Madras High Court
The Deputy Secretary To Govt vs R.Sivaraj … on 8 August, 2024
Writ Appeal No.1524 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 18.06.2024
PRONOUNCED ON : 08.08.2024
CORAM
THE HONOURABLE MR. ACTING CHIEF JUSTICE D.KRISH-
NAKUMAR
AND
THE HONOURABLE MR. JUSTICE K.KUMARESH BABU
Writ Appeal No.1524 of 2022 &
CMP.No.10000 of 2022
1.The Deputy Secretary to Govt.,
Public (Establishment-2) Department,
Fort St., George, Chennai – 600 009.
2.The Under Secretary to Government
Public (Establishment-2) Department,
Fort St., George, Chennai – 600 009. ... Appellants
Vs
R.Sivaraj … Respondent
PRAYER: Writ Appeal has been filed under Clause 15 of Letter Patent
against the order dated 27.01.2022 made in W.P.No.2449 of 2017.
For Appellant : Mr.V.Manoharan AGP
Page No.1/16
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Writ Appeal No.1524 of 2022
For Respondents : Mr.S.Sivakumar
JUDGMENT
(Judgment of the Court was made by Mr.K.KUMARESH BABU., J)
This instant Intra-Court Appeal had been filed as being aggrieved
against the order of the learned Single Judge wherein the learned Single
Judge had issued directions to pass orders by treating the respondent's
suspension period from 08.02.2013 to 01.07.2014 as duty period for all
purposes together with all service and monetary benefits.
2.Heard Mr.V.Manoharan, learned Additional Government
Pleader appearing for the appellants and Mr.S.Sivakumar learned counsel
appearing for the respondent.
3. Mr.V.Manoharan, learned Additional Government Pleader ap-
pearing for the appellants would contend that the respondent herein was ar-
rested on 18.02.2013, in a criminal case registered on 24.09.2012. Hence
by invocation of the provisions of the Fundamental Rules, he was placed
under suspension by proceedings dated 20.02.2013. During the criminal
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investigation, the complainant and the accused in the criminal case had
compromised between themselves and the same was also recorded by this
Court in Crl.O.P.No.445 of 2015 and the complaints were quashed. Based
upon the said order, the suspension was revoked. However, a departmental
action was initiated against the respondent under Rule 17(a) of the Tamil
Nadu Civil Services (Discipline & Appeal) Rules for having contravened the
provisions of the Tamil Nadu Government Servant Conduct Rules. Pursuant
to the said enquiry, he was also been imposed with a punishment of
withholding of increment for a period of two years without cumulative effect
by proceedings, dated 17.07.2015. Against the said punishment, the
respondent did not prefer any appeal and the said punishment had become
final. Thereafter by proceedings dated 27.06.2016, orders were issued
regulating the period of suspension by holding it to be a period not spent on
duty and he was denied the pay and allowances. Being aggrieved against
the same, he had preferred the Writ Petition which was also stoutly opposed
by the appellants by contending that as per FR 54(5), it is the Government
which has to decide how the period of suspension is to be regulated. Rule
54B(1), the excess period after adjusted against the leave salary was also
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sought to be waived. However, the learned Single Judge without
appreciating the facts of the case, had applied FR 54B(9) to hold that the
respondent would be entitled for treating the period as period on duty and
would be entitled for monetary and other attendant service benefits.
4. He would contend that FR 54B(9) would only be applicable in a
case, when the Government employee had been acquitted from a criminal
case on the grounds stated therein. He would further contend that in the
present case for the very same act, the respondent had also been proceeded
departmentally and has also been found to have been guilty of misconduct
and had been imposed a punishment. The respondent had also accepted the
punishment and had not preferred any appeal against the said order and
therefore, the same had become final. Therefore, the application of Rule
54B(9) cannot be available to the respondent, as his misconduct had been
proved in the departmental action and therefore, FR 54(5) alone would be
applicable to determine whether he would be entitled for treating his period
of suspension as being spent on duty. Only if an order under FR 54(5) is
made treating the period of suspension as period spent on duty, only then he
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would be entitled to monetary benefits. He would further contend that strict
application of Rule 54(5) would show that even if the suspension is treated
as period spent on duty, he would not be entitled for the entire monetary
benefit in view that he had been imposed with the punishment for the very
same act in the departmental proceedings. Therefore, he would seek
interference of this Court with the order of the learned Single Judge.
5. Countering his arguments, Mr.S.Sivakumar, learned counsel
appearing for the respondent would submit that in the present case the order
of suspension had been made pursuant to the criminal case that had been
lodged against the respondent. The said criminal case had been quashed by
the Hon'ble Court by taking into consideration that the parties to the dispute
had settled between themselves. Only thereafter he had been reinstated into
the service by revoking the order of suspension. After the order of
suspension was revoked in the year 2015, a charge memo was served upon
the respondent for the alleged delinquencies and after enquiry, a punishment
was imposed to withhold the increment for a period of two years without
cumulative effect. Hence, the disciplinary proceedings cannot be put against
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the respondent for the denying the pay and other allowances during the
period of suspension. He would vehemently contend that FR 54B(9) would
only be applicable to the facts of the present case. He would contend that if
a suspension had been made only on the ground of pendency of criminal
case and that if the criminal case had ended in an acquittal on the ground
stated in the Fundamental Rule, then the period of suspension should be
treated as duty entitling the employee to receive full pay and pension.
