IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP (T) No. 7661 of 2008. Decided on: 2.6.2009. ___________________________________________________________ Shri Chandu Ram … Petitioner. Versus The State of H.P. and others. … Respondents. ___________________________________________________________ Coram: Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 Yes. For the Petitioner : Mr. Dilip Sharma, Advocate. For the Respondents : Mr. R.K. Sharma, Sr. Addl. A.G. with Mr. Vikas Rathore, Dy.A.G. ______________________________________________________ Rajiv Sharma, Judge (Oral). The petitioner was appointed as Forest Guard on 12.11.1962. A corruption case No. 23-S/7 of 1989 was instituted on 6.12.1989/3.11.1990 in the Court of Special Judge (Forests), Shimla. He was named as accused No. 14. He was acquitted by the learned Special Judge vide judgment delivered on 17.6.2000. The petitioner had retired on 31.10.2000. He was also eligible to be considered for promotion as Deputy Ranger in the year 1992. The case of the petitioner was considered, however, the recommendations were kept in a sealed cover. The petitioner despite his acquittal by the learned Special Judge has not been released his gratuity. The sealed 1 Whether reporters of the local papers may be allowed to see the judgment? Yes. 2 cover has also not been opened by the respondents after his acquittal. Mr. Dilip Sharma has strenuously argued that after the acquittal of the petitioner, he was entitled to get his gratuity with interest as per Rule 68 of the CCS (Pension) Rules. He then contended that once the petitioner has been acquitted, the sealed cover was to be opened and in case the name of his client has been recommended, he is bound to be promoted with effect from the due date i.e. 10.2.1992 as Deputy Ranger. The learned Senior Additional Advocate General has argued that neither the gratuity could be released to the petitioner nor sealed cover could be opened since after the acquittal, the State has filed an appeal which is pending before this Court. I have heard the parties and perused the record carefully. The petitioner was eligible for promotion to the post of Deputy Ranger in the year 1992. His juniors were promoted with effect from 10.2.1992. His case was considered by the Departmental Promotion Committee but the recommendations were kept in a sealed cover. The sealed cover procedure is only resorted to when a charge-sheet has been issued by way of departmental proceedings or challan has been put up in the competent court of law. In the present case, the petitioner has been acquitted by the learned trial Court on 17.6.2000. Accordingly, the sealed cover is required to be opened and in case the petitioner has been recommended by the Departmental Promotion Committee for 3 promotion to the post of Deputy Ranger, necessary orders are required to be issued promoting him from 10.2.1992. The petitioner’s gratuity has also not been released only on the ground that though the petitioner was acquitted by the learned trial Court, however, an appeal was preferred by the State in this Court. This cannot be a cogent reason to deprive a person of his gratuity. A Division Bench of this Court in Shri Surinder Kumar versus State of Himachal Pradesh and another, 1985 (3) SLR 254 has held that preferment of acquittal appeals cannot be regarded as the continuance of the trial. Their Lordships have further held that initial presumption of innocence must, therefore, be regarded as having been doubly reinforced by orders of acquittal passed in favour of the petitioner. Their Lordships have held as under: “Sub rule (5) provides that an order of suspension made or deemed to have been under the Rule shall continue to remain in force until it is modified or revoked by the authority competent to do so. However, where a Government servant is suspended or is deemed to have been suspended (whether in connection with any disciplinary proceeding or otherwise) and any other disciplinary proceeding is commenced against him during the continuance of that suspension, the authority competent to place him under suspension may, for reason to be recorded by him in writing, direct that the Government servant shall continue to be under suspension until the termination of all or any such proceedings. An order of suspension made or deemed to have been made under the Rule may 4 at any time be modified or revoked by the authority to which that authority is subordinate. The impugned order of suspension was apparently made in order to give effect to the fiction created by sub rule (2) of Rule 10. At the point of time when the order was made, the conditions for the exercise of such power may be presumed to have been duly satisfied. The question, however, is whether on the facts and in the circumstances of the case, the continued operation of the order of suspension is legal, proper and reasonably justified in the eye of law. It may be recalled in this connection that as a result of the lodgement of the first information, the petitioner was detained in custody and that after investigation, he was put up for trial in two cases before a criminal court. The trial court convicted him but the appellate court acquitted him in both the cases. The orders of acquittal are undoubtedly under challenge in the High Court. The preferment of acquittal appeals cannot however, be regarded as the continuance of the trial. The trials have concluded with the judgment of acquittal (see State v. B.C. Dwivedi, 1983 (2) XXIV GLR 1315). The initial presumption of innocence must, therefore, be regarded as having been doubly reinforced by orders of acquittal passed in favour of the petitioner. Under such circumstances, the continued operation of the order of suspension as from the date of acquittal cannot be regarded as reasonable, fair and just. Merely because the petitioner was, at one point of time, detained in custody for a period exceeding forty-eight hours, he cannot be kept under suspension perpetually, especially, when the allegations on the basis of which he was detained and which ultimately became the subject matter of two trials before the criminal court, are found by a court of competent jurisdiction to have been 5 not established beyond reasonable doubt. Under the circumstances, in our opinion, on a rational and just view of the facts and circumstances of the case, the petitioner is required to be re-instated in service on and with effect from the date of the orders of acquittal. If the acquittal appeals are allowed and the petitioner is convicted, there is nothing to prevent the competent authority from the dealing with the petitioner in accordance with law. If, on the other hand, the acquittal appeals fail and a departmental inquiry, if any, is ordered to be instituted on the same charges, it would not be fair and just and reasonable to suspend the petitioner once again in view of the initial presumption of innocence having been reinforced twice over.” Accordingly, in view of the observations made hereinabove, the writ petition is allowed. The respondents are directed to release the gratuity to the petitioner with interest as per Rule 68 of the CCS (Pension) Rules and the instructions appended thereto. The respondents are further directed to open the sealed cover and in case the petitioner’s name has been recommended by the Departmental Promotion Committee for promotion to the post of Deputy Ranger, necessary consequential orders shall be passed. It is clarified that in the eventuality of the petitioner being promoted, it would relate back to 10.2.1992 when his juniors were promoted. He will also be entitled to all the consequential benefits. It is also clarified that the principle of “no work, no pay” would not be applicable in the present case as per the law laid down by their Lordships of the Hon’ble Supreme Court in union of India and others versus K.V. Jankiraman and others, 1991 (4) Supreme 6 Court Cases 109. The directions shall be complied within a period of six weeks from today. No costs. (Rajiv Sharma), J. June 2, 2009. (cr)