Page 1 REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

WRIT PETITION (CIVIL) NO. 200 OF 2006

Gurpal Singh ...Petitioner

VERSUS

High Court of Judicature for Rajasthan ...Respondent

J U D G M E N T

SURINDER SINGH NIJJAR, J.

1.In this petition, under Article 32 of the Constitution of

India, the petitioner seeks a writ in the nature of Certiorari

for quashing the order of suspension dated 20

th

December,

1985 by declaring the same to be void-ab-initio. The

petitioner also claims a declaration that the order dated 24

th

January, 2009 is void and that the petitioner is entitled to

all benefits for the period of suspension from 20

th

December, 1985 till 26

th

March, 2008, when he was

reinstated in service.

1

Page 2 2.We may briefly advert to the relevant facts on the basis of

which the petitioner claims the aforesaid relief.

3.On 28

th

December, 1979, the petitioner was selected by the

Rajasthan Public Service Commission (R.P.S.C.) for the post

of Assistant Public Prosecutor Grade II. He served on the

said post till 28

th

July, 1980. On the very next day,

i.e. 29

th

July, 1980, he was selected for appointment to the

Rajasthan Judicial Service and joined as Judicial

Magistrate First Class. For sometime, he remained posted

at Banswara as Judicial Magistrate. During this period, his

judgments were graded as above average and integrity as

“beyond doubt”. In the inspection report, it was further

remarked that “his behaviour with members of the Bar,

litigants and the persons coming to the Court needs

improvement”. It appears that he was not on best of terms

with the local Bar, which led to his transfer.

4.On 24

th

November, 1985, at about 10.30 p.m., a dead body

was found near Ajmer Pulia on the railway track in the city

of Jaipur. The dead body was identified as that of one Mr.

2

Page 3 Suresh Chand Gupta, Advocate. A ‘Marag’ (death) case was

registered on 24

th

November, 1985, at Serial No. 35/85 at

Police Station GRP, Jaipur. It appears that the local bar

association of which the deceased was a member protested

that proper investigation was not being conducted about

the manner in which Mr. Suresh Chand Gupta was found

dead on the railway track. The members of the Bar

Association insisted that his death was result of some foul

play. On 11

th

December, 1985, that is about 20

days after the incident, wife of the deceased gave a written

complaint, alleging that the Petitioner was involved in the

murder of her husband. In her written complaint, she

alleged that her husband had informed her about three

months prior to the incident that the petitioner had

demanded a sum of Rs.1 lac for exercising his influence

with the high-ups, in securing the appointment of the

deceased as a member of Board of Revenue. She claimed

that the money which was paid to the petitioner was

arranged by her deceased husband by selling a plot of land.

He had also borrowed money from her father and other

relatives. Inspite of having paid the aforesaid money, her

3

Page 4 husband was not provided any appointment. Consequently,

her husband had been insisting that the petitioner return

the amount unnecessarily paid to him. She claimed that

the petitioner had agreed to return the money and asked

her husband to meet at a pre-arranged place. Her husband

left home at 5.00 p.m. on 24

th

November, 1985 and did not

return. She, therefore, concluded that the petitioner must

have killed her husband on account of the dispute over

money.

5.Upon coming to know about the complaint made by the wife

of the deceased, the petitioner himself went to the Police

Station on 18

th

December, 1985 and offered to join the

investigation. He requested the police to complete the

investigation as soon as possible, as in the meantime, he

has been transferred and had to join at Vallabhnagar. In

the meantime, the local bar association continued the

agitation against the inaction of the police. The lawyers

resorted to strike and the work at the Courts was paralysed

for many days to come. The situation was so grave that

when the application of the petitioner for anticipatory bail

4

Page 5 came up for hearing before the High Court on 20

th

December, 1985, members of the Bar Association did not

allow the advocate of the petitioner to argue the case. The

petitioner relies on the order passed by M.B. Sharma, J. on

20

th

December, 1985, which is as under:-

“20.12.1985

Mr. M.I. Khan, Public Prosecutor for the State.

The bail application was fixed for orders at

2.00 p.m. and the Public Prosecutor had sought

time to get the case diary from the Investigating

Officer. I am in the court for last 15 minutes, but

the entry to the Court has been blocked by the

advocates and others. It is for the members of the

August profession to consider how far it is justified.

The advocate for the petitioner could not come to

the court because of that blockade. Hence the case

cannot be taken up. I have no option but to retire

to the Chamber. The case is adjourned to January

2, 1986.

Sd/- Sharma, M.B.”

6.Thereafter, the High Court was closed for winter break on

21

st

December, 1985. On 20

th

December, 1985, the

petitioner was formally arrested and taken into custody by

the police (CBI, Jaipur). He was placed under suspension

on 22

nd

December, 1985 w.e.f. 20

th

December, 1985. Since

the petitioner had already been arrested, the anticipatory

5

Page 6 bail application was dismissed as having become

infructuous on 2

nd

January, 1986. In view of the volatile

atmosphere, the petitioner apprehended that he would not

get a fair trial in the Criminal Case No. 3/86 pending before

the Sessions Judge, Jaipur against him. He, therefore,

approached this Court with a prayer for transfer of the

criminal trial. By Order dated 4

th

August, 1986,

this Court transferred the trial in the aforesaid criminal

case to a Court of competent jurisdiction in Delhi.

Thereafter, the trial was duly conducted at Delhi.

By judgment and order dated 1

st

May, 2002, the petitioner

was acquitted by the Additional Session Judge, Delhi.

