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2002 DIGILAW 1784 (RAJ)

Mohan Lal Bairwa v. State

2002-10-29

ARUN MADAN

body2002
JUDGMENT 1. - The case of the petitioner in short is that he was appointed on 1.9.79 on the post of LDC in District Treasury at Sawai Madhopur. On 6.4.1983, the petitioner was placed under suspension pursuant to FIR lodged against him by Head Master of the Middle School 'Chauth Ka Barwara', District Sawai Madhopur on the allegations that the petitioner had forged three medical bills and withdrawn the payment from the Treasury. The police started investigation and during investigation, the petitioner was arrested and kept in police custody from 10.10.1984 to 22.10.1984. Thereafter, the Collector Sawai Madhopur in pursuance of his order dated 6.4.1983 placed the petitioner under suspension by having resort to the provisions of Rule 13 of the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958 for short 'the CCA Rules'. Thereafter, his suspension order was revoked by the Collector vide his order dated 18.1.1984 (Ann. 2) on record. The petitioner was again placed under suspension vide order dated 26.11.1984 (2nd order) (Ann. 3) and remain suspended till 24.1.1987. The petitioner was reinstated back in services of the respondent department from 25.1.87. He has been thereafter working till date as LDC. In the meanwhile, departmental enquiry came to be initiated against the petitioner on 13.8.1986 on the basis of the same allegations as levelled in the FIR but it is significant to mention that no evidence has been recorded in the matter so far. 2. During the course of hearing, learned counsel for the petitioner has contended that he has appeared several times before the enquiry officer but the matter is still pending for recording the evidence of the department officials. 3. From the perusal of the charge sheet, it is apparent that the petitioner had withdrawn the payment against three medical bills amounting to Rs. 8720/-. A criminal case was registered against the petitioner for offences under Sections 420, 467 and 471 IPC on the basis of which, FIR No. 79/1983 with the PS Chauth Ka Barwara, Sawai Madhopur was registered. The charge sheet was filed in the Court of Special Judge SC/ST (Prevention of Atrocities Cases), Sawai Madhopur vide Criminal Appeal No. 26/98 on being transferred by the Sessions Judge Sawai Madhopur. After framing of the charge, the evidence was recorded by the Special Court. The evidence of the delinquent petitioner was recorded. The charge sheet was filed in the Court of Special Judge SC/ST (Prevention of Atrocities Cases), Sawai Madhopur vide Criminal Appeal No. 26/98 on being transferred by the Sessions Judge Sawai Madhopur. After framing of the charge, the evidence was recorded by the Special Court. The evidence of the delinquent petitioner was recorded. The aforesaid medical bills were sent to the Treasury under the signatures of the then Headmaster of Govt. Higher Secondary School Chauth Ka Barwara Sawai Madhopur. Expert witness like the Hand Writing Expert in proving the signatures on the alleged forged bills was not produced in evidence by the department as corroborative evidence. Thus, in view of the suppression and non-production of material evidence by the department before the learned Special Judge Sawai Madhopur, the Appellate Court had no option but to exonerate the petitioner of the charges framed against him and he was consequently acquitted by the appellate Court vide its order dated 11.7.2002 for commission of offences under Sections 420, 467 & 471 IPC. 4. The law is so well settled that mere initiation of the departmental enquiry is no bar for initiating the criminal proceedings against the delinquent but nevertheless the fact remains that obviously the petitioner was placed under suspension on the basis of the same charges i.e. forging of the medical bills and having withdrawn the amount from the State Treasury and on both the occasions the orders of suspension dated 16.4.83 and 26.11.1984, were revoked vide orders dated 18.1.1984 and 28.1.1987 respectively by the department and thereafter, vide order dated 13.8.1986 the Collector, Sawai Madhopur initiated departmental enquiry against the petitioner. The gravamen of the charges pursuant to which the criminal case for offence under o Sections 420, 467 and 471 IPC was registered against the petitioner is exactly the same as in the departmental enquiry dated 13.8.86 and from the perusal of the findings recorded by the Special Judge Sawai Madhopur, it is explicit that the department failed to make out any case against the petitioner either for want of material evidence or for not furnishing the evidence relevant to the matter before Special Judge for reasons best known to it. Once, the petitioner has been exonerated of the criminal charges against him the irresistible conclusion which is inevitable is that since he was not found guilty of the offence alleged. Once, the petitioner has been exonerated of the criminal charges against him the irresistible conclusion which is inevitable is that since he was not found guilty of the offence alleged. Consequently, he also deserves to be exonerated of the self same allegations in departmental enquiry as well. 5. During the course of hearing, it has been brought to my notice by Mr. R.S. Sharma, learned counsel for the petitioner that no evidence has been recorded against the petitioner so far. The learned counsel for the respondent has also not controverted this contention of the petitioner as to for what sparing reasons, the evidence was not recorded against the petitioner though there is no bar under the law to conduct the departmental enquiry simultaneously notwithstanding the pendency of the criminal case. 6. From the perusal of the reply to show cause notice particularly para Nos. 7, 8 and 9, it is borne out that it was in fact due to the suspension of the petitioner and for the reasons of the pendency of the criminal case against the petitioner that the benefits as claimed could not be given to him. The respondents have taken another plea that it was in fact due to DAR action which was initiated against the petitioner and looking to the pendency of the criminal case, the same was kept in abeyance because in case the petitioner is asked to open his defence in the departmental enquiry then, it may not prejudice his rights in criminal case. On completion of evidence in the criminal case, the departmental action would also be taken up after its completion. 