Raosaheb Tukaram Somwanshi vs Dist Superintendent Of Police ...
2017 Latest Caselaw 3145 Bom

          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                     BENCH AT AURANGABAD

                      
                     WRIT PETITION
                                   NO.3479 OF 2004
                                                   


Raosaheb s/o Tukaram Somwanshi,
age : 47 years, Occu.: Service,
A.S.I. Police Station, Paithan,
Tal. Paithan, District Aurangabad                        PETITIONER

        VERSUS

1.      The District Superintendent of 
        Police, (Rural) Kailas Shilp, 
        Near T.V. Centre HUDCO,
        Aurangabad

2.      The State of Maharashtra,
        Through Secretary, Home Department,
        Mantalaya, Mumbai                   RESPONDENTS

                         ----
Mr. A.S. Bajaj, Advocate for the Petitioner
Mrs.P.V. Diggikar, A.G.P. for respondents/State
                         ----

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

DATE : 14th JUNE, 2017

JUDGMENT : (PER : SANGITRAO S. PATIL, J) :

By this writ petition under Articles 226

and 227 of the Constitution of India, the

petitioner has challenged the order dated

11.06.2003 passed in Original Application No.6326

of 2002 by the Maharashtra Administrative Tribunal

at Bombay, Bench at Aurangabad ("Tribunal", for

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short). The Tribunal dismissed the application and

confirmed the order dated 14.05.2002 passed by the

Superintendent of Police, Aurangabad (Rural),

under which the suspension of the petitioner with

effect from 21.07.1993 to 05.08.1998 was treated

as suspension only which resulted into denial of

all the consequential benefits, on his

reinstatement, consequent upon his acquittal in a

criminal case.

2. The facts, in short, are that the

petitioner was serving as a Police Head Constable

in police station, Paithan in the year 1993. It

was alleged that he arrested the Sarpanch and

other six villagers of village Taru Pimpalgaon on

26.06.1993, in connection with the offence

punishable under Section 12(a) of the Bombay

Prevention of Gambling Act and took them to Police

Station, M.I.D.C. Paithan. On 26.06.1993 the

Deputy Sarpanch of village Taru Pimpalgaon met the

petitioner in the police station and requested to

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him to release the arrested villagers on bail. The

petitioner demanded Rs.500/- each, for releasing

the said villagers. The Deputy Sarpanch assured

the petitioner that he would collect the money

from all the accused persons and would pay the

amount demanded to him. Thereafter, the petitioner

released those seven persons including Sarpanch.

3. It was alleged that the petitioner gave

message to the Sarpanch namely Shaikh Usman

through the Deputy Sarpanch on 02.06.1993 and

demanded money. On the same day, the Sarpanch/

Complainant met the petitioner and paid him

Rs.250/-. The petitioner asked him to pay the

remaining amount as early as possible on the

threat of rearrest. The Sarpanch/Complainant was

not inclined to pay the money to the petitioner.

Therefore, he approached to the office of the Anti

Corruption Bureau (ACB) on 28.06.1993 and lodged

complaint against the petitioner. A trap was laid

on the same day. The petitioner was caught red

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handed while accepting the remaining amount of

Rs.250/- from the Sarpanch/Complainant. The

petitioner came to be arrested and Crime No.II-9

of 1993 came to be registered against him in

Police Station, Paithan for the offences

punishable under Sections 7 and 13(2) read with

Sections 13 (1)(d) of the Prevention of Corruption

Act.

4. The accused came to be suspended with

effect from 21.07.1993. He was under suspension

till 05.08.1998, on which day he came to be

reinstated.

5. Special Case No.2 of 1994 was registered

against the petitioner. He faced the trial which

ended in his acquittal on 30.06.2000.

