ORDER : 1. The order dated 25th January 2017 passed in WP (S) No. 1323 of 2009 is under challenge on the ground that the memorandum of settlement signed by the employer and employee would be binding on both the parties and the employee is therefore not entitled for back wages. 2. The learned writ Court has held as under: “6. Be that as it may, having gone through the rival submissions of the parties, this Court is of view that it is an admitted fact that the petitioner was convicted in criminal case and after conclusion of the trial, he was honorably acquitted in the criminal appeal. This Court has held that the prosecution has not been able to establish the charges against this petitioner in Criminal Appeal No. 796 of 2003. In the present case, the petitioner was acquitted by the Appellate Court. There can be no manner of doubt that the said acquittal revert back and the initial order of conviction would stand obliterated. On that basis there can be no manner of doubt that the substratum of the cause that had led to respondent's dismissal/discharge in the present case had ceased to exist. The same would entitle him to be reinstated in service and same has been duly performed by respondents. However, the grant of back wages is not automatic and such an entitlement has to be judged in the context of totality of the facts of a given case. His subsequent acquittal though obliterates his conviction but does not operate to retrospectively wipe out the legal consequences of the conviction. The entitlement of the petitioner to back wages has to be judged on the aforesaid basis. His reinstatement undoubtedly became due following his acquittal and as such the petitioner is entitled to back wages from the date of lodging the demand of the same for his acquittal until the date of his reinstatement. The Hon'ble Supreme Court in paragraph nos. 24 and 25 in case of Fisheries Department, State of Uttar Pradesh vs. Charan Singh, (2015) 8 SCC 150 has held as under: 24. The Hon'ble Supreme Court in paragraph nos. 24 and 25 in case of Fisheries Department, State of Uttar Pradesh vs. Charan Singh, (2015) 8 SCC 150 has held as under: 24. Thus, the principle of “no work no pay” as observed by this Court in a catena of cases does not have any significance to the fact situation of the present case as the termination of the services of the workman from the post of Tubewell Operator is erroneous in law in the first place, as held by us in view of the above stated reasons. 25. The respondent and his family members have been suffering for more that four decades as the source of their livelihood has been arbitrarily deprived by the appellant. Thereby, the right to liberty and livelihood guaranteed under Articles 19 and 21 of the Constitution of India have been denied to the respondent by the appellant as held in Olga Tellis vs. Bombay Municipal Corporation, wherein this Court has held thus: (SCC pp. 571-542, Para 32) 7. In view of the settled principles of law and in view of the Catena of Judgments of the Hon'ble Apex Court, this Court is of the view that the petitioner is entitled for back wages from the date of he had lodged the demand after his acquittal i.e. 22.11.2006, until the date of his reinstatement. With the aforesaid observation, the writ petition stands allowed.” 3. BCCL has filed IA No. 728 of 2018 to bring on record the relevant documents annexing the complete records produced in WP (S) No. 1323 of 2009. 4. The writ petitioner (hereinafter referred to as “respondent”) who was the permanent employee of BCCL was posted as Mining Sirdar at Moonidih Project. The respondent while working under BCCL was involved in Putki PS Case No. 32 of 2000 which was registered under sections 498A, 302, 201 and 120B of the Indian Penal Code on suspicion that his daughter-in-law was murdered in prosecution of criminal conspiracy hatched by him, his wife and son. The respondent was convicted and sentenced to RI for 10 years under section 304B of the Indian Penal Code by judgment dated 7th June 2003 passed in Sessions Trial No. 17 of 2001. On appeal, the said judgment was set-aside by judgment dated 29th August 2006 passed in Criminal Appeal No. 796 of 2003 with Criminal Appeal No. 467 of 2004. 5. On appeal, the said judgment was set-aside by judgment dated 29th August 2006 passed in Criminal Appeal No. 796 of 2003 with Criminal Appeal No. 467 of 2004. 5. The judgment in Criminal Appeal No. 796 of 2003 with Criminal Appeal No. 467 of 2004 records that no specific evidence came against Chhotu Ram Mahto and his wife so as to come to the definite conclusion that they ever demanded dowry or ill treated their daughter-in-law in connection to demand of dowry soon before her death. In paragraph no. 17 of the judgment, the learned Single Judge has held that the prosecution was not able to establish the charge against Chhotu Ram Mahto and his wife. A glance at the judgment in Criminal Appeal No. 796 of 2003 with Criminal Appeal No. 467 of 2004 does not disclose that the Court has recorded a finding that Chhotu Ram Mahto was falsely implicated in the criminal case. 6. In view of the aforesaid, the respondent cannot take a stand that he was unable to discharge his duties on account of illegal action on the part of the employer. 