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2014 DIGILAW 359 (TRI)

Jamal Miah v. State of Tripura

2014-11-05

U.B.SAHA

body2014
JUDGMENT Utpalendu Bikas Saha, J. 1. By means of this writ petition, the petitioner has sought for setting aside the impugned show cause notice dated 18.5.2007 (Annexure P-8 to the writ petition) whereby the petitioner was asked to explain as to why the period of his suspension from 4.4.92 to 22.8.92 would not be treated as 'Non duty' and the impugned order dated 3.7.2007 (Annexure P-11 to the writ petition) by which the petitioner was informed about his non-entitlement of pay and allowances for the period of suspension i.e. from 4.4.92 to 22.8.92 and the dismissal period i.e. from 23.8.94 to 2.12.96 (Annexure P-9 and Annexure P-11 to the writ petition respectively). 2. Heard Mr. Somik Deb, the learned counsel for the petitioner as well as Mr. T.D. Majumder, learned Govt. Advocate appearing for the State respondents. 3. The brief facts needed to be discussed are as follows: The petitioner, while working as Junior Operator (Pump) in the office of the Assistant Engineer, Public Health Engineering Sub-Division No IX, Santirbazar under the control of the Executive Engineer, Public Health Engineering, Division No. III, Udaipur, was arrested on 3.4.1992 in connection with Bishalgarh P.S. case No. 24(3)/1992 registered under Sections 302/34 IPC alleging that the petitioner had committed murder of one Mukbul Miah. Consequently, vide order dated 21.9.1992 (Annexure P-1 to the writ petition) issued by the Engineer-in-Chief, Public Works Department, the petitioner was placed under suspension from the date of his detention i.e. from 4.4.92. Thereafter, vide judgment dated 23.8.1994 passed in Sessions Trial No. 149 (WT/A)/1993, the learned Sessions Judge, West Tripura convicted him for commission of offence under Section 302 IPC and sentenced him to suffer rigorous imprisonment for life and after the petitioner was convicted and sentenced for life by the learned Sessions Judge and consequent thereof, he was dismissed from service by order dated 14.9.1995 (Annexure P-3) of the Chief Engineer, PWD (PHE), Agartala. 4. Against the order of conviction and sentence, an appeal was carried by the petitioner and in appeal; he was acquitted by the Division Bench of Gauhati High Court, Agartala Bench. 5. Having been acquitted of the charge, the Chief Engineer, P.W.D. (WR), Agt. 4. Against the order of conviction and sentence, an appeal was carried by the petitioner and in appeal; he was acquitted by the Division Bench of Gauhati High Court, Agartala Bench. 5. Having been acquitted of the charge, the Chief Engineer, P.W.D. (WR), Agt. by order dated 3.12.96, revoked the order of suspension and withdrew the dismissal order, but the period during which the petitioner was under suspension followed by dismissal till his reinstatement in service was ordered to be as 'non-duty' and thereby, the petitioner was made disentitled for any financial benefit for the said period. The relevant portion of the order reads as follows: ".. Now, therefore, the undersigned in exercise of the powers conferred by clause (c) of Sub-rule-5 of Rule-10 of the Central Civil Services (CC & A) Rules, 1965 hereby revokes the said order of suspension and withdrawn the dismissal order under F.R.-54 with immediate effect. The period of his suspension and subsequent dismissal till the date of re-instatement should be treated as non-duty and which is governed by F.R. 54(3)(1) and the past service rendered before the dismissal/removal etc. will not be forfeited. The seniority position of Md. Jamal Miah. Jr. Operator (Pump) shall be ranked as usual above to his junior. Md Jamal Miah, Jr. Operator (pump) is not entitled to get further any financial benefit during the period of suspension as well as the period of dismissal till re-instatement. Pay and Allowances of Md. Jamal Miah, Jr. Operator (Pump) shall be paid as per normal rules treating the period as non-duty and with effect from the date of his actual joining to the post." 6. The petitioner then submitted a representation on 9.12.1996 (Annexure P-5) to the respondent No. 3 to pay him full salary for the period of his suspension as well as dismissal. Being not responded to the said representation by the respondent authority, the petitioner then filed a writ petition being Civil Rule No. 617 of 1997 praying for quashing/setting aside the order dated 3.12.96 (Annexure-4 to the writ petition) and thus treating the period of his suspension and that of his dismissal till reinstatement in service on duty. Being not responded to the said representation by the respondent authority, the petitioner then filed a writ petition being Civil Rule No. 617 of 1997 praying for quashing/setting aside the order dated 3.12.96 (Annexure-4 to the writ petition) and thus treating the period of his suspension and that of his dismissal till reinstatement in service on duty. The learned Single Judge of the Gauhati High Court, Agartala Bench by judgment and order dated 7.2.2007 disposed of the said Civil Rule with the following observations: "It can be seen from the impugned order dated 3.12.96 that no reasons are mentioned indicating why the petitioner's absence has been treated as 'non-duty'. The explanation offered by the counter-affidavit that the said order has been passed on account of involvement of the petitioner in a criminal case cannot be accepted inasmuch as all persons who are to be considered in terms of FR 54(2) would be persons involved in criminal case and who have been fully exonerated from such criminal charge. Therefore, mere involvement in a criminal case while considering a case under FR 54(2) cannot be an acceptable reason for treating