The Union Of India & Anr vs Deepak Arjun Malwadkar
2017 Latest Caselaw 4296 Bom

                                       1                            WP-6689-05


       IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                  BENCH AT AURANGABAD

          WRIT PETITION NO.6689 OF 2005 
                      
1. Union of India,
   Through the Secretary,
   Ministry of Defence,
   South Block, New Delhi

2. The General Manager,
   Ordnance Factory,
   Varangaon, Tq. Bhusawal,
   Dist. Jalgaon                                   ..Petitioners

              Vs.

   Deepak Arjun Malwadkar,
   (now deceased, through
   Legal Representative)
   Smt. Shobha D. Malwadkar,
   Age : 45 years, Occ. Nil, 
   r/o. Type - II 96/B Ordnance
   Estate, Ordnance Factory, 
   Varangaon, Tq. Bhusawal,
   Dist. Jalgaon, 
   only legal representative
   of Deepak Arjun Malwadkar
   (now deceased)                                  ..Respondent

                        --
Mr.D.G.Nagode, Standing Counsel for petitioners
Mr.S.S.Rathi, Advocate for respondent/sole
                        --

                                CORAM :  T.V. NALAWADE AND
                                         SANGITRAO S. PATIL, JJ. 

       JUDGMENT RESERVED ON: JUNE 23, 2017
      JUDGMENT PRONOUNCED ON:JULY 11, 2017  




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                                   2                              WP-6689-05




 
JUDGMENT 

(PER SANGITRAO S. PATIL, J.):

The petitioners have challenged the

judgment and order dated 09.03.2005 passed by the

Central Administrative Tribunal, Bombay Bench, at

Mumbai ("the Tribunal", for short) passed in

Original Application No.787 of 2003, whereby they

have been been ordered to pay salary to the

deceased respondent in respect of the period of

his suspension, after deducting the suspension

allowance, if any, paid to him.

2. The deceased respondent was an employee

working with the Ordnance Factory at Varangaon,

Tq. Bhusawal, Dist. Jalgaon. He came to be

arrested on his wife's sustaining burn injuries on

27.04.1999. In respect of that incident, crime was

registered against the deceased respondent and

others for the offences punishable under Sections

307, 498-A and 506 read with 34 of the Indian

Penal Code. The deceased respondent came to be

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arrested on 01.05.1999. He was in Police Custody

till 04.05.1999 and then in magisterial custody

till 20.05.1999, on which date he was released on

bail. Petitioner no.2 suspended the deceased

respondent by order dated 31.05.1999 with

retrospective effect from 01.05.1999. Sessions

Case No.183 of 1999 was instituted against the

deceased respondent and his other family members.

All the accused persons, including the deceased

respondent, came to be acquitted as per the

judgment dated 22.07.2002. Respondent no.2 then

revoked suspension of the deceased respondent as

per the order dated 08.01.2003 with effect from

09.01.2003. The deceased respondent made a

representation on 15.01.2003 for treating his

suspension period as the period spent on duty.

Petitioner no.2 issued notice to the deceased

respondent to show cause as to why the period of

suspension should not be treated as suspension

because he was acquitted for want of sufficient

evidence.

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3. The deceased respondent replied that

notice and stated that his wife had sustained burn

injuries accidentally and that has been upheld by

the Sessions Court. He, therefore, prayed that

since he has been honourably acquitted, he was

entitled to get his suspension regularised as the

period spent on duty with full back wages and

allowances as well as continuity in service.

Respondent no.2 passed order on 28.02.2003,

rejected the representation of the deceased

respondent and ordered that the period of

suspension of the deceased respondent shall be

treated as justified suspension and not the period

spent on duty for any purpose and the deceased

respondent shall be allowed only the pay and

allowances as had been paid to him during the

period of suspension.

4. Being aggrieved by the order passed by

respondent no.2, the petitioners filed above

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numbered Original Application before the Tribunal.

The Tribunal, after considering the rival claims

of the parties as well as the factual and legal

aspects of the matter, allowed that application.

The said order is under challenge in this

petition.

