Eknath Shankar Kamble v. Chief Executive Officer, Zilla Parishad, Sangli

15. Rule 72 of the Suspension Rules, 1981 governs the treatment to be meted out to an employee, who has been ordered to be reinstated, in the matter of suspension period. Relevant parts of Rule 72 read as under:

16. Sub-rule (3) of Rule 72 empowers the authority competent to order reinstatement of a Government servant, to direct that he be paid salary and allowances to which he would have been entitled had he not been suspended where the authority is of the opinion that the suspension was wholly unjustified. A conjoint reading of the provisions contained in sub-rules (3), (5) and (7) of Rule 72 (extracted above), would indicate that the competent authority is vested with power to determine whether the suspended employee, post reinstatement, is entitled to full pay and allowances having regard to the question as to whether the suspension was justifiable or not. The words ‘wholly unjustified’ envisage a negative test in the sense that if the authority is of the view that in the backdrop of the nature of the accusation, or the imputation of misconduct, the suspension was justified. If the authority records a finding that, in the facts of the given case, despite the acquittal of the Government servant, the suspension was not wholly unjustified, the Government servant is not entitled to the dispensation of the suspension period being treated as the period spent on duty and, thus, all the consequential benefits.

17. A useful reference in this context can be made to a judgment of the Supreme Court in the case of Krishnakant Raghunath Bibhavnekar V/s. State of Maharashtra an Ors.[5] wherein the Supreme Court had an occasion to consider the import and application of Rule 72 in the backdrop of a claim for treating the suspension period as the period spent on duty on the strength of acquittal of the Appellant therein of a charge of the offence punishable under Section 409 of the Indian Penal Code. Explaining the purpose of the prosecution of a public servant and the courses which are open to the disciplinary authority in the event the prosecution ends in acquittal, the Supreme Court observed as under: “4……….The purpose of prosecution of a public servant is to maintain discipline in service, integrity, honesty and truthful conduct in performance of public duty or for modulation of his conduct to further the efficiency in public service. The Constitution has given full faith and credit to public acts, conduct of a public servant has to be an open book: corrupt would be known to everyone. The reputation would gain notoriety. Though legal evidence may be insufficient to bring home the guilt beyond doubt or fool proof. The act of reinstatement sends ripples among the people in the office/locality and sows wrong signals for degeneration of morality, integrity and rightful conduct and efficient performance of public duty. The constitutional animation of public faith and credit given to public acts, would be undermined. Every act or the conduct of a public servant should be to effectuate the public purpose and constitutional objective. Public servant renders himself accountable to the public. The very cause for suspension of the petitioner and taking punitive action against him was his conduct that led to the prosecution of him for the offences under the Indian Penal Code. If the conduct alleged is the foundation for prosecution, though it may end in acquittal on appreciation or lack of sufficient evidence, the question emerges: whether the Government servant prosecuted for commission of defalcation of public funds and fabrication of the records, though culminated into acquittal, is entitled to be reinstated with consequential benefits? In our considered view, this grant of consequential benefits with all back wages etc. cannot be as a matter of course. We think that it would deleterious to the maintenance of the discipline if a person suspended on valid considerations is given full back wages as a matter of course, on his acquittal. Two courses are open to the disciplinary authority, viz., it may enquire into misconduct unless, the self-same conduct was subject of charge and on trial the acquittal was recorded on a positive finding that the accused did not commit the offence at all; but acquittal is not on benefit of doubt given. Appropriate action may be taken thereon. Even otherwise, the authority may, on reinstatement after following the principle of natural justice, pass appropriate order including treating suspension period as period of not on duty, (and on payment of subsistence allowance etc.) Rules 72(3), 72 (5) and 72 (7) of the Rules give a discretion to the disciplinary authority. Rule 72 also applies, as the action was taken after the acquittal by which date rule was in force. Therefore, when the suspension period was treated to be a suspension pending the trial and even after acquittal, he was reinstated into service he would not be entitled to the consequential benefits. As a consequence, he would not be entitled to the benefits of nine increments as stated in para 6of the additional affidavit. He is also not entitled to be treated as on duty from the date of suspension till the date of the acquittal for purpose of computation of pensionary benefits etc. The Appellant is also not entitled to any other consequential benefits as enumerated in paras 5 and 6 of the additional Affidavit.” (emphasis supplied)

18. The Supreme Court has enunciated in clear and explicit terms that even where a public servant is acquitted in a criminal case, the consequential benefit with all backwages cannot be automatic and as a matter of course. It will be deleterious to the maintenance of the discipline if a person suspended on valid considerations is given full back wages as a matter of course, on his acquittal. It was open to the disciplinary authority to either initiate disciplinary proceeding or pass an order to determine the period of suspension as such or the period spent on duty. The exercise of the latter course, in a large measure, hinges upon the nature of the acquittal. Is the acquittal clean and honourable, in the sense that the employee is completely exonerated ? Is the employee acquitted by extending benefit of doubt or on account of technical or procedural flaws in the prosecution case ?

