Calcutta High Court (Appellete Side)
Kolkata Municipal Corporation & Ors vs Tapan Kumar Paul Alias Tapan Paul & Ors on 20 September, 2019
Author: Dipankar Datta
Bench: Dipankar Datta
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
Present:
Hon'ble Justice Dipankar Datta
and
Hon'ble Justice Saugata Bhattacharyya
C.A.N. 10279 of 2018
in
M.A.T. 1352 of 2018
The Municipal Commissioner,
Kolkata Municipal Corporation & ors.
v.
Tapan Kumar Paul alias Tapan Paul & ors.
For the appellants/applicants : Mr. Ranajit Chatterjee,
Mr. Arijit Dey.
For the respondent/writ petitioner : Mr. Chitta Ranjan Chakraborty,
Mr. Dilip Jyoti Chakraborty,
Mr. Sumitava Chakraborty,
Mr. Sudip Dinda.
Heard on : August 20, 2019
Judgment on: September 20, 2019
DIPANKAR DATTA, J.:-
1. The Municipal Commissioner of Kolkata Municipal Corporation (hereafter
KMC) and 3 (three) of its officers are the appellants before us, in this intra-
court writ appeal. They are aggrieved by the order dated August 6, 2018,
whereby a learned Judge of this Court disposed of WP 24373 (W) of 2017
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presented by the respondent no.1 (hereafter the writ petitioner) with
directions as follows:
"It appears from the records that the petitioner was placed under
suspension on May 3, 2003 and retired from service on February 29,
2016. No disciplinary proceeding was initiated against him, in the
interregnum. At least the same did not culminated into order of
punishment. The petitioner was acquitted from criminal charges on
August 25, 2017. In view of this, since the petitioner did not suffer any
punishment in connection with any disciplinary proceeding relating to
his service, the KMC authorities are obliged to pay the petitioner
retirement benefits treating him to be in service and by discounting the
fact that the petitioner was placed under suspension on May 3, 2003.
Therefore, the KMC authorities shall calculate and disburse the
retirement benefits of the petitioner by treating him to be in service for
the period from May 3, 2003 till February 29, 2016. The authorities
shall also disburse the emoluments pay and allowance that the
petitioner was entitled to as if the petitioner was not placed under
suspension for the period from May 3, 2003 to February 29, 2016. The
entire disbursement shall take place within a period of six weeks from
the date of communication of this order. Needless to say that the KMC
authorities will be entitled to adjust the payment already made in such
period."
2. The appellants have applied for stay of operation of the order impugned.
While hearing the application for stay, we necessarily had to consider
various issues based on the arguments advanced by the parties. We also
had to obtain information from the State on a particular point, which shall
be referred to at a later part of this judgment. Since we were of the view that
the decision on the application for stay would leave nothing substantial for
being decided in the appeal, we called upon the parties to address us on the
merits of the appeal. They obliged and we now propose to dispose of the stay
application as well as the appeal by this common judgment and order.
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3. The facts as pleaded in the writ petition and the relief claimed call for being
noticed first. The writ petitioner had retired from the service of KMC, while
under suspension, on attaining the age of superannuation on February 29,
2016. Prior to being placed under suspension, he was posted as the
Personal Assistant to the Assessor Collector (South). Despite
superannuation, the writ petitioner's retiral benefits had not been released.
The cause for suspension of the writ petitioner was the outcome of his
involvement as an accused in connection with Bhawanipur P.S. FIR No.
206/2006 dated June 5, 2006 under sections 417/420/468/471/34 of the
Indian Penal Code (hereafter the IPC) and section 13 of the Prevention of
Corruption Act, 1988 (hereafter the PC Act) and detention in custody for
more than 48 hours in connection with investigation of the said FIR.
Suspension was ordered on July 23, 2006, with effect from May 3, 2006.
