REPORTA
BLE
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (CIVIL) NO. 200 OF 2006
Gurpal Singh
...Petitioner
VERSUS
High Court of Judicature for Rajasthan
...Respondent
J U D G M E N T
SURINDER SINGH NIJJAR, J.
1. In this petition, under Article 32 of the Constitution
of India, the petitioner seeks a writ in the nature of
Certiorari for quashing the order of suspension dated
20th December, 1985 by declaring the same to be void-ab-
initio.
The petitioner also claims a declaration that
the order dated 24th January, 2009 is void and that the
petitioner is entitled to all benefits for the period
of suspension from 20th December, 1985 till 26th March,
2008, when he was reinstated in service.
2. We may briefly advert to the relevant facts on the
basis of which the petitioner claims the aforesaid
relief.
3. On 28th December, 1979, the petitioner was selected by
the Rajasthan Public Service Commission (R.P.S.C.) for
the post of Assistant Public Prosecutor Grade II.
He
served on the said post till 28th July, 1980.
On the
very next day, i.e. 29th July, 1980, he
was selected for appointment to the Rajasthan Judicial
Service and joined as Judicial Magistrate First Class.
For sometime,
he remained posted at Banswara as
Judicial Magistrate.
During this period, his judgments
were graded as above average and integrity as “beyond
doubt”.
In the inspection report, it was further
remarked that “his behaviour with members of the Bar,
litigants and the persons coming to the Court needs
improvement”.
It appears that he was not on best of
terms with the local Bar, which led to his transfer.
4. On 24th November, 1985, at about 10.30 p.m., a dead
body was found near Ajmer Pulia on the railway track in
the city of Jaipur.
The dead body was identified as
that of one Mr. Suresh Chand Gupta, Advocate.
A
‘Marag’ (death) case was registered on 24th November,
1985, at Serial No. 35/85 at Police Station GRP,
Jaipur.
It appears that the local bar association of
which the deceased was a member protested that proper
investigation was not being conducted about the manner
in which Mr. Suresh Chand Gupta was found dead on the
railway track.
The members of the Bar Association
insisted that his death was result of some foul play.
On 11th December, 1985, that is about 20
days after the incident, wife of the deceased gave a
written complaint,
alleging that the Petitioner was
involved in the murder of her husband.
In her written
complaint, she alleged that her husband had informed
her about three months prior to the incident that the
petitioner had demanded a sum of Rs.1 lac for
exercising his influence with the high-ups, in securing
the appointment of the deceased as a member of Board of
Revenue.
She claimed that the money which was paid to
the petitioner was arranged by her deceased husband by
selling a plot of land. He had also borrowed money
from her father and other relatives.
Inspite of having
paid the aforesaid money, her husband was not provided
any appointment.
Consequently, her husband had been
insisting that the petitioner return the amount
unnecessarily paid to him.
She claimed that the
petitioner had agreed to return the money and asked her
husband to meet at a pre-arranged place.
Her husband
left home at 5.00 p.m. on 24th November, 1985 and did
not return.
She, therefore, concluded that the
petitioner must have killed her husband on account of
the dispute over money.
5. Upon coming to know about the complaint made by the
wife of the deceased,
the petitioner himself went to
the Police Station on 18th December, 1985 and offered
to join the investigation.
He requested the police to
complete the investigation as soon as possible, as in
the meantime, he has been transferred and had to join
at Vallabhnagar.
In the meantime, the local bar
association continued the agitation against the
inaction of the police.
The lawyers resorted to strike
and the work at the Courts was paralysed for many days
to come.
The situation was so grave that when the
application of the petitioner for anticipatory bail
came up for hearing before the High Court on 20th
December, 1985, members of the Bar Association did not
allow the advocate of the petitioner to argue the case.
The petitioner relies on the order passed by M.B.
Sharma, J. on 20th December, 1985, which is as under:-
“20.12.1985
Mr. M.I. Khan, Public Prosecutor for the State.
The bail application was fixed for orders at 2.00
p.m. and the Public Prosecutor had sought time to get the
case diary from the Investigating Officer. I am in the
court for last 15 minutes, but the entry to the Court has
been blocked by the advocates and others. It is for the
members of the August profession to consider how far it
is justified. The advocate for the petitioner could not
come to the court because of that blockade. Hence the
case cannot be taken up. I have no option but to retire
to the Chamber. The case is adjourned to January 2,
1986.
Sd/- Sharma, M.B.”
6. Thereafter, the High Court was closed for winter break
on 21st December, 1985.
On 20th December, 1985, the
petitioner was formally arrested and taken into custody
by the police (CBI, Jaipur).
He was placed under
suspension on 22nd December, 1985
w.e.f. 20th December, 1985. Since the petitioner had
already been arrested, the anticipatory bail
application was dismissed as having become infructuous
on 2nd January, 1986.
In view of the volatile
atmosphere, the petitioner apprehended that he would
not get a fair trial in the Criminal Case No. 3/86
pending before the Sessions Judge, Jaipur against him.
He, therefore, approached this Court with a prayer for
transfer of the criminal trial.
By Order
dated 4th August, 1986, this Court transferred the
trial in the aforesaid criminal case to a Court of
competent jurisdiction in Delhi.
Thereafter, the trial
was duly conducted at Delhi.
By
judgment and order dated 1st May, 2002, the petitioner
was acquitted by the Additional Session Judge, Delhi.
7. Upon acquittal by the trial court,
the petitioner
submitted a joining report on 6th May, 2002 to the
Registrar General, Rajasthan High Court.
The request
made by the petitioner remained under consideration of
the High Court from the said date.
