Bombay High Court
Manohar S/O Shankar Dhoke vs The Chief Executive Officer, ... on 8 March, 2021
Bench: Avinash G. Gharote
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1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
WRIT PETITION NO. 172 OF 2018
PETITIONERS: Manohar S/o Shankar Dhoke,
aged about 53 years, Occ. Service,
Permanently residing at Ram Nagar,
Ward No. 20, By-pass Potegaon Road,
Near Reddy Godown, Gadchiroli,
District - Gadchiroli.
...VERSUS...
RESPONDENTS: 1. The Chief Executive Officer,
Zilla Parishad, Gadchiroli,
2. The Additional Commissioner,
Nagpur Division, Nagpur.
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None for Petitioner.
Mr. W.G.Pounikar, Advocate for respondent No.1
Ms. H. Jaipurkar, AGP for respondent No.2
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CORAM : AVINASH G. GHAROTE, J.
DATE : 08/03/2021.
1] None appears for the petitioner. Mr. W.G.Pounikar,
learned counsel appears for respondent No.1 and Ms. Hemlata
Jaipurkar, learned AGP appears for respondent No.2.
2] Notice for final disposal of the matter was issued on
20.03.2018.
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3] The short point involved in this petition is denial of the
benefit of full payment to the petitioner for the period of suspension
from 20.3.2012 to 29.4.2014, on the ground that the petitioner was
exonerated by the criminal Court.
4] The authorities below have by the impugned orders
dated 03.10.2016 and 06.04.2017, denied benefit of full payment
of salary to the petitioner on the ground that the acquittal of the
petitioner by the J.M.F.C. Nagpur, in Misc. Criminal Application No.
180/12, by judgment dated 16.11.2013, was not an honourable
acquittal, but on account of benefit of doubt. Reliance is also placed
upon Rule 72 of the Maharashtra Civil Services (Joining Time,
Foreign Service and Payments During Suspension, Dismissal and
Removal) Rules, 1981, to contend that even in case of
reinstatement, it was permissible under clauses 3, 5 and 7 of Rule
72 of the Rules, to deny the benefit of treating the period of
suspension as period on duty.
5] Learned AGP appearing for respondent no. 2 supports
the impugned order. Reliance is also placed upon Krushnakant
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Raghunath Bibhavnekar vrs. State of Mah and others. [(1997) 3 SCC
636].
6] No doubt, in the instant matter, the judgment of
acquittal of the petitioner dated 16.11.2013, in para 17 records that
the benefit of doubt should be given to the petitioner, however, such
an observation is made on the basis of the fact that the evidence
tendered by the prosecution contains material omissions, due to
which the issues as framed were answered in negative and the
petitioner was acquitted of the charges, as framed against him. This
would clearly indicate that the prosecution failed to bring home the
guilt of the accused by necessary and cogent evidence, as required
by law. That being the position, a stray observation in the judgment
dated 16.11.2013, cannot be construed to mean that the acquittal of
the petitioner, was not a clean acquittal, but was on account of any
benefit of doubt.
7] That apart, there is another factor which has not been
considered. It is an admitted position that the petitioner was also
subjected to a departmental enquiry on account of his facing a
prosecution in Criminal Case No. 280/2012, in which, the petitioner
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was placed under suspension on 20.3.2012 and the departmental
enquiry continued, which resulted in his being exonerated, leading
to his reinstatement on 29.4.2014. Thus, if the misconduct of the
petitioner was of the nature which would require punishment to be
imposed upon him, it could have been done under the departmental
enquiry. The exoneration of the petitioner in the departmental
enquiry clearly adds to the benefit of the petitioner. In case of
Krishinikant Bibhavnekar (supra), the issue of initiation and
exoneration of the delinquent in a departmental enquiry was not
under consideration, which is why it has been indicated that the
initiation of a departmental enquiry was one of the course which
could have been adopted.
8] In the instant case, not only the judgment of the
J.M.F.C. Nagpur in Criminal Case No. 280/2012, acquits the
petitioner, but the departmental enquiry also exonerates him of any
charges of misconduct. This being the situation, the benefit of
treating the period of suspension as period on duty clearly was
permissible and ought to have been granted. The authorities below,
therefore, clearly appear not to have applied their mind to this
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aspect of the matter, due to which, the same cannot be sustained
and are accordingly quashed and set aside. It is directed that the
period of suspension from 20.03.2012 to 29.04.2014 be treated as
period on duty and the arrears of salary and allowances, as
permissible in law, be paid to the petitioner.
9] Rule accordingly. No costs.
JUDGE
Rvjalit
