Rajasthan High Court - Jaipur
State Of Rajasthan & Anr. vs . Dilip Kumar Dewani on 3 February, 2016
Author: Anupinder Singh Grewal
Bench: Anupinder Singh Grewal
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR (1) D.B. Special Appeal (Writ) No.1255/2014 State of Rajasthan & Anr. vs. Dilip Kumar Dewani (2) D.B. Special Appeal (Writ) No.1337/2014 State of Rajasthan & Anr. vs. Dharam Singh & Anr. (3) D.B. Special Appeal (Writ) No.1534/2014 State of Rajasthan & Ors. vs. Mansingh Hada & Ors. (4) D.B. Special Appeal (Writ) No.15/2015 State of Rajasthan & Ors. vs. Sanwar Mal (5) D.B. Special Appeal (Writ) No.18/2015 State of Rajasthan & Anr. vs. Birbal Singh & Anr. (6) D.B. Special Appeal (Writ) No.56/2015 State of Rajasthan & Ors. vs. Brij Kishore Sharma Date of Judgment : 3rd February, 2016 HON'BLE THE ACTING CHIEF JUSTICE MR.AJIT SINGH HON'BLE MR. JUSTICE ANUPINDER SINGH GREWAL Mr. Rajendra Prasad, AAG Mr. Inderjeet Singh, AAG for appellants. Mr. Mohd. Anees, Mr. Sandeep Saxena, Mr. Anil Upman, Mr. Mahendra Sharma, counsel for respondents.
Reportable Anupinder Singh Grewal, J.
As these appeals raise a common question of law, they have been heard together and are being decided by this common judgment.
2. For the sake of convenience, the facts are being taken from D.B. Special Appeal (Writ) No.1255 of 2014. The challenge has been made to the order of the Single Bench dated 13.05.2014 passed in S.B. Civil Writ Petition No.20270 of 2013 whereby while allowing the writ petition, the appellants/respondents therein were directed to grant the benefit of second and third selection scale including the period of suspension as well as the revision of pay scale to the petitioner therein deeming him to be throughout in service. The arrears were directed to be paid with interest at the rate of 9% per annum. In the other cases, the Single Bench has directed the respondents/writ petitioners to be eligible for the grant of the annual grade increments even during the period of suspension which had been revoked.
3. The respondent herein namely Dilip Kumar Dewani was suspended on 22.03.2004 due to his arrest for offences under sections 420, 468, 469, 471 and 120B IPC. Vide order dated 26.11.2012, his suspension was revoked subject to the outcome of pending criminal proceedings. In other appeals, similar details of the respondents/writ petitioners along with the date of suspension, reinstatement as well as the offences wherein they are facing trial as furnished by learned Additional Advocate General, are reproduced as under:
S. No. Case No. Title Date of Suspension Date of Reinstatement Offence u/s 1 SAW No.1337/14 State vs.
1. Dharam Singh s/o Shri Munshi Singh (Constable)
2. Dharam Singh s/o Shri Ramswaroop (Constable) 15.5.2006
(i) 15.3.2000
(ii) 23.6.2009 11.1.2011
(i) 24.4.2009
(ii) 4.1.2010 7, 13(1)D(2) PC Act.
7, 13(1)D(2) PC Act. 120B IPC.
2 SAW No.1534/14State vs.
1. Man Singh Hada (ASI)
2. Pawan Kumar Nagar (ASI)
3. Hansraj (ASI)
4. Irfan (Constable)
5. Prabhu Dayal (ASI)
6. Om Prakash (ASI) 19.4.2008 15.2.2007 7.8.2002 6.1.2006 12.2.2002 11.5.2005 7.6.2010 7.6.2010 11.6.2010 28.12.2010 8.6.2010 8.6.2010 7, 13(1)D(2) PC Act 7, 13(1)D(2) PC Act 7, 13(1)D(2) PC Act 7, 13(1)D(2) PC Act. 120B, 201 IPC.
