IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 26.04.2007
CORAM
THE HONOURABLE MR.JUSTICE DHARMARAO ELIPE
and
THE HONOURABLE MR.JUSTICE S.PALANIVELU
Writ Petition No.32046 of 2005
1. Union of India
Represented by The Chairman,
ORDNANCE FACTORY BOARD,
10 A, S.K. Bose Road,
Kolkatta 700 001.
2. The General Manager,
Ordnance Factory,
Tiruchirappalli 620016. ...Petitioners
Versus
1. R.P.Ramesh Murugan
2. Central Administrative Tribunal,
represented by its Registrar,
Chennai 600 014. ...Respondents
Writ Petition filed Under Article 226 of the
Constitution of India, to issue a writ of certiorari,
calling for records relating to the second respondent's
order dated 26.04.2005 made in O.A.No.591 of 2004, on the
file of the Central Administrative Tribunal, Chennai Bench
and to quash the same.
For Petitioners : Mr.M.Vinayagamurthy
For Respondents : Mr.V.Parthiban for M/s.Paul and Paul
O R D E R
S.PALANIVELU.J.,
Aggrieved by the order of the Central Administrative
Tribunal, Madras Bench in O.A.No.591 of 2004, quashing the
order dated 19.04.2004 and directing the respondent’s
Management to treat the period of suspension during which
the applicant was under suspension, as spent on duty,
leaving the matter regarding the pay and allowances to the
discretion of the Management, this writ petition has been
preferred by the Management/petitioners herein.
2. Factual matrix of the mater is as under:
The first respondent herein is working as labourer
(unskilled) in the second petitioner factory. During 1997,
since he involved in a criminal Case, on 03.03.1997, he
was placed under Suspension, further ordering that he is
deemed to have been suspended with effect from the date of
detention i.e. from 17.2.1997 on the ground that he was
detained in police custody for more than 48 hours in respect
of criminal cases. After suspension, as the 1st
respondent/workman was involved in four more criminal cases,
his suspension was continued by virtue of the order of the
Management dated 20.09.1999 until further orders, till
termination of all criminal cases or any departmental
proceedings that may be initiated.
3. As the first respondent was acquitted in all the
Criminal Cases, the suspension was revoked by memos of an
order dated 05.03.2002 with the immediate effect and the
workman was directed to report for duty immediately. On
30.09.2002, the writ petitioners/Management issued a show
cause notice stating that since the first
respondent/workman was acquitted in all Criminal Cases on
benefit of doubt alone, which cannot be regarded as
honourable acquittal, the Deemed Suspension was wholly
justified and the period of suspension from 17.02.1997 to
05.03.2002 cannot be treated as period ‘spent on duty’.
Therefore, the workman was required to make representation
on that proposal within 15 days from the date of receipt of
the said proceedings.
4. On 12.10.2002, the first respondent/workman
submitted his representation contending that the Deemed
Suspension was passed on 05.03.2002 unconditionally and
hence he is entitled for full back wages during the period
of Deemed Suspension since he was found not guilty by
Criminal Courts, and in pursuance of the acquittal judgments
rendered by the Criminal Courts, the decision of the
Management was unjustified. He has reiterated his request,
in the said representation, requesting the Management to
treat the period of suspension as ‘spent on duty’.
5. Since there was no consideration of his
representation by the petitioners/Management, the first
respondent/workman forwarded reminders on 09.07.2003 and
24.09.2003. On 19.04.2004, the writ petitioner issued
impugned order, rejecting the request of the first
respondent and informing that the period of suspension from
17.02.1997 to 05.03.2002 will not be treated as ‘spent on
duty’ for any purposes and he was not eligible for any pay
and allowances other than subsistence allowance already
drawn by him for the said period. The request of the 1st
respondent/workman was turned down by the
petitioner/Management on the ground that the first
respondent was acquitted in criminal cases granting benefit
of doubt, which is not a hounourable acquittal by Criminal
Court.
