The High Court
Case Details
^vA^^ ^2"ls ^' k»*a' (o c . ^c . l<3^' IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR WRIT PETITION (Sl N0. ^> fc? ^ w / 2011 PETITIONER y/ Chhotelal Sahu, S/o Jhingal Ram Sahu, aged about 50 years; presently posted as Peon, Project Office, Block Development Office, Baikunthpur, District-Koriya (C.G.) VERSUS RESPONDENTS '!-> ........e .....•••-< .:.".....-"-' 1) State of Chhattisgarh, Through: The Secretary, Tribal & Scheduled Caste Development Department, D.K.S. Bhawan, Raipur (C.G.) 2) The Deputy Commissioner, Tribal & Scheduled Development Caste Department, D.K.S. Bhawan, Raipur 3) The Collector, District-Koriya (C.G.) 4) The Assistant Commissioner, Tribal Development, District-Koriya (C.G.) WRIT PETITION UNDER ARTICLE-226 OF THE CONSTITUTION OF INDIA ¥l. ^. l/ ^ HEGH COURT OF CHHATTISGARH : BILASPUR
Legal Reasoning
SB^: HON'BLE SHRI MANINDRA MOHAN SHRIVASTAVA. J. WritPetition (81 No.5656/2011 Petitioner Chhotelal Sahu Respondents State of Chhattisgarh and Ors. Versus '^ Appearance: Shri Ashish Surana, counsel for the petltioner. Shri Arun Sao, Govt. Advocate for the State. ORAL-ORDER (Passedon 20.6.2013) Heard. 1. By this petltion under Article 226 of the Constitution of india, the petltloner has assailed the correctness and validity of order dated 3.6.2011 (Annexure P-1) and order dated 10.3.2011 (Annexure P-2). Vide order though the suspension of the petitioner was revoked; dated 10.3.2011, petitioner's claim of salary has been rejected, ijmitlng only to subsistanoe allowance already paid to the petitioner, including the period of suspenslon for the purposes of pension. On a revision made to the Commissioner, order dated 10.3.2011 has been maintained. 2. The reievant facts of the case are jn narrow encompass. While working as a Peon, the petitioner was subjected to criminaj proceedings. F!R aiieging commission of offence under Sections 363,366, 376 (1) and 372 read with Section 511 of the IPC was registered, which !ed to his arrest. Vide order ^•: ^ '.f jl '%. 1 ^ -2- dated 10.9.1997, the petitioner was placed under suspension. The trial cuiminated in conviction for commission of offence under Section 417 IPG by which the petstioner was imposed fine of Rs.5,000/- and in defauit of payment of fine; R.l. for 3 months. The petitioner was acquitted of ail other charges under Sections 363, 366. 376 (1) and 372 of the IPC. Aggrieved by the judgment of convictlon and order of sentence passed by the trial Court, an appeal was preferred which was allowed vide order dated 7.11.2009, acquitting the petitioner of the charges under Section 417 of the !PG aiso. Soon thereafter, the petitioner submitted an appJicatlon on 18.11.2009 before the authority to revoke suspension and reinstate him on the post of Peon, 14.6.2010 (Annexure P-5), revoking his suspension. The petitioner then ctaimed that the period from 10.9.1997 to 14.6.2010 should not only be treated as period spent on duty, but it shouid also be considered for granting him arrears of pay-scaie and ali consequential benefits, including the period for the purpose of pension as weii. Vide order dated 10.3.201 1, the Collector, while ailowing the period to be counted for the purposes of pension, refused to grant arrears of salary, jimitlng it to the subsistence allowance already paid to the petitloner. On revision made to the Commissjoner, the order passed by the Collector was maintained. followed by coupie of reminders. Vide order dated the petitioner was reinstated, 3. Learned counsel for the petitioner argued that the petitioner was piaced on suspension on criminal charges and arrested also. The Court, however, acquitted the petitioner of all charges. Therefore, the suspension of the petitioner was wholly unjustified. He submits that because of false accusation, the petitioner remained under suspension and was deprived of full salary during the period of suspension. Therefore, once the very basis of suspension goes and the petitioner is acquitted of the charges, he is entitled to all consequential benefits which he would have enjoyed but for his suspension, in order to do compiete justice to the petitioner. He further ^.^y b' -3- submits that the entire period during which the petitioner remained under suspension is liabie to be treated as period spent on duty not only for the purposes of pension but aiso for all other beneflts, majntaining continuity sn service, which should also include seniority as aSso arrears of pay. Learned counsel for the petitioner further contended that during the period the petjtioner remajned under suspension, revised pay-scaSes under 6th Pay Commission's recommendation were also implemented,. but the petitioner was depnved of the same on account of suspension. Therefore, the petitioner is also entitled to pay fixaSlon jn the revised 6th Pay ScaSe from due date and arrears ofsatary in that regard aiso. Further submission of learned counsel for the petitioner is that in any case, from the date of acquittal, the petitioner is entitied to reinstatement, because there was no justification to keep the petitioner under suspension after the petitioner was finaliy acquitted of the criminal charges by the order of the appeliate Court passed on 7.11.2009 in Criminal Appeai No.463/2000. offence suspension of 4. On the other hand, learned counsel for the State submits that the petltioner is not entitled to more than what has already been granted to him vjde order dated 10.3.2011 passed