Delhi High Court
Shiv Kumar vs Maha Nagar Telephone Nigam Ltd. And Ors. on 1 September, 2005
Author: S. Ravindra Bhat
Bench: S. Ravindra Bhat
JUDGMENT S. Ravindra Bhat, J.
1. The petitioner here, in proceedings under Article 226 of the Constitution challenges two orders dated 29.5.2004 and 20.7.2004, issued by the respondents (hereafter 'MTNL).
2. The petitioner an employee of MTNL was prosecuted pursuant to a criminal case registered against him on 27.9.1992. By an order dated 28.9.1992, he was placed under suspension, since he had been arrested in a criminal case. The petitioner was subsequently charge sheeted in the criminal proceedings and tried for offences alleged against him which were that the MTNL's telephones were being fraudulently used for making STD/ ISD calls.
3. In the criminal proceedings culminated in the petitioner's acquittal. The Special Judge by his judgment, doubted the veracity of the story set out in the FIR. It was also held that the evidence did not connect to the acts of commission or omission on the part of two other accused MTNL employees who were apprehended at that time. On the conspectus of these findings, the Court concluded that the petitioner was entitled to the benefit of doubt and acquitted him by its judgment dated 14.7.2003. By insider dated 3.12.2003, the MTNL revoked the suspension order passed by it on 28.9.1992.
4. On 29.5.2004 the petitioner was issued with a notice to show cause why the period of his suspension ought not to be treated as not having spent on duty and confine his entitlement to the subsistence allowances paid during the period of suspension. The petitioner replied to its letter dated 31.5.2004, and resisted the move stating that it was not justified.
5. By the first impugned order dated 27.2.2004, the MTNL confirmed the show cause notice confining the petitioner's benefits to subsistence allowances sanctioned/ paid to him during the period of suspension. The show cause as well as the final orders we premised upon the petitioners being given benefit of doubt in the criminal proceedings.
6. The petitioner has impugned show cause notice and the order on the ground that they are arbitrary and that an acquittal in the circumstances was really a complete acquittal on merits.
7. Learned counsel for the petitioner Mr. R.K. Saini submitted that the petitioner had to suffer doubly on account of a long period of suspension and also undergo the agony of a protracted trial. After having succeeded in the trial and being acquitted, has arbitrarily denied the benefits of his full salary and allowances, on being reinstated by the respondent. Counsel relied upon the judgments of the Supreme Court reported as Union of India v. K.V. Jankiraman, and Mohan Lal v. Unioof India, 1982(1) SLR 573 to show that the benefit of doubt ought not to cloud the application of mind to the facts of any given case by the concerned authority which has to pass an independent order. He submitted that in the present case the charges were not proved by any supporting or legal evidence. Hence, the prosecution was unable to prove the case as per the standard applicable namely, proof beyond reasonable doubt. The mere fact that the Court used the expression "benefit of doubt', ought to be held against the petitioner to deprive him the benefit of full salary for the entire period. Learned counsel also submitted that in the case of three other employees namely, M/s N.R. Singh, J.P.S. Singhal and Balram Yadav, the MTNL had decided grant full salary and allowances for the entire period of suspension. It was submitted that they too had been acquitted like the petitioners. Hence, the denial of a similar benefit is impugned as arbitrary.
8. Learned counsel also relied upon a judgment of the Supreme Court reported as Canara Bank Vs. Official Assignee, Madras to say that wherever serious charges leading to initiation of criminal proceedings are involved, acquittal is one of the factors but not the conclusive or determinative factor, that has to be considered by the Competent Authority while deciding to grant or withhold full salary for the period of suspension. The gravity of the crime alleged and the nature of the service question are also relevant factors.
9. Mr. V.K. Rao learned counsel for the respondent submitted that the impugned order was passed in exercise of a power namely, F.R. 54-B which admittedly enables the concerned authority to determine whether or not to treat particular period of suspension, upon the acquittal of a public servant facing criminal trial, as having been spent on duty. Counsel, stated that the authorities in the present case considered all relevant factors namely, the judgment in question and the other factors while passing the impugned orders.
10. I have my anxious consideration to the present case. The materials on record to show that the petitioner was charged with certain culpable conduct; criminal proceedings were initiated, they dragged on for about 11 years. Ultimately, he was acquitted of all charges. It is no doubt true that the Special Judge in the penultimate paragraph of the judgment used the expression `benefit of doubt'. Nevertheless, at two different places in the body of the judgment, there are observations which show that the Court cast doubts about the truthfulness of the facts set out in the FIR which went into the root of the case. The accused-petitioner was also held not connected to the acts of commission or omission on the part of the two other MTNL employees apprehended at the same time.
11. Apart from the above circumstance, one more important factor which to my mind is relevant, is the undoubtedly long period of time namely, 11 years when the petitioner faced trial. The authorities in this case do not appear to have considered the debilitating impact of a prolonged criminal trial coupled with the suspension of an employee from services, for the corresponding period. Hence, the denial of the salary for the entire period in effect amounts to a penalty to the extent that such an order passed as an administrative measure. I am therefore of the opinion that the order is disproportionate in character.
12. The petitioner had also represented, in the reply to the show cause, that other cases had been dealt with in a different manner and employees were given full salary for the period of suspension. This also is a factor which had to be considered in its appropriate prospective. Having regard to the facts and circumstances of the case, the impugned order does not reflect such consideration. I am, therefore, of the view that the respondents have to reconsider the entire issue.
13. In view of the above discussion, the impugned orders are set aside to the extent that the respondent is directed to reconsider the entire records including the fact that the petitioner was in suspension for a period of about 11 years between 27.9.1992 and 3.12.2003; while doing so, the respondents are further directed to take into account orders passed under FR-54-B in the cases of N.R. Singh, J.P.S. Singhal and Balram Yadav (referred to in the rejoinder in respect of whom order was passed on 29.8.200), and pass a fresh order under FR-54B within a period of six weeks from today.
14. The petition stands disposed off in terms of the above directions. No costs.