Central Administrative Tribunal - Ernakulam
C Balan vs Post Kerala Circle on 18 August, 2022
1
CENTRAL ADMINISTRATIVE TRIBUNAL,
ERNAKULAM BENCH
Original Application No. 180/00604/2021
Thursday, this the 18th day of August, 2022
CORAM:
Hon'ble Mr. K. V. Eapen, Administrative Member
C. Balan, aged 69 years,
S/o. Late Kannan, Retired Postman,
Kalliasseri Post, Kannur Postal Division,
Kannur District,
Residing at "Chandroth House". Midavilode P.O.
Iriveri, via Mowancherry,
Kannur - 670 613. ... Applicant
(By Advocates - Mr. T. C. Govindaswamy &
Ms. Kala T. Gopi)
Vs.
1. Union of India represented by the
Secretary to the Government of India & Director General of
Posts, Ministry of Communications (Department of Posts),
Sansad Marg, New Delhi - 110 001.
2. The Chief Post Master General,
Kerala Circle, Thiruvananthapuram - 695 033.
3. The Senior Superintendent of Post Offices,
Kannur Postal Division, Kannur. ... Respondents
(By Advocate - Mrs. O. M. Shalina, SCGSC)
This application having been heard on 08.08.2022, the Tribunal on
18.08.2022 delivered the following:
ORDER
Per Hon'ble Mr. K. V. Eapen, Administrative Member -
The applicant who is a retired Postman from the Kannur Postal Division is aggrieved by the non-release of his retirement gratuity and regular pension along with commutation etc., notwithstanding the fact that 2 the judicial proceedings which were pending against him before the Court of Special Judge (SPE-CBI)-II, Ernakulam ended in his acquittal by judgment dated 21.12.2014. He has prayed for the following relief in the OA:
i) Declare that the respondents are bound to regularize the applicant's period of suspension from 27.04.2007 as duty and direct further to grant all the consequential benefits including arrears of pay and allowances, the benefits of financial Upgradation under the MACP Scheme and revision of pension, etc, and direct the respondents accordingly;
ii) Direct the respondents to release all the monetary benefits arising out of the declaration and direction in para (i) above with interest @ 12% per annum to be calculated with effect from 1.6.2012 upto the date of full and final settlement of the same;
iii) Declare that non-feasance on the part of the respondents to release the applicant's retirement gratuity is arbitrary, discriminatory and ultravires statutory rules and direct the respondents to release the retirement gratuity with interest @ 12% per annum with effect from 1.6.2012 till the same is paid to the applicant;
iv) Direct the respondents to forthwith grant regular pension including arrears of pension and fixed medical allowances as if no judicial proceedings were pending against the applicant as on the date of his superannuation;
v) Award costs of and incidental to this application;
vi) Pass such other orders or directions as deemed just fit and necessary in the facts and circumstances of the case;
2. The applicant was placed under deemed suspension on 27.4.2007 while working as a Postman in Kannur Postal Division after his arrest and remand in judicial custody. The suspension was later revoked and he superannuated from service on 31.5.2012. A calendar case No. 11/2007 was filed in the Court of Special Judge (SPE-CBI)-II, Ernakulam against him for offences punishable under Section 120B, IPC read with Sections 7, 13(1)(d) and 13(2) of the Prevention of Corruption Act. The applicant was a co-accused in the case along with one T. Karunakaran, who has also since retired, and was then the Assistant Superintendent of Post Offices in the Kannur Postal Division. It is while the judicial proceedings was pending that the applicant 3 superannuated on 31.5.2012. At that time, except for provisional pension, no other benefits were given to him.
3. It is submitted that the judicial proceedings which were initiated against the applicant as 2nd accused and T. Karunakaran as the 1st accused ended in acquittal by the judgment of the Court of Special Judge (SPE-CBI)- II, Ernakulam, a copy of which is produced as Annexure A1. In the judgment the Special Judge (SPE-CBI)-II, Ernakulam had noted that it was considerably difficult to draw a presumption against the accused under Section 20 of the Prevention of Corruption Act. It was also held by him that the prosecution could not prove beyond reasonable doubt the guilt of the accused and that the accused were entitled to the benefit of said doubt. It was further held that they cannot be fastened with criminal liability of indulging in criminal conspiracy, receiving gratification other than legal remuneration by abusing their position as public servant to obtain undue advantage of themselves and thereby that they indulged in an act of criminal misconduct.
4. It is further submitted by the applicant that no disciplinary proceedings were pending against him by the Department. In spite of this, the respondents did not release the retirement benefits, as contemplated under the CCS (Pension) Rules, 1972, on the ground that a Criminal Appeal was filed before the Hon'ble High Court of Kerala in the matter. It is submitted that no stay has been granted in the said Criminal Appeal No. 1241/2015. As per a copy of the Criminal Appeal Case Status produced as Annexure R1(A) 4 in the reply statement filed by the respondents, the status has been shown as 'pending for admission' ever since the filing date of the same, i.e. 19.11.2015. It had only come up before the Hon'ble High Court on two dates back in 2015 and 2016, for the purpose of admission hearing but there were no orders or directions.