7, 13(1)D(2) PC Act 7, 13(1)D(2) PC Act. 120B IPC.
3 SAW No.15/2015State vs. Sanwar Mal (Head Constable) 06.11.06 25.5.2011 7, 13(1)D(2) PC Act 4 SAW No.18/2015 State vs.
1. Birbal Singh (Head Constable)
2. Vidhyadhar Sharma (ASI) 6.12.2001 19.4.2005 25.5.2011 2011 Acquittal 7, 13(1)D(2) PC Act 5 SAW No.56/2015 State vs. Brij Kishore Sharma (ASI)
(i) 2.6.2006
(ii) 15.6.2009
(i) 30.4.2009
(ii) 3.4.2012 7, 13(1)D(2) PC Act
4. The learned Additional Advocate General appearing for the appellants has contended that in view of the provisions of Rule 54 of the Rajashan Service Rules, the respondents are not entitled for grant of annual grade increments and other benefits including selection grade during the period of suspension. In support of his submission, he has placed reliance upon the judgment of the Supreme Court in the case of State of Punjab vs. Jaswant Singh Kanwar [(2014) 13 SCC 622].
5. On the other hand, learned counsel for the respondents have contended that once the orders of suspension have been revoked and the orders of reinstatement passed, the respondents were entitled to all the benefits including the increments and selection scale during the period of suspension. In support of their submission, they have placed reliance upon the decision of the Supreme Court in the case of Vijay Kumar Agarwal vs. Union of India & Anr. [2015(10) Scale 486] and the judgment of the Division Bench of this Court rendered in Brij Lal Bundel vs. State of Rajasthan & Anr. [2007(1) RLW 484].
6. We have heard learned counsel for the parties and with their assistance, perused the record.
7. At the outset, we deem it necessary to reproduce hereunder Rule 54 of the Rajasthan Service Rules:
54. Re-instatement (1) When a Government servant who has been dismissed, removed, compulsorily retired or suspended is reinstated or would have been reinstated but for his retirement on superannuation while under suspension, the authority competent to order the reinstatement shall consider and make a specific order:-
(a) regarding the pay and allowances to be paid to the Government servant for the period of his absence from duty or for the period of suspension ending with the date of his retirement on superannuation as the case may be; and
(b) Whether or not the said period shall be treated as a period spend on duty.
(2) Where such competent authority holds that the Government Servant has been fully exonerated or, in the case of suspension that it was wholly unjustified, the Government servant shall be given the full pay and dearness allowance to which he would have been entitled had he not been dismissed, removed or compulsorily retired as a penalty or suspended, as the case may be.
(3) In other cases, the Government servant shall be given such proportion of such pay and dearness allowance as such competent authority may prescribe.
(4) In a case falling under clause (2) the period of absence from duty shall be treated as a period spent on duty for all purposes.
(5) In a case falling under clause (3) the period of absence from duty shall not be treated as a period on duty unless such authority specifically directs that it shall be so treated for any specified purpose:
[Provided that if the Government so desires, such authority may direct that the period of absence from duty shall be converted into leave of any kind due and admissible to the Government servant.] Note:- The order of the competent authority regarding the treatment of the period of absence from duty passed under this proviso is absolute and no higher sanction would be necessary for the grant of extra-ordinary leave in excess of three months in so far as temporary Government servant are concerned.
(6) In cases where punishment order does not indicate as to whether the suspension period is to be counted for the purpose of pension or not, the period of suspension shall be counted for the purpose of pension. In all other cases, action shall be taken as per punishment order.
(7) Any payment made under this rule to a Government servant on his reinstatement shall be subject to adjustment of the amount, if any, earned by him through an employment, business, profession or vocation during the period between the date of removal, dismissal or compulsory retirement, as the case may be, and the date of reinstatement. Where the emoluments admissible under this rule are equal to or less than the amounts earned during the employment, business, profession or vocation elsewhere, nothing shall be paid to the Government servant.
