Calcutta High Court (Appellete Side)
Virender Singh vs Union Of India & Ors on 14 November, 2019
Author: Shampa Sarkar
Bench: Shampa Sarkar
14.11.2019
Court No. 19
Item No. 14
Ashoke
W.P. 3001(W) of 2018
Virender Singh
-versus-
Union of India & Ors.
Mr. Soumya Mazumdar,
Mr. Manj Malhotra,
Mr. Ravi Kumar Dubery.
... For the Petitioner.
Mr. Swapan Kumar Nandi.
... For the Union of India.
The facts as canvassed in the writ petition are not in dispute. The petitioner
while serving as the Deputy Inspector General (Provisioning) at Tac Hqrs
Frontier Head Quarter, BSF, Bhilai, he was served with an order dated September
9, 2019 issued by the Deputy Inspector General (Personnel), Hq. DG, BSF, bearing
Memo No. C-14011/33/2013/CC/ PERS/BSF/2933-42 suspending him with immediate
effect until further orders.
It was provided in the said order of suspension that the pay and allowance of
the petitioner during the period of suspension would be regulated under FR 53.
After expiry of a period of 1 year and 2 months, by a letter dated November 17,
2014 the petitioner sought for revocation of his suspension. The prayer for
revocation was denied to the petitioner by a letter dated December 15, 2014
issued by the DIG (Confd). On the other hand, a complaint was lodged with the
Central Bureau of Investigation (CBI) against the petitioner for commission of
offences punishable under Section 120B IPC, read with Sections 7, 12, 13(2) and
13(1)(d) of the Prevention & Corruption Act, 1988 (hereinafter referred to as
'the said act'). The order of suspension was issued under Rule 40A of the BSF
Rules, 1969. The CBI was entrusted with the investigation in the matter which
culminated in filing of a charge-sheet before the learned Special Judge, (CBI)
Court, Siliguri.
The learned Special Judge, took congnizances of the offences and directed that
the petitioner be tried for commission of offence under Section 7 and Section
13(1)(d) and Section 13 (2) of the Prevention of Corruption Act. It is informed
from the Bar that the trial is proceeding before the Special Judge, CBI Court,
Siliguri.
This writ petition has been filed with a prayer for revocation and/or setting
aside of the order of suspension on the ground of continuation of suspension for
an indefinite period, in violation of the provisions of Sub-Rules 3A, 4 & 5 of
Rule 40A, was illegal. It was further contended that as Rule 40A did not
provide for payment of subsistence allowance, or the rate at which a suspended
employee of the Border Security Force would be paid during the period of
suspension, the petitioner would be entitled to his full salary during the
suspended period.
During the pendency of the writ petition, the Deputy Inspector General
(Confidential), BSF, Ministry of Home Affairs, Government of India, issued an
order dated February 22, 2019, revoking the order of suspension of the
petitioner in exercise of power under sub-rule 3A of Rule 40A of the BSF Rule,
1969. It was further provided that such revocation was due to the fact that the
petitioner would not be able to influence witnesses. However the revocation was
without prejudice to the ongoing criminal proceeding pending against the
petitioner. Regularisation of the period when the petitioner was under
suspension was to be disposed of, on the finalisation of the criminal
proceeding. The said order of revocation has been brought on record by way of a
supplementary affidavit.
The first contention of Mr. Mazumdar, learned advocate, appearing on behalf of
the petitioner is that FR-53 did not have any manner of application in case of
an employee of the Border Security Force inasmuch as, the terms and conditions
of service of employees of the Border Security Force were governed by the Border
Security Force Act, 1968 and the Border Security Force Rules, 1969. According
to Mr. Mazumdar, Rule 40A provided that an employee under the Border Security
Force could be placed under suspension if a disciplinary proceeding was either
contemplated or pending against him or in the opinion of the authority, he was
engaged in activities prejudicial to the interest or the security of the State
or where a case against him in respect of any civil offence was under
investigation, enquiry or trial. He contends that FR 53 was not adopted and the
Rules were silent about the payment of subsistence allowance.
In this case, the petitioner was suspended as an investigation for commission of
a civil offence was pending against him. The suspension was not in contemplation
of a disciplinary proceeding. From the date of suspension till the date of
revocation of the order of suspension, the authorities did not initiate any
disciplinary proceeding against the petitioner. Even after revocation of the
order of suspension, the authority did not contemplate to initiate a
disciplinary proceeding against the petitioner, eventually the petitioner was
allowed to retire on April 30, 2019.
