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2022 DIGILAW 733 (GAU)

Kommik Kadu v. State of A. P.

2022-06-30

KAKHETO SEMA, SANJAY KUMAR MEDHI

body2022
JUDGMENT : SANJAY KUMAR MEDHI, J. 1. The present two appeals have been preferred against the judgment and order dated 05.03.2021 passed in WP(C)/56(AP)/2015. While the WA/8(AP)/2021 has been preferred by the State of Arunachal Pradesh challenging the direction for reinstatement of the writ petitioner in service, WA/10(AP)/2021 has been preferred by the writ petitioner against the refusal of the learned Single Judge to the prayer for payment of back wages. Both the appeals being heard together, are disposed of by this common judgment and order. 2. Before coming to the issues which would call for a determination, it would be convenient to put on record the brief facts. 3. The writ petitioner was working as an Assistant (U/S) in the Police Head Quarters (PHQ) at Itanagar and in course of her employment, she was attached as Cashier in the office of the Superintendent of Police, Chimpu for the period January to December, 2009. While working in the said capacity, the authorities, at the time of audit in the year 2011, could detect major anomalies with regard to certain deposits. Accordingly, two numbers of FIRs were lodged - the first one was with regard to failure on the part of the writ petitioner to deposit VAT/Entry Tax in the Government account amounting to Rs. 25,42,082/-. In the second FIR, the allegation was that though the petitioner had made an entry in the Cash Book regarding payment of an amount of Rs. 2,29,673/- to a Firm, namely, M/s. Arunachal Agency House, such payment was never actually received by the said Firm. Simultaneously, two departmental proceedings were also initiated against the writ petitioner and she was put under suspension. It is the case of the writ petitioner that the allegations in the two departmental proceedings were same as made in the two FIRs which led to registration of Itanagar PS Case Nos. 183/2011 and 184/2011. Further, without waiting for the result of the criminal cases, the departmental proceedings were completed culminating in the order dated 18.09.2014 by which the writ petitioner was dismissed from service. The writ petitioner had unsuccessfully preferred a departmental appeal which was rejected vide order dated 13.01.2015. 4. The writ petitioner, then instituted WP(C)/56(AP)/2015 challenging the order of dismissal from her service as well as the order passed by the Appellate Authority. The writ petitioner had unsuccessfully preferred a departmental appeal which was rejected vide order dated 13.01.2015. 4. The writ petitioner, then instituted WP(C)/56(AP)/2015 challenging the order of dismissal from her service as well as the order passed by the Appellate Authority. During the pendency of the writ petition, Itanagar PS Case No. 183/2011 culminated in a Final Report dated 25.05.2016. The aforesaid writ petition came up for consideration and the Hon’ble Single Judge, vide the judgment and order dated 05.03.2021 had allowed the same by directing reinstatement of the writ petitioner in her service. However, her claim for back wages was rejected. While the State is aggrieved by the direction to reinstate the petitioner in her service and has preferred WA/8(AP)/2021, thewrit petitioner is aggrieved by rejection of her claim for back wages and has preferred WA/10(AP)/2021 against the impugned judgment dated 05.03.2021. 5. We have heard Shri S. Tapin, learned Senior Government Advocate, AP for the appellants in WA/8(AP)/2021, who has also represented respondents in WA/10(AP)/2021. Correspondingly, Shri I. Choudhury, learned Senior Counsel assisted by Shri S. Biswakarma, learned counsel represented the writ petitioner in both the appeals. The materials produced before this Court have been carefully examined. 6. Shri Tapin, the learned Sr. Government Advocate has submitted that the very basis of passing the impugned judgment is erroneous. Reliance has been placed upon the law laid down by the Hon’ble Supreme Court in the case of M. Paul Anthony vs. Bharat Gold Mines Ltd. (1999) 3 SCC 679 . It is submitted that neither the charges in the criminal cases and the departmental proceedings are the same nor the manner in which the charges are required to be proved. It is submitted that even the witnesses are not the same. By drawing the attention of this Court to the averments made in paragraph 7 of the writ petition, the learned State Counsel submits that the writ petitioner has herself admitted that actually the amount realized under VAT/Entry Tax was Rs. 22,52,452/- and not Rs. 25,42,082/- as mentioned in the Articles of Charge. Reference has also been made to the statement of the delinquent dated 18.05.2013 wherein in paragraph 3, the delinquent has admitted of depositing VAT amount to the tune of Rs. 26,07,080/-. 22,52,452/- and not Rs. 25,42,082/- as mentioned in the Articles of Charge. Reference has also been made to the statement of the delinquent dated 18.05.2013 wherein in paragraph 3, the delinquent has admitted of depositing VAT amount to the tune of Rs. 26,07,080/-. Reacting to the averments of the writ petitioner regarding non-furnishing of documents, attention of this Court has been drawn to the statement of defence of the petitioner dated 11.01.2012. In the said statement, the date of asking the documents appears to be 26.06.2011 which is prior to the date of the charge memo which is 30.12.2011. The learned State Counsel has also referred to the last page of the charge memo which includes list of documents and list of witnesses and also the fact that the writ petitioner on her own volition had refused to cross-examine the witnesses. Referring to the grounds of challenge of dismissal order, the learned State Counsel submits that the same are vague and irrelevant. 