Arun Kumar Sharma vs State Of Chhattisgarh
2022 Latest Caselaw 1195 Chatt

                                         1

                                                                             NAFR
            HIGH COURT OF CHHATTISGARH, BILASPUR

                           WPS No. 3904 of 2020

   1. Arun Kumar Sharma S/o Late L.P. Sharma Aged About 73 Years Retired
      Cleark R.T.O. R/o Behind Jiwaji Rice Mill Nehru Nagar, Bilaspur, Tahsil And
      District- Bilaspur, Chhattisgarh, District : Bilaspur, Chhattisgarh

                                                                     ---- Petitioner

                                      Versus

   1. State Of Chhattisgarh Through- The Secretary, Department Of Transport,
      Mantralaya, Mahanadi Bhawan, Atal Nagar, Raipur, District- Raipur,
      Chhattisgarh,

   2. Transport Commissioner, Naya Raipur, Atal Nagar, Raipur, District- Raipur,
      Chhattisgarh,

   3. District Transport Office Jangir, District- Janjgir-Champa, Chhattisgarh,

   4. Joint Director, Treasury Accounts And Pension Bilaspur, District- Bilaspur,
      Chhattisgarh,                                       ---- Respondents

For Petitioner : Mr Hemant Kesharwani, Advocate For State : Ms. Sunita Jain, G.A.

Hon'ble Shri Justice P. Sam Koshy Order On Board 08.03.2022

1. The present writ petition has been filed seeking for the relief of

consequential benefits upon acquittal of the petitioner from the

criminal that was levelled against the petitioner.

2. The brief facts relevant for the disposal of the present writ petition is

that the petitioner was working as an Assistant Grade-II in the

Transport Department. While the petitioner was posted at the office of

the transport in District Janjgir Champa, he was involved in a criminal

case. As per F.I.R. that was lodged on 31.03.2004, offences u/s 120-

B, 420, 471 of the IPC and 13(2) 13(1)(d)(b) of prevention of

Corruption Act 1988 were levelled against the petitioner and other

accused persons. The charge sheet in the criminal case was filed

before the concerned Court on 09.06.2007. Immediately upon the

charge sheet being filed in a criminal Court, the department placed

the services of the petitioner under suspension on 13.09.2007

invoking the provisions of Rule 9 (1)(b) of the Chhattishgarh Civil

Service (Classification, Control and Appeal) Rules 1966.

3. During the pendency of the criminal case before the concerned

Special Court i.e. the special Judge CBI Raipur, the petitioner while

remaining under suspension, crossed the age of superannuation and

stood retired from service w.e.f. 31.08.2008. Upon his retirement, the

petitioner was initially granted provisional pension of 90% uptill

15.05.2019 and thereafter the petitioner is being paid full pension.

However, upon his retirement the petitioner was not paid gratuity

amount, leave encashment, time bound pay-scale, difference of

salary and also difference of pension.

4. The present writ petition has been filed claiming for the following

reliefs:-

10.1) That, this Hon'ble Court may kindly be pleased to issue direction for respondent authorities to consider the suspension period as service period and grant all service benefit. 10.2) That, this Hon'ble Court may kindly be pleased to direct the respondent authorities to grant full pension in place of provisional pension including arrears of amount with interest. 10.3) That, this Hon'ble Court may kindly be pleased to direct the respondent authorities to grant full Gratuity, leave encashment amount, benefit of six pay commission with interest, pension in place of provisional pension including arrears of amount with interest.

10.4) Any other relief which this Hon'ble Court may deem fit and proper also kindly be granted to the petitioner, in the interest of justice.

5. The petitioner after his acquittal had approached the respondents for

the aforesaid reliefs. However, they have now vide the impugned

order dated 15.05.2019 (Annexure P-1) turned down the request of

the petitioner. The refusal to grant the consequential benefits to the

petitioner was only on the ground that against the judgment of

acquittal, the CBI has preferred an appeal i.e. CRMP No. 2650 of

2018. The petitioner in-fact had been acquitted by the Criminal Court

finally on 30.04.2018. Against the said acquittal, the CBI preferred the

aforementioned appeal before the High Court and which is still

pending consideration.

6. It is an admitted position as is reflected from the pleadings of the writ

petition as also the reply of the respondents that the services of the

petitioner was placed under suspension only on account of his being

issued with a charge sheet in a criminal case registered by the CBI.

The department as such admittedly has not initiated any departmental

enquiry against the petitioner during his service period or at any point

of time at a later stage. The criminal case which was registered

against the petitioner now stands finalized by the judgment of

acquittal dated 30.04.2018.

7. Once, when the employee who has been suspended on account of

being implicated in a criminal case and he stands acquitted from the

criminal case and in case if the respondents have not initiated any

disciplinary proceedings against the petitioner, the natural

consequences would be to treat the order of suspension as if, it never

existed and the petitioner for all practical purposes, have to be treated

to be in service.