by the Collector. Learned counsel for the State contended that the petitioner had to be placed under suspension because he was arrested on the ailegation of commission of heinous under Sections 363, 366, 376 (1) and 372 of the IPC. The the petitioner was necessitated not because of any departmental action, but because of initiation ofcriminal proceedings and arrest. The petitioner was continued under suspension because he was facing trial and though the trail Court acquitted him of the charges under various sections, petitioner was convicted for commission of offence under Section 417 of the IPC vide order dated 14.8.1998. The petltioner was finaliy acquitted by the appellate Court only on 7.11 .2009. Thereafter, the petitioner has been reinstated in service. He further submits that mere acquitta! does not entitle the petitioner to grant of arrears of salary ^:^,;.,^.^ -^•^. SiSh J>- .f- <~t/ ^•^'' .'>,^.^:- •'^ .< -4- the authority kept tn view the automatically. He further submits that circumstances in which the pet'rtjoner WQS arrested and subjected to trail for commission of heinous offence and further that the trial did end into conviction though only under Section 417 of the IPC. The petitioner was the appellate Court delivered on finally acqultted by the judgment of 7.11.2009. Therefore, he is not entitled to salary in respect of the period during which he remained under suspension. He further submits that the petitloner has been paid subsistence ailowance in respect of the period of suspension. Therefore, what has been paid; has been found to be just and in the circumstances. The order passed by the Cotlector on proper 10.3.2011 shows that the suspension of the petitioner was revoked and the period of suspension has been counted for the purposes of pension. However, claim of payment of satary during the period of suspenslon has been rejected iimiting it only to the subsistence allowance already paid to him. 5. The question, which arises for consideration, is whether the petit'ioner is entitled to clalm regularization of the period of suspension in the manner that entire period of suspension shouid be treated as period spent on duty entitJlng the petitioner to full wages and benefits, had he continued to perform duties, but for suspension. This issue came up for conslderation before the Supreme Court in the case of Greater Hyderabad Mfinicipal Corporaffon vs. M. Prabhakar Rao1 wheresn the Supreme Court held:- l<15, Sub-rule (3) of FR 54-B does not state that in in crimlnat proceedings the case of acquittal empioyee is entitled to his salary and allowances for the period of suspension. Sub-rule (3) of FR 54-B also does not state that in such case of acquittal the employee would be entitled to his salary and allowances for the period of suspension unless the '(2Q11)8SCC155 ^^ -5- charge of misconduct against him Es proved in the disciplinary proceedlngs. Sub-rule (3) of FR 54-B vests power in the competent authority to order that the employee wil! be paid the full pay andaltovtfances for the period of suspension if it Is of the opinion that employee was wholty the suspension of the unjustified. Hence, even where the employee is acquitted of the charges in the crimina! trial for tack of evidence or otherwise, it is for the competent authority to form jts opjnion whether the suspenslon of the employee was wholly unjustified and so long as such opinion of the competent authority was a possible view in the facts and drcumstances of the case and on the materials before it; such opinion of the competent authority would not be interfered with by the Tribunal or the Court." Therefore, al! that can be said is that once a criminal case ended in acquittal, the empjoyer is obliged under the law to take appropriate declslon as to whether suspension of the employee was whoSIy unjustified facts and circumstances of and for that purpose, the authorities are required to appty its mind to the relevant the given case while exerclsing discretjon in the matter. It cannot be accepted as a proposltion of taw as has been submltted by learned counsei for the petitioner, that invariably, sn al! cases of acquittal, employee would be entitled to reguiarization of the period of suspension only in a particuiar manner entitling hinn for all consequentia! benefits and fuli wages as also treatment of the period ss duty for ail purposes. The ratio of the aforesaid judgment of the Supreme Court is clear and It Is for the authority to take appropriate decision with regard to period of suspension. Thus, what iogically follows from the ./-^ •y ^ tll^. ^ \. ^^-^ ^ ^ -6- judgment of the Supreme Court is that the employer has to take declsion one way or the other regularizing the period of suspenslon, after due applicatson of mind to the facts and circumstances of the case and relevant consideration as to whether suspension was wholly unjustifled. 