Madhya Pradesh High Court
Dr. C.V. Laghate vs The State Of Mp on 16 September, 2019
Author: Sanjay Yadav
Bench: Sanjay Yadav
THE HIGH COURT OF MADHYA PRADESH
WA.1493.2019
[Dr. C.V. Laghate Vs. State of M.P. and others]
1
Gwalior, Dated:-16/09/2019
Shri O.P. Saxena, learned counsel for the appellant.
Shri Pratip Visoriya, learned Government Advocate for
respondent/State.
This appeal under Section 2(1) of Madhya Pradesh Uchcha Nayalaya (Khand Nyayapeeth Ko Appeal) Adhiniyam, 2005, is directed against the order dated 26.07.2019 passed in Writ Petition No.1356/2017.
The writ petition was directed against the order dated 08.12.2016 and for direction to:
"(i) release all the annual grade increments to the petitioner after regularizing the periods of suspension.
(ii) refix his pay in all the pay revisions from time to time after sanctioning of 2nd Time bound pay and
(iii) release his revised PPO within 1 month and
(iv) make payment of arrears accruing on account of (i) & (ii) above with interest @ 18% from the date the amounts were due to the date the payment is actually made."
The impugned order dated 08.12.2016 was a communication; whereby, the petitioner was informed that the period of suspension for the period from 05.08.2013 to 29.06.2014 shall be treated suspension and on the principle of 'no work no pay' the petitioner shall be entitled only for suspension allowance. As regard to the period from THE HIGH COURT OF MADHYA PRADESH WA.1493.2019 [Dr. C.V. Laghate Vs. State of M.P. and others] 2 26.11.2003 to 30.11.2006 the petitioner was informed that the period of suspension shall be subject to final outcome of appeal preferred against his acquittal.
Relevant facts leading to controversy in nutshell are that the petitioner was trapped by the Lokayukta on 19.11.2003 and was kept in judicial custody for over 48 hrs., which led to his automatic suspension w.e.f. 25.11.2003 under Rule 9(2) of the M.P. Civil Services (Classification, Control & Appeal) Rules, 1966. The petitioner remained under suspension till he was acquitted on 18.09.2006. The suspension was revoked vide order dated 01.12.2006. As regards as to how the suspension period was to be treated the same was reserved till decision in Cr.A.503/2007. The petitioner did not question this order during his service. Later in contemplation of the departmental enquiry initiated against the petitioner he was suspended on 05.08.2013. The suspension was however revoked on 29.06.2014. The departmental enquiry was dropped on 20.07.2016. The period of suspension was treated as suspension with the direction that it will be counted for the purpose of pension. The petitioner retired from service on attaining the age of superannuation on 30.06.2014. After retirement, he filed the petition, seeking direction referred supra.
Learned Single Judge disposed of the petition in the following terms:
THE HIGH COURT OF MADHYA PRADESH WA.1493.2019 [Dr. C.V. Laghate Vs. State of M.P. and others] 3 "From the bare reading of F.R.-54, it is apparently clear that the starting words are that the employee should be dismissed, removed or compulsorily retired, but in the present case the petitioner was only placed under suspension. There was no termination of services of the petitioner. Thus, F.R.-54 is not applicable in the case of the petitioner. However, FR 53 is applicable in the case of the petitioner for which necessary action was taken by the respondents/authorities and subsistence allowance of the suspension period was paid to the petitioner and his period of suspension was counted for post retiral purposes. Thus, as far as the relief claimed by the petitioner for applying FR 54 is concerned, no case is made out. As it is already held by this Court that FR 54 is not applicable in the case of the petitioner. The case law relied upon by the petitioner are of no help to him in the present facts and circumstances of the case as they relate to termination or dismissal from service.
As far as consideration regarding grant of second time bound pay, the matter is pending consideration before the authorities. The petitioner is directed to file a fresh representation before the authorities within seven working days and in turn the respondents/authorities are directed to consider the representation of the petitioner and decide the same as expeditiously as possible preferably within a period of one month from the date of communication of the order and pass a self contained speaking order and if the petitioner is found entitled for the aforesaid benefit the same may be extended to him within a further period of two months and accordingly the revised fixation be done within the aforesaid period."
