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Judgment
M.B. Shah, J.—In this petition the contention of the petitioners is that the suspension order (Annexure ''A'') dated 24-4-1987 be quashed and set aside as they are acquitted by the Criminal Court (the petitioners have produced the acquittal order passed by the Judicial Magistrate, First Class, Karjan on 30th January, 1988 in Criminal Case No. 503 of 1987). As per the said order the petitioners along with other persons were prosecuted for the offences punishable under Sections 224, 223 and 324 of the Indian Penal Code. In that case the petitioners were accused Nos. 7 and 8. The Court has arrived at the conclusion that accused Nos. 1 to 6 of that case absconded from the Court custody from Karjan sub-jail by breaking open the Jail. It also arrived at the conclusion that the said accused caused grievous hurt to witness Ranjitsinh Kanaksinh and convicted them. With regard to the case against the present petitioners-(accused Nos. 7 and 8 of that case) the Court held that before prosecuting the petitioners sanction u/s 197 of the Criminal Procedure Code was not obtained. It also observed that the prosecution has failed to establish beyond reasonable doubt that accused No. 8 was at the relevant time on duty. It observed that the work taken from the petitioners was against the rules. On the aforesaid grounds the Judicial Magistrate acquitted them.
The learned Advocate appearing on behalf of the petitioners submitted that once the acquittal order is passed against the petitioners, the impugned suspension order would not survive and the petitioners are required to be reinstated in service.
In my view, this submission is without any substance because if we refer to the suspension order, Annexure ''A'', it is clear that the petitioners are suspended pending departmental enquiry and not pending criminal trial. At present the departmental enquiry is not over. Hence it cannot be said that once they are acquitted in criminal case, the petitioners are required to be reinstated in service. Their suspension order continues till the departmental enquiry is over.
Mr. Oza, learned Advocate appearing on behalf of the petitioners, vehemently relied upon the judgment in the case of State v. B.C. Dwivedi 1983(2) 24(2) GLR 1315. In that case the Division Bench decided the Letters Patent Appeal against the order passed in the Special Civil Application. The Court held that merely because the acquittal appeal has been preferred, it cannot be said that the trial continues. The alternative contigency of suspending a Govt, employee is contemplation of disciplinary proceeding or us pendeney was also not in existencse since no inquiry has been initialed such less no charge-sheet has been issued though the respondent was suspended so back as 30th September, 1980 and the corruption cases ended by his acquittal on 6th January, 1982. In the present case the petitioners are not suspended pending criminal proceeding. The petitioners are suspended pending departmental enquiry. Therefore, ratio laid down in the aforesaid judgment would have no bearing.
Further, learned Advocate Mr. oza relied upon the State Government Circular issued in General Administration Department of July 8, 1970 which was considered by the Division Bench in the aforesaid case. The Court relied upon paragraph 3 of the Circular which reads as under:
...However, if the acquittal in a prosecution case or setting aside of an order of dismissal, removal etc. is on technical ground and not on the merits of the case, there should be no objection to proceedings being instituted in such cases. Government is. however, pleased to direct that even in such cases, the Government servants should not be placed under suspension again after reinstatement in service i.e., fresh prosecution or departmental inquiry against them, if considered necessary, should be instituted and completed expeditiously, without placing them under suspension.
As against this Circular, Mr. Dave, learned Additional Govt. Pleader appearing on behalf of the State, submitted that the Government has clarified the position by issuing further Circular on 31st March, 1971 and its relevant part is as under:
The phrase "suspension made with the specific object of prosecution or pending prosecution" by necessaiy implication excludes suspension ordered on account of an alleged misconduct with a view to taking departmental proceedings against the Government servant and for which purpose, a preliminary enquiry may be held or investigation continued. Merely because in the course of such proceedings, it is decided to prosecute him and he is prosecuted, the initial character of the suspension ordered is not altered. The suspension in such case would not automatically terminate on acquittal by Court but it would only be terminated by another order of the authority concerned and until such further order is made terminating the suspension, the Government servant has no right to be reinstated in service. If he is not reinstated on acquittal and a departmental enquiry is held against him, the whole period of suspension can be regulated pending upon the result of the enquiry. It is only where the suspension is ordered consequent to a criminal offence being registered against the Government servant or a complaint being lodged or charge-sheet presented against him in a Court or where In the order the intention to prosecute him is mentioned or it is specifically mentioned that the suspension is ordered pending his prosecution, the phrase "suspension made with the specific object of prosecution or pending prosecution" would be applicable.
(Emphasis added)
In my view, the aforesaid Circular is absolutely clear. It clarifies the point on that if the suspension has been made with a specific object of prosecution or pending prosecution, then as soon as the person is acquitted, he is required to be reinstated in service. But once the delinquent is suspended pending departmental enquiry, merely because in the course of such departmental proceedings he is acquitted, then the suspension order in such case would not automatically terminate on acquittal by the Court but it would only be terminated by another order of the authority concerned and until such further order is made terminating the suspension the Government servant has no right to be reinstated in service. The said Circular clarifies that when the person is suspended only pending his prosecution, then the Circular dated 18th April, 1970 would be applicable. In this view of the matter, it cannot be said that the aforesaid question is decided by the Division Bench of this Court.
