UNION OF INDIA AND OTHERS Vs. GOVIND SINGH

JUDGEMENT

(1.) Moot question involved herein is as to whether the delinquent was justified in claiming all financial benefits pertaining to his service during the period when he was under suspension, particularly when the petitioners dropped the disciplinary proceeding as against him. The respondent Govind Singh was a Clerk in Government Senior Secondary School. He was charged with the offence of defalcation of a sum of Rs.4,37,882/- and misappropriation of the said sum during the period April, 1994 to September, 1994 misutilizing his position as a Cashier and Bill Clerk. He was immediately put under suspension, simultaneously with initiation of a criminal case. The criminal case resulted in acquittal principally for want of evidence. The vital witness being the Principal of the School died before the trial. Hence the prosecution was unable to produce any vital witness to support their case. The State preferred an appeal before the Division Bench of this Court. This Court dismissed the appeal by observing that no fruitful purpose would be served by remanding the matter back to the Sessions Judge for being heard afresh. The Division Bench observed, "The prosecution was not at all vigilant in pursuing its case and in view of the evidence of the principal witnesses already examined by the prosecution it would be mere guess work to conclude that in the event the other witnesses were allowed to be examined the result would have been otherwise".

(2.) Pertinent to note, the incident happened in 1994, since then the matter was dragged. The charge was framed on February 26, 2001. The examination of the witnesses commenced only on November 29, 2007. The learned Chief Judicial Magistrate closed the case in early 2008. The Division Bench dismissed the appeal vide judgement and order dated January 14, 2010. The authority, however, kept the delinquent under suspension in contemplation of a departmental proceeding. The Administration subsequently revoked the suspension vide an order dated July 30, 2004. He joined his duty with effect from September 01, 2004 and ultimately retired from service with effect from May 31, 2007. After his retirement the authority prayed for necessary sanction from His Excellency, the Hon'ble President to proceed against him departmentally by initiation of disciplinary proceeding. However, they were unsuccessful. Thus, the issue reached finality as the delinquent's order of suspension was revoked after about 10 years and he was allowed to join his duty and was allowed to retire on reaching the natural date of superannuation. The present controversy relates to his promotion that was considered by the Departmental Promotional Committee (DPC) as far back in 1996. Since he was under suspension and the disciplinary proceeding was in contemplation, the DPC considered his case and kept it under a sealed cover. After his retirement the respondent herein filed an application before the Tribunal for appropriate benefit as a consequence of his retirement. The respondent herein filed OA No.202/AN/2008. The Tribunal disposed of the said application by directing the respondent authority to consider his representation with regard to the promotion by opening the sealed cover. In terms of the order of the Tribunal the authority passed a reasoned order on June 24, 2010 to the effect that the authority decided not to initiate further disciplinary proceeding against the charged officer and to drop/close the criminal/disciplinary cases against him. The competent authority also ordered that the period of suspension from September 12, 1994 till the date of his resumption of duty on revocation of suspension would be treated as duty for all purposes including pension etc. The authority by further order dated August 4, 2010 held that as per the review DPC he would be given the notional promotion in the post of Head Clerk. However, he would not be entitled to payment of arrears on account of his promotion till the date of his reinstatement in service on September 01, 2004. The authority directed release of full arrears of pay and allowances on and from September 01, 2004 till his date of retirement. Being aggrieved, the respondent herein challenged the said orders inter alia praying for setting aside and/or quashing the order dated August 4, 2010 in so far it relates to non-payment of arrear service benefit. In effect, he challenged denial of actual payment in the promotional post for the period when he was put under suspension. The Tribunal heard the matter and disposed of the same vide judgement and order dated February 18, 2011 inter alia setting aside the order denying him the payment as aforesaid and directed the respondent authority to make the payment along with interest @9% p.a. beyond the period of three months from the date of receipt of the order. Being aggrieved, the authority filed the instant application before us that was heard by us on the abovementioned dates. Mr. Tabraiz, learned counsel appearing for the authority contended before us that the charges were serious in nature. However, due to unfortunate death of the Principal of the school the authority could not prove the charges before the Criminal Court. The Criminal Court acquitted the delinquent for want of evidence. The authority wanted to proceed against him departmentally. They waited for final adjudication in the criminal case, however, the delinquent retired in the meantime. The authority prayed for necessary sanction but were unsuccessful and as such they decided to drop the proceeding. However, once the proceeding was dropped the respondent herein was not entitled to all pecuniary benefits as a matter of right attached to the promotional post. Mr. Tabraiz relied upon the procedure to be followed after reinstatement. According to him, if an order of acquittal was recorded on grounds of technical flaw of the prosecution such acquittal could not be equated with exoneration on merit and the authority was entitled to decide as to the extent of pecuniary benefit to be allowed to the delinquent. He relied upon the office memorandum dated September 14, 1990 wherein it was categorically provided that the authority was entitled to deny arrears salary in case of reinstatement after recording reasons therefor. Relying on the said office memorandum Mr. Tabraiz contended that review DPC was held on July 7, 2010 wherein the DPC granted him the promotional benefit notionally up to the period of suspension. The DPC also recorded the reasons as would appear from the minutes of the meeting held by the DPC on review. A copy of the same as produced in Court be kept on record. Mr. Tabraiz lastly relied upon the Apex Court decision in the case of Union of India v. K.V. Jankiraman, 1991 AIR(SC) 2010 . On perusal of the said decision of the Apex Court we find that in the said case (Civil Appeal no.51-55 of 1990) disciplinary proceeding as well as criminal prosecution were launched against the delinquent for lodging false claim utilizing false document to support them. The employees were suspended. They pleaded revocation of their suspension on depositing the amount. They were reinstated in service keeping in view the voluntary deposit. The authority took a lenient view and dropped the criminal prosecution without prejudice to the departmental proceedings which were subsequently initiated by issuance of formal charge sheet. In the meantime DPC was held to consider the delinquent for promotion and resorted to a sealed cover procedure. In this backdrop, the Apex Court observed that if the sealed cover entitled the employees to promotion it would be given to them without any arrears of salary. Per contra, Mr. A.K. Chakraborty, learned counsel appearing for the delinquent contended that once the sealed cover procedure was adopted the delinquent was entitled to all benefits of the promotion since no disciplinary proceeding was initiated. The Tribunal very rightly allowed the same that did not deserve any interference by this Court. Before we deal with the present controversy, we would unhesitatingly agree with Mr. Tabraiz that the Tribunal ought to have assigned reasons before allowing the delinquent the benefit of arrear salaries in the promotional post. We are constrained to observe that such exercise was not undertaken. The Tribunal relied upon FR 54(B) and observed that where the authority competent to order reinstatement was of the opinion that the suspension was wholly unjustified, the delinquent would be entitled to full pay and allowance. The Tribunal also relied upon the proviso that stipulated denial of such benefit when termination of proceeding had been delayed due to reasons attributable to the delinquent. However, such denial must be done upon giving an opportunity of being heard. The Tribunal also relied upon extension of benefit in case of a minor penalty being imposed as per Sub-rule (4.) The issue so highlighted above, was however not addressed. We, however, do not intend to remand this matter back to the Tribunal as we already heard the parties on merits. Coming to the factual matrix and bringing it in a narrow campus we would find that the delinquent was suspended in 1994. He was considered for promotion in 1996 and such promotion was kept under a sealed cover in contemplation of a departmental proceeding that never saw the light of the day. The authority revoked the suspension in 2004 and allowed the delinquent to serve the State till his natural date of superannuation in 2007. Once the suspension was withdrawn, disciplinary proceeding was not initiated and/or dropped the sealed cover must be open. Since he was successful in getting the promotion the promotion must relate back to the date when his juniors got the promotion. It is true that he did not serve the authority for 10 years between 1994-2004. Such non-functioning was not attributable to him.

