S. Kamatchi vs Tamil Nadu State Transport Department

Ramanujam, J.—This writ appeal is directed against the order of Mohan, J., dismissing W.P. No. 574 of 1977 filed by the appellant seeking

a writ of certiorari to quash the order dated 7th February, 1975 of the Joint Director, Tamil Nadu State Transport Department.

The said order, dated 7th February, 1975 of the Joint Director came to be passed in the following circumstances : The appellant was originally

working as a driver in the Tamil Nadu State Transport Department. Thereafter, his services have been lent to the Pallavan Transport Corporation,

as the appellant exercised his option in April, 1976, to serve under the said Corporation, while serving the Transport Department. On 22nd

August, 1970 at about 6.30 a.m. the bus driven by the appellant in route No. 32, met with an accident with five cyclists as a result of which two of

the cyclists died on the spot and several others injured and the bus was also considerably damaged. There was a departmental investigation in

relation to the accident and the investigation revealed that the appellant was rash and negligent in driving the bus, and that the accident was the

result of his rash and negligent driving. He was therefore suspended from service pending enquiry on 24th August, 1970. Thereafter, a show cause

notice was issued on 28th September, 1970 asking the appellant to show cause why (1) disciplinary action should not be taken against him, (2) the

cost of damages to fleet No. 737 amounting to Rs. 400 should not be recovered from him, and (3) compensation to third parties, if any, paid as

and when claimed within the period of three years from the date of the accident should not be recovered from him if he is found guilty and

negligent. After getting an explanation from the appellant on 3rd October, 1979 wherein the appellant had stated that he was not responsible for

the accident and that the accident was due to the mechanical defect in the vehicle, there was a departmental enquiry by the Traffic Superintendent,

who held that the guilt of the appellant was proved beyond any doubt. Based on that enquiry report, a memo containing a provisional conclusion

was issued to the appellant calling upon him to show cause why the provisional conclusion of removal from service should not be given effect to.

The appellant made his representations to the provisional conclusion memo. In the meanwhile, the appellant was convicted and sentenced to

undergo R.I. for one year by Third Presidency Magistrate, C.C. No. 48724 of 1980. The appellant filed an appeal against the said criminal court

judgment before the High Court. He therefore, requested the disciplinary authority to wait till the High Court disposed of the appeal filed by him.

However, the Director, by a letter dated 29th June, 1973 issued a further notice proposing to dismiss the appellant from service on the basis of

conviction by the Criminal Court. After getting a representation from him he was dismissed from service on 7th December, 1973. Subsequently, in

the appeal filed by him before the High Court, the appellant was acquitted. In view of the said acquittal, the appellant was reinstated in service from

23rd March, 1974, and the appellant reported for duty on 8th April, 1974.

Thereafter, the appellant claimed for regularisation of the period during which he was out of employment as on duty so that he can claim the full

salary payable to him for the period of absence from duty. That request of the appellant was considered by the Director and a show cause notice

was issued to the appellant directing him to show cause as to why the period of non-employment should not be treated as leave of any kind due

and admissible to him under Fundamental Rule 54(5). To the said show cause notice, the appellant caused a lawyer''s notice to be sent wherein it

has been stated that the appellant is entitled to claim all dues he is entitled to received as if he has been on duty during the relevant period.

However, the Director passed the impugned order, dated 7th February, 1975 holding that the appellant''s case falls under Fundamental Rule 54(2)

read with Fundamental Rule 54(4), that the acquittal in the case of the appellant is no the basis of the poor evidence let in by the prosecution, that

by his thoughtless driving he has knocked down five cyclists and dashed his bus against masonry construction resulting in two of the cyclists being

killed on the spot and causing injuries to as many as 26 passengers and heavy damages to the vehicle, that he cannot disclaim responsibility for

such a gruesome accident and that as such the period of suspension is treated as leave to which he will be eligible under sub-R. (5) of Fundamental

Rule 54. It is the correctness of the said order that was challenged in the write petition.

