IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 23.04.2010 CORAM THE HONOURABLE MR.JUSTICE D.MURUGESAN AND THE HONOURABLE MR.JUSTICE M.SATHYANARAYANAN W.P.No.37403 of 2003 V.K.Varadharajan .. Petitioner -Vs- The District Judge, Nagapattinam, Nagapattinam District .. Respondent Petition under Article 226 of the Constitution of India, praying for the issue of a Writ of Certiorari, calling for records relating to the order of the respondent dated 28.10.2003 in D.P.No.3/2001 only in so far as it relates to 'treating the period of suspension as period of leave' and quash the same. For Petitioner :: Mr.K.Selvaraj For Respondent :: Mrs.Malarvizhi Udayakumar Special Government Pleader ORDER (Order of the Court was delivered by D.MURUGESAN, J.) While the petitioner was working as Assistant in the District Munsif Court, Nagapattinam, a criminal case was registered in Crime No.673 of 2001 on the file of the Inspector of Police, Velipalayam Police Station, Nagapattinam. Hence he was issued with an order of suspension dated 16.11.2001. In the order of suspension, it is stated that the same was made only in view of the criminal case registered against the petitioner. Thereafter, the petitioner was also issued with a charge memo dated 5.4.2002 for the alleged involvement in the criminal case and an enquiry was ordered. However, in the meantime, he was acquitted from the criminal case, which was taken cognizance by the Assistant Sessions Judge, Nagapattinam in S.C.No.17 of 2003, by the judgment dated 25.9.2003. In view of the above order, the District Judge, Nagapattinam in his proceedings dated 15.10.2003 revoked the order of suspension and he was given posting as well. Thereafter, the District Judge, by his further proceedings dated 28.10.2003, felt that no further action was needed in the departmental enquiry. Accordingly, he dropped all further proceedings. While doing so, he directed the period of suspension to be treated as leave to which the petitioner is entitled to. This writ petition questions that portion of the order of the learned District Judge, Nagapattinam in directing the period of suspension to be treated as leave. https://hcservices.ecourts.gov.in/hcservices/ 2. We have heard Mr.K.Selvaraj, learned counsel for the petitioner and Mrs.Malarvizhi Udayakumar, learned Special Government Pleader for the respondents. 3. According to the petitioner, not only the order of suspension but also the charge memo were issued solely on the basis that a criminal case was registered against the petitioner on the ground that the petitioner allegedly involved himself in the criminal case. Since he was acquitted from the criminal case, the suspension order was revoked and thereafter the entire disciplinary proceedings were also dropped. In these circumstances, he is not only entitled to reinstatement, but also would be entitled to the benefit of the period of suspension to be treated as on duty. 4. On the other hand, Mrs.Malarvizhi Udayakumar, learned Special Government Pleader for the respondent would submit that in terms of Ruling No.11 issued under Rule 54-B of the Fundamental Rules, the period of suspension can be treated as duty if there is a specific order or direction by a Court. Though the petitioner has been reinstated into service and the enquiry proceedings were dropped, in view of the said Ruling, the respondent is competent to direct the period of suspension to be treated as leave. 5. We have considered the above submissions. As far as the facts relating to the alleged involvement of the petitioner in a criminal case and his acquittal in that case is not disputed. Equally the order of suspension and the charge memo issued to the petitioner were only on the basis of that alleged involvement in a criminal case is also not disputed. The only question is that the petitioner, having been suspended, is not entitled for that period to be treated as on duty in the wake of Ruling No.11 issued under Rule 54-B(3) of the Fundamental Rules. 6. Fundamental Rule 54-B(3) reads as under:- "(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 the communication in this regard is served on him) and after considering the representation, if any, submitted by him, direct, for reason 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." https://hcservices.ecourts.gov.in/hcservices/ 7. Sub-rule (3) of Rule 54-B of the Fundamental Rules contemplates that whenever the authority competent to order reinstatement is of the opinion that the suspension was wholly unjustified, he may direct that the Government servant be paid the full pay and allowances to which he would have been entitled had he not been suspended. That direction would, of course, be subject to sub-rule (8), which reads that the payment of allowances under sub- rules (2), (3) or (5) shall be subject to all other conditions under which such allowances are admissible. As per sub-rule (3) of Rule 54-B, it appears that it is general that in all cases when reinstatement is ordered, when the authority competent is of the opinion that the suspension was wholly unjustified, the payment of full pay and allowances is automatic, except for the reasons provided by such authority in the wake of the proviso. In the given case, though the respondent had relied upon Rule 54-B(3) for directing the period of suspension to be treated as leave, there is no other reason adduced except the Ruling No.11 issued under the said fundamental rule. In view of the absence of other reasons except Ruling No.11, sub-rule (4) of Rule 54-B would come into operation, where it is stated that in a case falling under sub-rule (3), the period of suspension shall be treated as a period spent on duty for all purposes. 