Madras High Court
S.Rajagopal vs The Registrar on 27 August, 2015
Bench: S.Manikumar, G.Chockalingam
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 27.08.2015
CORAM:
THE HON'BLE MR.JUSTICE S.MANIKUMAR
AND
THE HONOURABLE MR.JUSTICE G.CHOCKALINGAM
Writ Petition No.18949 of 2014
M.P.No.1 of 2014
S.Rajagopal ... Appellant
vs.
1. The Registrar,
Central Administrative Tribunal,
Chennai Bench,
High Court Compound, Madras.
2. The Executive Director (Finance)
(T&C/EP), Corporate Office,
2nd Floor, Bharat Sanchar Nigam Ltd.,
Head Quarters, Janpath, New Delhi.
3. The Chief General Manager,
Chennai Telephones,
No.78, Pursaiwalkkam High Road,
Chennai. ... Respondents
Writ Petition filed under Article 226 of the Constitution of India, praying for a Writ of Certiorarified Mandamus, to call for the records of the 1st respondent-Tribunal, dated 23.01.2013, made in O.A.No.1068/2010, quash the same, insofar as it denies the petitioner, his promotions, on par with his juniors, inspite of his acquittal in a criminal case and consequently, direct the respondents 2 and 3 to grant him promotions in the post of Chief Accounts Officer and Deputy General Manager (Finance), on par with his immediate junior.
For Appellants : Mr.V.Vijay Shankar
For Respondents 2 & 3 : Mr.S.Udayakumar
JUDGMENT
(Judgment of the Court was delivered by S.MANIKUMAR,J) Challenge in this writ petition, is to the order made in O.A.No.1068/2010, dated 23.01.2013, on the file of the Registrar, Central Administrative Tribunal, Chennai, by which, the prayer, seeking regularisation of the period of suspension from 15.07.2004 to 14.02.2005, as duty, has been rejected on the ground that criminal appeal is pending against the order of acquittal.
2. Short facts leading to the writ petition are as follows:
The petitioner, while working as Chief Accounts Officer, on Officiating Basis in Gujarat Circle, was prosecuted in ACB Case No.3/2006, on the ground that he had demanded a sum of Rs.400/- from a subscriber. Upon filing of the FIR, he was reverted from the post of Chief Accounts Offier to the post of Senior Accounts officer. By order, dated 15.07.2004, he was placed under suspension. Thereafter, the said suspension was revoked on 15.07.20015 and he was reinstated in service. In the criminal case, lodged against him ACB Case No.3 of 2006, under the provisions of the Prevention of Corruption Act, the learned Special Judge and Presiding Officer of Fast Track Court, Vadodara, acquitted him, by a detailed judgment, dated 31.03.2008.
3. Though the petitioner was acquitted by the learned Special Judge and Presiding Officer of Fast Track Court, Vadodara, in view of the appeal, preferred by the State of Gujarat, the Department has not passed orders, treating the period of suspension as duty, with full pay and allowances and granted other service benefits. In the mean while, during the pendency of criminal proceedings, in the year 2006, his juniors were promoted as Chief Accounts Officer, on regular basis. However, for the reasons, best known to the authorities, they have promoted him as Chief Accounts Officer only in the year 2009, that too prospectively. Hence, he made an application in O.A.No.1068 of 2010, seeking for a direction, directing respondents 2 and 3 to regularise the period of suspension, from 15.07.2004 to 14.02.2005, as duty, with all consequential benefits, including promotions, on par with his immediate juniors.
4. Opposing the said prayer, the writ petitioner, in their reply statement, submitted that against the order of acquittal, State of Gujarat has preferred an appeal in Criminal Appeal No.2059 of 2008, before the High Court of Gujarat and therefore, regularisation of suspension period can be considered, only after the outcome of the said criminal appeal. First time bound promotion would be from 01.10.2004, subject to the officer having (i) prescribed Bench Mark of APAR for the last four years, ie., from 01.10.2000 to 30.09.2004 (ii) the officer should have touched the minimum of the next IDA Scale and (iii) Vigilance clearance for the prescribed period. The petitioner was under suspension from 15.07.2004 to 14.02.2005, which falls under the period of consideration for the 1st time bound promotion and therefore, as per the rules, the case of the petitioner was not considered.