7. From the perusal of the judgment of the Special Judge, Sawai Madhopur, it is borne out that it is due to the lack of producing the material evidence against the petitioner more particularly, the expert witnesses in absence of which, nothing can be proved regarding forging of the medical : bills, the appellate Court found the oral evidence not worthy of any reliance and for which the benefit of doubt was extended to the petitioner and for which he was acquitted of the charges levelled against him. 8. 8. In the prayer clause of the writ petition, the petitioner has sought the following reliefs : (i) to direct non petitioner No. 1 to allow the Annual Grade increment which became due to him from April, 1983 till date; (ii) to pay the difference of salary of suspension period from April, 1983 to January, 1984 and from October, 1984 to January, 1987; (iii) to direct the non petitioners to revise the salary of the petitioner under the Revised Pay Scale Rules; (iv) to grant bonus as declared by the State Govt, from time to time after 1983; (v) to direct the non petitioner to promote the petitioner on the post of UDC from the date on which his immediate junior person was 45 promoted. 9. As regards the first three reliefs i.e. the benefit of annual grade increment, pay different of salary during the suspension period and revision of salary under the Revised Pay Scale Rules; once the petitioner has been exonerated of the criminal charges and acquitted by the Special Court, in my view, there is no bar and embargo for the respondent Department under the rules not to have extended the said benefits to the petitioner. 10. In reply to show cause notice, nothing incriminating has been brought on record against the petitioner from which it may appear to the Court to withhold the said benefits. In fact, the aforesaid benefits can very safely be described as admissible to an employee being natural outcome of the service rendered by him satisfactorily to the employer and in my considered view, the petitioner deserves to be entitled for the reliefs as prayed for by him. 11. In identical matters of Kalulal v. State and ors. (1997(2) RLR 739) and in the matter of Smt. Shanti Devi v. State of Raj. RLR 1990(1) RLR 800, the similar controversy arose for consideration of this Court. 12. In Kalulal v. State (Supra), the controversy pertain to recording of just and sufficient cause to be recorded in writing for remanding the case for de-novo enquiry or in any case the disciplinary authority is bound to give certain findings after going through the record that enquiry had been held in some laconic manner. 12. In Kalulal v. State (Supra), the controversy pertain to recording of just and sufficient cause to be recorded in writing for remanding the case for de-novo enquiry or in any case the disciplinary authority is bound to give certain findings after going through the record that enquiry had been held in some laconic manner. This issue is not relevant to the present case since the controversy involved herein is altogether different but as regards the second aspect of the matter as to whether the benefit of revised pay scales could be extended to the delinquent or not, I would like to quote the following observations of the learned Single Judge held in the above said matter: "Pendency of enquiry does not entitle or authorise the employer/competent authority to debar the employee of the benefit of statutory revision of pay scales in the absence of any rules to this effect." 13. During the course of hearing, no such rule or instructions has been brought to the notice of this Court by the learned counsel appearing for the department that as to how and in what manner the petitioner could not be given the benefit of statutory revision of pay and other benefits incidental thereto. 14. In Shanti Devi v. State (supra), the controversy which arose before the Division Bench of this Court, was as under: (a) whether the benefit of pay fixation could be withheld on the ground that the period of absence of an employee had not been regularised or that penalty has been imposed on him. In this regard, the learned Division Bench of this Court held that pay fixation cannot be denied in absence of the rules for the same; (b) as regards the annual grade increments, this Court held by having resort to Rule 29 of RSR, 1951 which stipulates, as under: "29. Increment to be drawn as a matter of course unless withheld. Subject to the provisions of Rules 26-A, 27-A and 30, an increment shall ordinarily be drawn as a matter of course unless it is withheld by the authority empowered to withhold such increment in accordance with the relevant provisions of the Classification, Control and Appeal Rules. Any order withholding an increment shall state the period for which it is withheld and whether the postponement shall have the effect of postponing future increments." 15. Any order withholding an increment shall state the period for which it is withheld and whether the postponement shall have the effect of postponing future increments." 15. The only logical and fair interpretation to the aforesaid Rule 29 RSR which emerges is that the statutory provision is for the benefit of extending the increment to a Govt. servant to be drawn as a matter of course unless withheld by the Authority empowered to withhold such increments in accordance with the provisions of the CCA Rules. 