Acquittal in a criminal case entitles an employee to regularization of suspension period as duty with back wages and continuity in service.

SANGITRAO S. PATIL, J.

1. The petitioners have challenged the judgment and order dated 09.03.2005 passed by the Central Administrative Tribunal, Bombay Bench, at Mumbai (“the Tribunal”, for short) passed in Original Application No.787 of 2003, whereby they have been been ordered to pay salary to the deceased respondent in respect of the period of his suspension, after deducting the suspension allowance, if any, paid to him.

2. The deceased respondent was an employee working with the Ordnance Factory at Varangaon, Tq. Bhusawal, Dist. Jalgaon. He came to be arrested on his wife's sustaining burn injuries on 27.04.1999. In respect of that incident, crime was registered against the deceased respondent and others for the offences punishable under Sections 307, 498A and 506 read with 34 of the Indian Penal Code. The deceased respondent came to be arrested on 01.05.1999. He was in Police Custody till 04.05.1999 and then in magisterial custody till 20.05.1999, on which date he was released on bail. Petitioner no.2 suspended the deceased respondent by order dated 31.05.1999 with retrospective effect from 01.05.1999. Sessions Case No.183 of 1999 was instituted against the deceased respondent and his other family members. All the accused persons, including the deceased respondent, came to be acquitted as per the judgment dated 22.07.2002. Respondent no.2 then revoked suspension of the deceased respondent as per the order dated 08.01.2003 with effect from 09.01.2003. The deceased respondent made a representation on 15.01.2003 for treating his suspension period as the period spent on duty. Petitioner no.2 issued notice to the deceased respondent to show cause as to why the period of suspension should not be treated as suspension because he was acquitted for want of sufficient evidence.

3. The deceased respondent replied that notice and stated that his wife had sustained burn injuries accidentally and that has been upheld by the Sessions Court. He, therefore, prayed that since he has been honourably acquitted, he was entitled to get his suspension regularised as the period spent on duty with full back wages and allowances as well as continuity in service. Respondent no.2 passed order on 28.02.2003, rejected the representation of the deceased respondent and ordered that the period of suspension of the deceased respondent shall be treated as justified suspension and not the period spent on duty for any purpose and the deceased respondent shall be allowed only the pay and allowances as had been paid to him during the period of suspension.

4. Being aggrieved by the order passed by respondent no.2, the petitioners filed above numbered Original Application before the Tribunal. The Tribunal, after considering the rival claims of the parties as well as the factual and legal aspects of the matter, allowed that application. The said order is under challenge in this petition.

5. The learned Standing Counsel for the petitioners, relying on the judgment in the case of Krishnakant Raghunath Bibhavnekar Vs. State of Maharashtra and ors., (1997)3 SCC 636, submits that the acquittal of the employee based on insufficient evidence in a criminal case would not automatically entitle him to get back wages, pensionary benefits and other consequential benefits on his retirement where suspension is ordered pending criminal case. He submits that the competent authority is empowered to treat suspension period as not spent on duty and has discretion in the matter of treating the suspension period as the period spent on duty and also in granting benefits of continuity in service as well as back wages and allowances. He submits that petitioner no.2, after considering the reply of the deceased respondent, has rightly refused the relief claimed by the deceased respondent. He submits that the deceased respondent was acquitted of the criminal charges because his wife turned hostile and there was no sufficient evidence to establish his guilt of the offences. Therefore,