Madras High Court
I. Sankarasubbu vs The Registrar General, High Court And ... on 23 January, 2008
Author: S.J. Mukhopadhaya
Bench: S.J. Mukhopadhaya, M. Venugopal
ORDER S.J. Mukhopadhaya, J.
1. This Writ Petition has been preferred by the petitioner against the order contained in Proceedings A. No. 743/99, dated 7.10.1999, D. No. 12256/99, dated 28.10.1999 and the Proceedings A. No. 79/2003, dated 10.2.2003, D. No. 1578/2003, dated 2/2003, issued by the second respondent-Principal District Judge, Tirunelveli District, Tirunelveli.
By the impugned orders dated 7.10.1999 and 28.10.1999, the petitioner's period of absence from duty and his suspension period, was ordered to be treated as under:
(i) His period of detention from 8.4.1997 to 15.4.1997 is treated as leave on loss of pay.
(ii) The period of suspension from 16.4.1997 to 10.10.1999 is treated to be as duty period only for the purposes of continuity of service for his seniority and pension alone and
(iii) It was also ordered that the period of suspension would not be treated as "duty" for claiming full pay and allowances, which he would have drawn and for leave and increment purposes.
2. The main grievance of the petitioner is that he having acquitted in the criminal case, was entitled for full payment of back-wages minus the subsistence allowance received for the period of suspension. The other grievance of the petitioner is that the aforesaid impugned order also amounts to stoppage of increment for the intervening period, though no departmental proceeding was initiated and the petitioner was acquitted in the criminal proceedings.
3. The brief facts of the case are that the petitioner, who was Junior Bailiff and posted at District Munsif-cum-Judicial Magistrate's Court at Valliyur, against him, a complaint was lodged by one Mr. Suyambu of Valliyur before the Sub-Inspector of Police, Valliyur, in Crime No. 127 of 1997, alleging that the petitioner had abused him with filthy words. The said case was registered under Sections 341, 294(b) and 506(ii) IPC. The case was subsequently tried by the learned Judicial Magistrate No. 4, Tirunelveli and on transfer, it was numbered as C.C. No. 216 of 1998.
4. In the meantime, the petitioner was placed under suspension from 8.4.1997, by the learned Principal District Munsif, Valliyur, vide Proceedings in R. No. 383 of 1997, dated 16.4.1997. He remained under suspension due to criminal case and subsequently having been acquitted in the criminal proceedings, vide judgment dated 21.12.1998 in C.C. No. 216 of 1998 by the learned Judicial Magistrate No. 4, Tirunelveli, he was reinstated from suspension, vide order dated 7.10.1999, pursuant to which he joined duty on 11.10.1999.
5. Having been reinstated, the Principal District Judge, Tirunelveli considered the question as to how the period of suspension to be treated and what salary the petitioner will be entitled during the period he was under suspension. It was considered whether any delay in trial was caused because of laches on the part of the petitioner to determine the payment of period of suspension. On such consideration, the impugned order was passed on 7.10.1999, which was affirmed by the appellate authority, vide impugned order dated 10.2.2003.
6. It would be evident from the impugned orders that the petitioner has not been paid salary on one of the grounds that the delay of trial took place because of him. For the said reason, it is desirable to quote the impugned orders in their entirety to appreciate the findings of the authority, which reads as follows:
(i) Order: A. No. 743/99, dated 7.10.1999, D. No. 12256/99, dated 28.10.1999:
The acquittal of the individual Thiru I. Sankarasubbu, Junior Bailiff, Valliyoor District Munsif Court in C.C. No. 216/98-Judicial Magistrate's Court No. IV, Tirunelveli (C.C. No. 172/97 of Judicial Magistrate's Court, Valliyoor) and his acquittal in C.C. No. 88/97-Judicial Magistrate's Court, Shencottah and his application to reinstate him have led to the passing of the Proceedings in the reference cited revoking the suspension order and reinstating him with effect from 11.10.99.