8. A bare reading of Rule 54 indicates that it contemplates the grant of pay and allowances as well as how the period of suspension is to be treated. In terms of Rule 54(1), the competent authority after the reinstatement of the employee, shall pass a specific order relating to the pay and allowances for the period of absence and whether the said period has to be treated as period spent on duty. Rule 54(2) provides that full pay and dearness allowance shall be payable to the employee in case the competent authority is of the view that the employee has been fully exonerated or his suspension was wholly unjustified. Rule 54(3) refers to other situations which do not involve full exoneration of the employee or the period of suspension is not found to be wholly justified and provides that in such cases it would be for the competent authority to prescribe such proportion of pay and dearness allowance as it would deem fit. Rule 54(4), while referring to a situation falling under clause (2), contemplates that in such an eventuality, the period of absence from duty shall be treated as a period spent on duty for all purposes. Rule 54(5) stipulates that if the case falls under clause (3), the period of absence shall not be treated as period on duty unless directed by the competent authority to be so treated. Proviso to Rule 54(5) enables the competent authority to treat the period of absence as leave of the kind due to the employee.
9. It is, thus, evident that Rule 54 categorically provides that unless the Government servant has been fully exonerated or his suspension is found to be wholly unjustified, the pay and allowances during the period of absence as well as how the period of absence is to be treated, has to be decided by the competent authority. Until and unless the competent authority decides as to how the period of suspension is to be reckoned, there cannot be any assumption that on reinstatement of the suspended employee, he would automatically be entitled to the benefit of the entire service during the period of suspension as if he was on duty throughout this period.
10. Learned counsel for the respondents also submitted that Rule 54(5) is not applicable to the case at hand as it relates to absence from duty and none of the respondents have been charged for absence from duty and they are in fact facing criminal proceedings. We find no merit in this submission as the words absence from duty used in Rule 54(5) refers to the absence of employee from duty on account of his compulsory retirement, suspension, dismissal or removal as referred to in clause 54(1). The Rule 54(5) has to be read in conjunction with Rule 54(1) and the words of Rule 54(5) cannot be taken in isolation and read out of context.
11. Rule 54 does not provide for any situation where the pay and allowances would be automatically granted on reinstatement of the employee. On the contrary, Rule 54 specifies that the grant of such benefits would depend either upon full exoneration or suspension being found to be wholly unjustified or where the competent authority passes a specific order with regard to pay and allowances as well as, as to how the period of absence has to be treated. Therefore, the passing of the order, as contemplated under Rule 54(1), would necessarily depend upon the final outcome of the criminal proceedings. There seems to be merit in the stand of the appellants that the revocation of suspension of the respondents during the pendency of the criminal proceedings was only an interim relief to them as the conclusion of the criminal proceedings had been delayed. The action of the appellants in reinstating the respondents while reserving the right to pass final order as to how the period of absence would be treated after the decision of the criminal cases, cannot be said to be in violation of Rule 54 or any other Rule. It would also be difficult for the appellants to pass final order as to how the period of absence will be treated in the absence of any knowledge about the outcome of the criminal proceedings. The decision of the court in the criminal proceedings would certainly have a bearing as to how absence of the respondents from duty has to be treated by the competent authority.
12. We may also refer to Rules 29 & 31 of the Rajasthan Service Rules, which read as under:
29. Increment to be drawn as a matter of course unless withheld (Subject to the provisions of Rules 26-A, 27-A and 30), an increment shall ordinarily be drawn as a matter of course unless it is withheld by the authority empowered to withhold such increment in accordance with the relevant provisions of the Classification, Control and Appeal Rules. Any order withholding an increment shall state the period for which it is withheld and whether the postponement shall have the effect of postponing future increments.
