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2017 DIGILAW 905 (JK)

Ravinder Singh Sambyal v. State

2017-10-03

TASHI RABSTAN

body2017
JUDGMENT : 1. Facts giving rise to the filing of this writ petition briefly stated are that the petitioner was initially appointed as Accounts Assistant in the month of June, 1984 and subsequently promoted as Assistant Accounts Officer on 14.06.2004. While discharging the duty as Assistant Accounts Officer, an FIR No.01/2004 for alleged commission of offences under Section 5(1) read with Section 5(2) Prevention of Corruption Act, 2006 and Section 161 RPC was registered against the petitioner by the Vigilance Organization, Jammu on 25.03.2004. The petitioner was accordingly placed under suspension by respondent No.2 vide Government Order No.260-Accounts of 2004 dated 14.06.2004. Accordingly, the petitioner remained attached in the Office of Principal, Northern Zonal Accountancy Training Institute, Jammu. The charge sheet under Section 173 CrPC was submitted before the Court of Special Judge Anti Corruption, Jammu and the petitioner faced the trial. The Trial Court vide Judgment dated 25.04.2011, whereby the petitioner earned acquittal from the charges 2. Petitioner filed representation dated 26.07.2011 requesting to reinstate and grant of promotion to the petitioner as Accounts Officer in view of his acquittal from the Trial Court. Non consideration of the representation of the petitioner, the petitioner filed SWP No.878/2012 seeking quashment of Order No.260-Accounts of 2004 dated 14.06.2004 whereby and whereunder the petitioner was placed under suspension and also seeking direction to the respondents to reinstate him along with arrears of the salary as well as promotion to Accounts Officer w.e.f. 28.01.2011, that is, date when person junior to the petitioner, namely, Ali Mohd Dar, Ali Mohd. Mir, Farooq Ahmed Shah and Sudesh Raj were promoted to the posts of Incharge, Accounts Officer from the posts of Assistant Accounts Officer. This Court in terms of order dated 19.04.2012, directed respondent No.2 to consider the petitioner?s case seeking reinstatement in service in view of his acquittal recorded by Special Judge Anti Corruption, Jammu. In compliance whereof, the respondents issued order for reinstatement of service of the petitioner dated 15.05.2012 prospectively. Being aggrieved of non granting of reinstatement with effect from 14.06.2004, the petitioner filed SWP No.3338/2014 whereby inter alia seeking: (a) Certiorari seeking to quash Govt. Order No.211-F of 2013 dated 27.09.2013, to the extent, it pertains to the promotion of respondents No.3 to 24 against the post of Junior Scale Accounts Officer; (b) Certiorari seeking to quash Govt. Being aggrieved of non granting of reinstatement with effect from 14.06.2004, the petitioner filed SWP No.3338/2014 whereby inter alia seeking: (a) Certiorari seeking to quash Govt. Order No.211-F of 2013 dated 27.09.2013, to the extent, it pertains to the promotion of respondents No.3 to 24 against the post of Junior Scale Accounts Officer; (b) Certiorari seeking to quash Govt. Order No.153-F of 2014 dated 26.06.2014 to the extent it pertains to the promotion of respondents No.25 to 59 against the post of Incharge Accounts Officer. (c) Certiorari, seeking to quash order No.302-Acctts of 2012 dated 15.05.2012 passed by respondent No.2, to the extent, the same defers the settlement of suspension period of the petitioner w.e.f. 14.06.2004 to 15.05.2012 after the disposal of the appeal filed by the State Govt. against the acquittal recorded by the Learned Special Judge Anticorruption, Jammu, vide Judgment dated 25.04.2011 and to the extent, the same denies retrospective reinstatement to the petitioner w.e.f.14.06.2004; (d) Mandamus, commanding and directing respondents to pass a formal order of reinstatement of the petitioner w.e.f. 14.06.2004 and also to pass a formal order to settling the period of suspension of the petitioner w.e.f.14.06.2004 to 15.05.2012 as on duty and to release all the consequential benefits i.e. arrears of salary w.e.f. 14.06.2004 to 15.05.2012 i.e. by releasing differential amount after the adjustment of the subsistence allowance received by the petitioner. (e) Mandamus, commanding and directing the respondents, more particularly respondent No.1 to promote the petitioner as Accounts Officer w.e.f. 01.03.2012 in the pay band-2 of 9300-34800 + grade pay of Rs.4800/- i.e. from the date, person junior to the petitioner namely respondent No.3 was promoted and to release the arrears of salary attached the post of Accounts Officer w.e.f.01.03.2012 till the petitioner is promoted against the post of Accounts Officer, inasmuch as, despite the clear acquittal of the petitioner, the petitioner was deliberately not considered for promotion and was denied right to discharge his duties against the post of Accounts Officer from the aforesaid date; (f) Any other writ, order or direction which this Hon?ble Court may deem fit or proper in the facts and circumstances of the case. 3. 