Central Administrative Tribunal - Madras
M Venkatesan vs D/O Post on 20 December, 2023
1 OA 460/2019
CENTRAL ADMINISTRATIVE TRIBUNAL
CHENNAI BENCH
OA/310/00460/2019
th
Dated the 20 day of December Two Thousand Twenty Three
CORAM : HON'BLE MS. LATA BASWARAJ PATNE, Member (J)
HON'BLE MR. VARUN SINDHU KUL KAUMUDI, Member (A)
M. Venkatesan, S/o P. Muthusamy,
3/98-2, Selliamman Koil Street,
V. Vedapatti Post & Village, Vilathikulam Taluk,
Thoothukudi District - 628 907. ...Applicant
By Advocate M/s. K. M. Ramesh
Vs
1.Union of India rep by,
The Chief Postmaster General,
Tamil Nadu Circle,
Anna Salai, Chennai - 600 002.
2.The Chief Post Master,
Anna Road HO,
Chennai - 600 002.
3.The Deputy Chief Postmaster,
O/o. The Chief Postmaster,
Anna Road HO, Chennai - 600 002. ....Respondents
By Advocate Mr. R. S. Krishnaswamy
2 OA 460/2019
ORDER
(Pronounced by Hon'ble Mr. Varun Sindhu Kul Kaumudi, Member(A)) This OA has been filed by the applicant, seeking the following relief:-
"The applicant humbly pray that this Hon. Tribunal may be pleased to set aside the impugned proceedings dated 08.05.2018 issued by the 3rd Respondent and the impugned order issued by the 2nd Respondent dated 23.08.2018 and consequently direct the Respondents to treat the period of deemed suspension from 26.08.2011 to 31.12.2011 as duty along with all consequential monetary benefits."
2. The brief facts of the case, according to the Applicant, are as under :-
i. The Applicant was working as Postman, Pudur SO, Kovilpatti Division. He was arrested and imprisoned for more than 48 hours in a false and fabricated criminal case on 14.08.2010 and was placed on deemed suspension between 14.08.2010 and 30.12.2011. The Criminal Court acquitted the Applicant in the said criminal case, passing on the benefit of doubt, as the Prosecution had failed to prove the guilt beyond reasonable doubt. The Applicant requested the Disciplinary Authority to treat his deemed suspension period as "Duty", with full wages, which was rejected by the Disciplinary Authority. The Applicant preferred an appeal against the order of the Disciplinary Authority which was also rejected on the ground that the Applicant was acquitted only on the ground of benefit of doubt. Hence, this application to set aside the impugned proceedings.
ii. During the year 2010, the Applicant was arrested and imprisoned for more than 48 hours in a case vide FIR No.143 of 2010, filed at the Vilathikulam Police Station, on 14.08.2010, in an alleged private quarrel. Accordingly, the 3 OA 460/2019 Applicant was placed under deemed suspension with effect from 14.08.2010, vide Memo No. IP/KOLE/Disc-dlgs/M. Vengadesan, dated 26.08.2010, issued by the Inspector of Posts, Kovilpatti, in connection with the said criminal offence under investigation and detention of the official in custody for a period exceeding 48 hours.
iii. The applicant submits that after periodical review of deemed suspension, he was reinstated into service vide Memo No. IP/KOLE/Disc-dlgs/M. Vengadesan, dated 30.12.2011, by revoking the said order of deemed suspension. Accordingly, the Applicant resumed duty and continues to be employed till now.
iv. The trial in the said criminal case continued and the learned Additional Sessions Judge, Kovilpatti, passed an order acquitting the applicant in the said criminal case, vide his Judgement, order dated 20.02.2014, in S.C.No.30 of 2011, exonerating him of all charges on benefit of doubt, as the Prosecution had failed to prove his guilt beyond reasonable doubt.
v. The Applicant submits that immediately on receipt of the order of the Criminal Court, he made a request to the Senior Superintendent of Post Offices, Kovilpatti Division, Kovilpatti- 628 501, vide his letter, dated 14.07.2014, by attaching the Court Order, to regularise his deemed suspension period along with back wages.