It is contended by Mr. Mazumdar that such revocation and subsequent retirement
of the petitioner would mean that the petitioner according to the employer was
not required to be kept under suspension any longer and the effect of the
revocation would be restoration of his service from the date of suspension. Mr.
Mazumdar, further, submits that as Rule 40A of the Border Security Force Rules,
1969 did not provide for payment of subsistence allowance during the period of
suspension, the petitioner was entitled to full salary during the period of
suspension and subsistence allowance as per FR 53 has been illegally conferred
upon him. Specific pleadings to that effect has been made in the petition.
Pointing to the provision of fundamental rules, Mr. Mazumdar contends that the
rules were applicable only to government servants.
FR 2 provides that the said rules applied subject to the provisions of Rule 3
thereof to all Government servants whose pay was debitable to civil estimates
and to any other class of Government servants to which the President may, by
general or special order, declare them to be applicable.
Rule FR 3 provides that unless it is otherwise definitely provided by or under
those Rules, the Fundamental Rules do not apply to Government employees whose
conditions of service are governed by Army or Marine Regulations.
On a conjoint reading of the above two provisions, Mr. Mazumdar submits that
employees of the Border Security Force who were governed by the Special Rules
would not be guided by the Fundamental Rules.
According to Mr. Mazumdar, FR 53 would not be applicable in this case and he
prays for refixation of his subsistence allowance at the rate of full salary
payable to any employee similarly situated as the petitioner alongwith the
incremental benefits and revision made from time to time. Mr. Mazumdar relies
on the decision of the Hon'ble Apex Court, reported in AIR 1968 S.C. 800 in the
case of Balvantrai Ratilal Patel -vs- State of Maharashtra & Ors., and another
decision of the Hon'ble Division Bench of this Court, reported in 2009(1) CLJ
CAL 410 in the Secretary of the Managing Committee of Rabindra Smrity (S) Bidya
Niketan and Others -versus- Sri Mahadeb Bhattercherya and Others.
The alternative argument of Mr. Mazumdar is that once there has been a
revocation of the suspension without initiation of a disciplinary proceeding in
exercise of power of review by the Central Government and the petitioner has
been allowed to retire, the period of suspension should be treated as 'on duty'
and the petitioner should be paid his full salary during the suspended period.
On this point, Mr. Mazumdar relies on the decisions in the matter of Gurpal
Singh v. High Court of Judicature for Rajasthan, reported in (2012) 13 SCC 94
and Kanailal Das v. CSTC, reported in (2002) 93 FLR 798.
Mr. Nandy, learned advocate appearing on behalf of the respondents submits that
Section 75 of the BSF Act was a bar to initiation of disciplinary proceedings against the petitioner in view of the pendency of the criminal trial. He submitted that according to the Vigilance Procedure and Practice Manual, upon completion of the investigation the CBI, would forward a report to the Central Vigilance Commission for sanction for prosecution and without the direction of the Central Vigilance Commission a departmental proceeding could not be initiated. He further relies on the Central Vigilance Commission Act, 2003, specifically Sections 8-A and 8-B and submits that disciplinary proceeding could be initiated only upon conclusion of a preliminary inquiry into the charges of corruption and upon giving an opportunity of hearing to the public servant. Mr. Nandy has failed to demonstrate before this court that FR 53 was applicable in case of the petitioner and has not made any submission in this regard. It is also true that the Hon'ble Apex Court decided way back in 1968 in Balvantray Patilal Patel (supra) that if there were no statutory rules or regulations providing for the remuneration to be paid to a suspended employee under the service rules governing such employee, the employee was entitled to full salary.
A similar view was also taken by an Hon'ble Division Bench of this Court in the matter of the Secretary of the Managing Committee of Rabindra Smriti (S) Bidya Niketan and ors. v. Sri Mahadeb Bhattacharya & ors, reported in 2009 (1) CLJ
410. On the basis of the two judgments as the BSF Rules do not provide for payment of subsistence allowance during the period of suspension, the petitioner was entitled to his full salary.
