Kerala High Court
Union Of India (Uoi), Represented By ... vs T.P. Gopinath, Telephone Inspector And ... on 26 March, 2003
Author: K. Thankappan
Bench: K. Thankappan
JUDGMENT Cyriac Joseph, J.
1. The petitioners challenge Ext.P3 order dated 25.9.2001 of the Central Administrative Tribunal, Ernakulam Bench in O.A. No. 1244 of 1999. The petitioners herein are the respondents and the respondent herein is the petitioner in the O.A. which was allowed by the Central Administrative Tribunal.
2. The respondent while working as Telephone Inspector, Mattancherry was placed under suspension under Rule 10(1) of the Central Civil Services (Classification, Control and Appeal) Rules, 1985 (hereinafter referred to as the 'CCS(CCA) Rules') with effect from 1.2.1989 on the ground that a criminal case against him was under investigation. After investigation the respondent was tried by the C.B.I. Court, Ernakulam for offences punishable under Sections 7 and 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988, The trial court convicted him for the aforesaid offences and sentenced him to undergo Imprisonment for two years and to pay a fine of Rs. 2000/- each under Sections 7 and 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act. Against the judgment of the trial court the respondent filed Criminal Appeal No. 85 of 1993 in the High Court. The High Court in its judgment dated 21.7.1998 found that the prosecution failed to prove the case against the respondent beyond reasonable doubt and set aside the conviction and sentence. Therefore the Divisional Engineer, Telecom, Cochin as per his order dated 10.8.1998 revoked the order of suspension with immediate effect. Later, in his order dated 11.9.1998, the Principal General Manager, Telecom, Ernakulam stated that departmental proceedings were going to be contemplated against the respondent, that the pay and allowances drawn by the respondent prior to the date of suspension may be drawn and disbursed and that orders regarding regularisation of suspension period and drawal of increment/OTBP would be issued separately after finalisation of the departmental proceedings. However, no departmental proceedings were initiated against the respondent. Thereafter the Principal General Manager, Cochin issued a show cause notice dated 6.5.1999 stating that the case of the respondent fell under Sub-rules (5) and (7) of Fundamental Rule 54-B and therefore it was proposed to limit the pay and allowances for the period of suspension to that of subsistence allowance already paid and to treat the period of suspension as on duty for the purpose of pension alone. The respondent was also called upon to forward his representation, if any, against the said proposal. The respondent submitted a representation dated 20.5.1999 contending that he was entitled to have the period of suspension treated as period spent on duty for all purposes under Fundamental Rule 54-B(4). However, the Deputy General Manager, Telecom passed an order dated 3.6.1999 directing that the pay and allowances of the respondent for the period under suspension be restricted to subsistence allowance already paid and to treat the period as on duty for the purpose of pension only. It was stated in the said order that the order was being passed under Sub-rules (5) and (7) of F.R.54-B. Though the respondent filed appeal dated 3.0.6.1999 to the General Manager, Telecom, Ernakulam SSA, the Appellate Authority by its order dated 10.9.1999 confirmed the order of the Deputy General Manager that the respondent will be entitled only to the subsistence allowance paid during the period under suspension and that the period of suspension will be counted as on duty only for the purpose of pension. Thereupon the respondent filed O.A. No. 1244 of 1999 before the Central Administrative Tribunal, Ernakulam Bench challenging the order dated 10.9.1999 of the Appellate Authority (General Manager, Telecom, Ernakulam). The respondents in the O.A. (petitioners herein) contested the claim of the respondent by filing a reply statement in which it was contended that the period of suspension of the respondent was liable to be regularised only under Sub-rules (5) and (7) of F.R.54-B. However, in the impugned order dated 25.9.2001 the Central Administrative Tribunal held that the period of suspension of the respondent was liable to be regularised under F.R.54-B(3) and not under F.R.54-B(5) and (7). The Tribunal set aside the order of the General Manager and directed the respondents in the O.A. to refix the pay of the applicant in the O.A. treating the period from 1.2.1989 to 10.8.1998 as duty for all purposes and to disburse to the applicant the entire pay and allowances for the said period. By the time the order was passed by the Tribunal the respondent had voluntarily retired from service and therefore the Tribunal directed the respondents in the O.A. to refix the retirement benefits of the applicant also accordingly. Aggrieved by the decision of the Central Administrative Tribunal the respondents in the O.A. filed this original petition. As per the interim order dated 11.2.2002 passed in C.M.P. No. 7464 of 2002 the operation of the impugned order of the Tribunal was stayed pending disposal of the original petition.
