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2024 DIGILAW 791 (AP)

M. Bullaiah v. State of A. P.

2024-07-19

SUMATHI JAGADAM

body2024
JUDGMENT : SUMATHI JAGADAM, J. 1. This writ petition is filed to declare Memo No. 6841/Vig-I/A2/2009-23, dated 25.03.2021, issued by the 1st respondent treating the suspension period of the petitioner as ‘not on duty’ as illegal and arbitrary and, consequently, to direct the respondents to regularize the suspension period of the petitioner from 23.03.2009 to 20.04.2010 as ‘on duty’ with full pay and other allowances in terms of the proviso of sub-rule (5) of Rule 54-B of the Fundamental Rules. 2. Petitioner was appointed as Assistant Executive Engineer vide proceedings No. RC/ENC/D.4/48687/85-390 dated 21.12.1985 issued by the Engineer-in-Chief, AW, Hyderabad, and he reported to duty on 23.01.1986. Subsequently, he was promoted to the post of Deputy Executive Engineer and later retired from service on attaining the age of superannuation on 30.06.2021. 3. While the petitioner was working as Deputy Executive Engineer, Special Minor Irrigation Division, Polavaram, West Godavari District, ACB trap was registered against him. The petitioner was arrested on 23.03.2009 and kept under suspension. The petitioner was reinstated into service vide G.O.Rt. No. 312, I&CAD [IW: Services-VI(I)] Department, 20.03.2010, without prejudice to the ACB case/disciplinary case pending against him. The 1st respondent, vide G.O.Rt. No. 311, Irrigation & CAD [Services-VI(I)] Department, dated 20.03.2010, issued articles of charges. Petitioner submitted his written statement of defence with a request to drop the charges on sympathetic grounds. On 17.03.2011, the Inquiry Officer submitted his report holding that charges are proved. The 1st respondent, vide G.O.Rt. No. 23, Irrigation & CAD [IW: Services-VI(I)] Department, dated 14.02.2012, has imposed punishment of stoppage of two increments with cumulative effect subject to review on the outcome of criminal proceedings. 4. Questioning the proceedings issued by the 1st respondent, the petitioner has preferred a review petition. The 1st respondent, vide G.O.Rt. No. 836, Irrigation & CAD [IW: Services-VI(I)] Department, dated 26.07.2012, modified the earlier orders issued in G.O.Ms. No. 23, dated 14.02.2012, by altering the punishment of stoppage of two annual grade increments with cumulative effect into minor penalty of withholding of two annual grade increments without cumulative effect. 5. The 1st respondent, vide G.O.Rt. No. 836, Irrigation & CAD [IW: Services-VI(I)] Department, dated 26.07.2012, modified the earlier orders issued in G.O.Ms. No. 23, dated 14.02.2012, by altering the punishment of stoppage of two annual grade increments with cumulative effect into minor penalty of withholding of two annual grade increments without cumulative effect. 5. On acquittal in C.C. No. 46 of 2018, dated 28.10.2019, on the file of the Special Judge for Trial of SPE & ACB cases, Rajahmahendravaram, the petitioner made a representation dated 09.01.2020 to the 1st respondent seeking to regularize his suspension period, i.e. from 23.03.2009 to 24.04.2010 as on duty, in accordance with FR 54-B (5) by enclosing a copy of the judgment as he is entitled to full arrears of salary for the suspension period and also entitled for pensionary benefits and revised retiral benefits. The 1st respondent, without considering his representation, has issued the impugned proceedings dated 25.03.2021. Questioning the said proceedings, the present writ petition is filed. 6. Heard, Sri Ramalingeswara Rao Kocherlakota, learned counsel for the petitioner, and Sri V.K. Naidu, learned Government pleader for Services III, appearing for the respondents. 7. The petitioner contends that after acquittal in C.C. No. 46 of 2018, he made a representation to the 1st respondent to treat the suspension period from 23.03.2009 to 20.04.2010 as on duty by enclosing the judgment in C.C. No. 46 of 2018. The 1st respondent being the competent authority without deciding the eligibility, has rejected the case of the petitioner and treated the gap period as ‘not on duty’ by referring to the provision under FR.54-B (5) and (7). 8. On the other hand, learned Government Pleader for services-III opposed the contentions of the petitioner and would submit that the ACB authorities have preferred an appeal before the Hon’ble High Court vide Crl. Appeal (SR) No. 1445 of 2021, which is pending before this Court for adjudication, and the Government has already modified the major penalty of stoppage of two increments with cumulative effect into a minor penalty of withholding of two annual grade increments without cumulative effect and the petitioner will not be entitled to full pay and allowances to which he would have been entitled had he not been suspended and as such, the writ petition deserves to be dismissed. 9. 9. The point that fell for consideration before this Court is, whether or not the petitioner’s service can be regulated as on duty on acquittal from the criminal case? 10. The undisputed facts that emerge from the pleadings and contentions of both parties are that the petitioner was placed under suspension with effect from 23.03.2009 and was reinstated into service on 20.03.2010. The petitioner was further promoted as Deputy Executive Engineer and was allowed to retire from service on attaining the age of superannuation, i.e. on 30.06.2021. The ACB authorities arrested the petitioner. The petitioner was honourably acquitted from the jurisdictional criminal Court on 28.10.2019, thereafter, he made a representation to regulate the suspension period as on duty with full pay and other allowances in terms of sub-rule 5 of F.R. 54-B. The 1st respondent, without considering the judgment of acquittal passed by the jurisdictional criminal court, has confirmed the punishment orders issued in G.O.Ms. No. 836 dated 26.07.2012 and thereby issued the impugned memo by treating the suspension period as not on duty. 11. When the departmental proceedings ended with the imposition of a minor penalty, the suspension was unjustified in terms of F.R.54 and the petitioner was entitled to full pay and allowances for the suspension period. The suspension order must be invoked in cases where the delinquent faces grave charges. Where such grave charges do not exist, the suspension itself would be without jurisdiction, and the entire period of suspension should be treated as on duty for all purposes, including pay and allowance. 