Subhash Chandra vs State Of U.P. And Others
2012 Latest Caselaw 1039 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

 						                                     AFR									 RESERVED
 

 
	 CIVIL MISC. WRIT PETITION NO.405 OF 2004     
 
Subhash Chandra...........................................Petitioner
 
Vs..
 
State Of U.P. & Others................................Respondents
 
					   **************
 

 
Hon'ble Rakesh Tiwari,J.

Hon'ble Ashok Pal Singh,J.

(By Hon.Rakesh Tiwari,J.)

Heard learned counsel for the petitioner, learned Standing Counsel for the State-respondents and perused the record.

The petitioner has challenged the order dated 8.10.2003, passed by the Chairman and Managing Director, U.P. Power Corporation Ltd., Lucknow (Appended as Annexure 4 to the writ petition) by which the petitioner has been denied the following benefits:

1.Apart from subsistence allowance paid to the petitioner for the period 7.10.1980 to 21.2.1983 the arrears of salaries during which he was kept under suspension.

2.The arrears of salary to the petitioner for the period 22.2.1993 to 6.10.2002 during which period the services of the petitioner were allegedly terminated by the respondent Corporation.

The backdrop of the case is that the petitioner was appointed as Assistant Engineer in the respondent Corporation in January, 1975. Criminal proceedings were initiated against him in the year 1980 under Section 5(2) of the prevention of Corruption Act and Section 161 of the Indian Penal Code on the basis of a vigilance trap in which the petitioner is alleged to have been caught red handed accepting bribe of Rs.50/- from one Ram Kumar. On account of the aforesaid criminal proceedings the petitioner was arrested on 19.4.1980 and released on bail in less than 48 hours and was suspended thereafter on 7.10.1980.

The 4th Additional Sessions Judge, Bijnor vide his order dated 17.2.1982 in S.T. No.10 of 1981, convicted the petitioner with punishment of one year rigorous imprisonment and fine of Rs.1000/-. Aggrieved by the aforesaid judgment the petitioner preferred Criminal Appeal No.531 of 1982, Subhash Chandra vs. State of U.P., challenging the validity and correctness of the aforesaid order dated 17.2.1982. This order was set aside by the High Court vide its judgment dated 1.12.2000 discarding the entire story of the prosecution of the petitioner having demanded or received Rs.50/- as bribe from Ram Kumar observing thus:

"The learned Sessions Judge in his judgment at page 101 and 102 has returned the finding in the following manner with regard to these so called independent witnesses. According to him Jam Raj and Pratap Singh are related to Ram Kumar. Jam Raj and Pratap Singh are also related to each other. Pratap Singh is son-in-law of Jam Raj's brother. Ram Kumar's brother Pirthi is married to the daughter of the sister of the wife of Lahri. Lahri is elder brother of Jam Raj. All the three witnesses were not stranger to each other Jam Raj admitted that he had appeared as a witness for the police in numerous case. Pratap Singh also admitted that he was known to the police. Under these circumstances the witnesses cannot be said to be independent. No implicit reliance can be placed on any statement of theirs. Their evidence has to be tested but by bit. Only.. parts of their statements which are supported by independent evidence are tobe accepted in this case. With regard to S.D.Tyagi, P.W.-1 and Ram Kumar P.W.-3 the finding returned by the learned Sessions Judge at page 101 is 'At the very out set it may be mentioned that Sri S.D.Tyagi P.W.-1 had taken keen interest in arranging a trap and making it successful. Ram Kumar has also stated that he was deeply interested in the apprehension of the accused". So the finding returned above with regard to other two witnesses also pertain to these witnesses. Once the Court comes to the conclusion that none of these witnesses is worth of any implicit reliance. It is to be examined as to what are those circumstances which from their evidence are corroborated and can be relied upon. This was the peculiar method adhered to by the learned Sessions Judge for holding the appellant guilty. Either the evidence may be wholly unworthy of any reliance or it is partly reliable and partly not reliable or is wholly reliable."

