JUDGMENT : S.N. Prasad, J - Heard learned counsels for the petitioner and learned counsel for the opposite party Nos. 1 to 3. This writ petition has been filed for following reliefs:-- "(i) For quashing the order of dismissal dated 05.01.2005 passed by the General Manager (Personnel) and Competent Authority of Andhra Bank (Annexure-7) by which the petitioner has been dismissed from service. (ii) The order dated 16.01.2005 passed by the Appellate Authority confirming the order as contained in Annexure-7 passed by the Disciplinary Authority. (iii) Quashing the part of the order dated 8.10.2009 issued by the General Manager (HR) and Competent Authority by which the back wages for the period of dismissal has been denied and application of principles of "no work and no pay" to release all consequential benefits." 2. The case of the petitioner is that he had joined in his service as a Clerk (Temporary) in Andhra Bank at the Head Office, Hyderabad on 12.10.1973. Then he was confirmed and permanently appointed as Clerk in Andhra Bank at the Head Office 27.03.1974. The petitioner was promoted as Officer in Scale-I (Junior Management) and posted at Pentavellie Branch, Andhra Pradesh w.e.f. 31.12.1980 and then promoted to Scale-II (Middle Management) and posted as Branch Manager, Karwan Branch, Hyderabad, A.P. w.e.f. 31.10.1988. The petitioner thereafter transferred and posted at Bills Department, Fort Branch, Bombay on 09.07.1991 and thereafter posted at funds Section of Funds and Securities Department of the said Fort Branch, Bombay w.e.f. 19.11.1991. 3. While the petitioner was posted at Funds and Securities Department of the Fort Branch in Mumbai an allegation was levelled against him regarding credit facilities of Rs. 7 Crore having been extended in favour of one Hiten Prasad Dalai who was a Stock Broker on the basis of Banker's Cheque dated 04.12.1991 issued by the Bank of Karad, Fort Branch, Mumbai in favour of Hiten Prasad Dalai. 4. Regarding this action of the petitioner along with two others, enquiry was conducted and was found that irregularities have been committed by the petitioner along with two others and thereafter one F.I.R. was lodged on 02.06.1993 bearing No. RC. 3(BSC)/93/BOM under Sections 120-B read with Section 13(1) (d) of Prevention of Corruption Act, 1988 and for the offences under Section 420, 468, 471 and 477(A) of the I.P.C. 5. 3(BSC)/93/BOM under Sections 120-B read with Section 13(1) (d) of Prevention of Corruption Act, 1988 and for the offences under Section 420, 468, 471 and 477(A) of the I.P.C. 5. The matter was investigated by the C.B.I. and thereafter the charge-sheet was submitted and regular trial was started being Special Case No. 5 of 1994 before the Special Court at Mumbai. Simultaneously, the Bank has also initiated a departmental proceeding against the petitioner and three senior officers of the Bank after following due procedure as provided in the appeal and discipline rule Enquiry Officer has found the charges levelled against the petitioner proved which was accepted by the Disciplinary Authority, vide Order dated 08.01.1998, the petitioner was imposed with the punishment of "reduction of Pay by one stage" with immediate effect (Annexure-2). 6. The petitioner has preferred an appeal against the order dated 08.01.1998 which has been confirmed by the Appellate Authority vide order dated 24.03.1998(Annexure-3). 7. After the order of punishment having been passed on 08.01.1998 the competent court of criminal jurisdiction has pronounced its judgment dated 19.10.2004 in S.C. Case No. 5 of 1994 the petitioner was found guilty for the offence and was convicted for the offence under Section 120(B), 409, 467, 471 of IPC read with Section 13(1)(c), 13(1)(d) and 13(2) of Prevention of Corruption Act, sentenced to undergo rigorous imprisonment for one month and pay of fine of Rs. 1000/-. 8. The petitioner has filed an appeal against the order of conviction before the Hon'ble Supreme Court being in Criminal Appeal No. 1477 of 2004. The Bank has passed an order dated 05.01.2005 dismissing the petitioner from service in exercise of power under Section 10(1)(b)(i) of Banking Regulation Act, 1949 with the order that terminal benefits will be settled and paid to the petitioner in due course. 9. The petitioner at this stage has challenged the order of dismissal before this Court vide W.P.(C) No. 2913 of 2005 and this Court has directed the petitioner to prefer an appeal before the Competent Authority. 10. 