Madras High Court
State Of Tamil Nadu Represented By Its ... vs A. Chinnasamy, Special Revenue ... on 22 December, 2006
Author: S.J. Mukhopadhaya
Bench: S.J. Mukhopadhaya, F.M. Ibrahim Kalifulla
JUDGMENT S.J. Mukhopadhaya, J.
1. This appeal has been preferred by the State of Tamil Nadu against the order in W.P. No. 2177/05 dated 10.3.06 passed by the learned single Judge whereby and whereunder, while the order under challenge was set aside, the appellant was directed to regularise the period of suspension from 7.9.81 to 16.11.82 as per FR 54(B) (9) and with a further direction to pass appropriate order within a period of twelve weeks. It was further ordered to provide the appellant with seniority in the list of Assistants of the year 1983 and in the 1995 list of Deputy Tahsildar by giving all benefits to him for which he is entitled to on par with his juniors.
2. As the case could be disposed of on a short point, it is not necessary to discuss all the facts except the relevant one as shown hereunder. In the appellant-State, there is a provision made for temporary appointment under Rule 10 (a) of the Tamil Nadu State Subordinate Service Rules (hereinafter referred to as the Rules) in the public interest owing to an emergency, the authority is empowered to fill immediately the vacancy in the post from under the cadre of service, class or category if there would be undue delay in making appointment in accordance with the Rules. They are to continue till regular appointment is made or otherwise generally for a period of one year. These appointees were appointed by such stop-gap arrangement for the period from 3.1.80 to 12.2.80. The petitioner was again appointed afresh as Junior Assistant in terms of Rule 10 (a) on 21.7.81. He having been implicated in a criminal case - crime No. 553 of 2001/C.C. No. 118/97, was suspended on 7.9.81. While under suspension, he applied through the employment exchange and was appointed afresh as Record Assistant on 17.11.82 in the Commercial Taxes Department of the State. In the Commercial Taxes Department, he was promoted to higher posts as Junior Assistant on 14.2.91 and then as Assistant on 10.2.95. Ultimately, he was acquitted in the criminal case.
3. After his acquittal, while the petitioner prayed for regularisation of service of the period of suspension and consequential benefits, the appellant (respondent in the writ petition), issued impugned G.O. Ms. No. 395 dated 18.9.03 and rejected the claim.
4. While claiming for consequential monetary and other benefits, the petitioner pleaded that he would have got through the special test conducted by the Tamil Nadu Public Service Commission and would have been appointed as Junior Assistant if he would have not been placed under suspension and thereby consequential benefit as Junior Assistant in the other department (i.e.) Commercial Tax Department was also sought for. By the impugned order, G.O. Ms. No. 395 dated 18.9.03, the appellant rejected the claim on the following grounds:
a) The special test was conducted by Tamil Nadu Public Service Commission on 28.6.81, prior to his appointment as Junior Assistant (on 21.7.81 under rule 10 (a)), he was not entitled to claim any benefit on the ground that he would otherwise have competed and would have been appointed through the special test;
b) The appointment of the petitioner as Junior Assistant being temporary under Rule 10 (a), he having been involved in criminal case, should have been removed from service; and
c) The orders issued by the Tahsildar, Attur, placing the petitioner under suspension was not correct.
5. Learned Counsel for the appellant-State took similar plea and submitted that appointment of petitioner as Junior Assistant under Rule 10 (a) being temporary, he could not have been suspended and for that FR 54 (B) is not attracted and the petitioner cannot derive benefit of the same. It was also alleged that the petitioner has got himself appointed through the employment exchange as Record Assistant on 17.11.82 suppressing the fact that a criminal case was pending against him and that he was under suspension and thus his subsequent appointment is also not in accordance with law. In fact, such plea has also been taken by the appellant in its impugned order dated 18.9.03.
6. In the present case, neither the engagement of the petitioner as temporary Junior Assistant on 21.7.81 nor his regular appointment as Record Assistant as was made on 17.11.82 in the Commercial Taxes Department is under challenge. Therefore, the issue relating to illegality and propriety of one or other order of appointment cannot be raised nor could be determined while deciding the question as to what consequential benefit the petitioner was entitled to having been acquitted in the criminal proceeding. The aforesaid plea taken by the appellant being beyond the scope for determination of issue, such action of the appellant-State is deprecated.