a person's absence through involvement in a criminal case as 'non-duty'. Therefore, it would be incumbent upon the authority for passing such an order to indicate the reason in the order itself. An order treating a certain period in respect of a Government servant as 'non-duty' period has adverse civil consequence against the concerned Government servant as he becomes disentitled to all financial benefits by virtue of such an order and accordingly, this court is of the view that such an order should not only contain the reason but should also be preceded by reasonable opportunity to the concerned employee, before such adverse orders are passed. It can be seen from the order dated 3.12.06 that no reasons are indicated as to why the authorities decided to pass the said order. It can be further seen that the said order was not preceded by an opportunity to the petitioner. In view of the above finding, this court is of the view that the later part of the order dated 3-12-96 treating the petitioner's period of absence as 'non-duty' and also ordering disentitlement of the petitioner to get any financial benefit during the said period, are vitiated in law and accordingly, the same is interfered with. In view of the above finding, this court is of the view that the later part of the order dated 3-12-96 treating the petitioner's period of absence as 'non-duty' and also ordering disentitlement of the petitioner to get any financial benefit during the said period, are vitiated in law and accordingly, the same is interfered with. The impugned order dated 3-12-96 to the above extent is set aside and quashed. However, the authorities are at liberty to decide as to how they would treat the period of absence of the petitioner by duly following the principles of natural justice in terms of the observations made in this judgment. The writ petition is allowed in terms of the above order. No. cost." 7. Enclosing the copy of the aforesaid judgment dated 7.2.2007, the petitioner made a representation (Annexure P-7 to the writ petition) to the respondent No. 2, the Chief Engineer, Public Works Department, P.H.E. for making payment of salary in arrear for the period of his suspension as during the said period, he was paid only the subsistence allowance and also to pay the salary for the period from the date of his dismissal from service till his reinstatement. 8. In reference to the order of suspension dated 21.9.1994, the respondent No. 3 issued the impugned show cause notice on 18.5.2007 (Annexure P-8) asking the petitioner to explain as to why the period of his suspension from 4.4.1992 to 22.8.1994 shall not be treated as 'non-duty' but on the same day, by another order, the respondent No. 3 in compliance of the judgment of the learned Single Judge dated 7.2.2007, the later part of the order dated 3.12.96 (Annexure P-4) was cancelled. The order dated 18.5.2007 reads as follows: "In pursuance of the judgment, dated 07.02.07 as passed by the Hon'ble High Court, Agartala Bench, Agartala, the later part of this office order No. F.4(2001)/IFC & PHE (E)/90 (shadow), dated 3.12.96 treating (i.e. the petitioner's) the period of absence (i.e. suspension period from 04.04.92 to 22.08.94 and dismissal period from 23.08.94 to 02.12.96) as "non-Duty" and also for ordering disentitlement to get any financial benefit during the aforesaid period in respect of Md. Jamal Mia, Jr. Operator, (Pump), is hereby cancelled." 9. Jamal Mia, Jr. Operator, (Pump), is hereby cancelled." 9. On 6.6.2007, the petitioner submitted reply to the show cause notice dated 18.5.2007 stating that for the period from 4.4.92 to 22.8.94, he did not perform duty as he was prevented to do the same because of his suspension/dismissal order and thus prayed for not to treat the aforesaid period as non-duty to which by the impugned order dated 3.7.2007 (Annexure P-11) the respondent No. 3 informed the petitioner that his aforesaid claim is not acceptable to the department. For better appreciation, the relevant part of the order is reproduced hereunder: "In reply to the show cause notice as served from this end vide No. F. 4(6)-PWD/LC/98 dated 18.05.07, the claim which you have raised vide your letter under reference that your suspension as well as dismissal period from service (i.e. suspension period from 04.04.92 to 22.08.94 and dismissal period from 23.08.94 to 02.12.96) is guided by F.R. 54(2), is not acceptable to this department. You had been implicated in a criminal case due to a FIR lodged by a third party and the police department. This office (employer) had taken action as per established norms of police department and as per CCS (CC & A) Rules. As such, this office (employer) is not responsible for your conviction. Accordingly, this office (employer) cannot be taxed for paying your pay and allowances, for the period as mentioned above for which you had not rendered any Govt. duties. Further to state here that it is clearly mentioned in F.R. 54(3)(1) "If no order is passed directing the period of absence be treated as duty for any specified purpose the period of absence should be treated as 'non-duty' ..... not be forfeited." 