9. The petitioner at this stage has challenged the order of dismissal before this Court vide W.P.(C) No. 2913 of 2005 and this Court has directed the petitioner to prefer an appeal before the Competent Authority. 10. In pursuance to the order passed by this Court the petitioner has preferred an appeal before the Competent Authority who has passed an order on 16.08.2005 declining to interfere with the order of dismissal on the ground that the petitioner has been convicted for the criminal charge since there is specific provision under Section 10(1)(b)(i) of the Banking Regulation Act, 1949 as such only by virtue of interim order passed by the Hon'ble Supreme Court keeping sentence in abeyance the order of dismissal cannot be recalled. 11. The Criminal Appeal pending before the Hon'ble Supreme Court, has ultimately been decided on 07.08.2009 which has also been reported in Mir Nagvi Askari Vs. C.B.I., AIR 2010 SC 528 : (2009) 11 JT 191 : (2009) 11 SCALE 174 : (2009) 15 SCC 643 : (2009) 96 SCL 248 : (2009) 13 SCR 124 in the case of Mir Nagvi Askari vrs. C.B.I. whereby and hereunder the order of conviction passed against the petitioner by the Trial Court has been quashed. 12. After quashing of the order of conviction, the petitioner has made representation before the authorities for recall of the order of dismissal, the authorities have passed an order dated 8.10.2009 reinstated the petitioner in service but without back wages on the principles of "no work and no pay". But the period of dismissal will be treated as service for the purpose of seniority, computation of terminal and pensionary benefits. 13. The petitioner originally, has preferred the instant writ petition for quashing the order of dismissal but during the pendency of the writ petition after passing of the order of reinstatement on 8.10.2009 has filed misc. petition for amending the prayer and accordingly the misc. petition being Misc. Case No. 16073 of 2014 was allowed vide order dated 15.10.2014. 14. 13. The petitioner originally, has preferred the instant writ petition for quashing the order of dismissal but during the pendency of the writ petition after passing of the order of reinstatement on 8.10.2009 has filed misc. petition for amending the prayer and accordingly the misc. petition being Misc. Case No. 16073 of 2014 was allowed vide order dated 15.10.2014. 14. In course of argument, learned senior counsel for the petitioner has submitted that since the order of reinstatement has been passed by the Bank on 08.10.2009 and as such only question which is to be decided by this Court is regarding the entitlement of the petitioner with respect to back wages which has been denied on the ground of the principle of "no work and no pay". 15. Challenging the part of the order dated 08.10.2009 by which the back wages has been denied learned senior counsel for the petitioner has submitted that the petitioner has wrongly been dismissed from service because in the departmental proceeding the petitioner has already been punished with the punishment of withholding one annual increment and thereafter on the ground of conviction in criminal case by the trial Court he was dismissed from service w.e.f. 05.01.2005. 16. Thus the sole ground taken by the authority in dismissing the petitioner from service was conviction in the criminal case and as such the moment criminal case has ended in acquittal, the petitioner will be deemed to be in employment and he will be entitled to get entire back wages because the petitioner has been deprived from discharging his duty forcefully having no fault of his own. 17. Learned senior counsel for the petitioner has relied upon judgment as reported in Somesh Tiwari Vs. Union of India (UOI) and Others, AIR 2009 SC 1399 : (2009) 1 JT 96 : (2009) 1 SCALE 63 : (2009) 2 SCC 592 : (2009) 1 SCC(L&S) 411 : (2009) 3 SLR 506 : (2009) AIRSCW 854 . 18. 17. Learned senior counsel for the petitioner has relied upon judgment as reported in Somesh Tiwari Vs. Union of India (UOI) and Others, AIR 2009 SC 1399 : (2009) 1 JT 96 : (2009) 1 SCALE 63 : (2009) 2 SCC 592 : (2009) 1 SCC(L&S) 411 : (2009) 3 SLR 506 : (2009) AIRSCW 854 . 18. Per contra the learned counsel for the Bank has contested the case by stating that the petitioner is not entitled to get the benefit of back wages on the ground that there is charge of moral turpitude and on that ground a departmental proceeding was initiated in which the charge levelled against the petitioner was found to be proved which was accepted by the Disciplinary Authority and thereafter the order of punishment was imposed upon him withholding one annual increment vide order dated 08.10.2009, the said order was never been assailed before the higher Court. 