1. This petition under Article 226 of the Constitution of India is against alleged illegal and arbitrary action of the respondent authorities for nonpayment of pension and other retirement dues with further grievance of nonpayment of back wages/difference of salary for a period from 30th December 1985 to 31st March 2006.
2. Brief facts giving rise to the petition are as follows:
2.1 The petitioner joined the service of respondent corporation in the year 1968. Since 20th April 1977 he worked as a Supervisor with the respondent corporation.
3. On 4th December 1985, against three persons including the present petitioner a complaint was lodged for the commission of offences punishable under the provisions of Prevention of Corruption Act (hereinafter to be referred to as the the P.C Act”). The petitioner was suspended from service on 30th December 1985 by an order passed by the Deputy Municipal Commissioner (Engineering).
3.1 After the trial on 24th January 1989 the petitioner came to be convicted by the Special Judge, Ahmedabad in Sessions Case No. 3 of 1988, holding him guilty of the offences punishable under sections 5(10)(d) read with section 5(2) of the Provisions of Prevention of Corruption Act, as well as under section 161 of the Indian Penal Code.
4. Criminal Appeal No. 93/89 was preferred before this Court which was admitted on 4th March 1989 and was allowed on 28th March 2006. He was under suspension and on 7th February 1994 a show cause notice was issued for dismissal from service in view of the conviction recorded by the Sessions Court. The said notice was replied to on 25th February 1994 and on 6th March 1994. On 17th February 1995 the petitioner was dismissed from service on the ground of conviction. The petitioner retired on attaining the age of superannuation on 31st March 2006. However, this Court by its judgement dated 21/28th March 2006 allowed the Criminal Appeal and set aside the judgment of trial court thereby reversing the order of conviction.
5. It is the say of the petitioner that the respondent should give all the consequential and terminal benefits to the petitioner and the order of acquittal from the High Court came prior to the date of his retirement.
6. A representation dated 19th June 2006 was made to the respondent authorities but to no avail. It is the say of the petitioner that when the very basis of dismissal order does not continue and when the High Court acquitted the petitioner, he ought to have been reinstated in service from the date of setting aside the order of conviction and the entire period starting from 30th December 1985 should be treated as duty period. However, the response to the petitioner denying the retirement dues dated 19th May 2007 is contrary to the settled position of law and being arbitrary and unjust required to be quashed and set aside.
7. On issuance of the notice, reply is filed by the Corporation urging that the petitioner's service was terminated as he was held guilty of accepting illegal gratification in connivance with other two employees and therefore, the suspension order dated 30th December 1985 came to be passed and when eventually he was convicted in Criminal Case No. 3 of 1988, he was dismissed from service. Therefore, no interference of this Court is required.
7.1 According to the respondent, a show cause notice dated 30th December 2011 was granted to the petitioner to explain as to why the suspension period may not be considered for regularization. A reply of his dated 27th December 2006 was also taken into account and the final order which is impugned in this petition being the order dated 19th May 2007 was passed denying disputed period and this practice is in consonance of the provisions of law and the practice followed by the corporation.
8. Reliance is placed on Section 56(3) of the BPMC Act which speaks of affording a reasonable opportunity to the officer or servant while reducing to a lower post or removal or dismissal. Two exceptions have been carved out are (1) where such persons are convicted of criminal charge and (2) where the authority finds it impractical to afford an opportunity to the person concerned.
9. It is the say of the respondent that by virtue of regulation 20(C) of the Ahmedabad Municipal Corporation Manual (Vol. III Chapter VIII) the authority is permitted to exercise the discretion or payment of pay and allowances and to treat the period of suspension as period spent on duty, if it is the opinion that such suspension was fully unjustified. It is the say of the petitioner that it is the discretion of the authority to determine the quantum of payment to be made for the period of a delinquent's absence from duty and the very such period needs regularization having spent on duty. Reliance is placed on other similarly situated persons to the orders passed in similarly situated persons/officers and accordingly it is denied that there is any illegality in the impugned order.
