Telangana High Court
Satthaiah vs The State Of Telangana on 29 March, 2022
Author: P.Madhavi Devi
Bench: P.Madhavi Devi
THE HON'BLE SMT. JUSTICE P.MADHAVI DEVI
W.P. No.7989 of 2021
ORDER:
This writ petition has been filed seeking a writ of mandamus to declare the Impugned Memo No.1457/VC-2/2017, dated 26.06.2019 issued by the first respondent and its consequential orders issued in Rc.No.E6A/OGH/Hyd/2019/1111, dated 11.09.2019, rejecting the petitioner's claim for treating the suspension period (of 13.08.1998 to 22.06.2005) 'as on duty' in view of acquittal in Criminal Appeal No.92/2004 dated 10.06.2005 by the IV Additional Metropolitan Sessions Judge as illegal and arbitrary.
2. The brief facts of the case leading to the filing of this writ petition are that the petitioner was appointed as Kamati in the year 1982 and was working under the control of third respondent till his services were regularized. In the year 1998, the petitioner was placed under suspension on the ground that a criminal case has been registered against him under Criminal case i.e. CC.No.421 of 2000 on the file of X Metropolitan Magistrate, Hyderabad.
3. The petitioner was initially convicted for the crime and later, on appeal of the petitioner, he was acquitted of the charges. The petitioner, therefore, made a representation to the authorities to regularize the suspension period as 'on duty'. Since there was no reply by the respondents, the petitioner was constrained to approach the Andhra Pradesh Administrative Tribunal by 2 filing O.A.No.2137 with M.A.No.278/2017 and the same was disposed of directing the respondents to consider the case of the petitioner.
4. In the mean time, the petitioner retired from services on 10.06.2017, on attaining the age of superannuation. The petitioner was not paid the emoluments for the said period since the suspension period was not treated as 'on duty'. Accordingly the petitioner has made a representation and on 26.06.2019, the same was disposed of vide Memo No.1457/VC-2/2017 holding that the petitioner has been acquitted on the ground of 'benefit of doubt' and therefore the provisions of FR.54-A(3) would apply and the suspension period cannot be treated as 'on duty' in cases where the employees have been acquitted by the courts on benefit of doubt. Challenging the said rejection order, the present petition is filed.
5. The learned counsel for the petitioner submits that in the criminal Court, a petitioner has been acquitted on the ground that the respondent's prosecution failed to prove the charges framed against the petitioners i.e. A3 and A4 in Crl. Appeal No.92 of 2004 beyond reasonable doubt and not on benefit of doubt. Therefore, he submits that the provisions of Rule 54 (2) and 54 (3) are applicable and the petitioner's suspension period should have been treated as 'on duty'.
6. The learned Government Pleader for services relies upon the contentions raised in counter affidavit particularly in para 8 of the counter wherein, it is stated that the petitioner has been acquitted by the court on benefit of doubt and therefore the suspension period cannot be treated as 'on duty'.
3
7. The learned counsel for the petitioner also placed reliance upon the judgment of the Supreme Court in Raj Narayana Vs. Union of India and others in Civil Appeal No. 3339/2019 in support of the proposition that where an employee has been acquitted of the charges, by the Courts, such an employee is entitled for full wages for the suspension period.
8. Having regard to the rival contentions and on perusal of the material, the issue herein is where an employee has been acquitted in criminal case for which he was suspended from duty, whether to treat the suspension period as 'on duty' or not. For this purpose, Rule 54 and Rule 54-A of the Fundamental Rules and Subsidiary Rules are to be seen.
Rule 54 reads as under:-
F.R.54. (1) When a Government servant who has been dismissed, removed or compulsorily retired is re-instated as a result of appeal or review or would have been so re-instated but for his retirement on superannuation [while under suspension or not] the authority competent to order re-instatement shall consider and make a specific order-
(a) regarding the pay and allowances to be paid to the Government servant for the period of his absence from duty including the period of suspension preceding his dismissal, removal or compulsory retirement, as the case may be ; and
(b) whether or not the said period shall be treated as a period spent on duty.
