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R.L. Gupta Vs. Union of India and ors. - Court Judgment

LegalCrystal Citation
SubjectConstitution;Service
CourtDelhi High Court
Decided On
Case NumberGift Tax Reference No. 876 of 1972
Judge
Reported inILR1985Delhi565
ActsConstitution of India - Article 311(2)(1)
AppellantR.L. Gupta
RespondentUnion of India and ors.
Advocates: G.D. Gupta and; C.L. Choudhry, Advs
Cases ReferredState of Assam & Another v. Raghava Rajagopalachari (supra
Excerpt:
.....and allowance for the period of suspension the only thing to be seen is whether the suspension was wholly unjustified and no whether he was 'honorably acquitted' by the criminal court--before coming to the conclusion that the suspension was not wholly unjustified and while withholding the pay and allowance for the period of suspension, reasons should be given in the show cause notice to the person concerned even if he is aware of the charge and no further reasons could be given.; the petitioner was charged with an offence under section 5(2) read with section 5(1)(d) of prevention of corruption act read with section 161 of indian penal code and was placed under suspension with effect from 3-4-1970. he was tried and exonerated and acquitted on merits on 6-9-1971. accordingly, the..........the judgment the president was of the opinion that the suspension of the petitioner was not wholly unjustified and. thereforee, the president proposed to restrict the pay and allowances of the petitioner to the amount of subsistence allowance paid to him for the- period of his stephenson from 3rd april 1970 till the date of his reinstatement, the petitioner sent a reply to this memorandum staling therein' that the' communication did not contain any grounds for the proposed action and that the petitioner did not have proper opportunity- to make representation and, thereforee, it amounted to denial of opportunity guaranteed under sub-rule (5) of f. r. 54-b and was, thereforee, also vocative of the principles of natural justice. thereafter, the respondent vide their communication.....
Judgment:

Sunanda Bhandare

(1) The petitioner was posted as Executive Engineer (Electical) in P & T Electrical Division in the year 1970. He was drawing a salary of Rs. 860.00 per month plus A.D.A., C.C.A. and H.R.A. etc. On 29th January, 1970 he was charged with an offence under Section 5(2) read with Section 5(l)(d) of Prevention of Corruption Act read with Section 161 of the Indian Penal Code on a complaint made by one Shri Shiv Kamboja, an Electrical Govt. Contractor. The petitioner was placed under suspension w.e.f. 3rd April, 1970.

(2) The petitioner was tried- in this: corruption case by the Special Judge, Delhi-and exonerated and acquitted on merits by an order dated 6th September, The respondent did not chose to file an appeal against this judgment and vide an order dated 29th December.1971 revoked.the order of suspension with immediate effect The petitioner was paid full salary and alliances for the period after 5th September, 1971 from the date of the judgment acquitting him. however for the period between 3rd April, 1970 till-5th September, 1971 he was paid only half of his salary and allowances.

(3) The Government of India, Department of Communication, P & T Board vide Memo No. 9-5-70-Vig./DISCI dated 29th December, 1971 while passing the order revoking the suspension intimated to the petitioner that after going through the Judgment the President was of the opinion that the suspension of the petitioner was not wholly unjustified and. thereforee, the President proposed to restrict the pay and allowances of the petitioner to the amount of subsistence allowance paid to him for the- period of his stephenson from 3rd April 1970 till the date of his reinstatement, The petitioner sent a reply to this Memorandum staling therein' that the' communication did not contain any grounds for the proposed action and that the petitioner did not have proper opportunity- to make representation and, thereforee, it amounted to denial of opportunity guaranteed under sub-rule (5) of F. R. 54-B and was, thereforee, also vocative of the principles of natural justice. Thereafter, the respondent vide their communication dated 28th February, 1972 rejected the representation of the petitioner and communicated that the period as suspension till date of his acquittal by the Court on 6th September, 1971 would be treated as period spent on duty for all purposes excepting pay and allowances. The petitioner in this writ petition has challenged these two orders dated- 29th December, 1971 and 28th February, 1972 in not paying Ins half salary and allowances for the period 3rd April, l970 to 5th September, 1971.

