IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP(T) No. 14124 of 2008. Judgment reserved on 23.06.2011. Date of decision: 18.07.2011. _______________________________________________________ Kewal Ram. ….. Petitioner. Versus State of H.P. & ors. …. Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 Yes For the Petitioner : Mr. Jeevesh Sharma, Advocate. For the Respondents : Ms. Ruma Kaushik, Addl. Advocate No.1 to 3. General with Mr. J.S.Rana, Asstt. Advocate General. Kuldip Singh, Judge. The petitioner has prayed quashing of communication dated 18.10.2005 Annexure A-1 rejecting the request of petitioner to pay him arrears of salary, increments, and other service benefits of suspension period with a further direction to respondents to promote the petitioner to the post of ‘Jamadar’ with effect from 13.09.2006 when his juniors were promoted as ‘Jamadar’ in the pay scale of ` 2720- 4260/- with all consequential benefits. The petitioner has also prayed a direction to respondents 1 to 3 to treat suspension period of the petitioner from 20.08.2002 to 22.03.2005 as duty period and pay arrears of salary, increments and other service benefits accrued to petitioner during suspension period with all consequential benefits along with interest at the rate of 12% per annum. Whether the reporters of the local papers may be allowed to see the Judgment? Yes 2 2. The facts, in brief, are that petitioner was initially appointed as Peon in the respondent-department in the year 1981. Thereafter, he was promoted as Process Server. On the registration of F.I.R. No. 97 of 2002 at Police Station Theog under Sections 147, 148, 201, 302 read with Section 149 IPC, the petitioner was placed under suspension on 20.08.2002. The petitioner was acquitted by learned Additional Sessions Judge (Fast Track Court), Shimla, vide judgment dated 30.06.2004. The acquittal of petitioner has been assailed by way of appeal by the State which is pending in the High Court. 3. The respondent No. 2 vide Office Order dated 22.03.2005 revoked the suspension of the petitioner and posted him in the Office of respondent No.3. It has been stated in the Office Order dated 22.03.2005 that the suspension period will be treated, later on, as per the decision of the High Court. The petitioner made representations on 05.05.2005, 21.05.2005 and 12.07.2006 for release of arrears of salary, increments and other service benefits during suspension period and also maintaining seniority and promotion during suspension period. The respondent No. 3 vide letter dated 18.10.2005 took the stand that matter was still sub-judice in the High Court and would be considered after the conclusion of the appeal by the High Court. 4. The respondents without considering petitioner to the post of ‘Jamadar’ unlawfully promoted respondents 4 to 7 as ‘Jamadar’, who are much juniors to petitioner. The petitioner is at serial No. 19 in the seniority list, whereas, respondents 4 to 7 are at serial No. 26,27, 28 and 30. The respondents without application of mind rejected the 3 representations of the petitioner. The acts of respondents 1 to 3 are arbitrary and in violation of Articles 14, 16 of the Constitution. 5. The petitioner has been acquitted in the criminal case. The respondent No. 2 has revoked the suspension of the petitioner, but service benefits including arrears of salary, annual increments, seniority and promotion have been wrongly denied to the petitioner. In the present case, no departmental inquiry was initiated against the petitioner. The period when the petitioner remained under suspension is required to be treated as duty period. The petitioner has alleged that Recruitment and Promotion Rules have not been adhered to while promoting respondents 4 to 7. In alternative, it has been submitted that the D.P.C. was required to consider the case of the petitioner and keep the result in sealed cover in accordance with law. The D.P.C. has not considered the petitioner for promotion. 6. The respondents 1 to 3 contested the petition by filing reply. It has been stated in the reply that arrears of salary, increments and other service benefits to the petitioner during suspension period have been rightly rejected since criminal proceeding is still pending against the petitioner in the High Court. The respondents 4 to 7 have been rightly considered for promotion as ‘Jamadar’ since the petitioner is involved in criminal case and appeal against acquittal of petitioner is still pending in the High Court. The petitioner was also considered in the D.P.C. for promotion. The sealed cover procedure has been adopted for petitioner and has been kept in the record. The petitioner has filed rejoinder and has reiterated his case. The petitioner has submitted that he has been acquitted of the charge by learned 4 Additional Sessions Judge (Fast Track Court), Shimla, on 30.06.2004. He has admitted that appeal against his acquittal is pending in the High Court. 