1 (?.-•" <?. ^j< ^M^ ^f^y ^) ^"-.* ^y. ^ ^' ^~ IN THE HON'BLE HIGH COURTOF CHHATTISGARH AT BILASPUR W.P.(S)NO. (^,'^-?,^ /2010 PETITIONER Resham Lal S/o Late Shri C.Raman, Aged about - 60 years, R/o Village and Post - Hathband, Tahsil - Simga, Distt. Raipur-(C.G.) VERSUS RESPONDENT / DivisionalSecurity Commissioner Railway Protection Force, South East Central Railway, Raipur- (C.G.) WRIT PETITION UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA JCa, s? 1 ^F< HTGH CQURT OF CHHATTISGARH : BIL.ASPUR WRITPETITION (SLNa3734 OF 2010 PETITIONER Reshan-i Lal : • RESRONDENT'S ...Versus . Divisional^ Seeurity Commissioner Railway Prefection Foree Post for pronouricement of the orders on the 2^ dav of February, 2011 Sd/- SatisUK.Agnihotri 7 Judge HIGHeOURTOFCHHATTISGARH:BILASPUR WRITPETITION(S) N0.3734 OF 2010 PETITIONER Resham Lal RESPONDENTS Vereus . : ' Divisional Security Commissioner Railway Protection Force (Writpefifions uTiderArticle226 ofthe Constitution oflndia) Single Beileh : Hon'bleShri SatishK. Agnihotri, J. , Present:- -Shri Stinil Otwani, Advocat&for tKe.petitioner; . Ms; NaashinsiAli, Ad'vbcateTorthe respondenf. .w' :^'. ..1 ::/:--^.^ :: :1 (Deliveredonfhis_^_yayofFebruary,2p11) 1. By this pe'tjtion.^the petitioner seeks t6 challenge fhe legality and validity of 'tlie. Order dated 27-08-200B (AnneXui®'P/1) passed by the Divisional Seeurity Commissioher, RPF/SEGR/ Raipur, The petitioner further seeks a direction t6 the respondents tct pay full salary and allowarices for the period from 28-06-2005 to 26-03-2008; • .• '': :\ •' ' - . ; ' . .: ; ';;...:.;.::' ..: •.", 2. The indisputable fat^s, in nutshell^as projei^ey^by the petitionei-, are that the petitioner was initially appointed on the post of constable in the :resp0hdent department on 20-04-1975. The petitipner retired from the service on attaining the age of superannuatioTn on-30-09-2008. During the coyFseof?hisservice,a crirriinal case'was registered agairtstthe pefitioneftirl't)'le.ygai-2005 TorGommiSsion^ofanoffencepuriishableuriderSeGti6ns147,^48, 149, 307 & 302 ofthe Indian Penal Code(forshort"thelRC").Gn the basis of registration of and offence, the petitioner was plaGed undersuspensionbyorderdated 28-06-2005; . : j '/ ^».y According to the petitioner, after completion of trial which resulted into acquittal of the petitioner from the criminal charges leveled againsthimbyjudgmehtdated: 13-3-2008, thesuspensionorder was reydked by; order dated 05-05-2008 (Annexure P/2).. After revocafion'of the suspension,,(he petitioner made an application before theauthority concerned on 04-08-2008 (Annexure P/3) for grantoffullpaymentoftheperiod ofsuspension i.e. from July2005 to April 2008^ ThereafteF, the authority conGerned by brder dated' 27-08-2008 (Anneiture P/iyinfbrnTed the pefitjcirier thatthe period freim'28-Q -20QS^t6,26-03-2008waS-treatedas^susp®nsionandthfe^ restfronT;27-03-Z088to04-OS-20108wsistreated^as'dutyperiodof the petitioner and, as such, the full payment as claimed by tHe pefitionerwas riotrnade. Thus, thispetition. ' ^ Shri Otwani; learrred counsel for the petitioner, would submit thaf' theirriipugnedbrderisillegalandarbitrary,asin:the 6vent.bf acquittal frerncrirninal case, the petitioner is entitled'to full pay^OT allowances. Though ;the petitioher was placed under suspension; no departmerrt ehquiry wsis initiated against him and.affer acquittal from the trial Court, the suspensibn order was revdl<ed.,TI"]eref6r6; fhe petitioneris entitled fo Tull payment of salary during'thie.period' of susp®rision.,:;The irnpugned; order has laeen passed^ in ^a meehanical ^manner without assigning sM reasons.-"'. .^.,.:. ^ . .