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Judgment
Bhaskar Bhattacharya, J.—By this writ application, a Constable of the Railway Protection Force, has challenged the appellate order confirming the punishment given by the Senior-Security. Commissioner. R.P.F., South Eastern Railway. Kharagpur and communicated to the Divisional Security Commissioner. R.P.F., South Eastern Railway. In this writ application although the petitioner has prayed for setting aside the suspension order, charge-sheet, enquiry report, punishment order as well as the appellate order and has also prayed for declaring Rule 153.5 and 154.2 of the R.P.F. Rules, 1987 as ultra vires being violative of Article 14 and Article 311(2) of the Constitution of India. Mr. Roy Chowdhury, the learned Counsel appearing on behalf of the petitioner at the time of hearing has raised a different pure question of law.
According to Mr. Roy Chowdhury, the petitioner having been suspended pending disciplinary proceeding Hitttated by the employer involving an offence which might end in major penalty, but ultimately the petitioner having been given a minor penalty, it was the duty of the disciplinary authority to declare that the period of suspension should be treated as period of duty in view of clarification given by the government vide G.I. Dept. Per & TRg., OM No. 11012/15/851 Estt. (A), dated the 3rd December, 1985.
There is no dispute that in this case according to the charges framed against the petitioner, he could be awarded major punishments which according to Rule 148.2 of Railway Protection Force, Act, 1957 are (a) dismissal from service, (b) removal from service, (c) compulsory retirement from service and (d) reduction in rank or grade. The disciplinary authority has although found the petitioner guilty of the charges but has imposed a minor punishment as provided in Rule 148.3 by reduction to a lower stage in the existing scale of pay. However, the period of suspension, according to the order of punishment, should be treated to be as such thereby meaning that during the period of suspension he should not get full pay and allowances.
Mr. Roy Chowdhury, the learned Counsel appearing on behalf of the petitioner, by placing reliance upon the clarification issued by the government as mentioned above has contended that the Fundamental Rules being applicable to the petitioner, a member of the force, in view of the clarification, his client 4s entitled lo get such benefit and as such, the orders impugned should be modified to that extent The clarification issued by the government to fundamental Rule 54(B) is quoted below:
"Period of suspension to-be treated as duty if minor penalty only is imposed.-Reference is invited to O. M. No. 43/56/64-AVD. dated 22-10-1964 [not printed]. containing the guidelines for placing Government servants under suspension and to say that these instructions lay down, inter alia, that Government servant could be placed under suspension, if a prima facie case is made out justifying his prosecution or disciplinary proceedings which are likely to end in his dismissal, removal or compulsory retirement. These instructions thus make it clear that suspension should be resorted to only in those cases where a major penalty is likely to be imposed on conclusion of the proceedings and not a minor penalty. The Staff Side of the Committee of the National Council set up to review the CCS (CCA) Rule, 1965, had suggested that in cases where a Government servant, against whom an inquiry has been held for the imposition of a major penalty, is finally awarded only a minor penalty the suspension should be considered unjustified and full pay and allowances paid for suspension period Government have accepted this suggestion of the Staff Side. Accordingly, where departmental proceedings against a suspended employee for the imposition of a major penalty finally end with the imposition of a minor penalty, the suspension can be said to be wholly unjustified in terms of FR 54-B and the employee concerned should, therefore, be paid full pay and allowances for the period of suspension by passing a suitable order under FR 54-B.
These orders will become effective from the date of issue. Past cases already decided need not be reopened."
The aforesaid contention of Mr. Roy Chowdhury has been seriously disputed by Mr. Ghosh, the learned Counsel appearing on behalf of the Union of India. According to Mr. Ghosh, the petitioner having been found guilty of the charges, disciplinary authority did not commit any illegality in not directing payment of full pay and'' allowances during the period of suspension. According to him merely because the authority has taken a lenient view by not imposing major penalty, for the leniency shown, the petitioner cannot get the benefit of clarification of the Fundamental Rule 54(B). Mr. Ghosh, in this connection, placed strong reliance upon the following decisions of the Supreme Court.
Reserve Bank of India. New Delhi vs. Bhopal Singh Panchal reported in 1993 (8) S.L.R. 544.
The District Manager, A.P. State Road Transport Corporation Bhimavaram Depot, Bhimavaram, A.P. vs. N. Lakshminarayana & Anr., reported in 1994 (2) SLR 358.
Krishnakant Raghunath Bibhavnekar vs. State of Maharashtra & Ors., reported in AIR 1996 SC 1434.
After hearing the learned Counsel for the parties and after going through the materials on record. I find that in view of Section 10 of the Railway Protection Force Act, 1957. the petitioner should be deemed to be railway servant and, as such, the provisions of Fundamental Rule apply to the case of the petitioner. The Central Government having clarified Fundamental Rule 54 (B) in clear term indicating that in a case where although charges were framed against a delinquent officer which could result in major punishment but if, in fact, the authority ultimately imposes minor punishment, in such a case, the delinquent officer should get the benefit of full pay and allowances during the period of suspension. Thus, the petitioner is entitled to the benefit of aforesaid clarification.
In the decisions cited by Mr. Ghosh public servants were charged with criminal offences but ultimately were acquitted at the trial. Under such circumstances, the Supreme Court was of the view that such acquittal did not stand in the way of the employer in enquiring into the alleged misconduct and in appropriate cases could even pass direction for non-payment of full pay and allowances during the period of suspension due to involvement in minor case. It is, therefore, clear that the cases relied on by Mr. Ghosh have no application to a case whether the clarification given to Fundamental Rule 54 (B) is clearly applicable. When a government servant is prosecuted for commission of defalcation of public funds and fabrication of records and said prosecution had culminated into acquittal, be cannot be held entitled to reinstatement with grant of all consequential benefits along with backwages as a matter of course. If the conduct alleged is the foundation for prosecution, though it may end in acquittal on appreciation or lack of sufficient evidence, according to Supreme Court, two courses are open to the disciplinary authority. (1) it may enquire into misconduct unless, the selfsame conduct was subject of charge and on trial the acquittal was recorded on a positive finding that the accused did not commit the offence at all; but if the acquittal is on benefit of doubt, appropriate action may be taken thereon. (2) even otherwise, the authority may, on reinstatement after following the principle of natural justice, pass appropriate order including treating suspension period as period of not on duty. I have already indicated that those decisions cannot have any application to a case like the present one where the petitioner has been given minor punishment on departmental proceeding and the clarification to Fundamental Rule 54(B) is clearly applicable. This is not a case of acquittal of criminal charge from a Criminal Court.
I, thus, find substance in the contention of Mr. Roy Chowdhury that the authorities below ought to have passed an order in conformity with the aforesaid clarification indicating that the petitioner would be entitled to full benefit of pay and allowances during the period of suspension. I, thus, modify the punishment order to this extent that the petitioner will be entitled to get full benefit of pay and allowances during the period of suspension. The other part of the punishment is not interfered with as there is nothing illegal in the disciplinary proceeding and the finding recorded on the basis of material is quite reasonable, justifying no interference. The writ application is, thus, disposed of with the aforesaid order.
In the facts and circumstances, there will be, however no order as to costs.
Later
Let xerox-certified copy of the order we given to the parties within one week from the date of making of such application.