7. I have heard learned counsel for the parties. On behalf of the petitioner, it has been submitted that petitioner has been acquitted in the criminal case and, therefore, he is entitled to all service benefits such as arrears of pay, increments during suspension period and promotion as ‘Jamadar’ from the date his juniors respondents 4 to 7 were promoted. The appeal against acquittal of petitioner cannot be treated as trial and on acquittal by Trial Court there is double presumption in favour of petitioner of his innocence. The learned Additional Advocate General has submitted that appeal against acquittal of the petitioner in criminal case is pending in the High Court. She has submitted that the entire criminal case is open before the High Court. In case the petitioner is convicted then he is not entitled to any claim which he has laid in the writ petition. She has defended the promotion of respondents 4 to 7 as ‘Jamadar’. 8. F.R. 54 B (1) provides that 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 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 (including premature retirement), as the case may be; and (b) whether or not the said period shall be treated as a period spent on duty. 5 The sub-rule (6) further provides 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. In the present case, the competent authority has not closed the chapter so far as the salary of suspension period and other connected issues related with the suspension of the petitioner are concerned. The competent authority has connected these questions with decision in appeal. 9. The learned counsel for the petitioner has relied Shri Surinder Kumar Vs. State of Himachal Pradesh and another 1985(3) S.L.R., 254. In that case suspension order was made in order to give effect to fiction created by sub-rule (2) of Rule 10 the Central Civil Services (Classification, Control and Appeal) Rules, 1965, (for short ‘1965 Rules’). The question before the Court was whether in the facts and circumstances of that case, the continued operation of the order of suspension was legal, proper and reasonably justified in the eye of law. The court held the orders of acquittal are indubitably under challenge in the High Court. The preferment of acquittal appeals cannot, however, be regarded as continuance of the trial. The trials have concluded with the judgment of acquittal. The initial presumption of innocence must, therefore, be regarded as having been doubly reinforced by orders of acquittal passed in favour of the petitioner. The Court directed the respondent to revoke the order of suspension and to 6 reinstate the petitioner in service forthwith with effect from the date on which the orders of acquittal were recorded by the Appellate Court in criminal proceedings instituted against him. The actual period spent by petitioner under suspension and fixation of his pay and allowances for said period, the competent authority was directed to make suitable orders in accordance with law and in the light of provisions of F.R. 54. The Court has not held that the petitioner in that case automatically or as a matter of course is entitled to arrears of salary, increments and promotion after acquittal. 10. The learned counsel for the petitioner has also relied Union of India and others Vs. Dr. (Smt.) Sudha Salhan AIR 1998 SC 1094 and has submitted that if on the date on which the name of a person is considered by D.P.C. for promotion to the higher post, such person is neither under suspension nor has any departmental proceedings been initiated against him, his name, if he is found meritorious and suitable, has to be brought on the select list and the “sealed cover” procedure cannot be adopted. In the present case, according to petitioner his juniors were promoted on 13.09.2006. The petitioner was prosecuted and acquitted on 30.06.2004. The State filed appeal against judgment dated 30.06.2004 which was pending in the High Court when juniors of petitioner were promoted on 13.09.2006. Therefore, on facts the aforesaid judgment of the Supreme Court is not applicable. 