# Raj Narain v. Union of India & Ors

- **Citation:** (2015) 3 ILRA 1257
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2015-08-25
- **Case number:** THE HON'BLE SHASHI KANT. J. C.M.W.P. No. 12239 of 2003
- **Bench:** Arun Tandon
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/raj-narain-v-union-of-india-ors-43382
- **Pages:** 5

## Headnote

Constitution
of
India,
Art.-226-Back
wages-dismissal on criminal prosecutionFIR lodged by employer-if convictionaltered in appeal or fair acquittal-heldentitled for full back wages for the period
not allowed to work-the employer has to
face the consequences-to the extent the
order by Tribunal stand modified.
Held: Para-15
According
to
the
petitioner,
the
observation made in the judgment that if
the
criminal
proceeding
ultimately
resulted in acquittal of the employee
concerned where included at the behest
1258
 INDIAN LAW REPORTS ALLAHABAD SERIES
of
the
employer,
perhaps
different
considerations may arise clearly applies
to the facts of the present case in as
much as the petitioner was required to
undergo criminal trial in pursuance to a
first information report by an employer.
Once the employee has been acquitted of
the
criminal
offence,
the
employer
should
bear
the
consequences
and
petitioner must be paid full salary for the
period he was kept out of employment.
Case Law discussed:
2014 (4) AWC 3643 (SC); JT 2015 (3) SC 344;
(2004) 1 SCC 121; (1996) 11 SCC 603.

## Text

3 All] Raj Narain Vs. Union of India & Ors.
1257
torture by police taking recourse to
violence, then, in the facts of the case, the
request that has been made by the petitioner
for awarding him compensation being
victim of custodial violence has to be
accepted, inasmuch as, petitioner no.1 has
been forced to suffer lot of physical and
mental agony as is reflected from the
photograph at page 46 of paper book and
for number of days he has been forced to
spent
in
hospital.
Awarding
of
compensation is demand of the situation,
looking to the agony that a young man has
to undergo, and the fact that his career to
join I.T.B.P. has been withered away.
Treatment meted to petitioner is purely
inhuman, that has inflicted immense mental
pain leading to sense of insecurity and
helplessness in him. In this background, we
proceed to award compensation of Rs.5 lacs
to petitioner no.1 to be paid by the State
Government within two months from the
date of receipt of certified copy of this
order. In case petitioners have a strong
feeling that they are entitled for much more
quantum of damages, they can always
invoke common law remedy for additional
compensation.
24. Coupled with this, in the present
case, once such is the factual situation that
is so emerging that prima-facie there has
been custodial violence, then FIR ought to
have been lodged and investigation ought
to have been carried out. Here, we find
that despite application under Section
156(3)
Cr.P.C.
being
moved
and
Superintendent of Police, Mau being
aware of the entire situation, till date, FIR
has not been lodged and no action has
been taken by undertaking free, fair and
impartial investigation, in view of this, we
proceed
to
pass
an
order
asking
Superintendent
of
Police,
Mau
to
forthwith ensure that FIR is lodged
against erring police incumbents as per
the law laid down by Apex Court, in the
case of Lalita Kumari vs. Government of
U.P. 2014 (2) SCC 1 and the investigation
in question is carried out under his
supervision by an officer not below the
rank of Circle Officer, who will proceed
to carry out investigation in free, fair and
transparent manner.
25.