Admittedly, the petitioner was allowed to retire without initiation of a disciplinary proceeding. The service rules applicable to the petitioner, i.e., the BSF Rules 1969, does not provide for continuation of a disciplinary proceeding after superannuation of the employee. The criminal trial is continuing and if the petitioner is found guilty, he will be punished under the criminal law with imprisonment as also fine. The allegation of acceptance of Rs.60,000/- as bribe in four instalments is the subject matter of the criminal case. There is no other allegation of moral turpitude against the petitioner by his employer. The criminal court is empowered to decide the culpability of the petitioner in the crime as alleged. The criminal court has the power to convict the petitioner under the law as also impose fine. However the employer at this stage does not have any authority to proceed against the petitioner. The employer is only interested to see that the petitioner is tried by the criminal court for the civil offence committed.
Under such circumstances, the entire period of suspension upon the revocation of the order of suspension amounts to restoration of service of the petitioner from the date of suspension, i.e., September 9, 2013.
Reliance is placed on the decision of this Court in the matter of Kanailal Das (supra). The relevant paragraph of the said decision is quoted below:
"5. It appears from the record that while disposing of the application as infructuous, the Court did not observe anything with regard to the payment of difference for the period under suspension. Obviously, no disciplinary proceeding was undertaken till the petitioner had retired. There is no order with regard to the status of the petitioner for the period during which he was under suspension. Such order can be passed only at the conclusion of the disciplinary proceedings. If the disciplinary proceeding is not held, in that event, it is to be construed to mean that there was no disciplinary proceeding held against the petitioner. The petitioner can be held to be under suspension for the period only if something is found against the petitioner and the charges alleged against him involved in the proceedings were proved. Unless the disciplinary proceeding, is held, charges cannot be deemed to be proved. Thus disciplinary proceeding being non-est in the eye of law, the petitioner cannot be kept under suspension for the period in respect of which no disciplinary proceeding was held. If the charges disappear, in that event, there cannot be any ground to keep the petitioner under suspension. Suspension disappears with the disappearance of the charges. Therefore, by no stretch of imagination the period spent under suspension could be treated to be period spent under suspension. This is a settled proposition of law with regard to which no one can harbour any doubt. If the period of suspension disappear then the petitioner shall be deemed to be in service and would be entitled to full pay."
In my opinion, the action of the authority in keeping the petitioner under suspension for several years without initiating any disciplinary proceeding leads to the conclusion that the employer/authority did not wish to punish the petitioner for commission of the offences under his service rules. In the decision of Gurpal Singh (supra), the Hon'ble Apex Court held that the reinstatement of an employee would not automatically entitle him to full back wages but payment of full back wages would depend on the materials on record. In this case, although the employer had the power to initiate a disciplinary proceeding during the period of suspension, the authority did not choose to initiate the same, thereafter, reviewed the order of suspension revoked it and allowed the petitioner to retire from service. It appears that the employer was only interested to wait for the outcome of the criminal proceeding. However the outcome in the criminal proceeding would not empower the employer to take any steps against the petitioner under the service rules as the petitioner has already retired and the master-servant relationship between the petitioner and the respondents had ceased. There is also no allegation of causing any monetary loss to the employer. The service rule does not empower the employer to proceed against the petitioner after his retirement.
The contention of Mr. Nandy that the departmental proceeding was barred under Section 75 of the Border Security Force Act is not acceptable.
Section 75 speaks about protection against double jeopardy which provides that, if an employee under the BSF Act was proceeded against and was either acquitted or exonerated with regard to commission of a civil offence or was dealt with under Sections 53 or 55 of the said Act, then the said employee could not be tried for the same offence twice. The vigilance manual, referred to by Mr. Nandy, deals with the steps to be taken by the CBI for sanction for prosecution. Section 8-A and 8-B of the Vigilance Commission Act has no manner of application in this case.
Under such circumstances, the writ petition is allowed to the extent that the petitioner will be paid his full salary on and from September 9, 2013 upto the date of revocation of the suspension order. The salary payable to the petitioner for the entire period will include the periodical increments and revisions which may have been otherwise payable to him had he not been under suspension. The entire payment of the arrears (the actual full salary, less the amount paid) will be made in six equal instalments. The first of such instalments to be paid by January 10, 2020.
The writ petition is thus disposed of. There will be, however, no order as to costs.
Urgent photostat certified copy of this order, if applied for, be given to the parties as expeditiously as possible upon compliance of usual formalities.
(Shampa Sarkar, J.) 1 11