1. The appliant who was working as Assistant (G), C.F.R.I. under C.S.R.I. was, as claimed, involved in a private complaint alleging some theft and was taken into custody by Police on 10.2.1995. It is not disputed that he was released on bail on 17.5.1995 under orders of a Court. The matter thereafter having come to the notice of the authorities, an order was issued dated 27.3.1995 at Annxure-A/1 under Sub-rule (2) of Rule 10 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 (hereinafter referred to as "the 1965 Rules"), was ordered to be deemed to have been suspended with effect from 10.2.1995, further directing that he would remain under suspension until further orders.
2. While so remaining under suspension even after his release on bail, the applicant superannuated from service with effect from 31.1.1998, while he was being paid only suspension allowance as per rules. After retirement, he was paid provisional pension vide order dated 8.7.1998.
The applicant sent a representation dated 5.7.1999 for implementation of the recommendation of the 5th Central Pay Commission so far his pay, etc., were concerned. However, he was replied to that until his exoneration in the criminal case, the aforesaid implementation of the pay revision would not be done. His other representations went unheeded to.
3. Thereafter, this applicant came up this Tribunal vice O.A. 711 of 2002 disposed of on 22.4.2003 vice Annexure-A/4 for payment of retiral benefits. It is submitted that in that case he had also prayed for full pay and emoluments during the period of suspension on which, however, no order was passed. This Tribunal on consideration of the matter directed the respondents, so far deemed suspension was concerned, to pass appropriate orders for release of withheld amount of retiral dues like DCRG, leave encashment, gratuity, etc., along with interest as also to pass orders with regard to revision of pay and pension in accordance with law.
4. Vice Annexure-A/5 the respondents passed an order dated 11.7.2003, by which his deemed suspension order dated 27,3.1995 was revoked under Clause (c) of Sub-rule (5) to Rule 10 of the 1965 Rules but with effect from 31.1.1998. In Exercise of the powers conferred under Rule 54B(1) of the Fundamental Rules, the Competent Authority also directed that the applicant would not be paid pay and allowance for the period under suspension except what he had been paid as subsistence allowance and that the period of suspension would be treated as spent on duty for the purposes of the pensionary benefits.
5. Against this order, this applicant has moved this Tribunal in the instant application praying therein to quash the order at Annexure-A/5 so far the applicant was denied salary and emoluments during the period of suspension (10.2.1995 to 31.1.1998) in spite of treating that period to be on duty, and to direct the respondents to pay his remunerations for the period, with interest.
6. The respondents in their written statement, besides other points have said that the period of suspension was to be treated as on duty only for the purpose of pensionary benefits, and not otherwise, hence he was not entitled to the remunerations for the period of suspension, claiming that the applicant has already been paid interest vide cheque (for payment of pensionary benefits).
7. The learned Counsel for the applicant has argued that the provision of deemed suspension under Rule 10(2) of the 1965 Rules is a legal fiction and that evaporates as soon the employee is released on bail.
For better appreciation of argument on this point, Rule 10 of the 1965 Rules may be perused which is as follows: 10. Suspension(1) The Appointing Authority or any authority to which it is subordinate or the disciplinary or any other authority empowered in that behalf by the President, by general or special order, may place a Government servant under suspension.
(2) A Government servant shall be deemed to have been placed under suspension by an order of Appointing Authority, (a) with effect from the date of his detention, if he is detained in custody, whether on a criminal charge or otherwise, for a period exceeding forty-eight hours; (b) with effect from the date of his conviction, if , in the event of a conviction for an offence, he is sentenced to a term of imprisonment exceeding forty-eight hours and is not forthwith dismissed or removed or compulsorily retired consequent to such conviction.
ExplanationThe period of forty-eight hours referred to in Clause (b) of this sub-rule shall be computed from the commencement of the imprisonment after the conviction and for this purpose, intermittent periods of imprisonment if any shall be taken into account.
(3) Where a penalty of dismissal, removal or compulsory retirement from service imposed upon a Government servant under suspension is set aside in appeal or on review under these Rules and the case is remitted for further inquiry or action or with any other directions, the order of his suspension shall be deemed to have continued in force on and from the date of the original order of dismissal, removal or compulsory retirement and shall remain in force until further orders.