With
these
observations/directions, writ petition is
allowed.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 25.08.2015
BEFORE
THE HON'BLE ARUN TANDON, J.
THE HON'BLE SHASHI KANT. J.
C.M.W.P. No. 12239 of 2003
Raj Narain
 ...Petitioner
Versus
Union of India & Ors.
...Respondents
Counsel for the Petitioner:
Sri W.H. Khan, Sri J.H. Khan
Counsel for the Respondents:
S.S.C., B.N. Singh, Sri H.C. Dubey
Constitution
of
India,
Art.-226-Back
wages-dismissal on criminal prosecutionFIR lodged by employer-if convictionaltered in appeal or fair acquittal-heldentitled for full back wages for the period
not allowed to work-the employer has to
face the consequences-to the extent the
order by Tribunal stand modified.
Held: Para-15
According
to
the
petitioner,
the
observation made in the judgment that if
the
criminal
proceeding
ultimately
resulted in acquittal of the employee
concerned where included at the behest
1258
 INDIAN LAW REPORTS ALLAHABAD SERIES
of
the
employer,
perhaps
different
considerations may arise clearly applies
to the facts of the present case in as
much as the petitioner was required to
undergo criminal trial in pursuance to a
first information report by an employer.
Once the employee has been acquitted of
the
criminal
offence,
the
employer
should
bear
the
consequences
and
petitioner must be paid full salary for the
period he was kept out of employment.
Case Law discussed:
2014 (4) AWC 3643 (SC); JT 2015 (3) SC 344;
(2004) 1 SCC 121; (1996) 11 SCC 603.
(Delivered by Hon'ble Arun Tandon, J.)
1.
Heard learned counsel for the
parties and perused the record.
2. The Petitioner before this Court was
employed as Sorting Assistant in Railway
Mail Service. He was suspected to be
involved in racket of payment of bogus heavy
value money orders. An FIR was lodged. The
criminal trial with reference to the first
information report resulted in conviction of
the petitioner for offences under Sections
419,420, 467, as per order of the Additional
Chief Judicial Magistrate, Varanasi dated
29.1.1997 passed in Criminal Case No. 509 of
1996. Because of the conviction of the
petitioner in the criminal case under Sections
419, 420, 467 I.P.C., the railways had no other
option but to dismiss the petitioner from the
service vide order dated 28.2.1997 in exercise
of power under Rule-9(1) of Central Civil
Services (Classification, Control and Appeal)
Rules, 1965.
3. The petitioner, preferred an
appeal against the order of conviction
being Appeal No. 14 of 1997, which was
finally allowed under judgment and order
of the District and Sessions Judge,
Varanasi dated 31.8.2001. The petitioner
was not reinstated, he filed Original
Application No. 907 of 2002 before the
Central Administrative Tribunal. The
original application was allowed vide
order dated 11.12.2002 and in pursuance
thereof he was reinstated.
4. There is no dispute with regard to
the payment of salary and other allowances
to the petitioner subsequent to reinstatement
in terms of the order of the Tribunal referred
to above on behalf of the petitioneremployee. He is however, not satisfied with
the part of the order of the Tribunal
whereunder the Tribunal has held that the
petitioner will not be entitled to back wages
i.e. for the period from the date of dismissal
till the date of reinstatement. Challenging
the order so passed, the petitioner has
approached this Court.
5.
On behalf of the petitioner, it is
contended that once it has been found that
the criminal offence as alleged against the
petitioner was not made out and he has been
acquitted by the criminal court, he becomes
entitled for full salary for the period, he was
kept out of employment. It is submitted that
the FIR was lodged by the employer and the
entire proceeding had been taken at the
behest of the employer.
6.
Counsel for the petitioner in
support of his plea has placed reliance
upon the judgment of the Apex Court in
the case of Tapash Kumar Paul Vs. BSNL
and Anr., reported in 2014 (4) AWC 3643
(SC), paragraphs-10, 11 and 12. He has
also placed reliance upon the judgment of
the Apex Court in the case of State of
U.P. Vs. Charan Singh, reported in JT
2015(3)SC 344, paragraph-16 as well as
paragraph 18 of the said judgment. It is
lastly stated that the Apex Court itself in
the case of Union of India and others Vs.