10. Learned counsel Mr. Shalin Mehta appearing for the petitioner has fervently submitted that on one hand the Municipal Corporation has not conducted departmental inquiry that there was nothing to preclude the corporation from conducting such inquiry and reach to a logical conclusion in respect of full pay and allowances which petitioner would have been entitled for a period of suspension between 30th December 1985 to 17th February 1995 when he was dismissed from service on the ground of his conviction under the Anti corruption law before the trial court. Learned advocate Mr. Mehta though urged that it is the discretion of officer concerned whether or not to treat the period spent during suspension for dismissal as the period spent on duty or not, he insisted that it is absolutely obligatory on the part of corporation to have given the reasons for denying pay and allowances despite the specific order of Appellate forum of acquitting him of all the charges. He urged this Court that the reasonableness of findings can be examined by this Court certainly and the act of arbitrariness will require to be checked by this Court in the writ jurisdiction. He also questioned the order of learned Single Judge rendered in Special Civil Application No. 6897 of 2001 by stating that the facts are totally different and hence, that decision cannot be employed in case of this petitioner.
11. Per contra, learned advocate Mr. Satyam Chhaya appearing for Ahmedabad Municipal Corporation has urged that the petitioner was given a show cause notice as to why his services should not be terminated and after considering the reply on 17th December 1995, the order of dismissal from service was passed in Criminal Appeal No. 93/89 before the High Court. The order of acquittal came on 21st / 28th March 2006 and his date of superannuation was on 31st March 2006. It is the say of the learned advocate that though retirement of the petitioner had already come and there was no question of reinstatement. So as to fulfill the procedural obligation, the show cause notice dated 30th November 2006 was issued and thereby opportunity was already afforded to the petitioner as to why his suspension period should not be regularised. In response to the same, he replied on 27th December 2006 and the order came to be passed on 19th May 2007. Thus, the order of not regularising his service for the disputed period and having found such suspension justifiable, allowances or wages for the interregnum period has been denied. Learned advocate heavily relied upon the provisions of Bombay Provincial Municipal Corporation Act being Section 56(3). He has also sought to rely upon Section 20(C) and urged that it is the sole discretion of the authority to determine quantum of payments to be made for the period of a delinquent's absence from duty and whether to treat such period as regularised as having been spent on duty or not, therefore, no interference is called for.
12. Before adverting to the submissions of both the sides on facts, it would be necessary to examine statutory provision and the law on the subject.
13. Section 56 : Imposition of penalties on Municipal officers and servants. The relevant provision is as under :
“(a) Where a person is reduced, removed or dismissed on the ground of conduct which has led to his conviction on a criminal charge; or
(b) Where the competent authority is satisfied that, for reasons to be recorded in writing by such authority, it is not reasonably practicable to give that person an opportunity or showing cause.”
(4) Subject to the provisions of clause (d) of the proviso to subsection (1), any municipal officer or servant who is reduced, removed or dismissed by any authority other than the Corporation may, within one month of the communication to him of the order of reduction, removal or dismissal, appeal to the authority immediately superior to the authority which imposed the penalty and the appellate authority may, after obtaining the remarks of the authority which imposed the penalty, either confirm the order passed or substitute for it such order as it considers just, including an order for the imposition of some lesser penalty, and effect shall forthwith be given to nay order passed by the appellate authority which shall be conclusive:
Provided that for the purpose of this sub section the Standing Committee shall be deemed to be the authority immediately superior to the Commissioner and the Corporation shall be deemed to be the authority immediately superior to the Standing Committee.
(5) With reference to officers and servants appointed under Chapter XX the provisions of this section shall apply as if for the word “Commissioner” the words “ Transport Manager” and for the words “ Standing Committee” the words “ Transport Committee” has been substituted.”
14. Admittedly this provision of Section 56 does not deal with suspension. It speaks of only dismissal of service which requires the affording of opportunity before such removal, lowering of the position or dismissal from service, unless the authority in its subjective satisfaction feels that it would be reasonably impracticable to afford such opportunity.