7.Upon acquittal by the trial court, the petitioner submitted a

joining report on 6

th

May, 2002 to the Registrar General,

Rajasthan High Court. The request made by the petitioner

remained under consideration of the High Court from the

said date. The decision was deferred to await the result of

the appeal, if any, preferred against the acquittal of the

petitioner. It appears that an appeal was filed by the CBI,

6

Page 7 which, however, came to be dismissed by a Division Bench

of the Delhi High Court on 27

th

September, 2005.

8.The petitioner submitted his joining report

on 3

rd

October, 2005. However, no action was taken by the

High Court. It was only on 17

th

November, 2005 that he was

directed to mark his attendance at the office of the District

and Session Judge, Jaipur. By this time, the petitioner had

been under suspension for a period of 20 years. He,

therefore, submitted another representation on 2

nd

March,

2006 setting out the grievances and seeking permission to

appear in person before the Chief Justice.

9.In the meantime, the petitioner came to know that instead

of revoking the order of suspension, the High Court may

initiate disciplinary proceedings against him. At that stage,

the petitioner was only about 2 years short of the age of

superannuation. He, therefore, moved the present Writ

Petition, seeking immediate revocation of the order of

suspension and consequential benefits. On 8

th

May, 2006,

it was brought to the notice of this Court that after filing of

7

Page 8 the writ petition, the High Court has initiated the

departmental proceedings against the petitioner, but no

fresh order of suspension has been passed. It was,

therefore, submitted that direction be issued to the High

Court to reinstate the petitioner forthwith. This Court

issued notice on the Writ Petition and also on the

application for ex-parte stay. Subsequently, the matter

came up for hearing on 25

th

January, 2007

when this Court directed that the matter be posted for final

disposal in the last week of March, 2007. On 4

th

January, 2008, it was submitted on behalf of the

respondent that the enquiry proceedings were in progress

against the petitioner. Therefore, this Court directed the

High Court to complete the enquiry within a period of eight

weeks and submit its report.

10.The enquiry was duly completed. In the Enquiry Report

dated 27

th

February, 2008, the petitioner was exonerated of

the charges levelled against him. It was only at that stage,

that he was reinstated with immediate effect, by order dated

26

th

March, 2008. The orders passed by the respondent

8

Page 9 were placed on the record of these proceedings with the

affidavit dated 22

nd

April, 2008 filed by the Registrar (Writs).

The petitioner was, thereafter, given the posting order at

Vijai Nagar on 12

th

May, 2008. He retired from service on

attaining the age of superannuation on 30

th

June, 2008.

11.It appears that the trials and tribulations of the petitioner

did not come to an end, even after retirement. In fact

on 24

th

January, 2009, an order was issued on the basis of

the resolution passed by the Full Court in its meeting held

on 29

th

November, 2008, wherein it was resolved as under:-

“ RAJASTHAN HIGH COURT, JODHPUR

ORDER

No. Estt. (RJS) 15/2009 Date :- 24.01.2009

WHEREAS SHRI GURPAL SINGH, RJS

presently retired was placed under suspension vide

this office Order No. Estt. (RJS) 199/85 dated

22.12.1985.

AND WHEREAS it was decided that regular

disciplinary proceedings under rule 16 of the

Rajasthan Civil Service (Classification, Control &

Appeal) Rules, 1958 be initiated against Shri Gurpal

Singh, RJS presently retired.

AND WHEREAS Hon’ble the Chief Justice in

exercise of the powers conferred by Rule 13 of the

9

Page 10 Rajasthan Civil Service (Classification, Control &

Appeal) Rules, 1958 read with Full Court Resolution

dated October 30, 1971 was pleased to order that

on account of initiation of a regular enquiry under

rule 16 of Rajasthan Civil Service (Classification,

Control & Appeal) Rules, 1958 the suspension of

Shri Gurpal Singh shall continue.

AND WHEREAS Departmental Enquiry under

rule 16 of the Rajasthan Civil Service (Classification,

Control and Appeal) Rules, 1958 was initiated

against said Shri Gurpal Singh vide Memorandum

No. Estt. B2(iii) / /2006/1544 dated

20.04.2006.

AND WHERAS in the above departmental

enquiry said Shri Gurpal Singh has been

exonerated vide order No. Estt. (RJS) 25/2008

dated 26.03.2008.

AND WHEREAS, Shri Gurpal Singh has been

reinstated with immediate effect as Civil Judge (Jr.

Div.) & Judicial Magistrate in the RJS vide order No.

Estt. (RJS) 26/2008 dated 26.03.2008.

AND WHEREAS the matter regarding

regularization of suspension period of Shri Gurpal

Singh was considered by the Hon’ble Full Court in

its meeting held on 29.11.2008 and it was resolved

as under:-

“Perused office note and relevant record.

RESOLVED that period of his suspension shall be

treated as a period spent on duty, but without

salary except subsistence allowances already paid

to him. However, this will not effect (sic) his

pensionary benefits but he will not be entitled for

any promotion.”

NOW THEREFORE, the period of his

suspension shall be treated as a period spent on

10

Page 11 duty, but without salary except subsistence

allowances already paid to him. However, this will

not effect (sic) his pensionary benefits but he will

not be entitled for any promotion.

BY ORDER

Sd/ 24.01.2009

REGISTRAR (ADMN.)”

