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2008 DIGILAW 207 (JK)

Mohd. Shafi Bhat v. State

2008-05-23

HAKIM IMTIYAZ HUSSAIN

body2008
1. Petitioner Mohd. Shafi Bhat was working as Sr. Assistant in the Jammu & Kashmir Secretariat (Subordinate) Service. In the year 1976, during his posting in the Housing and Urban Development Department he was arrested by the police in connection with a corruption case. He remained in custody for more than 48 hours as such on 27.8.1976 he was deemed to have been placed under suspension. Thereafter a challan against him was filed in the Court of Special Judge, Anti-corruption, Kashmir Province. On conclusion of the trial he was convicted and sentenced to rigorous imprisonment for two years and a fine of Rs. 1000/- by the Court vide judgment dated 28.6.1979. Later on the sentence was reduced from 2 years rigorous imprisonment to six months simple imprisonment with a fine of Rs. 100/-. 2. In an appeal against the said judgment, this Court vide its judgment dated 3.3.2005 allowed the appeal and acquitted the petitioner. He submitted his joining report in the department on 2.6.2005. On the basis of his date of birth recorded in his service book he retired on superannuation w.e.f. 30.4.2006. By order dated 16.10.2006, which is impugned in the present petition, his period of absence has been treated as under: - a. Re-instatement of Shri Mohammad Shafi, Senior Assistant of J&K Secretariat (Subordinate) Service w.e.f. 2.6.2005. b. Treatment of the period w.e.f. 27.8.1976 to 7.9.1976 as on leave whatever kind due; c. Treatment of the period w.e.f. 8.9.1976 to 31.5.1979 as on duty. d. Treatment of the period w.e.f. 1.6.1979 to 1.6.2005 as Dies non. The Dies non period shall not qualify for any service benefit in terms of SRO 514 of 1999 dated: 22.11.1999. 3. The petitioner is aggrieved of clause (d) of the order and submits that since he got an acquittal from the Court the period spent by him on suspension cannot be treated as dies-non. He has through the medium of the present petition prayed for a writ of certiorari for quashing clause-D of Govt. Order No. 1288-GAD of 2006 dated 16.10.2006. 4. Respondents have filed their reply in which they have given the background of the case. He has through the medium of the present petition prayed for a writ of certiorari for quashing clause-D of Govt. Order No. 1288-GAD of 2006 dated 16.10.2006. 4. Respondents have filed their reply in which they have given the background of the case. They have stated that in the backdrop of the facts the intervening period w.e.f. 27.8.1976 till 1.6.2005 has been treated strictly in accordance with the rules taking into account his period of police detention from 27.8.1976 to 7.9.1976 as on leave, followed by the period when he was still in Govt. service till the date of his conviction by the Court i.e. w.e.f. 8.9.1976 to 31.5.1979 as on duty and subsequently 1.6.1979 to 1.6.2005 as Dies-non. He was reinstated in service w.e.f. 2.6.2005, thus was entitled to all regular benefits with effect from the said date till his retirement on superannuation from Govt. service. Heard. I have considered the matter. 5. The petitioners period of suspension right from the date he was arrested till he joined the department again on 1.6.2005 has been settled by means of order dated 16.10.2006.The order reads as under: - Whereas, Shri Mohammad Shafi, Senior Assistant of J&K Secretariat (Subordinate) Service during his posting in the Housing & Urban Development Department was deemed to have been placed under suspension on 27.8.1976 on the grounds of his involvement in a corruption case and having remained in Police custody for more than 48 hours; and Whereas, as per the judgment dated 28.6.1979 of Special Judge, Anti Corruption, Kashmir Province, the said official was convicted and given a rigorous imprisonment for two years and a fine of Rs. 1000/- and Whereas, Shri Mohammad Shafi challenged in the Honble High Court, conviction/sentence awarded by the Special Judge Anti Corruption and on the basis of the directions of the Honble High Court, the Special Judge, Anti Corruption vide judgment dated 31.3.2000 reduced two years rigorous imprisonment to six months simple imprisonment with a fine of Rs. 100/- and; Whereas, the said official again approached the Honble High Court and the Court vide its judgment dated 3.3.2005 ordered as under: - "Under these circumstances I find that there is considerable room for doubt in this case. The statement of P.W. B.K. Challo which is the foundation of the prosecution case cannot be accepted without independent corroboration. 100/- and; Whereas, the said official again approached the Honble High Court and the Court vide its judgment dated 3.3.2005 ordered as under: - "Under these circumstances I find that there is considerable room for doubt in this case. The statement of P.W. B.K. Challo which is the foundation of the prosecution case cannot be accepted without independent corroboration. The prosecution case appears to be doubtful the benefit of which must go to the appellant. Hence the appeal is accepted and judgment of conviction dated 28.6.1979 and order of sentence dated 31.3.2002 are set aside. The appellant is acquitted. The bail bonds of the appellant are cancelled. Appeal allowed. Order accordingly. Whereas, Shri Mohammad Shafi after his acquittal by the Honble High Court submitted joining report in Housing & Urban Development Department on 2.6.2005. Whereas in the meanwhile Shri Mohammad Shafi on the basis of the Date of Birth recorded in his Service Book retired on superannuation w.e.f. 30.4.2006; and Whereas, the issues was examined in the General Administration Department in consultation with the Law/Finance Departments; and it is hereby ordered. a. Re-instatement of Shri Mohammad Shafi, Senior Assistant of J&K Secretariat (Subordinate) Service w.e.f. 2.6.2005. b. Treatment of the period w.e.f. 27.8.1976 to 7.9.1976 as on leave what ever kind due; c. Treatment of the period w.e.f. 8.9.1976 to 31.5.1979 as on duty. d. Treatment of the period w.e.f. 1.6.1979 to 1.6.2005 as Diesnon. The Diesnon period shall not qualify for any service benefit in terms of SRO 514 of 1999 dated: 22.11.1999. 