Judgment:
R.R. Prasad, J.
1. The petitioner has prayed for a direction to the respondents for the payment of back wages and consequential benefits for the period of his dismissal until he was reinstated consequent upon acquittal from the criminal charges.
2. While the petitioner was working as Fan Operator/Switch Board Attendant at Angarpathra Colliery, Katras, a unit of M/s. Bharat Coking Coal Limited, a criminal case was lodged under Sections 302/149 of the Indian Penal Code against him and others in which he was convicted on 23.12.1988 by the court of sessions and was sentenced to undergo imprisonment for life. Thereupon, memo of charge was served upon the petitioner calling upon him to show cause as to why not a disciplinary action be taken for committing such offence involving moral turpitude, a misconduct in terms of model standing order. Thereafter regard being had to the fact that the petitioner was convicted and sentenced for life imprisonment, he was dismissed from service with effect from 22.4.1989.
3. Further case of the petitioner is that even appeal preferred against the order of conviction and sentence, was dismissed by this Court, vide its judgment dated 14.9.1999. Thereafter the petitioner moved before the Hon'ble Supreme Court and an filed appeal, vide Criminal Appeal No. 497 of 2000 challenging the order passed by this Court which was allowed and the order of conviction and sentence was set aside by the Hon'ble Supreme Court on 7.12.2001.
4. Consequent upon the acquittal from the criminal charge, the petitioner made a representation before the concerned respondents praying therein for his reinstatement with effect from 22.4.1989 but to the utter surprise to the petitioner, the said representation was rejected.
5. Being aggrieved with that, the petitioner preferred a writ application, vide W.P.(C)No. 3211 of 2002 which was allowed in part whereby order dated 30.4.2001 rejecting the claim of the petitioner for his reinstatement was set aside and the matter was remitted back to the respondents for its reconsideration.
6. Thereafter the petitioner again filed representation for his reinstatement and also for payment of back wages and the consequential benefits, upon which the respondent No. 6 passed an order dated 28.4.2003 (Annexure 7) stating therein that the petitioner is entitled to reinstatement in service but is not entitled to back wages and consequential benefits. Thereafter the petitioner joined his duty at P.B. Area of M/s. Bharat Coking Coal Limited on 23.6.2003. On being reinstated, the petitioner again made representation before the concerned authority for payment of back wages and the consequential benefits but the respondent did not pass order in this regard.
7. Learned Counsel appearing for the petitioner submits that the petitioner having been acquitted, is entitled to all the back wages and the consequential benefits, still the petitioner has been denied such benefits and therefore, the action of the respondents can easily be termed as arbitrary and mala fide.
8. Leaned Counsel in support of his submission has referred to a decision rendered in a case of Allahabad Jal Sansthan v. Daya Shankar Rai and Anr. reported in 2005(3) PLJR (SC) 34.
9. However, Mr. Anoop Kumar Mehta, learned Counsel appearing on behalf of M/s. Bharat Coking Coal Limited submits that the service of the petitioner was terminated as he was found guilty by the trial court or even by the appellate court for an offence under Section 302 of he Indian Penal Code, though he was acquitted by the Hon'ble Supreme Court and, therefore, the department can never be said to be at fault for keeping the petitioner out of service and in that situation, the respondent is not obliged to pay back wages and the consequential benefits.
10. In support of his submission, learned Counsel has referred to a decision rendered in the case of Union of India and Ors. v. Jaipal Singh : (2004)ILLJ431SC .
11. Having heard learned Counsel appearing for the parties and on perusal of the record, the question falls for consideration as to whether, in the facts and circumstances of the case, the petitioner is entitled to back wages and consequential benefits?
12. Admittedly, while the petitioner was in service, he was convicted for the offence under Section 302 of the Indian Penal Code and was sentenced for life. Thereupon, services of the petitioner was terminated. Consequently, he was kept out of the service until he was allowed to join, consequent upon the acquittal by the Hon'ble Supreme Court. In that situation, the petitioner was out of service never at the behest of the Department rather under the fiction of law department is supposed to keep a person out of the service as soon as he is found guilty in a criminal case.
13. Therefore, it can never be said that the petitioner was kept out of service at the behest of the Department and in that situation, the petitioner is certainly not entitled to back wages and consequential benefits. Similar is the proposition laid down by the Hon'ble Supreme Court in a case, referred to above, in Union of India and Ors. v. Jaipal Singh (supra).
14. So far the case relied upon on behalf of the petitioner is concerned, issue was newer the similar to that of the present case. In that case when the services of the respondent No. 1 had been terminated by the appellant, an industrial dispute was raised before the Labour court and the Labour court having found the order of termination being illegal, set aside the order of termination and directed for reinstatement of the respondent for back wages and when the matter came before the Hon'ble Supreme Court, the respondent was directed to be paid 50% of the back wages. Thus, it is evidently clear that in that case, the respondent was kept out of service after being terminated at the behest of the department and when the order of termination was found illegal, he was reinstated with back wages.
15. So far the instant case is concerned, the petitioner was never kept out of the service at the behest of the department and hence, the case relied upon by the petitioner is never applicable in the facts and circumstances of the case.
16. In the result, I do not find any merit in this writ application.
17. Accordingly, this writ application is dismissed.