Central Administrative Tribunal - Delhi
Shri Jagdamba Singh vs Union Of India Through on 15 December, 2014
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH O.A. No.603/2014 Reserved On:04.12.2014 Pronounced On:15.12.2014 HONBLE MR. G. GEORGE PARACKEN, MEMBER (J) HONBLE MR. SHEKHAR AGARWAL, MEMBER (A) Shri Jagdamba Singh S/o Late Shri Kedar Nath Singh Aged about 44 years R/o E-3/602, Gali No.17, Sonia Vihar, Delhi-94. Applicant By Advocate: Shri T.D. Yadav. Versus 1. Union of India through General Manager, Northern Railway, Headquarter, Baroda House, New Delhi. 2. The Dy. CpO (HQ), Northern Railway, Headquarters Office, Baroda House,New Delhi. 3. The Chief Mechanical Engineer, Northern Railway, Headquarters Office, Baroda House, New Delhi. Respondents By Advocate: Shri S.K. Srivastava. ORDER
G. George Paracken, Member(J) Applicant is aggrieved by the impugned order of the Respondents dated 24.06.2013 treating the period of his suspension from 07.06.2011 to 06.02.2013 as dies-non and the subsequent order dated 06.11.2013 denying him full pay and allowances for the aforesaid period on the ground that he was acquitted by the Criminal Court giving him benefit of doubt.
2. The brief facts of the case: Applicant while working as a Khallasi with the Respondents, an FIR No.68/2011 was filed against him on 28.05.2011 under Section 376 and 506 of Indian Penal Code at PS Sonia Vihar, Delhi. The allegation against him was that he committed rape on Smt. Neelam who was his tenant. As a result, he was placed under suspension vide order dated 07.06.2011 and he continued to remain under suspension during the period of proceedings in the criminal case initiated against him before the Additional Sessions Judge, Kardardooma Courts (Special Fast Track Court) Karkardooma Courts, Delhi. However, in the said criminal case he was acquitted vide order dated 15.01.2013 on the ground that the prosecution could not prove that the accused committed the offence. Accordingly, he was acquitted giving him the benefit of doubt. The operative part of the said judgment reads as under:-
12. In view of above reasons and discussion, it is held that prosecution could not prove its case against accused Jagdamba Singh beyond reasonable suspicion and shadow of doubt that he committed rape of the posecutrix or he threatened her to kill her or her son. Therefore, it is held that the prosecution could not prove that accused committed offences punishable u/s 376/506 IPC. Consequently, by giving him benefit of doubt, accused is acquitted for the offences punishable u/s 376/506 IPC.
3. Thereafter, the Applicant made a representation to the Respondents on 05.02.2013 requesting them to revoke his suspension and the Respondents, vide order dated 11.02.2013, revoked it with effect from 06.02.2013. Thereafter, he made representations on 01.04.2013, 03.04.2013, 17.04.2013 and 04.10.2013 requesting them to pay the full salary and allowances for the period of suspension and to grant him the increments which have become due, during that period. He has also requested to regularize the period of suspension as duty for all purposes. However, the Respondents, vide the impugned order dated 24.06.2013, held that the period of his suspension from 28.05.2011 to 05.02.2013 as dies-non. They have also passed another order dated 06.11.2013 stating that he will not be entitled for the benefit of pay and allowances during the period of his suspension as his acquittal in the criminal case was after giving him benefit of doubt. He has challenged the aforesaid orders in this OA and sought an order quashing them. He has also sought a direction to the Respondents to treat/regualrise the suspension period from 07.06.2011 06.02.2013 and treat it as duty for all intent and purposes. He has also sought a direction to the Respondents to pay him the full pay and allowances and to grant him increments during the suspension period.
4. As far as the order dated 24.06.2013 treating period of service as dies-non is concerned, the learned counsel for the Applicant has submitted that during the period of suspension, the master servant relationship between the Respondents and the Applicant was not severed and its effect was only to the extent that he was permitted to perform his duties during whereas dies-non involves break in service.