31. Service counting for increment in time-scales The following provisions prescribe the conditions on which service counts for increments in a time-scale:-
(a) All duty in a post on a time-scale counts for increments in that time-scale; provided that, for the purpose of arriving at the date of the next increment in that time-scale, the total of all such periods as do not count for increment in that time-scale shall be added to the normal date of increment. An illustration explaining the method of reckoning the date of increment under this rule is given below:-....
(b)(i) Service in another post other than a post carrying less pay referred to in clause (a) of Rule 20, whether in a substantive or officiating capacity, service on deputation out of India and [leave except extraordinary leave taken otherwise than on medical certificate] shall count for increment in the time-scale applicable to the post [on] which the Government servants holds a lien as well as in the time-scale applicable to the post, or posts, if any, on which he would hold a lien had his lien not been suspended.
(ii) All [leave except extraordinary leave taken otherwise than on medical certificate] and the period of deputation out of India shall count in the time-scale applicable to a post in which a Government servant was officiating at the time he proceeded on leave or deputation out of India and would have continued to officiate but for his proceeding on leave or deputation out of India:
[Provided that the competent authority to whom the powers are delegated may order that the extraordinary leave shall count for increments under clauses (i) and (ii) above.]
(c) If a Government servant while officiating in a post or holding a temporary post on a time-scale of pay is appointed to officiate in a higher post or to hold a higher temporary post, his officiating or temporary service in the higher post shall, if he is re-appointed to the lower post or is appointed or re-appointed to a post on the same time-scale of pay count for increments in the time-scale applicable to such lower post. The period of officiating service in the higher post which counts for increment in the lower post is, however, restricted to the period during which the Government servant would have officiated in the lower post but for his appointment to the higher post. This clause applies also to a Government servant who is not actually officiating in the lower post at the time of his appointment to the higher post but who would have so officiated in such lower post or in a post on the same time-scale of pay had he not been appointed to the higher post.
(d) Foreign Service counts for increments in the time scale applicable to:-
(i) the post in Government service on which the Government servant concerned holds a lien as well as the post, posts or, if any on which he would hold a lien had his lien not been suspended;
(ii) the post in Government service in which the Government servant was officiating immediately before his transfer to foreign service, for so long as he would have continued to officiate in that post or a post on the same time-scale but for his going on foreign service; and
(iii) any post to which he may receive officiating promotion under Rule 143 below for the duration of such promotion.
(e) Joining time counts for increment:
(i) If it is under clause (a) of rule 127 in the time-scale applicable to the post on which a Government servant holds a lien or would hold a lien had his lien not been suspended as well as in the time-scale applicable to the post, the pay of which is received by a Government servant during the period; and
(ii) If it is under clause (b) of rule 127 in the time-scale applicable to the post/posts on which the last day of leave before commencement of the joining time counts for increments.
Explanation.For the purpose of this rule the period treated as duty under sub-clause (b) clause (8) of rule 7 shall be deemed to be duty in a post if the Government servant draws pay of that post during such period.
13. It is evident from reading of Rule 29 that the increments would ordinarily be drawn as a matter of course unless withheld. The use of word ordinarily does contemplate extraordinary situations where the increment could be denied to the employee. Rule 31 stipulates the condition, the fulfillment of which shall entitle the employee to increment. It categorically provides that all duty in a post on a time scale shall count for increment. It is, thus, necessary that the employee shall have to be on duty for that period to be counted towards increment. In a case of suspension, the employee cannot be said to be on duty and it is for the competent authority to pass a specific order after reinstatement, as to how the period, when he was not on duty, is to be treated in terms of Rule 54. Rule 54 read in conjunction with Rules 29 & 31 of the Rajasthan Service Rules leaves no manner of doubt that until and unless a specific order is passed by the competent authority as to how the period of absence is to be treated in cases which do not fall in the category of complete exoneration or suspension being wholly unjustified, the period of absence cannot be treated as period in service merely because the order of suspension has been revoked.
