D.B.CIVIL SPECIAL APPEAL NO.734/2010 DATE OF ORDER : 7/12/2010 HON'BLE THE CHIEF JUSTICE MR.ARUN MISHRA HON'BLE MR. JUSTICE KAILASH CHANDRA JOSHI Mr.B.P.Bohra, for the appellant. This intra Court appeal has been preferred as against the order dated 11.2.2009 passed by the Single Bench of this Court directing the reinstatement of the petitioner appellant without back wages. Petitioner appellant was tried for the criminal offence u/s.376 IPC for committing rape with Ms Uma Gani on 10.9.94 between the night of 9th & 10th Sept., 1994 at a public place. In the said case, the appellant was acquitted on the ground that though he was found committing sexual intercourse with Ms Uma Gani but it was consensual act. The petitioner appellant was in the service of Railway Protection Force as Constable. Thus, he was found to have committed sexual intercourse at a public place, which is the finding in the criminal case. He was removed from service on 12.10.94. Later-on, he was acquitted for the commission of offence u/s.376 IPC vide judgment dt.14.2.1995 but with the aforesaid finding. As he was not reinstated after his acquittal, he filed writ application. The same has been allowed and reinstatement has been ordered without back wages. Mr.Bohra, learned counsel appearing on behalf of the petitioner appellant urged that the back wages ought to have been allowed, as it was not the fault of the petitioner that he was not reinstated for several years after his acquittal in the criminal case. For the failure on the part of the respondents in taking a decision upon the representation, it was incumbent upon the Single Bench to award the back wages. After hearing the learned counsel for the appellant and considering the judgment passed in the criminal case, we are of the opinion that the appellant cannot be said to be entitled for back wages at all. He is lucky to have the order of reinstatement passed by the Single Bench. On merits of it, we are not commenting in this intra Court appeal. Firstly, the appellant is not entitled for back wages on the ground that the department was not involved in the criminal prosecution. It was the individual act of the appellant of commission of rape. Thus, when the department was not responsible for the criminal prosecution, the department could not have been saddled with the liability to make the payment of back wages. Secondly, the judgment passed in the criminal case does not entitle ipso facto for reinstatement. The conduct projected in the judgment has to be taken into consideration by the department. As already mentioned above, the fact remains that a finding is recorded in the judgment that at a public place, the petitioner was found committing sexual intercourse with Ms Uma Gani. Thirdly, petitioner himself waited for filing writ application for several years. Thus, his petition could have been dismissed only on the ground of laches and in any case, he could not be said to be entitled for the back wages. In view of the aforesaid, this intra Court appeal is dismissed. (KAILASH CHANDRA JOSHI), J. (ARUN MISHRA), CJ RANKAWAT JK, PS