However, under the order that had been set aside by the learned Single
Judge, the appellants had treated the period of duty as leave and had denied
the respondent the pay and allowances, which he had been otherwise en-
titled to and therefore, he would submit that there is no error or infirmity in
the order passed by the learned Single Judge, which warrants interfer-
ence by this Court.
6. We have considered the rival submissions made by the learned
counsels appearing on either side and perused the materials placed on
record.
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7. The issue that is to be decided in this Writ Appeal is as to whether a
Government employee, who had been placed under suspension pending
criminal charges would be entitled to seek the said period of suspen-
sion to be treated as period of duty, which entitles him to full pay and allow-
ances. To decide the issue, it is pertinent to analyse the Fundamental Rules
that is applicable to a Government servant in that aspect. FR 54 deals with
such a situation. For better appreciation, the relevant FR in that aspect are
extracted hereunder:-
FR 54-B-1(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 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 connec-
tion 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.
F.R. 54-B. (1) When a Government servant who
has been suspended is reinstated or would have been so
reinstated but for his retirement (including premature
retirement) while under suspension, the authority
competent to order reinstatement shall consider and
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make a specific order- (a) regarding the pay and al-
lowances to be paid to the Government servant for the
period of suspension ending with reinstatement or
the date of his retirement (including premature retire-
ment), 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 the Court proceedings institut-
ed 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 reinstatement is of the opinion that the sus-
pension 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 been suspended.
54B(9)(3)(1):-
The cases of suspension during pendency of crim-
inal proceedings or proceeding for arrest for debt or
during detention under a law providing for preventive
detention, shall be dealt with in the following manner
hereafter:-
(a) A Government servant who is detained in cus-
tody under any law providing for preventive detention
or as a result of a proceeding either in a criminal
charge or for his arrest for debt shall, if the period of
detention exceeds 48 hours and unless he is already
under suspension, be deemed to be under suspen-
sion, from the date of detention until further orders as
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contemplated in the Tamil Nadu Civil Services (Discip-
line and Appeal) Rules. A Government servant who is
undergoing a sentence of imprisonment shall also
be dealt with in the same manner pending a decision on
the disciplinary action to be taken against him;
(b) A Government servant against whom a
proceeding has been taken on a criminal charge but who
is not actually detained in custody (e.g., a person re-
leased on bail) may be placed under suspension by an
order of the competent authority under the Tamil Nadu
Civil Services (Discipline and Appeal) Rules. If the
charge is connected with the official position of the Gov-
ernment servant or involving any moral turpitude on his
part, suspension shall be ordered under this rule
unless there are exceptional reasons for not adopting
this course;
c) A Government servant against whom a pro-
ceeding has been taken for his arrest for debt but who is
not actually detained in custody may be placed under
suspension by an order under the Tamil Nadu Civil
Services (Discipline and Appeal) Rules, i.e., only if a
disciplinary proceeding against him is contemplated.
d) When a Government servant who is deemed to
be under suspension in the circumstances mentioned in
clause (a) or who is suspended in the circumstances
mentioned in clause (b) is reinstated without taking
disciplinary proceedings against him, his pay and
allowance for the period of suspension will be regulated
under rule 54/54-B, i.e., in the event of his being
acquitted of blame or if the proceeding taken against
him was for his arrest for debt or its being proved that
his liability arose from circumstance beyond his con-
trol or the detention being held by any competent au-
thority to be wholly unjustified, the case may be dealt
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with under Rule 54(2)/54-B(3); otherwise it may be dealt
with under rule 54(4)/54-B(5).
FR Rulings clause (9):-
Where a Government servant is:-
(a)Placed under suspension in view of the fact that a
complaint against him of any criminal offence is under
investigation or trial; or
(b) dismissed or removed from service or compulsorily
retired on the ground of conduct which has led to his
conviction on a criminal charge and the Government
servant is subsequently reinstated in service on his
acquittal by the Court either on merits or on the ground
that the charge had not been proved against him or by
giving benefit of doubt or on any other technical
ground, or on the ground that he has been pardoned by
the Court as he turned approver based on his judicial
confession.
