JUDGMENT : DIPANKAR DATTA, J. 1. While hearing the application for stay in the intra-Court writ appeal, we have heard the parties on the merits thereof with their consent. The point involved in the appeal is short but important, and we propose to dispose of the appeal together with the application by this common judgment and order. 2. Statute 12G of Chapter XIII of the Calcutta University First Statutes, 1979 (hereafter the First Statutes) titled “Statutes relating to the terms of employment and conditions of service of non-teaching employees of colleges affiliated to the University other than Government Colleges” falls for interpretation in this writ appeal. The challenge therein is to the judgment and order dated December 21, 2015 of disposal of W.P. 22935(W) of 2015 by a learned Judge of this Court. The writ petition, presented by the respondent no.1 herein (hereafter the employee), was disposed of with certain directions. Pertinently, the appellants had applied for review of the said judgment and order by presenting RVW 66 of 2016. Upon a contested hearing, the review petition was dismissed by His Lordship by the judgment and order dated July 21, 2017. 3. We place on record that the point we are called upon to decide has not been decided in the judgment and order under appeal; it was decided while dismissing the review petition. Since no appeal lies against an order dismissing a review petition, the said point has been canvassed while challenging the order disposing of the writ petition. 4. Since the basic facts are admitted, we need not refer to the same in any great detail. We shall refer to such facts only, which are necessary to comprehend the factual matrix leading to diverse litigation between the employee and the appellant no.1 (hereafter the college). 5. The employee at the material time was the head clerk of the college. By issuing a charge-sheet dated January 29, 2005, the college drew up disciplinary proceedings against him. Such proceedings culminated in a final order dated April 18, 2006 dismissing the employee from service. He challenged the said order in the first round of litigation by presenting W.P. 14853(W) of 2006, basically on the ground of violation of the principles of natural justice. Upon a contested hearing, the challenge was upheld by a learned Judge of this Court. Such proceedings culminated in a final order dated April 18, 2006 dismissing the employee from service. He challenged the said order in the first round of litigation by presenting W.P. 14853(W) of 2006, basically on the ground of violation of the principles of natural justice. Upon a contested hearing, the challenge was upheld by a learned Judge of this Court. The writ petition was allowed by judgment and order dated April 26, 2013; the order of dismissal was set aside and the college was granted liberty to proceed afresh from the stage of consideration of the employee’s response to the charge-sheet. Back wages were not granted to the employee, as prayed for, but it was made subject to result of the disciplinary proceedings. The college accepted the said order and resumed the proceedings from the stage as directed. A fresh enquiry was conducted leading to a report dated November 22, 2013, exonerating the employee of all the charges. It was also recommended in the said report that the employee be granted appropriate relief under statute 12G(a)(i) under Chapter XIII of the First Statutes. The said report was accepted by the governing body of the college in its meeting held on May 3, 2014, pursuant whereto the employee was reinstated in service and allowed to resume duty w.e.f. May 15, 2014. Insofar as release of arrears of pay and allowances for the period the employee was under a disability to perform duty and consequently absent is concerned, the governing body had resolved (on May 3, 2014 itself) that it had no objection if “the Court gives direction to the DPI, Govt. of West Bengal (CS Branch) for disbursement of arrear salary and disbursement be made as and when arrear salary will be received by the college from the DPI, Govt. of West Bengal”. The papers were forwarded by the college to the Joint Director of Public Instructions, Government of West Bengal, whereupon on April 13, 2015, the Director of Public Instructions, Government of West Bengal addressed a communication to the principal of the college requesting him to submit fresh resolution of the governing body for grant of pay-fixation and other benefits, which should be unconditional unlike the earlier resolution dated May 3, 2014. However, the college did not react. This led to the second round of litigation at the instance of the employee before this Court. However, the college did not react. This led to the second round of litigation at the instance of the employee before this Court. Challenging the inaction and/or refusal of the college to act in terms of the director’s aforesaid letter dated April 13, 2015, he presented W.P. 22935(W) of 2015 praying for, inter alia, direction on the college to act in terms of the director’s letter dated April 13, 2015 and other ancillary relief. This writ petition came to be disposed of by the judgment and order challenge, the operative part whereof reads as follows: “As noted above, the disciplinary proceedings conducted afresh pursuant to the said judgment, delivered the finding that the petitioner was honourably acquitted. The State, it appears from the memo dated 13th April, 2015 issued by it, would like to deal with the matter at their instance without any condition imposed as stipulated by the Governing Body of the College. The college is directed to forthwith pass an appropriate resolution in terms of the requirement under the said memo dated 13th April, 2015 without imposing any condition or observation or opinion or any other such and forward the same forthwith to the concerned authority of the State regarding the petitioner’s claim of pay-fixation and arrears of salary. The college is expected to do what is required within a period of four weeks from the date of communication of a copy of this order obtained from the website of this Court, to be made by the petitioner.” 6. It was thereafter that the college applied for review, which has also been dismissed as noticed above. 7. Why did the college apply for review? The employee suffered the order of dismissal on April 18, 2006, which was ultimately set aside by this Court on April 26, 2013. Thus, his status was that of a dismissed employee for 7 years 5 days. During this period, the employee did not sit idle. In the year 2008, he took admission in the LL.B. course in a college in Odisha and acquired the relevant degree in 2011. He then acquired the LL.M. degree in 2013. These facts were not to the knowledge of the college when the writ petition of the employee came to be disposed of and having derived knowledge in regard thereto at a subsequent point of time, it urged two contentions based thereon which are inter-related. He then acquired the LL.M. degree in 2013. These facts were not to the knowledge of the college when the writ petition of the employee came to be disposed of and having derived knowledge in regard thereto at a subsequent point of time, it urged two contentions based thereon which are inter-related. The college contended that the employee did not obtain its permission to secure admission in either of the courses and being stationed in Odisha, during the period the employee was pursuing higher studies he was unavailable to serve the college and such period cannot be treated as a “period spent on duty”. That apart, there is no provision in Chapter XIII of the First Statutes, which governs the terms of employment of non-teaching staff of colleges affiliated to the University of Calcutta (hereafter the university), permitting a non-teaching staff to apply for and obtain study leave. In that view of the matter, the employee could not have, leaving his place of duty, pursue higher studies and not being available for duty at all times, the period of absence cannot be treated as “period spent on duty”. 