Shailendra Kumar Saxena vs State Of Madhya Pradesh And Another

The petitioner before this Court has filed this present writ petition against the order dated 24/12/2016 (Annexure P/12) and order dated 25/02/2017

(Annexure P/15) by which the respondents have passed an order applying the principle of No Work No Pay in respect of the period spent under

suspension by the petitioner ie., w.e.f. 26/4/2014 to 08/07/2015.

Facts of the case reveal that the petitioner is working as Assistant Development Extension Officer and a Crime was registered against him at

Crime No. 286/2013 by the Lokayukta Establishment for offence u/Ss. 7, 13(1)(d) and 13(2) of the Prevention of Corruption Act, 1988.

The petitioner was placed under suspension in exercise of powers conferred under Rule 9(1) of the M. P. Civil Services (Classification, Control and

Appeal) Rules, 1966 by order dated 26/4/2014 and thereafter he has submitted a representation for enhancement of subsistence allowance. The

petitioner was acquitted in the criminal case ie., Special Case No. 12/2014 vide judgment of acquittal dated 13/4/2015. The petitioner thereafter

submitted a representation on 17/4/2015 before the Competent Authority for revocation of his suspension and finally the suspension of the petitioner

was revoked by order dated 8/7/2015. He has submitted his joining on 10/7/2015 and submitted a representation on 21/9/2015 for grant of full salary

and allowances for the period spent under suspension ie., w.e.f. 26/4/2014 to 08/07/2015. Finally respondents have passed an order dated 24/12/2016

(Annexure P/12) rejecting the claim of the petitioner for grant of full salary by applying the principle of No Work No Pay. The petitioner being

aggrieved by the aforesaid order, submitted a representation again on 6/1/2017 and it has been rejected by order dated 25/2/2017.

Mr. L C Patne, learned counsel for the petitioner has argued before this Court that the petitioner is entitled for full salary and allowances for the

period spent under suspension as he has been honourably acquitted. Reliance has been placed upon the Notification issued by the General

Administration Department dated 15/9/1977 and a prayer has been made for grant of full salary. Learned counsel for the petitioner has also placed

reliance upon the judgment delivered by the Jharkhand High Court in the case of Prasenjit Ghosh Vs. The State of Jharkhand reported in 2004 SCC

OnLine Jhar 97; the judgment delivered by the Delhi High Court in the case of Mohan Lal Vs. Union of India reported in ILR (1981) II Delhi 1037;

the judgment delivered by the Bombay High Court in the case of Dattatraya Vasudeo Kulkarni Vs. Director of Agriculture, Maharashtra reported in

(1984 Mh. L.J. 406); the judgment delivered by the Gujarat High Court in the case of Ramsinhji Viraji Rathod Vs. The State of Gujarat and another

reported in 1970 SCC OnLine Guj. 43; and the judgment delivered by the Punjab and Haryana High Court in the case of Lehna Singh Vs. State of

Haryana and another reported in 1999 SCC OnLine P&H 1487. Lastly, learned counsel for the petitioner has placed reliance upon the judgment

delivered by the apex Court in the case of Brahma Chandra Gupta Vs. Union of India reported in (1984) 2 SCC 433.

On the other hand, Mr. Umesh Gajankush, learned Dy. Advocate General for the respondent State has vehemently argued before this Court that

the petitioner was placed under suspension on account of registration of a criminal case for offence u/Ss. 7, 13(1)(d) and 13(2) of the Prevention of

Corruption Act, 1988. He was caught red-handed accepting bribe and the Phenolphthalein Test was positive, there was a transcript also, however, on

technical ground he has been acquitted and by no stretch of imagination, the suspension can be said to be wholly unjustified, as provided under

Fundamental Rules 54B and, therefore, only because the petitioner has been acquitted on some technical ground, he is certainly not entitled for full

salary and allowance keeping in view Fundamental Rules 54B governing the field. He has also argued before this Court that the respondents were

justified in passing the impugned order by taking into account the principle of No Work No Pay, as the petitioner has not worked during the period he

was under suspension and he has already been paid subsistence allowance also. It has also been argued that the respondents while passing the

impugned order has treated the period under suspension, to be the period spent under duty, except for payment of full salary. Learned counsel for the

respondent has prayed for dismissal of the Writ Petition.

