REPORTABL E

        IN THE SUPREME COURT OF INDIA        CIVIL APPELLATE JURISDICTION

     CIVIL APPEAL NO.7721 OF 2009     (Arising out of SLP©No.10128 of 2008)

Jaipur Vidyut Vitran Nigam Ltd. & Ors. …Appellants

Versus

Nathu Ram …Respondent

J U D G M E N T   

TARUN CHATTERJEE, J.

1. Leave granted.

2. This appeal by way of a special leave petition at the instance  

of  Jaipur Vidyut  Vitran Nigam Ltd has been filed from a  

judgment and order dated 19th of  November, 2007 in DB  

Civil Special Appeal (Writ) No.1085 of 2007 arising out of a  

writ petition filed by Nathu Ram (the respondent herein) for  

payment of back wages from 29th of December, 1982 to 14th  

of December, 1997 after he was reinstated in service by the  

appellants.

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3. Before we proceed further,  we may say at this stage that  

while  this  Special  Leave  Petition  was  posted  for  hearing  

before  a  Bench  of  this  Court,  the  following  order  was  

passed:-

“Issue notice limited to the question of payment of  amount  which  is  to  be  paid  from  28.12.1982  to  15.12.1997.”   

4. The  facts  leading  to  the  filing  of  this  appeal  may  be  

narrated as follows:

Jaipur Vidyut Vitran Nigam Ltd. (hereinafter referred to  

as ‘the Corporation’)  has come into existence as a result  of  

dissolution  of  Rajasthan  State  Electricity  Board  to  form  

separate  companies.  The  Corporation  adopted  the  Rules,  

Regulations and directions issued by the predecessor of the  

Corporation  until  they  framed  their  own  rules.  A  Circular  

dated 3rd of  September,  1975,  which relates  to action to be  

taken  in  cases  where  employees  of  the  Rajasthan  State  

Electricity  Board  were  convicted  on  criminal  charges  by  a  

competent  court of  law, was issued by the  Rajasthan State  

Electricity Board.   

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5. Nathu Ram, the respondent, was appointed as a casual  

labour in the erstwhile Rajasthan State Electricity Board and  

was subsequently regularized on the post of Helper Grade II.  

On  19th of  September,  1979,  the  Respondent  was  allegedly  

caught accepting bribe by the Anti Corruption Bureau, as a  

result of which he was suspended from service by an order  

dated 30th of November, 1979. On 22nd of December, 1982, the  

learned Special Judge, Anti-Corruption cases, Jaipur held that  

the respondent was guilty of offences under Section 161 of The  

Indian Penal Code and under Section 5(1)(d) read with Section  

5(2) of Anti Corruption Act, 1947 and sentenced him to one  

year rigorous imprisonment with a fine of Rs.300/- for each of  

the said offence. An appeal was carried by the respondent to  

the  High  Court  of  Rajasthan  at  Jaipur  challenging  the  

aforesaid  conviction  passed  against  him.   In  view  of  the  

conviction passed against him, the Corporation terminated his  

service by an order dated 28th of December, 1982.  By an order  

dated 15th of December, 1997, the High Court acquitted the  

respondent  of  the  charges  leveled  against  him.  The  

Corporation, by virtue of this order of acquittal, reinstated the  

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respondent in service w.e.f.  15th of December, 1997, i.e. the  

date of the acquittal and posted him in the office of Assistant  

Engineer (Rural), Rajasthan State Electricity Board, Kunda Ki  

Dhani by an order dated 2nd of June, 1998.  The respondent  

was given full pay and allowances for the period of suspension,  

i.e. from 30th of November 1979 to 28th of December, 1982 and  

from 15th of December, 1997 till his joining the duty. From the  

above, it  is clear that there was a break of 15 years in his  

service.  On  3rd of  June,  1998,  the  Respondent  joined  the  

service  in  the  Corporation.   He,  however,  retired  on 31st of  

May, 2003. After retirement, he filed a writ petition being SB  

CWP No.  6440  of  2003  in  the  High  Court  of  Rajasthan  at  

Jaipur in which, inter alia, the following reliefs were claimed  

by the respondent :-  

1)amendment  of  the  order  dated  2nd of  June,  1998  

reinstating the respondent in service to the effect that the  

period from 29th of  December,  1982 to 14th of  December,  

1997 may also be treated as period spent on duty for all  

purposes with full pay and allowances.