The judgment of the High Court dated 1.12.2000 was challenged in Special Leave to Appeal (Crl.)No.2526 of 2001, before the Supreme Court by the State-respondent which was being dismissed vide its judgment dated 3.8.2001.

It would be relevant here to also note down the conclusions arrived at by the High Court for appreciation of its approach which was later on affirmed by the Supreme Court . The relevant extract of the judgment is quoted below:

"The appellant had examined PW-2 Laxman Singh Verma who is civil engineer and consultant. He had filed Ext.7 the map of the house. This map is in serious conflict with the map prepared by the Vigilance Inspector PW-6. That further goes to suggest that no trap as alleged by the prosecution was in fact conducted at his house. It further suggests that the appellant was forcibly lifted from his house by vigilance Inspector and brought to police station, Kiratpur. He was brought to the Police station is admitted by PW-2, Jam Raj Singh. All the formalities regarding preparation of papers and phenopathalene processing of the notes and preparation of the memo was completed at the police station and not at the place of occurrence as alleged. This prosecution was maliciously launched.

In view of the above discussion this appeal stands allowed. The conviction of the appellant and his sentences are hereby set aside. He is acquitted of the offences. He is on bail. He need not surrender. His bail bond is cancelled and sureties discharged."

The order of conviction on the basis of which the petitioner had been dismissed from service having been set aside and attained finality, he represented before the respondent authority for being reinstated in service with all consequential benefits. The Chairman and Managing Director reinstated the petitioner in service on the post of Assistant Engineer by a conditional order on 21.9.2002,to the effect that the question of payment of salary to the petitioner for the period of his suspension till the date of his reinstatement in service as well as the question of payment of his salary and allowances and action tobe taken in the departmental enquiry against him would be separately passed. The order dated 21.9.2002 for ready reference is quoted below:

"la[;k 3197&v0dk0 ,oa [email protected]@[email protected](, ) 02&5 (14)[email protected] fnukad flrEcj 21] 2002

vkns'k

Jh lqHkk"k pUnz lgk;d vfHk;Urk ds fo:) jkT; lrdZrk }kjk ?kwWl ysrs gq, jaxs gkFkksa idMs tkus ij mUgsa iwoZorhZ jkT; fo|qr ijk lEizfr m0 iz0 ikoj dkiksZjs'ku ds vkns'k la0 4938&da&@,[email protected]&5 (14) [email protected]%@80 fnukad 7&10&80 }kjk rRdky izHkko ls fuyfEcr dj fn;k x;kA muds fo:) /kkjk 5 (2) Hkz"Vkpkj fuokj.k vf/kfu;e ,oa /kkjk 161 Hkk0 na0 fo0 ds v/khu ek0 U;k;ky;] fo'ks"k U;k;k/kh'k fctukSj }kjk vfHk;kstu izfdz;k QyLo:i fnukad 17&2&82 dks fn;s x;s fu.kZ; esa iznku fd, x;s n.M ds i'pkr iwoZorhZ jkT; fo|qr ifj"kn ds vkns'k la0 327&ds&,lbZch&5 (,) &83&14 th& N%@80 fnukad 22&2&83 ds }kjk Jh lqHkk"k pUnz dh lsok;sa fuyEcu voLFkk esa gh lekIr dj nh xbZA

Jh lqHkk"k pUnz }kjk ek0 fo'ks"k U;k;k/kh'k] fctukSj }kjk ikfjr n.Mkns'k fnukad 17&2&82 ds fo:) ek0 mPp U;k;ky; bykgkckn esa nk;j ;kfpdk la0 [email protected] esa ek0 mPp U;k;ky; us fnukad 1&12&2000 dks fn;s x;s fu.kZ; }kjk Jh lqHkk"k pUnz dks vkjksi eqDr djrs gq, mudks fn;s x;s n.Mksa dks lekIr dj fn;k x;kA

ek0 mPp U;k;ky; bykgkckn ds fu.kZ; fnukad 1&12&2000 dks n`f"Vxr j[krs gq, Jh lqHkk"k pUnz dks ,rn~}kjk dk;ZHkkj xzg.k djus dh frfFk ls m0 iz0 ikoj dkiksZjs'ku fy0 dh lsok esa lgk;d vfHk;Urk ds in ij iquZLFkkfir fd;k tkrk gSA