5. It was also stated in the reply statement that the petitioner was assessed 'UNFIT' for promotion to STC on adhoc basis, by the DPC, held on 10.05.2006 and therefore, the petitioner could not be promoted to the grade of STS on adhoc basis, on par with his juniors, who were promoted, vide order, dated 29.11.2006. Thus, the respondents have stated that the request of the petitioner to regularise the suspension period on the basis of acquittal by the lower Court, cannot be considered at present, since the same cannot be revised later, based on the outcome of the pending criminal appeal.
6. On the above rival submissions, the Central Administrative Tribunal, at Paragraphs 7 and 8 of the order, made in O.A.No.1068 of 2010, dated 23.01.2013, held as follows:
"7. There is no dispute with regard to the facts which are admitted. It is also a fact that in Criminal Appeal, the Hon'ble High Court of Gujarat has ordered bailable warrant and as per the direction, the appellant has paid the bail amount. As on to-day, there is no conviction pending against the applicant, but at the same time he is on bail now. The final outcome of the Criminal Appeal will decide the issue raised by the applicant in the OA. Under such circumstances, the relief sought for by the applicant in the application cannot be granted by the Tribunal. However, we are of the considered view that the respondents in the mean time can consider the case of the applicant, as per FR-54 B(3), wherein the treatment of the period of suspension and payment thereof has been referred to. The relevant portion of the said FR reads as follows:
"Where the authority competent to order reinstament 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."
8. Since the applicant is now on bail, the final outcome of the Criminal Appeal pending before the Hon'ble High Court of Gujarat will decide the other benefits to which the applicant is entitled. Hence, the respondents are directed to consider the request of the applicant in terms of FR 54-B(3) as cited supra and pass appropriate orders."
7. Mr.V.Vijaya Shankar, learned counsel for the petitioner submitted that by citing the pendency of the criminal appeal, petitioner's promotion was deferred in the year 2006 as Chief Accounts Officer, by placing his name in the sealed cover. However, the petitioner was promoted as Chief Accounts Officer only on February 2009, though he was fit for promotion as Chief Accounts Officer, in the year 2006, ie., the year, in which, his immediate juniors were promoted. Though the acquittal order was passed on 31.03.2008, he was promoted only in February, 2009, after getting necessary vigilance clearence.
8. Learned counsel for the petitioner submitted that though the name of the petitioner was included in the panel for promotion to the post of Deputy General Manager for the year 2013-14, at Sl.No.3, the petitioner was informed that his case for promotion would be deferred, citing pendency of the criminal appeal. He further submitted that the sealed cover procedure is to grant benefits with retrospective effect, but the very action of the respondents, treating the petitioner as a convict, is arbitrary and rendering the very acquittal made by a competent Court, meaniningless and redundant. He further submitted that on acquittal, the period has to be treated as duty. Pendency of an appeal cannot be a valid reason, for not regularising the period.
9. Mr.S.Udayakumar, learned Senior Counsel for the petitioner contended that the appeal is a continuation of the proceedings and therefore, the Central Administrative Tribunal has rightly considered the same.
Heard the learned counsel for the parties and perused the materials available on record.
10. Admittedly, Criminal proceedings in ACB Case No.3/2006 has ended up in acquittal on 31.03.2008, by the learned Special Judge and Presiding Officer of Fast Track Court, Vadodara. On the contention of the writ petitioner that filing of an appeal and pendency in the High Court, is a continuation of the proceedings, disentitling the 1st respondent to receive all consequential benefits, this Court deems it fit to consider the decisions relied on by both the parties.