7. The respondent raised a claim through INMOSA (Indian National Mine Official Supervisory Staff Association) for his reinstatement in service with full back wages and by the reference dated 26th February 2008 the respondent was reinstated in service but without back wages. 8. Before the writ Court, the respondent took a stand that denial of back wages under the cloak of an unconscionable agreement dated 21st February 2008 was illegal, arbitrary and unconstitutional. BCCL took a plea that the respondent under clauses 8 and 9 of the settlement dated 21st February 2008 himself agreed not to claim back wages for the period between dismissal from service and the date of reinstatement and, moreover, he cannot claim back wages for the period he did not render services. 9. The stand taken by BCCL is recorded in paragraph no. 5 of the order dated 25th January 2007, which reads as under: “5. On the other hand, counter affidavit has been filed by the respondents. Learned counsel, Mr. Indrajeet Sinha appearing on behalf of the respondents vehemently opposes the prayer of the petitioner and submits that the petitioner being a workman should avail the alternative remedies of Industrial Dispute Act. 5 of the order dated 25th January 2007, which reads as under: “5. On the other hand, counter affidavit has been filed by the respondents. Learned counsel, Mr. Indrajeet Sinha appearing on behalf of the respondents vehemently opposes the prayer of the petitioner and submits that the petitioner being a workman should avail the alternative remedies of Industrial Dispute Act. In view of the settled principles of law regarding “no work no pay” the petitioner is not entitled for any payment of the period claimed. In view of the order of conviction in criminal case, the petitioner was dismissed from service w.e.f 3/4.12.2003 in terms of Clause 26.1.19 vide order no. 2974 dated 04.12.2004. Learned counsel further submits that in view of memorandum of settlement in terms of Industrial Disputes Act, no backwages would be payable to the petitioner. Learned counsel accordingly, submits that public policy of no work no pay applicable in the instant case, the petitioner, who has not work for the entire period, is not entitled to get backwages for the period he is claiming for and his claim is absolutely illegal, arbitrary and baseless.” 10. The learned counsel for BCCL would submit that the judgment in Fisheries Department, State of Uttar Pradesh vs. Charan Singh, (2015) 8 SCC 150 would indicate that it was rendered in the peculiar facts of the case. In that case, the concerned employee was removed from service on an erroneous assumption that he was a temporary employee whose services were no longer required by the department. For the aforesaid reason, it was held that the order of removal/dismissal from service was patently illegal and solely on account of an illegal action by the employer. 11. On the binding effect of settlement between the parties, our attention has been drawn to the judgments in Mohan Mahto vs. Central Coalfield Ltd. and Others, (2007) 8 SCC 549 and LPA No. 41 of 2018. 12. In LPA No. 41 of 2018, the Division Bench of this Court has held as under: “10. 11. On the binding effect of settlement between the parties, our attention has been drawn to the judgments in Mohan Mahto vs. Central Coalfield Ltd. and Others, (2007) 8 SCC 549 and LPA No. 41 of 2018. 12. In LPA No. 41 of 2018, the Division Bench of this Court has held as under: “10. In view of such discussion as above, the finding recorded by the learned Single Judge that the so called settlement signed between the parties is not a settlement under Section 18 of the Industrial Disputes Act, cannot be held to be a proper finding, therefore, said finding is not sustainable and in view of the discussion made hereinabove, this Court is of the considered view that the memorandum of settlement dated 05.11.2011 is a settlement arrived at in pursuance to Section 18(1) of the Industrial Disputes Act, 1947. Since the settlement arrived at under the provision of Section 18(1) of the Act, 1947 binds both the parties, therefore, the settlement dated 05.11.2011 which contains two fold settlement, first, about reinstatement of the writ petitioner and second, forgoing the right of back wages as also not to claim it in future from 01.07.2011 to 05.11.2011 which according to our considered view, will bind both the parties i.e. the writ petitioner/respondent and also the management/appellant in pursuance to the provision of Section 18(1) of the Industrial Disputes Act, 1947. Since both the terms of the memorandum binds both the parties, therefore, it is not available to the writ petitioner/respondent to question the memorandum of settlement which has taken shape of the statutory