3. The contentions urged by the petitioners and the respondent before the Tribunal were repeated before this court also. Hence the only point that arises for consideration is whether the period of suspension of the respondent is liable to be regularised under F.R.54-B(3) or under F.R.54-B (5) and (7).
4. F.R.54-B (1) to (9) are extracted hereunder:
"(1) When a Government servant who has been suspended is reinstated or would have been so reinstated but for his retirement (including premature retirement) while under suspension, the authority competent to order reinstatement shall consider and make a specific order -
(a) regarding the pay and allowances to be paid to the Government servant for the period of suspension ending with reinstatement or the date of his retirement (including premature retirement), as the case may be; and
(b) whether or not the said period shall be treated as a period spent on duty.
(2) Notwithstanding anything contained in Rule 53, where a Government servant under suspension dies before the disciplinary or the Court proceedings instituted against him are concluded, the period between the date of suspension and the date of death shall be treated as duty for all purposes and his family shall be paid the full pay and allowances for that period to which he would have been entitled had he not been suspended, subject to adjustment in respect of subsistence allowance already paid.
(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.
(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.
(5) In cases other than those falling under Sub-rules (2) and (3) the Government servant shall, subject to the provisions of Sub-rules (8) and (9) be paid such amount (not being the whole) of the pay and allowances to which he would have been entitled had he not been suspended, as the competent authority may determine, after giving notice to the Government 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.
(6) Where suspension is revoked pending finalization of the disciplinary or the Court proceedings, any order passed under Sub-rule (1) before the conclusion of the proceedings against the Government servant, shall be reviewed on its own motion after the conclusion of the proceedings by the authority mentioned in Sub-rule (1) who shall make an order according to the provisions of Sub-rule (3) or Sub-rule (5), as the case may be.
(7) In a case falling under Sub-rule (5), the period of suspension shall not be treated as a period spent on duty unless the competent authority specifically directs that it shall be so treated for any specified purpose:
Provided that, if the Government servant so desires that such authority may order that the period of suspension shall be converted into leave of any kind due and admissible to the Government 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 Government servant; and
(b) leave of any kind in excess of five years in the case of permanent or quasi-permanent Government servant.
(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.
(9) The amount determined under the proviso to Sub-rule (3) or under Sub-rule (5) shall not be less than the subsistence allowance and other allowances admissible under Rule 53."
It can be seen that as per F.R.54-B(3) the Government servant is entitled to be paid the full pay and allowances to which he would have been entitled had he not been suspended, only when the authority competent to order reinstatement is of the opinion that the suspension was wholly unjustified. In that event the period of suspension shall be treated as period spent on duty for all purposes, as provided in F.R.54-B(4). As per F.R.54-B(5) in a case other than those falling under Sub-rules (2) and (3) the Government servant shall, subject to the provisions of Sub-rules (8) and (9), be paid such amount (not being the whole) of the pay and allowances to which he would have been entitled to had he not been suspended, as the competent authority may determine. As per F.R.54-B(7), in a case falling under Sub-rule (5), the period of suspension shall not be treated as period spent on duty unless the competent authority specifically directs that it shall be so treated for any specific purpose.
