P.K. Mohanti, J.
1. Petitioner is a Revenue Inspector in the employment of the State of Orissa. While he was posted at Kanchuri Circle under Chatrapur Tahasil in the district of Ganjam, a first information report was lodged against him on 29.8.1968 at the instance of the Collector, Ganjam on the allegation that he had misappropriated Government money. He was arrested on 30.8.1968 and detained in police custody till 4.9.1968. On 2.9.1968 the Collector passed an order suspending the petitioner from service (vide Annexure 1) and the order was received by the petitioner on 4.9.1968 while he was in police custody. During the pendency of the criminal case, a disciplinary proceeding was started against the petitioner as per the Collector's order dated 10.1.1969. On 31.1.1975 the criminal case ended in conviction under Sections 409 and 477A, Indian Penal Code and consequent upon conviction, the petitioner was dismissed from service with effect from the date of conviction (vide Annexure 4). The criminal appeal preferred by the petitioner was allowed on 9.3.1976. Thereupon, the Collector by his order dated 4.6.1976 (Annexure 5) vacated the order of dismissal from service, reopened the disciplinary proceeding and directed that the petitioner be deemed to have been continuing under suspension from 31.1.1975 as per Rule 12(4) of the Orissa Civil Services (Classification, Control and Appeal) Rules, 1962 (hereinafter referred to as the 'CCA. Rules).' The petitioner challenges the order of revival of the disciplinary proceeding and the order for continuance of his suspension as illegal and prays that the departmental proceeding be dropped and he be reinstated in service with full salary and consequential service benefits with effect from the date of the original order of suspension, i.e., 2.9.1968.
2. The stand taken by the opposite party is that there is no legal bar the revival of the disciplinary proceedings, particularly when some of the charges framed therein were not the subject-mater of the criminal case. The original order of suspension had no connection with the criminal investigation or trial and had been made in contemplation of a disciplinary proceeding against the petitioner as provided under Rule 12(1)(a) of the CCA. Rules.
3. The proposition that acquittal in a criminal case does not operate as an absolute bar to a departmental proceeding is now firmly established by authoritative pronouncements and needs no reiteration. It is, however, not open to a disciplinary authority to take a view contrary to the judicial opinion on the same charge on a re-appraisal of the very same evidence without anything more. If the disciplinary authority were to invent its own reasoning and record a finding of guilt, the order of dismissal by the disciplinary authority may be vulnerable. In the present case, one of the charges framed in the departmental proceeding relates to unauthorised absence from duty. It will thus be seen that the departmental proceedings and the criminal case do not relate to identical charges. The petitioner was dismissed from service consequent upon his conviction in the criminal case. The conviction having been set aside in appeal the order of dismissal has been recalled. It was, therefore, open to the authorities to continue the disciplinary proceeding and the petitioner is not entitled to a questioning thereof.
4. Now coming to the petitioner's grievance about the order of suspension, it will be seen from the narration of facts that the F.I.R. was lodged on 29.8.1968 and the petitioner was arrested by the police on 30.8.1968. The order of suspension was passed by the Collector on 2.9.1968 and it was served on the petitioner on 4.9.1968 while he was in police custody. There is nothing to indicate in the order of suspension that it was made in contemplation of a disciplinary proceeding. The disciplinary proceeding was started about four months after the order of suspension. Rule 12(2) of the CCA. Rules provides that a Government servant who is detained in custody, whether on a criminal charge or otherwise, for a period exceeding forty-eight hours shall be deemed to have been suspended with effect from the date of detention by an order of the appointing authority and shall remain under suspension until further orders. Thus the petitioner was deemed to have been under suspension on a criminal charge since the time of his arrest. By the Collector's order dated 2.9.1968 (Annexure 1) the suspension was continued after the petitioner was released from police custody. The order of suspension in due course merged in the order of dismissal and thus ceased to exist. In the facts and circumstances of the case, we hold that the order of suspension was one under Rule 12(1)(b) of the CCA. Rules.
5. An order of suspension passed under Rule 12(1)(b) is an interim order which remains in force during the pendency of the criminal proceeding and spends its force upon termination of the criminal proceeding In. the case of Sri Upendranath Barik v. Orissa State Electricity Board and Anr. 42 (1976) C.L.J. 774, a Division Bench of this Court held as follows:.The legal position is well settled that where a Government servant has been suspended pending a criminal investigation or trial, the order or suspension automatically ceases to be operative as soon as the criminal proceedings terminate by an acquittal or 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....
6. It is urged on behalf of the opposite parties that the order of suspension is justified under Rule 12(4) of the CCA. Rules. Rule 12(4) runs as follows:
Rule 12(4). Where a penalty of dismissal, removal or compulsory retirement from service imposed upon a Government servant is set aside or declared or rendered void in consequence of or by a decision of a Court of law and disciplinary authority, in a consideration of the circumstances of the case, decides to hold a further inquiry against him on the allegations on which the penalty of dismissal, removal or compulsory retirement was originally imposed, the Government servant shall be deemed to have been placed under suspension by the appointing authority from the date of the original orders of dismissal, removal or compulsory retirement and she continue to remain under suspension until further orders.
