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2014 DIGILAW 1087 (RAJ)

Prabhat Kadavat v. State of Rajasthan

2014-05-06

VINEET KOTHARI

body2014
ORDER BY THE COURT: 1. This writ petition has been filed by the petitioner who was working as a Civil Assistant Surgeon appointed as such on 4.11.1986. He was placed under suspension upon a criminal complaint filed against him under Section 7 and 13(1)(d) of the Prevention of Corruption Act, 1988. He faced the trial in the competent Court of learned Sessions Judge, ACD, Udaipur and was ultimately acquitted vide order Annex.2 dtd.10.12.2007 and, the said acquittal order was upheld by this Court while dismissing the leave to appeal No.62/2008 – State of Rajasthan Vs. dr. Prabhat Kadawat filed by the State Government on 31.3.3008 and even the Hon'ble Supreme Court dismissed the SLP No.5008/2009 filed by the State on 6.4.2009. These orders have been placed on the record. 2. The Appointing Authority thereafter passed the order Annex.5 dated 25.2.2008 reinstating the petitioner back in service revoking the suspension order dated 8.5.2002 and by another order, Annex.5 of the same date 25.2.2008 and Annex.6 dtd.13.5.2008 purportedly under Rule 54 of the Rajasthan Service Rules while treating the said period of absence during suspension period as continuity in service, the respondent -Dy. Secretary of the Department of Personnel however directed that the petitioner will not be entitled to any difference of full pay and salary for the said period. 3. Being aggrieved by the same, the petitioner filed this petition in this Court on 7.3.2011 and upon issuance of notices, the respondent – State have filed reply to the writ petition. 4. The learned counsel for the petitioner, Mr.Deelip Kawadia urged that there was no justification for the respondents to withhold the full salary and other allowances payable to the petitioner for the period of suspension, once the competent Court had acquitted the present petitioner from the said criminal charge against him even though giving the benefit of doubt as the other similarly situated persons by the same authority were given the benefit of full pay and allowances for the period of suspension upon the reinstatement, once they were acquitted by the competent Court. He submitted that in the writ petition an specific averment has been made with regard to one Meghraj Regar, Blocl Development Officer (Assistant Engineer, Irrigation) about full payment of salary and allowances upon acquittal. No reply or rebuttal of the same has been given by the respondent – State in its reply filed before this Court. He submitted that in the writ petition an specific averment has been made with regard to one Meghraj Regar, Blocl Development Officer (Assistant Engineer, Irrigation) about full payment of salary and allowances upon acquittal. No reply or rebuttal of the same has been given by the respondent – State in its reply filed before this Court. He produced before this court another order of one Bachchu Singh Meena, RAS working as Chief Executive Officer, Zila Parishad, Hanumangarh, who also was similarly acquitted by giving benefit of doubt by the competent Court and thereafter was paid full salary and allowances for the period of suspension upon his reinstatement. Mr. Deelip Kawadia therefore submitted that there was no justification for denying the similar benefit of the present petitioner, as no separate and specific reason has been assigned by the respondents in denying the full salary and allowances to the present petitioner. 4. On the other hand, learned Counsel for the respondents, Ms. Kusum Rao submitted that since there was no full exoneration of the present petitioner in the criminal trial in anticorruption matter, Rule 54(3) of the Rajasthan Service Rules permitted the competent Authority to give only the proportionate pay and allowances for the period of absence during suspension and therefore the impugned order cannot be faulted. However, the learned counsel for the respondents was unable to assign any cogent reasons for different treatment meted out to other similarly situated persons who were also acquitted in their respective criminal trial, giving them the benefit of doubt by the competent court. 5. I have heard the learned counsels at length and perused the record. 6. Rule 54 of the Rajasthan Service Rules relevant for the present purpose is quoted below for ready reference : “Rule 54. 5. I have heard the learned counsels at length and perused the record. 6. Rule 54 of the Rajasthan Service Rules relevant for the present purpose is quoted below for ready reference : “Rule 54. Reinstatement :(1) When a Government servant who has been dismissed, removed, compulsorily retired or suspended is reinstated or would have been reinstated but for his retirement on superannuation while under suspension, the authority competent to order the reinstatement shall consider and make a specific order : (a) regarding the pay and allowances to be paid to the Government servant for the period of his absence from duty or for the period of suspension ending with the date of his retirement on superannuation as the case may be; and (b) whether or not the said paid shall be treated as a period spent on duty (2) Where such competent authority holds 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 dearness allowance to which he would have been entitled had he not been dismissed, removed or compulsorily retired as a penalty or suspended, as the case may be. (3) In other cases, the Government servant shall be given such proportion of such pay and dearness allowance as such competent authority may prescribe. (4) In a case falling under clause (2) the period of absence from duty shall be treated as a period spent on duty for all purposes. (5) In a case falling under clause (3) the period of absence from duty shall not be treated as a period on duty unless such authority specifically directs that it shall be so treated for any specified purpose. Provided that if the Government so desires, such authority may direct that the period of absence from duty shall be converted into leave of any kind due and admissible to the Government servant. Note: The order of the competent authority regarding the treatment of the period of absence from duty passed under this proviso is absolute and no higher sanction would be necessary for the grant of extra-ordinary leave in excess of three months in so far as temporary Government servant are concerned. Note: The order of the competent authority regarding the treatment of the period of absence from duty passed under this proviso is absolute and no higher sanction would be necessary for the grant of extra-ordinary leave in excess of three months in so far as temporary Government servant are concerned. (6) In cases where punishment order does not indicate as to whether the suspension period is to be counted for the purpose of pension or not, the period of suspension shall be counted for the purpose of pension. In all other cases, action shall be taken as per punishment order. (7) Any payment made under this rule to a Government servant on his reinstatement shall be subject to adjustment of the amount, if any, earned by him through an employment, business, profession or vocation during the period between the date of removal, dismissal or compulsory retirement, as the case may be, and the date of reinstatement. Where the emoluments admissible under this rule are equal to or less than the amounts earned during the employment, business, profession or vocation elsewhere, nothing shall be paid to the Government servant.” 