K. Paothing vs Chairman, Life Insurance Corporation of India and Others

B.N. Singh Neelam, J.—This writ appeal is so directed against the judgment passed by the learned Single Judge dated 26.6.95, in Civil Rule No. 72(K)/94 by virtue of which the learned Single Judge was pleased as to dismiss the Civil Rule Petition so preferred by the present Appellant/writ Petitioner Shri K. Paothing.

The short facts giving rise to the said Civil Rule was that the present Appellant, Shri K. Paothing, was serving as an Assistant Administrative Officer in Life Insurance Corporation of India, hereinafter referred to as LIC in its Dimapur branch in the State of Nagaland and because of the Appellant/writ Petitioner being arrested on 26.12.90 in connection with Dimapur East Police Station Case No. 18(12)/90 which was in connection with a case so lodged u/s 21/22 of the NDPS Act, he was so suspended from the service in exercise of the powers under regulation 36 of the Life Insurance Corporation (Staff) Regulations, 1960 hereinafter to be referred as the Regulation. The said suspension to him was with effect from 26.12.90 and during the period of his suspension, he was being paid the subsistence allowance.

The said Criminal case so lodged which was numbered as G.R. Case Na 753/90 was disposed of by the learned trial Court on 26.11.92, convicting one Shri Khetovi Sema, but as far as the writ Petitioner was concerned, he was so acquitted being given the benefit of doubt. After passing of the said judgment by the learned trial Court in the said Criminal case in the background of his being acquitted being given the benefit of doubt, the LIC authorities, revoked the suspension order on 21.5.93 and accordingly the writ Petitioner resumed his duties as Asstt. Administrative Officer on 4.6.93. The LIC authorities, it further transpires, treated the period from 26.12.90 to 8.2.91 in case of the writ Petitioner to be his on Privileged Leaved giving all the amenities with regard to the full payment of the salaries and allowances but he was not paid for the period from 9.2.91 to 3.6.93 which was treated as Extra-ordinary leave and the aforesaid intimation to this effect was communicated to the writ Petitioner a copy of which is filed and marked as exhibit 3. A representation petition was so filed by the writ Petitioner before the LIC authorities on 13.8.93, for reviewing the previous decision so taken treating the period from 9.2.91 to 3.6.93 treating him to be on Extra-Ordinary Leave (EOL) but the said representation petition so filed for review was rejected and communicated to the writ Petitioner on 22.3.94. It is after the rejection of the said representation petition that the Civil Rule was so filed attracting particularly the provisions of Rule 38 of the Regulations and claiming that since the writ Petitioner was so acquitted, he was entitled for full pay and allowances particularly as per the provisions of Rule 38(a) of the said Regulations of the LIC. The learned Single Judge by assigning reasons finding no merit in the said Civil Rule petition vide the impugned order dated 26.6.95, rejected the petition which has given rise to this writ appeal.

The Appellant/Petitioner''s case is that the LIC authorities had erred in starting the period from 9.2.91 to 3.6.93, i.e. 846 days as on extra ordinary leave has which the Appellant is being deprived of the salaries and allowances to be his being on extra-ordinary leave because Rule 38(a) of the Regulations speaks of the sell pay and allowances to the employee in case of his being honorably acquitted. In the instant case, it can well be said to be an acquittal on the grounds of absence of the evidence against him. The reinstatement of the Appellant in service was also Claimed, in pursuance of his acquittal by the Criminal Court. The non-granting in the relief so sought for, it is further claimed in this writ appeal, has deprived the Appellant of the wages not given for the period from 9.2.91 to 3.6.93 the increment also for the said period not allowed and by treating the period from 26.12.90 to 8.2.91 as Privilege Leave, the LIC authorities have even deprived the Appellant disentitling him as to take any leave in future exhausting all his leave earned.

Mr. H. Roy, the learned Counsel assisted by Mr. C.T. Jamir, Mr. N. Singha and Mr. R.C. Roy, Advocates on behalf of the Appellant, submitted that by the plain pleading of the judgment of acquittal, a copy of which is filed, it will transpire that it was case of no evidence against the present Appellant and that being the position, though by acquitting him, the learned trial Court has mentioned with regard to his being acquitted giving benefit of doubt, but in the background of the facts and circumstances of this case, he is entitled for the payment of the full salary and allowance as per the provisions contained under Regulation 38(a) of the Regulation, 1960. In support of his this contention on behalf of the Appellant, reliance is placed on a reported case 1988 (2) GLR 332 Shri Krishna Mohan v. State of Tripura. It is submitted that the Division Bench of this Court while disposing of the said matter held that, if the suspension of an employee was only for the purpose of Criminal case so pending and no separate departmental proceeding was so initiated which is also the case here and if the Criminal trial ends in acquittal even on the basis of benefit of doubt, after the revocation of the suspension order and when the employee is reinstated the employee is entitled to get his full salary. Another imported case so cited on behalf of the Appellant is Jogendra Garabadu and Others Vs. Lingaraj Patra and Others, It is submitted in this context by particularly referring to the Head Note "C" that in the present circumstance, it can shall be said to be the acquittal of the Appellant by the trial Court in the said Criminal case on merit and the judgment of acquittal so passed because of the lack of evidence against him. On this ground and on the grounds so mentioned in this memo of appeal, hence the prayer is that the impugned judgment be set aside and the LIC authorities/Respondents be rather directed as to make full payment of the salaries and allowances to the present Appellant/writ Petitioner for the period of his being remaining in suspension.

