The effect of conviction on entitlement to back wages and inclusion of the period in the pensionable service period.

JUDGMENT :

1. Learned counsel for the parties are present.

2. Heard Mr. Atanu Banerjee, learned counsel appearing on behalf of the petitioner.

3. Heard Mr. Jayant Franklin Toppo, learned counsel appearing on behalf of the Respondents.

4. This writ petition has been filed for the following reliefs: -

“THAT the Petitioner prays for issuance of a Writ in the nature of Mandamus; or an appropriate Writ(s)/Rule(s)/Order(s)/Direction(s) QUASHING the order of dismissal of the Petitioner passed by District Education Officer, Bokaro (Respondent No. 4) by Office Order No. 503/Bokaro dated 19.05.2004 as contained in Annexure-5, without issuing Notice to the petitioner to show-cause to that effect, and without initiating any Departmental Enquiry, on the ground that the Petitioner has been convicted in a criminal case in connection with a land dispute in the village, which has no concern with his Service as a Clerk in the School, and in spite of the fact that prior to passing of the said Order the present Petitioner has been granted Bail by Order dated 8.4.2004 by the Hon’ble High Court on admission of his Criminal Appeal 439/2004 alongwith others; and for Commanding upon the respondents to allow the Petitioner to continue in his duty/service with all consequential benefits; and further, for issuance of a Writ in the nature of Prohibition for restraining the respondents from acting in pursuant to the Office Order as contained in Annexure-5.”

5. Prayer for Amendment to the writ petition vide I.A. No. 429 of 2022 has been allowed by the last order. Accordingly, decision of the District Level Establishment Committee taken on 26.09.2020 and communicated to the petitioner vide memo no. 1561 dated 29.09.2020 by the District Education Officer, Bokaro is also under challenge in this writ petition. By the said order claim of pay to the petitioner during the period from 26.02.2004 to 30.04.2010 has been rejected on principle of “no work no pay” and it has also been directed not to calculate the said period for the purpose of pension etc.

6. It has also been pointed out that the communication bearing memo no. 1561 dated 29.09.2020 is on record in the supplementary counter-affidavit filed by the State dated 08.10.2020 at Annexure-D and the decision of the District Establishment Committee is a part of the reply to another interlocutory application filed on 20.02.2021 by the respondent no. 4 vide affidavit dated 05.03.2021 as Annexure- A to the said reply.

Arguments of the Petitioner

7. The learned counsel for the petitioner submits that the petitioner was convicted on 26.02.2004 in a criminal case pursuant to which, he was dismissed from service. He attained the age of superannuation on 30.04.2010 and subsequently, he was acquitted by this Court in Cr. Appeal No. 439 of 2004 on 13.12.2018 and therefore, the order which is challenged in I.A. No. 429 of 2022 is not sustainable.

8. The learned counsel for the petitioner has submitted that the writ petition was earlier filed in the year 2009 challenging the order of dismissal, but during the pendency of the present case, the petitioner attained the age of superannuation on 30.04.2010 and thereafter, another order dated 29.09.2020 has been passed rejecting the claim of back wages to the petitioner for the period 26.02.2004 to 30.04.2010 and the said period has been kept out of the pensionable service of the petitioner which is now under challenge.

9. The learned counsel for the petitioner further submits that after the petitioner was granted bail in the criminal case, the petitioner made a representation dated 19.05.2004 for joining before the Principal of the school and on the same day, the District Superintendent of Education had passed the order of dismissal on account of conviction of the petitioner on 26.02.2004. The learned counsel submits that the petitioner was acquitted after his retirement vide judgment dated 13.12.2018 passed in Cr. Appeal No. 439 of 2004 and in the judgment passed in the criminal appeal, i