15. Rule/Regulation 20(C)(1) of Ahmedabad Municipal Corporation Manual (Vol. III Chapter III) states as under :
“20(C)(I) When a Municipal Servant who has been dismissed removed or suspended is reinstated the authority, competent to order the reinstatement, shall consider and make a specific order :
(a) Regarding the pay and allowances to be paid to the Muncipal. servant for the period of his absence from duty; and
(b) Whether or not the said period shall be treated as a period spent on duty.
(2) where the authority mentioned in sub rule(1) is of the opinion that the Municipal. servant has been fully exonerated or in the case of suspension that it was wholly unjustified, the Municipal servant shall be given the full pay and allowances to which he would have been entitled had he not been dismissed, removed or suspended, as the case may be.”
15.1 This would come into effect at a time when the question arises of reinstatement of Municipal servant who has been either dismissed or removed or suspended. When the question arises in respect of pay and allowances to be given to such servant for a period of which his absence of duty such authority either in the case where municipal servant is fully exonerated “or” in the case of suspension which it would find unjustified imposed given full pay and allowances which he would have entitled if such dismissal, removal or suspension would not have had.
16. There are two situations permitting the authority to pay the entire pay and allowances during the period of absence on account of pay, suspension, removal or dismissal if the municipal servant is fully exonerated of all the charges and in the alternative, suspension if otherwise is found fully unjustifiable.
17. In the instant case admittedly the municipal servant had been suspended on account of charges under the Anti Corruption laws, and he was convicted by the trial court, and later has been acquitted of all the charges by the High Court and thus, he can been said to have been fully exonerated. However, that condition alone is not required to be fulfilled for the petitioner to be entitled to the full pay and allowances for the entire period of his absence from duty. The second aspect as to whether the authority competent to order of reinstatement in the event of suspension, dismissal or removal, is of the opinion that the case of suspension, is fully unjustified. The Municipal servant in such event shall have to be given full pay and allowances which otherwise was entitled.
16. The question, therefore, would arise as to whether such discretion is available to the competent authority without holding departmental inquiry and corollary to that is the question whether in absence of departmental inquiry, the show cause notice issued to the present petitioner and reply given by him, would sufficiently not fulfill the requirement of affording opportunity to the petitioner as has been done in the instant case.
17. There was no impediment or hitch in holding the departmental inquiry for the same charges on which petitioner has been held not guilty by the Appellate Court. It is well settled law of departmental inquiry that on similar nature of charges for which criminal case is pending, departmental inquiry can be conducted. It is also not in dispute that even after the retirement of government servant from his service, the departmental inquiry can be proceeded with. The record in the instant case is suggestive that no inquiry is initiated in the case of the petitioner, although there was nothing to preclude the authority to so conduct it. Since such inquiry was not held for there being no obstruction from the petitioner herein, the second limb that requires consideration is as to whether exercise of discretion as provided under Rule 20(C)(1) of the Ahmedabad Municipal Corporation manual would leave sufficient discretion with the competent authority to decide such question in lieu of departmental inquiry. And if that is answered in affirmation, third limb that needs to be answered is whether such discretion has been appropriately exercised by the competent authority in the instant case.
18. Learned advocate Mr. Mehta has relied upon the case of Brahma Chandra Gupta Vs. Union of India reported in 1984(3)SLR 307 wherein it is held as under :
“Keeping in view the facts of the case that the appellant was never hauled up for departmental enquiry, that he was prosecuted and has been ultimately acquitted, and on being acquitted he was reinstated and was paid full salary for the period commencing from his acquittal, and further that even for the period commencing from his acquittal, and further that even for the period in question on the concerned authority has not held that the suspension was wholly justified because 3/4th of the salary is ordered to be paid, we are of the opinion that the approach of the trial court is correct and unssailable. The learned trial judge on appreciation of facts found that this is a case in which full amount of salary should have been paid to the appellant on his reinstatement for the entire period. We accept that as the correct approach. We accordingly allow this appeal, set aside the judgment of first appellate court as well of the High Court and restore the one of trial court with this modification that the amount decreed shall be paid with 9% interest p.a. From the date of suit till realisation with costs throughout.”