Heard learned counsel for the parties at length and perused the record. Â

Undisputedly, a criminal case was registered against the petitioner for allegedly accepting bribe. He was caught red-handed and the result of theÂ

Phenolphthalein Test was also positive. There was a transcript also in respect of the demand, however, based upon the fact that certain witnesses

have turned hostile, the petitioner has been acquitted. The impugned orders have been passed by the respondents dated 24/12/2016 (Annexure P/12)

and order dated 25/02/2017 (Annexure P/15) and for the period spent under suspension, the payment of salary has been confined to payment of

subsistence allowance, already received by the petitioner by applying the principle of No Work No Pay. However, for all other purposes the period

spent under suspension has been treated as the period spent under duty.

In the present case, the petitioner was placed under suspension keeping in view Rule 9 of the M. P. Civil Services (Classification, Control and

Appeal) Rules, 1966. Rule 9(1) of the M. P. Civil Services (Classification, Control and Appeal) Rules, 1966 reads as under :

(1) The appointing authority or any authority to which it is subordinate or the disciplinary authority or any other authority empowered in that behalf

by the Governor by general or special order, may place a government servant under suspension -

(a)where a disciplinary proceeding against him is contemplated or is pending; or

(b)where a case against him in respect of any criminal offence is under investigation, inquiry or trial:

Provided that a Government servant shall invariably be placed under suspension when a challan for a criminal offence involving corruption or other

moral turpitude is filed after sanction of prosecution by the Government against him.

The aforesaid statutory provision of law empowers the Disciplinary Authority to place a Government servant under suspension in case a criminal

offence is under investigation, inquiry or trial. The Proviso also provides that in case where a challan has been filed for criminal offence involving

corruption or other moral turpitude, the Government servant shall invariably be placed under suspension. Facts of the case further reveal that the

petitioner was placed under suspension as the criminal case involving corruption was registered against him and challan was filed and, therefore, the

order placing the petitioner under suspension passed by the Disciplinary Authority, was rightly passed in the matter.

Undisputedly, the petitioner has been acquitted by the Special Judge vide judgment of acquittal dated 13/04/2015 passed in S.T.No. 12/2014.

The Fundamental Rules made by the Secretary of the State in Council under Section 96-B of the Government of India Act including the orders

issued by the Secretary of the State, Government of India and Auditor General and the Supplementary Rules framed by the local Government deals

with regularisation of the period spent under suspension. The Fundamental Rules came into force w.e.f. 1/1/1992 are very much applicable in the

present case. Rule 54B of the Fundamental Rules provides for passing of an order after conclusion of criminal case / departmental enquiry in respect

of Government servant who was under suspension.

Fundamental Rule 54-B(1), (2), (3) and (4) reads as under :

54B. (1) When a Government servant who has been suspended is reinstated or would have been so reinstated but for his retirement on

superannuation while under suspension, the authority competent to order reinstatement shall consider and make a specific order.

(a) regarding the pay and allowances to be paidto the Government servant for the period of suspension ending with reinstatement or the date of his

retirement or superannuation as the case may be ; and

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

(2) Notwithstanding anything contained in Rule53, where a Government servant under suspension dies before the disciplinary or Court proceedings

instituted against him are concluded, the period between the date of suspension and the date of death shall be treated as duty for all purposes and his

family shall be paid the full pay and allowances for that period to which he would have been entitled had he not been suspended, subject to adjustment

in respect of subsistence allowance already paid.

(3) Where the authority competent to orderreinstatement is of the opinion that the suspension was wholly unjustified, the Government servant shall,

subject to the provisions of Sub-rule (8), to 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 reasons directly attributable to the Government servant it may, after giving him an opportunity to make his representation within sixty

days from the date on which the communication in this regard is served on 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.

(4) In a case falling under Sub-rule (3) the periodof suspension shall be treated as a period spent on duty for all purposes.

The orders regularising the period under suspension are required to be passed taking into account Rule 54B of the Fundamental Rules. In case of

the petitioner, the respondents have passed an order treating the entire period on duty, however, the difference of salary has not been paid to the

petitioner.

In the case of Lehna Singh Vs. State of Haryana and another reported in 1999 SCC OnLine P&H 1487, a criminal case was registered against

the petitioner therein for offence u/S. 409, 420, 467, 468 and 120 of the Indian Penal Code and the petitioner therein was acquitted. He was also under

suspension during the trial and the Punjab & Haryana High Court in the aforesaid case has held that the petitioner therein is entitled for full salary.

In the case of Ramsinhji Viraji Rathod Vs. The State of Gujarat and another reported in 1970 SCC OnLine Guj. 43, the Gujarat High Court was

dealing with a case of an employee who was prosecuted for an offence u/S. 409 of the Indian Penal Code. He was also ultimately acquitted and the

Gujarat High Court has also directed payment of full salary for the period spent under suspension.