The contention urged by the appellant in the writ petition is that once he has been acquitted of a criminal charge of rash and negligent driving by

the High Court, the original suspension order and the subsequent order removing him from service based on the criminal Court''s conviction cannot

have a legal basis as the conviction has been set aside by the High Court on appeal, and, therefore, the appellant should be taken to be on duty

during the relevant period. The writ petition was dismissed at the admission stage by Mohan, J., on two grounds : (1) That once the power of the

respondent under Fundamental Rule 54 is conceded, the respondent will have jurisdiction either to grant or deny the wages due to the appellant

during the relevant period, and (2) that the opinion expressed by the respondent that it is a gruesome accident for which the appellant cannot

disclaim his responsibility does not amount to the authority sitting in Judgment over the order passed by this Court. Aggrieved by the said decision

of Mohan, J., the present writ appeal has been filed.

In this writ appeal, the main contention urged by the learned counsel for the appellant is that the respondent had no jurisdiction to deny the

wages to the appellant under Fundamental Rule 54(3) as he had been fully exonerated by this Court in the criminal appeal, that even assuming that

the Joint Director had jurisdiction to decide the question relating to the payment of wages to the appellant for the period of non-employment, such

discretion was not exercised properly, and that the respondent has sat in judgment over the decision of this Court when he said that the appellant

was responsible for the gruesome accident, which resulted in the death of two cyclists on the spot and injuries to so many persons and that

Fundamental Rule 54 has no application to the appellant''s case and it is only the general law that is applicable, and that as per the general law the

appellant is entitled to be paid his salary during the relevant period. According to the learned counsel once the appellant is acquitted by the

appellate court, the order of removal from service based on the order of conviction by the trial Court can have no basis and therefore, the

appellant should be taken to be on duty. In support of this plea the appellant relies on the decision of this Court in The Union of India Vs. Jayaram

Damodhar Timiri, of the Bombay High Court In Dattatraya v. Director of Agriculture 1984 M.L.J. 406 and of the Supreme Court in Brahma

Chandra Gupta Vs. Union of India (UOI), . In the first case Rajamannar, C.J., speaking for the Bench, has expressed the view that once a

delinquent officer is acquitted he was entitled to be restored to the office which he was holding, that ordinarily he would be entitled to full salary

which he would have drawn if he had not been suspended, for the period of his suspension and that Art 193 of the Civil Service Regulations was

totally inapplicable to acquittal by criminal Courts and that it is under the general law the delinquent was entitled to arrears of salary for the period

of suspension, of course, deducting the pay and allowances paid to him during that period. On the facts of that case, it is clear that the order of

suspension passed by the authority was based on the criminal proceedings initiated against him and it is for that reason the court held that if the

criminal proceeding ended in acquittal the delinquent officer is entitled to claim full salary for the period of suspension. In the second case, the

Bombay High Court held that a Government servant who had been convicted by the trial Judge and ultimately acquitted by the High Court, of an

offence under S. 409, I.P.C., then he should be taken to have been wholly exonerated of the charge, and, therefore, he is entitled to the pay for the

period of his suspension and that the concept of ''honourable acquittal'' or ''full exoneration'' was not relevant. In this case also the suspension was

based on the pendancy of the criminal proceedings and when the criminal proceedings ended ultimately in acquittal, the period of suspension

should be treated as on duty. In the third case, the Supreme Court has, while dealing with a similar case of suspension of a Government servant

based on a criminal prosecution, held that once the conviction is set aside by the appellate Court followed by reinstatement, the delinquent was

entitled to full amount of salary on reinstatement and there is no justification for withholding the salary either in full or in part for the suspension

period. But the said decision is also based on the fact that the order of suspension came to be issued as a result of the criminal proceedings.

Here we are concerned with two periods : (1) from the date of suspension till the date of removal from service, and (2) the period from the date

of removal from service till the date of reinstatement. The decisions relied on by the appellant''s leaned counsel and referred to above will apply

only to the second period, i.e., the period between the date of removal from service and reinstatement. Since the reinstatement is based on the

order of acquittal by this court on appeal, the earlier order of removal from service based on the conviction by the trial court cannot be relied on by

the department, and the order or removal from service cannot, otherwise, be justified. To such a case Fundamental Rule 54(3) will not apply, and

it is Fundamental Rule 54(2) that will apply. In view of the above decisions the appellant will be entitled to be treated as on duty during the second

period.