6. Out of this the petitioner is aggrieved only of the settlement of the period w.e.f. 1.6.1979 to 1.6.2005 as dies-non. The order further states that dies-non period shall not qualify for any service benefit in terms of SRO 514 of 1999 dated 22.11.1999. Thus by treating the period of absence from 1.6.1979 to 1.6.2005 as dies-non, the petitioner has been deprived of the service benefits for the said period. 7. The order does not show that the authority found that the suspension was justified. Even in the reply submitted by the respondents, it is nowhere stated that the suspension was justified and on that ground the period was treated as dies-non. The ground for treating the period dies-non given in the reply is that during this period the petitioner did not perform any Government work. 8. Even in the reply submitted by the respondents, it is nowhere stated that the suspension was justified and on that ground the period was treated as dies-non. The ground for treating the period dies-non given in the reply is that during this period the petitioner did not perform any Government work. 8. Under rule 108-B Civil Service Regulations if a suspended employee is reinstated, the authority reinstating him has to make a specific order regarding pay and allowances to be paid to such employee for the period of his absence from duty. The article reads as under: - 108-B(i) When a Government servant who has been dismissed, removed, compulsorily retired before attaining the age of superannuation, or suspended is reinstated the authority competent to order the reinstatement shall consider and make a specific order: - (a) Regarding the pay and allowance to be paid to such Government servant 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. (ii) Where the authority mentioned in Sub-Rule (i) is of opinion that the Government servant has been fully exonerated or in the case of suspension, that it was wholly unjustified the Government servant shall be given the full pay and allowances to which he would have been entitled had he not been dismissed, removed, compulsorily retired before attaining the age of superannuation or suspended, as the case may be. The period of absence from duty shall be treated as period spent on duty. 9. In case of suspension the competent authority should form an opinion whether it was wholly unjustified or not before making an order of settlement of suspension period. Where the authority does not make a mention of it in the order, it would be taken that the authority was satisfied that the suspension was wholly unjustified. Where an employee is suspended on a criminal charge but on conclusion of the trial/or appeal arising out of a conviction if any, he is exonerated, and the authority does not return a specific finding that the suspension was justified, the employee is entitled to full pay or allowances to which he would have been entitled otherwise. Such an employee cannot be asked to remain without pay for the period of his suspension and he is to be treated as on duty. Such an employee cannot be asked to remain without pay for the period of his suspension and he is to be treated as on duty. Reliance in this behalf can be placed on Brahma Chandra Gupta v. Union of India AIR 1984 SC 380, Ghulam Nabi v. State of J&K AIR 1966 J&K 27, Ghulam Mohd. Dar v. Education Commissioner 1986 SLJ 339 and Sudershan Kumar Abrol v. State of J&K 1989 SLJ 29. 10. An employee under suspension cannot be deprived of salary on his reinstatement only on the ground that during the period of suspension he did not attend the Government work. Suspension has been defined `as a state of being debarred; when an employee is under suspension he does not perform the normal duties which he can otherwise perform. Suspension is only to debar the employee temporarily from performing his functions as such he cannot be denied the benefits of salary and allowance, when after a trial or enquiry he is exonerated and reinstated in service. During the period of suspension the employee stops doing Government work not by his own choice, lapse or negligence but under compelling circumstances in which he is put by the employer himself. He continues to be a member of the service but is not permitted to work and further during the period of suspension he is not free to go and seek employment elsewhere as during the period he does not cease to be a government servant and is subject to the same disciplinary action and penalties as any other employee. 11. In view of this legal position and in the facts and circumstances of the case, I do not find that the respondents were justified in treating said period as diesnon. Since the petitioner has been acquitted from the charges as his appeal has been accepted by this Court and no departmental enquiry was held against him, he should have been treated as on duty and given the service benefits which otherwise were admissible to him under the rules. Thus I find the period w.e.f. 1.6.1979 to 1.6.2005 has not been settled in accordance with the rules. Accordingly this petition is allowed and cl. d of order No. 1288-GAD of 2006 dated 16.10.2006 is hereby set aside. Thus I find the period w.e.f. 1.6.1979 to 1.6.2005 has not been settled in accordance with the rules. Accordingly this petition is allowed and cl. d of order No. 1288-GAD of 2006 dated 16.10.2006 is hereby set aside. Respondents are directed to pass fresh orders in light of the observations made above within two weeks from the date this order is served on them. Order accordingly.