19. Subsequently, the petitioner was convicted in the criminal cases sentence to go rigorous imprisonment for one month and a fine of Rs. 1000/-. 20. There is a provision under Section 10(1)(b)(i) of Banking Regulation Act, 1949 that in case of conviction of an employee in the criminal case the employee shall be dismissed from service as such invoking the said power the petitioner was dismissed from service. 21. It has further been submitted that in case of charge of corruption against a public servant, the said public servant is not entitled to remain in service and the authority also cannot wait for the outcome of the appeal otherwise it will lead to sending a wrong message to other public servant hence Bank has taken a conscious decision by dismissing the petitioner from service. 22. However, after acquittal of the petitioner by the order passed by the Hon'ble Supreme Court Bank has shown its bona fide and has reinstated the petitioner in his service but without any back wages because during the said period, the petitioner has not performed any duty hence applying principle of "no work and no pay" back wages has been denied. 23. It has further been contended that now it is settled that back wages can only be paid if the employee who is out of service is coming forward with a specific case that he was not gainfully been employed during the said period. 23. It has further been contended that now it is settled that back wages can only be paid if the employee who is out of service is coming forward with a specific case that he was not gainfully been employed during the said period. But from perusal of entire pleading it is apparent that there is no specific statement made by the petitioner that he was not gainfully employed and as such no direction can be issued by this Court regarding release of back wages. 24. Heard the parties and perused the documents on record. 25. The undisputed question of fact in this case is that a departmental proceeding along with a criminal case was initiated against the petitioner for the offence under various Sections of I.P.C. and under the Prevention of Corruption Act. 26. The departmental proceeding has been ended with the proof of charges imposition of major punishment withholding one annual increment With cumulative effect. 27. The charge before the Department was that "the petitioner has released credits unauthorisedly in the account of Sri H.P. Dalai on two occasions involving huge amounts. It is also alleged that an amount of Rs. 40.00 crores was borrowed and lent on 30.11.1991 without any directions from Central Accounts Department, Central Office. Thus you have failed to discharge your duties with diligence and devotion." 28. These charges relates to the involvement of moral turpitude by the petitioner which was found to be proved by the Enquiry Officer, thereafter order of punishment was passed, which was challenged by the petitioner before the Appellate Authority and the same was confirmed by the Appellate Authority on 24.03.1998. 29. But the order passed by the Disciplinary Authority or Appellate has not been challenged before any court of law which suggests that the order of punishment passed by the Disciplinary Authority was accepted by the petitioner and as such the charge levelled against the petitioner was also deemed to be accepted by him. Thereafter criminal case was ended with the order of conviction for the offences under various Sections of I.P.C. and Prevention of Corruption of Act. 30. All the Banks in the country is running under the statutory provision known as Banking Regulation Act, 1949 where there is provision governing the service conditions and other requirements, in which there is a provision as contained in Regulation 10(1)(b)(i) which are reproduced herein below:-- "10. 30. All the Banks in the country is running under the statutory provision known as Banking Regulation Act, 1949 where there is provision governing the service conditions and other requirements, in which there is a provision as contained in Regulation 10(1)(b)(i) which are reproduced herein below:-- "10. Prohibition of employment of managing agents and restrictions on certain forms of employment (1) No banking company (b) shall employ or continue the employment of any person- (i) who is or at any time has been, adjudicated insolvent, or has suspended payment or has compounded with his creditors, or who is, or has been, convicted by a criminal court of an offence involving moral turpitude." 