2. As the individual is reinstated, the question arises as to the regularisation of the suspension period. Under G.O.Ms. No. 444, P & A.R. dated 19.6.87 "If a person is acquitted by a Court from a criminal offence, the period of suspension shall be treated as duty for all purposes...". Under Ruling 4 under F.R.54, the Authority competent may treat the period of suspension as duty for any specified purpose(s)--say for increment alone or for leave alone or for pension alone. Though under the said Government Order, the period of suspension shall be treated as duty for all purposes, there cannot be mechanical application of the Government Order. The said Government Order is to be read in conjunction with the Fundamental Rules.
3. Benefit of the above G.O. treating the period of suspension as duty for all purposes is not available to the individual Thiru I.Sankarasubbu for more than one reason.
4. Acquittal in C.C. No. 216/98--Judicial Magistrate's Court No. IV, Tirunelveli (C.C. No. 172/97 of Judicial Magistrate's Court, Valliyoor).
Only benefit of doubt was given to the individual and the individual was acquitted on 21.12.98. It is not a case of honourable acquittal entitling the individual-Thiru I.Sankarasubbu, Junior Bailiff for claiming the suspension period to be treated as duty for all purposes.
Delay to be attributed to the individual in the trial
5. Case was registered in Crime No. 127/97 under Sections 341, 294(b) and 506(ii) I.P.C. against the individual on 7.4.97. He was arrested on 8.4.97 and was remanded to judicial custody till 22.4.97. Individual was placed under suspension w.e.f. 8.4.97 and suspension order was served on him in the jail on 16.4.97. Individual was released on bail on 19.4.97 as per High Court's order in Crl.O.P. No. 3691/97 dated 15.4.97. Charge sheet was laid on 26.4.97 and the same was taken on file in C.C. No. 172/97 on the file of Judicial Magistrate, Valliyoor. The individual does not seem to have taken steps to speed up the trial; on the other hand he was making efforts to delay the trial. In Crl.O.P. No. 9625/97, the individual has filed the petition before the High Court to quash the proceedings in C.C. No. 172/97. In the mean-while, the individual has filed the petition in the trial court to stop the witnesses/P.Ws.1 to 3 on the ground that he has filed the petition to quash the proceedings. When the trial court declined the same, the individual has moved I Additional District Judge-cum-Chief Judicial Magistrate, Tirunelveli in Cr.M.P. No. 439/97 for staying the proceedings in C.C. No. 172/97. By the order of the Chief Judicial Magistrate, Tirunelveli examination of witnesses was stayed for three months. After the Crl.O.P. No. 9625/97 was dismissed by the High Court, P.W.4 was examined by the Judicial Magistrate, Valliyoor on 22.6.98--after lapse of about four months. In the Court of Judicial Magistrate, Valliyoor the individual filed the petition to recall the witnesses on 24.6.98 and the same was allowed.
6. Delay caused by way of Transfer Petition:
While the case was pending before the Judicial Magistrate, Valliyoor the individual filed Transfer Petition before the Principal Sessions Judge, Tirunelveli under Section 408 Cr.P.C. for transferring the case--C.C. No. 172/97 from the file of Judicial Magistrate, Valliyoor to other competent court. Case was transferred to Judicial Magistrate's Court No. IV, Tirunelveli and re-numbered as C.C. No. 216/98. Witnesses were recalled and examined only in the Court of Judicial Magistrate No. IV, Tirunelveli and judgment was pronounced on 21.12.98. Thus, the individual has delayed the trial by filing,
(a) Stay petition;
(b) Transfer petition and such other proceedings.
The individual is mainly responsible for the delay in conclusion of the case in C.C. No. 216/98 (C.C. 172/97).
