ORDER Sanjay Yadav, J. 1. Shri Sheel Nagu, learned Counsel for the Petitioner. Shri Ashish Pathak, learned Counsel for Respondents. With consent of learned Counsel for the parties the matter is heard finally. 2. The Petitioner while he was posted as Testing Assistant Grade I at 132 KV sub station M.P. Power Transmission Co. Ltd., Shanti Nagar, Katni was placed under suspension by Order No. SE/S/S. Dn./JBP/Estt./4760 dated 30-3-2001 for the reason that the Petitioner had remained in judicial custody for a period of more than 48 hours in connection with Crime No. 97/2001 for an offence under Sections 394, 397, IPC, Police Station Gorakhpur and Crime No. 126/2001 under Section 394 and 397 Indian Penal Code, Police Station, Garha. 3. The said suspension was by invoking Rule 9(1)(b) read with Rule 9(2)(a) of Madhya Pradesh Civil Services (Classification, Control and Appeal) Rules, 1966 which stipulates that the appointing authority or any authority to which it is subordinate or the disciplinary authority or any other authority empowered in that behalf by the Governor by general or special order may place a government servant under suspension where a case against him in respect of any criminal offence is under investigation, inquiry or trial. 4. While under suspension the Petitioner was subjected to a departmental enquiry vide charge-sheet dated 11-5-2001. Two charges were levelled against the Petitioner; namely, 5. Pending departmental inquiry the criminal cases registered against the Petitioner vide Crime No. 97/2001 and 126/2001 resulted in acquittal by order dated 12-3-2007 and 30-10-2007. The acquittal orders are brought on record as Annexure P-2 and P-3. 6. In the departmental enquiry, enquiry report was furnished on 2-4-2008, whereby the Petitioner though was exonerated of the charges levelled against him; however, he was found guilty of not disclosing his arrest which was in pursuant to lodging of complaint against him. The disciplinary authority vide order dated 12-12-2008 holding the Petitioner guilty of "not intimating towards holding in the judicial custody in lieu of criminal charges against him" directed for stoppage of two annual increments with cumulative effect. In an appeal preferred by the Petitioner, the appellate authority reduced the penalty of stoppage of two increments with cumulative effect to that of censure. 7. Pertinent it is to note that before visiting the Petitioner with the aforesaid penalty, his suspension was revoked by order dated 29-9-2008. In an appeal preferred by the Petitioner, the appellate authority reduced the penalty of stoppage of two increments with cumulative effect to that of censure. 7. Pertinent it is to note that before visiting the Petitioner with the aforesaid penalty, his suspension was revoked by order dated 29-9-2008. Thereafter a show cause notice was issued to the Petitioner on 12-12-2008 calling upon him as to why the wages of suspension period from 30-3-2001 to 29-9-2008 be not restricted to the suspension allowance only. Thereafter the disciplinary authority vide order dated 24-7-2009 held that the period from 30-3-2001 to 29-9-2008, i.e., the period when the Petitioner was under suspension be treated as spent on duty but the wages of suspension period were restricted to suspension allowance (subsistence allowance only). 8. The Petitioner is aggrieved by order dated 24-7-2009 and order dated 29-7-2009. 9. After hearing the learned Counsel for the parties, the question which crops up for consideration is as to whether there can be imposition of punishment on the charge which was not levelled against the Petitioner and secondly as to whether the suspension from 30-3-2001 to 29-9-2008 can be said to be justified in view of minor penalty imposed on the Petitioner. 10. Relying upon the charges levelled against the Petitioner, learned Counsel for the Petitioner has to submit that there was no charge that the Petitioner misconducted himself by not disclosing the fact of his arrest in respect of alleged crime committed by him. It is submitted that there was also no charge against the Petitioner that such non-disclosure has brought disrepute to the employer. It is contended that the disciplinary authority having exonerated the Petitioner of the two charges levelled against him cannot on the basis of allegations not forming subject-matter of charges punish the Petitioner under the Rules. 11. The Respondents on their turn, however, justify the findings recorded by the enquiry officer and the punishment imposed, thereon by the disciplinary authority and upheld by the appellate authority. It is urged that since the charge on the basis whereof the punishment is inflicted upon the Petitioner was co-related with the charges levelled against the Petitioner the order of punishment does not suffer from vice of perversity. 12. In the context of the controversy which has been raised opportune it would be to take into consideration the relevant rule. 13. 