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2017 Supreme(AP) 347
IN THE HIGH COURT OF JUDICATURE AT HYDERABAD FOR THE STATE OF TELANGANA AND THE STATE OF ANDHRA PRADESH
P. NAVEEN RAO, J.
Kudikyala Kankaiah S/o Bakkaiah - Petitioner
Vs.
The Superintending Engineer, P.R. Circle, Karimnagar and others - Respondents
WRIT PETITION (TR) NO. 290 OF 2017
Decided On : 07-08-2017
For the Petitioner: Sri D.Balakishan Rao
Headnote:
Fundamental Rules -Petitioner was appointed as Gangman. He was placed under suspension, by order on which date, crime was registered against the petitioner. Petitioner was shown as Accused no.1 in S.C. on the file of III Additional Sessions Judge, Karimnagar. The trial Court convicted and sentenced him by judgment. On appeal, this Court by judgment allowed the appeal setting aside the conviction and sentence awarded by the trial Court. After acquittal, suspension was revoked and petitioner was reinstated to service. On revocation of suspension, petitioner claimed for treatment of the period of suspension as on duty. The request for payment of back wages was rejected by the Government vide Memo Challenging the same, petitioner invoked the jurisdiction of Andhra Pradesh Administrative Tribunal by filing O.A., since transferred to this court. petitioner and learned Government Pleader for Services II. Learned counsel for petitioner contended that consequent to the acquittal granted by the appellate Court, the suspension of the petitioner becomes untenable and, therefore, petitioner is entitled for treatment of the entire period of his suspension as on duty and for payment of full pay and allowances due and payable to him. In support of his contention, he placed reliance on the provision in FR-54A; -Held petitioner is governed by the Fundamental Rules. FR-54, FR-54A, FR-54B deal with various contingencies as to how the period of suspension can be regulated and when the full pay and allowance or partial pay and allowance can be paid to the employee. Rule 54-B deals with regulation of period of suspension of an employee. Sub rule (5) of 54-B indicates that in cases other than those falling under sub rules (2) and (3), the employee is not entitled to pay and allowances other than the subsistence allowance already paid. This case is not covered by the exception provided in Sub Rules (2) and (3). According to sub rule (7), in cases falling under sub rule (5) the period of suspension shall not be treated as a period spent on duty. Exceptions to denial of pay and allowances for suspension period are attracted in a case where employee dies before the disciplinary or Court proceedings instituted against him are concluded (sub-rule 2) or the competent authority holds the suspension of the employee as wholly unjustified (sub-rule 3). For the period when he was placed under suspension, till he was acquitted, suspension from service of petitioner cannot said as unsustainable/illegal. Back-wages for the period of suspension can be granted only if such period is treated as on duty. Petitioner has not rendered any work till he was reinstated. FR 54-B (5) & (7) are applicable to the case of the petitioner and in terms thereof, question of regularization of the period of suspension and grant of all benefits does not arise. claim of petitioner is not valid. I see no error in the decision of Government impugned herein. Writ Petition is liable to be dismissed. It is accordingly dismissed –Petition is Dismissed.
Petitioner was appointed as Gangman on 31.07.1976. He was placed under suspension, by order dated 25.10.2004 w.e.f. 07.09.2014, on which date, crime was registered against the petitioner. Petitioner was shown as Accused no.1 in S.C.No.764 of 2005 on the file of III Additional Sessions Judge, Karimnagar. The trial Court convicted and sentenced him by judgment dated 18.10.2006. On appeal, this Court by judgment dated 28.02.2012 allowed the appeal setting aside the conviction and sentence awarded by the trial Court. After acquittal, suspension was revoked and petitioner was reinstated to service on 31.05.2012. On revocation of suspension, petitioner claimed for treatment of the period of suspension as on duty. The request for payment of back wages was rejected by the Government vide Memo dated 03.01.2013. Challenging the same, petitioner invoked the jurisdiction of Andhra Pradesh Administrative Tribunal by filing O.A.No.1151 of 2013, since transferred to this court.
2. Heard learned counsel for petitioner and learned Government Pleader for Services II.
3. Learned counsel for petitioner contended that consequent to the acquittal granted by the appellate Court, the suspension of the petitioner becomes untenable and, therefore, petitioner is entitled for treatment of the entire period of his suspension as on duty and for payment of full pay and allowances due and payable to him. In support of his contention, he placed reliance on the provision in FR-54A; earlier decision of A.P. Administrative Tribunal in O.A.No.543 of 2011; decision of Full Bench of this Court in the District Manager, Andhra Pradesh State Road Transport Corporation, Bhimavaram v. Labour court, Guntur and another AIR 1970 AP 132, and the decision of Supreme Court in Brahma Chandra Gupta v. Union of India (1984) 2 SCC 433.
4. Per contra, learned Government Pleader submits that petitioner was involved in a crime of committing murder. The crime was registered on account of alleged involvement of the petitioner outside the employment. The trial Court convicted the petitioner in the judgment rendered on 18.10.2006, whereas the appeal was allowed on 28.02.2012. Petitioner was under the cloud of conviction and sentencing him. Ordinarily, petitioner would have been dismissed from service based on conviction, but was continued only under the suspension. Thus, for the entire period when he was facing criminal proceedings resulted initially in conviction and later on acquittal by the appellate Court, petitioner is not entitled to claim the benefits of full pay and allowances for the period of suspension. In support of his contention, learned Government Pleader placed reliance on provisions contained in FR-54 B.
5. The order under challenge is made in response to the proposals submitted by the Superintending Engineer, Panchayat Raj. The Superintending Engineer, Panchayat Raj sent the letter on 15.10.2012 and sought for clarification from the Engineer-in-Chief whether the petitioner was eligible for consequential benefits and payment of salary for the suspension period on the basis of acquittal granted by the High Court.
6. Thus, the issue for consideration is whether the petitioner is entitled to payment of pay and allowances for the period when he was placed under suspension.
7. Before considering the claim vis-à-vis provision contained in Fundamental Rules, I deem it proper to consider the principles laid down by this Court and the Hon’ble Supreme Court on the entitlement of the employee claiming back-wages consequent to the acquittal granted to him by the competent Court in criminal proceedings, pending which, an employee was placed under suspension.
8.1. In THE DISTRICT MANAGER, APSRTC, issue for consideration before the full bench of this court was, what is the effect of acquittal in criminal case on payment of pay and allowances for the period of suspension to an employee of APSRTC placed under suspension pending enquiry into criminal offence after he was acquitted. On in