6. The petitioner moved an application before

respondent No.1 - Superintendent of Police

(Rural), Aurangabad, informing about the acquittal

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of the above mentioned offences under the

Prevention of Corruption Act and claimed that the

period of his suspension from 21.07.1993 to

05.08.1998 may be treated as a period on duty and

he may be given all the consequential benefits

including full back wages. Respondent No.1 issued

notice on 18.04.2002 to the petitioner to show

cause and after considering the explanation given

by the petitioner, rejected his claim for treating

his suspension period as a period on duty and

denied the consequential benefits including full

back wages, as per the order passed on 14.05.2002.

The petitioner challenged that order by filing

Original Application No.362 of 2002 which came to

be dismissed on 11.06.2003.

7. The learned counsel for the petitioner

submits that once the petitioner got acquitted in

Special Case No.2 of 1994 of the offences

punishable under the Prevention of Corruption Act,

the petitioner was entitled to get full back wages

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and the period of his suspension was liable to be

treated as the period of on duty, in view of the

provisions of Rules 72 (1), (3) (5) and (7) of the

Maharashtra Civil Services (Joining Time, Foreign

Services and Payment During the Suspension,

Dismissal and Removal) Rules, 1981 (hereinafter

referred to as "the Rules of 1981"). He submits

that respondent No.1 has wrongly rejected the

claim of the petitioner on the ground that the

petitioner has not got a clear acquittal and that

he has been acquitted for want of sufficient

evidence. He submits that in view of the judgment

in the case of Dattatraya Vasudeo Kulkarni Versus

Director of Agriculture, Maharashtra and others,

1984 BCI (0) 35, it was necessary for respondent

No.1 to consider whether the petitioner has been

acquitted of blame and the question whether there

had been full exoneration was thoroughly

irrelevant. In the said judgment while considering

the second part of Rule 156 (a) of the Bombay

Civil Services Rules ("BCR", for short), it was

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observed that even when the Government Servant is

acquitted on the basis of benefit of doubt, he

must be held to have been acquitted of the blame.

It is further observed that the concept of

"honourable acquittal" or "full exoneration" are

irrelevant and immaterial.

8. The learned A.G.P. supports the impugned

orders and claims dismissal of the Writ Petition.

9. Here, it would be worthwhile to reproduce

Rule 156 (a), which reads as under :

"A servant of Government against whom proceedings have been taken either for his arrest for debt, or on a criminal charge, or who is detained under any law providing for preventive detention should be considered as under suspension for any periods, during which he is detained in custody, or is undergoing imprisonment, and not allowed to draw any pay and allowances (other than any subsistence allowance that may be granted in

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accordance with the principles laid down in Rule 151) for such periods, until the termination of the proceedings taken against him, or until he is released from detention and allowed to rejoin duty as the case may be. An adjustment of his allowances for such periods should thereafter be made according to the circumstances of the case, the full amount being given only in the event of the officer being acquitted of blame or (if the proceedings taken against him were for his arrest for debt) of its being proved that the liability arose from circumstances beyond his control, or the detention being held by competent authority to be unjustified."

10. It may be noted that the corresponding

Rules in BCR came to be repealed vide Rule 77 of

the Rules of 1981. Therefore, the present case

would be governed by Rule 72 (1), (3), (5) and (7)

of the Payments During the Suspension Rules, which

read thus:-

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"72. Re-instatement of a Government servant after suspension and specific order of the competent authority regarding pay and allowances etc. and treatment of period as spent on duty.

(1) When a Government servant who has been suspended is reinstated or would have been so re-instated but for his retirement on superannuation while under suspension, the authority competent to order reinstatement shall consider and make a specific order-

(a) regarding the pay and allowances to be paid 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.

(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 provision of sub-rule (8), be paid the full pay and allowances to which he would

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have been entitled, had he not been suspended:

Provided that where such authority is of the opinion that the termination of the proceedings instituted against the Government servant had been delayed due to reasons directly attributable to the Government servant, it may, after giving him an opportunity to make his representation within sixty days from the date on which the communication in this regard is served on him and after considering the representation, if any, submitted by him, direct, for reasons to be recorded in writing, that the Government servant shall be paid for the period of such delay only such amount (not being the whole) of such pay and allowances as it may determine.

