HIGH COURT OF MADHYA PRADESH JABALPUR (Writ Petition No.5944/2010) Prakash Kumar Sahu. …………………..Petitioner Versus Union of India and others ……………..Respondents ----------- Present: HONOURABLE SHRI JUSTICE SANJAY YADAV, HONOURABLE SHRI JUSTICE T.K. KAUSHAL ----------- Counsel for petitioner Shri Akash Choudhary, Advocate Counsel for respondents Shri S.A. Dharmadhikari, Advocate O R D E R (02-11-2011) The following order of the Court was delivered by: Sanjay Yadav, J :-Challenge in this petition is to an order passed by the Central passed by the Central Administrative Tribunal, Bench Jabalpur on 26.5.2009; whereby, Original Application preferred by petitioner against the order dated 3.7.2006 passed by respondents was dismissed. 2. By order dated 3.7.2006, the period from 30.7.1999 to 11.8.2000 during which the petitioner was under suspension because of the prosecution of the petitioner for a charge under Section 302 in alternate under Section 306 and 498 of the Indian Penal Code, has been treated as non duty and the period though not treated as break in service has not been counted for the purpose of pension. W.P. No. 5944/2010 3. Petitioner was employed under the respondent No. 3, Gun Carriage Factory, Jabalpur as Lower Division Clerk. For an offence initially registered under Section 498-A and 304 B of IPC the petitioner later on was tried for an offence under Section 302 in alternate under Section 306 and 498 IPC. Because of the arrest and the launching of prosecution, the petitioner was placed under suspension by order dated 28.8.1999. The petitioner was exonerated of the criminal charges and the order of acquittal wad recorded on 4.7.2000 by the Seventh Additional Sessions Judge, Jabalpur. The acquittal led to revocation of suspension. The petitioner in pursuance, resumed his duties on 12.8.2000. 4. The petitioner after hi reinstatement was subjected to a show cause notice regarding the period of suspension. After considering the representation respondents passed, an order on 3.7.2006 whereby the period from 30.7.1999 to 11.8.2000 was directed to be treated as non-duty without additional pay and allowance, except the subsistence allowance already paid and the period will not count for pension and other benefits but will not constitute as break in service. 5. The operative part of the order dated 3.7.2006 read thus: 5- vr% mi;qZDr leLr fcanqvksa dks en~nsutj j[krs gq, vc ;g vkns'k fn;k tkrk gS fd Jh izdk'k dqekj lkgw dh laiw.kZ fuyacukof/k ;Fkk fnukad 30-7-1999 ls 11-8-2000 dks ukWu M~;wVh (NON-DUTY) le>k tk;sA iwoZ esa vnk dh x;h fuokZg HkRrs dh jkf'k dks blh le; rd lhfer j[krs gq, mUgsa vU; dksbZ osru ;k HkRrs ns; ugha gksaxsA bl dkykof/k dks M~;wVh ij O;rhr u le>rs gq, bl isa'ku vkSj vU; ykHkksa gsrq ugha tksMk tk;sxk vkSj bl vof/k esa mudh lsok Hkh Hkax ugha ekuh tk;sxhA** Aggrieved, petitioner filed an original application before Central Administrative Tribunal. 2 W.P. No. 5944/2010 6. The Tribunal relying on the decisions by the Supreme Court in Ranchhodji Chaturji Thakore v. Supdt. Engineer, Gujarat Electricity Board [(1996) 11 SCC 603], Union of India v. Jaipal Singh [(2004) 1 SCC 121] and Baldev Singh v. Union of India [2006 SCC (L&S) 35] and Management of Reserve Bank of India v. Bhopal Singh Panchal (AIR 1994 SC 552), declined to interfere with the order dated 3.7.2006. 7. Aggrieved, petitioner is before us vide this petition under Article 227 of the Constitution of India. 8. Contentions put-forth by the learned counsel for the petitioner is that the Tribunal has erred in distinguishing the decisions in Uma Shankar Choubey v. Union of India and others : W.P. No. 1363/2001 decided on 14.3.2006 and Munnalal Mishra v. Union of India and others [2005 (3) MPHT 125]. It is also contended that the Tribunal failed to appreciate that the authority concerned had failed to exercise the discretion vested in it vide Fundamental Rule 54 B. 9. Respondents on their turn support the order dated 3.7.2006 as well as the order passed by the Tribunal. 10. The question as to how the period of suspension, where the suspension is because of the criminal prosecution, on its revocation after acquittal of the Government servant, is it to be treated, is governed by Rules, viz., Fundamental Rules 54 B. Sub-rules (1), (3) and (8) of FR 54 B are relevant in the context. These sub rules stipulate: “F.R. 54-B. (1) When a Government servant who has been suspended is re-instated or would have been so re-instated but for his retirement on superannuation while under suspension, the authority competent to order 3 W.P. No. 5944/2010 re-instatement shall consider and make specific order- (a) regarding the pay and allowances to be paid to the Government servant for the period of suspension ending with re-instatement or the date of his retirement on superannuation, as the case may be, and (b) whether or not the said period shall be treated as a period spent on duty. (3) Where the authority competent to order re- instatement 