Gujarat High Court
Upendra R. Shah vs State Of Gujarat & 2 on 16 April, 2015
Author: Abhilasha Kumari
Bench: Abhilasha Kumari
C/SCA/3602/2007 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 3602 of 2007
FOR APPROVAL AND SIGNATURE:
HONOURABLE SMT. JUSTICE ABHILASHA KUMARI
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1 Whether Reporters of Local Papers may be allowed Yes
to see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy of No
the judgment ?
4 Whether this case involves a substantial question of No
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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UPENDRA R. SHAH....Petitioner(s)
Versus
STATE OF GUJARAT & 2....Respondent(s)
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Appearance:
MR SHAKTI S JADEJA, ADVOCATE FOR MR SP MAJMUDAR, ADVOCATE for the
Petitioner
MR DM DEVNANI, ASSISTANT GOVERNMENT PLEADER for the Respondents
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CORAM: HONOURABLE SMT. JUSTICE ABHILASHA
KUMARI
Date : 15/04/2015 &
16/04/2015
ORAL JUDGMENT
1. The challenge in this petition preferred under Article 226 of the Constitution of India, is Page 1 of 65 C/SCA/3602/2007 JUDGMENT twofold. The first challenge is made to the order dated 18.11.2005, passed by the Disciplinary Authority, whereby the penalty of reduction of one increment in the pay being drawn by the petitioner in the payscale of Rs.55001759000, for one year, with future effect, has been imposed pursuant to departmental proceedings initiated against him. The second order impugned in the petition is dated 20.01.2007, passed by respondent No.3, whereby the request of the petitioner to regularize the period of suspension with effect from 04.10.2001 to 27.12.2005, has been rejected.
2. Briefly stated, the relevant facts of the case as emerging from the record are that, the petitioner was working as a Senior Clerk under respondent No.2, Deputy Commissioner of Sales Tax, Bhavnagar. During the course of his service, the petitioner was placed under suspension by an order dated 04.10.2001, passed by respondent No.3. Thereafter, the petitioner was served a chargesheet dated 22.04.2003. The Page 2 of 65 C/SCA/3602/2007 JUDGMENT single charge against the petitioner was that the petitioner did not deposit an amount of Rs.1,16,255/ towards telephone bills, for a considerably long period of time after the said amount was withdrawn by him for this purpose. Thus, the allegation against the petitioner is that he committed temporary misappropriation of money from the public exchequer and committed misconduct as per Rule 3(1)(i) and (ii) of the Gujarat Civil Services (Conduct) Rules, 1971 ("the Rules, 1971" for short). The petitioner submitted his reply to the chargesheet on 25.07.2003, denying the charge against him on the ground that, as he had paid the amount of the bills, though belatedly, it cannot be said that he has committed any misconduct. The departmental proceedings commenced after the appointment of an Inquiry Officer. Before the Inquiry Officer, the petitioner submitted a written statement of defence dated 29.12.2003, wherein he took the defence that his wife was ill during the relevant period of time, therefore, he was under mental tension, which Page 3 of 65 C/SCA/3602/2007 JUDGMENT affected his memory, resulting in the delayed payment of the telephone bills. The Inquiry Officer submitted his Report dated 05.01.2004, finding that the charge against the petitioner stood proved.
3. It may be noted that simultaneously, criminal proceedings had also been initiated against the petitioner. By a judgment dated 23.04.2004, the learned Judicial Magistrate, First Class, acquitted the petitioner of the charges under Section 409 of the Indian Penal Code, holding that none of the charges against the petitioner were proved. The appeal of the State Government against the judgment of acquittal was also dismissed.
4. After the judgment of the criminal Court was delivered, the petitioner vide an application dated 18.05.2004, to respondent No.1 (Disciplinary Authority), submitting that as he had been acquitted in the criminal case, the departmental proceedings against him may be dropped. After considering the defence of the Page 4 of 65 C/SCA/3602/2007 JUDGMENT petitioner, the Disciplinary Authority passed the impugned order dated 18.11.2005, imposing the penalty described hereinabove.
5. The second limb of challenge by the petitioner is the order dated 20.01.2007, passed by respondent No.3, which arose from the application dated 29.05.2006, of the petitioner, for the regularization of his suspension period. Pursuant thereto, a show cause notice dated 22.11.2006 was issued to the petitioner by respondent No.3, as to why the period of suspension should not remain as it is. The petitioner replied to the show cause notice on 09.01.2007, claiming that, as he had been acquitted by the criminal Court, the period of suspension ought to be regularized. By the impugned order dated 20.01.2007, respondent No.3 rejected the request of the petitioner in this regard. Aggrieved by the abovementioned two orders, the petitioner is before this Court.
6. Mr.Shakti S.Jadeja, learned advocate for Mr.S.P.Majmudar, learned advocate for the Page 5 of 65 C/SCA/3602/2007 JUDGMENT petitioner, submits that the petitioner has been given a clean acquittal by the competent criminal Court and not the benefit of doubt. The criminal case against the petitioner arises from the same incident, same set of facts and the same allegations as that in the departmental inquiry. After considering the evidence before it, the criminal Court came to the conclusion that it was not the petitioner's duty to pay the bills. The respondentDepartment had not produced the duty list before the criminal Court and had thus failed to establish that the petitioner has committed temporary misappropriation of the amount, or that there was delay in the payment of bills to the Telephone Department. It is further submitted that the criminal Court has further concluded that it cannot be said there was any delay in the payment of bills, as the telephone connection was not cut off. Once the criminal Court has ruled that the case against the petitioner could not be established by the respondents and the petitioner was acquitted, Page 6 of 65 C/SCA/3602/2007 JUDGMENT the departmental inquiry on the same set of facts and evidence could not have proceeded and no penalty could have been inflicted upon the petitioner, leave alone a major penalty.
7. In support of the above submission, reliance has been placed upon the following judgments:
(i) G.M.Tank v. State of Gujarat - (2006)5 SCC 446
(ii) Capt. M.Paul Anthony v. Bharat Gold Mines Ltd. (1999)3 SCC 679
(iii) Roop Singh Negi v. Punjab National Bank - (2009)2 SCC 570
(iv) Management, Pandiyan Roadways Corp. Ltd. v. N.Balakrishnan - (2007)9 SCC 755
8. It is next submitted that the Inquiry Officer has held the petitioner guilty only on the ground of the alleged confession made by him regarding the temporary misappropriation, but has not referred to any evidence against the petitioner or given a single reason for arriving at such a finding. The Disciplinary Authority has also not given any reason in support of the Page 7 of 65 C/SCA/3602/2007 JUDGMENT impugned order of penalty and has failed to give sufficient weightage to the judgment of acquittal passed by the criminal Court. The order of the Disciplinary Authority is based on presumptions and doubt regarding the integrity of the petitioner, without there being any evidence to this effect, therefore, under such circumstances, no major penalty could have been imposed upon the petitioner.
9. In support of his submission regarding lack of reasons, learned advocate for the petitioner has relied upon a judgment in the case of Jagdish Singh v. Punjab Engineering College and Ors. AIR 2009 SC 2458.
10. In support of the submission that a major penalty ought not to have been imposed, reliance is placed upon the judgment in the case of M.P.State Agro Industries Development Corporation and Anr. v. Jahan Khan - AIR 2007 SC 3153.