5. The learned Standing Counsel for the

petitioners, relying on the judgment in the case

of Krishnakant Raghunath Bibhavnekar Vs. State of

Maharashtra and ors., (1997)3 SCC 636, submits

that the acquittal of the employee based on

insufficient evidence in a criminal case would not

automatically entitle him to get back wages,

pensionary benefits and other consequential

benefits on his retirement where suspension is

ordered pending criminal case. He submits that the

competent authority is empowered to treat

suspension period as not spent on duty and has

discretion in the matter of treating the

suspension period as the period spent on duty and

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also in granting benefits of continuity in service

as well as back wages and allowances. He submits

that petitioner no.2, after considering the reply

of the deceased respondent, has rightly refused

the relief claimed by the deceased respondent. He

submits that the deceased respondent was acquitted

of the criminal charges because his wife turned

hostile and there was no sufficient evidence to

establish his guilt of the offences. Therefore,

according to him, petitioner no.2 rightly denied

the claim of the deceased respondent.

6. As against this, the learned Counsel for

the deceased respondent submits that the judgment

delivered by the Sessions Court in Sessions Case

No.183 of 1999 makes it clear that the wife of the

deceased respondent had sustained burn injuries

accidentally and it is the deceased respondent who

took her to the hospital and saved her life. He

submits that it was a case of no evidence and not

that of insufficient evidence. Since the deceased

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respondent has been given a clean chit, he is

entitled to get his suspension period regularised

as the period spent on duty with continuity in

service and back wages. According to him, the

Tribunal has rightly allowed the application filed

by the deceased respondent and ordered the

petitioners to allow the claims made by the

deceased respondent.

7. The copy of the judgment in Sessions Case

No.183 of 1999 is produced on record. It shows

that the wife of the deceased respondent, who is

now substituted in his place in the Writ Petition

after his demise, sustained burn injuries on

27.04.1999. She was examined before the Court,

wherein she specifically stated that she sustained

burn injuries accidentally. She deposed that the

deceased respondent also sustained injuries since

he tried to extinguish the fire at the time of the

incident. The deceased respondent was medically

examined on 01.05.1999 when blisters were found on

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both of his hands. The deceased respondent himself

had taken his wife to the hospital for treatment

after the incident. This circumstance coupled with

the positive statement of the wife of the deceased

respondent weighed the learned Judge who inferred

that the wife of the deceased respondent had

sustained injuries accidentally. He, therefore,

acquitted the deceased respondent. If all these

facts and circumstances of the case are

considered, it would be clear that the deceased

respondent was not involved in any crime. Thus,

it was a case of no evidence against the deceased

respondent. Consequently, the inference drawn by

petitioner no.2 that the deceased respondent was

acquitted for want of sufficient evidence is

without any basis. It was clear-cut acquittal of

the deceased respondent of the charges levelled

against him.

8. The case of Krishnakant Raghunath

Bibhavnekar (supra) is based on Rule 72 of the

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Maharashtra Civil Services (Joining Time, Foreign

Services, and Payment during Suspension, Dismissal

and Removal) Rules, 1991, which is not applicable

to the deceased respondent. Therefore, this

judgment would not be of any help to the

petitioners to controvert the claim of the

deceased respondent.

9. The learned Counsel for the petitioners

further relied on the decision in the case of

Madhukar Namdeo Patil Vs. Chairman, Sudhagad

Education Society and others, 2000(4) Mh.L.J.206

based on Rule 33 of the Maharashtra Employees of

Private Schools (Conditions of Service) Rules,

1981, wherein it is held that sub-rule (5) of Rule

33 stipulates that the employee in such a case

shall be considered as under suspension for any

period during which he is under preventive

detention or where he is detained in police or

judicial custody for a period exceeding 48 hours

or is undergoing imprisonment. The period of

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suspension under the provisions of sub-rule (5) of

Rule 33 must necessarily come to an end once the

period of judicial or police custody is

terminated. The suspension under this sub-rule is

not indefinite suspension during the pendency of a

criminal prosecution.

10. The learned Counsel for the petitioners

then relied on the judgment in the case of Union

of India Vs. Rajiv Kumar, 2003 DGLS (SC) 525

wherein the respondent employee was governed by

the Central Civil Services (Acquisition, Control,

Appeal) Rules, 1965 ("the Rules of 1965", for

short). Since the respondent was governed by the

Rules of 1965, the provisions of Rule 10 were

under consideration of the Hon'ble Apex Court and

it was held that the order in terms of Rule 10(2)

is not restricted in its point of duration or

efficacy to the period of actual detention only.

It continues to be operative unless modified or

revoked under sub-rule (5)(c) as provided under

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sub-rule (5)(a). It is further held that the

deemed suspension would continue to be in force

till anything has been done under Rule 10(5)(c).

