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Judgment
N. Paul Vasanthakumar, C.J. - This writ petition is filed by the petitioner, who was appointed as class-IV employee in the year 1971 and
thereafter was promoted as Clerk in the year 1974 and against whom criminal prosecution was launched under section 409/467/477-A RPC.
After investigation, the challan was presented before the Court of Sessions Judge Udhampur and the trial Court by judgment dated 29.04.1998
acquitted the petitioner of all the charges holding that there is absolutely nothing in the evidence of the prosecution from which it can be said that
accused directly or indirectly committed any misappropriation and the case of the prosecution has not been clearly and completely unfolded by its
witnesses before the Court.
The appeal against acquittal was preferred in Criminal Acquittal No. 33/1998 before this Court which was dismissed by judgment dated
28.03.2001. During the period of registration of criminal case and trial, the petitioner was suspended and after acquittal by the trial court he was
reinstated into service on 06.04.1999 and posted as typist in the Court of Principal District and Sessions Judge Udhampur. The petitioner was
kept under suspension for 15 years 03 months and 01 day and was only paid subsistence allowance, though he was attending the duties in the
court of Principal District Judge Poonch and thereafter at Udhampur.
A departmental enquiry was also conducted against the petitioner in which also, he was fully exonerated of the allegations and an order to that
effect was passed by the then Chief Justice on 12.05.2010. The petitioner submitted an application on 12.01.2011 for treating the period of
suspension as on duty as he retired on 30.11.2010. An order was passed by the then Chief Justice on 04.08.2011 stating that total period of 15
years, 3 months and 01 day be treated as on leave of whatever kind due to him and for rest of the period, if any, he is treated as on leave without
pay. The said order is challenged by the petitioner by contending that he having been exonerated fully in the departmental proceedings and fully
acquitted in the criminal case, the entire period of suspension be treated as on duty as the impugned order is contrary to the statutory provisions,
namely, Regulation 108-B of the Jammu and Kashmir Civil Service Regulations 1956 and the same is liable to be set aside.
We have considered the rival submissions made by learned senior counsel Mr. Sunil Sethi, with reference to the order passed by the trial Court
and the Division Bench judgment of this Court in Acquittal Appeal No. 33/1998 dated 28.03.2001 as well as the orders passed by the then Chief
Justice on 12.05.2010 fully exonerating the petitioner of the allegations levelled against him.
It is an admitted fact that the petitioner was proceeded in criminal court and departmental action and in both the cases, he was fully acquitted
and exonerated. It is also not in dispute that during the period of suspension, he attended the office and was paid subsistence allowance. Regulation
108-B of the Jammu and Kashmir Civil Service Regulations 1956 is the relevant statutory regulation which deals with regulating the period of
suspension which reads thus:
(i) When a Government servant who has been dismissed, removed, compulsorily retired before attaining the age of superannuation or suspended
is reinstated the authority competent to order the reinstatement shall consider and make a specific order:
a. Regarding the pay and allowance to be paid to such Government Servant for the period of his absence from duty and
b. Whether or not the said period shall be treated as a period spent on duty.
(ii).Where the authority mentioned in sub rule (i) is of opinion that the Government servant has been fully exonerated or in the case of suspension,
that it was wholly unjustified the Government servant shall be given the full pay and allowances to which he would have been entitled had he not
been dismissed, removed, compulsorily retired before attaining the age of superannuation or suspended, as the case may be. The period of
absence from duty shall be treated as period spent on duty.
On perusal of the above Regulation, it is evident that when a Government servant has been fully exonerated, he shall be given full pay and
allowances to which he would have been entitled, if he has not been dismissed, removed or compulsorily retired before attaining the age of
superannuation or suspended as the case may be. This Court in the judgments reported in Balwant Rai v. State of J&K and Ors. JKJ Soft
JKJ/10230 : 1992 KLJ 340 and in 1991 JKLR 171 (Abdul Majid Khan v. State and ors) considered the similar issue and held that, if a
government servant is exonerated from the allegations, the entire suspension period shall be treated as on duty and he is entitled to get all benefits
as if he was not suspended.
In the light of the said judgments as well as Regulation 108-B of the Jammu and Kashmir Civil Service Regulations governing the issue, the writ
petition is allowed and the petitioner is held entitled to get the entire suspension period as duty period with all consequential benefits, like promotion
which has been given to his juniors as per the rules and the difference in salary after adjusting the subsistence allowance already paid. The benefits
arising out of this order shall be worked out and paid to the petitioner within a period of 3 months from the date of receipt of copy of this order by
the respondents. No costs.