In the case of Dattatraya Vasudeo Kulkarni Vs. Director of Agriculture, Maharashtra reported in (1984 Mh. L.J. 406), again the Government

servant was prosecuted for an offence u/S. 409 of the Indian Penal Code and the Bombay High Court has also directed payment of full salary to the

Government servant therein.

In the case of Mohan Lal Vs. Union of India reported in ILR (1981) II Delhi 1037, a Constable of Delhi Police was prosecuted for an offence u/S.

294 of the Indian Penal Code and after his acquittal, it was held that he is entitled to full pay and allowances and consequential benefits.

In the case of Prasenjit Ghosh Vs. The State of Jharkhand reported in 2004 SCC OnLine Jhar 97, decided by the Jharkhand High Court, the

petitioner therein who was working as a Typist was prosecuted u/S. 498A and 306 of the Indian Penal Code and after his acquittal, the Jharkhand

High Court has directed payment of salary to the petitioner therein.

It is true that various High Courts in respect of prosecution of Government servants and their subsequent acquittal, has directed payment of salary

to the employee concerned. The judgments delivered by the various High Courts do not have a binding effect upon this Court. They do have

persuasive value and keeping in view the facts involved in all the cases cited before this Court, this Court is of the considered opinion that full salary

cannot be granted in a mechanical manner and facts of each and every case are required to be looked into.

Learned counsel for the petitioner has also placed reliance upon the judgment delivered by the apex Court in the case of Brahma Chandra Gupta

Vs. Union of India reported in (1984) 2 SCC 433. It was a case where a permanent UDC was placed under suspension in 1962 pursuant to a criminal

prosecution launched against him and during the period of suspension he was paid subsistence allowance. The trial Court convicted him as a result he

was dismissed from service and on appeal he was acquitted and he was reinstated in service. The employer in order to decide payments for his

suspension period divided the period of suspension into two parts : first being from the date of suspension to the date of acquittal and the second being

from the date of acquittal to the date of his reinstatement. With regard to the later part, the concerned authority directed payment of full salary after

giving credit for the suspension allowance that was drawn by him and for the first part, concerned authority was of the view that the appellant cannot

be said to be fully exonerated and, therefore, directed payment of 3/4 of his salary. However, a Civil Suit was filed by the employer claiming full salary

in the first part also and prayed for a decree of Rs.3595.07 only. The Civil Suit was pending for a period of 15 years and after 15 years of litigation,

the suit was decreed and the decree was passed for a sum of Rs.3595.07. The suit was decreed with cost. The Union of India preferred an appeal

in the matter and the High Court has reversed the judgment and decree of the trial Court and dismissed the suit. After being unsuccessful before the

High Court, the employee has preferred a Special Leave Petition and the apex Court has allowed the SLP. The judgment of the apex Court reveals

that the apex Court was dealing with a situation wherein a Civil Suit was filed only for a sum of Rs.3595.07 and it took 15 years for the trial Court

to decide the Civil Suit. The apex Court in the aforesaid case has categorically observed that the employee was suspended in 1962 and in 1983 the

matter has reached the apex Court only with a prayer for a decree of Rs.3595.07. It was also observed by the apex Court that during the passage

of time the purchasing power of the aforesaid amount must have been considerably reduced. It was also observed that the employee has already

superannuated and must receive a measure of socioeconomic justice, meaning thereby, the apex Court has certainly not at all held in unequivocal

terms that an employee who has been exonerated is automatically entitled for backwages.

This Court is of the considered opinion that by no stretch of imagination it can be held that the petitioner's suspension was wholly unjustified. On

the contrary, it was justified keeping in view the petitioner's involvement in a criminal case of corruption, and in which investigation was carried out

and he was prosecuted, though acquitted on technical ground. The State Government was well within its domain to place the petitioner under

suspension keeping in view Rule 9 of the M. P. Civil Services (Classification, Control and Appeal) Rules, 1966 and after his acquittal, the State

Government has rightly passed the impugned orders declining the prayer of the petitioner to grant him full salary by applying the principle of No Work

No Pay.

This Court is of the considered opinion that suspension of the petitioner was justified in the peculiar facts and circumstances of the case and no

case for interference is made out in the matter in respect of the impugned orders passed by the State Government.

The Writ Petition is accordingly dismissed. No order as to cost.