# Netram v. State of U.P. & Ors

- **Citation:** (2024) 4 ILRA 321
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-03-11
- **Case number:** Writ A No. 6576 of 2023
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/netram-v-state-of-u-p-ors-51798
- **Pages:** 10

## Headnote

A. Service Law - Constitutional Law -
Article 311 - Dismissal from Service -
ReinSt.ment - Pension - Petitioner, a tubewell
operator, dismissed from service vide order
dated 28.12.1983 following conviction in a
criminal case for corruption - Acquitted on
appeal by High Court on 01.02.2023 with
benefit of doubt - Sought reinSt.ment, back
wages, and pension - Held, dismissal lawful
under Article 311(2) proviso (a) based on
conviction, without need for departmental
inquiry - Post-acquittal, reinSt.ment not feasible
as petitioner superannuated in 2016 - No
entitlement to back wages for period out of
service due to conviction, as per Ranchhodji
Chaturji Thakore Vs Superintendent Engineer
and U.O.I. Vs Jaipal Singh - No departmental
proceedings initiated; acquittal not honorable -
Pension and back wages denied due to nonrendering of service - Raj Narain Vs
U.O.I.distinguished,
as
no
departmental
proceedings dropped - Hardship acknowledged
but relief denied to avoid departing from legal
principles. (Para 15-25)

Writ petition dismissed.

List of Cases cited:

## Text

4 All. Netram Vs. State of U.P. & Ors.
321
"... The Committee further resolves that
resolutions
of
the
Committee
dated
17.05.2017, 13.03.2019, 15.07.2019 and
16.12.2019 pertaining to the results of U.P.
Higher
Judicial
Service
Direct
Recruitment, 2016, 2018, 2018 (Part-II),
2018 (Part-III) respectively, stand modified
....."

95. Once no legal infirmity is seen in
the selection of respondent Nos. 3 to 11,
there did not exist any vacancy against
which the petitioner may have been
accommodated. Unfortunate as it appears,
yet the fate met by the petitioner must be
recognised as fair and consistent to the law
declared in Dheeraj Mor (supra).

96. Writ petition lacks merit and is
accordingly dismissed. No order as to
costs.
----------
(2024) 4 ILRA 321
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 11.03.2024

BEFORE

THE HON'BLE J.J. MUNIR, J.

Writ A No. 6576 of 2023

Netram ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Darwari Lal

Counsel for the Respondents:
C.S.C

A. Service Law - Constitutional Law -
Article 311 - Dismissal from Service -
ReinSt.ment - Pension - Petitioner, a tubewell
operator, dismissed from service vide order
dated 28.12.1983 following conviction in a
criminal case for corruption - Acquitted on
appeal by High Court on 01.02.2023 with
benefit of doubt - Sought reinSt.ment, back
wages, and pension - Held, dismissal lawful
under Article 311(2) proviso (a) based on
conviction, without need for departmental
inquiry - Post-acquittal, reinSt.ment not feasible
as petitioner superannuated in 2016 - No
entitlement to back wages for period out of
service due to conviction, as per Ranchhodji
Chaturji Thakore Vs Superintendent Engineer
and U.O.I. Vs Jaipal Singh - No departmental
proceedings initiated; acquittal not honorable -
Pension and back wages denied due to nonrendering of service - Raj Narain Vs
U.O.I.distinguished,
as
no
departmental
proceedings dropped - Hardship acknowledged
but relief denied to avoid departing from legal
principles. (Para 15-25)

Writ petition dismissed.

List of Cases cited:

1.
Ranchhodji
Chaturji
Thakore
Vs
Superintendent Engineer, Gujarat Electricity
Board; (1996) 11 SCC 603

2. U.O.I. Vs Jaipal Singh; (2004) 1 SCC 121

3. Raj Narain Vs U.O.I.; (2019) 5 SCC 809

(Delivered by Hon'ble J.J. Munir, J.)