5. The applicant submits that the question whether an appeal against acquittal would constitute continuation of judicial proceedings for the purpose of CCS (Pension) Rules, 1972 was raised by the 1st accused, T. Karunakaran in another OA No. 246/2017 before this Tribunal. This Tribunal in its order dated 18.11.2017 in OA No. 246/2017 held as under:
"9. The facts of the case do not bear repetition. Suffice it to say that the applicant was charged in a criminal proceedings and was suspended from service. During the suspension period he was superannuated. He was ultimately acquitted in the criminal proceedings. Respondents on the ground that an appeal has been filed in the High Court have refused to sanction his gratuity and commuted value of pension, allowing only provisional pension. The applicant contends that in view of his acquittal he is eligible for these benefits as well as for regularization of the period spent under suspension.
10. The learned counsel for the applicant has called to his assistance the following judgments:
"(i) Shri Surinder Kumar v. State of Himachal Pradesh & Anr.
1985(3) SLR page 254 0 Himachal Pradesh High Court-DB
(ii) Shri Balak Singh Thakur v. State of Madhya Pradesh dated 23 Jan 2014 in WP No. 7592/2013 (Madhya Pradesh High Court- DB).
(iii) Shri S. Rajagopal v. Registrar CAT in WP No. 18949/2014 dated 27.8.2015 (High Court of Judicature at Madras).
11. In the first reference above, the Hon'ble High Court of Himachal Pradesh ruled that once innocence is established in Court, suspension of the individual is non-est and preferment of an appeal against acquittal cannot be regarded as continuation of the trial. The relevant part reads as follows:
"As a result of the lodgement of the first information, the petitioner was detained in custody and that after investigation, he was put up for trial in two cases before a criminal court. The trial court convicted him but the appellate court acquitted him in both the 5 cases. The orders of acquittal are indubitably under challenge in the High Court. The preferment of acquittal appeals cannot, however, be regarded as the continuance of the trials. The trials have concluded with the judgment of acquittal (see State v B.C.Dwivedi, 1983 (2) XXIV GLR 1315). The initial presumption of innocence must, therefore, be regarded as having been doubtedly reinforced by orders of acquittal passed in favour of the petitioner. Under such circumstances, the continued operation of the order of suspension as from the date of acquittal cannot be regarded as reasonable, fair and just. Merely because the petitioner was, at one point of time , detained in custody for a period exceeding forty- eight hours, he cannot be kept under suspension perpetually, especially when the allegations on the basis of which he was detained and which ultimately became the subject matter of two trials before the criminal court, are found by a court of competent jurisdiction to have been not established beyond reasonable doubt. Under the circumstances, in our opinion, on a rational and just view of the facts and circumstances of the case, the petitioner is required to be re-instated in service on and with effect from the date of the orders of acquittal.
12. In the case referred to as no. 2 above, it has been stated as follows:
"The preferment of a criminal revision or an appeal against an acquittal cannot be regarded as a continuance of the trial and cannot be treated to be pendency of judicial proceeding as the initial presumption of innocence gets re-enforced by the orders of acquittal. The contention therefore, put forth by the respondents that the filing of revision against the judgment dated 12.12.2000 would tantamount to the pendency of judicial proceedings does not reason with the provisions as they stand under law. In the considered opinion of this Court, after acquittal, which lead to an affirmation of the innocence of the accused, an appeal or revision, as the case may be, being not a continuation of trial, will not amount to a pendency of judicial proceedings.
13. In the case of 3rd reference above, it has been ruled that merely because an appeal is pending, it is not open to the respondents not to regularise the period of suspension as duty.
14. The view arrived at on the basis of the judicial pronouncements above is clear and unambiguous. The innocence of the applicant has been established by his acquittal. The mere fact that an appeal has been filed against the order by the respondents does not give them the power to continue punitive action against the applicant, who had been declared innocent by the trial court, by way of denying him his rightful benefits. As important factor to be kept in mind here is that no departmental action has been initiated or contemplated against the applicant. Hence from every angle it is 'clear'. In this context to further reinforce our conclusion we shall quote the judgment by the Madhya Pradesh High Court in Sheo Ram v. State (AIR 1964 Allahabad 290):
"The preferment of a criminal revision or an appeal against an acquittal cannot be regarded as a continuance of the trial and cannot be treated to be pendency of judicial proceeding as the initial presumption of innocence gets re-enforced by the orders of acquittal. The contention, therefore, put forth by the respondents that the filing of revision against the judgment dated 12.12.2000 would tantamount to the pendency of judicial proceeding does not 6 reason with the provisions as they stand under law. In the considered opinion of this Court, after acquittal, which lead to an affirmation of the innocence of the accused, an appeal or revision, as the case may be, being not a continuation of trial, will not amount to a pendency of judicial proceedings."