-•:,::.' • :. ' •• ^,' ;. ' • •:./. :••,," On the other hand, Ms. Naushina Ali, learnsd c6unsel for the respondent, w&uld submitthat during the-period pf.susperision, the petitioner was. paid subsistence atlowance as per Rule'S ofth&^ Raih(vay^Servahts'(Disi3iplirie& Appeal) Rules, 'l'968v(forishort."the, '/I Rules, 1968"). The representation made bythe petitionerhas been rejeGtedbytheGompetentauthorityonlyafterapprecjatingthefacts and circumstancesof thecase, inits true perspective. • 6. Ms. Naushina'Ali would further Submit that the petitiCTepwitho^^^ avaiting the alterhative remedy, againsf the impyghed rejection order passed by the Divisional SeGurity Cornmissioner, has straic(htaway approached this Court that too after delay Of two yearsfff)m/fhBclate^hisretireiTieritwithoutexplain •anS del^^ ^he peWwe^w^ ^7-08-2008 (Anne<ureP/1).Thug,1he^fJtioner"m entitled to any relief from fhis Court and the petition msiy be. dismissed. 7. I'have heard leamed counsel appearing for ttte parties,^^^^ the pleadings aflidtheclpCLimentsappenclecjlhsretcf.. F ' ': 8. . UndeFthe prdvisions^of Rule 5 (1) (c) offhe RLt]es,^1.968 a Railway servant rriay be placed under suspension, where a case against him in'respect of.any crimioal "offence, :is under invesfigatiQn, inqufry:or;trial. • • •• : ' ''; ••. ':: 9. On arrest of the petitiorier in Criminal case vide ^ No,85/37/&5 .clated 28-6-2005 :the pefifioner was 'placed undei- suspenision. Thereafter, fhe petitioner was acquitted. ih a crir'hinal' friatbyjuclgmentandorderdated 13-3-2008. Thus,fciFtheperiod of suspension no paymeht was rnade arid the i'eiTiaining perioa i.e. from 27-3-2008 to 4-5-2008 wa&ti-eatedason cluly^forpayment. - 10. Sub-rules (3) & <8) of Rule 2044-B (F.R.54-B)' Rule 1345 RIT 1987ed ofth©Rules,'1968provide forexercjseofeliscretibnbytlie' !( !1(. .•,,•.(_ 11 12. authoritycompetentihrespectofpayment offullpay&ailowanees, fortheperiod ofsuspension, Sub-rules (3) & (8) read'as under: "(3) Where the authority competent to order re-ihsfatement is of the opinion that the suspehsion was wholly unjustifjed,' , the Railway servant ; sball,f — , , , • sutiject. to th& provisions of st.ib-rule -(8); be paiff fliie full pay and allowances f6 whicft he^would have beeri entitfed, had he not .beensuspended. . ' . Providecl fhatwHeresuchauthorityis of the opinion that the termination ofthe prpceedings instituted against the Railway . servaht had been delayed due to reasdns. ' direetly attributable to.fhe Railwayservantit •.may^iafter. giving^hirn 'an;'o]3portunify,to::,^ mak&;.His ,representation .withrn fr&m the daite on whieh the communication in 'this regard is served, on hirh and. after considering, .the tepresentation if any sybmitted by hitn, direct, for reasons to be •; recordedjn writing that the Railway servant shall be paid for the period of such.clelay . only sueh amouht (nof being tfie whol& Of such pay and allowances) as it may ^ determine.". . ' ; . •: '; 1 ' "(8) The amount determined under the proviso to sub-rule (3) or uhdersub-rule (5) shall not be less than fl-ie subsistehce ^ , allowance anci other allowanGes^admissible . •uhder, Rule "•2043, (F.R. 53). 434Z,;;l6f'^^ 1987ed,^: -. '..;' • '; •1 ..-^ Reliance of the pgtifioner upon the decisidn of fheSupFeme Gourt jn Umesh ChsnSra Misra v. Un^ relevant to the facts of the present case, as in that case the\ question was what shoyld be the subsistence allowance during th® period-ofsuspehsion.', • • \ •:•• :::'••••.''•••'^ The Supreme:Cou in ftte/7agfen?enfo?'Rese/ve'5an/co?/ffcffa,.A/ew^ De^/V.S/^a/SmgftPaneha/^obServed^surider:^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^ .' 1993Supp(2)SCG210 2 (1994) 1 SGC, 541 i^s^^^^?