The writ petitioner was, however, released on bail by an order dated June
25, 2006, after being in custody for 46 days. Since subsistence allowance
was not being paid to him in accordance with the revised pay scale, the writ
petitioner had the occasion to invoke the writ jurisdiction of this Court
earlier in 2011. Despite disposal of such writ petition by a learned Judge by
an order dated January 6, 2012 directing the Joint Municipal
Commissioner, KMC to consider payment of subsistence allowance in terms
of the rules, the prayer was declined because the said authority found that
the writ petitioner had no "valid ground to receive subsistence allowance on
the basis of revised pay scale". During the entire period the writ petitioner
continued under suspension, nearly 10 years, he claimed to have received
subsistence allowance of Rs.10,500/- per month, being 75% of his salary of
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Rs.14,999/- per month, which he used to receive in the year 2003 without
any revision being effected. Pursuant to the pay revision effected in 2011,
the salary of the Personal Assistant to an Assessor Collector of KMC was
revised to Rs.43,440/-, yet, the writ petitioner was denied 75% of such sum
without justification. While in service but under suspension, the writ
petitioner further claimed to have made a series of representations seeking
enhancement in the rate of subsistence allowance but in vain. Even after his
retirement on February 29, 2016, the writ petitioner appealed to the
concerned authorities of KMC to release pension and other retirement
benefits but the same too proved abortive. In the meanwhile, however, the
writ petitioner stood trial in Special Case No.9 of 2006 (arising out of the
aforesaid FIR) in the Court of the Judge, 24-Parganas 1st Special Court,
Alipore under sections 417/420/468/471/34 of the IPC and section 13(1)(c)
read with section 13(2) of the PC Act. The judgment was delivered in
connection therewith on August 25, 2017. The writ petitioner was acquitted
as the prosecution failed to drive home the charge against him. Upon such
acquittal, the writ petitioner approached the Mayor of the KMC as well as
the appellants with a representation dated September 2, 2017. Having been
greeted with silence, the writ petitioner was compelled to invoke the writ
jurisdiction of this Court a second time by presenting the writ petition out of
which this appeal arises. Therein, he sought for, inter alia, the following
relief:
"a) A Writ in the nature of mandamus and/or like nature of
commanding the respondents to show cause as to why the Pension,
Arrear pension with Interest, Gratuity, Provident Fund, full salary
during the suspension period treating the petitioner in service and
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leave encashment also due enhance salary as per pay commission form
19th April, 1998 to October, 1999 and Group Insurance amount of the
petitioner along with statutory interest for delayed payment will not be
released;
b) A Writ in the nature of mandamus and/or like nature of
commanding the respondents or their agents to release the Pension,
arrear with interest, bonus, Gratuity, Provident Fund, Bonus of the
petitioner along with the statutory interest immediately along with to
release the full salary of the petitioner during the period of suspension
as per Revised pay scale as per West Bengal Service Revision of Pay and
Allowance Rules, 2009 and also to release the arrear with interest for
the same period;
c) A Writ in the nature of mandamus and/or like nature commanding
the respondents to release the petitioner's arrear salary on pay revision
which is due before suspension order passed by the appropriate
authority and also arrear pay for the period 19th April, 1998 to October
1999 as per pay commission revision;
d) A Writ in the nature of certiorari calling upon the respondents to
produce or cause to be produced all records pertaining to the instant
case so that after perusal of the same conscionable justice may be done
by this Hon'ble Court;
4. An order dated May 11, 2018 was passed by a learned Judge of this Court to
the following effect:
"In order to avoid the controversies, it would be appropriate to request
the petitioner to meet the Joint Municipal Commissioner (Personnel) to
consider the issues. The Joint Municipal Commissioner (Personnel) is
requested to quantify the entitlement of the petitioner and take
appropriate steps for the purpose of disbursement of the same, in
accordance with law. He will submit a report to this Court on the next
date of hearing.
List the writ petition in the Monthly List on June 2018."
4.1 Upon receipt of the order dated May 11, 2018, the Special Municipal
Commissioner (P) passed, inter alia, the following order:
"From the photocopy of the Judgement and Order passed by Ld. Judge,
24-Parganas 1st Spl. Court, Alipore, dtd. 25/08/17 in Special Case No.
