Rama Kishan Soni vs State Of Rajasthan ...
2023 Latest Caselaw 1000 Raj

[2023/RJJD/002388]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 13635/2019

Rama Kishan Soni S/o Shri Ram Bagas Soni, Aged About 66 Years, R/o A-181, Kamla Nehru Nagar, Ii Extension, Chopasni Road, Jodhpur (Rajasthan).

----Petitioner Versus

1. State Of Rajasthan, Through Principal Secretary, Department Of Personnel Department, Government Secretariat, Jaipur.

2. Joint Secretary, Department Of Personnel (Group K-3/complaint) Department, Government Secretariat, Jaipur.

3.          Director,      Department          Of     Pension,          Government     Of
            Rajasthan, Jaipur (Raj.)
                                                                         ----Respondents


For Petitioner                  :     Mr. Sanjay Kapoor
For Respondents                 :     Mrs. Abhilasha Bora, AGC with
                                      Ms. Khushbu Choudhary



       HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI

                                           Order

25/01/2023

1. This writ petition has been preferred claiming the following

reliefs:-

"It is, therefore, most respectfully prayed on behalf of petitioner that the writ petition may kindly be allowed and :- I. by an appropriate writ, order or direction, the impugned order dated 22.11.2017 (Annex.10) passed by Respondent No.2 be quashed and set aside and further the respondent be directed to grant the petitioner all benefits including salary benefits for the period of suspension and also grant interest on delayed payment of gratuity and revise the pay and arrears of the petitioner by granting correct fixation of pay on competition of 27 years of service.

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II. Any other appropriate order or direction, which this Hon'ble Court considers just and proper in the facts and circumstances of this case, may kindly be passed in favour of the petitioner. III. Cost of the writ petition may kindly be awarded to the petitioner."

2. The bone of contention in the present petition is that

although the petitioner has been acquitted of the corruption

charges against him by a competent Court, would the fact that the

acquittal was granted to him, while extending him the benefit of

doubt, dis-entitle him from claiming the prayers, as made in the

present petition.

3. Brief facts of the case as placed before this Court by learned

counsel for the petitioner, are that the petitioner was appointed as

Nayab Tehsildar in the Rajasthan Tehsil Services on 21.02.1980

and joined the service on 05.03.1980; he was promoted from time

to time and vide order dated 14.05.2004, he was promoted to

R.A.S.

3.1 That prior to his appointment to the R.A.S., a complaint of

corruption was filed against him; thereafter a departmental

enquiry was conducted against him and a charge-sheet under the

Rajasthan Civil Services (Classification, Control and Appeal) Rules,

1958 was issued to him on 15.09.1991; and upon conclusion of

the said enquiry, he was exonerated of all the charges levelled

against him therein, vide order dated 27.04.2002 (at Annex.-2).

3.2 That a criminal complaint was also came to be registered

against the petitioner at the same time, and a prosecution

sanction was issued against the petitioner; in pursuance of the

same, he was placed on suspension vide order dated 20.10.2004

(at Annex.-3).

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3.3 That aggrieved by the same, the petitioner preferred a writ

petition, being S.B. Civil Writ Petition No. 8261/2004 before this

Hon'ble Court, at Jaipur Bench; which came to be allowed vide

order dated 25.02.2010 (at Annex.-4) and the petitioner was

accordingly reinstated in service vide order dated 29.04.2010.

3.4 Thereafter, the petitioner, upon attaining the age of

superannuation, retired from service on 06.12.2012; however he

was only paid a provisional pension; against which he preferred a

writ petition, being S.B. Civil Writ Petition No 9269/2014 before

this Hon'ble Court, which was dismissed vide order dated

03.12.2015 (at Annex.-7) while granting the petitioner liberty to

claim all his pending retirement benefits after the completion of

the trial in the criminal case against him, in the event of his

acquittal.

3.5 That vide judgment dated 23.09.2017 (at Annex.-8), passed

by the Special Judge No. 2, Sessions Court, Prevention of

Corruption Act Cases, Jaipur in Criminal Regular Case No. 59/2016

(25/05) the petitioner was acquitted of all the charges levelled

against him therein, while extending him the benefit of doubt;

upon which the petitioner apprised the respondents of the same

vide letter dated 04.10.2017.

4. Learned counsel for the petitioner submits that although the

petitioner was accorded an acquittal in the aforementioned

criminal case by a competent Court, the respondents while holding

that he was not found to be innocent beyond doubt but was given

the benefit of doubt, and that therefore, the suspension order

dated 20.10.2004 was not bad, and would therefore be only liable

to receive sustenance allowance for the period of his suspension,

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being 20.10.2004 to 30.04.2010. And that he was also paid his

gratuity, to the tune of Rs.9,01,693/- but no interest on such

delayed payment was given to him.

