GOVERNMENT
OF ANDHRA P RADESH
Cir.Memo
No.32419/838/FR-II/2003, Dated: 19-06-2004
Sub:- Establishment - Fundamental Rules - Payment of consequential benefits i.e. back wages for period of suspension in the case of acquittal in Court cases - certain clarificatory instructions based on Judgement of the Supreme Court of India - Issued.
Ref:- 1. Law Dept., U.O.No.1068/1/2004, dt.20.02.2004.
2. GA
(Ser.C) Dept., U.O.No.29663/Ser.C/A2/04, dt.01.03.2004.
According to Instructions 1 under FR 54 a Government Servant, who has been committed to prison either for debt or on criminal charges should be considered as under suspension from the date of his arrest and therefore entitled only to subsistence allowance under Rule 53 until the termination of the proceedings against him, when, if he is not dismissed, an adjustment of his pay and allowances should be made according to the conditions and terms prescribed in Rule 54, the full amount being given only in the event of Government servant being considered to the acquitted of blame, or (if the imprisonment was for debt) of its being proved that the Government servants' liability arose from circumstances beyond his control.
(2) (i) Where the dismissal, removal or compulsory retirement of a Government servant is set aside by the court, solely on the ground of non-compliance with the requirements of [clause (1) or clause (2) of Article 311 of the Constitution], and where he is not exonerated on merits, the Government servant shall, subject to the provisions of sub-rule (7) of Rule 54, be paid [such amount (not being the whole) of the pay and allowances] to which he would have been entitled had he not been dismissed, removed or compulsorily retired, or suspended prior to such dismissal removal or compulsory retirement, as the case may be, 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 connection within such period [which is no case shall exceed sixty days from the date on which the notice has been served] as may be specified in the notice.
3. The Hon'ble Supreme Court of India in
Civil Appeal No.1868 of 1977 reported in AIR in case of Krishna Kanth Raghunath
Bibharvnekar Vs. State of Maharashtra & others held that "Acquittal
does not automatically entitle one to get the consequential benefits." The
operative portion of the Judgement is as follows:-
"Ranjit Kumar, learned Counsel for the appellant, contends that under Rule of the Maharashtra Civil Services (Joining Time, Foreign Services, and Payment during suspension, Dismissal and Removal) Rules, 1991 (for short, the 'Rules'), the Rules cannot be applied to the appellant nor would the respondents be justified in treating the period of suspension of appellant, as the period of suspension, as not being warranted under the Rules. We find no force in the contention. It is true that when a government servant is acquitted of offences, he would be entitled to re-instatement. But the question is: whether he would be entitled to all consequential benefits including the pensionary benefits treating the suspension period as duty period, as contended by Shri Ranjit Kumar? The object of sanction of law behind prosecution is to put an end to crime against the society and laws thereby intends to restore social order and stability. The purpose of prosecution of a public servant is to maintain discipline in service, integrity, honesty and truthful conduct in performance of public duty or for modulation of his conduct to further the efficiency in public service. The Constitution has given full faith and credit to public acts. Conduct of Public servant has to be an open book; corrupt would be known to everyone. The reputation would gain notoriety. Though legal evidence may be insufficient to bring home the guilt beyond doubt or fool-proof. The act of reinstatement sends ripples among the people in the office / locality and sows wrong signals for degeneration of morality, integrity and rightful conduct and efficient performance of public duty. The constitutional animation of public faith and credit given to public acts, would be undermined. Every Act or the conduct of a public servant should be to effectuate the public purpose and constitutional objective public servant renders himself accountable to the public. The very cause for suspension of the petitioner and taking punitive action against him was his conduct that led to the prosecution of him for the offences under the Indian Penal Code. If the conduct alleged is the foundation for prosecution, though it may end in acquittal on appreciation lack of sufficient evidence, the question emerges: whether the Government servants prosecuted for commission of defalcation of public funds and fabrication of the records though culminated into acquittal, is entitled to the reinstated with consequential benefits? 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 be deleterious to the maintenance of discipline if a person suspended on valid considerations is given full back wages as a matter of course, on his acquittal. 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 acquittal was accorded on a positive finding that the accused did not commit the offence at all; but acquittal is not on benefits of doubt given. Appropriate action may be taken thereon. Even otherwise, the authority may, on reinstatement after following the principles 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 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 to the date of the acquittal for purpose of computation of pensionary benefits. The applicant is also not entitled to any other consequential benefits as enumerated in paragraph 5 and 6 of the additional affidavit: Under these circumstances, we do not think that the Tribunal has committed any error. The appeal is accordingly dismissed but, in the circumstances of this case no costs".