9 of 2006 (arising out of Bhawanipur P.S. Case No. 206
dtd.05.06.2006), since annexed with the said writ petition, it appears
that Sri Paul has been acquitted from the case u/s 248(1) Cr.P.C. but
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according the West Bengal Special Courts Act, 1949 the provision will
be treated as 253(1) Cr.P.C. from the case and released from the bail
bond.
Upon considering all materials resting in the file concerned and other
aspects of the matter, it is ordered that:
The suspension period of Sri Tapan Kumar Paul, former P.A. to
Assessor-Collector (South), A-C (South) Department, K.M.C, shall be
treated as such and he will not get anything more that what he actually
received during that period.
Since the incumbent has not rendered any service during the period of
suspension, the said period shall be treated as 'no work no pay' and the
period will even be not counted towards retiral benefits.
Let this order be communicated to all concerned for information and
compliance."
4.2 This was followed by a report which too was submitted before the Court.
According to the same, the writ petitioner was entitled to provident-fund
accumulation in a sum of Rs.1,82,188/- and arrear pay with effect from
April 1, 1997 till October 31, 1998 in a sum of Rs.41,158/-.
4.3 It was thereafter that the order impugned in this appeal was passed on the
said writ petition, noticed in paragraph 1 (supra).
5. Appearing on behalf of the appellants, Mr. Chatterjee assiduously argued
that the learned Judge acted in excess of jurisdiction in making the
directions for payment of service and retiral benefits as if the writ petitioner
had never been placed under suspension. Our attention was drawn to the
provisions of regulation 65 of the Calcutta Municipal Corporation Service
Regulation (Draft) (hereafter the Draft Regulation) to contend that the
Special Municipal Commissioner (P) was right in observing that the writ
petitioner not having performed any work since he was placed under
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suspension, the entire period since then till retirement would be treated as
'no work no pay'; he shall not be entitled to anything more than what he
actually received during that period; and the period between suspension and
retirement will not even count towards retiral benefits.
6. For facility of reference, the relevant part of regulation 65 relied upon by Mr.
Chatterjee is quoted herein below:
"(4) In cases other than those covered by Sub-regulation (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 on (sic, of) non-compliance with the requirements of
clause (1) or clause (2) of Article 311 of the Constitution of India and no
further inquiry is proposed to be held the Corporation employee shall,
subject to the provisions of Sub-regulations (6) and (7), be paid such
amount (not being 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 Corporation employee of the
quantum proposed 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-regulation (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 far any specified purpose.
Provided that if the Corporation employee so desires, such authority
may direct that the period of suspension preceding the dismissal,
removal or compulsory retirement, as the case may be, shall be
converted into leave of any kind due and admissible to the Corporation
employee.
Note :- The order of the competent authority under the proviso to this
sub-regulation 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 Corporation employee; and
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(b) leave of any kind in excess of five years in the case of permanent
Corporation employee.
(6) The Payment of allowances under Sub-regulation (2) or Sub-
regulation (4) shall be subject to all other conditions under which
allowances are admissible. "
7. Since the Draft Regulation was nothing more than a draft, we had enquired
of Mr. Chatterjee as to whether the same had been approved by the State
Government in view of the provision contained in sub-section (1) of section
604 of the Kolkata Municipal Corporation Act, 1980 (hereafter the 1980 Act).
8. Mr. Chatterjee failed to satisfactorily answer the question. This led us to call
upon Mr. Joytosh Majumdar, learned Government Pleader to apprise us
whether the State Government had granted the requisite approval or not. On
the day we reserved judgment, Ms. Munmun Tiwari, learned advocate for the
State informed us that the State Government was still in the process of
considering the question of approving the Draft Regulation.
9. This being the position on facts, Mr. Chatterjee, however, went to the extent
of arguing that even though the Draft Regulation may not have had the
approval of the State Government, still the same could be enforced and
acted upon in view of the decision of the Supreme Court reported in (1998) 4
SCC 114 (Vimal Kumari v. State of Haryana).