5. Further, he has submitted that once an accused in a criminal case has been acquitted whether by giving benefit of doubt or not, he is to be treated as acquitted from service and all the benefits as admissible to acquitted person should be made available to him. In this regard he has relied upon the judgment of the Punjab & Haryana High Court in the case of Shashi Kumar Vs. Uttri Haryana Bijli Vitran Nigam 2005 (1) ATJ 154 wherein it has been held that reinstatement cannot be denied to an employee on the ground that he was acquitted by giving benefit of doubt in a criminal case. The court also ordered that in such cases, the employee concerned has to be reinstated in service with all consequential benefits including back wages. While delivering the said judgment, the High Court has relied upon the earlier judgment of a Division Bench of the Madras High Court in the case of Union of India Vs. Jayaram AIR 1960 Mad. 325 wherein it has been held that the terms honourable acquittal or fully exonerated are unknown in the Code of Criminal Procedure or in Criminal Jurisprudence. The relevant part of the Madras High Courts judgment in Jayarams case (supra) reads as under:-
There is no conception like honourable acquittal in Criminal P.C. The onus of establishing the guilt of accused is on the prosecution, and if it fails to establish the guilt beyond reasonable doubt, the accused is entitled to be acquitted.
Clause (b) of Article 193 of the Civil Service Regulations which says that when a Government servant who was under suspension is hnourably acquitted, he may be given the full salary to which he would have been entitled if he had not been suspended applies only to the case of departmental enquiry.
Where the servant was suspended because there was a criminal prosecution against him, and he was acquitted therein, and reinstated he is entitled under the general law, to the full pay during the period of the suspension. To such a case Article 193 (b) does not apply.
The aforesaid judgment of the Madras High Court was also considered and followed by the Punjab and Haryana High Court in the case of Jagmohan Lal Vs. State of Punjab through Secretary to Punjab Government Irrigation and Others AIR (54) 1967 Punjab and Haryana 422 (Punj.). In that case, on acquittal, the petitioner was reinstated in service but his period of suspension was not treated as the period spent on duty. In the said judgment also the High Court has held that the moment the court is not satisfied regarding the guilt of the accused, he is acquitted and whether he is acquitted after giving the benefit of doubt or for that reasons, the result is that his guilt is not proved and the only words known to the Code are discharged or acquitted. The relevant part of the said judgment reads as under:-
The interpretation which has been put by the Government on the rule is incorrect. The blame which attached to the petitioner was that there was a criminal charge against him under which he was standing his trial. The moment he is acquitted of the charge, he is acquitted of the blame. In criminal law, the Courts are called upon to decide whether the prosecution has succeeded in bringing home the guilt to the accused. The moment the Court is not satisfied regarding the guilt of the accused, he is acquitted. Whether a person is acquitted after being given a benefit of doubt or for other reasons, the result is that his guilt is not proved. The Code of Criminal Procedure does not contemplate honourable acquittal. The only words known to the Code are 'discharged' or 'acquitted'. The effect of a person being discharged or acquitted is the same in the eyes of law. Since, according to the accepted notions of imparting criminal justice, the Court has to be satisfied regarding the guilt of the accused beyond a reasonable doubt, it is generally held that there being a doubt in the mind of the court the accused is acquitted.
The Gujarat High Court has also followed the judgment of the Madras High Court in the case of Jayaram (supra) in the case of Ramsinhji Viraji Rathod, Parmanand Society Vs. The State of Gujarat and Another 1971 SLR 473. The relevant part of the said judgment is reproduced as under:-
7Clause (b) of Article 193 of the Civil Service Regulations, which was under consideration before the Madras High Court was substantially similar to our Rule 152, with this difference, that instead of the words fully exonerated the word were honourably acquitted. With respect we are in agreement with the reasons of Rajamannar, C.J. and in our opinion, it is not open to the authorities concerned to bring in the concept of honourable acquittal or full exoneration so far as the judgment of the Criminal Court is concerned. In a criminal trial the accused is only called upon to meet the charge levelled against him and he may meet the charge (a) by showing that the prosecution case against him and is not true or (b) that it is not proved beyond reasonable doubt; or (c ) by establishing positively that his defence version is the correct version and the prosecution version is not correct. In any case of these three cases, if the Court comes to the conclusion that the prosecution has failed to establish its case beyond reasonable doubt or that the prosecution case is not true or that the defence version is correct and is to be preferred as against the prosecution version, the Criminal Court is bound to acquit the accused. The accused is not called upon in every case to establish his complete innocence and it is sufficient for the purposes of criminal trial that he satisfies the Court that the prosecution has not established its case beyond reasonable doubt. Since he is not called upon to prove a positive case, the concept of honourable acquittal or full exoneration can have no place in a criminal trial and it is because of this reasoning that we agree with the observations of Rajamannar, C.J. in Jayarams case, AIR 1960 Mad. 325.