1. The petitioner, a tubewell operator
in the Tubewell Division of the Department
of Irrigation, Government of Uttar Pradesh,
last posted at Bareilly, seeks redemption of
his lost service and its incidents, to wit,
payment of his emoluments for the period
that he was out of service, pension etc. The
petitioner lost his service in consequence of
conviction in a criminal case on charges of
corruption by the Trial Court. Now that he
has been acquitted in appeal by this Court,
he says that he is entitled to the revocation
of the order of his dismissal from service
dated
28.12.1983
with
consequential
benefits.
322 INDIAN LAW REPORTS ALLAHABAD SERIES

2. The facts, giving rise to this writ
petition, are:

The petitioner was appointed a
tubewell operator in the Tubewell Division
of the Department of Irrigation vide letter
of appointment dated 17.08.1977 issued by
the Executive Engineer, Tubewell Division,
Bareilly. He was posted at Tubewell No.32,
Fatehgang-West. He joined service on
01.09.1977. As the letter of appointment
would show, the petitioner's services were
temporary and carried a condition that the
employment could be determined by either
side, giving a month's notice. While
working at Village Satuia Khass, falling
within the local limits of Police Station
Fatehganj-West,
District
Bareilly,
the
petitioner was accused of accepting a sum
of Rs.30/- in illegal gratification from one
Puran Lal Yaduvanshi on 15.12.1978. The
illegal gratification was said to be accepted
by the petitioner to favour Yaduvanshi in
the matter of not making an irrigation entry
for him in government record. A First
Information Report was registered against
the petitioner on 15.12.1978, giving rise to
Crime No.159 of 1978, under Section 161
IPC and Section 5(2) of the Prevention of
Corruption Act, 1988, Police Station
Fatehganj-West, District Bareilly. After
investigation, the Police charge-sheeted the
petitioner on 21.08.1979. The petitioner
stood his trial on the aforesaid charge
before the Additional District and Sessions
Judge-VII, Bareilly, who convicted and
sentenced him to one year's rigorous
imprisonment and a fine of Rs.100/-.

3. The aforesaid information was
conveyed to the Executive Engineer,
Tubewell Division, U.P., Bareilly by the
Superintendent of Police, Anti-Corruption
Organization, C.I.D., U.P., Lucknow vide
letter dated 16.11.1983. Acting on the said
information,
the
Executive
Engineer,
Tubewell Division, Bareilly, vide his Order
No. 46/83-84 dated 28.12.1983 dismissed
the petitioner from service, consequent
upon
conviction.
No
departmental
proceedings were initiated or held against
the petitioner, where he was found guilty.
The dismissal from service was based,
according to the petitioner, on the judgment
of conviction alone, passed by the Trial
Judge.

4. It also appears, according to the
prosecution case before the Criminal Court,
that the petitioner was caught red-handed
on 15.12.1978 accepting a bribe of Rs.30/-.
He
was
immediately
arrested.
The
petitioner was suspended from service by
an order dated 18.12.1978. During the
period of suspension, the petitioner was
paid half his salary, including allowances
as per standing orders of the State
Government.
This
happened
in
the
interregnum between the petitioner's arrest
and his conviction by the Criminal Court.
What happened after the judgment of
conviction was passed by the Trial Judge,
has already been said and need not be
repeated.

5. The petitioner challenged his
conviction by the Trial Judge before this
Court by preferring an appeal, being
Criminal Appeal No. 2187 of 1983. The
appeal was heard and allowed by this Court
vide judgment and order dated 01.02.2023
and the petitioner was acquitted. The
acquittal, however, was one extending the
benefit of doubt. Post acquittal, the
petitioner lodged an application before the
Executive Engineer, Tubewell Division,
Bareilly and the Superintending Engineer,
Tubewell Central, Lucknow, requesting
that in accordance with Government Orders
on the subject, the respondents may pay
4 All. Netram Vs. State of U.P. & Ors.
323
half salary to the petitioner between
15.12.1978 and 05.09.1983 and full salary
from 05.09.1983 until the petitioner's
superannuation in the year 2016. He also
requested that he may be sanctioned and
paid
his
retirement
pension.
Representations to this effect were made
on 24.02.2023 and 22.03.2023. No action
was taken on any of these applications/
representations.