15. On a consideration of all factors we find that the applicant has made out a case in his favour. The Original Application succeeds. We direct the respondents to regularize the applicant's period of suspension from 27.4.2007 to 31.12.2008 and grant all consequential benefits arising therefrom. The respondents will take action to release all monetary benefits due to the applicant by way of retirement gratuity and others. However, we refrain from ordering payment of interest on the amounts to be disbursed. The orders are to be implemented within three months from the date of receipt of a copy of this order without fail. No costs."
6. The copy of the above order in OA No. 246/2017 dated 18.11.2017 is produced as Annexure A2. The said order was later challenged by the official respondents before the Hon'ble High Court of Kerala in OP (CAT) No. 86/2018, which was also dismissed by the Hon'ble High Court of Kerala vide judgment dated 9.9.2020 produced as Annexure A3. This judgment dealt with the said OP (CAT) No. 86/2018 along with other connected cases. While dealing with the same, the Hon'ble High Court noted as follows:
"The only question arising for our consideration in these cases is whether an order of acquittal by the competent criminal court following the trial should be treated as a culmination of 'judicial proceedings' for the purposes of Rules 9 & 69 of Central Civil Services (Pension) Rules 1972 ('the CCS Pension Rules') and analogous provisions contained in Rules 9 & 10 of the Railway Servants (Pension) Rules 1993 ('the Railway Pension Rules').
2. OA No.246/2017 out of which OP (CAT) No.86/2018 arises was allowed by the Tribunal holding that once an order of acquittal is passed by the competent criminal court, notwithstanding the fact that an appeal is pending against such acquittal, the provisions of Rule 69 (1) (c) cannot be invoked to withhold retirement gratuity. It was also directed that the period of suspension of the applicant before the Tribunal was also to be regularized...................."7
The Hon'ble High Court then held as follows:
"3. A reading of Rule 69(1)(c) of the CCS Pension Rules and Rule 10 of the Railway Pension Rules shows very clearly that no gratuity shall be paid to the Government servant until the conclusion of the Departmental or Judicial proceedings and the issue of final orders thereon. It is pertinent that the term used is 'judicial proceedings'. It is also clear that and for the purpose of the Rules such judicial proceedings include both civil and criminal proceedings. The Tribunal has proceeded on the basis that a criminal trial comes to an end when an order of acquittal or conviction as the case may be is imposed on the accused person. There is, no doubt, considerable authority for that proposition. But the question is whether the term 'judicial proceedings' used in Rule 69 (1) (c) would, in respect of criminal case/proceedings, mean just the criminal trial or would it include an appeal against an order of acquittal.
4. While deciding OA No.246/2017, the Tribunal placed reliance on
(i) Surinder Kumar v. State of Himachal Pradesh and another; 1985 (3) SLR 254 (DB), (ii) Balak Singh Thakur v. State of Madhya Pradesh; 2014 SCC OnLine MP 1036 & (iii) S. Rajagopal v. Registrar, CAT; D.B Judgment of the Madras High Court in W.P (C) No.18949/2014 dated 27-08-2015.
5. In Surinder Kumar (supra) a Division Bench of the Himachal Pradesh High Court was concerned with an order of suspension imposed upon an employee following his detention in a criminal case. The court came to the conclusion that there is no cause to continue the suspension of an employee when the criminal charges which led to his detention in the first place have been found to be not established. In Balak Singh Thakur (surpa) a learned single judge of the Madhya Pradesh High Court has taken the view that the preferment of a criminal revision or appeal against an order of acquittal cannot be treated as a continuation of the trial or the pendency of a judicial proceeding. This finding was with specific reference to the definition of 'Judicial proceeding' in Section 2(i) of the Code of Criminal Procedure. It was held "A person so acquitted of the charges stand at par with a person who is not being charged and was not subjected to a criminal proceeding. The preferment of a criminal revision or an appeal against an acquittal cannot be regarded as a continuance of the trial and cannot be treated to be pendency of judicial proceeding as the initial presumption of innocence gets re-enforced by the orders of acquittal." In S. Rajagopal (supra) a Division Bench of the Madras High Court was considering the issue of regularization of the suspension period following the acquittal, the suspension having been made on account of either having been arrested and kept in custody or otherwise on account of the Criminal proceedings. It was held that the term 'judicial proceedings' in so far as criminal cases are concerned comes to an end when an order of acquittal is passed. In Rajagopal (supra) the Division Bench of the Madras High Court referred to Surinder Kumar (supra); State of West Bengal v. Hari Ramalu; 2000 (3) LLN 638; Chandu Ram v. State of H.P;
2009 SCC OnLine HP 1303; State of Haryana v. Banwari Lal; 2010 SCC OnLine P&H 183, Chief Commissioner of Land Administration A.P, Hyderabad v. R.S Ramakrishna Rao; 2010 (2) ALD 773, R.C Dubey v. M.P State Electricity Board; 2013 SCC OnLine MP 1004 and held:-
"19. Reverting to the case on hand, perusal of the judgment in ACB Case No.3/2006, dated 31.03.2008, on the file of the Special Judge and Presiding Officer of Fast Track Court, Vadodara, shows that the petitioner was acquitted on merits and that the Court, after 8 considering all the facts, held that there is no cogent and reliable evidence and that the complainant himself was not clear. The Court has further held that averments made by the prosecution cannot be accepted and resultantly, when there was no evidence, the petitioner is entitled to be acquitted.