3. However, at this stage, learned counsel for the petitioner stated at the Bar that he was under instructions not to press qua prayer (a) to (c) and (e) and also requested to dismiss the said prayers, though he will be confined only to the extent of the prayer i.e. seeking Mandamus, commanding the respondents to pass a formal order of reinstatement of the petitioner w.e.f. 14.06.2004 and also to pass a formal order to settling the period of suspension of the petitioner w.e.f.14.06.2004 to 15.05.2012 as on duty and to release all the consequential benefits including arrears of salary and also seeking promotions to the petitioner as Accounts Officer. His statement is taken on record. In view of the statement made by the petitioner at the bar, prayers (a) to (c) and (e) accordingly, dismissed. In view of dismissal of Prayers (a) to (c) and (e), Petitioner has no grievance against the private respondents. Accordingly, the writ petition with the consensus of the learned counsel for the parties is admitted at the admission stage and taken up for final consideration. 4. The contention of the petitioner is that once he had earned acquittal by the Trial Court in FIR No.01/2004 for offences under Section 5(1) read with Section 5(2) of Prevention of Corruption Act, 2006 vide judgment dated 25.04.2011, it is the duty of the official respondents to reinstate the him from the date of his suspension and also release the arrears/ salary and also the period of suspension is required to be settled as on duty. It is also averred by the petitioner that since the juniors to the petitioners during the pendency of the trial have been promoted to the higher post, the petitioner is also entitled to be promoted to the higher post with effect from the date when the juniors to the petitioner have been promoted. The petitioner in support of his arguments relied upon [1991] JKLR 171 titled Ab. Majid Khan v. State and Ors, Jagmohan Lal v. State of Punjab through Secy to Punjab Govt. Irrigation, reported in [1967] AIR (P&H) 422, Ab. Rashid Khan v. Director Libraries, Research And Museums, Srinagar & Anr. Reported in [1977] JKLR 225 and the judgment rendered by the Supreme Court in the case of Commissioner, Karnataka Housing Board v. C. Muddiaiah reported in 2007 AIR (SC) 3100. 5. Irrigation, reported in [1967] AIR (P&H) 422, Ab. Rashid Khan v. Director Libraries, Research And Museums, Srinagar & Anr. Reported in [1977] JKLR 225 and the judgment rendered by the Supreme Court in the case of Commissioner, Karnataka Housing Board v. C. Muddiaiah reported in 2007 AIR (SC) 3100. 5. Heard learned counsel for the parties and have perused the record. The petitioner?s contention is that since the Trial Court vide its judgment dated 25.04.2011 acquitted him in FIR No.01/2004 for offences under Section 5(1) read with Section 5(2) of Prevention of Corruption Act, 2006, he is required to be reinstated with effect from the date when he was placed under suspension and is also entitled for the monetary benefits as well and thus the respondents should have settled the suspension period to be treated as on duty. 6. Per contra, learned counsel for the State-respondents strenuously resisted, urging that the case of the petitioner for promotion as Accounts Officer was considered by the respondents but he could not be formally promoted because of the pendency of the appeal against the acquittal judgment dated 25.04.2011. It is averred that, however, the promotion case of the petitioner was kept in sealed covers in pursuance of Article 110-A of JK CSR. 7. It is not a case of the respondents that the petitioner is not eligible for promotions to the higher post along with his juniors and also it is not a case of the respondents that petitioner is entitled to reinstatement. Article 108-B of JK CSR for the facility of reference is reproduced herein below: 108-B. (i) When a Government servant who has been dismissed, removed, compulsorily retired before attaining the age of superannuation or suspended is reinstated the authority competent to order the reinstatement shall consider and make a specific order:- (a) Regarding the pay and allowance to be paid to such Government servant for the period of his absence from duty; and (b) Whether or not the said period shall be treated as a period spent on duty. (ii) Where the authority mentioned in sub-rule (i) is of opinion that the Government servant has been fully exonerated or in the case of suspension, that is was wholly unjustified the Government servant shall be given the full pay and allowances to which he would have been entitled had he not been dismissed removed, compulsorily retired before attaining the age of superannuation or suspended, as the case may be. The period of absence from the duty shall be treated as period spent on duty.” 8. What is graspable from above referred Article position is that once the government servant has been fully exonerated/ earned acquittal by the competent court of law, in such a situation, the government servant is entitled to reinstatement and also entitled to full pay and allowances and the period of absence/suspension shall be treated as period spent on duty. Similar issue has already been considered and dealt with by the Punjab and Haryana High Court in the case titled Jagmohan Lal v. State of Punjab through Secy to Punjab Govt. Irrigation, reported in [1967] AIR (P&H) 422, whereby it is held that mere filing of the acquittal appeal would not stand in the way of the reinstatement of the petitioner into the service. Also, the learned Single Judge of this Court in the case of [1991] JKLR 171 titled Ab. Majid Khan v. State and Ors observed in Paras 11, 12 and 13 which are reproduced herein below: “11. Mr. Gandhi has next referred Chapter X with particular reference to Article 107, 108-A, 108-B and 108-C of the Civil Services Regulations to urge that the respondents had the discretion to pass appropriate orders regarding the pay and allowances of the petitioners while passing the orders of their reinstatement. It is submitted that the opinion of the respondent authorities cannot be substituted by