6. It is the petitioner's case that he
had never committed any offence, but
was implicated falsely on account of
someone's grudge and ill will. Now that
he has been acquitted, it is the petitioner's
case that he is entitled to his salary and
pension. The inaction of the respondents
to restore him to status and the incidents
of it, despite acquittal by the Court of
appeal, a status that was taken away upon
conviction by the Trial Court, is an act on
the respondents' part that is illegal,
arbitrary and unjust. On the foot of these
facts and urging his case as aforesaid, the
petitioner has instituted the present writ
petition.

7. To the extent of the facts and
events
leading
to
the
petitioner's
dismissal from service on account of his
conviction in the criminal case on charges
of corruption by the Trial Judge and his
subsequent acquittal in appeal by this
Court, the parties are ad idem.

8. A short counter affidavit has been
filed by respondent Nos.3, 4 and 5,
followed by a counter affidavit on behalf
of all the respondents. The short counter
affidavit does not say much on the issues
raised and was necessitated because the
petitioner's records had gone untraceable.
This affidavit was filed with the service
records relating to the petitioner, which was
until then untraceable. Later on, these were
traced out and produced before the Court
and duly perused. A counter affidavit was
then filed on behalf of all the respondents,
answering the petitioner's case on the
merits.

9. Apart from facts and issues noticed
hereinbefore, where parties are not at
conflict, it is averred in paragraph No.7 of
the counter affidavit that the petitioner's
acquittal by this Court was not an
honourable one, but extending the benefit
of doubt. In paragraph No.8 of the counter
affidavit, it is pleaded that the total period,
during which the petitioner rendered
service, was one year and three months.
Whatever GPF is due, the same is being
calculated and will be paid to the
petitioner. It is emphasized that the
petitioner having retired seven years prior
to the judgment of acquittal dated
01.02.2023,
there
cannot
be
any
reinstatement for him. It is emphasized
that the petitioner has not done any official
work from 15.12.1978 to 31.01.2016, the
latter being the date of his superannuation.
It is also pleaded that the respondents have
no role in the criminal case launched
against the petitioner. He is solely
responsible for his conviction. It is averred
that it is on account of the petitioner's own
misdeeds that he was arrested and
subsequently convicted, which led to his
dismissal from service. It has been pleaded
that
under
such
circumstances,
the
petitioner is not entitled to salary or
emoluments, as claimed by him in his
representations to the District Magistrate.

10.
Learned Counsel
for
the
petitioner waived his opportunity to file a
rejoinder, consequent upon which the
petition was admitted to hearing and heard
forthwith. Judgment was reserved.
324 INDIAN LAW REPORTS ALLAHABAD SERIES

11. Heard Mr. Darwari Lal, learned
Counsel for the petitioner and Mr. Girijesh
Kumar Tripathi, learned Additional Chief
Standing Counsel appearing on behalf of
the respondents.

12. It is submitted by the learned
Counsel for the petitioner that the petitioner
would be entitled to reinstatement in the
event the judgment of acquittal had been
passed
before
the
date
of
his
superannuation. According to the learned
Counsel for the petitioner, this is so for
reason that the petitioner's dismissal from
service vide order dated 28.12.1983,
ordered by the Executive Engineer, was in
consequence of the judgment of conviction
passed by the learned Trial Judge in the
criminal case. There were no disciplinary
proceedings held against the petitioner,
holding him guilty. Now that the petitioner
has retired from service, the respondents
are obliged to pay him salary for the entire
period that he has remained out of service,
the balance of his salary for the period that
he suffered suspension pending trial, and
also retirement pension, which is the
logical incident of his status as an
employee of the respondents, that must be
deemed to have been restored to him upon
his acquittal in the criminal case, on appeal
by this Court.

