Central Administrative Tribunal - Allahabad
Sundar Singh vs Union Of India on 13 February, 2025
Reserved on 20.01.2025
Central Administrative Tribunal, Allahabad Bench, Allahabad
This the 13th day of February, 2025
Hon'ble Mr. Justice Om Prakash VII, Member (J)
Hon'ble Mr. Mohan Pyare, Member (A)
Original Application No. 849 of 2011
Sunder Singh aged about 53 years, Son of late Ram Ashrey Singh,
Employed as Tailor / HS in Ordnance Equipment Factory Kanpur
under Ticket No. 1436/T-2/105656, R/o H.No. 114, E.W.S. K.D.A.
Colony Daheli Sujanpur Kanpur Nagar.
........... APPLICANT
By Advocate: Shri Vishwambhar Nath Pandey
Versus
1. Union of India, Through the Secretary, Ministry of Defence,
Deptt. Of Defence Production & Supplies, New Delhi - 11.
2. Addl. Director General Ordnance (Coordination & Service)
Directorate of Ordinance (Coordination & Service) 10 A S K
Bose Road Kolkata 700001
3. Addl General Manager Ordinance Equipment Factory A Unit of
Troop Comforts Ltd Gov of India Enterprise Kanpur 208001.
..........RESPONDENTS
By Advocate: Shri Vinod Kumar Pandey
ORDER
(Delivered by Hon'ble Mr. Justice Om Prakash VII, Member (J) Shri Vishwambhar Nath Pandey, learned counsel for the applicant and Shri Vinod Kumar Pandey, learned counsel for the respondents, were present at the time of hearing.
2. The instant original application has been filed seeking following relief:
"i. To issue a writ, order or direction in the nature of Certiorary quashing the impugned order dated 12.12.2009 (Anneuxre A-1) and 26.04.2011 (Anneuxre A-2) passed by the respondent no. 3.
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1|Page ii. To issue a writ order or direction in the nature of Mandamus directing the respondent No. 3 to pay full pay & allowances for the period of suspension from 28.07.1994 to 19.07.1996 treating the same as spent on duty for all intents and purposes including increments & promotions accrued during this period and also other consequential benefits.
iii. To issue any other direction as this Hon'ble Court / Tribunal may deem fit and proper in the circumstances of the case.
iv. To award cost throughout to the applicant."
3. A compendium of the facts as have been narrated in the present original application is that the applicant who stands retired on this date, is aggrieved by the order dated 12.12.2009 passed by the respondents' department by way of which respondents have proposed to regularize the period of deemed suspension / suspension of the applicant from 28.07.1994 to 19.07.1996 by grant of leave due and admissible to him. On the contrary, the contention of the applicant is that since the suspension / deemed suspension was effected on account of the fact that the applicant was placed under police custody for an alleged offence in which he was later granted acquittal, he is liable to be granted full pay and allowances for the aforesaid period treating the same as spent on duty. To support his case, the applicant has relied upon several case laws and rule positions. Respondents, on the other hand, have contended that the applicant was framed and convicted in a criminal case on a plethora of charges. Although he was exonerated later, upon careful consideration of all the aspects of the case, documents on record, the Competent Disciplinary Authority of the respondents came to the conclusion that the exoneration of the applicant is not on merits and this cannot be treated as honourable acquittal. Thus, since the applicant was not on duty for the aforesaid period of suspension and did not perform any official work, he cannot be given pay and allowances for that period unless the same is regularized by sanction of leave admissible and due to him. By way of the instant original application, applicant has sought quashing of the order dated 12.12.2009 thereby directing the respondents to grant RITU RAJ SINGH
2|Page full pay and allowances for the period of suspension from 28.07.1994 to 19.07.1996 treating the same as spent on duty for all intents and purposes including increments & promotions accrued during this period and also other consequential benefits.
4. We have heard learned counsels for the parties and perused the documents on record.
5. Initiating his arguments, learned counsel for the applicant submitted that the applicant, who stands retired now, was falsely implicated in a criminal case due to family dispute and a case was registered under Section 323/506/498-A of IPC. He was detained in police custody w.e.f. 28.07.1994 to 16.08.1994 and accordingly was placed under deemed suspension for the aforesaid period vide order dated 16.08.1994. During that period, the respondents did not review the suspension at any time whereas as per existing rules i.e., under Rule 11(6) of CCS (CCA) Rules, 1965, the suspension or deemed suspension must be reviewed before expiry of ninety days from the date of order of suspension on the recommendations of Review Committee constituted for the purpose of either extending or revoking the suspension. In this case, the applicant's deemed suspension was neither reviewed nor extended after review at any time during the period of ninety days and hence, it was invalid and the entire period must be counted as period spent on duty. Further, the applicant was not issued any charge sheet and no disciplinary proceedings have been initiated against him for the said purpose and no penalty was imposed on him but the two annual increments due in between the suspension period, were not given to him. Even, vide order dated 19.07.1996, the respondents revoked the suspension order w.e.f. 19.07.1996 and took the applicant on duty w.e.f. the same date.
