Central Administrative Tribunal - Bangalore
T.N. Shivakumar vs Regional Provident Fund Commissioner on 28 April, 2005
Equivalent citations: 2005(3)SLJ108(CAT)
ORDER Mukesh Kumar Gupta, Member (J)
1. As an earlier order dated 27.1.2005, disposing of the present OA has been recalled earlier by us today, we heard this OA afresh and proceeded to decide on merits.
2. The question posed in the present OA is whether the applicant is entitled to regularization of the period of suspension and dismissal as well as full pay and allowances with other consequential benefits?
3. The admitted facts are that the applicant, while working as Section Supervisor, was placed under suspension vide order dated 18.12.1993 pending investigation into the "criminal offence". The incident in question for which he was placed under suspension, resulted in criminal proceedings vide Special CC No. 53/1994 filed before the learned Court of XXI Additional City Civil & Sessions Judge, and learned Special Judge for CBI Cases, Bangalore, convicted him for offence punishable under Sections 7 and 13(2) of the Prevention of Corruption Act, 1988 vide judgment dated 22.2.1999. Criminal Appeal No. 286/1999 preferred before the High Court of Karnataka against the aforesaid judgment and conviction, was allowed vide judgment dated 30.10.2002 holding that the judgment of the learned Trial Court was illegal and invalid, which required interference by the High Court.
In the meantime, the respondent issued memorandum dated 24.2.2000 under Rule 15 of the Employees Provident Fund (Classification, Control & Appeal) Rules, 1971, which provisions are para materia to Rule 19 of CCS (CCA) Rules and the applicant was afforded an opportunity to show cause as to why the major penalty he not imposed upon him following his conviction. He submitted a representation dated 8.3.2000 and prayed that no action be taken thereon as the High Court of Karnataka in the aforesaid appeal had already stayed the order of punishment. After considering the said representation, the Regional Provident Fund Commissioner, Bangalore vide order dated 31.5.2000, in exercise of the powers conferred in Rule 8 of the aforesaid Rule, imposed the punishment of dismissal from service.
Consequent to the judgment dated 30.10.2002 passed by the High Court of Karnataka in the aforesaid criminal appeal, acquitting the applicant, the respondent reinstated him vide office order dated 3.4.2003, on the following terms and conditions :
"(1) Shri T.N. Shivakumar, Section Supervisor, will be entitled to the pay and allowances in the post of Section Supervisor as drawn immediately before the date of suspension i.e. in the time of Rs. 1400-40-1600-50-2300-60-2600. He may also exercise his option for the new pay scales under the V Pay CCS (R) Rules, 1997 within one month.
(2) On reinstatement, Shri T.N. Shivakumar, Section Supervisor, is posted at SAO-Bommasandra.
(3) Shri T.N. Shivakumar, Section Supervisor, is directed to report to the place of posting within 7 days from the date of receipt of the order."
Immediately thereafter, vide memorandum dated 4th June 2003, the respondent decided to initiate departmental proceedings on the same facts and incident, which had been the subject-matter before the learned Criminal Court. The applicant submitted representation dated 16.6.2003 and prayed that the period of suspension and dismissal be regularized pursuant to instructions issued by the Government of India on the said aspect and since he had been acquired on merit by the High Court of Karnataka, he be granted full pay and allowances, which request was rejected by the respondent vide memorandum dated 4/7.7.2003 stating that the charge sheet dated 4.6.2003 issued is on the same subject matter for which he was suspended/dismissed and until a final decision is taken on the charges framed, decision regarding the regularisation of the period of suspension/dismissal cannot taken."
4. The aforesaid communication dated 4/7.7.2003 is impugned in the present OA and a direction is also sought to regularize the period of suspension/dismissal by granting him full pay and allowances with all consequential benefits including costs and arrears besides interest @ 12% per annum.
5. We heard learned Counsel for the parties at length and perused the pleadings carefully. Shri R. Srikanth, learned Counsel appearing for the applicant vehemently contended that in view of the provisions of FR 54 as well as the Government of India decision taken thereon, the applicant was entitled to full pay and allowances for the period, i.e. from 18.12.1993 till 3.4.2003. On the other hand, the respondent contested the aforesaid claim and stated that since the applicant was not acquitted on merits by the Hon'ble High Court, the department initiated departmental enquiry, which is otherwise not barred under the law of the land, and as the said proceedings remain pending, the period of suspension/dismissal would be decided on conclusion of the aforesaid proceedings. The respondent also urged that the present OA was not maintainable as the applicant had chosen to file the present OA challenging the charge sheet without even filing reply to the same. It was further contended that the applicant had not availed alternate remedy available to him.