The question as to how the period of suspension from 26.11.2003 to 30.11.2006, where the suspension is because of the criminal prosecution, on its revocation after acquittal of the Government Servant is to be treated, is governed by Rules, viz., Fundamental Rule 54 B. Sub-rules (1), (3) and (8) of FR 54 B are relevant in the context. These sub-rules stipulate:
THE HIGH COURT OF MADHYA PRADESH WA.1493.2019 [Dr. C.V. Laghate Vs. State of M.P. and others] 4 "F.R. 54-B. (1) When a Government servant who has been suspended is re-instated or would have been so reinstated but for his retirement on superannuation while under suspension, the authority competent to order reinstatement shall consider and make specific order-
(a) regarding the pay and allowances to be paid to the Government servant for the period of suspension ending with re-instatement or the date of his retirement on superannuation, as the case may be, and
(b) whether or not the said period shall be treated as a period spent on duty.
(3) Where the authority competent to order re-
instatement 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 reason directly attributable to the Government servant it may, after giving him an opportunity to make his representation [within 60 days from the date on which the communication in this regard is served in 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.
(8) The payment of allowances under sub-rule (2), sub-
rule (3) or sub-rule (5), shall be subject to all other conditions under which such allowances are admissible. Sub-Rule (1) obligates the competent authority in case where Government servant who was suspended is reinstated to make a specific order (i) regarding pay and allowances to be paid to Government servant for the period of suspension ending with THE HIGH COURT OF MADHYA PRADESH WA.1493.2019 [Dr. C.V. Laghate Vs. State of M.P. and others] 5 reinstatement (ii) whether or not the said period shall be treated as a period spent on duty. The decision to be taken under sub-rule (1) is bridled with the decision required to be taken under sub-rule (3), i.e., where the suspension is held to be wholly unjustified, then the government servant is entitled for full pay and allowance subject to provisions of sub-rule (8). In other words even executive instructions issued to that effect will hold the field when it comes to payment of full pay and allowances. Whereas sub-rule (1) and sub-rule (3) makes a provision regarding pay and allowances to be paid in the events mentioned therein. Sub-rule 8 provides for payment of allowances contains under which such allowances are payable.
However, in a case where the suspension is held to be wholly justified, an employee will not be benefited of sub-rule (3) and sub- rule (8) of FR 54 B. In such circumstances, the petitioner is not benefited.
Sub-rule (3) of F.R. 54-B cast the discretion in the competent authority to form an opinion whether the suspension of a government servant is wholly unjustified.
THE HIGH COURT OF MADHYA PRADESH WA.1493.2019 [Dr. C.V. Laghate Vs. State of M.P. and others] 6 In the case at hand, the petitioner was placed under suspension not because of the pending departmental enquiry nor in contemplation of a departmental enquiry. The suspension was because of institution of criminal case followed by criminal prosecution, such a suspension has been held to be a statutory suspension. In Union of India v. Rajiv Kumar (2003 AIR SCW 3507) it is held:
"15. Rule 10 (2) is a deemed provision and creates a legal fiction. A bare reading of the provision shows that an actual order is not required to be passed. That is deemed to have been passed by operation of the legal fiction. It has as much efficacy, force and operation as an order otherwise specifically passed under other provisions. It does not speak of any period of its effectiveness. Rules 10(3) and 10(4) operate conceptually in different situations and need specific provisions separately on account of interposition of an order of Court of law or an order passed by the Appellate or reviewing authority and the natural consequences inevitably flowing from such orders. Great emphasis is laid on the expressions "until further orders" in the said sub-rules to emphasise that such a prescription is missing in Sub-rule (2). Therefore, it is urged that the order is effective for the period of detention alone. The plea is clearly without any substance because of Sub-rule 5(a) and 5(c) of Rule
10. The said provisions refer to an order of suspension made or deemed to have been made. Obviously, the only order which is even initially deemed to have been made under Rule 10 is one contemplated under Sub- rule (2).The said provision under Rule 10(5)(a) makes it crystal clear that the order continues to remain in force until it is modified or revoked by an authority competent to do so while Rule 10(5)(c) empowers the competent authority to modify or revoke also. No exception is made relating to an order under Rules THE HIGH COURT OF MADHYA PRADESH WA.1493.2019 [Dr. C.V. Laghate Vs. State of M.P. and others] 7 10(2) and 10(5)(a). On the contrary, specifically it encompasses an order under Rule 10(2). If the order deemed to have been made under Rule 10(2) is to loose effectiveness automatically after the period of detention envisaged comes to an end, there would be no scope for the same being modified as contended by the respondents and there was no need to make such provisions as are engrafted in Rule 10(5)(a) and (c) and instead an equally deeming provision to bring an end to the duration of the deemed order would by itself suffice for the purpose."
And are held to be justified even when the employee/accused is exonerated of charges and acquitted (Please see 1968 MPLJ 49 and
466).