7. In support of his submissions, Shri Tapin, learned State Counsel has placed reliance upon the following case laws: (i) B.C. Chaturvedi vs. Union of India, (1995) 6 SCC 749 (ii) Union of India vs. K.G. Soni, (2006) 6 SCC 794 (iii) High Court of Patna vs. Pandey Gajendra Prasad, (2012) 6 SCC 357 8. In the case of B.C. Chaturvedi (supra), the Hon’ble Supreme Court has reiterated the powers of High Court in exercise of writ jurisdiction wherein a penalty imposed in a disciplinary-proceeding can be interfered with if such penalty is shockingly disproportionate to the gravity of the charges. For ready reference, the relevant paragraph is extracted hereunder: “25. No doubt, while exercising power under Article 226 of the Constitution, the High Courts have to bear in mind the restraints inherent in exercising power of judicial review. It is because of this that substitution of the High Court’s view regarding appropriate punishment is not permissible. But for this constraint, I would have thought that the law-makers do desire application of judicial mind to the question of even proportionality of punishment/penalty. I have said so because the Industrial Disputes Act, 1947 was amended to insert Section 11-A in it to confer this power even on a labour court/industrial tribunal. It may be that this power was conferred on these adjudicating authorities because of the prevalence of unfair labour practice or victimisation by the management. I have said so because the Industrial Disputes Act, 1947 was amended to insert Section 11-A in it to confer this power even on a labour court/industrial tribunal. It may be that this power was conferred on these adjudicating authorities because of the prevalence of unfair labour practice or victimisation by the management. Even so, the power under Section 11-A is available to be exercised, even if there be no victimisation or taking recourse to unfair labour practice. In this background, I do not think if we would be justified in giving much weight to the decision of the employer on the question of appropriate punishment in service matters relating to government employees or employees of public corporations. I have said so because if need for maintenance of office discipline be the reason of our adopting a strict attitude qua the public servants, discipline has to be maintained in the industrial sector also. The availability of appeal etc. to public servants does not make a real difference, as the appellate/revisional authority is known to have taken a different view on the question of sentence only rarely. I would, therefore, think that but for the self-imposed limitation while exercising power under Article 226 of the Constitution, there is no inherent reason to disallow application of judicial mind to the question of proportionality of punishment/penalty. But then, while seized with this question as a writ court interference is permissible only when the punishment/penalty is shockingly disproportionate.” 9. The cases of K.G. Soni and Registrar General, High Court of Patna have been cited with regard to the powers of judicial review which would revolve around the decision making process only. Following are the relevant observations in K.G. Soni (supra): “14. The common thread running through in all these decisions is that the court should not interfere with the administrator’s decision unless it was illogical or suffers from procedural impropriety or was shocking to the conscience of the court, in the sense that it was in defiance of logic or moral standards. In view of what has been stated in Wednesbury case the court would not go into the correctness of the choice made by the administrator open to him and the court should not substitute its decision to that of the administrator. The scope of judicial review is limited to the deficiency in the decision-making process and not the decision. 15. In view of what has been stated in Wednesbury case the court would not go into the correctness of the choice made by the administrator open to him and the court should not substitute its decision to that of the administrator. The scope of judicial review is limited to the deficiency in the decision-making process and not the decision. 15. To put it differently, unless the punishment imposed by the disciplinary authority or the Appellate Authority shocks the conscience of the court/tribunal, there is no scope for interference. Further, to shorten litigations it may, in exceptional and rare cases, impose appropriate punishment by recording cogent reasons in support thereof. In the normal course if the punishment imposed is shockingly disproportionate, it would be appropriate to direct the disciplinary authority or the Appellate Authority to reconsider the penalty imposed.” In the case of Registrar General, High Court of Patna (supra), the following has been observed: “18. It is trite that the scope of judicial review, under Article 226 of the Constitution, of an order of punishment passed in departmental proceedings, is extremely limited. While exercising such jurisdiction, interference with the decision of the departmental authorities is permitted, if such authority has held the proceedings in violation of the principles of natural justice or in violation of statutory regulations prescribing the mode of such enquiry or if the decision of the authority is vitiated by considerations extraneous to the evidence on the merits of the case, or if the conclusion reached by the authority, on the face of it, is wholly arbitrary or capricious that no reasonable person could have arrived at such a conclusion, or grounds very similar to the above.” 