Mohammed Easa Sahib v. D. I. G. of Police — 1990 DIGILAW 351 (KER)

Judgment :- The petitioner was working as a Finger Print Expert in the Police Department at Kottayam when he was arrested and remanded to the Sub Jail, Pathanamthitta on 18-8-1980 as an accused in Crime No. 94/80 of the Aranmula Police Station. The incident in respect of which he was arrested and detained took place on 15-8-1980, when, it is stated, eleven persons, including the petitioner, formed themselves into an unlawful assembly in his house and abused one Abdullah, Secretary of the Kalbor Jama Ath, and pelted stones at his house on account of some differences of opinion arising in the Jama ath. This was met with counter action by the other faction, namely the sympathizers of Abdullah. A clash resulted in the course of which one person died. A crime case was registered wherein the petitioner figured as the eleventh accused. lle was arrested on 18-8-1980 and remanded to the Sub Jail by the Judicial Magistrate of the Second Class, Pathanamthitta on 19-8-1980. 2. On receipt of information about the arrest, the first respondent, Deputy Inspector General of Police, specifically passed an order Ext.P1 on 21-8-1980 placing the petitioner under suspension with effect from 18-8-1980, though Rule 10(3) of the Kerala Civil Services (Classification, Control and appeal) Rules, 1960 and Rule 57 of Part I of the Kerala Service Rules (K.S.R.) deemed such an officer in custody for more than forty eight hours to have been suspended from the date of detention. The investigation in the case was completed and the accused were charge-sheeted on 24-3-1981. The petitioner made a request that he may be reinstated on sympathetic grounds in view of the hardship, and the difficulties faced by him, to maintain his family. The petitioner was thereupon reinstated in service by the proceedings Ext.P2 of the Deputy Inspector General, dated 25-8-1981, without prejudice to the disciplinary proceedings pending against him. 3. The case against the petitioner and others was committed to Sessions. The Sessions Judge, Quilon acquitted all the accused by his judgment dated 4th August 1982, an extract of which is produced as Ext.R1. The learned Sessions Judge observed: "What appears to have taken place in the instant case is that there was a fight between two factions in the course of which they freely made use of weapons and both sides suffered injuries. But the injury of one turned out to be fatal and he died. The learned Sessions Judge observed: "What appears to have taken place in the instant case is that there was a fight between two factions in the course of which they freely made use of weapons and both sides suffered injuries. But the injury of one turned out to be fatal and he died. llowever, it is not clear as to which of the factions was the aggressor or the victim. Under such circumstances, it is extremely difficult to say that the accused are the persons responsible for the crime and at any rate, I feel, they are entitled to benefit of doubt. Considering all these aspects, I find that the prosecution has failed to bring home the guilt of the accused for offences punishable under Ss.143, 147, 148, 447, 323, 324, 302 read with section 149 I.P.C., beyond reasonable doubt. In that view of the matter I hold that the accused are entitled to an order of acquittal". 4. No disciplinary proceedings were initiated against the petitioner while the criminal case was pending, or thereafter. After the acquittal, the petitioner made request to the first respondent on 30-12-1982 to treat the period of his suspension from 18-8-1980 to 25-8-1981 as spent on duty for all purposes, and to pay him the arrears of salary for the period. The first respondent however, issued notice Ext.P4, dated 11-8-1983, to the petitioner, to show cause why the period of suspension may not be treated as period spent on duty for the limited purpose of pension and as to why the pay and allowances payable to the petitioner during that period should not be restricted to the subsistence allowance already drawn. The petitioner showed cause by his reply Ext.P6 in which he contended that he had been acquitted of blame by the Sessions Court and therefore under Rule 57 of Part I of the Kerala Service Rules, he was entitled to be paid the full pay and allowances during the period of suspension. lle also pointed out the case of one P.B. Habeeb Mohammed, a Lower Division Clerk in the office of the Inspecting Assistant Commissioner of Agricultural Income Tax and Sales Tax, Kattappana, who was the first accused in the Sessions Case, whose period of suspension pending the Sessions Case was regularized as period spent on duty. lle also pointed out the case of one P.B. Habeeb Mohammed, a Lower Division Clerk in the office of the Inspecting Assistant Commissioner of Agricultural Income Tax and Sales Tax, Kattappana, who was the first accused in the Sessions Case, whose period of suspension pending the Sessions Case was regularized as period spent on duty. A copy of the order in Habeeb Mohammed's case passed by the Inspecting Assistant Commissioner of Agricultural Income Tax and Sales Tax, Kattappana is Ext.P5 herein. 