19. As against that learned advocate Mr. Satyam Chhaya has relied upon the decision Management of Reserve Bank of Inida, New Delhi Vs. Bhopal Singh Panchal of 1993(0)GLHEL SC16993 wherein it is held by the Apex Court that respondent employee of the appellant bank who was arrested for criminal charge and was placed under suspension and subsequently was acquitted from criminal charge, when claimed full pay and allowances for suspension period, did not automatically become entitled to full pay and allowances. The competent authority had to decide it and discretion rested exclusively with the bank and bank's power was held unassailable as under:
5. The short question that falls for consideration is whether the order of suspension is automatically set aside on the reinstatement and whether the management cannot deal with the period of suspension according to the Regulation governing the service conditions.
We have already pointed out the effect of the relevant provisions of Regulations 39, 46 and 47. The said regulations read together, leave no manner of doubt that in case of an employee who is arrested for an offence, as in the present case, his period of absence from duty is to be treated as not being beyond circumstances under his control. In such circumstances, when he is treated as being under suspension during the said period,he is entitled to subsistence allowance. However, the subsistence allowance paid to him is liable to be adjusted against his pay and allowances if at all he is held to be entitled to them by the competent authority. The competent authority while deciding whether an employee who is suspended in such circumstances is entitled to his pay and allowances or not and to what extent, if any, and whether the period is to be treated as on duty or onleave, has to take into consideration the circumstances of each case. It is only if such employee is acquitted of all blame and is treated by the competent authority as being on duty during the period of suspension that such employee is entitled to full pay and allowances for the said period. In other words,the Regulations vest the power exclusively in the Bank to treat the period of such suspension on duty or on leave or otherwise. The power thus vested cannot be validly challenged. During this period, the employee renders no work. He is absent for reasons of his own involvement in the misconduct and the Bank is in no 550 way responsible for keeping him away from his duties. The Bank, therefore, cannot be saddled with the liability to pay him his salary and allowances for the period. That will be against the principle of 'no work, no pay' and positively inequitable to those who have to work and earn their pay.
As it is, even during such period, the employee earns subsistence allowance by virtue of the Regulations. In the circumstances,the Bank's power in that behalf is unassailable.”
From the discussion held hereinabove and the ratio laid down in this respect for it can be stated that exercise of discretion by the authority under Rule 20 (C ) (1) of the manual gives discretion to the competent authority to decide the question whether the government servant who was suspended and reinstated at a later date, his suspension was justified or not and whether he can be given full pay and allowances as he was not suspended in both situations, firstly when the government servant is fully exonerated or secondly (I) when it is required to be decided whether suspension was unjustified entitling the municipal servant pay and allowances, Manual permits exercise of discretion by the municipal authorities.
20. In the instant case also as can be seen from the record the petitioner herein had been availed the opportunity by issuing a show cause notice and he has replied to the said notice, the contents which have been dealt with and the authority passed an order which is impugned in this petition.
21. The last limb of submissions that requires consideration in the writ jurisdiction is as to whether the discretion exercised leading to denial of pay and allowances for the period when the petitioner had not discharged his duty and while he was under suspension, was appropriately exercised or not.
22. On duly considering the record placed before this Court, this Court is of the opinion that the exercise of discretion was not justifiably done by the respondent authority which requires interference from this Court.
21.1 It would be appropriate and profitable to refer to the judgment of the Supreme Court at this stage which permits interference in the writ jurisdiction in case of Surya Dev Rai v.
Ram Chander Rai & Ors. reported in [(2003) 6 SCC 675].