(4) After the writ petition was admitted, the petitioner moved an application under Section 151 Civil Procedure Code for urging additional groups application was allotted by this Court vide order dated 12th February, 1973. In this application the petitioner referred to para 20 of Chapter xiii of the Vigilance Manual Volume I of the Central Vigilance Commission Which reads thus :

'20.Benefit-of doubt effect on exoneration : Where the exoneration of a Government servant is on the ground that the charges were not established at all or were not established beyond doubt, it should make no difference in the resulting position since there can be no degrees in the matter of exoneration. Even when it is said that a' Government servant has been given the benefit of doubt the decision in effect is that the allegations have been held not to be established. It would, thereforee, not' be right to invest more doubt with any positive significance.'

(5) It was contended by the lear tied counsel for the petitioner that since the petitioner was exonerated and acquitted of the criminal charges on merits by a court of law arid once the petitioner's suspension, was revoked and he Was reinstated in service there was no discretion left with the Government to withhold the pay and allowances for the period of his suspension. It was contended that Rule 54-B would not apply to a case where a Government servant is reinstated because of an acquittal by a court of law. In the alternative it was contended that assuming F. R. 54-B(3) would be attracted discretion would be left with the Government to decide whether the suspension was wholly unjustified or not only in a case where acquittal was on technical grounds and not on merits. The learned counsel referred to the judgment of the Special Judge, Delhi in order to show that the petitioner was fully exonerated of the charges leveled against him and was honorably acquitted. The learned counsel, thereforee, contended that no ground was made out for withholding the pay and allowances for the period of suspension, it was contended that only if the suspension was not wholly unjustified, the. Government could restrict the pay and allowances of a Government employee to the extent of subsistence allowance paid to him for the period of his suspension and since the petitioner was honorably acquitted of the charge in the criminal case in no way could the suspension be justified by the respondents. It was further contended that while communicating the order dated 28th February, 1972 (he respondent did not set out the reasons why the suspension was not fully unjustified. It was submitted that since this order was a quasi-judicial order, it should have been a speaking order staling therein the reasons for the conclusion arrived at by the respondent. Without having known the reasons the petitioner could not effectively show cause why the pay and allowances should not be withheld. To support his contentions the learned counsel for the petitioner relied on : B. D. Gupta v. State of Haryana 1972 (1) SLR 845 State of Assam & Another v Rgghva Rajagopalachari 1972 (2) SLR 44 Ghulam Nabi Baba v. State of Jammu & Kashmir, AIR 1966 J&K; 27 and Jagmohan Lal v. State of Punjab, .

(6) On the other hand, it was contended by the learned counsel for the respondent that in every case when an employee is reinstated and suspension is revoked the Government has to consider whether the suspension was wholly unjustified or not. In case where there was clear acquittal full pay and allowances would be given for the period of suspension, however whenever an employee was acquitted of a criminal charge on technical grounds he would not be entitled to full pay and allowances. It was contended that F. R. 54-B(3) would apply in all cases and when the authority competent to order reinstatement is of the opinion that the suspension Was wholly unjustified the government servant would be paid the full pay and allowances to which he would have been entitled had he not been suspended. The learned counsel further contended that prior to 1970 unamended Rule 54 applied and only government servants who were honorably acquitted of the criminal charge were entitled to claim full pay and allowances for the period of suspension, however after the amendment under new F.R. 54-B only if a government servant was fully exonerated on merits that he would be entitled to the whole of the pay and allowances. 'The learned counsel relied on the judgment of the Supreme Court in : The State of Assam & Another v. Raghava Rajagopalachari, 1972 SLR 915 and contended that whenever there is an acquittal on technical grounds or whenever there is an acquittal because of benefit of doubt given to the charged government employee the pay and allowances could be withheld by the competent authority if it felt that the suspension was not wholly unjustified. It was further contended that though in the present case no reasons were given in the show cause notice it was abundantly clear to the petitioner why it was felt that suspension was not wholly unjustified. It was submitted that the judgment of the criminal court was clear and the acquittal was because of the benefit of doubt given to the petitioner and, thereforee, it was not a case of clear acquittal. It was only the preponderance or probabilities which had led to the acquittal of the petitioner arid, thereforee, the respondent was right in holding that the suspension was no wholly unjustified. It was further submitted that in any event, it was clear to the petitioner why the Government had come to- the conclusion and the petitioner had filed his representation which was after careful consideration rejected. As regards the reference to the Vigilance Manual quoted by the petitioner was a confidential document intended observe as a reference for officers who have to deal with the vigilance cases and the petitioner could not rely on this document in support of his contention.

