Ghulam Nabi Baba vs State of Jammu and Kashmir

S. Murtaza Fazl Ali. J.

This is an application for an appropriate writ in order to quash that part of the order of the Government dated 3-10-1962 by which the period

of suspension of the Petitioner has been directed to be treated as leave of whatever kind due.

The petition arises in he following circumstances:

The Petitioner was working as Block Development Officer in village Tral in 1957. Allegations of corruption and mis-appropriation of public funds

having been made against him the matter was referred to the police under FIR No. 34 of 1957 as a result of which the police registered a case

under Sections 409/420 R.P.C. against the Petitioner. During the course of investigation, the Petitioner was arrested by the police and was

released on bail by the order of the Sessions Judge on 8-7-1957. According to the allegations made by the Petitioner in his supplementary

affidavit, he was detained in prison for seven days before he was released on bail. After investigation, the police sub-milted a charge sheet against

the Petitioner splitting up the allegations into four separate cases and the challans were produced in the Court of the Additional District Magistrate

Ananlnag. After taking the evidence of the prosecution before charge, the Additional District Magistrate Ananlnag by his order dated 15-11-1961

discharged the Petitioner in all the challans. Thereafter the Petitioner was reinstated but he was not given the arrears of his salary during the period

of his suspension and this period was to be treated as leave.

It was contended by the learned Counsel for the Petitioner that his case clearly fell within the ambit of Rule 109 of the Jammu and Kashmir Civil

Service Regulations, and the Government was not entitled to withhold his full pay during the period of his suspension. The Advocate General

pointed out that as the order of the Government was passed prior to October 1962, the case of the Petitioner would be governed by the

provisions of Rule 109 of the Jammu and Kashmir CSR as it stood before October 1962. On this point there appears to be no controversy

between the parties.

Rule 109 of the Jammu and Kashmir Civil Service Regulations, runs as follows:

A servant of the State committed to prison either for debt or on a criminal charge, should be considered as under suspension from the date of his

arrest and not allowed to draw any pay until the termination of the proceedings against him, when an adjustment of his allowances should be made

according to the circumstances of the case, the full amount being given only in The event of the officer being acquitted of blame or if the

imprisonment was for debt of its being proved that the officer's liability arose from the circumstances beyond his control.

The decision in the present case turns upon the interpretation of the words ""being acquitted of blame"" used in this Rule. The contention of the

Petitioner is that these words have been used in a wider and literal sense so as to signify that the servant should lie exonerated from the charges or

allegations levelled against him. On the oilier hand, the Advocate General has contended that the word ""Acquittal"" has been used in its well known

legal sense and would not include an order of discharge. No authority directly on the point has been cited by the learned Counsel for the, parties. I

am inclined to agree with the view of the learned Counsel for the Petitioner. It is true that the word ""Acquittal"" has been used in this Rule, but at the

same time the word ""blame"" and not charge or offence has been used herein. This shows that the intention of the Government was to use The word

acquitted"" in a wider and general sense of the term and not in its strictly legal sense. There can be no doubt that under the Code of Criminal

Procedure, there is a sharp distinction between ""Acquittal"" and ""discharge"" and in my view this distinction was not kept in view by the Government

when it framed the aforesaid rules, otherwise the word ""acquitted"" should have been followed by similar words of legal significance like charge,

offence etc. My conclusion is reinforced by the language employed in the preceding Rule 108 Sub-clause (b)(1) wherein the words ""honourably

acquitted"" are used. This provision applies only to departmental proceedings and there can be no question of the application of ""honourable

acquittal"" in the sense in which these words are used in the Code of Criminal Procedure, to departmental proceedings. It is obvious, therefore, that

the word ""acquittal"" as applied to the departmental proceeding would only mean that the servant concerned has been clearly and fully exonerated

of the charges levelled against him. It seems to me, therefore, that the word ""acquitted"" is used in the very sense in which the word ""acquittal"" has

been used in Rule 108 of the Regulations. All that the Government intended was that in order that The Rule should apply three conditions should

be satisfied:

i. That the servant of a state should be committed to prison.

ii. That he should be committed to prison for debt or on a criminal charge.

iii. That in The event of the servant being acquitted of blame, he would be entitled to full amount of his salary during the period of his suspension.

