N. Jothilingam vs The District Collector, The Revenue Divisional Officer, Revenue Divisional Officer and Revenue Divisional Officer

T. Raja, J.—This writ petition has been filed by Mr. N. Jothilingam under Article 226 of the Constitution of India, seeking issuance of a writ of mandamus, to direct the second respondent-Revenue Divisional Officer, Namakkal Division to regularize the period of suspension from 20.1.1984 to 31.12.1990 as ''duty period'' with a consequential direction to the respondents to pay the salary dues to the petitioner for the above said period and pass appropriate orders.

Learned counsel for the petitioner submitted that when the petitioner was working as Village Administrative Officer at Patlur village in Tiruchengode Taluk before it was bifurcated from Salem District, was placed under suspension with effect from 20.1.84 on the allegation of embezzlement of Government money as per the proceedings in Roc. No. 19953/83(D) dated 20.1.84 passed by the Sub-Collector, Sankagiri. As the suspension order was kept unrevoked, the petitioner approached the Tamil Nadu Administrative Tribunal by filing O.A. No. 2639 of 1990 and obtained an interim order of stay of suspension. In view of the said order, the suspension order was revoked by the respondents. After the revocation of the suspension order, the petitioner joined duty on 1.1.91. In view of that, the O.A. No. 2639 of 1990 was dismissed as infructuous. After some time, the criminal case initiated against the petitioner in C.C. No. 892 of 1989 also ended in his favour by order dated 29.5.92 passed by the learned Chief Judicial Magistrate, Tiruchengode. Even after the order of acquittal obtained by the petitioner in the criminal case, the respondents, without initiating any departmental proceedings, with a delay of almost four years, issued a charge memo dated 24.8.93 and again, purporting to correct the mistake in the earlier charge memo, issued another charge memo dated 3.8.95. Challenging the above said two charge memos, the petitioner filed O.A. Nos. 5992 of 1993 and 5815 of 1995 and the Tamil Nadu Administrative Tribunal, by a detailed order dated 24.4.2002, quashed both the charge memos dated 24.8.93 and 3.8.95 on the ground that once the criminal prosecution launched against the delinquent ended in acquittal, on the same set of facts, there was no point in proceeding with by serving a charge memo, for the reason that the enquiry officer cannot come to any contra conclusion. Thereafter, the petitioner made a representation to the second respondent to treat the period of suspension from 20.1.84 till 31.12.90 as duty, but there was no response. After waiting for a long time, the petitioner was constrained to come to this Court by filing the present writ petition with the above prayer.

Arguing further, the learned counsel submitted that when it is an admitted case that the petitioner was placed under suspension from 20.1.84 till 31.12.90 and the order of suspension was revoked and subsequently he re-joined duty on 1.1.91, the respondents, in spite of repeated representations, have not passed any order to treat it as duty period. Now the petitioner also retired from service. Therefore, a suitable direction should be issued to the respondents to consider the petitioner''s representation in order to treat the said period as duty period with a further direction to the respondents to pay the service benefits in the light of the Fundamental Rule 54(9). Explaining further, he has stated that as per Fundamental Rule 54(9), a Government servant being placed under suspension in view of the fact that a complaint against him of any criminal offence is under investigation or trial or dismissed or removed from service on the ground of conduct which has led to his conviction on a criminal charge and subsequently, if he is reinstated in service on the basis of the order of acquittal passed by the competent criminal Court either on merits or on the ground that the charge has not been proved against him or by giving benefit of doubt, it must be regarded that he has 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 thereupon, he shall be paid full pay and allowances which he would have been entitled to, had he not been under suspension from service. Since the charge memos dated 24.8.93 and 3.8.95 issued to the petitioner were quashed by the Tamil Nadu Administrative Tribunal by order dated 24.4.2002 in O.A. Nos. 5992 of 1993 and 5815 of 1995, in addition thereto, the Criminal Court had acquitted the petitioner by a detailed order dated 29.5.92 in C.C. No. 892 of 1989, the period of suspension commencing from 20.1.84 till 31.12.90 should be treated as duty period.