10. We had also enquired of Mr. Chatterjee as to whether any service regulations
existed prior to the Draft Regulation was put on paper and approval of the
Government sought. Our attention was drawn to the Corporation of Calcutta
Service Regulations (hereafter the Service Regulations), framed under the
Calcutta Municipal Corporation Act, 1951. According to Mr. Chatterjee, the
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Service Regulations had been applied to employees of Calcutta Municipal
Corporation (now KMC) prior to the Draft Regulation coming into existence.
Since the Service Regulations were placed before us, we next called upon
Mr. Chatterjee to show us the relevant provision which could be applied to
deny the writ petitioner his service benefits as well as retiral benefits in the
manner the Special Municipal Commissioner (P) proposed in his order dated
June 14, 2018 read with the subsequent report dated July 2, 2018,
assuming that the Draft Regulation without approval were inoperative and
unenforceable. Mr. Chatterjee referred to regulation 55 of the Service
Regulations as the source of power to withhold benefits to the writ
petitioner.
11. Regulation 55 reads as follows:
"(55) When the suspension of an employee is held to have been
unjustifiable or not wholly justifiable, or when an employee who has
been dismissed, removed or suspended is reinstated, the punishing,
appellate or revising authority may grant to him for the period of his
absence from duty-
(a) if he is honourably 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 or which
he was in receipt prior to his dismissal, removal or suspension; or
(b) If otherwise, such proportion of such pay and allowance as the
punishing, appellate or revising authority may prescribe.
In a case falling under clause (a), the period of absence from duty will
be treated as a period spent on duty. In a case falling under clause (b),
the period may treated as duty or leave but it will not be so treated
unless the punishing, appellate or revising authority directs
accordingly.
Note 1: In deciding the pay and allowances of an employee in temporary
employment the period for which the temporary appointment has been
sanctioned shall be taken into consideration.
10
Note 2: The amount of subsistence grant, if any, already drawn shall be
deducted from the pay and allowances or proportion of them which may
be granted under this regulation.
Note 3: The grant of pay and allowances or proportion of them under
this regulation does not cancel any officiating appointment that may
have been made while an employee was under dismissal, removal or
suspension.
Note 4: No post rendered vacant by the removal or dismissal of an
employee shall be filled substantively until the time for instituting
appeal expired or the appeal instituted is decided.
Note 5: if the punishing, revising or appellate authority directs that the
period of absence in any case falling under clause (b) should be treated
as leave such leave should be regulated under the leave regulations
applicable such case and be debitable to the leave account. The pay
that may be prescribed shall be equivalent to the leave salary
admissible under the appropriate regulations loss the subsistence grant
already drawn. In cases requiring for grant without pay, the subsistence
grant already drawn will have to be recovered. The period of absence
shall, where it is neither treated as duty nor as leave, be treated as a
period spent on suspension."
12. Relying upon clause (a) of regulation 55, Mr. Chatterjee next contended that
since the acquittal of the writ petitioner by the Special Court was other than
honourable, in the sense that the writ petitioner could not be identified in
the test identification parade because of death of the complainant's
employee with whom the writ petitioner had interacted, it was not a case of
honourable acquittal but the acquittal was based on benefit of doubt; hence,
the order of the Special Municipal Commissioner (P) could be sustained
having regard to regulation 55 (a).
13. Mr. Chatterjee relied on the decisions reported in (1994) 1 SCC 541
(Management of Reserve Bank of India v. Bhopal Singh Panchal), (2013) 1
SCC 598, (1997) 3 SCC 636 (Krishnakant Raghunath Bibhavnekar v. State
of Maharashtra) and (2018) 1 SCC 797 (Union Territory, Chandigarh
11
Administration v. Pradeep Kumar) to enlighten us as to whether acquittal in
a criminal case automatically entitles one to reinstatement with full back
wages and also as to what is meant by an 'honourable acquittal' in a
criminal case.
14. While concluding his argument, Mr. Chaterjee submitted that the order
under appeal being indefensible, the same deserves judicial interdiction.