6. The Central Administrative Tribunal, Madras Bench
allowed the Original Application filed by the first
respondent quashing the impugned order aforementioned,
against which the present writ petition came to be filed.
7. There were as many as five criminal cases
registered against the first respondent under various
Sections of I.P.C. The particulars of the said cases are as
follows:
======================================================================
Sl.No. Calendar Decision of Criminal Court
Case No.
======================================================================
1 314/1997 Prosecution side has failed to prove
the case against the accused
beyond all reasonable doubts and
thereby giving benefit of doubt,
the accused Shri Ramesh Murugan is
acquitted under Section 379 IPC.
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
2 315/1997 Prosecution side has failed to prove
the case against the accused
beyond all reasonable doubts and
thereby giving benefit of doubt,
the accused Shri Ramesh Murugan is
acquitted under Section 379 IPC.
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
3 61/97 Prosecution side has failed to prove
the case against the accused
beyond all reasonable doubts and
thereby giving benefit of doubt,
the accused Shri Ramesh Murugan is
acquitted under Section 379 IPC.
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
4 108/1998 Prosecution side has failed to prove
the case against the accused
beyond all reasonable doubts and
thereby giving benefit of doubt,
the accused Shri Ramesh Murugan is
acquitted under Sections 457 and 380
IPC.
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
5 109/1998 Prosecution side has failed to prove
the case against the accused
beyond all reasonable doubts and
thereby giving benefit of doubt,
the accused Shri Ramesh Murugan is
acquitted under Sections 457 and 380
IPC.
======================================================================
8. The learned counsel for the first respondent has
drawn the attention of this court to the provisions of
Fundamental Rules governing the service of the Government
employees. F.R.54-B(1) deals with the procedure to be
followed by the competent authority upon reinstatement of
any suspended employee which reads thus:-
F.R.54-B.(1) When a Government servant who
has been suspended is reinstated or would
have been so reinstated but for his
retirement (including premature retirement)
while under suspension, the authority
competent to order 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 suspension ending with
reinstatement nor the date of his retirement
(including premature retirement), as the case
may be: and
(b) Whether or not the said period shall
be treated as a period spent on duty.
( (2) omitted)
(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 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 attributed to the Government
servant, it may, after giving him an
opportunity to make his representation
within sixty days from the date on which the
communication in 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.
9. The Tribunal considered the above said rules and
came to the conclusion that the first respondent will not
be entitled for full pay and allowances according to those
rules. The Tribunal has referred FR-54-A in its order,
which provides that when dismissal or removal order of any
employee is set aside by the Court on merits of the case,
the Government servant becomes entitled to pay and
allowances and for treating the said period as duty for all
purposes. But F.R.54-A has no application in the case of
the first respondent.
10. The Tribunal referred Administrative
Instructions No.1(D) contained in the Ministry of Finance
O.M.No.15(8)-E.IV/57 dated 28.03.1959 which is retracted
in page No.245 of Swamy’s Compilation of Fundamental Rules
and Supplementary Rules 15th Edition, 2001.
“When a Government servant who is deemed to
be under suspension in the circumstances
mentioned in clause (a) or who is suspended
in the circumstances mentioned in Clause(b)
is reinstated without taking disciplinary
proceedings against him, his pay and
allowances for the period of suspension will
be regulated under FR 54-B, i.e., In the
event of his being acquitted of blame or
(if the proceedings taken against him was
for his arrest for debt) its being proved
that his liability arose from circumstances
beyond his control or the detention being
held by any competent authority to be wholly
unjustified, the case may be dealt with
under FR-B(3); otherwise it may be dealt
with under proviso to FR.54-B.”
(G.I., M.F., O.M.No.F.15(8), IV/57, dated
the 28th March, 1959, as amended),
11. The cumulative effect of the above said
Fundamental Rules and Administrative Instructions issued
by the Central Government would go to show that if the
disciplinary proceedings instituted against the Government
servant was delayed owing to the reasons directly
attributable to the Government servant, he is not entitled
for pay and allowances for the period during which he was
under suspension on account of pendency of criminal case
against him. It is further stated that the Management
should justify its decision in unequivocal terms,
regarding the circumstances under which the period of
suspension could not be treated as ‘spent on duty’.
