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2013 DIGILAW 183 (CHH)

CHHOTELAL SAHU v. STATE OF C. G.

2013-06-20

MANINDRA MOHAN SHRIVASTAVA

body2013
ORDER Heard. 1. By this petition under Article 226 of the Constitution of India, the petitioner has assailed the correctness and validity of order dated 3.6.2011 (Annexure P-1) and order dated 10.3.2011 (Annexure P-2).Vide order dated 10.3.2011, though the suspension of the petitioner was revoked, petitioner's claim of salary has been rejected, limiting only to subsistance allowance already paid to the petitioner, including the period of suspension for the purposes of pension. On a revision made to the Commissioner, order dated 10.3.2011 has been maintained. 2. The relevant facts of the case are in narrow encompass. While working as a Peon, the petitioner was subjected to criminal proceedings. FIR alleging commission of offence under Sections 363, 366, 376 (1) and 372 read with Section 511 of the IPC was registered, which led to his arrest. Vide order dated 10.9.1997, the petitioner was placed under suspension. The trial culminated in conviction for commission of offence under Section 417 IPC by which the petitioner was imposed fine of Rs.5,000/- and in default of payment of fine, R.I. for 3 months. The petitioner was acquitted of all other charges under Sections 363, 366, 376 (1) and 372 of the IPC. Aggrieved by the judgment of conviction and order of sentence passed by the trial Court, an appeal was preferred which was allowed vide order dated 7.11.2009, acquitting the petitioner of the charges under Section 417 of the IPC also. Soon thereafter, the petitioner submitted an application on 18.11.2009 before the authority to revoke suspension and reinstate him on the post of Peon, followed by couple of reminders. Vide 'order dated 14.6.2010 (Annexure P-5), the petitioner was reinstated, revoking his suspension. The petitioner then claimed that the period from 10.9.1997 to 14.6.2010 should not only be treated as period spent on duty, but it should also be considered for granting him arrears of pay-scale and all consequential benefits, including the period for the purpose of pension as well. Vide order dated 10.3.2011, the Collector, while allowing the period to be counted for the purposes of pension, refused to grant arrears of salary, limiting it to the subsistence allowance already paid to the petitioner. On revision made to the Commissioner, the order passed by the Collector was maintained. 3. Learned counsel for the petitioner argued that the petitioner was placed on suspension on criminal charges and arrested also. On revision made to the Commissioner, the order passed by the Collector was maintained. 3. Learned counsel for the petitioner argued that the petitioner was placed on suspension on criminal charges and arrested also. The Court, however, acquitted the petitioner of all charges. Therefore, the suspension of the petitioner was wholly unjustified. He submits that because of false accusation, the petitioner remained under suspension and was deprived of full salary during the period of suspension. Therefore, once the very basis of suspension goes and the petitioner is acquitted of the charges, he is entitled to all consequential benefits which he would have enjoyed but for his suspension, in order to do complete justice to the petitioner. He further submits that the entire period during which the petitioner remained under suspension is liable to be treated as period spent on duty not only for the purposes of pension but also for all other benefits, maintaining continuity in service, which should also include seniority as also arrears of pay. Learned counsel for the petitioner further contended that during the period the petitioner remained under suspension, revised pay-scales under 6th Pay Commission's recommendation were also implemented, but the petitioner was deprived of the same on account of suspension. Therefore, the petitioner is also entitled to pay fixation in the revised 6th Pay Scale from due date and arrears of salary in that regard also. Further submission of learned counsel for the petitioner is that in any case, from the date of acquittal, the petitioner is entitled to reinstatement, because there was no justification to keep the petitioner under suspension after the petitioner was finally acquitted of the criminal charges by the order of the appellate Court passed on 7.11.2009 in Criminal Appeal No.463/2000. 4. On the other hand, learned counsel for the State submits that the petitioner is not entitled to more than what has already been granted to him vide order dated 10.3.2011 passed by the Collector. Learned counsel for the State contended that the petitioner had to be placed under suspension because he was arrested on the allegation of commission of heinous offence under Sections 363, 366, 376 (1) and 372 of the IPC. The suspension of the petitioner was necessitated not because of any departmental action, but because of initiation of criminal proceedings and arrest. Learned counsel for the State contended that the petitioner had to be placed under suspension because he was arrested on the allegation of commission of heinous offence under Sections 363, 366, 376 (1) and 372 of the IPC. The suspension of the petitioner was necessitated not because of any departmental action, but because of initiation of criminal proceedings and arrest. The petitioner was continued under suspension because he was facing trial and though the trail Court acquitted him of the charges under various