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2010 DIGILAW 1541 (BOM)

State of Maharashtra v. Sajjad Ali Mohammad Ali

2010-10-15

MRIDULA BHATKAR, S.A.BOBDE

body2010
JUDGMENT Mrs. MRIDULA BHATKAR, J. :- The petitioners have challenged the order dated 27.2.2002 passed by the Maharashtra Administrative Tribunal, Bench at Nagpur wherein the period of absence of the original respondent from 3.9.1975 till 10.4.1987 was ordered to be treated as duty for all purposes including the financial benefits. The original respondent who was working as Accountant at Government Polytechnic, Nagpur expired during the pendency of this writ petition and, therefore, the present respondents I A to 8H were brought on record. The original respondent was prosecuted for misappropriation of the cash of Rs. 5702.42/and was charged under Section 409 of the Indian Penal Code in Criminal Case No.65/86. Pursuant to the registration of the offence, the original respondent was in police custody from 3.9.1975 to 6.9.1975. Thereafter, he remained absent and did not report on duty till 9.3.1981. The petitioners took out an order dated 6.4.1981 suspending him from the services with effect from 9.3.1981 i.e. from the date on which he joined on duty. The original respondent was acquitted from the criminal case as he was not found guilty for the offence under section 409 of the Indian Penal Code and thereafter the original respondent came to be reinstated by an order dated 10.4.1987 which was issued by the petitioner no.3-The Deputy Director of Vocational Education. The suspension period from 9.3.1981 till his joining the duty after reinstatement i.e. 10.4.1987 was ordered to be regularized as leave permissible to the original respondent. The petitioners issued order on 9.8.1989 regularizing the period from 3.9.1975 to 6.9.1975 as on duty. However, in the meantime, the petitioners initiated depaJ1mentai enquiry against the original respondent which concluded in holding the original respondent guilty for misconduct during his absence from 6.12.1971 till 8.3.1981. He did not submit any leave application hence has committed a breach of Rule 3 of the Maharashtra State Civil (Conduct) Rules of 1979 and, therefore, the period from 3.9.75 till 8.3.81 should be treated as extra ordinary leave without pay and that period should not be considered for the purpose of pensionary benefits. The original respondent challenged the action of the petitioners suspending him from 9.3.1981 and holding him not entitled to the monetary benefits of the period from 3.9.1975 till 8.3.1981. The original respondent challenged the action of the petitioners suspending him from 9.3.1981 and holding him not entitled to the monetary benefits of the period from 3.9.1975 till 8.3.1981. The Maharashtra Administrative Tribunal partially allowed the appeal and held that the original respondent's period of absence from 3.9.1975 till 10.4.1987 should be treated as duty for all purposes. 2. Ms. Khan, learned AGP for the petitioners has submitted that the original respondent after his release from the police custody i.e. on 6.9.1975 did not report the office and he remained absent throughout till 9.3.1981. The petitioners in the Departmental Enquiry found the original respondent guilty for serious misconduct because he did not submit any application for leave. He remained absent throughout without intimation and, therefore, he was not qualified to get the salary for the period of absence. The action taken by the petitioners under Rule 3 of Maharashtra Civil Services (Conduct) Rules, 1979 is legal and decision of the Maharashtra Administrative Tribunal of regularising the said period as a period of suspension is devoid of merit and is to be set aside. 3. The learned counsel appearing for the respondents submitted that in view of the Rule 4(2)(a) of the Maharashtra Civil Services (Discipline and Appeal) Rules, 1979 the Original respondent was suspended and the petitioners did not modify or revoke the suspension till 9.4.1981. In support of his submission, the learned counsel relied on Union of India Vs. Rajiv Kumar, (2003)6 Supreh1e Court Cases 516; and Anami Narayan Roy Vs. Suprakash Chakravarthy and others (2009(3) ALL MR 186). 4. The short point involved in the present petition is from which date the period of suspension starts in view of the provisions of Rule 4(2)(a) of the Maharashtra Civil Services (Discipline and Appeal) Rules. 