fervor in terms of Section 18(1) of the Industrial Disputes Act, 1947. The issue regarding the agreement arrived under Section 18 of the Industrial Disputes Act, 1947, fell for consideration before the Hon’ble Apex Court in the case of Mohan Mahto vs. Central Coalfield Ltd. and Others, (2007) 8 SCC 549 wherein it has been held by the Hon’ble Apex Court that the settlement arrived in pursuant to Section 18 is having its binding effect having its statutory fervor. Since the settlement in issue is about two aspect of the matter, first pertaining to reinstatement of petitioner and second pertains to back wages from 01.07.2011 to 05.11.2011, out of which the first one i.e. pertaining to reinstatement in service has been provided by the management in pursuance to the office order dated 07.11.2011 treating the period from 01.07.2011 to 05.11.2011 as dies non, the continuity of service can be taken only for the purpose of gratuity only. The writ petitioner being aggrieved with the order dated 07.11.2011 had approached this Court in writ jurisdiction in which direction has been given for payment of back wages. Now the question is, whether the writ petitioner/respondent can be allowed to question the office order dated 07.11.2011, once the settlement has been arrived by him with the management on 05.11.2011. The answer of this Court would be negative which is for the two reasons. First, the settlement dated 05.11.2011 since under Section 18(1) of the Industrial Disputes Act, 1947 which binds the parties, therefore, it is not permissible to the writ petitioner/respondent once to enter into the settlement, take benefit of reinstatement and subsequently question it before the Court of law. Since the settlement has got the statutory force, hence it has got its binding effect and further, since in terms of the memorandum of settlement dated 05.11.2011, the office order has been issued on 07.11.2011, as such, the office order dated 07.11.2011 cannot be read out in isolation leaving apart the memorandum of settlement dated 05.11.2011. Secondly, the writ petitioner cannot be allowed to act by accepting the one part of the order and declining to accept the other part which is contrary to the position of law to the effect that a person cannot be allowed to approbate and reprobate, as has been held by the Hon’ble Apex Court in the case of R.N. Gosain vs. Yashpal Dhir, (1992) 4 SCC 683 wherein at paragraph 10 which reads hereunder: “10. Law does not permit a person to both approbate and reprobate. Law does not permit a person to both approbate and reprobate. This principle is based on the doctrine of election which postulates that no party can accept and reject the same instrument and that “a person cannot say at one time that a transaction is valid and thereby obtain some advantage, to which he could only be entitled on the footing that it is valid, and then turn round and say it is void for the purpose of securing some other advantage.” [See: Verschures Creameries Ltd. vs. Hull and Netherlands Steamship Co. Ltd. Scrutton, L.J.] According to Halsbury’s order (for example for the payment of costs) a party may be precluded from saying that it is invalid and asking to set it aside.” (Para 1508)” The Hon’ble Apex Court in the case of State of Punjab and Others vs. Krishan Niwas, AIR 1997 SC 2349 wherein at paragraph 4 it has been laid down that once the employee has accepted the correctness of the order and then acted upon it, the same cannot be questioned by the concerned. 11. Learned counsel for the writ petitioner/respondent has tried to impress upon unreported judgment of the Division Bench of this Court passed in L.P.A. No. 397 of 2015 disposed of on 05.04.2016. According to the writ petitioner/respondent, in the similar circumstances, the Division Bench has passed order directing the authorities to make payment of back wages. This Court has examined the factual aspect of the aforesaid judgment of this Court passed in L.P.A. No. 397 of 2015 and finds therefrom that there is no consideration of any binding effect of the settlement before parties considering the provisions of Section 18(1) of the Industrial Disputes Act. 12. This Court has examined the fact about the binding precedence of the judgment by taking aid of the principle of per incuriam as has been considered by the Hon’ble Apex Court in the case of State of Orissa and Another vs. Mamata Mohanty, (2011) 3 SCC 436 wherein at paragraph 64, 65 and 66 it has been held, which reads hereunder as: “64. “Incuria” literally means “carelessness.” In practice per incuriam is taken to mean per ignoratium. The courts have developed this principle in relaxation of the rule of stare decisis. Thus the “quotable in law” is avoided and ignored if it is rendered, in ignoratium of a stature or other binding authority. 65. “Incuria” literally means “carelessness.” In practice per incuriam is taken to mean per ignoratium. The courts have developed this principle in relaxation of the rule of stare decisis. Thus the “quotable in law” is avoided and ignored if it is rendered, in ignoratium of a stature or other binding authority. 