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2013 DIGILAW 285 (CHH)

NIRVANA KUMAR TIWARI v. STATE OF C. G.

2013-09-26

PRASHANT KUMAR MISHRA

body2013
ORAL ORDER 1. In this writ petition filed under Article 226 of the Constitution of India, petitioner has prayed for a direction to the respondents to grant him all consequential benefits arising out of his acquittal in the criminal case including payment of all his service/retiral claims. 2. Facts necessary for adjudication of the issues raised in the writ petition are that while working as Superintendent-cum-District Ayurvedic Officer in the Department of Public Health and Family Welfare, Government of Madhya Pradesh being posted at Durg, the petitioner was trapped for obtaining illegal gratification of Rs.3000/- out of the total demand of Rs.5000/- from complainant Ram Khilawan Mishra on 21.07.1997. Consequent to the said trap, the petitioner was prosecuted for committing offences under Sections 7, 13(1)(d) & Section 13(2) of the Prevention of Corruption Act, 1988. By order dated 13.02.1998, the petitioner was suspended under Rule 9 of the Chhattisgarh Civil Services (Classification, Control and Appeal) Rules, 1966 (in short "the Rules of 1966"). The criminal trial ultimately ended in his acquittal by judgment dated 07.04.1999 passed by Special Judge, Durg, in Special Case No. 1/1998 (Annexure P-5). Consequent upon his acquittal, the petitioner submitted representations filed collectively as Annexure P-6 for his reinstatement and payment of all the consequential benefits. In the meanwhile, the petitioner attained the age of superannuation on 30.06.2000, therefore, he was reinstated and superannuated from the said date vide Annexure P-2. 3. The Director, Indian System of Medicine and Homeopathy, Government of Madhya Pradesh allowed 75% pension as anticipatory pension. On his, representations, Director, Indian System of Medicine and Homeopathy, Chhattisgarh, informed his counter-part in the State of M.P., to take appropriate decision on his representations and his service book was sent to the Directorate at Bhopal. However, when his entire claims during suspension period and all other service, benefits/retiral dues remained unpaid, the present petition has been preferred seeking reliefs claimed as mentioned in Para 1 of this judgment/order. 4. Learned Counsel for the petitioner would submit that once the petitioner has been acquitted in the Criminal Trial, the respondents were under legal obligation to reinstate him with all consequential benefits as there was no legal impediment in granting service benefits admissible to the petitioner. 4. Learned Counsel for the petitioner would submit that once the petitioner has been acquitted in the Criminal Trial, the respondents were under legal obligation to reinstate him with all consequential benefits as there was no legal impediment in granting service benefits admissible to the petitioner. He would submit that in absence of any regular departmental enquiry, being constituted against the petitioner, the respondents ought to have settled all the service claims of the petitioner soon after his acquittal in criminal trial. 5. On the other hand, learned State Counsel as also learned counsel for Respondents 3 & 4 i.e., State of M.P., would justify the action of the respondents on submission that even though the petitioner has been acquitted in the criminal trial, he is not entitled to full back wages as if he was on duty during the entire period of suspension. They would submit that the decision with regard to regularization of his suspension period would depend upon consideration of the entire facts and circumstances of the case which may include limiting payment of wages to the extent he has been paid subsistence allowance because the petitioner has not worked during the period of suspension. 6. As far as petitioner's claim for regularization of the period of suspension is concerned, there is no specific provision contained either in Rule 9 of the Rules of 1966 or Rule 54-A & 54-B of the Fundamental Rules. In an identical fact situation, this aspect was considered by a Division Bench of this Court in the case of Jagdish Pandey Vs. State of Chhattigarh and Others (Writ Appeal No.89 of 2010, decided on 07-05-2010). In that case also, employee was acquitted from all the criminal charges. The State filed an appeal against the judgment of acquittal, but the period of suspension was not regularized on account of pendency of appeal against acquittal. The Divisional Bench of this Court, after examining the statutory provisions contained in Rule 9 of the Rules of 1966 as also the provisions contained in Fundamental Rule 54-A & 54-B, held that the Fundamental Rules 54-A and 54-B or any other provision do not throw light in the circumstances when a Government servant is acquitted from the criminal charges and an appeal against the acquittal is filed against the judgment of acquittal. It was also observed that the criminal case, which was under investigation or enquiry and thereafter filing of charge sheet and conducting trial, all had come to an end and the employee was acquitted and there was no, charge sheet or criminal investigation pending. On various considerations, it was held that non-regularization of the period of suspension upon acquittal, when no further investigation or trial is pending, was against the law. It was also held that the Rules of 1966 do not provide continuous suspension or keeping the matter pending regarding the period of suspension of the person, who has been acquitted. It was pe1d that it is binding on the State Government to consider the case of regularization of the period of suspension, after acquittal from the criminal charges and consequently consider other benefits arising out of such considerations including pension. 7. Therefore, what follows from the aforesaid decision is that once an employee is acquitted from the criminal charges, the employer and in the present case, the State Government/Respondents 3 & 4 are obliged under the law to take appropriate decision with regard to further continuance of suspension and regularization of the period of suspension. In fact, the case on hand is on much better footing because the State has not filed any appeal against the petitioner's acquittal in the criminal case. 8. The question, however, 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. "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 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 that 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 that 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 only on the ground that the employee had faced a criminal trial or that an appeal against acquittal is pending, the employer is not justified in keeping in abeyance the decision with regard to regularization of period of suspension and 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. 