Rule 2044 of the Railway Establishment Code does not apply to cases where the dismissal of a railway servant was based on a criminal conviction that was subsequently overturned on appeal.

( 1 ) THIS petition under Article 226 relates to the petitioner's claim for pay and allowances for the period between the 29th of July, 1959 and the 4th of May, 1961 and arises from the following circumstances: The petitioner was a clerk in the office of Opposite Patty No. 1, the Chief Commercial Superintendent, Eastern Railway. On 1/11/1956, the petitioner was arrested by the Police in connection with a Postal fraud case and was suspended with effect from 4/5/1956, pending trial. The petitioner was tried, simultaneously, by the Sessions Judge, City Sessions Court, Calcutta and the Sessions Judge, Bhagalpur, on different charges, and was convicted. As a result of this conviction, the Petitioner was dismissed from his service on 29/7/1959 but he was, later, acquitted, on appeal, by the High Courts of Calcutta and Patna, respectively. Following this acquittal, the order of dismissal was set aside by the Opposite Party No. 1 by his letter of the 25th August 1961 and the Petitioner was reinstated in service with effect from 27/8/1961, but the petitioner has not been allowed his full pay and allowances for the period intervening the date of his dismissal and 'the date of his acquittal' by an order made by the Opposite Party No. 1, and it has been directed by that order that the Petitioner 'shall be deemed to have continued to be under suspension during that period. It would be useful to reproduce that impugned order, which is at annexure A to the petition:"sri Tarini Kumar, Clerk C. C. S. 's office (Claims) P. F. A. /c No. 337282 who was dismissed from service with effect from 29-7-59 on account of his conviction on a criminal charge has been acquitted by the appellate Court and accordingly he has been re-instated on 28-8-61 vide office Order No. 129/61 dated 26-8-61. Upon a careful consideration of his case it has now been decided by C. C. S. to regularise the intervening period of his absence from 29-7-59 to 27-8-61 as under: Period From To Details How regularised (a) 29-7-59 4-5-61 From the date of dismissal to date of acquittal. He is deemed to have been continued under suspension upto the date of acquittal i. e. , 4-5-61. He should be paid the subsistence allowance at the rate he was drawing on the date or dismissal. (b) 5-5-61 27-8-81 From the date of acquittal to the date of reinstatement. He should be treated as on duty and full pay and allowance should be paid. "

( 2 ) IT is against para (a) of the foregoing order that the instant petition is directed. It should be pointed out in this context that the reference in that paragraph to 4-5-61 as the date of 'acquittal' is wrong inasmuch as the judgments of the Calcutta and the Patna High Courts in the two cases, by which the petitioner was acquitted bear the dates--the 4th August 1959 and the 29th July, 1960. This discrepancy, however, is not material for the purposes of this petition, for the point of law involved is the same, namely: Whether, upon the setting aside of the conviction in view of which the railway servant was dismissed from service, the authority had any right to deprive the railway servant of his pay and allowances for any period during which he could not render his services owing to that order of dismissal?

( 3 ) THAT a Government servant may be dismissed, from his service solely on the basis of his 'conviction on a criminal charge' would appear from Proviso (a) to Article 311 (21 of the Constitution. In the instant case, the dismissal was based solely on the fact of the Petitioner's conviction.--on a charge which was not connected with his employment under the Opposite Party, Hence, when that conviction was set aside by the appellate Court, the position at law would be as if the Petitioner was never convicted at law and the dismissal not having been made in conformity with Article 311 (2), became a nullity from the date of acquittal on appeal (Union of India V Akbar Sheriff ; R. S. Das v. Divisional Superintendent, Allahabad, and since the emplo