5. From the provisions contained in F.R.54-B it is clear that a Government servant on reinstatement in service after revoking the suspension has no right to be paid the full pay and allowances for the period under suspension or to treat the period of suspension as period spent on duty for all purposes, even if he is exonerated/acquitted in the departmental/criminal proceedings. The period of suspension will have to be regularised by the competent authority in accordance with the provisions in F.R.54-B. Only if the competent authority is of the opinion that the suspension was wholly unjustified, the Government servant is entitled to be paid the full pay and allowances during the period of suspension and also to treat the period of suspension as period spent on duty for all purposes. If the competent authority is not of the opinion that the suspension was wholly unjustified, the Government servant is entitled only to such amount (not being the whole) of the pay and allowances as the competent authority may determine and in such a case the period of suspension shall not be treated as period spent on duty unless the competent authority specifically directs that it shall be so treated for any specific purpose.
6. In the present case the respondent was placed under suspension under Rule 10(1) of the CCS(CCA) Rules when it came to the notice of the competent authority that a criminal case against him was under investigation. The investigation was completed, the case was charged in the court, the respondent was tried by the C.B.I. Court, Ernakulam for offences punishable under Sections 7 and 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act and the respondent was convicted for the said offence and sentenced to undergo imprisonment for two years and to pay a fine of Rs. 2000/each under Sections 7 and 13(1)(d) read with Section 13(2) of the said Act. In appeal filed by the respondent the High Court set aside the conviction and sentence on the ground that the prosecution did not succeed in proving the case against the accused beyond reasonable doubt. Consequently, the respondent was reinstated in service. Thus the respondent remained under suspension during the period when the criminal case against him was under investigation or trial or was pending in appeal. In the show cause notice dated 6.5.1999 issued to the respondent, the Principal General Manager stated that the respondent was taken into custody for accepting bribe from a subscriber of telephone, that Crime No. 2 of 1989 under Section 8 of the Prevention of Corruption Act was registered against him by the Deputy Superintendent of Police, Vigilance, that he was placed under suspension since a criminal case against him was under investigation, that he was convicted by the trial court and that therefore his suspension was wholly justified. The Principal General Manager further stated that the respondent was placed under suspension under Rule 10(1) of the CCS(CCA) Rules as he was taken into custody and hence the suspension was wholly justified and that his acquittal by the High Court was not honourable as he was given the benefit of doubt. According to the Principal General Manager the respondent's case fell under Sub-rules (5) and (7) of F.R.54-B. In the order dated 3.6.1999 of the Deputy General Manager the contention of the respondent that he was honourably acquitted on merits was found to be incorrect as the High Court had acquitted him on the ground that he was entitled to the benefit of reasonable doubt and the prosecution had not been able to prove the case beyond reasonable doubt so as to uphold the conviction. Hence the proposal in the show cause notice was confirmed. In the appeal filed by the respondent the Appellate Authority (Principal General Manager) also found that the respondent was acquitted giving him the benefit of doubt. The Appellate Authority also held that the suspension of the respondent was unavoidable as he was under criminal enquiry and was punished by the trial court. According to the Appellate Authority, there was clear provision to proceed against the respondent under the CCS(CCA) Rules even after his acquittal by the High Court, but he was not inclined to order a departmental enquiry as the case was already delayed and the respondent had undergone sufficient hardship. It was further stated that the Appellate Authority was taking a lenient view taking into consideration the time lapsed and the anguish already suffered by the appellant who was also at his fag end of his service. Accordingly the Appellate Authority modified the order of the Deputy General Manager to the extent of granting the respondent the intervening increments for the purpose of fixation of pay on the date of reinstatement. However the Appellate Authority affirmed the order of the Deputy General Manager that the respondent will be entitled only to the subsistence allowance during the period of suspension and that the period of suspension will be counted as on duty only for the purpose of pension. Thus the original authority as well as the appellate authority were not of the opinion that the suspension of the respondent was wholly unjustified. On the other hand, they found that the suspension was unavoidable as the respondent was facing investigation and trial in a criminal case and that the suspension was justified in such circumstances.