sections, petitioner was convicted for commission of offence under Section 417 of the IPC vide order dated 14.8.1998. The petitioner was finally acquitted by the appellate Court only on 7.11.2009. Thereafter, the petitioner has been reinstated in service. He further submits that mere acquittal does not entitle the petitioner to grant of arrears of salary automatically. He further submits that the authority kept in view the circumstances in which the petitioner was arrested and subjected to trail for commission of heinous offence and further that the trial did end into conviction though only under Section 417 of the IPC. The petitioner was finally acquitted by the judgment of the appellate Court delivered on 7.11.2009. Therefore, he is not entitled to salary in respect of the period during which he remained under suspension. He further submits that the petitioner has been paid subsistence allowance in respect of the period of suspension. Therefore, what has been paid, has been found to be just and proper in the circumstances. The order passed by the Collector on 10.3.2011 shows that the suspension of the petitioner was revoked and the period of suspension has been counted for the purposes of pension. However, claim of payment of salary during the period of suspension has been rejected limiting it only to the subsistence allowance already paid to him. 5. The question, which arises for consideration, is whether the petitioner is entitled to claim regularization of the period of suspension in the manner that entire period of suspension should be treated as period spent on duty entitling the petitioner to full wages and benefits, had he continued to perform duties, but for suspension. This issue came up for consideration before the Supreme Court in the case of Greater Hyderabad Municipal Corporation Vs. M. Prabhakar Rao, (2011) 8 SCC 155 , wherein the Supreme Court held:- "15. This issue came up for consideration before the Supreme Court in the case of Greater Hyderabad Municipal Corporation Vs. M. Prabhakar Rao, (2011) 8 SCC 155 , wherein the Supreme Court held:- "15. Sub-rule (3) of FR 54-B does not state that in case of acquittal in criminal proceedings the employee is entitled to his salary and allowances for the period of suspension. Sub-rule (3) of FR 54-B also does not state that in such case of acquittal the employee would be entitled to his salary and allowances for the period of suspension unless the charge of misconduct against him is proved in the disciplinary proceedings. Sub-rule (3) of FR 54-B vests power in the competent authority to order that the employee will be paid the full pay and allowances for the period of suspension if it is of the opinion that the suspension of the employee was wholly unjustified. Hence, even where the employee is acquitted of the charges in the criminal trial for lack of evidence or otherwise, it is for the competent authority to form its opinion whether the suspension of the employee was wholly unjustified and so long as such opinion of the competent authority was a possible view in the facts and circumstances of the case and on the materials before it, such opinion of the competent authority would not be interfered with by the Tribunal or the Court." Therefore, all that can be said is that once a criminal case ended in acquittal, the employer is obliged under the law to take appropriate decision as to whether suspension of the employee was wholly unjustified and for that purpose, the authorities are required to apply its mind to the relevant facts and circumstances of the given case while exercising discretion in the matter. It cannot be accepted as a proposition of law as has been submitted by learned counsel for the petitioner, that invariably, in all cases of acquittal, employee would be entitled to regularization of the period of suspension only in a particular manner entitling him for all consequential benefits and full wages as also treatment of the period as duty for all purposes. The ratio of the aforesaid judgment of the Supreme Court is clear and it is for the authority to take appropriate decision with regard to period of suspension. The ratio of the aforesaid judgment of the Supreme Court is clear and it is for the authority to take appropriate decision with regard to period of suspension. Thus, what logically follows from the judgment of the Supreme Court is that the employer has to take decision one way or the other regularizing the period of suspension, after due application of mind to the facts and circumstances of the case and relevant consideration as to whether suspension was wholly unjustified. 6. As far as claim of reinstatement with effect from the date of acquittal is concerned, there is considerable force and merit in the submission of learned counsel for the petitioner. Learned counsel for the State could not bring to the notice of this Court any provision contained either in Rule 9 of the Civil Services (Classification, Control and Appeal), Rules, 1966 (for Short "the Rules of 1966") or Rule 54-A and 54-B of the Fundamental Rules, enabling the State Govt. to continue suspension, even after acquittal. The power of suspension is conferred on the authority within the four-corners of the provision contained in Rule 9 of the Rules of 1966 read with Rule 54-A and 54-B of the Fundamental Rules. Therefore, the power of suspension has to be exercised consistent with the statutory scheme and not beyond such provisions. The circumstances, in which, a government servant could be placed under suspension or deemed to have been placed under suspension have been exhaustively enumerated in Rule 9 of the Rules of 1966. In cases relating to allegations of criminal offence, Rule 9(1)(b) of the Rules of 1966 enables the appointing authority to place a government servant under suspension, where a case against him, in respect of any criminal offence, is under investigation or enquiry or trial. Under sub rule (2) of Rule 9 of the Rules of 1966, a government servant shall be deemed to have been placed under suspension by an order of appointing authority in circumstances enumerated in clause (a) & (b). Sub Rule (3) & Sub Rule (4) further provide for continuance of suspension by deeming fiction in certain circumstances. None of these circumstances remained available to the State to continue the petitioner under suspension after his acquittal. 