5. Learned counsel for the petitioner further submits that

despite making multiple representations before the respondents

for the same, he was only informed that because a decision was

taken vide order dated 22.11.2017, no other benefit/s could be

granted to him for the period of his suspension.

6. Learned counsel for the petitioner drew the attention of this

Court towards Rule 54 of the Rajasthan Service Rules, 1951 and

submitted that the impugned order as relied upon by the

respondents in denying him his benefits during the period of his

suspension, was not tenable in law, as it was a non speaking

order.

For the sake of brevity, the said Rule is reproduced hereunder:-

"Rule 54. Re-Instatement.- (1) When a Government servant who has been dismissed, removed, compulsory retired or suspended is re-instated or would have been re-instated but for his retirement on superannuation while under suspension, the authority competent to order the re-instatement shall consider and make a specific order:-

(a) regarding the pay and allowances to be paid to the Government servant for the period of his absence from duty or for the period of his absence from duty or for the period of suspension ending with 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) Where such competent authority holds that the Government servant has been fully exonerated or, in the case of suspension that it was wholly unjustified, the Government servant shall be given the full pay and dearness allowance to which he would have been entitled had he not been dismissed,

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removed or compulsorily retired as a penalty or suspended, as the case may be.

(3) In other cases, the Government servant shall be given such proportion of such pay and dearness allowance as such competent authority may prescribe.

(4) In a case falling under clause (2) the period of absence from duty shall be treated as a period spent on duty for all purposes.

(5) In a case falling under clause (3) the period of absence from duty shall not be treated as a period on duty unless such authority specifically directs that it shall be so treated for any specified purpose.

[Provided that if the Government so desires, such authority may direct that the period of absence from duty shall be converted into leave of any kind due and admissible to the Government servant.] [Note: The order of the competent authority regarding the treatment of the period of absence from duty passed under this proviso is absolute and no higher sanction would be necessary for the grant of extra-ordinary leave in excess of three months in so far as temporary Government servant are concerned.] (6) In cases where punishment order does not indicate as to whether the suspension period is to be counted for the purpose of pension or not, the period of suspension shall be counted for the purpose of pension. In all other cases, action shall be taken as per punishment order.

(7) Any payment made under this rule to a Government servant on his reinstatement shall be subject o adjustment of the amount, if any, earned by him through an employment, business, profession or vocation during the period between the date of removal, dismissal or compulsory retirement, as the case may be, and the date of reinstatement. Where the emoluments admissible under this rule are equal to or less than the amounts earned during the employment, business, profession or vocation elsewhere, nothing shall be paid to the Government servant."

7. Learned counsel for the petitioner also submits that the

petitioner is a senior citizen, aged over about 70 years (by now)

and that despite being exonerated from all the charges levelled

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against him in the departmental inquiry, and was also acquitted

from all the charges levelled against him in the aforementioned

criminal case, though while extending the benefit of doubt, he has

had to run from pillar to post for securing his pensionary benefits

for the period on count of his wrongful suspension.

7. On the other hand, Mrs. Abhilasha Bora, AGC with

Ms.Khushbu Choudhary, learned counsel for the respondents

oppose the submissions made on behalf of the petitioner and

submit that the petitioner was not afforded an honorable acquittal,

as he was granted the benefit of doubt and thereby acquitted by

the concerned Court, and therefore the impugned order dated

22.11.2017, as assailed before this Court is valid and sustainable.

8. Learned counsel placed reliance in this regard upon the

judgments rendered by the Hon'ble Apex Court in the cases of

Krishnakant Raghunath Bibhavnekar v. State of

Maharashtra and Ors. (Civil Appeal No. 1868/2017) decided

on 28.02.1997 and C.R. Radhakrishnan v. State of Kerala and

Ors. (Civil Appeal Nos. 4511-4512/2017) decided on

27.03.2017.

For the sake of brevity, relevant portions of the same as relied

upon by the learned counsel are reproduced as hereunder:-

In Krishnakant Raghunath Bibhavnekar (supra):-

"In our considered view, this grant of consequential benefits with all back wages etc. cannot be as a matter of course. We think that it would deleterious to the maintenance of the discipline if a person suspended on valid considerations is given full back wages as a matter of course, on his acuittal, Two courses are open to the disciplinary authority, viz., it may enquire into misconduct unless, the self-same conduct was subject of charge and on trial the acquittal was recorded on a