(7) F.R. 54-B deals with the.treatment to be given to a government servant who is reinstated after having been suspended. F.R.54B (1), F.R. 54B(3)and Fr 54B(6) read thus

F.R.54-B(1).WHENa Government servant -who has been suspended is reinstated or would have been so reinstated but: for his retirement on superannuation while under suspeasion, the authority competent to order reinstatement shall consider and make a specific order

(A)regarding the pay and allowances to be , to the Government servant for the period of suspension ending with reinstatement or the date. of his retirement on superannuation, as the case may.be and

(B)whether or not the said period shall be treated as a period spent on duty.

F.R. 54-B(3) Where the authority competent to order reinstatement is of the opinion that the suspension was wholly unjustified, the government servant shall, subject to the provisions of sub-rule (8) be paid the full pay and allowances to which he would have been entitled, had he not been suspended;

F.R.54-B(6)Where suspension is revoked pending finalisation of the disciplinary.or the court proceedings, any order passed under sub-rule (1) before the conclusion of the proceedings against the Govt.. servant, shall be reviewed on its own motion after the.conclusion , of the proceedings, by the authority mentioned in sub-rule (1) who shall make an order according to the provisions of sub-rule (3) or sub rule (5), as the case may be.'

thereforee, the Rules the authority competent to order reinstatement shall consider and make specific order regarding the pay and allowances to be paid to the Govt.servant for the period of suspension ending with reinstatement or the date of retirement or superannuation, as the case may be, and whether or not the said period shall be treated as period spent on duty. 'Order FR54B(3) .when the authority competent to order reinstatement is fo the opinion that the suspension was wholly unjustified, the Govt. servant , be entitled to be paid full pay and allowances to which he would have been entitled had he not been suspended. Under Fr 54B(6) where suspension is revoked pending finalisation of the disciplinary or the court proceedings, the competent authority has to pass an order regarding the pay and allowances payment to such an employee. It is thus clear that whenever a Govt. servant who has been suspended is reinstated because of acquittal by a criminal court, Fr 54-B would be attracted Only, if the period under suspension is treated as one spent on duty that he would be entitled to get full pay and allowance for that period. On a plain reading of this Rule it cannot be said that in every case where reinstatement is granted, a Govt. servant would be automatically entitled to get full pay and allowances.

(8) Now the next question is when can it be said that suspension was wholly unjustified In. other words, when would suspension of a Govt. servant be held to be justified To my mind, when Govt. servant is acquitted of a criminal charge whether on merits or due to benefit of doubt or one account of some technical ground would not make any difference. In all the three cases the guilt is not proved. The only thing a criminal court has to do is to find out whether the prosecution has succeeded in proving beyond reasonable doubt that the accused is guilty and no more. In a cage where the charge is not proved because the prosecution has committed technical error the accused does not get an opportunity to get himself fully exonerated. As held by the Supreme Court in B. D.Guptas case (supra) in such a case it is impossible for the Govt. to proceed on the basis as if the person has not been fully exonerated or to assume that the order of suspension was one which was not wholly unjustified. The case of State of Assam & Another v. Raghava Rajagopalachari (supra) relied upon by the learned Counsel for the respondent can be of no assistance because the Supreme Court in that case held that clause (b) of the Fundamental Rule 54 would be applicable in all cases where the officer concerned is not honorably acquitted. F.R. 54 as it was applicable then read thus :

'F.R.54 When the suspension of a Government servant is held to have been unjustified or not wholly justified; or When a Government servant who had been dismissed, removed or suspended is reinstated; the revising or appellate authority may grant to him fort the period of his absence from duty (a) if he is honorably acquitted, the full pay to which he would have been entitled if he had not been dismissed, revoked or suspended and, by an order to be separately recorded, any allowance of which he was in receipt prior to his dismissal, removal or suspension; or (6) if otherwise such proportion of such pay and allowances as the revising or appellate authority may prescribe. In a case falling under clause (a) the period of absence from duty will be treated as a period spent on duty. In a case falling under clause (b), it will not be treated as a period spent on duty unless the revising or appellate authority so direct.'