20. While that be the clear finding recorded in the judgment, acquitting the petitioner, under the premise of appeal, being filed and pending, against the order of acquittal, the petitioner cannot be deprived of the regularisation of the suspension period, endlessly. Disposal of the appeal may take a long time. The petitioner is stated to have retired from service. There is no certainty that the State would be satisfied, even if the appeal in the High Court fails. If the State chooses to prefer a further appeal to the Hon'ble Supreme Court, the Department may again contend that the appeal is pending before the Apex Court. Thus, if the arguments of the respondents 2 and 3 have to be accepted, then there is no finality to the judgment of acquittal. In the light of the discussion and decisions considered, the further contention of the learned counsel that Vigilance has not given a clearance, cannot be countenanced"
6. We are in respectful agreement with the view of the Division Bench of the Madras High Court in Rajagopal (supra). We therefore uphold the order of the Tribunal in each of these cases and dismiss these Original Petitions."
7. The above matter was then challenged before the Hon'ble Apex Court in SLP© No. 6097/2021 by the respondents in the OA. This was withdrawn by the respondents later and hence the SLP was dismissed as withdrawn. The Apex Court went by the ground taken by the Additional Solicitor General that the departmental proceedings have been concluded and the consequences of that have not been taken into account. A copy of the order has been produced at Annexure A4. It is submitted that subsequent to this, the respondents released all the benefits due to Shri T. Karunakaran, the first accused in the C.B.I Criminal Case by a letter dated 22.9.2021 issued by the office of the 1st respondent produced at Annexure A5. In the said letter it has been indicated that, keeping in view the circumstances of the case the proposal of CPMG, Kerala Circle to release the pensionary benefits to Shri T. Karunakaran to comply with the order of the CAT, Ernakulam in OA No. 9 246/2017 has been approved by the competent authority, subject to the outcome of the criminal appeal filed by the CBI against the acquittal of the official by the Court of Special Judge-II (SPE/CBI), Ernakulam and that it will not be a precedent for other such cases. Hence, by this letter/order Shri T. Karunakaran the 1st accused in the CBI case, was granted all the retirement benefits, whereas the applicant, who had been arrayed as a co- accused and has since retired, has not been given his retirement benefits. Further, the applicant submits that he has not been granted the benefit of financial upgradation under the MACP scheme. After coming to know about the decision of the Hon'ble High Court of Kerala dated 9.9.2020 in OP (CAT) No. 86/2018, the applicant submitted a representation dated 15.1.2021 addressed to the 3rd respondent, produced as Annexure A6. Another representation was submitted later as at Annexure A7. However, in spite of this, provisional pension is only being sanctioned to him once every six months. He submits that, so far he has not been granted a regular pension after regularizing the period of suspension. He has also been not been granted the financial upgradation under the MACP scheme on account of the stand taken by the respondents that the appeal against the acquittal constitutes a continuation of the judicial proceedings.
