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1972 DIGILAW 188 (PAT)

SHEO PRASAD v. STATE OF BIHAR

1972-09-21

N.L.UNTWALIA, S.AKBAR HUSAIN

body1972
JUDGMENT : Untwalia, J. In the year 1967 the petitioner was working as Book-Binder in the Secretariat Press at Guizarbagh. On 29.6.1967 an information was lodged at Alamganj Police Station to the effect that the petitioner as also one Lalchand Bhagat was caught while taking a way monocots metal ingots of the Secretariat Press. A criminal case under Sections 380 and 411 of the Penal Code was instituted against the petitioner. After investigation the police submitted charge sheet. During the pendency of the criminal case the petitioner was put under suspension by ORDER :dated 13.7.1967, copy of which is Annexure], to the writ application, with effect from 30.6.1967.The criminal trial remained pending for about three years. The petitioner was acquitted by the Munsif-Magistrate, 1st Class, Patna City, by his JUDGMENT : and ORDER :dated 2-3-1970. The relevant portion of the said JUDGMENT :, as quoted in Paragraph 9 of the petition, reads as follows: "Taking the entire fact, evidence and circumstances of the case into consideration, I hold that the prosecution has not been able to prove the charges under Sections 380 and 411 I. P.C. against the accused person beyond reasonable doubts and as such the accused persons deserve the benefit of doubt. In the result the accused persons are held not guilty of the offences under Sections 380 and 411 I.P.C. and they are accordingly acquitted under Section 512A (ii) Cr.P.C." 2. The petitioner soon after his acquittal in the criminal case wrote a letter to the Superintendent, Secretariat Press, Gulzarbagh, respondent 3, who is his appointing authority, for allowing h\m to join his duties with effect from the 26th March, 1970; a copy of this letter is Annexure 2. The Superintendent did not allow the petitioner to join his duties. On 29.4.1970 he made representation to the Secretary, Finance Department, through respondent 3 to allow to him to resume his duties. A copy of this representation is Annexure 3. He personally met the Deputy Secretary and the Secretary, Finance Department, and requested them to look into his grievance. The petitioner did not get any relief from any authority and- he filed another representation dated 26.11.1970, (Annexure 4). Still he did not get any relief, in the matter of his release from suspension. He, therefore, filed this writ application in this Court on 21.12.1970. 3. The petitioner did not get any relief from any authority and- he filed another representation dated 26.11.1970, (Annexure 4). Still he did not get any relief, in the matter of his release from suspension. He, therefore, filed this writ application in this Court on 21.12.1970. 3. During the pendency of this writ application an ORDER :was made on 10.2.1971, a copy of which is Annexure 5 to the supplementary affidavit releasing the petitioner from suspension. By ORDER :dated 6.5.1971 (Annexure 6) it has been decided that the petitioner will be deemed to have been released from his suspension from 2-3-1970 and will be deemed to have been reinstated in his post from that date. By the supplementary affidavit the petitioner attacks the ORDER :contained in Annexure 6 on the ground that if for the period of his suspension he is not paid his full allowance after deducting the subsistence allowance which had been paid to him then the effect of such ORDER :would be that the ORDER :of suspension was as a measure of punishment without complying with the principles of natural justice. It may be stated here that no departmental proceeding was ever started against the petitioner for the alleged act of his theft. 4. Learned counsel for the petitioner submitted that since the relief claimed in the writ application has been granted by the respondents during its pendency, the only point which remains for consideration now is whether the petitioner is entitled to fun allowance for the period of his suspension, i.e., 30.6.1967 to 2.3.1970. 5. The relevant rules on the point are Rules 96, 97, 99 and 100 engrafted in the Bihar Service Code. Rule 96 provides as to what amount by way of subsistence allowance a Government servant under suspension is to get. I am inclined to think that the payment of subsistence allowance is made when during the pendency of any case or proceeding a Government servant has been put under suspension, not as a measure of punishment but otherwise. Rule 96 provides as to what amount by way of subsistence allowance a Government servant under suspension is to get. I am inclined to think that the payment of subsistence allowance is made when during the pendency of any case or proceeding a Government servant has been put under suspension, not as a measure of punishment but otherwise. Rule 97 deals with the type of the consequential ORDER :which has to be made when a Government servant who has been dismissed, removed or suspended is reinstated, I am of the opinion that reading the word 'suspended' with the words 'dismissed" and 'removed' as also, in the context of the word 'reinstated', this reinstatement is after setting aside the ORDER :of suspension which has been passed as a measure of punishment. I shall now quote Rules 99 and 100 in full. “99. A servant of Government against whom proceedings have been taken either for his arrest for debt or on a criminal charge or who is detained under any law providing for preventive detention should be considered as under suspension for any periods during which he is detained in custody or is under going imprisonment, and not allowed, to draw any pay and allowances (other than any subsistence grant that may be granted in accordance with the principles laid down in Rule 96) or such periods, until the termination of the proceedings taken against him or until he is released from detention and allowed to rejoin his duties, as the case may be. An adjustment of his allowances for such periods therefore, be made according to the circumstances of the case, the full amount being only in the event of the Government Servant being acquitted of blame or (if the proceedings taken against him, were for his arrest for debt) of its being proved that the Government servant's liability arose from circumstances beyond his control or detention, being held by any competent authority to be unjustified. 