THE HON’BLE SRI JUSTICE B.PRAKASH RAO AND THE HON’BLE SRI JUSTICE RAMESH RANGANATHAN W.P.No.17196 of 2006 Date: 20.09.2006 The Government of Andhra Pradesh, Higher Education Department, Secretariat, Hyderabad and two others. … Petitioners. And S. Rama Rao. … Respondent. THE HON’BLE SRI JUSTICE B.PRAKASH RAO AND THE HON’BLE SRI JUSTICE RAMESH RANGANATHAN W.P.No.17196 of 2006 JUDGMENT: (per Hon’ble Sri Justice Ramesh Ranganathan) The present writ petition is filed against the order of the Tribunal, in O.A.6893 of 2004 dated 28.10.2005, whereby the action of the petitioners herein in treating the period of suspension of the applicant as extraordinary leave, was held to be illegal and the petitioners herein were directed to treat the period spent by the respondent – applicant under suspension, in both the spells i.e., from 23.9.1989 to 26.3.1990 and again from 26.10.1993 to 25.6.1997, as on duty. Facts, in brief, are that the respondent – applicant was placed under suspension, vide proceedings dated 13.9.1989 pending enquiry into certain allegations against him. He was reinstated into service, vide proceedings dated 24.2.1990, and was permitted to join duty on 26.3.1990. The disciplinary proceedings ended in the imposition of punishment of stoppage of one increment without cumulative effect, vide proceedings dated 29.11.1995. In the meanwhile, the respondent-applicant was again placed under suspension, vide proceedings dated 14.10.1993, on the ground of pendency of the criminal case, filed against him by the officials of A.P.S.E.B, alleging pilferage of electricity. In the said criminal case (C.C.202/93), the respondent – applicant was acquitted by the criminal court by its judgment dated 25.11.1995. The respondent was eventually reinstated into duty on 10.6.1997. He was thus under suspension from 26.10.1993 to 25.6.1997 during this spell. Even after the respondent – applicant was acquitted in the criminal case, no disciplinary proceedings were initiated against him. The respondent – applicant submitted a representation on 8.4.2004, to the 3rd petitioner – herein, to treat both the spells of suspension, from 23.9.1989 till 26.3.1990 and again from 26.10.1993 till 25.6.1997, as on duty with full pay and allowances, with all consequential benefits, to fix his pay in the revised pay scales with all attendant benefits and to pay arrears with 18% interest per annum. The respondent-applicant filed O.A.2901 of 2004, and the Tribunal, by order dated 4.5.2004, directed the 3rd petitioner herein to dispose of the representation of the respondent-applicant dated 8.4.2004 in terms of F.R.54-B and pass appropriate orders within four weeks from the date of receipt of a copy of the order. On receipt of the orders of the Tribunal, the Director of Intermediate Education, vide proceedings dated 6.8.2004, after careful examination of the facts of the case, held that the period from 23.9.1989 to 26.3.1990 (1st spell) and the period from 26.10.1993 to 25.6.1997 (2nd spell) be treated as extraordinary leave without pay and allowances. Aggrieved thereby the respondent applicant filed O.A.6893 of 2004. The Tribunal held that the respondent- applicant was placed under suspension, in two different spells, when the proviso to FR54-B was in existence, and that consequent upon the first spell of suspension the respondent-applicant was inflicted with the minor punishment of stoppage of one increment without cumulative effect. The Tribunal held that the respondent- applicant was entitled to be treated as on duty in accordance with the provision which existed then, and, since the petitioners herein had not initiated disciplinary proceedings consequent upon conclusion of the criminal proceedings and the respondent- applicant had been reinstated into service and further promoted as a Principal, under such circumstances, when they had taken a decision to regulate the period spent under suspension during the spell, they ought to have taken note of the proviso which was in existence at the relevant period of time. Relying on the judgment of the Supreme Court, in Y.V. Rangaiah v. J. Sreenivasa Rao[1], the Tribunal held that the action of the petitioners herein in treating the period of suspension as extraordinary leave did not hold water for the simple reason that during the relevant period of time the proviso to F.R.54-B was in existence and the case of the respondent-applicant was required to be treated in the