Jh lqHkk"k pUnz dks mudh [email protected] lekfIr dh vof/k ls lsok esa iquZLFkkiuk ds ckn dk;ZHkkj xzg.k djus dh frfFk ds iwoZ frfFk rd ds osru ,oa HkRrksa ds Hkqxrku ,oa foHkkxh; vuq'kklfud dk;Zokgh ds laca/k esa fu.kZ; vyx ls fy;k tk;sxkA

Hkonh;]

g0 v0 (v:.k dqekj feJk) v/;{k ,oa izcU/k funs'kd"

The grievance of the petitioner is that no departmental proceedings were thereafter instituted against him in the matter but the Deputy General Manager, pursuant to the order dated 21.9.2002 denied the petitioner his arrears of salary for the period 7.10.1980 to 21.2.1983 by his order dated 8.10.2003 during which he has been kept under suspension as also for the period 7.10.1980 to 6.10.2002 during which he was kept out of service under order of termination.

The order dated 8.10.2003 reads thus:

"vkns'k

Jh lqHkk"k pUnz (74145) ] lgk;d vfHk;Urk }kjk ?kwl ysrs gq, jkT; lrdZrk }kjk jaxs gkFkksa idMs tkus ij mUgsa iwoZorhZ jkT; fo|qr ifj"kn lEizfr m0 iz0 ik0dk0 fy0 ds vkns'k la0 4938&[email protected],lbZch&80&5 (14) [email protected]@80 fnukad 7&10&80 }kjk rRdky izHkko ls fuyfEcr dj fn;k x;kA muds fo:) /kkjk 5 (2) Hkz"Vkpkj fuokj.k vf/kfu;e ,oa /kkjk 161 Hkk0na0fo0 ds v/khu ek0 U;k;ky;] fo'ks"k U;k;k/kh'k] fctukSj }kjk vfHk;kstu izfdz;k ds QyLo:i fnukad 17&12&82 dks fn;s x;s fu.kZ; esa iznku fn;s x;s n.M ds QyLo:i iwoZorhZ jkT; fo|qr ifj"kn ds vkns'k bZ& 327&ds&,lbZch&5 (,)&83&[email protected]@870 fnukad 22&2&83 ds }kjk mudh lsok,a fuyEcu voLFkk esa gh lekIr dj nh x;hA

2& Jh lqHkk"k pUnz }kjk ek0 fo'ks"k U;k;k/kh'k fctukSj }kjk ikfjr vkns'k fnukad 17&2&82 ds fo:) ek0 mPp U;k;ky;] bykgkckn esa nk;j ;kfpdk la0 [email protected] esa ek0 mPp U;k;ky; ds fnukad 1&12&2000 dks fn;s x;s fu.kZ; }kjk Jh lqHkk"k pUnz dks vkjksi eqDr djrs gq, mudks fn;s x;s n.M dks lekIr dj fn;kA ek0 mPp U;k;ky; ds mDr fu.kZ; ds ifjizs{; esa dkiksZjs'ku ds vkns'k la0 3197&v0dk0 ,oa lrZ0 [email protected] 2002&5 ,&02&5 (14) thbZ&[email protected] fnukad 21&9&2002 }kjk dk;ZHkkj xzg.k dh frfFk ls Jh lqHkk"k pUnz dks m0 iz0 ikoj dkiksZjs'ku fy0 dh lsok esa lgk;d vfHk;Urk ds in ij iquZLFkkfir dj fn;k x;kA Jh lqHkk"k pUnz ds dkuiqj {ks= esa fnukad 7&10&2002 (iwoZkUg) dks dk;ZHkkj xzg.k dj fy;k gSA

