Central Administrative Tribunal - Delhi
Shri Charan Singh vs Union Of India Through on 27 April, 2015
Central Administrative Tribunal Principal Bench, New Delhi O.A. No.328 of 2012 Orders reserved on : 13.4.2015. Orders pronounced on : 27.04.2015. Honble Mr. G.George Paracken, Member (J) Honble Mr. Shekhar Agarwal, Member (A) Shri Charan Singh S/o Shri Shukhan Singh, EX-PWI (Construction) R/o House No.229, Shrinagar, Geeta Marg, Hapur, District Ghaziabad (U.P.) Applicant (By Advocate: Shri H.K. Bajpai for Mrs. Meenu Mainee) Versus Union of India through: 1. General Manager, Northern Railway, Baroda House, New Delhi. 2. Chief Administrative Officer (Const.) Northern Railway, Kashmiri Gate, Delhi. 3. Deputy Chief Engineer (Construction)-I (through D.R.M. N.W. Railway,) North-West Railway, Bikaner (Raj). 4. Deputy Chief Engineer (Const.) Through D.R.M., N.R. Jodhpur, Northern Railway, Jodhpur. 5. Divisional Railway Manager Northern Railway, Moradahad. Respondents (By Advocate: Shri V.S.R. Krishna) ORDER (ORAL) SHRI G. GEORGE PARACKEN, MEMBER (J) :
The applicants grievance is that the intervening period from the date of his removal from service i.e. 13.6.1984 to the date of his superannuation i.e. 30.6.1989, has not been taken into consideration by the respondents for the purpose of payment of salary and allowances as well as for pensionary benefits even though they have treated the aforesaid period for the purpose of computation of pension.
2. Brief facts of the case: While the applicant was in service, he was facing a corruption case on 26.7.1979 and a Challan was filed against him in the Court of Civil Judge u/s 151 IPC read with sections 5(1)(d) and 5(2) of Prevention of Corruption Act. He was convicted by the Special Judge CBI Jaipur vide judgment dated 22.3.1984 and was sentenced to undergo one years rigorous imprisonment u/s 161 IPC with fine of Rs.300. Thereafter, he was removed from service on 13.6.1984. Subsequently an appeal against the aforesaid judgment of the Special Judge was filed and it was allowed by the Honble High Court on 31.3.1998. The relevant part of the said judgment reads as under:-
10. In the instant case from the evidence referred to above, the defence of the accused has been clearly proved under Section 3 of the Evidence Act. The testimony of decoy has been shattered in the cross examination. It could not be established that the accused had authority to abolish the gang and that he even threatened to abolish the gang on August 14, 1979. He admitted in his cross examination that there were about 20 persons in the gang and no person from the gang was produced as a witness to establish that the accused had threatened to abolish the gang. It does not appear reasonable that the accused demanded Rs. 250/- from Tula Ram only for abolishing the gang of 20 persons on the whole, therefore, I am satisfied that there is considerable room for doubt in this case and that the statement of Tula Ram which alone is the foundation of the charge against the accused can not be accepted without corroboration.
11. Consequently, the appeal succeeds and is hereby allowed the conviction of the accused appellant stands set aside and he is acquitted from the charge under Section 161 IPC and Section 5(I (d) read with Section 5(2) of the Prevention of Corruption Act, 1947. He is on hail. His bail bonds are cancelled. If fine has been paid by the accused appellant, it shall be refunded to him. Record of the case be sent back. Thereafter, he filed an appeal dated 5.9.2000 against the aforesaid order of the Disciplinary Authority dated 13.6.1984 and requested the respondents to treat the intervening period as spent on duty for all purposes, including full back wages under FR-54. The Appellate Authority, vide order dated 3.12.2010, rejected his appeal on the ground that the acquittal was on the basis of benefit of doubt. The applicant challenged the aforesaid order before the Single Bench of the Honble High Court of Rajasthan vide Writ Petition No.9196/2002 but it was dismissed vide order dated 5.9.2006. The relevant portion of the said Order reads as under:-
After having considered and gone through the application dated 5.8.2000 along with all relevant papers/facts including judgment dated 31.3.98 of this Court, various rules and regulation of Railway Administration had passed the following speaking orders:
The period from the date of removal till date of judgment given by the High Court, Jaipur/date of superannuation, whichever is earlier, will be treated in accordance with sub para 2 of para 1344 (FR-54-A) of the Indian Railways Establishment Code treating this period as suspension, all benefits including retirement benefits and pension etc. as due will be fixed and paid accordingly. With condition that the appeal of above lies with the Chief Engineer/Cinst. West, Kashmere Gate, Delhi. You may appeal within 15 days of issue of this order/letter if you desire so vide letter No.1-E/dy.CE(C) BKN/C-III/CS dated 4.9.2000.
