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’.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.12326 OF 2017
Eknath Shankar Kamble Vs Chief Executive Officer,
CORAM: N.J.JAMADAR, J.
PRONOUNCED ON : 8 JUNE 2023
1. Rule. Rule made returnable forthwith. With the consent of the learned
Counsel for the parties, the Petition is heard finally.
2. This Petition under Article 227 of the Constitution of India, assails the
legality, propriety and correctness of the judgment and order dated 15 March 2017
passed by the learned Member, Industrial Court at Sangli, in Complaint (ULP) No.163
of 2014, whereby the learned Member, Industrial Court, was persuaded to dismiss the
Complaint.
3. Shorn of superfluities, the background facts can be stated as under :
3.1 On 17 July 1978, the Petitioner was appointed as a Tracer with the Zilla
Parishad, Sangli. On 18 October 2001, while the Petitioner was posted at Panchayat
Samiti, Jat, the Petitioner came to be apprehended by Anti-Corruption Bureau with
the allegation that the Petitioner had demanded and accepted an amount of Rs.500/-
as illegal gratification. The Petitioner was placed under suspension with effect from
18 October 2001. He was prosecuted for the offence punishable under Sections 7,
13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 in Special
Criminal Case No.4 of 2002.
3.2 During the pendency of the trial in Special Criminal Case No.4 of 2002,
the Respondent No.1 vide notice dated 17 October 2005, proposed to compulsorily
retire the Petitioner from service with effect from 15 January 2006. A complaint of
unfair labour practice, being Complaint (ULP) No.1 of 2006, preferred by the
Petitioner thereagainst came to be dismissed on 2 September 2009.
3.3 In the meanwhile, the Petitioner was acquitted in Special Criminal Case
No.4 of 2002 by the learned Special Judge, Sangli by a judgment and order dated 28
3.4 Post acquittal, the Petitioner approached Respondent No.1 for full retiral
benefits. A notice was issued to the Petitioner under Rule 72(5) of the Maharashtra
Civil Services ( Joining Time, Foreign Service, Payments during Suspension,
Dismissal and Removal) Rules, 1981 (the Suspension Rules, 1981). The Petitioner
gave an explanation on 27 October 2009. Respondent No.1 by an order dated 11
January 2010, directed that the suspension period from 18 October 2001 to 16 January
2006, be treated as suspension period.
3.5 The Petitioner preferred an appeal before the Divisional Commissioner.
By an order dated 19 December 2012, the Additional Divisional Commissioner, Pune,
dismissed the appeal and confirmed the order passed by the Chief Executive Officer,
Zilla Parishad, Sangli.
3.6 The Petitioner, thus, approached the Industrial Court with a Complaint
of unfair labour practice under Items 9 and 10 of Schedule IV of the Maharashtra
Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (the
Act, 1971). It was alleged, inter alia, that the Respondent No.1 indulged in unfair
labour practice by not treating the suspension period as the period spent on duty
despite acquittal of the Petitioner in Special Criminal Case No.4 of 2002 and not
granting the retiral benefits on the premise that the Petitioner retired from service on
16 January 2006.
3.7 By the impugned judgment and order 15 March 2017, the learned
Member, Industrial Court, was persuaded to dismiss the Complaint opining that the
Petitioner was acquitted of the offences punishable under Sections 7, 13(1)(d) read
with Section 13(2) of the Prevention of Corruption Act, 1988 in Special Criminal Case
No.4 of 2002 by extending the benefit of doubt and it was not a case of honourable
acquittal or complete exoneration. The learned Member was of the view that the
Respondent No.1 arrived at a justifiable finding that the suspension of the Petitioner
was not wholly unjustified as the Petitioner had not given any satisfactory explanation
regarding the acceptance of an amount of Rs.500/- by way of illegal gratification and
the acquittal was also on technical ground.
4. I have heard Mr. Pise, learned Counsel for the Petitioner and Mr.
Modak, learned Counsel for the Respondent No.1 and Mrs. Nimbalkar, learned AGP
for Respondent Nos.2 and 3. I have also perused the material on record, including the
judgment and order delivered by the learned Special Judge in Special Case No.4 of
2002.