(2) Where the authority competent to order re-instatement is of opinion that the Government servant who had been dismissed, removed or compulsorily retired has been fully exonerated, the Government servant 4 shall, subject to the provisions of sub-Rule (6), be paid the full pay and allowances to which he would have been entitled, had he not been dismissed, removed or compulsorily retired or suspended prior to such dismissal, removal or compulsory retirement, as the case may be:
Provided that where such authority is of opinion that the termination of the proceedings instituted against the Government servant has 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, subject to the provisions of sub-Rule (7), be paid for the period of such delay, [only such amount (not being the whole) of such pay and allowances] as it may determine.
(3) In the case falling under sub-Rule (2), the period of absence from duty including the period of suspension preceding dismissal, removal or compulsory retirement, as the case may be, shall be treated as the period spent on duty for all purposes.
F.R.54A. (1) Where the dismissal, removal or compulsory retirement of a Government servant is set aside by a Court of law and such Government servant is re-instated without holding any further inquiry, the period of absence from duty shall be regularised and the Government servant shall be paid pay and allowances in accordance with the provisions of sub-Rule (2) or (3) subject to the directions, if any, of the Court.
(2) [(i) Where the dismissal, removal or compulsory retirement of a Government servant is set aside by the Court solely on the ground of non-compliance with the requirements of Clause (1) or Clause (2) of 5 Article 311 of the Constitution, and where he is not exonerated on merits, the pay and allowances payable to the Government servant for the period of dismissal, removal or compulsory retirement or suspension prior to such dismissal, removal or compulsory retirement, as the case may be, shall be limited to the subsistence allowance entitled/already paid under FR 53 for the entire period during which the Government servant was not on duty.]
(ii) The period intervening between the date of dismissal, removal or compulsory retirement including the period of suspension preceding such dismissal, removal or compulsory retirement, as the case may be, and the date of judgment of the Court shall be regularised in accordance with the provisions contained in sub-Rule (5) Rule 54.
(3) If the dismissal, removal or compulsory retirement of a Government servant is set aside by the Court on the merits of the case, the period intervening between the date of dismissal, removal or compulsory retirement including the period of suspension preceding such dismissal, removal or compulsory retirement, as the case may be, and the date of re-instatement shall be treated as duty for all purposes and he shall be paid the full pay and allowances for the period to which he would have been entitled, had he not been dismissed, removed or compulsorily retired or suspended prior to such dismissal, removal or compulsory retirement as the case may be.
Thus, from the reading of above provision it is seen that, Sub-Rule 3 of Rule 54-A, specifies that if the dismissal, removal or compulsory retirement of a Government servant is set aside by the court on the merits of the case, the period intervening between the date of dismissal, removal or compulsory retirement including the period of suspension preceding such dismissal, removal or compulsory retirement as the case may be and the date of reinstatement shall be treated as duty for all purposes and shall be 6 regularized and the Government servant shall be paid, pay and allowances in accordance with the provisions of sub-rule (2) or (3) subject to the directions of the court, if any.
9. The case before this Court is that the petitioner was not removed from services but was only suspended and after acquittal, the suspension was revoked and the petitioner, thereafter retired from service. The only issue for adjudication in this writ petition is whether the criminal court has acquitted the petitioner on 'benefit of doubt' or 'on merits'. On perusal of the order of the criminal Court, the case appears to be of acquittal on the ground of absence of evidence beyond reasonable doubt and therefore it is not a case of mere benefit of doubt. The provisions of rule 54-A (3) are applicable to this case and the petitioner is entitled to emoluments during the suspension period as 'on duty'.
10. Therefore, in view thereof, writ petition is allowed and the respondents are directed to make payment for the suspension period within a period of 90 days from the date of receipt of the copy of this order.
Writ petition is accordingly allowed. No order as to costs. Miscellaneous applications, if any pending, shall also stand dismissed.
_____________________________ JUSTICE P.MADHAVI DEVI Date: 29.03.2022 BV