6. On perusal of the relief clause, we find that the applicant had not challenged the validity of the charge memo dated 4.6.2003 and therefore, we do not find any substance in the respondent's objection. Which alternate remedy was available to the applicant against the order dated 4/7.7.2003, was also neither specified nor clarified even during the course of hearing. Therefore, we are not impressed by the said objection raised. Accordingly, the said objection is also over ruled.
7. Before we proceed further on merits, we may note that FR. 54 deals with the situation where a Government servant who had been dismissed or removed or compulsorily retired, is reinstated as a result of an appeal or review, while under suspension or otherwise. In such case, the authority competent to order reinstatement is obliged to consider and make a specific order regarding pay and allowances to be paid to the Government servant for the period of his absence including the period of suspension preceding dismissal, removal or compulsory retirement as well as whether or not the said period be treated as a period spent on duty.
Mr. R. Srikanth, learned Counsel for the applicant strenuously urged that the mandate of aforesaid provision of FR was not complied with by the respondent at the time of reinstating the applicant and therefore, the impugned communication dated 4/7.7.2003 is illegal, arbitrary and unsustainable. It was further contended that no order was passed by the respondent, as required under the aforesaid provisions of FR. It would be expedient at this stage to notice the said PR, which reads as under :
"F.R. 54(1) When a Government servant who has been dismissed, removed or compulsorily retired is reinstated as a result of appeal or review or would have been so reinstated but for his retirement on superannuation while under suspension or not, 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 his absence from duty including the period of suspension preceding his dismissal, removal or compulsory retirement, as the case may be; and
(b) whether or not the said period shall be treated as a period spent on duty.
(2) Where the authority competent to order reinstatement is of opinion that the Government servant who had been dismissed, removed or compulsorily retired has been fully exonerated, the Government servant shall, subject to the provisions of Sub-rule (6), be paid the full pay and allowances to which he would have been entitled, had he not been dismissed, removed or compulsorily retired or suspended prior to such dismissal, removal or compulsory retirement, as the case may be:
Provided that where such authority is of 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 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, subject to the provisions of Sub-rule (7), be paid for the period of such delay, only such amount (not being the whole) of such pay and allowances as it may determine.
(3) In a case falling under Sub-rule (2), the period of absence from duty including the period of suspension preceding dismissal, removal or compulsory retirement, as the case may be, shall be treated as a period spent on duty for all purposes.
(4) In cases other than those covered by Sub-rule (2) (including cases where the order of dismissal, removal or compulsory retirement from service is set aside by the appellate or reviewing authority solely on the ground of non-compliance with the requirements of Clause (1) or Clause (2) of Article 311 of the Constitution and no further inquiry is proposed to be held) the Government servant shall, subject to the provisions of Sub-rules (5) and (7), be paid such amount (not being the whole) of the pay and allowances to which he would have been entitled, had he not been dismissed, removed or compulsorily retired or suspended prior to such dismissal, removal or compulsory retirement, as the case may be, as the competent authority may determine, after giving notice to the Government servant of the quantum proposed and after considering the representation, if any, submitted by him in that connection within such period (which in no case shall exceed sixty days from the date on which the notice has been served) as may be specified in the notice.
(5) In a case falling under Sub-rule (4), the period of absence from duty including the period of suspension preceding his dismissal, removal or compulsory retirement, as the case may be, shall not be treated as a period spent on duty, unless the competent authority specifically directs that it shall be treated so for any specified purpose:
Provided that, if the Government servant so desires, such authority may direct that the period of absence from duty including the period of suspension preceding his dismissal, removal or compulsory retirement, as the case may be, shall be converted into leave of any kind due and admissible to the Government servant.
(6) The payment of allowances under Sub-rule (2) or Sub-rule (4) shall not be subject to all other conditions under which such allowances are admissible.
(7) The amount determined under the proviso to Sub-rule (2) of under Sub-rule (4) shall be less than the subsistence allowance and other allowances admissible under Rule 53.
(8) Any payment made under this rule to Government servant on his reinstatement shall be subject to adjustment of the amount, if any, earned by him through an employment during the period between the date of removal, dismissal or compulsory retirement, as the case may be, and the date of reinstatement. Where the emoluments admissible under this rule are equal to or less than the amounts earned during the employment elsewhere, nothing shall be paid to the Government servant."
