Central Administrative Tribunal - Allahabad
Sanjay Kumar Rastogi vs Union Of India on 4 February, 2011
Reserved
CENTRAL ADMINISTRATIVE TRIBUNAL,
ALLAHABAD BENCH ALLAHABAD
Dated: This the 04th day of February, 2011
Original Application No. 1509 of 2005
(U/S 19, Administrative Tribunal Act, 1985)
Honble Dr. K.B.S. Rajan, Member (J)
Honble Mr. S.N. Shukla, Member (A)
Sanjay Kumar Rastogi, S/o Sri Ram Autar Rastogi, Working as Tailer/ SK.T. No.213740/ 5765 Ordinance Clothing Factory, Shahjahanpur.
.. Applicant
By Adv. : Shri R.K. Pandey
V E R S U S
1. Union of India, through the Secretary Ministry of Defence, New Delhi.
2. General Manager, Clothing Factory,Shahjanpur.
3. Additional Director General, Ordinance Factories, Group Head Quarter, Ayudh Upashar Bhawan, G.T. Road, Kanpur.
.... Respondents
By Adv. : Shri Ajay Singh
O R D E R
(Delivered by Honble Dr. K.B.S. Rajan, Member-Judicial) This case raises a vital legal issue. When an individual involved in a criminal case is acquitted on the ground that all the witnesses have turned hostile and that the prosecution did not want to examine further witnesses, whether the individual who was kept under suspension on account of the trial and whose suspension had been revoked by the Competent Authority is entitled to full pay and allowances for the period of suspension and to have he period of suspension treated as duty for any purpose.
2. Shorn of the details of the case not so proximate with the above issue, the facts of the case will be culled out as succinctly brought out by the applicant in his written arguments and the same are as under:-
(a) While working as tailor with respondent no.2 the applicant was arrested on 9.5.1995 in criminal case No.53/95 Under Section 304-B, 498-A I.P.C and was released on bail on 15.1.1996 therefore by order dated 5.2.1996 passed by the respondent no.2 he was placed under deemed suspension w.e.f. 9.5.1995 to 15.1.1996 and w.e.f. 16.1.1996 under continued suspension (Annexure No.A-III). During trial the respondent no.2 exercising power under Rules 10(5) (c)of CCS (CCA) Rules, 1965 revoked the said suspension by his order dated 5.2.2001 Annexure A-V and he was reinstated in service.
(b) On 7.4.2004 the learned Addl. District & Sessions Judge (F.T.C.-4) Shahjahanpur after considering the facts and circumstances as well evidence adduced acquitted the applicant along with others (Annexure A-IV). Holding that the prosecution witnesses so examined turned hostile and the informant declined to get examine any further witness. Therefore the prosecution failed to prove his case and the accused are liable to be acquitted from the criminal charges.
(c) While regularizing the period of suspension the respondent no.2 issued show cause notice dated 13.9.2004 proposing that Applicant shall not be paid more pay and allowances than that he had already paid during suspension period and aforesaid suspension period shall neither be treated as spent on duty nor for leave and increments etc and will not constitute break in service.
(d) On 5.10.2004 the applicant submitted reply assailing that the view taken by the respondent no.2 is arbitrary inasmuch as the applicant has been acquitted on failure of prosecution to prove his case against the applicant as such it cannot be termed as technical acquittal, but by order dated 14.12.2004 (Annexure A-I) the respondent No.2 has denied the claim. Being aggrieved the applicant filed appeal on 31.1.2005, which has also been rejected on 22.6.2005 by respondent no.3 (Annexure A-II) hence the present original application before this Honble Court.
3. Equally brief and crest is the contention of the respondents and the same is as under:-
(a) It is stated that the claim of applicant for regularization of the period of suspension was considered by the respondent no.2 & 3. At the time of deciding his claim, the representation dated 5.10.2004 submitted by the applicant in response to show cause notice was considered and it was observed that there being no positive findings in the judgment regarding innocence of the accused. The applicant was acquitted on technical grounds as the prosecution witnesses have turned hostile and filed to establish the charge against the accused persons, that is why they have been acquitted, as such the representations merit no further consideration and accordingly the period of suspension from 9.5.1995 to 5.2.2001 was regularized as a period spent not on duty nor for leave and increment etc and will also not constitute break in service. The appellate authority while deciding the appeal also considered all the points raised by applicant and found no good and sufficient grounds for interfering in the order dated 14.12.2004 of the disciplinary authority and rejected the appeal.