12. In the context of the controversy which has been raised opportune it would be to take into consideration the relevant rule. 13. It is not in dispute that the provision of M.P. Civil Services (Classification, Control and Appeal) Rules, 1966 is applicable to the Petitioner. Rule 13 of the Rules empowers the disciplinary authority competent therein to institute disciplinary proceedings. Sub-rule (3) of Rule 14 stipulates where it is proposed to hold an inquiry against a government servant under the Rule, the disciplinary authority shall draw up or cause to be drawn up the substance of the imputation of misconduct or misbehaviour into definite and distinct articles of charge [Rule 14(3)(i)]. Thus it is incumbent upon the disciplinary authority to draw definite and distinct articles of charge of misconduct or misbehaviour. 14. Apparent it is from the charges levelled against the Petitioner in the case at hand, the same relate to two criminal cases registered against the Petitioner vide Crime No. 97/2001 and 126/2001. There is no whisper that the Petitioner misconducted by not disclosing the tact of his being arrested in connection with the said two criminal cases and that such arrest has resulted in bringing bad name to board. The enquiry officer who has inquired into the charges while taking into consideration the acquittal recorded in favour of the Petitioner in aforesaid two criminal cases held that the Petitioner did not disclose the fact that he was arrested in connection with criminal cases. This finding recorded by the enquiry officer becomes the foundation for holding the Petitioner guilty of misconduct. 15. In the considered opinion of this Court since there was no specific charge levelled against the Petitioner that he derelicted or misconducted by not disclosing the fact of his being arrested in connection with criminal case, he cannot be visited with punitive order in a departmental enquiry. True it is that when placed under suspension, the same was on the ground of his within judicial custody for more than 48 hours; however, unless a non-disclosure of arrest is formulated into a definite charge under Rule 14(3)(1) of the Rules of 1966, employee cannot be punished, as in such case an employee is deprived of an opportunity of effective hearing. In view of above the impugned order dated 29-7-2009; whereby, the Petitioner is visited with minor penalty of censure being not tenable in the eyes of law is hereby quashed. 16. Now coming to the second aspect as to whether the decision taken by the Respondent to treat the period of suspension as duty from 31-3-2001 to 28/29-9-2008 but restricting it to subsistence allowance. 17. Admittedly, the Petitioner was placed under suspension on his being taken into custody and he remained there for more than 48 hours in connection with crime registered against him vide Crime No. 97/2001 and 126/2001 for offences under Sections 394 and 397, Indian Penal Code. 18. Rule 9(1)(b) read with first proviso to Rule 1 of Rules of 1966 stipulates: 9(1) The appointing authority or any authority to which it is subordinate or the disciplinary authority or any other authority empowered in that behalf by the Governor by general or special order, may place a government servant under suspension: (a)... (b) where a case against him in respect of any criminal offence is under investigation, inquiry or trial: Provided that the government servant shall invariably be placed under suspension when a challan for a criminal offence involving corruption or other moral turpitude is filed against him. Furthermore Sub-rule (2)(a) read with explanation appended therewith of Rule 9 provides lor: (2) a government servant shall be deemed to have been placed under suspension by an order of appointing authority: (a) with effect from the date of his detention, if he is detained in custody whether on a criminal charge or otherwise for a period exceeding forty eight hours; (b) ... Explanation: The period of forty-eight hours referred to in Clause (b) of this sub-rule shall be computed from the commencement of the imprisonment after the conviction and for this purpose, intermittent periods of imprisonment, if any, shall be taken into account. 19. The Petitioner's suspension was thus not in contemplation of a departmental enquiry but because of his arrest in respect of a criminal case registered against him for his own alleged doings. 19. The Petitioner's suspension was thus not in contemplation of a departmental enquiry but because of his arrest in respect of a criminal case registered against him for his own alleged doings. The Petitioner's suspension was a deemed suspension under the Rules and as is observed by the Supreme Court in Union of India v. Rajiv Kumar: (2003) 6 SCC 516 that such a suspension "is not restricted in its point of duration or efficacy to the period of actual detention only." In paragraph 26 while relying upon the provisions of Rule 10 of Central Civil Services (Classification, Control and Appeal) Rules, 1965 which is couched in the same terms as Rule 9 of the Rules of 1966 it was observed by their Lordships: 26. The inevitable conclusion therefore is that the order in terms of Rule 10(2) is not restricted in its point of duration or efficacy to the period of actual detention only. It continues to be operative unless modified or revoked under Sub-rule (5)(c), as provided under Sub-rule (5)(a). 