12. When a Government servant under suspension is reinstated, the authority ordering the reinstatement shall make a specific order after the conclusion of proceedings whether or not the period of suspension shall be treated as a period spent on duty, and the pay and allowances to be paid to the government servant. After reinstatement into service, the petitioner was promoted to Deputy Executive Engineer and worked for more than ten years, except for the trap case in which he was acquitted. Petitioner has an unblemished track record. The authorities, without appreciating the judgment passed in criminal case, have issued impugned Memo No. 6841/Vig-I/A2/2009-23, dated 25.03.2021, treating the period of suspension as not on duty. 13. When the petitioner was imposed with a minor penalty, the department should treat the period of suspension as on duty. Petitioner has an unblemished track record. The authorities, without appreciating the judgment passed in criminal case, have issued impugned Memo No. 6841/Vig-I/A2/2009-23, dated 25.03.2021, treating the period of suspension as not on duty. 13. When the petitioner was imposed with a minor penalty, the department should treat the period of suspension as on duty. Thus, the petitioner is entitled to full pay and allowances for the period of suspension except for the period, if any, for which he is considered to be responsible for the delay in termination of the proceedings instituted against him, the payment for which shall be decided as per sub-rule (3) of F.R. 54-B, as the disciplinary proceedings against him finally resulted in the imposition of a minor penalty. As per sub-rule 4 of F.R.54-B, the period of suspension is to be treated as a period spent on duty for all purposes. 14. With regard to the claim for the period of suspension for pay and allowance, it is necessary to refer to F.R.54-B, which reads as follows: “(1) When a Government servant who has been suspended is reinstated or would have been so reinstated but for his retirement while under suspension, the authority competent to order reinstatement shall consider and make specific order: (a) regarding the pay and allowances to be paid to the Government servant for the period of suspension ending with reinstatement or the date of his retirement on superannuation, as the case may be. (b) whether or not the said period shall be treated as a period spent on duty. (2) Notwithstanding anything contained in Rule 53, where a Government servant under suspension dies before the disciplinary or Court proceedings instituted against him are concluded, the period between the date of suspension and the date of death shall be treated as duty for all purposes and his family shall be paid the full pay and allowances for that period to which he would have been entitled had he not been suspended, subject to adjustment in respect of subsistence allowance already paid. (3) Where the authority competent to order reinstatement is of the opinion that the suspension was wholly unjustified, the Government servant shall subject to the provisions of sub-rule (8), be paid the full pay and allowances to which he would have been entitled, had he not been suspended. (3) Where the authority competent to order reinstatement is of the opinion that the suspension was wholly unjustified, the Government servant shall subject to the provisions of sub-rule (8), be paid the full pay and allowances to which he would have been entitled, had he not been suspended. Provided that where such authority is of the opinion that the termination of the proceedings instituted against the Government servant had been delayed due to reasons directly attributable to the Government servant, it may after giving him an opportunity to make his representation [within sixty days from the date on which communication to this regard is served on him] and after considering the representation, if any submitted by him, direct for reasons to be recorded in writing that the Government servant shall be paid for the period of such delay [only such amount (not being the whole) of such pay and allowances as it may determine]. (4) In a case falling under sub-rule (3) the period of suspension shall be treated as a period spent on duty for all purposes. (5) In cases other than those falling under sub-rules (2) and (3) the pay and allowances payable to the Government servant for the period of suspension, shall be limited to the subsistence allowance already paid under F.R.53. (6) Where suspension is revoked pending finalization of the disciplinary or Court proceedings, any order passed under sub-rule (1) before the conclusion of the proceedings against the Government servant, shall be reviewed on its own motion after the conclusion of the proceedings by the authority mentioned in sub-rule (1), who shall make an order according to the provisions of sub-rule (3) or sub-rule (5) as the case may be. (7) In a case falling under sub-rule (5) the period of suspension shall not be treated as a period spent on duty. Provided that if the Government servant so desires, such authority may order that the period of suspension shall be converted into leave of any kind due and admissible to the Government servant. (8) The payment of allowances under sub-rule (2), sub-rule (3) or sub-rule (5) shall be subject to all other conditions under which such allowances are admissible.” 15. Provided that if the Government servant so desires, such authority may order that the period of suspension shall be converted into leave of any kind due and admissible to the Government servant. (8) The payment of allowances under sub-rule (2), sub-rule (3) or sub-rule (5) shall be subject to all other conditions under which such allowances are admissible.” 