3 All] Raj Narain Vs. Union of India & Ors.
1259
Jaipal Singh, reported in (2004) 1 SCC
121, has explained that if the prosecution
which ultimately resulted in acquittal of
the employee concerned was at the behest
of or by the department itself, perhaps
different considerations may arise. He
submits in the facts of the case the
prosecution had been initiated at the
behest of the employer and therefore, the
judgment in the case of Ranchhodji
Chaturji Thakore Vs. Superintendent
Engineer,
Gujarat
Electricity
Board,
Himmatnagar (Gujarat) and Another,
reported in (1996) 11 SCC 603 will not
apply.
7.
Counsel for the respondents
however, with reference to the judgment
of the Apex Court
in the case of
Rannchhodji Chaturji Thakore (supra)
submits that the Supreme Court had made
a distinction in the matter of payment of
back wages in respect of employees who
are proceeded departmentally and then
dismissed from service vis a vis the
employees, who are dismissed from
service after convicting by the competent
court of law. The Supreme Court has held
that the employer has no other option, but
to dismiss an employee once he is held
guilty of criminal offence. In these
circumstances, the employer could not
obtaine the services of the employee
concerned because of the law applicable,
therefore, question of payment of back
wages would not arise. He further submits
that the judgment in the case of
Rannchhodji Chaturji Thakore (supra) has
been approved by the Supreme Court in
the case of Union of India and others Vs.
Jaipal Singh (supra).
8. We have heard learned counsel
for the parties and have examined the
records of the case.
9. There is hardly any dispute on the
facts between the parties.
10.
So far as the judgments relied
upon by the counsel for the petitioner in the
cases of Union of India and others Vs.
Jaipal Singh (supra), Tapash Kumar Paul
Vs. BSNL and Anr (supra) and State of
U.P. Vs. Charan Singh (supra), are
concerned, we find that they deal with a
dispute pertaining to the dismissal of an
employee after departmental enquiry and
the Apex Court in the said judgments has
opined that unless there are exceptional
circumstances, the normal award by
Industrial
Tribunal
should
be
of
reinstatement with back wages once the
dismissal is found to be unjustified.
11.
But these judgments in our
opinion, will have no application in the case
at hand in as much as the Apex Court in the
case of Rannchhodji Chaturji Thakore
(supra) has clearly made a distinction in the
matter of dismissal of an employee because
of conviction for a criminal offence vis a vis
dismissal after departmental enquiry.
12.
The Apex Court has held that
where dismissal is a result of a conviction in
a criminal case, then the employer is duty
bound under law to dismiss the employee
concerned and in that circumstance, the
employer is denied the service of the
employee concerned, therefore, the question
of back wages could not be agitated. It has
been explained that 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.
13. The facts of the present case are
more alein to the facts in the case of
Rannchhodji Chaturji Thakore (supra).
1260
 INDIAN LAW REPORTS ALLAHABAD SERIES
14. This takes the Court to the
judgment in the case of Jaipal Singh
(supra), the Apex Court has held that if
conviction of the employee concerned
was at the behest of employer different
consideration may arise.
15.
According to the petitioner, the
observation made in the judgment that if
the criminal proceeding ultimately resulted
in acquittal of the employee concerned
where included at the behest of the
employer, perhaps different considerations
may arise clearly applies to the facts of the
present case in as much as the petitioner
was required to undergo criminal trial in
pursuance to a first information report by
an employer. Once the employee has been
acquitted of the criminal offence, the
employer should bear the consequences
and petitioner must be paid full salary for
the period he was kept out of employment.
16. Sri Ashok Mehta, counsel for the
employer submits that the Apex Court
while
making
the
observation
that
different consideration may prevail, had
not laid down any such proposition that
the employee would be entitled to full
salary, if he is acquitted in the appeal in
all cases where FIR was registered by the
employer.
17.

