Telangana High Court
M.Mahipal Reddy vs The State Of Telangana Rep. By Its ... on 25 January, 2024
HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY
WRIT PETITION (TR) No.3639 of 2017
ORDER:
This writ petition has been filed by the petitioner
seeking the following relief:
"... to declare that the petitioner's period of
suspension shall be treated as on duty for all
purposes consequent upon his reinstatement into
service including fixation of pay, increments, arrears
of pay etc., and for Junior Assistants scale w.e.f.
17.12.2001 consequent from petitioner's acquittal in
criminal appeal no.1499 of 2005 by holding the
action of respondents in not treating the period of
suspension and out of employment as not on duty for
all purposes and thereby depriving increments,
arrears of pay etc., as being arbitrary, illegal, unjust,
discriminatory and in violation of Articles, 14 & 16 of
the Constitution of India and to pass.."
2. The brief facts leading to filing of the present petition
are that petitioner was initially appointed as Village
Administrative Officer on 28.09.1995, that he was implicated
in the false ACB trap case on 28.06.2000 and that he was
placed under suspension vide proceedings dated 29.06.2000.
Aggrieved thereby, petitioner filed O.A.No.4649 of 2000 before
the A.P. Administrative Tribunal (APAT) praying to call for
records relating to the impugned proceedings dated
28.06.2000 issued by the Joint Collector, Nizamabad and
quash the same and to grant subsistence allowance. The
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Tribunal vide order dated 27.04.2001, allowed the O.A. on
the ground that subsistence allowance was not paid to the
petitioner. Later, petitioner was reinstated into service vide
proceedings dated 12.10.2001.
2.1. It is contended that on 17.11.2001, options were called
for effecting appointment as Panchayat Secretaries and
accordingly, the petitioner had exercised option. In
connection with the ACB case vide C.C.No.25 of 2001, the
Principal Special Judge for SPE & ACB Cases-cum-IV Addl.
Chief Judge, City Civil Court, Hyderabad, convicted the
petitioner. Aggrieved by the same, petitioner preferred
Criminal Appeal No.1499 of 2005 before this Hon'ble Court.
2.2. Meanwhile, the petitioner was dismissed from service
by the Government vide G.O.Ms.No.617 Revenue (Vigilance-
VIII) Department, dated 05.05.2007. It is contended that this
Hon'ble Court vide judgment dated 12.12.2012 allowed the
Criminal Appeal No.1499 of 2005 by setting aside the
judgment in C.C.No.25 of 2001 and accordingly petitioner
was acquitted. Consequent upon the acquittal in criminal
case, petitioner submitted representation dated 12.12.2012
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requesting for reinstatement into service. The Government
vide Memo No.46920/Vig.VII(2)/2007-6, dated 24.07.2013
issued orders reinstating the petitioner into service.
Consequently, petitioner was posted as Village Revenue
Officer vide orders dated 13.08.2013 by the 3rd respondent.
2.3. It is contended that 3rd respondent issued proceedings
dated 06.02.2014 permitting the Tahsildar to draw
petitioner's salary in the scale of pay for Junior Assistant
w.e.f. date of joining. Petitioner submitted that once the
orders of dismissal dated 05.05.2007 was issued on the basis
of conviction in criminal case, consequent from his acquittal,
it is deemed that petitioner's reinstatement into service dates
back to 05.05.2007 and the period of suspension and period
spent on out of employment has to be treated as on duty for
all purposes including fixation of pay. Hence, the present writ
petition.
2.4. The APAT passed the interim orders dated 29.04.2015,
by which, petitioner was directed to make a representation to
the respondents within a period of two weeks from the date of
receipt of copy of the order and the respondents were directed
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to consider and pass appropriate orders on the
representation of the petitioner within a period of three
months from the date of receipt of representation of the
petitioner.
3. Heard Sri D.Linga Rao, learned counsel for the
petitioner and the learned government Pleader for Services-II
appearing for respondents.
4. Learned counsel for the petitioner submitted that the
delay in reinstatement of the petitioner into service is
attributable to the Department, but not to the petitioner and
that the suspension period from 12.10.2001 to date of
dismissal, i.e. 05.05.2007, and out of employment period
i.e., from the date of dismissal i.e., 05.05.2007 to till the date
of reinstatement, i.e. 24.07.2013 has to be treated as on duty
with all consequential benefits including increments, arrears
of pay etc., in view of acquittal of the petitioner in criminal
case.