8. The learned Judge did not hold the review petition to be not maintainable but decided it on its merits. His Lordship was of the view that: “*** The petitioner here has not admitted to having earned by reason of having obtained Master’s degree in Law, by practice or otherwise and so there is no question of entitlement to deduction but that the entire pay and allowances is to be paid to him.*** The fact is the petitioner was wrongfully dismissed from service and, therefore, honourably acquitted and reinstated. In that time he did something constructive in having had improved himself academically. This Court being of the view that the mandate of the concerned provision is upon the employer to treat the entire period as spent on duty, is also of the view that such is justifiably so since the petitioner was made to be absent from duty. no condition can be imposed by the college under the First Statutes, regarding time spent by its employee while prevented from serving by a wrongful order. This Court is unable to accept the interpretation of the provision as urged by the review applicant and adjudicate as to what would constitute time spent on duty when the provision says it shall be treated as such. This Court is unable to accept the interpretation of the provision as urged by the review applicant and adjudicate as to what would constitute time spent on duty when the provision says it shall be treated as such. The other contention regarding leave also cannot be accepted. The petitioner, if was not wrongfully dismissed from service, would have continued to serve in that period. Whether or not while serving he would have wanted to improve himself academically and accordingly apply for leave when such leave could not be had, is a situation in the realm of speculation.” 9. Before us, more or less, the same contentions that were urged before the learned Judge in course of hearing of the review petition have been repeated on behalf of the appellant. 10. Mr. B.R. Bhattacharya, learned senior advocate appearing for the appellants placed before us statute 12G of Chapter XIII of the First Statutes and contended that “period spent on duty” appearing in clause (b) thereof should mean that the delinquent staff was always available for duty but could not perform duty due to dismissal, removal or suspension and since the employee was spending time in Odisha for higher education, it was not a case where he was always readily available for duty; hence, he does not qualify for release of full pay and allowances for the period of his absence from duty. He, thus, prayed that the judgment and order under appeal may be set aside and the college may be permitted to decide the employee’s entitlements in terms of statute 12G. 11. In addition to the above, Mr. Ahammed, learned advocate for the appellants contended that the current trend of decisions is against awarding full back wages and he submitted that in view of such decisions too, the employee is not entitled to the relief claimed in the writ petition. 11. In addition to the above, Mr. Ahammed, learned advocate for the appellants contended that the current trend of decisions is against awarding full back wages and he submitted that in view of such decisions too, the employee is not entitled to the relief claimed in the writ petition. According to him, entitlement to full back wages on reinstatement is not automatic and he has relied on the decisions in Metropolitan Transport Corporation v. V. Venkatesan : (2009) 9 SCC 601 ; Babu Lal v. Haryana State Agricultural marketing Board : (2009) 4 SCC 287 ; Managing Director, Balasaheb Desai Sahakari S.K. Limited v. Kashinath Ganapati Kambale : (2009) 2 SCC 288 ; and Shri Bhagwan Lal Arya v. Commissioner of Police, Delhi : (2004) 4 SCC 560 to contend that recent decisions of the Supreme Court in relation to grant of full “back wages” show a distinct shift in approach. The decision in Managing Committee, R.S. Khalsa High School, Ludhiana v. State of Punjab : 1986 (Supp) SCC 577 was also cited by Mr. Ahammed to contend that back wages were made available to the concerned staff only for the period he was available for service in the school and was not employed or occupied elsewhere. 12. The decision in V. Venkatesan (supra), arising out of an order passed under section 33-C(2) of the Industrial Disputes Act, 1947 (hereafter the ID Act) was rendered by a Bench of two learned Judges of the Supreme Court. Venkatesan was a conductor who was removed from service following a domestic enquiry. The order of removal dated December 12, 1996 was challenged on the ground that approval under section 33(2)(b) of the ID Act had not been obtained although a dispute between the employer and other transport workers including Venkatesan was pending before an industrial tribunal. The challenge succeeded and the relevant tribunal directed reinstatement of Venkatesan by its award dated July 11, 2003. It was also declared that Venkatesan is deemed to have continued in service and entitled to all available benefits. A writ petition challenging the award of the tribunal ultimately failed before the high court on August 30, 2006. However, an interim order passed therein stayed the impugned award and the employer was required to deposit full back wages as awarded by the tribunal and compliance with the provisions of section 17B of the ID Act. A writ petition challenging the award of the tribunal ultimately failed before the high court on August 30, 2006. However, an interim order passed therein stayed the impugned award and the employer was required to deposit full back wages as awarded by the tribunal and compliance with the provisions of section 17B of the ID Act. Venkatesan was reinstated by his employer on June 15, 2004, instead of being paid last drawn wages, subject to result of the writ petition. After its dismissal, Venkatesan approached the relevant labour court under section 33-C(2) of the ID Act for recovery of the sum due and payable under the award dated July 11, 2003. The claim was allowed by the labour court on December 22, 2006. Such order was challenged before the high court once again by the employer, particularly on the ground that Venkatesan had been enrolled as an advocate on December 12, 2000 and being gainfully employed, was not entitled to full back wages. The challenge before the two tiers in the high court having failed, the employer approached the Supreme Court. The question of law arising for decision is reflected in paragraph 1 of the decision reading as follows: “The question that falls for determination in this appeal by special leave is: is the respondent entitled to claim full back wages for the period from 12-12-1996, the date on which he was removed from service till the date of his reinstatement on 15-6-2004 although he was enrolled as an advocate on 12-12-2000 and thereby gainfully employed?” Following various previous decisions of the Supreme Court rendered between 2003 and 2009 including an earlier decision of the same Bench in Jagbir Singh v. Haryana State Agriculture Marketing Board : (2009) 15 SCC 327 , the question was answered against Venkatesan. It was held that in view of the shift in the legal position, relief of reinstatement with full back wages is not automatic. Taking into consideration that Venkatesan had been enrolled as an advocate between December 12, 2000 and June 15, 2004, he was directed to be paid Rs. 4,00,000/- instead of Rs. 6,54,766/-. 