Jh lqHkk"k pUnz dh dkiksZjs'ku dh lsok esa iquLFkkZiuk laca/kh mi;qDr vkns'k fnukad 21&9&2002 ds rkjrE; esa ,rn~}kjk] fuEufyf[kr vkns'k fd;s tkrs gSa

1& Jh lqHkk"k pUnz (74145)] lgk0 vfHk0 dks mudh fuyEcu dh vof/k fnukad 7&10&80 ls 21&2&1983 rd ds fy;s vkgfjr fd;s tk pqds thou fuoZkg HkRrs ds vfrfjDr dksbZ vU; osru ,oa HkRrk ns; ugha gksxkA

2& Jh lqHkk"k pUnz }kjk lsok lekfIr esa fcrkbZ x;h vof/k fnukad 22&2&1983 ls 6&10&2002 rd fdlh izdkj ds osru ,oa HkRrs dk Hkqxrku ugha fd;k tk;sxkA

3& mijksDr izLrj 1 rFkk 2 esa mfYyf[kr izfrcU/kksa ds vfrfjDr Jh lqHkk"k pUnz dh foHkkx ls lsok fujUrjrk nsrh jgsxhA

la[;k& 3733 (1) &v0dk0 ,oa lr0&5 (,) &03 rn~fnukad

izfrfyfi Jh lqHkk"k pUnz (74145) mi [k.M vf/kdkjh] fo|qr forj.k [k.M izFke] vkSjS;k] m0 iz0 ikdkfy0 dks lwpukFkZ izsf"krA

vkKk ls

g0v0

mi egkizca/kd (v0 dk;Z)"

According to the petitioner he was falsely prosecuted as apparent from the findings recorded in the judgment of the High Court, which was confirmed by the Apex Court and as such is entitled to the salary for the period 07.10.1983 to 6.10.2002 aforesaid.

Counsel for the petitioner has placed reliance upon the judgment rendered in Ranchhorji Chaturji Thakore vs. Superintendent Engineer, Gujarat Electricity Board, Himmatnagar (Gujarat) and another (supra) 1996 (11)SCC 603; and the judgment rendered in Krishna Kant Raghunath Bibhavnekar vs. State of Maharashtra and others, 1997 SCC (L & S) 847 in support of his case.

Learned counsel for the respondent also has relied upon the judgment rendered in Ranchhorji Chaturji Thakore vs. Superintendent Engineer, Gujrat Electricity Board, Himmatnagar (Gujarat) and another (supra) as well as Krishna Kant Raghunath Bibhavnekar vs. State of Maharashra and others (supra) and upon the judgment of State of U.P. And another vs. Ved Pal Singh and another, decided by a Bench of Hon.K.Ramaswamy,J. and Hon. G.B. Pattanaik,J of Apex Court on 7.10.1996.

Since both the parties have relied upon the same judgment rendered by the Apex Court in Ranchhorji Chaturji Thakore (supra) and Krishna Kant Raghunath Bibhavnekar (supra), it would be proper to appreciate the reasoning of the Apex Court with regard to the question as to consequent upon acquittal in criminal case a delinquent employee becomes entitled to back wages/salary and consequential benefits of service. Being a short judgment the judgment of Ranchhodji Chatruji Thakore(supra) is quoted below:

"Delay condoned.

This case does not warrant interference for the reason that, admittedly, the petitioner was charged for an offence under Section 302 read with 34 IPC for his involvement in a crime committed on October 1, 1986. The Sessions Judge had convicted the petitioner under Section 302 read with 34 IPC and sentenced him to undergo imprisonment for life. On that basis the respondents had taken action to have him dismissed from service since he was working as Junior Clerk in the respondent-Electricity Board. The petitioner challenged the validity of the dismissal order by way of a special civil application filed under Article 226 of the Constitution. Pending disposal, the Division Bench of the High Court by its judgment dated October 14,1992 acquitted him of the offence. Consequently, while disposing of the writ petition, the learned single judge directed the respondent to reinstate him into the service with continuity of the service, but denied back wages. The petitioner then filed letters Patent Appeal No.319/93 which was dismissed by the impugned order dated August 26,1993. Thus, this special leave petition.

