Dr. R S Senger vs State Of Chhattisgarh
2023 Latest Caselaw 40 Chatt

                                     1

                                                                     NAFR
             HIGH COURT OF CHHATTISGARH, BILASPUR
                       Writ Appeal No. 340 of 2019

Dr. R.S. Senger S/o Shri M.R.S. Senger Aged About 58 Years Working
On The Post Of Post Graduate Medical Officer (PGMO) at District
Hospital Baikunthpur, Dist.- Koriya (C.G.)
                                                              ---- Appellant
                                   Versus
1.    State of Chhattisgarh Through The Secretary, Health Services
      Department, Ministry At Mahanadi Bhawan, Atal Nagar, Raipur,
      Dist. - Raipur (C.G.)
2.    Director Health Services 3rd Floor, Indrawati Bhawan, Atal Nagar,
      Raipur, Dist. - Raipur (C.G.)
3.    Chief Medical Health Officer Baikunthpur, Dist. - Koriya (C.G.)
                                                         ---- Respondents

(Cause-title taken from Case Information System)

For Appellant : Mr. Jai Prakash Shukla, Advocate. For Respondents : Mr. Jitendra Pali, Deputy Advocate General.

Hon'ble Shri Arup Kumar Goswami, Chief Justice

Hon'ble Shri Arvind Singh Chandel, Judge

Judgment on Board

Per Arup Kumar Goswami, Chief Justice

03.01.2023

Heard Mr. Jai Prakash Shukla, learned counsel for the appellant.

Also heard Mr. Jitendra Pali, learned Deputy Advocate General,

appearing for the respondents.

2. The appeal is presented against an order dated 19.06.2019 passed

by the learned Single Judge in Writ Petition (S) No. 4325 of 2019,

dismissing the writ petition.

3. The appellant is an Ophthalmologist. The appellant, while working

as Post Graduate Medical Officer (PGMO) at District Hospital

Baikunthpur, was arrested on 18.08.1994 under Sections 420, 467, 468,

409 and 120-B of the Indian Penal Code and Sections 7, 8, 9 of the

Prevention of Corruption Act, 1988 (for short, 'Act of 1988') and Sections

3A, 3B and 4 of MP Affiliated Examination Act, 1937 (for short, 'Act of

1937'), on the allegation of leaking Pre-Medical Text (PMT) question

papers. By an order dated 18.08.1994, the appellant came to be

suspended because of such arrest.

4. It is relevant to state that in Special Crime No. 6/1994, by judgment

dated 30.08.2003, the learned First Additional Session Judge and Special

Judge acquitted the appellant. It is also relevant to take note of the fact

that in the said Special Crime No. 6/1994 there were as many as 10

accused persons.

5. It also appears that a charge-sheet was issued on 10.01.1997.

6. However, Mr. Pali submits that apart from issuing the charge-sheet,

no other steps had been taken in the said disciplinary proceeding as a

result of which for all intents and purposes it must be deemed that the

disciplinary proceeding was dropped.

7. By an order dated 30.03.2007, in view of acquittal of the appellant

in Special Crime No. 6/1994, suspension was revoked.

8. The writ petition was filed by the appellant praying for direction to

pay full salary during the period of suspension and to fix the salary as per

recommendation of 6th Pay Commission and to extend the benefits

accordingly.

9. Claim for fixation of salary on the basis of recommendation of 6 th

Pay Commission was made on the basis that the appellant was being

paid salary as fixed under the recommendation of the 5th Pay

Commission.

10. In the appeal, it is stated that even though 7 th Pay Commission

recommendation had also come into effect, the appellant was still being

paid salary on the basis of pay fixed on the basis of recommendation on

the 5th Pay Commission and accordingly, had prayed for fixation of salary

on the basis of 7th Pay Commission recommendation as well.

11. The learned Single Judge rejected the claim of the appellant on the

ground of delay and laches, as the writ petition was filed after more than

12 years of his reinstatement. The learned Single Judge also observed

that even otherwise there was no merit in the writ petition as the appellant

was involved in a criminal case which was sufficient enough to place him

under suspension.