31. In view of the said regulation the Bank has dismissed the petitioner from service vide order dated 05.01.2005 (Annexure-7) the said order of dismissal was challenged before this Court vide W.P.(C) No. 2913 of 2005 the same was disposed of directing the authority to decide the appeal (Annexure-8). 32. Accordingly, the petitioner has preferred an appeal in terms of the order against the order of dismissal dated 05.01.2005 the same was disposed of confirming the order of dismissal on the ground that in view of order of conviction having been passed by the competent court of criminal jurisdiction the order of dismissal cannot be interfered with in view of the specific provision as contained in Section 10(1)(b)(i) of Banking Regulation Act, 1949. 33. Moreover, the ground taken by the petitioner is that the order of sentence since been suspended by the Hon'ble Supreme Court, the same will be deemed to be stay of conviction and as such the order of dismissal may be recalled but that has not been considered on the ground that the order of conviction was in operation since the Hon'ble Supreme Court has not passed any stay order on the conviction of the petitioner rather only sentence was suspended in exercise of power conferred under Section 389(i) of Cr.P.C. 34. In the meanwhile the Hon'ble Supreme Court has been pleased to acquit the petitioner from the criminal charges thereafter the petitioner has represented before the authorities for reinstating in service with retrospective effect and to pay all consequential benefits. 35. In terms of the order dated 08.10.2009 the petitioner has been reinstated in service but without any back wages applying the principle of "no work and no pay". 35. In terms of the order dated 08.10.2009 the petitioner has been reinstated in service but without any back wages applying the principle of "no work and no pay". But however, the intervening period will be treated as service period for the purpose of seniority, computation of terminal benefits and pensionary benefits. 36. For adjudicating the grievance of the petitioner regarding the back wages it is to be seen that whether the petitioner is entitled for the same or not and for that, relevant facts needs to be considered which is as follows:-- "(i) The petitioner was charged with the allegation of moral turpitude, allegation of failing to discharge duties with diligence and devotion thereafter he was proceeded departmentally charge has been proved, order of punishment has been passed which has been confirmed by the Appellate Authority but not challenged before any court of law. This means that the charge which was framed and the order of punishment which was passed had attained its finality. However, the Bank has decided to keep the petitioner in service by imposing punishment provided under the discipline and Appeal rule but after conviction in the criminal case. (ii) The Bank has resorted to the provision of Section 10(b)(1)(i) and dismissed the petitioner from service. The petitioner has been acquitted by the Hon'ble Supreme Court in this regard the relevant paragraph of the judgment needs to be considered as to whether the conviction of the petitioner was on merit or on benefit of doubt for that paragraph-131 of the judgment reported in Mir Nagvi Askari Vs. C.B.I., AIR 2010 SC 528 : (2009) 11 JT 191 : (2009) 11 SCALE 174 : (2009) 15 SCC 643 : (2009) 96 SCL 248 : (2009) 13 SCR 124 (supra) which is being quoted herein below:-- "131. We may also notice that accused 5 was acquitted by the trial court in respect of transaction dated 16.12.1991 despite the consolidated debit voucher not tallying with the total as reflected in the BCR register. Thus being only involved in these two transactions having similar facts, and being acquitted in one, he is, in our view, entitled to the same benefit in the other transaction too. Benefit of doubt given in respect of one transaction would apply on all fours to the other, as both of them are of similar nature. Thus being only involved in these two transactions having similar facts, and being acquitted in one, he is, in our view, entitled to the same benefit in the other transaction too. Benefit of doubt given in respect of one transaction would apply on all fours to the other, as both of them are of similar nature. Further, is also needs to be considered