TARINI KUMAR Vs. CHIEF COMMERCIAL SUPERINTENDENT EASTERN RAILWAY

JUDGEMENT

(1.) This petition under Article 226 relates to the petitioner's claim for pay and allowances for the period between the 29th of July, 1959 and the 4th of May, 1961 and arises from the following circumstances: The petitioner was a clerk in the office of Opposite Patty No. 1, the Chief Commercial Superintendent, Eastern Railway. On 1/11/1956, the petitioner was arrested by the Police in connection with a Postal fraud case and was suspended with effect from 4/5/1956, pending trial. The petitioner was tried, simultaneously, by the Sessions Judge, City Sessions Court, Calcutta and the Sessions Judge, Bhagalpur, on different charges, and was convicted. As a result of this conviction, the Petitioner was dismissed from his service on 29/7/1959 but he was, later, acquitted, on appeal, by the High Courts of Calcutta and Patna, respectively. Following this acquittal, the order of dismissal was set aside by the Opposite Party No. 1 by his letter of the 25th August 1961 and the Petitioner was reinstated in service with effect from 27/8/1961, but the petitioner has not been allowed his full pay and allowances for the period intervening the date of his dismissal and 'the date of his acquittal' by an order made by the Opposite Party No. 1, and it has been directed by that order that the Petitioner 'shall be deemed to have continued to be under suspension during that period. It would be useful to reproduce that impugned order, which is at annexure A to the petition:

(2.) It is against para (a) of the foregoing order that the instant petition is directed. It should be pointed out in this context that the reference in that paragraph to 4-5-61 as the date of 'acquittal' is wrong inasmuch as the judgments of the Calcutta and the Patna High Courts in the two cases, by which the petitioner was acquitted bear the dates--the 4th August 1959 and the 29th July, 1960. This discrepancy, however, is not material for the purposes of this petition, for the point of law involved is the same, namely: Whether, upon the setting aside of the conviction in view of which the railway servant was dismissed from service, the authority had any right to deprive the railway servant of his pay and allowances for any period during which he could not render his services owing to that order of dismissal?

(3.) That a Government servant may be dismissed, from his service solely on the basis of his 'conviction on a criminal charge' would appear from Proviso (a) to Article 311(21 of the Constitution. In the instant case, the dismissal was based solely on the fact of the Petitioner's conviction.--on a charge which was not connected with his employment under the Opposite Party, Hence, when that conviction was set aside by the appellate Court, the position at law would be as if the Petitioner was never convicted at law and the dismissal not having been made in conformity with Article 311(2), became a nullity from the date of acquittal on appeal (Union of India V Akbar Sheriff ; R.S. Das v. Divisional Superintendent, Allahabad, and since the employer had prevented the employee from rendering his services from the date of dismissal onwards, the employer should be liable to pay the wages of the employee from the date of acquittal till the date of reinstatement Vide Davendra v. State of U.P. This also follows from Rule 2042 of the Railway Establishment Code, Vol. I, which governs the parties in the instant case. This Rule says that the right of a Railway servant to pay ceases from the date of the order of his removal or dismissal. This 'dismissal' must be a valid legal dismissal. When, therefore, it is established that the dismissal had no legal foundation, the right to wages revives, because it was the employer who had unlawfully prevented the employee to render his service.