5. In support of the contention, learned counsel for
petitioner relied on the following decisions:
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i) Salim Ali Centre for Ornithology & Natural
History, Coimbatore and another vs. Dr. Mathew
K.Sebastian 1;
ii) State of Uttar Pradesh vs. Dayanand
Chakrawarthy and others 2;
iii) Prem Nath Bali vs. Registrar, High Court of Delhi
and another 3;
iv) Shobha Ram Raturi vs. Haryana Vidyut Prasaran
Nigam Limited and others 4;
v) State of U.P. vs. Charan Singh 5;
vi) Decision of this Hon'ble Court in B.Yadagiri vs. The
Government of A.P., vs. and others (W.P.(TR).No.252
of 2017)
6. Per contra, the Government Pleader opposed the
contentions put forth by the counsel for petitioner and would
submit that the petitioner failed to make out any case and
therefore, he is not entitled for reliefs sought in the writ
petition.
Consideration:
7. The undisputed facts which emerge from the pleadings
and contentions of both the parties is that, petitioner was
appointed as Village Administrative Officer on 28.09.1995 and
2022 (6) SCALE
(2013) 7 SCC 595
(2015) 16 SCC 415
(2016) 16 SCC 663
2015 (8) SCC 150
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was placed under suspension on 29.06.2000 on the ground of
alleged trap conducted by ACB on 28.06.2000 and was
reinstated into service on 12.10.2001. Further, petitioner was
dismissed from service vide proceedings dated 05.05.2007 in
view of the conviction in criminal case vide C.C.No.25 of 2001.
The petitioner preferred appeal before this Hon'ble Court and
vide order dated: 12.12.2012 the petitioner was acquitted. The
petitioner submitted representation on 24.12.2012 for re-
instatement and the petitioner was reinstated into service vide
Government Memo dated 24.07.2013.
8. It is relevant to refer to FR 54-B (3) & (4) which govern the
aspect of pay and allowances of suspension period of an
employee and are reproduced for ready reference:
"(3) Where the authority competent to order reinstatement
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 been 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 sixty days from the
date on which communication to this regard is served o 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 allowances as it
may determine).
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(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."
9. From perusal of FR 54-B(3) and (4), it is clear that on
acquittal in criminal case, the suspension period of the charged
employee has to be treated as on duty.
10. In Prem Nath Bali (supra), the Hon'ble Supreme Court in
Paragraph- 20 held that it is a settled principle of law that once
the charges levelled against the delinquent employee are proved
then it is for the appointing authority to decide as to what
punishment should be imposed on the delinquent employee as
per the rules. The appointing authority, keeping in view of the
nature and gravity of the charges, finding of the inquiry officer,
entire service record of the delinquent employee and all relevant
factors relating to the delinquent exercise its discretion and
then impose the punishment as provided in the rules.
10.1. In Paragraph-21, it was observed that one such discretion
is exercised by the appointing authority in inflicting the
punishment then the courts are slow to interfere in the
quantum and only in rare and appropriate case substitutes the
punishment. Such power is exercised when the court finds that
the delinquent employee is able to prove that the punishment
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inflicted on him is wholly unreasonable, arbitrary and
disproportionate to the gravity of the proved charges thereby
shocking the conscience of the court or when it is found to be in
contravention of rules. The court may, in such cases, remit the
case to the appointing authority for imposing any other
punishment as against what was originally awarded to the
delinquent employee by the appointing authority as per the
rules or may substitute the punishment by itself instead of
remitting to the appropriate authority.
11. In Shobha Ram Rathuri (supra), the Hon'ble Supreme
Court in paragraph-3 held that having given our thoughtful
consideration to the controversy, we are satisfied that the
impugned order was set aside, the appellant was entitled to all
consequential benefits. The fault lies with the Respondents in
not having utilized the services of the appellant. Had the
appellant been allowed to continue in service, he would have
readily discharged his duties. Having restrained him from
rendering his services, the Respondent cannot be allowed to
press the self-serving plea of denying him wages for the period
in question, on the plea of the principle of "no work no pay".
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12. In B.Yadagiri (supra), the this Hon'ble High Court in
paragraph-14 held that in the instant, the respondents
dismissed the petitioner from services solely basing on the
conviction of the sentence of imprisonment imposed by the
learned Prl.Special Judge for SPE & ACB Cases, City Civil
Court, Hyderabad and the same was set aside by this Court,
acquitting the Petitioner. His dismissal being solely on account
of conviction, he cannot be denied the benefit of back wages and
other service benefits. Hence, the petitioner is entitled for back-
wages and other benefits.