The decision was
deferred to await the result of the appeal, if any,
preferred against the acquittal of the petitioner.
It
appears that an appeal was filed by the CBI, which,
however, came to be dismissed by a Division Bench of
the Delhi High Court on 27th September, 2005.
8. The petitioner submitted his joining report
on 3rd October, 2005.
However, no action
was taken by the High Court.
It was only on 17th
November, 2005 that he was directed to mark his
attendance at the office of the District and Session
Judge, Jaipur.
By this time, the petitioner had been
under suspension for a period of 20 years.
He,
therefore, submitted another representation on 2nd
March, 2006 setting out the grievances and seeking
permission to appear in person before the Chief
Justice.
9. In the meantime,
the petitioner came to know that
instead of revoking the order of suspension, the High
Court may initiate disciplinary proceedings against
him.
At that stage, the petitioner was only about 2
years short of the age of superannuation.
He,
therefore, moved the present Writ Petition, seeking
immediate revocation of the order of suspension and
consequential benefits.
On 8th May, 2006, it was
brought to the notice of this Court that after filing
of the writ petition, the High Court has initiated the
departmental proceedings against the petitioner,
but no
fresh order of suspension has been passed.
It was,
therefore, submitted that direction be issued to the
High Court to reinstate the petitioner forthwith.
This
Court issued notice on the Writ Petition and also on
the application for ex-parte stay.
Subsequently, the
matter came up for hearing on
25th January, 2007 when this Court directed that the
matter be posted for final disposal in the last week of
March, 2007.
On 4th January, 2008, it was
submitted on behalf of the respondent that the enquiry
proceedings were in progress against the petitioner.
Therefore, this Court directed the High Court to
complete the enquiry within a period of eight weeks and
submit its report.
10. The enquiry was duly completed.
In the Enquiry Report
dated 27th February, 2008, the petitioner was
exonerated of the charges levelled against him.
It was
only at that stage, that he was reinstated with
immediate effect, by order dated 26th March, 2008.
The
orders passed by the respondent were placed on the
record of these proceedings with the affidavit dated
22nd April, 2008 filed by the Registrar (Writs).
The
petitioner was, thereafter, given the posting order at
Vijai Nagar on 12th May, 2008.
He retired from service
on attaining the age of superannuation on 30th June,
2008.
11. It appears that
the trials and tribulations of the
petitioner did not come to an end, even after
retirement.
In fact on 24th January,
2009, an order was issued on the basis of the
resolution passed by the Full Court in its meeting held
on 29th November, 2008, wherein it
was resolved as under:-
“RAJASTHAN HIGH COURT, JODHPUR
ORDER
No. Estt. (RJS) 15/2009 Date :- 24.01.2009
WHEREAS SHRI GURPAL SINGH, RJS presently retired was
placed under suspension vide this office Order No. Estt.
(RJS) 199/85 dated 22.12.1985.
AND WHEREAS it was decided that regular disciplinary
proceedings under rule 16 of the Rajasthan Civil Service
(Classification, Control & Appeal) Rules, 1958 be
initiated against Shri Gurpal Singh, RJS presently
retired.
AND WHEREAS Hon’ble the Chief Justice in exercise of
the powers conferred by Rule 13 of the Rajasthan Civil
Service (Classification, Control & Appeal) Rules, 1958
read with Full Court Resolution dated October 30, 1971
was pleased to order that on account of initiation of a
regular enquiry under rule 16 of Rajasthan Civil Service
(Classification, Control & Appeal) Rules, 1958 the
suspension of Shri Gurpal Singh shall continue.
AND WHEREAS Departmental Enquiry under rule 16 of
the Rajasthan Civil Service (Classification, Control and
Appeal) Rules, 1958 was initiated against said Shri
Gurpal Singh vide Memorandum No. Estt. B2(iii) /
/2006/1544 dated 20.04.2006.
AND WHERAS in the above departmental enquiry said
Shri Gurpal Singh has been exonerated vide order No.
Estt. (RJS) 25/2008 dated 26.03.2008.
AND WHEREAS, Shri Gurpal Singh has been reinstated
with immediate effect as Civil Judge (Jr. Div.) &
Judicial Magistrate in the RJS vide order No. Estt. (RJS)
26/2008 dated 26.03.2008.
AND WHEREAS the matter regarding regularization of
suspension period of Shri Gurpal Singh was considered by
the Hon’ble Full Court in its meeting held on 29.11.2008
and it was resolved as under:-
“Perused office note and relevant record. RESOLVED
that period of his suspension shall be treated as a
period spent on duty, but without salary except
subsistence allowances already paid to him. However,
this will not effect (sic) his pensionary benefits but he
will not be entitled for any promotion.”
NOW THEREFORE, the period of his suspension shall be
treated as a period spent on duty, but without salary
except subsistence allowances already paid to him.
However, this will not effect (sic) his pensionary
benefits but he will not be entitled for any promotion.
BY ORDER
Sd/
24.01.2009
REGISTRAR (ADMN.)”
12. The petitioner, therefore, sought amendment of the writ
petition through I.A. No. 6 of 2009. The aforesaid
application for amendment was allowed by this Court on
27th February, 2009.
After the amendment, the counter
affidavit was filed by the respondents to the amended
writ petition.
The matter was heard by this Court on a
number of occasions.
On 5th April, 2011, this Court
passed the following order:-
“Having regard to the facts of the case, this Court is of
the opinion that interest of justice would be served if
the High Court is given an opportunity to pass
appropriate orders under Rule 54 of the
Rules.