15. Mr. Chakraborty, learned advocate for the writ petitioner while supporting
the order under appeal asserted that there is no statutory sanction for what
the Special Municipal Commissioner (P) had ordered and if such order were
allowed to sustain, the writ petitioner would be deprived of not only financial
benefits but it would be impossible for him to efface the blemish the order of
suspension had brought about in his life, without any fault on his part and
despite the findings of the criminal court being in his favour. He,
accordingly, prayed for dismissal of the appeal.
16. In the conspectus of the above arguments, the points that surface for our
consideration are:
(1) Whether the Draft Regulation, without approval of the Government in
terms of section 604 of the Act is operative and enforceable and, if
not, which would be the applicable regulation for deciding the lis?
(2) Whether the writ petitioner was honourably acquitted by the criminal
court or acquitted by giving him the benefit of doubt?
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(3) If the writ petitioner is held to have been honourably acquitted,
whether there is any statutory sanction for KMC to deprive the writ
petitioner of his service benefits as well as retiral benefits?
(4) If justification is wanting, are the appellants entitled to any relief?
Point 1
17. That the Draft Regulation is yet to be approved by the Government in terms
of section 604 of the 1980 Act is an undeniable fact. The off the cuff
response of Mr. Chatterjee has been that even without approval, the Draft
Regulation would apply to the employees of KMC in view of the decision in
Vimla Kumari (supra).
18. After reading the decision in Vimal Kumari (supra), we are left with no other
option but to hold that the ratio of such decision does more harm than good
for the cause of the appellants.
18.1 In that case the Supreme Court held:
"6. The Draft Rules were prepared in 1983 and since then they have
not been enforced. It is, no doubt, open to the Government to regulate
the service conditions of the employees for whom the Rules are made
by those Rules even in their 'draft stage' provided there is clear
intention on the part of the Government to enforce those Rules in the
near future. Recourse to such Draft Rules is permissible only for the
interregnum to meet any emergent situation. But if the intention was
not to enforce or notify the Rules at all, as is evident in the instant
case, recourse to 'Draft Rules' cannot be taken. Such Draft Rules
cannot be treated to be Rules made under Article 309 of the
Constitution and cannot legally exclude the operation of any existing
executive or administrative instruction on the subjects covered by the
Draft Rules nor can such Draft Rules exclude the jurisdiction of the
Government, or for that matter, any other authority, including the
appointing authority, from issuing the executive instructions for
regulating the conditions of service of the employees working under
them.
13
******
8. In the absence of any decision of the State Government that so long as the Draft Rules were not notified, the service conditions of the appellant or the respondent and their other colleagues would be regulated by the 'Draft Rules' prepared in 1983, it was not open either to the Government or to any other authority, nor was it open to the High Court, while disposing of the writ petition, to invoke any of the provisions of those Rules particularly as the Government has not come out with any explanation why the Rules, though prepared in 1983, have not been notified for the long period of more than a decade. The delay, or rather inaction, is startling." 18.2 It is, thus, clear that the Supreme Court did not declare any law that the Draft Rules prepared in 1983 without being notified by the State Government could be invoked for any purpose.
18.3 In any event, Vimal Kumari (supra) was rendered in respect of a matter concerning recruitment by promotion and there have been instances where the principles flowing from rules/regulations in draft form are followed while conducting a process of recruitment in the absence of any guiding principle. Vimal Kumari (supra), therefore, does not aid the appellants.
19. It is clear as crystal that the Draft Regulation, which was deemed to have come into force with effect from June 1, 1998 in terms of regulation 1 thereof, has yet not been approved although it has been over two decades since the Draft Regulation was conceived of and put on paper. The intention of the Government is, therefore, not to enforce and notify the Draft Regulation at all and, therefore, recourse to the Draft Regulation could not have been taken by the Special Municipal Commissioner (P). Even if the intention of the State Government is otherwise and the Draft Regulation is 14 approved within a short time from now and notified for general information, such approval would not enure to the benefit of KMC. As on date the writ petitioner retired, the Draft Regulation was not a valid piece of legislation and could not have been enforced. Therefore, it could not have any application for deciding the fate of the writ petitioner in terms of the request made by the learned Judge by the order dated May 11, 2018.