13. In Babu Lal (supra), the Supreme Court was examining the judgment and decree passed by the high court in a second appeal, whereby dismissal of the suit instituted by Babu Lal, as decreed by the trial court, was upheld and the first appellate judgment and decree reversed. 4,00,000/- instead of Rs. 6,54,766/-. 13. In Babu Lal (supra), the Supreme Court was examining the judgment and decree passed by the high court in a second appeal, whereby dismissal of the suit instituted by Babu Lal, as decreed by the trial court, was upheld and the first appellate judgment and decree reversed. In paragraph 14 of its decision, the Court referred to an office memorandum which made it clear “that no arrears of pay will be made for the period for which he had actually not worked” and accordingly dismissed the civil appeal. 14. The decision in Kashinath Ganapati Kambale (supra) reveals that Kashinath, while working as a peon in the appellant co-operative society, had committed several acts of misconduct for which he faced departmental proceedings. Having been found guilty of the charges, Kashinath was punished by an order of dismissal from service. The jurisdiction of the relevant labour court was invoked, which found the punishment imposed upon Kashinath to be disproportionate to the gravity of misconduct committed by him. It, thus, ordered reinstatement with 50% back wages and also observed that Kashinath would be entitled to continuity in service. The co-operative society carried the order in appeal, which was dismissed. The pursuit to have the order of the labour court set aside by the high court - both by the single Judge and the Division Bench - too failed. It was then that the Supreme Court was approached by the co-operative society. In course of proceedings before the lower fora, it was the admitted case of Kashinath that he had been carrying on a business of footwear for his survival. In such circumstances and also considering the gravity of misconduct committed by Kashinath, the Supreme Court observed that he was not entitled to any back wages. However, since Rs.60,000/- had been paid to Kashinath by the co-operative society, it was also ordered that no recovery of such amount shall be made from him. 15. Bhagwan Lal Arya (supra) primarily dealt with the question as to whether removal from service of the concerned police constable was in accordance with law or not. Paragraph 14 recorded the conclusion that the impugned punishment was not only highly excessive and disproportionate but was not even permissible to be imposed as per the service rules. 15. Bhagwan Lal Arya (supra) primarily dealt with the question as to whether removal from service of the concerned police constable was in accordance with law or not. Paragraph 14 recorded the conclusion that the impugned punishment was not only highly excessive and disproportionate but was not even permissible to be imposed as per the service rules. The Court was minded to set aside the punishment and remit the matter to the disciplinary authority for fresh consideration but having regard to the lapse of time, made certain directions for reinstatement of the constable in service but without continuity of service and service benefits for the period of his absence. 16. We shall deal with the decisions cited by Mr. Ahammed at a later stage. 17. Per contra, Mr. Chakraborty, learned advocate for the employee contended that the appellants have misread and misinterpreted statute 12G. According to him, the employee having been exonerated of all the charges by the committee that had the occasion to enquire into it and upon unconditional acceptance of its report by the governing body, it was a case of honourable acquittal squarely covered by sub-clause (i), clause (a) of statute 12G; and, once such conclusion were reached, there was no other option open but to apply clause (ii) thereof by virtue of which the employee would be entitled to full pay and allowances. Finally, he urged that since the employee was never gainfully employed during the long period he was under an order of dismissal and keeping him away from work by initiating disciplinary proceedings being absolutely unjustified, he is entitled to full pay and allowances as if he was never fastened with the order of dismissal. 18. In support of his contention that the employee is entitled to full pay and allowances, Mr. 18. In support of his contention that the employee is entitled to full pay and allowances, Mr. Chakraborty relied on the following decisions of the Supreme Court in M. Gopala Krishna Naidu v. State of M.P. : AIR 1968 SC 240 ; B.D. Gupta v. State of Haryana : AIR 1972 SC 2472 ; Hindustan Tin Works v. Employees : (1979) 2 SCC 80 ; S.M. Saiyad v. Baroda Municipal Corporation : AIR 1984 SC 1829 ; Union of India v. K.V. Jankiraman (1991) 4 SCC 109 ; Deepali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyalaya : (2013) 10 SCC 324 ; and, Division Bench decisions of the Bombay High Court in Vasant Raghunath Gokhale v. The State of Maharashtra : AIR 1963 Bombay 137 and Santosh Dattaram Nadkarni v. New India Industries : (1988) II LLJ 392 (Bom). 19. Mr. Manas Kundu, learned advocate for the State although initially hesitant which side to support, ultimately left the matter to the discretion of the Court. 20. None had appeared for the university before us. Having noticed that Mr. Biswaroop Bhattacharya, learned advocate had represented the university before the learned Judge and also finding him waiting for his matter to be called on for hearing, we had asked him to offer his views on statute 12G. It was his submission that availability for duty arises only when one is an employee, and not when the relationship of employer-employee has snapped; and if the latter is under a disability to attend to work occasioned due to dismissal and subsequently the order of dismissal is set aside, it would be the employer’s discretion how to treat the period of absence depending upon the materials that are before it. 21. These being basically the rival contentions raised at the Bar, statute 12G of Chapter XIII has to be read first. It reads: “12. 21. These being basically the rival contentions raised at the Bar, statute 12G of Chapter XIII has to be read first. It reads: “12. Discipline and Conduct G.(a) When the suspension of an employee is held to have been unjustifiable or not wholly justifiable, or when an employee who had been removed or dismissed or suspended from service is reinstated, the authority shall grant to him for the period of his absence from duty: (i) If he is honourably acquitted the full pay and allowances to which he would have been entitled if he had not been dismissed, removed or suspended; (ii) If otherwise, such proportion of pay and allowances as the authority concerned may prescribe. (b) In a case falling under item (i) of Clause (a) the entire period of absence from duty shall be treated as a period spent on duty. In a case falling under item (ii) of Clause (a) the period may be treated as duty or leave as the authority concerned may direct. (c) *****” 22. It is on a proper interpretation of the aforesaid statutory provision that the decision on the appeal would hinge. Let us first find out whether the decisions cited by Mr. Chakraborty are of any help. 23. In M. Gopala Krishna Naidu (supra), interpretation of Fundamental Rule 54 was involved and the Supreme Court was called upon to decide two questions - (i) whether there was a duty on the part of the competent authority to afford the appellant an opportunity of showing cause before making an order that the suspension and departmental enquiry “were not wholly unjustified” and (ii) whether it was a case covered by sub-rule (2) or sub-rule (5) of Fundamental Rule 54. The first question was answered in the affirmative and the respondents were directed to give the appellant opportunity to show cause why his case would not be covered by sub-rules (3) and (5). In view thereof, the Court refrained from answering the second-question. 