(b) It is further submitted that the order dated 14.12.2004 passed by the respondent no.2 regarding regularization of period of suspension from 9,5,1995 to 5.2.2001 and order dated 22.6.2005 passed by the respondent no.3, rejecting the appeal are legally in order in terms of discretionary powers conferred upon the disciplinary authority under Rule 54 B of FR 193 CSR, and power conferred upon the appellate authority under Rule 27 of CCS (CCA) Rules, 1965.
(c) It is also pertinent to mention here that the applicants acquittal is on technical grounds only and not on merit as the witnesses have turned hostile and prosecution has entirely failed to prove the case, as such, in terms of discretionary powers conferred upon the disciplinary authority under provisions of Suspension in respect of the applicant has been regularized as a period spent not on duty.
4. Written arguments have been scanned along with the pleadings. The Trial court has ultimately acquitted the applicant stating as under vide Annexure A-4 of the O.A. bl izdkj vfHk;kstu i{k dh vksj ls ijhf{kr djk;s x;s lHkh lk{khx.k innzksgh ?kksfkr gks x;s gSA vU; xokgksa dks oknh ds }kjk U;k;ky; esa ;g fy[kdj ns fn;k x;k gS fd og vU; xokgksa dks ijhf{kr ugha djkuk pkgrk gSA bl izdkj vfHk;kstu i{k vius ekeys dks ?kksfkr djus esa iw.kZr;k vlQy jgk gS vkSj ifj.kke Lo:Ik vfHk;qDrx.k yxk;s x;sa n.Muh; vijk/k ds vkjksi ls nksk eqDr gksus ;ksX; gSA vknsk vfHk;qDrx.k jktw] lat;] fot; dqekj] kfkckyk ,oa lhek dks Hkk0n0la0 dh /kkjk 498, ,oa 3@4 ch ngst izfrks/k vf/kfu;e ds vUrxZr yxk;s x;s n.Muh; vijk/k ds vkjksi ls eqDr fd;k tkrk gSA vfHk;qDrx.k tekur ij gS muds O;fDrxr ca/k i= fujLr fd;s tkrs gS ,oa izfrHkwx.kksa dks muds nkf;Ro ls mUeksfpr fd;k tkrk gSA^^
5. The argument on behalf of the applicant is that the applicant has been acquitted and acquittal means free of blame and hence he is entitled to the benefit of the provisions of FR 54 B and full pay and allowance is admissible in his case.
6. On the other hand, the argument of the respondents is that there being no positive finding in the judgment regarding innocence of the accused and the applicant was acquitted on technical grounds as the prosecution witnesses have turned hostile and failed to establish the charge against the applicant, as such the period of suspension from 09-051005 to 05-02-21 was regularized as a period spent not on duty nor for leave and increment etc., and would also not constitute break in service.
7. The question is whether the applicant is entitled to any relief as prayed for.
8. Rule 54 B reads as under:-
"(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 to which he would have been entitled had 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 finalization 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 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 that such authority may order that the period of suspension shall be converted into leave of any kind due and admissible to the Government servant.
Note- 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 three months in the case of temporary Government servant; and
(b) leave of any kind in excess of five years in the case of permanent or quasi-permanent Government servant.
(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."
9. It can be seen that as per F.R.54-B(3) the Government servant is entitled to be paid the full pay and allowances to which he would have been entitled had he not been suspended, only when the authority competent to order reinstatement is of the opinion that the suspension was wholly unjustified. In that event the period of suspension shall be treated as period spent on duty for all purposes, as provided in F.R.54-B(4). As per F.R.54-B(5) in a case 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 to had he not been suspended, as the competent authority may determine. As per F.R.54-B(7), in a case falling under Sub-rule (5), the period of suspension shall not be treated as period spent on duty unless the competent authority specifically directs that it shall be so treated for any specific purpose.
10. The question is whether the competent authority is right in coming to a conclusion that the suspension is wholly justified so as to deprive the applicant of his full pay and allowance for the period the applicant was under suspension. The competent authority views the acquittal as 'technical' and not honourable acquittal.