13. On the other hand, Mr. Girijesh
Kumar Tripathi, learned Additional Chief
Standing Counsel has submitted that the
petitioner
has
not
been
honourably
acquitted, but granted the benefit of doubt.
If the judgment had been rendered during
the period of time that he was still on the
right side of his age of superannuation, the
respondents would have the option of
instituting disciplinary proceedings against
him on the same charges on which he was
tried, and determining the worth of the
charge by a different standard, that is
applicable to disciplinary proceedings. The
judgment of the Criminal Court would not
foreclose that avenue for the respondents.

14. It is submitted in the alternative
that even if the petitioner be entitled to
reinstatement in service upon the judgment
of acquittal passed by this Court in appeal,
now that the petitioner has retired, it is not
a case where he can be paid his
emoluments for not rendering any work
during the time period between the
judgment of the Trial Court and this Court.
For the same reason, since the petitioner
has not rendered any work, ever since his
suspension from service, way back in the
year
1978
until
the
date
of
his
superannuation in the year 2016, the
petitioner would not be entitled to any
retirement pension.

15. Upon hearing learned Counsel for
the parties, this Court finds that the
petitioner has been placed in circumstances
where hardly any relief can be extended to
him, though, may be, not for much fault of
his. Learned Counsel for both parties have
not brought to this Court's notice the
service rules applicable to the petitioner,
governing a situation like the present one,
to wit, where the employee is convicted in
a criminal case. But, it is safe to assume
that the service rules would follow what
Article 311 provides, if they are to be
regarded constitutionally valid. Article 311
the Constitution provides:

"311. Dismissal, removal or
reduction in rank of of persons employed
in civil capacities under the Union or a
State.-(1) No person who is a member of
a civil service of the Union or an all-India
service or a civil service of a State or holds
a civil post under the Union or a State shall
4 All. Netram Vs. State of U.P. & Ors.
325
be dismissed or removed by an authority
subordinate to that by which he was
appointed.

(2) No such person as aforesaid
shall be dismissed or removed or reduced
in rank except after an inquiry in which he
has been informed of the charges against
him and given a reasonable opportunity of
being heard in respect of those charges:

Provided
that
where
it
is
proposed after such inquiry, to impose
upon him any such penalty, such penalty
may be imposed on the basis of the
evidence adduced during such inquiry and
it shall not be necessary to give such person
any opportunity of making representation
on the penalty proposed:

Provided further that this clause
shall not apply-

(a) where a person is dismissed or
removed or reduced in rank on the ground
of conduct which has led to his conviction
on a criminal charge; or

(b)
where
the
authority
empowered to dismiss or remove a person
or to reduce him in rank is satisfied that for
some reason, to be recorded by that
authority in writing, it is not reasonably
practicable to hold such inquiry; or

(c) where the President or the
Governor, as the case may be, is satisfied
that in the interest of the security of the
State it is not expedient to hold such
inquiry.

(3) If, in respect of any such
person as aforesaid, a question arises
whether it is reasonably practicable to hold
such inquiry as is referred to in clause (2),
the decision thereon of the authority
empowered to dismiss or remove such
person or to reduce him in rank shall be
final."

16. A perusal of Article 311 shows
that the normal rule, governing the
dismissal or removal of a member of a civil
service of the Union or the civil service of a
State, or one who is holding a civil post
under the Union or a State, mandates that
no such dismissal etc. can be ordered
unless the employee concerned has been
informed of the charges against him and
given a reasonable opportunity of hearing.
This rule envisaged under Article 311 (2)
makes it mandatory that before an order of
dismissal etc. can be passed against the
holder of a civil post under the State,
departmental proceedings have to be
convened, that involve holding of a
departmental inquiry in accordance with
procedure prescribed under the relevant
rules applicable. Some salutary principles
about the holding of such inquiry have also
to be followed.