7. Sub Rule (3) & Sub Rule (4) further provide for continuance of suspension by deeming fiction in certain circumstances. None of these circumstances remained available to the State to continue the petitioner under suspension after his acquittal. 7. Therefore, in the considered opinion of this Court, in the absence of there being any specific provision allowing suspension to continue after acquittal and in the absence of there being any charge sheet issued to the petitioner on any of the allegation of misconduct, the petitioner is clearly entitled to reinstatement from date of acquittal. In the case of Union of India and Ors. Vs. Jaipal Singh, (2004) 1 SCC 121 , the Supreme Court held that upon acquittal, employee is entitled to be reinstated and paid back wages from the date of acquittal. It was also held that the period will also be counted as period of service without any break. There was specific direction for reinstatement as would be clear from following: "5. The respondent will be entitled to back wages from the date of acquittal and except for the purpose of denying the respondent actual payment of back wages, that period also will be counted as period of service, without any break. The reinstatement, if not already done, in terms of the order of the High Court will be done within thirty days from today." 8. Therefore, in view of the above enunciation of law, it has to be held that the petitioner was entitled to be reinstated in service and the order of suspension was liable to be revoked with effect from the date of acquittal from criminal charges entitling the petitioner to payment of full back wages from the date of acquittal. However, in respect of the period prior to acquittal i.e. prior to 7.11.2009, the petitioner is not entitled to full salary only on the ground that criminal proceedings ended in his acquittal. In the circumstances, the respondents authority have limited monetary benefits only to the extent of subsistence allowance already paid to the petitioner. Therefore, it is not a case where during the suspension period, nothing was paid to the petitioner. This Court can take judicial notice of the statutory provision contained in the Rules of 1966 regarding payment of subsistence allowance whereunder after a particular period, the subsistence allowance which is 50% of the salary is further enhanced up to 75%. Therefore, it is not a case where during the suspension period, nothing was paid to the petitioner. This Court can take judicial notice of the statutory provision contained in the Rules of 1966 regarding payment of subsistence allowance whereunder after a particular period, the subsistence allowance which is 50% of the salary is further enhanced up to 75%. Therefore, though the petitioner was not getting full salary, he must be getting substantial part of salary as subsistence allowance all through during the period he was under suspension till he was acquitted of all the charges. It is relevant to note that the trial Court convicted the petitioner for commission of offence under Section 417 of the IPC though acquitted him of all other charges. It was only by virtue of order passed in appeal on 7.11.2009 that the petitioner was acquitted of charges under Section 417 also. Thus, the petitioner was acquitted of all the criminal charges only w.e.f. 7.11.2009. 9. The respondents have already included the period of suspension for the purpose of pension. Looking to the fact that the petitioner was acquitted of all the charges, the respondents should have treated entire period of suspension as duty for all purposes except for payment of any actual benefit. In other words, notional benefits should have been extended to the petitioner on account of his acquittal. 10. In the result, the petition is partly allowed. The period of suspension shall be treated as period spent on duty, but the petitioner would not be entitled to salary and it would be limited only to what has already been paid to him as subsistence allowance. As a consequence of treating the period as duty, he will be entitled to notional fixation of pay in the revised pay scale. The petitioner shall also be entitled to notional seniority. On account of acquittal of the petitioner w.e.f. 7.11.2009 when the appellate Court finally acquitted the petitioner from the charges under Section 417 of the IPC also, the petitioner would be entitled to reinstatement from that date i.e. 7.11.2009. However, the salary shall be payable to the petitioner only from the date he submitted application for joining with information regarding his acquittal by the appellate Court. The period from the date of acquittal shall be treated as period spent on duty for all purposes. Petition Partly Allowed.