Telangana High Court

Sangi Linga Raju vs The Transport Commissioner on 30 September, 2024

     THE HONOURABLE SMT JUSTICE T.MADHAVI DEVI

                    W.P(TR).No. 3601 of 2017

ORDER:

In this writ petition, the petitioner is challenging the

proceedings R.No.5154/V3/V2/2005, dated 23.12.2014

rejecting the case of the petitioner for regularization of

suspension period from 21.05.2005 to 22.11.2007 as on duty,

as illegal, arbitrary and contrary to F.R.54(8) and to set aside

the same with all consequential benefits including promotion to

the post of Administrative Officer with effect from 01.06.2007

i.e., from the date of promotion of his immediate junior with all

consequential benefits and to pass such other order or orders in

the interest of justice.

2. Brief facts leading to the filing of the present writ

petition are that the petitioner was appointed as a Typist on

01.07.1989 and later he was promoted as Senior Assistant on

01.11.1996. While the petitioner was working as Senior

Assistant in the office of Deputy Transport Commissioner,

Adilabad, he was placed under suspension on 24.05.2005 on

the ground that ACB case was registered against him along an

unofficial person. Subsequently, he was reinstated into service

on 21.11.2007. The petitioner was acquitted from the ACB case

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registered in C.C.No.47/2010 on the file of II Additional Special

Judge for SPE and ACB Cases, City Civil Court, Hyderabad, vide

its judgment dated 13.03.2013 and against the said acquittal,

State preferred a Criminal Appeal No.850 of 2013 before this

Court and it was admitted on 22.07.2013. The petitioner

submitted representations to the respondents to regularize the

suspension period 'as on duty' since he has been acquitted in

the criminal case. The petitioner sought relief under F.R.54(B).

When there was no reply from the respondents, he filed

O.A.No.6594/2014 before the Andhra Pradesh Administrative

Tribunal and vide orders dated 26.11.2014, the Tribunal

directed the respondent No.1 to dispose of the representation of

the petitioner dated 03.07.2014 seeking regularization of the

suspension period i.e., from 21.05.2005 to 22.11.2007 as on

duty within a period of four weeks from the date of receipt of a

copy of the order. It is submitted that consequent to the

directions of the Tribunal, the representation of the petitioner

was considered, but rejected vide proceedings dated 23.12.2014

on the ground that the Criminal Appeal filed by the State is

pending before the Hon'ble High Court. Challenging the same,

the present writ petition has been filed.

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3. Learned counsel for the petitioner while reiterating

the above submissions and the contentions raised in the O.A.,

has submitted that F.R.54(B) provides as to how when the

suspension period is to be treated as on duty when an employee

is acquitted in a criminal case. It is submitted that respondent

No.1 passed the impugned order without indicating as to how

the rule under F.R.54(B) is not applicable to the case on hand.

It is submitted that the criminal appeal against the acquittal

order is not bar for regularizing the suspension period 'as on

duty' as the criminal appeal cannot be considered as

continuation of the criminal case against the petitioner. It is

further submitted that one of the junior to the petitioner has

been promoted as Administrative Officer on 01.06.2007 and

therefore, after regularization of the suspension period, he

should be considered for promotion as Administrative Officer on

par with his junior.

4. Learned counsel for the petitioner in support of his

contentions, has placed reliance upon the decision of the

Hon'ble Supreme Court in the case of C.O.Armugam and

Others Vs. State of Tamil Nadu and Other 1. She further

placed reliance upon the decisions of the Division Bench of this

1 1990 (1) SLR 298 SC

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Court in W.P.No.1025 of 2011 and W.P.Nos.27607, 27614 and

22929 of 2009, dated 28.01.2010.

5. Learned Government Pleader, however, relied upon

the averments made in the counter affidavit and submitted that

the petitioner was arrested by the ACB authorities in a trap case

and therefore, he was placed under suspension as per Sub rule

2(a) of Rule 8 of APSC (CCA) of 1991 as he was detained in

police/judicial custody for more than forty eight hours. It is

submitted that petitioner was reinstated into service on

21.11.2007 on instructions of the Government vide Memo dated

20.11.2007. It is submitted that even if the petitioner has been

acquitted in the criminal case, the ACB authorities have filed an

appeal before the High Court and therefore, the suspension

period cannot be regularized at this stage under F.R.54(B).

6. In support of his contentions, learned government

pleader has placed reliance upon the judgment of the Hon'ble

Supreme Court in the case of Greater Hyderabad Municipal

Corporation Vs. M.Prabhakar Rao 2. As regards the orders of

the Division Bench of this Court relied upon by the learned

counsel for the petitioner, the learned government pleader

2 (2011) 8 SCC 155

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submitted that they were with regard to the payment of pension

and gratuity after acquittal in the criminal cases, whereas in the

present case, the petitioner is seeking regularization of the

suspension period. He therefore, prayed for dismissal of the writ

petition.

