Central Administrative Tribunal - Bangalore
S.R. Gurudatta vs The Director (Admn.) on 19 August, 2004
Equivalent citations: 2005(1)SLJ367(CAT)
ORDER Mukesh Kumar Gupta, Member (J)
1. How to treat period of suspension, when the same was resorted on account of criminal offence being under investigation/inquiry and ending in acquittal, is the question posed for consideration in the present application.
2. Few core facts which are not disputed are as follows : On registration of FIR for embezzlement of Government money under C.R. No. 340/81 under Section 408 and 477-A of IPC, the applicant was placed under suspension with effect from 31st August, 1981 vide endorsement dated 16th October, 1981 on the ground that "criminal offence is under investigation/enquiry". The applicant was put to Trial in two identical cases being CC.Nos. 966/90 and 999/90. After criminal trial in the aforementioned CCs, vide two separate judgment dated 7th March, 2000 (Annexures-A4 & A7), the learned Additional Chief Judicial Magistrate, Mysore, acquitted him holding that:
"On perusal of entire evidence on record reveals, none of the witnesses are in a position to speak fixing the responsibility of misappropriation of amount by the accused. The other witnesses were not produced by the Police even sufficient adjournments were granted. In this case the material witness is the auditor. Police did not produce the said witness. Non-examination of auditor is fatal to prosecution case."
3. The grievance of the applicant is that the period of suspension i.e. 31.8.1981 to 22.12.1998 should be treated as one on duty with all consequential benefits, including pay and arrears. The said suspension was revoked vide order dated 30.11.1998 with immediate effect but he was reinstated w.e.f. 23.12.1998. On an earlier occasion, the applicant approached this Tribunal vide O.A. 1509/2001, which was disposed of with, directions to respondents to determine the period of suspension of the applicant w.e.f. 31.8.1981 till the date of reinstatement under Rule 54 (B) of the Fundamental Rules, within a period of three months.
In the purported compliance of the said direction, the respondents passed the impugned office memorandum dated 15.11.2002 (Annexure-A9) rejecting the applicant's request to treat the said period of suspension as duty for all purposes, by stating that his acquittal cannot be treated as honourable acquittal or full exoneration, and the departmental enquiry is still pending against him. It was further stated that the order was subject to the review after conclusion of the disciplinary proceedings, which have already been initiated against him. It would be expedient to reproduce the relevant portion of the said O.M., which reads thus:
"Shri S.R. Gurudatta's acquittal from the Court was not on merits but due to some technical flaws on the prosecution side, and as such his acquittal cannot be treated as 'honourable acquittal' or full exoneration'. Departmental inquiry is still going on against him. His case has been re-examined in terms of the provision of FR 54-B, keeping in view the contents of his representation dated 7.10.2002.
Shri Gurudatta, is hereby informed that his period of suspension would be treated as non-duty and he would be given pay and allowances during the period of suspension equivalent to the subsistence allowance and other allowance which were admissible to him during the period of his suspension.
This order is, however, subject to review after the conclusion of the disciplinary proceedings which have already been initiated against him." (Emphasis supplied) The aforesaid O.M. is under challenge on the grounds that the applicant's acquittal cannot be treated as technical acquittal; there had been substantial delay on the part of the respondents even for initiating the departmental proceedings; the said charge memo had not been served upon the applicant till 23rd January, 2004, when he filed an affidavit to place the said fact on record; FR 54-B does not empower the respondents to reject applicant's claim and he cannot be penalised for passing the said order as the respondents failed to review the suspension.
4. The respondent contested the said claim by reiterating their stand taken in the impugned O.M. that the applicant was acquitted only on technical grounds; the said acquittal was neither on merits nor honourable; the Competent Authority after due examination of all the relevant documents had come to the conclusion that applicant's suspension was fully justified and therefore the period of suspension was treated as non-duty. Further, the said impugned order is a detailed and speaking order. It was further contended that the charge memo under Rule 14 of CCS (CCA) Rules, 1965 was issued vide memorandum dated 30th May, 2003 (Annexure-R2), which proceedings are still pending.
5. We heard learned Counsel for the parties and perused the pleadings. Both sides reiterated their su6missions as mentioned in the pleadings, extracted herein above.
