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Judgment
Petitioner was appointed as Helper Grade II in the respondent Department. An FIR being FIR No. 314 of 2003 was registered on 04.08.2003
against some persons including the petitioner. Chargesheet was filed. A criminal case was registered being Sessions Trial No. 97 of 2010. Charges
were framed against the petitioner including others and vide judgment dated 30.01.2014, petitioner was convicted.
On conviction of the petitioner, respondent department by invoking Rule 31.1 of the THDCIL Standing orders, vide order dated 07.02.2014 awarded
major penalty prescribed under Rule 24.2 (b) of the Standing Orders and removed the petitioner from service.Â
Against the judgment dated 30.01.2014, petitioner filed criminal appeal before this Court and this Court vide judgment dated 11.01.2017 acquitted
the petitioner of the charges leveled against him by observing that prosecution has failed to prove its case beyond reasonable doubt. Against the
order dated 11.01.2017, State has filed SLP before the Hon’ble Apex Court, which was dismissed vide order dated 08.08.2017 by observing as
follows:
“We see no reason to interfere with the impugned judgment(s) and order(s) passed by this High Court. The Special Leave Petitions are
accordingly dismissed.â€Â
Vide order dated 13.02.2017, petitioner was reinstated in service in the same grade and designation, as he was on the date of termination i.e.
07.02.2014. During the period of criminal proceedings, a DPC was held and recommendation of the DPC qua the petitioner was kept in sealed cover.
After joining of petitioner, sealed cover was opened and petitioner was promoted to the post of Helper Grade W3 on 01.04.2009. Vide order dated
26.09.2017, it was directed that petitioner shall not be entitled for any salary for the period, he remained out of service i.e. from 07.02.2014 to
16.02.2017, however, pay fixation would be made on the notional basis. Feeling aggrieved, petitioner has approached this Court for backwages.Â
Heard Mr. C.S. Rawat, Advocate for the petitioner and Mr. Shobhit Saharia, Advocate for THDC.Â
Mr. C.S. Rawat, Advocate for the petitioner submits that petitioner is entitled for backwages for the period he remained out of job, as Appellate
Court has acquitted him. In support of his contention, he has placed reliance on the judgments of Hon’ble Supreme Court in the case Shiv
Nandan Mahto Vs. State of Bihar reported in 2013 (11) SCC 626 and Union of India Vs. K.V. Jankiraman reported in AIR 1991 SC 2010.
The facts of Shiv Nandan Mahto (supra) are entirely differently from the case in hand. In the case of K.V. Jankiraman (supra), the Hon’ble
Supreme Court itself has observed as under:
“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
along with the other benefits from the date on which he would have normally been promoted but for the disciplinary/criminal proceedings. However,
there may be cases where the proceedings, whether disciplinary or criminal, are, for example, delayed at the instance of the employee or the
clearance in the disciplinary proceedings or acquittal in the criminal proceedings is with benefit of doubt or on account of non-availability of evidence
due to the acts attributable to 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.â€Â
Mr. C.S. Rawat, Advocate for the petitioner submits that judgment passed by the Appellate Court attained finality, as the SLP filed by the State has
been dismissed by the Hon’ble Apex Court, therefore, as on date, petitioner is not guilty and is entitled for the backwages. Â
I am not impressed with the argument advanced by Mr. Rawat because it is a settled proposition that an order rejecting a SLP at the threshold
without detailed reasons therefor does not constitute any declaration of law. Â
Mr. Shobhit Saharia, Advocate for THDC, has submitted that petitioner was not exonerated honourably and he was granted benefit of doubt by
drawing adverse inference against the prosecution, therefore, he is not entitled for backwages for period he remained out of service. In support of his
contention, he has placed reliance on the judgments of Hon’ble Apex Court in the case of Ajay Kumar Singh and others Vs. Flag Officer,
Commanding in Chief reported in 2016 (9) SCC 179; SBI Vs. Mohd. Abdul Rahim reported in 2013 (11) SCC 67;Â Ranchhodji Chaturji Thakore Vs.
Gujarat Electricity Board reported in 1996 (11) SCC 603; Union of India Vs. Jaipal Singh reported in 2004 (1) SCC 121; Baldev Singh Vs. Union of
India reported in 2005 (8) SCC 747; and Banshi Dhar Vs. State of Rajasthan reported in 2007 (1) SCC 324.Â
I have perused all the judgments relied upon by Mr. Shobhit Saharia, Advocate for THDC. From the perusal of all the judgments relied by Mr.
Saharia, it can safely be said that after acquittal in the criminal case, reinstatement and backwages should not be given automatically to the employee.
Each case requires to be considered in its own backdrop.  Â
In the present case, petitioner was acquitted by the High Court by granting benefit of doubt. Now, it is upto the Department to take appropriate
action against the petitioner in accordance with law. Respondent department chose not to initiate disciplinary proceedings against the petitioner and
reinstated him on the judgment of reversal, granted promotion and fixed the salary notionally.Â
In my considered opinion, petitioner was convicted, therefore, he was not able to perform his duties. It is settled position of law that a convict
cannot be remain in government service. Petitioner remained out of service with effect from 07.02.2014 to 16.02.2017 due to his conviction, therefore,
he was denied salary for that period.Â
In view of the above discussion, I do not find any illegality in it. Respondent Department has already taken lenient view without initiating any
disciplinary proceedings, reinstated the petitioner in service, granted promotion and fixed the salary notionally. Accordingly, no interference is called
for. Petition fails and is hereby dismissed. No order as to costs. Â