24. The decision in B.D. Gupta (supra) reveals that rule 7.3 of the Punjab Civil Services Rules was under consideration. In view thereof, the Court refrained from answering the second-question. 24. The decision in B.D. Gupta (supra) reveals that rule 7.3 of the Punjab Civil Services Rules was under consideration. Rule 7.3 was found to be in pari materia with Fundamental Rule 54, and hence following the decision in M. Gopala Krishna Naidu (supra) it was held that the appellant was entitled to an opportunity of showing cause prior to the employer making the impugned order affecting the appellant’s pay and emoluments to his prejudice. 25. In Hindustan Tin Works (supra), some workmen were retrenched on the ground that the employer was suffering mounting losses. The Labour Court held that the real reason for retrenchment was the annoyance felt by the management when the workmen refused to agree to its terms. Consequently, it directed reinstatement with full back wages. The employer challenged it. The Supreme Court granted leave to appeal confined to the question of back wages as it was not considered necessary to interfere with the direction for reinstatement. Ultimately, while reducing the back wages to 75%, it was observed as follows: “9. … If thus the employer is found to be in the wrong as a result of which the workman is directed to be reinstated, the employer could not shirk his responsibility of paying the wages which the workman has been deprived of by the illegal or invalid action of the employer. Speaking realistically, where termination of service is questioned as invalid or illegal and the workman has to go through the gamut of litigation, his capacity to sustain himself throughout the protracted litigation is itself such an awesome factor that he may not survive to see the day when relief is granted. More so in our system where the law’s proverbial delay has become stupefying. If after such a protracted time and energy consuming litigation during which period the workman just sustains himself, ultimately he is to be told that though he will be reinstated, he will be denied the back wages which would be due to him, the workman would be subjected to a sort of penalty for no fault of his and it is wholly undeserved. Ordinarily, therefore, a workman whose service has been illegally terminated would be entitled to full back wages except to the extent he was gainfully employed during the enforced idleness. That is the normal rule. Ordinarily, therefore, a workman whose service has been illegally terminated would be entitled to full back wages except to the extent he was gainfully employed during the enforced idleness. That is the normal rule. Any other view would be a premium on the unwarranted litigative activity of the employer. If the employer terminates the service illegally and the termination is motivated as in this case viz. to resist the workmen’s demand for revision of wages, the termination may well amount to unfair labour practice. In such circumstances reinstatement being the normal rule, it should be followed with full back wages. *** 11. In the very nature of things there cannot be a straitjacket formula for awarding relief of back wages. All relevant considerations will enter the verdict. More or less, it would be a motion addressed to the discretion of the Tribunal. Full back wages would be the normal rule and the party objecting to it must establish the circumstances necessitating departure. At that stage the Tribunal will exercise its discretion keeping in view all the relevant circumstances. But the discretion must be exercised in a judicial and judicious manner. The reason for exercising discretion must be cogent and convincing and must appear on the face of the record. When it is said that something is to be done within the discretion of the authority, that something is to be done according to the rules of reason and justice, according to law and not humour.” 26. S.M. Saiyad (supra) is a case where the appellant, a workman, had admitted joining legal practice on January 20, 1972 and earning a particular sum, more or less Rs.150/- per month, while he was suffering the order of dismissal. However, there was no evidence of exactly when started earning. The only question that arose for consideration in the appeal was, whether the appellant is entitled to claim back wages for the period December 12, 1969 (the day on which he was dismissed from service) till October 26, 1976 (the date onward, the appellant has been awarded back wages upon modification of the award by the High Court). The Court directed payment of back wages after deducting the amount of Rs.150/- p.m. from January 20, 1973 to October 26, 1976 from the amount which become payable to the appellant on the following reasoning: “7. The Court directed payment of back wages after deducting the amount of Rs.150/- p.m. from January 20, 1973 to October 26, 1976 from the amount which become payable to the appellant on the following reasoning: “7. Appellant contended and in our opinion rightly that deduction at the rate of Rs 150 p.m. should not commence from the very day he was enrolled as an advocate because it is common knowledge that no one earns from the first day and therefore a reasonable period must be set apart from finding a footing in the profession. The contention deserves consideration. The appellant himself has been rather loose in his statement. It would be reasonable to hold that he must have at least started earning at the rate of Rs 150 p.m. as stated by him after the lapse of one year from the date he was enrolled as an advocate.” 27. In Jankiraman (supra), the three questions that emerged for decision were: (i) What is the date from which it can be said that disciplinary/criminal proceedings are pending against an employee? (ii) What is the course to be adopted when the employee is held guilty in such proceedings if the guilt merits punishment other than that of dismissal? (iii) To what benefits an employee who is completely or partially exonerated is entitled to and from which date? The third question is apparently relevant for the present discussion. The authorities sought to invoke the principle of “no work no pay” relying on Fundamental Rule 17. The question was, however, answered thus: “23. There is no doubt that when an employee is completely exonerated and is not visited with the penalty even of censure indicating thereby that he was not blameworthy in the least, he should not be deprived of any benefits including the salary of the promotional post. It was urged on behalf of the appellant-authorities in all these cases that a person is not entitled to the salary of the post unless he assumes charge of the same. They relied on F.R. 17(1) of the Fundamental Rules and Supplementary Rules which reads as follows: ‘***’ 24. It was further contended on their behalf that the normal rule is “no work no pay”. Hence a person cannot be allowed to draw the benefits of a post the duties of which he has not discharged. They relied on F.R. 17(1) of the Fundamental Rules and Supplementary Rules which reads as follows: ‘***’ 24. It was further contended on their behalf that the normal rule is “no work no pay”. Hence a person cannot be allowed to draw the benefits of a post the duties of which he has not discharged. To allow him to do so is against the elementary rule that a person is to be paid only for the work he has done and not for the work he has not done. As against this, it was pointed out on behalf of the concerned employees, that on many occasions even frivolous proceedings are instituted at the instance of interested persons, sometimes with a specific object of denying the promotion due, and the employee concerned is made to suffer both mental agony and privations which are multiplied when he is also placed under suspension, When, therefore, at the end of such sufferings, he comes out with a clean bill, he has to be restored to all the benefits from which he was kept away unjustly. 