6. Mr. M.R. Achar, learned Counsel for the applicant took us through the judgments passed by the learned Additional Chief Judicial Magistrate, Mysore in C.C. Nos. 966/90 and 999/90 which were almost identical, pronounced on the same date, and contended that a perusal of Paras 13 and 16 of the aforementioned judgments respectively which are in verbatim, as extracted herein above would show that the acquittal was honourable and under no circumstances, the same could be construed as a technical acquittal. It was further contended that FR 54-B does not empower the respondents to treat the period of suspension as non-duty. The said provision reads as under:
"F.R. 54-B(1)--When a Government servant who has been suspended is reinstated or would have been so reinstated but for his retirement (including premature retirement) while under suspension, the authority competent to order reinstatement shall consider and make a specific order:
(a) regarding the pay and allowances to be paid to the Government servant for the period of suspension ending with reinstatement or the date of his retirement (including premature retirement), as the case may be ; and
(b) whether or not the said period shall be treated as a period spent on duty.
(2) Notwithstanding anything contained in Rule 53, where a Government servant under suspension dies before the disciplinary or the Court proceedings instituted against him are concluded, the period between the date of suspension and the date of death shall be treated as duty for all purposes and his family shall be paid the full pay and allowances for that period which he would have been entitled has he not been suspended, subject to adjustment in respect of subsistence allowance already paid.
(3) Where the authority competent to order reinstatement is of the opinion that the suspension was wholly unjustified, the Government servant shall, subject to the provisions of Sub-rule (8) be paid the full pay and allowances to which he would have been entitled, had he not been suspended:
Provided that where such authority is of the opinion that the termination of the proceedings instituted against the Government servant had been delayed due to reasons directly attributable to the Government servant, it may, after giving him an opportunity to make his representation within sixty days from the date on which the communication in this regard is served on him and after considering the representation, if any, submitted by him, direct, for reasons to be recorded in writing, that the Government servant shall be paid for the period of such delay only such amount (not being the whole) of such pay and allowances as it may determine.
(4) In a case falling under Sub-rule (3) the period of suspension shall be treated as a period spent on duty for all purposes.
(5) In cases other than those falling under Sub-rules (2) and (3) the Government servant shall, subject to the provisions of Sub-rules (8) and (9) be paid such amount (not being the whole) of the pay and allowances to which he would have been entitled, had he not been suspended, as the Competent Authority may determine, after giving notice to the Government servant of the quantum proposed and after considering the representation, if any, submitted by him in that connection within such period (which in no case shall exceed sixty days from the date on which the notice has been served) as may be specified in the notice.
(6) Where suspension is revoked pending finalisation of the disciplinary or the Court proceedings, any order passed under Sub-rule (1) before the conclusion of the proceedings against the Government servant, shall be reviewed on its own motion after the conclusion of the proceedings against the Government servant, shall be reviewed on its own motion after the conclusion of the proceedings by the authority mentioned in Sub-rule (1) who shall make an order according to the provisions of Sub-rule (3) or Sub-rule (5), as the case may be.
(7) In a case falling under Sub-rule (5), the period of suspension shall not be treated as a period spent on duty unless the Competent Authority specifically directs that it shall be so treated for any specified purpose:
Provided that, if the Government servant so desires such authority may order that the period of suspension shall be converted into leave of any kind due and admissible to the Government servant." (Emphasis supplied)
7. Strong reliance was placed on the judgment rendered by the Hon'ble Supreme Court in Andhra Bank v. W.T. Seshachalam, (2004) 2 SCC 287=2004(2) SLJ 254 (SC). Based on the provisions as contained in Sastry Award, Desai Award and Bipartite Agreement, particularly, Sub-clause (iii) of Clause (a) of Para 5 where the investigation is carried by outside agency and the said agency comes to the conclusion not to prosecute the employee, full pay and allowance becomes payable for the period of suspension, it was held that the official would be entitled to full pay and allowances as subsistence allowance after one year where in the intervening period criminal prosecution was launched after investigation by an outside agency ending in acquittal, the departmental proceedings continued/started thereafter. In the said case, the concerned official was placed under suspension during the "regular departmental action". Police report was lodged on 1.6.1990. Charge sheet was filed in criminal case in July, 1993. The charge memo under the departmental rules were issued on 29.12.1993. The respondents therein was initially convicted by the Trial Court by order dated 25.1.1994 but conviction and sentence was set aside by the Appellate Court by order dated 10.3.1994. After acquittal, the Enquiry Officer was appointed on 13th September, 1994 to hold an enquiry into the departmental proceedings. Para 5 of the Bipartite agreement, which was the basic provision dealing with subsistence allowance reads as under :
"5. Subsistence Allowance'.