The intention of the Government in my opinion, therefore, clearly was to give benefit of this Rule to any servant once he is exonerated of the

allegations levelled against him. Under the Code of Criminal Procedure, which stood before it was amended, an accused could be discharged u/s

253 Code of Criminal Procedure if upon taking the evidence of the prosecution, the Magistrate found that no case against the accused was made

out. In the instant case, it would appear from the order of the Magistrate, which has been filed by the Petitioner, that he discharged the accused on

the ground that no case was made out against him and that there was no evidence of dishonest intention on his part. The effect of the order of

discharge, therefore, clearly, is that the Petitioner was acquitted or exonerated of the blame or of the allegations which were made against him by

the prosecution. Such a discharge, therefore, in my opinion, is clearly covered by the words ""acquitted of blame"" as used in Rule 109 of the said

Rules. Once this interpretation is placed on the words ""acquitted of blame"" there can be no room for doubt that the Government was not entitled to

withhold the salary of the Petitioner during the period of his suspension. Moreover, it seems to me that where an order of suspension is passed in

view of serious charges levelled against a public servant, the order comes to an end on the termination of criminal proceedings in favour of such

servant. I am fortified in this view by a decision of the Calcutta High Court, Hemanta Kumar Bhattacharjee Vs. Union of India (UOI) and Others, ,

where Sinha J. observed as follows:

If a person is merely suspended he still continues to be in service but is in a state as it were of suspended animation. When the period is over, lie

has simply to be allotted a job. The word 'reinstatement' if used in this respect, is only loosely used and has no legal significance.

It follows, therefore, that when the Petitioner was discharged by the Magistrate and was exonerated of the allegations or charges levelled against

him, the period of suspension came to an end. This being the position, there is no reason, why he would not be entitled to the emoluments to which

he would have been entitled had the order of suspension not been passed. In Shyam Sundar Derey and Others Vs. Union of India (UOI), , it was

clearly held that an employee of the government could not be deprived of his emoluments by an order of suspension which was founded on mere

allegation and which the Government had subsequently withdrawn. In this connection Basu J. observed as follows:

On the other hand, the substantial reliefs prayed for, namely revocation of The order of suspension and re-installment have been conceded, during

the pendency of these applications. But no reason has been assigned as to why the Petitioners should not get their pay and allowances during the

period intervening the suspension and the reinstatement when they have been prevented from rendering their services owing to their suspension

pending infructuous proceedings brought by the Respondent. As matters stand there is no blemish established against the Petitioners with respect

to that period. An employee of the government cannot be deprived of his emoluments by an order of suspension which was founded on mere

allegations and which the government has withdrawn finding it untenable, after the employee has taken resort to a Court of Justice for relief.

A claim for recovery of arrears of salary can, of course, be made only by suit. What the Petitioners seek in The present proceedings is only a

direction to pay. ft is now established that when an order behind a levy is found to be ultra vires mandamus lies for directing the authority to make a

refund: Burmah Construction Co. Vs. The State of Orissa and Others, , The Orient Paper Mills Ltd. Vs. The State of Orissa and Others, . If so,

there is no reason why an authority cannot be directed to pay arrears of pay and allowance which the Petitioner could have earned unless

suspended Without any lawful justification.

In fact, when by the order of discharge, the very basis of the order of suspension disappears, there is no reason why the servant should be

deprived of his full salary during the period of suspension.

In the instant case, on my interpretation of Rule 109 of the Regulations, it is absolutely clear that once the servant is acquitted of blame, he

would be entitled to his full salary during the period of his suspension.

For these reasons, therefore, I would allow this application and quash that part of the order of the Government dated 3-10-1962 which directs

the suspension period of the Petitioner Shri Ghulam Nabi Baba to be treated as leave of whatever kind due. This order is obviously not warranted

by any provisions of the Jammu and Kashmir Civil Service Regulations and is, therefore, not tenable in law.

In these circumstances, it is not necessary for me to issue a writ of Mandumus, but it is sufficient to give a direction to the Respondent

Government to follow the statutory provisions of Rule 109 of the said Regulations in order to grant the Petitioner his emoluments as indicated in this

Rule.

In the circumstances of the case, there will he no order as to costs.