Order In the year 2001, the petitioner was posted as Field Officer in Land Development Bank, Jehanabad. He was taken into custody in Dinara P.S. case no. 197 of 2001 under Sections 302/34 of the Indian Penal Code. Consequent to his custody, the Regional office of Bihar State Land Development Bank put the petitioner under suspension vide order dated 19.02.2002 w.e.f. 07.01.2002. The petitioner was ultimately acquitted of the charges vide judgment dated 16.07.2004 in Sessions trial No. 227 of 2002. Consequent to his acquittal, the Bank vide memo dated 3045 dated 12.8.2004 (Annexure-3) revoked the suspension of the petitioner and permitted him to give his joining at his parent branch in Jehanabad. However, he was denied full salary for the period he was in custody, which is the main grievance in this case. The petitioner continued in service till his superannuation on 28.02.2014. 2. The grievance of the petitioner is that though his suspension was revoked on 12.8.2004 consequent to his acquittal, he is not being paid his full salary for the period 7.1.2002 to 12.8.2004. He submits that though he remained on duty from 12.8.2004 till the date of his superannuation i.e. 28.2.2014, still he has not been paid his salary for the said period. 3. The petitioner as such prays for the following reliefs: (a) for payment of complete salary for the period he was in incarceration i.e. from 07.01.2002 to 12.08.2004 in view of Rule 99 of Bihar Service Code, and (b). Salary for the period from 12.8.2004 to the date of his superannuation i.e. 28.2.2014. The relief of the petitioner is founded on the ground that once he is acquitted of criminal charge, he would be entitled to payment of full salary of the period he has remained under custody. In support of his contention, he has placed reliance upon Rule 99 of the Bihar Service Code. 4. In reply, Counsel for the Bank earlier on 28.7.2014 submits that the provision of Bihar Service Code would not be applicable in case of Bank, as it has its own Service Rules. He submits that the service rules do not permit an employee to claim salary for the period of incarceration. 4. In reply, Counsel for the Bank earlier on 28.7.2014 submits that the provision of Bihar Service Code would not be applicable in case of Bank, as it has its own Service Rules. He submits that the service rules do not permit an employee to claim salary for the period of incarceration. Learned counsel further submits that if one is arrested pursuant to a criminal case instituted by a private individual, having no concern with the affairs of the Bank, he has disabled himself from service, thus not entitled to the salary for the said period. In support of his contentions, he has placed reliance upon a decision of Apex Court in the case of Ranchhodji Chaturji Thakore vs. Superintendent Engineer, Gujarat Electricity Board & anr, reported in (1996) 11 SCC 603 . 5. The petitioner argued that the aforesaid case would not be applicable in his case, as he was never convicted by a trial court rather he was acquitted. He submits that the matter would have been different, if the authorities had denied payment of back wages for the period he suffered incarceration on account of his conviction in the criminal case, which is not the case here. 6. The issue before this Court is whether on acquittal by the Original Court itself, an employee of the Bank would be entitled for payment of back wages, for the period he remained in custody for his involvement in criminal case instituted by a private individual, not connected with the affairs of the Bank. 7. As noticed above, the facts of the case is not in dispute. The petitioner was taken into custody in Dinara P.S. Case No.197 of 2001 under Sections 302/34 of the Indian Penal Code on 7.1.2002. Obviously, the Bank had nothing to do with the criminal case. As the petitioner was taken into custody on 7.1.2002, he was put under suspension vide order dated 19.2.2002 in terms of its rules. He was subsequently acquitted of the criminal charge vide judgment dated 16.7.2004, passed in S.T. No.227 of 2002. As the petitioner was put under suspension merely on ground of his arrest in the criminal case, his suspension was revoked on 12.8.2004 on his coming out of custody, consequent upon his acquittal. He was subsequently acquitted of the criminal charge vide judgment dated 16.7.2004, passed in S.T. No.227 of 2002. As the petitioner was put under suspension merely on ground of his arrest in the criminal case, his suspension was revoked on 12.8.2004 on his coming out of custody, consequent upon his acquittal. The case of the petitioner is that he was never convicted by a criminal court and as such the decision rendered in the case of Ranchhodji Chaturji Thakore (supra) denying back wages for the period of incarceration would not be applicable in his case. 8. It appears that the appellant Ranchhodji Chaturji Thakore consequent to his conviction by a criminal Court for his involvement in an offence under sections 302/34 of I.P.C. was dismissed from service. Subsequent to his acquittal, he was reinstated in service but without back wages. Being aggrieved, the appellant challenged the none payment of back wages before the High Court which was rejected. The matter was carried in appeal before the Apex Court. The Apex Court too rejecting the contention of the appellant observed that since the petitioner had involved himself in a crime, though he was later acquitted, he had disabled himself from rendering the service on account of conviction and incarceration in jail and thus disentitled himself for payment of back wages. The Apex Court further observed that payment of back wages could be considered only if action by way of disciplinary proceeding was taken against him and the action was found to be unsustainable in law, and that he was unlawfully prevented from discharging his duty. The relevant extract of the order of Apex Court is quoted herein below for easy reference: “In this case, since the petitioner had involved himself in a crime, though he was later acquitted, he had disabled himself from rendering the service on account of conviction and incarceration in jail. Under these circumstances, the petitioner is not entitled to payment of back wages. The learned Single Judge and the Division Bench have not committed any error of law warranting interference”. 9. I may agree with the submission of the respondents that if the petitioner on account of involvement in criminal case has disabled himself from rendering service on account of conviction and incarceration, he would not be entitled to back wages. 