17. Clause (a) of the proviso to
Article 311 (2), however, carves out an
exception in a case where the employee is
dismissed or removed etc. on ground of
conduct, which has led to his conviction on
a criminal charge. Therefore, while it was
lawful
for
the
respondents
to
have
dismissed the petitioner from service upon
his conviction by the Trial Judge on
charges under the Prevention of Corruption
Act,
involving
acceptance
of
illegal
gratification, the order was passed not on
the employer's own opinion about the
charges. It was merely a consequence of
the judgment of conviction passed by the
Trial Judge in the criminal case.

18. Now that the petitioner has been
acquitted in appeal, if indeed, he had not
superannuated, the respondents would be
obliged to reinstate him in service, may be
without paying anything for the period of
time that he was out of employment. They
would still have the option, if they so
elected, considering the case and the
326 INDIAN LAW REPORTS ALLAHABAD SERIES
evidence appearing against the petitioner,
to initiate disciplinary proceedings against
him, holding an inquiry on the relative
charge. If they could indeed have done so,
can now only be a subject matter of
speculation.
In
Ranchhodji
Chaturji
Thakore v. Superintendent Engineer,
Gujarat
Electricity
Board,
Himmatnagar (Gujarat) and another,
(1996) 11 SCC 603, the facts would show
that the petitioner was charged for an
offence of murder punishable under Section
302 read with Section 34 IPC. The Sessions
Judge convicted him and awarded life
imprisonment.
On
the
foot
of
this
judgment, the petitioner, who was a Junior
Clerk, employed with the Electricity Board,
was dismissed from service. The petitioner
challenged his dismissal from service by a
writ petition before the High Court. While
the writ petition was pending, in the appeal
carried by the petitioner from the Trial
Judge's order, he was acquitted. The
learned Single Judge, before whom the writ
petition came up, taking into consideration
the petitioner's acquittal by the High Court
in appeal, directed his reinstatement in
service with continuity, but denied back
wages. The petitioner's Letters Patent
Appeal was dismissed by the Division
Bench. It was in the context of of these
facts that it was held by the Supreme Court
in
Ranchhodji
Chaturji
Thakore
(supra):

"3. 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 to the
situation. The question of back wages
would
be
considered
only
if
the
respondents have taken action by way of
disciplinary proceedings 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 its own backdrop. 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."

19. In Union of India and others v.
Jaipal Singh, (2004) 1 SCC 121, the
employee was charged with murder and
convicted by the Trial Judge for the said
offence by his judgment and order dated
05.03.1997. On appeal, the Division Bench
acquitted him. Despite the acquittal, the
employee was not reinstated in service. He
petitioned the High Court, which allowed
the writ petition, granting reinstatement
with full back wages and consequential
benefits. On appeal by special leave by the
Union of India from the judgment of the
High Court, the order was modified to
provide that the employee would be
entitled to back wages from the date of
acquittal, though the period for which the
employee remained out of service, will be
counted towards service without any break.
The reinstatement was not disturbed. What
was, therefore, denied by the Supreme
Court were wages for the period that the
employee remained out of service on
4 All. Netram Vs. State of U.P. & Ors.
327
account of the judgment of conviction
passed by the Trial Court. In Jaipal Singh
(supra), it was observed by the Supreme
Court:

"4. On a careful consideration of
the matter and the materials on record,
including the judgment and orders brought
to our notice, we are of the view that it is
well accepted that an order rejecting a
special leave petition at the threshold
without detailed reasons therefor does not
constitute any declaration of law by this
Court or constitute a binding precedent. Per
contra, the decision relied upon by the
appellant is one on merits and for reasons
specifically recorded therefor it operates as
a binding precedent as well. On going
through the same, we are in respectful
agreement
with
the
view
taken
in
Ranchhodji [(1996) 11 SCC 603 : 1997
SCC (L&S) 491] . If prosecution, which
ultimately resulted in acquittal of the
person concerned was at the behest of or by
the department itself, perhaps different
considerations may arise. On the other
hand, if as a citizen the employee or a
public servant got involved in a criminal
case and if after initial conviction by the
trial Court, he gets acquittal on appeal
subsequently, the department cannot in any
manner be found fault with for having kept
him out of service, since the law obliges a
person convicted of an offence to be so
kept out and not to be retained in service.
Consequently, the reasons given in the
decision relied upon, for the appellants are
not only convincing but are in consonance
with reasonableness as well. Though
exception taken to that part of the order
directing reinstatement cannot be sustained
and the respondent has to be reinstated in
service, for the reason that the earlier
discharge was on account of those criminal
proceedings and conviction only, the
appellants are well within their rights to
deny back wages to the respondent for the
period he was not in service. The appellants
cannot be made liable to pay for the period
for which they could not avail of the
services of the respondent. The High Court,
in our view, committed a grave error, in
allowing
back
wages
also,
without
adverting to all such relevant aspects and
considerations. Consequently, the order of
the High Court insofar as it directed
payment of back wages is liable to be and
is hereby set aside."

20. In Raj Narain v. Union of India
and others, (2019) 5 SCC 809, a much
later decision of their Lordships of the
Supreme Court, the facts show that the
employee was working as a Sorting
Assistant in the Railway Mall Service at
Mughalsarai.
He
was
placed
under
suspension in contemplation of disciplinary
proceedings on allegations of forgery,
which led to payment of high-value money
orders. A First Information Report was
lodged against the employee. The order of
suspension was revoked on 21.10.1987, in
consequence of which he worked till
28.02.1997. However, upon conviction by
the Trial Judge in the criminal case, he was
dismissed from service on 28.02.1997. On
appeal, the employee succeeded and a
judgment of acquittal was passed in his
favour.
The
appellant
claimed
reinstatement,
which
the
employers
refused. The order refusing reinstatement
said that as he was dismissed from service
more than six years ago, he could not be
reinstated.
The
order
declining
reinstatement was challenged before the
Central
Administrative
Tribunal.
The
Tribunal allowed the Original Application
and directed the employee's reinstatement
with benefit of seniority and notional
fixation of pay together with increments
328 INDIAN LAW REPORTS ALLAHABAD SERIES
from the date of his dismissal till
reinstatement. The Tribunal, nevertheless,
denied back wages for the period that the
employee was not in service. The employee
was reinstated in compliance with the
Tribunal's order. The employee's claim for
full emoluments during the period of
suspension was also declined by the
employers. The employee preferred a writ
petition against the Tribunal's judgment, by
which he was denied back wages. The High
Court partly allowed the writ petition,
holding him entitled to full back wages
from the date of his acquittal until his
reinstatement. The employee then carried
the matter in appeal to the Supreme Court
by special leave to the extent that he was
denied back wages for the period between
his
dismissal
from
service
and
the
judgment of acquittal in his favour. Their
Lordships considered both Ranchhodji
Chaturji Thakore and Jaipal Singh, and,
explained
the
distinction
between
a
criminal case initiated by the employers
and one instituted by the Police, without
the employers' involvement and its impact
on the claim for back wages in the event of
acquittal.

21. In Raj Narain (supra) one feature
that was noticed by the Court was the fact
that departmental proceedings had been
initiated in relation to conduct that had led
to the criminal prosecution with the
employee being placed under suspension in
contemplation of disciplinary proceedings,
but the disciplinary proceedings were
dropped on 21.03.1983, which was much
before his conviction by the Criminal Court
on 28.02.1997, when he was also dismissed
from service. The employee was held
entitled to backwages from the date of his
acquittal as directed by the High Court and
also full salary from the date of his
suspension to the date of his reinstatement,
because the disciplinary proceedings were
dropped. However, back wages were not
granted for the period that the employee
remained out of employment on account of
the order of dismissal following conviction
by the Trial Judge.