that the prosecution has not been able to produce any evidence to prove a Accused 5 s involvement in the conspiracy. Therefore, we are of the opinion that the learned Special Judge erred in holding that Accused 5 was a party to the conspiracy with regard to the instant transaction." This finding of the Hon'ble Supreme Court clearly shows that the trial Court has not found the petitioner guilty with respect to one transaction by giving benefit of doubt as such the Hon'ble Supreme Court has passed the order when the benefit of doubt has been given regarding one transaction which was related to the petitioner then why said benefit has not been given related to other four transactions since all transactions were similar in nature, on that ground the trial Court judgment to that extent was quashed. This finding clearly shows that the petitioner was acquitted on the basis of benefit of doubt. After acquittal the representation of petitioner was considered he was reinstated in service, however, it is settled there cannot be automatic reinstatement in service in absence of any provision provided under the statute for reinstatement after its acquittal. In the Banking Regulation there is no provision of automatic reinstatement in service. In this regard the judgments rendered by of the Hon'ble Supreme Court needs to be referred in the case of State of West Bengal and Others Vs. Sankar Ghosh, (2013) 12 AD 599 : AIR 2014 SC 405 : (2014) 140 FLR 525 : (2013) 15 JT 360 : (2014) LabIC 1579 : (2014) 2 LLN 331 : (2014) LLR 319 : (2013) 14 SCALE 245 : (2014) 3 SCC 610 : (2014) 1 SCC(L&S) 619 : (2014) 3 SCJ 77 : (2014) 1 SCT 580 : (2014) 1 SLJ 273 which is being quoted herein below:-- "18. We indicate that the respondent could not lay his hand to any rule or regulation applicable to the police force stating that once an employee has been acquitted by a criminal court, as a matter of right, he should be reinstated in service, despite all the disciplinary proceedings. Even otherwise there is no rule of automatic reinstatement on acquittal by a criminal court even though the charges levelled against the delinquent before the enquiry officer as well as the criminal court are the same." But however, the Bank has considered representation of the petitioner and reinstated the petitioner in service hence this Court is not making any comment on the decision of the Bank." 37. Admittedly, the petitioner was out of service on the grave charge of moral turpitude in which was ended in acquittal, the petitioner was reinstated in service. 38. Regarding claim of back wages learned counsel appearing for the petitioner has cited judgment rendered by the Hon'ble Supreme Court in Shiv Nandan Mahto Vs. State of Bihar and Others, (2013) 14 JT 621 : (2011) 11 SCC 626 : (2014) 1 SCT 47 . 39. From perusal of the said order no ratio has been laid down moreover, the facts of the said case is quite different from the facts of the petitioner, because in the case cited not related with any allegation rather the case is with respect to adjustment of service of Shiv Nandan (petitioner) of the judgment cited and as such the same is not applicable. 40. So far as the judgment referred in the case of Somesh Tiwari Vs. Union of India (UOI) and Others, AIR 2009 SC 1399 : (2009) 1 JT 96 : (2009) 1 SCALE 63 : (2009) 2 SCC 592 : (2009) 1 SCC(L&S) 411 : (2009) 3 SLR 506 : (2009) AIRSCW 854 the facts of the said case is also not similar to the facts of this case because fact of the case cited was regarding the issue in case of transfer of an employee and not related with any of the charges or allegation. 41. The other judgment in which reliance has been placed is of the case of Mahadeo Bhau Khilare (Mane) and Others Vs. 41. The other judgment in which reliance has been placed is of the case of Mahadeo Bhau Khilare (Mane) and Others Vs. State of Maharashtra and Others, (2007) 114 FLR 420 : (2007) 6 JT 562 : (2007) 6 SCALE 695 : (2007) 5 SCC 524 : (2007) 2 SCC(L&S) 194 : (2007) 6 SCR 244 : (2008) 1 SLJ 74 the fact of the case is also different from the fact of the petitioner because the cited case is regarding regularisation. 