20. In the absence of enforcement of the Draft Regulation, we hold that what would apply to the case of the writ petitioner is the Service Regulations and answer the point accordingly.
Point 2
21. Perusal of the judgment of the Special Court dated August 25, 2017 reveals that whatever evidence seeking to implicate the writ petitioner had been led and available on the records was hearsay and, therefore, inadmissible in evidence. The learned Judge had the aforesaid FIR before him, which was registered after an order was made on the application under section 156(3) of the Code of Criminal Procedure (hereafter the Cr.P.C.) of Kumar Prasanta Kumar Roy (hereafter the complainant). Although in such application there were certain allegations against the writ petitioner, Exbt.-7 was referred to by the learned Judge, being a letter of complaint dated November 6, 1999 to the Municipal Commissioner, Calcutta Municipal Corporation (now KMC) that preceded the application under section 156(3) the Cr.P.C. It was a complaint alleging that one Swapan Kumar Bhanja and one Rajat Shubhra Sil, in collusion and conspiracy in between themselves and also in furtherance of their common intention to grab the money of the 15 complainant, took a sum of Rs.8 lakh from him on the plea of depositing arrear taxes in respect of his house and had also issued receipts which subsequently transpired to be fake. The writ petitioner stood trial along with the said Swapan Kumar Bhanja and the said Rajat Shubhra Sil. Two of the points which emerged for determination before the learned Judge read as follows:
"i) Whether accd. persons in collusion and conspiracy with each other and also other persons grabbed the money of the defacto complainant or not?
ii) Whether the accd. persons issued fake receipts to the defacto complainant or not?"
21.1 Upon discussion of the evidence, this is what the learned Judge observed insofar as the writ petitioner is concerned:
"As nothing has come out against the accd. Tapan Paul, I am inclined to state that this person can be acquitted."
21.2 Ultimately, it was ordered as follows:
"That I find that prosecution has failed to establish the charges U/s 417/420/468/471/34 of I.P.C. and U/s 13(1)(c) r/w Sec. 13(2) of the P.C. Act, 1988 and as such the accd. persons namely Rajat Shubhra Sil, Tapan Paul and Swapan Kr. Bhanja are acquitted from this case U/s 248(1) Cr.P.C. but according to the West Bengal Special Courts Act, 1949, the provision will be treated as 235 (1) Cr.P.C. from this case and released from their respective bail bonds. Let the seized documents and articles be returned to the respective persons from whom seized after the lapse of period of appeal.
Thus this case is disposed of."
22. To find out what is an 'honourable acquittal', let us seek guidance from the decisions cited by Mr. Chatterjee.
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23. Pradeep Kumar (supra) is a case pertaining to recruitment in police service.
Although the respondents were successful in the selection process, they were denied employment on the ground that they had been prosecuted in a criminal trial but were acquitted by the court giving them the benefit of doubt. One of the points arising for decision before the Supreme Court was this:
"Whether the contention of the respondents that they were honourably acquitted and that they should not be deprived of being appointed to the post of Constable is acceptable?"
23.1 Paragraphs 10 to 13 of the decision are eloquent on the point that an aspirant for a post in the police service must have clean antecedents and acquittal in a criminal case does not automatically entitle appointment. It was further held that the relevant selection committee had examined the pros and cons of the matter and arrived at a decision which was in accordance with the guidelines for selection. Also, the decision reported in (2015) 2 SCC 377 (Joginder Singh v. UT of Chandigarh) was distinguished on the ground that the trial in such case arose out of a family dispute. 23.2 As to what would constitute honourable acquittal, the Court referred to its earlier decision reported in (2013) 1 SCC 598 (Inspector General of Police v. S. Samuthiram) which, in turn, referred to the decision in Bhopal Singh Panchal (supra).
