IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 08.01.2010 CORAM THE HONOURABLE MR.JUSTICE M.VENUGOPAL W.P.No.12424 of 2003 and W.M.P.No.690 of 2008 V.Arjunan ..Petitioner vs. 1. The Tamilnadu Civil Supplies Corporation Ltd., Rep. By its Senior Regional Manager, Cuddalore Region, Cuddalore 607 001. 2. The Tamil Nadu Civil Supplies Corporation Ltd., Rep. By its Chairman cum Managing Director, 42, Thambuswamy Road, Chennai 600 010. ..Respondents Writ Petition under Article 226 of The Constitution of India praying for the issuance of a writ of Certiorarified mandamus to call for the records relating to the proceedings Rc.No.L2/9024/97 dated 12.12.02 of the first respondent as confirmed by the second respondent's proceedings Na.Ka.No.G8/9882/2003 dated 29.1.2003, quash the same and consequently directing the respondents to treat the period of suspension of the petitioner from 5.11.1997 to 24.2.2000 as one of duty and pay all the consequential attendant benefits as if the petitioner was never suspended from service. For Petitioner : Mr.S.Venkataraman For Respondents : Mr.C.Selvaraj O R D E R The petitioner was working as a Watchman under the control of the first respondent/the Tamil Nadu Civil Supplies Corporation Ltd. He was arrested on 01.10.1997 by the Mangalampettai Police in connection with the offences under Sections 147, 148, 323, 324 and 307 for murder of a villager in a civil dispute and he figured as the https://hcservices.ecourts.gov.in/hcservices/ fourth accused in the said case. There were totally 10 accused. The petitioner was detained for more than 48 hours and later he was released on bail. The petitioner was suspended by the first respondent as per proceedings dated 05.11.1997 contemplating enquiry into grave charges under the service regulation. He challenged the order of suspension in W.P.No.16366 of 1998 and on 10.08.1999, this Court has passed orders holding that "the respondent who passed the order of suspension had not applied his mind as the order of suspension nowhere indicated that the petitioner was placed under suspension on a complaint against him for criminal offence under investigation or trial" and resultantly the order of suspension was found to be vitiated and consequentially the same was quashed granting liberty to the respondent to pass appropriate orders as deemed fit or circumstances warrants. The case was tried by the learned Additional Sessions Judge, Virudhachalam in C.C.No.71/2001 and after trial, he was acquitted by means of a Judgment dated 28.02.2002. 2. It is the stand of the petitioner that the first respondent by means of an order dated 13.08.1999 has modified the earlier order of suspension dated 05.11.1997 and made the suspension with retrospective effect invoking the provisions dealing with deemed suspension for having been detained for more than 48 hours in connection with the criminal case in Crime No.348/1997. Again the first respondent by means of proceedings dated 21.02.2000 reviewed the earlier order of suspension and restored the petitioner to duty and accordingly the petitioner joined duty on 06.03.2000. 3. The petitioner in this writ petition challenges the proceedings of the first respondent in Rc.No.L2/9024/97 dated 12.12.2002 as confirmed by the proceedings of the second respondent in Na.Ka No.G8/9882/2003 dated 29.01.2003 and to quash the same and also pray for issuance of consequential direction to be issued by this Court in directing the respondents to treat the period of his suspension from 05.11.1997 to 24.02.2000 as one of duty and pay all the consequential attendant benefits as if the petitioner was never suspended from service. 4. The learned counsel for the petitioner urges before this Court that one G.Mathivanan, Technical Helper, Modern Rice Mill, Neyveli was suspended from service on 14.10.1996 in connection with a private criminal case and later he was acquitted by the Court of Sessions, Cuddalore and the first respondent issued proceedings Rc No L2/11505/96 dated 9.2.2000 regularising the period of suspension and treating the entire period of suspension as one spent on duty but the same yardstick was not applied to the petitioner by the respondents and therefore there was discrimination. 5. The petitioner's plea to regularise the period of suspension from 05.11.1997 to 24.02.2000 and to pay him all the consequential https://hcservices.ecourts.gov.in/hcservices/ benefits was rejected by the first respondent in Rc.No.L2/9024/97 dated 12.12.2002 on the ground that he was not eligible to claim the relief in issue because he was suspended from service on a private criminal case not connected with the employment and the period of suspension was treated as unemployment. Later he preferred an appeal to the second respondent on 20.01.2003 but the second respondent rejected the plea of the petitioner by his proceedings in Na.Ka No.G8/9882/2003 dated 29.01.2003. 