Therefore, the matter is remitted to the
High Court on its administrative side to pass appropriate
orders under Rule 54. The High Court shall issue
notice to the petitioner and afford him an
opportunity of hearing by calling upon him to file
reply to the notice.
The High Court shall thereafter
consider the reply and pass a reasoned
order under Rule 54 of the Rules of 1951. This exercise
shall be completed as early as possible and
without any avoidable delay but in any case not
later than six weeks from today. The High Court to file
the order which may be passed by it in the present
proceedings.”
13. Pursuant to the aforesaid direction, it appears that a
Committee was constituted by the Rajasthan High Court
(hereinafter referred to as ‘Committee’) to examine the
case of the petitioner, in terms of Rule 54 of the
Rajasthan Service Rules, 1951 (hereinafter referred to
as “1951 Rules”) for determining
“whether his
suspension was wholly justified or wholly unjustified
or partly justified and to what extent, he was entitled
for salary and/or full salary during period of
suspension?”
14. In this respect, a notice dated 25th April, 2011 was
sent to the petitioner by the Registrar (Admn.),
directing him to file a reply, and remain present
before the aforesaid Committee on 5th May, 2011.
In
response to the said notice, the petitioner submitted a
detailed reply dated 2nd May, 2011 and appeared before
the Committee on 5th May, 2011. Thereafter
on 16th May, 2011, the Committee passed the
following order:
“THEREFORE, in the present facts & circumstances
(Supra), period during which Shri Gurpal Singh remained
under Suspension cannot be said to be wholly unjustified
and sub-rule (2) of R. 54 of RSR in negative form where
the authority has to examine as to whether suspension was
wholly unjustified. However, after going through
complete material on record (supra), the Court is of the
view that in the given facts & circumstances (supra),
suspension of Shri Gurpal Singh cannot be said to be
wholly unjustified and what he was entitled for under law
has been paid to him in terms of Resolution of Full Court
dt.29.11.2008 (supra) conveyed vide order dt.
24.01.2009.”
15. It becomes clear from the perusal of the aforesaid
order that the Rajasthan High Court after giving an
opportunity of hearing to the petitioner, reiterated
the Resolution of the Full Court dated 29th November,
2008, communicated vide order dated 24th January, 2009.
16. We have heard the learned counsel for the parties at
length.
17. Very elaborate submissions have been made by the
learned counsel for the parties. We may, however,
briefly notice the very crux of the submissions.
18. Mr. M.R. Calla, learned senior counsel appearing for
the petitioner, submitted
that the respondent has to
justify the suspension order on the day it was passed,
i.e. on 20th December, 1985.
Further,
since the suspension of the petitioner had
continued for 22 years, 3 months and 7 days, the
respondent would have to satisfy the court that such a
prolong suspension was also justified.
Whether or not
the order of suspension was justified, partly justified
or wholly unjustified would have to be seen in the
light of result of not only the trial in criminal case
but also of the departmental enquiry where the
petitioner was proceeded against by the department.
According to the learned senior counsel,
whilst taking
a decision under Rule 54 of the 1951 Rules, the
disciplinary authority was required to keep in mind the
outcome of the criminal trial and the departmental
proceeding.
19. Relying on some judgments of this Court, Mr. Calla had
submitted
that an employee who is suspended due to the
pendency of the criminal investigation/trial has to be
reinstated upon acquittal.
Further upon reinstatement,
he would be entitled to full salary and allowances for
the period he is kept under suspension.
According to
the learned senior counsel, an acquittal either by
trial court or by the appellate court would relate back
to the date on which the order of suspension was
passed.
Mr. Calla then submitted that in the facts of
this case, the petitioner was suspended due to the
registration of the criminal case against him.
At the
time when the petitioner was acquitted he was entitled
to be reinstated. However, since an appeal was filed
against the acquittal by the CBI, the petitioner was
neither reinstated nor his suspension was revoked.
Even
when the aforesaid appeal was dismissed by the High
Court, the request of the petitioner for reinstatement
was not considered.
This, according to Mr.
Calla, was a second stage when the appellant was
entitled to reinstatement and to the payment of full
salary and allowances.
Mr. Calla further pointed out
that even after acquittal, the appellant was unjustly
subjected to a departmental enquiry.
The charges in the
departmental enquiry were based on the facts, which
were alleged to be the motive for the murder. Since the
petitioner was acquitted in the criminal trial, the
departmental proceedings against him were wholly
unjustified.
Therefore, according to Mr. Calla, the
continuation of suspension was also wholly unjustified.
20. Even at this stage, the respondent did not pass any
order under Rule 54 of the 1951 Rules.
It was only on
the directions issued by this Court on 5th April, 2011
that the respondent examined the case under Rule 54 and
passed the necessary order on 16th May, 2011.
It was
also submitted that the order passed on the directions
of this Court on 16th May, 2011 is contrary to the
order passed by the High Court on
24th January, 2009.
The latter order was passed after
the petitioner was reinstated in service on 26th May,
2008, regarding regularization of the suspension period
of the petitioner.
In the order passed under Rule 54,
the High Court had concluded that the period during
which the appellant was kept under suspension shall be
treated as a period spent on duty, but without salary
except subsistence allowance already paid to him.
Even
this order was passed during the pendency of the
present petition.
Mr. Calla then submitted that not
only the petitioner has been deprived of full pay and
allowances during the period of suspension, but even
his case for promotion was not considered with effect
from the date a person junior to him was considered for
promotion and promoted.