10. The respondents have filed their counter-affidavit stating, inter alia, that the petitioner was charged for an offence under Section 302 read with Section 34 IPC for his involvement in a crime committed in between 29.3.1992 and 30.3.1992 and the learned Sessions Judge convicted him under Section 302 read with Section 34 IPC. Therefore, the respondents had dismissed him from service as he was working as a Junior Operator (pump) under the respondent department and the petitioner did not challenge the dismissal order. Therefore, the respondents had dismissed him from service as he was working as a Junior Operator (pump) under the respondent department and the petitioner did not challenge the dismissal order. When the Division Bench of the High Court by its judgment dated 22.7.1996 acquitted him of the offence, the competent authority ordered to reinstate him into service in continuation of his past service, but denied the back wages, as according to the respondents, consequent upon his acquittal, he is entitled to the reinstatement for the reason that his service was terminated on the basis of the conviction. It is further stated by the respondents that question of back wages would be considered if the respondents had taken action by way of disciplinary proceedings and the action of the respondent was found to be unsustainable in law and he was unlawfully prevented from discharging the duties. In this case, the petitioner was arrested on 3.4.1992 night by the police following a police case lodged in the Bishalgarh police station by the third party. 11. Further case of the respondents that the period of suspension as well as dismissal was treated as 'non-duty' as per the provisions of F.R. 54(3) (1) as Section 54(3)(1) provides that if no order is passed directing that the period of absence be treated as duty for any specified purpose, the period of absence should be treated as 'non-duty'. It was ordered that the past service which the petitioner had rendered shall not be forfeited and that the petitioner shall not be entitled to any further financial benefit over and above which was paid to him during the period of suspension and dismissal till his reinstatement. 12. It is also stated by the respondents that the petitioner was responsible for his involvement in the criminal case and the department was in no way responsible for this and the department was deprived of his service on account of his conviction and incarceration in jail. Therefore, the period of suspension as well as dismissal from service till his reinstatement should be treated as 'non-duty' and as such he is not entitled to get any financial benefit. 13. Therefore, the period of suspension as well as dismissal from service till his reinstatement should be treated as 'non-duty' and as such he is not entitled to get any financial benefit. 13. The respondents have further contended in their counter that the Hon'ble High Court vide order dated 7.2.2007 passed in Civil Rule No. 617 of 1997 had set aside and quashed the later part of the order of the respondent No. 3 dated 3.12.1996 on the ground that no reasonable opportunity was given to the petitioner before issuing the order dated 3.12.96. So fresh show cause notice dated 18.5.2007 was issued to the petitioner whereby he was asked to explain why the period of suspension shall not be treated as 'non-duty' and this was done following the order of the Hon'ble Court and the Hon'ble Court granted liberty to the respondent authority regarding how they would treat the period of absence of the petitioner by following the principles of natural justice. So within the permissible limit as adumbrated in the judgment, the authority issued the show cause notice and the reply to the said show cause notice was not found acceptable by the authority. So until he was exonerated by the order of the Hon'ble Court, dismissal was perfect and there is no reason to hold that the dismissal was erroneous. The petitioner did not challenge such dismissal order and accepted the same till he was reinstated by order dated 3.12.1996. The order regarding suspension as well as dismissal from service were issued following his detention in police custody as well as in jail custody beyond 48 hours and his conviction by the learned Sessions Judge, West Tripura, Agartala in connection with a criminal case and the above action was taken by the authority as per CCS (CC & A) Rules, 1965. 14. Mr. 14. Mr. Deb, learned counsel for the petitioner while urging for setting aside the impugned show cause notice (Annexure-8 to the writ petition) and order dated 3.7.2007 as impugned (Annexure P-11 to the writ petition) would contend that when an employee is arrested and remained in the police custody for more than 48 hours, on being informed it is the duty of the employer to put the said employee under suspension and thereafter, if he is convicted and sentenced, then the said employee is required to be dismissed from service immediately and the convict employee cannot question the dismissal order. Admittedly the petitioner was arrested in a criminal case and consequent thereto, he was convicted and sentenced for which he was suspended and dismissed from service, but after acquittal he was reinstated and the period of suspension was treated as non-duty, but the authority did not give any reason as to why the period of suspension of the petitioner shall not be treated as on duty. The learned single Judge in Civ. Rule No. 617 of 1997 set aside the later part of the order dated 3.12.96 treating the petitioner's period of absence as 'non-duty' and also ordered that disentitlement of the petitioner to get any financial benefit during the said period are vitiated in law, meaning thereby, the petitioner is entitled to get back wages for the period of suspension although the authority was given a liberty to decide the period of absence following principles of natural justice in terms of the observation made in the said judgment and order. He also contended that admittedly no separate departmental proceeding has been drawn up against the petitioner by the respondent authority, only a show cause notice was issued (Annexure-4 to the writ petition) wherein it is mentioned that claim of the petitioner was not acceptable to the department. He further contended that having acquitted in the criminal case; the