8. The Hon'ble Supreme Court right from the time of the landmark

judgments rendered in the case of Union of India Vs. K. V.

Jankiraman AIR 1991 SC 2010, has been consistently of the view

that in the event of a delinquent employee getting exonerated from a

departmental enquiry or from a criminal case, the consequential

benefits have to be extended to the petitioner as if the departmental

enquiry, the suspension or the criminal case were never instituted and

for all practical purposes, he has to be treated at par with his

immediate junior.

9. In the instant case, the petitioner was placed under suspension on

13.09.2007. The petitioner crossed the age of superannuation on

31.08.2008. During the said period, the petitioner was paid only the

subsistence allowance. Upon his retirement also he was denied of

gratuity, leave encashment and benefit of time bound pay scale etc.

The petitioner thus, upon being acquitted in the criminal case, was

entitled to claim the benefits in terms of FR 54-B. For ready reference

54-B is being reproduced here-in-under:-

FR. 54 B- (1) When a Government servant, who has been suspended is re-instated or would have been so re-instated but for his retirement superannuation while under suspension, the authority competent to order instatement shall consider and make a specific order-

(a) regarding the pay and allowance to be paid to the Government servant for the period of suspension ending with re- instatement 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.

(2) Notwithstanding anything contained in Rule 53, where a Government servant under suspension dies before the disciplinary or Court proceedings instituted against him are concluded, the period between the date of suspension and the date of death, shall be treated as duty for all purposes and his family, shall be paid the full pay and allowances for that period to which he would have been entitled had he not been suspended, subject to adjustment in respect of subsistence allowance already paid.

(3) Where the authority competent to order re-instatement 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 bee 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 60 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 allowance as it may determine.

(4) In a case falling under sub-rule (3) the period of suspension, shall be treated as a period spent on duty for all purposes.

(5) In case 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 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 withing 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.

(6) Where suspension is revoked pending finalization of the disciplinary or Court proceedings, any order passed under sub-rule (1) before the

conclusion of the proceedings against the Government 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.

(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.

Note- The order of the competent authority under the preceding proviso, shall be absolute and no higher sanction shall be necessary for the grant of -

(a) extraordinary leave in excess of three months in the case of temporary Government servant; and

(b) leave of any kind in excess of five years in the case of permanent or quasi-permanent Government servant. (8) The payment of allowances under sub-rule (2) sub-rule (3) or sub-rule (5) shall be subject to all other conditions under which such allowances are admissible.

10. The plain perusal of the aforesaid provisions would clearly

indicate that the moment a government servant who is placed under

suspension if upon his superannuation under suspension, the

competent authority has to take an appropriate decision in respect of

benefits of pay and allowances payable to the government servant for

the period of suspension ending on his retirement and for all the other

consequential benefits as well. It is under this provision perhaps that

the impugned order seems to have been passed i.e. Annexure P-1

dated 15.05.2019, though, there is no provision quoted.

11.However, what is to be seen is that the reason for denial of the

benefits to the petitioner was on account of an appeal being preferred

by the CBI before the High Court. It is necessary to mention at the

juncture that the appeal challenging the judgment of acquittal, cannot

be considered as continuation of a trial or a continuation of criminal

proceedings. The trial which the petitioner was facing came to end

and stood concluded the moment the judgment of the acquittal was

passed.