10. It is finally submitted that the duty discharged by the writ petitioner in the Accounts Department was in fiduciary capacity wherein the primary and foremost requirement is trust, which in the instant case, appears to be lacking. In view of that, the dismissal of the writ petitioner from service was justified and commensurate to the charges levelled against her. The learned Sr. Government Advocate, accordingly prays for allowing WA/8(AP)/2021 by setting aside the judgment order dated 05.03.2021 by which the order of dismissal from service was set aside. In view of that, the dismissal of the writ petitioner from service was justified and commensurate to the charges levelled against her. The learned Sr. Government Advocate, accordingly prays for allowing WA/8(AP)/2021 by setting aside the judgment order dated 05.03.2021 by which the order of dismissal from service was set aside. Consequently, Shri Tapin submits that if the order of dismissal is kept intact, there is no requirement to answer the prayer of the writ petitioner in WA/10(AP)/2021 praying for release of back wages. 11. Per contra, Shri I. Choudhury, learned Senior Counsel for the writ petitioner, who is the appellant in WA/10(AP)/2021 and respondent in WA/08(AP)/2021 submits that the learned Single Judge is fully justified in interfering with the order of dismissal from service of the writ petitioner. He submits that since the dismissal from service has been interfered with, the writ petitioner ought to be granted the back wages and for that reason, the appeal has been preferred by the writ petitioner. 12. Elaborating his submissions, the learned Senior Counsel for the writ petitioner submits that the principle laid down in the case of M. Paul Anthony (supra) is squarely applicable and rather, the present case stands on a better footing. While in the case of M. Paul Anthony (supra), there was an acquittal in the trial, in the instant case, so far as the first FIR is concerned, the same had culminated in a Final Report dated 25.05.2016 meaning thereby that even at the stage of investigation, there were no materials to frame the charge. It is, therefore, submitted that when the disciplinary proceeding is based on the same allegation, the authorities could not have come to a finding of guilt. 13. Referring to the first charge, the learned Senior Counsel submits that the same actually amounts to double jeopardy and is violative of the rights under Article 20(2) of the Constitution of India. He contends that the amount was actually lying in the DCR Chest and only to overcome the audit, the charge was framed against the writ petitioner. 14. It is the submission of the writ petitioner that there was no proper enquiry at all, inasmuch as, all the evidence which were documentary in nature were lying with the police as the same were seized in connection with the aforementioned police cases. 15. 14. It is the submission of the writ petitioner that there was no proper enquiry at all, inasmuch as, all the evidence which were documentary in nature were lying with the police as the same were seized in connection with the aforementioned police cases. 15. With regard to the second charge, the learned Senior Counsel submits that the only evidence is the statement of PW-5 which is neither corroborated by any material evidence nor by any other witnesses. It is further submitted that the connected police case is in the stage of trial and even otherwise, grave prejudice was caused to the writ petitioner in defending herself as the same amounted to exposing her defence in the criminal case. It is additionally submitted that entering in the Cash Book a bill of Rs. 2,29,673/- by the petitioner to have been paid to a Firm, namely, M/s. Arunachal Agency House was an inadvertent error which was subsequently rectified and therefore, there was no question of any loss suffered by the State. 16. Shri Choudhury, learned Senior Counsel in support of his submissions has relied upon the following case laws: (i) M.V. Bijlani vs. Union of India, (2006) 5 SCC 88 (ii) G.M. Tank vs. State of Gujarat, (2006) 5 SCC 446 (iii) Union of India vs. H.C. Goel, AIR 1964 SC 364 (iv) Siddharth Mohanlal Sharma vs. South Guj. University, (1981) SCC Online Guj. 120 (v) Pradeep vs. Manganese Ore (India) Ltd. (2022) 3 SCC 683 (vi) Commissioner, Karnataka Housing Board vs. C. Muddaiah, (2007) 7 SCC 689 17. In the case of M.V. Bijlani (supra), it has been reiterated that though the standard of proof in a Disciplinary Proceeding may not be that strict as in a criminal case, there has to be adequate materials to substantiate the charges. The relevant paragraph is extracted herein-below: “25. It is true that the jurisdiction of the court in judicial review is limited. Disciplinary proceedings, however, being quasi-criminal in nature, there should be some evidence to prove the charge. The relevant paragraph is extracted herein-below: “25. It is true that the jurisdiction of the court in judicial review is limited. Disciplinary proceedings, however, being quasi-criminal in nature, there should be some evidence to prove the charge. Although the charges in a departmental proceeding are not required to be proved like a criminal trial i.e. beyond all reasonable doubt, we cannot lose sight of the fact that the enquiry officer performs a quasi-judicial function, who upon analysing the documents must arrive at a conclusion that there had been a preponderance of probability to prove the charges on the basis of materials on record. While doing so, he cannot take into consideration any irrelevant fact. He cannot refuse to consider the relevant facts. He cannot shift the burden of proof. He cannot reject the relevant testimony of the witnesses only on the basis of surmises and conjectures. He cannot enquire into the allegations with which the delinquent officer had not been charged with.” 18. In the case of G.M. Tank (supra), it has been held that when the criminal cases based on the same charge which has ended in an honourable acquittal, the petitioner should not be prosecuted again in the disciplinary proceeding. The following are the relevant paragraphs: “20. It is thus seen that this is a case of no evidence. There is no iota of evidence against the appellant to hold that the appellant is guilty of having illegally accumulated excess income by way of gratification. The respondent failed to prove the charges levelled against the appellant. It