20 Sep 2022 11:42 AM GMT
The Bombay High Court has recently held that an employee deemed to be suspended due to criminal charges is not entitled to back wages despite his acquittal as a deemed suspension is not a discretionary decision and cannot be considered unjustified."Even where the employee is acquitted of the charges in criminal trial for lack of evidence or otherwise, it is for the competent authority to...
The Bombay High Court has recently held that an employee deemed to be suspended due to criminal charges is not entitled to back wages despite his acquittal as a deemed suspension is not a discretionary decision and cannot be considered unjustified.
"Even where the employee is acquitted of the charges in criminal trial for lack of evidence or otherwise, it is for the competent authority to form its opinion whether the suspension of the employee was wholly unjustified and so long as such opinion of the competent authority was a possible view in the facts and circumstances of the case and on the materials before him, such opinion of the competent authority would not be interfered with by the Tribunal or the Court...The suspension of the petitioner, brought about by operation of law, had the effect infusing life into a law and the same can hardly be impeached as unjustified," the Court held.
A division bench of Chief Justice Dipankar Datta and Justice Nitin W. Sambre dismissed a writ petition challenging Central Administrative Tribunal's (CAT) order upholding Disciplinary Authority's decision to not grant the petitioner back wages and allowances for the period of his suspension.
The petitioner was a labourer at the Ordnance Factory, Ambazari. He was accused of certain offences and detained for more than 48 hours resulting in his deemed suspension. He got bail a year later but the suspension continued for ten years. The petitioner was reinstated and retired on superannuation after his acquittal. The general manager issued an order stating that his period of suspension will be considered as 'Dies Non', or period not spent on duty and he will not be entitled to back pay and allowances beyond the subsistence allowance.
Petitioner challenged this before the appellate authority who rejected his claim. Petitioner then approached the CAT who rejected his application. The Bombay High Court remanded the matter back to the tribunal where it was dismissed again on the basis of Supreme Court Judgement in The Greater Hyderabad Municipal Corporation v. M. Prabhakar Rao. Hence the current petition.
Advocate M. I. Mourya for the petitioner submitted that the decision in M. Prabhakar Rao was not applicable as that case was concerned with offences while discharging official duties. Further, the petitioner in the current case was honourably acquitted. He cannot be faulted for the delay in the trial. He was willing to work but couldn't because of the suspension.
The court observed that Rule 54-B of the Fundamental Rules, to decide whether an employee is entitled to back wages and allowances and whether the period of suspension is to be treated as period spent on duty, the question of whether the suspension was justified on not needs to be determined. In the current case, the deemed suspension order was passed under Rule 10(2) of the Central Civil Services (Classification, Control and Appeal) Rules 1965 (CCS CCA Rules). It is a deemed suspension and the disciplinary authority did not exercise any discretion in this case. Such a suspension brought by operation of law cannot be unjustified.
The court further noted Rule 10(7) of the CCS CCA Rules provides that the authority review the suspension order from time to time. The disciplinary authority should have periodically reviewed whether continuance of the suspension was justified or not. "After all, without extracting any work from the petitioner but paying him subsistence allowance for more than a decade, howsoever meagre be the quantum, was in fact a drainage of the public exchequer", the court observed. However, this doesn't mean that the continuance of suspension was unjustified.
The court wasn't inclined to believe the claim that the petitioner genuinely wanted to work as he never requested for a review or revocation of the suspension order. He was content with drawing subsistence allowance without putting it any work.
The court observed that while the petitioner cannot be faulted for the delay in the trial, the disciplinary authority also cannot be faulted for the delay.
The court did not find any merit in the distinction drawn by Mourya between M. Prabhakar Rao and the current case. It doesn't matter whether the criminal proceedings faced by the employee are for acts while discharging his official duty or not. Once the employee is detained for more than 48 hours, he would be deemed to be suspended under the CCS CCA Rules, it said.
Case no. – Writ Petition No. 5319 of 2022
Case title – Gopal S/o Sitaram Bairisal v. Union of India
Citation : 2022 LiveLaw (Bom) 339
Click Here To Read/Download Order