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 into 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 the situation. The question of back wages would be considered only if the respondents have taken action by way of disciplinary proceeding and the action was found to be unsustainable in law and he was unlawfully prevented from discharging the duties. In that context, his conduct becomes relevant, Each case requires to be considered in his own backdrops. 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.

The special leave petition is accordingly dismissed."

As regards the judgment rendered in Krishna Kant Raghunath Bibhavnekar (supra) is concerned the Apex Court in paragraph no.4 of its judgment, has given the philosophy and object of prosecution of public servants, while rejecting the plea of the appellant counsel in that case that "under Rule 72(3) of the Maharashtra Civil Services (Joining Times, Foreign Services and Payment during Suspension, Dismissal and Removal) Rules, 1991 cannot be applied to the appellant nor would the respondents be satisfied in treating the period of suspension of the appellant, as not being warranted under the Rules.

The Court in paragraph 4 of that case held:

Mr. Ranjit Kumar, learned counsel for the appellant, contends that under Rule 72(3) of the Maharashtra civil services (Joining Time, foreign Services, and Payment during Suspension, dismissal and Removal) Rules, 1991 (for short, the 'Rules') the Rules cannot be applied to the appellant nor would the respondents be justified in treating the period of suspension of appellant, as the period of suspension, as not being warranted under the Rules. We find no force in the contention. It is true that when a Government servant is acquitted of offences, he would be entitled to reinstatement. But the question is: whether he would be entitled to all consequential benefits including the pensionary benefits treating the suspension period as duty period, as contended by Shri Ranjit Kumar? The object of sanction of law behind prosecution is to put an end to crime against the society and laws thereby intends to restore social order and stability. The purpose of prosecution of a public servant is to maintain discipline in service, integrity, honesty and truthful conduct in performance of public duty or for modulation of his conduct to further the efficiency in public service. The Constitution has given full faith and credit to public acts, conduct of a public servant has to be an open book: corrupt would be known to everyone. The reputation would gain notoriety. Though legal evidence may be insufficient to bring home the guilt beyond doubt or fool proof. The act of reinstatement sends ripples among the people in the office/locality and sows wrong signals for degeneration of morality, integrity and rightful conduct and efficient performance of public duty. The constitutional animation of public faith and credit given to public acts, would be undermined. Every act or the conduct of a public servant should be to effectuate the public purpose and constitutional objective. Public servant renders himself accountable to the public. The very cause for suspension of the petitioner and taking punitive action against him was his conduct that led to the prosecution of him for the offences under the Indian Penal Code. If the conduct alleged is the foundation for prosecution, though it may end in acquittal on appreciation or lack of sufficient evidence, the question emerges: whether the Government servant prosecuted for commission of defalcation of public funds and fabrication of the records, though culminated into acquittal, is entitled to be reinstated with consequential benefits? In our considered view, this grant of consequential benefits with all back wages etc. cannot be as a matter of course. We think that it would deleterious to the maintenance of the discipline if a person suspended on valid considerations is given full back wages as a matter of course, on his acquittal. Two courses are open to the disciplinary authority, viz., it may enquire into misconduct unless, the self-same conduct was subject of charge and on trial the acquittal was recorded on a positive finding that the accused did not commit the offence at all; but acquittal is not on benefit of doubt given. Appropriate action may be taken thereon. Even otherwise, the authority may, on reinstatement after following the principle of natural justice, pass appropriate order including treating suspension period as period of not on duty , (and on payment of subsistence allowance etc.) Rules 72(3), 72 (5) and 72 (7) of the Rules give a discretion to the disciplinary authority. Rule 72 also applies, as the action was taken after the acquittal by which date rule was in force. Therefore, when the suspension period was treated to be a suspension pending the trial and even after acquittal, he was reinstated into service he would not be entitled to the consequential, he was reinstated into service, he would not be entitled to the consequential benefits. As a consequence, he would not be entitled to the benefits of nine increments as stated in para 6 of the additional affidavit. He is also not entitled to be treated as on duty from the date of suspension till the date of the acquittal for purpose of computation of pensionary benefits etc. The appellant is also not entitled to any other consequential benefits as enumerated in paragraphs 5 and 6 of the additional affidavit."