12.The petitioner, therefore, sought amendment of the writ

petition through I.A. No. 6 of 2009. The aforesaid

application for amendment was allowed by this Court on

27

th

February, 2009. After the amendment, the counter

affidavit was filed by the respondents to the amended writ

petition. The matter was heard by this Court on a number

of occasions. On 5

th

April, 2011, this Court passed the

following order:-

“Having regard to the facts of the case, this Court is

of the opinion that interest of justice would be

served if the High Court is given an opportunity to

pass appropriate orders under Rule 54 of

the Rules. Therefore, the matter is remitted

to the High Court on its administrative side to pass

appropriate orders under Rule 54. The High Court

shall issue notice to the petitioner and

afford him an opportunity of hearing by calling

upon him to file reply to the notice. The High Court

shall thereafter consider the reply and

pass a reasoned order under Rule 54 of the Rules

of 1951. This exercise shall be completed as early

11

Page 12 as possible and without any avoidable

delay but in any case not later than six weeks from

today. The High Court to file the order which may

be passed by it in the present proceedings.”

13.Pursuant to the aforesaid direction, it appears that a

Committee was constituted by the Rajasthan High Court

(hereinafter referred to as ‘Committee’) to examine the case

of the petitioner, in terms of Rule 54 of the Rajasthan

Service Rules, 1951 (hereinafter referred to as “1951 Rules”)

for determining “whether his suspension was wholly

justified or wholly unjustified or partly justified and to what

extent, he was entitled for salary and/or full salary during

period of suspension?”

14.In this respect, a notice dated 25

th

April, 2011 was sent to

the petitioner by the Registrar (Admn.), directing him to file

a reply, and remain present before the aforesaid Committee

on 5

th

May, 2011. In response to the said notice, the

petitioner submitted a detailed reply dated 2

nd

May, 2011

and appeared before the Committee on 5

th

May, 2011.

Thereafter on 16

th

May, 2011, the Committee

passed the following order:

12

Page 13 “THEREFORE, in the present facts &

circumstances (Supra), period during which Shri

Gurpal Singh remained under Suspension cannot

be said to be wholly unjustified and sub-rule (2) of

R. 54 of RSR in negative form where the authority

has to examine as to whether suspension was

wholly unjustified. However, after going through

complete material on record (supra), the Court is of

the view that in the given facts & circumstances

(supra), suspension of Shri Gurpal Singh cannot be

said to be wholly unjustified and what he was

entitled for under law has been paid to him in terms

of Resolution of Full Court dt.29.11.2008 (supra)

conveyed vide order dt. 24.01.2009.”

15.It becomes clear from the perusal of the aforesaid order

that the Rajasthan High Court after giving an opportunity of

hearing to the petitioner, reiterated the Resolution of the

Full Court dated 29

th

November, 2008, communicated vide

order dated 24

th

January, 2009.

16.We have heard the learned counsel for the parties at

length.

17.Very elaborate submissions have been made by the learned

counsel for the parties. We may, however, briefly notice the

very crux of the submissions.

13

Page 14 18.Mr. M.R. Calla, learned senior counsel appearing for the

petitioner, submitted that the respondent has to justify the

suspension order on the day it was passed, i.e.

on 20

th

December, 1985. Further, since the suspension of

the petitioner had continued for 22 years, 3 months and 7

days, the respondent would have to satisfy the court that

such a prolong suspension was also justified. Whether or

not the order of suspension was justified, partly justified or

wholly unjustified would have to be seen in the light of

result of not only the trial in criminal case but also of the

departmental enquiry where the petitioner was proceeded

against by the department. According to the learned senior

counsel, whilst taking a decision under Rule 54 of the 1951

Rules, the disciplinary authority was required to keep in

mind the outcome of the criminal trial and the

departmental proceeding.

19.Relying on some judgments of this Court, Mr. Calla had

submitted that an employee who is suspended due to the

pendency of the criminal investigation/trial has to be

reinstated upon acquittal. Further upon reinstatement, he

14

Page 15 would be entitled to full salary and allowances for the

period he is kept under suspension. According to the

learned senior counsel, an acquittal either by trial court or

by the appellate court would relate back to the date on

which the order of suspension was passed. Mr. Calla then

submitted that in the facts of this case, the petitioner was

suspended due to the registration of the criminal case

against him. At the time when the petitioner was acquitted

he was entitled to be reinstated. However, since an appeal

was filed against the acquittal by the CBI, the petitioner was

neither reinstated nor his suspension was revoked. Even

when the aforesaid appeal was dismissed by the High

Court, the request of the petitioner for reinstatement was

not considered. This, according to Mr. Calla, was a

second stage when the appellant was entitled to

reinstatement and to the payment of full salary and

allowances. Mr. Calla further pointed out that even after

acquittal, the appellant was unjustly subjected to a

departmental enquiry. The charges in the departmental

enquiry were based on the facts, which were alleged to be

the motive for the murder. Since the petitioner was

15

Page 16 acquitted in the criminal trial, the departmental

proceedings against him were wholly unjustified. Therefore,

according to Mr. Calla, the continuation of suspension was

also wholly unjustified.

20.Even at this stage, the respondent did not pass any order

under Rule 54 of the 1951 Rules. It was only on the

directions issued by this Court on 5

th

April, 2011 that the

respondent examined the case under Rule 54 and passed

the necessary order on 16

th

May, 2011. It was also

submitted that the order passed on the directions of this

Court on 16

th

May, 2011 is contrary to the order passed by

the High Court on 24

th

January, 2009. The

latter order was passed after the petitioner was reinstated

in service on 26

th

May, 2008, regarding regularization of the

suspension period of the petitioner. In the order passed

under Rule 54, the High Court had concluded that the

period during which the appellant was kept under

suspension shall be treated as a period spent on duty, but

without salary except subsistence allowance already paid to

him. Even this order was passed during the pendency of the

16

Page 17 present petition. Mr. Calla then submitted that not only the

petitioner has been deprived of full pay and allowances

during the period of suspension, but even his case for

promotion was not considered with effect from the date a

person junior to him was considered for promotion and

promoted.