6. As far as claim of reinstatement with effect from the date of acquittal is Y there Is considerable force and merit In the submission of concerned, learned counsel for the petitioner. Learned counsel for the State could not bring to the notice of this Court any provision contained either in Rute 9 of the CiviS Services (Classification, Control and Appeal), Rules, 1966 (for short "ihe Rufes of 1966") or Rule 54-A and 54-B of the Fundamental Rules, enabling the State Govt. to continue suspension, even after acquittal. The power of suspension is conferred on the authority wlthin the four-corners of the provision contained in Rule 9 ofthe Rules of 1966 read with Rule 54-A and 54-B of the Fundamental Rules. Therefore, the power of suspension has to be exercised consistent with the statutory scheme in whteh,. a and not beyond such provisions. The circumstances, government servant could be placed under suspenslon or deemed to have been placed under suspension have been exhaustively enumerated In In cases relating to allegations of criminal Rule 9 of the Rules of 1966. offence, Rule 9(1 )(b) ofthe Rules of 1966 enables the appointing authority to place a government servant under suspension; where a case against him, in respect of any crimjnal offence, Ss under investigatjon or enquiry or trial. Under sub rule(2) of Rule 9 of the Rules of 1966, a govemment servant shall be deemed to have been placed under suspension by an order of appointing authority in circumstances enumerated in dause (a) & (b). Sub Rule (3) & Sub Rute (4) further provide for continuance of suspension by deeming fiction in certain circumstances. Noneofthese .-•^<^s ^SSSS^, .1:^^ '^•y s- ••^;ii-»sie/" ^ -7- circumstances remained available to the State to continue the petstioner under suspension after his acquittal. 7. Therefore, in the considered opinion of this Court, in the absence of there being any specific provjsion allowing suspension to continue after acquittal and in the absence of issued to the petitioner on any of the allegation of misconduct, the petitioner is clearly entitled to reinstatement from date of acquittat. In the case of Union of there being any charge sheet the Supreme Court held that upon India and Ors. Vs. Jajpal Sing2, acquittal, employee is entitled to be reinstated and paid back wages from the date of acquittal. It was also held that the period wiil also be counted as period of service without any break. There was specific direction for reinstatement as would be clear from following "5. The respondent will be entitled to back wages from for the purpose of the date of acquittal and except denying the respondent actual payment of back wages, that period also will be counted as period of service, if not already without any break. The reinstatement, done, in terms of the order of the High Court will be done within thirty days from today."
Decision
8. Therefore, in view of the above enunciation of taw, it has to be held that the petitioner was entftled to be reinstated in service and the order of suspension was liable to be revoked with effect from the date of acquittal from criminal charges entitling the petitioner to payment of full back wages from the date of acquittal. However, in respect of the period prior to i.e. prior to 7.11.2009, the petitioner is not entitted to fuil salary acquittal only on the ground that criminal proceedings ended in his acquittai. In the circumstances, the respondents authority have limited monetary benefrts only to the extent of subsistence allowance already paid to the petitioner. 2(2004) 1 SCC 121 •'^sm. ./''—^^ " v- f^ A'' ""iw% ^^ ^ .,, ^^^^G^' -8- it Therefore, is not a case where during the suspension period, nothing was paid to the petitioner. This Court can take judiciaj notice of the statutory provision contained jn the Ruies of 1966 regarding payment of the subsistence allowance whereunder after a partteular period, subslstence ailowance which is 50% of the salary is further enhanced up though the petitioner was not getting ful! sajaty, he to 75%. Therefore, must be getting substantiai part of saiary as subsistence aliowance al! through during the period he was under suspension till he was acquitted of to note that the trial Court convicted the all petitioner for commission of offence under Section 417 of the IPC though acquitted him of all other charges. It was only by virtue of order passed in appeal on 7.11.2009 that the petitioner was acquitted of charges under Section 417 also. Thus, the criminal the petitioner was acquitted of all the charges. is relevant It charges only w.e.f. 7.11.2009. the charges, 9. The respondents have already included the period of suspension for the purpose of pension. Looking to the fact that the petitioner was acquitted of the respondents should have treated entire perlod of all suspension as duty for all purposes except for payment of any actual benefit. In other words, notional benefits should have been extended to the petitioner on account of his acquittal. t 10. In the result, the petition is partly ailowed. The period of suspension shall be treated as period spent on duty, but the petitioner would not be entitled to salary and it would be limited only to what has already been paid to hlm as subsistence allowance. As a consequence of treating the period as duty, he will be entitled to notional fixation of pay in the revised pay scale. The petitioner shall also be entitled to notional seniority. On account of acquittal ofthe petitioner w.e.f. 7.11.2009 when the appellate Court finally acquitted the petitioner from the charges under Section 417 of the IPC also, the petitioner would be entitled to reinstatement from that date i.e. 7.11.2009. However, the salary shall be payable to the petitioner only from \ \ c( -9- the date he submitted application for joining with information regarding his acquittal by the appellate Court . The period from the date of acquittal shall be treated as period spent on duty for all purposes. ___ ManindraM.banSbriv.s.ava Judge ;:^ ';?..t. ^' -;...»• ^^ Praveen / -^