In support of his submission, Mr. Calla had relied
on a number of judgments which are as under :
Shri Manni Lal Vs. Shri Parmai Lal & Ors.[1],
Muhammad Ayoob Khuhro Vs. Emperor[2], Robert Stuart
Wauchope Vs. Emperor[3], Vidya Charan Shukla Vs.
Purshottam Lal Kaushik[4], O.P. Gupta Vs. Union of
India & Ors.[5], R.P. Kapur Vs. Union of India &
Anr.[6], Commissioner of Police, New Delhi Vs.
Narender Singh,[7] Corporation of the City of
Nagpur, Civil Lines, Nagpur & Anr. Vs. Ramchandra &
Ors.[8], Jasbir Singh Vs. Punjab & Sind Bank &
Ors.[9], The Divisional Superintendent, Northern
Railway & Anr. Vs. R.B. Hanifi[10], Govind Prasad
Vs. Union of India,[11] Union of India & Ors. Vs.
K.V. Jankiraman & Ors.[12], Union of India & Ors.
Vs. Sangram Keshari Nayak[13], Sulekh Chand & Salek
Chand Vs. Commissioner of Police & Ors.[14], State
of Kerala & Ors. Vs. E.K. Bhaskaran Pillai[15],
Union of India & Ors. Vs. Lt. Gen. Rajendra Singh
Kadyan & Anr.[16]
21. Mr. Pallav Shishodia, learned senior counsel on behalf
of Respondent No.1, sought dismissal of the present
writ petition, inter-alia, on the ground of delay. It
was pointed out that there is a delay of more than 20
years in challenging the order of suspension dated 20th
December, 1985. The learned senior counsel, in
response to submissions of Mr. Calla, submitted that
the initial suspension of the petitioner and further
continuation of the same, during the criminal trial;
during pendency of the appeal against acquittal; and
during the pendency of the departmental enquiry; was
not “only justified, but imperative,” in the view of
“sensitive nature of judicial work” which was being
undertaken by him. It was also submitted that since it
is never possible to anticipate the outcome of a
criminal trial or disciplinary proceedings which may
eventually lead to acquittal or exoneration, as the
case may be, suspension of the petitioner cannot be
termed as “wholly unjustified”. In addition, Mr.
Shishodia pointed out that the petitioner was acquitted
by the trial court on “benefit of doubt”. Further,
dismissal of the appeal against acquittal does not in
any manner affect the legal position.
22. It had also been pointed out by Mr. Shishodia that
since there is no allegation of suspension being “mala-
fide, vindictive or otherwise motivated”, there remains
no reason to interfere with the impugned order dated
24th January, 2009, as affirmed by the order dated 16th
May, 2011. The learned senior counsel had also
submitted that there is no challenge to the order dated
16th May, 2011 in the present writ petition, nor the
petitioner had made a submission that his prosecution
by the CBI was malicious or otherwise vitiated. In the
light of aforesaid submissions, it was contended that
suspension pending criminal proceedings and/or
departmental enquiry was fully justified. Mr.
Shishodia has also argued that the order denying full
pay to the petitioner was passed by the High Court, in
bonafide exercise of its powers and on the basis of
well settled interpretation of Rule 54 of the 1951
Rules.
23. The learned senior counsel, relying upon a number of
judgments of this Court, had further contended
that
matters relating to the grant of salary, promotions and
other benefits to an employee during the period of his
suspension are subject to the discretion of the
employer.
The employer has to strike a balance between
the rights of the employee and the imperatives of an
institution. He submitted that the High Court, acting
in a fair, objective and reasonable manner, has drawn
the line so as to avoid any disproportionate penalty.
It has struck a balance between the entitlement of the
petitioner and imperatives of the institution charged
with public duty of administration of justice.
24. The learned counsel had further submitted that
whatever amount was legally due to the petitioner has
already been paid to him.
It had been stated that
Rupees Twelve Lac Seventy Three Thousand Eight Hundred
Forty Two Only, i.e. Rs. 12,73,842/-,
have been paid to the petitioner under various heads,
like dearness allowance, subsistence allowance, etc.
Also, the petitioner gets a monthly pension to the
tune of Rupees Twenty Two Thousand Three Hundred
Eighty Five Only, i.e. Rs. 22,385/-.
The counsel relied upon the following judgments to
substantiate his contentions:
Management of Reserve Bank of India, New Delhi Vs.
Bhopal Singh Panchal[17], Krishnakant Raghunath
Bibhavnekar Vs. State of Maharashtra and Ors.[18],
K. Ponnamma (Smt.) Vs. State of Kerala & Ors.[19],
Dhananjay Vs. Chief Executive Officer, Zilla
Parishad, Jalna[20], Union of India & Ors. Vs.
Jaipal Singh[21], Baldev Singh Vs. Union of India &
Ors.[22], N. Selvaraj Vs. Kumbakonam City Union Bank
Ltd. & Anr.[23], Banshi Dhar Vs. State of Rajasthan
& Anr.[24], Divisional Controller, Gujarat SRTC Vs.
Kadarbhai J. Suthar[25], Union of India Vs. B.M.
Jha.[26]
25. We have considered the submissions made by the learned
senior counsel for the parties.
26. The only issue that needs to be resolved at this stage
is as to
whether the petitioner would be entitled only
to the subsistence allowance as already paid to him or
full salary and allowances, in view of his acquittal in
the criminal case and the exoneration in departmental
proceedings.
Related to the aforesaid issue would be a
consequential issue of notional promotion from the date
an officer junior to him was promoted in the Rajasthan
Judicial Service and the consequential entitlement to
the emoluments on the promotional post, which in turn
would determine the amount of suspension allowance and
the other retiral benefits.