In support of his submission, Mr. Calla had relied on a

number of judgments which are as under :

Shri Manni Lal Vs. Shri Parmai Lal & Ors.

1

,

Muhammad Ayoob Khuhro Vs. Emperor

2

, Robert

Stuart Wauchope Vs. Emperor

3

, Vidya Charan Shukla

Vs. Purshottam Lal Kaushik

4

, O.P. Gupta Vs. Union of

India & Ors.

5

, R.P. Kapur Vs. Union of India & Anr.

6

,

Commissioner of Police, New Delhi Vs. Narender

Singh,

7

Corporation of the City of Nagpur, Civil Lines,

Nagpur & Anr. Vs. Ramchandra & Ors.

8

, Jasbir Singh

Vs. Punjab & Sind Bank & Ors.

9

, The Divisional

1

(1970) 2 SCC 462

2

AIR (33) 1946 SIND 121

3

(1933) 61 ILR 168

4

(1981) 2 SCC 84

5

(1987) 4 SCC 328

6

(1964) 5 SCR 431

7

(2006) 4 SCC 265

8

(1981) 2 SCC 714

9

(2007) 1 SCC 566

17

Page 18 Superintendent, Northern Railway & Anr. Vs. R.B.

Hanifi

10

, Govind Prasad Vs. Union of India,

11

Union of

India & Ors. Vs. K.V. Jankiraman & Ors.

12

, Union of

India & Ors. Vs. Sangram Keshari Nayak

13

, Sulekh

Chand & Salek Chand Vs. Commissioner of Police &

Ors.

14

, State of Kerala & Ors. Vs. E.K. Bhaskaran

Pillai

15

, Union of India & Ors. Vs. Lt. Gen. Rajendra

Singh Kadyan & Anr.

16

21.Mr. Pallav Shishodia, learned senior counsel on behalf of

Respondent No.1, sought dismissal of the present writ

petition, inter-alia, on the ground of delay. It was pointed

out that there is a delay of more than 20 years in

challenging the order of suspension dated 20

th

December,

1985. The learned senior counsel, in response to

submissions of Mr. Calla, submitted that the initial

suspension of the petitioner and further continuation of the

same, during the criminal trial; during pendency of the

10

(1976) Lab. I.C. 1403

11

(1980) RLW 258

12

(1991) 4 SCC 109

13

(2007) 6 SCC 704

14

1994 Supp (3) SCC 674

15

(2007) 6 SCC 524

16

(2000) 6 SCC 698

18

Page 19 appeal against acquittal; and during the pendency of the

departmental enquiry; was not “only justified, but

imperative,” in the view of “sensitive nature of judicial work”

which was being undertaken by him. It was also submitted

that since it is never possible to anticipate the outcome of a

criminal trial or disciplinary proceedings which may

eventually lead to acquittal or exoneration, as the case may

be, suspension of the petitioner cannot be termed as

“wholly unjustified”. In addition, Mr. Shishodia pointed out

that the petitioner was acquitted by the trial court on

“benefit of doubt”. Further, dismissal of the appeal against

acquittal does not in any manner affect the legal position.

22.It had also been pointed out by Mr. Shishodia that since

there is no allegation of suspension being “mala-fide,

vindictive or otherwise motivated”, there remains no reason

to interfere with the impugned order dated 24

th

January,

2009, as affirmed by the order dated 16

th

May, 2011. The

learned senior counsel had also submitted that there is no

challenge to the order dated 16

th

May, 2011 in the present

writ petition, nor the petitioner had made a submission that

19

Page 20 his prosecution by the CBI was malicious or otherwise

vitiated. In the light of aforesaid submissions, it was

contended that suspension pending criminal proceedings

and/or departmental enquiry was fully justified. Mr.

Shishodia has also argued that the order denying full pay to

the petitioner was passed by the High Court, in bonafide

exercise of its powers and on the basis of well settled

interpretation of Rule 54 of the 1951 Rules.

23.The learned senior counsel, relying upon a number of

judgments of this Court, had further contended that

matters relating to the grant of salary, promotions and

other benefits to an employee during the period of his

suspension are subject to the discretion of the employer.

The employer has to strike a balance between the rights of

the employee and the imperatives of an institution. He

submitted that the High Court, acting in a fair, objective

and reasonable manner, has drawn the line so as to avoid

any disproportionate penalty. It has struck a balance

between the entitlement of the petitioner and imperatives of

20

Page 21 the institution charged with public duty of administration of

justice.

24.The learned counsel had further submitted that whatever

amount was legally due to the petitioner has already been

paid to him. It had been stated that Rupees Twelve Lac

Seventy Three Thousand Eight Hundred Forty Two Only, i.e.

Rs. 12,73,842/-, have been paid to the petitioner under

various heads, like dearness allowance, subsistence

allowance, etc. Also, the petitioner gets a monthly pension to

the tune of Rupees Twenty Two Thousand Three Hundred

Eighty Five Only, i.e. Rs. 22,385/-.

The counsel relied upon the following judgments to

substantiate his contentions:

Management of Reserve Bank of India, New Delhi Vs.

Bhopal Singh Panchal

17

, Krishnakant Raghunath

Bibhavnekar Vs. State of Maharashtra and Ors.

18

, K.

Ponnamma (Smt.) Vs. State of Kerala & Ors.

19

,

Dhananjay Vs. Chief Executive Officer, Zilla Parishad,

17

(1994) 1 SCC 541

18

(1997) 3 SCC 636

19

(1997) 9 SCC 36

21

Page 22 Jalna

20

, Union of India & Ors. Vs. Jaipal Singh

21

,

Baldev Singh Vs. Union of India & Ors.

22

, N. Selvaraj

Vs. Kumbakonam City Union Bank Ltd. & Anr.