(5) In cases other than those falling under sub-rules (2) and (3) the Government servant shall, subject to the provisions of sub-rules (8) and (9), be paid such amount (not being the whole) of the pay and allowances to which he would have been entitled had he not been suspended, as the

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competent authority may determine, after giving notice to the Government servant of the quantum proposed and after considering the representation, if any, submitted by him in that connection within such period which in no case shall exceed sixty days from the date on which the notice has been served, as may be specified in the notice.

(7) In a case falling under sub-rule (5) the period of suspension shall not be treated as a period spent on duty, unless the competent authority specifically directs that it shall be so treated for any specified purpose:

Provided that if the Government servant so desires, such authority may order that the period of suspension shall be converted into leave of any kind due and admissible to the Government servant.

11. It would be clear from the above referred

provisions of Rule 72 that the earlier provision

contained in the second part of Rule 156 (a) of

the BCR, that a Government Servant was entitled to

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get full amount of pay in the event of his being

acquitted of blame, has been removed. The

provisions of Rule 72 make it clear that the

discretion has been given to the Competent

Authority, after hearing the Government Servant,

to decide whether the period of suspension of the

Government Servant, who is acquitted of a criminal

charge, shall or shall not be treated as a period

spent on duty. Unless the Competent Authority

specially directs, it shall not be treated as a

period spent on duty. In view of the provisions of

Rule 72, which are applicable to the facts of the

present case, the judgment cited by the learned

counsel for the petitioner in the case of

Dattatraya Vasudeo Kulkarni (supra) based on the

provisions of BCR would be of no assistance to the

petitioner.

12. The learned counsel for the petitioner

cited a judgment in the case of Brahma Chandra

Gupta Versus Union of India, AIR 1984 SC 380,

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wherein the petitioner, who was serving as a Upper

Division Clerk in the Defence Accounts Department,

was prosecuted for the offence punishable under

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

Section 5 of the Indian Explosive Substances Act.

Pending the investigation, he was suspended on

14.05.1962. He was convicted by the trial Court,

but acquitted by the Appellate Court on

31.10.1964. He came to be reinstated with effect

from 03.09.1965. While ordering reinstatement in

service the Authority concerned was required to

consider the provisions contained in Article 193

of the Civil Service Regulation, as to how the

period of suspension should be treated. The

Authority concerned divided the period of

suspension of the appellant into two parts, the

first part being from 14.05.1962 to 31.10.1964

(the date of acquittal) and the second part being

from 31.10.1964 to 03.09.1965 (the date of

reinstatement). He directed payment of ¾th salary

for the suspension period of the first part and

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directed payment of full salary for the period of

suspension of the second part. As such he was

denied ¼th of his salary in respect of the first

part on the ground that the petitioner was not

fully exonerated. The petitioner filed suit for

recovery of Rs.3595.07 Ps. towards his ¼th salary

that was withheld, which was decreed by the trial

Court. The said decree was set aside by the

District Court on the ground that the petitioner

could not be said to have been fully exonerated.

The High Court confirmed the judgment and decree

of the District Court; however, the Hon'ble the

Supreme Court restored the decree passed by the

Trial Court. It was observed that the petitioner

was never hauled up for departmental enquiry, that

he was prosecuted and ultimately acquitted and on

being acquitted he was reinstated and was paid

full salary for the period of commencing from his

acquittal and even for the period of suspension

prior to his acquittal, the Authority concerned

did not hold that the suspension was wholly

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justified because ¾th of the salary was ordered to

be paid to the petitioner.

13. It is evident from the facts of the above

cited case that it was governed under Article 193

of the Civil Service Regulation, which cannot be

said to be pari materia to Rule 72 of the Rules of

1981 and furthermore, in view of the

distinguishable fact that the Authority concerned

had not held that the suspension of the petitioner

therein was fully justified while ordering payment

of ¾ salary of the first part of the suspension.

Consequently, the said judgment also would not be

helpful to the petitioner.