19. If the answer to the first question is in the affirmative, the very substratum of the allegation against the employee is dismantled, thereby rendering the suspension itself unjustifiable. In that event, it would be iniquitous to deny the benefit which would have otherwise flown to the employee but for suspension. Conversely, where the acquittal is on account of the failure of the prosecution to bring home the charge to the employee beyond reasonable doubt or on technical ground, the imputation which warranted suspension of an employee does not get wiped out.

20. In the matter of the reinstatement of an employee or treating the suspension period post acquittal of the employee in a criminal case, this distinction between the nature of the acquittals is well recognized. A profitable reference can be made to a judgment of the Supreme Court in the case of Deputy Inspector General of Police and Anr. V/s. S. Samuthiram[6] wherein the Supreme Court expounded the import of the term ‘honourable acquittal’. The observations in paragraphs 24 and 26 are instructive and, hence, extracted below:

21. In a recent pronouncement in the case of Union of India and Ors. V/s. the Supreme Court reiterated that the expression ‘honourable acquittal’, ‘acquitted of blame’ and ‘fully acquitted’ are unknown to the Code of Criminal Procedure. Explaining the import of the term ‘honourable acquittal’ the Supreme Court observed, thus:

22. The aforesaid pronouncement in the case of Union of India and Ors. V/s. Methu Meda (supra), was followed by the Division Bench of this Court in the case of Ravindra Prasad Munneshwar Prasad (supra), on which reliance was placed by the learned Counsel for the Respondent No.1.

23. On the aforesaid touchstone, reverting to the facts of the case, recourse to the judgment delivered by the learned Special Judge in Special Case No.4 of 2002 becomes indispensable. The learned Special Judge was of the view that there was no consistency in the deposition of the Complainant and the trap witness. The evidence of the complainant and trap witness regarding the demand of bribe was untrustworthy. It did not inspire confidence. It was further noted that the Complainant in the said case, was also aware that the Petitioner-accused was not concerned with forwarding of the proposal for approval to the Zilla Parishad. Nor the Head Master of the School had referred the Complainant to the Petitioner. It was, thus, concluded that the prosecution could not succeed in establishing the guilt of the accused beyond reasonable doubt.

24. To ascertain as to whether the acquittal of the Petitioner was a clean acquittal or was he acquitted by extending the benefit of doubt, it may be necessary to extract the observations of the learned Special Judge in paragraphs 23 to 26 of the Judgment dated 28 April 2009. They read as under:

sanction (Exhibit 33) has admitted that accused being a draftsman, has to prepare a map, sketches in which he is supposed to show area. It is important to note that Sanctioning Authority has admitted that in the month of October 2001, accused prepared the statement and the map and rent was determined at the rate of Rs.900/- p.m. and the same was submitted to Kothi Engineer. It is not proved that accused was concerned with the sending the proposal; on the contrary, he has no authority to do the work, for which bribe was alleged to be demanded.

26. It is also to be noted that the proposal was given by the complainant Devkar to the school and Head Master of school sent the proposal for sanctioning the rent. Complainant has admitted that he was not deputed by Head Master to make inquiry with the accused. On the contrary, it appears that there was a correspondence between the school and the panchayat samiti. It is true that complainant Devkar was a beneficiary; but when a proposal was not sent by him and when the house was given to the school on lease, I hold that since prosecution has not proved the charges against the accused beyond reasonable doubt. Therefore, both the points are replied in the negative.”

25. Undoubtedly, the observations in paragraph 23 advert to a lacuna in the prosecution case on account of the fact that the officer who was a formal complainant himself entered into investigation. The said reason is plainly a technical ground, of which the learned Special Judge was persuaded to give benefit to the Petitioneraccused. However, the observations in the succeeding three paragraphs are of critical salience.

26. It is true, the nature of imputation is of material significance. Where the alleged misconduct is of demand and acceptance of an illegal gratification, different considerations come into play. In such a situation, the acquittal of an employee does not ipso facto lead to grant of all the service benefits. Under Rule 72, the Competent Authority is empowered to determine whether the suspension was wholly unjustified. The nature of acquittal, thus, assumes importance.

27. The reasons which weighed with the learned Special Judge in acquitting the Petitioner, extracted above, indicate that the learned Special Judge found that, firstly, the Petitioner was not entrusted with the task of forwarding proposal to the Zilla Parishad; secondly, the Head of the School had not referred the Complainant to the Petitioner; thirdly, the evidence of the complainant and the trap witness regarding the demand of illegal gratification was untrustworthy and did not inspire confidence. Fourthly, the acceptance of bribe and recovery of tainted currency notes were not proved by the prosecution beyond doubt.