11. It is further submitted that temporary Page 8 of 65 C/SCA/3602/2007 JUDGMENT misappropriation of Government money is not an offence of corruption. The petitioner had ultimately deposited the money towards the telephone bills, though belatedly. Hence, as no financial loss has occurred to the respondent department, a major penalty could not have been imposed.
12. In support of the above submission, reliance has been upon a judgment of the Supreme Court in N.K. Illiyas v. State of Kerala - AIR 2012 SC 3790.
13. It is next submitted that the alleged admission of the petitioner before the Inquiry Officer would not come in his way, as he was not in a fit state of mind, due to the illness of his wife. As soon as his wife recovered, the petitioner paid the amount of the bills. Looking to the nature of the allegations, they do not warrant a major penalty. The penalty is disproportionate to the alleged misconduct, therefore, it ought to be set aside or, in the alternative, be reduced.
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14. On this point, reliance has been placed upon a judgment of the Supreme Court in Jagdish Singh v. Punjab Engineering College and Ors. (supra).
15. Regarding the regularization of the suspension period, the learned advocate for the petitioner has submitted that as the criminal Court has acquitted the petitioner of the criminal charges, the period of suspension ought to have been regularized. In any case, the order of the regularization of the suspension period ought to have been passed at the time when the suspension of the petitioner was revoked, as per Rule 70 of the Gujarat Civil Services (Joining Time, Foreign Service, Deputation out of India, Payment during Suspension, Dismissal and Removal) Rules, 2002 (hereinafter referred to as "the Rules, 2002"). The suspension of the petitioner was revoked on 27.12.2005, whereas the impugned order rejecting the petitioner's request for regularization of the suspension period was passed on 20.01.2007, and that too, after the petitioner made an application in this regard.
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16. In support of the above submission, reliance has been placed upon a judgment of the Division bench of this Court in Sadevant Manilal Brahmbhatt v. State of Gujarat - 2014 JX (Guj.) 387.
17. On the above grounds, it is prayed that the petition be allowed.
18. The petition has been strongly opposed by Mr.D.M.Devnani, learned Assistant Government Pleader, by submitting that the reliance placed by the petitioner upon the judgment of the criminal Court would not help his case, inasmuch as it is a settled position of law that criminal proceedings and departmental proceedings can go on side by side. An acquittal in a criminal case does not mean that the petitioner ought to be absolved automatically in the departmental inquiry, or that the departmental inquiry against him ought to be dropped. It is further submitted that the criminal Court has acquitted the petitioner as sufficient evidence was not found against him, which does not mean that he Page 11 of 65 C/SCA/3602/2007 JUDGMENT has been honourably acquitted.
19. It is further submitted by the learned Assistant Government Pleader, that in his defence before the Inquiry Officer, the petitioner has categorically admitted the temporary misappropriation and has stated that he could not pay the telephone bills as he was not in a proper mental frame of mind due to the illness of his wife. He has admitted that the bills were paid after a considerably long period of time. In the present case, there is an admission on the part of the petitioner, which is not so in the criminal case. The departmental proceedings, therefore, cannot be compared with the criminal case, where the standard of proof is different.
20. It is next submitted that the petitioner has raised the bills in the treasury to pay the telephone bills and has drawn the amount. It is only when the superior officer of the petitioner received a notice from the Accounts Officer of the Telecom Department stating that the telephone bills were not paid, that he started Page 12 of 65 C/SCA/3602/2007 JUDGMENT an inquiry. Only thereafter did the petitioner pay the amount of the bills. The petitioner has now come out with an explanation regarding his wife's illness, which appears to be an afterthought. Therefore, the penalty of reduction of one increment in the pay drawn by the petitioner for one year, with future effect, is just and proper.
21. It is next contended that, it is not the case of the petitioner that there is any lacuna of flaw in the departmental proceedings. The petitioner is mainly relying upon the judgment of acquittal by the criminal Court. If there is no flaw or lacuna in the departmental proceedings, the scope of interference by this Court would be very limited.
22. In support of the above submission, reliance is placed by the learned Assistant Government Pleader upon the following judgments:
(i) State of Rajasthan v. Sujata
Malhotra - (2003)9 SCC 286
(ii) Union of India v. Chandra Mouli -
(2003)10 SCC 196
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23. It is next submitted that the scope of a criminal proceeding and departmental inquiry are totally different and both proceedings require a different standard of proof. Acquittal in a criminal case cannot be equated with the penalty in departmental proceedings.
24. In support of the above submission, reliance is placed upon the judgment of Supreme Court in Depot Manager, A.P.State Road Transport Corporation v. Mohd. Yousuf Miya And Others - (1997)2 SCC 699.
25. Regarding the refusal of the competent authority to regularize the period of suspension, the learned Assistant Government Pleader has submitted that it is in the discretion of the said authority whether to regularize the suspension period, or not, as per Rule 70 of the Rules, 2002. In the present case, there is no illegality in the decision of the respondents in not regularizing the suspension period.
26. It is further submitted that, the fact that the petitioner has been acquitted in the criminal Page 14 of 65 C/SCA/3602/2007 JUDGMENT case does not automatically result in the regularization of the suspension period.
27. In support of this submission, reliance has been placed upon Krishnakant Raghunath Bibhavnekar v. State of Maharashtra - (1997)3 SCC 636 and K.D.Desai v. High Court of Gujarat - 2009(3) GLH 631.
28. It is next submitted that in K.D.Desai v. High Court of Gujarat (supra), the judgments relied upon by the learned advocate for the petitioner in G.M.Tank v. State of Gujarat (supra) and Capt. M.Paul Anthony v. Bharat Gold Mines Ltd. (supra), have been considered. Further, the Rules considered in the said judgment are pari materia with the Rules, 2002.
29. Regarding the submission advanced on behalf of the petitioner that the punishment is disproportionate to the alleged misconduct, it is submitted by the learned Assistant Government Pleader that the petitioner has admitted that he has committed temporary misappropriation of Page 15 of 65 C/SCA/3602/2007 JUDGMENT Government money, therefore, it cannot be said that the punishment is shockingly disproportionate to the charge. Moreover, in S.R.Tewari v. Union of India And Another - (2013)6 SCC 602, the Supreme Court has held that only in the rarest of rare cases should the Court substitute its view with the punishment awarded by the competent Court and that too, if it finds the punishment to be shockingly disproportionate to the gravity of the misconduct.
30. The learned Assistant Government Pleader has relied upon a judgment of the Supreme Court in State of West Bengal And Others v. Sankar Ghosh - (2014)3 SCC 610, in this regard.
31. It is thus submitted by the learned Assistant Government Pleader that in view of the above facts and circumstances and the legal position, the petition deserves to be rejected.
32. In rejoinder, the learned advocate for the petitioner has reiterated the submissions advanced by him earlier. Alternatively, he has Page 16 of 65 C/SCA/3602/2007 JUDGMENT submitted that the penalty inflicted upon the petitioner be reduced. Insofar as the regularization of the suspension period of the petitioner is concerned, the matter may be remanded for reconsideration, in light of the judgment of acquittal by the criminal Court and the provisions of Rule 70 of the Rules, 2002, considering that the impugned order dated 20.01.2007 was not passed on the same date as the order of revocation of the suspension of the petitioner, dated 27.12.2005.
