IMPORTANT POINT
The petitioner, not being a substantive government servant, is not entitled to back wages for the period of absence due to criminal proceedings.

JUDGMENT :

MARLI VANKUNG, J.

1. Heard Mr. T. Lalzekima, learned counsel for the petitioner, who has filed the instant petition challenging the Order dated 17th July, 2019 issued by the respondents wherein it was held that the petitioner will not be entitled to claim arrear pay and allowances during his period of absence but will be entitled from the date of joining duty.

2. The learned counsel submits that the case of the petitioner was that he was initially appointed on Muster Roll basis as a lineman in the office of Sub-Divisional Officer, Lunglei Electrical Maintenance Division (now re-designated as Power Maintenance Division) since February, 1983 till 06.10.1988. Subsequently, he was appointed to the post of Jugali on officiating basis in the scale of pay of Rs. 750-940 purely on temporary and could be terminated at any time without assigning any reasons thereof. His appointment order was made by the Executive Engineer, Lunglei Electrical Division, Lunglei dated 07.10.1988. While he was working on officiating basis as Jugali, he was arrested on 18.05.1992 in connection with Lunglei Police Station Case No. 123/1992 u/s 394/307 IPC r/w Section 14 of the Foreigners Act, 1946. The FIR was filed by the SDO, P&E Dept. Lunglei. The petitioner was initially convicted u/s 394 IPC and Section 14 of the Foreigner’s Act. However, on filing a revision petition the Appellate Court vide its order dated 02.06.2011 directed the Trial Court to consider the case of the petitioner afresh. The Appellate Court had dismissed the criminal revision for which the petitioner had filed a Criminal Appeal No. 2/1996 wherein, this Court in its Judgment dated 31.03.1999 had sent back the case to the learned Addl. District Magistrate (J) by remanding the case for retrial in form of a criminal appeal. The Court of the Addl. District Magistrate (Judicial) in criminal appeal No. 2/1996 vide its judgment dated 28.06.2004 had then convicted the instant petitioner u/s 14 of the Foreigner’s Act.

3. Aggrieved by the said conviction, the petitioner then filed criminal petition before this Court, which was disposed of vide its Order dated 02.06.2011 by remanding the matter back to the Trial Court to proceed with the trial of the petitioner on the basis of the charge sheet filed against him. Thereafter the JMFC, Lunglei Judicial District vide its judgment delivered on 11.10.2013, acquitted the petitioner of the charge made against him u/s 394 IPC r/w section 14 of the Foreigner’s Act. On being acquitted by the Court, the petitioner had tried to join his duty, which according to the petitioner, the concerned Officer did not allow him to join duty in 2013, after he was acquitted. Initially he was also not allowed to join duty when he was granted bail in January, 1993. Thereafter, the petitioner had made a representation for allowing the State respondents to join duty and for payment of back wages from 01.06.1992 to 16.07.2019. This matter was considered and on the advice of the Law & Judicial Department in their advice dated 18.06.2019, the petitioner had joined duty, however, being aggrieved by the Order dated 17.07.2019, wherein, he was not allowed his pay arrear from 01.06.1992 to 16.07.2019, the instant petitioner has approached this Court in the form of the instant writ petition.

4. Mr. T. Lalzekima, learned counsel for the petitioner submits that the instant petitioner is not a Muster Roll employee, since he was given scale of pay when he was engaged as Jugali on officiating basis on 07.10.1988. He further submits that it was not the fault of the petitioner for not joining duty, since he was not allowed to join duty by the concerned Officers and therefore, on his acquittal he may be given his pay arrear. He further submits that the FIR was initiated by the SDO and submits that in view of the judgment of the Apex Court in Raj Narayan Vs. Union of India & Ors. (2019) 5 SCC 809 (Para 6). In view of Para-6 wherein, the Apex Court had held that if the prosecution is launc