This rule has been now amended and the words 'honorably acquitted' do not appear in F.R. 54-B. The removal of the words honorably acquitted makes a substantial difference. The only thing that has now to be seen by the competent authority is whether the suspension was wholly unjustified and not whether the Govt. servant was 'honorably acquitted'.

(9) Now coming to the facts of the present case. It may be useful to refer to the Judgment of the Special Judge, Delhi in the criminal case being Corruption Case No. 12 of 1971 to first determine whether the petitioner was acquitted on merits or because benefit of doubt was given to him. After discussing all the evidence, the Special Judge observed thus :

'In the normal course of conduct, it was for the complainant to have controverter the Explanationn given by the accused, if it was wrong and at any rate it was for the Investigating Officer to have interrogated the complainant on it, which appears to have not been done. All the prosecution witness, barring the two DSPs stated about the complainant keeping mum and the DSPs not interrogating the complainant on the Explanationn given by the accused. They were not cross-examined on the point by the P.P. This material Explanationn given by the accused and the complainant impliedly accepting it, vitally affects the prosecution case. Complainaht's making no mention of the sweater story in his statement Ext. Public Witness 3[A and his suppressing the same from the Spe officials all through, his giving a twist to-that-circumstance, besides other circumstances, belittles the veracity of the prosecution story. The two DSPs stand of the complement controverting the accused's Explanationn disowned by the complainant and the other Public Witness s, materially affects the benefits of the investigation. The 2% commission on the total sum of Rs. 34881- paid to the accused would come to Rs. 701-or s.oIt was known to the complainant. He was black-listed and could not work for the Department. It is not understandable how he gave and the accused accepted Rs. 100.00 towards commission. Though, there are some circumstances raising suspicion that the accused may probably have accepted the amount as illegal gratification, the preponderance of probability lies more in favor of the defense version. Accordingly, the accused is acquitted of the charges against him.'

(10) It is clear from the above observations of the Special Judge that the petitioner was clearly acquired of the criminal charges on merits and not on technical grounds or by giving him the benefit of doubt. The very basis on which the benefit of full pay and allowances was denied to the petitioner cannot, thereforee, stand.

(11) Coming to the next point regarding opportunity to be afforded to a government servant before any decision is taken withholding the pay and allowances for the period of suspension, -it appears, that in the present case no reasons whatsoever were given in the show cause notice by the respondent for coming to the conclusion that the suspension' was not wholly unjustified. No reason was forthcoming in the counter-affidavit filed .by the respondent in this Court. At the time of arguments the reason given was that the petitioner was acquitted only because of benefit of doubt by the Special Judge and, thereforee, ilw,as felt that the suspension was not wholly unjustified. The Supreme Court in the case of B. D. Gupta (supra) held that the person concerned should be given full opportunity to make out his own case about the order which is being interpreted by the government. The Supreme Court while dealing with Rule 7.3 of the Punjab Civil Service Rules Volume I, Part I held that before passing an order under Rule 7.3 the authority concerned had to form an opinion as to whether the government servant had been fully exonerated and whether the order of suspension was not wholly unjustified and, thereforee, before the authority formed such opinion it was incumbent upon it to afford an opportunity to the person concerned to make suitable representation In this behalf. The Supreme Court held that since such an order affects the employee financially it must be passed after an objective consideration and assessment of all relevant facts and circumstances and after giving the person concerned full opportunity to make out his own case about that order. In the present case, since no reasons were given for the conclusion arrived at by the appropriate authority while withholding the pay and allowances tot the period of suspension though the same was treated as time spent on duty, the petitioner was denied the opportunity to make an effective representation to show that the petitioner was in fact fully acquitted by the criminal court on merits. A similar argument was also made before the Supreme Court in that case that the petitioner was aware of the charge and no further reasons could have been given. This argument was also repelled by the Supreme Court, in any event, the petitioner was fully exonerated and there was no basis on which the competent authority could have come to the conclusion that the suspension was one which was not wholly unjustified.

(12) In the result the petition succeeds. The orders dated 29th December, 1971 and 28th February, 1972 are quashed. The petitioner would be entitled to full pay and allowances for the period between 3rd April, 1970 to 5th September, 1971.

(13) By order dated 15th July, 1985 I had allowed the writ for reasons to follow. These arc my reasons for making the rule absolute. There will be no order as to costs.


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