33. This Court has heard learned counsel for the respective parties at length, perused the averments made in the petition, contents of the impugned orders and other documents on record. This Court has further given serious consideration to the submissions advanced at the Bar and the judgments relied upon by the learned counsel for the respective parties.
34. The single charge against the petitioner is that he committed temporary misappropriation of an amount of Rs.1,16,255/, inasmuch as he withdrew Page 17 of 65 C/SCA/3602/2007 JUDGMENT this amount from the treasury for the purpose of payment of the telephone bills of the respondentDepartment but did not pay the said bills for a period of about eight to nine months. A chargesheet dated 22.04.2003 was issued to the petitioner in this regard. In his reply to the chargesheet dated 25.07.2003, the petitioner has denied the charge against him in toto. He has given no explanation except for stating that delay in the payment of telephone bills cannot be considered as misconduct. In his written statement of defence before the Inquiry Officer dated 29.12.2003, the petitioner came up with another explanation regarding the illness of his wife. According to the petitioner, his wife was taken ill and due to her illness, the petitioner was in an agitated frame of mind, which affected his memory. He, therefore, did not pay the telephone bills for a long period of time. The petitioner has denied that he used the amount for any purposes of his own.
35. It may be noted that in the written statement of defence, the petitioner has not stated the Page 18 of 65 C/SCA/3602/2007 JUDGMENT nature of the illness his wife suffered. Nor has he produced any document to show that he was not in a fit state of mind or that his memory was adversely affected due to his disturbed state of mind resulting from his wife's illness. In the report of the Inquiry Officer dated 05.01.2004 as well, there is no mention of any medical certificates or documents produced by the petitioner, to show that he was mentally disturbed. The Inquiry Officer has, therefore, based his findings upon the contents of the petitioner's written statement of defence and has arrived at the conclusion that the petitioner withdrew the amount for the payment of telephone bills, as stated in the chargesheet, but did not pay the said bills for a considerably long period of time, which fact is proved on record. The Inquiry Officer has taken into consideration the defence of the petitioner regarding the illness of his wife and its resultant adverse effect upon the petitioner's frame of mind, and has arrived at a conclusion that the charge of temporary Page 19 of 65 C/SCA/3602/2007 JUDGMENT misappropriation, as admitted by the petitioner, stands proved against him.
36. It may be noted that till the date of the Inquiry Report, the criminal Court had not rendered its judgment. The petitioner was facing trial for charges under Section 409 of the Indian Penal Code before the competent criminal Court. It is only after the Inquiry Report was made on 05.01.2004, that the criminal Court rendered the judgment of acquittal on 23.04.2004. As soon as the said judgment was delivered, the petitioner made an application dated 18.05.2004 to the Disciplinary Authority, stating therein that in view of the judgment of acquittal by the criminal Court, the disciplinary proceedings against him ought to be dropped. However, the Disciplinary Authority did not drop the disciplinary proceedings. After considering the defence of the petitioner, the said authority passed the impugned order of penalty dated 18.11.2005.
37. In the above background of facts, the first and Page 20 of 65 C/SCA/3602/2007 JUDGMENT major issue to be examined by this Court is whether, upon the rendering of the judgment of acquittal by the criminal Court, the departmental proceedings ought to have been dropped, or not, and whether a major penalty could have been imposed upon the petitioner.
38. Learned advocate for the petitioner has relied upon the judgment of the Supreme Court in the case of G.M.Tank v. State of Gujarat (supra) on this point, wherein the Supreme Court has held as below:
"20. It is thus seen that this is a case of no evidence. There is no iota of evidence against the appellant to hold that the appellant is guilty of having illegally accumulated excess income by way of gratification. The respondent failed to prove the charges leveled against the appellant. It is not in dispute that the appellant being a public servant used to submit his yearly property return relating to his movable and immovable property and the appellant has also submitted his return in the year 1975 showing his entire movable and immovable assets. No query whatsoever was ever raised about the movable and Page 21 of 65 C/SCA/3602/2007 JUDGMENT immovable assets of the appellant. In fact, the respondent did not produce any evidence in support of and/or about the alleged charges levelled against the appellant.. Likewise, the criminal proceedings were initiated against the appellant for the alleged charges punishable under the provisions of P.C. Act on the same set of facts and evidence. It was submitted that the departmental proceedings and the criminal case are based on identical and similar (verbatim) set of facts and evidence. The appellant has been honourably acquitted by the competent Court on the same set of facts, evidence and witness and, therefore, the dismissal order based on same set of facts and evidence on the departmental side is liable to be set aside in the interest of justice.
... ... ...
30. The judgments relied on by the learned counsel appearing for the respondents are not distinguishable on facts and on law. In this case, the departmental proceedings and the criminal case are based on identical and similar set of facts and the charge in a Departmental case against the appellant and the charge before the Criminal Court are one and the same. It is true that the nature of charge in the departmental proceedings and Page 22 of 65 C/SCA/3602/2007 JUDGMENT in the criminal case is grave. The nature of the case launched against the appellant on the basis of evidence and material collected against him during enquiry and investigation and as reflected in the charge sheet, factors mentioned are one and the same. In other words, charges, evidence, witnesses and circumstances are one and the same. In the present case, criminal and departmental proceedings have already noticed or granted on the same set of facts namely, raid conducted at the appellant's residence, recovery of articles therefrom. The Investigating Officer, Mr. V.B. Raval and other departmental witnesses were the only witnesses examined by the Enquiry Officer who by relying upon their statement came to the conclusion that the charges were established against the appellant. The same witnesses were examined in the criminal case and the criminal court on the examination came to the conclusion that the prosecution has not proved the guilt alleged against the appellant beyond any reasonable doubt and acquitted the appellant by his judicial pronouncement with the finding that the charge has not been proved. It is also to be noticed the judicial pronouncement was made after a regular trial and on hot contest. Under these circumstances, it would be unjust and unfair and rather oppressive to Page 23 of 65 C/SCA/3602/2007 JUDGMENT allow the findings recorded in the departmental proceedings to stand.
31. In our opinion, such facts and evidence in the department as well as criminal proceedings were the same without there being any iota of difference, the appellant should succeed. The distinction which is usually proved between the departmental and criminal proceedings on the basis of the approach and burden of proof would not be applicable in the instant case. Though finding recorded in the domestic enquiry was found to be valid by the Courts below, when there was an honourable acquittal of the employee during the pendency of the proceedings challenging the dismissal, the same requires to be taken note of and the decision in Paul Anthony's case (supra) will apply. We, therefore, hold that the appeal filed by the appellant deserves to be allowed."
39. The second judgment relied upon by the learned advocate for the petitioner in this regard is in the case of Capt. M.Paul Anthony v. Bharat Gold Mines Ltd. (supra) wherein the Supreme Court has held as below:
Page 24 of 65
C/SCA/3602/2007 JUDGMENT "34. There is yet another reason for discarding the whole of the case of the respondents. As pointed out earlier, the criminal case as also the departmental proceedings were based on identical set of facts, namely, "the raid conducted at the appellant's residence and recovery of incriminating articles therefrom". The findings recorded by the Inquiry Officer, a copy of which has been placed before us, indicate that the charges framed against the appellant were sought to be proved by Police Officers and Panch witnesses, who had raided the house of the appellant and had effected recovery. They were the only witnesses examined by the Inquiry Officer and the Inquiry Officer, relying upon their statements, came to the conclusion that the charges were established against the appellant. The same witnesses were examined in the criminal case but the court, on a consideration of the entire evidence, came to the conclusion that no search was conducted nor was any recovery made from the residence of the appellant. The whole case of the prosecution was thrown out and the appellant was acquitted. In this situation, therefore, where the appellant is acquitted by a judicial pronouncement with the finding that the "raid and recovery" at the residence of the appellant were not proved, Page 25 of 65 C/SCA/3602/2007 JUDGMENT it would be unjust, unfair and rather oppressive to allow the findings recorded at the ex parte departmental proceedings to stand.