(Emphasis supplied) It is not disputed by the respondent that the mandate of FR 54(1) has not been complied with and no decision as required under FR 54(1), (2) & (3) read with Sub-rule (5) of the aforesaid rule has been complied with.
Sub-rule 1 of FR 54 requires the competent authority, while ordering reinstatement, to consider and pass specific order regarding pay and allowances to the paid to be Government servant. Further, the competent authority is also required to pass a specific order to treat the said period as a period spent on duty or otherwise. The learned Counsel for the applicant, Shri Srikanth has vociferously contended that no such order was even passed either at the time of applicant's reinstatement on 3.4.2003 or thereafter. The terms and conditions, which were alone made applicable at the time of his reinstatement, have already been noticed hereinabove and the perusal of the said order, in our considered view indeed goes to show that the competent authority had failed to carry out the mandate of the said provisions. It is not the case of the respondent even today that any show cause notice was issued to the applicant as required under Sub-rule (2) of FR 54. It is also not the case of the respondent that the applicant had been responsible for delayed proceedings. What has been seriously contended by the respondent is that the applicant was not acquitted by the High Court honourably and the said acquittal was only technical.
8. We have carefully considered the rival contentions of the parties and on bestowing our careful consideration to the same, we are unable to accede to such contention of the respondent. In Commissioner of Police and Ors. v. Om Kumar and Ors., 2004(3) SLJ 272, a Division Bench of the Hon'ble Delhi High Court has taken a view that once a punishment imposed in the departmental enquiry is quashed and set aside by the Court/Tribunal with consequential benefits, the concerned official is entitled to full pay and allowances for the period intervening between the date of dismissal including the period of suspension preceding such dismissal and the date of reinstatement. Such period shall also be treated as duty for all purposes. Similarly, in Shashi Kumar v. Uttri Haryana Bijli Vitran Nigam, 2005 Vol. 1 ATJ 154, a Division Bench of Punjab & Haryana High Court also considered the claim about backwages, particularly when based on conviction by the learned Special Judge a person was removed on account of such conviction, which was ultimately quashed and set aside by the appellate Court acquitting the official giving benefit of doubt. In the said case, noticing various judgments, namely, , , 1971 SLR 743, Ram Sinhji Viraji Rathod, Parmanand Society v. The State of Gujarat and Anr., a judgment of a Division Bench of Gujarat High Court, it was held that the terms "honourable acquittal" or "fully exonerated" are unknown in the Code of Criminal Procedure & in Criminal Jurisprudence. In the said case, the petitioner was convicted by learned Court of Special Judge, Karnal under Section 7/13 of the Prevention of Corruption Act and therefore, he was removed from service, based on such conviction. The said conviction was set aside by the High Court in appeal and thereafter he made a representation that he be taken on duty and also be granted all consequential benefits, which request was rejected. The said action was challenged before the Hon'ble High Court of Punjab & Haryana, and a plea was taken that since the petitioner therein was 'acquitted' by giving benefit of doubt, the petitioner was not entitled to be reinstated with full back wages. The Division Bench of the Hon'ble Punjab & Haryana High Court after noticing the judgment passed in appeal clearly held that the order of acquittal was passed after threadbare examination of the evidence and therefore the petitioner was acquitted on merits. Ultimately, it was concluded that : 'it can hardly be said that the acquittal of the petitioner is not 'honourable'. It would be expedient at this stage to notice the relevant paras 7-10 of the said judgment, which reads thus :
"7." In any event, the terms "honourable acquittal" or "fully exonerated" are unknown in the Code of Criminal Procedure or in Criminal Jurisprudence. These terms came up for consideration before a Division Bench of the Madras High Court in the case of Union of India v. Jayaram, . Rajamannar, C.J. delivering the judgment of the Division Bench observed as under :
"There is no conception like "honourable acquittal" in Criminal P.C. The onus of establishing the guilt of accused is on the prosecution, and if it fails to establish the guilt beyond reasonable doubt, the accused is entitled to be acquitted.
Clause (b) of Article 193 of the Civil Service Regulations which says that when a Government servant who was under suspension is honourably acquitted, he may be given the full salary to which he would have been entitled if he had not been suspended applies only to the case of departmental inquiry.
Where the servant was suspended because there was a Criminal prosecution against him, and he was acquitted therein, and reinstated he is entitled under general law, to the full pay during the period of the suspension. To such a case Article 193(b) does not apply".