7. In our view, the petitioners were right and justified in taking the view that the suspension of the respondent was justified. When a Government servant is facing investigation or trial in a criminal case he is liable to be placed under suspension under the CCS(CCA) Rules. Admittedly, the respondent was facing investigation or trial in a criminal case during the entire period of suspension. Hence the petitioners were right in holding that the suspension of the respondent was justified.
8. It is significant that under F.R.54, when a Government servant who has been dismissed, removed or compulsorily retired is reinstated in service as a result of appeal or review, while regularising the period of his absence from duty, what the authority should consider is " whether the officer has been fully exonerated". On the other hand, when a Government servant is reinstated in service after suspension, while regularising the period of suspension what is to be considered by the authority under F.R.54-B is " whether the suspension was wholly unjustified." Hence the nature of exoneration or acquittal can be relevant for regularising the period of absence only when a government officer who was dismissed, removed or compulsorily retired is reinstated in service and not when a government officer is reinstated in service on revoking the suspension. The question whether or not the suspension of an officer was wholly unjustified, can be determined only with reference to the time when he was placed under suspension and when he continued under suspension. The nature of the exoneration or acquittal at the end of the departmental or criminal proceedings cannot be the criterion for deciding whether the suspension was justified or not. Hence the question to be considered in this case is whether there was sufficient justification for placing the respondent under suspension when he was placed under suspension by the Divisional Engineer, as per his order dated 1.2.1989. Since the respondent was admittedly taken into custody in connection with a criminal offence and was facing investigation in the criminal case at that time, it cannot be disputed that the Divisional Engineer was justified in placing the respondent under suspension in exercise of his power under Rule 10(1) of the CCS(CCA) Rules. The said criminal case was not only charged in court but also ended in conviction of the respondent by the trial court, though in appeal the High Court set aside the conviction on the ground that the prosecution did not succeed in proving the case against the respondent beyond reasonable doubt and that he was entitled to the benefit of reasonable doubt. The suspension of the respondent was justified not only when the order of suspension was issued but also during the entire period he was kept under suspension because during the said period, the respondent was either facing investigation or trial in a criminal case and the CCS(CCA) Rules provided for keeping a Government servant under suspension during such period. In such circumstances we do not find any illegality or material irregularity in the decision of the authorities that the suspension of the respondent was justified and hence the regularisation of the period of his suspension could not be under F.R.54-B(3) and (4). F.R.54-B(3) and (4) are applicable only when the competent authority is of the opinion that the suspension was wholly unjustified. We also uphold the decision of the authorities that the period of suspension of the respondent is liable to be regularised only under F.R.54-B(5) and (7).
9. In the impugned order the Central Administrative Tribunal has taken the view that the respondent was acquitted not on technical grounds but on merits as the prosecution failed to establish the charge and hence there is no merit in the contention of the department that the acquittal was not "honourable acquittal". The Tribunal has also held that since the respondent was reinstated in service on his acquittal and since no disciplinary proceedings were initiated against him, it is idle to contend that the competent authority did not decide that the suspension was wholly unjustified. On a perusal of the judgment of the High Court in Criminal Appeal No. 85 of 1993, it cannot be said that the respondent was "honourably acquitted" by the High Court because the acquittal is based on the findings that "the accused is entitled to the benefit of reasonable doubt" and that "it is not possible to find that the prosecution has succeeded in proving the case against him beyond reasonable doubt and uphold the conviction". There is difference between 'acquittal' and 'honourable acquittal'. A person is honourably acquitted only when the court finds that the case against him is false and not when the court finds that he is entitled to the benefit of reasonable doubt or that the prosecution did not succeed in proving the case against him beyond reasonable doubt.