12. As far as the Management is concerned the
impugned order dated 19.04.2004, throws light on the
subject. The first respondent was involved in a string of
criminal cases, five in number, during the relevant
period. During the pendency of those criminal cases he was
under suspension. He got acquittal in all the criminal
cases by extension of benefit of doubt that arose in
prosecution case, as observed by the Judicial Magistrate
Courts. No criminal case was registered or initiated
against him at the behest of the Management. Those cases
were out-come of police complaints against him. Hence,
the absence from service of the employee was not
attributable to the Management. The Management has
mentioned in their proceedings dated 30.09.2002 and
19.04.2004 that the acquittal obtained by the employee was
not a honourable one but was a result of grant of benefit
of doubt and hence his case could not be brought under
the purview of FR 54-B. In this context, for better
appreciation, we extract the operative portion of the
proceedings of Management, dated 19.04.2004 as follows:
“In view of the foregoing that the said
suspension was justified, and as per
existing Government instructions “where
the acquittal is not honourable and the
case is decided by giving benefit of
doubt” the suspension is justified and the
suspension/deemed suspension cannot be
treated as one spent on duty and in such
cases, the Government Employee shall be
allowed only such pay and allowances as
has been admitted to him.
Thus, the management has justified its decision for the
view taken by it for refusing the pay and allowances during
the period of suspension.
13. The arguments of the learned counsel for the
writ petitioner gained momentum while he referred to
decisions of Honourable Supreme Court directly on this
subject and he would submit that since the decision of the
Management is justifiable, except the subsistence allowance
paid during the suspension period, the employee was not at
all eligible for any other pay and allowances. For his
contention, he invited the attention of this Court to the
decision of Honourable Supreme Court in RANCHHODJI CHATURJI
THAKORE AND SUPERINTENDING ENGINEER, GUJARAT ELECTRICITY
BOARD, AND ANOTHER (1997(2) L.L.N.979) and important
portions therein have been culled out hereunder:
“The retirement of the petitioner
into the service has already been ordered by
the High Court. The only question is
whether he is entitled to back-wages? It was
his conduct of involving himself in the
crime that was taken into account for his
not being in service of the respondent.
Consequent upon his acquittal, he is
entitled to reinstatement for the reason
that his service was terminated on the basis
of the conviction by operation of the
proviso to the statutory rules applicable to
the situation. The question of back-wages
would be considered only if the respondents
have taken action by way of disciplinary
proceedings and the action was found to be
unsustainable in law and he was unlawfully
prevented from discharging the duties. In
that context, his conduct becomes relevant.
Each case requires to be considered in its
own backdrops. In this case, since the
petitioner had involved himself in a crime,
though he was later acquitted, he had
disabled himself from rendering service on
account of conviction and incarceration in
jail. Under these circumstances, the
petitioner is not entitled to payment of
back-wages.
As per the observations of the apex Court, in the
aforementioned decision, if the employee himself had
involved in a crime, where the Management had not played
any role, though he was later acquitted, since he had
disabled himself from rendering service on account of
conviction and incarceration in jail, he is not entitled for
any back wages.
14. In UNION OF INDIA AND OTHERS AND JAIPAL SINGH
(2004(1) L.L.N. 520), the above said decision has been
referred and it is held thus:-
“If prosecution, which ultimately resulted
in acquittal of the person concerned was
at the behest of or by the department
itself, perhaps different considerations
may arise. On the other hand, if as a
citizen the employee or a public servant
got involved in a criminal case and if
after initial conviction by the trial
Court, he gets acquittal on appeal
subsequently, the department cannot in any
manner be found fault with for having kept
him out of service, since the oliges a
persons convicted of an offence to be so
kept out and not to be retained in service.