22. In Raj Narain, considering the
various facts and how the law would bear
upon it, it was held:

"5. This Court in Ranchhodji
Chaturji Thakore [Ranchhodji Chaturji
Thakore v. Gujarat Electricity Board,
(1996) 11 SCC 603 : 1997 SCC (L&S)
491] considered the case of an employee
who sought back wages for the period he
was kept out of duty during the pendency
of a criminal case for his involvement in an
offence under Section 302 IPC. The claim
of the petitioner therein was that he was
entitled to full wages on his acquittal by the
criminal court. This Court rejected the said
submission by holding that the question of
payment of back wages would arise only in
case of termination of service, pursuant to
findings
recorded
in
a
departmental
enquiry. In the event of the dismissal order
being set aside by the Court, the delinquent
employee would be entitled to claim back
wages as he was unlawfully kept away
from duty by the employer. This Court was
of the opinion that an employee against
whom criminal proceedings are initiated
would stand on a different footing in
comparison to an employee facing a
departmental
enquiry.
The
employee
involved in a crime has disabled himself
from rendering his services on account of
his
incarceration
in
jail.
Subsequent
acquittal by an appellate court would not
entitle him to claim back wages.

6. The decision of Ranchhodji
Chaturji Thakore [Ranchhodji Chaturji
Thakore v. Gujarat Electricity Board,
4 All. Netram Vs. State of U.P. & Ors.
329
(1996) 11 SCC 603 : 1997 SCC (L&S)
491] was followed by this Court in Union
of India v. Jaipal Singh [Union of India v.
Jaipal Singh, (2004) 1 SCC 121 : 2004
SCC (L&S) 12] to refuse back wages to an
employee who was initially convicted for
an offence under Section 302 read with
Section 34 IPC and later acquitted by the
High Court in a criminal appeal. While
refusing to grant relief to the petitioner
therein, this Court held that subsequent
acquittal would not entitle an employee to
seek back wages. However, this Court was
of the opinion that if the prosecution is
launched at the behest of the department
and the employee is acquitted, different
considerations may arise. The learned
counsel for the appellant endeavoured to
distinguish the prosecution launched by the
police for involvement of an employee in a
criminal case and the criminal proceedings
initiated at the behest of the employer. The
observation made in the judgment in Union
of India v. Jaipal Singh [Union of India v.
Jaipal Singh, (2004) 1 SCC 121 : 2004
SCC (L&S) 12] has to be understood in a
manner in which the department would
become liable for back wages in the event
of a finding that the initiation of the
criminal proceedings was mala fide or with
vexatious intent. In all other cases, we do
not see any difference between initiation of
the criminal proceedings by the department
vis-à-vis a criminal case lodged by the
police. For example, if an employee is
involved in embezzlement of funds or is
found indulging in demand and acceptance
of illegal gratification, the employer cannot
be mulcted with full back wages on the
acquittal of the person by a criminal court,
unless it is found that the prosecution is
malicious.

7. The point that remains to be
considered is whether the appellant is
entitled to payment of full wages between
1979 and 1987. The appellant was placed
under suspension on 23-10-1979 and his
suspension was revoked on 21-10-1987. An
interesting development took place during
the interregnum by which the disciplinary
proceedings were dropped on 21-3-1983. It
is clear from the record that the appellant
was
the
one
who
was
seeking
postponement of the departmental enquiry
in view of the pendency of criminal case.
The
order
of
suspension
was
in
contemplation of disciplinary proceedings.
By virtue of the disciplinary proceedings
being dropped, the appellant becomes
entitled to claim full salary for the period
from the date of his suspension till the date
of closure of the departmental enquiry.
Thereafter, the respondents took four years
to reinstate him by revoking his suspension.
The order of suspension dated 23-10-1979
came to an end on 21-3-1983 which is the
date on which disciplinary proceedings
were dropped. The appellant ought to have
been reinstated immediately thereafter
unless a fresh order was passed, placing
him under suspension during the pendency
of the criminal trial which did not happen.
Ultimately, the appellant was reinstated by
an order dated 21-10-1987 by revocation of
the
order
of
suspension.
Though,
technically, the learned Additional Solicitor
General is right in submitting that the
impugned judgment does not even refer to
the IA, we are not inclined to remit the
matter to the High Court at this stage for
fresh consideration of this point. We hold
that the appellant is entitled for full wages
from 23-10-1979 to 21-10-1987 after
adjustment of the amounts already paid
towards subsistence allowance."