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positive finding that the accused did not commit the offence at all; but acquittal is not on benefit of doubt given. Appropriate action may be taken thereon. Even otherwise, the authority may, on reinstatement after following the principle of natural justice, pass appropriate order including treating suspension period as period of not on duty, (and on payment of subsistence allowance etc.) Rules 72(3), 72 (5) and 72 (7) of the Rules give a discretion to the disciplinary authority. Rule 72 also applies, as the action was taken after the acquittal by which date rule was in force. Therefore, when the suspension period was treated to be a suspension pending the trial and even after acquittal, he was reinstated into service he would not be entitled to the consequential, he was reinstated into service, he would not be entitled to the consequential benefits, As a consequence, he would not be entitled to the benefits of nine increments as stated in para 6 of the additional affidavit. He is also not entitled to be treated as on duty from the date of suspension till the date of the acquittal for purpose of computation of pensionary benefits etc. The appellant is also not entitled to any other consequential benefits as enumerated in paragraphs 5 and 6 of the additional affidavit"

In C.R. Radhakrishnan v. State of Kerala and Ors. (supra):-

"4. This is not a case where the appellant has been fully exonerated, meaning thereby an honourable acquittal. Learned counsel for the appellant submits that going by the judgment, the finding arrived at by the High Court in the criminal appeal regarding benefit of doubt is not correct. We are afraid, under the present proceedings, we cannot appreciate the above submission. The correctness or otherwise of the judgment in the Criminal Appeal is not the subject matter of this case. In these proceedings we can only look at the findings in the judgment. The acquittal is only on benefit of doubt. Thus, we find no merits in these appeals and the same are, accordingly, dismissed."

9. Learned counsel for the respondents also submits that under

Rule 54 sub-rule (3), the concerned authority has the discretion to

pass appropriate orders. And that therefore, the impugned order

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cannot be assailed by the petitioner through the present petition,

as the discretion has rightly been exercised by the concerned

authority after taking into due consideration the fact that the

petitioner was not afforded an honorable acquittal, but was

acquitted after being granted the benefit of doubt.

10. Heard learned counsel for both parties and perused the

record of the case as well as the judgments cited at the Bar.

11. At the outset, this Court finds that the petitioner was

exonerated of all charges levelled against him in the charge-sheet

so filed against him under the Rules of 1951, and then was also

acquitted by a Court of competent jurisdiction in the Criminal

Regular Case registered against him, being Criminal Regular Case

Nio. 59/2016 (25/05), vide judgment dated 23.09.2017.

Therefore, the respondent-Department had applied its mind and

found that the petitioner was not guilty of the charges so levelled

against him by way of a departmental inquiry.

12. Upon being asked by this Court about the same, learned

counsel for the respondents submits that even though the

petitioner was exonerated of all the charges levelled against him

in the departmental inquiry, the order of suspension was passed

as a result of the criminal case registered against him, and that

both ran parallel to each other, and therefore have to be seen

independent to each other. And that, the acquittal in the criminal

case not being an honorable acquittal, the respondent-Department

was well within its right to pass the impugned order.

13. This Court is unable to find force in the said submission,

since even though the respondent-Department, within its

prerogative, may exercise discretion as under the law contained in

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Rule 54 sub-rule (3) of the Rules, the exercise of such discretion

cannot be done in an arbitrary manner, and any order(s) so

passed by it must be well-reasoned and speaking order(s).

14. This Court, on a perusal of the impugned order dated

22.11.2017 passed by the respondent-Department, finds that the

same is passed in a very mechanical manner and no reason has

been given to invoke the discretion given in Rule 54 Sub Rule (3)

of the Rules of 1951. Had there been no departmental inquiry

against the petitioner, the case would have stood on an altogether

different footing. It is this very fact, that distinguished the present

case from the cases of Krishnakant Raghunath Bibhavnekar

(supra) and C.R. Radhakrishnan v. State of Kerala and Ors.

(supra); those cited on behalf of the respondents.

15. Upon being further queried, the learned counsel for the

respondents fairly acquiesced and prayed that the matter may be

remanded back to the respondent-Department with a direction

that it may pass speaking and well reasoned orders, taking into

due consideration the fact that the petitioner was exonerated by

way of a department inquiry conducted by the respondent-

Department.

16. However, this Court looking into the peculiar factual matrix

of the case, including that the petitioner is a senior citizen who

was superannuated in the year 2012, and preferred the present

petition back in the year 2019, deems it appropriate to allow the

present petition.

17. Thus, as an upshot of the above discussion, including the

peculiar factual matrix of the case, as above, the present petition

is allowed.

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18. Resultantly, the impugned order dated 22.11.2017

(Annex.10) is quashed and set aside, and respondents are hereby

directed to grant the petitioner all the benefits, including salary

benefits for the period of suspension, being 20.10.2004 till

30.04.2010, and also grant him the annual interest (as applicable

for the National Banks) on the delayed payment of gratuity, and

revise the pay and arrears of the petitioner by granting correct

fixation of pay on competition of 27 years of service, within a

period of three months from today. No order as to costs. All

pending applications stand disposed of.

(DR.PUSHPENDRA SINGH BHATI), J.

229-Skant/-

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