8. A reading of the aforesaid Fundamental Rules would indicate that
in cases that do not fall under FR 54 namely when a Government ser-
vant under suspension dies before the disciplinary proceedings or the Court
proceedings instituted against him are concluded and when the author-
ity reinstates him by considering was wholly unjustifiable, then he would be
entitled for full pay and allowances. The cases that do not fall under sub
Rules (2) and (3) are dealt with under FR 54-B-1(5). Under the said Rule, a
Government servant had been held to be paid such amount (not being the
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whole) of pay and allowances to which he would have been entitled, had
he not been suspended, as the competent authority may determined,
after notice to him. FR 54-B-3(1)(d) provides that when a Government
servant, who had been suspended and is reinstated without taking any
disciplinary proceedings against him, then his pay and allowances for a peri-
od of suspension would have to be regulated under Rule 54(4)/54-B-
(5). FR 54-B(9) postulates the situation that when a Government servant is
placed under suspension in view of any criminal offence either under invest-
igation or trial and that he is being acquitted, then the said period of
suspension shall be treated as duty for all purposes and he would be entitled
to be paid full pay and allowances, which he would have been entitled to, if
he had not been suspended.
9.We have thoroughly gone through Rule 54, but there has been no
Rule that has been made which would fit to the facts of the case, i.e., if a
Government servant had been suspended for a criminal offence being under
either investigation or trial or had been taken into custody for a particular
offences is also proceeded departmentally, and acquitted in a criminal case
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and had been imposed with a punishment in the disciplinary case. In such
view of the matter, we are called upon to answer as to how to deal with such
a situation. Even though the claim of the respondent is that since suspension
had been made only pursuant to a criminal offence and in that offence, he
had been acquitted, then he is entitled for full pay and allowances. He may
be correct in such statement had not a disciplinary proceedings been initi-
ated against him on the same set of charges and had been found not guilty of
the said delinquency. In the present case, he had been proceeded depart-
mentally and had also been inflicted with a punishment for the delinquency
which arose out of the criminal offence. He had also not filed any appeal
against the same and has accepted the order of punishment, which would
only indicate that he had committed the criminal offence. Had not a
private settlement been arrived at between the complainant and the ac-
cused, which led to the criminal case, the appellant would have been pro-
ceeded with definitely for the criminal charge. In such circumstance,
we are of the considered view that FR 54(9) cannot be made strictly ap-
plicable to the case of the respondent.
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10.Rule 54B-3-1(d) indicates that even in a case where
disciplinary proceedings had not been initiated, then the period of
suspension and pay and allowances would have to be determined under
54(4) or 54-B(5). Rule 54(4) and 54-B(5) empowers the Competent
Authority to determine as to what would be the pay and allowances for
which a Government servant would be entitled to. As indicated above, such
a procedure is envisaged, when there was no disciplinary proceedings
initiated against the said Government servant. But in the present case, the
respondent had been imposed with the punishment for the delinquency
which was also the criminal charge against him. Since, there are no specific
Rules, we deem it fit that in such a situation either Rule 54(4) or Rule 54(5)
would have to be only followed by the Competent Authority.
11. Hence, in view of the aforesaid conclusion, we hold that the
authority has rightly exercised his power in deciding the manner in which
the period of suspension ought to be held and the consequential decision on
the pay and allowances.
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12.However, a perusal of the order impugned before us would show
that in passing such an order the manner prescribed under 54-B(5) had not
been followed. FR 54-B(5) empowers the Competent Authority to de-
termine the pay and allowances only after giving notice to the Gov-
ernment servant concerned regarding the quantum proposed and after
considering the representation, if any, submitted by him only, then an order
could be passed under Rule 54-B(5). But in the present case, we do not find
any such notice that had been sent to the respondent for determining the pay
and allowances as indicated under Rule 54-B(5). Rule 54(4) is also a pari
materia to Rule 54-B(5) and hence on that aspect, the impugned order
suffers from a vice of principle of natural justice and hence, for the aforesaid
reasons, we are inclined to interfere with the impugned order in the Writ
Petition.
13.Since, we have come to a conclusion that the impugned order in the
Writ Petition is bad in law, even though we do not subscribe to the order
made by the learned Single Judge impugned before us, we propose to set
aside the order passed by the learned Single Judge. However, we having
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found that the order had not been made in consonance with Rule 54-B(5),
which had been invoked by the appellant, we set aside the order made by the
first appellant in G.O.(1D).No.250, dated 27.06.2016 and remit the matter
back to the first respondent for fresh consideration after following the
procedure contemplated under Rule 54-B(5). Such an exercise shall be
completed by the appellants within a period of eight weeks from the date of
receipt of a copy of this order.
14.With the above directions, the Writ Appeal is disposed of.
However, there shall be no order as to costs. Consequently, connected
Miscellaneous Petition is closed.
(D.K.K.,A.C.J.,) (K.B., J.)
08.08.2024
Index: Yes/No
Speaking Order/Non Speaking Order
Neutral Citation:Yes/No
pbn
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D.KRISHNAKUMAR.,ACJ.,
and
K.KUMARESH BABU.,J.
pbn
Writ Appeal No.1524 of 2022 &
08.08.2024
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