11. The petitioner has also relied Brahma Chandra Gupta Vs. Union of India 1984 (2) S.L.R. 165. In that case the appellant had already retired on superannuation. No departmental inquiry was 7 initiated against him. He was prosecuted but acquitted and was reinstated. He was paid full salary for the period commencing from his acquittal. He was given ¾ salary of the suspension period. The Trial Court allowed full salary of the suspension period which was approved by the Supreme Court along with 9% interest. The effect of pendency of appeal against acquittal was not the issue before the Supreme Court in the said case. 12. In Sulekh Chand and Salek Chand versus Commissioner of Police and others 1994 Supp (3) SCC 674, it has been held that once the acquittal was on merits the necessary consequence would be that the delinquent is entitled to reinstatement as if there is no blot on his service and the need for the departmental enquiry is obviated. The material on the basis of which his promotion was denied was the sole ground of the prosecution under Section 5 (2) and that ground when did not subsist, the same would not furnish the basis for DPC to overlook his promotion. Moreover, since the departmental enquiry was itself dropped the very foundation on which the DPC had proceeded is clearly illegal. It has been held that the appellant is entitled to the promotion with effect from the date his immediate junior was promoted with all consequential benefits. The point involved in the present case is entirely different. 13. The learned counsel for the petitioner has also relied Jatindra Nath Mondal v. State of West Bengal and others AIR 1969 Calcutta 461 wherein it has been held as follows:- “10. The answer has been clearly given by the Supreme Court in cases such as Om Prakash v. State of U.P., (1955) 2 SCR 391 = (AIR 1955 SC 600) and other cases, as follows: 8 (a) Where a Government servant has been suspended pending a criminal investigation or trial, the order of suspension automatically ceases to be operative as soon as the criminal proceedings terminate by an acquittal or discharge of the Government servant. (b) Immediately after such acquittal or discharge in the criminal case, therefore, the delinquent should be deemed to have been reinstated and is accordingly entitled to recover his full salary and allowances since the date of suspension. In such a case, no question of application of F.R. 54 of the Fundamental Rules ( or any other similar Rule ) also does arise because that Rule applies when a Government servant is acquitted in a Departmental proceeding ( Raghava Rajagopala v. State of Assam, AIR 1965 Assam 109; Devendra v. State of U.P., AIR 1962 SC 1334 (1337) ). (c) Of course, notwithstanding the acquittal or discharge of the delinquent Government may initiate or continue departmental proceedings against the delinquent on the same charges upon which the criminal case had been brought ( Partap Singh v. State of Punjab, AIR 1964 SC 72). (d) But the initiation or continuance of departmental proceedings on the same allegations cannot revive the old order of suspension which had expired, by operation of law, with the termination of the criminal proceedings; hence, if the Government intended to keep the delinquent under suspension pending the disposal of the departmental proceedings, after the termination of the criminal case, a fresh order of suspension has to be made by the Government, (AIR 1962 SC 1334, ibid,) except where there are statutory Rules providing for an automatic revival and continuance of the old order of suspension ( ibid; Khem Chand v. Union of India, AIR 1963 SC 687). 11. But in the absence of any specific Rule authorizing the revival of the defunct order of suspension, if no fresh order of suspension is made after termination of the criminal case, the delinquent must be deemed to have been reinstated, with the necessary benefit of salaries and allowances since the date of the original order of suspension, notwithstanding the fact that a departmental proceeding may still be hanging upon the petitioner.” 9 14. The learned Additional Advocate General has relied Krishnakant Raghunath Bibhavnekar V. State of Maharashtra & Ors. JT 1997 (3) S.C. 726 in which it has been held as follows:- “……the question emerges: whether the Government servant prosecuted for commission of defalcation of public funds and fabrication of the records, though culminated into acquittal, is entitled to be re-instated 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 the discipline if a person suspended on valid considerations is given full back wages as a matter of course, on his acquittal as a matter of course, on his acquittal….” 15. The substance of submissions of learned counsel for the petitioner is that since the petitioner has been acquitted in the criminal case, therefore, he is entitled to arrears of pay, increments, during suspension period along with promotion as ‘Jamadar’ with effect from 13.09.2006 when his juniors were promoted as ‘Jamadar’. The petitioner has not denied that his acquittal recorded by learned Additional Sessions Judge (Fast Tract Court ), Shimla, on 30.06.2004 has been assailed by the State and the appeal is pending in the High Court. 