IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 17.03.2011 Coram: THE HONOURABLE MR.JUSTICE V.DHANAPALAN Writ Petition No.1043 of 2010 G.Janarthanan ... Petitioner Vs 1. Deputy Inspector General of Police, Villupuram Range, Villupuram. 2. Superintendent of Police, District Police Office, Villupuram. ... Respondents Petition filed under Article 226 of the Constitution of India seeking for the issuance of a writ of Mandamus directing the respondent to treat the period of suspension of the petitioner from 02.06.2004 to 26.07.2009 as duty for all purposes in accordance with Fundamental Rules 54 Ruling-9 within a timeframe. For Petitioner .. Mrs.G.Bala and Daisy For Respondents .. Mr.S.Gopinathan, Addl.Govt. Pleader (W) O R D E R The petitioner seeks for a mandamus to direct the respondent to treat the period of suspension of the petitioner from 02.06.2004 to 26.07.2009 as duty for all purposes in accordance with Fundamental Rules 54 Ruling-9 within a timeframe. 2. The facts leading to the filing of this Writ Petition are as follows:- (i) The petitioner joined in the Police Service as directly recruited Sub-Inspector of Police on 01.03.1996 and he was due for promotion as Inspector of Police in the year 2005 but he was not promoted as Inspector of Police on the ground that a criminal case was registered against him by the Vigilance and Anti-Corruption Cuddalore Unit in Crime No. 9/2004 under Section 7 and 13(2) r/w 13 (1)(d) of Prevention of Corruption Act 1988. He has received about 10 https://hcservices.ecourts.gov.in/hcservices/ awards for his efficient service. The petitioner was placed under suspension on 03.06.2004 by the first respondent and he was kept under suspension for more than 5 years on account of pending criminal case. After investigation, a charge sheet was filed before the Chief Judicial Magistrate, Villupuram and the case was taken on file and after a detailed trial, the petitioner was acquitted from the criminal case by the Chief Judicial Magistrate, Villupuram on 31.12.2008, holding that the offence against the petitioner was not proved and the judgment was rendered on merits. (ii) The petitioner submits that after his acquittal from the criminal case, he appeared before the first respondent and prayed for reinstatement into service. On 18.07.2009, the first respondent has passed an order reinstating the petitioner into service and based on the above order, the second respondent in his order dated 23.07.2009 reinstated the petitioner into service. On 3.11.2009 the second respondent had issued a Show Cause Notice, calling for explanation from the petitioner as to why the period of suspension from 02.06.2004 to 26.07.2009 should not be treated as leave including extraordinary leave. Primarily, the second respondent has no jurisdiction to issue such a show cause notice as he is not the disciplinary authority for the petitioner. Further, the show cause notice has been issued totally in violation of Ruling 9 of Fundamental Rule 54. As per the above statutory provision, the Government servant who has been acquitted by the competent Court of Law is not only entitled for reinstatement but also entitled for all consequential service and monetary benefits as if he had continued in service, without any break. 3. It is his further submission that stating all the above reasons, he had submitted his explanation to the respondents on 9.11.2009 and 23.11.2009, and as there was no order with regard to the settlement of the period of suspension and it is in violation of statutory rules, the petitioner left with no other remedy except to approach this Court, has filed this writ petition for the issuance of writ of mandamus for a direction to the respondents to treat the period of suspension as duty in accordance with Fundamental Rules. 4. The 2nd respondent filed counter affidavit interalia contending that the petitioner was placed under suspension by the first respondent vide proceedings dated 3.6.2004 and he was under suspension from 2.6.2004 to 26.7.2009. He was not eligible to be considered for promotion as Inspector of Police in the year 2005 as the case registered against him by the Vigilance and Anti-Corruption Cuddalore Unit in Crime No. 9/2004 under Section 7 and 13(2) r/w 13 (1)(d) of Prevention of Corruption Act 1988 was pending against him. The petitioner was kept under suspension till the disposal of the criminal case against him. In the criminal case, he was acquitted under Section 248(1) of Cr.P.C. by the Special Judge/Chief Judicial Magistrate, Villupuram in S.C.No.4/2005 dated 31.12.2008. https://hcservices.ecourts.gov.in/hcservices/ Consequently, the petitioner was released from suspension through proceedings dated 18.7.09 by the first respondent and by proceedings in D.O.817/09 dated 23.7.09 of the second respondent, he was reinstated into service. 