8. Thus from the above narration of facts as well as Court findings the main reliance of the applicant is on the finding that in terms of Annexure A1 judgment, the judicial proceedings against the applicant have to be taken as coming to an end with his acquittal in the CBI Criminal Case. He submits that it cannot be said that any judicial proceedings were pending against the 10 applicant on the date of his superannuation and hence the respondents were duty bound to release his pension and other retirement benefits, in accordance with CCS (Pension) Rules, 1972. He has been found not guilty in the Annexure A1 judgment and he has been totally exonerated of the charges. By the Annexure A2 order of the Tribunal which was confirmed by Annexure A3 judgment of the Hon'ble High Court and by Annexure A4 order of the Hon'ble Apex Court, it has been decided in the matter of the 1st accused in the Criminal Case in effect that, the appeal against the judgment of the acquittal does not in turn constitute the continuance of the judicial proceedings and that the entire retirement benefits and other service benefits should be released, as if there were no judicial proceedings pending against the applicant. It is submitted that since the applicant was a co-accused along with Shri T. Karunakaran in the Criminal Case and since the applicant too placed under suspension with effect from the same date i.e. 27.4.2007, the respondents, while taking a decision in favour of Shri T. Karunakaran ought to have taken an identical decision in favour of the applicant and release him all the benefits. It is submitted that the nonfeasance on the part of the respondents in releasing the retirement benefits, regular pension, etc. is arbitrary, discriminatory and violative of Articles 14, 16, 21 and 300A of the Constitution. It is also submitted that the applicant is over 69 years of age on the date of filing of this OA and he has rendered about 33 years of regular service as on the date of superannuation. However, the respondents have not agreed with these contentions. During the pendency of this OA, the applicant received a letter, produced at Annexure A8, from the Superintendent of Post Offices, Kannur Division stating that since he was 11 neither an applicant nor a miscellaneous applicant in the OA No. 246/2017, filed by T. Karunakaran the relief/benefit ordered in the said order at Annexure A5 cannot be given to him.
9. The respondents filed a reply statement in the OA where they submit that the applicant, who was a Mail Overseer in Kannur Sub Division (since retired), along with Shri T. Karunakaran, Assistant Superintendent of Post Office, Kannur Sub Division (also since retired) were arrested on 27.4.2007 at 9.50 hours by the Central Bureau of Investigation (CBI) for accepting a bribe amount of Rs. 10,000/- in connection with the appointment to the post of Gramin Dak Sevak Mail Deliverer (GDSMD), Mowencherry SO. The complainant, one Shri Sandeep Vazhayil, was one of the candidates invited for verification of documents held on 17.4.2007 in connection with the selection to the post. As per the calculation sheet, Shri Sandeep Vazhayil was in the top position with 417 marks in the SSLC. However, the proceedings of selection process were not recorded in the tabulation sheet after the verification process on 17.4.2007. The applicant was detained in the custody of the CBI for a period exceeding 48 hours and was therefore, placed under suspension from the date of detention in custody i.e. 27.4.2007. A criminal case was then registered by CBI against the applicant who was the 2nd accused. The suspension of the applicant was reviewed by the respondents and he was reinstated in to service by the 3rd respondent on 9.7.2010. After reinstatement, the applicant was posted as Postman, Kalliasseri SO under Taliparamba HO.
12
10. It is submitted by the respondents that the applicant was found not guilty and acquitted by the Special Judge (SPE/CBI)-II, Ernakulam as per Annexure A1 judgment by granting 'benefit of doubt'. It is further submitted that the CBI filed Criminal Appeal No. 1241/2015 before the Hon'ble High Court of Kerala against the Annexure A1 judgment. A copy of the case status obtained from the website of the Hon'ble High Court of Kerala, produced as Annexure R1(A), shows that the case is still pending. The respondents submit that after the applicant retired from service on 31.5.2012, provisional pension is being paid to him, as per Rule 69(1)(a) of CCS (Pension) Rules, 1972 with effect from 1.6.2012 onwards. It is submitted that as the appeal is pending before the Hon'ble High Court of Kerala, no retirement benefits have been paid to him in view of the provisions of Rule 69(1)(c) of CCS (Pension) Rules, 1972. The said rule is produced in the reply statement and is extracted as below:
"69(1)(c) No gratuity shall be paid to the Government servant until the conclusion of the departmental or judicial proceedings and issue of final orders thereon."
Further it is submitted that the term 'judicial proceeding' has been defined under Section 2(i) of the Code of Criminal Procedure, 1973 which reads as follows:
"(i) "judicial proceeding" includes any proceeding in the course of which evidence is or may be legally taken on oath."
Further, Chapter XXIV of the Code of Criminal Procedure, 1973 deals with appeals; and under Section 391 the appellate court may take further evidence or direct it to be taken. A bare reading of the Section would, therefore, make it clear that the High Court is empowered to take evidence if it thinks additional evidence to be necessary and, thus, the proceeding before the 13 High Court in the course of which evidence is or may be legally taken on oath, is a 'judicial proceeding'. As such it cannot be said that the judicial proceedings have been concluded and that final orders have been passed. Moreover, the appeal pending before the Hon'ble High Court is statutory and, therefore, the trial court's verdict does not attain finality during pendency of the appeal and for that purpose a trial is deemed to be continuing despite acquittal. Thus, the applicant is not entitled for gratuity until the conclusion of the judicial proceedings and until final orders are issued.