42. Reliance has been placed in the case of Nigamananda Mangaraj Vs. The Chairman-cum-Disciplinary Authority, Koraput Panchabati Gramya Bank, (2014) LabIC 4136 . The facts of the said case is also not applicable because the said case was related to solemnisation of second marriage and it does not relate with the conduct of the petitioner while discharging official duty, this aspect of the matter has been taken into consideration by this Court vide paragraph-12 placing reliance the judgment referred in the case of Allahabad Bank and Another Vs. Deepak Kumar Bhola, (1997) 3 JT 539 : (1997) 1 LLJ 854 : (1997) 2 SCALE 623 : (1997) 4 SCC 1 : (1997) 2 SCR 1055 : (1997) 1 UJ 761 wherein the definition of "moral turpitude" has been discussed which relates to dealing with money of general public commits forgery, unlawful withdrawal which he is not entitled to be withdrawn. 43. For getting back wages for the intervening period the law is well settled as has been held by the Hon'ble Supreme Court where in the case of P.G.I. of M.E. and Research, Chandigarh Vs. Raj Kumar, (2001) 88 FLR 688 : (2001) 1 JT 336 : (2000) 8 SCALE 469 : (2001) SCC(L&S) 365 : (2000) 4 SCR 350 Supp : (2001) AIRSCW 77 : (2000) 8 Supreme 603 wherein at para-12 it has been held as follows:-- "Payment of back wages having a discretionary element involved in it has to be dealt with, in the facts and circumstances of each case and no straitjacket formula can be evolved, though, however, there is statutory sanction to direct payment of back wages in its entirety. " 44. The similar view has been taken in other judgments of Hon'ble Apex Court in the case of Hindustan Motors Ltd. Vs. " 44. The similar view has been taken in other judgments of Hon'ble Apex Court in the case of Hindustan Motors Ltd. Vs. Tapan Kumar Bhattacharya and Another, AIR 2002 SC 2676 : (2002) 94 FLR 741 : (2002) 5 JT 143 : (2002) LabIC 2640 : (2002) 2 LLJ 1156 : (2002) 5 SCALE 174 : (2002) 6 SCC 41 : (2002) 1 SCR 127 Supp : (2002) 3 SCT 665 : (2002) AIRSCW 3008 : (2002) 4 Supreme 592 , Indian Railway Construction Co. Ltd. Vs. Ajay Kumar, AIR 2003 SC 1843 : (2003) 97 FLR 411 : (2003) 2 JT 295 : (2003) 2 LLJ 150 : (2003) 2 SCALE 481 : (2003) 4 SCC 579 : (2003) SCC(L&S) 528 : (2003) 2 SCR 387 : (2003) 2 SLJ 334 : (2003) AIRSCW 1301 and M.P. State Electricity Board Vs. Smt. Jarina Bee, AIR 2003 SC 2657 : (2003) 3 CTC 702 : (2003) 5 JT 542 : (2003) 3 LLJ 244 : (2003) 5 SCALE 259 : (2003) 6 SCC 141 : (2003) SCC(L&S) 833 : (2003) 1 SCR 535 Supp : (2004) 1 SLJ 96 : (2003) AIRSCW 3380 : (2003) 4 Supreme 510 . Applying the said principle, the Hon'ble Supreme Court in the case of Kendriya Vidyalaya Sangathan vrs. S.C. Sharma reported in (2005) 2 SCC 363 wherein their lordships has been pleased to refer at para-16 it has been held as follows:-- "Applying the above principle, the inevitable conclusion is that the respondent was not entitled to full back wages which according to the High Court was natural consequence. That part of the High Court order is set aside. When the question of determining the entitlement of a person to back wags is concerned, the employee has to show that he was not gainfully employed. The initial burden is on him. After and if he places materials in that regard, the employer can bring on record materials to rebut the claim. In the instant case, the respondent had neither pleaded nor placed any material in that regard." 45. In other judgment rendered by the Hon'ble Supreme Court in the case of Deepali Gundu Surwase Vs. The initial burden is on him. After and if he places materials in that regard, the employer can bring on record materials to rebut the claim. In the instant case, the respondent had neither pleaded nor placed any material in that regard." 45. In other judgment rendered by the Hon'ble Supreme Court in the case of Deepali Gundu Surwase Vs. Kranti Junior Adhyapak Mahavidyalaya (D. Ed.) and Others, (2013) 6 ABR 304 : (2013) 10 AD 89 : (2013) 139 FLR 541 : (2013) LabIC 4249 : (2013) 4 LLN 417 : (2013) 11 SCALE 268 : (2013) 10 SCC 324 : (2013) 4 SCT 716 has been pleased to hold at paragraph-33 which is being quoted herein below:-- "33. Procedure for inflicting major penalties -(1) If an employee is alleged to be guilty of any of the grounds specified in sub-rule (5) of Rule 28 and if there is reason to believe that in the event of the guilt being proved against him he is likely to be reduced in rank or removed from service, the management shall first decide whether to hold an inquiry and also to place the employee under suspension and if it decides to suspend the employee, it shall authorise the Chief Executive Officer to do so after obtaining the permission of the Education Officer or, in the case of the Junior College of Educational and Technical High Schools, of the Deputy Director. Suspension shall not be ordered unless there is a prima facie case for his removal