Madras High Court
S.Gurusamy vs Senior Divisional Security ... on 20 December, 2021
W.P.No.20406 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 20.12.2021
CORAM:
THE HONOURABLE MR. JUSTICE V.PARTHIBAN
W.P.No.20406 of 2021
S.Gurusamy ... Petitioner
Vs.
Senior Divisional Security Commissioner,
Office of the Railway Protection Force,
NGO Building, 5th Floor,
Chennai - 3. ... Respondent
Prayer: Writ Petition filed under Article 226 of the Constitution of India
praying to issue a Writ of Certiorarified Mandamus to call for the records
and quash the order No.M/XP/500/Sett/2021 issued by the Respondent in
the reply letter dated 24.08.2021 and to direct the Respondent to provide
the retirement monetary benefits namely., Commuted salary payment,
Gratuity payment, PF Settlement payment, Encashment of 300 days LAP
payment, Family Pension payment, Transfer grant, Pensioner Identity
Card, Retirement Medical Identity Card for the petitioner and his wife
and Family Railway free pass First class to the petitioner.
For Petitioner : Mr.A.V.Somasundaram
For Respondent : Mr.M.Vijay Anand
Page No.1 of 12
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W.P.No.20406 of 2021
ORDER
This Writ Petition has been filed to issue a Writ of Certiorarified
Mandamus to call for the records and quash the order
No.M/XP/500/Sett/2021 issued by the respondent in the reply letter dated
24.08.2021 and to direct the respondent to provide the retirement
monetary benefits namely, Commuted salary payment, Gratuity payment,
PF Settlement payment, Encashment of 300 days LAP payment, Family
Pension payment, Transfer grant, Pensioner Identity Card, Retirement
Medical Identity Card for the petitioner and his wife and Family Railway
free pass First class to the petitioner.
2.The case of the petitioner is that he was appointed as a Rachak in
the Railway Protection Force on 10.11.1980 and later re-designated as
Constable and posted as Head Constable on 05.06.2009 and subsequently
he retired on 29.02.2020 on attaining the age of superannuation. In 2012,
the Central Bureau of Investigation initiated criminal proceedings against
the petitioner for the offences under Sections 7 and 13(2) r/w 13(1) d of
the Prevention of Corruption Act, 1988. The trial Court (Principal
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W.P.No.20406 of 2021
Special Court for CBI Cases, VIII Additional City Civil Court, Chennai),
after protracted trial, acquitted the petitioner from all charges, vide
judgment dated 10.02.2017 in Calendar Case No.21 of 2012 on the file .
3. Thereafter, departmental enquiry was ordered on 30.05.2018 and
the Enquiry Officer, on conclusion of the enquiry, found that all the
charges levelled against the petitioner in the departmental proceedings,
were not proved. He submitted a report on 30.12.2019. After exoneration
of the petitioner, his suspension period was also treated as "on duty".
4. Subsequently on 25.02.2020, the petitioner was sanctioned only
provisional pension on the ground that the criminal appeal in
Crl.A.No.109 of 2018, is pending before this Court as against the trial
Court's acquittal. The petitioner, vide representation dated 29.02.2020,
requested the respondent to grant him all the arrears of pay and
allowances and other pensionary benefits, as filing an appeal against the
trial Court's judgment cannot said to be in continuance of the criminal
case. However, vide order dated 24.08.2021, the respondent informed
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W.P.No.20406 of 2021
the petitioner that, in view of the pendency of the judicial proceedings
against him, the retiral benefits cannot be settled till the outcome of the
pending appeal before this Court. Challenging the same, the petitioner is
before this Court by filing the present Writ Petition for the relief stated
supra.
5. The learned counsel for the petitioner straightaway drew the
attention of this Court in regard to the legal contention that filing an
appeal against the Trial Court's judgment acquitting the petitioner, cannot
be construed as a pendency of the judicial proceedings for the authority
to withhold the pensionary benefits that are otherwise admissible and
payable to the petitioner. In this connection, a reference is drawn to the
Division Bench order of this Court in W.P.No.18949 of 2014 dated
27.08.2015 (S.Rajagopal Vs. The Registrar, Central Administrative
Tribunal, Chennai Bench and two others). The learned counsel
particularly relied on the following observations and the ruling of the
Division Bench:
''16. In R.C.Dubey v. M.P.State Electricity
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W.P.No.20406 of 2021
Board reported in 2013 SCC Online MP 1004, the
petitioner therein was granted the benefit of First
Higher Pay Scale, by order, dated 23.8.1990, in
the post of Junior Engineer. He was entiteld to
Second Higher Pay Scale, which was not granted,
because of the criminal prosecution launched
against the petitioner, under the Prevention of
Corruption Act, by Lokayukt, which led to
suspension. On 12.12.2000, the petitioner therein
was acquitted. Thereafter, he was reinstated on
3.1.2001. As his request for grant of higher pay
scale, was not considered, he preferred a Writ
Petition, which was disposed of, on 8.3.2006, with
a direction to the respondent therein to consider
his claim. Subsequently, the Department rejected
his claim, stating that the prosecution has filed a
Criminal appeal, against acquittal and therefore,
recommendations were given in a sealed cover.