7. Application for reinstatement:
Individual has preferred an application to reinstate him into service on 8.1.99. The individual was also involved in Crime No. 410/96 of Shencottah Police Station under Sections 294(b), 323 and 506(ii) I.P.C. The individual has stated that the proceedings in the said case in C.C. No. 88/97 on the file of Judicial Magistrate, Shencottah was quashed by the High Court in Crl.O.P. No. 7665/97, pursuant to which he was acquitted on 5.8.97. On 19.1.99 the individual was directed to produce the certified copy of the order of the High Court in Crl.O.P. No. 7665/97. The individual has produced the certified copy of the High Court order only on 28.6.99. Thus, the delay in reinstatement is attributable only to the individual in view of the delay caused by him in the conclusion of the criminal trial and in production of the certified copy of the High Court order in Crl.O.P. No. 7665/97.
8. After the individual produced the order, particulars were called for from Judicial Magistrate, Valliyoor and Judicial Magistrate, Shencottah as to whether any other proceedings are pending against the individual. On receipt of the reply, as per the proceedings in the reference, suspension order of the individual was revoked and he was ordered to be reinstated with effect from 11.10.99.
9. Having delayed the trial and not produced the certified copy of the order in time, the individual cannot be allowed to claim the benefit of "Treating the suspension period as Duty" for the entire period. As the delay in reinstatement is attributable to the individual, he cannot be allowed to claim the benefits of full salary without doing any work. His absence from duty and his suspension period is ordered to be treated as under:
(i) His detention period from 8.4.97 to 15.4.97 is treated as leave on loss of pay.
(ii) Period of suspension from 16.4.97 to 10.10.99 is to be treated as duty only for the purposes of continuity of service for his seniority and pension alone. The above period of suspension shall not be treated as "DUTY" for claiming full pay and allowances which he would have drawn and for leave and increment purposes.
(ii) Order: A. No. 79/2003, dated 10.2.2003, D. No. 1578/2003, dated 2.2003:
Since Thiru I.Sankarasubbu, Junior Bailiff, District Munsif-cum-Judicial Magistrate Court, Sivagiri has not preferred the appeal within the time stipulated, his petition is rejected.
7. Learned Counsel appearing on behalf of the petitioner referred to Ruling No. 9 of Fundamental Rule (for short, F.R) No. 54 and submitted that the petitioner having been acquitted by the Court, is entitled for full salary as per the said Ruling. On the other hand, according to the learned Counsel appearing for the respondents, F.R.54-B(3) is applicable in the present case and the payment of arrears of salary and allowance is dependant upon the question whether the suspension was justified or not.
8. Learned Counsel appearing for the petitioner first tried to suggest that F.R.54.B(3) had been amended, vide G.O.Ms. No. 232, Personnel and Administrative Reforms (FR.IV) Department, dated 7th June, 1996, with effect from 22nd December 1995. According to him, the original Ruling No. 9 was issued, vide G.O.Ms. No. 228, Personnel and Administrative (Personnel-J) Department, dated 13th April, 1989, which came into effect from 19th June, 1987.
In the aforesaid background, we called for and perused the relevant Government Order as was issued, vide G.O.Ms. No. 232, Personnel and Administrative Reforms (F.R.IV) Department, dated 7.6.1996, as also Ruling No. 9 in F.R. No. 54.
9. We have heard learned Counsel appearing for the parties and noticed the contentions. As stated, the relevant Rule and the Government Orders have been noticed.
F.R.54 mainly deals with the situation when a Government servant, who has been dismissed, removed or compulsorily retired, is reinstated on the basis of appeal/review or by an order of a court. It has been prescribed therein as to what salary to be paid on such reinstatement, which is quoted hereunder:
54. (1) When a Government servant, who has been dismissed, removed or compulsorily retired, is reinstated as a result of appeal or review or would have been so reinstated (but for his retirement on superannuation while under suspension or not), 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 his absence from duty including the period of suspension preceding his dismissal, removal, or compulsory retirement, as the case may be; and
(b) whether or not the said period shall be treated as a period spent on duty.
