IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) FRIDAY THE SIXTH DAY OF MARCH TWO THOUSAND AND NINE PRESENT THE HON'BLE MR JUSTICE GHULAM MOHAMMED and THE HON'BLE MR JUSTICE B.SESHASAYANA REDDY WRIT PETITION NO : 24791 of 2006 Between: 1 The Government of Andhra Pradesh, rep. by its Principal secretary, Dept,. of Home, secretariat, Hyderabad. 2 The Additional Director General of Police (Administration), Andhra Pradesh, Hyderabad. 3 The Deputy Inspector General of Police, Visakhapatnam Range, Visakhapatnam. 4 The Superintendent of Police, Visakhapatnam district, Visakhapatnam. ..... PETITIONER(S) AND Sri.D.Jagadeswara Rao, O/o. Superintendent of Police, Visakhapatnam 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 an appropriate writ or direction more particularly one in the nature "Writ of Certiorari" calling for the records relating to and connected with order dt. 08.06.2006 in O.A.No.8525/2000 on the file of the Hon'ble A.P. Administrative Tribunal, Hyderabad and to quash or set-aside the same by holding as erroneous and contrary to law to and pass such order or orders. Counsel for the Petitioner:GP FOR SERVICES I Counsel for the Respondent No.: DR.P.B.VIJAY KUMAR The Court made the following : ..... REGISTRAR THE HON'BLE MR JUSTICE GHULAM MOHAMMED and THE HON'BLE MR JUSTICE B.SESHASAYANA REDDY WRIT PETITION NO : 24791 of 2006 Oral Order : ( Per Sri GM, J ) Heard. When the writ petition is taken up for consideration, Sri P. B. Vijay Kumar, learned counsel for the respondent submitted that the issue involved in this Writ Petition is squarely covered by the decision of this Court in Writ Petition No.19615 of 2003 dated 24-09-2008. In BALDEV SINGH v. UNION OF INDIA ( (1) 2005 (8 SCC 747 ) the appellant therein belonging to Indian Army was terminated from service because of the conviction and though acquitted in criminal case later, he was not in actual service for the period he was in custody. The authorities therein also stated that the claims and dues admissible will be settled after the government sanction is received. That was only an indication that only after the government sanction for regularization is received the claim will be settled and nowhere there was admission of the entitlement of the appellant therein. On excluding the said period the appellant therein since not rendered the requisite service of 15 years, it was held, that he was not entitled to pension. The Apex Court further held that mere acquittal of the employee concerned in criminal case, would not automatically entitle him to the arrears of pay where he had not worked for the relevant period and that principle of no work and no pay applies. The relevant portion of the judgment reads as under : “ .. the appellant was not in actual service for the period he was in custody. Merely because there has been an acquittal does not automatically entitle him to get salary for the period concerned. This is more so on the logic of no work no pay. The appellant was terminated from service because of the conviction. Effect of the same does not get diluted because of the subsequent acquittal for the purpose of counting the service. There is no dispute to the proposition laid down in BALDEV SINGH’s case ( supra ). 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.” In Writ Petition No.19615 of 2003, this Court by its order dated 24-9-2008, in similar circumstances, following the judgment of the Supreme Court reported in UNION OF INDIA v. JAIPAL SINGH ( (2) 2004 (1) SCC 121 ) held as follows : “ 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. ” Following the said judgment, and for the reasons given therein the impugned order is set aside and the writ petition is stands allowed in part accordingly. No costs. __________ GM, J __________ BSSR, J Kk 6-3-2009 THE HON'BLE MR JUSTICE GHULAM MOHAMMED and THE HON'BLE MR JUSTICE B.SESHASAYANA REDDY WRIT PETITION NO : 24791 of 2006 6-3-2009