1 D.B. CIVIL SPECIAL APPEAL (W) NO.812/2008 Shambhoo Giri Vs. State & Ors. Date of Order :: 22-04-2009 HON'BLE THE CHIEF JUSTICE MR. DEEPAK VERMA HON'BLE MR. JUSTICE PRAKASH TATIA Mr. S.P. Sharma, for the appellant. Mr. Sudheer Tak, Dy.G.C. for the State. With consent, arguments heard. Record perused. This writ appeal has been preferred at the instance of petitioner of WP No.4903/07 decided by learned Single Judge on 18.2.2008 whereby and whereunder, the order of appellant's dismissal from the post of Head Constable in the Police Department dated 16.7.1983, has been set aside, with a further direction to reinstate him in service with continuity of service and grant of notional benefits. As regards payment of back wages, it has been directed that same shall be granted to him from the pronouncement of the judgment dated 18.2.2008 passed in the said writ petition. It is against this order, petitioner feeling aggrieved, has preferred this writ appeal. Learned counsel for the appellant contended that since he has been acquitted of the charge levelled against him under Section 5 (1)(d)(2) of the Prevention of Corruption Act, by the High Court vide judgment dated 8.9.2006 in second round after remand from the Supreme Court, therefore he would be entitled for back wages from the date of dismissal dated 16.7.1983. Learned counsel for the respondent has refuted the relief, that has been claimed by the appellant and contended that it was not a case of clean acquittal or the appellant having been acquitted honourably. Learned counsel for the respondent has taken us through the relevant portion of the order passed by the learned Single Judge in the criminal appeal filed by the appellant. 2 The relevant portion reads as under:- “At the same time however the prosecution has failed to prove the offence with which the appellant has been charged, beyond reasonable doubt thus entitling him to benefit of doubt”. In the light of this, it has been contended that as the prosecution had failed to bring home the offence, only benefit of doubt has been given to the appellant, therefore it was not a case of clean acquittal. Learned counsel for the appellant submitted that he would be entitled for whole of the back wages as contemplated under Rule 54 of the Rajasthan Service Rules. We have gone through the said rule. Admittedly, no departmental enquiry was conducted against the appellant and only on the strength of conviction recorded by the trial court under Section 5(1)(d)(2) of the Prevention of Corruption Act, he was removed from service. Subsequently, an order of acquittal was passed by this Court in appellant's criminal appeal on 16.1.2001. The said first order of acquittal was subject matter of challenge before the Supreme Court at the instance of State. The said order of acquittal dated 16.1.2001 was set aside and quashed and matter was remanded to this Court for re-hearing on merits in accordance with law. After the matter was remanded back by the Supreme Court, it was heard again and then second order of acquittal was recorded on 8.9.2006, the relevant portion whereof has been reproduced hereinabove. Learned counsel for the appellant has placed reliance on a judgment of this Court reported in 1998(1)WLC 445, Man Singh Vs. State of Rajasthan & Ors., wherein reference has been made to an opinion expressed by Full Bench of this Court in D.B. Civil Special Appeal No.44/83 decided on 4.3.1987. Lastly, learned counsel for the appellant has also placed reliance on a judgment of Supreme 3 Court reported in 2009 CDR 31(SC), Union of India & Ors. Vs. Naman Singh Shekhawat to contend that since he has been exonerated by the criminal liability by a competent criminal court, therefore he would be entitled for full back wages together with other benefits treating him to be in service throughout. Per contra, learned counsel for the respondent strenuously submitted that it was not a case of clean acquittal but only benefit of doubt has been given to him, as prosecution had failed to prove the case beyond reasonable doubt. Learned counsel for the respondent has placed reliance on a judgment of Supreme Court reported in (2007) 1 SCC 324, Banshidhar Vs. State of Rajasthan & Anr. The relevant portion reads as under:- “No hard and fast rule can be laid down in regard to grant of back wages. Each case has to be determined on its own facts. A grave charge of criminal misconduct was alleged against him. He was also found guilty of the charges levelled against him by the Special Judge. The High Court while delivering its judgment dated 16.1.2001 in S.B. Criminal Appeal No.68 of 1985 inter alia held that the prosecution has not been able to prove that any demand had been made by him. It is now a trite law that judgment of acquittal itself would not have exonerated him of the charges levelled against him. He could have been proceeded against in a departmental proceeding. (See Manager, Reserve Bank of India V. S. Mani and Commr. Of Police V. Narender Singh).” In the light of this, it was contended that in any case, appellant would not be entitled for grant of whole of arrears of salary from the date of dismissal on 16.7.1983. We find merit and substance in the arguments so advanced by the learned counsel for the respondent, more so, when he has not been given clean acquittal in the criminal appeal preferred by him by this Court. Looking to the facts and features of the case and also keeping in mind that order of acquittal was passed in criminal appeal only on 8.9.2006 after remand by the Supreme Court, it 4 would be in the fitness of things to grant relief to the appellant from 8.9.2006. We accordingly do so. The impugned order passed by the learned Single Judge stands partly modified to the extent that appellant would be entitled to receive back wages from 8.9.2006 and would also get all other monetary benefits except notional that has already been granted by learned Single Judge. With the above modification, the appeal is partly allowed. Parties to bear their own costs. [PRAKASH TATIA],J. [DEEPAK VERMA],CJ. Praveen