Non -  Reportable    

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL No. 3339 of 2019 [ Arising out of S.L.P. (Civil) No. 100 of 2016 ]

RAJ NARAIN    ....  Appellant

Versus

UNION OF INDIA & ORS.      …. Respondents

J U D G M E N T

L. NAGESWARA RAO, J.

Leave granted.  

1. The  Appellant  was  placed  under  suspension  on

23.10.1979 while he was working as  Sorting Assistant in

Railway  Mail  Service  (RMS)  at  Mughalsarai,  in

contemplation  of  disciplinary  proceedings  on  the

allegations  of  involvement  in  forged  payments  of  high

value  money  orders.    An  FIR  was  lodged  against  the

Appellant at Mughalsarai Police Station and the case was

registered as Crime No.358 of 1979 under Section 409/420

IPC.  The order of suspension was revoked on 21.10.1987

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pursuant  to  which  he  joined  duty  and  worked  till

28.02.1997, when he was dismissed from service in view of

his conviction under Section 409, 467 and 420 IPC.  He was

sentenced to imprisonment for three years.  The Appellant,

thereafter,  filed  an  appeal  against  his  conviction.   The

Criminal Appeal filed by the Appellant was allowed and he

was acquitted of the charges for  offences under Section

409, 420 and 467 IPC.  

2. The request of the Appellant for reinstatement after

acquittal was refused on 13.06.2002.  It was mentioned in

the Memo dated 13.06.2002 that the Appellant could be

reinstated as he was already dismissed from service more

than  six  years  ago.   The  order  of  dismissal  dated

28.02.1997 and the order of refusal to reinstate in service

dated 13.06.2002 were challenged by the Appellant before

the Tribunal.  The Tribunal allowed the original application

and directed the reinstatement of the Appellant by holding

that he shall be entitled for seniority and notional fixation

of pay with increments from the date of his dismissal till

his  reinstatement.  However,  the  Tribunal  held  that  the

Appellant shall not be entitled for any back wages for the

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period during which he was not in service.  Pursuant to the

order  of  the  Tribunal,  the  Appellant  was  reinstated  on

20.01.2003.   By  an  order  dated  01.05.2003,  the  Senior

Superintendent  of  RMS,  Allahabad  rejected  the

representation of the Appellant for full pay and allowances

for  the  period  of  the  suspension  i.e. 23.10.1979  to

11.11.1987.   The  Writ  Petition  filed  by  the  Appellant

against  the  order  of  the  Tribunal  by  which  he  was  not

granted back wages was partly allowed by the High Court.

The High Court held that the Appellant shall be entitled to

full back wages from the date of the order of his acquittal

i.e. 31.08.2001  till  the  date  of  his  reinstatement  i.e.

20.01.2003.   The  Appellant  is  before  us  assailing  the

legality and validity of the judgment of the High Court by

which the payment of back wages was restricted only to

the period between the date of his acquittal and the date

of his reinstatement.   

3. The  learned  counsel  appearing  for  the  Petitioner

relied  upon  the  judgment  of  this  Court  in  Ranchhodji

Chaturji  Thakore  v.  Superintendent  Engineer,

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Gujarat  Electricity  Board  and  Anr.1 and  Union  of

India and Others v.  Jaipal  Singh2 to  contend that  in

case the criminal proceedings are initiated at the behest of

the employer, and the employee is acquitted, he would be

entitled to claim full wages for the period he was kept out

of duty during the pendency of the criminal proceedings.

He  also  submitted  that  the  Appellant  is  entitled  to  full

salary for the period from 1979 to 1987.   He submitted

that  the  Appellant  has  filed  an  Interlocutory  Application

seeking the said  relief  in  the High Court  which was not

considered.   

4. Ms.  Madhavi  Divan,  learned  Additional  Solicitor

General  contended  that  the  Appellant  is  not  entitled  to

back wages.  She submitted that there was no difference

between a criminal  case initiated at the instance of the

employer and one by the police.  She also submitted that

the Appellant was not entitled to any relief of payment of

full back wages between 1979 to 1987 as the I.A. filed by

the  Appellant  does  not  find  mention  in  the  impugned

judgment of the High Court.  

1 1996 (11) SCC 603 2  2004 (1) SCC 121     

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5. This Court in  Ranchhodji Chaturji Thakore (supra)

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  inquiry.  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.   

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6. The  decision  of  Ranchhodji  Chaturji  Thakore

(supra) was followed by this Court in Union of India and

Others v. Jaipal Singh (supra) 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  endeavored  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 and Others v. Jaipal Singh

(supra)  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

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other  cases,  we  do  not  see  any  difference  between

initiation of  the criminal  proceedings by the department

vis-a-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 21.03.1983.  It is clear from

the record that the Appellant was the one who was seeking

postponement of the departmental inquiry 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

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the date of his suspension till  the date of closure of the

departmental  inquiry.   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  21.03.1983  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 I.A., 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.     

8. For  the  reasons  mentioned  above,  we  approve  the

judgment of the High Court by holding that the Appellant

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shall  be  entitled  for  back  wages  only  from the  date  of

acquittal on 31.08.2001, till the date of his reinstatement

on 20.01.2003.  Further, the Appellant shall be entitled to

full salary from 23.10.1979 to 21.10.1987.

9. Accordingly, the appeal is disposed of.   

                          .................................J.

             [L. NAGESWARA RAO]

 ..................................J.               [M.R.SHAH]

New Delhi, April 01,  2019.   

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