Similarly in the case of State of U.P. vs. Ved Pal Singh and another, the only limited point for consideration by the Supreme Court on which notice had been issued was question of payment of back wages to temporary employee who was removed from service on conviction by a Criminal Court for an offense under Section 409 I.P.C., but was acquitted later on. In that case the record of service of the respondent was produced before the Tribunal and on perusal of it, the Tribunal was not inclined to interfere with the order. However, the High Court interfered with the order of removal of the employee from service. From the records placed before the Apex Court, the Court while recording its satisfaction held that:-

"we are satisfied that the respondent is not entitled to the back wages. His integrity was doubted and he was found to be man of doubtful integrity. His confidential reports are not good. "

The Supreme Court, provided reason for the conclusion of corruption and its effect on the society by misuse of his office by a public servant in discharge of his official duties. The Supreme Court gave the following reasons for not interfering in such matters even on equitable considerations:-

"Corruption is the result of deep-seated moral degradation and unsatiated greed for wealth. The office of public service affords an opportunity to the public servant to abuse of the office in that pursuit to accept illegal gratification for the discharge of official duty. Criminal prosecution launched against the public servant many a time may end may be due to technical defects inapathy on the part of the prosecution or approach in consideration of the problem or the witnesses, turn hostile or other diverse reasons but the meet of the matter is that on equitable consideration the Government servant claims reinstatement into service. Equity per se may not prevent the Government to take appropriate action under the conduct rules or under Article 311 of the Constitution but many a time they do become fruitless exercise"

After hearing counsel for the parties and perusal of records it appears that the petitioner was falsely implicated and prosecuted in the criminal case, which has been noticed by the High Court while setting aside the order of punishment passed against him; that there was no evidence against the petitioner and the prosecution was initiated on the basis of sanction accorded by the Chairman of U.P. State Electricity Board in the aforesaid case of bribe in which the petitioner is alleged to have been involved and that for the proceedings to have been undertaken against him. It is the respondents who had granted sanction for prosecuting the petitioner by order dated 9.3.1981 passed by the Chairman of U.P. State Electricity Board as appears from the judgment of the High Court, which reads thus:

"So far as the finding of learned Sessions Judge is concerned he has held in so many words that no implicit reliance can be placed upon the evidence of any one of these four witnesses. Therefore he had discarded their evidence as wholly unreliable. Once the evidence of these witnesses is rejected as wholly unreliable there remains hardly anything for the learned Sessions Judge to rely upon for any circumstances occurring in their testimonies. Can a conviction still could be procured if the circumstances available on record furnish any clinching evidence.

The circumstances relied upon by the learned Sessions Judge as could be gathered from the discussion are one that the order had reached the office of the S.D.O. On 23.3.80. The second aspect which had found favour with the learned Sessions Judge was that Ram Kumar P.W.-3 had met the appellant admittedly on 2-3 occasions before his apprehension by the police on 2-3 occasions before his apprehension by the police on 19.4.80. The third circumstances relied against the appellant by the trial court is that the evidence of Ram Murti Lal Gupta PW-5 clinchingly established that the order passed by the S.D.O. was received by him on 19.4.80 at about 4.30 P.M. 19.4.1980 is the date on which in between 2.30 and 3-00 P.M. The arrest of the appellant while accepting the bribe money was effected by P.W.-1 S.D. Tyagi in the trap organized by him. So if these circumstances are clinchingly proved, the conviction of the appellant still can be sustained. The learned Sessions Judge placed reliance on his statement before the charge/made by the accused in the court that P.W.-3 Ram Kumar had complained to him on a number of occasion again the junior Engineer for not laying the connections.