(2) Where the authority competent to order reinstatement is of opinion that the Government servant who had been dismissed, removed or compulsorily retired has been fully exonerated, the Government servant shall, subject to the provisions of Sub-rule (6), be paid the full pay and allowances to which he would have been entitled, had he not been dismissed, removed or compulsorily retired or suspended prior to such dismissal, removal or compulsory retirement, as the case may be:
Provided that where such authority is of opinion that the termination of the proceedings instituted against the Government servant 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, subject to the provisions of Sub-rule (7), be paid for the period of such delay, only such amount (not being the whole), of such pay and allowances as it may determine.
(3) In a case falling under Sub-rule (2) the period of absence from duty including the period of suspension preceding dismissal, removal or compulsory retirement, as the case may be, shall be treated as a period spent on duty for all purposes.
(4) In cases other than those covered by Sub-rule (2) (including cases where the order of dismissal, removal or compulsory retirement from service is set aside by the appellate or reviewing authority solely on the ground of non-compliance with the requirements of Clause (2) of Article 311 of the Constitution and no further inquiry is proposed to be held) the Government servant shall, subject to the provisions of Sub-rules (6) and (7), be paid such amount (not being the whole) of the pay and allowance to which he would have been entitled, had he not been dismissed, removed or compulsorily retired or suspended prior to such dismissal removal or compulsory retirement, as the case may be, 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:
Provided that any payment under this sub-rule to a Government servant shall be restricted to a period of three years immediately preceding the date on which orders for reinstatement of such Government servant are passed by the appellate authority or reviewing authority or immediately preceding the date of retirement on superannuation of such Government servant, as the case may be.
(5) In a case falling under Sub-rule (4), the period of absence from duty including the period of suspension preceding his dismissal, removal or compulsory retirement, as the case may be, shall not be treated as period spent on duty, unless the competent authority specifically directs that it shall be treated for any specified purpose:
Provided that if the Government servant so desires, such authority may direct that the period of absence from duty including the period of suspension preceding his dismissal, removal or compulsory retirement, as the case may be, shall be converted into leave of any kind due and admissible to the Government servant.
Explanation.--The Order of the competent authority under the preceding proviso shall be absolute and no higher sanction shall be necessary for the grant of:
(a) extraordinary leave in excess of six months in the case of non-permanent Government servant; and
(b) leave of any kind in excess of five years in the case of a permanent Government servant or an approved probationer.
(6) The payment of allowances under Sub-rule (2) or Sub-rule (4) shall be subject to all other conditions under which such allowances are admissible.
(7) The amount determined under the proviso to Sub-rule (2) or under Sub-rule (4) shall not be less than the subsistence allowance and other allowances admissible under Rule 53.
(8) Any payment made under this rule to a Government servant on his reinstatement shall be subject to adjustment of the amount, if any, earned by him through an employment during the period between the date of removal, dismissal or compulsory retirement, as the case may be, and the date of reinstatement. Where the emoluments admissible under this rule are equal to or less than the amounts earned during the employment elsewhere, nothing shall be paid to the Government servant.
Rule 54-A relates to reinstatement, if order of dismissal, removal or compulsory retirement is set aside by a court of law.
On the other hand, F.R.54-B relates to determination of pay and allowance during the period of suspension to a Government servant who had been reinstated or would have been so reinstated but for his retirement on superannuation or compulsory retirement, as is evident from the said Rule, relevant portion of which is quoted hereunder:
54-B 1.(1) When a Government servant who has been suspended is reinstated or would have been so reinstated but for his retirement on superannuation *or compulsory 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 on superannuation *or compulsory retirement, as the case may be; and
(b) whether or not the said period shall be treated as a period spent on duty.
(2) * * * * * *(G.O.Ms. No. 282, P&AR(FR-Spl.)Department, dated 12-6-90) (w.e.f. 19th August, 1989).
(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) * * * * * (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.
