Central Administrative Tribunal - Ernakulam
T.P. Gopinath vs Union Of India (Uoi) And Ors. on 25 September, 2001
Equivalent citations: 2003(2)SLJ491(CAT)
JUDGMENT
A.V. Haridasan, Vice Chairman
1. The short question that calls for answer in this case is, when an officer placed under suspension during the investigation or trial in a criminal case is reinstated on acquittal by the competent criminal Court, without holding any disciplinary proceeding, can his pay and allowances for the period during suspension be denied to him. The applicant while working as a Telephone Inspector, Mattancherry, was placed under suspension under Rule 10(1) of the CCS (CCA) Rules with effect from 1.2.89 as a criminal case against him was under investigation. After investigation, the applicant was tried by the CBI Court, Ernakulam for offences punishable under Sections 7 and 13( I )(d) read with Section 13(2) of the Prevention of Corruption Act. The Trial Court convicted him for the aforesaid offences and sentenced him to undergo imprisonment for 2 years and to pay a fine of Rs. 2,000/- each under Sections 7 and 13( 1 )(d) read with Section 13(2) of the Act. The applicant carried the matter before the Hon'ble High Court of Kerala. The Hon'ble High Court, vide its judgment in Criminal Appeal No. 85/93, finding that the prosecution failed to prove the guilt of the applicant, acquitted him. On acquittal by the Hon'ble High Court, the applicant was reinstated in service by order dated 10.8.1998 (A-4) which was ratified by the third respondent, by order dated 11.9.98 (A-5). It was mentioned in A-5 order that the departmental enquiry was contemplated and that the regularisation of the period of suspension would be determined after finalisation of the departmental proceedings. However, no departmental proceeding was initiated against the applicant. The Principal General Manager issued a show cause notice (A-6) calling upon the applicant to state why the period of suspension should not be regulated in terms of the provisions contained in sub-paras 5 and 7 of FR 54-B. The applicant submitted A-7 representation stating that the applicant having been acquitted and no disciplinary proceeding against him was taken, the period should be treated as duty for all purposes including pay and allowances. The third respondent passed an order treating the period of suspension as duty solely for the purpose of qualifying service for pension (A-8). Aggrieved by that the applicant filed an appeal (A-9) before the second respondent. The second respondent disposed of the appeal by A-10 order holding that the period of suspension would be treated as duty only for the purpose of pension, but granted him intervening increments for the periods for pay fixation. Aggrieved by this, the applicant has filed this application seeking to set aside A-10 order declaring that the period from 1.2.89 to 10.8.98 as duty for all purposes and a direction to the respondents to refix the pay of the applicant, treating the suspension period as duty and disburse the pecuniary benefit with interest.
2. The respondents resist the claim of the applicant and have filed a detailed reply statement.
3. We have heard the learned Counsel on either side. That the applicant was placed under suspension solely for the reason that a criminal case was under investigation and trial and that the Hon'ble High Court acquitted the applicant of the offences, are not in dispute. The respondents resist the claim of the applicant solely on the ground that the acquittal of the applicant was not an honourable acquittal, but giving him the benefit of doubt and that as the competent authority has not decided that the suspension was not justified, the situation is covered by the provisions of Sub-rules 5 and 7 of FR 54 (B).
4. An identical question was considered by this Bench of the Tribunal to which one of us (Vice Chairman) was a party in A.J. John v. Superintendent of Post Offices and Ors., 1990(6) SLR 327. Following the ruling of the Apex Court in Brahma Chandra Gupta v. Union of India, (1984) 2 SCC 433, it was held that the applicant therein was entitled to full pay and allowances for the period of suspension. The factual situation in this case is similar. As the applicant was acquitted by the Hon'ble High Court not on technical grounds, but on merits, as the prosecution failed to establish the charge, there is no merit in the contention of the respondents that the acquitted was not an honourable acquittal. As the applicant was reinstated in service on his acquitted and no disciplinary proceedings was initiated against him, it is idle to contend that the competent authority did not decide that suspension was wholly unjustified and therefore, the applicant would not be entitled to full pay and allowances as provided for in FR 54-B (3).
5. Administrative Instruction Nos. G.I., M.F., O.M No. F. 15 (8)-E. IV/57 dated 28.3.1959 (see page 232 and 233 of Swamy's Compilation of FR SR Part-I, Fourth Edition), reads as follows:-
"(1) Regularizing of suspension during criminal proceedings, arrest or detention? The cases of suspension during pendency of criminal proceedings or proceeding for arrest for debt or during detention under a law providing for preventive detention, shall be dealt with in the following manner hereafter:-
(a) A Government servant who is detained in custody under any law providing for preventive detention or as a result of a proceeding either on a criminal charge or for his arrest for debt shall, if the period of detention exceeds 48 hours and unless he is already under suspension, be deemed to be under suspension from the date of detention until further orders as contemplated in the Central Civil Services (Classification, Control and Appeal) Rules. A Government servant who is undergoing a sentences for imprisonment shall also be dealt with in the same manner pending a decision on the disciplinary action to be taken against him.
(b) A Government servant against whom a proceeding has been taken on a criminal charge but who is not actually detained in custody (e.g., a person released on bail) may be placed under suspension by an order of the competent authority under the Central Civil Services (Classification, Control and Appeal) Rules. If the charge is connected with the official position of the Government servant or involving any moral tirpitude on his part, suspension shall be ordered under this rule unless there are exceptional reasons for not adopting this course.
(c) A Government servant against whom a proceeding has been taken for his arrest for debt but who is not actually detained in custody may be placed under suspension by an order under the Central Civil Services (Classification, Control and Appeal) Rules, i.e. only if a disciplinary proceeding against him is contemplated.
(d) When a Government servant who is deemed to be under suspension in the circumstances mentioned in Clause (a) or who is suspended in the circumstances mentioned in Clause (b) is reinstated without taking disciplinary proceedings against him, his pay and allowances for the period of suspension will be regulated under FR 54-B, i.e., in the event of his being acquitted of blame or (if the proceeding taken against him was for his arrest for debt) its being proved that his liability arose from circumstances beyond his control or the detention being held by any competent authority to be wholly unjustified the case may be dealt with under FR 54-B (3); otherwise it may be dealt with under proviso to FR 54-B (5)"
(Emphasis added)
6. In this case, as the applicant was acquitted of his blame and as on disciplinary proceedings has been taken according to the Government of India instruction quoted above, the relevant provision of FR dealing with regularising the period of suspension is FR 54-B (3) which reads as follows:
"(3) Where the authority competent to order reinstatement 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:
Provided that where such authority is of the 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 be paid for the period of such delay only such amount (not being the whole) of such pay and allowances as it may determine."
7. In the light of above facts and the legal position, the contention of the respondents that the provisions of FR applicable are 54-B (5) and (7) and that the applicant is not entitled to full pay and allowances for the period of suspension is untenable.
8. In view of what is stated above, following the dictum in the above said ruling of the Tribunal as also of the Apex Court, we allow the application, set aside the impugned order A-10 and direct the respondents to refix the pay of the applicant treating the period 1.2.89 to 10.8.98 as duty for all purposes and to disburse to the applicant the entire pay and allowances for the said period. Now that the applicant voluntarily retired from service, we direct the respondents to refix the retirement benefits of the applicant also accordingly. The above direction shall be complied with within a period of three months from the date of receipt of copy of this order. There is no order as to costs.