8. The aforesaid judgment of the Madras High Court was considered and followed by this Court in the case of Jagmohan Lal v. State of Punjab through Secy. To Punjab Government, Irrigation and Ors., . In that case, on acquittal, the petitioner was reinstated in service, but his period of suspension was not treated as the period spent on duty. He had, therefore, filed writ petition under Articles 226/227 of the Constitution of India claiming that he was entitled to full pay and allowances for the period of his suspension. Considering the impact of Rules 7.3, 7.5 and 7.6 of the Punjab Civil Services Rules Vol.1, Part-I, it was observed as follows :
(2) xxx xxx xxx The interpretation which has been put by the Government on the rule is incorrect. The blame which attached to the petitioner was that there was a criminal charge against him under which he was standing his trial. The moment he is acquitted of the charge, he is acquitted of the blame. In criminal law, the Courts are called upon to decide whether the prosecution has succeeded in bringing home the guilt to the accused. The moment the Court is not satisfied regarding the guilt of the accused, he is acquitted. Whether a person is acquitted after being given a benefit of doubt or for that reasons, the result is that his guilt is not proved. The Code of Criminal Procedure does not contemplate honourable acquittal. The only words known to the Code are 'discharged' or 'acquitted'. The effect of a person being discharged or acquitted is the same in the eyes of law. Since, according to the accepted notions of imparting criminal justice, the Court has to be satisfied regarding the guilt of the accused beyond a reasonable doubt, it is generally held that there being a doubt in the mind of the Court, the accused is acquitted.
I am, therefore, quite clear in my mind that the intention underlying Rule 7.5 can be no other except this: the moment the criminal charge on account of which an officer was suspended fails in a Court of Law, he should be deemed to be acquitted to the blame. Any other interpretation would defeat the very purpose of the rule. It is futile to expect a finding of either honourable acquittal or complete innocence in a judgment of acquittal. The reason is obvious; the criminal Courts are not concerned to find the innocence of the accused. They are only concerned to find whether the prosecution has succeeded in proving beyond a reasonable doubt the guilt of the accused."
9. The judgment rendered in the case of Union of India v. Jayaram (supra) has also been followed by a Division Bench of the Gujarat High Court in the case of Ramsinji Viraji Rathod, Parmanand Society v. The State of Gujarat and Anr., 1971 SLR 743. In the aforesaid case, it has been observed as follows :
"7. ... Clause (b) of Article 193 of the Civil Service Regulations, which was under consideration before the Madras High Court was substantially similar to our Rule 152, which this difference, that instead of the words "fully exonerated" the words were "honourably acquitted". With respect we are in agreement with the reasoning of Rajamannar, C.J. and in our opinion, it is not open to the authorities concerned to bring in the concept of honourable acquittal or full exoneration so far as the judgment of the Criminal Court is concerned. In a criminal trial the accused is only called upon to meet the charge leveled against him and may meet the charge-(a) by showing that prosecution case against him is not true or (b) that it is not proved beyond reasonable doubt; or (c) by establishing positively that his defence version is the correct version and the prosecution version is not correct. In any case of these three cases, if the Court comes to the conclusion that the prosecution has failed to establish its case beyond reasonable doubt or that the prosecution case is not true or that the defence version is correct and is to be preferred as against the prosecution version, the Criminal Court is bound to acquit the accused. The accused is not called upon in every case to establish his complete innocence and it is sufficient for the purposes of criminal trial that he satisfies the Court that the prosecution has not established its case beyond reasonable doubt. Since he is not called upon to prove a positive case the concept of honourable acquittal of full exoneration can have no place in a criminal trial and it is because of this reasoning that we agree with the observations of Rajamannar, C.J. in Jayaram's case, ."
10. Furthermore, a Division Bench of this Court, after examining the relevant rules in the case of Hukan Singh (supra) has held as under :
"It is abundantly clear that Rule 7.3 of the Rules in the general rule, while in case a person is acquitted, it is specific Rule 7.5 of the rules that would be attracted. The law is well settled that special Rule will always take precedence over the general rule and consequently, it must follow that under Rule 7.5 of the Rules, referred to above, the petitioner was entitled to the full back wages because, as mentioned above, the earlier decisions referred to above have little application in the present case.
In our this view, we are supported by the judgment of the Court in the case of Maha Singh v. State of Haryana and Anr., 1993(8) Services Law Reporter 188. Same view was expressed by this Court in the case of Lehna Singh v. The State of Haryana and Ors., 1993(3) Recent Services Judgment 119. Keeping in view the aforesaid, we have no hesitation in holding that the impugned order cannot be sustained. In terms of Rule 7.5 of the Rules, on petitioner's being acquitted, he would be entitled to full salary and allowances for the period of suspension and dismissal...".