35. Since the facts and the evidence in both the proceedings, namely, the departmental proceedings and the criminal case were the same without there being any iota of difference, the distinction, which is usually drawn as between the departmental proceedings and the criminal case on the basis of approach and burden of proof, would not be applicable to the instant case."
40. The third judgment on this point cited on behalf of the petitioner is in the case of Roop Singh Negi v. Punjab National Bank (supra) wherein the Supreme Court has stated as below:
"8. Before the disciplinary authority, the appellant contended that there was no evidence against him. The attention of the disciplinary authority was furthermore drawn to the fact that by an order dated 9.5.2000, the Criminal Court passed an order of his discharge. Only charges under Section 411 of the Penal Code were framed against one Rajbir. Neither the State nor the Bank preferred any revision petition Page 26 of 65 C/SCA/3602/2007 JUDGMENT thereagainst. The same attained finality.
9. The Regional Manager acting as a disciplinary authority by an order dated 24.1.2001 without assigning any reason and without considering the contentions raised by the appellant including the fact that he had been discharged by the criminal court, directed the appellant to be dismissed from services, stating:
"That I have again gone through the facts carefully and I hold you responsible for gross misconduct in terms of Bipartite Settlement clause 19.5 (amended from time to time) and there is no justification to reduce the proposed punishment. Therefore, in terms of the Bipartite Settlement clause 19.6, I confirm the proposed punishment "dismissal from bank service". As you are under suspension, therefore, I order that in terms of Bipartite Settlement Provisions you will be eligible for subsistence allowance only till your dismissal from bank service."
... ... ...
15. We have noticed hereinbefore that the only basic evidence whereupon reliance has been placed by the Enquiry Officer was the purported confession made by the appellant before the police. According to the appellant, he was forced to sign on the said confession, as he was tortured in the police station. Appellant being an employee of the Page 27 of 65 C/SCA/3602/2007 JUDGMENT bank, the said confession should have been proved. Some evidence should have been brought on record to show that he had indulged in stealing the bank draft book. Admittedly, there was no direct evidence. Even there was no indirect evidence. The tenor of the report demonstrates that the Enquiry Officer had made up his mind to find him guilty as otherwise he would not have proceeded on the basis that the offence was committed in such a manner that no evidence was left.
... ... ...
23. Furthermore, the order of the disciplinary authority as also the appellate authority are not supported by any reason. As the orders passed by them have severe civil consequences, appropriate reasons should have been assigned. If the enquiry officer had relied upon the confession made by the appellant, there was no reason as to why the order of discharge passed by the criminal court on the basis of selfsame evidence should not have been taken into consideration. The materials brought on record pointing out the guilt are required to be proved. A decision must be arrived at on some evidence, which is legally admissible. The provisions of the Evidence Page 28 of 65 C/SCA/3602/2007 JUDGMENT Act may not be applicable in a departmental proceeding but the principles of natural justice are. As the report of the enquiry officer was based on merely ipse dixit as also surmises and conjectures, the same could not have been sustained. The inferences drawn by the enquiry officer apparently were not supported by any evidence. Suspicion, as is well known, however high may be, can under no circumstances be held to be a substitute for legal proof."
41. The fourth judgment relied upon by the learned advocate for the petitioner in support of his submission is Management, Pandiyan Roadways Corp. Ltd. v. N.Balakrishnan (supra).
42. In the above judgments, the Supreme Court has laid down the principle of law that if the departmental proceedings and the criminal case are based on an identical set of facts and the charges framed against the delinquent are sought to be proved by the same set of witnesses and the same evidence is to be relied upon in both the criminal trial and the departmental inquiry, under those circumstances, it would be Page 29 of 65 C/SCA/3602/2007 JUDGMENT oppressive to allow the finding recorded in the departmental inquiry to stand, in view of the acquittal by the criminal Court.
43. However, in Capt. M.Paul Anthony v. Bharat Gold Mines Ltd. (supra), the Supreme Court has enumerated certain conclusions, after examining various previous decisions, which are summed up in Paragraph 22, as below:
"22. The conclusions which are deducible from various decisions of this Court referred to above are :
(i) Departmental proceedings and proceedings in a criminal case can proceed simultaneously as there is no bar in their being conducted simultaneously, though separately.
(ii) If the departmental proceedings and the criminal case are based on identical and similar set of facts and the charge in the criminal case against the delinquent employee is of a grave nature which involves complicated questions of law and fact, it would be desirable to stay the departmental proceedings till the conclusion of the criminal case.Page 30 of 65
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(iii) Whether the nature of a charge in a criminal case is grave and whether complicated questions of fact and law are involved in that case, will depend upon the nature of offence, the nature of the case launched against the employee on the basis of evidence and material collected against him during investigation or as reflected in the chargesheet.
(iv) The factors mentioned at (ii) and (iii) above cannot be considered in isolation to stay the Departmental proceedings but due regard has to be given to the fact that the departmental proceedings cannot be unduly delayed.
(v) If the criminal case does not proceed or its disposal is being unduly delayed, the departmental proceedings, even if they were stayed on account of the pendency of the criminal case, can be resumed and proceeded with so as to conclude them at an early date, so that if the employee is found not guilty his honour may be vindicated and in case he is found guilty, administration may get rid of him at the earliest."
(emphasis supplied) Page 31 of 65 C/SCA/3602/2007 JUDGMENT
44. It is now a settled principle of law that departmental proceedings and a criminal case can proceed simultaneously. In cases where complicated questions of law arise in the departmental proceedings and the charge against the delinquent is of a grave nature, it would be desirable to stay the departmental proceedings till the conclusion of the criminal case. However, the Supreme Court has further clarified that, whether the nature of the charges in a criminal case is grave and whether complicated facts of questions of fact and law are involved in that case, would depend upon the nature of offence, the nature of the case launched against the employee on the basis of the evidence and material collected against him during the investigation or as reflected in the chargesheet. In short, it would depend on the facts and circumstances of individual cases.
45. In the present case, it is not disputed that the criminal case and the departmental inquiry proceeded simultaneously, except for the fact that the criminal case was decided during the Page 32 of 65 C/SCA/3602/2007 JUDGMENT pendency of the departmental inquiry, after the report of the Inquiry Officer was made, but before the Disciplinary Authority passed the final order of penalty. The charge against the petitioner is that he has allegedly committed temporary misappropriation of the amount to be paid towards telephone bills of the respondent Department. This fact has been categorically admitted by the petitioner in the departmental inquiry. It, therefore, cannot be said that any complicated questions of law and fact arose in the departmental inquiry so as to warrant the stay of the proceedings, especially as the criminal case had already been concluded. It was not even the case of the petitioner that the departmental proceedings ought to be stayed.