In partial modification of Paragraph 557 of the Sastry Award and Paragraph 17.14 of the Desai Award, the following provisions shall apply in regard to payment of subsistence allowance to workman under suspension in respect of the banks listed in Schedule 1.
(a) Where the investigation is not entrusted to or taken up by outside agency (i.e. Police/CBI), subsistence allowance will be payable at the following rates:
(i) For the first three months one-third of the pay and allowances which the workman would have got but for the suspension.
(ii) Thereafter one-half of the pay and allowances. (iii) After one year, full pay and allowances if the enquiry is not delayed for reasons attributable to the workman concerned or any of his representatives. Where the investigation is done by an outside agency and the said agency has come to the conclusion not to prosecute the employee, full pay and allowances will be payable after six months from the date of receipt of report of such agency, or one year after suspension, whichever is later and in the event the enquiry is not delayed for reasons attributable to the workman or any of his representative."
So far as the position as regards payment of subsistence allowance in the service conditions of the Bank, was concerned it is provided as follows:
"1. Subsistence allowance during the period of suspension should be granted on the following scale:
A. Where the enquiry is departmental by the Bank.
(1) Where the investigation is not entrusted to, or taken up by an outside agency (i.e. Police/CBI):
(a) for the first three months of suspension one-third of the pay and allowances which the workman would have got but for the suspension;
(b) for the period of suspension, if any, thereafter, one-half of the pay allowances which the workman would have got but for the suspension provided that after one year of suspension full pay and allowances will be payable if the enquiry is not delayed for reason attributable to the workman concerned or any of his representatives.
(2) Where the investigation is done by an outside agency (i.e. Police/CBI) and such investigation is followed by a departmental enquiry by the Bank and not by prosecution:
(a) for the first three months of the suspension one-third of the pay and allowances which the workman would have got but for the suspension;
(b) for the period of suspension, if any, thereafter, one-half of the pay and allowances which the workman would have got but for the suspension;
Provided that full pay and allowances will be payable after six months from the date of receipt of report of the investigating agency that it has come to the conclusion not to prosecute the employee or one year after the date of suspension, whichever is later;
And provided further that the enquiry is not delayed for reasons attributable to the concerned workman or any of his representatives.
B. Where the enquiry is held by an outside agency including a trial in a Criminal Court (irrespective of whether the enquiry/ trial is preceded by an investigation by an outside agency (i.e. Police/CBI) or not:
(a) for the first six months of the suspension one-third of the pay and allowances which the workman would have got but for the suspension;
(b) for the period of suspension, if any, thereafter, one-half of the pay and allowances which the workman would have got but for the suspension, until the enquiry is over."
After considering the above mentioned para of Bipartite Agreement, Hon'ble Supreme Court in Para 9 observed that:
"In any case, in our view, a person who is prosecuted criminally but ultimately acquitted of the criminal charges cannot be placed in a worse position in the, matter of subsistence allowance as compared to those, where the outside agency itself had concluded not to prosecute. After acquittal, clout of criminal prosecution comes to an end and in case only departmental proceedings continue or remain pending or initiated thereafter, they would be guided only by the provisions applicable, for departmental proceedings in the matter relating to payment of subsistence allowance. The conclusion of the investigating agency to prosecute, would lose its effect or relevance on acquittal in the criminal case." (Emphasis supplied)
8. Rule 10(1) of CCS (CCA) Rules, 1965 enumerates the circumstances under which a Government servant can be placed under suspension. The relevant extract of the said provisions reads as under:
"10.(1) The Appointing Authority or any authority to which it is subordinate or the Disciplinary Authority or any other authority empowered in that behalf by the President, by general or special order, may place a Government servant under suspension:
(a) where a disciplinary proceeding against him is contemplated or is pending; or
(a)(a) where, in the opinion of the authority aforesaid, he has engaged himself in activities prejudicial to the interest of the security of the State; or
(b) where a case against him in respect of any criminal offence is under investigation, inquiry or trial:
(2) xxx - xxx xxx."
