Madhya Pradesh High Court
The State Of Madhya Pradesh vs Dr. B.P. Dubey (Dr. Badri Prasad Dubey) on 24 April, 2019
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THE HIGH COURT OF MADHYA PRADESH
W.A.No.340/2019
(State of M.P. & another Vs. Dr. B.P. Dubey)
Gwalior, Dated:-24.04.2019
Mr. Pratip Visoriya, learned Government Advocate for the
appellants/State.
Mr. Pawan Dwivedi, learned counsel and Mr. S.P. Jain, learned
counsel for the respondent.
This appeal under Section 2(1) of the Madhya Pradesh Uchch Nyayalaya (Khand Nyay Peeth Ko Appeal) Adhiniyam, 2005 is directed against the order dated 11.08.2016 passed in Writ Petition No.1097/2005(s).
There is delay of 834 days which is sufficiently explained vide I.A.No.795/2019. Besides, the issue which arises for consideration is of wider implication, in our considered opinion, the delay deserves to be condoned.
The issue is whether an employee who is placed under suspension for having proceeded in a criminal case can as a matter of right claim full pay of the suspension period, if later he is acquitted in the criminal case.
The relevant facts giving rise to the issue are that, the respondent while posted as Incharge Superintendent-cum-District Ayurveda Officer, Guna was suspended by order dated 15.10.2001 on account of his being prosecuted for an offence under Section 7, 13(1) D and 13(2) of Prevention of corruption Act 1988, registered vide 2 THE HIGH COURT OF MADHYA PRADESH W.A.No.340/2019 (State of M.P. & another Vs. Dr. B.P. Dubey) Crime No.20/2000. The respondent remained suspended till 29.02.2004 when the suspension was revoked on his attaining the age of superannuation. Later, in the criminal case, the respondent was acquitted vide judgment dated 08.04.2004. As despite the representation, the petitioner was not paid full pay and allowance of the period from 09.08.2001 to 29.02.2004, he filed Writ Petition No.1097/2005(S) for the following reliefs :
"(a) That, a Writ of Certiorari or any other appropriate writ, Order or Direction may kindly be issued to the respondents directing them to settle and make the payment of retiral claims due and payable to the petitioner as detailed hereinabove in para 5.13 of the writ petition, immediately within a reasonable time.
(b) The respondents be further directed to make the payment of interest at the rate of 12% per annum on the amount due and payable to the petitioner towards his aforesaid retiral claims, from the date the said amount fell due to the petitioner.
(c) Any other such orders or directions which the Hon'ble Court may deem fit and proper in the facts and circumstances of the case, be also passed alongwith the costs of the writ petition."
Learned Single Judge relying on the decision in State of Punjab Vs. Shambhu Nath Singla, 1996 (1) MPWN SN 214 and Kanhaiyalal Parmar Vs. State of M.P. And others, 2006 (2) MPLJ 522 allowed the claim holding that :
3THE HIGH COURT OF MADHYA PRADESH W.A.No.340/2019 (State of M.P. & another Vs. Dr. B.P. Dubey) "In view of the aforesaid enunciation of law, the impugned order dated 7.2.2007 so far it directs that the petitioner shall not be entitled salary and allowances for the period from 15.10.2001 to 29.2.2004 is hereby quashed.
The respondents are directed to settle the claim of the petitioner with regard to salary and allowances of the aforesaid period within a period of three months from the date of receipt of the copy of the order passed today, failing which the amount shall carry interest at the rate of 9% per annum and the aforesaid period i.e. from 15.10.2001 to 29.2.2004 shall be treated as on duty for all purposes."
Exception is taken to the impugned judgment on the anvil of the judgment of Supreme Court in Raj Narain Vs. Union of India & others, wherein it is held:
"5. This Court in Ranchhodji Chaturji Thakore (supra) considered the case of an employee who sought back wages for the period he was kept out of duty during the pendency of a criminal case for his involvement in an offence under Section 302, IPC. The claim of the Petitioner therein was that he was entitled to full wages on his acquittal by the Criminal Court. This Court rejected the said submission by holding that the question of payment of back wages would arise only in case of termination of service, pursuant to findings recorded in a departmental enquiry. In the event of the dismissal order being set aside by the Court, the delinquent employee would be entitled to claim back wages as he was unlawfully kept away from duty by the employer. This Court was of the opinion that an employee against whom criminal proceedings are initiated would stand on a different footing in comparison to an employee facing a departmental inquiry. The 4 THE HIGH COURT OF MADHYA PRADESH W.A.No.340/2019 (State of M.P. & another Vs. Dr. B.P. Dubey) employee involved in a crime has disabled himself from rendering his services on account of his incarceration in jail. Subsequent acquittal by an Appellate Court would not entitle him to claim back wages.
6. The decision of Ranchhodji Chaturji Thakore (supra) was followed by this Court in Union of India and Others v. Jaipal Singh (supra) to refuse back wages to an employee who was initially convicted for an offence under Section 302 read with Section 34 IPC and later acquitted by the High Court in a criminal appeal. While refusing to grant relief to the Petitioner therein, this Court held that subsequent acquittal would not entitle an employee to seek back wages. However, this Court was of the opinion that if the prosecution is launched at the behest of the department and the employee is acquitted, different considerations may arise. The learned counsel for the Appellant endeavored to distinguish the prosecution launched by the police for involvement of an employee in a criminal case and the criminal proceedings initiated at the behest of the employer. The observation made in the judgment in Union of India and Others v.