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 reason directly attributable to the Government servant it may, after giving him an opportunity to make his representation [within 60 days from the date on which the communication in this regard is served in him and after considering the representation, if any, submitted by him direct, for reasons to be recorded in writing that the Government servant shall be paid for 4 W.P. No. 5944/2010 the period of such delay only such amount (not being the whole) of such pay and allowances as it may determine. (8) The payment of allowances under sub-rule (2), sub-rule (3) or sub-rule (5), shall be subject to all other conditions under which such allowances are admissible. Sub-Rule (1) obligates the competent authority in case where Government servant who was suspended is reinstated to make a specific order (i) regarding pay and allowances to be paid to Government servant for the period of suspension ending with reinstatement (ii) whether or not the said period shall be treated as a period spent on duty. The decision to be taken under sub-rule (1) is bridled with the decision required to be taken under sub-rule (3), i.e., where the suspension is held to be wholly unjustified, then the government servant is entitled for full pay and allowance subject to provisions of sub-rule (8). In other words even executive instructions issued to that effect will hold the field when it comes to payment of full pay and allowances. Whereas sub-rule (1) and sub-rule (3) makes a provision regarding pay and allowances to be paid in the events mentioned therein. Sub-rule 8 provides for payment of allowances contains under which such allowances are payable. 11. However, in a case where the suspension is held to be wholly justified, an employee will not be benefited of sub-rule (3) and sub- rule (8) of FR 54 B. In such circumstances, the petitioner is not 5 W.P. No. 5944/2010 benefited by the verdict in Umashankar Choubey (supra) wherein the instance was of the case where the suspension was held as unjustified. 12. Sub-rule (3) of F.R. 54-B cast the discretion in the competent authority to form an opinion whether the suspension of a government servant is wholly unjustified. 13. In the case at hand, the petitioner was placed under suspension not because of the pending departmental enquiry nor in contemplation of a departmental enquiry. The suspension was because of his arrest in connection with a criminal charge. Such a suspension has been held to be a statutory suspension. In Union of India v. Rajiv Kumar (2003 AIR SCW 3507) it is held: 15. Rule 10(2) is a deemed provision and creates a legal fiction. A bare reading of the provision shows that an actual order is not required to be passed. That is deemed to have been passed by operation of the legal fiction. It has as much efficacy, force and operation as an order otherwise specifically passed under other provisions. It does not speak of any period of its effectiveness. Rules 10(3) and 10(4) operate conceptually in different situations and need specific provisions separately on account of interposition of an order of Court of law or an order passed by the Appellate or reviewing authority and the natural consequences inevitably flowing from such orders. Great emphasis is laid on the expressions "until further orders" in the said sub-rules to emphasise that such a prescription is missing in Sub-rule (2). Therefore, it is urged that the order is effective for the period of detention alone. The plea is clearly without any substance because of Sub-rule 5(a) and 5(c) of Rule 10. The said 6 W.P. No. 5944/2010 provisions refer to an order of suspension made or deemed to have been made. Obviously, the only order which is even initially deemed to have been made under Rule 10 is one contemplated under Sub-rule (2).The said provision under Rule 10(5)(a) makes it crystal clear that the order continues to remain in force until it is modified or revoked by an authority competent to do so while Rule 10(5)(c) empowers the competent authority to modify or revoke also. No exception is made relating to an order under Rules 10(2) and 10(5)(a). On the contrary, specifically it encompasses an order under Rule 10(2). If the order deemed to have been made under Rule 10(2) is to loose effectiveness automatically after the period of detention envisaged comes to an end, there would be no scope for the same being modified as contended by the respondents and there was no need to make such provisions as are engrafted in Rule 10(5)(a) and (c) and instead an equally deeming provision to bring an end to the duration of the deemed order would by itself suffice for the purpose.” And are held to be justified even when the employee/accused is exonerated of charges and acquitted (Please see 1968 MPLJ 49 and 466). 