Telangana High Court
Sangi Linga Raju vs The Transport Commissioner on 30 September, 2024
THE HONOURABLE SMT JUSTICE T.MADHAVI DEVI
W.P(TR).No. 3601 of 2017
ORDER:
In this writ petition, the petitioner is challenging the proceedings R.No.5154/V3/V2/2005, dated 23.12.2014 rejecting the case of the petitioner for regularization of suspension period from 21.05.2005 to 22.11.2007 as on duty, as illegal, arbitrary and contrary to F.R.54(8) and to set aside the same with all consequential benefits including promotion to the post of Administrative Officer with effect from 01.06.2007 i.e., from the date of promotion of his immediate junior with all consequential benefits and to pass such other order or orders in the interest of justice.
2. Brief facts leading to the filing of the present writ petition are that the petitioner was appointed as a Typist on 01.07.1989 and later he was promoted as Senior Assistant on 01.11.1996. While the petitioner was working as Senior Assistant in the office of Deputy Transport Commissioner, Adilabad, he was placed under suspension on 24.05.2005 on the ground that ACB case was registered against him along an unofficial person. Subsequently, he was reinstated into service on 21.11.2007. The petitioner was acquitted from the ACB case 2 TMD,J W.P(TR).No. 3601 of 2017 registered in C.C.No.47/2010 on the file of II Additional Special Judge for SPE and ACB Cases, City Civil Court, Hyderabad, vide its judgment dated 13.03.2013 and against the said acquittal, State preferred a Criminal Appeal No.850 of 2013 before this Court and it was admitted on 22.07.2013. The petitioner submitted representations to the respondents to regularize the suspension period 'as on duty' since he has been acquitted in the criminal case. The petitioner sought relief under F.R.54(B). When there was no reply from the respondents, he filed O.A.No.6594/2014 before the Andhra Pradesh Administrative Tribunal and vide orders dated 26.11.2014, the Tribunal directed the respondent No.1 to dispose of the representation of the petitioner dated 03.07.2014 seeking regularization of the suspension period i.e., from 21.05.2005 to 22.11.2007 as on duty within a period of four weeks from the date of receipt of a copy of the order. It is submitted that consequent to the directions of the Tribunal, the representation of the petitioner was considered, but rejected vide proceedings dated 23.12.2014 on the ground that the Criminal Appeal filed by the State is pending before the Hon'ble High Court. Challenging the same, the present writ petition has been filed.
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TMD,J W.P(TR).No. 3601 of 2017
3. Learned counsel for the petitioner while reiterating the above submissions and the contentions raised in the O.A., has submitted that F.R.54(B) provides as to how when the suspension period is to be treated as on duty when an employee is acquitted in a criminal case. It is submitted that respondent No.1 passed the impugned order without indicating as to how the rule under F.R.54(B) is not applicable to the case on hand. It is submitted that the criminal appeal against the acquittal order is not bar for regularizing the suspension period 'as on duty' as the criminal appeal cannot be considered as continuation of the criminal case against the petitioner. It is further submitted that one of the junior to the petitioner has been promoted as Administrative Officer on 01.06.2007 and therefore, after regularization of the suspension period, he should be considered for promotion as Administrative Officer on par with his junior.
4. Learned counsel for the petitioner in support of his contentions, has placed reliance upon the decision of the Hon'ble Supreme Court in the case of C.O.Armugam and Others Vs. State of Tamil Nadu and Other 1. She further placed reliance upon the decisions of the Division Bench of this 1 1990 (1) SLR 298 SC 4 TMD,J W.P(TR).No. 3601 of 2017 Court in W.P.No.1025 of 2011 and W.P.Nos.27607, 27614 and 22929 of 2009, dated 28.01.2010.
5. Learned Government Pleader, however, relied upon the averments made in the counter affidavit and submitted that the petitioner was arrested by the ACB authorities in a trap case and therefore, he was placed under suspension as per Sub rule 2(a) of Rule 8 of APSC (CCA) of 1991 as he was detained in police/judicial custody for more than forty eight hours. It is submitted that petitioner was reinstated into service on 21.11.2007 on instructions of the Government vide Memo dated 20.11.2007. It is submitted that even if the petitioner has been acquitted in the criminal case, the ACB authorities have filed an appeal before the High Court and therefore, the suspension period cannot be regularized at this stage under F.R.54(B).
6. In support of his contentions, learned government pleader has placed reliance upon the judgment of the Hon'ble Supreme Court in the case of Greater Hyderabad Municipal Corporation Vs. M.Prabhakar Rao 2. As regards the orders of the Division Bench of this Court relied upon by the learned counsel for the petitioner, the learned government pleader 2 (2011) 8 SCC 155 5 TMD,J W.P(TR).No. 3601 of 2017 submitted that they were with regard to the payment of pension and gratuity after acquittal in the criminal cases, whereas in the present case, the petitioner is seeking regularization of the suspension period. He therefore, prayed for dismissal of the writ petition.