Jaipal Singh (supra) has to be understood in a manner in which the department would become liable for back wages in the event of a finding that the initiation of the criminal proceedings was mala fide or with vexatious intent. In all other cases, we do not see any difference between initiation of the criminal proceedings by the department vis-a-vis a criminal case lodged by the police. For example, if an employee is involved in embezzlement of funds or is found indulging in demand and acceptance of illegal gratification, the employer cannot be mulcted with full back wages on the acquittal of the person by a criminal Court, unless it is found that the prosecution is malicious.
5THE HIGH COURT OF MADHYA PRADESH W.A.No.340/2019 (State of M.P. & another Vs. Dr. B.P. Dubey)
7. The point that remains to be considered is whether the Appellant is entitled to payment of full wages between 1979 and 1987. The Appellant was placed under suspension on 23.10.1979 and his suspension was revoked on 21.10.1987. An interesting development took place during the interregnum by which the disciplinary proceedings were dropped on 21.03.1983. It is clear from the record that the Appellant was the one who was seeking postponement of the departmental inquiry in view of the pendency of criminal case. The order of suspension was in contemplation of disciplinary proceedings. By virtue of the disciplinary proceedings being dropped, the Appellant becomes entitled to claim full salary for the period from the date of his suspension till the date of closure of the departmental inquiry. Thereafter, the Respondents took four years to reinstate him by revoking his suspension. The order of suspension dated 23.10.1979 came to an end on 21.03.1983 which is the date on which disciplinary proceedings were dropped. The Appellant ought to have been reinstated immediately thereafter unless a fresh order was passed, placing him under suspension during the pendency of the criminal trial which did not happen. Ultimately, the Appellant was reinstated by an order dated 21.10.1987 by revocation of the order of suspension. Though, technically, the learned Additional Solicitor General is right in submitting that the impugned judgment does not even refer to the I.A., we are not inclined to remit the matter to the High Court at this stage for fresh consideration of this point. We hold that the Appellant is entitled for full wages from 23.10.1979 to 21.10.1987 after adjustment of the amounts already paid towards subsistence allowance.
8. For the reasons mentioned above, we 6 THE HIGH COURT OF MADHYA PRADESH W.A.No.340/2019 (State of M.P. & another Vs. Dr. B.P. Dubey) approve the judgment of the High Court by holding that the Appellant shall be entitled for back wages only from the date of acquittal on 31.08.2001, till the date of his reinstatement on 20.01.2003. Further, the Appellant shall be entitled to full salary from 23.10.1979 to 21.10.1987."
A Division Bench of this Court in Prakash Kumar Sahu Vs. Union of India & others, 2012 (2) MPLJ 347 dwelling on the issue as the present one has held :
"10. The question as to how the period of suspension, where the suspension is because of the criminal prosecution, on its revocation after acquittal of the Government servant, is it to be treated, is governed by Rules, viz., Fundamental Rules 54 B. Sub-rules (1), (3) and (8) of FR 54 B are relevant in the context. These sub rules stipulate:
"F.R. 54-B. (1) When a Government servant who has been suspended is re-instated or would have been so re-instated but for his retirement on superannuation while under suspension, the authority competent to order re-instatement 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 7 THE HIGH COURT OF MADHYA PRADESH W.A.No.340/2019 (State of M.P. & another Vs. Dr. B.P. Dubey) 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 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.
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11. 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 by the verdict in Umashankar Choubey (supra) wherein the instance was of the case where the suspension was held as unjustified.
12. 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.
13. 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 his arrest in connection with a criminal charge. 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 9 THE HIGH COURT OF MADHYA PRADESH W.A.No.340/2019 (State of M.P. & another Vs. Dr. B.P. Dubey) 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 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).
14. In Ranchhodji Chaturji Thakore (supra) 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 10 THE HIGH COURT OF MADHYA PRADESH W.A.No.340/2019 (State of M.P. & another Vs. Dr. B.P. Dubey) 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 jail. Under these circumstances, the petitioner is not entitled to payment of back wages. .... "
15. In Jaipal Singh (supra) 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..........."
16. The principle then was followed in Baldev Singh (supra) 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 11 THE HIGH COURT OF MADHYA PRADESH W.A.No.340/2019 (State of M.P. & another Vs. Dr. B.P. Dubey) 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."
17. True it is that these were not the cases regarding FR 54 B; however, the suspension, the circumstances which led to such suspension and the consequence in the event of the revocation was dwelt upon in these cases, wherein it is unanimously held that criminal case not at the instance of the department, a revocation of suspension after his acquittal will not entitle him for back-wages as such suspension cannot be said to be unjustified."
The impugned order when tested on the anvil of the above analysis cannot be given the stamp of approval. Consequently, it is set aside. The respondent/petitioner is held not entitled for full wages for the period from 09.08.2001 to 29.02.2004. However, the said period will not be treated as break in service.
In result, the appeal is disposed of finally in above terms. No costs.
(Sanjay Yadav) (Vivek Agarwal)
Judge Judge
bj/-
BARKHA
JHA
2019.04.2
9 11:10:06
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