Sri Upendranath Barik vs Orissa State Electricity Board and Another

P.K. Mohanti, J.—The Petitioner while serving as a Cashier under the Sub-Divisional Officer, Electrical No. 1, Bhubaneswar was placed under suspension with effect from 27-9-1968. (vide Annexur-1). The suspension was due to arrest by police for misappropriation of cash. On 22-6-1972 he was convicted u/s 409, Indian Penal Code and sentenced to undergo R.I. for three months and also to pay a fine of Rs. 500/ -. On 23.6-1972 a departmental proceeding was started against him for the misappropriation of cash. On 21-12-1972 he was dismissed from service with retrospective effect from 22-6-1972 on the ground of his conviction. On 28-2-1974 he was acquitted of the charge u/s 409, Indian Penal Code in Criminal Appeal No. 6 of 1972 on the finding that "there was no dishonest misappropriation or conversion or use, within the meaning of Section 405, Indian Penal Code" (vide Annexure 6). On 12-6-1974 he was intimated by the order in Annexure 8 that the dismissal would take effect from 21-12-1972 instead of 22-6-1972. On 24-8-1974 the order of dismissal was withdrawn on the ground of his acquittal, but he was directed to continue to remain under suspension pending finalisation of the departmental proceedings (vide Annexure 12). He made repeated representations for re-instatement in service but no order was communicated to him. His contention in this writ petition is that the order of suspension having been passed under Rule 12(b) of the Orissa Civil Services (Classification Control and Appeal) Rules, 1962 it automatically stood vacated after his acquittal on 28.:.1974, but he has been illegally ''treated to have been continuing on suspension from the date of original suspension i. e. 27-9-1968. He prays for issue of a writ of mandamus directing the opposite parties to pay his full salary and allowances for the entire period from the date of his Original suspension till the date of disposal of this writ petition.

The opposite parties filed counter contending, inter alia, that though the Petitioner was acquitted of the criminal charge and the order of dismissal was withdrawn, yet he continued to remain under suspension pending finalisaticn of the departmental proceeding.

It is not disputed that the Orissa Civil Services (Classification, Control and Appeal) Rules, 1962 are applicable to the employees of the Orissa State Electricity Board and that the suspension of the Petitioner was made under Rule 12(b) of the said Rules. The rule runs as follows:

R.12. Suspension-1) The appointing authority or any authority to which it is subordinate or any authority empowered by the Governor or the appointing authority in that behalf may place a Government Servant under suspension

(a) ...

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

Suspension is an interlocutory action and it remains in force until the final disposal of the criminal proceedings. The legal position is well settled that where a Government servant has been suspended pending a criminal investigation or trial, the order of suspension automatically ceases to be operative as soon as the criminal proceedings terminate by an acquittal on discharge. Immediately after such acquittal or discharge in the criminal case, the delinquent should be deemed to have been reinstated and is accordingly entitled to recover his full pay and allowances since the date of suspension. See R.P. Kapur Vs. Union of India (UOI) and Another, . Om Prakash Gupta Vs. The State of Uttar Pradesh, and H.L. Mehra Vs. Union of India (UOI) and Others, .

The Criminal proceedings against the Petitioner terminated by his acquittal on 28-2-1974 and the order of suspension ceased to exist from that date. Thereafter he should not have been treated under suspension, Since he was suspended pending investigation into a criminal offence, the order of suspension has no relation to the departmental proceedings which was subsequently started. The order of withdrawal of dismissal could not therefore revive the order of suspension. The recital in Annexure-1 clearly shows that the suspension was due to arrest by police. It is, therefore, not possible to say that the suspension was made in contemplation of the disciplinary proceeding which was initiated only after the Petitioner was convicted by the trial Court. No fresh order of suspension was communicated to the Petitioner till 27-8-1974. It is difficult to appreciate how the Petitioner could be directed to continue to remain under suspension unless he was under suspension at the time when the direction in Annexure 12 was given. There could be a fresh suspension in connection with the disciplinary proceeding, but we fail to see how there could be continuance of a suspension which did not exist. The Petitioner is therefore entitled to his pay and allowances from 27-9-1968 till 27-8-1974.

The next question for consideration is whether on the facts and in the circumstances of the case the Petitioner can be held to have been placed under suspension in connection with the disciplinary proceeding with effect from 27-8-1974 as per the order in Annexure 12. The disciplinary proceeding started against the Petitioner is said to be still pending. The Petitioner''s representations for reinstatement in service went unheeded and it was directed that he should continue to remain under suspension pending finalisation of the departmental proceedings against him. In our opinion, this amounts to a fresh suspension in relation to the departmental proceeding and it took effect from 27-8-1974 when it was communicated to him. We, therefore, hold that the Petitioner has been under suspension with effect from 27-8-1974.

In the result, the writ petition is allowed in part. Let a writ of mandamus be issued directing the opposite parties to pay to the Petitioner all arrears of pay and allowances from 27-9-1968 till 27-8-1974 after deducting the amounts already paid as subsistence allowance. As the matter is pending for a long time, the opposite parties be directed to dispose of the disciplinary proceedings expeditiously. As the success is partial there will be no order as to costs.

Petition partly allowed.

S.N. Shankar, C.J.

I agree.