27. In our opinion, it is not really necessary to notice
the ratio in each of the judgments cited, as all of
them reiterate certain well known principles of law. We
may, however, notice some of the principles highlighted
in the judgments cited by the learned counsel.
In the
case of Corporation of the City of Nagpur (supra), it
is observed
that it may not be expedient to continue a
departmental inquiry on the very same charges or
grounds or evidence, where the accused has been
acquitted honourably and completely exonerated of the
charges. At the same time, it is pointed out that
merely because the accused is acquitted, the power of
the authority concerned to continue the departmental
inquiry is not taken away nor is its discretion in any
way fettered.
28. The same principle is reiterated in the case of
Commissioner of Police, New Delhi Vs. Narender Singh
(supra).
29. In Jasbir Singh’s case (supra),
the appellant was a
confirmed peon in the respondent Bank. On an allegation
that he had forged the signature of a depositor R and
fraudulently withdrawn a certain sum, a departmental
proceeding was initiated against him. A criminal case
was also initiated simultaneously under Sections
409/201 IPC. He was acquitted in the criminal case.
However, despite acquittal, the departmental
proceedings continued and ultimately ended in an ex
parte report to the effect that the charges had been
proved. The respondent Bank also filed a suit against
the appellant for recovery of the said sum. The suit
was decreed but the appellate court held that the Bank
failed to prove that the appellant had withdrawn or
embezzled the said sum. It was held that the Bank was
not entitled to recover the said amount. That judgment
was not challenged. Thus, the same attained finality.
However, the writ petition filed by the appellant,
challenging the disciplinary proceedings and the order
of punishment was dismissed by the Punjab and Haryana
High Court. Without taking note of the decision of
civil court and relying on a provision of the Bipartite
Settlement, the High Court held that the departmental
proceedings could have been initiated even after the
judgment of acquittal in the criminal case. The
appellant employee then filed an appeal in this Court.
Allowing the appeal, this Court held that the
respondent Bank invited findings of a competent civil
court on the issue as to whether the appellant had
committed any embezzlement or not. Embezzlement of fund
was the principal charge against the appellant in all the
proceedings. The respondent Bank failed to prove any of
the charges before any court of law. The judgment in
civil matter having attained finality, was binding on the
respondent Bank.
It was further observed that in a case of this
nature, the High Court should have applied its mind to
the facts of the matter with reference to the materials
brought on record. It failed to do so and did not take
note of the decision of the civil court. It could not
have refused to look into the materials on record.
Therefore, the impugned judgment was set aside.
30. In O.P. Gupta’s case (supra), this Court emphasised the
principle that any order which would cause adverse
civil consequences, can only be passed upon observance
of the rules of Natural Justice. There is, therefore,
insistence upon requirement of a “fair hearing”. It was
also emphasised that long, continued suspension affects
the government servant injuriously. Since the order of
suspension entitles the government employee only to
“subsistence allowance”, resulting in penal
consequences, it should not be lightly passed. The
court also emphasised that the expression “life” does
not merely connote animal existence or a continued
drudgery through life. These are all well known
principles of law. We only make a reference to the
same, since the cases have been cited.
31. Similarly the judgments cited by Mr. Shishodia
reiterate the principle that
“no hard and fast rule”
can be laid down as to whether on reinstatement the
employee is entitled to full back wages or no back
wages at all.
All the cases reiterate the principle
that the facts and circumstances of each case have to
be examined by the concerned authority. It has to take
an informed decision on the basis of the material on
record. These judgments also reiterate that acquittal
of an employee would not automatically entitle him to
reinstatement or to payment of full back wages. The
power is normally vested with the disciplinary
authority to hold a departmental enquiry, even upon
conclusion of the criminal trial where the employee is
acquitted.
32. We have examined the entire issue keeping the aforesaid
principles in mind.
In order to determine the issue
relating to the entitlement of petitioner to the salary
and other allowance(s) upon reinstatement,
the matter
needs to be examined at the different stages/point of
time.
The first stage commenced at the time when the
petitioner was initially suspended on 22nd December,
1985 w.e.f. 20th December, 1985.
The petitioner, in our
opinion, cannot legitimately protest against his
suspension, at the initial stage, when he had remained
in police custody for more than forty eight hours,
though unfortunately for circumstances for which he was
not responsible.
This suspension was naturally
continued when he was facing the trial for murder.
33. The next stage is
when he was acquitted by the trial
court on 1st May, 2002.
The observations made by the
Additional Session Judge, Delhi whilst acquitting the
petitioner are as follows:-
“285. The case in hand does not pass the muster. The
circumstances that can be safely held as duly proved
would include only that there was long-standing
friendship between the accused and the deceased, and
discovery of dead body of the latter in circumstances
indicating unnatural death. The prosecution has failed
to prove beyond all reasonable doubts the theory of
accused having taken an amount of Rs. one lakh 20
thousand from the deceased on the promise of helping him
in securing appointment as Member in Board of Revenue, or
upon failure faced by the deceased in getting the said
appointment refusing to, or haggling over, return of the
said amount of money. The theory of accused having
returned Rs. one lakh to PW 1 after the incident is
suspect. There is a inordinate delay in the lodging of
FIR which, seen against the backdrop of claims by all and
sundry that they suspected involvement of the accused
from the very beginning, has remained unexplained and is
bound to prove fatal to the case (AIR 1996 SC 607).