(4) Where a penalty of dismissal, removal or compulsory retirement from, service imposed upon Government servant is set aside or declared or rendered void in consequence of or by a decision of a Court of law and the Disciplinary Authority on the consideration of the circumstances of the case decides to hold a further inquiry against him on the allegations on which the penalty of dismissal, removal or compulsory retirement was originally imposed, the Government shall be deemed to have been placed under suspension by the Appointing Authority from the date of the original order of dismissal removal or compulsory retirement and shall continue to remain under suspension until further orders: Provided that no such further inquiry shall be ordered unless it is intended to meet a situation where the Court has passed an order purely on technical grounds without going into the merits of the case.
(5) (a) An order of suspension made or deemed to have been made under this rule shall continue to remain in force until it is modified or revoked by the authority competent to do so.
(b) Where a Government servant is suspended or is deemed to have been suspended (whether in connection with any disciplinary proceeding or otherwise), and any other disciplinary proceeding is commenced against him during the continuance of that suspension, the authority competent to place him under suspension may, for reasons to be recorded by him in writing direct that the Government servant shall continued to be under suspension until the termination of all or any of such proceedings.
(c) An order or suspension made or deemed to have been made under this rule may at any time be modified or revoked by the authority which made or deemed to have been made the order or by any authority to which that authority is subordinate.
8. From perusal of Sub-rule (2) to Rule 10, it is clear that even if no formal order is passed for suspension, a Central Government employee would be deemed to have been placed under suspension under an appropriate order with effect from the date of his detention if he has been in custody for a period exceeding forty-eight hours. Obviously, the applicant had remained in custody beyond forty-eight hours starting from 10.2.1995 and formal order about his deemed suspension was recorded vice Annexure-A/1 dated 27.3.1995. The question for consideration is as to whether on his release on bail, though criminal case might be pending, the legal fiction of deemed suspension would, or would no longer, remain in vogue and whether he would be deemed to be on duty with effect from the date of his release from custody, thereby entitling him to the pay and emoluments attached to his post from that day.
9. The learned Counsel for the respondents pointed out Sub-rule (5)(a) of Rule 10 of the 1965 Rules submitting that as per this rule, an order of suspension made or deemed to have been made under this rule shall continue to remain in force until it was modified or revoked by the authority competent to do so. The learned Counsel also submitted that, subsequently, the applicant had moved this Tribunal in an original application and after the order by the Tribunal in that O.A. vice Annexure-A/5 dated 11.7.2003 was recorded, the deemed suspension was revoked with effect from 31.1.1998, the date on which the applicant in the afternoon had: superannuated. It was also argued that, therefore, the deemed suspension would continue from the date of imprisonment up to the date mentioned in the order recorded under Sub-rule (5)(a), by the Competent Authority.
10. In this regard a decision of the Division Bench of the Principal Bench of this Tribunal in the case-of Shib Lal v. Union of Indian and Anr. 2003 (3) SLJ 244 may be seen in which the aforesaid point was considered also in connection with a decision of the Hon'ble Delhi High Court in the case of Rajiv Kumar v. Union of India in CWP No. 4746/ 2001 dated 31.5.2002. In that case the applicant was arrested on 8.9.1994 in a criminal case also under Prevention of Corruption Act, 1988 and had remained in judicial custody till 16.9.1994, where after was released on bail. The applicant was placed under deemed suspension on 8.11.1994 under Sub-rule (2) of Rule 10 of the 1965 Rules with effect from the date of detention, with further direction that the applicant would remain under suspension until further orders, as has been done in the instant case also. Thereafter, a memorandum under Rule 14 of the 1965 Rules for a disciplinary proceeding was served upon the applicant on the same set of facts, which proceeding was ordered to be kept in abeyance till the outcome of the criminal proceeding.
11. In the case of Rajiv Kumar (supra) the continuance of the deemed suspension was challenged and argument was made that in absence of any fresh order recorded by the respondents under Rule 10(1) of the 1965 Rules, the suspension of the applicant had to be deemed to have been set aside and the applicant to be on duty with effect from the date of his release from custody on bail. In the case of Rajiv Kumar also the order of authority contained the stipulation that suspension would remain in force till further orders. The findings of the Hon'ble Delhi High Court in the relevant paragraphs were reproduced by the Principal Bench in that order which are as follows: On a bare perusal of Sub-rule 2(1) of Rule 10 of the Rules, it would appear, a legal fiction has been created so that a person would be deemed to be under suspension w.e.f. the date of his detention, if he is in custody for a period of exceeding 48 hours. For the purpose as a legal fiction has been created no actual order need be passed.