23

,

Banshi Dhar Vs. State of Rajasthan & Anr.

24

,

Divisional Controller, Gujarat SRTC Vs. Kadarbhai J.

Suthar

25

, Union of India Vs. B.M. Jha.

26

25.We have considered the submissions made by the learned

senior counsel for the parties.

26. The only issue that needs to be resolved at this stage is as

to whether the petitioner would be entitled only to the

subsistence allowance as already paid to him or full salary

and allowances, in view of his acquittal in the criminal case

and the exoneration in departmental proceedings. Related

to the aforesaid issue would be a consequential issue of

notional promotion from the date an officer junior to him

was promoted in the Rajasthan Judicial Service and the

consequential entitlement to the emoluments on the

promotional post, which in turn would determine the

20

(2003) 2 SCC 386

21

(2004) 1 SCC 121

22

(2005) 8 SCC 747

23

(2006) 9 SCC 172

24

(2007) 1 SCC 324

25

(2007) 10 SCC 561

26

(2007) 11 SCC 632

22

Page 23 amount of suspension allowance and the other retiral

benefits.

27.In our opinion, it is not really necessary to notice the ratio

in each of the judgments cited, as all of them reiterate

certain well known principles of law. We may, however,

notice some of the principles highlighted in the judgments

cited by the learned counsel. In the case of Corporation of

the City of Nagpur (supra), it is observed that it may not

be expedient to continue a departmental inquiry on the very

same charges or grounds or evidence, where the accused

has been acquitted honourably and completely exonerated

of the charges. At the same time, it is pointed out that

merely because the accused is acquitted, the power of the

authority concerned to continue the departmental inquiry is

not taken away nor is its discretion in any way fettered.

28.The same principle is reiterated in the case of

Commissioner of Police, New Delhi Vs. Narender Singh

(supra).

23

Page 24 29.In Jasbir Singh’s case (supra), the appellant was a

confirmed peon in the respondent Bank. On an allegation

that he had forged the signature of a depositor R and

fraudulently withdrawn a certain sum, a departmental

proceeding was initiated against him. A criminal case was

also initiated simultaneously under Sections 409/201 IPC.

He was acquitted in the criminal case. However, despite

acquittal, the departmental proceedings continued and

ultimately ended in an ex parte report to the effect that the

charges had been proved. The respondent Bank also filed a

suit against the appellant for recovery of the said sum. The

suit was decreed but the appellate court held that the Bank

failed to prove that the appellant had withdrawn or

embezzled the said sum. It was held that the Bank was not

entitled to recover the said amount. That judgment was not

challenged. Thus, the same attained finality. However, the

writ petition filed by the appellant, challenging the

disciplinary proceedings and the order of punishment was

dismissed by the Punjab and Haryana High Court. Without

taking note of the decision of civil court and relying on a

provision of the Bipartite Settlement, the High Court held

24

Page 25 that the departmental proceedings could have been initiated

even after the judgment of acquittal in the criminal case.

The appellant employee then filed an appeal in this Court.

Allowing the appeal, this Court held that the respondent

Bank invited findings of a competent civil court on the issue

as to whether the appellant had committed any embezzlement

or not. Embezzlement of fund was the principal charge

against the appellant in all the proceedings. The respondent

Bank failed to prove any of the charges before any court of

law. The judgment in civil matter having attained finality, was

binding on the respondent Bank.

It was further observed that in a case of this nature, the

High Court should have applied its mind to the facts of the

matter with reference to the materials brought on record. It

failed to do so and did not take note of the decision of the civil

court. It could not have refused to look into the materials on

record. Therefore, the impugned judgment was set aside.

30.In O.P. Gupta’s case (supra), this Court emphasised the

principle that any order which would cause adverse civil

consequences, can only be passed upon observance of the

25

Page 26 rules of Natural Justice. There is, therefore, insistence

upon requirement of a “fair hearing”. It was also

emphasised that long, continued suspension affects the

government servant injuriously. Since the order of

suspension entitles the government employee only to

“subsistence allowance”, resulting in penal consequences, it

should not be lightly passed. The court also emphasised

that the expression “life” does not merely connote animal

existence or a continued drudgery through life. These are all

well known principles of law. We only make a reference to

the same, since the cases have been cited.

31. Similarly the judgments cited by Mr. Shishodia reiterate

the principle that “no hard and fast rule” can be laid down

as to whether on reinstatement the employee is entitled to

full back wages or no back wages at all. All the cases

reiterate the principle that the facts and circumstances of

each case have to be examined by the concerned authority.

It has to take an informed decision on the basis of the

material on record. These judgments also reiterate that

acquittal of an employee would not automatically entitle

him to reinstatement or to payment of full back wages. The

26

Page 27 power is normally vested with the disciplinary authority to

hold a departmental enquiry, even upon conclusion of the

criminal trial where the employee is acquitted.

32.We have examined the entire issue keeping the aforesaid

principles in mind. In order to determine the issue relating

to the entitlement of petitioner to the salary and other

allowance(s) upon reinstatement, the matter needs to be

examined at the different stages/point of time. The first

stage commenced at the time when the petitioner was

initially suspended on 22

nd

December, 1985 w.e.f. 20

th

December, 1985. The petitioner, in our opinion, cannot

legitimately protest against his suspension, at the initial

stage, when he had remained in police custody for more

than forty eight hours, though unfortunately for

circumstances for which he was not responsible. This

suspension was naturally continued when he was facing the

trial for murder.

