Mukhtar Khan vs The State of Madhya Pradesh

Sanjay Yadav, J.—Heard.

Order dated 21.02.2007 passed by the Excise Commissioner, respondent No.2 is being questioned vide this writ petition. Vide impugned order, petitioner''s claim for the salary of the period from 16.05.1989 to 13.12.2004 has been declined.

Facts leading to passing of impugned order, briefly are that, while employed as Driver with the respondents, a criminal case vide crime No.547/89 for an offence under Section 392 of the Indian Penal Code and section 25 of the Arms Act, 1959 was registered. With the institution of criminal case the petitioner was placed under suspension by order dated 06.12.1989. In the criminal case the petitioner was acquitted by order dated 14.01.2000. Whereafter, by order dated 06.12.2004 the suspension of the petitioner was revoked on the petitioner''s giving an undertaking that he will not claim the salary of the period under suspension.

Later on petitioner filed a representation for grant of salary for the period under suspension, which was turned down by impugned order holding that except for the purpose of pension, gratuity and subsistence allowance, the petitioner shall not be entitled for any monetary benefit of the period under suspension.

It is contended that being a regular employee his services are governed by the Madhya Pradesh Fundamental Rules, therefore, incumbent it was upon the competent Authority to have considered the claim of the petitioner as per fundamental rules on his acquittal. Instead the petitioner was forced to give an undertaking of foregoing the wages of the period under suspension, which being contrary to law will not bind the petitioner. It is urged that being governed by the Rule of law, the Authorities ought to consider the claim as per Rule.

Respondents on their turn have contradicted the claim and supports the impugned order.

Considered the rival submissions.

The question as to how the period of suspension, where the suspension is because of the criminal prosecution, on its revocation after acquittal of the Government servant, is it to be treated, is governed by Rules, viz., Fundamental Rules 54 B. Sub-rules (1), (3) and (8) of FR 54 B are relevant in the context. These sub rules stipulate:

"F.R. 54-B. (1) When a Government servant who has been suspended is re-instated or would have been so re-instated but for his retirement on superannuation while under suspension, the authority competent to order re-instatement shall consider and make specific order-

(a) regarding the pay and allowances to be paid to the Government servant for the period of suspension ending with re- instatement or the date of his retirement on superannuation, as the case may be, and

(b) whether or not the said period shall be treated as a period spent on duty.

(3) Where the authority competent to order re-instatement is of the opinion that the suspension was wholly unjustified, the Government servant shall subject to the provisions of sub-rule (8), be paid the full pay and allowances to which he would have been entitled had he not been suspended:

Provided that where such authority is of the opinion that the termination of the proceedings instituted against the Government servant had been delayed due to reason directly attributable to the Government servant it may, after giving him an opportunity to make his representation [within 60 days from the date on which the communication in this regard is served in him and after considering the representation, if any, submitted by him direct, for reasons to be recorded in writing that the Government servant shall be paid for the period of such delay only such amount (not being the whole) of such pay and allowances as it may determine.

(8) The payment of allowances under sub- rule (2), sub-rule (3) or sub-rule (5), shall be subject to all other conditions under which such allowances are admissible.

Sub-Rule (1) obligates the competent authority in case where Government servant who was suspended is reinstated to make a specific order (i) regarding pay and allowances to be paid to Government servant for the period of suspension ending with reinstatement (ii) whether or not the said period shall be treated as a period spent on duty. The decision to be taken under sub-rule (1) is bridled with the decision required to be taken under sub-rule (3), i.e., where the suspension is held to be wholly unjustified, then the government servant is entitled for full pay and allowance subject to provisions of sub-rule (8). In other words even executive instructions issued to that effect will hold the field when it comes to payment of full pay and allowances. Whereas sub-rule (1) and sub-rule (3) makes a provision regarding pay and allowances to be paid in the events mentioned therein. Sub-rule 8 provides for payment of allowances contains under which such allowances are payable.

However, in a case where the suspension is held to be wholly justified, an employee will not be benefited of sub-rule (3) and sub- rule (8) of FR 54 B. In such circumstances, the petitioner is not benefited.

Sub-rule (3) of F.R. 54-B cast the discretion in the competent authority to form an opinion whether the suspension of a government servant is wholly unjustified.