46. The petitioner, however, sought to take advantage of his acquittal in the criminal case, when the matter reached the Disciplinary Authority, at the stage of imposition of the penalty. It may be noted that in the departmental inquiry, no witnesses were required to be examined and no evidence was collected, as Page 33 of 65 C/SCA/3602/2007 JUDGMENT the petitioner outright admitted the charge of temporary misappropriation in his written statement of defence before the Inquiry Officer, though he sought to justify his action on the ground of his wife's illness. It cannot, therefore, be said that the criminal case proceeded on the same set of evidence and the same witnesses were to be examined in the departmental inquiry as well. The admission of temporary misappropriation by the petitioner and his explanation regarding his wife's illness, did not necessitate the production of evidence or examination of witnesses. Further, it is not the case of the petitioner that the admission made by him was a result of coercion. Neither has the petitioner resiled from the said admission, at any stage.
47. In Capt. M.Paul Anthony v. Bharat Gold Mines Ltd. (supra), the Supreme Court was dealing with a case where the criminal case and the departmental inquiry were based on an identical set of facts and identical charges, which were sought to be proved in the criminal case and the Page 34 of 65 C/SCA/3602/2007 JUDGMENT departmental inquiry, by the same set of witnesses. Under such circumstances, the Supreme Court, on the facts of that case, concluded that when the appellant before it was acquitted by a judicial pronouncement, the departmental proceedings could not be allowed to stand. Such is not the factual scenario in the present case. Therefore, the petitioner would not derive much benefit from the above judgment.
48. In G.M.Tank v. State of Gujarat (supra), the Supreme Court has held that it was a case of no evidence and that there was no iota of evidence against the appellant therein to hold that he was guilty of having illegally accumulated excess income by way of gratification. The departmental proceedings and the criminal case were based on the same set of facts and evidence, therefore, as it was a case of no evidence, which led to honourable acquittal by the criminal Court, the departmental inquiry was liable to be set aside, based on the same set of facts and evidence. This case is also factually different from the case of the present Page 35 of 65 C/SCA/3602/2007 JUDGMENT petitioner, as in the present case the petitioner has admitted the temporary misappropriation of Government money in the departmental inquiry.
49. In Roop Singh Negi v. Punjab National Bank (supra), the appellant therein had made a confession before the police officer that he was involved in stealing of the bank draft book. The Supreme Court held that the socalled confession, by itself, was not sufficient and there ought to have been some evidence on record regarding the involvement of the delinquent in the criminal case. In the instant case, it is not the case of the petitioner that he was forced to sign upon any confession or that he was coerced into doing so. In Roop Singh Negi v. Punjab National Bank (supra), the appellant therein was tortured in the police station. In the present case, the admission of the petitioner was not given before the police officer but was voluntarily given in the written statement of defence by the petitioner before the Inquiry Officer. It cannot, therefore, be Page 36 of 65 C/SCA/3602/2007 JUDGMENT said that the factual scenario in the present case is similar to the one obtaining in Roop Singh Negi v. Punjab National Bank (supra), entailing similar judicial consequences.
50. In Management, Pandiyan Roadways Corp. Ltd. v.
N.Balakrishnan (supra), relied upon by the learned advocate for the petitioner, the Supreme Court has held as below:
"21. However, there is another aspect of the matter which cannot be lost sight of. Respondent, in the meanwhile, has been acquitted. The factum of his acquittal has been taken into consideration by the Division Bench, which was considered to be an additional factor. Ordinarily, the question as to whether acquittal in a criminal case will be conclusive in regard to the order of punishment imposed upon the delinquent officer in a departmental proceeding is a matter which will again depend upon the fact situation involved in a given case.
22. There are evidently two lines of decisions of this Court operating in the field. One being the cases which would come within the purview of Capt. Paul Anthony v.Page 37 of 65
C/SCA/3602/2007 JUDGMENT Bharat Gold Mines Ltd. and Another [(1999) 3 SCC 679] and G.M. Tank v. State of Gujarat and Others [(2006) 5 SCC 446]. However, the second line of decisions show that an honourable acquittal in the criminal case itself may not be held to be determinative in respect of order of punishment meted out to the delinquent officer, inter alia, when : (i) the order of acquittal has not been passed on the same set of fact or same set of evidence; (ii) the effect of difference in the standard of proof in a criminal trial and disciplinary proceeding has not been considered. [See Commissioner of Police, New Delhi v. Narender Singh (2006) 4 SCC 265], or; where the delinquent officer was charged with something more than the subjectmatter of the criminal case and/or covered by a decision of the Civil Court. [See G.M. Tank (supra), Jasbir Singh v. Punjab & Sind Bank and Others 2006 (11) SCALE 204, and Noida Enterprises Assn. v.
Noida & Others 2007 (2) SCALE 131 \026 Para 18]"
51. As per this judgment, whether the order of acquittal in a criminal case would be conclusive with regard to the order of punishment imposed upon the delinquent in a departmental proceeding is a matter which would depend upon the fact Page 38 of 65 C/SCA/3602/2007 JUDGMENT situation involved in a given case. In Paragraph41 of the judgment in Narinder Mohan Arya v. United India Insurance Co. Ltd and others - (2006)4 SCC 713, quoted by the Supreme Court, it is held that it may not be understood to have laid down a law that in all such circumstances the decision of the civil Court or the criminal Court would be binding on the disciplinary authorities as other factors have to be taken into consideration as well.
52. Thus, it can be seen from the above pronouncements of the Supreme Court that whether the decision imposing penalty in a departmental inquiry ought to be quashed and set aside due to the judgment of acquittal in a criminal case, depends on the fact situation in each case. It cannot be said that acquittal in a criminal case would automatically lead to the quashing and setting aside of the departmental proceedings and the order of penalty.
53. The standard of proof required to be followed in a criminal case and a departmental inquiry are Page 39 of 65 C/SCA/3602/2007 JUDGMENT totally different. In a criminal case, the standard of proof would be much stricter, that is, proof beyond a reasonable doubt. On the other hand, in a departmental inquiry, the standard of proof would not be as strict as in a criminal case, but would depend on the preponderance of probability. This is now a settled position of law enunciated by the Supreme Court in a catena of judgments.
54. In the case in hand, the criminal Court, applying the standard of proof beyond a reasonable doubt, examined the case of the petitioner from that perspective and concluded that sufficient evidence was not brought on record to prove the charge of temporary misappropriation against the petitioner. However, the conclusion of acquittal arrived at by the criminal Court by applying the standard of proof beyond a reasonable doubt cannot be equated to the penalty imposed in the departmental inquiry, applying the standard of preponderance of probability.
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55. At the cost of repetition, it may be noted that the petitioner has clearly admitted before the Inquiry Officer that he has committed temporary misappropriation of the amount, while giving his explanation for doing so. According to the petitioner, the explanation of his wife's illness and his disturbed state of mind ought to have absolved him of the charges. According to the petitioner, his wife was facing some undisclosed illness due to which he was in a disturbed state of mind, which affected his memory. The petitioner did not, therefore, pay the telephone bills in time and could do so only after the health of his wife improved. Applying the standard of preponderance of probability while considering the admission of the petitioner and the fact that he retained the amount towards the telephone bills for a considerable period of time, it cannot be said that the findings arrived at by the Inquiry Officer that the charge against the petitioner is proved, can be said to be illegal, perverse or baseless.