Consequently, the reasons given in the
decision relied upon, for the appellants
are not only convincing but are in
consonance with reasonableness as well.
Though exception taken to that part of the
order directing reinstatement cannot be
sustained and the respondent has to be
reinstated in service, for the reasons that
the earlier discharge was on account of
those criminal proceedings and conviction
only, the appellants are well within their
rights to deny back wages to the
respondent for the period he was not in
service. The appellants cannot be made
liable to pay for the period for which they
could not avail of the services of the
respondent. The High Court, in our view,
committed a grave error, in allowing back
wages also, without adverting to all such
relevant aspects and considerations.
Consequently, the order of the High Court
in so far as it directed payment of back
wages is liable to be and is hereby set
aside.”
In both the decisions, the Supreme Court has held that if
the Management could not avail the services of the
employee on account of his deeds, by no stretch of
imagination, it could be stated that the management has
to pay the employee pay and allowances for the period of
suspension.
15. In this case, as adverted to supra, the first
respondent was implicated in the criminal cases by the
police complaints and after trial, in all those cases he
was acquitted by the Courts giving benefit of doubt. The
learned counsel for the first respondent in his argument
would say that it is the usual practice of the Judicial
Officers to mention in their judgments, if the result of
the case was one of acquittal, it is by means of extending
benefit of doubt. But his contention is far from
acceptance.
16. The learned counsel for the first respondent
placed reliance upon a decision of Honourable Supreme Court
in BRAHMA CHANDRA GUPTA -Vs- UNION OF INDIA (AIR 1984
SUPREME COURT PAGE 380), and contended that when the
employee got acquittal in a criminal case, he must be
made eligible to get the monetary benefits for the period
of suspension. The principles laid down in the said
decision are as follows:
“Keeping in view the facts of the case
that the appellant was never hauled up for
departmental enquiry, that he was
prosecuted and has been ultimately
acquitted and on being acquitted he was
reinstated and was paid full salary for
the period commencing from his acquittal
and further that even for the period in
question the concerned authority has not
held that the suspension was wholly
justified because 3/4th of the salary is
ordered to be paid, we are of the opinion
that the approach of the trial Court was
correct and unassailable. The learned
trial Judge on appreciation of facts
found that this is a case in which full
amount of salary should have been paid to
the appellant on his reinstatement for the
entire period. We accept that as the
correct approach.”
The facts discussed in the above said case are quite
distinguishable with those in this case. In the case
before the Supreme Court, the Management did not justify
its decision to place the employee under suspension in view
of pendency of criminal case and it had been paying 3/4th
of his salary during the period of suspension, thereafter
the employee initiated proceedings for remaining 1/4th his
salary for the said period, and finally the Supreme Court
recognised his rights to get the said amount. The Supreme
Court has candidly observed that the management has not
held the suspension justified because, 3/4th of the
salary was ordered to paid to the employee. Based on these
circumstances, the Supreme Court held that the employee
was entitled to get full back wages throughout. But, the
facts in this case are otherwise. The Management has held
the suspension was justified and subsistence allowance
alone was paid to the employee, but not any portion of
salary. Hence, the circumstances of this case stand on a
different footing.
17. Summarising all, as stated by the Management, the
suspension order passed by the Management was justified and
that the employee was not entitled to get any pay and
allowances during the period of suspension. The Central
Administrative Tribunal, on erroneous premise, has concluded
that after the acquittal in the Criminal cases, on
reinstatement, the employee is entitled for full backwages,
during the period of suspension. The said conclusion of the
Tribunal is not acceptable, which deserves to be set aside.
On the factual background, the employee has to be non-suited
for the relief. Legally also, he is not entitled for the
reliefs sought for.
18. In fine, the writ petition is allowed. The order
of the Central Administrative Tribunal in O.A.No.591 of 2004
dated 26.04.2005 is set aside. No costs.
rrg
To
1. Central Administrative Tribunal,
represented by its Registrar,
Chennai 600 014.