11. In Shri Surinder Kumar v. State of Himachal Pradesh reported in 1985 (3) SLR 254, a case was registered against the petitioner therein, under Section 409 IPC. The learned Chief Judicial Magistrate, Solan, convicted the petitioner therein, and sentenced him to imprisonment for a term of one year and a fine of Rs.2,000/-. Conviction and sentence were set aside on appeals and the petitioner therein was acquitted. He made representations for revision of pay and allowances. While considering the effect of acquittal, the Hon'ble Division Bench of the Himachal Pradesh, held as follows:
"The preferment of acquittal appeals cannot howervr, be regarded as the continuance of the trial. The trials have concluded with judgment of acquittal. (See State v. B.C.Dwivedi, 1983 (2) XXIV GLR 1315). The initial presumption of innocence must, therefore, be regarded as having been doubly reinforced by orders of acquittal passed in favour of the petitioner. Under such circumstances, the continued operation of the order of suspension as from the date of acquittal cannot be regarded as reasonable, fair and just.......... If the acquittal appears are allowed and the petitioner is convicted, there is nothing to prevent the competent authority from dealing with the petitioner in accordance with law. If, on the other hand, the acquttal appears fail and a departmental inquiry, if any, is ordered to be instituted on the same charges, it would not be fair and just reasonable to suspend the petitioner once against in view of the intial presumption of innocence having been reinforced twice over."
12. In State of West Bengal v. Hari Ramalu reported in 2000 (3) LLN 638, the respondent therein was placed under suspension on 09.09.1994. FIR was registered on 28.08.1994. The question posed before the Hon'ble Division Bench, was that in view of the pendency of the appeal, whether sub-rule (3) of rule of the All India Services (Discipline and Appeal) Rules, 1969, would still be applicable. The said rule states that a member of the service in respect of, or against, whom an investigation, inquiry or trial, relating to a criminal charge is pending may, at the discretion of the Government be placed under suspension until the termination of all proceedings relating to that charge if the charge is connected with his position as a member of the Service or is likely embarass him in the discharge of his duties or involves moral turpitude. Defining the words "inquiry" and "investigation, under Sections 2(g) and 2(h) of the Code of Criminal Procedure and considering Rule 3 of abovesaid Rules, a Hon'ble Division Bench of Calcutta High Court, at Paragraph 10, held as follows:
"Continuation of the proceedings must relate to investigation, enquiry or trial and such investigation, enquiry or trial, if any, have come to an end with the judgment of acquittal. The same being continuing in the instant case is misconceived, only on the ground that an appeal there against is pending. If respondent 1 is convicted by the appeal Court for commission of a criminal offence, sub-rule (4) of rule 3 of the said Rules would be attracted. Keeping in view the fact that different sub-rules of rule 3 operate in different fields, we are of the opinion that sub-rule (3) of rule 3 be held to be operative only in the case namely, when an investigation, enquiry or trial remains pending and not or when the employee person is acquitted. The situations obtaining under different sub-rule being absolutely different, in our opinion, sub-rule (3) of rule 3 must be given a restrictive interpretation."
13. In Chandu Ram v. State of H.P., reported in 2009 SCC Online HP 1303, a corruption case was registered against the petitioner therein before the Special Judge (Forests), Shimla. He was acquitted by the Special Judge, vide judgment delivered on 17.06.2000. Thereafter, he retired on 31.10.2000. Thus, he was eligbile to be considered for promotion as Deputy Ranger in the year 1992. Even after the acquittal, he was not given gratuity amount. It was the contention of the learned counsel appearing for the petitioner therein that after acquittal, he was entitled to get his gratuity, with interest, as per Rule 68 of the CCS (Pension) Rules. He has also pleaded that he was eligible to be promoted as Deputy Ranger, with effect from the date, his immediate juniors were promoted. Following the decision in Shri Surinder Kumar v. State of Himachal Pradesh reported in 1985 (3) SLR 254, the Calcutta High Court allowed the petition and directed the respondents therein to release the gratuity to the petitioner therein with interest, as per Rule 68 of the CCS (Pension) Rules. The repsondents therein were further directed to open the sealed cover and in case, the name of the petitioner therein has been recommended by the Departmental Promotion Committee for promotion to the post of Deputy Ranger, necessary consequential orders, be passed.
14. In State of Haryana v. Banwari Lal reported in 2010 SCC Online P & H 183, a Hon'ble Division Bench of Punjab and Haryana High Court, on the very same issue, at Paragraphs 6 and 7, held as follows:
"6. Only contention which has been pressed by learned counsel for the appellants is that since proceedings are pending, there was justification for withholding gratuity and the State is now willing to conclude the proceedings within six months from today.