25. We are not much impressed by the contentions advanced on behalf of the authorities. The normal rule of “no work no pay” is not applicable to cases such as the present one where the employee although he is willing to work is kept away from work by the authorities for no fault of his. This is not a case where the employee remains away from work for his own reasons, although the work is offered to him. It is for this reason that F.R. 17(1) will also be inapplicable to such cases. 26. We are, therefore, broadly in agreement with the finding of the Tribunal that when an employee is completely exonerated meaning thereby that he is not found blameworthy in the least and is not visited with the penalty even of censure, he has to be given the benefit of the salary of the higher post along with the other benefits from the date on which he would have normally been promoted but for the disciplinary/criminal proceedings. However, there may be cases where the proceedings, whether disciplinary or criminal, are, for example, delayed at the instance of the employee or the clearance in the disciplinary proceedings or acquittal in the criminal proceedings is with benefit of doubt or on account of non-availability of evidence due to the acts attributable to the employee etc. In such circumstances, the concerned authorities must be vested with the power to decide whether the employee at all deserves any salary for the intervening period and if he does, the extent to which he deserves it. Life being complex, it is not possible to anticipate and enumerate exhaustively all the circumstances under which such consideration may become necessary. To ignore, however, such circumstances when they exist and lay down an inflexible rule that in every case when an employee is exonerated in disciplinary/criminal proceedings he should be entitled to all salary for the intervening period is to undermine discipline in the administration and jeopardise public interests. We are, therefore, unable to agree with the Tribunal that to deny the salary to an employee would in all circumstances be illegal.***” 28. Deepali Gundu Surwase (supra) is a case where the direction of the relevant school tribunal quashing the order terminating the service of the appellant and directing reinstatement with full back wages was questioned before the high court and the high court, relying on the decision of the Supreme Court in J.K. Synthetics Ltd. v. K.P. Agrawal : (2007) 2 SCC 433 , set aside the order for back wages, which was under challenge in the civil appeal before the Supreme Court. In its effort to sustain the impugned order of the high court, the respondents, apart from J.K. Synthetics Ltd. (supra), relied on various decisions (some of which have been cited by Mr. Ahammed). Upon consideration of all such decisions, the Court proceeded to rule as follows: “38. The propositions which can be culled out from the aforementioned judgments are: 38.1. In cases of wrongful termination of service, reinstatement with continuity of service and back wages is the normal rule. 38.2. Ahammed). Upon consideration of all such decisions, the Court proceeded to rule as follows: “38. The propositions which can be culled out from the aforementioned judgments are: 38.1. In cases of wrongful termination of service, reinstatement with continuity of service and back wages is the normal rule. 38.2. The aforesaid rule is subject to the 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 condition of the employer and similar other factors. 38.3. Ordinarily, an employee or workman whose services are terminated and who is desirous of getting back wages is required to either plead or at least make a statement before the adjudicating authority or the court of first instance that he/she was not gainfully employed or was employed on lesser wages. If the employer wants to avoid payment of full back wages, then it has to plead and also lead cogent evidence to prove that the employee/workman was gainfully employed and was getting wages equal to the wages he/she was drawing prior to the termination of service. This is so because it is settled law that the burden of proof of the existence of a particular fact lies on the person who makes a positive averment about its existence. It is always easier to prove a positive fact than to prove a negative fact. Therefore, once the employee shows that he was not employed, the onus lies on the employer to specifically plead and prove that the employee was gainfully employed and was getting the same or substantially similar emoluments. 38.4. The cases in which the Labour Court/Industrial Tribunal exercises power under Section 11-A of the Industrial Disputes Act, 1947 and finds that even though the enquiry held against the employee/workman is consistent with the rules of natural justice and/or certified standing orders, if any, but holds that the punishment was disproportionate to the misconduct found proved, then it will have the discretion not to award full back wages. However, if the Labour Court/Industrial Tribunal finds that the employee or workman is not at all guilty of any misconduct or that the employer had foisted a false charge, then there will be ample justification for award of full back wages. 38.5. However, if the Labour Court/Industrial Tribunal finds that the employee or workman is not at all guilty of any misconduct or that the employer had foisted a false charge, then there will be ample justification for award of full back wages. 38.5. The cases in which the competent court or tribunal finds that the employer has acted in gross violation of the statutory provisions and/or the principles of natural justice or is guilty of victimising the employee or workman, then the court or tribunal concerned will be fully justified in directing payment of full back wages. In such cases, the superior courts should not exercise power under Article 226 or 136 of the Constitution and interfere with the award passed by the Labour Court, etc. merely because there is a possibility of forming a different opinion on the entitlement of the employee/workman to get full back wages or the employer’s obligation to pay the same. The courts must always keep in view that in the cases of wrongful/illegal termination of service, the wrongdoer is the employer and the sufferer is the employee/workman and there is no justification to give a premium to the employer of his wrongdoings by relieving him of the burden to pay to the employee/workman his dues in the form of full back wages. 