Acquittal does not imply entitlement to backwages if dismissed due to criminal conviction initiated independently of the employer.

ORDER

Justice K.Haripal, Judicial Member

Since common questions are raised by the applicants whose official profile is almost identical and since they had faced same criminal proceedings and suffered punishment of dismissal of service from the respondents which was later recalled with a rider imposing 'dies non' is the core of challenge in these Original Applications and since respondents 1, 4 and 5 are the same, both these Applications were clubbed, heard together and are being disposed of by this common order.

2. Applicant in O.A 244 of 2022 had started as a Khalasi in the Southern Railway on 27.02.1978. While working as Senior Clerk in the Divisional Office from 1983, a case was registered against him by the CBI, was arrested and detained in custody following which he was suspended from service on 09.04.2002. That suspension and non-enhancement of subsistence allowance was the subject matter of O.A.64/2005 before this Tribunal. During the pendency of that O.A, he was reinstated in service on 26.09.2006. Thus he remained under suspension from 09.04.2002 to 26.09.2006. Thereafter, the CBI charged the case as CC. 15/2003 before the II Additional Special Court, CBI, Coimbatore. The Court, after trial, found him guilty of various offenses and sentenced to undergo imprisonment for 4 years was fined under different heads on 18.05.2007. Thus he was again deemed to have been suspended from service on 18.05.2007, by Annexure-A2 order dated 02.08.2007. Later, by Annexure-A3 order dated 20.09.2007 he was dismissed from service.

3. The applicant along with other co-convicts challenged the judgment before the Madras High Court. By judgment dated 06.02.2018 the Criminal Appeal was allowed and all the convicts were found not guilty and acquitted. Thereafter, the applicant filed an appeal before the 3^rd respondent and the appeal was allowed by Annexure-A5 order dated 25.03.2021 and the Annexure-A2 order of dismissal was revoked. However, in Annexure-A5, the 3^rd respondent made clear that his period of absence from 18.05.2007, that is date of suspension till his retirement on 31.05.2018 shall be treated as dies-non; that part of Annexure-A5 order is impugned in this Original Application.

4. Similarly, the applicant in O.A 245 of 2022 had started as Khalasi on 02.05.1980. He became a Diesel Assistant on 24.01.2000. While so, he also was involved in the above stated CBI case and was placed under suspension from 10.04.2002 to 16.10.2006. He was paid subsistence allowance during the period. In C.C Nos. 14/2003 and 15/2003 of the II Additional CBI Court Coimbatore, by judgment dated 18.05.2007, he was convicted and sentenced to undergo imprisonment. Thereafter, he was also put under deemed suspension from 18.05.2007, was dismissed from service and later, when Criminal Appeals 457/2007 and 458/2007 filed before the Madras High Court were allowed and his conviction was reversed, Annexure-A2 order of dismissal was revoked. Here also, the period of absence was treated as 'dies non' and the challenge is against the said order of treating the period of absence as non- duty.

5. In O.A/244/2022, the following reliefs are sought by the applicant.

“i) Call for the records leading to Annexure A.5 and set aside the same to the extent it treats the period of deemed suspension as "Dies non" and also set aside Annexure A.6 in its entirety.

ii) Direct the 3^rd respondent to treat the period of deemed suspension of the applicant as duty for all purposes as stated in Annexure A5 and grant all consequential benefits viz. Back wages, increments, higher grades, revision of pension, revision of DCRG, revision of CVP etc

iii) Direct the 3^rd