light of the proviso. On setting aside the impugned order, the Tribunal directed the petitioners herein to treat the period spent by the respondent-applicant under suspension, in both the spells from 23.9.1989 to 26.3.1990 and again from 26.10.1993 to 25.6.1997, as on duty. Aggrieved thereby, the present writ petition is filed. Learned Government Pleader for Higher Education would submit that, in so far as the first spell of suspension from 23.9.1989 to 26.3.1990 is concerned, the suspension period was prior to the insertion of the proviso to F.R.54-B(5), vide G.O.Ms.No.182 dated 31.10.1992 which came into effect from 7.4.1992 and that the said amendment did not, therefore, apply to the first spell of suspension. Learned Government Pleader would submit that, in any event, since the proviso in its entirety was omitted, vide G.O.Ms. No.214 dated 22.12.1997, much prior to 8.4.2004 when the petitioner submitted his representation and 4.5.2004 when the Tribunal in O.A.2901 of 2004 directed that the respondent-applicant’s representation be considered in accordance with F.R.54-B, the respondent-applicant’s case was required to be considered in accordance with F.R.54-B dehors the proviso and since F.R.54-B confers a discretion on the competent authority to determine the manner in which the period of suspension is to be treated, the Tribunal had erred in sitting in judgment over the discretion exercised by the competent authority in this regard. In so far as the second spell of suspension, from 26.10.1993 to 25.6.1997 is concerned, Learned Government Pleader would place reliance on the judgment of the Apex Court in Management of Reserve Bank of India v. Bhopal Singh Panchal[2], Krishnakant Raghunath Bibhavnekar v. State of Maharashtra[3], and Smt. K. Ponnamma v. The State of Kerala[4] in support of her submission that where an employee is placed under suspension, on account of his involvement on a criminal charge, he continues to be under suspension, by statutory operation, till he is acquitted and since the employer is not responsible for his suspension, the delinquent employee is not entitled to claim that the period spent by him under suspension should be treated as on duty, merely because he was acquitted in the criminal case later. Sri Chandraiah Sunkara, learned counsel for the respondent-applicant, on the other hand, would submit that the petitioners herein had deliberately suppressed the relevant facts and since suppression of facts amounts to an abuse of process of Court the writ petition is liable to be dismissed in limini. Learned Counsel would submit that the rules, notified in G.O.Ms. No. 182 dated 31.10.1992, were amended in G.O.Ms. No. 59 dated 27.03.1995, applying the benefit, under G.O. Ms. No. 182, even to cases of suspension prior to 07.04.1992. According to the Learned Counsel, the petitioners herein had suppressed the fact that G.O.Ms. No. 182 dated 31.10.1992 was amended in G.O.Ms. No. 59 dated 27.03.1995. Learned Counsel would further submit that the 2nd petitioner herein had issued proceedings dated 14.07.2006 in compliance with the notice received in the contempt case treating the period of suspension from 25.11.1995, when the respondent-applicant was acquitted in the criminal case, till he was reinstated to duty on 25.06.1997 “as on duty” and had held that the respondent-applicant shall be entitled for all consequential benefits. According to the learned Counsel, since these proceedings dated 14.07.2006 have also been suppressed, the writ petition as filed is liable to be dismissed as an abuse of process of Court. Learned Counsel would refer to G.O.Ms. No.188 dated 26.5.1998 and submit that an employee, on a punishment being imposed on him, is disentitled from being considered for promotion, and as the respondent-applicant was promoted as a Principal, the petitioners herein must be held to have waived the punishment imposed and as a result of such waiver the respondent-applicant would be automatically entitled for payment of salary and allowances for the period of suspension. Learned Government Pleader, in reply, would submit that, while the proceedings dated 14.07.2006 issued by the 2nd petitioner was consequent to the memo issued by the 1st petitioner dated 12.07.2006 which in turn was issued in compliance with the notice issued by the Tribunal in C.A. No. 361 of 2006, subsequently the 1st petitioner, vide memo dated 11.08.2006, while referring to