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56. It may be true that when the report of the Inquiry Officer was rendered, the judgment of the criminal Court had not been delivered. After the judgment of the criminal Court was delivered the petitioner made an application to the Disciplinary Authority stating that the inquiry ought to be dropped due to the said judgment. No additional facts or evidence were brought on record by the petitioner. The Disciplinary Authority upheld the findings of the Inquiry Officer and passed the impugned order of penalty.
57. A submission has been advanced on behalf of the petitioner that no reasons have been given by the Inquiry Officer in the Inquiry Report, in support of the conclusion that charge was proved against the petitioner, and neither has the Disciplinary Authority given adequate reasons.
58. It is not as though the Inquiry Officer or the Disciplinary Authority were dealing with a complicated set of evidence or questions of law and fact that required a detailed analysis. The Page 42 of 65 C/SCA/3602/2007 JUDGMENT petitioner has admitted the temporary misappropriation before the Inquiry Officer. In the inquiry report, the Inquiry Officer has gone through the entire material on record against the petitioner, including the bills that have remained unpaid, the dates on which they were raised, the dates on which they ought to have been paid and the amount of the said bills. The Inquiry Officer has also gone into the aspect when the petitioner withdrew the amount from the treasury to pay the bills and when they were actually paid, after about eight to nine months of the withdrawal of the amount. Not only that, the Inquiry Officer has considered the defence of the petitioner regarding the illness of his wife. Only thereafter, has he arrived at a conclusion that the charge against the petitioner is proved. No material to the contrary has been produced by the petitioner, requiring detailed analysis by the Inquiry Officer. Under the circumstances, this Court does not find that the inquiry report lacks sufficient reasons or that the Inquiry Officer Page 43 of 65 C/SCA/3602/2007 JUDGMENT has not applied his mind properly to the charge against the petitioner. This Court, therefore, expresses its inability to interfere with the findings recorded by the Inquiry Officer.
59. Insofar as the impugned order of penalty passed by the Disciplinary Authority is concerned, it may be noted that before passing the same, the Disciplinary Authority has taken into consideration the entire defence of the petitioner and also the aspect that the petitioner has prayed for the dropping of the inquiry proceedings on the ground of his acquittal in the criminal case. As stated hereinabove, the law does not require that just because a person has been acquitted in a criminal case, the departmental proceedings against him will automatically be dropped. It would depend on the factual scenario in each case. In the present case, at the cost of repetition, the departmental inquiry was concluded on the basis of an admission of the petitioner from which he has not resiled as of date. It, therefore, cannot be said that the Page 44 of 65 C/SCA/3602/2007 JUDGMENT departmental proceedings are based on the same set of evidence or witnesses that formed the basis of the order of acquittal by the criminal Court.
60. At this stage, it would be relevant to refer to certain judgments of the Supreme Court in which the scope of interference by this Court in departmental inquiry has been discussed.
61. The learned Assistant Government Pleader has relied upon a judgment in the case of State of Rajasthan v. Sujata Malhotra (supra), wherein the Supreme Court has held as below:
"5. Having considered the rival submissions and on examining the impugned judgment of the High Court, we find considerable force in the submissions made by the learned counsel for the appellant. The High Court possibly would not be within its power to interfere with an order of punishment inflicted in a departmental proceeding until and unless any lacuna in the departmental proceeding is noticed or found. But having regard to the fact that the order of reinstatement has already been implemented and the respondent is continuing in service Page 45 of 65 C/SCA/3602/2007 JUDGMENT subsequent to the date of the order of the High Court, we are not inclined to interfere with that part of the order of the High Court even though, we find considerable force in the arguments of the counsel for the State of Rajasthan. While, therefore, the order directing reinstatement of the respondent is upheld, we cannot sustain the other part of the order directing payment of back wages to the extent of 50 per cent for the period the respondent was not in service, we, therefore, set aside that part of the order of the High Court. For the purpose of clarification, we reiterate that though the respondent would be entitled to be reinstated in service and the period of her absence would be treated as a part of continuity in the service for the purpose of retiral benefit but she would not be entitled to any pecuniary benefits for the total period of her absence till the date of her reinstatement in service. The appeal stands disposed of accordingly."
62. Further, in S.R.Tewari v. Union of India And Another (supra), relied upon by the learned Assistant Government Pleader, the Supreme Court has held as under:
"23. The Court must keep in mind that Page 46 of 65 C/SCA/3602/2007 JUDGMENT judicial review is not akin to adjudication on merit by reappreciating the evidence as an appellate authority. Thus, the court is devoid of the power to reappreciate the evidence and come to its own conclusion on the proof of a particular charge, as the scope of judicial review is limited to the process of making the decision and not against the decision itself and in such a situation the court cannot arrive on its own independent finding. (Vide: High Court of Judicature at Bombay v. Udaysingh; State of A P v. Mohd. Nasrullah Khan, and Union of India v. Manab Kumar Guha).
24. The question of interference on the quantum of punishment, has been considered by this Court in a catena of judgments, and it was held that if the punishment awarded is disproportionate to the gravity of the misconduct, it would be arbitrary, and thus, would violate the mandate of Article 14 of the Constitution. In Ranjit Thakur v. Union of India, this Court observed as under: (SCC pp.62021, paras 25 & 27) "25. But the sentence has to suit the offence and the offender. It should not be vindictive or unduly harsh. It should not be so disproportionate to the offence as to shock the conscience and amount in itself to conclusive evidence of bias. The doctrine of proportionality, as part of the concept of judicial review, would ensure that Page 47 of 65 C/SCA/3602/2007 JUDGMENT even on the aspect, which is otherwise, within the exclusive province of the Court Martial, if the decision of the Court eve n as to sentence is an outrageous defiance of logic, then the sentence would not be immune from correction.
... ... ...
27. In the present case, the punishment is so stringently disproportionate as to call for and justify interference. It cannot be allowed to remain uncorrected in judicial review."
(Emphasis supplied) (See also: Union of India v. G. Ganayutham, State of U P v. J.P. Saraswat, Chandra Kumar Chopra v. Union of India, and High Court of Patna v. Pandey Gajendra Prasad).
25. In B.C. Chaturvedi v. Union of India , this Court after examining various its earlier decisions observed that in exercise of the powers of judicial review, the court cannot "normally" substitute its own conclusion or penalty. However, if the penalty imposed by an authority "shocks the conscience" of the court, it would appropriately mould the relief either directing the authority to reconsider the penalty imposed and in exceptional and rare cases, in order to shorten the litigation, itself, impose appropriate punishment with cogent reasons in support thereof. While examining the issue of proportionality, Page 48 of 65 C/SCA/3602/2007 JUDGMENT court can also consider the circumstances under which the misconduct was committed. In a given case, the prevailing circumstances might have forced the accused to act in a certain manner though he had not intended to do so. The court may further examine the effect, if the order is set aside or substituted by some other penalty. However, it is only in very rare cases that the Court might, to shorten the litigation, think of substituting its own view as to the quantum of punishment in place of punishment awarded by the competent authority.