However, so far as the first period is concerned, the question is whether the order of suspension was wholly unjustified as contemplated by

Fundamental Rule 54(2) so as to enable the appellant to claim fully pay and allowances to which he would have been entitled if he had not been

suspended. Fundamental Rule 54(2) itself makes a distinction between a case where the Government servants have been removed from service

based on a criminal prosecution or a departmental enquiry in which they have been fully exonerated later, and a case of suspension and provides

two separate criteria. If it is removal from service the Government servant can claim full pay and allowances if he has been fully exonerated and in

the case of suspension he will be entitled to full pay and allowances if the order of suspension was wholly unjustified. In this case, it is not possible

to say that the order of suspension was wholly unjustified. As already stated, the order of suspension was passed immediately after the accident

which was found on departmental enquiry to be due to the rash and negligent act of the appellant. The suspension itself was pending enquiry into

the charge levelled against him in the departmental enquiry. Thus the order of suspension was not based on any criminal proceedings. As a matter

of fact, the disciplinary proceedings have reached a stage of issue of show cause notice proposing a penalty for the charge levelled against him

which has been found proved by the Enquiry Officer. But, no action was taken against the appellant in pursuance of the said show cause notice,

because the appellant wanted final orders to be passed in the disciplinary proceedings after his appeal is decided by this Court and the said

disciplinary proceedings, however, came to be closed on the basis of the conviction by the trial court. Thus it is only the removal from service

which was based on the criminal proceedings and not the order of suspension pending enquiry. Therefore, the fact that the appellant has been

acquitted by this Court on appeal will not make the order of suspension pending departmental enquiry which was passed long before the initiation

of criminal proceedings an unjustifiable one. The fact that in the disciplinary proceedings the Enquiry Officer found the charge levelled against the

appellant proved, itself would indicate that the order of suspension was justified at the time when it was passed. As already stated, the above three

decisions referred to by the appellant are all cases where either the order of suspension or the removal from service was based on the criminal

proceedings and when the criminal proceedings ended in acquittal, orders of suspension or removal from service were held to be wholly unjustified

so as to bring the case within Fundamental Rule 54(2). We are, therefore, of the view that even if Fundamental Rule 54(2) will apply to this case as

contended for by the learned counsel for the appellant, still, since the order of suspension pending enquiry cannot be said to be wholly unjustified,

the authority below was justified in treating the period between the order of suspension and the order of removal from service as leave to which the

appellant will be entitled. Thus, even if Fundamental Rule 54(2) is applicable the appellant can succeed only as regards the period between the

date of removal from service and the date of reinstatement and he cannot claim a similar benefit for the earlier period, i.e., between the date of

suspension pending enquiry and the order of removal from service based on the judgment of the trial court.

The learned counsel for the appellant has made a general submission the Fundamental Rule. 54 will apply only if an action is taken against the

Government servant in disciplinary proceedings and not in respect of matters which have gone before the criminal Court. In support of this

submission the ''learned counsel referred to the decision in Union of India v. Jayaram (supra), wherein Rajamannar, C.J., speaking for the Bench

has observed that Art. 193 of the Civil Service Regulations which is similar to Fundamental Rule 54 was totally inapplicable and it is the general

law that will have to be applied. But we find that the Supreme Court in Brahma Chandra v. Union of India (supra) proceeded on the basis that the

provisions contained in Art. 193 of the Civil Service Regulations applied when a Government servant is originally removed from service on the

basis of trial court''s conviction but later on reinstated as a result of an order of acquittal passed by the appellate court. Thus the Supreme Court

has not taken the view in as has been done in Union of India v. Jayaram (supra) that Art. 193 of the Civil Service Regulations applies only to the

action taken in a disciplinary proceeding and not to an action taken as a result of the criminal proceedings. Therefore, following the view taken by

the Supreme Court that Art. 193 of the Civil Service Regulations will apply even in respect of action based on criminal prosecution, we cannot

accept the contention of the learned counsel for the appellant that Fundamental Rule 54 cannot apply to the appellant''s case and that he can claim

his full salary under the general law without reference to the said Fundamental Rule.

As a result of the foregoing discussion the appellant is held entitled to claim to have been on duty only for the period between the date of

removal from service till date of reinstatement, and not for the earlier period between 24th August, 1970 the date of suspension pending enquiry

and 7th December, 1973, the date of removal from service.

In the result, the writ appeal is allowed in part to the extent indicated above and consequently the writ petition will stand allowed in part and the

appellant will be treated as having been on duty from 7th December, 1973 to 7th April, 1974. There will, however, be no order as to costs.