16. In Radha Kishan V. State of Uttar Pradesh AIR 1963 SC 822, it has been held that appeal from acquittal need not be treated differently from an appeal from conviction and if the High Court in appeal finds that the acquittal is not justified by the evidence on record, it can set aside the acquittal without coming to the conclusion that there were compelling reasons for doing so. The Supreme Court in A.P.Raju Versus State of Orissa 1995 ( Supp) (2) SCC 385 has held 10 that the High Court has full powers to review the evidence on record and arrive at independent conclusion in an appeal against acquittal. 17. The Supreme Court in Chandrappa & Ors. V. State of Karnataka 2007 CRI.L.J. 2136 has again reiterated that the Appellate Court in appeal against acquittal has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded. 18. It is not necessary to multiply the judgments on the point. The proposition of law which emerges from the aforesaid judgments of the Supreme Court is that in an appeal against acquittal everything is open before the Appellate Court. In presence of pendency of appeal against acquittal criminal proceeding cannot be treated as terminated against public servant. On the contrary, the criminal proceeding will depend upon the outcome of the decision in the Appellate Court. In these circumstances, it cannot be said that as of today the petitioner in criminal case has got clean-chit. The acquittal of the petitioner by the learned Additional Sessions Judge, Shimla, vide judgment dated 30.06.2004 is subject to the outcome of appeal which is pending in the High Court. 19. The suspension order of the petitioner was revoked vide Office Order dated 22.03.2005. It was directed that suspension period will be treated, later on, as per the decision of the High Court. The representation of the petitioner for arrears of salary, increments and other service benefits during suspension period could not be considered till the decision in appeal by the High Court. 11 20. In so far as the promotion of the petitioner is concerned, the petitioner in the petition himself has stated that in the alternative the department should follow sealed cover procedure. In the reply, the respondents have stated that the case of the petitioner for promotion was considered and sealed cover procedure has been adopted and placed on record. It is, thus, clear from the stand of the respondents that sealed cover would be opened after the decision in appeal against acquittal. 21. The Government of India after judgment of the Supreme Court in Union of India Vs. K.V. Jankiraman AIR 1991 SC 2010 issued revised instructions on 14.09. 1992 which have been adopted in Himachal Pradesh on 03.12.1992 and incorporated in Chapter 16.32 (2) (i) (ii) (iii) and (iv) reproduced in Handbook on Personnel Matters, Volume-I, (Second Edition), Government of Himachal Pradesh. The Chapter 16.32 (2),(iv) (a) provides that on conclusion of disciplinary case/criminal prosecution which results in dropping of allegation against government servant, the sealed cover or covers shall be opened in case the government servant is completely exonerated, the due date of his promotion will be determined with reference to the position assigned to him in the findings kept in the sealed cover/covers and with reference to the date of promotion to his junior on the basis of such position. However, whether officer concerned will be entitled to any arrears of pay for the period of notional promotion preceding the date of actual promotion, and if so to what extent will be decided by appointing authority by taking into consideration all the facts and circumstances of the disciplinary proceedings/criminal prosecution. 12 Where authority denies arrears of salary or part of it, it will record his reasons for doing so, it is not possible to anticipate, enumerate exhaustively all the circumstances under which such denial of arrears of salary or part of it become necessary. 22. The appeal against the acquittal judgment dated 30.06.2004 is pending in the High Court and, therefore, it cannot be said that criminal proceeding against the petitioner has terminated into acquittal. The petitioner is not entitled to reliefs claimed in the petition in view of pendency of appeal. It has not been rightly argued on behalf of the petitioner that petitioner would be entitled to reliefs prayed in the petition even if he is convicted in appeal. Once the appeal is pending against acquittal, it cannot be said what will be the decision in the appeal. Therefore, it is pre-mature, at this stage, for the petitioner to claim reliefs prayed in the petition till the criminal appeal is decided in his favour. The case of the petitioner is open and, therefore, it cannot be said that merely pendency of appeal has caused any prejudice to the petitioner. The result of above discussion, the petition fails and is accordingly dismissed. July 18, 2011. (Kuldip Singh), ( krt) Judge.