Thus, having considered the rival submissions of the respective parties and upon careful perusal of the Indian Railway Establishment Code as well as the relevant provisions of law, and the ratio decided by Honble the Supreme Court, since the payment of the Provident Fund, Leave Encashment, OIS and DCRG has already been paid to the petitioner and nothing wrong committed by the respondent and thus the petitioner is not legally entitled to ask for full salary from 13.6.1984 to 30.6.1989 till his superannuation along with grade increment that have fallen due during the aforesaid period and since the payment of the pension already made to the petitioner, he is not entitled to fully salary.
Consequently, the writ petition fails being devoid of merit and same is hereby dismissed with no orders as to costs.
3. The applicant has challenged the aforesaid Order before the Division Bench of the High Court and the Division Bench vide its Order dated 21.1.2008 in D.B. Special Appeal (Writ) No.1224/2006 held that High Court has no jurisdiction in the matter whereas jurisdiction lies with the Central Administrative Tribunal. The operative part of the said Order reads as under:-
On scrutiny of the materials on record, it appears that the appellant may have a case before the Central Administrative Tribunal but in no way, the writ could have been entertained and merely because the writ was entertained and admitted but was dismissed on merit, in no way confer any right upon the appellant to invoke writ jurisdiction of this Court.
At last, learned counsel argued that since the matter remained pending before this Court for several years, appellant should not be asked to avail the alternative before the Central Administrative Tribunal. The contention of learned counsel appears to be wholly misconceived, inasmuch as there is no question of alternative remedy, rather it is a question of inherent lack of jurisdiction of this Court to entertain such grievances which are covered under the provisions of the Act of 1985.
This issue pertaining to the provisions of Act of 1985 thus, in no way or in no manner, can be entertained by this Court ousting the jurisdiction of the Central Administrative Tribunal. The Court having been faced with the situation of inherent jurisdiction. Therefore, is not inclined to interfere in the matter.
The appeal is accordingly dismissed.
4. Thereafter, the applicant approached this Bench of the Tribunal vide OA No.2597/2008 and this Tribunal, vide its Order dated 29.5.2009, allowed the same and directed the respondents to treat the period from the date of his removal from service till his attaining the age of superannuation i.e. 30.9.1989 as a period spent on duty. The operative part of the said Order reads as under:-
19. Resultantly, OA is allowed. Impugned orders are set aside. Respondents are directed to treat the period from the date of removal of the applicant till his attaining the age of retirement on superannuation, i.e., 30.6.1989, as spent on duty. Accordingly, pay and allowances for that period shall be released to him within a period of three months from the date of receipt of a copy of this order. It goes, however, without saying that if any change takes place in his retiral dues on account of this payment, applicant shall also be entitled for it. No costs.
5. The respondents challenged the aforesaid Order of this Tribunal before the Honble High Court of Delhi vide Writ Petition (Civil) No.13970/2009 and the High Court, vide its Order dated 19.8.2010, passed a consent order with the direction to the disciplinary authority to proceed to pass a reasoned and speaking order after giving an opportunity of oral hearing to the applicant and order so passed should deal with, as to how would the period in question be treated for the purpose of pay and allowances. The High Court has also observed that for the purpose of pensionary benefits the period has already been treated as spent on duty.