6. Shri Yadav has also relied upon an order of the Punjab and Haryana High Court (DB) in the case of Bhag Singh Vs. Punjab and Sind Bank 2006 (1) SCT 175 wherein it has been held that where the acquittal is for want of any evidence to prove the criminal charge, mere mention of benefit of doubt by the Criminal Court is superfluous and baseless. Such an acquittal is an honourable acquittal. In the said case, the High Court has relied upon its earlier judgment in the case of Jagmohan (supra). The relevant part of the said judgment reads as under:-
In both the cases, in spite of the clear observations that there was no evidence against the petitioner, the trial Court observed that the accused are given benefit of doubt and acquitted of the charges farmed against them. Relying on the aforesaid observation, the respondents have denied the benefit of full pay and allowances to the petitioner. In our opinion, the mere use of the expression benefit of doubt or not proved beyond reasonable doubt by the trial Court or the Appellate Court, cannot be permitted to convert an acquittal on the ground of no evidence, to something less than that. The concepts of Honourable Acquittal, fully exonerated or acquitted of blame are all unknown to the Criminal Procedure Code, 1973. Therefore, the term benefit of doubt cannot detract from the impact of the acquittal.
7. He has also relied upon a judgment of the Apex Court in the case of State of Punjab and Others Vs. Shambhu Nath Singal and Others 1996 (32) ATC 237. The fact in that case was that the first Respondent therein had been discharged by the Criminal Court for want of proper sanction and thereafter he was reinstated in service. Consequently, it was held that he was entitled for full salary and allowances for the period during which he was kept under suspension.
8. He has further relied upon an order of the co-ordinate Bench of this Tribunal in OA No.1706/2004 - R.K. Gupta Vs. U.O.I. & Others decided on 11.02.2005 wherein it has been held that treating the acquittal of the Applicant as not an honourable acquittal and denying the payment applying Rule 54(4) was wrong. In the said order, the Tribunal relied upon the judgment of the Supreme Court in the case of Andhra Bank Vs. W.T. Seshachalam 2004 (2) SLJ (SC) 254 wherein it has been held that when criminal proceedings is launched after investigation by an outside agency and the employee is acquitted of the criminal charge, he would be entitled to full pay and allowances as subsistence allowance for the period of suspension. The Tribunal has also relied upon the judgment of the Delhi High Court in Commissioner of Police and Others Vs. Om Kumar and Others 2004 (3) SLJ 272 wherein it was held that if one is acquitted by the court, the entire period of suspension is to be treated as duty for all purposes.
9. The Respondents have filed their reply reiterating their decision taken in the impugned orders.
10. We have heard the learned counsel for the Applicant Shri T.D. Yadav and the learned counsel for the Respondents Shri A.K. Srivastava. In our considered view, the authority which has passed the impugned order dated 24.06.2013 is totally ignorant of the concept of dies-non. It is well settled that by suspending an employee his service does not cease to exist. During the period of suspension, he is only kept out of his duty for a specific period and gets subsistence allowance which is less than the pay and allowance. During the period of suspension, he is also entitled for other usual benefits including annual increments and the subsistence allowance is enhanced. Therefore, the impugned order dated 24.06.2013 is absolutely illegal and wrong and it is accordingly quashed and set aside. We are also of the considered view that the other impugned order dated 06.11.2013 is also not sustainable in law. It is not necessary for us to restate the orders of the Supreme Court of India, High Court of Madras, Punjab and Haryana High Court, Gujarat High Court and this Tribunal relied upon by the Applicants counsel Shri Yadav. All those judgments equally apply in the present case also. Therefore, the Respondents could not have denied him full pay and allowances for the period of suspension on the ground that his acquittal in the criminal case was on benefit of doubt.
11. We, accordingly, allow this OA and direct the Respondents to treat the period of suspension from 07.06.2011 to 06.02.2013 as duty for all purposes including pay and allowances. He is also entitled for increments from the due dates occurred during the period of suspension. The Respondents shall pass appropriate orders implementing the aforesaid directions within a period of 2 months from the date of receipt of a copy of this order.
12. There shall be no order as to costs.
(SHEKHAR AGARWAL) (G. GEORGE PARACKEN) MEMBER (A) MEMBER (J) Rakesh