6. Learned counsel for the applicant further argued that the matter of criminal case pending before the Metropolitan Magistrate came up for trial and the applicant was acquitted from the charges under section 323/506 of IPC but punished for the charges under Section RITU RAJ SINGH
3|Page 498-A of IPC on 12.09.2008. Applicant preferred an appeal against the aforesaid order and on 11.06.2009, the sessions court of ADJ XIII, Kanpur dismissed the judgment, conclusions and punishment orders dated 12.09.2008 of Metropolitan Magistrate Kanpur and also acquitted the applicant from the charges of 498-A of IPC vide their order dated 11.06.2009. After acquittal, the applicant submitted a representation dated 15.06.2009 requesting therein to take departmental action on the matter of withholding of promotison due to criminal case pending against him. Subsequently, the respondent no. 3 passed the order dated 12.12.2009 proposing therein to regularize the period of deemed suspension / suspension from 28.07.1994 to 19.07.1996 by grant of leave due and admissible to him. Against the aforesaid order, the applicant represented vide his representation dated 14.01.2010 and lastly requested to grant him full pay and allowances for the deemed suspension / suspension as his acquittal has been made on merits. On the representation of the applicant, the respondent no. 03 vide order dated 16.03.2010 informed the applicant that on passing of the final order by the Disciplinary Authority, no change can be made therein, however, he may prefer an appeal against the said order. Accordingly, the applicant preferred an appeal dated 21.04.2010 stating various grounds and case laws and requesting to dismiss the order dated 12.12.2009. Then, the respondent no. 3 issued show cause notice dated 26.04.2011 asking the applicant to submit representation, if any, against the proposal of regularizing the suspension period by granting leave due and admissible, duly reviewing the whole case. In reply, the applicant submitted representation dated 12.05.2011 stating therein the various provisions of rules and case laws lastly requested to pay him the full pay and allowance for the period of suspension as he has been acquitted on merits and not on benefit of doubt. While deciding the representation, the respondents passed the same order as of 12.12.2009 without assigning any reasons vide order dated 11.06.2011 in which under para 8 they categorically admitted that the exoneration of the applicant was ordered by the Hon'ble Court on RITU RAJ SINGH
4|Page merits even then they considered the suspension / deemed suspension period as justified.
7. Learned counsel for the applicant further argued that there is no word like "Honourable Acquittal" or "Dishonourable Acquittal"
in the IPC. The Executive Authorities are not competent to interpret the judicial pronouncements in their own manner as they are not sitting in appellate courts. The acquittal of the applicant is a clear acquittal and was done on merits and not merely on benefit of doubts. Learned counsel further argued that in identical case of Field Gun Factory Kanpur, the Ordnance Factory Board, Kolkata, after taking opinion of the Law Ministry clarified that - " If there is an acquittal, the Disciplinary Authority cannot probe further to find out whether the acquittal was honourable or not so honourable or whether it was on technical grounds or otherwise. Therefore, it is clear that intention is that if there is an acquittal for whatever reasons, it be, it has to be assumed that the suspension order only on the ground of arrest or pendency of criminal trial or appeal should be treated as unjustified for the purpose of FR 54-A." It was further argued that as per provisions made in sub-rule (6) and (7) of Rule 10 of CCS (CCA) Rules, 1965, the suspension / deemed suspension must be reviewed within a period of ninety days and if it is not reviewed, the same shall be treated as invalid. Thus, referring to entire facts and circumstances of the case, prayer was made to allow the OA by way of quashing the impugned order and directing the respondents to grant full pay and allowances to the applicant for the aforesaid suspension period by considering the same as period spent on duty.
8. Learned counsel for the respondents vehemently opposed the submissions of the applicant's counsel and by way of counter affidavit, he argued that the applicant was implicated under major offence involving sections 498A, 323 and 504 of IPC. The matter was pending in the court and was sub judice. However, his case was reviewed by the Competent Disciplinary Authority and finding the exorbitant delay in finalizing the pending criminal case, the suspension was revoked w.e.f. 19.07.1996. Moreover, the applicant RITU RAJ SINGH
5|Page never preferred any request application stating the position of the case etc. for revocation of his suspension. The applicant was issued charge sheet under Rule 16 of CCS (CCA) Rules, 1965 for concealing material facts of his arrest, police custody and conviction. The applicant only informed to the respondents about his acquittal. After considering all the aspects of the case, the Competent Disciplinary Authority came to the conclusion that the exoneration of the applicant is not on merits and thus cannot be treated as honorable acquittal. Hence, vide order dated 12.12.2009, it was ordered by the authority that the period from 28.07.1994 to 16.08.1994 and 16.08.1994 to 19.07.1996 during which the applicant was placed under deemed suspension, he shall be paid full pay and allowances only if he desires to convert the said period of absence into leave of any kind due and admissible to him. When the applicant appealed before the Appellate Authority, the Appellate Authority directed the GM of the respondent factory to reconsider the appeal of the applicant and thus, the applicant was again served a show cause notice dated 26.04.2011 to which the applicant submitted his representation. Again, after careful consideration, the Authority passed the order on 11.06.2011 thereby reaffirming its stand taken earlier vide order dated 12.12.2009. The respondent department did not receive any intimation of the applicant in response to the above proposal due to which the aforesaid period could not be regularized. Since, the aforesaid period was not regularized as spent on duty, hence question of granting him increments / annual increments does not arise.
9. Learned counsel for the respondents further argued that as per the Ordnance Factory Board / MoD letter dated 21.02.1983:
i. Even when one is acquitted after a regular trial in the court of law it is open to the department to consider whether the acquittal is honourable or otherwise. The implications of acquittal from the departmental angle is rather nice.
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6|Page ii. An acquittal which is not honourable can be (a) on technical grounds (b) on benefit of doubt (c) due to non-prosecution of the case due to a policy of the govt. (d) non-prosecution due to non- availability of the evidence (e) due to compounding out of Court.
Learned counsel further argued that item (d) above will be deemed to be a case similar to Honourable acquittal. All other instances as referred to above are not Honourable acquittal. Therefore, since the instant case of the applicant also pertains to not honourable acquittal, no benefit as asked by him can be granted.
To substantiate his case further, learned counsel for the respondents also referred to the judgment passed by the Hon'ble Supreme Court of India in the case of Krishna Kant Raghunat Bibhavnekar Vs State of Maharasthra and others reported in 1997 SCC(L&S) 347 and argued that in the aforesaid case, the Apex Court even after the acquittal of the petitioner, did not allow him increments, not treated him to be on duty from the date of suspension till the date of acquittal for the purpose of computation of pensionary benefits nor entitled for any consequential benefits.