10. The learned Single Judge and the Division Bench have not committed any error of law warranting interference”. 9. I may agree with the submission of the respondents that if the petitioner on account of involvement in criminal case has disabled himself from rendering service on account of conviction and incarceration, he would not be entitled to back wages. 10. A question remains whether back wages could be denied for period of incarceration, if one is subsequently acquitted in appeal, where the criminal case lodged either by the employer or at its behest. 11. In the case of Union of India & Ors vs. Jaipal Singh, reported in (2004) 1 SCC 121 , the Apex Court observed that if an employee is dismissed from service on conviction and even if he is later on reinstated on acquittal in appeal, still he would not be entitled to back wages for the period of his absence, if the department was not responsible for keeping him behind the prison.. The Apex Court, however, observed that if the prosecution which ultimately resulted in acquittal of the person concerned was at the behest of or by the department itself, perhaps different considerations may have arisen. (Underlining is mine for emphasis) 12. The issue was also subject matter of consideration before the Apex Court in the case of Baldev Singh vs. Union of India & Ors, reported in (2005) 8 SCC 747 . In the said case, the employee was dismissed consequent to his conviction in criminal case, which had no concern with the department and subsequently in appeal he was acquitted. Reiterating the principle held in the earlier cases, the Apex Court observed that an employee would not be entitled to back wages for the period he was in custody. 13. It is difficult for me to subscribe to the view that the aforesaid judgment would not apply to pre trial custody or incarceration. 14. In my view the principle with respect to non-payment of back wages for the period one was in custody consequent to conviction would also cover such cases, where a delinquent do not render service on account of his arrest even prior to trial which may result into acquittal or conviction. 14. In my view the principle with respect to non-payment of back wages for the period one was in custody consequent to conviction would also cover such cases, where a delinquent do not render service on account of his arrest even prior to trial which may result into acquittal or conviction. The deciding factor would be whether the petitioner was taken into custody in a case in which he was later acquitted either at the trial stage or appellate stage, was lodged at instance of employer or at its behest. 15. In case in hand, the petitioner was taken into custody in view of a criminal charge under section 302/34 IPC. The Bank was in no manner responsible for the arrest of the petitioner or lodging of the case. The case was filed by a private individual. The petitioner on account of his arrest did not render any service to the Bank. The Bank thus in no manner disabled or prevented the petitioner from rendering service. As such, the Bank cannot be fastened with the liability to make payment even for the pre-trial incarceration of the petitioner in a case, with which it had no concern, though he may have subsequently been acquitted. 16. For the purpose of deciding the issue of payment of back wages for the period of custody, the law would not differentiate between arrest prior to conviction or post conviction. The relevant factor as noticed in foregoing paragraph would be whether the petitioner was in custody in case lodged by his employer or at his behest. I have already noticed that the case in which petitioner was taken into custody, was not lodged by Bank or at its behest. The delinquent thus would not be entitled for the back wages for the period he did not render his service on account of incarceration. The Bank had not disabled him from performing his duty. I accordingly find no ground to allow prayer of the petitioner for full salary for the period he has remained in custody prior to his conviction, except the subsistence allowance, which was paid. This Court would hasten to add here that the matter would have been different if the delinquent had suffered incarceration at behest or by the department itself. 17. The petitioner lastly tried to take resort to Rule 99 of the Bihar Service Code. This Court would hasten to add here that the matter would have been different if the delinquent had suffered incarceration at behest or by the department itself. 17. The petitioner lastly tried to take resort to Rule 99 of the Bihar Service Code. He submits that the rule entitles an employee of full back wages even for the period he remained incarceration, in case of his acquittal. I need not to into the aforesaid issue as the service condition of the Bank employees is regulated by its own rules and regulations. 18. The petitioner has also raised a grievance that the respondent Bank is not making payment of subsistence allowance to him for the period he was put under suspension because of his criminal involvement and arrest. Being conscious that the petitioner would be entitled to subsistence allowance for the period he was under suspension because of his custody in view of its Service Rules, the Managing Director of the Bank vide order dated 16.7.2007 has rightly directed payment of subsistence allowance to the petitioner for the period between 7.1.2002 to 12.8.2004. The Bank would ensure immediate payment of the subsistence allowance to the petitioner within two months from the date of receipt/production of a copy of this order. 19. The petitioner lastly contended that he has not been paid his salary for the period 12.8.2004 till the date of his superannuation. The Bank does not dispute the said position in its letter dated 10.5.2008. However, it has given its usual excuse of not having necessary fund to make payment of salary which is due for the period 12.8.2004 to 28.2.2014. 20. The plea of financial apathy cannot absolve the respondents from making payment of salary to its employees. The Bank is under obligation to make payment of the salary etc. The first installment of back wages should be made to the petitioner within three months from the date of receipt/production of a copy of this order with the rest to follow suit. 21. With the aforesaid observations and directions, this writ application is allowed to the extent indicated above.