4(a). It is also stated in the counter affidavit that in G.O. (2D) No.246 Home (Pol IV) Dept. dated 7.7.05, the criminal and departmental action against the petitioner was ordered by the Government. The petitioner was acquitted in the criminal case against him on 31.12.2008 by the Special Judge/Chief Judicial Magistrate, Villupuram. In the departmental action against him in PR.21/06 u/r 3(b), he was awarded the punishment of "postponement of increment for 2 years which shall operate to postpone his future increments". As the criminal and departmental action against him has been completed, he was issued with a show cause notice by the second respondent under the orders of the first respondent, for settlement of suspension period spent by the petitioner. As against the order of acquittal of the petitioner in the criminal case, challenge is made by the Vigilance and Anti-Corruption Unit by filing an appeal before this Court on 27.7.2009 and the same is pending. The show cause notice was issued as a routine procedure for settlement of his suspension period. The petitioner has submitted his explanation on 9.11.2009 and no orders have been passed with regard to settlement of his suspension period and it is kept pending till the outcome of the appeal filed against the acquittal of the petitioner in the criminal Case. The petitioner was awarded a punishment of "postponement of increment for 2 years which shall operate to postpone his future increment" on 18.7.2009 in PR.21/2006 and on his appeal the punishment was modified into "postponement of increment for a period of one year which shall not operate to postpone his future increments" by the Additional Director General of Police (L&O), in R.c.No.204904/Con.I (1)/05 dated 15.10.2009. The criminal case filed against him in Crime No.9/2004 by Vigilance and Anti-Corruption Unit, Cuddalore had ended in acquittal. But the appeal against the said acquittal is pending before this Court and hence further action on the settlement of suspension period spent by him from 2.6.2004 to 26.7.2009 is kept pending, awaiting the outcome of appeal made before this Court. Therefore, the petitioner is not entitled for the relief sought for at this stage. For the foregoing reasons, the 2nd respondent prayed for dismissal of this writ petition. 5. Heard the learned counsel for Mrs.G.Bala and Daisy, appearing for the petitioner and Mr.S.Gopinathan, learned Additional Government Pleader (Writs), for the respondents. 6. The learned counsel appearing for the petitioner would submit that it is mandatory on the part of the respondents to treat the period of suspension as duty for all purposes and he shall be paid full pay and allowances which he would have been entitled to, had he not been under suspension. As the petitioner was reinstated https://hcservices.ecourts.gov.in/hcservices/ into service in view of his honourable acquittal in a criminal case, his benefits cannot be kept pending because of the pendency of the appeal preferred by the respondents against the said order of acquittal, which could not operate against the claim of the petitioner for treating the period of suspension as duty. The learned counsel for the petitioner fairly submits that the appeal filed by the respondents is numbered as C.A.No.453 of 2009 and it is pending before this Court. Therefore, he prayed that the period of suspension from 2.6.2004 to 26.7.2009 may be treated as duty for all purposes. 7. Refuting the above contention, the learned Additional Government Pleader submits that acquittal of the petitioner in criminal case is now pending in Criminal Appeal and it is the continuation of cause of action and therefore, till a decision is taken in the appeal, it is not proper for the respondents to treat the period of suspension as duty. Even though the respondent has issued a show cause notice with regard to the settlement of suspension period and the petitioner has submitted his explanation, it is a routine procedure and at this point of time it cannot be granted till the outcome of the decision in the appeal preferred by the respondents. 8. A circumspection of the facts would reveal that the petitioner was recruited as Sub-Inspector of Police and joined in the respondents department on 1.3.1996 and there was a criminal case registered against him, based on which he was placed under suspension on 3.6.2004 and that suspension continued for 5 years. Thereafter, the criminal case instituted against the petitioner was taken on trial by the competent criminal court namely Special Judge/Chief Judicial Magistrate, Villupuram and the same ended in acquittal of the petitioner vide judgment dated 31.12.2008 and thereafter, the petitioner made a representation to the respondents on 18.7.2009 and subsequently the petitioner was reinstated into service on 23.7.2009 and in the meanwhile the second respondent had issued a show cause notice calling for explanation from the petitioner in respect of settlement of period of suspension as duty for which the petitioner questioned that there is no jurisdiction for the authority to issue such a show cause notice as he is not the disciplinary authority for the petitioner and it is in violation of Ruling 9 of Fundamental Rule 54. 