6. Thereafter, the parties approached the Deputy Chief Engineer/Construction-I, Northern Railway, Bikaner, for compliance of the aforesaid directions of the High Court and the respondents passed the impugned order dated 3.12.2010 addressed to the applicant stating that his request was considered by the Deputy Chief Engineer/Const-I in terms of Railway Board letter No.F(E)III/2004/PN 1/22 dated 09.03.2010, it is stipulated in Rules 49 and 50 of the Railway servants (Pension) Rules 1993 corresponding to Rules 33 and 34 of the CCS (Pension) Rules, 1972 that the emoluments actually drawn by a Railway servant immediately before his retirement can alone be taken into account for determining pensionary benefits. Further, it was stated that the period from the date of removal till 30.06.1989 (i.e. till the date of attaining the age of superannuation/retirement) would be counted only for Performa fixation for pensionary benefits. While passing the aforesaid order, the Dy. Chief Engineer/Const-I considered the submission of the respondents. The aforesaid letter dated 3.12.2010 is reproduced as under:-
Honble High Court New Delhi passed the following orders in WP(C) No.13970/2009 Union of India & Ors. V/s Charan Singh.
The consent is that nothing stated by the Tribunal and neither by us would be construed as a reflection on the merits of the controversy and that the disciplinary authority would proceed to pass a reasoned and a speaking order after giving an opportunity of oral hearing to the respondent. The order would deal as to how would period in question be treated for purposes of pay and allowances. We note that for purposes of pensionary benefits the period has been treated as spent on duty. In compliance of the order, a joint meeting between Sh. Charan Singh and Administration has been conducted on 03.12.2010 in the chamber of Dy. Chief Engineer/Const-I/North Western Railway, Bikaner. Sh. Charan Singh Ex. PWI/C is claiming to claiming to set aside the order passed by Dy. CE/C-I/N.Rly. Jodhpur vide No.1-E/Dy.CE/C/BKN0-111/CS dt. 04.09.2010 and requested to treat the period from the date of removal till the date of attaining the age of superannuation retirement i.e. 30.06.1989 as Spent on duty. The pay & allowance for that period may be ordered to be released accordingly.
Administration stated that in terms of Railway Board letter No.F(E)III/2004 PN-1/22 dt. 09.03.2010 it is clarified that the position stipulated in rules 33 and 34 of CCS (Pension) Rules, 1972 may be taken into account for the purpose of computation of emoluments and average emoluments. Rules 33 and 34 of CCS (Pension) Rules, 1972 correspond to Rules 49 and 50 of a Railway Services (Pension) Rules 1993 in terms of which the emoluments actually drawn by a Railway servant immediately before his retirement can alone be taken into account for determining pensionary benefits.
Payment of settlement dues if due will be paid as per rule. The period from the date of removal till 30.06.1989 (ie till the date of attaining the age of superannuation/retirement) would be counted only for Performa fixation for pensionary benefits. These orders are issued after application of mind and good faith and according to the rules, without prejudice.
8. Thereafter, the Deputy Chief Engineer/Const.I vide his letter dated 22.6.2011 requested to the Chief Engineer to take up the matter with DRM/Moradabad at HQ office level for early submission of service book and leave account so that the order may be complied early. The relevant part of the said Order reads as under:-
In compliance of the order in a joint meeting in terms of Railway Board letter no.F(E)111/2006/PN-1/22 dt. 09.03.2010, Administration has considered that the emoluments actually drawn by a Railway servant immediately before his retirement can alone be taken in account for determining pensionary benefits. Accordingly speaking order has been issued vide this office letter of even no. dated 03.12.2010 (copy enclosed). So to comply the order of Honble High Court New Delhi, Sr. Divl. Personnel Officer/Northern Railway Moradabad where the employee holds his lien has been requested to send the service, leave account vide this office letter of even no. dt. 07.12.2010 and reminder dt. 04.02.11, 14.02.11, 04.03.11, 31.03.11 & 30.05.11. The service book & leave account was sent to Sr.DPO/NR/Moradabad vide this office letter No.49-E/XEN/C/BKN/Charan Singh dt. 14.01.2002 under the clear acknowledgement of Sh. Manohar Lal Head Clerk on 17.01.2002.
