The legal principle established is that a period of suspension due to criminal charges, though treated as non-duty, should be counted towards pension if there is no break in service.

As per Sanjay Yadav, J.: -

Challenge in this petition is to an order passed by the Central passed by the Central Administrative Tribunal, Bench Jabalpur on 26-5-2009; whereby, Original Application preferred by petitioner against the order dated 3-7-2006 passed by respondents was dismissed.

2. By order dated 3-7-2006, the period from 30-7-1999 to 11-8-2000 during which the petitioner was under suspension because of the prosecution of the petitioner for a charge under Section 302 in alternate under Sections 306 and 498 of the Indian Penal Code, has been treated as non-duty and the period though not treated as break in service has not been counted for the purpose of pension.

3. Petitioner was employed under the respondent No. 3, Gun Carriage Factory, Jabalpur as Lower Division Clerk. For an offence initially registered under Sections 498-A and 304-B of IPC, the petitioner later on was tried for an offence under Section 302 in alternate under Sections 306 and 498, IPC. Because of the arrest and the launching of prosecution, the petitioner was placed under suspension by order dated 28-8-1999. The petitioner was exonerated of the criminal charges and the order of acquittal was recorded on 4-7-2000 by the Seventh Additional Sessions Judge, Jabalpur. The acquittal led to revocation of suspension. The petitioner in pursuance, resumed his duties on 12-8-2000.

4. The petitioner after his reinstatement was subjected to a show-cause notice regarding the period of suspension. After considering the representation respondents passed, an order on 3-7-2006 whereby the period from 30-7-1999 to 11-8-2000 was directed to be treated as non-duty without additional pay and allowance, except the subsistence allowance already paid and the period will not count for pension and other benefits but will not constitute as break in service.

5. The operative part of the order dated 3-7-2006 read thus :-

XXX XXX XXX

Aggrieved, petitioner filed an original application before Central Administrative Tribunal.

6. The Tribunal relying on the decisions by the Supreme Court in Ranchhodji Chaturji Thakore Vs. Supdt. Engineer, Gujarat Electricity Board, (1996) 11 SCC 603, Union of India Vs. Jaipal Singh, (2004) 1 SCC 121 and Baldev Singh Vs. Union of India, 2006 SCC (L & S) 35 and Management of Reserve Bank of India Vs. Bhopal Singh Panchal, AIR 1994 SC 552, declined to interfere with the order dated 3-7-2006.

7. Aggrieved, petitioner is before us vide this petition under Article 227 of the Constitution of India.

8. Contentions put-forth by the learned Counsel for the petitioner is that the Tribunal has erred in distinguishing the decisions in Uma Shankar Choubey Vs. Union of India andothers, W'.P. No. 1363/2001, decided on 14-3-2006 and Munnalal Mishra Vs. Union of India and others, 2005(3) M.P.H.T. 125. It is also contended that the Tribunal failed to appreciate that the authority concerned had failed to exercise the discretion vested in it vide Fundamental Rule 54-B.

9. Respondents on their turn support the order dated 3-7-2006 as well as the order passed by the Tribunal.

10. The question as to how the period of suspension, where the suspension is because of the criminal prosecution, on its revocation after acquittal of the Government servant, is it to be treated, is governed by Rules, viz., Fundamental Rules 54-B. Sub-rules (1), (3) and (8) of F.R. 54-B are relevant in the context. These sub-rules stipulate : -

"F.R. 54-B. - (1) When a Government servant who has been suspended is re-instated or would have been so re-instated but for his retirement on superannuation while under suspension, the authority competent to order re-instatement shall consider and make specific order : -

(a) regarding the pay and allowances to be paid to the Government servant for the period of suspension ending with re-instatement or the date of his retirement on superannuation, as the case may be, and (Mr. Sanjay Yadav, J.)

(b) whether, or not the said period shall be treated as a period spent