In Ranchhodji Chaturji Thakore vs. Superintendent Engineer, Gujarat Electricity Board, Himmatnagar (Gujarat) & another it is held:
"3. The reinstatement of the petitioner into the service has already been ordered by the High Court. The only question is whether he is entitled to back wages. It was his conduct of involving himself in the crime that was taken into account for his not being in service of the respondent. Consequent upon his acquittal, he is entitled to reinstatement for the reason that his service was terminated on the basis of the conviction by operation of proviso to the statutory rules applicable to the situation. The question of back wages would be considered only if the respondents have taken action by way of disciplinary proceedings and the action was found to be unsustainable in law and he was unlawfully prevented from discharging the duties. In that context, his conduct becomes relevant. Each case requires to be considered in its own backdrop. In this case, since the petitioner had involved himself in a crime, though he was later acquitted, he had disabled himself from rendering the service on account of conviction and incarceration in THE HIGH COURT OF MADHYA PRADESH WA.1493.2019 [Dr. C.V. Laghate Vs. State of M.P. and others] 8 jail. Under these circumstances, the petitioner is not entitled to payment of back wages. ... ..."
In Union of India vs. Jaipal Singh (2004) 1 SCC 121 it is held :
"4. ... If prosecution, which ultimately resulted in acquittal of the person concerned was at the behest or by department itself, perhaps different considerations may arise. On the other hand, if as a citizen the employee or a public servant got involved in a criminal case and if after initial conviction by the trial court, he gets acquittal on appeal subsequently, the department cannot in any manner be found fault with for having kept him out of service, since the law obliges, a person convicted of an offence to be so kept out and not to be retained in service ... ... "
The principle then was followed in Baldev Singh vs. Union of India : 2006 SCC (L & S) 35 in following terms :
"7. As the factual position noted clearly indicates the appellant was not in actual service for the period he was in custody. Merely because there has been an acquittal does not automatically entitle him to get salary for the concerned period. This is more so, on the logic of no work no pay. It is to be noted that the appellant was terminated from service because of the conviction. Effect of the same does not get diluted because of subsequent acquittal for the purpose of counting service. The aforesaid position was clearly stated in Ranchhodji Chaturji Thakore v. Supdt. Engineer, Gujarat Electricity Board."
In Greater Hyderabad Municipal Corporation vs. M.Prabhakar Rao (2011) 8 SCC 155 it is held :
"7. Sub-rule (3) of F.R. 54-B is extracted hereinbelow:
THE HIGH COURT OF MADHYA PRADESH WA.1493.2019 [Dr. C.V. Laghate Vs. State of M.P. and others] 9 "54-B. (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 communication to 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]."
8. Sub-rule (3) of F.R. 54-B extracted above, thus, vests power on the authority competent to order reinstatement to form an opinion whether suspension of a Government servant was wholly unjustified and if, in his opinion, the suspension of such Government servant is wholly unjustified, such Government servant will be paid full pay and allowances to which he would have been entitled, had he not been suspended. The proviso to sub-rule (3) of F.R. 54-B, however, states 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 then 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. In other words, even where the competent authority is of the opinion that the suspension was wholly unjustified, the Government servant may still not be entitled to be paid the whole pay and allowances, but may be paid such pay and allowances as may be determined by the competent authority.
9. The rationale, on which sub-rule (3) of F.R. 54-B is based, is that during the period of suspension an employee does not work and, therefore, he is not entitled to any pay unless after the termination of the disciplinary proceedings or the criminal proceedings the competent authority is of the opinion that the suspension THE HIGH COURT OF MADHYA PRADESH WA.1493.2019 [Dr. C.V. Laghate Vs. State of M.P. and others] 10 of the employee was wholly unjustified. This rationale has been explained in clear and lucid language by a three-Judge Bench of this Court in Union of India & Ors. v. K.V. Jankiraman & Ors. At SCC page 121 in Para 26 P.B. Sawant, J, writing the judgment for the Court in the aforesaid case further observed:
"26. ... However, there may be cases where the proceedings, whether disciplinary or criminal, are, for example, delayed at the instance of the employee or the clearance in the disciplinary proceedings or acquittal in the criminal proceedings is with benefit of doubt or on account of non-availability of evidence due to the acts attributable to the employee etc. In such circumstances, the concerned authorities must be vested with the power to decide whether the employee at all deserves any salary for the intervening period and if he does, the extent to which he deserves it. Life being complex, it is not possible to anticipate and enumerate exhaustively all the circumstances under which such consideration may become necessary. To ignore, however, such circumstances when they exist and lay down an inflexible rule that in every case when an employee is exonerated in disciplinary/criminal proceedings he should be entitled to all salary for the intervening period is to undermine discipline in the administration and jeopardize public interests. ...."