6. Expatiating his submissions, the learned counsel for the petitioner places reliance on the G.O.Ms.No.228 Personnel And Administrative Reforms Department dated 13.04.1989, wherein it is mentioned as follows: "In the said Fundamental Rules, in Rule 54, after ruling 8, the following ruling shall be added, namely:- 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 on compulsorily retired on the ground of conduct which has led to his conviction on a criminal charge and the Government is subsequently reinstated in service on his acquittal by the Court either on merits or on the ground that the charge has not been prayed against him or by giving benefit of doubt or on any other technical ground, be just 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." and contends that inasmuch as the petitioner having been acquitted by a Criminal Court in a criminal case, then his period of absence including the period of suspension will have to be treated as duty for practical purposes and he will have to be paid the full pay and allowances which he would have been entitled to, had not been under suspension or dismissed or removed or compulsorily retired from service. In short, the tenor and spirit of the said G.O. squarely applies to the petitioner and therefore this Court may grant the necessary benefits in the manner known to law. https://hcservices.ecourts.gov.in/hcservices/ 7. Per contra, the learned counsel for the respondents submits that the petitioner was working as a Packer in the Amutham Departmental Stores, Neyveli in Tamil Nadu Civil Supplies Corporation Limited and for his involvement in criminal offence, he was arrested and remanded to judicial custody for more than 48 hours in connection with attempt murder and a case was registered by the Mangalampet police in F.I.R.No.340 of 1997 in respect of the offences under Section 147, 148, 323, 324 and 307 I.P.C. and he was placed under suspension by means of the proceedings of the first respondent in No.L2/3029/97 dated 12.12.2002 and he was remanded to the judicial custody for more than 48 hours and later the petitioner was restored to duty on 25.02.2000 by means of the department review of the earlier order of suspension since a view was taken to avoid unnecessary payment of salary to the suspended petitioner without utilising the services and as a matter of fact, the petitioner was acquitted in the criminal case 71/2001 by the learned Additional Sessions Judge, Virudhachalam on 28.02.2002 merely on the ground that the prosecution failed to prove the case against the petitioner beyond the reasonable doubt and that the acquittal was not an honourable one. 8. Advancing his arguments further, the learned counsel for the respondents urges that the period of suspension of the petitioner from 05.11.1997 to 24.02.2007 was treated as unemployment inasmuch as the petitioner had not rendered any work and further he was reinstated even prior to his acquittal and the petitioner was away from duty because of his own involvement in the misconduct for which the respondents were no way responsible for keeping the petitioner away from duty and in short, the respondents could not be fastened with a liability to pay the salary and other benefits to the petitioner for the period from 05.11.1997 to 24.02.2000 and the Principle of "No Work No Pay" squarely applies to the petitioner and consequentially the petitioner is not entitled to the relief prayed for by him in the writ petition. 9. The learned counsel for the respondents brings it to the notice of this Court the proceedings in Rc.No.G8/114005/03, Circular No.136/2003 dated 12.11.2003, issued by the second respondent/Chairman which runs as follows:- " Instances have come to notice that some employees, who have been placed under suspension for their criminal acts which fall outside the purview of the Corporation activities which are pending before the criminal courts are being paid subsistence allowance during the period of their suspension as per The Payment of Subsistence Allowance Act or as per the TNCSC Employees Service Regulations' 1989 as the case may be. https://hcservices.ecourts.gov.in/hcservices/ During the period of such suspension, pending finalisation of criminal case, the suspended employees cannot claim payment of subsistence allowance at enhanced rate as a matter of right as per the provisions contained in the service Regulations in force is applicable only for the suspension cases which fall in line with Corporation activities and also that the delay in finalisation of criminal case is not directly attributable to the Management. Even if the suspended employee is acquitted in the Criminal Court he can not automatically become entitled for the payment of full pay and allowance for the suspension period. The above aspect