5. Mr. Pise, learned Counsel for the Petitioner submitted that the learned
Member, Industrial Court, lost sight of the fact that no disciplinary inquiry was
instituted against the Petitioner. It was thus not a case that the disciplinary authority
had arrived at an independent finding about the alleged misconduct de hors the
acquittal of the Petitioner in criminal case on the same set of facts. In this view of the
matter, according to Mr. Pise, the Petitioner could not have been deprived of the
benefit of treating the period of suspension as the period spent on duty post acquittal
in the criminal case. Mr. Pise would urge with a degree of vehemence that the
employer, appellate authority as well as the Industrial Court fell in error in arriving at a
finding that the Petitioner’s acquittal was by extending the benefit. It was strenuously
urged that if the judgment delivered by the learned Special Judge is read as a whole, it
becomes abundantly clear that the Petitioner was acquitted on merits in as much as the
learned Judge recorded a finding that the twin factors of demand and acceptance were
not proved. In such circumstances, the authorities were not justified in declining to
treat the period of suspension as the period spent on duty, submitted Mr Pise.
6. To lend support to the aforesaid submissions, Mr. Pise placed reliance
on the judgment of this Court in the case of Commissioner, Amravati Municipal
Corporation V/s. B.S.Sawai1 and the order passed by this Court in Manohar
Shankar Dhoke V/s. The Chief Executive Officer and Anr.2
7. Per contra, Mr. Modak, learned Counsel for the Respondent No.1,
would submit that the Respondent No.1 was justified in ordering that the period of
suspension be treated as such. In the backdrop of the nature of the accusation against
the Petitioner, the suspension cannot be termed as wholly unjustifiable. The action of
Respondent No.1 was, according to Mr. Modak, in conformity with the provisions
1 2020 0 Supreme (Bom) 220
2 WP 172 of 2018 (Nagpur Bench)
contained in Rule 72 of the Suspension Rules, 1981. Taking the Court through the
observations in the judgment of the Special Court in Special Case No.4 of 2002, Mr.
Modak would urge that, at more than one place, the learned Special Judge made it
clear that the guilt of the accused (Petitioner) could not be established beyond
reasonable doubt. It, therefore, cannot be urged that the accused has been honourably
acquitted, entitling him to full back wages and retiral benefits.
8. Mr. Modak submitted that it is fairly well-recognized that in the event of
acquittal by extending benefit of doubt, an employee is not entitled to be automatically
either reinstated or paid full benefits where superannuated. To bolster up this
submission, the learned Counsel for Respondent No.1 placed reliance on two Division
Bench judgments of this Court in the cases of Ravindra Prasad Munneshwar Prasad
V/s. Union of India an Ors.3 and Sanjay Kumar Rai V/s. Union of India and Ors.4
9. The learned AGP, on her part, supported the impugned judgment and
order and the orders passed by the authorities below.
10. The aforesaid submissions now fall for consideration.
11. The factual backdrop is rather incontrovertible. The Petitioner was
placed under suspension after he was apprehended by the Anti Corruption Bureau
while allegedly accepting bribe of Rs.500/-, on 18 October 2001. During the
pendency of Special Case No.4 of 2022, the Petitioner came to be compulsorily retired
3 2022 SCC Online Bom 682
4 2016 SCC Online Bom 5288
with effect from 5 January 2006. Eventually, the Petitioner came to be acquitted of all
the offences punishable under Sections 7, 13(1)(d) read with Section 13(2) of the
Prevention of Corruption Act, 1988 by a judgment and order dated 28 April 2009. A
show cause notice was given to the Petitioner on 2 September 2009. An explanation
was furnished by the Petitioner on 27 October 2009. By an order dated 11 January
2010, the Respondent No.1 directed that the suspension period i.e. 18 October 2001 to
16 January 2006 be treated as such. Is it justifiable ?
12. The nature of the alleged misconduct is of salience. In the case at hand,
the allegation against the Petitioner was that the Petitioner demanded and accepted an
amount of Rs.500/- by way of illegal gratification for forwarding a proposal of the
Complainant in Special Case No.4 of 2002 to Zilla Parishad, Sangli, for enhancement
in the rent of the house premises which was taken on lease by the Zilla Parishad to run
a school therein.
13. It is trite, in respect of one and the same act of misconduct, a
disciplinary proceeding and a prosecution can proceed simultaneously. However, if
the disciplinary proceeding and prosecution are based on an identical and similar set
of facts and the charge in the criminal case against the delinquent is of grave nature,
which involves complicated questions of law and facts, it is considered desirable not to
proceed with the disciplinary proceeding till the conclusion of the criminal case. It is
also equally well recognized that the acquittal of an employee in a prosecution does
not ipso facto either terminate the disciplinary proceeding or preclude the disciplinary
authority from initiating the disciplinary proceeding. Undoubtedly, these questions
are, by their very nature, rooted in facts and cannot be confined in a straight jacket.
14. In the facts of the case at hand, indisputably, no independent disciplinary
proceeding was initiated against the Petitioner and the Petitioner was compulsorily
retired from service by invoking the power to retire an employee in public interest.