7. We are unable to accept the submission. The acquittal of the respondent was vide order, dated 27.02.2007. The State had enough opportunity to conclude departmental proceedings, instead of keeping the same in abeyance. The provision to withhold gratuity during pendency of proceedings implies that the concerned authorities take steps expeditiously to finalise the same. If proceedings are kept pending for indefinite period, withholding of pensionary benefits cannot be justified. There is, thus, no ground to interfere with the view taken by the learned single Judge."
15. A Hon'ble Division Bench of Andhra Pradesh in Chief Commissioner of Land Administration, A.P., Hyderabad v. R.S.Ramakrishna Rao reported in 2010 (2) ALD 773 (DB), considered a case, as to whether, the petitioners therein can withhold the payment of retirement beneits, after acquittal, stating that the criminal appeals were pending. The Central Administrative Tribunal allowed the Original Application, directing the respondents therein to pay full pension, gratuity and other retiral benefits to the applicants therein holding that pendency of criminal appeal, against the order of acquittal, is of no consequence in view of Rules 9 and 52 of the A.P.Revised Pension Rules, 1980 (for short the Pension Rules). In that case, it was the contention of the State that against the orders of acquittal, criminal appeals have been filed before the Andhra Pradesh High Court and that the same were pending and under Rule 9 of the Pension Rules, the Government is empowered to withhold pension or gratuity, either in full or in part when any departmental or judicial proceedings, are pending against Government servant and that the petitioners therein were already sanctioned provisional pension and pendency of criminal appeals is a continuation of criminal proceedings and till the final orders are passed in the criminal appeals, the petitioners therein are not entitled for retirement benefits. After hearing both the parties, a Hon'ble Division Bench of Andhra Pradesh, at Paragraphs 12 to 22, after extracting the provisions, held as follows:
"12. Under Rule 9 of the Pension Rules, the Government has power to withhold or withdraw pension in full or in part and recover the same if the pensioner is found guilty in any departmental or judicial proceedings.
13. As per third proviso to Rule 9 of the Pension Rules, withholding of entire pension or gratuity or both may be imposed against the retired Government servant upon being found guilty or upon conviction in a Court of Law for proven grave offences of misappropriation, bribery, bigamy, corruption, moral turpitude, forgery, outraging the modesty of a woman and misconduct.
14. Even after retirement, if the pensioner is convicted of a serious crime or found guilty of gross misconduct, the Government is empowered to withhold or withdraw pension in full or in part permanently or for a specified period. Rules 8 and 9 of the Pension Rules deal with the power of the Government to withhold or withdraw pension after conviction either in the departmental proceedings or judicial proceedings.
15. Insofar as Rule 52 of the Pension Rules is concerned, the Government is empowered to withhold pension during pendency of the departmental or judicial proceedings. But, however, the Government employee is entitled for provisional pension from the date of retirement till the final orders are passed either in the departmental or judicial proceedings.
16. Rule 52 of the Pension Rules reads as follows:-
Provisional pension where departmental or judicial proceeding may be pending:- (1) (a) In respect of a Government servant referred to in sub-rule (4) of Rule 9, the Audit Officer/head of Office shall pay the provisional pension not exceeding the maximum pension which would have been admissible on the basis of qualifying service upto the date of retirement of the Government Servant, or if he was under suspension on the date of retirement, upto the date immediately preceeding the date on which he was placed under suspension.
(b) The provisional pension shall be paid by the Audit Officer/Head of Office during the period commencing from the date of retirement to the date on which, upon the conclusion of departmental or Judicial proceedings, final orders are passed by the competent authority.
(c) No gratuity shall be paid to the Government servant until the conclusion of the departmental or judicial proceedings and issue of final orders:
Provided that where departmental proceedings have been instituted under Rule 9 of Andhra Pradesh Civil Services (Classification, Control and Appeal) Rules, 1991, for imposing any of the penalties specified in clauses (i) (ii) and (iv) of Rule 9 of the said rules, except in the cases falling under sub-rule (2) of Rule 22 of the said rules, the payment of gratuity shall be authorized to be paid to the Government servant.
17. A perusal of Rule 52 (1) (b) of the Pension Rules makes it clear that the Government employees, against whom the departmental or judicial proceedings are pending, are entitled for provisional pension from the date of their retirement till the final orders are passed either in the departmental or judicial proceedings.