11. The Apex Court has had occasion to observe in this regard as under:-
12. Rule 54 provides for full pay in case of honourable acquittal. This means that the government servant has been fully exonerated. When the trial was set aside on account of defect but retrial was not ordered on account of pendency of the case for 14 years and other circumstances of the case, then this does not amount to honourable acquittal and clause (b) of Rule 54 is applicable. If in such circumstances, the Government allowed part of the pay and allowances then the order is valid. State of Assam vs Raghava Rajgopalachari (1972) 7 SLR 44.
13. An acquittal is not said to be 'honourable acquittal' if the acquittal is on the basis of benefit of doubt. When the charges have been held not proved beyond reasonable doubt, the character acquittal cannot be held to be one of benefit of doubt as it is certainly an honourable acquittal. See G.M. Tank v. State of Gujarat,(2006) 5 SCC 446, wherein the Apex Court has held:
7. The Special Judge had honorably acquitted the appellant of the offence punishable under Section 5(1)(e) read with Section 5(2) of the Act by holding that the prosecution has failed to prove the charges levelled against the appellant and thus the appellant cannot be held to be guilty of the said offence.
14. In Krishnakali Tea Estate vs Akhil Bharatiya chan Mazdoor Sangh (2004) 8 SCC 200, the Apex Court has held as under:-
We have been taken through the said judgment of the criminal court and we must record that there was such honourable acquittal by the criminal court. The acquittal by the criminal court was based on the fact that the prosecution did not produce sufficient material to establish its charge .....
15. Referring to the above decision in Manager, Reserve Bank of India v. S. Mani,(2005) 5 SCC 100, the Apex Court has held as under:
13. Recently in Krishnakali Tea Estate v. Akhil Bharatiya Chah Mazdoor Sangh one of us, Santosh Hegde, J., speaking for a three-Judge Bench observed:
25. The next contention addressed on behalf of the respondents is that the Labour Court ought not to have brushed aside the finding of the criminal court which according to the learned Single Judge honourably acquitted the accused workmen of the offence before it. We have been taken through the said judgment of the criminal court and we must record that there was such honourable acquittal by the criminal court. The acquittal by the criminal court was based on the fact that the prosecution did not produce sufficient material to establish its charge which is clear from the following observations found in the judgment of the criminal court:
16. In the instant case, the decision of the Trial Court as extracted above is that the witnesses have turned hostile. The Trial Court also observed that the State did not want to examine any other witness. In the final decision, there is no word that the applicant has been acquitted on the basis of 'benefit of doubt'. Thus, the acquittal is honourable.
17. The contention of the respondents is that the Court has not rendered any 'positive findings in the judgment regarding innocence of the accused.' It has been held in the case of Arulvelu v. State,(2009) 10 SCC 206
34. In Ghurey Lal v. State of U.P.30 a two-Judge Bench of this Court of which one of us (Bhandari, J.) was a member had an occasion to deal with most of the cases referred to in this judgment. This Court provided guidelines for the appellate court in dealing with the cases in which the trial courts have acquitted the accused. The following principles emerge from the cases above:
1. The accused is presumed to be innocent until proven guilty. The accused possessed this presumption when he was before the trial court. The trial courts acquittal bolsters the presumption that he is innocent.
18. In a case of dowry death, there is a statutory presumption and when that presumption could be construed has been explained in the case of Hem Chand v. State of Haryana, (1994) 6 SCC 727 : wherein the Apex court has held as under:-
A reading of Section 304-B IPC would show that when a question arises whether a person has committed the offence of dowry death of a woman what all that is necessary is it should be shown that soon before her unnatural death, which took place within seven years of the marriage, the deceased had been subjected, by such person, to cruelty or harassment for or in connection with demand for dowry. If that is shown then the court shall presume that such a person has caused the dowry death. It can therefore be seen that irrespective of the fact whether such person is directly responsible for the death of the deceased or not by virtue of the presumption, he is deemed to have committed the dowry death if there were such cruelty or harassment and that if the unnatural death has occurred within seven years from the date of marriage. Likewise there is a presumption under Section 113-B of the Evidence Act as to the dowry death. It lays down that the court shall presume that the person who has subjected the deceased wife to cruelty before her death caused the dowry death if it is shown that before her death, such woman had been subjected, by the accused, to cruelty or harassment in connection with any demand for dowry. Practically this is the presumption that has been incorporated in Section 304-B IPC also. It can therefore be seen that irrespective of the fact whether the accused has any direct connection with the death or not, he shall be presumed to have committed the dowry death provided the other requirements mentioned above are satisfied. (Emphasis supplied)
19. In the instant case, the condition precedent for such presumption is not available. The Prosecution did not prove the case. Thus, there is nothing required to show any 'positive finding' in favour of the applicant. It is worth referring to the following decisions in regard to the onus of proving the offence:-
(a) P. Mani v. State of T.N.,(2006) 3 SCC 161, at page 165 :
In a criminal case, it was for the prosecution to prove the involvement of an accused beyond all reasonable doubt.