10. Rejoinder has been filed by the applicant's counsel reiterating the averments as given in the OA. To substantiate his claim further, learned counsel for the applicant has also placed reliance upon the following case laws:
i. Judgment dated 24.08.1967 passed by the Hon'ble Supreme Court of India in the case of M Gopala Krishna Naidu Vs State of Madhya Pradesh reported in 1968 AIR 240.
ii. Judgment dated 18.09.1972 passed by the Hon'ble Supreme Court of India in the case of B D Gupta Vs State of Haryana reported in 1972 AIR 2472.
iii. Judgment dated 11.11.2014 passed by the Hon'ble Supreme Court of India in Civil Appeal No. 2325 of 2009 titled Joginder Singh Vs Union Territory of Chandigarh & Ors RITU RAJ SINGH
7|Page iv. Judgment dated 04.12.2023 passed by the Hon'ble Supreme Court of India in Civil Appeal No. 7935 of 2023 titled Ram Lal Vs State of Rajasthan & Ors.
v. Judgment dated 29.11.1983 passed by the Hon'ble Supreme Court of India in the case of Bharma Chandra Gupta Vs Union of India reported in AIR 1984 SC 380.
vi. Judgment dated 31.01.2020 passed by the Allahabad Bench of Central Administrative Tribunal in OA No. 1103 of 2013 titled Vijay Kumar Vs Union of India and others.
vii. Judgment dated 29.07.2005 passed by the Allahabad Bench of Central Administrative Tribunal in OA No. 817 of 2005 titled T P Singh Vs Union of India and others.
viii. Judgment dated 24.04.2024 passed by the Allahabad Bench of Central Administrative Tribunal in OA No. 68 of 2022 titled Mukesh Kumar Vs Union of India and others.
ix. Judgment dated 04.02.2011 passed by the Allahabad Bench of Central Administrative Tribunal in OA No. 1509 of 2005 titled Sanjay Kumar Rastogi Vs Union of India and others.
11. We have considered the rival submissions and gone through the entire records.
12. As the brief facts of the case have already been narrated above, the same are not reiterated for the sake of brevity. Admittedly, a case was registered against the applicant u/s 323, 506 and 498-A of IPC due to which he was taken into police custody. Upon his detention w.e.f. 28.07.1994 to 16.08.1994, the respondent no. 03 placed him under deemed suspension / suspension we.f. 28.07.1994 to 16.08.1994 and further from 16.08.1994 to 19.07.1996. The contention of the applicant is that during the aforementioned period, the respondents did not review the suspension of the applicant in accordance with the relevant provisions which states for the time period in which the suspension is liable to be reviewed. It has also been contended that no charge sheet was ever issued to the applicant on the matter of criminal proceedings and no disciplinary RITU RAJ SINGH
8|Page proceedings were ever initiated and therefore, the said suspension had no substance. It is also established that the increment(s) that were liable to be given to the applicant during the aforesaid period were kept withheld. Furthermore, the respondents revoked the suspension of the applicant vide order dated 19.07.1996 citing exorbitant delay in criminal proceedings that were going on in the case.
13. It is also an admitted fact that the applicant was granted acquittal from the charges under section 323 and 506 IPC on 12.09.2008 but under section 498-A he was convicted by Trial Court. Later, vide order dated 11.06.2009, the applicant was granted acquittal also from the charges leveled under Section 498-A of IPC by the Sessions Court in Appeal. Subsequently, the respondents passed the order dated 12.12.2009 (the impugned order) proposing therein to regularize the period of deemed suspension / suspension from 28.07.1994 to 19.07.1996 by grant of leave due and admissible to the applicant. Applicant represented against the aforesaid order contending that since he has been completely acquitted of all the charges, the period for which he remained under suspension / deemed suspension is liable to be counted as period spent in service and entire regular pay and allowances is admissible to him for which no leave whatsoever is liable to be deducted. Respondents, on the other hand, have contended that the acquittal of the applicant was not an honourable acquittal and thus the executive authorities have taken the decision to not consider the period for which the applicant remained under suspension as period spent in service.
14. At the outset, it is pertinent to discuss the case laws as has been relied upon by the learned counsel for the applicant in support of his case:
i. By way of the judgment passed by the Apex Court in the case of M Gopala Krishna Naidu (supra) and also in the case of B D Gupta (supra), learned counsel has stressed upon the fact that once an employee has been fully exonerated from all the criminal charges, the suspension which was inflicted upon him earlier is liable to be struck down and all the consequential benefits are liable to be granted.
Further, the principles of natural justice like giving adequate RITU RAJ SINGH
9|Page opportunity of hearing and issuing show cause must be followed and also, the scope and efficacy of FR 54 was well defined in the aforesaid ratio. For the sake of clarity, the relied upon portion of the judgment passed in the case of M Gopala Naidu (supra) is quoted herein below:
"We find that the High Court of Maharashtra has also taken in VR Gokhale v State of Maharashtra the same view which we are inclined to take of the nature of function under R. 152 of the Bombay Civil Service Rules, 1959, a rule in ters identical to those of FR 54 before us.
In our view, FR 54 contemplates a duty to act in accordance with the basic concept of justice and fairplay. The authority therefore had to afford a reasonable opportunity to the appellant to show cause why cl. 3 and 5 should not be applied and that having not been done the order must be held to be invalid."