5. The first respondent did not accept the petitioner's case. lle did not feel bound to follow the precedent in Habeeb Mohammed's case. The first respondent held that the petitioner had not been "honorably acquitted" as the Sessions Court held only that the accused were entitled to the benefit of doubt. Departmental action had not been initiated only for technical reasons. The petitioner's explanation was therefore rejected and the provisional decision made in the notice Ext.P4 to show cause was confirmed. 6. Against this order Ext.P7, the petitioner unsuccessfully appealed to the Director General of Police, the second respondent, and to Government, the third respondent. Copies of the orders of respondents 2 and 3 are Exts.P8 and P9. They agreed with the view taken by the first respondent and refused to accede to the petitioner's prayer to treat his period of suspension as period spent on duty. The petitioner challenges the orders Exts. P7, P8 and P9. 7. Petitioner's contention, as stated earlier, is that he has been "acquitted of blame" and therefore rule 57 of Part I of the Kerala Service Rules applied to his case. lle was therefore entitled to be paid the full amount of pay and allowances during the period of suspension. I shall extract rule 57 for purpose of reference: "57. An officer who is detained in custody, whether on a criminal charge, or otherwise, for a period exceeding forty-eight hours, or is undergoing imprisonment, shall be deemed to be under suspension with effect from the date of commencement of the detention or imprisonment, as the case may be, and shall not be allowed to draw any pay and allowances during such period of suspension other than any subsistence allowance and other allowances that may be granted in accordance with rule 55 until he is reinstated in service. An adjustment of his pay and allowances for such periods should thereafter be made according to the circumstances of the case, the full amount being given only in the event of the officer being acquitted of blame or (if the proceedings taken against him were for his arrest for debt) of its being provided that the officer's liability arose from circumstances beyond his control". 8. Rules 55 to 58 of Part I of the K.S.R. contain detailed provisions regarding payment of salary and allowances to an officer when he was out of service due to suspension, dismissal, removal or compulsory retirement. Rule 55 states that an officer under suspension or deemed to have been placed under suspension is entitled to the "payments" mentioned therein, namely subsistence allowance and others. Rule 56 deals with the case of an officer who had been dismissed, removed or compulsorily retired, and reinstated later, or who would have been reinstated but for super annuation meanwhile, as a result of appeal or review. Rule 56A provides for the cases where the dismissal, removal or compulsory retirement is set aside by a court of law and the officer is reinstated, without holding any further enquiry. Rule 56B deals with cases of officers who have been reinstated, after suspension, or who would have been reinstated, but for retirement on superannuating while under suspension or before the conclusion of the disciplinary proceedings. Rule 57 deals with the case where an officer is detained in custody whether on a criminal charge or otherwise, for a period exceeding 48 hours. Rule 58 provides for the case of an officer against whom a criminal charge, or proceeding for arrest for debt, is pending in a court of law. Rules 56,56A and 58 are not relevant to this case, nor are they relied on by counsel for the petitioner. rules 56 and 56A are concerned with cases of reinstatement, after setting aside the order of dismissal, removal or compulsory retirement. They do not relate to cases of suspension on being detained in custody as in the case of the petitioner, which is specifically covered by Rule 57. Rule 58 deals with cases where a criminal charge is pending in a court, without detention. They do not relate to cases of suspension on being detained in custody as in the case of the petitioner, which is specifically covered by Rule 57. Rule 58 deals with cases where a criminal charge is pending in a court, without detention. It has been held by this court in Ramachandran Filial v. Kerala State Electricity Board, 1980 KLT 608, that in the case of a person who has been-suspended consequent on his arrest, and subsequently reinstated, it is rule 57, and not rule 56 that applies. That decision did not however deal with rule 56b. Both Rules 56B and 57 deal with cases of suspension and reinstatement, but Rule 57 specifically deals with cases of suspension consequent on detention in custody. I shall therefore deal with this case as one falling under Rule 57, which is the one basically, relied on by the petitioner and on which both sides addressed Arguments. Respondents have also dealt with the matter only as one falling under Rule 57 as is evident from Exts.P6 and P7. 9. I have already extracted this rule. It provides for adjustment of the pay and allowances during the period of suspension, to be made according to the circumstances of the case, the full amount being given only in the event of the officer being acquitted of blame. The question is whether the petitioner in this case has been acquitted of blame and whether therefore, his case could be considered for payment of the full pay and allowances during the period of suspension. 