the earlier government memo dated 12.07.2006, had held that its decision, in the memo dated 12.07.2006, would be subject to the outcome of the writ petition to be filed by the government in the High Court. On a specific query from this Court as to the justification of the Government in filing of the writ petition when it had, in its memo dated 12.07.2006, decided to treat the period of suspension from 25.11.1995 to 25.06.1997 as “on duty”, the Learned Government Pleader would fairly concede that, on the respondent- applicant’s acquittal in the criminal case on 25.11.1995, since he was not reinstated into duty till 25.06.1997 the respondent applicant could not be faulted for his being continued under suspension, and to this extent, in the second spell of suspension, from 25.11.1995 till 25.06.1997, the order of the government, in its memo dated 12.07.2006, was in order. Taking into account this fair concession of the Learned Government Pleader, with which we are in complete agreement, no interference is called for with the order of the Tribunal in treating the period of suspension of the respondent-applicant, during the spell from 25.11.1995 till 25.06.1997, as “on duty”. Since we are affirming the order of the Tribunal, it is wholly unnecessary for us to examine the contention as to whether or not the failure to refer to the proceedings dated 12.07.2006 amounts to an abuse of process of Court. Since the amendment in G.O.Ms. No. 59 dated 27.03.1995, is an omission of a part of a rule, the contention that failure to refer to the amendment of the rules in G.O.Ms. No. 59 dated 27.03.1995 amounts to suppression of facts does not merit acceptance. The question which arises for consideration is the manner in which the period of suspension of the respondent-applicant, from 23.09.1989 to 26.03.1990 (1st spell) and 26.10.1993 to 25.11.1995 (2nd spell) should be treated. Before examining this question, it is necessary to extract F.R.54-B in its entirety. “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 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. (2) Notwithstanding anything contained in Rule 53, where a Government servant under suspension dies before the disciplinary or 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 communication to 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 duly for all purposes. (5) In cases other than those falling under sub-rules (2) and (3), the Government servant shall subject to the provisions of sub-rules (8) and (9), be paid [such amount (not being the whole) of the pay and allowances] to which he would have been entitled had he not been suspended, 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 in no case shall exceed sixty days from the date on which the notice has been served] as may be specified in the notice: (6) Where suspension is revoked pending finalisation of the disciplinary or 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, unless the competent authority specifically directs that it shall be so treated for any specified purpose: 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 the substantive allowance and other allowances admissible under Rule 53. F.R.54-B was amended and, after Sub-rule (5) thereof, a proviso was inserted by G.O.Ms.No.182 dated 31.10.1992, that in cases where the departmental proceedings against an employee, placed under suspension on or after 7.4.1992 for imposition of a major penalty, finally ended with a minor penalty, the suspension can be said to be wholly unjustified and such employee shall be paid full pay and allowances for the period of suspension by passing an appropriate order. This amendment was notified in G.O.Ms.No.182 dated 31.10.1992 and was deemed to have come into force from 7.4.1992. The benefit of the proviso inserted to F.R.54-B(5), in G.O.Ms.No.182 dated 31.10.1992, was sought for, even in cases, where the suspension pertained to a period prior to 7.4.1992, and which were pending settlement. The Government took note of the order of the Tribunal in O.A.3056 of 1993 and the advice of the Law Department and, after careful consideration of the matter, decided to amend the proviso to sub-rule (5) of F.R.54 omitting the expression “on or after 7.4.1992”. Subsequently the proviso, which was inserted by G.O.Ms.No.182 dated 31.10.1992, was omitted in its entirety in G.O.Rt.No.214 dated 22.12.1997. While it is true that the 1st spell of suspension of the