has been reiterated by the Hon'ble Supreme Court of India, in a case reported in AIR 1994 SC552 (Three judges Bench) wherein the Hon'ble Supreme Court of India in its judgment has pronounced that "during the period of suspension, the employee renders no work and he is absent for reasons of his own involvement in the misconduct and the employer is in no way responsible for keeping him away from his duties. Therefore, the employee cannot be saddled with the liability to pay him/his salary and allowance for that period of suspension. That will be against the principle of "No work, No Pay" and positively inequitable to those who have to work and earn their pay. In the light of the above said judgment, the SRMs/RMs are requested to ensure the following instructions without any deviation. a) The period of suspension, in connection with the involvement in a criminal case shall not be treated as "period on duty". b) in case of acquittal, the period of suspension shall be treated and regularised to that such of leaves to which that employee is eligible. c) In case of conviction of TNCSC Employees in criminal cases, the procedures laid down under Regulation No.5 Chapter V of the TNCSC Employees' Service Regulations, 1989 shall be followed and appropriate order has to be passed treating the period of suspension undergone by such Employees as a substantive punishment. https://hcservices.ecourts.gov.in/hcservices/ The receipt of this circular should be acknowledged by return of post." 10. From the above Circular of the second respondent dated 12.11.2003 mentioned supra in detail, it is seen that ' In case of acquittal the period of suspension will have to be treated and regularised to such of leaves to which the employee is eligible and therefore it is candidly crystal clear that the petitioner's period of suspension from 05.11.1997 to 24.02.2000 will have to be necessarily treated by the respondents to such kind of leave to which he is found eligible and the respondents cannot wriggle out of the Circular in Rc.No.G8/114005/03, Circular No.136/2003 dated 12.11.2003 issued by the second respondent, which admittedly they have to follow in true and spirit without any deviation whatsoever, in the considered opinion of this Court. 11. Be that as it may, as far as the present case is concerned even though the respondents have not acceded to the request of the petitioner to treat his period of suspension from 05.11.1997 to 24.02.2000 as duty period and rejected his request as seen from the proceedings of the first respondent/Senior Regional Manager in Na.Ka.No.L2/9024/97 dated 12.12.2002 and also the proceedings of the second respondent in Na.Ka.No.G8/9882/2003 dated 29.01.2003 inasmuch as the second respondent has issued a Circular in Rc.No.G8/114005/03, Circular No.136/2003 dated 12.11.2003, duly instructing the SRMS/RMS to the effect that in case of acquittal the period of suspension will have to be treated and regularised to such of leaves to which an employee is eligible, this Court is of the considered view that the petitioner is entitled to claim the benefit of the Circular and accordingly this Court orders that the period of suspension from 05.11.1997 to 24.02.2000 shall be treated and regularised by the respondents to such kind of leave to which the petitioner is found eligible and only to that extent, the petitioner is entitled to get the benefit but since the petitioner has not worked during the said period of suspension, the Common Law Principle "No Work No Pay" will squarely apply and as such he is not entitled for any salary during that period but the respondents shall not recover the subsistence allowance paid to the petitioner and since the respondents are directed to treat and regularise the suspension period of the petitioner to such leave to which he is entitled to, the respondents are directed to treat and consider the period from 5.11.1997 to 24.2.2000 towards the pensionary and other benefits to which the petitioner is entitled to as per Rules. The respondents are directed to implement the order of this Court passed in this writ petition within a period of eight weeks from the date of receipt of a copy of this order. https://hcservices.ecourts.gov.in/hcservices/ 12. With the above observations, the writ petition is disposed of without costs. The connected Miscellaneous petition is closed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar vri To 1. The Senior Regional Manager, Tamilnadu Civil Supplies Corporation Ltd., Cuddalore Region, Cuddalore 607 001. 2. The Chairman cum Managing Director, Tamil Nadu Civil Supplies Corporation Ltd., 42, Thambuswamy Road, Chennai 600 010. + 1 c.c. to Mr. C. Selvaraj, Advocate. S.R.No.1435. + 1 c.c. to Mr. S. Venkataraman, Advocate. S.R.No.1384. W.P.No.12424 of 2003 TEJ (CO) GSK 21.01.2010. https://hcservices.ecourts.gov.in/hcservices/