26. In V. Ramana v. A.P. SRTC, this Court considered the scope of judicial review as to the quantum of punishment is permissible only if it is found that it is not commensurate with the gravity of the charges and if the court comes to the conclusion that the scope of judicial review as to the quantum of punishment is permissible only if it is found to be "shocking to the conscience of the Court, in the sense that it was in defiance of logic or moral standards." In a normal course, if the punishment imposed is shockingly disproportionate, it would be appropriate to direct the Disciplinary Authority to reconsider the penalty imposed. However, in order to shorten the litigation, in Page 49 of 65 C/SCA/3602/2007 JUDGMENT exceptional and rare cases, the Court itself can impose appropriate punishment by recording cogent reasons in support thereof.
27. In State of Meghalaya v. Mecken Singh N. Marak, this Court observed that: (SCC p.584, paras 1314)
13. ...A court or a tribunal while dealing with the quantum of punishment has to record reasons as to why it is felt that the punishment is not commensurate with the proved charges.
14. In the matter of imposition of sentence, the scope for interference is very limited and restricted to exceptional cases. ... ... ... The punishment imposed by the disciplinary authority or the appellate authority unless shocks the conscience of the court, cannot be subjected to judicial review. (See also: A.P. SRTC v. P. Jayaram Reddy).
28. The role of the court in the matter of departmental proceedings is very limited and the court cannot substitute its own views or findings by replacing the findings arrived at by the authority on detailed appreciation of the evidence on record. In the matter of imposition of sentence, the scope for interference by the court is very limited and restricted to exceptional cases. The punishment imposed by the disciplinary authority or the appellate authority unless Page 50 of 65 C/SCA/3602/2007 JUDGMENT shocking to the conscience of the court, cannot be subjected to judicial review. The court has to record reasons as to why the punishment is disproportionate. Failure to give reasons amounts to denial of justice. The mere statement that it is disproportionate would not suffice. (Vide:
Union of India v. Bodupalli Gopalaswami, and Sanjay Kumar Singh v. Union of India.)"
(emphasis supplied)
63. From the above pronouncements of law, it can be deduced that the Court can exercise the power of judicial review of departmental proceedings if there is a manifest error or the said exercise is manifestly arbitrary or where the power is exercised on the basis of facts which did not exist or are patently erroneous. In the present case, it is not the contention of the petitioner that there is any flaw or lacuna in the departmental inquiry conducted against him. The petitioner has been granted adequate opportunities of hearing at every stage. It is not a case where the principles of natural justice have been violated. The penalty inflicted upon the petitioner is the reduction Page 51 of 65 C/SCA/3602/2007 JUDGMENT of one increment in the pay drawn by him, for one year, with future effect. Though the said penalty would have a bearing on the emoluments to be received by the petitioner, however, in view of the fact that it has emerged as an undisputed fact that the petitioner has admitted to the charge of temporary misappropriation, it cannot be said that the penalty imposed is shockingly disproportionate to the misconduct committed by the petitioner.
64. It has further been submitted on behalf of the petitioner that no financial loss has entailed to the respondentDepartment, as the petitioner has ultimately made the payment of telephone bills. This Court is not convinced by this submission, in view of the provisions of Rule 3 of the Rules, 1971, wherein it is stated in sub rule (1)(i) and (ii) that every Government servant shall, at all times, maintain absolute integrity and do nothing which is unbecoming of a Government servant. The very act of temporary misappropriation would attract the said Rules.
There is no mitigating clause in the Rules of Page 52 of 65 C/SCA/3602/2007 JUDGMENT 1971, that allows room for dilution of its provisions on the ground that no financial loss was caused to the Government.
65. The learned Assistant Government Pleader has relied upon a judgment of the Supreme Court in State of West Bengal And Others v. Sankar Ghosh (supra), wherein the Supreme Court has held that there is no rule of automatic reinstatement on acquittal by a criminal Court, even though the charges levelled against the delinquent before the Inquiry Officer as well as the criminal Court are the same. There can be no doubt regarding this proposition of law, which is, by now, settled.
66. The next issue that has been highlighted in the petition is regarding the regularization of the suspension period of the petitioner, the request for which has been refused by respondent No.3, by the impugned order dated 20.01.2007.
67. It has been submitted on behalf of the petitioner that the impugned order dated 20.01.2007 is illegal as, it is stipulated in Page 53 of 65 C/SCA/3602/2007 JUDGMENT Rule 70 of the Rules, 2002, that the authority competent to make an order of reinstatement shall consider and make a specific order when the Government employee who has been dismissed, removed or suspended, is reinstated. In the present case, the petitioner was suspended on 04.10.2001 and the suspension of the petitioner was revoked on 27.12.2005. According to the petitioner, as per the provisions of Rule 70, the order of regularization of the suspension period of the petitioner ought to have been passed as per the said Rules. However, this was not done and the petitioner was constrained to make an application on 29.05.2006, for the regularization of his suspension period.
Thereafter, the respondents issued a show cause notice dated 22.11.2006 to the petitioner, to which he replied on 09.01.2007. The respondents did not accede to the request of the petitioner and passed the abovementioned impugned order, which is not sustainable in law as it is not in consonance with the provisions of Rule 70 of the Rules, 2002.Page 54 of 65
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68. This contention of the learned advocate for the petitioner does not appear to carry much weight, in view of the provisions of Rule 70 of the Rules, 2002, reproduced hereinbelow:
"70. Regularization of pay and allowances and the period of absence from duty where dismissal, removal or suspension is set aside as a result of appeal or review and such Government employee is reinstated:
(1) When a Government employee who has been dismissed, removed or suspended is reinstated, the authority competent to make order of reinstatement shall consider and make a specific order:
(a) regarding the pay and allowances to be paid to the Government employee for the period of his absence from duty; and
(b) whether or not the said period shall be treated as a period spent on duty.
(2) Where the authority mentioned in subrule (1) is of the opinion that the Government employee has been fully exonerated or in the case of suspension that it was wholly unjustified; the Government employee shall be given the full pay and allowances to which he would have been entitled had he not been dismissed, removed or suspended as the case may be.
(3) In other case, the Government employee shall be given proportion of such pay and allowances as the competent authority may prescribe:
Provided that the payment of allowances under subrule (2) or (3) shall be subject to all other conditions under which such Page 55 of 65 C/SCA/3602/2007 JUDGMENT allowances are admissible.
(4) In case falling under subrule (2) the period of absence from duty shall be treated as a period spent on duty for all purposes.
(5) In case falling under subrule (3) the period of absence from duty 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.
Instruction: Payment of pay and/or allowances under this rule should be withheld for any period during which the Government employee has accepted private employment or engaged in trade or business. A certificate as prescribed in subrule (4) of rule69 shall be obtained from him before payment is made.
(6) In deciding whether any pay and allowance should be granted under this rule to Government employees in temporary employment, the period for which the temporary appointment has been sanctioned shall be taken into consideration.
(7) When an appointment made in consequence of a vacancy caused due to the removal or dismissal of a Government employee is cancelled in order to provide for the reinstatement of the removed or dismissed Government employee, the cancellation shall not affect retrospectively to the said appointment, and for all purposes, the cancelled appointment shall be held to have been in force upto the date of its cancellation."