After the acquittal of the Petitioner in Special Case No.4 of 2002, the question of
treating the suspension period as such or the period spent on duty, thus, cropped up
for consideration.
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 :
“72. Re-instatement of a Government servant after suspension and
specific order of the competent authority regarding pay and allowances etc.,
and treatment of period as spent on duty – (1) When a Government servant
who has been suspended is reinstated or would have been so reinstated but
for his retirement on superannuation while under suspension, the authority
competent to order reinstatement shall consider and make a specific order -
(a) regarding the pay and allowances to be paid to the Government
servant for the period of suspension ending with reinstatement 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 reinstatement 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 fully 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 reasons directly attributable to the Government
servant, it may, after giving him an opportunity to make his representation
within sixty days from the date on which the communication in this regard is
served on 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 the period of such delay only such amount (not
being the whole) of such pay and allowances as it may determine.
(4) In a case falling under sub-rule (3), the period of suspension shall
be treated as a period spent on duty for all purposes.
(5) In cases other than those falling under sub-rules (2) and (3), the
Government servant shall, subject to the provisions of sub-rules (8) and (9),
be paid such amount (not being the whole) of the pay and allowances to
which he would have been entitled, had he not been suspended, as the
competent authority may determine, after giving notice to the Government
servant of the quantum proposed and after considering the representation, if
any, submitted by him in that connection within such period which in no
case shall exceed sixty days from the date on which the notice has been
served, as may be specified in the notice.
(7) In a case falling under sub-rule (5), the period of suspension shall
not be treated as a period spent on duty, unless the competent authority
specifically directs that it shall be so treated for any specified purpose :
Provided that if the Government servant so desires, such
authority may order that the period of suspension shall be converted into
leave of any kind due and admissible to the Government servant.
Note – The order of the competent authority under the
preceding proviso shall be absolute and no higher sanction shall be necessary
for the grant of -
(a) extraordinary leave in excess of three months in the case
of a temporary Government servant; and
(b) leave of any kind in excess of five years in the case of
permanent Government servant.”
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,
5 (1997) 3 SCC 636
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. Samuthiram6 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 :
“24. The meaning of the expression ‘honourable acquittal’ came up for
consideration before this Court in RBI V/s. Bhopal Singh Panchal7. In that
case, this Court has considered the impact of Regulation 46(4) dealing with
honourable acquittal by a criminal court on the disciplinary proceedings. In
that context, this Court held that the mere acquittal does not entitle an
employee to reinstatement in service, the acquittal, it was held, has to be
honourable. The expressions ‘honourable acquittal’, ‘acquitted of blame’,
‘fully exonerated’ are unknown to the Code of Criminal Procedure or the
Penal Code, which are coined by judicial pronouncements. It is difficult to
define precisely what is meant by the expression ‘honourably acquitted’.
When the accused is acquitted after full consideration of prosecution
evidence and that the prosecution had miserably failed to prove the charges
levelled against the accused, it can possibly be said that the accused was
honourably acquitted.
26. As we have already indicated, in the absence of any provision in
the service rule for reinstatement, if an employee is honourably acquitted by
a Criminal Court, no right is conferred on the employee to claim any benefit
including reinstatement. Reason is that the standard of proof required for
holding a person guilty by a criminal court and the enquiry conducted by
way of disciplinary proceeding is entirely different. In a criminal case, the
onus of establishing the guilt of the accused is on the prosecution and if it
fails to establish the guilt beyond reasonable doubt, the accused is assumed
to be innocent. It is settled law that the strict burden of proof required to
establish guilt in a criminal court is not required in a disciplinary
proceedings and preponderance of probabilities is sufficient. There may be
6 (2013) 1 SCC 598
7 (1994) 1 SCC 541
cases where a person is acquitted for technical reasons or the prosecution
giving up other witnesses since few of the other witnesses turned hostile etc.
In the case on hand the prosecution did not take steps to examine many of
the crucial witnesses on the ground that the complainant and his wife turned
hostile. The court, therefore, acquitted the accused giving the benefit of
doubt. We are not prepared to say in the instant case, the respondent was
honourably acquitted by the criminal court and even if it is so, he is not
entitled to claim reinstatement since the Tamil Nadu Service Rules do not
provide so.” (emphasis supplied)
21. In a recent pronouncement in the case of Union of India and Ors. V/s.
Methu Meda8 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 :
“12. In view of the above, if the acquittal is directed by the court on
consideration of facts and material evidence on record with the finding of
false implication or the finding that the guilt had not been proved, accepting
the explanation of accused as just, it be treated as honourable acquittal. In
other words, if prosecution could not prove the guilt for other reasons and
not ‘honourably’ acquitted by the Court, it be treated other than
‘honourable’, and proceedings may follow.
