IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) WEDNESDAY, THE TWENTY FOURTH DAY OF SEPTEMBER TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE GHULAM MOHAMMED and THE HON'BLE MR JUSTICE G.BHAVANI PRASAD WRIT PETITION NO : 19615 of 2003 Between: 1 Govt.of A.P.,rep.by its Prl.Secty.to Govt., Revenue Department, Secretariat, Hyderabad 2 Commissioner of Commercial Taxes, A.P., Hyderabad 3 Deputy Commissioner (CT) Chittoor Division, Chittoor ..... PETITIONER(S) AND Sri c. Venugopal Assistant Commercial Tax officer, Office of the Commercial Tax officer, Puttur Chittoor Division & District .....RESPONDENT Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to to issue a writ, order or directions more particularly one in the nautre of writ of certiorari by calling for the records relating O.A.11544/2002 dated : 20-6-2003 on the file of the A.P.Administrative Tribunal, Hyderabad and quash the same and pass Counsel for the Petitioner:GP FOR SERVICES II Counsel for the Respondent No.: . The Court made the following : THE HON’BLE Mr. JUSTICE GHULAM MOHAMMED AND THE HON’BLE Mr. JUSTICE G. BHAVANI PRASAD W.P. NO.19615 of 2003 ORDER : ( Per HON’BLE Mr. JUSTICE GHULAM MOHAMMED ) This Writ Petition has been filed challenging the order dated 20-6-2003 in O.A.No.11544 of 2002 on the file of the Andhra Pradesh Administrative Tribunal, Hyderabad. O.A.No.11544 of 2002 was filed by the applicant, respondent herein, challenging the Government memo No.6154/Vig.1(1)2001-05 dated 3-9-2002, and consequently direct the Government to treat the suspension and dismissal period from 13-7-1991 to 3-6-1998 as on duty with all consequential benefits such as arrears of pay, continuity of service etc. The Tribunal on consideration of the matter, by its impugned order allowed the O.A. Hence, this writ petition. Learned Government Pleader for Services submitted that the Tribunal erred in treating the entire period as on duty and consequently ought not to have granted the benefits. Learned Government Pleader relying on the judgment reported in BALDEV SINGH v. UNION OF INDIA ( (1) 2005 (8) Supreme Court Cases 747 ) contended that order of acquittal does not automatically entitle the applicant- respondent to get salary for the period concerned, more so on the logic of no work no pay. On the other hand, learned counsel for the applicant contends that the departmental enquiry initiated against the applicant on 10-9-1999 is nothing to do with regard to the suspension and subsequent dismissal of the applicant from 13-7-1991 to 3-6-1998, and that as the Criminal Case ended in acquittal, therefore the applicant is entitled for regularization of the period of suspension and dismissal as on duty. Learned counsel for the applicant further submitted that even assuming that the Censure is a punishment basing on other charges it does not confer any right on the authorities to withhold payment of salary for the period for which the applicant was kept under suspension and not allowed to work. The relevant portion of the impugned order passed by the Tribunal reads as under : “ On a careful consideration of the submissions made, it is clear that there cannot be any dispute with regard to the factual aspects mentioned in the O.A. The observations made by the High Court in the Criminal Appeal filed by the applicant are only with regard to the alleged irregularity committed by the applicant in maintaining the records, and not with regard to the criminal case filed against the applicant. As already stated, the criminal case filed against the applicant ended in clean acquittal and for the aforesaid irregularity of not maintaining the records, a punishment of only censure was imposed on the applicant. So, in the circumstances, basing upon the clear acquittal of the applicant in the criminal case, it has to be necessarily construed that no punishment is awarded to him and that he is entitled to all the benefits, on treating the period of suspension and dismissal as “on duty”. Therefore, the applicant is entitled to be paid all the benefits which are liable to be paid to him. Even assuming that Censure is a punishment basing on other charges, it does not confer any right on the respondents to withhold the payment of salary of the applicant to withhold the payment of salary of the applicant for the period for which he was unnecessarily kept under suspension and not allowed to work. In the circumstances, the impugned Memo No.61564/Vig. 1 (1)2001-05 dt 3-9-2002 is unsustainable, and is accordingly set aside. The O.A. is allowed, granting the relief sought for by the applicant.” From the material available on record, it is seen that the applicant while working as Assistant Commercial Tax Officer, Rajampet a case was registered by ACB and pursuant thereto the Deputy