M. Mohan vs The Commissioner of Tiruchirapalli Municipal Corporation

D. Hariparanthaman, J.—The short question that arises for consideration is as to whether the petitioner would be deprived of the wages for

the period of suspension, when the respondent regularised the period of suspension, particularly the criminal action was dropped and there was no

punishment in the departmental proceeding. The petitioner is a Male Nursing Assistant employed by the respondent from 30/10/1982.

On 17/9/1991, he was arrested by the Sub-Inspector of Police of Thillai Nagar Police Station, Tiruchirapalli, alleging that the petitioner and six

others attempted to paste posters bringing hatred and contempt against the Government of India. A case was registered against them under

Sections 124A, 153 (A) and (B) of IPC in Crime No. 186 of 1991 on the file of Thillai Nagar Police Station. He was remanded to judicial

custody on 18/9/1991. He came out on bail on 9/10/1991.

He was placed under suspension by an order dated 13/11/1991 on the ground that he remained in prison for more than 48 hours.

He was also issued charge memos dated 8/10/1991 and 26/9/1995 alleging that he remained absent and he was arrested by Police for

involvement in a criminal case.

After investigation, the criminal action was dropped by the Police. The Investigating Officer filed action drop report dated 16/7/1996 before the

learned Judicial Magistrate No. 5, Tiruchirapalli. The learned Judicial Magistrate No. 5, Tiruchirapalli, passed an order dated 16/7/1996 accepting

the report of the investigating Officer and thereby the criminal action was dropped.

Though the criminal action was dropped, the petitioner was not restored to duty and he was continued to remain under suspension.

Hence the petitioner filed W.P. No. 13738 of 1999 questioning the order of suspension. Only thereafter, the respondent passed an order dated

18/2/2000 revoking the suspension order. It is stated therein that the suspension is revoked without prejudice to continue the departmental action.

In these circumstances, the petitioner withdrew W.P. No. 13738 of 1999 and an order was passed by this Court on 29/1/2007, permitting the

petitioner to withdraw the writ petition.

Since the period of suspension was not regularised, he filed W.P. No. 10979 of 2006 praying to regularise the period of suspension from

17/9/1991 to 21/2/2000. The respondent took a stand that the departmental action is still pending and therefore, the regularisation of service for

the suspension period could not be decided at that point of time. Hence this Court directed the respondent to inform the Court as to what order

has been passed on the said issue. When the matter was listed on 27/6/2007, this Court was informed that the final order was passed on

21/6/2007 relating to the period of suspension. In these circumstances, the writ petition was dismissed on 21/6/2007 giving liberty to the petitioner

to challenge the aforesaid order.

This writ petition is filed questioning the order dated 21/6/2007. As per the impugned order, the period of suspension is regularised in the

following manner.

According to the petitioner, since the criminal action was dropped and no punishment was imposed in the departmental action, the entire

period of suspension can be regularised and he shall be paid wages for the entire period of suspension. According to the petitioner, the petitioner

shall not be deprived of wages and also the respondent is not correct in treating some suspension period as earned leave on his credit.

On the other hand, the respondent filed counter affidavit stating that there is no infirmity in the impugned order.

Heard both sides.

As rightly contended by the learned counsel for the petitioner, when the criminal action was dropped and no punishment was imposed in

departmental proceeding, the respondent cannot deprive wages for the period of suspension and also the respondent cannot treat some portion of

the period of suspension as earned leave that was on his credit.

It is a different matter, if the departmental action resulted in imposition of penalty. In fact, no departmental action was proceeded after the

issuance of charge sheet. No enquiry was conducted. No witness was examined and no documents were marked and no enquiry report was

obtained. Straightaway, the respondent passed the impugned order, regularising the period of suspension and deprived wages from 11/12/1991 to

21/2/2000 and also treating the earlier period as earned leave with wages.

I am of the view that the impugned order is highly arbitrary and violative of principles of natural justice. Further more, the same is opposed to

my decision in the order dated 21/9/2010 made in W.P. No. 48009 of 2006. Paragraph 7 of the aforesaid order is extracted hereunder:-

The petitioner was under suspension for the period from 18/1/1991 to 12/5/1996 when he faced criminal prosecution. The criminal prosecution

ended in acquittal. Hence as per ruling 9 of the Fundamental Rules 54 B, the petitioner is entitled to regularisation of his period of suspension. The

aforesaid ruling 9 of Fundamental Rule 54 B is as follows:-

Where a Government Servant is places under suspension in view of the fact that complaint against him of a criminal offence is under investigation or

trial, and the Government Servant is subsequently reinstated in service on his acquittal by the Court either on merits or on the ground that the

charge against him has not been proved or by giving benefit of doubt or on any other technical ground, he must be regarded as having been

prevented from discharging his duties and the period of his absence including the period of suspension shall be treated as duty for all purposes and

he shall be paid full pay and allowances which he would have been entitled to, had he not been under suspension, or dismissed or removed or

compulsorily retired from service. In view of the aforesaid Fundamental Rule, the petitioner is entitled to regularisation of the period of suspension.

For all the aforesaid reasons, the writ petition is allowed. The impugned order dated 21/6/2007 is quashed, in so far as depriving the petitioner''s

wages for the period of suspension and treating some suspension period as earned leave with wages. The respondent is directed to pay wages for

the period of suspension within a period of eight weeks from the date of receipt of a copy of this order. No costs.