13. The expression ‘honourable acquittal’ has been considered in the
case of S. Samuthiram (supra) after considering the judgments of RBI V/s.
Bhopal Singh Panchal (supra), and R.P.Kapur9, Raghava Rajgopalchari10; this
Court observed that the standard of proof required for holding a person
8 (2022) 1 SCC 1
9 AIR 1964 SC 787
10 1967 SCC Online SC 1
guilty by a criminal court and enquiry conducted by way of disciplinary
proceeding is entirely different. In a criminal case, the onus of establishing
guilt of the accused is on the prosecution, until proved beyond reasonable
doubt. In case, the prosecution failed to take steps to examine crucial
witnesses or the witnesses turned hostile, such acquittal would fall within
the purview of giving benefit of doubt and the accused cannot be treated as
honourably acquitted by the criminal court. While, in a case of departmental
proceedings, the guilt may be proved on the basis of preponderance and
probabilities, it is thus observed that acquittal giving benefit of doubt would
not automatically lead to reinstatement of candidate unless the rules provide
so.”
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 :
“23. It is further submitted that ACB Officer Surve himself has carried out the
investigation. In this regard, he has attracted my attention to the following
observations made in the case Tryambak Binnar V. State of Maharashtra
reported in 2002 Cri.L.J. 3059 (Bombay High Court) :
“Another aspect of the matter is in such a situation the entire
investigation is conducted by the same Inspector who arranged the trap and lodged the
FIR. Normally, investigation is not to be conducted by the person who lodges a
complaint because he is interested in the success of his complaint.”
and submitted that Survey, who is complainant in this case, has
carried out the investigation. However, in view of aforesaid observation,
complainant Surve cannot be an investigating officer and, therefore, considering
this lacuna, benefit goes to the accused.
24. I am convinced that there is inconsistency in the evidence of complainant
and panch witness. It is important to note that complainant himself was aware
that accused was not concerned with the sending the proposal to Z.P.Sangli for
fixing the rent. The acceptance of bribe and its recovery is not proved by the
prosecution beyond doubt. I have already pointed out that the evidence of
complainant and panch witness regarding the demand of bribe by the accused
found to be untrustworthy and not inspiring confidence, therefore, mere
recovery of powdered currency note from the accused, it cannot be considered
as a circumstance pointing the guilt of the accused.”
25. It is seen that Govindraj, the then Chief Executive Officer has issued a
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 :
“11. The learned Advocate for the Corporation takes exception to the
observations made by the Industrial Tribunal in the impugned award that the
employee was honourably acquitted. I find that though the said contention
is correct, the fact that the employee was acquitted for the offences alleged to
have been committed by him on account of lack of evidence, would not
change the situation. His acquittal would remain an acquittal until the
Petitioner can point out any provision of law that a person who is acquitted
on account of benefit of doubt, would be disentitled from service benefits or
reinstatement in service.
12. Considering the above, the Industrial Court has rightly concluded that
the suspension period of the employee deserves to be converted into regular
employment.”
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 :
“6. No doubt, in the instant matter, the judgment of acquittal of the
petitioner dated 16.11.2013 in para 17 records that the benefit of doubt should
be given to the petitioner, however, such an observation is made on the basis
of the fact that the evidence tendered by the prosecution contains material
omissions, due to which the issues as framed were answered in negative and
the petitioner was acquitted of the charges, as framed against him. This
would clearly indicate that the prosecution failed to bring home the guilt of
the accused by necessary and cogent evidence, as required by law. That
being the position, a stray observation in the judgment dated 16.11.2013
cannot be construed to mean that the acquittal of the petitioner was not a
clean acquittal, but was on account of any benefit of doubt.
7. That apart, there is another factor which has not been considered. It is
an admitted position that the petitioner was also subjected to a departmental
enquiry on account of his facing a prosecution in Criminal Case No.280 of
2012, in which, the Petitioner was placed under suspension on 20.3.2012 and
the departmental enquiry continued, which resulted in his being exonerated,
leading to his reinstatement on 29.4.2014. Thus, if the misconduct of the
petitioner was of the nature which would require punishment to be imposed
upon him, it could have been done under the departmental enquiry. The
exoneration of the petitioner in the departmental enquiry clearly adds to the
benefit of the petitioner. In case of Krishinikant Bibhavnekar (supra), the
issue of initiation and exoneration of the delinquent in a departmental
enquiry was not under consideration, which is why it has been indicated that
the initiation of a departmental enquiry was one of the course which could
have been adopted.”
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.
(viii)In the circumstances of the case, there shall be no order as to costs.
( N.J.JAMADAR, J. )
No comments:
Post a Comment