11. It is also submitted that, as can be seen from Annexure A4 order of the Hon'ble Supreme Court in the matter of Union of India v. T. Karunakaran in SLP© No. 6097/2021 arising out of the judgment and order dated 9.9.2020 in OP (CAT) No. 86/2018 of the Hon'ble High Court of Kerala, as many as 3 Special Leave Petitions had been listed before the Hon'ble Supreme Court on that occasion. It is submitted that a common order was passed on a submission made by the learned Additional Solicitor General and not purely on the merits of the case. Consequent to this the respondents issued Annexure A5 order in the case of Shri T. Karunakaran in implementation of Annexure A2 order of the Tribunal, keeping in view only the circumstances of that case. It is also submitted that paragraph 2(ii) of Annexure A5 order clearly indicated that the said order will not be a precedent for other such cases and, hence, the claim of the applicant that he being arrayed as co-accused has been denied the retirement benefits, is to be taken as devoid of merit and untenable. It is submitted that, as per the 14 relevant rules, a decision can only be taken after the decision in the Criminal Appeal filed before the Hon'ble High Court of Kerala. Further, during oral submissions, Smt. O.M. Shalina, SCGSC submitted that, in fact, the order of the Hon'ble Supreme Court at Annexure A4 passed on the submission of the learned Additional Solicitor General relating to some departmental proceedings thereon was not relevant in the case of Shri T. Karunakaran, per se, as no such departmental proceedings had been initiated against the applicant or against Shri T. Karunakaran. The entire matter arose from a criminal case filed by the CBI after setting a trap for the accused.
12. The respondents have, in turn, produced a number of orders /judgments of the Hon'ble Supreme Court in support of their position. In the matter of Smt. Akhtari Bi v. State of M.P., AIR 2001 SC 1528, the Hon'ble Supreme Court in the context of pendency of an appeal, observed as under:
"........Appeal being a statutory right, the trial court's verdict does not attain finality during pendency of the appeal and for that purpose his trial is deemed to be continuing despite conviction........"
Similarly, while deciding Gurpal Singh v. High Court of Judicature for Rajasthan, (2012) 13 SCC 94, the Hon'ble Apex Court observed as follows:
"34. As noticed above, Mr. Calla has submitted that the suspension of the petitioner should have been revoked at this stage. It will not be possible to accept the proposition that as soon as the trial court had acquitted the petitioner, the Rajasthan High Court was required to forthwith revoke the order of suspension. Undoubtedly, the petitioner could have been given a non- sensitive posting, not involving judicial functions. But, it was not imperative for the High Court to revoke the suspension, at that stage. It is a matter of record, that the prosecution agency decided to file an appeal against the judgment and order passed by the trial court, acquitting the petitioner. The appeal filed by the CBI was admitted by the Delhi High Court and remained pending till it was decided on 27th September, 2005. Therefore, the conclusions recorded by the trial court, were not final. They were liable to be reversed in appeal by the High Court. Thus, during the said period/stage, it cannot be said that the continuance of the suspension of the petitioner was wholly unjustified.15
Merely because the High Court could have revoked the suspension, would not render the decision to continue the suspension, wholly unjustified."
Further, in State of U.P. v. Padam Singh rendered by the Hon'ble High Court of Allahabad in Government Appeal No. 2169 of 1980 dated 21.4.1995 it was observed as under:
".........When it is said that appeal is continuation of the trial it is not the same thing as to say that appeal is trial itself. Trial commences with the framing of the charge and terminates with the verdict of conviction or acquittal by the trial Court. Appeal is continuation of the trial in the sense that the verdict of the trial Court is not the ultimate, it is subject to the decision of the appellate court and that the appellate court is competent to exercise all the powers of the trial court in dealing with the matter under appeal. In an appeal against acquittal, the appellate court has full power to review the evidence upon which the order of acquittal was founded and come to its own finding, bearing in mind that it does not have the advantage of the trial Court in observing the demeanour of the witnesses and also that the presumption of innocence of the accused is reinforced by the judgment of acquittal rendered by the trial Court........"
In addition to the above, the learned SCGSC during oral submissions drew attention to the judgment dated 16.9.2010 of the Hon'ble High Court of Delhi in Lakhminder Singh Brar v. Union of India & Ors., in WP© No. 13191/2009 where the Hon'ble High Court had specifically gone into the matter whether the respondents were right in granting only the provisional pension to the petitioner instead of regular pension on account of the pendency of Criminal Appeal against his acquittal. The Hon'ble High Court noted that the short point before the Principal Bench of this Tribunal in the OA No. 1991/2007 was "whether the respondents were right in granting only the provisional pension to the petitioner instead of regular pension on account of the pendency of Criminal Appeal against his acquittal". The Tribunal had answered this question against the petitioner and that was why the petitioner was before this Court. The Hon'ble Delhi High Court held in paragraphs 12 and 13 of the judgment as under:
16
"12. Taking note of the aforesaid provisions, the Tribunal rightly observed that in a case where any departmental or judicial proceedings are pending against a Government servant, he would be entitled to provisional pension only to be adjusted under sub-Rule (2) of the Rule 69. The competent authority is required to pass order for regular pension only upon conclusion of these proceedings. It is, no doubt, true that the order of acquittal is final unless it is reversed in appeal. Nevertheless, an appeal against the order of acquittal would be in continuation of the judicial proceedings pending against the Government servant within the contemplation of Rule 9 of Pension Rules. It cannot be said that the pendency of the criminal appeal against the order of acquittal of the petitioner would not amount to judicial proceeding under Rule 69 read with Rule 9 of Pension Rules, notwithstanding the fact that an order of acquittal is effective and final until it is reversed in appeal. The consideration that matter in the case of suspension are different from those that may be relevant in the matter of grant of pension, be it provisional or a regular one. Grant of pension is regulated by relevant rules. As such, the cases relating to suspension as are relied upon by the petitioner's counsel are distinguishable and are not of any help in so far grant of pension is concerned.