respondent-applicant, from 23.09.1989 till 26.03.1990, was prior to insertion of the proviso to sub-rule (5) of F.R.54-B, vide G.O.Ms. No. 182 dated 31.10.1992, it cannot be lost sight of that the respondent-applicant was inflicted with the punishment, of stoppage of one increment without cumulative effect, only on 29.11.1995. It is only when the minor penalty, of withholding of one increment without cumulative effect, was imposed on the respondent-applicant on 29.11.1995, is the relevant statutory provision, in force during the said period, required to be taken into consideration. While F.R. 54-B (1) requires the competent authority, on reinstatement of a government servant, to make a specific order regarding the pay and allowances to be paid for the period of suspension and as to whether or not the said period should be treated as spent on duty, Sub-rule(6) provides that where the suspension is revoked, pending finalization of the disciplinary proceedings, any order passed under sub-rule(1), before the conclusion of the proceedings against a government servant, shall be reviewed by the competent authority, on its own motion, after conclusion of the disciplinary proceedings. Even if the competent authority had passed an order under F.R.54-B(1), soon after the respondent – applicant was reinstated to duty on completion of the first spell of suspension on 26.3.1990, it would have been required to review, on its own motion, the decision taken earlier after the punishment, of stoppage of one increment without cumulative effect, was inflicted on the respondent- applicant on 29.11.1995. In the present case, since no order was passed earlier under F.R. 54-B(1), when the respondent-applicant was reinstated in service on 26.3.1990 prior to completion of the disciplinary proceedings, the competent authority was statutorily required, in terms of F.R.54-B(6), to take a decision, regarding the pay and allowances to be paid for the period of suspension and whether or not the said period should be treated as on duty. In effect, F.R. 54(B)(6) requires this decision to be taken or, if already taken earlier, to review such a decision, on completion of disciplinary proceedings. Since the disciplinary proceedings stood concluded, consequent upon the order of punishment dated 29.11.1995, whereby a minor penalty was inflicted, the rule in force, on the date when the respondent-applicant was imposed the punishment, is the rule which is required to be applied. On 29.11.1995, the proviso to sub-rule (5) of F.R.54-B, as inserted in G.O.Ms.No.182 dated 31.10.1992, had been amended vide G.O.Ms.No.59 dated 27.3.1995 and as on that date, the expression “on or after 7.4.1992” was omitted making the proviso to F.R.54-B(5), applicable even to cases of suspension which had not been settled till then, even though the suspension related to a period prior to 7.4.1992. As such the proviso to sub-rule (5) of F.R.54-B, as amended vide G.O.Ms. No. 59 dated 27.03.1995, is the rule which is applicable to the case of the respondent- applicant. Accordingly the first spell of the suspension of the respondent-applicant, for the period from 23.09.1989 till 26.03.1990, must be held to be wholly unjustified and the respondent-applicant must be held to be entitled for payment of full pay and allowances for this period of suspension. The order of the Tribunal, in treating the first spell of suspension of the respondent applicant, i.e., from 23.9.1989 to 26.3.1990, as on duty does not, in our view, call for interference. Learned Government Pleader for Higher Education would, however, submit that the expression “on or after 7.4.1992” was omitted in the proviso to sub-rule (5) of F.R.54-B and since G.O.Ms.No.182 dated 31.10.1992, which brought forth the amendment to F.R.54-B(5) by insertion of the proviso was specifically deemed to have come into force from 7.4.1992, the omission of the words “on or after 7.4.1992”, vide G.O.Ms.No.59 dated 27.3.1995, was of no consequence, since even in the absence of the date, from which the amendment would come into force, being specified, any amendment to a rule is normally, prospective in its operation. This submission, of the Learned Government Pleader, does not merit acceptance. Firstly, the very object of issuing G.O.Ms. No. 59 dated 27.03.1995, as stated in the preamble to the G.O, is to extend the benefit of the proviso to F.R.54-B even to cases of suspension prior to 7.4.1992 which were