4. Where an employee was suspended from service on being arrested for criminal offence and subsequently acquitted, the Supreme Court in Management of Reserve Bank of India vs. Bhopal Sing Panchal (AIR 1994 SC 552) held that, "the employee does not automatically become entitled to full pay and allowances for suspension period. The court observed that during this period the employee renders no work. He is absent for reasons of his own involveme11t in the misconduct and the bank is in no way responsible for keeping him away from his duties. The Bank, therefore, cannot be saddled with the liability to pay him his salary and allowances for the period. That will be against the principle of "no work, no pay" and positively inequitable to those who have to work and earn their pay,"
5. In another case of K. PONNAMMA (SMT),
vs. STATE OF KERALA AND OTHERS, SLP (C) No.4885 of 1997 (From the Judgement and
Order dated 7.11.1996 of the Kera la High Court in W.A.No.850 of 1996), decided
on March 17, 1997, and delivered the following judgement:
"A reading of r. 56 and 57 would clearly indicate that where an officer has been kept under suspension, on account of the pendency of the charges I detention for 48 hours and continued to remain under suspension pending the trial of the criminal charge, statutorily he/she is disabled to perform the duties of the post. On reinstatement under r. 56, the competent authority shall have a duty to consider whether, on reinstatement, the suspended officer would be entitled to the payment of full pay etc. for the period of his suspension. The mandate of r. 56 is that the competent authority should consider the case in accordance with the rules and pass the order. The nature of the order is discretionary depending upon the facts in the case. It is seen that on account of the involvement of the petitioner in a criminal charge by statutory operation, she was under suspension till she was acquitted. On acquittal, the departmental enquiry was conducted as to the nature of the order to be made under r. 56. Accordingly, the authority, in its discretion, found that the payment of the salary during the period of suspension except suspension allowance already paid, could not be granted. It being in accordance with the rules, the High Court has committed no error warranting interference."
6. In Ranchhodji Chaturji Thakore Vs.
Superintendent of Engineer, Gujarat Electricity Board (Special Leave Petition
No.22538 of 1996) Supreme Court of India, 1997 (2) SLJ 38, delivered the
following judgement:
"This case does not warrant
interference for the reason that, admittedly, the petitioner was charged for an
offence under Section 302 read with Section 34 IPC for his involvement in a
crime committed on 1.10.1986. The Sessions Judge had convicted the petitioner
under Section 302 read with Section 34 IPC and sentenced him to undergo
imprisonment for life. On that basis, the respondents had taken action to have
him dismissed from service since he was working as a Junior Clerk in the
respondent-Electricity Board. The petitioner challenged the validity of the
dismissal order by way of a special civil application filed under Article 226
of the Constitution. Pending disposal, the Division Bench of the High Court by
its judgement dated 14.10.1992 acquitted him of the offence. Consequently,
while disposing of the writ petition, the learned Single Judge directed the
respondent to reinstate him into the service with continuity of the service but
denied back wages. The petitioner then filed Letters Patent Appeal No.319 of
1993 which was dismissed by the impugned order dated 26.8.1993. Thus, this
special leave petition.
The reinstatement of the petitioner into the service has already been ordered by the High Court. The only question is whether he is entitled to back wages. It was his conduct of involving himself in the crime that was taken into account for his not being in service of the respondent. Consequent upon his acquittal, he is entitled to reinstatement for the reason that his service was terminated on the basis of the conviction by operation of proviso to the statutory rules applicable to the situation. The question of back wages would be considered only if the respondents have taken action by way of disciplinary proceedings and the action was found to be unsustainable in law and he was becomes relevant. Each case requires to be considered in his own backdrop. In this case, since the petitioner had involved himself in a crime, though he was later acquitted, he had disabled himself from rendering the service on account of conviction and incarceration in jail. Under these circumstances, the petitioner is not entitled to payment of back wages. The learned Single Judge and the Division Bench have not committed any error of law warranting interference."