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2) consequential  benefits  of  service  from  the  date  of  his  

suspension i.e. from 30th of November, 1979 to 2nd of June,  

1998, which was the date of his reinstatement, including  

pay  and  allowances,  annual  grade  increment,  bonus,  

liveries along with interest @ 12 % per annum from 2nd of  

June,  1998  to  the  date  of  payment,  fixation  benefits  in  

revised pay scales for the years 1981, 1986, 1989 and 1996,  

selection scales as per Order dated 25th of January, 1992,  

arrears  of  pay  and  allowance  with  interest  @  12  %  per  

annum from 2nd of June, 1998 to the date of payment.  

3)Pensionary benefits including pension, gratuity, and leave  

encashment after fixing his pay in revised pay scales and  

selection scale along with interest @ 12 % per annum from  

1st of June, 2003 to the date of payment.

6. After the Corporation appeared and contested the  

writ application by filing an affidavit to the writ petition, a  

learned Single Judge of the High Court of Rajasthan passed  

a  final  order  on  the  writ  application  directing  the  

Corporation to pay back wages from 29th of December, 1982  

to 14th of December, 1997 when he was acquitted.  While  

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doing  so,  the  learned  Single  Judge  directed  that  the  

respondent  shall  be  paid  salaries  and  allowances  to  the  

extent  of  what  would  have  been payable  to  him had  he  

remained under suspension from the date of termination to  

the date of acquittal. According to the learned Single Judge,  

this  period ought to have been treated as spent  on duty  

without any break.  The Corporation was also directed to fix  

his  pay  in  the  revised  Pay  Scales,  as  claimed,  and  to  

consider his case for selection scale. Thus, the writ petition  

of the respondent was partly allowed. While directing so, the  

learned  Single  Judge  had  relied  on  a  Circular  of  the  

erstwhile Rajasthan State Electricity Board issued on 3rd of  

September, 1975 as noted herein earlier.  From the order of  

the learned Single Judge, it also appears that the learned  

Judge had relied on para (iii)  of  the circular  dated 3rd of  

September, 1975.  As regards regularization of the period  

from the date of dismissal i.e. 28th of December, 1982 to the  

date  of  reinstatement  i.e.  14th of  December,  1997,  it  was  

held  that  the  respondent  was entitled  to  the  payment  of  

subsistence allowance in terms of the Circular dated 3rd of  

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September,  1975,  which  in  fact,  clearly  states  that  the  

period between the date of dismissal etc. and the date on  

which  the  employee  resumes  duty  should  be  dealt  with  

under Regulation 41 of the Employees Services Regulations  

1964 (in short the ‘Regulations’).   

7. Feeling  aggrieved  by  the  order  of  the  learned  

Single Judge, an appeal was carried to the Division Bench  

of the High Court, which affirmed the order of the learned  

Single  Judge  and accordingly,  this  Special  Leave  Petition  

has been filed by the Corporation against the order of the  

Division  Bench,  which  on  grant  of  leave,  was  heard  in  

presence of the learned counsel for the parties.   

8. Before  us,  the  learned  counsel  appearing  on  

behalf  of  the  Corporation  at  the  first  instance  submitted  

that since a Writ petition was filed by the respondent after a  

long  delay  and  even  after  joining  the  service,  without  

explaining  why  such  delay  was  caused,  the  High  Court  

could not have entertained the writ petition.  We are not in  

a position to accept this submission of the learned counsel  

for the Corporation on the question of delay only because  

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the question of delay in filing the writ petition was not even  

taken by the Corporation either before the learned Single  

Judge or even before the Division Bench of the High Court.  

This  question  was  only  raised  for  the  first  time  in  the  

Special  Leave Petition before this Court.   The question of  

delay not having been raised before the High Court, we are  

unable to entertain this question at this stage.  Accordingly,  

this submission of the learned counsel for the Corporation  

stands rejected.    

9. Secondly,  it  was  contended  that  since  the  

respondent had not worked during the period of dismissal,  

he  was  not  entitled  to  any  remuneration  for  the  period  

mentioned herein earlier.   In support  of  this submission,  

the  learned  counsel  for  the  Corporation  had  drawn  our  

attention  to  two  decisions  of  this  Court  in  the  case  of  

Ranchhodji  Chaturji  Thakore  vs.  Superintendent  

Engineer,  Gujarat  Electricity  Board,  Himmatnagar,  

Gujarat and another [1996 (11) SCC 603] and Union of  

India & Ors. Vs. Jaipal Singh [2004 (1) SCC 121]. Before  

we deal with the aforesaid two decisions as relied on by the  

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learned counsel for the Corporation, we may consider the  

Circular  dated  3rd of  September,  1975,  issued  by  the  

erstwhile  Rajasthan  State  Electricity  Board,  on  which  

strong reliance was placed by the courts below, needs to be  

looked  into.  It  cannot  be  disputed  that  the  said  circular  

itself  was  binding  on  the  Corporation.  Therefore,  at  this  

stage,  we  may  reproduce  the  said  Circular  dated  3rd of  

September,  1975  as  well  as  Regulation  41  of  the  

Regulations which are as follows :    

“Sub: Action to be taken in cases where Board's   employees are convicted on a criminal charge by a  competent court of law. The following procedure should be adopted  in a  case  of  conviction  of  a  Board's  employee  by  a  Court of Law on a criminal charge:

(i)...