Similarly, the relied upon portion of the judgment passed in the case of B D Gupta (supra) is quoted herein below:
"This court held that cl. (b) of the Fundamental Rule 54 would be applicable in all cases where the officer concerned is not honourably acquitted. Since in the instant case the Government servant had clearly not been fully exonerated of the charges levied against him, it was open to Government to decide what period of absence from duty during the period of suspension should be treated as period spent on duty and, also, what proportion of pay and allowances should be given to him. This decision cannot apply to the instant case for the simple reason that Government, by withdrawing the proceedings initiated against the appellant in (1) Civil Appeals Nos. 1561 and 1562 of 1965 decided by the Supreme Court on 6 October 1967. respect of Charge 1(b), made it impossible for the appellant to get himself fully exonerated. Since the appellant had been exonerated of Charge 1(a) and since Charge 1(b) was withdrawn, it is impossible for Government to proceed on the basis as if the appellant has not been fully exonerated or to assume that the order of suspension was one which was not wholly unjustified. In that view of the matter, we do not think that case of the State of Assam and Anr. v. Raghava Rajagopalachari (supra) can be of any assistance to the respondents.
ii. Similarly, learned counsel has relied upon the judgment passed by the Apex Court in the case of Brahma Chandra Gupta (supra) stressing upon the fact that once the employee has been granted complete acquittal in the criminal proceedings and subsequently been reinstated, his entire pay and allowances for the period for which he remained under suspension, is liable to be paid to him. For the sake of clarity, the relied upon portion is quoted herein below:
RITU RAJ SINGH 10 | P a g e "6. Mr. R.K. Garg, learned Counsel for the appellant wanted us to examine the scope and ambit of Article 193 and Mr. Gujaral learned Counsel for the Union of India was equally keen on the other side to do the same thing. We steer clear of both. The appellant was a permanent UDC who has already retired on superannuation and must receive a measure of socio-economic justice. Keeping in view the facts of the case that the appellant was never hauled up for departmental enquiry; that he was prosecuted and has been ultimately acquitted, and on being acquitted he was reinstated and was paid full salary for the period commencing from his acquittal, and further that even for the period in question the concerned authority has not held that the suspension was wholly justified because 3/4th of the salary is ordered to be paid, we are of the opinion that the approach of the trial court was correct and unassailable. The learned trial Judge on appreciation of facts found that this is a case in which full amount of salary should have been paid to the appellant on his reinstatement for the entire period. We accept that as the correct approach. We accordingly allow this appeal, set aside the judgment of first appellate court as well of the High Court and restore the one of trial Court with this modification that the amount decreed shall be paid with 9% interest p.a. from the date of suit till realisation with costs throughout."
iii. Similarly, applicant's counsel has placed reliance upon the judgment passed by the Apex Court in the case of Joginder Singh (supra) submitting that the Hon'ble Court has adequately discussed the definition of honourable acquittal and by that virtue, the instant case of the applicant is liable to be considered as honourable acquittal and therefore the benefits as asked for are liable to be granted. For the sake of clarity, the relied upon portion of the aforesaid judgment is quoted herein below:
"15. To answer the point no. 1, we must first consider whether the acquittal of the appellant from the criminal case was an honourable acquittal. It is the contention of the respondent that even though the appellant was acquitted in the criminal case, the appointment of the appellant by the appointing authority to the post of Constable in Chandigarh Police, which is a disciplined force was not desirable. The High Court has held that what would be relevant is the conduct and character of the candidate to be appointed in the service of state police and not the actual result thereof in the criminal case as claimed by the appellant. Further, the relevant consideration to the case is the antecedents of the candidate for appointing him to the post of Constable.
16. However, adverting to the criminal proceeding initiated against the appellant, we would first like to point out that the complainant did not support the case of the prosecution as he failed to identify the assailants and further admitted that the contents of the Section 161 of Cr.P.C. statement were not disclosed to him and his signatures were obtained on a blank sheet of paper by the Investigation Officer. Further, Sajjan Singh, who was an eye-witness of the case, who was also injured, had failed to RITU RAJ SINGH 11 | P a g e identify the assailants. Both the witnesses were declared hostile on the request of the prosecution. The learned Additional Sessions Judge, Bhiwani held that the prosecution case has not been able to prove in any way the allegations against the appellant. Thus, the learned Judge held that the prosecution had miserably failed to prove the charges leveled against the appellant in the criminal proceedings. Therefore, we are in agreement with the findings and judgment of the learned Additional Sessions Judge and are of the opinion that the acquittal of the accused from the criminal case was an honourable acquittal. Learned counsel has rightly placed reliance upon the decision of this Court in Deputy Inspector General of Police & Anr. v. S. Samuthiram2, which relevant para is extracted as under :-
"24. The meaning of the expression "honourable acquittal" came up for consideration before this Court in RBI v. Bhopal Singh Panchal. In that case, this Court has considered the impact of Regulation 46(4) dealing with honourable acquittal by a criminal court on the disciplinary proceedings. In that context, this Court held that the mere acquittal does not entitle an employee to reinstatement in service, the acquittal, it was held, has to be honourable. The expressions "honourable acquittal", "acquitted of blame", "fully exonerated" are (2013) 1 SCC 598 unknown to the Code of Criminal Procedure or the Penal Code, which are coined by judicial pronouncements. It is difficult to define precisely what is meant by the expression "honourably acquitted". When the accused is acquitted after full consideration of prosecution evidence and that the prosecution had miserably failed to prove the charges levelled against the accused, it can possibly be said that the accused was honourably acquitted." (Emphasis supplied)
20....... Thus, as rightly pointed out by the Trial Court that as the prosecution has failed to prove the charges against the appellant by adducing cogent evidence, therefore, the Police authorities cannot be allowed to sit in judgment over the findings recorded by the Sessions Court in its judgment, wherein the appellant has been honourably acquitted. Denying him the appointment to the post of a Constable is like a vicarious punishment, which is not permissible in law, therefore, the impugned judgment and order passed by the High Court is vitiated in law and liable to be set aside."