But the service book and leave account of Sh. Charan Singh, Ex. PWI/C/SOG not yet been provided by Sr.DPO/NR/Moradabad. Due to delay in compliance of Honble High court New Delhi order dated 19.08.10 Sh. Charan Singh is pressing hard to get the order complied at earliest and on failure the applicant Sh. Charan Singh Ex. PWI/C/SOG has intimated that being there is no other alternate he will be bound to take the shelter of Honble High Court New Delhi.
Therefore, it is requested to kindly take up matter with DRM/Marodabad at HQ office level for early submission of service book and leave account so that the order may be complied early.
7. According to the learned counsel for the applicant, the respondents have not counted the intervening period even for computing his terminal benefits when they themselves have counting the intervening period as period spent on duty, they could not have treated the said period for purpose of computing the pension alone but they were required to count it for the purpose of pay and allowances also.
8. This case has been pending before this Tribunal from 2.11.2011. In this case PT No.226/2011 has been filed by the applicant to retain it before the Bench as the applicant is a resident of the adjoining district of Gaziabad and he has retired from the office of the Deputy Chief Engineer (Construction), Northern Railway, Bikaner, Rajasthan. The said PT was allowed vide Order dated 21.1.2012 as the respondents counsel Shri V.S.R. Krishna reported no objection. Therefore, notice was issued to the respondents on 10.2.2012 returnable on 26.3.2012. Thereafter, several adjournments were sought by the respondents counsel but no reply was filed during the last over three years. However, the learned counsel for the respondents, Shri V.S.R. Krishna has agreed to hear the matter without any reply but reiterating the decision taken by respondent no.3 vide its impugned letter dated 3.12.2010.
9. We have heard the learned counsel for the applicant and the learned counsel for the respondents. We have also perused all the documents available on record. Admittedly, applicants conviction by the Special Judge, CBI was set aside and he was acquitted by the Honble High Court of Rajasthan vide judgment dated 31.3.1998 observing as under:-
In the instant case from the evidence referred to above, the defence of the accused has been clearly proved under Section 3 of the Evidence Act. The testimony of decoy has been shattered in the cross examination. It could not be established that the accused had authority to abolish the gang and that he even threatened to abolish the gang on August 14, 1979.
10. Thereafter, as the applicant in the meanwhile has already attained the age of superannuation on 30.6.1989, the respondents themselves vide their letter dated 3.12.2010 have treated the period from the date of removal from service, i.e., 13.6.1984 to 30.6.1989 to be counted for performa fixation of pensionary benefits. According to the applicant, the aforesaid decision has also not been implemented so far. However, the prayer of the applicant in the TA is to direct the respondents to count the aforesaid intervening period as duty for all purposes including arrears of pay and allowances. The respondents have not given any reasons as to why the aforesaid period cannot be counted accordingly. In the impugned order, they have only stated that for computation of pension, Rules 49 and 50 of the Railway Service Pension Rules, 1993 have to be followed and the pension of the Railway servant shall be computed on the basis of last pay drawn. The said Rules 49 and 50 provides as under:-
49. Emoluments: - The expression - (a) emoluments, for the purpose of calculating various retirement and death benefits, means the basic pay as defined in clause (i) of rule 1303 of the Code which a railway servant was receiving immediately before his retirement or on the date of his death:
Provided that the stagnation increment shall be treated as emolument for calculation of retirement benefits;
(b) pay in these rules means the pay in the revised scales under the Railway Services (revised pay) Rules, 1986;
Provided that pay element of Running Staff shall also include fifty-five per centum of the basic pay for reckoning emoluments.
Note 1. : If a railway servant immediately before his retirement or death while in service had been absent from duty on leave for which leave salary is payable or having been suspended had been reinstated without forfeiture of service, the emoluments which he would have drawn had he not been absent from duty or suspended shall be the emoluments for the purposes of this rule:
Provided that any increase in pay (other than the increment referred to in Note 4) which is not actually drawn shall not form part of his emoluments.
Note 2. : Where a railway servant immediately before his retirement or death while in service had proceeded on leave for which leave salary is payable after having held a higher appointment. Whether in an officiating or temporary capacity, the benefit of emoluments drawn in such higher appointment shall be given only if it is certified that the railway servant would have continued to hold the higher appointment but for his proceeding on leave.