petitioner was fully exonerated and entitled to get the full pay and allowances treating the said period of suspension as on duty. 15. He further contended that having acquitted in the criminal case; the petitioner was fully exonerated and entitled to get the full pay and allowances treating the said period of suspension as on duty. 15. In support of his aforesaid contention, he has placed reliance on a decision of the Gauhati High Court in Sri Krishna Mohan Dutta vs. The State of Tripura, (1988) 2 GLR 332, particularly Para-5 of the said Report, wherein a Division Bench of Gauhati High Court held that if an employee is put under suspension because of any criminal proceeding and no separate departmental proceeding has been drawn up and thereafter, he is reinstated on being acquitted by the criminal court, he is entitled to get full salary for the period of suspension even if the acquittal is on the basis of benefit of doubt. Para-5 reads as under: "5. In Duttatrava Vasudeo Kulkarni v. Director of Agriculture 1984(3) SLR 83, a Division Bench of the Bombay High Court held that an employee is entitled to full pay and allowances as if he had not been suspended-the concept of benefit of doubt is irrelevant. According to their Lordships acquittal by giving benefit of doubt means acquittal for all purpose and amounts to " acquitted of blame". We respectfully agree with the law laid down by the Bombay High Court and hold that if an employee is put under suspension because of any criminal proceeding and no separate departmental proceeding has been drawn up and thereafter he is reinstated on being acquitted by the criminal court is entitled to get full salary for the period of suspension even if the acquittal is on the basis of benefit of doubt". 16. He has also placed reliance on another decision of the Gauhati High Court in Lnk Chhotelal vs. Union of India & ors, (1989) 1 GLR 307, wherein the Division Bench of the Gauhati High Court considered the case of the petitioner therein who was a Sepoy of the Central Reserve Force (CRPF) involved in a criminal case and suspended thereafter, but ultimately acquitted, but the respondent employer cancelled the petitioner's name in the approved list for promotion to the higher rank though on acquittal he was reinstated, but was not granted full pay and allowances nor was his name listed in the approved list of persons fit for promotion. In that case, the Division Bench directed the respondents to pay full pay and allowances for the period during which he was under suspension by treating the period of suspension as period spent on duty for all purposes. 17. He has also placed reliance on a decision of the Apex Court in Brahma Chandra Gupta vs. Union of India, (1984) 2 SCC 433 , particularly Para-6 of the said Report which is as follows: "6. Mr. R.K. Garg, learned counsel for the appellant wanted us to examine the scope and ambit of Article 193 and Mr. Gujaral learned counsel for the Union of India was equally keen on the other side to do the same thing. We steer clear of both. The appellant was a permanent UDC who has already retired on superannuation and must receive a measure of socio-economic justice. Keeping in view the facts of the case that the appellant was never hauled up for departmental enquiry, that he was prosecuted and has been ultimately acquitted, and on being acquitted he was reinstated and was paid full salary for the period commencing from his acquittal, and further that even for the period in question the concerned authority has not held that the suspension was wholly justified because three-fourth of the salary is ordered to be paid, we are of the opinion that the approach of the trial court was correct and unassailable. The learned trial Judge on appreciation of facts found that this is a case in which full amount of salary should have been paid to the appellant on his reinstatement for the entire period. We accept that as the correct approach. We accordingly allow this appeal, set aside the judgment of first appellate court as well of the High Court and restore the one of trial court with this modification that the amount decreed shall be paid with 9 per cent interest p.a. from the date of suit till realization with costs throughout." 18. He has further referred to the decision of the Apex Court in Jaipur Vidyut Vitran Nigam Limited & ors Vs. Nathu Ram, (2010)1 SCC 428 . 19. Mr. Majumder, learned Govt. Advocate appearing for the state respondents submits that each case requires to be considered in its own backdrop. He has further referred to the decision of the Apex Court in Jaipur Vidyut Vitran Nigam Limited & ors Vs. Nathu Ram, (2010)1 SCC 428 . 19. Mr. Majumder, learned Govt. Advocate appearing for the state respondents submits that each case requires to be considered in its own backdrop. In this case, the petitioner was involved himself in a criminal case and on being arrested and detained in the police custody for more than 48 hours, the petitioner was suspended from service. Thereafter, when he was convicted and sentenced by the learned Sessions Judge, the competent authority passed the dismissal order and later, on acquittal, he was reinstated in service. Under these circumstances, the petitioner is not entitled to the payment of back wages for his suspension as well as dismissal period and the respondent authority committed no error in passing his dismissal order which was not made under challenge. He further submits that if an employee got involved in a criminal case and initially convicted by the trial court and subsequently on appeal got acquitted, the employer cannot in any manner be found faulted with for having kept him out of service and the authority can deny the payment of back wages for the period he was not in service. 