14. In Ranchhodji Chaturji Thakore (supra) it is held: “3. The reinstatement of the petitioner into the service has already been ordered by the High Court. The only question is whether he is entitled to back wages. It was his conduct of involving himself in the crime that was taken into account for his not being in service of the respondent. Consequent upon his acquittal, he is entitled to reinstatement 7 W.P. No. 5944/2010 for the reason that his service was terminated on the basis of the conviction by operation of proviso to the statutory rules applicable to the situation. The question of back wages would be considered only if the respondents have taken action by way of disciplinary proceedings and the action was found to be unsustainable in law and he was unlawfully prevented from discharging the duties. In that context, his conduct becomes relevant. Each case requires to be considered in its own backdrop. In this case, since the petitioner had involved himself in a crime, though he was later acquitted, he had disabled himself from rendering the service on account of conviction and incarceration in jail. Under these circumstances, the petitioner is not entitled to payment of back wages. .... ....” 15. In Jaipal Singh (supra) it is held : “4. ...... If prosecution, which ultimately resulted in acquittal of the person concerned was at the behest or by department itself, perhaps different considerations may arise. On the other hand, if as a citizen the employee or a public servant got involved in a criminal case and if after initial conviction by the trial court, he gets acquittal on appeal subsequently, the department cannot in any manner be found fault with for having kept him out of service, since the law obliges, a person convicted of an offence to be so kept out and not to be retained in service....... ..... ....” 8 W.P. No. 5944/2010 16. The principle then was followed in Baldev Singh (supra) in following terms: “7. As the factual position noted clearly indicates the appellant was not in actual service for the period he was in custody. Merely because there has been an acquittal does not automatically entitle him to get salary for the concerned period. This is more so, on the logic of no work no pay. It is to be noted that the appellant was terminated from service because of the conviction. Effect of the same does not get diluted because of subsequent acquittal for the purpose of counting service. The aforesaid position was clearly stated in Ranchhodji Chaturji Thakore v. Supdt. Engineer, Gujarat Electricity Board.” 17. True it is that these were not the cases regarding FR 54 B; however, the suspension, the circumstances which led to such suspension and the consequence in the event of the revocation was dwelt upon in these cases, wherein it is unanimously held that in case the suspension is because of the involvement of the Government employee in a criminal case not at the instance of the department, a revocation of suspension after his acquittal will not entitle him for back-wages as such suspension cannot be said to be unjustified. 18. In the circumstances of present case the authority concerned, was well justified in treating the period of suspension as non-duty for the purpose of the benefit and not a break in service. To that extent the order cannot be interfered with. 9 W.P. No. 5944/2010 19. The issue, however, still remains to be answered is as to whether, when the entire period of suspension has not been treated as break in service ( bl vof/k esa mudh lsok Hkh Hkax ugha ekuh tk;sxh ), the competent authority was justified in not counting the said period for the purpose of pension. 20. Pension of a Central Government servant is governed by Central Civil Service (Pension) Rules, 1972. 21. Rule 3 (q) of the Rules, 1972 defines “qualifying service” which means “service rendered while on duty or otherwise which shall be taken into account for the purpose of pension and gratuities admissible under these rules. Thus it is the service rendered while on duty or otherwise which entitles/qualifies a government servant for pension, and not the duty alone. Thus in a case, as the given one there is no break in service, a non-duty period cannot be excluded from counting the said period of suspension for the purpose of pension. The decision of the competent authority for not treating the period of suspension, having condoned the break in service, being patently erroneous, cannot be given approval. 22. In the result though the order of treating the period of suspension as non-duty and that the petitioner shall not be entitled for further pay and allowances for the said period except the subsistence allowance and that the period shall not be treated as break in service cannot be faulted with. However, for the reasons that the period of suspension having not been treated as break in service, the order is modified to the extent that the period spent on suspension shall be counted towards pension. 23. The petition is allowed to the extent above. No costs. (SANJAY YADAV) (T.K. KAUSHAL) 10 W.P. No. 5944/2010 JUDGE JUDGE Vivek Tripathi 11