10. We are of the view that the justifiability of the suspension should depend on the circumstances under which and the reasons for which the Government servant was placed or kept under suspension and not on the result of the trial of the criminal case. In this context the difference between F.R.54 and F.R.54-B assumes significance. As already noted, under F.R.54 while regularising the period of absence from service the authority should consider whether the officer was fully exonerated whereas under F.R.54-B the authority need only consider whether the suspension was wholly unjustified. Hence, even assuming that the acquittal of the respondent was honourable, the suspension of the respondent cannot be said to be wholly unjustified and therefore F.R.54-B(3) cannot apply in his case. Similarly, the fact that after the acquittal in the criminal case the department did not initiate any disciplinary proceedings against the respondent cannot be a relevant consideration for determining whether the suspension of the respondent during the investigation and trial of the criminal case was justified or not.
11. For allowing the application of the respondent, the Tribunal has relied on the judgment of the Honourable Supreme Court in Brahma Chandra Gupta v. Union of India, (1984) 2 SCC 433. We have perused the judgment. In our view, the said judgment was rendered in the peculiar facts of that case and it has no application to the facts of this case. The basic difference is that in the case before the Supreme Court, the authority concerned had not held that the suspension was wholly justified because 3/4 of the salary was ordered to be paid to the Government servant. In the case before us, the authority concerned has held that the suspension of the respondent was wholly justified and that he would be entitled only to the subsistence allowance already paid during the period of suspension. Moreover, F.R.54-B(3) can apply only when the authority is of opinion that the suspension was wholly unjustified. The authority in the present case has not held so.
12. Learned counsel for the respondent submitted that the decision of the Central Administrative Tribunal was also based on Administrative Instruction No. G.I., M.F., O.M. No. F.15(8)-E.IV/57 dated 28.3.1959 which was extracted in paragraph 5 of the impugned order. In our view, the above Administrative Instruction cannot override the provisions contained in the Fundamental Rules and in case of any conflict or inconsistency the provisions contained in the Fundamental Rules should prevail. Hence, notwithstanding the above mentioned Administrative Instruction, the provisions contained in the Fundamental Rules as explained earlier should prevail and the claim of the respondent should be decided in the light of the provisions in the Fundamental Rules. We have already considered the claim of the respondent in the light of the provisions in the Fundamental Rules and have held that the regularisation of the period of suspension in his case should be under Sub-rules (5) and (7) of F.R.54-B.
13. Even as per the above mentioned Administrative Instruction, the claim of the respondent cannot be upheld. According to Clause (b) of the Instruction, 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 turpitude on his part, suspension shall be ordered unless there are exceptional reasons for not adopting that course. In the present case as the charge against the respondent was connected with his official position and it involved moral turpitude on his part, he had to be placed under suspension unless there were exceptional reasons for not adopting that course. The competent authority decided to place him under suspension obviously because there was no exceptional reason for not adopting that course. According to Clause (d) of the Instruction, when a Government servant 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 F.R.54-B, i.e. in the event of his being 'acquitted of blame', the case may be dealt with under F.R.54-B(3); otherwise it may be dealt with under the Proviso to F.R.54-B(5). Since the respondent was not 'acquitted of blame' in the criminal case, F.R.54-B(3) cannot be applied in his case. The expression 'acquitted of blame' is different from the expression 'acquitted'. The expression 'acquitted of blame' means something more than a mere acquittal. It must be such an acquittal that leaves no doubt or trace about the guilt or culpability of the accused officer. The expression 'acquitted of blame' is similar to the expression 'acquitted honourably'. The respondent was not 'acquitted of blame' because his acquittal was based on the findings of the High Court that he was entitled to the benefit of reasonable doubt and that the prosecution did not succeed in proving the case against him beyond reasonable doubt. Hence even Clause (d) of the above mentioned Administrative Instruction cannot support the case of the respondent. The finding of the Tribunal to the contrary cannot be upheld.
14. In the light of the above discussion, the impugned order of the Central Administrative Tribunal cannot be upheld. Hence Ext.P3 order dated 25.9.2001 of the Central Administrative Tribunal, Ernakulam Bench in O.A. No. 1244 of 1999 is set aside and the said O.A. will stand dismissed.