A bare perusal of provisions of Sub-rules (3) and (4), it would appear that such legal fiction had been created therein as if an order which has been passed would remain in force until further orders.
It may be true that an order of suspension made or deemed to have been made having regard to Sub-rule (5)(a) of Rule 10 would continue to remain in force unless it is modified or revoked by the authority competent to do so but Sub-rule (5)(b) appears to have been made 'ex majori cautela'. Suspension pending a departmental proceeding or in contemplation thereof or when a criminal offence is under investigation, inquiry or trial is covered by Sub-rule (1) of Rule 10. A person, if he is sought to be or is placed under suspension only because a departmental proceeding is contemplated or pending or if he is involved in any criminal case, which is under investigation, inquiry or trial, a Competent Authority is required to apply his own mind and pass an appropriate order which would necessitate instructions of the relevant facts, viz., whether, in the facts and circumstances of this case and having regard to the nature of offence and the position held by the delinquent employee, an order of suspension is required to be passed or not.
Whereas Sub-rule (1) of Rule 10 thus contemplates passing of an order of suspension upon application of mind suspension under Sub-rule (2) of Rule 10 would be automatic.
Such a legal fiction, it is trite should not be extended beyond its scope and object.
It is well settled principle of law that statute has to be construed having regard to the provisions contained in other provisions thereof. The legislature is presumed to have used certain expressions keeping in view certain purposes. If Sub-rule (5) of Rule 10 would have converted Sub-rules (2), (3), and (4), expressions "and shall remain in force until further orders" in Sub-rules (3) and (4). Once it is held that the terms of Sub-rule (5) (a) or Rule 10 even an order of suspension would continue to remain in force unless it is modified or revoked by the authorities competent to do so, the words "and shall remain in force until further orders' employed in Sub-rules (3) and (4) would become otiose.
Sub-rule 2-A of Rule 10 of the Rules does not contain any provision where from it can be deduced that deemed suspension would continue unless it is withdrawn despite the fact that on plain reading thereof the same comes to an end by operation of lay.
For proper interpretation of the said provisions the object thereof must be taken into consideration. Although no order of suspension is passed, if a person remains in detention, he would be treated to be under suspension if the same continued for a period of more than 48 hours. By reason of a legal fiction he would be placed under deemed suspension but as soon as he comes out of detention, legal fiction would serve out its purpose.
In the instant case the petitioner had been in police custody from 26th March, 1998 to 2nd April, 1998. The impugned order of suspension had been passed on 15th May, 1998. Such an order of suspension after release of the petitioner on bail could not have been passed purported to be under Rule 10 (2) of the Rules. Such an order could have been passed only in terms of Sub-rule (1) of 10, wherefore proper application of mind was necessary.
12. The Principal Bench also noticed that the aforesaid writ petition in the case of Rajiv Kumar was allowed with liberty to the respondents to pass an appropriate order in the event the Appointing Authority deemed that fit and proper.
13. The case of the present applicant stands on a better footing as no departmental proceeding was ever contemplated against him as per materials on the record.
14. The Principal Bench also allowed the application in the case of Shib Lal.
15. From the aforesaid discussion of law on the point, the conclusion would be that the provision of "deemed suspension" is a legal fiction which would end as soon the concerned employee comes out of detention on grant of bail or otherwise. Further continuance of (deemed) suspension would not be legal unless a fresh order is passed in terms of Sub-rule (1) of Rule 10 of the 1965 Rules, on application of mind. A situation which automatically emerges on happening of a particular event, must go as soon that particular event ceases to exist.
16. It, therefore, has to be held that the deemed suspension of the applicant ended with effect from the date of his release on bail, that is, w.e.f. 17.5.1995. Thereafter, the applicant would be deemed to be on duty if the suspension order was not extended by a fresh order of the Competent Authority under provision of Sub-rule (1) of Rule 10 of the 1965 Rules.
17. The next question to be decided is whether the applicant would be entitled to full back wages for the period he was kept under suspension.