20. In somewhat similar situation, it was held by Supreme Court in Krishnakant Raghunath Bibhavnekar v. State of Maharashtra and Ors.: (1997) 3 SCC 636 ; wherein, it was observed: 4. Mr. Ranjit Kumar, learned Counsel for the Appellant, contends that under Rule 72(3) of the Maharashtra Civil Services (Joining Time, Foreign Services, and Payment during Suspension, Dismissal and Removal) Rules, 1991 (for short, the 'Rules'), the Rules cannot be applied to the Appellant nor would the Respondents be justified in treating the period of suspension of Appellant, as the period of suspension as not being warranted under the Rules. We find no force in the contention. It is true that when a Government servant is acquitted of offences, he would be entitled to re-instatement. But the question is: whether he would be entitled to all consequential benefits including the pensionary benefits treating the suspension period as duty period, as contended by Shri Ranjit Kumar? The object of sanction of law behind prosecution is to put an end to crime against the society and laws thereby intends to restore social order and stability. The purpose of prosecution of a public servant is to maintain discipline in service, integrity, honesty and truthful conduct in performance of public duty or for modulation of his conduct to further the efficiency in public service. The purpose of prosecution of a public servant is to maintain discipline in service, integrity, honesty and truthful conduct in performance of public duty or for modulation of his conduct to further the efficiency in public service. The Constitution has given full faith and credit to public acts. Conduct of a public servant has to be an open book; corrupt would be known to everyone. The reputation would gain notoriety. Though legal evidence may be insufficient to bring home the guilt beyond doubt or fool-proof. The act of reinstatement sends ripples among the people in the office/locality and sows (sends) wrong signals for degeneration of morality, integrity and rightful conduct and efficient performance of public duty. The constitutional animation of public faith and credit given to public acts, would be undermined. Every act or the conduct of a public servant should be to effectuate the public purpose and constitutional objective. Public servant renders himself accountable to the public. The very cause for suspension of the Petitioner and taking punitive action against him was his conduct that led to the prosecution of him for the offences under the Indian Penal Code. If the conduct alleged is the foundation for prosecution, though it may end in acquittal on appreciation or lack of sufficient evidence, the question emerges: whether the Government servant prosecuted for commission of defalcation of public funds and fabrication of the records, though culminated into acquittal, is entitled to be reinstated with consequential benefits? In our considered view, this grant of consequential benefits with all backwages etc. cannot be as a matter of course. We think that it would be deleterious to the maintenance of the discipline if a person suspended on valid considerations is given full backwages as a matter of course, on his acquittal. Two courses arc open to the disciplinary authority, viz., it may enquire into misconduct unless, the self-same conduct was subject of charge and on trial the acquittal was recorded on a positive finding that the accused did not commit the offence at all; but acquittal is not on benefit of doubt given. Appropriate action may be taken thereon. Two courses arc open to the disciplinary authority, viz., it may enquire into misconduct unless, the self-same conduct was subject of charge and on trial the acquittal was recorded on a positive finding that the accused did not commit the offence at all; but acquittal is not on benefit of doubt given. Appropriate action may be taken thereon. Even otherwise, the authority may, on reinstatement after following the principle of natural justice, pass appropriate order including treating suspension period as period of not on duty, (and on payment of subsistence allowance etc.) Rules 72(3), 72(5) and 72(7) of the Rules give a discretion to the Disciplinary Authority. Rule 72 also applies, as the action was taken after the acquittal by which date rule was in force. Therefore, when the suspension period was treated to be a suspension pending the trial and even after acquittal, he was reinstated into service, he would not be entitled to the consequential benefits. As a consequence, he would not be entitled to the benefits of nine increments as stated in para 6 of the additional affidavit. He is also not entitled to be treated as on duty from the date of suspension till the date of the acquittal for purpose of computation of pensionary benefits etc. The Appellants is also not entitled to any other consequential benefits as enumerated in paragraphs 5 and 6 of the additional affidavit. 