(3.) The authority in their wisdom kept him under suspension for 10 years and then withdrew the same. There is no reason why he would not get the promotion with retrospective effect from the date when his juniors got the promotion. With regard to extension of financial benefit attached to the promotional post we are of the view that there was no earthly reason why he should be denied such benefit. The authority sought to assign reason as we find from the minutes of the review DPC, that the delinquent was charged for defalcation of Government fund that was never proved. In this regard, we may rely on the observation of the other Division Bench while dismissing the criminal appeal filed by the prosecution against the acquittal. We are of the considered opinion that the judgement and order of acquittal as merged in the order of the Division Bench while dismissing the appeal, could not be said to be an acquittal on technical flaw. In such view of the matter, it would be travesty of justice to deny him the pecuniary benefit attached to the promotion that was wrongly withheld for 14 years. The authority gave the benefit for last three years when he was allowed to serve the State. The period of suspension was however not taken into account while extending the pecuniary benefit. The matter may be looked at from another angle. Once the suspension was revoked and the proceeding was never initiated it would be deemed that there was no proceeding at all as against him, so was the suspension. Hence, he was automatically entitled to the promotion that DPC considered in 1996. Authority did not allow him to join the promotional post for 14 years without any plausible reasons. Hence, the authority was not entitled to deny him the financial benefit attached to the same.