18. As per Rule 52 (1) (c) of the Pension Rules, the Government is empowered to withhold gratuity till the final orders are passed either in the departmental or judicial proceedings. Once final orders are passed, there is no provision that empowers the Government to withhold retirement benefits.
19. The final orders, as indicated in Sub-rules (b) and (c) of Rule 52 (1) of the Pension Rules, are the orders to be passed by the Department upon conclusion of the departmental or judicial proceedings. Once the departmental proceedings end in favour of delinquent employee, there is no question of agitating the orders of the disciplinary authority by the Department itself. Therefore, the final orders are required to be passed for the purpose of payment of retirement benefits.
20. Insofar as the criminal cases are concerned, the Department has got a right to file an appeal. But, it cannot be said that the judicial proceedings have not been concluded. Once the criminal court acquits the accused, it must amount to be the conclusion of the judicial proceedings in the first instance. Therefore, the appeals filed against the acquittal orders cannot be treated as continuation of criminal proceedings. The same view was taken by a Division Bench of Calcutta High Court in STATE OF WEST BENGALs case (1 supra), referred to above. Para 9 of the said judgment reads as follows:-
The submission of Mr.Chakraborty to the effect that pendency of the appeal against acquittal will amount to continuation of the proceedings cannot be accepted. Continuation of the proceedings must relate to investigation, enquiry or trial, and such investigation, enquiry or trial, if any, have come to an end with the judgment of acquittal. The same being continuing in the instant case, is misconceived, only on the ground that an appeal there against is pending. If the respondent No.1 is convicted by the Appeal Court for commission of a criminal offence, sub-rule (4) of Rule 3 of the said Rules would be attracted. Keeping in view the fact that different sub-rules of Rules 3 operative in different fields, we are of the opinion that sub-rule (3) of Rule 3 be held to be operative only in the case namely, when an investigation enquiry or trial remains pending and not or when the employee person is acquitted. The situations obtaining under different sub-rule being absolutely different, in our opinion, sub-rule (3) of Rule 3 must be given a restrictive interpretation.
21. If the appeal is not in continuation of original criminal proceedings, the order of acquittal is a final order within the ambit of Rule 52 of the Pension Rules, referred to above. After the orders of acquittal passed by the criminal court, as already stated above, there is no power for the Government to withhold pension or retirement benefits. The said benefits, therefore, are liable to be paid immediately after acquittal order.
22. If the appeal or revision proceedings are in continuation of the criminal proceedings, there will be no end for the litigation and the employees, who have been acquitted honourably, shall not get retirement benefits till conclusion of all appeals, revisions, special leave petitions etc. Appeal against acquittal, not being continuation of original criminal proceedings, Rule 52 as above, will not be available to Government for withholding retirement benefits."
At Paragraph 24, the Hon'ble Division Bench has referred to a decision made in W.P.No.8000 of 2009 and batch, dated 17.11.2009, wherein, the Hon'ble Division Bench held that, "when a Government employee suffers conviction and he is dismissed from service under Rule 25 of the State and Subordinate Service Rules, 1996, mere pendency of the criminal appeal and suspension of sentence does not enable such convicted Government employee to seek either reinstatement or payment of retirement benefits. The same analogy applies in the instant cases of acquittal as well and once the Government employee is acquitted of the criminal charge, merely because the State preferred an appeal, the Government cannot withhold retirement benefits of the Government employees, on account of pendency of the appeals against acquittal."