(Emphasis supplied)
9. We may note once again at the cost of repetition that the applicant was placed under suspension as the criminal offence was under investigation/enquiry vide order dated 16th October, 1981. The said criminal trial ended into acquittal vide judgment dated 7th March, 2000. However, before the said criminal trial could come to an end, the suspension was revoked vide order dated 30.11.1998 and he was reinstated with effect from 23rd December, 1998. In other words, during the pendency of the criminal trial the said suspension was revoked. In the present case we are concerned with the treatment of suspension period from 31st August, 1981 to 22nd December, 1998. Once a person, placed under suspension for criminal offence being under investigation/trial/inquiry is tried for criminal offence and acquitted, such order of suspension cannot be stretched to include the pending or contemplated departmental enquiry, to be initiated after such acquittal. The word "criminal trial" cannot be termed as a "departmental action". Rule 10 of CCS (CCA) Rules itself deals with various grounds based on which the order of suspension order could be passed like Clauses (a), (aa) and (b), and all these clauses cannot be treated as similar suspension. Sub-rule 5 (a) of Rule 10 empowers the authority to modify or revoke the said suspension at any time or during the pendency of the disciplinary proceedings/criminal proceedings commenced against the Government servant.
10. In our considered .view when a suspension is revoked pending finalisation of disciplinary proceedings or Court proceedings, orders, if any, passed regulating pay and allowances for the period of suspension and treatment of the period are subject to automatic review and revision after conclusion of the proceedings according to the category under which the case may fall. If the suspension was on account of criminal offence being under investigation/enquiry, the said suspension would automatically come to an end on conclusion of such criminal trial. The word "trial" under Rule 10(1)(b) of CCS (CCA) Rules does not cover the "appellate stage", as held in 1987(3) ATC 868=1987(3) SLJ 590 (CAT-Madras), A.N. Ramakrishnan Nair v. Divisional Engineer, Telegraphs, Kottayam and Ors.. Similarly, the word "investigation" referred under the said sub-rule was interpreted as "investigation into a criminal case" (refer (1989) 9 ATC 33, Ram Kanwar v. Union of India and Ors.).
11. In the present case, the criminal trial resulted into acquittal of the applicant on 7th March, 2000. It is not the case of the respondents either that any appeal was filed against such acquittal before any higher Court. The ultimate effect of the suspension order in the facts of the present case is that it did not subsist on conclusion of the said criminal trial, under any circumstance or the date prior to the said acquittal if it is so revoked, as in the present case it was done vide order dated 30th November, 1998. On conclusion of the said trial the concerned authority was under legal obligation to pass an order and treat the period of such suspension as per law. If a suspension was on account of criminal offence being under investigation/trial and resulted in acquittal and thereafter the Disciplinary Authority initiate any departmental proceedings on the same charge and allegation, the said suspension order will not subsist. Perusal of impugned communication dated 15.11.2002 in specific show that though the period of suspension was treated as non-duty, but it was also specified that it would be reviewed after the conclusion of the departmental proceedings already initiated against the applicant. This aspect in our considered view, is not supported by any provisions of law or rule and therefore, it is required to be quashed and set aside as it is based on total non-application of mind on the part of the concerned authority.
12. The next question which needs determination is, if any person is acquitted by the Criminal Court like in the present case by making observation that none of the witnesses and the entire evidence pointed out to the guilt of the applicant and the other witnesses were not produced by the Police, which was fatal to the prosecution case. Could it be considered as a technical acquittal, and not a honourable acquittal as viewed by the authority in the impugned order dated 15.11.2002. Clause 6 of FR 54-B is the only relevant provision for our consideration in the present case, as the suspension was revoked pending finalisation of the Court proceedings.