286. The evidence regarding “last seen” does not
inspire confidence and has rather come out as a
fabricated one. Efforts to cook up evidence in the
course of investigation, for example the recovery of
blood stained clothes of the accused at his instance,
coupled with unauthorized handling of the material
exhibits recovered from the scene where the dead body had
been found, have given the impression that the same might
have been doctored. This erodes confidence in the
prosecution case. The investigation conducted smacks of
bias and prejudice under influence of certain elements
inimically placed vis-à-vis the accused. The benefit of
doubts arising as a result must accrue in favour of the
accused, since suspicion, however strong, cannot take the
place of proof in the final analysis.”
These observations would indicate that the trial
court disbelieved the very foundation of the prosecution
case. The alleged motive has been found to be without
any basis. The judgment of the trial court clearly
indicates that the evidence produced does not reach even
the bare minimum standard required for establishing the
guilt of the petitioner. The theory of the prosecution
that petitioner had demanded or taken money from the
deceased was not supported by any independent evidence.
The trial court also noticed that there was an inordinate
delay in the registration of the FIR, which had to be
seen against the backdrop of claims, by all and sundry,
that they suspected the involvement of the petitioner
from the very beginning. The trial court categorically
observed that in the peculiar circumstances of the case,
the delay in registration of the FIR was fatal to the
case of the prosecution. The trial court also observed
that the evidence with regard to “last seen” was
fabricated and, therefore, did not inspire confidence. It
is also observed that the investigation in the case had
not been conducted fairly. The Trial Court was left with
a definite impression that the evidence had been
“doctored”. The Court categorically observed that “the
investigation conducted smack of bias and prejudice under
influence of certain elements inimically placed vis-à-vis
the accused”. These observations, in our opinion, would
bring the present case within the realm of those cases
which are often described as cases of “no evidence”.
Merely because the Court ultimately used the term that
prosecution has failed to prove the case “beyond
reasonable doubt” would not raise the stature of the
evidence, produced by the prosecution, in this case from
the level of being thoroughly unreliable.
34. As noticed above, Mr. Calla has submitted that the
suspension of the petitioner should have been revoked
at this stage.
It will not be possible to accept the
proposition that as soon as the trial court had
acquitted the petitioner, the Rajasthan High Court was
required to forthwith revoke the order of suspension.
Undoubtedly,
the petitioner could have been given a non-
sensitive posting, not involving judicial functions.
But, it was not imperative for the High Court to revoke
the suspension, at that stage.
It is a matter of
record, that the prosecution agency decided to file an
appeal against the judgment and order passed by the
trial court, acquitting the petitioner. The appeal
filed by the CBI was admitted by the Delhi High Court
and remained pending till it was decided on 27th
September, 2005. Therefore, the conclusions recorded by
the trial court, were not final. They were liable to
be reversed in appeal by the High Court.
Thus, during
the said period/stage, it cannot be said that the
continuance of the suspension of the petitioner was
wholly unjustified.
Merely because the High Court could
have revoked the suspension, would not render the
decision to continue the suspension, wholly
unjustified.
35. The Rajasthan High Court was placed in a very piquant
situation till the petitioner’s acquittal was
reiterated by the Delhi High Court.
The High Court,
literally, had no option but to place and keep the
petitioner under suspension. It was not as if the
petitioner had unwittingly breached a traffic
regulation, which may not invite, even a frown from the
general public. It was also not where he may had a
minor altercation with someone which may well be
overlooked by a reasonable man, as it would not involve
any moral turpitude. He was facing a trial for the
offence of murder, a crime of highest moral turpitude.
Since time immemorial, Judges have been placed on a
very high pedestal in every civilized society. Such
high status is accompanied by corresponding
responsibility of a judge maintaining an unusually high
standard of dignity, poise and integrity. There can be
no two ways about it! Therefore, the decision of the
High Court to continue the suspension of the petitioner
can not be said to be wholly unjustified till his
acquittal by the Delhi High Court.
36. At this stage, we may just mention observations of this
Court in two decisions of this Court in relation to the
high standards of behaviour expected from a Judge. For
instance, in Daya Shankar Vs. High Court of Allahabad &
Ors. Through Registrar & Ors.[27], this court observed
as under:
“Judicial officer cannot have two standards, one in the
court and another outside the court. They must have only
one standard of rectitude, honesty and integrity. They
cannot act even remotely unworthy of the office they
occupy.”
Further, in the case of C. Ravichandran Iyer Vs.
Justice A.M. Bhattacharjee & Ors.,[28] again while
elucidating the nature of the position held by a judicial
officer, this Court observed as under:
“21. Judicial office is essentially a public trust.
Society is, therefore, entitled to expect that a Judge
must be a man of high integrity, honesty and required to
have moral vigour, ethical firmness and impervious to
corrupt or venial influences. He is required to keep most
exacting standards of propriety in judicial conduct. Any
conduct which tends to undermine public confidence in the
integrity and impartiality of the court would be
deleterious to the efficacy of judicial process. Society,
therefore, expects higher standards of conduct and
rectitude from a Judge......It is, therefore, a basic
requirement that a Judge's official and personal conduct
be free from impropriety; the same must be in tune with
the highest standard of propriety and probity. The
standard of conduct is higher than that expected of a
layman and also higher than that expected of an advocate.
In fact, even his private life must adhere to high
standards of probity and propriety, higher than those
deemed acceptable for others. Therefore, the Judge can
ill-afford to seek shelter from the fallen standard in
the society.”
37. The decision of the High Court to keep the petitioner
under suspension has to be judged by keeping the
aforesaid standards in mind. Therefore, we are unable
to accept the submission of Mr. Calla that the
suspension of the petitioner was wholly unjustified
after he was acquitted of the criminal charges by the
trial court.