(b) Ujjagar Singh v. State of Punjab,(2007) 13 SCC 90, at page 100 :
It is true that it is generally for the prosecution to prove its case beyond doubt but in circumstances such as the present one, some explanation is also due from an accused in order to absolve himself from suspicion of the crime
(c) Behram Khurshid Pesikaka v. State of Bombay,(1955) 1 SCR 613, 629 When an accused person is charged with having committed an offence it is for the prosecution to prove all the ingredients of the offence with which he has been charged
(d) Bhikari v. State of U.P.,(1965) 3 SCR 194 Undoubtedly it is for the prosecution to prove beyond reasonable doubt that the accused had committed the offence with the requisite mens rea.
20. From the above decisions and the facts of the case it could be safely held that the respondents have misunderstood the legal position that there must be a positive finding by the Criminal court about the innocence of the applicant in which event only the suspension could be treated as totally unjustified. In the instant case, the applicant was released on bail in February, 1996 itself. As such from that day he was available for performing the duties, if so permitted by the respondents. Had been under custody for the full period of six years of suspension, there could be a justification to hold that the applicant was not available to perform duties.
21. We do not for a moment doubt the absolute discretion left with the competent authority. That discretion, should, in our opinion be rational and judicious. When the discretion is found to be not fulfilling with the requirement judiciousness, judicial interference is well justified. We take support in this regard of the dictum of the Apex court in the case of Clariant International Ltd. v. Securities & Exchange Board of India,(2004) 8 SCC 524, wherein it has been held as under:-
26. The Board, further, having a discretionary jurisdiction must exercise the same strictly in accordance with law and judiciously. Such discretion must be a sound exercise in law. The discretionary jurisdiction, it is well known, although may be of wide amplitude as the expression as it deems fit has been used but in view of the fact that civil consequences would ensue by reason thereof, the same must be exercised fairly and bona fide. The discretion so exercised is subject to appeal as also judicial review, and, thus, must also answer the test of reasonableness.
27. In Kruger v. Commonwealth of Australia is stated:
Moreover, when a discretionary power is statutorily conferred on a repository, the power must be exercised reasonably, for the legislature is taken to intend that the discretion be so exercised. Reasonableness can be determined only by reference to the community standards at the time of the exercise of the discretion and that must be taken to be the legislative intention....
28. The discretionary jurisdiction has to be exercised keeping in view the purpose for which it is conferred, the object sought to be achieved and the reasons for granting such wide discretion. (See Narendra Singh v. Chhotey Singh
29. A discretionary jurisdiction, furthermore, must be exercised within the four corners of the statute. [See Akshaibar Lal (Dr.) v. Vice-Chancellor, Banaras Hindu University and also para 9-022 of de Smith, Woolf and Jowell: Judicial Review of Administrative Action, 5th Edn., p. 445.
22. In view of the above, the decision of the respondents cannot be held to be legally valid and justified. The order dated 14-12-2004 and 22-06-2005 passed by respondents No. 2 and 3 are hereby quashed and set aside. It is declared that the applicant is entitled to have the period of suspension treated as of duty for all purposes, such as full pay and allowances, drawal of increments and as qualifying services.
23. The OA thus, fully succeeds. Respondents are directed to pass suitable orders in this regard within a period of four months and also pay the arrears of pay and allowances to the applicants within two months thereafter.
24. Under the circumstances, there shall be no orders as to cost.
(S.N. Shukla) (Dr. K.B.S. Rajan)
Member-A Member-J
Sushil
??
??
??
??
15