(ii)...

(iii)  If  an  appeal/revision  against  the  conviction   succeeds and Board's employee is acquitted, the  order  of  dismissal,  removal  or  compulsory  retirement based on his conviction which no longer  stands, becomes liable to be set aside. A copy of   the  judgment  of  the  appellate  Court  should  be  immediately  procured  and  got  examined  with  a  view to decide whether despite the acquittal,  the   facts and circumstances of the case are such as to  call  for  the  departmental  enquiry  against  the   

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Board's employee on the basis of the allegation on  which he was previously convicted.

If it is decided that a departmental enquiry should  be held, formal orders should be made:

(1) setting aside the order or dismissal, removal or  compulsory retirement, and  

(2) ordering such a departmental enquiry.

Such  an  order  should  also  state  that  under  Regulation No. 9 of the RSEB (CC & A) Regulations  1962, the Board's employee is deemed to be under  suspension  with  effect  from  the  date  of  the   dismissa1/remova1/compulsory  retirement  (A  Standard Form-II is enclosed).

In  case where neither  of  the aforesaid course is  allowed,  a formal order  should be made setting  aside  the  previous  orders  of  dismissal,  removal   and compulsory retirement and reinstating him in  service (A Standard Form No. III for such an order  is enclosed).

The period between the date of dismissal etc. and  the  date  on  which  he  resumes  duty  should  be  dealt  with  under  Regulation  No.  41  of  the   Rajasthan  State  Electricity  Board  Employees  Service Regulations and in doing so he should be  deemed to be entitled to full pay and allowances  for the period from the date of his acquittal to the   date  of  his  reinstatement,  such  period  being  counted  for  duty  for  all  purposes  and  for  the  period from the  date  of  dismissal  to  the  date  of   acquittal,  he  should  not  be  allowed  pay  and  allowances  less  than  what  would  have  been  admissible  to  him  had  be  remained  under  suspension.

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While  issuing  orders  for  dismissal,  it  should  be  borne  in  mind  that  the  order  is  issued  by  the  authority  competent  to  inflict  major  penalty   against that person.”

Regulation 41 :-     

“Re-instatement  after  suspension,  removal  or  dismissal:

When  an  employee  who  has  been  dismissed,   removed or suspended is reinstated, the authority   competent  to  order  the  reinstatement  shall   consider and make a specified order :

1. (a) Regarding the pay and allowance to be paid  to the employee for the period of his absence from  duty, and

(b) Whether or not the said period shall be treated   as a period spent on duty.

(c)  Whether  or  not  the  suspension,  removal  or  dismissal was wholly unjustifiable.

2. Where such competent authority holds that the   employee has been fully exonerated or in the case   of suspension that it was wholly unjustified, the   employee shall be given the full pay and dearness  allowance to which he would have been entitled  had  he  not  been  dismissed,  removed  or  suspended, as the case may be."

10. On a close examination of the Circular dated 3rd of  

September,  1975  and  Regulation  41(2)  of  the  

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Regulations, as noted hereinabove, it would be clear  

that  the  Circular  of  the  Corporation  specifically  

provides  that  the  period  between  the  date  of  

dismissal  and  the  date  on  which  the  respondent  

resumed  his  duty  should  be  dealt  with  under  

Regulation  41(2)  of  the  said  Regulations.   At  the  

same  time,  Regulation  41  also  clearly  says  that  

when  an  employee  who  has  been  dismissed  and  

thereafter  reinstated,  the  authority  competent  to  

make the order of reinstatement shall consider the  

pay and allowances to be paid to the employee for  

the period of his absence from duty.  This Circular  

along with Regulation 41, therefore, makes it clear  

that  the  authority  is  bound  to  take  into  

consideration  regarding  pay  and allowances  to  be  

paid to the employee for the period of his absence  

from duty.   The Circular also clearly says that in  

doing  so,  the  employee  should  be  deemed  to  be  

entitled  to  full  pay  and allowances  for  the  period  

from the  date  of  his  acquittal  to  the  date  of  his  

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reinstatement.  From  the  above  discussions,  it  is  

clear  that  the  case  of  the  respondent  was  fully  

covered by the Circular of the erstwhile Board dated  

3rd of September, 1975. The period in question, as  

noted  herein  earlier,  for  payment  of  allowance  is  

from the  date  of  dismissal  i.e.  28.12.1982 to  the  

date  of  acquittal  i.e.  15.12.1997.  As  noted  herein  

earlier,  last paragraph of the Circular dated 3rd of  

September,  1975  which  is  important  for  our  

purpose may be reproduced as follows :