(Emphasis supplied)
9. Recently, the Principal Bench of this Tribunal also considered a similar issue in R.K. Gupta v. Union of India and Ors., 2005(1) ATJ 587 and following the aforesaid judgment of Punjab & Haryana High Court as well as Delhi High Court, besides 1996 Vol. 32 ATC 237 (SC), allowed the claim. In the said case of R.K. Gupta (supra) the facts were that the applicant therein was suspended on 26.7.1985 due to involvement in a criminal case. He retired on 26.2.1996 but was acquitted only on 29.11.2003 "for lack of sufficient evidence". The claim of the applicant therein for full pay and allowances was allowed by the Principal Bench and the respondents were directed to treat the suspension period as duty for all the purposes. Similarly, this Bench in S.R. Gurudatta v. The Director (Admn.), 2005(1) SLJ 367 (CAT Bangalore) has held that once a person who is suspended based on criminal investigation, which ultimately results in acquittal either by the trial Court or by the higher Court in appeal, the period of suspension has to be regulated and treated as period spent on duty for all purposes and mere initiation of departmental proceedings subsequent to such decision/judgment and its treatment could not be deferred or made dependent on the outcome of such departmental proceedings.
Learned Counsel for the applicant also strongly urged that though the charge memo was issued on 4.6.2003, no progress has been made in the said departmental enquiry. Right of speedy trial has been recognized by the Hon'ble Supreme Court and the said concept has been extended to departmental enquiries also. Since the incident in question relates to the year 1993, for which memorandum was issued only on 4.6.2003 we are of the considered view that it is a fit case where a direction should be issued to respondent to conclude the said proceedings expeditiously. Mr. R. Srikanth, learned Counsel for the applicant, submitted that such proceedings initiated belatedly should not have been instituted as he had suffered great prejudice in placing his defence before the concerned authorities. Since the validity of such proceedings has not been questioned in the present OA, we refrain to make any comment on the said aspect and the applicant would be at liberty to take up such plea in appropriate proceedings before the appropriate authority, if so advised.
On cumulative reading of the facts as well as law noticed hereinabove, besides the rule position, we are of the considered view that the respondent's action in passing the impugned order dated 4/7.7.2003 cannot be sustained and is liable to be quashed. We further hold that the perusal of judgment rendered in Criminal Appeal No. 286/1999, did not justify the respondent's contention that the applicant's acquittal by the High Court of Karnataka was not honourable acquittal but only technical acquittal. We may at this stage note the observation made in the said judgment, particularly para 21, which reads as under :
"21. The discussion supra, clearly go to show that the case projected by P.W. 1 -complainant, is not as straight and simple as projected, the evidence of this witness has to be acted upon with a pinch of salt. The cumulative effect of the evidence placed on record by the prosecution is unacceptable and insufficient to spell out a case in favour of the prosecution. The evidence placed on record through P.Ws. 1 and 2 in the opinion of this Court does not inspire confidence of the Court to spell out a case against the accused, holding that the accused had demanded and accepted a sum of Rs. 100/- on 3.8.1993 and a sum of Rs. 300/- on 16.8.1993 from P.W. 1 as bribe money, so as to attract the penal provisions of law in this regard. In the opinion of this Court, the Lower Court had not properly appreciated the evidence on record in the right perspective and hence, this Court will have to record a finding that the judgment of the trial Court is illegal and invalid and. the same requires to be interfered by this Court."
(Emphasis supplied)
10. In view of the above observation as well as clear unambiguous findings, we have no hesitation to conclude that the applicant's acquittal cannot but has to be termed as complete acquittal as well as acquittal on merits, though such concept is not available under the criminal jurisprudence. As noticed hereinabove, acquittal is an acquittal and the Disciplinary Authority or other authorities cannot be allowed to rewrite and re-read the said judgment according to their choice, particularly when such judgment is rendered by a constitutional body, i.e. High Court.
11. In view of the discussion made hereinabove, the OA is allowed and order dated 4/7.7.2003 (Annexure A-7) is quashed and set aside. The respondents are directed to consider and regularize the period of suspension from 18.12.1993 till his reinstatement on 3.4.2003, in terms of FR 54 as well as the judgment noticed hereinabove. This exercise shall be completed within a period of two months from the date of receipt of a copy of this order.
12. The respondents are also directed to conclude the departmental proceedings initiated against the applicant vide memorandum dated 4.6.2003 by 31st July, 2005 and the applicant would be at liberty to raise all possible legal pleas available to him in such proceedings. No costs.