. Rule. Rule is made returnable forthwith. Learned Counsel Mr. Avishkar S. Shelke waives service for respondent no.1. At the ::: Uploaded on - 27/09/2022 ::: Downloaded on - 28/09/2022 21:54:27 ::: 2 joint request of the parties, the matter is heard finally at the stage of admission.

2. The short issue involved in the present petition is, whether an employer is justified in denying wages to the employee during pendency of appeal against his acquittal on the principle of 'no work no pay'.

3. Petitioner was working as a Junior Technician with Maharashtra State Electricity Distribution Company Ltd (hereinafter referred to as the 'MSEDCL'). He got himself embroiled in criminal prosecution on the charges of demand and acceptance of illegal gratification. Under Regulation 90 of the Maharashtra State Electricity Distribution Company Ltd. Employees' Service Regulations, 2005 (hereinafter referred to as 'the Service Regulations') there is a provision for conduct of a summary enquiry. Such summary inquiry proceedings were initiated by issuing charge-sheet dated 20.09.2008. After receipt of Petitioner's reply, the penalty of removal from service with effect from 22.07.2008 was imposed on him vide order dated 08.12.2008. His appeal against the order of removal was rejected by order dated 13.08.2009.

4. In the Special (ACB) Case No.2 of 2009 instituted ::: Uploaded on - 27/09/2022 ::: Downloaded on - 28/09/2022 21:54:27 ::: 3 against the petitioner in the Court of Special Judge at Omerga, he came to be acquitted by Judgment and order dated 11.10.2013. His acquittal was challenged by the State Government before this Court by filing Criminal Appeal No.799 of 2014. When the petitioner requested for his reinstatement based on his acquittal, the request was turned down vide communication dated 16.07.2014 on the pretext of pendency of criminal appeal against acquittal. Writ Petition No.7578 of 2014 was filed seeking reinstatement, but the same was withdrawn and disposed of by order dated 26.11.2015 with a liberty to resort to appropriate remedy.

5. It appears that the petitioner filed one more appeal challenging the penalty of removal from service. Since the appeal was not being decided, he filed Writ Petition No.4253 of 2016 and it came up for hearing on 06.10.2017. A statement was made on behalf of the petitioner that he would not claim back-wages till acquittal. This Court disposed of Writ Petition No.4253 of 2016 by order dated 06.10.2017 granting him liberty to file applications / representation under Regulation 106 of the Service Regulations for reinstatement with a further direction to the authority to decide the same.

6. The Chairman and Managing Director of MSEDCL ::: Uploaded on - 27/09/2022 ::: Downloaded on - 28/09/2022 21:54:27 ::: 4 rejected the petitioner's application / representation by order dated 06.02.2018 inter alia holding that the petitioner was not acquitted on merits and that Criminal Appeal against the acquittal was pending. The appellate authority, therefore, rejected the request for reinstatement.

7. Criminal Appeal No.799 of 2014 was thereafter heard by this Court and the same was dismissed vide judgment and order dated 04.04.2019. After dismissal of the criminal appeal, the petitioner was ultimately reinstated in service by order dated 04.09.2019. However in respect of the period from 09.12.2018 till reinstatement, he was held to be not entitled to any financial benefits on the principle of 'no work no pay' in accordance with the Circular No.6573 dated 24.11.1992. The petitioner made representation dated 22.01.2020 against the said decision. By letter dated 31.01.2020 it was once again communicated that he would not be entitled to any financial benefits on the principle of 'no work no pay'. The decision vide communication dated 31.01.2020 is impugned by the petitioner in the present petition.

8. The petitioner has prayed for the benefit of continuity and backwages in view of his reinstatement in service vide order ::: Uploaded on - 27/09/2022 ::: Downloaded on - 28/09/2022 21:54:27 ::: 5 dated 04.09.2019. During the course of his submissions, Mr. Syed, learned Counsel appearing for the petitioner did attempt to impress upon us that the petitioner would be entitled to backwages from the date of his removal i.e. w.e.f. 08.12.2008. However, his attention was invited to the following statement made during the course of hearing of Writ Petition No.4253 of 2016 on 06.10.2017:-

9. Mr. Syed would submit that after acquittal of the petitioner, there was no reason for MSEDCL to continue him under order of removal. He would submit that mere pendency of the appeal against acquittal would not mean continuation of criminal proceedings so as to continue the order of removal. He would submit that upon petitioner's acquittal, his reinstatement was required to be immediately done. In support of his submission, Mr. Syed would rely upon the judgment of the Apex Court in Bhuvnesh Kumar Dwivedi ::: Uploaded on - 27/09/2022 ::: Downloaded on - 28/09/2022 21:54:27 ::: 6 Vs. Hindalco Industries Ltd. , AIR 2014 SC 2258.