14. The judgments cited by the learned counsel for the respondents are distinguishable on facts and are not applicable to the instant case. The judgment in Vijay Kumar Agarwal's case(supra) pertained to the case of an IAS Officer, whose suspension had been revoked but no order had been passed as to how the period of suspension was to be treated. The High Court, while referring to Rule FR 54-B applicable therein held that as no order had been passed within reasonable time of reinstatement of the officer, he would be entitled to full pay and allowances. In that case, the Supreme Court had earlier passed an order directing grant of full salary for the period of suspension from 1988 to 1996. The question, which has arisen before the Supreme Court was as to whether the order of revocation of suspension is bad when no order is passed as to how the period of suspension is to be treated. It was held by the Supreme Court that the order per se would not be bad and in such situations, at the most the employee would be entitled to full salary. In the instant case, the appellants have categorically mentioned in the order reinstating the respondents/writ petitioners that the order, as to how the period of suspension is to be treated, would be passed after the conclusion of the criminal proceedings.
15. In the case of Brij Lal Bundel (supra), the enquiry against a Judicial Officer had concluded and he was censured and reinstated. It was held that once the censure had been awarded, it would amount to double jeopardy if the increments were withheld. The competent authority had passed the order that the period of suspension would be treated as spent on duty only for the purpose of pension. The Division Bench had dwelled on the nature of the charges against the Judicial Officer before coming to the conclusion that his claim for full pay and dearness allowance during suspension period was justified as non grant of increments would also affect his pension. However, the Division Bench rejected the claim of the petitioner therein for full pay and dearness allowance during suspension period by holding that the denial thereof during the suspension period, in the facts of the case, cannot be said to be arbitrary or unjustified so as to warrant any interference on judicial side. It was only to safeguard the pension of the petitioner therein that the Division Bench directed that the entire period of suspension would be counted for increments. It is also apparent that Rule 31 which stipulates that entire period on duty would count towards increments was not brought to the notice of the Division Bench. In the instant case the proceedings, which are pending against the respondents, have not concluded and it is on account of its delay that the competent authority has passed an order of their reinstatement purely as an interim measure to avoid any hardship to them.
16. We may refer to the judgment of the Supreme Court in the case of State of Punjab vs. Jaswant Singh Kanwar (supra) wherein it has been held that suspension is a temporary deprivation of office or privilege and during its operation, the official functions and the privileges are kept in abeyance and are subject to the penalty which may be imposed by the authorities. The increments and selection grade are incidence of service and cannot be earned during the period of suspension. It has also been held that the privileges and benefits attached to the office are temporarily suspended unless the period of suspension is considered to be period spent on duty. It has been specifically held that the consequence of suspension is to temporarily suspend the relations between employee and employer and therefore, the employee is not entitled to increments during this period as it is period not spent on duty. It was further held that grant of increments without the period of absence having been treated as spent on duty by the competent authority would not only be illegal but also defeat the very purpose of levying penalties and would also jeopardise the public interest and administration of justice.
17. Reference may also be made to the case of Depot Manager, A.P. State Road Transport Corporation, Hanumakonda vs. V.Venkateswarulu & Anr. [1994 Supp(2) SCC 191] wherein while interpreting the regulations applicable thereto, inter alia, Regulation 21 which is similar to Rule 54 of the Rajasthan Service Rules, it was held that the High Court was unjustified in holding that on acquittal and reinstatement, an employee, without further scrutiny, becomes entitled to full salary for the period he remained under suspension. Although, Regulation 18 which provided for suspension of an employee on account of pendency of a criminal case had been deleted, the Supreme Court held that Regulation 21 would be equally applicable to an employee, who remained under suspension because of investigation/trial of a criminal charge.