13. Accordingly, the Tribunal dismissed the Original Application filed by the petitioner. We find that the order passed by the Tribunal is in accordance with law and does not call for any interference by us in these proceedings under Article 226 of the Constitution of India."
(emphasis supplied)
13. It is submitted that drawing from the above judgments of the Hon'ble Supreme Court and Hon'ble High Court, the relief sought in the OA are not admissible. It is contended in the reply statement that the conclusions arrived at by the Hon'ble High Court of Kerala as well as earlier by the Tribunal in the case of T. Karunakaran i.e. in OP (CAT) No. 86/2018 and in OA No. 246/2017 (Annexures A3 and A2 respectively) who was the co-accused along with the applicant were made or drawn without referring to the legal provisions. Further these conclusions were drawn without taking into consideration the findings by the Hon'ble Supreme Court and Hon'ble High Court in similar matters as brought out earlier. The respondents, therefore, emphasize that the question of law, in the light of the above legal proposition as well as latest judgments had been neither considered nor decided either by the Tribunal in the Annexure A2 order or by the Hon'ble 17 High Court in Annexure A3 judgment. Hence, it is submitted that the applicant cannot simply paralelly claim relief of terminal benefits during the pendency of the criminal appeal. As such, there is no nonfeasance on the part of the respondents in refusing to release his regular pension and other retirement benefits and the charge placed on the respondents of being arbitrary or discriminatory and the action taken being termed unconstitutional and violative of the provisions of the Constitution are totally untenable. It is further submitted that Annexure A4 order of the Hon'ble Supreme Court was issued on the basis of the submission of the learned Additional Solicitor General that the departmental proceedings have been concluded, whereas there were no such proceedings against both the accused, and, therefore, the consequences of that have not been taken into account by the respondents. It is submitted that the mere reason that the applicant was a co-accused in the case does not make him entitled to seek a similar order. Further the order which was passed at Annexure A1 by the learned Special Judge (SPE-CBI)-II, Ernakulam was pronounced on 31.12.2014, by which time the applicant has already retired from service on attaining the age of superannuation on 31.5.2012. The applicant was due for MACP and the same could not be granted as judicial proceedings at that time were pending against the applicant.
14. In this matter learned counsel for the respondents has drawn attention to FR 54-B(1) of the Fundamental Rules which deals with the procedure for considering the question of pay and allowances to be paid to Government servants for the period of suspension and whether or not the period under 18 suspension should be treated as period spent on duty. It is submitted that as per FR 54-B(1)(a)&(b), it is the authority, which is competent to order reinstatement, that is required to consider and make specific orders. Second, it is submitted that a decision in this regard can be taken only after conclusion of the judicial proceedings. Hence, the respondents have acted in accordance with law. It is submitted that the Hon'ble Supreme Court in a catena of judgments has held that the guarantee of equality enshrined in Article 14 is a positive concept and is not enforceable in a negative manner and that this principle extends to judicial orders as well. Thus, it is submitted that, in compliance of Rule 69 of the CCS (Pension) Rules, 1972, the applicant is only entitled for provisional pension and there cannot be a mandamus to compel the statutory authorities to act contrary to the statute or rules made therein under, as has been held by the Hon'ble Supreme Court in State of West Bengal v. Subhas Kumar Chatterjee - 2010 (11) SCC 694. The applicant has not substantiated his case or arguments that there is any existing law, i.e. either the CCS (Pension) Rules, 1972, the Fundamental Rules or such other rules, empowering or obligating the respondents to release the gratuity during the pendency of judicial proceedings. Thus, the respondents submit that the applicant is not entitled to get any of the reliefs sought for.