12. This case was heard-in-part on 03.12.2022 and on that day this

Court had passed the following order:

"Mr. Jai Prakash Shukla, learned counsel for the

appellant submits that the only issue that is surviving

for consideration in this appeal is as to whether the

appellant would be entitled to full pay and allowances

during the period of suspension.

He submits that if the answer is in the affirmative, a

direction to the respondents authorities to re-compute

the fixation of salary, which was based on

recommendation of 6th and 7th pay commission, would

be called for, in as much as such computation had

been effected on the basis of subsistence allowance

paid to the petitioner.

Heard-in-part.

List this case in part-I hearing list on 13.12.2022 on

the top of the list.

Mr. Raghavendra Pradhan, learned Additional

Advocate General, appearing for the respondents, is

present."

13. Mr. Shukla submits that the appellant having been acquitted of the

criminal charges, it must be held that the suspension of appellant was

unjustified, and therefore, in absence of any disciplinary proceeding being

concluded, denial of full salary for the period of suspension would be

wholly arbitrary and illegal. He has submitted that though there was some

delay in approaching the Court to ventilate his grievances, the appellant

had been pursuing his remedy before the authorities by way of filing of

representations and only when it became apparent that such

representations have fallen in deaf ears, the appellant had taken

recourse to filing of the writ petition. It is also submitted by him that the

observation of the learned Single Judge that immediately after acquittal of

the appellant, he was reinstated is factually incorrect inasmuch as it took

nearly 3½ years for the authorities to reinstate the appellant after his

acquittal, and therefore, in any event the appellant would be entitled to

full salary from the date of his acquittal till the date of revocation of the

order of suspension.

14. Mr. Pali has submitted that as the appellant was involved in a crime,

he had disabled himself from rendering any services at the first instance

as he was arrested and merely because subsequently, he was acquitted

on benefit of doubt, the same would not entitle him to claim back-wages.

He has, however, fairly submitted that there was no justification for not

reinstating the appellant immediately after acquittal earned by the

appellant.

15. We have considered the submissions of the learned counsel for the

parties and have perused the materials on record.

16. No doubt, there was delay in approaching the Court by the

appellant. There is no satisfactory explanation other than filing of

representations repeatedly by the appellant. However, taking note of the

fact that the appellant was acquitted in the criminal case, albeit, on

benefit of doubt, and that the authorities themselves had not taken any

action immediately on such acquittal by way of reinstating the appellant

and also having regard to the fact that the disciplinary proceedings

initiated against the appellant was abandoned, we are of the opinion that

it will be inequitable to dismiss the writ petition solely on the ground of

delay and laches.

17. We find sufficient force in the argument of Mr. Pali that from the

date of suspension to date of acquittal the appellant cannot claim, as a

matter of right, full salary.

18. Though Mr. Shukla sought to contend that the appellant was

honorably acquitted, perusal of the judgment would go to show that the

prosecution failed to prove the guilt of the accused beyond reasonable

doubt and as such, benefit of doubt was accorded to the appellant and

other accused persons.

19. In that view of the matter, directing the authorities to make full

payment of salary for the period from 18.08.1994 to 30.08.2003 does not

arise.

20. There is no explanation whatsoever as to why the authorities took

3½ long years in reinstating the appellant. There was no impediment for

taking the service of the appellant and the appellant was arbitrarily

prevented from discharging his duties after he had earned his acquittal.

21. In that view of the matter, we are of the considered opinion that the

appellant is entitled to full pay and allowances for the period from

30.08.2003 to 17.04.2007, i.e., the date on which the appellant resumed

his duties. Ordered accordingly.

22. A consequential direction is also issued to the authorities to

re-compute the salary of the appellant based on the 6 th and 7th Pay

Commission recommendations, as for the aforesaid period, only the

subsistence allowance was reckoned for the purpose of such

computation.

23. The aforesaid directions would be complied with within a period of 3

months from the date of receipt of a certified copy of this order.

24. The writ appeal stands partly allowed. No cost.

                             Sd/-                                        Sd/-
                     (Arup Kumar Goswami)                       (Arvind Singh Chandel)
                          Chief Justice                                 Judge

Brijmohan