Explanation:* * * * (8) The payment of allowances under Sub-rule (2), Sub-rule (3) or Sub-rule (5) shall be subject to all other conditions under which such allowances are admissible.
(9) The amount determined under the proviso to Sub-rule (3) or under Sub-rule (5) shall not be less than the subsistence allowance and other allowances admissible under Rule 53.
2. * * * * *
3. In deciding whether any pay and allowances should be granted under Rule 54 or 54-A or 54-B to a Government servant in temporary employ, the period for which the temporary post has been sanctioned should be taken into consideration.
(1) The cases of suspension during pendency of criminal proceedings or proceeding for arrest for debt or during detention under a law providing for preventive detention, shall be dealt with in the following manner hereafter:
(a) A Government servant who is detained in custody under any law providing for preventive detention or as a result of a proceeding either on a criminal charge or for his arrest for debt shall, if the period of detention exceeds 48 hours and unless he is already under suspension, be deemed to be under suspension, from the date of detention until further orders as contemplated in the Tamil Nadu Civil Services (Discipline and Appeal) Rules. A Government servant who is undergoing a sentence of imprisonment shall also be dealt with in the same manner pending a decision on the disciplinary action to be taken against him;
(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 the Tamil Nadu Civil Services (Discipline and Appeal) Rules. 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;
(c) A Government servant against whom a proceeding has been taken for his arrest for debt but who is not actually detained in custody may be placed under suspension by an order under the Tamil Nadu Civil Services (Discipline and Appeal) Rules, i.e. only if a disciplinary proceeding against him is contemplated.
(d) When a Government servant who is deemed to be under suspension in the circumstances mentioned in Clause (a) or who is suspended in the circumstances mentioned in Clause (b) is reinstated without taking disciplinary proceedings against him, his pay and allowance for the period of suspension will be regularised under Rule 54/54-B, i.e., in the event of his being acquitted of blame or if the proceeding taken against him was for his arrest for debt or its being proved that his liability arose from circumstance beyond his control or the detention being held by any competent authority to be wholly unjustified, the case may be dealt with under Rule 54(2)/54-B(3); otherwise it may be dealt with under Rule 54(4)/54-B(5).
* * * * * * (G.O.Ms. No. 302, Personnel and Administrative Reforms (F.R.III) department, dated 4th April, 1983)--with effect from 4th April, 1983.
10. From G.O.Ms. No. 544, Personnel and Administrative Reforms (F.R.III) Department, dated 19.6.1987, it appears that the State Government clarified F.R.54 and it was ordered to make necessary amendment to the F.Rs., as is evident from the aforesaid G.O. and quoted hereunder:
GOVERNMENT OF TAMIL NADU ABSTRACT Fundamental Rules - Rule 54 - Regularising the period of dismissal, removal, compulsory retirement or suspension consequent on Court acquittal - Orders - Issued.
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PERSONNEL AND ADMINISTRATIVE REFORMS (F.R.III) DEPARTMENT
G.O. MS. No. 544 Dated 19.6.1987
(Aani 5, Prabava,
Thiruvalluvar Aandu 2018)
Read.
1. G.O. Ms. No. 302, Personnel and Administrative Reforms (F.R.III) Department, Dated 4.4.83.
2. G.O. Ms. No. 303, Personnel and Administrative Reforms (F.R.III) Department, Dated 4.4.83.
ORDER:
In the G.Os. read above, orders have been issued recasting Fundamental Rule 54 and the Rulings thereunder.
2. A point has been raised as to how the period of absence of a Government servant under suspension, dismissal, removal or compulsory retirement consequent on the facing of criminal action, on his reinstatement into service after acquittal by the Court, should be regulated.
