Delhi High Court
Sh. Prem Singh vs Delhi Transport Corporation And The ... on 20 November, 2007
Author: J.M. Malik
Bench: J.M. Malik
JUDGMENT J.M. Malik, J.
1. The burning point of discussion in this writ petition is whether a suspended employee is entitled to full back wages and allowances after his acquittal in a criminal case or revocation of suspension order?
2. The petitioner was posted as Baledar with Delhi Transport Corporation, Inderprastha Depot, New Delhi, respondent No. 1. He was suspended w.e.f. 19.03.1995 by the department. According to the petitioner, he and all his family members were arrested on a falsely foisted murder case under Section 302 IPC at P.S. Bisrakh, Ghaziabad U.P. The petitioner and all his family members were acquitted on 01.11.2002 by the Sessions Court, Gautam Budh Nagar, U.P.
3. The petitioner was arrested on 19.03.1995. Consequently, he could not attend his duties from 19.03.1995 to 02.05.1995. During the suspension period the petitioner was served with a chargesheet dated 30.08.1995 under Clause 15(2) of the DRTA (Conditions of Appointment & Service) Regulations, 1952, read with Section 4(e) of the Delhi Road Transport Laws (Amendment) Act. The allegation against the petitioner was that he did not intimate about the above said case and his arrest to his department.
4. Vide order dated 17.02.2003 issued by Manager (P & A) the petitioner was released from suspension and was ordered to be taken back on duty w.e.f. 18.02.2003, pending inquiry into the case.
5. The petitioner was served with another memo dated 10.03.2003 whereby he was called upon to show cause as to why the penalty of 'censure' be not imposed upon him. The petitioner vide his explanation dated 13.03.2003 explained that his delay in informing the office regarding the arrest was not intentional but beyond his control as he was handicapped due to police custody and there was not even a single member of his family who could have informed the office as all of them were in jail.
6. Vide impugned order dated 18.03.2003 the punishment of 'censure' was imposed upon the petitioner and it was further ordered that "the subsistence allowance which had already been paid to him for the period he remained under suspension is considered adequate", meaning thereby, that the remaining pay and allowances stood forfeited. The said order was not communicated to the petitioner but it came to light when his request for the payment of balance amount of the salary was rejected on 24.10.2003. He preferred an appeal which was dismissed on the ground that it was time barred on 09.01.2004. The review petition was also dismissed. Consequently, the present writ petition was filed wherein it was prayed that writ of certiorari, quashing the impugned order dated 18.03.2003 passed by the respondent forfeiting his residue pay and allowances for the period of suspension w.e.f. 19.03.1995 to 18.02.2003 kindly be issued. It was further prayed that interest be also granted.
7. I have heard the counsel for the parties. The counsel for the petitioner vehemently argued that petitioner is entitled to have full salary and other allowances for the period in which he remained suspended. He argued that the order passed by the authorities concerned is illegal and not in accordance with the well established judicial pronouncements. He submitted that no opportunity to show cause was provided to the petitioner regarding the forfeiture of part of the above said salary and other allowances. He urged that it was incumbent upon the respondent to give him reasonable opportunity to show cause as to why the above said portion of salary and other allowances should not be paid to him. In order to bring his point home, he has cited following authorities.
8. M. Gopalkrishna Naidu v. The State of Madhya Pradesh , the facts of the case were that the employee was suspended from service and prosecuted under Section 161 of the Indian Penal Code. He was convicted by the trial court but in appeal he was acquitted. On revision filed before the High Court the proceedings against him were ultimately withdrawn. The orders directed that the departmental inquiry be withdrawn, the appellant should be reinstated in service with effect from the date of the order and retired from that date, he having already attained superannuation age on September 5, 1952 and that the entire period of absence from duty should be treated as period spent on duty under Fundamental Rule 54(5) for the purposes of pension only, but that he should not be allowed any pay beyond what he had actually received or what was allowed to him by way of subsistence allowance during the period of his suspension. The Apex Court held:
(10) In our view F.R. 54 contemplates a duty to act in accordance with the basic concept of justice and fairplay. The authority therefore had to afford a reasonable opportunity to the appellant to show cause why Clauses 3 and 5 should not be applied and that having not been done the order must be held to be invalid.