7. Having regard to the rival contentions and the

material on record, this Court finds that the only issue in this

case is whether on acquittal in the criminal case, the

suspension period of the petitioner can be regularized as on

duty. The F.R.54 deals with such situations. For the sake of

ready reference and clarity, relevant provision is reproduced

here under:

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 (xxxxxxx) while under suspension, the authority competent to order reinstatement shall consider and make a specific order-

(a) regarding the pay and allowances to be paid to the Government servant for the period of suspension ending with reinstatement or 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.

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(2) Notwithstanding anything contained in Rule 53, where a Government servant under suspension dies before the disciplinary or the Court proceedings instituted 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 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 the communication in this regard is served on 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].

(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.

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[(5) In cases other than those falling under sub-rules (2) and (3) the pay and allowances payable to the Government servant for the period of suspension, shall be limited to the subsistence allowance already paid under FR.53].

(6) where suspension is revoked pending finalization of the disciplinary or the Court proceedings, any order passed under sub-rule (1) before the conclusion of the proceedings against the Government servant, shall be reviewed on its own motion after the conclusion of the proceedings by the authority mentioned in sub-rule (1) who shall make an order according to the provisions of sub-rule (3) or sub-rule (5) as the case may be.

(7) In a case falling under sub-rule (5), the period of suspension shall not be treated as a period spent on duty, [xxx]:

Provided that if the Government servant so desires, such authority may order that the period of suspension shall be converted into leave of any kind due and admissible to the Government servant.

(8) The payment of allowances under sub-rule (2), sub-rule (3) or sub-rule (5) shall be subject to all other conditions under which such allowances are admissible.

(9) [The amount] of the full pay and allowances determined under the proviso to sub-rule (3) or under sub-rule (5) shall not be less than subsistence allowance and other allowances admissible under Rule 53.

8. From the literal reading of the above provision, it is

clear that regularization of suspension period can only be

considered after conclusion of the criminal proceedings or the

disciplinary proceedings against the employee. In this case, the

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criminal case has been registered by the ACB authorities and

admittedly no disciplinary proceedings were initiated by the

department. After the trial of the criminal case, it has ended in

acquittal of the petitioner. Therefore, his case is to be

considered for regularization of the suspension period under

F.R.54(B). The petitioner was reinstated into service pending

finalization of the disciplinary or Court proceedings. As held by

the Division Bench of this Court, the criminal appeals filed

against the acquittal in a criminal case is not the continuation

of the criminal proceedings so as to deprive of his retirement

benefits such as pension and other benefits. While rendering

such a decision, the Division Bench of this Court has

considered the judgment of the Calcutta High Court in the case

of State of West Bengal and Others Vs. Hari Ramalu and

Another, reported in 2000 (4) SLR 91, and it was held that if

the appeal or revision proceedings are in continuation of the

criminal proceedings, there will be no end for the litigation and

the employees, who have been acquitted honorably, will not get

retirement benefits till conclusion of all the appeals, revisions,

SLP, etc., and therefore appeal against the acquittal not being

continuation of the original criminal proceedings, will not be

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available to the Government for withholding the retirement

benefits.

9. The decision of the Hon'ble Supreme Court relied

upon by the learned government pleader is in respect of

F.R.54(B)(3) of Andhra Pradesh Fundamental Rules and relevant

paragraph is reproduced hereunder:

Para-15. Sub-rule (3) of FR 54-B does not state that in case of acquittal in a criminal proceedings the employee is entitled to his salary and allowances for the period of suspension. Sub-rule (3) of FR 54-B also does not state that in such case of acquittal the employee would be entitled to his salary and allowances for the period of suspension unless the charge of misconduct against him is proved in the disciplinary proceedings. Sub-rule (3) of FR 54-B vests power in the competent authority to order that the employee will be paid the full pay and allowances for the period of suspension if it is of the opinion that the suspension of the employee was wholly unjustified. Hence, even where the employee is acquitted of the charges in the criminal trial for lack of evidence or otherwise, it is for the competent authority to form its opinion whether the suspension of the employee was wholly unjustified and so long as such opinion of the competent authority was a possible view in the facts and circumstances of the case and on the materials before him, such opinion of the competent authority would not be interfered by the Tribunal or the Court.

10. From the said judgment, it is clear that the

disciplinary authority has to form its opinion whether the

suspension of employee was wholly unjustified to deny the

payment of salary and allowances for the period of suspension.

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Therefore, the stand of the disciplinary authority in the present

case that because the criminal appeal is pending, the petitioner

is not entitled for regularization of the suspension period is not

sustainable.

11. In view of the above, and since the petitioner has

retired from service, this Court deems it fit and proper to direct

the respondent No.2 to pass orders under 54(B) of the said Rule