iv. Similarly, learned counsel has relied upon the judgment passed by the Apex Court in the case of Ram lal (supra) stressing that the court in judicial review is obliged to examine the substance of the judgment and not go by the form of expression used. For the sake of clarity, the relied upon portion is quoted herein below:
"25. Expressions like "benefit of doubt" and "honorably acquitted", used in judgments are not to be understood as magic incantations. A court of law will not be carried away by the mere use of such terminology. In the present case, the Appellate Judge has recorded that Exh. P-3, the original marksheet carries the date of birth as 21.04.1972 and the same has also been proved by the witnesses examined on behalf of the prosecution. The conclusion that the acquittal in the criminal proceeding was after full consideration of the prosecution evidence and that the prosecution miserably failed to prove the charge can only be arrived at after a reading of the judgment in its entirety. The court in RITU RAJ SINGH
12 | P a g e judicial review is obliged to examine the substance of the judgment and not go by the form of expression used.
26. We are satisfied that the findings of the appellate judge in the criminal case clearly indicate that the charge against the appellant was not just, "not proved" - in fact the charge even stood "disproved" by the very prosecution evidence. As held by this Court, a fact is said to be "disproved" when, after considering the matters before it, the court either believes that it does not exist or considers its non-existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it does not exist. A fact is said to be "not proved" when it is neither "proved" nor "disproved".
v. Similarly, learned counsel has also placed reliance upon the judgment passed by the Central Administrative Tribunal in the case of Sanjay Kumar Rastogi (supra) submitting that the Court therein had discussed the scope and definition of FR 54 and also "honourable acquittal" and argued that the instant case of the applicant is liable to be allowed on the same terms. For the sake of clarity, the relied upon portion is quoted herein below:
"12. Rule 54 provides for full pay in case of honourable acquittal. This means that the government servant has been fully exonerated. When the trial was set aside on account of defect but retrial was not ordered on account of pendency of the case for 14 years and other circumstances of the case, then this does not amount to honourable acquittal and clause
(b) of Rule 54 is applicable. If in such circumstances, the Government allowed part of the pay and allowances then the order is valid. State of Assam vs Raghava Rajgopalachari (1972) 7 SLR 44.
13. An acquittal is not said to be 'honourable acquittal' if the acquittal is on the basis of benefit of doubt. When the charges have been held not proved beyond reasonable doubt, the character acquittal cannot be held to be one of benefit of doubt as it is certainly an honourable acquittal.
See G.M. Tank v. State of Gujarat,(2006) 5 SCC 446, wherein the Apex Court has held:
7. The Special Judge had honorably acquitted the appellant of the offence punishable under Section 5(1)(e) read with Section 5(2) of the Act by holding that the prosecution has failed to prove the charges levelled against the appellant and thus the appellant cannot be held to be guilty of the said offence.
14. In Krishnakali Tea Estate vs Akhil Bharatiya chan Mazdoor Sangh (2004) 8 SCC 200, the Apex Court has held as under:-
We have been taken through the said judgment of the criminal court and we must record that there was such honourable acquittal by the criminal court. The acquittal by the criminal court was based on the fact that the prosecution did not produce sufficient material to establish its charge ..... RITU RAJ SINGH 13 | P a g e
20. From the above decisions and the facts of the case it could be safely held that the respondents have misunderstood the legal position that there must be a positive finding by the Criminal court about the innocence of the applicant in which event only the suspension could be treated as totally unjustified. In the instant case, the applicant was released on bail in February, 1996 itself. As such from that day he was available for performing the duties, if so permitted by the respondents.
Had been under custody for the full period of six years of suspension, there could be a justification to hold that the applicant was not available to perform duties.
21. We do not for a moment doubt the absolute discretion left with the competent authority. That discretion, should, in our opinion be rational and judicious. When the discretion is found to be not fulfilling with the requirement judiciousness, judicial interference is well justified. We take support in this regard of the dictum of the Apex court in the case of Clariant International Ltd. v. Securities & Exchange Board of India,(2004) 8 SCC 524, wherein it has been held as under:-
26. The Board, further, having a discretionary jurisdiction must exercise the same strictly in accordance with law and judiciously. Such discretion must be a sound exercise in law. The discretionary jurisdiction, it is well known, although may be of wide amplitude as the expression as it deems fithas been used but in view of the fact that civil consequences would ensue by reason thereof, the same must be exercised fairly and bona fide.
The discretion so exercised is subject to appeal as also judicial review, and, thus, must also answer the test of reasonableness.
27. In Kruger v. Commonwealth of Australia is stated:
Moreover, when a discretionary power is statutorily conferred on a repository, the power must be exercised reasonably, for the legislature is taken to intend that the discretion be so exercised. Reasonableness can be determined only by reference to the community standards at the time of the exercise of the discretion and that must be taken to be the legislative intention....
28. The discretionary jurisdiction has to be exercised keeping in view the purpose for which it is conferred, the object sought to be achieved and the reasons for granting such wide discretion. (See Narendra Singh v. Chhotey Singh
29. A discretionary jurisdiction, furthermore, must be exercised within the four corners of the statute. [See Akshaibar Lal (Dr.) v. Vice- Chancellor, Banaras Hindu University and also para 9-022 of de Smith, Woolf and Jowell: Judicial Review of Administrative Action, 5th Edn., p.
445.
22. In view of the above, the decision of the respondents cannot be held to be legally valid and justified. The order dated 14-12-2004 and 22-06- 2005 passed by respondents No. 2 and 3 are hereby quashed and set aside. It is declared that the applicant is entitled to have the period of suspension treated as of duty for all purposes, such as full pay and allowances, drawal of increments and as qualifying services."