pending settlement. A purposive interpretation has to be placed to the said amendment and, when so read, it is clear that the object of the amendment, in G.O.Ms. No. 59 dated 27.03.1995, was to extend the benefit of the proviso even to cases of suspension prior to 7.4.1992. While the period of suspension of the respondent-applicant was prior to 7.4.1992, it was pending settlement and, therefore, the benefit of the proviso was required to be extended to the respondent-applicant. Secondly, if the contention of the learned Government Pleader, that G.O.Ms.No.182 dated 31.10.1992 must be held to be prospective, were to be accepted, the very amendment, in G.O.Ms.No.59 dated 27.3.1995, must be held to be an exercise in futility. If, even after omission of the words “on or after 7.4.1992” in the proviso to sub- rule (5) of F.R.54-B, the amendment in G.O.Ms.No.182 dated 31.10.1992, is held to be prospective in its application, it would, in effect, mean that the rule making authority had indulged in a wholly unnecessary exercise of deleting the words “on or after 7.4.1992”, in G.O.Ms. No. 182 dated 31.10.1992, vide G.O.Ms. No. 59 dated 27.03.1995. On a reading of the preamble to the amendment in G.O.Ms. No. 59 dated 27.03.1995, it is clear that such was not the intention of the rule making authority. The contention of the learned Government Pleader that, since the proviso in its entirety was omitted, by G.O.Rt.No.214 dated 22.12.1997, prior to the submission of the representation by the respondent-applicant on 8.4.2000, no reliance can be placed on the proviso to sub-rule (5) of F.R.54(B), does not also merit acceptance. The amendment, notified in G.O.Rt.No.214 dated 22.12.1997, specifically provides that it would come into force with immediate effect i.e., from the date it was notified in G.O.Rt.No.214 dated 22.12.1997. Since the proviso was omitted from 22.12.1997, and since the period of suspension of the petitioner was from 23.9.1989 to 26.3.1990 and the punishment of stoppage of one increment without cumulative effect as imposed on 29.11.1995, were both prior thereto, the omission of the proviso, vide G.O.Rt.No.214 dated 22.12.1997, would not disentitle the respondent - applicant from claiming the benefit of the proviso to sub-rule (5) of F.R.54-(B), in G.O.Ms. No. 182 dated 31.10.1992 as amended vide G.O.Ms. No. 59 dated 27.03.1995. We agree with the learned Govt. Pleader that the Tribunal had erred in placing reliance on the judgment of the Supreme Court in Y.V. Rangaiah1, wherein it was held that the vacancies, which had arisen prior to the amended rules, would be governed by the old rules and not by the amended rules and that promotions were required to be made under the old rules and not by the amended rules. The said judgment cannot be pressed in aid, while interpreting the proviso to sub-rule (5) of F.R.54-B. Nonetheless, for the reasons afore-stated, we see no reason to interfere with the order of the Tribunal in holding that the respondent – applicant was entitled for payment of salary and allowances for the period of suspension from 23.9.1989 till 26.3.1990 and to have the said period of suspension treated as “on duty”. Now the period of suspension from 26.10.1993 till 29.11.1995, when the petitioner was placed under suspension pending the criminal case in C.C. No. 202 of 1993. The Proviso to F.R.54-B(5) relates only to cases where an employee is placed under suspension pending disciplinary proceedings in which he is imposed a minor penalty and does not apply to cases of suspension pending criminal proceedings. The Tribunal, therefore, erred in applying the proviso to F.R.54-B(5) even for this spell of suspension. In Bhopal Singh Panchal2, the Supreme Court, while interpreting Regulations 39, 46 and 47 of the Reserve Bank of India (Staff) Regulation, 1948, observed:- “…….We have already pointed out the effect of the relevant provisions of Regulations 39, 46 and 47. The said regulations read together, leave no manner of doubt that in case of an employee who is arrested for an offence, as in the present case, his period of absence from duty is to be treated as not being beyond circumstances under his control. In such circumstances, when he is treated as being under suspension during the said period, he is entitled to subsistence allowance. However, the subsistence allowance paid to him is liable to be adjusted against his pay and allowances if at all he is held to be