20. In support of his contention, Mr. Majumder referred to a decision of the Apex Court in Hukmi Chand v. Jhabua Cooperative Central Bank Ltd. Jhabua (M.P.) and another (1998) 2 SCC 291 , particularly Para-7 of the said Report. In that case, the appellant was terminated following his conviction and sentence in a criminal case. His appeal against the conviction and sentence was dismissed, but in revision he was acquitted by the High Court. The question whether he was entitled to full pay and allowances during the period of his dismissal was considered and the Apex Court held that the right to reinstatement on acquittal does not carry with it by necessary implication a right to back wages under Rule 49(ii). Para-7 of the said judgment is reproduced hereunder. "7. It is also contended by the appellant that in his case, not awarding of back wages is unjustified and the order of reinstatement ought to have granted him back wages. The grant of back wages under sub-rule (ii) is at the discretion of the employer. Para-7 of the said judgment is reproduced hereunder. "7. It is also contended by the appellant that in his case, not awarding of back wages is unjustified and the order of reinstatement ought to have granted him back wages. The grant of back wages under sub-rule (ii) is at the discretion of the employer. In the present case looking to the fact that both the trial court as well as the appellate court have convicted the appellant and it was only in revision that he was acquitted on the ground that the prosecution had failed to prove the charges, if the employer, after taking into account all relevant circumstances, decides not to grant back wages to the appellant, such exercise of discretion cannot be considered as totally unreasonable requiring our intervention at this stage. It is to be noted that the appellant was reinstated immediately after the order of acquittal." 21. A reference was made to the decision of the Apex Court in Jaipur Vidyut Vitran Nigam Limited & ors Vs. Nathu Ram, (2010) 1 SCC 428 and contended that when a statute has conferred certain discretion on the employer to take a decision and if the employer exercises his discretion giving reasons, then a Court should not normally interfere with such an discretionary order. In the instant case, the employer-respondent exercised its power under Rule 54(3) as the petitioner is not entitled to get the benefit of F.R. 54(2). 22. In Ranchhodji Chaturji Thakore Vs. Superintendent Engineer, Gujrat Electricity Board, Himmatnagar (Gujrat) and another, (1996) 11 SCC 603 , wherein the Apex Court considered the case of the petitioner therein who was admittedly charged for an offence under Section 302 read with Section 34 IPC for his involvement in a crime committed and consequent thereto had convicted under the aforesaid Sections and sentenced to undergo imprisonment for life and challenged the order of conviction and sentence, he was acquitted from the charge. Consequently, he was reinstated, but denied back wages. Before the Apex Court, the question came up whether the petitioner therein is entitled to back wages. While deciding the issue, the Apex Court held that the question of back wages would be considered only if the respondents have taken action by way of disciplinary proceedings and the action was found to be unsustainable in law and he was unlawfully prevented from discharging the duties. While deciding the issue, the Apex Court held that the question of back wages would be considered only if the respondents have taken action by way of disciplinary proceedings and the action was found to be unsustainable in law and he was unlawfully prevented from discharging the duties. In that context, his conduct becomes relevant. Each case requires to be considered in its own backdrop. 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. (emphasis supplied) 23. He has also placed reliance on another decision of the Apex Court in Union of India & ors Vs. Jaipal Singh, (2004) 1 SCC 121 , a case almost identical to the facts involved in the instant case. 24. He has also placed reliance on another decision of the Apex Court in State Bank of India & anr. Vs. Mohammed Abdul Rahim, (2013) 11 SCC 67 , particularly, Para-10 and 12 which are as follow: "10. The issue relating to entitlement to back wages, however, stands on a somewhat different footing. While in Ranchhodji Chaturji Thakore v. Gujarat Electricity Board, (1996) 11 SCC 603 , Union of India v. Jaipal Singh, (2004)1 SCC 121 and Baldev Singh v. Union of India, (2005) 8 SCC 747 , the basis of refusal of back wages by this Court would appear to be the inability of the employer to avail of the service of the employee due to his incarceration in jail, in Banshi Dhar v. State of Rajasthan, (2007)1 SCC 324 the refusal of back wages by this Court was in a situation largely similar to the case before us, namely, where the employee was all along on bail and was thus available for work. 11. In Banshi Dhar v. State of Rajasthan, (2007)1 SCC 324 , this Court answered the question against the employee by holding that grant of back wages is not automatic and such an entitlement has to be judged in the context of the totality of the facts of a given case. It is on such consideration that back wages were declined. In Banshi Dhar v. State of Rajasthan, (2007)1 SCC 324 , this Court answered the question against the employee by holding that grant of back wages is not automatic and such an entitlement has to be judged in the context of the totality of the facts of a given case. It is on such consideration that back wages were declined. In the present case, it will not even be necessary for the Court to perform the said exercise and delve into the