10. The normal rule in the case of suspension pending criminal case, and subsequent reinstatement on acquittal, is that the officer is entitled to payment of the full salary and allowances, which he would have drawn had he not been suspended, for period of suspension - vide Union of India v. Jayaram, AIR 1960 Madras 325, where Rajamannar, C.J. speaking for the Bench, observed that once the officer is acquitted, in the absence of any further disciplinary proceedings launched by Government, he will be entitled to continue in employment and to be reinstated. lle is also entitled to the full salary for the period of suspension, which he would have drawn if he had not been suspended. lle is also entitled to the full salary for the period of suspension, which he would have drawn if he had not been suspended. In the absence of any rule depriving him of this right or conferring on the authorities the right to grant only a portion of the salary and allowances, the officer was entitled to be paid the arrears of salary for the period of suspension. Their Lordships held that the rule relied on by Government to deny a portion of the salary and allowances was inapplicable on the facts of that case, and accordingly, directed Government to pay the officer concerned the arrears of salary which would have been due to him if he had not been suspended from service, (See also Ramsinhji Viraji Rafhod v. State of Gujarat, 1971 (2) S.L.R.743). 11. In Brahma Chandra Gupta v. Union of India, AIR 1984 SC 380, the Supreme Court was dealing with the case of a government servant who was convicted by the trial court but acquitted on appeal. Pending the proceedings, he had been suspended from service. lle was reinstated after the acquittal in appeal. lle was however denied 1/4th of the salary due for the suspension period, and paid only the balance 1/4th, in the view that the officer concerned could not be stated to have been fully exonerated, and therefore, he could be given only 3/4 of the salary, after withholding 1/4th. The Supreme Court noted that the officer had not been hauled up for any departmental enquiry. Though he was prosecuted, he was ultimately acquitted, and on such acquittal, he was reinstated, and paid the full salary for the period commencing from his acquittal. Even for the period of suspension, the concerned authority had not held that the suspension was wholly justified, because he had ordered 1/4th of the salary to be paid. In the circumstances, the court held that the officer should be paid the entire amount of salary during the period of suspension without withholding any portion thereof. 12. This decision also reiterates the principle of law that an employee, on reinstatement on acquittal, is entitled to be paid the full salary during the period of suspension, in the absence of any specific rule enabling the whole or any portion thereof to be withheld. Similar rule exists in the Kerala Service Rules in the shape of Rule 57. 12. This decision also reiterates the principle of law that an employee, on reinstatement on acquittal, is entitled to be paid the full salary during the period of suspension, in the absence of any specific rule enabling the whole or any portion thereof to be withheld. Similar rule exists in the Kerala Service Rules in the shape of Rule 57. The petitioner however contends that Rule 57 entitles him to be paid the full pay and allowances during the period of suspension as, according to him, he has been "acquitted of blame". lle relies on Ramachandran Filial (1980 KLT 608) in support. 13. The expression "acquitted of blame" was the subject matter of consideration by a Division Bench of the lligh Court of Rajasthan in General Manager v. Swaroopraj, AIR 1959 Rajasthan 55. An assistant Station Master who was suspended on charges of corruption was acquitted by the Special Judge and thereafter reinstated in service. lle claimed payment of the full salary and allowances relying on Rule 2043 S. Ill paragraph 1 of the Railway Establishment Code, which is identical with the latter part of Rule 57. Wanchoo, C.J. (as he then was) speaking for the Bench observed: "The words acquitted of blame cannot mean the same thing as the word acquitted. The officer who has to make the adjustment under this paragraph has to satisfy himself that the employee has been acquitted of blame and not merely acquitted by the court. XXX XXX XXX Three contingencies can always arise in such cases of acquittal by Courts. In the first place, the Court may say that it is acquitting the man honorably having found that the case against him is false. In such a case the man is acquitted of blame by the Court itself and it is the duty of the officer making adjustment to allow him the full amount of his salary and allowances. Secondly, there may be a case where the Court says that it is only giving the benefit of the doubt to the accused. In such a case when the officer, who has to make adjustment, comes to the conclusion that the man has not been acquitted of blame his view can admit of no doubt. Secondly, there may be a case where the Court says that it is only giving the benefit of the doubt to the accused. In such a case when the officer, who has to make adjustment, comes to the conclusion that the man has not been acquitted of blame his view can admit of no doubt. There may, however be a third case in which the Court may neither say that the case against him is false, nor does it say that the man has been acquitted on the ground of benefit of the doubt. In such a case again it is for the officer making the adjustment to read the judgment and come to his own conclusion whether it is a case of honorable acquittal or acquittal of blame or not. If he comes to the conclusion that it is a case of acquittal of blame, he must allow the full salary and allowances. If on the other hand, he comes to the conclusion that it is not a case of acquittal of blame, he has discretion to pass such orders as seem to him to be just in the circumstances of the case". It is therefore the opinion of the court that a mere acquittal giving the benefit of doubt is not tantamount to an "acquittal of blame". It is left to the concerned authority to decide whether or not the government servant has been acquitted of blame and if he comes to the conclusion that he has not been so acquitted, that view cannot be open to review. 