Madhya Pradesh High Court
Amrit Singh Kori vs The State Of Madhya Pradesh on 4 July, 2018
THE HIGH COURT OF MADHYA PRADESH
1
WP.7509.2016
Amrit Singh Kori
Vs.
The State of Madhya Pradesh and others
Gwalior, 04.07.2018
Shri Raj Shrivastava, learned counsel for the
petitioner.
Shri Harish Dixit, learned Government
Advocate, for the respondents/State.
With the consent of learned counsel for the parties, the matter is finally heard.
The issue which crops up for consideration in this petition is as to whether an employee having been suspended for being detained for more than 48 hours owing to registration of criminal case would be entitled for the pay, allowances and the increments for the period during which he remained under suspension on the acquittal in the criminal case.
Relevant facts giving rise to the issue very briefly are that, the petitioner was proceeded against in a criminal case on the charge of abetment under Section 306 of IPC vide Crime No.530/2012. In relation thereto he was arrested on 16.01.2013 and was in police custody for over 48 hours. The detention led to an action by the employer in purported exercise of powers under Sub-Rule (2) of Rule 9 of the M.P.CCS (CCA) Rules 1966, and by order dated 18/01/2013 was placed under suspension [such suspension in service jurisprudence is termed as statutory suspension, THE HIGH COURT OF MADHYA PRADESH 2 WP.7509.2016 Amrit Singh Kori Vs. The State of Madhya Pradesh and others for an authority please see "General Manager, Uco Bank and another Vs. M. Venu Ranganath (2007) 13 SCC 251"]. In the criminal case the petitioner was acquitted by judgment dated 20.10.2015. Consequence whereof, the suspension was revoked by order dated 29.10.2015. The petitioner raised a demand for wages, allowances and increments for the period from 18/01/2013 to 29.10.2015; i.e. for the period when he was kept under suspension. As the representation did not reap any result, present writ petition is filed seeking the relief as sought vide said representation.
The petitioner has placed reliance on FR 54B of Madhya Pradesh Fundamental Rules to bolster the claim; Clause (1) and (3) whereof 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 THE HIGH COURT OF MADHYA PRADESH 3 WP.7509.2016 Amrit Singh Kori Vs. The State of Madhya Pradesh and others 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.
(2) Notwithstanding anything contained in rule 53, where a Government servant under suspension dies before the disciplinary or 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 re-instatement 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 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 THE HIGH COURT OF MADHYA PRADESH 4 WP.7509.2016 Amrit Singh Kori Vs. The State of Madhya Pradesh and others 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."
Evidently, FR 54B does not deal with statutory suspension as would create any right in favour of the petitioner. The petitioner was proceeded against in a criminal case not at the instance of the employer, but because of his own givings and was arrested and detained for more than 48 hours which led his suspension which cannot be termed as unjustified.
In "Union of India and others Vs. Jaipal Singh [(2004) 1 SCC 121]", it is held:
"4. On a careful consideration of the matter and the materials on record, including the judgment and orders brought to our notice, we are of the view that it is well accepted that an order rejecting a special leave petition at the threshold without detailed reasons therefor does not constitute any declaration of law by this Court or constitute a binding precedent. Per contra, the decision relied upon for the appellant is one on merits and for reasons specifically recorded therefor it operates as a binding precedent as well. On going through the same, we are in respectful agreement with the view taken in Ranchhodji Chaturji Thakore THE HIGH COURT OF MADHYA PRADESH 5 WP.7509.2016 Amrit Singh Kori Vs. The State of Madhya Pradesh and others Vs. Supdt. Engineer, Gujarat Electricity Board [1996] 11 SCC 603. 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 it 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. Consequently, the reasons given in the decision relied upon, for the appellants are not only convincing but are in consonance with reasonableness as well. Though exception taken to that part of the order directing re- instatement cannot be sustained and the respondent has to be reinstated in service, for the reason that the earlier discharge was on account of those criminal proceedings and conviction only, the appellants are well within their rights to deny back wages to the respondent for the period he was not in service. The appellants cannot be made liable to pay for the period for which they could not avail of the services of the respondent. The High Court, in our view, committed a grave error, in allowing back wages also, without adverting to all such relevant aspects and considerations. Consequently, the order of the High Court insofar as it directed payment of back wages is liable THE HIGH COURT OF MADHYA PRADESH 6 WP.7509.2016 Amrit Singh Kori Vs. The State of Madhya Pradesh and others to be and is hereby set aside.
5. The respondent will be entitled to back wages from the date of acquittal and except for the purpose of denying the respondent actual payment of back wages, that period also will be counted as period of service, without any break. The reinstatement, if not already done, in terms of the order of the High Court will be done within thirty days from today."
In "Greater Hyderabad Municipal Corporation Vs. M. Prabhakar Rao [(2011) 8 SCC 155]", it is held:
"15. Sub-rule (3) of FR 54-B does not state that in case of acquittal in 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 THE HIGH COURT OF MADHYA PRADESH 7 WP.7509.2016 Amrit Singh Kori Vs. The State of Madhya Pradesh and others 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 it, such opinion of the competent authority would not be interfered with by the Tribunal or the Court."
In view of the above analysis, petitioner cannot be held entitled for the wages and other benefits for the period he remained under suspension during the pendency of criminal case. However, as there is no order of treating the period of suspension as break in service, petitioner would be entitled to count said period of service for the retiral dues.
The petition is finally disposed of in above terms. No costs.
(Sanjay Yadav) Judge pd PAWAN DHARKAR 2018.07.09 10:50:08 -07'00'