14. The third judgment cited by the learned

counsel for the petitioner in the case of

Hindustan Tin Works Private Limited Vs. Employees

of Hindustan Tin Works Private Limited, AIR 1979

SC 75, has no bearing on the issues involved in

this case, since it refers to the payment of back

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wages and other consequential benefits to the

labourer retrenched unlawfully.

15. Here, reference may be made to the

judgment in the case of Krishnakant Raghunath

Bibhavnekar Vs. State of Maharashtra and others,

(1997) 3 SCC 636, to which the attention of the

learned counsel for the petitioner was drawn at

the time of hearing. It is squarely applicable to

the facts of the present case. In that case,

pending criminal trial, the appellant was placed

under the suspension and was paid subsistence

allowance. After his acquittal he was reinstated

but consequential benefits were not given to him.

It was held that Rule 72 vests discretion with the

Disciplinary Authority to regulate the appellant

during the suspension period. Therefore, the claim

of the appellant to treat suspension period as his

period spent on duty with full back wages, was

held to have been rightly rejected with the

following observations:-

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"Conduct of a public servant has to be an open book; corrupt would be known to everyone. The reputation would gain notoriety. Though legal evidence may be insufficient to bring home the guilt beyond doubt or foolproof. The act of reinstatement sends ripples among the people in the office/locality and shows wrong signals for degeneration of morality, integrity and rightful conduct and efficient performance of public duty. The constitutional animation of public faith and credit given to public acts, would be undermined. Every act or the conduct of a public servant should be to effectuate the public purpose and constitutional objective. Public servant renders himself accountable to the public. The very cause for suspension of the petitioner and taking punitive action against him was his conduct that led to his prosecution for the offences under the Indian Penal Code. If the conduct alleged is the foundation for prosecution, though it may end in acquittal on appreciation or lack of sufficient evidence, the question emerges whether the government servant

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prosecuted for commission of defalcation of public funds and fabrication of the records, though culminated into acquittal, is entitled to be reinstated with consequential benefits. In our considered view this grant of consequential benefits with all back wages etc. cannot be as a matter of course. We think that it would deleterious to the maintenance of the discipline if a person suspended on valid considerations is given full back wages as a matter of course on his acquittal. Two courses are open to the disciplinary authority, viz., it may enquire into misconduct unless, the selfsame conduct was subject of charge and on trial the acquittal was recorded on a positive finding that the accused did not commit the offence at all; but acquittal is not on benefit of doubt given. Appropriate action may be taken thereon. Even otherwise, 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 (and on payment of subsistence allowance etc.) Rules 72(3), 72 (5) and 72 (7) of

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the Rules give a discretion to the disciplinary authority.

16. In the present case, the petitioner was

prosecuted for the offence of demanding and

accepting bribe. In para 34 of the judgment of

acquittal delivered by the learned Special Judge

it is specifically mentioned that the prosecution

has failed to prove the offence against the

accused beyond reasonable doubt. The learned

Special Judge, thus, found the case of the

prosecution doubtful. In the circumstances,

respondent No.1 followed the principles of natural

justice by giving show cause notice to the

petitioner and after considering the explanation

given by the petitioner, which was not found to be

satisfactory, rejected the claim of the petitioner

for treating the period of his suspension as the

period spent on duty with back wages. Respondent

No.1 has rightly exercised his discretion

considering the allegations made against the

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petitioner. The Tribunal has rightly upheld the

order passed by respondent No.1, in view of the

observations made in the above-referred case. We

are not inclined to interfere in the orders under

challenge. The writ petition is devoid of any

substance. It is liable to be dismissed. Hence, we

pass the following order :-

O R D E R

(i) The Writ Petition is dismissed.

(ii) Rule is discharged accordingly.

(iii) No costs.

             Sd/-                                     Sd/-
     [SANGITRAO S. PATIL]                      [T.V. NALAWADE]
            JUDGE                                   JUDGE


sam/wp3479-2004