3. The Government after careful examination, direct that, where a Government servant is:
a) Placed under suspension in view of the fact that a complaint against him of any criminal offence is under investigation or trial; or
b) dismissed or removed from service or compulsorily retired on the ground of conduct which has led to his conviction on a criminal charge.
and the Government servant is subsequently reinstated in service on his acquittal by the Court either on merits or on the ground that the charge has not been proved against him or by giving benefit of doubt or on any other technical ground, he must be regarded as having been prevented from discharging his duties and the period of his absence including the period of suspension shall be treated as duty for all purposes and he shall be paid full pay and allowances which he would have been entitled to, had he not been under suspension, or dismissed or removed or compulsorily retired from service.
4. Amendment to Fundamental Rules will be issued separately.
(By Order of the Governor) Sd. J. Anjani Dayanand Special Commissioner and Secretary to Government.
It further appears that subsequently another G.O. in G.O.Ms. No. 386, Personnel and Administrative Reforms (F.R.III) Department, was issued on 22.12.1995, which related to regulating the period of suspension of a Government servant who has turned an approver in a criminal case. The said G.O. is not applicable in the present case, the petitioner having not turned an approver in a criminal case.
11. So far as G.O.Ms. No. 232, Personnel and Administrative Reforms (F.R.IV) Department, dated 7.6.1996 is concerned, it does not amount to amendment of F.R.54, but amendment of Ruling 9 of F.R.54, as is evident from the said order and quoted hereunder:
GOVERNMENT OF TAMIL NADU ABSTRACT Fundamental Rules - Rules - Rule 54 - Regularising the period of suspension, dismissal, removal, compulsory retirement of Government servants who turns approver based on their judicial confession - Amendment - Issued.
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PERSONNEL AND ADMINISTRATIVE REFORMS (F.R.IV) DEPARTMENT.
G.O.Ms. No. 232 Dt. 7.6.1996. Read:
1. G.O.Ms. No. 386, Personnel and Administrative Reforms (F.R.II) Department, Dt. 22.12.1995.
2. From the Accountant General (Audit-I) Madras-35, Letter No. AG(A)I/CC/II/1-6/96-97/15, dated 23.5.1996.
----
ORDER:
The following amendment is issued to the rulings under Fundamental Rules:
The amendment hereby made shall be deemed to have come into force on the 22nd December 1995.
AMENDMENT In the said Fundamental Rules, in Rule 54, in Ruling 9, after the word "technical ground" the following expression shall be inserted, namely:
or on the ground that he has been pardoned by the Court as he turned approver based on his Judicial confession.
(BY ORDER OF THE GOVERNOR) Sd/- C.K. SUNDARAVARATHAN, JOINT SECRTARY TO GOVERNMENT.
12. From the Fundamental Rules, it would be evident that the said Rules originally came into force with effect from 1st January, 1922 (pre-Independence Period), but it now having taken a shape of a statutory Rule, so far as Rulings are concerned, they are mainly explanation of a particular Fundamental Rule and cannot over-ride or supersede the statutory Fundamental Rules. Therefore, if there is any conflict between any Ruling of the Government and the Fundamental Rules, the Fundamental Rules will prevail over the Ruling of the Government, being merely an explanation of the Rule.
13. As noticed above, F.R.54 deals with reinstatement of an employee, who was earlier dismissed, removed or compulsorily retired from service. It is different from F.R.54-B which relates to reinstatement of an employee from suspension, who was not removed or dismissed or compulsorily retired from service. That is, the employee remains in the service but placed under suspension and on revocation of the order of suspension, he is merely reinstated.
14. In view of the discussion above, we hold that the case of the petitioner will be governed by Clause 1(3) read with Clause 3(1)(d) of FR 54-B and not under Rule 54 or Ruling 9 made thereunder.
15. So far as the period of suspension is concerned, under Clause 1(3) and Clause 3(1)(d) of FR 54-B, the determination of the question whether the petitioner is entitled for full salary for the period of suspension and how the period of suspension to be accounted, i.e., 'on duty' or 'on leave', it is to be noticed whether his suspension was wholly justified or not.