Selection Committee also approved that the
recommendations, in respect of the second higher
scale, would be considered, only after the outcome
of the said Criminal Appeal. Contention of the
petitioner therein was that having been acquitted,
criminal case cannot be said to be pending merely
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W.P.No.20406 of 2021
because an appeal is directed against the
acquittal order. He also prayed that the
respondents therein be directed to open the sealed
cover and extend the benefit of second higher pay
scale to him. After considering the definition of
the expression "judicial proceeding" "includes any
proceeding in the course of which evidence is
ormay be legally taken on oath." and after
considering the decision made in Sheo Ram v.
State (AIR 1964 Allahabad 290), the Madhya
Pradesh High Court held as follows:
"The preferment of a criminal
revision or an appeal against an
acquittal cannot be regarded as a
continuance of the trial and cannot be
treated to be pendency of judicial
proceeding as the initial presumption of
innocence gets re-enforced by the orders
of acquittal. The contention, therefore,
put forth by the respondents that the
filing of revision against the judgment
dated 12.12.2000 would tantamount to
the pendency of judicial proceeding does
not reason with the provisions as they
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W.P.No.20406 of 2021
stand under law.In the considered
opinion of this Court, after acquittal,
which lead to an affirmation of the
innocence of the accused, an appeal or
revision, as the case may be, being not a
continuation of trial, will not amount to
a pendency of judicial proceedings."
... .. ...
20. While that be the clear finding recorded
in the judgment, acquitting the petitioner, under
the premise of appeal, being filed and pending,
against the order of acquittal, the petitioner
cannot be deprived of the regularisation of the
suspension period, endlessly. Disposal of the
appeal may take a long time. The petitioner is
stated to have retired from service. There is no
certainity that the State would be satisfied, even if
the appeal in the High Court fails. If the State
chooses to prefer a further appeal to the Hon'ble
Supreme Court, the Department may again
contend that the appeal is pending before the Apex
Court. Thus, if the arguments of the respondents 2
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W.P.No.20406 of 2021
and 3 have to be accepted, then there is no finality
to the judgment of acquittal. In the light of the
discussion and decisions considered, the further
contention of the learned counsel that Vigilance
has not given a clearence, cannot be
countenanced.
21. Though by placing reliance on a
decision of the Hon'ble Apex Court in Garikapti
Veeraya v. N.Subbiah Choudhry reported in AIR
1957 SC 540, learned counsel for respondents 2
and 3 contended that appeal is a continuation of
the proceedings and that Vigilance has not given a
clearance to the case of the petitoiner, this Court
is not inclined to accept the same. In the light of
the discussion and decisions, stated supra, merely
because the appeal is pending, it is not open to the
respondents 2 and 3, not to regularise the period
as duty. It has to be regularised.
22. Hence, the Writ Petition is allowed.
Respondents 2 and 3 are directed to to regularise
the period of suspension, from 15.07.2004 to
14.02.2005, as duty, with all consequential
benefits, including promotions, on par with his
immediate juniors, within a period of two months,
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W.P.No.20406 of 2021
from the date of receipt of a copy of this order. No
costs. Consequently, connected Miscellaneous
Petition is also also closed. ''
6.According to the learned counsel, the above ruling of the
Division Bench would clinch the issue in favour of the petitioner. On the
other hand, the learned Standing Counsel appearing for the respondent
strongly opposed the grant of relief to the petitioner. He would reiterate
the stand adopted by the respondent that, in view of the pendency of the
Appeal against the acquittal of the trial Court, the petitioner cannot be
favoured with the final settlement of the retirement benefits. However,
when this Court confronted the learned Standing Counsel about the legal
position as canvassed by the learned counsel for the petitioner, the
learned Standing Counsel would have no plausible answer at all.
7.In view of the categorical ruling of the decision of the Division
Bench of this Court, the rejection of the petitioner's claim herein cannot
be countenanced both in law and on facts. In view of the same, the
rejection order dated 24.08.2021 in No.M/XP/500/Sett/2021 is hereby
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W.P.No.20406 of 2021
set aside and the Writ Petition stands allowed. No Costs.
8.The respondent is directed to settle all the retirement benefits as
payable and admissible to the petitioner and pass appropriate orders in
this regard within a period of four weeks from the date of receipt of a
copy of this order, or on receipt of a web-copy of this order, whichever is
earlier.
9. While passing orders, the respondent shall also take into
consideration, the benefits that are stated to be admissible in the prayer as
well as in the affidavit filed in support of the petition.
20.12.2021
Index : yes/No
Speaking Order: Yes
sli/ms
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W.P.No.20406 of 2021
To
The Senior Divisional Security Commissioner,
Office of the Railway Protection Force,
NGO Building, 5th Floor,
Chennai - 3.
https://www.mhc.tn.gov.in/judis
W.P.No.20406 of 2021
V.PARTHIBAN, J.
sli
W.P.No.20406 of 2021
20.12.2021
https://www.mhc.tn.gov.in/judis
