allow the findings recorded in the departmental proceedings to stand. The further contention of the learned counsel is that the principle of "No Work No Pay , cannot apply in the case of the petitioner, since the order of his dismissal from his service was not justified and he was illegally restrained from performing his duties, which he could have continued till the age of his retirement and would thereby have earned his salary for the said period. It is further contended that the petitioner is at least entitled to notional service for the aforesaid period, for the purposes of computing the pensionary benefits to which the petitioner was otherwise entitled to. ;