15. I have considered the rival submissions and I am of the view that the respondent authority is denuded from regulating the period of suspension in as much as the writ petitioner was kept under suspension with effect from 23.03.2009 and he was reinstated into service vide G.O.Rt. No. 312, I&CAD [IW: Services-VI(I)] Department, 20.03.2010 and the 1st respondent vide G.O.Rt. No. 836 dated 26.07.2012 modified the punishment into the minor penalty of withholding of two annual grade increments without cumulative effect, and hence, the respondent authorities have left over the matter from regulating the aforesaid period from the date of issuance of G.O.Ms. No. 23 i.e. 14.02.2012. 16. I am of the considered view that FR.54-B (1) mandates the competent authority to make a specific order regarding the pay and allowances while ordering reinstatement and the requirement of such an order to be passed in mandatory as the word used is shall in sub-rule (1) of Rule 54.B. While it is to be pointed out, the said sub-rule (1) makes no express mention out of the time imperative within which the order is passed, the requirement for making such an order is clearly indicated from its tenor. The view being taken by me is supported by the Division Bench of the High Court of Judicature at Hyderabad in the unreported decision in W.P. No. 12212 of 2018, wherein the facts and circumstances are similar in as much as in the said case also the aggrieved public servant has suffered a minor penalty as well as acquitted in the criminal case, as can be seen from the facts and circumstances and the ratio laid down in the aforesaid judgment is clear and categorical that the decision regarding reinstatement of a government servant and the decision to pay or not to pay is full pay and allowances for the period he remained under suspension are part of the same integrated process and any event the gap between the two decisions should not be unreasonable long. 17. 17. Rebutting back to the facts of the present case, the disciplinary proceedings ended with a minor penalty as long as it was in 2010. The respondent has slept over the matter from regulating the interregnum period and issued the impugned proceeding after a period of more than ten years. The acquittal in C.C. No. 46 of 2018 dated 28.10.2019 on the file of the Special Judge for Trial of SPE & ACB cases, Rajahmahendravaram, cannot be an excuse for taking a decision as mandated under FR.54-B(1). 18. It is also relevant to point out that the Hon’ble Division Bench has also referred to the decision of the Hon’ble Apex Court in Vijay Kumar Agarwal Vs. Union of India, 2015 (17) SCC 625 wherein it was held while interpreting FR.54-B, the legal position was enunciated that if, while revoking the suspension or within a reasonable time thereof, no order is passed pertaining to pay and allowances for a period of suspension, the authority is denuded from passing such an order leading to the consequence that government servant in such a situation is entitled to full salary for the period he remained under suspension and the relevant para is extracted hereunder: “The High Court while dealing with this writ petition took the view that in case order revoking the suspension did not deal with the suspension period or payment of the salary for suspension period, order revoking suspension cannot be treated as void or non est. The only effect thereof would be that the competent authority is precluded from exercising its power under F.R.54-B and the legal position was that if while revoking the suspension or within a reasonable time thereof no order is passed pertaining to pay and allowances for the period of suspension, the authority is denuded from passing such an order. The necessary consequences thereof would be that the Government servant, in such a situation, is entitled to full salary for the period he remained under suspension. The necessary consequences thereof would be that the Government servant, in such a situation, is entitled to full salary for the period he remained under suspension. Therefore, High Court held that the petitioner was entitled to full pay and allowances for the period he remained under suspension and in the present case, the Supreme Court had already passed the order for grant of full salary for the period May 01, 1988 to May 13, 1996 and this amount had also been received by the petitioner though initially he had refused to accept the same when it was tendered to him in the Court. Moreover, the State of Maharashtra had not revoked the suspension on its own but to facilitate petitioner's inter-cadre transfer from Maharashtra cadre to Punjab cadre and, therefore, the order of revocation of suspension was not in exercise of power to revoke the suspension on the ground that the petitioner was no longer required to kept under suspension and these peculiar circumstances were not kept in mind by the Tribunal. According to us, the aforesaid approach of the High Court, under the given circumstances, is without blemish. The High Court has relied upon certain judgments of this Court including the decision in the case of Basant Ram Jaiswal v. Area Manager (North) MTNL Bombay, 2015 (17) SCC 625 which held that in such a situation, the competent authority cannot exercise the power under FR 54B.” 19. In view of the aforesaid, the Writ Petition deserves to be allowed, and accordingly, it is allowed, and the impugned Memo No. 6841/Vig-I/A2/2009-23, dated 25.03.2021 is set aside and the respondents are directed to treat the suspension period of the petitioner from 23.03.2009 to 20.04.2010 as on duty with all consequential benefits including pay and allowance, and pass appropriate orders within a period of two (02) months from the date of the receipt of a copy of the order. No order as to costs. 20. As a sequel, miscellaneous petitions, if any, pending shall stand closed.