Mr. Oza, learned Advocate appearing on behalf of the petitioners, further relied upon the Division Bench judgment of Himachal Pradesh High Court in the case of Surinder Kumar v. State of Himachal Pradesh and Am. 1984 (2) SLJ 347 and the decision of the Supreme Court in the case of Corporation of the City of Nagpur, Civil Lines, Nagpur and another Vs. Ramchandra and others, . In the case of Corporation of Nagpur City (supra) while dealing with this question the Supreme Court held as under:
The other question that remains is if the respondents are acquitted in the criminal case whether or not the departmental inquiry pending against the respondents would have to continue. This is matter which is to be decided by the department after considering the nature of the findings given by the Criminal Court. Normally where the accused is acquitted honourably and completely exonerated of the charges it would not be expedient to continue a departmental inquiry on the very same charges or grounds or evidence, but the fact remains, however, 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 direction in any way fettered. However, as quite some time has elapsed since the departmental inquiry had started the authority concerned will take into consideration this factor in coming to the conclusion if it is really worth while to continue the departmental inquiry in the event of the acquittal of the respondents. If, however, the authority feels that there is sufficient evidence and good grounds to proceed with the inquiry, it can certainly do so. In case the respondents are acquitted, we direct that the order of suspension shall be revoked and the respondents will be reinstated and allowed full salary thereafter even though the authority chooses to proceed with the inquiry. Mr. Sanghi states that if it is decided to continue the inquiry, so only arguments have to be heard and orders to be passed, he will see that the inquiry is concluded within two months from the date of the decision of the Criminal Court. If the respondents are convicted, then the legal consequences under the rules will automatically follow.
From the aforesaid observations of the Supreme Court it cannot be said that the Supreme Court has laid down that in all cases where the delinquents are acquitted in a criminal prosecution, then their suspension requires to be quashed and set aside. May be because of facts of that particular case Court has directed that the order of suspension shall be revoked.
In the case of Surinder Kumar v. State of Himachal Pradesh and Anr., (supra) the Himachal Pradesh High Court was dealing with Rule 10 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965. The Court was required to consider Sub-rule (2) of Rule 10 which, inter alia, provides that a Government servant shall be desired to have been placed under suspension by an order of appointing authority:
(a) with effect from the date of his detention, if'' he is detained in custody, whether on a criminal charge or otherwise, for a period exceeding forty-eight hours:
(b) with effect from the date of his convetion if. in the event of a conviction for an offence, he is sentenced to a term of imprisonment exceeding fourty-eight hours and is not forthwith dismissed or removed or compulsory retired consequent to such conviction.
In paragraph 11 the Court has held that the impugned order of suspension was apparently made in order to give effect to the fiction created by Sub-rule (2) of Rule 10. The Court further considered the question whether on the facts and circumstances of the case the continued operation of the order of suspension is legal and proper and is reasonably justified in the eye of law. The Court held that after the acquittal order the delinquent is required to be reinstated in service and observed that if the acquittal appeals are allowed and the petitioner is convicted, there is nothing to prevent the competent authority from dealing with the petitioner in accordance with law. After holding this the Court referred to the aforesaid Supreme Court judgment in the case of Corporation of Nagpur city and held that the direction given in the aforesaid case indicates that ordinarily where a delinquent who has been hauled up before the Court for trial on certain charges is acquitted, the order of suspension should be revoked and the delinquent should be reinstated even if the authority chooses to proceed departmentally against the delinquent. With respect, it is difficult to accept the last observation made by the Himachal Pradesh High Court because the Supreme Court has nowhere laid down that once the person is acquitted, even though the departmental enquiry is pending and even though suspension order is passed pending departmental enquiry, he is required to be reinstated and suspension order requires to be revoked. Further, in that case the Court was dealing with Sub-rule (2) of Rule 10 and in the light of the said sub-rule the Court has observed as stated above which would have no bearing with regard to the circulars issued by the State of Gujarat. The said Circular specifically provides that the suspension would not automatically terminate on acquittal by the Court. It is provides that only where the suspension is ordered consequent to a criminal offence being registered against the Government servant or a complaint being lodged or charge-sheet presented against him in a Court or where in the order the intention to prosecute him is mentioned or it is specifically mentioned that suspension is ordered pending his prosecution, then and then suspension would stand terminated after the acquittal.
Lastly Mr. Oza, learned Advocate appearing on behalf of the petitioners, relied upon the judgment in the case of A.K. Balakrishncm Nair v. Senior Superintendent of Post Offices 1982 (1) SLJ 545, wherein the Court dealt with the question, whether the order of deemed suspension in the circumstances of the case could be sustained or not. In that case the petitioner was working as Assistant Post Master of Cochin Post Office. He was placed under suspension in contemplation of disciplinary proceedings. Thereafter the petitioner was convicted. On the next day of the conviction the petitioner was dismissed from service. The appellate Court acquitted the petitioner against which the State preferred criminal appeal. The State appeal was dismissed Thereafter the petitioner moved the respondent by application to reinsiate him in service consequent upon his acquittal. In reply to that application he was informed that the order of dismissal had been set aside. a further enquiry'' would be held under provisions of the Central Civil Services (Classification. Control and Appeal) Rules, 1965 and that he would be deemed to have been placed under suspension with effect from 31-3-1979. Thereafter he was served with the charge-sheet under Rule 14 of C.C.S. (C.C.A.) Rules.
The petitioner challenged the aforesaid deemed suspension order and the charge-sheet. The Court considered Rule 10(4) of the aforesaid Rules and held that the petitioner can be deemed to have been placed under suspension by the appointing authority if the proposed enquiry against him is on that same allegations on which the penalty was originally imposed on him. The Court further arrived at the conclusion that the allegations in the charge-sheet are dissimilar and, therefore, Rule 10(4) was not attracted. Hence it quashed and set aside the deemed suspension order. In my view, from the facts and the law laid down in the aforesaid decision it is clear that it has no bearing or application to the present case and its citation in the present case is absolutely irrelevant.
In this view of the matter, this petition is rejected. Rule is discharged witn no order as to costs. However, looking to the facts and circumstances of the case and as the suspension order, Annexure ''A'', is of April 1987, the respondents are directed to finalise the departmental enquiry as expeditiously as possible and in any case within four months from the date of the receipt of the writ of the Court.