Raj Nath Pathak and others vs State of U.P.and others

R. A. Sharma, .J

Petitioner No. 1 was the Head Master and petitioners No. 2 & 3 were the Assistant Teachers in Primary School, Parchal, Rasoolpur, Block Bilgram, District Hardoi. They were convicted on 2581982 in a Criminal case under Sections 302/149 & 307/149 I.P C. and were awarded punishment of life imprisonment by Additional District and Sessions Judge, Hardoi. By order dated 2291983 petitioners were dismissed from service on the ground of their conviction in the aforesaid criminal Case. Against the judgment of the Sessions Court, petitioners filed appeal before this Court, which has been allowed on 19111990. After appeal was allowed, they filed an application before the respondents for their reinstatement with fullback wages. By order dated 811991, respondent No. 4, District Basic Education Officer, Hardoi reinstated the petitioners with full back wages. Petitioners accordingly joined their service on 911991. Inspite of this order, they were not paid their back wages. Petitioners accordingly filed writ Petition No. 8170 of 1991 before this Court for writ of mandamus for payment of entire arrears of salary for the period with effect from 2191983 to 811991, i.e., from the date of dismissal to the date of reinstatement. This Court by order dated 16121991 granted six weeks ''time to learned Standing Counsel to seek instructions and to indicate as to why arrears of salary have not been paid to the petitioners in accordance with the order of reinstatement dated 811991. As the respondents took no action inspite of the above order, this Court on 1551992 directed the respondents to show cause by filing a counter affidavit by 971992. It was further directed thereby that if they fail to show cause by 971992, they were to pay arrears of salary and allowances to the petitioners from 2191983 to 811991. This order was also not complied with. However, respondent No. 4 by another order dated 1151992 modified the earlier order of reinstatement dated 811991 and directed for reappointment of the petitioners with effect from 811991 on the ground that as they have networked from the date of dismissal to the date of reinstatement (from 2191983 to 811991) they are not entitled for wages for this period. Against this order petitioners filed the present writ petition seeking for its quashing. Further prayer for writ of mandamus for payment of arrears of salary, allowances includ�ing benefit of increments from 1983 to 811991 has also been made.

Respondents have filed counter affidavit aad the petitioners have filed rejoinder affidavit in reply thereto. I have heard learned counsel for the petitioners and the learned Standing counsel.

From the perusal of the orders of removal of the petitioners from Service dated 2091983, copies of which have been filed as Annexures 2 to 4 to the writ petition, it is apparent that the sole ground, on which they were dismissed from service, was their conviction in a Criminal Case under Sections 302/149 & 307/149 I.P.C by the trial Court. Their appeal against the conviction was allowed by this court. If au employee is removed from service on account of this conviction by the trial court in a Criminal case and the appeal filed by him against the conviction is allowed by the appellate Court, he is entitled to be reinstated with full back wages and allowances. In this connection reference may be made to the case of the Divisional Superintendent v. Ram Saran Das (AIR 1961 Alld. 336), wherein the Divisional Bench of this Court has held as under :

"Once the order of conviction passed by the trial Court is set aside by the Higher Court, there does not exist any conviction in the eye of law at all. The order of appellate Court supersedes and sweeps away the order of the trial court altogether. The result of reversal by the appellate court of the order of conviction by the trial court, and its substitution by the order of acquittal would be that there would be no existing order of conviction left at all.

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The punitive action taken against the civil servant was passed solely on the order of conviction, and the removal of the order of conviction has the effect of removing the entire basis of such an order. Once, therefore, the order of conviction falls, the very foundation on which the order of dismissal was passed disappears and the order of dismissal, removal, or reduction in rank must fall with it."

Same view was expressed by the Full Bench of this Court in Kunwar Bahadur v. Union of India (AIR 1969 Alld. 414 F. B.). Following the above decisions, this Court again in Senapati Singh v. State of U. P. (1993 AWC Vol. XXVI 1041) has laid down that if an employee is removed from service on account of his conviction in a criminal case by the trial court and if his appeal against the conviction is ultimately allowed, he is entitled to be reinstated with full back wages. Government by its order dated 1271979 has also reiterated the same position by saying that an employee can be removed from service after his conviction by the trial court, but if his appeal against the conviction is allowed, he will be rein�stated with full back wages.

For the reasons given above this writ petition is allowed with costs and the impugned order dated 1151992 is quashed. Respondents are directed to reinstate the petitioners with effect from the date of their removal from service (20/2291983) with full back wages including allowances and the benefits of increments.

(Petition allowed)