13. From narration of facts, it is clear that not only the suspension was revoked prior to the conclusion of the said Court proceedings but even the said criminal trial resulted into acquittal. Mere initiation of disciplinary proceedings and that too after a gap of three years from the said date of acquittal, in our considered view cannot make the treatment of said period of suspension dependent upon the outcome of departmental proceedings. As no appeal was filed against the acquittal by the Criminal Court and the acquittal was made in the fashion by making observations as noted herein above, we are of the view that under no circumstance the said suspension could be held to be justified and thereby made the official disentitled to full pay and allowances, to which he would have been entitled to, had he not been suspended. The observation made by the learned Additional Chief Judicial Magistrate in his judgment dated 7.3.2000 that "prosecution failed to prove the guilt of the accused beyond reasonable doubt" cannot be read in isolation and on that basis it could not be concluded that the applicant's acquittal was on technical ground. We have to read the judgment as a whole and if we read the judgment as a whole, particularly along with the observations noted in Para 2 herein above, we would find that the applicant's acquittal has to be treated on merits and not on technical ground. We find force in the contention raised by the applicant's Counsel that in the facts of the present case the acquittal cannot but be treated as a honourable acquittal and not as a technical acquittal. The applicant was not acquitted for any benefit of doubt but for the lack of evidence against him. If the Disciplinary Authority view that the said acquittal was technical and not honourable, is accepted, it would tantamount to a situation that the Disciplinary Authority could sit in an appeal over the judgment rendered by a Court of competent jurisdiction, which in our considered view, is impermissible, particularly in the facts and circumstances of the present case.
14. The question as to whether the acquittal was technical or on merits came up for consideration before the High Court of Karnataka recently in Mehiboobsab v. Upalokayukta, ILR 2002 Kar. 2535. After relying on the decision of the Supreme Court in R.P. Kapur v. Union of India, AIR 1964 SC 787, Corporation of the City of Nagpur, Civil Lines, Nagpur v. Ramachandra G. Modak, AIR 1984 SC 626, Depot Manager, Andhra Pradesh State Road Transport Corporation v. Mohd. Yusuf Miya, AIR 1997 SC 2232=1997(1) SLJ 241 (SC), and distinguishing the decision in M. Paul Anthony v. Bharat Gold Limited, AIR 1999 SC 1416, in Paragraph 18 it was observed that the acquittal could be termed as a technical acquittal on the ground of failure to obtain requisite sanction for prosecution on the ground of limitation or where the accused is acquitted for want of sufficient evidence or non-examination of material witnesses or on account of material witnesses turning hostile or on account of conflict in evidence or where the accused is acquitted by extending the benefit of doubt on the ground that the prosecution had failed to establish his case beyond reasonable doubt, then such acquittal is not an exoneration of the accused by an honourable acquittal. It would be expedient to notice the relevant extract of the said judgment which reads thus:
17. Therefore, the principle that emerges is that an acquittal in a criminal proceedings does not take away the right of the employer to initiate or continue departmental proceedings against the employee, in regard to the same charges. But where the employee is honourably acquitted by being completely exonerated, then normally it would not be expedient or appropriate to initiate or continue the departmental enquiry, on the very same charge.
18. Where the Criminal Court acquits an accused on a technical ground (for example on the ground of failure to obtain requisite sanction for prosecution on the ground of limitation) or where the accused is acquitted for want of sufficient evidence or non-examination of material witnesses or on account of material witnesses turning hostile or on account of conflict in evidence or where the accused is acquitted by extending the benefit of doubt on the ground that the prosecution had failed to establish its case beyond reasonable doubt, then such acquittal is not an exoneration of the accused by an honourable acquittal. In such cases, the management is at liberty to proceed with the enquiry or initiate an enquiry on the very same charges, even after the acquittal. The reasons are evident.
However, on the basis of the discussions in Para 11 above, we are inclined to accept the applicant's contention that he was acquitted honourably and not on technical grounds.
15. On bestowing our careful consideration to the rival contentions raised, and after perusing the pleadings as well as judgment in W.T. Seshachalam (supra), we are of the considered view that ratio laid down in the aforesaid judgment is squarely applicable in the facts and circumstances of the present case and hold that once a person, who is placed under suspension because of criminal offence being under investigation/enquiry, is acquitted by the competent Court of law and thereafter departmental proceedings are instituted, the cause for placing him under suspension does not subsist and the said suspension cannot be held to be justified. Consequently the applicant is entitled to full pay and allowances.
16. In the light of the discussions made here in above, we are of the considered opinion that there is no merit and justification in the office memorandum dated 15.11.2002 (Annex-ure-A9) and accordingly the same is quashed and set aside. The application is allowed. The respondents are directed to treat the period of suspension from 31st August, 1981 to 22nd December 1998 as on duty with full pay and allowances, and the respondents shall comply with the aforesaid direction as early as possible and in any case, within a period of 2 months. In the circumstances, we leave the parties to bear their own costs.