The main legal point established in the judgment is that the competent authority should not base its decision solely on the nature of the acquittal and must consider all attendant circumstances before forming an opinion on the justification of suspension and entitlement to salary for the suspension period.

Rajiv Shakdher, J.

1. The short point which arises in the writ petition is, whether or not the petitioner ought to have been paid full pay and allowances for the period of suspension which were denied to him, on account of his prosecution in a criminal case. The period of suspension involved in the present case is 30.03.1999 to 29.09.2009.

2. To be noted, the petitioner was implicated under the provisions of Prevention of Corruption Act, 1988 and Indian Penal Code, 1860 (in short IPC).

2.1 In view of a FIR being registered against the petitioner, as indicated above, the petitioner was placed under deemed suspension, on 30.03.1999.

2.2 An order for subsistence allowance was passed qua the petitioner on 19.04.1999. As a matter of fact, vide order dated 23.03.2000, the subsistence allowance qua the petitioner was enhanced.

3. Upon completion of trial, the Special-Judge vide judgment dated 29.09.2009, acquitted the petitioner.

3.1 Consequent thereto, on 08.04.2010, the petitioner was re-instated in service. By the very same order the competent authority indicated that the period of suspension qua the petitioner will be treated as period spent on duty for the purposes of pensionary benefits. The pay and allowances for the period of suspension were, however, restricted to the extent of subsistence allowance already paid to the petitioner.

3.2 The petitioner, was aggrieved by the same, as according to him, he was entitled to full pay and allowances for the period of suspension, consequent upon his acquittal in the criminal proceedings.

4. Resultantly, on 07.10.2010, the petitioner preferred a representation with the respondent. The said representation was followed by yet another representation dated 24.03.2011. By an order dated 04.04.2011, the petitioner’s representation was rejected. It is in this background that the petitioner has moved the present writ petition.

5. Mr Dalal, learned counsel for the petitioner, says that once the petitioner was acquitted, he was entitled to payment of full pay and allowances for the period of suspension. It is his contention that the impugned order was flawed for the reason, it adopted a wrong test, which is, as to whether his acquittal was honourable or, based on the ground of benefit of doubt. According to Mr Dalal, that test was no longer applicable after the amendment made in Fundamental Rule 54B, whereby, the expression “honourable acquittal”, stood deleted.

5.1 Mr Dalal also submitted that the order dated 08.04.2010, was also, illegal in view of the fact that principles of natural justice had been violated, in as much as, no notice was given by the competent authority before passing the said order. It is Mr Dalal’s contention that the competent authority was required to examine, if it intended to withhold the balance pay and allowances, that the suspension of the petitioner was not wholly unjustified. Mr Dalal says that the order dated 08.04.2010 does not address this spect of the matter.

5.2 In support of his submissions, Mr Dalal, relied upon the following judgments: R.L. Gupta vs Union of India & Ors. (1985) ILR 2 Delhi 565 and Mohan Lal vs Union of India & Ors. 1982 (1) SLR 573.

6. Mr Prabhakar, learned counsel for the respondent, on the other hand, said that the acquittal of the petitioner by the trial court was on account of prosecution witnesses turning hostile. He submitted that, therefore, the acquittal of the petitioner was on technical grounds and, thus, the competent authority was entitled to restrict the payment of pay and allowances, during the suspension period, to that amount, which was already paid to the petitioner. Mr Prabhakar, in support of his submissions, relied upon the judgment of the Supreme Court in the case of Greater Hyderabad Municipal Corporation vs M. Prabhakar Rao 2011 IX AD (SC) 311.

7. I have heard the learned counsels for the parties and perused the record. On consideration of the submissions made before me, and the principles enumerated in the jud