“The period between the date of dismissal etc.   and the date on which he resumes duty should  be  dealt  with  under  Regulation  No.41  of  Rajasthan  State  Electricity  Board  Employee  Service Regulation and in doing so he should be  deemed  to  be  entitled  to  full  pay  and  allowances for the period from the date of his  acquittal  to the date of his reinstatement, such  period  being counted  for  duty  for all  purpose  and for the period from the date of dismissal to  the date of acquittal  he should not be allowed  pay and allowances less than what have been  admissible  to  him  had  he  remained  under  suspension.”

It is not in dispute that the appellant-Corporation have  

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themselves given full pay to the respondent from the date of  

suspension  i.e.  30th of  November,  1979  to  the  date  of  

dismissal i.e. 28th of December, 1982 and from the date of  

acquittal  i.e.  15th of  December,  1997  to  the  date  of  

reinstatement i.e. 3rd of June, 1998. Such being the state of  

affairs, it is not acceptable that there was any reason for the  

Corporation not to give the suspension allowances for the  

period of termination i.e. 28th of December, 1982 to the date  

of  acquittal  i.e.  15th of  December,  1997  in  terms  of  the  

circular  dated  3rd of  September,  1975.  This  circular  also  

says that the period from the date of dismissal to the date of  

acquittal, the employee should not be allowed to pay and  

allowances less than what would have been admissible to  

him had he remained under suspension.  Therefore, from a  

reading  of  the  Circular,  it  would  be  evident  that  the  

respondent may be paid the pay and allowances admissible  

to him had he remained under suspension.  This was the  

view expressed by the learned Single Judge as well as the  

Division Bench of the High Court.  Further, as noted herein  

earlier, the learned counsel for the Corporation had drawn  

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our attention to two decisions of this Court. So far as the  

decision in Ranchhodji’s case (supra) is concerned, we are  

of the view that the principle laid down in the said decision  

is  not  applicable  to  the  facts  and  circumstances  of  the  

present  case.   The  facts  of  the  present  case  are  quite  

different from that of the said decision.  Apart from that, in  

that  decision,  a disciplinary proceeding was initiated  and  

subsequently,  it  was  decided that  back  wages  should  be  

paid if the employer had taken action by way of disciplinary  

proceeding and the action was found to be unsustainable in  

law.   So  far  as  the  present  case  is  concerned,  no  

disciplinary proceeding was initiated.  Only the termination  

order  was  passed  by  the  Corporation  as  a  result  of  his  

conviction in a criminal case.  Accordingly, this decision in  

Ranchhodji’s case (supra) is of no help to the Corporation.  

11. So  far  as  the  other  decision  on  which  strong  

reliance was also placed by the learned counsel for  

the  Corporation,  namely,  Union of  India & Ors.  

Vs. Jaipal Singh [2004 (1) SCC 121] is concerned,  

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similarly this decision of this Court, in our view, is  

also  equally  not  applicable  in  the  facts  and  

circumstances of the present case. It is true that in  

that decision this Court has held that an employee  

is not entitled to pay back wages for the period of  

absence  i.e.  from  the  date  of  dismissal  to  

reinstatement,  which  would  otherwise  be  counted  

towards his service, but in view of the circular dated  

3rd of  September,  1975  particularly  the  last  

paragraph  of  the  said  circular  as  noted  herein  

earlier, it cannot now be said that the respondent is  

not entitled to pay back wages as directed by the  

Division  Bench  of  the  High  Court  in  the  writ  

petition.  

12. In view of  our discussions made hereinabove and  

considering  the  Circular  dated  3rd of  September,  

1975, we do not find any merit in this appeal.  No  

other point was urged by the learned counsel for the  

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Corporation before us.  Accordingly, this appeal fails  

and dismissed.  There will be no order as to costs.   

……………………..J. [Tarun Chatterjee]

New Delhi; ……………………….J. November 23, 2009 [R.M.Lodha]         

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