38.6. In a number of cases, the superior courts have interfered with the award of the primary adjudicatory authority on the premise that finalisation of litigation has taken long time ignoring that in majority of cases the parties are not responsible for such delays. Lack of infrastructure and manpower is the principal cause for delay in the disposal of cases. For this the litigants cannot be blamed or penalised. It would amount to grave injustice to an employee or workman if he is denied back wages simply because there is long lapse of time between the termination of his service and finality given to the order of reinstatement. The courts should bear in mind that in most of these cases, the employer is in an advantageous position vis-à-vis the employee or workman. He can avail the services of best legal brain for prolonging the agony of the sufferer i.e. the employee or workman, who can ill-afford the luxury of spending money on a lawyer with certain amount of fame. He can avail the services of best legal brain for prolonging the agony of the sufferer i.e. the employee or workman, who can ill-afford the luxury of spending money on a lawyer with certain amount of fame. Therefore, in such cases it would be prudent to adopt the course suggested in Hindustan Tin Works (P) Ltd. v. Employees. 38.7. The observation made in J.K. Synthetics Ltd. v. K.P. Agrawal that on reinstatement the employee/workman cannot claim continuity of service as of right is contrary to the ratio of the judgments of three-Judge Benches referred to hereinabove and cannot be treated as good law. This part of the judgment is also against the very concept of reinstatement of an employee/workman.” 29. The decisions rendered by three-Judge Benches of the Supreme Court, as referred to in paragraph 38.7 of the aforesaid extract, are undoubtedly Hindustan Tin Works (supra) and the one in Surendra Kumar Verma v. Central Govt. Industrial Tribunal : (1980) 4 SCC 443 . In the latter decision, the Court held as follows: “Plain common sense dictates that the removal of an order terminating the services of workmen must ordinarily lead to the reinstatement of the services of the workmen. It is as if the order has never been, and so it must ordinarily lead to back wages too. But there may be exceptional circumstances which make it impossible or wholly inequitable vis-à-vis the employer and workmen to direct reinstatement with full back wages. For instance, the industry might have closed down or might be in severe financial doldrums; the workmen concerned might have secured better or other employment elsewhere and so on. In such situations, there is a vestige of discretion left in the court to make appropriate consequential orders. The court may deny the relief of reinstatement where reinstatement is impossible because the industry has closed down. The court may deny the relief of award of full back wages where that would place an impossible burden on the employer. In such and other exceptional cases the court may mould the relief, but, ordinarily the relief to be awarded must be reinstatement with full back wages. That relief must be awarded where no special impediment in the way of awarding the relief is clearly shown. In such and other exceptional cases the court may mould the relief, but, ordinarily the relief to be awarded must be reinstatement with full back wages. That relief must be awarded where no special impediment in the way of awarding the relief is clearly shown. True, occasional hardship may be caused to an employer but we must remember that, more often than not, comparatively far greater hardship is certain to be caused to the workmen if the relief is denied than to the employer if the relief is granted.” 30. Santosh Dattaram Nadkarni (supra) required the Bombay High Court to answer what relief should follow on the setting aside of the order of termination. The relevant tribunal had refused relief for two reasons, - the workman had not made attempts for employment and that he had since passed the B.A. examination and 1st LL.B. examination. According to the tribunal, the workman not having tried for employment suggested that he was not in need of employment. The Court held that it was not the correct approach. The Court also did not agree with the tribunal’s second reason that his enhanced qualification should come in his way of reinstatement on the post of helper. It was ultimately held that to deny the workman of full back wages is to inflict punishment on him for no fault of his. 31. In Vasant Raghunath Gokhale (supra), the petitioner was a revenue inspector who was placed under suspension and proceeded against departmentally. The charges against him could not be proved, resulting in revocation of the order of suspension, which was approximately 2 years, 6 months and 3 weeks, and permitting the petitioner to resume duty. The period of suspension was directed to be treated as one of leave due and admissible followed by extraordinary leave without pay. This resulted in substantial financial loss being suffered by him. This was challenged in a writ petition, which succeeded. The impugned order was set aside basically on the ground that no order to the prejudice of the petitioner could be passed without granting him opportunity of hearing. 32. Perusal of the decision in B.D. Gupta (supra), relied on by Mr. Chakraborty reveals consideration of an earlier decision of the Supreme Court in State of Assam v. Raghava Rajgopalachari : (1972) 7 SLR 44, which was cited on behalf of the respondents. 32. Perusal of the decision in B.D. Gupta (supra), relied on by Mr. Chakraborty reveals consideration of an earlier decision of the Supreme Court in State of Assam v. Raghava Rajgopalachari : (1972) 7 SLR 44, which was cited on behalf of the respondents. Although it was ultimately distinguished by the Court, the decision in Raghava Rajgopalachari (supra) dealing with the Fundamental Rules and in particular, interpretation of the word “otherwise” occurring in clause (b) of Fundamental Rule 54(1), appears to be very relevant in the present factual scenario. After quoting Fundamental Rule 54 in paragraph 7 of its decision, this is what was laid down by the Court in paragraph 15 thereof: “There was some argument before us as to the interpretation of the word ‘otherwise’ occurring in clause (b). It seems to us that the word ‘otherwise’ means, (sic in) the context, in cases not covered by clause (a).” 33. None of the decisions cited before us by Mr. Chakraborty directly answers the point that we are seized of touching statute 12G, as argued by Mr. B.R. Bhattacharya, but suitable guidance may be had therefrom including the decision in Raghava Rajgopalachari (supra). 34. Here, we are concerned with a situation where the charges on which the employee had been proceeded against in the departmental enquiry were found not to have been proved or established and such conclusion was accepted by the governing body of the college, meaning thereby that the prosecution had failed to drive home the charges against the employee; hence, it can safely be said to be a case where the employee was completely exonerated of the charges he faced, which is akin to an honourable acquittal in a criminal proceeding. Once it is held so, the employee can legitimately claim that his case is covered by clause (a)(i) of statute 12G. The expression “(I)f otherwise”, appearing in clause (b) of Fundamental Rule 54(1) has been held in Raghava Rajgopalachari (supra) to mean “in cases not covered by clause (a)”. We find no material difference between the language used in Fundamental Rule 54 and statute 12G and applying the dictum of the Supreme Court, hold that “(I)f otherwise” in sub-clause (ii) would mean “in cases not covered by sub-clause (i)”. We find no material difference between the language used in Fundamental Rule 54 and statute 12G and applying the dictum of the Supreme Court, hold that “(I)f otherwise” in sub-clause (ii) would mean “in cases not covered by sub-clause (i)”. “(I)f otherwise” in clause (ii) of statute 12G(a), therefore, would not only take within its comprehension the nature of acquittal but also, if there has indeed been an honourable acquittal, circumstances that do not justify full pay and allowances being paid to the staff who was proceeded against. This would include consideration of a case where such a staff had been employed elsewhere and drawing some amount of wages during the period his service stood terminated and upon proof of such drawal, a deduction of such amount from his entitlements would be permissible. 