16. In R.C.Dubey v. M.P.State Electricity Board reported in 2013 SCC Online MP 1004, the petitioner therein was granted the benefit of First Higher Pay Scale, by order, dated 23.8.1990, in the post of Junior Engineer. He was entiteld to Second Higher Pay Scale, which was not granted, because of the criminal prosecution launched against the petitioner, under the Prevention of Corruption Act, by Lokayukt, which led to suspension. On 12.12.2000, the petitioner therein was acquitted. Thereafter, he was reinstated on 3.1.2001. As his request for grant of higher pay scale, was not considered, he preferred a Writ Petition, which was disposed of, on 8.3.2006, with a direction to the respondent therein to consider his claim. Subsequently, the Department rejected his claim, stating that the prosecution has filed a Criminal appeal, against acquittal and therefore, recommendations were given in a sealed cover. Selection Committee also approved that the recommendations, in respect of the second higher scale, would be considered, only after the outcome of the said Criminal Appeal. Contention of the petitioner therein was that having been acquitted, criminal case cannot be said to be pending merely because an appeal is directed against the acquittal order. He also prayed that the respondents therein be directed to open the sealed cover and extend the benefit of second higher pay scale to him. After considering the definition of the expression "judicial proceeding" "includes any proceeding in the course of which evidence is ormay be legally taken on oath." and after considering the decision made in Sheo Ram v. State (AIR 1964 Allahabad 290), the Madhya Pradesh High Court held as follows:
"The preferment of a criminal revision or an appeal against an acquittal cannot be regarded as a continuance of the trial and cannot be treated to be pendency of judicial proceeding as the initial presumption of innocence gets re-enforced by the orders of acquittal. The contention, therefore, put forth by the respondents that the filing of revision against the judgment dated 12.12.2000 would tantamount to the pendency of judicial proceeding does not reason with the provisions as they stand under law.In the considered opinion of this Court, after acquittal, which lead to an affirmation of the innocence of the accused, an appeal or revision, as the case may be, being not a continuation of trial, will not amount to a pendency of judicial proceedings."
18. In Balak Singh Thakur v. State of Madhya Pradesh reported in 2014 SCC Online MP 1036, the claim of the petitioner therein for settlement of wages of suspension period, was rejected on the ground that against the order of acquittal recorded in a case, under the Prevention of Corruption Act, an appeal has been preferred in the High Court. Before the Madhya Pradesh High Court, it was contended that having been acquitted in a criminal case, pendency of criminal appeal, cannot be put against the claim of the petitioner therein for wages. The respondents therein contended that since an appeal was preferred against the acquittal, the petitioner therein was still under the cloud and hence, not entitled to finalisation of suspension period. Considering the said contentions, the Madhya Pradesh High Court held that objections of the respondents were not unjustified.
19. Reverting to the case on hand, perusal of the judgment in ACB Case No.3/2006, dated 31.03.2008, on the file of the Special Judge and Presiding Officer of Fast Track Court, Vadodara, shows that the petitioner was acquitted on merits and that the Court, after considering all the facts, held that there is no cogent and reliable evidence and that the complainant himself was not clear. The Court has further held that averments made by the prosecution cannot be accepted and resultantly, when there was no evidence, the petitioner is entilted to be acquitted.
20. While that be the clear finding recorded in the judgment, acquitting the petitioner, under the premise of appeal, being filed and pending, against the order of acquittal, the petitioner cannot be deprived of the regularisation of the suspension period, endlessly. Disposal of the appeal may take a long time. The petitioner is stated to have retired from service. There is no certainity 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 Department may again contend that the appeal is pending before the Apex Court. Thus, if the arguments of the respondents 2 and 3 have to be accepted, then there is no finality to the judgment of acquittal. In the light of the discussion and decisions considered, the further contention of the learned counsel that Vigilance has not given a clearence, cannot be countenanced.
21. Though by placing reliance on a decision of the Hon'ble Apex Court in Garikapti Veeraya v. N.Subbiah Choudhry reported in AIR 1957 SC 540, learned counsel for respondents 2 and 3 contended that appeal is a continuation of the proceedings and that Vigilance has not given a clearance to the case of the petitoiner, this Court is not inclined to accept the same. In the light of the discussion and decisions, stated supra, merely because the appeal is pending, it is not open to the respondents 2 and 3, not to regularise the period as duty. It has to be regularised.
22. Hence, the Writ Petition is allowed. Respondents 2 and 3 are directed to to regularise the period of suspension, from 15.07.2004 to 14.02.2005, as duty, with all consequential benefits, including promotions, on par with his immediate juniors, within a period of two months, from the date of receipt of a copy of this order. No costs. Consequently, connected Miscellaneous Petition is also also closed.
(S.M.K., J.) (G.C., J.) 27.08.2015 Index: Yes Internet: Yes S. MANIKUMAR, J.
AND G.CHOCKALINGAM, J.
Skm To The Registrar, Central Administrative Tribunal, City Civil Court Campus, High Court, Chennai 600 004.
Writ Petition No.18949 of 2015 27.08.2015