7. It is true that the competent Authority is entitled to pass appropriate orders upon such reinstatement once the dismissal/ removal or suspension order is set aside by competent Court or after the acquittal of the employee in the criminal trial and upon such reinstatement in service either full pay and allowances can be paid for the period of absence or part thereof, depending on the nature of exoneration by the competent Court but such different situations envisaged in Rule 54 (2) and 54(3) require passing of proper and speaking order by the competent authority and such authority is expected to assign the reasons for determining whether the case would fall under Section 54(2) or 54(3) of the said Rules. From the perusal of tenor of the impugned order, Annex.6 dtd.13.5.2008 in the present case, no such reasons can be inferred by this Court. The said order even does not say that since the petitioner has not been fully exonerated but has been acquitted only giving the benefit of doubt to him, therefore remaining part of the pay and allowances have been withheld by the competent authority. The said order even does not say that since the petitioner has not been fully exonerated but has been acquitted only giving the benefit of doubt to him, therefore remaining part of the pay and allowances have been withheld by the competent authority. The said order besides the factual context is virtually a one liner to the effect that no pay and allowance for the suspension period shall be payable to the petitioner except the subsistence allowance, which has already been paid to him during the period of suspension. Similarly the other two orders cited before this court in the case of Bachchu Singh Meena and Meghraj Regar also do not give any reason but for the reasons best known to the Authority passing these orders, the benefit of full pay and allowances has been given to those persons. Thus, while on the the same factual matrix where the Government servants were exonerated by the competent Court in their criminal trial giving them the benefit of the doubt, the aforesaid two cases of Bachchu Singh Meena and Meghraj Regar have been dealt with purportedly under Rule 54(2) of the RSR but the case of the petitioner was dealt with under section 54(3) of the RSR. The reason of difference are not however discernible from the said orders. 8. The orders passed under Rule 54 of the Rajasthan Service Rules by the appointing authority upon the contingency of reinstatement in service is definitely a quasi judicial order and therefore it has to meet the requirements of that, namely the same is required to be passed after giving an opportunity of hearing to the person concerned and secondly the said order should assign proper and cogent reasons for either giving full pay and allowance under Rule 54(2) or giving only proportionate pay and allowance under Rule 54(3) of the RSR. The three orders placed before this court in the present case prima facie indicates that the authorities passing such orders are either oblivious of the requirements of the said Rule or do not deliberately pass proper and reasoned orders and that results in discriminatory treatment meted out to persons, although they are similarly situated. 9. This Court is also of the view that there was no justification on the part of the respondent -Dy. 9. This Court is also of the view that there was no justification on the part of the respondent -Dy. Secretary of the Department of Personnel to treat the acquittal of the petitioner by the competent Court which order has been upheld by this Court and the Hon'ble Supreme Court giving him the benefit of doubt, as not amounting to full exoneration. On the other hand while dismissing the leave to appeal filed by the State, the coordinate Bench of this Court on 31.3.2008 in SB Criminal Leave to Appeal No.62/2008 – State of Rajasthan V/s Dr. Prabhat Kadawat clearly observed in the present case that the complainant had not supported the prosecution case and since no recovery has been made from the present petitioner nor any recovery was made from his conscious possession therefore, the acquittal was justified and even leave to appeal was not required to be granted to the State in the matter. The said order of the High Court was upheld by summary dismissal of SLP No.5008/2009 – State of Rajasthan Vs Dr. Prabhat Kadawat by the Hon'ble Supreme Court filed by the State. In these circumstances, the respondent – Dy. Secretary of the Department of Personnel without any valid rhyme or reason could not deny the payment of full salary and allowance to the petitioner, at least without assigning any proper and cogent reasons therefor. It is obvious that the impugned order Annex.6 was passed without giving any opportunity of hearing to the petitioner and it also does not contain any reason worth the name. The said order is, therefore, liable to be quashed and cannot be sustained. 10. This Court also feels concerned and anguished at the manner in which the higher and responsible authorities of the State who are expected to act in a more responsible manner, pass such orders without giving any reasons. Such a deplorable practice deserves to be strongly deprecated and exemplified by the imposition of personal costs on such officials. 11. 10. This Court also feels concerned and anguished at the manner in which the higher and responsible authorities of the State who are expected to act in a more responsible manner, pass such orders without giving any reasons. Such a deplorable practice deserves to be strongly deprecated and exemplified by the imposition of personal costs on such officials. 11. Accordingly this writ petition is allowed and the impugned order Annex.6 dtd.13.5.2008 to the extent it denies payment of full pay and allowances to the present petitioner is quashed and the respondents are directed to pay the difference of full pay and allowances after deduction of subsistence allowance already paid to the petitioner during suspension period with interest at the rate of 9% per annum from 13.5.2008 till the actual date of payment. The said payments will be made by the respondents within a period of 2 months from today. A copy of this order be sent to the parties concerned forthwith.