The response of the appellant was that on one or two occasions he had made a general complaint and he never met him in his office. This portion of the statement that he had met him on one or two occasion was relied upon by the learned Sessions Judge as his admission of the case. Statement of an accused to a particular question cannot be shorn out of context. It has to be read in its totality. The examination of his statement in its entirely shown that it was no admission at all. The question did not pertain to him but to junior engineer who was to lay the line. It was not regarding signing the order by him. As a matter of fact the nature of this question is indicative of the fact that the order was already in existence and the complaint made by the informant PW-3 Ram Kumar was against the junior Engineer and not against the appellant.

In the light of this discussion this piece of the evidence as relied upon by the learned Sessions Judge is of no avail to the prosecution against the appellant. It is wholly in a different context and as earlier observed that it is indicative of the circumstance of existence of the order and not of any complaint regarding not passing that order by the appellant."

.........

"The appellant had examined PW-2 Laxman Singh Verma who is civil engineer and consultant. He had filed Ext.7 the map of the house. This map is in serious conflict with the map prepared by the Village Inspector PW-6. That further goes to suggest that no trap as alleged by the prosecution was in fact conducted at his house. It further suggests that the appellant was forcibly lifted from his house by vigilance Inspector and brought to police station, Kiratpur. He was brought to the Police station is admitted by PW-2, Jam Raj Singh. All the formalities regarding preparation of papers and phenopathalene processing of the notes and preparation of the memo was completed at the police station and not at the place of occurrence as alleged. This prosecution was maliciously launched.

In view of the above discussion this appeal stands allowed. The conviction of the appellant and his sentences are hereby set aside. He is acquitted of the offences. He is on bail. He need not surrender. His bail bond is cancelled and sureties discharged."

It is clear from the judgment of the High Court dated 1.12.2000 in Criminal Appeal No.531 of 1982, Subhash Chandra vs. State, that the theory of involvement of the petitioner propounded by the prosecution in the criminal proceedings was shattered. The Supreme Court had also upheld the judgment of the High Court aforesaid in Special Leave to Appeal (Criminal)No.2526 of 2001, which upon hearing was dismissed by order dated 13.8.2001.

It is true that the Chairman/Managing Director reinstated the petitioner in service on the post of Assistant Engineer by passing a conditional order dated 21.9.2002 saying that the question of payment of wages/salary to the petitioner for the period in question would be decided later on. He has not referred to any Rules, Regulation and Order under which the Power Corporation has decided the question of payment of salary as was in the case of Krishna Kant Raghunath Bibhavnekar (supra) decided by the Apex Court. No reason appears to have been given when the subsequent order dated 8.10.2003 was passed by the Chairman/Managing Director, U.P. Power Corporation, Lucknow for non-payment of the salary and other benefits to the petitioner after he was acquitted from the criminal court and reinstated on dismissal of criminal appeal by the High Court which was confirmed by the Apex Court in Civil Leave to Appeal (Criminal). On perusal of the impugned order it is apparent that the facts have been narrated by the Deputy General Manager (Karmik Anubhag) without giving any reason or basis for the orders. Neither natural justice was observed by giving an opportunity to the petitioner of hearing or by giving him a show cause notice prior to passing the order convicting the petitioner with serious consequence. At this stage the judgment cited by the learned counsel for the parties may also be considered which have been extracted in detail.