(11) The appeal is allowed and the High Court's order is set aside. The competent authority is directed to consider the question de novo after giving to the appellant a reasonable opportunity to show cause against the action proposed against him. The respondent will pay to the appellant costs of this appeal as also the costs of the petition in the High Court.
Appeal allowed.
9. In another case reported in Y.P. Sehgal v. State of Punjab and Anr. 1992 (1) SLR 583, it was observed:
2. So far as the illegality of the directions contained in the impugned order dated 19th December, 1990, Annexure P-3, is concerned, by which the petitioner has been held not entitled to the arrears of salary and allowances beyond the subsistence allowance he was paid during the period of suspension commencing from 7th March, 1990 to 19th December, 1990, suspension of the petitioner was ordered as some allegations were levelled against him and disciplinary action was under contemplation under the Punjab Civil Services (Punishment and Appeal) Rules, 1970. However, after considering the reply to the chargesheet, the matter was dropped only by awarding minor punishment of censure to the petitioner and he was reinstated on 27th December, 1990, as he was going to superannuate on attaining the age of 58 years on 31st December, 1990. In these circumstances, when the petitioner has been reinstated and the proposed disciplinary action against him has resulted in the imposition of minor punishment of censure, it is neither permissible in law nor fair to deny to him the arrears of salary and allowances beyond the subsistence allowance granted to him during the period of suspension. Otherwise, also, as already noted above, it is a settled rule of law that if an employee has to be disallowed the arrears of salary and allowances and he has to be paid nothing beyond the subsistence allowance, an opportunity of hearing by issuing a notice to him has to be granted, without which the impugned action would be wholly arbitrary and violative of the principles of natural justice. Since no such opportunity was afforded to the petitioner before passing the impugned order, the same is quashed, being violative of the principles of natural justice.
10. Lastly he cited another authority reported in Vasant Raghunath Gokhale v. The state of Maharashtra and Anr. .
11. He has also relied upon Swamy's Manual on Disciplinary Proceedings from Central Government Servants.
12. The above said logic trotted out by the learned Counsel for the petitioner has lost is sheen in view of the latest pronouncements of the Apex court. The facts of M. Gopalkrishna Naidu v. The State of Madhya Pradesh (supra) are different. Moreover, it must be borne in mind that the petitioner is to be governed by rules and regulations applicable to the employees of DTC. Clause 15(4)(b) of Delhi Road Transport Authority, D.R.T.A. (Conditions of Appointment & Service) Regulations, 1952 provides:
(b) When the suspension of an employee is held to have been unjustified or when an employee who has been dismissed, removed or suspended is reinstated, the revising or appellate authority may grant to him for the period of his absence from duty.
(i) If he is acquitted, the full pay to which he would have been entitled if he had not been dismissed, removed or suspended and by an order to be separately recorded, any allowance of which he was in receipt prior to his dismissal, removal or suspension; or
(ii) If otherwise, such proportion of such pay and allowances as the revising or appellate authority may prescribe.
In a case falling under Clause (i) the period of absence from duty will be treated as period spent on duty. In a case falling under Clause (ii) it will not be treated as a period spent on duty unless the revising or appellate authority so direct.
It is therefore clear that the concerned authority was well in his right to pass such a consequential order. The above said provision gives discretion to the disciplinary authority to regulate payment during suspension period.