23.3 Para 24 of S. Samuthiram (supra) reads as follows: 17
"24. The meaning of the expression 'honourable acquittal' came up for consideration before this Court in RBI v. Bhopal Singh Panchal. In that case, this Court has considered the impact of Regulation 46(4) dealing with honourable acquittal by a criminal court on the disciplinary proceedings. In that context, this Court held that the mere acquittal does not entitle an employee to reinstatement in service, the acquittal, it was held, has to be honourable. The expressions 'honourable acquittal', 'acquitted of blame', 'fully exonerated' are unknown to the Code of Criminal Procedure or the Penal Code, which are coined by judicial pronouncements. It is difficult to define precisely what is meant by the expression 'honourably acquitted'. When the accused is acquitted after full consideration of prosecution evidence and that the prosecution had miserably failed to prove the charges levelled against the accused, it can possibly be said that the accused was honourably acquitted."
(emphasis supplied)
24. While answering the point, we cannot but refer to Joginder Singh (supra).
One of the questions arising for decision there was:
(i) Whether the denial of the benefit of appointment to the appellant by the High Court is legal and valid in the light of the fact that the appellant was acquitted from the criminal case pending against him?
24.1 The contention raised to deny appointment was the same as in Pradeep Kumar (supra), i.e., for appointment in a disciplined force the antecedents of an aspirant form part of relevant considerations and even though the respondent had been acquitted, his appointment as Constable was not desirable. The Court found that the complainant did not support the case of the prosecution as he failed to identify the assailants and further admitted that the contents of the statement under section 161, Cr.P.C. was not disclosed to him and his signatures were obtained on a blank sheet of paper by the investigating officer. Further, the eyewitness of the case who was also injured, had failed to identify the assailants and both the witnesses were 18 declared hostile on the request of the prosecution. Hence, it was held that the prosecution had miserably failed to prove the charges levelled against the appellant. The Supreme Court agreed with the findings of the trial court and expressed its opinion that acquittal of the accused from the criminal case was an honourable acquittal. The decision in S. Samuthiram (supra) was then considered and what followed is this observation :
"19. Further, an acquittal of the appellant is an 'honourable' acquittal in every sense and purpose. Therefore, the appellant should not be deprived from being appointed to the post, in the public employment, by declaring him as unsuitable to the post even though he was honourably acquitted in the criminal case registered against him."
(emphasis supplied)
25. It is in the light of the above that we are to decide whether the writ petitioner's acquittal was honourable or not. The relevant findings from the judgment of the learned Judge of the Special Court have been extracted above. The writ petitioner was not given the benefit of any doubt having regard to the standard of proof applicable in a criminal trial, i.e., the offence must be proved beyond reasonable doubt; on the contrary, there was no admissible evidence on record to hold him guilty. The prosecution was held to have failed in its pursuit to prove the charge against the writ petitioner. It is, therefore, a case where the statement of law as to when an acquittal amounts to 'honourable acquittal', as observed in S. Samuthiram (supra) squarely applies.
26. We, thus, hold that the Special Court honourably acquitted the writ petitioner and, accordingly, the point stands answered. 19 Point 3
27. It would be profitable before proceeding further to look into the decision in Bhopal Singh Panchal (supra) once again as well as the decision in Krishnakant Raghunath Bibhavnekar (supra).