vi. The applicant submits that, in the meantime, he successfully completed departmental examination and got promoted as Postal Assistant at Anna Road 4 OA 460/2019 HPO, Chennai - 600002, with effect from November, 2015. vii. He submitted a representation to regularize the period of suspension by treating the entire period as on duty with all monetary benefits. The 3rd Respondent, who is the Disciplinary Authority, by his impugned Proceedings, dated 08.05.2018, rejected his request for regularization of his deemed suspension period with back wages without citing any provision or rationale for such a rejection by stating that "period of suspension... to be treated as Non-duty for all purposes including pension and restrict the pay and allowances of the official for the said period to the amount already drawn and paid to him". viii. He preferred an appeal, dated 18.05.2018, against the order of rejection of his request, regularization of deemed suspension. The appeal of the applicant, which was rejected by the Appellate Authority, namely, the 2nd Respondent vide his Order, dated 23.08.2018, while confirming the order of the disciplinary authority, by stating that, "in exercise of the provision of Rule 27(3) of CCS(CCA) Rules, 1965..... hereby reject the appeal dated 18.05.2018 from Sri. M. Venkatesan, PA, AnnaRoad HPO and uphold the order of Dy. Chief Postmaster (Try) issued vide Memo No.INV/MV ARD dated 08.05.2018."
5 OA 460/2019ix. While rejecting the applicant's appeal, the 2nd Respondent, in the concluding Para of the order, stated that 'concept of Honorable Acquittal and full exoneration are not to be invoked in this case and I find no reason to interfere in the decision of Deputy Chief Postmaster (Try) & Disciplinary Authority Anna Road HΡΟ'
3. Main grounds advanced by the applicant for Relief, with Legal Provisions, are as follows:
i. The action of the Disciplinary Authority and Appellate Authority's interpretation and construction of an order of Criminal Court which is not related to service of the Applicant is prima facie incorrect as they are neither empowered to interpret nor has expertise or power to do so. ii. The action of the Disciplinary Authority and Appellate Authority is arbitrary, illegal and unjustified in not accepting the order of acquittal and to extend the benefit of the same on the technical grounds without necessary power and authority to do so.
iii. The act of the Disciplinary Authority and Appellate Authority's failure to state under what provision, rules or regulations they are empowered to act as judicial authorities in differentiating the nature of acquittal order in a criminal case which is not related to service rules of the applicant which is nothing but act of transgression of judicial powers by them.
iv. Neither the order of the Disciplinary Authority nor the order of the Appellate Authority state that under which service rule they are making an order 6 OA 460/2019 rejecting the claim of the Applicant is nothing but an order of summary rejection and not a speaking order which shows their ultimate aim to go beyond their jurisdiction, power and authority in denying the rights of the Applicant which is otherwise the Applicant entitled to.
v. Both the Disciplinary Authority and the Appellate Authority failed to appreciate the fact that neither the de-facto complainant nor the State filed any appeal against the order of acquittal which otherwise proves that the said criminal case is false and fabricated one.
vi. Both the Disciplinary Authority and the Appellate Authority failed to appreciate the fact that both of them neither have the expertise nor power to interpret Para 10 of the judgement in view of criminal jurisprudence which clearly and squarely bring out the fact there is no eye public witness statement before Court of Law which confirms very commission of crime nor such crime committed by Applicant and that any such attempt to interpret the same would be nothing but illegal and arbitrary in nature.
4. The Respondents have filed reply opposing the relief on the ground that:-
4.1 Shri M. Venkatesan, Postal Assistant, Anna Road HO, while working as Postman Pudur SO, under Kovilpatti Division was detained under Police custody on 14.08.2010 for a period exceeding 48 hours, in connection with a criminal offence. The official was placed under deemed suspension, w.e.f 14.08.2010.7 OA 460/2019
4.2 The suspension of the official was extended periodically as per the recommendations of the Suspension Review Committee. As per the recommendation of the Review Committee, convened on 26.12.2011, the suspension of the above official was revoked, vide IP Kovilpatti East Sub Division, Memo no.IP/Kol E/Disc-Dlgs/M.vengadesan, dt 30.12.2011, and the official rejoined duty on 01.01.2012, subject to finalization of the Criminal Case.
4.3 The Applicant submitted a representation dated 14.07.2014, along with the judgment, dated 20.02.2014, of the Assistant Sessions Judge, Kovilpatti, in Sessions case No.30 of 2011, wherein it was ordered that the applicant was exonerated on benefit of doubt as the prosecution could not establish that the accused had committed the crime.
4.4 The Applicant was declared successful in the LGO Examination, 2014, and allotted to Anna Road HO as surplus qualified candidate and appointed as PA, Anna Road HPO, w.e.f 15.11.2015.
4.5 The Applicant submitted a representation, dated 10.01.2017, requesting to regularize the suspension period, from 14.08.2010 to 31.12.2011, and to draw pay and allowances for the said period, along with a copy of report of Asst.
