VITTHAL MAHADEORAO PACHGHARE vs ADDITIONAL COMMISSIONER,AMT.DIV. AND ANR.

B. P. DHARMADHIKARI, J.)

1.Petitioner by this petition under Articles 226 and 227 of the Constitution of India questions the order dated 24 th September, 2003 passed by the

Additional Commissioner, Amravati dismissing his appeal and treating the period of suspension pending enquiry as suspension only.

2.Short submission of Shri Bhoskar, learned counsel on behalf of petitioner is the misconduct has not been established fully and 2 J-WP-1348-04.odt

hence, period of suspension could not have been regularized as suspension only. The suspension was only for a criminal prosecution and the petitioner

has been acquitted by the Competent Court therefrom Charge sheet was also for said prosecution only and hence, the punishment as ordered by the

Chief Executive Officer on 12 th February, 2003 is rightly set aside. As punishment is not sustainable, suspension also must fall to ground. He has

relied upon the Judgment of Hon'ble Apex Court in the case of L. K. Verma Vrs. HMT Ltd. and another, reported at (2006) 2 SCC 269 and the

Division Bench Judgment of this Court in the case of Bhaurao and Nanded Zilla Parishad, Nanded and others, reported at 2000 (87) FLR 603.

3.Ms. Mehta, learned Assistant Government Pleader for respondent No.1 - Appellate Authority and Shri Dahat, learned counsel for respondent No.2 -

Disciplinary Enquiry (Employer) have strongly opposed the petition. They submit that the Disciplinary Authority has found charges partly proved and

therefore, a punishment of permanently deducting 15% of pension payable monthly, has been inflicted. As the petitioner was suspended during the

period of prosecution, the period of suspension has been regularized by stipulating that it be recognized as period of suspension only. They pointed out

that it is not a punishment at all.

4.They place reliance upon Judgment of the Division Bench in the case of Dewaji Dasaru Gaikwad (since deceased through his legal heirs) & others,

reported at 2017 (5) Bom.C.R., 761 to which one of us (B.P.Dharmadhikari, J.) is a party. Attention is also invited to Judgment in the case of Union

of India and another Vrs. Ashok Kumar Aggarwal, reported at (2013) 16 SCC 147 to advance arguments that such suspension cannot be viewed as

punishment.

5.Shri Bhoskar, learned counsel in reply arguments, relies upon the Judgment of Division Bench of this Court in the case of Dattatraya Vasudeo

Kulkarni Vrs. Director of Agriculture, Maharashtra and others, reported at 1984 Mh.L.J. 406 to urge that when there is acquittal from criminal

prosecution, the period of suspension needs to be regularized as period of duty.

6.The facts show that by order dated 07/03/1992, the Chief Executive Officer, Zilla Parishad, Amravati placed petitioner under suspension as offences

under Sections 498, 306, 34 of the Indian Penal Code were registered against him on 14/01/1992 in Crime No.8/92. He was warned not to leave

headquarters without previous permission and about his entitlement to subsistence allowance in terms of the Maharashtra Civil Services (Joining Time,

Foreign Service and Payment during Suspension, Dismissal and Removal) Rules, 1981, particularly Rule 68. He was on 05/06/1992 served with a

charge sheet and then on 02/12/2002, after receipt of enquiry report, he was served with a show cause notice dated 02/12/2002 as to why his monthly

pension should not be permanently reduced by 25%. The petitioner gave his reply to it and on 12/02/2003, the Chief Executive Officer as Disciplinary

Authority, passed order of punishment. The monthly pension was permanently reduced by 15%. While doing this, period of suspension has been

directed to be regularized as suspension only.

7.Against this order, petitioner filed appeal under Rule 13 of the Maharashtra Zilla Parishads District Services (Discipline and Appeal) Rules and

respondent No.1 has on 24 th September, 2003 allowed that appeal. The Appellate Authority found that after acquittal by Competent Court on

07/01/2002, such a punishment order became unsustainable. However, then the Appellate Authority maintained the regularization of period of

suspension as suspension only. It appears that against this order, petitioner preferred a review and the review petition has been dismissed by

respondent No.1 on 07/01/2004. Reviewing Authority has specifically looked into the contention that period of suspension could not have been treated

as suspension and found that acquittal of the petitioner could not have been foreseen by his employer. The employer did not have any mala fide

intention in suspending him and a teacher like the petitioner facing very serious charges, could not have been allowed to remain on duty. Challenging

this order, present petition has been filed.

8.It is not in dispute that the Maharashtra Zilla Parishads District Services (Discipline and Appeal) Rules do not prescribe suspension as punishment at

all. Clause-4 of the said Rules, describes various serious punishments and suspension is not included in it. In the case of Union of India and another

Vrs. Ashok Kumar Aggarwal, reported at (2013) 16 SCC 147 in para 19, the Hon'ble Apex Court has held that suspension pending enquiry is not a

punishment at all. Shri Dahat, learned counsel has relied upon judgment in the case of Krishnakant Raghunath Bibhavnekar Vrs. State of Maharashtra

and others, reported at (1997) 3 SCC 636 which points out types of suspension and rights of employee like petitioner. The Hon'ble Apex Court held

that acquittal in criminal case does not automatically entitle a person to back-wages. The Competent Authority is empowered to treat period of

suspension as not spent on duty. This judgment is on Maharashtra Civil Services (Joining Time, Foreign Service and Payment during Suspension,

Dismissal and Removal) Rules, 1981 only.