this Court. It is contended that where once the authority comes to the conclusion that a government servant has been reinstated and is not entitled to the pay and allowances, his opinion is binding upon the Court. It is submitted that the opinion of the respondent authorities cannot be substituted by this Court. It is contended that where once the authority comes to the conclusion that a government servant has been reinstated and is not entitled to the pay and allowances, his opinion is binding upon the Court. Article 108-B provides: (1) When a Government servant who has been dismissed, removed, compulsorily retired before attaining the age of superannuation, or suspended is reinstated the authority competent to order the reinstatement shall consider and make a specific order: (a) Regarding the pay and allowances to be paid to such Government servant for the period of his absence from duty; and (b) Whether or not the said period shall be treated as a period on duty. (II) Where the authority, mentioned in sub-rule (i) is of opinion that the Government servant has been fully exonerated in the case of suspension, that is was wholly unjustified the Government servant shall be given the pay and allowances to which he would have been entitled had he not been dismissed, removed, compulsorily retired before attaining before the age of superannuation or suspended, as the case may be. The period of absence from duty as period spent on duty.” 12. A perusal of the above provision shows that the Government is under an obligation to consider and make specific order regarding pay and allowances to be paid to such reinstated government servants for the period of his absence from duty and whether or not said period shall be treated as period spent on duty. The words, “shall consider” casts an obligation upon the respondent-State to consider judiciously and pass appropriate orders in consequences thereof. The orders contemplated under the aforesaid rule are considered to be the result of such consideration. Any order passed without such consideration is in negative to the mandatory provision of the aforesaid rule. In the instate case, the language of the orders does not show any consideration and the respondents have failed to produce any relevant record in proof of and to demonstrate such consideration. It is true that the respondents were not under an obligation to show consideration in the orders itself but could also prove such consideration from the relevant record. In the absence of consideration it cannot be said that the Government had exercised the option vested in it under Article 108-B of the CSR. It is true that the respondents were not under an obligation to show consideration in the orders itself but could also prove such consideration from the relevant record. In the absence of consideration it cannot be said that the Government had exercised the option vested in it under Article 108-B of the CSR. Withholding of the record speaks volumes and supports the contention as raised by the petitioners. The petitioners case, therefore, has not at all been considered in terms of Article 108-B of the CSR. 13. Sub-rule (ii) of Article 108-B provides that where the authority is of the opinion that the Government servant has been fully exonerated, such servant shall be given the full pay and allowances to which he would have been otherwise entitled had he not been dismissed, removed or compulsorily retired and the period of absence from duty shall be treated as a period spent on duty. In case of exoneration, of the allegations the authority has no option but to grant the salary and treat the period of absence from duty as period spent on duty. In the instant case services of the petitioners were terminated on the ground of their activities prejudiced to the interest of the State which was found to be incorrect and the respondents vide the orders reinstating the petitioners held, “The Government is satisfied that the said Shri (the petitioner) has remained involved in trade union activities and not with the activities prejudicial to the interest of the State” A perusal of para 6 of the aforesaid orders clearly suggests that the petitioners were exonerated of the charges on the basis of which they were dismissed from service. It is, therefore, held that the petitioners were reinstated after being exonerated of the charges on the basis of which they were removed and were entitled to the grant of pay etc in terms of sub-rule(ii) of Article 108-B of the CSR.” 9. The Supreme Court in the case of Commissioner, Karnataka Housing Board v. C. Muddiaiah reported in 2007 AIR (SC) 3100 in paragraph 32 of the judgment held as under: “32. The matter can be looked at from another angle also. It is true that while granting a relief in favour of a party, the Court must consider the relevant provisions of law and issue appropriate directions keeping in view such provisions. The matter can be looked at from another angle also. It is true that while granting a relief in favour of a party, the Court must consider the relevant provisions of law and issue appropriate directions keeping in view such provisions. There may, however, be cases where on the facts and in the circumstances, the Court may issue necessary directions in the larger interest of justice keeping in view the principles of justice, equity and good conscience. Take a case, where ex facie injustice has been meted out to an employee. In spite of the fact that he is entitled to certain benefits, they had not been given to him. His representations have been illegally and