Dismissal based on a criminal conviction can be set aside if the conviction is later overturned, but the grant of back wages may be affected by the delay in filing the case.

ORDER :

S.B. Sinha, J.

The respondent herein was dismissed from service by order dated 27-8-1986 on the ground of having been convicted on a criminal charge under Section 323 Indian Penal Code. It is not in dispute that the High Court of Orissa by a judgment and order dated 24-11-1986 allowed the criminal revision preferred by the respondent herein from the judgment of conviction and sentence dated 20-12-1982 passed by the Sessions Judge in ST Case No. 16 of 1982, inter alia, holding that 'no evidence had been led by the prosecution to show as to who were the people who received injury on ground of assaults by any of the accused'. It was opined:

'That evidence being lacking, the conviction of the petitioner cannot be sustained in that view of the matter, I would set aside the conviction of the petitioner under Section 323, Penal Code, 1860 and acquit him of the charges levelled against him.'

2. The respondent filed representations before the appointing authority for his reinstatement, but the same did not receive favourable response. In the meanwhile, it appears, he had been convicted in another case viz. GR Case No. 677 of 1980. The respondent filed a writ petition before the High Court of Orissa after a period of 13 years, that is, in 1999. By reason of the impugned judgment of the High Court, the respondent had been directed to be reinstated with full back wages.

3. Before the High Court as well as before us a contention has been raised on behalf of the appellant that the respondent was not entitled to be reinstated in service having regard to the fact that he had also been convicted in another case.

4. Mr S.B. Upadhyay, the learned counsel appearing for the respondent, stated before us that disciplinary proceedings against the respondent in relation to the said case had been dropped. In this case we are not concerned therewith.

5. In view of the fact that the respondent was dismissed from service only on the ground of having been convicted in a criminal case, indisputably, the High Court is right in setting aside the said order of dismissal as the respondent had been acquitted by the High Court in the revision application filed by him. However, it stands admitted that the respondent filed that case after a period of 13 years and in that view of the matter, we are of the opinion that the High Court committed a manifest error in directing payment of back wages in his favour. We, therefore, quash that part of the order whereby back wages had been granted in favour of the respondent. We make it clear that we have not applied our mind in regard to dropping of another departmental proceedings initiated against the respondent purportedly on the basis of an order and judgment of conviction passed against him in connection with GR Case No. 677 of 1980.

6. If the respondent has not been reinstated pursuant to the High Court judgment, he should be reinstated forthwith. If he has been allowed to join, he shall be allowed back wages only for the period this appeal remained pending before this Court, unless the same either in whole or in part has been paid.

7. After this order was dictated, Ms Indra Sawhney, the learned counsel appearing for the appellants, has placed before us a letter dated 7-7-2004 addressed by the Senior Regional Manager of Food Corporation of India to the respondent, wherein it was stated that the respondent herein has been convicted in another case and in connection therewith also his prayer for reinstatement has been rejected on the ground that he had not obtained a clean acquittal. We are not concerned in this case with the said conviction of the respondent in GR Case No. 677 of 1980.

8. If pursuant to and in furtherance of any other proceeding the respondent cannot be reinstated in service, the appellant may take such step as is permissible in law but the same, of course, would be subject to the condition that the respondent shall be at liberty to question the correctness thereof in an appropriate proceeding before an ap