38. We now come to
the stage after the appeal against the
acquittal was dismissed by the High Court.
It appears
that a Division Bench of the Delhi High Court re-
appreciated the entire evidence and dismissed the
appeal filed by the CBI. In its judgment, the High
Court has clearly held that the prosecution had failed
to prove any motive for the alleged murder. It is
noticed by the High Court that the entire prosecution
case is based on circumstantial evidence. It is
further observed that the injuries suffered by the
deceased were not inconsistent with the plea that it
was a case of accidental death. The High Court also
disbelieved the witnesses of the prosecution with
regard to the deceased having been “last seen” alive
with the petitioner. Having disbelieved the evidence
with regard to the motive and with regard to the victim
being “last seen” alive with the petitioner, the High
Court proceeded to examine the evidence with regard to
the disclosure statement under Section 27 and the
recoveries of incriminating pieces of evidence. Upon
examination of each issue, the High Court observed that
the facts brought on the record “put a question mark on
the genuineness of the story of the recoveries made”.
The High Court disbelieved the recovery of the clothes
allegedly belonging to the deceased. The story of
recovery of blood stains was also disbelieved.
Ultimately, the High Court recorded the following
conclusions:-
“43. In the present case, the major links between the
alleged offence and the accused are entirely non-
existent. The above discourse shows positively that the
prosecution has failed at every step to bring home the
guilt of the accused. The first step was to prove that it
was a case of murder rather than a case of accident. The
prosecution has failed to prove beyond reasonable doubt
that it was a case of murder and not that of an accident.
44. The second step was to prove that the accused and the
deceased were last seen together soon before the
incident. The prosecution has also failed to prove this
fact beyond reasonable doubt. Apart from what has already
been stated above an important fact in this case is that
post-mortem report along with
the CFSL report, Ex.PW-
34/DA proves existence of alcohol in the stomach of the
deceased. This tends to support the accident theory.
45. The third step was to prove that the prosecution had
recovered incriminating articles, either following the
disclosure statement or on its own initiative. The
prosecution has failed even at doing the same. In this
situation, even if the prosecution is able to prove
existence of motive, the same by itself would not be of
any value. The trial court has disbelieved the story of
motive. However, for us it is not necessary to go into
those details.
46. ………..The prosecution has failed to prove firstly that
there was any murder and secondly that the accused is the
one who committed it. There is absolutely no merit in the
appeal and the same is accordingly dismissed.”
39. The acquittal of the petitioner having been affirmed by
the High Court of Delhi, in our opinion, it was
necessary for the High Court of Rajasthan to take a
decision:
(a) whether to revoke the order of suspension
and permit the petitioner to perform judicial
functions;
b) whether to hold a departmental enquiry
with regard to the receipt of money allegedly received
by him from the deceased;
(c) as to how the period of
suspension was to be treated;
(d) whether the
petitioner was entitled to full salary, part salary or
no salary at all for the period of suspension.
40. It appears to us that given the findings recorded by
the trial court, subsequently reiterated by the High
Court of Delhi, the decision to continue the petitioner
under suspension, thereafter, was rather harsh.
It is
true that the suspension of the petitioner was
continued as the High Court had decided to hold a
departmental enquiry against the petitioner on the
charges that he had wrongly extracted certain money
from the deceased. But it is a matter of record that
both the trial court as well as the High Court had
found the entire story with regard to the alleged
receipt of money to be false. The enquiry was founded
on the same facts and the same evidence which have had
been examined by the trial court as well as the High
Court. In such circumstances, it was necessary for the
High Court to examine the findings of the trial court
as well as the High Court in detail before taking a
decision to initiate departmental proceedings against
the petitioner, founded on the same set of facts and
the evidence. It is apparent from the record that no
such examination of the judgment was undertaken by the
High Court. Even after taking a decision to initiate
departmental proceeding against the petitioner, it was
no longer imperative to continue the petitioner under
suspension. The petitioner was no longer charged with
any criminal offence as both the trial court as well as
the High Court had literally concluded that the charges
against the petitioner had been concocted. The
petitioner had been subjected to continued suspension
since 22nd December, 1985. During the period of
departmental proceedings, even if the petitioner was
not to be assigned any judicial work, the High Court
could have conveniently given him suitable posting on
the administrative side. In our opinion, from the time
of dismissal of the appeal by the Delhi High Court, the
continued suspension of the petitioner was wholly
unjustified.
41. Again it is a matter of record, that even in the
departmental enquiry the charges against the petitioner
were not proved and he was exonerated of the same. It
was only at that stage that the suspension of the
petitioner was revoked. The petitioner had already
moved the present writ petition immediately after the
order of acquittal was upheld by the Delhi High Court.
The enquiry proceedings were completed during the
pendency of the writ petition. Undoubtedly, the order
of suspension was revoked by the High Court
on 26th March, 2008 but without giving any direction
as to how the period of suspension was to be treated.
It was only subsequently that the matter with regard to
regularization of his period of suspension was
considered by the Full Court in the meeting held on
29th November, 2008. Even at that stage though the Full
Court passed a resolution that period of suspension
shall be treated as period spent on duty, but it was to
be without payment of any salary except for the
subsistence allowance already paid to him. On the basis
of the aforesaid resolution, the High Court passed the
order dated 24th January, 2009. So even by order dated
24th January, 2009, the petitioner was granted only
partial relief. This necessitated the amendment of the
writ petition by the petitioner questioning the
legality of the aforesaid order. It was only at that
stage that this Court by order dated 5th April, 2011
directed the High Court to pass appropriate orders
under Rule 54 of the Rules. It appears even at that
stage the High Court did not consider it necessary to
grant any further relief to the petitioner.