surrounding facts and circumstances for the purpose of adjudication of the entitlement of the respondent to back wages in view of the provisions of Section 10(1)(b)(i) of the Act. The said provisions impose a clear bar on a banking company from employing or continuing to employ a person who has been convicted by a criminal court of an offence involving moral turpitude. No discussion as to the meaning of the expression "moral turpitude" is necessary having regard to the nature of the offences alleged against the respondent, namely, under Section 498-A IPC and section 4 of the Dowry Prohibition Act, 1961. No doubt, the respondent was not in custody during the period for which he has been denied back wages inasmuch as the sentence impose on him was suspended during the pendency of the appeal. But what cannot be lost sight of is that the conviction of the respondent continued to remain on record until it was reversed by the appellate court on 22.2.2002. During the aforesaid period there was, therefore, a prohibition in law on the appellant Bank from employing him. If the respondent could not have remained employed with the appellant Bank during the said period on account of the provisions of the Act, it is difficult to visualise as to how he would be entitled to payment of salary during that period. His subsequent acquittal though obliterates his conviction, does not operate retrospectively to wipe out the legal consequences of the conviction under the Act. The entitlement of the respondent to back wages has to be judged on the aforesaid basis. His reinstatement, undoubtedly, became due following his acquittal and the same has been granted by the appellant Bank. 12. The respondent was acquitted on 22.2.2002, the demand for reinstatement was made by him on 22.4.2002 and he was reinstated in service by the appellant bank on 7.11.2002. His reinstatement, undoubtedly, became due following his acquittal and the same has been granted by the appellant Bank. 12. The respondent was acquitted on 22.2.2002, the demand for reinstatement was made by him on 22.4.2002 and he was reinstated in service by the appellant bank on 7.11.2002. On the view that we have taken, at the highest, what can be said in favour of the respondent is that he is entitled to wages from the date he had lodged the demand for the same following his acquittal, namely, from 22.4.2002, until the date of his reinstatement, if the same has not already been granted by the appellant Bank." 25. Mr. Majumder further submits that the learned Single Judge while deciding the later part of the order dated 3.12.96 did not direct the respondent to treat the period of absence of the petitioner as on duty, rather liberty was granted to the respondents to decide as to how they would treat the period of absence of the petitioner by duly following the principle of natural justice in terms of the observations made in the said judgment. The respondent authority after considering the judgment of the learned Single Judge in Civ. Rule 617 of 1997 passed the impugned order wherein an opportunity was provided to the petitioner. 26. He finally contended that the respondents are in no way related for the involvement of the petitioner in a criminal case and his conviction for which he was dismissed. His further contention is this that admittedly the employer did not get services of the petitioner while he was in jail and therefore, the respondents cannot be asked to consider the period of suspension of the petitioner as on duty and taxed for paying pay and allowances to the petitioner when admittedly, the employer did not get the services of the petitioner. 27. Upon going through the rival contention and the Law Reports cited, question arises for decision is that whether Rule 54 of the Fundamental Rules is applicable to the case of the petitioner and whether he is entitled to pay salary for the period of suspension as well as from the date of dismissal to the date of reinstatement on his acquittal in criminal case. 28. 28. This Court has gone through the F.R. 54 which is as under: F.R. 54(1) When a Government servant who has been dismissed, removed or compulsorily retired is reinstated as a result of appeal or review or would have been so reinstated but for his retirement on superannuation while under suspension or not, the authority competent to order reinstatement shall consider and make a specific order-- (a) regarding the pay and allowances to be paid to the Government servant for the period of his absence from duty including the period of suspension preceding his dismissal, removal or compulsory retirement, as the case may be: and (b) Whether or not the said period shall be treated as a period spent on duty. (2) Where the authority competent to order reinstatement is of opinion that the Government servant who had been dismissed, removed or compulsorily retired has been fully exonerated, the Government servant shall, subject to the provisions of sub-rule (6), be paid the full pay and allowances to which he would have been entitled, had he not been dismissed, removed or compulsorily retired or suspended prior to such dismissal, removal or compulsory retirement, as the case may be: Provided that where such authority is of opinion that the termination of the proceedings instituted against the Government servant had been delayed due to reasons directly, attributable to the Government servant it may, after giving him an opportunity to make his representation within sixty days from the date on which the communication in this regard is served on him and after considering the representation, if any, submitted by him, direct, for reasons to be recorded in writing, that the Government servant shall, subject to the provisions of sub-rule (7), be paid for the period of such delay, only such amount (not being the whole) of such pay and allowances as it may determine. (3) In a case falling under sub-rule (2), the period of absence from duty including the period of suspension preceding dismissal, removal or compulsory retirement, as the case may be, shall be treated as a period spent on duty for all purposes. (3) In a case falling under sub-rule (2), the period of absence from duty including the period of suspension preceding dismissal, removal or compulsory retirement, as the case may be, shall be treated as a period spent on duty for all purposes. (4) In cases other than those covered by sub-rule(2) (including cases where the order of dismissal, removal or compulsory retirement from service is set aside by the appellate or reviewing authority solely on the ground of non-compliance with the requirements of Clause (1) or Clause (2) of Article 311 of the Constitution and no further inquiry is proposed to be held) the Government servant shall, subject to the provisions of sub-rules (5) and (7), be paid such amount (not being the whole) of the pay and allowances to which he would have been entitled, had he not been dismissed, removed or compulsorily retired or suspended prior to such dismissal, removal or compulsory retirement, as the case may be, as the competent authority may determine, after giving, notice to the Government servant of the quantum proposed and after considering the representation, if any, submitted by him in that connection within such period (which in no case shall exceed sixty days from the date on which the notice has been served) as the case may be specified in the notice. (5) In a case falling under sub-rule (4), the period absence from duty including the period of suspension preceding his dismissal, removal or compulsory retirement, as the case may be, shall not be treated as a period spent on duty, unless the competent authority specifically directs that it shall be treated so for any specified purpose: Provided that, if the Government servant so desires, such authority may direct that the period of absence from duty including the period of suspension preceding his dismissal, removal or compulsory retirement, as the case may be, shall be converted into leave of any kind due and admissible to the Government servant. (6) The payment of allowances under sub-rule (2) or sub-rule (4) shall be subject to all other conditions under which such allowances are admissible. (7) The amount determined under the proviso to sub-rule (2) or under sub-rule (4) shall not be less than the subsistence allowance and other allowances admissible under Rule 53. (6) The payment of allowances under sub-rule (2) or sub-rule (4) shall be subject to all other conditions under which such allowances are admissible. (7) The amount determined under the proviso to sub-rule (2) or under sub-rule (4) shall not be less than the subsistence allowance and other allowances admissible under Rule 53. (8) Any payment made under this rule to Government servant on his reinstatement shall be subject to adjustment of the amount, if any, earned by him through an employment during the period between the date of removal, dismissal or compulsory retirement, as the case may be, and the date of reinstatement. Where the emoluments admissible under this rule are equal to or less than the amounts earned during the employment elsewhere, nothing shall be paid to the Government servant." 29. F.R. 54 is applicable only to the cases of reinstatement (on revocation of the suspension order) where an order of dismissal, removal or compulsory retirement passed in a departmental proceeding is set aside by the employer. In the case in hand, admittedly there was no departmental proceedings consequent upon the criminal case initiated against the petitioner due to his alleged involvement in a murder case. More so, the order of suspension was passed as he was detained in custody for more than forty-eight hours after his arrest. Therefore, it can be easily said that F.R. 54 is not applicable in the case in hand. Though the respondents referred to F.R. 54(3)(1) in their reply, but there is no such provision in the F.R. F.R. 54 says, in a case falling under sub-rule (2), the period of absence from duty including the period of suspension proceeding dismissal, removal or compulsory retirement, as the case may be, shall be treated as a period spent on duty for all purposes. The quoted portion in the reply is, in fact, relating to Govt. of India's orders and in Note No. 3, it is clarified that if no order is passed directing that the period of absence be treated as duty for any specific purpose, the period of absence should be treated as 'non duty' and in such event, the past service (i.e.), service rendered before dismissal, removal, compulsory retirement or suspension will not be forfeited. 30. 30. Let us also see the provisions of Rule 54 B of the Fundamental Rules wherein the authority who has to suspend the employee has been given certain power to pass a specific order as to whether the period of suspension followed by dismissal ending with reinstatement would be treated the period spent on duty or not. If we read F.R. 54 B along with the Govt. of India's order, Note No. 3, as quoted by the respondents in their reply, then it is clear that if no order is passed that the period of suspension ending with reinstatement shall be treated as a period spent on duty, then the same will be obviously treated not spent on duty. In the instant case, admittedly, the authority passed the order that the period of suspension and subsequently dismissal till the date of reinstatement should be treated as non-duty in exercise of its power under F.R. 54 B, not under F.R. 54 and such order cannot be said to be illegal or unfair. Mere wrong mentioning of the provisions of the Rules would not itself disentitle the authority to pass the order impugned when it has discretionary power for passing such an order. 