^ - 13. "15..., In such circumstances, when he is treated as being u nder suspension during the said period, he is entifled to sybsistenceallowance. However, the subsistence allowance paid to him is liafcile to be adjusted against his pay and allbwances ifat all he is fteld to be entitled - ^tp, ^•them, by the competent auWority..): The • . :/, cornpefent authority while •.deciding whether an 'employeewho is suspei-ided in suoh circumstances is entitled to 1-iis pay , and.allowances ornotand to what extent, if . ;. ;any, and.whether the period is to be trgated as ori duty or on leave, has to take into consideratiorTtheeircumstanGesof Sach case..' It is^anly if such :emplQyee:is aequitted df'all bleim©^and^isIreated iby\the . cbmpetent'auth@rityasl^ing-on\dutyduring,,^^^^^^^^ the period, /of ;' suspension' thaf:, such : . / employee. is enlitled to full. pay and allowances for the said period.. In f other words, the RegulatiQns vest ttie power exGlusively in the:Bank to treat the'fpenod of such suspension on duty or on^leave pr otherwise. The power thus vested , ^canrtof^be validly.ohallenged; During' ,this ' period, •the employee renders no work. •He ' ; .is absent for reasons of ^.hife: • bwn . involvement in the rnisconduet and the Bank is in no way responsible fQrkegpirtg him away from his duties. The;'. Bahk,^ .therefore, cannot toe saddled^^^^^ liability to pay bim his salary •;'ah<3 allowances for the period. That will ^be . against the pTineipje of 'no work, no; pay', , and positively inequitable to those who have to work ahd earn their pay: AS| it is, • ^ ; even during such period, the erhployee earns sulteistence allciwanee by virtue'tSf the^RegulatiOns. Ih the Gircumstances, the Bahk's power inthatbehalfis unassailable." In Ranchhdcfji 'Chaturii Tfrakore v.: Superiniencfenh Erigineer, Gujarat Ele^ncity Board, HimmafnagarfGuJara^ SuprenrieCourtobseryed.a&under:, ; ';: '' ^': • • :' "3... .The^ question 6f back wages would be considered only .if • the •: respondents have taken actien ;by^way :of ,• (1996)11 SCC.603 ^'fcl^ °:6tal£«<' disciplinary proceeding and the action was found to be unsustainable in law and he was unlawfully prevented from dischargihg the duties. Ih that context, his conduct becomes relevant. Each case requires to ,be;Gonsidered initsown backdrops.In this , case,. since the petitioner had involved himself in a crime, though he was later .._ : acquitted, he had disabled tiimself ftom rendering the service on accounf of conviction and incareeraiion in :jail. Under these .cirGumstances, the petitioner is not entided 1:a payment of bacK wages." 14. \n Unicm^of'lnidisfandOthers^JaipalSihgh^,^^ observed-asunder: : ; ••^^^^ • , •' • : ^ '"3.....0n gciing through (Hesame, we areinrespectfulagreementwiththeview taken in 1996 (11) SCC 603 (supra). If proseeution, which ultimately resulted in aGquittal pf the person coneerned was ,at • :the behest or;bydepartmenfitself,^perha|:is " ^ different CQnsiderationsimSy. arise-: 'Qnithe /.•^ otherhahd,if:as'a^citizen'the.ernploye&sra.;:^^^^'^ ^public servant got'ihvolved 4n':^.CFiminal '^ ^) • case and if:after initial conviction by theirial . court, he gets acquittal on', .appeal subsequently, thedepartment canntit'in any manner be found faulf with for having kept him ouf of service, since the law &bliges, a person convicted of an offeriGe to be so kept .out and ,not ,fo be . retained^ in ^ . ' service...'." : .' • '•: ..; v:..'- ,•',. -': .:: 15. In fhe facts 6f .the^present ease as.aforestatedt il^SiirKJispi®^ that thie petitiorier was placed under st.ispensiofTcin aCGount of. criminal case for commission of serious offences punishable under Secfions 147, 148, 149, 307 & 302 of the IPC,:thus, (he same was: not at th®instanoe of the department.; Secon<:lly,.tW®suspensiow was not^on.ae unt of departmental'enquiiy^ricl^ aufhority Gdncerned \ias rightly hot freatSd e;petifi6ner as on ;duty;i for payment 6f full pay & aliowanees during tt'ie^period of pendency '/ 2003AIRSCW663S 1^-^, ^ 11! S-'Si. ^..^-. ; ^ ^lt^ • f' ''S»as'..a ''^-.. ' ~y .-.^ ^sai'.sfiS1'" Gowri ofcriminal case. On perusal ofthe papers, it appears that the authority concerned has exercised its discrefion judiciously and there is no allegation also assuch by the petitioner. 16. Applyirig the well settled principles of law and for the reasons mentioned hereinabove, the writ petition, being bereft of merit, is liable to be and is hereby dismissed. 17. There.shall benoorderastocosts. y^^ judge