11. In the present case, petitioner no.2, as

per the order dated 31.05.1999, had placed the

deceased respondent under deemed suspension with

effect from 01.05.1999, though he was on bail

during the period from 27.05.1999 till 31.05.1999.

The judgments in the cases of Madhukar Namdeo

Patil (supra) and Union of India Vs. Rajiv Kumar

(supra), based on the Rules which are not

applicable to the service conditions of the

deceased respondent, are of no help to the

petitioners to advance their case.

12. The learned Counsel for the deceased

respondent has strongly relied upon the decision

in the case of Brahma Chandra Gupta Vs. Union of

India, AIR 1984 SC 380 wherein, the appellant-

employee was working as Upper Division Clerk in

the Defence Accounts Department, who was

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prosecuted for the offence punishable under

Section 19(F) of the Indian Arms Act and Section 5

of the Indian Explosive Substances Act. Pending

investigation, he was convicted by the learned

Magistrate for the offence punishable under

Section 19(F) of the Indian Arms Act and sentenced

to suffer imprisonment for one and half year as

per the judgment of the trial Court. He came to be

dismissed from service. The appellant preferred an

appeal against the conviction and sentence which

was allowed and he was acquitted. The appellant

was reinstated in service. The authority concerned

divided the period of suspension of the appellant

into two parts; the first being the period

intervening his conviction by the Trial Court and

acquittal by the Appellate Court and the second

being from his acquittal till the date of his

reinstatement in service. With regard to the later

part, the authority concerned directed payment of

full salary after giving credit for the suspension

allowance that was drawn by him. However with

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regard to the earlier part the authority concerned

held that the appellant could not be said to be

fully exonerated and therefore, direction was

given to pay 3/4th of his salary for that period of

suspension. As such, he was refused 1/4th of his

salary for that period. The appellant filed a suit

for recovery of that part of salary, which was

decreed by the trial Court, dismissed by the

District Court and that dismissal of the suit was

confirmed by the High Court. The Hon'ble Apex

Court held that keeping in view the facts of the

case that the appellant was never hauled up for

departmental enquiry and that he was prosecuted

and ultimately acquitted and on being acquitted he

was reinstated and was paid full salary for the

period commencing from his acquittal and further

that even for the period in question the concerned

authority has not held that the suspension was

wholly justified because 3/4th of the salary is

ordered to be paid, the approach of the trial

Court was correct and unassailable and the decree

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passed by the trial Court came to be restored.

13. The learned Counsel for the deceased

respondent has pointed to the Office Memo issued

by the Government of India on 19.09.1975 and

particularly Clause (8) wherein, direction have

been given as to what action should be taken when

the appeal/revision against the conviction

succeeds. It is open for the competent authority

either to file an appeal against acquittal or to

initiate departmental enquiry if sufficient

grounds are there to initiate the same. If no such

steps are taken, the action as stated in paragraph

(3) has to be taken. Paragraph (3) reads as

under :-

"3. In cases where neither of the courses mentioned in Paragraph 3 is followed, a formal order should be issued setting aside the previous order imposing the penalty (Standard Form for such order is annexed - Form at the end of this chapter). In cases where the penalty imposed was dismissal, removal or compulsory retirement from service, full pay allowances will be paid from the date of acquittal to the date of rejoining

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duty and the period counted as duty for all purposes whereas for the period from the date of suspension/removal/dismissal to the date of acquittal, pay and allowance will be allowed as directed by the Competent Authority under FR 54(2) or FR 54(3) and the period treated as duty or non-duty under FR 54(4) OR FR 54(5), as the case may be."

14. The case of the deceased respondent is

governed by the Office Memo and particularly, the

above paragraph. This clause does not give any

discretion to the competent authority in the

matter of considering regularisation of the period

of suspension of an employee by treating it as

suspension only or the period spent on duty and

also in respect of the payment of back wages with

continuity in service.

15. In the above circumstances, since the

deceased respondent was given a clean chit in the

criminal case instituted against him, he would be

entitled to get his suspension period regularised

as the period spent on duty as well as back wages

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with continuity in service. The Tribunal has

rightly considered the facts of the case as well

as the law applicable thereto and has rightly

allowed the Original Application filed by the

deceased respondent. We do not find any reason to

interfere with the judgment and order passed by

the Tribunal.

16. Hence, the order :-

(i) The Writ Petition is dismissed.

(ii)           Rule is discharged.

(iii)          No costs.



[SANGITRAO S. PATIL, J.]               [T.V. NALAWADE, J.]

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