or there is reason to believe that his continuance in active service is likely to cause embarrassment or to hamper the investigation of the case. If the management decides to suspend the employee, such employee shall, subject to the provisions of sub-rule (5), stand suspended with effect from the date of such orders. (2) If the employee tenders resignation while under suspension and during the pendency of the inquiry such resignation shall not be accepted. (3) An employee under suspension shall not accept any private employment. (4) The employee under suspension shall not leave the headquarters during the period of suspension without the prior approval of the Chief Executive Officer. (2) If the employee tenders resignation while under suspension and during the pendency of the inquiry such resignation shall not be accepted. (3) An employee under suspension shall not accept any private employment. (4) The employee under suspension shall not leave the headquarters during the period of suspension without the prior approval of the Chief Executive Officer. If such employee is the Head and also the Chief Executive Officer, he shall obtain the necessary prior approval of the president." Their lordships have also given reliance upon the judgment rendered by the Hon'ble Apex Court in the case of Hindustan Tin Works Pvt. Ltd. Vs. The Employees of Hindustan Tin Works Pvt. Ltd. and Others, AIR 1979 SC 75 : (1978) 37 FLR 240 : (1978) 2 LLJ 474 : (1979) 2 SCC 80 : (1979) 1 SCR 563 : (1978) 10 UJ 712 and differing with the view taken in the case of J.K. Synthetics Ltd. Vs. K.P. Agrawal and Another, (2007) 112 FLR 1049 : (2007) 3 JT 1 : (2007) 2 LLJ 128 : (2007) 2 SCALE 382 : (2007) 2 SCC 433 : (2007) 1 SCC(L&S) 651 : (2007) 2 SCR 60 : (2007) 3 SLJ 101 has been pleased to hold that the onus is first upon the employee to prove that he was not gainfully employed and if such ground taken by the employee, the employer has to falsify the same. 46. In view of such proposition, the requirement for getting back wages during the period of termination at any case on wrongful termination of service, reinstatement and continuing in service and back wages is to subject to rider that while deciding the issue of back wages, the adjudicating authority or the Court may take into consideration the length of service of the employee/workman, the nature of misconduct, if any found proved against the employee/workman, the financial conditions of the employer and similar other factors for getting back wages it is required either to plea or at least to make statement before adjudicating, authority or the Court at the first instance he/she was not gainfully employed or was employee with lesser wages. 47. 47. In this case, the petitioner although is claiming back wages but from entire pleading, nowhere it has been stated that he has not gainfully been employed, however at para-53 and 54 of writ petition, statement has been made that he was out of job due to disqualification for future employment on account of order of dismissal. 48. This statement cannot be said to be sufficient because in the summary proceeding like writ jurisdiction the party is supposed to give specific statement then only question of its rebuttal by opposite side will arise, no specific statement supported with document regarding not gainfully employed during the intervening period has been given by the petitioner hence in absence of that the decision taken by the Bank cannot be said to be without any application of mind. 49. Considering the nature of the misconduct related to financial transactions, the punishment has been imposed upon the petitioner after conclusion of the departmental proceeding which has never been challenged by the petitioner. So the case of the petitioner for getting back wages cannot be said to be under the normal rule rather it is coming under the rider and in absence of the specific pleading regarding not gainfully employed the petitioner cannot be said to be entitled for getting back wages. 50. The principle of "no work and no pay" has been adopted because if the employee has not performed his duty, the employer cannot be over burdened. In view of the reasons stated hereinabove, I find no reason to interfere with the part of the order dated 08.10.2009 by which the claim of the petitioner for back wages has been denied on the basis of principle of "no work and no pay". Hence, I find no merit in this writ petition. Accordingly, the writ petition is dismissed. Final Result : Dismissed