33.The next stage is when he was acquitted by the trial court

on 1

st

May, 2002. The observations made by the Additional

27

Page 28 Session Judge, Delhi whilst acquitting the petitioner are as

follows:-

“285. The case in hand does not pass the

muster. The circumstances that can be safely held

as duly proved would include only that there was

long-standing friendship between the accused and

the deceased, and discovery of dead body of the

latter in circumstances indicating unnatural death.

The prosecution has failed to prove beyond all

reasonable doubts the theory of accused having

taken an amount of Rs. one lakh 20 thousand from

the deceased on the promise of helping him in

securing appointment as Member in Board of

Revenue, or upon failure faced by the deceased in

getting the said appointment refusing to, or

haggling over, return of the said amount of money.

The theory of accused having returned Rs. one lakh

to PW 1 after the incident is suspect. There is a

inordinate delay in the lodging of FIR which, seen

against the backdrop of claims by all and sundry

that they suspected involvement of the accused

from the very beginning, has remained unexplained

and is bound to prove fatal to the case (AIR 1996 SC

607).

286. The evidence regarding “last seen” does

not inspire confidence and has rather come out as a

fabricated one. Efforts to cook up evidence in the

course of investigation, for example the recovery of

blood stained clothes of the accused at his instance,

coupled with unauthorized handling of the material

exhibits recovered from the scene where the dead

body had been found, have given the impression

that the same might have been doctored. This

erodes confidence in the prosecution case. The

investigation conducted smacks of bias and

prejudice under influence of certain elements

inimically placed vis-à-vis the accused. The benefit

of doubts arising as a result must accrue in favour

28

Page 29 of the accused, since suspicion, however strong,

cannot take the place of proof in the final analysis.”

These observations would indicate that the trial court

disbelieved the very foundation of the prosecution case. The

alleged motive has been found to be without any basis. The

judgment of the trial court clearly indicates that the evidence

produced does not reach even the bare minimum standard

required for establishing the guilt of the petitioner. The theory

of the prosecution that petitioner had demanded or taken

money from the deceased was not supported by any

independent evidence. The trial court also noticed that there

was an inordinate delay in the registration of the FIR, which

had to be seen against the backdrop of claims, by all and

sundry, that they suspected the involvement of the petitioner

from the very beginning. The trial court categorically observed

that in the peculiar circumstances of the case, the delay in

registration of the FIR was fatal to the case of the prosecution.

The trial court also observed that the evidence with regard to

“last seen” was fabricated and, therefore, did not inspire

confidence. It is also observed that the investigation in the

case had not been conducted fairly. The Trial Court was left

29

Page 30 with a definite impression that the evidence had been

“doctored”. The Court categorically observed that “the

investigation conducted smack of bias and prejudice under

influence of certain elements inimically placed vis-à-vis the

accused”. These observations, in our opinion, would bring the

present case within the realm of those cases which are often

described as cases of “no evidence”. Merely because the Court

ultimately used the term that prosecution has failed to prove

the case “beyond reasonable doubt” would not raise the

stature of the evidence, produced by the prosecution, in this

case from the level of being thoroughly unreliable.

34.As noticed above, Mr. Calla has submitted that the

suspension of the petitioner should have been revoked at

this stage. It will not be possible to accept the proposition

that as soon as the trial court had acquitted the petitioner,

the Rajasthan High Court was required to forthwith revoke

the order of suspension. Undoubtedly, the petitioner could

have been given a non-sensitive posting, not involving

judicial functions. But, it was not imperative for the High

Court to revoke the suspension, at that stage. It is a matter

30

Page 31 of record, that the prosecution agency decided to file an

appeal against the judgment and order passed by the trial

court, acquitting the petitioner. The appeal filed by the CBI

was admitted by the Delhi High Court and remained

pending till it was decided on 27

th

September, 2005.

Therefore, the conclusions recorded by the trial court, were

not final. They were liable to be reversed in appeal by the

High Court. Thus, during the said period/stage, it cannot

be said that the continuance of the suspension of the

petitioner was wholly unjustified. Merely because the High

Court could have revoked the suspension, would not render

the decision to continue the suspension, wholly unjustified.

35.The Rajasthan High Court was placed in a very piquant

situation till the petitioner’s acquittal was reiterated by the

Delhi High Court. The High Court, literally, had no option

but to place and keep the petitioner under suspension. It

was not as if the petitioner had unwittingly breached a

traffic regulation, which may not invite, even a frown from

the general public. It was also not where he may had a

minor altercation with someone which may well be

31

Page 32 overlooked by a reasonable man, as it would not involve any

moral turpitude. He was facing a trial for the offence of

murder, a crime of highest moral turpitude. Since time

immemorial, Judges have been placed on a very high

pedestal in every civilized society. Such high status is

accompanied by corresponding responsibility of a judge

maintaining an unusually high standard of dignity, poise

and integrity. There can be no two ways about it! Therefore,

the decision of the High Court to continue the suspension of

the petitioner can not be said to be wholly unjustified till his

acquittal by the Delhi High Court.

36.At this stage, we may just mention observations of this

Court in two decisions of this Court in relation to the high

standards of behaviour expected from a Judge. For

instance, in Daya Shankar Vs. High Court of Allahabad &

Ors. Through Registrar & Ors.

27

, this court observed as

under:

“Judicial officer cannot have two standards, one in

the court and another outside the court. They must

have only one standard of rectitude, honesty and

27

(1987) 3 SCC 1

32

Page 33 integrity. They cannot act even remotely unworthy

of the office they occupy.”

Further, in the case of C. Ravichandran Iyer Vs. Justice

A.M. Bhattacharjee & Ors.,

28

again while elucidating the

nature of the position held by a judicial officer, this Court

observed as under:

“21. Judicial office is essentially a public trust.