18. To decide this question an important factor to be notice is that though the applicant had been granted bail on 17.5.1995 and when even after that when he was not placed back on duty, he for the first time had come to this Tribunal in the year 2002 by filing O.A. 711/2002.
This would be an important point to consider for deciding as to whether the principle of 'no work, no pay' would be applicable in his case as has been contended by the learned Counsel for the respondents which is in tune with the subsequent order recorded by the respondents at Annexure-A/5, as already seen.
19. On the other hand, it has been argued by the learned Counsel for the applicant that in similar cases (including cases referred to above in this order) payment of full back wages have been ordered.
20. In so far as payment of back wages is concerned, that has to be decided in the particular circumstances of a case. Their Lordships of the Apex Court in the case of CM., Haryana Roadways v. Rudhan Singh 2005 SCC (L & S) 716 : 2005 (3) SLJ 170 (SC) have held as follows: There is no fundamental rule that in every case where the Industrial Tribunal gives a finding that termination-of service was in violation of Section 25F of the Act, entire back wages should be awarded.
21. Taking note of a number of decisions of the Apex Court in that regard, Their Lordships also held that those decisions showed that an order of payment of back wages should not be passed in a mechanical manner, but several factors arc to be taken into consideration before passing any order for award of back wages. I have already noticed in this order that even though the applicant was released on bail, for years together he did not agitate his right to reinstatement in which case he could get his wages for the period, rather came up before this Tribunal for the first time even years after his superannuation.
Therefore, the applicant allowed himself to sit idle without doing any work thereby facilitating himself an opportunity to demand entire back wages without doing any work till his superannuation.
22. The question, therefore, would be as to what amount of back wages, if any, should be paid to him.
23. The Apex Court in the case of Saran Kumar Gaur v. State of U.P.1993 Supp.(2) SCC 749 had held that when work was not done, remuneration was not to be paid and did not make any direction for award of past salary.
24. In the case of Slate of U.P. v. Aral Bihari Shastri 1973 SCC (L%S) 423 : 1992 (3) SLJ 206 9SC), the facts were that termination order was passed on 15.7.197. aginest a Licensed Inspector which was finally quashed by the concerned High Court in a writ petition on 27.11.1991 and a direction was issued to pay entire back wages, from the dale of termination till the date of attaining superannuation. Their Lordships of the Apex Court in dip absence of a clear finding that the employee was not gainfully employed during the relevant period, set aside that part of the order of the High Court and substituted that by ordering payment of a lump-sum of Rs. 25.0OO.25. Similar order was passed for payment of compensation by a lump-sum instead of full back salary in the case of Surjit Ghosh v. Chairman and MD. UCO Hank 1995 SCC (L & S) 529.
26. In view of the aforesaid situation the irresistible conclusions would be that where the respondents had faulted in continuing the deemed suspension of the applicant beyond the period he was released on bail without issuance of a fresh order as already discussed, the applicant also did not press for that by taking recourse to law if that was not done or if his prayer to do so was not accepted, thereby he contributed to his non-reinstatement after release from custody though he was to retire roughly after two and half years from the date of his release from custody. In such a situation, in my opinion, the applicant would be entitled to a proper compensation instead of all back wages, besides treating of the period of suspension to be on duty for the sake of pensionary benefits.
27. The applicant during the hearing of the case was directed to file a supplementary application to show as to how much money he had lost on account of non-payment of full salary and allowances, taking into account the amount paid to him as subsistence allowance. Such an application was lilcd claiming that he had lost a total of Rs. 2.28.679 vice chart attached out of which he had received 50 percent as subsistence allowance, and the amount due to be paid was about Rs. 1,15,000.
28. Basing the decision on this chart, in my opinion the cause of justice would be served if the respondents are directed to pay, as compensation, a sum of Rs. 30,000 to the applicant. The applicant would also be entitled to have his pension and other retrial benefits recast also on the basis of the increments that he might have received had he continued in service alter his release on bail, if that lias not been done while computing his provisional pension. That would also be taken into account while calculating his full pension, if such an occasion arises in future after disposal of the criminal case.
29. In the result, the portion of the order dated 11.07.2003 at Anncxure-A/5, in so far as it relates to the order that the applicant would not be paid, for the period of suspension, anything beyond what has been paid to him as subsistence allowance, is quashed. This application is, thus, allowed in part in terms of the order recorded above. No costs.