14. I must at once take note of a decision of the Division Bench of the lligh Court of Bombay in Dattatraya Vasudeo Kulkarni v. Director of Agriculture, 1984 (3) S.L.R.83, where that court dealt with the same expression "acquitted of blame" occurring in Rule 152 of the Bombay Civil Services Rules. Actually it is not the decision in Dattatraya's case that really deals with the question, but the one dated November 27, 1974 in Madhukar Baburaoji Dhote v. State of Maharashtra, Special Civil Application No. 209 of 1968, decided by Tulzapurkar, J. (as he then was) and Shimpi, J., which is referred to, extracted and followed therein. Actually it is not the decision in Dattatraya's case that really deals with the question, but the one dated November 27, 1974 in Madhukar Baburaoji Dhote v. State of Maharashtra, Special Civil Application No. 209 of 1968, decided by Tulzapurkar, J. (as he then was) and Shimpi, J., which is referred to, extracted and followed therein. Dhote's case dealt with Rule 156(a) of the Bombay Civil Services Rules, which corresponds broadly to Rule 57 of Part I of the K.S.R. After referring to the decisions in Union of India v. Jayaram, AIR 1960 Madras 325, Viraji v. State of Gujarat, 1971 (2) S.L.R.743 and Jagmohanlal v. State of Punjab, AIR 1967 Punjab 422, it was held in Dhote's case that the concept of "honorable acquittal" or "full exoneration" may be inappropriate qua the result of a criminal prosecution. The court referred to Rule 156(a) and stated: "Under this provision, therefore, what the State Government had to consider was whether the petitioner had been "acquitted of blame" and considerations whether there had been a full exoneration or not would be thoroughly irrelevant. Even when he was acquitted on the basis of benefit of doubt being given to the petitioner all the same he was acquitted of the charges leveled against him and he must be held to have been 'acquitted of the blame'. In other words, on a proper interpretation of R.156(a) we are clearly of the view that concepts of 'honorable acquittal or full exoneration' are irrelevant and immaterial". Dettatrava only followed Dhote. 15. In Balappachar v. State of Mysore, 1975 (1) SLR 809 a Division Bench of the Karnataka lligh Court (Chandrasekhar and Noronha, JJ.) equated the expression "acquitted of the blame" with "acquitted of the offence" and stated: "Once he is acquitted, whether such acquittal is on account of lack of evidence, or on account of any defect in the procedure in the trial, or on account of the Court extending the benefit of doubt, so long as such acquittal stands, the presumption of innocence of the accused, should be given the full effect and he must also be regarded as being acquitted of the blame flowing from any of the acts or omissions which formed the subject matter of the charge". The court was actually following an earlier Bench decision of Narayana Pai, C.J. and Range Gowda, J. in W.P. No. 2115 of 1967. 16. The court was actually following an earlier Bench decision of Narayana Pai, C.J. and Range Gowda, J. in W.P. No. 2115 of 1967. 16. There is thus a sharp cleavage of opinion between the Rajasthan, Bombay and Karnataka lligh Courts. While the former holds that an acquittal on the ground of benefit of doubt leaves the matter to the concerned authority to decide whether there was an acquittal of blame, the latter two courts take the view that an acquittal on the basis of benefit of doubt is an acquittal of blame. llaving given my anxious consideration to the matter, I am inclined to agree with the lligh Court of Rajasthan. 17. It is true that the expressions "honorably acquitted" and "fully exonerated" are more appropriate to disciplinary proceedings. The expression with which we are concerned is "acquitted of blame" and not merely "acquitted". The expression "acquitted of blame" must, in the circumstances, mean something more than a mere acquittal. It must be such an acquittal that leaves no doubt or trace about the guilt or culpability of the accused officer. Evidently awhat is intended is absence of any element of blame attaching to the officer, despite the prosecution. Unless this be the intent, the words "of blame" become meaningless. 18. If the same meaning was intended to be conveyed by both the expressions "acquitted of blame" and "acquitted" the use of the phraseology "acquitted of blame" is inexplicable, especially when such an expression is foreign to the Code of Criminal Procedure, which only uses the word "acquitted" all along. 19. One cannot impute tautology to the rule makers. The presumption is that the legislature (in this case, the rule making authority) does nothing in vain. The court must therefore endeavor to give significance to every word of an enactment. If a word or phrase appears in an enactment or rule, it is presumed that it was put there for a purpose and must not be disregarded (Statutory Construction (1984) by Francis Bennion - page 375). 