18. We may also refer to judgment in the case of Greater Hyderabad Municipal Corporation vs. M.Prabhakar Rao [(2011) 8 SCC 155] wherein it was held that even where acquittal in the criminal proceedings is due to lack of evidence, the competent authority can decide whether such employee deserves any salary during the period of suspension and if so, then to what extent. In that case, the respondent therein had been acquitted of the charge of illegal gratification as the complainant had turned hostile and it was not proved as to for what purpose the said amount had been paid, although it had been proved that the amount had been received by the officer. The order of the competent authority declining him relief of back wages during the suspension period, was held to be justified. It was held as under:
8. Sub-rule (3) of F.R. 54B extracted above, thus, vests power on the authority competent to order reinstatement to form an opinion whether suspension of a Government servant was wholly unjustified and if, in its opinion, the suspension of such Government servant is wholly unjustified, such Government servant will be paid full pay and allowances to which he would have been entitled, had he not been suspended. The proviso to Sub-rule (3) of F.R. 54B, however, states 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 then 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. In other words, even where the competent authority is of the opinion that the suspension was wholly unjustified, the Government servant may still not be entitled to be paid the whole pay and allowances, but may be paid such pay and allowances as may be determined by the competent authority.
9. The rationale, on which Sub-rule (3) of F.R. 54B is based, is that during the period of suspension an employee does not work and, therefore, he is not entitled to any pay unless after the termination of the disciplinary proceedings or the criminal proceedings the competent authority is of the opinion that the suspension of the employee was wholly unjustified. This rationale has been explained in clear and lucid language by a three-Judge Bench of this Court inUnion of India and Ors. v. K.V. Jankiraman and Ors. [(1991) 4 SCC 109]. At page 121 in Para 26 P.B. Sawant, J, writing the judgment for the Court in the aforesaid case further observed:
26...However, there may be cases where the proceedings, whether disciplinary or criminal, are, for example, delayed at the instance of the employee or the clearance in the disciplinary proceedings or acquittal in the criminal proceedings is with benefit of doubt or on account of non-availability of evidence due to the acts attributable to the employee etc. In such circumstances, the concerned authorities must be vested with the power to decide whether the employee at all deserves any salary for the intervening period and if he does, the extent to which he deserves it. Life being complex, it is not possible to anticipate and enumerate exhaustively all the circumstances under which such consideration may become necessary. To ignore, however, such circumstances when they exist and lay down an inflexible rule that in every case when an employee is exonerated in disciplinary/criminal proceedings he should be entitled to all salary for the intervening period is to undermine discipline in the administration and jeopardize public interests.
10. It will be clear from what this Court has held in Union of India and Ors. v. K.V. Jankiraman and Ors. (supra) that even in cases where acquittal in the criminal proceedings is on account of non-availability of evidence, the authorities concerned must be vested with the power to decide whether the employee at all deserves any salary for the intervening period, and if he does, the extent to which deserves it. In the aforesaid case, this Court has also held that this power is vested in the competent authority with a view to ensure that discipline in administration is not undermined and public interest is not jeopardized and it is not possible to lay down an inflexible rule that in every case where an employee is exonerated in the disciplinary/criminal proceedings he should be entitled to all salary during the period of suspension and the decision has to be taken by the competent authority on the facts and circumstances of each case.
19. We are, therefore, of the considered view that the order of the Single Bench deserves to be set aside as the action of the appellants in directing the reinstatement as an interim measure and reserving the right to pass order as to how the period of suspension would be treated upon the conclusion of the pending trial is in consonance with the provisions of Rules 54, 29 & 31 of the Rajasthan Service Rules.
In the chart furnished by the Additional Advocate General indicating the status of cases wherein the respondents are facing trial, Birbal Singh is stated to have been acquitted. If that be so, we direct the appellants to pass appropriate order for the period of his suspension expeditiously, in case this has not already been done.
20. In the result, these appeals are allowed and the orders of the Single Bench are set aside. We, however, direct the appellants/State of Rajasthan to take all necessary steps to expedite the trials in the cases involving the respondents since some of the trials are stated to be pending for over a decade.
(ANUPINDER SINGH GREWAL),J. (AJIT SINGH),ACTING C.J. Mohit
All corrections made in the judgment/order have been incorporated in the judgment/order being emailed. Mohit Tak, P.A