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2008 DIGILAW 1775 (ALL)

RAM KHELAWAN SINGH v. STATE OF UTTAR PRADESH

2008-08-26

S.P.MEHROTRA, V.M.SAHAI

body2008
JUDGMENT By the Court.—The short question that arises for consideration in this writ petition is whether under Rule 4(2) of U.P. Government Servant (Discipline & Appeal) Rules, 1999 (in brief “Rules 1999”) if a government servant has been suspended on the ground of pendency of a criminal charge, whether after his acquittal in the criminal trial, he is entitled to reinstatement in service with all benefits of service even though an appeal has been filed by the State against the acquittal order. 2. The facts in brief are that the petitioner was working as Divisional Manager, Bijnor in the U.P. Forest Corporation. A trap was laid against the petitioner in which he was alleged to have accepted Rs. 5000/- as illegal gratification. Consequently, he was arrested on 13.6.2001 and an FIR was lodged and Case Crime No. 214 of 2001 under Section 7/13 (1) of the Prevention of Corruption Act, 1988 was registered against him. Since the petitioner was in jail for more than 48 hours, the State Government on 2.7.2001 passed an order deeming him to have been suspended under Rule 4(3)-(a) of the Rules, 1999, and further suspending him (the petitioner) under Rule 4(2) of the Rules, 1999 till the pendency of the criminal inquiry or trial against him as stated in paragraph 3 of the suspension order. The petitioner has been acquitted of the criminal case by judgment and order dated 16.9.2003 passed in Sessions Trial No. 8 of 2002 by the Additional Sessions Judge, Court No. 3, Bijnor. Copy of the said judgment and order dated 16.9.2003 has been filed as Annexure SA-1 to the Third Supplementary Affidavit filed on behalf of the petitioner. 3. In paragraph 6 of the Second Supplementary Affidavit filed on behalf of the petitioner, it is, inter-alia, stated that no departmental enquiry/proceeding is pending against the petitioner. 4. We have heard Sri H.R. Misra, learned Senior Counsel assisted by Sri Ashutosh Tiwari for the petitioner and Sri A.N. Shukla, learned Standing Counsel appearing for the respondents. Learned counsel for the petitioner has urged that after the petitioner was acquitted of the criminal charge, the suspension order would automatically come to an end, and the respondents were under a legal obligation to reinstate the petitioner and the petitioner was entitled for his entire arrears of salary for the suspension period including other service benefits, seniority, promotion etc. Learned counsel for the petitioner has urged that after the petitioner was acquitted of the criminal charge, the suspension order would automatically come to an end, and the respondents were under a legal obligation to reinstate the petitioner and the petitioner was entitled for his entire arrears of salary for the suspension period including other service benefits, seniority, promotion etc. On the other hand, Sri A.N. Shukla, learned Standing Counsel has filed a Supplementary Counter Affidavit wherein it has been stated that the petitioner had been reinstated in service with effect from 21.12.2001 by office memorandum dated 4.6.2002, which was communicated to the petitioner. In view of the stay order dated 21.12.2001 passed by this Court, the petitioner was reinstated in service subject to the decision of the writ petition. Learned Standing Counsel has further urged that since the criminal appeal is pending, the petitioner is not entitled for reinstatement in service with all benefits of service. Learned Standing Counsel has urged that the appeal is regarded as continuation of a trial and unless the appeal is decided and the petitioner is acquitted of the criminal charge in appeal, he is not entitled to be reinstated in service and given the benefits of service. He has further urged that the State Government has filed an appeal against the acquittal of the petitioner under Section 378, Cr.P.C. 5. On the basis of the arguments advanced by the learned Standing Counsel, the question that arises for consideration is that in case a person, who was deemed to have been suspended under Rule 4(3)(a) of the Rules, 1999 on a technical ground of being in jail for more than 48 hours and was suspended under Rule 4(2) of the Rules, 1999, during the pendency of investigation/inquiry/trial with regard to a criminal charge against him, is acquitted in the criminal trial, then whether, after acquittal, he is entitled for reinstatement with all benefits of service even though an appeal has been filed by the State Government against the order of the acquittal and the same is pending. It is necessary to extract Rule 4(2) of the Rules 1999 as under : “4(2) A Government servant in respect of, or against whom an investigation, inquiry or trial relating to a criminal charge, which is connected with his position as a Government servant or which is likely to embarrass him in the discharge of his duties or which involves moral turpitude, is pending, may, at the discretion of the appointing authority or the authority to whom the power of suspension has been delegated under these rules, be placed under suspension until the termination of all proceedings relating to that charge.” 6. We have carefully examined this Rule. It applies only to those cases where investigation, inquiry or report relating to a criminal charge against a government servant is pending. Once the learned Sessions Judge passes an order, either convicting or acquitting the person against whom criminal charge is under trial, the trial comes to an end. This Rule does not postulate a situation nor provide that in case appeal is filed by the State against the order of acquittal of a government servant under Section 378, Cr.P.C., even then the government servant would remain under suspension or he could not be reinstated even after his acquittal by the Sessions Judge. The words “until the termination of all proceedings relating to that charge” occurring in the end of the above-noted Rule evidently refer to the words “an investigation, inquiry or trial relating to a criminal charge” occurring in the beginning of the said Rule. Therefore, the expression “termination of all proceedings relating to that charge” means that with regard to the charge all proceedings in the trial should come to an end. Since the Rule is confined only to the stage of trial and not to appellate stage, the respondents were under a legal duty to reinstate the petitioner in service after the petitioner was acquitted by granting all benefits of service available to the petitioner including the arrears of salary for the period of suspension. 7. It may be mentioned that the words “investigation”, “inquiry”, “trial” and “appeal” have been used in distinct senses in the Code of Criminal Procedure. 7. It may be mentioned that the words “investigation”, “inquiry”, “trial” and “appeal” have been used in distinct senses in the Code of Criminal Procedure. Once Rule 4(2) of the Rules, 1999 uses the expression “investigation, inquiry or trial”, it evidently excludes “appeal” from its purview even if we were to accept the submission of the learned Standing Counsel that “appeal” is continuation of “trial”. 8. For the reasons given above, since the petitioner has already been reinstated in service under the interim order of this Court with effect from 21.12.2001 by order dated 4.6.2002 which was communicated to the petitioner, Annexure SCA-1 to the Supplementary Counter Affidavit, he would be deemed to be continuing in service and would be given all benefits of service including the arrears of salary during the suspension period. 9. In the result, this writ petition succeeds and is allowed. A writ of certiorari is issued and the impugned suspension order dated 2.7.2001 is quashed with the declaration that as the petitioner had already been acquitted on 16.9.2003, the said suspension order automatically came to an end and the effect of which would be that the suspension would be deemed to be non existent. A writ of mandamus is issued directing the respondents to give all service benefits to the petitioner including the arrears of salary during the suspension period, seniority, promotion etc. within a period of four months from the date of production of a certified copy of this order before the respondent No. 1. 10. Parties shall bear their own costs. ————