Learned Additional Government Pleader appearing for the respondents, after repeating the stand taken in the counter affidavit filed by the second respondent, stated that the petitioner ought not to have come to this Court without making a specific representation to the Revenue Divisional Officer, Tiruchengode, who is the competent authority for the purpose of regulating the service period as envisaged in F.R.54-1B. Adding further, it was stated that since the petitioner was working as Village Administrative Officer of Patlur village in Tiruchengode Taluk coming under the then Salem District, after the bifurcation took place, part of the Sankagiri division has been transferred to the administrative control of the Revenue Divisional Officer, Tiruchengode. Therefore, the petitioner should approach the Revenue Divisional Officer, Tiruchengode for settling his service benefits. On this basis, he prayed for a direction to the Revenue Divisional Officer, Tiruchengode to consider the case of the petitioner.

This Court is unable to agree with the submissions made by the learned Additional Government Pleader for the respondents, for the reason that the petitioner, who was placed under suspension by order dated 20.1.84 passed by the Sub Collector, Sankagiri, had rejoined duty only on 1.1.91 after the said suspension order was revoked. However, in the meanwhile, the petitioner approached the Tamil Nadu Administrative Tribunal by filing O.A. No. 2639 of 1990 challenging the correctness of the suspension order and based on the stay order passed by the Tribunal, the order of suspension was revoked and thereafter the criminal case pending against the petitioner in C.C. No. 892 of 1989 on the file of the learned Chief Judicial Magistrate, Tiruchengode also ended in acquittal by order dated 29.5.92. Thereafter, with a delay of four years, the charge memo dated 24.8.93 was issued. Again one another charge memo dated 3.8.95 was issued purporting to correct the mistake in the earlier charge memo. However, the petitioner came to the Tamil Nadu Administrative Tribunal by filing O.A. Nos. 5992 of 1993 and 5815 of 1995. By order dated 24.4.2002, both the charge memos were quashed on the settled principle that once the criminal prosecution launched against the delinquent ended in acquittal, subsequently, on the same set of facts, there is no point in proceeding with by way of a charge memo though the enquiry officer cannot come to a contra conclusion. Therefore, when the departmental proceedings initiated under the above two charge memos also ended in favour of the petitioner by the order dated 24.4.2002 passed by the Tamil Nadu Administrative Tribunal, the respondents should have considered the case of the petitioner in the light of Fundamental Rule 54(9), which reads as under:-

Where a Government servant is,--

(a) placed under suspension in view of the fact that a complaint against him of any criminal offence is under investigation or trial; or

(b) dismissed or removed from service or compulsorily retired on the ground of conduct which has led to his conviction on a criminal charge 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 has not been proved against him 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.

A mere reading of the above rule clearly shows that an employee who has been placed under suspension in view of the complaint of any criminal offence having been made against him and subsequently if the criminal case has been decided in his favour, followed by reinstatement in service, on his acquittal by the Court either on merits or on the ground that the charge has not been proved against him or by giving the benefit of doubt, he must be regarded as having been prevented from discharging his duties and the period of absence including the period of suspension shall be treated as duty for all purposes and thereupon, he shall be paid with full pay and allowances which he would have been entitled to, had he not been under suspension from service. In that view of the matter, although the counter affidavit states that the petitioner should approach the Revenue Divisional Officer, Tiruchengode for redressal of his grievance, this Court, finding no response from the respondents on his representation dated 21.6.2002, hereby directs the respondents to treat the period from 20.1.84 to 31.12.90 as duty period and settle the service benefits to the petitioner, after deducting the subsistence allowance, if any, paid already, within a period of two months from the date of receipt of a copy of this order. The writ petition stands allowed. No costs.