Society is, therefore, entitled to expect that a Judge

must be a man of high integrity, honesty and

required to have moral vigour, ethical firmness and

impervious to corrupt or venial influences. He is

required to keep most exacting standards of

propriety in judicial conduct. Any conduct which

tends to undermine public confidence in the

integrity and impartiality of the court would be

deleterious to the efficacy of judicial process.

Society, therefore, expects higher standards of

conduct and rectitude from a Judge......It is,

therefore, a basic requirement that a Judge's official

and personal conduct be free from impropriety; the

same must be in tune with the highest standard of

propriety and probity. The standard of conduct is

higher than that expected of a layman and also

higher than that expected of an advocate. In fact,

even his private life must adhere to high standards

of probity and propriety, higher than those deemed

acceptable for others. Therefore, the Judge can ill-

afford to seek shelter from the fallen standard in the

society.”

37.The decision of the High Court to keep the petitioner under

suspension has to be judged by keeping the aforesaid

28

(1995) 5 SCC 457

33

Page 34 standards in mind. Therefore, we are unable to accept the

submission of Mr. Calla that the suspension of the

petitioner was wholly unjustified after he was acquitted of

the criminal charges by the trial court.

38.We now come to the stage after the appeal against the

acquittal was dismissed by the High Court. It appears that

a Division Bench of the Delhi High Court re-appreciated the

entire evidence and dismissed the appeal filed by the CBI.

In its judgment, the High Court has clearly held that the

prosecution had failed to prove any motive for the alleged

murder. It is noticed by the High Court that the entire

prosecution case is based on circumstantial evidence. It is

further observed that the injuries suffered by the deceased

were not inconsistent with the plea that it was a case of

accidental death. The High Court also disbelieved the

witnesses of the prosecution with regard to the deceased

having been “last seen” alive with the petitioner. Having

disbelieved the evidence with regard to the motive and with

regard to the victim being “last seen” alive with the

petitioner, the High Court proceeded to examine the

34

Page 35 evidence with regard to the disclosure statement under

Section 27 and the recoveries of incriminating pieces of

evidence. Upon examination of each issue, the High Court

observed that the facts brought on the record “put a

question mark on the genuineness of the story of the

recoveries made”. The High Court disbelieved the recovery

of the clothes allegedly belonging to the deceased. The story

of recovery of blood stains was also disbelieved. Ultimately,

the High Court recorded the following conclusions:-

“43. In the present case, the major links between

the alleged offence and the accused are entirely non-

existent. The above discourse shows positively that

the prosecution has failed at every step to bring

home the guilt of the accused. The first step was to

prove that it was a case of murder rather than a

case of accident. The prosecution has failed to prove

beyond reasonable doubt that it was a case of

murder and not that of an accident.

44. The second step was to prove that the accused

and the deceased were last seen together soon

before the incident. The prosecution has also failed

to prove this fact beyond reasonable doubt. Apart

from what has already been stated above an

important fact in this case is that post-mortem

report along with the CFSL report, Ex.PW-34/DA

proves existence of alcohol in the stomach of the

deceased. This tends to support the accident theory.

45. The third step was to prove that the prosecution

had recovered incriminating articles, either

35

Page 36 following the disclosure statement or on its own

initiative. The prosecution has failed even at doing

the same. In this situation, even if the prosecution

is able to prove existence of motive, the same by

itself would not be of any value. The trial court has

disbelieved the story of motive. However, for us it is

not necessary to go into those details.

46. ………..The prosecution has failed to prove firstly

that there was any murder and secondly that the

accused is the one who committed it. There is

absolutely no merit in the appeal and the same is

accordingly dismissed.”

39.The acquittal of the petitioner having been affirmed by the

High Court of Delhi, in our opinion, it was necessary for the

High Court of Rajasthan to take a decision: (a) whether to

revoke the order of suspension and permit the petitioner to

perform judicial functions; (b) whether to hold a

departmental enquiry with regard to the receipt of money

allegedly received by him from the deceased; (c) as to how

the period of suspension was to be treated; (d) whether the

petitioner was entitled to full salary, part salary or no salary

at all for the period of suspension.

40.It appears to us that given the findings recorded by the

trial court, subsequently reiterated by the High Court of

36

Page 37 Delhi, the decision to continue the petitioner under

suspension, thereafter, was rather harsh. It is true that the

suspension of the petitioner was continued as the High

Court had decided to hold a departmental enquiry against

the petitioner on the charges that he had wrongly extracted

certain money from the deceased. But it is a matter of

record that both the trial court as well as the High Court

had found the entire story with regard to the alleged receipt

of money to be false. The enquiry was founded on the same

facts and the same evidence which have had been examined

by the trial court as well as the High Court. In such

circumstances, it was necessary for the High Court to

examine the findings of the trial court as well as the High

Court in detail before taking a decision to initiate

departmental proceedings against the petitioner, founded

on the same set of facts and the evidence. It is apparent

from the record that no such examination of the judgment

was undertaken by the High Court. Even after taking a

decision to initiate departmental proceeding against the

petitioner, it was no longer imperative to continue the

petitioner under suspension. The petitioner was no longer

37

Page 38 charged with any criminal offence as both the trial court as

well as the High Court had literally concluded that the

charges against the petitioner had been concocted. The

petitioner had been subjected to continued suspension

since 22

nd

December, 1985. During the period of

departmental proceedings, even if the petitioner was not to

be assigned any judicial work, the High Court could have

conveniently given him suitable posting on the

administrative side. In our opinion, from the time of

dismissal of the appeal by the Delhi High Court, the

continued suspension of the petitioner was wholly

unjustified.