RITU RAJ SINGH 14 | P a g e vi. Similarly, stressing that once an employee's suspension is overturned, he is entitled for back wages and other consequential benefits, learned counsel has relied upon the judgment passed by the Central Administrative Tribunal in the case of Vijay Kumar (supra) the relied upon portion of which is quoted herein below:
"28. Once the disqualification due to which applicant was suspended is wiped out due acquittal in a criminal case, he is entitled for back wages and other consequential benefits especially in the light of the facts available in this case. The judgment of criminal court indicate that matrimonial disputes was in fact between one Chandra Shekhar and his wife and apparently applicant Vijay Kumar is somehow related to family of Chandra Shekhar.
31. Hon'ble Apex Court in Union of India vs. K.V. Janki Raman (1991)4 SCC 109 has recognized the fact that on many occasions frivolous proceedings are instituted at the instance of interested person and an employee is made to suffer both mental agony and privations. In such circumstances, if employee comes out with a clean bill he has to be restored to all benefits from which he has kept away unjustly. In such case normal rule of "no work no pay" is not applicable, inasmuch as, the employee willing to work is kept away from work by authority for no fault of his."
vii. Learned counsel has also relied upon the judgment passed by the Central Administrative Tribunal in the case of Mukesh Kumar (supra) submitting that in the said judgment, it was held that if a delinquent is suspended for his detention in jail without there being any inquiry in contemplation, and if the suspension is revoked immediately upon his acquittal or even before that and the said delinquent eventually secures acquittal in the criminal case, the period that was early counted as suspension shall be regularized along with consequential benefits. For the sake of clarity, the relied upon portion is quoted herein below:
"11. Further, the case of the applicant herein is very much similar to the controversy dealt by the Hon'ble High Court of Allahabad in its judgment dated 13.03.2024 passed in the case of Anil Kumar Singh (supra). In the said case also, the petitioner therein was simply placed under suspension on account of his detention in jail. Upon his reinstatement with the revocation of suspension order, petitioner became entitled to salary for the period he remained under suspension. Just like the applicant herein, the petitioner in the said case was also acquitted in the criminal case. For the sake of clarity, the operative portion of the said judgment is quoted herein below:
RITU RAJ SINGH
15 | P a g e "15. I find petitioner's case to be on a much better footing as he was only suspended for detention in jail without there being any inquiry in contemplation and his suspension was revoked immediately upon his acquittal in the criminal case and no appeal was preferred against the judgment of acquittal.
16. In view of the above, therefore, the Court is of the considered view that respondents are not justified in denying salary to the petitioner applying the principle of 'no work no pay'.
17. Accordingly, writ petition succeeds and is allowed. The order passed by the Joint Director of Education, Prayagraj Region, Prayagraj dated 1st May, 2018 and also the order passed by the Additional Director of Education (Basic) dated 28th January, 2020 are hereby quashed.
18. Respondents are directed to make payment of arrears of salary to the petitioner for the period petitioner has remained under suspension i.e. from 19th August, 2009 to 6th February, 2016 within a period of 30 days from the date of production of certified copy of this order."
12. Thus, in view of the above, the case of the applicant's case finds merit especially in view of Rule 54 (b) of Fundamental Rules as well as exclusively in terms of the ratio laid down by the Hon'ble High Court of Allahabad in the case of Anil Kumar Singh (supra). The applicant was reinstated on 16.03.2000 subsequent to the revocation of his suspension. Also, vide judgment dated 20.06.2013, the applicant was acquitted. Thus, on that very juncture itself, the respondents ought to have considered the period 17.05.1999 to 16.03.2000 to be in service by the applicant and regularized the same accordingly."
15. On the contrary, learned counsel for the respondents has contended that the instant case of the applicant is barred by the dictum of honourable acquittal and therefore all the benefits as desired by the applicant cannot be granted to him. In this regard, learned counsel has placed reliance upon the judgment passed by the Apex Court in the case of Krishna Kant Raghunat Bibhavnekar (supra) submitting that in the said case, the Hon'ble Supreme Court did not grant the employee all the consequential benefits even after acquitting him. For the sake of clarity, the relied upon portion is quoted herein below:
"Though legal evidence may be insufficient to bring home the guilt beyond doubt or fool proof. The act of reinstatement sends ripples among the people in the office/locality and sows wrong signals for degeneration of morality, integrity and rightful conduct and efficient performance of public duty. The constitutional animation of public faith and credit given to public acts, would be undermined. Every act or the conduct of a public servant should be to effectuate the public purpose and constitutional objective. Public servant renders himself accountable to the public. The very cause for suspension of the petitioner and taking punitive action RITU RAJ SINGH
16 | P a g e against him was his conduct that led to the prosecution of him for the offences under the Indian Penal Code. If the conduct alleged is the foundation for prosecution, though it may end in acquittal on appreciation or lack of sufficient evidence, the question emerges: whether the Government servant prosecuted for commission of defalcation of public funds and fabrication of the records, though culminated into acquittal, is entitled to be reinstated with consequential benefits? In our considered view, this grant of consequential benefits with all back wages etc. cannot be as a matter of course. We think that it would deleterious to the maintenance of the discipline if a person suspended on valid considerations is given full back wages as a matter of course, on his acuittal, Two courses are open to the disciplinary authority, viz., it may enquire into misconduct unless, the self-same conduct was subject of charge and on trial the acquittal was recorded on a positive finding that the accused did not commit the offence at all; but acquittal is not on benefit of doubt given. Appropriate action may be taken thereon. Even otherwise, the authority may, on reinstatement after following the principle of natural justice, pass appropriate order including treating suspension period as period of not on duty , ( and on payment of subsistence allowance etc.) Rules 72(3), 72 (5) and 72 (7) of the Rules give a discretion to the disciplinary authority. Rule 72 also applies, as the action was taken after the acquittal by which date rule was in force. Therefore, when the suspension period was treated to be a suspension pending the trial and even after acquittal , he was reinstated into service he would not be entitled to the consequential, he was reinstated into service, he would not be entitled to the consequential benefits, As a consequence, he would not be entitled to the benefits of nine increments as stated in para 6 of the additional affidavit. He is also not entitled to be treated as on duty from the date of suspension till the date of the acquittal for purpose of computation of pensionary benefits etc. The appellant is also not entitled to any other consequential benefits as enumerated in paragraphs 5 and 6 of the additional affidavit."