9.The counsel for the petitioner has relied upon judgment in the case of L. K. Verma Vrs. HMT Ltd. and another, reported at (2006) 2 SCC 269

there, the Hon'ble Apex Court has in the para 17 considered three kinds of suspension and also observed that delinquent officer is entitled to

subsistence allowance, as per Service Rules during period of suspension pending enquiry. In present facts, this entitlement of petitioner in terms of

Rules 68 of the Maharashtra Civil Services (Joining Time, Foreign Services and Payment during Suspension, Dismissal and Removal) Rules, was

informed to him on 07/03/1992 only and he never questioned it.

10.The Division Bench of this Court, reported at Bhaurao and Nanded Zilla Parishad, Nanded and others (supra) in para 6 finds that since the

petitioner was suspended on the ground that he was involved in criminal case and was reinstated after acquittal, he was entitled to full salary for the

period of suspension. Facts in para 3 of the said judgment show that the said petitioner Bhaurao was placed under suspension on 27/07/1984 as he

was implicated in criminal case under Sections 44, 84, 147, 148, 149, 324 and 323 of the Indian Penal Code. This Judgment, however does not consider

the right of employer to put employee under suspension and power given by Rule 68 and Rule 72 of the Maharashtra Civil Services (Joining Time,

Foreign Services and Payment during Suspension, Dismissal and Removal) Rules to regularize it. In the light of the judgment of the Hon'ble Apex

Court in the case of Kirshnakant Raghunath Bibhavnekar Vrs. State of Maharashtra and others (supra), we find that said judgment cannot be

accepted as laying down any general proposition of law which can be extended to other matters.

11.This Division Bench has relied upon earlier Division Bench judgment of this Court, in Special C.A.No.209/1968 decided on 27th November, 1974

where again because of acquittal, the Division Bench found that period needed to be regularized as period spend on duty. This 1974 judgment has

been looked into by other Division Bench of this Court in the case of Dattatraya Vasudeo Kulkarni Vrs. Director of Agriculture, Maharashtra and

others, reported at 1984 Mh. L. J.406 Facts in this matter show that the petitioner Dattatraya was acquitted of the offence punishable under Section

409 of the Indian Penal Code. The charge against him was for a criminal breach of trust by misappropriating an amount of Rs.7831.64. This charge

was in relation to his official work and duty & Employer, therefore, failed to prove charge. In this situation, employer, therefore, might be at fault in

falsely implicating Dattatraya in criminal matter. The Division Bench has also found that there was no independent departmental enquiry and only on

account of involvement in offence, he was placed under suspension. After his acquittal, a show cause notice was issued and in reply to it, Dattatraya

pointed out a need of departmental enquiry. He also sought opportunity to cross-examine witnesses on whose statement, his employer wanted to rely.

Thus, on facts, even this Division Bench judgment is not attracted in present matter. It does not lay down a law for universal application.

12.In the case of Dewaji Dasaru Gaikwad (since deceased through his legal heirs) & others (supra), this Court has not referred to any Judgment by

this Court and only judgment of Hon'ble Apex Court, reported at Union of India and another Vrs. Ashok Kumar Aggarwal (supra) has been relied

upon. In para 11, this Court has observed as under :-

When above principles governing the interim suspension are kept in mind, in present facts the disciplinary authority did not err in honouring the

mandate of service rules by placing petitioner under suspension. In our view, there is no illegality or perversity in the order passed by the respondent

No.2. But the pension and retirement benefits of petitioner cannot be withheld. If the petitioner is eligible to pension & other benefits due to his

superannuation & the same are still not released to him, the same shall be worked out within next two months. The pension and other terminal benefits

to which petitioner is found entitled, shall be released to him, within next 3 months.

13.In present petition, petitioner Vitthal never independently challenged his suspension pending enquiry or then after it. Only after acquittal, he is

seeking regularization of period of suspension as period spent on duty. Criminal offence for which he was prosecuted, did not pertain to his office

work but arose out of his domestic relation in the family. His employer, therefore, was not involved in any manner in criminal prosecution. In

Departmental Enquiry, ultimately by the order of Appellate Authority, he has been exonerated and hence, the order of withholding 15% of his pension

has been set aside. Said authority however, has rightly observed that employer did not act with any malice and honestly used the powers and

discretion available to it in the matter.

14.In these facts, we do not find anything wrong with the order dated 07/01/2004 passed by the respondent No.1. There is no jurisdictional error or

perversity. Interim suspension of petitioner is not wiped out merely because of his acquittal in prosecution. Law obliges employer to pass suitable

orders in this respect and gives him discretion. This discretion is not demonstrated to be used arbitrarily here.

15.Consequently, petition is dismissed. Rule discharged. No costs.