16. The State has thus been empowered under the aforesaid rules to direct the benefit of extending the grade increment to a Govt, servant including the revision thereto from the 1st of every month, falling due under the operation of the normal rules and orders regulating such increments. 17. In this regard, the matter was examined by the appropriate authority and it has been clarified that for fixation of date of increment after 1.4.1974, first due date of increment will be arrived at by adding the period of non-qualifying service with reference to the last date of increment in the previous year, then the individual will be granted the increment from the first of the month in which this due date of the increment falls. For deciding the date of increment next year, the first of the above month will be the normal date of increment with reference to which period of non-qualifying service for the increment shall be added and the individual will be granted the increment from the first of the month in which this due date of increment falls. 18. Moreover, it has been stated by the learned counsel for the petitioner during the course of hearing that since the petitioner has regularly been appointed by the respondent, the question of his having non-qualifying period would not arise. Since, there is no objection being raised by the respondents at any stage of the proceedings regarding the petitioner's having rendered the period of non-qualifying service and rather he is regularly discharging his duties prior to his suspension on 6.4.1983 and second suspension order dated 26.11.84 which have already been revoked, the : question of not giving him the benefits as prayed for would not arise. 19. 19. The inevitable conclusion which emerges as a result of above discussion is that the petitioner having been acquitted of the criminal charges levelled against him by the Special Court Sawai Madhopur should also be exonerated in the Departmental enquiry relating to the same charges, though the disciplinary proceedings are still pending against him and has not been concluded till date. 20. In the result, I do not find any justifiable reason for giving any further extension to the department to prolong the departmental enquiry against the petitioner any further which was initiated against him way back on 13.8.86 and moreover, the subject matter of enquiry being exactly the same as in the criminal case for which the petitioner has already been acquitted, in my view, no purpose would be served by extending the time for completion of departmental enquiry. 21. Hence, keeping in view the above stated position, the plea so advanced by the respondents in reply to show cause notice to the effect that in fact, the DAR action was though initiated against the petitioner but looking to the pendency of the criminal case, the same was kept in abeyance so that it may not prejudice the rights in the criminal case in the case of the petitioner; has no force. 22. The writ petition was filed in this Court on 8.8.1991. From the perusal of the order sheet, it is borne out that the respondent sought several adjournments for one reason or the other but till date even the file pertaining to the departmental enquiry has not been made available for perusal of this Court. I do not find any justifiable reason for giving any further extension to the respondent's counsel for production of the departmental file. The only reason for which the case was adjourned from time to time was due to pendency of the criminal case in which the petitioner has already been exonerated of all the charges as stated here in above. 23. As a result of the above discussion, the writ petition is allowed. The only reason for which the case was adjourned from time to time was due to pendency of the criminal case in which the petitioner has already been exonerated of all the charges as stated here in above. 23. As a result of the above discussion, the writ petition is allowed. The respondents are directed to release the Annual Grade increments which became due to the petitioner w.e.f. April, 1983 till date, to pay the difference of salary of suspension period w.e.f. April, 1983 to January, 1984 and from October, 1984 to January, 1987, to revise the salary of the petitioner under the Revised Pay Scale Rules and the benefit of bonus be also given to the petitioner as declared by the Govt, from time to time after 1983 at par with other similarly situated Govt, employees. 24. As regards the fourth relief regarding promotion of the petitioner to the post of UDC, I am of the considered view that this relief cannot be granted to the petitioner in this petition because that would depend upon his suitability for promotion to the said post and this question is left open to the respondent department. 25. Keeping in view the fact that the writ petition has been pending in this Court since August, 1991, I am of the view that the interest of justice would be well met if the petitioner is awarded interest @9% p.a. on the amount due to be paid to him. 26. The respondent department is accordingly directed to release the Annual Grade increments which became due to the petitioner w.e.f. April, 1983 till date, to pay the difference of salary of suspension period w.e.f. April, 1983 to January, 1984 and from October, 1984 to January 1987, to revise the salary of the petitioner under the Revised Pay Scale Rules and the benefit of bonus be also given to the petitioner as declared by the Govt, from time to time after 1983 at par with other similarly situated Govt, employees along with interest @9% p.a. from due date till realisation within a period of 90 days from today.No order as to costs.Writ Petition Disposed of As Above - Petitioner Entitled to interest. *******