JUDGMENT
C.K. Thakker, J.
1. Rule. Mr. Bambhania, Additional Government Pleader, appears and waives service of Rule on behalf of the respondent. In the facts and circumstances of the case, the matter is taken up for final hearing today.
This petition is filed by the petitioner for an appropriate writ, direction or order, directing the respondent-Authority to treat period of suspension of the petitioner as on duty and to pay his salary and other benefits on that basis.
2. It is the case of the petitioner that he was appointed on August 2, 1978 as Watchman, Class IV, and was serving in District Court, Bhavnagar. In connection with an incident said to have taken place on 29th March, 1985, First Information Report was lodged against the petitioner, being C.R. No. 59 of 1985. It was for offences punishable under Section 394 read with Section 34 of the Indian Penal Code. It was the case of the prosecution that the petitioner, alongwith two other accused, had beaten complainant Bhikhabhai Bachubhai Vaghri and committed robbery. The petitioner was arrested and a trial was conducted. During the pendency of criminal prosecution, the petitioner was placed under suspension by an order dated May 14, 1985. After acquittal of the petitioner, however, he was reinstated.
3. The question then remained about the period of suspension. By the impugned order dated February 25, 1992, Annexure ‘D’ to the petition, the District Judge, Bhavnagar respondent herein, ordered the period of suspension to be treated as “extraordinary leave'”. The grievance of the petitioner is that in view of the fact that the petitioner was acquitted by a competent criminal Court, it was not open to the respondent to treat the period as “extraordinary leave”. He ought to have treated the petitioner as on duty, by granting his all consequential benefits, including payment of salary and other allowances.
4. Mr. A.D. Padival, learned Counsel for the petitioner, contended that when the petitioner was acquitted, obviously, an action of suspension of the petitioner from service ought to have been declared illegal, unlawful, invalid and of no effect whatsoever. Hence, it was incumbent on the part of the respondent to treat the period as on duty, because the petitioner was not allowed to work during the period of suspension. The respondent-Authority cannot now contend that the period shall not be treated as on duty. The petitioner cannot be deprived of salary and other consequential benefits. In this connection, reliance was placed on M. Gopalakrishna Naidu v. Stale of Madhya Pradesh AIR 1968 SC 240; Union of India v. Jayaram AIR 1960 Madras 625; R.V. Rathod v. State of Gujarat. 1971 LIC 923 (Gujarat), and a decision in Special Civil Application No. 1289 of 1995, decided by my learned Brother M.S. Parikh, J. on March 22, 1995. Mr. Padival contended that as held by the Division Bench of this Court in R.V. Rathod’s case (supra), there is nothing like benefit of doubt in a criminal trial. Either the accused is convicted or he is acquitted. If he is acquitted, consequences must follow. The Counsel submitted that as soon as the petitioner was acquitted by a competent criminal Court, it is not open to contend that for the purpose of suspension, the action was justified and hence, an employee will not be entitled to wages during the period of suspension.
5. Mr. Padival further argued that the order requires to be quashed and set aside also on the ground that the principles of natural justice and fair-play have not been complied with. He contended that before passing the impugned order and before ordering to treat that the period as “extraordinary leave”, no notice was issued, no explanation was sought, and no opportunity of hearing was afforded to the petitioner. The impugned order is thus violative of natural justice.
6. Mr. Bambhania, learned Additional Government Pleader, on the other hand, supported the order passed by the respondent. He submitted that there is a wide distinction between an order of acquittal in a criminal trial and an order as to how the period of suspension should be treated. It has nothing to do with the final outcome of a criminal trial. The same can be taken in accordance with the provisions of the Bombay Civil Services Rules, 1959 (hereinafter referred to as “the Rules”). Rule 152 of the Rules deals with such cases.
7. The question which requires to be considered is as to whether the impugned order is in consonance with the provisions of Rule 152 of the Rules. Rule 152 reads as under:
152. (1) When a Government servant who has been dismissed, removed 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 the 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.
