IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 18.7.2008. C O R A M : The Hon'ble Mr.Justice P.K.MISRA and The Hon'ble Mr.Justice M.SATHYANARAYANAN W.P.No.16755 of 2008 V.S.Paulraj Petitioner -vs- 1. The Chairman, Central Board of Trustees, rep by the Secretary/ Central Provident Fund Organisation, Bhavishyanidhi Bhawan, Bhikaji Cama Place, New Delhi 110 066. 2. The Regional PF Commissioner, Employees' Provident Fund Organisation, Regional Office, Royapettah, Chennai 600 014. 3. The Registrar, Central Administrative Tribunal, Chennai Bench, High Court Buildings, Chennai 600 104. Respondents Writ petition for issue of a writ of certiorarified mandamus calling for the records from the files of the third respondent Tribunal in O.A.No.475 of 2007 and quash the order dated 28.1.2008 and consequently direct respondents 1 and 2 to regularize the period of suspension from 16.9.1997 to 19.1.2002. For petitioner : Mr.K.M.Ramesh For respondents : Mr.Vijay Shankar for Mr.M.Velusamy https://hcservices.ecourts.gov.in/hcservices/ ORDER (Order of the court was made by P.K.MISRA, J.) Heard Mr.Ramesh, learned counsel for the petitioner and Mr.Vijay Shankar, learned counsel for the respondent. 2. The question relates to the validity of the order of suspension and as to how the period of suspension would be treated where the person was reinstated. The order of suspension was passed on 16.9.1997 and it was revoked on 9.12.2002. Subsequently, the employee has retired on 31.12.2006. The suspension was on account of the alleged involvement of the petitioner in a criminal case under the Prevention of Corruption Act. It is not in dispute that such criminal case is pending before the Special Court at Bangalore. The Department had also initiated departmental proceedings. Subsequently, the petitioner had challenged such departmental proceedings on the ground that it had not been initiated by the competent authority. Such contention was accepted by the Tribunal by order dated 17.11.2006 and the charge memo in the departmental proceedings was quashed. However, it is not in dispute that subsequently, a fresh departmental proceedings has been initiated. 3. Even though the order of suspension was passed in the year 1997 and continued till 2002, the petitioner had not challenged it immediately. The petitioner has now filed O.A.No.475 of 2007 challenging the order of suspension on the ground that it was issued by an incompetent authority. Alternatively, the petitioner has prayed that after the reinstatement of the petitioner and after his retirement from service, there is no reason as to why the period of suspension should not be regularised as on duty. The Tribunal has dismissed the Original Application on the finding that the suspension order which has been passed long back cannot be challenged after long lapse of time. So far as the question as to how the period should be treated, the Tribunal has observed that since the criminal case is pending, the question as to how the period would be treated can be considered only after the conclusion of the proceedings. Such order of the Tribunal is in question in the present writ petition. 4. Learned counsel for the petitioner has placed strong reliance on the Division Bench decision of the Karnataka High Court reported in STATE OF KARNATAKA v. R.S.NAIK (1983(3) SLR 285) and has contended that even though the suspension was on account of the alleged involvement in criminal case, since the petitioner was subsequently reinstated and thereafter was allowed to retire, the period of suspension must be treated as on duty. https://hcservices.ecourts.gov.in/hcservices/ 5. We have carefully gone through the Division Bench decision of the Karnataka High Court. The Division Bench has upheld the order passed by the Single Judge. The suspension order in the said case was on the basis of Rule 101 of Karnataka Civil Services Rules, which has been extracted in the same judgment to the following effect:- "A Government servant against whom proceedings have been taken either for his rest debt or on a Criminal charge or who is detained under any law providing for preventive detention should be considered as under suspension for any periods during which he is detained in custody or is under going imprisonment and not allowed to draw any pay and allowances other than any subsistence allowance that may be granted in accordance with the principle laid down in R.98 for such periods until the termination of the proceedings taken against him or until he is released from detention and allowed to rejoin duty, as the case may be. An adjustment of his allowances for such periods should thereafter be made according to the circumstances of the case, the full amount being given only in the event of the officer being acquitted of the blame of (if the proceedings taken against him were for his arrest for debt) of its being proved that the officers liability arose from circumstances beyond his control. In cases where the arrest is for detention under a law providing for preventive detention the full amount of allowances, for the period of detention, shall be given only when such detention is held by any competent authority to be unjustified." (Emphasis Supplied) 6. The only conclusion of the Bench decision appears to be that once the relationship of Master and Servant was snapped on account of retirement of the person concerned, there is no other alternative than to treat the period of suspension as on regular duty. We do not think that such an interpretation can be imported in the facts and circumstances of the present case. It may be incidentally indicated that the Bench had referred to an unreported decision of the Supreme Court in State of Assam v. Rajagopala Chari (Civil Appeal Nos.1561 and 1562 of 1966) disposed of on 6.10.1967). In the said matter, the concerned employee, even though initially convicted in the criminal case, had ultimately been acquitted. Inspite of such acquittal, the State Government had passed an order giving only 50% of the pay for the period. Under such circumstances, it was observed that since there was acquittal in the criminal case, the period of suspension should have been treated as on duty. https://hcservices.ecourts.gov.in/hcservices/ 7. However, the Division Bench of the Karnataka High Court, without going into such niceties of the matter, had simply passed an order that after retirement there was no other alternative except to treat the entire period as 'on duty'. We are not able to accept such a decision of the Karnataka High Court particularly keeping in view the provisions contained in FR 54-B which is admittedly applicable as the petitioner is a Central Government employee. FR 54-B(6) reads as follows:- "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." 8. In view of the above provision, there cannot be any doubt that the question as to how the period would be treated would, obviously, depend upon the result of the criminal case. It has to be noticed that in the present case, the order of suspension was not passed in contemplation of a departmental proceedings, but on account of the alleged involvement of a criminal case and therefore, keeping in view FR 54-B(6), the matter has to be finalised only after the conclusion of the criminal case. 9. In such view of the matter, we do not find any scope to interfere with the order passed by the Tribunal. The writ petition is, accordingly, dismissed. It is made clear that any observation made by the Tribunal or by us should not be construed as expressing any opinion on the merits in the criminal case which has to be decided in accordance with law and on the basis of the materials on record. Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. ssk. https://hcservices.ecourts.gov.in/hcservices/ To 1. The Chairman, Central Board of Trustees, rep by the Secretary/ Central Provident Fund Organisation, Bhavishyanidhi Bhawan, Bhikaji Cama Place, New Delhi 110 066. 2. The Regional PF Commissioner, Employees' Provident Fund Organisation, Regional Office, Royapettah, Chennai 600 014. 3. The Registrar, Central Administrative Tribunal, Chennai Bench, High Court Buildings, Chennai 600 104. + 1 CC To Mr.M.Veluswami, Advocate SR NO.38799 + 1 CC To Mr.K.M.Ramesh, Advocate SR NO.38261 W.P.No.16755/2008 PUR {CO} TP/10.9.08 https://hcservices.ecourts.gov.in/hcservices/