1979. If, a Government Servant is prosecuted and he spends more than 48 hours in the police custody. then he is deemed to be suspended. Rule 4(2)(a) of the Maharashtra Civil Services (Discipline & Appeal) rules, 1979 reads as follows: "Rule 4(2): A Government servant shall be deemed to have been placed under suspension (emphasis added) by an order of appointing authority- (emphasis added)- With effect from the date of his detention, if he is detained in police or judicial custody, whether on a criminal charge or otherwise, for a period exceeding forty-eight hours," 5. The Rule is clear about the deeming provision of suspension of the Government servant on his detention in police custody or judicial custody for more than 48 hours. The learned AGP for the petitioners has tried to highlight that the said deeming provision cannot come into force automatically and the order of suspension required to be passed by an appointing authority. Apparently. one may find a force in the submissions of the learned AGP for the petitioners as the said rule speaks about placing a Government servant under suspension by an order of appointing authority. Therefore, it may stand to reason that subject to the order passed by the appointing authority the deeming provision will come into effect. One may think whether the Rule leaves discretion to the appointing authority to initiate the action of suspension. However, this shadow of doubt is cleared by the Judgment in the case of Union of India Vs. Rajiv Kumar (supra) by the Hon 'ble Supreme Court. In the said case, the Hon 'ble Supreme Court has clarified that the deeming provision of suspension comes into operation immediately, as soon as the Government servant completes the period of detention in police custody or judicial custody of 48 hours irrespective of the appointing authority issuing any such order of suspension. While dealing with the sub rule 2 of Rule 10 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965. The said deeming provision in Rule 4.2 of the Maharashtra Civil Services (Discipline & Appeal) Rules, 1979 is in pari materia with Rule 10(2) of Central Civil Services (Classification, Control and Appeal) Rules, 1965. The Hon'ble Apex Court in para 14 has observed as follows: "Rule 10(2) is a deemed provision and creates a legal fiction. A bare reading of the provision shows that an actual order is not required to be passed. That is deemed to have been passed by operation of the legal fiction. It has as much efficacy, force and operation as an order otherwise specifically passed under other provisions. It does not speak of any period of its effectiveness." 6. A bare reading of the provision shows that an actual order is not required to be passed. That is deemed to have been passed by operation of the legal fiction. It has as much efficacy, force and operation as an order otherwise specifically passed under other provisions. It does not speak of any period of its effectiveness." 6. In furtherance of the clarification, the Hon'ble Supreme Court has also relied on Section 10(5)(a) which is also in pari materia with Rule 5(a) of the Maharashtra Civil Services (Discipline) Rules, 1979 which speaks as follows: "5(a): An order of suspension made or deemed to have been made under this rule shall continue to remain in force until it is modified or revoked by the authority competent to do so." 7. The same view is adopted by the Division Bench of our High Court in Anami Narayan Roy Vs. Suprakash Chakravarthy and others (supra). 8. In the present case the original respondent was deemed to be suspended on 6.9.1975 since he completed 48 hours in the police custody and the said order was never modified or revoked by the petitioners till the original respondent was acquitted on 4.5.1987. After his acquittal, he was reinstated in service. The order of suspension dated 6.4.1981 with effect from 9.3.1981 cannot be said to be dejure an order of suspension. In view of the deeming provisions under the said Rules. the authority had no discretion whether to pass the order of suspension or not under the said Rule as suspension must be deemed to have taken place. However, under Rule 5(a) of the Maharashtra Civil Services (Discipline) Rules. 1979, the authority had an option to modify or revoke the said suspension by issuing order. The petitioners did Dot use its power under Rule 5(a) and, therefore, the suspension of original respondent came in operation on 6.9.1975 and it continued till he was reinstated after his acquittal. The Maharashtra Administrative Tribunal, therefore, has rightly held that the said period of suspension after the acquittal is to be considered as a permissible leave and was entitled to get his salary and other benefits. Hence, no interference is required. The petition is dismissed. Rule is discharged. Petition dismissed.