Note 3. : If a railway servant immediately before his retirement or death while in service had been absent from duty on extraordinary leave, or had been under suspension, the period whereof does not count as service, the emoluments which he drew immediately before proceeding on such leave or being placed under suspension shall be the emoluments for the purposes of this rule.
Note 4. : If a railway servant immediately before his retirement or death while in service, was on earned leave and earned an increment which was not with-held, such increment though not actually drawn, shall form part of his emoluments:
Provided that the increment was earned during the currency of the earned leave not exceeding one hundred and twenty days, or during the first one hundred and twenty days of earned leave where such leave was for more than one hundred and twenty days.
Note 5. : Pay drawn by a railway servant while on deputation to the Armed Forces of India shal be treated as emoluments.
Note 6. : Pay drawn by a railway servant while on foreign service shall not be treated as emoluments, but the pay which he would have drawn under the railway, had he not been on foreign service shall alone be treated as emoluments.
Note 7. : Where a pensioner who is re-employed in railway service elects in terms of clause (a) of sub-rule (1) of rule 33 or clause (a) of sub-rule (1) of rule 34 to retain his pension for earlier service and whose pay on re-employment has been reduced by an amount not exceeding his pension, the element of pension by which his pay is reduced shall be treated as emoluments.
Note 8. : Where a railway servant has been transferred to an autonomous body consequent on the conversion of Department of the Railways into such a body and the railway servant so transferred opts to retain the pensionary benefits under the rules of the railway, the emoluments drawn under the autonomous body shall be treated as emoluments for the purpose of this rule. 50. Average emoluments-Average emoluments shall be determined with reference to the emoluments drawn by a railway servant during the last ten months of his service.
Note 1. : If during the last ten months of his service a railway servant had been absent from the duty on leave of which leave salary is payable or having been suspended had been reinstated without forfeiture of service, the emoluments which he would have drawn, had he not been absent from duty or suspended, shall be taken into account for determining the average emoluments:
Provided that any increase in pay (other than the increment referred to in Note 3) which is not actually drawn shall not form part of his emoluments.
Note 2. : If during the last ten months of his service, a railway servant had been absent from duty on extraordinary leave, or had been under suspension the period whereof does not count as service, the aforesaid period of leave or suspension shall be disregarded in the calculation of the average emoluments and equal period before the ten months shall be included.
Note 3. : In the case of a railway servant who was on earned leave during the last ten months of his service and earned an increment, which was not withheld, such increment, though not actually drawn shall be included in the average emoluments;
Provided that the increment was earned during the currency of the earned leave not exceeding one hundred and twenty days, or during the first one hundred and twenty days of earned leave where such leave was for more than one hundred and twenty days.
11. The aforesaid rules have nothing to do with counting the intervening period as duty or not. They are only rules concerning computation of emoluments/average emoluments for the purpose of determining the pension and other terminal benefits.
12. According to the order of the High Court dated 31.3.1998 passed in applicants appeal against the order of the Special Judge, he has been exonerated on benefits of doubt. Accordingly the appeal has been allowed and conviction of the applicant was set aside and acquitted him from the charges. According to the provisions contained in Rule 1343 of Indian Railway Establishment Code Vol. II, which deals with the counting of the said intervening period for the purpose of duty only in cases where the Railway servant is fully exonerated in the criminal case will 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. Resultantly, 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. The aforesaid rules are reproduced as under:-
1343 (F.R.54).--(1) When a railway servant who has been dismissed, removed or compulsorily retired is re-instated as a result of appeal or review or would have been so reinstated but for his retirement on superannuation while under suspension preceding the dismissal, removal or compulsory retirement, the authority competent to order reinstatement shall consider and make a specific order-
(a) regarding the pay and allowances to be paid to the railway 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 re-instatement is of opinion that the railway servant who had been dismissed, removed or compulsorily retired has been fully exonerated the railway 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 railway servant had been delayed due to reasons directly attributable to the railway servant, it may, after giving him an opportunity to make his representation and after considering the representation, if any, submitted by him, direct, for reasons to be recorded in writing, that the railway servant shall, subject to the provisions of sub-rule (7), be paid for the period of such delay only such amount 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 (2) of Article 311 of the Constitution and no further inquiry is proposed to be held) the railway servant shall, subject to the provisions of sub-rules (6) and (7), be paid such amount 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 railway 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 60 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 the 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 so treated for any specific purpose; provided that if the railway 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 railway servant.