12.It would be pertinent to mention a circular of the State Government

dated 15.09.1977 dealing with a circumstance where an employee

stood acquitted in the criminal case. For ready reference relevant

portion of the said circular dated 15.09.1977 of the General

Administration Department of Government of Madhaya Pradesh is

reproduced here-in-under:-

lan HkZ esa mYyf[kr Kkiu dk vf/kdz e .k djrs gq , ] jkT; 'kklu }kjk vkijkf/kd ekeyksa esa nks " k&fl) ik, tkus okys 'kkldh; lso d ds fo:) fdl iz d kj dk;Z o kgh dh tk;] bl lac a/ k esa lHkh fu;q f Dr iz k f/kdkfj;ksa ds ekxZ n 'kZ u ds fy, fuEufyf[kr vuq n s' k tkjh fd,tkrs gS % & ^^tc fdlh 'kkldh; lso d dks U;k;ky; }kjk fdlh nf.Mr vkjksi ds lac a/ k esa nks " k&fl) Bgjk;k x;k gks] rks vuq ' kkfld iz k f/kdkjh dks pkfg;s fd os ml 'kkldh; lso ds ds lac a/ k esa tks fu.kZ ; fn;k x;k gS ] mldk rq j Ur v/;;u djsaA ,sl s v/;;u ds i'pkr~ ;fn ;g ik;k tkrk gS fd mls ftl vkpj.k ds dkj.k nks " k&fl) ik;k x;k gS ] og ,sl k gS fd mlls mldk uS f rd iru gksu s dk vkHkkl gksr k gks vkS j og yksd fgr esa lso k esa j[kus ds ;ksX ; ugha gS ] rks vuq ' kklfud iz k f/kdkjh dks ,sl s 'kkldh; lso d ds fo:) e/;iz n s' k flfoy lso k ¼oxhZ d j.k] fu;a= .k rFkk vihy½ fu;e] 1966 ds fu;e 19 ¼,d½ ds var xZ r mfpr 'kkfLr vf/kjksf ir djus ds fy, rq j Ur dk;Z o kgh djuk pkfg;sA bl iz d kj dh dk;Z o kgh djus ds fy, bl ckr dk dksb Z iz f rca/ k ugha jgsx k fd ml 'kkldh; lso d us viuh nks " k&flf) ds fo:) vihy nk;j dj nh gS vksj blfy;s mlds fo:) mi;q Z D r fu;e ds var xZ r 'kkfLr vf/kjksf ir ugha dh tk ldrhA ;fn fdlh 'kkldh; lso d us vihy iz L rq r dh nh gks] rks Hkh ml ij mi;q Z D r fu;e ds var xZ r mfpr 'kkfLr vf/kjksf ir dh tk ldrh gS A bl iz d kj 'kkfLr vf/kjksf ir djus ls igys vko';rkuq l kj yksd lso k vk;sx ls Hkh ijke'kZ djuk t:jh gS A ;fn vihy esa] ml 'kkldh; lso d dks funksZ "k ik, tkus ds dkj.k] fupys U;k;ky; ds fu.kZ ; dks fujLr dj fn;k tkrk gS rks vkuq ' kkfld iz k f/kdkjh Hkh fupys U;k;ky; ds nks " k&flf) fu.kZ ; ds vk/kkj ij vius iwo Z esa ikfjr 'kkfLr lac a/ kh vkns' k dks fujLr dj ftl vof/k esa mls inP;q r ;k lso k lekfIr ds vkns' k ds dkj.k lso k ls vyx jguk iM+k Fkk] bl vof/k dks lHkh iz ; kst uksa ds fy, drZ O ; dh vof/k ekudj iw. kZ osr u ,oa HkRrs dk Hkq x rku djuk pkfg;sA ^^

2- lHkh fu;q f Dr iz k f/kdkfj;ksa dks ;g funsZ ' k fn;k tkrk gS fd bl iz d kj ds ekeys esa mi;q Z D r vuq n s' k ds vkuq l kj dh dk;Z o kgh djsaA bl vuq n s' k ds ikyu u djus ij ftEesn kj 'kkldh; lso d ls bl vuq n s' k dks mis{ kk djus ds dkj.k 'kklu dks ftruk foRrh; uq d lku gksx k] og olwy fd;k tk,xkA blds vfrfjDr] og vuq ' kkfld] og vuq ' kklfud dk;Z o kgh dk Hkh Hkkxh gks ldrk gS aA

13.What has also to be taken note of at this juncture is that the services

of the petitioner was placed under suspension only on account of the

registration of an F.I.R for the offences under the provisions of the IPC

as also under the Prevention of Corruption Act. The moment the

petitioner stands acquitted from the said offences, the very basis for

placing the petitioner under suspension does not exist any further. The

grounds available for placement of the petitioner under suspension

itself is no longer valid in the light of the judgment of acquittal in favour

of the petitioner.

14. Considering the aforesaid facts and circumstances of the case and

taking into consideration the judgment of acquittal, this Court is of the

firm view that the reason for which the petitioner's claim has been

refused or denied vide Annexure P-1 does not seem to be proper, legal

and justified. In as much as, once when the petitioner stands acquitted

in a criminal case unless that judgment is set aside by a competent

Court of law, the petitioner for all practical purposes stands and

remains acquitted.

15. Under the circumstances it was incumbent upon the respondents to

have honored the judgment of acquittal and grant the benefits which

the petitioner would otherwise have been entitled for and which was

denied or deprived to the petitioner only on account of his being

implicated in a criminal case in which he has subsequently been

acquitted. Mere filing of an appeal by the CBI before the High Court,

cannot be considered to be continuation of the criminal proceedings or

the continuation of the trial. The impugned order to that effect is

unjustified and unsustainable, deserves to be and is accordingly

quahsed. The present writ petition stands allowed. The respondents

are directed to consider the claim of the petitioner so far as grant of

difference of pay for the period of suspension and also consider for

grant of the unpaid gratuity, the leave encashment, the time bound

pay-scale and further the difference of pension for the period from the

date of retirement till 15.05.2019, during which period the petitioner

was paid only the provisional pension. Let an appropriate decision in

this regard be considered and passed and all the admissible dues in

terms of FR 54 B be paid to the petitioner at the earliest preferably

within an outer limit of 3 months from the date of receipt of copy of this

order.

16. The present writ petition thus allowed and disposed of.

Sd/-

(P. Sam Koshy) Judge Jyoti