15. Learned counsel for the applicant Shri T.C. Govindaswamy and Smt. O.M. Shalina, learned SCGSC appearing for the respondents have made their oral arguments/submissions. On going through both the judgments relied upon by the applicant in the OA, in the matter of co-accused in the 19 CBI case Shri T. Karunakaran, produced herein at Annexures A2 and A3, it is seen that this Tribunal as well as the Hon'ble High Court clearly accepted the contention of the applicant therein that the fact that an appeal has been filed against the order by the respondents did not give them the power to continue further punitive action against the applicant who had been declared innocent by the trial court, by way of denying him his rightful salary or retirement benefits. An important and relevant factor to be kept in mind in this matter is that no departmental action was initiated or even appears to have been contemplated against the applicant. The applicant has largely relied upon the judgments of various courts relating to continuation of suspension in this case, as well the judgment of the Madhya Pradesh High Court in Sheo Ram v. State - AIR 1964 Allahabad 290, where it was held that preferment of a criminal revision or an appeal against an acquittal cannot be regarded as a continuance of the trial and cannot be treated to be pendency of judicial proceedings as the initial presumption of innocence gets re-enforced by the orders of acquittal. The Hon'ble Madhya Pradesh High Court, which had gone into the issues in that same order of appeal filed in OP (CAT) No. 86/2008, had agreed with the view taken by the Division Bench of Madras High Court in S. Rajagopal v. Registrar, CAT - WP© No. 18949/2014 dated 27.8.2015. However, there are other judgments which support the contentions taken by the respondents as brought out earlier. It is also a fact that such other judgments have not been cited in the order of the Tribunal nor in the orders of the Hon'ble High Court. However, what is also true at the end of the day is that the co-accused of the applicant Shri T. Karunakaran in the same matter had been allowed by this Tribunal to draw 20 his full benefits by way of retirement gratuity, etc., though payment of interest on delay had been disallowed. It is found that the Hon'ble High Court has upheld this position. In such circumstances, to an extent, this Tribunal has to be guided by the judgment of the Hon'ble High Court as the applicant too was a co-accused in the original CBI case and both the 1st accused Shri T. Karunakaran and the 2nd accused the applicant were acquitted on the basis of benefit of doubt. It has to be presumed that all aspects were considered while allowing the benefits in that case. Hence, allowing one of the accused his retirement benefits and not allowing the other when the facts and circumstances are the same, especially also when the Hon'ble High Court has upheld the grant of the benefits in the case of the 1st accused, should weigh strongly in the decision to be taken in this matter.
16. In the light of these considerations this Tribunal allows this Original Application to the extent to what had been allowed in the OA No. 246/2017 i.e. to regularize the period of suspension from 24.7.2007 as duty and to grant consequential benefits including arrears of pay and allowance, etc. It is so ordered accordingly. However, no interest as prayed for can be given in the matter. Further in line with the orders by the respondents in the case of Shri T. Karunakaran at Annexure A5 the orders to release the pensionary benefits to the applicant can be made subject to the outcome of the criminal appeal filed by the CBI in the Hon'ble High Court of Kerala against the acquittal by the Court of Special Judge (SPE-CBI)-II, Ernakulam. Further, allowing of these pensionary benefits should not be a precedent but is being ordered purely in the light of the orders of this Tribunal and the Hon'ble 21 High Court in the connected case. The respondents shall comply with these directions within a period of three months from the date of receipt of a copy of this order.
17. The Original Application is allowed as above. No order as to costs.
(K. V. EAPEN) ADMINISTRATIVE MEMBER "SA"
22
Original Application No. 180/00604/2021 Annexure A1: A true copy of the judgment dated 31.12.2014 rendered by the learned Special Judge (SPE-CBI)II.
Annexure A2: A true copy of the Order rendered in OA No. 180/246/2017 dated 18.11.2017 by this Hon'ble Tribunal. Annexure A3: A true copy of judgment in OP(CAT) No.86/2018 & connected cases 09.09.2020.
Annexure A4: A true copy of the order dated 28.06.21 rendered in SLP (C) No.6097/2021 and connected cases.
Annexure A5: A true copy of the Order bearing No. C-18013/36/2020- VP(Vol.I) dated 22.09.2021 issued from the office of the 1st respondent. Annexure A6: A true copy of the representation dated 15.01.2021 submitted by the applicant addressed to the 3rd respondent. Annexure A7: A true copy of the representation dated 26.10.2021 Submitted by the applicant addressed to the 3rd respondent. Anneuxre-A8: A true copy of the order bearing No. C/Pen/539 dated 01.12.2021, issued by the 3rd respondent.
Annexure R1(A): True copy of the case status obtained from the website of the Hon'ble High Court of Kerala.
AnnexureR1(B): True copy of the Memo No.F1/Misc/07-08 dated 09.07.2010.
AnnexureR1(C): True copy of Memo number DP/CHN/2015/4547/3/09/A/07/KER dated 30.09.2015 issued by the Superintendent of Police, CBI.
Annexure R1(D): True copy of letter No L/Pen 539 dated 01.12.2021 issued by the 3rd Respondent.
-x-x-x-x-x-x-x-x-x-