28. In the backdrop of the aforesaid reasons, it would be difficult to accede to the submission on behalf of the Respondents that the observations in the judgment of the learned Special Judge that the prosecution failed to establish the guilt of the accused beyond reasonable doubt, are of decisive nature. The nature of the acquittal is required to be appreciated in the light of the entire reasoning. Use of expression ‘not proved beyond reasonable doubt’ cannot be the sole barometer. The said expression also denotes the standard of proof on the touchstone of which the evidence is appraised. It may not, therefore, be justifiable to hold that the acquittal can in no case be honourable or clean where the criminal court uses the expression ‘not proved beyond reasonable doubt’ or that the accused is entitled to ‘benefit of doubt’.

29. In the case at hand, on a proper analysis, an inference becomes inescapable that the learned Special Judge found that the prosecution failed to prove the guilt of the accused - on all ingredients like opportunity, demand and acceptance. The observations by the learned Special Judge that mere recovery of tainted currency notes from the accused cannot be considered as a circumstance pointing to the guilt of the accused, in my view, cannot be read in isolation and disjuncted from the preceding observations in paragraph 24.

30. In the case of Commissioner, Amravati Municipal Corporation V/s. B.S.Sawai (supra), a learned Single Judge repelled the challenge on the ground that the employee therein was not honourably acquitted. It was inter alia observed as under:

31. In the case of Manohar Shankar Dhoke V/s. The Chief Executive Officer and Anr. (supra), another learned Single Judge adverted to the fact that in the judgment of acquittal, the criminal Court had recorded that benefit of doubt should be given to the Petitioner therein and yet, persuaded to hold that a stray observation in the judgment cannot be construed to mean that the acquittal of the Petitioner was not a clean acquittal, but was on account of benefit of doubt. The observations in paragraphs 6 and 7 read as under:

32. I am conscious that the decision in the case of B.S.Sawai (supra), was rendered in a different fact situation, wherein the employee was prosecuted for an offence punishable under Section 302 of the Indian Penal Code In the case of Manohar Shankar Dhoke (supra), in addition to acquittal in the criminal case, the employee therein was also exonerated in a disciplinary inquiry and that constituted an additional circumstance. However, the fact remains that mere use of the expression ‘benefit of doubt’ in the judgment of criminal court, by itself, would not deprive the employee from claiming that the acquittal was ‘honourable’ or ‘clean’. If in the totality of the circumstances, the court comes to the conclusion that the acquittal of an employee is after consideration of the entire material and recording categorical finding that the guilt is not proved, the fact that the criminal court had also used an expression ‘benefit of doubt’ in the judgment would not constitute an impediment in inferring ‘honourable acquittal’.

33. The matter can be looked at from another perspective. Admittedly, no disciplinary proceeding was instituted against the Petitioner. Indisputably, the Petitioner was retired in public interest by an order dated 15 October 2005 with effect from 16 January 2006 under Rule 10(4)(b) of the Pension Rules, 1982. Retirement in public interest cannot be said to be wholly unconnected with the circumstances which led to the suspension of the Petitioner. It is true, retirement in public interest was not by way of penalty. But the totality of the circumstances cannot be lost sight of. The Petitioner came to be acquitted from the prosecution. No disciplinary action was initiated against the Petitioner. Yet the Petitioner stood retired in public interest three years prior to the normal superannuation.

34. In the circumstances, in my view, the learned Member, Industrial Court committed an error in dismissing the Complaint.

35. In the totality of the circumstances, in my considered view, the period of suspension deserves to be treated as the period spent on duty for the purpose of retiral benefits. The said period is required to be counted towards qualifying service under Rule 43 of the Maharashtra Civil Services (Pension), 1982 and the pension deserves to be refixed after taking into account the salary which the Petitioner would have notionally drawn on 16 January 2006, the date he was retired in public interest upon the suspension period being treated as the period spent on duty. The Petitioner shall, however, be not entitled to pay and allowances for the said period, save and except the subsistence allowance which has been paid to the Petitioner.

36. Resultantly, the Petition deserves to be partly allowed.

37. Hence, the following order: ORDER

(i) The Petition stands partly allowed.

(ii) The impugned order dated 15 March 2017 passed by the learned

Member, Industrial Court as well as the order dated 11 January 2010 passed by the Respondent No.1 and order dated 19 December 2012 in Appeal passed by Respondent No.2 stand quashed and set aside.

(iii) The suspension period commencing from 18 October 2001 to 16 January 2006 shall be treated as the period spent on duty for the purpose of retiral benefits only.

(iv) The said period be counted towards qualifying service under Rule 43 of the Maharashtra Civil Services (Pension) Rules, 1982, and the pension be refixed after taking into account the salary which the Petitioner would have notionally drawn on 16 January 2006, the date he was retired in public interest.

(vi) The Petitioner shall, however, be not entitled to pay and allowances for the said period

(vii) Rule made absolute to the aforesaid extent.