The Respondents are represented by the learned Counsel, Mr. B.R. Dey, assisted by Mr. K.K. Nandi and Mr. H. Talukdar, Advocates. On behalf of the Respondents, it is pointed out by particularly referring to the provisions of Regulations 38(a) and (b), which are detailed in the judgment of the learned Single Judge which need not be repeated that the case of the present Appellant/writ Petitioner comes under the category of Regulation 38(b) and that being the position the matter was so accordingly taken-up by the authorities and the best possible relief was so granted by treating certain period giving the Appellant Privilege Leave (PL) and the rest of the period of 846 days was, as per the norms, treated as to be his being on Extra-Ordinary Leave (EOL) for which he was not entitled to any payment. In support of his this contention on behalf of the Respondent, a reported case is also cited, i.e. AIR 1994 552 (SC) It is submitted that the apex Court almost in a similar circumstance has decided that in case of an employee in a Criminal Court being acquitted giving benefit of doubt and the decision of the employer not to treat the suspension period as on duty and not to grant full pay and allowances for certain period cannot be assailed because in such circumstance, the said acquittal, if acquittal is made by giving benefit of doubt, can on no account be said to be honorable acquittal. Lastly, it is submitted on behalf of the Respondents that the case and situation would have been different if the present Appellant/writ Petitioner would have preferred an appeal against the judgment of acquittal so given to him giving him the benefit of doubt, as to remove that stigma claiming clean acquittal by moving the matter before the appropriate Criminal appellate Court which has not been done in the instant case giving fatal blow to the claim so made by the Appellant for treating the said trial Court judgment which is of acquittal giving benefit of doubt, to be an acquittal honorably given which on no account can be so accepted.

After hearing both sides'' lawyers, taking into consideration the fact discussed above also keeping in mind the reported cases so cited on behalf of both the sides, the only point for consideration is that as to whether the judgment of acquittal so passed by the learned trial Court acquitting die present Appellant/writ, Petitioner giving him the benefit of doubt can entitle him as have the benefits so contained under Regulation 38(a) of the LIC (Staff) Regulations, 1960?

We are not repeating the provisions of Regulations 38(a) and (b) because the same is detailed even in the impugned judgment of the learned Single Judge which has made it clear that such benefit for getting full salary and allowances for the period under suspension can only be availed in case the employee is honorably acquitted, In the background of the said provisions so contained in the Regulations 1960, let us now go through the operative portion of the judgment so passed by the learned trial Court in the said Criminal case. The relevant portion of the same is quoted below:

.... On hearing prosecution and defense counsel and on perusal of the case record and submissions of accused Khetavi Sema, I find no reasons/grounds/evidences against accused Inspector Akum Ao and K. Paothing Tangkhul to convict u/s 21 NDPS Act or under any other Section of law as such I did not find sufficient evidence to convict the accused persons, viz., inspector Akum Ao and K. Taagkhul and accordingly I have acquitted accused Inspector Akum Ao and K. Paothing Tangkhul on benefit of doubt....

By the plain reading of the operative portion of the judgment so passed by the trial Court, it transpires that the Appellant/writ Petitioner is acquitted being given the benefit of doubt because the learned trial Court did not find sufficient evidence to convict him and the Inspector Akum Ao. In that background, particularly in the background of the recently reported case as referred by the learned Counsel for the Respondents AIR 1994 552 (SC) it can well be said that such acquittal on no account can be said to be an honorable acquittal as contemplated under Regulation 38(a) of the LIC (Staff) Regulations, 1960. That being the position, the employer in the instant case, the LIC authorities power with regard to deciding the matter for his payment of the salary and allowances for the suspended period is unassailable which thus can not be challenged and in that light, after reinstating him, the PL and EOL so granted which was so also challenged in the representation for review and not accepting can well be said to be a direction given by the employer which does not require any interference. However, before parting with, we will like to quote particularly paragraph 15 of the judgment under reference cited on behalf of the Respondents, i.e., AIR 1994 552 (SC) which runs as under:

We have already pointed out the effect of the relevant provisions of Regulations 39, 46 and 47. The said regulations read together, leave no manner of doubt that in case of an employee who is arrested for an offence, as in the present case, his period of absence from duty is to be treated as not being beyond circumstances under his control. In such circumstances, when he is treated as being under suspension during the said period, he is entitled to subsistence allowance. However, the subsistence allowance paid to him is liable to be adjusted against his pay and allowances if at all he is held to be entitled to them by the competent authority. The competent authority while deciding whether an employee who is suspended in such circumstances is entitled to his pay and allowances or not and to what extent, if any, and whether the period is to be treated as on duty or on leave, has to take into consideration the circumstances of each case. It is only when such employee is acquitted of all blame and is treated by the competent as being on duly during the period of suspension that such employee is entitled to full pay and allowances for the said period. In other words, the Regulations vest the power exclusively in the Bank to treat the period of such suspension on duty or on leave or otherwise. The power thus vested cannot be validly challenged. During this period, the employee renders no work. He is absent for reasons of his own involvement in the misconduct and the Bank is in no way responsible for keeping him away from his duties. The Bank, therefore, cannot be saddled with the liability to pay him his salary and allowances for the period. That will be against the principle of ''no work, no pay'' and positively inequitable to those who to work and earn their pay. As it is, even during such period, the employee earns subsistence allowance by virtue of the Regulations. In the circumstances, the Bank''s power in that behalf is unassailable.

Consequently in almost similar circumstance, this writ appeal fails. No separate order as to costs.