10. Per contra, Mr. Shelke, learned Counsel appearing for MSEDCL would submit that the company is justified in denying the wages for the period from the date of removal till the date of reinstatement on the principle of 'no work no pay'. He would rely upon the provisions of Circular dated 24.11.1992 in support of the action of the company. He would submit that since the appeal was filed by the State challenging the order of acquittal, the Company was justified in waiting for outcome of the appeal for reinstatement of the petitioner. Mr. Shelke would further submit that there is no difference between acquittal at the first instance and acquittal on appeal for the purpose of reinstatement of the petitioner. It is only after the final acquittal that the petitioner became entitled to claim the relief of reinstatement. He would further submit that despite filing two writ petitions, the petitioner was not successful in getting a relief of reinstatement from this Court, which thereby meant that the action of the Company in continuing the petitioner under removal during pendency of appeal was justified. He would further submit that the petitioner has not challenged the Circular dated 24.11.1992 and therefore, the provisions of the circular would continue to apply to him. He would submit that the period between acquittal of the ::: Uploaded on - 27/09/2022 ::: Downloaded on - 28/09/2022 21:54:27 ::: 7 petitioner and his reinstatement is very long and that therefore the respondent Company cannot be saddled with the liability of backwages especially when the petitioner himself was responsible for getting involved in criminal offence alleged against him.

11. In support of his contention, Mr. Shelke relied on the judgment of this Court in Ramchandra Bapusaheb Desai Vs. Maharashtra State Electricity Distribution Company Limited , 2017 DGLS (Bom) 150. He would also rely upon the judgment of this Court in Sudhakar Shankarrao Chapke Vs. Maharashtra State Electricity Distribution Company Ltd and another , Writ Petition No.1846 of 2014 decided on 21.12.2017.

12. Rival contentions of the parties now fall for our consideration.

13. The penalty of removal from service was imposed on the petitioner merely on the basis of the registration of criminal case against him in exercise of powers conferred under regulation 90 of the Service Regulations which provides for conduct of summary disciplinary proceedings. Undisputedly, regulation 90 has subsequently been struck down by this Court. Be that as it may, we ::: Uploaded on - 27/09/2022 ::: Downloaded on - 28/09/2022 21:54:27 ::: 8 are not called upon to decide the validity of the removal order dated 08.12.2008. A limited prayer is made in the present petition for grant of continuity of service and backwages. On account of the statement made by the petitioner's counsel in Writ Petition No.4253 of 2016, the issue of backwages from the date of termination till the acquittal no longer survives. Therefore, we are tasked upon to decide the issue of backwages only during the period from the date of acquittal till the date of reinstatement.

14. In our opinion, mere pendency of the appeal against acquittal would not entitle the respondents to continue the penalty of removal from service. The petitioner was removed from service only on account of registration of criminal case against him. Full-fledged and independent disciplinary proceedings were not initiated against him. Therefore, upon his acquittal in the criminal case, the natural corollary was to reinstate him in service. Merely because the State filed appeal against acquittal would not mean that the petitioner would continue to suffer the rigors of pendency of criminal prosecution. Till the judgment of acquittal was reversed in appeal, all the effects of acquittal would continue to apply. We may consider a reverse situation where the government servant is convicted and his sentence is suspended in appeal. It is trite that in such cases the ::: Uploaded on - 27/09/2022 ::: Downloaded on - 28/09/2022 21:54:27 ::: 9 conviction would continue to operate notwithstanding suspension of the sentence. A convicted person would continue to suffer all the effects of conviction even during pendency of the appeal. Applying same logic, during pendency of appeal against acquittal, the acquitted person would continue to enjoy all the benefits arising out of such acquittal during pendency of the appeal. We, therefore do not find that there existed any valid ground not to reinstate the petitioner during pendency of the appeal against acquittal.