Commissioner of Commercial Tax issued proceedings dated 6-7-1991 placing the applicant under suspension. Vide G.O.Ms.No.628 dated 27-6-1992 the applicant was directed to be prosecuted under Prevention of Corruption Act, 1988. The Special Judge for SPE and ACB cases, Nellore convicted the applicant by judgment dated 4- 11-1994 and based on the said order the Government issued G.O.Ms.No.416 dated 30-8-1995 dismissing the applicant from service with immediate effect. The applicant preferred Criminal Appeal No.1114 of 1994 before this Court and this Court allowed the said Criminal Appeal by its judgment dated 15-12-1997 acquitting the applicant of the charges leveled against him; and in pursuance of the said judgment, the Government issued G.O.Ms.No.339 dated 18-5-1998, reinstating the applicant into service by revoking the orders of dismissal. In similar circumstances, in UNION OF INDIA v. JAIPAL SINGH ( (2) 2004 (1) SCC 121), an employee was dismissed from service on an order of conviction passed by the trial Court and in appeal, the employee was acquitted of the charge. Considering those circumstances, the Supreme Court held that employee is not entitled to backwages for the period of absence i.e. from the date of dismissal till reinstatement, which would otherwise be counted towards his service. It was further clarified by the Apex Court that the employee is entitled for backwages only from the date of acquittal. The relevant portion of the judgment reads as under : “ ( 4 ) ON a careful consideration of the matter and the materials on record, including the judgment and orders brought to our notice, we are of the view that it is well accepted that an order rejecting a special leave petition at the threshold without detailed reasons therefor does not constitute any declaration of law by this Court or constitute a binding precedent. Per contra, the decision relied upon for the appellant is one on merits and for reasons specifically recorded therefor and operates as a binding precedent as well. On going through the same, we are in respectful agreement with the view taken in 1996 (11) SCC 603 (supra ). If prosecution, which ultimately resulted in acquittal of the person concerned was at the behest or by department itself, perhaps different considerations may arise. On the other hand, if as a citizen the employee or a public servant got involved in a criminal case and if after initial conviction by the trial court, he gets acquittal on appeal subsequently, the department cannot in any manner be found fault with for having kept him out of service, since the law obliges, a person convicted of an offence to be so kept out and not to be retained in service. Consequently, the reasons given in the decision relied upon, for the appellants are not only convincing but are in consonance with reasonableness as well. Though exception taken to that part of the order directing re-instatement cannot be sustained and the respondent has to be reinstated, in service, for the reason that the earlier discharge was on account of those criminal proceedings and conviction only, the appellants are well within their rights to deny back wages to the respondent for the period he was not in service. The appellants cannot be made liable to pay for the period for which they could not avail of the services of the respondent. The high Court, in our view, committed a grave error, in allowing back wages also, without adverting to all such relevant aspects and considerations. Consequently, the order of the high Court in so far as it directed payment of back wages are liable to be and is hereby set aside. ( 5 ) The respondent will be entitled to back wages from the date of acquittal and except for the purpose of denying the respondent actual payment of back wages, that period also will be counted as period of service, without any break. The re-instatement, if not already done, in terms of the order of the High Court will be done within thirty days from today. The appeal is allowed and disposed of on the above terms. Appeal allowed.” Following the said judgment in JAIPAL SINGH’s case ( 2 supra ), the impugned order is modified treating the entire period as on duty, however, denying the backwages only to the respondent-applicant from the date of dismissal from service till the date of acquittal by this Court in Criminal Appeal No.1114 of 1994 on 15-12-1997, which would otherwise be counted towards his service. The respondent- applicant is entitled for backwages from the date of acquittal. Subject to above observations, the writ petition is accordingly disposed of. No costs. _____________ GM, J ____________ GBP, J DATE : 24-9-2008 KK THE HON’BLE Mr. JUSTICE GHULAM MOHAMMED AND THE HON’BLE Mr. JUSTICE G. BHAVANI PRASAD W.P. NO.19615 of 2003 24-9-2008