65. In Mamleshwar Prasad vs. Kanhaiya Lal this Court held: (SCC p.235, Para 7) “7...........Where by obvious inadvertence or oversight a judgment fails to notice a plain statutory provision or obligatory authority running counter to the reasoning and result reached, it may not have the sway of binding precedents. It should be a glaring case, an obtrusive omission.” 66. In State of Orissa vs. Damodar Nayak, question arose that in case the teacher at the time of appointment, did not possess the requisite eligibility i.e. qualifications, whether he could claim any benefit under the grant-in-aid scheme. The respondent teacher therein had secured 53.9% marks and required eligibility provided for 54%. This Court held that undoubtedly 53.9% marks were very close to required marks i.e. 54% but the teacher so appointed did not possess the eligibility. The court took notice of the fact that he was appointed in 1978 but acquired further qualification on 10.07.1987, and held: “Admittedly, since the first respondent on the date of his appointment was not possessing the requisite qualification and acquired the same only on 10.07.1987 he will be eligible to the benefit of the grant-in-aid w.e.f. 1.8.1987 and onwards.” 13. This Court after considering the doctrine of per incuriam, is of the view that since in the judgment rendered by the Division Bench in L.P.A. No. 397 of 2015, there is no consideration about the binding effect of Section 18(1) of the Industrial Disputes Act, 1947, as such the same would not have any binding effect. This Court on the basis of detailed discussion made hereinabove, is of the considered view that the judgment rendered by the learned Single Judge of this Court is held to be not sustainable in the eye of law and, accordingly, the same is quashed and set aside. 14. In the result, the appeal is allowed and the writ petition stands dismissed.” 13. There is no universal rule that in every case of reinstatement in service the employee shall be paid back wages. 14. In the result, the appeal is allowed and the writ petition stands dismissed.” 13. There is no universal rule that in every case of reinstatement in service the employee shall be paid back wages. In “Fisheries Department” the employee and his family members suffered for more than four decades on account of arbitrary action of the employer. The factual situation in “Fisheries Department” was entirely different which cannot be applied in the present case. It is also true that under clause 9 of the settlement dated 21st February 2008 which is signed by the respondent he cannot claim back wages. But what turns the case in favour of the employee for a while is the order dated 18th November 2003 passed in WP (S) No. 5476 of 2003. The said order reads as under: “Heard the counsel for the petitioner. Since the suspension is not a punishment, I do not find any reason to interfere with the same particularly when the same has been passed on the ground of conviction of the petitioner in a criminal case. However, it is clarified that the petitioner shall be entitled to get subsistence allowance regularly and in the event the order of conviction is set aside, he will be entitled to full salary in accordance with law. With the aforesaid observation this application is disposed of.” 14. In view of the order dated 25th January 2017 passed in WP (S) No. 1323 of 2009, the respondent is entitled for full salary as his conviction in the criminal case has been set-aside but this order would cover the period under suspension only. 15. Insofar as, the back wages from 22nd November 2006 is concerned, we gather from the records that there were some procedural requirements which were carried out before the order of reinstatement in service was passed on 26th February 2008. We are also conscious that under clause 28 of the Certified Standing Orders a workman can be removed or discharged from service without following the procedure laid down in clause 27 of the Certified Standing Order if he is convicted for a criminal offence, or the Chairman/ Managing Director of the company is satisfied that it is inexpedient or against the interest of security to continue to employ the workman. We further find that there is no provision under the Certified Standing Orders to provide back wages to a dismissed employee upon his reinstatement in service and, as noticed above, on the ground that he has being acquitted in the criminal case the respondent is not entitled for back wages from 22nd November 2006. 16. Except to the extent that under the order dated 18th November 2003 passed in WP (S) No. 5476 of 2003 the respondent shall get full salary during the period he remained under suspension, we are unable to sustain the order dated 25th January 2017 passed in WP (S) No. 1323 of 2009 and, accordingly, the said order is set aside. 17. LPA No. 291 of 2017 is allowed. 18. I.A. No. 1250 of 2022 stands disposed of.