NOTE:-- The order of the competent authority under the preceding proviso shall be absolute and no higher sanction shall be necessary for the grant of
(a) extraordinary leave in excess of three months in the case of temporary railway servant; and
(b) leave of any kind in excess of five years in the case of permanent railway servant.
(6) The payment of allowances under Sub-rule(2) or sub-rule (4) shall be subject to all other conditions under which such allowances are admissible.
(7) The amount determined under the proviso of sub-rule (2) or under sub-rule (4) shall not be less than the subsistence allowance and other allowances admissible under Rule 1342 (F.R. 53).
(8) Any payment made under this rule to a railway servant on his re-instatement 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 re-instatement. 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 railway servant. 1344 (F.R. 54 A).--(1) where the dismissal, removal or compulsory retirement of a railway servant is set aside by a Court of law and such Government servant is reinstated without holding any further inquiry, the period of absence from duty shall be regularized and the Government servant shall be paid pay and allowances in accordance with the provisions of sub-rule (2) or (3) subject to the directions, if any, of the court.
(2) (i) Where the dismissal, removal or compulsory retirement of a railway servant is set aside by the court solely on the ground of non-compliance with the requirements of clause (1) or clause (2) of Article 311 of the Constitution, and where he is not exonerated on merits, the Government servant shall, subject to the provisions of sub-rule (7) of Rule 1343 (FR 54), 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 railway 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.
(3) If the dismissal, removal or compulsory retirement of a railway servant is set aside by court on the merits of the case, the period intervening between the date of dismissal, removal or compulsory retirement including the period of suspension preceding, such dismissal, removal or compulsory retirement, as the case may be, and the date of reinstatement shall be treated as duty for all purposes and he shall be paid the full pay and allowances for the period, to which he would have been entitled, had he not been dismissed, removed or compulsory retired or suspended prior to such dismissal, removal or compulsory retirement, as the case may be.
(4) The payment of allowances under sub-rule (2) or sub-rule (3) shall be subject to all other conditions under which such allowances are admissible.
(5) Any payment made under this rule to a railway 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 dismissal, removal of compulsory retirement and the date of reinstatement. Where the emoluments admissible under this rule are equal to or less than those earned during the employment elsewhere nothing shall be paid to the Government servant.
13. As regards issue of honourable acquittal or acquittal on benefits of doubt, this Tribunal has held in the case of R.K. Gupta vs. Union of India and others (OA No.1706/2004) 2005 (3) AISLJ (CAT) 390 that the said concepts are alien terms in Cr.P.C.. The relevant part of the said judgment reads as under:-
17. As regards issue of honourable acquittal or acquittal on benefit of doubt these are alien terms in Cr.P.C. An acquittal is an acquittal for the purpose of a criminal case and to this effect Punjab and Haryana High Court in Shashi Kumar (supra) made the following observations:-
7. In any event, the terms acquittal or fully exonerated 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, AIR 1960 Madras 325. Rajannar, C.J. delivering the judgment of the Division Bench observed as under:-
There is on conception like acquittal in Criminal P.C. The onus of establishing the guilt of accused is one the prosecution, and if it fails to establish the guild 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 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 the general law, to the full pay during the period of the suspension. To such a case Article 193 (b) does not apply.