9. It is the specific stand of the respondents that in G.O. (2D) No.246 Home (Pol IV) Department dated 7.7.05, criminal and departmental action against the petitioner was ordered by the Government. The petitioner was acquitted in the criminal case against him on 31.12.2008 by the criminal court, but in the departmental action against him in PR.21/06 u/r 3(b) he was awarded the punishment of "postponement of increment for 2 years which shall operate to postpone his future increments". As the criminal and https://hcservices.ecourts.gov.in/hcservices/ departmental action against him have been completed, he was issued with a show cause notice by the second respondent under the orders of the first respondent for settlement of suspension period spent by him. 10. The only objection in the counter of the second respondent is that Ruling 9 of FR 54 is applicable to the petitioner's case but according to the Rule, he becomes eligible to get the period of suspension spent by him as duty for all purposes notwithstanding any other subsequent development. But in this case, the order of acquittal by the Lower Court is challenged by the Vigilance and Anti- Corruption by filing an appeal before the High Court on 27.7.2009 and hence the matter is pending before the court and it is further stated that the show cause notice was issued as a routine procedure for settlement of his suspension period. The petitioner has submitted his explanation on 9.11.2009 and no orders have been passed with regard to settlement of his suspension period and it is kept pending till the outcome of the appeal filed against the acquittal of the petitioner in the criminal case. It is also stated that the petitioner was awarded a punishment of "postponement of increment for 2 years which shall operate to postpone his future increment" and on his appeal, the punishment was modified into "postponement of increment for a period of one year which shall not operate to postpone his future increments" by the Additional Director General of Police (L&O), vide proceedings dated 15.10.2009. Though the criminal case filed against him in Crime No.9/2004 by the Vigilance and Anti-Corruption, Cuddalore Unit ended in acquittal, the appeal against the order of acquittal is pending before this Court and hence further action on the settlement of suspension period spent by him from 2.6.2004 to 26.7.2009 is kept pending, awaiting the outcome of appeal made before this Court. 11. The relevant provision of law for consideration in this matter is Ruling 9 of Rule 54 of Fundamental Rules which provides as follows:- "9. Where a Government servant is:- (a) placed under suspension in view of the fact that a complaint against him of any criminal offence is under investigation or trial; or (b) dismissed or removed from service or compulsorily retired on the ground of conduct which has led to his conviction on a criminal charge and the Government servant is subsequently reinstated in service on his acquittal by the Court either on merits or on the ground that the charge has not been https://hcservices.ecourts.gov.in/hcservices/ proved against him or by giving benefit of doubt or on any other technical ground, or on the ground that he has been pardoned by the Court as he turned approver based on his judicial confession, he must be regarded as having been prevented from discharging his duties and the period of his absence including the period of suspension shall be treated as duty for all purposes and he shall be paid full pay and allowances which he would have been entitled to, had he not been under suspension, or dismissed or removed or compulsorily retired from service." 12. From the reading of the above provision, it is very clear that the period of suspension after the acquittal of the Government servant shall be treated as duty for all purposes notwithstanding any other subsequent development. Even if the matter is taken on appeal, the provision is not of any advantage to the respondents because of the pendency of the criminal appeal which would prevent them from settling the period of suspension. But the only objection raised by the respondent is that the appeal against the order of acquittal is pending before this Court and hence further action on the settlement of suspension period spent by him is kept pending, awaiting the outcome of appeal made before this Court. In the absence of any material to show that the pendency of the appeal would prevent the respondents from settling the period of suspension, it is not proper for the respondents to take such course of issuing show cause notice to proceed further by calling upon explanation from the petitioner. The action of the respondents is not warranted as there is no authority of law for them to proceed further and without due compliance of the provisions of law which contemplates that once there is acquittal by the criminal court, the Government servant is entitled for treating the period of suspension as duty for all purposes. 13. In view of the above circumstances, upon considering the provisions of law, I am of the clear opinion that the mandamus sought for by the petitioner is to be granted and the respondents are directed to consider the claim of the petitioner for treating the period of suspension from 2.6.2004 to 26.7.2009 as duty for all purposes in accordance with Ruling 9 of Fundamental Rules 54 and whatever the benefits accrued thereon shall be paid to the petitioner within a period of 8 weeks from the date of receipt of copy of this order. However, this order shall not prevent the respondents from proceeding further in the matter, if the criminal case ends in conviction or otherwise. https://hcservices.ecourts.gov.in/hcservices/ 14. With these directions, this writ petition is allowed. No costs. Sd/- Asst. Registrar //true copy// Sub Asst.Registrar gr. To 1. Deputy Inspector General of Police, Villupuram Range, Villupuram. 2. Superintendent of Police, District Police Office, Villupuram. 1 cc to M/s.G.Bala & Daisy, Advocate, Sr.No.19117 1 cc to Government Pleader, Sr.No.19610 W.P.NO.1043 of 2010 KJ {CO} TP/9.4.2011. https://hcservices.ecourts.gov.in/hcservices/