7. In Union of India Vs. Jaipal Singh in Civil Appeal No.8565 of2003 @ Spl. Leave petn. (C) No.24017 of2002), dated November 3, 2003, held that
The above appeal has been filed against the order of the Division Bench of the High Court of Punjab and Haryana at Chandigarh dated 30.10.2001 in CWP No.12929 of 1999 whereunder the Division Bench has allowed the writ petition filed by the respondents with full back wages and consequently benefits. The respondent was involved in a criminal case, and he was charge-sheeted for an offence under Section 302 read with Section 34 of the IPC along with his brother and though he was convicted by the learned Additional Sessions Judge, Rewari for the same by a judgement dated 5.3.1997, on further appeal, before the High Court, the Division Bench of the High Court returned a verdict of acquittal. As a consequence, thereof, since he was not reinstated in spite of the order of acquittal, he moved the High Court and obtained orders, as noticed supra. Aggrieved, the appellants have come before this Court.
Heard Mr. Raju Ramachandran, learned Additional Solicitor General appearing for the appellants, who placed strong reliance upon the decision of this Court in 1996 (11) sec 603 (1997 AIR sew 1128: AIR 1997 SC 1802). Ranchhodiji Chaturji Thakore v. Superintendent Engineer, Gujarat Electricity Board, Hirnmatnagar (Gujarat) and Anr, wherein this Court, in a case identical to the facts of the present case, has chosen to order only reinstatement but denied back-wages on the ground that the department was in no way concerned with the criminal case and, therefore, cannot be saddled with liability also for back wages for the period when he was out of service during / after conviction suffered by the respondent. In the criminal case. Per contra, Mr. Ranbir Singh Yadav, learned counsel for the respondent sought to place reliance upon an order of this Court dismissing the special leave petition filed summarily against the judgement of the very same High Court dated 19.07.2001 in CWP No.10201 of 2000. Learned counsel for the respondent, by inviting our attention to the judgement of the High Court in that case contended that on facts the case on hand was also similar to the case considered therein but this Court dismissed the special leave petition when the relief granted for reinstatement and back wages was contested by the authorities before this Court.
On a careful consideration of the matter and the materials on record, including the judgement and orders brought to our notice, we are of the view that it is well accepted that an order rejecting a special leave petition at the threshold without detailed reasons therefor does not constitute any declaration of law by this Court or constitute a binding precedent. Per Contra, the decision relied upon for the appellant is one on merits and for reasons specifically recorded therefor and operates as a binding precedent as well. Ongoing through the same, we are in respectful agreement with the view taken in 1996 (11) SCC 603 (supra) (1997 AIR SCW 1128: AIR 1997 SC 1802). If prosecution, which ultimately resulted in acquittal of the person concerned was at the behest or by department itself, perhaps different considerations may arise. On the other hand, if a citizen the employee or a public servant got involved in a criminal case and if after initial conviction by the trial Court, he gets acquittal on appeal subsequently, the department cannot in any manner be found fault with for having kept him out of service, since the law obliges, a person convicted of an offence to be so kept out and not to be retained in service. Consequently, the reasons given in the decision relied upon, for the appellants are not only convincing but are in consonance with reasonableness as well. Though exception taken to that part of the order directing reinstatement cannot be sustained and the respondent has to be reinstated, in service, for the reason that the earlier discharge was on account of those criminal proceedings and conviction only, the appellants are well within their rights to deny back wages to the respondent for the period he was not in service. The appellants cannot be made liable to pay for the period for which they could not avail of the services of the respondent. The High Court in our view, committed a grave error, in allowing back wages also, without adverting to all such relevant aspects and considerations. Consequently, the order of the High Court in so far as it directed payment of back wages are liable to be and is hereby set aside.
The respondent will be entitled to back wages from the date of acquittal and except for the purpose of denying the respondent actual payment of back wages, that period also will be counted as period of service, without any break. The reinstatement, if not already done, in terms of the order of the High Court will be done within thirty days from today.
The appeal is allowed and disposed of on the above terms.
8. All the Departments of Secretariat and all HODs / PSU's / Universities etc., may keep in view the above observation of Supreme Court of India while deciding the issue and communicate all subordinates concerned.
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