Dr. R.S. Senger vs State Of Chhattisgarh

Heard Mr. Jai Prakash Shukla, learned counsel for the appellant. Also heard Mr. Jitendra Pali, learned Deputy Advocate General, appearing for the respondents.

The appeal is presented against an order dated 19.06.2019 passed by the learned Single Judge in Writ Petition (S) No. 4325 of 2019, dismissing the writ petition.

The appellant is an Ophthalmologist. The appellant, while working as Post Graduate Medical Officer (PGMO) at District Hospital Baikunthpur, was arrested on 18.08.1994 under Sections 420, 467, 468, 409 and 120-B of the Indian Penal Code and Sections 7, 8, 9 of the Prevention of Corruption Act, 1988 (for short, 'Act of 1988') and Sections 3A, 3B and 4 of MP Affiliated Examination Act, 1937 (for short, 'Act of 1937'), on the allegation of leaking Pre-Medical Text (PMT) question papers. By an order dated 18.08.1994, the appellant came to be suspended because of such arrest.

It is relevant to state that in Special Crime No. 6/1994, by judgment dated 30.08.2003, the learned First Additional Session Judge and Special Judge acquitted the appellant. It is also relevant to take note of the fact that in the said Special Crime No. 6/1994 there were as many as 10 accused persons.

It also appears that a charge-sheet was issued on 10.01.1997.

However, Mr. Pali submits that apart from issuing the charge-sheet, no other steps had been taken in the said disciplinary proceeding as a result of which for all intents and purposes it must be deemed that the disciplinary proceeding was dropped.

By an order dated 30.03.2007, in view of acquittal of the appellant in Special Crime No. 6/1994, suspension was revoked.

The writ petition was filed by the appellant praying for direction to pay full salary during the period of suspension and to fix the salary as per recommendation of 6th Pay Commission and to extend the benefits accordingly.

Claim for fixation of salary on the basis of recommendation of 6th Pay Commission was made on the basis that the appellant was being paid salary as fixed under the recommendation of the 5th Pay Commission.

In the appeal, it is stated that even though 7th Pay Commission recommendation had also come into effect, the appellant was still being paid salary on the basis of pay fixed on the basis of recommendation on the 5th Pay Commission and accordingly, had prayed for fixation of salary on the basis of 7th Pay Commission recommendation as well.

The learned Single Judge rejected the claim of the appellant on the ground of delay and laches, as the writ petition was filed after more than 12 years of his reinstatement. The learned Single Judge also observed that even otherwise there was no merit in the writ petition as the appellant was involved in a criminal case which was sufficient enough to place him under suspension.

This case was heard-in-part on 03.12.2022 and on that day this Court had passed the following order:

"Mr. Jai Prakash Shukla, learned counsel for the appellant submits that the only issue that is surviving for consideration in this appeal is as to whether the appellant would be entitled to full pay and allowances during the period of suspension.

He submits that if the answer is in the affirmative, a direction to the respondents authorities to re-compute the fixation of salary, which was based on recommendation of 6th and 7th pay commission, would be called for, in as much as such computation had been effected on the basis of subsistence allowance paid to the petitioner.

Heard-in-part.

List this case in part-I hearing list on 13.12.2022 on the top of the list.

Mr. Raghavendra Pradhan, learned Additional Advocate General, appearing for the respondents, is present."

Mr. Shukla submits that the appellant having been acquitted of the criminal charges, it must be held that the suspension of appellant was unjustified, and therefore, in absence of any disciplinary proceeding being concluded, denial of full salary for the period of suspension would be wholly arbitrary and illegal. He has submitted that though there was some delay in approaching the Court to ventilate his grievances, the appellant had been pursuing his remedy before the authorities by way of filing of representations and only when it became apparent that such representations have fallen in deaf ears, the appellant had taken recourse to filing of the writ petition. It is also submitted by him that the observation of the learned Single Judge that immediately after acquittal of the appellant, he was reinstated is factually incorrect inasmuch as it took nearly 3½ years for the authorities to reinstate the appellant after his acquittal, and therefore, in any event the appellant would be entitled to full salary from the date of his acquittal till the date of revocation of the order of suspension.

Mr. Pali has submitted that as the appellant was involved in a crime, he had disabled himself from rendering any services at the first instance as he was arrested and merely because subsequently, he was acquitted on benefit of doubt, the same would not entitle him to claim back-wages. He has, however, fairly submitted that there was no justification for not reinstating the appellant immediately after acquittal earned by the appellant.

We have considered the submissions of the learned counsel for the parties and have perused the materials on record.

No doubt, there was delay in approaching the Court by the appellant. There is no satisfactory explanation other than filing of representations repeatedly by the appellant. However, taking note of the fact that the appellant was acquitted in the criminal case, albeit, on benefit of doubt, and that the authorities themselves had not taken any action immediately on such acquittal by way of reinstating the appellant and also having regard to the fact that the disciplinary proceedings initiated against the appellant was abandoned, we are of the opinion that it will be inequitable to dismiss the writ petition solely on the ground of delay and laches.

We find sufficient force in the argument of Mr. Pali that from the date of suspension to date of acquittal the appellant cannot claim, as a matter of right, full salary.

Though Mr. Shukla sought to contend that the appellant was honorably acquitted, perusal of the judgment would go to show that the prosecution failed to prove the guilt of the accused beyond reasonable doubt and as such, benefit of doubt was accorded to the appellant and other accused persons.

In that view of the matter, directing the authorities to make full payment of salary for the period from 18.08.1994 to 30.08.2003 does not arise.

There is no explanation whatsoever as to why the authorities took

3½ long years in reinstating the appellant. There was no impediment for taking the service of the appellant and the appellant was arbitrarily prevented from discharging his duties after he had earned his acquittal.

In that view of the matter, we are of the considered opinion that the appellant is entitled to full pay and allowances for the period from 30.08.2003 to 17.04.2007, i.e., the date on which the appellant resumed his duties. Ordered accordingly.

A consequential direction is also issued to the authorities to re-compute the salary of the appellant based on the 6th and 7th Pay Commission recommendations, as for the aforesaid period, only the subsistence allowance was reckoned for the purpose of such computation.

The aforesaid directions would be complied with within a period of 3 months from the date of receipt of a certified copy of this order.

The writ appeal stands partly allowed. No cost.