31. Now question is whether the order of suspension which was passed due to detention of the petitioner for more than forty-eight hours in custody on his arrest is valid or not. It is to be noted here that neither the order of suspension nor the order of dismissal is under challenge before this court. 32. In Joypur Vidyut Vitran Nigam Limited & ors (supra), as referred to by Mr. Deb, Nathu Ram, the respondent therein appointed as casual labour was allegedly caught by the Anti-Corruption Bureau while accepting bribe, as a result of which he was suspended from service. Thereafter, he was found guilty of committing offence under Section 161 of the Penal Code and under Section 5(1)(d) read with Section 5(2) of the Prevention of Corruption Act, 1947 and sentenced to suffer R.I. for one year with a fine of Rs. 300/- and an appeal was carried out by the respondent against the said order of conviction and sentence and ultimately acquitted from the charge leveled against him. On acquittal he was reinstated in service from the date of acquittal and was given full pay and allowances for the period of suspension. 300/- and an appeal was carried out by the respondent against the said order of conviction and sentence and ultimately acquitted from the charge leveled against him. On acquittal he was reinstated in service from the date of acquittal and was given full pay and allowances for the period of suspension. In the aforesaid case, it is the employer who had lodged the complaint and as a result of which a criminal case was initiated and consequent thereupon, he was convicted and ultimately acquitted. But in the case in hand, the employer is in no way connected with the criminal prosecution. Thus, the fact of the aforesaid case is totally different than the case in hand and as such, the aforesaid case in no way helps the petitioner. 33. In Jaipal Singh (supra), the Apex Court considered almost a similar question arises in the instant case and ultimately held, inter alia, "if prosecution, which ultimately resulted in acquittal of the person concerned was at the behest of 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 it 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. 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." 34. It is also stated by the Apex Court that "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." 35. In the instant case, after the order passed in Civ. Rule No. 617 of 1997, the authority i.e., the employer provided the petitioner opportunity to show cause vide order dated 18.5.2007 (Annexure P 8) and against the said show cause, the petitioner also submitted a reply on 6.6.2007 (Annexure P 10). According to this Court, the petitioner is not entitled to challenge the aforesaid show cause (Annexure P 8). 36. In the State Bank of India & anr. (supra), the Apex Court while dealing with the similar matter, observed, inter alia, that "no doubt, the respondent was not in custody during the period for which he has been denied back wages inasmuch as the sentence imposed on him was suspended during the pendency of the appeal. But what cannot be lost sight of is that the conviction of the respondent continued to remain on record until it was reversed by the appellate court on 22.2.2002. During the aforesaid period there was, therefore, a prohibition in law on the appellant Bank from employing him. If the respondent could not have remained employed with the appellant Bank during the said period on account of the provisions of the Act, it is difficult to visualize as to how he could be entitled to payment of salary during that period. His subsequent acquittal though obliterates his conviction, does not operate retrospectively to wipe out the legal consequences of the conviction under the Act. His subsequent acquittal though obliterates his conviction, does not operate retrospectively to wipe out the legal consequences of the conviction under the Act. The entitlement of the respondent to back wages has to be judged on the aforesaid basis. His reinstatement, undoubtedly, became due following his acquittal and the same has been granted by the appellant Bank." 37. In the instant case, the petitioner was reinstated in service after the order of acquittal and he was also provided all the financial benefits. The decision of the Gauhati High Court referred to by Mr. Deb in no way helps the petitioner as in that decision their lordship did not have any opportunity to consider the case of Jaipal Singh (supra) as well as State Bank of India & anr. (supra) which were decided later on. 38. The petitioner was acquitted by the judgment and order dated 22.7.1996 in Criminal (J) Appeal No. 28 of 1994 and thereafter on 9.12.1996, the petitioner made a demand for getting his full salary for the period of suspension and dismissal and thereafter, the authority has decided as to whether the period of absence of the petitioner should be treated as on duty or not and ultimately, passed the impugned order wherein it is specifically mentioned that the employer is not responsible for conviction of the petitioner and thus the employer cannot be taxed for paying the pay and allowance for the period the petitioner had not rendered any Govt. duty. Therefore, accordingly to this Court, there is no wrong in the impugned order. The petitioner is entitled to back wages from the date of his acquittal which he has already been paid. 39. In view of the above discussion, the instant writ petition is devoid of merit. Hence, the same is dismissed.