10. It will be clear from what this Court has held in Union of India & ors. vs. K.V.Jankiraman & ors. (supra) that even in cases where acquittal in the criminal proceedings is on account of non-availability of evidence, the concerned authorities must be vested with the power to decide whether the employee at all deserves any salary for the intervening period, and if he does, the extent to which deserves it. In the aforesaid case, this Court has also held that this power is vested in the competent authority with a view to ensure that discipline in administration is not undermined and THE HIGH COURT OF MADHYA PRADESH WA.1493.2019 [Dr. C.V. Laghate Vs. State of M.P. and others] 11 public interest is not jeopardized and it is not possible to lay down an inflexible rule that in every case where an employee is exonerated in the disciplinary/criminal proceedings he should be entitled to all salary during the period of suspension and the decision has to be taken by the competent authority on the facts and circumstances of each case.
15. Sub-rule (3) of F.R. 54-B does not state that in case of acquittal in a criminal proceedings the employee is entitled to his salary and allowances for the period of suspension. Sub-rule (3) of F.R. 54-B also does not state that in such case of acquittal the employee would be entitled to his salary and allowances for the period of suspension unless the charge of misconduct against him is proved in the disciplinary proceedings. Sub-rule (3) of F.R. 54-B vests power in the competent authority to order that the employee will be paid the full pay and allowances for the period of suspension if he is of the opinion that the suspension of the employee was wholly unjustified. Hence, even where the employee is acquitted of the charges in the criminal trial for lack of evidence or otherwise, it is for the competent authority to form its opinion whether the suspension of the employee was wholly unjustified and so long as such opinion of the competent authority was a possible view in the facts and circumstances of the case and on the materials before him, such opinion of the competent authority would not be interfered by the Tribunal or the Court."
The present case when adjudged on the principle of law laid down in Greater Hyderabad Municipal Corporation (supra) the authority concerned was well justified in treating the period of suspension as non-duty for the purpose of actual wages and not a THE HIGH COURT OF MADHYA PRADESH WA.1493.2019 [Dr. C.V. Laghate Vs. State of M.P. and others] 12 break in service, therefore, can only be counted for the purpose of pension.
Further contention on behalf of the State that because of the appeal against acquittal being pending therefore the petitioner cannot be said to be wholly acquitted is misconceived; as a Criminal Appeal is not a continuation of trial. [Balak Singh Thakur Vs. The State of Madhya Pradesh: WP.7592/2013 (s) decided on 23.01.2014; Union of India Vs. Jawaharlal Sahu: WP.13921/2010 decided on 28.10.2010; Dr. Om Prakash Shrivastava Vs. The State of Madhya Pradesh decided on 04.01.2013].
As regard to suspension for the period from 05.08.2013 to 29.06.2014. Evidently, charge-sheet was dropped, meaning thereby that the petitioner was exonerated of the charges. Whether the respondents would be justified in treating the period of suspension as suspension and denying the wages for the said period is the question which arises for consideration. In other words, can the suspension be treated as justified when admittedly the charge-sheet has been dropped and the petitioner is exonerated of the charges. Sub-Rule (3) and (4) of F.R. 54B stipulate that:
"(3) Where the authority competent to order re-
instatement is of the opinion that the suspension was THE HIGH COURT OF MADHYA PRADESH WA.1493.2019 [Dr. C.V. Laghate Vs. State of M.P. and others] 13 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 reason directly attributable to the Government servant, it may, after giving him an opportunity to make his representation within 60 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.
(4) In a case falling under sub-rule (3) the period of suspension shall be treated as a period spent on duty for all purposes."
Thus, there cannot be any justification of a person being placed under suspension in respect of the charges levelled against him which were later on dropped. Therefore, the suspension of the petitioner for the period from 05.08.2013 to 29.06.2014 cannot be treated to be justified. As the period of suspension was unjustified, the petitioner will be entitled for entire wages for the period as above for counting the said period for the purpose of pension.
Let pay and pension of the petitioner be settled within a period of three months from the date of communication of this order.
THE HIGH COURT OF MADHYA PRADESH WA.1493.2019 [Dr. C.V. Laghate Vs. State of M.P. and others] 14 The impugned order passed in Writ Petition No.1356/2017 is modified to the extent above. Appeal is disposed of finally in above terms. No costs.
(Sanjay Yadav) (Vivek Agarwal)
Judge Judge
pd
PAWAN
DHARKAR
2019.09.2
6 17:15:37
+05'30'