7. Having regard to the rival contentions and the material on record, this Court finds that the only issue in this case is whether on acquittal in the criminal case, the suspension period of the petitioner can be regularized as on duty. The F.R.54 deals with such situations. For the sake of ready reference and clarity, relevant provision is reproduced here under:
F.R.54-B:
(1) When a Government servant who has been suspended is reinstated or would have been so reinstated but for his retirement (xxxxxxx) 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 on superannuation, as the case may be; and
(b) whether or not the said period shall be treated as a period spent on duty.6
TMD,J W.P(TR).No. 3601 of 2017 (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.7
TMD,J W.P(TR).No. 3601 of 2017 [(5) In cases other than those falling under sub-rules (2) and (3) the pay and allowances payable to the Government servant for the period of suspension, shall be limited to the subsistence allowance already paid under FR.53].
(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, [xxx]:
Provided that if the Government servant so desires, such authority may order that the period of suspension shall be converted into leave of any kind due and admissible to the 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] of the full pay and allowances determined under the proviso to sub-rule (3) or under sub-rule (5) shall not be less than subsistence allowance and other allowances admissible under Rule 53.
8. From the literal reading of the above provision, it is clear that regularization of suspension period can only be considered after conclusion of the criminal proceedings or the disciplinary proceedings against the employee. In this case, the 8 TMD,J W.P(TR).No. 3601 of 2017 criminal case has been registered by the ACB authorities and admittedly no disciplinary proceedings were initiated by the department. After the trial of the criminal case, it has ended in acquittal of the petitioner. Therefore, his case is to be considered for regularization of the suspension period under F.R.54(B). The petitioner was reinstated into service pending finalization of the disciplinary or Court proceedings. As held by the Division Bench of this Court, the criminal appeals filed against the acquittal in a criminal case is not the continuation of the criminal proceedings so as to deprive of his retirement benefits such as pension and other benefits. While rendering such a decision, the Division Bench of this Court has considered the judgment of the Calcutta High Court in the case of State of West Bengal and Others Vs. Hari Ramalu and Another, reported in 2000 (4) SLR 91, and it was held that if the appeal or revision proceedings are in continuation of the criminal proceedings, there will be no end for the litigation and the employees, who have been acquitted honorably, will not get retirement benefits till conclusion of all the appeals, revisions, SLP, etc., and therefore appeal against the acquittal not being continuation of the original criminal proceedings, will not be 9 TMD,J W.P(TR).No. 3601 of 2017 available to the Government for withholding the retirement benefits.
9. The decision of the Hon'ble Supreme Court relied upon by the learned government pleader is in respect of F.R.54(B)(3) of Andhra Pradesh Fundamental Rules and relevant paragraph is reproduced hereunder:
Para-15. Sub-rule (3) of FR 54-B does not state that in case of acquittal in a criminal proceedings the employee is entitled to his salary and allowances for the period of suspension. Sub-rule (3) of FR 54-B also does not state that in such case of acquittal the employee would be entitled to his salary and allowances for the period of suspension unless the charge of misconduct against him is proved in the disciplinary proceedings. Sub-rule (3) of FR 54-B vests power in the competent authority to order that the employee will be paid the full pay and allowances for the period of suspension if it is of the opinion that the suspension of the employee was wholly unjustified. Hence, even where the employee is acquitted of the charges in the criminal trial for lack of evidence or otherwise, it is for the competent authority to form its opinion whether the suspension of the employee was wholly unjustified and so long as such opinion of the competent authority was a possible view in the facts and circumstances of the case and on the materials before him, such opinion of the competent authority would not be interfered by the Tribunal or the Court.
10. From the said judgment, it is clear that the disciplinary authority has to form its opinion whether the suspension of employee was wholly unjustified to deny the payment of salary and allowances for the period of suspension. 10
TMD,J W.P(TR).No. 3601 of 2017 Therefore, the stand of the disciplinary authority in the present case that because the criminal appeal is pending, the petitioner is not entitled for regularization of the suspension period is not sustainable.
11. In view of the above, and since the petitioner has retired from service, this Court deems it fit and proper to direct the respondent No.2 to pass orders under 54(B) of the said Rule in view of the acquittal of the petitioner in a criminal case, without regard to the pendency of criminal appeal before this Court. The respondent No.2 shall pass orders within a period of four (4) months from the date of receipt of a copy of this order.
12. Accordingly, the writ petition is disposed of. There shall be no order as to costs.
13. Miscellaneous petitions, if any, pending in this writ petition, shall stand closed.
____________________________ JUSTICE T.MADHAVI DEVI Date: 30.09.2024 bak