13. In an authority reported in Krishankant Raghunath Bibhavnekar v. State of Maharashtra and Ors. , it was held:
4. Mr. Ranjit Kumar, learned Counsel for the appellant, contends that under Rule 72(3) of the Maharashtra Civil Services (Joining Time, Foreign Services and Payment during Suspension, Dismissal and Removal) Rules, 1991 (for short "the Rules"), the Rules cannot be applied to the appellant nor would the respondents be justified in treating the period of suspension of appellant, as the period of suspension, as not being warranted under the Rules. We find no force in the contention. It is true that when a government servant is acquitted of offences, he would be entitled to reinstatement. But the question is whether he would be entitled to all consequential benefits including the pensionary benefits treating the suspension period as duty period, as contended by Shri Ranjit Kumar? The object of sanction of law behind prosecution is to put an end to crime against the society and laws thereby intends to restore social order and stability. The purpose of the prosecution of a public servant is to maintain discipline in service, integrity, honesty and truthful conduct in performance of public duty or for modulation of his conduct to further the efficiency in public service. The Constitution has given full faith and credit to public acts. Conduct of a public servant has to be an open book; corrupt would be known to everyone. The reputation would gain notoriety. Though legal evidence may be insufficient to bring home the guilt beyond doubt or foolproof. The act of reinstatement sends ripples among the people in the office/locality and sows wrong signals for degeneration of morality, integrity and rightful conduct and efficient performance of public duty. The constitutional animation of public faith and credit given to public acts would be undermined. Every act or the conduct of a public servant should be to effectuate the public purpose and constitutional objective. Public servant renders himself accountable to the public. The very cause for suspension of the petitioner and taking punitive action against him was his conduct that led to his prosecution for the offences under the Indian Penal Code. If the conduct alleged is the foundation for prosecution, though it may end in acquittal or appreciation or lack of sufficient evidence, the question emerges whether the government servant prosecuted for commission of defalcation of public funds and fabrication of the records, though culminated into acquittal, is entitled to be reinstated with consequential benefits. In our considered view this grant of consequential benefits with all back wages etc. cannot be as a matter of course. We think that it would be deleterious to the maintenance of the discipline if a person suspended on valid considerations is given full back wages as a matter of course on his acquittal. Two courses are open to the disciplinary authority, viz., it may enquire into the misconduct unless, the selfsame conduct was subject of charge and on trial the acquittal was recorded on a positive finding that the accused did not commit the offence at all; but acquittal is not on benefit of doubt given. Appropriate action may be taken thereon. Even otherwise, the authority may, on reinstatement after following the principle of natural justice, pass appropriate order including treating suspension period as period of not on duty (and on payment of subsistence allowance etc.). Rules 72(3), 72(5) and 72(7) of the Rules given discretion to the disciplinary authority. Rule 72 also applies, as the action was taken after the acquittal by which date the Rule was in force. Therefore, when the suspension period was treated to be a suspension pending the trial and even after acquittal, he was reinstated into service, he would not be entitled to the consequential benefits. As a consequence, he would not be entitled to the benefits of nine increments as stated in para 6 of the additional affidavit. He is also not entitled to be treated as on duty from the date of suspension till the date of the acquittal for purpose of computation of pensionary benefits etc. The appellant is also not entitled to any other consequential benefits as enumerated in paras 5 & 6 of the additional affidavit.
14. It must be borne in mind that vide order dated 18.03.2003 the punishment of censure was imposed upon the petitioner. It has not been called into question in these proceedings. It has attained finality. Succinctly stated the petitioner was not in actual service for the period in dispute. Acquittal does not automatically entitle him to get salary for that period. This is more so on logic of no work no pay. The respondent/department was well within its rights to deny back wages to the petitioner for the period he was not in service. The respondent/ department cannot be made liable to pay for the period for which it could not avail his services. This view neatly dovetails with authorities reported in Ranchhodji Chaturji Thakore v. Supdt. Engineer, Gujarat Electricity Board (1996) II SCC 603, Union of India v. Jaipal Singh and Baldev Singh v. Union of India .
15. The instant writ petition is meritless and is accordingly dismissed.