13. In Raj Narain vs. Union of India and others 6 , the
Hon'ble Apex Court at paragraph-6 held as under:
"6. The decision of Ranchhodji Chaturji Thakore [Ranchhodji
Chaturji Thakore v. Gujarat Electricity Board, (1996) 11 SCC 603
: 1997 SCC (L&S) 491] was followed by this Court in Union of
India v. Jaipal Singh [Union of India v. Jaipal Singh, (2004) 1 SCC
121 : 2004 SCC (L&S) 12] to refuse back wages to an employee
who was initially convicted for an offence under Section 302 read
with Section 34 IPC and later acquitted by the High Court in a
criminal appeal. While refusing to grant relief to the petitioner
therein, this Court held that subsequent acquittal would not
entitle an employee to seek back wages. However, this Court was
of the opinion that if the prosecution is launched at the behest of
the department and the employee is acquitted, different
considerations may arise. The learned counsel for the appellant
endeavoured to distinguish the prosecution launched by the
police for involvement of an employee in a criminal case and the
criminal proceedings initiated at the behest of the employer. The
observation made in the judgment in Union of India v. Jaipal
Singh [Union of India v. Jaipal Singh, (2004) 1 SCC 121 : 2004
SCC (L&S) 12] has to be understood in a manner in which the
department would become liable for back wages in the event of a
(2019) 5 SCC 809
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finding that the initiation of the criminal proceedings was mala
fide or with vexatious intent. In all other cases, we do not see
any difference between initiation of the criminal proceedings by
the department vis-à-vis a criminal case lodged by the police.
For example, if an employee is involved in embezzlement of
funds or is found indulging in demand and acceptance of illegal
gratification, the employer cannot be mulcted with full back
wages on the acquittal of the person by a criminal court, unless
it is found that the prosecution is malicious."
13.1. In the above referred case, the appellant was placed under
suspension on 23.10.1979 in contemplation of disciplinary
proceedings on the allegation of petitioner's involvement in
forged payments of high value money orders. An FIR was lodged
against the petitioner and he was convicted and sentenced to
imprisonment for three years, however, on appeal, the petitioner
was acquitted from the charges.
14. From the above decision, it is clear that on acquittal, an
employee is not entitled to back wages as a matter of right.
However, there are two exceptions to the above, one being the
prosecution launched at the behest of the department and
secondly, if it is found that the prosecution is malicious. The
Hon'ble Apex Court held that appellant is entitled for back-
wages only from the date of acquittal till the date of his
reinstatement and the full wages for the suspension period i.e.,
from 23.10.1979 to 21.10.1987 on the ground that appellant
was acquitted from criminal case registered against him and
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disciplinary proceedings initiated against him was dropped by
the department on 21.03.1983.
15. The other decisions relied upon by the learned counsel for
petitioners are not relevant to the facts of the present case and
therefore, they do not come to the aid of the petitioner.
16. In the present case, petitioner was suspended on
29.06.2000 in view of trap conducted by the ACB on 28.06.2000
and suspension was revoked on 12.10.2001. The petitioner
stood dismissed from service on 05.05.2007, in view of
conviction in criminal case vide C.C.No.25 of 2001. The
petitioner was acquitted from criminal case by this Court only
vide judgment dated 12.12.2012. The petitioner submitted
representation for reinstatement on 24.12.2012 and was
reinstated into service vide Government Memo dated
24.07.2013. Thus, there is delay of about seven months in
reinstatement of petitioner into service by the respondents from
the date of submission of representation.
17. In the light of above discussion, in considered opinion of
this Court, petitioner is entitled to arrears of pay, increments
and consequential benefits for the suspension period i.e., from
12.10.2001 to 04.05.2007 and 24.12.2012 to till the date of
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reinstatement i.e., 24.07.2013. With regard to the period of
dismissal from service i.e., from 05.05.2007 to 23.12.2012,
petitioner is entitled to notional benefits and continuity of
service. However, with regard to back-wages, the respondents
shall take a decision within a period of six weeks and
communicate the same to the petitioner.
18. Accordingly, the Writ Petition is disposed of. There shall
be no order as to costs.
Pending Miscellaneous Applications, if any, shall stand
closed.
__________________________________
LAXMI NARAYANA ALISHETTY,J
Date: 25.01.2024
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HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY
WRIT PETITION (TR) No.3639 of 2017
Date:25.01.2024
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