is not in dispute that the appellant being a public servant used to submit his yearly property return relating to his movable and immovable property and the appellant has also submitted his return in the year 1975 showing his entire movable and immovable assets. No query whatsoever was ever raised about the movable and immovable assets of the appellant. In fact, the respondent did not produce any evidence in support of and/or about the alleged charges levelled against the appellant. Likewise, the criminal proceedings were initiated against the appellant for the alleged charges punishable under the provisions of the PC Act on the same set of facts and evidence. It was submitted that the departmental proceedings and the criminal case are based on identical and similar (verbatim) set of facts and evidence. Likewise, the criminal proceedings were initiated against the appellant for the alleged charges punishable under the provisions of the PC Act on the same set of facts and evidence. It was submitted that the departmental proceedings and the criminal case are based on identical and similar (verbatim) set of facts and evidence. The appellant has been honourably acquitted by the competent court on the same set of facts, evidence and witness and, therefore, the dismissal order based on the same set of facts and evidence on the departmental side is liable to be set aside in the interest of justice.” ................... 31. In our opinion, such facts and evidence in the department as well as criminal proceedings were the same without there being any iota of difference, the appellant should succeed. The distinction which is usually proved between the departmental and criminal proceedings on the basis of the approach and burden of proof would not be applicable in the instant case. Though finding recorded in the domestic enquiry was found to be valid by the Courts below, when there was an honourable acquittal of the employee during the pendency of the proceedings challenging the dismissal, the same requires to be taken note of and the decision in Paul Anthony's case (supra) will apply. We, therefore, hold that the appeal filed by the appellant deserves to be allowed.” 19. In the case of H.C. Goel (supra), the Hon’ble Supreme Court has observed as follows: “20. This conclusion does not finally dispose of the appeal. It still remains to be considered whether the respondent is not right when he contends that in the circumstances of this case, the conclusion of the Government is based on no evidence whatever. It is a conclusion which is perverse and, therefore, suffers from such an obvious and patent error on the face of the record that the High Court would be justified in quashing it. In dealing with writ petitions filed by public servants who have been dismissed, or otherwise dealt with so as to attract Article 311(2), the High Court under Article 226 has jurisdiction to enquire whether the conclusion of the Government on which the impugned order of dismissal rests is not supported by any evidence at all. In dealing with writ petitions filed by public servants who have been dismissed, or otherwise dealt with so as to attract Article 311(2), the High Court under Article 226 has jurisdiction to enquire whether the conclusion of the Government on which the impugned order of dismissal rests is not supported by any evidence at all. It is true that the order of dismissal which may be passed against a Government servant found guilty of misconduct, can be described as an administrative order; nevertheless, the proceedings held against such a public servant under the statutory rules to determine whether he is guilty of the charges framed against him are in the nature of quasi-judicial proceedings and there can be little doubt that a writ of certiorari, for instance, can be claimed by a public servant if he is able to satisfy the High Court that the ultimate conclusion of the Government in the said proceedings, which is the basis of his dismissal, is based on no evidence. In fact, in fairness to the learned Attorney-General, we ought to add that he did not seriously dispute this position in law. 21. He, however, attempted to argue that if the appellant acted bona fide, then the High Court would not be justified in interfering with its conclusion though the High Court may feel that the conclusion is based on no evidence. His contention was that cases where conclusions are reached by the Government without any evidence, could not, in law, be distinguished from cases of mala-fides and so he suggested that perverse conclusions of fact may be and can be attacked only on the ground that they are mala-fide and since mala-fide were not alleged in the present case, it was not open to the respondent to contend that the view taken by the appellant can be corrected in writ proceedings. 22. We are not prepared to accept this contention. Mala-fide exercise of power can be attacked independently on the ground that it is mala, fide. Such an exercise of power is always liable to be quashed on the main ground that it is not a bona fide exercise of power. 22. We are not prepared to accept this contention. Mala-fide exercise of power can be attacked independently on the ground that it is mala, fide. Such an exercise of power is always liable to be quashed on the main ground that it is not a bona fide exercise of power. But we are not prepared to hold that if mala-fide are not alleged and bona fides are assumed in favour of the appellant, its conclusion on a question of fact cannot be successfully challenged even if it is manifest that there is no evidence to support it. The two infirmities are separate and distinct though, conceivably, in some cases both may be present. There may be cases of no evidence even where the Government is acting bona fide; the said infirmity may also exist where the Government is acting mala-fide and in that case, the conclusion of the Government not supported by any evidence may be the result of mala-fides but that does not mean that if it is proved that there is no evidence to support the conclusion of the Government, a writ of certiorari will not issue without further proof of mala-fides. That is why we are prepared to accept the learned Attorney-General’s argument that since no mala-fides are alleged against the appellant in the present case, no writ of certiorari can be issued in favour of the respondent.” 