Ganga Kumar Srivastva v. The Bihar Sta

The relevant part of the judgment of this Court in the writ petition reads as follows:- “……….The writ application is thus dismissed without costs. However, the learned counsel for the parties have fairly agreed that in case of success of the petitioner in the appeal pending before the Apex Court and honourable acquittal in the said appeal, the petitioner will be entitled for re-instatement in service with all consequential benefits, for which the Board shall consider in accordance with law.” From the order aforesaid of this Court which was an inter- party order, it is clear that parties (including respondent-Board) fairly agreed that in case the Apex Court gave an honourable acquittal to the petitioner in the criminal appeal pending before the Appellate Court, the order of the criminal appeal by this Court then the petitioner would be entitled to reinstatement in service with all consequential benefits. The criminal appeal before the Supreme Court being Criminal Appeal No.1186 of 1999 was ultimately taken up and was allowed by judgment - 3 - and order dated 20th July 2005. The judgment and order of conviction of the Special Judge, as affirmed by the High Court, was set aside. Not only that, it was a complete honourable acquittal. The Apex Court held that the defence of the accused was probable. It clearly noted that the petitioner was wrongly being prosecuted. The finding inter alia are reflected in the following orders:- “……….Even otherwise, the defence of the accused was more probable and therefore it should be accepted. It was one of the defence of the appellant that because of starting a criminal case against the complainant, the trap case was initiated by the vigilance department at the instance of the complainant. It is not in dispute that a complaint at the instance of the appellant was made against the complainant and another for alleged theft of electricity and complainant was found guilty which was however set aside in appeal. In the background of this fact and other circumstances as noted hereinearlier can it not be said that the defence case was more probable that of prosecution case and that in the facts and circumstances and evidence on record defence case must be accepted. The aforesaid dramatic case was initiated by the vigilance - 4 - department at the instance of the complainant. On consideration of the entire materials on record and in view of our discussion made hereinabove, we are therefore of the view that Courts below including the High Court had acted in a manner which was not warranted and the defence of the accused-appellant was probable and therefore no conviction could be made against the accused-appellant……” As a consequence of the said honourable acquittal petitioner informed the Board and represented that he should not only be reinstated in service but should be given back wages as also all promotions that were due. The Board considered the matter and held that though petitioner was acquitted and was liable to be reinstated he was not entitled to back wages as he had not worked for that period. Board however granted him due promotion and emoluments commensurate to the promotion. Thus, the dispute that before this Court is with regard to payment of back wages for the period

31.07.2000 to 20.07.2005. This is the resolution of the Board in its meeting dated 11.06.2009. On behalf of the petitioner Mr. Chitranjan Sinha, learned Senior counsel appearing in support of the writ petition submits that the petitioner was prevented from doing work. He was all along ready and willing to do work. He was not punished in any departmental proceedings. He was malafidely prosecuted and ultimately was given - 5 - an honourable exist by the Supreme Court and was exonerated of all the charges. The acquittal was not on any technical grounds or on grounds of benefit of doubt being given. The Apex Court in fact found that the entire defence explanation was more probable and acceptable. In that view of the matter, the petitioner was wrongly prevented from performing his work and as a consequence thereof, could not be denied his back wages. A reliance was placed on a three Judge Division Bench judgment of the Apex Court in the case of Union of India Vs. K.V. Jankiraman since reported in AIR 1991 Supreme Court 2010. On the other hand, Mr. Vinay Kirti Singh, learned counsel appearing for the Board submits that granting back wages on reinstatement is not as a matter of right. He submits that where an employee by his conduct invites punishment by reason of which the employee is then prosecuted then on reinstatement the employee is not entitled to back wages. The principle is akin to no work no pay. Having considered the matter, in my view, the writ petition must succeed primarily on two grounds. Firstly, we cannot loose sight of an inter-party order suffered by the Board in shape of the order passed in the writ petition, as quoted above. This Court would have ordinarily held in that matter that on reinstatement as a consequence of an honourable acquittal petitioner would be entitled to all consequential benefits but as fairly agreed to the said proposition there was no need for a judgment. Once the writ petition was disposed of on an agreed consequence it is now too late in the day for the Board to resile from the said stand or ignore the said stand. The order binds the petitioner as - 6 - much as it binds the Board that as a consequence of reinstatement as observed in the writ petition that all consequential relieves would be available to the petitioner without exception and that being so petitioner would be entitled to back wages. The second ground for allowing the writ petition is, as has been held by the Apex Court in the case of Janakiraman (supra) and in particular paragraph-7 all the contentions as raised on behalf of the Board as against the petitioner were specifically raised and rejected by the Apex Court. In similar circumstances in Jankiraman’s case their Lordships held thus:- “…..We are not much impressed by the contentions advanced on behalf of the authorities. The normal rule of “no work no pay” is not applicable to cases such as the present one where the employee although he is willing to work is kept away from work by the authorities for no fault of his. This is not a case where the employee remains away from work for his own reasons, although the work is offered to him. It is for this reason that F.R.17(1) will also be inapplicable to such cases. We are, therefore, broadly in agreement with the finding of the Tribunal that when an employee is completely exonerated meaning thereby that he is not found blameworthy in the least and is not visited with the penalty even of censure, he has to be given the benefit of the salary of the higher post - 7 - along with the other benefits from the date on which he would have normally been promoted but disciplinary/criminal proceedings. However, there may be cases where proceedings, whether disciplinary or criminal, are, for example, delayed at the instance of the employee or the clearance in the disciplinary proceedings or acquittal criminal proceedings is with benefit of doubt or on account of non-availability of evidence due to the acts attributable the employee etc. In such circumstances, the concerned authorities must be vested with the power to decide whether the employee at all deserves any salary for the intervening period and if he does, the extent to which he deserves it. Life being complex, it is not possible to anticipate and enumerate exhaustively circumstances under which consideration may become necessary. To ignore, however, such circumstances when they exist and lay down an inflexible rule that in every case when employee exonerated disciplinary/criminal proceedings he should be entitled to all salary for the intervening period is to undermine discipline in the administration and - 8 - jeopardize public interests……..” In my view, in the present case, in view of the judgment in the writ petition, as referred to above, and the findings of the Apex Court in the criminal appeal by which not only the petitioner was given an honourable exist virtually the Apex Court held that the prosecution to be mala fide, there is no escape from the finding that the petitioner was kept out of work against his will. The consequence would be that petitioner cannot be penalized by depriving him of his remuneration for the said period. In fairness to the learned counsel for the Board, who has relied on certain later judgments of the Apex Court, I must note that none of those judgments lay down as a matter of law and as a matter of rule that an employee shall not be entitled to back wages on reinstatement. Those cases must be read in the facts in which they were decided. Those facts do not emanate in the present case, which is governed more by the law, as noticed in Jankiraman’s case (supra). For the reasons aforesaid, the resolution of the Board dated

11.06.2009, as contained in Annexure-B to the counter affidavit, whereby the petitioner is deprived of his wages for the period

31.07.2000 to 20.07.2005, is set aside and the Board is directed to pay the wages which were due to the petitioner during the aforesaid period in full within a period of two months from today. With these observations and directions, the writ petition stands allowed. Trivedi/ (Navaniti Prasad Singh, J.)