In the case at hand, the petitioner was placed under suspension not because of the pending departmental enquiry nor in contemplation of a departmental enquiry. The suspension was because of criminal prosecution launched against the petitioner, such suspension has been held to be a statutory suspension. In Union of India (UOI) Vs. Rajiv Kumar, it is held:

Rule 10 (2) is a deemed provision and creates a legal fiction. A bare reading of the provision shows that an actual order is not required to be passed. That is deemed to have been passed by operation of the legal fiction. It has as much efficacy, force and operation as an order otherwise specifically passed under other provisions. It does not speak of any period of its effectiveness. Rules 10(3) and 10(4) operate conceptually in different situations and need specific provisions separately on account of interposition of an order of Court of law or an order passed by the Appellate or reviewing authority and the natural consequences inevitably flowing from such orders. Great emphasis is laid on the expressions "until further orders" in the said sub- rules to emphasise that such a prescription is missing in Sub-rule (2). Therefore, it is urged that the order is effective for the period of detention alone. The plea is clearly without any substance because of Sub-rule 5(a) and 5(c) of Rule 10. The said provisions refer to an order of suspension made or deemed to have been made. Obviously, the only order which is even initially deemed to have been made under Rule 10 is one contemplated under Sub-rule (2).The said provision under Rule 10(5)(a) makes it crystal clear that the order continues to remain in force until it is modified or revoked by an authority competent to do so while Rule 10(5)(c) empowers the competent authority to modify or revoke also. No exception is made relating to an order under Rules 10(2) and 10(5)(a). On the contrary, specifically it encompasses an order under Rule 10(2). If the order deemed to have been made under Rule 10(2) is to loose effectiveness automatically after the period of detention envisaged comes to an end, there would be no scope for the same being modified as contended by the respondents and there was no need to make such provisions as are engrafted in Rule 10(5)(a) and (c) and instead an equally deeming provision to bring an end to the duration of the deemed order would by itself suffice for the purpose."

And are held to be justified even when the employee/accused is exonerated of charges and acquitted (Please see M. Gopala Krishna Naidu Vs. State of Madhya Pradesh, .

In Ranchhodji Chaturji Thakore vs. Superintendent Engineer, Gujarat Electricity Board, Himmatnagar (Gujarat) & another it is held:

"3. The reinstatement of the petitioner into the service has already been ordered by the High Court. The only question is whether he is entitled to back wages. It was his conduct of involving himself in the crime that was taken into account for his not being in service of the respondent. Consequent upon his acquittal, he is entitled to reinstatement for the reason that his service was terminated on the basis of the conviction by operation of proviso to the statutory rules applicable to the situation. The question of back wages would be considered only if the respondents have taken action by way of disciplinary proceedings and the action was found to be unsustainable in law and he was unlawfully prevented from discharging the duties. In that context, his conduct becomes relevant. Each case requires to be considered in its own backdrop. In this case, since the petitioner had involved himself in a crime, though he was later acquitted, he had disabled himself from rendering the service on account of conviction and incarceration in jail. Under these circumstances, the petitioner is not entitled to payment of back wages. ... ..."

In Union of India (UOI) and Others Vs. Jaipal Singh, it is held :

"4. ... If prosecution, which ultimately resulted in acquittal of the person concerned was at the behest or by department itself, perhaps different considerations may arise. On the other hand, if as a citizen the employee or a public servant got involved in a criminal case and if after initial conviction by the trial court, he gets acquittal on appeal subsequently, the department cannot in any manner be found fault with for having kept him out of service, since the law obliges, a person convicted of an offence to be so kept out and not to be retained in service ... ... "

The principle then was followed in Baldev Singh Vs. Union of India (UOI) and Others, in following terms :

"7. As the factual position noted clearly indicates the appellant was not in actual service for the period he was in custody. Merely because there has been an acquittal does not automatically entitle him to get salary for the concerned period. This is more so, on the logic of no work no pay. It is to be noted that the appellant was terminated from service because of the conviction. Effect of the same does not get diluted because of subsequent acquittal for the purpose of counting service. The aforesaid position was clearly stated in Ranchhodji Chaturji Thakore v. Supdt. Engineer, Gujarat Electricity Board."

True it is that these were not the cases regarding FR 54 B; however, the suspension, the circumstances which led to such suspension and the consequence in the event of the revocation was dwelt upon in these cases, wherein it is unanimously held that in case the suspension is because of the involvement of the Government employee in a criminal case not at the instance of the department, a revocation of suspension after his acquittal will not entitle him for back-wages as such suspension cannot be said to be unjustified.

In the circumstances of present case the authority concerned, was well justified in treating the period of suspension as non-duty for the purpose of the benefit and not a break in service.

Therefore, no interference is caused. Petition fails and is dismissed. No costs.