16. At the outset, it is pertinent to record that the applicability of a judgment and ascertaining as to whether a person has been honourably acquitted or otherwise through that judgment, needs to be determined very shrewdly and only after meticulous consideration of the entire facts and circumstances of the case. As far as the instant case of the applicant is concerned, the respondents have denied the request of the applicant to grant regular pay and allowances for the period in which he remained under deemed suspension / suspension only to be acquitted later in the criminal case for which he was put on suspension. Respondents' denial is on the ground that the acquittal was based on "benefit of doubts" and therefore it was not an honourable acquittal. And thus, the respondents had given the applicant a proposal to regularize the period of deemed suspension / RITU RAJ SINGH 17 | P a g e suspension from 28.07.1994 to 19.07.1996 by grant of leave due and admissible to him to which the applicant has not agreed to.
It is also an admitted fact that the applicant has been granted acquittal in all the charges for which a case was lodged against him. Thereafter, when the applicant approached before the respondents' department to regularize his period of service for which he remained under suspension, the competent Disciplinary Authority of the respondents passed the order dated 12.12.2009 proposing therein to regularize the period of deemed suspension / suspension by grant of leave due and admissible to him. It is pertinent to record that a plain perusal of the judgment dated 11.06.2009 passed by the Sessions Court of ADJ XIII Kanpur wherein the applicant was acquitted from the charges of 498 A of IPC reveals that it was a detailed judgment wherein entire facts and circumstances of the case were examined and only thereafter the Court absolved the applicant of all the charges. In the event of a clear and complete acquittal of the applicant, it was incumbent upon the respondents' authorities to have accepted the plea of the applicant for regularization of his services in which he remained under suspension / deemed suspension as period spent on duty and thereafter the entire pay and allowances were liable to be granted. However, the respondents did not do so citing that the acquittal of the applicant was not honourable as it was made on the ground of benefit of doubt. Respondents appear to be highly mistaken on this viewpoint. An acquittal is an acquittal anyway irrespective of the fact that it was given on the basis of "benefit of doubt" or otherwise. Especially when no negative or adverse observation was made by the Sessions Court in its judgment dated 11.06.2009 by way of which the applicant was fully acquitted, in no stretch of imagination, could the respondents have attributed the acquittal of the applicant as not honourable. The respondents cannot act as an arbitrator in their own idiosyncratic way and definitely cannot quote or unquote a decision of a designated arbitrator (Court) in accordance with their own whims and fancies. A decision rendered RITU RAJ SINGH 18 | P a g e by a Court or Tribunal is liable to be followed and acted upon exclusively in the manner in which it is required to be.
17. Further, the scope of Fundamental Rule 54 is also liable to be discussed and ascertained here. FR 54 contemplates a duty to act in accordance with the basic concept of justice and fairplay. As per its definition, FR 54 would be applicable in all cases where the officer concerned is not honourably acquitted. Since in the instant case the government servant had clearly been fully exonerated of all the charges by a competent court of law, it was incumbent upon the respondents to have considered his plea of regularizing the period for which he remained under suspension / deemed suspension. When the accused is acquitted after full consideration of prosecution evidence and that the prosecution had miserably failed to prove the charges leveled against the accused, it can possibly be said that the accused was honourably acquitted. In this regard, the ratio laid down by the Apex Court in the case of Joginder Singh (supra) and also in the case of Ram Lal (supra) the relevant portion of which has already been quoted previously finds a direct reference to the instant case of the applicant and fully supports the same.
18. Furthermore, the instant case of the applicant also finds a direct support from the ratio laid down by the Central Administrative Tribunal in its judgment passed in the case of Vijay Kumar (supra) and in the case of Mukesh Kumar (supra) the relevant relied upon portion of which has already been quoted and discussed previously. In the case of Mukesh Kumar (supra) also, the petitioner was simply placed under suspension on account of his detention in jail. Upon his reinstatement with the revocation of suspension order, petitioner became entitled for the salary for the period he remained under suspension. Here, in the instant case of the applicant, the employee was adjudged exonerated from all the charges due to which he was placed under suspension / deemed suspension upon his custody. The dictum of "not honourable acquittal" does not attract in the instant case of the applicant as he was fully acquitted by way of a detailed RITU RAJ SINGH 19 | P a g e judgment passed by a competent court of law without any adverse remarks. If there is an acquittal, the Disciplinary Authority cannot probe further that too, in accordance with its own capriciousness to find out whether the acquittal was honourable or not honourable or whether it was on technical grounds or otherwise. Further, no straightjacket formula can be applied to ascertain as to whether an acquittal is honourable or not and it explicitly depends upon the fact of each case that needs to be assessed independently and in the instant case of the applicant, no cogent reasonability has been assigned or inferred to establish that the acquittal of the applicant was not honourable.