42. We are of the considered opinion, having regard to the
sequence of events narrated above, that it would be
unjust to deny the salary to the petitioner with effect
from the date the appeal against acquittal was
dismissed by the High Court of Delhi. We see no cogent
reason as to why it was necessary to continue the
suspension of the petitioner during the pendency of the
departmental proceedings. There was no distinction
between the facts or the evidence relied upon in the
criminal trial as well as the department proceedings.
This apart, the petitioner had been acquitted of any
involvement in the crime of murder. Whilst exercising
its jurisdiction under Rule 54, it was necessary for
the High Court to pass a detailed and reasoned order as
to whether the period of suspension was wholly
unjustified. Undoubtedly, the power under Rule 54 is
discretionary but such discretion has to be exercised
reasonably and by taking into consideration the
material relevant to the decision. Upon acquittal of
the petitioner from the criminal charges, it was no
longer necessary to keep him under suspension during
the pendency of the departmental enquiry. In our
opinion, the High Court failed to exercise its
jurisdiction properly under Rule 54, as directed by
this Court in the order dated 5th April, 2011. In our
opinion, the suspension of the petitioner ought to have
been revoked upon acquittal by the High Court even
during the pendency of the departmental enquiry.
43. This now leads us to the last submission of Mr. Calla
that upon exoneration in the departmental proceedings,
the petitioner was required to be considered for
promotion from the date a person junior to him was
promoted.
44. In view of the authoritative judgment rendered by this
Court in the case of Jankiraman (supra), the
submissions made by Mr. Calla would have to be
accepted. In the aforesaid judgment it was held that:-
“26. We are, therefore, broadly in agreement with the
finding of the Tribunal that when an employee is
completely exonerated meaning thereby that he is not
found blameworthy in the least and is not visited with
the penalty even of censure, he has to be given the
benefit of the salary of the higher post along with the
other benefits from the date on which he would have
normally been promoted but for the disciplinary/criminal
proceedings.”
45. In this case, it is a matter of record that upon
exoneration in the departmental enquiry, the petitioner
was reinstated in service. No punishment was inflicted
on him at all. However, during the pendency of the
criminal trial as also the departmental proceedings, he
was not considered for promotion, when the cases of
persons junior to him were considered. In our opinion,
the High Court erred in directing in the Full Court
Resolution dated 29th November, 2008, and the
communication dated 24th January, 2009 that the
petitioner shall not be entitled for any promotion.
46. We, therefore, partly allow the writ petition. We
reject the submissions of Mr. Calla that the suspension
of the petitioner was rendered wholly unjustified upon
acquittal by the trial court. We also reject the
submissions of Mr. Calla that the suspension of the
petitioner was wholly unjustified during the pendency
of the appeal before the High Court. We, however, hold
that the continued suspension of the petitioner during
the pendency of the departmental proceedings was wholly
unjustified. The petitioner is, therefore, held
entitled to full pay and allowances from 27th
September, 2005, i.e. the date of the judgment rendered
by the Delhi High Court onwards. We further hold that
the petitioner was entitled to be considered for
promotion notionally from the date when an officer
junior to him was promoted. We, therefore, direct the
High Court to consider the case of the petitioner for
promotion (if he otherwise satisfies the requirements
as per the rules) from the date when a person junior to
him was considered and promoted to the next higher
post. Let such a decision be taken by the High Court
within a period of three months from the date of
receipt of this order. We further direct that the
petitioner would be entitled to all consequential
benefits, such as salary and other allowances by
treating him on duty with effect from the date the
appeal against acquittal was dismissed by the Delhi
High Court and after fixing his last pay drawn
correctly. The consequential benefits shall be paid to
him with 6% interest from the date of the dismissal of
the appeal by the High Court on 27th September, 2005.
The enhanced retiral benefits shall be released to him
within three months of the receipt of a copy of this
order.
47. Assuming that, the Rajasthan High Court wanted to
conduct its own departmental enquiry after the
acquittal of the petitioner being confirmed by the
Delhi High Court, his suspension during that period was
wholly uncalled for because of which he unnecessarily
suffered and had to litigate further. We, therefore,
award costs of Rs. 25,000/- to the petitioner to be
borne by the respondent High Court.
..………………….….…....J.
[Surinder Singh Nijjar]
..………………….….…....J.
[H.L.Gokhale]
New Delhi;
November 27, 2012.
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[1] (1970) 2 SCC 462
[2] AIR (33) 1946 SIND 121
[3] (1933) 61 ILR 168
[4] (1981) 2 SCC 84
[5] (1987) 4 SCC 328
[6] (1964) 5 SCR 431
[7] (2006) 4 SCC 265
[8] (1981) 2 SCC 714
[9] (2007) 1 SCC 566
[10] (1976) Lab. I.C. 1403
[11] (1980) RLW 258
[12] (1991) 4 SCC 109
[13] (2007) 6 SCC 704
[14] 1994 Supp (3) SCC 674
[15] (2007) 6 SCC 524
[16] (2000) 6 SCC 698
[17] (1994) 1 SCC 541
[18] (1997) 3 SCC 636
[19] (1997) 9 SCC 36
[20] (2003) 2 SCC 386
[21] (2004) 1 SCC 121
[22] (2005) 8 SCC 747
[23] (2006) 9 SCC 172
[24] (2007) 1 SCC 324
[25] (2007) 10 SCC 561
[26] (2007) 11 SCC 632
[27] (1987) 3 SCC 1
[28] (1995) 5 SCC 457
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