20. The Division Bench of Hon'ble Gujarat High Court in the case of Siddarth Mohanlal (supra), discussed the consequence of an order which is based on no evidence. The same has been cited by the petitioner in view of the fact that all the materials (documents) were in the police custody and nothing as such, could be proved. 21. In the case of Pradeep (supra), the Hon'ble Supreme Court was dealing with a case of back wages where the High Court had rejected the same on the ground that the employee was gainfully employed. For ready reference, the relevant paragraphs are extracted herein-below: 5. Learned counsel for the respondent would oppose the appeal by pointing out that the burden lay with the employee, if the appellant wished to show that he had not worked during the period that he was kept out of the employment. The appellant’s counsel joins issue with this proposition. For ready reference, the relevant paragraphs are extracted herein-below: 5. Learned counsel for the respondent would oppose the appeal by pointing out that the burden lay with the employee, if the appellant wished to show that he had not worked during the period that he was kept out of the employment. The appellant’s counsel joins issue with this proposition. He points out that judgments of this Court establish the principle that all that is required is that the workman/appellant must plead that he had not worked during the period when he was kept out of employment by illegal termination. In this regard, the appellant drew support from a large body of case law. In particular, he drew our attention to the judgment of this Court in Deepali Gundu Surwase vs. Kranti Junior Adhyapak Mahavidyalaya (D.Ed.) and Others, (2013) 10 SCC 324 . The Bench of two learned Judges in the said case has, after reviewing of case law which included survey of two earlier three Judges Benches of this Court, concluded 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. 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. 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. 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-a-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. Therefore, in such cases it would be prudent to adopt the course suggested in Hindustan Tin Works (P) Ltd. vs. Employees, (1979) 2 SCC 80 : 1979 SCC (L&S) 53. 38.7. The observation made in J.K. Synthetics Ltd. vs. K.P. Agrawal, (2007) 2 SCC 433 : (2007) 1 SCC (L&S) 651 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 [Hindustan Tin Works (P) Ltd. vs. Employees, (1979) 2 SCC 80 : 1979 SCC (L&S) 53, Surendra Kumar Verma vs. Central Govt. Industrial Tribunal-cum-Labour Court, (1980) 4 SCC 443 : 1981 SCC (L&S) 16] 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. ................... 42. In the result, the appeal is allowed, the impugned order [Kranti Junior Adhyapak Mahavidyalaya vs. State of Maharashtra, (2012) 1 Mah. L.J. 370] is set aside and the order passed by the Tribunal is restored. The management shall pay full back wages to the appellant within four months from the date of receipt of copy of this order failing which it shall have to pay interest at the rate of 9% per annum from the date of the appellant's suspension till the date of actual reinstatement. The management shall pay full back wages to the appellant within four months from the date of receipt of copy of this order failing which it shall have to pay interest at the rate of 9% per annum from the date of the appellant's suspension till the date of actual reinstatement. It is also made clear that in the event of non-compliance with this order, the management shall make itself liable to be punished under the Contempt of Courts Act, 1971. 22. The case of Commissioner, Karnataka Housing Board vs. C. Muddaiah, (2007) 7 SCC 689 has been cited on behalf of the writ petitioner with regard to the powers and jurisdiction of the Court to give relief in case of gross injustice. The relevant paragraphs are extracted herein-below: “31. We are of the considered opinion that once a direction is issued by a competent Court, it has to be obeyed and implemented without any reservation. If an order passed by a Court of Law is not complied with or is ignored, there will be an end of Rule of Law. If a party against whom such order is made has grievance, the only remedy available to him is to challenge the order by taking appropriate proceedings known to law. But it cannot be made ineffective by not complying with the directions on a specious plea that no such directions could have been issued by the Court. In our judgment, upholding of such argument would result in chaos and confusion and would seriously affect and impair administration of justice. The argument of the Board, therefore, has no force and must be rejected. 