69. A perusal of the above Rule indicates that the Page 56 of 65 C/SCA/3602/2007 JUDGMENT authority competent to make an order of reinstatement shall consider and make a specific order regarding the pay and allowances to be paid to the delinquent for the period of his absence from duty and whether, or not the said period shall be treated as a period spent on duty. Where the authority is of the opinion that the delinquent has been fully exonerated or that the suspension was wholly unjustified, it shall order the full pay and allowances to which he would have been entitled had he not been dismissed, removed or suspended, as the case may be. The language of Section 70 subrule (1) is plain and unambiguous and means that when a Government employee who has been dismissed, removed or suspended is reinstated, the authority competent to make an order of reinstatement shall consider and make a specific order regarding the pay and allowances to be paid to such employee for the period of his absence on duty. It does not mean that the order regarding pay and allowances for the period of absence has to be a part of the order of Page 57 of 65 C/SCA/3602/2007 JUDGMENT reinstatement. The competent authority is required to consider the matter, form an opinion, and then pass an order in this regard. The contention of the learned advocate for the petitioner that the order regarding the regularization of the suspension period ought to have been made on the date of the revocation of the suspension on 27.12.2005, does not flow from a plain reading of Rule 70. It may be true that the petitioner made an application to the respondents to regularize the said period. However, that, in itself, does not mean that the respondents were bound to accede to it. Subrule (2) of Rule 70 clearly states that if the authority is of the opinion that the employee has been fully exonerated or that the suspension is wholly unjustified, then in such cases, the period of absence from duty can be regularized. However, in the present case the petitioner has not been exonerated in the departmental inquiry, therefore, no such opinion has been formed by the authority that the suspension of the petitioner is unjustified. Hence, as per sub Page 58 of 65 C/SCA/3602/2007 JUDGMENT rule (2) of Rule 70 of the Rules, 2002, the application of the petitioner has been rejected after granting him a full opportunity of hearing, by way of issuing a show cause notice and considering his reply thereto.
70. The learned advocate for the petitioner has placed reliance upon a Division Bench judgment of this Court in Sadevant Manilal Brahmbhatt v. State of Gujarat (supra) on the point of regularization of the suspension period of the petitioner. In that case, the factual matrix was quite different from the one obtaining in the present case, inasmuch as, that was a case where the penalty, itself, had been set aside. The present is not such a case and there is an order of penalty against the petitioner passed by the Disciplinary Authority. On the facts of that case, the Division Bench came to the conclusion that when the order of dismissal is set aside by the Court, the employee is entitled to salary as if he was on duty during the period of suspension, therefore, he is entitled to claim arrears of salary minus the subsistence Page 59 of 65 C/SCA/3602/2007 JUDGMENT allowance already drawn. The conclusion arrived at by the Division Bench was on the peculiar facts of that case. As the facts of the present case are on a different footing, the principle of law enunciated by the Division Bench would not be applicable.
71. On the other hand, the learned Assistant Government Pleader has relied upon a judgment of the Supreme Court in Krishnakant Raghunath Bibhavnekar v. State of Maharashtra (supra), wherein the Supreme Court has taken a view that, if the acquittal in a criminal case is based on insufficient evidence, it does not automatically entitle a person to backwages, pensionary benefits and other consequential benefits on his reinstatement where suspension is ordered pending the criminal case. In the present case as well, the petitioner was acquitted in the criminal case due to the fact that the prosecution could not muster sufficient reliable evidence against him. In this view of the matter and taking into consideration the specific provisions of Rule 70, subrule (2) of the Page 60 of 65 C/SCA/3602/2007 JUDGMENT Rules, 2002, which empower the competent authority to form an opinion, it cannot be said that acquittal in the criminal case would automatically lead to the regularization of the suspension period of the petitioner, especially as he has not been exonerated in the departmental proceedings.
72. The learned Assistant Government Pleader has further relied upon a judgment in the case of K.D.Desai v. High Court of Gujarat (supra), the facts of which are on a somewhat similar footing to those obtaining in the present case, to the extent that the case before the Division Bench was also that of temporary misappropriation. This judgment would be relevant in the context of the submissions advanced by the learned advocate for the petitioner, that the disciplinary authority has passed the order of penalty on the ground that a doubt or suspicion is raised with regard to the integrity of the petitioner in view of the fact that he has admitted to temporary misappropriation. The relevant portion of this judgment is extracted Page 61 of 65 C/SCA/3602/2007 JUDGMENT hereinbelow:
"18. The above decisions, therefore, clearly support the stand of the respondents that even where the charges are not proved in the departmental inquiry or in a criminal trial, the competent authority has to consider whether the charges were not proved on account of insufficiency of evidence or benefit of doubt having been given to the delinquent.
19. In the facts and circumstances of the case, we do find that the Inquiry Officer, even while holding that charge Nos.2 and 3 were not proved, suspicion was created against the petitioner about the conduct of the petitioner. On a perusal of the Inquiry Officer's report, which was accepted by the Competent Authority, charge Nos. 2 and 3 were not proved on account of lack of sufficient legal evidence. We are, therefore, of the view that in the facts and circumstances of the case, it cannot be said that the suspension of the petitioner was wholly unjustified even on the basis of the material available with the Competent Authority upon conclusion of the inquiry.
20. In view of the above discussion, we find that though the respondent did not place Page 62 of 65 C/SCA/3602/2007 JUDGMENT correct interpretation on the provisions of subrule (2) of Rule 152 of BCSR, in the facts and circumstances of the case, it is not possible to hold that suspension of the petitioner during pendency of the inquiry was wholly unjustified merely because all the four charges levelled against the petitioner were not proved."
73. The Division Bench, in that case, was dealing with the provisions of subrule (1) of Rule 152 of the Bombay Civil Services Rules, 1959, which are reproduced in Paragraph3 of the judgment. A perusal thereof goes to show that the rule is pari materia with subrule (2) of Rule 70 of the Rules, 2002, which is the relevant rule in the present case. In view of the above pronouncement of law, the observation of the Disciplinary Authority, while imposing the penalty, that the integrity of the petitioner is shrouded in doubt and suspicion, cannot be faulted. Neither can it be said that it is based on assumptions or presumptions, in view of the admission of the charge by the petitioner.
74. The penalty of reduction of one increment in the Page 63 of 65 C/SCA/3602/2007 JUDGMENT pay drawn by the petitioner in his payscale, for one year, with future effect, has been imposed upon the petitioner, as the charge against him stood proved in the departmental inquiry. The competent authority has been granted discretion under subrule (2) of Rule 70 of the Rules, 2002, to consider the entire matter and, thereafter, form an opinion, regarding the payment of salary and allowances for the period of suspension. The petitioner has not been exonerated, and the authority has not found that his suspension is unjustified, on the facts and circumstances of the case. Considering all aspects of the matter, the competent authority, in this case respondent No.3, has not exercised discretion in favour of the petitioner, for reasons expressed in the impugned order dated 20.01.2007. A perusal of the above order shows that all aspects of the matter have been considered and adequate reasons have been given in support of the conclusion arrived at. This Court is, therefore, of the considered view that the impugned order dated Page 64 of 65 C/SCA/3602/2007 JUDGMENT 20.01.2007 does not suffer from any legal infirmity so as to invite interference.
75. The cumulative effect of the above discussion is that, viewed from all angles, the impugned order, dated 18.11.2005, imposing penalty upon the petitioner, and dated 20.01.2007, rejecting the request of the petitioner for the regularization of his suspension period, are found to be just and proper, on the facts and in the circumstances of the case.
76. Consequently, the petition stands rejected. Rule is discharged. There shall be no orders as to costs.
(SMT. ABHILASHA KUMARI, J.) sunil Page 65 of 65