IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No.8038 of 1987 (O&M) Date of decision:21.10.2011 Bhajan Singh (deceased) through his L.Rs. ...Petitioners versus The Punjab State Cooperative Milk Producers' Federation Limited (MILKFED), SCO 3015-16, Sector 22, Chandigarh. ....Respondent CORAM: HON’BLE MR. JUSTICE K. KANNAN ---- Present: Mr. A.P.Bhandari, Advocate, for the petitioners. Mr. Salil Sabhlok, Advocate, for Mr.D.S.Patwalia, Advocate, for the respondent. ---- 1. Whether reporters of local papers may be allowed to see the judgment ? No. 2. To be referred to the reporters or not ? Yes. 3. Whether the judgment should be reported in the digest ? Yes. ---- K.Kannan, J. (Oral) 1. The petitioner's case was that he was taken in service on 31.12.1986 and that he should be granted all the benefits during the period when he had been arrested till he was acquitted, namely, from the period from 29.10.1984 to 26.12.1986. 2. The claim of the petitioner is contested by the Management on the ground that the petitioner was absenting himself and his application for leave made on 03.10.1984 was rejected and he had not joined despite rejection of his leave. A subsequent Civil Writ Petition No.8038 of 1987 (O&M) - 2 - application for leave had also been rejected. According to the Management, therefore, at the time when he was arrested on 29.10.1984, he was already on unauthorized leave. It is further contended that it was not as if the petitioner had remained in jail for the entire period but even as conceded by him in the writ petition, he had been released on bail on 04.09.1985 and he had not sought for reinstatement during that period. The demand came for the first time only after he was acquitted. There is no scope for treating him as being in service to afford to him the claim for salary and other benefits during the said period. 3. The learned counsel for the petitioners relies on three decisions, two of which of this Court, namely, Shashi Kumari Versus Uttri Haryana Bijli Vitran Nigam and anotehr-2005(1) RSJ 718; Mathura Dass Gupta Versus Superintending Engineer, Circle Office, Dakshin Haryana Bijli Vitran Nigam Limited and others-2008(3) RSJ 251, and a judgment of the Hon'ble Supreme Court in Brahma Chandra Gupta Versus Union of India-AIR 1984 Supreme Court 380 in support of his claim. In Shashi Kumar's case, referred to above, this Court relied on its own earlier ruling to hold that when an employee, who had been removed from service after conviction was reinstated after an acquittal, would be entitled to be paid the full wages. In Mathura Dass Gupta's (supra), the issue again was that when the employee had been acquitted of the charges levelled against him, a reinstatement ought Civil Writ Petition No.8038 of 1987 (O&M) - 3 - to mean restoration of all consequential benefits. In the judgment of the Hon'ble Supreme Court in Brahma Chandra Gupta's case (supra), suspension of employee following criminal prosecution would again provide to him a right of not merely a reinstatement but held the salary withheld during the suspension period. 4. All the above decisions will apply only in cases where a removal or suspension takes place consequent on initiation of criminal proceedings which results in acquittal. Where an employee was already on unauthorized leave and he could not report for duty subsequently not resulting out of any complaint by the petitioner but arrested on independent criminal case brought against him, there is no question of such an employee demanding that he should be treated as in service and to claim wages for the said period. The petitioner must thank himself that he was reinstated on acquittal and if at all, the relief that the petitioner could ask is to treat the period of his absence as on leave of the kind due and for treating the said period for continuity of service for terminal benefits. I cannot afford to the petitioner any salary or wages when his incarceration was at a time when he had already remained on unauthorized leave. The learned counsel for the respondent refers to me a decision in Baldev Singh Versus Union of India and others-(2005) 8 Supreme Court Cases 747 that dealt with the issue of arrears of pay to an employee who, on acquittal in a criminal case, demanded arrears of pay when the Court held that the principle of 'no work, no pay', would apply Civil Writ Petition No.8038 of 1987 (O&M) - 4 - and the salary cannot be claimed as a matter of right. It cannot make a difference when a person suffers conviction or incarceration could not be in a position to report for duty when the criminal action is initiated by the employer and makes it impossible for him to report for duty. It cannot apply to a case where criminal action was not initiated by the employer and if he could not stay in employment during the period when he was in jail, that cannot be taken to his own advantage and demand of the employer to pay wages during that period. In this case, the petitioner had actually been released on bail on 04.09.1985 and it is not clear why he could not report for duty or why he did not make a request for rejoining. 5. The petitioner cannot claim any benefit during the period of his imprisonment and the petitioner's claim ought to fail. Having regard to the fact that he had been ultimately reinstated and the employer did not take the issue of his imprisonment itself as a justification to remove him from service or the unauthorized absence that originated on 03.10.1984 as an occasion for any departmental action, the period of absence could be treated as a leave of the kind due and he could also be treated as if there were continuity of his service for any terminal benefits that is payable to the estate of the now deceased petitioner. In the line in which I have rejected the petitioner's claim, it ought not to be understood as dis-entitling the legal representatives to claim what has accrued, if any, and what has not been paid by the employer. If the petitioner can produce proof of Civil Writ Petition No.8038 of 1987 (O&M) - 5 - such entitlement, it will be open to the petitioners to make a representation and secure appropriate redressal from the respondent. (K. KANNAN) JUDGE 21.10.2011 sanjeev