7. So far as suspension is concerned, it is settled law that the question of payment of salary for the period is dependent on rule, if any, framed. If there is a provision to suspend and to pay subsistence grant/subsistence allowance during the period of suspension, the competent authority could suspend and will pay subsistence grant/subsistence allowance during the period of suspension as per rule/guideline prescribed by the competent authority. In absence of a rule, it is always open to the appointing authority not to take work; but in absence of rule of suspension and in absence of any rule for payment of subsistence allowance, or in absence of any such guideline, the competent authority is bound to pay full salary, even if no work is taken.
8. If the stand of the appellant-State is accepted that petitioner ought not to have been placed under suspension, he being a temporary Junior Assistant, and ought to have been removed from service, in that case the order of suspension should go and the petitioner will be entitled to full salary for the period of suspension. On the other hand, if the order of suspension is held to be in accordance with law, on its revocation and final outcome of judicial/departmental proceeding, the competent authority is liable to determine as to how the period of suspension has to be accounted and what salary to which the charged employee is entitled for such period. Normally if a person is acquitted of the charges, the period of suspension is treated as on duty and he is paid full salary for the period after adjustment of subsistence allowance already paid, if there is no rule otherwise.
9. Sub-rule (9) of FR 54(B) relates to payment of salary for the period of suspension, when a person is acquitted of judicial proceeding, which reads as follows:
9. Where a Government Servant is, -- a)Placed under suspension in view of the fact that a complaint against him of any criminal offence is under investigation or trial; or
b) dismissed or removed from service or compulsorily retired on the ground of conduct which has led to his conviction on a criminal charge and the Government servant is subsequently reinstated in service on his acquittal by the Court either on merits or on the ground that the charge has not been proved against him or by giving benefit of doubt or on any other technical ground, or on the ground that he has been pardoned by the Court as he turned approver based on his judicial confession, he must be regarded as having been prevented from discharging his duties and the period of his absence including the period of suspension shall be treated as duty for all purposes and he shall be paid full pay and allowances which he would have been entitled to, had he not been under suspension, or dismissed or removed or compulsorily retired from service.
10. As per the aforesaid Sub-rule (9) of FR 54 (B), the petitioner having been acquitted, even if by giving the benefit of doubt, is entitled for full salary and allowance for the period of suspension as if he had not been under suspension. If the Fundamental rule is not applicable, then it is more worse, that is, in the absence of rule, the petitioner will be entitled to full salary for the period of suspension in absence of rule for subsistence allowance. If the stand taken by the respondent is accepted that the petitioner should not have been suspended, that is even more worse as the appellant-State cannot challenge its own order and in such case also, the petitioner will be entitled for full salary having been suspended illegally. Thus, in any case, the petitioner having been acquitted of the criminal charges, is entitled to full salary for the period of suspension as if he had not been suspended.
11. So far as other consequential benefit is concerned, according to us, the petitioner is not entitled for any other benefit in the post under the commercial taxes department. His engagement as Junior Assistant made on 21.7.81 was a stop-gap arrangement till regular appointment is made, which is normally for a period of one year. The petitioner had no right to hold the post of Junior Assistant. He was suspended on 7.9.81, but subsequently he left the service and joined the post of Record Assistant in the Commercial Taxes Department of the State by direct recruitment through employment exchange on 17.11.82. Thus the order of suspension stood revoked with effect from 17.11.82, having been appointed as Record Assistant and having received the salary. Such appointment being a fresh appointment, the petitioner cannot derive any benefit of his stop-gap working as Junior Assistant, even if the period of suspension is accounted towards duty. The stop-gap arrangement of a temporary employee in another post (herein it is higher post of Junior Assistant) cannot be counted for determination of seniority or any other benefit in another service if appointed afresh, that too in a lower post (herein it is the post of Record Assistant). Therefore, the petitioner is neither entitled for any consequential benefit of fixation of seniority, inclusion of his name in the promotion list of Junior Assistant or Assistant on the basis of the adhoc arrangement rendered between 7.9.81 to 16.11.82.
12. In the circumstances, while we affirm the part of the impugned judgment dated 18.3.06 passed by the learned single Judge so far as it relates to regularisation of the period of suspension from 7.9.81 to 16.11.82 and for payment of salary for such period after adjusting the subsistence allowance, if any, paid, the rest part of the impugned judgment dated 18.3.06 passed by the learned single Judge regarding fixation of seniority, inclusion of his name in the 1983 list of Assistant and in the 1995 list of Deputy Tahsildar is set aside. The writ appeal is allowed in part with the abovesaid observations and directions. However, in the facts and circumstances, there shall be no order as to costs. Consequently, connected miscellaneous petitions are closed.