32. The matter can be looked at from another angle also. It is true that while granting a relief in favour of a party, the Court must consider the relevant provisions of law and issue appropriate directions keeping in view such provisions. There may, however, be cases where on the facts and in the circumstances, the Court may issue necessary directions in the larger interest of justice keeping in view the principles of justice, equity and good conscience. Take a case, where ex-facie injustice has been meted out to an employee. In spite of the fact that he is entitled to certain benefits, they had not been given to him. His representations have been illegally and unjustifiably turned down. He finally approaches a Court of Law. Take a case, where ex-facie injustice has been meted out to an employee. In spite of the fact that he is entitled to certain benefits, they had not been given to him. His representations have been illegally and unjustifiably turned down. He finally approaches a Court of Law. The Court is convinced that gross injustice has been done to him and he was wrongfully, unfairly and with oblique motive deprived of those benefits. The Court, in the circumstances, directs the Authority to extend all benefits which he would have obtained had he not been illegally deprived of them. Is it open to the Authorities in such case to urge that as he has not worked (but held to be illegally deprived), he would not be granted the benefits? Upholding of such plea would amount to allowing a party to take undue advantage of his own wrong. It would perpetrate injustice rather than doing justice to the person wronged. We are conscious and mindful that even in absence of statutory provision, normal rule is “no work no pay.” In appropriate cases, however, a Court of Law may, nay must, take into account all the facts in their entirety and pass an appropriate order in consonance with law. The Court, in a given case, may hold that the person was willing to work but was illegally and unlawfully not allowed to do so. The Court may in the circumstances, direct the Authority to grant him all benefits considering “as if he had worked.” It, therefore, cannot be contended as an absolute proposition of law that no direction of payment of consequential benefits can be granted by a Court of Law and if such directions are issued by a Court, the Authority can ignore them even if they had been finally confirmed by the Apex Court of the country (as has been done in the present case). The bald contention of the appellant-Board, therefore, has no substance and must be rejected.” 23. While contending that the interference of the learned Single Judge was fully justified which does not call for any alteration in the appeal, since the order of dismissal from service is set aside, the writ petitioner is entitled to an order of payment of back wages and it is with this prayer that WA/10(AP)/2021 has been preferred. 24. While contending that the interference of the learned Single Judge was fully justified which does not call for any alteration in the appeal, since the order of dismissal from service is set aside, the writ petitioner is entitled to an order of payment of back wages and it is with this prayer that WA/10(AP)/2021 has been preferred. 24. Responding to the aforesaid submission regarding claim of back wages, Shri Tapin, learned State Counsel has submitted that without prejudice to his contention that the dismissal itself is justified, if the issue arises for consideration, it has to be taken into account that back wages cannot be claimed as a matter of right and only when an employee is debarred from discharging his duties for no fault of his, the question might arise. However, in the instant case, there were serious charges against the writ petitioner which were held to be proved in the disciplinary proceeding leading to her dismissal. 25. The rival submissions made by the learned counsel for the parties have been duly considered and the materials placed before this Court carefully examined. 26. While the State is aggrieved by the judgment of the learned Single Judge dated 05.03.2021 by which the writ petition has been allowed and the order of dismissal from service has been set aside, the writ petitioner is aggrieved by that part of the judgment wherein an observation has been made that the petitioner shall not be entitled to any back wages. 27. A reading of the charge memo vis-a-vis the allegation in the two criminal cases would establish that the charges are not only similar but also based on the same materials. Though acquittal in the criminal case, per se may not lead to exoneration of a delinquent in a disciplinary proceeding, in the instant case, what is seen is that the charges are the same. Though the degree of proof in a criminal case and in a disciplinary proceeding is different and, therefore, acquittal in a criminal case may not necessarily lead to an automatic exoneration in the disciplinary proceeding, the aforesaid point was not taken up by the State. However, as indicated above, in the present case, the allegations are the same. 28. Though the degree of proof in a criminal case and in a disciplinary proceeding is different and, therefore, acquittal in a criminal case may not necessarily lead to an automatic exoneration in the disciplinary proceeding, the aforesaid point was not taken up by the State. However, as indicated above, in the present case, the allegations are the same. 28. In the case of M. Paul Anthony (supra) which has been referred above, the charges in the disciplinary proceedings and the connected criminal case were the same and the Hon’ble Supreme Court has held as follows: “13. As we shall presently see, there is a consensus of judicial opinion amongst the High Courts whose decisions we do not intend to refer in this case and the various pronouncements of this Court, which shall be copiously referred to, on the basic principle that proceedings in a criminal case and the departmental proceedings can proceed simultaneously with a little exception. As we understand, the basis for this proposition is that proceedings in a criminal case and the departmental proceedings operate in distinct and different jurisdictional areas. Whereas in the departmental proceedings, where a charge relating to misconduct is being investigated, the factors operating in the mind of the Disciplinary Authority may be many such as enforcement of discipline or to investigate the level of integrity of the delinquent or the other staff, the standard of proof required in the those proceedings is also different than that required in a criminal case. While in the departmental proceedings the standard of proof is one of preponderance of the probabilities, in a criminal case, the charge has to be proved by the prosecution beyond reasonable doubts. The little exception may be where the departmental proceedings and the criminal case are based on the same set of facts and the evidence in both the proceedings is common without there being a variance. 