14. In the judgment in the case of Mohan Lal vs. Union of India and others, 1982 (1) SLR 573, the Apex Court has held as under:-
6. It is a mandatory requirement of F.R. 54(3) that period spent on suspension should be treated as a period spent on duty for all purposes when a delinquent servant is fully exonerated and his order of dismissal, removal or compulsory retirement is set aside. On plain reading, F.R. 54(3) is not applicable to the present case. The term fully exonerated is not defined or explained in the Fundamental Rules. Fundamental Rules 54(4) throws some light on the concept of full exoneration. The said rule provides that if a Government servant is exonerated for non-compliance with requirements or clause (2) of Article 311 of the Constitution, the Government mentioned therein, to pay an amount smaller then the fully pay. The spirit of the provisions appears to be that if a delinquent servant is exonerated merely for non compliance of the technical procedural Rules and is not exonerated on merits, he is not entitled to full pay. Even assuming that the petitioner was acquitted on benefit of doubt, it cannot be said that he is acquitted for non-compliance with the technical Rules of procedure. Indeed, in criminal law an acquittal on benefit of doubt is a complete acquittal on merits. Reasoning of the D.I.G. is contrary to law. The state did not prefer an appeal against the order of acquittal by the Magistrate. Therefore, the judgment of acquittal has become final. It means that the acquittal on merits has become final. If it was a mere case of a doubt according to the strict requirement of rules in a criminal trial, the petitioner could have been proceeded against departmentally. Technical rules of evidence are applicable to departmental proceedings. The petitioner was charged under section 294 of the I.P.C. Indecent behaviour with woman is certainly a conduct unbecoming of a Government servant. But it appears that the respondents were convinced that there is no sufficient evidence to hold that the conduct of the petitioner was unbecoming of a Government servant. By inference one can reach this conclusion, as no departmental proceeding was held against the petitioner. The impugned order was passed by the D.S.P. within four months of his acquittal. The impugned order cannot be justified under F.R. 54(1) (2) (3) or (4).
15. The Railway Board vide circular No.RBE 127/85 dated 29.4.1985 has also issued similar instructions in this regard. The said Circular is reproduced as under:-
R.B.E. No.127/85Subject: Regularisation of the intervening period from the date of suspension/dismissal, etc., to the date of reinstatement in case of acquittal.
No.E(D&A) 84RG 6-26, dated 29.4.1985 Attention is invited to the instructions contained in Railway Boards letter No.E(D&A) 69RG6-48 dated 5.9.1970 and endorsement No.E(D&A) 76RG6-62. dated 8.7.1980 on the subject.
2. It has been represented to the Railway Board that in cases of acquittal by a Court of Law there is no such thing as clear or honourable acquittal and that even if the acquittal is on benefit of doubt the entire period from the date of suspension preceding the date of suspension preceding the date of dismissal/removal/compulsory retirement to the date of resumption should be treated as duty with full pay and allowances.
3. The Department of Personnel has been consulted and it is clarified that while a distinction can be made between cases in which a court sets aside an order passed by an authority on technical grounds like failure to follow the prescribed procedure, and a case in which a person is acquitted by a Court; in cases of acquittal themselves, no further distinction is possible as honourable acquittal or otherwise. An acquittal by a Court is acquittal from the charges framed against the accused and it has to be treated as such. In the circumstances, cases of acquittal by a Court of Law should be viewed as such and they should be distinguished from cases in which Courts set aside orders of Government on technical grounds like failure to follow the prescribed procedure, failure to fulfit the requirements of Article 311 of the Constitution, etc.
4. Cases of reinstatement following acquittal by a Court of Law, may be dealt with under relevant Sub rules (2), (3), (6) and (8) of Rule 2044 (FR-54) of the Indian Railway Establishment Code Vil. II, keeping the above observation in view.
12. In view of the aforesaid rules/legal position, this OA is allowed. The respondents are, therefore, directed to count the period between the date of removal of the applicant from service and the date of his retirement from service, i.e. 13.6.1984 to 30.6.1989 for all purposes including pay and allowances, redetermination of pensionary benefits etc. The respondents shall also fix the pay of the applicant accordingly from time to time from the date of removal from the date of suspension by granting the annual increments due. If any of the junior of the applicant has been promoted in the meanwhile, he shall also be considered for such promotion on notional basis from the date his junior has been promoted. His pensionary benefits shall also be redetermined on the basis of the revised last pay/average pay of the last 10 months drawn. The respondents shall pass reasoned and speaking order in this regard within one month from the date of receipt of this order and disburse the monetary benefits arising in this matter within one month thereafter. There shall be no order as to costs.
(SHEKHAR AGARWAL) (G. GEORGE PARACKEN)
MEMBER (A) MEMBER (J)
/ravi/