(2) Where the authority mentioned in Sub-rule (1) is of opinion 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 allowances to which he would have been entitled had he not been dismissed, removed or suspended, as the case may be.
(3) In other cases, the Government servant shall be given such proportion of such pay and allowances as such competent authority may prescribe :
Provided that the payment of allowance under Clause (2) or (3) shall be subject to all other conditions under which such allowances are admissible.
(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 spent on duty unless such competent authority specifically directs that it shall be so treated for any specified purpose.
Sub-Rule (1) of Rule 152 of the B.C.S.R.s requires to make specific orders regarding the pay and allowances to be paid to the delinquent for the period of his absence from duty and whether or not the said period of absence from duty should be treated as the period spent on duty. During the period of suspension, the delinquent was absent from duty because he was suspended. Now, while passing the order contemplated by Sub-rule (1) of Rule 152 of the B.C.S.R.s, the consideration mentioned in Sub-rule (2) of Rule 152 should govern. Sub-rule (2) of Rule 152 B.C.S.R.s in so far as it relates to suspension says that where the authority mentioned in Sub-rule (1) is of the opinion that the suspension was wholly unjustified, the Government servant shall be given full pay and allowance to which he would have been entitled had he not been suspended. Thus, so far as the period of absence from duty of the delinquent is concerned, he would be required to be given full pay and allowances to which he would have been entitled had he not been suspended, if it is found that the suspension was wholly unjustified The pivotal question, therefore, would be whether in the facts and circumstances of the case, could it be said that the suspension of the delinquent was wholly unjustified.
8. According to Mr. Bambhania, the action of suspension of the petitioner was not “wholly unjustified”, and the petitioner cannot claim the intervening period as spent on duty. In any case, it is for the appropriate authority to decide the matter considering the facts and circumstances of the case. Therefore, after the acquittal by competent criminal Court, if the period was ordered to be treated as extraordinary leave, the petitioner cannot make any complaint or grievance against that order and on that count alone, the order cannot be quashed. He submitted that M. Gopalakrishna Naidu’s case (supra), instead of supporting the petitioner, supports the case of the respondent. He also relied upon a recent decision of the Supreme Court in Depot Manager, Andhra Pradesh State Road Transport Corporation v. V. Venkateswarulu . Considering the facts of the case, in the light of relevant Regulations, the Hon”ble Supreme Court observed that acquittal of charge and reinstatement does not ipso facto entitle an employee to get full salary for the period during which he remained under suspension. Full salary can be withheld on justifiable grounds. Since the order was not a speaking order, the Court set aside that order by issuing necessary directions.
9. In my view, the petition can be allowed only partly. The grievance of the petitioner is justified to a limited extent. Natural justice ought to have been complied with before passing the impugned order and before treating the period of suspension as “extraordinary leave”. But in my considered opinion, on acquittal being recorded, the petitioner will not ipso facto be entitled to be treated ‘as on duty’ and he cannot claim full salary and other benefits on being acquitted by a criminal Court. But no order prejudicially affecting the petitioner could be passed without hearing him as indicated in M. Gopalakrishna Naidu’s case (supra). The assertion of the petitioner is that before passing the impugned order, no opportunity of hearing was afforded to him. Hence, to that extent, the order becomes vulnerable and requires to be quashed and set aside.
10. Accordingly, the petition is partly allowed, the order at Annexure ‘D’ dated February 25, 1995, and all consequential orders and/or actions taken by the District Judge, Bhavnagar, respondent herein, are quashed and set aside, by directing him to afford opportunity of hearing to the petitioner and to pass an appropriate order, in the light of the observation of the Hon’ble Supreme Court in the decisions referred to hereinabove. Since the matter pertains to 1985, it is directed that the respondent will decide the same as expeditiously as possible, preferably within three months from the date of receipt of the writ of this judgment. Rule is made absolute accordingly to the above extent. No order as to costs.
Direct service is permitted.