21.2 As can be noted from the record the Deputy Municipal Commissioner (Engineering) passed an order dated 17th December 1995 of dismissal from services. After the judgment of conviction on 24th January 1989. The petitioner preferred an appeal before the High Court being Criminal Appeal No. 93/89 where the Court passed an order of acquittal on 21st/ 28th March 2006 as mentioned hereinabove and the petitioner was superannuated on 31st March 2006. Admittedly the corporation did not hold the departmental inquiry however, a show cause notice dated 30th November 2006 as mentioned hereinabove was given an opportunity to the petitioner as to why the suspension should not be considered for regularisation. A reply dated 27th December 2006 was given and the order came to be passed on 19th May 2007 not regularising the disputed period and thereby considered such period of suspension not on duty.
21.2 Section 56 permits the imposition of penalty on Municipal officers and servants which of course specifically does not deal with the suspension which prohibits the employee to be reduced to a lower post or removal or dismissal unless reasonable opportunity of showing cause is given. As the case does not cover the suspension, rule 20(C)(1) of the Ahmedabad Municipal Corporation manual will need to come into play.
Powers undoubtedly are vested in the corporation to determine and to decide whether the employee suspended under the circumstances mentioned hereinabove was entitled to pay and allowances or not and to what extent the period is to be treated as on duty or on leave. These powers can be exercised on a combined reading of Section 56 of BPMC Act and Rule 20 of the Manual after affording opportunity to the employee concerned as is done in the instant case. However, no power can be treated as a blanket power without a corresponding power to this Court to scrutinise its apt use without resorting to arbitrariness.
21.3 As mentioned hereinabove the authority has exercised its discretion when the same has been done on extraneous grounds untenable under the law the same would require interference by this Court. The order impugned when examined, it speaks the facts which do not exist on record and thus, the order calls for interference.
21.4 On 4th December 1985, a complaint was lodged against the petitioner and two others for commission of alleged offences punishable under provisions of Prevention of Corruption Act. The petitioner was suspended from service vide order dated 30th December 1985.
22. On 24th January 1989 as stated hereinbefore the petitioner was convicted by the Special Judge, Ahmedabad in Sessions Case No. 3 of 1988 and he was held guilty for the offences punishable under Section 5(10)(d) read with Section 5(2) of the Provisions of Prevention of Corruption Act, 1947 as well as under section 161 of the Indian Penal Code, 1860.
22.1 A Criminal Appeal No. 93 of 1989 was preferred before this Court on 4th March 1989 by the petitioner aggrieved by such conviction and this Court on dated 21st / 28th March 2006 allowed Criminal Appeal and set aside the judgment of the trial court. When the trial court convicted this petitioner, two of his colleagues were acquitted and when the High Court acquitted the present petitioner the case of the present petitioner would have to be treated on par with the cases of his other two colleagues.
22.2 It needs to be noted that other two coaccused who were given the benefit of doubt by the Sessions Court have been availed the benefit by the Corporation and they have been treated on duty whereas the petitioner has been denied the backwages and other retirement benefits essentially as he was convicted by the trial court, unmindful of the facts that he was acquitted by this Court in Appeal.
23. Although the right of the corporation under Section 56 read with Rule 20 has been well recognised by this Court as discussed hereinabove, a discretion exercised in this case appears to be completely contrary to the facts on record and also is discriminatory as others who were similarly situated were granted the benefit, treating them as on duty by the order passed by the Deputy Municipal Commissioner (Engineering). When this petitioner was also given acquittal by this Court, difference adopted in treating similarly situated persons, will certainly call for interference. It is permissible for the corporation in the aforementioned circumstances to make a distinction between the order of acquittal passed by the trial court and the order of acquittal of this Court. Thus, the petitioner has made out the case of arbitrary exercise of powers and therefore, writ jurisdiction of this Court word need to be exercised for quashing and setting aside the order impugned, necessitating direction to the Corporation to treat the petitioner herein on duty for the entire period. Rule is made absolute to the extent above.
(Ms. Sonia Gokani,J.) mary//