21. Reliance placed by the Petitioner on the circular issued State Government No. C-6/01/2005/??/3 dated 13-1-2005 to substantiate the submission that the Petitioner having been exonerated of the charges levelled against him the suspension cannot be treated as justified has no force in the peculiar facts of the present case. 22. Paragraph 6 of the circular relied upon by the Petitioner provides for: ??-?? -????? ???? ??????? ????-?? ???? ??? ??? ???? ??'???? -????? ???? ?????? '?? -????? ?? ?????? ?? ???? ?? ?? ???? ??'??? "?????????? ???? ?? ?? ???? | ????? -??? ?? ?? ?????? '??? ?? ?? ??? ???'?? ??? ??????? -????? ???? ?? ??'???? ???? ?? ???? 54 - ?? ?? ?????????-?? ??? ??????? ???? ????? ?? ??'????? ???? ?? ???????? ???? ????? (-????? ?? ??'??? ???? ??? ??-??? ??? -? "???? ??????? ?????") ?? ??-? ?? ??????? ?? ) ???? ?? ?????? ?? ?????? ?? ???????? ???? ?? ???? ?? '?-? ??-? ??? ??? ???????? ??? ?????? '??? -?? ??, ?? ?? ??'???? ???? ?? ???? 54 - ?? ?? ?????????-?? ??? ??????? ???? ????? ?? ??'????? ???? ?? ???????? ???? ????? (-????? ?? ??'??? ???? ??? ??-??? ??? -? "???? ??????? ?????") ?? ??-? ?? ??????? ?? ) ???? ?? ?????? ?? ?????? ?? ???????? ???? ?? ???? ?? '?-? ??-? ??? ??? ???????? ??? ?????? '??? -?? ??, ?? ???: ???? -?'? ???-?? | 23. In the case at hand the Petitioner admittedly was suspended because of his detention for a period of more than 48 hours and remained under suspension during the criminal prosecution. It is the Petitioner who has to blame himself, because the initiation of criminal case was not at the instance of the Respondent, and as is held by the Supreme Court in Union of India and Ors. v. Jaipal Singh : 2004 (3) MPLJ (SC) 569 : (2004) 1 SCC 121 though, in the context of grant of backwages in respect of a period when a government servant is lodged in jail after being convicted by the trial court and is released only after he is acquitted in appeal. It was observed: 4. On a careful consideration of the matter and the materials on record, including the judgment and orders brought to our notice, we are of the view that it is well accepted that an order rejecting a special leave petition at the threshold without detailed reasons therefor does not constitute any declaration of law by this Court or constitute a binding precedent. Per contra, the decision relied upon for the Appellant is one on merits and for reasons specifically recorded therefor and operates as a binding precedent as well. On going through the same, we are in respectful agreement with the view taken in. If prosecution, which ultimately resulted in acquittal of the person concerned was at the behest or by department itself, perhaps different considerations may arise. On the other hand, if as a citizen the employee or a public servant got involved in a criminal case and if after initial conviction by the trial court, he gets acquittal on appeal subsequently, the department cannot in any manner be found fault with for having kept him out of service, since the law obliges, a person convicted of an offence to be so kept out and not to be retained in service. Consequently, the reasons given in the decision relied upon, for the Appellants are not only convincing but are in consonance with reasonableness as well. Though exception taken to that part of the order directing re-instatement cannot be sustained and the Respondent has to be re-instated, in service, for the reason that the earlier discharge was on account of those criminal proceedings and conviction only, the Appellants are well within their rights to deny backwages to the Respondent for the period he was not in service. The Appellants cannot be made liable to pay for the period for which they could not avail of the services of the Respondent. The High Court, in our view, committed a grave error, in allowing backwages also, without adverting to all such relevant aspects and considerations. Consequently, the order of the High Court insofar as it directed payment of backwages are liable to be and is hereby set aside. 24. In the case at hand since the Petitioner was placed under suspension on his being in custody for more than 48 hours in respect of the offence under Sections 394 and 397, Indian Penal Code in connection with Crime Nos. 97/2001 and 126/2001, the same cannot be said to be unjustified as the launching of criminal prosecution was not at the instance of the employer. 25. In view whereof the order dated 24-7-2009 and its confirmation by order dated 29-7-2009 cannot be found fault with. The petition to the said extent stands dismissed. There shall be no costs.