23. This is a case where no
departmental
proceedings
were
ever
initiated and the dismissal order was
founded entirely on the judgment of the
330 INDIAN LAW REPORTS ALLAHABAD SERIES
Criminal Court. We have remarked earlier
that if the judgment of acquittal in appeal
had
come
before
the
petitioner's
superannuation, he would surely be entitled
to reinstatement from the date of the
judgment in appeal. He would then also be
entitled to continuity of service, though not
for the back wages before the date of the
judgment of acquittal.

24. The facts here are hard and we do
not want to succumb to the temptation of
doing a fact-based justice, departing from
principle. It is indeed hard for the petitioner
that the judgment of acquittal came too
late. If it had come in time, not only the
petitioner
would
be
entitled
to
reinstatement, but reckoning his continuity
of service, also to his pension. That cannot
be done in this case, because the petitioner
can no more be reinstated in service. If that
cannot be done, no other consequence can
attach. This is a case where the petitioner
has hardly worked for a year and three
months in a temporary capacity, or as the
respondents say, on probation, though we
did not find any letter showing the
petitioner to be an appointee on probation.
The letter of appointment shows him to be
a temporary employee.

25. Be that as it may, since the
petitioner was never reinstated in service
and never worked, except the one year and
three months before the fateful day, when
he was caught accepting a bribe, a charge
of which he has been later on acquitted in
appeal, in the considered opinion of this
Court, no relief can be granted to the
petitioner. It is said that hard facts make
bad law, but we think that this should not
be permitted to happen.

26. In the result, this petition fails and
is dismissed.

27. Costs easy.
----------
(2024) 4 ILRA 330
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.01.2023

BEFORE

THE HON'BLE AJIT KUMAR, J.

Writ A No. 11279 of 2023

Moulabi Ram ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Samarath Singh, Ramesh Chandra
Tiwari, Sri V.K. Singh (Sr. Advocate)

Counsel for the Respondents:
C.S.C., Sri Naresh Chandra Tripathi, Suchita
Tripathi, Sri Trilok Nath Dubey

A. Service Law - U.P. Secondary Education
Services Selection Board Rules, 1998 -
Rule 11 - Intermediate Education Act, 1921 -
Regulations 55 to 61 - Transfer of Principal -
Petitioner Moulabi Ram challenged transfer
order dated 30.06.2023 of respondent Ramyash
as Principal of Goverdhan Inter College, Jaunpur
- Requisition for direct recruitment sent on
16.04.2021 - Held, requisition sent by Manager
on 16.04.2021 valid despite being offline, as
procedural
irregularity
curable
and
no
substantial injustice caused - Government Order
dated 13.08.2021 prohibits transfer against
requisitioned vacancy - Requisition predates
transfer order, rendering it unsustainable -
Equity favors Moulabi Ram, an officiating
Principal, over Ramyash, a settled Principal -
Tata Chemical Ltd. Vs Commissioner of
Customs and Krishna Rai Vs Banaras Hindu
University relied upon for procedural compliance
- Transfer order quashed, Moulabi Ram's writ
petition
allowed,
Ramyash's
writ
petition
dismissed. (Para 12-20)

Writ petition of Moulabi Ram allowed; writ
petition
of
Ramyash
dismissed;
writ