8. This takes us to the question as to whether the respondent would be justified in relying upon Ruling No.11 issued under Rule 54- B of the Fundamental Rules. Ruling No.11 reads as under:- "11. When a Government servant is placed under suspension where an enquiry into grave charges against him is pending or contemplated and a criminal proceedings are also instituted simultaneously in respect of the same charges and subsequently he is reinstated into service, the period of suspension shall be-- (i)treated as duty if there is a specific order or direction of a court of competent jurisdiction to this effect notwithstanding the fact that a penalty has been imposed in the departmental enquiry: (ii)regulated under F.R.54, only after the final order of the criminal court is delivered in which he is acquitted notwithstanding the fact that departmental enquiry has been finalised and a penalty has also been imposed upon him prior to the finalisation of criminal proceedings." 9. A careful reading of the said ruling shows that whenever a Government servant is placed under suspension where an enquiry into grave charges against him is pending or contemplated and a criminal proceedings are also instituted simultaneously in respect of the same charges and thereafter if he is reinstated into service, his period of suspension shall be treated as duty if there is a specific order or direction of a court of competent jurisdiction to that effect. It is the contention of the learned Special Government Pleader that only in case where there is a specific order or direction of a court of https://hcservices.ecourts.gov.in/hcservices/ competent jurisdiction to treat the period of suspension as duty, such order can be made by the authority and not otherwise. Her contention is that in the absence of any such order, it is the normal rule that the period of suspension should be treated only as leave. We are not inclined to accept that submission, as we cannot read the Ruling in that manner. Ruling No.11 applies in cases where some proceedings are initiated either questioning the order of suspension or the disciplinary proceedings or for that matter, some final order of penalty and the Court interferes with such orders or proceedings, ultimately, directs as to how the period of suspension should be treated. Only when such direction is issued, that would govern in spite of the fact that some penalty had been imposed in the departmental enquiry. However, when the order of suspension was revoked on the ground that it was not justified and consequently the Government servant is reinstated into service, Rule 54-B(3) would come into play, unless a specific reason is given under the proviso to the said rule. As we find Ruling No.11 issued under Rule 54-B cannot be pressed into service on the facts and circumstances of this case, certainly sub-rule (4) of Rule 54-B would come to the benefit of the petitioner, which states that he will be entitled for the period of suspension to be treated as on duty. We may also point out that the petitioner has been acquitted and the departmental proceedings have been dropped and he has been exonerated from the charges leaving nothing for the respondent to take action against the petitioner or to pass any order by relying Ruling No.11 issued under FR 54-B. 10. For all the above reasons, we are of the considered view that the direction of the learned District Judge in directing the period of suspension to be treated as leave cannot be sustained and has to be set aside. Accordingly, the writ petition is allowed and that portion of the order of the learned District Judge in directing the period of suspension to be treated as leave is set aside. It is further directed that the period of suspension shall be treated as on duty and the petitioner would be entitled to all the benefits for such period being treated as on duty. No costs. Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. ss To The District Judge,Nagapattinam,Nagapattinam District Copy to The Section Officer Legal Cell, High Court, Chennai. + 1 CC To Mr.K.Selvaraj, Advocate Sr 27241 + 1 cc to Govt., Pleader SR 27223 W.P.No.37403 of 2003 KS (CO) RH (4.5.10) https://hcservices.ecourts.gov.in/hcservices/