41.Again it is a matter of record, that even in the departmental

enquiry the charges against the petitioner were not proved

and he was exonerated of the same. It was only at that

stage that the suspension of the petitioner was revoked. The

petitioner had already moved the present writ petition

immediately after the order of acquittal was upheld by the

Delhi High Court. The enquiry proceedings were completed

during the pendency of the writ petition. Undoubtedly, the

38

Page 39 order of suspension was revoked by the High Court

on 26

th

March, 2008 but without giving any direction as to

how the period of suspension was to be treated. It was only

subsequently that the matter with regard to regularization

of his period of suspension was considered by the Full

Court in the meeting held on 29

th

November, 2008. Even at

that stage though the Full Court passed a resolution that

period of suspension shall be treated as period spent on

duty, but it was to be without payment of any salary except

for the subsistence allowance already paid to him. On the

basis of the aforesaid resolution, the High Court passed the

order dated 24

th

January, 2009. So even by order dated 24

th

January, 2009, the petitioner was granted only partial

relief. This necessitated the amendment of the writ petition

by the petitioner questioning the legality of the aforesaid

order. It was only at that stage that this Court by order

dated 5

th

April, 2011 directed the High Court to pass

appropriate orders under Rule 54 of the Rules. It appears

even at that stage the High Court did not consider it

necessary to grant any further relief to the petitioner.

39

Page 40 42.We are of the considered opinion, having regard to the

sequence of events narrated above, that it would be unjust

to deny the salary to the petitioner with effect from the date

the appeal against acquittal was dismissed by the High

Court of Delhi. We see no cogent reason as to why it was

necessary to continue the suspension of the petitioner

during the pendency of the departmental proceedings.

There was no distinction between the facts or the evidence

relied upon in the criminal trial as well as the department

proceedings. This apart, the petitioner had been acquitted

of any involvement in the crime of murder. Whilst exercising

its jurisdiction under Rule 54, it was necessary for the High

Court to pass a detailed and reasoned order as to whether

the period of suspension was wholly unjustified.

Undoubtedly, the power under Rule 54 is discretionary but

such discretion has to be exercised reasonably and by

taking into consideration the material relevant to the

decision. Upon acquittal of the petitioner from the criminal

charges, it was no longer necessary to keep him under

suspension during the pendency of the departmental

enquiry. In our opinion, the High Court failed to exercise its

40

Page 41 jurisdiction properly under Rule 54, as directed by this

Court in the order dated 5

th

April, 2011. In our opinion, the

suspension of the petitioner ought to have been revoked

upon acquittal by the High Court even during the pendency

of the departmental enquiry.

43.This now leads us to the last submission of Mr. Calla that

upon exoneration in the departmental proceedings, the

petitioner was required to be considered for promotion from

the date a person junior to him was promoted.

44. In view of the authoritative judgment rendered by this

Court in the case of Jankiraman (supra), the submissions

made by Mr. Calla would have to be accepted. In the

aforesaid judgment it was held that:-

“26. We are, therefore, broadly in agreement with

the finding of the Tribunal that when an employee is

completely exonerated meaning thereby that he is

not found blameworthy in the least and is not

visited with the penalty even of censure, he has to

be given the benefit of the salary of the higher post

along with the other benefits from the date on which

he would have normally been promoted but for the

disciplinary/criminal proceedings.”

41

Page 42 45.In this case, it is a matter of record that upon exoneration

in the departmental enquiry, the petitioner was reinstated

in service. No punishment was inflicted on him at all.

However, during the pendency of the criminal trial as also

the departmental proceedings, he was not considered for

promotion, when the cases of persons junior to him were

considered. In our opinion, the High Court erred in

directing in the Full Court Resolution dated 29

th

November,

2008, and the communication dated 24

th

January, 2009

that the petitioner shall not be entitled for any promotion.

46.We, therefore, partly allow the writ petition. We reject the

submissions of Mr. Calla that the suspension of the

petitioner was rendered wholly unjustified upon acquittal by

the trial court. We also reject the submissions of Mr. Calla

that the suspension of the petitioner was wholly unjustified

during the pendency of the appeal before the High Court.

We, however, hold that the continued suspension of the

petitioner during the pendency of the departmental

proceedings was wholly unjustified. The petitioner is,

therefore, held entitled to full pay and allowances from 27

th

42

Page 43 September, 2005, i.e. the date of the judgment rendered by

the Delhi High Court onwards. We further hold that the

petitioner was entitled to be considered for promotion

notionally from the date when an officer junior to him was

promoted. We, therefore, direct the High Court to consider

the case of the petitioner for promotion (if he otherwise

satisfies the requirements as per the rules) from the date

when a person junior to him was considered and promoted

to the next higher post. Let such a decision be taken by the

High Court within a period of three months from the date of

receipt of this order. We further direct that the petitioner

would be entitled to all consequential benefits, such as

salary and other allowances by treating him on duty with

effect from the date the appeal against acquittal was

dismissed by the Delhi High Court and after fixing his last

pay drawn correctly. The consequential benefits shall be

paid to him with 6% interest from the date of the dismissal

of the appeal by the High Court on 27

th

September, 2005.

The enhanced retiral benefits shall be released to him

within three months of the receipt of a copy of this order.

43

Page 44 47.Assuming that, the Rajasthan High Court wanted to

conduct its own departmental enquiry after the acquittal of

the petitioner being confirmed by the Delhi High Court, his

suspension during that period was wholly uncalled for

because of which he unnecessarily suffered and had to

litigate further. We, therefore, award costs of Rs. 25,000/-

to the petitioner to be borne by the respondent High Court.

..………………… .….…....J.

[Surinder Singh Nijjar]

..………………… .….…....J.

[H.L.Gokhale]

New Delhi;

November 27, 2012.

44