We are of the view that the rule applies to a case where the penalty of dismissal, removal or compulsory retirement from service is imposed upon a Government servant under the CCA. Rules and it is subsequently set aside or declared or rendered void in consequence of or by a decision of a Court of law and a further enquiry into the matter is decided upon by the disciplinary authority. It docs not apply to a case where in a disciplinary proceeding a Government servant had not been placed under suspension prior to his dismissal, removal or compulsory retirement. In the case of Khem Chandv. Union of India and Ors. A.I.R. 1963 S.C 687, their Lordships considered the scope of Sub-rules (3) and (4) of Rule 12 of the Central Civil Services (Classification, Control and Appeal) Rules, 1957 which correspond to Sub-rules (3) and (4) of Rule 12 of the CCA. Rules and held as follows:
Where the appellate authority after setting aside a penalty of dismissal, removal or compulsory retirement makes an order under Rule 30(2)(ii) remitting the case to the authority which imposed the penalty, for further enquiry, Rule 12(3) will come into operation and so the order of suspension which in almost all cases is likely to be made where a disciplinary proceeding is contemplated or is pending shall be deemed to have continued in force on and from the date of the original order of dismissal and shall remain in force until further orders. There is, therefore, no difference worth the name between the effect of Rule 12(4) on a Government servant the penalty of dismissal, removal or compulsory retirement on whom is set aside by a decision of a Court of law and a further enquiry is decided upon and the effect of Rule 12(4) on another Government servant a similar penalty on whom is set aside in appeal or on review by the departmental authority and a further enquiry is decided upon. In both cases the Government servant will be deemed to be under suspension from the date of the original order of dismissal, except that where in a departmental enquiry a Government servant was not placed under suspension prior to the date when the penalty was imposed, this result will not follow, as Rule 12(3) would not then have any operation....
(The italics is ours.)
7. The matter may be looked at from another angle. The Rule specifically refers to dismissal, removal and compulsory retirement as a penalty and, therefore, has reference to penalties is contemplated in Rule 13 imposable in a disciplinary proceeding. Rule 13 of the C.C.A. Rules enumerates the penalties which can be inflicted on a Government servant in a disciplinary proceeding. Dismissal from service is one of the penalties described in Clause (ix) of the Rule. The procedure for imposing the penalty of dismissal which is a major penalty is laid down in Rule 15. In the instant case the order of dismissal was not passed in a disciplinary proceeding. Therefore, it is not a penalty imposed under Rule 15. Rule 18 provides a special procedure for imposition of penalties in certain cases. It is contained that the dismissal of the petitioner was imposed as a penalty under this Rule so it attracts the applicability of Rule 12(4). Rule 18(i) provides that where a penalty is imposed on a Government servant on the ground of conduct which has led to his conviction on a criminal charge the disciplinary authority may consider the circumstances of the case and pass such orders thereon as it deems fit. Manifestly the disciplinary authority has to consider the circumstances of the case and impose the penalty on the basis of conduct and not on the basis of conviction. The order in Annexure 4 reads as follows:
Consequent on his conviction under Section 409, Indian Penal Code and under Section 477A, Indian Penal Code. Shri Gurunath Pradhan, R.I. Chattapur Tahasil (under suspension) is dismissed from service from the date of conviction order passed by the Court.
There is a clear distinction between dismissing a Government servant for his misconduct and dismissing him for his conviction. The order in Annexure 4 extracted above shows it was a dismissal flowing from conviction. There is nothing to show that the penalty was imposed after consideration of the circumstances of the case as required under the rule. We are, therefore, inclined to take the view that the disciplinary authority did not deal with the petitioner under Rule 18 of the CCA. Rules. Thus the dismissal of the petitioner by the order in Annexure 4 is not a penalty imposed under the CCA. Rules and hence the provisions of Rule 12(4) are not attracted. The ratio of the decision of the Supreme Court in H.L. Mehra v. Union of India : 1SCR138 , supports our conclusion. The relevant service rule was of similar type as here and the Court came to the conclusion that order continuing the suspension was invalid.
8. Since the order of suspension was made pending investigation into a criminal offence, it had no relation to the disciplinary proceeding. As there was no fresh order of suspension after revival of the disciplinary proceeding, the petitioner should be deemed to be on duty from the date of his arrest.
9. In the ultimate analysis, we hold that the order in Annexure 5 so far as it relates to the suspension of the petitioner is liable to be quashed. The petitioner should be deemed to be continuing in service from the date of his arrest and he is entitled to full salary and other consequential service benefits.
10. The writ petition is allowed to the extent indicated above. Parties to bear their own costs. As the disciplinary proceeding is pending for a very long time, we direct the opposite parties to dispose of the same within a period of three months from the date of service of the writ.
R.N. Misra, J.
11. I agree.