An acquitted public servant does not automatically qualify for back wages for the period of dismissal due to prior conviction; entitlement is contingent upon disciplinary proceedings supporting reinstatement without misconduct.

JUDGMENT :

B.P. Routray, J.

1. Heard Mr. U.K. Sahoo, learned counsel for the Petitioner and Mr. G. Tripathy, learned AGA for State - Opposite Parties.

2. The Petitioner who is serving as Havildar in Government Railway Police has prayed for release of his salary and other financial benefits for the period he was dismissed from service on account of conviction in criminal case.

3. On 21^st May, 1999 when the Petitioner was posted in Odisha Motor Vehicle Department and discharging his duty of checking the vehicles at Link road, Cuttack was found collecting illegal money from the vehicles and accordingly upon vigilance raid huge amount of unexplained cash was found from possession of the Petitioner. Thus a case was registered for commission of offences under Sections 7 & 13(2) read with Section 13 (1) (d) (i) (ii) of the PC Act, 1988. In the trial in TR Case No.204 of 2007/15 of 2001 the Petitioner was convicted and consequently he was dismissed from service on 6^th December, 2010. The Petitioner then preferred appeal before the High Court in Criminal Appeal No.455 of 2010 wherein by judgment dated 17^th May, 2019 this court directed for his acquittal by setting aside the impugned judgment of conviction and sentence. Pursuant to his acquittal in appeal the Petitioner was reinstated in service on 19^th August, 2019 and discharged his duty as usual. In the order of reinstatement dated 19^th August, 2019 his period of dismissal / absence from duty from 7^th December, 2010 to 19^th August, 2019 was treated as extraordinary leave i.e. leave without pay. Being aggrieved with the same he preferred WP(C) No.33434 of 2020 and pursuant to order dated 4^th December 2020 the authorities were directed to consider the representation of the Petitioner seeking back wages for such period of leave. The authority then in order dated 23^rd February, 2021 under Annexure-7 considered the representation and rejected the prayer of the Petitioner to release his back wages for the period of absence from duty.

4. The short question falls for determination here is that, whether the Petitioner after his dismissal from service, consequent upon his conviction in the criminal case, would be entitled for salary and other financial benefits upon his subsequent acquittal by the Appellate Court?

5. The law is no more res integra on the question and it has been decided in several decisions of the Hon’ble Supreme Court. The Supreme Court in the case of Ranchhodji Chaturji Thakore v. Superintendent Engineer, Gujarat Electricity Board, Himmatnagar (Gujarat) and Another, (1996) 11 SCC 603 have held that question of back wages would be considered only if the respondents have taken action by way of disciplinary proceeding and the action was found to be unsustainable in law and the Petitioner was unlawfully prevented from discharging the duties. The Supreme Court have further held that since the Petitioner was involved in a crime, though being acquitted later, he had disabled himself from rendering the service on account of conviction and incarceration in jail and under such circumstances he is not entitled for payment of back wages.

6. In Krishnakant Raghunath Bibhavenekar Vs. State of Maharashtra and others , (1997) 3 SCC 636 , where the petitioner was convicted for criminal charges and was put under suspension but acquitted subsequently, the Supreme Court have held as follows:-

“4. xxxxxxxxxxx. It is true that when a Government servant is acquitted of offences, he would be entitled to re-instatement. But the question is : whether he would be entitled to all consequential benefits including the pensionary benefits treating the suspension period as duty period, as contended by Shri Ranjit Kumar? The object of sanction of law behind prosecution is to put