35. In view of the above interpretation which we feel must be put on the scope and ambit of statute 12G, it would be open to the employer to split the period of absence and treat a portion thereof as “spent on duty” and the rest as “not spent of duty’ depending upon the nature of evidence that such employer has in its possession of the staff being in gainful employment. Adverse consequences are bound to follow in case the latter course of action is resorted to and it is in consonance with principles of natural justice and fairness in action that a prior opportunity of a hearing should be given before any deduction in the pay and allowances, which are admissible to him if the period is treated as a “period spent on duty”, is sought to be effected. 36. However, the “otherwise” in clause (a)(ii) of statute 12G, as understood in the context of the decision in Raghava Rajgopalachari (supra), does not come into play here because, first there has been an honorable acquittal and secondly there is no proof of the employee being gainfully employed during the period he was under the order of dismissal and thus, could be seen to have forfeited his right to receive full pay and allowances. 37. The contention of Mr. B.R. Bhattacharya that the employee must have been available for duty at all times between April 18, 2006 and April 26, 2013 is one that we perceive, for more reasons than one, to have been advanced in desperation. 37. The contention of Mr. B.R. Bhattacharya that the employee must have been available for duty at all times between April 18, 2006 and April 26, 2013 is one that we perceive, for more reasons than one, to have been advanced in desperation. First, the employer-employee relationship between the college and the employee snapped on April 18, 2006. There being no disciplinary control to be exercised, the employer cannot legitimately claim that it had/has authority to regulate the life of one of its dismissed staff. Secondly, ‘availability for duty’ has to be understood in the common sense of the situation, i.e. whether one was/is really available for duty or not. That could be ascertained if an attempt were made. In the absence of any attempt, it would be in the realm of speculation whether he was available for duty or not. Thirdly, although the employee had subjected the final order of dismissal to challenge before this Court, there was no certainty that he would succeed. Making an attempt to enhance knowledge cannot, in any view of the matter, be treated as a disqualification for entitlement to full pay and allowances particularly when there is no reason to suppose that, if called on to attend duty (even after dismissal), the employee was not in a position to say ‘yes’ and could not have, at any rate, made himself available. Whether the employee was available for duty or not during the period of his absence can never be ascertained now, in the absence of any attempt having been made by the college in that behalf. A speculative argument cannot but fail. Finally, one needs to ponder as to what would have been the situation if the employee had pursued his study for acquiring higher qualifications without encroaching upon his scheduled working hours in the college and, if particularly, by pursuing studies in a college in and around Kolkata? Would the same logic, as is being applied (simply because the employee acquired the degrees from Odisha), apply? Would the same logic, as is being applied (simply because the employee acquired the degrees from Odisha), apply? We are inclined to the view that for the purposes of clause (b) of statute 12G, the period of absence due to dismissal (as in the present case) to be treated as “period spent on duty” would not require the staff proceeded against to remain idle and it is open to him to pursue any course of study, help his family members in hours of crises, and do any work that assures him dignity in life. There are no strings attached but the only caveat is that if he has been in receipt of income from alternative employment or business during the period of such absence, it would be open to his employer, upon proof, to deduct from his pay and allowances such proportion that he has earned while in course of such employment or business. Of course, recourse to such step may be taken only when there is an admission of the staff that he had been earning after his dismissal from service or the employer has unimpeachable evidence of alternative employment of such staff or engagement in business during the period of his absence from duty. To our mind, the “otherwise” in sub-clause (ii) is wide enough to take within its fold salary/emoluments/income received by a staff for his survival while he was suffering the order of dismissal and in terms of sub-clause (ii), the employer would be within its power to release such proportion of pay and allowances that it might prescribe. 38. We conclude our discussion on the point by declaring that once the law provides for full pay and allowances to a staff who has been proceeded against but is honourably acquitted, and there is no material to suggest gainful employment of such staff elsewhere during the period he was compelled to stay away from duty, such period of his absence has to be regularized by treating it as “period spent on duty”. 39. It is now time to deal with the argument advanced by Mr. Ahammed on the employee’s disentitlement to arrears of pay and allowances in its entirety. 40. The decision in Venkatesan (supra) is of no help to the appellants. It arose out of proceedings under the ID Act and the terms and conditions of service of Venkatesan were not governed by statutory provisions. Ahammed on the employee’s disentitlement to arrears of pay and allowances in its entirety. 40. The decision in Venkatesan (supra) is of no help to the appellants. It arose out of proceedings under the ID Act and the terms and conditions of service of Venkatesan were not governed by statutory provisions. That apart, Venkatesan was found by the Court to be in gainful employment for a little in excess of 42 months, leading to reasonable deduction in benefits payable to him. 41. The decision in Babu Lal (supra) is clearly distinguishable because no such office memorandum, which was placed before the Court and referred to by it while returning its finding, exists here. 42. The ostensible reason for citing the decision in Kashinath Ganapati Kambale (supra) is that it quotes passages from previous decisions in Uttar Pradesh State Brassware Corporation Limited v. Uday Narain Pandey : (2006) 1 SCC 479 , Kendriya Vidyalaya Sangathan v. S.C. Sharma : (2005) 2 SCC 363 , and Uttar Pradesh State Road Transport Corporation v. Mitthu Singh : (2006) 7 SCC 180 . The cumulative effect of the law laid down in such decisions is that in terms of section 106 of the Evidence Act, 1872, it is within the special knowledge of the workman whether he has been in gainful employment or not during the period of absence from duty and, therefore, the burden is on him to raise such plea; and once such plea is raised, it would be open to the employer to rebut the claim by bringing on record appropriate materials. Also, payment of back wages is a discretionary power which has to be exercised by a court/tribunal keeping in view the facts in their entirety and neither straitjacket formula can be evolved nor a rule of universal application be laid down in such cases. 