15. At this stage, it would be profitable to consider the case law on the subject. In Bank of India v. Degala Suryanarayana , (1999) 5 SCC 762, even though the issue of appeal against acquittal was not involved, the Apex Court was concerned with the issue of effect of acquittal on the rights of employees. The Court held thus:

cedure. It was held "A person so acquitted of the charges stand at par with a person who is not being charged and was not subjected to a criminal proceeding. The prefer- ment of a criminal revision or an appeal against an ac- quittal cannot be regarded as a continuance of the trial and cannot be treated to be pendency of judicial proceeding as the initial presumption of innocence gets re-enforced by the orders of acquittal." In S. Ra- jagopal (supra) a Division Bench of the Madras High Court was considering the issue of regularization of the suspension period following the acquittal, the suspen- sion having been made on account of either having been arrested and kept in custody or otherwise on account of the Criminal proceedings. It was held that the term 'ju- dicial proceedings' in so far as criminal cases are con- cerned comes to an end when an order of acquittal is passed. In Rajagopal (supra) the Division Bench of the Madras High Court referred to Surinder Ku-

mar (supra); State of West Bengal v. Hari Ra-

malu; (2000) 3 LLN 638; Chandu Ram v. State of H.P. ; 2009 SCC OnLine HP 1303; State of Haryana v. Banwari Lal ; 2010 SCC OnLine P&H 183, Chief Commissioner of Land Administration A.P, Hyderabad v. R.S. Ramakrishna Rao; ( 2010) 2 ALD 773, R.C. Dubey v. M.P. State Electricity Board ; 2013 SCC OnLine MP 1004 and held:--

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23. The last submission of Mr. Shelke is that the period between date of acquittal and the date of reinstatement i.e. from 10.11.2013 till 03.09.2019 is too long and that therefore the respondent Company need not be saddled with the liability to pay backwages for such a long period. We find that the respondent Company itself was responsible for the delay in reinstatement. The respondent - Company ought to have reinstated the petitioner immediately on his acquittal on 10.11.2013. Such reinstatement ::: Uploaded on - 27/09/2022 ::: Downloaded on - 28/09/2022 21:54:27 ::: 17 could have been made subject to the outcome of the appeal. The respondent Company, however, unjustifiably delayed the reinstatement till decision of the appeal. Even after the appeal was allowed on 04.04.2019, the respondent company took further period of five months in reinstating the petitioner on 04.09.2019. We, therefore, find that the respondent company alone is responsible for prolonging the period during which the backwages are required to be paid.

24. Now, we deal with the judgment relied upon by Mr. Shelke in Ramchandra Bapusaheb Desai (supra). The issue involved was about payment of backwages after acquittal in the criminal case. The petitioner in that case was facing criminal trial on account of which he came to be dismissed from service on 27.09.2010. He was acquitted by the trial court on 03.12.2011. Consequently, he was reinstated in service on 21.04.2012. The issue before this Court was about payment of backwages from the date of dismissal till the date of reinstatement. Thus, the issue involved was entirely different. In that case, neither appeal was filed against acquittal nor the reinstatement was delayed during pendency of appeal. Therefore, reliance of Mr. Shelke on this judgment is totally misplaced. In Sudhakar Shankarrao Chapke (supra) the petitioner therein was dismissed from service by order dated 08.08.2008 in ::: Uploaded on - 27/09/2022 ::: Downloaded on - 28/09/2022 21:54:27 ::: 18 exercise of power under regulation 90 on account of registration of criminal prosecution. He was acquitted by the trial court on 05.09.2011. In Writ Petition No.4006 of 2008 previously filed, this Court had directed conditional reinstatement of the petitioner therein as a result of his acquittal, subject to outcome of the appeal. Thus, the judgment in Sudhakar Shankarrao Chapke, far from assisting the case of Mr. Shelke, in fact militates against him. In that case, the very same respondent Company was directed to reinstate the Petitioner therein in service upon acquittal by the trial court even during the pendency of the appeal. The judgment thus recognizes the principle that mere pendency of appeal against acquittal would not be a reason for the employer to delay the reinstatement.

25. We are, therefore, of the considered view that the action of the respondent Company in not reinstating the petitioner immediately after his acquittal was clearly unjustified. Under the provisions of the Circular dated 24.11.1992, the petitioner is already entitled for restoration of his seniority and terminal benefits. What remains is the benefit of backwages and pay fixation. Since the action of the respondent is found to be unjustified, we are of the view that the petitioner would be entitled the benefits of both backwages as well as continuity in service. Consequently, we will proceed to pass the following order:

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(iv) The petitioner will be entitled to the benefit of continuity of service during the entire period from 08.12.2008 till 03.09.2019. In respect of the period from 08.12.2008 till 10.11.2013 he would be entitled to notional pay fixation by grant of yearly increments. However, in respect of the period from 11.10.2013 till 03.09.2019 he would be entitled to actual pay fixation.

(v) The entire period from 08.12.2008 till 03.09.2019 be treated as duty for all purposes, except for backwages in respect of the period from 08.12.2008 to 10.10.2013.

(vi) Writ Petition is accordingly allowed. Rule is made absolute.