In the case of Ranchhodji Chatruji Thakore (supra) the accused therein had been convicted after trial under Section 302 read with Section 34 I.P.C. for his involvement in crime and in that case too the accused had been acquitted by the High Court with a direction to the respondents to reinstate him with continuity of service. Back wages were denied to him. As such, the petitioner in that case filed Letters Patent Appeal No.399 of 1993, which was dismissed by order dated 26.8.1993 giving rise to Special Leave Petition before the Apex Court. In this back drop the Court considered the question as to whether the appellant in that case was entitled to back wages and held that:-

"It was his conduct of involving himself in the crime that was taken into 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 basic of the conviction by operation of proviso to the statutory rules applicable the situation. The question of back wages would be considered only if the respondents have taken action by way of disciplinary proceeding and the action was found to be unsustainable in law and he was unlawfully prevented from discharging the duties. In that context, his conduct becomes relevant, Each case requires to be considered in his own backdrops."

Therefore, it appears that it is not a straight jacket formula that back wages can be denied to an employee who is accused in the criminal proceedings. In that case the Apex Court was of the view that the accused who had been acquitted later had disabled himself from rendering service on account of his conviction and incarceration in jail. Therefore, he had not been found to be entitled for payment of back wages.

In the case of Krishna Kant Raghunath Bibhavnekar (supra) considering the object of prosecution of public servant the Court was of the view that the purpose of prosecution to a public servant is to maintain discipline in service, integrity, honesty and truthful conduct in performance of public duty. The backdrop of that case was that during the pendency of criminal trial the appellant before the Supreme Court was placed under suspension and was paid subsistence allowance on his acquittal. He was reinstated but consequential benefits were not given to him in view of the Rule 72 of the Maharashtra Civil Services (Joining Time, Foreign Services, and Payment during Suspension, Dismissal and Removal) Rules 1991, which vested the disciplinary authority with discretion to recall payment during suspension period. In this back drop rejecting the claim of the appellant the Court had made observation in paragraph 4 of the judgment which is quoted in the body of this judgment. It may also be noted that the appellant in that case was Compositor who was charged for the offenses punishable under Section 409 I.P.C. as in the case of Ranchhodji Chatruji Thakore (supra). He was also acquitted but consequential benefits were not paid to him. Therefore, he approached the Administrative Tribunal, who by impugned order dated 23.3.1995 dismissed the application.

Since both the parties have relied upon the two judgment of the aforesaid cases, the distinguish feature may be brought out here. In the aforesaid two cases relied upon by counsel for the parties, offenses were grave in which the petitioners involved themselves knowingly and willingly. It might be due to inadequacy of evidence that they had been acquitted. Even in the present case the High Court as a matter of fact found that petitioner was not involved in the crime for which he was made accused rather he was implicated on the basis of concocted story which was found to be without allegations. The judgment of the High Court was also affirmed by the Supreme Court in the Special Leave to Appeal. In both the two cases relied upon by the opposite party, aforesaid, the Supreme Court had found the involvement of the accused who had been acquitted. As regards the third case of Ved Pal Singh (supra) is concerned, the Apex Court did not interfere in the matter as it was specified on the basis of the record placed before it that the employee in that case was not entitled to back wages as his integrity was doubtful.

In the aforesaid context a line of distinction has to be drawn in the cases where a public servant or an employee involved himself in an offence of criminal nature than one in which an employee or public servant is framed for an alleged offence which he had not committed. The distinguishing feature in instant case at hand is also that the judgment of the High Court has been affirmed by the Apex Court and the respondents had failed to establish the offence of his taking bribe of Rs.50/- for laying down the electrical line. Therefore, apart from the philosophy for not granting back wages in the cases referred to by the respondents, we are of the considered opinion that the back wages cannot be denied to the petitioner for the reasons stated above.

We accordingly allow the writ petition and direct the respondents to pay the arrears of salary for the period 7.10.1980 to 6.10.2002 with all consequential benefits and granting promotion to the post of Executing Engineer from the date from which the persons junior to the petitioner have been promoted.

No order as to cost.

Dated:30.4.2012

AKJ