43. In Uday Narain Pandey (supra), the workman was a daily wager employed in a project started by the establishment which by the time the matter was heard by the Supreme Court had been closed. The ultimate observations made by the Supreme Court in Uday Narain Pandey (supra) in regard to entitlement to back wages have to be considered in the light of the contents of paragraphs 40 to 43 thereof and may not have universal application. 44. The ultimate observations made by the Supreme Court in Uday Narain Pandey (supra) in regard to entitlement to back wages have to be considered in the light of the contents of paragraphs 40 to 43 thereof and may not have universal application. 44. In S.C. Sharma (supra), service of the principal of a kendriya vidyalaya was terminated dispensing with the requirement to hold an enquiry. The high court upheld the order of the relevant bench of the central administrative tribunal by which the impugned order was quashed, liberty was granted to proceed afresh in accordance with law and direction for reinstatement in service with all consequential benefits was given. While setting aside the direction of the high court for payment of full back wages, the Supreme Court in support thereof ruled that it was for the employee to show that he was not gainfully employed and that in the given case the respondent had neither pleaded nor placed any material in that regard. 45. In the present case, the plea of the college is not that the employee was in gainful employment. That is why the resolution dated May 3, 2014 does not so record. In fact, the college seems to have accepted the position that the employee was not gainfully employed but sought to rebut his claim for arrears of pay and allowances on the ground urged by Mr. B.R. Bhattacharya. The decision in S.C. Sharma (supra) is, therefore, distinguishable on facts. 46. Paragraph 12 of the decision in Mitthu Singh (supra) would make it clear that on facts and in the circumstances of the case, back wages should not have been directed to be borne by the employer. This decision too is not applicable here. 47. The approach adopted by the Supreme Court in the aforesaid decisions that it is for the workman to plead that he is not gainfully employed and it is not the initial burden of the employer to prove that the workman was/is in gainful employment, appears to us, to be a clear departure from the earlier position of law laid down by judicial precedents requiring the employer to raise the plea of the workman being in gainful employment, to deprive him of full back wages. The earlier position, we are inclined to believe, stands restored in view of the decision in Deepali Gundu Surwase (supra). 48. The earlier position, we are inclined to believe, stands restored in view of the decision in Deepali Gundu Surwase (supra). 48. That apart, the majority of the aforesaid decisions rendered on consideration of the question of entitlement to full back wages, arose out of proceedings between employers and workmen under the ID Act. The difference between employment on the basis of a private contract and employment governed by statutory provisions is one of great significance, sight of which cannot be lost by us. Not doubting the discretionary element that is present in ordering back wages to be paid, the situation would take a different turn if the terms and conditions of service of a staff are regulated by statutory provisions, which provide for full back wages in certain conditions; and if at all enforcement of such provisions are sought for, before the writ court, on the ground that the prior conditions for enforcement are satisfied, we are of the considered opinion that the Court would be failing in its duty if it were to still exercise its discretion within narrow confines and limit the back wages to a certain percentage. In a given case where the employer is found to have taken recourse to disciplinary proceedings against a particular inconvenient employee (whose terms and conditions of service are governed by statutory provisions) to ensure that he is thrown out of employment and, thus, he loses his job, the Court would be justified upon reaching the conclusion that the action was not taken bona fide and without sufficient justification to enforce the right conferred on such employee by the statute; or else, to deprive him of even a part of the pay and allowances, which he would have otherwise been entitled to upon performing his duty, would amount to a punishment without just cause and could encourage scheming employers to secure such punishment in a roundabout way against other inconvenient employees and exploit them to the hilt. 49. We have also failed to comprehend the materiality of the decision in Bhagwan Lal Arya (supra), to the facts at hand. 50. Before parting with the discussion on the topic of back wages, we may usefully refer to the decision in Harjinder Singh v. Punjab State Warehousing Corpn. : (2010) 3 SCC 192 . 49. We have also failed to comprehend the materiality of the decision in Bhagwan Lal Arya (supra), to the facts at hand. 50. Before parting with the discussion on the topic of back wages, we may usefully refer to the decision in Harjinder Singh v. Punjab State Warehousing Corpn. : (2010) 3 SCC 192 . Hon’ble Justice A. K. Ganguly in His Lordship’s supplementing judgment held that “State” as defined in Article 12 encompasses the judiciary and since ‘judicial process’ is also State action, as held in Kesavananda Bharati v. State of Kerala : (1973) 4 SCC 225 , a duty is also cast on the judiciary to secure a social order for the promotion of the welfare of the people bearing in mind the Directive Principles of State Policy. In our humble opinion, the conclusions reached in paragraph 38 of the decision in Deepali Gundu Surwase (supra), viewed in the light of the State’s obligations towards its citizens as contained in Part-IV of the Constitution, should act as the guiding light. 51. For the reasons as discussed above, we find no merit in the writ appeal. Accordingly, the same stands dismissed. The stay application too stands dismissed. 52. We direct the appellants to act in terms of the directions contained in the judgment and order under challenge, within four weeks of service of a copy of this judgment and order upon them. 53. Since the employee has invoked the contempt jurisdiction of the learned Judge, we stay such proceedings till four weeks after service is effected, as referred to in the preceding paragraph. Should the order be not complied with within the time as granted by us, the stay on the contempt proceedings shall lapse and the learned Judge shall be entitled to proceed in accordance with law. This direction is given in the special facts and circumstances to avoid generation of further proceedings for contempt before us. 54. The employee shall be entitled to costs, assessed at Rs.17,000/- to be paid to him by the appellants.