100. 100. A Government servant against whom a criminal charge or a proceeding for arrest for debt is pending should also be placed under suspension by the issue of specific ORDER :s to this effect during periods when he is not actually detained in custody or imprisoned (e. g., while released on bail) if the charge made or proceedings taken against him is connected with his position as a Government servant or is likely to embarrass him in the discharge of his duties as such or involves moral turpitude. In regard to his pay and allowance, the provisions of Rule 99 shall apply." The two rules aforesaid are not very happily worded. The purport of Rule 100 is that when a criminal charge or a proceeding for arrest for debt is pending against a Government servant and if the charge made or proceeding taken against him is connected with his position as a Government servant or is likely to embarrass him in the discharge of his duties as such or involves moral turpitude then by issue of specific ORDER :he can be placed under suspension. But this period of suspension seems to be confined during periods when the Government servant is detained in custody or is undergoing imprisonment. On the other hand, there are three situations provided for in Rule 99: (i) wren a proceeding has been taken against a Government servant for his arrest for debt, (ii) when a proceeding has been taken against him on a criminal charge of (iii) when he is detained under any law providing for preventive detention. Then in eventualities provided in items (i) and (iii) the period of suspension would be the period a Government servant remains in custody or in detention but in case of item (ii) the period of suspension can last till the criminal proceeding lasts. In any of those eventualities the Government servant will get subsistence allowance in accordance with Rule 96. But then the latter part of Rule 99 provides that an adjustment of the allowances payable to the Government servant for the period of his suspension has got to be made according to the circumstances of the case. In any of those eventualities the Government servant will get subsistence allowance in accordance with Rule 96. But then the latter part of Rule 99 provides that an adjustment of the allowances payable to the Government servant for the period of his suspension has got to be made according to the circumstances of the case. The full amount can, rather will, be payable in the following events- (i) When a proceeding for a criminal charge was pending then if the Government servant is "acquitted of blame." (ii) If his arrest was for debt then on being proved that the Government servant's liability arose from circumstances beyond his control. (iii) If he was put in preventive detention then if it is held by a competent authority that the detention was unjustified. 6. In this particular case we are concerned with event No. (1). Here, the petitioner was acquitted in the criminal case, no doubt, but he did not get a clean acquittal; he was acquitted as benefit of doubt was extended to him by the trial court. In such a situation, it's not quite correct to say that the petitioner is entitled to the full amount because the expression “acquitted of blame" in the context must be interpreted to mean exonerated of the charge or the blame, in other words, a clear acquittal of the Government servant proceeded against in the criminal proceeding. Acquitting a Government servant by giving benefit of doubt, in my opinion, is not acquitting him of blame altogether. On the other hand, it may not be quite correct to say that in all cases of acquittal on benefit of doubt the Government servant is not to be paid any thing over and above the subsistence allowance already paid to him for the period of suspension My interpretation of the latter part of Rule 99 is that the Government servant is entitled to full amount if any of the three events happens, as stated and discussed by me above. But it is the discretion of the Government to make an adjustment of his allowance for the period of his suspension according co the circumstances of the case. But it is the discretion of the Government to make an adjustment of his allowance for the period of his suspension according co the circumstances of the case. It was also not correct, in that event, to say that because the petitioner was under suspension during the period the criminal case remained pending against him, he is not to be paid any thing over and above the subsistence allowance already paid to him. But that is a matter for the Government and their authorities to decide; no discretion in that regard can be exercised by the Court. In the circumstances, feeling unable to give any relief to the petitioner in this writ case, it has to be observed that the impugned ORDER :contained in Annexure 6 seems to have been passed under an impression that the petitioner cannot be paid any thing over and above the subsistence allowance which has already been paid to him for the period of suspension. The period of suspension has rightly been made to end on 2.3.1970 by Annexure "6". But it will be for the Government to consider the case of the petitioner sympathetically -again and to decide whether the petitioner deserves to be paid some more allowance over and above the subsistence allowance already paid to him for the period of suspension. Subject to this observation, this writ application fails and is dismissed but there will be no ORDER :as to cost. AKBAR HUSSAIN, J., I agree. Application dismissed.