14. The little exception may be where the departmental proceedings and the criminal case are based on the same set of facts and the evidence in both the proceedings is common without there being a variance. 14. The first decision of this Court on the question was rendered in Delhi Cloth and General Mills Ltd. vs. Kushal Bhan, (1960) 3 SCR 227 : AIR 1960 SC 806 : (1960) 1 Lab L.J. 520, in which it was observed as under (Para 3 of AIR): “It is true that very often employers stay enquiries pending the decision of the criminal trial courts and that is fair; but we cannot say that principles of natural justice require that an employer must wait for the decision at least of the criminal trial Court before taking action against an employee. In Bimal Kanta Mukherjee vs. M/s. Newsman's Printing Works, 1956 Lab A.C. 188, this was the view taken by the Labour Appellate Tribunal. We may, however, add that if the case is of a grave nature or involves questions of fact or law, which are not simple, it would be advisable for the employer to await the decision of the trial Court, so that the defence of the employee in the criminal case may not be prejudiced.” 15. This was followed by Tata Oil Mills Co. Ltd. vs. Workmen, (1964) 7 SCR 555 : AIR 1965 SC 155 , in which it was, inter-alia, laid down as under: “There is yet another point which remains to be considered. The Industrial Tribunal appears to have taken the view that since criminal proceedings had been started against Raghavan, the domestic enquiry should have been stayed pending the final disposal of the said criminal proceedings. As this Court has held in the Delhi Cloth and General Mills Ltd. vs. Kushal Bhan, AIR 1960 SC 806 , it is desirable that if the incident giving rise to a charge framed against a workman in a domestic enquiry is being tried in a criminal Court, the employer should stay the domestic enquiry pending the final disposal of the criminal case.” ................... 34. There is yet another reason for discarding the whole of the case of the respondents. As pointed out earlier, the criminal case as also the departmental proceedings were based on identical set of facts namely, he raid conducted at the appellant's residence and recovery of incriminating articles therefrom. 34. There is yet another reason for discarding the whole of the case of the respondents. As pointed out earlier, the criminal case as also the departmental proceedings were based on identical set of facts namely, he raid conducted at the appellant's residence and recovery of incriminating articles therefrom. The findings recorded by the Inquiry Officer, a copy of which has been placed before us, indicate that the charges framed against the appellant were sought to be proved by Police Officers and Panch witnesses, who had raided the house of the appellant and had effected recovery. They were the only witnesses examined by the Inquiry Officer and the Inquiry Officer, relying upon their statements, came to the conclusion that the charges were established against the appellant. The same witnesses were examined in the criminal case but the Court, on a consideration of the entire evidence, came to the conclusion that no search was conducted nor was any recovery made from the residence of the appellant. The whole case of the prosecution was thrown out and the appellant was acquitted. In this situation, therefore, where the appellant is acquitted by a judicial pronouncement with the finding that the “raid and recovery” at the residence of the appellant were not proved, it would be unjust, unfair and rather oppressive to allow the findings recorded at the ex-parte departmental proceedings, to stand. 35. Since the facts and the evidence in both the proceedings, namely, the departmental proceedings and the criminal case were the same without there being any iota of difference, the distinction, which is usually drawn as between the departmental proceedings and the criminal case on the basis of approach and burden of proof, would not be applicable to the instant case.” 29. In the case of G.M. Tank (supra), it has been held that when the criminal case based on the same charge which has ended in an honourable acquittal, the petitioner should not be prosecuted again in the disciplinary proceeding. This Court is of the opinion that so far as the first charge is concerned, the connected police case had ended up in a Final Report which was accepted by the learned Magistrate and has attained finality. In that view of the matter, the case of the petitioner stands even on a better footing than the case of G.M. Tank (supra) so far as the first charge is concerned. In that view of the matter, the case of the petitioner stands even on a better footing than the case of G.M. Tank (supra) so far as the first charge is concerned. Therefore, this Court would not like to interfere with the findings of the learned Single Judge so far as the first charge is concerned. 