Bombay High Court
Tarachand Sampat Lingayat vs State Of Mah. & Anr on 14 August, 2017
Bench: S.V. Gangapurwala
1 W.P.No.7097/04
UNREPORTED
IN THE HIGH COURT OF JUDICATURE
AT BOMBAY
BENCH AT AURANGABAD.
WRIT PETITION NO.7097 OF 2004
Tarachand S/o Sampat Lingayat,
Age 60 years, Occ.Pensioner,
R/o Plot No.2/2, Samarthnagar,
Near R.L.Colony, Jalgaon,
Dist.Jalgaon. ... Petitioner.
Versus
1. The State of Maharashtra
through the Secretary,
Home Department, Mantralaya,
Mumbai.
2. The Superintendent of Police,
Jalgaon, Dist.Jalgaon. ... Respondents.
...
Mr.K.C.Sant, advocate for the petitioner.
Mrs.A.V.Gondhalekar, Additional Government
Pleader for the State.
...
CORAM : S.V.GANGAPURWALA AND
MANGESH S. PATIL,JJ.
Date : 14.08.2017.
ORAL JUDGMENT (Per S.V.Gangapurwala,J.)
1. The present petitioner had filed
Original Application before the Tribunal,
challenging the order of the Respondent treating
the suspension period "as such". The Tribunal
dismissed the Original Application. Aggrieved
thereby, the present petition.
2. Mr.Sant, learned counsel submits that
the petitioner was suspended on 15.11.1990 on the
ground that a complaint is lodged against the
petitioner under the provisions of Prevention of
Corruption Act. The said suspension was revoked
on 10.1.1993. Subsequently, the petitioner was
acquitted of the charges by the Special Judge and
Additional Sessions Judge, Amalner, under its
judgment and order dated 28.7.2003. The learned
counsel submits that the acquittal in favour of
the petitioner was a clean acquittal. The show
cause notice was issued to the petitioner that
the acquittal of the petitioner was on technical
ground and as such why the suspension period
should not be treated "as such". The petitioner
replied, however, the authority did not consider
the explanation given by the petitioner. The
Tribunal also committed an error in appreciating
the fact. It ought to have been considered that
without any basis the petitioner was suspended.
The provisions of Rule 72 sub-rules (2) and (3)
have not been properly applied by the authority
as well as the Tribunal. The case of the
petitioner is fully covered under sub-rule (3) of
Rule 72 of the Maharashtra Civil Services
(Joining Time, Foreign Service and Payments
during Suspension, Dismissal and Removal) Rules,
1981. The learned counsel relies on the judgment
of the Apex Court in a case of "Brahma Chandra
Gupta Vs. Union of India" reported in AIR 1984
Supreme Court 380.
3. Mrs.Gondhalekar, learned Additional
Government Pleader supports the order of the
Tribunal and submits that the suspension of the
petitioner was not totally unjustified. Criminal
case under the provisions of the Prevention of
Corruption Act was filed against the petitioner.
In view of the Criminal case being filed, the
petitioner was suspended. Thereafter, the
authority reviewed his suspension and reinstated
him on 10.1.1993. As the order of suspension was
based on a Criminal case being filed, the
discretion vests with the authority to treat the
suspension period as such. The acquittal of the
petitioner was on technical ground. During the
suspension period, the petitioner has not
discharged his duties, as such rightly the order
has been passed by the authority and confirmed by
the Tribunal to treat the period of suspension as
such. The learned Additional Government Pleader
relies on the judgment of the Apex Court in a
case of "Krishnakant Raghunath Bibhavnekar Vs.
State of Maharashtra and others" reported in AIR
1997 Supreme Court 1434 and another judgment of
the Apex Court in the case of "State of A.P. and
others Vs. S.Sree Rama Rao" reported in AIR 1963
Supreme Court 1723.
4. The factual matrix is not disputed.
(a) The petitioner was suspended under
order dated 15.11.1990;
(b) Criminal case under the provisions of
the Prevention of Corruption Act, was filed
against the petitioner;
(c) The suspension of the petitioner was
revoked on 7.1.1993 and the petitioner resumed
his duties on 10.1.1993;
(d) The Special Judge and Additional
Sessions Judge, Amalner under judgment and order
dated 20.7.2003, acquitted the petitioner.
5. Though the suspension of the petitioner
was on account of criminal case being filed
against him, the revocation of suspension and
reinstatement was not on account of acquittal but
was on account of review of the suspension order
being made by the authority in the year 1993.
The acquittal was in the year 2003. On what
basis suspension order was reviewed and the
petitioner reinstated is not brought before the
Court, nor it is brought on record that
revocation of suspension is subject to the
decision in Criminal case i.e. considering the
manner of acquittal.
6. As observed above, the reinstatement
and the revocation of suspension was much prior
to the acquittal in the Criminal case. In fact,
the suspension order was suo-motu reviewed by the
authority and the petitioner reinstated.
7. We could have even appreciated the case
put forth by the Respondents, had the Respondents
conducted any departmental inquiry against the
petitioner. The Respondents at no material point
of time ever conducted any departmental inquiry
against the petitioner.
8. The acquittal in the said Criminal case
is also a clean acquittal and not on the basis of
benefit of doubt as is observed in the judgment
of the Criminal case. The said observation of
the learned Judge in the said Criminal case are
reproduced as under :
" In the conspectus of
the above discussion, and in the light
of the above decision laid down by the
Supreme Court as well as different
High Courts to which my attention has
been invited by the learned defence
counsel Mr.Atre. I left with no
option but to record the finding of
clean acquittal in favour of the
accused."
9. Thus it would be clear that the Judge
recorded that he is left with no option but to
record the finding of clean acquittal in favour
of the accused. It was also observed that even
the Officer who has granted sanction to prosecute
did not apply his mind. It was also observed
that it was neither the duty nor the power of the
police officer to restore the possession of any
property to any person.
10. Be that as it may, no departmental
inquiry was ever conducted. The acquittal was a
clean acquittal.
11. The authority is vested with the
discretion either to treat the suspension period
"as such" or as a duty period as laid down under
Rule 72 of the Maharashtra Civil Services
(Joining Time, Foreign Service and Payments
during Suspension, Dismissal and Removal) Rules,
1981. However, the said discretion that vests
with authority is not merely an ordinary or
unregulated discretion but a judicious discretion
which has to be exercised as per judicial norms
and legal principles.
12. In the present case, we do not find the
authority having exercised his discretion
objectively. The Apex Court in a case of
"Krishnakant Raghunath Bibhavnekar Vs. State of
Maharashtra and others" referred to supra has no
doubt observed that the authority may on
reinstatement after following the principles of
natural justice pass appropriate order including
treating suspension period as period of not on
duty.
13. As in the present case, no departmental
inquiry was ever conducted. The Court dealing
with the Criminal case has recorded finding of a
clean acquittal and the acquittal is not on the
basis of benefit of doubt. Sub-rule (3) of Rule
72 would be attracted.
14. In light of the above, we quash and set
aside the impugned order passed by the Tribunal
and also the letter dated 8.1.2004 issued by the
Respondent No.2. The period of suspension from
15.11.1990 to 10.1.1993 shall be treated as a
duty period and all benefits arising thereof
shall be accorded to the petitioner.
15. Rule accordingly made absolute in above
terms. The said exercise be completed within six
months. No costs.
Sd/- Sd/-
(MANGESH S. PATIL,J.) (S.V.GANGAPURWALA,J.)
asp/office/wp7097.04