In the present case, the disciplinary authority, i.e., the Principal District Judge, Tirunelveli, has considered the aforesaid question and noticed the relevant fact. The petitioner having taken into custody pursuant to a criminal case, the suspension was justified by learned Principal District Judge, Tirunelveli. She also noticed that the petitioner challenged the criminal proceeding at different stages, number of times, due to which trial delayed. In that view of the matter, if the disciplinary authority held that the order of suspension was wholly justified, it cannot be held to be illegal.
However, in view of the provisions as referred to above, i.e., Clause 1.3 and Clause 3(1)(d) of FR 54-B, we feel that part of the impugned order in A. No. 743/99, dated 7.10.1999, D. No. 12256/99, dated 28.10.1999 requires modification.
16. The petitioner was arrested and taken into custody on 8th April, 1997 and remained in custody till 22nd April, 1997. Under the law, he was deemed to be under suspension with effect from 8th April, 1997; he having granted bail by the court followed by acquittal in the criminal proceeding, no disciplinary proceeding having initiated against him, the period of suspension has to be regularised as per Clause 3(1)(d) of FR 54-B and, therefore, he cannot be treated to be 'on leave' or 'extra-ordinary leave'. The said period has to be treated to be 'on duty' for all other purposes.
Similar is the case so far as it relates to the period from 19th April, 1997 till the petitioner was acquitted vide judgment dated 21st Dec., 1998. Under the same provision, as referred to above, the said period is also to be treated 'on duty', though it will be open to the authority to disallow full salary on the ground that the order of suspension was justified.
So far as the period from 21st Dec., 1998 till 10th Oct., 1999 is concerned, i.e., the date prior to joining of petitioner, the petitioner cannot be treated to be under suspension, the criminal case having come to an end on 21st Dec., 1998. The said period has not only to be treated as 'on duty', but the authorities are also liable to pay full salary for the said period, i.e., from 21st Dec., 1998 to 10th Oct., 1999. Further, there being no laches on the part of the petitioner, after the judgment of the court dated 21st Dec., 1998, if the disciplinary authority revoked the order of suspension after about 10 months, i.e., by order dated 7th Oct., 1999, the respondents cannot take advantage of their own laches to deny the benefit of salary of the said period to the petitioner.
17. In the circumstances, while we hold that the whole period during which the petitioner was deemed to be under suspension and/or was placed under suspension, i.e., 8th April, 1997 to 11th Oct., 1999, to be treated as 'on duty' for all purposes, he will not be entitled for salary for the period from 8th April, 1997 to 20th Dec., 1998, the order of suspension of the said period being justified. However, he would be entitled for salary of the period from 21st Dec., 1998 to 10th Oct., 1999, as observed above, the period of suspension after the judgment being wholly unjustified.
18. Further, the petitioner having acquitted in the criminal case and as no departmental proceeding was initiated and, thereby, no order of punishment was imposed, the authority cannot withhold the increment of the period to which the petitioner is notionally entitled to or otherwise it will amount to withholdment of increment without any disciplinary enquiry, which is not permissible. Therefore, the last part of the impugned order so far as it relates to increment is concerned cannot be upheld. The petitioner will be entitled to count the said period for all purposes, including increment, for calculation of pay and salary to the extent indicated above.
19. We, accordingly, modify the last portion of the impugned order in A. No. 743/99, dated 7.10.1999, D. No. 12256/99, dated 28.10.1999, passed by the learned Principal District Judge, Tirunelveli, and direct the respondents to treat the period in the manner as ordered above and pay the arrears of salary as per our order, after adjustment of subsistence allowance, if any, paid during the period from 21st Dec., 1998 to 10th Oct., 1999, within a period of two months from the date of receipt/production of a copy of this order, failing which the respondents will be liable to pay interest at the rate of 5% from the date of judgment passed by the trial court (21st Dec., 1998) till the amount is paid. The writ petition stands disposed of with the aforesaid observations and directions. There shall be no order as to costs.