9. As far as grievance arising on account of non-reinstatement after acquittal is concerned, there is considerable force and merit in the submission of learned counsel for the petitioner. Learned State counsel could not bring to the notice of this Court any provision contained in either Rule 9 of the Rules of 1966 or in Fundamental Rules 54-A and 54-B enabling the State to continue suspension after acquittal. The power of suspension is conferred on the authority within the four comers of the provisions contained in Rule 9 of the Rules of 1966 read with Rule 54-A & Rule 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 Rules (3) & (4) further provide for continuance of suspension by deeming fiction in certain circumstances. None of these circumstances remained available to the Respondents to continue the petitioner under suspension after his acquittal. Sub Rules (3) & (4) further provide for continuance of suspension by deeming fiction in certain circumstances. None of these circumstances remained available to the Respondents to continue the petitioner under suspension after his acquittal. In the case of Jagdish Pandey (supra), the Division Bench of this Court clearly observed in para 9 of its order that the criminal offence, which was under investigation or trial and thereafter, filing of charge sheet and conducting trial, all have come to an end and upon acquittal, no challan of criminal trial or investigation is said to be pending. It has also been held by the Division Bench of this Court that the Fundamental Rules 54-A & 54-B or any other provision do not throw light in the circumstances when a government servant is acquitted from the criminal charges and an appeal against the acquittal has been filed against the judgment of acquittal, however, in the present case even an acquittal appeal is not pending. 10. Therefore, in the considered opinion of this Court, in the absence of there being any specific-provision, either allowing suspension to continue by deeming fiction upon filing of an appeal against acquittal or any other provision empowering government to place its employee under suspension, after acquittal, has no sanction of law. Therefore, the respondents were obliged to reinstate the petitioner in service immediately upon acquittal and had no authority under the law to continue the suspension, after his acquittal in the criminal trial. In the case of Union of India and others Vs. Jaipal Singh, (2004) 1 SCC 121 the Supreme Court held that upon acquittal, employee is entitled to be reinstated and paid backwages 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 observations:- 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. There was specific direction for reinstatement as would be clear from following observations:- 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," Therefore, in view of 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 from the date of acquittal from criminal charges entitling the petitioner to payment of back wages from the date of acquittal and further that the period, from the date of acquittal till the petitioner has attained the age of superannuation i.e. 30.06.2000, shall be reckoned as period of service without any break. 11. This Court shall now deal with the issue as to whether the respondents are justified in not finalizing the pension of the petitioner immediately after his superannuation. In the present case, there is no material in the return filed by the respondents State of Chhattisgarh that any appeal against acquittal has been preferred against the judgment passed by the Special Judge wherein the petitioner has been acquitted of the criminal charges. 12. On the date when the petitioner attained the age of superannuation on 30th June, 2000, the petitioner had already stood acquitted in the criminal trial on 07.04.1999. Learned counsel for the State as also learned counsel for Respondents 3 & 4 have not been able to point out any provision contained in Chhattisgarh Civil Services Pension Rules, 1976, (In short "the Rules of 1976") which confers power on the respondents to delay or defer finalization of pension on the ground that the employee was under suspension at the time of superannuation, therefore, his pension cannot be finalized. In absence of any specific power in this regard conferred expressly or impliedly on the Government under Rules 1976, it appears that such withholding of finalization of pension is grossly unjustified. In absence of any specific power in this regard conferred expressly or impliedly on the Government under Rules 1976, it appears that such withholding of finalization of pension is grossly unjustified. Moreover, the Government has not initiated any departmental enquiry against the petitioner and has not issued any order with respect to his status during the period when he remained under suspension and it is precisely for this reason, no order has been passed by the Government in terms of Rule 8 of the Rules 1976 regarding withholding or withdrawing pension or part thereof whether permanent or for a specified period on account of conviction for a serious crime or guilty of grave misconduct. Thus considered from any angle, the respondents have no authority or jurisdiction to pass any other order except to finalize the pension of the petitioner instead of making payment of anticipatory pension to him. 13. For the foregoing reasons, this writ petition is allowed in the following terms : (i) Respondents 3 & 4/State of M.P., shall take final decision with regard to regularization of period of suspension in accordance with law within a period of 3 months from the date of submission of the certified copy of this order by the petitioner; (ii) The petitioner is entitled to full backwages from the date of acquittal till the date of superannuation and the said period shall be counted as duty period for all the purposes; and (iii) The petitioner's pension shall be finalized within a period of 3 months from the date of submission of certified copy of this order before Respondent 3 & 4/State of M.P., and upon such finalization of pension, the entire arrears thereof including the retiral benefits like Gratuity, GPF, GIS, Leave Encashment etc., shall be paid within a period of two months along-with simple interest, at the rate of 6 per cent per annum. Petition Allowed.