30. However, so far as the second charge is concerned, this Court has observed that the concerned criminal case is still at the trial stage. Under those circumstances, it has to be examined as to whether the correct approach was adopted to go ahead with the disciplinary proceeding. Since, the charge is same both in the second criminal case and charge no. 2 in the show cause notice, it was not proper on the part of the disciplinary authority to go ahead with the second charge as the same would amount to exposing the defence of the writ petitioner in the criminal case. 31. The Hon’ble Supreme Court was seized of a similar matter in the case of Stanzen Toyotetsu India Pvt. Ltd. vs. Girish V. and Others, (2014) 3 SCC 636 . Since, the law on the field was a wavering one, the Hon’ble Supreme Court held that the interest of justice would be served if the disciplinary-proceeding is put on hold till completion of the criminal case. The Hon’ble Supreme Court had further stipulated a time for such suspension of the departmental proceeding. For ready reference, the relevant extract of the said judgment is quoted herein-below: “19. In the circumstances and taking into consideration all aspects mentioned above as also keeping in view the fact that all the three courts below have exercised their discretion in favour of staying the ongoing disciplinary proceedings, we do not consider it fit to vacate the said order straightaway. Interests of justice would, in our opinion, be sufficiently served if we direct the court dealing with the criminal charges against the respondents to conclude the proceedings as expeditiously as possible but in any case within a period of one year from the date of this order. We hope and trust that the trial court will take effective steps to ensure that the witnesses are served, appear and are examined. The court may for that purpose adjourn the case for no more than a fortnight every time an adjournment is necessary. We hope and trust that the trial court will take effective steps to ensure that the witnesses are served, appear and are examined. The court may for that purpose adjourn the case for no more than a fortnight every time an adjournment is necessary. We also expect the accused in the criminal case to cooperate with the trial court for an early completion of the proceedings. We say so because experience has shown that the trials often linger on for a long time on account of non-availability of the defence lawyers to cross-examine the witnesses or on account of adjournments sought by them on the flimsiest of the grounds. All that needs to be avoided. In case, however, the trial is not completed within the period of one year from the date of this order, despite the steps which the trial court has been directed to take the disciplinary proceedings initiated against the respondents shall be resumed and concluded by the inquiry officer concerned. The impugned orders shall in that case stand vacated upon expiry of the period of one year from the date of the order.” 32. Under the existing law holding the field, to come to a finding by the disciplinary authority during the pendency of the criminal case would amount to causing prejudice to the delinquent writ petitioner. Therefore, the part of the proceeding so far as it relates to the second charge is liable to be interfered with to the extent that the same be kept on hold for a period of one year or till the criminal case comes to an end, whichever is earlier. 33. So far as the claim for back wages is concerned, this Court has noticed that there is no prayer in the writ petition for such relief. However, in exercise of powers under Article 226 of the Constitution of India, this Court certainly has the jurisdiction to mould the relief as observed by the Hon’ble Supreme Court in the case of B.C. Chaturvedi vs. Union of India, (1995) 6 SCC 749 . However, everything depends on the facts and circumstances of the case regarding a claim of back wages and there is no Rule of thumb. 34. However, everything depends on the facts and circumstances of the case regarding a claim of back wages and there is no Rule of thumb. 34. In the case of State of Kerala and Others vs. E.K. Bhaskaran Pillai, (2007) 6 SCC 524 , the Hon’ble Supreme Court, after discussing the principle of ‘No work No pay’ has laid down that so far as the situation with regard to payment of back wages, the same depends on the facts and circumstances of the case. The Hon’ble Supreme Court has gone to the extent of giving some instances to explain that various facets are required to be considered. It has also been held that it is very difficult to lay down any hard and fast rule and the principle cannot be accepted as the Rule of thumb. 35. In the instant case, it cannot be said that there was no ground, whatsoever, to initiate the disciplinary-proceeding against the writ petitioner and further, nothing is discernible from the records that there has been any gross procedural illegality in the disciplinary-proceeding which renders the same void ab initio. Under such circumstances, this Court is of the opinion that the observation of the learned Single Judge regarding non-entitlement of the writ petitioner for the back wages is held to be justified and does not call for any interference. 36. Resultantly, both the appeals are disposed of by directing that the judgment and order dated 05.03.2021 stands modified to the following extent: (i) No interference is called for in so far as setting aside the order of dismissal from service of the petitioner is concerned. (ii) The action of the Disciplinary Authority in going ahead with the second charge during the pendency of the Itanagar PS Case No. 184/2011 is held to be illegal and interfered with. (iii) In so far as the second charge is concerned, the Disciplinary Authority is directed to keep the proceeding pending for a period of one year or till completion of the criminal case arising out of Itanagar PS Case No. 184/2011 whichever is earlier. (iv) The writ petitioner is, accordingly directed to be reinstated in service with a liberty to the Disciplinary Authority to proceed with the second charge only after the period stipulated above. (iv) The writ petitioner is, accordingly directed to be reinstated in service with a liberty to the Disciplinary Authority to proceed with the second charge only after the period stipulated above. (v) The conclusion of the learned Single Judge interfering with the findings of the first charge is left untouched as the criminal case which was on the same allegations has ended up in a Final Report. (vi) No interference is called for with regard to the observation that the reinstatement would be without any back wages. 37. No order as to cost.