Having
considered
the
judgments of the Apex Court in the case
of Rannchhodji Chaturji Thakore (supra)
and Union of India and others Vs. Jaipal
Singh (supra), we find that although there
is an observation passed by the Apex
Court that different considerations may
result if the criminal case was instituted at
the behest of the employer but what will
be these considerations have not been
spelled out in the said judgment of Jaipal
Singh (supra).
18. We may record that unless and
until it is established that the FIR was
registered
for
malafide
intentions
deliberate motive to keep the employee
out of employment, there cannot be any
difference in the considerations which
follow in the matter of dismissal because
of conviction in a criminal trial and
ultimate acquittal thereof vis a vis a case
where the FIR was registered by an
independent person. The observations of
the Supreme Court in respect of different
considerations need be examined, in light
of the facts leading to the FIR.
19. In the facts of this case, there is
hardly any pleading of malafide against
the employer in the matter of lodging of
the FIR.
20. In our opinion, general principle
as laid down in the case of Rannchhodji
Chaturji
Thakore
(supra),
that
the
employer has no other option but to
dismiss the employee, if he is held guilty
in criminal offence, because of which the
employer is deprived of the service of the
employer in view of statutory provision
has to be applied in this case. The
employer cannot be directed to pay back
wages for the period, the employer was
out of employment.
21. But we are conscious of the fact
that the Apex Court in the case of Union
of India and others Vs. Jaipal Singh
(supra) has laid down that the the
employee would be entitled to his back
wages from the date he is acquitted of the
criminal charges.
22. In view of the aforesaid, we hold
that the petitioner would be entitled to his
full back wages from the date of the order
of the acquittal i.e. 30.8.2001. Therefore,
the order of the Director in so far as it
3 All] Bandhu Prasad Vs. State of U.P. & Ors.
1261
refuses back wages for the period between
30.8.2001 till date of reinstatement cannot
be legal and is hereby quashed. The order
of the Tribunal dated 11.12.2002 to that
extent is set aside.
23. It is held that the petitioner
would be entitled to back wages for the
period commencing from 30.8.2001, till
the date of reinstatement with all
consequentil benefits The amount in that
regard may be computed within two
months and be paid to the petitioner
within a further period of two months.
24. The writ petition is disposed of
accordingly.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 13.07.2015
BEFORE
THE HON'BLE VIVEK KUMAR BIRLA, J.
C.M.W.P. No. 14756 of 2009
Bandhu Prasad
 ...Petitioner
Versus
State of U.P. & Ors.
...Respondents
Counsel for the Petitioner:
Sri Nasiruddin Warsi, Sri R.P.L. Srivastava,
Sri S.C. Srivastava
Counsel for the Respondents:
C.S.C.
Civil Services Regulation 378 (ii)-qualifying
period of Service-for pension purpose-work
charge employes-whether period of work
charge can be considered for pension after
regularization?-held-'No'-in view of Division
Bench case of Jai Prakash as well as of Apex
Court-in Punjab State Electricity Vs. Narata
Singh-in absence of any rule or policyfunctioning of work charge can not be
taken into consideration-petition dismissed.
Held: Para-13
In view of the aforesaid decision of the
Division Bench in the case of Jai Prakash
(Supra) wherein it has been categorically
held that the work- charge employees
are not entitled to the benefit which are
permissible to regular employee under
the Rules, which was further affirmed by
Hon'ble the Apex Court holding that
there is nothing on record to suggest any
rule or scheme framed by the State to
count the work charge period for the
purpose in the regular establishment. In
absence of any such Rules or Scheme the
Hon'ble Apex Court did not find any
merit to interfere with the impugned
judgement
and
the
Special
Leave
Petition was dismissed. In the present
case also there are no Rules or Scheme
providing for grant of pension in work
charge establishment.
Case Law discussed:
Writ-A No. 17150 of 2015; Special Appeal
Defective No. 264 of 2013; Special Leave
Petition-C No. 22271 of 2013; (2010) 4 SCC
317; (ADJ) 382 (DB).
(Delivered by Hon'ble Vivek Kumar
Birla, J.)
1. Heard learned counsel for the
petitioner and learned Standing Counsel.
2. The present petition has been filed
for order or direction in the nature of
mandamus directing the respondents to
release the pension of the petitioner due
from the date of his retirement forthwith.
3. According to the petition, the
petitioner was initially appointed on the
post Beldar on 1.12.1969. Thereafter he
was appointed as Telephone Operator
from 1.10.1982 and worked till 1.7.1996.
On 1.7.1996 he was promoted to the post
of Seench Pal and worked till 31.1.2006
and he has thus completed 37 years of
continue work without any break