Sessions judge, Kovilpatti, dated 28.12.2016, wherein it was stated that there is no appeal preferred and pending against the said Court Order. 4.6 The 3rd Respondent, who is the Competent Authority to decide further course of action to regulate the period during which the Applicant was under 8 OA 460/2019
suspension, issued a show cause notice, vide Memo No. INV/SV/ARD, dated 15.03.2018. After getting representation, dated 12.04.2018, of the Applicant, the 3rd Respondent treated the period of suspension from 14.08.2010 to 31.12.2011 of the Applicant as 'Non-duty' for all other purposes including pension and restricted the pay and allowances of the official for the said period to the amount already drawn and paid to him as Subsistence Allowance, vide Memo No. INV/MV.ARD, dated 08.05.2018.
4.7 Against the above order, the Applicant has preferred an appeal, dated 18.05.2018, to the 2nd Respondent. The 2nd Respondent rejected the appeal vide Memo No. INV/MV/ARD, dated 23.08.2018.
4.8 The 2nd Respondent, while considering the appeal, observed that the Applicant was not acquitted honourably, but only on the benefit of doubt and, therefore, he could not be said to have been exonerated on merits. 4.9 The Respondents have argued that there are many Court Cases in which various Courts have held that when an employee is acquitted of the charges in the Criminal Trial for lack of evidence or otherwise, it is for the Competent Authority, who is vested with the power to decide on the facts and circumstances of the case, whether the employee deserves any salary, and, if he does, the extent to which he deserves it. It is submitted that the Hon'ble Supreme Court of India and the Hon'ble High Court, in various similar cases, have held that the claim for treating the period of suspension as period spent on duty because of acquittal in criminal case is not entertainable. The following 9 OA 460/2019 cases among them have been cited below:
i. Judgment of Hon'ble Supreme Court in the case of the Union of India Vs K.V Janakiraman & Ors.
ii. Judgment, dated 28.7.2011, of the Hon'ble Supreme Court in the case of the Greater Hyderabad Municipal Corporation Vs Shri M. Prabhakara Rao: The Hon'ble Supreme Court, in the judgement, dated 28.7.2011, in CA No.6014/2011, in the case of the Greater Hyderabad Municipal Corporation Vs Shri M.Prabhakara Rao (2011) 9 SCR 594, held that the wages for the period of suspension and other consequential benefits cannot be claimed based on acquittal in a criminal case and that the order passed by the competent authority under FR 54(B) is valid.
iii. Judgment of the Hon'ble Supreme Court in the case of Krishna Kant Raghunath Bibhavnekar Vs State of Maharashtra 1997(2) SLJ SC 166. iv. Judgment of the Hon'ble High Court of Kerala in the case of the Union of India Vs T.P. Gopinath.
v. Judgment, dated 26.4.2007, of the Hon'ble High Court of Madras in the case of the Chairman, Ordinance Factory Board Vs R.P. Ramesh Murugan: The Hon'ble High Court, in the order, dated 26.04.2007, in WP No.32046/2005, in the case of UOI Vs R.P. Ramesh Murugan, citing the various decisions of the Hon'ble Supreme Court in the case of UOI & Others and Jaypal Singh 2004(1) LNN 520, etc., held that, for the employer or public servant who got involved in a criminal case, but got acquitted, the Department cannot in any manner be 10 OA 460/2019 found fault with for having kept him out of service and, therefore, held that the suspension was justified, and that the employee was not entitled to get pay and allowances during the period of suspension.
vi. In another judgment, dated 13.9.2011, of the Hon'ble High Court of Madras, in WP No.13454/2009, in the case of Shri P.M. Ramadass Vs the Director General, Railway Protection Force, Railway Board, New Delhi, it was held that, under the provisions of FR 54(B), even when 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 such opinion would not be interfered with by the Tribunal or Courts, and dismissed similar claim.
vii. The Hon'ble High Court, New Delhi, in the judgement, dated 20.11.2007, in the case of WP No.977/2005 filed by Shri Prem Singh Vs Delhi Transport Corporation held that acquittal does not automatically entitle an employee to get salary for the period of suspension and the Department cannot be made liable to pay for the period for which it could not avail his service and, therefore, the Department was well within its rights to deny back wages to employee for the period he was not in service on the logic of 'no work, no pay'. viii. The Central Administrative Tribunal, Ahmedabad Bench, in the order, dated 25.10.2010 in OA No.152/2009, in the case of Shri Mahavirsingh Ajitsinh Jadeja Vs Chief PMG, Gujarat Circle, held that the suspension of an employee detained in a criminal case for more than 48 hours is mandatory under 11 OA 460/2019 Rule 10 (2) of CCS (CCA) Rules, 1965, and acquittal does not automatically mean that he has to be treated as on duty during the suspension and upheld the decision of the Competent Authority in exercising the powers vested under FR 54 (B) and treating the period of suspension as Non-duty in a similar case.