19. Further, as regards to the case law of Krishna Kant Raghunat Bibhavnekar (supra) which has been relied upon by the learned counsel for the respondents, the same does not have any bearing to the instant case of the applicant. In the said case, the Apex Court had observed that "If the conduct alleged is the foundation for prosecution, though it may end in acquittal on appreciation or lack of sufficient evidence, the question emerges: whether the Government servant prosecuted for commission of defalcation of public funds and fabrication of the records, though culminated into acquittal, is entitled to be reinstated with consequential benefits?" and thereafter it went on to answer its own question as follows: In our considered view, this grant of consequential benefits with all back wages etc. cannot be as a matter of course. We think that it would deleterious to the maintenance of the discipline if a person suspended on valid considerations is given full back wages as a matter of course, on his acuittal, Two courses are open to the disciplinary authority, viz., it may enquire into misconduct unless, the self-same conduct was subject of charge and on trial the acquittal was recorded on a positive finding that the accused did not commit the offence at all; but acquittal is not on benefit of doubt given. Appropriate action may be taken thereon. Even otherwise, the authority may, on reinstatement after following the principle of natural justice, pass appropriate order including treating suspension period as period of not on duty , (and on payment of subsistence allowance etc.) The case under the observation of the Apex Court pertained to misappropriation of money and embezzlement of public fund however, in the instant case of the applicant, the dispute arose because of family / matrimonial / dowry dispute because of which RITU RAJ SINGH 20 | P a g e charges under several sections of IPC were imposed against him. The case did not at all pertained to misuse or misappropriation of public money and hence, in the event of complete acquittal of the applicant from all the criminal charges, no question of "unbecoming of a government servant" or "moral insanity" arise. Thus, arguments raised by the respondents' counsel in that regard are not acceptable.
20. Further, it has already been established that review of the suspension dated 16.08.1994 was never done by the competent authority of the respondents' department. The competent authority, exercising powers conferred by the Clause (C) of Sub- Rule 5 of Rule 10 of CCS (CCA) Rules, 1965 revoked the suspension of the applicant vide order dated 19.07.1996. Here, it is pertinent to quote Rule 10(6) and Rule 10(7) of the CCS (CCA) Rules, 1965 which is as follows:
"(6) An order of suspension made or deemed to have been made under this rule shall be reviewed by the authority which is competent to modify or revoke the suspension, before expiry of ninety days from the effective date of suspension, on the recommendation of the Review Committee constituted for the purpose and pass orders either extending or revoking the suspension. Subsequent reviews shall be made before expiry of the extended period of suspension. Extension of suspension shall not be for a period exceeding one hundred and eighty days at a time.
(7) An order of suspension made or deemed to have been made under sub-rule (1) or (2) of this rule shall not be valid after a period of ninety days unless it is extended after review, for a further period before the expiry of ninety days.
Provided that no such review of suspension shall be necessary in the case of deemed suspension under sub-rule (2), if the Government servant continues to be under suspension at the time of completion of ninety days of suspension and the ninety days period in such case will count from the date the Government servant detained in custody is released from detention or the date on which the fact of his release from detention is intimated to his appointing authority, whichever is later."
Thus, the aforesaid rule prescribes that it was incumbent upon the competent authority of the department to have reviewed the suspension of the applicant but the same was not done. Furthermore, RITU RAJ SINGH 21 | P a g e in the instant case of the applicant, the provisions prescribed in OM No. - 11012/15/85 - Est (A) dated 03.12.1985 issued by the DoPT, Government of India also casts a direct bearing as the said OM vividly rules that "where departmental proceedings against a suspended employee for the imposition of major penalty finally end with the imposition of minor penalty, the suspension can be said to be wholly unjustified in terms of FR (54-B) and the employee concerned should, therefore, be paid full pay and allowances for the period of suspension by passing a suitable order under FR 54-B." Thus, the instant case of the applicant finds support from the aforesaid OM and he is liable to be paid full pay and allowances for the period he remained under deemed suspension / suspension.
21. Furthermore, the provisions prescribed in M.O.F. No. F.15(8)- E IV/57, dated 28th March, 1959 that deals with the subject matter also support the case of the applicant. Clause b and Clause d of the aforesaid OM rules as follows:
"(b) A Government servant against whom a proceeding has been taken on a criminal charge but who is not actually detained in custody (e.g., a person released on bail) may be placed under suspension by an order of the competent authority under clause
(b) of Rule 10 (1) of the Central Civil Services (Classification, Control and Appeal) Rules, 1965. If the charge is connected with the official position of the Government servant or involving any moral turpitude on his part, suspension shall be ordered under this rule unless there are exceptional reasons for not adopting this course.
(d) When a Government servant who is deemed to be under suspension in the circumstances mentioned in clause (a) or who is suspended in circumstances mentioned in clause (b) is re-instated without taking disciplinary proceedings against him, his pay and allowances for the period of suspension will be regulated under FR 54 i.e., in event of his being acquitted of blame or if the proceedings taken against him was for his arrest for debt or it being proved that his liability arose from circumstances beyond his control or the detention being held by any competent authority to be wholly unjustified, the case may be dealt with under FR 54 (2), otherwise it may be dealt with under FR 54 (3)."
22. Thus, in view of the aforesaid considerations, we are of the considered opinion that the respondents' authorities were not justified in attributing the acquittal of the applicant as not honourable and RITU RAJ SINGH 22 | P a g e therefore, denial for regularizing the services of the applicant for the period he remained under suspension was uncalled for and inappropriate. The instant original application is liable to be allowed and is accordingly, allowed. The impugned order dated 12.12.2009 and 26.04.2011 are hereby quashed and set aside. Respondents' authorities are hereby directed to count the period 28.07.1994 to 19.07.1996 for which the applicant remained under suspension / deemed suspension as period spent on duty for all intents and purposes including granting of increments and promotions accrued during this period and also other consequential benefits like refixing his pay / pension. This exercise must be completed within a period of three months from the date of receipt of certified copy of this order.
23. All associated MAs stand disposed of. No costs.
(Mohan Pyare) (Justice Om Prakash VII)
Member (Administrative) Member (Judicial)
(Ritu Raj)
RITU RAJ
SINGH
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