unjustifiably turned down. He finally approaches a Court of Law. The Court is convinced that gross injustice has been done to him and he was wrongfully, unfairly and with oblique motive deprived of those benefits. The Court, in the circumstances, directs the Authority to extend all benefits which he would have obtained had he not been illegally deprived of them. Is it open to the Authorities in such case to urge that as he has not worked (but held to be illegally deprived), he would not be granted the benefits? Upholding of such plea would amount to allowing a party to take undue advantage of his own wrong. It would perpetrate injustice rather than doing justice to the person wronged. We are conscious and mindful that even in absence of statutory provision, normal rule is „no work for non pay?. In appropriate cases, however, a Court of Law may, nay must, take into account all the facts in their entirety and pass an appropriate order in consonance with law. The Court, in a given case, may hold that the person was willing to work but was illegally and unlawfully not allowed to do so. The Court may in the circumstances, direct the Authority to grant him all benefits considering „as if he had worked?. It, therefore, cannot be contended an an absolute proposition of law that no direction of payment of consequential benefits can be granted by a Court of Law and if such directions are issued by a Court, the Authority can ignore them even if they had been finally confirmed by the Apex Court of the country (as has been done in the present case). The bald contention of the appellant-Board, therefore, has no substance and must be rejected.” 10. The case of the petitioner is that he faced the trial in FIR No.01/2004 for offences under Section 5(1) read with Section 5(2) of Prevention of Corruption Act, 2006 and after conducting the full trial by the Trial Court, vide judgment dated 25.04.2011, he earned acquittal for the offences as aforesaid. The respondents even otherwise also issued order dated 25.02.2012 whereby the petitioner has been reinstated, however, he was denied reinstatement with effect from the date of his suspension and also denied the allowances. Even the respondents have not decided with regard to the period of suspension. The respondents have admitted to the extent of promotions of the petitioner to the higher post by adopting the sealed cover procedure in terms of Article 110-A of JK CSR. In terms of provisions of Article 108-B of JK CSR, the authority competent to order the reinstatement shall consider and make a specific order, that is regarding the pay and allowances to be paid to such government servants for a period of absence from his duty and whether or not the said period shall be treated as a period spent on duty if the competent authority is of the formed opinion that the government servant has been fully exonerated or in the case of suspension then the government servant shall be given full pay and allowances to which he would have been entitled and the period of absence from duty shall be treated as period spent on duty. 11. The preferment of an appeal against an acquittal cannot be regarded as a continuance of the trial and cannot be treated to be pendency of judicial proceedings as the initial presumption of innocence gets re-enforced by the order of acquittal. I am of the opinion that after acquittal, which leads to an affirmation of the innocence of the accused, an appeal, as the case may be, being not a continuation of trial, will not amount to a pendency of judicial proceedings. Therefore, the petitioner cannot be deprived of the regularization of the suspension period, endlessly. Disposal of the appeal may take a long time. There is no certainty that the State would be satisfied, even if the appeal in the High Court fails. Therefore, the petitioner cannot be deprived of the regularization of the suspension period, endlessly. Disposal of the appeal may take a long time. There is no certainty that the State would be satisfied, even if the appeal in the High Court fails. If the State chooses to prefer a further appeal to the Hon?ble Supreme Court, the Deptt./State may again contend that the appeal is pending before the Apex Court. Thus, if the argument of the respondents is to be accepted, then there is no finality of the judgment of acquittal. Therefore, the contentions of respondents are unjustified and I am not inclined to accept the same. 12. In Ab. Rashid Khan v. Director Libraries, Research and Museums, Srinagar & Anr. reported in [1977] KLJ 371, whereby the Coordinate Bench of this Court has held as under: [“………. Now as soon as the trial has conducted and the petitioner has been acquitted, the result would be as that there is no longer any criminal case pending against him and also the competent authority has not proposed to embark upon any departmental enquiry against him he is entitled to be reinstated. Mere filing of acquittal appeal would not in my opinion stand in the way of his reinstatement”.] 13. In view of the backdrop discussed hereinabove and law laid down by Courts in the cases referred to above, the writ petition is, disposed of with the direction to the respondents to regularize the period of suspension of petitioner, from 14.06.2004 to 15.05.2012, as on duty with all consequential benefits, including the promotion notionally, on par with his immediate juniors. Let the respondents pass the consideration order within a period of two months from the date of receipt of a copy of this order. No costs. Both the writ petitions are accordingly, disposed of.