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Judgment
[1] Heard Mr. D. K. Biswas, learned counsel appearing for the petitioner as well as Mr. K. N. Bhattacharjee, learned counsel appearing for the Tripura Jute Mills Limited [the respondents No.1 & 2]. Mr. P. Gautam, learned counsel appears for the respondent No.3.
[2] The petitioner has been working as the pin-boy under the respondent No.1 & 2 and it is admitted that he was entangled in a criminal case being East Agartala PS Case No.188/95 under Sections 448/ 326/34 of the IPC along with three others. The FIR was registered on 03.11.1995. It is also not in dispute that the petitioner was arrested and he was taken into custody and thereafter he was prosecuted on the charge of murder. It is also not in dispute that the trial court convicted him for committing offence punishable under Section 302 of the IPC. Initially the case was registered by the police under Section 448/326/34 of the IPC, but later on the person who was assaulted died and accordingly investigation had been carried out in respect of offence punishable under Section 302 of the IPC along with offences punishable under Sections 148/149/448/326 read with Section 34 of the IPC.
[3] The court of the Additional Session Judge, West Tripura, Agartala convicted the accused persons under Section 302 read with Section 34 of the IPC and sentenced them to suffer imprisonment for life and to pay fine as determined. The petitioner along with the other accused persons by preferring appeal under Section 374(2) of the Cr.PC, as it transpired from the records, challenged the said judgment of conviction. The records are very scanty. There is no dispute that this court allowed the appeal being Criminal Appeal No.05 of 2002 and returned the finding which reads herein under as:
"The vital infirmities of the prosecution witnesses as pointed out which are not curable at all creates doubt regarding the prosecution case and whenever doubt is created, the benefit of the doubt should be in favour of the accused."
[4] The state had preferred an appeal from the judgment of acquittal as passed by this court to the apex court but the apex court rejected such appeal. As the petitioner was convicted under Section 302 read with Section 34 of the IPC by the Additional Sessions Judge, his service was dismissed for being convicted and sentenced in tune with Rule 19 of the CCS (CCA) Rules, 1965. But the petitioner was acquitted by the appellate court, [this court] in Criminal Appeal No. 05 of 2002 by the judgment and order dated 29.08.2008. Even the appeal being Criminal Appeal 79 of 2011 filed by the state was however dismissed by the apex court by the order dated 26.05.2015.
[5] As it transpires from records, the petitioner was placed under suspension w.e.f. 10.01.1996 and the order of suspension was in force till his termination/dismissal for conviction vide memorandum No.F.TJ/PD(8)/Vol-V/377 dated 07.02.2002. It further transpires that after the petitioner was acquitted from the charge by the appellate court, he was reinstated in the service by virtue of the memorandum No. F.TJ/PD(08)/VOL-V/7113-25 dated 08.11.2008 on recalling the dismissal order but without any determination of his back wages. The petitioner served a demand notice on 21.07.2016 even through the representation dated 18.07.2016. By the said demand notice (Annexure-2 to the writ petition) the petitioner has asked to pay the back wages within 30(thirty) days from the date of receipt of the said notice for the period from 10.01.1996 till the date of reinstatement. But no positive action had whatsoever been taken by the respondents and thus, the petitioner has been persuaded by the circumstances to approach this court by filing this writ petition.
[6] The petitioner has urged this court, by means of this writ petition, to direct these respondents to pay the back wages from the date of termination of his service till the reinstatement on 08.11.2018. The respondents No. 1 & 2 by filing their reply has contended that since the petitioner is acquitted on the benefit of doubt, he cannot claim his pay and allowance for the period for which he had asked for i.e. from the date of his termination till his service was reinstated. The respondents, however, have referred a note of the Law Department where the respondents No. 1 & 2 was advised not to allow the petitioner back wages for the said period as asked for. But back wages for the period of suspension may be paid. In the writ petition, the petitioner has clearly admitted that by the memorandum dated 18.03.2017 back wages with regard to the period of suspension have been paid, but the respondents remained silent about the back wages for the period when he was not in service for his dismissal on conviction till his reinstatement by the respondents.
[7] The respondents have thus categorically asserted that the back wages for the period of dismissal did not warrant for the reason the petitioner did not get a clean acquittal from the charge. Hence, they have denied the claim of the petitioner to have the back wages for the said period. The respondents have also categorically stated in Para-11 that the petitioner was under suspension from 10.01.1996 to 03.07.2002 and for that period he has been given full wages. The petitioner has acquitted to that fact. After his conviction, the petitioner was terminated from his service by the order dated 04.07.2002 and he was reinstated by the order dated 08.11.2008. For this period, the petitioner has not been given the back wages for the reason that he was under order of conviction in a murder case. He was, however, later on acquitted by the High Court on 29.08.2008 giving benefit of doubt. As it was not a clean acquittal, the petitioner is not entitled to get the back wages.
[8] Mr. D. K. Biswas, learned counsel appearing for the petitioner had, in the conspectus of fact as narrated above, quite vehemently submitted that no disciplinary action against the petitioner was initiated to take away the back wages for being dismissed in terms of the order of conviction.
[9] Mr. Bhattacharjee, learned senior counsel appearing for the respondent No.2 has, however, admitted the position of facts that the there was no disciplinary proceeding against the petitioner on the charge of any misconduct. Hence, according to Mr. Biswas, learned counsel for the petitioner, the action of denying the back wages for the period under dismissal cannot sustain in law. Mr. Bhattacharjee, learned senior counsel has, however, restated the position taken by the respondent No. 1 & 2 that since the petitioner did not secure the clean acquittal from the charge, he cannot claim the payment of the back wages for the period when he was under umbrage of conviction for committing a murder.
[10] Having appreciated the submissions advanced by the counsel for the parties, this court is of the view that no financial benefit entitled to an employee or the worker cannot be taken without following the principles of natural justice. It is obvious that the petitioner's dismissal was in consequence of the said conviction and sentence. When this court [the Guahati High Court, the predecessor having jurisdiction] by the judgment acquitted the petitioner, the entire situation faced a paradigm shift. The appellate court had observed that the witnesses, as adduced by the prosecution, could not bring on record, such clinching evidence to hold that the petitioner was involved in the crime. This observation requires appreciation in the manner to find out whether the observation in respect of doubt can stand in the way of getting the back wages or not. No straight-jacket approach is desirable in the circumstances. The judgment of the appellate court has to be examined in its perspective. If there is no indication in the judgment that the petitioner had participated in the crime, but for some technical reasons he was not convicted and he was given the benefit of doubt that would definitely create a different situation. All those aspects are not supposed to be weighed by this court inasmuch as Fundamental Rules 54 provides that the authority, competent to order reinstatement, is to decide whether the back wages should be paid in full or otherwise. Sub-rule 6 of Rule 54 of the Fundamental Rules, further provides that the payment of allowances under sub-rule 2 or sub-rule 4 shall be subject to all other conditions under which such allowances are admissible. After due scrutiny of the appellate court judgment, it is declared that the petitioner is entitled to get the back wages but what would be the extent of the back wages shall be determined by the authority who is competent to order reinstatement within a period of two months from the date when the petitioner shall produce a copy of this order.
It is made absolutely clear that if the petitioner is aggrieved by any decision, he will be at liberty to take action at law.
In terms of the above, the writ petition stands allowed and disposed of.
There shall be no order as to costs.