20. It must be noted here that the scheme of Rules 56,56A and 56B is not to grant full pay and allowances unless the officer was fully exonerated of the charge or unless the suspension was wholly unjustified. 20. It must be noted here that the scheme of Rules 56,56A and 56B is not to grant full pay and allowances unless the officer was fully exonerated of the charge or unless the suspension was wholly unjustified. In all other cases, the officer is paid only such amount (not being the whole) of the pay and allowances as may be determined by the competent authority in his discretion. R.57 follows in the wake of these rules and must bear a construction, which is in accord with the scheme of these rules. R.57 automatically deems an officer to be under suspension when he is detained in custody for over forty-eight hours. I do not think it was intended to place such an officer, in a higher pedestal than those dealt with under the earlier rules. That apparently is the reason why something more than a bare acquittal is insisted on, namely an acquittal of blame. There are cases where, though morally convinced of the guilt, the criminal court is unable to convict the accused for want of evidence beyond reasonable doubt or for some procedural irregularity. To attract rule 57, the verdict which resulted in the acquittal should have been of such a nature as to exculpate the officer of all blame in relation to the charge. Cases can be conceived, where a person is detained, based on wrong identity; or where a case has been wrongly foisted on him; or where he is acquitted on establishing a clean alibi; and others. In the circumstances, lam at one with the Rajasthan lligh Court that in cases of acquittal on the basis of benefit of doubt and the like, it is for the authority to consider whether the officer has been acquitted of blame and appropriately to make adjustment of the pay and allowances for the period of suspension. I respectfully express my dissent from the contrary view taken by the Bombay and Karnataka lligh Courts in the decisions referred to. 21. The decision in Ramachandra Filial (1980 KLT 608) does not deal with this matter and does not therefore advance the case of the petitioner. 22. A Division Bench of this court (Kochu Thommen, J. as he then was and Radhak rishna Menon, J.) had occasion to deal with a similar matter in O.P. No. 4137 of 1978. 21. The decision in Ramachandra Filial (1980 KLT 608) does not deal with this matter and does not therefore advance the case of the petitioner. 22. A Division Bench of this court (Kochu Thommen, J. as he then was and Radhak rishna Menon, J.) had occasion to deal with a similar matter in O.P. No. 4137 of 1978. The officer was involved in a criminal case, in which it was found difficult to establish as to which of the two parties was the aggressor. The evidence, though insufficient to establish exercise of the right of private defense, cast a reasonable doubt over the truth of the prosecution case. The officer was acquitted accordingly. The Division Bench nevertheless held that the officer was not entitled to full pay and allowances during the period he was under suspension. 23. The respondents have found that the petitioner has not been acquitted of blame and therefore he was not entitled to be paid the full pay and allowances for the period of suspension. This conclusion is justified on the facts of the case. The Sessions Judge has observed in Ext.R1 that there was a faction fight in which weapons were freely used and both sides suffered injuries. It was not clear as to which of the factions was the aggressor or the victim. The Sessions Judge was not able to find as to who was the culprit in the circumstances. It was therefore that he gave the benefit of doubt to the accused and Acquitted all those responsible for the fracas. It is not as if the petitioner was exculpated of all guilt. On the other hand, the judge" was unable to pinpoint the offence on any one in particular, when it was evident that there was a free for all with pelting of stones and use of weapons. It could not in the circumstances be contended with any justification that the petitioner had been acquitted of blame. If so, the petitioner cannot claim full pay and allowances for the period of his suspension. The respondents have exercised the discretion vested in them properly and in accordance with law. 24. I have assumed for purposes of this discussion that Rule 57 obliges such payment if the acquittal is one of blame. If so, the petitioner cannot claim full pay and allowances for the period of his suspension. The respondents have exercised the discretion vested in them properly and in accordance with law. 24. I have assumed for purposes of this discussion that Rule 57 obliges such payment if the acquittal is one of blame. I have my own reservations on this point as the clause in question appears actually to place a fetter on the competent authority's discretion, limiting the consideration for payment of full pay and allowance to those cases only where the officer has been acquitted of blame. I am not going in to this question, as it is unnecessary in the view, which I have taken. I therefore dismiss the original petition. No costs.