28. Bhopal Singh Panchal (supra) appears to be a decision rendered in relation to an industrial dispute. The concerned workman was charged under section 302, IPC and convicted under section 304 Part-I thereof. In view of the same, he was dismissed form service. An industrial dispute having been raised, the same travelled to the Industrial Tribunal. The Tribunal directed reinstatement of the workman with full back wages and continuity in service as if he was never dismissed. The award was complied with. Subsequently, the workman approached the Labour Court with an application under section 33C-(2) of the Industrial Disputes Act, 1947 claiming certain financial benefits. The claim succeeded before the Labour Court. The question arising for decision of the Court was:
"6. The short question that falls for consideration is whether the order of suspension is automatically set aside on the reinstatement and whether the management cannot deal with the period of suspension according to the regulations governing the service conditions. ***"
28.1 This is what the Court observed in paragraph 15:
"15. We have already pointed out the effect of the relevant provisions of Regulations 39, 46 and 47. The said regulations read together, leave no manner of doubt that in case of an employee who is arrested for an offence, as in the present case, his period of absence from duty is to be treated as not being beyond circumstances under his control. In such circumstances, when he is treated as being under suspension 20 during the said period, he is entitled to subsistence allowance. However, the subsistence allowance paid to him is liable to be adjusted against his pay and allowances if at all he is held to be entitled to them by the competent authority. The competent authority while deciding whether an employee who is suspended in such circumstances is entitled to his pay and allowances or not and to what extent, if any, and whether the period is to be treated as on duty or on leave, has to take into consideration the circumstances of each case. It is only if such employee is acquitted of all blame and is treated by the competent authority as being on duty during the period of suspension that such employee is entitled to full pay and allowances for the said period. In other words, the Regulations vest the power exclusively in the Bank to treat the period of such suspension on duty or on leave or otherwise. The power thus vested cannot be validly challenged. During this period, the employee renders no work. He is absent for reasons of his own involvement in the misconduct and the Bank is in no way responsible for keeping him away from his duties. The Bank, therefore, cannot be saddled with the liability to pay him his salary and allowances for the period. That will be against the principle of 'no work, no pay' and positively inequitable to those who have to work and earn their pay. As it is, even during such period, the employee earns subsistence allowance by virtue of the Regulations. In the circumstances, the Bank's power in that behalf is unassailable.
28.2 It is thus evident on reading the aforesaid extract that the relevant rules governing the terms and conditions of service were examined and the findings returned. The ratio of the aforesaid decision would not be applicable unless the governing rules here are pari materia.
29. In Krishnakant Raghunath Bibhavnekar (supra), the appellant while working as Compositor in the Government of India Printing Press, was charged for offences punishable, inter alia, under Section 409 of the IPC. Pending trial, he was kept under suspension and was paid subsistence allowance. After his acquittal, the appellant was reinstated but the respondents did not grant the consequential benefits to him. Consequently, the appellant approached the Administrative Tribunal which, by the impugned order, dismissed the application. Aggrieved thereby, the appellant approached the Supreme 21 Court. Paragraph 4 of the decision, heavily relied on by Mr. Chatterjee, reads as follows:
"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 on 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 22 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 give 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 and 6 of the additional affidavit."
(emphasis supplied) 29.1 At first blush, the law laid down might support Mr. Chatterjee's contention but a deeper scrutiny would reveal certain distinctive features which could tilt the scales against the appellants. First, the nature of allegation is important. The appellant therein was proceeded against for commission of defalcation of public funds and fabrication of the records, which is not the case here. Secondly, there were rules conferring discretion on the disciplinary authority not to treat the period spent under suspension as spent on duty. Thirdly and finally, the Court seems to suggest that recourse to a departmental proceeding after acquittal may not be available if the acquittal was recorded on a positive finding that the accused did not commit the offence at all as distinguished from an acquittal which is on benefit of doubt given.
23
30. We have in paragraph 11 supra quoted regulation 55. It ordains a course of action if the acquittal is honourable and another course if the acquittal is other than honourable. In view of our finding in relation to Point 1, the conclusion is inescapable that the course of action as in clause (a) of regulation 55 had to be followed which the Special Municipal Commissioner (P) evidently did not. His order, which was placed before the learned Judge of the writ court, lacked statutory sanction. Such an order cannot, therefore, be sustained in law.
31. We, therefore, answer the point against the appellants and in favour of the writ petitioner.
Point 4
32. Since all the above points arising for determination have been answered against the appellants, they are not entitled to any relief in exercising of our appellate powers.
33. The order under challenge is upheld. The financial benefits to which the writ petitioner is entitled in terms of such order shall be released and paid to him within 3 (three) months from date. The writ petitioner shall cooperate with the appellants to secure full compliance of the learned Judge's order.
34. Accordingly, the appeal as well as the application for stay stands dismissed.
There shall, however, be no order as to costs.
(Saugata Bhattacharyya, J.) (Dipankar Datta, J.)