The Respondents pleaded that, on the basis of the above judgments, the claim of the Applicant, to treat the period of suspension as duty for all purposes, is not entertainable.
5. It has been submitted on behalf of the Respondents that the Chief Post Master, Anna Road HO, Chennai, the 2nd Respondent, while considering the appeal of the applicant, has carefully considered all the points therein.
6. It is further submitted that in Para 6 of the Reinstatement-A Digest in Swamy's Guide on Suspension and Reinstatement, it is stated that if the order of acquittal of the Government Servant is recorded on the grounds of technical flaw in the prosecution, if the available evidence could not be produced before the Court for assessment and for that reason the guilt of the Government Servant could not be brought home, the acquittal cannot be regarded as 'honourable acquittal' and the Government Servant cannot be said to have been exonerated on merits. It is further stated that as in Court Judgments the use of expression 'exoneration on merits' and the like may not be found, it is left to the Authority ordering reinstatement to determine the circumstances of each case, whether the acquittal by a Court of Law should be taken to mean exoneration of merits or not and, accordingly, the Authority, Competent to revoke suspension, i.e., 12 OA 460/2019 (Disciplinary Authority) made specific order regarding the pay and allowances to be paid for the period of suspension and whether or not, the period shall be treated as period spent on duty and the Appellate Authority upheld the order of Disciplinary Authority. Grant of full wages as a matter of course to a person who is suspended on valid consideration and acquitted for other reasons such as lack of evidence, etc., would be deleterious to the maintenance of discipline. It is for the Competent Authority to decide, based on the facts and circumstances of the case and on the Principles of Natural Justice. The averment of the Applicant that the action of the 3rd and the 2nd Respondents is arbitrary, illegal and unjustified in not accepting the order of acquittal has been denied.
7. The issue in the Criminal Court, according to the Respondents, is not related to service. It is due to involvement of the Applicant in the allegations, in which the Respondents had no role. His absence from duty was not attributable to the Department. The Department need not be concerned about the reasons for not going into appeal by the Police Authorities. The Department was there well within its rights to deny back wages to the employee for the period he was not in service. Hence the orders passed by the 3rd and the 2nd Respondents are in order.
8. Heard both sides and perused the records.
9. As argued by the Respondents, grant of consequential benefits with all back wages, etc., on revocation of suspension and on acquittal, cannot be claimed as a matter of course.
13 OA 460/2019
10. Judgements of the Hon. Supreme Court as well as Hon. High Courts of Madras and Delhi above make it amply clear that the Department cannot be made liable to pay for the period for which it could not avail the services of an employee and the Department was well within its rights to deny back wages to the employee for the period he was not in service on the logic of 'no work, no pay'. The Ahmedabad Bench of this Tribunal has also observed in OA 152/2009 that acquittal does not automatically mean that he has to be treated as on duty during the period of suspension and has upheld the decision of the Competent Authority in treating the period of suspension as non-duty in exercise of the powers vested under FR 54 (B). Similar view has been taken by the Hon. Supreme Court in the case of the Greater Hyderabad Municipal Corporation where it held that the wages for the period of suspension and other consequential benefits cannot be claimed based on acquittal in a criminal case and that the order passed by the Competent Authority under FR 54(B) is valid.
11. There is no doubt in this case that the court of the Assistant Sessions Judge, Kovilpatti, had framed charges against the accused under several sections of the I.P.C in Sessions Case No. 30/2011. It is clearly mentioned in Column 5 itself of the order, dated 20.02.2014, of the Assistant Sessions Judge that the "Accused is acquitted ..... on the basis of benefit of doubt". In the light of the facts of the case and the observations of the Criminal Court, there are no grounds to interfere with the orders of the 2nd and the 3rd Respondents. 14 OA 460/2019
12. The OA is, accordingly, dismissed. No Order as to costs.
(Varun Sindhu Kul Kaumudi) (Lata Baswaraj Patne)
Member (A) Member (J)
20.12.2023