Acquittal in bribery case does not automatically entitle suspended employee to full backwages; competent authority may treat suspension as leave, applying 'no work no pay' where prosecution not by employer.

JUDGMENT :

SANDEEP V. MARNE, J.

1. The Petitioner has filed the present Petition seeking a direction for treatment of suspension period from 29 November 1986 to 9 May 1990 as duty and for grant of full pay and allowances for the said period.

2. Petitioner joined the services of Municipal Corporation of Greater Mumbai in 1977 as Junior Medical Officer. He was promoted to the post of Medical Officer of Health on 1 January 1980 and was posted in various Wards. He was posted as Medical Officer of Health in ‘S’ Ward in the year 1985. On 20 November 1986, Petitioner was arrested by Anti Corruption Bureau (ACB) alleging demand and acceptance of illegal gratification of Rs.2,000/-. Petitioner was detained in custody and accordingly he was placed under suspension with effect from 29 November 1986. Special Case No. 49 of 1987 was registered against him and chargesheet was filed on 9 October 1987 under Section 161 of the Indian Penal Code (IPC) read with Sections 5(2), 5(1)(d) and 5(1)(a) of Prevention of Corruption Act, 1947. Searches were also carried out in the residence and bank lockers of the Petitioner and it was alleged that the Petitioner possessed assets disproportionate to his known sources of income to the extent of Rs.7.7 lakh. Therefore, another case was registered against him by ACB under Section 5(1)(e) read with (2) of Prevention of Corruption Act, 1947. However, upon further investigations, the ACB did not file chargesheet in relation to offences of possession of disproportionate assets. Petitioner faced trial in Special case No.49 of 1987 relating to demand and acceptance of illegal gratification, and by judgment and order dated 28/29 September 1989, he was acquitted of all charges framed against him.

3. After Petitioner’s acquittal in Special Case No.49 of 1987, he was reinstated in service with effect from 10 May 1990 by revoking the suspension. Municipal Corporation of Greater Mumbai (MCGM) however, proposed conduct of departmental enquiry against him and the Municipal Commissioner accorded sanction on 2 April 1991. However, in the meantime, ACB filed Criminal Appeal No.89 of 1990 before this Court challenging the acquittal order. On account of filing of Appeal by the ACB, MCGM did not issue chargesheet for conduct of departmental enquiry against the Petitioner. By judgment and order dated 6 November 2006, this Court proceeded to dismiss the Appeal preferred by the ACB.

4. In the meantime, Petitioner was once again trapped by ACB on 26 December 2000 on the allegation of demand and acceptance of illegal gratification and was again placed under suspension with effect from 3 January 2001. He was compulsorily retired from municipal service upon attaining the age of 55 years with effect from 4 November 2005 under Rule 14B of the Mumbai Municipal Corporation (Pension) Rules [MMC (Pension) Rules]. The proposals for treatment of suspension period from 29 November 1986 to 9 May 1990 as on duty was considered in the Municipal Corporation at various hierarchical levels from the year 2008 onwards. However, no final decision was taken for treatment of suspension period as duty. A file note put up on 7 September 2010 for treatment of suspension period from 29 November 1986 to 9 May 1990 as earned leave of 1